Brajkovic v Black [2006] ACTSC 1 (30 January 2006)

Last Updated: 6 April 2006

BOZACA BRAJKOVIC v NAOMI JUNE BLACK [2006] ACTSC 1 (30 January 2006)

NEGLIGENCE - collision between bicycle and car - car reversing out of blind driveway - plaintiff riding bicycle on footpath - contributory negligence - apportionment.

DAMAGES - personal injury - hip and low back injuries - pre-existing physical and psychological condition - anxiety and depression - no issue of principle.

RP Balkin and JLR Davis, Law of Torts, 3^rd ed, 2004

No. SC 256 of 2002

Judge: Master Harper

Supreme Court of the ACT

Date: 30 January 2006

IN THE SUPREME COURT OF THE )

) No. SC 256 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BOZACA BRAJKOVIC

Plaintiff

AND: NAOMI JUNE BLACK

Defendant

ORDER

Judge: Master Harper

Date: 30 January 2006

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $100,667.

1. On 9 June 1999 a collision occurred between the plaintiff's bicycle and the defendant's car, a two-door Holden Barina hatchback. The plaintiff claims damages for personal injuries. The accident happened between 12.30 pm and 1.00 pm on Wednesday 9 June 1999 in Mort Street Braddon, between Girrahween and Elouera Streets. Mort Street runs north-south. The plaintiff was riding her bicycle south along the footpath on the eastern side of the road. The defendant was reversing her car out of a driveway on the plaintiff's left. The eastern side of Mort Street in the area is characterised by two-storey buildings built to the building alignment. The footpath is concrete from kerb to building alignment and is about 6 metres wide. It is planted with trees at regular intervals, each tree being about halfway between building alignment and kerb. Fronting Mort Street on its eastern side in the general area are automotive businesses, a bicycle shop and a bakery with outdoor tables on the footpath for customers. Photographs tendered in the defendant's case show vehicles parked rear to kerb, signs, bicycles, chairs and tables on the footpath in the general area. I am unable to arrive at a positive finding on the evidence that there were vehicles parked on the footpath in that manner on the day of the accident, though I am satisfied that a little south of the collision site there were tables and chairs on the footpath for bakery customers.

2. It is clear from the photographs that there are two driveways adjoining each other, framed by the adjoining buildings to their sides and above. The northerly of the two driveways is equipped with a large convex mirror, which would enable persons approaching from the north to see into the driveway, and drivers to see out. The southerly driveway is not so equipped. It provides access to an open parking area surrounded by buildings.

3. The defendant was employed at the national secretariat of the Australian Dance Council, in one of the buildings surrounding the carpark. She had been working there for about eighteen months, and travelling to work by car for the past year. She had arrived at her accustomed time of about 8.00 am, and parked, nose to the wall, in the carpark which was then relatively empty. She came down at lunchtime to go out. Because of other parked cars, she was unable to turn around to drive out of the carpark forwards. She decided to reverse out. Her evidence was that she reached a point where the rear of her car was level with the building alignment, stopped and sounded her horn twice. She was stationary for twenty or thirty seconds from the time she sounded her horn until she moved out of the driveway. She was aware that the bakery, two doors south of the driveway, was very busy at that time of day. She was aware of pedestrians behind her. Her recollection was that three pedestrians walked behind her vehicle, in opposite directions, whereupon she proceeded slowly to reverse out of the driveway. As she did so, she was looking over her left shoulder. She estimated that she had travelled about one and a half metres when she saw a body go into her rear passenger side window. She stopped immediately.

4. The defendant was a little hazy as to precisely what happened immediately after the accident. She helped the plaintiff up and took her to hospital. She reported the collision at a police station later in the day. She told the police that the plaintiff was wearing a bicycle helmet, though her recollection when giving her oral evidence was that the plaintiff had not been wearing a helmet.

5. The plaintiff also reported the accident to the police, though it is not clear from the police report when she did so. The description given by the plaintiff to the police was as follows:

On Wednesday 9 June 1999 I was riding my bicycle towards the Australian National University. The day was a bit foggy so I was riding slowly. Then I was struck by the car. I can't describe the type of car, but I remember the colour as something like yellow. This car was coming out of the garage and hit me on my left side when I was still in the pedestrian pathway. After that the driver of the car took me to the Canberra Hospital at the Emergency Department. I was kept in for observation for four hours. The accident happened at about 12.30. At the hospital I was given medication for the pain as I was in great pain. I asked to be discharged to the hospital at about 8 pm as I was very worried about my son. The day after the accident I wanted to report it to the police station but I was feeling very sick. I had breathing difficulties and felt nauseous and unwell.

