Gray v Conroy [2005] ACTSC 81 (23 August 2005)

Last Updated: 14 September 2005

SANDRA LEE GRAY v AMANDA CONROY [2005] ACTSC 81 (23 August 2005)

EX TEMPORE JUDGMENT

Civil Law (Wrongs) Act 2002, s97

Road Transport (Safety and Traffic Management) Act 1999

Australian Road Rules, rule 265

No. SC 577 of 2003

Judge: Master Harper

Supreme Court of the ACT

Date: 23 August 2005

IN THE SUPREME COURT OF THE )

) No. SC 577 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SANDRA LEE GRAY

Plaintiff

AND: AMANDA CONROY

Defendant

ORDER

Judge: Master Harper

Date: 23 August 2005

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $86, 639.92.

2. Defendant to pay the plaintiff's costs.

1. The plaintiff was born on 8 February 1960, and is 44 years of age. She is married with two children, a daughter who is 17 and a son of 15. She works, and worked at the time of the motor vehicle collision in which she was injured, as a special needs bus attendant with ACTION buses. Her husband is the project manager of Chubb Security in Canberra and her son and daughter are still at school. The family lived for many years at Gilmore and moved in late 2003 to a six-acre property at Royalla in New South Wales just across the border from the Australian Capital Territory.

2. The plaintiff's job as a special needs bus attendant involved her travelling on an ACTION bus, a relatively small ACTION bus, I think it was described as a 20-seater, collecting children with disabilities from their homes and driving them to school and in the afternoon home again, and sometimes to other destinations. The plaintiff explained that some of these children are difficult to control, in some cases susceptible to fits and that they sometimes throw things. Her task as attendant was to look after the children, thereby permitting the driver of the bus to attend to her responsibilities, getting them from home to their destination.

3. The collision occurred on 4 April 2003. At that time the plaintiff had been working in the job for almost a year. She and the driver left the depot and picked up some children from Banks, Gordon, Greenway and Oxley. As the bus was proceeding along Newman-Morris Circuit in Oxley a car driven by the defendant emerged from its left at the T-junction of Collocott Street.

4. Evidence was given about the circumstances of this accident by the plaintiff and by the bus driver, Maureen Shoesmith, and also in the defendant's case by Mr Brian Simpson, a retired police officer, who was a next-door neighbour of the defendant and, as it happened, was driving his truck immediately behind the defendant at the time of the collision. There was some issue in examination and cross-examination as to precisely what the plaintiff was doing immediately before and at the time of the collision.

5. There were a number of children already on the bus, and more to collect, and the children each had a bag or satchel. It was the plaintiff's practice to store these satchels at the front of the bus in an area to the left of the driver and forward of the front entry door to the bus. It was the plaintiff's evidence that she, on this occasion and generally as a matter of practice, moved about the cabin of the bus as required, to attend to the needs of the children or to ensure that they were behaving and secured by a seatbelt into their seats. The bus had a central aisle and there were double bench seats on either side of that aisle with fixed lap seatbelts for each of those seats.

6. It seems clear that shortly before this accident the plaintiff had been moving about the bus attending to children and that she had moved towards the front of the bus to put back into position a satchel or bag which had fallen or somehow moved from its position at the front of the bus into the aisle.

7. While she was engaged in this task her evidence is that the driver called out words which put her on notice that an emergency had arisen, a collision was imminent, and that she then tried to get herself into the seat immediately behind the driver. She succeeded in getting into the seat and tried to do up her seatbelt, thought that she had fastened it, but it is clear that it was not fastened by the time of impact. On impact the plaintiff was thrown forward - thrown generally about the bus and, among other things which happened to her, she suffered a conventional whiplash type injury to the neck and she also hit her head on the windscreen of the bus, sufficiently hard to break the windscreen.

8. The driver, Ms Shoesmith, gave evidence in chief that the plaintiff at the time of the impact was sitting in the seat behind her, but on cross-examination she conceded that she could not see that she was there, and that she had been aware that the plaintiff had been standing and moving about the bus shortly before. She also agreed that whilst she thought it unlikely, it was possible that the plaintiff was standing just behind her seat in the aisle shortly before or on impact.

