IN THE HIGH COURT OF AUSTRALIA ( HARRIS STROUD : REASONS FOR JUDGMENT | i i | 4 i Judgment delivered at...... BRISBANE... W. M. Houston Gort. Prints Mtetb. | OR one SEB SVL AGEO one nnnnnnnrnrnee HARRIS v. STROUD JUDGMENT McTIEBRNAN J. BARRIS v. STROUD In this action the plaintiff sues the defendant to recover damages for personal injury. The amount claimed 'is £40,000. The cause of action sued upon is negligence. The action is within the original jurisdiction of this Court because the plaintiff and the defendant are residents of different States. The accident with which the case is concerned occurred at Cairns on Sunday, 22nd July 1956, At 7.25 p.m. a motor car which the defendant was driving overtook the plaintiff : and another lady, Miss Stephens, while they were walking on Minnie Street towards Sheridan Street. The motor car knocked the plaintiff on to the road and she thereby susteined an extremely serious injury to her brain. Miss Stephens was walking on the plaintiff's left side, their little fingers linked, as Miss Stephens said in evidence. The motor car grazed Miss Stephens' right arm but she was not otherwise injured. The estimated speed of the motor vehicle was 25 miles an hour. The only passenger in the motor car was Miss Cole, to whom the defendant was engaged. They married since the accident and this lady was a witness, The motor vehicle was proceeding on its correct side of Minnie Street, The plaintiff was struck by the near front end of the motor vehicle, It was a 1948 Vauxhall sedan. She was thrown forward, her heed striking the road. There was a bitumen strip in the middle of Minnie street, The width of the strip was sixteen feet. There was a foot of gravel at the sides of the bitumen, The plaintiff's head struck the road at a spot about two feet from the edges of the bitumen. The spot was marked by a pool of blood. Her feet were on the grass growing at the side of the gravel. She was unconscious and did not recover consciousness for some weeks. In consequence, she had no recollection of the accident. The plaintiff was a witness, The evidence which she gave related mostly to the question of damages. She exhibited by her manner of speech and her appearance signs of the grave damage done to her brain in the accident, The nature of the injury and its consequences are described in the medical evidence. The plaintiff was allowed to leave the Court immediately on the conclusion of her evidence and did not attend subsequently. There is evidence, confirmed even by the defendant's own evidence, that on this evening the plaintiff and Miss Stephens wore light dresses, that is light in colour, At 7.25 p.m. the street lights had been turned on but according to evidence of Mrs. Roche, which I accept, "Nit would just be not quite dark", There were street lights at the intersection of Grafton Street and Minnie Street, the last which the defendant crossed before the accident. There was another street light at the Sheridan intersection, The distance between these lights was about 460 feet. There was a bright light on a service station at the further corner of Sheridan Street on the right side of Minnie Street. There is evidence that it was moonlight at 7.25 p.m. on this evening. It would appear from the evidence of Mrs. Roche, called by the defendant, that pedestrians walking down Minnie Street from Grafton Street would be visible all the way to Sheridan Street. The evidence proves that the Ce Sscalient of the defendant's motor vehicle - the plaintiff was hit by the NA RRYVOE -effside-front end of the vehicle - was reasonably satisfactory ORR SOR but the glass of the nearside Neadlight was broken and, in consequence, the bulb of that light shone only with a glow and did not cast a beam. Minnie Street is a suburban street. It is a secondary road and its south-western end is a dead end, The direction between the Sheridan Street intersection and that at Grafton Street is south-west to north-east. Sheridan Street is a rather busy street. Minnie Street is not such. The right side of Minnie Street had a frontage of houses and a few w shops. The footway on that side was not fit for pedestrian traffic because it was rough end the grass was long. Between the gutter and the right side of the bitumen strip there was a grassy area on which the grass was long. That area was not easily trafficable by pedestrians. It seems that it was used by motor cars for parking but there is no evidence that motor cars ran along it travelling between Grafton and Sheridan Streets. The frontage on the opposite side was entirely park land. Between the frontage and an open channel on that side was a well mown strip of grassland. There is no evidence that it was used by vehicles for passing to and fro on Minnie Street. It was the custom of Miss Stephens and the plaintiff, who were both on the nursing staff at the public hospital at Cairns, when off duty on a Sunday evening to go to the Presbyterian Church, and they usually went via Grafton, Minnie and Sheridan Streets, Upon reaching Grafton Street it was their practice to go across the bitumen and proceed to Sheridan Street. Miss Stephens, who was called by the plaintiff, gave evidence that the grass on the footway on the right side of Minnie Street was so long that they would have soiled their dresses if they walked through it. The evidence generally supports this objection of Miss Stephens to walking either on the footway or the other grassland between it and the gutter on that side. This is what determined their crossing the bitumen. If the grassland on which the park abutted was a footway women pedestrians, nevertheless, were reluctant to use it because of its proximity to the park and preferred to keep over nearer the bitumen strip. There was upon the evidence no peril from motor traffic to pedestrians who walked on the grassland to the left of the bitumen strip. The sixteen feet of bitumen was clearly a carriage-way within the meaning of the Traffic Regulations 1949. These Regulations came into force on lst February 1950. Mr. Gibbs contended that the gravel on either side of the bitumen did not come within 4, the statutory definition of "carriege-way" and that only the strip of bitumen came within it. This contention was raised because an issue is whether the plaintiff walked along Minnie Street on the edge of the bitumen or on the gravel. Miss Stephens, in her evidence, said that the plaintiff walked onthe gravel and that was the plaintiff's position when the motor car ran her down. As for herself, Miss Stephens said in evidence that she was walking on the edge of the grass at the side of the gravel and that was her position when the motor car overtook them. If I accepted this evidence of Miss Stephens I would have occasion to resolve Mr. Gibbs! point about the gravel. But the reliability of Miss Stephens on this issue is weakened by the fact that shortly after the accident she signed a statement, which the police obtained from her, in which she said that she was walking on the gravel and the plaintiff was walking on the edge of the bitumen, However, Miss Stephens' evidence as to where she and the plaintiff were walking when overtaken by the defendant's motor car is supported by the evidence of Mrs. Power, whom the plaintiff called as a witness. Mrs. Power was one of two ladies, the other was Mrs. Roche, who were walking on the area of mown grassland between the channel near the park and the bitumen. They were walking towards Grafton Street, while the plaintiff and Miss Stephens were proceeding in the opposite direction. Mrs. Power was walking on Mrs. Roche's left side, a little ahead of her, and Mrs. Power was about four feet from the edge of the gravel. These ladies had for many years been walking by that way to the Catholic church on Sunday evenings and had often met Miss Stephens and the plaintiff there, going to their church. MissStephens and the plaintiff were visible to Mrs. Power and Mrs. Roche until they passed them. These Ladies saw the motor vehicle approaching and« De according to them its headlights were normal. But + did not seem to me to be experienced enough to gin 5. opinion as to whether the headlights were satisfactory. I do not qualify what I have said above about the offside headlight. That is based upon the evidence of Constable Rose, a traffic constable, who tested the headlights of the motor car soon after the accident. Mrs. Roche was called by the defendant. She feared an accident because she realized that the defendant's motor vehicle was bearing down upon the plaintiff and Miss Stephens. The collision, in fact, occurred just after Mrs. Power passed them. Mrs. Roche being a little behind Mrs. Power saw it. It is my impression that Mrs, Roche had a better recollection of the whole affair than Mrs. Power. Mrs. Roche was definite that Miss Stephens was walking on the gravel, not on the grass, and that the plaintiff was walking on the bitumen, But I gather from Mrs. Roche's evidence that she meant that the plaintiff was walking on the edge of the bitumen. In my view, Mrs. Roche's evidence as to where the plaintiff and Miss Stephens were walking is more cogent and reliable than that of Mrs. Power. Miss Stephen's statement to the police on this matter is inconsistent with her testimony at the trial. I make no adverse finding as tothe honesty of either Miss Stephens or Mrs. Power. My conelusion is that the situation was, as Mrs. Roche deposed, namely that the plaintiff was walking on the edge of the bitumen and Miss Stephens was walking on the gravel, at the time of the accident. There are certain facts which, as Mr. Draney urged, support such a conclusion, One is that there was a wheel mark on the bitumen, close to its edge, which was made by the defendant's motor car, and the other, that a pool of blood where the plaintiff's head struck the roed was two feet in on the bitumen. But I do not regard these facts as certain guides to a correct conclusion in this disputed issue. I base my conclusion on Mrs. Roche's evidence. She said in her evidence that the motor car did not run off the bitumen. The motor car grazed 6. Miss Stephens' right arm and she was on the gravel, according to Mrs. Roche's evidence. I am satisfied that the plaintiff was, in fact, walking on the edge of the bitumen at the critical time. Whether or not the gravel shoulders of the bitumen strip were included, by the definition, in the carriage-way, the bitumen strip indubitably was. I therefore find it unnecessary to solve Mr. Gibbs' point whether or not the gravel was part of the carriage-way. The result of my finding is that the plaintiff was walking with her back to the traffic which might be coming from the direction of Grafton Street. The rider to the definition of carriage-way in the Regulations does not apply in this case, because the plaintiff could have walked on the grassland between the bitumen and the park. Accordingly, she committed a breach of Reg. 34 of the Traffic Regulations 1949 