Maria Tallarida v Colin Rainsford Perrin [1986] ACTSC 120 (19 December 1986)

SUPREME COURT OF THE ACT

MARIA TALLARIDA v. COLIN RAINSFORD PERRIN
S.C. No. 251 of 1985
Negligence - Contributory Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - plaintiff knocked down whilst crossing road - failure of driver to keep proper look out - excessive speed - no question of principle.

Contributory Negligence - plaintiff failed to observe oncoming traffic - apportionment - no question of principle.

Damages - laceration to scalp - fractures of left radius and ulna, and of pelvis - depression - scarring - no question of principle.

HEARING

CANBERRA
19:12:1986

ORDER

Interest be awarded to the plaintiff in the sum of $3,812.82

There be judgment for the plaintiff in the total sum of $34,653.06.

No interest to run on this if paid within 28 days.

There be judgment for the plaintiff in the sum of $30,840.24.

Liberty to the Parties to apply in respect of interest.

The defendant to pay the plaintiff's costs.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff on 19 April 1983 when she was struck by a car whilst crossing Jerrabomberra Avenue, Narrabundah. Jerrabomberra Avenue runs north and south and it intersects at right angles with Goyder Street just north of where the plaintiff was injured. Jerrabomberra Avenue is a major thoroughfare for traffic travelling south out of Canberra and there is a dual carriageway divided by a raised median strip with two traffic lanes for vehicles travelling in each direction.

2. On the morning in question, the plaintiff left her home in Goyder Street, east of Jerrabomberra Avenue, with the intention of walking to her place of employment. That was the Banjo Patterson Motor Inn, which is on the south-western corner of the intersection. She walked in a westerly direction towards the main road and when she was near the intersection she noticed a friend, Mrs. Masala, on the other side of Goyder Street. They exchanged greetings, the plaintiff turning left into Jerrabomberra Avenue with the intention of crossing it just south of Goyder Street and Mrs. Masala intending to cross Jerrabomberra Avenue more or less directly so that she could go to the bus stop in Goyder Street on the other side and west of Jerrabomberra Avenue. There is really very little dispute as to what happened then and it may be summarised by saying that the plaintiff commenced to cross Jerrabomberra Avenue but at an angle in more or less a south-westerly direction. As the plaintiff started to cross the road, the defendant was approaching from the north in his Ford motor vehicle having entered Jerrabomberra Avenue from Captain Cook Crescent on the west about 500 metres north of the Goyder Street intersection. The defendant's vehicle struck the plaintiff when she was in the lane further from the kerb and closer to the median strip. Skid marks observed and measured by a police officer after the collision with the plaintiff showed that the defendant's vehicle skidded about fourteen metres in the lane closer to the median strip. The collision carried the plaintiff on the bonnet of the defendant's vehicle some short distance until it came to a halt. At that stage the plaintiff slid off the bonnet onto the median strip but slightly in front of the vehicle.

3. The plaintiff said that before she started to cross the road she checked to see whether any vehicles were in the vicinity and that she saw none. Clearly, however, the defendant's vehicle would have been visible to her if she had made an adequate observation. Because of the angle at which she was crossing the road she deprived herself of the opportunity to observe traffic approaching from the north. She made no effort to check the position as she continued across the road and was entirely unaware of the approach of the defendant's vehicle until she heard the screech of brakes.

4. The defendant's evidence was that he first noticed the plaintiff when she was still on the eastern side of Jerrabomberra Avenue talking to her friend. His next observation was that the plaintiff left the kerb and moved to the centre of the eastern carriageway. He commenced to slow down when he was about one hundred metres and checked his rear vision mirror. Why he should have checked the rear vision mirror is not entirely clear. When he looked back to the roadway, the plaintiff appeared to wave him on. He again checked his rear vision mirror and when he looked back the plaintiff was running at an angle across the front of his vehicle. At that stage he said that he gave two long blasts on his horn and braked heavily. He said that after impact his vehicle moved only about three feet.

