Napper v Abell [2005] ACTSC 64

Supreme Court of the ACT|2005-08-01|Before: Ryan J

1. This is a claim for damages for personal injuries arising out of a motor vehicle accident which occurred at about 5.15 pm on 3 May 2000 at the intersection of Curlewis Crescent and Hartigan Streets Garran in the Australian Capital Territory. Curlewis Crescent, at its northern end, forms a "T" intersection with Hartigan Street which ends in a dead-end or cul-de-sac about 20 metres west of the intersection. The kerb line of Hartigan Street is offset so that the imaginary line, if prolonged across Curlewis Crescent, would not be straight. Another way of describing the location is that the west and east kerb lines of Curlewis Crescent are not uniformly splayed where they form the intersection. At the time of the accident it was dusk, approaching darkness and it had been raining steadily for some time.

2. The plaintiff was driving in a northerly direction in Curlewis Crescent. She approached the intersection and claimed to have come to a stop, intending to make a right-hand turn into Hartigan Street. She then proceeded slowly into the intersection. She had seen the defendant's vehicle, a Toyota Landcruiser ("the Toyota") which was proceeding in a westerly direction on the southern carriageway of Hartigan Street. From the plaintiff's perception, the Toyota was travelling too fast, so she brought her car to a stop with the front protruding perhaps one foot beyond the kerbline into the intersection. According to the plaintiff's account, the Toyota, under heavy braking, slid into her vehicle, colliding with the front driver's side headlight. The plaintiff felt "incredible pressure" or a "tremendous sideways force" on impact. She believed that the brakes on the Toyota had locked and it was no longer answering the steering wheel. According to the plaintiff, the defendant, upon alighting from the Toyota after the accident, apologised, explaining that she was running late to pick up a child from a friend's house in Garran and did not know where she was going.

3. Mr Daniel Bajt was travelling in his own car in Curlewis Crescent about 50 metres behind the plaintiff when he heard a loud thud, looked up and saw the collision. His recollection was that the plaintiff's vehicle was "still two-thirds on" Curlewis Crescent and the Toyota in Hartigan Street was in "an unusual position." He assessed the collision to have been between the front quarter panels of the two vehicles. Mr Bajt regularly passed through the intersection. He recalled that at the time of the collision the natural light was good enough to drive without the headlamps on his vehicle being lit. He had been about 50 metres behind the plaintiff's vehicle in Curlewis Crescent when he heard the thud of a collision. After the collision, he parked his car behind the plaintiff's vehicle which was still "on Curlewis Crescent." He spoke to the plaintiff and then the defendant asking each whether she had been injured. He noticed that the front of the plaintiff's vehicle had been pushed to the left on impact and "the bulk" of the plaintiff's vehicle was still on the Curlewis Crescent side of the intersection - two-thirds of it had not crossed the prolongation of the kerbline. Mr Bajt noticed that the front right quarter panel of the plaintiff's vehicle was "quite damaged." When Mr Bajt arrived at the scene, the two drivers were getting out of their vehicles. The Toyota appeared to be in an unusual position on the intersection but he could not relate it to the centre of the carriageway of Hartigan Street.

4. The plaintiff's vehicle was extensively damaged, sustaining, amongst other things, a fractured radiator, whereas there was no observable damage to the Toyota which was fitted with a bullbar.

5. The plaintiff's husband, who had attended the scene shortly after the collision when summoned by his wife on her mobile telephone, recalled that the impact had depressed the right corner of the plaintiff's vehicle onto the wheel so that he had to hammer out the depression in order to move the vehicle. When Mr Napper drove the vehicle home, the steering was out of alignment and he considered it unroadworthy. Upon arriving at the scene, he had observed that the plaintiff's vehicle was closer to the kerbline than to the centre of the intersection. He estimated the intersection to be 20 metres wide at the point where the accident occurred. Under cross-examination, Mr Napper did not accept that, when he arrived at the scene, his wife's vehicle had been protruding into the intersection. He accepted that his attention on arrival was focused on his wife's physical condition.

