Cirina v Wong [2005] ACTSC 45 (15 June 2005)

Last Updated: 26 July 2005

CIRINA V WONG

[2005] ACTSC 45 (17 June 2005)

NEGLIGENCE - personal injury - collision between car and pedestrians at night- failure to keep proper lookout- contributory negligence

DAMAGES - personal injury - low back injury- aggravation of pre-existing spondylosis- soft tissue injury to thigh causing fatty necrosis- anxiety disorder- no issue of principle.

No. SC 619 of 2005

Judge: Master Harper

Supreme Court of the ACT

Date: 17 June 2005

CSIK V WONG

[2005] ACTSC 46 (17 June 2005)

NEGLIGENCE - personal injury - collision between car and pedestrians at night- failure to keep proper lookout- contributory negligence

DAMAGES - personal injury - fracture to pelvis- fracture to ankle- minor head injury- anxiety and depression- no issue of principle.

No. SC 620 of 2005

Judge: Master Harper

Supreme Court of the ACT

Date:17 June 2005

IN THE SUPREME COURT OF THE )

) No. SC 619 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GIOVANNA CIRINA

Plaintiff

AND: COURTNEY ANNE WONG

Defendant

ORDER

Judge: Master Harper

Date: 17 June 2005

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $ 47,101.22

IN THE SUPREME COURT OF THE )

) No. SC 620 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ELIZABETH CZIK

Plaintiff

AND: COURTNEY ANNE WONG

Defendant

ORDER

Judge: Master Harper

Date: 17 June 2005

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $ 89,629.15

1. These are actions brought by two pedestrians for damages for personal injury against the driver of a car which struck them while crossing the road. The collision occurred at about 7.30 pm on 6 May 2002 in Antill St, Downer.

2. The plaintiffs are friends and live next door to each other in Berry Street, Downer, a short distance from Antill Street. Antill Street is a major thoroughfare which divides the suburbs of Downer and Dickson. The plaintiffs were on their way to the Tradesmen's Union Club in Badham Street, Dickson to play bingo and the poker machines.

3. The plaintiffs walked from their homes along Pigott Street, which forms a T-junction with Antill Street, to its north. Badham Street forms a T-junction to the south of Antill Street, some distance east of Pigott Street. Antill Street runs east and west, and commences at traffic lights at Northbourne Avenue, about two blocks west of Pigott Street.

4. Antill Street, at the point where the plaintiffs were crossing it, comprises two carriageways divided by a median strip. The eastbound carriageway is divided into two marked traffic lanes, and the median strip is about the width of a traffic lane. To the left of the lanes for eastbound traffic is an unbroken lane line which divides a parking lane abutting the northern kerb of Antill Street from the trafficable lanes.

5. It was a fine, clear, dark night. There are street lights in the area, but their effectiveness at the time was considerably reduced by the foliage of substantial street trees on the nature strip along the northern side of Antill Street. Street lights on the southern side of Antill Street were not restricted in that way. There were no street lights along the median strip.

6. The plaintiffs crossed Antill Street in a southerly direction. Their evidence was that they walked straight across the road, that is to say at a right angle to the direction of traffic. They walked arm in arm, Mrs Cirina on the right and Mrs Csik on the left. Mrs Cirina was wearing a dark grey jacket and blue denim jeans; Mrs Csik was wearing a sleeveless navy jacket over a white jumper and black slacks. Mrs Cirina conceded that the manner in which they were walking meant that her body was angled slightly away from eastbound traffic approaching from her right.

7. They stopped and looked right when they got to the line dividing the parking lane from the traffic lanes. They saw the headlights of approaching vehicles, which they assessed as far enough away for them to be able to walk safely to the median strip. They did not stop again and look right when they got to the broken line dividing the eastbound traffic lanes. Their evidence was that they had got to within a step of the median strip when they were struck. They saw the car, if at all, so soon before the moment of impact that they were unable to take any evasive action. One was thrown on to the bonnet of the car and fell to the road. The other was thrown into the air and landed on the road surface.