5. The defendant was quite unsure of his speed in evidence. In this respect, and others, his evidence contrasted with a statement he made to a police officer shortly after the incident. He told the police officer that he was travelling at about eighty kilometres per hour, and although he initially said that this was an estimate, he repeated that at the stage the plaintiff appeared to wave him on he was about forty feet from her and travelling at about eighty kilometres per hour. The defendant is an experienced driver. He proposed to be in Cooma for business purposes at about 9 a.m. that day. It is likely that he was travelling at about eighty kilometres per hour. The speed limit in the area was sixty kilometres per hour. A witness called by the defence, Mr. Max Hansen, was travelling behind the defendant's vehicle at a distance of some one hundred to two hundred metres. He stated that the defendant's vehicle could not have been travelling at a speed as high as eighty kilometres per hour because Mr. Hansen was not driving at such a high speed and he did not notice that the vehicle in front appeared to be travelling any faster. I do not accept this part of Mr. Hansen's evidence. I do not think that he was in a particularly advantageous position to assess the speed of the defendant's vehicle. Moreover his evidence was unsatisfactory in other estimates he made. For instance, he said that the plaintiff stood in the middle of the road for some three to four seconds, something which is in the face of what all the other witnesses said and which, in my view, was in the circumstances quite unlikely.

6. In his statement to the police, the defendant also said that when he braked heavily he looked into his mirrors to see where he could go, because he was under the impression that there was another vehicle on his left and so, he said, "I just skidded and I tried to go to the right of her". This account is consistent with that of Mr. Hansen just referred to who said that he saw a woman starting to cross the road and when she was about two thirds of the way across, the defendant's vehicle, which had been travelling in the lane closest to the median strip, started to move to the left. The woman then appeared to wave in front of herself and the defendant's vehicle moved back into the right lane.

7. Mr. Hansen also said that when the defendant's vehicle moved back into the lane closest to the median strip the woman appeared to try to run in front of that vehicle. This occurred when the defendant's vehicle was only about twenty metres from her. In this respect Mr. Hansen's evidence accords largely with that of Mr. Brian Meizer, another witness who was driving a truck in the opposite direction and on the north bound carriageway of Jerrabomberra Avenue. He saw a woman running across the road towards him at an angle. He also saw the defendant's vehicle approaching her and when it was about thirty to forty feet from her he saw its front dip down and noticed smoke coming from its tyres. It then went into a skid and hit the woman.

8. The plaintiff denied in her evidence that she began to run or that she did anything in the nature of waving to the defendant. She did say, however, that she dropped her bag and her left arm when she heard the screech of the brakes.

9. I think that the likely sequence of events in the light of the above is as follows. The plaintiff was undoubtedly crossing the road having failed to observe the defendant's vehicle approaching her. She was walking at an angle which precluded her from observing the approach of the defendant's vehicle. The defendant noticed her crossing the road when he was about a hundred metres from her, travelling at about eighty kilometres per hour. Although he began to slow down, presumably by simply taking his foot from the accelerator, he did nothing to substantially decrease the speed of his vehicle at that stage. When he was at the most about forty metres from the plaintiff he applied his brakes. That attracted the plaintiff's attention. She turned towards the defendant's vehicle and in a moment of panic or confusion moved her arms about. The movement of her arms led the defendant to believe in the crisis of the moment that she was indicating that he should pass in front of her. I am unable to accept that it was the plaintiff's intention to relay to the defendant the message that he should take that course. Furthermore, the defendant's misinterpretation of the plaintiff's action was contributed to by his mistaken belief that there was a vehicle to his left, the presence of which made it unsafe for him to avoid the plaintiff by swerving to the left.

