Reported Decision : [2000] 30 MVR 507 New South Wales Supreme Court CITATION : Jones v Commonwealth of Australia [2000] NSWSC 293 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 118/96 HEARING DATE(S) : 31 March-3 April 2000 JUDGMENT DATE : 6 April 2000 PARTIES : Kay June Caroline Jones (Plaintiff) Commonwealth of Australia (Defendant) JUDGMENT OF : Studdert J COUNSEL : C. Callaway QC/G. Petty (Plaintiff) K. Dodd SC (Defendant) SOLICITORS : Lea Smith (Plaintiff) Australian Government Solicitor (Defendant) LEGISLATION CITED : Motor Traffic Act Motor Accidents Act DECISION : See para 29 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION STUDDERT J NEWCASTLE: Thursday 6 April 2000 118/96 KAY JUNE CAROLINE JONES v COMMONWEALTH OF AUSTRALIA JUDGMENT 1 HIS HONOUR: Kay June Caroline Jones is claiming damages from the Commonwealth of Australia for injuries suffered when she was struck by a motor vehicle on 16 March 1995. The plaintiff has sued the defendant in negligence and the defendant has responded by denying negligence and pleading contributory negligence. 2 The plaintiff, I am satisfied, suffered a fractured skull with contusion of both frontal lobes. The plaintiff gave no evidence and the Court was informed that the plaintiff has no recollection of the accident. That assertion was not challenged and by reason of her disabilities the plaintiff's daughter Jennifer Retallick was appointed her tutor for the present litigation. 3 The accident happened at the intersection of Bourke Street East and Adelaide Street, Raymond Terrace on a fine afternoon at about 4.00 pm. Adelaide Street runs north-south with two lanes for traffic in each direction. There is a fairly wide median strip separating the carriageways for north and south bound traffic. On both sides of the roadway there is an area immediately adjacent to the kerbside which is marked off, presumably for vehicles to park. Crossing from west to east, as apparently the plaintiff did before she was struck by the defendant's vehicle, there was a guardrail obstructing departure from the roadway. This guardrail extended to the south from the mouth of the T intersection formed by Bourke Street East and Adelaide Street. 4 Vehicles proceeding in a westerly direction along Bourke Street East were required to turn to the left on to Adelaide Street. There was no opportunity for west bound motorists in Bourke Street East to make a right hand turn at the intersection. 5 Christopher Hall was travelling as a back seat passenger in a motor vehicle proceeding north along Adelaide Street. He saw the plaintiff on the median strip but was then distracted. The evidence of this witness has been dimmed by the passage of time but I am satisfied by his responses in cross examination that he actually saw the plaintiff step off the median strip and then hurry towards the eastern side of the roadway. According to Mr Hall, the plaintiff was half way across the most eastern lane when the collision occurred. 6 The driver of the defendant's vehicle was Mrs Tracey Keegan. In 1995 this witness, then unmarried, was working as a clerk with the Defence Housing Authority in Raymond Terrace and worked in offices in Johnson Close, which the street map, Exhibit 2, shows to run parallel with Adelaide Street to the east of that main street. 7 Mrs Keegan, then Miss Sweetman, had a regular task to take documents to a firm of solicitors and shortly before this accident Miss Sweetman set out on a journey to perform this regular task. Miss Sweetman drove along Johnson Close and turned right into Bourke Street and then travelled to the intersection of Adelaide Street. Upon reaching the intersection the witness said that she stopped and waited for traffic on the right to clear. She said that she had her left indicator operating. When the traffic permitted, she proceeded to move out of Bourke Street East. The motorist said she "had only probably moved a car length when I saw the person in front of me and she was actually on the bonnet". The witness said she was travelling at about ten kilometres per hour when the accident happened. She had not seen the pedestrian at any stage before the collision. 8 Constable Dickson arrived on the scene shortly after the accident and was able to interview Miss Sweetman. The version of the accident then given to the police was entirely consistent with the evidence Mrs Keegan gave in the witness box and I accept her as a witness of truth. 9 I am satisfied that the collision occurred as the motorist was commencing to move into her left hand turn. I am further satisfied that the accident occurred very close to the eastern edge of the eastern lane for traffic moving along Adelaide Street. Constable Dickson marked a photograph to indicate where the plaintiff was lying when the police officer arrived at the scene. Mrs Keegan marked a photograph to indicate the point of impact. Understandably the points indicated by Const. Dickson and by Mrs Keegan vary somewhat, but the evidence satisfies me that the accident happened in the area I have indicated. 