Catherine Robertson v Joshua Liebmann

[2015] NSWDC 231

District Court

New South Wales

Medium Neutral Citation:	Catherine Robertson v Joshua Liebmann [2015] NSWDC 231
Hearing dates:	9 – 11 September 2015
Decision date:	01 October 2015
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the plaintiff. For Orders see [90]
Catchwords:	Motor accident; liability; contributory negligence; assessment of damages
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW) Road Rules 2014 (NSW)
Cases Cited:	Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 Davis v Swift [2014] NSWCA 458 Gordon v Truong [2014] NSWCA 97 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Manley v Alexander (2005) 80 ALJR 413 Marien v Gardiner; Marien v H J Heinz Company Australia Limited [2013] NSWCA 396 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Nominal Defendant v Bacon [2014] NSWCA 275 Nominal Defendant v Ross (No. 2) [2014] NSWCA 370 Purkess v Crittenden (1965) 114 CLR 164 T & X Company Pty Limited v Chivas [2014] NSWCA 235 Teuma v CP & P K Judd Pty Limited [2007] NSWCA 166 Verryt v Schoupp [2015] NSWCA 128 Warth v Lafsky [2014] NSWCA 94 Watts v Rake (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Catherine Robertson (Plaintiff) Joshua Liebmann (Defendant)
Representation:	Counsel: A Lidden SC with M Sciglitano (Plaintiff) C Allan (Defendant)   Solicitors: Brydens Compensation Lawyers (Plaintiff) T L Lawyers (Defendant)
File Number(s):	14/210070
Publication restriction:	Nil

Judgment

The plaintiff’s claim

1. The plaintiff claims damages for personal injuries she suffered on 19 August 2012. At approximately 5pm that day, the plaintiff was a pedestrian on Newman Street, Newtown. It is common ground that Newman Street runs generally east-west, and the plaintiff was walking in a generally easterly direction along the northern footpath of Newman Street when she came to the intersection of Thomas Street. Thomas Street forms a T-intersection with Newman Street, which ends a short distance to the east of the intersection.

2. As the plaintiff crossed Thomas Street, she was struck by a vehicle being driven by the defendant, which was reversing into Thomas Street so as to effect a turn, and then proceed in a westerly direction along Newman Street.

3. The plaintiff suffered injuries to her left wrist and right knee. She has not satisfied the threshold in s 131 of the Motor Accidents Compensation Act 1999 (NSW) (‘MACA’), and therefore is not entitled to damages for non‑economic loss.

Defence

4. The defendant denies liability for the plaintiff’s injuries and further alleges contributory negligence on the part of the plaintiff. The particulars of contributory negligence are as follows:

1. “Failure to keep a proper lookout.

2. Failure to exercise reasonable caution when crossing the roadway

3. Failure to stop and allow the defendant’s vehicle to pass.

4. Failure to ensure that roadway was clear before attempting to cross same.

5. Moving into the path of a reversing vehicle.

6. Entering upon and attempting to cross the roadway when it was unsafe to do so because of traffic conditions.

7. Failure to ensure that her presence on the roadway was known to the defendant.

8. Failure to ensure that her intention to cross behind the defendant’s vehicle was known to the defendant.

9. Attempting to cross the roadway at a time when it was unsafe to do so by reason of the lighting conditions and the dark colour of her clothing.

10. Adopting an unsafe position in relation to a reversing vehicle.

11. Failure to warn the defendant of the danger of proceeding.”

5. The defendant has further pleaded:

“9. At the time of the accident the plaintiff was, or ought to have been, aware of the obvious risk of her actions in that she crossed the road into the path of a reversing vehicle, an action that was fraught with danger, pursuant to Section 5F, 5G, 5H and 51 of the Civil Liability Act 2002 (as amended).”

Liability

The plaintiff’s evidence

6. It was common ground that heading in an easterly direction, a short distance after Thomas Street intersected with Newman Street on the left, it formed a cul-de-sac. The plaintiff gave evidence that she was walking in an easterly direction on the left hand side of Newman Street, when she saw a Mazda motor vehicle pull out from the kerb and proceed in the same direction towards the cul-de-sac. She gave the following evidence:

“Q: What did you then see it do?

A: He began to do a u-turn.

Q: When he commenced that u-turn, were you on the road surface or the footpath, or where?

