PARKER v NOMINAL DEFENDANT

District Court of NSW|2007-03-06

CITATION: PARKER v NOMINAL DEFENDANT [2007] NSWDC 40

HEARING DATE(S): 5-6 March 2007 EX TEMPORE JUDGMENT DATE : 8 March 2007

DECISION: 1. Verdict and judgment for the plaintiff in the sum of $196,119.36. 2. Stood over for mention 9am 9 March 2007 to deal with issues of costs and any application for a stay.

CATCHWORDS: Nominal Defendant - Onus of proof - Drawing of inferences

LEGISLATION CITED: Road Transport (Vehicle Registration) Regulation 1998

Hunt v The Nominal Defendant NSWCA B9603057-28.6.96, Johnson v The Nominal Defendant [2003] NSWCA 153, CASES CITED: Motor Accidents Insurance Board v Padget Full Court of Supreme Court of Tasmania FCA 81/1996, Padget v Motor Accidents Insurance Board (1996) 23 MVR 411, Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, The Nominal Defendant v Genn (2004) 42 MVR 249,

PARTIES: Coralie PARKER The Nominal Defendant

COUNSEL: C A W Hart - Plaintiff P R Cummings - Defendant

SOLICITORS: Bale Boshev - Plaintiff Sparke Helmore - Defendant

1 In this matter Coralie Parker suffered three pelvic fractures when she was thrown from a motorcycle driven by Thomas Guy. Mr Guy is now Mrs Parker's husband.

2 The accident happened on 16 May 2004 as Mr Guy was slowing his motorcycle at traffic lights at the intersection of Belmore Road and High Street, Maitland.

3 The evidence indicated that the rear wheel of the motorcycle shimmied or fishtailed; that is, it moved from side to side when it came into contact with a patch of oil on a right turn arrow painted on the road surface. The wheel then recontacted the bitumen and abruptly stopped turning. As a result, both Mrs Parker and Mr Guy were thrown from the motorcycle.

4 The plaintiff initially commenced proceedings against Mr Guy and the Nominal Defendant. The proceedings against Mr Guy have been resolved. The cross-claims between Mr Guy and the Nominal Defendant have also been resolved. I therefore proceeded to hear only the plaintiff's claim against the Nominal Defendant.

5 On the issue of liability, the Nominal Defendant did not dispute that the loss of control of the motorcycle was the result of the presence of oil on Belmore Road. The issue on liability was whether the plaintiff had established that the presence of oil was the result of negligence on the part of the owner or driver of the unidentified motor vehicle.

6 Due inquiry and search were raised in the defence. This aspect of the claim was satisfactorily proved by the documentation which formed Exhibit T and was not further pursued by the Nominal Defendant.

7 In respect of the assessment of damages, there were issues concerning the extent to which the pelvic fractures were the cause of the plaintiff's current disabled condition and the extent to which pre-existing medical conditions contributed to those disabilities. The major issue was the allowance to be made for domestic care assistance, both past and future, for the plaintiff.

8 The plaintiff claimed in negligence that the owner of the unidentified motor vehicle was negligent in causing oil to be left on the road, in failing to maintain the motor vehicle so as to avoid leaks, and in failing to observe oil leaking from the vehicle.

9 Mr Guy said he had not seen any oil on approaching the traffic lights. After the accident he said he noticed oil as a shiny patch on the right turn arrow. He indicated that the size of the patch was about 35 centimetres wide and that it was oval in shape with a tail running down from the paint. He could not describe the colour of the oil other than to say that it was an off colour.

10 Exhibit R was the COPS report prepared by Senior Constable Antonio Morales. This document indicated that the accident occurred between 10.45 and 11am. Senior Constable Morales was called to attend at the accident but by the time he arrived at the scene the plaintiff had been taken to Maitland Hospital and Mr Guy had followed behind the ambulance on his motorcycle. Constable Morales spoke to Mr Guy at the hospital. At 11.30am he went back to Belmore Road where he recorded seeing a large amount of oil on Belmore Road. He concluded that the oil was the cause of the accident.

11 On 13 July 2004 Constable Morales prepared a diagram, part of Exhibit R, which showed an irregular shaped patch of oil. In his evidence to the Court Constable Morales stated that the patch of oil extended over a distance of 5 metres and covered the width of the right-hand traffic lane. He stated that it appeared to be in one large patch on Belmore Road. He noted also that oil appeared to have dribbled on into High Street.

12 Constable Morales notified the Fire Brigade, who attended to remove the hazard. An incident details report, Exhibit S, indicated that the Fire Brigade was called at 11.44am to deal with oil on the roadway. Their duties were apparently completed by 12.02pm. Under the heading Remarks in the report it was stated: Small amount of oil on roadway. Rendered safe with Spargsorb.

