Curry v Aughey[2003] QSC 172

SUPREME COURT OF QUEENSLAND

[1] de JERSEY CJ:  The plaintiff is presently an unmarried man born on 14 November 1955.  He suffered injuries as a result of a collision, on 11 December 1998 at about 9:30am, between a Toyota Dyna truck he was driving in the course of his employment, and a bus driven by the first defendant Mr Aughey.  The collision occurred at the intersection of Gold Coast Highway and Seaview Avenue, Mermaid Beach.  Liability and quantum are both in issue.

[2] As to liability, evidence was given by the plaintiff, Jason Cooper who observed part of the incident, Senior Constable Robinson as to versions of the events given later, Mr Aughey and another bus driver Mr Rohrlach.

[3] The plaintiff suffered a closed-head injury involving severe traumatic brain damage, leading to 49 days' post-traumatic amnesia.  I accept Dr Cameron's evidence (exhibit 16) that the plaintiff would probably have experienced retrograde amnesia of the events leading up to the collision of at least one minute's duration.  It is improbable that the plaintiff's claimed recollection of the events leading up to the accident, given in oral evidence, is based on recollection rather than reconstruction.  Accordingly I will not rely on that evidence.

[4] I found the evidence of Mr Aughey vague and unhelpful, not reliable in salient respects.  On the other hand, I found Mr Rohrlach a completely reliable witness, as I did Mr Cooper.  Each of those witnesses should be regarded as independent.  While I accepted also the evidence of the police officer, it did not, except in one respect to which I come, significantly advance the matter.

[5] On the basis of the evidence of Mr Rohrlach and Mr Cooper, I find that the plaintiff, approaching the intersection and travelling south, drove his truck into the right turn lane intending to turn across the northbound Gold Coast Highway carriageway into Seaview Avenue.  He stopped his vehicle and remained stationary for about 15 seconds.  At that time, traffic in the three northbound lanes of the highway just to the north of the intersection, was stationary.  In the far westerly of the two (only) northbound lanes on the southern side of the intersection, Mr Rohrlach was seated in his stationary bus.  It was possible for a vehicle to move safely, from the position of the plaintiff's truck, along the path which had been left free (equating generally to the area of the intersection itself) with a view to executing the right turning manoeuvre which the plaintiff intended to execute.  At the end of that roughly 15 second interval, the plaintiff began his right turning manoeuvre (I do not find that Mr Rohrlach waved him on, as the plaintiff said occurred, but the reservation of the empty "channel" implicitly invited the plaintiff to proceed as he did).

[6] At about the time the plaintiff began to drive his truck to the right, the traffic lights to the north of the subject intersection, controlling that highway's intersection with Pacific Fair Drive, changed to green.  Pacific Fair Drive is the next intersecting road to the north of the Seaview Avenue intersection.  It was the circumstance that those lights were previously red which explained why the northbound traffic on the highway, to the north of the Seaview Avenue intersection, had been stationary.  As the plaintiff moved off, the northbound traffic between Seaview Avenue and Pacific Fair Drive also began to move off.  I find that traffic had been stationary in all of the three northbound lanes which existed on the northerly side of the highway's intersection with Seaview Avenue (p 182) (as I have indicated, there were only two such lanes on the southern side of the intersection).

[7] The plaintiff's truck advanced across the intersection apparently "with caution" (evidence of Cooper), which I took to mean at a safely slow speed.  Just as the truck passed cautiously in front of Mr Rohrlach's stationary northbound bus in the most westerly of the two northbound lanes, the plaintiff's truck collided with a northbound bus driven by Mr Aughey.  Mr Aughey had been driving his bus towards the intersection from behind Mr Rohrlach's bus.  As he approached, Mr Aughey had moved his bus from the westerly of the two northbound lanes, to the left, into an area designated primarily for parking and as a loading bay.  That area, surrounded by an unbroken white line, may conveniently be seen from the photograph exhibit one.  On the police evidence, I find that Mr Aughey's bus was travelling at 55-60kph.  Mr Aughey was proposing to move through what I have termed that parking/loading area, directly across the intersection, into the third (then just commencing) westerly of the three northbound lanes beyond the intersection (to the north).

[8] Under the Traffic Regulation 1962 then applicable, it would appear Mr Aughey should not effectively have overtaken Mr Rohrlach's bus by moving to the left out of the confines of the northbound lanes in order to utilize the parking/loading area (r 23); and once in that area, should not have moved out of it without giving way to all other vehicles (r 36).

[9] The plaintiff was entitled to proceed as he did, driving his truck cautiously across the intersection to the right.  He should have appreciated the possibility that a cyclist or cycle rider may have emerged from the parking/loading area, or a previously parked vehicle, although in the latter case at a slow speed and giving way.  None of those possibilities eventuated.

