Burden v Fingleson

[2020] NSWDC 366

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Burden v Fingleson [2020] NSWDC 366

Hearing dates:

2 – 3, 24 June 2020 (Hearing)

Date of orders:

16 July 2020

Decision date:

16 July 2020

Jurisdiction:

Civil

Before:

Weber SC DJC

Decision:

(1) Judgment and verdict for the plaintiff in the sum of $172,430.33.

(2) The defendant pay the plaintiff’s costs on an ordinary basis up until 3 May 2020 and thereafter on an indemnity basis.

Catchwords:

TORTS — Negligence – Liability – Motor vehicle accident – cyclist travelling on shared path struck by motor vehicle exiting driveway – issues of liability – speed of cyclist – obstructed vision – point of collision – perception response time

TORTS — Negligence – Legal principles – relevant duty of care

TORTS — Contributory negligence — Apportionment of liability – factors relevant to the assessment on contributory negligence

TORTS — Damages – assessment of damages – plaintiff not entitled to damages for non-economic loss – damages awarded for past and future economic loss and past treatment expenses

Legislation Cited:

Civil Liability Act2002 (NSW)

Motor Vehicle Accidents Compensation Act 1999 (NSW)

Road Rules 2014 (NSW)

Cases Cited:

Manley v Alexander (2005) 223 ALR 228, 231

Marien v Gardiner (2013) NSWCA 396

Pennington v Norris (1956) 96 CLR 10

Penrith City Council v Parks [2004] NSWCA 201

Sharpe v Gordon; QBE Workers Compensation Australia Limited v Gordon [2006] NSWCA 347

Stapley v Gypsum Mines Limited (1953) AC 663

Talbot-Butt v Holloway (1990) 12 MVR 70

T and X Company Pty Ltd v Chivas [2014] NSWCA 235

Warth v Lafsky [2014] NSWCA 94

Category:

Principal judgment

Parties:

Mr Troy Burden (Plaintiff)
Mr Frank Fingleson (Defendant)

Representation:

Counsel:
Mr R. Lynch (Plaintiff)
Ms C. Allen (Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2019/126160

Publication restriction:

None

Judgment

1. Percival Road is a busy thoroughfare in Smithfield. At the portion of that road relevant to these proceedings it runs approximately north to south. It is a busy road during daylight hours as amongst other things it is the access road to several industrial estates. As a consequence of this it has significant heavy vehicle use, and semi-trailers are routinely parked along its length.

2. At about noon of 12 December 2016, the plaintiff had just completed his shift at Friends of Meat Pty Limited. That company was a wholesale butcher which supplied meat, sausages, and similar products to a chain of Brazilian-style restaurants.

3. The plaintiff left his place of work and was travelling by pushbike. He was riding down the western side footpath of Percival Road, travelling from north to south. Notwithstanding that he was an experienced cyclist he was cycling down the footpath. He had taken this course as he considered Percival Road too dangerous a thoroughfare upon which to cycle. The footpath was not a shared path, though the plaintiff says he was unaware of this fact.

4. As he was travelling along the footpath of Percival Road a car driven by the defendant exited the driveway of 28/54 Percival Road, and collided with the plaintiff’s bicycle.

5. The plaintiff was thrown from his bike and suffered abrasions. The defendant immediately stopped to offer assistance. He drove the plaintiff home to the premises where he was living in Fairfield. He provided to the plaintiff the sum of $180 to allow him to replace the bicycle’s front wheel, which seemingly was the only damaged part of the bicycle.

6. Later on that day, the plaintiff’s left knee become troublesome, and ultimately the plaintiff was unable to adequately bear weight upon it.

7. The plaintiff attended on his general practitioner in relation to his knee, and then saw Dr Chandra Dave, an orthopaedic surgeon, and finally, Dr Peter Walker, who is also an orthopaedic surgeon. On 26 March 2018, Dr Walker operated on the plaintiff’s left knee, performing what is colloquially known as a knee reconstruction.

