Ljiljana Aleksic v Richard Davis Hayne and Homecrafts Pty Ltd [1991] ACTSC 54 (5 August 1991)

SUPREME COURT OF THE ACT

LJILJANA ALEKSIC v. RICHARD DAVIS HAYNE and HOMECRAFTS PTY LTD
S.C. No. 282/85
Negligence

COURT

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

CATCHWORDS

Negligence - Damages - Personal Injury - Motor Vehicle Accident - No Issue of Principle

HEARING

CANBERRA
5:8:1991

ORDER

Judgment for the defendant.

The plaintiff to pay the defendant's costs.

DECISION

This is an action for damages for personal injury sustained by the Plaintiff in a motor vehicle accident on 6 July 1983.

2. At about 5.00 pm on that day she was driving her husband's station wagon from her home in Belconnen to the MLC Building in Civic, where she was to begin work as a cleaner.

3. She travelled down Barry Drive to the intersection of that road with Marcus Clarke Street. That is a T intersection with Barry Drive being the head of the T and Marcus Clarke Street the upright.

4. The intersection was controlled by traffic lights. As the plaintiff approached she intended to turn right into Marcus Clarke Street.

5. She said that the lights were green as she approached, so she began to make the right hand turn. While she was still within the intersection a vehicle travelling in the opposite direction in Barry Drive collided with her car.

6. She was wearing a seat belt. The collision was violent. She was thrown about and, although restrained by the seat belt, struck her face on the steering wheel. She did not lose consciousness.

7. She sat in the car for a time, crying and in shock. She went to speak to the other driver, but he did not wish to engage in conversation.

8. The police were called and took some particulars. The plaintiff's husband drove her home. She was not able to go to work. She was sore and bruised. She had a hot bath, but was unable to sleep. She felt sore all over, but particularly in the neck and lower back.

9. The next day she attended the Casualty department at Royal Canberra Hospital. The hospital records reveal that she had 4 or 5 large bruises over the limbs, and tenderness over the lower spine. She was complaining of multiple aches and pains and blurred vision. There was tenderness to the left intraorbital region. The hospital medical officer prescribed Digesic, bed rest and three days off work.

10. She continued to suffer pain in the neck and back, and severe headaches. She consulted Dr Smith, her general practitioner. He notes on 20 July 1983 that she had been complaining of paraesthesia in the lateral aspect of the left lower leg, with episodic shooting pain in the region, and that she now also complained of paraesthesia and hyperaesthesia in her left foot and large toe. He thought the symptoms and signs were consistent with a left lateral minimal disc prolapse, with pressure on the left L5 nerve root. He referred her to Dr Stubbs for a specialist Orthopaedic opinion.

11. Lumbo sacral x-rays and a CAT scan showed no abnormality. In April 1984 Dr Stubbs reported that he had examined the plaintiff on 27 March 1984, when her physical examination was entirely normal. He did not think further treatment or investigation was justified, and that she was fit to return to cleaning work if she so wished.

12. Even before the accident her marriage was in difficulties. Her husband's reaction when called to the scene of the collision was anger, which he expressed by telling her she should have killed herself.

13. By 16 August 1983 the relationship had deteriorated to the stage where she took their two children and left home for a women's refuge. After about six weeks she was allocated a flat at Melba. In her evidence she said that during the 17 months that she lived at Melba she began to do some casual cleaning work at the 19th Hole Motel in Narrabundah. She said that she was only working once a month or once a week, as she was called on, and that she was definitely not capable of doing full time cleaning work.

14. Dr Smith records that he saw her regarding this injury on 20 July 1983, 15 August 1983, 31 August 1983, 3 September 1984, 30 April 1985 and 21 June 1985.

15. In March 1985 she saw Dr Stevenson about some other matter, but told him that she had a back problem for which she was being treated at the physiotherapy department at Woden Valley Hospital. He saw her again in May 1985 and September 1985, still complaining of back pain. In March 1986 he was asked for a referral to Dr Cassar and to Dr Danta. Her complaints about pain were peripheral to the consultations that he was having with her, so that he was not able to comment with any confidence about her prognosis.

16. In March 1986, Dr Cassar saw her for the defendant. He thought her disabilities were relatively minor, bearable, and not sufficient to justify her complaints of depression. All her movements were full and pain free. She did however, have some tenderness over some lumbar facet joints with accompanying muscle spasm. He diagnosed fibrositis and recurrent lumbago. He prescribed Tofranil, hot packs and periodic anti-inflammatory agents when required. He thought she should be encouraged to return to a normal lifestyle, including domestic and occasional cleaning work.

17. Her solicitors referred her to Dr Danta, Neurologist, who saw her on 21 May 1986. Her complaints were backache, pain and sensory symptoms in the left leg, and pain in the neck and headache. She told Dr Danta that she had not returned to work, and that she had had physiotherapy throughout, which gave her temporary relief from her pain. There were no observable clinical signs of injury. There was complaint of diffuse tenderness over the lumbar region. He diagnosed a soft tissue injury, which had become complicated by depression. He thought the sensory symptoms in the left leg were probably functional. He referred her to Dr Corry for rehabilitation counselling.

