Alyson Beatrice Kilby v the Nominal Defendant [1986] ACTSC 71 (21 July 1986)

SUPREME COURT OF THE ACT

ALYSON BEATRICE KILBY v. THE NOMINAL DEFENDANT
S.C. No. 993 of 1981
Negligence - Contributory Negligence - Nominal Defendant - Damages and
Personal Injuries

COURT

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

CATCHWORDS

Negligence - motor vehicles - plaintiff lost control when braking and swerving to avoid another vehicle which cut in front of hers in heavy traffic.

Contributory Negligence - failure to keep proper lookout - failure to wear seatbelt - whether latter amounts to contributory negligence - extent to which damages ought to be reduced.

Nominal Defendant - due search & enquiry - effect of failure to pursue avenues of inquiry.

Damages and Personal Injuries - cervical spine injury and psychological sequelae - substantial claim based on extraordinary intensity of pain and emotional factors - plaintiff an active and successful music teacher and violinist.

Harrison v. The Nominal Defendant (1976) 50 ALJR 330 at 331

Slinn v. The Nominal Defendant [1964] HCA 72; (1964) 112 CLR 334 at 339

Luntz Assessment of Damages for Personal Injury 2nd ed., para 1.11.04

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Todorovic v. Waller [1981] HCA 72; (1981) 150 CLR 402

HEARING

CANBERRA
21:7:1986

ORDER

There be judgment for the plaintiff in the sum of $380,500.00.

DECISION

This is an action for damages against the Nominal Defendant appointed under the Motor Traffic Ordinance 1936. The writ was issued on 7 July 1981. Pleadings closed on 17 March 1983. A certificate of readiness was filed on 2 October 1985.

2. The plaintiff was injured at about 4.15 p.m. on 4 November 1980 whilst driving westward in Adelaide Avenue, Deakin between the Hopetoun Circuit underpass and the Kent Street overpass. She was a school teacher at the time and was driving her Renault car home from work. Her account of what happened commenced at a time when she was in what was called the number 2 lane, that is to say, the second lane from the kerb. There were at least three lanes in that section of Adelaide Avenue. The third lane was to the plaintiff's right. The kerbside or number 1 lane joined Adelaide Avenue just west of the Hopetoun Circuit underpass and continued westward for half a kilometre or more until it became in effect the Kent Street exit ramp. It was the plaintiff's intention to take the Kent Street exit to go home to Garran. Heavy rain was falling. The plaintiff said that the traffic was normal, but banking up ahead of her near the overpass. She said that she crossed to the lefthand lane after putting her indicator light on. She was travelling at about 40-50 kilometres per hour. At a distance "considerably ahead" of her she noticed a small car, a Mini Minor or something similar, almost stationary at the commencement of the ramp in a position which suggested that it was trying to get back into the main stream of traffic proceeding westward towards Woden Valley. According to the plaintiff there was no other vehicle between her and the Mini when she first noticed it. She said that as she got closer, another car, on her right, "cut in front" of her. She said that she then braked, her car started to skid and collided with an electric lightpost. There was, she said, no time to do anything but brake. She was cross-examined extensively about the vehicle which she alleged cut in in front of her. She thought it was a Datsun type vehicle. It was referred to in the case by both counsel and witnesses as though it were a Datsun. She agreed with the suggestion put to her on several occasions that that vehicle was accelerating away from her, and she gave in the light of that circumstance conflicting and confusing explanations of why she applied her brakes. She said that the other vehicle "appeared out of nowhere", that she did not see it until it cut in front of her, and that if she had not applied her brakes there would have been a collision with it.

3. The only eye-witness to the events was Mr. Michael John O'Brien, who was called in the defendant's case. He too was driving westward in Adelaide Avenue and at some unspecified stage after passing Hopetoun Circuit, he moved into the Kent Street exit lane. He noticed a white Mini type vehicle stationary further along in the exit lane apparently waiting to get back into the main stream of traffic proceeding westward. He said that there were a number of cars between him and the Mini. He noticed the brake lights of those cars, and he then saw the car immediately in front of him swerve left and skid off the road colliding with a lamp-post. I am satisfied that that car was clearly the car being driven by the plaintiff. Mr. O'Brien said that the vehicle immediately in front of the plaintiff's vehicle, a Datsun, and the Mini drove off. Mr. O'Brien stopped his vehicle (it also happened to be a Datsun) and went to render assistance. The plaintiff was taken to the Woden Valley Hospital before the police arrived. Sgt. Jones attended the scene and made notes upon the official traffic accident report form. He found the plaintiff's vehicle in collision with a light pole 300 metres west of Hopetoun Circuit. He later spoke to the plaintiff in the Woden Valley Hospital but did not record the conversation as such, merely using it to enable him to complete the details in the traffic accident report form.

4. It was the plaintiff's case that the vehicle which cut in front of her left so little space between the two vehicles that she was forced to brake to avoid a collision, or at least that she acted reasonably in her braking for fear of causing a collision, and that thereafter the combination of circumstances, including the wet surface of the road, caused her to lose control and collide with the electric light pole. That case does not appear clearly from the particulars set out in the statement of claim, but there is no doubt that the issues raised by it were well and truly litigated at the hearing. The defendant's case was that the plaintiff was proceeding in a line of traffic in which the vehicles braked suddenly because of the action of the Mini vehicle and that the plaintiff, by failing to keep a proper distance between her vehicle and the vehicle immediately in front, or in failing to keep a proper lookout, or by a combination of both, failed to avoid a collision with the vehicle immediately in front when the driver of that unidentified vehicle applied the brakes. Contributory negligence was raised. I shall return to that subject.

