Leemhuis v Wilk [2002] ACTSC 34 (3 May 2002)

Last Updated: 9 May 2002

David Leemhuis v Monica Wilk [2002] ACTSC 34 (3 May 2002)

CATCHWORDS

MOTOR VEHICLE ACCIDENT - liability - head on collision - defendant fails to observe oncoming vehicle.

MOTOR VEHICLE ACCIDENT - Contributory negligence - plaintiff veers to centre of roadway in knowledge of oncoming vehicle.

PERSONAL INJURY - damages - aggravation of pre-existing degenerative condition - no issue of principle.

Evidence Act 1995 (Cth), s. 34

Ramsay v Watson (1960) 108 CLR 462

No. SC 112 of 1997

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 3 May 2002

IN THE SUPREME COURT OF THE )

) No. SC 112 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DAVID LEEMHUIS

Plaintiff

AND: MONICA WILK

Defendant

ORDER

Coram: Master T. Connolly

Date: 3 May 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff in the sum of $500.00

2. The parties will be heard as to costs

1. This is a claim for damages for personal injuries arising from a motor vehicle accident that occurred in Amugula Avenue Ngunnawal in the Australian Capital Territory on the afternoon of 6 June 1994. The collision was a head on collision on a suburban street. The plaintiff was driving in a southerly direction, and moved, on his case, towards the centre of the road to get past some parked cars. The defendant was driving in a northerly direction. Liability was strongly in issue. The plaintiff claims as a result of the accident to have aggravated a pre existing cervical disc condition, and to have sustained soft tissue injuries. He claims that his accident related injuries prevent him from pursuing his occupation as a builder, and makes a substantial claim for damages for economic loss, which was also contested.

Liability

2. The plaintiff says that on 6 June 1994 he went to Ngunnawal, which was then a very new area of development in Canberra, to look at blocks of land for possible building projects. He had collected his young son from school, and after inspecting some blocks was leaving the suburb. He says that he was driving in a southerly direction along Amagula Avenue, at a speed of about 40 to 45 kilometres an hour. He says that he noticed, near the intersection with Gula Place, a number of vehicles parked in his lane against the kerb. He says that he indicated to move out in order to pass these vehicles. He says that he believed that his wheels were then on the centre line. He says that he observed another vehicle about 50 metres ahead coming towards him. The road, from his perspective, was downhill and veering to the left. He says that he continued to observe the vehicle, which seemed to be cutting across the bend. He says that he braked, but the other vehicle continued towards him, and struck his vehicle. He says that he observed that the driver of the other vehicle seemed to be looking to her left. He says that after the collision he remonstrated with the other driver, and she said "I am sorry I was looking at the people working and machinery on the other side of the road."

3. In a motor vehicle accident insurance claim form filled in the next day the plaintiff said that the accident occurred in the following circumstances: "Passing cars parked on my left when the other car hit front right hand side. Other driver was busy looking to the left."

4. In a police accident report filed on the day of the accident by Senior Constable Watson, the accident is described (with the plaintiff as V2 and the defendant as V1) as follows:

" V2 pulled onto wrong side of (road) to pass parked trucks. V1 did not see V2 due to the sun on her windscreen."

5. The defendant said that she was driving north along Amagula Avenue returning to her nearby home on the afternoon of 6 June. She says that she was doing about 40 kilometres an hour. She said "I can't have been going very fast because of traffic and houses that were being built."

6. She could not remember whether the road had a centre line. She could not remember whether there were any parked vehicles. She could not remember whether there was a bend in the road. She was asked what was the first thing she noticed before the accident, and said "That suddenly it was in front of me on my side of the road." She says that after the accident the other driver got very worked up and "The only thing I could say to him was sorry."

7. In cross-examination the defendant maintained that the plaintiff "suddenly" appeared in front of her. She was asked how far in front of her he was when she first saw him, and said "I don't remember exactly. He seemed to come out in front of me and we ran into each other." She denied that she was looking at building works or was blinded by the sun, and said that she was looking ahead at the road at all times. She was asked how, if she was looking ahead at all times she didn't see the plaintiff in time to avoid a collision, and said "I can only say that I was going along on my side of the road, this man appeared in front of me and we ran into each other. I can't say any more than that."

8. It seems to me that, on the basis of the evidence of the plaintiff and the defendant, I must find that the defendant was in breach of her duty of care, in that she says that she had no knowledge of the presence of an approaching vehicle until it "suddenly appeared" in front of her. Cars do not appear out of thin air, and I am satisfied that a motorist proceeding in the direction of the defendant would have seen the plaintiff approaching had they been properly observant. Amagula Avenue is a normal residential street, and in such a street parked vehicles will make it necessary for vehicles to move to, or in some cases over, the centre line in order to proceed. Motorists in such streets need to be observant.

