Foster v Claybourn’s Discount Tiles P/L & Anor [2010] QDC 290


Personal injuries suffered by plaintiff in motor vehicle accident – defendants’ approaching vehicle moved to its incorrect side of road – defendants denied liability on basis that cause of accident was their driver’s suffering a temporal lobe seizure, a diagnosis made months afterwards – whether negligence of driver shown – whether “wrongful act or omission” shown – evidence showed driver retained some degree of control of vehicle.


Both liability and quantum were in issue. The plaintiff sustained her injuries by way of a head-on motor vehicle collision, in circumstances where it was alleged the defendant had suffered some form of seizure approximately 70 seconds before the collision. The quantum was clouded by the plaintiff’s previous motor vehicle accident some 3 months earlier and pre-existing depression, together with being an unimpressive witness. The plaintiff’s dominant injury was her psychiatric condition.

Robin QC DCJ

[9] The ordinary approach to circumstances like the present appears in a property damage case, Carty v Parnell and Anor (Executors) [1992] QCA 112, where the Court of Appeal said: “It was common ground that the collision occurred on the plaintiffs’ correct side of the road and that, shortly prior to the collision, when the vehicles were separated by some 40 metres or so, the deceased’s vehicle veered on to its incorrect side of the road and into collision with the semi-trailer. In the absence of further evidence, the only reasonable inference was that the veering movement was negligent and was the sole cause of the collision. The defendants did not assert that the plaintiffs’ driver was negligent. However, they alleged that the collision and its consequences “were caused by the effects of a medical condition … which suddenly and without warning afflicted the said William John Parnell as he was driving the said Toyota sedan along the Bruce Highway towards the oncoming prime mover and trailer which condition either killed the said William John Parnell then and there or so completely deprived him of the ability to properly manage and control the said Toyota sedan that he could not prevent or avoid the said collision.” That medical condition, which was not particularised in the defence, was later particularised as “the sudden rupturing of the aorta and/or blacking out and/or cramp”. There was a conflict in medical testimony as to whether the aorta, which had certainly been ruptured by the time of post-mortem upon the deceased, was ruptured before the collision or in it. The trial judge, as he was entitled to, accepted the medical testimony which favoured the view that the aorta was ruptured in the collision. The defendants did not contest his Honour’s conclusion in this respect on appeal.

However, Mrs Parnell, the wife of the deceased, who was a passenger in the Toyota sedan at the time of the collision, gave evidence that just before the accident, the deceased turned his head left and uttered a sound which she could best describe as a groan. He had made a similar sound, she said, on a previous occasion two or three years before when his arm had pins and needles. From that, and apparently nothing more, his Honour inferred that ‘the better view of her evidence is that it demonstrates that he was in a state of unawareness or of loss of consciousness, in either event, short of death.’’ We find it impossible to see how His Honour could have drawn that inference from that evidence. His Honour’s conclusion that the deceased was in a state of unawareness or loss of consciousness is unsupported by any medical evidence or by any observable state from which a reasonable layman could infer that a person was unconscious. The highest the medical evidence went in this respect was, as His Honour recognised, that the deceased suffered from a heart condition or a partial obstruction of the vertebra-basilar arteries as a consequence of cervical spondylosis either of which could have produced giddiness, confusion, disorientation or loss of consciousness. This fell far short of establishing loss of consciousness on this occasion as anything higher than a mere possibility. His Honour seemed to recognise this and to think that this was sufficient to negative negligence because he said “that the plaintiff had to positively demonstrate negligence and to that extent exclude the possible consequences of such conditions”. The plaintiffs carried no such heavy burden. It was sufficient for them to establish, on the balance of probabilities, that the inference of negligence should be drawn. In order to negative that inference, there would need to be some other inference, inconsistent with it and equally probable. Mere hypothesis based on speculation is not enough. In the absence of such competing inference the plaintiffs were entitled to judgment”.

[10] The cases are legion in which liability is established against a defendant driver whose vehicle veers to the wrong side of the road resulting in personal injury or property damage. The ordinary conclusion is that the movement of the vehicle bespeaks negligence: other explanations offered rarely avail the defendant. I am not satisfied that under the Act negligence need be shown; keeping one’s vehicle on its correct side of the road when there is approaching traffic is baseic to how one is expected to drive; defendants’ causing or allowing the vehicle to move as it did is a “wrongful act or omission” within the ordinary meaning of that term. The width of such an expression is indicated in some relatively venerable decisions digested in Words and Phrases Legally Defined (Butterworths) (2nd):


“Section 66 [of the Merchant Shipping Act 1906] clearly contemplates findings of default against persons who are not certified officers, and the power to impose the penalties mentioned on those who are affords no sound ground for restricting the expression ‘wrongful act or default’ to conduct which ought to be punished. The ordinary, natural meaning of the words holds nothing to suggest such a limited interpretation. In my opinion neither the

policy nor the text of the legislation calls for any modification of that meaning and I therefore conclude that the proper connotation of ‘wrongful act or default’ is a breach of legal duty of any degree which causes or contributes to the casualty under investigation.” The Princess Victoria, [1954] N. I. 178, per Lord MacDermott, LC.J., at p. 178.