Proceedings

8. The plaintiff commenced proceedings against the defendant in negligence, and as such, the proceedings fall to be determined according to the provisions of the Motor Accidents Compensation Act1999 (NSW) (“Motor Accidents Compensation Act”) and the Civil Liability Act2002 (NSW) (“Civil Liability Act”). On 27 October 2019, a certificate was issued pursuant to part 3.4 of the Motor Accidents Compensation Act that certified the plaintiff’s injuries, those being, namely:

1. Left knee – ACL and meniscal tear;

2. Lower back – soft tissue;

3. Right knee – soft tissue; and

4. Left leg – scarring.

9. The injuries did not give rise to a permanent impairment sufficient to claim non-economic loss.

The Plaintiff’s Background

10. The plaintiff was born on 21 March 1971; he is 49 years of age. At the time of the accident he was 45 years old. He attended high school at Fairfield Patrician Brothers College, completing year 10 in 1986. Upon leaving school he commenced an apprenticeship as a butcher, which qualification he obtained in 1990.

11. As a broad proposition, the plaintiff has worked in either wholesale or retail butcheries since that time. I have qualified that proposition to reflect the fact that there were periods in which he undertook different types of work, and there have been periods of both unemployment and inability to work due to health issues, including problems with substance abuse. In addition, in the mid 1990’s the plaintiff was diagnosed with Bipolar Disorder, which also periodically caused him to be unable to work.

12. Since the plaintiff’s recovery from his knee surgery, he has attempted to work as a wholesale butcher, but he has found that he is unable to function in that role, given the need to lift sometimes heavy carcasses, and swivel or otherwise pivot on his left knee. He explained that in addition to those movement difficulties he finds it difficult to stand for a full shift, as he is functionally required to do. This problem is exacerbated by the fact that the environment of a wholesale butchery is a cold one, the temperature of which is not to exceed 12 degrees Celsius. The cold causes the knee problem to become more painful.

13. The plaintiff has also attempted to return to his trade as a retail butcher, but again the need to be on his feet for the day, as well as the need to lift and manoeuvre carcasses, has proved beyond him.

14. There was no dispute between the parties as to the fact that the plaintiff is now unable to work in his trade as a butcher.

15. The plaintiff has attempted to retrain. In March 2019, the plaintiff commenced studying for a TAFE diploma in social welfare. This unfortunately had to be deferred to 2020 due to his need to undertake major dental work. In the period of March to April 2019, the plaintiff commenced a rope access training course. He was unable to complete this course due to the inability of his knee to permit him to undertake the tasks involved in abseiling.

16. The plaintiff had intended to recommence his diploma course in social welfare, but in the beginning of the 2020 academic year, the course was suspended due to the impact of the COVID-19 pandemic.

17. The plaintiff intends to complete his welfare course with a view to obtaining work as a social worker, aiding youth.

18. The plaintiff has been surviving on a Newstart allowance for the past 3 years.

Liability

The plaintiff’s cycling speed

19. The plaintiff gave evidence in chief that he was riding his bicycle at no more than 10 to 12 kilometres per hour immediately prior to the collision. There is a dispute between the parties as to this fact.

20. Earlier in his statement of 28 February 2017 (Exhibit D3), the plaintiff stated that he thought that he was “going not that fast, maybe 20 kilometres an hour.” Similarly, the plaintiff told the road accident reconstruction expert, Mr Mark Byrnes (qualified by the plaintiff), that he was travelling at no more than 20 kilometres per hour.

21. Mr William Bailey, the accident reconstruction expert qualified by the defendant, was of the view that a higher speed was more probable given the fact that the plaintiff’s evidence was that he was unable to avoid the collision.

22. To put the difference in the two postulated bicycle speeds in context, it was agreed between the two experts that walking speed is generally considered to be 5 kilometres per hour.

23. To my mind, it is unlikely that the plaintiff was riding at twice walking speed. Indeed, if he was, it seems difficult to understand why he didn’t see the defendant’s vehicle and avoid the accident. When the plaintiff stated in his statement of 28 February 2017 (exhibit D3) that he was “going not that fast, maybe 20 kilometres an hour”, this evidence needs to be considered in the context of the fact that the plaintiff was a very experienced cyclist, to whom 20 kilometres per hour was probably not considered “fast”.