9. If the defendant's evidence had been that she had seen the approaching plaintiff who then suddenly veered out from behind parked cars, which seemed to be the case that was being put to the plaintiff in cross examination, liability would be problematic. But her evidence is that she does not remember any parked cars. I am satisfied that there were parked cars, from the evidence of the plaintiff and the police report. Where there are parked cars on a narrow suburban street, motorists need to exercise care, and be mindful of approaching vehicles. The defendant's evidence is that she had no knowledge of an approaching vehicle until it was "suddenly" in front of her. It seems to me that it must follow from this that the defendant was in breach of her primary duty to exercise due care and attention, and I find that liability has been established.

10. I note that the accident report states that the defendant was dazzled by the glare of the sun. Senior Constable Watson gave evidence that the information in that form could only have come from the parties. I note also that the accident report has "glare or dazzle" marked at the visibility restrictions section, and again it seems to me that this information could only have come from the parties. Senior Constable Watson, who was called for the defendant, said that that information came from the defendant. As the plaintiff has consistently said that he thinks the defendant was looking the other way (as opposed to being dazzled by glare), it seems to me that this information must have come from the defendant.

11. Contributory negligence was pleaded by the defendant against the plaintiff. The plaintiff was on his evidence aware that the defendant was proceeding towards him. He was aware that there were parked cars in his path, and that to proceed he would have to veer to the right. His evidence, which is uncontradicted, is that he applied his indicators, and I accept this evidence. Nevertheless, he knew as he veered out that the defendant was approaching.

12. He says that he observed that the defendant was not looking ahead, and was herself veering across, in his evidence "cutting the corner." The defendant says she was going straight ahead and cannot recall whether the road was curved. The parties invited me to undertake a view, and it is clear, both from the view and from photographs tendered in the plaintiff's case, that there was a bend in the roadway in the vicinity of the accident as described by the plaintiff. The view, which is evidence (Evidence Act 1995 (Cth), s. 34) merely confirms the evidence in the photographs, and I draw no other inferences from the view.

13. It seems to me that, just as I have found that the defendant was negligent in not observing the plaintiff, I should also find that the plaintiff's conduct in veering towards the centre of the road when he was aware of an approaching vehicle amounts to contributory negligence. In the context of a narrow suburban street where clear passage is blocked by parked vehicles, indicating to pull out in the presence of an oncoming vehicle does not, it seems to me, discharge the onus to look out for one's own safety. The approaching vehicle may, as has happened here on the plaintiff's case, not observe the vehicle pulling out. The safer course would be to allow the approaching vehicle with the clear lane to proceed before pulling out of the lane that is blocked by the parked vehicle.

14. The plaintiff maintained in his evidence that at the point of the impact his front wheels were just on the centre lane. It seems to me at the end of the day to not matter whether he was right on the centre, or just over into the wrong side of the road, as is the case put against him by the defendant. Senior Constable Watson who attended the scene said that it would not have been possible for the plaintiff to have passed the parked vehicles and stayed within his carriage way. On the balance of probabilities I am satisfied that the plaintiff did move slightly over the centre line of the road in order to get past the parked vehicles.

15. In either event on his own case he pulled out from the normal driving position as close as possible to the left hand curb in order to get past parked cars, when he knew that another vehicle was approaching in a clear lane. It seems to me that this amounts to contributory negligence, and I so find. In accordance with the apportionment legislation I will now turn to an assessment of damages before attributing responsibility between the plaintiff and the defendant.

Damages

16. The plaintiff's claim is that as a consequence of this motor vehicle accident he has sustained significant injuries to his back which preclude him from continuing in his occupation as a builder. He acknowledges that he had a long prior history of neck pain which had resulted in him coming to spinal fusion surgery some 5 weeks before the accident. It is his case that the accident has significantly aggravated his pre existing condition.

17. The plaintiff was born in 1964 and educated in Canberra to completion of Year 10 in 1981. He undertook an apprenticeship under the supervision of his father's company, A.P. Leemhuis Builders in carpentry, which also involved study at the Bruce College of Technical and Further Education. He obtained his trade certificate as a carpenter and joiner in 1986, and commenced full time employment in the family firm. He obtained a C class builders licence in 1987 after a years full time work.

