Robson v Gould & Anor [2011] NSWDC 176

District Court New South Wales

Medium Neutral Citation: Robson v Gould & Anor [2011] NSWDC 176 Hearing dates: 14/11/11, 15/11/11, 16/11/11 Decision date: 17 November 2011 Jurisdiction: Civil Before: Elkaim SC DCJ at Wagga Wagga Decision: See paragraph 78 Catchwords: Personal injury, contributory negligence Legislation Cited: Civil Liability Act 2002 Military Superannuation and Benefits Act 1991 (Cth) Motor Accidents Compensation Act 1999 Category: Principal judgment Parties: Lisa Maree Robson (Plaintiff) Simone Joy Gould (First Defendant) John James Allan (Second Defendant) Representation: I Roberts SC and J Ryan (Plaintiff) D Wilson (First and Second Defendants) Walsh & Blair Lawyers (Plaintiff) Sparke Helmore (First and Second Defendants) File Number(s): 2010/228621 Publication restriction: No

Judgment 1The plaintiff finished school in November 1998. She immediately attempted to enlist in the armed forces. She was told that she was too young and needed to experience some aspects of broader life before she commenced her career. She did so and returned to her ambition in May 2002 when she joined the Royal Australian Air Force ("RAAF"). 2She hoped to remain in the RAAF until she retired at age 60. 3The plaintiff started off her military career as a Clerk. By October 2003 she had become a Leading Aircraftswoman stationed at the Williamstown Air Force Base. She decided to become a Military Skills Instructor ("MSI") and applied for this position. She was posted to Wagga Wagga in 2006 to train as an MSI. When she came to Wagga Wagga she was accompanied by her partner, Mr Zachary Haywood. He is a mechanic and Army Reservist. He found work in Wagga Wagga. The plaintiff and Mr Haywood lived in a 'Defence House' for which they paid a subsidised rent of $150 per week. 4In 2006 the plaintiff was an Acting Corporal. She applied to be a permanent Corporal in February 2007. Her promotion came through in August 2007. By this time, however, she had been involved in a major motor accident. 5The accident is the subject of these proceedings. The plaintiff was seriously injured. The first defendant admits the accident was caused by her negligence; however, she says that the plaintiff was guilty of contributory negligence. 6The accident occurred at about 5.30pm on 5 March 2007. The plaintiff was riding her motorcycle from work along the Sturt Highway. She was travelling in a westerly direction. Eunony Bridge Road intersects with the highway. The first defendant was travelling south on Eunony Bridge Road, intending to cross the highway. Travellers on the road must give way to vehicles on the highway. The first defendant did not do so. She did not see the plaintiff and moved from the road onto the highway and collided with the plaintiff. 7The plaintiff, as was her habit when riding to and from work, was dressed in her uniform. This was a camouflage ensemble of khaki and green hues. The plaintiff does not recall if the headlamp of her motorbike was illuminated. She said it was only her practise to switch on the light when conditions required it. She was a learner rider, but had been a motor car driver for some time. 8The defendants' main allegation of contributory negligence is essentially the plaintiff's failure to make herself more visible to motorists. She could have worn brighter clothing or turned on her headlight. Her uniform made her blend into the countryside. 9A secondary allegation was that the plaintiff should have seen the car crossing the highway and taken evasive action. 10The plaintiff does not remember the accident. Her first recollection is being at Wagga Wagga Base Hospital. She had suffered a number of fractures and required operative treatment. A summary of her presenting injuries and treatment in hospital can be found on page 1 of Exhibit B. 11She remained in the hospital until 11 April 2007, when she was discharged to Kapooka Army Hospital. On 30 April she was transferred to Forest Hill, an RAAF Hospital. She was finally discharged home, in a wheelchair, about two weeks later. 12The plaintiff has returned to hospital for further treatment. Details can be found in the chronology (Exhibit A). 13The plaintiff applied the same determination she had displayed in pursuing her military career to her rehabilitation and she was able to return to work, still in a wheelchair, in July 2007. 14A son was born to the plaintiff and Mr Haywood in June 2009. The plaintiff is now pregnant. Her due date is in May 2012. 15In October 2010 the Defence Force Medical Board ruled the plaintiff unfit for service. She was, however, able to take up a military position in Canberra but this will end, without possibility of extension, on 14 December 2013 (Exhibit B, page 10). The effect will be that the plaintiff's aspirations to progress in military service, perhaps even being posted to overseas deployments, have been lost to her. She has become depressed and currently receives treatment and medication for this condition. 16The plaintiff and her family plan to move to the Sunshine Coast in early 2014. The plaintiff anticipates that she will be able to obtain employment of a clerical nature. She is concerned that she will not be able to work in a fulltime job because of the necessity for treatment, which may not be available outside working hours. The job that her partner expects to obtain will require a good deal of driving on his part. The plaintiff will therefore also need to take into account the needs of her children in being able to obtain treatment in the evenings or perhaps on weekends. 17The plaintiff was often visibly upset in the witness box. She presented as a very genuine person who has dealt with adversity with courage and determination. Her return to work and even progress at work are testament to these traits. The various assessments of the plaintiff in Exhibit C demonstrate the high regard in which her superior officers have held her (see for example Exhibit C at pages 38, 77,78,80, 87 and 89).