5. The plaintiff was not a very convincing witness in the manner in which she presented her evidence on these events. Amongst other things she could not remember whether she had refastened her seatbelt after releasing it at an earlier stage in the journey. Some parts of her evidence smacked of reconstruction. On first impression Mr. O'Brien was the more credible witness. On the other hand, when Mr. O'Brien's evidence is examined with some care it does not, in my view, conflict in any significant way with the case presented for the plaintiff. The substantial difference in the two accounts is that Mr. O'Brien said that there were several vehicles between his vehicle and the Mini (and hence between the plaintiff's vehicle and the Mini), whilst the plaintiff maintains there was no vehicle between her and the Mini until the Datsun cut in in front of her. Either the plaintiff or Mr. O'Brien is confused about the traffic banking up on the exit lane as contrasted with the traffic banking up on the Number 2 lane near the Kent Street overpass; it is possible that both witnesses are somewhat confused in this respect. Furthermore, Mr. O'Brien said that he could not be specific on the details as to the traffic. He could not recall anything about the vehicle he was following until he noticed the Mini. Most significantly, I think, Mr. O'Brien said that at a time which was prior to his observation of the Mini vehicle "everyone was sort of pretty well jostling for a position to get into the inside lane". He also conceded in cross-exanination that the vehicle immediately in front of the plaintiff "could have cut in just at the last moment". Overall, I think that the plaintiff's account is the more probable one. I think that the driver of the Datsun vehicle was guilty of a failure to take reasonable care in passing in front of the plaintiff's vehicle at too close a distance, forcing the plaintiff to react as she did, which was reasonable of her in the circumstances, and which caused her to collide with the light pole. The Datsun vehicle was unidentified.

6. In order for the plaintiff to succeed against the Nominal Defendant it is necessary for her to prove pursuant to s.85(3) of the Motor Traffic Ordinance 1936 that the identity of the vehicle which caused her injuries cannot, after due search and enquiry, be established. The evidence relating to the search and enquiry made on the plaintiff's behalf is very meagre. Mr. O'Brien said that the Datsun vehicle continued on after the collision. He was not asked anything either in chief or in cross-examination which went to the identity of the vehicle, but I am prepared to assume in the circumstances that he could not have said anything which might have assisted to establish the identity of that vehicle. Sgt. Jones expressed the view that no further steps were taken to identify the vehicle in police circles because of the likely futility. The plaintiff's solicitors placed an advertisement in a local newspaper on 7 February 1981. The plaintiff herself said that prior to that she was in a state of confusion and was in effect in no position to make any searches or enquiries on her own part. As was said by the then Chief Justice of the High Court in Harrison v. The Nominal Defendant (1976) 50 ALJR 330 at p 331, the efforts made to identify a vehicle which has caused personal injuries to a person upon a public street must be more than the performance of a ritual. In Slinn v. The Nominal Defendant [1964] HCA 72; (1964) 112 CLR 334 at 339 his Honour said:

"The concept, I think, is that there should be

inquiry and that inquiries when they yield leads
should be followed up. Asking questions without
pursuing answers may very well be found
insufficient."

7. In the light of those remarks it is curious that there was no evidence as to what replies, if any, were received to the advertisement which the solicitors placed in the local newspaper. If information was received as a result of that advertisement which itself opened up a new line of enquiry, it might be expected that the plaintiff would seek to show that any such new line of enquiry was properly pursued. It is curious also that although Mr. O'Brien's name appears as a witness upon the police report which was made available to the plaintiff's solicitors in February 1981, it is not suggested that any efforts were made to contact him on the part of those advising the plaintiff. However, as I have said, I am prepared to accept that the evidence of Mr. O'Brien at the hearing has established that even if inquiry had been made of him in early 1981 no further light could have been cast upon the identity of the offending vehicle. In all the circumstances and not without hesitation I find, as a matter of fact and on the probabilities, that the plaintiff has established that the identity of the vehicle could not be established after due search and enquiry.

8. I turn now to contributory negligence. The defendant relies upon the failure of the plaintiff to keep a proper lookout and also the failure to wear a seatbelt. I think that the defendant has established that the plaintiff failed to take proper care for her own safety in that she was entirely ignorant of the presence of the vehicle which cut in in front of her until it was in the act of doing so. The inference must be drawn that the other vehicle was in the number three lane for some appreciable time prior to drawing over in front of the plaintiff's vehicle. I am unable to determine, however, whether the other vehicle rapidly overtook the plaintiff's vehicle shortly before pulling over in front of her vehicle, or whether they had travelled more or less side by side, or whether indeed the plaintiff was overtaking the other vehicle when it pulled over. One of those three hypotheses must be correct but, insofar as the onus lies upon the defendant, I am not prepared to accept the hypothesis which is most adverse to the plaintiff. It is likely, in my view, that her attention was directed towards the left as she was changing lanes and her attention was then directed towards the Mini van further up towards the Kent Street exit. That would go to explain her failure to notice the other vehicle on her right, but it would not excuse that failure. I do not think that the action of the plaintiff in braking constituted a failure to take reasonable care for her own safety as, in my view, the distance between the two vehicles at the time the other vehicle passed in front was such that a reasonable driver in the time available might well have reacted as the plaintiff did by applying the brakes in order to avoid a collision which on retrospect might be seen as not likely to have ever happened. Furthermore I am not convinced that the plaintiff's failure to control the vehicle after she applied the brake, constituted a failure to take reasonable care for her own safety. In any event braking, or failing to properly control the vehicle, were not pleaded as particulars of the plaintiff's contributory negligence. The plaintiff's failure to take reasonable care for her own safety was not of a high order compared to the negligence of the driver of the Datsun.