24. In all of the circumstances, I am of the view that it is more likely than not that the plaintiff was riding at a speed which he initially disclosed in both his statement and to Mr Byrnes, that is to say, approximately 20 kilometres per hour.

Events leading up to the collision

25. The defendant was a sales executive working within an industrial estate on Percival Road. He had just driven out of the car park of his place of employment for the purposes of meeting a customer. The unchallenged evidence was that he was driving at 5 kilometres per hour as he approached the juncture of the driveway and the footpath. He was driving immediately north of the expansion joint which informally marked the middle of the driveway. The plaintiff was approaching from the defendant’s left as he proceeded out of the driveway. The defendant did not stop prior to traversing the pathway.

26. While exiting the driveway, the defendant’s vision to the left was substantially obstructed by vegetation and a black, iron, palisade fence located along the side of the driveway and stretching along the property boundary with Percival Road. Mr Bailey gave evidence that the visual effect of the two fences to a person moving, from the aligned to obstructed position, when seen in peripheral vision, would be to create an almost complete obstruction of vision to the driver of a vehicle in the position of the defendant. Mr Bailey added that a large sign to the north-west corner of the property also created a complete obstruction. Mr Byrnes agreed with Mr Bailey’s description of the obstruction.

27. The defendant gave evidence that prior to arriving at the footpath, he had attempted to look to the left but found his view of the footpath obstructed. He did not stop at the footpath, crossing it at 5 kilometres per hour. Immediately prior to crossing the footpath, he was looking to the right to survey the state of the traffic on Percival Street. He did not look left again before proceeding to cross the footpath.

28. Both the plaintiff and defendant said that the first time on which they saw each other was at the moment of collision.

The point of impact

29. The plaintiff marked on a diagram (page 36 of Exhibit P1) the point of impact. This disclosed the collision occurring slightly to the west of the prolongation of the footpath on the driveway. The importance of this is that the further to the west the point of impact, the less vision was available to the defendant due to the obstructions to which I have earlier referred.

30. Caution needs to be exercised in relation to both page 36 of Exhibit P1 and Exhibit P2, a photograph upon which the plaintiff also marked the point of impact. Both markings were made with a thick, felt pen, a writing instrument not amenable to precision.

31. Taken on their face, the markings suggest that the impact occurred within the driveway of the industrial estate from which the defendant was leaving. This would involve the plaintiff deviating away from the footpath and into the driveway portion of the industrial estate. No one suggested that this is where the accident occurred. It was agreed that the point of impact was on the footpath.

32. I believe that the correct manner in which to consider both depictions of point of impact is to consider them to represent that point on a north to south aspect and not an east to west aspect. This, I think, was clear from the fact that when marking page 36 of Exhibit P1 the plaintiff was asked to choose between four diagrams of road crash analysis, the differences between each being in relation to the position of the stylised motor vehicle on a north to south aspect (transcript page 19, lines 39-44). The diagrams, part of an expert’s joint report all showed the point of impact as being on the pathway at point 3.5 metres from the north corner post.

33. When I raised this issue with the parties, Mr Lynch of counsel, who appeared for the plaintiff, accepted that Exhibit P2 and page 36 of Exhibit P1 should be considered as being marked solely in relation to the north to south aspect of the positioning of the defendant’s vehicle. I did not understand Ms Allen of counsel, who appeared for the defendant, to demur from that proposition.

The expert evidence

34. The two experts agreed that the defendant would not have been able to avoid a collision if he did not stop prior to crossing the prolongation of the footpath. The experts used the expression “prolongation” to refer to the western dotted line denoting the notional footpath on the diagram of which page 36 of Exhibit P1 formed part. They agreed that this was the case regardless of whether the plaintiff was travelling at 10 kilometres per hour, or 20 kilometres per hour.

35. Thus the dispute between the experts was reduced to their conclusion as to whether the accident would have been avoidable had the defendant come to a complete stop prior to entering on and crossing the footpath.

