Ayoub v Hidar

[2016] NSWDC 339

District Court

New South Wales

Medium Neutral Citation:

Ayoub v Hidar [2016] NSWDC 339

Hearing dates:

17,18 November & 7 December 2016

Date of orders:

12 December 2016

Decision date:

12 December 2016

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the sum of $443,837.64;

 

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

 

3. The exhibits may be returned;

 4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – motor vehicle accident – negligence admitted – whether contributory negligence; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002, s 5B, s 5C, s 5R, s 5S
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999, s 83, s 126, s 131, s 136, s 138
Uniform Civil Procedure Rules 2005, r 31,Sch 7, cl 5

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonnano [2008] NSWCA 253
Manley v Alexander [2005] HCA 79
Marien v Gardiner [2013] NSWCA 396
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Miller v Galderisi [2009] NSWCA 353
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58
Penrith City Council v Parks [2004] NSWCA 201
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Shoalhaven City Council v Humphries [2013] NSWCA 390
Solomons v Pallier [2015] NSWCA 266
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Strinic v Singh [2009] NSWCA 15
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485

Texts Cited:

Dorland’s Illustrated Medical Dictionary, 28th ed, WB Saunders Company (1988)

Category:

Principal judgment

Parties:

Mark Albert Ayoub (Plaintiff)
Iman Hidar (Defendant)

Representation:

Counsel:
Mr J Turnbull SC (Plaintiff)
Mr D Ronzani (Defendant)

  Solicitors:
Martin Bell & Co (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2015/314180

Publication restriction:

None

Judgment

Table of Contents

Nature of case and issues	[1]
Credibility and reliability of testimony	[2] – [45]
Plaintiff’s version of events	[5] – [26]
Defendant’s version of events	[27] – [38]
Police statement from plaintiff	[39] – [45]
Findings of fact in relation to liability	[46] – [60]
Negligence of the defendant	[47] – [49]
Findings concerning circumstances of the accident	[50] – [60]
Findings of fact on matters relating to damages	[61] – [120]
Plaintiff’s pre-accident circumstances	[62]
Most probable circumstances but for the accident	[63] – [64]
Injuries and initial treatment	[65] – [68]
Subsequent medical treatment & allied reviews	[69] – [100]
Resolution of conflicting medical opinions	[101] – [109]
Disabilities that remain	[110] – [116]
Work effects	[117] – [118]
Domestic effects	[119]
Mitigation	[120]
Issue 1 – Alleged contributory negligence	[121] – [145]
Issue 2 – Assessment of damages	[146] – [203]
Plaintiff’s probable life span	[147]
Past economic loss	[148]
Past loss of superannuation	[149]
Future economic loss and superannuation	[150] – [178]
Past domestic assistance	[179]
Future domestic assistance	[180] – [192]
Future expenditure items	[193] – [201]
Past out-of-pocket expenses	[202]
Summary of damages assessment	[203]
Disposition	[204]
Costs	[205]
Orders	[206]

Nature of case and issues

1. The plaintiff, Mr Mark Ayoub, brings these proceedings claiming damages for injuries he sustained in a road accident when his motorcycle collided with a motor vehicle which was under the control of the defendant, Ms Iman Hidar. The defendant has admitted negligence, leaving the remaining issues of alleged contributory negligence and the assessment of damages to be determined. The proceedings are governed by the Civil Liability Act 2002 (the “CL Act”) and the Motor Accidents Compensation Act 1999 (the “MAC Act”).

Credibility and reliability of testimony

2. Oral evidence was given by the plaintiff and the defendant on the liability issues, and by the plaintiff’s mother, Mrs Joanne Ayoub, and Mr Robert Massih, the plaintiff’s employer, on some damages issues.

3. There were no issues of credibility arising from the testimony of those witnesses. Mrs Ayoub was not cross-examined and there were no challenges to her evidence. My impression is that all witnesses gave honest and truthful evidence to the best of their respective recollections.

4. The outcome of the proceedings turns on an acceptance or rejection of particular aspects of the factual evidence of the respective parties, and an assessment of the reliability of that evidence. It is therefore necessary to review their differing accounts of the events leading up to the collision, and the contemporaneous records.

Plaintiff’s version of events

5. The plaintiff was riding his motorcycle on his way home from work, and was travelling along Bonar Street, Arncliffe, NSW, as he had done on many previous occasions. He was very familiar with the area, and he knew that the applicable speed limit in the area was 50kph.

6. The accident occurred in conditions of darkness: T14.7; T17.35; T19.28. At the time, the road was dry: T19.44. In his oral evidence, the plaintiff said he had ridden his motorcycle over a rise in Bonar Street at about 40 – 45kph: T14.26 – T15.8. In a contemporaneous statement taken from the plaintiff by an investigating police officer, at hospital, that evening, the plaintiff was recorded as having estimated his speed at about 50kph at the time of the accident, a matter to which I shall return in due course. He said that just before the collision, he did not see any other traffic in the vicinity: T15.19.

7. The plaintiff said that as he proceeded along Bonar Street, he was aware that there were parked vehicles on either side of that street. As he rode over the rise in the roadway and approached the scene of the accident, he saw a reflection of his headlight ahead of him. This reflection was on the driver’s side of the defendant’s vehicle, which was located in a dark area of the street and obstructing the trafficable roadway. After crossing the rise and when he started to see the street ahead, he did not have anything in front of him: T15.23. He said that as he proceeded, he saw the defendant’s vehicle was blocking the road ahead of him: T40.44; T41.9; T59.26. He said he then unsuccessfully swerved to try and miss hitting that vehicle: T15.21 – T15.27. He said this all occurred in a very short space of time: T19.41. He said that on his journey up the rise to the crest, there had been no visual signs of the defendant’s vehicle: T57.46.

8. The plaintiff elaborated upon that description, stating that the front of the defendant’s vehicle was very close to the parked vehicles on the opposite side of the street, and it was at an angle facing towards him, to his right, and he did not see any indicating lights: T15.45 – T16.13. In those events, the plaintiff’s motorcycle struck the driver’s side of the defendant’s vehicle just in front of the driver’s side door: T16.16. In the aftermath, he then found himself located on the road, under a boat that was on a trailer parked on the side of the road that was situated to his right: T16.24 – T16.40.

9. The plaintiff said that in the events immediately before the accident, he had not noticed the colour of the defendant’s vehicle due to the dark conditions: T19.28. Although the plaintiff said that after he rode over the rise of Bonar Street, the events occurred in a very short space of time, he also said he had sufficient time to first apply the rear brake, and to then stabilise the bike, and load-up the front tyre, and then apply the front brake. On realising he was not going to stop quickly enough, he then let go of the front brake in order to regain stability, and the impact then occurred: T19.30 – T19.35.

10. The plaintiff’s evidence of applying the brakes, as outlined in the preceding paragraph, was not challenged, and it was not glaringly or inherently improbable. I find, that shortly after the plaintiff saw the defendant’s vehicle, and before the collision, he had reduced his speed by braking, whether this was, either from 40kph, 45kph or 50kph, or some speed in between.

11. The plaintiff said that on coming to his senses after the collision, whilst he was still located under the boat, and on the roadway, he felt that he wasn’t “really with it”: T19.50. He said that at that time, he was experiencing a lot of pain in his right ankle: T20.7. His perception at that time was that he was not initially aware of much being wrong with him: T20.20.

12. At that time, the plaintiff used his mobile telephone to ring his cousin who lived nearby, and his cousin then arrived and took him to St George Hospital, where he was immediately assessed, and almost immediately thereafter, he was given anaesthetic drugs in order to enable treatment in the form of relocation of his dislocated right foot by closed manipulation: T20.40; T21.25. He recalls speaking to a police officer when he woke up from the anaesthetic: T21.14. The police officer had apparently found the plaintiff in the emergency department at the hospital: T54.7.

13. On the question of what the plaintiff may have told the defendant at the scene, and what he may have told the police officer at the hospital, the plaintiff said that he did not recall much of those events: T40.25. That was entirely understandable, given the shocking traumatic experience he had undergone, and possibly, due to the after-effects of the anaesthetic he had been given, according to the description of his mother.

14. In answer to questions asked of the plaintiff in cross-examination, he stated that when he first saw the defendant’s vehicle, it was blocking the road ahead of him: T40.44 – T41.9. He said he had tried unsuccessfully to go around the vehicle: T59.26. He confirmed that he had not seen any lights on the defendant’s vehicle: T42.44. That evidence must be weighed with the defendant’s evidence that the lights on her vehicle had been turned on automatically when she had started her vehicle. He also stated that the defendant’s vehicle had not been pointing towards him when he first saw it: T43.34.

15. As to the width of the roadway, the plaintiff stated that the road, whilst narrow (T41.43), was still wide enough to permit two vehicles to pass, albeit with a tight fit, even if there were vehicles parked on either side of the roadway: T45.37. He stated that it was his usual riding practice to give himself some road space to his left when riding, in case something was to occur, such as what occurred in the subject accident. He denied that he had failed to allow for sufficient room to his left for such an eventuality: T47.48 – T48.14.

16. The plaintiff confirmed that as he approached the crest in the roadway, he could not see ahead on the other side of the rise until he had reached the very top of the crest: T49.46. He said in the course of those events, he had slowed down, although at that time he had not been looking at his speedometer in order to gauge his actual speed: T49.47 – T50.5.

17. The plaintiff reiterated that he believed he was travelling at between 40kph and 45kph, although he conceded it was possible he had told the police officer on the night of the accident he was travelling at 50kph: T51.30. In my view, nothing should turn on that relatively minor variation in speed estimates since he had not based those estimates on a visual speedometer check.

18. The plaintiff did not recall much of what had occurred at the hospital on the night in question: T58.19. The clinical records show that he arrived at the hospital at 19:00 hours (Exhibit “A”, p 20) and he was triaged at 19:04 hours: Exhibit “A”, pp 10, 22. An intravenous catheter was inserted at 19:10 hours (Exhibit “A”, p 50) and at that time anaesthetic drugs were administered. The plaintiff did not recall those events: T65.16.

19. This is consistent with the unchallenged evidence of Mrs Ayoub, which I accept, to the effect that between about 19:00 hours and 19:30 hours, the plaintiff was to her observation “as high as a kite”, and was giggling: T83.26 – T83.47.

20. The plaintiff was then given further dosages of anaesthetic drugs: Exhibit “A”, pp 36, 46. At 20:00 hours it was noted his pain levels were reduced to 3/10 rather than 10/10, as was recorded beforehand, the compelling inference being that the administered drugs had taken effect to relieve his pain. At 20:15 hours it was noted that the plaintiff’s foot deformity had already been reduced: Exhibit “A”, pp 284, 286.

21. It is not clear as to exactly what time the plaintiff had been interviewed by the police officer. On the unchallenged evidence of Mrs Ayoub, which I accept, it appears the statement was obtained by the police officer before 19:30 hours, because the police officer was “just finishing up” when she walked into the cubicle where the plaintiff was located: T83.40 – T83.42.

