Annette Patricia Sullivan By Her Next Friend Ian William Sullivan v Yvonne Margaret Crafter [1993] ACTSC 36 (16 April 1993)

SUPREME COURT OF THE ACT

ANNETTE PATRICIA SULLIVAN by her next friend IAN WILLIAM SULLIVAN v. YVONNE
MARGARET CRAFTER
No. SC761 of 1987
Number of pages - 10
Negligence - Contributory negligence - Damages

COURT

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

CATCHWORDS

Negligence - Motor vehicle accident - Child running across suburban street - Failure to brake in time - No issue of principle.

Contributory negligence - 11 year old child - Standard of care - Objective - Standard expected of ordinary child of same age.

Damages - Assessment - Personal injury - Fractured tibia and fibula - No issue of principle.

McHale v Watson [1966] HCA 13; (1965-1966) 115 CLR 199

HEARING

CANBERRA, 22-23 February 1993
16:4:1993

Counsel for the Plaintiff: R. L. Crowe

Instructing Solicitors: Peter Smythe Burnett and Co

Counsel for the Defendant: J. D. Harris

Instructing Solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $83,243.09.

DECISION

MASTER HOGAN This is an action for damages for personal injuries received by the plaintiff in a motor vehicle accident on 21 January 1987. The plaintiff was then a child aged 11 1/2 years. She is now a few months over 17 1/2 years of age.

2. She remembers only having been at a friend's house on the opposite side of the street to her own, and of waking up in hospital.

LIABILITY OF DEFENDANT
3. Shortly before 5.00 pm on that day her father was placing a new registration sticker on his car in the driveway of his home at 35 Carbeen Street, Rivett. His daughter was at the home of friends at Number 26 Carbeen Street, which is almost directly opposite. Carbeen Street is a normal suburban street running roughly east west. The plaintiff's home is on the south side, the friend's house on the north. About 100 metres to the east Carbeen Street bends to run roughly north east. One housing block to the west of the plaintiff's home Gungurra Crescent forms a "T" intersection to the south.

4. As he worked on his car the plaintiff's father heard a thump, which he described as being "as though a large sack of potatoes was hitting an empty cardboard box". He moved from his car down the driveway, and saw his daughter lying on the road.

5. As he ran to her he looked to his left, and saw a car stationary about 40 or 50 metres to his left, with a door open, and the defendant running towards him from it. He had not heard any sound of a horn or of brakes being applied.

6. The accident was investigated by Constables Emerton and Birch. Constable Birch made the measurements on which he based the sketch plan of the scene which is in evidence, and Constable Emerton took a statement from the defendant, which she signed in his official field book. The relevant part of that statement was as follows:

"On Wednesday 21 January 1987 about 4.50 pm I was driving VW sedan
registered number NSW NZL-837 in a westerly direction on Carbeen Street.

I

am unable to say what speed I was actually travelling at but it wouldn't
have been over the speed limit. When I was about level with number 31
Carbeen Street I noticed a young person walking out of the driveway of
number 26 Carbeen Street. This person was just past the footpath. At

this
time I also saw a small yellow car travelling towards us on Carbeen Street.

The next thing the young person ran in front of the yellow car, hesitated
in the centre of the roadway and then ran again to my left. I then

swerved
to my left but the girl kept running and collided with the right hand side
of my car. I continued travelling on a short distance and then stopped in

Gungarra Street. I then got out of my car and went back to where the
person was lying on the roadway."

7. Constable Birch noted a blood stain on the road, which he indicated was 3 metres west of a traffic light pole on the south side of Carbeen Street, and 6.5 metres south of the northern kerb alignment of Carbeen Street. Carbeen Street is 10 metres wide.

8. The defendant gave evidence. She said that as she came around the bend in Carbeen Street she was travelling about 50 kilometres an hour. When she was driving along the straight portion of the road she saw the plaintiff coming down a driveway. At one stage she was walking down the driveway and then she started to run. She estimated her distance away when she first saw the plaintiff as 40 to 50 metres away.