36. Mr Bailey, who was called by the defendant, said that even if the defendant had stopped at the prolongation of the footpath, there would have been insufficient time to avoid the accident. This was so, he opined, as the perception response time available to the defendant would be less than would be required to take steps necessary to avoid the accident. He expressed this conclusion was regardless of whether the plaintiff was travelling at 10 kilometres per hour, 12 kilometres per hour, or indeed 20 kilometres per hour.

37. Mr Byrnes did not agree that the perception reaction time should be factored into the equation, if the defendant had stopped. He was of the view that the accident would have been avoided if the defendant had stopped the vehicle prior to entering the prolongation of the footpath.

38. The appropriate legal context of the expert evidence is in relation to the issue of causation. This I understood to be accepted by the parties. The correct analysis, it seems to me, is to be as follows.

39. If the defendant was under no duty to stop prior to entering the footpath, then there was no breach of duty by the defendant in failing to do so. On this scenario no causation issues arise.

40. If on the other hand there was such a duty then that duty was breached. On this scenario it becomes necessary to determine which of the experts’ opinions was to be preferred.

41. If Mr Bailey’s opinion is to be preferred, then even if the defendant had stopped, the accident was inevitable, and thus there is no causal link between the breach and the damages. If Mr Byrnes’ view is to be preferred, then an issue as to causation requires resolution.

Legal Principles

42. The principles concerning the standard of care imposed on the defendant are set out in section 5B of the Civil Liability Act. Those provisions apply to motor vehicle accidents (see section 3B of the Civil Liability Act).

43. The duty owed by a driver of a motor vehicle to users of the roadway, including pedestrians, was conveniently summarised by Meagher JA in Marien v Gardiner (2013) NSWCA 396 (“Marien”) at [33]-[37] as follows:

“[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act 2002, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s5B.

[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).

[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path".

[36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47]. the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.

[37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick [1985] 2 MVR 74 and Morris v Luton [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.”

44. The plaintiff referred to the decision of the High Court in Manley v Alexander (2005) 223 ALR 228, 231 at [12] per Gummow, Kirby and Hayne JJ (“Manley”), their Honours stated:

“…the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”

45. There was no inconsistency between Marien and Manley and as such the parties were understandably in agreement as to the applicable legal principles.

46. The plaintiff submitted that while the question of whether the defendant failed to exercise the requisite reasonable care, and if so, whether this caused injury to the plaintiff, is a question of fact, and that question of fact is informed and illuminated by principles or guidelines, such as those considered and discussed in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

47. The plaintiff submitted that one relevant principle is that a person driving a motor vehicle on a public road should, as a reasonable person, appreciate that there is a significant risk of causing serious and perhaps catastrophic injury to other persons; and for that reason should, as a reasonable person, exercise a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections (Turkmani v Visvalingam [2009] NSWCA 211 at [27-28]). The plaintiff argued that this is particularly applicable to cases involving pedestrians or cyclists.

45. In this regard the plaintiff relies on the provisions of rule 74 of the Road Rules 2014 (NSW) (“Road Rules”) which required the defendant to give way to any pedestrian or vehicle on a road related area which the vehicle crosses to enter the road.

46. The defendant submitted that the standard of reasonable care imposed on the defendant at common law does not necessarily equate to a requirement to observe the road rules (see Sharpe v Gordon; QBE Workers Compensation Australia Limited v Gordon [2006] NSWCA 347 at [5]). I did not understand that proposition to be in dispute.

47. That said, I am of the view that the existence of rule 74 is an important factor to be taken into account in determining breach for the purposes of section 5B of the Civil Liability Act (see Penrith City Council v East Realisation Pty Ltd (in liq) (2013) 63 MVR 180, 193 at [53] per Tobias AJA, 184 at [4] per McColl JA).

48. As Starke J observed in Henwood v Municipal Tramways Trust (SA) [1938] 60 CLR 438 contravention of a statute or regulation “would afford evidence of want of reasonable care and caution on the part of a person who so acted.”

