June Lander v Commonwealth of Australia; Ottavio Bagozzi and Maria Bagozzi [1987] ACTSC 33 (8 May 1987)

SUPREME COURT OF THE ACT

JUNE LANDER v. COMMONWEALTH OF AUSTRALIA; OTTAVIO BAGOZZI and MARIA BAGOZZI
S.C. No. 443 of 1980
Negligence - Contributory Negligence - Damages

COURT

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

CATCHWORDS

Negligence - bus braked sharply at intersection to avoid collision - fall by plaintiff passenger who was standing in bus at the time - no new question of principle.

Negligence - motor vehicles - breach of Motor Traffic Ordinance 1936 s.124(1) - no new question of principle.

Contributory Negligence - facts as above - no new question of principle.

Damages - personal injury - soft tissue injury in cervical area of spine aggravated by anxiety and depression - other physical complaints not associated with injury - allegation that injury caused depression and breakdown of plaintiff's marriage - no predisposition to mental illness or instability on part of plaintiff - broad commonsense approach on question of causal relationship between injury and marital breakdown in circumstances of case - no causal relationship established - causal relationship established between injury and depression - consideration of contingencies that might have occured in any event.

Damages - personal injury - claim under principle in Griffiths v. Kerkemeyer - household services gratuitously performed by plaintiff's daughter for plaintiff and other members of household - plaintiff capable of carrying out light to moderate housework - claim allowed in part for plaintiff and youngest son aged 15 - Hodges v. Frost applicable.

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

Burnicle v. Cutelli (1982) 2 NSWLR 26

Hodges v. Frost [1984] FCA 98; (1984) 53 ALR 373

Cummings v. Canberra Theatre Trust (Federal Court of Australia, unreported, 18 June 1980)

Motor Traffic Ordinance 1936 s.124 (1)

HEARING

CANBERRA
8:5:1987

DECISION

This is an action for damages for personal injury. The plaintiff fell over whilst travelling as a passenger on an ACTION bus on 6 October 1977. She claims that the injury she received has had a catastrophic effect on her life.

2. The writ was issued on 13 March 1980 and defences were filed by the first defendant on 26 June 1980 and by the second defendant on 16 April 1980. A memorandum of close of pleadings was not filed until 10 September 1985. A certificate of readiness was filed on 21 May 1986. The hearing took seven days.

3. It is clear and there is no dispute that whatever the nature of the plaintiff's injuries they occurred when she was thrown to the floor of the bus owned and operated by the first defendant. The bus was travelling in the kerbside lane in a northerly direction in Callam Street, Phillip. The bus driver braked sharply in order to avoid a collision with a Ford Escort Sedan (owned by the second defendant and driven by the third party) which had emerged from the left in Neptune Street into the T-intersection formed by those two streets, Neptune Street comprising the leg of the T-intersection.

4. The rest of the material concerning the event is more contentious. However, I do not intend to set out the evidence in detail. It was given nearly ten years after the incident and it would be unlikely, to say the least, that the witnesses who spoke about the incident, namely the plaintiff, her then nine year old son, or the bus driver would have a very accurate memory of what happened. The car driver did not give evidence but she was in the precincts of the Court and available. The matter is not greatly assisted by the fact that the bus driver made two written statements, each to some extent conflicting with each other and with his sworn evidence, and each made several years after the event. It is ironic that counsel, understandably, had difficulty in addressing on the evidence in the absence of a transcript, when the issues have to be decided largely on the memory of witnesses as to events and conversations which happened so long ago that some of their evidence has to be regarded as quite speculative. However, it is upon that evidence that the decisions have to be made.

5. The plaintiff was a stranger to Canberra. She had come to stay for a few days at Wanniassa with her husband who was working temporarily in the area. On the day in question she wanted to go to the Woden Shopping Square (as it is now called). She caught a bus from an intermediate stop at Wanniassa. She had her two children with her, one aged nine and the other aged four. When she entered the bus there was a conversation between her and the driver. It is impossible to decide on the probabilities what was said. However, I am satisfied that she made known to the driver that she was a newcomer and that she wanted to get out at the Woden Shopping Square. I am also satisfied that the driver said something to her in order to convey the message that she would know when she arrived. The fact of the matter was that the bus was to terminate in any event at the interchange adjacent to the Woden Shopping Square. I am not satisfied that the driver told the plaintiff that he would tell her when she was about to arrive at her stop, nor that he in fact said anything to her during the course of the journey to indicate that the bus was approaching where she wanted to alight.

6. I find that on the probabilities there was a notice or there were notices in the bus which would have notified to a reader something about the danger of standing whilst the bus was in motion. I am unable to find whether such notice or notices contained any prohibition against standing or any particular warning. In any event, I am not satisfied that the content of such notice or notices came to the attention of the plaintiff.

7. I am unable to make any exact finding on the probabilities as to where in the bus it was that the plaintiff and her children were seated. I do find that the children sat in one seat and the plaintiff sat in another seat which was either immediately in front of or immediately behind the children. At some stage after the bus entered Callam Street from Hindmarsh Drive and before the incident, a distance at the most of about 300 metres, the plaintiff stood up in the expectation that she was about to arrive at her destination. One of her children also stood up. I find that the plaintiff had hold of the horizontal rail at the top of one of the seats immediately adjacent to her. She was in that position for not more than a few seconds at the most before the bus braked sharply.

