Martoccia, Teresa v Parks Victoria
[2009] VCC 1196
•9 September 2009
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised (Not) Restricted |
| AT MELBOURNE CIVIL DIVISION DAMAGES Case No. CI-07-01393 | |
| TERESA MARTOCCIA | Plaintiff |
| V | |
| PARKS VICTORIA | Defendant |
| --- | |
| JUDGE: | Judge Howie |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26, 27, 28, 31 August 2009, 1, 2, 3 September |
| DATE OF JUDGMENT: | 9 September 2009 |
| CASE MAY BE CITED AS: | Martoccia, Teresa v Parks Victoria |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1196 |
| REASONS FOR JUDGMENT --- Catchwords: | |
| --- |
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC and Mr M Walsh | Hounslow & Associates |
| For the Defendant | Mr A Middleton | TressCox Lawyers |
4
commenced with the filing of a writ and statement of claim on 17 April 2007.
On 27 June 2007, pursuant to the order of her Honour Judge Davis it was set
down for trial on 21 January 2008, with an estimate of 2-3 days. On 21
January 2008, pursuant to the order of his Honour Judge IJK Ross, it was
adjourned to a date to be fixed. On 7 May 2008, pursuant to the order of her
Honour Judge Davis, it was again fixed for trial (the second time), this time on
This proceeding has had a somewhat chequered and unsatisfactory history. It pursuant to the order of his Honour Judge Holt, the trial date of 10 September 2008 was vacated and the proceeding was listed for mention on 14 November 2008. On 14 November 2008, pursuant to the order of his Honour Judge Holt, the proceeding was fixed for trial (the third time) on 21 April 2009, with an estimate of 3-4 days. It was marked not reached on 21 April 2009 and his Honour Judge Misso, ordered that it be refixed for trial, with an estimate of 4- 5 days.
5 1 On 20 November 2005 the plaintiff was riding her bicycle on a bike path on the north side of the Yarra River in Richmond to the west of Church Street. The path is called the Yarra Trail and runs approximately east west. The
plaintiff was travelling in a westerly direction on the southern side of the
path. As she rode down a ramp and approached a sharp turn in the path she
was confronted by a large plastic barrier partially obstructing her side of the
path and two cyclists travelling in the opposite direction, one on each side of
the dividing line. She diverged to the right, struck the railing on the northern
side, flipped over and fell heavily on her back. As a result of the fall she
suffered injuries, the principal injury being the fracture of her pelvis in three
places and an injury to her low back.2 The defendant Parks Victoria is a public authority established as a body corporate pursuant to the Parks Victoria Act 1998. It was acknowledged on behalf of the defendant that, in the exercise of its statutory functions, it was responsible for the maintenance and management of the bike path at the relevant time, and had placed the barrier in its position on the path.
3 The parties agree that the plaintiff’s injury is a significant injury in accordance with Part VBA of the Wrongs Act 1958, a Medical Panel having determined that the degree of whole person impairment resulting from the physical injury to the plaintiff satisfied the threshold level.
On 22 May 2009 her Honour Judge Davis refixed the proceeding for trial with Her Honour made a number of orders by consent with respect to the conduct of the trial, including an order that no later than 28 days before the trial date the parties exchange any further medical and/or expert reports concerning damages and liability, along with supporting documentation.
6 As a consequence the proceeding was listed before me as a trial to take four to five days commencing on 26 August 2009. On that day there was yet again an application for an adjournment. It came about because on the previous
evening the plaintiff had served on the defendant a report from a psychiatrist, Levy and rely upon his evidence, Mr Richards SC, senior counsel for the plaintiff, acknowledged that in serving Dr Levy’s report there had been a failure to comply with the order of Judge Davis, and advised that he did not intend to call Dr Levy as a witness. Mr Richards applied to amend the particulars of injury to add a further particular “(k) psychological reaction, including depression”. The preceding particular of injury in subparagraph (j) was “stress, shock and anxiety”. 7 Mr Middleton for the defendant opposed the amendment on the basis that the defendant had been taken by surprise and had not had opportunity to investigate the alleged psychological reaction and depression. However, it emerged in the course of Mr Middleton’s submission that a report of a psychiatrist, Dr Kaplan, had been served on the defendant’s solicitors on 27 June 2009, two months prior to the date of commencement of the trial. In that report dated 22 June 2009, Dr Kaplan expressed the opinion that the plaintiff had developed an adjustment disorder with depressed mood, a condition directly related to her physical injuries and the impact those injuries have had on her lifestyle. Dr Kaplan reported that the plaintiff’s physical disability and resultant limitations imposed upon her by her pain and inability to lead her normal active lifestyle had caused her frustration, irritability and other consequences. He stated that she is likely to remain prone to depression and anxiety as long as her pain persists and she is unable to resume her normal active lifestyle and that supportive psychotherapy would assist her. He also reported that she was taking the medication Endep, as well as other medication.
8 of being taken by surprise by the proposed amendment. The defendant had
long had notice of the nature of the plaintiff’s physical injuries and of the
allegation that she had suffered stress, shock and anxiety. Importantly, two
months prior to the commencement of the trial the plaintiff’s solicitors had
served on the defendant’s solicitors a copy of Dr Kaplan’s report, which
provided comprehensive detail of what the plaintiff alleged concerning her
psychological reaction and depression, and Dr Kaplan’s assessment and
opinion concerning those matters. The defendant had opportunity to have the
In my opinion, there was no genuine foundation to the defendant’s complaint Mr Middleton advised in his submissions, a “decision was made” by the defendant’s solicitor that “we thought we could meet” the matters set out in Dr Kaplan’s report. (t 10) In other words, the defendant’s legal representatives were aware of the matters referred to in Dr Kaplan’s report and made the decision not to have the plaintiff examined by a psychiatrist. Leave was granted to the plaintiff to make the amendment sought.