“The language of the statute … is large enough to embrace death arising from either type of default. In Doe d. Dacre v. Dacre [(1798), I B. & P. 250], at p. 258, Eyre, C.J., said: ‘I do not know a larger or looser word than “default” …. In its largest and most general sense it seems to mean, failing.’ It is a relative term and takes its colour from the context .… ‘Default’ means not doing something which you ought to do, having regard to the relations which you occupy towards the other persons interested in the transaction.” Ibid., per Rich, J., at p. 620. Australia. – “In my opinion, the language or the Act [i.e. Lord Campbell’s Act] is capable of being applied to the case of death resulting from breach of contract. The words are very general. ‘Wrongful act’ is a term which in a perfectly natural meaning can be applied to breaches of contract as well as to torts.” Woolworths, Ltd. v. Crotty (1942), 66 C.L.R. 603, per Latham, C.J., at p. 619.”

[11] On this basis, I would hold the defendant liable. I am in no doubt whatever that community expectations would be that the plaintiff ought to have redress under the Compulsory Third Party insurance arrangements in respect of injury caused by the way in which the defendants’ vehicle was managed. Mr Sewell’s submissions assert that if the defendant were to prevail, his client, on the basis of his researches, would be “the first plaintiff in the published history of Australian law to be denied a remedy in analogous circumstances.”

[15] From a policy standpoint, the outcome is unsurprising. That the CTP regime has led to a jurisprudence which demands an extremely high level of performance from drivers was noted by Kirby J in Imbree v McNeilly (2008) 248 ALR 647 at [165] ff and in Carrier v Bonham [2000] QDC 226 at [73] ff.1 It may be unsurprising that similar policy considerations might operate to protect drivers such as Ms Lafranchi if their conduct is not morally blameworthy, sparing them financial ruin if they have to meet an injured plaintiff’s claim and costs. I do not read the reasons in Lafranchi as an indication that a Ms Thomson in that matter should have been left without any useful remedy.

[16] The courts have been tough on defendant drivers suffering a “sudden and unheralded incapacitating event”: in Dowsing v Goodwin [1997] NSWCA 95 one reads at page 3:

“Negligence law in Australia remains wedded to the fault principle and the requirement that the plaintiff bears the onus of proof. A plea of inevitable accident is simply a denial of negligence. (Jockel v Jockel [1963] SR (NSW) 230 at 233.) A sudden and unheralded incapacitating event, such as a bee sting or a stroke, may preclude a finding of negligence where the driver had insufficient time to avert the ensuing accident. (Billy Higgs & Sons v Baddeley [1950] NZLR 605; Robinson v Glover [1952] NZLR 659); Waugh v James Allen Ltd [1964] 2 Lloyd’s Rep 1. Since the duty is to take reasonable care, it follows that (in Lord Blackburn’s words) “when a man is suddenly and without warning thrown into a critical position, due allowance should be made for this, but not too much.” “Not too much” because the reasonable driver is aware of the potential risk of the activity and may be expected to drive “defensively” in the sense of making some allowance for dangerous situations not flowing directly from his or her own neglect (Stoeckel v Harpas (1971) 1 SASR 172n). Thus, even when the driver is subject to a sudden and unavoidable onset of pain or other disabling factor, he or she will be expected to exercise reasonable care by slowing down or pulling over to the side of the road if such a reaction to the emergency is possible (Roberts v Ramsbottom [1980] 1 WLR 823 at 832; Leahy v Beaumont (1981) 27 SASR 290). A driver cannot take refuge in the fact that he or she was unconscious at the moment of impact if that dangerous situation was the product of lack of reasonable care. (Cf Jimenez v The Queen (1992) 173 CLR.) Even if the state of unconsciousness comes upon the driver unawares, there may still be liability if the driver should not have allowed himself or herself to be behind the wheel at the time.”

The plaintiff succeeded against an insulin dependent diabetic taken to have suffered a hypoglycaemic attack. In Roberts v Ramsbottom [1980] 1 All ER 7, a clouding of consciousness falling short of automatism did not avail the driver who “retained some control, albeit imperfect” – alternatively because he had “continued to drive when he was unfit to do so”. That the defendants’ vehicle here was observed to move to its incorrect side of the road after its motion had attracted attention as odd (specifically, because of inexplicably low speed) and then return to its correct side of the road before again veering right into the plaintiff’s path strongly suggests (as Dr Weidmann appreciated) at least a modicum of control. Drivers who continued driving for a couple of blocks (K & S Freighters Pty Ltd v Nelmeer Hoteliers Pty Ltd (2001) 33 MVR 467) and for as little as 80 metres (Leahy v Beaumont (1981) 27 SASR 290) have been held liable, on the basis of negligence.

[22] There was no diagnosis for the brain tumour until February 2007. Dr Weidmann confirmed that in a person Mr Claybourn’s age the kind of tumour he had develops extremely quickly. What was seen on the scan of 13 December 2006 could have been the result of the head injury which Mr Claybourn suffered causing bleeding, to the distress of the plaintiff and Ms Ogilvy, and maybe others. There was a clear CT scan taken after the accident. The objective evidence does not support a finding of a tumour on 1 December 2006.

