Trentelman v Roberts & Anor [2004] ACTSC 39 (4 June 2004)

Last Updated: 23 June 2004

KERRY ANNEKE TRENTELMAN v ARLYN HOPE ROBERTS & ANOR

[2004] ACTSC 39 (4 June 2004)

NEGLIGENCE - personal injury - collision between bicycle and open passenger door of motor vehicle - responsibility of driver for act of passenger - contributory negligence of cyclist

DAMAGES - fractured wrist - possibility of future osteoarthritis - no issue of principle

Australian Road Rules, rr. 141, 269

Civil Law (Wrongs) Act 2002, s 102(1)

Road Transport (General) Act 1999, ss 196, 203

Broken Hill Pty Co Ltd v Duffy (1943) 16 ALJ 374

No SC 378 of 2003

Coram: Master Harper

Supreme Court of the ACT

Date: 4 June 2004

IN THE SUPREME COURT OF THE )

) No SC 378 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KERRY ANNEKE TRENTELMAN

Plaintiff

AND: ARLYN HOPE ROBERTS

1^st Defendant

AND: REALTIME TECHNOLOGY SYSTEMS PTY LIMITED

2^nd Defendant

ORDER

Coram: Master Harper

Date: 4 June 2004

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff against the first defendant in the sum of $29,900.00, apportioned as to $29,850.00 for personal injury and $50.00 for property damage.

2. Judgment be entered for the plaintiff against the second defendant in the sum of $29,850.00.

1. On 6 March 2003, between 8.30 am and 9.00 am, the plaintiff was riding a pedal cycle north on Kent Street, Deakin. She was travelling from her home in Hughes to the Australian National University, where she was undertaking a doctorate of philosophy course in computer studies. Her route took her past Alfred Deakin High School on her left.

2. The first defendant was driving a vehicle owned by the second defendant from her home at Isabella Plains to work at Parliament House, dropping her sons off at the school on the way. She stopped her vehicle facing north in Kent Street. As the plaintiff was passing on the nearside of the vehicle, one of the boys opened the rear passenger door of the car, a Holden Astra, and the plaintiff's bicycle collided with it. The plaintiff was thrown to the ground and injured. There is a conflict of evidence as to the distance between the nearside of the defendant's vehicle and the western kerb of Kent Street at the time of impact.

3. The plaintiff's evidence is that she was riding her cycle, a mountain bike, north on Kent Street, to the left of the northbound motor traffic. She was pedalling downhill at what she described as a reasonable pace, and was gaining speed. She saw the passenger side car door being opened. In her words, it was suddenly flung out in front of her. She had no alternative but to hit the door. There was a pedestrian crossing controlled by traffic lights some distance ahead of the point of collision and the plaintiff said that there were a number of vehicles either stationary or moving slowly. The plaintiff said that there was nothing to distinguish the defendant's vehicle from any of the other cars, and it is clear that she did not specifically focus on the defendant's car until the last moment, when the passenger door opened.

4. Just past the traffic lights, there is a stopping bay on the western side of Kent Street, with room for about three cars. The plaintiff had on other occasions seen parents dropping children off at school, usually in the bay, but sometimes at the traffic lights. She agreed that she had seen some children let out in the line of traffic, and on other occasions she had seen them let out from vehicles pulled over towards the kerb. She knew, well before the accident, that there was a prospect that someone might get out of a car on the passenger side in the area. The plaintiff's evidence was that the traffic generally was about 1.5 metres out from the western kerb. Later, in cross-examination, she said that there was usually a two-metre gap between the kerb and the passenger side of the cars, leaving enough room for bikes. She said that the defendant's car was in line with the rest of the other cars. She disagreed that the car might have been only 30 to 40 centimetres out from the kerb, and also disagreed that other northbound vehicles overtook the defendant's car whilst it was stationary.