18. Dr Corry saw her on 19 August 1986. He agreed with Dr Danta that she suffered from primary soft tissue injury to the spine and that the sensory changes of which she complained in her lower limbs were probably psychosomatic in origin. Her severe anxiety was reflected in her fear of motor vehicle travel and fear of increasing disability, which he thought had been largely precipitated by the accident. He commenced her on a rehabilitation program.

19. Dr Smith reviewed her on 15 December 1986, at the request of her solicitors. He had not seen her since June 1985. He though she had symptoms and signs of a progressive S1 nerve root irritation probably caused by an intervertebral disc weakness in all probability caused by the accident. He advised physiotherapy and further investigation by CAT and MRI scan. There is no evidence that he saw her again, or that either of those investigations were carried out.

20. So far as the evidence goes, the next time she saw a doctor was in March 1988, when Dr Cassar re-examined her for the defendant. His examination, both clinical and thermographic, was against any claim of disability. In particular there was no evidence of lumbosacral disc or sciatic disability, and only normal degenerative spondylitis. He was still of the view that he had formed in 1986, that she had suffered from the accident only minimal, reversible, partial disability and no permanent incapacity.

21. In August 1988 her solicitors sent her to Dr Stevenson for review. He pointed out that she had not been to see him for over 12 months since she had walked out when he refused to allow her to continually attempt to manipulate treatment regimes for several illnesses. She had not needed any medication over the previous six months. His last prescription for Voltaren had been in September 1985. His diagnosis was of soft tissue injury and chronic pain syndrome, some of which was functional.

22. Dr Corry's opinion in October 1988 was that she had symptoms arising from soft tissue rather than bony structure. She appeared to be coping poorly with her moderate continuing symptoms.

23. In July 1989 her solicitors asked for a report from Dr Cairns, Orthopaedic surgeon. She told him that because of persistent symptoms she had been unable to resume gainful employment as a cleaner. She claimed to be unable to clean the carpets, vacuum or make beds, and to be restricted in the performance of leisure activities including tapestry and knitting.

24. As the result of his examination he formed the view that in the accident she sustained minor transient soft tissue injuries to the cervical and lumbar areas. She could be reasonably expected to have recovered from such injuries within about 3 months. Any ongoing disability in his view was predominantly psychogenic. There was no objective evidence of disability which would preclude her from returning to work.

25. Dr Danta saw her in October 1990. Her complaints were that she was getting worse. On examination, the neck movements were full and there was no neck tenderness. There were no abnormalities in the arms. Straight leg raising was normal on the right and limited to 50 degrees on the left. Yet bending her back was almost normal and she was only 7 centimetres from touching the floor. He thought this out of proportion to the limitation of straight leg raising. He thought that because of the chronocity of her symptoms, she was unlikely to return to work and would continue with her symptoms indefinitely.

26. Lastly, Dr Cassar re-examined her in April 1991. She told him she last worked prior to the accident. On examination, the neck and upper spine were normal. Range of movement of the lumbar spine was normal except for minor restriction of left lower lumbar face joints. He found no evidence of sciatic stretch signs or neurological impairment. This contrasts with the impairment of all modalities of sensation in the left leg which she purported to demonstrate to Dr Danta in October 1990. None of the doctors gave oral evidence or were cross examined.

27. In contrast to the picture that she was painting to the doctors about her inability to work, a letter is in evidence from Challenge Property Services Pty Limited certifying that she began employment with that company on 5 November 1982 in the capacity of permanent part time day cleaner working 25 hours per week. The company's records show that the only time absent from work was two days sick leave on 28 and 29 July 1983. She resigned from employment with the company on 11 July 1984, a year after the accident.

28. In her evidence in chief, she stated that when the accident happened she was on her way to a night time cleaning job, standing in for a friend at her mother's workplace who was overseas. I understood that to be a temporary addition to her daytime cleaning job.

29. She claimed that she was unable to return to cleaning work because of her pain. Her pain got worse while she was at the refuge. While she was at the Melba flats she tried some part time casual work at the 19th Hole Motel. She was asked, "Did you think that you could do any more cleaning work than the amount that you actually did at the 19th Hole Motel?", to which she answered, "No", and she claimed to have had difficulty even doing that.

30. After she moved to Richardson in 1985 she tried selling Avon products, and helped out occasionally with light housekeeping work at the Private Bin restaurant when visiting friends there, from which she received a small amount of money. Later, after Dr Corry's rehabilitation course, she tried some more work at the Private Bin. She was formally employed there from 5 July 1986 to 8 August 1986. She has since tried to sell Amway products.

31. The plaintiff was cross examined about her employment at the 19th Hole Motel and at the Private Bin, but not about her work with Challenge Property Services Pty Ltd.

32. Nevertheless, the stark contrast remains between her evidence and what she told the doctors on one hand, and that record of her working 25 hours a week as a cleaner, with only 2 days off between the date of the accident and 11 July 1984.

