BROEKHUYSEN v Greenbank
[2010] WADC 72
•18 MAY 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BROEKHUYSEN -v- GREENBANK [2010] WADC 72
CORAM: SCOTT DCJ
HEARD: 7-9 APRIL 2010
DELIVERED : 18 MAY 2010
FILE NO/S: CIV 1538 of 2009
BETWEEN: MATHILDE JOSEPHINE BROEKHUYSEN
Plaintiff
AND
CLAYTON DONALD GREENBANK
Defendant
Catchwords:
Motor vehicle collision with pedestrian - Liability - Provisional assessment - Turns on own facts
Legislation:
Motor Vehicle (Third Party) Insurance Act 1943
Civil Liabilty Act 2002
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Ms L A Eddy
Solicitors:
Plaintiff: Simon Walters
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bartholomaeus v Newcombe [2008] WASCA 136
Bold v Reed [2005] WASCA 165
Derrick v Cheung (1999) 29 MVR 351
Hawthorne v Hillcoat [2008] NSWCA 340
Manley v Alexander (2005) 223 ALR 228
New South Wales v Fahy [2007] HCA 20
Stocks & Anor v Baldwin (1996) 24 MVR 416
Wyong Shire Council v Shirt (1980) 146 CLR 40
SCOTT DCJ:
Background
The plaintiff was born on 29 January 1952. She is and was at all material times a solicitor practising as a sole practitioner.
At or about 9.30 ‑ 9.50 am on 1 October 2005 the plaintiff was a pedestrian crossing Samson Street, White Gum Valley when she was struck by a motor vehicle ("vehicle") driven by the defendant ("collision").
As a consequence of the collision the plaintiff suffered the following injuries:
(a)cracked right pelvis bone;
(b)cracked left hip;
(c)four fractured right ribs;
(d)three fractured left ribs;
(e)cracked sternum;
(f)back injuries;
(g)a partially collapsed left lung;
(h)severe bruising of her hip and right buttock;
(i)cuts, bruising and abrasions on her left shin and knee;
(j)a cut on her left breast;
(k)a laceration to the left side of her head.
In addition to non‑pecuniary loss the plaintiff claims damages for past and future medical treatment, past economic loss, diminished perimeter of employment, past and future loss of future superannuation benefits, past and future gratuitous services and interest.
Liability and quantum are in dispute. The plaintiff says that the collision was caused by the defendant's negligence in that he:
(a)failed to keep any or any proper lookout;
(b)failed to drive with any or any proper control;
(c)drove at a speed which was excessive in all the circumstances;
(d)failed to brake in time to avoid the collision;
(e)failed to steer or control the vehicle so as to avoid the collision.
The defendant says that the collision was caused solely by or in the alternative contributed to by the plaintiff's own negligence and puts the plaintiff to proof of damage.
Issues
The issues are:
(1)Whether the defendant breached his duty of care to the plaintiff.
(2)Whether any breach of duty on the part of the plaintiff caused injuries to the plaintiff.
(3)In the event that the plaintiff's injuries were caused by the defendant's breach of duty to the plaintiff, whether the plaintiff's injuries were caused or contributed to by her negligence and if so to what extent.
(4)Quantum.
Liability
The plaintiff said that she left home intending to walk to the shops in Lefroy Road, White Gum Valley. She walked down Wongan Avenue from her home, turned right at Samson Street and left into Taylor Street towards Lefroy Road.
It started to drizzle with rain and so she decided to go to the local delicatessen in Minilya Avenue instead. The delicatessen is shown at the top right hand corner of two Google plans, Exhibits 2.1 and 2.2.
She walked back along Taylor Street, turned right at Samson Street and walked along the southern side of Samson Street, in an easterly direction towards the intersection with Minilya Avenue. She said that she then intended to cross over to the northern side of Samson Street, walk along Samson Street and turn left into Minilya Avenue.
She said she stopped to cross Samson Street but was not sure of the exact location where she decided to cross save that she was at a driveway.
On each of the two Google plans which were exhibited there were measurements drawn from a position west of the intersection of Minilya Avenue and Samson Street culminating at a driveway on the southern side of Samson Street. In Exhibit 2.1 the distance to the driveway depicted was said to be 127.11 metres. In Exhibit 2.2 the distance to the driveway depicted was said to be 106.19 metres. The plaintiff said that her best recollection was that she would have tried to cross Samson Street from one of those two driveways although she was not entirely sure about the exact location.
She said that she was wearing light teal coloured tracksuit pants, a dark hooded top and a multicoloured scarf. She could not recall whether she was wearing the hood.
Before she started to cross Samson Street she said that she looked "every direction right, left, right, left". She said that there were no vehicles or any persons in sight.
She said that she stepped off the driveway onto edge of the road in a diagonal way towards Minilya Avenue. She said that she had taken a step or two onto Samson Street when she saw a car (the vehicle) to her right. When she first saw the vehicle it was in a position just west of the intersection of Minilya Avenue and Samson Street where the road flattens out.
She said when she first saw the vehicle she would have been about a metre and a half from the southern edge of Samson Street. The vehicle was about 100 metres away.
She said the vehicle was then on its incorrect side of Samson Street. She said it zigzagged as it drove towards her and was travelling fast. She agreed that there were no cars on the road against which she could check the speed of the vehicle. Exhibit 6 is a sketch by the plaintiff of the path the vehicle took.
She said that the vehicle was driven from its wrong side of Samson Street when she first saw it to its correct side then back to its wrong side and then back to its correct side before it hit her.
She said that she was thinking clearly. She said that her thought was that she wished that the driver of the vehicle would make up his mind so that she could decide whether to go back or to run across (the road).
She said that she waited and watched the vehicle being driven towards her and did not move during that time. She said that she did not panic but the fact that the car was zigzagging made it difficult for her to decide whether to walk across the road or walk back from where she came. She said she was waiting for the defendant to stay in one lane so that she could decide whether to go back, which would have been a skip and a jump, or run across.
She said that the next thing she recalled was opening her eyes when she was lying on her back on the road. She said that a man was leaning over her and he said that his name was Clayton.
The police appeared and she heard a policeman ask the man (defendant) how fast did he think he was travelling and he said "30". Others in the vicinity said words to the effect of "no way" and the defendant said "maybe I was going 40".
She was referred to photographs of the scene (Exhibit 5) which she said were taken by an investigator.
