Helsham v Rye and Cook and FAI General Insurance Company Limited [2000] QSC 277

[3] The first and second defendants gave mutually exclusive versions of the accident.

[4] The first defendant, Mr Rye, said that on 26 April 1994 he had visited his son's residence at 995 Peak Downs Highway during the morning to help pump out the swimming pool. The accident occurred as he was leaving the property. He said he had come out of the side drive of the house, turned to face the road and stopped to wait for a break in the traffic. He was just sitting in the Kombi van beside the road when "all of a sudden this motor bike came from out of the blue right into the middle of the van". Mr Rye did not notice any unusual behaviour from any vehicle prior to the accident.

[5] During cross examination by Mr Ambrose Mr Rye expanded on the brief evidence given in chief. The expanded version was as follows: Mr Rye had parked his Kombi van nose into the unsealed driveway visible in exhibit 2 (the driveway that runs up to the brown fence). On backing out his Kombi van became bogged in soft ground. This seems to be the boggy looking patch in the shallow table drain just behind the Kombi van in exhibit 3 and near the telegraph pole in exhibit 1. Mr Rye's two sons attempted to push him free without success. Mr Rye then said that his vehicle was pulled forwards by his son's utility to get free of the wet area and so he could turn and face the road. I find Mr Rye is in error in this. I find that he was in fact pulled backwards and parallel to the roadway as described in his son's evidence and shown by the direction of the tyre tracks in exhibit 1.

[6] Mr Rye then says he was facing towards Mackay in the position the Kombi van appears in the photographs. He said that he was stationary in that position for upc to 10 minutes waiting for a break in the traffic to cross onto the eastbound lane and proceed towards Mackay. A stream of traffic apparently passed without concern while he sat there.

[7] For several reasons Mr Rye's version of events cannot be regarded as reliable. While I do not for a moment believe that Mr Rye was doing other than his best to recall the accident I do not think his recollection was accurate.

[8] Mr Rye was 83 years old at trial. He was recalling events of more than six years ago. He admitted to panicking at the point of impact. His version at trial bore no similarity to that he gave Sergeant Graham at the scene and which is set out in the traffic accident report (exhibit 46). The original version was as follows:

"He was about to leave the private property he was at and travel back to Mackay. He then reversed back around across a drain which was water logged. He stated that he then had to use a bit of speed to get back across the drain. He did this and had to then brake heavily after crossing the drain to avoid driving onto the carriageway of the Peak Downs Highway. He stated that he stopped with the front of his vehicle on an angle to the road facing the traffic coming towards him from Mackay. He stated that he saw a 4WD slow down and then he saw a motor cycle being ridden up the left side of the 4WD and collide with the front of his vehicle".

[9] Subject to what I will say later about the position of the Kombi van relative to the roadway this version seems to me to be much more likely and consistent with the other evidence.

[10] I find it difficult to believe Mr Rye could not have crossed the Peak Downs Highway with at most a delay of a few seconds. While I cannot determine how long after the accident the photographs (exhibits 1-4 and 42-43) were taken they were plainly taken on the same afternoon as the accident and before Sergeant Graham who is shown in exhibit 1 left the scene. The photographs do not suggest traffic of the density described by Mr Rye. Mr Rye's evidence was at odds with Ms Boden's who described the Kombi as moving forward and stopping only momentarily before impact. I accept Ms Boden on this point.

[11] Mr Rye's evidence of having to wait a long period to cross the road is also inconsistent with his son's experience. He apparently had no difficulty crossing the highway and waiting on the other side for Mr Rye to clear the driveway.

[12] I accept Mr Cook's evidence in its entirety. He was consistent with the statement given to the police within a few days of the incident (exhibit 41) and with the statement provided to the plaintiff's solicitors and put to him by Mr Morgan. He appeared to me to be carefully considering questions put to him, distinguishing between fact and speculation and responding truthfully.

