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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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