Lynette Patricia Mills v April Dahlberg [1991] ACTSC 76 (30 September 1991)

SUPREME COURT OF THE ACT

LYNETTE PATRICIA MILLS v. APRIL DAHLBERG
S.C. No. 314 of 1987
Negligence

COURT

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

CATCHWORDS

Negligence - Contributory Negligence - Damages - Personal Injury - Motor Vehicle Accident - Facial Injuries - Scarring - Cosmetic Deformity - Loss of Amenity - No Issue of Principle.

HEARING

CANBERRA
30:9:1991

ORDER

Judgment be entered for the plaintiff in the sum of $187,848.50.

DECISION

This is a claim for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 19 November 1986.

2. The plaintiff had for many years been engaged in activities connected with fashion, modelling and beauty care. She had for some months been managing the Phase Mode Model Agency for a friend.

3. Through that agency she had met the defendant, a 17 year old school student, who had been modelling for some time. The defendant was temporarily living at the plaintiff's home.

4. The plaintiff owned a Mazda sedan, which the defendant had driven from time to time whilst she had been living with the plaintiff. The plaintiff had also recently purchased another car from her brother, which had broken down the previous night.

5. On the morning of the accident the plaintiff asked the defendant to drive her in the Mazda into town. It had been raining, and water had entered the car, so that the floor was quite wet. The defendant had turned the car around before the plaintiff got in. The plaintiff entered and sat in the front passenger's seat. The defendant drove down the street and made a left hand turn.

6. She then remembered that she had some school text books in the back of the car, and turned around to check where they were.

7. While she was doing so she drove onto the incorrect side of the road. As she looked to the front again, the Mazda collided head on with a vehicle coming in the opposite direction.

8. Although the car was only in second gear, and was not travelling fast, the impact was a violent one.

9. The plaintiff was thrown forward, and her head hit the windscreen. Her face was badly lacerated.

10. It was not contested that the defendant failed to take proper care in her driving. There will therefore be judgment for the plaintiff.

11. The first issue that was hotly contested, however, is whether the plaintiff failed to take due care for her own safety by not wearing a seat belt, thereby contributing largely to the facial injuries that she received when her head fractured the windscreen.

12. The plaintiff's evidence is that she fastened her seat belt when she got into the car. As the car drove off she was reading some papers in her lap. She could hear the engine revving, and leant forward to adjust the choke, which was on the dashboard and to her right. As she did so she looked up and saw the other car. She put her arms out instinctively, to protect the driver. When the collision occurred her face hit the windscreen.

13. The defendant's evidence was that the seat belt fitted to the passenger's seat was not of the modern retractable type, but one of fixed length, which was adjusted by fixing the length at the buckle.

14. She had not put her own seat belt on, and she stated that the plaintiff did not do so either.

15. If the seat belt was of the type described by the defendant the movements described by the plaintiff would be unlikely. They would, however, be quite consistent with the wearing of an inertia reel seat belt.

16. The plaintiff's son and daughter both gave evidence that, although there were fixed belts in the rear of the car, the front ones were of the inertia reel type, the inertia mechanism being in a small box low down behind the front seat. They both gave their evidence frankly and carefully, with artless and unrehearsed detail, as it appeared to me, and I accept that there was an inertia reel belt fitted to the passenger's seat.

17. The defendant confirmed also that immediately before the impact, the plaintiff was leaning forward to adjust the choke, a movement which would bring her face closer to the windscreen, and reduce the effectiveness of the mechanism for stopping her from hitting the screen with her head.

18. Mr Shoard, an ambulance officer who attended the plaintiff, had no independent recollection of the accident. However, the ambulance case slip that he filled in at the time contained a statement that the plaintiff had been wearing a seat belt. He could not remember whether he obtained that knowledge by observation, or from what the plaintiff had told him. In either case, there is nothing in his evidence that tends to corroborate the defendant.

19. Whether the seat runners were damaged in the collision did not seem to me to have any relevance to the question of the wearing of a seat belt.

