Maureen Patricia Robinson v Australian Capital Territory - [2008] ACTSC 80

MAUREEN PATRICIA ROBINSON v AUSTRALIAN CAPITAL TERRITORY
[2008] ACTSC 80 (5 September 2008)

NEGLIGENCE – personal injury – teacher struck by door on school bus – bus driver closing door while teacher in its path – no issue of principle

DAMAGES – personal injury – blow to hip – trochanteric bursitis – tears to gluteal tendons – no issue of principle

Limitation Act 1985
Supreme Court Rules (repealed), O 23, r 17
Court Procedures Rules 2006, r 443(5)

ASIC v Rich [2004] NSWSC 1062
Fox v Wood (1981) 148 CLR 438

No. SC 48 of 2003

Judge: Master Harper
Supreme Court of the ACT

Date: 5 September 2008

IN THE SUPREME COURT OF THE       )
  )          No. SC 48 of 2003
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:MAUREEN PATRICIA ROBINSON
Plaintiff

AND:AUSTRALIAN CAPITAL TERRITORY
Defendant

ORDER

Judge:  Master Harper
Date:  5 September 2008
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff for $614,690.64.

This is an action for damages for personal injury. The plaintiff, then a schoolteacher, makes her claim in respect of an injury on 10 February 2000 in McMillan Crescent, Griffith.

The pleadings

As pleaded, the claim is that at about 3.45 pm on that date the plaintiff was standing on the steps of an ACTION bus operated by the defendant; the bus was parked at St Clare’s College, Griffith, to pick up schoolchildren; and the doors of the bus suddenly closed and struck the plaintiff causing injury. Particulars of negligence were provided as follows:
·failing to keep any or any proper lookout.
·failing to warn the plaintiff that the doors were about to be closed.
·closing the doors without ensuring that the steps were clear.
In compliance with the rules in force at the time, the plaintiff’s claim was made by way of a statement to accompany an originating application applicable to a motor vehicle personal injury claim (then form 4). Hence the claim was not pleaded in the traditional manner. There is no specific pleading that the negligence alleged was that of the bus driver, or that the defendant is vicariously liable for that negligence. Nevertheless this is the way the case was conducted at trial, and I propose to decide the case on that basis.
Proceedings were instituted in January 2003. By that date the plaintiff’s treatment was continuing. She had made a claim for workers’ compensation, and the workers’ compensation insurer had arranged through rehabilitation consultants for a graduated return to work. There was an expectation that the Limitation Act 1985 would be amended to reduce the limitation period from six years to three years, and the plaintiff’s solicitors, no doubt conscious of this, commenced proceedings within three years. The plaintiff’s injuries had not stabilised and I do not draw any inference adverse to her from the fact that proceedings were not instituted earlier: nor did counsel for the defendant suggest that I should do so.
In June 2003 the ACT Government Solicitor delivered a defence, not admitting the factual assertions in the statement of claim, denying the particularised negligence, and asserting contributory negligence which included:
·Failing to indicate to the driver that it was unsafe for him to close the bus doors.
·Standing in the bus at a point where she was not visible to the driver knowing that the doors were likely to close shortly thereafter.
·Failing to have devised a system whereby the plaintiff could communicate to the driver whether it was safe from him to close the doors and move off.
The defence did not deny the time or date of the incident or the assertion that the plaintiff was standing on the steps of an ACTION bus parked at the school to pick up schoolchildren, nor did it deny that the doors of the bus suddenly closed and struck the plaintiff, although these assertions were not admitted.
Order 23 rule 17 of the Supreme Court Rules then in force provided that it was not sufficient for a defence to deny generally the grounds alleged by a statement of claim, and that the defendant must deal specifically with each allegation of fact which was not admitted. The Court Procedures Rules 2006 go a little further. Rule 443(5) requires a defendant who wishes to prove a version of facts different from that alleged in the statement of claim to plead that version in the defence.
In July 2006 the action was certified by the solicitors for both parties as ready for trial on the pleadings as they stood at that time. The length of the hearing was estimated by the solicitors on both sides as two days. The action became before the then Deputy Registrar in September 2006 and was listed for hearing on 12 February 2007.
The hearing commenced before me on that date. The estimate proved to be highly optimistic. By the end of the third day only three of the eleven witnesses who were ultimately called had given their evidence. A treating medical specialist was unavailable the next day, and the further hearing was adjourned to a date convenient to the Court and to counsel, to be fixed.
The hearing resumed on Monday 30 July 2007, and occupied a further four days. During the period of the adjournment, the solicitors for the defendant had carried out further enquiries. Counsel for the defendant wished to put to the plaintiff the proposition that she had not been injured on an ACTION bus at all, but on a bus operated by Deane’s Buslines of Queanbeyan, NSW. The plaintiff was recalled and further cross-examined about this, and on 31 July I gave leave to the defendant to deliver an amended defence which reflected the defendant’s case as presented to the Court. The amended defence added four paragraphs which may be summarised as a denial that the plaintiff was standing on a bus owned or operated by the defendant when, as alleged, she was struck on the left hip by the bus door; if the plaintiff was standing on a bus operated by the defendant when struck, an assertion that that incident did not cause the plaintiff’s injuries; an assertion that if the plaintiff was injured as alleged, she was injured while standing on a bus operated by Deane’s Buslines Pty Limited; and an assertion that the plaintiff’s injuries were occasioned by a later incident on 22 February 2000 when she was jostled by a group of schoolchildren and caused to fall off a footpath into a gutter striking her left hip against a bus and at the same time taking the weight of her body suddenly on the left leg.
The occurrence of such an incident on 22 February 2000 emerged from a diary which the plaintiff produced to the court, having mentioned its existence during cross-examination. There had been no formal discovery before trial, and I do not criticise the plaintiff because the existence of the diary was not previously known to those representing the defendant.

The plaintiff

The plaintiff was born in December 1940. She was 59 in February 2000, and is now 67. In her early 20s she gained a science degree and a diploma in education, and worked thereafter as a schoolteacher. She married in 1963 and has four adult children. After teaching at various schools in Australia and overseas, she commenced employment as a science teacher at St Clare’s College at Griffith.
One of her duties was to supervise pupils of St Clare’s and also of St Edmund’s College, which was on the other side of McMillan Crescent, as they boarded buses to go home after school. This duty was shared among members of the teaching staff. The plaintiff was rostered for afternoon bus duty once every eight school days. School ended at 3.20 pm. Bus duty lasted from that time until the last bus left, usually at about 3.50 pm. The plaintiff estimated that on a typical afternoon, twenty or thirty buses would arrive, taking as many as two thousand pupils home from the two schools. The buses all came in from the same direction, entering McMillan Crescent from Canberra Avenue to travel south, so that pupils were picked up on the eastern side of the street. They would form up at bus stopping positions designated by signs indicating the bus route number for the various services. I had the benefit of a view of the area with counsel. I accept that the general layout of the area at that time remained much as it was in February 2000, although it seems likely that there has been some change to the signage, not of any significance for the purposes of the case.