6. The plaintiff, when cross-examined, accepted that she had been in a position where she was obliged to give way to the defendant's vehicle. She did not remember whether the Toyota had its lights on. The Toyota had entered Hartigan Street from Gilmore Crescent which is about 100 metres or slightly more east of Curlewis Crescent. When the plaintiff first saw the Toyota, it was 50-60 metres away on the carriageway of Hartigan Street. She believed its speed to have been considerably in excessive of 60 kilometres an hour. The plaintiff denied that, after coming to a stop, her vehicle had "darted" across the intersection. When she first saw the Toyota, she thought that it was approaching to turn into Curlewis Crescent. She denied that, at the time of impact, the Toyota had almost completely stopped. The plaintiff also disagreed with the suggestion that her vehicle had stopped two metres into the intersection before the collision occurred.

7. The plaintiff disagreed with the suggestion in cross-examination that she had stopped two metres into the intersection before the collision occurred.

8. The defendant, Mrs Abel, testified that the headlights of her vehicle, the Toyota, had been on and it was travelling at between 40 and 50 kilometres an hour. When she was about 10 metres away, she had seen an intersection to her left and a vehicle stopped at the intersection with its right-turn indicator on. She had seen no need to reduce the speed of the Toyota as she was not exceeding the speed limit. As the Toyota reached the intersection, the other vehicle "pulled swiftly across the road, then braked heavily and stopped." Mrs Abel braked and tried to steer to the right but the left side of the bullbar on the Toyota clipped the right front corner of the other vehicle. She estimated the other vehicle, upon impact, to be two metres across the prolongation of Hartigan Street. Mrs Abel did not realise that Hartigan Street ended in a cul-de-sac or dead-end beyond its intersection with Curlewis Street. In fact, she thought that she was on Robson Street in which was located the house from which she had been asked by her son to collect him. She described the severity of the impact as "minimal". Mrs Abel acknowledged that the front right mudguard of the plaintiff's vehicle had buckled, pushing the bonnet up a bit and its headlight had been smashed. The bullbar and front bumper bar of the Toyota were pushed back to a small extent and one of its headlights was cracked.

9. The conclusion which I have reached on this issue is based on a composite picture derived from the testimony of the two drivers and the independent witness. It has been filtered by an assessment of the probabilities based on those parts of the evidence which were common ground or which I have accepted. I have not been able, nor have I found it necessary, to conclude that either the plaintiff or the defendant was the more credible witness. Each gave her evidence without a deliberate attempt to mislead the Court but inevitably her perception was distorted by the exigencies of the moment, the shock of the impact and the "halo effect" which, understandably, induces a witness to favour a recollection or reconstruction which casts a more favourable light on his or her own driving or other conduct.

10. I find that the plaintiff wrongly assumed without any indication by way of a left turn signal or otherwise, that the defendant would turn left into Curlewis Crescent. I also find that the defendant's speed was in excess of the 40-50 kilometres an hour which she estimated. I base that finding on the fact that she did not observe the intersection of Hartigan Street with Curlewis Crescent until she was approximately ten metres from it and had not formed an appreciation that Hartigan Street came to a dead-end or cul-de-sac shortly beyond the intersection. I have also been persuaded to that finding in respect of the speed of the Toyota by the severity of the collision, particularly its effect on the plaintiff's vehicle which was concededly stationary at the time of impact. The severity of the impact is also attested by Mr Bajt's hearing from distance of about 50 metres away a loud thud. As well, I have taken into account the inability of the defendant to bring the Toyota sufficiently under control to enable her to swerve to avoid the plaintiff's vehicle, which, even on the defendant's account, was no more than two metres into the intersection when it came to a stop for the second time.