8. The defendant had been driving north in Northbourne Avenue, and turned right into Antill Street. She had a friend in the front passenger seat. Her headlights were on low beam. Her attention was distracted by a car travelling west in Antill Street without lights. Although the car did not have its indicator on, for some reason she formed the view that it might make a right turn across her path. She flashed her lights on to high beam a couple of times, to warn the driver of her presence and perhaps to attract the driver's attention to the fact that the lights were off. She did not notice the pedestrians crossing Antill Street from her left. Her passenger screamed, and the defendant braked sharply. She left 10.3 metres of skid marks, straight and parallel to the lane lines. The investigating police officer deduced from an inspection of the skid marks that the car had struck the pedestrians about five metres into the skid. By the time he attended the scene, the plaintiffs had been taken away by ambulance, but the defendant's car had not been moved. It is clear from photographs he took that the driver's side of the car was close to the northern edge of the median strip, though perhaps a little more than one step from it. I accept that the point of impact was approximately in line with the driver's side tyre burn mark, and about halfway along its length.

9. Notwithstanding that the plaintiffs were wearing dark clothing (except for Mrs Csik's white sleeve which would probably have been obscured by Mrs Cirina's body) and notwithstanding the poor street lighting, the plaintiffs were within the defendant's field of view for some time before the collision. She should have seen them. Despite the darkness, she was able to see a car coming in the opposite direction with its lights off. I find that the defendant failed to see the plaintiffs because she was not keeping a proper lookout. She was travelling at only about 40 km/h when she commenced to brake. If she had commenced braking five metres earlier, or changed direction slightly to her left, the collision would have been avoided. If she had been keeping a proper lookout, I am in no doubt that the collision would not have happened.

10. At the same time, I am satisfied that each of the plaintiffs was guilty of a degree of contributory negligence. They were wearing dark clothing, and should have been more alert to the fact that this made them difficult to see. More importantly, if they had stopped at the broken line dividing the two eastbound traffic lanes and looked to their right before proceeding, they would have seen the headlights of the defendant's car, and appreciated that they probably did not have time to cross safely in front of it. They should, and I have no doubt would, have waited between the lanes until the vehicle passed. If they had done so, they would not have been struck even though it seems likely that the defendant would not have seen them.

11. Mrs Csik had had a few glasses of wine during the day, and a blood test at Calvary Hospital gave a reading of 0.05%. There is nothing unlawful about a pedestrian crossing a road with that proportion of blood alcohol, and there is no evidence that Mrs Csik was in any way impaired by the wine. In the absence of expert evidence I am not prepared to hold that a person with a blood alcohol level of 0.05% is suffering from a self-induced impairment of cognitive faculties or reaction time. Even if I were, there is nothing about Mrs Csik's conduct from which I could infer that any such impairment had any causal connection with the collision.

12. At the time of the accident, Mrs Cirina was sixty-three and Mrs Csik was seventy. They had lived next door to each other for forty years. Neither had ever had a driving licence. For all that time they had lived within walking distance of the Dickson shops, and each had on numerous occasions crossed Antill Street at or near the collision site.

13. Mrs Cirina was closer to the traffic and was in the better position to keep a lookout for oncoming traffic. Mrs Csik was on her left side, and to that extent her view of oncoming traffic was obscured. Mrs Csik is older and more slightly built, and I think it likely that she relied on Mrs Cirina to keep a lookout for oncoming traffic, and not to cross unless it was safe to do so. Whilst both ladies must be found to have contributed to the happening of the collision by their failure to take reasonable care for their own safety in crossing the two lanes of traffic without keeping a proper lookout, and in not stopping at the dividing line between the two lanes, it seems to me that Mrs Cirina's contributory negligence was greater than that of Mrs Csik.

14. The defendant was in charge of a motor vehicle capable of doing considerable damage to a pedestrian. Her negligence must be regarded as overwhelmingly the prime cause of the collision. In all the circumstances it seems to me just to reduce Mrs Cirina's damages by 15% and Mrs Csik's damages by 10%, to take account of their contributory negligence.