20. The notes made at the hospital on admission showed that the plaintiff had bruising to the left side of the chest, and she was x-rayed for a chest wall injury. That is consistent with her having worn a seat belt, even though the slack was not taken up soon enough to protect her face.

21. Despite the circumstances of the bag and papers in her hands, and the water on the floor of the car, I am not persuaded that the plaintiff failed to put the seat belt on. I accept that the defendant honestly has no recollection of her doing so, but on the whole of the evidence I think it more probable that in fact she did.

22. There will therefore not be any reduction in the plaintiff's damages on account of contributory negligence.

23. If the plaintiff lost consciousness at all on impact, it was only for a very short time. She put her hands to her face and felt the severe laceration from the broken glass. She thought she had lost an eye. She picked up a towel from the driver's seat, to attempt to stem the flow of blood.

24. She was taken by ambulance to Canberra Hospital. On admission the facial laceration and chest wall injury were noted. She also hurt her knees and a tooth was broken. She was alert and conscious as the blood vessels were tied off and a blood transfusion was arranged. She was admitted under the care of Dr James. He described her state on admission and the immediate treatment as follows:
"Mrs Mills was first seen on 19.11.86, following a road traffic

accident in which she sustained multiple facial lacerations.
There was a large curved laceration running from the right pre-auricular
region towards the right commissure of the mouth, the
wound extending in its deepest part to the inferior border of
the zygomatic bone where a small portion of bone was fractured.
It included the superficial layers of the masseter muscle.
There was a full thickness laceration of the right upper eyelid
on its medial aspect which became full thickness at the free
margin of the eyelid lateral to the lacrimal canaliculus. There
was a small deep laceration on the upper lip on the left side
and a small shelving laceration on the medial side of the right
lower eyelid.
There were superficial lacerations to the upper lip on the
right, the mid forehead, the right forehead and the nose. All
the wounds were debrided, haemostasis was achieved, glass
fragments were removed and the wounds closed in layers where
appropriate and a padded dressing applied. Her post-operative
course was satisfactory."

She was discharged from hospital on 22 November 1986.

25. On 26 February 1987 the main scars were revised under general anaesthetic and the sutures removed after five days. There was a minor scar revision under local anaesthetic on 18 June 1987. On 11 April 1988 under a local anaesthetic both ends of the long scar on the right cheek were revised and the scar on the right lower eyelid was re excised.

26. In July 1988 Dr James described her condition as follows:

"Her present complaints are an area of sensory disturbance over
the right cheek. Paraesthesia is present which makes the area
uncomfortable to touch. The scar in the medial third of the
right upper eyelid is still tight and she experiences some
watering in the eye in dusty or windy conditions. She has
muscle twitching in the right cheek which has improved with time
but occurs episodically with variable intensity. She is
concerned with the obvious scarring on her face.
Although the scarring on her face has settled well with time,
the scars constitute a very obvious cosmetic deformity. The
follows scars are noted:
There are four scars across the forehead measuring 2 cms, 1.6 cms,
1 cm and 1 cm.
There is a small Y-shaped scar at the root of the nose.
On the medial third of the upper eyelid is a 1.5 oblique scar
with slight notching at the free margin of the eyelid.
There is a 1 cm scar on the left upper eyelid.
On the right lower eyelid there is a 4 cm horizontal scar which
at the moment is red from the recent scar revision and there is
a 1 cm complex of scars lateral to this.
There is a 1 cm scar on the left side of the nose.
There is a 1 cm scar on the left upper lip.
There is a 1.5 cm curved scar at the alar base of the nose on
the right side.
There is a 1.5 cm scar on the right ear with slight notching of
the free margin.
The scar causing major deformity is a 9 cm curved scar running
around the right cheek towards the commissure of the mouth on
the right side.
There will be some improvement in the quality of scarring over
the next two to three years, but the present appearance is
permanent and there will be no significant change. The symptoms
of which she complains are permanent."