9. She also said that she saw a car coming in the opposite direction, further from her than the plaintiff.

10. The examination continued:

"MR HARRIS When you saw that what did you do?
DEFENDANT As the girl was about to run onto the road I
thought that the other car was going to hit her
because it was a lot closer to her than I was at that
stage and so I veered my car to the left to avoid it.
MR HARRIS At that point did you travel - after you'd moved
to the left did you travel for some distance further
to the left but still on the roadway?
DEFENDANT Yes, that's correct.
MR HARRIS Why did you veer to the left?
DEFENDANT Because I thought the other car was going to hit
the girl so I wanted to move across as far as I could
so it had a chance to swerve if it had to.
MR HARRIS So the other car would have a chance to swerve?
DEFENDANT Yes, so it wouldn't hit me.
MR HARRIS What about the speed of your vehicle? Did you do
anything about that?
DEFENDANT I slowed down my vehicle as I was pulling over to
the side.
MR HARRIS Now - - -
MASTER How, by taking your foot off the accelerator or
by putting your foot on the brake?
DEFENDANT I remember taking my foot off the accelerator and
I think I lightly braked at that stage.
MASTER When you say the girl was walking and then
started to run, are you able to say where in relation
to the gutter she was when she started to run? Was
she still on the driveway or had she gone on the road?
DEFENDANT Yes, she was still on the driveway.
MASTER Still on the driveway?
DEFENDANT Yes.
MASTER And could you say how far back from the gutter
she was when she started to run?
DEFENDANT I think there's a footpath that goes between the
road and the house.
MASTER Yes?
DEFENDANT Yes, I think it was about there, about the footpath
that she actually started to run."

11. She then stated that she thought the other car was going to hit the plaintiff, or might collide with her car in trying to avoid hitting her.

12. The plaintiff however passed in front of the other car, and the defendant said that she then veered even further to the left, going up the gutter, and as she went up the gutter the plaintiff hit the front right hand mudguard and then the side mirror of the Volkswagon. She had seemed not to notice anything as she ran across the road, though a split second before she hit the car she hesitated and then went forward and collided with the car.

13. In answer to interrogatories sworn on 20 September 1991 the defendant gave the following description of the accident:

"2.9 The VW was coming around the kerb (sic) in Carbeen Street at
approximately 50 to 60 kilometres per hour. I noticed the plaintiff
running down a steep driveway and a yellow car coming towards me in the
eastbound lane of Carbeen Street. The plaintiff showed no sign of

stopping

before crossing the street and approximately 3 to 4 metres before the
collision I applied the brakes, slowing the VW to approximately 30 to 40
kilometres per hour. At the same time I veered sharply to the left,
mounting the southern kerb of Carbeen Street at which point the plaintiff
ran into the front right hand side of the VW."

14. When cross-examined about that answer she agreed that by "kerb" she meant the right hand bend that she had negotiated in Carbeen Street. She also insisted that when she first noticed the plaintiff she was walking, but that she started running while still on the driveway, and showed no sign of stopping before crossing the street. She braked heavily just about the time of impact, but not before that.

15. When talking to police on the day of the accident she had identified the approximate position where she had first seen the plaintiff by reference to the police vehicle, which was parked outside Number 31 Carbeen Street. Mr Sullivan had measured the distance from the bloodstain on the road to the mid point of 31 Carbeen Street as being 59.5 metres.

16. Miss Snowden, a passenger in the front seat of the defendant's car, gave evidence. She confirmed the general picture of seeing the plaintiff running down the driveway, of another car coming in the opposite direction, of the plaintiff running across the front of that car, while the defendant swerved to the left, and of the plaintiff being struck by the front right hand mudguard. She also estimated the defendant's speed at 50 to 60 kilometres an hour after they had come around the bend.

17. There was a considerable conflict of evidence about the position in which the defendant's vehicle came to rest. It was hotly contested because a consultant traffic engineer, Mr Jamieson, used that position to calculate a stopping distance, and from that to infer a pre braking speed, of the defendant's car. Having made a number of assumptions he estimated that speed at 72 kilometres an hour, plus or minus 5. I am not sufficiently satisfied about the point at which her car came to rest, or about the manner in which the defendant applied her brakes, to place very much reliance on that evidence. The variables seem to me to be consistent with at least the possibility of a pre braking speed of the order of 50 to 60 kilometres an hour, as claimed by the defendant.

18. On the other hand, Mr Jamieson gave some other evidence, about which I have no real doubt at all. That is, that once the brakes were properly applied on that car, travelling entirely on the road, from an initial speed of 60 kilometres an hour, it would stop in about 22 metres. If the driver's reaction time were one second, the total stopping distance would be about 39 metres. A conservative reaction time of two and a half seconds would give a total stopping distance of about 63 metres. That is about the same distance as that from the point where the defendant first observed the plaintiff to the place where the blood was on the road, which in this case would not have been very far away from the point of impact.

19. Those calculations are not conclusive, as the starting point and the speed are only estimates based on memory and perhaps imperfect perception at the time.

20. However, they are quite consistent with the impression that I have on looking at the photographs of the street, and judging the distances and times involved on the basis of the evidence, and in the light of common experience.

