Anthony Glohe v Nicholas Simington

Witnesses

1. However there was another witness to the collision. It was Mr Formby. He was sitting in the driver's seat of Mr Glohe's car watching the scene unfold in his rear view mirrors. He said the collision was Mr Simington's fault. Mr Simington swerved towards Mr Glohe and hit him said Mr Formby.
2. Mr Toomey SC argues that I should accept Mr Formby and find in favour of his client. Mr Ryan argues that I should reject Mr Formby. So my view about Mr Formby as a witness is obviously an important issue in the case. I will turn now to an assessment of Mr Formby's evidence.
3. Mr Ryan says Mr Formby lacks precision and consistency, that he was exaggerating and is not creditworthy (MFI 18.1[6]). His evidence is unreliable argues Mr Ryan (MFI 18.1[48]).
4. Over MFI 18.1[8 - 17], Mr Ryan points to inconsistencies in Mr Formby's evidence relating to where Mr Glohe was standing behind the car. It is true that estimates given by Mr Formby on different occasions vary. However, it must be remembered that Mr Formby was viewing this scene in a rear view mirror. Distances from the car would not be easy to judge in any event. He expressed the distances in terms of approximations using expressions such as "could" and "would". For example, at T44 he said, "Well, that's what it seems like". I expect Mr Formby's view about whether or not Mr Glohe stepped on to the road beyond the car was better because of the driver's side rear view mirror being in a better position to see that alignment. Mr Formby says in his first account on the night (within two hours) that Mr Glohe "walked out onto the road". That is difficult to reconcile with "but not out on the roadway" given two months later. But that might be a nuanced meaning, trying to express that Mr Glohe was not very far out on the road itself. He might have been making that distinction at T41.28.
5. I think I can rely on his evidence that Mr Glohe stepped beyond the car on to the roadway. Mr Glohe says as much. But I cannot say how far behind his own car Mr Glohe was.
6. Mr Ryan points to evidence about the lights of Mr Glohe's car. I would not expect Mr Formby to remember whether he had his foot on the brake or the parking lights on but his evidence is consistent that there was some form of light from the back for the car. That lack of precision (about the source) does not render him unreliable. He consistently refers to a source of light. I also accept both Mr Toomey's arguments at T162 (1/6/16 points 1 and 2).
7. Mr Formby's reasoning about which part of Mr Simington's car hit Mr Glohe (MFI 18.1[21] f) was inferential. But it was a sound process: "Well, it had to have done it, because the bloody tyre impression was on his boot" (T50). He readily acknowledges the limitations on his line of sight. For example at T77 he said - "In the silhouette image I got in the mirror it looked as if he was hit by the car, by the front wheel. That's all I can say. I wasn't outside with a micrometer."
8. Mr Ryan argues that Mr Formby's account of Mr Simington's car swerving into Mr Glohe "does not stand up to scrutiny" (MFI 18.1[32]). If the account is true, Mr Simington would have collided with Mr Glohe's car. The difficulty with this argument is that Mr Formby was describing a fluid event. Times and distances are necessarily estimates. Mr Formby is clear that Mr Simington swerved in, hit Mr Glohe then drove on. Mr Ryan's argument has to rely on retrospective reconstruction of the fluid event. The fact remains that Mr Simington did not collide with Mr Glohe's car. It was obviously close because Mr Formby thought his car would be hit as Mr Simington was coming back out of the swerve.
9. There was a lot of focus in evidence and addresses on the opinion of an expert witness called on behalf of Mr Simington, a Mr Urquhart. He said that if "the orientation of the vehicle is diverted to the left or sharply to the left given Mr Glohe's proximity to the back corner of the car, at that point there is very, very little room for a corrective basic manoeuvre that would mean that Mr Simington's vehicle would in fact not collide with the parked vehicle" (T52 31/5/16).
10. Mr Ryan argues that I should accept this opinion of Mr Urquhart and reject the accounts given by Mr Formby and Mr Glohe. The weakness in this argument is that Mr Urquhart's opinion is itself dependent on the eyewitnesses' accounts. Mr Urquhart frankly and fairly acknowledged this when he said the following (T131 31/5/16): "Can I say that the only physical evidence in this case is the absence of all physical evidence, aside from a broken leg. There was no physical evidence to the vehicle. That was in effect the only physical evidence, the absence of physical evidence. Everything else in this case relies upon witness testimony. There is no other physical marks. There's no tyre marks, there's no damage to the car. It is the complete absence of physical evidence which really, in the absence of any testimony or any account, I am unable to answer in any way how this collision occurred except to say that there was no physical evidence of contact to the passenger side of the car."
11. Mr Urquhart's opinion is based on estimates of distances and calculations of timing. The estimates of distances are no more than that estimates. Mr Formby acknowledged as much.