22. The plaintiff conceded his signature was on the statement obtained at that interview: T56.16; Exhibit “A”, pp 291 – 292. The defendant submitted that the plaintiff would not have signed the statement obtained by the police officer unless it was a correct statement: T57.15. That conclusion does not necessarily follow, given the recent administration of anaesthetic drugs and the plaintiff’s lack of recollection of that event. The circumstances raise a doubt as to the plaintiff’s capacity to check a statement for accuracy at that time, given the unchallenged observations of Mrs Ayoub.

23. In assessing the reliability of the content of the statement taken by the police, I must take into account that whilst in hospital, the un-contradicted evidence was that the plaintiff was “not thinking too clearly”: T58.40. His evidence to that effect was not inherently or glaringly improbable, especially given his earlier irrational reaction at the scene of the accident as described by the defendant, and given the painful nature of his injury. All the plaintiff seemed to recall about the initial events in hospital was that he had been crying out in pain at about 04:00 hours because the back-slab on his leg was feeling too tight: T65.27.

24. The plaintiff reiterated that the only time he had seen the defendant’s vehicle was when the side of that vehicle had reflected the approach of his own headlights: T62.27; T63.29. He believed the defendant did not have her headlights on at that time. I consider that aspect of the plaintiff’s belief is unlikely to be reliably correct, given the plausibility of the defendant’s account of the headlights being on. The plaintiff may not have been in a position to see the cast or the projected beam of the defendant’s headlights if they were on, because they were not directly pointing in his direction: T62.31; T62.46 – T62.49. Another explanation for the plaintiff not seeing the cast of the defendant’s projected headlight beam is that the beam would most likely have commenced to project from a point about 4m onto the roadway from the kerb on his left, that is, on the opposite side of the road to the plaintiff’s road position. He said he was not 100 per cent certain that the defendant’s vehicle was not displaying any turning indicators at the time of the events: T64.6.

25. The matter of the plaintiff’s irrational request of the defendant made at the accident scene, not to call the police or the ambulance, and the incorrect statement recorded at the hospital to the effect that he had been injured in a fall at a skating venue, were not the subject of credit challenges, or the subject of submissions adverse to the credit of the plaintiff: T116.42.

26. In my view, the plaintiff gave his evidence without exaggeration. On the damages issues, it was plain that he gave his evidence in a measured and stoically understated manner. I had no reservations about accepting the plaintiff’s evidence as being reliable on critical matters in dispute, except for the headlight issue described at paragraph [24] above.

Defendant’s version of events

27. The defendant was called to give oral evidence in order to seek to sustain the argument that the plaintiff had been contributorily negligent. The defendant’s recollection was that the accident occurred at about 6.30pm: T90.33. At the time she had held her driver’s licence for about a year and-a-half: T91.29. She hesitantly qualified the accuracy of her evidence, stating: “It was three years ago”: T100.10. I took that answer to mean that her recollection of the events was limited and uncertain. That conclusion was not unusual in the circumstances, as unlike the plaintiff, she appeared to have had no personally compelling reason to actively maintain a structured memory of the events in anticipation of having to give evidence in the proceedings.

28. At the time of the accident, the defendant was in the course of pursuing a reversing and turning manoeuvre. Beforehand, her vehicle had been parked on the footpath in front of her house, and she was intending to drive in the opposite direction from which she had been facing, which necessitated her turning her vehicle into that direction. In an attempt to do so, she had turned and reversed into her driveway, and she then turned the wheel on her vehicle to full lock to straighten-up in order to then turn to her right. It was in those events, whilst she remained stationary, that the collision occurred: T91.40 – T91.45. She said that when she started the ignition, the lights on the car were automatically turned on: T92.1.

29. At that time, the front of the defendant’s vehicle had been protruding onto the roadway of Bonar Street, at an angle which she estimated to be to the right and at about 2 o’clock from the perpendicular: T93.3. She qualified that evidence by saying that she was not good at estimating angles: T92.25. In my view, the defendant’s submission to the effect that the defendant’s vehicle was at an angle of about 45 degrees should be discounted in light of that evidence.

30. From where she was seated, the defendant thought she was about 2 metres onto the roadway, which was clarified in the evidence to mean that the front of her vehicle was probably a couple of metres further in front of the point she had been sitting in her seat: T102.24 – T102.29.

31. In that position, the defendant’s vehicle had obviously obstructed a significant portion of otherwise trafficable roadway, by approximately 4 metres, consistent with the plaintiff’s description that her vehicle was blocking the road. That situation would have left the plaintiff with very little room to manoeuvre around the front of her vehicle in the remaining available navigable roadway that was left unobstructed. After the plaintiff realised the presence of the defendant’s vehicle, and whilst he was occupied with, first, trying to stop, and then trying to steer an alternative course, he had very little opportunity to avoid a collision.

32. The defendant was familiar with the accident scene as it was outside her home. The photograph comprising Exhibit “B”, at page 2, was interpreted by the defendant as showing the roadway at the place in question being wide enough for two vehicles to be parked in the respective kerbside lanes with sufficient remaining room for a further two vehicles to pass each other on the remaining roadway, albeit in a tight space: T103.12 – T103.27. Other evidence which described the road as being narrow, must be read in the light of that evidence from the defendant.

27. It was against this background, that the defendant said that whilst she was in her stationary position on the roadway, and before she was about to turn, she had looked to her right and saw nothing coming towards her: T93.27 – T93.34. However, she did not make a timely move to drive to her right when she saw there was nothing coming from her right.

28. The defendant said that whilst she was in that position, she then heard the plaintiff’s motorcycle approach, with the noise getting louder, over a period of about 5 seconds: T94.12 – T94.23. In those events, she turned (to look), saw the lights of the plaintiff’s motorcycle, and then the crash occurred: T94.30. The defendant did not give any evidence that estimated the distance in metres when she first saw the plaintiff’s lights. Neither did she describe what part of the estimated time of 5 seconds had been spent looking to her right, or what part of that period involved her being able to see the plaintiff’s approaching headlight.

29. During that time, the defendant’s foot was on the brake and her steering wheel had remained in the full lock position, and she had the intention that she would be moving her vehicle straight forward: T94.47. My impression of the defendant’s evidence on those matters was that it was reconstructed evidence because of her limited recollection: T100.10.

30. After the collision, the defendant got out of her vehicle and went to the assistance of the plaintiff: T95.2. At the time he was located on the roadway under the boat across the road, and it appeared to her that he was screaming, and making sounds more than answering her questions: T95.20 – T96.11; T99.49.

31. In her evidence, the defendant recounted a conversation in which the plaintiff had asked her that the police and ambulance not be called. She considered his behaviour at the time to have been irrational, and she thought that in the circumstances, he was in obvious pain: T97.14 – T97.29; T98.7 – T98.46.

32. Apart from the qualification the defendant made to her evidence on account of the effluxion of 3 years since the events, there was another aspect of her evidence that raised a doubt about the reliability of her evidence. This concerned her account of the plaintiff standing on his own after getting out from under the boat: T98.49. She seemed to relate that account to an assumption based on her own past experience of having fractured an ankle on some other occasion: T99.13. Given the nature of the plaintiff’s foot injury, and the level of pain he was experiencing, I considered that the defendant’s account in that regard was unlikely to be correct. That said, it is not necessary to further analyse those post-accident events.

Police statement from plaintiff

39. The police records show that the accident was reported to the police at 18:23 hours, and at that time, it was stated to the police that the accident had occurred at 18:20 hours: Exhibit “A”, p 286.

40. The plaintiff’s statement, as recorded on pages 30 and 31 of the police notebook was in the following compressed or abbreviated terms:

“Q. Were you the rider of motor cycle OVD42 about 6.30pm on Tuesday 13th August 2013 on Bonar Street, Arncliffe and have a collision with BWT 79X?

A. Yes.

Q. Can you tell me what happened?

A. I was travelling south along Bonar Street. The Street is not very well lite (sic). As I was coming down up the crest I saw motor vehicle BWT 79X stopped across road. By the time I saw it, I tried braking but couldn’t stop in time. I collided into the front right of her car. I came off the bike. I exchanged details and my cousin took me to hospital.

…”

[Exhibit “A”, p 291]

41. At page 31 of the police notebook, a sticker was then applied in the midst of the plaintiff’s statement, with the following two questions which were noted to have been answered “Yes” by the plaintiff:

“I am now going to ask you some questions about this matter. You do not have to say or do anything if you do not want to. Do you understand that?

A. Yes.

I will record anything you say or do, I can use this recording in court. Do you understand?

A. Yes.”

[Exhibit “A”, p 291]

42. At page 32 of the police notebook, the plaintiff’s statement continued as follows:

“Q. W How fast were you going?

A. About 50kmph.

Q. Were you wearing a helmet?

A. Yes.

Q. Are you injured?

A. Yes. My right ankle is damaged. I’m at St George hospital and they told me I will need screws and plates.

(Signed)”

[Exhibit “A”, p 292]

43. An odd thing about the police statement, as copied, and cited at paragraph [40] above, is that it appears to be incomplete, as it does not commence with the plaintiff’s identifying details, and it commences with questions, rather than a narrative. It was a broad summary rather than a detailed statement. This is a matter that was not explored or explained in the evidence or in submissions.

44. I consider that statement to contain an imprecise account of the events because it contains what seems to be an implausible account of the plaintiff “coming up the crest” when he “saw [the defendant’s] motor vehicle … stopped across the road”. According to the evidence of the defendant, she did not see the plaintiff’s motorcycle until it had negotiated the crest of the hill: T93.34; T94.30. It follows, that it is unlikely the plaintiff would have been in a position to have seen the defendant’s motor vehicle until he had gone over the crest in order to create a line of sight. Even then, there is no evidence to suggest the plaintiff and the defendant would have been able to see each other at that very moment.

45. In the poor lighting conditions which prevailed, the point at which the plaintiff first saw the defendant’s vehicle in the prevailing dark conditions would have been dependent upon his position on the roadway when his headlight picked up the defendant’s vehicle in its position “stopped across the road”. The impression I gained from the plaintiff was that the distance was a relatively short one.

Findings of fact in relation to liability

46. In the paragraphs that follow, I record my findings of fact on the liability issues after a consideration of the respective factual accounts outlined in the preceding paragraphs.

Negligence of the defendant

47. On the defendant’s own account, it is plain that the issue of the negligence of the defendant was properly conceded. The manoeuvre she had sought to undertake was inherently dangerous because it was near a blind rise in the roadway to her right, in conditions of poor light, and in conditions of poor visibility of the roadway ahead, impeding her ability to see persons travelling towards her from over the rise, as the plaintiff had done. She had also remained stationary in that position for what was an inordinately long period of time, which created an obstruction for a significant period of time, and a situation of danger.

48. In that regard, the defendant had reversed into her driveway, moved forward and then remained in a stationary position for some 5 or so seconds, during which time she had obstructed a significant part of the trafficable roadway. In circumstances where she did not have a view over the nearby crest to her right, a period of 5 seconds or more, was a long time for her vehicle to remain stationary whilst obstructing the trafficable roadway so near the crest of a rise. The defendant had maintained that road position during a period when she knew something was approaching towards her from her right, as she could hear the plaintiff’s motorcycle before she could see it, and in those circumstances, she made no attempt to reverse her vehicle into the driveway behind her so as to reduce the extent to which her vehicle was obstructing the trafficable roadway.