8. After the plaintiff and her children had become seated on the bus at Wanniassa, the driver gave no attention to her particular position or situation until just after he turned the bus from Hindmarsh Drive into Callam Street. He then checked in his rear vision mirror. He stated positively that he saw the plaintiff seated on the left at the rear of the bus. His evidence of the exact position of the plaintiff conflicts with the evidence of the plaintiff and I do not accept it. However, I accept that he noticed no one standing in the bus.

9. There were normally three lanes for north bound traffic in Callam Street. On this particular day, however, due to some roadworks, what would normally have been the lane furthermost from the kerb, or the third lane for north bound traffic, had been marked off from the other two north bound lanes by the fixing of "witches' hats" to the road surface in order to allow that third lane to be used for south bound traffic. There were, as a result, only two lanes for north bound traffic on that day. After the bus turned into Callam Street the driver became aware of a vehicle travelling in the second lane, somewhat to his rear. It is not clear exactly where that vehicle was in relation to the bus when the driver first became aware of it. As the bus proceeded in the kerbside lane, the bus driver did not have a view of the intersection with Neptune Street until he was approximately forty to fifty metres from it. I am not satisfied that that view of the intersection was obstructed in any significant way once the bus was forty to fifty metres from it. The view into Neptune Street, however, was obstructed by the NRMA building which occupies the site on the southwestern corner of the intersection, and also by some vegetation. This consisted of some bushes or shrubs growing more or less against the building and also of potted trees or shrubs. I do not accept the bus driver's evidence that these potted trees or shrubs were in the middle of the footpath. It is likely that they were closer to the building.

10. In the result the bus driver's view into Neptune Street when he was forty to fifty metres from the intersection did not extend beyond or indeed as far as the northern prolongation of the building alignment from NRMA House across Neptune Street. I am satisfied that the driver did not notice the Ford Escort until it was virtually within the intersection. The driver was, in my view, confused about what he called in evidence a "give way line", a line which may or may not have been painted on the surface of Neptune Street more or less adjacent to a give way notice facing vehicles proceeding eastwards in Neptune Street towards the intersection. He was unsure in his evidence as to whether a broken white line which, according to photographs, is now painted on the surface of Neptune Street at the prolongation of the kerb alignment, was in existence at the time of the incident.

11. At the time of noticing the other vehicle the bus driver was proceeding at a speed of about forty to fifty kilometres an hour. The speed limit was sixty kilometres per hour. I am not satisfied that the speed in itself was excessive. However, in the light of the reduced number of lanes for north bound traffic in Callam Street and the stated speed of the bus driver, it is important to try to determine exactly what happened when the bus driver became aware of the Ford Escort, bearing in mind again that he did not see it until it entered the intersection. According to his evidence the sequence of events was as follows. He checked in his rear vision mirror the position of the vehicle in the second lane of which he had previously become aware. He stated in evidence that that vehicle was "alongside the bus". He formed the conclusion that it would be dangerous to move the bus into the second lane. He then checked in his interior rear vision mirror and saw someone standing in the aisle of the bus. He then gave his attention to the Ford Escort which by then had come to a halt ahead of him in the kerbside lane. By that stage the bus was only twenty metres or so from the Ford Escort. He then braked hard in order to avoid a collision. The bus came to a halt about fifteen inches from the Ford Escort. The position of the Ford Escort was at an angle to the bus.

12. It is to be inferred that it was the intention of the driver of the Ford Escort to continue through the intersection by turning left and proceeding north in Callam Street.

13. The plaintiff relied, amongst other things, upon a breach by the driver of the Ford Escort of s.124 of the Motor Traffic Ordinance 1936. The section provides as follows:

"124 (1) Where -

(a) a motor vehicle upon a public street is
approaching a traffic sign, inscribed with
the words "GIVE WAY", erected at, near or
within the junction or intersection of
that public street and another public
street and facing in the direction from
which the motor vehicle is approaching;

(b) another vehicle is approaching the same
junction or intersection from either of
those public streets; and

(c) the circumstances are such that there is a
reasonable possibility that the vehicles
might arrive at the same point
simultaneously or that a dangerous
situation might otherwise be created,

the driver of the motor vehicle shall either
decrease the speed of his motor vehicle to such an
extent, or stop his motor vehicle for such time,
as is necessary to avoid that possibility or
situation."

14. In my view, a breach of s.124 has been proved, but I do not think that that is an end of the matter. Obviously, a driver who proceeds beyond a give way sign into an intersection is under a duty to ensure that it is reasonably safe to do so. Whilst it may have been that the driver of the Ford Escort was not negligent in entering the intersection if she had had the intention of continuing her journey briskly and without interruption so as to avoid any danger to any other vehicle in the vicinity, this is not what she in fact did once she was in the intersection. She brought her vehicle to a halt within the intersection and in the path of the oncoming bus. She thus created a highly dangerous situation. It would have been obvious to anybody keeping a reasonably proper lookout that to stop in the intersection would create danger both to persons in the oncoming bus and persons in the other vehicle travelling in the second lane. There is no explanation as to why the car driver acted as she did. In my view, the evidence is open to the clear inferences which I draw that she failed to keep a proper lookout before entering the intersection, and that she failed to continue on through the intersection when that failure was likely to create an unnecessary risk to road users in the vicinity. The car driver clearly failed to take reasonable care. It was submitted on behalf of the second defendant, however, as I understand it, that even if it were decided that the car driver had acted unreasonably, what she did did not contribute in any material way to the plaintiff's injuries and that it was the bus driver who should bear sole responsibility for the plaintiff's injury.

