Winiarczyk v Tsirigotis
[2009] WADC 188
•9 DECEMBER 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WINIARCZYK -v- TSIRIGOTIS [2009] WADC 188
CORAM: WISBEY DCJ
HEARD: 20, 21 & 22 OCTOBER 2009
DELIVERED : 9 DECEMBER 2009
FILE NO/S: CIV 1184 of 2007
BETWEEN: ANNA WINIARCZYK
Plaintiff
AND
NIKOLAOS TSIRIGOTIS
DefendantSHANE MICHAEL FRANCES by his Next Friend PENNY FRANCES
Third Party
Catchwords:
Negligence - Highway - Collision of taxi with pedestrian moving into its pathway - Negligence of driver, and duty of care to passenger - Negligence of third party
Damages - Damage for injury suffered by passenger
Legislation:
Nil
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Ms B A Mangan
Third Party : Mr K S Pratt
Solicitors:
Plaintiff: Simon Walters
Defendant: Lavan Legal
Third Party : Trewin Norman & Co
Case(s) referred to in judgment(s):
Nil
WISBEY DCJ: At approximately 1.20 am on 28 November 2004 the plaintiff was the sole passenger in a taxi driven by the defendant, which collided with the third party, a pedestrian, in Whitfords Avenue, Padbury. The plaintiff positioned in the left rear seat wearing a seat belt alleges that she sustained soft tissue injuries caused by the negligent driving of the defendant. The alleged negligence particularised in par 3 of the statement of claim, although not pleaded with any degree of relevant precision, essentially is that the defendant:
(i)failed to keep any or proper lookout; and
(ii)drove at an excessive speed in all the circumstances such that there was the necessity for an emergency abrupt braking, with adverse consequences for the plaintiff.
In its original form the statement of claim alleged that the taxi "struck a pedestrian who suddenly and without warning crossed the road". By amendment at trial the words "who suddenly and without warning crossed the road" were deleted and replaced with the words "who was on the roadway". The requirement for the amendment is obvious.
The defendant denies that his manner of driving was negligent, and asserts that the third party caused the incident. In the alternative the defendant claims contribution from the third party. Somewhat surprisingly having regard to the requirements of O 19 Rules of the Supreme Court (RSC), third party directions were not obtained prior to trial, and notwithstanding that the parties were untroubled by that omission I directed that the third party issue be tried at the trial, and the third party have liberty to participate both as to liability and quantum.
It is to be observed that on 15 October 2009 an amended schedule of loss was filed increasing substantially the sums claimed for future medical treatment, loss of past earnings and earning capacity, and employer superannuation contributions. Counsel for the plaintiff resiled from that extravagant position at trial.
The scene of the accident
Whitfords Avenue is a dual carriageway with an east-west orientation. The western carriageway rises slightly in the locality of the accident. The west and east carriageways are separated by a wide grassed median strip centrally planted with trees. Each laneway is 3.5 metres wide. There is no dispute that at the material time the area was well lit with no impediment to vision. Conditions were fine.
The evidence
The plaintiff
The plaintiff was born in Poland on 31 March 1949 and was 55 years old at the time of the accident. She stated that she completed a course of hospitality and tourism in her early 20s, subsequently worked in travel, and operated a small café in Poland before migrating to Australia with her husband in January 1981. Her daughter was born in Australia in September 1981. Up until 1995 the plaintiff commuted regularly between Poland and Australia. In 1995 her husband purchased The Fishy Affair restaurant in James Street, Northbridge. It appears from the plaintiff's evidence that initially the restaurant was operated by the family company Paulous Nominees Pty Ltd, but was not financially successful and went into receivership in about 2002. Thereafter it appears that the plaintiff's husband acquired the restaurant under some other corporate structure, and the plaintiff was employed as assistant manager. She stated that she worked about 30 hours a week undertaking administrative duties such as the banking, dealing with customers, attending to the phone and operating the till. She did not work in the kitchen, or on table. She stated that she was unable to work for about six months following the accident, and then resumed working approximately 18 hours a week, her capacity being restricted by an inability to stand for long periods.
