Nash v Cripps [2001] ACTSC 80 (10 August 2001)

Last Updated: 11 June 2002

Nicole Michelle Nash v Jeannine Cripps [2001] ACTSC 80 (10 August 2001)

CATCHWORDS

DAMAGES -Motor vehicle accident - Soft tissue injury - Exaggeration of symptoms - Contributory negligence.

Griffiths v Kerkemeyer (1977) 193 LCR 161

Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49

Purcell v Watson (1979) 26 ALR 235

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642

Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424

No. SC 475 of 1999

Coram: Master T Connolly

Supreme Court of the ACT

Date: 10 August 2001

IN THE SUPREME COURT OF THE )

) No. SC 475 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: NICOLE MICHELLE NASH

Plaintiff

AND: JEANNINE CRIPPS

Defendant

ORDER

Coram: Master T. Connolly

Date: 10 August 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $22,373.55.

2. The parties to be hard on costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on the morning of 26 November 1998 at the intersection of Companion Crescent and Kingsford Smith Drive at Flynn in the Australian Capital Territory. Kingsford Smith Drive is a major divided road with two carriageways in either direction. Companion Crescent is a suburban road, with one lane in each direction and no medium strip, and it forms a T intersection with Kingsford Smith Drive. Access from Companion Crescent to Kingsford Smith Drive is controlled by a Give Way sign. For vehicles turning right from Companion Crescent into Kingsford Smith Drive and intending to travel in a generally southerly direction, there is an area within the central medium strip area where they can wait until it is safe to enter the traffic flow after safely negotiating northerly bound traffic. A chart map of the accident scene was prepared by the plaintiff and tendered as exhibit B, and was agreed by all sides to generally represent the accident scene.

2. It is the plaintiff's case that she came to a stop at the give way sign in Companion Crescent, and proceeded to make a right hand turn when it was safe to do so as no traffic was proceeding in the northbound lane closest to her. She says that a car was proceeding in a southerly direction along Kingsford Smith Drive, not in the slip lane where vehicles turning right from Kingsford Smith Drive into Companion Crescent would be. She says that as she was in the central median strip area, this car, being an EH Holden, suddenly and at considerable speed attempted to make a right hand turn, but overshot the designated turning lane, and collided with the plaintiff. The plaintiff says that the point of impact occurred when she was in her correct lane in the right hand turn lane in the centre of the median strip, and the defendant had veered at speed across from her correct right hand turning lane, in effect overshooting across the marked divided area and coming into the incorrect plaintiff's lane. On this case the accident would be the fault of the defendant.

3. The defendant's case is that the accident occurred when the plaintiff, who had been stationary at the give way sign, suddenly and without warning proceeded out from the give way sign and directly into the path of the defendant, who was making a controlled right hand turn from her correct lane from Kingsford Smith Drive into Companion Crescent. The impact occurred in about the middle of the northbound lanes at Kingsford Smith Drive. On this case the accident would be predominantly the fault of the plaintiff. The defendant acknowledged, however, that after she noted the plaintiff stationary at the give way sign her attention was directed solely to oncoming northbound traffic, and as she proceeded across the northbound lanes when it was safe to do so she did not check to see whether the plaintiff was still safely stationary, assuming that she would obey the give way sign. Counsel for the plaintiff urged as an alternative submission that, if I found that the facts had occurred as described by the defendant, I would still find a degree of negligence on the part of the defendant, as a driver must always check to see if traffic is obeying any road signs. As Gibbs J noted in Purcell v Watson (1979) 26 ALR 235 at 240:

"The assumption that other users of the highway will act reasonably and safely is so often falsified that it cannot be said as a general rule that a user of a highway can reasonably act on that assumption."

4. A similar proposition is found in Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at 427 where the Full Court (Barwick CJ, McTiernan, Kitto Taylor and Owen J) said that:

"reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching form his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected."