15. The negligence of the bus driver, in my view, lay in his initial failure to observe the Ford Escort before it entered the intersection and compounded by the failure to take any step to reduce the speed of the bus until it was about twenty metres from that vehicle. At the time he observed the Ford Escort the bus driver was aware that there was another vehicle to some extent to his rear in the second lane and that it was therefore a highly dangerous manoeuvre to move into the second lane. The driver's decision, momentary as it was, to check the position of the vehicle in the second lane, was made in contemplation of the desirability that the bus would move without reduction of speed around the Ford Escort and in disregard of the desirability that the speed of the bus should be reduced until it was clear what the safest course was. That decision on the part of the bus driver was, in my view, negligent. It was not, as was submitted on behalf of the first defendant, a mere reflex action made in the agony of the moment.

16. In summary, I think the standard required of the reasonable driver in the circumstances was that as soon as the bus driver had observed the Ford Escort emerging into the intersection, he should have reduced the speed of his vehicle. In checking his rear vision mirror in order to investigate the possibility of going around the Ford Escort before deciding to brake, he lost crucial time and distance so that by the time he made the decision to apply his brakes the bus was so close to the Ford Escort that it could only be stopped short of a collision by a reduction of speed so sharp that it was likely to cause any passenger who was standing in the bus to lose balance and suffer the sort of injury that the plaintiff in fact suffered. I do not accept that the bus driver was entitled to assume that all passengers would remain seated in the vehicle until it came to a stop. The driver was clearly under notice that the plaintiff was concerned about getting out at the right stop. It was within the range of foreseeable possibility that a passenger in that situation, particularly with two small children, would prepare to alight whilst the bus was approaching the stop, but before it had come to a halt. As the bus proceeded along Callam Street towards the interchange, it was not unlikely that such a passenger would be standing in the aisle at about the time the bus reached the intersection with Neptune Street which, on the evidence, was about one hundred metres from the intersection with Bradley Street where the bus interchange is situated. In all the circumstances I think it is just and equitable that as between the defendants and the third party the first defendant bear responsibility for fifteen per cent of the plaintiff's damages and the second defendant and third party jointly bear responsibility for eighty-five per cent of the plaintiff's damages.

17. The plaintiff was not, in my view, guilty of a failure to take care for her own safety. I am not satisfied that in the circumstances of her lack of knowledge of the area and the fact that the bus was obviously approaching where she wished to alight, that preparing to alight where she did constituted a failure to take reasonable care for her own safety. Once she stood up she took hold of the rail at the top of the seat adjacent to where she was standing and I am not satisfied that her grip was so inadequate as to involve a failure to take reasonable care for her own safety. There was no contributory negligence in her failure to become aware of notices displayed in the bus.

18. I turn now to damages.

19. Before dealing with the evidence in an analytical way I think it is desirable to set out a chronology of the relevant events both before the plaintiff's injury and in the ten years since.

20. The plaintiff was born in England on 7 June 1936. She married her husband, a steelfixer, in that country and four children were born before the couple arrived in Australia in 1968. Another son, Warren, was born on 1 August 1968 in Australia. The youngest son, Greg, was born on 9 March 1973 in this country. The plaintiff had worked in the clothing industry in England as a seamstress and followed that occupation as an outworker in this country from 1969, although she seems to have ceased doing that work by 1977 because of the demands on her time in the home and because of the low financial reward.

21. By 1977 the plaintiff's husband was in business on his own account as a steelfixer and most of his work was subcontracting for swimming-pool installations. A number of children still lived at home at that time. The family home was at St. Marys. The plaintiff was especially committed to the care of the child Greg because of his epilepsy.

22. The husband left the matrimonial home in August 1976 but the couple were reconciled and he returned in January 1977. During the time the plaintiff and her husband were together, she spent time attending to some of her husband's business affairs such as taking telephone calls, attending to the books and the like.

23. In February 1977 the plaintiff took a job packing plastic bags in a factory at Silverwater, but she did not continue in that pursuit after the first week.

24. I have already referred to the circumstances of how the plaintiff happened to be in Canberra at the time of her injury. She remained in Canberra for another four days during which she said that she felt "not very well". According to the plaintiff's evidence, she had bad headaches, pain in the neck travelling down the back of the head, and she indicated an area of virtually the whole of the skull apart from the face. She travelled back to Sydney with her husband in his truck, a painful journey with pain in the same place. She consulted her local doctor, Dr Chamberlain, and when her condition did not change he referred her to Dr Bray, an orthopaedic specialist, on 2 December 1977.

25. At that stage her neck was starting to get bad and she was beginning to feel pain in the back. The pain in the head was such that she would experience a "cracking feeling" followed by a really bad feeling one hour later. She says that she tried to take no notice of the pain. However, the condition grew worse. In February Dr Bray performed a manipulation under anaesthetic without benefit and saw the plaintiff for the last time on 5 April 1978.

