Cook v Schuettpelz

[1987] TASSC 35

TASSC A25/1987

CITATION:              Cook v Schuettpelz & Anor [1987] TASSC 35; A25/1987

PARTIES:  COOK
  v
  SCHUETTPELZ
  ROLF

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  2050/1987
DELIVERED ON:  19 May 1987
DELIVERED AT:  
HEARING DATE:  
JUDGMENT OF:  Wright J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Plaintiff:  
             Defendant:  
Solicitors:
             Plaintiff:  
             Defendant:  

Judgment Number:  TASSC A25/1987
Number of paragraphs:  34

Serial No A25/1987
  File No 2050/1987

COOK v SCHUETTPELZ and ROLF

REASONS FOR JUDGMENT  WRIGHT J
  19 May 1987

1. At approximately 10 pm on Wednesday 12 December 1979, the plaintiff was driving her Datsun 120Y sedan motor car in a northern direction along the Southern Outlet road at Hobart. She was travelling down hill from Mt Nelson towards the City and was negotiating a bend referred to in evidence as Cat's Eye corner – so called because of the double row of cat's eye reflective studs separating the north bound and south bound lanes. There is one north bound lane and two south bound lanes at this point, and for north bound traffic the corner is a sweeping left hand down hill bend, bounded on the left hand side by a high blue stone and concrete wall. It had been raining and it was probably drizzling at the time of the accident. The road surface was wet. The plaintiff's speed was in the vicinity of 40 to 50 kilometres per hour.

1. As she negotiated the corner, the plaintiff noticed two vehicles approaching from the opposite direction. One of these vehicles, according to her evidence, was in the centre lane overtaking the other which was in the far left hand or river side lane. In a statement she made to the police within 24 hours of the accident, the plaintiff said:

"As the vehicle in the centre lane, a Holden panel van, drew almost alongside my car it began to slide across the double white lines into my lane. I braked and tried to swerve to avoid a collision but this panel van seemed to lose control and came across completely into my lane.

The panel van bounced off the large concrete retaining wall and collided with the front of my car."

Her evidence at the trial was substantially in accordance with this statement.

1. Before she had time to alight from her vehicle or collect her wits, the plaintiff's vehicle was struck from behind by a Sigma sedan which had also been travelling in the north bound lane. As a result of one or other or both collisions, the plaintiff sustained what is commonly called a whip lash injury to the cervical spine.

1. After the second collision the plaintiff got out of her car as quickly as she could. She had not alighted immediately following the first collision because she was frightened and upset and in any event the second collision occurred only a few moments after the first.

1. It was pleaded, though faintly argued at the trial, that the plaintiff had caused or contributed to her own injuries as a result of negligence in the following respects:

a)failing to get out of her motor vehicle immediately after the accident.

b)failing to take adequate precautions for her own safety immediately after the accident referred to in the statement of claim.

c)failed [sic] to appreciate or adequately appreciate that by remaining in her vehicle after the accident on the Cat's Eye corner in the weather conditions prevailing that she was creating a dangerous situation and thus rendering herself liable to injury.

I have little difficulty in rejecting these propositions as groundless in the circumstances. The plaintiff had no            real opportunity to alight from her damaged vehicle before the second collision occurred and in any event it seems to me that having regard to the nature of the road at this particular point, she may well have exposed herself to greater danger had she done so. On her left hand side of the road there is only a very narrow strip of concrete kerbing which I would judge to be approximately 1 foot wide separating the travelled surface of the road from the blue stone wall. On the other side of the road there is a concrete kerb adjacent to which there is a metal guard rail. There is simply no basis for concluding that the plaintiff was taking a greater risk by remaining in her vehicle than by stepping out onto the roadway.

1. It was also pleaded in the Defence in the action (par12):

"The defendants say that if the plaintiff suffered personal injury on or about the 12th day of December 1979 in a motor vehicle accident that she suffered such injury as the result of an accident that occurred on the Cat's Eye corner shortly after the accident referred to in the statement of claim between a motor vehicle driven by one Joy Tyrer and the motor vehicle driven by the plaintiff."

