Cheryl Douise Pendrick v Hans Juergen Kuhn [1991] ACTSC 94 (29 October 1991)

SUPREME COURT OF THE ACT

CHERYL DOUISE PENDRICK v. HANS JUERGEN KUHN
S.C. No. 1365 of 1987
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - Contributory Negligence - Motor Vehicle Accident - Intersection - Traffic Lights - Amber Light - No Issue of Principle.

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Whiplash - Lacerations - Facial Scar - Lumbar disc damage - No Issue of Principle.

HEARING

CANBERRA
29:10:1991

ORDER

Judgment be entered for the plaintiff in the sum of $57,959.00.

DECISION

This is an action for damages for personal injury sustained by the plaintiff in a motor car accident on 16 July 1987.

2. The accident occurred at the intersection of Canberra Avenue with Ipswich Street and Hindmarsh Drive. At the time of the accident the intersection was controlled by traffic lights.

3. A diagram of the intersection as it then was is Exhibit "2". The plaintiff was travelling from Canberra towards Queanbeyan. As she approached the intersection the carriageway was divided into three lanes, the left hand lane, closest to the kerb, being for traffic turning left into Ipswich Street into Fyshwick. The centre lane was for through traffic, the right hand lane was for traffic travelling through or making a right hand turn into Hindmarsh Drive to travel towards Woden. For traffic travelling in the opposite direction, that is from Queanbeyan towards Canberra there were also three lanes, the two nearest the kerb being for through traffic and that nearest the median strip being for traffic making a right hand turn into Ipswich Street.

4. The configuration of the intersection has since been changed, and Constable Birch, who investigated the accident, was unable to remember whether vehicles travelling from Queanbeyan intending to turn right into Ipswich Street would have a protected green arrow phase on the lights. I think it is clear from the descriptions of the accident by all the witnesses that there was not.

5. The accident happened in the middle of the day. The plaintiff was travelling in the lane nearest the median strip. As she approached the intersection she noticed a vehicle which had proceeded past the line in respect of the lights and was stationary within the intersection, obviously waiting to proceed with a right hand turn into Hindmarsh Drive. She said that the vehicle had proceeded out of her line of travel, so that it would have been within the prolongation of the sides of the median strip in the centre of Canberra Avenue.

6. The lights changed to orange as she approached them. She continued through the orange light and collided with a vehicle driven by the defendant. That vehicle had been proceeding in the opposite direction and was in the course of making a right hand turn from Canberra Avenue into Ipswich Street. The front of her vehicle collided with the left hand side of the defendant's vehicle.

7. In her evidence in chief she stated that when the light turned to orange she was approximately three metres from the line. She claimed that she was then travelling at about 50 kilometres an hour. She said that there would have been vehicles behind her and that when the light changed to orange she was too close to the line to have any chance to stop with safety. She denied that she accelerated after she saw the light change.

8. After the accident she was interviewed by Constable Birch in hospital.

9. She conceded that amongst the questions and answers as recorded by Constable Birch, were the following:
Q. "About what speed were you travelling at just prior to

the collision.
A. I don't know.
Q. Why don't you know.
A. At the time I was going through the traffic lights.
Q. Do you agree that there are traffic lights erected at
that intersection.
A. Yeah.
Q. What colour was the traffic light facing in your
direction at the time you entered the intersection.
A. Orange.
Q. How far back from the intersection were you when the
light changed to orange.
A. I don't know. If it was red I would have definitely
stopped.
Q. Are you aware of your obligations when approaching orange
traffic lights.
A. Yeah. I didn't think that there was anyone turning. The
car turning right blocked my view.
Q. Did you slow down or stop prior to entering the
intersection.
A. I slowed, yes, I was thinking about going to stop but if
I did I would have finished up in the middle.
Q. Did you accelerate to make it through the intersection.
A. Yeah I think I would of, yeah.
Q. In relation to the intersection, where was the other car
when you first saw it.
A. In front of me.
Q. In relation to the intersection, where was your car when
you first saw the other vehicle.
A. I think it was inside the intersection.
Q. Did you realise that if you entered the intersection,
that a motor vehicle collision would result.
A. No, not at the time.
Q. How would you describe the traffic conditions.
A. Medium.
Q. Do you think that your actions were dangerous.
A. Actually yes.
Q. What do you believe was the cause of the collision.
A. Me not stopping at the orange light. There was no view
of the other car that I hit.
Q. Could the collision have been avoided.
A. No.
Q. At the time you entered the intersection, could the
traffic lights have been red.
A. I don't know, I didn't look."

