Ivica Tomicic v David Maxwell Clappison [1995] ACTSC 138 (8 December 1995)

SUPREME COURT OF THE ACT

IVICA TOMICIC v. DAVID MAXWELL CLAPPISON
No. SC338 of 1993
Number of pages - 10
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Motor Vehicle Accident - Liability in issue - Internal injuries - Back injury - Inability to return to work as bricklayer - No issue of principle.

HEARING

CANBERRA, 21-22 March and 30-31 October 1995
8:12:1995

Counsel for the Plaintiff: Mr P. Shiels QC

Instructing Solicitors: Scott Shiels and Glover

Counsel for the Defendant: Mr C. Branson QC with Mr M Scott

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the defendant.

2. Plaintiff to pay the defendant's costs.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 30 July 1992. The principal issue in the case is whether the defendant was guilty of any negligence.

2. The plaintiff was born in Croatia on 12 December 1937. He attended primary school there, and then became a bricklayer. He has no other skills.

3. He came to Australia in 1962, married in 1969, and has 3 adult children. He carried on business as a self-employed bricklayer.

4. On 30 July 1992 he was driving a Holden station wagon which was towing a trailer which contained his tools and equipment. There was a violent collision with a loaded semi-trailer driven by the defendant. The plaintiff was wearing a seat belt. He was thrown forwards and lost consciousness. He awoke in Woden Valley Hospital, where he had been taken by ambulance.

5. On admission he was found to have internal injuries. An operation was performed under general anaesthetic to repair a small tear in the capsule of the spleen, a transection of the descending colon and a tear of the small bowel mesentery.

6. During the operation it was noticed that there was pathology of the appendix, which was also removed. X-rays of the pelvis and lumbo sacral spine showed degenerative change in the lumbar spine, but no other abnormality.

7. After the operation he developed a large haematoma in the left flank. Abdominal pain continued to such a degree that an epidural catheter was used to control the pain. He also had a lung infection. There were also at least soft tissue injuries to the cervical, thoracic and lumbar spine.

8. He was discharged from hospital on 10 August 1992. When his surgeon, Dr Dyason, reviewed him on 23 November 1992 a nylon suture from his abdominal wound was causing discomfort.

9. He continued to suffer abdominal pain. In April 1993 his general practitioner reported that he doubted that he was physically capable of doing heavy manual work. He applied for and was granted a pension.

10. In February 1994 he developed a hard lump in the abdominal scar, which was seeping fluid and causing pain. Dr Quach removed a nylon suture under local anaesthetic. Because of his lack of language, education or clerical skills Dr Quach assessed him as virtually unemployable.

11. On 12 January 1994 Dr McEwin examined him for the defendant. He was not accompanied by an interpreter, and Dr McEwin had some difficulty in getting a detailed history. The plaintiff complained of continuing abdominal pain, pain in the lower back, and over the right shoulder area. He no longer had problems with his neck, though there was about a 20% reduction in neck movement.

12. He had a very long abdominal scar. In Dr McEwin's opinion he was unfit for work as a bricklayer, or for any heavy or moderate work. Dr McEwin expected further improvement.

13. On 11 January 1995 Dr McEwin re-examined him. His main pain was in the abdomen. There was still some irritation along the operation scar. There was tenderness in the right trapezius muscles. Neck pain had settled, but again there was very limited neck movement. Dr McEwin reported that he was not fit for heavy work, though physically he might be capable of doing medium or light work. He did not agree that he was totally and permanently incapacitated for work. However, the plaintiff's capacity to find work is limited, he said, by his cervical spondylosis and premature aging, and the likelihood of his finding medium or light work is much reduced by his difficulty with language and his inability to read or write.

14. In a practical sense, I agree with Dr Quach, that he is unemployable. He is 58. He has a normal life expectancy. There is no reason to expect any improvement in his condition.

15. I would assess compensation for his pain and suffering at $60,000, of which about $20,000 would relate to the future. Interest on the past component amounts to $2,500.

16. The out of pocket expenses were agreed at $8,760. I do not know whether they have been paid or not, and if paid by whom, and no claim is made for interest on that element of the award.

17. The extent of the plaintiff's economic loss, past and future, is very much a matter of judgment rather than calculation. He was self employed. In June 1989 he had injured his right wrist and hand. During the rest of that year, and until the middle of 1991, he was working on extensions to his own home. He was formally in partnership with his wife, but the partnership's only source of income was his personal exertion. In 1991-1992 the partnership's taxable income was $24,197. Comparison with the earnings of his brother tends to support an earning capacity of about that order as a net income. Counsel for the defendant made no submissions on the matter, and the submissions of counsel for the plaintiff appear to be based on gross taxable income, but, as he submitted, the matter is very much at large. A capacity to earn $465 a week after tax does not seem to me to be unreasonable as a basis for calculation.