9. Mr Simpson gave evidence that his driving position in his truck was high, sufficiently high to see over the top of the defendant's car, and he had a good view in both directions into Newman-Morris Circuit. The bus was coming from the defendant's right, and thus from his right. He could see in that direction about 300 metres to a crest. When he saw the bus he said that it was about 150 metres to his right. He could see a number of people in the bus, including one who was standing alongside the driver, with that person's hand resting on the back of the driver's seat.

10. He was asked whether that person's position altered as the bus travelled closer and he said that it did not. He identified the person as a female and said that she was standing behind the driver right up until the time of impact, on which she was propelled forward. He saw her head strike the windscreen.

11. The defendant's car in front of him was stationary for some little time. He said that it went through his mind that the defendant was taking too long to move out into the intersection, presumably too long because the bus was approaching at such a speed that if she did not move quickly she would not clear the bus and get to the other side of Newman-Morris Circuit. Indeed, that is what happened. As the bus was relatively close the defendant moved out to make her right turn and the two vehicles collided. It seems that the defendant did not see the bus at all prior to impact. Mr Simpson gave his evidence very impressively, as one might expect of an experienced police officer who has given evidence on many occasions.

12. Taking account of the evidence of those three witnesses, it seems to me likely that the plaintiff was standing or moving in an upright position towards the front of the bus near the driver shortly before impact but that, as she gave evidence, she attempted to sit down when she realised that an emergency had arisen and that she was holding her seatbelt but had not fastened it fully on impact, and that on impact she lost the ability to control what was happening with her own body.

13. Although Mr Simpson's evidence was impressive, I suspect that there was some element of reconstruction involved in it and that at some time prior to impact he saw the plaintiff indeed standing near the driver's seat and that on impact he saw her propelled forward as he said, but I am not satisfied that he had the plaintiff under observation for the whole of the period from when he first saw her until the impact.

14. The negligence of the defendant is admitted. The only issue in relation to liability is contributory negligence. The defendant, in its defence, pleaded contributory negligence, particulars being failing to wear the fitted seatbelt, and a week or so after the defence was delivered, notified the plaintiff's solicitors that an application would be made to amend the defence to add an additional particular of contributory negligence, namely failing to remain seated while the bus was moving. The hearing has been conducted on the basis of both of those particulars of contributory negligence.

15. Counsel for the defendant submitted at the conclusion of the evidence that the Court was bound by the provisions of section 97 of the Civil Law (Wrongs) Act 2002, which provides for a presumption of contributory negligence where the injured person is not wearing a seatbelt. Subsection (1) of that section provides as follows:

Contributory negligence must be presumed if the injured person was injured in a motor accident and was at least 16 years old at the time of the accident and;

(a) was not wearing a seatbelt at the time of the accident, as required under the Road Transport (Safety and Traffic Management) Act 1999; or 

16. The balance of that subsection is not relevant. The section goes on to provide:

(3) For subsection (1)(a), the presumption can be rebutted if the injured person establishes, on the balance of probabilities, that the injury suffered by the injured person was less serious than it would have been if the injured person had been wearing a seatbelt at the time of the accident.

(5) If the presumption is not rebutted, the damages the injured person would be entitled to, apart from the contributory negligence, must be reduced to the extent that the court considers just and equitable having regard to the injured person's share in the responsibility for the injury.

17. The Road Transport (Safety and Traffic Management) Act 1999 does not itself contain any requirement about seatbelts, but includes power to make regulations, including regulations about the use of safety equipment by drivers and passengers. Regulations under the Act give effect to the Australian Road Rules, rule 265 of which provides:

(1) A passenger in or on a motor vehicle that is moving... must comply with this rule if the passenger is 16 years old, or older.

(2) The passenger must occupy a seating position fitted with a seatbelt if:

(a) there is a seating position fitted with a seatbelt that is not already occupied by someone else who is not exempt from wearing a seatbelt; and

(b) the passenger is not exempt from wearing a seatbelt under rule 267.

(3) If the passenger occupies a seating position fitted with a seatbelt, the passenger must wear the seatbelt properly adjusted and fastened unless the passenger is exempt from wearing a seatbelt under rule 267.