10. It is the plaintiff who brings the action and the question of the defendant's negligence is to be resolved before turning to other issues. In my opinion, the defendant was travelling at a speed which was slightly excessive. Although the road was otherwise clear in front of him and the visibility and general conditions were good, the roadway question passed through a residential area where at that hour of the day it was not unlikely that there would be pedestrians in the vicinity who would wish to cross the road, and in particular in the vicinity of Goyder Street there would be other vehicles which would be likely to cross from one side of Jerrabomberra Avenue to the other. In those circumstances it seems to me that a driver who proceeded at more than the speed limit of sixty kilometres per hour towards that intersection was taking an unnecessary risk. Secondly, I think that the defendant should have done something more positive about reducing his speed once he noticed the plaintiff start to cross the road. Thirdly, although I do not think it was unreasonable for the defendant to interpret the plaintiff's gesture as an invitation to pass in front of her, the defendant could reasonably have rejected that invitation if he had not been under the further misapprehension that there was a vehicle on his left. In all those circumstances it seems to me that the defendant was travelling at an excessive speed, failed to take proper evasive action when it appeared or should have appeared that there was a real possibility of collision with the plaintiff and also failed to keep a proper lookout. I am satisfied on the balance of probabilities that there was negligence on the part of the defendant.

11. On the question of contributory negligence where, of course, the defendant bears the onus, I am satisfied that the plaintiff failed to take care for her own safety. She did not take sufficient care to observe the traffic that was in fact approaching and she did not take sufficient care to ensure that she crossed the road in such a way that she would become aware of any traffic that might approach her proceeding southwards and presenting a risk to her personal safety. I do not think that the plaintiff failed to take reasonable care for her own safety in that she did anything in the nature of issuing an invitation by her gestures that the defendant should pass in front of her. I think it more likely that the gesture which she obviously does not remember was one of confusion or panic. In my view the defendant has made out a case on contributory negligence. The question then arises as to the extent to which it is just and equitable to reduce the plaintiff's damages having regard to the contribution by each of the parties to the plaintiff's injury. In a rough and ready sort of way, it seems to me that each party is equally responsible for the chain of events which led to the plaintiff's injury, but this is not the exact question to be decided. The test is what is just and equitable in all the circumstances. It was, after all, the vehicle driven by the defendant which struck the plaintiff. Her injuries were not caused by her walking into the vehicle. The defendant was under an obligation to comply with the traffic laws and to take reasonable care to control a potentially dangerous object without injuring others. He drove in excess of the speed limit and he drove into the plaintiff after failing to take reasonable care. In my view, it is just and equitable that the defendant should bear a greater share of responsibility for the damage which flowed from his breach of his duty towards other road users. I think that the plaintiff's damages should be reduced by one third for her own contributory negligence.

12. I turn now to the question of damages. The plaintiff was born on 3 March 1931 in Calabria. She married in 1949 after working on the family farm. She continued to work there until 1957 when she came to Australia. She and her husband had four children all of whom are now grown up. Three of them remain living with her at home. Her husband died in 1971. Since her arrival in Australia she worked in jobs around motels and the like as a housemaid, cleaner or in a similar role. After the death of her husband, however, she gave up work for several years and resumed in 1982 at the Banjo Paterson Motor Inn, Narrabundah until the day of her injury. She worked eight or nine hours a day and frequently worked weekends as well. After the accident the plaintiff was taken by ambulance to the Royal Canberra Hospital where she remained until 28 April 1983. She was not entirely conscious during the first day or two and I think there was probably some short period of retrograde amnesia. Whilst in hospital she suffered pain in the pelvic area and in the right hip. She was discharged from hospital somewhat earlier than might otherwise be expected because of the anticipated assistance that she would get from her adult children. She returned to work on 22 August 1983. She continued to have trouble in the right hip but also had pain in the left upper arm and headaches. She continued, however, to work as before until she went back into hospital on 3 August 1984 when Dr Kitchin removed plates from her left arm. On this occasion she was in hospital for six days and she returned to work on 24 September 1984. However, her hours of work were reduced somewhat to about five to six hours per day. She continued in this vein until July 1986 when at the suggestion of her employer she ceased work temporarily. There is no claim that she is permanently unfit for work, and it was expected at the time of the hearing before me that she would resume probably within a few months. Her main complaints at that stage were bad headaches, dizziness and pain in the left arm and hip. The hip and arm pain were, according to the plaintiff, relieved on resting but the dizziness and headaches continued.