I think it likely that the plaintiff made this report within a few days of the accident.

6. Whilst it is clear that the defendant's version at all times has been that she was reversing at the time of the collision, there is some confusion as to the plaintiff's case in this regard. In the originating application, it was asserted on the plaintiff's behalf that whilst riding a bicycle she was hit by a car reversing out of a driveway. She was cross-examined about an NRMA claim form in which it was stated that she had collided with a car reversing out of a driveway. She agreed that she had signed the form but said that the substance of it was not in her handwriting. The form was not tendered and there was no evidence of its date. By the time of the hearing, the plaintiff's evidence was that the car with which she collided was proceeding forward out of the driveway.

7. The plaintiff was born in Croatia and came to Australia at the age of 31. Her spoken English is imperfect. She gave evidence without an interpreter and it was clear on numerous occasions that she misunderstood questions. In the absence of any other explanation, I am inclined to the view that the assertion in the claim form and pleadings may have been due to a misunderstanding between the plaintiff and her then solicitor, who presumably would have had the benefit of the defendant's description of the accident in the police report.

8. The plaintiff's oral evidence was that she was riding her bicycle to the Australian National University to return a library book. She was coming from the government flat where she was then living, in Henty Street, Braddon. She had had the bicycle for about two years and regularly rode it from home to the university. She was not wearing a helmet: her helmet had been stolen while she was shopping the day before. She said that she was riding at a normal speed, not fast, along the footpath. She was aware of passing the two driveways. She passed the first driveway, heard "beep, beep" and "just unexpectedly was hitting by the car and hear beeping and after beeping I was in the floor." She had been riding slowly because there were pedestrians about. She did not see the car before impact and could not estimate its speed. She thought she lost consciousness for a few moments and remembered feeling pain in her entire body, particularly the left side upon which she must have fallen.

9. The plaintiff could not recall whether there were cars parked on the footpath on the day of the accident. She said usually there were cars parked there. She estimated that she was riding about a metre and a half out from the building alignment. It was put to her in cross-examination that she collided with the passenger side of the car and not the driver side. Her reply was that she could not give an answer because she did not remember exactly. She thought that it was impossible to reverse a car out of that driveway, or at least that it was very unusual to attempt to do so. She recalled that it was foggy and that the weather was unpleasant.

Liability

10. I accept the evidence of the defendant that she was reversing out of the driveway at the time of the impact. There was no damage to her car and I am unable to be satisfied either that the bicycle ran into the side of the car or that the back of the car ran into the bicycle. Having regard to the lack of damage, it seems to me likely that the impact was between the car and the plaintiff's body rather than the bicycle itself, and it seems to me likely that the plaintiff's body came into collision with the passenger side rear corner of the car. I accept that the car was reversing very slowly and that the defendant was able to stop as soon as she realised there had been an impact.

11. Some apparent inconsistency arises from the plaintiff's evidence that she heard a beep-beep sound at or immediately prior to the moment of impact. I accept the defendant's evidence that she stopped with the rear of her car level with the building alignment and sounded her horn twice. I accept that some pedestrians passed and that about half a minute elapsed before the defendant took the view that the way was clear and started to move again. Even accepting that the plaintiff was riding her bicycle at a very moderate speed, she must have been a considerable distance back from the point of impact half a minute before. I am satisfied that the sound she heard was not the sound of the defendant's horn as described by the defendant in her evidence. It is possible that coincidentally a similar sound emanated from another vehicle, perhaps on the street. In any event, it is clear that whatever the source of the beep-beep heard by the plaintiff immediately prior to impact, it came too late for her to brake or take evasive action.

12. A driver in the position of the defendant owes a very high duty of care to other road users. The defendant was engaged in a manoeuvre attended by considerable danger. She was reversing out of a blind driveway. Although her car was a small one, it was inevitable that part of its rear would protrude on to the footpath before she was able to see whether there was any oncoming pedestrian or cycle traffic in either direction. It has not been pleaded or submitted that the plaintiff was in breach of any traffic legislation or rule in riding her bicycle on the footpath. A driver must be taken to be aware that there may be cyclists on a footpath, just as there may be pedestrians, joggers or roller-bladers. The danger inherent in the manoeuvre by the defendant is illustrated by the very collision which occurred. Whilst I accept that the defendant had a responsibility to keep a lookout to both sides and to her rear, the fact that she did not see the plaintiff or her bicycle prior to impact suggests that she cannot have been keeping a proper lookout. It was patently inadequate for her to sound her horn only once, thirty seconds or thereabouts prior to moving from her stationary position. She should have sounded the horn again immediately prior to moving, and this probably would have been enough to avoid the accident. It would have given the plaintiff time to brake or change direction or both. Ideally the defendant ought to have stopped and sounded her horn again after moving a short distance on to the footpath, and moved backwards a short distance at a time until she was in a position to look along the footpath in both directions. I am satisfied that the defendant was negligent.