49. The defendant argued that it was not open to find that the defendant’s vehicle had blocked the road as that proposition had not been put to her directly: MFI “8”, par 4. I do not accept that submission because the proposition the defendant was blocking the road came from the defendant’s own concessions in evidence, which enabled the conclusion that she had done so because of the effect of the front of her vehicle being about 4m from the kerb, facing across the road, in circumstances where there was also a vehicle parked on the other side.

Findings concerning circumstances of the accident

50. I am persuaded that at the time of the accident, the defendant was not displaying any indicator lights. I consider that had she done so, the plaintiff would most likely have seen them. However, as observed at paragraph [24] above, I do not consider the evidence enables a finding that the defendant failed to switch on her headlights.

51. That said, on the plaintiff’s evidence, which I accept, the beam of the defendant’s headlights was not seen by him on his approach. This was most probably because the defendant’s headlights would have been shining directly ahead from a starting point well across the road, and possibly because they were at such an angle that did not allow him to see the projected beam. The evidence does not describe the beam of the defendant’s headlights as reflecting on any objects ahead, unlike what occurred when the plaintiff’s headlight beam had become reflected onto the side of the defendant’s vehicle once the plaintiff’s motorcycle came close enough to the defendant’s vehicle for this to occur.

52. The defendant submitted that for the accident to have occurred as it did, the plaintiff must have been travelling at an excessive speed. The difficulty with that submission is first, it is not based on any measurements of time or distance that would reliably permit some form of rudimentary calculation, and secondly, it is based on the defendant’s recollection, which I have found to be a less reliable source of factual description because of the passage of time since the accident: T100.10. On the evidence, I cannot reasonably conclude the plaintiff was travelling at an excessive speed, as was submitted by the defendant.

53. I find that the plaintiff was travelling within the applicable speed limit, and at a speed in the vicinity of 40kph to 50kph. This equates to a speed/distance of approximately between 11.1m to 13.8m per second.

54. The defendant’s submissions assert the plaintiff told the police he had been travelling at 50kph: MFI “8”, par 8(iii). In my view, that relies upon a misinterpretation of the evidence. The plaintiff’s statement actually said “about 50kph”, and not 50kph.

55. At the lower end of the identified range of speeds, during the 5 seconds the defendant was in her stationary vehicle, if the plaintiff had not braked and undertaken the avoiding manoeuvres described at paragraph [9] above, he would have travelled about 55.5m from the top of the rise before colliding with the defendant’s vehicle. At the lower end of the range, that distance would have been about 69.4m.

56. However, that analysis on its own, is too simplistic and unreliable, because in that time, the plaintiff would have taken up some distance with reaction time, braking, then non-braking, and then unsuccessfully attempting to steer or manoeuvre a collision avoiding pathway.

57. The described scenario raises two initial possibilities for consideration: either the plaintiff was travelling at a faster speed than he had estimated, a possibility that I have already discounted; or the defendant was considerably inaccurate in underestimating the time lapse of about 5 seconds during which her vehicle had remained stationary before the collision occurred. On the evidence, it is not possible to reach a non-speculative reasoned conclusion on either of those matters.

58. That conclusion arises because the distance between the top of the rise and the driveway from where the defendant’s vehicle was protruding and obstructing the roadway was not the subject of evidence as to distances or measurements. The only description of that distance in the evidence was that the defendant’s vehicle was located about 3 houses from the intersection of Bonar Street with Monk Street to her right: T91.16. Without evidence of the width of those housing allotments, it would be unsafe and impermissibly speculative to try to infer or estimate that distance from the crest of the rise in the roadway, especially since there is a third possibility that should be considered.

59. That third possibility is that the plaintiff’s account of the events occurring very quickly (T19.41) involved an estimation of time measured from when he first saw the defendant’s vehicle. That moment was unlikely to have been when he reached the top of the rise. This is because the conditions were dark, and it is not known over what distance his headlight beam would have projected. I am satisfied the plaintiff’s description of first seeing the defendant’s vehicle relates to a time when he had already crossed the rise and was getting closer to the defendant’s vehicle, when the reflection of the beam of his own headlight then caused him to react and carry out the manoeuvres described at paragraph [9] above.

60. In those circumstances, especially because of the poor lighting in the area, I consider that it would be unreasonable and unsound to infer that the plaintiff ought to have seen the defendant’s vehicle in its position across the roadway at a point earlier in time than when he saw the reflection of his motorcycle headlight on the driver’s side of the defendant’s vehicle. In my view, that analysis is compelling because there was no evidence, expert or factual, of the likely distance over which the plaintiff’s headlight would have projected its beam, and whether it was likely that the plaintiff ought to have seen the defendant’s vehicle earlier than when he actually did.

Findings of fact on matters relating to damages

61. In the paragraphs that follow, I set out my findings of fact on matters pertaining to damages.

Plaintiff’s pre-accident circumstances

62. The plaintiff is presently aged 24 years. He is single and lives with his parents. He left school in Year 10. He commenced working with motorcycles after leaving school. He showed great aptitude for the work. Before the subject accident, he had successfully completed his training and apprenticeship as a tradesman motorcycle mechanic. He did so in earlier than the usual time taken for this to be achieved. At the time of the accident he was earning $800 per week net in stable full time employment with Sydney Motorcycle Wreckers. That employment ultimately ceased because of the effects of the plaintiff’s injuries.

Most probable circumstance but for the accident

63. Having heard the plaintiff’s evidence, which indicated his obvious passion and aptitude for working with motorcycles, I find that but for the subject accident, the plaintiff would have continued working as a motorcycle mechanic, in his chosen trade, most probably with promotions to the extent available, into more senior positions as he advanced in age and years of experience.

64. Given the plaintiff’s obvious intelligence, enthusiasm and aptitude for the work of a motor mechanic, I find that he had an unrestricted ability to pursue portability of employment in his trade, if not other manual occupations, which would have enabled him to earn income at least at the level of his pre-accident earnings over the course of time, with periodic increments. I do not discount the possibility that as he advanced in his work, uninjured, he may well have eventually operated his own motorcycle mechanic’s business to derive more income than only for wages: s 126 of the MAC Act.

Injuries and initial treatment

65. In the accident, the plaintiff sustained multiple jolting injuries to his body as he was thrown from his motorcycle onto the roadway. In those events, he sustained a severe dislocation injury to his right foot and ankle, and the surrounding soft tissues. He also suffered a grazing injury to his right foot.

66. The plaintiff was taken to hospital by his cousin and he arrived there at 19:00 hours: Exhibit “A”, p 20. After being triaged at 19:04 hours (Exhibit “A”, p 10), and given the anaesthetic drug Fentanyl at 19:10 hours (Exhibit “A”, p 50), by 20:15 hours his dislocated foot had been reduced and relocated as an emergency procedure because the lateral displacement of his foot was placing the skin of the right foot at risk: Exhibit “A”, p 7; p 22. He was discharged from hospital the following day, on 14 August 2013: Exhibit “A”, p 7. At that time he was mobilising on crutches: Exhibit “A”, p 8.

67. The post-reduction CT scan taken of the plaintiff’s injury revealed there had been a comminuted fracture of the right ankle involving the infero-lateral aspect of the talus, with fracture fragments, and a comminution of the talar articulating facet of the calcaneus as well as a fracture of the posterior process of the talus, and he had a small avulsion fracture involving the superior corner of the cuboid and the infero-lateral aspect of the navicular. The ankle mortice had been reduced into normal alignment during the closed reduction procedure: Exhibit “A”, p 12.

68. The plaintiff’s general practitioner’s notes between 18 February 2004 and 8 January 2016 were tendered: Exhibit “A”, pp 86 – 88. Nothing remarkable arises from those notes.

Subsequent medical treatment and allied reviews

69. The closed reduction of the plaintiff’s ankle was carried out by Dr Szomor, an orthopaedic surgeon at St George Hospital. The plaintiff remained in hospital with his foot and leg elevated: Exhibit “A”, p 52. At the time of his discharge on crutches, he was referred to Dr Szomor for follow-up review: Exhibit “A”, pp 24, 26. Dr Szomor certified the plaintiff as being unfit for work between 13 August 2013 and 6 November 2013: Exhibit “A”, p 89.

70. On 26 August 2013, the plaintiff had a further x-ray of his right foot for the purpose of diagnostic review: Exhibit “A”, p 61. On 28 August 2013, at a review by Dr Szomor, the plaintiff was prescribed Endone for pain: Exhibit “A”, p 54. He ceased taking that drug because he encountered the side effect of nausea.

71. On 23 September 2013, the plaintiff commenced physiotherapy treatment at Kogarah Physiotherapy and Sports Centre: Exhibit “A”, p 66. On 25 September 2013, Dr Szomor ordered the plaintiff’s back slab to be changed to a cam walker boot, with range of motion exercises to commence: Exhibit “A”, p 53.

72. On 30 October 2013, a further diagnostic x-ray of the plaintiff’s right foot revealed the fractures had healed in good anatomical alignment: Exhibit “A”, p 62. On 6 November 2013, an x-ray of the plaintiff’s right foot revealed the presence of osteopenia: Exhibit “A”, p 63. On 6 November 2013, the plaintiff was reviewed by Dr Szomor, and at that time it was noted that he was receiving physiotherapy and toe exercises: Exhibit “A”, p 54.

73. On 19 December 2013, the plaintiff was reviewed by Dr Szomor, who considered the plaintiff had avascular necrosis of the talar bone. An MRI was then ordered: Exhibit “A”, p 56. On 19 December 2013, Dr Szomor certified that the plaintiff was fit for selected non-physical work duties: Exhibit “A”, p 67.

74. On 24 January 2014, an MRI of the plaintiff’s right ankle revealed abnormal bone marrow signal suggestive of avascular necrosis. Significant bone bruising was noted in the right foot, along with the presence of synovitis, and evidence of sprains. At that time, the clinical concern was a query over sub-talar post-traumatic arthritis: Exhibit “A”, p 64.

75. On 4 February 2014, the plaintiff was again reviewed by Dr Szomor, who noted that a bone scan taken on 20 January 2014 had revealed synovitis, but no avascular necrosis. At that time he also noted the results of the MRI scan. The plaintiff was advised to reduce weight bearing on his ankle, and not to work as a mechanic for the time being, and to continue with joint mobilisation: Exhibit “A”, p 57. On 4 February 2014, Dr Szomor then referred the plaintiff to Dr Lam, a specialist ankle and foot surgeon, for further assessment and treatment: Exhibit “A”, p 60.

76. On 25 February 2014, Dr Lam examined the plaintiff at the referral of Dr Szomor. He arranged imaging investigations of the plaintiff’s right foot, and he reported to Dr Szomor that he would keep the plaintiff under review: Exhibit “A”, p 73.