5. The central factual issue in determining liability in this case is thus the finding as to the circumstances of the accident. For the plaintiff to succeed on her primary submission she must establish, on the balance of probabilities, that the accident occurred in the circumstances she described. There were no direct independent witnesses to the accident, although the defendant's partner was with her in the car, and gave evidence which supports the defendant's version of events. No police report was tendered, and I was told from the bar table that the accident was investigated by Constable Conway, who had in fact prepared two reports, one favouring each version of events. Constable Conway is presently serving a term of imprisonment, and counsel agreed that no purpose would be served in seeking to tender the conflicting reports and seeking to cross examine the police officer.

6. There was no compelling indirect evidence to support either version of events. The plaintiff says that there was glass from her front passenger window on the roadway in the median strip at the point where she says the impact occurred. She says this must have come from her car at the point of impact. Members of her family who attended the accident scene after the collision also say they saw glass there.

7. The defendant says that, after the impact, the plaintiff continued and pulled to a stop in the median strip, at a point out of the way of northbound traffic on busy Kingsford Smith Drive, and the defendants vehicle continued and pulled to a stop on Companion Crescent, similarly out of the way of traffic. There is thus general agreement that the plaintiff's car was, at least at some point after the accident, at the point where the plaintiff says glass was on the road.

8. The defendant's husband says that there was glass on the road all the way across the intersection, from the point where he says the impact occurred to the point where the plaintiff's car came to a halt. The defendant also gave evidence, supported by her partner, that after the police attended a junior officer spoke to her about her car not having a number plate, and that when it was observed that this was so, her number plate was found in the middle of Kingsford Smith Drive amongst glass and debris at the point she says the accident occurred.

9. The evidence as to debris does not, it seems to me, assist me either way in favouring either version of events to the exclusion of the other on the balance of probabilities.

10. An independent witness, Ms Primrose, arrived on the scene some time after the collision. She said that she found the plaintiff's vehicle in the median strip, at the point where the plaintiff says the impact occurred. This does not however help the plaintiff's case, it seems to me, as it is common ground that that is where the car was after the accident. I should observe that Ms Primrose, who is a registered nurse, stopped at the accident with a view to rendering what assistance she could if any persons were injured, and she is to be commended for this.

11. I am thus left with the evidence of the plaintiff and the evidence of the defendant and her husband. I should observe at the outset that both the plaintiff and defendant have given consistent versions of their description of the accident from their first reported statements to police or insurers.

12. The plaintiff was on her way to work on the morning of the accident, and said that she was in plenty of time, and was not rushing. The defendant was also going to work, but was proceeding first to drop of her then fourteen month old daughter at her family day care placement, which was situated off Companion Crescent. She was in the back of the vehicle in an appropriate child restraining seat. She also said that she was in no hurry.

13. The defendant and her husband impressed me as giving honest evidence, and the defendant made the point in her evidence that on the plaintiff's version of events she was driving at speed and recklessly, seeking to make a sharp turn and overshooting into the path of an oncoming vehicle, with her infant daughter and husband in the car. Mr McDonogh made the point in his submission that it is not credible that a young mother would drive in such a reckless manner, and that the alternative version, that the plaintiff was simply inadvertent, was inherently more credible.

14. Taking the plaintiff also as an honest witness, I am presented with two credible witnesses giving evidence in support of the defendant's version of events, and one credible witness giving evidence in support of the plaintiff's version of events. On this basis I am not satisfied on the balance of probabilities that I should prefer the plaintiff's version of events to the defendant's version of events, and the plaintiff fails to make out her primary case on liability. I take some comfort in reaching this conclusion, which has been based on all of the witnesses being taken as credible and honest, by my subsequent remarks in relation to assessment of damages, where serious questions have arisen in my mind as to the reliability of aspects of the plaintiff's credibility.

