Maria Josephine Raso; Christina Raso; Caterina Raso and Adriana Raso v John Maurice Hasler [1987] ACTSC 8 (24 February 1987)

SUPREME COURT OF THE ACT

MARIA JOSEPHINE RASO; CHRISTINA RASO; CATERINA RASO and ADRIANA RASO v. JOHN
MAURICE HASLER
S.C. No. 1001 of 1984
S.C. No. 1002 of 1984
S.C. No. 1003 of 1984
S.C. No. 198 of 1985
Negligence - Contributory Negligence - Damages and Personal Injuries -
Practice and Procedure

COURT

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

CATCHWORDS

Negligence - motor vehicles - failure to obey Give Way sign - obstructed view of plaintiff's vehicle - no new question of principle.

Contributory Negligence - plaintiff driver's failure to reduce speed of her vehicle to adapt to weather conditions - no new question of principle.

Damages and Personal Injuries - whiplash type injuries - other soft tissue damage - no new question of principle.

Practice and Procedure - consolidation of several actions arising out of same fact situation - several plaintiffs but same defendant in all actions - all actions heard together - no new question of principle.

HEARING

CANBERRA
24:2:1987

ORDER

There be judgment for the plaintiff Maria Josephine Raso for $20,910.87.

There be judgment for the plaintiff Christina Staltari for $8,000.

There be judgment for the plaintiff Caterina Raso for $7,471.60

There be judgment for the plaintiff Adriana Raso for $5,138.60.

The defendant pay the costs of the plaintiffs in each case.

DECISION

These were actions for personal injuries by the occupants of a motor vehicle involved in a collision at about 8.30 a.m. on Wednesday, 11 April 1983. One of the plaintiffs, Maria Raso, was the driver of the vehicle. Another plaintiff, Caterina Raso, is the mother of the other plaintiffs who are all sisters. By consent all matters were heard together and may be disposed of in this single judgment. I shall refer to the daughters by their christian names. They all sustained classical "whiplash" type injury of varying degrees of severity.

2. Maria was driving her mother and sisters to work or to school as the case may be and was proceeding in MacArthur Avenue, O'Connor, eastwards from the Belconnen area. Although it was peak period there were no other vehicles preceding her at the relevant time. She was proceeding towards the intersection with Hovea Street. That intersection is in effect a T-intersection, with MacArthur Avenue running through the intersection, and Hovea Street running north from the intersection. MacArthur Avenue is in the vicinity divided by a median strip some twenty metres in width and there are two lanes for vehicles proceeding east. Maria was driving in the lane closer to the median strip. At the intersection with Hovea Street there is a break in the median strip so that vehicles proceeding west in MacArthur Avenue can turn right into Hovea Street and vehicles proceeding south in Hovea Street can turn right into MacArthur Avenue by means of the break in the median strip. For traffic turning right from MacArthur Avenue and facing Hovea Street there is a Give Way sign, the exact position of which was not given in evidence. There is also a stop line painted on the road surface, that stop line being about one foot south of the northern prolongation of the kerb of the median strip. There are some well established trees on the median strip which are probably eucalyptus. Those trees are spaced about twelve metres apart with trunks about 300 centimetres in diameter. For a driver in a vehicle in the break in the median strip facing Hovea Street, the view to the left is obscured by at least two of those trees, the closest being only 300 centimetres or so from the break in the median strip. The degree to which the view is obscured is a matter for determination. The view of the break in the median strip for vehicles proceeding east in MacArthur Avenue, however, is not obscured to any significant extent.

3. At the time of the collision it was raining heavily. One of the witnesses described the weather as "terrible". Maria had stopped at traffic lights at Miller Street and was proceeding at a speed close to but not more than the speed limit, namely sixty kilometres per hour as she approached the intersection with Hovea Street. She stated that she was "not driving fast". When she was some distance from the intersection with Hovea Street, she noticed the defendant's vehicle turn right from the oncoming carriageway in MacArthur Avenue. She saw the vehicle stop facing Hovea Street and then commence to pull out into the east bound lane in which she was travelling. She said that about the same time another vehicle came out of Hovea Street and crossed in front of her vehicle "like a flash". The defendant's vehicle, according to the plaintiff, continued to move into her lane, by which stage she was unable to take any avoiding action and a collision occurred. It is clear from the evidence, particularly that of Sgt. Fulton that each vehicle sustained minor damage towards the front, although for some reason the vehicle driven by Maria had to be towed away.