18. At that time his work involved trade work as a carpenter and joiner as well as supervisory and organisational tasks. He said that at around this time he started to have a problem with headaches. His long time general practitioner, Dr Bobba, summarised his prior history in a report of September 1996 as follows:

"Mr Leemhuis has been suffering with headaches, occipital region and neck pain since 1990 with neck spasm. He saw neurologist, Dr Danta, who thought it could be migraines but migraine treatment has not helped. Later in 1993 he saw Dr Andrews, another Neurologist, who did a CT Scan of cervical spine which showed posterior disc herniation at C4-5, central posterior disc herniation at C5-6. He had facet joint blocks which has not helped his pain. Later he saw Dr Chandran who did anterior spinal fusion at C4-5 on the 26^th April 1994."

19. The plaintiff's case is that this was a successful procedure and that after the operation he was much better. His general practitioner notes show that he reported progress, but that on 22 May 1994 he required a pethedine injection for neck pain.

20. Mr Leemhuis saw the surgeon, Dr Chandran, for review on the morning of the motor vehicle accident. His report to the general practitioner says that:

"He seems to be progressing quite well and very pleased with the symptomatic relief obtained so far regarding his neck pain, headaches and pain in the arms. I have advised a review in 2 months with x rays."

21. The plaintiff says that after the accident he experienced neck pain and he went to see his general practitioner. This is confirmed by Dr Bobba's notes. He saw Dr Chandran for review on 29 July 1994. Dr Chandran's report makes no reference to the motor vehicle accident, and states

"He says he is considerably better but will not go back to work for another month or so until the neck fully settles He may then start light work and then increase his level of involvement. On the whole he has had less headaches and the neck is more comfortable. The x rays show satisfactory progression of fusion."

22. There is no mention in Dr Chandran's report of the motor vehicle accident. The plaintiff continued to see his general practitioner through the second half of 1994 complaining of neck and back pain. On his review by Dr Chandran in December 1994 Dr Chandran noted that he was worried about the plaintiff's use of Physeptone, which is a methadone based narcotic analgesic. He recommended to his general practitioner that Mr Leemhuis be taken off the Physeptone and placed on Pandeine Forte. Dr Chandran, who still did not have a history of the motor vehicle accident, said in his 19 December 1994 report to Dr Bobba

"The symptoms in my view have steadily deteriorated particularly since he has been doing some amount of work building his home."

23. The plaintiff was also in receipt of treatment from Dr Lithgow, a pain management specialist, both before and after the motor vehicle accident. In December 1993 he took a history of a six or seven year history of intermittent episodes of left sided neck pain, with headache and pain in the left scapular, shoulder and arm. In respect of treatment, Dr Lithgow took a history of the plaintiff taking "Mersyndol forte when necessary and requires an injection of Pethedine for relief once or twice each month." Dr Lithgow next saw him in October 1994, and took a history of the fusion, noting that the plaintiff felt this was "worthwhile", and says that he continues to complain of left upper cervical pain. He recommended further facet block injections. He took no history of the motor vehicle accident. In a further report of July 1995 to his general practitioner Dr Lithgow noted some improvement following occipital nerve blocks by Dr Lance, and expressed concern at his use of pethedine. He recommended a pain management course.

24. In a report of June 1996 to Dr Bobba, Dr Lithgow noted a recent increase in symptoms, and took a history that

the latest episode of increased pain could not be related to any particular incident however he reported that he works part time on building sites and is quite active without doing any heavy lifting."

Dr Lithgow again expressed reservations at the ongoing levels of narcotic based analgesia.

25. I find it significant that neither Dr Chandran nor Dr Lithgow, who were the plaintiff's treating specialists before and after the motor vehicle accident, took a history of the motor vehicle accident and any impact it has had on the plaintiff's levels of pain. Dr Champion, who reported for the plaintiff, has commented in his report of 7 September 1999 that Dr Chandran's absence of any history of a motor vehicle accident

"represents a potential problem from the medico-legal view point in assessing the effect and consequences of the motor vehicle accident."

26. The defendant tendered a letter from Dr Chandran to the plaintiff's solicitor of 19 November 1996 in which the doctor, in effect, refused to vary his earlier opinions. He stated that his earlier reports were based on a history from the plaintiff and his records. Dr Chandran was not called to give oral evidence. I accept that he did not take any history of a connection between the motor vehicle accident and any increase in neck pain. He was at the time the treating surgeon. Dr Chandran had written to Dr Bobba on 27 May 1996 which is the first reference from Dr Chandran to the motor vehicle accident. He reports that Mr Leemuis complained on 23 May 1996 of neck and shoulder pain and says

"all this became bad recently but then there had been an aggravation according to him in the motor vehicle accident that occurred five weeks after his cervical fusion. He has now embarked on a third party claim and is trying to make a claim for all this from that injury. However, in the intervening period I am aware that he has worked, supervising as well as partaking in building his own house while on sickness benefits."

