Mirta Geuna v Jason Charles Osborn and Patricia Ann Osborn [1988] ACTSC 21 (15 April 1988)

SUPREME COURT OF THE ACT

MIRTA GEUNA v. JASON CHARLES OSBORN and PATRICIA ANN OSBORN
S.C. No. 92 of 1985
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.

CATCHWORDS

Negligence - Contributory negligence - Assessment of damages - No new question of principle.

HEARING

CANBERRA
15:4:1988

ORDER

There be judgment for the plaintiff against the defendants for the sum of $265,180.

The defendants pay the plaintiff's costs of and incidental to the suit, those costs to be taxed.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff as a result of a collision on 7 October 1984.

2. At about midday on that date the plaintiff was driving her motor vehicle in a general northerly direction in Baracchi Crescent at a speed which I find to have been between 40 and 45 kilometres per hour The first defendant was driving his motor vehicle in a general southerly direction in the same street. Giving evidence, he estimated his speed at not more than 20 kilometres per hour and I accept that. The two vehicles came into collision. At the point where they collided, Baracchi Crescent is curved so that vehicles travelling in the direction in which the plaintiff was are turning towards the right and vehicles travelling in the direction which the first defendant was are turning towards the left.

3. The plaintiff gave evidence that she saw the first defendant's vehicle travelling, as it appeared to her, on its correct side of the road. She estimated that it was some 35 metres from her when she first saw it. She then turned her eyes from it and very shortly afterwards looked back to find that the first defendant's vehicle was very much on her side of the road. All her vehicle, she said, was on the correct, that is on the western, side of the road. There was no line marking in the centre of the road. She said she was unable to do anything, although she did try to stop and I am satisfied that she did apply her brakes. She said that she noted that the driver of the other vehicle was not looking at her but was looking somewhere else.

4. Her evidence was to the effect that for at least some distance she had been travelling wholly on the correct side of Baracchi Crescent. However, at the scene of the collision she told an investigating police officer, First Constable Susan Collett, that prior to the collision she had been travelling north on Baracchi Crescent and had momentarily moved to her right, slightly to the incorrect side of the roadway, to avoid parked vehicles. She had then moved back into her lane of traffic where the collision occurred.

5. Constable Collett asked the first defendant for his opinion as to the cause of the collision. He replied, "I wasn't watching the road". He also said that he was looking somewhere else.

6. Senior Constable Burgoyne of the Western Australian Police, then on secondment in the Australian Capital Territory, heard the noise of the collision and attended at the scene. He noted that moves were afoot to have the vehicles shifted because they were blocking the roadway. He marked the outline of the two vehicles in chalk.

7. Senior Constable Regent who, with Constable Collett, investigated the accident, drew a sketch of the location of the vehicles at the scene of the accident. He noted a brake mark extending from the right front tyre of the Plaintiff's vehicle. I am satisfied from his evidence, from the sketch and, indeed, from the plaintiff's evidence, that her vehicle was completely on its correct, that is the western, side of the roadway when the collision occurred. This is borne out, I think, by the sketch which indicates the path taken by the plaintiff's vehicle immediately before the collision to have been from slightly on its incorrect (eastern) side of the road to its correct (western) side of the road Although it is not recorded in the sketch there was also a brake mark which led from the left front tyre of her vehicle. There were tyre marks which led for a short distance, no more than about two feet, from each of the front tyres of the first defendant's vehicle Having regard to the difference in the speeds at which the two vehicles were travelling, this indicates, I think, that the plaintiff's vehicle, travelling faster, struck the first defendant's vehicle and drove it back a little.

8. Constable Regent established the point of impact as being on the western side of the roadway and this, I think, corroborated the plaintiff's evidence.

9. The first defendant's mother, the second defendant, gave evidence of finding debris on the eastern side of the road in such a position as to indicate that the collision may have taken place on that side of the road. However, I am satisfied on the evidence led on behalf of the plaintiff, the plaintiff's, First Constable Collett's, Senior Constable Regent's and Senior Constable Burgoyne's, that this did not happen.

10. I find, therefore, that the first defendant was negligent in driving on his incorrect side of the roadway and in failing to keep a proper lookout.