[13] Mr Cook said that as he approached Walkerston from Mackay in his Nissan Patrol he observed the motor bike ridden by the plaintiff a safe distance behind in his rear view mirror. He had a clear view of the first defendant's Kombi van. His view was not obstructed by traffic in front of him. It was drizzling. He had been travelling at 90 to 100 kph and reduced that to about 70 kph because of the drizzle and conditions. Mr Cook noticed a mustard coloured Kombi van coming out of a low spot on the side of the roadway surging forward angled towards Mr Cook and slightly across the road. This action confused Mr Cook who started to brake. At that time Mr Cook was only some 50 metres from the Kombi. The Kombi was continuing to move onto the roadway into the path of Mr Cook's vehicle. Mr Cook could not swerve around it because of oncoming traffic and braked heavily coming to a stop "headlight to headlight" with the Kombi. The Kombi was now stationary the best part of 1 metre onto the bitumen and over the white line at the side of the road.

[14] Mr Cook saw the flash of the motor bike pass him on his left and collide with the Kombi van pushing it backwards. Mr Rye had given evidence that the Kombi van was in neutral with his foot off the brake (T164.45-.60). I should add that no witness has suggested the plaintiff was exceeding the speed limit of 100 kph. I am not satisfied the speed shown in exhibit 45 has any necessary connection with any speed the plaintiff was travelling at anytime.

[15] Mr Cook's evidence that the Kombi van was well onto the roadway is consistent with the debris shown in exhibits 2 and 43 which appears to be glass from the Kombi van's windscreen. It is also consistent with where the Kombi van might have been if struck hard in neutral and pushed backwards to the position shown in the photographs.

[16] I regard Mr Rye's control of the Kombi van as grossly negligent. He drove onto the highway in the face of oncoming traffic causing Mr Cook to execute an emergency stop and narrowly avoiding a collision with his vehicle. In contrast I do not think Mr Cook has in any respect deviated from the standard one would expect of a careful driver. I do not find his conduct to have been negligent in any respect.

[17] Having found the first defendant to have been negligent it remains to consider whether and to what extent the plaintiff had also contributed to the accident.

[18] In short the version of events I accept is as follows: The plaintiff was following the Nissan Patrol, travelling within the speed limit. The Patrol started to brake. While Mr Cook could see the Kombi van throughout and he, driving carefully narrowly avoided a collision (T206.5-.12), it is likely the plaintiff's view of the Kombi van was obscured by the Nissan Patrol. Mr Rye could not see the motor bike until it veered left to overtake the Patrol (T165.55-.60). It logically follows that the plaintiff could not see the Kombi van before that time. While the plaintiff should have been travelling in such a way as to be able to stop when Mr Cook did it is not surprising to me that Mr Cook driving slowly and with warning of the danger could only just stop and the plaintiff travelling closer to the speed limit and with no warning could not.

[19] This case cannot properly be compared with cases such as Rains v Frost Enterprises Pty Ltd [1975] Qd R 287 ; Braund v Henning [1988] HCA 36; (1986) 62 ALJR 433 or Segal v Hanner (1988) 7 MVR 56 where the court is called upon to apportion blame where a following driver collides with the vehicle in front. Here there was no such collision. The plaintiff collided with a vehicle which was in an extraordinarily dangerous and unexpected position facing the wrong way partly on and partly off a reasonably busy highway having just moved there when its presence was obscured from the plaintiff by the Nissan Patrol. The plaintiff had three options when Mr cook's vehicle braked. He could also execute an emergency stop. He could veer left or he could veer right. To brake heavily on a wet road on a motor bike would have been dangerous. While the plaintiff was travelling at a lawful speed it may have been too fast for the conditions then prevailing. To veer right into the face of the oncoming traffic Mr Cook described would have been suicidal. To veer left along the edge of the bitumen and overtake the Nissan Patrol while having some dangers would ordinarily have been the safest option. That it was not was in my view the fault of Mr Rye. One should bear in mind that the road shown in the photographs had good shoulders. The bike was a trail bike and the plaintiff had a little earlier that day ridden eastwards on the same stretch of road when there had been nothing to alert the plaintiff to a potential hazard.

