Loris Maree Lujan v Michael Stuart Stanley [1986] ACTSC 74 (4 August 1986)

SUPREME COURT OF THE ACT

LORIS MAREE LUJAN v. MICHAEL STUART STANLEY
S.C. No. 68 of 1984
Negligence - Damages - Evidence

COURT

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

CATCHWORDS

Negligence - motor vehicle collision - plaintiff's vehicle entering intersection across unbroken white line - failure by defendant to keep proper lookout - contributory negligence.

Damages - minor injuries and depression - factors contributing to depression not all attributable to injury.

Evidence - weight to be given to medical opinion based on unproven assumptions.

R v. Fowler (1985) 39 SASR 440

HEARING

CANBERRA
4:8:1986

ORDER

There be judgment for the plaintiff in the sum of $17,587.81.

The defendant pay the plaintiff's costs.

The amount paid into Court be paid out to the plaintiff's solicitor in part satisfaction of the plaintiff's judgment.

DECISION

This is an action for personal injuries arising out of a motor vehicle collision occurring on 17 June 1983. The plaintiff was driving her car south in Coulter Drive and was turning left into William Hovell Drive. The defendant was driving his jeep east in William Hovell Drive and collided with the offside of the plaintiff's vehicle. The traffic was heavy. There was only one lane in William Hovell Drive for vehicles proceeding east. The defendant drew a sketch plan whilst he was giving evidence. The sketch plan was unchallenged. It shows a not unfamiliar type of intersection with traffic islands and merging lanes. The configuration is such that a vehicle proceeding south in Coulter Drive and wishing to turn left and eastwards into William Hovell Drive normally does so by means of what was referred to in the case as a merging lane. That lane, which is wide enough for a single line of traffic only, is laid out as a sweeping bend leading from Coulter Drive to William Hovell Drive in a more or less south easterly direction. It is separated by a raised concrete traffic island from that lane or those lanes in Coulter Drive which are used by vehicles proceeding south across William Hovell Drive. That lane or those lanes, used by southbound vehicles, intersect with William Hovell Drive at a right angle and I will refer to them simply as Coulter Drive proper. From the intersection with Coulter Drive proper to the eastern extremity of the concrete traffic island is a distance of some one hundred metres. The notional prolongation of the southern kerb of the concrete traffic island from its eastern extremity to a point where the prolongation meets the eastern kerb of the merging lane is a distance of one hundred and forty metres. That distance is marked on the road surface in the following manner. From the eastern edge of the concrete traffic island there are two unbroken white lines which proceed eastwards for one hundred metres. Those unbroken white lines are some two feet apart as they leave the traffic island but converge at some unspecified point. From the eastern termination of the unbroken converged white lines there is a further distance of forty metres marked by a broken white line. I conclude that in normal circumstances vehicles proceeding from Coulter Drive left into William Hovell Drive do so via the merging lane and cross that unbroken white line. It is possible for such vehicles to drive onto William Hovell Drive across the unbroken white line or lines, but to do so appears to be a breach of s. 116 of the Motor Traffic Ordinance 1930, and involves a divergence from the merging lane.

2. It is common ground that at the time the plaintiff's vehicle was struck, it was projecting at an angle into William Hovell Drive across the unbroken white line. Constable Smeltink established a point of impact on the roadway by reference to debris and conversations with the drivers. That point of impact was approximately one hundred and twenty metres from Coulter Drive proper, that is to say, about twenty metres east of the eastern extremity of the concrete traffic island. I am satisfied that the collision took place in that vicinity. What is really in dispute is whether the plaintiff's vehicle was stationary or moving at the time, and an ancillary matter, namely the distance between the plaintiff's vehicle and the vehicle immediately in front of hers.

3. The plaintiff claimed that her vehicle just prior to collision was facing at an angle of less than forty-five degrees to William Hovell Drive, but that only part of her vehicle, from about the driver's door onwards was projecting across the line. She said that the vehicles in front of her had stopped, and that she had her right indicator on to indicate that she would merge when the traffic proceeded. She said that whilst stopped she checked in her rear vision mirror, that there was nothing behind her, that she looked to her right and noticed an orange truck coming towards her at a high speed. Her vehicle was then struck by the oncoming truck. The windscreen was shattered, both windows on the driver's side of the car were shattered, the doors on the same side caved in and the central column likewise. The plaintiff claimed that prior to the impact she was stationary for about fifteen to twenty seconds.