When describing the accident, the plaintiff said that everything happened very quickly. The taxi driver braked, she observed a pedestrian in front of the car, and the impact occurred. The defendant subsequently told her that he thought the pedestrian was dead. The plaintiff was in shock following impact. Her recollection was that the taxi took a long time to stop. The newspaper and handbag which she had placed on the rear seat were dislodged onto the floor under the front seat. Shortly after impact the plaintiff indicated that she believed her back was sore, but she did not then, or in evidence, identify the manner in which she sustained any injury.
Approximately 30 minutes post‑accident the plaintiff began to experience right‑sided neck pain, headache, and left chest pain, and later that day attended Royal Perth Hospital where she was prescribed medication. The following day she attended her general practitioner, Dr Tadros, who recommended physiotherapy which she did not consider gave her any relief. She progressed to hydrotherapy which was of therapeutic benefit, but she ceased attending because the Insurance Commission would not meet the cost. She produced a physiotherapy account in the sum of $1,203.92 (Exhibit 2). The plaintiff continued to attend upon her general practitioner and received a form of acupuncture. She claimed that neck pain and headaches persisted at a significant level for the first six to eight months.
The plaintiff returned to work at the restaurant in mid 2005, having reduced her hours by approximately 50 per cent. Standing operating the till caused her "huge, huge pain" and as a consequence from September 2005 she only worked on Saturdays, and ceased work altogether in October 2006. Notwithstanding, the plaintiff continued to receive her normal wage until May 2008, and has since been in receipt of Centrelink Newstart Allowance. The plaintiff and her husband separated in November 2006. The plaintiff produced a book of economic documents which comprised copies of her income tax returns and notices of assessment for the years ended 30 June 2000 to 2007, and a Centrelink summary (Exhibit 3). Apart from a few comments which indicated she did not understand the contents, no further reference was made to the book in evidence or closing submissions. The plaintiff also produced a copy of the Restaurant, Tea Room and Catering Workers Award (Exhibit 4) in respect of which no further reference was made.
Sometime after the accident and unrelated to it, the plaintiff developed bilateral carpal tunnel syndrome. It was obvious from her evidence that this condition was and is physically restricting.
At the present time the plaintiff's claimed symptoms from the accident‑caused injuries include very strong neck pain experienced three or four times a week, which had been constant for several weeks before trial. She stated the pain was right‑sided, extending into the right shoulder. The pain had a huge impact on her life in that she was unable to garden or engage in domestic activities such as mopping or vacuuming. It also affected her ability to cook. Before the accident it was her intention "to work forever … because I love to work".
She claimed to be in extreme pain during the course of her evidence, but that assertion was inconsistent with her presentation, which was of a lady with good cervical movement and no evidence of restriction or distress.
Notwithstanding an assertion to the contrary in the statement of claim, the plaintiff stated that she did not have back pain.
During cross-examination the plaintiff's attention was directed to a statement she made on 30 December 2004 in which she addressed the circumstances of the accident and said:
"The taxi driver was driving in the left lane, that is, the lane closest to the kerb. There were no cars in front of us. All of a sudden a person ran in front of the taxi, I'm not sure whether he came from the left or the right, I just saw him straight in front of the car. This person was very close to the front of the car … The driver was unable to miss this person and the front of the taxi hit this person … When the accident happened it was just so quick, the taxi driver had no chance to miss this person and the accident happened near Eddystone Road on Whitfords Avenue."
It was suggested to the plaintiff that what she told the police about the accident, and the above description, was inconsistent with her evidence. I do not see that to be the case. A reasonable interpretation of the statement is that she was indicating that she first saw the third party when he was in front of the taxi, and the other detail is reconstruction, or reflects in part what she was told by the defendant.