and failed to perform her duty under Reg. 36 to take due care and precaution to avoid a collision with any vehicle upon the carriage-way. It is contended for the defendant that the plaintiff's omission to observe Reg. 34 and Reg. 36 was not only illegal conduct but was also contributory negligence. On the other hand, it was contended for the plaintiff, that even if she was not observing the Regulations, her conduct. was not necessarily, in this locality, negligence (Henwood's Case 60 C.L.R. 438). Constable Rose, a traffic officer of police, came to the scene of the accident soon after it occurred. The plaintiff sets great store by what the defendant then said to that witness. First, it is right to state that the constable found the defendant very upset because his motor car had so seriously injured the plaintiff. The only passenger in the motor car was the young lady to whom the defendant was engaged and subsequently married. She gave evidence, being called by the defendant. In my opinion, she gave her 7. evidence truthfully but it does not seem to me to be of much importance. Secondly, that the evidence of Constable Rose establishes that the defendant was quite sober and had not been consuming any intoxicating liquor. Thirdly, the defendant and his wife were both cross-examined as to whether while driving in Minnie Street there was any behaviour between them that might have interfered with the defendant's control of the motor car. They both denied that there was any such conduct, I believe their answers to those questions. Coming to the conversation between the defendant and Constable Rose, the defendant told him that while driving along Mirmie Street towards Sheridan Street, he saw on his left, in front of the motor car, a woman, who was then about thirty-five feet away: that he immediately looked to his right and when he again glanced to his left he saw two women walking together in front of the motor car, and they were then about ten feet away; that he swerved to his right and hit one of the women but he was not sure whether or not the motor car hit her before the swerve took effect. In his examination in chief, the defendant gave this evidence: "Q. As you came down (Minnie Street), did you see some thing? A. I saw a figure. Q. Were you able to determine whether it was male or female? A. No. Q. Could you determine whether it was stationary or moving? A, It was walking with its back towards me. Q. What sort of clothing according to your general impression? A. Light clothing. Q. About how far in front of you was it? A. About 35 feet I thought. Q. At that time was your car on the bitumen? A. Yes. Q. Whereabouts were its lefthand wheels in relation to the bitumen? A. I would say the lefthand wheels were approximately three feet from the bitumen. Q. Have you any idea of the width of your car? A. It would be about four or five feet wide. Q. And its length? A, Round about fourteen feet. Q. Q. Q. Q. Q. 8. Whereabouts was the figure you saw walking, wes it walking on the bitumen or off the bitumen? A. On the edge of the bitumen I thought. If you had kept going and the pedestrian had kept gol on the line it was going, would you have collided with it? A. No. When you saw this figure in front of you, did you look somewhere else? A. I looked over the top of the figure into the park. You can see into Sheridan Street glancing back. At that time there was a very bright light. You glanced away? A. Towards the right. Where was the bright light? A. On the other side of Sheridan Street on the righthand corner. There was a garage there? A. Yes. You say you glanced to the right? AY Yes, Into Sheridan Street? A. Yes. At this stage how far along Minnie Street were you? A. About two thirds I would say. Did this light have any affect upon you? A. Yes, it is very dazzling. What did you do? A. I looked away from it and when my eyes got clear vision again I saw no more than one figure in front of me. Was the dazzling light there for a long time? A. No, for just.a short time. There had been two figures there? A. Yes. Where were the two of them when you saw them? A. The other was on the righthand side, a bit more on to the bitumen, Where was the car? A. About three feet from the edge of the bitumen. Was it still on the bitumen? A. Yes. Whereabouts was this figure you say was on the bitumen? A. Right in front of the lefthand mudguard. About how far from your vehicle? A. About ten feet or more. That is an estimate? A. Yes. When you saw this figure, what did you do? A. Swong to the right and applied the brakes so far as I could do it. Do you know whether your application of the brakes diminished your speed at all before the collision? A. No, I do not. Whet about when you bore to the right, do you know if there was any significant change in direction before you hit Miss Harris? A. No, I do not know rightly what took place. 9. Q. You did hit her? A. Yes, Q- When you hit her what part of your vehicle hit her? A. The lefthand mudguard, Q. What happened to her, did you see? A. No, I did not even see her. Q. She disappeared from your view? A. Yes. Q. Did you pull up your car at all? A. Yes. Q. Where did you pull it up? A. on the righthand side facing towards the houses." In cross-examination the defendant, after stating that his motor car was "about" three feet from the edge of the bitumen gave the following evidence: "Q. You could see clearly enough to see that the person was walking away from you? A. Yes, that is right. Q. You knew the pedestrian had its back to you? A, Yes. Q. You were not able to distinguish whether it was wearing a frock or trousers? A. No, I did not register all those things. Q. But when you first saw the pedestrian, - she, I think you can cali her - was not in the range of your headlights, was she? A. No. Q. I take it your headlights were on the dip beam? A. Yes. Q. And she was outside their range? A. At the time I first saw her, yes. Q. She was not within the light cast by the street lights, is that right? A. That is right. Q. It is obvious from that, it must have been a moonlit night? A. Not necessarily. Q. There was no artificial light on her from any source? A. No. Q. Had it been a dark night you could not have seen her? A. That would depend on a lot of things Q. On what? A. There is a park on the other side. A car could be on the other side, Q. But I thought you agreed there was no artificial light shining upon her? A. Yes. Q. Then it follows from that, it must be a moonlight night, does it not? A. I could not rightly say. Q. At any rate, you were quite sure she had her back to you and your lights had not reached her? A, Not at that time. Q. You knew she was on the roadway and you knew she did not know you were on it, that is right, is it not? A. do not know whether she knew I was behind her. 10. But if your lights had not reached her, she had her back to you so that it was a fair assumption that she did not know you were there? A. I suppose it would be. And you knew she was there? A. I knew that. And you were 35 feet away? A. That is approximate. You have given a good deal of thought to that particular distance, I take it, have you not? A. No, really T have not. Well, I would like you to give some thought to it now. I know I cannot pin you but that is an approximate distance, is it not? A. That is what I said but working out on figures it cannot be the proper distance, It must be longer. Why can it not be the approximate distance? Ae cannot really explain thst. You are not very clear as to how far back you were? A. No. But at the time you thought it was about 35 feet? A. Yes. You think now it might have been a little further, do you? A. Yes, I think it was. Now you realize it would not take you very many seconds, even driving at 25 miles an hour, to cover that distance, do you not? A. Yes. It would be a matter of split seconds; in fact i would be a matter of little more than a second if you were a distance of 35 feet? A. That is why I say it should have been more, Even if it were 70 feet it would take you two seconds to reach her, would it not? A. I do not rightly know. Well that can be worked out. But at any rate, at the moderate speed at which you were travelling it would not teke you seconds before you were on a pedestrian anywhere in that block? A. No. And you think you were, what? *s Bwo-thirds of the way down the block from Grafton Street? A. Yes, approximately. Did you at the time consciously think whether the direction in which you were going would bring you close to the pedestrian? A. I knew it would be reasonably close. A matter of what? Feet? » Yes. Where was the pedestrian walking in relation to the bitumen? A. Just on the edge. When you say on the edge of the bitumen, you mean off the bitumen, do you not? A. No, not off the bitumen. This pedestrian that you saw was not the pedestrian that you hit? A. No. Later you saw that there was another pedestrian side by side with the one you saw? A. Yes. il. Q. And you did not observe that until you were right upon them? A. No. Q. Had you been watching them you must have noticed them both much before you in fect did? Ae If I had been watching them, yes. Q. And how far forward do you say the beams of your lights were carrying? A. I do not know. I do not remember at the time, Q. They certainly would not have been carrying anything like 160 feet would they? A. No. Q. By the way, about these lights: You yourself had put a new bulb in the offside light, you say? A. That is right. Q. You are not a motor mechanic? A. No." Miss stephens said, in her evidence, that directly after Mrs. Power and Mrs, Roche passed the plaintiff and her "all of a sudden I just saw Nancy (the plaintiff) flying through the air in front of the car", Then she gave this evidence: "Q. Before you saw her flying through the air, did you have any warning by sight or sound that anything was going to happen? A. I did not see the car at all an I did not see the headlights. Q. When did you first see any light coming from the car? A. When it was about three-quarters of the way past me and I could see Nan in the headlights. Q- She at that ime was, where? A. She had been hit and was flying through the air. Q- About what distance did she fly through the air before she hit the roadway? A. I thought about 20 feet. Q. And did the car in fact touch you? A. Yes. I did not realize until the next morning that I had a graze on my right elbow. Q. And anything in addition? A. I had a pale blue paint mark on my elbow. Q. The graze was on your arm? A. Yes, on my elbow. Q. And there was pale blue paint in it? A. Yes. Q. And the cer was pale blue? A. Yes. Q. You did not realize at the time that you had been touched? A. No. Q. Did you notice what the cer did then? A. It seemed to follow her for a little way. Then it veered to the right and came back to the left hand side of the road in front of where she was lying. Q. I take it you then ran up to the plaintiff who was lying on the roadway? A. Yes. Q. What did you see? A. There