4. Although two of the passengers, Christina and Adriana, said in their evidence that the plaintiff "slammed on the brakes" (Christina adding also that the plaintiff swerved), I prefer the plaintiff's evidence that she took no evasive action of that nature, or any other.

5. The evidence of the defendant was that he was very familiar with the intersection having been for more than thirty years a regular visitor to his sister who lived in the area. He said that because of the presence of the trees which obscured the vision of a driver wishing to cross MacArthur Avenue into Hovea Street, it was necessary to move into MacArthur Avenue before it was possible to see whether any vehicles were approaching from the left. Accordingly, he said, he pulled up at the stop line before moving slowly into MacArthur Avenue where he stopped again in order to check whether any traffic was approaching from the left. However, before he moved from having initially come to a halt at the stop line, the defendant said that he noticed a car coming across from Hovea Street and turn right into MacArthur Avenue. In my view, that was the same vehicle glimpsed by the plaintiff Maria when her attention was concentrated on the defendant's vehicle. It was after noticing that car that the defendant moved out into MacArthur Avenue to see if it was clear. He said, "That's what caused me to do it." The defendant did not see the plaintiff's vehicle until the virtual moment of collision. At that stage the defendant claimed that the front of his vehicle protruded into MacArthur Avenue back as far as the middle of the front wheels. The defendant claimed that his vehicle had already stopped for the second time when the collision occurred, although there was "very little delay between coming to a stop and the actual collision". On all the evidence I find that the point of impact was at least 300 centimetres north of the stop line.

6. It was submitted on behalf of the defendant that in the peculiar circumstances in which he found himself he had no alternative but to edge his way into MacArthur Avenue in order to see if the way was clear before crossing it into Hovea Street and that any reasonable driver in the circumstances would have taken the same course. In view of the evidence of the defendant and of a witness, Mr. McGurgan, I accept that the view of a driver wishing to cross MacArthur Avenue and enter Hovea Street was obscured in the way in which it was described by those witnesses. I accept further that where the defendant's vehicle was stationary at the stop line, he was not in a position to see the plaintiff's vehicle approaching him. However, I do not accept that it was necessary for the defendant's vehicle to proceed as far as it did before it was possible to see left into MacArthur Avenue. I take particular note of the evidence relating to the unidentified vehicle which emerged from Hovea Street and crossed MacArthur Avenue immediately before the defendant decided to move out into MacArthur Avenue. I think that at that stage the defendant's attention was distracted from what was happening on his left, and conscious that that other vehicle had safely crossed MacArthur Avenue, the defendant was emboldened to move out beyond the median strip without that degree of scrupulous attention which was required in the circumstances. He was, of course, guilty of disobeying a Give Way sign in any event. I find that there was negligence on the part of the defendant.

7. As to the question of contributory negligence on the part of the plaintiff Maria, the defendant's case is essentially one of driving at an excessive speed in the circumstances, and failure to take reasonable measures to avoid a collision. I think that the defendant's case has been made out. The weather conditions demanded special care on the part of all drivers on MacArthur Avenue that day. There is no evidence that the plaintiff was aware of the presence of the Give Way sign, but in all the circumstances I do not think that that is material. The plaintiff's vision of the defendant's vehicle was, for practical purposes, unobstructed and she was not to know that the vision of the defendant was obstructed. Whilst I do not have to come to a conclusion that simply driving at the speed limit involved a lack of reasonable care, what I think is important in the present case is that the plaintiff, keeping a proper lookout, became aware of the presence of the defendant's vehicle when it was in a position where she was not entitled to assume that it was beyond possibility that it would move out into her lane. A prudent driver in the circumstances, bearing in mind the weather conditions, would have reduced speed in any event. If she had reduced her speed, it is the more likely that she would then have been in a position to take effective evasive action when it became apparent to her that such a course was necessary. I am not convinced that there was any lack of reasonable care on the plaintiff's part, once the defendant started to move beyond the stop line.

