Rayner v Gray - [1990] TASSC 134

Serial No B57/1990
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Rayner v Gray [1990] TASSC 134; B57/1990

PARTIES:  RAYNER
  v
  GRAY

FILE NO/S:  1188/1986
DELIVERED ON:  26 September 1990
JUDGMENT OF:  Wright J

Judgment Number: B57/1990
Number of paragraphs: 62

Serial No B57/1990
List "B"
File No 1188/1986

RAYNER v GRAY

REASONS FOR JUDGMENT WRIGHT J

26 September 1990

A GENERAL

The plaintiff, Madelene Jane Rayner, a single woman now aged 36 years, sues the defendant Alan Gray for damages for injuries caused to her on 10 March 1984. On that day the plaintiff was driving her Ford Escort van registered number BA 7244 down Rennie Street, West Hobart towards the junction of that street with Shannuk Drive. Shannuk Drive is a steep suburban street running off, and forming an extension of Knocklofty Terrace, West Hobart. The two streets become one on a sharp, left hand corner for traffic proceeding uphill. On the corner on the left hand or southern side there is a high bank with a concrete retaining wall which prevents intervisibility between vehicles travelling up and down Shannuk DriveKnocklofty Terrace until they are only a short distance apart. On the uphill side of the corner, Rennie Street is a short steep road forming a "T" junction at an oblique angle of about 75^o to Shannuk Drive. It enters on the southern side of Shannuk Drive and it has a bitumen surface. With these configurations in mind it will be appreciated that the Rennie Street junction is a very dangerous one because of the lack of intervisibility between vehicles proceeding up Shannuk Drive and those seeking to drive down Rennie Street into Knocklofty Terrace and thence, via Poet's Road towards the city. About 50 metres on the city side of the junction there is a diamond shaped sign saying "vehicles entering" and below it a small rectangular sign saying "50 metres". This is plainly intended to give traffic proceeding from Knocklofty Terrace into Shannuk Drive warning of the hazardous junction ahead. On the day that I inspected the scene in company with counsel, the sign was obscured from my view as I drove past by a van which was parked adjacent to the kerb in that area, but if there was no such impediment as this the sign should be visible to a reasonably alert driver.

B LIABILITY

On the day in question, the plaintiff was driving down Rennie Street towards the junction. The defendant, who was accompanied by his fiance, was driving her Chrysler Galant sedan up Knocklofty Terrace and round the corner into Shannuk Drive. He was unfamiliar with the area and was on his way to the Explorer Motor Inn at the top of Shannuk Drive to make arrangements for their wedding reception. At the time the plaintiff lived in Knocklofty Terrace and she was very familiar with the area. She was aware of the danger from vehicles proceeding from the city up Shannuk Drive and she was aware of the need for particular caution at the junction. Her case is that she drove down Rennie Street and came to a halt at the junction. She was stationary with the front of her vehicle protruding only about one foot into the junction itself. While she was in that stationary position, the defendant's vehicle came around the corner from Knocklofty Terrace and instead of making the slight deviation necessary to avoid her stationary vehicle, he continued straight on and hit the front of her car a glancing blow. She said that after alighting from her vehicle and speaking to the defendant he said, "I didn't see you I was getting a bug off the windscreen". She said that his female passenger later said in the presence of her landlady, "we were getting a bug off the windscreen" or "out of the car".

The defendant, on the other hand, says that the collision occurred only because the plaintiff failed to yield right of way to his vehicle and entered Shannuk Drive from Rennie Street without stopping. He denies that he was distracted from his driving by a bug or insect in the vehicle and he was supported in this denial by his wife.

Accordingly, there is a very substantial conflict in the evidence and important issues of credit will have to be considered in resolving that conflict. The resolution of disputed facts is made considerably more difficult than usual because the trial did not take place until more than 6 years after the accident had occurred. Police were not called to the scene of the accident and on any version of events, at least one and possibly both vehicles, were moved very soon after the collision had taken place. No measurements were taken to pinpoint the relative positions of each vehicle. There was no evidence to suggest that anyone had made contemporaneous notes of relevant events or conversations. Although there was some evidence as to the position of debris from the accident there was no evidence of skid or scuff marks caused by either vehicle. These omissions are scarcely surprising as the collision was a very minor one and none of the occupants of either vehicle was conscious of having suffered personal injury at the time. Indeed, the plaintiff was not even aware of having sustained any trauma to her body until about one hour later whilst she was visiting her aunt. Furthermore, as the defendant pointed out, when he and the plaintiff exchanged personal particulars at the scene, it became obvious that both vehicles were insured by the same insurance company and consequently, there was no reason to anticipate litigation for the recovery of property damage. Add to this circumstance the fact that the plaintiff did not institute these proceedings until 12 September 1986 – some 2½ years after the collision – and it becomes almost self evident that memories for fine detail will be severely and adversely affected. This became very apparent during the course of the trial from the evidence of the defendant and his wife and also from that of Mr David George Johnstone and his son Leigh David Johnstone. However, it is not a case where a lack of precision on one side entitles me to prefer and act upon the more detailed and specific evidence on the other. In my opinion, the Johnstones were plainly independent witnesses and what they said tended to support important features of the defence case. Furthermore, the defendant and his wife impressed me as honest witnesses, despite the minor differences between them and the lack of particularity in their testimony.

The plaintiff's case relied heavily on the proposition that the Galant vehicle driven by the defendant came to rest adjacent to the kerb and a white guide post just below Mr Johnstone senior's driveway entrance, and it was plain from her evidence that she claimed that the defendant's vehicle became stationary in this position immediately after the collision. This was not a feature upon which she was likely to have been mistaken because she claimed that she went straight to the vehicle and angrily upbraided the other driver for his discourteous behaviour before going back to her place of residence to tell her friend and landlady, Mrs Medhurst, of the mishap. However, the evidence of the Messrs Johnstone, coupled with that of Mr and Mrs Gray, convinces me that immediately after the collision, the defendant's vehicle was stalled with its driving side wheels near, on or even over the centre line of Shannuk Drive. The centre line is a distance of about 11 feet 6 inches out from the kerb. I am also satisfied that the defendant's vehicle was moved to the kerb by the combined efforts of the defendant and the Johnstones very soon after the collision because Mr Gray was experiencing considerable difficulty in moving it away from the somewhat dangerous position in which it had come to rest. He made a number of efforts to start the vehicle but because he had it in the wrong gear, it kept stalling on the uphill slope. For this reason it was pushed to the kerb by manual force.

