James Spencer Ross By His Next Friend and Mother Helen Joy Kelleher v Beverley Stafford-Bell [1987] ACTSC 63 (17 September 1987)

SUPREME COURT OF THE ACT

JAMES SPENCER ROSS by his next friend and mother HELEN JOY KELLEHER v.
BEVERLEY STAFFORD-BELL
S.C. No. 610 of 1984
Contributory Negligence

COURT

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

CATCHWORDS

Contributory negligence - Damages - Assessment - No new question of principle involved.

HEARING

CANBERRA
17:9:1987

ORDER

There be judgment for the plaintiff in the sum of $15,840.13.

DECISION

This is a claim for damages in respect of injuries sustained by the plaintiff in an accident which took place on Monday, 22 February 1982 at the junction of Gawler Crescent and Bedford Street, Deakin. At the time the plaintiff was a little over 11 1/2 years old, having been born on 9 August 1970.

2. At about 8.50 a.m. on that day, the plaintiff was riding his bicycle to school along Bedford Street intending to turn right into Gawler Crescent. He was, very sensibly, wearing a suitable bicycle helmet and this, I am satisfied, saved him from a much more serious head injury than that which he sustained although that was severe enough. He was apparently riding near the centre of the street, since he stopped, as I am satisfied, just to the left or northwest of its centre line and two feet or so from the prolongation of the southwestern kerbs of Gawler Crescent. I am satisfied that at that point he had at least one foot on the ground to steady himself before he began to move forward again. He then rode straight ahead. According to his evidence he did not see the defendant's vehicle until it was at a point some 2 - 3 metres from him. Questioned by police on 11 March 1982 he was asked, "When did you see the other car?" He replied, "About a metre before it hit me." He told police that he had looked left, then right, then left again before he went on. He said that only two seconds would have elapsed between his looking to the right and his riding into the intersection.

3. The defendant did not give evidence but a statement made by her to police on the day of the accident was tendered. She said that she was travelling west in Gawler Crescent on her way to the junior school in Gray Street where she was taking her two children. She was travelling at a speed of about 20-30 kilometres per hour as there were always a lot of children in the area. As she approached the junction of Gawler Crescent and Bedford Street she saw on her left a young child on a bicycle approaching Gawler Crescent from Bedford Street. He stopped as he reached Gawler Crescent and looked to his left. She slowed down to about 15-20 kilometres per hour and assumed he would remain there until she passed. She continued and was glancing at children near buses standing nearby as well as at the child on the bicycle. She said he came suddenly out in front of her when she was about 2-3 metres away. She braked immediately but could not avoid colliding with the bicycle. She went on to say:-

"The child was thrown onto the bonnet of my

car and I braked to a stop. The child then
fell onto the roadway and I got out of my car
to see if I could help him. Just prior to
the collision, the child had stopped his
bicycle and suddenly with no indicating,
almost as if his attention was taken away, he
rode straight out in front of my car. At no
time did the child give his indication to go
left or right and he had both hands on the
handlebars. As far as I can determine, the
point of impact was to the right of centre in
Bedford Street and in the middle of the left
hand lane of Gawler Crescent."

4. I was told that the defendant was suffering from multiple sclerosis, a condition which has apparently caused her to have difficulty in speaking clearly. I therefore make nothing of the fact that she did not give evidence and was not cross-examined. I see no reason to doubt what she said in her statement.

5. A statement made by one, Stewart Francis Huys, was tendered without objection. He was a 15 year old schoolboy at the time of the accident. He saw the plaintiff struck by the defendant's car and thrown up and over the bonnet to fall off over the roof on the driver's side. He could not say how fast the car was travelling before the collision but his recollection was that it was not going very quickly. He thought the car was on its correct side of the road. Mrs Skipper said that she saw an object thrown into the air so that either it or at least part of it appeared above the roof of the defendant's car. I am satisfied that what she saw was the body or part of the body of the plaintiff as it was thrown into the air after the collision.

6. There was damage to the left headlight and windscreen of the defendant's car.

7. It is plain from the evidence that the defendant continued on after the collision for some distance without stopping. I put this down to the state in which she was as a result of the collision and not to any inability to stop because of excessive speed.

8. After consideration of all the evidence I find that the plaintiff, having stopped at the entrance to Gawler Crescent from Bedford Street, moved off, having failed to see the defendant's vehicle which was approaching from his right. The failure on his part to keep a lookout continued until he was some few feet from the point of impact. His action constituted a failure to give way to the right as he was required to do by s.122 of the Motor Traffic Ordinance 1936. I am satisfied, therefore, that he was negligent and that that negligence contributed to the damage he sustained.