8. In all the circumstances, I think that the contributory negligence on the part of the plaintiff Maria is minor and her damages should be reduced by ten per cent. There is, of course, no question of contributory negligence in the case of the other plaintiffs who were passengers in the vehicle.

9. I turn now to the question of damages in the claim brought by Maria. She was born on 17 March 1963 and was working as a qualified hairdresser at the time of her injury. She continues in that occupation, having gone into business on her own account on 18 October 1985.

10. Maria was driven home by a friend some short time after the collision. She felt shaken up and could not move her right arm properly. She felt stiff later in the day in the area of her neck and shoulders. Her right arm was sore and she had a headache. It is not clear exactly how she felt the following day, but it appears that she went to work. On 13 April she consulted her family doctor, Dr Nancy Griffiths. The doctor prescribed Valium which Maria declined to take. She said in her evidence that she lost "lots of days" from work having to attend a physiotherapist over a period of two years or so. About a month after the collision she saw Dr Colin Andrews, a consultant neurosurgeon, for the first time. She claims that her symptoms continue more or less as they were with headaches "all the time" extending from the temples to the back of the neck and also pain in her right arm. She claims that these symptoms get worse after a day at work. As she has acquired a business of her own in which she employs five staff, she is able sometimes to rest and get some relief from the pain in the back of her neck. The headaches, however, are "not so bad" now. The pain in the neck is at its worst when she has to bend over to do her hairdressing work, particularly when attending to children and to some other particular parts of her duties. Over the last couple of years, however, she has missed only a few days because of her condition. She employs two casual employees at a wage of $75 each per week and claims that she could dispense with one of them if she was fit enough. The possibility of surgery has been discussed with Dr Andrews but she declines at this stage, reasonably, to be operated upon. She claimed that she is unable to do a good deal of the housework apart from cooking and washing up. Although the plaintiff claimed in her evidence-in-chief that she had been in previous good health, she admitted during cross-examination that she had had prior low back problems and associated problems in her legs. She relieves the present symptoms in her neck by working from a stool when it can be done. She has difficulty sometimes with pain in her wrists, which has been described as tenosynovitis, but that is not claimed to be due to her injury. The plaintiff's business is doing well and she expects that she will have to take on more staff as it gets busier.

11. The report from Dr Griffiths indicates that the plaintiff was advised to wear a collar as well as to undergo physiotherapy. There was no evidence that she did wear a collar and I can only presume that she did not do so. This indicates that her pain was not sufficient that she felt that she wanted to undergo the inconvenience or the embarrassment of a cervical collar.

12. Dr Andrews supplied a report and gave evidence. The conclusion stated in his report was that the plaintiff had "presumably" damaged a cervical disc at the C5/6 level. After a CT scan of the cervical spine, Dr Andrews' opinion that it was "possible or even probable" that the plaintiff had sustained damage to a cervical disc was not strengthened to the extent that I am convinced on the balance of probabilities that such damage occurred. I prefer the more positive view of Dr Cassar that there has in fact been no disc damage and, further, I am unable to find that there has been any nerve root involvement. I accept, allowing for some benign exaggeration, that the plaintiff continues to suffer some symptoms in her neck and her right arm which are associated with her injury. It is not possible to exactly categorise the nature of the injury except to say that it was some soft tissue damage of a whiplash type. Dr Cassar predicted that the symptoms should totally dissipate by March 1985, but I find that this somewhat optimistic prediction has not been borne out by the facts. I think that the plaintiff will continue much as she is at present over the next couple of years, but that her condition will improve during that period at the end of which I do not think that there is any substantial possibility that the effects of the injury will still be felt. The nature of her work requiring her to bend over and to work for prolonged periods with her right arm raised is such that the symptoms will continue but diminish to where they will become negligible over that time. I do not think that since the end of 1984 the injury causes more than minimal discomfort away from work. The household arrangements are such that the plaintiff has to do very little, and her work commitments probably would have had much the same effect in any event. I expect that she will take a greater supervisory role in her business at it expands and as she continues to employ greater numbers of staff. Despite her relatively young age, she is a confident and well presented young woman who, leaving aside the general question of the state of the economy, can be expected to continue to do well in her business activities. Because her business has expanded, I do not completely accept her statement that she could have dispensed with one of her casual employees if she had been completely fit. I think that the loss of earning capacity should be assessed at $50 per week, continuing into the future for a couple of years, but at such a diminishing rate that it is inappropriate to try and fix a figure by reference to a continuing wage loss and calculation by discounted interest figures.