I am far from satisfied that either the defendant or his wife stated to the plaintiff or Mrs Medhurst that there had been an insect or bug within the car which was causing the driver to be distracted at the relevant time. This was the only positive evidence in the case to suggest that the defendant was not keeping a proper lookout as he approached the Rennie Street junction. In the absence of my acceptance of this explanation for the unusual course which his vehicle is claimed by the plaintiff to have taken in colliding with her motor van, it is difficult for me to accept that he was not watching where he was going or that his vehicle took the course which the plaintiff claimed.

At the time of the accident the plaintiff had lived for about three years at 24 Knocklofty Terrace, West Hobart which is a property owned by Mrs Marie Medhurst, situated two houses from the corner of the junction between Shannuk Drive and Rennie Street. At the relevant time the plaintiff was the owner of a brightly coloured Ford Escort van which was kept in a laneway at the rear of Mrs Medhurst's home. This laneway had access to Rennie Street. The plaintiff said that she was familiar with the junction and realised that it was "very dangerous". As a consequence, it was her practice to drive down Rennie Street towards the junction in first gear and to stop at the junction with the window of her vehicle wound down to both look and listen for the approach of traffic from around the corner to her right. The high concrete wall on this corner is only about 25 metres east of the Rennie Street junction and effectively blocks any view of traffic approaching from the right. The plaintiff said that at approximately 3.30pm on 10 March 1984, she intended visiting her aunt, Miss Rosalie Parkes at 19 Corby Avenue, West Hobart. She drove her vehicle from the laneway at the back of Mrs Medhurst's home and down towards the junction in first gear. Her speed was approximately 10 kilometres per hour. She stopped approximately one foot behind a seam which is visible in the surface of the bitumen roadway which forms a virtually straight line between the kerb alignment on the western side of Rennie Street and that on the eastern side. She then looked both ways on two occasions and neither seeing nor hearing any approaching traffic, after an interval of a few seconds she commenced to enter upon the junction. As she did so, she saw a vehicle coming around the blind corner already referred to. She said "it seemed to be travelling at the same average type of speed that all vehicles do around there, approximately 50 kilometres per hour". She said that she brought her own vehicle to a halt with its front protruding about one foot beyond the kerb line which I have already described. She said the other vehicle was almost hugging the kerb and he clipped the right hand side of her car. He then came to rest near a guide post in a normal parked position near the kerb on the western side of the junction.

She inspected the front of her vehicle shortly after alighting from it and she noticed that there was glass and debris in front of her car. She said that a headlight and two fog lights were smashed. She said the left hand headlight was not damaged but the front of the car was squashed back in some way towards the rear of the vehicle. She said that the other vehicle had damage consisting of a scratch from the front to the back on the driving side. She approached the driver of the other vehicle in an angry frame of mind and said to him, "when I saw your car I stopped it's a pity you couldn't have given me the same consideration". He then replied, "I'm sorry I didn't see you I was getting a bug off the windscreen". She then walked down to the front gate of Mrs Medhurst's home and called out to her to come down. She told Mrs Medhurst that there had been an accident and Mrs Medhurst walked up to the scene of the accident with her. She said that when this occurred, Mrs Medhurst went over to where the defendant and his female passenger were and said to them, "what on earth were you doing?" to which the female passenger replied, "we didn't see her he was getting a bug off the windscreen at the time."

Under cross–examination the plaintiff agreed that she had arranged to pick up a lady to take to her mother's place from her aunt's home at approximately 3.30pm that day. She also agreed that the accident could have occurred a couple of minutes after 3.30pm. She denied that she had left the scene of the accident to speak to Mrs Medhurst before she had spoken to the occupants of the other vehicle. She also disagreed with the proposition that the defendant's vehicle had been pushed into the kerb after the accident had taken place. She denied that the defendant's passenger had alighted from the vehicle by getting out of the driver's door as the passenger side door of the vehicle was jammed shut. She said she had no recollection of Mr Johnstone and his son coming to the scene of the collision from their nearby home. She was asked:

"Is it possible from your recollection of what happened at that accident on that day that somebody came out of that house and pushed the car from the roadway to the position where you say it came to rest after the collision?"

Her answer was, "No." She said she could not remember anything like that happening at all. Pressed further, she said, "It could not have happened." She also denied that she had run down the road away from the scene of the collision without speaking to the occupants of the other vehicle.

Mrs Medhurst gave evidence which was interesting for a number of reasons. She told me that the plaintiff had a phobic dread of spiders and that before driving her van she would always ask Mrs Medhurst or someone else to check the vehicle to see that there were no spiders inside it. Mrs Medhurst said that she had actually performed this ritual on the day of the accident immediately before the plaintiff drove out of the laneway. On the face of it this evidence was of little relevance but having regard to the alleged explanation by the defendant and his passenger that there was a bug of some sort in their vehicle which distracted him from his driving, it may have significance. It could in fact be the source of the explanation which she and Mrs Medhurst attributed to the defendant, but which he denied.

Mrs Medhurst said that after the plaintiff left in her vehicle, she was in the backyard and heard a thud. The next thing she knew the plaintiff was calling to her from the front of the house. She went down to the front entrance and the plaintiff explained that there had been an accident. Oddly enough, Mrs Medhurst said that she did not ask the plaintiff for details or ask her to explain how the accident had occurred. She went with the plaintiff to the junction. She said that she did not see the Johnstones there immediately after the accident (although she saw Mr Johnstone senior there sometime afterwards and helped him clear the debris from the road) and she certainly did not see them push the defendant's vehicle into the kerb. She saw the plaintiff's van in Rennie Street with its front slightly over the kerb line of Shannuk Drive, "just a few inches over the kerb line", she said. She saw the defendant's vehicle alongside the guide post on the western corner with its wheels in the gutter and she noticed that there was glass and other debris near the front of the plaintiff's van and slightly to the left of it. She noticed some slight damage to the left hand side of the defendant's vehicle. She said:

"After having looked at both vehicles I said to the male driver 'what on earth were you doing', and the passenger, female passenger said that 'we were trying to get rid of an insect that we had inside the car' and she said 'it happened all so quickly'."