The evidence for the plaintiff about the incident

The plaintiff’s evidence on the first day of the hearing was that on the afternoon of 10 February 2000 she was on bus duty. Nothing unusual had happened until she was supervising the embarkation of the second-last bus for the day. She said that she got onto the bottom step of the bus, and was organising students into lines, ready to let them on to the bus, using her arms and her voice. She was at the front entrance to the bus, she thought within a metre of the driver and standing just down from him with her back to him. She remembered saying “primary boys forward on” and moving her left foot to go to the left to make room for the boys to get on. As she did so, the “bus door just simply thwacked me”. She was struck on the left hip. She felt instant shock and pain. She stood her ground so that her body absorbed the shock. She thought that the bus door must have opened again but could not remember. She did not think that any of the pupils had got onto the bus before she was struck. She had adopted the same technique on many previous occasions. She had never been struck by a bus door before and had never heard of it happening to anyone else. She was asked what she did immediately after the incident. She said that she continued to step to the left to let the boys on, and stood there until the bus was loaded. She half turned to the bus driver and said something to him but could not remember the words she used. The bus driver did not reply. She thought that the process of embarking the pupils took two or three minutes. She then got off the bus and moved to the next group of children who were waiting for the last bus.
She had no specific recollection which would identify the bus on which she was injured. She could not remember whether it was articulated or not, but she said that it was an ACTION bus. She explained that a few Queanbeyan buses came to the school, but that most of the buses were ACTION buses. She did not recall anything in particular about the driver. Her recollection was that the station where this happened was “about the middle of the section”. She did not note any route numbers or the station number.
There was a minor problem with the last bus. It pulled up some little distance from where it was supposed to, and where the pupils were waiting in a queue. These were new boys in Year 7, and the effect was that a number of older boys got on first before the plaintiff got there to supervise the younger pupils getting onto the bus. The plaintiff saw an ACTION supervisor nearby. She went and spoke to him and complained about the driver of the bus stopping in the wrong place. Her evidence was that she also said to him “and I’m in pain because I’ve been hit by a bus door”. She was in pain, and her voice was on edge because she was nearly in tears. She did not recall that the supervisor made any response. She went back into the front office of the school and spoke to the school secretary. She wrote a report of the accident in the school accident report book. She went looking for the principal or assistant principal to report the incident verbally, but they were unavailable. She went to the staff room and made herself a cup of tea. She was feeling “pretty dreadful”. She sat down and had a good cry. She felt that she was in shock. She had pain in the left hip.
The plaintiff’s evidence was supported by an accident report form, with the heading “Catholic Church Insurances Limited”. The report reads: “St Clare’s College Griffith – M Robinson – teacher
10/2/2000 3.45 bus duty – brief details of occurrence: I stood on lower step of bus to get students organised into orderly lines before allowing them to board. The door of the bus was clapped shut on my left hip. Painful”. The entry was signed by the plaintiff and dated 10 February 2000.
The plaintiff was extensively cross-examined about her recollection of the events on the day of the accident. Counsel for the defendant put to her that the bus in question had double opening doors at the front adjacent to the driver. The plaintiff’s answer was “I can’t be sure about that, I’m not used to buses, I don’t take much notice, so I can’t say I definitely observed how many doors it had”. She went on “I hadn’t used them as a passenger and . . . I haven’t been observant enough to notice whether they had one or two folding doors at the front”. Counsel asked whether she was familiar with the way in which the front doors of ACTION buses opened, or the arc through which the doors travelled. The plaintiff said she had never thought about it.
She said that her intention was to remain standing on the bottom step as the children got onto the bus, and to allow them to enter in single file, so that they could pass their tickets through a machine for validation. It was put to her that the staircase into the bus was divided by a central handrail. She said that she remembered that some buses, and perhaps all buses, had had such a handrail, but she did not remember exactly what was there on the bus in question.
Counsel showed the plaintiff photographs of an ACTION bus and asked whether it looked liked the bus involved in the accident. The plaintiff said that she could not be absolutely definite. The bus in the photograph looked liked an ACTION bus but she had never taken much notice of differences between them. She was then shown a photograph of the stairwell of a bus. She was asked whether it looked like a bus of the type she was standing on on the day of her accident. She apologised and said that she could not say definitely either way. She had no idea that she would have to remember such details seven years after the event. She had not been on an ACTION bus more than once or twice over that period.
She was then shown a photograph of the front doors of a bus, showing one door open and the other closed. She said that she had had a feeling that the bus on which she was injured had had a concertina type door rather than the sort of door shown in the photograph, but she said that perhaps she was wrong and that she did not recall the exact details. She knew that the entrance to the ACTION buses was different to the entrance to the Queanbeyan buses but had not specifically thought about the position of handrails. Her recollection was that the Queanbeyan buses had a narrower entrance. She had stood on the bottom step of Queanbeyan buses from time to time. It was put to her that the Queanbeyan buses had concertina doors. She could not remember whether this was so or not. It was then put to her that her best recollection was that she had been hit by a concertina door. She said “that is my best recollection but it may not be accurate. I didn’t take a lot of notice, didn’t think I needed to”.
Counsel then asked her whether, prior to the first day of the hearing, she had ever told anyone of the conversation she had had with the ACTION supervisor. First she said that she did not recall and did not think that anyone had ever asked her about it. It was then put to her that she had been asked earlier that day and had recollected the conversation in some detail, seven years after the event. She responded by volunteering that she had written about it afterwards in her diary. It was at this point that counsel for the defendant called for production of the diary. Counsel asked the plaintiff when was the last time she had read the diary notes to refresh her memory, and she said that she had looked at the notes the previous day.
Counsel asked the plaintiff whether she thought it was possible that she had been standing on the bottom step of a different style of bus altogether to the ACTION bus shown in the photograph. She said that it could have been. She just could not remember the exact structure of the door. It had never previously occurred to her as being relevant or important.
On the next morning, the plaintiff produced a document which she explained that she had printed out from her computer. The diary she had spoken of the day before had been one typed on a computer rather than handwritten. It is not strictly a diary: there is not necessarily an entry for every day. There are periods between the dated entries sometimes as long as ten days. The plaintiff explained in her evidence that the diary was a private one, never intended to be seen by anyone else and certainly not prepared in contemplation that it might become evidence in court proceedings. Sometimes she would return to an entry and add to it or change it. Generally speaking, this did not occur after she had started a fresh entry.
The entry bearing the date of the accident reads as follows:

Thursday 10 February 2000

My first “lower bus duty” for the year. Not the same bus duty as I had in previous years. I was not familiar with the specific bus numbers and expected times of arrival, but the duty was the same.
It was a hot afternoon, and dusty. The students were tired of waiting by 3.45. There were a large number crowding, milling, to get onto the second last bus when it arrived. In order to get them into lines before they boarded the bus, I stood on the bottom step of the bus, with my back to the driver, and facing the pushing mass of students. This was the usual way of getting a head above the crowd and commanding their attention. In a loud voice, I insisted they form two lines, and when that was achieved, I directed the Primary boys to begin boarding.
At that moment, the bus door on my left suddenly and without any warning snapped shut. I was standing about the centre of the step and was moving to my left to allow the boys on when I was thwacked by the door.
When the last bus arrived soon after, I was upset that the junior girls who had been waiting patiently in line, were the last to get onto the bus because the bus stopped further up the hill and the driver allowed a mob to just push on before I could get there to get some order, leaving the “line” and the teacher waiting at the bus stop. These girls were new Year Seven students and then had to stand all the way home. There was an ACTION officer present, and I had words with him about this. I was very upset because I was in pain and I told him that I had been hit by the bus door as well as being angry at the unfairness.
At 3.55, I went into the school to report these two things. The executive were in a meeting. I wrote of my accident in the accident book handed to me by Mrs Harris in the front office. She could see I was in pain and that something had happened when I came in. I took the book to fill in, made a cup of coffee and had a good cry in my staffroom. I went back to the Principal’s office several times but the meeting had not finished. I had calmed down enough to drive home by 5.40 pm.

There was then a short entry dated the next day, which I will also quote:
Friday 11 February
Arrived at school about 8 am as usual and went straight to Student AP to report the events of Thursday’s bus duty. She had not arrived at school. I went around to her office three more times in the next half hour, but was not able to see her. I verbally reported the two incidents to her after the morning staff meeting, before we left the Common room. Another teacher was sitting at the table at the time and joined in the conversation. Mrs Darley said she would contact ACTION about it. I heard no more. I kept coming to school, sore and aching, expecting the “bruises” to just go away in time.
There was no further entry for ten days. The next entry reads:
Monday 21 February
Asked AP Staff about my legal position with regard to the accident, as it happened outside the school boundary and outside official school time. She said she knew nothing of the accident, but assured me as I was officially on duty at the time I would be fully covered. I was concerned that my “bruises” were not feeling any better, I was finding teaching very difficult in this state, and my left leg was uncomfortable, especially trying to sleep at night. I told her I was going to a doctor about it.