The photographs are numbered 1 – 18. Whilst these photographs and those comprising Exhibit 3 show the topography of Samson Street and where Samson Street intersects with Minilya Avenue it is not possible from those photographs to make any accurate estimates of distances. The photographs were taken from different locations and angles so there was inevitably some distortion as to distance. Although the police attended the scene of the collision at which time the plaintiff was still on the road in the position where she came to rest after being struck, and the defendant's vehicle was in the position where it stopped, no evidence was adduced from the police at trial with respect to the apparent point of collision.
Exhibit 5 (photograph 1) shows the plaintiff and a male person who appears to be her son standing in a driveway behind a white utility which the plaintiff said was the driveway from which she possibly started to cross Samson Street when she was struck, but she was not sure.
She said that Exhibit 5 (photograph 2) was taken by the photographer from the location depicted by the red dot just west of Minilya Avenue shown in Exhibits 2.1 and 2.2. Exhibit 5 (photograph 5) was taken by the photographer facing east up Samson Street, standing where the plaintiff was in photograph 1.
In cross‑examination the plaintiff was shown photographs comprising Exhibit 3. She agreed that Exhibit 3 (photograph 2) showed a utility in Minilya Avenue at the intersection of Minilya Avenue and Samson Street.
She was then shown Exhibit 3 (photograph 6). She said that she did not agree that the point that she started to cross Samson Street was at or about the location of the bundle of foliage depicted on the southern side of Samson Street.
She said that the driveway from which she started to cross Samson Street was next to the roundabout depicted in Exhibit 3 (photograph 6). The roundabout had been constructed some time after the collision.
She said that she did not think it was correct that when she stepped onto the road she was about 40 metres from the intersection of Samson Street and Minilya Avenue. She denied that she was shielding her face from the rain with her left hand.
The defendant gave evidence. He said that on 1 October 2005 he was driving his vehicle in a westerly direction in Samson Street as he was returning home from the gymnasium.
By then he had resided in Samson Street for a couple of years and said that he drove along Samson Street on a daily basis.
He said that visibility was good although there had been showers and wind conditions on and off during the course of the morning. He said that Samson Street comprised two lanes, each of which was a little wider than one car width. At the point of collision the speed limit was 50 kilometres per hour.
He said that because it was a residential area in which there were children and pets it was his practice to travel at about 45 kilometres per hour and that he would glance at his speedometer from time to time.
He said he had his headlights on. He said that he had turned into Samson Street from Carrington Street about 100 metres or so east of the intersection of Samson Street and Minilya Avenue.
He said that before that intersection Samson Street had a gradual incline and then dropped down at or about the intersection. He said that from just prior to the intersection he could see down Samson Street travelling west.
He said that he was driving at about 40 kilometres per hour. He said that he could not recall looking at his speedometer however that was about the speed that he usually travelled and he felt that he was driving at about that speed.
He said that he decelerated into the intersection so that he could look left to right because it had been the case in his experience that persons from time to time drove through stop signs which faced them when they entered onto Samson Street. When he got into the intersection he noticed the plaintiff walking towards him on the southern side and on the edge of Samson Street. He said that she was walking on the edge of Samson Street just off the kerb and on the grass.
He said that a few days before the trial he took a series of photographs. Those photographs comprise Exhibit 3 and are numbered 1 – 12. He said that photograph 1 was taken by him facing east in Samson Street towards the intersection of Minilya Avenue and Samson Street. He said that when he first saw the plaintiff she was between the two driveways and at the location depicted by a bundle of foliage.
He said that as he came through the intersection the plaintiff's actions made him feel a bit uncomfortable by which he meant that she had her left hand up and she was shielding the left hand side of her face with her hand and her arm because there was a bit of shower coming across the front of the car.
He said that she had her head down and there was a determined walk straight along that edge of the kerb right next to the road.
He said that at the time there was an element of courtesy on his part. That was because the defendant was on the edge of the road, it was wet and he was concerned about flicking something up onto her or just being that close to where she was walking.
In cross‑examination he was asked whether he thought that she might have walked onto the roadway to which he responded:
"I … don't know. That was probably part of the concern. But it was also because of the weather as well. There's that courtesy, I guess. Like, you're worried that if you're – you're coming down there you're going to flick up a rock or some water up or something like that as well. So it was – it was a combination of the two. I – I didn't believe she was going to – I don't think anyone expects that. I didn't expect she was going to just head out into the road …"
He said that he further decelerated by easing his foot on the brake and started to work his way to the right hand side of the left hand lane in which he was travelling. He said that the position of his vehicle was about that of the utility depicted in Exhibit 3 (photograph 4). He said that the speed of the vehicle would have been about 30 kilometres per hour.
He said that when the vehicle got to a position just before her, the plaintiff took a sharp 90 degree turn onto Samson Street without looking at which time he estimated that she was about three metres away from his vehicle, near his left hand headlight.
He said that he did not expect her to step out onto the road. She froze and stood there. He pulled the wheel hard to the right and braked. The vehicle slid into the right hand lane at a slight angle and stopped closer to the centre line than the opposite kerb.
He said she took one or two steps onto the road and that there was no time to avoid her.
He said that when he stopped his vehicle he thought that the plaintiff may be under the vehicle so he looked under it from the driver's side and then went around to the front of the vehicle. The plaintiff was lying in the middle of the west bound lane between the back door and the rear of the vehicle.
In cross‑examination he said that he could not remember the conversation with a police officer who attended given the collision was five years ago. He said he did not recall the police asking him how fast his vehicle was travelling.
He said that the plaintiff's position on the roadway was no further into the south bound lane than the left hand side of the utility depicted in Exhibit 3 (photograph 4).
He said that the roundabout shown in Exhibit 5 (photograph 6) was about 100 metres from the intersection of Samson Street and Minilya Avenue. Whilst he cannot pinpoint the exact location where the plaintiff stepped into Samson Street it was definitely between the two driveways depicted in Exhibit 3 (photograph 4).
He said that the collision did not occur as far down the road as the roundabout in the photographs and that it occurred between these two driveways about 30 metres or so from the intersection. He denied that his vehicle was driven in the manner described by the plaintiff and depicted in Exhibit 6.
Findings on liability
I make the following findings.
The plaintiff says that her recollection was that the point at which she stepped onto Samson Street was from a driveway either 106.19 metres or 127.11 metres from a position just west of the intersection of Samson Street and Minilya Avenue, however she cannot be sure.
On the other hand the defendant says that the collision occurred approximately 30 metres or so from the crest of the intersection. In the circumstances of this case that is a marked difference.