18. It is not suggested that the plaintiff was exempt under rule 267 from wearing a seatbelt. It is submitted on behalf of the plaintiff that those requirements about wearing seatbelts are incorporated in the Regulations and not contained in the Act, and that accordingly they are not caught by section 97 of the Civil Law (Wrongs) Act. It seems to me that I must read section 97 as applicable to a requirement to wear a seatbelt under the Regulations made under the Act for the reason that the Road Transport (Safety and Traffic Management) Act came into effect in 1999 and that the Regulations came into effect in 2000, whilst the Civil Law (Wrongs) Act was not enacted until 2002. If the submission of counsel for the plaintiff were to be accepted, section 97(1)(a) of the Civil Law (Wrongs) Act would not have any application. It seems to me clear that the intention of the legislature was that that section apply where there was a legislative requirement to wear a seatbelt.

19. In those circumstances, the presumption arises. I interpolate that where a defendant intends to rely on a presumption of contributory negligence arising under legislation such as the Civil Law (Wrongs) Act, the statutory provisions should be pleaded in the defence, but I am satisfied that the contributory negligence as pleaded permits the defendant to rely on the presumption.

20. The injured person has not established on the balance of probabilities any of the matters which might be adequate to rebut the presumption, and in the circumstances the Court is obliged to reduce the plaintiff's damages to the extent that the Court considers just and equitable, having regard to the plaintiff's share in the responsibility for the injury.

21. Counsel for the defendant addressed at some length about the specific injuries of which the plaintiff complains, arguing that whilst some of those injuries might have been sustained regardless of whether or not the plaintiff was wearing a properly fitted seatbelt, others, notably the head injury on striking the windscreen, would not have happened at all if the seatbelt had been properly worn.

22. I am not sure that the presumption contained in the Act is intended to operate in that fashion. It seems to me that it is implicit in the defence of contributory negligence that the Court must be satisfied that if it was not for the contributory negligence the damage would not have been suffered at all. Here we have a plaintiff who has suffered injuries, for which relevantly there are two causes. One cause is the admitted negligence of the defendant in failing to give way to a vehicle on the right at an intersection, and the other is the presumed negligence of the plaintiff in not wearing a properly adjusted and fastened seatbelt at the time of the impact. The Court's task is to apportion responsibility for the injury between those two causes.

23. I am satisfied that overwhelmingly the cause of the plaintiff's injury was the negligence of the defendant, without which there would have been no collision at all. If the plaintiff had been wearing a seatbelt, that would have done nothing to avoid the collision but would have avoided or more probably reduced the extent of the injuries caused to the plaintiff in that collision.

24. In all the circumstances, it seems to me that a proper apportionment between the plaintiff and the defendant for responsibility for the plaintiff's injuries is 90% against the defendant and 10% against the plaintiff.

25. Following the collision the plaintiff was taken by ambulance to hospital and treated in the Emergency Department. She was discharged on the same day and sent home. Her evidence and that of her husband is that she spent the next couple of weeks in bed unable to do anything for herself, still less for her family.

26. She saw her general practitioner, Dr Meyer of Chisholm, on 7 April 2003, three days after the accident. He noted significant reduction of neck movement in all directions and tenderness over the left scapula and trapezius, and he diagnosed a soft tissue injury to the cervical spine and left shoulder. He also noted that the plaintiff had hit her head and chest in the accident and was complaining of pain in the neck and shoulders, headache and dizziness. She also complained of anxiety and of flashbacks of the accident.

27. The plaintiff continued under Dr Meyer's care. For her anxiety and flashbacks she was referred to Ms Antoinette Harmer, a forensic and clinical psychologist at Deakin who treated her on a number of occasions. The treatment included four sessions of cognitive behaviour therapy, at the end of which she formed the view that the plaintiff had improved very significantly and appeared to have overcome her anxiety problems, although I should say that the plaintiff has continued well after that to be confronted by flashbacks of the accident at a distressing level from time to time.

28. The plaintiff was also referred to the Sports Medicine Centre for physiotherapy and was treated in all 89 times at the centre between April 2003 and September 2004. She has continued to require physiotherapy from time to time since then and will continue to do so, I find, for another two or three years into the future before it can be said that she has made a recovery from her injuries.

29. Her evidence is that she noticed some symptoms in her left upper central incisor tooth following the accident, although I note that she did not report this to doctors. However, I accept her evidence in that regard. By way of background, she had chipped that tooth in 1983 and the tooth had later been capped. The cap had broken in 1999 while she was eating, and again in 2001 when she was undergoing a general anaesthetic. Whilst she required no immediate dental treatment after the bus accident, in late September 2003 the tooth, which was a crown on a post, came out.