Wayne Goodwin
Sergeant Goodwin attended the accident and produced the accident report form (Exhibit 11) on which he recorded that the defendant advised him that his taxi was travelling at approximately 65 kilometres per hour in the western kerbside lane when a pedestrian ran from the Craigie or northern side of Whitfords Avenue into its path. Sergeant Goodwin recorded the accident locality as being 200 metres east of Eddystone Avenue. His sketch of the scene indicated shoes in the kerbside lane, the furtherest from the taxi being 22 metres east of the position where the stationary vehicle was located in the bicycle lane (i.e. the rear of the taxi was 22 metres forward of the shoe). Sergeant Goodwin stated that he declined to take a detailed statement from the defendant at the time because he appeared to be in shock, and all he did was obtain a "bare bones" account. He did not record, as he would clearly be expected to do if such there was, and there is no evidence of any skid marks left by the taxi.
Answers to interrogatories
The plaintiff tendered the defendant's answers to interrogatories sworn 18 August 2009 (Exhibit 1) in which he relevantly stated that he first observed the third party on the median strip approximately 50 metres west of the taxi which was then travelling at approximately 70 kilometres per hour. He agreed that he had a continuous view of the third party from that time until the collision which occurred approximately two to four seconds later. He stated that the third party moved from the median strip onto the inner westbound lane of Whitfords Avenue causing him to reduce his speed to approximately 60 kilometres per hour and move to the left.
Royal Perth Hospital
The plaintiff tendered by consent reports from Royal Perth Hospital dated 28 November 2004 and 6 June 2005 (Exhibits 10.1 and 10.2) where it is recorded that she attended following the accident complaining of right‑sided neck and left chest pain, and headache. Examination suggested tenderness in the chest and cervical muscles, but there was no focal neurological deficit or radiological evidence of injury.
Andrew C Harper
Dr Harper saw the plaintiff at the request of her solicitors on 11 April 2006 and 6 October 2009 and his reports bearing those dates were received in evidence (Exhibits 9.1 and 9.2).
In his report of 11 April 2006 Dr Harper stated that the plaintiff had not been working for approximately four months prior to seeing him because of paresthesia in both hands, which symptoms developed at approximately the beginning of 2006. He obtained a history of the accident and of the developing symptoms of right‑sided neck and left anterior chest pain, together with a "huge" headache.
The plaintiff's presenting symptoms were of significant persistent neck pain aggravated by physical activity and standing; neck stiffness; persistent headaches; paresthesia in the hands together with stiffness and swelling; and mood changes. She told Dr Harper that she had been absent from work for six to seven months post‑accident because of pain and stress, but had then resumed part‑time work until she developed hand symptoms. She stated that she intended to return to the workforce, working in a restaurant. Dr Harper recorded that sleep, dressing, showering, sitting, standing and walking were unimpeded, although, save for cooking, she had difficulty doing housework. He described the plaintiff as not being in distress or apparent discomfort during the interview. He considered there was mild reduction in neck movement, being 25 per cent restriction in rotation and extension, and slight reduction in side and forward flexion. He concluded that the plaintiff had sustained a strain injury to the cervical spine superimposed upon pre‑existing asymptomatic degenerative changes, and post‑traumatic anxiety which had largely resolved. Dr Harper was of the view that were it not for the hand symptoms, the plaintiff was capable of full‑time work in her pre‑accident job as an assistant restaurant manager. The disability resulting from the motor vehicle accident reduced her vocational competitiveness by a small degree, and he classed it as a mild residual disability of the cervical spine.
In his report of 6 October 2009 Dr Harper referred to the plaintiff's then presenting complaints of intermittent neck pain and headaches. The report suggests that there had been little change in the plaintiff's condition since the earlier examination, but Dr Harper concluded there was some mild restriction of vocational capacity due to the accident caused injuries.
Claudio Nick De Felice
Dr De Felice, a consultant psychiatrist, was called by the plaintiff, and his reports of 22 June 2007 and 7 October 2009 were tendered (Exhibits 6.1 and 6.2). He saw the plaintiff initially on 22 June 2007 at the request of her solicitor.
In his report of 22 June 2007 Dr De Felice referred to the plaintiff presenting symptoms and noted that she indicated that she had physical limitations, but was capable of performing all her home duties although vacuuming, mopping and gardening caused aggravation of pain. As at the date of the consultation she was apparently beach walking her dogs. Dr De Felice diagnosed post‑traumatic stress disorder, but not only is that condition not pleaded as an accident consequence, the diagnosis was based upon an account of symptoms such as nightmares not referred to by the plaintiff in evidence. Dr De Felice did not consider there was any psychiatric condition that compromised the plaintiff's work capacity.