4. Mrs. Tanja Eldering gave evidence that she had been driving eastwards in William Hovell Drive and that the traffic ahead of her in the area of the merging lane was slowing down and had stopped. She then noticed behind her a car which she said was "trying to nose in behind me at a very slow pace". At the same time she noticed a big red or orange truck near the intersection with Coulter Drive proper. The truck did not appear to slow down, it hit the side of the small white car behind her and then "straight up the back of my car", pushing the white car to the lefthand side and pushing Mrs. Eldering's car forward. Mrs. Eldering agreed when it was put to her in cross-examination that she started to become alarmed when the truck was two hundred metres away from her, and it was submitted that if this assessment on distance was likely to be wrong it could cast a shadow over the rest of her evidence. I agree that it cannot be accepted that she first noticed the defendant's truck proceeding at a high rate of speed at a distance of two hundred metres to her rear. However, this evidence was not volunteered by her, it was led from her in cross-examination, and the rest of the evidence relating to distance and the like would confirm, I think, that it was probable that Mrs. Eldering did first make her observations of the defendant's vehicle when it was about one hundred metres away. I do not think that I need necessarily reject the rest of her evidence because of her error on this particular point. In relation to the car immediately behind her, that is to say the car driven by the plaintiff, Mrs. Eldering was adamant that it was proceeding extremely slowly, and very close to having stopped. I accept her evidence on that point. Again, like the plaintiff, Mrs. Eldering did not give any assessment of distance between her vehicle and the plaintiff's vehicle at any time, although she did say that she could just see, presumably in her rear vision mirror, the righthand fender or nose of the plaintiff's vehicle.

5. The defendant gave evidence that he was proceeding at about fifty to sixty kilometres per hour when he passed the intersection with Coulter Drive proper. He then noticed that vehicles ahead of him were slowing down, and that there was a patch of mist or fog further ahead in that traffic. The closest vehicle to him was about forty to fifty metres away. He took his foot off the accelerator. His wife spoke to him, and he noticed for the first time the front of a white vehicle on the lefthand side of his vehicle a fraction of a second before impact. The front wheel or wheels of his vehicle then went on to the median strip, he pulled to the left and then collided with the vehicle that had been immediately ahead of him in William Hovell Drive. That vehicle was the one driven by Mrs. Eldering. The defendant estimated that it was some twenty to thirty metres from the collision with the plaintiff's vehicle to the collision with Mrs. Eldering's vehicle.

6. The defendant's jeep was towing a trailer upon which was situated the cabin of a truck which weighed about three hundred pounds. The plaintiff said that the defendant said to her immediately after the collision that he could not stop "because of the weight of the back of the truck" but I am not convinced that this was a factor which contributed to the collision with the plaintiff's vehicle.

7. The defendant was the most impressive of the three eye-witnesses. He was, moreover, frank in conceding that he did not see the plaintiff's vehicle until it was too late to take any avoiding action. By this concession negligence on his part was clearly established. Neither the plaintiff nor Mrs. Eldering gave any convincing evidence as to the distance between their respective vehicles and I accept the defendant's estimate that there was some twenty to thirty metres between them. I reject the submission put on behalf of the plaintiff that the glass and debris found on the road related to the totality of the two collisions. I also reject the evidence of the plaintiff that she was stationary with her vehicle projecting into William Hovell Drive for as long as fifteen to twenty seconds. That evidence is inconsistent with the evidence of Mrs. Eldering, which I accept, and what she said to Constable Smeltink.

8. I am satisfied that the collision occurred when the defendant, who had properly checked for vehicles on his left at the intersection with Coulter Drive proper had then looked ahead and allowed his attention to be concentrated upon the vehicles in William Hovell Drive without making proper allowance for vehicles which might have been about to enter William Hovell Drive from the merging lane. However, it is important, in my view, on the issue of contributory negligence to bear in mind that if the plaintiff had properly entered William Hovell Drive from the merging lane then the defendant would have been allowed appreciably more time to observe her presence. As it was, no doubt because of the exigencies of the traffic, the plaintiff entered William Hovell Drive not from the merging lane at all but at a point only twenty metres or so from the concrete traffic island, much less than half way along the unbroken white lines. It was submitted that the plaintiff's actions did not constitute a breach of s.116. Whether or not there was technically a breach is not for me to decide. What is clear is that a driver who allows a vehicle to cross an unbroken white line in such circumstances is put on notice that he or she is creating a situation of potential danger, particularly on the day in question when the traffic conditions were heavy, and when on the evidence there was nothing to indicate to eastbound drivers in William Hovell Drive that they did not have right of way. It was, in my view, a substantially hazardous manoeuvre for the plaintiff to seek to enter William Hovell Drive where the evidence establishes that she did so. In other words she failed to take care for her own safety in relation to other vehicles which might be expected to be proceeding eastwards in William Hovell Drive. It was submitted further, however, on behalf of the plaintiff that her driving did not contribute in any material sense to the collision firstly because she had been stationary for some fifteen to twenty seconds before impact and secondly because the defendant simply did not see her at all until the impact. According to Constable Smeltink, the plaintiff stated in answer to enquiry as to her vehicle's movement prior to the accident that it had been accelerating, although he appeared to modify this somewhat in cross-examination when he said that "she stated to me that she had been proceeding normally albeit slowly just prior to the accident". I therefore come to the conclusion that immediately prior to the impact the plaintiff's vehicle was either moving or had been stopped for a very brief period of time only. As to the defendant's failure to observe the plaintiff, I have already said and I accept that his attention was drawn to the vehicles ahead of him which were stopping or stopped and in these circumstances it seems to me that the late emergence of the plaintiff in William Hovell Drive across the unbroken white lines about twenty metres east of the concrete traffic island was a material contribution to the collision itself and one which involved a substantial failure to take reasonable care for her own safety. I would regard it as just and equitable to reduce the plaintiff's damages for contributory negligence by 20 percent.

