Trenerry, Hedge & Suncorp [1996] QSC 77 (14 May 1996)

Trenerry, Hedge & Suncorp [1996] QSC 77 (14 May 1996) - QSC 1996 case summary — Zoe

[147]

The next matter which in my view cast doubt on the worth of Mr Williams' submission that the brake pedal abraded the plaintiff's buttocks and fractured her sacrum is the evidence of Dr Brian Swan Purssey a surgeon for many years and who has I am satisfied appeared for over 20 years in courts in Queensland and written reports on cases involving seat belts in motor-vehicle accidents and alcohol in such accidents. Dr Purssey in the course of his oral evidence while being cross-examined by Mr Williams was (p.298) referred to notations made in the Princess Alexandra Hospital records for the plaintiff which referred to "... lacerations to the right thigh, right leg, abrasions over right and left buttock with the notation "friction and burn" above it." Mr Williams referred Dr Purssey also to a notation that at 4 am on 26 October 1982 another doctor at the Princess Alexandra Hospital had written "marked grazes and friction burns to right buttock and right thigh, posterior burns? full thickness. Laceration outer aspect of lower left calf grazes right elbow bruising dorsum right- hand". Mr Williams asked Dr Purssey (p. 312) - "Such injuries, such friction burns, if you like to call them that or lacerations could occur if a person was ejected from the vehicle and landed on the buttocks on a gravel road?" and he answered "Well yes I was asked to look at these records and read them and work out how these injuries occurred and that's what I have done. I have looked at them. I've read them. I know what causes certain injuries both from my personal experience and my reading over many years and I could not in my mind work out how she is going to get nearly a full thickness abrasion on her buttock and back of the thigh inside the vehicle. I couldn't see it, I have seen many of these from ejection but I haven't seen them from inside". A little later Dr Purssey said that from the description that he had been given he thought the plaintiff might have been thrown out on gravel. Mr Williams asked Dr Purssey (p. 315) "If one is thrown on gravel or dragged across gravel depending on the gravel one could get these types of injuries?" and he answered "The problem is I can only go on the descriptions that are written. They are written by junior doctors I know this. These were written some years ago and I am trying to work out quite - you know I am not trying to prove anything. I am trying to work out how this occurred and having seen lots of car accidents myself having treated patients having treated a lot of abrasions - if what was said in those records is correct that it is nearly a full thickness abrasion I don't think pulling her along by the legs she is going to rub that amount of skin off but if it were just a moderate sort of abrasion and they were over reacting in what they wrote down, perhaps, I can't say." Mr Williams then asked "How does one get full thickness burns when one lands on - ...?" and he answered "That's not a burn, different thing altogether, a burn is a totally different injury. A full thickness burn looks nothing like an abrasion. This is an abrasion. I do not like that term burn and I don't think those doctors should have been using it.

[182]

Next is the matter of how the plaintiff came to be outside the open passenger's side door of the utility when Blumke arrived at the accident scene some 4 - 5 minutes after the collision. I reject the first defendant's evidence that he pulled her out of the car. I reject his evidence that she was in the driver's seat and that he was in the passenger's seat when he recovered consciousness after the collision. I find that his comminuted fracture of the right femur was very painful indeed and was such that, had the plaintiff been in the passenger's seat immediately after the collision it would have been physically impossible for the first defendant, because of the fractured right femur, to have got himself out of the utility and pull the unconscious plaintiff out of the utility and to the position where she was found by Blumke. I have already made findings as to what the first defendant first recalled after the collision - that he was sitting outside the utility and the plaintiff was lying near the open passenger's side door with her head nearer than her feet to the first defendant. Despite the presence of what has been called a burst proof lock on the passenger's side door of the utility I have concluded that it was more likely than not that immediately after the collision with the tree the plaintiff's body (not being restrained by any seat belt) moved forward, her head struck an object inside the utility, (probably the windscreen) and she was then thrown back with considerable force and her body which as I have said was not tethered by any seat belt, travelled through the passenger side door which had opened during the collision and its after effects and that she struck the ground outside with considerable force sustaining in the process her fractured sacrum and the friction burns and abrasions to the posterior upper legs and buttocks. On this aspect I accept the evidence of Dr Purssey that these abrasions and friction burns could only have been caused by her striking the ground following ejection from the vehicle and that the fracture of the first sacral segment could only have been caused by her striking the ground following ejection and that a fracture of the sacrum is caused by either a blow from behind or a fall onto the buttocks.

[309]

The defence led evidence from Mrs Cheryl Ann Walker, one of the proprietors of the residential institution known as Leighton Lodge in Toowoomba. Mrs Walker gave evidence that at Leighton Lodge there were 25 single lockable rooms. Her evidence was that each resident paid $140 per week for accommodation and meals. The defence have urged me to adopt these fees as the yardstick for the cost of care for the plaintiff if she were to be alone and in need of care. Having heard Mrs Walker's evidence I am satisfied that what is paid at Leighton Lodge is of no help to me. Mrs Walker's evidence satisfied me that each of the 25 residents has come to Leighton Lodge on referral from a government service or a government department such as the Baillie Henderson Psychiatric Hospital in Toowoomba. Each government service knows what is offered by Leighton Lodge and decides that one of that service's patients or clients is suitable for Leighton Lodge. Leighton Lodge has never had a resident who has come as it were on a private basis as opposed to a government chosen basis. Ninety-five per cent of all the residents at Leighton Lodge have their affairs managed by the Public Trustee. Mrs Walker describes the nature of their accommodation as "supportive accommodation for people who through intellectual disability, brain injury, [being] reformed alcoholics, all have problems". The proprietors of Leighton Lodge have never yet made a decision themselves as to whether a particular person is able to go to Leighton Lodge and such decisions have always been made by one of the government services. Medical records for each resident are not held at Leighton Lodge - they are held by the particular government department and that department will, if required by either of the proprietors of Leighton Lodge, provide liaison persons to attend to the needs of any particular resident. A doctor is on call if needed. Neither of the proprietors is a doctor or a nurse and neither has any particular medical experience. All meals are provided, washing and cleaning are provided by the proprietors. The proprietors leave the premises at about 7.30 pm each day and one or other of them arrives at 5.30 am next day. Each resident retires early each night.

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Judgment (529 paragraphs)

Cases Cited (3)