5. She was unsure precisely where she landed after impact, and where the bicycle ended up. She said that she hit her head on either the road surface or the kerb and that her helmet was damaged beyond repair. She agreed that she landed in a position where part of her body was on the grass verge and that the bicycle may also have been, wholly or partly, on the grass verge after it came to rest.

6. The plaintiff agreed in cross-examination that she knew that Kent Street was a dangerous road, that she knew this well before the day of the accident, and that she knew it was dangerous because pedestrians might get out of car doors. The plaintiff, who is tall and solidly built, was adamant that if the defendant's car had been only 40 centimetres from the kerb, there would not have been room for her to pass between it and the kerb.

7. The first defendant's evidence was that she was driving north in Kent Street. She could see that the bay beyond the traffic lights was full. When she was about eight cars back from the lights, she decided to stop and let her sons out. She said that she did a `head check', which involved looking in her left wing mirror, and also rotating her head to the left to look over her shoulder. She said that she put on her left indicator and pulled into the kerb, stopping 30 to 40 centimetres out. As she came to a halt, she noticed the traffic lights ahead change from green to amber. The traffic stopped and the lights turned red. She noticed about ten students on the eastern side of Kent Street, an unusually large number, who proceeded to cross towards the school. She and her sons were chatting. When the pedestrians were about halfway across the road, she said, "Ok. Off you go. It's time for school." She looked again in her left wing mirror, and over her left shoulder. Her younger son, in the back seat, opened his door. As he did so, she heard a yell and then felt a thump which caused the car to shudder. She did not immediately realise what had happened, until her son said that a pushbike had run into them. She thought at first that the impact must have been to the back of her car but her sons said that it was to the back door. Because of the traffic, she decided that it was unsafe for her to get out on the driver's side of her car. She asked her sons to get out and stay with the cyclist. She drove her car over the kerb and onto the grass verge on her left.

8. The first defendant described herself as a very cautious person with a habit of looking behind her in such circumstances, and an awareness of the dangers of opening car doors. She was always telling her sons to check before opening doors.

9. The evidence of the first defendant was corroborated by both of her sons. Michael, now 16 and in Year 11 at school, gave evidence that as his mother was driving along in heavy traffic, the lights at the pedestrian crossing turned red and the traffic came to a stop. His mother pulled over to the left side of the road near the gutter and he and his brother proceeded to get out. As he opened his door, he heard a scream and a cyclist hit the back door which his younger brother had opened just before. He said that the car was so close to the kerb that if he had put his foot out of the vehicle, it would have been level with the vertical portion of the kerb. He thought that the car was "perhaps a foot and a bit" out from the kerb. He said that the cyclist landed on the grass about level with the front wheel of the car. The bicycle ended up on the grass a bit behind her.

10. The younger son, Lyle, now 15, gave evidence that his mother drove up next to the kerb, moving over to the left before stopping out of the line of traffic. He asked his mother for some money, and this exchange took a few seconds. He described his mother as pretty pedantic about looking around and behind her. He said that he looked back himself before opening the door and saw nothing coming. He proceeded to open the door and heard a scream. He had one foot on the ground and his hand on the door handle. The door was about three-quarters open. As he heard the scream, he pulled his hand and foot back in, and the cyclist ran into the door. He said that she landed on the grass about a metre in front of the car, to its left. He was unable to estimate in centimetres how far the side of the car was out from the kerb, but he said that he could have touched the kerb with his feet. He said that the cyclist landed on the grass verge. He agreed with a leading question from counsel for the defendant that she landed "nowhere near the road". He agreed in cross-examination that he knew that it was being suggested that his mother was to blame for the accident, and that this distressed him. He also agreed that he and his mother and brother might have discussed the circumstances of the accident subsequently.

11. The first defendant and both of her sons were definite in their evidence that the nearside of the vehicle was close to the kerb at the time of the collision, and all denied that it could have been as far as 1.5 metres out from it.

