Debbie Van Den Dungen v Merle Olive Hammond [1991] ACTSC 56 (7 August 1991)

SUPREME COURT OF THE ACT

DEBBIE VAN DEN DUNGEN v. MERLE OLIVE HAMMOND
S.C. No. 121/88
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
7:8:1991

ORDER

I direct the entry of judgment for the defendant.

I order 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 19 December 1985.

2. The plaintiff was then a 22 year old drafting officer with Telecom. At about 4 pm on that Thursday, she was driving her Datsun sedan in Wentworth Avenue, near the railway station, travelling towards Queanbeyan. She was wearing a seat belt. Her car was in the left hand lane. Ahead of her was a Cortina sedan. Behind her were a Ford Falcon and a Mitsubishi sedan.

3. Having stopped at the lights at the previous intersection, that procession of vehicles was travelling at a moderate speed past the intersection of Burke Crescent.

4. Shortly thereafter the Cortina stopped. There were then a series of collisions. The plaintiff's evidence was that the first was when the Ford Falcon collided with the back of her car, forcing her car into the back of the Cortina ahead, and then a second collision from behind, forcing her car again into the rear of the Cortina.

5. She was flung forwards and back. Her head contacted some part of her car. Her shins were forced against the dash. Her seat was jolted from its mountings.

6. She was shocked. When she got out of her car she was shaking and nauseated. The police attended to take particulars and an ambulance was called for some other persons involved. Her car was towed away, and was written off. She was given a lift home to Queanbeyan.

7. Later that evening she attended at Queanbeyan hospital, where it was noted that she had injury to her head, back and both lower legs. No x-rays were taken. She was given an anti-tetanus injection in the buttock, and advised to rest at home for three days.

8. The next day she consulted Dr de Sailly, a general practitioner. His examination revealed bruising of both shins, a haematoma over her occiput, pain and stiffness in the right triceps muscle, stiffness and tenderness in the neck muscles, tenderness over the C5/C6 joint of her cervical spine, and tenderness over the lumbar sacral joint. She was also complaining of vague headaches. He prescribed Voltaren tablets, and gave her a certificate for sick leave on 23 and 24 December.

9. She then attended a chiropractor on three occasions during the next five months or so. On 6 May 1986 she saw Dr de Sailly again, complaining of headaches. He prescribed Sandomigran. That did not help her, and she saw him again about her headaches on 16 June 1986. He prescribed Visken tablets. Then on 27 February 1987 she returned, still complaining of headache. He prescribed Deseril. She did not return again to him for treatment for the headaches. In May 1987 she saw him in connection with an infected eczema, but in his view that condition was not related to the accident.

10. By June 1986 her back and neck had substantially settled, as had her miscellaneous bruises and lacerations. She claims that the headaches lasted, on and off, for about four years.

11. She claimed in evidence that she had not suffered from the skin rash before the accident. She first noticed it in the first couple of months of 1986. It persisted, and in August 1987 she consulted Dr Shroot about it. His diagnosis is that it was a stress related skin condition. He attributed the stress to the accident, and therefore, on balance, was inclined to connect the rash to the accident. Over the next year or so he tried a series of different treatments for it.

12. In December 1988 her solicitors referred her to Dr Lobell, a dermatologist. He commented,
"One of the precipitating factors for dermatitis is stress but

dermatitis is usually very responsive to standard therapy
especially in a person who has never suffered from this
condition previously. Therefore, although dermatitis could well
have been precipitated by the stress of being involved in a
motor vehicle accident, I do hold some reservations about this
relationship because of its total failure to respond to
appropriate therapy."

13. Neither of these two doctors was asked to investigate the stress that she was undergoing at the relevant time in connection with the break up of her marriage, about which she was asked questions during cross examination.

14. The accident would have been upsetting. But I note that some months went by before the rash began to trouble her. In the light of the other stress that she was undergoing I am not persuaded that the skin problem was causally related to the accident.

15. In summary, she suffered the trauma of the collision, which resulted in relatively mild whiplash to the neck and back soft tissues, and headaches which persisted for some years. She became nervous about travelling in cars, a condition which was sufficiently serious for her to seek therapy from Mr Petroni, psychologist.

16. After an initial consultation in April 1988, she did not attend for treatment. She returned to see him in August 1990, and had about eight sessions of therapy.

17. I note that he also attributes the skin rash to the accident, but such a conclusion is not really within the area of his expertise.

18. She had started to drive again about a year after the accident.

19. She has driven constantly since that time. Mr Petroni's therapy has had an effect. I am not persuaded that she will suffer from nervousness in traffic to any significant extent in the future.

20. For her pain and suffering, I would award the sum of $12,000. Interest on that sum amounts to $2,700. She lost $121 in sick leave. The cost of Mr Petronis' therapy was $450. The chiropractic treatment cost $98. There is no evidence of any other out-of-pocket expenses.

