Rachel Louise Tenbosch v Helen Myers
[2012] NSWDC 38
•04 April 2012
District Court
New South Wales
Medium Neutral Citation: Rachel Louise Tenbosch v Helen Myers [2012] NSWDC 38 Hearing dates: 5 March 2012 Decision date: 04 April 2012 Before: Judge M Sidis Decision: 1.Verdict for the defendant.
2.The plaintiff is to pay the defendant's costs of the proceedings.
3.The exhibits are returned.
4.My reasons are published.
Catchwords: MOTOR VEHICLE ACCIDENT: Ankle injury to pedestrian - whether plaintiff stationary at time of injury or walking into side of defendant's vehicle - biomechanical engineering evidence concerning nature of injury - contributory negligence - economic loss - requirement for domestic care Legislation Cited: Motor Accidents Compensation Act 1999 Category: Principal judgment Parties: Rachael Louise Tenbosch (Plaintiff)
Helen Myers (Defendant)Representation: Mr Sergi (For the Plaintiff)
Mr Cummings (For the Defendant)
Carroll & O'Dea Lawyers (For the Plaintiff)
Moray & Agnew (For the Defendant)
File Number(s): 2011/23903
Judgment
The plaintiff suffered injury on 6 March 2009 when struck by the vehicle driven by the defendant in Harrison Street, Cardiff. She fractured her right ankle.
She claimed that her injury was the result of the defendant's negligence.
The issues were:
1whether there was negligence on the part of the defendant;
2whether there was contributory negligence on the part of the plaintiff;
3the extent to which the plaintiff was to be compensated for loss of income earning capacity, domestic care and out of pocket expenses.
The circumstances of the accident
The plaintiff's mother drove her to Harrison Street, Cardiff at about 4 pm on 6 March 2009. She parked on the western side, close to the intersection with Thomas Street. The plaintiff left the car and crossed Harrison Street to purchase items from a pharmacy on the eastern side of the street.
On leaving the pharmacy the plaintiff walked between two cars that were parked parallel to the kerb intending to cross back to the western side of Harrison Street.
The defendant drove south in Harrison Street in her dark blue Holden Barina motor vehicle.
The defendant's car came into contact with the plaintiff. The impact caused a fracture to the plaintiff's right ankle and caused her to fall to the ground.
The plaintiff claimed that the defendant ran over her right foot. The defendant claimed that the plaintiff walked into her car.
Liability
The weather at the time of the accident was reported to be fine.
The plaintiff said that when she left the pharmacy she walked between the two parked cars and moved into what she described as the safety zone, that is, an area not further than one metre beyond the parked cars. She said she stopped there in a stance that involved placing her right foot forward of her body, projecting her left hip and placing her weight on her left foot. The plaintiff said, because she was tall, it was her custom to adopt this stance to give the impression that she was shorter. It was her custom to move from this stance by transferring her weight to her right foot.
She said that she looked to her right and noted that the road was clear. She had a clear view to her right from where she was standing. She did not remember what she saw but remembered nothing that presented a danger. She said she intended to look to her right again before crossing the road but that she did not have the opportunity to do so.
The plaintiff said she looked to her left towards the intersection with Thomas Street. She heard the noise of screeching tyres and saw a white utility turning right into Harrison Street and passing in front of her. She turned a little more to her left as she watched the utility pass her mother's parked car and reach the front of the position where she was standing.
Her next memory was that she was sitting on the ground clutching her right ankle. At that point she was seated between three cars, the two that were parked at the kerb and the defendant's car that was directly in front of her. She was positioned close to the door handle on the front passenger door of the defendant's car.
The defendant was 59 years old at the time of the accident and was a driver of many years experience. She had no prior history of traffic infringements of significance. She said she was familiar with the area in which she was driving. She was aware that it was a busy pedestrian area where the speed limit was 40 kph and that it was common for pedestrians to cross Harrison Street outside the pedestrian crossing.
The defendant was driving south in Harrison Street. She stopped at the pedestrian crossing that was about 20 metres north of where the plaintiff was positioned. She saw the plaintiff standing between two cars in front of the pharmacy. She said she had a clear view of the plaintiff. She thought the plaintiff was waiting for her to pass.
She said she drove forward slowly and that she was still in first gear when the plaintiff walked into the side of her car. She said she did not see the plaintiff move from her initial position until she saw her walking towards the side of the car from the corner of her eye. She heard the noise of the contact. She stopped immediately and came to rest a very short distance from the point of impact. She went to assist the plaintiff who was sitting on the ground. She said the plaintiff told her:
I didn't see you. I was looking the other way.