21. Carbeen Street is not a narrow street. There is a generous nature strip and footpath on each side, and visibility is excellent. The statutory speed limit in the area is 60 kilometres an hour. But I do not agree that a driver is therefore entitled to travel at the statutory speed limit at all times and in all circumstances. This is a suburban street, with homes on each side. The defendant was driving along it at about 5.00 pm on a summers day. It was not merely possible, it was probable that children might run out into such a street at such a time. A reasonably prudent driver should drive at such a speed and at such a standard of alertness that she could stop her vehicle in much less than 60 metres or so. Even if the plaintiff was not running when the defendant first saw her, she began to run very shortly thereafter. She gave no indication that she had seen either vehicle, or that she was about to stop before running on to the road. The fact that there was another car coming in the opposite direction does not seem to me to be a valid reason for not braking. It seems to me to be an additional reason for doing so. An alert driver would advert to the possibility of danger on seeing the child walking down the driveway, and be prepared to brake as soon as she began to run. The point of impact on the VW shows that had the defendant been travelling just a little more slowly, and braked a little earlier, there would have been no collision. But in fact she travelled the greater part of about 60 metres without braking at all. In her statement to the police she did not mention braking. In her answer to the interrogatories she said she applied the brakes 3 to 4 metres before the collision. In her evidence she said that she slowed down as she veered to the left, and perhaps lightly braked. She was jamming on the brakes just as the plaintiff ran into her. Despite the complicating factor of the vehicle coming in the opposite direction, that failure to brake earlier, in my opinion, was a failure to exercise reasonable care for the safety of the plaintiff.

22. Subjectively, the defendant may have been confused by the situation which confronted her. She had been licensed for only 18 months. But she did not claim in her evidence that she was confused. She claimed that she panicked after the impact, in explaining why she travelled such a long distance before finally stopping in the vicinity of Gungurra Crescent. When asked in cross-examination, "Do you think you made a mistake in not braking when you first saw the little girl running down towards the road?" she replied, "No, I don't think I did. At the moment when I realised that something was going to happen, I did what I thought was best at the time."

23. I accept that answer as being truthful. But all that means in this case is that she did not then realise what action a reasonably prudent driver should take in the circumstances. I do not agree with the submission that the presence of the vehicle coming in the opposite direction, and the possibility that it might strike the plaintiff, brought into play any considerations of "the agony of the moment", so as to relieve her of the obligation of starting to brake as soon as possible after perceiving that a dangerous situation was developing ahead. Her failure to brake was not a mere error of judgment under difficulties. It demonstrated a lack of skill rather than carelessness, but nevertheless the skill and judgment that she displayed fell short of that which is to be expected from the reasonably prudent and skilled driver of a car on a public street.

24. There will therefore be judgment for the plaintiff.

CONTRIBUTORY NEGLIGENCE
25. The defendant raised the issue of contributory negligence. It is undoubted that the plaintiff's age is a material factor, and her actions are to be judged by what would reasonably be expected of any person of her age and development. McHale v Watson [1966] HCA 13; (1965-1966) 115 CLR 199, esp per Kitto J at 215 and Owen J at 229-230. That is an objective test, but it is also relevant, especially when weighing up respective responsibilities, that this plaintiff was not cross-examined at all about her training and awareness about running across streets. Having seen both her parents in the witness box I have no doubt at all that she had been given all the safety instruction that she would have needed, appropriate to her age and development.

26. But she was still not yet 12 years of age. I have no doubt at all that, for example, while waiting for a school bus on a main street she would have then been perfectly well aware that she should not run out into the street without warning. But it is, I think, of the nature of children of that age that they do not carry the benefit of that sort of training with them at all times and in all places. She was leaving the home of her friend to go back to her own home directly opposite, in a residential suburban street. It would be a very mature twelve year old who would, in these circumstances, stop and go through her kerbside drill.

27. The onus being on the defendant, I am not satisfied that she failed to take such care for her own safety as it was reasonable to expect from a child of that age in those circumstances.

DAMAGES
28. The plaintiff did not suffer any substantial head injury, and did not lose consciousness after the accident. Her father described her distress as she lay on the hot bitumen, while he tried to prevent her from moving lest she hurt herself more. She was taken by ambulance to Royal Canberra Hospital, where she came under the care of Dr Coyle.

29. He found compound comminuted fractures of the distal midshafts of the left tibia and fibula. The grossly displaced fractures were associated with an 8 centimetre bursting wound on the front of the shin, and considerable soft tissue stripping. There was also a deep ragged laceration of the ventral surface of the right forearm. She gave evidence of also having bruises on her temple, legs and hips, and cuts on her body.