A: I was on the footpath at the intersection.

Q: Intersection of what?

A: Thomas and Newman Streets.

Q: So that u-turn having commenced, what did you then do?

A: I started to cross Thomas Street.

Q: This means of course you’re behind the Mazda?

A: Yes.

Q: As you did so, did you keep the Mazda in your eye?

A: I glanced briefly to my left, but only for a second.

Q: What was it then doing?

A: It was still doing a u-turn.

Q: So what did you then do?

A: I kept walking. I looked ahead –

Q: How far onto the road surface did you actually get?

A: Three or four steps.

Q: What happened then?

A: The car reversed into me.

Q: Now tell me what was the first thing that you experienced in that respect? Did you see it, or did you feel it, or was it a combination of both; what was it that—

A: Combination of both. I was knocked to the ground.

Q: You mean you saw it and you felt it?

A: Yes.

Q: Whereabouts on your body did the vehicle strike you?

A: I have a memory of putting my hand up, my left hand up.

Q: Which part of the vehicle struck you?

A: The bumper, the back of the car.

Q: Now you can tell me what happened to the passage of your body having been struck?

A: I was knocked to the ground.

Q: In that fall did you hurt yourself?

A: Yes.

Q: What did you hurt?

A: My left wrist was what I noticed first because it was very obviously a funny shape. My right knee I noticed a little while after that when I tried to get to my feet.”

7. The plaintiff was then assisted by a number of passers-by and an ambulance was called, which took her to Canterbury Hospital.

8. In cross-examination, the plaintiff gave evidence that she was fairly close to the defendant’s vehicle when it pulled out from the kerb and that she was aware that the vehicle was on Newman Street, and she saw it proceed down Newman Street. She was walking at a normal walking speed and carrying some shopping. The plaintiff described the defendant’s vehicle as moving “fairly slowly” and that it was pulling away from her as she was walking down Newman Street. She gave the following evidence:

“Q: You said that you observed him start to do a u-turn?

A: Yes.

Q: Where were you when you first observed him to commence a u‑turn?

A: I think either at, or almost at, the corner with Thomas Street.

Q: When you say he began to do a u-turn, what did you actually observe that led you to believe he was starting a u-turn?

A: Well, he was turning to his right and just moving in the general direction of someone doing a u-turn. He was, I thought, close enough to Thomas Street to have given himself room to do the turn, so he had actually started to turn to his right.

Q: When you noticed him doing the u-turn, was the vehicle still parallel to the alignment of the street, or had it actually started to move around to the right?

A: It had started to move around.

Q: Were you able to observe where the front of his vehicle went when he started to turn right, in terms of the kerb and guttering, for example?

A: He seemed to be following the curved path of the – you know, the road barrier that sort of scooped out.

Q: Did you keep your eye on him the whole time he was doing that u-turn?

A: I glanced briefly to my left.

Q: When you say you glanced briefly to your left, do you mean glanced briefly up Thomas Lane?

A: Up Thomas Street, yes.

Q: Is it the case that you looked up Thomas Street and maintained your concentration to what was happening up Thomas Lane, rather than what was happening to the right side of you?

A: I don’t think I took my eyes off him for very long – seconds. There’s underground parking and you can’t see if someone is coming out of the underground parking until you’ve moved a few steps into the road, so I glanced that way to make sure there was nothing come out that way, and then turned back.

Q: Is it the case that as you reached the kerb and gutter of Thomas Lane, you were concentrating on looking to your left by taking those few steps required to see what was coming out, if anything, from those car parks?

A: I wouldn’t say I was concentrating on it. I looked to my left to make sure that there was nothing coming that way, because I was confident that the driver was doing a u-turn and therefore was in no danger of coming near me, so I wanted to check that there was nothing coming from the other way as well.

Q: Did you continue to look to the left until you were at a point on the roadway that you could actually see the exit or entrance to the car parks?

A: No.

Q: Is it the case that the first time you saw the vehicle reversing it was when it actually hit you?

A: Yes.

Q: Until that point, you didn’t actually see it move from where you had last seen it in a right hand turn position, in the bubble of the cul-de-sac. You didn’t see it move from that position until the point of impact. Correct?

A: No, it was – but it was seconds.”

