Darice Jones v Geoffrey WILLIAMS
[2002] ACTSC 123
•13 December 2002
IN THE SUPREME COURT OF THE )
) No. SC 4 of 2002
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:DARICE JONES
Plaintiff
AND:GEOFFREY WILLIAMS
Defendant
CORRIGENDUM
Coram: Master T. Connolly
Place: Canberra
Date: 16 December 2002
Amendment to Judgment dated 13 December 2002
Amend order 1 on orders page to read “Judgment for the plaintiff in the sum of $16,443.88
Delete first sentence of paragraph 29.
Amend paragraph 32 to read “This would amount to a total award of $49,331.65
Amend paragraph 34 to read “There will be judgment for the plaintiff in the sum of $16,443.88
Jayne Reece
Associate to the Master 12 December 2002
DARICE JONES v GEOFFREY WILLIAMS [2002] ACTSC 123 (13 December 2002)
CATCHWORDS
LIABILITY – negligence – motor vehicle accident – two car accident
DAMAGES – assessment – soft tissue injuries – no issue of principle
CONTRIBUTORY NEGLIGENCE - apportionment
Jones v Dunkel (1959) 101 CLR 298
Griffiths v Kerkemeyer (1977) 139 CLR 161
No. SC 4 of 2002
Coram: Master T. Connolly
Supreme Court of the ACT
Date: 13 December 2002
IN THE SUPREME COURT OF THE )
) No. SC 4 of 2002
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:DARICE JONES
Plaintiff
AND:GEOFFREY WILLIAMS
Defendant
ORDER
Coram: Master T. Connolly
Date: 13 December 2002
Place: Canberra
THE COURT ORDERS THAT:
Judgment for the plaintiff in the sum of $18,787.00
Costs reserved
This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on the morning of 22 December 2000 in Maryborough Street in Fyshwick in the Australian Capital Territory. The plaintiff was on her way to work with a passenger, Ms Cheryl Smith. They both lived in Gungahlin and worked for AAMI, an insurance company, with offices in Fyshwick. Ms Jones says that she drove her normal route to work, and she was proceeding along Maryborough Street in a generally south-easterly direction towards Wollongong Street. She says that it was her intention to turn into a car parking area south of Maryborough Street, and she indicated her intention to turn right. She says that the defendant sought to overtake her, and collided with her as she made the turn. She sustained soft tissue injuries to her neck, but has now returned to full time employment.
Liability was strongly in issue. The defendant’s case is that he was also driving south-easterly along Maryborough Street, and he observed the plaintiff’s car in front of him moving slowly and close to the left hand kerb, as though it was parking. It is common ground that there is free all day parking along that section of Maryborough Street, as well as parking in the car park area. The plaintiff said that sometimes she parked in the street, but that if it was going to be a hot day she would try to get a park in the car park, where there was shade. The defendant says that as he approached the plaintiff, suddenly and without warning, pulled to the right directly across his path, and that although he tried to veer right, they collided.
This is the not uncommon situation where there are conflicting versions of who is at fault. The plaintiff, in order to succeed, must establish on the balance of probabilities, that her version of events is to be preferred. I should add that, even if she establishes this, it was conceded that a degree of contributory negligence would be present, because on her evidence she did not say that she made any check behind before indicating and executing her turn, and she did not say that she was aware of the presence behind her of another vehicle, which would itself amount to a degree of contributory negligence.
There are two entrances to parking areas on the southern side of Maryborough Street in the general vicinity of the accident, both illustrated in photographs tendered in the plaintiff’s case. The plaintiff’s case is that she was intending to turn into the southernmost entrance driveway, being broadly opposite a kitchen appliance shop. The defendant’s evidence is that the collision occurred near the earlier driveway, being the driveway generally opposite a garden shop. Ms Smith, in her evidence, said that the collision took place “outside the Fyshwick Nursery”. On this point, her independent evidence favours the recollection of the defendant.
Ms Jones said that as she drove down Maryborough Street
“I had my right indicator on, I was making a right hand turn into the car park near the child care centre. As I did a car came from behind and impacted me on the drivers side door.”
She said that her car was at a right angle at the point of collision, in the middle of the road. She said that she heard a screech of brakes before the impact.