12. The defendants rely upon an accident notification form signed by the plaintiff and completed by her solicitor on her instructions. Its significance is said to lie in the fact that it includes a diagram in which the positions of the vehicles assist the defendant's case. It seems to me that the diagram is a very general one, with no attempt at scale, and I do not find the diagram or the accident notification form of any assistance in determining the issues in the action.

13. The plaintiff tendered a report by Mr John Jamieson, the principal of Jamieson Foley, consulting forensic engineers. I admitted the report into evidence over strenuous objection by counsel for the defendants, as to the assumed facts and as to Mr Jamieson's qualifications to express the expert opinions which appear in the report. Mr Jamieson inspected the general area of the collision between 8.15 and 9.15 am on 13 February 2004. He took a number of photographs from different angles. It is common ground that there were no relevant changes to the site from the date of the collision until the date the photographs were taken. It can be seen from the photographs that Kent Street runs downhill for northbound traffic until just south of the pedestrian crossing and traffic lights, and uphill with a slight left-hand curve northwards from there. There is a bus shelter a very short distance south of the point of impact, on the western verge.

14. Mr Jamieson prepared a scale plan of the scene, showing the position of footpaths on both sides of Kent Street, each measured as 8.2 metres from the nearest kerb. The plan shows double unbroken centre lines for some 30 or 40 metres on either side of the pedestrian crossing, and also double unbroken centre lines south of the prolongation of the southern kerb of Hampden Place, but no marked centre line in the impact area. Mr Jamieson measured Kent Street as 10.4 metres in width between the kerbs, and the downhill grade south of the pedestrian crossing as 5%. He was not given any information as the extent of damage to the bicycle or the car, or the rest position of the cyclist, and was unable to arrive at any conclusion about the speed of the cycle upon impact. He observed other cyclists in the area, and formed the view that their average speed was about 20 kilometres per hour. At that speed, he said, a bicycle would move about 5.5 metres per second. He concluded that at a speed of about 20 kilometres per hour the plaintiff would have had no prospect of avoiding a collision with the door if it was opened at such a time as to give her 2.3 seconds or less to react and brake.

15. Mr Jamieson has the degrees of Bachelor of Surveying and Master of Engineering Science from the University of New South Wales, and is a fellow of the Institution of Engineers, Australia. His curriculum vitae is impressive. He has worked with the NRMA as a senior traffic engineer and as engineering manager, and has been operating his professional practice as a consulting forensic engineer for some 15 years. He has published extensively, and has prepared many expert reports in relation to motor vehicle collisions. He has given expert evidence in the courts of New South Wales and the Australian Capital Territory on many occasions. I accept that his expertise qualifies him to express the opinions contained in his report.

16. It is common ground that there are provisions of the Australian Road Rules which might have some application to both the plaintiff and the first defendant in the circumstances of this case. Rule 141 provides as follows:

Rule 141 No overtaking etc to the left of a vehicle

(1) A driver, except the rider of a bicycle, must not overtake a vehicle to the left of the vehicle unless:

a. the driver is driving on a multi-lane road and the vehicle can be safely overtaken in a marked lane to the left of the vehicle; or

b. the vehicle is turning right, or making a U-turn from the centre of the road, and is giving a right change of direction signal.

Offence Provision

(2) The rider of a bicycle must not ride past or overtake to the left of a vehicle that is turning left and is giving a left change of direction signal.

Offence provision

17. It is not an offence for a pedal cyclist to overtake a vehicle on the left. Subrule 141(2) can, in my view, have application only where the vehicle being overtaken is making a left turn into another street, or perhaps a driveway. Even if the vehicle is giving a left change of direction signal, the subrule does not apply where the vehicle is merely changing lanes or moving towards the kerb on its left. In the circumstances of this case, the plaintiff could not have been convicted of an offence under subrule 141(2).

18. Subrule 269(3) provides as follows:

Rule 269 Opening doors and getting out of a vehicle etc

. . .

(3) a person must not cause a hazard to any person or vehicle by opening a door of a vehicle, leaving a door of a vehicle open, or getting off, or out of, a vehicle.

