Elizabeth Vocisano; Domenico Vocisano; Domenico Calabria v Phillip Charles Sammut [1986] ACTSC 72 (24 July 1986)

SUPREME COURT OF THE ACT

ELIZABETH VOCISANO; DOMENICO VOCISANO; DOMENICO CALABRIA v. PHILLIP CHARLES
SAMMUT
S.C. Nos. 50 and 374 of 1984
S.C. No. 1783 of 1983
Negligence - Contributory Negligence - Damages

COURT

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

CATCHWORDS

Negligence - failure to keep proper lookout and failure to make righthand turn with safety - no question of principle.

Contributory Negligence - failure to keep proper lookout - no question of principle.

Damages - personal injuries - minor injuries - no question of principle.

HEARING

CANBERRA
24:7:1986

ORDER

In the action brought by Elizabeth Vocisano there be judgment for the plaintiff in the sum of $7,514.00.

In the action brought by Domenico Calabria there be judgment for the plaintiff in the sum of $9,794.40.

DECISION

These were actions for personal injuries brought by three plaintiffs all injured in the same motor vehicle collision. Mr. Domenico Vocisano was the driver of one of the vehicles concerned. Elizabeth Vocisano, his wife, and Domenico Calabria, her father, were passengers in the same vehicle. For practical purposes the actions were heard together. The joint hearing was a convenient course as it probably had the effect of somewhat reducing the costs involved. Otherwise the hearing was a very protracted one. Most of the evidence related to quantum of damages in the action brought by Mr. Vocisano. The claims by Mrs. Vocisano and Mr. Calabria should never have been brought in the Supreme Court.

2. The collision occurred on Friday, 12 August 1983 at about 1.30 p.m. at the intersection of Barry Drive and Marcus Clarke Street, City. The intersection is a T-intersection. Marcus Clarke Street runs south from the intersection. Barry Drive runs east west through the intersection. The plaintiff was driving his Mazda utility westward. The defendant had been driving his Mazda van east in Barry Drive and was making a right hand turn into Marcus Clarke Street. The intersection is controlled by traffic control lights. The exact position of the lights was not the subject of evidence. For vehicles proceeding west in Barry Drive there were at least two lanes. For vehicles proceeding east in Barry Drive there were at least three lanes. The lane furtherest from the kerb for vehicles proceeding eastwards had in effect been cut out of the wide median strip and was, I infer, a lane specially for vehicles turning right into Marcus Clarke Street. The evidence relating to the traffic control lights was given by a policeman, Constable Hatty, and by the defendant. It was not easy to understand. However, from it I conclude that when the lights were green for vehicles proceeding east in Barry Drive, the lights showed also for a short time a green arrow permitting vehicles to turn right into Marcus Clarke Street. When the green arrow was showing at the same time there was a red light showing for vehicles proceeding west. When the green arrow ceased to show the ordinary green light continued to show for three seconds before the red light for vehicles proceeding west turned to green. Thereafter there was for a time a green light showing in both directions, that is to say for both vehicles proceeding east and vehicles proceeding west. During that time there was nothing to prohibit a vehicle proceeding east in Barry Drive from making a righthand turn into Marcus Clarke Street apart from the conditions of the traffic. At that stage a driver making such a righthand turn was under a duty to be particularly sure that there was no likelihood of a collision in the intersection with vehicles proceeding eastward through it. Whilst a driver turning right was entitled to assume, whilst the green arrow was showing, that an oncoming vehicle was prohibited by a red light from proceeding through the intersection, he was not entitled to make that assumption once the green arrow ceased to show.

3. The evidence of all the plaintiffs was that they had been to the bank at Kingston then to the fruit markets at Fyshwick and then were on their way so that Mr. Calabria could be dropped at his home at Cook and the plaintiffs would proceed to their home at Hawker. They said that this was their Friday afternoon custom. All the plaintiffs maintained that the traffic lights were showing green when they approached the intersection. As I have indicated, they could not be correct in this observation if at the same time the green arrow was showing for oncoming traffic. None of the plaintiffs saw the defendant's vehicle until it in fact collided with the righthand side of Mr. Vocisano's vehicle. There was no evidence from which a conclusion of excessive speed on the part of either party could be drawn. Both vehicles were driven to a position a short distance away where they could be conveniently brought to a halt.