49. The defendant acknowledged that he could have stopped his vehicle before the prolongation of the footpath. He submitted however, that in the absence of any vision to the footpath on his left, and without knowing what if any pedestrian or cycling traffic was approaching, a failure to stop could not be considered unreasonable. The defendant went on to submit that he took reasonable care by entering the footpath and its immediate environs out of the driveway at a walking speed of 5 kilometres per hour, knowing that:

1. The front of the defendant’s vehicle would have been visible to approaching pedestrians or cyclists before he had any vision of their approach; and

2. The defendant could stop in time to avoid a collision with a pedestrian or cyclist travelling at a similar speed.

53. In my view, the duty of a driver to users of the roadway, including cyclists, required the defendant to completely stop at the western prolongation of the footpath. It also required the driver to look carefully. The defendant’s contention that the obstruction of his vision to the left somehow permitted a finding that it was appropriate for the defendant to continue to proceed at five kilometres per hour, was to my mind, counter intuitive.

54. In my opinion, the absence of a clear vision to the left made the need to stop imperative. After such stop, a reasonable driver would edge onto the footpath until adequate vision to both left and right was obtained before completing the traversing of the footpath. By so doing, a reasonable driver would provide to any approaching pedestrian or cyclist to his left an opportunity to see the bonnet of his vehicle edging onto the footpath. This opportunity would be afforded to the cyclist or pedestrian prior to the driver obtaining a clear view to his left, and thus would permit the cyclist or pedestrian to begin to see the bonnet of the vehicle, and adjust his or her behaviour accordingly to avoid the collision.

55. In my view, the duty of the reasonably careful driver in the circumstances required that driver to concentrate his or her attention on the foot and bicycle traffic on the footpath to ensure that the driver’s vehicle could safely cross the footpath, before turning attention to the traffic state on Percival Road. This would involve careful checking left and right, and to the extent to which the vision to the left was impaired, required added attention to that side.

56. The evidence of the defendant was that he looked left before he approached the footpath, found his vision impaired to that side, and at the time of impact was looking to the right to survey the traffic state to the southern aspect of Percival Street.

57. This, together with his failure to stop, involved failure to take reasonable care in the circumstances.

58. I thus find that the defendant breached the duty of care which he owed to the plaintiff.

59. I should add that the plaintiff submitted that the defendant’s actions in driving the plaintiff home after the accident, and paying $180 to replace his bicycle’s front wheel, together with his gesture of paying to the plaintiff’s landlord a week’s rent while the plaintiff was convalescing, should be taken as an admission of liability. I disagree. These acts, in my mind, were acts of commendable charity.

Causation

60. This finding raises issues of causation pursuant to section 5D of the Civil Liability Act. It is clear from the authorities that the causal requirements under section 5D reflect the “but for” test (see, for example, Warth v Lafsky [2014] NSWCA 94).

61. I have already described the crux of the contest between the experts. It can be summarised as whether the collision was inevitable regardless of whether the defendant stopped before the footpath prolongation or not. Mr Bailey, called by the defendant, opines “yes”, Mr Byrnes opines “no”.

62. The differences in their opinions are reflective of the different conceptual approaches which they took to the issue. Mr Bailey’s view was that even if the defendant had stopped at the footpath, there was insufficient perception reaction time (“PRT”) available to the defendant to allow him to avoid the collision. It should be noted that in his analysis Mr Bailey undertook no analysis of his defendant’s actual capacity to react to events around him. Rather, the PRT based analysis was based on averages of reaction time derived from the academic works of others. Mr Bailey acknowledged that PRT varied between individuals, an, albeit extreme, example of which being the likely much quicker PRT of a Formula One racing driver when compared to the average driver.

63. Mr Bailey’s analysis was thus not founded on any findings in relation to the facts of this case.

64. Mr Byrnes adopted a time-distance equation approach which involved working with the known (or averred) facts in relation to this accident. He acknowledged that this approach involved looking at the facts surrounding the collision and working backwards (transcript page 87, line 34-42).

65. Ms Allen of counsel, who appeared for the defendant, criticised this approach. She contended that it was infected with a form of hindsight analysis not available for use in the tort of negligence. I do not accept that this is the case. It is well known that hindsight is not available in deciding questions of duty of care and breach. I do not understand there to be any such inhibition in relation to the issue of causation. Ms Allen’s case was that the accident was inevitable come what may. That proposition inherently involves looking backwards from known events. Mr Byrnes’ analysis is called in rebuttal of that proposition. It is, in my view, available for that purpose.