In cross–examination when asked about this sequence of events, Mrs Medhurst said:

"She" [the plaintiff] "said that she'd had an accident and I just followed her up the road. We didn't I can only just say that I said to her 'are you alright' and I could see that she was very shaken and I just followed Madelene up to the scene of where the vehicles were. ... She was just very white and shaken and said 'yeah, alright' and just walked. She didn't give me much indication at all at that stage".

She was then asked, "Did you ask her what had happened", and she replied, "No, I just was too busy wanting to get up to see what had happened for myself, I didn't ask Madelene what had happened at that stage." She was then asked, "Are you sure about that", and she replied, "I am fairly sure because it all happened very quickly and from the time of Madelene calling out and me getting down there and going to the scene, it was just a matter of moments or a few minutes." She said that the plaintiff called out to her about a minute after she had heard the thud.

To my mind it is very odd indeed that Mrs Medhurst should have acted in the way that she claims. I would have thought that in the absence of some explanation by the plaintiff as to how the accident occurred, she was in no position at all to form an opinion that the defendant was in the wrong simply from what she observed at the scene. Yet although she did not specifically accuse him of being at fault, this was the clear import of the question which she said she asked him as soon as she approached his vehicle. It was submitted that her evidence had a strong tendency to support the plaintiff's claim that the defendant had acknowledged that he had been distracted by an insect in the car. Whilst this is true, it is plain that Mrs Medhurst had a close and protective association with the plaintiff and she cannot be regarded as a completely independent witness.

In the face of the denials by the defendant and his wife that these conversations occurred, I am not prepared to accept the evidence of the plaintiff and Mrs Medhurst on this issue.

The defendant gave evidence that he was travelling with his fiance, the owner of the Galant car, which he was driving to the Explorer Motor Inn for the purpose of making arrangements for their impending wedding reception. He said that as he travelled up Knocklofty Terrace towards Rennie Street, the speed of the vehicle which he was driving was approximately 40 kilometres per hour. He was unfamiliar with the area, having only travelled that way once previously. He said that as he turned the corner he saw the plaintiff's vehicle coming down Rennie Street towards the junction. He slowed down and moved over towards the right hand side of the road. However, a collision occurred close to the centre line. He said at first that he believed that the collision had occurred in the eastern lane, that is on the wrong side of the road for his vehicle. Almost as soon as the collision had occurred, the plaintiff's vehicle reversed back into Rennie Street and the plaintiff got out of her van and without speaking jogged down the road towards the entrance to Mrs Medhurst's property. Immediately following the collision, the defendant tried to move his vehicle but it would not start and with the aid of Mr Johnstone and his son it was pushed into the kerb.

He freely admitted in cross–examination that he did not have a very good memory of the events. He was unable to recall seeing the "vehicles entering 50 metres" signs on the left hand side of the road as he approached the junction. Strangely enough he had not been back to the scene of the accident before giving evidence so his memory of relevant features at the scene had not been refreshed. He said also that he recalled his fiance yelling out a warning just prior to the collision occurring and at about the same time he himself began to take evasive action. He did not see any real danger in the way the plaintiff's vehicle was being driven when he first observed it and thought that by moving further to the right and slowing down, he could avoid any danger. He did not sound his horn. The plaintiff's car came to rest opposite the passenger side front door of his vehicle and it was from this position that she reversed her car back into Rennie Street.

In considering this description of events, it occurred to me that it may be inconsistent with the defendant's vehicle being pushed to a position adjacent to the guide post on the western side of the junction after the collision. Even allowing for the fact that it was moved there with the assistance of Mr Johnstone and his son, I thought it unlikely that even with this manpower the vehicle would have been pushed approximately one car length up the hill from the mouth of the junction. However, it was not suggested, and it was not claimed by any witness who was involved in that operation, that the vehicle was moved backward rather than forward. Indeed, the description given by Mr Johnstone junior clearly indicated that it was moved forward to some extent. In addition, it must be remembered that the plaintiff had made several attempts to move the car prior to its being moved by manual force and it is quite possible that in doing so, it was moved forward under its own power to some small extent. The defendant described the behaviour of the car at that time in the following terms:

"... as I tried to start the car and move away I think I had it in second or third gear, which on the slope made it, the car didn't have enough power to, you know, engine power to pull away in that gear so it kept kind of jumping and then stopping and stalling and I thought it was because we may have had something jammed and Mr Johnstone and his son came to push it and that's when I moved it back into neutral to push the car".

Counsel for the plaintiff submitted that it was inconsistent with the evidence of Mr Johnstone senior to find that the plaintiff's vehicle had reversed away had from the point of collision in the manner described by the defendant. It is plain that Mr Johnstone senior did not see the vehicle moving in this way and that he claimed to have looked down to the intersection to see what had happened almost immediately after he heard the sound of the collision. However, he did not claim to have seen the plaintiff at the scene of collision or to have seen her moving down towards Mrs Medhurst's residence. As I commented during the course of the trial, I would have the greatest difficulty placing any reliance upon any witness' assessment of relative time intervals after a period of six years and, having regard to the factors that I have just mentioned, I think it highly likely that Mr Johnstone senior did not have an opportunity to observe the vehicles for some short, but appreciable time after the accident. Mr Johnstone said that he heard the sound of a car skidding in gravel and the sound of an impact. When he looked to see what had happened he saw that two vehicles had collided at the intersection. He said that Mr Gray's car was virtually totally blocking the left hand side of the road. Its driving side wheels were virtually on the centre line on the middle of Shannuk Drive. The Escort was at the bottom of Rennie Street with its nose well into Shannuk Drive, at least a foot to two feet. That description of course is consistent with the plaintiff's case, but it is also consistent with the defence case bearing in mind the manoeuvre of the plaintiff's vehicle immediately after the collision as described by the defendant.

Mr Johnstone junior said that at the time of the collision he was working in his workshop at the rear of his father's garage. He heard a skidding on gravel and then a "minor bang". He looked out and saw the defendant's Galant vehicle approximately level with his driveway. He said it was around about the centre line of the road, maybe a little bit across it. He said that the defendant was unable to start his motor vehicle so he and his father assisted in pushing it into the kerb. He was asked about the existence of gravel at the junction of Rennie Street and Shannuk Drive and he said:

"There's always gravel there I couldn't give you any quantity I've never known the bottom of Rennie Street not to have some gravel there."

