Darrell Hudson v ACT Electricity and Water Authority and the Government Insurance Office of New South Wales and the Government Insurance Office of New South Wales As Third Party [1994] ACTSC 115 (24 November 1994)

SUPREME COURT OF THE ACT

DARRELL HUDSON v ACT ELECTRICITY AND WATER AUTHORITY AND THE GOVERNMENT
INSURANCE OFFICE OF NEW SOUTH WALES and THE GOVERNMENT INSURANCE OFFICE OF NEW
SOUTH WALES as Third Party
No. SC 1427 of 1988
Number of pages - 7
Motor Vehicles

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Motor Vehicles - Third Party Insurance - Unidentified Motor Vehicle - Due Search and Enquiry.

Harrison v Nominal Defendant (1975) 7 ALR 680

Motor Vehicles (Third Party Insurance) Act 1942 (NSW); S.30(2)(a)

Negligence - Contributory Negligence - Failure to wear seat belt - Lap type - Whether Cause of Damage - Whiplash type Injury - Whether seat belt in working order.

Till v Theuma (Master Hogan, ACT Supreme Court, 29 April 1994, unreported).

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Whiplash Injury to neck - No issue of Principle.

HEARING

CANBERRA, 20 September 1994
24:11:1994

Counsel for the Plaintiff: Mr G Parker

Instructing Solicitors: Gary Robb and Associates

Counsel for the First Defendant: Mr J Pappas

Instructing Solicitors: Pappas J Attorney

Counsel for the Second Defendant: Mr B Hull

Instructing Solicitors: Crossin Barker Gosling

Counsel for the Third Party: Mr B Hull

Instructing Solicitors: Crossin Barker Gosling

ORDER

1. Judgment be entered for the plaintiff against the defendants for $43,346.00.

2. The defendants pay the plaintiff's costs.
3. Judgment be entered for the first defendant against the second defendant

for $36,844.00.
4. The further question of costs is reserved.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in an incident that occurred on 19 January 1987.

2. The plaintiff was employed by the first defendant as a cable layer, and on that day he was a passenger in a vehicle owned by the first defendant, and being driven by a fellow employee, Mr Reid, at the intersection of Yass Road and Bungendore Road, near Queanbeyan, in New South Wales.

3. The plaintiff's evidence was that the truck in which he was a passenger was being driven along Yass Road towards the intersection, where Bungendore Road joined it from the right. As it stopped at the intersection he looked to the right and saw a car approaching with its left turn indicator on.

4. He looked to the front as the truck moved off. Suddenly he saw a white flash in front of him, and the brakes of the truck were suddenly applied. He was jolted forward, and his head hit the windscreen. He was dazed.

5. There was no collision between the two vehicles. The driver of the car continued on up Yass Road. The car was not identified. The plaintiff sued both his employer and the Government Insurance Office of New South Wales. His employer joined the Government Insurance Office as third party, claiming contribution.

6. All that the plaintiff saw of the car as it passed in front of him was that it was a blur, or a flash. It was a light coloured car. It may have been white. It might have been pale yellow.

7. Mr Reid, the driver of the truck, was called by the first defendant. He confirmed that he was driving an International truck, with the plaintiff as passenger, in Yass Road, at about 9.00am. When he reached the intersection with Bungendore Road he stopped. He looked to the right and saw a car coming. He looked ahead, and nothing was approaching. He looked right again, and the car had moved into the left turning lane in Bungendore Road, with its blinker indicating an intention to turn to the left. There was no other vehicle behind it. He proceeded to begin his right hand turn.

8. The truck was unloaded. He moved off in second gear, without any particular hurry or urgency. He had travelled about the length of the truck when he saw a white object in front of him. He applied the brakes hard. They were air brakes. The truck stopped instantly. The plaintiff struck his head on the windscreen, shattering it.

9. He was not able to say what type of car had turned in front of him. He did not notice any number plates.

10. The plaintiff, some time later, asked Mr Reid whether he had any idea what sort of car it was, or whether he could give him any information about it. He told the plaintiff that all he saw was a white flash.