10 It seems clear that Miss Sweetman concentrated her attention entirely down the road to the north before she began to move into her left hand turn and that she was still not looking in the direction in which she had commenced to proceed when the impact happened. Had she looked in front of her as she should have done before moving off, I am satisfied that Miss Sweetman could not have failed to see the plaintiff. I am satisfied that Miss Sweetman was negligent in failing to keep a proper lookout and in particular in failing to look in the direction in which she intended to proceed before starting to move. 11 The plaintiff has pleaded breach of reg 72(2) of the regulations made under the Motor Traffic Act. This regulation requires a motorist turning from one public street into another to take adequate precautions to avoid danger of colliding with a pedestrian. There was a breach of this regulation in the circumstances of this accident. 12 I am satisfied that the plaintiff has established that Miss Keegan drove the defendant's car negligently and the defendant is vicariously liable for such negligence. The plaintiff is accordingly entitled to succeed in this case. 13 The defendant however relies upon the defence of contributory negligence. Just as Miss Sweetman should have seen the plaintiff, so too the plaintiff should have seen the motor vehicle at the mouth of the intersection with the left hand blinker operating. The plaintiff chose to cross the road at a point where the guardrail prevented her from reaching a position of safety without walking on the road around the corner into Bourke Street East. Mrs Retallick said that her mother informed her that she regularly crossed at this point, although it is not clear why she would have chosen to do so when she lived in Alma Street which is more than a kilometre to the north. There was no pedestrian crossing in the immediate vicinity of this intersection and the nearest traffic lights to the south were 200 metres away and to the north were more than a kilometre away. However the plaintiff would have avoided the guardrail obstruction and any risk of a collision with traffic turning out of Bourke Street East by crossing immediately to the north of the intersection. 14 The evidence does not establish why the plaintiff chose to cross where she did nor, indeed, precisely where she was coming from before she began to cross Adelaide Street. However I am satisfied that the plaintiff failed to exercise reasonable care for her own safety in moving off the median strip when she did and in moving into the position where she collided with the motor vehicle. Weighing all the circumstances, I consider it to be just and equitable that the plaintiff's damages be reduced by twenty-five percent because of her contributory negligence. 15 I turn to damages. 16 The plaintiff was born on 21 April 1930 so that when this accident happened she was approaching sixty-five years of age and she is now almost seventy years old. Having been taken from the scene to the Mater Hospital the plaintiff was then transferred to the John Hunter Hospital where Dr Bookallil carried out an operation. At the Mater Hospital a CT scan had revealed a fractured skull with contusions of both frontal lobes and following transfer to the John Hunter Hospital the plaintiff's condition deteriorated. A report from the latter hospital records the plaintiff's treatment there, her subsequent transfer to Rankin Park Hospital for rehabilitation and her return to the John Hunter Hospital on two later occasions: "The patient was admitted to the Neurosurgical Ward for close monitoring. When the patient's condition deteriorated overnight, the head CT scan was repeated urgently, and revealed increase in size of the right frontal contusion with intracerebral haematoma. There was no evidence of midline shift and effacement of the right lateral ventricle. The patient was taken to the Operating Theatre where Dr Bookallil performed a right frontal craniectomy, and evacuation of intracerebral haematoma. A Codman bolt was inserted in the left side for monitoring of intracranial pressure post-operatively. The patient was transferred post-operatively to the Intensive Care Unit at John Hunter Hospital. The patient remained in intensive Care until 30 March 1995. During her stay in Intensive Care, deterioration on 22 March 1995 led to her being returned to the Operating Theatre where left frontal craniotomy and removal of intracerebral haematoma was performed. On 28 March 1996 a subcutaneous tracheostomy was performed to facilitate her ongoing respiratory support and tracheal toilette. The patient was discharged to the Neurosurgical Ward on 30 March 1995. Mrs Jones remained at John Hunter Hospital in the Neurosurgical Ward undergoing intensive rehabilitation until 20 April 1995. At this time, she was transferred to Rankin Park Hospital for ongoing rehabilitation under the care of Dr R Adams. She remained at Rankin Park Hospital until 24 July 1995. Subsequently, Mrs Jones has returned to John Hunter Hospital on a further two occasions as an inpatient. The first of these was on 15 November 1995 and she remained an inpatient until 20 November 1995 at which time the cranial defect from her previous surgery was repaired by reinserting the bone flap which had been previously excised. This procedure, and her subsequent stay was uncomplicated. A further admission to John Hunter Hospital between 21 January 1996 and 29 January 1996 was due to infection in the cranioplasty itself. This necessitated removal of the infected bone flap which was performed on 23 January 1996. Mrs Jones' post-operative recovery following this was unremarkable." 