Richard Murray v Anita Brake [1991] ACTSC 62 (15 August 1991)

SUPREME COURT OF THE ACT

RICHARD MURRAY v. ANITA BRAKE
S.C. No. 170/89
Negligence

COURT

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

CATCHWORDS

Negligence - Damages - Personal Injury - Motor Vehicle Accident - Contributory Negligence - Assessment - Fractured Pelvis - No Permanent Disability - No Issue of Principle.

HEARING

CANBERRA
15:8:1991

ORDER

There be entry of judgment for the plaintiff in the sum of $22,481.24.

DECISION

This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 20 November 1987.

2. The plaintiff was a front seat passenger in a Rover 3500 V8 sedan which left the road and overturned at the intersection of Ginninderra Drive with Ellenborough Street and Mouat Street Lyneham.

3. He was not wearing a seat belt and was thrown from the vehicle, the left hand doors of which were torn off at some time after the vehicle had left the road.

4. It is not clear whether he lost consciousness for any length of time. He was taken by ambulance to Royal Canberra Hospital. By the time of his arrival he was conscious, and complaining of pain over the cervical spine, pelvis and left elbow. On examination he was amnesic for the accident but oriented to time, person and place. The hospital report continues,
"There was tenderness over the left sacro-iliac joint, symphysis

and pelvis. Left leg movement was not possible due to intense
pain in the thigh and hip. There was abdominal tenderness and
guarding though bowel sounds were present and normal. There was
a graze to the left temple and bruising to the right upper
thigh. Right leg weakness was present but it was felt that this
was old.
Urinalysis revealed macroscopic haematuria.
X-ray of the pelvis revealed disruption of the left sacro-iliac
joint and symphysis. The film was poor so further x-rays were
advised.
Cervical spine x-ray revealed no fracture.
Chest x-ray was normal.
Mr Murray was commenced on intravenous fluids, analgesia, and
admitted to the ward. An indwelling catheter was inserted and
the patient was placed on bed rest until further pelvic x-rays
were performed. Chest physiotherapy was attended to daily. The
following day an intravenous pyelogram and pelvic x-ray were
performed which revealed satisfactory kidney excretion. The
kidney's collecting systems and ureters appeared normal. The
bladder however appeared reduced in size and displaced,
suggesting swelling of the pelvic tissues possibly with
haematoma formation. There appeared to be a slightly displaced
fracture involving the right ala of the sacrum.
Mr Murray developed a productive cough with green sputum and
coarse widespread rhonchi. This was consistent with chronic
cigarette induced bronchitis. Physiotherapy was continued and
antibiotics were administered.
The haematuria subsided and the catheter was removed on 23
November 1987. However following the removal Mr Murray was
unable to pass urine so he was catheterised again for another day.
Gentle mobilisation commenced on 25 November 1987, initially
with a walking frame and then with crutches.
Mr Murray was discharged on 1 December 1987 and referred for
follow up with Dr Connors."

5. He saw his general practitioner, Dr Doherty, on 3 December 1987. He referred him for physiotherapy, where he received ultrasound and interferential treatment over four visits during December.

6. He had previously sustained a fracture in his right leg, in an accident in 1982. As a result he had a slight paralysis of the right foot. During his recovery from the subject accident he suffered a lot of pain in the right foot for two or three months.

7. The large haematoma over his hip went down over a period of two months or so, though it was six months before it ceased to trouble him. For about two or three months he had to use crutches to get about. The other lacerations and bruises healed normally. The plaintiff was able to return to work on 24 February 1988.

8. In the accident one of the other passengers in the car, Alan Rosewarne, a friend of the plaintiff, had been killed. The defendant was charged with culpable driving. At the committal proceedings and the defendant's trial, the plaintiff was subjected to cross examination about an allegation made by the defendant that he had caused the accident by forcing her foot down on the accelerator with his foot. He became upset and depressed.

9. Dr Doherty notes that the plaintiff consulted him about depression in May 1988 and November 1988, and he referred him to a psychologist, Mr A. Patroni, in December 1988. Mr Patroni saw him for therapy four times during early 1989. The treatment involved counselling, relaxation techniques, and hypnosis. The plaintiff discontinued the therapy.

