Janet Anne Bain and John Robert Bain v Joseph Emmanuel Stafrace [1987] ACTSC 32 (6 May 1987)

SUPREME COURT OF THE ACT

JANET ANNE BAIN and JOHN ROBERT BAIN v. JOSEPH EMMANUEL STAFRACE
S.C. No. 1151 of 1982
S.C. No. 1674 of 1983
Negligence

COURT

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

CATCHWORDS

Negligence - minor motor vehicle accident in parking area - inherent unlikelihood of aggravation of pre-existing disabilities - no new question of principle

Overseas Tankship (U.K.) Limited v. Morts Dock and Engineering Co. Ltd (The Wagon Mound) [1961] UKPC 1; (1961) AC 388

HEARING

CANBERRA
6:5:1987

ORDER

There be judgment for the defendant in both matters.

DECISION

These are two actions for damages arising out of a motor vehicle accident in a car park adjacent to Northbourne Avenue and London Circuit on 30 October 1980. The plaintiffs are husband and wife and by consent both actions were heard together. The wife's claim is for damages for personal injuries sustained in the accident. The husband's action is for loss of consortium. There is a serious issue of fact about the circumstances of the accident.

2. The wife's evidence was that on 30 October 1980 she was a passenger in the family Valiant motor car and her husband was the driver. They had been parked in the parking area and were driving out when there was a collision with the defendant's motor car. The wife said in evidence that when the collision occurred there was a loud bang, the Valiant went up in the air and down again. She said "God that jolted". She felt very jarred and noticed pain low in her back and in her neck. She also noticed that she had a headache. She hoped that nothing had gone wrong with her back. She did not get out of the motor car.

3. Her husband got out of the driver's seat and spoke to the other driver. The other driver said to her husband that there was not much damage, to which her husband replied that he was not worried about the car but was worried about the wife's back. After an exchange of certain particulars the plaintiffs went to the police station where the husband reported the accident. She did not go into the police station but stayed in the car.

4. In cross-examination about the facts of the accident, the wife plaintiff was very unimpressive. She was vague about the way their car had reversed out of its parking space. She said that in backing out of its parking space their car had moved backwards to the right and then straight ahead. It had only travelled five or six car lengths when the collision with the defendant occurred. The defendant's car had emerged from the same line of cars as their car. There was a bang and a jolt. She was lifted up and down in the collision. When her husband and the defendant were conversing they were to the rear of the Valiant car. Her husband was only out of the Valiant a matter of minutes. She could not recall seeing him make any inspection of the damage to the motor vehicles. She repeated that they drove directly to the police station to report the matter.

5. The husband plaintiff said that on 30 October 1980 he and his wife had been to their solicitor's office and they returned to their car in the car park. On entering the car he backed the car out, turned left and had travelled six or eight car lengths at about five miles per hour when the collision occurred. There was a noise and severe jolt which lifted the Valiant car in the air. It was a fairly violent movement of the car. He said that the impact occurred about the centre of the driver's side of the Valiant and the damage was low down on the round underskirt of the car below the driver's side door. The other vehicle which backed into them was a Toyota Celica coupe sedan. The two vehicles were engaged and the defendant drove the Celica forward causing the Valiant to drop down.

6. He said that he got out and spoke to the driver of the other vehicle. He himself was rather angry as he considered it a silly action on the defendant's part. He said that the defendant said that he was sorry, that he had had an argument with his business partner and was upset, and that there was not much damage. The husband looked at the Celica and noticed a scratch on the rear bumper bar on the driver's side. The Valiant car had a flattened area of underbody below the driver's door. The vehicle had previously been undamaged.

7. He said that the following conversation took place. He said "What's your name". The defendant produced his driver's licence and said that his name was Stafrace. The husband then took details of the defendant's name and said to the defendant "What do we do about the damage?" The defendant said "There's not much". The husband said "I am not worried about that. I am more concerned about my wife. She has a bad back". The defendant said "I am insured with NRMA". The husband said "Where do you live". The defendant gave an address in Hawker. The husband said "I am going to report this matter to the police."

8. The husband went on to say in evidence that he had the repairs done a reasonable time after the accident at a cost of $300-$400 but he was not sure whether that cost included the repair of some damage on the tailgate of the Valiant, unrelated to the subject accident. No quote, statement, invoice or receipt was produced in evidence.

9. In cross-examination the husband said that the Valiant had about a nine inch clearance from the roadway to the underneath part of the car and that it was higher at the back because it had heavy quality springs on the back. He marked on a photograph (which became part of Exhibit D) the place where he saw marks on the rear bumper bar of the Celica. He marked the rear bumper bar on the driver's side of the Celica. He said that he was stopped at impact, or almost so. After impact the vehicles were engaged, the rear of the defendant's vehicle was wedged hard under the driver's side door of the Valiant. He said that the speed of the Celica had caused the accident. It had moved six or eight feet from the line of vehicles where it had been parked.