He said that the sound that he heard prior to the collision was of a "gentle skidding on gravel". He said that when he went to the vehicles he noted that the plaintiff's vehicle was:
"Further back up Rennie Street, when I say further back I don't mean backed right up Rennie Street, I mean out of the area where it could cause any further collisions."

He was asked, "Was the front of it into Knocklofty Terrace when you saw it". He replied, "No, I don't think it was." Asked, "Are you sure about that", he said, "No I'm not, that's why I said I don't think." He did not see Mrs Medhurst at the scene of the collision and he said that to the best of his knowledge, the sound of the collision which he heard occurred instantaneously after he heard the skidding. In this respect his evidence may be contrasted with that of his father who said that there was a slight gap or pause between the skidding and the thud. Nonetheless, on the evidence of both Mr Johnstones, I think it is the proper inference from the evidence, particularly as Mrs Medhurst herself confirmed that there is always a large quantity of gravel at the mouth of Rennie Street that what they heard was the plaintiff applying her brakes immediately before the collision occurred and precipitating a minor skidding in her vehicle. Although the defendant and his wife did not claim to have seen the vehicle skidding towards them, such a motion is not inconsistent with their evidence.

One aspect of Mr Johnstone junior's evidence which I find difficult to resolve is his claim that the defendant's vehicle was stationary opposite his father's drive when he first saw it. Without more, this evidence may be viewed as more consistent with the plaintiff's case than the defendant's but I think the other features of Mr Johnstone junior's evidence tend to outweigh this factor and that overall his evidence supports the defendant's case quite strongly.

Mrs Gray, the defendant's wife, gave evidence substantially confirmatory of that of her husband. In addition she said that her passenger side door was jammed shut as a result of the collision and she had to leave the vehicle through the driving side front door. She denied that she had any discussions with the plaintiff or Mrs Medhurst and she confirmed that the plaintiff's vehicle reversed away from the point of collision almost immediately after the collision had occurred. She also said that at the time of the collision their vehicle was out near the centre line of the road, virtually "on top of it".

I have discussed some of the major aspects of the evidence for the purpose of illustrating the difficulties in reaching a firm conclusion as to how this collision occurred. The plaintiff claimed in effect that she was stationary with the front of her car approximately a foot into the intersection when the defendant, failing to keep a proper lookout, rounded the corner and virtually drove straight into her car even though the collision itself was a glancing blow across the bonnet of her vehicle. The defendant's case is that the plaintiff came down Rennie Street, was unable to stop in time at the junction, and despite his swerving to the right hand side and slowing down, he was unable to avoid the collision which had essentially been caused by the plaintiff failing to give way to him before she entered upon the junction. The plaintiff has not satisfied me that her version of events is correct and with some reservations I think the defendant's version is, in substance, more probably true.

The evidence of Mr Ray Triffett established that a Galant vehicle of the type being driven by the defendant is 63 inches wide. As I have already mentioned, the left hand side of Shannuk Drive from the seam in the bitumen to the centre line is approximately 11 feet 6 inches. I find that the right hand side of the defendant's vehicle was on or very close to the centre line at the time the collision occurred. This means that the plaintiff's vehicle had entered onto the junction to the extent of approximately 6 feet 3 inches. Despite the existence of the "vehicles entering" warning sign fifty yards back down Knocklofty Terrace from the junction, the plaintiff had the primary obligation to give way to the defendant's vehicle. Not only was it a junction at which, pursuant to the Traffic Regulations, she was obliged to give way to his vehicle, he was also approaching from her right. It was and still is, a very dangerous junction and she was aware of this. A driver approaching from the plaintiff's position in Rennie Street has little chance of avoiding a collision with a car approaching from the same direction as the defendant once she has committed herself to the manoeuvre of entering upon the intersection. It is almost impossible for a driver in her position to anticipate an oncoming vehicle by sight alone. It is necessary to both look and listen and indeed, to do as the plaintiff claims she normally did, namely to stop and listen at the junction. On this occasion for some reason, she failed to do so, but comparatively slight though her negligence may have been, it was the major factor in causing this accident.

C CONTRIBUTORY NEGLIGENCE

I have considered carefully whether the defendant was guilty of contributory negligence. He was following a rather tortuous uphill route, with which he was not familiar, towards the Explorer Motor Inn. He says his speed was about 40 kilometres per hour, although the plaintiff suggested that it was higher than this. In my opinion, the defendant is probably correct, but even if the plaintiff's estimate is correct, his speed was no higher than that at which cars normally travel up that stretch of road. The plaintiff made it perfectly plain in the course of her evidence that she did not attribute the collision to the defendant's excessive speed. The question therefore remains whether he was keeping a proper lookout. He said that he saw the plaintiff's vehicle coming towards the junction and took evasive action when he realised she was not going to stop. He has no recollection of seeing the "vehicles entering" sign in Knocklofty Terrace. I have already been critical of the placement of that sign. However the defendant does not claim that there was any vehicle obstructing his view of that warning, indeed he says that he does not recall any vehicle being parked at the kerb in that general area. Although he cannot be blamed for the collision on the basis of speed alone, I think that if he had been going a little slower and had swerved more sharply to the right before the collision occurred, he may well have avoided it. As I have already mentioned the collision was a comparatively minor one, and only a slightly greater deviation to the right would have enabled the defendant to avoid the consequences of the plaintiff's bad driving. He did not claim and there was no evidence to suggest that there was any other traffic approaching from the direction of the Explorer Motor Inn. Furthermore, there were no houses on the northern side of Shannuk Drive from which a motor vehicle or a pedestrian may have emerged without warning.

In the circumstances I think it not unreasonable to hold him partly responsible for the collision. However in my view his share of responsibility was significantly less than the plaintiff's. In my opinion, contributory negligence should be apportioned as to 65% to the plaintiff and as to 35% to the defendant. (Compare Van Essen v Lee, No 97/71 and Downer v Bower, No 87/62).

I proceed to assess damages.