10. Physically, he had practically recovered about a year after the accident. Dr Connors saw him in May 1991, and apart from a healed laceration on the left elbow, could find no remaining signs relating to the subject accident. He did note, however, that the plaintiff was left with continuing bouts of depression and anger.

11. His solicitors referred him for assessment to a clinical psychologist, Mr Petroni, in March 1991. Mr Petroni's opinion is that the trauma of the accident left a significant psychological scar on the plaintiff's personality, clinically identifiable as a post traumatic stress disorder. He thought that psychotherapy was called for, and that it would be effective. The plaintiff did not give evidence that he intended to seek therapy.

12. The defendant's solicitors had the plaintiff examined by a psychiatrist, Dr J. Sydney Smith. Dr Smith elicited the information that the plaintiff had been suffering from depression during the year before the accident, and had been consulting Professor Henderson as recently as 2 October 1987. Nevertheless, he had, overall, coped with the accident and its consequences without any emotional deterioration. Dr Smith thought he had no residual symptoms from the accident.

13. None of the doctors or medical experts gave evidence or were cross examined.

14. Having seen and heard the plaintiff give evidence, I am inclined to agree with Dr Smith, at least so far as the present is concerned. I think that the emotional aftermath of the accident, the death of his friend and the accusations about his having caused the accident were certainly most traumatic and distressing, and sufficiently connected with the accident to sound in damages, but I do not think that he is now suffering any emotional or psychological disorder.

15. For his pain and suffering I would award the sum of $32,000, no significant part of which relates to the future. Interest on that sum at 4% amounts to $4,800.00. The out-of-pocket expenses amount to $4,630.38. The loss of wages was not contested at $3,532.10.

16. An award of full compensation for the plaintiff would therefore be made up as follows:

Pain and Suffering $32,000.00
Interest $ 4,800.00
out-of-pocket expenses $ 4,630.38
Loss of Wages $ 3,532.10
Total $44,962.48

17. In November 1987 the plaintiff was aged 22, single, and employed in the public service. Together with two fellow workers, Alan Rosewarne and John de Salis, he went to the Labour Club at Belconnen to see a show put on by a hypnotist. He met other friends there. During the evening, both during and after the show, he and his friends had a number of drinks. His best recollection was that in the course of the evening he consumed approximately six schooners of full strength beer and the same number of six ounce glasses of Bourbon and Coke.

18. The three young men then decided to go to the plaintiff's home, having bought a dozen cans of beer to drink there.

19. The defendant had also been at the show. She worked in the same Department and knew the plaintiff and his friends. She offered to drive them home. She had consumed alcohol herself during the evening, but it was not suggested that she was affected by it to the extent that the plaintiff knew, or ought to have known, that there was any risk involved in travelling as a passenger in a car that she was driving.

20. The plaintiff sat in the front passenger's seat. De Salis sat behind him and Rosewarne sat behind the driver.

21. From the club to the scene of the accident is between 5 and 6 kilometres. They travelled first along Aikman Drive, to its intersection with Ginninderra Drive, into which they turned. About a kilometre further along they passed the intersection of Heydon Drive and Baldwin Drive with Ginninderra Drive. Two kilometres further on is the intersection with Tucker Street, which leads to the Australian Institute of Sport. About 500 metres from that intersection there is the crest of a slight hill, from which Ginninderra Drive slopes down for about a kilometre to the scene of the accident.

22. The plaintiff did not attempt to deny that he and his friends were well affected by alcohol. He did not fasten his seat belt. As the journey began, the passengers began to make derogatory remarks about the capabilities of the plaintiff's motor vehicle. They boasted that the plaintiff's Ford or Rosewarne's Holden could outperform it. They taunted the defendant with its alleged lack of acceleration.

23. Apart from his state of intoxication and the subject matter of that conversation, there is little that the plaintiff could remember about the journey. He could recall turning out of Aikman Drive onto Ginninderra Drive. He claimed to remember the roar of the engine and the lights of the barrier at the scene of the collision, and then the ambulance and lights.

24. At the intersection Ellenborough Street and Mouat Street are effectively one road, running approximately South South East to North North West, and forming the top of a slightly deformed T with Ginninderra Drive, which runs approximately East West. The normal course for the defendant to have taken would have been to turn right from Ginninderra Drive to travel South South East in Mouat Street.