11. The defendant's attempt to swerve was a reasonable response to the emergency created by the plaintiff's failure to give way. However, the defendant's inability to complete the manoeuvre safely in what, I consider, was ample space to do so, signifies a combination of excessive speed in the circumstances and a failure to keep a proper look out. The factors which rendered the defendant's speed excessive in the circumstances included her unfamiliarity with the roadway and general area, the wet conditions and the reduced visibility.

12. In the result, after taking into account the considerations outlined above, I have concluded that liability for the collision should be apportioned equally between the plaintiff and the defendant. It follows that the amount of damages to which the plaintiff would otherwise be entitled, in accordance with the observations made and principles discussed below, should be reduced by fifty per cent for contributory negligence.

13. Immediately after the collision, the plaintiff felt shocked and was stiff but later became aware of pain and discomfort in the area of her neck and shoulders. She obtained some temporary relief from a massage which she had obtained with a gift voucher received as a birthday present on the day of the accident, but, after the pain and discomfort persisted, she consulted a general medical practitioner, Dr Griffiths, on 7 June 2000. Dr Griffiths referred her to Mr Alan Ford, a masseur specialising in sports injuries, who treated her over the ensuing months by gentle massage and stretching.

14. On 24 October 2000, the plaintiff consulted another general practitioner, Dr Stephens, about an unrelated matter and did not mention the accident to him. In November 2000, she consulted, on her own initiative, a chiropractor but, after about three treatments a week apart, she confined herself to stretching and massage from her husband and friends. She next saw Dr Griffiths on 19 February 2001 for a "bee sting". By 2002, she realised that her condition "wasn't going to go away" and resolved to seek more active treatment because her neck, almost immediately after the motor vehicle accident, had developed an involuntary "kick" or spasm which did not resolve but tended to get worse from late 2002 to mid-2003. Her employer's workers compensation insurer referred her to Dr Eaton whom she first consulted in June 2002. He recommended further massage and physiotherapy which she underwent, in the form of mild traction, at the Canberra Physiotherapy Centre. The plaintiff was then referred to Stuart Andrews who embarked on a more interventionist program of stretching exercises to ameliorate the tightness or tension in her neck. The plaintiff described that regime of treatment as "brutal". However, it was ineffective in eliminating or reducing the neck spasm which the plaintiff found embarrassing in social situations and Dr Eaton ordered an MRI scan which was carried out on 20 December 2002. In the light of what that revealed, Dr Eaton ordered the plaintiff to rest and she remained off work until after New Years Day 2003. Dr Eaton then referred the plaintiff to Dr Tuck who, in turn, referred her to Dr Fung at Westmead Hospital.

15. The plaintiff returned to work in February 2003 although she had still not obtained any relief from her neck symptoms. However, muscle relaxants reduced the frequency of the spasms. Dr Eaton again ordered her off work and she remained at home until 28 February 2003. That enforced inactivity was emotionally distressing for the plaintiff because she believed she had worked hard to obtain a respected position. She returned to physiotherapy with Alan Ford and was referred to a clinical psychologist, Mr Jeff Parsons, who suggested eight sessions of counselling but they were not approved, presumably by the plaintiff's employer's workers compensation insurer.

16. The plaintiff returned to Dr Fung in May 2003 by which time she had noticed little change, either physically or psychologically. Dr Fung then recommended Botox injections into the plaintiff's neck. The insurer continued to decline approval of psychological or psychiatric counselling which Dr Fung had recommended. The plaintiff had the first Botox treatment in July or August 2003. It was a painful procedure involving six or seven injections into the base of the neck at one session and afforded the plaintiff no relief. If anything, her symptoms had worsened and she resorted to a soft neck brace. Dr Eaton continued to write certificates authorising the plaintiff's absence from work. She again saw Dr Fung who accepted that the Botox treatment had not worked. Thereafter, she looked only to Dr Eaton for medical attention but, on her own initiative, consulted a Dr Blacks, an osteopath at Wagga, whose massaging appeared to afford some relief.

