Jan Napper v Catherine Abell

[2005] ACTSC 64

Jan Napper v Catherine Abell [2005] ACTSC 64 (1 August 2005)

NEGLIGENCE – contributory negligence – intersection collision
DAMAGES – personal injuries – soft tissue neck injury – no issue of principle

Griffiths v Kerkemeyer (1977) 139 CLR 161 applied
Fox v Wood (1981) 148 CLR 438 applied
Manser v Spry (1994) 68 ALJR 869 distinguished
Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 distinguished

No. SC 191 of 2003

Judge:          Ryan J
Supreme Court of the ACT
Date:           1 August 2005

IN THE SUPREME COURT OF THE     )
  )          No. SC 191 of 2003
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:JAN NAPPER

Plaintiff

AND:CATHERINE ABELL

Defendant

ORDER

Judge:  Ryan J
Date:  1 August 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $39,930.05.

2. The parties file and serve written submissions on the question of costs within 14 days.

3. There be liberty to either party to apply on not less than 48 hours notice in writing to the other party.

IN THE SUPREME COURT OF THE     )
  )          No. SC 191 of 2003
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:JAN NAPPER

Plaintiff

AND:CATHERINE ABELL

Defendant

Judge:  Ryan J
Date:  1 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

The evidence as to liability

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

1. The plaintiff was driving in a northerly direction in Curlewis Crescent.  She approached the intersection and claimed to have come to a stop, intending to make a right-hand turn into Hartigan Street.  She then proceeded slowly into the intersection.  She had seen the defendant’s vehicle, a Toyota Landcruiser (“the Toyota”) which was proceeding in a westerly direction on the southern carriageway of Hartigan Street.  From the plaintiff’s perception, the Toyota was travelling too fast, so she brought her car to a stop with the front protruding perhaps one foot beyond the kerbline into the intersection.  According to the plaintiff’s account, the Toyota, under heavy braking, slid into her vehicle, colliding with the front driver’s side headlight.  The plaintiff felt “incredible pressure” or a “tremendous sideways force” on impact.  She believed that the brakes on the Toyota had locked and it was no longer answering the steering wheel.  According to the plaintiff, the…