During closing submissions I raised with counsel the likelihood that the two light coloured driveways depicted in Exhibit 3 (photograph 4) and Exhibit 5 (photograph 11) on the southern side of Samson Street are the first two light coloured driveways shown in Exhibits 2.1 and 2.2 to the west of the intersection of Samson Street and Minilya Avenue. I raised that because in these photographs there is, from the west of that intersection, a gravel/bitumised driveway directly opposite a grey bitumised driveway and then the two light coloured driveways opposite to which are, respectively, driveways of or about the same colour.
In Exhibit 5 (photograph 1) the plaintiff and her son are standing in a grey bitumised driveway being the driveway next west of the light coloured driveways to which I refer above. That driveway appears from Exhibits 2.1 and 2.2 to be closer to the intersection than each of the driveways referred to in those exhibits. Counsel for the plaintiff accepted that it appeared likely from these photographs that, on the plaintiff's case, the driveway from which she stepped onto the road was closer to the intersection than was depicted in either Exhibits 2.1 or 2.2.
I am not satisfied that the point at which the plaintiff stepped onto Samson Street was either location depicted in Exhibits 2.1 or 2.2.
Further, I consider it most unlikely that if the plaintiff had stepped from the southern side of Samson Street into the roadway by no more than a metre and a half and she then saw the vehicle to her right which was 100 metres or so away travelling in the erratic manner described by her she would not have stepped back to the kerb from where she came.
I consider it inherently unlikely that the plaintiff would have remained motionless, thinking about which path the vehicle may take as it zigzagged down the road towards her and not take one to two steps backwards to apparent safety which would have taken but a moment.
For these reasons I am not satisfied that the plaintiff's account of the circumstances in which the collision occurred was reliable.
I do not accept that the defendant was driving his vehicle at speed or that he was driving it in the manner about which the plaintiff gave evidence. I was impressed by the evidence given by the defendant. He was clear and concise. He lived in the area. He was aware that children lived in the area. He was returning home from the gym in the morning. The manner of his driving described by the plaintiff was extremely reckless. I do not accept that he was driving in that manner or anything like it.
Where there is conflict between the evidence of the plaintiff and of the defendant, I prefer the defendant's evidence.
I accept the evidence of the defendant that the point of the collision was at or about the location of the bundle of foliage depicted in Exhibit 3 (photograph 2), a distance of about 30 metres or so from the intersection. I accept that as he approached the intersection of Minilya Avenue and Samson Street his vehicle was travelling no more than 40 kilometres per hour.
The plaintiff was walking on the edge of the southern side of Samson Street in a determined way, which is consistent with her wanting to shop at the delicatessen and return home having regard to the weather. I am satisfied that she was walking with her left hand and arm shielding her face from the rain.
I accept that when he saw the plaintiff the defendant decelerated and started to move his vehicle towards the centre of the road so as not to be too close to her and to avoid the prospect of splashing her and/or flicking something up onto her. I accept that the plaintiff gave the defendant no cause to think that she may head out onto the road into the path of his vehicle.
I accept that when his vehicle was in close proximity to the plaintiff she, without warning, stepped onto Samson Street into the path of the vehicle and was then no more than three metres in front of the vehicle. Although he applied his brakes and pulled the steering wheel to the right the left hand front of his vehicle struck the plaintiff.
That the plaintiff stepped onto Samson Street without looking properly is perhaps consistent with her evidence that before stepping onto the road, she looked right, left, right and then left again – not then seeing the vehicle coming from her right hand side.
I accept that as the defendant's vehicle approached the plaintiff it was travelling at a speed of about 30 kilometres per hour. That finding is, in my view, consistent with the fact that notwithstanding that the road was wet the defendant's vehicle came to a stop after striking the plaintiff such that the plaintiff was lying on Samson Street at a location between the rear passenger door and back of the defendant's vehicle. There was no evidence that she was carried or propelled forward to any degree. The inference which I consider can be reasonably drawn is that the vehicle stopped within a very short distance of the point of collision.
Law
The primary matters which fall for determination are whether the defendant breached any duty of care owed by him and if so, whether such breach caused injury to the plaintiff.
In deciding whether there has been a breach of the duty of care the Court must first ask itself whether a reasonable person in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. That risk being a real risk that was not far fetched or fanciful and was more than a mere possibility. That involves consideration as to what a reasonable man might do, in the circumstances, by way of response to the risk to avoid causing injury or damage (Wyong Shire Council v Shirt (1980) 146 CLR 40; s 5B Civil Liability Act 2002.
In Wyong Shire Council v Shirt Mason J said (at 47):
"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, … It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
In Bold v Reed [2005] WASCA 165 Le Miere AJA said at [23]:
"In general the driver of a vehicle is entitled to act on the assumption that pedestrians whom she is approaching and who have the appearance of normal adults will take normal precautions for their own safety unless there is something to indicate the contrary. Traffic would become impossible if this were not so. If an accident occurs only because such a pedestrian acts abnormally and without warning the driver is not at fault."
In Knight v Maclean [2002] NSWCA 314 Hayden JA said:
"It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. [68].
The plaintiff bore the burden of proving negligence on the part of the defendant. This meant that in substance the plaintiff bore the burden of proving that the defendant failed to keep a proper lookout and of proving that if he had kept a proper lookout, he would have seen the plaintiff in sufficient time to avoid the collision. These burdens could not be discharged by the mere fact of the collision." [69].
In Stocks & Anor v Baldwin (1996) 24 MVR 416 the Court of Appeal (NSW) made the point, in the circumstances there described, that while the driver of a vehicle on a busy city street was entitled to assume that ordinary pedestrians would take simple precautions for their own safety, because "to think otherwise would be to ignore the realities of city life", drivers must also have regard to the fact that pedestrians do sometimes act carelessly and reasonable precautions against that eventuality must be taken. At 418 Mahoney P observed that the gravity of the harm which might occur was to be considered and said:
"The damage which a driver may do to a pedestrian is great: … This is an important matter when deciding what a driver must do. The inconvenience of driving slower is to be measured against, inter alia, what may be done to a pedestrian if the driver's estimate of the risk is wrong."
In Stocks (supra) Mahoney P also added that in relation to the Shirt "balancing process" " … at least four things are to be borne in mind: the extent of the damage that may be done by a driver to a pedestrian; the degree of likelihood that a pedestrian will suddenly come into the path of an ongoing vehicle; the consequent extent of the precautions which a driver must take against that eventuality; and the extent of what a driver is able to do when confronted with such a danger" (418).