26. She had a hysterectomy in September 1978. Dr Chamberlain referred her to an orthopaedic specialist, Dr McGrath, who first saw the plaintiff on 13 September 1979. Dr Chamberlain also referred her to a psychiatrist, Dr Edwards, whom she saw once in 1979. The plaintiff attended a chiropractor, a Mr. Gibbons, in 1980 and he performed a manipulation. The family moved to Kellyville at some time in 1981 and the plaintiff came under the care of general practitioners there, notably Dr Marshall and Dr Percy. One of these doctors performed acupuncture. At some stage of her evidence the plaintiff said that it was in 1981 that she first began to experience pain in her left hip.

27. It was also in 1981 that the plaintiff, acting of her own accord, consulted Dr John Yeo of the Spinal Unit at the Royal North Shore Hospital. Dr Yeo saw her about four times during 1981. According to another part of the plaintiff's evidence, her left hip was becoming particularly painful at about this time.

28. In 1981 Dr Yeo referred the plaintiff to Dr Dick-Smith, a rheumatologist, who first saw her on 18 September 1981. Dr Dick-Smith referred the plaintiff to Dr Madew, a psychiatrist at the Hornsby District Hospital. Dr Madew first saw the plaintiff on 22 February 1982.

29. At some time in 1980, or possibly 1981, the plaintiff was referred by Dr Chamberlain to Dr Howard Rivett of St. Leonards, an orthopaedic specialist who performed a manipulation under anaesthetic. In April 1983 when the parties were living at Penrith, the plaintiff's husband left her and the two younger children who were the only children remaining at home at that stage. After two months or so the plaintiff and the children moved to accommodation at Newtown.

30. Some time in 1983 the plaintiff was referred by Dr Rivett to Dr Wright-Short, a psychiatrist, who first saw her on 17 November 1983. According to another part of the plaintiff's evidence, it was at some time during 1983 that her hip troubles commenced.

31. In November 1983 a myelogram was performed at the Prince Henry Hospital.

32. In 1985 the plaintiff attempted work at a used clothing shop in Newtown. It was a temporary position only which lasted for two weeks. In 1985 the plaintiff moved to Lewisham and in March 1986 to her present address at Dulwich Hill. Since moving to Dulwich Hill she has been under the care of a general practitioner, Dr Condon. She continues to consult Dr Wright-Short and Dr Ellis.

33. The plaintiff has been seen by a number of doctors apart from those who have treated her. In particular, she has been seen by Dr Spira and Dr Andrews, who have given evidence for the second defendant.

34. Although there is a great deal of medical evidence in the case, some of it being by way of report, some of it by way of supplementary oral evidence, there are substantial gaps in it. However, I am not prepared to draw any inference adverse to either party by the absence of any particular medical witness. Nearly all the medical witnesses reside and practice in Sydney and it was clear that both parties had difficulties in securing the attendance of medical witnesses here in Canberra. However, the absence of Dr Chamberlain in particular does not assist the resolution of some of the medical issues. The complaints to the doctors in the early stages after the injury were a matter of considerable controversy during the hearing, and I do not think that either the plaintiff or those doctors who were called could be expected to have any exact memory of what was said in conversations between them. Documents were produced to the Court in answer to a subpoena served upon Dr Chamberlain, and those documents were made available to the parties. However, no attempt was made to tender them and the only inference to be drawn is that they would not have assisted any of the parties in the case. Apart then from what the plantiff and the members of her family had to say, there is no direct evidence of the plaintiff's condition or complaints in the early years, apart from that of Dr Bray who saw her on a few occasions between the end of 1977 and mid-1978, Dr McGrath, who saw her once only on 13 September 1979, more than a year later, and that of Dr Dick-Smith, who saw her for the first time on 18 September 1981, two years after that.

35. The case presented on behalf of the plaintiff was essentially that she suffered and continues to suffer from a soft-tissue injury in the cervical area of the spine, and that the symptoms and disabilities associated with the injury have been and continue to be aggravated by anxiety and depression. It is a further and important part of the case presented on behalf of the plaintiff that her depressive condition is itself either a result of her injury or the direct consequence of a number of factors which, although not associated with the injury, were foreseeable so that the plaintiff's overall physical and psychological condition should be regarded as causally related to the injury. It should be noted, however, that the plaintiff in her evidence and her complaints of symptoms to doctors over the years presents a somewhat different picture of bodily aches and pains, some of which cannot be in any physical sense associated with her injury. For instance, she complains of pains in the wrists and forearms, which are due to carpal tunnel syndrome, a physical condition unrelated to her injury. She also complains of pain in the left hip which again has no physical association with her injury and for which there is no satisfactory physical explanation. Indeed the very range of the plaintiff's complaints of pain has been relied upon by the defendants to support their submission that there is conscious exaggeration and a lack of genuineness in the plaintiff's complaints. Alternatively, or in addition, it is submitted on behalf of the defendants that the plaintiff has shown a desire to associate all her aches and pains with her injury to the extent that she has been shown to be motivated at best by an irrational obsession with her bodily condition and any possible relationship between it and her injury or at worst by a desire for secondary gain, that is to say, monetary damages.

