Rebecca Kate Royal v Karen Louise Drake, Commonwealth of Australia and Sarah Jane Royal [1994] ACTSC 69 (1 July 1994)

SUPREME COURT OF THE ACT

REBECCA KATE ROYAL v. KAREN LOUISE DRAKE, COMMONWEALTH OF AUSTRALIA AND SARAH
JANE ROYAL
No. SC23 of 1991
Number of pages - 21
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Negligence - Motor Vehicle Accident - Intersection controlled by lights - Police Vehicle - Emergency - Proceeding contrary to Red light - Duty of care - No siren - Flashing blue light - Insufficient warning - Driver with green light - Failure to see police vehicle - Contribution.

Damages - Assessment - Personal Injury - Fractured Pelvis - Young woman - Children by Caesarean section - Fractured Clavicle - knee injury - No issue of principle.

HEARING

CANBERRA, 6-9 June 1994
1:7:1994

Counsel for the Plaintiff: Mr C O'Connor QC and Mr D Kennedy

Instructing Solicitors: Elrington Boardman Allport

Counsel for the First Defendant: Mr J Richards

Instructing Solicitors: Australian Government Solicitor

Counsel for the Second Defendant: Mr J Richards

Instructing Solicitors: Australian Government Solicitor

Counsel for Third Party: Mr M Williams

Instructing Solicitors: Abbot Tout Russell Kennedy

ORDER

The Court orders that:

1. Judgment be entered for the Plaintiff against both Defendants
for $151,326.00.
2. The Defendants pay the Plaintiff's costs, including the costs
reserved on 11 February 1994 and 25 February 1994.
3. Judgment be entered for the Third Party against the Defendants
4. The Defendants pay the Third Party's costs.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 21 April 1989.

2. The plaintiff was born on 17 December 1972. At the time of the accident she was 16 years of age, and a school student in Year 11.

3. She was a passenger in the front seat of a utility van being driven by her sister, Sarah. She was seated in the middle of the seat. Mr Jason Sands was a passenger in the front seat, sitting on her left, nearest the passenger door. Sarah and Jason were both wearing lap and sash seat belts. One issue in the case is whether the plaintiff was also wearing a seat belt.

4. The collision was violent. Her recollection of it is not clear. She remembers sitting in the car as it drove down Namatjira Drive and stopping at a red light. She can not remember moving off from the intersection. Her next recollection is sitting in the car, with her sister on her right, and then of being in an ambulance. She can not now remember whether she was wearing her seat belt adjusted.

5. She was in pain, from her waist down through her legs into her left knee, and in her shoulder. She was taken by ambulance to Woden Valley Hospital, where she was found to have suffered fractures of the right clavicle and of the pubic rami in the pelvis. She was admitted under the care of Dr Kitchin, orthopedic surgeon.

6. She was given analgesics and treated with bed rest. Her shoulder was strapped. She developed abdominal pain, which was checked by Dr Dyason, general surgeon. No operation was performed and the pain settled. A Jordan frame was used to lift her for hygienic purposes. She was in constant pain and discomfort.

7. Her parents returned from a holiday in Noumea. Her mother stayed with her constantly. The nursing staff were very busy and her mother carried out many tasks for her as well as comforting her.

8. She started to walk after about a week with the aid of a frame. The experience was also very painful, in her pelvis and legs. She was discharged home on 9 May 1989.

9. Dr Cairns, orthopedic surgeon, was a family friend, who had seen her in hospital. Her general practitioner, Dr Reading, referred her to him on her discharge, and he examined her on 22 May 1989. By then she had abandoned use of a walking stick. The pelvis was stable and not tender to pressure, there being an apparent shortening of the right leg by about 1 cm. There was slight tenderness of the site of the fracture of the clavicle, which X-rays showed to be healing in a satisfactory position. X-rays of the pelvis showed some distortion of the pelvic ring.

10. In a report of 20 June 1989 Dr Cairns expressed the view that there would be some residual deformity of the pelvic ring which might affect her child bearing capacity, and introduce the need for delivery of children by Caesarean section.

11. Dr Kitchin reviewed her on 23 May 1989. He thought the pelvic fracture would probably unite without any residual disability. He gave her some advice about exercise.

12. She returned to school, at least part time, at about the end of May. Her mother drove her to and from school. She had missed a lot of assessments in Year 11, and was assigned class average scores for some of her subjects.

13. Dr Reading reported in August 1989 that in addition to an ache in the shoulder, she had pain in the inner aspects of her thighs and low back. She was making a good recovery, he thought.

14. On 11 December 1989 a pelvimetry X-ray was performed at the request of Dr Cairns. This showed a bi spinous diameter of 8.5 cm. This is a critical measurement for vaginal childbirth, and all the doctors agree that any children she bears should be delivered by Caesarean section. The issue is whether the diameter was reduced as a result of the fracture, or was a pre existing, developmental attribute of her pelvic condition.

15. Before the accident she had worked part time as a check out attendant at the Owl Food Barn. She went back to work about a week after she returned to school. She found the long standing uncomfortable. It was at about that time that she discontinued the use of a sling for her shoulder, and it continued to be uncomfortable for about a year.

16. She completed Year 11. She felt that without her own assessments, she had not scored marks as well as she would have hoped had the accident not happened. She did not return to school for Year 12.