30. She saw her dentist, Dr Kerrigan at Chisholm. He noted that a small amount of tooth had been lost and thought that there was a possibility of a vertical root fracture, though he could not see this. He re-cemented the post crown. He thought it possible that the accident had caused some damage to the tooth and said that if there had been a vertical root fracture the tooth would eventually be lost.

31. If that were to happen it would have to be replaced initially with a denture and then with an implant-retained crown, at a cost which might be as high as $4,000, $5,000 or more. However, there is no evidence that there was a vertical root fracture and the evidence is that the treatment in September 2003 so far has been effective in maintaining the tooth in practical terms. I note the opinion expressed by Dr Brooder, a consultant neurologist who saw the plaintiff at the request of her solicitors in February 2004. Dr Brooder said that it would appear likely that at the time of the accident in April 2003 there occurred a further injury to the tooth which subsequently resulted in the loss of the post and crown. I take the point made in submissions by counsel for the defendant that Dr Brooder is a neurologist and not a dentist, but he is a registered medical practitioner with the usual basic qualifications and I would regard him as having the requisite expertise to be able to express that opinion. I think on the evidence it is more likely than not, in the absence of any evidence about any other trauma to the tooth or any other event which might have resulted in the loss of the tooth in September 2003, that its loss was causally related to the trauma of the bus accident in the previous April.

32. Having said that, there is no reason to suppose that that trauma to the tooth has made it any more likely that future dental treatment will be required. As I said, there is no evidence that there was a vertical root fracture of the tooth at that time.

33. Dr Brooder who, as I have said, saw the plaintiff for medico-legal purposes, noted that the plaintiff had been able to return to part-time employment as a bus attendant, and thought it likely that her symptoms would continue to improve slowly. He thought that there was a reasonable prospect that with future treatment and the passage of further time improvement would continue. He thought that she might require continuing treatment for the next two to three years, but that her long-term prognosis was reasonably favourable. She might remain subject to continuing intermittent cervical pain syndrome and recurrent headaches. She had early degenerative changes radiologically demonstrated at the C5-6 level. Dr Brooder thought those changes would continue to deteriorate slowly over time and that the plaintiff would develop osteoarthritis of the cervical spine. I should interpolate that there is no evidence that the plaintiff had any symptoms emanating from the degenerative changes to the cervical spine prior to the collision.

34. She was seen in May 2004 by Dr WJ Coyle, Orthopaedic Surgeon, at the request of the solicitors for the defendant. Dr Coyle noted that the plaintiff suffered mild concussion in the accident and had widespread pain for some months which, by the time he saw her, had largely resolved and localised itself to the left side of the neck and the left scapula region, though the headache had not improved. He thought that the headache had been a post-concussive headache, accompanied by soft tissue injuries, especially to the neck, which had possibly aggravated pre-existing cervical spondylosis. He was not convinced that her constant headaches were related to the cervical spine and thought it more likely that the headaches were post-concussive and due to the blows she received to her head when it struck the windscreen of the bus. He thought that the likely prognosis for eventual complete recovery was good, including recovery from the headaches.

35. In April this year the plaintiff was reviewed at the request of her solicitors by Dr Owen White, a neurologist. Dr White agreed that there had been some pre-existing spondylosis which had become symptomatic as a result of the accident. He thought also that the plaintiff had suffered occipital neuralgia, which was probably related to trauma to the greater occipital nerve at the time of the accident. He expressed the opinion that she might benefit from a local cortisone injection into the region of the greater occipital nerve or perhaps from TENS stimulation or acupuncture. The plaintiff did give evidence that she had had acupuncture in the earlier stages of her treatment, but I am not sure that she had had acupuncture to the area focused on by Dr White.

36. Dr White also picked up significant symptoms of anxiety and difficulty coping with stress. He thought that she might be suffering from a moderate post-traumatic stress disorder which probably should be assessed by a psychiatrist. Dr White, as I said, is a neurologist and does not profess to have expertise in that area. He thought that her physical condition was stable, with the major problem being her continuing intermittent cervical spine symptoms. He also said that in his opinion the accident had caused some stepwise deterioration in the structural integrity of the cervical spine, as indicated by her increased symptoms related to the C5-6 level. This might predispose her to earlier symptoms from degenerative disease, although there was no way to predict that with any certainty.