She agreed that the plaintiff was sitting beside the handle of the front passenger door.
There was no damage to the defendant's car although the passenger side external rear vision mirror was pushed forward towards the car.
The defendant denied seeing a white utility in the area or hearing the sound of screeching tyres.
The defendant agreed that she did not sound her horn, brake or swerve. She agreed that she could have moved one metre to her right towards the centre line of Harrison Street. She agreed that she could have done any of these things but claimed that she had already passed the plaintiff when she moved towards the car.
The plaintiff's mother was sitting in her car. She saw the plaintiff waiting between the parked cars. She looked away and when she next looked up she saw people coming from the pharmacy but she could no longer see the plaintiff. She ran across the road to where the plaintiff was sitting. The plaintiff told her the defendant's car ran over her foot.
The plaintiff's mother agreed that the plaintiff probably told her what happened but she did not remember what she said.
Ms Hazleton was employed at the pharmacy at the time of the accident. She said in response to a noise she went into Harrison Street and saw the plaintiff sitting on the ground between two cars in front of the shop.
She heard a woman who came from a car on the opposite side of Harrison Street ask the plaintiff what happened. The plaintiff replied:
I didn't look I just walked straight out.
...
I was looking at a car screeching around the corner and didn't look to my right.
Ms Hazleton said she was 100% sure that she heard this conversation. She also said that the rear vision mirror of the defendant's car was broken and hanging from its mounting. She was as sure that this was the condition of the mirror as she was of her recollection of the terms of the conversation between the plaintiff and her mother.
The expert evidence
The plaintiff relied on the reports of Mr Schnerring and Mr Beck of Jamieson Foley Consulting Forensic Engineers.
Mr Schnerring noted that the plaintiff was 177 cm tall and was clearly visible above the cars parked in Harrison Street. He accepted that it was unlikely that a driver would take evasive action in response to seeing a pedestrian walking across the footpath.
He said that a pedestrian who emerged from behind the windscreen of a parked car would be considered to be conspicuous and a driver
... could reasonably be expected to respond to the pedestrian, if the pedestrian was moving into the roadway.
...
Alternatively if the pedestrian was standing on the roadway about a metre past the line of parked cars, then a driver would be expected to observe the pedestrian and respond.
Mr Schnerring estimated the speed of travel of the plaintiff and the defendant's car as the basis for the calculation of perception times available to the defendant. He concluded that, if the plaintiff remained static on the side of the road in the path of the vehicle, the defendant had adequate time to perceive and react to the need to brake and bring the car to a halt before impact or to swerve to avoid impact.
If the plaintiff walked into the side of the defendant's car, Mr Schnerring concluded that it was unlikely that there would have been sufficient time to avoid impact.
In deciding which scenario was most likely, Mr Schnerring was influenced by the absence of damage to the defendant's car. He said this indicated that it was most likely that the plaintiff was stationary with her right foot extended and that the car ran over her foot. He said that, had the plaintiff walked into the side of the car, he would expect injuries to other parts of her body, such as her knee or chest as she extended over the roof of the car and some minor damage to the car.
In reaching these conclusions, Mr Schnerring deferred to the opinion of an appropriately qualified biomechanical engineer.
Mr Beck was a biomechanical engineer. In his initial report he accepted that the plaintiff's foot was run over. He rejected the probability that she walked into the defendant's car because of the absence of evidence of injury to any part of the plaintiff's body other than her right foot and the absence of evidence of damage to the car. He said that, if the plaintiff was walking, forward momentum would continue and most likely result in further contact with her right knee and upper body or head as she was propelled over the bonnet of the car or into contact with the A-pillar of the car or its windscreen.
Having reviewed the report prepared by Mr Griffiths, biomechanical and mechanical engineer, Mr Beck agreed with him that:
1the injury to the plaintiff's ankle resulted in the fracture of two, not three bones of her foot, being the lateral and medial malleoli;
2these fractures were the typical result of twisting motion, a mechanism of sideswipe collisions causing rotation around the weight bearing foot, so that it was likely that contact with the defendant's car caused the plaintiff to twist;
3the injuries to the plaintiff's left knee and hand were most likely caused when she fell to the ground;
4the right knee injury could have been the result of contact with the car, the load placed on the knee as the plaintiff twisted or the fall to the ground, it being noted that the ambulance report stated that the plaintiff was knocked onto her knees.
Mr Beck did not agree that these factors were conclusive of the proposition that the plaintiff was not stationary at the time of the accident. He maintained that, had she been walking, she would have been propelled over the bonnet or into the side of the car with injury to her upper body.