In Bartholomaeus v Newcombe [2008] WASCA 136 Murray AJA with whom the other members of the Court of Appeal agreed said at [13]:
"The culpability of a negligent driver will be greater, I think, if the risk of hitting a pedestrian is heightened in the particular circumstances of the case; perhaps because of some particular impediment to visibility or because there is a greater than ordinary risk that a pedestrian may behave unpredictably."
In Manley v Alexander (2005) 223 ALR 228 the majority of the High Court said:
"Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. …
But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events."
In Derrick v Cheung (1999) 29 MVR 351 Davies AJA in his dissenting judgment, which was approved by the High Court on appeal, said at [16]:
"The facts of the present case were different from those in Stocks v Baldwin for there was no particular perceivable risk which the appellant should have taken into account but did not. … "
In Knight vMaclean (supra), Heydon JA after referring to the High Court's approval of Davies AJA's approach in Derrick (supra), noted (at [64]) that that approach " … in part centred on the fact that though the appearance of a child may have been reasonably foreseeable, there was 'no particular perceivable risk which the [defendant] should have taken into account but did not', 'no particular danger was observable', and 'no particular danger was apparent'. In this case, too, the movement of pedestrians at some speed across the road was reasonably foreseeable, but the appearance of the plaintiff at a fast walk was not a particular risk or danger which was perceivable, observable or apparent".
Finally, the standard of reasonable skill and care required of drivers is not a standard measured by success or perfection assessed with the wisdom of hindsight (Hawthorne v Hillcoat [2008] NSWCA 340 at [47]).
As Gummow and Hayne JJ said in New South Wales v Fahy [2007] HCA 20 at [57]:
"It requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury."
The principles distilled from these cases demonstrate a commonsense approach to an assessment as to whether there has been a breach of the duty of care on the part of a driver whose vehicle has collided with a pedestrian.
A driver of a vehicle is entitled to act on the assumption that a pedestrian will take normal precautions for his safety unless the driver was on notice by reason of the surrounding circumstances and/or by the conduct which he saw or should have seen that the pedestrian might act in such a way as to put that pedestrian in danger from the vehicle being driven by the driver ie, that there was a particular perceivable risk which the driver should have taken into account but did not.
In my view the defendant did not breach his duty of care to the plaintiff in the manner of his driving. He was driving at a speed of no more than 40 kilometres per hour as he approached the intersection of Minilya Avenue and Samson Street. That was a reasonable speed in all of the circumstances. He saw the plaintiff as he drove over the crest in Samson Street at or about the intersection at which time the plaintiff was walking on grass on the edge of Samson Street. He decelerated to a speed of about 30 kilometres per hour and moved his vehicle towards the centre white line. Even though he felt uncomfortable that the plaintiff was walking close to the edge of the road there was nothing which could reasonably indicate to the defendant that the plaintiff was likely to step suddenly onto Samson Street into the path of his vehicle. In any event, he exercised proper caution by decelerating and moving towards the centre line in the road. The plaintiff stepped without warning onto Samson Street at which time the vehicle was almost upon her and although the defendant immediately braked and pulled the steering wheel of the vehicle further to the right the collision was in my view unavoidable.
This is not a case in my view where a driver in the position of the defendant could have reasonably expected that the defendant could be likely to step onto the roadway in front of his vehicle without warning.
I am satisfied that the defendant's actions were those of a cautious and prudent driver in all of the circumstances.
During closing submissions counsel for the plaintiff submitted that even if I was to accept the evidence of the defendant as to the manner in which the collision occurred, the defendant was negligent because he saw the plaintiff freeze in front of his vehicle and therefore had time to avoid her.
I do not accept that submission. In describing the actions of the plaintiff the defendant said:
"The lady wasn't on the road and it wasn't a case of on the road, braking and swerving trying to go around her like that. It was a case of coming along and as I was directly in line with the lady or coming towards the lady, she aggressively stepped out. And my action then – she was virtually – she virtually – if I looked out the front of my car off the left hand headlight, she virtually was standing there like that. And then it was a case of braking and pulling hard to the right. It was – it was very much – very quick. It wasn't a case of she was on the road and then I noticed. It was a case of she stepping out into me coming forward … I'm not saying she froze, as in she was on the road and she froze. The – the memory of it – for me, the memory of it was when she stepped out onto the road. The last thing I saw was this lady standing straight in front of me. It felt like I could reach out and virtually touch her."
As I say, I accept the defendant's evidence. Taking into account the inevitable reaction time when the plaintiff stepped in front of the vehicle, I do not consider that the defendant could do more than he did to avoid the collision.
None of the particulars of negligence relied on by the plaintiff are made out.
The plaintiff's claim against the defendant fails.
Provisional assessment of damages
My provisional assessment of the plaintiff's claim for damages is as follows.
Injuries and treatment
The plaintiff was taken to Fremantle Hospital.
There was no issue as to the nature of the injuries sustained by the plaintiff. In a report from Dr Perera dated 16 February 2006 (as part of the medical reports comprising Exhibit 1) Dr Perera said that the plaintiff sustained the following injuries:
•Fractured right 3rd–6th ribs with several pulmonary contusions.
•Fractured left 3rd‑5th ribs.
•Left apical pneumothorax.
•Fractures of right T2 and T3 transverse processes.
•Undisplaced vertical fracture of her manubrium (sternum).
•Fractured right ilium.
•Fractured left acetabulum.
•Extensive bruising of her right buttock and thigh.
The plaintiff was treated as an in‑patient at Fremantle Hospital and Kaleeya Hospital until she was discharged on 28 October 2005 at which time she was in a wheelchair.
She was discharged on narcotic analgesics including OxyContin SR 20 mg bd and OxyNorm 5 mg PRN in addition to which she was prescribed Naprosyn 500 mg bd and paracetamol PRN.
The plaintiff said that she started physiotherapy within 24 hours and was on a morphine pump when in hospital.
She was released from hospital into the care of her 18‑year‑old son Patrick. She did not want her son to have to bathe her and as a consequence she had the services of a nurse carer for half an hour every morning for that purpose.
In addition, once a week, the carer would stay for an hour and a half and would do a general clean in the house.
She said that her recollection was that she was in a wheelchair until Christmas of that year however it appears from the report from Dr Patrick Hertnon from the South Metropolitan Area Health Service dated 8 March 2006 that the plaintiff was starting to mobilise with two crutches by 28 November 2005 and by 6 December 2005 was walking a limited distance with elbow crutches.
Dr Hertnon reported that in telephone contact with the Service's social worker on 17 January 2006 the plaintiff was noted to be walking with the aid of a stick and by mid‑2006 she had returned to driving. I accept the report of Dr Hertnon.
