MVA – apportionment 75/25% against the plaintiff & credibility problems – $11,449.47

Holland v Kachel & QBE Insurance (Aust) Ltd [2010] QDC 287

CATCHWORDS:

DAMAGES – NEGLIGENCE – PERSONAL INJURY –

motor vehicle accident – application of s.146 of the Transport Operations (Road Use Management – Road Rules) Regulation – whether the collision occurred on a ‘road’ or a ‘road related area’ – application of s.74 of the Transport Operations (Road Use Management – Road Rules) Regulation – contributory negligence by plaintiff.

The plaintiff was involved in a motor vehicle accident after having dropped of rubbish into an industrial bin at truck stop area. The first defendant was the driver of the refuse truck and employed by the Gatton Shire Council to collect rubbish from the truck stops. The collision occurred when the first defendant entered the truck area from the right and was on the opposite side of the bins when the plaintiff’s vehicle came from a grassed area and collided with the right front.

In issue was whether the truck stop was a ‘road’ or a ‘road related area’. If it was a road the first defendant was under an obligation to keep left otherwise the plaintiff then had an obligation to give way.

Deardan DCJ held it was not a road, but rather a road related area. In which circumstance, the plaintiff had an obligation to give way to all traffic. The defendants relied upon the conviction of the plaintiff for driving without due care and attention previously in support. However, given the first defendant’s practice and knowledge of the area for the past 10-12 years an apportionment of 25% was made against the defendants.

Quantum

The plaintiff’s evidence as to previous injuries and the impact of the accident was not believed. This flowed from a failure to disclose on the Notice of Accident Claim Form, poor histories to the doctors and inconsistencies in evidence:

[30] There are further issues which raise serious concerns as to the plaintiff’s credibility.

In particular the plaintiff’s Notice of Accident Claim Form disclosed only the following:-

(a) Motor vehicle accident in 1994 in which the plaintiff sustained a whiplash injury;

(b) Two rib cartilage injuries sustained while playing football;

(c) An operation on his right knee in 2002;

(d) Two operations on his left knee in 1993 and 1994.41

In fact, the plaintiff had made a total of eight Workers’ Compensation claims (including in relation to these current proceedings). The following were in respect of back injuries:-

(a) On 12 January 1983 the plaintiff strained his back while bending over to remove a paint roller;

(b) On 1 July 1987 the plaintiff strained his thoracic spine while bending over to pick up sheet metal;

(c) On 29 September 1987 the plaintiff strained his back when he tripped over some steel lining on the ground; and

(d) On 23 January 1996 the plaintiff strained his lower back at work.

[31] The plaintiff accepted that he had not made full disclosure of all his prior injuries in the relevant Notice of Accident Claim Form.42 It is submitted on behalf of the defendants (and I accept) that the plaintiff’s attempts to explain this level of nondisclosure was “entirely unsatisfactory” and further the medical histories provided by the plaintiff to doctors Meibusch, Pentis and Morris were neither “candid nor accurate”. It is clear from the medical evidence that the applicant has a long and extensive history of medical problems involving his lumbar and thoracic spine. As a consequence, I consider that, in the absence of supporting evidence, the oral evidence of the plaintiff as to his symptoms arising from the collision on 19 March 2007 should be approached with a significant degree of caution.

[32] The evidence of Dr Meibusch43 indicates that the collision on 19 March 2007 “aggravated pre-existing degenerative changes in [the plaintiff’s] cervical spine” which did not require either a surgical procedure or other treatment other than pain relief. Dr Meibusch considered that the aggravation would require another couple of months to substantially subside.44 In a conference with counsel for the defendants (the file note becoming evidence in the proceedings), Dr Meibusch stressed that what had occurred was an exacerbation of the plaintiff’s pre-existing degenerative disease.45 Dr John Morris46 also considered the collision of 19 March

2007 had aggravated pre-existing symptoms of whiplash arising from a motor vehicle accident in 1994 which were asymptomatic at the time of the collision on 19 March 2007. Dr Morris took the view that the prognosis was “for continuation of mild symptoms but as occurred in the 1994 episode these [symptoms] are likely to improve and eventually resolve.”47

[33] Dr Pentis, however, considered that the plaintiff was left after the 19 March, 2007 collision, with a residual impairment which he assessed as 10% whole person impairment.48 Dr Pentis conceded in cross-examination that the fact that there were no rib fractures (as he had been incorrectly informed by the plaintiff) reduced his assessment of impairment to 5% of whole person. However, Dr Pentis maintained that the soft tissue injury from the collision on 19 March 2007 would have compounded the pre-existing degenerative process in the plaintiff’s spine and the effect would be an ongoing, rather than transient, aggravation.49