[20] Ms Boden says that the motor bike came off the bitumen edge of the roadway onto the gravel to strike the Kombi van. Mr Rye on the other hand said the motor bike was on the bitumen. Ms Boden was observing from some distance away in the residence at 997 Peak Downs Highway. I think it is most likely that the motor bike was to the left of the white line on the edge of the bitumen. This is most consistent with striking the Kombi van centrally having regard to my finding in relation to where the Kombi van was at the point of impact. The further significance of this is that there would have been room for the bike to pass between the Nissan Patrol and the Kombi van if the Kombi had been stopped off the bitumen as it should have been.

[21] In comparing the relative culpability of the driver of the Kombi van and the bike rider one is immediately struck by the difference between a case like Braund v Henning (supra) or March v E. & M.H. Stramare Pty Ltd [1991] HCA 12; (1990-1991) 171 CLR 506 where the fault of the defendant was slight but still attracted liability for a substantial percentage and this case where the departure of the plaintiff from acceptable driving standards is slight and the first defendant's is gross.

[22] In relative terms the negligence of the plaintiff travelling a little too fast to be able to stop behind the Nissan Patrol in the conditions or perhaps not responding sufficiently quickly to a confusion created by the first defendant is insignificant when compared to the grossly negligent conduct of the first defendant. In the circumstances I assess the plaintiff's level of contributory negligence at 10%.

[23] As a consequence of the accident the plaintiff was admitted to Mackay Base Hospital with a severe head injury which a CT scan revealed to be a haematoma of the right basal ganglion and left fronted cortex. Other injuries were:

[24] The plaintiff was ventilated in intensive care at Mackay Base Hospital until complications of pneumonia and sepsis dictated his transfer to Royal Brisbane Hospital.

[25] The plaintiff was born on 16 July 1966 and was thus 27 years of age when injured and 33 years of age at trial.

[26] The physiotherapist, Penny Baldwin, described the practical effect of these injuries in May 1995 as follows (exhibit 17):

"Because of the limited use of his upper arm many daily activities are affected to a degree.

Because of his injuries his only modes of transport are walking and riding the push bike.

Wayne is keen to go back to work but I don't know how realistic that idea is. He could have difficulty walking over rough terrain and the limited use of his arm would restrict his ability to pick up and carry heavy objects".

[27] The plaintiff himself is less pessimistic about his prognosis and abilities but it seems to be universally accepted by the medical evidence that he lacks insight into the extent of his disability. Ms Baldwin's gloomy assessment is consistent with the bulk of the medical evidence.

[28] Orthopaedically, Dr White assessed the plaintiff as having a 10% loss of function of the whole right upper limb and a 5% whole body disability relating to the crush fracture at T1. This assessment ignored the left side hemiparesis. Dr Morgan, also an orthopaedic surgeon, assessed the plaintiff as having a 30% loss of whole body function relating to the head injury and left sided spastic hemiparesis with a further 10% of upper left limb function resulting from left sided rotator cuff tendinitis syndrome in the shoulder. The overall effect is of a total loss of body function of the order of 40%.

[29] On balance I accept that the plaintiff has suffered significant loss of concentration and cognitive processing including memory. In this respect I rely on the evidence of Mr Salzman, the clinical neuropsychologist.

[30] The evidence here is complicated by the plaintiff's moderately heavy use of marijuana and alcohol from his late teens. The evidence, particularly from the plaintiff's father was that his son was a relatively late maturer. Heavy marijuana and alcohol use is not uncommon among late adolescents and young adults with such behaviour moderating with maturity (Mulholland T80.25-.40). There was evidence of the plaintiff beginning to settle and mature (AC Helsham T91). This progress was arrested by the head injury.

[31] The plaintiff at some stage engaged in intravenous use of amphetamines. A question arose as to whether this pre- or post-dated the accident. The suggestion that it pre-dated the accident arose from information supplied by the plaintiff to Dr Alcorn (exhibit 33). This differed from evidence given by the plaintiff in the witness box that he only commenced amphetamine use about 12 months after the accident as a result of peer pressure and that such use ceased some time ago. As to the last point there is nothing to suggest it is not true and it is consistent with his being amphetamine free when tested by Dr Mulholland. As to the time of commencement I was impressed by the way the plaintiff gave evidence and his frankness even in relation to matters which might reasonably be thought to diminish a damages claim. I accept that the amphetamines use was post accident only and has ceased.