27. The defendant tendered a letter which the plaintiff says was written on his behalf by his wife to NRMA insurance on 1 December 1995. I understand that the letter was prompted by the plaintiff being advised by the insurer that Mrs Wilk, the defendant, had made a claim for personal injuries arising from the accident. In the letter Mr Leemhuis says

"If anyone should be claiming third party insurance for bodily injury as a result of this accident it should be myself. Prior to this accident (about 5 weeks) I undertook a major surgery in the neck as a result of degenerative discs in the base of the neck. I have been in constant review by the neurosurgeon and doctors and found the fusion to be well incorporated; overall I was improving by the 4^th week and never felt better, until this accident which caused endless pain in my neck and head from that same night of the accident."

The defendant put to the plaintiff that it was really the knowledge of a claim by the defendant that prompted him to link his ongoing problems to the motor vehicle accident, a claim denied by the plaintiff.

28. The defendant's case is summarised in the report of Dr Stubbs, orthopaedic surgeon, of 10 July 1997, who says

"I could find no evidenced that the road traffic accident that he has suffered has any role in the causation of his present problems. He has degenerative intervertebral disc disease in the neck and low back, but everything points to a constitutional predisposition to that, not the effects of injury. It would not seem from his behaviour after the accident occurred that any particular injury or pain was caused. If symptoms have since worsened then that is the natural progression of his degenerative disease, not the response of any injury suffered in the accident."

Dr Matheson, a consultant neurosurgeon, has provided a similar opinion.

29. The plaintiff's case is that the motor vehicle accident has aggravated an acknowledged underlying degenerative condition. Dr Champion, a consultant physician at St Vincent's Clinic, has provided an opinion in the plaintiffs case that the motor vehicle accident has contributed 50% of his ongoing spinal problems. Dr Newcombe, a Canberra neurosurgeon, has expressed a similar view.

30. Dr Brooder, a consultant neurologist, reported for the defendant in May 1997 that the plaintiff

"has a chronic cervical pain syndrome related to relatively severe, multi level degenerative cervical intervertebral disc disease. The motor vehicle accident on 6 June 1994 resulted in a significant aggravation of his pre existing condition and further induced a chronic pain syndrome associated with secondary muscle spasm."

31. It is a feature of those reports that implicate the motor vehicle accident that a history is taken of the presence of narcotic pain relief after, and as a consequence of, the motor vehicle accident. Dr Champion says

"Dr Bobba recorded that the neck pain became worse following the motor vehicle accident and this had led to the prescription of very strong narcotic pain killers whereas pre-accident, he had been on modest therapy with Mersymdol forte and anti inflammatory tablets."

32. This history is not consistent with Dr Lithgows report of December 1993 which refers to an injection of Pethedine for relief "once or twice each month." It is also inconsistent with Dr Bobba's clinical notes, which reveal that narcotic injections were utilised in late 1993. More significantly, it seems to me, is the reference on 22 May 1994 to the use of a pethedine injection. This was some two weeks before the motor vehicle accident. I am satisfied that the plaintiff had had recourse to narcotic pain relief before the motor vehicle accident, and to the extent that opinions from doctors take a contrary history, and attach significance to the introduction of narcotic pain relief only after the accident they are in error. (Ramsay v Watson (1960) 108 CLR 462)

33. Although the plaintiff's general practitioner, Dr Bobba, maintained that the motor vehicle accident was significant, the defendant pointed out in cross-examination that Dr Bobba did not refer to this in his referrals to treating specialists in the period during which Mr Leemhuis condition was being investigated from late 1994 by Dr Chandran, Dr Lithgow, Dr Brooks, and Dr Lance. Dr Bobba did not explain this, nor did he explain why, if it was his view, as he now maintains, that the motor vehicle accident was the cause of his ongoing problems, he did not draw this to the attention of the treating specialists. Dr Lance reported on his treatment to Dr Bobba on 1 May 1995, and took a history which said "I note he has had car accidents in the past, but no real injury to his head or neck."

34. Dr Bobba accepted that nowhere in his clinical notes does it record the plaintiff's symptoms being increased by reason of the motor vehicle accident.