12. There is another problem. Mr Ryan would have me find that the incident could not have happened as Mr Formby insists (by Mr Simington swerving in towards Mr Glohe) and that I should therefore reject his evidence or, at least, give it little weight. But reasons suggested for attributing little or no weight to Mr Formby were not put to him. Examples of those reasons appear at MFI 18.1[102] and MFI 19[18]. Mr Ryan did not put to Mr Formby that he was fabricating his evidence or was biased in favour of his neighbour. Mr Ryan says the evidence is unreliable. But the alternative scenarios developed in MFI 18.1[32]f are no more than theories that test the evidence. The main theory is articulated at MFI 19[18]. The sequence of evidence to which those theories are applied is fluid and the dimensions of time and space are estimates. Mr Urquhart volunteered as much at T133 - 134 (31/5/16). Another example of something not put is a discussion between Mr Formby and Mr Glohe about the accident. That was explored at T51 (23/11/15) but no motive to assist Mr Glohe in this case was put by Mr Ryan. Mr Ryan acknowledged as much at T214 (7/6/16). The highest Mr Ryan could put it appears at T214 (7/6/16) which is that: "There seems to be a significant coincidence in the position where Mr Formby said the plaintiff positioned himself when he first got out of the vehicle and maybe 2 to 3 metres to the rear of the vehicle and three feet from the kerb, which is the exact position that has been pleaded in the statement of claim".
13. I am not critical of Mr Ryan. He was no doubt limited by his instructions, information to hand and the code of ethics.
14. If I accept Mr Formby's testimony then Mr Urquhart's opinion falls away. The rejection of the plaintiff's case depends on me accepting as reasonably precise distances involved in observations made at night through a rear view mirror by a man who had no reason to focus on distances as distinct from the gross movements of the person and the vehicles involved: see T81 (24/11/15).
15. Mr Glohe was probably standing on the roadway to some extent beyond the line of the parked car. That would explain why there was no collision between the cars, but why Mr Formby thought there would be. It is consistent with Mr Formby's account given to police on the same night (MFI 5).
16. Mr Formby was a strong witness who was not exposed as evasive, defensive and abrasive, yes, but not evasive: see for example T166 (1/6/16). I accept him as a witness who was doing his best to give an account of what he saw whilst also acknowledging limitations and what he was not in a position to see.
17. I accept Mr Formby's evidence of what he consistently in every account says he saw that Mr Simington's car swerved to the left and hit Mr Glohe.
18. I will now examine some of the other witnesses.
19. Turning to Mr Glohe's evidence, Mr Ryan argues (at MFI 18.1[49]f) that Mr Glohe's evidence is both unreliable and cannot be reconciled with Mr Formby's evidence. There are relatively minor discrepancies between Mr Glohe's account of events leading up to the collision and Mr Formby's account. Again this is to be expected. Mr Glohe was inebriated and had no reason to recollect detail but would obviously recall a more dramatic road event. There is an inconsistency between Mr Glohe saying he was behind his car and Mr Formby saying he was beyond his car but that is one area Mr Formby agreed he could not be sure about "really I couldn't tell you" (T81) as Mr Ryan concedes.
20. It is true that Mr Glohe denied cannabis use when exhibit 2 was put to him. That however relies on an untested record. Mr Glohe was "unsure" and "cannot remember" (T188). It may have been a mistaken record or he may be naturally defensive about using a prohibited drug so recently.
21. Mr Ryan also argues (at MFI 19[73]) that Mr Glohe gave "evasive answers to his past criminal record". Such evasiveness was a component of a reason to reject his evidence, argued Mr Ryan. I do not agree. The passages of cross examination extracted by Mr Ryan at MFI 19[72] do not show evasiveness in my opinion and certainly not to an extent inconsistent with truthfulness. Mr Glohe acknowledges some convictions, cannot remember others and does not deny others. His answers are usually that he is unsure rather than being denials.
22. Detective Constable Beckett's evidence added little. Significantly there was no evidence of damage to Mr Simington's car consistent with Mr Glohe colliding with it or Mr Glohe hitting the rear passenger side of Mr Simington's car. It was, Mr Beckett acknowledged, a deductive process (T172, 25/11/15). But also Detective Constable Beckett did not put to Mr Simington Mr Formby's account of what had happened. Although he agreed that Mr Formby's account would amount to a criminal offence, he "took my decision and put the pedestrian to be at fault" (T173).
23. The significance of ambulance Officer Radford's evidence is in exhibit 3: "PT states was struck by the rear of a vehicle". Mr Radford was cross examined at T242. It is clear there is a combination of Mr Glohe giving an account and Mr Radford writing it out. I am not satisfied that it throws doubt on Mr Glohe's account. I do not know whether "by the rear of a vehicle" was Mr Radford's expression used to describe what Mr Glohe told him consistently with his case now.
24. Mr Ryan argues that Mr Simington gave his evidence in "an honest, open, and frank manner" (MFI 18.1[83]). I think that is a fair observation about the way Mr Simington gave his evidence. I was impressed by the effort made by him in the difficult task of testifying. He gave his account of what happened (at T269 - 270) and adopted the account he gave to police (exhibit 1). It was an account that had Mr Glohe moving towards his car and colliding with it at the rear. I agree with Mr Ryan (at MFI 19[86]) that Mr Simington's actions after the accident are not consistent with a person who had deliberately swerved into a pedestrian.
25. However there is a significant qualification about Mr Simington's evidence that reduces its cogency. His account for what happened before and at the time of the accident was untested. Because of a medical condition, he was unable to complete his evidence in Orange and was unavailable in Sydney. Mr Toomey SC had commenced cross examining Mr Simington but with one exception (T285, 27/11/15), he had not canvassed what happened before and at the accident. For example, there had been no explanation of "having a little bit of a fight with the car" (T175 1/6/16). This must be a significant handicap for the defendant's case. Its only eyewitness remains substantially untested: see Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348 at [21].