Next came the entry for the following day, upon which counsel for the defendant cross-examined the plaintiff at some length:
Tuesday 22 February
Saw Dr Stott at Kingston Medical Centre. He thought I had traumatic bursitis of the hip as well as bruising and thought it would remain sore for some time – at least 8 to 10 weeks. He sent me to a physiotherapist. I reported his diagnosis to the AP Staff. I also went to the AP Students to see what response she had had from ACTION before I went out to do my bus duty again that afternoon. I dreaded going out into that crush of students with my left side so sore and tender. I explained the diagnosis to her also, and said I dreaded doing that duty again while so sore. She advised me not to stand on the bottom step of a bus. I went out to bus duty. I did not stand on the bottom step of the bus to get the students in order. The last bus was the worst. The students did line up, but some of the boys at the back decided to do some shoving once the lines started moving. This caused the students at the front to be pushed forward en masse knocking me into the gutter and against the bus – a very painful experience I did not need. The teacher bringing the crossing flags in from Lower Crossing duty witnessed this incident and helped by moving the students back again.
This was followed by an entry for 23 February, recording the plaintiff had reported the incident of the previous day to the Principal. The next few entries were for 24 February (first visit to physiotherapist), 28 February (consultation with Dr Stott) and 6 March (further consultation with Dr Stott). The entries continued, but none of the later ones seem to me, or were submitted by counsel, to be of any relevance to the question of liability in this action.
Counsel for the defendant, as I have said, cross-examined the plaintiff at some length about the incident on 22 February. He sought to make something of the fact that the plaintiff had not told any of the treating or other doctors about the incident. The plaintiff thought that she probably told Dr Stott at the time, though she had no specific recollection about it. She said that it was a minor incident. Counsel put to the plaintiff that on 22 February, having been pushed into the gutter and against the bus, she had been forced to take her body weight on her left leg to avoid falling over. The plaintiff agreed with this. It was also put to her that the degree to which her body weight was thrown onto the left leg was significantly greater than in the earlier incident. She agreed with this, saying that in the earlier incident she had not been thrown onto her left leg at all. Counsel for the defendant ultimately submitted that I should find that it was more probable that the plaintiff had injured her hip seriously in that incident rather than in the incident of 10 February 2000. I shall return to this after summarising the medical evidence.
During the second day of the hearing, and before the completion of the plaintiff’s cross-examination, I had a view of an ACTION bus at a depot at Belconnen. The view was attended by the plaintiff, and by counsel and solicitors for both parties. The view included a demonstration by a bus driver of the working of the front doors. The plaintiff’s cross-examination resumed after the view. She was asked whether the view aided her in recollecting whether the bus on which she was injured was of the same kind. Her answer was that it did not seem to be the same, and that it did not stir any memories of the day. It did not fit with her recollection. She did not “remember it looking or feeling like that at all”. She was asked whether she had a memory that the bus on which she was injured was different to the bus she had just seen. She said “ . . . my memory seemed to be with folding doors, not like that, but you know, that might have developed over time. I can’t really say that at – because I took so little notice at the time and I didn’t investigate it afterwards, not thinking it important . . . ”.
The plaintiff said that she had no memory of a handrail on the day of the accident. She acknowledged that it would have been difficult to stand in the middle of the bottom step if there had been a centre handrail, and that was what she could not understand when she saw the bus on the view. Counsel reminded her that in her evidence before the view, she had said that she had a memory of being hit by a concertina door. She agreed that she had said that, but said that she had not taken any notice at the time, and felt that when she “tried to explain it in my head later and write it down” she thought that it must have been a concertina door. She now accepted that it may not have been. Counsel cross-examined the plaintiff about the difficulty if not impossibility of standing in the centre of the doorway on the bottom step, having regard to the position of the handrail, if it were accepted that the accident had happened on a bus of the same configuration as the one seen on the view. The plaintiff said that she was mystified by the bus on the view, which did not seem to fit with her memory at all. She had continued doubts about the handrail.
Counsel for the defendant at this point concluded his cross-examination, but in the course of an objection to a question in re-examination, he conceded that he would ultimately be submitting that the accident had happened on a Deane’s Queanbeyan bus and not on an ACTION bus. I informed counsel that I took the view that it would be unfair not to put that to the plaintiff in cross-examination, and I gave leave to counsel to ask further questions in cross-examination. The plaintiff said that she was quite clear that the bus was an ACTION bus. She made two points about this. The first was that the Queanbeyan buses did not stop in the bay where she was injured, but in a lower bay on the other side of a pedestrian crossing. The second point was that if it had been a Queanbeyan bus, she would not have mentioned the incident to the ACTION supervisor a little later in the afternoon.
The plaintiff was re-examined about the incident of 22 February 2000. She said that the impact between her hip and the side of the bus was painful at the moment it occurred, but did not seem to change or modify her symptoms. I asked her whether she went back into the school to record anything about the incident in the accident report book. She said that she did not write it in the book because it did not seem as momentous as the previous incident.
Later on the same day, counsel for the defendant arranged for the ACTION bus which had been inspected and tendered five months earlier to be brought to the court, and made the same arrangement in relation to a Deane’s bus. In the plaintiff’s presence, the defendant’s solicitor, Mr Holmes, stood on the front bottom step of both buses while in each case the driver activated the door-closing mechanism. This was recorded by a video camera and the digital video disc was tendered.
The plaintiff gave further evidence after this. She said that she recognised the colour scheme of the Deane’s bus. She was not sure whether it was exactly the same as the colour scheme of Deane’s buses in February 2000, but it was vastly different from the ACTION colour scheme. She said that the Deane’s bus she had just seen could not have been the bus on which the accident happened. The Deane’s bus had a single passageway at the front door, with nowhere for her to step to the side to let pupils on. She said that on occasions in the years leading up to the accident she had carried out bus duty on Deane’s buses. The Deane’s buses always had a narrow one-track doorway. Her duty was usually in the area where the ACTION buses stopped, and she had very rarely carried out duty on a Deane’s bus. She recalled that when she was supervising entry onto a Deane’s bus, she stood on the bottom step until the children were quiet and orderly, and then stepped off the bus to allow the children to board.
She agreed that the Deane’s bus door she had just seen was a single folding door hinged at the right as one faced the bus from the footpath. She agreed that this was what she understood by the expression “concertina door”. She also agreed that there was no centre handrail on the stairway of the Deane’s bus. Asked about her earlier evidence that she thought that she had been struck by a concertina-style door, she said that she had imagined that the door which struck her was somehow folded, but at the time of the incident she did not take any notice of the door. She would have had to get off the Deane’s bus to let children on, whereas she did not have to get off the bottom step of ACTION buses to allow students to pass.
Counsel for the defendant put to the plaintiff that there had been occasions when a Deane’s bus had stopped in the lower bay generally used by ACTION buses, rather than the upper bay where they generally stopped. The plaintiff said that in her time at the school she was never aware of a Deane’s bus stopping in the wrong bay. She said that this might have happened when she was not on duty, but she had never observed it.
In the course of the view of the two buses, the width of the doorway of the Deane’s bus was measured at 67.5cm. The width of the ACTION doorway was measured at 48.5cm from the left (facing the bus from the footpath) to the centre rail, and 56cm from the centre rail to the right. The centre rail was fixed to the floor 12cm in from the outer edge of the bottom step.
Ms Sandra Darley gave evidence that she was, by the time of the hearing, Acting Principal of St Clare’s College. She had been Assistant Principal since she started at the school at the end of January 2000, about two weeks before the plaintiff’s accident. There were three assistant principals at the school. I take it that Ms Darley was the occupant of the position described in the plaintiff’s diary as AP Students. She was generally responsible for the supervision of students coming to school and going home, including getting onto the school buses. She said that at the beginning of 2000, there were only two bus operators who collected students at the end of the school day.
About 80% of the buses were ACTION buses and about 20% were Deane’s buses. The system had remained the same over the intervening period. Bus spaces were designated for the particular bus operators. There were bus bay signs on poles in McMillan Crescent. There were two bus bays which were generally referred to as the upper and lower bays, there being a slight slope in McMillan Crescent downhill for the afternoon buses. There were a number of stops or stations within the two bays. The upper bay had room for about three buses and the lower bay for two buses. Ms Darley said that the Deane’s buses were allocated spaces in the upper bay. She had never seen a Deane’s bus pick up from the lower bay. She explained that with some two thousand five hundred children leaving the two schools every afternoon, it was necessary that everyone knew where they were to be in order to catch the right bus home and that this was particularly important with the very young children. She said that the Deane’s buses were used by children who lived at Queanbeyan, including Jerrabomberra, although this was not regarded as one of the schools’ feeder areas. The majority of the girls at St Clare’s lived in the Tuggeranong region.