was a pool of blood under her head and she was lying partly on the bitumen and her legs were across the gravel on the grass", le. Mrs, Roche, as has been already stated, actually saw the collision, She was asked in examination in chief: "Q.Where were the two of them walking? A. On the edge of the bitumen or perhaps the taller girl was walking on the gravel. Q.The taller girl would be whom? A. Miss Stephens I understand." Mrs. Roche said that when she first saw the motor car it was three feet in from the edge of the bitumen, I infer, because the plaintiff was walking on the edge of the bitumen and the motor car grazed Miss Stephens' right elbow, who was walking on the gravel, that the motor car came closer than three feet to the edge of the bitumen, Indeed the mark of one of its wheels began not more than two feet from the edge of the bitumen. This mark was probably made when the motor 'car turned to the right after the accident. Mrs. Roche gave this evidence in cross- examination: "Q. What made you so interested this time? A. Because I saw the car coming. Q. When you saw the car coming was its course directed straight at the girls? A. Directly behind the girls. Q. So that if it had continued on it would have struck the girls? A, I quite expected it to strike both girls but it only struck Miss Harris". Mrs. Roche said that after the motor car hit Miss Harris and threw her forward it must have swerved a little to the right or it would have run over her. This witness further said in cross-examination that there was nothing on the roadway to prevent the driver of the motor car seeing the plaintiff and. Miss Stephens and that there was no other traffic. She said that without the aid of lights she had been able to see the plaintiff and Miss Stephens "a block away". Iy the cross-examination of Mrs. Roche, there are these questions and answers' "@. Did you see the headlamps of the car actually shine on the girls at that stage? A. Yes. 13. Q. How far was the car away when you noticed that? A. It would be close to them because I remember it passing through my mind that the girls would see the lights behind them shining on then. The lights were shining on the girls and I thought they could see that. Q. Or did you see the girl in the light only when she was actually thrown forward by the car? A. No. They both had light dresses on. Q. Did you first see the girl in the beam from the headlights after she was thrown forward by the car? Ae Did I see her in the beam?, Q. Did you ever see one of the girls in the beam of the headlights? A. They were both in the beam. Q. And was that when the car was right upon them? A. Yes, Q. For what length of time were the girls in the beam of the headlights of the car? A. That is a bit hard for me to say because I was so much concentrating on it, expecting the car to swerve or the girls to move, and I thought that the girls might have seen the lights behind them and moved off the road. Q. But you could not give an estimate of how long the girls were in the beam of the headlights? A. No, T comid not", In all the circumstances a reasonably careful driver who was keeping a proper look out could hardly have missed seeing both the plaintiff and Miss Stephens at the point where the defendant said he first saw one of them, Whom he saw was either the plaintiff or Miss Stephens. If the defendant's evidence that he first saw a pedestrian is to be believed, it was clearly negligence on his part to look towards the Fight, and to continue on his course without slackening speed or sounding his horn. There was no reasonable cause for his looking to the right, because he had not reached a place where he could get a view to his right into Sheridan Street. He had in fact not reduced speed preparatory to crossing the intersection, I therefore find that the defermdant was guilty of negligence. The next question is whether the plaintiff was guilty of contributory negligence. I have said that I accept the evidence of Mrs. Roche that the plaintiff was walking on the edge of the bitumen. Admittedly, she was not Keep-ing as near as practicable to the right side of the bitumen 4. strip. Further it was not necessary for her to walk on the carriage-way at all, because it was practicable to walk on the grassland to the left of the bitumen strip. It seems to me therefore that the plaintiff was contravening Reg. 34 of the Traffic Regulations, I think that, by walking on the bitumen strip with her back to any traffic that might be coming from the direction of Grafton Street, the plaintiff was not observing the duty, to take due care and precaution to avoid a collision with a vehicle, which is cast by Reg. 36 upon a pedestrian walking on a road, Minnie Street was 6 "road" within the meaning of the Regulations. Besides contravening the Regulations, thevplaintiff was, to-a degree, not exercising ordinary care for her own safety. She had her back to traffic which might come from behind, if it were running on or close to, the course on which she was walking. She could not con- veniently keep a proper look out for such treffic. If it was necessary for her to walk on the bitumen, she could have walked on the right side. The bitumen strip was obviously provided to serve the needs of vehicular traffic not of pedestrians. There was no reason for the plaintiff to expect that it was as safe for her to walk on the left side of the bitumen as on the grassland next to it. The evidence is that the local practice observed by pedestrians proceeding on the carriage-way was to walk facing the oncoming traffic. The circumstances of this case are not similar to those in Alldridge v. Muleahey & Another 81 C.L.R. 337. I find that by walking on the left side of the bitumen in Minnie Street with her back to the traffic that might come from the direction of Grafton Street the plaintiff fell, to a degree, short of her duty to exercise reasonable care for her own safety. The next question is whether I should apply the rovisions of the Act relating to the reduction of damages in case of contributory negligence. The Act is "The Law Reform (Tortfeasors Contribution Contributory Negligence and Divisions of Chattels) Act of 1952", By s. 4 of that Act, 15. "Damage" includes loss of life and personal injury; and '"WFeult" means negligence, breach of statutory duty, or other Act or omission which ... would apart from the Act, give rise to the defence of contributory negligence. Section 10(1) provides as follows: "Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". I think that I should apply these provisions in this case. I cannot draw a "clear line" between the negligence of the plaintiff, on the one hand, that is, her walking on the bitumen strip without keeping a look-out for venicles, and the negligence of the defendant, on the other hand, that is, his failure to keep a proper look-out for pedestrians, including his looking to his right after' having seen a pedestrian on his left. (Marvin Sigurdson v. British Columbia Electric Railway Co. Ld. 1953 A.C. at p. 299. In my judgment, this "clear line" cannot be drawn here, because the negligence of the plaintiff continued after the defendant first saw the pedestrian, I find that the plaintiff suffered personal injury as the result partly of her own fault and partly of the fault of the defendant. The next question is: What should be the proportion of blame? In my opinion the defendant was much more to blame than the plaintiff. I have to consider the degree of departure of each of them from the standard of care of a reasonable man, Pennington v. Norris 96 C.L.R. 10. The plaintiff was a pedestrian and her fault was: first, she did not comply with the Traffic Regulations directing where she should walk when proceeding upon 16. Minnie Street; secondly, she incurred the risk of a vehicle overtaking her. It was a wide street having the bitumen strip with adjoining grassland and she was walking on the edge of the bitumen, There was ample room on her right for any motor vehicle which came along to pass her, keeping to its proper side of the carriage-way. The street was not a busy one. She was at fault in walking on the bitumen even though she was on the edge of it. However, if she had been walking on a course one foot to the left of that on which she was walking, she would not have been hit by the motor vehicle. It was more her misfortune than her fault that she was hit at ail, although her fault was a contributing factor to her injury. Her fault was but a small departure from the norm of an ordinarily prudent pedestrian, having regard to the locality. The negligence of the defendant was much more culpable than that of the plaintiff. It was an extremely serious breach of his duty, as a driver, to keep a proper look out. If he had been reasonably attentive to his driving, he would have seen both the plaintiff and Miss Stephens when, according to his admission, he first saw a pedestrian in front of his motor vehicle. He endangered her life by driving on and looking away from her. The lives of both the plaintiff and Miss Stephens were endangered by his negligence. If in truth he was dazzled by the light on the corner, it was only momentarily, and thet was not a contributory factor to the collision. In my view, the plaintiff's share in the responsibility for her injury was one-tenth. I think that the damages recoverable by the plaintiff in respect of the personal injury which she suffered in the accident should be reduced by one-tenth. I have now to perform the difficult task of assessing general damages for the injury. The plaintiff is a spinster and her home is at Craigie near Bombala in New South Wales, where her parents live and have a farm. She had tendered her resignation from the public hospitat at 17. Cairns a week before the accident. Her period of service there was about » year and she was contemplating returning home and then going with Miss Stephens on a working holiday to Canada and England to practise her profession as a nurse, She holds certificates issued by the Royal Alexandra Hospital for Children, the Royal Hospital for Women and the Tresillian Mothercraft Training School, ell of Sydney, covering medical and surgical nursing and midwifery. Dr. I. A. Lester, Superintendent of the public hospital at Cairns, to which the plaintiff was taken after the accident, examined her. The following is part of his evidence: "Q. Was she then unconscious? A. Yes. Q. On your examination what did you find? If it is necessary, you may look at the notes you made at the time? A. I can remember the broad outlines. She was unconscious, restless not completely comatose; her mental state was such that she responded to painful stimuli and she responded by movement and gesture when you shouted her nane. She had abrasions to the left side of her face, in the region of the left jaw and in the mastoid region behind the left ear. Q. What about the limbs? A. She had an abrasion in the right knee region and a large haemotoma (that