13 There were in evidence two reports of Mr Schnerring, traffic consultant, Exhibits N1 and N2. He reported upon the vulnerability of motorcycles having only two wheels when one of those wheels loses traction. He stated that once a motorcycle struck an oil deposit that required treatment with an absorbent material, it would very likely become out of control and fall over. Mr Schnerring stated that the source of the oil deposit was very likely a motor vehicle or truck. He said it was common for oil to be deposited in the centre of the traffic lane, particularly on approach to traffic lights where deposits can build up because motor vehicles are stationary for a period of time.

14 In the second report dated 1 September 2006 Mr Schnerring made reference to clauses 21 and 26 of the Road Transport (Vehicle Registration) Regulation 1998 Part 2 - General Safety Requirements Division 1 - All Vehicles.

15 Clause 21 contains a general requirement that motor vehicles be maintained in a condition such that they do not contravene the law or cause a danger or unreasonable annoyance to any person. Clause 26 specifically requires parts and fittings of motor vehicles to be such that: an undue amount of oil or grease will not be dropped onto the roadway.

16 Mr Schnerring expressed the opinion that the requirement to apply absorbent material indicated that an undue amount of oil had been dropped onto the surface of Belmore Road. Further, he said, while it was common for motor vehicles, particularly older models, to have minor leaks from various components, those leaks would not be observable if the motor vehicle concerned stopped at traffic lights for a short period of two minutes or less.

17 In this case, the oil deposit had been sufficient to cause slippery conditions and to require treatment with absorbent material. A leak such as this occurring while the vehicle was standing at the traffic lights for two minutes or less, in Mr Shnerring's opinion, would be observable.

18 The defendant argued that the plaintiff had not discharged the onus of providing evidence sufficient to allow an inference to be drawn that the driver or owner of the unidentified motor vehicle had been negligent. In this respect, the defendant relied on the material already referred to in Mr Schnerring's report, indicating that oil deposits commonly occur on roads and that they are not necessarily conspicuous to road users, including the owner or driver of the unidentified vehicle in question. I was also referred to the reference to a small patch in the Fire Brigade report.

19 I have also considered the authorities to which I was referred by the parties, including Padget v Motor Accidents Insurance Board, a decision of Wright J of the Supreme Court of Tasmania (1996) 23 MVR 411; Motor Accidents Insurance Board v Padget, a decision of the Full Court of the Supreme Court of Tasmania FCA 81/1996, judgment 84/1997; Hunt v The Nominal Defendant, a decision of the Court of Appeal of New South Wales U/R NSWCA B9603057 - 28.6.96; Schellenberg v Tunnel Holdings Pty Limited, a decision of the High Court (2000)200 CLR 121; Johnson v The Nominal Defendant, a decision of the New South Wales Court of Appeal (2003) NSWCA 153; The Nominal Defendant v Genn, a decision of the Court of Appeal of New South Wales (2004) 42 MVR 249. These authorities, naturally, deal with their individual facts while demonstrating the following principles: (1) The onus is on the plaintiff to establish negligence on the part of the owner or driver of the unidentified motor vehicle.

(2) The onus is on the plaintiff to establish the events causing the motor vehicle accident were of a kind that did not ordinarily occur without negligence.

(3) It is necessary to establish facts from which the most reasonable inference to be drawn is that the owner or driver of the unidentified vehicle was negligent.

20 In this case, the evidence established the following facts: (1) Mr Guy's motorcycle slid on an oily substance on the road. (2) There was evidence from various sources as to the quantity of oil on the road. By one hour after the accident, the quantity was described as small in the Fire Brigade report. No Fire Brigade officer was called to give evidence and I therefore have no means of knowing in comparative terms what the Fire Brigade regarded as a small oil spill. I do know as a fact that it was considered by Senior Constable Morales to be sufficient that it constituted a hazard which it was necessary to treat with absorbent material. (3) Thus, the spill was greater than might be expected of leaks commonly occurring from component parts of motor vehicles. (4) The position of the oil on the road where motor vehicles are called to a halt at traffic lights provided a strong inference that it leaked from a motor vehicle. (5) That the quantity was sufficient to form a pool of oil indicated that the substance leaked from a motor vehicle waiting for up to two minutes at traffic lights.

21 These facts, in my view, are sufficient to warrant a finding that the leak was out of the ordinary. They also are sufficient in my view to draw as the most reasonable inference the conclusion that a leak of this significance was the result of neglect in the maintenance of the motor vehicle or in taking steps to remedy an observable oil leak.