The evidence for the defendant on liability

Mr DM Wilson, an ACT Public Servant, was an accident and security officer with ACTION buses for about two years between 2005 and 2007. He had searched the records of ACTION buses and found no internal record of any incident causing injury to the plaintiff on 10 February 2000. A complaint of an incident on that date had been lodged with ACTION by the end of that month.
The records he checked were kept on computer and also in hard copy, being original handwritten records. He had also searched to see whether there had been an ACTION bus inspector on duty at St Clare’s College on that date. He had been unable to confirm this. He explained that supervisors were generally based at bus interchanges. An inspector might sometimes have been on duty at St Clare’s College on a school afternoon, but this would not always have been the case.
Mr Wilson estimated that there would have been about four hundred and fifty ACTION buses in service in February 2000, the vast majority being Mack Renault buses.
Mr Glenn Dougall is the fleet technical manager of ACTION buses. He has been in that position since 2004, and with ACTION buses as a technical officer since 1983. His responsibilities include fleet procurement, that is the purchase of buses, and also technical oversight of the operation of ACTION buses, including design, modification and compliance. His evidence was that in 2000 ACTION had a number of different makes and models of buses in its fleet. These included the Renault Mack rigid bus and the Renault Mack articulated bus. These were of the same configuration at the front end of the bus, including the driver’s compartment and the front steps and doors. He said that in 2000, the larger articulated buses were generally used for school runs, supplemented by rigid buses. There were also some Renault Mack buses with a different body shape and different door mechanisms.
Mr Dougall explained that in 2002, the doors of ACTION buses were modified by installing a door safety mechanism, the effect of which was that a door would reopen automatically if it came into contact with an obstruction. Prior to 2002 this facility was not a feature of ACTION buses.
He said that in 2000, all of the Mack Renault PR 102 (rigid) and PR 180.2 (articulated) buses had a central handrail on their front steps, as seen on the view of the bus the previous day. The colour scheme for ACTION buses at that time was predominantly orange with blue trim and a white roof although some buses had advertising material painted all over them. The door safety mechanism on the bus produced on the view had been disabled so that it operated as a similar door would have operated in 2000.
Mr Dougall explained that the bus driver has controls which permit the opening and closing of both halves of the door together. The controls also permit the driver, when the doors are open, to close only the right half of the door (as one faces the bus from the footpath), leaving the other side open; and also, when both halves of the door are shut, to open the right half only, leaving the other half shut. This control was achieved by the driver pressing buttons in the driving cabin to the left of the steering wheel.
ACTION had previously had Mercedes buses in the fleet, but these had been phased out by about 1995. The service life of a Renault Mack bus was about twenty years. ACTION had a policy by the time of hearing of selling buses when they were about seventeen years old.
Mr Dougall also said that there was another quite different kind of bus in the ACTION fleet in 2000, being a Dennis Dart midi-bus. These were wheelchair-accessible with a low floor a and quite different door mechanism.
There was no evidence as to how many ACTION buses stopped in McMillan Crescent on the afternoon of 10 February 2000. I accept that the overwhelming majority of the buses were ACTION buses, with the Deane’s buses representing quite a small proportion. I take account of the fact that the buses moved two thousand to two thousand five hundred schoolchildren, although I have no evidence as to the number of children on each bus. I can reasonably infer that there were quite a large number of ACTION buses which came and went during the period of half an hour or so after school on the day in question. I must accept, from Mr Dougall’s evidence, that most if not all of these buses were of the Mack Renault 102 rigid and 180.2 articulated models.
The limited inquires made to identify the bus on which the plaintiff was injured can be explained by the fact that a particular bus number and time were given by the school to ACTION buses when the incident was first reported. On 29 February 2000, Ms Rey, Assistant Principal Staffing and Administration at St Clare’s College, wrote to Mr Bink, Vehicle Claims Manager at ACTION in the following terms:
Dear Paul,
I wish to advise that one of our teachers was injured at approximately 3.45 pm on 10 February 2000 on bus 414.
I understand from Mrs Robinson that the accident occurred as she was standing on the lower step of the bus organising the students to board the bus when the door was closed onto her left hip.
Our insurer may be in contact with you in the future.
Yours sincerely
Catherine Rey
The plaintiff’s evidence is clear; she did not get the bus number and could not assist as to where the number came from. She probably did tell Ms Rey that the incident happened at about 3:45 pm on the day. The number caused some confusion, both the plaintiff’s solicitors and Mr Bink initially assuming that it was a registration number. Indeed, the originating process filed in January 2003 identified the bus as bus registered number (ACT) 414. This was amended on the first day of the hearing to refer to bus carrying route number 414.
Documents produced by ACTION buses then assisted in tracing the matter through. Route 414 was a regular ACTION afternoon school bus route, commencing at Canberra Girls’ Grammar School at Deakin at 3.25 pm, arriving at station 4 at St Clare’s and St Edmund’s in McMillan Crescent, Griffith, at 3.45 pm and terminating at Mount Vernon Drive, Gleneagles Estate, Kambah at 4:34 pm.
An experienced driver, Mr Vongphit, who had been with ACTION buses for thirteen years, was identified as the driver of that route on 10 February 2000. He was rostered on to day shift 342 for the period from 31 January 2000. His shift was from 7.49 am to 5.04 pm, and included school route 414 from the Girls’ Grammar School at 3.25 pm to Gleneagles at 4.34 pm. The records were interpreted by Mr Wilson as indicating that on the day in question Mr Vongphit was driving an articulated Mack Renault bus. Probably unsurprisingly, when Mr Vongphit was asked for the first time in April 2002 whether he recalled any such incident, he was unable to do so. He said that no teacher had ever informed him that anyone had been injured by reason of his closing a bus door.
Evidence was given by Mr Kevin Holmes, a solicitor employed in the ACT Government Solicitor’s office having the conduct of the matter on behalf of the defendant. The evidence was initially on the voir dire but was later admitted generally by agreement, avoiding the need for me to determine whether evidence given on the voir dire in a civil action is to be taken to be evidence in the action for all purposes, as was held by Austin J in ASIC v Rich [2004] NSWSC 1062 at [49]. Mr Holmes’ evidence was that he first became aware that there may have been a bus which was not an ACTION bus involved in the plaintiff’s injury, in the course of her evidence in February 2007. There had been a reference to Deane’s buses from Queanbeyan. Mr Holmes contacted Deane’s. From their records, he ascertained that five Deane’s buses stopped at St Clare’s on the afternoon of 10 February 2000. Unit 82 was scheduled to arrive in Bay 2 in McMillan Crescent at 3.27 pm. Units 63 and 68 were both due in Bay 2 at 3.35 pm. Unit 27 was due at 3.45 pm and Unit 83 at 3.48 pm.
Counsel for the defendant called Mr Stephen Bushby, general manager for the last eleven years of Deane’s Buslines Pty Limited. Mr Bushby explained that the first space in Bay 2 was the allocated space for Deane’s buses. He had been to the St Clare’s-St Edmund’s bus zone on occasions. On an odd occasion he had seen a Deane’s bus pull up in another space, but only ever in the upper bay, which he described as Bay 2.
Mr Bushby described the doors on the units scheduled to stop at the school on the day in question as follows:
Unit 27: Ex-ACTION Mercedes – doors closed the same as ACTION buses – would require driver intervention to re-open doors.
Unit 63: Jackknife door – would require driver intervention to re-open door – door closes from the right.
Unit 68: Jackknife door – would require driver intervention to re-open door – door closes from the left.
Unit 82: Single opening door – would require driver intervention to re-open door – door closed from the right side.
Unit 83: Jackknife door – would require driver intervention to re-open door – door closes from the right.

Mr Holmes, having made enquiries of a Mr Sweeney of Deane’s Buslines, formed the view that if the incident involving the plaintiff on 10 February 2000 had happened on a Deane’s bus, it must have been on Unit 68. This was because Unit 68 was the only one of the five buses with what Mr Bushby described as a jackknife door, and Mr Holmes took to be a concertina-style door, which closed from the left (viewed from inside the bus). He excluded the other buses on the basis either that their doors closed from the right or that their doors were not concertina or jackknife-style. It was Unit 68 which was the subject of a view and demonstration involving Mr Holmes outside the court, and which became an exhibit in the proceedings.
Another possibility which was not considered by Mr Holmes or explored on hearing was that the incident might have happened on Unit 27, which was due to depart from the bus stop at 3.45 pm and was an Ex-ACTION Mercedes bus described as having doors which closed in the same way as ACTION buses.