69. On 11 March 2014, at the request of Dr Lam, the plaintiff underwent a CT scan of the right ankle. In view of a comment made by the defendant’s medical expert, it is relevant to identify some findings in relation to that CT scan. These include: multiple angular corticated and non-corticated bony fragments about the subtalar articulation; a few segments of depression of the sub-chondral plate of the calcaneal posterior subtalar facet; at least 5 fragments along the posterior subtalar jointline; a segment of tapered depression of the underlying talar posterior subtalar facet along the anterolateral jointline; two fragments adjacent to the subtalar articulation; sub-chondral sclerosis within the talar head; at least 4 non-corticated fragments between the middle and anterior subtalar facets and along the medial anterior facet jointline; the interpretative comment was multiple fracture fragments about the subtalar articulation likely to represent capsular avulsions and shear type osteochondral fractures complicating the known subtalar dislocation: Exhibit “A”, pp 80 – 81. An MRI was recommended to clarify the findings: Exhibit “A”, p 81. On 14 March 2014, Dr Szomor reviewed the plaintiff and recommended ankle fusion with bone grafting: Exhibit “A”, p 74.

70. On 17 April 2014, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Rhys Gray, a consultant orthopaedic surgeon. In that examination, and in the report of the same date, Dr Gray confirmed that the plaintiff’s injuries and related restrictions were accident-related. Dr Gray identified the plaintiff’s markedly irritated sub-talar joint, and noted the plaintiff walked with a definite limp. He supported Dr Lam’s recommendation for the plaintiff to undergo ankle fusion surgery: Exhibit “3”, pp 16 – 18.

71. On 29 May 2014, Dr Lam scheduled the plaintiff to have surgery comprising right sub-talar fusion and a bone graft from the right hip, with anticipated absence from work from 16 June 2014 to 27 June 2014: Exhibit “A”, p 70. On 13 June 2014, Dr Lam carried out that right ankle fusion procedure, with bone grafting, and ordered the plaintiff to remain non-weight bearing for 8 weeks: Exhibit “A”, p 75.

72. On 14 June 2014, the plaintiff underwent a post-operative fluoroscopy scan which confirmed the position of the fusion, and the fixation screws: Exhibit “A”, p 82. On 30 July 2014, a follow-up x-ray showed similar findings: Exhibit “A”, p 83. So did a further x-ray taken on 8 September 2014: Exhibit “A”, p 84.

73. On 10 September 2014, Dr Lam carried out a post-operative review of the plaintiff’s right foot, and estimated that the plaintiff may be able to return to restricted duties in a further 4 weeks, and in the interim, he suggested another review in a further 4 weeks: Exhibit “A”, p 76.

74. On 10 September 2014, Dr Szomor certified the plaintiff as being fit for 4 hours of work per day, 6 days per week, with increases so far as comfort allowed: Exhibit “A”, p 68.

75. On 28 November 2014, the plaintiff underwent a CT scan of his right ankle which was reported as showing the lateral margin of the posterior sub-talar joint had not yet completely fused: Exhibit “A”, p 85.

76. On 5 December 2014, Dr Lam undertook a 6 month post-operative review of the plaintiff. He suggested a return to previous activities according to what comfort allows, and in the meantime, the plaintiff was to continue physiotherapy and exercises: Exhibit “A”, p 77. On 5 December 2014, Dr Szomor certified the plaintiff as fit to resume his work on 8 December 2014 with those identified conditions: Exhibit “A”, p 69.

77. On that 5 December 2014 review with Dr Lam, a CT scan taken on 28 November 2014 showed a 50 per cent fusion mass, which he said indicated that the plaintiff’s ankle fusion had radiologically united. On the basis of that finding, Dr Lam suggested the plaintiff gradually return to all of his pre-injury activities “as comfort allows”. Dr Lam then issued the plaintiff with a certificate of fitness to return to work: Exhibit “1”.

78. On 25 June 2015, at the request of his solicitor, the plaintiff was examined by Dr Drew Dixon, a consultant orthopaedic surgeon: Exhibit “A”, pp 90 – 94. In essence, Dr Dixon considered that all of the plaintiff’s presenting signs and symptoms were causally related to the subject accident. He noted the plaintiff’s difficulties with squatting and pivoting activities, and considered that if in the future, it became necessary to remove the plaintiff’s internal fixation screws due to loosening of those devices, this would involve a month off work. Dr Dixon gave the following opinion on the plaintiff’s future prognosis:

“PROGNOSIS: His prognosis for continuing his work duties is satisfactory in the short to medium term, but in the long term, it is probable he will develop arthritic change and have difficulty with prolonged standing, squatting and pivoting at work and his working life will be foreshortened by some five years.”

[Exhibit “A”, p 93]

87. On 25 June 2015, Dr Dixon issued a further short report that dealt with whole person impairment issues that are not relevant at this stage of the proceedings: Exhibit “A”, p 95.

88. On 14 November 2015, at the request of his solicitors, the plaintiff was examined by Dr Stephen Buckley, a consultant physician in rehabilitation medicine: Exhibit “A”, pp 96 – 102. In essence, apart from dealing with matters of future treatment and related costings, Dr Buckley’s prognosis for the plaintiff was that, taking into account the plaintiff’s ankle stiffness, it would be prone to rapid progressive osteoarthritic change: Exhibit “A”, p 100. He expected the plaintiff to be able to do the work of a motor mechanic for the foreseeable future: Exhibit “A”, p 102.

89. On 14 November 2015, Dr Buckley issued a further report to the plaintiff’s solicitors which dealt with whole person impairment issues that are no longer relevant at this stage of the proceedings: Exhibit “A”, pp 106 – 107.

90. On 9 December 2015, at the request of the defendant’s solicitor, the plaintiff was re-examined by Dr Gray. Since the time of Dr Gray’s previous examination of the plaintiff on 17 April 2014, the plaintiff had undergone ankle fusion surgery on 13 June 2014. On 9 December 2015, Dr Gray listed the plaintiff’s current complaints at that time as follows:

“Currently, Mr Ayoub is able to do all his work activities with no undue concern except that he occasionally has difficulty manoeuvring heavier bikes and he experiences some intermittent sharp pain in the right heel region on pivoting at work. He has also noticed some mild swelling about the right ankle towards the end of the working day particularly in hot weather but this settled with resting up. Overall, he says that his symptoms have considerably improved over pre-operatively.”

[Exhibit “1”, report 9 December 2015, p 2]

91. At the 9 December 2015 examination, Dr Gray noted the plaintiff walked briskly without a limp, was able to fully squat, and did not have obvious signs of muscle wasting. He noted the presence of surgical scarring and the presence of successful and stable ankle fusion, with the right ankle essentially in an anatomical position. Dr Gray described the plaintiff’s symptoms as cited above, as marginal. He accepted the plaintiff’s presentation as being consistent with the injury received and the treatment provided.

92. However, Dr Gray also noted the plaintiff has continuing impairment with regard to the sub-talar arthrodesis, but he did not elaborate with any further descriptions or examples concerning that impairment: Exhibit “1”, report 9 December 2015, p 6.

93. Dr Gray considered the plaintiff to be fit to return to full time pre-accident employment, “… as he is undertaking currently. Fit for employment generally except if that employment required running or extended activity on uneven ground”: Exhibit “1”, report 9 December 2015, p 6.

94. Dr Gray reviewed Dr Dixon’s report dated 25 June 2015. Apart from taking issue with an assessed 5 degree difference in the measurement of valgus deformity in the plaintiff’s right foot (5 degrees as assessed by him, as opposed to 10 degrees as measured by Dr Dixon), which may have been explicable by the time interval between those two examinations, and commenting that the plaintiff did not raise a question of steel capped boots at the consultation with him, Dr Gray essentially agreed with Dr Dixon’s diagnoses: Exhibit “1”, report 9 December 2015, p 5.

95. It is not necessary to review or resolve the differing views of Dr Dixon and Dr Gray on the assessment of the percentage of the plaintiff’s whole person impairment, as that question is no longer a matter in issue in the proceedings.

96. On 4 August 2016, at the request of the defendant’s solicitor, Dr Gray prepared a supplementary report which was based on his review of Dr Buckley’s two reports dated 14 November 2015. This latter report from Dr Gray dealt with matters of history as outlined by himself and by Dr Buckley. These two experts were at issue in relation to whether there would be improvement in the plaintiff’s pain levels, and whether the plaintiff would develop rapid progressive osteoarthritic changes in the ankle.

97. Dr Gray’s basis for rejecting the latter prognosis was that it was not common, and he said there is no evidence of primary injury to the articular surface of the ankle joint. It is difficult to co-relate Dr Gray’s comment that there was no evidence of primary injury to the articular surface of the ankle joint to the imaging findings within Exhibit “A”, at p 12 and at pp 80 – 81, as summarised at paragraphs [67] and [77] above. This is a matter to which I will return when seeking to resolve questions arising on the medical evidence. He considered that the stiffness seen on examination of the plaintiff’s right foot was due to a combination of the known soft tissue trauma, the bony injury, and the fusion: Exhibit “1”, report 4 August 2016, p 3.

98. Dr Gray also disagreed in a minor respect with Dr Buckley’s prediction of a need for ankle joint replacement in the plaintiff’s sixth or seventh decade, saying it was a small possibility, but he agreed that if secondary symptoms developed, then total ankle arthroplasty or joint replacement would be a reasonable form of treatment: Exhibit “1”, report 4 August 2016, p 4.

99. Dr Gray took issue with Dr Buckley’s opinion on the plaintiff being prevented from carrying out normal fitness exercises such as running, jogging, walking or bicycle riding, or handyman duties. Dr Gray seems to have largely based his different views on the fact that the plaintiff “undertakes normal duties as a motor-cycle mechanic” and engages in a form of motorcycle racing: Exhibit “1”, report 4 August 2016, p 4. Dr Gray took issue with adjectival matters of description, such as whether the plaintiff’s injury was “a serious dislocation and fracture”: Exhibit “1”, report 4 August 2016, p 5.

100. In my view that approach by Dr Gray just involved semantics, and it did not sit well with the descriptions cited at paragraphs [67] and [77] above. The plaintiff’s injury was obviously serious. Dr Gray described the plaintiff’s complaints of continuing pain and stiffness in the ankle as minor: Exhibit “1”, report 4 August 2016, p 5. That description is not a useful indication of the impact the plaintiff’s disabilities have upon him. In that regard, instead of relying upon such adjectival descriptions, I consider it more informative to refer to the plaintiff’s actual complaints, as he described them in his evidence on such matters.

Resolution of conflicting medical opinions

101. The need to grapple with and resolve divergent aspects of the expert medical opinions was flagged during the course of the proceedings: T36.14 – T36.47; T108.10; T109.19. The expert medical evidence remains divergent on the question of the extent and prognosis of the plaintiff’s remaining disabilities and the likely impact those matters will have on the plaintiff in the future, especially on his future working life.

102. In final submissions, the defendant conceded that the differing views of Dr Gray and Dr Dixon must be resolved on the papers, as the respective experts were not required for cross-examination: T108.10.

103. The parties were informed that an exercise of that kind is usually undertaken by examining the reasons of the respective experts for the cogency of their reasons as they relate to the facts, and to determine the extent of compliance with UCPR r 31.27(1)(c) and UCPR Sch 7, cl 5(1)(c) in order to determine the weight to be given to the respective opinions within the reports: T109.17 – T109.23.

