Michelle Anne Mahoney v Derek Firth-Suckling [1991] ACTSC 19 (8 March 1991)

SUPREME COURT OF THE ACT

MICHELLE ANNE MAHONEY v. DEREK FIRTH-SUCKLING
S.C. No. 121 of 1989
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - Motor Vehicle Accident - Intersection - Give Way Signs - Contributory Negligence - Failure to Look - No Issue of Principle.

Damages - Personal Injury - Scalp Laceration - Soft Tissue Injury to Back - No Issue of Principle.

HEARING

CANBERRA
8:3:1991

Counsel for the Plaintiff: Mr R. Mildren

Solicitors for the Plaintiff: Gallens Crowley and Chamberlain

Counsel for the Defendant: Mr Crittle

Solicitors for the Defendant: Crossin Power Haslem

ORDER

Judgment be entered for the plaintiff in the sum of $23,589.28.

DECISION

This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 4 March 1987.

2. The plaintiff was then 18, and studying at Signadou College. She has now qualified and is employed as a teacher at Wellington in New South Wales.

3. On 4 March 1987 she was driving a Mitsubishi Colt sedan in La Perouse Street, Red Hill. There were two other student teachers in the vehicle with her. They were proceeding to a tutorial at a swimming pool at Deakin.

4. As she approached the intersection of La Perouse Street with Monaro Crescent she claims that she started to slow down, as she was aware of a primary school just beyond the intersection.

5. She looked to her right as she approached the intersection, but did not see any vehicle approaching. She looked to her left and proceeded into the intersection. She then saw a blur on her right, and there was a collision. Her car went off the road and on to the grass on the side of the road.

6. The police were called. Constable Dubickas gave evidence. Monaro Crescent consists of a single carriageway running north south. La Perouse Street is a single carriageway running east west. The intersection is controlled by give way signs facing northbound and southbound traffic travelling on Monaro Crescent.

7. The plaintiff's vehicle had major damage to the front. There was a Toyota Land Cruiser on La Perouse Street, which had minor damage to the left hand front.

8. Constable Dubickas spoke to the defendant, the driver of the Land Cruiser. He told the constable that he had been travelling north in Monaro Crescent. He was driving slowly. He was lost. Asked how the collision occurred he replied, "Well, I reached this intersection here. The road seemed clear, I proceeded across the road. I then saw a little car whizzing down, I jammed my brakes on then she pushed me around."

9. Asked whether he saw the give way sign he replied, "Quite honestly I did not see the give way sign. I was lost and travelling slowly."

10. I am satisfied that the defendant failed to take reasonable care in that he did not keep sufficient look out so as to observe the give way sign, and did not obey the sign so as to allow the plaintiff to pass in front of him. There will therefore be judgment for the plaintiff.

11. A defence of contributory negligence was raised. I am satisfied that the plaintiff was not travelling at an excessive speed. There was ample time for her to reach her destination, despite the fact that she had taken a wrong turning. She was aware of the school zone beyond the intersection.

12. I am not able to draw any inference about her speed from the force of the collision or relative weights of the vehicles.

13. However, there was no evidence of anything to obscure her vision of traffic on Monaro Crescent. She looked to her right, but did not see anything. A slow moving Toyota Land Cruiser was there to be seen. For such time as her passenger observed it, it was showing no sign of slowing down. The conclusion is inescapable that she did not look carefully enough. Had she done so, and seen that the defendant was not giving way, she might well have been able to avoid the collision.

14. In apportioning responsibility I have regard to the fact that the major obligation was on the defendant to have observed and obeyed the sign. Had he done so, the accident would certainly not have happened. I do not accept that he did stop at the intersection before proceeding. He was travelling slowly, and had he been only a foot short of where he was the plaintiff's car would have missed his. I would apportion responsibility as to 75% to the defendant and as to 25% to the plaintiff.

15. The plaintiff was wearing a seat belt. She lost consciousness for a short time. I accept her evidence that she came to lying on the grass at the side of the road. She had pains in her head, and a laceration in her scalp was bleeding. She also felt pain in her right arm, right leg, back and neck.

16. She was taken by ambulance to Woden Valley Hospital. The scalp wound was sutured with three or four stitches. X-rays of her skull and cervical spine did not disclose any bony injury. She was kept under observation for four hours, and allowed home with analgesics.

17. She saw her general practitioner, Dr Goldrick, the next day. Her knee, neck and back were painful. On 10 March 1987 the pain was still severe and her headaches were still a problem. Analgesics were prescribed. On 18 March she was still extremely bruised and complaining of a painful back. There was marked limitation of movement, and Dr Goldrick prescribed physiotherapy.

18. She had four physiotherapy sessions over the next six weeks. Anti-inflammatory medicine was giving some relief.

19. On 21 October 1987 Dr Kitchin examined her, at Dr Goldrick's request. Her complaints then were of constant low back pain. There was no radiation to the lower limbs. There was pain in the neck and shoulders and tenderness in the upper limbs, though no radiation of pain to the arms. There was a good range of movement. His diagnosis was that her symptoms were muscular in origin.

20. On 3 December 1987 she told Dr Goldrick her back was improving, and she had stopped taking medication.

21. She was still suffering some pain in her lumbar spine, and her neck and shoulders were tense. She had six visits to Mr Wyss, chiropractor, between February and May 1988.

22. In August 1988 her solicitors sought an opinion from Dr Keiller. Her complaints were that her neck was still sore, and pain in the neck, shoulders and back was aggravated by long distance travelling or prolonged sitting or standing.

23. On examination there was residual tenderness in the neck muscles and in the lower and thoracic vertebrae. His opinion was that she had sustained soft tissue injuries to her neck and thoracic spine, and that her symptoms should reduce over the next year or two to a very low level.

24. In October 1989 Dr Kitchin found she still had ongoing symptoms. He arranged for CT scans, which did not show any abnormality. He thought her condition was not likely to improve significantly.

25. She had continued to see Mr Wyss, three times in 1988, three times in 1989 and twice in 1990.

26. She finished her teacher training and obtained an appointment to an infants school at Wellington.

27. In January 1990 Dr Andrea and Dr Andrews examined her on behalf of the defendant. Their views do not differ significantly from those of Dr Keiller.

28. The plaintiff still suffers some occasional discomfort, and feels restricted in her sporting ability, and needs to exercise care in her movements when teaching. The laceration to her scalp was within the hairline, and there is no visible scar.

29. For her pain and suffering I would award $25,000.00. I award $4,010.00 interest on that sum, at 4%.

30. There has been no loss of income. The out-of-pocket expenses are agreed at $2,442.37.

31. An award on the basis of full compensation would be made up as follows:
Pain and suffering $25,000.00

Interest $4,010.00
Out-of-pocket expenses $2,442.37
Total $31,452.37

After deducting 25% for contributory negligence, the amount to be awarded is $23,589.28.

32. I direct the entry of judgment for the plaintiff in the sum of $23,589.28.