Robert Barr Fisher v Sharon May Hannaford [1987] ACTSC 22 (31 March 1987)

SUPREME COURT OF THE ACT

ROBERT BARR FISHER v. SHARON MAY HANNAFORD
S.C. No. 69 of 1984
Damages

COURT

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

CATCHWORDS

Damages - claim for personal injuries - no question of principle.

HEARING

CANBERRA
31:3:1987

ORDER

There be judgment for the plaintiff in the sum of $28,965.70.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 15 August 1983. At about 5.55pm the plaintiff was driving his 1972 Austin sedan, registration No. NSW LMG 385 in a southerly direction along Ashley Drive, Gowrie, approaching the intersection of that street and Statton Street. At the same time the defendant was driving motor vehicle registered No. NSW LWI 717 in a westerly direction in Statton Street approaching the same intersection. The vehicles collided near the centre line of Ashley Drive and within the intersection.

2. The plaintiff sues the defendant in negligence, particulars whereof are pleaded as follows:

(a) Failing to keep any or any proper lookout.

(b) Failing to keep her motor vehicle under any or any
proper control.

(c) Driving her motor vehicle at a speed which was
excessive in all the circumstances.

(d) Failing to sound any warning of the approach of
her motor vehicle in accordance with the
provisions of Section 136 of the Motor Traffic
Ordinance 1936 as amended.

(e) Driving or attempting to drive across the path of
the plaintiff's motor vehicle when there was
neither time nor space to do so.

(f) Failing to apply the brakes on her said motor
vehicle in time to avoid the said collision or at
all.

3. By her defence the defendant has denied negligence and alleged contributory negligence against the plaintiff, particulars whereof are as follows:

(a) Failing to keep any or any proper lookout;

(b) Failing to maintain any proper control of his
motor vehicle;

(c) Driving at a speed which was excessive in the
circumstances;

(d) Entering an intersection without due care and
proper regard for the presence of other road users
in or about the said intersection;

(e) Failing to stop to slow down or to swerve or in
any other way so to manage or control the said
motor vehicle so as to avoid the said collision;

(f) Failing to warn the defendant of the presence of
his motor vehicle within the said intersection;

(g) Attempting to cross the path of the defendant's
motor vehicle when there was insufficient time or
space to so do with safety.

4. The intersection concerned is a T-intersection with Statton Street forming the leg of the T-intersection. At all material times there was a "Give Way" sign facing traffic travelling west in Statton Street, requiring such traffic to give way to traffic travelling either north or south in Ashley Drive.

5. Both the plaintiff and the defendant gave evidence. The plaintiff said that he was driving home from work with his sister as a passenger in the front seat. It was just on dark and the street lights were on. He had his own headlights on. As he went over a crest approaching the intersection he saw a car on his left in Statton Street. It appeared as though it was going to stop but then in the last 20 or 30 metres it kept coming. At that stage he was 30 metres or so back from Statton Street. The plaintiff decided to get out of the way of the other car and as there was nothing coming in the opposite direction he veered across to his right. At the same time he applied his brakes but a collision occurred. The front of the other vehicle collided with the lefthand front door of the plaintiff's vehicle.

6. In cross-examination the plaintiff denied that the other vehicle had stopped at the intersection and said that the first time he saw it was when it was actually entering the intersection. He maintained that he had applied his brakes before the collision actually occurred and that at the same time he was veering right on to his incorrect side of the road so as to avoid a collision. He fixed the point of impact as being somewhere about the middle of the intersection and across the centre line of Ashley Drive.

7. The defendant said in evidence that she had stopped at the intersection, looked right and, as there was nothing coming, she proceeded into the intersection. She agreed in cross-examination that she had not stopped at the intersection for long enough.

8. Senior Constable White of the Australian Federal Police investigated the circumstances of the accident at about 6.20 pm. He interviewed the defendant, who confirmed that she had been the driver of her vehicle in the collision. In relation to her speed prior to the collision she said that she was "just taking off". She could not assist the police officer about the speed of the plaintiff's vehicle. She said she had stopped at the corner, seen that there was nothing coming, started to go round the corner (meaning that she started to make a right-hand turn into the western carriageway of Ashley Drive), and that was all that she could remember. She said that she was just around the corner when she saw the other vehicle and although she knew that there was a "Give Way" sign there, she had not realised that if she entered the intersection there was a reasonable possibility that the two vehicles might collide. Asked to express an opinion about the cause of the accident she said "Me, I did not look long enough". Asked for how long she had looked to her right, she said "Maybe a second, maybe two". She said that she just did not see the other vehicle.

9. In my judgment the plaintiff has established that the defendant was responsible for the accident in failing to give way to the plaintiff's vehicle at the intersection. The reason she failed to give way was that she did not stop or slow down sufficiently; nor did she look long enough to ensure that there were no other vehicles approaching the intersection along Ashley Drive. I therefore find negligence on the part of the defendant.

