Morrow v Watts No. DCCIV-00-1695

MORROW v WATTS
[2002] SADC 104
Judge Rice
Civil
Introduction

In this action the plaintiff claims damages against the defendant arising from a motor vehicle collision on 7th April, 2000 on Hutt Road, Adelaide. The facts are examined in detail below, but, put simply, the plaintiff alleges that she was travelling in the right hand lane for southbound traffic when the defendant, without warning, suddenly performed a U-turn across her path and the two vehicles collided. The plaintiff contends, by virtue of the nature and suddenness of the manoeuvre performed by the defendant, that she should bear no responsibility for the collision.
The defendant, on the other hand, contends that he was almost stationary in that same lane waiting for northbound cars to pass so he could turn around to go north when the plaintiff simply crashed into him. Effectively, the defendant says that the plaintiff alone was responsible for the collision.
The plaintiff seeks a declaratory judgment and an interim assessment of damages pursuant to ss.37 and 38 of the District Court Act. On that basis, it is proposed that the final assessment of the plaintiff’s damages be adjourned until her injuries have stabilised and the full extent of her residual disabilities can be medically assessed. For present purposes, the plaintiff seeks awards for economic loss, voluntary assistance and special damages by way of medical and treatment expenses. At this stage of the proceedings the plaintiff does not press for an award of damages for non economic loss. No security is sought for payment of damages yet to be assessed.
Facts of the case - liability
The following witnesses were called during the case for the plaintiff: the plaintiff herself, Mr Paul McGavin (her brother), Mr L.L. Hoare (orthopaedic surgeon), Dr A.E. Dean (the plaintiff’s general practitioner), Mr C.T. Hall (road accident consulting engineer) and Mr C. Strudwick (former police officer in Adelaide Traffic Division).
The defendant called the following witnesses: the defendant himself, Mr B.A. Watts (the defendant’s younger brother) and Mr H.S. Aust (road accident consulting engineer).
Plaintiff’s account
The plaintiff is now aged 45 years, having been born on 12th September, 1956.
As mentioned, this collision occurred on Friday, 7th April, 2000. That day was the first day of a series of car races in Adelaide known as the “Clipsal 500”. The plaintiff drove into town that morning and, at about 9.00 a.m., dropped off her husband and brother in Gilles Street to enable them to attend the events scheduled for that day. Also in her car was her four month old baby boy. The baby was asleep in a rear-facing baby capsule positioned in the middle of the back seat.
From Gilles Street, the plaintiff turned right into a side street and then right into South Terrace, Adelaide, east of Hutt Street. She was planning to return to her home at Seacombe Heights. She proceeded west along South Terrace to its intersection with Hutt Street/Hutt Road. She was the first car in the left hand lane and waiting for the lights controlling her direction of travel to turn green. Once those lights turned green she turned left to travel south along Hutt Road towards Greenhill Road. Shortly after she turned the corner she changed lanes into the right lane, being the lane closest to the middle of the road, and increased speed up to about 60 kilometres per hour.
The relevant portion of the eastern side of Hutt Road consists of a parking lane at that time of day and two traffic lanes. The western side is a mirror image of the eastern side. The plaintiff was aware of parked cars on her left hand side as well as cars in the lane next to her. At that time, the centre line consisted of a solid or unbroken white line in the middle of the road.
It was accepted that the plaintiff was wearing a seat-belt that was properly adjusted and securely fastened.
As the plaintiff was driving south in the right lane, she described hearing a “....squeal of brakes and then a car just was in front of me” (at p.35). She was then asked:-
“Q.When you say a squeal of brakes, what do you mean.
A.A noise like a car makes when they’re doing a wheelie or they’re taking off from a stationary position.”
She put both feet on the brake but still hit the car. The plaintiff expressly denied that, prior to the collision, there was any car ahead of her in her lane. She said the front left corner of her Commodore hit just behind the middle of the defendant’s Falcon on the driver’s side. In fact, the photographs show the defendant’s car was hit in the area of the driver’s side rear wheel. She was unable to say whether the squealing of tyres came from the car she hit. The airbag in the plaintiff’s car inflated and the cabin was filled with smoke and, fearing a fire, she quickly got the baby out and stood to the rear of her car. She was then asked (at p.37):-
“Q.How long after that if you are able to say did you have any conversation with the other driver.
A.A couple of minutes. He got out and was walking towards me and I very politely told him that I didn’t think what he’d done was right, and was crying and the baby was crying and he just said, ‘look, I’m really really sorry, I just didn’t see you’.”
She then used someone’s mobile telephone to ring her husband, but was too upset to talk to him and had really bad chest pains whereby she was struggling to breathe. A bystander explained what happened. Within about five minutes her husband and brother arrived. As they arrived an ambulance also arrived. The plaintiff was taken to nearby St. Andrew’s Hospital for treatment. One of the ambulance officers took two polaroid photographs of the plaintiff’s car in its position on Hutt Road after the accident (exhibit P1). As far as the plaintiff was aware, her car was not moved after the collision. The photographs show it to be virtually in the middle of the right lane at a slight angle towards the centre line. The photographs also show a number of fluid or liquid marks on the road surface. These are discussed below. The rear end of the defendant’s car was in her lane, it was at an angle with the front end in the lane for northbound traffic.