9 Mr Middleton sought an adjournment to enable the defendant to be examined with regard to psychological reaction and depression. I did not accede to that application. I did not consider that refusal of an adjournment would result in injustice to the defendant. The defendant had Dr Kaplan’s report since 27
June 2009, had the opportunity to have the plaintiff assessed, considered the contents of the report and made the decision not to have the plaintiff examined. Obviously, fairness to the parties is of the utmost importance. I did not consider that fairness to the defendant necessitated an adjournment. I advised Mr Middleton that if the defendant wished to have the plaintiff examined in the course of the trial it would be difficult to resist an application for leave to call the examining doctor. There are other matters to be taken into account in considering what justice requires. This was the fourth time this proceeding had been fixed for trial. Five days had been allocated for the trial. On the earlier occasions, and on this occasion, the opportunity of other litigants in other cases awaiting hearing to have their cases heard, were affected by the allocation of the court’s time to hear this case. Furthermore, there is a public interest in achieving the efficient use of the court’s resources. In my opinion the point were the trial should commence was long overdue and yet another adjournment would have been an embarrassing failure to use the court’s resources appropriately. (see Sali v SPC Ltd (1993) 67 ALJR 841 at 843-4 per Brennan, Deane and McHugh JJ; Alucraft v Grocon (No 1) [1996] 2 VR 377 per Smith J; Aon Risk Services v ANU [2009] HCA 27 at [26]-[30] per French CJ, [57], [92]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
10 The trial occupied six hearing days plus a morning for a view of the bike path where the accident occurred.
I first consider the accident and commence with the evidence of the plaintiff
11 On the morning of Sunday 20 November 2005 the plaintiff, her partner Russell Edwards and three friends, Betty Bitzilis, Rino Caron and Deta Bitzilis set out at 9.30 or 10 am to ride their bicycles from Mr Edward’s home in Glen Iris along the Yarra bike path to Southbank for breakfast. The bike path was on the north side of the river. Generally speaking the path ran east west, and obviously, was not a straight track, but had curves and bends and ups and downs. Parts of the path were a concrete pontoon above the water at the edge of the river and in parts there were timber ramps. The plaintiff was riding a man’s bicycle which belonged to Mr Russell’s son. It was equipped with brakes in good condition on the front and rear wheels. She had ridden the bicycle before, and was familiar with it, but she had not previously ridden a bicycle on this bicycle path.
12 a child, but only every now and again as a teenager, and occasionally and
casually as an adult on one of her children’s bicycles. She took up bike riding
with her partner when she met him 12 months before the accident. They rode
The plaintiff was not a bike rider of substantial experience. She had ridden as considered herself to be a confidant rider. She had not previously been in a situation which required her to make a quick decision to avoid an accident. (t 84-86 xxn)
13 As the plaintiff approached the place where the accident occurred, which was to the west of the Church Street Bridge and the railway bridge, but before the Hoddle Bridge, she was riding third in the group. She was riding at a speed, which she was unable to determine in kph (although different figures were
put to her), but which she considered to be a fast speed. The path curves a
little and rises slightly with a rail fence on the left side as it reaches the top of
the rise and the beginning of a ramp. The path is 3 metres in width, but it
narrows on reaching the ramp to 2.5 metres. A painted line in the middle of
the path divides it for the purposes of traffic travelling in either direction. The
ramp is approximately 50 metres in length. It descends quite steeply
downhill, and at the bottom, a few metres beyond the western end of the
ramp, the path, which is at that point a concrete pontoon path, bends quite
sharply to the right. This path is 3 m in width, but as the metal fences on
either side are on an angle towards the centre, the space available to users of
the path was reduced to 2.82 m.14 changed from a smooth concrete surface to a bumpy timber surface. The
ramp was steep and she applied the brakes on her bike to reduce her speed.
She applied front and rear brakes and she applied them gradually in the belief
that she would “flip over” if she had applied them firmly. When she was part
As the plaintiff descended down the ramp she was conscious that she had of the ramp which appeared to her to occupy about half of the space on her side of the path. As she approached the bottom of the ramp she saw that there were two cyclists travelling in the opposite direction approaching the end of the ramp, one on each side of the dividing line, and travelling very quickly. Confronted by this situation the plaintiff considered that she could not stop, had to get out of the way of the cyclists, one of whom was on her side of the path and together with the barrier completely obstructed that side of the path, and swung to the right hand side of the path. The handlebar of her bicycle clipped the railing of the fence on the right hand or north side of the path and the plaintiff was flipped forward and landed on her back.
15 In her evidence in chief the plaintiff gave the following narrative of how the accident occurred:
you’re cycling along and you can’t see what you’re coming to. You’re
at the top. The first thing I noticed was you’re coming to a descent
and the ground changes. It’s no longer concrete, it changes. It’s
timber and it’s bumpy. It’s not even, it’s bumpy and it’s steep, it’s
very steep. So the first thing I needed to do was start to brake, because
I picked up speed automatically. You just pick up speed. So I’m
adjusting my brakes and you’re moving fairly fast. So while this is
happening, you’re nearly halfway down and then I noticed the
obstacle on my left-hand side and the obstacle is taking half of my
space and I’m thinking, “What the heck is that?” and I’m still braking
because you can’t brake all at once because the steepness – if you did
that, your bike would flip over, so you need to adjust your brakes
gradually. By the time I’m doing this I’m nearly at the bottom and
while I’m nearly at the bottom, there are two cyclists approaching
from the other end and they’re side by side and I’m thinking, “Now
I’ve got the obstacle, I’ve got the two cyclists, I’m nearly in the
middle, where do I go?” I can’t go to my left. So I had no choice but to
go out of their way. I had to go all the way to my right and I’m past
the obstacle at this stage. That’s when my handlebar clipped under the
railing and flipped me forward and the next thing I know is I flipped
forward and landed flat on my back. (t 45-46)
16
placed on the path by the defendant, roughly parallel with, and chained to,
the left hand fence, to warn of a gap between the metal plate attached to the
end of the ramp and the adjoining concrete path. It has been agreed by
counsel that the base of the barrier was 2.15 m long and .53 m wide at the
The obstacle on the path was in fact a large orange or red plastic barrier barrier was positioned was 3 m. As the railing of the fence sloped towards the centre of the path the width above the path available for a cyclist was reduced to 2.82 m. It was the plaintiff’s impression that the barrier was not flush with the fence, but stuck out a little at the western end. (t 47,127-8) The other cyclists, Mr Caron and Mr Edwards, also gave evidence that the western end of the barrier protruded a little. I accept this evidence, although it is not of great significance as it is clear that the barrier obstructed approximately one third of the path available to a cyclist travelling west. It is clear that if the balance of the west bound lane was occupied by a cyclist travelling east there was no room in the lane for a west bound cyclist at the foot of the ramp where the barrier had been placed.
17
The plaintiff was, of course, confronted by an emergency and required to make a snap decision. She said that she felt that she had “nowhere to go”, in the sense that if she continued on her course she would have either collided with the barrier or have to go through the two cyclists in front of her. Her other alternative was to go to the gap on the other side of the two cyclists. She chose the gap. (t 48) She directed her bicycle to the gap on her right side, between the fence and the other cyclist. The handlebar of her bicycle clipped the fence under the railing of the on the right hand (or northern) side of the path. She had passed the barrier and the two cyclists when her bike clipped the fence. (t 52)
18 travelling slowly and the cyclists were going fast. It happened very quickly.