[32] A case was mounted that the plaintiff's use of drugs and alcohol prior to the accident was such that irrespective of the accident the plaintiff would have been sufficiently impaired to render him incapable of proper management of his affairs. I don't accept this proposition. I prefer the evidence of Mr Salzman at T115.40-.50 that the use was of insufficient duration to be likely to have caused damage and of Dr Mulholland at T76.5-.19.

[33] At T108-111 Dr Alcorn was questioned on this topic. The issue arose as a result of Dr Alcorn's report of 4 April 2000 (exhibit 28). There seemed to be some lack of coincidence between Mr Ambrose's questions and Dr Alcorn's responses for most of the questioning. The issue was precisely addressed finally at T111.8-.21. By that response I understand Dr Alcorn to be saying that prior to the accident there was no medical reason why the plaintiff could not manage his own affairs but that he should not be entrusted with a large sum of money because he would be likely to use it on drugs (see eg. T108.40-.48; T109.1-.23). There is no doubt the plaintiff was an amphetamine user when the plaintiff saw him. The real issue is whether he was an amphetamine user before the accident and whether he has ceased. As indicated I find for the plaintiff on both these issues. Apart from my acceptance of the plaintiff's oral evidence, other reasons to doubt the accuracy of the information recounted by the plaintiff to Dr Alcorn include the general unreliability of his history to Dr Alcorn regarding employment, dates and alcohol and marijuana consumption (see T104-105). I also note he gave a history to Dr Mulholland at odds with that given to Dr Alcorn and Dr Mulholland recorded the difficulty in extracting a history (exhibit 32, para 20.4). I accept Dr Mulholland's view that the amphetamine use was probably accident related (exhibit 32, para 22.16).

[34] Under the head of pain and suffering and loss of amenities of life I award the plaintiff $100,000.00. He was suffered a significant head injury and major physical disabilities of the order of 40% of the whole body. These disabilities are significantly more severe than those in either of the cases to which I was referred by the first defendant's counsel: Mann v Westbrook (Thomas J - W3379/88-24 July 1992) and Harrison v Boggs (Cullinane J - 109 of 1992 - 26 July 1996) and significantly more severe than in Surjan v Denton (Ambrose, J-8666 of 1996-11 December 1997) to which I was referred by the plaintiff's counsel. While the plaintiff is not in any particular pain he is frustrated and depressed by his inability to work and he is aware that his unattractive appearance caused by the accident makes forming relationships difficult. I award interest on $25,000 of the sum for 6.25 years at 2% totalling $3,125.00.

[35] Special damages comprise $33,436.09 hospital expenses, $5,479.54 repayable to Commonwealth Rehabilitation Services and $491.00 of agreed additional expenses. The latter sum should bear interest at 5%.

[36] At the time of the accident the plaintiff was employed by VAE Railway Systems Pty Ltd as a labourer. He had been in that employ since 1 July 1993. His work history prior to that while not continuous was not unusually bad for someone his age (see T78.29-.32). There was evidence from the plaintiff's father that the plaintiff was looking towards advancement (T126.25-.38) and from Mr Etwell, a former employer, that he was a good worker (T84.30-.48). Had the plaintiff stayed with VAE he would have earned $122,672.00 to trial. Obviously there were contingencies but equally obviously there was the prospect of advancement. On balance I propose to discount the sum by 5% and allow $116,538.40 together with interest on $60,268.19 at 5% for 6.25 years making $18,833.81.

[37] The plaintiff's pre-accident occupation would presently earn him $423.25 net per week. To age 65 this would total $352,905.85. To this a discount must be applied. In determining the rate of discount I take account of the plaintiff's age, education, pre-accident history and history of drug and alcohol usage and its apparent lack of effect on his prior work history.

[38] The view I formed of the plaintiff's pre-accident work pattern was of a somewhat immature but settling person and one who was not shy of work or lazy. In all probability I am satisfied he would have had at least an average working pattern and some scope for advancement. On the whole I consider a 15% discount appropriate and I award $299,969.97.