18. On that basis, the past loss of income would be $81,441. There must be some discount for the vagaries of the building industry over that period. I allow $75,000 for past loss of income. Half the interest on that sum in accordance with the practice direction is $14,300.

19. The present value of that weekly sum for 7 years is $153,378. I am not persuaded that the plaintiff has any real residual income earning capacity. The period is short, but again contract bricklaying is not the most steady of income earning occupations. There must also be a substantial discount for the possibility that his spondylosis might well have prevented his working as a bricklayer till age 65. I allow $100,000 for future loss of income earning capacity.

20. A full measure of compensation to the plaintiff for his injuries would therefore be made up as follows:

Pain and Suffering 60,000
Interest 2,500
Out of pocket expenses 8,760
Past loss of income 75,000
Interest 14,300
Future loss of income 100,000
260,500

21. I turn therefore to the question of liability.

22. The scene of the collision is well shown in the aerial photograph Exhibit A. The following description is taken from the report of Mr Vaughan, a professional engineer specialising in accident investigation, who visited the scene.

The crash occurred at the intersection of the Monaro Highway and
Johnson Drive in Calwell, ACT. The intersection was in hilly country
on a curved section of the Monaro Highway where Johnson Drive formed
an angled T intersection on the western side of the Highway. For
south bound traffic, the intersection was just beyond the bottom of a
hill, where the gradient once again started to increase.
The speed limit on the Monaro Highway was 100 km/h.
At the intersection, the Monaro Highway had three through lanes, with
two marked lanes for south bound travel and one lane for north bound
travel (Figures 1 and 2). Each carriageway was edge marked and had
broken lane separation lines. The good sight distance to the
intersection was about 300 m for north bound traffic and about 300 m
for south bound traffic.
The crash site was an extensively channelised intersection with median
strips on both approaches on the Monaro Highway, and on Johnson Drive.
The south bound traffic on the Monaro Highway had a right turn lane
which incorporated an island for guiding the traffic turning right
into Johnson Drive, and also for guiding traffic turning right out of
Johnson Drive onto the Highway. The island on the Highway separated
right turning south bound traffic from the south bound traffic on the
two through lanes.
Approaching the intersection, north bound traffic had a left run lane
which was separated by an island from the through lane.
The islands and median strip sections were all equipped with concrete,
mountable kerbs.
The pavement at the time of the crash was dry bitumen. The weather
was clear.
The Monaro Highway at the crash site had a grade of about 1% just
before the point of impact, and about 2% when about 50 m north of the
intersection (that is, the gradients were slight at the intersection).
The gradient was uphill for north bound traffic, and downhill for
south bound traffic.
The section of Highway concerned was on a curve with multiple,
transition radii, but with an equivalent radius of about 500 m. From
about 50 m south to about 50 m north of the intersection, the curve
"flattened" to a radius of about 600 m. The north bound lane had a
superelevation (or banking of the curve) of about 1%. The radius of
curvature and superelevation were quite suitable for a speed limit of
100 km/h.