10. In evidence she claimed that while she was talking to the police officer she was in a lot of shock and not answering properly. I think that the answers that she gave to Constable Birch so soon after the accident more probably record her perception of what happened than her evidence given so long afterwards, when, even unconsciously, imagination and self interest have had the opportunity to work upon memory.

11. The defendant did not give evidence because he was still resident overseas at the time of the hearing. The statement that he made to Constable Birch is in evidence. It reads,

"At the intersection I stopped in the right turn lane with the
intention to turn right into Ipswich Street. The traffic light
facing in my direction was green so I moved into the intersection
but due to the amount of traffic I had to stay in the intersection
until the light changed to orange/red before I completed the right
hand turn.
The lights changed to orange, I saw her way back and because the
lights were changing to red I presumed that she would stop. The
lights changed to red so I continued through. I had travelled
through one lane. I was in the other lane when she came through.
The front of her car collided with the passenger side of my car. I
put the foot on the clutch and rolled through the intersection. Her
car came to a stop still within the intersection."

12. The following questions and answers were also recorded,

Q. "In relation to the intersection, where was the other car
when you first saw it.
A. She was well back but the lights were green. The lights
changed to orange. She was about over 100 metres away.
Q. At the time you continued into/through the intersection,
where was the other motor vehicle.
A. About 900 metres away.
Q. About what speed do you think the other vehicle was
travelling at.
A. Over eighty for sure.
Q. Did it look like she would stop at the lights.
A. I can't say.
Q. What do you believe was the cause of the collision.
A. I believe that she didn't see the red light.
Q. Where in relation to the intersection was your vehicle at
the time your lights changed to red.
A. I had just started moving across the first lane of the
other carriageway."

13. Although the second answer is recorded as "900", I think that it is clear that "90" is meant.

14. In his report of the accident to the insurance company he stated,

"I was turning right at traffic lights. The light changed to
yellow. Oncoming car was well away. I proceeded. Oncoming car
sped up unexpectedly and accident occurred."

15. On that same form he estimated the speed of his own vehicle at the time of impact at 5 kilometres an hour, and of the other vehicle 100 kilometres an hour, and the estimated speed fifty metres before impact of his vehicle he stated as nil, and of the other vehicle 90 kilometres an hour.

16. I would comment that his estimates of speeds and distances obviously cannot be relied upon. There is no explanation why he should have expected a vehicle travelling at 90 kilometres an hour fifty metres before the impact to stop because the lights were changing.

17. But the defendant's case does not depend upon those recorded estimates of the defendant himself. The vehicle immediately behind the defendant's was driven by his brother-in-law, Mr Rosensweig, with Mrs Rosensweig as a passenger. They both gave evidence.

18. Mr Rosensweig told of Mr Kuhn stopping at the red lights and then proceeding into the middle of the intersection and stopping to wait for the traffic in the opposite direction to clear before making the right hand turn. When asked "What happened then?", he replied, "Well, the lights changed to red and then Hans moved off and then this car hit him." When asked whether he saw the other vehicle prior to the collision, he said that he did not see it until it was just crossing the line at the lights, and at that stage the lights were red. In cross-examination Mr Rosensweig agreed that when he was interviewed by Constable Polkinghorne about his observations, he had said, "I didn't take any notice of the colour of the traffic light that was facing in my direction when he moved off."

19. However, he insisted that his brother-in-law had not started to move forward until the lights changed to red because there were still some cars going through an orange light. In re-examination it appeared that before he told the Constable that he "did not take any notice of the traffic lights facing me", he had already informed him that the lights had changed to orange and then to red.

20. Mrs Rosensweig gave evidence that she was a passenger in her husband's car. They were travelling behind the defendant, they stopped at the red lights, when the lights turned green they proceeded to the centre of the intersection and waited until the lights turned orange. She continued, "And then they turned red and my brother-in-law proceeded to go across the intersection." She confirmed that there was a vehicle similar to a van turning right in the opposite direction. When she first saw the plaintiff's car, the lights were orange, and the plaintiff was about three or four car lengths back from the intersection. It was then obscured from her vision by the turning van. She estimated its speed as being nothing under 80 kilometres an hour.