[39] I need to make an allowance for lost superannuation. It has been common practice to allow 6% of net lost earnings: see Hedge v Trenerry (CA(Qld), App 4911 of 1996, 7 November 1997) at p11; Hyne v Tomlinson (CA(Qld), App 8283 of 1997, 22 May 1998) at p9; Delaney v Shepherd [2000] QCA 107 at para 2. Mr Morgan for the plaintiff submits I should award 9%. The practice of awarding 6% arose when the mandatory statutory rate was 6%. It is now 8% and will soon go up to 9%. What the plaintiff has lost therefore is the opportunity to receive superannuation contributions of 9% for most of his notional future working life. This alone seems to me to be a sufficient basis to increase the rate awarded. Against this it was submitted that 6% was appropriate having regard to the fact that it is received now and not over a period as would otherwise be the case. In my opinion this submission is logically flawed. Although the award for lost superannuation is received now it is already discounted by use of the 5 % tables to reflect that fact because it is based on the discounted present value of future earnings. Further, because future earnings is based on a net and not a gross loss of earning capacity it is further reduced by not being paid on gross income. I do not consider any of the authorities to which I have been referred dictate the rate I should apply. They simply acknowledge the reality that for the same reason I now consider 8% or 9% to be appropriate, namely that that is in fact the rate, 6% has hitherto been ordinarily applied. I therefore award lost superannuation at 9% of $299,969.97 or a total of $26,997.30. By parity of reasoning 6% is appropriate for the past.

[40] There is some evidence that the plaintiff requires care both past and future but it is inconclusive as to amount. The evidence suggests the plaintiff can perform all but a few of the ordinary tasks of daily life. He cannot, for example, change light bulbs because he cannot safely climb down a ladder or off a chair. He cannot change mower blades or sometimes start the mower because of his inability to use his left arm. He does things slowly and with necessary adaptations. The first defendant suggests a global allowance based on 1 hour a week for the future at $19.80 per hour. I agree. Statistically the plaintiff is likely to live another 46.7 years. The multiplier is thus 958.8. This results in an award of $18,984.24 which I award. Since the plaintiff's condition is stable and the statistical life expectancy takes into account viscisitudes of life and because the figure is a global one anyway it is not in my view necessary to discount it further. For the past I award a global sum of $7,000.00. The plaintiff's past need for care was higher (see exhibit 12 para 16).

[41] In the result my assessment of damages is as follows:

[42] I consider a protection order should be made pursuant to s67 of the Public Trustee Act 1978. The plaintiff himself supports the making of such an order as do his legal representatives and the psychiatrists who gave evidence. The plaintiff's disabilities arising from the head injuries render him unable to properly manage a substantial capital sum. After deducting the refunds of $94,185.84 (which includes $56,270.21 disability pension) the capital sum remaining is $479,115.23. The Public Trustee's charges for administering such a fund is 3.85% of the first $100,000.00 and 2.75% of the next $400,000.00. In this case the charge is $14,275.67. This sum is also properly claimable. The plaintiff should recover 90% of this sum after apportionment ie. $12,848.10. The charge on income is simply part of the cost of caring the income and it is impracticable in any case to assess it.

[43] I therefore give judgment for the plaintiff against the first defendant for the sum of $586,149.17 and judgment for the second defendant against the plaintiff. I order the first defendant to pay the plaintiff's costs of and incidental to the action to be assessed on the standard basis.

[44] The joinder of the second defendant to the proceedings was entirely appropriate having regard to the version of events given by the first defendant. In the circumstances I order the first defendant to pay the second defendant costs of and incidental to this matter to be assessed on the standard basis.

[43] I direct that the amount of the judgment in favour of the plaintiff after deduction of all statutory refunds and the difference between the costs payable by the plaintiff to his own solicitors in connection with the action as an indemnity basis as between a solicitor and his own client and the costs payable by the first defendant to the plaintiff be paid to the Public Trustee pursuant to s65 of the Public Trustee At 1978.