Kalsbeek v Williams [2001] ACTSC 5 (2 February 2001)

Last Updated: 11 June 2002

John William Kalsbeek v Jamie David Williams [2001] ACTSC 5 (2 February 2001)

CATCHWORDS

DAMAGES - Assessment - Personal Injury - Motor vehicle accident - Negligence - No issues of principle.

Motor Accidents Act 1988

Fry v McCufficke [1998] 1499 FCA

Griffiths v Kerkemeyer (1977) 193 CLR 161

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, (2000) 172 ALR 625

No. SC 571 of 1999

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 2 February 2001

IN THE SUPREME COURT OF THE )

) No. SC 571 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JOHN WILLIAM KALSBEEK

Plaintiff

AND: JAMIE DAVID WILLIAMS

Defendant

ORDER

Coram: Master T. Connolly

Date: 2 February 2001

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the defendant.

2. The plaintiff to pay the defendant's costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 2 April 1999, which was the Good Friday of an Easter holiday weekend on a country road near a popular camping spot on the Wollondilly River in the Southern Highlands region of New South Wales. A collision occurred between the motor cycle ridden by the plaintiff and the four wheel drive vehicle driven by the defendant. Liability was strongly in issue, as was contributory negligence. As the accident occurred in New South Wales, it was common ground that if liability was established, damages would be assessed pursuant to the relevant New South Wales legislation in accordance with the principles of John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, (2000) 172 ALR 625.

2. There were sharply differing versions of the circumstances of the accident given by the plaintiff and by the defendant and other witnesses who supported the defendant's version. On the plaintiff's version of events he was descending the hill slowly and on the correct side of the road when the defendant came around a blind corner on the wrong side of the road and struck him. On this version the defendant would be liable. On the defendant's version of events he was proceeding slowly up the hill on the correct side of the road when the plaintiff came around a blind corner on the incorrect side of the road, in effect cutting the corner. On this version the accident was the plaintiff's fault, and the defendant would not be liable.

3. The plaintiff was born in 1961, and at the time of the accident was a steel fixer doing contract work for a swimming pool supplier. On the Easter weekend of 1999 he joined a number of friends and family on a camping trip in the Wombeyan Caves area for a camping and trail bike riding weekend. The plaintiff did not have a motor cycle riders license, but gave evidence that he had been riding recreational bikes for many years, and understood, incorrectly as it turned out, that the road on which the accident occurred was a private road. No issue was made by the defendant of the plaintiff's unlicensed riding, and I accept that he was indeed an experienced and competent motor cyclist.

4. He said that he left the campsite with a group of friends for a ride up the mountain road, but that the motorcycle he had borrowed was playing up with apparent carburettor problems and consequent loss of power. He says that he decided he could not keep up with the group, and decided to return by himself to the campsite. He was wearing a helmet and appropriate safety gear. He says that as he was returning to camp he was only doing between 10 and 15 kilometres an hour because the bike would not go faster. He says that he had noticed that there was a fair bit of traffic about, it being the long weekend, and he was aware that he was approaching a blind corner. He said,

"I knew traffic was coming, and with the problem with the bike, I was sort of hanging right over to the side as much as I could. Got to the corner, and next thing you know, there's a great big four wheel drive there, and he got me."

5. The plaintiff maintained that he was over as far as he could be on the left hand side of the roadway, "without getting into all the loose rubbish". He said that the roadway at that point was about a car and a half wide, and the four wheel drive, when he first saw it, was, "probably towards the middle of the road". He says that he braked, and then, "realised that it was no good, so I tried to accelerate off again, and tried to scoot around the side of him". He said the four wheel drive was still moving, but he could not estimate the speed, and says that he, "clipped his roo bar with my leg", and then came off the bike.

