John Chik By His Next Friend and Mother Nativeaty Chik v Siona Tova Sitauti [1991] ACTSC 1 (29 January 1991)

SUPREME COURT OF THE ACT

JOHN CHIK by his next friend and mother NATIVEATY CHIK v. SIONA TOVA SITAUTI
S.C. No. 488 of 1987
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master Hogan(1)

CATCHWORDS

Damages - Personal Injuries - Motor Vehicle Accident - Liability - Child 5 years - Running from Mother's grasp - Negligence - Contributory Negligence - Fractured Femur - Complete Recovery - No issue of Principle

HEARING

CANBERRA
29:1:1991

Counsel for the Plaintiff: Mr Whitelaw

Solicitors for the Plaintiff: Pamela Coward and Associates

Counsel for the Defendant: Mr G. Parker

Solicitors for the Defendant: Messrs Abbott Tout Russell Kennedy

ORDER

Judgment be entered for the Plaintiff in the sum of $57,674.65.

DECISION

This is an action for damages for personal injuries suffered by the infant plaintiff when he was struck by a motor car on 6 June 1986.

2. At the time of the accident the plaintiff was five years old. At about 3.45 p.m. on Friday 6 June 1986 he was travelling on a bus with his mother.

3. When the bus came to a regular bus stop in Chuculba Crescent they alighted from the bus by the front door. After the bus moved off they began to cross the road. At first his mother was holding him by her left hand.

4. As they began to cross the road the defendant was driving a Ford Falcon Sedan towards the bus stop, in a direction opposite to that in which the bus was travelling.

5. The plaintiff pulled away from his mother's grasp, and began to run across the road.

6. The defendant braked heavily, but the right hand front headlight of the car collided with the plaintiff, throwing him onto the bonnet, from where he fell on to the roadway as the car stopped.

7. The essential elements of negligence alleged against the defendant were driving at an excessive speed and failing to keep a proper lookout.

8. In the direction in which the defendant was travelling he had come over the crest of a hill at a considerable distance back from the bus stop, as can clearly be seen in photographs 1 and 2 in exhibit 1. Chuculba Crescent has one lane in each direction, and comes to the head of a T intersection with Baldwin Drive at a shorter distance past the bus stop, as can be seen in photograph 12 in exhibit 2. The defendant's view was unobstructed from the crest of the hill to the intersection. The bus was the only other vehicle on that stretch of roadway.

9. The defendant's evidence was that as he approached the point at which the collision occurred he was driving at between 50 and 60 kilometres an hour. He gave the same estimate in the statement that he made to the police that same day. The speed limit applicable was 60.

10. His evidence was in general to the same effect as his statement to the police. In that statement he continued:
As I came along Chuculba Crescent I saw a bus stopped at

the bus stop on the western side of the roadway, this bus
then began to move from the bus stop in a northerly
direction at a normal rate of speed. I did not see
whether any people got off the bus at the stop.
At a point when the front of my vehicle and the front of
the bus passed I saw a young pedestrian. The young male
person was running across the roadway in an easterly
direction from behind the bus. When I first saw this
young pedestrian he was about one third of the way across
the roadway and I then saw that he was being chased by a
female person whom I thought immediately was the young
child's mother.
When I saw the young boy running I immediately applied the
brakes of my vehicle and swerved to the left to try and
avoid colliding with the young boy.
At the point when I first saw the young boy he was about
15 metres away from my vehicle and I was unable to avoid
colliding with him. The right hand headlight of my
vehicle then struck the young boy and he fell to the
ground. I think the boy may have rolled onto the bonnet
of my vehicle as I now have a cracked windscreen.
When the impact occurred I was almost at a complete stop
as the young boy stopped just in front of my vehicle."

In that statement the defendant's estimate of the distance between the boy and his car when he first saw him was about 15 metres.

11. When the police were called they observed tyre burn marks on the road. It was not contested that they were made by the defendant's vehicle. The right hand skid mark measured 31 metres, the left hand 33 metres. When allowance is made for the distance that the car would have travelled during the reaction time from the defendant's seeing the boy to the full application of the brakes it is obvious that the distance between the car and the boy when first seen was more of the order of 40 metres.

12. Evidence was given by Mr Jamison, a consulting engineer with extensive traffic experience. Mr Jamison inspected the scene of the accident, and the assumptions on which he based his estimates were not, to my mind, displaced in cross-examination. He estimated that the likely pre-braking speed of the defendant's vehicle was 79 kilometres an hour, plus or minus 5 kilometres an hour. He also gave it as his opinion that it would have to be considered as impossible for the defendant's vehicle to be travelling at 50 to 60 kilometres an hour and leave skid marks of the length observed.

13. The only evidence to the contrary of Mr Jamison's estimate of speed is the defendant's own estimate. That was based upon recollection after the event, and not upon observation of his speedometer at the relevant time.

14. I am satisfied on the balance of probabilities that the defendant's speed as he approached the bus stop was in excess of 60 kilometres an hour.

15. To that consideration there must be added the fact that the defendant had seen that the bus had stopped at a stop. He did not know whether people had alighted from it or got on. The bus had begun to move off before he passed it in the opposite direction. The bus obstructed his vision of the part of the footpath from which the plaintiff and his mother were coming.