13. Equally, a cyclist using a footpath crossed by vehicular driveways is under an obligation to take reasonable care for her own safety. In retrospect it can be seen that it was hazardous to ride, even at a modest speed, past a blind driveway only 1.5 metres from the building alignment. If the footpath was clear, the plaintiff should have moved to her right to give herself greater distance from the driveways as she passed them. If this was not possible, she should have at the least sounded her bell and reduced speed, and perhaps even stopped and walked past these areas of danger. I am satisfied that if the plaintiff had been taking proper care for her own safety, the accident could have been avoided, and hence that the plaintiff was guilty of contributory negligence.

14. Balkin and Davis in Law of Torts, 3^rd ed 2004 at paragraph 10.17, refer to the line of authority in running-down cases which tends to hold a motorist, who is capable of doing considerable damage to a pedestrian, more culpable than the pedestrian in circumstances where otherwise it might appear on the surface that each had made an equal contribution to causing the collision, so that it would normally be just and equitable to apportion less responsibility to a cyclist than to the driver of a motor vehicle: see the cases cited by the learned authors at notes 117 and 118. Regardless of this, it seems to me that the driver of a vehicle reversing out of a blind driveway bears a particularly high level of responsibility. Each case depends upon its own facts, and the question of apportionment is ultimately one of judgment and discretion. In the present case it seems to me that the plaintiff's damages should be reduced by one third to take account of her contributory negligence.

The plaintiff's pre-accident history

15. The plaintiff was born on 18 February 1955 in Croatia. She came to Australia in 1986, aged 31. She was 43 at the date of the accident and is now 50. She qualified in Croatia as a community nurse and married, having two children in 1982 and 1983 and a third after the family moved to Australia in 1989. It seems that her husband was schizophrenic and also had problems with alcohol. In October 1989, about four months after the birth of her third child, they separated. They have since divorced.

16. After moving to Australia, she found work as a cleaner at Duntroon. In February 1987, she slipped and fell at work while using an electric polisher, suffering bruising to both legs. She saw a general practitioner and was given a certificate for a week off work. She decided not to go back to work after this incident, and stayed at home to look after her family.

17. It became apparent during the course of the hearing that the plaintiff had a range of physical and psychological problems during the years leading up to the accident. She gave evidence in chief of some incidents but most came out during cross-examination from hospital and medical records. I did not form the opinion that the plaintiff was deliberately trying to hide her past medical history, but rather that much of it was not in the forefront of her mind when giving instructions to her solicitors and counsel of the matters which were to form the basis of her evidence. By way of example, there is a note that on 15 June 1987 the plaintiff presented at the Melba Health Centre with complaints of loin pain accompanied by vomiting and fever. She was hysterical and was considered unwell enough to be admitted to hospital.

18. From 1993 to 1997, the plaintiff's general practitioner was Dr Goonerage at the Jamison Centre, Macquarie. His records include many complaints of left loin pain and low back pain, at times sufficiently severe to warrant attendances at the emergency department at Calvary Hospital. Dr Goonerage also recorded symptoms of tension, anxiety, depression and disturbed sleep. A pars interarticularus defect at L5 on the left was detected on X-ray in June 1993, and the plaintiff was referred for a course of physiotherapy for low back pain. She suffered at about that time from glandular fever which seems to have developed over time into chronic fatigue syndrome.

19. She also suffered over a period of years from recurrent urinary tract infections. She complained from time to time of severe pain in the left upper quadrant and left loin area and was treated at Calvary Hospital on a number of occasions for this complaint. She was referred to various specialists who were unable to establish any cause for the persisting left-sided loin pain, which was described as consistent with loin pain haematuria syndrome by Dr Gavin Carney, nephrologist, in mid-1995. The plaintiff is recorded at one attendance at the hospital in April 1996 as saying that her pain in the left loin and left flank had been present since the birth of her second child in Croatia in 1983.

20. The plaintiff was referred to a psychiatrist, Dr Juliet Gibson, in February 1997. Dr Gibson diagnosed an adjustment disorder with unhappy mood and moderate anxiety, related to difficulties of socio-cultural integration. This fell short of mental illness. Dr Gibson proposed a program of psycho-social integration including improvement of English skills, involvement in a women's interest group and relaxation techniques.

21. The plaintiff also suffers from varicose veins in both legs. In February 1997 she saw a vascular surgeon, Dr Stephen Bradshaw. His view was that the varicose veins were not responsible for any of the plaintiff's pain or other symptoms.