9. The evidence as to the wearing of a seatbelt is somewhat peculiar. The plaintiff said that she remembered engaging the seatbelt before she set out on her journey, but when she was at a set of traffic lights on Commonwealth Avenue she released her seatbelt in order to get out a handkerchief, and she does not remember re-engaging the seatbelt. I am told, and it is not disputed, that in an answer to interrogatories she admitted that she was not wearing a seatbelt at the time of her injury. She also conceded in cross-examination that she said as much when she was admitted to the Woden Valley Hospital. A copy of the police traffic accident report obtained in February by the plaintiff's solicitors makes no reference to the wearing of a seatbelt. The traffic accident report which was produced by the Commissioner for Police upon subpoena, however, bears the appropriate endorsement or marking to indicate that the information received by Sgt. Jones was that the plaintiff was in fact wearing a seatbelt. What the source of his information was, I do not know. The evidence from the police source was equivocal at the best and does not assist the party upon whom the onus lies. There is, however, no positive evidence at all that the plaintiff was wearing a seatbelt at the time. What evidence there is on the question points to the contrary. In my view, the defendant has established on the probabilities that the plaintiff was not wearing a seatbelt at the time of her injury. The further question remains, however, whether that failure, which I accept to be a failure to take reasonable care as to her own safety, contributed to the plaintiff's injuries. Again the onus lies on the defendant. Clearly the wearing of a seatbelt had no bearing on whether or not the vehicle would have been likely to collide with the light pole. I am satisfied that certain of the plaintiff's injuries would not have occurred had she been wearing a seatbelt. For instance, she suffered a laceration to her left eyebrow which necessitated stitches. Had she been wearing a seatbelt I am satisfied that that injury would not have occurred. She also suffered certain injury to her sternum and again, although it is not so clear, I am satisfied that it is likely that that injury would not have occurred if she had been wearing a seatbelt. The plaintiff's substantial injury, however, relates to her neck and cervical spine. The evidence of Dr Andrews was that the wearing of seatbelts has not been shown to obviate or even to lessen the incidence of whiplash type injuries. Although it might be open to question as to whether the plaintiff's condition has been caused by a whiplash injury strictly so called (assuming that whiplash injury is capable of strict definition), I am not satisfied that the wearing of a seatbelt would have avoided the type of injury that she in fact sustained to her neck and cervical spine. Accordingly the defendant has failed to establish that the plaintiff's contributory negligence as far as the failure to wear a seatbelt is concerned contributed to more than her facial and sternum injuries. This gives rise to certain difficulties. As a matter of law damages are to be reduced in a case where contributory negligence is proved to such extent as the Court thinks just and equitable having regard to the plaintiff's share in the responsibility for the damage: Law Reform (Miscellaneous Provisions) Ordinance 1955, s.15(1). As a matter of practice the extent of the reduction is usually expressed in terms of a fraction or of a percentage of the whole of the damages. I find it quite impossible in the circumstances of the present case to approach the question in that way. What I propose to do is approach the question of damages by regarding the injury to the face and to the sternum separately from the other injuries in the case and to reduce the damages attributable to the two particular groups of injuries to the extent that the plaintiff's contribution to the events which caused those respective groups of injuries makes it just and equitable to do so. This may be an artificial and somewhat over-refined approach, but I see no reasonably logical alternative. Such cases as there are are discussed in Luntz Assessment of Damages for Personal Injury 2nd ed., para 1.11.04. None provides authoritative guidance.

10. I therefore find for the plaintiff on the question of liability and for the defendant on the question of contributory negligence. I deem it just and equitable that the plaintiff's damages should for her part in the events leading to her injuries be reduced by 10 per cent, except for that portion of the damages which relate to her facial and sternum injuries. The damages for those injuries should be reduced by 50 per cent.

11. I turn now to the question of damages. The plaintiff's claim is a substantial one and it may be as well to state what I perceive to be the issues between the parties on damages, as those issues are not established on the pleadings. The plaintiff's claim is that at the time of the injury she was pursuing a career as a music teacher and was at the same time an accomplished musician. She was leading a successful and rewarding life in its professional, domestic and social aspects. It is alleged that in the accident she suffered an injury to her back which, together with the emotional and psychological sequelae, has led to the ruination of her professional career, the breakdown of her marriage, and the prospect of a life permanently racked with disabling pain. Other items of damage include the termination of her first and only pregnancy and the need for quite expensive dental attention. The case for the defendant is that the plaintiff's back condition has not been proved to be the result of the injury, that her situation has been complicated by domestic and personal factors which are not the responsibility of the defendant, and by the desire whether conscious or unconscious of gain from the present litigation, and that whatever be the true extent of her pain and disability at the present time, she will improve dramatically when the case is over. It is obvious that the credibility of the plaintiff as a witness is a crucial factor.