In his report of 7 October 2009 Dr De Felice noted that the plaintiff had just returned from three months' holiday in Poland. The report suggests there had been improvement since the initial assessment.
Francis Louis Mastaglia
Professor Mastaglia, a consultant neurologist, saw the plaintiff on 13 September 2007 and 8 October 2009 for the purpose of a medico‑legal assessment. His reports of 13 September 2007 and 8 October 2009 were received in evidence (Exhibits 7.1 and 7.2).
In his report of 13 September 2007 Professor Mastaglia set out the plaintiff's history and presenting complaints. He referred particularly to her complaint of severe constant right‑sided neck pain radiating into the shoulder areas, particularly on the right, and occipital headaches occurring two to three times per week. He also noted her complaint of tingling and numbness in both hands which she felt commenced a few weeks after the accident, and which was obviously the product of bilateral carpal tunnel syndrome. Clinical examination revealed some minor restriction of cervical movement and moderate tenderness, together with a restricted range of right shoulder joint movement and pain. Accepting the history given, Professor Mastaglia concluded that the plaintiff had suffered a significant musculo‑ligamentous injury to the cervical spine, and probable facet joint strain on the right side, as well as an injury to the left shoulder joint. The latter is not pleaded as an accident caused injury. He was happy to accept that it was unlikely that she would be fit to resume her previous employment, but there is no evidence to indicate what his understanding of the nature of that employment was, although it is open to inference that he may have thought it required repetitive bending, twisting, lifting and working with the arms elevated, which it did not. He concluded that the neck injury was of moderate severity and required some pharmaceutical and physiotherapy support.
In his report of 8 October 2009 Professor Mastaglia stated that the plaintiff claimed she was still getting severe neck and shoulder pain, and headaches, on an intermittent basis. Cervical movement was again moderately restricted, with localised tenderness, and he concluded that there did not appear to have been any significant change since his first assessment.
When asked in evidence why he concluded that the plaintiff has suffered a muscular ligamentous injury, Professor Mastaglia said:
"Namely, the car travelling – going from a speed of somewhere between 50 and 60 kilometres per hour to zero kilometres very abruptly indicated to me that if a restrained passenger in the back seat had not had any awareness of the impending fact that the taxi was going to pull up, that there would therefore be a significant whiplash effect on the restrained passenger and particularly on the unrestrained neck and head."
Nikolaos Tsirigotis
The defendant is a business proprietor and taxi driver, having been engaged as the latter for about 16 years. He stated that as he was proceeding in a westerly direction in the kerbside lane on Whitfords Avenue he observed a young male (the third party) come from behind a tree on the median strip, apparently intent on crossing the road. The third party was approximately 50 metres forward of the taxi when first observed, and ran from the median strip in a south‑easterly direction towards the taxi with his fists raised, his mouth open, and teeth clenched. The defendant stated that he slowed down to about 60 kph, and the third party stopped while still in the inner lane, and while continuously looking towards the taxi, turned to his left and began walking back towards the median strip. He suddenly turned, moved and dived towards the taxi, and his head collided with the front right corner of the taxi above the headlight. The defendant stated that he thought the third party might be a kid with a rock in his hand, and he consequently slowed down, swerved to the left and proceeded in the left‑hand side of the kerbside lane, intending to pass him. His estimate was that the third party was 20 to 30 metres from the taxi when he stepped onto the roadway, and as he moved towards the taxi his posture was hunched. The taxi was about 2 metres from the third party who was standing in the inner lane immediately prior to turning, moving and diving into it.
The defendant stated:
"He was well and truly in the right lane. The left lane was clear. I slowed down, swerved, kept to the left and, like I said, which I've shown you there with the drawing, he turned around and then at the last moment when I was passing, about 2 metres, just dived across."
It is apparent that the defendant's evidence suggests that the third party was at all times looking towards and constantly aware of the position of the approaching taxi.