is, a bruise) on the left side of the frontal part of the head. Q. Did -you examine her reflexes? A. Yes, I conducted a complete examination, Q. What did you find about her reflexes? A. The reflexes on the right side of the body, particularly in the legs, were increased in activity and in the plantar region they were abnormal, oO +» What does the abnormality of those reflexes indicate? A. An abnormality somewhere between the brain and the centres in the spinal cord responsible for it. In this case, as there was a head injury, thet would dicete damage to the brain. Q. How long did the plaintiff remain unconscious? A. she stayed at that level of unconsciousness until approximstely the dle of August, a period of three and a half weeks, before she started to say any words. But there wes a gradual lightening of her state of unconsciousness in that time. Q. Before she had regained that consciousness, did you perform an exploratory examination? A. Yes, we put a burr hole in thedamaged area of the scalp to see if there was any underlying clot which might be pressing on the brain, The exploration was negative. Q. Q. Q. Q. 18. Did you find any fracture of the skull? A. A small linear fracture' of the skull was found at the site of the burr hole but there was nothing pressing on the brain. It was necessary to tube feed the plaintiff. She could not swallow sufficiently until about 13th August. When was she first able to walk? A. We first got her out of bed in the middle of August - about 18th August. She needed an enormous amount of help to walk in those early stages. With what assistence did she walk? A. At first she had to beheld on both sides and later she was allowed to walk in a walking frame and by the time of her discharge from hospital she was able to walk by hanging on to the rails of the verandah. By August, were you able. to make sn appreciation of the state of her limbs? A. Yes. There had been gradual changes in her limbs. They had developed into a spastic condition which was at first most marked in the right leg, and eventually the left leg became involved,.and this reached a maximum in September and then lessened to a slight extent to the time of her discharge. Her right hand developed a condition of a gross tremor. That spread from the right arm to the rest of her body when she tried to do anything. Her left arm was weak and clumsy and she could not do anything with it. Were you able to make a diagnosis? A. Yes. We considered that the lesion, the damage to the brain, was in the brain stem, that portion connecting the surface of the brain to the spinal cord. What was the subsequent course of her history whilst she was under your care? A. She showed gradual improvement in all respects, Her physical condition was very good, she was able to eat and swallow and talk, as far as a simple conversation went. She was able to walk by hanging on to the verandah rails or in a walking frame. The spasticity of her legs diminished as did her tremor, and she was transferred to the Brisbane Hospital on 25th September, partly because it was one step on the way to her home which was south and also-to seek neuro-surgical opinion from specialists in Brisbane At the date of her discharge from your hospital on transfer to Brisbane what was her condition? What was the state of the spasticity? A, She still had a very marked tone in both legs and i1L walked with a spastic gait. Was one side more noticeable than the other? A. I think there was little difference at the time. Her condition had wavered but at the time of her di I think the spasticity was very much the same in both legs. charge Did the spasticity exist both in the arms and the legs? A. Yes. There was some spasticity in the arms but it was not so noticeable as in the legs, What about the speech of the plaintiff? A. It was very slow and difficult and had a sort of dragging character about it. She had to drag the words out 19. and they came slowly and with difficulty. It was hesitant and had periods of obstructions as far as I remember it. Q. I take it that before the accident she had none of this spasticity and her speech was normal? A. No as far as I can remember it was perfectly normal. Q. What about her left elbow? A. The condition of he left elbow was discovered in an X-ray. It had previous- ly been unsuspected but it showed abnormal bone formation in the muscle behind the left elbow. That condition is called myosit. ossificans. Q. How and where does it form? A. The injury causes the blood clot in the muscle, which clot is converted to bone. Q. What effect does thet have? A. It depends on the severity of it and wich joint is involved. Sometimes there is very little trouble, but it can cause limitation of joint movement. ere all these injuries she suffered consistent with her having been thrown to the ground when struck by a motor vehicle? A. Yes, I would say so. " Dr. K. G. Jamieson a neuro-surgeon on the staff of the base hospital at Brisbane to which the plaintiff had been transferred, made an examination of her on the 25th September 1956, The witness said: "Q. I found her then conscious, quite talkative, with gross impairment of memory, unable to calculate in simple arithmetic, and quite unaware, I think, of her present state at that time. She was- unaware of the severity of her injury. There was a marked weak- ness of the left limbs, both arm and leg. There were also signs of damage to movement of the limbs on the right side. The control of all limbs was very poor. Fine movements in the hands were almost absent. There was also a loss of painful sensation on the right side of the body. There was stiffness of the left shoulder joint and also the left elbow joint. Those were the essential features." His evidence contained these questions and answers Q. What did those signs and symptoms point to at that stage? A, They pointed to an injury to the brain stem and also to the surface of the brain on both sides. Q. Is the brain stem, in layman's language, the part of the lower base of the brain where it joins to the spinal cord? A. That is correct. Q. What is the length of that? A. The length of the brain stem is about 5 centimetres or 24" or 2" and through it pass all the major nerve tracks from the brain to the spinal cord. Q. What about the elbow? A. In the elbow, an X-ray showed that calcium had been formed in some of the muscles so that the stiffness was due to that deposition of calcium. 20. Q. Would that be something which might be consistent with am injury received when she was thrown to the ground by a motor car? A. It was due either to the injury or pe the degree of stiffness or paralysis of the Q. Is that myositis ossificans disabling? A. At that stage she had pain and stiffness in the elbow joint. That was treated with X-ray therapy and physiotherapy and it gradually recovered so that the stiffness Gisappeered, Q. What is the prognosis for that? A. The prognosis is good. She should not have any further trouble from that cause. Q. Ging back to the brdn injury, I think you treated her from September 1956 to October 1956? A. Yes. What sort of things were done for her during that time? A. Chiefly nursing care snd physiotherapy. Q. I suppose that after the injury you had a history of unconsciousness for some time? A. Yes, the history given us was unconsciousness for some days. Q. There would be no pain or suffering at that stage? A. Wo. Q. But what about after she regained consciousness? Ae There would be considerable discomfort for her in two things: the first was lying in bed with considerable stiffness of the limbs - she was unable to move - the chief object of the physiotherapy was to prevent excess pressure and bed sores developing; also, the pain from this left elbow and the ft shoulder joint in particular (the left shoulder joint was also stiff at that time). Q. Would that have lasted for some time? A, It lasted throughout her hospital stay. Q. At the time when you were treating her you formed an opinion as to her future? A, Yes, Q. What wes that? A. I thought at that time that it was unlikely that she would ever recover completely from the injury, that there would be consistent gross disability permanently but some improvement was possible. Q. Gross disability in what respect? A. The degree of control of movement was such that I thought she would never recover normal movement, particularly on the Left side, both legs and arms. The mental state was such that I thought she could not recover normal mentality. Q. You did not see her from 1956 until June 1960? A. I saw her last week. Q. Remaining for the moment in 1956, did you consider then that it was likely she would be able to go back to mursing? A. No, I did not. I thought she required some Trehabilitstion in a rehabilitetion unit in an attempt to train her for some occupation. Q. There are such centres set up by the Commonwealth Government for this very purpose? A.Yes. Q. Amd one of them is Warrawee in New South Wales known Q. © al. as Mount Wilga? A. Yes. At that stage, did you form en opinion as to the extent of her disability - in 1956? A, I thought at the time when I saw her that she was totally disabled from the point of view of employment end also totally disabled from the point of view of being responsible for her own well-being in the future. Did you examine her again on 9th June last, that is, last week? A. I did. . What did she tell you? A. She told me that she was much better but her chief disability was her inability to write so she had had to learn to use a typewriter; and also that her walking was not as good as she thought it should be. ShefSaid she was anxious to return to nursing. Did you form an opinion as to whether or not she appreciated her own present condition? A. I believe that she did not appreciste her present position at all. What did you find when you examined her? A. I found that her memory was quite poor both of recent events of the last few days and also of events of years ago; quite simple mental arithmetic was extremely poorly performed - she was quite inaccurate; thst her mood changed rapidly from one of almost joculerity to one of tears and depression; that physically she was still paralysed or had some degree of weakness down the left side of her body; there were signs of damage to the control of movement of both sides of the body; and all of her movements were un-co-ordinated and jerky in all four limbs, When you gave her this mental arithmetic test, did she do it quickly or slowly? A. She did it very slowly and very deliberately but still made frequent errors. What about her speech at present? A. Her speech is very slow and deliberate and the tone of it is quite monotonous. How does that compare with what you saw in 1956? A. I think that is much the same as previously. What about the question of co-ordination of her limb movements? A. It is a little better now than it was. She can now walk though her balance is quite poor. But there has been some improvement in