10. With regard to contributory negligence, the defendant has not discharged the evidentiary onus. The evidence establishes that the plaintiff was travelling at about 35 mph, which was a reasonable speed in the circumstances, in the lane closest to the centre line of Ashley Drive and was keeping a proper lookout. It may be possible to criticise the plaintiff for veering to the right to avoid the defendant's vehicle and to say that the collision may have been avoided if he had veered left and allowed the defendant's vehicle to pass in front of him. In my view this is imposing upon the plaintiff a standard of perfection. He saw the defendant's vehicle and anticipated that it was going to stop. He proceeded towards the intersection without applying his brakes or lessening speed. That was a reasonable course of driving in the circumstances. Because the defendant did not stop or slow down sufficiently at the "Give Way" sign and did not keep a proper lookout, the collision occurred. I decline to find contributory negligence on the part of the plaintiff.

11. The injuries sustained by the plaintiff were a musculo-ligamentous strain of the spine extending from the neck to the lumbar region. He also sustained a bruise to the left leg consistent with a seatbelt bruise and a scratch on the left side of his neck. He suffered from headaches for about 6 months after the accident but these have now ceased.

12. Immediately after the accident the plaintiff drove himself to the Woden Valley Hospital but because there were too many people waiting for treatment he did not receive any treatment at the hospital and consulted his general practitioner, Dr D.G. Bradfield, the next day. He noticed that he had an ache in the sternum region, probably from the seatbelt, and his neck was a little sore. He also had soreness between the shoulder blades and mid-back. On the day of the accident he felt very uncomfortable and did not sleep that night. On Dr Bradfield's advice he purchased a neck brace and he went to work the next day.

13. At that time he was working for a firm known as Acclaim Gifts and Trophies. His job was to take orders from various sporting clubs and schools for trophies, assemble the trophies and engrave and deliver them. He also had to do the banking and things of that nature. When he went back to work the day after the accident he was not able to do any bench work. It was a great effort to walk up the stairs where the trophy shop was situated. He did not stay at work but went to a physiotherapist for an hour's session.

14. The next day he felt worse but he went to work. Apparently a new employee had started and the plaintiff was intending to give her sufficient instruction for her to carry on for a couple of days until he recovered from the effects of the accident. He intended to take two or three days off. During the day the proprietor's wife arrived from Sydney and after a brief discussion she instructed the plaintiff to go home and try and get some rest, which he did. When he reported for work the next day she told him that his services were no longer required. At that time he was feeling very sore and aching a lot. He was off work for the next seven weeks. He did not attempt to find any work during that time because he did not feel up to doing any sort of work.

15. He had been reviewed by Dr Bradfield on 22 August 1983 when he was still complaining of pain in the upper neck, upper thoracic area and lower back at the L2/3 level. X-rays of the spine and upper thoracic spine showed no evidence of any recent bony injury. He was treated with rest, analgesics, anti-inflammatory agents, a cervical collar and physiotherapy. Dr Bradfield referred him to Dr R.L. Newcombe, neuro-surgeon, on 28 September 1983.

16. On examination Dr Newcombe found mild restriction of lateral flexion of the neck and straight leg raising induced some low back pain. Otherwise there were no abnormal signs. Dr Newcombe diagnosed a musculo-ligamentous strain of the spine which he thought should settle with conservative management. At review by Dr Newcombe on 25 October 1983 the plaintiff was complaining of ache in the neck, especially on neck extension when driving his van, lumbar pain developing on walking, especially walking up and down stairs, and on attempting to mow a lawn. There was also a complaint of neck stiffness in the mornings. At that stage Dr Newcombe noted that there had been some improvement, but there were still some residual symptoms which he thought would progressively subside over the next few months.

17. The plaintiff continued to wear the cervical collar for about four months. On 20 October 1983 he commenced a part-time job with a small jewellery shop known as Sticks and Stones. His duties were mainly cataloguing stock, pricing new stock and re-organising jewellery displays. He was working 20-25 hours per week and remained in that employment until 30 June 1984. His salary was $150 net per week.

18. As there is an issue between the parties about whether the plaintiff was incapacitated for work during the period when he was employed on a part-time basis by Sticks and Stones, it is necessary to review the evidence on that subject. After he finished work at Sticks and Stones he did part-time work by way of assisting his wife in her TAB Agency. That was fairly light work, answering the telephone and putting out the dividends when the results came in. Asked whether he was able to do anything more vigorous at the time he said that after mowing the lawn on a Sunday he would be sore for the next two or three days. His own assessment was that he would not have been able to do any more work than he was doing for his wife on a full-time basis. He worked for his wife for about 36 weeks earning $50 per week.

19. He was reviewed by Dr Newcombe on 14 February and 23 October 1984. He complained to Dr Newcombe of backache and neck pain aggravated by prolonged driving, playing squash, gardening and walking up and down stairs. He told Dr Newcombe that standing at the counter and working a keyboard at his wife's TAB Agency in Phillip tended to produce some neckache. Dr Newcombe concluded that the musculo-ligamentous strain of the neck had improved, but that, although his general condition was stable and no further medical treatment was indicated, there was some continuing disability.