13. The plaintiff's evidence as to her condition since the accident was that she has had the pain mentioned above more or less continuously but the intensity of it fluctuates. She also complains of reduced grip in the right hand, especially the right thumb. She spoke in particular of nervousness, loss of weight, impatience and a change of personality from a cheerful, outgoing woman who spent a good deal of her energies on attending to her household and her family. Since the injury she says that she has to rely on the family to do most of the work around the place which she used to enjoy doing. For instance, one of her sons now attends to the garden and the daughters assist in housework including ironing, cleaning the floor and sewing. However the plaintiff still does the cooking and does a certain amount of washing up of dishes and washing clothes. I would mention that she gave some evidence in the case which suggested that there has been a problem with her teeth since the accident which can be attributed to it. However the report from the dental surgeon, Mr. Seaniger, does not support this claim.

14. I observed scars on the inner aspect of the plaintiff's right forearm, one of these is about 150 centimetres long and the other is about 100 centimetres long. There is a faint scar on her forehead extending from the left eyebrow to the hairline. There is some discolouring also on the left cheekbone but this is, in my view, of little consequence. The scarring on the forehead is noticeable but it is not particularly unattractive. On the other hand, I can understand that the plaintiff would be particularly concerned about the scarring on the arm.

15. On the whole I think that the plaintiff was a truthful witness. I think that she did tend to exaggerate a little but I am not convinced that this was done deliberately and I think that any exaggeration is connected with a condition of nervousness and worry which itself stems from the aftermath of the injury. The plaintiff says, for instance, that she is nervous when travelling in cars and I accept that.

16. The medical evidence in the case was all furnished by way of reports, and none of it is really in dispute. The treating surgeon was Dr Kitchin, who noted that the major injuries were a five inch laceration of the left forehead, a fracture of the shaft of the distal radius and ulna of the left arm with displacement and an undisplaced fracture of the pelvis. She was treated by way of sutures of the facial laceration, open reduction and internal fixation of the fractures of the arm. The pelvic fracture was treated by bed rest. Dr Kitchin reviewed the situation as at 16 September 1985 and reported on the removal of the fixation plates on 6 August 1984 which had caused her to be unfit for a month, and also on the operative scarring. Dr Kitchin noted that at that stage there was full range of movement in both hip joints. Apart from the residual scarring over the right forearm and the left forehead and an area of sensory loss on the back of the right thumb, Dr Kitchin took a very optimistic view of the plaintiff's future as he then saw it and stated categorically that there was no loss of function in the right arm and that the plaintiff would not suffer any osteoarthritis.

17. Dr Corry, a specialist in rehabilitation medicine, examined the plaintiff for the purpose of this litigation on 13 September 1985. His report largely confirms that of Dr Kitchin. However, the complaints made to Dr Corry were somewhat more detailed than those to Dr Kitchin. In particular, the plaintiff told Dr Corry of her poor memory, lack of concentration, moodiness and tendency to get upset easily. She also mentioned as she did in her evidence her poor sleeping habits since the injury. Dr Corry's view was that the continuing disabilities were mainly the general loss of energy, poor memory, lack of concentration, depression and disrupted sleep patterns. Dr Corry also noticed loss of grip in the right hand and thought that that would be permanent.

18. Dr Colin Greaves, an orthopaedic surgeon, saw the plaintiff for the purpose of litigation on 10 February 1986. The history and complaints were similar to those given to Dr Corry. Dr Greaves noted that the plaintiff's manner was more cheerful and relaxed after he spoke to her in Italian. On examination Dr Greaves noted restriction of wrist movement. Dr Greaves was unable to give an explanation as to why the plaintiff should have symptoms in the right upper arm though he thought it was understandable that she would still have a "sense of weakness in the forearm for everyday tasks". He thought that she was fit for full-time employment as a supervisor but he was not so sure as to whether she could manage what he understood to be the more arduous work that she had been carrying out before her injury.