13. Wages records from the plaintiff's then employer, Hair Trend, show that between the date of the injury, 11 April 1983 and 1 April 1985, the plaintiff lost a number of whole days and part days from work, the total loss of wages being in the region of $1500. In the light of the plaintiff's evidence that she attended physiotherapy during this period and lost a few days from work because of her symptoms, I think that the plaintiff should be allowed part of this wage loss, but the onus is on the plaintiff to prove the case and I am not satisfied that the whole of the loss is attributable to the injury. I think $1,000 is a sufficient award for actual wage loss until April 1985. From October 1985 until the present time when the plaintiff has been in her own business, I am satisfied that the work restriction has been such that some of her duties have been carried out by another employee who has had to be paid for that. I think that $50 per week is adequate to cover the plaintiff for that part of the claim, and that amounts to about $3,750. For the future, on the basis to which I have already referred, I award $5,000. For pain and suffering and loss of enjoyment of life, I award $12,000. Out-of-pockets are agreed at $1,484.30. Interest is not claimed. Total damages are $23,234.30, reduced by ten per cent for contributory negligence to $20,910.87.

14. I turn now to the damages to be awarded to Mrs. Christina Staltari. She was born in 1964 in Canberra and was a single person at the time of her injury. She was travelling as a passenger in the front seat. She was on her way to work with the Australian Industry Development Corporation, where she was employed as a secretary. She was very shaken up by the accident and was reduced to tears. The witness, Mr. McGurgan, took her to work in his car, but she was so upset that she had to leave by about 10 o'clock. She collected her sister, Adriana, from school by taxi and went home. She had an abrasion on her hip from the seatbelt. She felt stiff all over and although she went to work the next day, she saw Dr Griffiths with the other plaintiffs on 14 April. I am not satisfied that Mrs. Staltari lost any time from work as a result of her injury, apart from some hours on the first day, and a couple of days or so later on.

15. Dr Nancy Griffiths' report of 6 August 1983 states that the plaintiff sustained "some neck injury and lower lumbar injury as a result of a car accident". Dr Griffiths referred the plaintiff to Dr Andrews because of headache and neck pain. X-rays were within normal limits.

16. Dr Andrews saw the plaintiff first on 30 May 1983 on reference from Dr Griffiths. The main complaint of the plaintiff at that stage was lower back pain associated with a cramping sensation in the right thigh. The problems with the neck had gradually resolved. At that stage there was no complaint of pain radiating into the legs. However, when seen again on 31 August 1983, the plaintiff was complaining of pain radiating down as far as both ankles. There were no complaints of problems with the neck and the plaintiff said that she was able to cope with her work as a typist as long as she moved about when the need arose. There were similar complaints when the plaintiff saw Dr Andrews on 6 February 1984. He thought at that stage, there being no evidence of damage to lumbar disc, that her back symptoms arose from muscular and ligamentous damage and would resolve after another six months. The plaintiff did not see Dr Andrews again until 27 August 1986 for the purpose of a medical report. In the meantime she had been visiting a chiropractor and a naturopath. Dr Andrews' view remained as it had been and he thought the prognosis was a good one.

17. The plaintiff was examined by Dr Cassar, a consultant physician on 4 September 1984. Dr Cassar had previously been treating the plaintiff for a bowel condition unassociated with the injury, and her initial attendance for that complaint being August 1983. Dr Cassar did not give evidence and I infer from his report that there was some complaint to him in August 1983 of being "badly disabled with a neck for two to three months immediately after the accident and periodically thereafter", that the lumbar spine had continued to cause discomfort but not to an extent that there was any interference with her work or with her ability to walk or use stairs. In addition to the bowel problem the plaintiff suffered from migraine which was not associated with her injury. By 4 September 1984 Dr Cassar formed the view that the plaintiff's difficulties with her neck had resolved except for occasional trouble manifested as occipital headache and aching of the forearms when working as a typist. X-ray and CT scans disclosed no evidence of bony fracture or degenerative arthritis in the lumbar spine.