22. During 1997 the plaintiff left Dr Goonerage and became a patient of Dr Soo and Dr Yuille at the Interchange General Practice in Canberra City. They referred her to Dr Patrick Cullen, a psychiatrist at the Canberra Hospital, in November 1997. He noted that the plaintiff's psychological condition had become much worse when her sister Rosie arrived in Australia from Bosnia during 1995, bringing news that family members had died some months or years earlier during the fighting in the former Yugoslavia. The plaintiff's psychological condition had also been worsened by the explosion of a gas hot water service at her government house during 1994, which may also have affected her hearing.

23. Dr Cullen had some difficulty in obtaining an accurate history from the plaintiff. He said that she idealised her early life and her relationship with her father but spoke of harsh treatment by her stepmother, of rape, and of being forced to marry. He thought that her story was suggestive of paranoia and assessed her as depressed and histrionic though not psychotic. Her preoccupation with aches and pains was consistent with dysthymia in a person of vulnerable personality. He advised an increase in her anti-depressant (Deptran) medication.

24. The plaintiff had numerous consultations during 1997, 1998 and early 1999 at Dr Soo and Dr Yuille's practice. It appears that in March 1999, she again changed general practitioners, and went to Dr Maria Cox. To illustrate the pattern of her general practitioner attendances, she went to Dr Soo's practice on 6 January, 7 January, 19 March, 8 April, 13 April and 15 April 1999: and to Dr Cox's practice on 6 March, 8 March and 9 March 1999. During that period she was generally complaining of tiredness, back and loin pains, and depression. Of the last couple of attendances prior to the motor accident, that on 13 April seems to have been about a skin problem and on 15 April about loss of appetite, symptoms down the left side of the body, and a sore throat and cough.

25. The plaintiff's evidence is that after giving up work following her fall at Duntroon in 1987, she went back to work as a housekeeper at the Jamison Inn in about 1994. She also did some casual work in the kitchen at a restaurant, the Turkish Pide House at Belconnen, from about 1996. Her evidence was that when her youngest child was about 8 years old, she stopped work. This would have been in about 1997, so that she had not been engaged in remunerated employment for about two years before her bicycle accident. The only documentary evidence about pre-accident employment consisted of a notice of assessment from the Australian Taxation Office for 1995-6 which showed a taxable income of $6,940, attracting no tax; and three payslips dated 12 June, 19 June and 26 June 1998, each for $330 less tax of $43, a net amount of $287. The payslips did not identify the employer and the plaintiff could not recall whether they related to the Jamison Inn or the Turkish Pide House. I can infer from the payslips that the plaintiff worked at least for those three weeks in June 1998 but cannot infer from them that she worked for any other part of that year. I found the plaintiff's evidence about periods of employment and levels of income prior to the accident to be vague and not particularly helpful. On a number of occasions during the years leading up to the accident, her occupation was recorded by doctors and hospitals as pensioner, student or home duties. All I can really be satisfied of is that the plaintiff had some earning capacity prior to the bicycle accident and that she exercised it from time to time.

The plaintiff's medical history subsequent to the motor accident

26. The Canberra Hospital records show that the plaintiff presented at 1.19 pm on the day of the accident and was assessed by a triage nurse at 1.50 pm. The assessment reads as follows:

Push bike rider hit by car at moderate speed. Not wearing helmet. Nil LOC. Nil neck tenderness. CO severe LUQ pain and nausea. Tender on palpation. Pale and distressed. Direct to acute.

It is agreed that the abbreviations stand for "loss of consciousness", "complained of" and "left upper quadrant".

27. The nursing notes record a complaint of pain in the left lower chest, back and loin, with the pain becoming progressively worse. The plaintiff was noted to be very distressed. General bruising was recorded with contusions to the left side of the chest. There was also bruising to the right upper tibia area.

28. The day after the accident, the plaintiff attended the rooms of a Dr Pratt, another general practitioner. Dr Pratt took a history of the accident. He found that the plaintiff was very tender over the lower left ribs below the costal margin. There was bruising to both legs around the knees, and to the left ankle which was painful and tender. The plaintiff came back and saw Dr Pratt on another three occasions during June 1999, and saw him a further four times in the following two months. Dr Pratt did not give evidence orally or by written report and his notes are not easy to read.

29. During this period the plaintiff also went back to Dr Cox, seeing her on 27 July 1999 for the first time after the accident. She continued under Dr Cox's care until late 2000.