10. The defendant's version in evidence was quite different. He said that on entering his Celica Hatchback motor car he reversed the car with his foot on the brake pedal. The car had only moved three feet when he felt a jolt. He got out of his vehicle and observed the damage. He saw that there was a slight white scratch mark on the rear bumper bar of the Celica on the passenger's side, measuring about 2 1/2 inches long by 1/4 inch wide. On the Valiant he observed a black equivalent sized mark on the rear mudguard about 3 inches by 1/4 inch. He also observed a large dint on the wheel just above the scratch mark.

11. He said that the other driver asked him for his name, address and insurance company and that he showed him his licence and said "NRMA". There was no further conversation. He got back in his vehicle and drove away. He said that he had seen the other driver write something down but there was no conversation about the damage to the motor vehicles and no conversation about the wife's back or reporting the matter.

12. He agreed in cross-examination that he had not seen the Valiant before he came into contact with it, that when the collision occurred he looked in his rear vision mirror and saw that the Valiant was stopped. The back rear panel of the Valiant was adjacent to the Celica. He had seen damage under the pillar on the driver's side. He said that the other driver did not introduce himself and was not particularly angry. Nor did he seem particularly concerned about the damage. He just requested the defendant's licence and insurance company.

13. The defendant denied that he said that he was sorry. He said that the other driver did not give him a chance to speak. He denied that the other driver had expressed any concern about his passenger. Nothing was said about the passenger being his wife or that she had a back complaint, or that he was going to report the matter. He himself did not have a chance to take the details of the other driver but he did not want to anyway. He did not incur any cost in repairs.

14. He said that if the Valiant had been lifted in the air he would have felt the jolt. All he felt was a bump and he drove forward again and stopped. He did not even know that the other vehicle was a Valiant.

15. He said in re-examination that the damage that he had noticed to the skirting was about one foot square and he observed dirt, rust marks and paint missing in the area.

16. A copy of a police accident report was put in evidence by the plaintiff. It records the date and place of the accident, the identity of the drivers of the motor cars and that there were no casualties. In addition there were two photographs of a Toyota Celica Hatchback in evidence. Those photographs show that the rear bumper bar on a Toyota Celica Hatchback is much higher than 9 inches or so from the ground. The inference urged on behalf of the defendant is that the damage to the underskirting below the driver's side door of the Valiant could not have been caused in the collision as alleged by the plaintiff husband, and that the Valiant could not have received a jolt sufficient to cause any aggravation of the plaintiff wife's back and neck problems.

17. I think there is much force in this submission. In areas of conflict between the two plaintiffs and the defendant about the circumstances of the accident I accept the evidence of the defendant and reject the evidence of the plaintiffs. Nevertheless, this does not dispose of the matter.

18. The plaintiff wife's case is that by reason of the jarring she sustained in the accident, which undoubtedly occurred, she suffered a severe aggravation of her back and neck conditions. The defendant's case was that it was a very minor accident and could not have caused any difference in the back and neck conditions of the plaintiff, which pre-existed the accident.

19. It was common ground that the plaintiff had serious disabling disabilities in the neck and back before the subject accident. She suffered an injury to her back on her way to work at Parliament House, Canberra, some time about 20 September 1974. She was treated with anti-inflammatory drugs and was referred by her general practitioner, Dr L.R. Quach, to Dr A. Cairns, orthopaedic surgeon, on 5 May 1976. He continued to treat her throughout 1976. She had two periods in hospital at the end of 1976 and early 1977 and on 16 January 1977 she had a fusion of her spine at L5/S1 level. By the end of 1977 she had recovered sufficiently to pursue most normal activities with the exclusion of those necessitating increased strain upon her spine or repetitive bending or lifting.

20. In his report of 19 December 1977 Dr Cairns expressed the opinion that the plaintiff wife would suffer intermittent pain or discomfort in the region of her low back related to activity in the future. By March 1978 she had developed neck problems. In his report to Dr Quach dated 2 March 1978 Dr Cairns said that her neck troubles had succeeded in pushing her low back complaint into the background "for the present".

21. She was referred to Dr Alistair Robson, neuro-surgeon, in 1978. She was then complaining of pain in the neck which spread to the shoulders and hands and trouble also with her low back. She had reported to Dr Robson that she had had these troubles on and off since her fall in September 1974. In his report of 7 May 1982 Dr Robson said that further investigations in March 1978 would have disclosed disc trouble then and that he had discussed with her whether she wished to go ahead with those investigations. As a result of the injuries sustained in the September 1974 fall the plaintiff had been accepted as being totally incapacitated for work and since that date she has been on workers' compensation.