12. I am bound to say that after close observation of the plaintiff, who was in the witness box for a considerable time, I accept her by and large as a witness of truth. I take into account the arguments put by Mr. Morris, Q.C. on behalf of the defendant which go to emphasise that there are some unusual and even bizarre factors. The abject picture painted by the witnesses seemed to be in conflict with the rather cheerful disposition of the plaintiff while she was giving her evidence. Indeed, on occasions, she was prone to burst into laughter, but whether this was due to nervousness or embarrassment or something else, I do not know. It was submitted on behalf of the defendant that the plaintiff, in contrast with her complaints to the doctors, exhibited in the witness box a free range of neck movement. However, I do not consider that to be the case. I noticed that the plaintiff frequently changed her position in the witness box from the sitting position to the standing position and vice versa and I accept that as reflecting the degree of discomfort which she feels when adopting one position or the other for a prolonged time. In making my assessment of the plaintiff as a credible witness, I have endeavoured to put out of mind the substantial amount of material before me that sought to prove the exemplary character of the plaintiff, material which would have been relevant if she were being sentenced for the commission of a criminal offence but which was mostly beside the point in the case I have to try.

13. The plaintiff was born on 30 August 1944. From a very early age she showed great aptitude in music. At the age of 14 she obtained the distinction of associate in music of the Australian Music Examination Board for violin performance. At the age of 17 she was admitted as a licentiate in music of the Board. When she was 19 she was awarded a diploma in music, violin section, teacher grade, of the State Conservatorium of Music. In the meantime she had obtained a position as a music teacher at the Wickham Girls' Junior High School in New South Wales and she continued her postgraduate studies at the Conservatorium of Music in violin studies under Sir Bernard Heinze. In 1966 she came to Canberra to teach music at the Telopea Park High School. She was head of music there until 1969 when she took a position at the Canberra Grammar School. The music department at the school at that stage was catered for by one teacher who was about to retire. The plaintiff took the initiative of establishing the music department as a major one within the school and began to display considerable aptitude for teaching and administration in addition to her talents as a violinist. In 1967 she married a teacher of violin at the Canberra School of Music. They were not able to have children of their own and adopted a son in 1970 and a daughter in 1972. However they separated in 1973 and there was a subsequent divorce. In 1979 she married another teacher from the Canberra Grammar School and, because of the rules of the school, she resigned her position. In June 1979 she took a position at Watson High School. There again, until the arrival of the plaintiff, the teaching of music had been something of a backwater. The plaintiff's talent and enthusiasm was such that a school orchestra was formed for the first time and within two years had won an Australian championship. In 1980 the plaintiff applied for promotion to Band 2 within the ACT Teaching Service, but her application had not yet been determined at the time of her injury on 4 November the same year. In addition to the teaching of music as such, the plaintiff had taken considerable interest in the general welfare of her pupils and she saw and applied music as a tool in the general educational development of those in her charge.

14. Besides teaching within the school, the plaintiff had taught privately, although she had not pursued private lessons for at least twelve months prior to her injury. She had, however, for many years been active in the musical world in Canberra and amongst other things performed as leader of the second violins in the Canberra Symphony Orchestra. She also participated as a performer with groups such as the Canberra Philharmonic Society and others which were formed for particular occasions when visiting artists performed in Canberra. On the other hand, it seems that the plaintiff had not followed the course that had been predicted as a possibility years before that she would become one of Australia's outstanding solo violinists. It seems that she had made Canberra her home and obtained adequate satisfaction from participating in the educational system and the general musical scene in the Territory. These matters were all the subject of written references and other documentary material as well as the oral evidence of Mr. Nelson Cooke, a lecturer at the Canberra School of Music, Mr. McGinity, formerly the Headmaster of Watson High School, and Ms. Gillian McIntyre, a professional teacher of the violin in Canberra. Their evidence was not challenged on these matters and it is unnecessary to set it out in detail.

15. The evidence as to the plaintiff's family life, however, did not go unchallenged. The plaintiff said that her marriage to Mr. Kilby had, up until the time of her injury, been a successful and satisfying one. In contrast, Dr Hardy, who was her general practitioner, stated in evidence that the plaintiff had, prior to the injury, mentioned problems within the marriage which however were not sufficient to call for medication or reference for more specialised advice. I see no reason to reject the evidence of Dr Hardy and I take into consideration the plaintiff's own evidence that there were certain difficulties which apparently had something to do with the husband's access to the children of a former marriage of his. I accept that for the first and only time in her life the plaintiff was, at the time of her injury, pregnant.

16. The plaintiff's evidence was that immediately after the accident, she noticed blood on her face and felt severe pain in her chest, head and shoulders. She does not recall being taken out of the car or being put in the ambulance. She said that she was in hospital for a couple of days and came out on the third day. The report from the hospital, however, indicates that she was under observation at the hospital for twenty-four hours only. The hospital notes indicate also a bruised sternum and pain in the right elbow. There was a laceration over the right eye which was sutured, and bruising around the orbits of both eyes. There was also a degree of vaginal bleeding.

17. The plaintiff said that when she came home from hospital she was sore and bruised almost all over her body but after a couple of weeks or so when the bruising began to subside, she had very severe headaches and began to experience depression. She remained in bed virtually all the time. She continued to visit the hospital and on 18 December 1980 there was a miscarriage. She said that she felt "very frustrated and disorientated". The hospital notes indicate that she ceased complaining of lower chest pain by the end of December 1980. Dr Newcombe, who gave evidence, saw the plaintiff whilst she was in hospital and appears to have had charge of her care. She did not complain to him of pain in the neck region and he thought that the headaches were post-concussive. Dr Newcombe noted that the plaintiff had been subjected to a full physical examination once only at the time of her admission.