37. The only medical evidence which emanated from the defendant was Dr Coyle's report, which was tendered in fact in the plaintiff's case. There was no additional medical evidence tendered in the defendant's case other than some records of the Canberra Hospital on her initial admission.

38. I generally accepted the plaintiff as a truthful witness, and I accept that she continues to suffer from headaches and neck pain, although these are improving. I accept that she was off work for the periods for which she received incapacity payments from Comcare, and that that time off work was directly attributable to the collision, and I accept that she required the treatment paid for by Comcare and the additional treatment which she has paid for as a result of her injuries sustained in the accident. The injuries have caused a significant interference with her enjoyment of life, although she has been able to get back to work. She and her family have an onsite caravan at Burrill Lake on the south coast where they enjoy family holidays, which include water-skiing behind their boat and also tennis and walking. I accept that although the plaintiff has been out on the boat only as recently as last Easter 2005, she has not got back to water-skiing, nor has she got back to tennis. She is able to engage in some walking and swimming but not at the same level of activity as before the accident, and this has meant that she is unable to engage in leisure activities with her husband and with her children as she could before. This has had a significant impact on her enjoyment of life.

39. For those reasons I assess her general damages at $50,000, apportioned as to $35,000 for the past and $15,000 for the future. The past component attracts interest at common law, which I have calculated, without mathematical precision, at $2,000, noting that the past component of the general damages is more heavily weighted to the period immediately after the accident rather than being evenly spread throughout the whole of that time.

40. The past treatment expenses are not in issue. I have made a small allowance for interest at commercial rates on the amount of a little over $2,000 paid by the plaintiff, and I have made an allowance, as I have said, of $4,000 for the future to cover general practitioner attendances about twice a year, the cost of medication including prescription and non-prescription medication and also the cost of future physiotherapy. I have made that allowance on the basis that it is more likely than not that within two to three years the plaintiff will have recovered to the extent that she will not require continuing treatment.

41. The past loss of earnings is agreed at the gross amount paid by Comcare, and for the future I have made an allowance of $5,000 as a buffer to offer some protection to the plaintiff for the possibility that in the future the effect of these injuries, combined with her deteriorating spondylosis, may lead to times when she will need to take periods off work, reflected in loss of income.

42. There is a claim for services provided by the plaintiff's husband and children, pursuant to the principle in Griffiths v Kerkemeyer (1977) 139 CLR 161. The evidence has not permitted a mathematical calculation of an appropriate amount to compensate for that, but I am satisfied that the plaintiff had and continues to have a need caused by the injuries for assistance from time to time in the house. I am satisfied that in the early period, certainly the first two weeks and probably the first few weeks after the accident, the plaintiff required very considerable assistance with most aspects of her life and that since then there continue to be times when she needs assistance with the heavier household duties. I have reflected that need in a generalised allowance for the past component of $2,500, with interest calculated at commercial rates, but again in a broad-brush fashion and taking account of the fact that the past component is weighted more heavily to the period immediately after the accident, of $500, and I have made an allowance of $1,000 for the future in that regard, again on the basis that it is more likely than not that after two or three years the plaintiff should have recovered to the position she would have been in, in any event, regardless of the accident.

43. A summary of those components is:

GENERAL DAMAGES:
Past	$35,000.00
Interest thereon	$2,000.00
Future	$15,000.00
TREATMENT EXPENSES:
Past	$11,313.38
Interest thereon	$200.00
Future	$4,000.00
ECONOMIC LOSS:
Past	$19,753.20
Future	$5,000.00
GRIFFITHS V KERKEMEYER:
Past	$2,500.00
Interest thereon	$500.00
Future	$1,000.00
	$96,266.58
Contributory Negligence Deduction 10%	$9,626.66
	$86,639.92

44. There will be judgment for the plaintiff for $86,639.92. I order that the defendant pay the plaintiff's costs.

I certify that the preceding forty-four (44) numbered paragraphs are

a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 23 August 2005

Counsel for the plaintiff: Mr WL Sharwood

Solicitor for the plaintiff: Baker Deane & Nutt

Counsel for the defendant: Mr IM Newbrun

Solicitor for the defendant: Phillips Fox

Date of hearing: 22 and 23 August 2005

Date of judgment: 23 August 2005