17. The plaintiff then retained the services of a Canberra osteopath, Mr Taylor, whom she first saw in about September 2003 and whose treatment has been ongoing since then as it gives the plaintiff "pockets of time" when her pain is much more bearable. However, she was never able to return to her work at the Italo-Australian Club and resigned her employment at about the end of October 2003. Since then, she has engaged in casual clerical and computing work obtaining a short-lived permanent part-time position with the National Press Club which she had to give up to care for her son who had contracted a severe mental illness. She has prospects for further part-time or casual work in the same field as she thinks that there has been a continuing improvement in her physical condition which will enable her to work for up to 20 hours a week. Occasionally, she finds it necessary to resort to medication, Ducene, to relieve the discomfort in her neck and obtain an uninterrupted sleep. Her expenditure on Ducene has been about $50 a year.

18. But for the accident, the plaintiff would have engaged in full-time employment until reaching 55. Since the accident, she has required assistance from her husband and children to carry out domestic tasks. She estimates the time spent in affording her that assistance at five hours a week.

19. The plaintiff was initially inclined to doubt, but eventually accepted, that it was almost two months after the accident before she consulted Dr Griffith. In completing a workers compensation claim, the plaintiff indicated that she had suffered an injury or strain to her neck which had been normal before the accident. However, she acknowledged that she had attended the Canberra Hospital on 19 March 2000 after experiencing "heaviness and tingling" in the left arm and had given a history to the treating doctor, Dr Latimer, of "neck problems for 7-10 years." She also acknowledged that she had consulted Mr Alan Ford, the physiotherapist, on 21 March 2000 and complained of, amongst other things, a problem with tightness on the left side of her neck and across the shoulders.

20. Despite those admissions, the plaintiff refused to concede that her neck had not been normal before the accident. She also acknowledged that it was not until 15 November 2002 that she had lost time from work as a result of injuries sustained in the accident. On 7 May 2002 the plaintiff told Dr Craven, a neurologist who examined her on behalf of the defendant, that she had become aware within the last 6-12 months of a tremor or twitching of her neck but had been working full-time without any restrictions at all. However, she had received sympathetic support from her manager and had been provided with an ergonomic chair to improve her posture. The tremor or spasm in her neck became worse in times of stress or anxiety but had been unremitting in the last 18 months since it got worse. She attributed that deterioration, in part, to a lack of support at work in regard to her injury. That lack of support more or less coincided with the advent of a new manager. Although there had been some aggravation as a result of treatment received for the injuries sustained in the accident, she identified the accident as the "initial cause" of her neck injury.

21. The plaintiff saw a chiropractor, Mr Mustac, for the first time on 16 November 2000. But, although she had several further treatments from him, she did not achieve any perceptible improvement. After persevering with exercises, she consulted Mr Stuart Andrews in November 2001 but did not agree that the effects of the accident had ceased in the intervening period. Nor did she accept that the symptoms for which she had sought treatment at the end of 2001 had been caused by the conditions of her employment. She believed that the treatment which she received from Mr Andrews aggravated her condition.

22. The plaintiff submitted a claim for workers compensation in March 2003 for "stress, anxiety and aggravation of neck injury" but insisted that the injury had been sustained in the car accident. In response to the question on the workers compensation claim form "what parts of the body were affected?", she had responded "neck/psychological." She acknowledged under cross-examination that the five hours a week of assistance rendered by her family had, in part, been achieved by a re-arrangement of duties.

23. Under re-examination, the plaintiff explained that she had made further claims for workers compensation because her injury "didn't ever go away." Almost immediately after the accident the plaintiff noticed a tightness in the neck. She complained of it to Alan Ford on the occasion when she first received treatment from him after the collision. Stuart Andrews' treatment involved very painful stretching.