She said in her evidence-in-chief that she had a recollection that she put her indicators on at about the point of a cream building shown in the photograph in Exhibit A. In cross-examination she maintained that she had her indicators on, but acknowledged that because she always drove this street and indicated at this point, she was relying on her practice.
She says that after the impact the driver of the other vehicle was using harsh language to her passenger. She said the defendant called her passenger, Ms Smith, an idiot, and said “can’t you drive”. Ms Smith recalls the defendant saying “can’t you drive, what were you doing”, or something like that. Mr Williams acknowledges saying this to the plaintiff.
In cross-examination the plaintiff maintained that Mr Williams was addressing these remarks to Ms Smith, her passenger. This is clearly inherently unlikely - it was obvious that the plaintiff was the driver, and it makes no sense at all for Mr Williams to be asking the passenger what she was doing and can’t you drive.
In evidence in chief and in her cross-examination Ms Jones said that only Ms Smith spoke with Mr Williams. It is common ground that Mr Williams lent Ms Smith his mobile phone to enable her to call their workplace to explain that they had been involved in an accident, and that they would be late for work. Ms Jones said
“I didn’t say anything to Mr Williams. Cheryl was speaking to Mr Williams.”
She denied that she said sorry to him, and “sorry, I didn’t see you”, but then acknowledged that she did say sorry. She said “I said I am sorry to the client for what had happened”. She explained that she referred to Mr Williams as the client because it had emerged that he was insured with the company she and Ms Smith worked for. She acknowledged she said sorry to the defendant. She denied saying “I didn’t see you” to the defendant, but acknowledged that that was in fact the case, that is, that she had not seen the defendant before the point of impact. She then said that she did not recall saying she didn’t see him, and could not dispute that she said this.
Mr Williams said that he said “What the (expletive) were you thinking” to the plaintiff, and she said “I’m sorry”. He says that he said this because she had suddenly pulled out from the left hand side of the road in front of him with no indicator.
In cross-examination it was put to the plaintiff that she had been intending to park her car on the street, and had slowed down to a low speed and approached the extreme left hand side of the road, and then changed her mind and, thinking that the road was deserted, suddenly moved across the road to go into the shady carpark. She denied this.
Mr Williams said that he entered the street and was doing about 60 kilometres an hour and saw the plaintiff’s vehicle in front of him. He said traffic was light, and this was common ground. He says that the plaintiff was about 150 to 200 metres in front of him at this point. He said that the plaintiff was travelling on the extreme left, as though she was about to park, and doing about 20 kilometres an hour. He says that he continued, and the plaintiff appeared to be slowing down. He says that when he was about 20 to 30 metres away the plaintiff made a tight right hand turn, with no indicators. He says that he veered to the right, and at the point of impact his vehicle was mostly on the wrong side of the road. He says that the plaintiff’s vehicle was at about 70 degrees in the centre of the road at the point of impact. He says that he braked, but went into a skid, and impacted with the plaintiff.
There is a clear conflict between the evidence of the plaintiff and the defendant as to the circumstances of the accident. Although there was an independent witness in the plaintiff’s vehicle, Ms Smith, her evidence is really quite equivocal. She said only that she was in the car and
“Well, we went down Maryborough Street. We, Darice had said “I’m going to turn here”. And then I remember there was probably a screech, it was probably went on for about three to four seconds. And another car has run into the side of her car. On the drivers side”.
Ms Smith identified the point of impact as being that point consistent with the defendant’s recollection, at the more northerly driveway, rather than the plaintiff’s recollection of the more southerly driveway. She was asked where the plaintiff’s car was when the collision occurred, and she said
“If my recollection serves me right, I believe we were in the middle of the road”.
She could not recall whether she heard indicators before the impact.
Ms Smith was not cross-examined. She was not asked, and gave no evidence, as to any recollection as to where the car was before the impact, so her evidence is equivocal and does not, it seems to me, assist either party on this question. I am again left with two conflicting versions of the event.
The evidence of all of the witnesses is that the point of impact was at about the centre of the road. Ms Jones said that at the point of impact her car was at a right angle to the road, and Mr Williams said that at the point of impact her car was making a tight turn, and he estimated her angle to the road at about 70 degrees. Mr McDonough submitted that the presence of the plaintiff’s car at the centre line of the road and at an angle of between 70 degrees and ninety degrees is more consistent with a tight turn from the left hand side of the carriage way than a conventional right hand turn, as a vehicle proceeding along its carriageway and turning right would not be at such an angle at the centre line of the road. There is, it seems to me, much in this submission.