21. The total award would therefore be made up as follows:

Pain and Suffering $12,000.00
Interest $ 2,700.00
Sick leave $ 121.00
Mr Petroni $ 450.00
Chiropractic $ 98.00
Total $15,369.00

22. If the plaintiff was entitled to judgment, therefore, it would be in the sum of $15,369.

23. In her evidence the plaintiff said that her vehicle stopped before it collided with the Cortina in front of her. She stopped only inches away from it, but it was the car from behind which hit her almost immediately and forced her into the Cortina. When asked "How far away from the Cortina were you when you observed that it was stopped?" she replied, "A metre, maybe two."

24. Her version in evidence is supported to some extent by that of the passenger in the defendant's car, Mrs Hoverdene. In giving evidence, it must be said, she was quite vague about the sequence of events. But her recollection was that there was an impact between the defendant's car and the plaintiff's car in front, and also an impact between the defendant's car and the car behind it, and when asked "Which happened first?", she replied, "I think the car in front."

25. In the statement that she gave to the police on the day of the accident, she said,

"When we were near the railway station the cars in front stopped
quickly. Merle tried to stop but her car hit the car in front.
I then felt a jolt from another car hitting the back of Merle's car.

26. That statement, of course, was made when the events were fresh in her memory.

27. The driver of the Ford Cortina in front of the Plaintiff, Mrs Fitzsimmons, saw things differently. She described bringing her vehicle to a stop because a car some four or five cars ahead of her in the line of traffic had stopped. She then heard screeching of brakes behind her. She looked in the rear vision mirror and saw the plaintiff's car approaching. It collided with the rear of her vehicle, and a short time later it collided with her again, as the vehicle behind it forced it forwards again. Her impression was that the first impact was not as heavy as the second. The statement that she made to the police was perfectly consistent with her evidence.

28. The defendant stated that she saw the plaintiff's brake lights come on, and applied her brakes. She stopped without colliding with the plaintiff. Then the vehicle behind her collided with the rear of her vehicle, forcing it into the rear of the plaintiff. She was thrown violently forward and fractured her sternum. She was taken by ambulance to the hospital. She disagreed with her passenger's evidence that she had first collided with the plaintiff.

29. There was no evidence from the driver of the car which ran into the back of the defendant.

30. It is essential, to my mind, to concentrate first on the question of the defendant's negligence. If that is proven, then difficulties may arise about whether the plaintiff had first collided with Mrs Fitzsimmons, and if so how much of her injury was due to that first impact. But for the purposes of this case the primary question is whether the defendant failed to stop before colliding with the plaintiff or whether she was driven into the plaintiff by the fourth vehicle in the incident.

31. The plaintiff's evidence attempts to address this problem by describing two impacts from the rear, the first of which would be from the defendant's car and the second transmitted shock from the fourth car.

32. Mrs Hoverdene's evidence supports this hypothesis. Mrs Fitzsimmons, in the first car in line, is not able to solve this particular dilemma, as she could not see whether the second shock was the result of the defendant's running into the back of the plaintiff or being forced into it by the fourth car.

33. On this primary issue the conflict therefore is between the plaintiff's and Mrs Hoverdene's evidence on the one hand, and the defendant's on the other.

34. There was no internal inconsistency in the defendant's evidence and it was not materially weakened by cross examination. There is no other independent evidence which directly contradicts it. The strength of the plaintiff's evidence therefore is crucial. The statement that she made to the police is significant, not only in what it describes, but in its effect upon the reliability of her recollection when she was giving her evidence.

35. In the record of the conversation that she had with the police officer at the scene, which she freely acknowledged, the following questions and answers appear.

"Q. How did the collision occur?
A. The car in front of me stopped and I put on my brakes but
I didn't do it soon enough"
"Q. How far from the front of your vehicle was the Cortina
sedan when you realised it had stopped?
A. About 2 or 3 feet maybe."
"Q. Did your vehicle also get hit from behind after you
collided with the Cortina Sedan?
A. Yes."
"Q. Did you try and avoid colliding with the Cortina and in
what way?
A. I braked as soon as I could."

36. That contemporaneous account given by the plaintiff is not really consistent with her evidence. It is however, to much the same effect as that given by Mrs Fitzsimmons, who has no interest in the outcome of this case. In those circumstances, I am persuaded that the version given by the defendant is more trustworthy than those given by the plaintiff and Mrs Hoverdene.

37. Once that version is accepted it is clear that the defendant was not guilty of any negligence. The driver of the fourth vehicle may have been substantially to blame for the plaintiff's injuries, but not the defendant.

38. There must therefore be judgment for the defendant.

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