In his evidence to the court Mr Beck also accepted that it was likely that at the time of impact the plaintiff's weight was on her right leg and that it was possible for a pedestrian to walk into a car at the position of the exterior rear vision mirror without sustaining head or upper body injury or damaging the car.
Mr Griffiths agreed with Mr Schnerring's assessments of speed and perception times and with the conclusions reached on the basis of those assessments.
Mr Griffiths described (Exhibit 1) the mechanism of the plaintiff's injury as follows:
Fractures of the malleoli are most commonly reported as resulting from sporting style injuries where there has been a twisting mechanism. The upper body and the upper leg is twisted with respect to the foot, this applies force on the ligaments attached to the malleoli, and the ligament pulls so hard on the malleolus that there is a small local fracture.
He concluded that the plaintiff's injury was the result of contact between her upper body with the defendant's car, probably partly with the protruding left side exterior rear view mirror. This caused the plaintiff's upper torso to twist in an anti-clockwise direction and applied loads to her weight bearing right ankle.
He agreed with Mr Beck that, if the plaintiff walked towards to the car, there would have been some forward momentum. He disagreed that this momentum would necessarily involve impact with and injury to the plaintiff's upper body. He accepted the possibility that the right knee injury was the result of the fall to the ground. He noted, however, that the plaintiff suffered abrasions to her left knee and left wrist. He thought they were probably the result of the plaintiff's fall to the road after being pushed in that direction by the contact between the plaintiff's upper body and the rear view mirror. The absence of any similar grazing injury to the right knee persuaded Mr Griffiths that the injury to that knee was consistent with impact with the side of the car.
Mr Griffiths said he ruled out absolutely the hypothesis that the plaintiff was standing with her weight on her left leg in the manner that she described. He said that, if the weight were on the left leg, different twisting forces would have resulted with a different mechanism of injury. His conclusion that the weight was on the right leg was supported by the nature of the injury itself and the deflection of the rear view mirror that indicated to him that the plaintiff's upper torso was erect and sufficiently close to come into contact with the mirror.
It was clear that the plaintiff was wrong in her understanding that the defendant drove over her right foot and that at the time of impact she was static with her right foot extended and with her weight on her left foot.
The biomechanical engineers agreed the injury to the plaintiff's right foot was the necessary result of her weight having been on this foot at the time of impact.
It followed in my view that the plaintiff moved from her static position and stepped forward into the side of the defendant's car. I find that she did this at the time she was distracted by watching the white utility turning the corner from Thomas Street.
There was no suggestion that the defendant was driving at an excessive speed or in any other way in a manner that was irresponsible. The remaining question therefore was whether she ought to have anticipated that the plaintiff intended to move forward.
In deciding this question I took into account:
1The defendant's evidence that the plaintiff was clearly visible to her and that she was stationary between two parked cars.
2The agreed fact that the passenger side external rear vision mirror was pushed rearwards. I accepted that this was the point of impact between the plaintiff and the defendant's vehicle.
3The agreement between the biomechanical engineers that the plaintiff's body weight was on her right foot at the time of impact.
These factors were sufficient to persuade me that the plaintiff walked into the defendant's car at a point when it was not reasonable to expect that the defendant should anticipate that movement and when it was not possible for her to drive so as to avoid impact.
I appreciated that there was no injury to the plaintiff's upper body as might ordinarily be expected in the circumstances of a side swipe collision and that there was more than one rational explanation for the complaint of pain in the right knee.
However, the three factors that I listed were of such significance that they lead inevitably to the conclusion that I have reached that the plaintiff's injury was not the result of negligence on the part of the defendant.
I proceeded to deal with the remaining issues in the event that this matter was taken further.
Contributory Negligence
The plaintiff agreed that she was aware that there was a pedestrian crossing 20 metres to the north of where she was standing. She was familiar with Harrison Street and knew that it was busy. She agreed that she elected to take a short cut to where her mother was located in a parked car on the other side of Harrison Street.
The defendant argued that the accident would have been avoided had the plaintiff used the pedestrian crossing.
The defendant agreed that it was common for pedestrians to walk in Harrison Street outside the boundaries of the pedestrian crossing. I noted that the speed limit was 40 kph in apparent recognition of the interaction between pedestrian and vehicle.
In the circumstances, I did not accept that there was contributory negligence on the part of the plaintiff in electing not to use the pedestrian crossing.