35. At the end of the day and after consideration of all of the medical evidence I am not satisfied that the motor vehicle accident has had any significant impact on the plaintiff's present condition, which I find to be a generalised degenerative spinal condition, which had been present for many years before the accident, and which had lead to cervical fusion. I accept that he has come to greater use of narcotic pain relief in the period after the accident, but I find that he had had recourse to such medication before the accident. I am troubled by the lack of any history of a motor vehicle accident taken by Dr Chandran, the treating neurosurgeon who had performed the fusion, until after the NRMA advised the plaintiff of the defendants personal injury claim. I am troubled by the lack of mention of the motor vehicle accident to various treating specialists brought in by the general practitioner from mid 1994 to try to assist the plaintiff.

36. I am not satisfied on the balance of probabilities that the motor vehicle accident has caused any ongoing disabilities for the plaintiff beyond the normal and natural progression of his degenerative spinal condition. I am satisfied that the motor vehicle accident caused only a minor temporary aggravation of symptoms, that had settled by at least his next attendance on Dr Chandran when that doctor took a history of significant improvement and no complaint at all of aggravation of symptoms following a motor vehicle accident.

37. The extent to which the plaintiffs undoubted generalised degenerative spinal condition has lead to ongoing disability was strongly in issue in this case. Extensive video surveillance material was shown which demonstrated the plaintiff undertaking a wide range of activities on building sites, involving supervision as well as manual work. Mr Leemhuis had said in evidence in chief that he was significantly restricted in his head movements, demonstrating at pages 57 and 58 that he can move 45degrees to the right, 12 ½ degrees to the left and 10 degrees tilting backwards. I am satisfied that this was a considerable exaggeration, and that the film demonstrates no apparent restrictions. Mr Leemhuis in cross-examination maintained that he was restricted, but conceded that an observer wouldn't necessarily notice this. This is hard to reconcile with the claimed degree of restriction of movement.

38. Mr Leemhuis says that he has good days and bad days, and I accept that his generalised degenerative spinal condition would lead to ongoing pain and restrictions, but I am satisfied that there has been a degree of exaggeration of his symptoms, and I am satisfied that he has been able to undertake a range of building activities, including both supervisory and physical activities. I accept that there has been an increase in pain relief medication associated with periods of full time employment and I attribute this to the underlying disease. It must be recalled that, at the time of the accident, he was still not working following his fusion operation, and it was recommended that he not return to work for some time. Any inability to work due to these transitory injuries has occurred during a period when he was in any event precluded from working.

Damages

39. I have not been satisfied on the balance of probabilities that the motor vehicle accident caused any ongoing damage to the plaintiff beyond a temporary soft tissue type aggravation which had resolved by the time of his next attendance on Dr Chandran. This would sound in only a very modest award of general damages. As he was in any event precluded from working due to the fusion, I would not make any award in respect of economic loss. I would award only one attendance on his general practitioner in respect of the motor vehicle accident, being the attendance on the day of the accident. Dr Bobba agreed in cross-examination that he did not refer to the motor vehicle accident in his notes for subsequent visits, and I have found that all his references for treatment referred to the ongoing degenerative disease and the fusion procedure as the causes for the treatment and investigations.

40. It seems to me that an award of $1,500 would cover all of these matters.

Attribution

41. I have found that the defendant was negligent in not keeping a proper lookout. I have found that the plaintiff was himself negligent in moving out from behind the parked car in the knowledge that a vehicle was approaching. It seems to me that, as the plaintiff was making a manoeuvre that would involve his vehicle moving beyond the defined lane and encroaching on the lane of the approaching vehicle, the plaintiff should bear a greater proportion of liability. By moving out he would have forced the defendant, if she had been properly observing the conditions in the road ahead, to have slowed, stopped or swerved. His safer course would have been to have allowed the oncoming vehicle to pass before moving out. He moved out knowing that another vehicle was approaching, and presumably on the assumption that the other vehicle would see and avoid him. I would regard the plaintiff's responsibility as being two thirds and the defendant's responsibility as being one third.

42. This results in a judgment for the plaintiff in the sum of $500 only. I will hear the parties as to costs.

I certify that the preceding fourty two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 3 May 2002

Counsel for the Plaintiff: Mr S Tilmouth QC with Mr J Pappas

Solicitor for the Plaintiff: Ray Swift & Associates

Counsel for the Defendant: Mr D Wheelahan QC with Ms Fitzsimons

Solicitor for the Defendant: Phillips Fox

Date of hearing: 4, 5, 6, & 7 June 2001, 18, 19 & 20 February

2002

Date of judgment: 3 May 2002