33. But even without that document, I find that there are so many inconsistencies in the histories that she gave to the various doctors and such an absence of objective evidence of any disability, that I am not persuaded that it was the accident that prevented her from returning to work.

34. I also note the long periods of time over which she did not seek treatment, her attempts to manipulate Dr Stevenson's treatment, her conflicting statements about receiving physiotherapy and the absence of any claim for the cost of it in the particulars or in evidence, and the absence of any objective signs noted by Dr Cassar in March 1986 and Dr Stubbs in March 1984.

35. If it is true that so much of her condition as is functional is genuine, and I doubt even that, I am not persuaded that it was the accident that brought about that functional overlay. It may have been the difficulties that she was having with her husband that led her to perceive herself to be worse than she was clinically. But there is not sufficient basis in the evidence to persuade me that it was the accident that was the cause of her condition. In my view, the most accurate description of the effect of the accident upon her, is that of Dr Cairns, and, so far as he says that in his view her ongoing disability is predominantly psychogenic, I am not persuaded that the psychogenic aspect is causally related to the accident.

36. In the result, I would award her, for such pain and suffering as did result from the accident, the sum of $8,000, all of which relates to the past. Interest on that sum would amount to $2,600. The out-of-pocket expenses are agreed at $1,539.60. The letter from Challenge Property Services Pty Limited, exhibit "D", was tendered by the plaintiff. It shows her weekly rate of pay at 6 July 1983 was $137.50 net. But it also shows that she did not lose any time off work with that company as the result of the accident. I am not persuaded that she lost any more than perhaps one week's work at the temporary job that she had cleaning at the MLC building in the evenings. I would allow $150 for loss of wages.

37. The total award would therefore be made up as follows
Pain and Suffering $8,000.00

Interest $2,600.00
out-of-pocket expenses $1,539.60
Loss of income $ 150.00
Total $12,289.60

If she is entitled to compensation therefore, it would be in the sum of $12,289.60.

38. The defendant's version of the accident is simple. He was driving west in Barry Drive from the direction of Northbourne Avenue. As he crossed Northbourne Avenue he could see that the lights at the next intersection, at Marcus Clark Street, were red facing him. As he proceeded towards the intersection they changed to green. There was no vehicle ahead of him travelling West. He was in the lane closest to the centre of the road. As he entered the intersection, the plaintiff made a right hand turn from the opposite direction into his path, and the right front of his car collided with the centre front of the plaintiff's car. He had no opportunity to avoid the collision.

39. The plaintiff's version was that as she approached the intersection she saw, at the light facing her, both a green roundel and a green arrow for a right hand turn. Both the expert evidence called by the defendant and common sense convince me that if she had a green arrow facing her, the defendant would have had a red light facing him.

40. The plaintiff said that she was approaching the intersection at about 45 kilometres an hour. She was about 10 metres from the intersection when she saw the green arrow. She slowed down and began to make the turn, and the collision occurred.

41. At the approach to the intersection there are 4 lanes for traffic travelling east, and 2 lanes for traffic travelling west in Barry Drive. She said that as she got to the intersection she saw a small car also making a right hand turn from the lane closest to the median strip. She was making the turn from the next lane, that is, the second lane north of the median strip. She also said that there was a station wagon standing at the lights, facing west, in the lane nearest the median strip, waiting for her to pass across in front of it, and obscuring her vision of the defendant's vehicle approaching. She claimed that the defendant was in the lane further from the median strip.

42. There were no witnesses to the accident who gave evidence, and no evidence from the police officer who investigated it.

43. The defendant denied that either of those other two vehicles existed, so far as he was aware, and he was adamant that he was in the lane closer to the centre. It was raining at the time of the accident. The plaintiff said that the small car in front of her which also turned right was stationary when she first saw it, and that it began to turn right as she approached. Under cross examination she agreed that the first view she had of the lights was that of a green light, and that the green arrow came on as she approached, so that she was able to make the turn without stopping.

44. That evidence is consistent with the other part of her evidence, that the other car turning right was stopped, but moved off just as she got towards the lights.

45. An officer of the Traffic and Roads Branch of the ACT Administration gave evidence of what is technically referred to as the "personality" of the lights at the intersection. His evidence was that the sequence never went from green roundel to green roundel plus green arrow for traffic travelling east in Barry Drive.

46. There was nothing in the cross examination of the defendant to cast doubt upon his evidence.

47. I think that the criticisms I have made of the plaintiff's evidence on damages also reflect on her credit so far as the accident is concerned.

48. A significant part of her evidence is contradicted by that of the independent officer from the Traffic and Roads Branch. There is no inconsistency between the defendant's version and that officer's evidence.

49. I am persuaded that the defendant's version of the accident is more probably the correct one.

50. In those circumstances, there was no failure on his part to take reasonable care for the safety of the plaintiff.

51. There must therefore be judgment for the defendant.

52. I order the plaintiff to pay the defendant's costs.