The plaintiff returned to work approximately six months after the accident.
The plaintiff said that she started working about three to four hours a day. She was still on pain medication and still needed her afternoon nap. She started to rebuild her legal practice and reduced her medication. She increased her hours at work.
In July 2008 she was diagnosed with leukaemia as a consequence of which she was unable to work until February 2009 when she returned to work in a part‑time capacity for about two hours per day and did not resume full capacity until about June 2009.
She said that primarily the symptoms with which she has been left from the collision are pain and stiffness in her hips particularly her right hip.
She said that she finds it hard to get going early in the mornings particularly in winter because her right hip is stiff. She has difficulty early in the morning putting on her socks and shoes because she cannot bend her knee comfortably. Once she has moved around a bit and has had a hot shower then she becomes mobile.
From time to time she experiences pain in her right hip which she described as being like someone putting a branding iron onto her hip. That pain eases after five or 10 minutes. She rubs the area and that tends to dissipate the pain. It occurs intermittently during the course of the day. Otherwise she is symptom free.
A summary of the relevant medical evidence is as follows.
Robert John Genat (orthopaedic surgeon)
Mr Genat was called by the defendant. There was no challenge to his evidence.
In his report of 30 July 2009 Mr Genat said that when he saw the plaintiff on that day she reported to him that her only continuing accident related symptoms related to her right buttock‑hip region in respect to which she had an intermittent aching pain over the lateral aspect of her right pelvis/hip particularly in cold, wet weather at which time there could also be some sharp twinges of pain in that area.
She reported that she was unable to lie on her right side for any length of time because of tenderness in the area and said that there was a continued restriction of right hip movement. She said she had continuing difficulty with sitting for long periods.
She reported that she was unable to run given the discomfort/pain in this area and had difficulty with sexual intercourse because of pain and a feeling of stiffness in her right hip.
He reported that the plaintiff had normal mobility. He said that the plaintiff's right hip displayed a very mild restriction of full flexion. That limitation was evident when bending her knee upwards to her chest.
He said in evidence that there was a mild restriction in external rotation that is, turning her hip outwards.
He said that the plaintiff was left with some mild residual disability to the right side of her pelvis resulting in some paraesthesia in the skin over the lateral right buttock/proximal thigh.
His view was that the plaintiff had a small impairment of her capacity to do usual domestic/household tasks and noted that she avoided any heavy lifting or carrying and was fearful of climbing for example to change a light globe.
He said that the plaintiff reported to him that she had an inability to sit for prolonged periods but he did not consider the plaintiff as requiring time off work in the future because of her injuries.
His opinion was that the plaintiff was left with a small amount of permanent residual disability in her lateral right buttock/hip region which in percentage terms was a 5 per cent loss of function in her right lower limb.
Andrew Craig Harper (occupational and public health physician)
Mr Harper gave evidence and his two reports of 8 July 2009 and 9 March 2010 were tendered.
In his report of 8 July 2009 Mr Harper said that the plaintiff told him of the following symptoms:
•Pain in her right buttock and thigh being a dull sensation over a wide area of the right buttock extending to the upper thigh and on occasions having intermittent needle like pain in that area which was getting more frequent and some numbness over the buttock. The plaintiff reported that in cold weather pain in this area reached 8/10 but was usually 1‑2/10. She reported symptoms 80 per cent of the time affecting her right buttock and those symptoms were aggravated by movement, wet and cold weather, prolonged sitting, dancing, running and sexual activity.
•Rip hip stiffness in the morning and after prolonged sitting.
•Neck stiffness and pain extending the length of her cervical spine in respect to which she got relief from massage.
On examination he reported that the plaintiff was in no distress, her posture and gait were normal and she sat through the interview without distress.
On examination of her lumbar spine he found power and reflexes to be normal, there was altered sensation over her right buttock with tenderness on the right side of the lower lumbar region extending to the lateral aspect of the hip and buttock. She was able to squat and hip flexion while standing was unimpeded. Back movement was unrestricted and shoulder movement was normal. On examination of her cervical spine there was slight reduction in rotation to the left. There was tenderness at the base of her neck bilaterally and over thoracic spines T3 and T4. Range of hip movement was within normal limits.
Mr Harper said that the injuries sustained by the plaintiff would not prevent her working 40 hours per week. Her restrictions were to avoid heavy lifting and carrying, extensive quick walking, climbing of stairs and prolonged sitting.
Whilst Mr Harper opined that those restrictions reduced her competitiveness as a lawyer in the open workforce there was no factual foundation referred to in his evidence upon which that opinion was based. Without that foundation I do not consider that opinion to carry weight.
He said the plaintiff had a mild residual disability affecting her right leg and buttock and a slight disability of her cervical spine.
In his report of 9 March 2010 he said that he reviewed the plaintiff on that day.
On examination he reported that the plaintiff was in no distress and that her posture was normal. He said that she walked with a slightly short stepping gait with a suggestion of a limp favouring her right leg.
On examination of her lumbar spine he found power, reflexes and sensation to be normal. The plaintiff was able to squat. Her hip flexion while standing revealed a greater degree of flexion in the left hip than in the right.
The range of her back movement was unrestricted. On palpitation there was no tenderness over her lumbar spine but she was tender over the right buttock. Shoulder and neck movements were normal. There was some tenderness over the cervical spines and at the base of her neck on the right side. On examination of her right hip there was reduced external rotation and abduction.
Mr Harper opined that he did not anticipate the plaintiff being able to cope with full‑time work in a law firm as an employee. Again, there is no factual foundation in evidence for that opinion. There was no evidence, for example, as to what Mr Harper's understanding was as to the obligations cast on an employee with a law firm.
He said that she was restricted in heavy lifting such as repeated carrying of heavy files and extensive quick walking and climbing of stairs. He said that the plaintiff needed to avoid prolonged sitting. He agreed, however, in cross‑examination that he did not undertake any objective testing to determine what her ability was to sit for any length of time.
He confirmed that the plaintiff had a mild residual disability affecting her right leg and hip and buttock. He said that the disability of her cervical spine was minimal.
A number of medical reports were tendered by consent.
Dr Patrick Hertnon
In his report of 8 March 2006 Dr Hertnon said:
•The plaintiff was discharged from Kaleeya Hospital under a Rehabilitation in the Home program on 21 October 2005 pursuant to which she was to receive a home care package via relative care for one hour daily, for personal care assistance and home help.