D INJURIES AND DISABILITIES

The plaintiff was a student at the Hobart Matriculation College until the end of 1971. She then obtained work as a kitchen hand/housemaid at the Matriculation Girls' Hostel where her mother was matron. She gave no specific evidence as to the duration of this employment but her next job was a sales assistant at a record bar at Eastlands where she worked on and off over a period of approximately 12 months. Thereafter she was unemployed for approximately 1 year and then in April 1978, she acquired a small mixed business in the Moonah area which she operated until February 1979. This was apparently fairly arduous work involving her in general shop keeping duties for a period of 12 hours a day, seven days per week. She sold this business when she found that increased competition from larger stores was making it unprofitable. She apparently spent the remainder of that year and the whole of 1980 looking for alternative employment.

In 1981 she secured a job as sales assistant at Fitzgeralds department store in Hobart working in the fashion department, but she found herself in disagreement with the management's sales policy and resigned from this employment. She continued to be unemployed thereafter for a period of approximately 18 months until September 1983 when she secured work at the Royal Hobart Hospital as a waitress. The duties associated with this employment were described by the plaintiff in some detail and were also specified in a document entitled "Dining Room Safety Rules" which was tendered in evidence. There is no need to detail the duties required of the plaintiff in that employment save to say that they entailed moving and cleaning heavy trolleys and other equipment on a regular basis. The plaintiff has not returned to that employment since her accident and it is plain from her own evidence and the medical evidence given by Dr Rosengarten and Mr Howard Bye that she is no longer capable of working in that capacity.

In 1986 the plaintiff undertook a course in business management at the Hobart Technical College under the auspices of the Commonwealth Rehabilitation Service. She did this with a view to gaining employment in middle management in some commercial organisation. As previously mentioned, she had had some experience in management of her own business and as a result of her past employment experiences she had developed an interest in retailing and management.

In about April 1989 the plaintiff secured employment in a part–time position as the accounts payable clerk at ACI Moonah and she also obtained work in a clerical managerial position, working originally 8 to 10 hours per week at Tasmanian Coffee Roasters. I will discuss the course of her employment with these two organisations when discussing her economic loss later in these reasons.

Prior to the accident the plaintiff played hockey competitively, she also enjoyed a social game of table tennis from time to time and during the summer months, she was quite actively involved in surfing. She also played 8 Ball and enjoyed bike riding. She said, "I enjoyed most sports I was an active person." Approximately once a fortnight she would attend a dance or discotheque and enjoyed dancing on these occasions. She has tried to play table tennis and 8 Ball since the accident but she is precluded from playing table tennis because of the severe pain generated in her injured knee and although she has played 8 Ball from time to time, it causes her substantial pain afterwards. She has difficulties with a number of household tasks and in particular finds climbing stairs difficult. She is restricted in lifting objects and is unable to squat on her haunches to do so.

The plaintiff's pre–accident hockey playing activities were the subject of a considerable body of evidence during the course of the trial for two reasons. Firstly, it was claimed that this was an activity that she greatly enjoyed and could no longer take part in following her injury. Secondly, it became clear that her involvement in this sport had caused injury to her right knee joint which had in effect predisposed it to injury in the accident, the subject of these proceedings and the somewhat unusual consequences and disabilities which flowed from that injury. The plaintiff commenced playing hockey in 1967 at Mt. Carmel College. She also played at the Hobart Matriculation College in 1971. In 1972 she started playing with the Sandy Bay Women's Hockey Club, but in 1973 she underwent a cholecystesctomy which resulted in her being unable to play for a period of approximately 6 months. In 1974 whilst playing hockey, she sustained a torn cartlege in the right knee and this was surgically removed by Mr VB Chen. In 1975 she sustained a second cartlege injury and a further operation was performed upon her right knee by Mr Chen. Thereafter she continued to experience painful symptoms in the knee and she also experienced some "slight locking" from time to time. As a consequence she consulted Mr PSH Browne who undertook a realignment of the kneecap in 1976.

The plaintiff says that following a 12 month recovery period thereafter she had no continuing symptoms in her knee and made a complete recovery, although she said that occasionally in really cold weather she had aching in the knee and she also found it difficult to kneel for an extended period of time without pain. She continued playing hockey with Sandy Bay but she said, "I was mainly listed as an emergency". She did however continue to attend training once a week and she undertook coaching of other players, particularly in the skills of goal keeping.

In cross–examination she agreed that she was precluded from playing hockey for the 5 year period from 1973 to 1977 inclusive and she also agreed that in 1978 because of the extended hours she was working in her business, and again thereafter during the periods that she was unemployed, she was not playing regularly in a competitive way as she was concerned that she may sustain an injury which would prevent her getting employment. The following matters were put to her:

"QYou see, let me put this to you squarely. You say that one of the big losses, because of the accident, from your point of view, is the loss of the ability to play sport.
AYes.
QYes when you had the opportunity to play hockey from the end of 1977 up to the date of the accident in 1984, you didn't really avail yourself of that opportunity to any extent, did you?
ANo but that was my choice."

She was also asked:

"QWell is it probably fair to say then that had you not had the accident you would have gone on as you were then and not played hockey anyway?
AOn the contrary once I was settled in a job as I seemed to be at the Royal at the time of the accident I was planning on returning to hockey possibly on a fulltime basis."

I think that the plaintiff was genuinely interested in playing hockey up until the time of the accident but she plainly did not involve herself in that sport at a fully competitive level. It was suggested by defence counsel that her evidence in this respect reflected adversely upon her credibility but I think the impression given in her evidence–in–chief resulted largely from the way in which the evidence was led from her, rather than from any mendacity on her part. I should also say that I generally accept her evidence as to the injuries that she sustained to the right knee and the comparatively small degree of disability that she was suffering therefrom prior to 10 March 1984.

The clinical findings of Mr Howard Bye, an orthopaedic surgeon who undertook an arthroscopy examination of the plaintiff's injured knee on 16 March 1984 at Calvary Hospital, tend to confirm that the plaintiff would not have been severely restricted in her mobility or general physical capacity prior to that time. However he did find evidence of chronic chondromalacia. The back of the right kneecap was very soft, worn and irregular. This, in his opinion, was a consequence of the earlier injuries to the knee which she had sustained in the 1970s. However, he also found that the medial compartment was normal and the cartlege rims in the lateral compartment were well healed and smooth. On the basis of these findings he expressed the opinion that although the chondromalacia was a potential source of future trouble, it was not necessarily symptomatic or producing disability at the time of the plaintiff's accident.