Her evidence was that as she approached the foot of the ramp she was left. They were moving very, very fast. I had to make a choice. Do I continue to my left or do I go straight towards them, so I chose to go to my right, where I had some room to move.” (t 123 xxn)
19
With respect to the speed she was travelling the plaintiff’s evidence was that as she descended the ramp she had applied her both brakes “gradually”, but nevertheless reached the bottom of the ramp “fairly quickly”. “So by the time
bicycle was equipped with front and rear wheel brakes in good order. She did
not brake forcefully because she thought that if she did so she would “flip”.
you brake and see the obstacle, you’re halfway there.” (t 49) The plaintiff’s was aware that there were other cyclists behind her, and she had to keep going (t 165), and that the cyclist in front of her “would have gone right through me”. (t 166)
20
rode along the bike path she was going fast. (t 96-7 xxn) Although the
descending fence on the north side of the ramp could be seen about 30 m from
the top of the ramp, there was little warning of the nature of the ramp. “You
can tell that there’s a change coming up, but you certainly don’t know what it
is.” (t 99, 100) She saw the yellow sign at the edge of the path, but could not
make out what it was because of graffiti on the sign. (t 104 xxn) As she moved
Her bike was not equipped with a speedometer, but she thought that as she increased. She noticed that the ramp was steep. She applied her brakes. They slowed her down. She saw the barrier at the bottom of the ramp when she was a couple of metres on to the ramp, exactly how far down she could not tell, 2 or 3 m. (t 106-111 xxn)
21
As she came down the ramp she saw 2 cyclists coming around the bend. (t 112) She was going slower by then. She had been gradually braking the whole time. The cyclists were going fast, they were flying. She was going slow by that stage. (t 122 xxn)
22
With regard to the plaintiff’s vision her evidence was that as she came down the ramp she had no view around the corner at the bottom of the ramp. (t 50) When she first saw the two cyclists they were just coming around the bend,
travelling in the opposite direction, one on either side of the middle line.
There was no room to pass to the left of them. (t 54)23 for about 50 metres beyond the bend, something like 80 m away. She said
that there were trees in the way, or shrubs. (t 114-115, 120 xxn) The
photographs taken by Mr Edwards in January 2006 suggest that figures can be
seen on the path beyond the bend. (t 116) My own impression from the view,
and from photographs taken by Mr Edwards in January 2006, is that the
She did not agree that 18 paces from the barrier she could see oncoming traffic obscured to some extent, a significant extent in my opinion, by the northern fence and the pontoon support poles and there is not a clear view of oncoming traffic. This is significant for a cyclist having to concentrate in controlling descending speed on the ramp. I am not satisfied that foliage on the northern side of the path significantly obscured the plaintiff’s view, but it may have limited the vision of eastbound cyclists of cyclists descending the ramp in the opposite direction.
24
Since the accident signs have been painted on the path with the warning “Slow down” and “Bend ahead”. Not unreasonably, the plaintiff says that if such signs had been present she would have slowed down, been more prepared and looked for the bend. (t 55)
25
The plaintiff agreed that if the other cyclist had not been on the path coming the other way there was sufficient room for her to pass the barrier. (t 132 xxn)
26
Peter Teesdale, the park ranger employed by the defendant in charge of the care and maintenance of the Yarra Trail in October 2005, gave evidence that the red barrier was placed in position at the foot of the ramp on 20 October 2005. On 18 October 2005 he became aware that there was a gap between the
edge of the metal plate at the bottom of the ramp and the adjoining path. The path floated on a pontoon or pontoons and the build up of silt had caused the gap. Mr Teesdale, in his evidence in chief, said that he had observed the gap
being, at the most, 6 to 8 inches, but in re-examination he qualified that to
about 4 inches at the southern end.27
The red barrier was put there to warn trail users of the gap and positioned flush with the southern fence and chained at both ends to the handrail. The barrier remained in that position until 22 January 2006 when a steel joinder plate was installed at the end of the ramp covering the gap. The purpose of the barrier was to give a warning of the change in traffic condition in that
section of the path to cyclists and pedestrians. 28
Mr Teesdale’s evidence was that if there was a hazardous situation on the path a warning sign could be prepared reasonably within 48 hours and the cost would not be expensive.
29
Rino Caron, who was in the plaintiff’s group, and riding about 30 to 40 metres behind her, was about a cycle length along the ramp, and saw the plaintiff at the bottom of the ramp. He was about 40 metres behind her.
30
He estimated that he was travelling at 15 to 20 kph, which he described as a medium speed. He did not know what speed she was travelling but estimated about 20kph. He was maintaining a similar speed. He considered the descent down the ramp to be a steep descent, and, as the ramp surface was bumpy, concentrated on applying his brakes.
31
When he was about halfway down the ramp he observed cyclists coming towards him and at the same time saw the plaintiffs legs in the air as she landed on her back. The handlebar of her bike caught in the rail of the fence
on the right side and the motion of the plaintiff and the rear of the bike
continued causing the rear of the bike to swing out to the left and towards the
middle of the path and the plaintiff to be thrown off the bike to the path. He
saw her handlebars catch in the fence and the plaintiff fall to the path. He was
able to apply his brakes and stop before colliding with her. He reached the
plaintiff. She was in pain and very distressed. It was a difficult situation, “a
little bit chaotic” with bikes passing in each direction. After about 5 to 10
minutes he encouraged her to move because of the situation, and assisted her
as she held the handrail on the northern side and moved very slowly along
the path to the west.32
He was on the path and rode his bicycle back up the hill, east, looking for the closest exit. He observed that east bound cyclists tended to accelerate as they approached the bend to go up the ramp. He also observed that the barrier was
not flush with the southern fence but was further out from the fence at the
western end, towards the middle of the bike path.33
His evidence was that there were no signs for west or east bound cyclists warning of the presence of the plastic barrier.
34
Mr Edwards came back and eventually, after about an hour, they moved the plaintiff to the car park near Hoddle Bridge and took her to the Northern Hospital.
35
Russell Edwards is the plaintiff’s partner. He was riding some distance in front of her when the accident occurred. He did not see the accident. He returned to where it took place and assisted the plaintiff to the car and took her to the Northern Hospital.
36
He was a regular user of the bike path, cycling from his home in Glen Iris to his work at Port Melbourne and back most days. In January 2006 he took photographs of the bike path where the accident took place.
37
His evidence was that the yellow sign on the northern verge of the path to the east of the ramp had graffiti on it on the day of the accident, and that it had been in that condition for months.
38
There were no other signs warning of a bend, or a descending ramp. There were no signs warning of the presence of the barrier. The sign with the curved arrow indicating a curve in the bike path could not be seen when commencing the descent down the ramp because of the vegetation on the north side of the path.
39
The barrier at the bottom of the ramp had been in position for about a month. It was not flush with the bike path. The western end was sticking out. It was similar as shown in the photograph in exhibit 6.
40
For east bound cyclists there was no warning of the presence of the barrier, and no warning or direction to ride in single file.
41
The bicycle being ridden by the plaintiff belonged to Mr Edwards’ son. It was prepared by Mr Edwards to be suitable for the plaintiff in advance of the journey. The brakes were in good condition. At an earlier time he had advised Ms Martoccia to apply the brakes smoothly and evenly.