18. The plaintiff did not return to her duties as a school teacher until the beginning of the 1981 term. In the interim her symptoms of pain and depression continued and her marriage took a decided downturn. The plaintiff's husband, who did not give evidence, insisted on carrying out his plan to take a year off from work commencing in early 1981, despite his wife's injury. She and her husband separated and, I gather, it was the husband who left the matrimonial home. She continued with her school duties with difficulty through the first term and until the May holidays. During that time she received physiotherapy, traction, heat treatment, ultrasound and massage. She said on more than one occasion in her evidence that during this period "nothing made sense". In the May holidays in 1981 she went with the children to Adelaide and stayed with friends where she remained in bed most of the time. In the new term she returned to school for about two weeks, felt unable to continue and has not worked since. She has not played her violin except on rare occasions when she had tried for about ten minutes or so and the pain in her neck, shoulder and left arm has prevented her from continuing. On one at least of such occasions her body has gone into spasm. It took her a week or so to recover after taking pain-killers.

19. At some time in early 1981, for reasons that cannot be determined, the plaintiff ceased to consult Dr Hardy as her general practitioner and went to Dr Nelson at Griffith. She was first seen by Dr Nelson on 13 March 1981 and according to his report x-rays taken on an unspecified date showed signs of ligamentous damage in the cervical spine. The plaintiff complained to Dr Nelson of pain in the neck, shoulders, arms and head since the injury in November 1980.

20. The plaintiff's condition appears to have continued unchanged into 1982. Early in that year Dr Nelson referred the plaintiff to Dr H.V. Crock, an orthopaedic surgeon in Melbourne. Dr Crock arranged for discograms as a result of which he formed the view that the plaintiff had suffered disc disruption at the C4/5 and C5/6 levels. The plaintiff accepted his recommendation for surgical fusion. Fusion was carried out at operation on 11 May 1982 by Dr Crock. Dr Crock saw the plaintiff on more than one occasion since then, the last being January 1983. At about that time spinal manipulation was carried out more than once. On 22 February 1983 in a letter to the Commissioner for Superannuation, Dr Crock expressed the view that on the then indications it was unlikely that the plaintiff would be fit to return to her former occupation. He also expressed the hope that the settlement of the plaintiff's claim for damages could be effected. In his evidence to the Court Dr Crock acknowledged that the plaintiff's condition was influenced by domestic and personality difficulties.

21. The primary question for consideration on the question of damages is whether the spinal condition that led to the surgery by Dr Crock was brought about by the injury on 8 November 1980. Counsel for the defendant relied heavily upon the absence of complaint of pain in the neck or back on the part of the plaintiff when she was originally admitted to the Woden Valley Hospital and seen by Dr Newcombe and when she was seen by Dr Hardy at the end of 1980. The first complaint of neck or back pain to a doctor appears to have been to Dr Nelson on 13 May 1981. X-rays taken at about that time showing damage in the cervical spine provide a basis for the plaintiff's complaint. There is nothing in the evidence upon which the defendant can rely to show that the plaintiff was suffering from any sort of degenerative condition in the spine prior to injury. A suggestion to that effect was made to Dr Crock in cross-examination and he denied it. It was also suggested that there was a rule of thumb in accepted medical opinion that for an injury to bring about the sort of condition that required the operative treatment that the plaintiff in fact underwent, it could be expected that pain would be felt within the area in question within forty-eight hours of injury. However, the effect of the evidence is that there is no such rule of thumb, and I find accordingly. Both Dr Newcombe and Dr Crock agreed that pain in the area of injury might not be felt for weeks or even months afterwards, depending on the circumstances. Such circumstances could include the masking of pain in the particular area by pain elsewhere. In this respect I note that the plaintiff suffered multiple injuries and, in my view, it is likely that pain in her neck and back was overwhelmed, as far as her complaints to the doctors in the first few months were concerned, by her head injuries, her miscarriage and what she described as a general feeling of confusion. Dr Newcombe acknowledged that for a woman in her mid-thirties, with no sign of degeneration in her back, and without injury apart from that on 8 November 1980, the only real explanation for the condition that brought about the need for surgery was that injury. I find that the need for surgery (and the miscarriage) was a consequence of injury.

22. The plaintiff's medical history since the beginning of 1983 (by which time she should have been recovering from the operation) is not well documented and one again has to rely upon the plaintiff's own evidence. She said that she was referred to the pain clinic at the Woden Valley Hospital where attempts were made to treat her unsuccessfully by way of injections, nerve blocks and the like. She also said she saw Dr Chandran who performed a discogram and advised that she submit to further surgery. It was mentioned in one of the medical reports that she saw a psychiatrist, Dr Tony Lee, but she did not give evidence of this nor was there any report or evidence from Dr Lee. There is also nothing from Dr Chandran. Dr Andrews, who supplied a report and gave evidence, saw the plaintiff on 17 November 1983 on reference from Dr Nelson and formed the view that it was probable that the disc at C6/7 was causing the then continuing problems. He referred her back to Dr Nelson. Dr Andrews' view was that even if there was further surgery there was a fair degree of chance that there would be persistent symptoms of moderate severity. Dr Andrews' opinion took into account the result of some discograms performed by or on behalf of Dr Chandran. I do not know whether Dr Andrews actually saw these discograms, but I accept his assessment. Dr Andrews expressed the further view, however, that the chance of success of fusion of a third level of the plaintiff's cervical spine was not good.

23. In late 1984 the plaintiff came under the care of yet another general practitioner, Dr Webber of Manuka, who supplied a report but did not give evidence. Dr Webber reported that because of the plaintiff's long involved history he had restricted his management to support analgesics and encouragement. It is hard to determine how frequently he has seen the plaintiff, but he last saw her on 5 May 1986. She was still complaining of severe headaches, constant pain in the neck radiating down the left arm and a numbness in that arm. On some occasions the only effective treatment was either palfium or pethidine which are drugs normally administered only for post-operative or terminal pain. Other pain controlled medication is used by the plaintiff on a more regular basis. I would observe that towards the end of the first day of the hearing, the Court rose early because the plaintiff was feeling unwell. The following day she gave evidence that she had felt pain increasing and spasms starting in her shoulders and neck, that she was driven home by a friend, then driven to a doctor (unnamed) who gave her a pethidine injection. She was, however, able to drive herself to court on the second day of the hearing.