The plaintiff’s story was tested in cross-examination. The plaintiff confirmed (at pp.68-70) that, after turning into Hutt Road and moving into the right lane, that lane was clear ahead of her. She said she had a clear recollection of placing both feet on the brake but not swerving because the defendant’s car was too close. In fact, she said the whole incident was so quick that the brakes did not engage to slow her down (at pp.71, 72). She denied moving into the right lane within a short distance before the collision. She said there were cars parked on both sides of Hutt Road. Despite her distress she maintained that her recollection of her conversation with the defendant was correct.
The plaintiff also confirmed that, after the collision, there was a gap between the cars (at pp.73, 76) and that it was highly unlikely that anyone moved her car after the collision (that is, before the polaroid photographs were taken).
Leaving to one side circumstantial and expert evidence relevant to liability, which is discussed below, the plaintiff’s case rested mainly on her own evidence. She presented as a mature, intelligent, confident and safety-conscious person. Her account of the accident was quite straight-forward and remained unaffected in any material respect by the cross-examination.
Defendant’s account
The defendant was born on 16th June, 1981 and at the time of this accident was aged 18, almost 19 years. He had obtained his learner’s permit on or close to his 16th birthday. He obtained his probationary licence in December, 1997 and was due to get his full licence two or three months after the date of the accident. He grew up on a rural property outside Loxton in the Riverland and was experienced in driving cars and farm machinery from a young age. As at the date of trial, the defendant had recently completed a university course in marketing and sales. At the time of these events he was living in Clarence Park, just off the Goodwood Road area, and attending university.
On the day of the collision, he had travelled from where he was living into the city of Adelaide. He had his younger brother, Ben, with him. Ben was 15 years of age at the time. They, too, were on their way to the “Clipsal 500”. Their mother had bought them tickets. They regarded it as a special event and went every year. The defendant was driving his own Ford Sedan, a manual six-cylinder, that he described as his “pride and joy” (at p.204).
The defendant described how he proceeded through the city, possibly including Grenfell Street, looking for parks. He was looking for something around four hours because “....we were going to leave at lunchtime anyway to shift it or take the car home or whatever” (at p.178). He said they went down past the hospital on South Terrace (presumably St. Andrew’s Hospital), could not find any parks, and then turned around and drove towards Hutt Street/Hutt Road intersection. He also stopped at that intersection, was also the first in line and also turned left into Hutt Road to travel south.
The defendant said that once he turned left there was little traffic on his side of the road. He saw that there were cars parked on both sides of the road. He said there were probably more cars parked on the left side of the road but that the parking time on the left side was shorter. There were still vacant spaces on the right or western side. The defendant then said this (at p.180):-
“A.....So when I was sitting at the lights, we noticed there was a longer parking period on the other side, so we decided that that would probably be a better place to park as well, as I think it was probably shadier as well.”
The defendant said that after he turned left, into the left lane, and then “....pretty much indicated and went straight into the right hand side lane and started travelling approximately anywhere between 30 maximum 50 Ks an hour down the length of Hutt Road until about halfway down” (at p.181). He was then travelling south in the lane closest to the centre of the road. The defendant then described how “....we decided to turn around there so we can park on the other side of the road. So I stopped and had the right hand indicator on....there was lots of traffic heading the other way....” (at p.181). In that stationary position he had his car on full lock waiting for the northbound traffic to clear so that he could safely do a U-turn (at p.182). He checked his rear vision mirror and there was nothing coming from behind. As for the period of time he was waiting in that position, the defendant said “anywhere in between 10 to 30 seconds, maybe more” (at p.182).
Having waited, the defendant started to proceed to do a U-turn, creeping forward at about five kilometres per hour and, when the car was half-way through its turn, the plaintiff’s car collided with his car. The defendant said he was upset because he had not done anything wrong.
As for the positions of the cars after the accident, the defendant said (at p.186):-
“A.Mine was further back past the lady’s car, now heading towards the city; it was like it was in the other right-hand side lane and hers was still in the direction it was heading.”
There was a gap of a couple of metres between them. He described the police and an ambulance attending.
Later, the defendant was asked by the police to move his car because it was blocking the lane nearest to the centre of the road for cars travelling north towards South Terrace. The defendant re-started the motor and drove it to a park on the western side of Hutt Road. It was eventually towed away because of damage to the rear suspension. The plaintiff’s Commodore was also taken away by a tow truck.
In cross-examination, the defendant said that they were not trying to get there for the start of the events and that there was nothing they really wanted to see until after lunch, namely, the first qualifying session. There was a second qualifying session later in the afternoon that they were also keen to see (at pp.192-193). The defendant then denied that he was looking for a park for about four hours because he might leave at lunchtime (at p.193). This is contrary to what he had said earlier (at p.178). It is a topic generally relevant to his credibility as to whether they were in a hurry to be at the race-track for the start of proceedings and the duration of a parking spot for which he was looking.
The defendant confirmed that, when he was stationary at the lights on South Terrace, waiting to turn left, he could see there were more parks on the western side of Hutt Road and that they were for a longer period (at pp.195-196). After further questioning, the defendant suggested that he made the decision when sitting at the traffic lights to park on the west side because parks on the west side allowed longer parking than the parks on the east side (at p.196).