25. She did not succeed in negotiating the corner. Her car collided first with the guttering on the eastern side of Mouat Street, then with an Armco barrier and traffic sign, overturned at least once, and finished upright on a grassed area, facing west, about 40 metres to the South East of the centre of the intersection. The passenger's side doors had been torn off, and were lying more than 10 metres to the north of the vehicle. The plaintiff and De Salis were lying on the ground some metres away. Rosewarne's legs were in the car and his torso outside, on the ground. Other debris lay scattered around. There were 4 tyre burn marks extending west from the eastern kerb of Mouat Street, of varying lengths, the longest being about 25 metres long.

26. In the absence of any other explanation the inference would be inescapable that the defendant failed to take reasonable care for the safety of the plaintiff in approaching the intersection and attempting to negotiate it at an excessive speed.

27. But the defendant gave evidence of another explanation. She swore that when she got in the car she put her seat belt on, and told her passengers to do the same. They did not do so. They opened some beer cans and began to taunt her for not going faster. As they became boisterous and after turning into Ginninderra Drive, she stopped to remonstrate with them, after which they were quiet for a while.

28. At the crest of the hill the heckling began again. At about the same point in the journey the plaintiff moved in his seat, placed his right foot over hers, and forced her to depress the accelerator.

29. Till then she had been travelling, she claimed, at or about the speed limit, 80 kilometres per hour. As the car travelled down the hill it increased speed, she said, to somewhere between 100 to 120 kilometres an hour.

30. As she approached the intersection she was not able to brake, because the plaintiff's leg was over the handbrake, which is on top of the tunnel between the driver and the passenger, his foot was on her right foot, and her left leg and foot were tucked behind her right, and held there by his leg. She decided, she claimed, to bounce off the armour rail to attempt to make the bend. The car hit the guard rail, rolled over and came to rest. Passers by assisted her from the car. She attempted to resuscitate Alan Rosewarne, and the ambulance arrived shortly afterwards. The passers by had gone by the time the police or ambulance arrived.

31. The accident was investigated by Constable Knowles. When he arrived the ambulance had already taken Rosewarne away. The plaintiff and De Salis were lying on the ground being attended to. He spoke to the defendant, and asked her what happened. According to his evidence the following conversation took place.

"She said, "Richard had his foot jammed on mine. I couldn't get
my foot off the accelerator." I said, "Richard who?" She said,
"Richard Murray." I said, "Where was Richard sitting in the
car?" She said, "In the front." I said, "Why did he have his
foot on your foot?" She said, "Because he wanted to go faster
and I wouldn't." And a short time after that, Ms Brake was also
conveyed from the scene to the Royal Canberra Hospital by ambulance.

32. Constable Knowles did not perceive on her any signs that she was affected by alcohol. About 3 hours after the accident a sample of her blood was taken, which was later analysed and was found to contain a blood alcohol level of .04 percent by weight to volume. On the evidence it would not be possible for me to find that her capacity to drive was to any significant extent adversely affected by alcohol.

33. The defendant was later charged with culpable driving. There were committal proceedings, at which the plaintiff gave evidence, and then the trial, at which he and the defendant gave evidence. She was acquitted. It was not suggested that any of the witnesses in this case gave evidence which differed significantly from accounts that they gave on any previous occasion.

34. The plaintiff in evidence denied that he put his foot over the defendant's right foot.

35. In a recorded interview, Constable Knowles put to him the allegation, "Anita Brake stated to me at the scene of the collision, 'Richard had his foot jammed on mine and I couldn't get my foot off the accelerator'. Do you have anything to say to this?", to which he replied, "I don't remember doing that any stage." He conceded in cross examination that the reason he could not recollect having done it was because he was so drunk, and his memory of what occurred was very substantially affected by what he had drunk.

36. Mr De Salis gave evidence. He agreed with the defendant that the men had been heckling the defendant to drive faster, saying that her car was no good, and that after turning into Ginninderra Drive she stopped and told them to keep quiet or get out. The car proceeded on, and they were quiet for a while. After the intersection with Heydon Drive (about 3.5 kilometres from the intersection) the heckling started again. Before coming to the crest of the hill, the car speeded up. It reached a speed of 100 to 120 kilometres an hour at the crest, and then proceeded down the hill towards the intersection at that speed. He did not see anything of the plaintiff putting his leg across the console and placing his right foot over the defendant's right foot. He claimed that had he done so he would have seen it.