9. I am satisfied, too, that the defendant was negligent. She knew that there were always a lot of children in the area. By that I took her to mean that at about that time on schooldays there were usually a lot of children about. She noted that the plaintiff was a young child. She continued to glance at him as well as at children near buses standing nearby. She saw the child ride straight out in front of her car. She hadn't seen him look to his left. Nothing in her statement indicates that she saw him look to his right or note the presence of her car. Quite the contrary. In any event, she must have been aware that young children are apt to do unpredictable things and that great care must be taken to allow for such unpredictability. When she noticed the child move off she was not in a position to apply her brakes or for some reason not explained failed to do so in time to stop. Having regard to the speed at which she said she was travelling at that point, 15-20 kilometres per hour, she should have been able to stop or alternatively have proceeded at a much slower speed or given an adequate warning of her presence. She did none of these things. Whether there was any physical reason for her inability to control the situation does not appear and I do not speculate upon that.

10. I think that she was negligent in three ways. She failed to keep a proper lookout even though she certainly was keeping some lookout. She failed to slow down or stop so that she might deal with an emergency situation should one arise in circumstances where she might reasonably have expected it to arise and she failed to give due warning of her approach.

11. In normal circumstances one would attribute to the person who fails to give way to a vehicle on his right contrary to the provisions of s.122 of the Motor Traffic Ordinance much the larger share of the blame for any accident which might occur at an intersection or junction. In this case, however, I am satisfied that while a substantial part of responsibility for the accident lies upon the plaintiff himself, I think the defendant was more to blame for the accident because of her negligence in the several respects set out above. I have due regard to the fact that the plaintiff was of comparatively tender years but the evidence is that he knew at the time what his duty was as far as vehicles approaching from his right were concerned. He did, according to his own evidence, look left, right and left again. He simply failed to see the defendant's car and did not take adequate precautions to avoid a collision with a vehicle approaching from his right. In all the circumstances, I think that responsibility for the accident should be shared as to 30% by the plaintiff and as to 70% by the defendant. In taking this view I have been guided to some extent by the approach adopted by Cox J. in George v. Crisp (1986) 4 MVR 91 and by the Court of Appeal (N.S.W.) in Grasso v. Brandt (1986) 3 MVR 211.

12. As a result of the accident the plaintiff suffered some bruising which healed uneventfully after causing him some pain and discomfort. His principal injury was a fracture extending from the left occipital region to the base of the skull. It extended to the part of the skull which related to the left ear and this occasioned bleeding from that ear. He was rendered unconscious in the accident, suffering from a degree of amnesia so that he does not remember the actual collision itself. He did see the defendant's car on his right shortly before it struck him. He was admitted first to Woden Valley Hospital where he came under the care of Dr Chandran, a neurosurgeon. The same day he was transferred to the Royal Canberra Hospital. A CAT-scan carried out there showed no evidence of haemorrhage or swelling of the brain. His injury was treated conservatively. He gradually improved and was discharged home on 2 March 1982.

13. At the time of his discharge he was alert and oriented in time and space without any headaches or weaknesses in the limbs. The hearing in his left ear was diminished on account of a plug of dried blood in it.

14. Dr Chandran reviewed him on 12 March 1982. He found him alert and oriented with no neurological defects other than mild impairment of hearing in the left ear. There was still some dried blood in the left ear canal and this Dr Chandran thought was the cause of the hearing defect. He advised the plaintiff to return to school two weeks after the review.

15. Reporting about three weeks later, he expected that no long term serious complications were expected. He referred to the fact that head injuries of the kind suffered by the plaintiff carried a 5% risk of epilepsy. He considered there were no specific features in the plaintiff's condition to suggest that the risk was higher than the average for any head injury of that kind. He assessed post traumatic amnesia at about 2 hours.

16. The plaintiff gave evidence that he had experienced excruciating pain all over his body although he had no memory of his initial hospitalisation or of being transferred. He cried a lot. When he was discharged from hospital he still felt "pretty groggy" and was in bed for a long time. Any bump would hurt his head. He does not remember having any difficulty with his hearing. He missed the whole of first term but gradually came to do more and more. When he went back to school he was practically all right. He had to catch up, of course, especially in mathematics.

17. His principal continuing complaint is of headaches of migraine type. I accept his evidence concerning them. Indeed, I saw no reason to doubt any of his evidence. The headaches are more likely to occur when he is suffering from tension or has undergone a great deal of physical exercise. Stress, whether physical or emotional, would therefore seem to be the trigger which initiates the headaches. That emotional stress rather than minor trauma is the most likely cause appears graphically from the fact that he is able to train for and play rugby union at school in a team appropriate to his age group.