Damages: the evidence in the plaintiff’s case

The plaintiff’s evidence is that on being struck by the bus door on 10 February 2000, she felt immediate pain in the left hip, of such intensity as almost to reduce her to tears. After she had completed her duties and made a written report of the incident, she went to the staffroom and made herself a cup a tea. Her condition by then was, as she described it, pretty dreadful. She sat down and had a good cry. She had been able to bear up in front of the students, but once she was on her own she was able to let go.
She expected that her hip would be bruised but that the bruise and her pain would disappear in time. She continued to come to work at the school. She developed only a very small bruise about the size of a ten-cent piece, but the pain did not go away. It gradually extended into the left leg, and on 22 February, twelve days after the accident, she went to see her general practitioner, Dr Stott. I am satisfied that she saw Dr Scott prior to the incident recorded in her diary during bus duty later in the day.
Reports by Dr Stott were admitted without objection. He recorded the history of having been struck by a bus door on the left hip and buttock on 10 February 2000, with subsequent bruising and pain radiating down the leg, and a sore back. On examination he found tenderness over the lateral left hip. He referred the plaintiff for physiotherapy and prescribed analgesic and anti-inflammatory medication. The plaintiff attended Griffith Physiotherapy where her treatment included ultrasound, massage, manipulation and muscle-stretching exercises.
The plaintiff continued to work for a time but found standing and walking painful. Her symptoms did not improve but rather worsened. The plaintiff found herself in a bad way by the end of the teaching day, and would sometimes go straight to bed when she got home, her husband bringing her dinner in bed.
In August 2000 Dr Stott referred the plaintiff to Dr Charles Howse, a sports physician. Dr Howse diagnosed a chronic traumatic left trochanteric bursitis with elements of a left sacro-iliac joint contusion. He injected the trochanteric bursa under ultrasound control with cortisone, and subsequently also the left sacro-iliac joint. The plaintiff said that the injections, of which she had a number on different days, made her much worse for the ensuing week, doubling to tripling the pain level. She did not detect any benefit from these injections. She struggled to continue working during this period.
Dr Stott gave her a certificate of unfitness for work from Easter 2001. With rest, her symptoms eased but did not disappear.
Until about two months before the accident the plaintiff and her husband had lived on a property at Geary’s Gap near Lake George for about eighteen years. They had a tennis court and played two or three times a week. They had a large garden with an orchard, which required a reasonable amount of heavy work. They moved into the suburbs of Canberra about two months before the accident, to a conventional suburban house and garden. They also owned a dairy farm at Cobram on the Murray River in Victoria, run by one of their sons, and they had bought a small beef cattle property at Bodalla on the NSW south coast, this purchase being the reason for the sale of the property at Geary’s Gap.
The plaintiff started riding a bicycle after moving in to Canberra, an activity she had enjoyed before moving to Geary’s Gap.
In April 2001 the plaintiff arranged to see Dr David McGrath, a physician specialising in pain management. She was concerned about her general lack of progress and wanted another opinion. Dr McGrath thought it likely that she had bruised her left hip and greater trochanter in the initial impact. Time and muscular complications about the pelvis had obscured the diagnosis. Dr McGrath described the plaintiff’s condition as neuro-muscular chaos of the left hip area, with natural involvement of the sacro-iliac joint and lumbar spine because of muscular attachments passing over those joints. Dr McGrath recommended a simple movement routine. He was opposed to passive physiotherapy and stretching routines. He gave the plaintiff some exercises, and thought that she was progressing well with these. By July 2001 the plaintiff was reporting a reduction in pain and Dr McGrath thought that she should return to work, perhaps with some assistance and reduction in hours.
After a term off work, the plaintiff returned to work at the beginning of the third term, at the end of July 2001, but after a few days she found that the standing involved in her work as a science teacher caused too much pain. Sitting for a prolonged period also caused discomfort in the left buttock. This was a symptom which had come on gradually since the initial injury. By early August 2001, the plaintiff was unable to work, and Dr Stott gave her a certificate to that effect.
In October 2001 the plaintiff was referred to Dr Paul Smith, orthopaedic surgeon. Initially Dr Smith agreed with the diagnosis of trochanteric bursitis. He arranged further radiological studies. These demonstrated excess fluid in the left greater trochanteric bursa by comparison with the right. Dr Smith thought that further injections of cortisone under ultrasound control might be helpful. The plaintiff underwent three such injections. The third was extremely painful. The plaintiff did not find the injections of much help to her, although Dr Smith recorded some resulting improvement, including a reduction in tenderness over the trochanteric area.
In May 2002 the plaintiff undertook a graduated return-to-work program supervised through the school’s workers’ compensation insurer. She started with one-sixth of a full workload, which was increased gradually until she reached five-sixths of a full load. She found that she could not cope with this. She went back to Dr Stott who wrote a certificate recommending a maximum of four-sixths (two-thirds) of a full load.
At the end of 2002, Dr Stott moved away from Canberra. Dr Ragg took over as he general practitioner. Dr Ragg suggested acupuncture. This provided no benefit the plaintiff could detect. He referred her to Dr Peter Morris, an orthopaedic surgeon. Dr Morris recommended surgery. This was inconsistent with the advice previously given to the plaintiff by Dr Smith and the plaintiff did not accept the recommendation. By this time the plaintiff was still working but was down to half a full workload.
In October 2003, Dr Ragg referred the plaintiff for an ultrasound of the left hip which revealed a full thickness tear of the left gluteus medius muscle, accompanied by tendinosis of the left gluteus minimus and maximus muscles. Dr Ragg sent the plaintiff back to Dr Smith, by then Associate Professor Smith. Professor Smith recommended surgery in the form of reconstruction of the gluteal tendons, which was carried out early in January 2004. The plaintiff was in hospital for about a week and came out in a wheelchair. She progressed to crutches which she needed for six to eight weeks. Her husband took leave from his employment as a government veterinary surgeon to look after her.
During the post-operative period, the plaintiff found any movement of the left hip painful. About eight weeks after the operation she commenced rehabilitation with a physiotherapist. The plaintiff did not think that she ultimately gained any benefit from the surgery. She thought that by the time she reached a plateau, her pain levels were about the same as before the operation. By Easter 2004 she was able to go back to work with one-third of a full workload, walking on a single crutch. She was required to teach a Year 12 religion class. This involved writing on a whiteboard. She is right-handed and had to try to write with her right hand while her right arm was holding the crutch. She continued in this attempt for about five weeks, when on Dr Ragg’s advice she stopped work, as she put it, to give herself a chance to get over the surgery. She did not return to work again, although she retained an expectation of getting back to work once she was capable of it.
Associate Professor Smith reviewed the plaintiff at the end of July 2004, six months after the surgery. He noted that she was unable to return to work at that time because of discomfort on activity and on prolonged standing. He advised her to continue with her rehabilitation program, and thought that she should improve progressively over time.
During September the plaintiff had a meeting with the principal of the school. At the end of October 2004 she received, without warning, a letter from the director of the Catholic Education Office for the Archdiocese of Canberra and Goulburn, noting that her most recent return-to-work program had been unsuccessful. Advice from the rehabilitation consultants was that the plaintiff would only be fit for part-time non-teaching duties until the end of November 2004, with no indication about her prospects of returning to full-time teaching. The school, he said, did not have any non-teaching duties available, and there were no suitable duties for her to perform if she were to return to work. As it was now nearly five years since her injury, the director had formed the view that the employment relationship had been frustrated. Her services were terminated with effect from 1 November 2004.
The director softened the blow by thanking the plaintiff for her services to the Catholic Education Office over many years. He said that her efforts and dedication to her students had been greatly appreciated, and expressed the hope that she would be able to pursue other rewarding endeavours.
The plaintiff said that the letter came to her as a cruel blow. It was the end of teaching and of her association with the school, and it removed what she viewed as an avenue for her recovery and eventual return to work. She kept her eye on newspaper advertisements for teaching positions until the start of the 2005 school year. After that, she said, there was not much point because teaching jobs were generally advertised until January, after which schools were generally fully staffed for the year. She had not continued to look for teaching work after that, being disheartened and pessimistic about the likelihood of her finding teaching work.
Since then, the plaintiff said, her hip and related pain, and restriction of activity, have continued at much the same level. The pain is there all the time, although if she is busy doing something interesting she does not notice it as much. It is aggravated by physical activity, including standing and walking. By the time of the hearing, the plaintiff said that she did little walking other than around the house. On some days she could walk to the shop across the road from her home. On other days she found it painful even to get out of bed. She continued with remedial massage, physiotherapy and Pilates. She took Panadol or aspirin two or three times a week, and sometimes more often. She had had adverse reactions to a number of prescribed medications over the years.
She had attempted tennis, just hitting a ball up against a wall, but the pain afterwards was so great that she did not think this was worth pursuing. She continued to cycle regularly, to church and to the Dickson shops about three kilometres from her home. She finds that she can cope with housework if she paces herself, but her husband still does quite a lot of the housework and virtually all of the gardening.
The plaintiff was asked about her pre-injury intentions about retirement. She was fifty-nine when injured, and sixty-three when her employment was terminated. She is now sixty-seven. She said that she had had no plans to retire. Teaching was her life. She found it very fulfilling and loved it. She thought it quite likely that she would have been still teaching by the time of trial if she had not been injured. She did not have and had not had any other major health problems.
Her counsel asked her whether she had thought of undertaking any other kind of paid work. She said that she had thought of working in archives, after her experience at the school. She identified a two-year course she could do by correspondence but the cost was $8,000.00 and she did not think that there was any guarantee that she would find employment when she finished it.
She and her husband still visited the farms at Cobram, some five hours away, and Bodalla. She said that they needed to take breaks for her to get out of the car and stretch on the long trips, and that she contributed very little to any farm work.
In cross-examination the plaintiff was asked about a note by a physiotherapist in June 2004 that she had said that her husband’s back was very bad and that she needed to do the housework herself. She recalled that her husband had injured himself in a bicycle accident going to work one morning, and this was probably at this time. He had not taken any time off work. She also agreed that in about 2005 she and her husband had looked after the beef cattle property at Bodalla for about two months while their son was away. The work on the farm included picking up sticks which had fallen from gum trees, including fairly large branches, for removal.
As early as April 2000, the plaintiff and her husband had been to New Zealand to visit their son and daughter-in-law. She was cross-examined about something she had told one of the doctors, that during that trip her pain had been aggravated by a lot of walking. She explained that they had planned the trip as one which was to include walking through forests, but that while the rest of the family was so engaged, she had sat in the car and read a book. She thought that she had probably been involved in a little more walking during that trip than at home. She agreed that she had been an enthusiastic and energetic walker prior to her injury.
Counsel for the defendant directed the plaintiff’s attention to a note by a physiotherapist to the effect that the plaintiff had been to Cairns in Queensland 2003. She had done quite a lot of walking, and had thrown her right hip causing pain down the right leg which lasted for eight days. The plaintiff did not remember the conversation or any incident in Cairns involving her right hip.
At the end of 2001 the plaintiff and her husband flew to Spain and then to Peru. They returned via Argentina at the end of February 2002.
The plaintiff’s husband gave oral evidence. He was still working part-time on contract with the Commonwealth Department of Agriculture, Fisheries and Forestry, having retired from full-time employment with the Department some months earlier at the age of sixty-five. By the time he gave evidence he was sixty-six. His contract was due to expire two or three months later, and he had not formed an intention as to whether to apply for a further contract. His evidence was generally consistent with that of his wife. He volunteered in the course of cross-examination that on one occasion the plaintiff had driven a tractor at the Bodalla property, slashing bracken and blackberry in a paddock. She might have done this on two occasions.
The plaintiff’s present general practitioner, Dr Ragg, gave oral evidence to supplement three written reports which were tendered. His view was that she was permanently unfit to return to work as a school teacher, and that there was no further treatment available to relieve her symptoms. Interestingly, he said that in his twenty-seven years of general practice, he had only seen two gluteal tears. The plaintiff’s injury was an extremely unusual one. He agreed in cross-examination that the classic mechanism for such an injury would be the sudden and unexpected taking of the weight of the body on the left leg as that leg, to some extent, collapsed inwards towards the right leg.
The treating orthopaedic surgeon, Associate Professor Paul Smith, gave oral evidence supplementing his reports. He saw the plaintiff in February 2006, two years after her surgery. She complained of continuing pain and disability related to her original problem. The pain around the left buttock and trochanteric region was of a fluctuating nature, with good and bad days. Because of the pain the plaintiff had been unable to continue working. On examination she was seen to have an excellent range of left hip movement without restriction. She had a persisting Trendelenburg-positive gait and obvious abductor muscle weakness. Professor Smith found that she was suffering from left abductor mechanism weakness which was probably contributing to an intermittent pain syndrome with muscle fatiguing. Two years after surgery she was likely to have reached the plateau stage of her recovery. Her condition was unlikely to change in the future. There was no indication for further surgery. Professor Smith supported the use of conservative treatment such as massage and physiotherapy to control her symptoms in the long term.
When Professor Smith first saw the plaintiff on October 2001, he found on physical examination that she was “Trendelenburg negative”. He referred the plaintiff for an MRI scan which did not demonstrate tearing of any of the gluteus tendons. He thought at that time that she had low probability of coming to surgery.
His view changed when he saw a report of an ultrasound examination in October 2003 which showed tendinosis and a tear of the gluteus minimus tendon. In January 2004, Professor Smith performed a surgical reconstruction of the gluteal tendons. He was satisfied that an impact with a bus door as described by the plaintiff was the probable cause of the tear to the tendon. Professor Smith explained that such an injury is not a well understood syndrome. It was an area of evolving and advancing knowledge. Rather less was known about such an injury when he first saw the plaintiff in 2001 than by the time he gave his oral evidence. In particular, the imaging strategies and thus the understanding of the pathology of the problem was far less clear. A woman in her late fifties could well have an area of tendinosis which was sub-clinical. Tendinosis was degeneration of a tendon, often due to normal aging. Professor Smith compared it to a piece of rope becoming frayed over time. Tendinosis was detectable radiologically by the time of the hearing but might not have been five or ten years earlier. With such tendinosis in a patient, a minor insult could cause a partial or even full thickness tear of the tendon. If one accepted that the plaintiff was asymptomatic before the event and symptomatic after it, this was consistent with the event being the cause of the tear to the tendon. Professor Smith said that he had treated a number of people with trochanteric tears over the previous five or six years. In some cases these had manifested themselves after trauma, but in others they had been apparently caused by no more than a simple change of posture. He agreed that primary trochanteric bursitis would be less likely to be produced by a more minor injury than by a major one.