36. I should state at this stage that after careful observation of the plaintiff when she gave her evidence over a protracted period of time as well as of other factors, I have come to the conclusion that the plaintiff was on the probabilities a witness of truth. On the whole there was a general consistency, up to a certain point, in the picture she presented of herself in the witness box and a further and similar consistency between that picture and the picture she presented to the doctors over the years. My impression of the plaintiff is reinforced by the impression I gained of the witnesses she called to support her case. I have little hesitation in accepting those witnesses as frank and honest. Nevertheless, I think it is true that the plaintiff had by the time of the court hearing, not surprisingly, become somewhat preoccupied with her case. It is also true that she has consciously sought an association between her physical limitations and her injury. For instance, she said in answer to questions put in cross-examination that she was suffering from failing eyesight and that she had consulted a particular doctor in order to see whether there was any connection between that condition and the injury. However, the plaintiff's preoccupation is, in my view, to be distinguished from obsession and her behaviour in consulting doctors and referring to books on family medicine is, in my view, no more suspicious than that of an exceptionally self-interested litigant.

37. The plaintiff presented herself as being totally incapacitated for any form of employment as well as for any but the lightest household tasks, as extremely and continually depressed, unable to sleep or eat and addicted to pain-killing and anti-depressant drugs. The case for the defendants on damages is that any injury sustained by the plaintiff should have resolved within a relatively short time, probably months, and that if any disabilities and symptoms persist at the present time then they are due to psychological factors, or a complex of physical factors, for which the defendants are not responsible. The defendants also contend that the plaintiff is not genuine, that she exaggerates her symptoms and her disabilities and over-states the unhappiness in which she lives. For instance, the defendants suggest that there is a substantial possibility of a reconciliation between the plaintiff and her husband.

38. The assessment of damages is concerned to a considerable extent with an imaginary past and imaginary future. In other words, it is necessary to try to come to some sensible decision about what would have happened in the plaintiff's life if she had not been injured. In my view the evidence establishes that her mental and physical health before the injury was good. She had not worked for several years except for the one week in early 1977. That was work of a type to which she was not used and involved handling heavy rolls of plastic sheeting. She abandoned it after a week. In my view she was capable of carrying out that work if she had been sufficiently motivated, but the pressures of household duties were the main factor in the way of her not continuing to seek such work. The plaintiff's medical history before her accident showed that she was subject to the usual sorts of illnesses from which most people suffer at some stage or another and I find that if she had not been injured it is likely that she would have, at some stage, subject to household pressures, looked for work from time to time and on occasions taken up work of a relatively light, unskilled nature or alternatively in her former occupation as a seamstress.

39. It was put on behalf of the defendants that the plaintiff was predisposed to mental illness or instability. However, in my view the evidence falls short of this. The several months of grief following the death of her mother in about 1970 did not indicate mental instability or anything like it. The unhappiness which accompanied the period when her husband had left home and formed a liaison with another woman in the several months prior to January 1977 was again, in my view, not indicative of predisposition to mental instability. However, I think that the marriage, whilst it had been restored to a happy state by the time of the injury, was by then a vulnerable one. The concern that the plaintiff had for the welfare of her epileptic child was another factor which made for potential stress within the family situation. I note also the evidence of the plaintiff's daughter that even prior to her injury the plaintiff was a very sparse eater.

40. In the light of the factors which existed before the injury then the plaintiff's claim that her depression has been the result of the injury has to be examined with some care. First, it needs to be said that on her medical history she was not exhibiting any signs of depression until some two years after the injury when Dr Chamberlain referred her to Dr Edwards. There was no report from Dr Edwards and he did not give evidence. He saw the plaintiff only once. The plaintiff did not see another psychiatrist until 22 February 1982 (nearly five years after the injury) when Dr Dick-Smith, the rheumatologist, referred her to Dr Madew. Secondly, there is the claim that the plaintiff's injury caused the breakdown of her marriage. When he reported on 23 January 1986, Dr Madew expressed the opinion that the plaintiff's significant anxiety and tension state aggravated her muscular tension thus increasing her established neck pains. From that he inferred that the accident was the initial and significant cause of the plaintiff's problems. Reviewing the plaintiff shortly before the time of that report, Dr Madew was informed by the plaintiff that her disability and "related problems" had been the major cause of the breakdown in the marriage when the husband had left in April 1983. Dr Madew thought that the plaintiff was correct in this regard. However it is significant that Dr Madew was not informed of the husband's departure from the matrimonial home during the several months in 1976-1977 until the consultation with the plaintiff on 18 December 1986. At that stage also it is notable that the plaintiff's feelings of total hopelessness were seen by Dr Madew to be tempered by a partial hope of cure of pain, the fact that the pain fluctuated in intensity and that the plaintiff saw that the court case and the end of her ordeal were close. The plaintiff told Dr Madew that she deserved compensation as a recognition of her great disturbance and suffering. Despite the pain which was always present as a background problem, she told Dr Madew that she could generally cope with her housework and cooking.

41. In her evidence to the Court, the plaintiff displayed a different attitude towards the marriage breakdown from that expressed to Dr Madew. In her evidence she was very explicit in stating that it was not her depressed state that drove the husband from the matrimonial home but a complicated combination of factors. Her husband's business had begun to fail several months beforehand. He himself became depressed because he was not able to work or earn income. The plaintiff felt guilty, according to her, because her physical state prevented her going out into the workforce and earning a living. Accordingly, she expressed the view to her husband that he ought to leave the matrimonial home and go to live elsewhere so that she and the two children would be eligible for social security, presumably the supporting parents' benefits. I was not told whether the plaintiff was successful in obtaining such social security payments, nor indeed as to how she has survived financially since her husband left her.

