Karen Leigh Bartak v Evonne June Stanborough [1991] ACTSC 91 (25 October 1991)

SUPREME COURT OF THE ACT

KAREN LEIGH BARTAK v. EVONNE JUNE STANBOROUGH
S.C. No. 1232 of 1988
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - Contributory Negligence - Motor Vehicle Accident - No Issue of Principle

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Bruising - Minor Facial Scarring - Injured Ankle - No Issue of Principle.

HEARING

CANBERRA
25:10:1991

ORDER

Judgment be entered for the plaintiff in the sum of $19,089.00.

DECISION

This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 24 July 1987.

2. At about 4.30 in the afternoon the plaintiff was driving a motor vehicle east in Hindmarsh Drive at the intersection of that street with Namatjira Drive. In that area Hindmarsh Drive is a major traffic artery with at least two lanes of traffic in each direction and the intersection with Namatjira Drive was controlled by traffic lights. The speed limit in Hindmarsh Drive was 80 kilometres an hour. At the time the traffic lights did not have a protected phase for traffic making a right hand turn into Namatjira Drive.

3. As the plaintiff approached the intersection she noticed a vehicle which was stationary and in the appropriate lane for making a turn right into Namatjira Drive from the direction opposite to that in which she was travelling. As she approached the intersection she lifted her foot from the accelerator. As she entered the intersection the defendant's vehicle, which had up till then been stationary, commenced to make the right hand turn into the plaintiff's path. The plaintiff, it appears, had no time to brake, and there was violent collision.

4. In a conversation with the police officer who investigated the accident the defendant admitted that she did not see the plaintiff's vehicle at any time, and it was not contested that the defendant failed to take reasonable care. There will therefore be judgment for the plaintiff.

5. Counsel for the defendant submitted that the plaintiff failed to take reasonable care for her own safety in that she was travelling at an excessive speed and that she did not brake at any time before the accident.

6. There is no independent evidence that the plaintiff was travelling at any speed in excess of the posted speed limit. The degree of damage to the vehicles does not enable me to infer that she was travelling at any particular speed. The plaintiff has not made any admissions at any time that she was travelling at a speed in excess of the speed limit. I accept her evidence in fact, that as she approached the intersection she had been travelling at or close to 80 kilometres an hour, but that she had removed her foot from the accelerator, which would have reduced her speed slightly.

7. I am not persuaded that to travel at that speed on a major traffic artery at that time alone constitutes a failure to take reasonable care.

8. The defendant did not give evidence, and there is no other evidence, about the distance that separated the two vehicles when the defendant began to make the right hand turn in front of the plaintiff. I am therefore not satisfied that there was anything in the circumstances that would have alerted the plaintiff to the possibility that the defendant was about to turn in front of her so as to require her to brake. I do not think that it is an accurate statement of the law to say that people are entitled to expect other road users to obey the rules, or to drive carefully. But in the circumstances of this case I think that before I should make a finding that the plaintiff failed to take reasonable care for her own safety I would need to be persuaded that there was something in the circumstances that should have alerted her to the possibility of what was about to happen, and that she would have been so alerted in sufficient time to do something about it. The picture I have in my mind of this accident is that the plaintiff was suddenly presented with a situation of danger brought about by the action of the defendant, and in which she had no time in which to take any effective evasive action.

9. I am not persuaded that the plaintiff was guilty of contributory negligence and there will therefore be no reduction in her damages on that account.

10. The plaintiff was wearing a seat belt, and as the photographs of the car taken after the accident show, the impact was relatively violent. It is clear that the plaintiff struck her head upon the windscreen and lost consciousness for a short time.

11. When she came to she was resting on the steering wheel of her car. She was shocked and felt pain in her arm, her right ankle, and her face was bleeding.

12. She was taken by ambulance to the Woden Valley Hospital where the admission notes disclose that she was complaining of pain to her right ankle, her head and her chest and lacerations to her forehead. On examination some bruising was observed to her right ankle and tenderness to her chest and ribs with some bruising. There were multiple small lacerations to her forehead from shattered glass fragments. Steristrips were applied to two of these lacerations, while a deeper laceration on her right eyelid had two stitches inserted in it. She also had pain and redness in her right eye, though at the hospital it is not recorded that any glass was extracted from it. She was given a crepe bandage to her right ankle, issued with crutches and allowed to leave about an hour after admission.

13. Three days later she consulted her general practitioner, Dr Vett, who inserted some sutures in gashes above her right eye. The sutures were removed on 29 July by Dr Vett and on 31 July he prescribed physiotherapy for her right ankle.

14. Apart from visits to the doctor, she stayed in bed for the first few days after the accident, being cared for by her mother who drove her to and from the doctor.

15. She returned to work as a stenographer with the Department of Defence about two weeks after the accident, still using her crutches. After three or four days she was able to stop using them. About this time her chest was still sore and her ankle very sore. Her face was improving.

16. Dr Reeve took over the practice of Dr Vett and he saw the plaintiff on 4 March 1988, about nine months after the accident. She was then getting occasional discomfort in the right ankle. There was no abnormality that could be detected upon examination.

17. When Dr Keiller saw her for the defendant in February 1990 there were no abnormal physical signs on examination. In particular the right ankle and foot were fully mobile and pain free and there was no evidence of ligamentous instability. The scar on the right eyelid was barely visible. I agree with Dr Keiller's comment that the scarring does not constitute any significant cosmetic disfigurement. There was still residual discomfort in her ankle and foot from time to time, but no evidence that she had sustained any fracture or severe ligamentous injury.

18. Her only remaining disability seems to be a weakness of the right ankle, which affects her when she is wearing high heeled shoes, or walking along uneven ground.

19. Dr Cairns, who saw her for the defendant on 20 February 1991 could find no clinical evidence of instability about the right ankle, but there was some tenderness on palpation and forced inversion of the ankle. He thought that any nuisance symptoms from which she is suffering are almost certainly likely to subside with time, with appropriate exercises. There is really no conflict in the medical evidence of any substance. I think the best summary of her injuries and course of recovery is that given by Dr Duncan in his report of 8 November 1990, which I do not think I need set out in detail. I accept Dr Duncan's explanation that there may well have been a tear in the ligament which is taking a long time to heal. But as he comments,
"She may continue to have some minor trouble with the ankle but

there is no risk of her developing arthritis or longer term
complications. Her current function should be maintained or even
improved with time. There is no impairment of static ankle
function, but she does have a very slight, but definite, impairment
of dynamic ankle function which has resulted in an inability to do
more vigorous activity which requires more than walking."

20. For her pain and suffering I award the sum of $16,000 of which no more than $2,000 would relate to the future.

21. I award $2,400 as interest at 4% on the past component of that item.

22. The out of pocket expenses are agreed at $179, and the loss of wages at $510. There is no claim for future economic loss.

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

General Damage $16,000.00
Interest $ 2,400.00
Out-of-pocket expense $179.00
Loss of Wages $510.00
TOTAL $19,089.00

24. I direct the entry of judgment for the plaintiff in the sum of $19,089.00.