Kirsty Jane Daly v the Commonwealth of Australia and the Nominal Defendant [1991] ACTSC 28 (4 April 1991)

SUPREME COURT OF THE ACT

KIRSTY JANE DALY v. THE COMMONWEALTH OF AUSTRALIA AND THE NOMINAL DEFENDANT
S.C. No. 1310 of 1988
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - Motor Vehicle Accident - No Issue of Principle

Damages - Personal Injury - Assessment - Concussion - Fractured Ulna - Soft Tissue Injury - Minor Residual Symptoms - No Issue of Principle

HEARING

CANBERRA
4:4:1991

Counsel for the Plaintiff: Mr G. Stretton

Solicitors for the Plaintiff: Messrs Porter Pilkinton

Counsel for the Firstnamed Defendant: Mr Brewster

Solicitors for the Firstnamed Defendant: ACT Government Solicitor

Counsel for the Secondnamed Defendant: Mr G. Parker

Solicitors for the Secondnamed Defendant: Abbott Tout Russell Kennedy

ORDER

Judgment be entered for the Plaintiff against the defendant Commonwealth in the sum of $65,712.23.

Judgment be entered for the defendant Nominal Defendant in the action by the plaintiff against it, and that the plaintiff pay the costs of the Nominal Defendant of and incidental to that action.

Judgment be entered for the Commonwealth against the Nominal Defendant in the third party proceedings for contribution brought by the Nominal Defendant against the said Commonwealth.

Judgment be entered for the Nominal Defendant against the Commonwealth in the third party proceedings for contribution brought by the Commonwealth against the Nominal Defendant.

The Commonwealth pay the costs of the Nominal Defendant of and incidental to the third party proceedings for contribution brought by the Commonwealth against the Nominal Defendant.

The Defendant Commonwealth pay the Plaintiff's costs of and incidental to the proceedings including the costs which the Plaintiff has been ordered to pay to the Nominal Defendant.

DECISION

This is an action for damages for personal injuries suffered by the plaintiff in a motor vehicle accident on 20 July 1988.

2. The plaintiff was driving a small Escort van south on Ashley Drive Monash. It had been raining, and the roadway was wet.

3. Near the scene of the accident Ashley Drive has one lane for traffic in each direction. Near its intersection with Bugden Avenue it is carried by a viaduct over a pedestrian and cycle path. On, and for a distance each side of, the viaduct the lanes are separated by a double yellow line. There are substantial concrete rails at the outer edge of each traffic lane on the viaduct.

4. As the plaintiff drove normally across the viaduct a bus crossed on to its incorrect side of the road. There was a heavy impact between the right hand front bumper bar and headlight of the bus with the right hand front of the van. The plaintiff had no opportunity of avoiding the collision. She was knocked unconscious, and has no recollection of the accident other than a flash of orange and blue. Her next memory is of waking in Woden Valley Hospital.

5. The police were called. The speed limit in the vicinity is 80 km/hr. The bus driver explained the accident to Constable Ingram as follows:
Q. How did the collision occur?

A. A car braked in front of me, I braked behind it, the
bus swerved towards the concrete bridge and when I
pulled it off it, it swerved towards the otherside
of the road.
Q. How far in front of you was the other car?
A. About 200-300 metres.
Q. What type of vehicle was it?
A. Red Sigma or something similar.
Q. Why did the other vehicle brake?
A. I'm not exactly sure but there was a fair few cars
in front of him.
Q. When did you see his brake lights come on?
A. When I started braking.
Q. How far behind the other vehicle were you when you
started to brake?
A. 2 to 3 hundred metres.
Q. What speed were you doing at this time?
A. About 70kmph.

6. It is obvious that the estimate of 200-300 metres is mistaken. In evidence the bus driver said that as he approached the intersection with Bugden Street a red car came through the stop sign, turned into Ashley Drive, and drove north ahead of him. He was travelling at 70 kmph, and eased off the accelerator when the red car first came out. As it proceeded ahead of him, he maintained a safe and constant distance from the red car and picked up speed again. He saw the brake lights come on. He braked, the bus pulled to the left, close to the concrete wall of the bridge. He released the brakes. The bus swung to the right, crossed the centre line and collided with the plaintiff.

7. The bus driver clearly failed to take reasonable care. There was no evidence that there was anything wrong with the braking system of the bus. It is clear that 70 km an hour on that wet road was too fast for the traffic conditions at the time, and that he got too close to the red car to be able to stop safely.

8. He was not sure whether there was other traffic ahead of the red car. He did not see any reason why it should have stopped.

9. It does not follow that there was none, or that he should not reasonably have contemplated the possibility that the red car might slow down or stop.

10. It was alleged that the driver of the red car was negligent in stopping without sufficient reason. That vehicle was not identified, so that there was no evidence from its driver. There may well have been other traffic ahead of it, either slowing or stopping so as to require it, at least, to slow down. There was no evidence of anything in its manner of stopping to point to a lack of due care in its driving. The plaintiff's action must therefore succeed against the Commonwealth, but fail against the Nominal Defendant.