Findings

1. So in this case the plaintiff has two eyewitnesses. One is the plaintiff himself who was drunk, medicated and upset at the time. But the other was sober and sure about the essential aspect of the incident that the defendant drove in towards the plaintiff. The defendant on the other hand gives a different account but he has not had to withstand the test of cross examination. It carries less weight than if it had been so tested. The defendant has a plausible theory that the plaintiff ran into the defendant's car and kicked or hit it but it depends on the defendant's untested account to the police and in testimony.
2. I now return to the three bases on which Mr Toomey SC puts his client's case. I am not satisfied by him that Mr Simington deliberately drove his car into Mr Glohe. That would be a serious crime and I simply do not have the evidence to convince me, even on the balance of probabilities, of the intention that would have to be proved to make that finding.
3. However clearly Mr Simington drove his car towards Mr Glohe. I have accepted Mr Formby's and Mr Glohe's accounts and I make that finding based on those accounts, especially Mr Formby's. I am satisfied on balance that such driving by Mr Simington was a reaction to the "little bit of a fight" he admitted he was having with the occupants of Mr Glohe's car. He was stirred up and drove in such a way, I expect, to frighten or get back at Mr Glohe who, so far as he was concerned, was an occupant of the car he was fighting with.
4. It was a negligent, if not reckless, manoeuvre for him to make in the circumstances. So I am satisfied that the plaintiff has proved that it was an accident and was caused by the defendant's negligence. I am not satisfied that the plaintiff proved that the defendant intentionally drove in order to hit him.
5. Finally this is clearly not a blameless accident. Given my finding about Mr Simington's driving, there is not available to me a finding that this was an "accident not caused by the fault of the owner or driver of any motor vehicle involved at the accident in the use or operation of the vehicle" (s 7A Motor Accidents Compensation Act 1999).