30. A week after the car accident, on 15 June 1999, the plaintiff was taken by ambulance to Calvary Hospital. The ambulance report records pain on the left side in the lower rib and left kidney region. The plaintiff told the nursing staff at the hospital that she had been in pain in the left loin and right upper quadrant (the latter must have been a mistake by the hospital staff) since the bicycle accident.

31. To complete the picture emerging from the hospital and ambulance records, the plaintiff attended Calvary emergency department on 15 June 2001 with left sided back pain and upper leg pain of short duration. In February 2002 she was taken by ambulance to Calvary following a fall at a supermarket where she landed on her left hip. She presented with moderate pain in the left hip and also in the left ankle. X-rays were essentially normal and she was kept under observation for a time but not admitted as an inpatient. She was given morphine before being sent home. (The plaintiff gave evidence that she did not make any claim in respect of this incident. She would appear now to be out of time to do so.)

32. She had a further attendance in February 2003 at the hospital. She complained of left upper quadrant and chronic back pain which she related to the bicycle accident three years earlier.

The expert medical evidence

33. A number of medical reports were tendered on behalf of both parties. Two of the plaintiff's treating practitioners were cross-examined by telephone.

34. Dr Maria Cox, one of the plaintiff's general practitioners, said that she first saw the plaintiff following her accident on 27 July 1999 when she complained of persistent pain in the upper left back and shoulder. She exhibited marked tenderness over the T12, L1, L2 and L3 vertebrae with a reduced range of movement in the lumbar spine. A CT scan of the lumbar spine performed in August 2000, by which time the plaintiff was still tender over the left trapezius and latissimus dorsi muscles, showed small disc bulges at L4-5 and L5-S1. Dr Cox thought that these were unlikely to be contributing to her pain, which she attributed to soft-tissue damage. She prescribed anti-inflammatory medication and physiotherapy.

35. By October 2000 the plaintiff was continuing to complain about left hip pain. Dr Cox found signs of left greater trochanteric bursitis, and this was confirmed by ultrasound. The plaintiff was definite in relating this pain to her bicycle accident but she had not complained to Dr Cox of it until a year after it. In view of that delay Dr Cox found it difficult to relate the pain definitely to her accident. She referred the plaintiff to Dr Robert Still, a sports physician and arthroscopic surgeon, who injected the left trochanteric bursa under ultrasound control with a cortico-steroidal solution, a standard treatment for the condition.

36. By late 2001, the plaintiff was continuing to complain of inability to lie on the left side in bed at night, and had recently started using crutches to walk. Her condition was complicated by high levels of anxiety and depression which were of long standing but seemed to have become worse over recent months, causing the plaintiff to focus more on her physical complaints. Dr Cox found it difficult to assess the plaintiff's condition accurately, having regard to her rather dramatic presentation and limited English skills. She was of the view in late 2001 that the plaintiff had suffered a contusion to the left chest wall in the bicycle accident, and that her problems with the lumbar spine and left pelvis were probably a result of that accident. The left trochanteric bursitis was more problematic but Dr Cox thought it possible that her delay in reporting those symptoms might have been due to the fact that they were relatively minor initially, and gradually worsened over a period of months to a point where they became distressing. Dr Cox thought that the plaintiff's chronic pain, disability and isolation had caused an exacerbation in her longstanding depression and anxiety to the point where she had become unable to continue her university studies and spent most of her time at home. Her prognosis for recovery was relatively poor, though she might in Dr Cox's view be helped by referral to a multi-disciplinary pain management program. Such a program would be likely to improve her quality of life and functioning substantially though she might never be pain-free.

37. Dr Cox referred the plaintiff in August 2001 to Dr David McGrath, a musculoskeletal and occupational physician. She attended his rooms using crutches. She was very anxious to the point of extreme distress. Dr McGrath felt that the plaintiff had a modest spinal problem with a fairly large hemi-pelvis problem, probably involving irritation of the sciatic nerve. He noted that her left trochanteric bursitis had been confirmed by ultrasound. He recommended use of a hydrotherapy pool though he acknowledged that the pool at the Canberra Hospital had a long waiting-list. He noted that the plaintiff had suffered from chronic back pain for many years. He thought that it probable that the bicycle accident had caused the plaintiff's painful left hip condition. She required treatment for her high levels of anxiety, something outside his area of expertise, and for her physical condition she should have exercise, preferably in a swimming pool initially.