11. The defendants have alleged that the plaintiff contributed to her own damage by driving on the wrong side of the street. I am satisfied that at the critical point she did not do so I am also satisfied that when she moved slightly onto her incorrect side, as I find she did, she did not cause the first defendant any difficulty because he did not see what had happened. By the time the collision occurred she was and had been for a short distance back on her correct side of the roadway. Had the first defendant kept a proper lookout and remained on his correct side of the roadway the collision would not have happened. I think, if anything, that the collision took place closer to the western kerb of the street than the sketch plan made by Senior Constable Regent indicated. For this I rely particularly on the evidence of Senior Constable Burgoyne who impressed me as a witness of experience and keen observation. It is to be noted that the sketch prepared by Senior Constable Regent was made after the vehicles had been moved.

12. There must accordingly be judgment for the plaintiff. I find that she was not guilty of contributory negligence.

13. The plaintiff was born in Argentina on 27 May 1946. She left school when aged 14, not having attended High School. Thereafter for a time she helped her father in a small restaurant. She married in Argentina and has four children, Roxanna born in 1966, Alexander born in 1967, Veronica born in 1971 and Maximilian born in 1978. She came to Australia with her husband and children in September 1973. They lived first in Melbourne where she gained employment in a factory doing welding work. The family moved to Canberra in 1974. The plaintiff got work immediately as a tea lady at Alambee Nursing Home where she worked for about eight or nine months. She then obtained full time employment at the Canberra College of Advanced Education as a cleaner. She was employed there for about five years. Thereafter she worked as a casual housemaid at the Travelodge Motel in Northbourne Avenue and at the Carotel Caravan Park. Between the two jobs she seems to have worked each week for at least a normal working week. She may well have worked more than a normal working week because she did weekend work as well. However, it is unnecessary to make any finding as to the amount of time she worked each week because at the time of the accident in which she was injured she had arranged to work as a full time housemaid at the Travelodge Motel. Amongst the benefits which she expected to receive from such full time employment was superannuation and, of course, stability of employment. She had already worked for Travelodge as a casual housemaid for something like three years. Her work history, therefore, is one of general stability and, subject to unfavourable contingencies, I think she could have been expected to have worked to retiring age, whatever that might have been in her circumstances.

14. After the accident she felt bad. She stayed in the car. She felt shocked. Her husband and son came and got her out of the car. She lay on some nearby grass because she could not stand. She went to Calvary Hospital where she was given a soft cervical collar. She was still in shock when she left. She had what she described as very bad pain in her neck, back, at the top of her shoulders and in her right arm. She consulted her general practitioner, Dr Choong. She was still in pain when she consulted him. She described the back pain as being present centrally just below the belt line. She was x-rayed and given tablets for the pain. Physiotherapy was prescribed and she was told to keep on working. The physiotherapy continued for some months but was ineffective. The pain continued in the same places. She developed headaches. They manifested themselves from her neck to the top of her head and she suffered them often three or four days a week. Sometimes one headache would last three days or longer. She took Panadol for the headache but it didn't help.

15. Dr Choong referred her to an orthopaedic surgeon, Dr Kitchin, on 7 March 1985. She gave a history consistent with that which she gave in evidence. Dr Kitchin diagnosed her as having a cervical disc lesion and referred her to Dr Robson, a neurosurgeon.

16. The plaintiff complained to Dr Robson of a painful neck with some rightsided indications and rightsided pain in the arm, at least in the early stages. He said that she told him that she now had most trouble with the neck and a lot of trouble with headache which started at the back (of the neck and spread over the top. This, he said, was a very typical accompaniment of trouble in the neck. She also complained of pain in the lower thoracic region but Dr Robson was unable to link this necessarily with the disc trouble in the neck itself. He said that she did not then appear to have any strictly low back pain. Dr Robson reported as follows:-
"X-rays show her to be narrow at 4-5 and 5-6,

and there is in fact quite a lot of
degenerative change at 4-5 I think
therefore that she is one of these people who
almost certainly had a very minimally
radiographically imperfect neck, which was
symptomless, and then had a car accident
which made it painful. This is a fairly
standard story,...."

17. The plaintiff underwent surgery at the hands of Dr Robson on 10 April 1986. The two suspect discs were found to be ruptured and were removed. Grafts were inserted. A CT scan of the cervical spine on 26 November 1986 showed an apparently technically successful operation.

18. Reporting to Dr Kitchin on 11 May 1987, Dr Robson said that the x-rays showed her to be solidly fused at C4-5-6. Nevertheless she was "still variously uncomfortable around the shoulders and right arm, but (Dr Robson) really could not find any objective evidence of something at fault there".