18. Records from a chiropractor indicate that the plaintiff was referred by Dr Griffiths in October 1984 for chiropractic treatment and in fact the plaintiff received treatment on six occasions during that month that year. Her complaints to the chiropractor were of "bad back pain, lower back and leg pains" together with headaches, all of which the plaintiff said she had noticed about 18 months ago following her car accident.

19. As at September 1984 Dr Cassar was of the view that the plaintiff's soft tissue injury was likely to resolve by about April 1985. When he saw her again on 11 September 1986 he in fact held to that view despite the plaintiff's complaints. Dr Cassar felt that the plaintiff's ongoing complaints of periodic low back weakness did not disclose any significance in disability or interference with her usual lifestyle.

20. Having seen the plaintiff and noted the consistency of her complaints over a period of time, I am of the view that Dr Cassar slightly underestimates the plaintiff's symptoms. I note from the chiropractor's records that the plaintiff complained of aggravation of the lower back symptoms on prolonged standing or sitting, that there was relief when lying on her back, or when heat was applied, that there was radiation in both thighs and that the pain was of a stabbing nature. On the other hand, I note that her immediate post injury symptoms of headaches were very soon overshadowed by migraine which were not associated with the injury, that she has lost virtually no time from her work, that she married about eleven months ago and is coping well with married life. The neck pain and headaches which she felt for some weeks after the injury gradually resolved although the lower back pain continued to worry her until after the chiropractic treatment when she felt well enough not to have to continue. She agreed that many typists suffer from symptoms in the back and I am not convinced that there will be any persistent disability into the future in this regard which results from the plaintiff's injury. The plaintiff agreed in crossexamination that she was able to carry on with the general household chores even before she was married. I think that an appropriate award for all damages, including general damages and loss of a couple of days work and out-of-pocket expenses agreed at $967.40 should be assessed at $8,000.

21. I deal now with the claim brought by Mrs. Caterina Raso, who was the mother of the other plaintiffs. Mrs. Raso was born on 25 August 1942 in Italy. She migrated to Australia with her parents in 1958 and she married in 1961. She had been educated to primary school level in Italy. After her marriage she attended to full-time domestic duties until 1975 when she obtained a position as a tea-lady with the Department of Environment. She continues in that position.

22. The plaintiff claimed that she was in good health prior to her injury apart from a gall bladder operation. She said that after the injury she was upset, shaken, hurt in the neck and shoulder and although "bad everywhere" her problems were mainly in the right shoulder and down the back and the ribs. She went home with her daughter Maria and immediately lay down in tears. She was upset over the following day and saw Dr Nancy Griffiths with her daughters on 13 April. The report from Dr Griffiths states that the plaintiff complained of stiff neck and pain on all movements of the neck together with headache. Dr Griffiths noted several bruises but does not say where they were. The plaintiff was anxious and tearful at that stage. Dr Griffiths saw the plaintiff again on 20 April and 5 May when she continued to exhibit nervousness and complained of insomnia. Dr Griffiths referred the plaintiff to Dr Cassar.

23. Dr Cassar in his reports noted that the plaintiff was first seen by him on 17 June 1983 for insomnia and fatigue and he placed her on anti-depressant tranquillizing and weightreducing medication until 3 August 1983. It seems that the plaintiff did not tell Dr Cassar of the motor vehicle collision until 10 April 1984 by which stage she stated that she had developed a chronic right neck and right shoulder discomfort. In retrospect, Dr Cassar came to the view that the nervousness and insomnia with which the plaintiff had presented in June 1983 had emanated from the motor vehicle collision. Despite a certain amount of confusion, I accept this assessment. At any rate, once the causes had been sorted out by Dr Cassar, treatment by way of medication, exercise and the application of heat led to a reasonable recovery at least as far as the physical symptoms were concerned by about September 1984. I think the plaintiff ought to be given her full loss of wages for that period. She lost another two weeks or so in 1985, but I am not satisfied that this was due to injury. In the words of the plaintiff herself, after the end of 1984 she probably lost a day or so for flu, but nothing substantially more. She says that she found and continues to find some of the household duties difficult such as vacuuming, mopping and hanging out the washing. However, I am not convinced that there was any physical disability beyond the end of 1984.