15. I therefore find that the accident occurred in the circumstances described by the defendant, that is, that the defendant was travelling at a safe speed and in her correct turning lane, and that she turned across Kingsford Smith Drive with the intention of entering Companion Crescent when it was safe to do so in respect of cars travelling north along Kingsford Smith Drive. I find that the defendant had observed the plaintiff stationary at the give way sign, and then directed her attention only to oncoming vehicles along Kingsford Smith Drive. She proceeded to cross when she observed no oncoming vehicles, and failed to again check that the plaintiff was still stationary at the give way sign. Although the give way sign required the plaintiff to yield to the defendant as the defendant executed her turn, it is a duty on motorists, as set out in paragraphs 3 and 4 to always take due care, and it is not a sufficient discharge of this duty to assume that another driver will give way when required. I find that the failure to observe what the plaintiff was doing, in driving out across the give way sign and into the defendant's path, did amount to breach of the defendant's duty of care to the plaintiff, and so liability can be made out. The plaintiff, however, on this version is herself contributorily negligent in failing to give way and failing to observe the defendant, and this must sound as a significant reduction of damages. In accordance with the requirements of the apportionment legislation, I will then proceed to assessment of damages, before dealing with the reduction of the award for contributory negligence.

16. The plaintiff was born in Canberra in 1974, and completed her education to Year 12 level at local schools and Copeland College. In 1993 she successfully completed a certificate in hospitality at the Canberra Institute of Technology, and in 1994 she obtained a certificate in travel from the same institution. She worked part time as a student processing photographs at a shopping mall, and in August 1995 found full time employment in her preferred field as a telephone sales consultant with Ansett Australia. She initially worked in general sales, but has since moved to more complex work selling holiday packages to travel agents.

17. After the accident the plaintiff was taken to Calvary Hospital, with a neck collar and complaining of neck pain, as well as shoulder pain. A diagnosis of soft tissue injury was initially made, and the plaintiff was given a certificate for some days off work, and she was referred to her general practitioner. Dr Pahlow, her general practitioner, reported in May 1998 that on presentation on 28 November 1996 the plaintiff had a tender neck and her movements were restricted in all directions. There was also evidence of seat belt bruising. She was given further time off work, but returned to her employment on 11 December 1996 as a telephone sales consultant for Ansett Australia. She lasted a few hours only before complaining of increased neck and back pain, and was off work until July 1997, when she began a graduated return to work regime, starting at three hours three days a week, and gradually increasing to her present regime of six hours of work for four days a week, with Wednesdays off. As the accident occurred when the plaintiff was on her way to work, she has been entitled to workers compensation benefits.

18. The plaintiff was referred for a CT scan in March 1997, which reported a minor diffuse posterior disc bulge without significant thecal impression nor evidence of nerve root impingement at L4/5. No focal disc protrusion was seen.

19. I note however that Dr Keiller, who examined the plaintiff for her solicitors in October 1998, did not consider that this CT showed any abnormality, and also noted a plain x ray of May 1995, that is before the accident, which showed minimal narrowing of the disc space at C4/5 and C 5/6. He diagnosed soft tissue injuries to her neck and lumbar spine, but felt that she continued to be fit for work.

20. Dr McGrath, who first examined the plaintiff in March 1997 and provided rehabilitation treatment for a period, stated in his report of October 1997 that the plaintiff had sustained general soft tissue injuries, but also said that, on the basis of the CT scan, he would "favour the diagnosis of a damaged L4/5 disc". This has not been pleaded, and on all of the medical evidence, I am satisfied that the plaintiff sustained musculo ligamentous injuries and no frank disc injury in the accident.

21. The plaintiff was examined by Dr Jones, a consultant orthopaedic surgeon, for the defendant in January 1998. He concluded that she had sustained soft tissue injuries in the accident which had developed into a chronic pain syndrome. He said that the plaintiff was incapacitated for work beyond her then restricted hours. Dr Craven, a neurosurgeon, examined the plaintiff for the defendant in July 1998 and July 2000. In his July 2000 report he took a history of marked disability and an inability to extend working hours from the present six hours four days a week. He found, however that "it is clear Ms Nash is displaying a marked elaboration of symptoms and what may be reasonably termed as abnormal illness behaviour."