Offence provision

The application of this subrule is not limited to the driver of a motor vehicle, and could apply to a passenger. It could be argued that the first defendant's younger son, Lyle, committed a breach of this subrule. It does not appear arguable that the first defendant herself infringed it.

19. I formed the view that the plaintiff, the first defendant and both her sons were truthful witnesses doing their best to recall the events of the morning of the collision. I am not satisfied that the distance between the nearside of the defendant's vehicle and the western kerb of Kent Street at impact could have been as little as 30 to 40 centimetres. If it had been as close as that, I am satisfied that there would barely have been enough room for the plaintiff to get through, regardless of whether either passenger door was opened. I am sure that the plaintiff, confronted by such a narrow gap, would have braked and reduced speed so as to negotiate it safely. I am satisfied that until Lyle Roberts commenced to open his door, the vehicle was a sufficient distance out from the kerb for the plaintiff to have passed between the car and the kerb without reducing speed. I accept that the plaintiff did not particularly notice the defendant's vehicle until the door began to open. However, the vehicle must have been close enough to the kerb for the open door to have blocked the plaintiff's path. It must, I think, have been closer to the kerb than the plaintiff's estimate of 1.5 metres. I think that it was probably about 80 centimetres to one metre from the kerb. Of course, the car may not have been precisely parallel to the kerb.

20. If the plaintiff's nearside mirror had been properly adjusted, and if she had looked in it just before she told the boys to get out of the car, it seems to me that she must have seen the approaching cyclist. She did not see the plaintiff before impact, and I think that her recollection must be at fault as to the lapse of time between when she last looked in the mirror and when she told the boys to get out. She was aware that cyclists used Kent Street and rode on the left, close to the kerb. She was aware of the precise risk which eventuated. Although it was not the first defendant who opened either passenger door, she was in charge of the vehicle, she was the only adult in the vehicle and she gave the direction to the boys to open the doors and get out. I am satisfied that if she had been keeping an adequate lookout, she would have seen the plaintiff approaching on her bicycle, and would have told the boys not to open their door until the cyclist had passed. Her failure to keep a proper lookout amounted to a breach of her duty of care to the cyclist.

21. The plaintiff, at the same time, knew that Kent Street was dangerous for the very reason that parents at that time of the morning were likely to be letting their children off at the school. She was aware from her previous experience and observations of the risk which came to pass. She was pedalling downhill and gaining speed. The defendant's vehicle was stationary and was reasonably close to the kerb, certainly closer than the 1.5 to 2 metre distance the plaintiff regarded as normal for traffic. In overtaking the defendant's vehicle on its nearside in that manner, the plaintiff failed, in my view, to take reasonable care for her own safety.

22. I should add that I do not regard it as negligence on the part of the plaintiff to have been riding on the road surface rather than the footpath. She could have done so, but was equally entitled to use the road as long as she did so with care. The footpath was not designated as a path for shared use by cyclists, and was only about half the recommended width for such a path. It would follow from the defendant's submission that this amounted to contributory negligence that it must always be contributory negligence for a cyclist to use a road when there is a footpath available as an alternative. Such a proposition cannot be accepted.

23. Having found that the plaintiff suffered damage partly because of her failure to take reasonable care and partly because of the negligence of the first defendant, I am required to reduce the damages recoverable to the extent I consider just and equitable, having regard to the plaintiff's share in the responsibility: Civil Law (Wrongs) Act 2002, s 102(1). Frequently, where there is a collision between a motor vehicle and a bicycle, a factor operating against the driver of the motor vehicle in apportionment of liability is the relatively greater capacity of the motor vehicle to inflict damage. That is not a factor in the present case: the motor vehicle was stationary and the bicycle was moving at the time of impact, and the negligence of the first defendant had nothing to do with her manner of driving. I find this a case where it is very difficult to say that either the plaintiff or the first defendant was more responsible than the other for the accident. In those circumstances, it seems to me that the responsibility for the collision should be apportioned equally: cf Broken Hill Pty Co Ltd v Duffy (1943) 16 ALJ 374 at 376 per Latham CJ. The damages should be reduced by 50% to take account of the contributory negligence of the plaintiff.