104. In undertaking that exercise, especially where the experts were not called, the outcome of particular matters of contention is left to be determined according to the onus of proof. In that regard, it is well understood that the result is likely to be that the party with the onus of proof on a particular issue may well fail on that matter at issue: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48]. An important part of the required evaluation involves the examination of the matters assumed by the experts as those matters must be sufficiently like the facts found to have been proven in evidence to render the expert opinion to be of any value: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].

105. At the conclusion of the proceedings, in the course of deliberations, that exercise almost became one-sided. This is because it transpired that the defendant’s representatives had omitted to tender Dr Gray’s report of 17 April 2015. In that situation it initially appeared that absent a complete set of his reports, little weight should be given to Dr Gray’s other reports that were tendered in evidence.

106. Since that problem became recognised on analysis after the evidence and submissions had concluded, and judgment had been reserved, the parties were informed of that problem. The matter was then relisted on 7 December 2016. At that time, leave was given for Dr Gray’s report of 17 April 2016 to be tendered, and added to the evidence as Exhibit “3”.

107. The task of deciding which aspects of the conflicting expert evidence should be preferred is a difficult exercise where the experts were not called to provide explanatory evidence in chief or in cross-examination. In my view, the parties could have foreseen this difficulty and could have arranged a meeting between the experts for the preparation of a joint report to address the matters on which the experts had differing opinions: UCPR r 31.26(2). Nevertheless, the problem must be grappled with, and a reasoned resolution attempted.

108. Having attempted to undertake that task as best could be done in the circumstances, I have concluded that the opinions of Dr Dixon and Dr Buckley should be preferred to those expressed by Dr Gray, for the following reasons, both individually and collectively:

1. Dr Dixon expressed his view that the plaintiff will in the long term probably develop arthritic change in his ankle, and will have difficulty with prolonged standing, squatting and pivoting: Exhibit “A”, p 93. Dr Buckley was of the opinion that the plaintiff would be prone to rapid progressive arthritic change in his ankle: Exhibit “A”, p 100. That evidence came from appropriately qualified experts, and it was not inherently improbable. The effect of that evidence was to establish a range of possible outcomes, obviously dependent upon future circumstances;

2. I consider Dr Buckley’s qualifications as a rehabilitation specialist indicate that he is well placed to make such prognostic predictions. I consider those qualifications indicate greater weight should be given to his views compared to those of the orthopaedic surgeons;

3. Having heard the evidence of the plaintiff and Mr Massih as to the specific work tasks and the difficulties posed by the plaintiff’s disabilities in carrying out the heavier aspects of those tasks safely, and without assistance, I consider that the histories assumed by Dr Dixon and Dr Buckley are more accurately and more sufficiently like the plaintiff’s evidence on those matters, than Dr Gray’s summary of the history: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9];

4. This latter view becomes evident when Dr Gray’s description as cited at paragraph [90] above is examined. Dr Gray has not referred to or outlined the heavier aspects of the plaintiff’s work tasks in sufficient detail to indicate his cited expressed opinion is a reliable summation concerning the plaintiff’s fitness for the duties of a motorcycle mechanic. Dr Gray’s comment (at Exhibit “1”, report 9 December 2015, p 2), that the plaintiff is able to do all of his work activities “without undue concern”, significantly understates the plaintiff’s actual concern (T68.38 – T68.48) even when the exception identified by Dr Gray is taken into account;

5. I consider Dr Gray’s statement to the effect that the plaintiff is fit for employment generally, except where this involves running or extended activity on uneven ground, is a description much removed from the plaintiff’s description of the practical difficulties he encounters in his actual work tasks, and therefore, this makes it difficult to place significant reliance on Dr Gray’s cited opinion on the plaintiff’s future work fitness;

6. I consider that Dr Gray has taken an unduly narrow view of the exercise of commenting on the plaintiff’s future needs. For example, in rejecting the plaintiff’s claim for steel capped boots, a common industrial safety measure to protect feet, his stated reason for rejection of that item of claim was that the plaintiff did not raise that matter with him in consultation. Putting to one side the question of whether or not this was due to the plaintiff not mentioning it, or being possibly due to stoicism of the kind observed when the plaintiff gave evidence, Dr Gray’s rejection of that issue failed to engage with Dr Dixon’s opinion as to the need for such boots. In the plaintiff’s circumstances, the provision of the protective boots is not an unreasonable measure to seek to protect an injured and anatomically altered foot;

7. Dr Gray’s rejection of Dr Buckley’s opinion as to rapid progression of osteoarthritis on grounds that it is not common, is not a persuasively reasoned argument, as it is anecdotal in nature;

8. To the extent that Dr Gray raised other factors for rejecting Dr Buckley’s opinion on the osteoarthritis question, on analysis, I considered those views to have been unhelpfully coloured by first, his adjectival assumptions in which he referred to the plaintiff’s description of his limitation of activity at work as “minor” (at Exhibit “1”, report 9 December 2015, p 5) and secondly, by his subjective quibble with whether the plaintiff had suffered a fracture dislocation of the ankle (as cited at Exhibit “1”, report 4 August 2016, p 5). Dr Buckley’s opinion was not challenged. Given the radiological and photographic evidence, the description of the plaintiff having had a fracture dislocation was not an unreasonable one. I consider Dr Gray’s comments indicate an unreasonable downplaying of the significance of those problems to the plaintiff, and as such, they have limited probative value;

9. It is recognised that in seeking to resolve issues arising on the medical evidence, a court is constrained to undertake that analysis on the evidence and not otherwise: Strinic v Singh [2009] NSWCA 15. For that reason, given the apparent dichotomy between the factual descriptions of the plaintiff’s ankle fractures, as summarised from the medical evidence at paragraphs [67] and [77] above, and Dr Gray’s cited adjectival descriptions, it becomes necessary to consider whether Dr Gray was given the material summarised at paragraphs [67] and [77] above;

10. An examination of Dr Gray’s reports reveals he was first instructed on 15 April 2014 by an NRMA Insurance claims consultant with an attached “Issues to be addressed” document, and a “Schedule of Medical Reports” for his perusal: Exhibit “3”, p 2. It appears from Dr Gray’s first report that amongst the documents he reviewed, was the CT scan dated 11 March 2014, which is cited and summarised at paragraph [77] above. Dr Gray’s first report summarised that report as showing “there were multiple fractures about the subtalar articulation probably reflecting multiple avulsions, and chondral injury”: Exhibit “3”, p 5;

1. Chondral injury was left undefined in the medical evidence, as was the question of whether a chondral injury was one which involved the articular surface of a joint. In such circumstances, in order to achieve an understanding of the meaning of those words in context, it is permissible to refer to medical dictionaries to seek to clarify the meanings of terms: Shoalhaven City Council v Humphries [2013] NSWCA 390, at [42];

2. “Chondral” is defined as pertaining to cartilage: Dorland’s Illustrated Medical Dictionary, 28th ed, WB Saunders Company, 1988, p 870. A “joint” is defined as an articulation or a junction between two or more bones that admits more or less motion of one of those bones: Ibid, p 870. “Cartilage” is a specialised fibrous connective tissue, of which there are many types, including articular cartilage, which is a thin layer on the articular surface of bones in synovial joints: Ibid, p 272. “Ankle joint” is defined as the articulatio talo-cruralis (Ibid p 86), which is the ankle joint formed by the inferior articular and malleolar articular surfaces of the tibia, the malleolar articular surface of the fibula, the medial malleolar, lateral malleolar, and superior surfaces of the talus: Ibid, p 114;

3. Having identified those matters, it is clear that the plaintiff’s right ankle joint comprised a number of bones and related structures. Looking at the report on the CT findings recorded at Exhibit “A”, pp 80 – 81, in conjunction with looking at the pre-reduction photographs of the plaintiff’s right ankle at Exhibit “A”, p 277 – 279, as taken by a doctor in the St George Hospital emergency department at about 7.00pm on 13 August 2013, and the photographs taken by a St George Hospital physiotherapist taken on 30 September 2013 (Exhibit “A”, pp 280 – 281), and the photographs taken 6 weeks post-accident (Exhibit “A”, pp 282 – 285), it is plain the plaintiff had what appeared to be a significant injury which, on the whole of the evidence, should be seen as being significantly disruptive of the structures that held the right ankle in its usual position;

4. Dr Gray’s comment at Exhibit “1”, report 19 December 2015, p 4, that the plaintiff returned to work activity “albeit with marginal symptoms”, in my view is materially unlike the plaintiff’s evidence on that matter, and unlike the plaintiff’s description of his disabilities, as cited and summarised in the paragraphs that will shortly follow. On the basis of the plaintiff’s evidence, which I accept, I consider the views expressed by Dr Gray to materially understate the extent and significance of the plaintiff’s symptoms with regard to his work capacity. The plaintiff’s evidence in that regard will shortly be summarised in connection with my findings as to his disabilities and with regard to future loss of earning capacity issues.

109. In the meantime, I record my finding that I consider the cited comments by Dr Gray to render his opinions unreliable, and of little assistance to the task of determining the damages issues in the case. I therefore prefer the opinions of Dr Dixon and Dr Buckley to those of Dr Gray where there is disagreement between the opinions of those experts.

Disabilities that remain

110. I find that following his injury, the plaintiff has been left with considerable continuing disabilities that have and will continue to have an adverse impact upon his day to day life. Those matters include the possibility the plaintiff may need further surgery later in life.

111. Given that I have accepted the plaintiff as a credible witness, I am satisfied that with the exception of Dr Gray, whose opinions I have discounted for the reasons stated, the medical and allied practitioners who have provided reports following their examinations of the plaintiff, have accurately summarised his complaints. I take those summaries to be evidence of his injuries and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.

112. In summary, since his right ankle fusion, the plaintiff’s continuing physical disabilities include occasional instability at work (T29.42); pain with heavier work tasks (T30.41 – T34.31); in pivoting on the right foot he experiences a sharp shooting pain, and this can cause him to fall over (T31.34); he cannot walk long distances over 100m without the occurrence of aching (T31.31 – T31.44); he needs to walk up and down stairs in a crab-like manner, and he has many difficulties with this (T31.46 – T32.7); he has to be careful where he places his right foot on uneven ground or on objects in the workplace due to falling issues (T32.41 – T33.13); his ankle swells and at the end of the day he experiences a dull ache, he feels worn out and needs to rest his foot (T33.18 – T33.31); he has difficulty pivoting and squatting such as when he needs to obtain tools (T34.14); he sometimes encounters such problems when he loses concentration and makes moves without thinking in the midst of work tasks (T34.30); some days involve him experiencing more pain than others, and he limps from time to time especially as the day goes on (T35.24 – T35.34); he needs help with heavier work tasks (T36.30); he has had to modify the foot brake on his motorcycle (T37.26); he experiences pain when he is required to test-run a motorcycle and has difficulty using his right foot to achieve stability by placing weight on it (T38.10 – T38.39); he has had the experience of inadvertently unloading his weight from one foot to the other whilst in the shower, and has lost his balance and fallen over (T40.6 – T40.10); at night his foot sometimes gets caught up in the sheets when he rolls over in his sleep (T33.35).