15. Damages - Giovanna Cirina

Mrs Cirina was born on 24 June 1938 and is now almost sixty-seven. She was born in Italy and migrated to Australia in 1954, aged sixteen. She worked as a housemaid and cleaner until about 1970, and since then has been engaged in home duties. She has three married children and a number of grandchildren, and lives with her husband, an invalid pensioner. Medical records produced on subpoena revealed some relevant pre-accident history: in 1984 she underwent a radiculogram which disclosed mild abnormalities at L3-4, L 4-5 and L 5-S1. She gave a history at that time of back pain for the last seventeen years, and of having had a hospital admission the previous year for an injection for a bad back. She was referred for x-rays in 1990 which showed minor osteophyte formation in the lower thoracic region of the back. She required physiotherapy for thoracic pain in 1994. In 1996 she was referred by her general practitioner for an x-ray of the lumbo-sacral spine which revealed narrowing of the L5-S1 disc space consistent with a disc lesion, and advanced degenerative changes at the facet joints. In August 2001, less than a year before the motor accident, her general practitioner referred her for x-rays of the lumbar spine and also the cervical spine. The lumbar x-rays confirmed the degenerative change and a little disc space narrowing at L5-S1, and also showed minimal degenerative changes at L2-3 and L3-4. The neck x-ray showed minimal early spondylosis at C5-6 and C6-7.

16. The plaintiff confirmed that she had been referred for these various diagnostic procedures and for treatment in respect of symptoms in the neck, mid-back and low back, but her evidence was that at the time of the car accident she was generally in good health, able to cope with her housework and a little gardening, and in the habit of walking for an hour each day.

17. The impact with the motor vehicle threw the plaintiff into air. She landed some distance away on the road heavily on her buttocks, in a sitting position. She was immediately aware of severe low back pain. She developed a painful swelling over the posterior aspect of the right thigh, and she had numerous superficial abrasions, in particular to the lower right leg. She was taken by ambulance to Calvary Hospital. X-rays were taken and disclosed no fractures, and Mrs Cirina was taken home the same night. She could not bend her right knee or move her leg and needed help in getting in and out of the car and into her house. She spent the next week resting in bed, and during this period had difficulty getting to the bathroom.

18. After a week, she was able to get out of the house and saw her general practitioner, Dr O'Neill at Dickson. He prescribed painkilling medication and referred her for physiotherapy which she continued for some months with benefit. Her swollen and painful right thigh prevented her from lying comfortably on her right side and disturbed her sleep. There was some disagreement between medical practitioners about the injury to the right thigh. Dr Schellenberger, a Melbourne-based specialist surgeon who saw her on two occasions for her solicitors, thought that there might be a lipoma present, a constitutional pre-existing fatty swelling unrelated to the accident. This was, however, excluded by an ultrasound in October 2003 which showed a moderate sized depression of the posterior lateral aspect of the right thigh corresponding to a moderate loss of deep adipose tissue, with fluid in its place. The radiologist described this as fatty necrosis of the deep layer of the subcutaneous fat accompanied by a small haematoma. He noted that it remained mildly to moderately tender to probe pressure at that time.

19. Dr Schellenberger also thought that the plaintiff might have fractured her coccyx, but this turned out not to be the case. The plaintiff had constant soreness in the coccyx area of the low back which especially bothered her on prolonged sitting, when Dr Schellenberger first saw her in January 2003, but this had resolved by her next consultation in November 2004. Dr Schellenberger's opinion by then was that the plaintiff's low back pain was caused by aggravation of pre-existing age-related lumbo-sacral disc degeneration and spondylosis, caused by the motor vehicle accident. The low back had stabilised but would never recover fully, and the plaintiff would be left with permanent partial incapacity, preventing heavy lifting and carrying, repetitive bending and twisting, prolonged standing and prolonged sitting. The plaintiff's exposure to continuing lumbo-sacral disc degeneration and spondylosis had been increased by the motor accident.