38. Dr McGrath did not continue as a treating doctor. She saw him again at the request of her solicitors in early 2005. She was by then using a walking stick and favouring the left leg. He found it difficult to take a proper history from her because of anxiety and language difficulties. He expressed the view that the bicycle accident contributed to the plaintiff's problems but was neither the sole nor necessarily the major cause of her condition in 2005. The development of the left hip bursitis most closely correlated in time with the accident and had the greatest causal connection. Most of her disability, about 60% on a quantitative basis, stemmed from her lumbar spine which would itself have an indirect effect on the left hip. Her treatment and management had been piecemeal and interrupted, and it was regrettable that she had not received continuity of care and exploration of useful strategies. It was difficult to see her returning to normal health and employment status for several years even with good management. Her problems were chronic and deep-seated and complicated by considerable psychological reaction to her physical disabilities and other aspects of her life.

39. Dr McGrath was cross-examined by telephone. Much of the plaintiff's pre-accident history of medical and hospital treatment was put to him. Generally he said that it was consistent with the history he had been given and did not alter his opinion. He had been unaware that she had fallen at a supermarket in February 2002 and again injured her left hip, and he accepted that some of her continuing hip problems were attributable to that fall rather then to the bicycle accident. He thought that with proper care and treatment in the future, the plaintiff could improve to a level where she might be able to return to some form of paid employment, though he conceded that this opinion related purely to her physical condition and that it was not his field to express a view on the psychological component. He agreed that a high level of anxiety was often a barrier to physical recovery.

40. In mid-2002 the plaintiff was referred by Dr Cox to Dr EJ Cassar, consultant physician. She presented in a very stressed state with agitation, emotional lability and loss of confidence. She complained of chronic back and left hip pain which she attributed to the bicycle accident in 1999. Dr Cassar referred the plaintiff to a psychologist, Mr Marshall O'Brien, for assessment and psychotherapy. Dr Cassar arranged an MRI scan of the lumbar spine which detected posterior annulus tears at L3-4 and L4-5 and a small midline posterior disc protrusion at L5-S1, with potential neural compromise at each level. There was also mild osteoarthritis at L5-S1. He records that in late 2002 the plaintiff was assessed and treated by an orthopaedic surgeon, Dr Aubin, for her left hip and generalised chronic pain syndrome: no report by Dr Aubin was in evidence. Dr Cassar treated the plaintiff with anti-inflammatory and depo-steroid medication and painkillers. He thought that the plaintiff might benefit from spinal facet joint and foraminal blocks under CT scanning. Apparently this did not take place.

41. Dr Cassar's view, in a report of October 2003, was that the plaintiff's symptoms and disabilities were contributed to by the bicycle accident in 1999. She was at that time incapable of returning to any form of work though it was possible that she might, after treatment, be able to return to non-labouring, non-income-producing charity work on a casual basis. Her long-term prognosis was pessimistic. He could not see her returning to permanent work for even as few as eight hours per week.

42. Mr O'Brien first saw the plaintiff in September 2002, and continued to see her for twelve sessions. He carried out psychometric testing, and diagnosed a conversion disorder causing anxiety, pain, loss of capacity and loss of self-esteem. His opinion was that these symptoms were a direct result of the 1999 accident. He recommended treatment in the form of cognitive behaviour therapy and pain management, though he noted that the plaintiff could not afford that treatment immediately. In his report he recommended fortnightly sessions for twelve months at a cost of about $5000. He thought that following treatment, from a psychological perspective she would be able in due course to return to some form of paid employment for up to half normal hours, if a job could be found which utilised her capacity for caring, verbal communication and/or art. Over time, he believed that she might be able to return to suitable employment on a full-time basis.

43. Mr O'Brien was also cross-examined by telephone. He clarified his opinion about the plaintiff's level of disability, saying that her symptoms were consistent with the DSM IV criteria for a major depressive episode. The plaintiff's medical history, including the supermarket fall, were put to him in cross-examination, but he adhered to his view that the significant event in the development of her psychological problems was the bicycle accident.

44. Asked about his earlier recommendation of psychological treatment over a period of twelve months he altered his view somewhat, saying that the twelve months was a minimum and that treatment over two years would be preferable, perhaps continuing at a reduced level for another year, or even for as long as five years. This would have the effect of doubling his original estimate of $5000 for future treatment and perhaps trebling it.

45. The defendant relied on reports by two specialist occupational physicians, Dr David Elder and Dr Nicholas Burke. Each saw the plaintiff on one occasion. Dr Elder saw the plaintiff in November 2001 for the purpose of a report to the defendant's insurer. She was accompanied by a social worker. Dr Elder took a history, some of which he dismissed as "frankly unbelievable". He noted exaggerated and abnormal pain behaviour by the plaintiff at the consultation room. He disbelieved her when she said that she used a pair of crutches she had with her, after examining her palms and finding no calluses or reddening. He described her presentation as one of complete exaggeration and abnormal illness behaviour, and the only diagnosis he could offer was "that perhaps of underlying psychiatric issues". He found no physical condition which could explain her presentation. He thought that she required psychiatric assessment but was not completely convinced that this was "due in any way to the consequences to the rather minor bicycle accident". He thought that with appropriate psychiatric help, it would be in the plaintiff's best interests to seek paid employment in the future to help her to return to some degree of normalcy. However, he thought that the prognosis was "rather bleak".