The defendant’s evidence was very confusing as to why he decided to park on the western side of Hutt Road. Were the parks for a longer period of time? Were there more parks? The defendant seemed to eventually concede that, as he was driving south on Hutt Road looking for a park, he came to realise that he could park for a longer period on the western side and, for that reason, did a U-turn. Then the defendant was undecided as to whether that was the reason for the turn (at p.198-199). The defendant said he decided to do the U-turn when there was a break in the traffic going north and that he was going to be able to do it easily. The defendant denied the suggestion that, while he was in the left lane going south, he spotted a car park on the western side and that prompted a sudden U-turn from the left lane (at p.202).
Earlier in the trial, a former police officer, Mr C.C. Strudwick, who was in the Adelaide Traffic Division at the time, gave evidence of a conversation with the defendant at the scene. Mr Strudwick said this (at p.17):-
“Q.What did he tell you about the circumstances of the accident.
A.He said he’d been driving the white Ford sedan in a southerly direction along Hutt Road nearest to the left-hand side of the road but to the right of parked cars that lined the eastern kerb of Hutt Road. He indicated that he was looking to attend the Clipsal 500 proceedings that day and was looking for a park and indicated that in fact the parks along that side of the road were four hourly and that he was going to stay longer and was looking for a park where he could leave his vehicle longer. He said he then did a U turn to travel north when the collision occurred.”
Mr Strudwick also said that the defendant also said that he, the defendant, may have been stopped in the middle of the road for some time prior to the collision.
The defendant did not recall saying to anyone that he was driving along what was, in effect, the middle lane looking for a car-park (at p.206). The defendant also did not recall saying to anyone that there was parking on one side for four hours but that they were looking for a park whereby they could stay longer (at p.206). The defendant felt confident that he did not apologise to the plaintiff or say “I just didn’t see you.”
Finally, the defendant said that, at the time of impact, he was not at right angles across the road, rather something between 45 and 90 degrees (at p.209).
It is convenient at this stage to deal with the defendant’s brother’s evidence. Ben Watts had travelled to Adelaide the previous day. He was aged 15 years at that time and was not all that familiar with Adelaide. After leaving his brother’s place that Friday morning, they were driving around looking for a park somewhere close to the race. He described turning left into a road where the accident happened. That must have been Hutt Road. As a measure of the extent to which Ben Watts was paying attention to where they were going, he did not think the left turn (as he believed it to be) was at an intersection controlled by traffic lights. Ben Watts does not claim to have been paying a great deal of attention to what was happening. Despite what he said, he had his head buried in a programme of the day’s events. He remembers his brother switching to the right lane, that is, to the lane closest to the centre of the road. His brother travelled along that road for a while, then stopped, waiting for on-coming traffic to pass before doing a U-turn. His brother waited about five seconds, started to drive off to turn, when the plaintiff’s car hit. Ben Watts confirmed that, after the accident, his brother’s car was in the lane nearest to the centre of the road for cars travelling north and the car itself was facing north. Ben Watts admitted in cross-examination that his memory of the events leading up to the accident were not all that clear (at p.218). However, he maintained that his brother had moved to the lane closest to the centre line well prior to the collision.
The evidence of the defendant I found to be most unsatisfactory. He was certainly performing a U-turn or something close to it, but the real question is from what position on the road and was it a sudden manoeuvre. The defendant was clearly looking for a park. A park on the left or eastern side of the road was the obvious choice because he was travelling in that direction. It is clear that he became conscious of the fact that parks on the western side were for a longer period, or at least he believed that to be the case, and therefore would suit him better. Initially, he claimed he could see that from his position at the lights on South Terrace. As he later acknowledged, obviously he couldn’t see that far. However, in my view, that became obvious to him as he drove south along Hutt Road in the centre lane, being the lane next to the parked cars on the eastern side. I find that the defendant told Constable Strudwick (as he then was) as much when he spoke to him on the day of the accident.
I also find that the defendant made certain admissions to the plaintiff at the scene, particularly that he did not see her. The evidence of the defendant’s brother is of very little assistance because his brother was simply not paying attention.
Remaining evidence - circumstantial and expert evidence
The views already expressed should not be regarded as concluded assessments because they are not based on all the evidence.
There were no marks on the road surface such as tyre or gouge marks to assist with braking, swerving and point of impact. Similarly, there was no debris on the road that could assist with the point of impact.
The polaroid photographs referred to above (part exhibit P1) as having been taken by an ambulance officer just before the plaintiff was taken to hospital show a number of fluid marks on the road surface. Those marks are in two general areas and apparently commence from different points under the car. As much as it is possible to tell from those photographs, the colour and consistency of the marks in those areas appear to be different. The photographs and oral evidence are the only depictions of the scene on that day. The accident was not so serious as to warrant detailed police examination. Later, the scene and the photographs were used by Mr Hall and Mr Aust to endeavour to assist with the accident dynamics.
Mr Strudwick, the former police officer to whom reference has already been made, attended the scene of the accident and parked his police car behind Mrs Morrow’s Commodore. Mrs Morrow’s car remained in that position until it was towed away. Mr Watts’ car he described being “....at an angle across the road facing in a westerly direction taking up some of the right southbound lane and some of the right northbound lane of Hutt Road” (at p.16). He said the Falcon was pushed to the western side of the road out of the way.