21. Those versions of the collision are in broad terms, consistent with each other and with the statements made by the defendant. If they are accepted, it is obvious that by far the greater responsibility for the collision would rest with the plaintiff. However, the accident was observed by a Mrs Hinton who displayed sufficient public interest to leave her name and address so that the plaintiff was able to call her to give evidence. She had been driving in a line of traffic two cars behind the plaintiff's car. She observed that as the plaintiff's car approached the intersection the lights were orange. The vehicles were travelling with the general flow of traffic at a normal speed. She observed the van stationary within the intersection waiting to turn towards Woden, and when she was asked how far back from the line in respect of the lights the plaintiff's vehicle was when the change occurred from green to orange, she estimated about half a car length. The vehicle between her and the plaintiff's vehicle was able to stop at the lights, and she stopped behind it.

22. She also estimated that when the lights turned to amber there was only a car length or so between the plaintiff's vehicle and the car that was between them.

23. All that appeared to me relevant in her cross-examination was that in order to obey the amber light, both she and the driver of the car ahead of her found it necessary to put their brakes on solidly.

24. I think it is apparent from what I have already said that I do not place a great deal of weight on the plaintiff's evidence about how the accident happened, although it well may be that some of the concessions that she made to the constable were more incriminating than was necessary. I think that Mr and Mrs Rozensweig gave their evidence with every attempt to recount what they remember as accurately as they could. But in the first place, their ability to observe exactly where the plaintiff was as the lights changed was to some degree, impeded by the van upon the intersection. Secondly, Mrs Hinton was in a better position to make observations because they related directly to decisions that she needed to make for her own driving at the relevant time. I accept her description of the accident as the most accurate.

25. It follows that the probabilities are that the defendant began to make the right hand turn while the light was only amber, and before it had actually changed to red, without making sufficient observation about whether a car in the position of the plaintiff's might still be travelling, as it is entitled to do, on the amber light. That constitutes a failure to exercise reasonable care and therefore there will be judgment for the plaintiff.

26. On the other hand, it also appears clear from Mrs Hinton's evidence that when the light did change to amber, the plaintiff, having another vehicle travelling at the same speed behind her, was travelling at such a speed and at such a distance from the lights, that it was perfectly reasonable for her to continue into and across the intersection. There was nothing in the circumstances that should have alerted her to the possibility that the defendant was about to make a right hand turn across her path. There will therefore be no deduction from the judgment on account of contributory negligence.

27. At the time of the accident the plaintiff was nineteen years of age and in good health. She had, shortly before the accident, moved to Queanbeyan in order to look for work and was not then employed. In the collision her vehicle stopped almost instantly on impact but was swung around at rightangles to the direction of travel. She was wearing a seat belt but she was severely shaken up and cut her chin on the steering wheel. She also hurt her wrists. A friend took her to hospital. On the way she discovered that the laceration underneath her lower lip was through the full thickness of the tissue.

28. The hospital notes record that on examination she had an irregular laceration of the chin that extended down to the bone. This required cleaning and suturing. Analgesics and Tetanus Toxoid were given. There had been no loss of consciousness. She was complaining of a sore chest and right knee. She vomited twice while x-rays were taken. She returned to the hospital on 19th July 1987 when antibiotics were prescribed and the sutures were removed. For about a week after the accident her neck was stiff and she suffered from a small laceration on her right knee and a sprained right wrist. She also began to have more serious pain in her lower back.

29. On 5 August 1987 she consulted a general practitioner, Dr Wright. He records that she was complaining then of back pain and left wrist pain. The laceration to her chin had required 15 sutures. On examination, he found tenderness of the lumbar spine, L4 to S1. There were no signs of nerve root damage.

30. X-rays of the lumbo-sacral spine and left wrist did not disclose any abnormality. He diagnosed ligamentous strain to both wrists and lumbar spine and advised treatment for her symptoms and physiotherapy. He noted that the chin laceration had hardened scarring which might require plastic surgery. The plaintiff returned to him on 7 August 1987 with continued symptoms.

31. Her solicitors referred her to Dr Keiller, who saw her on 24 October 1987. In addition to the complaints already noted, he observed that she had chipped front teeth. Her main complaint was of a painful low back. The plaintiff had started work as a labourer in August. In his opinion, she had made a full recovery from soft tissue injuries to her neck and left wrist and all other bruised areas were symptom free.