In July 1991 Dr James reported:

"Her present complaints are:
Epiphora. She has an overflow of tears from the outer canthus
of the right eye which becomes worse in the cold and windy
weather. It is usually satisfactory early in the morning and
tends to become worse during the day.
The scar on the inner aspect of her upper right eyelid feels
tight, the eyelashes to the medial side of the scar tend to be
distorted and grow inwards and need to be plucked. Because of
the scar contraction, the medial one-third of the eyelid does
not close completely when she closes her eye.
The lateral half of her right lower eyelid tends to become 'baggy'.
The right side of her face, lateral to her nose and above the
long curved scar, twitches spasmodically. All the muscles in
this area are involved and it becomes worse when she is under stress.
She complains of clicking in the temporo-mandibular joint on the
right side on wide opening of her mouth.
There is a small nodule in the scar on the right forehead which
periodically becomes inflamed and may represent a retained
fragment of glass.
On examination, it is noted that there is a moderate degree of
notching of the right upper eyelid at the junction of the medial
and middle thirds and that a scar revision here would result in
significant improvement in terms of eyelid closure and
correcting the aberrant eyelashes.
A small procedure to open the tear duct on the right lower
eyelid may improve tear drainage and lessen her epiphora.
It is possible to tighten the skin of the lower eyelid and
remove the bagginess on the lateral aspect. The nodule within
the scar on the right forehead could be excised.
The temporo-mandibular joint on the right side appears normal
and I feel that the normal opening she has is due to voluntary
muscle movement rather than an abnormality within the joint.
The twitching of the right side of her face and the sensory loss
in her face are permanent as is the obvious scarring on her face."

27. In November 1986 dental examination showed fractures of two upper front teeth and restricted movement of the temporo-mandibular joint.

28. The plaintiff was aged 41 at the time of the accident. Her career and the photographs in evidence demonstrate that in appearance, vivacity, intelligence and personality she was strikingly attractive. Her appearance was basic to her activities, which had included television presentations and compering large public occasions as well as modelling and beauty care. Particularly in the early stages of her treatment the disfigurement to her face was gross. The scarring is still quite noticeable, as is the constant tic, and the eye discomfort. With courage and intelligence she has returned on occasions to public appearances, but the variety and type of work that she can now do is most restricted in comparison with what she could do before the accident, and with what she might reasonably have hoped to do in the future, and in which she was able to take pleasure and pride.

29. This aspect of her claim was not contested, though the defendant rightly commented on her strength of personality, which enabled her to appear again in public much sooner than might have been expected with a person less courageous.

30. She has many years ahead in which to see herself and reflect on what might have been.

31. Dr James has discussed with the plaintiff the possibility of some further procedures which might effect some minor improvements, and which would cost somewhere between $1000 and $1500. The plaintiff has not yet decided whether to undergo them. I think it best to take the possibility into account in assessing general damages.

32. For her pain and suffering and loss of amenity I think that a proper award of compensation must be in the order of $50,000, of which I would attribute $15,000 to the future.

33. Interest on the past component at 4% amounts in round figures to $2,900.

34. The out-of-pocket expenses are agreed at $5,276.50, of which the defendant is to receive credit for $4,513. Judgment will therefore include the sum of $763.50. The aspect of the case, however, which was most contentious was the extent of her economic loss.

35. The plaintiff was born in New York in 1945. She was educated in Canberra and began modelling and promotional work soon after leaving school in 1962.

36. In 1965 she began working as a Revlon consultant with David Jones, and later, in 1972 and later years, produced and compered a television program for that firm called "David Jones Notebook".

37. In 1978 she purchased the Kimberly Academy and Model Agency, which acted as agent for models as well as providing classes and training for them.

38. In January 1980 she purchased a share in a beauty salon called "Faces" in the Woden Plaza, which she carried on in conjunction with the model agency.

39. In April 1983 she bought out the interest of her partner, and in December 1983 sold the business in order to accompany her husband on a posting to the United States.