Contributory negligence

1. I turn now to the question of contributory negligence. In my opinion there was no contributory negligence on the part of Mr Glohe. It may have been unwise of Mr Glohe in the first place to get out of his car to remonstrate with Mr Simington. But he was entitled to get out and signal for Mr Simington's attention. He was standing behind his car and a little out on the roadway I would accept 30 to 40 centimetres. That is an acceptable distance and within a safe distance from passing traffic (which would be at least one metre away from a parked car, I agree with Mr Urquhart). I accept Mr Toomey's argument (at T196, 1/6/16) that nothing Mr Glohe did brought about or caused his injuries. His injuries were caused solely by the extremely careless driving of Mr Simington. Mr Glohe was standing where a car would not have hit him. He was hit and injured not because of where he was standing but because Mr Simington's car drove into where he was otherwise safely standing.

Past economic loss

1. Mr Glohe's claim in MFI 16 is for $3,360 for past economic loss. It is based on the period from the date of the accident, 7 September 2013, until 30 June 2014. Mr Toomey SC develops his argument for the claim over T199 - 200 (1/6/16). I accept that Mr Glohe's earnings were $75 as the records suggest.
2. I accept the medical evidence that Mr Glohe's work capacity was limited. That is the opinion of the plaintiff's Dr O'Keefe and the defendant's Dr Harvey.
3. The question here is whether and to what extent that loss in capacity sounded in economic loss between 7 September 2013 and 30 June 2014.
4. The plaintiff's case is based mainly on inference drawn from pay slips that show an absence of pay slips for the whole 42 weeks.
5. Mr Ryan's submissions are at MFI 18.1[132 - 148] and at T22 (7/6/16). I accept, based on Mr Glohe's evidence over T224 - 225 (26/11/15), that it is more likely than not that he did some work between 7 September 2013 and 30 June 2014. He cannot remember but he agrees he was paid. Dr Balcomb noted on 19 June 2014 that Mr Glohe is "still doing a lot of physical work" (exhibit G, tab 23). I accept that Mr Glohe was unfit for his pre injury work for at least the 12 weeks that the defendant concedes. Mr Glohe has not proved on balance that he was unfit for the whole period. I think it likely that his limited work capacity produced some form of loss of income after the 12 weeks but not the whole of the 42 weeks. I would be prepared to allow another ten weeks at $75 a week, say $750. So the total past economic loss I would allow is the figure of $1,650.

Future economic loss

1. The plaintiff's claim is for a cushion in the sum of $50,000 (see MFI 16). Mr Toomey SC develops his argument over T204 - 207 (1/6/16).
2. Mr Ryan argues over [149 - 164] of MFI 18.1 that no allowance should be made.
3. I accept that Mr Glohe is a good worker and is valued by Bonny Glen. He has worked in the past and still does. They took him back after the accident. I accept that he is a fulltime carer for his wife. I accept that he would want to contribute to an asset for his children and would want to exchange his working capacity for remuneration for that purpose. Indeed he has increased his hours and remuneration at Bonny Glen since going back there.
4. Mr Toomey's argument, he acknowledges (at T204 - 206 1/6/16), depends on the contingency that his client's wife will die (a "very real prospect" of a premature death argues Mr Toomey). But Mr Toomey also acknowledges that that contingency is not supported by medical evidence.
5. In response to Mr Ryan's argument that a claim, even for a buffer, in such circumstances "would be merely speculative" (MFI 18.1 [161]), Mr Toomey falls back onto the judgment of the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. Mr Toomey referred to "Malec v Hutton principles" (T205 - 206). Mr Toomey argues that there is "a possibility that" his client's reduced earning capacity "will become productive of financial loss" (T205 1/6/16), acknowledging that "this is not a matter that can be approached with any precision" (T205). The relevant passage in Malec v Hutton is in the joint judgment of Deane, Gaudron, and McHugh JJ at 643 where their Honours said as follows: "Thus, the Court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded."
6. I accept that the plaintiff has an ongoing and permanent loss in earning capacity. I accept the plaintiff's own account and prefer Dr Harvey and Dr O'Keefe (even though Dr O'Keefe refers to Mr Glohe's earlier employment as a spray painter). Even the defendant's Dr Slezak said Mr Glohe was fit for eight to ten hours a week. That makes sense and is consistent with Mr Glohe's own account that he would be limited in the outside work he could do at the orchard, especially working on ladders.
7. I think the weakness in Mr Toomey's argument has to be the lack of evidence about Mr Glohe's wife's life expectancy. If I had such evidence then I would be able to assess the probability of Mr Glohe going back to longer hours in the workforce. For all I know she may live for another ten or 20 years (hopefully for the couple) and Mr Glohe will be well into his 70s. However, in accordance with Malec v Hutton I would be prepared to allow a percentage of 10% of the amount claimed by the plaintiff based on the possibility that his wife might die at a time in the future when Mr Glohe may wish to increase his hours. I would therefore be prepared to allow a cushion of no more than $5,000.