42. In this confused state it is impossible to determine positively the relationship between the husband's departure and the effect of the injury on the plaintiff. Certainly the plaintiff's depression appeared to have increased after the husband's departure and the plaintiff now sees herself as unable to face a reconciliation. Again it is not easy to see the exact nature or basis for the plaintiff's attitude. She stated that the husband expressed a willingness to return, but the husband was not called, and I am somewhat sceptical of the plaintiff's evidence on this aspect.

43. The plaintiff of course bears the onus of proving her case on damages as well as on liability on the balance of probabilities. I think that the question of the casual relationship between the marital breakdown and the injury must be decided by taking a very broad commonsense approach. Is it more likely than not that but for the injury the husband would have departed the matrimonial home in April 1983? In my view it is impossible to answer this question affirmatively. In a more general sense is it more likely than not that but for the injury the plaintiff's marriage would have broken down in any event by the present time? Again I think it is impossible to answer this question affirmatively. One moves from there to the next question. Is it more likely than not the injury has contributed substantially to the plaintiff's present depressed condition, in the sense that but for the injury she would not be in that condition or a similar condition? I think that this question has to be answered in the plaintiff's favour. Of all the factors which occurred, contributing to a greater or less extent to the present situation, the injury is one such factor which cannot be removed without, in my view, substantially altering the total picture. The end result then is that I think that the plaintiff has shown a causal relationship between her general depressed condition and her injury, but has not proved a causal relationship between the breakdown of her marriage, occurring by virtue of the departure of her husband in April 1983, and that injury. Having proved the causal relationship between the depressed condition and the injury, however, does not entitle the plaintiff to a full award of damages to compensate her for that condition in the light of the strong evidence of contingencies that might have occurred in any event. As I have said, the marriage was vulnerable and there were other factors likely to lead to stress within the family. The collapse of the husband's business would have occurred in any event. The possibility that she could not have coped even though she had not been injured is a real one. She would have suffered carpal tunnel syndrome in any event. She may or may not have suffered from hip problems about which she now complains.

44. Of all the medical evidence I found that of Dr Wright-Short most convincing on the psychiatric side and that of Dr Ellis most convincing on the physical side. Dr Spira was the only doctor whose evidence supported the argument that the plaintiff suffers no cervical symptoms at all. His views are based largely on his belief that the plaintiff is untruthful and I do not accept them. I am convinced that the plaintiff has made out her case largely as it was in the end argued on her behalf. She still suffers from symptoms of pain in the cervical area aggravated by a depressive condition which, as Dr Wright-Short explained, often accompanies a whiplash type injury. The plaintiff's injury could not be described as a conventional whiplash type, but she did fall in a twisting movement and she hit her head hard when she fell in the bus, producing a large lump on her head. The depressive condition itself, however, has been added to and complicated by factors for which the defendant is not responsible such as the breakdown of the marriage, the carpal tunnel syndrome and the hip condition. It is possible that what the plaintiff perceives to be a painful hip condition is itself a manifestation of her anxiety and stress, but the medical evidence did not touch on that particular aspect to a great extent, and I do not find that the plaintiff has discharged the onus on this particular point.

45. The plaintiff made a claim for loss of earning capacity. In the first instance I should say that in my view her degree of physical incapacity is not as great as she claims. Her precise complaints of the areas of pain to the doctors has varied from time to time and she told Dr Madew at the last conference he had with her that she was capable of carrying out most of her household work. However I am not convinced that she is fit for any form of remunerative employment either now or in the future. In any event her present condition is contributed to by her carpal tunnel syndrome and what she perceives to be pain in the hips and these conditions alone are likely to have reduced if not eliminated her earning capacity. Added to that is the depressive condition which might have occurred although to a lesser extent without the subject injury. In my view there was a very high possibility that some time between the date of the injury and the present time the plaintiff would have become incapacitated for work by the conditions to which I have just referred. The further factor to be taken into consideration and an important one is that the plaintiff had not been employed except for one week over a period of several years. She said that she had tried to use her sewing machine between 1977 and 1979 but, in my view, the plaintiff has not proved that she would have taken up employment by 1979 or, according to another argument, by 1982 or at all. I am satisfied that she would, but for the injury, at least have contemplated going back to work and indeed might have obtained work from time to time. Like many other aspects of the case this claim for loss of earning capacity is one about which it is impossible to be precise and any decision must verge upon speculation. Nevertheless a decision has to be made.

46. A comparison of earnings under the relevant award shows that if the plaintiff had been in full-time employment from the beginning of 1979 to date she would have earned about $74,000 net, or if she had been employed from the beginning of 1982 to date she would have earned about $45,500 net. For the future, the use of the award and the 3% discount tables, taking the plaintiff to age 65 and presuming she were in full-time employment from now until then, gives a figure of $135,000. The nature of the plaintiff's claim as to both past loss of earning capacity and future loss of earning capacity, however, is so vague that these figures can only be a guide of the most general nature. Substantial discounts have to be made for all the reasons I have given. I would award $15,000 for the past and $20,000 for the future.