40. The precise figures at which she bought and sold her interests in the business are not, to my mind, very important, but I accept that by her skill and personality, she had built up the business over the time of her association with it. She was also doing television and compering work during 1983, the income from which was included in the accounts of the business.

41. Her 1984 tax return shows that for the 5 months to 30 November 1983, the net profit of the business was $9,838, her taxable income was $10,745, and her tax $1,528. Her income earning capacity, on the basis of those figures, would therefore have been of the order of $22,000 a year in 1983 and 1984.

42. During the stay in America she separated from her husband, and she returned to Australia with her two children in mid 1985.

43. In June 1986 she purchased a beauty parlour business at Griffith called "Pour la Femme". The income figures for the 1986 tax year are not a reliable indicator of her income earning capacity, because of the short time periods involved. The relevant return however, shows that goodwill was purchased for $8,000 and plant and fixtures cost $8,000. The business lost $1,786, and her modelling and compering activities yielded a net profit of $1,209 up to 30 June 1986.

44. She intended to build up this business also, as she had done with "Faces". Until 1 December 1986 she was subject to a covenant not to compete with "Faces", but was preparing for a publicity campaign to begin to attract business after that date. Meanwhile, from July 1986 she was managing the "Phase Mode" Model Agency while the owner was overseas, and building up her network of contacts in the beauty salon and modelling area. She had some additional income from compering work, and in September and October of 1986 some teaching in grooming and deportment at the Canberra TAFE.

45. She had also arranged with Mr Gary Green, an advertising agent, to do a series of television commercials for a client of his, Continental Decorators. A firm commitment was entered into that she should, over about a year, appear in five commercials at a fee of $300 each. There was also a distinct possibility that the number might expand to 10 or 12 commercials that year for that particular client. Mr Green also gave evidence that the plaintiff's abilities were such that she could well have continued to earn moneys of the same order for advertisements for other clients. She had performed in two of the five before the accident, to his complete satisfaction and that of the client.

46. The accident happened on 19 November 1986. Between then and March or April 1987 she was unable to attend personally to the business at "Pour la Femme". The business was carried on by a friend to whom she paid wages. Naturally, it did not prosper to the same extent that it would have done had she been able to put her plans into effect.

47. The scarring makes her unsuitable for appearance in television work, not only because of her appearance but also because attempts to conceal it with makeup cause too much discomfort under the hot lighting used.

48. She has done some compering work, on quite large occasions. She would also have some residual income earning capacity for doing voice over segments on television.

49. Her 1987 income tax return shows that she earned $1,504 from the ACT Society for the Physically Handicapped. $835 from the Department of Education, and $276 from compering. "Pour La Femme" incurred a trading loss of $6,987.

50. In the year to 30 June 1988 "Pour La Femme" incurred a loss of $2,071, and from other activities such as teaching at the TAFE, working in the catering industry and for the Society for the Physically Handicapped she earned enough to bring her taxable income to about $4,000.

51. In the next year, 1988/89 "Pour La Femme" managed a small profit of $513. In March 1989 the plaintiff entered into a partnership with three other people, conducting the business of a restaurant known as Rhiannons. Her share in the profits in that year was $7,205. After other investment income and expenses her taxable income was $6,726.

52. In the year 1989/1990 the number of partners in Rhiannons reduced to three. She became involved in running that business practically full time, and it is now her principal occupation. As her accountant commented, the business of "Pour La Femme" suffered badly from lack of close management, resulting from the plaintiff's involvement with Rhiannons.

53. The result for the year was a loss of $13,312, from a turnover of $30,282. Her share in the profits of Rhiannons was $14,582. She earned $580 from some television work.

54. On the basis of that material it is not possible to attempt an accurate computation of her economic loss to date. It is not proper to attribute the losses in income and the loss of goodwill in "Pour La Femme" entirely to the consequences of the accident. The plaintiff has chosen, for reasons that really have nothing to do with the accident, to go into the restaurant business, and it remains to be seen whether that business is more or less profitable for her than her pre-accident activities would have continued to be.