113. The defendant did not challenge or contradict any of the plaintiff’s evidence that has been drawn together in summary form in the immediately preceding paragraph.

114. Dr Dixon recorded the plaintiff’s complaints as comprising residual pain and stiffness in the right ankle and foot, and difficulty with prolonged standing for more than 30 mins, walking for 15 mins, and driving for 30 mins. He noted the plaintiff experiences disturbed sleep and is conscious of post-traumatic and surgical scarring to the right foot and to the donor site for harvesting the bone graft from the right hip: Exhibit “A”, p 91.

115. Dr Buckley recorded the plaintiff’s main complaint as being pain and stiffness in the right ankle, in the instep and in the infero-lateral malleolar region, and he noted the plaintiff’s need to elevate and rest the leg to settle the pain. Dr Buckley noted the pain worsened when the plaintiff walked on uneven ground, and that pain occurred on turning on the foot whilst at work, and difficulty with stairs. He also noted the plaintiff had difficulty walking on the golf course requiring the use of a buggy, and that the plaintiff needs to use a gymnasium with access to a heated swimming pool in order to maintain his cardiovascular fitness: Exhibit “A”, pp 98 – 99, 101.

116. Dr Gray referred to a history of intermittent aching in the right ankle and heel with certain activities, discomfort when walking, occasional swelling on hot days towards the end of the day. Dr Gray said there had been no instability of the ankle, that the plaintiff’s sleep was only occasionally interrupted, that the plaintiff avoids running, and makes no complaints of pain or concerns in the graft donor site: Exhibit “1”, report 9 December 2015, pp 2 – 3. It is unclear as to whether the “no complaints” assessment was due to the fact that the subject was in fact raised or explored in consultation, and denied as a problem, or whether the plaintiff did not volunteer the topic, or relate a narrative of it, when asked what his problems were.

Work effects

117. The plaintiff had two significant periods off work due to his initial recuperation immediately following his injury, and a subsequent period away from work for post-operative recovery from the ankle fusion procedure he underwent on 13 June 2014.

118. As the claim for past economic loss has been conceded, it is unnecessary to further describe those periods at this point. The plaintiff has a number of accident-related difficulties with his work. My findings on those matters will be recorded in connection with my assessment of the claim for future loss of earning capacity.

Domestic effects

119. Whilst recuperating from his injuries and the related treatment, the plaintiff for a time had problems with domestic and self-care tasks. The plaintiff described problems he anticipated with lawnmowing. The evidence on the domestic effects of the plaintiff’s injuries will be taken up in connection with the analysis of the claim for future domestic assistance.

Mitigation

120. In my view, following his injury, the plaintiff took prompt and reasonable steps to mitigate the effects of his injury. He did so by seeking appropriate medical, surgical and allied treatment. He did not take any unreasonable time away from work. The defendant made no submissions to suggest there had been an unreasonable failure on the part of the plaintiff to mitigate his losses. Accordingly, any assessment of his entitlement to damages should not be reduced on account of any mitigation questions: s 136 of the MAC Act.

Issue 1 – Alleged contributory negligence

121. The defendant argued that there should be a finding of contributory negligence on the part of the plaintiff: MFI “8”.

122. There was a glaringly stark internal inconsistency in the defendant’s submissions concerning the respective culpabilities. In the defendant’s written submissions on contributory negligence (MFI “8”), at paragraph 15, an apportionment of 80 per cent against the plaintiff was sought. Inconsistently, in the same document, at paragraphs 11 and 17 an apportionment of 40 per cent against the plaintiff was submitted. The disparity was not explained. In oral submissions, the defendant submitted the respective culpabilities should be apportioned 40 per cent to the plaintiff and 60 per cent to the defendant: T3.25; T115.14 – T115.19.

123. The defendant’s contributory negligence argument proceeded on the basis that it was unsafe for the plaintiff to have travelled downhill from the crest of the rise in the road at the speed he did, without slowing down, where he could not see ahead due to the prevailing darkness, and in such circumstances, he took the risk that there was no obstruction on the roadway ahead: T113.36 – T113.40.

124. The defendant argued that whilst it might have been reasonable for the plaintiff to travel uphill at the stated speed, it was submitted that it was unreasonable for the plaintiff not to have slowed down after he passed the crest in the road: T113.40.

125. That argument is difficult to reconcile with the plaintiff’s unchallenged evidence that he had applied the brakes after reaching the crest, and after seeing the defendant’s vehicle. The plaintiff’s evidence in that regard, was as follows:

“Q. You applied the brakes as you came up to the car?

A. Correct.

Q. The motorcycle I think has a rear brake and a front brake?

A. Correct.

Q. They're operated in different fashions, are they not?

A. A rear brake is operated by the right foot and a front brake is operated by the right hand.

Q. When you first saw this vehicle how far do you think you were from it – in metres, car lengths?

A. By the time I saw my reflection on the side of the car I would have been, I'd say, maybe a car to two cars.

Q. What colour was the car - was it dark or was it light?

A. It was - it was a pretty dark place so I can't exactly tell you the colour.

Q. Did you apply both brakes at first?

A. At first I applied rear brake to then stabilise the bike and also load up the front tyre and then I applied the front brake but I wasn't going to stop quick enough so I applied the front brake more and then my front tyre was about to lose traction so I let off the front brake to regain stability on the bike and that's when I just impact on the car.

Q. What sort of time frame did all of that happen in?

A. (Witness indicated.) like - like that sort of thing.

Q. You click your fingers, a very short space of time?

A. A very short space of time.”

[Emphasis added]

[T19.12 – T19.41]

126. The defendant’s pleaded case on contributory negligence is limited to the following particulars:

1. Travelling at excessive speed in the circumstances;

2. Failure to keep a proper lookout.

127. Section 138(1) of the MAC Act provides that the common law and the enacted law as to contributory negligence applies to an award of damages assessed under that Act, and the combined effect of s 138(3) and s 138(4) of that Act requires any apportionment of contributory negligence to be according to what the court reasonably thinks to be just and equitable in the circumstances of the case.

128. The issue of contributory negligence must also necessarily be determined by the provisions of s 5R and s 5S of the CL Act, which in turn invokes the provisions of s 5B and s 5C of the CL Act: Solomons v Pallier [2015] NSWCA 266, at [48].

129. Section 5R of the CL Act provides as follows:

5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

130. Section 5S of the CL Act provides as follows:

5S Contributory negligence can defeat claim

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

131. The effect of s 5R of the CL Act is that any finding of contributory negligence first requires that the provisions of s 5B and s 5C of the CL Act must be satisfied. Therefore, the question of whether or not the plaintiff was contributorily negligent requires an evaluation according to the requirements of s 5B of the CL Act, which provides as follows:

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

132. In making a determination according to the requirements of s 5B of the CL Act, the requirements of s 5C of that Act must also be considered. Section 5C of the CL Act provides as follows:

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

133. In undertaking the required exercise of identifying the relevant risk of harm, there can be no question that riding a motorcycle at an excessive speed, or without keeping a proper lookout, foreseeably gives rise to a risk of harm in the form of bodily injury.

134. In my view, for the reasons that follow, the defendant has failed to make good its claim that the plaintiff was contributorily negligent. In my view, there is no evidence from which it can be reliably inferred that the plaintiff was travelling at an excessive speed for the circumstances and conditions.

135. The plaintiff’s varying estimates of his speed, described as being either 40kph, 45kph or about 50kph, were not of themselves, indicative of excessive speed in an area to which a speed limit of 50kph applied.

136. In my assessment, the evidence discloses that as the plaintiff approached the crest of the road, he had adopted a reasonable road position on his correct side of the roadway, with adequate room on his left to avoid obstacles suddenly appearing onto the roadway from his left. He did not anticipate that his path on the road ahead would be substantially blocked by a stationary vehicle in a dark area that would be difficult to see because its lights, for whatever reason, were not visible to the plaintiff due to the combination of the angled direction which that vehicle was facing, in juxtaposition to the angle of his approach. Those circumstances of difficulty were exacerbated by the fact that the defendant’s vehicle, which was substantially blocking his path, was not showing to the plaintiff’s view, an indicator light to signal the defendant’s intention to turn to her right, when she was stationary.

137. In those circumstances, the plaintiff was confronted with an agony of the moment situation in conditions of poor lighting, and because of the inherently unsafe road position adopted by the defendant, including the absence of a turning signal visible to the plaintiff.

138. This meant that it was unlikely the plaintiff would see the obstruction caused by the defendant’s vehicle until it was picked up in his reflected headlight beam. By the time this occurred, taking the defendant’s argument at its highest, assuming the plaintiff was travelling at an estimated speed of say 50kph, he would have been moving forward at about 8.3 meters per second. In those events, he had an instant in which to react, and to try and stop or steer so as to try and avoid a collision. In my view, his inability to do so, in the described circumstances, should not be characterised as contributory negligence on his part. I consider that the plaintiff took reasonable steps to try and avoid a collision, as described at paragraph [9] above.

139. Although the plaintiff was required to exercise reasonable care and skill for his own safety, and also for all other anticipated road users, he was not required to anticipate the presence of a road blockage without due warning, such as the absence of visible lighting or signals on the defendant’s vehicle that would ordinarily be expected to be visible to a road user in his position. The plaintiff was not required to anticipate the defendant’s vehicle as posing an obstruction in the precise manner that it did on the roadway unless it was visible to him and he was not exercising reasonable care: Marien v Gardiner [2013] NSWCA 396, at [35], following Manley v Alexander [2005] HCA 79, at [11], [39]; Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301, at [13].

140. As already observed, it is necessary to assess the defendant’s claim of contributory negligence in light of the pre-conditions required by s 5B(1) of the CL Act.

141. Whilst the possibility of a road blockage may have been foreseeable as an ever present possibility, it was not a possibility that could reasonably be described as one of which the plaintiff either knew or ought to have known: s 5B(1)(a) of the CL Act. The risk of injury occurring to motorcyclists in a road accident is not an uncommon one, and it is “not insignificant”: s 5B(1)(b) of the CL Act. However, it is difficult to see what precautions a reasonable person in the position of the plaintiff would have taken in the circumstances in addition to those already taken by the plaintiff, as described at paragraph [9] above. Given the finding that he was not travelling at an excessive speed: s 5B(1)(c) of the CL Act.

133. The defendant argued that the plaintiff should have been travelling at a lesser speed in approaching and in navigating the rise in the roadway. I do not accept that submission. The plaintiff was familiar with the area. He was conscious of travelling within the applicable speed limit because of his awareness of the occasional police presence in the area, and because he was aware of the possibility of a loss of licence, where he depended upon his licence for his livelihood. I consider the defendant’s argument that the plaintiff should have reduced his speed is a convenient one, driven by the considerations of a hindsight analysis, and not on a prospective analysis as is required in the circumstances: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124].

134. Absent actual or constructive notice on the plaintiff’s part as to an obstruction ahead, I consider that he had maintained a reasonable road position and speed within the speed limit. The road was dry. The only limiting factor was an uncertainty as to what was ahead over the crest. Against that risk, appropriately, he was on his correct side of the roadway, knowing the road was wide enough to accommodate a vehicle travelling in the opposite direction, in addition to the road position he was occupying.