6. The plaintiff in his evidence maintained that the defendant was in the middle of the road. Three previous versions of the plaintiff's statements were tendered as evidence in this case. The plaintiff was spoken to in Bowral Hospital by a Constable Rhodes, and the handwritten notes from the constables notebook was put into evidence by the defendant, as well as what was agreed to be a legible translation of that entry put into evidence by the plaintiff. In that statement Mr Kalsbeek is recorded as saying,

"I was basically coming around a blind corner about 10 kph and there was a 4 wheel drive in the middle of the road."

7. This is consistent with his evidence in court. It was put to him by Constable Rhodes that, "At the time of the collision your bike was on the wrong side of the road" and his reply is recorded as,

"He clipped me on the right side, on the driver side of his vehicle/bullbar. The road is no wider than a single car. For two cars to pass one has to pull right over."

8. The defendant points out that the plaintiff did not deny the allegations of being on the wrong side of the road in this interview.

9. There is also a police report compiled by Constable Cole. In this report, tendered by the defendant, it is stated:

"About 4.40 pm on Friday 2^nd April 1999 the driver of vehicle 1 was spoken to at the Bowral Hospital. Kalsbeek states that he was travelling at about 15 kph in an easterly direction along what he believed was a private roadway. He slowed to negotiate a sharp bend in the roadway and when half way around the bend he saw vehicle 2 coming the opposite way. The rider of vehicle 1 then applied the brakes and due to the surface of the roadway, damp dirt, and the narrowness of the roadway, he has slid sideways into the front portion of vehicle 2."

10. The defendant points out that in this version there is no claim that the defendant's vehicle is in the incorrect side of the roadway.

11. A further statement was taken from the plaintiff by Constable Goodyer on 25 August 1999. In that statement Constable Goodyer records the plaintiff as saying:

"I remember the motor cycle I was riding that day was breaking down so I was coming back to the camp. I couldn't do any more than about 10 km/h, there was a problem with the motor. I was coming down a hill on a very narrow winding road. The road wound down a hill onto a hairpin bend. A four wheel drive was coming in the opposite direction and we collided right on the point of the corner. That's all I can remember about the accident. I don't know how fast the other guy was going."

12. The defendant points out that in this version no claim is made that the defendant was on the wrong side of the road or the middle of the road.

13. In cross examination the plaintiff was shown a photograph, which was later tendered as exhibit 1, which he agreed showed the bend as he would have seen it approaching and going down the hill. It was, from his perspective, a right hand curve. He was asked to mark the point of the impact with a cross. He did so, and then later changed his mind and marked another point. He was asked to mark these two with marks 1 and 2. It is apparent from exhibit 1 that the first point he marked, being the x marked 1, is situated beyond the mid point in the road, and would, if it was indeed the point of impact on his version of events, have meant that the defendant was fully within his side of the road at the point of impact, and that the plaintiff was well over to his incorrect side of the road at and before the point of impact. On the second version of the collision point, marked on exhibit 1 as x2, the impact occurred just to the plaintiff's correct side of the road. On this version, however, it is apparent that there is still a substantial area of roadway which should have allowed the plaintiff to safely pass by the defendant, assuming that on this version x2 marks the right hand extreme of the defendant's vehicle, which is where the plaintiff says he was clipped. The plaintiff says that this happened as he was trying to get around the defendant, which would seem to indicate, from exhibit 1, that the plaintiff must have been further to the right, or towards his incorrect side of the road, before the impact.

14. The plaintiff said that the point x2 on exhibit 1 represented the furthest point that he could safely drive towards the left hand side of the roadway. I am not satisfied, from an examination of the photograph, that this is so.