46. Dr Elder appears to have commenced his assessment from a perspective of scepticism and disbelief. He has no psychiatric or psychological qualifications. His opinion is to be contrasted sharply with that of Dr McGrath, the treating occupational physician. I did not find Dr Elder's opinion persuasive and prefer that of Dr McGrath.

47. Dr Burke saw the plaintiff in October 2004 at the request of the defendant's solicitors. She was by then using a walking-stick rather than crutches. Dr Burke expressed the opinion, after taking a history and conducting a physical examination, that her incapacity did not result from any injury sustained in the bicycle accident, which had not affected her capacity to work as a kitchen hand. She required no further treatment for injuries sustained in the accident. She clearly suffered from significant incapacity at the time of her consultation with him, but this was unrelated to the bicycle accident. Any symptoms relating to that accident would have settled within three months, and any incapacity thereafter would have been attributable to her pre-existing condition. He thought that her back symptoms were unlikely to be related to the accident, and noted that her general practitioner, Dr Cox, had taken the view that the injury to the left leg was soft-tissue in nature. He accepted that the plaintiff probably had some soft-tissue injury to the left leg, left chest wall and possibly left shoulder: one would expect such soft tissue injures to have settled within three months. Dr Burke noted that the plaintiff had a pre-accident history of anxiety and depression and found it difficult to relate her psychological symptoms in 2004 to the bicycle accident, though he acknowledged that he is not a psychiatrist.

48. After his written report, Dr Burke was provided with what he described as additional reports from Dr Cox, Dr McGrath, Dr Cassar and Dr Still. He had clearly been provided with some documentation before seeing the plaintiff but his reports do not make clear what material was provided to him. After seeing the additional reports, he acknowledged that the provisional diagnosis of left trochanteric bursitis had been confirmed, and he thought that this was probably a significant source of the plaintiff's symptoms. However, the delay in the development of the symptoms (three months as described by Dr McGrath and twelve months as reported by Dr Cox) created significant difficulties in attributing the injuries to the bicycle accident. On balance, his opinion was that the probability that the accident caused the bursitis was low. He thought that it unlikely that the bicycle accident had caused "significant injury to the lumbar spine".

49. Difficulties can arise in analysing medical reports where their authors are not called to give oral evidence. It is often apparent that the medical approach to causation differs from the approach required to be adopted by a court in assessing damages. It is common ground in the present case that there was an impact between the plaintiff and the defendant's motor vehicle, and that the plaintiff fell to the concrete footpath on to her left side. There is no suggestion of any traumatic incident over the year following the accident which might have provided some other explanation for the development of the left hip bursitis. Notwithstanding the doubts expressed by Dr Burke and Dr Cox, I am satisfied that on the balance of probabilities the left trochanteric bursitis was caused by the plaintiff's collision with the defendant's car and fall to the footpath.

50. Acknowledging that the plaintiff already had a history of low back pain over a number of years, it seems to me an unavoidable conclusion that such an impact must have at the least exacerbated her low back problems, so that it must have been a cause of her increased low back symptoms thereafter for the purpose of the assessment of damages.

51. In the face of the evidence as to the plaintiff's continuing complaints and attendances and medical treatment, I cannot accept Dr Burke's opinion that her injuries were soft tissue only and that she recovered from them within three months. It may well be that the injuries which most people would suffer in such an impact would be limited to soft tissue and could be expected to recover in that period, but even Dr Burke does not suggest that full recovery takes place within that period in every case and here we are dealing with a plaintiff with a pre-existing low back condition and prior symptoms of recurring pain on the left side of the body.

52. It must also be said that the plaintiff was highly vulnerable at the time of the bicycle accident from a psychological perspective. She had suffered for a number of years from anxiety and depression, and had required treatment from time to time by way of medication. She had been subjected to a number of stressors from which most people are thankfully spared. Her evidence is that at the time of the accident, she was generally coping well with life. She was enjoying her university studies and her painting. If the bicycle accident had not happened, no doubt she would have continued from time to time with recurrences of her left loin and left upper quadrant pain, and have required occasional medical and hospital treatment, but this had gone on for a number of years during which she had generally coped quite adequately with life, being able to work as a housekeeper and kitchen hand from time to time, and being able to look after herself and her family with little assistance. I accept Mr O'Brien's evidence which was to the effect that the bicycle collision was in the nature of the straw that broke the camel's back. Since that collision, she has been very much worse both physically and psychologically than before, though she is slowly improving. It may be that with a different regime of treatment, perhaps including a pain management program and psychotherapy, her improvement might have taken place much sooner, but it is not suggested that this is to be laid at her door in the sense that she has failed to mitigate her damages. The interrupted nature of the treatment seems to have resulted in part from her financial position and in part from her imperfect English skills and no doubt also her physical and psychological condition.