The defendant felt that the third party was in a position close to the median strip before he turned and dived into the path of the taxi. He stated that he had slowed down to possibly 60 – 65 kilometres an hour before that occurred. The defendant stated that when the taxi first moved to the left of the kerbside lane the third party turned and was moving away from its path. The defendant swerved to the left again as the third party dived towards the taxi. He stated that after impact he braked and brought the vehicle to a gradual stop. The third party was wedged under the taxi such that his upper torso, arms and chest were in front of the vehicle, and his lower body and legs under it, with his left leg on the outer side and right leg on the inner side of the front right-hand wheel.
In cross-examination the defendant stated that when he observed the third party on the median strip he assumed that he was going to cross the road, and consequently released the accelerator and watched him. The third party started running towards the taxi with his fists up, and at that stage the taxi's speed had decreased 5 or 10 kilometres an hour. The defendant braked and swerved to the left, and the third party turned away from the taxi. He was adamant that he started to slow down when the third party came onto the carriageway, but continued on when the third party turned around and walked away from the path of the taxi. Initially he thought there was a risk that the third party would run into the path of the taxi, but not when the third party changed direction and retreated towards the median strip. He indicated that had the third party not changed direction, he would have stopped the taxi. Having moved away from the path of the taxi the third party at "the last split second, spun around, turned around, took a step or two and dived".
The defendant's attention was drawn to his police statement made 11 January2005 (Exhibit 15) in which the following appears:
"He was facing me, still hunched over, and running towards me with both fists clenched and up in front of him. As I slowed and veered to the left, he has stopped, turned, and started to walk back towards the median strip. I could see him continually look over his shoulder at me. When I was about 5 metres from him he has turned back towards me, taken a few steps and then dived in front of my taxi. The front right corner of my taxi has hit the left side of the person and he has hit his left side of his head on the car. I have slammed on my brakes and come to a stop near the end of the bus shelter."
Notwithstanding the contrary representation in the statement, the defendant denied that he slammed on the brakes, stating that he simply applied the brakes; but then amplified that by stating "I slammed the brakes, but I didn't put my foot through the floor". He stated that the application of the brakes and swerving occurred at the same time as the impact. He agreed that he did not reduce the speed of his vehicle below 60 kilometres per hour, indicating that after he braked and reduced speed initially he was "coasting". The fact that there was no evidence of skid marks, and that a shoe was located 22 metres to the rear of the taxi's final resting position, supports the defendant's account.
William Thomas Halhed
Mr Halhed, a sales manager, gave evidence that at about 1.00 am on 28 November 2004 he was driving in a westerly direction in the inside lane of Whitfords Avenue intending to turn right at Eddystone Avenue. He estimated his speed at between 65 and 70 kilometres per hour ("70 at most"). There was another vehicle in the kerbside lane forward of his vehicle "which would have to be the taxi driver". He stated that:
"Suddenly I saw something just run – run across the road. Like a flash across the road. Then I saw something being hit."
The flash had come from his right‑hand or median strip side. He stopped his vehicle and telephoned the police. He indicated that he was not watching the taxi prior to observing the flash, but immediately thereafter saw that the brakes of the taxi had been applied, and heard the impact. He observed that following impact the defendant was in a very distraught state.
In cross‑examination he stated that the taxi was about four car lengths forward of his vehicle, having been in that position for about three or four minutes prior to the incident, during which time he did not observe it change speed, have brakes applied or shift position on the roadway. He was emphatic that had any of those things occurred he would have observed it, although why that would have been the case if he had not been paying attention to it, as he indicated in evidence‑in‑chief, is not clear.