There was considerable discussion during the course of the evidence as to the mechanisms which may have caused the plaintiff to sustain a knee injury in the motor vehicle accident, particularly in light of the fact that she had not noticed symptoms immediately thereafter. I should say that I am satisfied upon the whole of the evidence, particularly having regard to the opinions expressed by Dr Rosengarten and Mr Bye, that the strong probability is that the plaintiff had her right leg jammed against the brake pedal of her vehicle at the time of the collision and that as a consequence of this she sustained a slow effusion into the knee compartment which caused a gradual swelling of the knee during the time that she was visiting her aunt thereafter. This produced a considerable swelling by the time she commenced to leave her aunt's residence which manifested its existence by causing her severe pain as she commenced to walk down the steps towards the front gate.

Mr Bye expressed himself in these terms:

"My mechanism is that the force of the motor vehicle accident caused her to have a bleed. She was far more prone to that bleed because of the softness on the back of the kneecap but certainly that softness, a lot of that softness, the chronic softness that I have been seeing then would have been present before that. It didn't just happen at the time of the accident ... My mechanism is that prior to this she had well aligned muscles. She was using her knee she was getting around living her life and the muscles were moving normally and controlling the amount of pressure going on the back of the kneecap. When you have an incident which causes pain to the knee it invariably causes some muscle wasting or weakness which causes unco–ordinated muscle action which could put different stresses on the back of the kneecap which causes pain which causes more muscle wasting and so you get into a downhill cycle with this sort of problem which I feel that she got into. ... The motor vehicle accident caused her to have a bleed and pain in her knee which caused her to lose muscle power which put more stress on the back of her kneecap which caused her more pain which caused her more muscle wasting and so it went on."

Before continuing to discuss the way in which the plaintiff's symptoms in the injured knee progressed after the accident and the medical opinions expressed thereon, it is appropriate I think to make the following observation. The plaintiff was actively engaged in playing hockey at the time of the accident although in the limited way that I have described above. She claims damages as a consequence of the current disability which she experiences and, in terms of the normal principles of causation I have no doubt that her current disability has indeed been caused by the accident. Nonetheless it is plain to me that her claim in respect of economic loss must be very substantially discounted because of the predisposition that she had to substantial disability from comparatively minor trauma. In other words, I think that overall she would have been very lucky to go through life without sustaining some injury of the kind which in fact produced her disability on this occasion. This is perhaps best explained by referring to another passage of Mr Bye's evidence as follows:

"She obviously had an abnormal knee though she was asymptomatic between '79 and '84 ... One could imagine that since she was living a reasonably normal life with a bit of luck she may have had no trouble at all. It is possible that she could have developed trouble with the knee with just normal life, but given that she's gone four years it may be that that could have kept going. With a knock or trauma, any knock, any trauma then she could have easily developed this. It happened to be a motor vehicle accident which upset the balance of a finely balanced knee. I mean it could have been a minor knock this didn't appear to be a minor knock but it could have been a minor knock. ... She could have walked past a door frame and knocked it or someone slammed the door on her knee or hit it on the edge of a desk and that could have caused the kind of – caused some pain which, given that we now know that she's prone to sympathetic dystrophy that it could have started the cycle of events which allowed the muscles to get weak and so the snowball effect could have started rolling again."

The plaintiff's description as to her first consciousness of injury and the way in which her symptoms developed thereafter, may be summarized as follows. She commenced to leave her aunt's place approximately one hour after the collision. She then felt a very severe sharp, stabbing pain in her knee and upon inspection, found that the knee was very swollen. She was collected from her aunt's home by her mother and consulted her general practitioner, Dr Stoksik. He administered a pain killing injection and the swelling went down overnight, but the following day when she started to move around again the swelling reappeared. She consulted Dr Stoksik again and he referred her to Mr Howard Bye. He arranged for the arthroscopy to be undertaken on 16 March. No other surgical procedure took place at that time. She was allowed home on crutches for a period of 10 days and was prescribed Digesic for pain. Physiotherapy was also undertaken but after about a fortnight when there appeared to be no improvement in her condition, she was referred to the Douglas Parker Centre for in patient treatment. She was there for approximately three months where further physiotherapy and hydro–therapy was undertaken. The knee continued to give substantial pain and in particular, a sharp burning sensation under the kneecap and through the knee joint. After her time as an in patient she continued treatment as a out patient for a further 9 months. During this time she was wearing a neoprene knee brace which gave her a feeling of greater stability in the knee and it also helped reduce the swelling which nonetheless was constantly present.

Following her treatment at the Douglas Parker Centre she received further physiotherapy assistance from Boreham and Hunn for approximately 6 weeks. From there she went to the Bellerive Physiotherapy Clinic and was given further treatment over a period of 2 – 3 months. Although the pain did not diminish the plaintiff started to build up strength in the injured knee. She continued with the treatment at the Bellerive Sports Clinic and later with private consultations with the physiotherapist who had treated her at the clinic over the next 2 years. The pain continued however, and indeed continues until the present time. Many processes were undertaken to bring about pain reduction including the use of a TENS machine and soft tissue manipulation but rather than reducing the pain, these activities appeared to increase it temporarily.

The plaintiff is still having physiotherapy to a limited extent although during a period of 4 months prior to the trial, she had attended only 2 consultations. Over the years since the accident the muscle in the knee joint has improved considerably but the plaintiff says that the pain level still remains constant and significant. She constantly wears a knee brace or a compression bandage when she is not wearing a knee brace. She takes Digesic once, twice or sometimes three times a day.

Detailed evidence was given by Dr Rosengarten, a vascular surgeon from Melbourne and Mr Howard Bye, an orthopaedic surgeon from Hobart as to diagnostic investigations which they undertook for the purpose of ascertaining the source of the plaintiff's condition of chronic pain. Although their opinions differed in some respects, overall their evidence completely satisfies me that the plaintiff's initial symptoms were due to reflex sympathetic dystrophy. This condition is caused by the automatic nervous system of the body reacting to trauma and producing chronic bizarre and agonising pain. Because this is caused by a spasm of the nerves, the blood vessels frequently constrict, the affected limb becomes pale, there can be distortions in perception of heat and cold, the skin may become shiny and the hairs on the limb may stop growing. In addition, swelling can occur and over time, nutritional changes will occur, possibly causing loss of calcium in the bones and consequent osteoporosis.

