Wiseman v State Government Insurance Commission & Anor [2001] NSWSC 42

New South Wales Supreme Court

CITATION : Wiseman v State Government Insurance Commission & Anor [2001] NSWSC 42 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20189 of 1997 HEARING DATE(S) : 30 - 31 January 2001, 1 - 2 February 2001 JUDGMENT DATE : 9 February 2001

Janet Aileen Wiseman (Plaintiff) PARTIES : v State Government Insurance Commission (First Defendant) Maurice Campara (Second Defendant) JUDGMENT OF : Master Malpass

Mr D Cassidy QC/Mr B Ralston (Plaintiff) COUNSEL : Mr A C A Bridge SC/S Thode (First and Second Defendants) SOLICITORS : Forshaws Neill (Plaintiff) Hunt & Hunt (First and Second Defendants) CATCHWORDS : motor accident in Western Australia - claim for damages - law of Western Australia applied - no question of principle. LEGISLATION CITED : Motor Vehicle (Third Party Insurance) Act 1943. Supreme Court Rules 1970 Pt 33 r 8A. CASES CITED : N/A DECISION : See Paragraphs 36, 39, 50 - 53.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 9 FEBRUARY 2001

20189 of 1997 JANET AILEEN WISEMAN v STATE GOVERNMENT INSURANCE COMMISSION & ANOR JUDGMENT 1 In these proceedings, the plaintiff claims damages. The claim is founded on negligence. It arises out of a motor vehicle accident that took place on the Kwinana Freeway in the State of Western Australia. 2 There are two defendants. Both defendants have the same legal representation. The first defendant is the insurer of the Nominal Defendant. The second defendant was the driver of the vehicle in which the plaintiff was a passenger at the time of the accident. From the evidence, it seems that he has had a long standing relationship with the plaintiff (the nature of which was left unexplained until some brief evidence was elicited in cross-examination towards the end of the plaintiff's case). In that evidence he was described currently as being a friend. 3 The accident took place at about 7.00pm on 4 April 1994. Although it was still light, the street lights had been put on. The plaintiff was travelling as a front seat passenger in her own vehicle and this vehicle may have had its headlights on. She was wearing a seat belt. 4 At the scene of the accident, the freeway had three northbound lanes and three southbound lanes. The traffic was heavy. The plaintiff's vehicle was travelling in the centre lane of three northbound lanes. The plaintiff said that it was travelling at about the speed limit (90 - 100 kph). On the inside lane, there was a station wagon with a trailer (which has been described as a "box trailer"). On the trailer, was a crate. The station wagon was travelling at a faster speed and had overtaken the plaintiff's vehicle. In the outer of the three lanes, there was a Mercedes. 5 The crate bounced off the back of the trailer. In her oral evidence, the plaintiff said that "It spun over and then went down and slid into the front of our car". The second defendant had applied the brakes. He applied the brakes hard, then eased off a bit and then applied them again. Ultimately, the speed of the vehicle was reduced to about 20 to 30 kph at the time of the collision. 6 The plaintiff gave this evidence:- "Q. And what did you feel as the vehicle in which you were braked and hit the crate? A. When he first braked, went forward and hit, the belt clicked or something in the back, and hit and stayed up against the seat and then he braked again, you could feel the jolt. Q. And you could feel that in your body? A. Yes. Q. What about when it hit the crate? A. Yes, we just went forward again and banged back, hit my head on the head rest part of it. I had a nasty headache from that as well. Q. Did you feel anything else at that point? A. Yes, I did feel like a pain, burning pain, that went from about my waist down the back of me, like a stinging, burning pain." 7 She gave this further evidence: "Q. And that had the effect of giving nowhere for Maurice to go, but the fact of the matter is that he was in the middle lane and he stayed in the middle lane up until the time he came to a stop? A. Yes, he did not go into another lane. Q. There was nothing wrong with the brakes of your car? A. No. Q. And he was able to stop in a straight line, was he not? A. Like, he veered a little bit, swung a bit, that type of thing. Q. The path of your car, from the time the box came off the trailer, was basically straight forward, remaining in the middle lane the whole time, was it not? A. It was so fast, I couldn't say it was overlapped on the lane or anything. I know we had been hit. Q. And when the car actually stopped, it was pointing straight up the lane, as it were? A. No, slightly to an angle, not completely straight. Q. Very slightly? A. Yes." 8 For completeness, it needs to be observed that the plaintiff has given many histories of and concerning the accident. The histories are redolent with inconsistency and discrepancy. 9 Following the collision, both the station wagon and the Mercedes came to a stop. In addition, it seems that another vehicle (a sedan) may have also stopped. 10 After alighting from his vehicle, the driver of the station wagon then returned to it and left the scene. His departure was observed and his vehicle was the subject of a short and unsuccessful pursuit by the driver of the Mercedes. The driver of the Mercedes then returned to the scene of the accident and gave a business card to the plaintiff. This card later came into the possession of the second defendant. 11 The plaintiff did not observe the registration numbers of either the station wagon or its trailer. She saw nothing on the crate which gave indication as to its ownership. It seems that she may not have alighted from her vehicle whilst at the scene of the accident. 