[10] The plaintiff should not however reasonably have foreseen the possibility that a bus travelling at a speed of 55-60kph would have overtaken Mr Rohrlach's bus on the left through the parking/loading area, proceeding at a speed of that substantial order (even if perhaps somewhat less) into the intersection.  The reality was that because of the mass of Mr Rohrlach's stationary bus, the plaintiff had no capacity to see Mr Aughey's bus until the moment of the collision, by which time it was too late for the plaintiff to have taken any effective evasive action.

[11] Mr Aughey was negligent in driving as he did to the left of Mr Rohrlach's bus with the intention of proceeding through the intersection; in driving too fast; in failing to give way to the plaintiff's truck as he (Mr Aughey) emerged from the parking/loading area; and in failing to keep a proper lookout for vehicles which may emerge as did the plaintiff's from behind Mr Rohrlach's stationary bus.

[12] I do not consider that the plaintiff was contributorily negligent.  There was, for reasons already expressed, no aspect in which he failed to take reasonable care for his own safety. 

[13] Mr Grant-Taylor SC, who appeared for the second defendant, referred me to a number of cases of claims arising in circumstances generally like these.  Mousa v Marsh [2001] NSWCA 317 perhaps most closely resembles this.  But as it is trite to observe, the resolution of these cases depends very much on their own particular factual circumstances, and Mousa may at once be distinguished factually for the absence of a choked intersection, and movement, as here, through a parking/loading area.

[14] I find the first defendant solely responsible for the collision and the plaintiff's consequent loss and damage.

[15] Before turning to the issue of quantum, there is an aspect of procedure which arose during the trial upon which I should make some observation.

[16] When the accountant Mr Thompson was called, and his reports exhibits nine and 10 were admitted, the calculation of future economic loss being based on assumed $35,000 per annum earnings for a scuba diving instructor, Mr Grant-Taylor said that the basis for that assumption must be proved.  He was right to give that intimation.  See Morris v Boothey, a recent special leave decision of the High Court reported in the Legal Reporter of 6 May 2003, where although special leave was refused because the point of principle did not arise, there is reference to a 1985 decision of the South Australian Full Court in Scuteri v Wood which suggests a good rule of practice:  that a party challenging a factual assumption of significance should foreshadow to the other side that the basis for the assumption must be established.  In response, Mr Williams QC for the plaintiff said that the next witness, Mr Taylor, would say that he currently earned $40,000 from that occupation.  It emerged Mr Williams held no proof of evidence or other document relating to that:  there was no suggestion none had been generated for the purpose of avoiding some obligation under the Uniform Civil Procedure Rules.

[17] Mr Grant-Taylor objected to the admission of that evidence from Mr Taylor, on the basis of non-compliance by the plaintiff with rr 547 or 548 of the Uniform Civil Procedure Rules.  There was compliance with r 547, because the statement of loss and damage gave the relevant "details", specifying $35,000 as the basis of calculation of the claim in respect of future economic loss (and also referring to care given by Mr Taylor – the matter of another objection sufficiently covered by what I am about to say).  Further, there was no departure from r 548(1)-(3), because there was no document which had not been disclosed. 

[18] Mr Grant-Taylor relied in the end on a contention that relevant "evidence" had not been identified in the statement of loss and damage in terms of r 548(4), so that that evidence could only be given at the trial by special leave.  It was accepted there was no decision of the Court of Appeal covering the point (Campbell v Jones & Anor [2002] QCA 332 is distinguishable).  I indicated that if necessary I would give special leave, because the point was sufficiently identified in the statement of loss and damage, and the plaintiff was now seeking merely to make good the point by oral evidence. 

[19] It was suggested, however, that r 548(4) effectively obliged the plaintiff to provide the defendant in advance with proofs covering all evidence bearing on loss.  My primary view is that r 548(4) should be read as referring to "evidence" which has found its way into documentary form which must therefore be referred to in the statement of loss and damage under the preceding sub-rules of r 548.  That is because for purposes of (4), the preceding sub-rules establish a documentary context.  In any case, it should in my view have been regarded sufficient for the statement to identify, as the "evidence", the rate of $35,000 on which the claim is based, without the need for the statement to go on to identify the source of that "evidence".

[20] The point was of no moment to the resolution of this case, it should be observed, because I indicated to Mr Grant-Taylor I would accommodate him with an adjournment if sought, so that he could meet the evidence to be given should it embarrass him.  He did not seek any such accommodation.  I am expressing my reasons for taking this course, albeit it in this brief form, because Mr Grant-Taylor requested me to do so, and because there is, I was told, some uncertainty about the operation of r 548(4) – to which the Rules Committee may care to give some consideration.