Past attendant care services

1. The plaintiff claims an amount of $13,780 (MFI 16). Mr Toomey SC bases his claim (at T201 1/6/16) on his client's verification of exhibit F. That was a report of an assessment of Mr Glohe's need for domestic assistance. Its author is Ms Pamela Molloy. It has become apparent to me that there is an error at [13.1.1] of that report. Ms Molloy refers to the period 10/9/13 - 11/11/13 correctly as "eight weeks care" but then uses the multiplier "20 weeks" in her calculations. Her figure and Mr Toomey's adjusted figure would have to accommodate that error.
2. Both Mr Toomey and Mr Ryan agree on the statutory requirement for a plaintiff to demonstrate that the attendant care services were provided "for at least six hours per week and for a period of at least six consecutive months" (s 141B(3) Motor Accidents Compensation Act).
3. Mr Ryan argues over MFI 18.1 [170 - 178] that "the plaintiff has failed to overcome" that statutory requirement. His argument is convincing. He points to Mr Glohe's own evidence that he got back to most of his domestic duties "within about three months of the accident" (T217, 26/11/15). In addition he points to histories given to doctors by Mr Glohe. Those histories were consistent with his evidence. Indeed Mr Glohe confirmed in evidence that he had told the truth to the doctors as best as he could (T215 - 216, 26/11/16).
4. All that Mr Toomey can point to is that his client confirmed the accuracy at Ms Molloy's report (T148 - 149 25/11/15). Indeed Ms Molloy's description of the period 12/11/13 - mid April 2014 (at [12.1.3] of her report) is consistent with other evidence of a reduced need after three or four months. That paragraph is also much shorter on the detail of the plaintiff's needs, as Mr Ryan points out.
5. I agree with Mr Ryan that Mr Glohe has not satisfied me that he has overcome the statutory threshold regarding this claim and I make no award for past attendant care services.

Future attendant care services

1. Mr Toomey SC again relies on the report of Ms Molloy. In addition he refers to the report of the defendant's qualified orthopaedic surgeon, Dr Harvey. Both assessed an ongoing need for an hour a week of domestic assistance.
2. Mr Ryan points to the evidence of Mr Glohe's resourcefulness and adaptability in doing household chores and maintenance as well as relying on Dr Sekel's report. He urges "extreme caution … in approaching this aspect of the plaintiff's claim" (MFI 18.1 [186]).
3. It is apparent from Mr Glohe's evidence that he can do "most" of his "domestic chores" but it takes him longer. The estimate of one hour a week is made by Ms Molloy who made a detailed assessment of Mr Glohe's ability and it coincides with Dr Harvey's estimate (although, as Mr Ryan says, without Dr Harvey taking into account Mr Glohe's adaptability).
4. Mr Toomey described his client's claim under this head as based on "a conservative approach" (T202 1/6/16) because it allowed for only another 16 years.
5. On balance, taking into account Dr Harvey and Ms Molloy, Mr Glohe has satisfied me of his claim and I would allow the amount of $26,454 which by my calculations is the correct product of the calculation set out at item 8 of MFI 16. So that figure is $26,454 for future attendant care services.

Future out-of-pocket expenses

1. The plaintiff claims $7,500 under this head of damages. Mr Toomey SC sets out the basis of the claim over T202 - 203 (1/6/16). It takes account of the possibility of day surgery, seeing his GP and physiotherapy and medication.
2. Mr Ryan points to Mr Glohe stopping the use of his exercise bike and the uncertainty of the likelihood of day surgery. He would allow $1,500 for medication.
3. The amount allowed under this head is at best an estimate. It is not helped by having little evidence of the actual cost of the outlays except the surgery. There is also little evidence about the likelihood of the surgery. Mr Glohe obviously sees his GP but for a variety of issues not just his injuries. He does take medication still. I think an allowance of $4,000 for this head of damages is reasonable.

Verdict

1. I enter a verdict for the plaintiff against the defendant in the sum of $37,104.

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