20. Dr Schellenberger noted complaints by the plaintiff of neck and shoulder symptoms but thought that these had developed too late to be related to the motor accident.

21. The plaintiff was assessed in December 2003 by Dr W M Wearne, orthopaedic surgeon, at the request of the solicitors for the defendant. Dr Wearne noted that the plaintiff had returned to walking, but for only half an hour each day. She was able to cope with her cooking and other housework in her own time, and said that her husband was able to do the small amount of work necessary to maintain the lawn and garden. Dr Wearne generally agreed with Dr Schellenberger as to the aggravation of the condition of the lumbo-sacral spine and he accepted the radiological opinion as to the right thigh. He thought that the injuries would have caused significant pain and a significant period of incapacity. The pain had slowly abated in severity. The condition of her right thigh had stabilised and would remain the same for the rest of her life. Her low back pain was continuing to improve and he thought would continue to do so for a further six months. She required no treatment apart from the occasional non-prescription painkiller.

22. In March 2005 the plaintiff was seen by Dr S Stern, psychiatrist, who diagnosed an adjustment disorder with anxiety, caused by the motor accident. She did not need antidepressant or tranquillising medication, and Dr Stern did not feel that psychological or psychiatric treatment would be helpful by that time.

23. The plaintiff is able to communicate in English at the day-to-day colloquial level, but gave evidence through an interpreter. Although she did not volunteer a great deal in chief about her pre-accident back problems, I found her generally an honest witness and a genuine person. The accident was a frightening and traumatic experience for a lady of her age. She has been subjected to a lengthy period of pain and restriction in her activities. Though she is now very much improved, she continues to experience low back symptoms which I accept are at a much greater level than before the accident. Whilst her low back was likely to deteriorate in any event, the process has been accelerated by her injuries.

24. She has been left with a tender and deformed right thigh which will remain in its present condition permanently. She has, in addition, been left with a permanent mild anxiety adjustment disorder. She is apprehensive when crossing the road and always uses a pedestrian crossing, and she gets upset if she sees anything to do with a motor accident.

25. The impact of an accident of this kind must be regarded as very much greater for someone of the plaintiff's age than it might be for a younger person, who might be expected to be both physically and mentally more resilient. It seems to me that an appropriate award for general damages to compensate the plaintiff for her pain and suffering and loss of enjoyment of life is $45,000.00. I apportion $25,000.00 of this to the past, generating interest of $2,000.00, taking account of the fact that the past component is heavily weighted towards the weeks and months immediately after the accident.

26. Mrs Cirina's treatment expenses are agreed at $1,413.20, including $1,145.00 already paid by the defendant's insurer. There is no claim for interest on treatment expenses. I allow $500.00 for future expenses.

27. The plaintiff claims damages for the value of the services provided by her husband and daughter to her, and in respect of domestic services she has been unable to perform. As one would expect, the evidence does not lend itself to a mathematical calculation of the value of these services. I am satisfied that the plaintiff needed help in the early stages, and that her capacity to attend to household responsibilities was greatly reduced in the early period, and remains impaired to some degree. For what is generally called the Griffiths v Kerkemeyer component, I allow $4,000.00 including interest for the past and $2,500.00 for the future.

28. The total of these components is:

General Damages	$45,000.00
Interest thereon	$2,000.00
Treatment expenses -Past -Future	$1,413.20 $500.00
Griffiths v Kerkemeyer- Past - Future	$4,000.00 $2,500.00 $55,413.20

I regard that total as an appropriate reflection of the impact of the injuries upon her.

29. Damages - Elizabeth Csik

Mrs Csik was born on 16 March 1932. She migrated to Australia in 1958 and has lived in Canberra since 1961. She worked as a housemaid until she retired in 1970. She has lived with her husband in the same house in Downer for more than forty years. They have no children. She has never held a licence to drive a motor vehicle, and her husband has always done the driving. She was seventy at the time of the motor accident and is now seventy-three.