DAMAGE
The plaintiff did not qualify for an award of non economic loss. She claimed compensation for lost income earning capacity, out of pocket expenses past and future and for future domestic care at commercial rates. The plaintiff complained of considerable ongoing pain and discomfort in support of these claims. She also claimed that a pre-existing depressive condition was aggravated by the consequences of the accident to the point where it was necessary to increase the dosage of her anti-depressant medication.
As a result of the accident, two screws were used to fix the fracture of the medial malleolus. The plaintiff was discharged on crutches that she used for two to three months. She wore a supportive boot for two months. She said her foot remained swollen, tender and uncomfortable with use.
The only orthopaedic evidence on which the plaintiff relied was that of Dr Ghabrial who related the plaintiff's complaints of ongoing pain and restriction to post traumatic osteoarthritis and referred to an x-ray showing a 1 mm cartilage interval. The x-ray was not produced or identified. The plaintiff was provided with the opportunity to clarify this situation but was not able to do so.
Dr Harvey saw only one x-ray of the plaintiff's ankle that was taken seven weeks after the accident. It showed no evidence of post traumatic osteoarthritis. Dr Harvey said it would not be anticipated that fractures of the type suffered by the plaintiff would result in arthritic change.
Dr Graham examined the plaintiff in April 2010 and reported that there were no functional restrictions at that date although the plaintiff complained of aching in the ankle at times. He reported that the plaintiff suffered a minor and uncomplicated fracture of the ankle that was treated appropriately and from which the plaintiff made a standard recovery. He expected full resolution of her symptoms to take some further time.
The restrictions in movement reported by Dr Ghabrial on examination of the plaintiff in October 2010 were not evident when Dr Harvey examined her in May 2011. In Dr Harvey's opinion the fracture was completely healed and was unlikely to cause the plaintiff further problems. In a further report of August 2011 Dr Harvey rejected the suggestions of Dr Ghabrial and others that the plaintiff required further treatment. He said she suffered a common injury and that her prognosis was excellent. He said patients who suffered fractures of the type experienced by the plaintiff rarely had significant sequelae when treated appropriately as had occurred in this case.
A number of the medical experts remarked upon the effect that the plaintiff's mental health had on her response to her injury. They recorded the plaintiff's anxiety that she might re-injure the ankle if she engaged in significant activity and her concerns about presence of the screws.
Dr Lewin examined the plaintiff in July 2011. He noted that the plaintiff's mental health problems commenced following the death of her father in 2004 and that until that event she had been progressing well at school.
Dr Lewin said there was clear evidence of an enduring psychiatric disturbance in the period prior to the accident with longstanding symptoms of anxiety and avoidance. He diagnosed this condition as a Generalised Anxiety Disorder. He said that after the accident there was evidence of a Depressive Reaction that had remitted and of a pain syndrome.
He accepted that the plaintiff required ongoing anti-depressant medication to treat the Anxiety Disorder and for prophylactic purposes with regard to the Depressive Reaction.
Having reviewed the medical evidence I concluded that:
1Without x-ray evidence to support Dr Ghabrial's opinion that there was post traumatic osteoarthritis, I should prefer the opinions of Dr Graham and Dr Harvey that the plaintiff had recovered from the fractures suffered on 6 March 2009 with minimal ongoing physical consequences or restriction.
2It was probable that the symptoms that the plaintiff continued to report were the product of the Generalised Anxiety Disorder from which she suffered prior to the accident. I accepted that this reaction affected the plaintiff's attitude to her capacity for physical activity.
3The plaintiff suffered a Depressive Reaction to the accident and injury that had remitted.
Loss of income earning capacity
The plaintiff was 18 years old at the time of the accident. She is now 21. She left school in 2005 without completing Year 10. After a number of attempts she completed Year 10 studies at TAFE in 2011.
At the time of the accident she was employed by the Newcastle University Union in a casual position in food and bar work. This involved the serving food and drink and operating the cash register. It was the first time since leaving school that she secured employment. She worked one or two shifts before the accident.
She attempted to return to work in May 2009 with the same duties as prior to the accident. The plaintiff said her foot became swollen and she was unable to carry trays of glasses because she had balance difficulties. The shifts that she worked were longer than four hours.
The plaintiff agreed that her position was casual and that she was not guaranteed continued employment. It was suggested to the plaintiff that she ceased work for reasons other than disability resulting from the ankle injury, including the failure to turn up for one of her shifts. No evidence was provided to support these propositions
Having completed Year 10, the plaintiff said she was planning to undertake further studies at TAFE. She was uncertain what form those studies might take. She said she had delivered resumes in her attempts to find employment without success. She was intending to obtain clerical or other sedentary work for which she had no experience at this stage.