This plea was abandoned at the trial and in light of the decisions in Grant v Sun Shipping Co Ltd [1948] AC 549 esp at 563 and Chapman v Hearse (1961) 106 CLR 112, such a course seems to me to have been highly appropriate.

1. The plaintiff said that she saw the male defendant get out of the driver's side of his vehicle and he came up to her and asked her if she was all right. He also said to her that he was sorry and that the accident was his fault. She admitted in cross examination that she hadn't told the investigating police officers that the driver of the other vehicle was a male or that he had confessed his fault to her. Although she was badly shaken by the accident, I have no reason to conclude that the plaintiff has invented this part of her evidence. But the fact is she has brought her case against the defendants on the basis that the first named female defendant was the driver of the motor vehicle and that allegation is in accordance with the evidence given by the two defendants. As the case was pleaded and presented by counsel for the plaintiff in this way, I do not see that I have any other alternative but to accept that the female defendant was in fact the driver of the vehicle. This of course has the inevitable consequence that I must regard the plaintiff as having been mistaken when she says she saw a male person get out of the driver's side of the car. If she was mistaken as to this, she may well also be mistaken about the course of the Holden panel van immediately prior to the accident. But having regard to the overall view that I have formed about the cause of the collision, these conclusions about the plaintiff's reliability are not of crucial importance.

1. Both defendants gave evidence which was essentially in accordance with statements which they had each provided to the investigating police officers on the 13 and 14 December 1979. There were, however, significant differences between their evidence and the picture presented by the statements to the police. Both defendants claimed that the long delay since the accident had affected their present memory and they conceded in effect that what they told the police was more likely to be accurate. The female defendant told the police:

"About 10 pm on Wednesday 12 DEC 79 I was driving a holden panel van, Reg No MR 0253, belonging to Markus Paul Rolf, south on the Southern outlet. Mark was in the passengers seat. I was in the middle lane as we started to climb the hill towards the Mt Nelson turn off.

As we began to go up the hill Mark told me to move into the left hand lane so that a vehicle coming up behind us could pass. I drove into the left hand lane as we were on the long sweeping right hand bend. I estimate my speed at less than 70 kilometres per hour.

Just after this vehicle had passed us the back of the van began to slide. I tried to correct the slide but the van started to slip across the centre lane and then into the north bound lane.

The next thing I recall is the front of the van colliding with the large concrete retaining wall on this corner. The van bounced off the wall and came to rest in the north bound lane facing up the hill. I cannot recall seeing any city bound traffic approaching at this time.

As soon as the van came to rest Mark yelled at me to get out of the car. I didn't see any car coming but felt the impact of another collision. We then climbed out of the passengers side door. When we were out of the car I heard another slam like a collision."

1. The male defendant in his statement to the police confirmed that the female defendant was the driver of his panel van and continued:

"As we commenced the climb up the hill towards the Mt Nelson turn off we were in the right hand lane. A car was coming up behind us and Diane moved across into the left hand lane.

As this vehicle overtook us the back of the van began to slip to the left towards the guard rail. Diane corrected the slide but the van slid across the centre lane and into the north bound lane. The front of the van collided front on with the large concrete retaining wall and bounced back into the north bound lane where we stopped.

Immediately before the accident I estimate our speed at 60 kph.

A split second after we came to rest I saw some headlights coming around the corner and a Datsun sedan collided with the drivers side of the panel van. A couple of seconds later another vehicle also travelling north ran into the back of the Datsun."

1. During the course of their evidence both defendants suggested that the female defendant's manoeuvre into the left hand lane to allow another vehicle to pass had occurred some distance down the hill towards the city well in advance of the point at which the impact occurred. It was also submitted by defence counsel that the collision between the plaintiff's and defendants' vehicles had come about without negligence on the part of the female defendant, and that the same could be attributed to an unexpected skid in difficult conditions.