42
He had observed the barrier on the path often. It presented a problem daily because it obstructed the path (by about one third of the west bound lane). The sharp bend at the bottom of the ramp was difficult enough to get around
authority about these matters. He was challenged firmly about this by Mr
without the obstacle being in the way. He had not complained to anyone in member of the public using a bike path would not complain to some unknown authority about a hazard that had obviously been placed by someone in authority.
43
He agreed that an eastbound cyclist would be able to see the red barrier at least 30 metres before getting to the kink.
44
He recalled the traffic leading up to the ramp to have been “quite busy” on the morning of the accident.
45
Andrew O’Brien, a civil engineer, with a specialised knowledge with respect to road design and traffic, and of publications relating to bicycle paths and in particular a document entitled Guide to Traffic Engineering Practice Part 14 – Bicycles (“the Guide”) published by Austroads, an association of State and
Territory road authorities. 46 section of the bicycle path that caused it to be a risk to the safety of cyclists
The evidence of Mr O’Brien was that there were features of the relevant 3m as it approaches the ramp from both directions, narrowing to 2.5m on the ramp. Although the pontoon path west of the ramp was 3m in width, steel rail fencing sloping inwards reduced the space available to users to 2.82m. A painted line identified two halves of the path. The space available to traffic in each direction was in the order of 1.41m.
47
The Guide nominated a space of 1m in width as the operating space for a bicycle, and recommended a lateral clearance space of 1m between bicycles approaching in opposite directions for safe operation on a major commuting bicycle path. Mr O’Brien considered the Yarra bike path to be a major commuting bicycle path, and although this opinion was challenged by Mr Middleton, there was no evidence to the contrary, and I do not doubt that it is properly considered to be a major commuting path. The Guide also recommended a minimum lateral clearance of 0.5m between the edge of the path and any obstacle greater than 0.15m high.
48
If consideration is given to the Guide, it is apparent that a path with an operating width of 2.5m on the ramp and 2.82m on the path is a narrower path than recommended by the Guide, and raises safety concerns.
49
The ramp, descending from the east to west, was of timber planks with a textured surface. The evidence of Mr O’Brien was that construction plans showed that the gradient of the ramp was 1 in 12, that is approximately 8.3%.
The steep downhill grade made it more difficult for a cyclist descending the ramp to slow down and stop. The Guide recommended that gradients mare than 5% should not be provided unless unavoidable. The steep gradient of the
ramp was therefore a safety consideration. 50
Another safety feature identified by Mr O’Brien was the location of a sharp bend (or kink, as he called it) a short distance from the steep ramp. The distance was agreed to be approximately 9 or 10 m.
51
The close proximity of the bend to the ramp presented an additional feature to be considered by a westbound cyclist descending the ramp, and by a eastbound cyclist having to ascend the ramp immediately after the bend. While cyclists on the path may have had a view of traffic in the opposite direction, that view was restricted to some extent by the bend, by the pontoon anchor poles and by the railing of the fence on the northern side of the path.
52
with an absolute minimum of 15m. Mr O’Brien estimated the bend near the
end of the ramp to be a lot less than 15m, about 2m in his estimation. In his
opinion it was a very sharp bend, with a very short radius, which would have
the effect of causing an eastbound cyclist to move away from the northern
fence towards the centre line (and a westbound cyclist to ride across the centre
For cyclists travelling at 30kph the Guide recommended a bend radius of 30m, to cyclists.
53
The evidence of Mr O’Brien was that the placing of the plastic barrier at the bottom of the ramp had the effect of narrowing the path and was a hazard, limiting the space available to a westbound cyclist to less than a metre
towards the centre of the path. In his opinion signs warning of the hazard
should have been placed in advance of the hazard. For westbound cyclists,
his opinion was that there should have been a warning sign on the southern
railing approximately 50m before the bend stating “Hazard ahead. Path
narrows. Form single line”, and a further sign approximately 30m before the
hazard stating “Prepare to stop.” For eastbound cyclists, his opinion was that
there should have been a sign on the top of the northern railing stating
“Hazard ahead. Path narrows. Form single line.”54
Mr Middleton submitted that I should reject the evidence of Mr O’Brien. I do not accede to that submission. In my opinion some of the features of the bike path about which Mr O’Brien gave evidence, such as the width of the path,
the gradient of the ramp, the proximity of the ramp to the bend, and the
difficulties of vision, raise safety issues with respect to the bike path in the
area where the plaintiff’s accident occurred. These difficulties are apparent
from a view of the bike path. Mr O’Brien’s analysis of them is relevant not
only to an evaluation of the risk presented by the positioning of the plastic
barrier, but to the foreseeability of the risk in these circumstances, and to the
reasonable steps that might be taken to remove or alleviate the risk.55 I now consider the question whether there was negligence by the defendant that was a cause of the plaintiff’s loss and damage. It is not in dispute that
there existed between the defendant and the plaintiff a sufficient relationship
of proximity that a reasonable person in the defendant’s position would
foresee that carelessness on its part may be likely to cause damage to the
plaintiff, and that the defendant owed the plaintiff a duty of care (see Wyong
Shire Council v Shirt 146 CLR 40 at 44 per Mason J).56
The issue to be determined is whether there was a breach of the duty of care owed by the defendant. To answer that question I must first ask 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. It is also necessary to determine what a reasonable person would do by way of response to the risk, taking into account the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action, and any other conflicting duties which the defendant may have. (at 47-8)
57 had features that made it hazardous for both westbound and eastbound
cyclists. These features were the narrowness of the path, the steep gradient of
I am satisfied that the section of the bicycle path where the accident took place bend, and the restricted vision of cyclists travelling in each direction. These difficulties were apparent from an examination of that section of the path. The guidelines and recommendations of the Austroad Guide with respect to bicycle paths, as outlined in the evidence of Mr Andrew O’Brien drew attention to the safety difficulties raised by such features.
58
I am satisfied that it was foreseeable that some cyclists using the path would ride two abreast and on the incorrect side of the path. In his final submissions Mr Middleton acknowledged that it was foreseeable that cyclists would ride on the wrong side of the path. (t 504)
59
Having regard to these features of this section of the bicycle path, the placing of the large red barrier at the foot of the ramp reduced the space available to a westbound cyclist, such as the plaintiff, by at least one third. In my judgment a reasonable person in the defendant’s position would have foreseen that the placing of the barrier without an appropriate warning to cyclists travelling in each direction involved a risk of injury to cyclists, such as the plaintiff, using the path. It may not have been unreasonable for the defendant to have put
the barrier in position, as Mr Middleton argued (t 480), but it was
unreasonable to place the barrier in a section of the path where there were
hazardous features without giving a warning to cyclists that there was a
hazard ahead and it was therefore necessary to proceed slowly in a single line
on the correct side of the path.60
I agree with Mr O’Brien that a warning sign on the southern railing approximately 50 m east of the ramp stating “Hazard ahead. Path narrows. Form single line”, and a further sign 30 m before the barrier stating “Prepare to stop”, were appropriate for westbound cyclists, and a sign on the northern railing 50 m before the bend stating “Hazard ahead. Path narrows. Form single line” was appropriate for eastbound cyclists. Mr Teesedale’s evidence was that signs could have been prepared promptly within 48 hours and would be relatively inexpensive.