66. Mr Byrnes opined that if the defendant had stopped for as little as a second then the bicycle would have cleared the area of collision without incident (see transcript page 79, line 20 to page 82, line 20).

67. He relied in addition on the fact that if the defendant had stopped and then edged forward then the line of sight to his left would be gradually opened up, giving the defendant an enhanced opportunity to see the plaintiff.

68. Finally, he opined that by stopping and edging out the defendant would have allowed his vehicle to gradually come into the line of sight of the plaintiff, who could have taken evasive action to avoid the collision.

69. I prefer the view of Mr Byrnes based, as it is, on the actual facts known in relation to the collision. This should be contrasted with Mr Bailey’s opinion the basis for which is entirely theoretical. I also believe that the ultimate conclusion of Mr Bailey, namely that even if the defendant had stopped and crept across the footpath the accident still would have occurred, as ignoring the human reality of what would have occurred.

70. In addition, I am unconvinced that PRT is an analysis which has any helpful application to the case in point where the theoretical basis for the opinion is that the defendant hypothetically stopped before crossing the footpath. PRT is regularly used in typical motor vehicle accident scenarios involving two moving vehicles. Its application involves usually the analysis of the reaction time of each driver to the unfolding events, together with an analysis of the time which would be required to engage avoidance measures; typically braking, and the time required before the application of brakes caused a relevant reduction or elimination of speed.

71. It seems to be that this analysis has little application to the case of a hypothetical stationary driver.

72. In summary therefore, I find that the collision was causally linked to the defendant’s breach of duty.

Contributory Negligence

73. The defendant contended that in the event that I found negligence on his part, I should also find that the plaintiff contributed to the accident by his own negligence.

74. Section 138 of the Motor Accidents Compensation Act provides that both the common law and enacted law as to contributory negligence apply to damages in respect of a motor vehicle accident. If a finding of contributory negligence is made, damages are to be reduced by such percentage as the Court thinks just and equitable in the circumstances of the case (s138(3) of the Motor Accidents Compensation Act).

75. In addition, the provisions of s5R and s5S of the Civil Liability Act also apply to motor accidents, by virtue of s3B of the Civil Liability Act. In particular, the standard of care required of a person who suffered harm is that of a reasonable person in the position of that person, in this case the plaintiff. Section 5S of the Civil Liability Act permits a Court to reduce damages by reason of contributory negligence of up to 100% if the Court considers it just and equitable to do so.

76. The Court is required to carry out a comparative analysis of the culpability of both the plaintiff and the defendant (see Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492). This involves an analysis of the degree of departure from the standard of care by a reasonable person (Pennington v Norris (1956) 96 CLR 10 at [16]) and in addition, an analysis of the relative importance of the acts of the parties causing the damage (Stapley v Gypsum Mines Limited (1953) AC 663 at [682]).

77. The common law position has long been that in relation to the question of the relative importance of the respective acts, as a general proposition, that given the destructive power of a motor vehicle a heavier responsibility usually falls on the motorist in claims by pedestrians, even if their degree of carelessness may be roughly equal (see Talbot-Butt v Holloway (1990) 12 MVR 70 at [74] per Handley JA).

78. Ms Allen submitted that following the enactment of s5R of the Civil Liability Act this proposition was to be doubted. She referred me to the decision of the Court of Appeal in T and X Company Pty Ltd v Chivas [2014] NSWCA 235 (“T and X”) and to the judgment of Basten JA culminating at [54], with whom Barrett JA concurred. In that decision Basten JA cast doubt about whether authorities such as Talbot-Butt remained relevant under the Civil Liability Act regime.

79. Ms Allen very fairly drew my attention to the fact that Beazley P dissented on the point, and to the fact that other judges of the Court of Appeal have expressed views consistent with Beazley P.

80. At [54] in T and X, Basten JA expressed the view that the effect of the Civil Liability Act is to concentrate attention on the fact that the destructive force of a motor vehicle needs not only to be borne in mind by the driver, but also by a pedestrian. The same proposition, I would assume, would apply to a cyclist.