23. His following description of the vehicles involved is also useful, the details not being in issue.

Vehicle 1 - 1990 Kenworth T600 prime mover towing a semi-trailer
Vehicle 1 was a 1990 Kenworth T600 prime mover towing a semi-trailer.
The prime mover/semi trailer combination had a total of six axles (one
steer; two drive; and three trailer axles) and would have had the
capacity to be loaded to the maximum legal limit of 42.5 tonnes. The
combination had an unladen mass of 16.6 tonnes.
The semi-trailer was laden with 18 tonnes to 19 tonnes of sawdust, and
the laden mass of the combination at the time of the crash was
probably about 34.6 tonnes to 35.6 tonnes.
The Kenworth would have been manufactured to comply with a number of
Australian Design Rules (ADR's), in particular
ADR 35/00 Commercial Vehicle Brake Systems
which specified various design and performance characteristics.
The collision with the Holden apparently occurred on the left front of
the Kenworth, with the box trailer colliding with the right front of
the Kenworth. There was relatively superficial body damage to the
Kenworth, but considerable "carry-through" damage to mechanical
components such as the steering box and the turntable connection
between the prime mover and the semi trailer. Because the Kenworth
structure was longitudinally very stiff, shock waves from the impact
were very efficiently carried through to relatively remote components,
generating the additional damage.
Vehicle 2 - 1970 Holden HT station wagon towing a box trailer
Vehicle 2 was a 1970 Holden HT station wagon towing a small box
trailer. The motor vehicle was a six cylinder, "family sized" station
wagon. According to published specification data, the Holden would
have had a tare mass of about 1310 kg.
At the time of the crash, the vehicle was apparently carrying one
adult. The laden mass of the Holden at the time of the crash was
probably about 1400 kg.
The box trailer had a single axle and appeared to have been about the
size of a "6 foot by 4 foot" trailer. It was said to have been
carrying builder's equipment (including a small cement mixer).
The box trailer was broken away from the Holden by the impact, but
otherwise apparently received little substantial damage. The Holden
was substantially damaged by the impact on the left hand (or
passenger's) side, approximately in the area of the rear axle (the
left rear door was substantially damaged, as was the panel to the rear
of that door, and roof in the area of impact). Presumably because of
the height of the very substantial bumper bar system of the Kenworth,
the damage to the Holden appeared from the video to have been above
the rear wheel; that is, the rear wheel was not impacted by the
Kenworth.

24. The plaintiff's evidence was that at about 4 pm he was driving from Hume to Tuggeranong. He drove on the Monaro Highway, intending to turn right into Johnson Drive. When he got to the intersection he stopped and looked to the left. He saw the truck a long way away, he put his vehicle into gear and moved forward. When he moved the truck came very fast. He heard the scream of brakes and then there was a collision. He estimated that the truck was 250 metres away when he first saw it. He fixed its position as being near to a sign by the road a long way away.

25. In cross examination he said that as he was driving down the hill towards the intersection he was in normal third gear, but travelling slowly. When he came close to the intersection he changed into second gear and then stopped. He insisted that he came to a complete stop. He could not estimate for what period of time he was stopped before moving off again. As he expressed it, "I stopped, put in the first gear, had a look to the left and saw the truck at a fair distance and I proceeded to cross." He did see the truck, and he thought he had enough time to drive across in front of it.

26. The defendant gave evidence that he was driving the Kenworth prime mover and trailer north on Monaro Highway. He was familiar with the road in the vicinity of the intersection. The trailer was loaded with hardwood sawdust, and the total weight of prime mover and loaded trailer was 39 to 40 tonnes. From about 5 kilometres south of the intersection the Highway generally descends from the top of a range, until, approaching the intersection, at the end of a long incline the road bottoms out and then begins to go up a slight gradient to the intersection.

27. As he came down the hill towards the intersection he was in 13th gear, with an electronic engine braking system called the J brake engaged, travelling at about 80 kilometres an hour. When about 300 metres from the intersection he saw the plaintiff's vehicle travelling in the opposite direction, towards the intersection, and in the right turn lane. It was then closer to the intersection than he was. He maintained his speed. The other vehicle slowed right down and then it made a turn. He estimated his distance then at about 40 metres. He applied all foot and hand braking systems. He continued in a straight line, and the collision took place. He travelled about a car length past the point of impact.

28. He called an ambulance on his radio and got out of the truck. He saw skid marks behind the prime mover and also behind the trailer. On later examination he saw that 5 of the trailer tyres had flat spots on them from the skidding.

29. In cross examination he denied taking the J brake off and accelerating in order to negotiate the uphill grade that faced him beyond the intersection. He also insisted that he was well past the sign to which the plaintiff had referred in evidence when the plaintiff was slowing down. It was put to him, "I suggest to you that he did stop and you expected him to stay there. What do you say about that?" He replied, "Well once again, I don't know that he completely stopped, but at the same time I did expect him to stay there."

30. He did not measure the skid marks, or make any careful observation of them. He realised that the intersection was a dangerous one. When asked, "Was your reason for leaving your foot over that brake the fact that there was another car at the intersection, and although you thought he was going to wait, you weren't sure if he'd wait?", he replied, "Yes." He did not sound his horn in warning or slow down.