61
I am satisfied that there was negligence by the defendant which was a cause of the plaintiff’s injury, loss and damage.
62
The plaintiff also pleaded that the defendant was in breach of the duty owed to the plaintiff pursuant to section 14(B) of the Wrongs Act . Having regard to the finding with respect to negligence it is unnecessary to consider this
matter further. 63
I turn then to the question of assessment of the plaintiff’s damages. The plaintiff is 52 years of age, her date of birth being 13 July 1957. She left school at the age of 14, worked in a factory for several years, married at 17, had two children, both now schoolteachers, divorced at 38, worked in home help for the City of Whittlesea. In her evidence in chief she said that in that job she sustained an injury to her back in 1987, and had treatment for that injury until about 1992 or 1993, or about 6 or 7 years. Her evidence was that the injury “totally resolved” and that she had “no treatment, no pain” in the 10 years prior to the bicycle accident. (t 40) In the 1990’s she trained as a medical receptionist and thereafter worked as a medical receptionist. For some years prior to the accident in November 2005 she worked 25 hours a week for a psychiatrist Dr Syrota and 16 to 20 hours a week for the Plaza Clinic in Lalor. She enjoyed her work as a receptionist, the people she worked with, the patients and the doctors she worked for. (t 43)
64
In 2004, some 12 months before the accident, the plaintiff commenced a relationship with Russell Edwards. The plaintiff continued to reside in her home at Mill Park, where her son also lived, and Mr Edwards resided at his home in Glen Iris, where his two children also lived. The plaintiff and Mr Edwards enjoyed outdoor activities together, such as cycling, bushwalking, swimming, some tennis, gardening, as well as dancing. They did “a fair bit” of cycling, with journeys averaging 20 to 25 kilometres, sometimes longer. She did a lot of dancing, Latin dancing, regularly attended the gym, and considered herself to be healthy, strong and very fit. (t 43)
65
The plaintiff was employed as a medical receptionist at the Plaza Clinic in Lalor. Since the beginning of this year she has been working 27.5 hours a week. In the two and a half years before the accident that she was working
between 36 and 40 hours a week, sometimes more. She reduced her working
hours because she was unable to cope with the pain in her lower back. (t 37)66
The plaintiff hit the concrete hard, flat on her back. When she attempted to move she felt pain in her groin and leg. When others attempted to move her she felt like passing out. She was wheeled on the bike to Mr Edwards’ car and taken to Northern Hospital. She was in the hospital for 5 days. The pain was very severe in the groin and pelvis. She was given morphine and other analgesics. (t 56-58)
67
Following discharge from hospital she was treated by the doctors at the Plaza Clinic in Lalor. She was prescribed analgesic medication OxyContin, Tramadol, and a morphine based analgesic OxyNorm. She was confined to bed for a month. (t 58) The pain in the groin and pubic area was severe, and the doctors kept her sedated. She was absent from work for 3 months. It was necessary for her to use a commode for a couple of months. She used a walking frame for two and a half months. When she went back to work she was using a walking stick. By then the pain was in her pelvis, groin and lower back. It was severe pain, and there were occasions when she broke down at work. (t 59, 60)
68
In xxn she said that when she went home from hospital she was suffering from back pain. (t 134) It was put to her that she did not injure her back in the bicycle accident, and had no back pain. She disagreed. (t 135-6) She did not agree that she had not mentioned back pain to Dr Beeby. (t 139-140)
69
Initially she returned to work on reduced hours. She gradually increased those hours during 2006 until she was working her full hours, up to 40 hours a week. (t 59, 60)
70
The plaintiff’s evidence was that the injuries she suffered and the associated pain and disability affected her emotionally, and in February 2007 a doctor at the clinic started her on anti-depressant medication Efexor. (t 61) Later Dr Chauhan started her on Endep because she wasn’t sleeping through the night with pain and Endep was prescribed to would help with depression and sleep management. (t 62)
71
The plaintiff’s evidence was that the low back pain is always there. She attends an osteopath. On 13 February 2009 she had injections into her low back at Lalor Radiology, for pain in her low back, having been referred by Dr Chauhan, and she had a second lot of injections on 22 April 2009. (t 62-3) The level of pain varies. Activity affects it. It is more severe at the end of the day after work. Her job as a medical receptionist requires her to stand. She has spasms in her back. She takes the following medication: Topomax 100 mgms twice a day, Tramal 200 mgms twice a day, sometimes she doubles that, Norflex 100 mgms. Topomax and Norflex are muscle relaxants and also for pain relief. Tramal is for pain relief. They are prescription drugs. She also takes Nurofen Plus during the day, 2, 4 or 6, depending on how she is coping. She takes Endep 50 mgms, one at night to assist sleeping, and another anti- depressant Cypramil 20 mgms, one at night. (t 64-5)
72
73
Dr Levy is encouraging her to return to bike riding. She has done some bike riding at Cape Paterson, but is nervous and fearful. (t 149 xxn) She has tried walking and stretch exercises at home. (t 149) She has done some swimming,
which she acknowledges is good for the back. (t 151) 74
She has pain in the groin, and the hip, but the back pain is worse. Sitting, standing and walking aggravate the pain. (t 153) She has difficulty getting in and out of a car. She has a car with manual transmission and engaging the clutch to change gears, and applying the accelerator and brake, cause pain. (t 154) Squatting is painful. Gardening, and domestic tasks, have exacerbated her back pain. ( 157)
75
The plaintiff’s partner Mr Edwards, a practical and matter of fact sort of man, observed the plaintiff in considerable pain and distress following the accident. He continues to observe her in pain, to have difficulty when rising from a
uncomfortable. His evidence was that her activities have diminished greatly.
Dancing has finished. She does little walking. Before the accident she walked
to work regularly and as he put it ‘was always at the gym”. Her injuries have
had a significant effect on her life and caused a change in her personality
making her much more dour and reserved than she was before the accident.
chair, to be tired and distressed after a working day and in pain and accident has had a dramatic effect on their relationship through a loss of libido and a general loss of enjoyment of life. She is often tearful.
76
Mr Caron, a friend of the plaintiff, also testified that since the accident the plaintiff is a lot quieter, less outgoing, less socially active and much less physically active.
77
An x-ray of the pelvis dated 6 December 2005 indicated a minimally displaced fracture at the junction of the left superior ramus and body of the pubis, with an undisplaced fracture of the inferior pubic ramus and minimal inferior displacement of the body of the pubis.