co-ordination. Have you heard that she has had a number of falls? A. She did not tell me that, but I have heard since that that is the case. Would you think that falls world be likely to result from such a.condition? A. Ues, certainly - her control of her legs is so poor that she cald trip over easily. What about the fine movement of her hands? A, They are very poorly performed and the control of her legs is poor. When she walks her balance is poor, she tends to drag the left leg, she walks with her feet wide apart in an attempt to control her balance. é Are those signs you have described to us consistent with the type of brain injury that you diagnosed in 1956? A. Yes. Q. How would you characterize such a brain injury? A. It is a brain stem injury of great severity. Q. Would there be lixely to be any loss of brain tissue? A. There is likely to be loss of brain tissue both in the stem of the brain and also over its surface. The surface of thebrain is known as the cortex? A. Yes. oO Q. Do you sometimes get an atrophy of the cerebral cortex with this type of injury? A, Yes, I think this patient has atrophy of the cerebral cortex of con- siderable degree. Q. Thet would be that the cortex would become reduced in size and would not be performing normal functions? A. That is correct. Q. What about the future for her? A. I think it unlily that she will improve much further. I think it possible that she may get some improvemént in control of her limbs and also perhaps in memory to some extent, but this improvement at this: stage will be quite minor - Ido not think it will make any significant difference to her ability. Q. Is she likely to remain in much the same condition as this for the rest of her days? A. Yes, I think it is likely. Q. Will she ever be fit to carry on a nursing career? A. No. Q. Or, as far as you can teli, have any type of employment at all? A. No, I cannot think of any employment she could do regularly. Q. We have heard of emotional instances, Were you told about any incidents where she had become violent? A. I had been told there was frequent difficulty at home. She resents her mother's attempts to help her, relying much more on her father. And I saw myself this emotional imbalence, this emotional fluctuation which occurs quite rapidly and without any reason, Q. You sew that yourself during your own examination? A, Yes. Q. Is thet likely to change? A. That is likely to remain very much the same. Q. Doctor, what is known as a hemiplegic, in this case --- ? A. Hemiplegic. She has both weakness and stiffness of the limbs on her left side. She has also on both sides signs of poor control of movement so that even on the right side there is a minimal degree of this hemiplegia. The major signs are on the left. Q. Do those signs point back to the same part of the brain, thot tem? A. They could point to the surface of the brain or the brain stem. Either give the same result. They have resulted from the injury. Q. Doctor, so far as managing her own affairs is concerned, what would be your opinion as to that? Would she need assistance? A. I think she would certainly need assistance, Q. Would she need control? A, I think she needs some degree of control and advice. I think thet her method of calculation, her managing ability, her mental ability, is such that she could not make important decisions without direct advice." Dr. J. McK. Sutherland, a neurologist at the Brisbane General Hospital examined the plaintiff on the llth June 1960. "Q. Dr. Sutherland, when did you exami He gave this evidence: e the plaintiff and what did find on examination? A. I found, Sir, that she displayed consid ble emotional lability in that she cried on several occasions during my examination, I found further that her memory for recent events was impaired and her reasoning sbility I think was not normal. Her speech was high pitched, rather monotonous, and there was a degree of facial assymetry, that is, one side of her face being different from the other. On further examination there was definite evidence of damage to the motor pathways running from the brain through the spinal ) cord, this being more marked on the left than the right. side. The co-ordination of her arms was impaired, more on the left than the right, and her writing was likewise impaired. There was some impaired sensation in the left leg and to a lesser extent the left. face. I found she was somewhat obese compared with the average and I understand her weight has increased. Is there some significance attached to obesity in this regard? A. Yes. Shall I say there may well be significance, In damage to the brain, the stem involving portion of the brain called the thalamus, weight increase is a condition, Did you notice any tremor? A. Yes, In the movement of her left arm, the intention tremor was noticed, for example, on asking her to touch her nose, - the movement became disjointed. Did you subject her to handwriting co-ordination tests? A. tes, Sir. I asked her to write, I think. the name Brisbane, with her right hand, - she is a right handed person - and this was very poorly performed. IT also asked her to perform what we call the whorl test, a describing of a circle of increasing diameter, and this was likewise badly performed. What was the purpose of that? A. It indicates, your Honour, inco-ordination of the hand. Whereas we can describe a very nicely executed circle of increasing diameter, a person's inco-ordination will show fluctuations in the circle. This examination was on the llth June 1960? A. Yes, that is correct. As a result of that examination what opinion did you form as to the plaintiff's state? A. I think she had definite mental changes, impaired memory and evidence of damage to the brain stem as distinct from the Me brain itself, and that is evidence of the damage to the motor pathways and to the inco-ordination of the hands. Q. Besides the brain stem did you form any opinion as to whether shefuffered any damage to the brain itself? A. Yes, I think her emotional instability and her impaired memory and her faulty judgment ere all symptoms of brain damage as distinct from brain stem damage. Q. Could you express an opinion as to the degree of Miss Harris! disability? A. I think it is a very considerable degree of disability. Q. Is she capable of continuing her occupation as a nurse? A. Most certainly not. Q. Can you think of any other occupation in which she could engage? A. It is possible that she could engage in unskilled manual work under supervision. I think she would find great difficulty in obtaining employment in the open labour market. Q. What is your opinion as to her capacity to manage her own affairs? A. I think her impaired judgment and her emotional instability would render that a hazardous undertaking. Q. Is there any curative treatment? A. Rehabilitation is the only treatment for this type of condition and I understand she has alveady had that et Sydney. Q. In your opinion is she likely to derive any further benefit from further rehabilitation treatment? A. T do not think it is likely to bring about a benefit. Q. What is the prognosis, is this condition likely to improve or not? A. I think after the lapse of time,nearly four years, further improvement is very unlikely. I do not think that she will deteriorate very much or that she will deteriorate at all unless epilepsy develops and as you know epilepsy is a known complement of severe head injuries. Q. At present are there any indicdions of post traumatic epilepsy? A. Very slight. She informed me thet she fell very readily. That is probably due to her impaired balance. On one occasion she tripped or fell straining her ankle but has absolutely no recollection of the event or of being taken to hospital for treatment of her ankle. This suggests one of two conditions, either she had an epileptic seizure which occasioned the fall or the fall resulted in an emotional upset and hysterical condition, Q. Hither of which would be due to the mental condition she suffered? A. I agree, Q. Have you taken an electro-cephelograph of her brain functions? A. Yes, it is a borderline normal record. Q. It was taken today? A. Yes, it was done today. There is no focus of borderline activity. Q. Whet is the significance of that as regards post traumatic epilepsy? A. It wuld not exclude epilepsy imthat the record between seizures may be normal in a considerable proportion of cases but om the other hand I think it would indicate that there is no active discharging focus of epilepsy. Q. So you are unable to say whether she has post traumatic epilepsy or not? A. I am unable to say that she has post traumatic epilepsy but that would not exclude the development of epilepsy in the future. It can occur several years afte the actual injury. Q. Would you describe to me what happens in epilepsy and its effects? A. Epilepsy is a symptom of abnormal electrical activity in the brain resulting in disordered behaviour or state of consciousness. Q. And as to the demage to the brain itself, is there any possibility of the brain tissue or the brain stem regenerating? A. No, damage to the centraYnervous system as distinct from the peripheral nerves is irreparable. Once theherve tissues are damaged to a degree which this patient displays I do not think any improvement is likely". Another medical witness was Dr. Blomfield of Bega. He is a distant relation of the plaintiff and knew her for ea long time before the accident. He said that she had been on the nursing staff and had done private nursing at his home, The witness gave this evidences "Q. You know that in due course she left Bega and went up to Cairns, and I think you her again in December, did you not, after the accident? A. Yes, on the 2nd December 1956. Q. What did you notice about her at that time, Doctor? A. She had a completely changed voice. It was a slow, scanning voice, Her mental outlook was euphoric. Q. What does that mean, Doctor? A. It means she was very pleased with herself and life in general. She had paralysis or partial paralysis of both legs and arms, the left side being the worst. She had a pronounced tremor in the right hand and she walked with a very unsteady spastic gait. Q. Whet about her right hand? A. The right hand had a marked tremor. Q. You say she was what you called euphoric. Tht means she was very happy and pleased with self? A. She was very happy and pleased with herself and said she would be back at work in a few weeks time. Q. Did she appear to appreciate at that time the seriousness of what had happened? A. In my opinion she had no idea of the seriousness of her condition whatsoever. Q. Do you remember giving her a newspaper to read at one stage? A. Yes, on the 7th December was the first time she actually read a few words from a newspaper Q. So far as any treatment was concerned, was any treatment given to her in Bega? A. She was treated by Miss Gates, a physio-therapist in Bega, for several months. 