[23] Further, the evidence does support that Mr Claybourn, whatever his medical condition, should be found to have been able to exercise at least a modicum of control of his vehicle. He did not exercise it to the appropriate standard. Dr Weidmann’s evidence in the circumstances does not provide a foundation for the court to take seriously the notion that the late Mr. Claybourn was without capacity to control the vehicle he was driving or the time of the accident.

[24] The plaintiff establishes liability.


[25] She faces serious problems in my view in establishing the quantum of damages which the defendant insurer should pay at the levels contended for by Mr Sewell. It is accepted that the plaintiff suffered post traumatic stress disorder in consequence of the collision. This is unsurprising, given that it was her second head-on collision (as a person innocently involved) within three months. There is an issue as to how much of her psychological symptoms is attributable to each of the incidents. She told the defendant’s psychiatrist, Dr Chalk, that she recovered $33,000 in respect of the September 2006 event (getting to enjoy only $12,000!); Dr Chalk attributes one third of the responsibility for the plaintiff’s current condition to the earlier incident; Dr Warlow preferred to rely on the rule of thumb applied where one cannot be sure, of allocating 10 percent to the first incident. I found Dr Chalk’s view persuasive here. He is more hopeful of therapy proving efficacious in assisting the plaintiff to deal with her psychological difficulties than is Dr Warlow, also estimates that rather fewer hours of contact with a psychiatrist and/or psychologist would be necessary.

[29] With a small number of interruptions, the plaintiff has maintained full time work. She is now comfortably settled, it seems, working for a national company with some 420 warehouse/retail outlets. At hers, she is the only female employee; her fellow workers insist on doing any heavy work, even without any request from her. She says herself she is a perfectionist anxious to perform at a high level and loath to show or even disclose any limitations. If I understood her right, she keeps employers in ignorance of the limitations she believes she has. She has been taken interstate at least once by her current employer for training. Upon the evidence, she still is a high achiever at work, albeit not earning what she did as a night manager.

[30] The plaintiff was an unimpressive witness, typically guarded and trying to anticipate where Mr Green was going with his questions and head him off, so to speak. Although the evidence about this is thin, I do not accept that, even in her own thinking, it was consequences of the accident which drove her from the night manager position. It may simply have been that night work proved uncongenial, at least in part.

[31] Her GP records contain precious little of complaints about accident related injuries, although scattered throughout are isolated references to shoulders, feet and back. The plaintiff asserted that she tells the professional people she sees what she believes they need to know, rather than giving a full account of her history and situation. It seems that she may have attended a GP practice whose records were not before the court at some stage. In the circumstances, and in the absence of any clear assertion by the plaintiff that she made complaints in that quarter, I would conclude that nothing in any missing records would help her situation.

[32] It is clear that for years before either of the collisions, she suffered depression, for which she received medication. That recourse to medication came about, it was said, because of adverse reaction to methods of contraception that were tried and because of weight problems. I am not prepared to proceed on the basis that all such difficulties were in the past by 1 December 2006.

[35] There is no point in attempting quantification of gratuitous services in this case, since there can be no doubt that such services as satisfied paragraphs (a) and (b) of s 59(1) of the Civil Liability Act 2003 cannot possibly have reached the joint hurdles of six hours per week and that applying “for at least six months” in paragraph (c).

[37] In assessing damages under the Civil Liability Act 2003 and the Civil Liability Regulation 2003, assistance is available from Clark v Hall [2006] QSC 274.

[39] I am not persuaded that any increase of scale amounts is called for by reason of the paragraph 78 matters here. The plaintiff was born on 16 September 1982. Any “uplift” in respect of “myriad physical injuries” (none of which have persisted in my view after the first months) would have to be modest.

[40] In my opinion Mr Green in his submissions on quantum has been realistic and relatively generous. General damages ought to be assessed on the basis suggested by him at $11,000 on the basis of an ISV of 10…

[41] I agree with Mr Green’s submissions that past economic loss ought to be assessed on a global basis in the amount of $10,000, to which I would add $900 for superannuation (inclusive of interest) and future economic loss on a global basis (inclusive of superannuation) at $40,000 (Cook v Bowen [2007] QDC 108).

[42] Doing the best I can in respect of future expenses for therapy, I come down at the mid-point between the psychiatrists and allow $6,400. A further $1,500 can be allowed on top of that for future medication. There is an agreed figure for past out-of- pocket expenses of $1,500 (I infer this latter figure includes provision for interest).

[43] The plaintiff’s damages are assessed at $71,300.





PRS 5-6%

 1/3 to previous MVA

Dr Chalk preferred to Dr Warlow

Some ancillary soft tissue injury to cervical spine and shoulder, but not dominant

Item 12

ISV 10-


No uplift Night manager at   Big W Past -$10,000 global,

plus $900 for supa

Future -$40,000 applying Cook v Bowen inclusive of supa

Brisbane Barrister – David Cormack

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