22. She agreed in cross-examination that in 1978/79 she had been advised that she would never work again. At that time her complaints were of pain in the neck and shoulders, low back pain and depression. That the plaintiff wife continued to suffer pain and disability in her neck and low back between 1974 and the accident in 1980 clearly emerged in her evidence in cross-examination. She said that in 1974 her back was her major problem but her neck also gave her problems. She said that her back was more severe than her neck. She was suffering headaches but the doctors told her they were tension headaches. After her operation in 1977 she continued to have headaches and neck pain radiating into the shoulders.

23. The 1977 operation improved her back pain but by 1978 when she saw Dr Robson her neck pains had become more serious. She confirmed that she had had neck pains since 1974. They used to wake her up with a bad headache. There would be flare-ups of neck and shoulder pain after exertion, pins and needles in the hands and those symptoms continued into 1979. Her symptoms were such that she avoided housework like vacuuming and heavy cleaning. If she did them, she would get pain. She agreed that as at October 1980 she was unemployable as she would not have been able to sit and answer telephones.

24. With regard to the onset of symptoms after the accident, the plaintiff wife said that she went home, took pain killers and lay down. It appears that she saw her general practitioner, Dr Quach, some 17 days after the accident. She just lay around not able to do anything for herself without her husband's help, her back and neck were painful, she had headache, her left leg was painful and she could not move it properly. Dr Quach arranged for her to go to hospital and she came under the care of Dr Cairns. She was put in traction in hospital and was very distressed. She spent two weeks in hospital and then went home. She could walk around again but was still having a lot of pain in the lower back, neck, shoulders and left arm.

25. She saw Dr Robson in March 1981, had a myelogram in April 1981 and tried physiotherapy and heat treatment. She was getting a terrible lot of pain and discomfort in the neck, head and left arm. She also had pain in the lower back and her leg was "playing up". She had a second back operation on 21 October 1982.

26. It is a difficult question of fact to determine what symptoms and other consequences flowed from the fairly minor collision on 30 October 1980. In any claim based on negligence the plaintiff must establish that the defendant owed the plaintiff a duty of care, that the defendant breached that duty and that the plaintiff suffered some damage as a result of the negligence of the defendant. As Viscount Simonds stated on behalf of the Privy Council in Overseas Tankship (U.K.) Limited v. Morts Dock and Engineering Co. Ltd (The Wagon Mound) [1961] UKPC 1; (1961) AC 388 at p 425:

"It is, no doubt, proper when considering tortious

liability for negligence to analyse its elements and to
say that the plaintiff must prove a duty owed to him by
the defendant, a breach of that duty by the defendant,
and consequent damage. But there can be no liability
until the damage has been done. It is not the act but
the consequences on which tortious liability is
founded. Just as (as it has been said) there is no
such thing as negligence in the air, so there is no
such thing as liability in the air."

27. The plaintiff wife was examined by Dr J.R. Corry, rehabilitation specialist, on 26 July 1983. His medical report of 19 September 1983 which was in evidence (Exhibit B) supported the plaintiff wife's case in so far as he concluded that the plaintiff's symptoms "appeared to be significantly exacerbated by the motor vehicle accident in 1980 and following this further surgery was required on her low back and cervical spine". As stated in his report, Dr Corry relied on the plaintiff wife's account of the history of the injury of the accident which he states as "the car was struck in the front by a reversing vehicle".

28. This account of the accident is clearly inconsistent with the versions given by her husband and the defendant in evidence as well as her own account given in cross-examination, where she reluctantly conceded that the defendant's rear panel was adjacent to her own car, and not in the front.

29. Dr Corry re-examined the plaintiff wife on 2 October 1984 and again discussed with her the details of the accident including the defendant's version. She told him that the defendant's car "backed out from the parking lot at considerable speed striking the righthand side of her car . . . Her car was severely jolted about". Dr Corry goes on to modify his previous conclusion stating "that Mrs Bain did have an exacerbation, at least to some extent, of her degenerative spondylitis affecting her cervical and low lumbar spine". However, this conclusion is based not so much on the details of the accident as on the plaintiff wife's complaints of her condition before and after the accident. Dr Corry's impression was that "her present physical disabilities may not be that much greater than they were at the time of the motor vehicle accident".

30. In Dr Cairns report of 17 May 1982 to the plaintiff wife's solicitor he expresses the opinion that "it is extremely difficult to determine the difference in her (the plaintiff) pre-accident and post-accident condition".

31. Having considered all the medical evidence, in particular the medical reports and diagnosis of Dr Robson and Dr Cairns, made both before and after the accident, and taking into account the minor nature of the collision, I am not persuaded on the balance of probabilities that the plaintiff wife's disability was in any way exacerbated by the accident. Dr Corry's view to the contrary does not convince me. The case history given to him by the plaintiff wife was exaggerated. To my mind, the almost trivial nature of the collision was inherently unlikely to have aggravated the plaintiff's pre-existing condition.

32. Accordingly the wife's action fails and there must be judgment for the defendant. For the same reasons there must also be judgment for the defendant in the husband's action. I shall hear counsel on the question of costs.