17. By the end of 1989, or early in 1990, she noticed that her left knee ached, and she began to experience a slipping of her kneecap.

18. She began a training course with a Travel Agency, and in 1990 obtained employment as a travel consultant with Just Travel in Canberra.

19. Dr Cairns referred her to Dr Appel, gynaecologist, who examined her on 23 January 1990. She was back to full activity, and was not limping. She complained of some aching in the lower back, pelvis and hips. He examined the pelvimetry X-ray. He thought that the bi spinous measurement was a result of the accident.

20. On 3 March 1990 she complained of low back ache to Dr Reading, and he ordered an X-ray of the lumbo sacral spine, but it did not demonstrate any bony abnormality. In December 1990 he prescribed intermittent Voltaren and back exercises for the low back pain. He prescribed a further course of Voltaren for the persistent back ache on 30 April 1991.

21. On 3 June 1991, Dr Cairns re-examined her. For the first time a doctor recorded a complaint of problems with her left knee. She gave Dr Cairns a history that she first became aware of discomfort in the knee when she was mobilised on crutches, and early in 1990 suffered the first of five dislocations of the kneecap. The episodes were followed by pain, swelling and bruising, which would resolve over a period of a week or so. As time went on, the problem seemed to be increasing. On examination he found positive apprehension and dislocatability of the patella. There was no evidence of ligamentous or meniscal derangement. She had a full range of spinal movement, with tenderness to palpation at the lumbo sacral level. He referred her for physiotherapy and remedial exercises for the left knee and lower back. He arranged further investigations.

22. By July 1991 her low back ache was showing some improvement, with the physiotherapy and exercises. A CT scan organised by Dr Cairns did not show any lumbar disc protrusion. The fractured clavicle had completely settled.

23. The knee did not stabilise, and on 26 November 1991 Dr Cairns operated under general anaesthetic to realign the patella and stabilise the knee. She was in hospital for five or six days after the operation, during which time her leg was attached to a machine which moved the knee joint constantly for about 23 hours a day. She was discharged on crutches, with a knee brace on the leg, and had a period of recuperation at home, again being cared for by her mother. She wore the brace for about eight weeks.

24. At the time of her surgery she had been working in three jobs, two of them being as a part time retail sales assistant. She found the constant standing tiring when she returned to work after the operation, and was able to return only to two of her three jobs. Her position at Echo Clothes was filled while she was off work for the operation. She was not able to resume there till May 1992. The knee operation has left a scar on her knee. There is still a screw in the tibia, below the knee. She underwent intensive physiotherapy at the Sports Medicine Centre until February 1992.

25. Dr Reading recorded a prescription of Voltaren for low back pain in February 1992, and a painful right shoulder in April 1992. In October 1992 she complained of a painful left neck and shoulder over the previous day, which Dr Reading attributed to netball, and not to the accident.

26. Dr Cairns reviewed her on 19 November 1992. The knee surgery had been successful. The patella was stable, but there was some aching in cold weather. There was tenderness over the shin at the operation site. There was only minor aching at the right shoulder. Her major ongoing problem was the low back ache, which came on daily, was aggravated by work, and for which she took Voltaren, with some relief. His impression was that the back ache did not interfere with her lifestyle or leisure activities in any particular way.

27. On examination he observed a pelvic tilt, but no measurable leg length discrepancy. The pelvic asymmetry did however produce a functional leg length discrepancy of about 1 cm. There was a full range of movement, with some tenderness at the lumbo sacral region.

28. He thought that the plaintiff might well require ongoing medical and physio therapeutic treatment for the low back disability, and should avoid activities involving bending and lifting. It is a possibility that the back may deteriorate to a state where surgery would be indicated. In the longer term she might develop arthrosis at the patello femoral joint. She is fit for all forms of occupation of a light manual nature.

29. Her solicitor sought a medico legal opinion from Dr R McEwin, of Sydney, who saw her in May 1993. She was studying Marketing and Management at the Technical College. Dr McEwin's report states that she "apparently did not have a seat belt on as far as she knows", but added, "Her comments on the seat belt and the head restraint are made in retrospect from what she has been told as she cannot recall the accident."

30. Close textual analysis might reveal some distinctions, but I regard those impressions gained by Dr McEwin as being consistent with my impressions of her evidence about this issue.

31. She also gave him a history that the left knee had been bruised in the accident. He diagnosed the injury to the lumbar spinal area as being musculo ligamentous. He also made a positive diagnosis of a post traumatic stress disorder resulting in anxiety and tremor in the fingers. He recommended review by her orthopedist at annual intervals, and noted that she would require continuing medication for her lumbar pain. His views on her suitability for work were the same as those of Dr Cairns, and he agreed that she should not play sports. Although the soft tissue injury to the lower lumbar spine should recover with time, the plaintiff is more likely than the average person to develop osteoarthritis of the right hip because of the altered pelvic geometry. The same applied to her lumbar spine.

32. He later studied the X-rays in detail, which allowed him to confirm his earlier opinion.

33. On 9 August 1993 Dr Peter Morris, orthopedic surgeon, examined her for the defendant. He reported that she was not wearing a seat belt. His overall impression was that he did not believe that any of her injuries were likely to proceed to further significant joint degeneration or increasing disability. It is a matter of emphasis, and Dr McEwin spoke only of possibility rather than probability, but having heard Dr McEwin give oral evidence, I prefer his views to those of Dr Morris, where they differ.