78
A bone scan on 29 December 2005 revealed findings consistent with a recent stress fracture through the left sacroiliac joint, the left symphysis pubis and adjacent superior pubic ramus, and a demonstrable injury to the medial aspect of the left inferior pubic ramus.
79
Mr John O’Brien, the orthopaedic surgeon, examined the plaintiff on three occasions, 16 August 2006, 17 November 2007 and 10 February 2009. He was the only specialist surgeon to give evidence with respect to the plaintiff’s injuries. On the first occasion that he examined her, nine months after the accident, she told him that for the month following discharge from the hospital she had severe head and left groin pain in addition to persistent back pain. She complained at that time of pain in the medial aspect of the left groin and constant low back pain, fluctuating in severity. Mr O’Brien diagnosed a lumbosacral injury, in addition to a fracture on the left side of the pelvis. He was then unable to be precise concerning prognosis and was guarded concerning the plaintiff’s long term prognosis.
80
When Mr O’Brien examined the plaintiff again on 12 November 2007 she continued to experience low back pain, radiating to both buttocks, and persistent left groin pain, associated with shooting pains extending to the upper aspect of her thigh. An x-ray of the thoracolumbar spine on 30 April 2007 showed marked narrowing of the L5/S1 disc with mild narrowing at L4/5 associated with degenerative change. Mr O’Brien considered that in the bicycle accident in November 2005 the plaintiff had sustained a fractured pelvis and aggravation of pre-existing lumbar spondylosis, which he defined in his evidence as “degenerative disease of the lumbar spine noted on x-ray”. (t 408). He considered her condition to have stabilised, and that the pain from the lumbar spine pathology and the pelvic fracture could be regarded as chronic and requiring ongoing pain management. As a consequence of her lumbar and pelvic pathology he then regarded her as mildly disabled and permanently restricted in her domestic, social and recreational activities.
81
By 12 November 2007 the plaintiff had also developed pain in her mid to lower thoracic spine, which radiated to her right lower ribs. The 30 April 2007 x-ray demonstrated extensive degenerative disc change in the thoracic spine. In the opinion of Mr O’Brien the pain in the thoracic region was not directly related to the fall in November 2005.
82
When Mr O’Brien examined the plaintiff on the third occasion on 10 February 2009, she stated to him that she continued to experience constant pain in the mid thoracic spine, as well as constant low back pain. The low back pain was reported as less severe than the mid thoracic pain. She also described intermittent bilateral groin pain and some posterior thigh pain. Putting aside the thoracic pain, which Mr O’Brien considered unrelated to the bicycle accident, the low back pain was aggravated by prolonged sitting and standing and it caused the plaintiff to have difficulty standing erect from a sitting position. Physical activities such as cooking, making the bed and putting on make-up aggravated the pain. She was unable to carry out heavier domestic tasks, such as vacuuming. The groin pain was intermittent, but generally present when walking, especially up stairs or on soft sand. The posterior thigh pain was worse on the left than the right, and was aggravated by changing gears on her manual car and walking upstairs.
83
Mr O’Brien attributed this pain to the fracture to the left side of the plaintiff’s pelvis, and to symptomatic lumbar spondylosis mainly localised to the lumbosacral junction, caused by the bicycle accident. He considered the pain to be truly chronic, suggesting a poor prognosis, and a permanent impact on her ability to undertake heavy physical activities, and on her general, domestic, social and recreational activities. He considered the reduction of the plaintiff’s working hours to approximately 27 hours a week to be “very consistent” with the condition he had diagnosed. (t 410)
84
Cross-examination of Mr O’Brien was directed to the issue of whether the plaintiff had complained of low back pain following the accident. He said that she told him that she had back pain on the day of the accident. He did not agree that the Northern Hospital clinical notes for 20 November 2005
suggested that there was no complaint of back pain, as he considered that a reference to pelvic pain covered back pain, particularly sacroiliac pain at the back of the pelvis. He observed that notes in relationship to pain do not give a clear and precise break down of the anatomical site of pain. He considered it possible, but unusual, for a person to have an undisplaced fracture and a
slightly displaced fracture of the pelvis and not suffer damage to the sacroiliac
joint. (t 415)85
The basis for the proposition that the plaintiff had not experienced low back pain until April 2006, five months after the accident, was the clinical notes of the Plaza Clinic, which had no entry referring to low back pain until 20 April 2006. In my opinion it is plainly apparent that the clinical notes are a shaky
foundation for the proposition. The notes are brief and cryptic in style. They
record regular references to pain and to prescription of strong analgesic
medication in December 2005 and January and February 2006. Furthermore,
the entry for 20 April 2006 expressly refers to “Last few months pain in lower
back.”86
In any event, when cross-examined on this matter, Mr O’Brien was “positive” that the plaintiff “has had back pain from day one”. (t 436) He was firmly of the view that in the fall the plaintiff had sustained a substantial injury, with fractures of the pelvic ring and aggravation of lumbar spondylosis, and that while the pain of the pelvic fracture may have initially outweighed the pain of the aggravated lumbar spondylosis, both were present, and could be referred to as pelvic pain or low back pain. While he expected that the fractures would heal with about three months he said:
What one would expect is that if you have a fractured pelvis, you would have constant pain, and that constant pain would be aggravated, particularly by weight bearing. One would expect, as the fracture healed, that the mechanical weight-bearing pain would tend to settle, but it doesn’t mean to say that the general sort of soft tissue damage will not continue to produce some pain, whether it be muscle, tendon, ligament, whatever. I suppose the point that I’m trying to make is that you can’t fracture a bone without damaging every piece of tissue in that area. (t 421)
87 Mr O’Brien was also cross-examined about the plaintiff’s 1987 injury, and the documents in exhibit F relating to that injury. In evidence in chief he said that the documents did not cause him to alter the opinions expressed in his reports, and he maintained that position in cross-examination. In his opinion the documents showed that the plaintiff had degenerative changes to the lumbar spine, which were symptomatic and causing low back pain at that time. In his opinion the insult in 1987 had caused her “back pain, which got better.” (t 427) His evidence was that degenerative disease does not in itself cause symptoms. In his opinion the lumbar spine pain that the plaintiff was experiencing when he examined her was directly related to the fall from the bicycle which fractured her pelvis and damaged her lumbar spine causing ongoing symptomatic lumbar spondylosis. He considered that she had degenerative disease before the accident, but not a damaged spine. (t 431)
88 No specialist medical practitioner other than Mr O’Brien was called. that there is any proper reason why I should do so, and I accept his evidence.