26. What sort of physio-therapy would that be? A. Active movements and massage. For the purpose of dealing with the hand? Ae Dealing with the hand and the legs as well. Since then what has happened, first of all in respect to her right hand? A. Well, the tremor over a few months increased to a disabling degree and has gradually decreased since. What do you mean by a disabling degree? A. She could not cut her food, she could net stir her tea and could not write, could not carry out any purposeful movements whatsoever, You say that reached a peak and has improved? A. It hasAmproved. What about writing with that right hand? A. She is stiil unable to write. . Do you know whether she is able to do any typing on a typewriter? A. Yes, she can type. Whet are the results? A. Fairly satisfactory. Very slow. What is the position at the moment about her walking? A. She is still unsteady on her feet. On level ground she walks reasonably well; on a downward slope she gradually gathers speed and her legs H throw out, especially the right one; she H frequently has falls if the slope continues for any, length of time. What about the speech you have told us of? A. It has improved but is still a little slow and a different intonation toher previous speech before the accident. You have heard her speaking this morning, have you? A. Yes. i Is that different from what it was before? A. Yes,/ it is different. | In what way? A. It is slower, move hesitant, and a different tone, What happens in relation to her speech when she gets. excited or tired? A. She frequently becomes unintelligible, you cannot understand her. Well now, so far as her left foot is concerned, what is the present position of that? A. She has 4 partial paralysis of the left foot. Does that cause this clumsy movement or is it one of the causes of it? A, It is one of the causes | of clumsy movement. She has inco-ordination of the right foot as well. Has there been any improvement in her physical state in the last twelve months? A. No. What about her mental condition after you first | | Le 27, saw her in December 1956? A. It changed. Q. You told us about this euphoria. Then what? A. It changed from euphoria to depression. The depression has been getting gradually worse. Q. Do you mean depression in the sense in which a psychiatrist would use it? A. Yes. Q. What did you observe that makes you diagnose that condition? A. Well, she speaks of throwing everything away, Life is not worth living and gets very very depress- ed in all her actions. Q. What about from an emotional point of view? A. Her emotional state is particularly unsteble. One minute she will be laughing and chatting, the next few minutes she will be crying and it suggests she will reach the screaming pitch and even tear her hair. That has happened on "numerous occasions. On another instance, on February 27th this year, her mother told her not to pick up two glasses from the teble. Q. You were there, were you? A. I was there. She picked up one glass and stamped out of the room, paused at the doorway, held up the glass to throw it at her mother, thought better of it and walked outside. Q. Have you seen any other instances of that sort? A. One instance late last year. She asked me about her future. I told her I considered that nursing was out. She asked me what she could do as an alternative. I said I did not know. She jumped up, tore her hair, screamed and stamped out of theroom, Q. Did she ask you that again? A. She asked repertedly every day the following week. Q- Whether she would be able to nurse again? A. Yes, whether she would be able to nurse again. Q. Was there an example tt morning of an emotional condition? A. I was walking into breakfast this morning and noticed she was crying at the table as I passed. Q. At the hotel at which you are staying? A. Yes. Q. What about the question of concentration on any particular job? A. Her concentration is poor, she cannot concentrate for more tharfive or ten minutes, she has to start again. . You told us you had had opportunities to observe her y PP ; : knitting and sewing before the accident. Have you observed that since? A. Yes, Q. What is the position now? A. There seemed to be a lot of dropped stitches and holes in the knitting. Q. How would you describe her from the point of view of toleration of other people? A. She is very intolerant now. She has a rather peculiar phase, she will not associate with anyone unless they belong to a profession or some other high job. Q. Was that particular phase in evidence before the accident? A. No, she used to speak to anyone. Q.What about her religious life before the accident? 28. A. Before the accident she was a very constant church- goer. She has only been several times to my knowledge since and on being asked to go she has refused to do so on several occasions. Qe was a medical man, whet is your idea of what the future holds for her as regards improvement or otherwise? A. From a physical side I think she will remain stetionary or perhaps improve slightly. From a mental and emotional side she may deteriorate a little. At present she still has-the hope that she may nurse again, I think when ultimstely it is dinned into her that she will not nurse again, she may deteriorate from the fact.that Life holds nothing for her," Dr. Graham of Sydney, a consultant, for the Rehabilitstion Section of the Social Services Department of the Commonwealth said in evidence that the plaintiff was an inmate of a rehabilitation centre at sydney from August 1957 to April 1959. The following is part of his evidence: "Q. What is the object of having s patient attend at the centre? A. The object is to see whether the patient can be returned to some remunerative occupation or be trained for some remunerative occupation. Q. Did you succeed in that regard with the plaintiff? A. No, we failed. Q. When you discharge patients, do you give them a particular grading on discharge? A. she was dis- charged because it was considered that she was incapable of being rehabilitsted. Q. When you discharge a patient under those circumstances you give them a particular grading? A. Yes, they are stated to be N.R. Q. Short for what? . Non-rehabilitatable. & On the occasion of your first interview with the plaintiff on lst May 1957, what did you discover on your examination? 4. I found she had a post traumatic amnesia of about five months and her main complaints were difficulty in speaking, in walking and in using her upper limbs. Q. What do you say about her speech? A, Her speoch at that time was slurred anjhesitant. nat about her gait? A. Stiff legged, unco-ordinated and slow. Q. What about the upper limbs? A. there was no co-ordination in the use of her upper Limbs, more marked on the right side tha the left. Q. Was she able to perform simple services for herself? A. She could dress herself and feed herself and attend to her toilet requirements but she could not write or hold a cup at that time. Q. What else did you notice? A. She would break into tears apparently without reason. There was some facial asymmetry and she would distort her face when speaking. She also had an intellectual defect and to me the worst of that was the seriousness of her inability to see the extent of her own disability. 2sa, She could not understand that she could not return to her profession. Q. What did you observe in 1960? A.Compared with the first examination, some improvement hed taken plece all round. Her speech was now readily understandable although inclinde@ to be slurred and monotonous, Her gait had improved though there was still a slight limp and a slight body tremor when she walked. Q. What ebout the upper body movement? A. Trt had also improved, There was only a slight tremor in the upper limbs. She still had great difficulty in writing and was using her left hand still for that purpose, Q. Yid you notice any mental lability on this occasion? A. She did not ery as she hed done in the past. Q. Were you able to form any opinion es to whether her emotional state had settled down? A, From my own observation on that day I thought she had improved somewhat emotionally but her. intellect Ifelt was still defective, Q. What about the facial asymmetry? A, There was still some but she was not contorting her face as she had done et first. Q. What was your idea of her condition on 13th January 1960? A. I thought that her intellectual defect was the worst part of her condition. She seemed to be quite dependent in her outlook and was looking to me to help her find training and employment. She still had no ideas as to what employment apart from nursing she could undertake and she still had to have it explained to her that she was unsuitable fornursing, Q. On how many occasions did you explain to her that she was unsuitable for nursing? A. It would have been more than half a dozen. Q. Did she seem able to appreciate what you were saying? A. She would understand at the time, but the next time I came to discuss it with her I found that what I had said had made no impression. Q. What would you say about her concentration, reasoning and understanding? A. Ithought when I saw her in January that her ability to concentrate and understand was still poor. She was still uneble to accept her disability. Q.Cen you tell His Honour whether in your opinion she will ever be fit to perform the duties of a nursing sister again? 4A. In my opinion, no. Q. Can you think of any occupation in which it is likely that she ever will be able to engage? A. Now Q. Did you endeavour to explain to her the effects that a disability wouldve on her future, that is to say she would not be fit for any occupation? A. I have never told her myself that she would never be fit for any occupation, The hope has always been there that she might become useful but there is no evidence that she is becoming or will become capable. Q. What would you say about her emotional state in relation to her feelings as to disability? A. I'm afraid I do not quite understand thst question. Q. Did she accept her disability or resent it or what was her attitude towards it? A. She has never been eble to accept it. I believe she has never been able to regard it objectively and say, 'I have got this, what can I do with it?? She has always taken the view that she is going to get better or that she is fit at the moment to do nursing, Q. While Miss Harris was an inmate of Mt. Wilga she was given an opportunity to perform a number of tasks? A. Yes. Q. Was she asked to help as a nursing orderly at one stege A. Yes, towards the end of her period there, Q. What was the object of that? A. To make her more contented, We thought she might be happier doing something which had relation to her previous occupation and also to test her ability to work. Q. What was the result of allowing her to act as a nursing orderly? A. It was not successful. It was found she had to be supervised with almost all her work and guided and she came to be looked upon as a hindrance to the work rather than a help. Q. What were her duties as