Isho v Skupien [2014] NSWDC 115 | Case summary

District Court of NSW|2014-05-12

Introduction 1This is a case about an accident at an intersection between a car and a bicycle. They collided with each other. The bike rider was injured, but fortunately not fatally or catastrophically. The driver acknowledges that he had some responsibility for the accident, but claims that it was mostly the fault of the bicycle rider. The bicycle rider says that the driver should be fully responsible for the accident. 2The bicycle rider is the plaintiff in the case and his name is Frank Isho. The car driver is the defendant in the case and his name is David Skupien. What I have to decide is whether Mr Isho should share any responsibility for the accident. I also have to decide whether to award Mr Isho any damages and, if so, what for and how much. 3Mr Richard Petrie of counsel appeared for Mr Isho and Mr William Fitzsimmons of counsel appeared for Mr Skupien. The case was conducted before me sitting in Sydney for some days commencing on 17 March 2014. I do not propose to recite the evidence except where it is relevant to my opinions and findings.

Liability 4Mr Isho gave an account of the accident to the police just over a week after it happened. He also gave evidence in court about the accident. There is conflict between those two accounts in significant areas. Where there is conflict I accept the account that he gave to the police rather than his account in court. The police account was closer to the event and, therefore, more likely to be an accurate recollection. Parts of it were also against his interests which adds to its credibility, in my opinion. The police statement account of the lights being red against Mr Isho is also consistent with Mr Skupien's evidence that the pedestrian lights were red (T142). It is also more likely that the pedestrian traffic lights were red because Mr Skupien's unchallenged evidence is that he had been waiting for more than a minute before deciding to attempt the turn. 5From Mr Isho's statement to the police, I conclude that he was concentrating on the traffic turning left into Justin Street from The Horsley Drive. There was a lot of traffic on The Horsley Drive, some of it indicating to turn left into Justin Street. When "the traffic was clear" and he "did not see any hazard" he thought he "could make it". I think it likely that Mr Isho's focus was on The Horsley Drive left-turning traffic rather than the Justin Street traffic on his right. After all, the Justin Street traffic was facing a red light. If he had looked right into Justin Street more thoroughly, he would have seen a hazard in the form of Mr Skupien's car indicating an intention to turn left. It is clear from Mr Isho's evidence in cross-examination (T120) that he did not see Mr Skupien's indicator and was reassured by the Justin Street traffic being stopped. 6On the other hand, Mr Skupien's focus was also on traffic travelling along The Horsley Drive but on the traffic going straight ahead rather than indicating a left turn into his street. As Mr Skupien acknowledged in his evidence in chief, he was looking for "a gap" (T141). 7Did Mr Isho stop? I think it is likely that he did and I so find. That is because there was a lot of traffic coming along The Horsley Drive, which both men acknowledge, and Mr Isho had to be sure as a cyclist that no car was going to turn left from The Horsley Drive into his line of travel. That makes it inherently likely that he would stop. The Horsley Drive was clearly a major road with heavy traffic and both men were being careful about a danger: in Mr Isho's case a left turning car and in Mr Skupien's case cars travelling straight ahead. But there were for each of them less obvious hazards. For Mr Isho there were cars in Justin Street which were entitled to turn left against the red light. For Mr Skupien, there was the possibility of a pedestrian or a cyclist crossing against the red pedestrian lights. Had Mr Isho paid more attention, he would have seen Mr Skupien's indicator and appreciated his intention to turn left against the red light. Mr Isho was, of course, also crossing against the red light thereby putting himself in danger. 8It seems to me that one obvious reason for the pedestrian lights being red at that intersection was to facilitate traffic from Justin Street being able to turn safely against a red light. On the other hand, accepting, as I do, that Mr Isho had stopped, Mr Skupien did not see him stopped and waiting. That was because, in my opinion, his main focus was on finding "the gap". As it happened, it was not safe to turn left. Extra caution was needed because the lights facing Mr Skupien were red. Pedestrians or cyclists or, indeed, scooter or skateboard riders may be crossing against the red pedestrian lights. The first Mr Skupien knew about Mr Isho was Mr Isho calling out and the collision with his car. As Mr Skupien said, the bike lodged on the front of his car on the numberplate and on the driver's side. So Mr Isho was able to get well forward in front of Mr Skupien's car before the collision. 