135. It was the defendant who had created a need for the plaintiff to stop or take avoiding action in an emergency setting where the plaintiff suddenly found he had limited options to avoid a collision. I consider that there is no evidence to reasonably sustain the defendant’s assertion that the plaintiff’s reaction was unreasonable so as to amount to a breach of the duty of care that he had to take care for his own safety. It is therefore unnecessary to further consider the cited provisions of the CL Act.

136. The only substantive criticism the defendant is able to level at the plaintiff is in connection with a claimed failure to slow down on the approach to the top of the crest in the road. In my view, the fallacy of that argument is that it has not been shown that the plaintiff was travelling at a speed that was excessive for the prevailing conditions, so as to demand that he reduce his speed. In conditions of darkness, he was not expected to be able to see beyond the projected beam of his headlight. He was travelling at an appropriate speed for the circumstances. I therefore reject the claimed defence of contributory negligence.

Issue 2 – Assessment of damages

146. In the paragraphs that follow I set out my assessment of the plaintiff’s entitlement to damages. That assessment makes no allowance for non-economic loss because the assessment of the degree of the plaintiff’s impairment due to his injury does not exceed the required statutory threshold: s 131 of the MAC Act.

Plaintiff’s probable life span

147. In approaching the assessment of the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At the age of 24 years, the plaintiff has a rounded down probable median statistical life span of a remaining 61 years. The 5 per cent multiplier for 61 years is 1014.9. The plaintiff has a remaining working life span of 43 years to age 67 years. The 5 per cent multiplier for 43 years is 938.2.

Past economic loss

148. The plaintiff claims past economic loss in the amount of $33,580. That sum comprises an initial claim for 16 weeks of absence from work at $800 per week, namely $16,000, and a further period off work between July and December 2014 to undergo surgery on his right foot, including a recuperation period off work which was calculated as being a further loss of $17,580: MFI “2”. In final submissions, the defendant conceded the amount claimed by the plaintiff: T107.37: MFI “7”, par 12. I therefore assess the plaintiff’s damages for past economic loss in the amount of $33,580.

Past loss of superannuation

149. The defendant concedes the claim by the plaintiff in the sum of $3693.80 for past loss of employer funded superannuation contributions: MFI “7”, par 12. I therefore assess the plaintiff’s damages for the loss of past employer funded superannuation contributions in the amount of $3693.80.

Future economic loss and superannuation

150. The plaintiff makes a claim for future economic loss and loss of future superannuation in a combined buffer sum which, it was submitted, should not be less than $275,000: T106.26. In contrast, the defendant argued that the extent of the buffer should be in the vicinity of $40,000, including superannuation: MFI “7”, par 14.

151. At present the plaintiff’s earnings are $900 per week net: T39.24. Since his recovery from the ankle fusion surgery, and following his resumption of work, he has been working in his trade, without actual loss of earnings.

152. The plaintiff described the issue appropriately when it was suggested to him that there is no reason why he would not continue to work for the rest of his working life on account of his foot problem if he wanted to do so. He answered, reasonably; “I’m not sure about that”. When it was further suggested to him that his foot problem had not prevented him from working until the present time, with some prescience, he answered “But the issue isn’t now”: T68.38 – T68.48.

153. In those answers, the plaintiff has framed the basis for his claim for future economic loss. In light of his unchallenged evidence as to his disabilities, which have been listed at paragraphs [112] to [114] above, I consider that the plaintiff has expressed legitimate concern about his future working life.

154. In approaching the assessment of the plaintiff’s claim for economic loss, it is not only necessary that it be shown that there has been an impairment in the plaintiff’s earning capacity, but it is also necessary for the plaintiff to establish that as a result of such impairment, he has relevantly suffered a financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, at [10]; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1,at [2].

155. Many of the plaintiff’s disabilities, as identified at paragraphs [112] to [114] above, will impact on his working day, and they will continue to do so.

156. In this case, the medical evidence that I have already reviewed and accepted, adequately grounds a claim for loss of earning capacity. That said, the claim for future loss of earning capacity, and the related claim for loss of employer funded superannuation benefits, does not require determination by the terms of the medical evidence alone. I consider practical workplace-based evidence of the plaintiff and Mr Massih to be more informative on this subject than the medical evidence alone.

157. At present the plaintiff has a sympathetic employer in Mr Massih who views his disabilities with some benevolence and understanding in the workplace: T76.48. It is instructive to review Mr Massih’s uncontradicted and not otherwise improbable evidence as to the nature of the plaintiff’s work and the physical challenges to the plaintiff in the course of his work. Mr Massih has personally observed and experienced those matters: T77.

158. The plaintiff’s work requires a lot of standing and walking: T77.23. The work involves carrying heavy things, and “a bit of lifting”, the inference being it is at times heavy lifting for which help is needed: T77.25 – T77.33.

159. Mr Massih has observed that, like himself, in the workplace, by lunch time, depending on how much time the plaintiff has spent standing, he must sit and rest, as the bench work involves significant physical work that tires the plaintiff: T77.35 – T77.46.

160. Mr Massih is in a good position to relevantly make those observations as he has been in the trade for 21 years, he is 20 years older than the plaintiff (T77.48 – T78.5), and he has a significant leg disability himself: T78.44. He has himself experienced some of the problems at work which the plaintiff experiences: T78.33. Unfortunately, the full extent of Mr Massih’s disability is not recorded in the transcript of his evidence, which is marred by a number of significant “Not transcribable” entries. The parties were aware of this, and were nevertheless content for the matter to proceed to judgment without further attempts to further analyse the audio recording of the evidence.

161. Plainly, Mr Massih is a very understanding and sympathetic employer who recognises the limiting effects of the plaintiff’s disabilities, and he encourages the plaintiff to sit down and take it easy at times, and to call upon him to help with the heavier work tasks: T78.39.

162. Mr Massih has observed the plaintiff to be a very good worker who puts in a lot of effort, but this involves a harder struggle for the plaintiff to stand up on his leg all day in summer. He said that it would be complicated for the plaintiff to sit all day at work: T78.11 – T78.22.

163. The sheltered nature of the plaintiff’s employment became apparent from the evidence outlined in the preceding paragraph, and by the special consideration Mr Massih gave when deciding to employ the plaintiff. This extended to giving particular attention to how he and the plaintiff were going to be able to do the work, where he really needed someone young and able to keep up with the work: T79.38 – T80.6; T80.25.

164. At the end of the day, Mr Massih recognised in the plaintiff an ability, experience and brightness that in the work context, he considered might counter-balance the potential harm to his business posed by the plaintiff’s disability. Mr Massih’s decision to employ the plaintiff was also influenced by the plaintiff’s need for a job: T80.8 – T80.15. Clearly, Mr Massih took a chance in employing the plaintiff. That is a remarkable employment situation for someone with the plaintiff’s difficulties, and this factor, as well as the plaintiff’s efforts, has served to mitigate the claim for loss of earnings.

165. Counter-balanced against that position is that, as motorcycle mechanics age, according to the experience of Mr Massih, enthusiasm for the job may recede: T80.30. That is a potential adverse vicissitude that operates against the defendant. Not all potential vicissitudes are adverse to the plaintiff: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, at [19]. The plaintiff may at some stage find that he cannot maintain his employment, or he may be unable to secure other employment.

166. If for any reason Mr Massih tired of his business, or found himself unable to continue to employ the plaintiff, then the plaintiff would be in a very difficult employment market with his physical limitations and he would have few other avenues of work for which he would be suited. In my assessment, the plaintiff would find it very difficult to compete for employment on the open labour market. Although Mr Massih considered it unlikely the plaintiff would leave his employment (T81.15), that is a matter that may not always be determined by the plaintiff’s choice.

167. The plaintiff is aged only 24 years. Mr Massih is much older than him, and it is foreseeable that circumstances may arise at some point, not necessarily when Mr Massih reaches the age of retirement, where the plaintiff’s position may no longer be viable or economic for another employer because he is not fully able-bodied, and that fact impacts upon his employability and his present work.

168. The evidence of the plaintiff and that of Mr Massih, described several significant instances which could, and do readily arise in the course of his work, where the plaintiff’s residual disabilities adversely impact upon his ability to safely and efficiently carry out the ordinary work tasks of a motorcycle mechanic.

169. In the light of the matters I have reviewed in the preceding paragraphs, I consider that this is an appropriate case for the award of a buffer sum because, at present, the plaintiff is not able to demonstrate an actual amount by which his earning capacity has been diminished. This is because he is presently in full time employment at a market rate of remuneration. This continues in circumstances where he has plainly suffered a diminution in his earning capacity in a number of ways that are likely to have an impact upon him in the future. The fact that at present he is aged 24 years and cannot demonstrate a recurring weekly loss makes the assessment of his loss of earning capacity a difficult exercise.

170. Despite that difficulty, an assessment is still required, and well settled authority requires that a monetary assessment be attempted, in the form of a buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

171. In my view, those matters reviewed in the preceding paragraphs are significant and need to be taken into account in the assessment of damages for future economic loss. Other matters to be taken into account are Dr Dixon’s longterm prognosis in which, significantly, he identified that it was probable the plaintiff would develop arthritic change, and that he will have difficulty with prolonged standing, squatting and pivoting at work, leading to the conclusion that the plaintiff’s working life will be foreshortened by some 5 years: Exhibit “A”: p 93.

172. The defendant’s submissions were critical of Dr Dixon’s prognosis, arguing it was based on speculation and mere conjecture: MFI “8”, par 18. That submission should carry no persuasive force: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [27].

173. In my view, there are at least three other difficulties which preclude an acceptance of that submission. First, Dr Dixon’s stated views remained unchallenged by cross-examination. Secondly, they were not inherently improbable, and thirdly, he based his opinion on the plaintiff developing arthritis, and having work difficulties as he identified in his opinion. In my view, his reasons on this point were sufficiently cogent to comply with UCPR 31.27(1)(c) and Sch 7 cl 5(1)(c). I therefore reject the defendant’s submission which criticised Dr Dixon’s cited opinion.

174. Also significant to this issue, is the medical evidence which I have accepted, to the effect that the plaintiff faces the possible development of arthritis in his left foot and ankle, and he may require future surgery on his left foot, and he may not be able to work for the final 5 years of his working life: Exhibit “A”: p 93.

175. A factor that must be taken into account is that as the plaintiff ages, he will be likely to become less agile and less able to do the work of a motor mechanic, and his ability to compete for employment in the open, and less accommodating labour market will be significantly impaired. Hence the plaintiff’s retort “the issue isn’t now” to the suggestion he could continue in his work on account of his foot problems: T68.38 – T68.48. Those matters must go into the mix of the many imponderables that face the plaintiff at this relatively early stage of his working life. They have to be weighed when considering the terms of a buffer award.