34. Dr Cairns reviewed her on 23 August 1993. There had been no significant change in her ongoing complaints. He also thought that secondary osteoarthrosis in the knee compartment was a possibility, and that there was a possibility that surgery might be required if her lower back condition deteriorated.

35. Another orthopedic surgeon, Dr Stubbs, also examined her for the defendant on 25 August 1993. He reported that she was wearing a lap seat belt. When he examined her knees he noted maltracking of the right patella, so that he thought the basic problem in her knee was inherent. He did comment, however, that the accident may have exacerbated it to the point of becoming symptomatic. He could not find evidence of ongoing physical incapacity to any significant degree. He could not even see that the inter spinous distance shown on the pelvimetry would cause any problems. Of course, I prefer the opinions of the gynaecologists on that matter, and I also prefer the views of Dr Cairns and Dr McEwin on the orthopedic aspect.

36. Late in 1993 the plaintiff, having completed her TAFE course, obtained employment as a sales consultant with a plumbing firm, and she was later promoted to manage the showroom at that establishment.

37. On 23 February 1994 she was examined for the defendant by Dr Heaton, gynaecologist. Dr Heaton examined the X-rays. He reported that they demonstrated fractures involving both pubic rami with a widening and disruption of the pubic symphysis. The later X-rays showed that the pelvic fractures had healed quite well, and there is minimal callus formation at the site of the previous fracture. The widened symphysis appeared to have narrowed to an acceptable width. By palpation he found the anterior superior iliac spine to be almost 2 cm higher than that on the right, which would explain the apparent leg length inequality.

38. He agreed with the pelvimetry, and that the bi-ischial diameter of 8.5 cm meant that she should have any children delivered by Caesarean section, but he was of the opinion that the narrowed diameter was congenital, not caused by the fractures.

39. He conceded that she would have pain in the area of the healed fractures of the pubic rami, but the pelvis in that area should be stable. Although the pubic symphysis had knitted well, it would become unstable during pregnancy, especially in the last six weeks, as it does in most women. She would experience increased tenderness over the symphysis, but this could be aided in pregnancy by wearing a surgical corset to prevent excess mobility of the joint.

40. He agreed that her residual lower back pain would make her unsuitable for any employment which might require lifting or frequent bending, such as nursing, for example.

41. Dr Reading, in a subsequent report, commented that the only way to be sure that the reduced pelvic measurement was congenital rather than caused by the accident, would be to have compared a previous pelvimetry study, which obviously has not been done. He thought that on the basis of the fractures it is more probable that it was due to the accident.

42. Finally, Dr McEwin re examined the plaintiff on 20 April 1994. There had been no major change in her symptoms since his previous examination in May 1993. She had changed medication from Voltaren to Naprosyn, as the Voltaren caused so much indigestion. His report of her complaints to him is a useful summary of her present complaints:

"She is presently working at Southern Plumbing Supplies as a
Sales Consultant. She sells bathroom fittings. This is an
ideal job for her as it involves some sitting, some standing and
some walking and a good balance of these activities so that she
can ease her aching in parts described below.
She thinks her back pain is worse than when I saw her last. It
is at the L4-5 level which she indicates with her fingers. From
the midline it spreads laterally to the muscles out 10 cm or so.
It does not spread to the lower limbs. The back pain is not
constant, but is always present at the end of the day. It is
worse with any physical activity, particularly lifting, flexing
forward or working in a flexed forward position, sitting for
more than about 20 minutes and driving the car for the same
time. It is also worse with standing for 20 or 30 minutes. It
is worse in cold weather.
She can get relief of her back pain by altering her position, by
stretching exercises and by lying down on a hard bed which she
has, and also with Naprosyn.
Her left knee aches in cold weather. It is still sore so she
cannot kneel on it. This is because of the tenderness of the
tibial tuberosity. Her walking is, she thinks, normal, but she
cannot run. She cannot play netball and tennis as she used to
do as these jar her knee too much. She has returned to a
gymnasium where her activity is mostly swimming. She swims
about 300 metres each time she goes to the gym.
She says she still has swelling of both legs, both at the ankles
and feet and around the left knee, particularly noticeable at
the end of the day. It is worse if she has been standing for
long during the day.
The deformity of the clavicle is unaltered. It is a
displacement anteriorly of the medial part of the clavicle and
forms a protruding bony mass which would be obvious if it were
not covered by her dress as is the case today. I consider this
to be a cosmetic defect in a young woman of this age as is the
surgical scar on the lateral side of the left knee.
She has no symptoms from her pelvis.
Her blood pressure has been found raised by her family doctor
(but was normal today).
She appears to have no symptoms of significance from the
concussion she suffered. She thinks there may be a minimal
reduction in her memory but her concentration and arithmetic
capacity remain normal.
She is still anxious as a passenger but feels comfortable
driving herself. Her anxiety as a passenger is marked and she
would not drive with a person whose driving she did not know was
responsible and cautious. Her anxiety as a passenger has not
improved. It is worse in small cars. She does not now have
nightmares or "reliving" of the accident. She thinks this is
partly because she cannot remember the accident because of her
concussion.
Her right shoulder aches in cold weather. Sometimes it wakes
her at night as does her back pain. She has a sense of
frustration in the limitation of activities due to her injuries.
One example was housekeeping in a hotel. She realised that the
range of occupations was limited by her injuries and this still
applies. She also enjoyed her sport very much and misses this.
She says she is restricted in her social activities as her
symptoms of aching are worse at the end of the day and reduce
her enthusiasm for social activities in the evenings.
Apart from the above she says her general health is good. Apart
from being in a motor car her nervous health is good and she
regards herself as a placid person."