•Physiotherapy was undertaken on 24 October 2005 and an occupational therapy home visit on 26 October 2005. Further physiotherapy followed.
•On 9 November 2005 the plaintiff was reviewed in the orthopaedic outpatient clinic. Her pain was improving and she was tapering down her OxyContin. X‑rays of her pelvis and both hips were performed revealing that the right iliac bone fracture was faintly visible. The left acetabular fracture appeared to have healed and alignment was satisfactory. Both hips were of normal appearance. Physiotherapy was to continue.
•By social work review on 28 November 2005 the plaintiff was starting to mobilise with two elbow crutches. At review on 6 December 2005 the plaintiff was walking a limited distance with elbow crutches. The plaintiff's ability to undertake activities of daily living were then noted to be improving in relation to showering, dressing and transfers. Relative Care assistance was extended until 19 January 2006. On 7 December 2005 the plaintiff was discharged from the Rehabilitation in the Home program.
•On 17 January 2006 the plaintiff reported to be walking with the aid of a stick and her abilities relating to activities of daily living were improving. She was attending hydrotherapy twice weekly at St John of God Hospital and twice weekly at the Melville Aquatic Centre. The home care package was extended until 16 February 2006 with home help required for two hours on Mondays and Thursdays as of 23 January 2006.
At review on 25 January 2006 the plaintiff appeared to be doing well. She still had some pain in the soft tissues on the lateral aspect of her right pelvis and was still limping. She felt the need to use one walking stick when she was going out and still needed Tramadol on a fairly regular basis. The plaintiff's general practitioner was advised that the plaintiff could use an exercise bike.
Restrictions from accident
The plaintiff gave evidence that she could not sit for too long. Before the accident she had been active in African cultural events and did a lot of African dancing. She used to go for runs on the beach, swam at the beach and rode her bicycle around town. She had not resumed those activities.
She had a healthy sex life which had been affected due to the fact that her right hip did not open as much as it used to and when she forced it, it was painful and she could only sustain the position for short periods.
She had been in a relationship for 10 years when that relationship broke up in November 2007. She said the relationship gradually broke down because she was not the partner that her partner used to have. He was a professional photographer and they used to go on adventure photographic holidays at least once a year which would involve six to eight hours a day hiking with photographic equipment. Because of her accident she could no longer do those activities. She was also unable to have and enjoy sex with the same regularity.
Effect on work
The plaintiff was a mature age student. She undertook her articled clerkship when she was 40. She then worked with a number of firms and then commenced work as a sole practitioner in September 2002. She primarily acted as a family lawyer although she also did wills and probate.
As she was building up her practice she was working eight or nine hours per day.
After the accident she was off work until around March 2006. Initially she said that she went back to work in April 2006 and then later in her evidence she said it may have been February. Hence I have taken a midline of March. She started working three to four hours per day. She had to restart building up the practice and she gradually increased her hours.
She was then diagnosed with leukaemia in July 2008 and although she went back to work on a part‑time basis in or about February 2009 she was unable to work in a full‑time capacity until July 2009. She accepted that she had to rebuild her practice again.
She said that her workload had reduced such that at trial she was working about eight hours a day, 40 hours a week. She said that she would get to work at about 10 am and usually leave between 5 and 6 pm. She said that the reason she did not start work until 10 am was because her hip was stiff.
Economic loss
The plaintiff's financial statements were tendered by consent and comprise Exhibit 4.
From early September 2002 the plaintiff's income was solely derived from her legal practice. Those financial statements show the following:
2003 Financial year (10 months)
Professional fees totalled $92,960 plus disbursements and office cost recoveries ("other income") in the sum of $5,368 resulting in a net profit of $19,356 which after adjustments the taxable income of the practice was $7,658. The plaintiff's taxable income was $19,663.
2004 Financial year
Professional fees totalled $92,257 plus other income of $10,767 resulting in a net profit of $27,621 which after adjustments the taxable income was $28,343. The plaintiff's taxable income was $26,928.
2005 Financial year
Professional fees totalled $108,199 plus other income of $9,463 resulting in a net profit of $50,288.
After adjustments the taxable income was $34,818. The plaintiff's taxable income was $32,510.
2006 Financial year
Professional fees totalled $18,986 plus other income of $3,824 resulting in a loss of $26,109 which, after adjustments the loss for taxation purposes was $17,741. The plaintiff's taxable income was nil.
2007 Financial year
Professional fees totalled $77,927 plus other income of $6,487 resulting in a net profit of $38,433 which after adjustments the taxable income was $43,315. The plaintiff's taxable income was $40,263.
2008 Financial year
Professional fees totalled $121,178 plus interest ($2,388) and other income of $9,531 resulting in a net profit of $69,977 which after adjustments the taxable income was $64,183. The plaintiff's taxable income was $66,539.
2009 Financial year
Professional fees totalled $41,385 plus insurance monies ($29,088) plus rents ($11,595) and other income of $2,663 resulting in a net profit of $1,841 of which after adjustments the taxable income was $7,701. The plaintiff's taxable income was $14,718.
Six months to 31 December 2009
Professional fees totalled $43,173.70 plus other income of $3,671.90 resulting in a net profit of $28,614.56.
I accept the evidence of the plaintiff as to the hours which she worked in her practice before the collision and after the collision. To that end I accept that as she was building up her practice, and before the collision she was working eight or nine hours per day and that after she resumed work in or about March 2006 she commenced working three to four hours a day and increased her hours to seven to eight hours per day. There is no evidence from which I could make any finding as to the timeframe over which those working hours were increased to 40 hours per week.
I accept that after March 2006 and before July 2008 when she was diagnosed with leukaemia, it was necessary for her to rebuild her legal practice. The plaintiff would inevitably have suffered economic loss for the period between the date of the collision and the time at which she returned to work in or about March 2006.
There are a number of evidentiary difficulties confronting the plaintiff with respect to her claim for economic loss.
(a)There is also no evidence upon which I could make any finding as to whether and to what extent it may have been reasonable to expect but for the collision, that the plaintiff's clientele would expand and/or her income may increase beyond that immediately prior to the collision – by which time the plaintiff's practice had operated for three years.
(b)The plaintiff gave evidence that before the collision it was her practice to attend the Family Court quite regularly carrying heavy files. After the collision and when she resumed work she said that she tried using a trolley, as other colleagues did but the difficulty was that there was a need to negotiate stairs and to lift the files out of the trolley. In cross‑examination she agreed that at the Family Court there are facilities for those who have a disability, which included ramps and lifts.