11. On returning to the depot at Kingston Mr Reid filled in a report form to the defendant Authority.

12. The plaintiff made no other enquiries about the identity of the car that caused the incident. Counsel for the second defendant and third party submitted that the requirements of S.30(2)(a) of the Motor Vehicles (Third Party Insurance) Act 1942 (NSW) had not been satisfied, on the basis that due search and enquiry had not been made. As Barwick CJ pointed out in Harrison v Nominal Defendant (1975) 7 ALR 680, the precise issue is whether the identity of the relevant vehicle could or could not be established after due search and enquiry. I think that the following passage from his judgment determines this issue in this case, where, at p682, he said,

"The stipulation that the identity of the vehicle is incapable
of being established is made for the protection of the Nominal
Defendant. It imposes no obligation, as such, upon the
plaintiff; though the plaintiff to succeed must establish that
the identity is incapable of being established as in the terms
of the section.
The word "after" in the subsection does not, in my opinion, require
that some inquiry and search must necessarily in fact
always precede some other event or the drawing of a conclusion.
If, in the circumstances of the case, it is evident that the
identity of the vehicle could not be established by due search
and inquiry the stipulation, in my opinion, may be held to be
established, although no search or inquiry destined to be
futile has been made. The section does not, in my opinion,
require that in every case, irrespective of its circumstances, some
inquiry and search should have been made. Whether or not
the identity of the vehicle might have been established after
search and inquiry appropriate to the circumstances of the case
had been made is a question of fact. That, in my opinion, is
the relevant issue in a case brought under S.30(2)(a) of the
Act. It is not whether some search and inquiry has been made.
The presence of the word "due" in the subsection emphasises
that the question is whether the identity of the vehicle cannot
be established through such search and inquiry as might
appropriately be made in the circumstances of the case had
taken place."

13. There were no witnesses to the accident other then the plaintiff and Mr Reid. There was no actual collision. The driver of the car had no reason to suspect that anyone had been injured in the near miss. The plaintiff made an enquiry from Mr Reid. An advertisement in the paper would have had to be so vague as to be useless.

14. I am satisfied as a matter of fact that there were no other searches or enquiries that the plaintiff could appropriately have made in the circumstances. It is clear that the identity of the car could not possibly be established, no matter what further action he took.

15. The intersection where the incident took place is open, with no obstruction to vision. The driver of the car indicated an intention to turn left, and moved into the left turn lane. If that driver was looking ahead, it must have been obvious that the truck driver was on the intersection, about to make a right hand turn.

16. A reasonably prudent driver in those circumstances would appreciate that to change course and make a right hand turn, across the path of the truck, and after it had begun to move off, would create a situation of danger to the occupants of the truck. In driving in that manner the driver of the unidentified car failed to exercise reasonable care for the safety of the plaintiff. There will be judgment for the plaintiff against the second defendant.

17. When Mr Reid saw the car approaching he estimated its speed at about 30 miles an hour. Although he saw it moving into the left hand lane, with left indicator on, he did not see it slow down. He assumed that it would do so. A prudent driver needs to exercise just a little more care. It is part of the common experience of driving that other drivers foolishly change their minds, and more is needed in order to make a sound driving judgment than a quick look and an assumption.

18. I think that Mr Reid also failed to take reasonable care in not keeping the car under observation for a very slightly longer time. To have waited until a better judgment could be made about the other driver's intentions would have caused no inconvenience. He was already stopped.

19. There will therefore be judgment for the plaintiff against the first defendant.

20. In the contribution proceedings however it is clear that the driver of the car must bear considerably more responsibility for the near collision. It was that driver's actions that caused the situation of danger. Mr Reid's only fault lay in not apprehending at the time that the car driver might do something so dangerous. His quick action in braking avoided what might have been a more serious collision. His responsibility, though he must bear some, was minimal. I would apportion responsibility for the plaintiff's damage as to 15% to Mr Reid, and therefore to the first defendant, and as to 85% to the driver of the unidentified car, and therefore to the second defendant.

21. In the contribution proceedings there will therefore be judgment for the first defendant against the second defendant for 85% of the damages to be awarded to the plaintiff.

22. The plaintiff did not lose consciousness when his head hit the windscreen, but he felt dazed. About five or ten minutes later he felt pain in the back of his neck and down his right arm.

23. He was taken back to the Depot, and then to the Royal Canberra Hospital accident and Emergency Department. He was seen after waiting sometime in discomfort. He was noted as complaining of pain down the right side of the neck, and headache. Xray and clinical examination did not demonstrate any bony or neurological injury.

24. He was given a soft collar, a prescription for analgesics and a muscle relaxant. He was also referred for physiotherapy and given a certificate for 7 days off work.

25. At the end of January he consulted his general practitioner, Dr Quach, who prescribed more medication and physiotherapy. He went to work, but was not able to perform heavy duties. The other members of his gang assisted him.

26. His solicitors asked for a report from Dr Andrews, who saw him in July 1987. He was complaining that his work aggravated his neck and arm pain and headaches. Dr Andrews sent him for a CT scan, which was performed on 30 July 1987. There was no evidence of disc pathology, which fact suggested to Dr Andrews that his injury was muscular and ligamentous.