In the course of cross-examination about trochanteric bursitis, Professor Smith clarified the term. He said that the term used to be used as a description for pain around the trochanteric prominence. It was called trochanteric bursitis because doctors did not know anything about it. The evolution in medical knowledge over the last five to ten years had led to evolution of the nomenclature. Trochanteric bursitis, by the time he gave his evidence, was reserved for a much smaller group of patients with histological evidence of bursitis, and the remaining patients with pain in the area were described as suffering from greater trochanteric pain syndrome. His opinion was that the plaintiff suffered from trochanteric bursitis as now understood, and that this was confirmed by histological analysis of tissue taken from the bursa at the time of surgery.
Professor Smith thought that there might well have been a tear at the time of the initial trauma, consistently with the history obtained from the plaintiff that she had no symptoms before the incident but did have symptoms immediately following it.
Counsel for the defendant cross-examined Professor Smith as to whether the tear to the tendon might have happened in the incident on 22 February 2000 when the plaintiff was pushed by a group of schoolchildren into the side of a bus. His response was that a person playing sport could hurt a tendon in one incident, then engage in further sporting activity and tear the tendon fully. The fact that two separate incidents had occurred did not mean that the first one had not damaged the tendon, particularly where pain dated from the time of the first incident. The damage to the tendon may have been made worse by the second incident.

The medico-legal evidence

The workers’ compensation insurer of the school arranged for the plaintiff to be assessed by two orthopaedic surgeons, Dr Anthony Smith and Dr Derrick Billett. Dr Smith saw the plaintiff in July 2001. The plaintiff gave him a history of being struck by the door of a bus while standing in the doorway directing children on 10 February 2000. She did not tell him about the incident on 22 February 2000, and indeed no history of that incident was provided to any of the doctors for the purpose of their reports. Dr Smith thought that it was possible that she had trochanteric bursitis although no evidence of this was demonstrated on x-ray or bone scan. He suggested further radiological investigation. He saw her again in May 2002, by which time there were further x-rays and MRI scan reports. He thought that she did “not really have trochanteric bursitis to any great extent”. He thought that condition played no significant part in her illness. It was more likely that her symptoms were caused by degenerative disease in her lumbar spine. In his opinion there was no evidence of any permanent disability. The plaintiff was fit to work as a teacher and did not require any domestic assistance.
Dr Billett saw the plaintiff in October 2001 and again in April 2002. He agreed with Dr Smith that part of her pain probably emanated from degenerative changes in the lumbar spine which were aggravated by the incident of 10 February 2000, making the condition symptomatic. However, he thought that her problem revolved around her left hip and that that should be further explored. He also suggested further radiological investigation. By the second consultation, Dr Billett thought that the plaintiff might have injured the labrum of her left hip and suggested an MRI study with contrast, to investigate the possibility of an injury to the labrum. In his view the plaintiff was able to continue working provided that she could sit or stand as the need arose. Her condition had not yet stabilised and her prognosis was guarded.
Dr JA Corry, now retired but then a consultant physician in rehabilitation and pain medicine, examined the plaintiff at the request of her solicitors in November 2002 and in April 2006. In his first report, he said that clinical examination and ultrasound studies confirmed an injury in the region of the left greater trochanteric bursa and a possible minor strain of the left sacro-iliac joint. He did not expect complete recovery. She would continue to have low grade symptoms indefinitely although their severity could be modified by treatment. Her symptoms were a direct consequence of the blow to the outer side of the left hip in February 2000.
In his second report, more than two years after the plaintiff’s surgery, he noted that her symptoms had not improved. He referred to the ultrasound confirmation in October 2003 of a full thickness tear of the gluteus medius tendon and a partial tear of the gluteus minimus tendon. He noted that this type of pathology had been reported for the first time in the medical literature in 1997 and was probably more frequent than had previously been recognised. His opinion was that a direct blow to the outer side of the left hip would not have directly caused tears in the tendons but did cause injury to the trochanteric bursa and sacro-iliac joint. When he had seen the plaintiff in 2002 there had been no signs of abductor weakness and no positive Trendelenburg gait. It seemed probable that the tendon tears had occurred since then. They were probably a consequence of inflammatory changes associated with the trochanteric bursitis, weakness in the buttock muscles and tendons as a result of reduced activity, or attenuation and weakness within the tendons as a result of repeated steroid injections. All of these were secondary consequences of the injury of February 2000. It was unlikely that the plaintiff’s level of disability would change significantly in the future and there was a risk of recurrent acute exacerbation of symptoms with minor trauma. She had limited capacity for part-time sedentary work.
Dr Corry gave oral evidence. The incident of 22 February 2000 was put to him. He did not alter the opinion he had expressed previously.
Reports were tendered by counsel for the defendant from Associate Professor Robert Oakeshott, a consultant surgeon, Dr TP Davis, another consultant surgeon, and Dr James Linklater, consultant radiologist.
Professor Oakeshott saw the plaintiff in March 2005 and September 2006. He obtained the same history as had been given to the other doctors. In his first report, he said that on the balance of probabilities the plaintiff’s injuries had been caused during the incident on 10 February 2000. He could not identify any other incident which might have been the cause, though he noted that the plaintiff continued to work after the incident and did not consult her general practitioner until 22 February 2000. She was in his view permanently partially incapacitated for work. No further treatment was indicated. She should be encouraged to undertake physical activity within her capacity.
Professor Oakeshott was then asked whether a blow from a closing bus door to the left hip region was likely to cause a full-length (sic) tear to the gluteus medius tendon. His response was that he had been informed that the major injury identified at operation was a tear of the gluteus minimus tendon with inflammation of the adjacent gluteus medius tendon, the former being repaired surgically. In his opinion a direct blow to the left hip region would, in itself, not cause such an injury to the gluteus minimus tendon. The injury could conceivably have occurred when the plaintiff took weight on the left leg suddenly, contracting the relevant muscles. If there had been two such incidents, the sudden weight transference incident would be the one likely to have caused the damage. A tear of a tendon would cause significant discomfort in the left hip at the time of its occurrence.
In his report following the September 2006 consultant, Professor Oakeshott recorded a positive Trendelenburg test; that is, when the plaintiff took full weight through her left leg, the right side of her pelvis dropped slightly. This was because the muscles on the outer side of the left thigh could not support the pelvis horizontally when she was not taking any weight through the right leg. This was an indication of weakness of the abductor muscles of the left thigh, a direct result of the injury to the left thigh region, and the cause of the plaintiff’s slight limp. Although Professor Oakeshott conducted a physical examination in March 2005, he did not mention the positive Trendelenburg test in his first report.
Professor Oakeshott concluded that the plaintiff had made a suboptimal recovery from the injury to the left hip region and from her surgery. She had achieved maximum medical improvement. No significant further improvement, or deterioration, was to be anticipated. She remained permanently partially incapacitated for work.
Professor Oakeshott gave oral evidence by telephone. He accepted that the incident of 22 February 2000 had been capable of causing a tear to the gluteus minimus tendon. He explained that the gluteus minimus muscle is a strong strut muscle. It is used constantly when walking. To rupture the tendon of that muscle would require a significant force. One of its functions is to prevent the opposite hip falling away when walking. A sudden contraction of the muscle with significant force when weight-bearing might rupture the tendon. Comparing the descriptions of the incident on 10 February and the incident on 22 February 2000, he thought that the second incident was the more likely cause of such an injury. The plaintiff had not mentioned the second incident to him as part of her history. It was a very unusual injury. Professor Oakeshott had never been involved in the treatment of such an injury in the course of his practice. He thought that such an injury would be immediately and extremely painful. The injury would lead to a positive result of abnormality on a Trendelenburg test. Professor Oakeshott had obtained a positive result when he examined the plaintiff in September 2006.
Professor Oakeshott did not agree with Dr Corry that the torn tendon might have been associated in any way with the plaintiff’s trochanteric bursitis. He thought that weakness in the buttock muscles and tendons as a result of reduced activity was unlikely to cause a rupture of a muscle tendon. He accepted that steroid injections in close relationship with a tendon might be a causal factor. If the plaintiff had had a number of injections, say more than three, he would be concerned that with such an amount of steroid in the area, the tendon could have been weakened by force causing a rupture. The force might, for example, be a sudden taking of weight on the left leg.
Cross-examined further about the two incidents, Professor Oakeshott said that the second incident on 22 February sounded a significant incident in relation to the gluteus minimus muscle, probably more significant than the incident on 10 February. However, accepting that she had had symptoms from 10 February, she must then have suffered an injury to the left hip region. The second incident either aggravated that pre-existing injury or caused the rupture of the tendon. If the increase in symptoms was relatively short-lived, it was more likely that the second incident represented an aggravation of the previous injury.
Informed that Dr Paul Smith had carried out a Trendelenburg test in October 2001 with a negative result, Professor Oakeshott said that it would be reasonable to conclude that there had been no significant problem with the muscles of the left hip at that time.
Professor Oakeshott agreed with Dr Corry’s evidence as to the literature dealing with the evolving medical understanding of the pathology of the gluteus tendons. This included the statement that precipitating trauma was reported in only about 10% of patients with intractable pain from trochanteric bursitis, with most such patients having some evidence of tendon inflammation and about 10% having a full thickness tear.
An MRI scan of the plaintiff’s hips at the end of October 2001 had been reported upon by Dr Malcolm Thomson, radiologist, as showing minimal oedema in the trochanteric bursal regions, more prominent on the right, and of questionable significance, with no other abnormality. In March 2007, Dr Jeremy Price, a Canberra radiologist, was asked by the plaintiff’s solicitors to review the MRI scan. He reported that in hindsight it showed moderate diffuse atrophy of the left gluteus minimus muscle belly. The left gluteus medius tendon appeared normal. The gluteus minimus tendon was attached to the greater trochanter. No other abnormality was seen. Dr Price expressed the opinion that the scan showed some atrophy consistent with chronic tendonitis confined to the left gluteus minimus tendon, with no significant abnormality in relation to the left gluteus medius muscle or tendon.
Confronted with this opinion, the solicitors for the defendant qualified Dr James Linklater, a Sydney radiologist, in July 2007. He said that the MRI was of limited image quality. There was arguable evidence for a subtle incomplete tear of the antero-superior acetabular labrum. The gluteus minimus and medius tendon insertions were intact. No trochanteric bursitis was evident. There was mild bilateral fatty infiltration of the gluteus minimus muscles on both sides. This was a common finding, of limited significance.
A copy of Dr Linklater’s report, though apparently not that of Dr Price, was provided to Professor Oakeshott for comment after he had completed his oral evidence. His comment was “in my opinion the comments by Dr Linklater are inconclusive and do not definitely show any evidence of any additional injury that could be attributed to the accident on 10 February 2000. In other words, this additional information does not cause me to alter my opinion as expressed in my earlier reports”.
Dr Davis saw the plaintiff on one occasion, in September 2006. He provided a written report but did not give oral evidence. The history given to him did not include any mention of the incident on 22 February 2000. This was, of course, well after her surgery. Dr Davis had the benefit of Dr Corry’s report of April 2006 and agreed with Dr Corry’s opinion, particularly in relation to causation. In general terms he agreed that the plaintiff suffered from left trochanteric bursitis and tears to the gluteus muscles, caused by the blow to the hip on 10 February 2000. He expressed the opinion that she was fit, when he saw her, for selected duties of a sedentary nature either in a clerical, administrative or retail capacity.