43. Counsel for the defendant submitted that the plaintiff's evidence suffered from a lack of frankness, demonstrated by the history that she gave to various doctors, as compared with her evidence.

44. I do not think that the criticism was justified. I find it useful constantly to bear in mind, firstly, the purpose for which doctors take a history, and, secondly, the extent to which they are accustomed to record what they are told with meticulous particularity. It is especially true of treating doctors that they are not detectives investigating a fraud. Even doctors who examine injured people for a defendant are usually more interested in the type of trauma suffered than the mechanics by which it was caused.

45. In particular, so far as this plaintiff is concerned, I think she gave her evidence frankly and moderately. There was no attempt at exaggeration. If anything, she played down the significance, for example, of the bump on the collar bone and the scar on her leg.

46. I accept her evidence that she has consistently told doctors that she could not remember wearing a seat belt, although she usually did so. Different doctors may have recorded differently the impression left on them by such a statement, but that does not reflect adversely on her credit in this case, to my mind.

47. I also accept her evidence that she has not played a game of netball since the accident, though she may have participated in warming up activities when she went to watch friends playing.

48. In the same context I am not moved by the absence of a recorded complaint about her left knee before June 1991 to conclude that the knee was not injured in the accident. If both her knees were inherently unstable, as Dr Stubbs suggested, I think that the incident that made her left knee symptomatic was much more likely to have been the accident than any strain suffered on the dance floor. I accept her evidence that the knee had been displaying symptoms well before that incident, and that those symptoms resulted from the accident. If what she said to Dr Stubbs was that her left knee was dislocated in the accident, that may not have been an accurate description of the aetiology, such as would be recounted by an orthopedic surgeon, but I think that is not right to describe such a description, given by a lay person after what she had been through, as a lie.

49. Dr Reading gave evidence and was cross-examined. When asked whether the wearing of a lap seat belt might have reduced the plaintiff's injuries, he answered that he was not an expert on seat belts, but he would have thought that a straight lap seat belt would put a lot more pressure on the pelvic region, whereas a lap and sash would tend to diffuse the impact. He also thought that had she not been wearing any seat belt at all she would have had a lot more injuries, and they would have been to different parts of her body.

50. He was the doctor who saw her most often, and he commented that it was possible that her knee symptoms were mentioned, but they may well have been of minor significance and he might not have noted them. It is significant to me that when she did complain about her knee in early 1991, she did not say that she fell while disco dancing, causing her knee to dislocate, but that her knee dislocated, causing her to fall. There has also never been any complaint about the other knee. Dr Reading's experience and qualifications that are additional to those of a general practitioner are in the area of obstetrics and gynaecology, and in orthopedic matters he deferred to the opinion of Dr Cairns.

51. I accept Dr Reading's opinion that the complaint of a painful left neck was related to netball activity, of the type that she described, and not to the motor car accident, but the reason she does not play tennis or netball is the state of her lower back and knee, not her neck.

52. In cross-examination Dr Reading accepted the possibility that the narrowing of the bi spinous process could have been congenital, but he adhered to his opinion that it was more probably the accident that caused the narrowing.

53. Dr McEwin gave evidence orally. He has specialist qualifications as a surgeon, as a physician, and as a rehabilitation consultant. He believed that the general damage to the pelvis was sufficient to cause the diminution in the inter spinous diameter.

54. He also thought that the injury to the pelvis was consistent with her having worn a lap type seat belt. If she had not been wearing a seat belt he would have expected more severe injuries to the knees and pelvis, and to the head and face.

55. When Counsel for the defendant put to him Dr Heaton's hypothesis that the narrowing of the bi spinous diameter was congenital, he said that it was not an area in which he claimed to be an expert.

56. Dr Cairns gave evidence. He also had treated the plaintiff by surgery on her feet, not related to the accident. She seemed to him to be a person who tended to play down her symptoms rather than act them up.

57. On the basis of the history he was given he accepted a relationship between the accident and the knee injury. That history was that before the car accident she had no previous difficulties with either of her knees. After the accident she had symptoms in the left knee, which eventually led to a dislocation while disco dancing and then subsequent recurrent dislocations. I think that history is accurate. He also did not regard the maltracking of the right patella as significant. In addition, he was her treating orthopedic specialist. I accept Dr Cairns' opinion that the knee operation was related to the accident.

58. He was not asked to comment on the pelvic measurements.

59. Dr Appel, a specialist obstetrician and gynaecologist, gave evidence for the plaintiff.

60. The pelvic structure is not simply a single bone. The bone across the back, the sacrum, has the two ilia attached to it by connective tissue at the sacro iliac joints, and the ilia are joined together by connecting tissue at the front by the symphysis pubis.

61. It is therefore possible for the ilia, or either one of them, to hinge, as it were, on the ligaments joining the ilia to the sacrum on each side.

62. Dr Appel thought that because the pubic rami were disrupted, as the fractures healed at that site the pelvis hinged on each side and caused the ischial spines to be closer together. His opinion was not affected by the distance of the fractures from the spinous processes. He thought that a congenital defect was an unlikely explanation of the unusually small diameter between the ischial spines, although only a previous X-ray could demonstrate the matter.