Concerning the marks on the road in front of the Commodore, Mr Strudwick said he believed it was differential oil from the Ford, Mr Watts’ car. In fact, he placed absorbent material on the road to soak it up to make the road safe. He confirmed that later (at pp.19-20) saying that it was certainly oil “....it was reasonably clear that it was coming from the diff of the Ford when we moved the Ford from its accident position to out of the way on the side of the road.” He also said there was coolant coming from the Commodore. He also acknowledged that the fluids on the road surface may have been transmission fluid or power steering fluid. However, a little later in evidence (at p.24) he said he saw fluid coming from Watts’ Ford and he made the assessment, based on nature and consistency, that the fluid already to be seen on the road surface came from the Ford.
On the topic of the fluid on the road, Mr McGavin, the plaintiff’s brother, who had earlier been dropped by the plaintiff to attend the race events, said the fluid was from the Ford. He saw oil under the Ford where it was parked and there was a trail of oil on the road from where the Ford had been post-accident to the position where it was parked (at pp.95-96, 99).
Mr Hall, called on behalf of the plaintiff, said the damage to the Ford, the right hand rear wheel being where the impact was, could have been transmitted directly through the back axle to the differential housing. The housing could fracture and, if it was large enough, oil could issue out immediately (at p.145). The repair account supported that view. Mr Hall also said the oil marks on the road, whatever they are, are inconsistent with having come from the Commodore and the Commodore being pushed backwards.
Having regard to the damage patterns of the two vehicles, the Falcon was either stationary or at a very low speed at the time of collision. Mr Hall said (at p.148):-
“Q.So the damage is nevertheless consistent with the Falcon having come across from the left lane and the angle of impact being such that the Commodore forced the Falcon forward in its direction of travel to some extent.
A.Yes.”
He explained that “forward” for the Ford meant that you had to have regard to the fact that it was angled across the road. He said that they would not have ended up so close if the Ford wad travelling other than at low speed.
Mr Hall refuted the suggestions, emanating from Mr Aust, that the deposits on the road under the Commodore were coolant or an oil from the air-conditioning system. He also refuted the suggestion that the collision occurred over the centre line.
Mr Hall rejected the defendant’s account of how the collision occurred unless the rest position of the Commodore, as shown in the photographs, is not correct. If the Commodore had been moved a significant amount prior to the taking of the photographs, the defendant’s account is possible, although that would mean that the Commodore would be partly on the wrong side of the road at the time of the collision.
Mr Aust was called by the defendant. Some of his views have already been touched upon. Mr Aust is of the view that the deposits on the road surface are automatic transmission fluid. He suggested that the probability is that a leak in the circuit taking oil from the transmission to the oil cooler left those deposits on the road. On his theory, the pattern of the deposits suggests that the Commodore was pushed back to its position shown in the photographs, but after the accident. If that was the case, so his evidence went, then that is consistent with the defendant’s account. As Mr Aust acknowledged, much of his theory about how the collision occurred is irrelevant if the Commodore was not pushed back to the position shown in the photographs. In his view, those deposits were not differential oil (see pp.231-233). Importantly, the oil cooler and pipes were removed and replaced, but not repaired or replacement parts installed. That indicates they were not damaged and thereby undermines, if not eliminates, the theory that the fluid on the road surface was transmission or oil cooler fluid.
In the main, I find the evidence of Mr Hall and Mr Aust to be inconclusive. In saying that, I am not being critical of them. Neither attended the scene on the day with the cars in their post-accident positions, nor examined the vehicles themselves or the road surface. They were presented with very meagre material. It is not surprising that they were unable to be definitive. The compelling evidence is to be found in the oral evidence of the plaintiff.
Findings - liability
I make the following findings:-
1.Shortly before the collision the plaintiff and defendant were both driving south along Hutt Road, Adelaide.
2.Having turned into Hutt Road from South Terrace, the plaintiff was travelling initially in the left traffic lane before changing lanes into the right traffic lane, being the lane closest to the unbroken centre line.
3.The defendant also turned into Hutt Road from South Terrace and travelled south in the left traffic lane, there being a parking lane to the left of that lane.
4.The plaintiff was travelling at about 50 kilometres per hour until about half-way between South Terrace and Greenhill Road.
5.The defendant remained in the left traffic lane and was travelling at a lower speed than the plaintiff while looking for a suitable park.
6.At about half-way along Hutt Road, the defendant believed that the parking offered on the western side of Hutt Road was longer than that along the eastern side and that there were parks available on the western side.
7.The defendant then suddenly and without warning commenced to execute a U-turn.
8.The plaintiff had no time to react to that manoeuvre other than to quickly apply the brakes, but that had little or no effect prior to the collision.
9.The plaintiff, at the time of impact, was travelling within the right traffic lane.
10.The defendant was angled across the plaintiff’s lane as part of the U-turn.
11.The front left corner of the plaintiff’s Commodore collided with the defendant’s Ford against the driver’s side rear wheel.
12.On balance, I find that the Commodore was not pushed back to the position shown in the photographs.
13.The defendant was crossing an unbroken single white line and was therefore performing an illegal manoeuvre (see Australian Road Rules, exhibit P11, that came into force on 30th December, 1999 by virtue of an amendment to the Road Traffic Act).
14.The defendant admitted to Constable Strudwick that he was driving in the left lane (adjacent to the parked cars) looking for a parking spot, that he wanted to leave his car for more than four hours and was looking for a spot where he could leave it longer, and that he did a U-turn to travel in the opposite direction.
15.The plaintiff was in no way responsible for the collision; the defendant was completely responsible for the collision.
There will be judgment in favour of the plaintiff on the question of liability whereby the plaintiff bears no responsibility for the cause of the collision.