24. Dr Andrews saw the plaintiff on reference from Dr Griffiths, the first occasion being on 30 May 1983. The plaintiff complained of injury to the neck and the right shoulder, but x-rays taken of the cervical and thoracic spine and right shoulder were within normal limits. Dr Andrews prescribed Tryptanol for the headaches and recommended the use of a cervical collar. However, when he next saw the plaintiff on 3 August 1983 she had declined to take the tablets or to wear a cervical collar, although she claimed that the headache and thoracic pain had not decreased. On 8 April 1986 when the plaintiff was reviewed by Dr Andrews, he formed the view that the plaintiff's condition was stable although it might be improved by means such as Cortisone injection. He also noted some tenosynovitis in the right thumb and was unable to explain the cause of pain on the right chest wall of which the plaintiff was complaining. I observe the plaintiff has not made that complaint in these proceedings.

25. Cross-examination of the plaintiff revealed that she has been troubled by some events concerning a fire said to have destroyed or damaged a holiday home owned by Mrs. Raso and her husband. I think that the probabilities are that as far as the present situation relating to her nervous condition is concerned, this is overwhelmingly due to the worry associated with events which have nothing to do with her injury and which were not foreseeable. I think the plaintiff's complaints of headache and neck and shoulder pain since the end of 1984 have either been exaggerated or due to the supervening events or both. I think she should be allowed her four weeks loss of wages to the end of that year, amounting to about $700 net. To this I add the out-of-pocket expenses of $771.60 and I award $6,000 for all other heads of damages, making a total in all of $7,471.60.

26. I turn now to the claim brought by Adriana. She was born on 9 April 1967. She had just turned 16 years of age at the time of her injury. She was a schoolgirl. She was shaken up immediately after the injury itself and was taken to school by Mr. McGurgan, the witness. However, during the morning her sister, Christina, arrived and took her home by taxi. She found that her back was stiff and she said in evidence that she felt pain on the inner aspect of her right forearm. Like her sisters, she saw Dr Griffiths two days later. She lost no time from school. She complained in evidence that her neck is sore "up and down" and across the shoulders and she has pain in the back and headaches. She was referred to Dr Andrews in May 1983 by which time she said her arm had improved a little but that her headaches continued. She said that her arm "still plays up" and that her back and neck give pain occasionally. In cross-examination, however, she was somewhat inconsistent on the matters of the location and incidence of her symptoms. She agreed that she told somebody on a previous occasion that the pain in the neck was on the right side only and she stated further that if she had said this then it was true. It was not clear from what she said in crossexamination whether the pain in her arm sometimes goes beyond the elbow into the upper arm or whether it is restricted to the lower arm, whether it is on the inside or outside aspect of the arm, or whether it radiates upwards or downwards. She agreed that she told Dr Andrews that the pain radiates from the upper arm down to the elbow.

27. Dr Griffiths said in her report of 6 August 1983 that Adriana complained of pain in the right arm when she writes, and I accept that this was so whilst the plaintiff was at school. This was confirmed by her complaints to Dr Andrews when he saw her first on 30 May 1983. At that stage the plaintiff was also complaining of headaches once or twice a week which were readily relieved with panadol. By the time he saw the plaintiff on 1 April 1986, the plaintiff was complaining of very occasional neck pain which occurred if she had to do a lot of continuous desk work in her job as a clerk in a government department. This pain was relieved by getting up and moving about. At that stage the headache was completely resolved and any pain felt in the right arm was not considered by Dr Andrews to be associated with the injury.

28. Dr Cassar saw the plaintiff Adriana on 11 September 1984 and his views were similar to those of Dr Andrews although he predicted that the plaintiff would have an altered quality of life together with fatigue and ache in the right elbow and forearm for a two year period from the time of the accident. In my view, the plaintiff's difficulties were well resolved within that two year period, although they still existed as at September 1984. I think that an appropriate amount to award the plaintiff by way of damages is $5,000 together with her out-of-pocket expenses of $138.60, making a total damages of $5,138.60.

29. There will be judgment for the plaintiff Maria Raso for $20,910.87, for Christina Staltari for $8,000, for Caterina Raso for $7,471.60 and for Adriana Raso for $5,138.60.

30. I order the defendant to pay each of the plaintiffs' costs.