9. The plaintiff was asked whether the impact was particularly hard, but said “No, I don’t think he hit me very hard. He just kept going.”

10. The plaintiff was cross-examined on her statement to the police (Ex 3). In that statement she had said:

“I saw a car to my right and assumed he was just doing a u-turn at the end of Newman Street where it’s blocked to through traffic.

I looked to my left as I was crossing to check for cars. Next thing I know the car that had been to my right had backed into me.”

11. The plaintiff described the second paragraph above, as a simplified description of the event. She gave the following evidence:

“Q: You see, you told the police officer that you were looking towards the left in that statement. You didn’t say anything about glancing to your left and then going back to look towards your right, did you?

A: No, I didn’t, I didn’t.

Q: I want to suggest to you that before you even stepped off the kerb you did not look to your right at all. Do you agree or disagree with that proposition?

A: I disagree with that.

Q: I suggest to you that the defendant had already commenced his reverse before you stepped off the kerb. Do you agree or disagree with that proposition?

A: I disagree with that.”

12. In further cross-examination by leave, the plaintiff was asked:

“Q: Can I suggest to you that in fact the vehicle didn’t veer to the right at all, that it just moved straight ahead to the end of the bulb-like area at the end of the cul-de-sac?

A: My memory is that it veered to the right.”

The defendant’s evidence as to liability

13. The defendant gave evidence that he had been a driver for 20 plus years and had been driving the particular vehicle for two and half years at the time of the accident. When he pulled out from the parking space on Newman Street, he proceeded east at less than 10 kilometres an hour. He gave evidence that there was a vehicle parked on the right hand side of Newman Street, i.e. the southern side, just in front of, or just behind the pole with a “no parking” sign on it shown in Ex A. He gave the following evidence:

“Q: As you drove down to the end of Newman Street, what did you do?

A: I came to a rest at the end of Newman Street, I checked my mirrors, those being my – both side mirrors and a rear vision mirror, and I also checked my blind spot and began reversing.

Q: As you drove down the end of Newman Street, were you travelling straight ahead or did you veer to the right at any stage?

A: I took a straight path.

Q: Did you come to a stop at any stage?

A: I came to a stop at the end of Newman Street.

Q: Then what did you do?

A: And then, as mentioned before, I checked my side mirrors, being the left and right exterior, my rear vision mirror, my blind spot, and then I turned and began reversing.

Q: When you checked all of those mirrors and your blind spot, did you see anything?

A: No.

Q: Then as you started reversing, what speed were you travelling?

A: Around five kilometres an hour.

Q: And then what happened?

A: And then I began turning into Thomas Street. I then felt a bump, I guess you can describe it as. I put the handbrake on – and then I heard some shopping, or what I later found out to be shopping bags hitting the ground. I put the handbrake on, got out of the car and walked round the back.

Q: What did you see when you walked around the back?

A: I saw a lady on the road, on – sort of on her back and some shopping bags.”

14. The defendant’s statement to police was admitted over objection as Ex 6.

15. In cross-examination the defendant agreed that he had, over the 20 years he had held a licence, suffered numerous disqualifications and suspensions. The defendant agreed that he had been issued a new licence on 8 August 2012, just before this incident.

16. It was put to the defendant that he never turned his head and had a look around him when reversing the vehicle, which he denied.

17. The defendant described checking his blind spot as, “That means turning my head over my shoulder to look at where my mirrors do not see.” It was put to him that he never did that, which he denied. The defendant agreed that he had not mentioned to the police in his police statement that he had turned his head to look for pedestrians. He also agreed that the statement only said that he checked his mirrors. The defendant agreed he had the opportunity to tell those matters to the police and it was put to him that he did not tell the police because it didn’t happen, which he disputed. He gave the following evidence:

“Q: The truth of the matter is, that you commenced to do a u-turn at the end of the cul-de-sac, isn’t it?

A: No.

Q: Then you changed your mind and you decided to reverse. That’s the truth of the matter, isn’t it?

A: No.

Q: The time that elapsed between you putting your vehicle into reverse and feeling the impact was only a second or two. Is that right?

A: May be two or three or four. I’m not sure.

Q: You reversed no great distance did you?

A: It was more than 10 metres.

Q: Ten metres? Is that what you say; you reversed more than 10 metres?

A: From my recollection, yes.