Dr Grant and Dr Harvey were of the opinion that there were no physical constraints on the plaintiff's income earning capacity. They were both satisfied that she could return to the work that she was performing prior to the accident.
Dr Harvey said that the plaintiff's chronic depressive disorder was significantly disabling to her educational and vocational prospects. Dr Lewin found no psychiatric impairment to the plaintiff's income earning capacity. Both Ms Miller, physiotherapist, and Ms Walker, occupational therapist, referred to the need to address the plaintiff's psychological and emotional concerns.
I considered it established that the plaintiff's mental health was affecting her attitude to her injured ankle and that it impeded her ability to secure employment.
This situation was a consequence of the accident and not merely of the pre-existing Anxiety Disorder.
I was satisfied therefore that the accident affected the plaintiff's income earning capacity. I did not accept that it affected that capacity to the extent claimed.
Past income loss was claimed on the basis of $100 net per week. This was the average of the amount that she earned to 9 August 2009 when she ceased employment. This claim overlooked the non-existent pre-accident employment history. The plaintiff was unemployed for about four years prior to obtaining her position at the University. Further, this was a casual position with no guarantee of ongoing employment.
Taking account of these factors, I assessed her past income loss at one half of the amount claimed in the sum of $6,700 and her past superannuation loss at $603.
The plaintiff claimed a lump sum of $75,000 as a buffer against future income losses. I did not reject entirely the submission that a lump sum assessment of future income loss was appropriate. I considered that, if the plaintiff was appropriately treated, her attitude to her ankle injury would improve and her symptoms would resolve to the point where she was unrestricted in her employment prospects by that injury. As a consequence I considered a lump sum of $35,000, inclusive of superannuation, would be adequate.
Domestic care
The plaintiff acknowledged that the level care provided in the past on a voluntary basis was insufficient to meet the threshold provided for in s 128 of the Motor Accidents Compensation Act 1999.
She claimed that in the future she required three hours of assistance per week at commercial rates amounting to $88 per week.
This claim was based on the report of Ms Walker who assessed the plaintiff's needs at one hour of assistance per week with domestic care, one hour per week for yard maintenance and the provision of an online shopping and grocery service.
Dr Ghabrial agreed with this assessment. Dr Graham and Dr Harvey thought that the plaintiff needed no assistance in the performance of domestic tasks. Dr Lewin said the plaintiff was not psychologically disabled from performing domestic tasks.
There were a number of reasons why I rejected this part of the plaintiff's claim. I have already noted that I preferred the opinions of Dr Graham and Dr Harvey to those of Dr Ghabrial. Ms Walker in her assessment was clearly influenced by Dr Ghabrial's opinion that the plaintiff suffered from post traumatic osteoarthritis.
The plaintiff's evidence was that she did not prior to the accident undertake yard work and that she was not required to do so after the accident.
Finally, I was not satisfied that the plaintiff had the need for or the intention to acquire assistance from a commercial provider of domestic services.
Out of pocket expenses
Although the plaintiff claimed for the cost of analgesic medication, she said she preferred to use marihuana for pain relief and to help her to sleep. She said painkilling medication did not provide relief to the same extent as marihuana. She denied that the use of this drug affected her motivation. The claim for analgesia was therefore rejected.
The plaintiff also claimed that her need for anti-depressant medication increased after the accident. She agreed in cross examination that the dose that she received after the accident was prescribed prior to the accident and did not increase thereafter. The claim for anti-depressant medication was therefore rejected.
The plaintiff did not press the claim for anti-inflammatory medication.
I accepted that there was a need for pain management, including as it necessarily would, treatment of the plaintiff's psychological problems, and allowed $6,875 for the cost of this treatment. I also accepted that assistance with transport was required to facilitate the plaintiff's access to a pain management program and I allowed the sum proposed by Ms Walker of $1,545.
I did not accept that, in addition to this program, the plaintiff required physiotherapy or hydrotherapy.
Miss Miller recommended the provision of a number of aids to provide the plaintiff with relief from discomfort. I accepted that items such as arthritis cream, heat wrap and body pillow would be of assistance to the plaintiff for a short term period until the benefits of the pain management program took effect. I allowed $1,000 for these items.
I allowed the estimate of $1,000 for past out of pocket expenses.
ORDERS
Verdict for the defendant.
The plaintiff is to pay the defendant's costs of the proceedings.
The exhibits are returned.
My reasons are published.
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Decision last updated: 20 April 2012
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