12 The plaintiff says that her vehicle was damaged. Her observations as to the extent of this damage were made subsequent to the day of the accident. She has given oral evidence as to damage affecting various parts of the vehicle (including the front guard, headlight, the grille and the bonnet). She has given oral evidence as to the costs of the repair being in excess of $1,500. There is little documentation to assist as to the nature of the damage. There is little documentation concerning the cost of the repair work. The vehicle remained drivable. However, the plaintiff has said that it was "kind of driveable". It could be driven slowly and awkwardly. This evidence did not sit comfortably with evidence given by one of her daughters. It was driven to Subiaco. It seems that it was driveable following some movement to a mudguard. The crate was damaged but not shattered. It was at least empty in part. 13 The accident was not reported to the police. It has not been suggested that the second defendant suffered any injury. The plaintiff did not receive any legal advice until 1995. This advice was given by her present solicitor. 14 After the commencement of the hearing, there was an admission of breach of duty made on behalf of both defendants. This left the questions of causation, due search and inquiry and quantum in issue. At the conclusion of the evidence, the plaintiff conceded that a case had not been made out against the second defendant. By consent, the claim against the second defendant was dismissed. The first defendant then abandoned the issue of due search and inquiry. 15 The plaintiff has given oral evidence. Three of her daughters (Karen Anne Rea, Christine Wiseman and Sandra Lee Platts) have also given oral evidence. The plaintiff's mother (Mrs Ley) was also called. A traffic injury consultant with medical qualifications (Dr Henderson) has prepared two reports for the defendants. He was called. He gave supplementary oral evidence and was cross-examined. The second defendant did not give evidence and that matter did not excite any submissions. 16 The parties have tendered a significant volume of documentary material (including reports from experts). The quantity of medical evidence tendered by the plaintiff is formidable. 17 This is a case in which credibility has assumed importance. The acceptance of the plaintiff's oral evidence (and that of other members of her family) is of importance to her case. I have closely observed the demeanour of witnesses during the giving of evidence. In assessing credibility, I have had regard to both demeanour and evidence. 18 Generally speaking, the evidence relied on by the plaintiff has its limitations. There were no independent lay witnesses. She looks to family members to support her case. The family appeared to be very close and I gained the impression that members were keen to do their best to assist the plaintiff's case. She was not an impressive witness and she has given evidence that I do not accept. At times, her evidence tended to be vague and give less than the full picture. At times, she was prone to embellishment. At times, her evidence was unhelpful. There is an absence of records or other documentation to support such evidence as she has given. 19 The plaintiff has given evidence which stands in conflict with documentation (inter alia Exhibits 1 - 3) and evidence from members of her family. Evidence given by family members in support of her claim also conflicts with documentation. If this oral evidence were to be accepted, it could lead to findings that she had given deliberately false information for the purposes of obtaining sickness benefits. If such findings had been made, I would have had little option but to send the papers to the Prothonotary for reference to the appropriate authorities for further action. Where there is conflict between this oral evidence and that documentation I prefer what appears in the documentation. 20 The plaintiff was born on 24 November 1942 (she was 51 at the time of the accident). She left school at the age of fifteen (before completing her Intermediate). Thereafter, largely, she did some part time or casual work. Her evidence on those matters was lacking in detail. She has been in receipt of a pension (probably sickness benefits or a disability pension or the like) since the early 1980's. During that time, she has not prepared a tax return. She has been involved in a number of motor vehicle accidents (one history records nine accidents) and other incidents. The evidence suggests an accident prone life. The first accident took place in about the late 1950's (and she suffered inter alia a compound fracture of her tibia). It seems to have been a serious accident. 21 In 1960, she was married. There were four children of that marriage. All of the children are daughters and are now adults. Her husband left shortly after the birth of the fourth child. The plaintiff managed to support the children. The evidence reveals that she has worked as a sales assistant, at the Royal Easter Show, the Fisher's Ghost Steakhouse and in 1989 was also involved in a venture with her daughter and her husband at Leppington. This venture folded after about 10 months. It has been said that it was associated with a caravan park and the caravan park changed hands and closed down. Thereafter, she did not work prior to going to Western Australia. 22 In 1992, she went to Western Australia. In September 1993, she acquired what has been referred to as a florist business at the Rockingham Hospital. Save for a couple of months, she engaged in this activity until the accident. Some time after the accident, it came to an end and it seems that it was disposed of at a loss. The reasons for its demise are somewhat unclear. 