1. It is unnecessary to go into an esoteric excursion as to the intricacies of res ipsa loquitur and inevitable accident. It is trite law that the plaintiff must prove negligence to succeed in an action of this kind. However she goes a long way towards discharging this onus if she can show that immediately prior to the collision, she was driving at a reasonable speed on her correct side of the road and that the defendant's vehicle when it collided with hers, was wholly on its incorrect side. Proof that the defendant's vehicle came to be in that position as the result of an uncontrolled skid may sometimes be regarded as evidence tending to displace the otherwise inevitable inference of negligence. However in this respect I venture to repeat what I said some years ago in delivering judgment as a magistrate in the Hobart Court of Petty Sessions on 10 July 1973 in the case of Turfrey v Ridgers:

"Mr Bennett submitted by reference to Butler v Livett 1969 43 QWN, The Public Trustee v William Holyman & Sons Pty Ltd unreported Supreme Court judgment by Gibson J Serial No 81 of 1963 and Wordly v Bean unreported Supreme Court Judgment by Burbury CJ  Serial No 8 of 1961 that this was a case where no finding of negligent driving could be made in view of the fact that the defendant's vehicle was skidding prior to and at the time of each collision. In the circumstances, Mr Bennett submitted, this was neutral evidence and did not support a positive inference of negligence.

There are several cases which have been reported over the years dealing with the question of the probative effect of evidence on an uncontrolled skid where negligence has been alleged. In the main these are civil cases, but in my opinion the principles applied are of equal. value and effect in any jurisdiction where the question of negligence arises."

1. Bright J in Millard v Grice and Miller (1967) SASR 15 had this to say (at page 18):

"A skid may or may not afford evidence of negligence. It is always a material factor but its significance diminishes as the facts which caused it become better known. Those facts may emerge in the plaintiff's evidence or in the defendant's evidence. Proof of an uncontrolled skid resulting in damage to the plaintiff may give rise to a prima facie presumption of negligence. But this is not to say (at any rate in Australia) that the defendant ought to be held liable unless he gives an exculpatory explanation of the cause of the skid and goes on to prove that the skid was not only uncontrolled but also uncontrollable.'

Analysis of those skidding cases to which I have had access indicates that they fall essentially into four broad categories. These categories are probably not exhaustive and certainly overlap and merge to some extent. At all events I think that a short reference to the principles involved may be of some assistance in the instant case. As I see it, the categories are these:

1Those cases where the only evidence is that the defendant's vehicle has skidded and has left the road or has been involved in a collision as a result. Sometimes these cases carry the added feature that the defendant has made an out–of–court statement to the police or other persons explaining or attempting to explain the occurrence. Such an explanation may be treated as suggesting a reasonable hypothesis, which is inconsistent with negligence or it may simply be rejected as unacceptable because of inconsistencies, contradictions or ambiguities. At all events it is correct to say that in such cases the skid has been regarded as 'neutral' because there is no evidence of negligent conduct producing the skid and the skid itself is of such a nature that negligence cannot be inferred. The skid is simply the end product of driving behaviour which may or may not have been careless. Simply to reject the driver's explanation cannot add to or detract from this conclusion. Examples of this type of situation are to be seen in Butler v Livett exp Livett (above);  Wing v London General Omnibus Co [1909] 2 KB 652; Ex parte Musgrove (1960). NSWR 819; Public Trustee v William Holyman & Sons Pty Ltd (cited above)

2Cases where acceptable evidence establishes that the defendant's motor vehicle was being driven in a careful and responsible manner and notwithstanding the exercise of such care an accident has occurred when the vehicle has suddenly skidded out of control due to either the unexpectedly dangerous condition of the road or the reasonable manoeuvres of the defendant in trying to avoid a collision with a pedestrian or another car, or a combination of both circumstances. One finds examples in the following:

Hunter v Wright [1938] 2 All ER 621

Brown v De Luxe Car Services [1941] 1 All ER esp per Sir Wilfrid Greene MR at 384

Laurie v Raglan Building Co [1941] 3 All ER 332

Lomax v Reed (1952) SASR 225

Wordly v Bean (cited above)

Millard v Grice and Miller (cited above).

3.Cases where there is evidence of skidding coupled with some additional evidence as to road or weather conditions from which it may be inferred that the skid would not have occurred without a lack of care of some kind on the part of the defendant driver. In some instances this has been described and applied as 'res ipsa loquitur' eg

Stubbs v B D Goddard Pty Ltd (1964 – 5) NSWR 1910

Richley v FauIl [1965] 3 All ER 109

Knott v Royal Exchange Assurance of London (1955) SASR 33.