32. On 1 December 1987 she returned to see Dr Wright because the scar on her face was still inflamed and indurated. She still had mild tenderness in the lower back. He referred her to Dr Brown, Plastic Surgeon.

33. In February 1988 she was seen by a dentist, Dr Southwell. There had been minor chips to the edges of the upper central incisors and lower central and lateral incisors which had become, by then, almost completely smooth. There was a crack in the enamel of the upper right central incisor and the lower right lateral incisor. The teeth had a slight sensitivity to the cold, but they were all vital. He described the defects as minor and did not consider that any treatment was required at that stage, or that it was probable that it would be required in the future. It is possible, however, that some treatment might be needed. Dr James saw her on 28 March 1988. He noted a three and a half centimetre oblique scar across her lower lip, the medial two centimetres of which was thick and red and tender. There was a one and a half centimetre scar of good quality below the right knee. He advised that the scar on her chin should be operated upon. She underwent the operation on 6 June 1988 under a local anaesthetic. By 2 December 1988 there had been an overall improvement in the scar. The right side was satisfactory, though on the left one and a half centimetres the scar was slightly stretched and still a little red. He expected further improvement.

34. She had first obtained work as a Nipper at the construction site of the new Parliament House, which was relatively light work, although sweeping floors gave her some problems with the lower back. She had a riggers certificate and then worked as a dogman for Mr Picker, with whom she was living. If any heavy work was involved she asked the crane driver to help.

35. She became pregnant in June 1989 and gave birth to a son. During her pregnancy she suffered from extra pain in the lower back.

36. On 12th June 1990, almost three years after the accident, she attended Dr Wright still complaining of back pain which radiated into the left hip with associated left leg numbness. Her lower lumbar spine was tender. A CT scan was taken which showed localised posterior bulging of the disc at L4/5 level. r Wright reported that there was a possible disc disruption at the L4/5 level. He prescribed Voltaren tablets and gave her advice about how to live with the back pain by avoiding excessive bending and activities that might aggravate it.

37. Most recently Dr Keiller reviewed her condition on 27 March 1991.

38. She had not resumed work since having the baby. Her back was aching fairly continuously and aggravation occurred if she lay prone. She complained of discomfort on prolonged stooping or very prolonged sitting.

39. On examination he found no neurological deficit. In his opinion she had recovered from her neck and knee injuries, but she now had both symptoms and signs which suggest mechanical instability at the L4/5 level of her lower back. He advised conservative treatment and avoidance of activities which might provoke further symptoms. He expects that the most likely scenario for the future is that she will continue with some degree of backache indefinitely, and possibly at long and infrequent intervals there may be acute attacks of more severe pain lasting for a short time, but responding fairly rapidly to rest and simple therapeutic measures.

40. The accident must also be considered as likely to play some part in any increasing degenerative changes associated with ageing in the very long term. He advised against work which required heavy lifting, prolonged stooping or bending.

41. On 30 May 1991, Dr Andrews reviewed her condition for the defendant. He was not convinced on viewing the CT scan that there was a disc bulge at L4/5. He noted that the back pain had not required any active treatment with medication or physiotherapy. He suspected that the problems in the lumbar spine are muscular and ligamentous.

42. None of the doctors were cross-examined, but simply because both Dr Keiller and Dr Wright agree about it, I think it is more likely that the CT scan does show some sign of injury to the disc, and that Dr Keiller's description of her condition and prognosis is probably the more accurate.

43. In summary, she received in the accident a whiplash injury to the neck, a seatbelt injury to the chest, bruising to both knees, bruising to the ribs, two chipped teeth, injury to both wrists, a deep laceration under the lower lip and the injury to the lower back.

44. After Dr James' treatment, the facial laceration is now stable. It is by no means disfiguring, but nevertheless it remains a significant cosmetic disadvantage. She still suffers from pain in the lower back, and in that regard, as I have said, I think that Dr Keiller's prognosis is accurate.

45. For her pain and suffering I award $50,000, of which $10,000 would relate to the future.

46. I award $6,850 as interest on the past component of that item.

47. There was no claim for past or future loss of income.

48. The defendant agreed that medical expenses had been incurred amounting to $1,109, and I see no reason to disallow any part of them.

49. The total award is therefore as follows:

General Damage $50,000.00
Interest $ 6,850.00
Out-of-pocket expense $ 1,109.00
TOTAL $57,959.00

50. I direct the entry of judgment for the plaintiff in the sum of $57,959.00.