81. I propose to approach the issue of contributory negligence on the basis set forth by Basten JA, that is to say, on the basis that both driver and cyclist should be equally conscious of the destructive power of a motor vehicle to a cyclist, and adjust their behaviour accordingly.

82. The defendant submitted that in conducting the required comparative fault analysis the Court would consider the following matters as being important:

1. The plaintiff’s longstanding experience as a cyclist;

2. The fact that the plaintiff was riding his bicycle on the footpath in breach of rule 250 of the Road Rules;

3. That the plaintiff was travelling at an excessive speed in the circumstances, illustrated by his inability to avoid the collision;

4. That the plaintiff did not reduce the speed of his bicycle as he approached the driveway;

5. The plaintiff’s vision of motorists exiting the driveway to his right was obscured;

6. The plaintiff’s line of sight was such that he ought to have been able to see the front of the defendant’s vehicle exiting the driveway before the defendant was able to observe the plaintiff;

7. The plaintiff’s failure to observe the defendant at all before impact meant that he was not keeping a proper lookout.

83. I accept that these factors were relevant to the assessment of contributory negligence.

84. As I have earlier indicated, I find that the plaintiff was riding on the footpath, not a shared cycleway, was itself negligent. This want of care in riding on the footpath being compounded by the fact that he was moving at a speed of 20 kilometres per hour, which was, in my view, excessive in all of the circumstances. I take this view as the plaintiff was an experienced cyclist, and as such I do not accept that the traffic conditions on Percival Road forced him to ride on the footpath contrary to Road Rule 250. I am also of the view that had he not been riding as quickly as he was, and had he been keeping a proper lookout, then he may have been able to take steps to avoid the collision.

85. The defendant submitted that the comparative analysis necessary in adjudging contributory negligence ought to lead me to the conclusion that an appropriate reduction in damages on account of contributory negligence is 80%. I do not believe that this is a true reflection of the respective fault of the parties.

86. I am of the view that the plaintiff’s contributory negligence was such as to lead to the conclusion that the plaintiff’s contributory negligence amounts to 30%, with the effect that it is appropriate to reduce damages on that account to 70% of that which otherwise would be awarded.

Damages

87. I have earlier indicated that the plaintiff is a qualified butcher. The parties were agreed that the damage to his knee was such that he would never be capable of undertaking his primary work as a butcher.

88. Assessing the most significant heads of damage in this case is greatly complicated by the existence of factors which may impact on the plaintiff’s capacity to work, quite independent of this accident.

89. Most prominent in this regard is the plaintiff’s by a long history of substance abuse. This has culminated in recent years with the addictive use of methamphetamine. The plaintiff was described by Dr Nadine Ezard of St Vincent’s Hospital as “a chronic relapsing type.”

90. Dr Ezard’s report of 17 December 2018 is helpful in this regard. She recounts that the plaintiff has a long history of stimulant use disorder dating back to his teens. Over time the plaintiff had attended rehabilitation programs on more than 13 occasions. These programs involved treatment extending from between 3 weeks to 13 months.

91. Dr Ezard recounts a history of job loss, homelessness, and social isolation attributable to the plaintiff’s substance abuse. She reports that the plaintiff had been diagnosed with bipolar affective disorder, and had attempted suicide.

92. As at the date of her report (December 2018) Dr Ezard recounted that the plaintiff was undergoing treatment which commenced in February of the same year. She opined that the continued effect of the plaintiff’s substance abuse disorder and depression rendered him unfit for work.

93. The defendant pointed to the fact that in the 2016 calendar year the plaintiff was unemployed, until he commenced work with Friends of Meat, five days before the motor vehicle accident. During 2016, indeed including his brief period of employment at Friends of Meat, the plaintiff was in receipt of Centrelink Medical Certificates certifying him unfit for work, as a result of his drug dependency.

94. The defendant submitted that as a result of his psychological and substance abuse problems, it was likely that he would have experienced periods of unemployment regardless of his accident and will continue to do so. In other words, the defendant submitted that I should find that the plaintiff’s history of interrupted work would have continued both up to the date of the hearing and into the future.