It should be noted that in Ex parte Musgrove (cited above) Collins J observed (at 820) that the 'res ipsa loquitur' doctrine had no place in criminal law.

For my part I believe that the introduction of the often misunderstood and misapplied phrase 'res ipsa loquitur' produces unnecessary complications and refinements as to what is essentially a situation in which all the established facts point to negligent conduct as the cause of a skid, at least as a prima facie inference from the plaintiff's case.

In some cases facts elicited from the defendant or other witnesses during the progress of the defence case may strengthen such an inference.

Eg Scott v The Shell Oil Co Ltd an unreported judgment of Gibson J

120/1966 esp at 10
Rainbird and Ors v Ward and Another an unreported judgment of the Full
Court per Neasey J at p8 et seq.

On the other hand the facts established by the defence case may displace the prima facie inference of negligence or so weaken it that the plaintiff (or prosecutor) is unable to discharge his ultimate onus of proof.

4Finally there are these cases where there is direct evidence as to how the defendant's vehicle was behaving immediately before or after it skidded, from which it can be concluded that the defendant's mismanagement of his vehicle was the cause of the skid.

Such evidence may come from a number of sources and may include, for example, direct evidence of high speed, an unnecessarily hard application of brakes in greasy road conditions or long skid marks seen upon the road surface.

Sufficient evidence for a positive conclusion of negligence to arise may also be found in statements made by the defendant which in the circumstances amount to admissions. Sometimes an admission is the only evidence additional to the fact of the skid, which is necessary to support a finding of negligence. In such circumstances the skid is no longer 'neutral'. It forms additional and confirmatory evidence to sustain a finding of negligence, see

Liffen v Watson (1939) 161 Law Times 351.

Kent v Scattini (1961) WAR 74
Scott v The Shell Oil Co Ltd (cited above)

Rainbird and Ors v Ward and Ors (cited above)

1. The defendant's panel van was powered by a 5 litre V8 engine. It had a manual transmission and a "limited slip" differential. It was equipped with "mag" wheels but I was not informed as to the nature or condition of the tyres. At the time, the female defendant was the male defendant's girl friend. She was driving the vehicle on the night in question because the male defendant's licence had been suspended. She normally drove a Morris Minor – a substantially less powerful vehicle than the Holden panel van. Although she claimed familiarity with the panel van's controls, I do not think she was fully familiar with its handling characteristics.

1. In his evidence in chief the male defendant gave the following evidence:

"MR GUNSON: Now did Diane stay in the left hand lane as she went up after the other car passed?.... Well, that's when it started to slide, you know. I told her to pull over, and then the car sort of started playing up.

"What happened exactly?.... Oh I don't know. It's like, as we got towards Cat's Eye Corner, it the back of the car just sort of come around on us.

"Which way did it come around? The back of the car, that is? .... Oh, it went towards the left side of the road.

"Right. Do you recall that when it came around, she tried to correct it? Yeah, yeah, if she did that, she let the power off.

"So You say she let the power off, what do you mean? .... Well she backed the peddle off I think, you know, because – –

"Took her foot off the accelerator? ... Mm.

"That was your impression was it? ... Yeah.

"Now, what sort of engine did you have in your car? ... V8 .

"V8. Was that, in your opinion, the way to have corrected a slide? ....Well, I don't know – yeah. I wouldn't have done it myself that way, but you know.

"HIS HONOUR Was it 4.2 or 5 litre V8?

"WITNESS: It was 5 litre.

''HIS HONOUR: Yes.

"MR GUNSON (Resuming): She took her foot off the accelerator, what happened to the car at that point? .... Well, it's got a limited slip 'dif.' in it you see, and you know, if you back the power off through a corner, the 'dif.' tends to drive forward, straight ahead.

"Right, and what happened? .... It drove us across into the wall.

"HIS HONOUR: I'm sorry. I didn't quite catch what you said. Did you say it had a limited slip dif– – –

"WITNESS: Limited slip 'dif.', yeah.