9I have taken into account what the High Court said in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529, recently applied by the Court of Appeal at [73-74] in WB Jones Staircase & Handrail Pty Ltd v Richardson & Ors [2014] NSWCA 127. So far as culpability is concerned, whereas Mr Skupien did not look carefully enough for a possibly unlawful road user, Mr Isho did not look for a lawful road user. The need for Mr Isho to look was heightened by his own illegal behaviour. He put himself in danger by proceeding through a red light. Mr Fitzsimmons drew my attention to the Court of Appeal's decision in Turkmani v Visvalingam [2009] NSWCA 211, in particular at [55]. Using the language in that paragraph, there was, in Mr Skupien's case, a "falling short of the high standard of vigilance required of a driver in traffic approaching an intersection", but that falling short was, in my opinion, a little more than the "quite small" falling short in Turkmani's case. That was because Mr Skupien was proceeding through a red light, albeit legally. Mr Isho did go against a red pedestrian light, but because he had stopped first, his action would not be described, adapting the expression used in the Court of Appeal as "emerging at a...pace" from behind an obstacle. So far as "causal potency" is concerned, Mr Isho was where he should not have been. He probably assumed he was safe because the traffic lights facing Justin Street were red, but he was wrong in his assumption because of the sign permitting the left turn. On the other hand, it was Mr Skupien whose car hit Mr Isho. Although Mr Skupien just took his foot off the brake and eased the car forward he was, nevertheless, in charge of a car that even at that pace could do a lot of damage to a human being whom it hit. 10Mr Isho bears greater responsibility for the accident, but Mr Skupien should share more than the 25% Mr Fitzsimmons suggested. In my opinion, the appropriate apportionment of liability is to find Mr Isho's contributory negligence to be 65%.

Injuries and disabilities 11Obviously Dr Atto, who was Mr Isho's general practitioner, took his complaints seriously from the start. Dr Atto examined Mr Isho the day after the accident and on 23 December 2009, certified him unfit until 6 January 2010. In addition, Dr Atto referred Mr Isho to a specialist orthopaedic surgeon, a chiropractor, a psychologist and Dr Atto prescribed his patient pain killers. In a report dated 14 February 2012, which is part of exhibit A, Dr Atto expressed the opinion that Mr Isho "sustained lumbar and right leg injury and aggravated his depression from his accident." Mr Isho's treating general surgeon Dr Sanki, in a report of 30 March 2011, concluded that Mr Isho "has suffered a lumbar disc lesion with right lumber radiculopathy as a result of the above motor vehicle accident. He has developed post traumatic stress disorder, and he also has developed traumatic labyrinthitis." 12The lower back injury was supported by Dr Sanki's observations of "paravertebral spinal spasm on both sides" when he examined Mr Isho on 30 March 2011 and a CT scan of the lumbosacral spine which "showed evidence of mild disc bulges in the lower lumbar region." Dr Sanki's report of 28 January 2014 was based on an examination two weeks earlier where the doctor again noted paraspinal spasm in the cervical and lumber spines, and confirmed that the "aggravation that was caused by the accident has continued to progress, and the evidence is shown by his recent CT scans of the cervical spine and lumbar regions of the spine. I consider that the patient has symptoms and signs of lumber radiculopathy..." (Exhibit A, p 67). 13Those diagnoses in Dr Sanki's report were supported by the ongoing medical certificates of Dr Atto up to this year. Although Dr Sanki did not comment specifically on Mr Isho's work capacity in his latest report, he noted that he has not returned to work and I infer Dr Sanki's diagnoses support an opinion of some work restrictions. In a report dated 26 July 2012, a mental health clinician, Dr Yaser Mohammad, said that "Mr Isho's anxiety and depressed mood have worsened over the last two years and the main precipitant appears to be" the accident. Mr Isho had been seen for a gambling addiction by two psychiatrists some years before the accident. One of them, Dr St George, prescribed an antidepressant because Mr Isho was "depressed about the way his life is shaping up." I add that information because both Dr Atto and Dr Mohammad referred to pre existing anxiety and depression. I accept Mr Petrie's submission that "Dr Atto is in the best position to gauge the plaintiff's relative depression, having treated him for many years, both before and after the subject accident." 