63. He also thought that the injury to the pelvis was consistent with the plaintiff's having worn a lap type seat belt at the time of the accident.

64. Dr Heaton gave evidence and was cross-examined. He demonstrated the injuries and mechanics of the pelvic structure with a plastic model as well as on the X-rays. He is highly qualified and experienced as an obstetrician and gynaecologist. In his opinion the distance of the fracture sites from the ischial spines, and the structure of the pelvic bones, indicated that the injury was not likely to have caused a reduction in the distance between the spines. To do that would have required a compression type force, from the sides towards the middle, causing fractures at parts of the pelvis some distance away from the rami, and of a far more serious type.

65. Dr Heaton did not think it possible that as the fractures of the rami healed and the widening that had been caused at the symphysis pubis narrowed, the ilia hinged at the sacro iliac joints in such a way as to shorten the distance between the ischial spines. He would have expected some displacement of the right side if that had happened, and the X-rays gave an appearance of reasonable symmetry.

66. He would also have expected her to have had different injuries had she been wearing a properly adjusted lap type seat belt. The pelvic injury could also possibly have been less had she been wearing a properly adjusted seat belt.

67. There is nothing in the family history to make it more likely that the plaintiff was one of the small part of the female population with a developmental narrowing of the ischial diameter. I do not regard that as being very significant as no relevant investigation was carried out.

68. There is no other pre accident evidence that the condition is developmental. The hypothesis depends upon the opinion of Dr Heaton. Dr Appel holds the opposite opinion. The only other doctor with expertise in the area is Dr Reading. He agrees with Dr Appel. Dr Cairns is not a gynaecologist, but he does know a lot about bones, and he expected in June 1989 that the fractures would cause gynaecological problems.

69. I find that Dr Appel's explanation is the more likely. The mechanism by which he suggested that the narrowing was caused seems likely to me, and Dr Heaton's explanation did not really exclude it, to my mind. Looking at the X-rays in the light of the evidence and demonstrations by the doctors, I do not see that the hinging effect as the fractured rami healed, out of position, is excluded.

70. I am satisfied on the balance of probabilities that the narrowing of the ischial diameter was the result of the accident.

71. It is not a minor matter for a young woman to be required to deliver children by Caesarean section. Modern medicine may have reduced the risks and minimised the trauma to an acceptable degree, but what is physically involved is surgery, instead of a natural process, with its attendant risks from anaesthetic and infection. The emotional and psychological context of the birth is radically changed, though some mothers are affected by that to a greater or lesser extent than others. Recovery is usually more painful and takes longer. There is scarring left as a result of the procedure, and muscles are weakened.

72. In summary therefore the plaintiff sustained in a violent collision a fracture to the pelvis and the right clavicle, an injury to her knee, soft tissue injury to the lower back and miscellaneous bruising.

73. The fracture to the clavicle has healed well, but leaving a discernible protrusion.

74. The fracture to the pelvis has healed, but the result is that she will be required to deliver children by Caesarean section. The position in which the healing has taken place results in a functional leg shortening, which affects her lower back. There is a possibility, though it is not a high one, that she may require surgery on her lower back. She will always have pain and discomfort in the lower back.

75. A congenital defect in the knee, which was not symptomatic before the accident, was made symptomatic by it, and she was required to undergo surgery to it. She is left with restricted mobility and some discomfort, and a visible scar on the leg. There is an increased risk of osteoarthrosis in the knee and a possibility that she may require surgery.

76. Her sporting activities are greatly restricted. Her social activities are restricted, but less so.

77. Some forms of employment are not open to her. Her intelligence and presentation are such that those forms of employment are not the ones she would be likely to choose, even had the accident not happened. But I think that the restriction should be reflected in the award for general damages, even if there is no quantifiable loss of future income earning capacity as a separate head of damage.

78. She is only 21 years of age. She has a normal life expectancy. Her present disabilities will probably not improve, but may well worsen.

79. For her pain and suffering, loss of amenity and restriction of capacity I award $90,000.00, of which $35,000.00 would relate to the future.

80. For interest on the past component I award $5,700.00.

81. The past costs of treatment, including the knee operation, are $20,928.00. There is no evidence on which I could make an award of interest on that head of damage.

82. The type of injury was such that I find that the plaintiff needed the support and care of her parents. Her mother's description of the need for her additional help while her daughter was in hospital, because the nursing staff were over extended, has the ring of truth to me. The time spent in caring for the plaintiff and in travelling expenses was not in issue. The plaintiff's needs required the parents to incur the expense of cancelling their holiday, but that was not an expense incurred by the plaintiff. Nevertheless it was an expense reasonably and necessarily incurred in order that the plaintiff be provided with the care that she needed, namely the care of her mother. I allow $11,000.00 for the value of the services provided by her mother and travelling expenses, which is rounded result of the items set out at paragraph F of the Statement of Particulars, together with $2,298.00 for the expenses incurred in cancelling the holiday. Interest on that component was not claimed, and the question was not argued whether it may be awarded.

83. She will require regular review by an orthopedic surgeon. The amount claimed in the particulars is calculated as if the expense were to be incurred weekly, whereas it will be an annual expense. I allow $1,500.00 for the cost of review.