[21] I turn now to the matter of quantum.

[22] The plaintiff's injuries are comprehensively listed in para 6 of the statement of claim which, rather unusually, has been admitted by the amended defence (para 1(a)).  That admission is particularly relevant to one aspect of the plaintiff's claim, which is that he suffered injury to his thoracic spine, because Mr Grant-Taylor sought to rely on "uncontested evidence" from Drs Corbett and Dodd excluding any causal relationship between that injury and the accident.  I accept Mr Williams' responding submission that, there being no amendment, the second defendant is bound by its pleading.

[23] When the plaintiff was admitted to the Gold Coast Hospital following the accident, it was noted that he had suffered a closed head injury involving severe traumatic brain damage, a fracture of the left clavicle, fractures of the left-side second to fourth ribs, with associated pulmonary contusion, and lacerations to the left ear, the neck and the left arm.  He was hospitalised at the Gold Coast and Brisbane for a total of approximately 10 weeks, then discharged into the care of his mother Mrs Balderstone, who gave evidence.  The plaintiff underwent physiotherapy, speech therapy and occupational therapy.

[24] He suffered a significant brain injury which has left him with a substantial permanent impairment, reflected principally in short term memory problems.  He has adjusted to this problem by using an electronic "organizer", a diary and "post it" reminder stickers.  Also, members of his family and friends prompt him in relation to forthcoming appointments etc.  While the plaintiff's mother and his sister Mrs Robertson gave evidence of the plaintiff's substantial forgetfulness (for example, when shopping, finding his way, performing allotted tasks), the plaintiff said under cross-examination that he could accomplish most demands of independent daily living – cooking meals, attending to housework, driving a motor vehicle, doing the shopping.  His family members suggested in their evidence that this did not reflect the true position.  With some support from the medical evidence, Mr Williams terms it a case of "over presentation" on the part of the plaintiff.

[25] Certainly the neuropsychological testing (Drs Field and Douglas) suggested a drop in the plaintiff's IQ to border-line/average level, and substantial specific cognitive deficits in a number of areas.  In particular, Dr Field (exhibit 11) assessed a "moderate to severe" deficit in memory and concentration.  The psychiatrist Dr Mulholland agreed with that assessment.  Dr Field felt this problem would render the plaintiff "unemployable in the long term," and that the plaintiff would continue to be dependent to some extent on his family.

[26] On the other hand, the neurologist Dr Corbett put the deficits in the mild or moderate, not moderate/severe range, producing a likely permanent 5/7 percent impairment (exhibit 17).  Dr Cameron, whose evidence impressed me, considered the plaintiff not so impaired as to require constant supervision, or to preclude his working, say, in the maintenance of a nursery, or on a production line with well guarded machinery, or as a taxi driver.

[27] Mr Williams criticized Dr Corbett's assessment, as not having been based on the testing results of Dr Field and Dr Douglas, they being the best available; and Dr Cameron's as to employability, for that doctor's lack of detailed knowledge of current commercial requirements of particular occupations.  Mr Williams also stressed Dr Cameron's reliance on the plaintiff's own account of his capacities, without access to the views of other family members.

[28] It is very difficult in this case to reach a view on the likely extent of the plaintiff's actual deficits in any precise way.  I accepted Dr Cameron's view that one should not unduly focus on the results of neuropsychological testing, although those results are obviously of significance.  Further, although the evidence of the plaintiff's mother Mrs Balderstone and his sister Mrs Robertson was important, I fear it involved a degree of unconscious exaggeration as to the plaintiff's plight.  The plaintiff's mother, for example, substantially overstated the extent to which she was necessarily involved in attending to the plaintiff's problems referable to his accident disability.  I found it significant that the plaintiff's sister told Dr Corbett on 22 January 2001 that the plaintiff was "quite good in looking after himself" and kept his residence tidy, a conversation which she said she could not now recall.  Then there was the evidence of Jason Taylor, to the effect that the plaintiff had been able to live independently for a not insubstantial period reasonably well. 

[29] In the end, I consider it likely that the true position is not as tolerable to the plaintiff as his own evidence would suggest, but on the other hand not as intolerable as the evidence of his mother and sister would suggest.  The true position is somewhere in between.  While I accept that the plaintiff suffered a serious head injury, he is, on the evidence I prefer, left with a moderate rather than severe memory deficit, and he has learned to accommodate it, involving, however, some continuing dependence on others.  I accept the submission made by Mr Grant-Taylor that the plaintiff's TAFE results tend to support these views.  His results over the year 2000 to 2003 show that of all the subjects he undertook, there was only the one occasion, in one subject, where he did not pass, and that he demonstrated himself capable of advancing from one level to the next in his TAFE courses.  I appreciate that he was being given special tuition, but I nevertheless find those circumstances of some significance as supporting the view to which I otherwise came based upon my assessment of the witnesses. 