She said that when she recommenced work after the collision she directed her practice towards effecting settlements rather than litigating and has referred those who would wish to litigate, elsewhere.
However there is no evidence before me as to the financial impact, if any, which that change in emphasis in the plaintiff's practice may have had.
(c)Although it would seem that the plaintiff may work approximately an hour less per day than she did before the collision there is no evidence as to what additional income that hour or so per day might generate.
(d)Further, the plaintiff was diagnosed with leukaemia in July 2008 and was unable to work at all in her legal practice for 12 months. Inevitably that would have required her to rebuild her practice again.
(e)Finally, in her evidence the plaintiff said that she started work at about 10 am because she takes longer to get going because of the stiffness in her hip. She said that if she was to start work at 9 am she would need to get up at 6 am and she was not prepared to do that. I do not consider that the plaintiff has a loss of capacity to work that extra hour or so. It is not reasonable in my view for the plaintiff to maintain that claim on the basis that to work that hour or so, she would need to get up at 6 am and she is not prepared to do so.
In these circumstances the best estimate that I can make in respect to the past economic loss sustained by the plaintiff will be to take as a base her taxable income at the date of the collision and compare that with her taxable income to July 2008 when the she stopped work after having been diagnosed with leukaemia. I am not satisfied that the plaintiff suffered any economic loss by reason of her injuries between July 2009 and trial having regard to the necessity for her to rebuild her legal practice after time off work during treatment and rehabilitation for leukaemia.
Calculation – past economic loss
A summary of the 2005‑2008 financial years is as follows:
Year Professional fees Other income Taxable income after adjustments (business) Plaintiff's taxable income 2004
$92,257
$10,767
$28,343
$26,928
2005
$108,199
$9,463
$34,818
$32,510
2006
$18,986
$3,824
($17,741)
Nil
2007
$77,927
$6,487
$42,315
$40,263
2008
$121,178
$9,531
$64,183
$66,539
*Included in the income was interest in the sum of $2,388
The plaintiff's taxable income in the 2005 financial year was $32,510. In the 2006 financial year the plaintiff's taxable income was nil. In addition there was a loss after adjustments, in the business of $17,741. As a consequence that sum ought to be taken into account.
The only year in which the plaintiff's taxable income was less than her taxable income in the 2005 financial year was the 2006 financial year.
From the plaintiff's notice of assessment for the 2005 financial year there was income tax payable of $5,925 leaving a balance of $26,585.
The past economic loss is thereby calculated in the sum of:
(a)Business loss for taxation purposes in
2006 financial year $17,741
(b)Difference between $26,585 and plaintiff's
taxable income (nil) in the 2006 financial year $26,585
$34,326
.Plus interest at 6 per cent per annum to judgment.
The plaintiff also claims past loss of superannuation and interest thereon. The plaintiff was at all material times a self‑employed sole practitioner. There is no statutory entitlement to superannuation and there was no evidence adduced by the plaintiff concerning any investment in superannuation in respect to which she was deprived. This head of damage is not made out.
Diminished perimeter of employment
In her particulars of damage the plaintiff claims that due to the stiffness in her pelvis and hips in the morning she is:
(1)unable to consider career opportunities with other law firms who would require the plaintiff to be there for the whole day;
(2)unable to take on work that involves litigation as this would require court attendances at 9 am or 10 am meaning getting up early and driving to Perth.
As a result she claims that she is prejudiced when competing in the open labour market and claims a global amount of $400,000 for the period from trial to age 70 plus future loss of superannuation benefits. In my view this claim is not made out for a number of reasons.
In cross‑examination of the plaintiff there was this exchange:
"Q.Now, since you have had your practice, you haven't at any stage, made any enquiries with any other legal practice to ascertain whether or not you could obtain employment with those other alternative practices?
A.No.
Q.You haven't approached any HR firms specialising in placing lawyers to see whether they would be able to place you in any particular employment?
A.I don't want to be placed in a particular – I want to work my own firm."
By that evidence the plaintiff made it clear that she had no desire to work as an employee with a law firm.
In addition there was no evidence from which I could make any assessment as to:
(a)the capabilities of the plaintiff as a practising lawyer;
(b)whether there were any prospective opportunities for the plaintiff to be employed in a law firm;
(c)the likely requirements which would be made of the plaintiff by any prospective employer;
(d)the income which the plaintiff might expect to be paid by a prospective employer.
They are not matters about which any "broad brush" approach could be taken by me.
If the plaintiff's claim for diminished perimeter of employment is based upon the loss of capacity to work an additional hour or so per day, I am not satisfied that the plaintiff has that loss of capacity. As I have said earlier it is not reasonable in my view that the plaintiff is not prepared to start work at 9 am because to do so she would need to get up at 6 am. In addition, as I have already found, there is no evidence upon which a determination could be made as to whether any loss was suffered by the plaintiff working one hour or so less per day and/or the quantification of any loss.
With respect to the plaintiff's claim that she is unable to take on work that involves litigation as that would require court attendances at 9 am or 10 am meaning getting up early and driving to Perth, I do not consider that that claim is made out for the reasons referred to in the preceding paragraph. In addition, as I have found, there was no evidence that the plaintiff suffered any financial detriment from concentrating on settling Family Law matters rather than litigating.
Finally, the plaintiff's taxable income had by the end of the 2007 financial year exceeded her taxable income in the financial year immediately preceding the collision and that continued to be the case in the 2008 financial year. The plaintiff then took a year off work to recover from leukaemia. There is, in my view, no evidentiary basis for a finding that the plaintiff will suffer any future economic loss referable to the injuries sustained by her in the collision.
In the premises the claim for damages for diminished perimeter of employment is not made out.
Past and future gratuitous services
The parties are in agreement that gratuitous services ought to be calculated at the rate of $21 per hour.
The plaintiff gave evidence that when she was confined to her wheelchair at home she had a carer for 30 minutes a day to shower her and for a further hour per week to clean her house.
During that time she said that her son Patrick, who was a university student, would make breakfast for her in the morning, do the shopping, make lunch, make dinner and help her to go to the toilet during the course of the day and at night as well. She said that she was scared to fall because the doctors had told her that she ought not put weight on the fractures.
She said that she usually had to go to the toilet about three times a night and she would need to wake Patrick so that he could help her.
In addition he did the house cleaning including vacuuming and washed the linen, towels and her clothes.
Her estimate was that whilst she was in a wheelchair it would take about 15 minutes of his time on each occasion to help her to the toilet and that would be necessary seven or eight times a day ‑ perhaps an hour and a half to two hours in total.