More significantly, Mr Williams says that after the accident he complained loudly and with some anger to the plaintiff about her driving, the actions consistent with his version of the plaintiff suddenly and with no warning, moving from the extreme left of the road and into his path. Mr Jones denied that these remarks were addressed to her, maintaining that his acknowledged complaints about the driving were directed to her passenger, a proposition that I find inherently unlikely. Mr Williams says that Ms Jones apologised for the accident, saying “I’m sorry”. Despite denying speaking to Mr Williams, Ms Jones in cross-examination eventually acknowledged that she had said “I’m sorry” to Mr Williams. This again, it seems to me, is more consistent with his version of events.
On all of the evidence I am not satisfied that the accident occurred in the circumstances described by Ms Jones, and on the whole I prefer the evidence of Mr Williams. This is not to say that I formed an adverse view as to the plaintiff’s credit, and indeed she presented, particularly in relation to her evidence as to her injuries and her efforts to get back to work, as a most honest witness. I am satisfied that she has clearly become confused as to some aspects of the accident, in particular the location, where her recollection is at odds with that of Mr Williams and Ms Smith. I accept that her recollection is genuine, though in error on this point, as it is in relation to other circumstances of the accident. She gave honest evidence in acknowledging that at no time did she see the defendant’s vehicle until the point of impact.
I therefore find, on the balance of probabilities, that the accident occurred as the plaintiff sought to execute a tight turn from a position close to the left hand kerb, without indicating. On this version of events it is logical that her car would have been, as both she and Mr Williams said it was, at about a right angle at the centre point of the road, when the impact occurred. On this version of events, however, it seems to me that it is still open to me to make a finding that, although there was clearly significant contributory negligence on the part of the plaintiff in turning without warning and without being aware that a vehicle was approaching from behind, the defendant was nevertheless negligent in continuing to proceed at about 60 kilometres an hour down a suburban street when a vehicle in front was slowing in the left hand kerb. When this vehicle then executed a turn the defendant was unable to bring his vehicle safely to a stop without colliding with the plaintiff. I therefore find that primary liability is established, although on the circumstances as I have found them to be, being broadly the defendant’s version of events, I also find that contributory negligence has been established. It is therefore appropriate to proceed to an assessment of damages before making an attribution of liability under the apportionment legislation.
Damages
The plaintiff was born in 1968. After completing her high school education she joined a bank and worked for some 13 years as a customer service officer. Before the accident Ms Jones had been working for some years as a temporary clerical worker for various organisations through a temporary employment service. She had been placed with AAMI Insurance at Fyshwick through this employment agency in June 2000, but shortly before the accident she left the employ of the temporary agency and took on a full time position with the Insurer, but doing essentially the same work.
She says that immediately after the accident she felt in shock, but was in no pain. She and Ms Smith were able to get a lift to work from a co-worker, and when they arrived her manager sent both of them home by taxi. She attended her general practitioner, and by that time, some hours after the impact, she says that she had pain in the neck, down the right arm, and into her lower back and right leg. She was sent to Calvary Hospital for x rays. These showed no abnormality, and the plaintiff was treated for whiplash type soft tissue injuries with physiotherapy and anti-inflammatory medication. She was given 6 weeks off work, and commenced a graduated return to work programme in mid-January 2001.
She presented for physiotherapy in early January, but found that the physiotherapy aggravated her condition. Her general practitioner referred her to a different physiotherapist, and she has reported good results from his treatment. Mr Daniell treated her throughout 2001, and as well as providing massage and joint manipulation, he developed an exercise program involving swimming and walking, which the plaintiff has followed with good results.
In February 2001 she was referred to Dr Speldewinde for a medico-legal report. He found on his first examination that there was some minor global restriction of movement in the cervical range, but by the time of his final examination in March 2001 there was a full range of movement as she was back to work full time. He said in November 2001 that the plaintiff
“presented with sub acute and resolving cervical and lumbar spinal and vertebral dysfunction related to the motor vehicle accident of 22 December 2000. She has been successfully undertaking a reasonable treatment program including passive therapies and moving onto active exercises in a self-managed capacity. She was progressively returning to her normal work.”