22 I therefore find for the plaintiff on the issue of liability.

23 There is no dispute that the plaintiff suffered serious pelvic fractures. She was also diagnosed as rendering symptomatic a previously asymptomatic spinal defect affecting the lower lumbar and sacral vertebrae. She was taken to Maitland Hospital and discharged after two days. She was required to undertake bed rest for six weeks. The plaintiff said that during this period she was in great pain and she was given substantial painkilling medication. She then gradually returned to weight bearing activity.

24 She complained of continuing and disabling discomfort in the nature of back pain and pain extending into her left leg. In addition, there are some areas of hyperaesthesia in her left buttock and the back of her left thigh, which indicate that there has been some nerve damage in this area. The result is that she continues to require considerable quantities of pain relieving medication.

25 The plaintiff stated that she was unable to undertake any housework for a period following the accident, and that she has been and remains unable to undertake the heavier aspects of her housework to the present date. It is in this area that the major dispute concerning damages arose.

26 The defendant cross-examined the plaintiff concerning the information contained in documents produced on subpoena by Centrelink. It was put to the plaintiff that these documents established that she was considerably disabled prior to the motor vehicle accident and that on this basis her need for assistance with domestic care was little greater than the need which existed prior to the accident.

27 The Centrelink material is contained in Exhibit 1. It comprises material lodged in support of the application for a disability support pension. The plaintiff's treating doctor at the time of the application, that is in March 2002, was Dr Keith Calladine. He described the plaintiff's medical conditions as: (1) overactive thyroid, (2) osteoarthritis needing knee replacement and a fracture of the right calcaneus, (3) osteoporosis, and (4) iron/B12 deficiency leading to anaemia.

28 Symptoms described in the application included legs retaining fluid; knee problems; inability to walk, stand or sit for long periods; lack of strength due to illness; knees giving way; forgetfulness; difficulty in getting to sleep; asthma; and inability to lift.

29 The plaintiff was assessed for Centrelink by Dr Arad. The plaintiff said that Dr Arad did not examine her; he merely spoke to her for a short period. Of the conditions noted by Dr Calladine, Dr Arad diagnosed: (1) Pain in knees and ankles. He made reference to the plaintiff having seen an orthopaedic surgeon who indicated that she would need knee replacements in the future. (2) A combination of hyperthyroidism, anaemia and electrolyte imbalance.

30 Dr Arad said nothing in relation to conditions of osteoarthritis or osteoporosis. He found the plaintiff to be unfit for any type of fulltime employment for two years.

31 The plaintiff stated that her difficulties with her knees and ankles and, therefore, her mobility at the time of the application for the pension were the result of swelling and fluid retention by reason of the hyperthyroidism. The plaintiff acknowledged that she had injured both knees in a motor vehicle accident in 1978, as a result of which she had consulted an orthopaedic surgeon Dr Cross. She said that Dr Cross indicated that she may need a total replacement of the left knee. However, the plaintiff said at the time of the motor vehicle accident she had been suffering no difficulties as regards the left knee and she was not considering any treatment by way of a knee replacement.

32 The plaintiff also agreed that she had suffered a stress fracture of her right foot. She said that by the time of the motor vehicle accident in May 2005 this fracture had resolved without further pain or disability. In this respect, I have noted a reference by Dr Calladine on a report of an MRI scan on the right foot in April 2002 that the plaintiff's pain was now minimal.

33 Further, in December 2002 the plaintiff's thyroid was removed. She has since then relied on medication to compensate for its loss but stated that the problems of fluid retention and swelling in her legs and ankles had been resolved and, with it, her problems of mobility.

34 The plaintiff claimed to be unaware of any suggestion of osteoporosis or osteoarthritis.

35 The defendant stated that on the basis of the material contained in the application for the disability pension I should regard the plaintiff as lacking in credit. There were two bases for this submission. Firstly, that the material in the application overstated her medical conditions or, alternatively, that when she had recovered from those medical conditions she had not relinquished the disability pension. The plaintiff's response was that she had not been asked by Centrelink to submit for review of her medical condition.