24. The plaintiff's evidence as to her symptoms and disability were largely corroborated by the witnesses. Mrs. Fraser, a neighbour, spoke of the plaintiff's apparent pain since the injury and of the various emergency house-keepers who were brought in to assist in household chores and of the increasing involvement of the children in those household tasks. Mrs. Fraser said that the plaintiff is normally in her bedroom when she visits and she has not heard the sound of the plaintiff practising her violin as she used to do.

25. Mr. McGinity, the former headmaster of Watson High School, spoke of the plaintiff's contribution to the development of the music department of the school and her capability as an administrator. He in fact supplied a reference for her on 28 May 1982 which appears to be directed towards the possibility of the plaintiff engaging in part-time employment. He realised at that time that the plaintiff was having some considerable physical problems but thought she might have got better.

26. Mrs. Diana Louise Northrop, a deaconess in the Uniting Church, spoke of her observations of the plaintiff's restricted activities. At bible study meetings the plaintiff exhibits signs of pain after ten minutes or so of sitting at a table and needs to sit back in a chair. Mrs. Northrop has not seen the plaintiff performing housework apart from helping to clear up after meals. Mrs. Northrop and her family have assisted the plaintiff's children in carrying out housework. On some visits meals are taken in the bedroom with the plaintiff remaining in bed.

27. Mr. Daniel Armstrong, the senior pastor at the O'Connor Uniting Church, gave some evidence of his observations of the plaintiff. Most of what he said was unchallenged, but he said, amongst other things, that on many occasions he had noticed the plaintiff in a neck brace. The plaintiff herself never said anything along those lines and there is no other evidence in the case to that effect. I can only conclude that Mr. Armstrong must have been mistaken in that regard. He was aware from what the plaintiff had told him that there were what he saw as problems between the plaintiff and her husband immediately prior to the injury, but he did not see them as problems which had anything to do necessarily with the break-up of the marriage. Mr. Armstrong also said that the plaintiff had told him that her father died in 1983 or thereabouts, something which troubled her greatly. The plaintiff ceased to attend Mr. Armstrong's church about twelve months before the hearing, but I do not think that I can draw any conclusion from that.

28. The plaintiff's son, Andrew Edwards, now aged almost 16, spoke as to the increased amount of work which he and his sister have to do around the house since the injury. Some of the tasks to which he referred are those which I expect would normally be carried out by a young man in a household lacking another male member. Insofar as the plaintiff's claim for the cost of domestic assistance has been limited to ten hours a week, I think that the claim is a reasonable one. Andrew Edwards also corroborated the evidence of the plaintiff that on occasions when she has been driving around a corner she has not been able to complete turning the steering-wheel without getting assistance from her son.

29. Mr. Nelson Cooke, to whom I have already referred, gave evidence about the plaintiff's capacity as a musician and violinist. He also spoke as to the nature of the musical world in the Australian Capital Territory and the opportunities, financial and otherwise, for musicians and teachers of music such as the plaintiff. Similar evidence was given by Ms. Gillian McIntyre and I shall return to that in a moment.

30. In the light of the evidence so far summarised, I find that the plaintiff had successfully exploited her ability and pursued her career to the extent that she was widely recognised, both in the Australian Capital Territory and beyond, as an outstanding teacher of music and a very accomplished musical performer. The performance and teaching of music was not simply a way of earning a living; she was one of those fortunate people who combined her consuming interest with the means of livelihood. Further, the evidence establishes that the capacity to perform as a musician and to teach music survives well into the later years of life. The plaintiff was a healthy woman at the time of her injury and there is nothing to indicate that she would not have continued to enjoy performing and teaching music for many years into the future. It may be observed, however, that she had, as I see it, virtually reached the peak of her career. The lifestyle that she had established for herself here in Canberra was sufficiently satisfying, that I could not conclude on the evidence that she was likely, for instance, at a later stage to become an international celebrity. I would, on the other hand, not exclude the possibility that at some time, particularly when her family had grown up, she might have moved to one of the larger capital cities in Australia for the greater satisfaction of her musical interests.

31. I leave the question of the plaintiff's likely professional career but for the injury and turn to the more difficult aspects of her family and personal life. She claimed that her musical and teaching commitments did not place any strain upon the marriage, because her husband shared her interests. I cannot overlook the fact, however, that her first marriage was unsuccessful even though the interests were shared with her then husband. Whatever the exact nature of the pressures within the second marriage, it is clear that pressures there were and they may well have become intolerable even without the injury. I am prepared to accept that on the probabilities the accident contributed to marital breakdown and the award for general damages will include a component for that factor, but it will have to take into account the contingency that the marriage may have been an unhappy one in any event.