Findings

Despite submissions by counsel for the defendant to the effect that the plaintiff should be regarded as an unreliable witness, I came to the firm view during the lengthy period she spent in the witness box that she was a completely honest and truthful witness. I have no doubt that she was attempting to give her evidence honestly and truthfully to the best of her recollection. That is not to say that I accept all of her evidence as completely accurate: she was doing her best to remember and recount events of seven years earlier. Although she was an impressive witness, she would not be human if she did not make some errors of recollection.
I accept her evidence about the computer entries which constituted her diary. In particular, I accept that the entries in February 2000 were made within days of the events. Counsel for the defendant did not suggest that anything in the entries had been fabricated to support her claim in these proceedings, and I am satisfied that the entries were not made with a view to the proceedings at all. Indeed, the existence of the diary notes came out only when the plaintiff volunteered the information in the witness box. It was apparent that her solicitors and counsel had been unaware of them previously. I regard the diary notes as likely to be truthful and accurate, and, to the extent that they may conflict with the plaintiff’s recollection at the hearing, to be the preferable account, being close to contemporaneous.
I therefore accept that at about 3.45 pm on Thursday 10 February 2000 the plaintiff was standing on the bottom step of a bus, with her back to the driver, giving directions to a group of schoolboys, when the bus door on her left suddenly and without warning closed and struck her on the left hip.
The plaintiff was at all times quite clear that the bus was an ACTION bus. There was no suggestion to the contrary until well into the hearing. Having viewed a typical ACTION bus and a typical Deane’s bus of the time, I accept that the plaintiff would have appreciated the difference at the time and would have been well aware that the bus was a Deane’s bus if that had been the case. I am left in no doubt that the bus on which the plaintiff was injured on that day was an ACTION bus. It may well have been the bus driven on that day by Mr Vongphit on the Girls’ Grammar-Gleneagles run, but I cannot be satisfied on the balance of probabilities that it was that particular bus.
I accept the evidence of the witnesses called by the defendant, that the bus was probably a Mack Renault bus. It does not matter for the purposes of the case whether it was an articulated bus or a rigid bus, because the front portion of the two models of bus was the same. The evidence did not go so far as to identify all of the ACTION buses which attended the school on the afternoon in question, although the evidence did identify all of the Deane’s buses which did so. This was understandable because the ACTION bus driven by Mr Vongphit was identified quite early on and accepted on both sides to have been the bus in question. It may have been, but equally it may not have been. If it was not, that would explain why Mr Vongphit had no recollection of such an incident when he was asked about it two years later. It is also possible that he was the driver but that the incident appeared to him at the time to be so minor that he did not commit it to memory.
The defendant called evidence, including experiment or demonstration evidence, with a view to establishing that the mechanism of the front door of a Mack Renault ACTION bus could not have struck the plaintiff forcefully on the left hip if she was in the position she claimed to have been in. Counsel for the defendant also placed considerable reliance on the plaintiff’s evidence of her recollection that the door which struck her had been a concertina-type door. As to the latter point, the plaintiff frankly conceded that she had not taken much notice of the mechanism of the door at the time, and that her recollection of a concertina-type door may have been a reconstruction after the event.
The ACTION Mack Renault buses had a central handrail on their entry steps. The plaintiff had not mentioned a handrail as being a feature of the bus on which she was injured, and conceded that she was surprised to see the handrail in place on the view. When she was first cross-examined about this, her response was that she remembered that some buses had a central handrail, and perhaps all did, but she did not remember exactly what was there on the bus on which she was injured. It was put to her that if the bus had double doors there would be a central handrail. She replied that she had not thought about whether only buses with double doors had a central handrail, but she supposed that that was correct. In relation to this issue, I accept the plaintiff’s evidence that she did not take a great deal of notice of the particular elements of the doors and steps at the entry to the bus on the day. She had not been asked to direct her mind to the doors or steps or whether there was a central handrail until the hearing, more than seven years after the event, and it is hardly surprising that she had no specific recollection about it. I am satisfied that more probably than not the injury occurred on a Mack Renault ACTION bus of the same configuration as the one seen on the view, that is with a double door, non-folding, and a central handrail.

I do not find it necessary to make a specific factual finding as to precisely how the bus door struck the plaintiff. I am satisfied that she was struck and suffered a sharp and painful blow. I am satisfied that this occurred while she was standing on the bottom step of an ACTION Mack Renault bus.
I am also satisfied that the closing mechanism of the door must have been activated manually by the driver. One can only speculate as to why he did so at a time when the plaintiff was standing in the path of the door. Whatever the position in that regard, the driver owed persons in the position of the plaintiff a duty of care not to operate the door-closing mechanism at a time when such a person was in the path of the door. It was reasonably foreseeable that if the door closed on a person in those circumstances, the person might suffer injury. In this regard it is relevant that in 2000 there was no release valve on bus doors which would cause the door to open again automatically if it struck an obstacle. The valves were installed in ACTION buses some two years later. The driver must have been aware that if the door struck a person it would not retract, but that its force would cause it to continue to close until it reached the fully closed position. Thus I find that the cause of the door striking the plaintiff was the negligence of the driver, for which the defendant is vicariously liable.
Contributory negligence is pleaded in the defence. Counsel for the defendant did not address on this issue. I can see nothing in the conduct of the plaintiff which could amount to contributory negligence.
I accept the plaintiff’s evidence that the impact caused her immediate pain. I accept generally the evidence about the impact of the injury on her.
Counsel for the defendant submitted that I should find that the incident of 10 February 2000 was a relatively minor one, and that the injury which led to the damage to the plaintiff’s gluteal tendons was the incident on 22 February 2000. I accept the plaintiff’s evidence that her hip pain continued during the twelve days up to 22 February, and that she saw her general practitioner on that day, prior to the second bus incident. I accept that the second incident caused considerable pain at the time, because it was a bump to the same area as had been injured previously. However, I accept the plaintiff’s explanation that the increase in pain was temporary, and that she did not regard the incident as one of any significance. That, it seems to me, is the reason she did not mention the incident to her doctors or her solicitors. She did not go back to the doctor immediately after the incident. Two days later, she went for the first time to the physiotherapist to whom Dr Stott had referred her.
It is clear from the negative Trendelenburg test carried out by Professor Smith in 2001 that the gluteal tendon was not torn fully at the time of either the 10 February or 22 February 2000 incident.
I find that at some time between the October 2001 MRI scan and the ultrasound of October 2003, the condition of the plaintiff’s gluteal tendons deteriorated. There is no evidence of any traumatic incident between those dates. In the circumstances the condition by October 2003 must be blamed on the initial injury.
Where there is a difference of opinion between the orthopaedic surgeons, I prefer the opinion of Associate Professor Paul Smith, the treating surgeon, to those of the orthopaedic surgeons who examined the plaintiff for the purpose of reports to the defendant and the workers’ compensation insurer: Dr Billett, Dr Anthony Smith, Associate Professor Oakeshott and Dr Davis. Each of these saw the plaintiff in the context of a medico-legal consultation on only one or two occasions, and each of them, from the letterhead of their reports, appears to be part of a large medico-legal group practice. The evidence did not enable me to arrive at a finding in the case of any of those doctors as to whether they are still in clinical practice or indeed how long it might have been since they retired from active practice. Associate Professor Paul Smith is in active clinical practice as an orthopaedic surgeon in Canberra and saw the plaintiff on many occasions, including for the purpose of his surgery on her. He also experienced at first hand the physical condition of the muscles and tendons at surgery.
Dr Corry was, at the times he saw the plaintiff, in practice as a rehabilitation physician, and I found his reports and oral evidence helpful. It is unnecessary for me to make detailed comparisons of the various expressions of opinion of the doctors. I am satisfied that the blow to the hip on 10 February 2000 was the cause of the plaintiff’s injuries and continuing disabilities. The incident of 22 February 2000 was at most an aggravation to the earlier injury, and may have been no more than a short-term aggravation.