Section 79C statement
Pursuant to s 79C of the Evidence Act I received in evidence the statement of a 48‑year‑old customer service officer whose name was suppressed because there was a public interest issue as the statement had been provided to Crime Stoppers. In that statement she indicated that in the early morning of 28 November 2004 she was driving west in Whitfords Avenue preparatory to turning right into Eddystone Avenue and observed a young male walking in an easterly direction on the northern side of Whitfords Avenue. Shortly thereafter when travelling east along Whitfords Avenue in the kerbside lane on the return journey she observed the same person jump out from behind a bus shelter about 100 metres from Eddystone Avenue onto the road in front of her vehicle, waving his arms. She drove around him into the left lane as he walked back towards the shelter. A short time later when again travelling west on Whitfords Avenue she observed the accident had occurred, and thought that the young male might have been involved. Later that morning, at the suggestion of her daughter, she telephoned the police and advised what she had observed. She later gave the written statement and, having regard to the circumstances in which it was given, I am satisfied that it is reliable, and that the young male she observed was the third party.
John Graham Rosenthal
The plaintiff was reviewed by the rehabilitation physician, Dr Rosenthal on 30 May 2005 and 8 October 2009 at the request of the defendant, and his reports bearing the date of the consultations were received in evidence (Exhibit 8.1 and 8.2).
On 30 May 2005 Dr Rosenthal reported that the plaintiff had a mild lower back complaint many years earlier, but had been free of any musculoskeletal complaints prior to the accident. He referred to the circumstances of the accident, noting that within 20 minutes of the accident the plaintiff developed severe right upper neck pain and associated headache and some left upper pectoral discomfort. Initial treatment had been by way of medication and physiotherapy which was of no therapeutic benefit. Hydrotherapy was. She had been prescribed anti‑inflammatories and analgesics. Dr Rosenthal recorded presenting complaints of depression, constant right upper cervical pain radiating into the supra‑scapula area, and occipital headaches, which were impacting upon her daily activities. Clinical examination revealed satisfactory cervical posture with a reasonable range of cervical movement, save that there was moderate restriction of rotation and lateral deviation. There was facetal tenderness at C 3/4 and C 4/5. It appeared that the plaintiff had degenerative disc disease, which is not surprising having regard to her age. Dr Rosenthal reported that there was clinical evidence of right upper cervical facetal dysfunction, and that it was probable that the motor vehicle accident caused some degree of cervical strain. He felt that there was a significant psychological component to the clinical presentation, but the prognosis was positive, and permanent disability was unlikely. He recommended upper body exercise, referral to a clinical psychologist, and a return to work as it was in the plaintiff's best interest to remain active and productive, and her work was not physically demanding. He concluded that the continuation of symptoms was probably anxiety related.
In his report of 8 October 2009 Dr Rosenthal referred to the bilateral carpel tunnel syndrome which was not in evidence at the time of his first consultation. He reported that the plaintiff was not taking any antidepressant or anxiolytic medication, and had a minimal requirement for analgesic medication. The plaintiff stated that her headaches had reduced in frequency and severity – they were only experienced occasionally. Clinical examination revealed a 50 per cent reduction in cervical movement which Dr Rosenthal considered was voluntarily induced, but which did not exceed 20 per cent when objectively tested. He concluded that there was some persisting right upper and mid‑cervical facet joint dysfunction, although with features of enhancement. He assessed permanent impairment at 5 per cent loss of function of the cervical spine, and stated that the plaintiff was fit for her pre‑accident employment.
Robert John Lyne Davey
The third party did not give evidence but called Mr Davey, a motor vehicle accident consultant, and his report dated 15 September 2009 was received in evidence (Exhibit 17). Mr Davey gave evidence that the Whitfords Avenue traffic lanes were 3.5 metres wide. He:
(a)reported that the average response time of a driver to a clearly discriminable and unambiguous stimulus was of the order of 2.5 seconds; and
(b)expressed the view that if the defendant had been travelling at 70 kilometres per hour, with emergency braking and with a one‑second reaction time before braking, he could have brought the taxi to a stop within 50 metres; and with a two‑second reaction time the taxi would have been travelling at 53 kilometres per hour after 50 metres.
Assuming that to be correct, and that the defendant's estimates of distances, speed, time and other observation variables were accurate, it would seem that if the defendant had attempted to bring his taxi to a halt as soon as the third party entered the carriageway, a collision would have occurred notwithstanding. Also that it would have necessitated an emergency braking of a nature that would have caused the plaintiff to be subjected to the forces of deceleration which it is said caused her injuries.