89 The plaintiff’s treating general practitioner, Dr Chauhan, was also firmly of the opinion that the 1987 was not related to the pelvic and low back pain experienced by the plaintiff following the bicycle accident, and that the accident was, as he put it, “totally responsible” (t 361, 400) for her back pain since the accident. He considered the 1987 low back injury to have occurred “a long time back”, and to be an injury from which she had “recovered completely”. (t 365) His evidence was that the last consultation for the earlier injury was 4 August 1994. The documents in exhibit F show further consideration of the injury by specialists in November 1994. There is no other evidence of low back pain after that until eleven years later following the bicycle accident in November 2005.
90 Although following the bicycle accident the plaintiff was treated by another doctor at the clinic Dr Beeby, and Dr Chauhan did not become the treating doctor until April 2007, approximately 16 months later, the plaintiff was an employee of the clinic and Dr Chauhan recalled her coming back to the clinic using a walking frame and having a lot of pain in the pelvis area and pain in the low back and that she could hardly walk. He recalled her progressing from the walking frame to crutches and then to a single crutch. (t 353)
95 Dr Beeby 91 Dr Chauhan gave a comprehensive account of the anatomical basis of the plaintiff’s continuing pain and disability. In his opinion the pelvic fractures of the superior and inferior ramus caused a tilt of the pelvis at the fracture site, an injury to the sacroiliac joint involving a shift or disturbance in the alignment of the joint, inflammation spreading to the lower back and facet joints, muscle spasm and pain. (t 354, 374) In his opinion pelvic fractures never really go back to their normal anatomical position and that there would continue to be some amount of disturbance or distortion of the sacroiliac joint. (t 362)
92 Dr Chauhan has treated the plaintiff with strong analgesic medication, anti- inflammatory medication and manipulation. He has referred her to an osteopath for manipulation. He has also referred her to a specialist for facet joint injection under CAT scan control, which, he said, had helped the plaintiff. He has prescribed Endep, a tranquiliser and anti-depressant, as the plaintiff had difficulty sleeping, increased the dosage, and also prescribed another anti-depressant Lexapro. As he said, longstanding pain or longstanding discomfort produces depression. He also attributed her depression, in part, to premenopausal changes. (t 362-3)
93 Dr Chauhan’s prognosis was that the plaintiff’s pain would continue. He considered that she would not be able to return to perform the hours of work that she previous worked, and might have to reduce her hours if the pain got worse in the future. (t 361)
94 As with Mr O’Brien, I consider that there is no valid reason why I should not accept the evidence of Dr Chauhan.
It is apparent that treated the plaintiff following the accident and no open to draw the inference that he would not be able to give evidence to assist the plaintiff’s case, having regard to the strong evidence of Mr O’Brien and Dr Chauhan, and the complete absence of any other medical evidence challenging their evidence, I do not draw that inference.
that such matters damaged the plaintiff’s credit in terms of her truthfulness as
a witness, or her reliability generally. It should be forgotten that while the
trial process involved a close consideration, second by second, of an event at a
location, now carefully measured and analysed, the plaintiff was giving her
account of a split second situation that resulted in a traumatic accident and
which caused serious injury to her.99 96 Dr Kaplan, the psychiatrist, assessed the plaintiff on 17 June 2009. He diagnosed her as having developed an adjustment disorder with depressed mood, directly related to her physical injuries and the impact these injuries have had on her life. She had been an energetic, gregarious and productive woman, in a satisfying relationship and engaged in a range of leisure activities. Her physical disability, and the limitations imposed on her by her pain and inability to lead an active life, had caused her frustration, irritability, loss of self esteem, insomnia, loss of libido, social withdrawal and depression.
97 Dr Kaplan’s prognosis was that it is likely that the plaintiff would remain prone to depression and anxiety as long as the pain persists and she is unable to resume an active lifestyle. He considered that she would be assisted by supportive psychotherapy. He recommended weekly consultations for 3 months, followed by fortnightly consultations for a further 6 months, and then consultations every 3 or 4 weeks for several years. (t 338)
98 Mr Middleton attacked the plaintiff’s credit. He did so on several bases. He submitted that some aspects of her account of the accident could not be relied upon. While there may be some basis to that submission, I do not consider
An aspect of the trial that occupied a little time was scrutiny of an injury to concerning her credibility, as the evidence of Dr Chauhan established that she had no further treatment for this injury after 1994, some eleven years before the bicycle accident, and as the evidence of Mr O’Brien and of Dr Chauhan was that the low back pain she experiences is caused by the bicycle accident injury to the pelvic area, and was not related to the earlier 1987 injury, I do not consider that the plaintiff’s credibility was damaged by the cross-examination with respect to the 1987 injury.
100 Surveillance film was taken of the plaintiff. It was not shown to her or adduced in evidence. Some aspects of what it was said to have shown in January 2008 were put to the plaintiff. It did not contradict her evidence or damage her credit. (t 159-161)
101 My impression of the plaintiff as a witness was that she gave her evidence in a straightforward manner and did her best to truthfully answer questions asked of her. I accept her evidence as to how the accident occurred and concerning
103
sustained fractures to her pelvis and aggravation of spondylosis to her lumbar
spine. These injuries have caused her substantial and significant pain in her
pelvic region and her low back. She has been treated conservatively with rest
initially, with strong and consistent analgesic medication and with
manipulation. There is no evidence that surgery would relieve her symptoms.
In recent times she has had facet joint injections in the lower back to relieve
pain in the low back. She has continued to have constant low back pain,
which is exacerbated by activity. While it is to be hoped that it will improve
the medical evidence is that it is now a chronic condition and is likely to
persist. It has had a very big impact on the plaintiff’s life. Before the accident
she was an active, gregarious women, enjoying her work and committed to it,
and in a satisfying relationship, a feature of which was participation together
in leisure activities such as walking,tennis, cycling and dancing. Her injuries
prevent or limit her participation in these activities. Her intimate life has been
I am satisfied that in the bicycle accident on 20 November 2005 the plaintiff has been significantly diminished. She has become more reserved and socially withdrawn and, not surprisingly, experienced depression which has required treatment.
her injuries and the impact they have had on her.
102 General damages is an amount of money considered to be fair and reasonable enjoyment of life. It is a matter of judgment and requires an evaluation of the injury the plaintiff has suffered, the effect of it on her, and on her enjoyment of life, and of the pain that she experiences, has experienced and will experience. The judgment must be fair to both parties, and not be unduly extravagant at the expense of the defendant, or unduly niggardly at the expense of the plaintiff. It is not a matter of punishment of the defendant. Rather it requires a calm and sensible assessment of what is fair and reasonable to compensate the plaintiff.
104 Having evaluated the evidence, I consider a fair and reasonable sum to compensate the plaintiff for her pain and suffering and loss and enjoyment of life to be $110,000.
105 With respect to special damages the amount of the plaintiff’s past medical expenses are agreed at $7,060.15, being $3,269.95 due to Medicare, and $3,790.20 for other medical expenses, but the defendant argues that only 50% of the $3,790.20 is due to the pelvic injury. However, as I have accepted that the plaintiff’s low back pain is caused by the accident, I consider it fair and reasonable to allow this amount.