53. Generally unchallenged evidence was given by the plaintiff's daughter Maria and son Nicholas and by a friend, Anna Grancaric, corroborating the plaintiff's evidence as to her condition, and setting out details of services each of them had been required to provide to her around the home.

Damages

54. It seems to me that a reasonable sum to compensate the plaintiff by way of general damages for pain and suffering and loss of enjoyment of life is $60,000 of which I apportion $40,000 to the past. I allow $6,000 for interest on the past component, noting that it is weighted a little more heavily towards the period immediately after the accident.

55. In respect of past treatment expenses, the plaintiff claims $6,483.80. It is acknowledged that this represents the total of her treatment since the accident. It includes some amounts for consultations with general practitioners and some chemist expenses. Most of the items I am inclined to allow in full, such as the consultations with Dr Still, Dr McGrath, Dr Cassar and Mr O'Brien. Others I am persuaded that I should reduce because I am satisfied that the plaintiff would have had an ongoing need regardless of the collision to consult her general practitioner and to take medication from time to time. On analysis I am satisfied that the vast bulk of the amount claimed has been made necessary by the bicycle collision, and I allow $6,000 for past treatment expenses. It is not entirely clear from the evidence whether all of this has been paid by the plaintiff, but it appears that most of the amounts have been paid. Those that have attract interest at commercial rates and I allow in that regard $1,500 for interest.

56. In respect of future treatment, I think it likely that the plaintiff will decide to incur the cost of some psychological treatment from Mr O'Brien, though I am very doubtful whether she will choose to spend as much as $5,000 and I think it extremely unlikely that she will elect to continue treatment beyond twelve months. She will also need to see her general practitioner more frequently then would have been the case in the absence of the bicycle accident, and the same applies to chemist expenses. For future treatment I allow $5,000 in all.

57. A claim is made for loss of earnings, both past and future. I note that the plaintiff was not working for reward at the time of the accident, and had probably not done so for about a year. If it had not been for the bicycle accident, I think it likely that the plaintiff would have completed her studies and got back to some kind of income-earning activity by about 2003. I am not satisfied, having regard to her past employment history, that she would have worked full-time or earned significant amounts. There is inevitably an element of speculation in arriving at a figure to compensate her for past loss of earnings in these circumstances. It seems to me that all I can do is arrive at round figures which seem to me proper sums to compensate her for her loss of earning capacity to the extent that she would have been likely to have exercised it. I allow $10,000 including interest for the past, and $15,000 for the future.

58. There is a substantial claim for the commercial value of services provided to the plaintiff and for her benefit by her family and her friends. I am satisfied that the accident caused a need in this regard and that the need has been met by family members and friends. Despite the attempts of the plaintiff and other witnesses to give detailed specific evidence about the services, I am not satisfied that the sum to be awarded is susceptible to mathematical calculation. Adopting a rate of $15 to $20 per hour over the period from the accident to date, it seems to me that an appropriate award for the past is $25,000, in addition to which I award interest of $7,500. In relation to the future, it seems to me that the plaintiff's need for assistance is now very much less than it was in the earlier years, and I award $15,000.

59. The total of the individual components is as follows:

General damages:	$60,000
Interest thereon	$6,000
Treatment expenses:
Past	$6,000
Interest thereon	$1,500
Future	$5,000
Economic loss:
Past	$10,000
Future	$15,000
Griffiths v Kerkemeyer:
Past	$25,000
Interest thereon	$7,500
Future	$15,000
	$151,000

60. This total must be reduced by one third ($50,333) to take account of the plaintiff's contributory negligence. There will be judgment for the plaintiff in the sum of $100,667. I shall hear the parties as to costs.

I certify that the preceding sixty (60) numbered paragraphs are

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

Associate:

Date: 30 January 2006

Counsel for the plaintiff: Mr RJ Mildren

Solicitors for the plaintiff: Stacks with Snedden Hall & Gallop

Counsel for the defendant: Mr IM Newbrun

Solicitors for the defendant: Abbott Tout

Date of hearing: 31 January; 1, 2, 3, February; 17 March 2005

Date of judgment: 30 January 2006