30. She was taken to theatre where Dr Coyle operated. He cleaned and sutured in layers the extensive laceration of the right forearm. He reduced and fixed internally the compound fractures of the tibia and fibula. The wound was cleaned and loosely sutured, and the reduced position of the fractures was fixed by means of two Kirschner wires and an above knee padded plaster cast.

31. She made satisfactory progress in hospital. The plaster cast required wedging to improve the position of the fractures. After more than a week in bed she began to practise walking in the cast, which was of course quite painful.

32. She left hospital on 1 February 1987, but was re-admitted on 17 February. Not only was the plaster cast changed, but it was necessary to remanipulate the leg fractures under general anaesthetic to improve the position. Again, the plaster cast needed to be wedged a day or so later, after which she was again discharged on crutches.

33. At first she seemed to be progressing well. The cast was changed on 27 March, and removed on 10 April. There appeared to be good fracture union, but as the plaintiff attempted full weight bearing on the leg she suffered increased pain, and the leg began to bow out forwards.

34. On 8 May 1987 it was clear to Dr Coyle that the fracture was not uniting properly, so on 12 May she was re-admitted to Royal Canberra Hospital. In addition to open reduction and internal fixation Dr Coyle took some bone from the left iliac crest to bonegraft the site, and a seven hole plate and screws were used to fix the corrected position of the fracture under compression. She was discharged on crutches a little over a week later. After about 8 weeks she began weight bearing again.

35. Dr Peter Brown assessed her scars in September 1987. He postponed treatment until after treatment of the leg had been completed.

36. The fractures went on to satisfactory union, and on 14 December 1987, again under general anaesthetic, Dr Coyle removed the plate and screws. He removed the sutures on 24 December 1987. X-rays then showed the fracture to have soundly united, but the bones were osteoporotic.

37. Dr Vance examined her for the defendant in March 1988, and Dr Andrea in June 1988, but their reports do not differ from those of her treating doctors in any significant respect. Apart from the scars there was .5 centimetre shortening, but Dr Andrea did not think that significant. The tibia was aching from time to time, especially with changes in the weather, but she was gradually returning to limited forms of sport such as fun runs or ball games.

38. On 9 August 1988 she was running around in a class room while the teacher was out of the room, and when she put her foot on the ground with some force the leg broke again. She was in pain. An ambulance took her to Royal Canberra Hospital, where the fracture was reduced in the casualty department, and a plaster cast applied.

39. She saw Dr Coyle on 12 August. X-rays showed a transverse fracture through the old fracture site, with a typical pathological appearance. Dr Coyle reset the fracture and applied a fresh cast, which was removed on 7 October 1988. This conservative treatment, however, also failed, so that she was again admitted to hospital, where, on 17 October 1988, under general anaesthetic, Dr Coyle again openly reduced and internally fixed the tibial fracture, using a dynamic compression plate and 8 screws. She went through the whole recovery procedure again, first using crutches and then weight bearing until the fractures united.

40. On 27 April 1989 the plate was removed under general anaesthetic. Her subsequent recovery was unremarkable for the doctors, but of course painful for her.

41. When Dr Vance re-examined her for the defendant in October 1989 she had just been advised that she could return to light sporting activities. Pain at the fracture site was decreasing. She was walking well without a limp, and no shortening or lengthening in the leg. There was extensive scarring, some of it adherent, and wasting of the calf muscle of 1 centimetre.

42. The defendant does not contend that the second fracture was not a consequence of the accident, as in the light of Dr Coyle's evidence it clearly was.

43. In the course of his regular review of the plaintiff's condition, in May 1990, Dr Coyle noticed that her left knee hyperextended. He suspected a stretching of the ligaments within the knee, either by the initial injury or as a result of disuse, though he thought that growth processes might be responsible. Her complaints to him in August 1990 were:

1. Persisting weakness of the left lower limb.
2. Scarring on the left leg and forearm.
3. Altered sensation of the shin of her right lower leg (which had been
severely bruised in the accident), and of part of her right forearm,
lower left leg, and of the graft donor site on the left anterior
pelvis.
4. Back kneeing, or hyperextension, of the left knee.

44. She walked normally without a limp, by being careful of the hyperextension, which then added about 13 degrees of forward movement of the leg at the knee.

45. When Dr Coyle examined her in November 1992 there had been some improvement in the hyperextension, which he measured to be only 10 degrees. He was then more of the view that growth processes were the cause of the hyperextension, and that there was unlikely to be further change. In other respects the knee was normal. He did not forecast more than a possibility of arthritis in the joint, which, if it occurred, would not develop in less than 30 years. His advice to her was that she could resume all sporting activities without running any significant risk of re-injuring the leg.