a nursing orderly? A. She had to help some of the disabled patients in andéut of bed and perhaps carry food trays for those who were sble to get out of bed, simple tasks of thet nature, Q. Did she also commence to learn typing at the centre? A. Yes, she received instructions in typing. Q. What was her progress in that regard? A, It was very slow. She was at it for about nine months before she had learned the keyboard. She continued for 12 months in all with that sort of training. At the end of that time the instructor was begging me to take her off it because she was upsetting the ronainder <8 the class with her emotional outbursts. She was/slow she was holding people back. She really did not do well at it at all. Q- In your opinion is she able to manage her affairs by herself without assistance? A. I do not quite under- stand that question. Q. Is she able to perform the everyday business of living such as attending to her toilet requirements and dressing? A. Yes, and she can feed herself, Q. Is she able to live her own life looking after herself in your opinion? A. I think if she were completely on her own she would not do very well. Matters of decision in regard to everyday life would be difficult for her, managing money and as 'to living at certain places and so on, Q. Could she fend for herséf if left without her parents in your opinion? A. N%, I do not think so", 30. This witness said thet on the 13th May 1960 he received a typewritten letter from the plaintiff who was then at her parent's home at Creigie. This letter wasproduced and read by the witness. He said in evidence that the letter showed thet there had been no improvement in the intellectual state of the plaintiff since he last interviewed her in January 1960. The witness expressed the opinion that there was no occupation in which the plaintiff could engage. As I said above the plaintiff was a witness. A part of her evidence is as follows: "Q. Now you know you were involved in an accident in Ceirns 1956. Do you remember anything about that? A. No, I do not remember anything stout it. Q. when was your first memory after it occurred in July 1956. What do you first remember after that? ALT think when I was going down to Brisbane I had a vague memory for a short time, that was 10 minutes afterwards. Q. When was your first clearer memory after that? Ae I do not really know", She was asked about an occasion at Bega, after she returned home when she fell and hurt her ankle and it was subsequently X-rayed. She said she did not remember anything about that matter, In cross-examination she gave the following evidence: Q. Your father runs some sheep? A. Yes. Q. And does a bit of farming? A. Yes, Q. Do you help at all on the ferm? A. I do what I can. Q. I think you said this morning something sbout looking after some sheep, what work do you do on the station? A. I just take dad's morning tea to him if he requires at Q. Do you do some work outside with the sheep? A. Only to go with dad to see where he is going. Q. Do you do any housework at home, a bit of cooking? A. Not much. Q. You are still a reasonably good cook? A.I can cook. Q. You like cooking? A.Yes. Q. Does your mother go away at times? A, At times she does. Q. For several days at a time? A. Yes. 31. Q. When she goes away, do you look after the household? A. Yes. Q. You do the cooking andthe housework? A, Yes", She said 1 cross-examination that she likes reading; her normal recreat.on is listening to records. She also said that she has now to type her letters and thst she cannot dance. Miss Stephens to whose evidence I have already referred described changes that she had observed in the plaintiff since the accident: "Q, Have you noticed the difference the difference in the ecndition of Miss Harris since the accident? A. Yes, there were very definite changes. Q. What have you noticed physically? A. Nancy has a sl paresis of the right side of the face and this seems to draw her mouth back and it is making her teeth much more prominent. She has a very definite tremor of the right hand which is much worse when she is upset or agitated. Her walking is badly affected and she is much more heavy-handed than she realizes - she thinks she is just placing her hand on you lightly but it is quite a thump that she gives you. Q. What about her speech? A. Her speech has changed a lot. The tone of her voice is quite colourless now. Her speech has coarsened. She would never use slang words and I had never heard her swear before, but she does occasionally now. Q. What would you say about her nature or personality? A. Has there been any change that you have observed in that since the accident? A, Yes. Q. What have you observed? A. ney was a very competent nurse and very kind, considerate and tolerant of her patients, but now she is very critical and sarcastic and shows exactly what she thinks and she does not realize that she is embarrassing people. Q. Did you observe her habits in relation to her religion before the accident? A, Yes. Beforehand, Nancy whenever she was off duty on a sunday would always go to Church and she would read her Bible quite a lot, but I asked her about two years ago whether she ever read jher Bible now and she did not recall that she had ever read it before. What about her sense of humour? | Did she have a sense of humour before the accidmt? A. Yes. Q. What is the position about that now, in your observation? A. Naney seems to find most things amusing now whether they really are or not - she always laughs about any remark that she makes. Q. Before the accident, how would you describe ha disposition from the point of view of excitability? A. She was a very calm person and never became over- excited, Q. What have you observed since the accident? A. The 32. least little thing upsets her and she becomes very excited and upset. Q- Beforg the accident was she given to fits of temper? A. Wo. Q. Have you observed that since the accident? A. Yes. Q. From your observation of her, have you noticed whether she is content with or reconciled with her present situation or not? A. No - she cannot accept it. Q- Before the accident, did she engage in sport? A, Yes, she played quite a lot of tennis and we often went Swimming, Q. Have you ever seen her play tennis or swim since the accident? A. Ne, I have not. Q. Have you ever invited her to play tennis? felt she was incapable of i Q. Did you ever ask her to join you in swimming? A. No, Q Was ace good at sewing, knitting and tatting before the ent? A. Yes. Q.Did she engage in that a great deal? A. She always had a piece of fancywork or tatting in her hand. Q. Have you observed her sewing and knitting and tatting since the accident? A. Yes. Q. What can vou say about that? A. She finds the tatting beyond her, she cannot concentrate enough for it and her sewing is not nearly as neat as before the accident. She takes very much longer to do them. Q. What did you observe as to her attitude as a nursing sister before the accident? A, It was Nancy's whole life, she wanted only to be able to help people. Q. I think you have said that you have observed that Miss Harris indulged.in fits of temper since the accident? A, Yes. Q. At those times has she ever said anything to you, in particular has she said anything about her future or her life? A. She feels she is so useless. Q- Will you put it in Miss Harris' own words? A. Nancy has told me that she feels useless and that she has no goal in life to which to work. Q. Has she ever said anything to you about suicide? A. She has often said she had not the courage to take her own life and she wished she had. Q. She has said that to you? A. Yes, in the last couple of days she has said that she wished that she had been killed.". Matron Gould who in 1956 was at the Cairns base hospital said in evidence that the plaintiff was a third year Ist Grade, double certificated sister with certificates for general nursing and midwifery. The certificates were put in evidence, She said that while the plaimiff was 33¢ nursing at the Ceirns base hospital she was characterised by a calm disposition, efficiency and devotion to duty and thet her recreations were teanis and swimming: That her speech was refined and thet she attended church regularly. It is important to mention these matters because since the accident the plaintiff lacks such characteristics. A passage in the evidence of Matron Gould'is as follows: "Q, You remember her coming into hospital after her accident? A.. Yes. Q. You know she was unconscious for some time? A. Yes. Q. I suppose for the time she was in hospital you saw her regularly? A. I saw her at least twice a day. Q. What was the position after she became conscious again, for instance, as to feeding herself? A. Up until she left hospital she was not really very cepable of feeding herself. We did try to encourage her but because of tremor of her hands she made rather a mess. She was not really capable of feeding herself properly. Q. Up to the time she left hospital, what was the position about her walking? A. Her sense of balance was poor up until she left hospital. She could manage to get along holding on to the verandah railing and with somebody holding her, but she could not walk very far and she was never able to walk without being supported on both sides, Q. What about her speech? A. Her speech was very slow and very slurred. Q. I think you have seen her at the Court today? A.I saw her for about half an hour for the first time since she left Cairns Hospital. Q. Is there any difference in her speech now? A. I notice a vast change in her altogether. While I noticed a big improvement in one way, I feel that she has not made any advance for the better. Q. In which way is she improved? A. She can walk which she was not able to do but I noticed that she has a sort of stilted walk as though shedrags her right leg - her walk is not a normal walk. Her speech is still a bit slurred at times and she seems as though she talks out of the corner of her mouth. . Did she talk that way before the accident? A. No, she wes of quite normal speech and opened her mouth to speak. Q. Did she talk that way when she left the Cairns Hospital? A. With her mouth closed, yes. Q. What about her manner and talk generally? A. She seems to have become very childish and she tends to laugh more or less with a titter without any due cause. Q. Was she like that before? A. No. Q. Did you ask her whether she could remember any things? 