16. It was in all the circumstances a situation which called for care, and a reduction in speed, until the defendant could see whether someone was crossing the road. Sadly, only a slight reduction in speed would have sufficed, as the defendant's vehicle travelled only about a metre or less after the collision.

17. I am satisfied that the defendant was travelling too fast in circumstances where he should have slowed down till his opportunity for observing the plaintiff would have been greater, and that his failure to do so was a cause of the plaintiff's injuries.

18. A defence of contributory negligence was formally raised, but there was no evidence of the plaintiff's knowledge of his obligation to take care for his own safety in the circumstances, and I am not prepared to hold that it is obvious that a five year old child must have that knowledge. I am not satisfied that the plaintiff's own fault caused or contributed to his damage.

19. The plaintiff was knocked unconscious in the collision. He was taken in the defendant's vehicle to Calvary Hospital. While there he regained consciousness. He had an obvious fracture of the left femur, which was stabilised. After about an hour he was transferred to Royal Canberra Hospital, where he came under the care of Dr Simpson, pediatrician.

20. Dr Simpson noted superficial abrasions to the head, thorax, abdomen and left leg, and the closed fracture of the left femur. He also saw evidence of severe abdominal trauma, in that the child's abdomen was distended and very tender, with signs of internal bleeding.

21. X-rays confirmed the left leg fracture and disclosed a closed and undisplaced fracture of the left clavicle. The left leg was placed in traction. Otherwise treatment was conservative. After about 72 hours the plaintiff was fully conscious and his abdomen was sound.

22. Treatment of the fractures was undertaken by Dr Peter Morris. The clavicle healed fully without further problems. The leg remained in traction until 14 July, when a hip spica plaster was applied. He was discharged from hospital on 16 July.

23. At home, while the plaster remained on, he was able to get around on a large skateboard. The cast was removed about 27 August. He then spent some time on crutches, until about 7 October.

24. Dr Simpson reviewed the plaintiff on 20 March 1990. He saw no evidence of any physical abnormality attributable to the accident. Dr Morris reviewed him on 18 June 1990. Both the femur and the clavicle had totally united and were normal. Dr Morris could find no evidence of any weakness, loss of mobility or limb length discrepancy.

25. The total experience would have been distressing for a young child. The hospital notes display a constant picture of no complaint of pain, but I accept that he would have been quite uncomfortable from time to time in hospital, and for some time afterwards. He would also have been quite bored.

26. When he came home from hospital his parents noticed some emotional changes. He had a fear of being left alone, cried easily, showed some loss of confidence, and jealousy towards his younger brother. At times they found him aggressive and difficult to handle. On the other hand the photographs taken by his father show the cheerful, self possessed and bright youngster whom I observed in Court.

27. Nevertheless, his parents were sufficiently concerned about his attitude and behaviour for his general practitioner to refer him to Dr Lee, consultant psychiatrist, in March 1987. Dr Lee had four therapeutic sessions with him. He concluded that psychologically he suffered a post traumatic stress response, involving not only a reaction to the shock, physical pain and incapacity, but also a separation anxiety syndrome from his confinement and physical incapacity.

28. He had improved, but still had residual problems of dependency and insecurity in July 1987, when visits to Dr Lee ceased. On review in May 1990 Dr Lee thought, based on what the parents told him, that the plaintiff had improved gradually over the years, that there were still some residual problems of insecurity, but that he would achieve stable functioning in the future.

29. It seems to me that the conclusion in his favour of these proceedings, without any blame whatsoever being attached to her, will probably help his mother particularly to allow the accident to recede into the past. I agree with Dr Lee that her acceptance of the events will help her son adjust completely.

30. The plaintiff suffered a head injury, abdominal injury, a minor fracture of the clavicle, and a fracture of a major bone. His physical recovery was uneventful and complete. He now has very little memory of what happened. The emotional trauma lasted longer but was not major and has now receded. There are no future disabilities.

31. For his pain and suffering I would award the sum of $30,000.00.

32. A claim has been made for the value of the services voluntarily provided by his mother from the time when he came home from the hospital till he was able to go to school without assistance.

33. The claim was contested on the basis that a 5 1/2 year old child makes considerable demands on a mother in any event, and the services were not of a kind contemplated by the law as set out in the relevant cases.

34. I think that it is obvious that for some time the services provided by the mother were a mixture of those that would normally arise from the caring relationship, and those that were of a nursing nature which it would have been reasonable to provide at a cost had the mother not been able to provide them voluntarily. The nursing type care would have been fairly constant during the first week or so after discharge from hospital, and still considerable while he afterwards remained in the cast. Thereafter, I do not think that there was much that needed to be done which it would have been necessary or reasonable to provide at a cost. Overall I would assess the value of the nursing type services, as I have described them, at $3,000.00.

35. In lieu of interest on those amounts I allow a lump sum of $13,000.00. The out-of-pocket expenses are agreed at $11,674.65.

36. The total award is therefore made up as follows:

General Damages $30,000.00
Griffiths v Kerkemeyer $ 3,000.00
out-of-pocket expenses $11,674.65
Interest $13,000.00
Total $57,674.65

I direct the entry of judgment for the plaintiff in the sum of $57,674.65.

37. Because of the plaintiff's age I will hear counsel on the consequential orders that should be made.