Daniel Moore was at a function at the local Clubhouse of his football team. He went from there to a hotel and then decided with his colleagues to go a local nightclub on Logan Road, Underwood.
After arriving there, the cover charge was such that they decided to not to go in. Whilst there a maxi-taxi driven by the Defendant arrived and unloaded certain people to attend the nightclub. The Plaintiff and the others went to the Defendant and asked if he could take them to the city. The driver declined and then continued along the service road before doing a U-turn to drive back towards the nightclub. The Plaintiff apparently approached the road, observed by the Defendant driver, and stood out a few steps onto the road to wave him down. On the evidence of his companions he was waving his arms with a fist full of money to show that he had the funds to pay for the ride. A collision occurred.
The cab driver admitted that he had no job at the time and in fact, was simply proceeding to the local taxi rank. He could not offer any evidence as to why he declined the fare. In fact, he said there was no animosity between him and the Plaintiff and his friends.
His Honour Judge McGill SC held that the Defendant driver of the cab was negligent in that he failed to observe the Plaintiff move onto the road and said that his evidence was that he only observed the pedestrian at the last instant before he ran into him. That is, he was not keeping a proper lookout.
His Honour also found that Section 47 of the Civil Liability Act 2003 (Qld) had no application in that the Plaintiff’s intoxication was not relevant to the breach of duty of failing to keep a proper lookout. However, at Common Law he believed the Plaintiff failed to take reasonable care for his own safety and to that end, was guilty of contributory negligence.
The practical affect of his intoxication was that it probably prevented the Plaintiff from realising in a timely manner that the Defendant was not slowing down and it would be a good idea to get off the roadway and out of the path of the vehicle.
His Honour said it was a balancing thing between the duties of the driver of the vehicle to that of the Plaintiff. The driver should have appreciated there was a distinct possibility that someone on the footpath would come out onto the road to attempt to hail the cab driver. The cab driver admitted that there were persons in and around the nightclub and frequently people hailed for lifts. He also acknowledged that he was aware that the Plaintiff and his friends wanted to use the vehicle for a lift, so to that end, the driver failed to keep the group of potential hailers under observation. The Defendant had not realised the Plaintiff had in fact stood in the road and was waving him down and it was too late to take effectively evasive action.
The Plaintiff was found contributory negligent to the extent of 20%.
There was a contest between the effect of the Plaintiff’s cognitive head injuries from the collision. Dr Chalk saw the Plaintiff on 1 September 2005 and found that there was no permanent impairment using the PIRS assessment. In fact, prior to that he admitted himself to the PA Hospital on 9 October 2005 when he attempted to take his life by hitting his head with a pool cue and stabbing his forearm with the kitchen knife. At that time, on his discharge on 13 October 2005 he noted that there was a two year history of gambling dysthymia, poor impulse control and it was worse over the last 10 months since the loss of consciousness from the motor vehicle accident with symptoms of paranoia. Also, the Plaintiff was admitted to the Acute Adult Psychiatric Unit from 9 to 13 December 2005.
Dr David Thiele assessed a 4% impairment as a result of the scar to the head.
The Plaintiff called evidence from a Mr Stevenson who saw the Plaintiff in September 2008, a Psychologist, but no PIRS is given in this decision as to his findings.
The Plaintiff’s employment history was poor and in fact no tax returns had been lodged and his employment as a casual food process plant worker was very irregular. There was only two weeks when he worked full time for the period 15 November 2004 through to the accident.
His Honour was troubled by the lack of evidence as to what was his employment pre accident and also post accident.
He assessed for general damages an ISV that took into account the moderate mental disorder, the minor scar and the minor head injury. He acknowledged that where there was physical trauma causing scarring, the individual item allows for the scarring and it is not to be assessed independently pursuant to item 155. He assessed general damages at an ISV of 10.
For past economic loss he noted his employment history was so poor that the determination would simply loss of earnings of two months per annum being eight weeks at $550.00 net per week. It was assessed at $28,600.00.
Loss of earnings into the future given his 35 year working life was again assessed consistent with the past but discounted by 40% for vicissitudes at $45,000.00.
No superannuation was allowed past and future on the basis of the allowance for past economic loss.
The cab driver may feel hard done by the small finding for contributory negligence. However, one must consider the lack of explanation by the cab driver why he refused the fare, and his conduct post accident of travelling some 150 metres from the scene.
The Defendant did not have a prior fare commitment and offered no word of explanation as to why he refused the cab fare. Had he decided to take the fare the accident could simply have been avoided in the first place.