3H. A. Yes, I asked her could she remember the accident and she said she could not remember anything about the accident. She did remember some events which happened prior to the accident, she was able to give me 'theham es of some of theStaff and where they were, but oe told me she could not remember anything abouts the accident. As to her leaving Cairns, she just remembered the plane trip down but did not sctually remember leaving the hospital. Q. Did she say anything about what she was coing? ALT asked her what she was doing and she said she was helping at home. Q. So far as the question ofresuming nursing again is concerned, is she fit for it at the present time? A. I would not think so. So far as you can tell, is she likely to be fit for it in the future? A. I feel that she would not be fit ever to resume nursing, both because of her physical incapabilities and also I do not think her mental state would be good enough ever to resume the responsibility that nursing demands, Q. Would you feel justified in employing her at a hospital? A. tlo, I am sorry, I would not be able to." This witness gave evidence as to the range of salaries paid to matrons of hospitals. Her evidence on this subject is important because having regard to the plaintiff's qualifications and ability as a nurse she might in the future have become a matron of a hospital. Matron Gould's evidence was that a matron in charge of a hospitel with one hundred beds was about £17 per week and for a hospital with two hundred and fifty beds about £19 per week. The plaintiff's mother gave evidence. She said thet her age was 59 years and that the ege of her husband, the plaintiff's father, was 70 years. This evidence is not without importance because according to the medical evidence the plaintiff will in thefuture need somebody to look afterher. Mrs. Harris produced a photograph of the plaintiff taken when she was 23 years of age. Allowing for the passage of years there was a startling difference between this photograph and the pathetic appearance which the plaintiff presented in the witness box. The following evidence was given by Mrs. Harris: "Q. What do you notice about her speech now which is is different to what it was before her accident? quite often have difficulty in following her speech, Q. Why? A. It is slurred and indistinct. Q. Have you noticed anything ebout the way she walks at home? A. Yes, it is very uncertain and she has numerous falls How does she manage when going forwards down a slope? A. She goes very fast and is prone to stumble. o Q. Does she have many falls? A. Yes. Q. Was there an occasion when she had to be taken to hospital for an 4-ray ofher ankle? A. Yes. Q. How long ago wes that? A. 1957. Q. Did she appear to you to know why she was going to the hospital on that occasion? A.Yes, the ankle was worrying her. Q. Did she realise how the injury to the ankle had happened? A. Yes, she knew she had fallen at the time. Q. Was there another occasion when she fell some few weeks ago? A. Yes, recently. Q. What happened on that occasion? A. She was walking in a padcock and misjudged an obstecle and fell heavily and was badly bruised, Q. Passing from that to the use of her right arm since the accident, what have you noticed about thet? A. She has difficulty in controlling it, it shakes. Q. What happens if she is carrying a cup of tea or some- thing like that? A.It spills. Q. Has that happened? A.Yes. Q. More thanénce? A, A number of times Q. Sor far as churchgoing is concerned, is there any change in that? A. Yes, she comes with us. Q. What difference do you notice? A. She comes more to accompany us, to save worrying us. Q. What have you noticed about her general temperament or disposition since the accident, is she the same girl as she was? A. No. Q. Tell us what differences you have noticed in her general disposition? A. che is not our hanpy girl. Q. Does she become upset in any way? A. Very easily. Q. What sort of things happen? A. She becomes upset when things do not go as she wants them to. Q. In what way? A. She cries and gets very distraught. Q. Does this happen frequently? A. Yes, quite frequently. Q. Does she show this in any physical way? Ae Yes. Q. What happens? She throws her hands around and ruffles her hair and stamps off to her room and shuts the door ». and will not have anything to do with us. Q. Before the accident, did anything like that happen? 36. A. No, she was very even tempered, a very sunny girl. Q. Have you noticed whether or not she reads? A. Yes, she reads. Q. That sounds like a qualification, what do you mean? &. She is not interested in modern things or in the newspapers. Q. Do you notice anything ebout the manner ofher reading? A. She starts many books and wants to finish but they are returned without her finishing them, She cannot concentrate. Q. I think you have noticed a change in her knitting and sewing? A. She cannot do the fine work she used to do and she cannot concentrate on it for long. Q. What happens when sheStarts a piece of knitting? A. She puts it away and gets something else, Q. Is the knitting well done or badly done? A. She knits simple things but not the fine work she used to do. Q. Has she had any employment since the accident? A. Only from the rehabilitation centre and she went to a friend for ten days to look after the children when the mother had a new baby. Q. Does she do typing work at home? A. Yes, she has a small typewriter. Q. Have you watched her typing? A. Yes. Q. How does she get on? A. She is very very slow. Q. When she starts a letter, what hanpens as a rule? 4A. She leaves it and comes back later and it may take days to write. Q. Does she ever write letters for her father? A. No. Q Can you remember an incident concerning a glass of some sort? A, Yes, down at Dr. Blomfield's, Q. Were you there? A. Yes. Q. What happened? A. She picked up two good glasses in one hand and a pile of plates another. I went to take the glasses from her and she became very irate. I took one glass from her and she made a motion to throw the other one at me. Q. She did not throw it? A. No, Mrs, Blomfield came in." This witness was cross-examined as to whether the plaintiff was able to assist her father on the farm at Craigie. In my view the result of the cross-examination is that the plaintiff is no longer of any real assistance to him in running the farm. A statement was received in evidence showing that in Queensland a nursing sister of the same grade as the plaintiff, on the staff of a public hospital, in July 1956 received £11. 12. 0 per week and in May 1960, £12. 18. 0 per week. To this salary was added an allowance of 5/0d. perweek. It appears from the evidence that the salaries of nurses in New South Wales was higher than in Queensland. It also appears that nurses in public hospitals receive small additional payments in certain cases, which the plaintiff was qualified to receive. It also appears that the remuneration of a nurse engaged in private nursing may be higher than that of a nurse employed at a public hospital. According to the evidence the retiring age for nurses employed in public hospitals in Queensland is 65 years. Thereafter, of course, a nurse could take a position in a private hospital or be engaged for private nursing. No medical evidence was led on behalf of the defendant nor was any witness called by him to give evidence on the question of damages. The references which I have made to the medical evidence shows that all the doctors were agreed that the plaintiff had suffered an extremely serious injury to her brain. The evidence shows that it was an injury to the brain, the brain stem, the motor pathways and the cerebral cortex. There is unanimity among the doctors that the plaintiff's condition, which they described, will not improve. Their opinion, however, is that it is not likely to deteriorate further. Dr. Sutherland said it would not do so unless post-traumatic epilepsy intervenes. But he would not say that she had this condition when he last examined her, but that the fall that she had and her inability to remember such a fall is consistent with the possibility that it was present. It is clearly established by the evidence that in consequence of being struck by the defendant's motor car the plaintiff suffered serious and permanent physical damage resulting in the impairment of her mental faculties, in a gross deterioration 38. of her appearance, habits, speech and disposition; and that she is thereby totally incapicitated for the rest of her life from earning any income from the practice of her profession as a nurse or any other employment, that her prospects of marriage have practically vanished and that she has been deprived to a large extent of the anenities of life. Her physical and mental disablement is not total. She has enough physical ability to move about. She is able to read, write letters with the aid of a typewriter, do simple tasks about the house, to knit and enjoy music. She cannot play tennis, swim, dance or ride 2 horse, things which she did before the acciéent. She is able to attend to personal needs but uses table utensils with difficulty. When her parents are both dead she is likely to need somebody to look after her. There is no medical evidence that the injuries will shorten her life. I have to award adequate. damages. In order to be adequate the damages must be full and fair compensation according to modern conventional standards in our society. Money cannot be an exect equivalent for personal injury but I must not estimate the demages immoderately or be swayed by sympathy for the plaintiff or antagonism against the defendant, I take into account the fall in the value of money. I regard the assessments in other cases which have been brought to my notice as guides, not as precedents, but as guides only in so far as the facts of such cases ere comparable with the present case, and they are not very helpful unless they are recent assessments. I think that the sum of £15,000 is fair and full compensation.to award the plaintiff in respect of the physical and mental damage, pain, suffering and discomfort, loss of amenities and the need for someone to care for her in the future which are proved by the evidence. ; I think that the evidence regarding the plaintiff, as! she was before the accident, points the conclusion that her future | 39. calling would have been a nursing sister and that eventually she was likely to be matron of a hospital. However, it might be wrong to disregard altogether the possibility of marriage. I think it would be reasonable, after allowing for various contingencies and vicissitudes, to estimate that her working life as a nurse would have been probably a period of twenty-five years from the date of the accident. In view of the evidence about the earnings of members of the nursing profession and taking into account diminution by taxation and possible inflation I take £15 per week as the rate upon which to compute her loss of future earnings. I estimate this loss at £10,000. In my judgment therefore the plaintiff should be awarded £25,000. In view of the medical evidence and the other evidence bearing on the question of damages I think that this sum is full and fair compensation, by way of general damages, for the injury suffered by the plaintiff. But I have to reduce this amount by one-tenth in accordance with my decision under s. 10(1), supra. I therefore find a verdict for the plaintiff for £22,500 and I give judgment for her for this amount with costs.