22. Dr Griffith, who examined the plaintiff in January 2001, diagnosed major musculo ligamentous sprain to the cervical and lumbar spine, which had developed into a chronic pain disorder. He observed, however, that the plaintiff "did exhibit some incongruities of straight leg raising suggesting a degree of embellishment", and stated that "her pain is out of all proportion to discernible structural injury."

23. The defendants also tendered two reports obtained from the workers compensation insurer from Professor Hall. He reported in June 1997 that the plaintiff was suffering from ongoing soft tissue injury, and noted significant restrictions in movement. He urged a graduated return to full time duties. In a review of November 1997 he said:

"The symptoms are far in excess of the injury as reported, bearing in mind the normal CT scan. There is no organic explanation for tenderness throughout the entire vertebral column, at least in the absence of a catastrophic lesion, which Ms Nash certainly does not have. Evidence of any improvement, laboured demonstration of her inability to walk or raise either leg more than 10 degrees is simply not credible."

24. Throughout the medical evidence the examining doctors have taken a histories from the plaintiff of extreme restriction of movement and activity. There is repeated references to difficulties in holding a hair brush, for example, and descriptions of a markedly restricted lifestyle due to pain and restriction in movement. In cross examination, however, the plaintiff made a number of concessions that, in my judgment, cast a significant cloud over the history provided by the treating doctors, and thus, on the principle of Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, bring into question the reliability of some of the medical opinions.

25. The plaintiff admitted in cross examination that she has, at least since early 1997, been able to visit night clubs, and has been able to engage in dancing, including dancing into the early hours of the morning. This concession is significant in the light of the statement contained in Professor Hall's November 1997 report that:

"I note in the accompanying information a statement that Ms Nash was seen on a dance floor. The Ms Nash that I examined in the consultation today, could certainly not dance on any floor."

26. In cross examination, at page 50 of the transcript, the following appears:

"So your evidence is that around July of 1997 you were certainly back staying at night clubs and dancing until they closed in the early hours of the morning, but your capacity to work was restricted to 9 hours per week, is that right? It was-yes, that's correct."

27. The plaintiff agreed that she had been dancing to around 3 am, and that to anyone observing her she would not appear disabled. This concession is hard to reconcile with her complaints to examining doctors, and goes to reinforce the doubts expressed by those doctors that she was exaggerating complaints of pain and restriction in movement.

28. She agreed in cross examination that she has a large dog, which she takes for walks five days out of seven for about three kilometres. This was not referred to in any of the doctor's reports on restricted mobility and lifestyle. She acknowledged that over the Christmas holiday period last year she helped her father to load and unload some firewood.

29. No surveillance video material was shown in this case, but the plaintiff said that she was aware that she had been followed on a number of occasions. The transcript shows that the plaintiff tended to acknowledge specific allegations of physical capacity.

30. The plaintiff acknowledged in her evidence in chief that she had been assisting her father to build her new house in Nichols from April 2000. She said she did mostly clean up duties, but also said that sometime she used an electric saw to cut battens, and also nailed sheets of plastic to frames, and did some painting. This was explored in greater depth in cross examination. She acknowledged that between September 1999 and April 2000 she was "almost without exception spending Saturdays and Sundays" at the home site, and also that she tended to be there on Wednesdays, which were her day off at Ansett. It was put to her that between September 1999 and April 2000 "your were involved in paid or unpaid work generally for seven days a week", and she conceded this to be so.

31. The transcript shows a series of acknowledgments of involvement in various tasks, such as stacking bricks onto a brick lifter, painting, shovelling dirt and debris into a wheelbarrow, moving a wheelbarrow, using an electric saw, lifting wood onto a workbench, nailing plastic onto frames, getting up a ladder to pass tools, using scaffolding for painting, and painting, involving lengthy periods with her right arm extended over her shoulder. The painting, she acknowledged, took some weeks, during which she took holidays from her work.