11. There was no issue raised of any contributory negligence on the part of the plaintiff.

12. At Woden Valley Hospital she was X-rayed. She had sustained a fracture of the right ulna, and concussion with severe headache and vague mental function. She was suffering acute neck strain, pains in the right supraorbital area, her left elbow and forearm were swollen and bruised, her left knee was abraded, very swollen, sore and bruised, her left ankle was moderately swollen, sore and bruised, and the seat belt strap line was sore. She was detained in hospital for three days. Her right arm was set in plaster by Dr Morris. She was discharged with a soft collar neck brace.

13. At home she found it very painful to walk or to remain still for any length of time. She consulted Dr Turtle, her general practitioner, on 26 July 1988. Her neck showed tenderness generally from C2 to C7 with grossly restricted movement in all directions. Dr Turtle referred her to Carole Bond for physiotherapy. She had 28 visits to the physiotherapist between 8 August 1988 and 2 November 1988.

14. Dr Morris reviewed her on 24 August 1988. Her neck injury and knee injury were still causing her considerable discomfort. X-rays showed that the ulnar fracture had not united, so that the plaster cast remained in place.

15. In October 1988 X-rays showed that union was still not complete. It was progressing in November 1988, when it seems the plaster was removed. There was then restriction in pronation of her left forearm.

16. She attempted to return to work, but found it too difficult to continue after a few hours. In November 1988 she travelled to Wales to visit her mother. Her arm was originally supported in sling. There she consulted Dr Gray on 22 November and 5 December 1988. Dr Gray assessed her as being unfit for work for two months from 22 November.

17. In February 1988 she felt that she was fit for work, and returned to Australia. By that time, although she used the neck brace on the plane journey, she was no longer using the sling for her arm. Although she thought she could have gone back to work, she chose to spend some time on leave without pay.

18. In February 1989 she had six more treatments by the physiotherapist. She returned full time to work in May 1989, though she continued to have physiotherapy once or twice a week until the end of 1989.

19. She attended Dr Docherty for acupuncture, and in early 1990 got some relief from treatment by Mr Kwon, an osteopath.

20. In April 1990 Dr Turtle found that the arm had fully recovered normal function and power. The neck pain remained though mild and intermittent. She still had pain and dysfunction of the left knee. Dr Tymms gave her some Cortisone injections into the knee.

21. In November 1990 Dr Keiller, who had seen her in September 1988, July 1989 and April 1990 found slight tenderness at the left knee, her neck was not tender, and showed a full range of pain free movement, and the site of the ulnar fracture was pain free. She had, in his view, made a full recovery, with minor nuisance value symptoms only remaining.

22. Before the accident she had been fit, and fond of vigorous exercise such as jogging, aerobics and skiing. These she was unable to carry on over the period until 1990. I agree with Dr Keiller's opinion that her present symptoms sometimes interfere with her sense of well being and comfort, but that she is fit for all normal activities.

23. For her pain and suffering I award the sum of $35,000.00. Since no significant part of that sum relates to the future I award interest on the whole of it at 4%, amounting to $3,740.00.

24. The out-of-pocket expenses to date amount to $9,514.19. In the light of the view I take of her medical condition and the pattern of treatment disclosed by the leave records since June 1990, I am not satisfied that anything other than a nominal sum should be awarded for future out-of-pocket expenses or time off work for treatment and I award $1,000.00 on that account.

25. During her incapacity for work she received incapacity payments from Comcare. The result achieved by taking the gross total on the one hand, or the net figure plus a Fox v Wood component on the other, appears from the compensation records to be the same. I am not confident that I can reconcile the figures in the cumulative schedule which is part of exhibit 3 with the letter from Comcare dated 28 February 1991 which purports to summarise them, but counsel did not address on this element of the case, and it seemed to me to be accepted that the sum of $16,458.04 was the correct amount to allow for past economic loss.

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

Pain and suffering $35,000.00
Interest $ 3,740.00
out-of-pocket expenses to date $ 9,514.19
Future out-of-pocket expenses $ 1,000.00
Loss of income $16,458.04
$65,712.23

I direct the entry of judgment for the plaintiff against the defendant Commonwealth in the sum of $65,712.23.

27. I direct the entry of judgment for the defendant Nominal Defendant in the action by the plaintiff against it, and I order the plaintiff to pay the costs of the Nominal Defendant of and incidental to that action.

28. In the third party proceedings for contribution brought by the Nominal Defendant against the Commonwealth, there is no liability in the Nominal Defendant to the plaintiff to which the Commonwealth can be ordered to contribute. I therefore direct the entry of judgment for the Commonwealth against the Nominal Defendant in those proceedings, and I make no order as to the costs of those proceedings.

29. In the third party proceedings for contribution brought by the Commonwealth against the Nominal Defendant I direct the entry of judgment for the Nominal Defendant, and I order the Commonwealth to pay the costs of the Nominal Defendant of and incidental to those proceedings.

30. I order the defendant Commonwealth to pay the plaintiff's costs of and incidental to the proceedings, including the costs which the plaintiff has been ordered to pay to the Nominal Defendant.