9. I turn now to the question of damages. The plaintiff was born on 10 July 1941. She was a school teacher by occupation at the time of her injury. She married in 1965, but subsequently divorced and was a single parent with three school children at the time. She felt dazed and shaken immediately after the injury but was able to give an account of it to the police officer. She drove the vehicle to her brother's home nearby and then went on to school. She there felt stiff and sore and upset and she was driven by some colleagues to the Woden Valley Hospital. Although she said in her evidence that she was sore on the knee, shoulder and side of the head, those complaints are not recorded in the Woden Valley Hospital report. Examination there showed normal pulse and blood pressure and the only sign of external injury was a superficial abrasion over the right knee. The plaintiff was allowed home without medication. However over the next couple of days her leg was sore and stiff and she had headaches on the righthand side, which she said she never had before, and she went to see her local practitioner, Dr Foo. She was found by Dr Foo to be tender over the right temporal region, the right shoulder and the chest wall on the right side. There was some pain on movement of the neck to the right and he noticed the small abrasion on the right knee. Dr Foo's succinct report dated 17 April 1984 states that "full recovery was delayed by severe emotional and stress symptoms resulting from the accident". Dr Foo's notes which are in evidence show that she consulted him on 27 June 1983 complaining of headaches and tiredness, that she went back to work the day before consulting him again on 5 July 1983 and she was again complaining of tiredness and anxiousness. She was also complaining of central chest pain and palpitations, a matter to which I will refer in a moment. She was again certified unfit for work. There was a further consultation with Dr Foo on 14 July 1983 with similar complaints and Dr Foo's views appear to have been that she was unfit for work as a result of the car accident until 31 July 1983.

10. The plaintiff said in her evidence that she still had trouble in her knee, chest, shoulder and neck for about two months after she went back to work. As far as headaches were concerned she said these lasted for about two and a half years and she suffered them daily. The most important aspect of the plaintiff's claim was that she said that she became anxious and depressed during the period of the two and a half years with a detrimental affect on her family and social life. Her children at that stage were aged 15, 13 and 12. The plaintiff was a physical education teacher and said that she was unable to carry on her interests in swimming, squash, tennis, playing the guitar, reading and art work.

11. For an educated and articulate woman, the plaintiff was remarkably reticent in her evidence as to her depressive condition and her alleged disabilities. She was more expansive in what she told Dr William Knox and Dr Ian Robbie, both psychiatrists, and each retained by the plaintiff and defendant respectively to examine the plaintiff in respect of her alleged depressive condition. The plaintiff faces certain difficulties if she fails to present her case properly through the ordinary avenues of evidence. If she seeks to rely simply on statements by other people of what she has told them, she runs the risk that her case may simply not be convincing. More particularly, if the assumptions upon which the doctors base their opinions are not proved, then the medical evidence may be robbed of probative weight: see R v. Fowler (1985) 39 SASR 440, especially at p 442-3. On the other hand, if the material upon which the doctors have based their opinions is generally in line with what the plaintiff has said in evidence, it is open to the Court to accept their opinions. Moreover the plaintiff did call some corroborative evidence from her brother, Mr. O'Brien, and from a friend, Ms. Marilyn McConnell Twiss, who spoke as to the plaintiff's depressive condition. I accept their evidence. The plaintiff became very withdrawn and her social relationships deteriorated. Her ability to control her children and her confidence in that regard diminished for a time. Two matters, however, deserve particular consideration. First, the plaintiff's two sons had been having what was termed as "behavioural difficulties" prior to the 1983 accident and subsequent to the accident those difficulties increased at the same time as the plaintiff's depressive condition manifested itself. There was an issue raised during the case as to whether the plaintiff was entitled to blame the increase in the behavioural difficulties of the two sons on the accident but, in my view, it is not to the point to try to decide that particular question. What I think is to the point is that the defendant was required to take the plaintiff as she was found in her pre-accident domestic situation. If the difficulties facing the children themselves and the difficulties facing the plaintiff fed off each other (as I think they did), that, in my view, resounds in damages as against the defendant. Secondly, there were other factors which appear to have aggravated the plaintiff's anxiety and depression for which I think the defendant was not responsible. These included an antipathetic relationship between the plaintiff and one of the other teachers at the school. That difficulty and, indeed the difficulties as far as the boys were concerned, seemed to vanish when the plaintiff transferred to another school in mid 1985. There was also an aggravation of the domestic situation which related to the death of a neighbour. Again, in my view, that had nothing to do with the accident and any effect that it may have had upon the plaintiff's depressive condition is not something which resounds in damages. I accept the assessment of Dr Robbie that the plaintiff was, at the time of her injury, a tough-minded person, confident of her own abilities, whose pride and self-image were markedly affected by what emerged as her own vulnerability in the circumstances which followed the accident.