30. Mrs Csik was thrown into the air on impact, landing on her left side on the road some distance away. She fractured the left side of her pelvis and her right ankle, and the right side of her head hit the road causing abrasions and swelling. She may have briefly lost consciousness. She says that she also suffered a fracture of her upper denture and that she chipped some of her teeth. The defendant takes issue with this, and I shall return to it.

31. She was taken by ambulance to the Canberra Hospital where she spent more than four weeks as the pelvic fracture required strict bed rest. Her right ankle was put in a half plaster cast, changed a few days later to a full below-knee plaster cast.

32. By the time she left hospital, she was able to walk using a three-wheeled frame, though she had persistent left groin pain. She was provided with a special toilet seat, shower seat and a high dining chair to use at home. The plaster was removed from the right leg after about six weeks. Mrs Csik continued using the walking frame for the next three months, after which she needed a walking stick. During this early period she was totally dependent on her husband who had to do everything for her. A nurse visited each day in addition, to assist with showering and dressing. As she became more mobile, she was referred for physiotherapy once a week, and also hydrotherapy. Gradually her left groin pain eased, but it was many months before she was able to walk independently.

33. During the twelve months prior to the accident, she had been diagnosed with cancer of the left breast, following removal and testing of a lump, and she had just completed a course of radiotherapy a few days before the accident.

34. She recovered fully from the head injury in a short time. She needed an elastic support for the right ankle, which remained swollen and very restricted in movement for a long period. She still has difficulty walking, and continues to experience pain in the left groin extending down the leg, especially on changes of weather. She occasionally needs to take strong painkillers for her left hip pain. X-rays confirm that both her fractures have united in good alignment though with a little boney irregularity around the pelvis. Mild osteoarthrosis has developed in the right ankle. She still has slightly restricted movement in the ankle, which will not improve further and has left her with a permanent partial incapacity limiting her activity on her feet and her ability to walk over irregular surfaces. Her arthritis is prone to progressive deterioration with time and age. It requires no active treatment at present but as it develops will require at the least rest and anti-inflammatory medication.

35. Her left hip remains painful, and plays a part in limiting her capacity for physical activity including, for example, walking up and down stairs. She is prone to progressive post-traumatic arthritis of the hip in the future.

36. She was diagnosed in March 2005 by Dr Stephen Stern, psychiatrist, who saw her at the request of her solicitors, as suffering from an adjustment disorder with mixed anxiety and depressed mood. Dr Stern expresses the opinion that this has been caused by the motor vehicle accident. She is apprehensive when crossing the road and has lost confidence and independence, reducing her enjoyment of life. She no longer uses public transport, and no longer goes for walks in her neighbourhood. She is frustrated by her physical restriction and feels very depressed at times, often being tearful. She still suffers from occasional nightmares about the accident.

37. Apart from the plaintiff's evidence about her dental damage, the only other evidence was a short report by Dr K Huen, her dentist at Dickson. Dr Huen reports that Mrs Csik presented at his surgery on 17 September 2002 with four very decayed and broken down teeth. He advised her that the teeth needed to be extracted and added to her existing denture, and this was done two days later. The report continues "Mrs Csik did not inform the surgery that she was involved in an accident on 6 May 2002 which resulted in the fractured teeth until recently." The report is dated 14 November 2002, and Doctor Huen did not give oral evidence. It is unclear from the report precisely when Mrs Csik mentioned the motor accident, but I am not inclined to place much importance on the question. Her English is imperfect, though she did not require an interpreter to give evidence, and in such circumstances there is always scope for minor failures in communication. There is no reference to dental damage in the ambulance report or the Canberra Hospital admission notes, but this is hardly surprising having regard to the severity of her other injuries. As to the broken denture, it seems to me more likely than not that this happened at the time of the accident. There is no evidence of any other traumatic incident which might have damaged the denture.