4. The defendant gave evidence in the plaintiffs' case. He said that he noticed the plaintiff's vehicle some thirty to fifty metres away when he was about to make a righthand turn from the lane second from the median strip. I am satisfied that the defendant assumed that there was no danger of collision with the oncoming vehicle at that initial stage. The defendant said in evidence that he thought or believed that he had the green arrow to make a righthand turn. Leaving aside for a moment whether he was correct in his belief, I am satisfied that the defendant allowed his attention to wander from the oncoming vehicle until the collision was unavoidable. By that stage, as the defendant said, he applied his brakes but it was too late and there was a collision in which the driver's side front of the defendant's vehicle was damaged and the whole of the driver's side of the plaintiff's vehicle was damaged. If the defendant's belief is correct, there must have been a red light facing Mr. Vocisano as he drove through the intersection and it would be difficult to conclude that the collision was caused by any want of reasonable care on the part of the defendant. Before I decide the issue of the state of the traffic lights at the relevant time, I think it is desirable to refer to some other issues in the case.

5. It was submitted on behalf of the defendant (in contrast to what the defendant himself said in evidence, to which I shall refer in a moment) that Mr. Calabria was not present in Mr. Vocisano's vehicle at all at the time of the collision. The evidence of each of the plaintiffs that he was in fact present and sitting next to the passenger's door with Mrs. Vocisano between him and the driver is evidence upon which each of the plaintiffs cannot be mistaken. If that evidence is untrue then it must be deliberately untrue. Some doubt as to the presence of Mr. Calabria was raised by the evidence of Constable Hatty based on notes which are made upon an official road traffic accident report. The report includes a section bearing the heading "Witnesses (include passengers but not drivers/riders)". Under that heading appears the entry "Elizabeth Vocisano, passenger in V1, H/wife". There is no reference to Mr. Calabria at all. I am satisfied that Constable Hatty has some independent recollection of the incident, apart from what he noted, because he said that a day or two later he received a telephone call and was asked why there was no reference in the report to a third occupant of Mr. Vocisano's vehicle. I draw the conclusion that Constable Hatty was not aware of the presence of any such third person at the time he made his enquiries at the scene of the accident some few minutes after it occurred. I note that another policeman, acting Constable Buxton, attended the scene also. He did not give evidence but I draw no conclusion from that one way or the other in the circumstances. Constable Hatty said that he took particular care in enquiring and recording the number of occupants in the vehicles because there was a particular police instruction to that effect, but on the other hand he conceded, quite fairly, that there could have been two persons in Mr. Vocisano's vehicle besides the driver. He did not make any inspection of the interior of that vehicle.

6. Most importantly, I think, on this issue as to the number of occupants, was the evidence of the defendant himself, because the defendant said quite freely in cross-examination that his memory had always been that there were three occupants of the other vehicle. He was cross-examined about a previous statement that he had made in April 1985 in which he had stated that "there were two passengers in the other vehicle". When that prior statement was put to him he agreed that it was possible that he had said that. He was then asked:

"Well, you had some doubt as to whether there were

two or one? --- There was definitely at least two.
I still believe there was three."

7. It should be observed here that there is some possible confusion between assessing the number of occupants and assessing the number of passengers. If the plaintiffs' evidence is to be believed, it is true that there were two passengers and only two passengers. The third occupant was, of course, the driver.

8. In the light of this and in the light of all the other evidence which I have considered before determining this particular issue, I find that Mr. Calabria was in fact travelling as a passenger in Mr. Vocisano's vehicle at the relevant time.

9. Having made that finding, I am more confident in accepting at least some of the rest of the evidence of the plaintiffs. I accept their evidence that as they proceeded through the intersection there was a green light showing in Mr. Vocisano's favour. The evidence of each of the plaintiffs on that subject matter was clear, whereas the evidence of the defendants was simply as to a belief he held at the time. In my view that belief was mistaken. The defendant failed to make his righthand turn in the path of oncoming traffic with safety and failed to keep a proper lookout. In that regard he was guilty of negligence and there will be a finding in favour of each of the plaintiffs on the issue of negligence.