Ms Jones says that although she was able to return to full work hours, she has had some flare-ups and minor time off work. She left the employ of AAMI Insurance and has returned to work for the temporary employment agency, working full time hours at various firms or government agencies around Canberra. She says that she has some ongoing neck pain which can flare up, and occasional stiffness in the low back. She says that she alternates her sitting at work, and when working as a telephone receptionist she can alternate sitting and standing. She says that she sometimes has no symptoms at all, and this can last for weeks or months. When she has pain she says she takes Panadine Forte and tries to sleep it off.
In September 2002 Dr Speldewinde reported that the plaintiff has a full range of spinal movements with some tenderness in the neck. His opinion was that Ms Jones
“is making a steady and moderate recovery from her pain complaints dating from the motor vehicle accident. Over the next one to three years she will continue to make further improvements and may be left with minimal functional disabilities.”
No medical evidence was tendered by the defendant. She was seen by Dr Craven, a neurologist, but no report was served, so I can draw the inference that this report would not have assisted the defendant’s case (Jones v Dunkel (1959) 101 CLR 298). The plaintiff presented as a very frank witness in relation to her injuries, and it was not suggested that there was any exaggeration. She has clearly made an effort to return to full time hours and continue to work, and she acknowledges that while she has some ongoing flare ups of pain, she also has pain free periods.
I accept on the medical evidence that the plaintiff had significant cervical and low back pain in the period immediately following the accident, and that she has had a slow but steady recovery from this pain over the course of 2001. I accept her injuries, as described by Dr Speldewinde, are accident related. She also gave evidence that her periods were disrupted following the accident, but have now returned to normal. Dr Speldewinde notes in his 2002 report that this was investigated by a gynaecologist but no cause was found. This condition has now resolved, but on the evidence before me I am unable to link this to the accident.
I therefore assess the plaintiff, in relation to general damages, on the basis of resolving soft tissue injuries, and I would award damages in the sum of $30,000, with $25,000 for the past, generating interest of $965, for a total award of $30,965.
Out of pocket expenses for the past were sought in the agreed sum of $7028.75, and I would award this sum. There was no particularised claim for future expenses.
Counsel for the plaintiff said that her past wage loss claim would be for the gross amount of workers compensation paid, which was agreed in the sum of $12,366.65, which I would award. I am not satisfied on all of the medical evidence that any future economic loss claim of real significance is made out, given that she has been working full hours since mid-2001, and the prognosis from the doctors is that she is able to continue in her pre-accident work on a full time basis. At it’s highest the evidence is that she has taken a couple of days off since her return to full time work in early 2001, and given that the medical evidence supports further improvement, I am only satisfied that a very modest buffer of some $4000 is appropriate against the possibility of time off work over the next few years.
A Griffiths v Kerkemeyer claim was particularised on the basis that the plaintiff was cared for by her aunt on a full time basis immediately after the accident. The claim is for 8 weeks at 7 hours a day at $30 per hour. I would note at the outset that the $30 an hour is about twice the normal rate for such claims. It emerged in evidence that the aunt was staying with the plaintiff in Canberra for Christmas, and had arrived before the accident. I accept that during the period of acute pain the plaintiff required and received some assistance from her aunt, and that her father drove her to physiotherapy treatments during January 2001. I would award the sum of $2000 for past gratuitous care, inclusive of interest.
This would amount to a total award of $56,360.40.
Contributory Negligence
On the version of the facts as I have found them to be, namely that the plaintiff turned suddenly and without warning across the road from a position near the left hand side of the road, but that the defendant was travelling, albeit at or about the speed limit, at an excessive speed when he was aware that there was a vehicle in front of him apparently coming to a stop, I find that the accident was more the fault of the plaintiff than the defendant. I would assess responsibility on the basis of two thirds to the plaintiff and one third to the defendant. Accordingly I find contributory negligence in the order of 66%, and reduce the award of damages accordingly.
There will be judgment for the plaintiff in the sum of $18,787
I will hear the parties as to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly
Associate:
Date: 13 December 2002
Counsel for the Plaintiff: Mr R Mildren
Solicitor for the Plaintiff: Snedden Hall & Gallop
Counsel for the Defendant: Mr M A McDonogh
Solicitor for the Defendant: Abbott Tout
Date of hearing: 13 November 2002
Date of judgment: 13 December 2002
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