176. Another matter to be considered in the mix is Dr Dixon’s stated longterm prognosis as cited at paragraph [86] above, to the effect that the plaintiff will have difficulty with prolonged standing, squatting and pivoting and his working life will be foreshortened by some 5 years. For example, on account of that factor alone, a protection of a loss of $900 per week over 5 years on the 5 per cent tables (x 231.5) discounted for 38 years deferral for early receipt (x 0.157), and further discounted by 15 per cent for vicissitudes, yields an amount of $27,804 and that is a predicted loss at the tail end of the plaintiff’s working life. That approach proceeds without considering the impact over the next 38 years of matters such as the capacity to continue full time, the ability to compete for alternative employment should the need arise to do so for any reasons, and the effects of any foreshadowed future treatment. In my view, they require a buffer to be assessed towards the higher end of the range. In some cases a high buffer amount is called for, for example, in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, although amounts will necessarily differ from case to case.

177. My impression of the plaintiff’s position, comparing his most probable circumstances as stated at paragraphs [63] – [64] above, and his present situation, as described at paragraph [112] above, combined with Mr Massih’s evidence and the plaintiff’s own realistically based concerns, is that he has a very significant loss of earning capacity, although it is at present masked by his enthusiasm for work and his stoicism, at his relatively young age, and because he has an unusually sympathetic employer, for the time being. My impression of the nature of the plaintiff’s work and his lack of an alternative recourse to employment, is that the vicissitudes are significantly stacked against his continued longterm employment in his present job. These circumstances fit within the formulation that the plaintiff’s earning capacity has unquestionably been reduced, but its extent is difficult to assess in more precise mathematical terms: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7].

178. In my assessment of the particular facts of this case, in light of the considerations I have reviewed, a proper future economic loss buffer sum that is fair to the plaintiff and not unfair to the defendant is the sum of $300,000. I therefore award the plaintiff damages for future economic loss, including future loss of employer funded superannuation contributions, in the amount of $300,000.

Past domestic assistance

179. In the course of final submissions, the parties ultimately came to an agreement on the value of the past domestic assistance that family members had provided to the plaintiff, and which he has needed as a result of his accident: T107.49. I therefore award the plaintiff damages for past domestic assistance in the agreed amount of $10,508.

Future domestic assistance

180. Since the parties have agreed upon the value of injury-related past gratuitous services that were provided to the plaintiff it is unnecessary to review the evidence of those matters.

181. The plaintiff claims an amount of $61,810 for future domestic assistance: MFI “2”. That amount was calculated by projecting the value of 3 hours per week of domestic assistance at $45 per hour ($135 per week) on the 5 per cent tables over 30 years (x 822) and deferred for 12 years (x 0.557). The defendant disputes the plaintiff’s entitlement to that sum: T111.8. The estimate of 3 hours per week came from Dr Buckley’s report.

182. The plaintiff’s evidence of his present need for domestic assistance is of a very limited ambit. He stated that at the end of the working day, because of his foot, he feels worn out: T33.31. He considers he would have issues with some lawnmowing tasks: T35.35 – T36.3. He believes he would have issues with using a ladder: T36.10. At present, he has not made any specific plans to leave home: T73.24. Not unusually for someone of his age of 24 years, he has been thinking about taking that course: T73.10 – T73.21. He is uncertain as to whether he would need assistance with routine daily household chores whilst he still lives with his parents: T74.5 – T74.12.

183. Notwithstanding the limited evidence of the plaintiff’s likely future domestic assistance needs, some reasonable inferences are available to be drawn from the plaintiff’s evidence as to difficulties he experiences with some of his work tasks and his disabilities, as summarised at paragraph [112] above. In my view, the plaintiff’s descriptions of his difficulties with physical tasks at work, and the fact that after a day on his feet at work he needs to elevate his right ankle, indicates he would have a limited capacity for household tasks involving standing and physicality due to his experience of pain and the need for him to rest. I consider those matters form a reasonable basis for making some allowance in the plaintiff’s damages for probable future domestic assistance needs.

180. It is relevant to review the medical evidence on the plaintiff’s need for domestic assistance.

181. Dr Dixon identified the history of the plaintiff’s parents carrying out domestic tasks and yard work, noting that domestic assistance, undefined as to detail, was continuing, in excess of 6 hours per week: Exhibit “A”, p 93. Dr Dixon’s comments in that regard should not be read as being prescriptive: Sampco Pty Ltd v Wurth [2015] NSWCA 117, at [83].

182. Dr Buckley addressed the question of the plaintiff’s future need for home handyman services. He considered that the plaintiff was unfit for ordinary handyman duties, and in the event that family members were unavailable to carry out those tasks, he considered that if the plaintiff was living in an average sized suburban house, he would require three hours per week of handyman assistance for outdoor domestic maintenance tasks: Exhibit “A”, pp 101 – 102. In my view, Dr Buckley’s qualifications as a rehabilitation specialist serve as a sufficient qualification for him to more reliably proffer that view, but again, I do not consider his evidence on this issue to be read as being prescriptive. On the evidence, it is not clear as to what outdoor handyman services would occupy an average of 3 hours per week in the plaintiff’s future situation.

183. In the consideration of this head of damage, I do not accept Dr Gray’s optimistic views. An imponderable matter that must be added to the mix of the usual factors that determine whether damages should be awarded for future domestic assistance on a commercial basis is the possibility of the plaintiff developing rapid onset osteoarthritis and requiring surgery in later life. If that came to pass, and it seems to be on the cards because of his need to be on his feet and active at his work, then this may occur sooner than has been predicted in the medical evidence. If this occurs, it is likely that the plaintiff’s need for domestic assistance would increase.

184. The plaintiff’s own description about lawnmowing difficulties may well account for some of that time estimate: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [52]. This presumes he will purchase a house with a lawn, and not an apartment, as do many other young people in the community, at least when they initially enter the property market.

185. Therein lies the difficulty for assessment, as the tasks are not capable of precise definition for the purposes of assessment. Another difficulty for assessment is the uncertain timing of the plaintiff’s need for such assistance beyond that which is presently provided by his family. Until he leaves home, it is likely that he will continue to receive the gratuitous assistance of his family, to whatever extent his accident-related needs may require: Miller v Galderisi [2009] NSWCA 353, at [24]. This appears to be below the applicable threshold for assessing damages.

186. Taking into account those matters, and difficulties in identifying an amount for projection as to the hours required and the commencement date for projection, even though the rate is identified at $45 per hour, I consider that the claimed projection is artificial, and is too high.

187. Instead, in fairness to both parties, I consider that a buffer amount should be awarded for this head of damage in accordance with the previously cited authorities: Penrith City Council v Parks [2004] NSWCA 201; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. I consider the appropriate amount for the buffer to be $35,000.

188. I therefore award the plaintiff damages for future domestic assistance in the amount of $35,000.

Future expenditure items

193. The plaintiff makes a claim for a number of future expenditure items, including for treatment, in the sum of $54,936: MFI “3”. The defendant argued that those claims should be rejected: MFI “8”, par 30 – par 39.

194. The medical evidence reveals a number of areas of possible future expenditure to meet the plaintiff’s injury-related needs. Those matters are identified as follows:

1. A possible fixation screw removal procedure which is estimated to cost about $3800: Exhibit “A”, p 93;

2. Soft steel capped protective work boots at about $200 per pair: Exhibit “A”, p 93;

3. General practitioner reviews at unstated intervals, at a cost of $70 per visit: Exhibit “A”, p 93. Dr Buckley estimated the frequency of such visits at two Level B visits per annum at a cost of $76 each, and two Level C visits per annum at a cost of $140 each: : Exhibit “A”, pp 101, 103;.

4. Orthopaedic reviews at unstated intervals, at a cost of $220 per visit: Exhibit “A”, p 93. Dr Buckley estimated this need to be an annual cost of $166 with any subsequent visits at $89: Exhibit “A”, pp 101, 103;

5. Physiotherapy for likely exacerbations of pain were recommended at 6 visits annually at a cost of $150 for an initial consultation, and $135 for subsequent sessions: Exhibit “A”, pp 101, 103;

6. A possible right ankle joint procedure in the plaintiff’s sixth or seventh decade as a result of progressive osteoarthritic change, at an estimated cost of $23,997: Exhibit “A”, pp 101, 104.

195. In addition to the above items a claim is made for ongoing gymnasium membership at $10,000, house modifications estimated at $5000, and future anti-inflammatory medication at an estimated cost of $5000: MFI “2”.

196. The plaintiff does not take much in the way of medication these days: T72.44 – T72.46. The estimate of $5000 on that account is therefore too high. That said, given the evidence that he will develop osteoarthritis and given the plaintiff’s evidence of the discomfort he suffers at work, some modest allowance should be made for future medication, but the incidence and cost is not capable of being reasonably defined.

197. Dr Buckley suggested that the plaintiff have access to a gymnasium and a heated pool to maintain cardiovascular fitness. I therefore consider that avenue of expenditure to be reasonable, but the cost is uncertain.

198. The matters listed at paragraph [112] regarding the plaintiff’s ongoing disabilities certainly merit that he be compensated for the occasions on which he needs to seek out medical advice from a general practitioner, a specialist in the fields of orthopaedics and radiology, the paramedical disciplines such as physiotherapy, and medication, when needed.

199. Understandably, the evidence for the predictive incidence and frequency of recurrent expenditure is not available because of the inherent difficulty of predicting such matters. I nevertheless consider that all of the above items represent reasonable avenues of possible injury-related future expenditure for the plaintiff, although the likelihood and frequency are not capable of more precise definition. That difficulty does not mean that quantification of such matters should not be attempted by way of a buffer for such items in accordance with the authorities previously cited: Penrith City Council v Parks [2004] NSWCA 201; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13.

200. In those circumstances, doing the best I can to be fair to the plaintiff and not unfair to the defendant, I consider that an appropriately discounted buffer for such items would be $35,000. This is the equivalent of a projection of a little over $40 per week over 61 years and discounted for vicissitudes. I consider that method of cross-checking confirms my impression of the reasonableness of the buffer amount I have identified.

201. I therefore assess a buffer amount for the plaintiff’s damages for foreseeable future expenditure items in the sum of $35,000.

Past out-of-pocket expenses

202. As the parties have agreed on past out-of-pocket expenses: MFI “7”, par 6. Of that amount the defendant is to be given credit for payments made totalling $21,350.39: s 83 of the MAC Act. I therefore assess the plaintiff’s claim for out-of-pocket expenses in the agreed amount of $26,055.84.

Summary of damages assessment

203. My assessment of the plaintiff’s damages is summarised as follows:

(a) Past economic loss	$33,580.00
(b) Past loss of superannuation	$3,693.80
(c) Future economic loss & superannuation	$300,000.00
(d) Past domestic assistance	$10,508.00
(e) Future domestic assistance	$35,000.00
(f) Future expenditure items	$35,000.00
(g) Past out-of-pocket expenses	$26,055.84
Total	$443,837.64

Disposition

204. The plaintiff has succeeded on all the issues raised in the proceedings. He is therefore entitled to a verdict and judgment in his favour in the amount of $443,837.64.

Costs

205. As the plaintiff has succeeded on all issues raised in the proceedings I see no basis for a cost order other than that the defendant should pay the plaintiff’s costs of the proceedings on the ordinary basis, unless a party is able to show an entitlement to some other costs order, for which there should be liberty to apply, if required.

Orders

206. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $443,837.64;

2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days notice if further or other orders are required.

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Decision last updated: 13 December 2016