38. As to the decayed teeth, whilst there may have been some chipping to these teeth, it seems to me more likely than not that they were already decayed to such an extent that extraction was inevitable regardless of the accident.

39. The motor vehicle collision was an exceptionally traumatic event in the life of this elderly lady. Her injuries were serious, causing extreme pain in the early stages, and permanent pain and restriction of movement in the areas of both fractures leading to a considerable diminution in her capacity to enjoy life. Following so soon upon her breast cancer experience, it is hardly surprising that the accident has caused a psychological condition with symptoms of anxiety and depression. It seems to me that an appropriate sum to compensate the plaintiff for her pain and suffering and loss of enjoyment of life, past and future, is $70,000.00. I apportion this sum as to $40,000.00 for the past and $30,000.00 for the future. I allow interest on the past component of $3,000.00, reflecting the weighting of the past general damages more heavily towards the early period following the accident.

40. Past treatment expenses are agreed at $12,587.95, of which $395.00 has been paid by the defendant's insurer. There is no claim for interest on any part of this component.

41. In relation to future treatment expenses, I note that the plaintiff requires medication from time to time, including painkillers available only on prescription for which purpose she needs to see her general practitioner. I also accept the medical evidence that the arthritis which has already developed in her ankle will progress, and that she is likely to develop arthritis in the region of the pelvic fracture. The arthritis in both areas is likely to require treatment including anti-inflammatory medication and probably also strong painkillers from time to time. As a balancing factor, I recognise that the plaintiff is an elderly lady who has had some health problems in the past and whose health might have been expected to deteriorate over time regardless of the accident. For future treatment expenses I allow $4,000.00.

42. A claim is made in general terms for the commercial value of services provided by the plaintiff's husband, past and future. The evidence does not permit an assessment with any degree of mathematical precision, but I accept that the plaintiff's husband was called upon to look after his wife for many months after the accident, and also to look after himself. This need has reduced over time but is still present to some extent and will continue, probably increasing as the plaintiff's arthritis progresses. At the moment it is limited to the need to drive the plaintiff about from time to time and to attend to heavier tasks around the house which would otherwise have been within the plaintiff's capacity. In the statement of particulars, the plaintiff claims a period of two-months full time care, and thereafter an average of two hours domestic assistance per week. I am satisfied that the average of two hours per week is modest. In the absence of evidence, I adopt the conventional rate of $15 per hour. For the first two months after the plaintiff got home from hospital I allow $4,000.00, and for the balance of the period to date a further $2,000.00. This past component attracts interest at commercial rates which I allow at $1,500.00. For the future I make an allowance of $2,500.00.

43. The individual components of the award are:

General Damages Interest on past component	$70,000.00 $3,000.00
Past treatment expenses	$12,587.95
Future treatment expenses	$4,000.00
Griffiths v Kerkemeyer -past - interest -future	$6,000.00 $1,500.00 $2,500.00 $99,587.95

44. That figure seems to me to reflect appropriately the impact of the injuries on the plaintiff Elizabeth Csik.

45. Conclusion

I have assessed Mrs Cirina's damages at $55,413.20. That amount must be reduced by 15% to take account of her contributory negligence. There will be judgment for her in the sum of $47,101.22. Out of this sum the defendant is to have credit for $1,145.00 being treatment expenses paid by her insurer.

46. The plaintiff Elizabeth Csik's damages are assessed at $99,587.95. This amount must be reduced by 10% to reflect her contributory negligence. There will be judgment in her favour for $89,629.15. The defendant is to have credit out of this amount for $395.00 representing treatment expenses paid by her insurer.

47. 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 Judgment herein of the Master.

Associate:

Date: 17 June 2005

Counsel for the plaintiffs: Mr F M G Parker

Solicitor for the plaintiffs: Gary Robb & Associates

Counsel for the defendant: Mr P D Ryan

Solicitor for the defendant: Philips Fox

Date of hearing: 30, 31 May 2005

Date of judgment: 17 June 2005