"HIS HONOUR: Did have a limited slip, yes.

"MR GUNSON: (Resuming) Is that a standard fitting for the vehicle? .... Yeah, come out standard

"So what you're saying is, that the vehicle started to move around, the back came around to the left, she took her foot off the accelerator, and the vehicle drove straight ahead into the wall?..... Oh she was probably, you know, she was trying to correct it at the same time, cause you know

"But of course the distance was very short from the left hand lane across to the wall, was it not? ........ Oh yeah.

"On impact with the wall what happened? .... Well, the bonnet sort of flipped up a bit, and she started screaming and sort of, you know, got hysterical I suppose, and then we bounced off the wall and sort of, then a car come round and hit us."

1. At 359 of the transcript, further evidence was given on this aspect of the matter:

"HIS HONOUR: You said when Mr Gunson was questioning you in answer to a question I put, that it had a limited slip differential?

"WITNESS: That's right.

"HIS HONOUR: What effect does that have on a vehicle, the way it behaves, can you tell me in a general way, I've never driven a vehicle as I know with a limited slip differential?

"WITNESS: Well it's got two cones in the diff. and um, actually when the power goes off it'll – both wheels will drive it the same, like when you go round a corner one wheel goes faster than the outside wheel.

"HIS HONOUR: Yes

"WITNESS: They change, they're different speeds and on a limited slip both wheels go the same speed.

"HIS HONOUR: So if you back off on the power the back wheels will behave differently from a vehicle with a normal differential?

"WITNESS: Oh yeah, yeah.

"HIS HONOUR I see.

"WITNESS: Yeah you can get it into a slide and if you keep the power on it'll pull itself out. With a normal car sort of you know, it won't."

1. Immediately before the accident giving rise to these proceedings, the two defendants had attended a meeting of the Van Dieman Van Club at the Black Prince Hotel. Whilst there they had both consumed liquor and the female defendant said in evidence "I probably would have had, say, two wines". Although it is not alleged that she was under the influence of intoxicating liquor it is not without significance that she had had some liquor to drink during the period immediately prior to the accident.

1. In the whole of the circumstances I have little difficulty in concluding that the accident came about as a consequence of the female defendant's becoming flustered and manoeuvring the vehicle from the centre lane to the river side lane in response to the male defendant's instructions to her to do so whilst travelling at a speed which was too high to enable this change of course to be carried out in safety, having regard to the nature of the curve and the prevailing weather conditions. Having initially lost control of the vehicle in this way, she then failed to respond appropriately or adequately in that she "backed off" on the accelerator, rather than applying power to try and drive the van out of its predicament.

1. In reaching this conclusion, I have rejected the estimate of both defendants as to the van's speed immediately before the accident. I think the speed was substantially more than either of them acknowledged. Mazengarb's Negligence on the Highway, 4th ed at 168 contains the following passage

". . . there are occurrences which, while they originate in unexpected conditions brought about by the elementary forces of nature, are nevertheless due in part to the failure of man to meet the contingency thereby created."

I think this passage succinctly puts the basic proposition which applies in this case. In my opinion, the presence of the defendant's vehicle on the incorrect side of the road at the time of the collision with the plaintiff's Datsun is explicable wholly and solely on the basis of the female defendant's negligent driving. There is no allegation of contributory negligence against the plaintiff based upon her manner of driving and consequently I find entirely in the plaintiff's favour on the issue of negligence.

1. I turn now to the question of damages. As I have already said, the plaintiff sustained a whip lash injury to the cervical spine. Immediately following the accident she went to the home of her fiancé and later to her parent's home where she was in considerable discomfort and pain during that night. In the weeks following the accident, she developed a lot of headaches and a very stiff and sore neck. She had pain in her left shoulder and her left arm which radiated down into her hand. She found that she would lose movement in the fingers of the hand from time to time. When she had these symptoms she became irritable and, on occasions, very bad tempered. At the time of the accident she was 21 years of age and employed as a theatre sister at St. Helens Hospital. She consulted her general practitioner who recommended physiotherapy treatment which helped for a while, but did not cure the symptoms. She consulted an orthopaedic surgeon, Mr Turner, several months after the accident and he arranged for nerve conduction tests to be done in Melbourne. On 19 June 1984 she consulted Mr G P Duffy a neurosurgeon. He arranged for tests and x–rays and nerve conduction studies and after a period of observation, he advised, and subsequently undertook, surgery consisting of a discectomy of the inter–vertebral disc between the 6th and 7th cervical vertebra. Upon the removal of the disc a bone graft was put in its place. The operation alleviated the plaintiff's symptoms to some extent, but she has continued to suffer pain and discomfort affecting her in many aspects of her daily life and also causing difficulties with her employment as a theatre sister.