The defendant's evidence of distances, speed, time etc, are no more than estimates based on reconstruction, and are no proper basis for any mathematical or scientific analysis or reconstruction.
Liability
The plaintiff carries the burden of establishing on balance that the defendant was negligent, and that it was causative of injury to her.
In opening submissions Mr Clyne indicated that essentially the plaintiff relied upon establishing that the defendant, having observed the third party proceed out onto the carriageway, failed to react appropriately (i.e. reduce his speed) so as to avoid colliding with the third party and/or the necessity to brake abruptly. In closing submissions he relevantly conceded that the third party was predominantly responsible, but maintained that the defendant was also negligent as "had this defendant slowed earlier at a moderate reasonable rate as a person does, say coming up to traffic lights that change, you do not get whiplashes in those sort of situations".
An evaluation of that submission requires determination and identification of the precise circumstances of the accident, which in this case is a particularly difficult task. The material available to do so is essentially the evidence of Sergeant Goodwin; the defendant's statements made at the time of the accident (Exhibit 11) and subsequently on 11 January 2005 (Exhibit 15); the defendant's answers to interrogatories (exhibit 1); the defendant's evidence; the evidence of Mr Halhed; and the s 79C statement.
The witness statement admitted pursuant to s 79C is compelling, and I accept that it is an accurate account of the matters referred to therein. It establishes that shortly before the accident the third party acted in a deliberately reckless manner, careless of his own welfare. He jumped out suddenly from a concealed position in front of an oncoming vehicle on a thoroughfare where traffic would be expected to be moving rapidly, and where pedestrians would be the exception rather than the rule. That earlier behaviour is entirely consistent with his subsequent behaviour as alleged by the defendant.
The evidence of Mr Halhed is at variance with that of the defendant. His observation was of something running across the road (like a white flash) which had come from his right‑hand side, immediately before the impact. He had for a period prior thereto been travelling in the same direction as but about four car lengths back from the defendant's taxi, and in the inner lane. Until immediately prior to impact he had not observed the brake lights of the taxi activated or its speed and/or direction change. The reliability of his observations must necessarily be evaluated having regard to the statement made by him earlier in his evidence that he was not watching the taxi prior to seeing the "flash", and the fact that his observations were insufficient to enable him to recognise that it was a pedestrian. It is probable that his observation of the "flash" was the movement of the third party subsequent to him retreating towards the median strip.
From time to time the defendant was belligerent when challenged as to the accuracy of his account of the accident, and there were occasions when, having regard to the nature of the cross‑examination, that was understandable. Also he appeared to be affronted by the proposition that he was responsible for what had occurred. His account of the accident as recorded by Sergeant Goodwin in the accident report form (Exhibit 11) makes no reference to the bizarre behaviour of the third party set out in the more detailed statement given to the police on 11 January 2005 (Exhibit 15), and in his evidence; the latter two accounts being essentially consistent. It is to be remembered however that Sergeant Goodwin stated that when he spoke to the defendant immediately after the accident he declined to take a detailed statement because of the defendant's distressed condition. It is also extremely significant that the bizarre behaviour of the third party referred to by the defendant in his evidence, is entirely consistent with the behaviour observed by the unidentified witness earlier in the evening. Such a co‑incidence, were it not the fact, would be extraordinary.
I accept that the third party moved rapidly from a stationary position on the median strip, onto the western carriageway and diagonally in a south‑easterly direction towards the taxi, in a threatening manner. Before reaching the kerb‑side lane, and whilst keeping the taxi under observation, he retreated towards the median strip before again turning, taking a few steps, and propelling himself into its path. I accept that when the third party stepped onto the carriageway, the defendant who was then travelling at approximately 70 kilometres per hour, applied the brake slightly, reducing the speed of the taxi to something of the order of 60 kilometres per hour, and veered left whilst watching him. Upon observing the third party stop and begin to retreat, the defendant "coasted" on, but simultaneously with the third party propelling himself towards the taxi, applied the brakes and swerved to the left. The plaintiff's statement that the taxi was slow to stop; the fact that there is no evidence of any skid marks; and the location of the shoes in respect to the final resting position of the taxi; are consistent with the defendant's description of the accident.