32. The extent of the plaintiff's pain and disability as proved in the evidence is far greater than what might be expected from the injury. The medical evidence supports the conclusion that apart from physical injury there is a strong emotional and personal factor in the plaintiff's symptoms. This may well be a case in which there was not a proper diagnosis of her cervical condition at the early stages because of her failure to complain of pain in that area. As I have already indicated, I think that that failure is sufficiently explained. I think that all the personal and emotional factors which have gone to aggravate the plaintiff's condition were within the bounds of foreseeability and there is nothing to my mind which constitutes anything like a novus actus interveniens. I think that the plaintiff should be regarded as totally incapacitated for work from the time of injury until the present, but the quantification of that loss of earning capacity in the past should be discounted for the contingency that personal and domestic factors may have prevented her from working at some stage in the past in any event. As far as the future is concerned, I think that the appropriate method of assessment is to seek to fix the plaintiff's present periodic loss and then to ascertain the present value of such loss assuming that it continued until the plaintiff attained the age of 60 years. There should then be a substantial discount having regard to the contingencies already mentioned and having regard to the further, and in my view, substantial contingency that at some time in the future the plaintiff will come to terms with her injury and be capable of earning some income as a teacher. I do not, however, think it at all likely that she will ever recover her ability to play the violin to the extent that that ability would be of use at a performing level or even for the purpose of teaching. The plaintiff is, however, in many ways a resourceful woman and it would, in my view, be unreal to regard her as totally and permanently incapacitated for any form of income-earning activity. She is able to drive, attend bible classes and even carry out counselling work for a charitable organization, even if her disabilities make her somewhat unreliable at present.

33. Although I have found that the plaintiff's present ability to perform and teach music has been reduced virtually to nil, I am not convinced that her general interest in music has been obliterated. I accept that she finds sitting through a concert performance physically uncomfortable to the extent that she has to leave before the end, and I accept that there is also a possible element of emotional trauma. On the other hand, I find it difficult to accept that she does not gain some pleasure from listening to recorded music and I cannot accept in view of her past that she will not regain some of the interest and pleasure in music which to date she has forfeited. I would observe that her children are becoming accomplished musical performers, and I would expect that they have their mother's assistance and encouragement in this regard and further that she derives pleasure from it. I note further that in her income tax returns she was as late as 1984 claiming deductions for the cost of maintaining part of her home used exclusively as a studio, for piano tuning, for depreciation of a number of items including various musical instruments, a library of special records and cassettes, purchase of strings, and for subscriptions relating not only to membership of musical organizations but also to concert performances.

34. I turn now to trying to assess the plaintiff's damages in dollars and cents. The two major areas are loss of earning capacity and general damages. There was a considerable amount of evidence before me both from witnesses and in documentary form relating to the earnings that might be expected by a person working as a music teacher within the ACT education system, as a private tutor of music and as a performer in various Canberra musical groups. I have taken all that evidence into consideration, but in the end it is of assistance only in a very general way. The fact is that at the time of her injury and for several years before that the supplementary income that the plaintiff earned apart from her salary as a teacher was exceeded by the expenditure that she incurred in order to earn that income. For instance, in the tax year 1977/78 the plaintiff's gross income from her concerts and private teaching amounted to $809, but her net loss after taking into account expenditure incurred in order to earn that income was $2203. The net loss incurred in order to earn income from tuition and concerts in that year and in the two years previously averaged in excess of 10 per cent of her gross salary as a teacher. Whilst it may be contemplated that she gained a certain tax benefit from the loss from her activity as a private tuitor and concert performer because that loss was able to be offset against her income as a teacher, the plaintiff's claim was never framed in that way. It is highly questionable whether it could have been so framed because by the time of the injury in 1983 the plaintiff had ceased to earn any income at all from either of those extra sources. In the tax year 1978/79 she earned $500 only from concerts, with nothing disclosed for private tuition. In the tax year 1979/80, the last before the accident, she disclosed no earnings from either source. I have already mentioned another curious feature of the case that even beyond the date of the accident and until the tax year 1983/84 the plaintiff continued to claim tax deductions referable to tuition and concert performances although she derived no income from those sources. Her only income during that period was from worker's compensation or superannuation or a combination of both. I should add that she earned some income from the letting of a flat under her house, but that plays no part in the case.

35. The present earnings of a teacher in the ACT Schools Authority in a position similar to that of the plaintiff at the time of her injury is now $422.46 net per week. The net salary which the plaintiff would have received if she had remained in the employment of the Schools Authority from the time of injury until the present time is agreed at $106,800. I do not think that the plaintiff's loss of earning capacity should be calculated by adding any additional sum in respect of private teaching or concert performances because of the necessary expense incurred in earning income from those sources, as disclosed in the tax returns. I think it appropriate to reduce the figure for past loss having regard to the vicissitudes to which I have earlier referred and bearing in mind the plaintiff's prospects of promotion within the teaching service. I note that the plaintiff presently receives $400 net or more per week for compensation and superannuation which leaves little incentive for her to take up any paid activity. I would award $90,000 in respect of past loss.

36. As far as the future is concerned, I find, for the reasons I have given, that the plaintiff is in practical terms totally incapacitated for any form of paid employment. However, I further find there is a strong contingency that the plaintiff will at some time in the future be capable of engaging in some sort of activity for which she would receive financial remuneration. She does not have to take up employment and she does not have to play the violin. A loss of $422 per week for the next eighteen years which would bring the plaintiff to age 60, has a present value on 3 per cent discount value of about $307,000. I think that that should be discounted by 40 per cent for all contingencies above referred to. That would leave about $184,000.

37. There is a claim under the principle in Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. Mr. Sheils, on behalf of the plaintiff, submitted that it would be reasonable to allow the plaintiff ten hours per week domestic assistance at the present time and I think that is appropriate as a base for the future. As far as the past is concerned, the plaintiff has had domestic assistance on several occasions. In the early period after her injury she had emergency housekeepers. But there is no precise evidence of how long they worked and how much she had to pay for them. This contrasts strangely with the precision of the items of expenditure set out in her tax returns. A letter from the Australian Red Cross Society indicates that hourly rates for provision of housekeeping services between 1980 and the present averaged about $6 per hour. I would allow $16,000 for the past, and $25,000 for the future.