[30] As to employability, I accept Dr Cameron's views, while acknowledging that the plaintiff probably would not be attractive to an ordinary commercial employer.

[31] As to the plaintiff's physical injuries, Dr Langley suggested a 12 percent spinal disability (exhibit 2), and Dr Tomlinson (exhibit 14) a five percent whole body disability relevant to that.  In addition, a closed fracture of the left clavicle produced a five percent whole body impairment.  I accept the plaintiff's evidence that he experiences aching in the area of his ribs, and pain from time to time which causes difficulty in his sleeping, and that he has a continuing balance problem.

[32] There was also evidence from the plaintiff's family members of his being anxious, or as it was put in a vernacular sense, paranoid.  Dr Mulholland indicated (exhibit 8) that, contrary to the doctor's expectation, the plaintiff showed no signs of clinical depression, but the doctor assessed a "mild" permanent psychiatric impairment.  I accept that the plaintiff has suffered consequent mood disturbance, and now becomes despondent where that would not previously have been the case.

[33] The risk of the onset of post-traumatic complications such as late onset epilepsy is now minimal.  I should add that having regard especially to the evidence of Drs Mulholland and Tomlinson, I was not persuaded by Dr Field's evidence that the plaintiff's condition caused by the accident would lead to his suffering more seriously from the ordinary process of aging as the years go on.

[34] For the component for pain, suffering and loss of amenities, Mr Williams sought an award of between $100,000 and $125,000, and relied on Mott v Boggan & Anor [1998] QSC 265, a decision of Wilson J given on 12 November 1998.  But Mott, who received $100,000 was only three years old when injured.  The award in Ferguson v Calnan & Anor [2002] QSC 342 provides a better guide.  I allow $75,000. 

[35] In calculating interest in respect to that component, I note the plaintiff's interim receipt, in March 2001, of a PPD lump sum settlement from WorkCover in the amount of $14,525.  Taking that sum into account, interest should be assessed at the rate of two percent on only $25,000 of past general damages over the period of 1,643 days which has elapsed between the date of the accident (11 December 1998) and the present, which yields $2,250.68. 

[36] For the claim in respect of past economic loss, the plaintiff relies on reports of the forensic accountants Vincents, exhibits nine and 10.  Mr Thompson, an accountant, gave evidence in support of those reports.  The more recent report exhibit 10 raises two scenarios, the first involving the plaintiff's employment until retirement as a storeman/driver, which was his pre-accident employment; and the second contemplating his employment as a storeman/driver until mid-1999 and thereafter as a scuba diving instructor. 

[37] The plaintiff gave evidence, which I accepted, as to his progress, before the accident, towards obtaining a scuba diving instructor's certificate.  On that evidence (p 32) the plaintiff would not have obtained that certificate until he was in his mid to late fifties.  But that aside, there was no acceptable evidence, as to the availability of employment as a diving instructor, from which I could discern the likelihood of the plaintiff's obtaining and maintaining such employment.  There was limited evidence from Mr Taylor as to his own employment:  that did not however in my view provide the necessary broader basis for a satisfactory resolution of that issue.  There was no adequate evidence to justify my proceeding except on the basis that but for the accident, the plaintiff would likely have continued on as a storeman/driver – notwithstanding what I accept was the plaintiff's substantial personal interest in scuba diving.  I therefore proceed under scenario one.

[38] In calculating the amount of the loss, Mr Thompson has added to the lost earnings a component for the loss of use of a motor vehicle (see para 5.3.5).  There was no evidence from the plaintiff to establish the private use entitlement on which Mr Thompson relied.  The plaintiff's scant evidence on the point was confined to use of a "company vehicle" to travel to and from work (p 33, lines 8-10).  Further, as Mr Grant-Taylor pointed out, there is no mention of any such "fringe benefit" in appendix one to Mr Thompson's report, being a letter from the plaintiff's employer to the plaintiff's solicitors of 14 September 1999.  I accept his submission that so far as the plaintiff's evidence went, it did not establish loss of a compensable benefit (cf Sharman v Evans (1977) 138 CLR 563, 577).

[39] I accordingly allow, after making the relevant adjustments to the Vincents' figures, $10,779 for 1999, $21,292 for 2000, $22,826 for 2001, $23,545 for 2002 and $21,740 for 2003, totalling $100,182.