15. The defendant gave evidence of his version of events. He was also on a camping holiday in the area, and he had a passenger with him, Mr Warren Carter. Another vehicle was accompanying him, driven by Mr Steven Brown, who was accompanied by his partner, Ms Tracey Hurrell. The four friends from the Wollongong area were travelling together, and had left home that morning. He says that they stopped at the same camping area where the plaintiff was camping, and then proceeded up the hill. He says that as he was going up the hill he was generally travelling at 20 kilometres an hour. As he approached the accident site it represented a sharp left hand bend from his perspective. He said that as he approached the corner he noticed a motorbike rider heading in the opposite direction about 10 to 15 metres on the other side of the apex of the corner, and at that point he says the motor bike was on the correct left hand side of the road but moving to cut the corner. He says that he then braked and brought his four wheel drive to a stop. He said he stopped because, "I noticed that the bike was cutting the corner and was coming across my path." He said that the bike, "tried to go around me", and then, "slid sideways into the front of my car". He says that the bike hit the front of his stationary car in a sideways motion, with the centre of the bike being at about the driver's side corner of the front of his car.

16. Mr Williams said the roadway was about 5 metres wide at the point of impact, and that his vehicle was as close as it could be to the left hand side, being about 2 foot from the left hand side of the embankment. He was shown a photograph, being photo 4 in exhibit 2, which represented the accident site as he saw it, being a left hand bend, and asked to mark with an x the point of the impact, which he did. It is apparent that this mark is very close to the original mark, being x1, on exhibit 1, which is consistent with the plaintiff being on the incorrect side of the road.

17. The photographs were taken by an investigator, Mr Robert Gresham, in November 1999. He also said that he measured the roadway in the area, and that it was between 2.4 metres and 5.8 metres wide.

18. Mr Williams has always maintained that Mr Kalsbeek was on the incorrect side of the road, and this is the version recorded in the accident report of Constable Cole.

19. Mr Carter, who was the front seat passenger in Mr Williams' vehicle, gave evidence of his version of events. He said that Mr Williams was driving at about 20 km/h and no more than 25 km/h as they approached the bend, and that when he first noticed the motorbike it was directly in front of him about 9 to 10 metres away, that is, on the motorbike's wrong side of the road. He says that Mr Williams was as far to the correct side of the road as he could safely be, and that he brought the four wheel drive to a stop. He says that,

"I saw the bike coming towards us, next minute the bike started swerving and the back end going out of control, then he slid side on, that's when we hit him."

20. He says that the four wheel drive was stationary at the point of impact, and the bike hit the side on the front of the bullbar, pointing towards the bikes correct side of the road.

21. Mr Steven Brown was driving the vehicle behind the defendant, and he gave evidence. He says he was about a car length behind, proceeding at 20 km/h. He says that he saw the defendant's vehicle, which was hard to the left hand side of the road, put on its brake lights as it was approaching a bend, and he saw the vehicle stop. He stopped behind, and got out of his car, and noticed that there was a motorbike, "under the front drivers side corner of Mr Williams' car." Mr Brown denied in cross examination that Mr Williams' car was towards the centre of the road, and that there was insufficient room for a motorbike to pass. Mr Brown said that he later drove Mr Kalsbeek to a bush fire station, from where medical help was summonsed, and that there was a conversation in which Mr Kalsbeek acknowledged that he had seen the four wheel drive approach, and said, "this kind of thing has happened before."

22. A statement was also tendered from Ms Tracey Horrell, who was Mr Brown's passenger. She is pregnant, and her doctors advised against her giving evidence, and no objection was taken to the tender of her statement. The only significant part of the statement is that she says that,

"Jamie (the defendant) was as close to the wall on his left hand side as it was safe to drive. I consider he was on his correct side of the road."