23 Prior to the accident, she had suffered a variety of medical problems (she has had bladder operations and a hysterectomy and she has suffered from haemorrhoids, irritable bowel syndrome, stress and asthma). Her asthma has persisted and seems to be a serious problem. The problems have led to periods of hospitalisation and the taking of medication. The disentangling of her many problems, accidents and incidents, is not without its difficulties. 24 In addition, it is conceded that at the time of the accident she had a back problem which rendered her susceptible to the injury which she claims was suffered as a result of the accident (a lower back problem). This problem has been described as a generalised degeneration of the spine. It seems that she also had lumbar stenosis at the L4/5 level. It is accepted that there needs to be a discount if she is successful in her claim, because her present condition would not have been suffered but for the pre-existing condition. 25 In 1998, she suffered injury to her cervical spine when she was hit by a shopping trolley. It is conceded that this injury cannot be sheeted home to either of the first or second defendants. It has been the subject of another claim which has now been settled. 26 After the accident the plaintiff said that she was "very upset and shaking and crying" and getting "shaky and trembling". She said that she thought that it was just shock. She was taken to the home of the second defendant and spent the rest of the week at his place and took medication (panadol). She said that she was upset and had headache and shaking. She said that she had pain in the back and legs. She did not keep an appointment had with Dr Nicholas on 5 April 1994. An explanation has been offered for that conduct. She returned to her home on the weekend. She said that she was experiencing discomfort in her back and legs. She did not seek medical treatment until 18 April 1994, when she went to see a general practitioner (Dr Nicholas). She saw him for review concerning her asthma and she also complained of pain in her right L5/S1 facet joints. He referred her for X-rays of her lumbar spine. These showed degenerative changes in the L4/5 and L5/S1 facet joints. She underwent a facet joint injection L4/5. She made no further attendance upon Dr Nicholas. Dr Nicholas has no record of being informed that she had been involved in a motor vehicle accident. 27 Between July and August 1994, she said that she "was starting to get a little bit uncomfortable again". There were problems with asthma and emphysema about this time. 28 In August 1994, she returned by car to New South Wales. She said that she experienced discomfort during the trip (inter alia they would have to stop and she would have "a little walk around or say no more to-day"). Initially she went to Coff's Harbour (where she was treated inter alia for asthma and leg problems). She had a CT scan and an ultrasound examination. There seems to have been a concern about a thrombosis in the right leg. Later, she was referred (by her general practitioner, Dr Yap) to Dr Salmon (an expert in pain management). She came under the care of the late Dr Segalov (and later Dr McDowell). Neither were originally given a history of the motor vehicle accident. She has undergone surgery (including 4 laminectomies, fusion of L4/5 and an anterior microdectomy and fusion). She has had physiotherapy and hydrotherapy. 29 Apart from the short period spent in Coff's Harbour with one of her daughters, she has lived in a house provided by the Housing Commission at Villawood. The evidence is that she lives alone and that she has a need for care. It is a small house. She is capable of attending to personal care and can provide some services for herself (including some cooking services). She need assistance in inter alia cleaning, shopping and lawn mowing. She had assistance from inter alia Home Care, her daughters and friends and a man does the lawn mowing. She still has her car, but has not driven it since 1999. She commenced to use a wheel chair in 1999. For some time previously she had used a walking stick. 30 Karen Anne Rea gave evidence of two conversations had with her mother following the accident. It is her evidence that during these conversations she was informed of the accident and that her mother had not been feeling well since the accident. Her problems were described as pain in her legs and headaches. 31 Curiously, it was not until about June of 1995, that any medical report records a history of the accident. Whilst the plaintiff maintains that she told at least some of the doctors of the incident, it seems unlikely that all of the pre June 1995 doctors would have made the error of not referring to what would seem to be a very important piece of history in their respective reports. 32 In an Amended Statement of Particulars pursuant to Part 33 Rule 8A of the Supreme Court Rules 1970 filed on 30 September 1999, the plaintiff gave the following particulars of the injuries that she claims were suffered in the accident:- " A PARTICULARS OF INJURIES a. Injury to lower back. b. Possible crush fractures of lumbar vertebrae. c. Spinal canal stenosis. d. Posterior and lateral disc bulging at L3 to L4. e. Marked posterior and lateral annular disc bulging at L4 to L5. f. Severe facet joint hypertrophic change. g. Bony canal stenosis at the invertebral disc level. h. L4 and L5 nerve root irritation. i. Subluxation of L4 on L5 secondary to facet joint degenerative change. j. L5 to S1 posterior disc bulging with facet joint degenerative change. k. injury to neck. l. Precipitation of asthma attack. m. Shock and sequalae (sic)."