32. None of this information had ever been revealed to doctors, but at the time all of this activity was being undertaken she had told Dr Griffiths that she had difficulty in lifting heavy shopping bags, and holding a hair drier. I am satisfied that the plaintiff has significantly exaggerated the extent of her disabilities, and failed to give a true account of her levels of activity to examining doctors, so that the medical reports on which she relies present a misleading history of the restrictions her accident related soft tissue injuries place on her employability and activities of daily living.

33. She was taken to the report of a psychologist, Mr Evans, tendered in her case, where he had a history, in January 2000, that, "Most physical activity is difficult for Nicole". He also said, "For example, Nicole finds shopping is a problem because it involves walking, it involves standing and bending, all of which aggravate her back". She acknowledged that she did not tell Mr Evans anything about her activities at the building site, which were, at around the time of this visit, most weekends and Wednesdays. In Mr Evans' report, he took a history that, "On Wednesdays, her day off, she is exhausted and in severe discomfort. As a result, she generally spends Wednesday in bed". This statement I find to be quite untrue, and given that it was a history given at a time when the plaintiff was engaged intensely in the building and painting activities, I find that it was a deliberate untruth, being a history provided to an examining expert for the purpose of elevating her claim for damages.

34. The plaintiff further acknowledged that she had been involved in activities in the ceiling cavity of the house, which may have involved some nailing, but certainly involved climbing ladders and scaffolding to pass tools, including a nail gun, to her father.

35. Despite acknowledging all of these activities, and acknowledging that she was often working seven days a week on the site during holiday periods in early 2000, and otherwise on site when not at her job at Ansett, she maintained in cross examination that she was only capable of working for 24 hours a week in her job as a telephone sales consultant. I do not find this credible.

36. The high water mark of the plaintiff's medical case is that she sustained soft tissue injuries in this accident which have lead to chronic disabling pain, and a chronic pain syndrome, as well as psychological difficulties. This diagnosis has been reached by doctors on the basis of the history recorded in their reports of ongoing chronic pain, and gross restrictions of movement and activities. The picture one derives from these reports is of a person only just coping with restricted hours in a light job, and finding minor tasks, such as lifting a hair drier or shopping bags, a strain. The doctors agree that there is no objective evidence of physical injury to a disc or any other objective signs to explain her complaints of pain, and so they have made their diagnosis relying totally on the history they obtained, and her complaints of ongoing disabling pain.

37. This is totally incompatible with the picture that emerged on cross examination. Although the plaintiff did acknowledge providing help on the building in her evidence in chief, she did not refer to this to any of the examining doctors, even when those examinations coincided with periods of intense activity on the home site, such as the period of some weeks in early 2000 when she was on holidays from her work and in attendance at the building site full time engaged in painting, up a scaffold for much of the time.

38. This is a case where the medical evidence in support of the claim for ongoing accident related disability is dependent wholly on the history presented to the doctors, which is dramatically different from the history that has emerged in cross examination. As the High Court (Dixon C J, McTiernan, Kitto, Taylor and Windeyer JJ ) said in Ramsay v Watson (1961) 108 CL 642 at 649:

"if the man whom the physician examined refused to confirm in the witness box what he said in the consulting room, then the physicians opinion may have little or no value, for part of the basis of it has gone".

39. Counsel for the defendant made the submission that this problem effects all of the medical evidence in this case, because none of the examining doctors had anything like a true picture of the plaintiff's levels of activity, and were instead endeavouring to make a diagnosis on the basis of a history which, in his submission, I should find to be deliberately misleading. I have found the history to be misleading.