1. Evidence was called from Mrs Garland the acting Director of Nursing at the Royal Hobart Hospital, who had been advised the evening prior to giving her evidence of the disabilities alleged by the plaintiff who is now employed in the theatre at the Royal Hobart Hospital. Mrs Garland indicated that as a result of these disabilities she would have to closely scrutinise the plaintiff's position and form a decision as to whether or not the plaintiff could continue working at the hospital. On the basis of this evidence it was suggested that the plaintiff's employment is in immediate jeopardy, but after close examination of the whole of the available evidence, I do not think that this is a realistic assessment and I am confident that Mrs Garland will conclude that the plaintiff is able to continue in her present occupation once she considers the whole of the evidence given at this trial and in particular, the evidence of Mr G P Duffy. Although I do not reject the plaintiff's claims relating to her disabilities, both domestically and in her employment, I think those disabilities are put in clearer perspective when it is borne in mind that the plaintiff is a regular player in a womens' A4 Grade squash team. She plays competitively one night per week and she plays socially on one other occasion each week. I accept that she does this for the purpose of keeping herself physically fit and I also accept that she finds it necessary to prepare herself with hot showers, both before and after playing. I also accept that her physical movements while playing squash are now more restricted than they were prior to the accident. Nonetheless, I think that if her injuries were as serious and debilitating as contended for, she would not be able to undertake her squash playing activities with the same skill and vigour that she obviously does.

1. Mrs. Cook's evidence, which I accept subject to the foregoing qualification, was to the following effect. Following the accident, she became moody and angry as a result of the distress caused her by symptoms caused by her injuries. She became frightened to drive in a motor car, finding that driving in a vehicle caused her neck to hurt and in consequence of this she also became very bad tempered. Apart from a trip to Launceston earlier this year, the further afield that she has been since the accident, is a day trip to Richmond, as she is both apprehensive and uncomfortable when driving in a car.

1. She and her husband, who had become engaged on the day of the accident, were eventually married in January 1981. She was then still employed as a theatre sister at St Helens Hospital and she terminated that employment in July or August 1981, because of the impending birth of her first child who was born in October 1981. She immediately found difficulties in coping with the baby in that her holding the child in her left arm caused her neck and arm to ache quite considerably. She also found difficulty in changing the baby and carrying its bath water for similar reasons. A second child was born comparatively soon after the first, although the exact date of birth was not given but I infer that she had the same difficulties with this child as well.

1. She also stated that she had and has difficulties in the following respects. She cannot hang washing on the line because to do so hurts too much and she finds lifting wet washing out of the washing machine too heavy for her. Her husband performs these chores for her. He also does the ironing to a substantial extent because she finds that bending over to do this work causes her neck to become stiff and this, in turn produces headaches. A similar problem results from vacuuming the floor. Her normal practice is to go to bed straight after tea of an evening. She also has difficulties lifting groceries out of the back of the motor car and lifting them onto the kitchen bench. After five or ten minutes of cleaning windows or moving furniture about, she finds that she experiences pain in the neck and shoulder and she develops headaches. From time to time she has swelling and tenderness in the neck and shoulder and her fingers develop a "pins and needles" sensation. She gets very tired and very irritable and becomes upset very easily. She has a feeling of inadequacy in relation to her household duties and this tends to cause her to quarrel unreasonably with her husband.