20. In October 1984 he obtained a job at a service station operating the console. In that job he was able to earn the sort of income he was earning at the time of the accident and there is no claim for any past loss of earnings from the time that he started at the service station to the date of trial.

21. So far as leaving Sticks and Stones is concerned, the plaintiff's evidence was that the proprietor of the business had indicated that she needed someone who was able to cope with the job better than the plaintiff was. The plaintiff said that the employment ceased by mutual agreement.

22. In addition to physical injuries the plaintiff became very irritable and, as his wife put it in evidence, "almost impossible to live with". There were sexual difficulties between the plaintiff and his wife because of the pain suffered by the plaintiff. According to her evidence he was very moody, insecure and threw quite a few tantrums. A few times he would threaten to leave and she would have to cool him down. The fact that his wife was bringing in all the income caused trouble between them. He felt that he was not earning anything and he provoked arguments which developed into yelling and screaming, then he would realise that he was wrong, say he was sorry and everything would settle down again. He is now coping better with family life as well as at work.

23. Dr John B. Truman, consultant psychiatrist, who examined the plaintiff on behalf of the defendant diagnosed the plaintiff as developing a mild to moderate reactive stress syndrome manifesting in irritability, sleep disturbance and anxiety.

24. The plaintiff and his wife had no social life for the first 18 months after the accident but that has now been restored. Before the accident the plaintiff was coaching minor league football but had to give that up because he was not able to run with the team and demonstrate various techniques. He also played social squash a minimum of twice a week but he had to give that up. He also played lawn bowls which he has resumed.

25. For two years after the accident he was taking medication. He underwent physiotherapy treatment 18 or 19 times. The treatment seemed to help in the short term. He still suffers from pain in the mid back area every day.

26. I am satisfied on the balance of probabilities that the plaintiff was totally incapacitated for work until he commenced work with Sticks and Stones on 20 October 1983 and was then partially incapacitated till he started at the service station on 10 October 1984.

27. The plaintiff was born on 7 January 1954 (now 33 years of age). He left school in 1971 and was married in 1981. After leaving school he did farm work for three years, then he was a teacher's aide and was employed at a bowling club at Lake Cargellico. He was awarded a teacher's college scholarship at Watson in Canberra and he taught for two years. He then worked in clubs until he took the job with Acclaim Gifts and Trophies where he was working at the time of the accident.

28. For pain and suffering, loss of enjoyment of life, inconvenience and all the other matters that I am required to take into account on the question of general damages, I provisionally assess the sum of $15,000.

29. With regard to past economic loss, I assess damages on the basis that the plaintiff was incapacitated for work for the first seven weeks after the accident. His salary at the time of the accident was $310 per week gross, or $250 per week net, totalling $2,790 gross. During that period he was paid workers' compensation and is liable to repay to his employer not only the net workers' compensation received, but also the income tax component. It is appropriate therefore to assess past economic loss for that initial period after the accident at $2,790.

30. While he was employed at Sticks and Stones from 20 October 1983 to 30 June 1984 he was earning $150 per week net, which is $100 per week net less than he was earning at the date of the accident. The plaintiff's claim set out in the Statement of Particulars filed pursuant to Practice Direction No. 5/1981 is that at the same time he was earning $50 per week on a casual basis with the wife's TAB Agency. However, I do not understand his evidence to be to that effect. When asked in evidence in chief whether he was working on a part-time basis while working for Sticks and Stones, he said that he was not and that he commenced doing casual work at the TAB Agency after he finished working at Sticks and Stones. In all the circumstances I think it is appropriate to allow him a loss of $100 per week for the period from 20 October 1983 to 30 June 1984 (approximately 36 weeks). I provisionally assess the sum of $3,600.

31. After 30 June 1984 the plaintiff worked for his wife on a part-time basis earning $50 per week, which is $200 per week less than he was earning at the date of the accident. I think it is reasonable to allow the plaintiff $200 per week for a period of 14 weeks until he commenced at the service station. I therefore provisionally assess the sum of $2,800.

32. Since 10 October 1984 the plaintiff has not suffered any economic loss. The total of the figures which I have provisionally assessed above is $9,190. To allow for contingencies I round that figure off to $9,000.

33. I am not satisfied that the plaintiff's ability to compete in the open market place has been adversely affected and I do not think it is appropriate to make any award for loss of earning capacity.

34. There is a claim for interest on general damages and past economic loss. For this purpose I apportion general damages in the ratio of $10,000 for the past and $5,000 for the future. Applying the interest rate of 14% to the aggregate of the $10,000 portion of general damages and past economic loss, i.e. $19,000, from the date of accident to the date of judgment and halving that amount in accordance with the usual approach, the figure yielded is $4,655. I round that figure off to $4,600.

35. Out of pocket expenses were agreed at $365.70.

36. My provisional assessments therefore are:

General damages $15,000.00

Past economic loss 9,000.00

Interest on portion of general
damages and past economic loss 4,600.00

Agreed out of pocket expenses 365.70
Total $28,965.70

Having considered that figure as a global sum I confirm my provisional assessments.

37. There will be judgment for the plaintiff in the sum of $28,965.70. I shall hear counsel on the question of costs.