10. With regard to contributory negligence I am satisfied that Mr. Vocisano, in failing to see the defendant's vehicle at all prior to the collision, was himself guilty of a failure to take care for his own safety. He was not entitled to disregard the possibility that an oncoming vehicle might be in the act of turning right into Marcus Clarke Street as he was himself entering the intersection. I am satisfied that Mr. Vocisano failed to keep a proper lookout. His failure is perhaps less serious where the other vehicle was turning across his path from the lane which was second from the median strip than it might have been if the other vehicle were turning from the lane especially provided for righthand turning vehicles, but nevertheless some deduction has to be made in Mr. Vocisano's case for contributory negligence.

11. The other issue in relation to contributory negligence is the allegation on behalf of the defendant that none of the plaintiffs was wearing a seatbelt. This allegation is based on statements made allegedly to doctors. Each of the plaintiffs maintained in evidence that he or she was wearing a seatbelt. There is nothing in the police report about seatbelts and Constable Hatty was asked nothing about seatbelts. There was no suggestion on behalf of the defendant that Mr. Vocisano's vehicle lacked seatbelts, and I conclude that the vehicle was provided with seatbelts. Mrs. Vocisano said that she was wearing a lap type seatbelt and Mr. Calabria indicated that he was wearing a lap sash type seatbelt.

12. None of the plaintiffs speaks good English. Mr. Calabria virtually speaks no English and gave his evidence through an interpreter. It is necessary to look at the evidentiary material upon which the defendant's claim is based. Mr. and Mrs. Vocisano attended the Calvary Hospital on the afternoon of their injury and were sent home after a short time. They next obtained treatment by consulting the family doctor, Dr David Jarvis, on 17 August 1983. Dr Jarvis both supplied medical reports and gave evidence. In his report dated 6 September 1983 relating to Mr. Vocisano (exhibit M) he stated that the plaintiff told him that "he was not wearing a seatbelt but was not thrown out of the vehicle". In his report relating to Mrs. Vocisano (exhibit R) Dr Jarvis stated "she told me that she had not been wearing a seatbelt and had been thrown against her husband by the impact". In his evidence Dr Jarvis said when it was put to him that the plaintiff informed him that he was not wearing a seatbelt, "that is what I thought he told me, yes". Later in his evidence Dr Jarvis said that the plaintiff came to him on 24 February 1986 stating that the doctor had misunderstood what had been said previously about a seatbelt and that he, the plaintiff, had been wearing a seatbelt at the time. Dr Jarvis said that the plaintiff's knowledge of English was not good, that the plaintiff often had difficulty understanding what the doctor said to him and that it was possible that there had been some misunderstanding when the notes were taken on 17 August 1983. Dr Jarvis further said that both Mr. and Mrs. Vocisano were probably present together in his surgery on that date and that he would have examined each separately and taken a history separately. Dr Jarvis was not asked about misunderstandings between himself and Mrs. Vocisano but, in my view, her English is not as proficient as that of her husband, and the likelihood of misunderstanding between her and the doctor would have been greater.

13. Mr. Vocisano saw Dr Raymond Newcombe on 1 March 1984 at the request of Dr Jarvis and according to Dr Newcombe's report the history given was that on 12 August 1983 the plaintiff "was driving without a seatbelt in an old utility vehicle when there was a righthand impact collision". In his evidence-in-chief Dr Newcombe said that the information about driving without a seatbelt probably came from the report that he had from Dr Jarvis. In cross-examination Dr Newcombe said that he always asked patients whether they were wearing a seatbelt or not but that in situations where there was a problem of English he commonly accepted information from other sources and that his notes were silent on the point of the source of information.

14. Mr. Vocisano saw Dr John Calder on 10 May 1984 and the history obtained by that doctor was that "he was not wearing a seatbelt". In his evidence Dr Calder was not asked to give the source of the information but he said that normally he would report what the patient said. Dr Calder was in possession at the time of the report of Dr Jarvis of 6 September 1983. It is therefore possible that Dr Calder obtained his information from the report.