1. Between her two pregnancies, she returned to work at St Helens Hospital as a theatre sister. In common with many young families at the present time, she found it difficult for the family to subsist on her husband's after tax income alone and had it not been for financial necessity, I think it probable that she would not have returned to employment, even though she clearly enjoys working as a theatre sister. Her head and neck movements are now restricted both in side to side motion and up and down motion. After the birth of her second child she returned to work until the operation performed by Mr Duffy which I have already described. Just prior to that she had begun working at the Royal Hobart Hospital for five days per week. This employment was interrupted by the operation and she returned to the Royal Hobart Hospital five or six weeks after the operation. To ensure no loss of income during this period, she used her holiday entitlement and sick leave.

1. After the operation, she resumed work on a five day per week basis but subsequently cut this down to three days a week and then more recently, to two and a half days a week. She did this because she found that she was not coping with the work. Currently, she works Friday afternoons, commencing at 5 pm and working through until 10.30 pm, on Saturdays she works between 2.30 pm and 10.20 pm and on Sundays she works from 8 am until 4.30 pm. She says that by the conclusion of the Sunday shift she is utterly exhausted and she always has a headache and neck pain. She says that even before she starts work on a Sunday, she usually has a headache and goes to work with a headache and sometimes her neck is stiff and sore. She attributes this to the consequences of the Saturday shift. She is unable still to perform the ordinary work of a theatre sister, as she said,

"there is a lot of work that I can't do I have to jockey through the light jobs such as having the anaesthetic sister because I can't carry the big heavy bundles of instruments that are required for the operation, I can't move the various operating tables around because they are very heavy to push. During the weekdays they usually have attendants to do that but we don't have that of a weekend so we have to do it. I can't move the light for the surgeon because it is high up above my head I can't stand in the one position for very long especially being what is called a scrub sister I have to turn from side to side but I can't do that it just causes too much discomfort and for a lot of cases now we have to wear a heavy lead apron to stop us from getting radiation and I can't do work involved with that so I tend to sort of do all the other light duties which I don't think is fair on the others."

1. There are normally three trained theatre sisters on duty at any one time and the plaintiff is fortunate in that when she is on duty at weekends she is frequently the sister in charge and is therefore able to select for herself the least strenuous jobs. Sometimes this causes friction with her co–workers but by and large they seem to understand that she has disabilities and give her co–operation in this respect.

1. She finds that in her relations with her children, she has difficulty in that a great deal of spontaneity is lacking. She says,

"I can't just bend down and give them a cuddle when they want it if they attempt to come up and cuddle me I am always saying to them 'watch my neck' or 'don't hurt my neck'. If they are hurt and I have to pick them up I get very angry and they can't understand why I am so angry when they are hurt."

Her shortness with her children is a frequent cause of dispute between her husband and herself and she finds she also lacks spontaneity in affectionate exchanges with him. Reading a book with her head bend is something which causes discomfort and, as already mentioned, she generally retires to bed early after tea. Her husband does the washing up most or the time and it is clear that their relationship is not as sound as it might be, due I think, in large measure, to the symptoms generated by the injury caused by the accident. Her husband's evidence tended to substantially confirm this assessment. I should say that I found her husband a fully credible witness and I accept his evidence.

1. Evidence given by her mother, Mr Patricia Free also confirmed that prior to the accident the plaintiff had been a very active sportswoman, being particularly skilful and successful in racquet sports. She was also helpful in the house and had a cheerful and pleasant disposition. I accept Mrs Free's evidence.

1. No psychiatric evidence was called to bolster the claim that there had been a personality change following the accident, but in the circumstances I do not think that such evidence is necessary. There is clear evidence from the plaintiff, her husband and her mother, which, if accepted, would support such a proposition and I am fully persuaded that as a consequence of the uncomfortable and painful symptoms that the plaintiff has sustained she does indeed exhibit a more morose and petulant aspect to the world than she did previously.