23. Taking all of the evidence into account, I prefer the consistent version of events given by the defendant and those other witnesses (Mr Carter, Mr Brown and the statement of Ms Horrell) who supported him. The version of events that has the defendant on his correct side of the road and stationary at the point of impact has been consistent with earlier statements. The dynamics they describe of the bike attempting to cut the corner, and then trying to avoid the collision by sliding out of control into the front of the four wheel drive, is cogent, and the point of impact described by Mr Williams matches the original point marked by the plaintiff, before he corrected himself and placed a mark on the other side of the road in the photo in exhibit 1. The defendant Williams, and the witnesses Carter and Brown impressed me as giving truthful evidence, which is consistent with each other, and with the earlier version in the police report. A criticism was made that Mr Williams said he first saw the motor bike on its correct side of the road some distance away when Mr Carter says he first saw the bike only some 9-10 metres away and on its incorrect side of the road, but this seems to me consistent with a driver keeping closer attention on the road ahead than the passenger, who sees the bike only at a later time when it is in the process of cutting the corner, having moved away from its previous correct side of the road.

24. The plaintiff's version of events is in direct contrast to the defendant's version, and lacks the corroboration of those witnesses that support the defendant. The assertion that the four wheel drive was in the middle of the road was made in the original statement to Constable Rhodes, but does not appear in the versions of Constable Coles and Constable Goodyer. In the Rhodes interview, when it was directly put to the plaintiff that he was on the wrong side of the road, he did not contradict this, but I acknowledge that this statement was taken when the plaintiff was in hospital on the afternoon of the accident, and was no doubt in considerable distress, and perhaps affected by medication. When he spoke to Constable Goodyer, however, he did not assert that he was on the correct side of the road, and the defendant on the incorrect side. I note also that, when he was first asked in cross examination to mark a photograph with the position of the accident, he made the first mark at a point which is inconsistent with his version but consistent with the defendant's version.

25. On all of the evidence, I find that the defendant was proceeding up the hill driving slowly and as far to his left as possible when he observed the plaintiff approaching. I find that he observed the plaintiff attempting to cut the corner, and brought his vehicle to a halt. I observe that his description of driving slowly and stopping is consistent with Mr Brown being able to safely bring his vehicle to a halt travelling about one car length behind. I find that the plaintiff became aware of the approach of the defendant and realising that he was on the wrong side of the road attempted to manoeuvre his bike to avoid the impact, but had insufficient time and lost control of the bike, sliding sideways into the front of their stationary four wheel drive.

26. On the facts as I have found them to be, I find no breach of duty of care on the part of the defendant, as he was driving at a safe speed on his correct side of the road, and was able to bring his vehicle to a halt before it was struck by an out of control motor bike on the wrong side of the road. There is nothing I find that the defendant could have done to avoid the collision, and it is appropriate that I enter judgement for the defendant.

27. Although contributory negligence was pleaded, counsel for the defendant submitted, in my view correctly, that this is really a case where there are two directly inconsistent versions of the facts surrounding an accident, and that if I was satisfied on the balance of probabilities as to either of these versions, the result would be a finding of liability either way. On the defendant's version, which I have found on the balance of probabilities to have been correct, the defendant was driving slowly on his correct side of the road and was able to stop his vehicle before he was struck by the plaintiff on an out of control motor bike which was cutting a corner and was on the incorrect side of the road before and at the point of impact. On the plaintiffs' version he was travelling at a safe speed on his correct side of the road, and on a corner was struck by the defendant who was travelling on the incorrect side of the road. If this version had been established to my satisfaction on the balance of probabilities, it seems to me that the proper outcome would be a finding of liability against the defendant, and on this version I do not see how a finding of contributory negligence could be made against the plaintiff, who was on his correct side of the road and travelling slowly.

28. Although I have found that the defendant was not negligent, it is nevertheless appropriate to proceed to an assessment of damages which I would have awarded if liability had been established. There was no dispute on the medical evidence, and no medical evidence was tendered on the defendant's behalf. In the accident the plaintiff suffered a loss of consciousness and a fracture of his right leg at the tibia and fibula. Some first aid was able to be administered by a nurse who was at the camp site, and the plaintiff was able to be transported, by Mr Brown, to a nearby Country Fire Service station, from where he was taken by ambulance to Bowral Hospital. He was admitted as an in-patient and a local orthopaedic surgeon, Dr Leicester, operated, placing two rods into his leg to fix the fracture and allow union to occur. In a report of 11 June 1999 he said,