12. Another area that was explored in cross-examination was the state of the plaintiff's health prior to the injury. She claimed that she was in good health until that time. However, I am satisfied that this was not entirely the case, because she had on her own account in early 1983 been treated for a condition called giardia, a viral condition. The notes of Dr Foo show that the plaintiff had "flu" for two months prior to the end of September 1982. She was complaining of being very clogged in the head, of hoarseness in the throat and tightness in the chest. An entry for 24 March 1983 in the same notes makes reference to similar symptoms. However, I am not satisfied on the evidence that whatever the plaintiff may have been suffering from prior to the accident in June 1983 was a condition which would have recurred or continued into the post accident period.

13. The defendant also sought to make out a case that the plaintiff's post accident stress and anxiety were aggravated by a worry as to a possible cardiac condition and possible cancer of the cervix. The notes of Dr Foo show that the plaintiff had a pap smear on 5 December 1983 which was repeated on 28 May 1984 with abnormal results. She was referred to Dr Armellin. The notes indicate that Dr Armellin carried out a biopsy on 28 August 1984 together with curettage and diatheramy. The plaintiff, however, denied that she was ever told that there had been a positive diagnosis of carcinoma of the cervix, and I accept her denial.

14. In February 1985 the plaintiff was referred by Dr Armellin to Dr Peter French, a cardiologist, because of her chest pains and palpitations as well as emotional upset. The plaintiff complained to him that the palpitations were made worse by emotional upset. Dr French's report states that the plaintiff was "not overly concerned that she may have significant heart disease, but is more concerned that these symptoms have persisted for so long and are affecting her lifestyle". Dr French suggested or ordered further tests but I do not know the result of these. That is not to say that they may not appear somewhere in the medical records. I note that on 11 November 1985 and on 4 February 1986 there are notes in Dr Foo's records indicating that the plaintiff was complaining of aches and pains and stress. She was in fact given time off for a week on the last occasion and counselling was recommended.

15. Despite the somewhat confused general picture I am prepared to accept on the evidence that the plaintiff's depressive condition may be attributed to the results of the injury until the middle of 1985, that is to say for a period of two years after her injury. If that depressive condition was aggravated by worry about cancer or heart disease or both, I do not think that on the whole of the case the defendant can escape liability for the total depressive condition during the two year period. Thereafter, however, I am not convinced that the effect of the injury continued. As far as chest pain and the like is concerned, I am not convinced that this was due to anything other than the suspected cardiac condition, and the defendant is not liable for it. I think it likely that at the end of the two year period the positive features of the plaintiff's personality regained control to a large extent, and that any apparent changes in personality since then, contrasted with her pre-injury disposition, have not been shown to be due to the injury. The depressive condition whilst it lasted, particularly during the first eight months or so did involve a substantial amount of loss of enjoyment of life. It is to be noted that at no time did the plaintiff seek psychiatric treatment or assistance although at one time it was suggested to her. I think that that probably had something to do with her perception of herself. I think in all the circumstances an appropriate award for general damages would be $16,000, the whole of which is in respect of the past and attracts interest. Loss of wages are agreed at $2,402.88 and out-of-pocket expenses at $110. The total damages are reduced by 20 percent for contributory negligence to $14,810.31. The plaintiff was injured on her way to work and she possibly received worker's compensation. I need to know how much she received so that interest can be calculated unless it can be agreed. I shall stand the matter over for further consideration to a date to be fixed.