I am not satisfied on the evidence before me that the defendant's manner of driving from the time he observed the third party until impact, was other than appropriate ‑ that it has been shown that he did not act with reasonable care. This was not a case of a driver not paying proper attention to a child or an inattentive pedestrian. It would have been clear to the defendant at all times that the third party was aware of the proximity and approach of the taxi, and the defendant could not reasonably have anticipated his bizarre behaviour. The calamity was entirely the responsibility of the third party.
Quantum
Notwithstanding the fact that the plaintiff has failed to establish negligence, it is appropriate that I make a provisional assessment of damages.
In this type of case, the medical assessments are largely dependant upon the reliability of the patient's history, and the accuracy of the complaints of symptoms and disability. I have already indicated that the plaintiff's presentation during her evidence was inconsistent with her alleged level of symptoms. It is also to be observed that there are some inconsistencies in her various accounts of the nature, duration and consequences of symptoms. Professor Mastaglia received an account of hand symptoms commencing a few weeks after the accident, and Dr Harper that paresthesia in the hands did not develop until approximately the beginning of 2006. The plaintiff told Dr Harper that she ceased working in early 2006 when her hand symptoms developed. I am mindful of the fact that it is not suggested that the carpel tunnel syndrome is a consequence of the accident, but it is an indication of the reliability of the plaintiff as a historian. Dr Rosenthal considered that there was voluntary restriction of cervical movement.
The injuries pleaded in the statement of claim are "soft tissue injuries to the spine and chest pain". It is alleged those injuries gave rise to pain, tenderness and limitation of movements of the neck and lower back, tender trapezius muscles, stress and anxiety, problems with memory and concentration, paresthesia in the hands, and headaches. The plaintiff in evidence made no reference to lower back problems, or difficulty with memory and concentration, and accepts that the hand problems are not accident related.
In the result I do not accept the plaintiff as a reliable witness.
The material from Royal Perth Hospital confirms that the plaintiff presented complaining of right‑sided neck pain and left‑sided chest pain. Examination suggested pain and tenderness over the right trapezius and a small area of the left chest. A diagnosis was made of a cervical sprain injury. There was no radiological evidence of bone injury.
The plaintiff's general practitioner was not called to give evidence.
Dr Rosenthal saw the plaintiff on 30 May 2005 and diagnosed right upper cervical facetal dysfunction resulting from cervical strain, probably amplified by associated anxiety. He considered that the prognosis was good and that there was unlikely to be any permanent disability from the accident caused injuries. When he saw her again on 8 October 2009 Dr Rosenthal accepted that there was some persisting right upper and mid‑cervical facet joint dysfunction with some features of enhancement.
Dr Harper, the next specialist to see the plaintiff, also diagnosed a strain injury to the cervical spine, super‑imposed upon pre‑existing asymptomatic degenerative changes. He shared the view expressed by Dr Rosenthal that she was fit for her pre‑accident employment and assessed the residual disability as mild.
Professor Mastaglia who first saw the plaintiff on 13 September 2007 considered that she had suffered a significant musculo-ligamentous injury to the cervical spine, and probable facet joint sprain on the right side. He felt that she was not fit for her pre‑accident employment. It is difficult to conclude from his report why he rated the cervical injury as of moderate severity or considered the symptoms resulted in vocational incapacity. I do not accept his diagnosis.
Having regard to the totality of the medical evidence, I find that in the accident the plaintiff sustained a mild cervical injury superimposed on a pre‑existing degenerative condition, and also some chest pain of limited duration. I do not accept that she sustained any post‑traumatic stress injury, and indeed it is not pleaded as a consequence of the accident. She has some mild residual symptoms which are not physically debilitating. The plaintiff's injuries are at most of the order of 5 per cent of a most extreme case. I assess general damages at $15,000. I would allow the outstanding physiotherapy account in the sum of $1,203.92.
I do not accept that the plaintiff's injuries resulted in diminution of earning capacity. In any event, she received her usual wage until August 2008. Any vocational incapacity is a consequence of non‑accident caused conditions.
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