24. This brings me to the assessment of damages. The plaintiff was born in Adelaide on 21 November 1973, and is 30 years old. She has an honours degree in physics and mathematics from Adelaide University. She commenced a masters degree, which she has not completed, and since December 2000, has been engaged in a doctorate of philosophy programme at the Australian National University in computer studies.

25. The plaintiff was thrown from her cycle on impact. She hit the back of her head with sufficient force to damage her helmet beyond repair. I accept that she must have hit her head on the road surface or on the kerb and not on the grass, for such damage to have occurred. She bruised her right shoulder, and fractured her right wrist.

26. Some little time after the accident, a teacher took her to the school sick room where she was treated with an ice pack, but her wrist was swelling quickly and appeared to be out of shape. At her request, one of the school administration staff drove her to the accident and emergency department at the Canberra Hospital, where she was seen immediately. An x-ray at 9.49 on the morning of the collision revealed a comminuted fracture of the radial styloid with intra-articular involvement and volar angulation by approximately 15 to 20 degrees. Dr Michael Gillespie, orthopaedic surgeon, carried out a closed reduction of the fracture. An x-ray the next day showed the fracture line visible through the comminuted distal radial intra-articular fracture. The bony details were obscured by the overlying plaster, but the alignment was near anatomical.

27. The plaintiff was discharged the next day, with her right arm immobilised in a back slab, and plaster extending over most of the upper arm, and the whole of the forearm to the knuckles. She was given morphine, and on discharge a prescription for Panadeine Forte. She was in considerable pain and discomfort which she assessed at seven or eight out of ten, though this was relieved by Panadeine Forte. After her prescription ran out, she bought Panadeine from the chemist.

28. She had been warned that there was a prospect that there would be some movement of the bones and that a second operation might be necessary. On 19 March, she returned to the fracture clinic, where x-ray confirmed angulation of the bones in a volar direction, with the distal portion of the radius forming an angle of 37 degrees with the proximal portion. The plaintiff was again admitted to hospital, and on 26 March Dr Gillespie carried out an open reduction under general anaesthetic, with internal fixation by plate and screws. This procedure was successful in aligning the fracture in anatomical position. The plaintiff was in hospital overnight again on this occasion. She experienced increased pain after the surgery, and further Panadeine Forte was prescribed, followed by Panadeine and Panadol. She was discharged with a back slab, bandages and a sling. The bandaging was removed some eight weeks after the surgery. The bandaging was from the elbow to the knuckles. After about eight weeks, she was able to remove and replace the back slab and bandages. She took the slab off at night and put it back on in the morning. This continued for another three or four weeks.

29. A few days after the second operation, the plaintiff went to Adelaide, where her family live. She went to a local general practitioner in Adelaide and asked her to take the stiches out. When this doctor removed the bandages, the plaintiff was in intense pain, and was sent to the Queen Elizabeth Hospital by taxi. She was reassured that the cause of the pain was the removal of pressure, altering blood flow to the nerve endings. She was given Panadeine Forte. A few days later the plaintiff saw another general practitioner, some distance out of Adelaide, where the stiches were removed uneventfully.

30. In early May 2003, the plaintiff commenced physiotherapy, and had a number of sessions, until the end of July. By the end of July, the plaintiff was able to resume her studies at university. She was provided with a curved `orthopaedic' keyboard. She found that a few times a week she needed to have a break from keyboard work for ten or fifteen minutes. She would apply a heat pack, and if necessary take Panadol or Panadeine.

31. She lives alone, and had to attend to all of her normal household activities using her left hand. This caused her inconvenience with bathing, dressing, cooking and shopping. A friend made some meals for her.