14Mr Fitzsimmons pointed to the report of Dr Wan. Dr Wan had noted inconsistencies between Mr Isho's behaviour and his complaints during his examination. Despite those inconsistencies, Dr Wan, in this report of 11 November 2012, assessed "that there is still mild restriction in movement of the lumbar spine." The doctor assessed that Mr Isho was suffering from a 5% whole person impairment as a result of the condition of his lumbar spine. He had noted that there is "still significant complaint of lower back pain" (p.32 of 34). Mr Isho may well be prone to exaggerate but his injuries and disabilities still exist, perhaps not to the extent he says or shows. Mr Fitzsimmons also relied upon a report from an orthopaedic surgeon, Dr Cummine, which became exhibit 4. I prefer the evidence of Dr Sanki, Dr Wan and Dr Atto - all of whom diagnose a back problem - to the evidence of Dr Cummine. I accept Mr Petrie's submission that there was no history of any back problems before the accident but since the accident "the plaintiff has a long and consistent history of complaints of continuing" low back pain. In addition Dr Atto and Dr Sanki were treating Mr Isho, for a long time in Dr Atto's case. I also accept Mr Petrie's submission that Dr Cummine's opinion "is also out of step with the one independent doctor in the case Dr Wan who found a permanent disability of the lumbar spine as a result of the accident." In addition, an orthopaedic surgeon qualified for an opinion by Mr Isho's employer's workers' compensation insurer, Dr Panjratan, diagnosed Mr Isho with a contusion of the back as a result of the accident. He thought that the pre existing degenerative changes in Mr Isho's back had been aggravated, admittedly adding that "the aggravation has since ceased." 15Mr Fitzsimmons relied heavily on the absence of complaints by Mr Isho when he was assessed by Justice Health in prison and by the Liverpool Hospital. But a careful review of the Justice Health records discloses that on 27 April 2010 there is noted "injured back work" and "work accident". In June there were further complaints: on 21 June there is noted "back injury from MVA" and "no acute problems at present" and "worries about his WorkCover payments". On 29 June there is discussion regarding his workers' compensation claim and on 30 June there is a note that Mr Isho was complaining of ongoing lower back pain. There is a clear history of depression as well. It is clear that Mr Isho referred to his back condition and its connection with the accident. I am not bothered by the fact that he was concerned about his need for a WorkCover certificate. That was quite a legitimate concern and related to his accident. Mr Fitzsimmons' submission needs to be seen in the context that Mr Isho obviously had other issues to deal with in prison which included his diabetes and his swelling neck (which turned out to be a more serious problem) and his depression. It also should be noted that the purpose of the assessment by a Justice Health nurse on 12 April 2009 was described as a risk assessment. 16It is true that there is no mention by Mr Isho of his back or any other accident related conditions when he was admitted to Liverpool Hospital. But he was being treated for a very serious condition in hospital and of the four conditions he mentions in exhibit 4 diabetes, cholesterol, depression and hernia are all matters that he was either taking daily medication for or had been admitted to hospital for previously. I do not accept the submission of Mr Fitzsimmons (at [35] of his written submissions, MFI 14) that Mr Isho's case suffers from "the absence of reporting by the plaintiff of any significant symptoms at times when the plaintiff would otherwise be expected to report his alleged significant and severe disability" because I would not expect Mr Isho to complain about his accident related conditions to a great extent in the circumstances relied upon by Mr Fitzsimmons. 17Mr Fitzsimmons' medical evidence in support of his client's case included Dr Panjratan, Dr Smith (a psychiatrist), Dr Cummine and another psychiatrist, Dr Apler. Mr Petrie's arguments about Mr Isho's medical conditions extend over some pages of his written submissions (MFI 13). Mr Petrie relies heavily on the fact that Mr Isho is supported by his treating doctors, especially with regard to his back, neck and aggravated depression. 18I have to reach a conclusion about Mr Isho's injuries and disabilities on the balance of probabilities. The support Mr Isho receives from his treating doctors carries some weight in that assessment. There is also support for his injured back from two of the specialists qualified on behalf of Mr Skupien, namely Dr Panjratan and Dr Wan. Although doubt is raised about Mr Isho's neck injuries by some of Mr Skupien's doctors, I prefer, on balance, the evidence of those doctors who have treated him and know him better as a patient. I also accept that there has been some aggravation of his pre existing depression. I have referred to evidence from the psychiatrists he saw before the accident. His treating GP not only picked up an aggravated depression but diagnosed it straightaway and has continued to support it. There is support also from a clinical psychological report. 19On balance I accord more weight to the evidence of those treating Mr Isho. His complaints have been steady, consistent and they have been accepted by the professionals who are treating him. I can understand the reservations of doctors qualified on behalf of Mr Skupien but I am required to make up my mind on the balance of probabilities and I accept Mr Petrie's submissions for the reasons that I have given. I accept not only the treating doctors' diagnoses but their opinions (express and implied) on Mr Isho's work capacity.