37. During the hearing there was a demonstration by Constable Knowles, who is about the same size as the plaintiff, and the defendant, seated in the front of a car of the same make and model. Photographs of another similar demonstration using two police officers is Exhibit 2.

38. The manoeuvre described by the defendant is possible, but awkward.

39. On the basis of the oral testimony the defendant's case is a strong one.

40. The defendant gave clear, consistent evidence. Her evidence was not shaken in cross examination. It was consistent with what she told Constable Knowles within a very short time after the incident, and there was no suggestion of any inconsistency with the evidence that she later gave at her trial, and upon which she would have been cross examined.

41. The action of the plaintiff which she described, though awkward, was clearly possible. He and his companions were clearly in a state where he was capable of behaviour he would not indulge in if sober. He was not in a condition to appreciate the danger of what he is said to have been doing. His denials may be discounted because of his intoxication and retrograde amnesia. His lack of recollection could be affected, not only by his physical condition, but also by the subconscious suppression of memory which Dr Smith suggested as a possibility.

42. The observations of Mr De Salis are not particularly trustworthy in the light of his state of intoxication and the visibility in the vehicle.

43. There are two parts of the evidence that are urged to weigh the probabilities in favour of the plaintiff.

44. The first is the evidence of Mr Karamaroudis, a friend of the plaintiff, who had also been at the Labour Club that evening, though not in the company of the plaintiff and his fellow passengers.

45. Later that evening he was refused entry to another establishment because of the standard of his attire, and decided to walk home, along a route which took him along Ginninderra Drive.

46. He gave evidence that about 500 metres west of the intersection with Tucker Street, he observed the defendant's car travelling east. He observed it travelling over a distance of about 500 metres. It then went over the crest of the hill, out of his sight. During the time that the car was in his vision, he estimated that its speed was at least 130 kilometres an hour. He heard the screech of tyres and the sounds of an accident. He ran to the scene. He did not speak to anyone at the scene. He did not give any information about the accident to the police or to anyone else in connection with the prosecution of the defendant.

47. I find that I can not place much reliance on the evidence of Mr Karamaroudis in resolving the issues in this case. I could possibly be persuaded to accept his explanations of his failure to speak out at the time about what he had seen. Many people in the community do not want to "become involved" in circumstances like these.

48. But he claimed to have recognised the car that passed him at night at 130 kilometres an hour as a brown Rover. He explained that feat during cross-examination by claiming that he could recognise it by the street lighting. The defendant's evidence that there was at the time no street lighting at that place was not controverted. She had her lights on high beam and did not see any pedestrians walking along the road.

49. Mr Karamaroudis's evidence does not tally with that of the other witnesses. Mr De Salis said that the car reached a speed of 100 to 120 kilometres an hour at about the crest of the hill, which is some distance past Tucker Street. Neither the plaintiff nor Mr De Salis suggested that the car had started to speed up half a kilometre before reaching Tucker Street. His estimate of speed is not, in the circumstances, particularly reliable.

50. But it also does not really resolve the conflict between the plaintiff and the defendant about what happened after the car went past the crest of the hill. It could have been going faster than the defendant estimated when it passed the spot where Mr Karamaroudis claims to have been, and yet have been accelerated by the plaintiff at a later point.

51. The other matter arises from the expert evidence of Mr Jamison, a traffic engineer with undoubted qualifications in accident investigation.

52. Mr Jamison was provided with a number of relevant statements about the accident, together with the photographs taken by the police, and made an inspection of the scene in July 1990.

53. He agreed that it would be possible for a left front passenger to place his leg over the transmission tunnel and on the driver's right foot. He rightly pointed out the difficulties and improbabilities involved. Nevertheless, if the defendant is believed, those difficulties and improbabilities do not decide the case.

54. The two aspects of his evidence that appear to contradict the defendant's evidence are matters more within his competence.

55. The first is the inferences to be drawn from the tyre marks on the road. In his report he stated,

"It is apparent from the material reviewed and particularly from
the on-scene police photographs, that Ms Brake's Rover vehicle
approached this site too rapidly. The police photographs
indicate skidmarking consistent with that of a vehicle sliding
sideways, possibly under brakes and into the kerb.
It is normal when a vehicle impacts a kerb sideways that it
"trips over". The Rover, having tripped over, crashed through
the steel guard rail and rolled over before coming to rest on
its wheels.
The on-scene police photographs indicate extensive damage to the
vehicle's left side indicating that the vehicle in its attempt
to turn right at the signalised T intersection spun about 90
degrees clockwise before impacting the kerb sideways.
It is probable that the sideways skidding was caused by heavy
braking."