24. From her husband's observations, the plaintiff was "pretty distraught" after the collision. In the months afterwards she complained to him of pains in her neck and developed a noticeable shudder which fluctuated in intensity, sometimes improving with treatment and, at other times, getting worse. She has trouble sitting and doing the same task for any length of time. Her husband has had to take over the vacuum cleaning. He and other members of the family have had to do much of the ironing and cooking. She no longer helps in the garden. Nor can she still participate in many activities which she had pursued before the accident. She has become reclusive, a different person. Her husband massages her neck and shoulders three or four times a week. Mr Napper had no recollection of his wife having, before the accident, sought treatment for neck problems or anxiety and depression. The deterioration in her condition did not become evident immediately after the collision. Mr Napper did not realise the length of time which had elapsed before his wife consulted a doctor. There may have been long periods when she had few troublesome symptoms. The conflict at work between the plaintiff and the new manager, Jackson, had aggravated, or caused, her stress. Her husband's contribution to the performance of household tasks has increased markedly since the accident. The family was always going to share the household chores.

25. I am satisfied by the evidence of the plaintiff and her husband and the documentary evidence in the form of medical reports that the motor vehicle accident on 3 May 2000 caused a soft tissue injury to the plaintiff's neck which aggravated an underlying tendency to tightness in that area which probably fluctuated in response to stresses to which she was exposed, particularly at work. I accept the diagnosis of Dr Craven that the muscle twitching or spasm which the plaintiff has experienced is a nervous phenomenon attributable to the injury sustained in the collision but not indicative of any underlying neurological disorder.

26. I consider that the impact of the accident-related injuries will continue to be ameliorated over the next four years or so. The plaintiff will be left with some residual difficulties attributable to the pre-existing condition as exacerbated by the injury sustained in the collision. However, the tremor or spasm is likely to continue to be mitigated in intensity, particularly if the plaintiff can avoid repeated exposure to stressful situations like those which she encountered on the change of manager at the Italo-Australian Club.

27. I would assess the plaintiff's general damages in the sum of $40,000 with $28,000 for the past which would generate interest of $3,000, making a total award in respect of general damages of $43,000.

28. The following out-of-pocket expenses totalling $7,779.70 have been claimed by the plaintiff.

29. That "global sum" has been agreed on behalf of the defendant to have been paid by or on behalf of the plaintiff in respect of treatment related to her neck. However, it was submitted that an allowance under this head should reflect only the extent to which the subject collision contributed to the conditions for which that treatment was obtained. It was submitted that any such contribution had ceased after the end of 2001. I do not accept that the plaintiff's symptoms attributable to the collision had ceased by that time. However, I also consider that the plaintiff had been somewhat indiscriminate in the variety of practitioners to whom she resorted in an attempt to mitigate her symptoms and in the frequency with which she underwent treatment from some of them. Some of the treatment, like that of Mr Andrews as recounted by the plaintiff and noted at [14] above, she seemed impliedly to accept, was counter-productive.

30. Consistently with the assessment outlined at [26] above that the plaintiff's symptoms attributable to the collision will continue to diminish over the next four years, I consider it reasonable to allow a buffer of $6,000 for future out-of-pocket expenses likely to be incurred in treating those symptoms as they reduce in the future and in managing so much of the plaintiff's residual disability as could be regarded as traceable to the events of 3 May 2000. To that amount I would add a further $6,000 by way of an admittedly arbitrary assessment of the past out-of-pocket expenses apportionable to the consequences of the injuries sustained in the accident.

31. The plaintiff has claimed an amount of $35,800 for past loss of earnings based on gross earnings of $47,000 per annum and net earnings of $32,000 per annum. On the basis that the plaintiff had not engaged in full-time employment in the 1.4 years immediately before the trial, it was said that $35,800 was an appropriate amount after reducing the net earnings imputed for that period by 20% for vicissitudes and earnings from casual or part-time work. I consider that a substantial cause of the plaintiff's ceasing to work at the Italo-Australian Club after remaining in full-time employment for three years after the accident was the conflict which arose after the appointment of the new manager. Although the plaintiff's ability to cope with stress of that kind was impaired by the physical sequelae of the accident and her attendant psychological vulnerability, I would allow an amount of only $22,000 under the head of past economic loss.