106 The plaintiff has claimed the sum of $14,154.34 for medication in the future. Again, the defendant, while accepting the arithmetic calculation, argues that only 50% is attributable to the pelvic injury. While I have not accepted the
defendant’s position with respect to the plaintiff’s injuries, I do consider it to
be difficult to assess now the likely cost of the plaintiff’s future medication,
and I am assisted by Mr Middleton’s submission that with respect to
pharmaceutical expenses a broad brush approach would not be unreasonable.
(t 544) The plaintiff has continued to take substantial amounts of prescribed
analgesic medication as well as over the counter medication and anti-
depressant medication. Doing the best I can, bearing in mind that the
payment is made in advance, and using a broad brush, I consider the sum of
$10,000 a fair and reasonable sum for future pharmaceutical expenses.
110 past economic loss
earnings for the period from 20 November 2005 to 23 January 2006 was
$4,966.59. While agreeing that the plaintiff’s income tax returns demonstrate a
107 I take a similar approach to the claim of $4,004 for future osteopath expenses and allow the sum of $3,000.
108 I do not accept the claim for $8,444.80 future psychiatric treatment. The plaintiff’s evidence was that she and Mr Russell have attended Dr Levy 4 or 5 times for counselling with respect to their relationship. Prior to that her anti- depressant medication was prescribed by her general practitioner. Although Dr Kaplan recommended ongoing psychotherapy, the plaintiff did not give evidence that she intended to have ongoing attendances on the psychiatrist for any lengthy period, and I do not consider it to be likely that she would have many such attendances. In any event, her evidence was that Dr Levy bulk billed, which I understand means that she did not incur a cost for her attendances on him.
109 I assess the plaintiff’s medical and like expenses, past and future, to be
$20,060.
With respect to the parties agree that the plaintiff’s loss of defendant argues that there is not evidence that the plaintiff could not have worked the hours lost in that period. I do not agree with that submission. The evidence of the plaintiff was that she was absent from work for some 3 months, and returned to work on limited hours because of her pain and disability. In my view the evidence supports the claim for this amount.
future she will have to reduce her hours of work or cease work altogether.
111 Similarly, the defendant agrees that the records show a loss of $3,607 for the period from 1 July 2008 to 30 June 2009, and a loss of $560 from 1 July 2009 to 26 August 2009, but not that the loss was due to the plaintiff’s injuries. In my opinion the evidence of the plaintiff’s reduction of her working hours due to pain and disability in her low back supports the claim for these amounts.
112 I assess the plaintiff’s past loss of earnings tobe $15,940.
113 The plaintiff claims the sum of $70,322 for future economic loss, being a loss of for a person aged 52 until the age of 65. As indicated, I accept that the plaintiff has a reduced earning capacity caused by her injuries and measured by her present reduction in earnings agreed at $140 per week. She is an independent woman and likely to work until aged 65. I therefore accept the sum claimed. A reduction of 15% should be allowed for the vicissitudes of life, which would reduce the amount allowed to $59,774.
114 The amount of $1,434.58 is agreed as past superannuation loss, and $5,023 as future superannuation loss. Allowing a 15% reduction for future loss, it would be $4,270, giving a total loss of superannuation of $5,705.
115 The plaintiff has claimed the sum of $35,000 based on the decision in Victorian Stevedoring Pty Ltd v Farlow (1963) VR 594, on the basis that she is struggling to continue with her work as a medical receptionist because of the physical and
psychological symptoms caused by her injury, and it is likely that in the relationship with her employer. She has continued working with the same employer, the Plaza Clinic, since the accident, and reduced her hours by agreement to 27 and a half hours per week this year. On the basis of her evidence, she enjoys her work and it is important to her. An amount has been allowed for her loss of earning capacity on the basis of her reduced working hours. I am not satisfied on the balance of probabilities that it will be necessary for her to further reduce her working hours. I do not consider it to be fair and reasonable to allow a further amount for a risk of less remunerative employment or unemployment in the future.
116 I assess the plaintiff’s damages at $211,479 , being
General damages $110,000 Medical and like expenses $20,060 Past loss of earnings $15,940 Loss of earning capacity $59,774 Loss of superannuation $5,705 _______ $211,479
117 I turn now to the question of contributory negligence. The defendant argues that the plaintiff’s injury was caused by her own contributory negligence. The defendant bears the onus to prove contributory negligence on the balance of
probabilities. Making a judgment as to whether the plaintiff failed to take
reasonable care for her own safety is not an easy matter to determine. It has
to be considered having regard to the conditions and circumstances
confronting the plaintiff. It is apparent, in my opinion, that the plaintiff made
a misjudgement, but it has to be considered whether, in the circumstances and
conditions in which she was placed, her conduct amounted to mere
inadvertence, inattention or misjudgement, or amounted to negligence on her
part. The task of considering contributory negligence involves consideration
of an apportionment as between the plaintiff and defendant of their respective
shares in the responsibility for the accident. It involves a comparison both of
culpability, ie of the degree of departure from the standard of care of the
reasonable person, and of the relative importance of the acts of the parties in
causing the damage. It is the whole conduct of each party in relation to the
circumstances of the accident which must be subjected to comparative
examination (see Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
at 531-533 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ)118 The plaintiff was not an experienced bike rider. She was a weekend rider. She had little or no previous experience of dealing with emergencies while riding. She had not previously ridden on this path, so she had no previous knowledge of the difficulties or hazards that were associated with the path. When she came down the ramp she knew that she was descending and
needed to apply her brakes. The red barrier was visible to her at the bottom of the ramp. It was a hazard for her as it obstructed her path to some extent. She continued to apply her brakes so that as she approached the bottom of the
ramp she was travelling slowly. I do not consider it to have been a failure on her part not to have seen the eastbound cyclists before they came around the bend, as her view of them would have been partially obscured, and the
gradient of the ramp, the need to brake and the presence of the barrier,
required her attention.119 However, I have been troubled since hearing the plaintiff’s account of how the accident occurred, as to why she did not apply her brakes more firmly, maintain her course and come to a stop. I do not accept her explanation when I asked her about that matter, that she was concerned that cyclists behind her would have run into her. She had not previously given any evidence that cyclists behind her were of concern to her. Mr Caron’s evidence was that he was 40 m behind her, and there was no evidence of anyone between them. I appreciate that the plaintiff was confronted by a difficult situation which was not of her making and which required from her a spur of the moment decision. She decided not to brake to a stationary position, but to swerve to the gap between the cyclists and her right hand side of the path. In my opinion that was a negligent misjudgement.
120 I would apportion her responsibility for the accident to be 25%. Having regard to the plaintiff’s share in the responsibility for the damage, it would be just and equitable to reduce her damages by 25% to $158,610.
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