She then estimated shopping, cooking, preparing meals and cleaning to involve on average a further three hours a day.
When she went onto crutches she said that her son needed to undertake all of these tasks other than to take her to the toilet.
When she progressed to using one crutch or one walking stick she was able to do most of the household tasks although her son still had to undertake the heavy work such as vacuuming and mopping in addition to which he would still do the shopping and wash clothes and linen.
She said that by the time she went back to work, about six months after the collision, she could do everything but at a slower pace.
Her son Patrick gave evidence. He said that when the plaintiff was released from hospital and was in a wheelchair he would do all of the cooking and the cleaning including the vacuuming and the laundry.
He estimated, whilst his mother was in a wheelchair that he would be assisting her about five hours a day which included helping her to go to the toilet during the day and at night.
When his mother went on crutches he would undertake the same tasks save that he would not be required to assist her with the toilet which would have cut back the time he spent by about an hour and a half.
When she used one walking stick he still helped her with the shopping.
In cross‑examination he said that he did the shopping two or three times a week which would take about an hour at a time including driving each way.
He said that insofar as cooking was concerned he would make three meals a day for his mother which would take him about 40 minutes to do breakfast which included cooking and cleaning, about 40 minutes to do lunch and about an hour to do dinner including cleaning the pots and pans.
Insofar as vacuuming, mopping and general house cleaning was concerned he would undertake that work every few days. He said that he would probably spend about 40 minutes to an hour a day wiping surfaces, vacuuming on different days and mopping on different days.
Before the collision he used to clean his space and his mother did most of the other chores.
He agreed that by about March 2006 his mother was doing everything herself again although she was still quite anxious in the house.
I find that:
(a)The plaintiff required assistance in the form of gratuitous services between the date of the collision and the end of March 2006.
(b)During the time that she was in a wheelchair it was necessary for her son to undertake all of the tasks described. They included about an hour and a half assisting his mother in going to the toilet during the course of the day and night and the other tasks to which he referred in respect of which I consider a reasonable time to be an additional three hours per day on average over the course of a week.
(c)In accordance with the report of Dr Hertnon dated 8 March 2006 by 28 November 2005 the plaintiff was out of the wheelchair and using two elbow crutches.
(d)After the plaintiff commenced using elbow crutches, save for assisting the plaintiff to go to the toilet it was still necessary for the plaintiff's son to undertake the other tasks, in respect to which I consider a reasonable time to be three hours on average per day.
(e)In accordance with Dr Hertnon's report of 8 March 2006 the plaintiff was on 17 January 2006, noted to be walking with the aid of a stick and her abilities in relation to activities of daily living were improving.
(f)Thereafter the plaintiff's ability to mobilise, improved until she was, on her own evidence and the evidence of her son, able to do all tasks by March 2006.
(g)Having regard to the increased mobilisation of the plaintiff over time and her progressive ability to undertake daily tasks which culminated in her being able to undertake all tasks by March 2006, in my view the plaintiff's claim in the schedule of damages of 15 hours per week over the period 22 October 2005 to 28 February 2006 (18.4 weeks) at the rate of $21 per hour or $315 per week totalling $5,796 is reasonable.
(h)As to future gratuitous services it is the case that the plaintiff is left with some residual symptomology however there is no evidence that from the end of February 2006 to the date of trial, marginally over four years, she required any assistance that would warrant any claim for gratuitous services. In those circumstances there is, in my view, no claim for future gratuitous services made out.
By s 3D of the Motor Vehicle (Third Party Insurance) Act 1943 ("Act") there is a threshold for gratuitous services of $6,000. By reason of my finding as to gratuitous services the threshold is not exceeded and accordingly no sum is recoverable by the plaintiff under this head.
Non‑pecuniary loss
I accept that the plaintiff sustained multiple injuries in the collision. She has, however, recovered substantially from those injuries leaving her with moderate residual symptoms referred to by Dr Genat and Dr Harper.
That residual disability relates to the injury to the right side of the plaintiff's pelvis which consists of some paraesthesia in the skin over her lateral right buttock/proximal thigh and a needle like or shooting pain in the right buttock area extending to her upper thigh which occurs intermittently during the course of the day and it is aggravated in wet and cold weather. She gets relief from rubbing the area when that symptom occurs.
She also suffers from right hip stiffness which occurs primarily in the early morning and also after prolonged sitting. Again she obtains relief from movement and warmth.
Although the plaintiff did suffer from some degree of neck stiffness and discomfort Dr Harper said in his report of 9 March 2010 that that stiffness and pain was by then occasional.
Although Drs Genat and Harper did not undertake any independent assessment of the plaintiff's ability to sit for any length of time and relied upon the plaintiff's instructions I accept that the plaintiff does suffer from discomfort after prolonged sitting which requires her to mobilise.
The only medication which the plaintiff takes for her symptoms arising from the collision is occasional Tramal.
In his report of 8 July 2009 Dr Harper said that the plaintiff was able to squat and hip flexion while standing was unimpeded. He said that straight leg raising was normal at 85 degrees bilaterally, back movement was unrestricted and shoulder movement was normal. He said that the range of hip movement was within normal limits.
In his report of 9 March 2010 he said that on examination of her right hip there was reduced external rotation and abduction.
In cross‑examination he said that in his first report he did not report the hip movement sideways but did so on the second occasion. He was unable to say the extent to which there was reduction save to say that there was a difference between right and left hips. I accept that there is a reduction in the sideways movement of the plaintiff's right hip.
I accept the evidence of the plaintiff which is supported by Dr Harper, that the restriction in hip movement does result in some sexual activity being uncomfortable.
I accept that the disabilities with which the plaintiff has been left has curtailed certain of her physical activities such as African dancing, beach running and bicycle riding and that she remains anxious when climbing, for example, a ladder at home for fear that she may fall.
Damages under this head are to be assessed in accordance with the provisions of the Act. In my view an appropriate award is one whereby the plaintiff ought to be assessed at 17½ per cent of the maximum amount that may be awarded under this head viz $327,000.
Allowing for the calculations set out in s 3C of the Act and the deductible that would apply, the net sum awarded to the plaintiff under this head would be $48,450.
Special damages
Special damages are agreed at $1,894.05.
For the reasons to which I refer above, having regard to my findings, the provisional award of damages would be in the following sum.
Non‑pecuniary loss $48,450.00
Past economic loss $34,326.00
Interest at 6% per annum on past economic loss
from 1 October 2005 to judgment $ 9,536.00
Special damages (agreed) $ 1,894.05
Total$94,206.05
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