84. She will probably require physiotherapy in future, but I doubt that it will cost $250.00 a year for the rest of her life. As a matter of discretionary judgment I allow $3,000.00 for that item.

85. The claim for future medication is not contested at about $4,000.00.

86. The quantum of the claim for the increased cost of Caesarean section is not contested, and appears moderate to me, at $7,150.00.

87. The wage loss, in the light of the findings I have made about the knee, is not contested, and totals $4,558.00. That loss was complete by 25 May 1992. I allow $1,200.00 interest on that component.

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

General damage $90,000.00
Interest $5,700.00
Past treatment costs $20,928.00
Mother's services $11,000.00
Cancelled holiday $2,298.00
Orthopedic review $1,500.00
Future physiotherapy $3,000.00
Future medication $4,000.00
Increased costs of childbirth $7,150.00
Wage loss $4,558.00
Interest $1,200.00
Total $151,326.00

89. Bearing in mind her age, what she has suffered in the past, and what the future promises, I think that as a global sum that amount is appropriate compensation, even if I have been too generous with some items or too niggardly with others.

90. The accident happened at the intersection of Hindmarsh Drive and Namatjira Drive, which is controlled by traffic lights. Hindmarsh Drive runs East-West, and Namatjira Drive North-South.

91. Namatjira Drive consists of two carriageways, divided by a median strip, with two lanes in each carriageway.

92. Hindmarsh Drive is also a highway divided by a median strip. For traffic travelling West there are two lanes, until it nears the intersection, where there is one additional lane for traffic to turn left and another for traffic to turn right into Namatjira Drive.

93. The defendant, Constable Drake, was driving a police vehicle West in Hindmarsh Drive. The plaintiff was a passenger in a utility which her sister was driving North in Namatjira Drive. The weather was fine, the roadway was dry bitumen in good condition. The intersection was well lit by overhead lighting.

94. Mr Smith was driving a Ford sedan North in Namatjira Drive. His wife was beside him as a passenger. He came to a stop in obedience to a red light at the intersection. The utility in which the plaintiff was a passenger pulled up alongside and to the right of his car. The lights changed to green. He drove into the intersection. He looked to the right before he did so, but did not notice anything because the utility was in the way. He intended to drive through the intersection to continue North. He heard a loud bang and his car was jolted sideways. The Mazda utility had been driven sideways to collide with his car.

95. He had not seen any vehicle driving West in Hindmarsh Drive before the impact. He had not seen any blue flashing light. He did not hear any siren. He had travelled about one and a half car lengths before the impact.

96. His wife was not paying attention to the traffic lights. She remembered coming to a stop, and hearing another vehicle beside their car, to the right. She remembered their car starting to move off at a slow pace. She heard a very loud bang and felt their car veer to the left. She did not hear any siren.

97. Mr Sands was a passenger in the utility, seated to the left of the plaintiff. The vehicle stopped at a red light, in the lane closest to the median strip. The lights changed to green. Sarah began to drive off. Things happened quickly. He could recall seeing a car coming, with "Police" written on the bonnet. He could not remember the actual impact. He did not hear a siren.

98. He was wearing a lap and sash seat belt. He could not remember whether the plaintiff was wearing one, or whether there was one fitted and available for her to wear.

99. Mr Gadston was driving a Volvo station sedan in an Easterly direction on Hindmarsh Drive. He intended to make a right hand turn into Namatjira Drive.

100. When he arrived at the intersection the arrow controlling the right hand turn was red. He stopped to wait for it to turn green.

101. He saw a vehicle coming in the opposite direction in Hindmarsh Drive, a considerable distance away. He also observed two vehicles come to a standstill in Namatjira Drive, to his right.

102. The vehicle travelling in the opposite direction was travelling fast, at a speed he estimated to be between 100 and 140 kilometres an hour. When it was about 100 metres from the intersection, a blue flashing light appeared on the top of it. At about the same time the two vehicles on his right entered the intersection.

103. The police vehicle braked, but then collided with the utility and pushed it sideways onto the sedan beside it. His estimate of the speed of the police vehicle at impact was between 60 and 80 kilometres an hour.

104. He did not hear the sound of a siren at any time before the impact.

105. Mr Maly was a passenger in Mr Gadston's car, seated behind the driver. After the vehicle halted in obedience to the red arrow he saw the police vehicle approaching, about 500 yards away. Its headlights were on. He saw the blue light come on. He estimated that it was then 60 to 70 metres from the intersection, and that its speed was about 100 to 120 kilometres an hour.

106. At about the same time as the blue light came on he saw the two vehicles move into the intersection from his right. The police vehicle braked. The collision occurred. He estimated the speed of the police vehicle on impact at 45 to 50 kilometres an hour. The driver's window was down. He did not hear any siren.

107. His wife was seated in the front passenger's seat, beside Mr Gadston. She observed the approaching police vehicle at a distance of about 200 metres. She estimated its speed at about 100 to 140 kilometres an hour. She saw the blue light come on at a distance she estimated to be about 100 metres from the intersection. As the blue light came on the two vehicles moved from her right into the intersection. The police car braked. The collision occurred. She estimated the speed of the police vehicle just before the impact at 80 to 100 kilometres an hour. She did not hear a siren at any stage.