17 Dr Bookallil provided a report dated 21 March 1996 and I refer to the concluding two paragraphs of that report: "From a mental point of view there is no doubt that this patient has suffered severe impairment of frontal lobe function and I believe would be unable to care for herself in the future. She is a little confused and disorientated at times but she is able to give some sort of account of herself although she does constantly state that her condition is such that she feels very distressed by her mental disability. In summary this patient has suffered an extremely severe head injury with bilateral frontal intracerebral haematomas requiring surgery. There is little doubt that she has impairment of intellect as a direct result of the accident and it is quite likely that she will have quite marked impairment of mental function in the future. She currently has a bony defect in the right frontal area but in view of the fact that she has had an infection I would be very reluctant to consider a further cranioplasty in the future." 18 A more recent report from Dr Bookallil of 8 July 1998 was written six months after the plaintiff was admitted to the Oban Nursing Home: "This patient came to see me today. She is currently in a nursing home in Raymond Terrace called Oban. She's been there for 6 months. She does nothing for herself. She needed home care and family support and then it became too much for the family. She is on medications including Renitec and medications for diabetes, She now does very little for herself if anything. She cannot dress herself, cannot wash her clothes or wash up. She is unable to perform any financial transactions. She has little motivation. She would lie down in bed all day if she is allowed. She is incontinent of urine. She remains severely mentally disabled as a direct result of the injury and it is unlikely that there will be any improvement in the future. She remains completely and utterly dependent on her surroundings for her very existence." 19 The plaintiff was fortunate to have a daughter who has devoted so much attention to her care. Mrs Retallick gave evidence that when her mother was discharged from hospital she was allowed to live at home until 26 January 1998. There the plaintiff was afforded with home care assistance and Mrs Retallick, although she had young children and a husband to care for, spent some six hours every day with her mother. A son of the plaintiff was with his mother overnight. 20 I accept the evidence that Mrs Retallick gave describing the impact that this accident had upon her mother. Before the accident the plaintiff, who was separated from her husband, led a very active life. She was a District Commissioner in Guides, having held that position for some twenty-seven years, and she worked as a volunteer in a number of positions including the State Emergency Service, a neighbourhood centre and a further organisation which helped families in which members were suffering from either leukemia or cancer. Mrs Retallick said that her mother had a group of friends and was very healthy and very active. 21 By way of contrast Mrs Retallick described her mother's condition following her discharge from hospital. Her mother complained constantly of pain, she was paralysed down one side, she was incontinent and needed assistance to walk. As time went on the plaintiff's condition deteriorated mentally until the decision was made to move her to the Oban Nursing Home where Mrs Jones' condition has deteriorated further. According to Mrs Retallick, Mrs Jones complains continuously of pain and she cannot move without assistance. The plaintiff is entirely dependent upon others and will have to live in a nursing home for the rest of her life. 22 The assessment of damages in this case is governed by the provisions of the Motor Accidents Act. 23 I am satisfied that the plaintiff's injuries and resultant disabilities are such that the case attracts an allowance for non economic loss. The plaintiff's ability to lead a normal life has been significantly impaired ever since the accident and will continue to be significantly impaired for the rest of her life. The plaintiff's injuries and disabilities are grave indeed but I do not regard this as "a most extreme case" for the purposes of the statute, and I must have regard to the plaintiff's age when determining the appropriate proportion of the maximum amount that ought be awarded in this case. It is agreed that the maximum amount is $273,000 and I consider it appropriate to award eighty percent of that figure in this case, that is to say $218,400. 24 It is agreed that the medical and hospital and other out of pocket expenses total $96,442.72. 25 It is further agreed that the proper allowance for gratuitous services provided for the plaintiff whilst she was being cared for at home is $72,920.25. 26 It is further agreed that the sum appropriate to provide for the plaintiff's future care at the Oban Nursing Home or in some similar establishment is $140,196; this is upon the basis of the defendant's undertaking that the cost of future care will continue to be subsidised as it is at present. 27 The plaintiff's total damages therefore amount to $527,958.97. 28 I reduce that figure by twenty-five percent because of the contributory negligence assessed. Having regard to s 73 of the Motor Accidents Act, none of the heads of damage awarded in this case can attract interest. The plaintiff is therefore entitled to judgment in the sum of $395,969.23. Formal orders 29 1. Judgment for the plaintiff for $395,969.23. 2. I order the defendant to pay the plaintiff's costs. 3. Because the plaintiff is a disable person, I invite the submission of short minutes concerning the orders to be made as to payment of the judgment sum. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.