19. Dr Knox, a consultant psychiatrist, saw the plaintiff again for the purposes of litigation. It is clear that the plaintiff is not suffering any form of mental illness and I am unable to accept that there is any problem of a psychiatric nature in her case. However, Dr Knox noted a history of mixed depression, anxiety and irritability since the injury. He also noted a weight loss of six kilograms which the plaintiff did not mention in evidence or to other doctors. Dr Knox suggested anti-depressant medication for the plaintiff but she was reluctant to accept any advice along those lines. This, I think, is indicative that her troubles are probably not as great as she sought to make out in her evidence.

20. In the end there is really very little at issue in the case. The plaintiff obviously had injuries of a potentially serious nature which have fortunately left her without any physical disability except for a weakness in the right wrist and a loss of grip. Unfortunately she has permanent reminders of the collision in the scars on the right forearm, which are quite unsightly, and a noticeable but not ugly scar on her forehead. The initial results of her injury were that she was unable to carry on her previous busy working life both at her place of employment and at her home which she had obviously previously enjoyed. She has become uspset and concerned about this to the extent that she has ceased work temporarily until such time as she can gather herself together sufficiently to go back. Evidence was given by Mr. Singh, the manager of the motel that her employer is quite willing to take her back at any time. She does not have to carry out arduous physical work and can continue in the position of a supervisor of the laundry at the motel. She does not have to carry out any of the cleaning duties.

21. The plaintiff is obviously entitled to her loss of earnings for when she was in hospital and when she was convalescing before going back to work. However the evidence relating to the reduction of hours between 1984 and 1986 does not go far enough to convince me that the plaintiff's hours were reduced because she was incapable physically of carrying out work during the hours that had been worked prior to the accident. For reasons that are not clear the employer placed her on the casual staff during this period. She was regarded as not so "productive" as she had been before the injury, but I am not convinced on the balance of probabilities that the employer offered her less work for that reason. She is a valued employee and remains such.

22. The plaintiff will, however, be awarded her wage loss from the date of injury until 22 August 1983 and for the period 3 August 1984 to 24 September 1984. The amount for those periods is agreed at $6,106.83 net.

23. I think it also reasonable to award the plaintiff her loss of wages from July 1986 until the date of hearing, a period of about thirteen weeks for which the amount is again agreed at $3,625.83. For the future I think that she should be allowed a further amount to cover another thirteen weeks or so together with a small component to act as a buffer against the possibility that there may be occasions in the future when she will lose time from work for her depression or weakness in the right arm, but I do not think that the likelihood is at all substantial. For the future I think she should be awarded the total sum of $5,000. Out-of-pocket expenses are agreed at $5,102.42.

24. There is a claim for payment in respect of the domestic services rendered by members of the plaintiff's family. Clearly there should be something awarded under this head for the period of convalescence after both operations and also, I think, for the assistance given by the son. However, again I think the claim should be regarded overall as a modest one. The test is whether the plaintiff might reasonably have engaged paid help to carry out these services and I am not convinced that, bearing in mind the modest nature of the plaintiff's physical disabilities, that more than a couple of hours per week is justified. It is not disputed that a reasonable amount under this head to the end of June 1983 would be $2,268. For the period since then I would award $20 per week, that is to say, a total of $1,750. I am not convinced that the claim under this head should be continued for the rest of the plaintiff's expected life span. I am not convinced that her depression and irritability will, if they continue, necessarily be attributable to the injury, but again to guard against the possibility that this may be so, I would award again a modest amount of $1,000 for the future. The Fox v. Wood component is agreed at $1,407.28.

25. For pain and suffering and loss of enjoyment of life I would award $20,000. I apportion $12,000 of this as to the past. Total damages are $46,260.36 reduced by one third for contributory negligence to $30,840.24.

26. Interest is claimed and will be awarded at 14 per cent per annum and the result reduced by half on the past wage loss after deduction of worker's compensation and on the component of past pain and suffering and loss of enjoyment of life. I am accordingly unable to calculate the interest on the material before me. I will give liberty to the parties to apply in respect of interest and when that is done I shall announce the sum for which judgment is to be awarded. Unless the parties want to be heard on the question, I will also order that the defendant pay the plaintiff's costs.