108. The accident was investigated by Sergeant Dwyer, who was then the Accident Squad Sergeant. He arranged for the photographs to be taken that are Exhibit G. He observed skid marks on the road leading to the police vehicle. They commenced at a point about 23 metres to the East of the stop line in respect of the lights that had been facing the police car. They extended in a straight line, one for 33.2 metres and one for 32.8 metres. They then diverged at an angle, to the right as the police car had been travelling, one for a further 6 metres, the other for a further 4 metres.

109. By the use of a template devised at the Traffic Institute at North Western University in Illinois, USA, Sergeant Dwyer estimated that at the time the brakes were applied the police vehicle was travelling at a speed of at least 77 kilometres an hour. That calculation assumed that the vehicle came to a stop as the result of braking, without any impact, at the end of the straight skid marks.

110. I do not think that the template enables me to determine the speed of the vehicle when it began to brake with any real accuracy, but the calculations based on it are consistent with the observations of the independent lay witnesses in Mr Gadston's car.

111. Sergeant Dwyer prepared the accident report form. He coded it as showing that the plaintiff was not wearing a seat belt. He thought, but could not demonstrate, that she would have been the source of his information about the seat belt. There was nothing about the question in the statement that he took from her.

112. A driver of a vehicle stopped at the lights, as the plaintiff's sister was before the accident, would have a clear and unobstructed view of traffic approaching in a Westerly direction, as the police car was, for a distance of 300 to 400 metres.

113. The defendant, Constable Drake, gave evidence that she joined the police force in January 1988.

114. On 21 April 1989 she was on duty in a police car with Constable Corrigan. At about 11.30 pm they received a radio message, as a result of which they set out to attend an accident, with injuries, at BP Service Station in Brierly Street, Weston.

115. I am satisfied that the information that they received entitled them to treat the situation as an emergency. She was therefore entitled to exceed posted speed limits and to disobey traffic lights in order to get to the scene of the accident as soon as practicable. She was still under a duty, however, to exercise reasonable care for the safety of other road users.

116. She drove along Hindmarsh Drive in a Westerly direction. She passed the crest of a rise which is about 500 metres to the East of the intersection with Namatjira Drive. As she did so the lights at the intersection appeared green. She estimated her speed at 80 to 100 kilometres an hour. She said in evidence that her partner, Constable Corrigan, then turned on the flashing blue light and the siren. He did so before she saw the lights at the intersection turn to orange. She could see the vehicles stopped at the lights. When the lights turned to orange she slowed. When they turned red she was still some distance back from the intersection. The vehicles at the lights did not move. She assumed they had seen her approaching, and accelerated. When she got closer to the intersection she saw the vehicles move from her left into the intersection. She jammed on the brakes. The collision occurred.

117. After the collision the blue light was still operating, she claimed.

118. In cross-examination she conceded that her ability to estimate speeds and distances was not highly developed at the time of the accident, and she was prepared to defer to Constable Corrigan's estimates.

119. When she had been questioned by Sergeant Dwyer she had been asked, "When was the blue light and siren activated on the police car?" She had answered, "About 50 metres back from the Namatjira Drive intersection." When she had given evidence in the Magistrates Court she was asked the same question. She answered, "Around about 200 metres back from the intersection."

120. She insisted during cross-examination that both the siren and the flashing light were on over about 500 metres.

121. Constable Corrigan gave evidence. He confirmed that he was a passenger in the police vehicle being driven by Constable Drake, and that they responded to a police radio message to attend the scene of an accident, with injuries, at Weston.

122. He said that she was driving along Hindmarsh Drive at 80 kilometres an hour. The crest to the East of the Namatjira Drive intersection is about 500 metres from the intersection. Before reaching the crest, traffic had been light, and the lights at all the intersections had been green, so that neither the siren nor the flashing light was being activated.

123. His evidence in chief was that as they came over the crest he could see that the lights at the intersection ahead were green. He pushed the toggle switch to activate the flashing light and the siren. He then decided that the siren was not necessary and switched the siren off. He was something over 400 metres from the intersection when he turned the siren off. The traffic lights were still green. The siren was not turned on again before the impact.

124. He said the police car slowed when the traffic lights turned to amber. At about 20 to 30 metres from the intersection the brakes were applied hard. The collision then took place.

125. When giving evidence in the Magistrates Court Constable Corrigan had been asked at what distance from the intersection he had activated the blue light. He had answered, "Approximately 150 metres".

126. On 1 May 1989, when he was being interviewed by Sergeant Dwyer, he was asked, "You told me that you turned the siren off on the police car when you were about 30 metres back from the intersection, is that correct?" and he answered, "To the best of my memory, yes."

127. The defendant issued a Third Party Notice claiming contribution from Sarah Royal, the driver of the utility in which the plaintiff was a passenger. Her Counsel did not call her to give evidence, though there was nothing to suggest that she was not available to do so.

128. I find the evidence of Constable Drake and Constable Corrigan not only inconsistent but inherently improbable. Each has given versions of some substantial details different from what each now says. If there was no need to activate the lights or the siren when they were approaching any of the previous intersections, why would either be needed when they came over the crest and saw the lights green ahead of them?

129. On the basis of the evidence of Mr Gadston and his passengers and of Mr and Mrs Smith I am satisfied that the siren was not sounded at any time.

130. The impression conveyed by the combined evidence of all of those independent witnesses also accords with what appears to me to be inherently probable.