Q: While you were reversing 10 metres, were you continuing to look around you?

A: I was looking through the back window.

Q: Through your mirror or with your head turned?

A: With my head turned.

Q: Pretty obviously the pedestrian was there behind you, and over this 10 metres turning around looking through your back window, you never even caught a glimpse of it. Is that right?

A: I hadn’t seen the pedestrian no.

Q: But you weren’t looking through your back window over a distance of 10 metres at all, were you Mr Liebmann?

A: I was.”

18. There was no re-examination of the defendant.

Evidence of Renee Liebmann

19. Mrs Liebmann was in the front passenger seat of the vehicle driven by the defendant. She marked the place where the vehicle was parked on Newman Street by placing an “x” on Ex C. It was approximately three car lengths back from the intersection of Newman Street and Thomas Street. Mrs Liebmann described the defendant as driving slowly down Newman Street. She was asked:

“Q: When he reached the end of the cul-de-sac, what did he do?

A: He reached the end of the cul-de-sac, he checked his mirrors and his blind spot and then his blind spot in the middle of the car as well.

Q: Before he started to reverse, did he change the motion of his car from being straight ahead, or did he veer to the left or the right?

A: No, he – straight ahead.

Q: Did you yourself look around to see if you could see anybody behind the car?

A: I did, yes.

Q: What did you do?

A: I looked just very briefly to the left and then to my right.

Q: When your partner started to reverse the vehicle, what speed was he travelling?

A: Very slowly.

Q: Was he going greater than walking speed, running speed, or even great than that?

A: No, it would have been walking speed.

Q: What next happened?

A: We were reversing slowly and we heard a bump and immediately stopped the car, got out of the car, walked around the back of the car, and saw a lady on the ground with a couple of people running over to her.”

20. The statement of Mrs Liebmann to the police was admitted over objection as Ex 7.

21. In cross-examination, it was put to Mrs Liebmann that she did not herself look to her left and then turn to look over her right shoulder and look behind the car. It was put to her that she was making that up, to which she replied:

“No. From my memory, that’s what happened.”

22. Exhibit 7 was a statement taken after she had been asked questions by an investigator and given answers, and then the statement prepared in narrative form. She gave evidence that the statement was correct, “absolutely”. She was then questioned about [16] of that statement, which read as follows:

“16 I was just sitting in the car and having a chat to Josh and I had not noticed any pedestrians walking down the footpath on Newman Street. When we got to the bottom of the street where it is blocked off, Joshua stopped the car. It is automatic and Josh selected reverse, and before reversing, I saw him check his mirrors and he looked over his left shoulder and checked his blind spot, and then he commenced to reverse slowly back. It was at a crawl because it is such a narrow street, so I guess it would have been about 5-10 kilometres an hour. I don’t think I looked back; I was probably just looking straight ahead or out of the side window.”

23. Mrs Liebmann agreed that when she spoke to the investigator she said that the defendant checked one of the blind spots only. It was put to her that she said nothing in [16] as to her looking anywhere “specifically”. She was asked:

“Q: Do you see it that at the foot of paragraph 16, ‘I don’t think I looked back’?

A: While we were reversing. I looked back before we were reversing, but not while we were reversing.

Q: You’re just making this up as you go along?

A: No I’m not. That’s my recollection of what happened.

Q: Why didn’t you tell the investigator anything about you checking anywhere?

A: Because I wasn’t asked the question.

Q: This checking of yours failed to enable you to see a pedestrian who was undoubtedly there. That’s true isn’t it?

A: I didn’t see a pedestrian, no.

Q: I want to put this to you, the clear impression that you knew you were conveying to the investigator was that you were not checking the surroundings of this vehicle at any stage, and it was for that reason that you didn’t see the pedestrian. That was the intention in your mind when you spoke to that investigator and when you signed this statement?

A: No, not at all. I was just saying what had happened, and as I said before, I wasn’t specifically asked a question about whether I looked in the mirrors or not.

Q: The time that elapsed between your husband putting the vehicle into reverse and you feeling an impact, would have been no more than a few seconds. Is that right?

A: Yes.

Q: I want to suggest to you that your husband did not drive straight to the end of the cul-de-sac; in fact, he commenced a u-turn at the end of the cul‑de‑sac, and then, part way through that turn, put the vehicle into reverse. What’s your answer to that proposition?