Mr Bye did not feel confident in making this diagnosis of the plaintiff's syndrome until towards the end of 1985. He undertook a number of diagnostic procedures and referred her to Melbourne for treatment. Mr Bye has seen a gradual improvement in the plaintiff's condition over the years and he feels that the sympathetic dystrophy is now scarcely operating at all as a symptom producing mechanism in the plaintiff's knee. He feels that her current pain is more specifically referable to the roughened articular surface on the back of her kneecap. However he feels that this would not have occurred and would not itself have become symptomatic if the plaintiff had not initially developed the reflex sympathetic dystrophy. For these reasons it is plain that the plaintiff's current condition is causally referable to the accident in March 1984.

Dr Rosengarten was of opinion that the reflex sympathetic dystrophy had diminished in its contribution to the plaintiff's current disability but he felt that it was still operating to a level of approximately 10%. He also suggested that there may be some loose medial meniscus material behind the plaintiff's kneecap which is contributing to the remaining 90% of her disability. He thought that it would be reasonable for her to undergo a further arthroscopy for the purpose of seeing if this irritating material is present in the knee compartment taking care to put the plaintiff's sympathetic nervous system out of operation while that investigation is undertaken.

Mr Bye was strongly opposed to this proposal for two main reasons. Firstly, he was completely satisfied that there is no loose meniscal material within the knee compartment. Secondly, he sees a grave risk of re–awakening the sympathetic dystrophy if a further invasive procedure of this kind is undertaken. Mr Bye said:

"I don't know when you could say that the sympathetic dystrophy ceased to operate but in the last year or two. So in that intervening 6 years or 5 years there's obviously been more damage to the softened back of the kneecap by the weakened muscles which I felt were caused by the motor vehicle accident. So the motor vehicle accident I think it would be reasonable to say has made the back of her kneecap problem a little worse than before the accident. ... The motor vehicle accident has flared up her soft back of the kneecap and she has symptoms from that which probably wouldn't have been bothering her if she hadn't had the motor vehicle accident."

Mr Bye discussed a number of surgical possibilities that in normal circumstances may be of assistance to the plaintiff. As already mentioned, he discounted the possibility of removal of loose material from the knee compartment because he said there is simply none there. He also discounted the possibility of shaving the back of the kneecap and producing a renewed, smooth articular surface because, "too much on the back of the kneecap was loose and basically what I would be doing would be shaving off most of the back of the kneecap which would leave her with raw bone which we know doesn't work". He also discounted the possibility of beneficial effects resulting from a patellectomy or a tibial–tubical advancement or an arthrodesis of the knee. He thought that the plaintiff was "getting somewhere" without any of these surgical interventions but his main reason for rejecting them was the very real possibility as he saw it that they may cause a flare up of the reflex sympathetic dystrophy. He said this could not be discounted even if a lumbar sympathectomy were to be performed upon the plaintiff because "people who have had total sympathectomy surgically performed can still get the symptoms of a sympathetic dystrophy". Dr Rosengarten also agreed with this view.

In so far as there is a conflict between the evidence of Dr Rosengarten and Mr Bye, I prefer the evidence of Mr Bye. He has treated the plaintiff over a much more extensive period than Mr Rosengarten and he has actually seen inside her knee joint when performing the arthroscopy on 16 March 1984. I am also of opinion that his considerable apprehension as to the possibility of renewed and severe sympathetic dystrophy in the event of further surgery, is well founded.

As to the future, Mr Bye said that the plaintiff should be encouraged to maintain a reasonably normal life pattern with some form of employment in which she has flexibility as to the way she moves about and rests her injured knee. He foresees that she will require analgesics, physiotherapy and anti–inflammatories from time to time and he suggested that by keeping the knee mobile and developing the supporting muscles, there will be "hopefully smoothing off the back of her kneecap in a more natural way and hopefully getting less pain". He agreed that her hours of work should be limited and that although she should not seek to protect her knee abnormally from movement she should certainly cease any movement which produces pain. Whilst there is no reason to anticipate substantial improvement in the plaintiff's knee in the foreseeable future, there is equally no reason to anticipate that its condition will get worse. Indeed, it seems that she has developed a gradually improved capacity to adapt to her disability over the last few years and I see no reason to anticipate her inability to continue in employment with Tasmanian Coffee Roasters or to undertake similarly remunerative employment.

There was some inconsistency in the evidence but I find that the plaintiff commenced working with Tasmanian Coffee Roasters in April of 1989. For the first 4 months or so her hours of work fluctuated to some extent but appear to have averaged about 14 hours per week. Thereafter, from the end of August until December 1989 when her employers went overseas and left her in charge of the business, she was working 26 hours most weeks although on each of two successive weeks in November, she worked for 45½ hours. During her employers' absence overseas, she worked on average 33 hours per week and since their return in February 1990 she has been working on average 35 hours per week. These figure have been taken from her employers' records and are at variance to some extent with the oral evidence. The impression given by the plaintiff was that during her employers' absence she was working longer and more arduous hours than she had been required to work since their return. This claim does not seem to be borne out by the figures.

She appears to find this employment congenial and her employers make every reasonable concession that they possibly can to her disability. She can work at her own pace and she can sit down and rest as frequently as necessary. I have no doubt that she has difficulty performing some of the tasks allocated to her and that as her leg tires towards the end of a busy day, she will experience pain.

E LOSS OF FUTURE EARNING CAPACITY

It was suggested by her counsel that her future earning capacity has been diminished to the extent of 75%. It was also submitted that the wages which she would have earned at the Royal Hobart Hospital, should be used as the yardstick for assessing both her past loss of earnings and the loss of her future earning capacity. I am by no means persuaded that this is the appropriate method of calculation. From the time she entered the work force until the occurrence of the accident she had pursued a varied working career. There were long periods of unemployment and it cannot be said that she established any particular earning pattern between 1971 and 1984. During her post–accident recovery period she has demonstrated an ability to undertake clerical and managerial work and has shown an interest in business management. Whilst she lacks formal qualifications and has only limited experience in this area, it is plain that her inclinations lie in this field. Whilst she continues to be employed by Tasmanian Coffee Roasters, I think her diminution in earning capacity is comparatively slight. She is after all working only 3 hours per week less than a fulltime employee at the present time. On the other hand, the proprietors of Tasmanian Coffee Roasters are plainly sympathetic and caring employers. If they should go out of business or the undertaking should change hands for any reason the plaintiff could be at a substantial disadvantage on the open labour market. In the calculations presented to me by the plaintiff's counsel, it was suggested that she would have had a net weekly earning capacity in the vicinity of $341 per week but for the accident. I am satisfied that this is a reasonable base figure upon which to make calculations but I am not persuaded that she has only a 25% residual earning capacity. I think it is considerably more than that. It was also submitted that it should be assumed that she has a residual working life expectancy of 30 years. There is very little evidence to support this contention but I am satisfied on balance that it should be assumed that she has a 25 year working life ahead of her and that for that period of time she has lost 40% of her capacity. There is however a large contingency factor also to be taken into account for the reasons which I have previously explained. In my opinion an unusually high contingency factor of 30% ought to apply in the circumstances of this case. Accordingly I assess the plaintiff's future economic loss as follows:

Current value of $341 net per week
for 25 years = $314,402.00
Less 60% ie $188,641.20
$125,760.80

Less 30% for contingencies = $ 37,728.24
Balance = $ 88,032.56

I propose to round this down to $88,000.00.

F PAIN, SUFFERING AND LOSS OF AMENITIES

As to pain, suffering and loss of amenities of life, it is clear that many of the disabilities which affect the plaintiff's working capacity also impinge upon her normal activities. She has pain from prolonged standing, walking, lifting, carrying and bending or continuous sitting. She cannot wear high heeled shoes and she has difficulty driving a manual transmission motor vehicle. She is precluded from playing hockey, surfing and playing table tennis. She can still play 8 Ball, but with difficulty. She still needs to wear a knee brace or compression bandage to give support to the leg and she will require to attend for physiotherapy from time to time in future. She walks with a pronounced limp and is unable to wear dresses or stockings. She has difficulty in carrying out many household tasks. For example, she finds that she is unable to bend over and clean a bath because of the pain which she gets in the knee. She cannot squat beside the bath to clean it and if she bends from the waist she knocks her knee against the bath, causing pain. She "can't do a lot of gardening" but I infer that she does some. I am satisfied that she has a constant level of pain in the knee and that she requires to rest it quite frequently. Her weekends are substantially disrupted by the necessity for her to rest her leg in readiness for the following week's work. I am satisfied that she needs to take pain killers with some degree of regularity to keep the pain under control. I am also satisfied that initially the pain was of a very severe kind and she has plainly undergone an extensive period of physiotherapy at various establishments to strengthen and regain mobility in the knee. In my opinion, an appropriate award under the heading of pain, suffering and loss of amenities is the sum of $30,000.

G PAST ECONOMIC LOSS

The plaintiff has also claimed and particularised a number of other individual items. Her claim in respect of past economic loss is to some extent complicated by the absence of evidence to indicate the time at which it would have been reasonable for her to recommence looking for work. However, she obtained part time employment with ACI Industries and also Tasmanian Coffee Roasters in April of 1989. She ceased working with ACI in August 1989 and she attributed this to the pain that she was suffering in the right knee but I have some doubt as to this. In figures calculated by her counsel the plaintiff gives credit for the amounts actually received by her since the date of the accident. Overall the figures as calculated are reasonable but they make no allowance for possible periods of unemployment. Based upon the plaintiff's past employment history some reduction should be made on this account. I therefore propose to allow this item at $51,073.80, ie 75% of the sum claimed.

H SPECIAL DAMAGES

The plaintiff also claims three items of special damages, namely analgesics to the date of trial, $326, travelling expenses as agreed, $199 and monies provided by the Commonwealth for rehabilitation services as per exhibit P10 (excluding training allowances). There was no dispute as to this last claim in principle but I note that the arithmetic in exhibit P10 is erroneous. I allow the sum of $1,668.20 in respect of this item, giving a total for special damages of $2,193.20.

FUTURE MEDICATION

The plaintiff also claims for the cost of future medication at the rate of $4.61 per week. Mr Bye was by no means satisfied that the plaintiff should continue using Digesic to the extent that she is at the present. However it was plain from what he said that she will require analgesic and anti–inflammatory tablets from time to time in the future and I am satisfied that an allowance of $4.61 per week is reasonable. I propose to allow this sum for a period of 43 years less a 10% contingency factor. On this basis on the 3% discount tables I allow $4,754.88.

J FUTURE PHYSIOTHERAPY

The plaintiff also claims in respect of future physiotherapy. It is claimed that she will require this twice a week for 44 weeks per annum. The evidence of Mr Bye again satisfies me that physiotherapy with this regularity will not be required in future. I think it reasonable to allow the plaintiff the cost of one visit to the physiotherapist a week for 44 weeks per annum. Again allowing this for 43 years on the 3% discount tables and including a 10% contingency factor, the total allowable to the plaintiff is calculated at $23,980.14.

K RUNNING COSTS OF AUTOMATIC VEHICLE

I should add that I am not prepared to allow an item for the additional cost of the plaintiff procuring and running an automatic vehicle since the time of the accident. I think that the increased fuel costs that she told me about since she changed over to an automatic 6 cylinder Cortina may be largely accounted for by the increased power of her new vehicle. I am also of opinion that the evidence of Mr Kenneth Cowley the new car manager of Tilford Motors is inadequate to justify the plaintiff's claim for the increased cost of running an automatic vehicle. The plaintiff says that it costs her an additional $20 per week to run her present vehicle than it did to run the manual Escort van. This may be so but they are completely different vehicles and she now lives in a different area.

Whether or not her use of the vehicle has increased was unclear. There are many imponderables in the equation and the evidence simply does not satisfy me that any allowance should be made under this head.

L SUMMARY

Thus, the plaintiff's total damages are calculated as follows:

1         Loss of future earning  $ 88,000.00


capacity
2         Pain, suffering and loss  $   30,000.00


of amenities
3         Past economic loss  $   51,073.80
4         Special damages  $     2,193.20
5         Future medication  $     4,754.88
6         Future physiotherapy  $   23,980.14
Total   $ 200,002.02

To this sum must be added the amount of $46,289.28 as per the certificate from the Motor Accidents Insurance Board dated 9 May 1990, giving a total of $246,291.30. On the basis of my apportionment of liability in this case, the plaintiff will recover 35% of the above sum, namely $86,201.96. Deducting from this sum the amount that she has already received from the Motor Accidents Insurance Board of $46,289.28, the plaintiff is entitled to judgment for $39,912.68.