15. I observe that Mr. Vocisano was asked in cross-examination about what he had said to Dr Cassar about a seatbelt, but Dr Cassar did not give evidence in Mr. Vocisano's case. No evidence or report relating to the statement by Mr. Vocisano to Dr Cassar about a seatbelt is before me in any way apart from the plaintiff's sworn denial that he told Dr Cassar that he had not been wearing a seatbelt. I must observe also that the evidence about any statement by Mr. Vocisano to another person relating to seatbelt is relevant only as an admission and therefore cannot be taken into account in the cases brought by the other two plaintiffs.

16. In the end I am not satisfied that the defendant has discharged the onus of showing that any of the plaintiffs was guilty of contributory negligence by reason of failure to wear a seatbelt. I am simply not satisfied that there was such a failure. There is no evidence that the vehicle lacked seatbelts. I conclude that the vehicle was equipped with the seatbelts described by Mrs. Vocisano and Mr. Calabria. There is no reason why any of the plaintiffs should not have been wearing the seatbelt provided. I am not satisfied that the original recording by Dr Jarvis of a statement by Mr. Vocisano that he was not wearing a seatbelt was brought about otherwise than by way of misunderstanding. I am not satisfied that there was an independent account relating to seatbelts given to Dr Jarvis by Mrs. Vocisano. I am not satisfied that the other doctors to whom I have already referred, who have notes relating to the lack of seatbelts, have not based their notes on Dr Jarvis' report.

17. In the circumstances I think that 10 per cent is an appropriate deduction having regard to Mr. Vocisano's contribution to the events which led to his injury. No deduction, of course, is to be made in the case of the other two plaintiffs.

18. I turn now to seek to assess the damages in the case brought by Mrs. Vocisano.

19. The plaintiff, Elizabeth Vocisano, was not an impressive witness whilst in the witness box and the impression was reinforced by the other evidence relating to her claim. After the police had conducted their enquiries into the accident at the scene, Mr. Vocisano drove Mr. Calabria home and he and his wife then went to their own home at Hawker. At that stage Mrs. Vocisano says that she was feeling pain in the back of the right shoulder and down the right arm as well as headache and shock. She and her husband then went to the Calvary Hospital. Bruising of the right arm was observed there but no other abnormal signs. Warm packs and analgesics were prescribed. The plaintiff did not improve and she went to see Dr Jarvis with her husband on 17 August 1983. Dr Jarvis received complaints of headaches, low back ache and pain in the right shoulder and arm. There was some stiffness on movement of the neck and inability to raise the right arm. The plaintiff underwent physiotherapy, for how long it is not clear, but it was complete within three or four weeks. When reviewed by Dr Jarvis on 6 September 1983 Dr Jarvis found the neck condition to be normal and that she had almost full mobility in the right shoulder. According to the plaintiff, however, she did not improve and she was referred to Dr Richard Vance who examined her on 28 November 1984. She then complained of continuous pain in the shoulder region, worse after exertion associated with headaches and extending down towards the wrist. On examination there was slight restriction of movement of the neck in all directions, but full and free range of movement in the shoulders. X-rays disclosed no abnormality. Dr Vance formed the view that there was a slight degree of pain experienced by the plaintiff upon exertion, the precise cause of which was obscure. His prognosis that the complaints would become less rather than more severe in the future was not borne out by his re-examination some eighteen months later on 4 February 1986 when the plaintiff complained that her shoulder was much the same and she experienced pain especially after housework or gardening. She said that she had visited a physiotherapist again without benefit. Dr Vance thought that the plaintiff's symptoms had not altered and he did not alter his conclusions. However, it must be observed that on the second consultation it was the neck that displayed a full and pain free range of movement and the shoulder which appeared to give some slight pain upon movement, the reverse of what had been found to be the situation upon the first consultation. It should also be observed that on the second occasion the plaintiff was complaining of continuous headaches.