55. In view of the results that she had been able to achieve with the "Faces" business, I think it is reasonable to accept the estimate of her accountant, Mr Everall, that the business of "Pour la Femme" would have yielded a profit in the tax year to 30 June 1987 of about $8,000. In fact it lost $3,493, which is entirely attributable to the accident. The loss for that year is therefore, in round figures $11,500.

56. Again, on the same basis, I think that the business would have yielded at least $18,000 in the tax year to 30 June 1988, whereas it lost $2,070, all of which loss, again, I would attribute to the accident, giving a loss for that year of $20,000.

57. In the 1989 year a profit of the same order, $18,000, is a conservative estimate. In fact, there was a small profit of $500, and from March to June the plaintiff was actively engaged in the affairs of Rhiannons. It is possible that had she not been injured she might have persisted with the beauty care business and not gone into the restaurant, but the evidence does not persuade me that it is more likely. As a matter of judgment I would attribute a loss of $15,000 in that year to the accident.

58. Thereafter, I am not persuaded that the losses of income, or the loss of the value of the goodwill, is attributable to the accident.

59. Similarly, I think that the proposal to expand or move the business into Canberra Centre was not so developed and was subject to so many caveats, that I do not think that any value should be attached to such loss of opportunity as there was, if any.

60. On the evidence she has clearly lost the opportunity to perform in 3 television commercials in 1986 at $600 each, totalling $1,800.

61. There was no difficulty in her being able to combine this method of earning income with her other activities. There were no firm commitments for her to continue them on any regular basis, but I think it is reasonable to assess the value of the lost opportunity as being of the order of 5 such commercials a year, that is $3,000.

62. I also think it reasonable to assess her pre accident capacity to earn income from compering work at about $2,000 a year.

63. Those estimates are based upon a judgment so broad as not to require indexation on account of inflation.

64. Finally, there must be estimated the value of what she lost through not being able to combine the Model Academy and Agency work with the business of "Pour la Femme".

65. I accept the accountant's estimate of about $10,000 a year from this source, but only as an adjunct to a business such as "Pour la Femme". The extent to which the loss is attributable to the accident is subject to the same considerations as are set out above relating to that business. I would therefore allow $6,800 for 1987, $10,000 for 1988 and $7,500 for 1989.

66. All these figures are pre-tax figures. I do not have actual tax rates before me, but the gross figures are so much matters of judgment that I do not think injustice will be done to either side by my making a rough estimate on the basis of the figures set out in Mr Everall's report.

67. I estimate the past economic loss as follows.

Tax Pour TV Compere Model Gross Tax Actual Result
Year La Agency Loss Earnings
Femme
1987 11,500 1,800 1,200 6,800 21,300 5,000 2,615 13,685
1988 20,000 3,000 2,000 10,000 35,000 13,800 4,000 17,200
1989 15,000 3,000 2,000 7,500 27,500 6,000 6,700 13,800
1990 3,000 2,000 5,000 500 4,500
1991 3,000 2,000 5,000 5,000
TOTAL 54,185

68. Again as a matter of impression, that global figure appears to me to be a reasonable estimate of her loss of income to date.

69. It would not be proper to attempt a calculation of interest on that loss. In lieu of interest I award a lump sum of $20,000.

70. For the future, I think that the only relevant income earning capacities are those from TV and compering. Taking account of inflation in the past, of the residual capacity that she has, and of the diminishing value of her capacities as she got older, I would mark out the area of judgment by looking at the value of about $5,000 a year, say $100 a week, for 15 years at 3% which yields a sum of $63,200. In my judgment a proper award for loss of income earning capacity is $60,000.

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

General Damages $50,000.00
Interest $ 2,900.00
Out-of-pocket expenses $ 763.50
Past economic loss $54,185.00
Interest $20,000.00
Future economic loss $60,000.00
Total $187,848.50

72. I direct the entry of judgment for the plaintiff in the sum of $187,848.50.