131. That is that as she drove over the crest and towards the intersection Constable Drake had in mind that they were proceeding to an emergency. Her speed was more likely to have been 100 kilometres an hour than 80. The lights facing her at first were green. Neither the siren nor the blue light was activated during the first part of their travel down towards the intersection.

132. When she saw the light change to amber it is possible that she began to slow down, as she claims, but not to the extent of preparing to stop at the lights. She was aware of the traffic waiting at the red light. When the light turned red against her she decided, or she had already decided, to continue through the intersection. Constable Corrigan then activated the flashing light, but not the siren. Her speed was then at least 80 kilometres an hour. She then saw the utility move into her path and jammed on the brakes. At her then speed and in the distance available, it was not possible to avoid the collision.

133. Despite the emergency, she was still under a duty to take reasonable care for the occupants of the utility. She did not do so. If the decision to proceed through the red light was justified in the circumstances, there was no reason why she could not have reduced her speed considerably, say to 20 kilometres an hour, activated both the siren and the flashing light earlier, and kept a very close watch on the other vehicle in case the driver had not seen her approach.

134. It is obvious to me that she approached and entered the intersection at too high a speed, and without giving sufficient warning.

135. There will therefore be judgment for the plaintiff in her action against the defendants.

136. There is no direct evidence from any witness who looked and saw that the plaintiff was not wearing a seat belt. The plaintiff can not now, and, I think, never has been able to, remember whether she was wearing one or not, no matter what various doctors may have recorded. The contemporaneous record made by Sergeant Dwyer, however, is significant, even though he can not remember that it was the plaintiff who gave him the information that she was not wearing a seat belt adjusted.

137. The medical evidence is equivocal. From a lay point of view I would expect that the plaintiff could well have suffered the pelvic injury that she did if she was wearing a seat belt. Because the impact was from the side, and the utility was not moving forward very fast, there were not the sort of injuries that one would expect to result from a failure to wear a seat belt.

138. Looking at the whole of the evidence, I am not persuaded that the plaintiff did not have her seat belt on.

139. Even if I were wrong on that issue, there are two other important matters relevant to the defence of contributory negligence.

140. The first is that the evidence does not positively persuade me that there was available to the plaintiff a seat belt in proper working order.

141. I do not think that it is necessary that evidence on that issue should always be the same in every case when this defence is raised. There are many combinations of circumstances from which an inference could be drawn about the issue. I am prepared to infer that there was some sort of lap belt available, because the plaintiff said she usually wore one. But there is no other evidence from which I am moved to infer that it was in proper working order.

142. The second matter is, however, to my mind the more conclusive. It is that I am prepared to hold on the evidence that there was no injury that she received which she would not have received had she been wearing a lap type belt, and that the injuries that she did receive were not made more serious by her failure to do so. If she had been wearing such a belt, she could well have received, in the type of collision that occurred, an injury to her pelvis, collar bone and knee.

143. The defence of contributory negligence is not made out, and there will be no reduction in her damages on that account.

144. I direct the entry of judgment for the plaintiff against the defendants in the sum of $151,326.00.

145. Unless Counsel wish to be heard I would order the defendants to pay the plaintiff's costs, including the costs that were reserved at the hearings for directions on 11 February 1994 and 25 February 1994.

146. In the proceedings for contribution by the defendants against the third party, the question arises of the inferences that are available, and which may be the more readily drawn because of her failure to give evidence, about her conduct in driving into the path of the approaching police car.

147. She had stopped in obedience to a red light. When the light turned green she began to drive off. I could infer that she did not look to her right, or that if she did look, she did not look very carefully.

148. At what stage should she have looked, and would it have made any difference if she had done so?

149. A person is not entitled to drive into an intersection, even with a green light, if there are circumstances which should make the person aware that it is dangerous to do so.

150. The circumstances of this case are that if Sarah Royal had looked, while the light was still red against her, she might have seen the police car approaching down the hill. But it was not then displaying a flashing light, nor was there any noise of a siren.

151. She was entitled to look to the front again, to watch for the light to turn green.

152. By the time the light turned green to her, it had been amber for Constable Drake, and then red, for a couple of seconds.

153. It is probable that there was some delay from the time the light turned to amber to the time Constable Corrigan turned on the flashing light.

154. The police car was travelling at a speed of over 80 kilometres an hour. That is of the order of 25 metres a second.

155. Witnesses put the distance from the intersection at which the blue light came on at 100 metres (Mrs Maly), 60 to 70 metres (Mr Maly), and 100 metres (Mr Gadston).

156. I also think it likely that, taking into account reaction time, Constable Drake's brakes did not operate heavily enough to cause the skid marks until a short time after Constable Corrigan operated the blue light.

157. The time for which the blue light was flashing before the police car entered the intersection was, it seems probable to me, of the order of less than 4 seconds.

158. As Mrs Maly said, it all happened very fast.

159. There was no reason why Sarah Royal should have kept watching the police car to see whether it might turn on its blue light.

160. The time for which it was on was short. For part of that time she had been travelling slowly forward in compliance with the green light. The time for which the blue light was flashing before she began to move off must therefore have been less than 4 seconds.

161. I am not persuaded that the circumstances were such as to alert her to the possibility of an accident if she were to drive off in compliance with the green light, whether she was or had been looking to her right at a time when she would be expected to do so.

162. There will therefore be judgment for the third party against the defendants in the proceedings for contribution.

163. I order the defendants to pay the third party's costs.