38. Included amongst the plaintiff's complaints was a complaint that she clenches her teeth when in pain and that her teeth are now broken and worn down as a result. She wears a plate at night to try and protect her teeth. Upon reference from her solicitors she attended Mr. Egen, a dental surgeon, on 1 April 1982. He said in a report that he deferred any assessment of her mandibular joints and function until the treatment for her neck injury was complete. The reports do not indicate at what stage Mr. Egan regarded the treatment for the neck injury as complete, but in his report of 3 February 1983 he notes that surgery was performed in the cervical region in the previous May. I infer from Mr. Egan's report, although the plaintiff did not say so, that he had been treating the plaintiff prior to her injury. He notes that he was not aware previously of the plaintiff clenching her teeth and Mr. Egan draws the conclusion that the clenching is a result of tension and anxiety. On 12 June 1986 Mr. Egan again examined the plaintiff who complained of pain in the vertex of the head, down to the back of the neck and down to the left arm. The pain was fairly consistent and was associated with clenching and muscular tightness. On examination Mr. Egan found that there was severe muscular tightness in the neck region which he considered would affect the posture of the lower jaw and the activity of the muscles on the front part of the neck. There was a greater restriction on that occasion of her capacity to open her mouth without pain and he drew the conclusion that the restriction of jaw opening was related to the change in muscle tone arising from neck injury. As a temporary dental measure Mr. Egan tried to restore the worn teeth with resin but those measures were not proving satisfactory. The plaintiff was wearing a splint at that stage to protect her teeth which tended, so she told Mr. Egan, to relieve some of the pain in the side of her face but did not relieve the neck or left arm pain. Mr. Egan's conclusion was that there had been an injury to the posterior cervical region compensated for by increased muscle tension in that area together with compensatory muscle tension changes in the anterior cervical region, all of which affected the jaw posture with excess loading of the temporomandibular joint. The teeth were, as a consequence, deteriorating and providing inadequate support and on the assumption that the problems of muscle tension would not be relieved in the foreseeable future, Mr. Egan recommended restoration with crowns on several teeth, the cost of which would be in the region of $9,000 to $10,000. He saw that as the only practical way of providing proper support to the temporomandibular joints and eliminating as far as possible further stress to the muscles by dental causes. In the circumstances, I think it appropriate to award the plaintiff the bulk of this claim, discounted somewhat for present payment for future expense and taking into account some relief from anxiety and tension is likely in the future. I would allow $8,000 under this head.

39. The plaintiff stated in her evidence that she spent about $10 a week on medication. Her somewhat vague evidence on this subject was not further pursued either in chief or in cross-examination and I propose to award $5,000 for future pharmacutical expenses. There was no mention at any stage of present medical expenses and although some such expenses in the future are likely, that component of the plaintiff's claim will be included in the award for general damages.

40. The pain experienced by the plaintiff in the past has been at an extraordinarily high level and the extent to which she has suffered loss of enjoyment of life has also been greater than normally encountered in cases involving injuries of the nature of that sustained by the plaintiff. I would award $80,000 under this head for past and future. In summary, I have allocated damages under the various heads as follows:

General damages $ 80,000

Past loss of earnings $ 90,000

Future loss of earnings $184,000

Out-of-pocket expenses $ 16,700

Future dental expenses $ 8,000

Future pharmacutical expenses $ 5,000

Tax paid on worker's
compensation $ 10,000

Domestic assistance $ 41,000
--------

Total: $434,700

41. It is appropriate, and probably necessary as a matter of law, for me to review the total figure in order to check whether viewing the case globally that total is a proper sum to award the plaintiff in the whole of the circumstances. Despite what I have said about the unusual features of the plaintiff's claim, the aggregate of the sums awarded under the various heads of damage seems to me out of all proportion to the nature of the plaintiff's injury and to the results which have flowed. This is highly suggestive of overlapping, something which is not uncommon in substantial claims for damages for serious personal injuries. Being somewhat aware of the levels of awards for damages that are made in personal injury cases in this Court and other courts of Australia (and without seeking to compare this case with any other particular case or cases), I would have thought as a matter of overall assessment that the plaintiff's claim would not have yielded damages in excess of $400,000. On the other hand, I am bound as a matter of law as I see it to apply the principles laid down by the High Court in Todorovic v. Waller [1981] HCA 72; (1981) 150 CLR 402 and Griffiths v. Kerkemeyer, and that application results in amounts expressed in dollars and cents which are not capable of reduction by an application of general discretion. To reduce the total to $400,000 would effectively wipe out half the award for pain and suffering. That would seem a totally unacceptable course when one considers that apart from pain and suffering, future loss of earning capacity and domestic assistance, the other amounts awarded under the various heads of damage are not very difficult of assessment. Overall, I think that a proper award of damages in the circumstances is $425,000.

42. An adjustment has to be made for contributory negligence in accordance with the rulings I have made on that matter. I apportion $5,000 for the injury to the forehead and the sternum and I reduce that by 50 per cent for contributory negligence. That leaves $2,500 for those injuries. I reduce the remaining $420,000 by 10 per cent for contributory negligence to $378,000. The total end figure is $380,500. There will be judgment for the plaintiff for that sum. There is no claim for interest. I will hear the parties on costs.