Aftermath of the accident on 7th April, 2000
I find the following facts.
Following the collision, the plaintiff was taken to St. Andrew’s Hospital where she remained for about three and a half hours. She had X-rays of her chest and hip and an ECG because she was experiencing pains in the chest. She was not given any medication. Upon leaving the hospital she was sore in the thumbs, hip, neck and chest.
The next day she obtained only mild painkillers from her general practitioner, Dr Dean, because she was breast-feeding. On that occasion she was worse than the previous day. Her neck was extremely stiff and she could not turn it, and her lower back and hip were sore. Overnight she had a headache that was so bad it made her physically ill. Anti-nausea drugs were prescribed. She wore a collar for three to four weeks, taking it off at night.
For about three weeks her injuries were too painful for physiotherapy. Once that started it took the form of an ultrasound and heat packs, then to hydrotherapy, rehabilitation gym work and therapeutic massages. All forms of treatment assisted in the relief of pain. The plaintiff later sought physiotherapy on a needs basis. Initially, the physiotherapist had requested her to come back at set appointment times.
Concerning work around the house, for the first couple of weeks the plaintiff was unable to do anything. Meal preparation, cleaning and washing were done by the plaintiff’s husband and her mother. Either of those two would bath the baby. Bending and lifting were difficult so the plaintiff could not lift her baby in and out of his cot or the car. She had pain in her neck and lower back. Prior to the collision the plaintiff used a cleaning lady for three hours a fortnight at $10.00 per hour, but after the collision the cleaning lady worked those same hours on a weekly basis. Prior to the collision the plaintiff did a lot of gardening work; lawns were mowed by her husband and an elder son.
During the first month after the collision the plaintiff’s mother assisted for four or five hours per day, her husband about two hours per night. During the second month after the collision the plaintiff returned to work, part-time as before, for two days per week. Much of her work was computer work and desk work, leaving her sore in the neck and lower back and with bad headaches that made her quite nauseous. However, that initial return to work lasted for six weeks and the plaintiff needed to take four weeks off. At the conclusion of that four weeks her work was brought home to her so that she could spread the load over the whole week, although it still required six hours per week at work to key in data. She would not have been able to perform any of that work without the benefit of physiotherapy treatment.
The plaintiff resigned her employment in November, 2000 at the end of her maternity leave. She did that on the advice of her general practitioner because, not only could she not cope with full-time work, she was not coping with the two days she was doing. I accept that, had it not been for the subject collision, the plaintiff would have been working full-time as of November, 2000.
In the second month after the accident the plaintiff was able to perform some work around the house whereby help from her mother and husband combined was down to four hours per day. Until able to drive again, the plaintiff’s mother drove her to most of her physiotherapy treatments. Her mother was needed to help with the shopping.
Up until the date of trial the plaintiff is still unable to do the bulk of the housework. The cleaning lady has reverted to once per fortnight and her husband does about six hours of work per week which the plaintiff would normally have done. There were also some child care expenses to give the plaintiff’s parents some respite. The plaintiff also attended the Ashford Pain Clinic and, as part of that treatment, had two lots of injections into the left shoulder and in the neck.
The plaintiff resumed employment in August, 2001 at the suggestion of her general practitioner. The work was for two days per week for a total of ten hours. That work leaves her very stiff and sore. I accept that then, and at the time of trial, the plaintiff was simply unable to work full-time. I accept she is not physically able to work longer hours.
A little needs to be said about the plaintiff’s employment before the collision and opportunities since that time. The plaintiff has been very industrious since leaving school. She has worked in a variety of positions both here and interstate. She worked at the Highway Inn for nine years up until about 1989, doing reception work and bookkeeping. After the birth of her first child she resumed work in November, 1991. Initially she worked for a labour hire company and then Weeks & Macklin, eventually being promoted to office manager. In September, 1996 she took up a full-time position with the Arkaba Hotel group. Eventually, the plaintiff was in charge of all of the account paying and accounts receivable and payable, as well as the wages. Her salary at that time was $33,500 per annum gross.
The plaintiff took maternity leave from that position in November, 1999 and a son was born in December, 1999, being the son with the plaintiff at the time of the collision. The plaintiff intended to return to work on a part-time basis in 2000 and did so in February, working about twelve hours spread over two days. It was her intention to increase her hours to the point where she was working full-time no later than November, 2000. As at that time her full-time salary would have been between $33,000 and $35,000.
As at 7th April, 2000, being the date of the collision, the plaintiff had been back at work for about two months and was working the equivalent of two days per week. A substantial part of her work involved using a computer and/or desk work. No earlier car accidents were affecting her physically as at the time of the subject collision.
From the time the plaintiff resumed work in about August, 2001, until trial, her average weekly income has been about $135.00 before tax.
There are a number of positions which the plaintiff was well-qualified to obtain since the collision. In mid-2000 the full-time position of office manager at the Arkaba Hotel became available. The plaintiff believes she would have obtained that position. The salary was about $47,000. The plaintiff was simply not in a position then or now to perform full-time work. Another position was offered to her by a company that installs computer software. It was eventually to be full-time employment, but again the plaintiff could not take it up because of the nature of the work and the hours involved.
Medical evidence
As mentioned, the plaintiff called her general practitioner, Dr Anne Dean, and orthopaedic surgeon, Mr Hoare.