[40] Mr Grant-Taylor then submitted there should be a ten percent reduction for the contingency of unemployment, and he pointed to a receipt of $3,215 Centrelink benefits in 1998.  I accept on the plaintiff's evidence that he was in regular long term employment before the accident.  That sum may well have related to the period for which he was in Ireland endeavouring to resuscitate a failing marriage.  The second defendant's ultimate difficulty in advancing this submission is that nothing was put to the plaintiff in cross-examination to form a basis for doubting that he would over this period have enjoyed full employment, as he did over a lengthy period before the accident save for the period of nine months in relation to Ireland.  I therefore do not consider that ten percent reduction justified. 

[41] As to interest on past economic loss, allowance must be made for the plaintiff's receipt of net weekly workers' compensation benefits of $41,101.24 and Centrelink benefits of $26,036.35.  Subtracting those amounts from $100,182, yields $33,044.41.  I allow interest at five percent for 1,643 days, which amounts to $7,437.26.

[42] As to past loss of employers' contributions to superannuation, calculated proportionately to Mr Thompson's scenario one allowance of $8,443 (in respect of total past economic loss of $113,517), the amount allowed should be $7,451.19 (calculated proportionately to past economic loss in fact of $100,182).

[43] I turn to future economic loss.  I have already mentioned my preference for Dr Cameron's view that the plaintiff retains some limited residual working capacity.  He can work in unskilled, structured employment settings which do not require much concentration or mental input.  I acknowledge that the availability of such employment is limited, but that capacity should be reflected by what I would regard as a modest allowance in the calculation by way of deduction.  I propose to deduct $10,000 on that account.  As to contingencies, I will discount by ten percent for the prospect, for example, of his having suffered other injury and not being able to find work.

[44] I adopt a continuing rate of loss of $451.05 net per week, discounted at five percent per annum over 17.5 years (multiplier 614.1) to age 65 years.  That yields $276,989.81.  From that I deduct ten percent for contingencies ($27,698.98) leaving $249,290.83.  I then deduct a further $10,000 in respect of the residual earning capacity, which leaves $239,290.83.

[45] For future loss of employers' contributions to superannuation, calculated proportionately to Mr Thompson's scenario one figure of $26,130 (based upon future economic loss of $313,267), the amount allowed should be $19,959.55 (calculated proportionately upon the appropriate allowance for future economic loss of $239,290.83).

[46] I turn to past care.  I have already expressed considerable reservation about the evidence of the plaintiff's mother and sister as to its extent.  While I accept that the plaintiff probably needs more assistance than his evidence at pages 33-37 would suggest, I see no reason not to act on the evidence of the plaintiff's witness Cameron Fraser, an occupational therapist.  Mr Fraser's views were formed after telephone consultation with the plaintiff's mother and sister.  I accepted Mr Fraser's oral evidence given at trial.

[47] On that basis, the appropriate allowance for the value of care to date is $17,745, calculated as follows:

[48] Interest on this component should be allowed at five percent covering a period of 1,569 days since the plaintiff's discharge from hospital on 23 February 1999, which yields the sum of $3,813.96.

[49] I turn to future care.  On the evidence I accept, there should be no need for any more than approximately one hour's ongoing care per week, which at $15.00 per hour discounted at three percent over the remaining 31 years of the plaintiff's life expectancy (multiplier 1,059.2) yields a component I set at $16,000.

[50] I reject the scenario of future compounded deterioration in the plaintiff's intellectual and cognitive faculties, as postulated in the report of 30 December 2002 exhibit 12, for reasons already expressed.

[51] In light of Dr Alcorn's views, allowance should be made for expenditure for recommended counselling, under which I allow $5,719, the amount nominated by Mr Grant-Taylor, which in fact exceeds that sought by the plaintiff.

[52] For future medical and pharmaceutical expenses, I allow $3,000, which obviously represents a broadly based assessment on my part of the plaintiff's future needs in those directions. 

[53] Special damages have been agreed at $41,000, of which $15,000 is to bear interest (calculated at four percent over 1,643 days, $2,700.82). 

[54] The total award is $541,550.29.

[55] There should in my view be a protection order.  I say that in light of the observations made by Dr Mulholland in exhibit eight (para 14.7) and Dr Alcorn in exhibit 18, p 8. 

[56] The order I will make is that the further hearing of the proceeding be adjourned to a date to be fixed, pending the submission by counsel of a draft order to give effect to this judgment (and providing for any necessary statutory repayments), to be agreed, or failing agreement to be the subject of a further hearing, with costs reserved.