18. The plaintiff's mother gave evidence which I accepted concerning his headaches and moodiness.

19. On 4 August 1983 the plaintiff consulted Dr. Danta, a neurologist, to whom he had been referred by Dr Chandran for an opinion on his headaches. He gave a history part of which was as follows:-

"He had initial headache, but this settled
and the current headaches started a month or
two after the accident. This is an episodic
pain which is always in or about the right
eye but may spread to the other eye and the
forehead. It lasts up to two days, is
frequently accompanied by nausea and vomiting
and sometimes by flashing lights in front of
his eyes. It is partly constant and partly
throbbing. There has been a pattern now for
some time where he tends to get the headache
on Mondays towards the end of the afternoon
at school and it tends to last that day and
frequently also into the Tuesday. At times
he also has a similar headache on weekends."

20. An electro-encephalogram taken because of the suggestion of possible post-traumatic epilepsy was within normal limits for the plaintiff's age.

21. Dr Danta was of the opinion that the plaintiff clearly had vascular headaches of the migraine type which had started only after the head injury. It is, he said, well known that even minor head injuries can either aggravate or induce for the first time the appearance of what to all intents and purposes amounts to migraine. In view of the fact that the plaintiff's headaches had continued for a long time it was likely, he thought, that they would continue for a long time, almost certainly a number of years. He thought it likely that under these circumstances a patient would have developed migraine in any case and that the head injury aggravated a pre-existing condition. He prescribed appropriate pharmaceutical treatment. He thought that despite the moderately severe injury there had been no impairment of intellectual functioning and he did not think neuropsychological assessment necessary. He thought it unlikely that the plaintiff would suffer from post-traumatic epilepsy.

22. Dr Danta saw the plaintiff again on 12 July 1985. He found that the plaintiff was not taking his medication as prescribed and headaches were continuing, recurring largely on Mondays and increasing during the preceding few months. There was quite a lot of friction at home between the plaintiff and his stepfather and siblings. The headaches were starting to interfere with his school work. I am satisfied, incidentally, that the overall effect of the accident was that it has had no effect on his school work and that he is achieving now what he might have been expected to achieve had he sustained no injury.

23. Dr Danta saw the plaintiff's mother on 15 July when she told him that his behaviour was quite abnormal and had been since the head injury. He saw the plaintiff on 19 July 1985 when he acknowledged his short-temperedness and misbehaviour but did not want to talk much about it or to see a psychologist about it. He refused to be referred for relaxation techniques which Dr Danta thought might help his headaches and was reluctant to take medication because of perceived side effects.

24. Dr Danta found the pattern to be typical of stress-related migraines and in view of the various other factors to which he referred in his report of 17 October 1985 it was clear that the plaintiff's attitude on the one hand and the various difficulties within the family were substantially aggravating the overall state of the headache. When there were such aggravating factors medication became much less effective. He stated that unfortunately the plaintiff had refused appropriate advice and management and if that state of affairs continued it was almost certain that the headaches would also continue and the prognosis would remain poor.

25. Dr Danta reviewed the plaintiff on 30 July 1987 when the situation was much the same as it had earlier been. His conclusions were expressed as follows:-

"Patients with vascular headache are very
susceptible to very ordinary stresses and
tensions, and, as before, I suggested that he
have relaxation exercises and/or a stress
management course. He himself (was)
reluctant to accept this, but was going to
think about (it).

On the whole the symptoms and disability have
both continued, and it is likely that he will
continue with his headache unless there is a
good response to treatment if he will accept
it."

26. There can be no doubt that the plaintiff sustained a moderately severe head injury. It is also clear that the headaches from which he now suffers stem generally from stress rather than from external physical cause. He is, as I remarked above, able to engage in the game of rugby union, not a notably gentle sport. It seems probable that had he undertaken stress management therapy there may have been a considerable if not total reduction in his symptoms. However, he has not done this. On the whole, however, I think it not unreasonable that a boy of his age should have had difficulties about undergoing what to him might seem treatment appropriate to somebody with disturbed psychological function or, as he put it, "some kind of a nut". It is also not unreasonable, again having regard to his age and the normal problems of adolescents, that, having regard to its side effects on him, he has discontinued the use of medication except to a minimal degree.

27. However, I do not think he should persist in such refusal at the defendant's expense. I am prepared to accept that the headaches from which he now suffers and from which he is likely to suffer until, say, the end of next year, would be fairly due to the accident but I think two factors make it inappropriate to allow for any damages in respect of headaches beyond that period. The first is that I think he has to come to terms with his unwillingness to have the treatment recommended. The second is the likelihood that he might have become a victim of headaches of the type in any event. I take account of the slight risk of epilepsy, a risk now to be assessed, I think, at much less than five percent.

28. In all the circumstances I think the proper amount to award for general damages is $15,000. Out of pocket expenses are agreed at $2,128.75. The total amount of the plaintiff's damages is, therefore, $17,128.75. Having regard to his share of responsibility for the accident, I think it just and equitable to reduce that amount by 30% to $11,990.13. For interest I allow $3,850.00. There will be judgment for the plaintiff for $15,840.13.