Dr Dean told me that Mrs Morrow had been to see her concerning her injuries in the subject collision on about twelve occasions. On the first occasion, the 8th April, 2000, Dr Dean was seriously concerned as to whether the plaintiff could cope with the rigours of looking after a young baby. The doctor said this:-
“A.She was distressed by pain. She had a bilateral frontal headache. She had very little movement of her cervical spine. She had painful lower back muscles. She had a bruise over one hip; the right hip. She had tenderness of the sternum but no apparent bruising. And she had told me that the night before she’d actually been in that much pain that she’d been vomiting and slept very poorly.”
Dr Dean confirmed that she saw the plaintiff on 19th May, 2000, the plaintiff having returned to work about two weeks after the accident. On 19th May, the plaintiff was experiencing considerable pain and was very limited in the range of her neck and back movements. Dr Dean gave her a sickness certificate for four weeks to 16th June. The plaintiff’s work difficulties were consistent with the nature of the injuries sustained.
Although Dr Dean did not advise the plaintiff to resign her part-time position in late 2000, it is clear that the doctor advised the plaintiff that the nature of the work she was then performing was not conducive to an improvement in her cervical spine pain. In May, 2001, she advised the plaintiff to return to work when she was able to sit.
Dr Dean arranged for the plaintiff to undertake physiotherapy and hydrotherapy treatment. That treatment was found to be helpful and relieved her symptoms in part. She was unable to do without it. Dr Dean accepted as a reasonable proposition that without the various forms of physical therapy it was doubtful that the plaintiff would be able to continue her part-time work.
Dr Dean also gave this evidence:-
“Q.She’s also told us that whilst she has on occasion tried to work more than two days even working two days causes her an increase in her symptoms and a worsening of her condition such that she does require treatment and that she does not think she can work more than two days on an ongoing basis and certainly couldn’t work full-time. Does that accord with your own assessment of her.
A.Yes. We have had that discussion in the past and I would say that that is exactly what she has told me also.
Q.Does it accord with your own assessment.
A.Yes.
Q.In terms of her current condition is it your view that she because of her injuries will have difficulty in the heavier aspects of gardening.
A.Yes.
Q.Such things as scrubbing out baths, vacuuming, hanging washing out and the like.
A.Yes. We have had this conversation and she does find difficulty with all of those areas of activities of daily life.
Q.Again is that description of her difficulties consistent with the nature of the injuries she has suffered and your assessment of them.
A.Yes.”
Dr Dean knows the plaintiff on a personal basis as well. She found the plaintiff to be a “....very enthusiastic, active young woman....”, a marked contrast to her presentation since the collision.
I have had regard to Dr Dean’s report dated 23rd May, 2000, part of exhibit P3.
Dr Dean said in evidence (T.128) that she was not surprised that, two years after the accident, the plaintiff is still experiencing difficulties and that stabilisation and recovery for these types of injuries take between eighteen months and three years.
There were three reports of Mr Hoare tendered as part of exhibit P3, 11th May, 2000, 18th December, 2000 and 25th July, 2001. I have had regard to these in conjunction with his oral evidence. In evidence Mr Hoare explained the nature of the injury sustained in the collision:-
“Q.....Are you able to tell us the nature of the damage or injury sustained in such an accident.
A.In some part, yes. She would have been subject to quite a severe deceleration force, because the impact was not anticipated by her. The vehicle which she struck was travelling at an angle to her, almost across her path. She ran into its right rear section, which means that apart from a fore and aft deceleration force, there would have been a rotational factor as well. Her head would have been propelled violently forward whilst her trunk was partially restrained by her seatbelt, and this occasions damage by over-stretching or even tearing of the fibres of ligaments and muscles supporting the head and mainly in the neck. Some of those fibres can be turn and if so, they are not replaced by fresh muscle fibres, but their position is taken over by scar tissue which is non-elastic, and which tends to shorten in time and thus provides some degree of chronicity to the discomfort.
Q.Would that discomfort or pain manifest itself as I’ve said, during the course of firstly, work sitting at a keyboard.
A.Yes, any position where the head is either held still or certainly in a forward position on the trunk, would aggravate symptoms from such an injury and indeed, I think she was breast feeding to my memory at the time, and that activity particularly would also aggravate symptoms.”
I agree with his observation that she was “an intelligent positive sort of person” (T.104). Dr Williams, to whom the plaintiff was sent by the defendant’s solicitors, says in his report of 20th April, 2001, exhibit D13, that the plaintiff was adopting a positive attitude towards recovery. Concerning her return to work, then performing work at home on a part-time basis but eventually resigning following advice from her general practitioner, Mr Hoare thought that was reasonable because the plaintiff simply could not cope. Mr Hoare also said that he accepted as reasonable that she could not work more hours than she is currently. I also accept that position.

Mr Hoare accepted, as do I, that the regime of physical therapy undertaken by the plaintiff was reasonable. In my view the therapy was not excessive. I also note from the report of Mr Spence, psychologist, Ashford Private Pain Clinic, dated 17th August, 2001, that:-
“It is envisaged that she should continue with her current regime of physiotherapy, hydrotherapy and exercises (at the gym and at home) for the next several months.”
Mr Hoare acknowledged in cross-examination that, since 5th July, 2001 when he last saw the plaintiff, in the time from then to trial, her earlier inability to do full-time work may have improved given the physical therapy regime. Mr Hoare also conceded that, by proper management of the workplace, the plaintiff’s capacity for work would possibly be increased (T.112-3).