Damages 20Despite Mr Isho's training and qualifications, there is no objective evidence of his pre accident employment apart from his taxi driving and employment at Seripeco. Mr Isho worked for four years in hospitality in the early 1990s. This was consistent with his training and experience. But there is no documentary evidence of that employment or the income he derived from it. Similarly regarding his taxi driving, there is only one tax return from 2005, despite his 11 years' work in that industry. That tax return showed a loss. 21Mr Isho's gambling addiction and depression may explain his unemployment from 2006 to 2009. To his credit, Mr Isho undertook a gambling rehabilitation course and employment retraining in transport and logistics 22But despite his training, qualifications, taxi experience and rehabilitation, Mr Isho did not exploit his earning capacity. He was a financially unsuccessful taxi driver and an unsatisfactory delivery driver. There is very little evidence (indeed Seripeco only) of Mr Isho realising the full value of his earning capacity. 23I accept the submissions made by Mr Fitzsimmons over [37-38] of his written submissions. 24Mr Petrie argued in his written submissions that I should view cautiously exhibit 12, which was a statement by the managing director (Mr Colman) of Mr Isho's former employer Seripeco. Mr Colman described Mr Isho's "attitude to work as poor". On four occasions he did "not turn up for work without explanation or phone call". He disobeyed instructions about smoking in the vehicles. He was going to lose his job "on the Friday after the accident due to his frequent failures to attend work". I do not accept Mr Petrie's submission about Mr Colman's statement. None of it was put to Mr Colman. Exhibit 12 was admitted without cross examination. I am not prepared to make the findings suggested by Mr Petrie. 25Exhibits 12 and 13 provide insight into Mr Isho's behaviour. In my opinion, he has what may fairly be described as an "attitude problem". He does not turn up for interviews, he does not cooperate, he does not notify his employer of absences. I accept that he did not attend a work trial at a function centre. One or more of the following is true for each of the periods when Mr Isho was gainfully employed -

there is no objective evidence (hospitality and taxi driving);
the evidence demonstrates that his employment was financially unsuccessful (taxi driving);
the evidence demonstrates that he was an unsatisfactory employee (Seripeco and Cottage Fast Food). 26Dr Sanki provides an opinion in his 2011 report that Mr Isho was unfit for his preinjury employment. He does not specify in his 2014 report in the same terms but, as I have inferred, the doctor clearly finds that Mr Isho has limitations and disabilities. 27One issue I need to resolve is why Mr Isho stopped work at Cottage Fast Food. It was in my opinion probably the nature of the work. However, I am not convinced that Mr Isho used the opportunity fully. He was probably affected by his physical limitations and disabilities (certified by Dr Atto) but he did not persevere in the work. He does have a residual earning capacity. I agree with what Mr Petrie says about his employment at Cottage Fast Food in points (a) and (b). It is one thing starting off a new job on a work trial with your employment agent looking on; but it is another thing persevering in that job on a permanent basis with some disabilities. Mr Isho's case is not a black-and-white picture. It is not the case that he is either incapacitated or fully fit. He does have work restrictions. They have affected his ability to do all the tasks on an extended basis. But he does not persevere by, for example, negotiating with his employer for more satisfactory arrangements. He just walked away from the job. 28In my opinion, Mr Isho has lost some of his earning capacity because of the accident. The loss is to the extent certified by Dr Atto and described by Dr Sanki. But that reduction in earning capacity is unlikely to be productive of significant economic loss to him. Section 13(1) of the Civil Liability Act 2002 (NSW) prevents me from making an award of damages for future economic loss "unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based are in accordance with the claimant's most likely future circumstances but for the jury." My opinion about Mr Isho's future earning capacity is that it will be limited to the extent consistent with his treating doctors' opinions. 29The amount of future economic loss that Mr Petrie argues for is based on the assumption that his client will work steadily for the next 15 years. That assumption does not accord, in my opinion, with Mr Isho's most likely future circumstances but for the injury. That is because his "most likely future circumstances but for the injury" will accord, in my opinion, with his past track record in employment. He has not demonstrated that he is likely to realise anywhere near the full value of his earning capacity. 