95. I believe that there is merit in that submission, and I so find.

Assessment of Damages

96. The plaintiff is not entitled to damages for non-economic loss because he has not exceeded the required threshold for an award of such damages under section 131 of Motor Accidents Compensation Act.

97. The plaintiff’s claim is limited to damages for past and future economic loss, past and future treatment expenses, and past and future care.

98. The parties were agreed that the plaintiff’s claim for damages for past economic loss is not capable of precise mathematical calculation. This was due to the presence of the plaintiff’s substance abuse disorder, bipolar disorder, and depression. As I have indicated, these factors would have interfered with the plaintiff’s employment regardless of the accident.

99. As a result of the existence of these factors the parties were agreed that, namely, that damages for both past and future economic loss are best assessed by way of a buffer (Penrith City Council v Parks [2004] NSWCA 201).

100. These frankly unknowable aspects of the plaintiff’s past and future loss make the determination of a buffer figure an extremely impressionistic task. That difficulty acknowledged, I assess past economic loss (including of superannuation) to be at $75,000.00.

101. This assessment is, to a limited degree, influenced by the plaintiff’s 2016 Tax Return, which disclosed a taxable income of $43,471. That figure needs to be treated with caution as it includes $13,760 in the form of Government payments, which I have discounted in my determination of a buffer figure.

102. As to damages for the future loss, the Court has to be satisfied as to the plaintiff’s most likely circumstances but for the accident (s126 Motor Accidents Compensation Act). The defendant submitted that consistent employment as a butcher did not accord with the plaintiff’s most likely circumstances, given his background of psychiatric issues and substance abuse issues to which I have earlier referred. I accept that submission which was not put in issue by the plaintiff.

103. As with past economic loss, the parties were agreed that it was impossible to determine future economic loss with any precision.

104. As a consequence it was agreed that this head of damage was best also assessed by way of a buffer. As may be expected, the imponderables confronting an accurate assessment of past economic loss are more daunting in respect of future economic loss.

105. The plaintiff intends to recommence his TAFE course with a view to qualifying as a youth worker. There was no evidence as to the likelihood of the plaintiff achieving that goal, although Mr Ross Girdler in his vocational assessment of the plaintiff in the Employability Report prepared by Prudence Consulting pointed out that the fact that the plaintiff has a criminal record may inhibit his employment prospects in that field. There was no evidence as to the nature of his criminal record. There was similarly no evidence of wage rates for youth workers.

106. Notwithstanding the difficulties to which I have referred, I assess future economic loss (including superannuation) at $150,000.

107. The plaintiff’s past treatment expenses have been agreed at $23,341.45. This figure comprises payments made by the defendant’s CTP insurer pursuant to section 83 of Motor Accidents Compensation Act in the sum of $21,329.05, and Medicare expenses of $2,012.40.

96. The plaintiff claims future out of pocket expenses at $23,380.00. This is so notwithstanding the fact the plaintiff was not receiving treatment of any nature. The defendant submitted that in those circumstances no damages should be awarded for future treatment expenses. I accept this submission.

97. The plaintiff also seeks future paid domestic assistance in the sum of $25,489.80. I do not consider that the plaintiff’s evidence in relation to the effect of his injuries on his undertaking household tasks provides an evidentiary basis to warrant an award of damages for this head of damage.

Conclusion on Damages

110. I find therefore the following by way of damages:

1. Past treatment expenses $21,329.05;

2. Past wage loss $75,000;

3. Future loss of earning capacity $150,000; consequently

4. Total damages in the sum of $246,329.05.

111. As a consequence of my finding of 30% contributory negligence there should be a judgment and verdict for the plaintiff in the sum of $172,430.33.

Orders

1. Judgment and verdict for the plaintiff in the sum of $172,430.33.

2. The defendant pay the plaintiff’s costs on an ordinary basis up until 3 May 2020 and thereafter on an indemnity basis.

**********

Amendments

30 July 2020 - Typographical error in the order amended.

Decision last updated: 30 July 2020