1. On the other hand, I do not overlook the fact that there have been numerous changes in Mrs Cook's life which may well have contributed to her condition. She is married and has had two young children in fairly quick succession. She has also undergone a hysterectomy operation and it would be unrealistic to ignore the likelihood that these factors have also contributed to her apparent disenchantment with life. I am satisfied by the plaintiff's evidence coupled with that of Mrs Garland and Mrs Julie Anne Hamilton, a theatre sister also employed at the Royal Hobart Hospital, that most aspects of nursing are physically demanding and require a substantial degree of physical fitness. I am also satisfied that the plaintiff finds that her work as a theatre sister aggravates, and is hampered by her injury. I have said that her capacity to play A Grade squash puts her disability in perspective. By this I do not mean that I regard the plaintiff as a witness who has deliberately exaggerated her symptoms to secure a financial advantage. Indeed, it may said that by persevering with her favourite sport and achieving a certain measure of excellence in it despite her handicap, she is to be commended. However, in my judgment, she is not permanently incapacitated from nursing and despite Mrs Garland's genuine and justifiable concern as to Mrs Cook's continued employment at the Royal Hobart Hospital, I do not think that it can be said that her present or past method of work has jeopardised the health of patients or put the staff under extra stress. Her complaints of difficulty in performing household tasks, her complaints of disability in performing her professional work and her complaints of headaches, neck aches and other symptoms resulting from the injury, were all seen by Mr G P Duffy, as consistent with the injury produced by the initial trauma to the neck. Furthermore, I do not regard Mr Duffy's evidence viewed overall, as casting doubt upon the plaintiff's essential veracity.

1. On the basis of Mr Duffy's evidence there is no cause to believe that the condition of Mrs Cook's neck will deteriorate further or that it will improve. Whilst her present condition should not immediately Jeopardise her continued employment at the Royal Hobart Hospital, I think it has been established that there is a substantial question mark over her long term future employment in the nursing profession. Though qualified and experienced nursing sisters are apparently much sought after at the present time, there is nothing to say that this state of affairs will continue indefinitely. If competing for jobs in the future she will be at a disadvantage. Such employment as she may secure may well be threatened by her irritability and her colleague's perception that she is throwing an unfair part of her work load upon them.

1. I am quite satisfied that it has been established on the balance of probabilities that the plaintiff's earning capacity had been curtailed and that this is likely to be productive of some significant degree of economic loss in the future. Apart from the possible causes of such loss as I have already enumerated, this may also arise from the plaintiff's perception that she needs substantial rest from time to time to gain relief from the debilitating effects of the symptoms which I have described. Once the immediate economic pressures of raising a young family have passed I think it likely that she will cease work at an earlier age than she otherwise would have contemplated.

1. None of these considerations permit me to approach the task of assessing economic loss on a precise or mathematical basis. I think this is a case, rather, where a broad judgment must be made which allows for the contingencies which I have mentioned. It has also been submitted that the plaintiff is entitled to damages on the basis of what is commonly called a Griffiths v Kerkemeyer claim, based upon the contention that she requires assistance in the carrying out of household duties and that the value of these services, though provided by her husband, and not paid for by the plaintiff, should nonetheless be the subject of reasonable compensation. It is notorious I think, that some claims of this kind have developed to unrealistic levels in the past 10 years or so and that the value or services claimed in respect of work done by unpaid friends, relatives or spouses have escalated to a fanciful level. It is perhaps not surprising that legislation was passed some months ago curtailing the scope of such claims for the future. Nonetheless I am satisfied that the plaintiff's husband provides services in and around the house at a level in excess of that which would be expected of a modern husband sharing the domestic chores with his working wife, probably to the extent of about 3 hours per week. As to the past, I am of the view that an allowance of $7 per hour for 3 hours per week should be granted as from the birth of the plaintiff's first child in October 1981. I do not think any precise mathematical calculation should be attempted in respect of future value of this part of the claim, because although the figures provided in the particulars of the plaintiff's claim have been helpful, there are simply too many contingencies. It is preferable I think to make a broad assessment only.

1. I assess the plaintiff's damages as follows:

1)       Pain, suffering and loss of amenities  $20,000.00

2)       Past economic loss  $     100.00

3)       Future economic loss  $40,000.00

4)       Griffiths v Kerkemeyer component

(i)     Past – October 1981 to May 1987

(5 years  7 months)  $6,138.00

(ii)    Future  $8,000.00

$14,138.00              $14,138.00

5)       Future cost of medical consultations,
          physiotherapy and associated travelling expenses.  $  2,000.00
  $76,238.00