19. On 1 November 1985, Dr Robson saw the plaintiff because of the onset in the last four weeks of pain in the back and pain in both legs. He said:-

"She had this originally in her letter of
referral, but I did not pursue that topic
when I saw her last."

20. Despite continuing complaints of pain in the lumbar spinal area the plaintiff has not had the necessary radiographic examinations which might indicate that surgery was warranted. She is reluctant to undergo further surgery.

21. She consulted Dr Andrews, a neurologist, on 18 November 1986. She complained to him that following surgery she still had some neck pain on the right hand side radiating into the trapezius region with ache down the right arm and pins and needles sensation described as ants crawling over her skin involving the right ring and little fingers. She had some low back pain and a heaviness feeling in the leg. On physical examination, Dr Andrews found moderate restriction of neck movement and that straight leg raising in the right leg to 60 degree produced some right leg pain. There were no abnormal neurological signs. Dr Andrews arranged for a CT scan of the cervical spine which looked satisfactory. He was expecting that there might have been a further disc lesion at C6-7 but it did not show up. He also thought there might be a lumbar disc lesion present, given her story. He concluded that she remained in persistent pain. He did not think that "we have seen the end of her investigation". She did not seem to him to be keen on the idea of any further surgery. He thought that irritability and moodiness of which she complained was secondary to her chronic pain. He thought it stopped her from going to work and attending to her normal household duties such as cooking and cleaning, ironing, making beds and hanging clothes on the line. He thought her long term prognosis for return to work looked poor.

22. Dr Andrews reviewed her on 24 September 1987. He said that in summary he did not see much change in her medical condition or signs. She still had neck pain and headaches that were occipito-frontal, she tended to drop things from the right hand, she had some low back pain and a general heaviness in the legs without precise sciatica. She regarded the earlier surgery as a complete failure and although she had seen Dr Robson the week before she saw Dr Andrews nothing further was planned. In particular nothing had been said about further surgery. She was taking Brufen and Sinequan spasmodically. She was not working and said that her housework was severely restricted. Dr Andrews found on examination that there was some movement restriction in the neck to the left at C5-6 and 6-7. There was diminished straight leg raising, in the right leg to 30 degrees, in the left leg to 40 degrees. This produced low back pain but no sciatic pain. There were no abnormal neurological signs. Dr Andrews considered the pattern of her illness pretty much as in his early report. He gave the same prognosis. He thought her long term prognosis was poor and did not think she would be returning to work.

23. The plaintiff gave evidence that before her accident she did much the greater part of the housework, cooking, cleaning, washing and at least a substantial part of the gardening which her husband didn't like doing. I gained the impression that she had been a very energetic, vital person who did not seek much assistance from her children or her husband in and about the work of the household. This was her own choice. For some three or four months after her surgery she was unable to do any housework. Now she can to a limited degree. She says that she still has pain in the same places. She says that the condition of her lower back is the same and that nothing has got better. She has headaches two, three or four times a week which sometimes last for days. Her lower back pains particularly when she has been walking or sitting for a long time. She cannot bend down to pick up heavy things. If she does it only makes the pain in her lower back worse.

24. Her sexual relationship with her husband has deteriorated and there are quarrels, although these may be in part due to the fact that she is frequently absent from home visiting a friend and is therefore not at home to take business calls on behalf of her husband. She and her husband have had counselling because of the difficulties in their marriage. At one stage she left home but has since returned. She described herself as having bad moods when she was in pain.

25. She said that the scar left by the operation on her neck, some 7 centimetres long, worries her. It itch's and becomes red and when it does it needs covering. The scar on her hip whence the bone for the graft in the cervical spine was taken causes her little difficulty. She drops things such as glasses and plates.

26. I am satisfied that she does most of the cooking and a good deal of the rest of the housework but she needs and gets also more help from her family than she used before the accident. She has some difficulties with sleeping, perhaps 3-4 times a week. She still takes Sinequan and Brufen at a total cost per week of approximately $1.40.

27. I am satisfied that the plaintiff suffers and continues to suffer significant disabling pain following the accident. I find that but for the accident she would have continued to work probably until the age of about 65 subject to contingencies which I would regard in her case as generally unfavourable.