56. In his evidence he pointed out that the crash event involved three major impacts, one with the kerb, one with the steel guard rail, and one of rolling over. In those circumstances any attempt to determine the vehicle's precise speed would be most difficult. Nevertheless, he claimed that it was possible to give a very broad range of speeds, and the damage was more consistent with an impact speed of 100 kilometres an hour than 160 kilometres an hour.

57. He then attempted to calculate the speed of the defendant's vehicle on the basis of her version of what happened.

58. The distance from the crest of the hill to the scene of the collision is about 1000 metres.

59. She said that her foot was pressed down fully on the accelerator just over the brow of the hill. Mr Jamison adopted a conservative figure of 600 metres.

60. The defendant's vehicle was a 1970 Rover 3500 with a V8 engine, in good mechanical condition. He assumed a performance capability for acceleration of half the rate of a police vehicle. It was not suggested to him that the assumption was unreasonable.

61. He also assumed a speed before acceleration of 80 kilometres an hour.

62. Using that information it is, he said, a matter of physics that the vehicle at the bottom of the hill would have been travelling at more than 160 kilometres an hour.

63. That piece of evidence, I must say, accords with my own expectation of what that sort of vehicle would do in those circumstances, though that expectation is not based on anything other than general knowledge.

64. The defendant insisted in cross-examination that the plaintiff exerted considerable pressure on her foot, over a distance of about a kilometre, down a hill she described as quite steep at the top. Yet, if she is to be believed, she only increased speed by 40 kilometres an hour over that distance. That seems to me to be unlikely.

65. Next, the markings on the roadway were, in Mr Jamison's opinion, probably caused by the application of brakes.

66. The defendant insisted that she never got any opportunity to apply the brakes before the impact with the kerb. If that is true, then the only other cause for the tyre marks on the road would be skidding caused by a wrenching of the steering wheel. Mr Jamison conceded that possibility, but said the burn marks depicted in the police photographs were not quite consistent with that hypothesis because they began suddenly. To my inexpert eye, also, the pattern and type of marks left on the road do not point to an attempt to steer around the corner rather than an attempt to brake.

67. In her evidence in chief the defendant was asked what she decided to do when it was clear that she could not brake. She said, "I decided to bounce off the armour rail - I knew there was an armour rail there - to bounce off it and go around the corner."

68. Later she was asked, "What happened then in relation to the guard rail?" She replied, "The left hand corner hit the guard rail and the car slid sideways to the kerb and then collected the guard rail and started to roll."

69. She was not cross-examined about this aspect of her evidence. Yet it is clear that she speaks of two impacts with a guard rail, one before the car hit the kerb and one after.

70. The guard rail that she collided with after the kerb was at right angles to her direction of travel. There was no way that bouncing off it could help her go around the corner. But there was no other guard rail at the intersection for her to bounce off.

71. I am conscious of the fact that she travelled many times the route that she took on that night, and that by approaching the intersection at an excessive speed she was placing her own safety in jeopardy.

72. Nevertheless, in this case, considerations based upon the probabilities of human behaviour, and attempts to distinguish between the credit of various witnesses, are outweighed by deductions from the physical evidence, backed by the expert opinion of Mr Jamison.

73. In my opinion the case made on behalf of the plaintiff is, on the whole of the evidence, the more probable.

74. There will therefore be judgment in his favour.

75. However, it is clear that he contributed to his damage by his own fault in two respects.

76. The first was that, with his companions, he taunted the defendant and urged her to go faster than she otherwise would have done.

77. The second is that he did not wear the seat belt provided. He was thrown out of the vehicle, and his injuries were probably increased on that account.

78. I take into account the responsibility of a driver towards the safety of passengers. She was not affected by alcohol as they were. She did not insist on their wearing their seat belts. She could have withstood their taunts, or stopped and told them to walk as she had threatened to do.

79. In my judgment the plaintiff's damages should be reduced by half on account of his own fault.

80. There will therefore be judgment for the plaintiff for $22,481.24.