32. The only expert medical evidence in the plaintiff's case was a written report of Dr P J Phillips, a medical practitioner with fellowships in surgery. Dr Phillips practises at Axedale near Bendigo in Victoria. His precise area of specialisation is not clear from his report. He saw the plaintiff in Canberra in May 2003, at the request of her solicitors. He noted a scar on the volar surface of her right forearm, accompanied by wasting of the muscles of the right hand. The wrist was extremely stiff, with both dorsal and palmar flexion limited to ten degrees. Movement of the thumb was restricted to the extent that the plaintiff was unable to oppose the thumb to the third, fourth or fifth fingers. She could not make a fist. He recommended a prolonged period of hand therapy, and thought that it would be at least six weeks before the plaintiff would be able to write or type easily. He thought that the plate and screws would remain in place permanently. He said that as the fracture involved the joint line, there was a risk that she might develop osteoarthritis in the future. There was also a possibility that she would never regain full movement of the wrist.

33. Dr Phillips saw the plaintiff in the early stages of her physiotherapy programme, and less than three months after the accident. He was not cross-examined and the defendant called no medical evidence. It is clear from the plaintiff's evidence that her range of movement has increased since her examination by Dr Phillips. His evidence as to the risk of osteoarthritis is uncontradicted, but is expressed as a possibility rather than a probability, and is silent as to when in the future the development might occur, and what its range of effects might be.

34. The plaintiff's own evidence is that her condition has not changed since about mid-August 2003, and I accept that the injury has stabilised and will not improve in the future. She described difficulties in turning taps in the shower with her right hand. She no longer rides her bicycle to work, but catches a bus. She does not feel comfortable riding the bike, and does not want to have another accident. In winter, her wrist aches a few times a week. This requires her to take a break from keyboard work for 15 to 30 minutes. The plaintiff agreed in cross-examination with the proposition that her wrist problems are of nuisance value in that there are some things she has to do with her left hand rather than her right, but she is still able to do them.

35. In summary, the plaintiff, who is 30 years of age, has suffered a wrist fracture to her dominant arm which has left her with permanent restriction of movement and some aching from time to time. The condition will not improve, and will always interfere with daily activities, and with the use of a computer keyboard. Keyboard work is likely to be an important aspect of the plaintiff's working life. There is a possibility that osteoarthritis may develop in the wrist joint at some indeterminate time in the future. In my opinion an appropriate award for general damages is $50,000.00 which I apportion as to $25,000.00 for the period from the injury to date, and as to $25,000.00 for the future. The past component attracts interest, which I assess at $1,000.00, bearing in mind that the worst of the plaintiff's pain and suffering occurred at the time of the accident and in the following few weeks. I allow $500.00 for past treatment expenses.

36. There is a claim for future treatment expenses. I accept the plaintiff's evidence that she requires non-prescription painkillers from time to time, and I am satisfied that this need will continue. I also take account of the chance that the plaintiff will incur expense for treatment should the risk of osteoarthritis eventuate. By way of future treatment expenses I allow $1,000.00.

37. I accept the claim set out in the Statement of Particulars for about 12 hours assistance by family members and work colleagues. I allow $200.00, including interest, to cover the commercial value of the services provided. I am not satisfied that the evidence justifies any future award for similar assistance.

38. As to loss of earnings, I am satisfied that the accident has extended the plaintiff's study programme by six months, so that she will graduate as a doctor of philosophy six months later than if she had not been injured. This will delay by six months her entry into the workforce. A claim is made on her behalf for six months loss of earnings at the rate of $725.59 per week, being the net salary of a level A(6) academic staff member at the Australian National University. The gross salary for that position is $50,107.00 per annum. This is put on a `comparable employee' basis, the plaintiff's evidence being that she has not yet decided what path her career is likely to take. The position selected may be a little generous to the plaintiff at the defendant's expense, but it seems to me reasonable to allow something of the order of $650.00 net per week as an amount the plaintiff could readily earn with a doctorate in computer studies. Against this loss must be set off the Australian Postgraduate Award Scholarship received by the plaintiff during her studies, which she confirms that she will continue to receive during the extended period of study made necessary by the accident. The value of that scholarship is $23,294.00 per annum and it is tax free. Taking that into account, it seems to me that an appropriate sum to compensate the plaintiff for the six months delay in entering the workforce is $5,000.00. In assessing that sum, I take into account the fact that the plaintiff will receive the money immediately and that there might have been some delay in her finding appropriate employment.