47. As far as the future is concerned, I do not think that the plaintiff is likely to regain any real earning capacity. I think that there is a distinct possibility that her general condition will improve. If her general condition does improve then she would be a suitable candidate for operative treatment of her carpal tunnel syndrome which, if relieved, would be likely to lead to even further improvement in her general condition. I note the remarks of Dr Madew as to the plaintiff's attitude to the future. It seems that she herself is hopeful that things will improve after the case is finished.

48. Dr Wright-Short was of the view that the plaintiff would benefit from continuing consultation with a psychiatrist such as himself, although it seems that the consultations do not involve more than a sympathetic discussion of problems. There is no treatment by way of psychotherapy or the like. However, Dr Wright-Short did mention the possibility that the plaintiff could benefit from a course of electro-convulsive therapy. This has not been proved as a likelihood, but to allow for the possibility, a component will be included in the award for general damages. The plaintiff will continue to need medication both for pain and for depression, but I am not convinced on the balance of probabilities that this need will continue forever. I would not be prepared to award future out-of-pocket expenses for more than three years into the future. I bear in mind that if I do not make an award beyond that date the plaintiff will not incur any such expense in any event as she will probably be eligible for treatment under the social security system. Present out-of-pocket expenses are agreed at $6,162.65. I award $500 for future pharmaceutical expenses and $1,000 for future medical expenses. The plaintiff continues to see her local practitioner, Dr Condon, but he was not called and I am not satisfied as to the frequency or the need for the visits.

49. For pain and suffering and loss of enjoyment of life past and future, I award $25,000.

50. The plaintiff makes a claim under the principle in Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161.

51. The evidence establishes that the plaintiff's daughter, now married, Mrs. Sherry Yates, does virtually the whole of the housework for the household in which the plaintiff lives at 521 New Canterbury Road, Dulwich Hill. The household at the present time consists of the plaintiff, her two sons, Mr. and Mrs. Yates and their small child. It is a three bedroom unit on the ground floor. The plaintiff does not occupy a bedroom as such, she sleeps or rests during the night upon a sofa in the living room. There is no separate dining room. The food is prepared by Mrs. Yates and is available to be consumed by the members of the household at any time. They do not all gather together to sit around a meal table. The plaintiff eats and drinks very little. Although she is, in my view, capable of preparing light meals, I find that in fact she allows the preparation of the food to be carried out by her daughter. She is also physically capable of carrying out the washing of the clothing of herself and her sons by means of a washing machine and I find that the plaintiff occasionally uses the washing machine. She is capable, in my view, of light to moderate housework but in her present depressed state she is not motivated to carry out household cleaning activities except on very rare occasions and to a very limited extent. She is capable of walking to nearby neighbourhood shops and of carrying light groceries home. She seldom does so because her daughter is prepared to do it. In her present condition she is not capable of carrying heavy items such as numerous canned and bottled goods. A substantial cause of her overall disability in and about the household, however, is due to the condition in her wrists and in her hip, which have no physical association with her injury. As I have indicated, the plaintiff probably perceives her disability arising from these conditions to be greater than it would be in a situation free from her depressed state. Consequently I find as a fact that the disability which prevents the plaintiff from carrying out household activities, and which activities are carried out by her daughter, is due only in part to the injury. There is no claim that the plaintiff's disability requires that she receive assistance in her own personal requirements in showering and the like.

52. It is clear from the evidence that some of the activities carried on by Mrs. Yates relate to the household needs of the plaintiff's sons. It was submitted on behalf of the defendants that the principle in Griffiths v. Kerkemeyer does not cover the cost of performing services for persons. other than the injured plaintiff. Such a restriction of the application of the principle appears to have been imposed by the majority of the New South Wales Court of Appeal in Burnicle v. Cutelli (1982) 2 NSWLR 26, but in my view it is contrary to a decision of a Full Court of the Federal Court of Australia, which is binding on this Court: Hodges v. Frost [1984] FCA 98; (1984) 53 ALR 373. In the Federal Court, Kirby J. with whom Gallop J. and Morling J. agreed, declined to follow the majority judgment in Burnicle v. Cutelli and referred with apparent approval to the dissenting judgment of Glass J.A. in the Court of Appeal. The facts in Burnicle v. Cutelli were not dissimilar to those in the present case. The trial judge found that the plaintiff's daughter was occupied for three hours a day in performing services for the injured plaintiff and a further three hours a day for the rest of the family, which latter services would have been performed by the plaintiff if she had not been injured. Although Glass J.A. held that on the facts the services performed for the members of the family other than the plaintiff did not resound in damages, his Honour took the view that in other factual situations damages might reflect the cost of services performed for persons other than the plaintiff. His Honour applied an unreported decision of the Federal Court of Australia on appeal from this Court, Cummings v. Canberra Theatre Trust (Federal Court of Australia, unreported, 18 June 1980) although in that case the services had been paid for and had not been performed gratuitously. Since the judgment of Glass J.A. appears to accord with the decisions of the Federal Court which are binding on me, I think it worthwhile to quote at length from his Honour's judgment at p.35:

"I would adopt with respect the view of the
Federal Court that expense incurred by anyone in
the provision of domestic services can be
recovered by the plaintiff since to disallow the
claim will go in relief of the tortfeasor. But
where the services have been and will be
gratuitously provided, recovery also depends upon
proof that it was reasonably necessary to procure
the service at a cost and therefore that it is
reasonable to charge the cost of the gratuitous
service to the tortfeasor. The answer to that
question will, of course, be governed by the need
of the plaintiff, the character of the services,
the level of intensity at which they are provided,
the person who provides them and such questions.
Let it be supposed that the plaintiff is a married
woman with three young children whose husband is
on a low income and unable to pay for domestic
assistance from his own resources. Her injuries
according to supposition confine her permanently
to bed and render her incapable of attending to
any of the needs of her children and her husband.
I would myself see no reason why in those
circumstances a claim for the value of gratuitous
domestic services should not be successfully
proved.