28. I regarded the plaintiff as a witness of truth. She was cross-examined as to a number of activities in which she had obviously engaged and admitted quite frankly that she had done so. She said that by mid-July 1986 she was doing housework, hanging out washing and driving a car, that she was going to bingo at the Tradesmen's Club one or two days a week and playing games for up to an hour without discomfort, although she would stay at the Club for up to three hours. She would do light shopping, carrying light bags in each hand. She was seen in August 1986 to run from a Club down some steps to the carpark nearby but when she did so she said she suffered pain. As I understood her, she said she couldn't stop doing everything because of pain. She could not remember why she had run on that particular occasion. Cross-examined as to whether she could reverse her car without trouble she said that she had trouble reversing it and had to turn all her body to do it She agreed that she could still dance but would have to go home much earlier than she used, usually at about 11 o'clock. She likes dancing so is prepared to put up with the pain that it causes. She has not looked for work because she is satisfied that the only work she is fitted for is work she could not do.

29. It was put to her that she might be able to work as a shop assistant or as a waitress in a coffee shop. She agreed that she had not made inquiries for work at the Commonwealth Employment Service or asked friends for a job and that she had made no effort to find work. She agreed she could carry wet washing to the clothes line to hang it out.

30. Generally, I am satisfied that the plaintiff is substantially disabled. However, she impresses as a woman of vigour and vitality despite her injury and disability and I expect that in due course she will find something to do within her residual capacity. I fix that residual capacity at 35%

31. The plaintiff's husband and elder daughter gave evidence which generally supported her. They told of the amount of time they spent in assisting her with housework now when they had done little or none before. I found their estimates of time in doing this work unsatisfactory. Initially they seemed to be much too high and subsequently much too low. I think a finding that from about August 1986 onwards the plaintiff has received about 4 hours domestic assistance from her family which she did not need before the accident and which is now necessary because of her incapacity as a result of the accident would do justice to both parties.

32. In reaching a view as to the plaintiff's residual incapacity, I have taken into account the material put to Drs Robson and Andrews in cross-examination by counsel for the defendants I do not doubt that the plaintiff had some residual capacity for work but I think that any suggestion that she might be able to work for a full day at any of the several occupations suggested during the course of argument and in cross-examination simply does not bear examination

33. I do not think the plaintiff will come again to surgery. Even if she were to do so, I think the probabilities are that the results would be unfavourable having regard to her previous experience. In all the circumstances I do not think it unreasonable of her to refuse further surgery.

34. I think she will continue to have pain for the rest of her life to much the same degree as she presently has.

35. I see no reason to doubt that the plaintiff would have wished to work until she was aged at least 65. Many women with her background do and one can well understand that her reasons for doing so would not be just economic. Emotional factors would play a substantial part. At the same time, as I have already indicated, contingencies in her case must generally be accepted as unfavourable. I think the proper approach is to treat those contingencies as being fully taken into account if one assumes that she would, but for the accident, have worked until she was 60.

36. Past loss of wages net after taxation, assuming no unfavourable contingencies, amounts to $36,467.07. Making a modest allowance for contingencies, I think the appropriate amount to allow under this head is $36,000.

37. At present the plaintiff, were she still employed as a permanent housemaid at Travelodge, Northbourne Avenue, would be earning $217.55 net after taxation per week. For the period to her 60th birthday, discounting by 3%, her total loss at that rate will be $172,082. Allowing a residual capacity of 35%, I estimate her future economic loss at $111,850.

38. For the Griffiths v. Kerkemeyer component of the plaintiff's loss I allow four months at 15 hours per week to allow for her total incapacity from doing housework after surgery and thereafter I allow 4 hours per week to reach a total, which I have discounted appropriately and rounded very slightly, of $47,750.

39. For pain and suffering, loss of amenities of life and disturbance of her marriage to the extent to which I am satisfied the accident contributed to it, I allow the sum of $50,000 which takes into account what I think has been a severe blow to this vigorous and vital woman's life. It takes into account also the fact that to some degree she has compensated for loss of amenities by engaging in other social activities acceptable to her.

40. For loss of the amount which her employer might have been expected to contribute to a superannuation fund which she planned to join upon taking up employment as a full time permanent employee of Travelodge, I allow $3,000. The figures put in evidence are based on retirement at the age of 65 but I have reduced the amount shown in the actuarial evidence to allow for the view I take that the probability is that she would have retired by the age of 60.

41. For past and future pharmaceutical expenses I allow the sum of $1,600.

42. For interest I allow the sum of $14,980 calculated at 7% for 3 1/2 years on past loss of earnings, at 7% for 3 1/2 years on the sum of $20,000 at which I assess damages for pain and suffering to date and at 7% for 3 years on $6,000 in respect of the Griffith v. Kerkemeyer component to date.

43. There will be judgment for the plaintiff in the sum of $265,180.