39. There is a further claim for loss of superannuation benefits in relation to the earnings for the lost six months. There is no suggestion that the scholarship carries any superannuation benefits, and it seems to me reasonable to allow an amount calculated as 9% of the likely gross earnings for that six month period. For loss of superannuation benefits I allow $2,000.00.

40. I am not satisfied that the plaintiff's disabilities have affected her earning capacity in such a way as to be likely to be reflected in loss of earnings in the future. The evidence of Dr Phillips as to the possibility of development of osteoarthritis in the wrist is insufficient to satisfy me that any allowance should be made for loss of earning capacity consequent on the risk coming to pass.

41. The total of the components of my assessment of damages for the plaintiff's injuries is as follows:

General damages $50,000.00

Interest on past proportion $1,000.00

Past treatment expenses $500.00

Future treatment expenses $1,000.00

Services (Griffiths v Kerkemeyer) $200.00

Loss of earning capacity $5,000.00

Loss of superannuation benefits $2,000.00

$59,700.00

42. There is a modest claim for $100.00 for the damage to the bicycle and the cost of a new helmet. Whilst the claim has not been supported by itemised accounts or receipts, I am satisfied on the evidence that the cost of repairing the bicycle and purchasing a new helmet must have been at least $100.00 and I allow that amount for property damage.

43. Section 196 of the Road Transport (General) Act 1999 creates a presumption that the driver of a motor vehicle is the agent of the owner acting within the scope of the owner's authority for the purpose of an action against the owner arising out of an accident for damages in relation to the death of or bodily injury to a person caused by or arising out of the use of the vehicle. Because of the presumption, the second defendant is vicariously liable for the negligence of the first defendant in respect of the personal injury component of the plaintiff's damages. The presumption does not apply to the property damage component. There was no evidence from which agency could be inferred; indeed, the only evidence was to the contrary effect. The first defendant was driving the second defendant's vehicle for the purpose of taking her children to school and getting herself to her place of employment with an unidentified government department at Parliament House. The plaintiff has not established any liability of the part of the second defendant for the property damage component of her damages.

44. In any event, s 203 of the same Act requires the Court to apportion the damages in these circumstances, and to apportion any costs awarded.

45. After taking into account the 50% reduction required by my finding as to the plaintiff's contributory negligence, the first defendant will be liable for half of the award for personal injury ($29,850.00) and for half of the award for property damage ($50.00). The second defendant will be liable for the same amount by way of personal injury but not for property damage.

46. Because of the minuscule proportion of the total damages represented by the property damage component, I propose to apportion to the whole of the costs to the personal injury aspect of the claim and none of them to the property damage aspect. I will not make any order as to costs in case there are matters of which I am presently unaware and which ought to be taken into account on that question.

47. There will be judgment for the plaintiff against the first defendant in the sum of $29,900.00, apportioned as to $29,850.00 for personal injury and $50.00 for property damage. There will be judgment for the plaintiff against the second defendant in the sum of $29,850. I shall hear the parties as to costs.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.

Associate:

Date: 4 June 2004

Counsel for the plaintiff Ms H L Donohue

Solicitor for the plaintiff Blumers

Counsel for the defendant Mr P D Ryan

Solicitor for the defendant Hunt and Hunt

Date of hearing 18 May 2004 and 26 May 2004

Date of decision 4 June 2004