31. The defendant called as a witness Mr Ian Benson. On the day of the accident he was driving a semi trailer furniture van from Cooma to Sydney. In the hilly country near Michelago he came up behind the defendant's semi trailer, about 10 to 15 kilometres before the scene of the collision. Although his van was lighter than the defendant's vehicle he was unable to overtake because of the road conditions and traffic travelling in the opposite direction. He maintained a distance of about 40 to 50 metres behind. As he followed down the incline towards the intersection he was travelling at about 90 km/h. He was gaining on the defendant's truck, and anticipated being able to overtake where the road widened past the intersection. He saw the plaintiff's vehicle coming down the right turn lane, slowing down to about 5 kilometres an hour, and then turn straight in front of the defendant. When the plaintiff's vehicle turned in front of the defendant the front of the defendant's truck would have been about 100 metres or thereabouts from it. He saw the brake lights come on, and smoke coming from the trailer tyres. He jammed on his own brakes. The wheels on his trailer locked up. His vehicle also left skid marks, which overlapped those left by the defendant's vehicle. Because his trailer had dual wheels, and the defendant's trailer single wheels, the skid marks left by the two vehicles were clearly distinct. Mr Benson's description of the accident was not challenged in any way.

32. The first particular of negligence on which the plaintiff relied was that the defendant was driving at an excessive speed. Although the posted speed limit was 100 kilometres an hour, a speed in excess of 90 would be negligent, it was submitted, because the defendant knew that it was a dangerous intersection. The second particular was that, approaching that intersection, which he knew was dangerous, and travelling at speed in a heavy truck, and seeing the plaintiff come to the intersection, he failed to take any action to ensure that the plaintiff had seen him.

33. The defendant did not give any warning of his approach. That is admitted. But the plaintiff's own evidence is that he did see the defendant's truck coming towards him. There was no obstruction to visibility. He put the point at which he first saw the truck at a considerable distance beyond the intersection, in the vicinity of the far sign. He made his own assessment, and thought that the truck was far enough away for him to turn safely. If the defendant owed any duty to warn in those circumstances, the failure to do so was not a cause of the collision. The plaintiff did not turn because he did not know the truck was coming. He turned because he mistook either its distance or its speed.

34. In support of the allegation of excessive speed the plaintiff relied upon expert evidence.

35. Constable Conway, of the Australian Federal Police, has experience and training in accident investigation, and has been a member of the AFP Accident Investigation Squad since 1988.

36. The information on which he based his conclusions included a statement that the defendant had applied his brakes, leaving approximately 93 metres of skid marks on the bitumen surface before colliding with the plaintiff's vehicle.

37. He had attended the scene with Constable Mullins on 11 March 1993, to conduct tests to determine vehicle speeds. He calculated the frictional value of the road surface at .81. On the assumption (which is justified by the evidence) that the braking system of the Kenworth truck was operating efficiently on all wheels of the prime mover and the trailer, he calculated that the speed of the truck at the start of the tyre skid marks would be approximately 115 km/h.

38. The crucial fact assumed by Constable Conway for the purpose of those calculations and that opinion is that the defendant's semi trailer left skid marks up to 93 metres long. Constable Conway did not attend the scene shortly after the accident. For information about that crucial fact he relied on what he was told by one of the officers who had investigated the collision, Constable Mullins, and a sketch plan prepared by Constable Mackey at the direction of Constable Mullins, Exhibit 5.

39. During the evidence given by the three experts called there was much discussion about other factors that are taken into account in calculating speed from evidence gathered after a collision. I do not think that any of them were significant. The only one that was crucial, to my mind, was the length of skid left by the semi trailer. The calculation made by Constable Conway ignored the fact that there had been a collision, or where along the line of the skid marks the collision took place, so that his calculation was quite a conservative one. At some time he made another calculation, for the worst possible road conditions, such as wet bitumen, which yielded a result of 98 km/hr. He also agreed, in cross examination, with alterations made to the calculations set out in his report by Mr Vaughan, but they related mainly to the stopping times of the truck at various speeds, rather than the distance, which is by far the more important factor in this case. The speed at the commencement of the skid marks would still be at least 90 to 95 km/h, if the length of skid mark left by the semi trailer was 93 metres.

40. The plaintiff also called Mr Woodward, an automotive engineering consultant with relevant qualifications. He also assumed for part of his calculations the correctness of the information that the tyre burn marks left by the semi trailer measured 86 and 93 metres respectively. On that assumption he derived an initial velocity of 134 km/h in his report. But, as he observed, it then became an issue whether the tyre burn marks related to the trailer or to the prime mover. During his evidence in chief he took into account the effect of the collision, and derived a result of about 120 km/h.

41. One element of Mr Woodward's report does seem to me to be an accurate observation. That is (at 6.07 of Exhibit F) that if the defendant had been travelling at 80 km/h the distance required to halt the truck would have been of the order of 58 metres, and that the defendant's estimate that when the plaintiff started to turn he was only 40 metres from him is inaccurate.