30This is not a case, in my opinion, to determine a plaintiff's future loss in earning capacity by the usual discount tables calculation. Given that his working future is 15 years and that he has shown very little evidence of gaining economic benefit from his earning capacity over the last 15 years I would regard an allowance of about a year's salary, using Mr Petrie's figure, as generous. I propose to allow a figure of $17,500 for future economic loss (which includes superannuation). 31The figure for Mr Isho's past out of pocket expenses has been agreed at $9,631. He has been receiving active treatment and I propose to allow that amount. 32Because I accept Mr Isho's doctors' opinions about his injuries and disabilities I regard his need for an allowance for future out of pocket expenses as reasonable. Dr Sanki says he has an ongoing need for treatment. I would allow the amount claimed of $12,330. 33Mr Petrie claims an amount for his client's past wage loss based on an assumption of full employment for most of the time apart from certain agreed exceptions. Again I do not regard the assumption as justified. Mr Fitzsimmons concedes a week's wage loss. Applying roughly the same likelihood of employment in the past as into the future (1 year in 15 for the future), I would allow $6,000 for the past (which includes a superannuation component). 34There is no claim for past gratuitous attendant care services. I think Mr Fitzsimmons' submission at [55] of his written submissions would be more relevant had there been such a claim. Mr Isho has called his current carer and his claim is for future, not past, domestic assistance. So there was no real reason to call the two witnesses which are the subject of Mr Fitzsimmons' submission. 35There is some medical support for a need by Mr Isho for ongoing attendant care services. There is the medical report of Dr Sanki of 30 March 2011 (which is at p.45 of exhibit A). The certificate dated 29 February 2012 mentions depression and the diabetes. I accept Mr Petrie's argument for the aggravation of Mr Isho's diabetes. The certificate of 1 February 2011 lists low back and leg and diabetes under the heading "Other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function." (Both of these certificates form the last pages of exhibit K.) The certificate dated 1 February 2011 is a medical report in support of a Disability Support Pension. The certificate dated 29 February 2012 is a medical report in support of a Carer Payment and/or Carer Allowance. Mr Isho, in cross examination, mentioned the "Centrelink medical assessment" as explaining his need for assistance. That is one reason why I have referred to both those certificates because both medical reports, which I have just mentioned, are issued through Centrelink. I take these references by Mr Isho to be to those two certificates which comprise the last few pages of exhibit K. 36At present, Centrelink provides a Carer Allowance to Mr Isho. Mr Petrie argues that that may not continue. Therefore, he says, an allowance needs to be made for his client's possible need to pay for such services on the open labour market if he is no longer going to be supported by the Carer's Allowance. 37Using those certificates as a guide, and Dr Sanki's report, it is clear that Mr Isho's need for attendant care services is derived from causes unrelated to his accident as well as causes related to the accident. In other words, the accident has generated some need for attendant care services, but it is very difficult to assess how much. I think in that case a buffer is appropriate. One contingency, of course, is that Centrelink may well keep up its attendant care services for the unrelated conditions. Mr Petrie, in his schedule of damages (which became MFI 12), argues that that buffer should be $50,000. I think that is too much. I would regard an appropriate buffer as being $25,000. 38I overlooked that the parties had agreed on a Fox v Wood allowance on past economic loss. That was drawn to my attention by Ms Watts. I make that allowance of $2,718. 39Accordingly, I find that the amount of damages in this case totals $73,179. But of course I have found that Mr Isho was contributorily negligent in the circumstances of the accident. In the words of s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), Mr Isho has suffered damage partly as a result of his own failure to take reasonable care and partly the result of the wrong of Mr Skupien. In accordance with s 9(1)(b) of that Act, the damages which would have been recoverable, namely $73,179, are to be reduced to the extent that I think just and equitable having regard to Mr Isho's share in the responsibility for the damage. I regard that extent as being 65% so that the damages recoverable should be reduced to $25,613. 40Accordingly, I enter a verdict and judgment for the plaintiff in the sum of $25,613.

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Isho v Skupien

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