Another way of testing the actionability of the
claim is to suppose that the disabled plaintiff is
a woman of wealth and that the household totally
deprived of her services consists of a de facto
spouse and their children or her children alone,
she being divorced. She proves against the
tortfeasor that she has incurred expenditure in
replacing the domestic services to the household
which she is no longer able to render. If she is
debarred from recovering the costs incurred, no
one can and the tortfeasor is relieved of
responsibility for an expense caused by his
negligence and not a remote consequence of it. If
the costs are recoverable in her action, it can
only be on the footing that they were incurred as
a consequence of a loss suffered by her. If the
need for the substituted domestic services is her
loss, the reasoning of Donnelly v. Joyce and
Griffiths v. Kerkemeyer would support a claim for
the recovery of the commercial value of similar
services gratuitously rendered.

But the present claim stands upon different
ground. For three hours a day five days a week
the plaintiff's daughter Maria cleans the house,
prepares the meals and launders clothes for her
invalid father, her unemployed brother and her
school age sister. She does this in place of her
mother because the latter has restricted use of
her left arm and left leg and has a large
functional overlay. The defendant is entitled to
say that the domestic burden she bears could be
substantially lightened if her mother, brother or
father gave her some assistance and that it is not
reasonably necessary to procure her services at a
cost. For these reasons I am not satisfied that
the cost of three hours domestic help for five
days a week can reasonably be charged to the
defendant."

53. Applying this approach to the present case, I think that the plaintiff is entitled to claim something for the services performed by her daughter for herself and for her youngest son, who is now aged 15 years and who is still at school. It should be remembered that he is an epileptic. I do not think it likely that Mrs. Yates with her husband and child would be crowded into the same small unit with the plaintiff and her two sons if she did not think, reasonably, that it was necessary to assist in looking after her mother, who in turn has a duty to look after her youngest son. I do not leave out of account that all the older sons are in a position to look after themselves, and whilst any of them live in the same household as the plaintiff, would be expected, reasonably, to perform some services to look after the plaintiff and their brother. However, again adopting the sort of approach that was adopted by Glass J.A., one might examine the hypothesis of what would have happened if Mrs. Yates and her family had not moved in with the plaintiff and she declined to assist the plaintiff at all. I think that that would have given rise to the situation where local welfare authorities would have seen it desirable to supply the services of a community nurse to the plaintiff and her son, to check on their welfare and probably to perform some services around the home, including the preparation of food. However, I do not think that the plaintiff's condition would have been regarded as so serious that she should have been supplied with regular meals-on-wheels or anything of that nature. I observe that there is no evidence that she has ever been classified as an invalid within the social security system. The cost of the services of a community nurse have been avoided by the services being performed by Mrs. Yates in conjunction with the services she performs for the rest of the household. Doing the best I can, I think that it is reasonable to include in the award of damages a sum calculated under the rule in Griffiths v. Kerkemeyer on the basis of five hours per week. I have regard to the evidence as to commercial rates, but I do not think it appropriate to apply full commercial rates in the circumstances of the case. I take into account that when Mrs. Yates was living in a separate but nearby house, she probably would have had to take more time to go to and from the plaintiff's house, but I am not convinced that this is really cancelled out by the fact that she probably performs more duties for the plaintiff and the youngest son whilst she lives in the same house. The claim must be discounted for contingencies in the same way as the claim for loss of earning capacity and I award $5,000 for the past.

54. For the future it is impossible to be precise. I think that the claim should be reduced by reason of the fact that the youngest son can expect to become self-supporting within a few years, and any services rendered thereafter will be rendered for the plaintiff alone. I am not convinced that it is probable that the plaintiff's condition as it relates to her 1977 injury will continue into the indefinite future so as to require the assistance of the daughter, but nevertheless something has to be awarded as against that contingency, modest as the award might be. On that basis I propose to include in the damages the sum of $2,000 for domestic services over the next three years, $1,000 for domestic services over the following two years and $1,000 thereafter. Discount for future contingencies is allowed for in those figures.

55. In summary the damages are awarded as follows:

Pain and suffering and loss of enjoyment
of life past and future $25,000.00

Past loss of earning capacity $15,000.00

Future loss of earning capacity $20,000.00

Present out-of-pocket expenses $ 6,162.65

Future pharmaceutical expenses $ 500.00

Future medical expenses $ 1,000.00

Griffiths v. Kerkemeyer $ 9,000.00

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$76,662.65
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56. I formally order that there be judgment for the plaintiff in the sum of $76,662.65. Counsel advised me at the conclusion of the hearing that they wished to address me after judgment on the question of costs. I will therefore now hear the parties on costs.