42. His report concluded that in his opinion the defendant had ample distance available to him to note the approach of the turning vehicle and take measures to brake his vehicle to avoid a collision. That conclusion, however, depends upon whether he had reason to believe that the vehicle was about to turn across his path, or, perhaps more accurately, how far was he from the point of impact when he should have realised that the plaintiff might turn across his path.

43. The expert called by the defendant, Mr Vaughan, also is a professional engineer, and a consultant in accident investigation.

44. His report contained the following discussion:

The computer analyses indicated that, at impact, the Kenworth was
travelling at about 25 km/h to 35 km/h. A conservative approach was
taken to the assembling of data for the simulations; that is, the
analyses were likely to overestimate the Kenworth speed, rather than
underestimate it.
If the Kenworth had braked at an average rate of 0.43 g (the most
severe requirement of ADR 35/00) from a distance of 40 m from the
intersection (as estimated by the driver), then the speed of the
Kenworth immediately prior to braking would have been about 71 km/h to
75 km/h. Even if the driver of the Kenworth underestimated the
braking distance and it was in fact 60 m rather than 40 m, the
pre-braking speed would then have been about 85 km/h to 88 km/h. Both
of these sets of results are broadly consistent with the statement of
the driver of the truck following the Kenworth.
If, on the other hand, the 90 m skid marks recorded by police several
weeks after the crash were in fact made by the Kenworth and the truck
braked at 0.43 g, and the skid marks terminated at the point of impact
(the worst case scenario), then the pre-braking speed of the Kenworth
would have been about 102 km/h to 105 km/h. If the skid marks
terminated beyond the impact point, the pre-braking speed would have
been lower (for example, pre-impact skid lengths of 80 m would have
indicated a pre-braking speed of 97 to 100 km/h, all other factors
being equal).
However, given that the police did not record full details of the
crash at the time of initial investigation (including the decision not
to take photographs; the lack of measurements and locating of any skid
marks; the lack of any testing of the Kenworth brake performance), it
is extremely difficult to determine precisely which of the scenarios
is correct. However, the witness statements are internally consistent
with the calculations for braking from 40 m from the impact, while the
data put forward for an alternative point of braking are suspect and
incomplete.

45. In his evidence, assuming a skid mark left by the trailer over a distance of 93 metres, and a range of deceleration rates, he calculated the initial speed of the defendant's vehicle as from 89.7 to 99.7 km/h (Exhibit 8).

46. However, it is clear that calculations based on the length of the skid marks can not be relied upon, because of Mr Benson's evidence that part of the skid marks were made by his vehicle. There is not enough in the evidence to show how much of the 93 metres is made up of the defendant's skid and how much is Mr Benson's.

47. The sketch plan of the accident scene was made by Constable Mackey at the direction of Constable Mullins. Constable Mullins observed, but did not measure, the skid marks. Constable Mackey was not called to give evidence. Constable Mullins did not examine Mr Benson's vehicle. The question was put to him in cross examination, and he did not answer it directly, but I am satisfied that he did nothing at the scene to determine whether or not such skid marks as were observable were made by either the defendant's vehicle or Mr Benson's vehicle or both.

48. I am therefore less inclined to rely in this case on any of the expert's opinions than on the direct observations of Mr Benson. There was no reason that I could see to doubt his evidence in any way. I am satisfied on the basis of his evidence that the defendant was travelling at about 80 km/h as he approached the intersection.

49. I am not persuaded that to do so was to travel at an excessive speed.

50. It is clear from the plaintiff's own evidence that the course his vehicle took was such as to make it appear to the defendant that he, the plaintiff, was about to do what any sensible driver would do, namely wait just a few seconds for the trucks to pass before making the right hand turn across their path. There was no evidence of any behaviour on his part that should have alerted the defendant to the possibility that the plaintiff might turn across his path when he was too close to avoid a collision.

51. I think that the inference that I draw, namely that when the plaintiff did make the turn, the defendant was then travelling at 80 km/h and was at such a distance that it was impossible for him to stop in time to avoid a collision, is not only consistent with the observations of Mr Benson, but also with the calculations made by Mr Vaughan.

52. It follows that the defendant did not fail to take reasonable care for the safety of the plaintiff. I regret that I am forced to the conclusion that the plaintiff, and the plaintiff alone, was responsible for the collision.

53. I direct the entry of judgment for the defendant. I order the plaintiff to pay the defendant's costs.