Damages

There is no real issue on the medical evidence about the plaintiff’s disabilities, treatment, present condition or likely future course.
The plaintiff has been through more than eight years of hip pain. Before her injury she was a fit and healthy woman who enjoyed her work as a schoolteacher and her leisure activities of tennis, walking, gardening and generally engaging in a full life. Her injuries have resulted in the termination of her employment. She can no longer play tennis. The pain is with her all the time. She has been through a considerable amount of medical treatment including physiotherapy, cortisone injections, acupuncture, massage and surgery. None of the treatment has resulted in any significant improvement in her condition. What appeared at the time to be a relatively minor incident, causing immediate symptoms which she expected would quickly resolve, has caused a complete change in the plaintiff’s life. It is to her credit that she has maintained a positive approach to life and has continued to engage in physical activities, such as cycling and helping on her son’s farms, to the extent she can.
I invited counsel to put a range for general damages. Counsel for the plaintiff suggested a range of the order of $80,000.00 to $90,000.00. Counsel for the defendant was unavailable on the last day of the plaintiff’s submissions but subsequently made written submissions in reply. These did not deal specifically with quantum of general damages. Counsel for the defendant would have been in some difficulty about this, with the defendant’s primary position being that the incident of 10 February was very minor, and that the plaintiff’s major injuries were caused by the incident on 22 February 2000 for which the defendant should not be held responsible. After giving the matter considerable thought, I have arrived at the view that a proper award for general damages for pain and suffering and loss of enjoyment of life is $90,000.00, of which I apportion half to the past and half to the future. The past component of $45,000.00 attracts interest at 4% per annum. The amount should be seen as spread over the period of seven and a half years since the injury. I award $7,000.00 for interest on past general damages.
Treatment expenses were agreed to the date of hearing at $63,844.00. Since then the plaintiff can be expected to have spent a small amount on medication. I allow $64,000.00 for past out-of-pocket expenses. There is no claim for interest on this amount, the bulk of which has been paid by the workers’ compensation insurer for the school.
As to the future, the plaintiff is now sixty-seven. She can be expected to live for about another twenty years according to the Australian life tables. The present value of one dollar per week for twenty years on the 3% tables is $788.00. The plaintiff will continue to need medication and will have occasional visits to the doctor by reason of the disabilities consequent on her injury. In the absence of specific evidence about the likely extent and cost of future treatment, I allow $5,000.00 for future treatment expenses.
As to past loss of earnings, I think it likely in the absence of injury that the plaintiff would have continued to work as a schoolteacher until the end of the present school year, but that she would probably have then retired from full-time employment. I take account of the fact that her husband had retired by the time of the hearing and was employed on a six-month contract for a particular task. He had not decided whether he would undertake future contract work if it were offered to him. I think it likely that by about the end of this year, they would both have decided to give up full-time work so as to be available to spend more time with their children and in leisure activities generally. The plaintiff would, if it had not been for the injury, have retained some capacity to earn income after retirement and may have chosen to do so, perhaps by way of locum schoolteaching work, private coaching and tutoring or helping with school archives.
In calculating damages for past economic loss, I must take account of the possibility that if the plaintiff had not been injured in February 2000, the vicissitudes of life might have interfered in some other way with her capacity to earn income, and I should make some small reduction to reflect that possibility.
Counsel for the defendant accepted the arithmetic of calculations prepared by counsel for the plaintiff which resulted in a claim up to 31 July 2007 of $224,560.00 for past loss of earnings. This included a gross amount of $75,733.22 received by the plaintiff by way of workers’ compensation up to 18 April 2006. I take it that no workers’ compensation payments have been made since that date. That figure includes $19,690.64 tax deducted from the payments made. Because the plaintiff will be required to repay out of her damages the gross amount but has received only the net amount, she is entitled to recover an amount equal to the deducted tax: Fox v Wood (1981) 148 CLR 438. I allow $19,690.64 in that regard.
For the period of some thirteen months since 31 July 2007, the plaintiff will have lost a further net amount of about $56,000.00. This would mean a total loss of earnings for the past of about $280,000.00, which I reduce to $270,000.00 to reflect the vicissitudes I referred to earlier.
The past economic loss component, less the workers’ compensation received, attracts interest. This had been calculated by counsel for the plaintiff, up to 31 July 2007, at $56,875.00. There is a further thirteen months interest, at the prescribed rate of 9% per annum. I allow $76,500.00 for interest on past economic loss.
For impairment of earning capacity for the future, I assume that the plaintiff would have continued to work full-time until the end of 2008 and would have earned a net amount of about $24,000.00 during that period. After that, I think it likely that the plaintiff probably would have worked from time to time and earned some income over the next few years. I allow, after taking account of vicissitudes, a total sum of $40,000.00 for loss of earning capacity for the future.
The plaintiff claims for loss of superannuation benefits. For the past, her counsel had calculated this loss at $16,418.00 to the end of July 2007. I apply the compulsory employer’s superannuation figure of 9% per annum, and applying that to the amount I have allowed for loss of earnings since the end of July last year, and taking this to the end of 2008, award $23,500.00 for loss of superannuation benefits.
A claim is made in respect of the plaintiff’s need for care, principally provided by her husband, made necessary by her injury, in particular during her recovery from surgery in January 2004. Sensibly, the evidence about this aspect of the matter was provided in general terms, rather than in the artificial manner commonly encountered where witnesses are asked to give precise evidence of hours per day or week spent providing services. I accept that there were many things that the plaintiff was unable to do, particularly in the period following surgery, which her husband did for her, and also that there were many things which she used to do for her husband and for her household which she was unable to do, and which fell to her husband. The Court would generally have allowed an hourly rate for the provision of services in 2000 of about $15.00, and by the present time of about $20.00, in the absence of evidence about commercial charges. Rather than adopt a strictly mathematical approach, it seems to me appropriate in this case to allow $10,000.00 for the past Griffiths v Kerkemeyer component, plus interest at the prescribed rate of 9% per annum of $4,000.00. To allow for the likelihood that the plaintiff will have a continuing need for services in the future, I allow $5,000.00.
The components of the award are:

General damages $ 90,000.00

- interest on past component $    7,000.00

Past out-of-pocket expenses $ 64,000.00

Future out-of-pocket expenses $    5,000.00

Past loss of earnings $270,000.00

- interest thereon $ 76,500.00

Fox v Wood component $ 19,690.64

Loss of earning capacity - future $ 40,000.00

Loss of superannuation benefits $ 23,500.00

Griffiths v Kerkemeyer component

- past $ 10,000.00

- interest thereon $    4,000.00

- future $    5,000.00

Total $614,690.64

On consideration, I am satisfied that the total amount represents a proper reflection of the impact of the plaintiff’s injury upon her. There will be judgment for the plaintiff for $614,690.64. I shall hear the parties as to costs.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 5 September 2008

Counsel for the plaintiff:  Mr RL Crowe SC
Solicitors for the plaintiff:  Pamela Coward & Associates
Counsel for the defendant:  Mr J Pappas
Solicitor for the defendant:  ACT Government Solicitor

Date of hearing: 12, 13, 14 February, 30, 31 July, 1, 2 August 2007
Written submissions received: 17 August 2007

Date of judgment: 5 September 2008

General damages	$ 90,000.00
- interest on past component	$ 7,000.00
Past out-of-pocket expenses	$ 64,000.00
Future out-of-pocket expenses	$ 5,000.00
Past loss of earnings	$270,000.00
- interest thereon	$ 76,500.00
Fox v Wood component	$ 19,690.64
Loss of earning capacity - future	$ 40,000.00
Loss of superannuation benefits	$ 23,500.00
Griffiths v Kerkemeyer component
- past	$ 10,000.00
- interest thereon	$ 4,000.00
- future	$ 5,000.00
Total	$614,690.64