[34] It is then necessary to consider the plaintiff’s post collision work history. The plaintiff had his employment with Amalgamated Plastics Engineering terminated on his return to work on 1 August 2007 (the company had restructured its operations to provide plastics for just a single client during the plaintiff’s recovery process.)50

[35] The plaintiff then obtained a job in November, 2007 with the Truss Company, then he subsequently worked for Cardinal Seafoods, then for the Goodlife Gym, before he returned to work at Cardinal Seafoods as a dispatch driver. With the exception of the employment at the Goodlife Gym (which was an office job, in which the plaintiff could see no prospect of a progression to management)51 the plaintiff’s employment since the collision has all involved significant physical activity.

[36] I consider that the following findings therefore are warranted on the evidence namely:-

1. The plaintiff:

(a) Did not suffer any fractured ribs in the collision;

(b) Endured pain and suffering and loss of the amenities of life;

(c) Required medical, rehabilitative and pharmacological treatment;

(d) Was unable to undertake his employment as an “Assistant Manager”

at Amalgamated Plastics Engineering (a position which substantially required him to work as a sales person, and involved significant time driving a motor vehicle); and

(e) Incurred the cost of medical treatment and other out of pocket expenses.

2. The injury which the plaintiff suffered to his cervical or thoracic spine was an aggravation or exacerbation of pre-existing degenerative changes and, in a practical sense, had substantially resolved by 1 August 2007.

3. Any ongoing impairment of the plaintiff arises from pre-existing degenerative changes in the plaintiff’s cervical and thoracic spine as detailed in the CT scan on 26 April 2007.52

4. The plaintiff’s ongoing impairment, if any, is minor, does not require further medical treatment, and has not (and will not) impact on the plaintiff’s employability, and capacity for employment as a sales person or manager or capacity to study.

[37] I make the following findings as to damages.

1. General damages53 $4,000.00

2. Special damages $5,937.23

3. Interest on past special damages54 $661.00

4. Future special damages

I do not consider that the plaintiff has shown any basis on which to claim “future special damages” as asserted in respect of gym membership, medical expenses and pharmaceutical expenses. The plaintiff’s ongoing impairment, if any, I find is minor only.

Nil

5. Past economic loss (from 19 March 2007 – 2 November 2007).

In my view it was reasonable to allow the plaintiff three months to find a new job once he was considered fit to return to work. $16,359.85

6. Interest on past economic loss55 $530.41

7. Loss of superannuation contributions $1,472.39

8. Future Economic Loss

The plaintiff has approximately 18 years in the workforce before retirement at 65 years. None of the medico-legal or rehabilitation reports appear to preclude the plaintiff from working in either his existing employment (he currently works as a delivery driver for Cardinal Seafoods) nor has he been restricted in any of his subsequent employment since 2 November 2007 while employed by the Truss Company, Goodlife Health (Gym Membership Sales) and Cardinal Seafoods.

The plaintiff has undertaken further studies at Griffith University and intends to complete a Ph D. At best for the plaintiff, he has a “general stiffness and soreness” that he describes as “sort of being there all the time”.56 In my view therefore the appropriate assessment on a global basis for the plaintiff’s loss of earning capacity would be $15,000.00 with no component for loss of superannuation.

9. Fox v Wood component $1,837.00

 

TOTAL $45,797.88

 

Apportionment

 

[38] As I have found, the plaintiff, in my view, was 75% responsible for the collision.

Accordingly I order judgment for the plaintiff against the first and second defendants in the amount of $11,449.47.

42 T1-61.

43 Exhibit 10.

44 Exhibit 10 p.2.

45 Exhibit 10A.

46 Exhibit 11.

47 Exhibit 11 p.7.

48 Exhibit 12 p.5.

49 T1-78.

50 T2-53.

51 T1-27.

52 Exhibit 8 – report of Dr Yunus Solwa.

53 Assessed under item 89 (minor cervical spine injury) ISV range 0-4.

54 3% of $1,081.35 over 2.52 years

55 Calculated on $7,015.95 at 3% over 2.52 years (Workcover benefits totalled $9,343.90).

56 T1-27.

Brisbane Barrister – David Cormack

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