20. Mr. Vocisano was asked questions as to his observations of his wife and said that although she complained from time to time especially at night of pain in the right arm and shoulder, she carried out a full range of household activities including gardening. Obviously, Dr Vance's view expressed as at 6 February 1986 depended upon acceptance of the plaintiff's complaints as genuine. In my view the plaintiff was greatly exaggerating her symptoms when she gave evidence and I am not convinced that there was an absence of exaggeration when she described her symptoms to Dr Vance. I am not convinced on the balance of probabilities that the plaintiff experienced other than minimal pain in the neck or right shoulder beyond the end of 1984. There was probably some element of shock which probably persisted and had the effect of causing headaches aggravating pain generally for a few weeks immediately after the collision. Thereafter until the end of 1984 the plaintiff, I conclude, felt or at least thought she felt pain sufficient to justify physiotherapy, massage and medication, but I am not convinced that the pain was other than slight. Out-of-pocket expenses are agreed at $289 and there is no claim for loss of earning capacity. I think that an award of $6,000 general damages is adequate to compensate Mrs. Vocisano for her injuries. Interest is claimed and awarded on the whole of the general damages at 14 percent per annum and reduced by half and calculated at $1,225.

21. I turn now to the claim brought by Mr. Calabria. He is now aged nearly 80. He had been retired for about twelve years at the time of the accident. Mr. Rappel from the Parks and Garden Service gave evidence as to how active the plaintiff was prior to his retirement, which evidence I accept entirely but it has little bearing on the case. Unlike the other two plaintiffs, Mr. Calabria did not attend the hospital on the day of the accident. Perhaps he would have done so if somebody had offered him a lift. He did, however, go to see Dr Nancy Griffiths at Red Hill on 16 August 1983 and according to the doctor's report showed typical signs of a whiplash injury. The doctor does not say what those typical signs were or are. Analgesic tablets were prescribed together with a mild sedative. When seen again on 22 August 1983 Dr Griffiths formed the view that Mr. Calabria's "pains were still very much apparent" and he was referred to Dr Cassar. Dr Cassar supplied a report and gave evidence. I gather that he conversed with the plaintiff in his native tongue. Whereas Dr Griffiths appeared to have obtained a history that the plaintiff had pain sufficient to keep him in bed for three days after the injury, Dr Cassar was told that the plaintiff did not suffer stiffness and pain in the neck until some forty-eight hours after injury. The plaintiff's complaints to Dr Cassar were further that there was severe pain in the neck for some two weeks after the injury but that the symptoms subsided to what they were at the time of the consultation which was on 12 October 1983. Dr Cassar had x-rays taken which showed degenerative change at the C5/6 disc level with nerve root narrowing on the right side. Dr Cassar felt that the accident had aggravated the degenerative condition and that the consequent discomfort and stiffness would last the plaintiff for the rest of his life. However the degree of disability was considered to be minimal, and the plaintiff's lifestyle would not be affected. The doctor's views were not changed upon further examination in February 1986. The plaintiff's own evidence really went no further than confirming the evidence of Dr Cassar. The plaintiff continues to be an active man for his age particularly in the garden. Films were shown which appeared to me to indicate a man who moved slowly and carefully but who did not appear to be in any pain. The garden in which he was shown to be working appeared to be particularly well kept. The plaintiff himself said that he was sometimes forced to suspend activities in the garden because of pain which can occur after unpredictable periods of as little as ten minutes but he can garden for periods of up to three hours. Mr. Calabria gave his evidence through an interpreter. I did not gain the impression that he was exaggerating to any appreciable degree. I take into account that the injury caused him considerable discomfort for a period of two weeks or so and that it has continued to have some minimal affect upon him, but that any restriction or discomfort at the present time is overwhelmingly the result of degenerative change. Again there is no claim for loss of earning capacity. Out-of-pocket expenses are agreed at $161.40. I think that $8,000 by way of general damages is sufficient to compensate Mr. Calabria. Interest is awarded on the whole of that amount at 14 per cent per annum and reduced by half and calculated at $1,633.

22. In the action brought by Elizabeth Vocisano there will be judgment for the plaintiff for $7,514. In the action brought by Domenico Calabria there will be judgment for the plaintiff for $9,794.40. As agreed, the parties may apply to my associate for a date upon which to present argument as to damages in the action brought by Domenico Vocisano.