40. I find that the plaintiff sustained some soft tissue injury in the accident to her neck and back, but that by mid 1997 she was able to engage in vigorous dancing to 3am in a manner that she agreed would not suggest restriction on movement. While I have substantial doubt as to whether she was disabled to any real degree from that time on, I am prepared, on all of the evidence, to find that the plaintiff continued to suffer from a declining degree of soft tissue injury and restriction of movement to late 1999, being the time when, on her acknowledgment in cross examination, she was mostly engaged seven days a week in either her paid work or activities on the building site. From this time I would assess her as having nuisance value symptoms only. I am not satisfied that at present she is disabled in any way due to the accident.

41. The principles to be applied in determining compensation in personal injuries cases have been summarised by McHugh J In Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 where His Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

42. In relation to general damages, I assess the plaintiff on the basis of resolved soft tissue injuries only, as well as a degree of bruising due to seat belt impact that resolved in the normal way after the accident. I do not find any psychological sequelae to the accident, as in my view those reports that support such a claim have been fundamentally undermined by the fact that they were based on a quite misleading history. I am satisfied that the soft tissue injury related to the accident has resolved progressively since the accident, and that, since at least late 1999, has presented no more than nuisance value symptoms. I am not satisfied that at the date of trial there are any accident related on going difficulties. I assess general damages in the sum of $18,000, all for the past, generating interest of $1,695, for a total award of $19,695.

43. Out of pocket expenses paid by the plaintiff's workers compensation insurer to March 2001 amounted to $14,726.54, and I would award this sum. I am not satisfied that there should be any award beyond this, or for the future.

44. In relation to economic loss, the plaintiff's claim was particularised as a claim for $38,270 to February 2001, plus interest, and for ongoing loss in the sum of $144,783, calculated on the basis that her present working hours are the extent of her capacity. There is also a claim for lost superannuation. Weekly benefits were paid from the date of the accident to the end of February 1998 to cover the periods the plaintiff was not at work, in the sum of $23,633.02. I would award this sum. No interest is appropriate as the plaintiff was not out of pocket, and as I am awarding the gross sum, the Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 component is taken care of. In relation to the period beyond February 1998, I am not satisfied that the plaintiff has been restricted, due to her accident related disabilities, to working only the hours that she has, I find, chosen to work at Ansett. I am certainly not satisfied that there is any economic loss beyond late 1999 and for the future. I would award a modest buffer for additional past loss, in the sum of $7,000, inclusive of interest, for her diminishing accident related economic loss after compensation payments ceased in February 1998. The superannuation claim relates mainly to the future. I would accept that there has been a minor loss of superannuation during he period from the end of her compensation payments to now, and award $750 inclusive of interest for this period. This amounts to a total economic loss award of $31,383.02

45. A Griffiths v Kerkemeyer (1977) 193 CLR 161 claim was made on the basis of assistance the plaintiff's mother has provided her since she moved back home following the breakdown of her marriage. As this has occurred after the periods of activity on the building site, I am not satisfied that there is an accident related need for assistance with ordinary domestic activities, given the range of activities of which the plaintiff is capable.

46. This amounts to a total award of damages of $65,804.56 which would be my award if the defendant was wholly responsible for the accident.

47. I have found that the accident occurred because the plaintiff pulled out from a give way sign, having failed to observe the defendant, and collided with the defendant as the defendant was attempting to make a right hand turn in her proper lane. I have found that the defendant was herself negligent in not again checking to see that the plaintiff remained stationary at the give way sign, instead concentrating on oncoming traffic on Kingsford Smith Drive as she waited for a safe break in the traffic to execute the turn. In these circumstances, I am satisfied that the contributory negligence of the plaintiff was the dominant cause of the accident. I would assess the degree of contributory negligence at 66%, and reduce damages accordingly.

48. This amounts to an award of damages in this case of $22,373.55 I will hear the parties as to costs.

I certify that the preceding forty eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 10 August 2001

Counsel for the Plaintiff: Mr Pilkinton

Solicitor for the Plaintiff: Porter Parkinson & Bradfield

Counsel for the Defendant: Mr McDonogh

Solicitor for the Defendant: Abbott Tout

Date of hearing: 11 & 12 July 2001

Date of judgment: 10 August 2001