As to the plaintiff’s prognosis, Mr Hoare gave this evidence:-
“Q.Your conclusion to the report was that you believed it would be wise to defer any final prognosis until later in the year.
A.Yes, that’s what I said.
Q.Was that because you were anticipating a continued improvement.
A.Yes.
Q.Would you anticipate the continued improvement in the future to be better than the improvement you saw between December 2000 and July 2001.
A.I would expect there to be slow improvement over time and I really think that’s all that can be said and one can’t put a date to the termination of all symptoms because symptoms vary from individual to individual.
RE-EXAMINATION BY MR SOULIO
Q.You were asked whether you would expect this slow progress of improvement. Might it also be the case that at some point Mrs Morrow reaches a stage where she is left with a permanent residual disability and no further improvement.
A.Yes, that can occur and it can certainly occur if for whatever reason there is any sudden exacerbation of pain in normal daily living.”
Findings - Medical to date of trial
1.The plaintiff sustained a very significant neck injury that was “....manifest in recurring headaches and pain and stiffness of the neck with radiation into the shoulders and into the shoulder blade areas of the upper back” (report of Mr Hoare, 11th May, 2000, exhibit P3 at p.5);
2.Although there has been a significant improvement in her injuries since her initial diagnosis, her injuries have not yet stabilised and a final prognosis is not yet able to be given;
3.The various forms of physical therapy and medical treatment undertaken by the plaintiff were appropriate and reasonable;
4.It was reasonable for the plaintiff to return to work only on a part-time basis;
5.It was reasonable for the plaintiff to take four weeks off from late May to late June, 2000;
6.It was reasonable for the plaintiff to resign her employment in November, 2000;
7.But for the subject collision, the plaintiff intended to resume work on a part-time basis, gradually increasing her hours to a point when she would have been working full-time by November, 2000;
8.The plaintiff resumed employment on a part-time basis in August, 2001, being reasonable as to the time of resumption and the part-time basis;
9.It was reasonable for the plaintiff to continue on that part-time basis up to the time of trial;
10.The plaintiff has no greater capacity for paid employment than that she was working as at the time of trial.
Past economic loss
The plaintiff is entitled to recover any net loss of earnings caused by the collision. It is necessary to establish her pre-collision earning capacity and earnings, and then calculate the resultant losses of income to trial. In my view, there is no basis on the evidence to make any allowance for negative contingencies:-
1.The plaintiff was due to return from maternity leave on 20th November, 2000. The subject collision was on 7th April, 2000. Following the collision the plaintiff had two initial periods when she was off work, that is, two weeks immediately after the collision and four weeks in May/June, 2000. The plaintiff contends for a net weekly wage during those periods of $164.00 and I am prepared to proceed on that basis (see exhibit P5, p.59). Those two initial periods result in a net loss of $984.00 (6 weeks @ $164 net).
2.From early 2000 to 20th November, 2000 the plaintiff was proposing to gradually increase her hours had she not been incapacitated in this collision. From 19th June to 20th November, 2000 the plaintiff contends for a position whereby, had the plaintiff not been injured, she would have increased her net weekly earnings by one-third. I am prepared to proceed on that basis also. That period represents 22 weeks. The plaintiff was proposing to increase her net earnings by $82 per week. The net loss of earnings for this period is $5,412.
3.After her return from maternity leave on 20th November, 2000, the plaintiff was proposing to be back working full-time. At the commencement of her maternity leave the plaintiff had an annual salary of $33,500 (T.61). Later she said that, as of November, 2000, her full-time salary would have been between $33,000 and $35,000 (T.62-3). For my purposes I propose to proceed on the basis of an annual salary of $34,000 from 20th November to the commencement of the trial on Monday, 8th April, 2002, that is, 72 weeks.
Taxable income  $34,000
Tax   6,580
Net per annum  $27,420
Net per week     $527
72 weeks @ $527 = $37,944, less earnings in
2001/2002 of about $3,727 = $34,212
Total net loss of earnings for all three periods
$40,613, but less first week = $40,449.
Interest
The plaintiff is entitled to interest on the past component of economic loss (s.39 of the District Court Act, 1991). The period of the calculation should be from the time when the liability to compensate arose, discounting only for the slow accumulation of the loss over the period of two years. I have decided to calculate interest simply to the date of trial. Interest on economic loss between this interim assessment and a final assessment can be left for a separate occasion.
The appropriate interest rate is 6.5 per cent being the approximate average of the commercial rates prevailing since 7th April, 2000 (see Third Schedule, Supreme Court Rules). Accordingly, the calculation ($40,449 x 6.5% x 2 years ÷ by 2) results in an allowance for interest of $2,629.00.
Past gratuitous services/voluntary assistance
This heading of loss, insofar as it relates to gratuitous services, is circumscribed by s.35A(1)(g), (h) and (2) of the Wrongs Act, 1936 (as amended).
I am satisfied that the rendering of household help in this case by both the plaintiff’s mother and her husband has saved the cost of engaging another person to provide those services. The need for those services has been brought about by the negligence of the defendant.