32. As to future economic loss, Counsel for the plaintiff submitted that the ability claimed by the plaintiff at trial to work between 18 and 20 hours a week should be regarded as half her pre-injury capacity. That was accepted as likely to increase to full capacity by mid 2007. At the pre-injury net income rate of $32,000 per annum, the full loss for two years was said to be $32,000 which, with a 15% discount for vicissitudes, would result in an award under this head of $27,200. I do not regard the plaintiff's loss of future earnings attributable to the motor vehicle accident as susceptible of arithmetic calculation in the way contended for by Mr Lunney. As indicated above, I consider that the plaintiff's cessation of full-time work was substantially referable to the conflict which developed between her and the new manager. Similarly, her subsequent failure to engage in full-time employment has been attributable partly to the psychological effects of her ceasing to work at the Italo-Australian Club and the need for retraining and a demanding search for alternative employment. It is reasonable to allow a further twelve months before she could be expected to obtain appropriate and acceptable full-time employment.

33. In these circumstances, I consider that a reasonable buffer for future economic loss attributable to the collision would be $18,000.

34. Counsel for the plaintiff advanced a claim for $5,000 as recognition, in accordance with Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, of assistance provided to her by her husband and children. That was calculated by assuming five hours assistance a week at a rate of $12 per hour for one year in the past and one year into the future making a total of about $6,000 from which a discount of $1,000 was allowed for vicissitudes. Against the evidence of the plaintiff's husband that he has had to assume responsibility for vacuum cleaning and that he and other members of the family have had to take over much of the ironing and cooking, has to be set his concession that the family was always going to share the household chores. In the circumstances, I consider it reasonable to allow three hours a week for the twelve months before trial and for two years into the future. A discount for vicissitudes will be more or less offset by interest on the past component so I shall allow $4,516 inclusive of interest under this head.

35. It was submitted on behalf of the defendant that the plaintiff's general damages should be reduced to reflect the fact that she received a lump sum by way of redemption of past and future entitlements under the Workers Compensation Act 1951 ("the Act") against her employer at the time of the accident. That adjustment was said to be necessary to reflect that part of the lump sum which could represent an allowance for pain and suffering; see Manser v Spry [1994] HCA 50; (1994) 68 ALJR 869 and Kempsey District Hospital v Thackham (1995) 36 NSWLR 492. However, those cases were decided under provisions of workers compensation legislation of South Australia and New South Wales respectively, By contrast, s 184 of the Act entitles the employer to recover from the plaintiff the amount of workers compensation received up to the amount of damages recovered at common law. I have therefore made no adjustment to the plaintiff's general damages to reflect any component of the lump sum redemption under the Act.

36. In case there is a need to adjust the interest which would normally be payable on the amount of the judgment in the present case to recognize the fact that the plaintiff has had the use of the lump sum received by way of redemption under the Act, I shall reserve liberty to apply.

37. A minor amount of $354.09 has been claimed by way of damages arising from the obligation to repay the lump sum received under the Act which is discussed at [35] above. That claim is said to be based on the principle in Fox v Wood ([1981] HCA 41; 1981) 148 CLR 438. That claim has not been contested by Counsel for the defendant and will be allowed in full.

38. In the result, I have concluded that an appropriate award of damages, had this matter proceeded as an assessment, would have been $79,860.09 made up as follows:

39. As the damages have to be reduced by half to reflect the contributory negligence which I have imputed to the plaintiff, there will be judgment for the plaintiff in the sum of $39,930.05. I shall hear Counsel on the question of costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Ryan.

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