"Mr Kalsbeek was admitted under my care to Bowral & District Hospital as an emergency on 2 April 1999. He gave a history of being hit by a four wheel drive whilst riding his motorbike. He suffered a fracture of his right tibia and fibula. There was a reduced sensation in the S1 distribution pre-operatively. He was treated with internal fixation using an intramedullary locked nail. There were no post-operative complications noted. He had a small amount of discharge from a puncture wound anteriorly and this was treated with oral antibiotics. My last review of Mr Kalsbeek was on 5 May 1999. At that stage he was making good progress but I asked to review him in 10 weeks with an x ray to assess union of the fracture."

29. In a later report of 15 July 1999 he noted that the plaintiff was doing well with good union, and he was able to then weight bear with a walking stick.

30. Immediately after the operation Mr Kalsbeek needed extensive care and assistance from friends and family, as he was quite immobile, but it was acknowledged by his counsel that, this did not extend for a long period, and so did not meet the threshold for the award of Griffiths v Kerkemeyer damages pursuant to s 72 (2)(b) of the Motor Accidents Act 1988.

31. The plaintiff came under the care of Dr Stubbs, a Canberra orthopaedic surgeon, in late 1999. He noted in a report of 11 November 1999 that the fracture was uniting well, but that it was too early to remove the nail, and that the plaintiff was having knee pain due to the nail. On a review on 8 February 2000 Dr Stubbs felt that,

"His fractured tibia and fibula have healed without any apparent complication other than anterior knee pain which at this stage I suppose comes from the nail."

32. He booked the plaintiff in for surgery on 18 February to have the nail and screws removed, although this did not proceed as liability was in dispute and the insurer was not prepared to meet the cost as a private patient. Eventually a procedure was performed by Dr Stubbs on 1 May 2000 at Canberra Hospital, but unfortunately upon opening the plaintiff's leg Dr Stubbs discovered that the nail was not of the type he expected, and the instruments available did not fit the screws and nail to allow its safe removal. A further procedure was performed on 26 June 2000, and Dr Stubbs reported,

"Mr Kalsbeek came into hospital about a month ago to have this nail removed but we found that although this is a Synthes nail it differs in details and design from those stocked in the hospitals and the introducer/extractor is not common to the two types of nails. With the appropriate equipment obtained from Mathys, the patient was brought back to theatre. Under general anesthsia the parapatellar wound was made and the nail extracted in a retrograde fashion. The skin is enclosed with Ethibond and the patient will be reviewed at the registrar clinic in a weeks time."

33. An arthroscopy of his knee revealed no difficulties, although the plaintiff continued to experience discomfort due in Dr Stubbs' opinion to the effects of the nail. In his last report of 29 November 2000 Dr Stubbs noted,

"It is eighteen months since the accident happened and he has returned to his normal employment as a steel fixer in the last six to eight weeks. Prior to that time he was unemployed. Although he is back at his usual employment he is not managing with his usual facility, specifically he has problems kneeling and squatting with tenderness in the scar from where the nail was inserted, general hypersensitivity to touch along the line of the fracture and painful crepitus in the right kneecap....Mr Kalsbeek's complaints are reasonable at this stage. Discomfort in the kneecap often relates to inactivity and muscle wasting and takes some time to recover. With intermedullary nailing of the tibia there is also the potential that kneecap function will be disturbed by introducing and removing the nail."

34. I am satisfied that as a consequence of this accident the plaintiff suffered a broken leg and a period of unconsciousness. He was operated on, under general anaesthetic, at the Bowral Hospital, and the fracture was set with a nail and screws. The bones have united well, but he was considerably disabled for a period. Unfortunately, when the first attempt was made to remove the nail, under general anaesthetic, it was found that the tools at Canberra Hospital did not match the nail. Extraordinary as this may seem, it meant that a further procedure had to be undertaken, again under general anaesthetic, to remove the nail, which has occurred successfully. I am satisfied from the medical evidence of Dr Stubbs that the plaintiff has made as good a recovery as could be expected, but he says that he still has residual knee problems, which Dr Stubbs says may persist for some time, but should improve.