The relevant principles are dealt with in two High Court cases, Van Gervan v Fenton (1992) 175 CLR 327 and Grincelis v House (2000) 201 CLR 321. In Grincelis, the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) summarised the effect of Van Gervan v Fenton (at 327):-
“In Van Gervan v Fenton (1992) 175 CLR 327, it was held that the true basis of a claim for damages with respect to care or services provided gratuitously to a person who has suffered personal injury is the need of the plaintiff for those services, not the actual financial loss suffered as a result of their provision. Accordingly, it was held in that case that a plaintiff’s damages on this account are not to be determined by reference to the actual cost to the plaintiff of having the care or services provided, or by reference to the income foregone by the provider of the services, but, generally, by reference to the market cost of providing them. Neither party sought to reopen the decision in Van Gervan.”
In my view, the “....objective value of the services which the plaintiff reasonably needs” (Van Gervan v Fenton at 337) will be met by an award of damages based on the market value of using outside domestic assistance.
The plaintiff tendered a document detailing the cost of domestic assistance from an organisation known as “Dial-an-Angel” (exhibit P4). That document reveals two methods of costing domestic assistance. One is where the client pays the worker direct (comparable to a private contractual agreement), the other is where Dial-an-Angel is contracted by a “third party” to supply the care. Quite what is meant by a “third party” is uncertain, but certainly that is a much more expensive method of providing outside domestic assistance. In this case the first method seems the more appropriate of the two. The plaintiff is an intelligent, resourceful person who has worked in office managerial positions and I see no reason in her case why she could not pay the worker direct if that situation arose; she would have control of the damages awarded. The award will be calculated on that assumption.
I accept the plaintiff’s evidence in this regard and calculate past gratuitous services in this manner, that is, in the first month on a daily basis of $36 for the first three hours (minimum) and $12 per hour after that, and $12 per hour after the first month to end 2001:-
1.First month after the collision (T.46 and T.48)
Plaintiff’s mother - 5 hours per day.
Plaintiff’s husband - 2 hours per day (at night).
Total of 7 hours per day - $36 + $48 ($12 x 4 hours) = $84 per day.
Assume 31 days @ $84 per day = $2,604.
2.Second month after the collision (T.50)
Plaintiff’s mother and husband - 4 hours per day in total = $48 per day.
Assume 31 days @ $48 per day = $1,488.
3.Balance of first six month period (T.53)
Plaintiff’s mother and husband - 4 hours per day in total = $48 per day.
Assume 31 days x 2 and 30 days x 2 = 122 days.
122 days x $48 per day = $5,856.
4.Period September, 2000 to end June, 2001 (42 weeks - 8/9/2000 to 30/6/2001) (T.52, T.54)
This calculation is made on a weekly basis:-
•       six hours per week for mother’s assistance during three appointments per week;
•       one further hour per week for mother’s assistance in the afternoon;
•       two hours per week for mother’s shopping;
•       seven hours per week for husband’s assistance;
=      20 hours per week
=      $240 per week (20 x $12 per hour)
42 weeks @ $240 per week = $10,080
5.Period June, 2001 to end December, 2001
Assistance by husband for two hours per day
14 hours @ $12 per hour = $168 per week
$168 per week for 26 weeks = $4,368
6.Beginning January, 2002 to 8th April, 2002 (T.53)
$13 hourly rate
This calculation is also made on a weekly basis
Husband’s assistance of six hours per week
Six hours per week = $78 per week
14 weeks @ $78 per week = $1,092
In total, an allowance in the award for gratuitous services of $25,488 will be made.
Interest on past gratuitous services
There is no evidence that the plaintiff has or intends to pay her husband or her mother for the gratuitous services for which there has been a substantial allowance. In those circumstances it would seem inappropriate to award any interest. However, s.39 of the District Court Act dictates that the Court will include a component for interest “unless good reason is shown to the contrary”.
A statutory provision materially comparable to that which applies in this State came before the High Court for consideration in Grincelis v House (supra). The Court held (by majority) that interest should be allowed on a claim for damages for past care or services provided gratuitously to a person who has suffered personal injury. Further, the Court held that the statutory provision did not warrant declining to award interest where, as here, damages have been assessed by reference to costs prevailing from time to time during the period between the cause of action accruing and judgment.
For these reasons, in this case, the award attracts interest on an ordinary commercial basis at the rate set out in the Third Schedule of the Supreme Court Rules. The calculation ($25,488 x 6.5% x 2 years ÷ by 2) results in an allowance of $1,657. The loss accumulated over a period of time since April, 2000, and hence I have divided the amount by two.
Special damages - past medical expenses
By consent, I was provided with a Schedule of Special Damages (exhibit P10). In accordance with my earlier findings, the plaintiff is entitled to all items in the schedule at the charge made by the provider. An amount of $2,021.75 has yet to be paid and will be included in the award. The plaintiff has paid $6,723.37 out of her own pocket. This amount is now due to be repaid and attracts interest.
In accordance with s.39(3) of the District Court Act, I award her lump sum interest of $400 for monies outlaid over time for the various items of special damages paid by her and I allow the sum of $10,118.45 for past medical expenses.
Conclusion
Liability
There will be judgment for the plaintiff without any reduction for contributory negligence on her part.
Quantum
Economic loss - loss of earnings
         Past  $40,449.00
         Interest   2,629.00
Gratuitous services
         Past  $25,488.00
         Interest   1,657.00
Special damages
         Past  $10,118.45
         Interest        400.00
  $80,741.45
Accordingly, there will be judgment for the plaintiff against the defendant in the sum of $80,741.45, inclusive of interest.
I will hear the parties as to costs.

[2002] SADC 104

1 August 2002