27. His solicitors also sought a report from Dr Keiller, who investigated carefully what precisely had happened to the plaintiff on impact. The history that he elicited was that at impact his neck was twisted, so that his face went to the left and his head and shoulders then rebounded backwards. His neck went further back than the rest of his spine, as there was no neck restraint fitted to the vehicle seat.

28. He had returned to work, but was performing more supervisory duties, though officially there were no light duties. He was still getting headaches, and experienced discomfort if he had to work above shoulder level. There was no longer any pain or paraesthesia in the arms. He was not on any treatment other than exercises and massage.

29. Dr Keiller found no abnormal physical signs. He assessed his injury as having been a quite severe stress to soft tissue, for which the prognosis was good. Nevertheless, he expected that the neck would never return completely to normal, and the plaintiff would always experience some minor discomfort from time to time.

30. He continued at work for some time, but found that the heavier duties caused pain, and he did not think that it was fair to his fellow workers to continue.

31. He resigned voluntarily from the defendant's employment in August 1988. He obtained a job processing fish in Tasmania which was within his physical capacity, but which did not pay as well as his former employment.

32. The job ceased late in 1989 for local economic reasons. He was unemployed for a time and then got a job in Hobart as a fish filleter in July 1991. He was able to cope with the work without discomfort.

33. In January 1992 he returned to Canberra, where he drove a truck, again without adverse effects. He is now working with Canberra Meats as a delivery driver.

34. On 16 June 1994 Dr White, consultant neurologist, examined him at the request of his solicitors. His only complaint was of pain on over exertion. There was slight restriction of cervical spine movements.

35. In Dr White's assessment the plaintiff had suffered a significant whiplash injury. There had also possibly been some disc injury which Dr Andrews had also suspected, but which has not been demonstrated. Dr White advised against heavy work. His condition had settled quite substantially over a period of several years, and is now stable.

36. I agree with that assessment.

37. For his pain and suffering I award $20,000.00, which for practical purposes in assessing interest is in the past. For interest on the conventional basis I award $3,100.00.

38. The out of pocket expenses are agreed at $444.00. The plaintiff lost $2,302.00 in wages while working for the defendant. I think that it was reasonable for him to seek other more suitable employment, which turned out to be less remunerative.

39. Detailed evidence is not available to enable a calculation to be made. I do not think the defendants are responsible for the loss that occurred for reasons peculiar to the Tasmanian economy. No claim is made for any period after July 1991. As a matter of judgment I award $10,000.00 for loss of income after he left the defendant's employment. I award a lump sum of $2,500.00 in lieu of interest on past loss of income.

40. There is a possibility that he may lose income in the future because of his inability to engage in heavy work. However, the range of jobs within his capacity is so wide that I do not consider that a large award should be made on that account. The plaintiff is aged 30. I award $5,000.00 as a buffer against the possibility of lost income in the future.

41. A total award should therefore be made up as follows,

Pain and suffering $20,000.00
Interest 3,100.00
Out of pocket expenses 444.00
Past loss of income 12,302.00
Interest 2,500.00
Future loss of income 5,000.00
TOTAL $43,346.00

42. The defendants submitted that his damages should be reduced on account of his contributory negligence in not wearing a seat belt.

43. The seat belt fitted was a lap type belt only. I am not persuaded that had he been wearing that seat belt his injuries would have been any the less. It is possible that his head might not have hit the windscreen, but it is also possible that it might have done so, even if he had been wearing the lap type seat belt. But the blow to the head is an insignificant part of his damage. The injury was really to the muscles and ligaments of the neck, and those injuries account for his headaches, in my opinion. It is notorious that not even a lap and sash belt prevents whiplash injury.

44. There is also the fact that there is no evidence from which it could be inferred that the lap belt fitted was in good working order. In Till v Theuma, (Master Hogan, ACT Supreme Court, 29 April 1994, unreported), I set out the relevant authorities on this point and my interpretation of them. I do not regard the union black ban as relevant. But the vehicle belonged to the first defendant, and in the absence of any evidence I am not prepared to assume or infer that the seat belt was adequate.

45. There will therefore be no reduction in the plaintiff's damages on account of contributory negligence.

46. I direct the entry of judgment for the plaintiff against the defendants in the sum of $43,346.00. I order the defendants to pay the plaintiff's costs.

47. On the proceedings for contribution I direct the entry of judgment for the first defendant against the second defendant third party in the sum of $36,844.00.

48. I reserved the further question of costs.