35. As the plaintiff was injured in an accident in New South Wales, an assessment of damages would proceed under the Motor Accidents Act 1988. In respect of damages for non-economic loss, I am satisfied, and it was not submitted to the contrary, that the plaintiff would successfully overcome the barrier in s 79A(4), in that the severity exceeds 15% of a most extreme case. Counsel for the plaintiff submitted that the loss should fall in the range of 25% to 33%, while counsel for the defendant submitted that the loss should be assessed at between 20% and 25%. Taking all of the evidence into account, and noting that although the fracture has healed well there was a need for two procedures to remove the nail, I would assess the plaintiff's injuries at 28% of a most serious case, resulting in damages for non economic loss under the Act of $40,000.

36. Out of pocket expenses were agreed arithmetically at $8,292.60, which I would award for the past. Dr Stubbs indicated that some further strengthening work may be appropriate, as well as reviews, and it seems to me that the claimed buffer of $2,500 for future out of pocket expenses would be reasonable in all of the circumstances.

37. An award under the principles of Griffiths v Kerkemeyer (1977) 193 CLR 161 was claimed on the basis of considerable assistance given to the plaintiff over the three months immediately after the accident when the plaintiff was largely immobile and lived with and depended on help from his sister. While I accept that this help was provided, and would sound in damages under the common law, it was conceded that under the Motor Accidents Act 1988 s 72 (2) (b) precluded any award in this case.

38. The plaintiff's economic loss claim was based on a total loss of his usual earnings for a period of 77 weeks from the date of the accident to the time he resumed work. I am satisfied that he was precluded from work for this period, and that he would be entitled to an award for past economic loss for 77 weeks. The evidence established a net income over the years immediately prior to the accident, and since his return to work, at about $560, which would amount to an award of $43,120 which generates interest under the Practice Direction of $3,981.

39. The plaintiff has resumed work and has engaged in supervising concrete fixers in a family company. He gave evidence that he is still not as agile as he was before the accident, and this is consistent with Dr Stubbs' report. He has also taken up a new line of work as a floor installer, which seems to be appropriate. I am satisfied that he is able to engage in a full range of activities, although there will, on the medical evidence, be a period when he continues to experience knee pain, and he may never recover his full strength and agility in the leg.

40. The wage and tax records tendered in the plaintiff's case showed that, in the ten weeks that he had been back in the workforce to the date of trial, he had in fact averaged a net wage slightly above his pre injury earnings, in the order of $600 per week. While the defendant submitted that this should satisfy me that there is no ongoing loss, I accept that he may never retain his full pre injury strength in his leg. However, he has been able to return to a supervisory role as a concrete fixer, in a family company, and it seems that he would, with his experience, have been likely to move in this direction in any event. He has also found an alternative line of work as a floor installer. I would nonetheless accept that the plaintiff has sustained a permanent loss of physical capacity which should sound in damages as a buffer and, taking into account what the Full Court of the Federal Court said in Fry v McCufficke [1998] 1499 FCA, award a buffer in the sum of $30,000, being about one years present earnings to reflect his permanent loss of full agility and strength in his right leg.

41. This would have amounted to an award of $127,893.60 had liability been established.

42. As I have found that there is no liability there should be judgment for the defendant, with costs.

I certify that the preceding forty one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 2 February 2001

Counsel for the Plaintiff: Mr Lunney

Solicitor for the Plaintiff: Higgins Solicitors

Counsel for the Defendant: Mr Ringrose

Solicitor for the Defendant: Hunt & Hunt

Date of hearing: 6 & 7 December 2000

Date of judgment: 2 February 2001