36 I have decided that I should accept the plaintiff's evidence on these aspects of her claim, notwithstanding the anomalies disclosed by the Centrelink documents. I do so for the following reasons: (1) Her evidence that she performed all household duties for herself and Mr Guy prior to the accident was entirely supported by Mr Guy. Mr Guy was not challenged on this evidence in cross-examination. (2) Her evidence of her limits on her capacity after the accident was entirely supported by Mr Guy. Mr Guy was not challenged on this evidence in cross-examination. The plaintiff agreed that she continued to undertake lighter aspects of her housework, leaving the heavier work to the inexpert attention of Mr Guy. She said that she no longer undertook gardening, except for light pruning. Some jobs such as cleaning the windows of the house, she said, are no longer done. Mr Guy pushes the supermarket trolley, which she can no longer do. He was not challenged on this aspect of his evidence in cross-examination. (3) There was no medical evidence put forward by the defendant to support its assertion that the plaintiff was disabled by the earlier knee injuries. Exhibit 2 was a letter dated March 2002 from Dr Slater to Dr Calladine in which it was stated that the plaintiff was considering bilateral knee replacements by Dr Cross. The plaintiff said that she had not consulted Dr Cross for many years by 2002 and that she had simply reported to Dr Slater that Dr Cross had indicated that a knee replacement was likely to be necessary, particularly for the left knee. No evidence was called from Dr Cross. (4) As to osteoarthritis, there was no evidence that the plaintiff suffered from this condition. Dr Ghabrial's suggestion of possible osteoarthritis as a result of the pelvic fractures was discounted as minimal by all other medical experts. (5) In respect of osteoporosis, there was similarly no medical evidence to support the handwritten note of Dr Calladine. The right foot pain was diagnosed as a stress fracture and, as noted, by April 2002 Dr Calladine described the foot pain as minimal. There is a bone density scan dated 12 July 2004, Exhibit B, which indicated that the levels of the plaintiff's bone density were only mildly below those normally found in young adults. It also noted a minimal reduction in bone density since the previous scan in 2002.

37 There is, therefore, corroborated evidence of the plaintiff concerning her pre and post motor vehicle accident capacity for household duties. Further, there was no objective evidence to support the proposition that the plaintiff was disabled prior to the accident by the condition of her knees or by osteoarthritis or osteoporosis.

38 I find, therefore, that at the time of the accident the plaintiff was capable of undertaking a full range of household duties. I find that following the accident the plaintiff has not been capable of undertaking the full range of household duties.

39 In assessing the claim for domestic assistance, I have noted that the evidence does not support a claim that the plaintiff required assistance for the threshold period of six hours and six months on a voluntary basis and, therefore, no allowance has been made for past assistance provided by Mr Guy.

40 As to her current capacity and needs, the defendant argued that the assessments of Ms Walker, an occupational therapist relied upon by the plaintiff, or Ms McMaster, an occupational therapist relied upon by the defendant, were unduly generous. Ms Walker indicated that eight hours a week of assistance was required, together with a home delivery service for the plaintiff's groceries. Ms McMaster estimated the requirement at three hours a week. I have noted that Dr Millons, a doctor attended upon by the plaintiff on behalf of the defendant, also arrived at the assessment of three hours a week. Dr Ostinga, relied upon by the defendant, assessed the need at one hour per week.

41 In its schedule of damages, the defendant proposed an allowance of one and a half hours per week at $30 per hour. The plaintiff in her schedule proposed an amount of six hours a week at $30 an hour with a 30 per cent deduction for vicissitudes.

42 In my view, it would be fair to allow three hours a week for assistance with heavy housework, gardening, laundry, and occasional tasks of house maintenance and window cleaning, and to cover the cost of delivery of groceries. That amount is assessed, therefore, at $70,200.

43 The plaintiff claimed for medication and two reviews per annum by her general practitioner on the basis that her other regular consultations with her general practitioner were necessary in relation to the thyroid condition. In my view, that allowance is reasonable.

44 Orthopaedic review once per annum was also claimed but this has not been shown to be necessary, the preponderance of opinion being that further treatment in respect of the pelvic fractures is unlikely to be required.

45 On the basis that the painkilling medication Endone will cost $4.90 per prescription, I have assessed the allowance for medication at $13,665.60. Included in this allowance is any sum required for a course of pain management which would necessarily reduce the requirement for medication.

46 The equipment requirements assessed by Ms Walker are considered to be reasonable, having regard to the plaintiff's condition, and they have been allowed, as claimed, in the sum of $10,406.76.

47 There is no evidence to support the requirement for cognitive behavioural therapy and it has not been allowed.

48 Although physiotherapy has been minimal to date, I consider that as the plaintiff ages physiotherapy may on occasions be required, and it is therefore allowed in the sum claimed of $650.

49 As to non economic loss, the plaintiff at the time of this accident was fifty-five years old. She is now fifty eight. She was suffering from a significant medical condition affecting her thyroid, to the point where it was necessary that it be removed and that she rely upon supplementary medication. Against this, her injuries involved considerable pain and a lengthy period of recovery with continuing permanent ongoing pain and discomfort. On this basis, I have assessed her non economic loss at $100,000.

50 Past out-of-pocket expenses are allowed in the agreed sum of $1,197.

51 The result is that there will be verdict and judgment for the plaintiff in the sum of $196,119.36.

52 I will stand the matter over to nine o'clock tomorrow morning to deal with issues of costs and any application for a stay.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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