46. Dr Peter Brown re-examined her in August 1990. He described the scarring as follows:

"CLINICAL EXAMINATION
In the left lower leg there is a linear scar in the anterior aspect
of the mid third in the pre-tibial region. The scar measures 15 cms
in length and there is slight adherence of the scar to the underlying
tibia.
The broad transversely orientated slightly curved scar is still
present in the left lower leg and this scar passes medially for a
distance of 6 cms.
The scar in the skin of the right forearm is unchanged. It is white
in colour, still 8 cms in length and slightly depressed.
The scar in the skin of the left hip remains at 3 cms in length.
All scars are now pale in colour and in my opinion have reached a
static state and are unlikely to improve with the further passage of
time.
There will be permanent scarring at all sites and this will cause her
a significant permanent cosmetic disability.
The scar involving the right forearm could be improved marginally b y
surgical revision and resuture."

47. Dr James, another plastic surgeon, examined her on 15 July 1991. His description, although a little more detailed, is not significantly different. He reported:

"On the left tibia there is a 15 cm scar down the anterior surface of
the tibia, which is depressed centrally, with obvious stitch marks.
There is a 1 cm circular pigmented scar to the medial side of this
scar. On the medial side of the leg centrally there is a 6 x 0.5 cm
oblique scar which is soft, white and mobile.
On the right forearm there is a 9 x 1 cm oblique scar to the medial
side with some central depression, which is obvious on rotation of
the forearm.
On the left hip there is a 4 cm oblique scar on the anterior aspect
of the hip which is of good quality. This is the bone graft donor
site.
On the right calf there is a 5 x 4 cm area of diminished sensation,
being the site of an abrasion. No scarring is obvious.
All the scars are permanent and constitute an obvious cosmetic
deformity. The scar on the anterior aspect of the left tibia and the
scar on the right forearm could be revised with advantage to remove
the contour defect and narrow the scar. This could be done under a
general anaesthetic and would require probably two days
hospitalisation with a convalescent period of three weeks. The
surgical fee for this procedure would be $600.00, plus anaesthetic
fee, plus hospital charges.
The area of diminished sensation on the right calf is likely to be
permanent as no recovery has taken place since the accident."

48. The plaintiff did not give any evidence about an intention to undergo any operation on the scars. She did say that she is embarrassed and self conscious about them, especially in public places such as the beach. At his examination in November 1992 Dr Coyle was surprised at the lack of concern that she expressed about the scarring. I think that it does concern her, but that it is unlikely that she wants to undergo any further operations. An operation would only improve the appearance of the scars, rather than remove them. I propose to award damages on the basis that the scars are permanent in their present form, they do concern and embarrass her, but she does not intend to have any further operation on them.

49. Drs Vance and Andrea also examined her in October 1992. They confirm the picture of a leg which is functionally normal, except for the hyperextension, which is a minimal disability. She is left with the notable scarring on the leg, arm and hip, and minor scars on the left ankle. The fracture site aches occasionally when the weather changes. There are areas of disturbed sensation on the right leg. She is able to lead an active life.

50. Although the final result has been relatively satisfactory, the process of recovery has been long and complicated. She has undergone six operations under general anaesthetic, each attended by a painful process of recovering the use of the leg, with minor operations to remove sutures and replace or wedge plaster casts. The scarring is permanent.

51. For her pain and suffering I award $55,000, of which $8,000 would relate to the future. In assessing interest on the past component, I take into account that the various procedures all took place before May 1989, so that her suffering was concentrated in the earlier part of the period since the accident. It is therefore not appropriate merely to halve the interest rate for the whole period. I award $8,000 interest on past pain and suffering.

52. The out of pocket expenses are agreed at $15,175.09.

53. A claim was made for the value of the services provided by the plaintiff's mother in caring for her after the various operations. I accept Mrs sullivan's evidence about the times that she spent and I am satisfied that the services she provided were necessary and appropriate, and beyond what ordinary maternal care would have called for. I therefore allow the sum claimed, namely $5,068, in full.

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

Pain and suffering $55,000.00
Interest 8,000.00
Out of pocket expenses 15,175.09
Griffiths v Kerkemeyer 5,068.00
TOTAL $83,243.09

55. I direct the entry of judgment for the plaintiff in the sum of $83,243.09.

56. Since the plaintiff is still a minor I will hear counsel on the detailed directions that should be made about payment into and out of Court.

57. Unless there is some reason shown why I should not do so, I would order the defendant to pay the plaintiff's costs.