A: That’s completely incorrect. There’s no way you can do a u-turn in that space. He went directly forward and then stopped.”

24. There was no re-examination of Mrs Liebmann.

Evidence of Katrina Pfister

25. Ms Pfister gave evidence that she was walking in an easterly direction along Newman Street, behind the plaintiff. She was asked:

“Q: As you were walking down Newman Street, the lady is walking ahead of you, what happened as you were approaching Thomas Street to the left hand side?

A: I only really noticed or paid attention when I got to the laneway, so it’s the corner of Newman Street and whatever the laneway is, and you can drive down to Erskineville. I stopped at the corner and that’s when I saw the lady on the road, so, yeah.

Q: What did you actually observe?

A: So I stopped because there was a car reversing into the side street to turn around to go back out to the only way out of that street.

Q: Are you able to describe the car?

A: It was – I think it’s called a sedan where you don’t have, like a, boot thing, and I – my recollection is that it was, like, a grey colour.

Q: What speed was it travelling?

A: I couldn’t say exactly, but I’d say very slow.

Q: What did you observe about the lady who was walking in front of you at this time?

A: When – just that she was walking across the road at the same time as the car was reversing.

Q: How fast was the lady walking?

A: Not particularly fast. Normal – slightly slower than normal walking speed, or my speed.

Q: Then what happened?

A: I watched the car reverse back and the lady walking across the street, waiting – I watched the car reverse and the lady walking, and the car reverse and the lady walking, expecting—

Q: Just tell us what you observed?

A: Reversing until they collided.”

26. In cross-examination, Ms Pfister was asked:

“Q: Over what distance did you see the car travel before it collided into the pedestrian?

A: Probably the equivalent of – I’m not very good with distance. I have to give an example; (which was agreed at between 4-5 metres).

Q: The first time you noticed the car, you say, was when it was reversing?

A: Yes.

Q: So it was already doing that manoeuvre when you first saw it?

A: Yes.”

27. In [12] of her statement (Ex 8), Ms Pfister said that she was not taking any notice of where the plaintiff was looking. She was asked:

“Q: Do you think you had a good view of this accident at all?

A: Yes, it was directly in front of me.

Q: You think there were two impacts, don’t you?

A: Yeah, two bumps.

Q: I want to suggest to you that there was no such thing as two bumps, there was one. She was hit once and knocked to the ground. That’s not your memory at all is it?

A: No.”

Determination of liability

28. Pursuant to s 3B(2)(a) of the Civil Liability Act 2002 (NSW) (‘CLA’), Divisions 1-4 and 8 of Pt 1A (Negligence) apply to motor accidents. Therefore, in determining whether a driver of a motor vehicle breached his duty of care, and whether such breach was causative of the plaintiff’s injuries, the court must apply ss 5B, 5C and 5D of the CLA.

29. In Manley v Alexander (2005) 80 ALJR 413, the plurality of the High Court stated, in relation to a driver’s obligation to others using the roadway, in that case the respondent, who was intoxicated and lying on the roadway:

“11 Driving requires reasonable attention to all that is happening on and near the roadway but that present a source of danger. And much more often than not, that will require 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.

12 It may readily be accepted that the possibility that someone would be found lying on a roadway, like Middleton Beach Road at 4am, is properly to be described at remote. But 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.”

30. More recently, in Marien v Gardiner; Marien v H J Heinz Company Australia Limited [2013] NSWCA 396, another pedestrian case, Meagher JA (with whom Macfarlan and Emmett JJA agreed), stated:

“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, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.

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 Corporation [1946] 1KB 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.”

31. See also Warth v Lafsky [2014] NSWCA 94 at [55] and Nominal Defendant v Ross (No. 2) [2014] NSWCA 370 at [26], where these principles were restated.

32. Here, the defendant drove his vehicle to the end of Newman Street, a short distance beyond the intersection of Thomas Street. He then reversed his vehicle back along Newman Street for what I find to be a distance of four to five metres, before reversing into Thomas Street, so as to enable him to turn and exit Newman Street in the opposite direction. This was an area well known to him, close to Newtown railway station and to adjacent shopping areas. It was an area therefore where pedestrians could be expected.

33. The defendant was obliged to reverse his vehicle with care so as to avoid colliding with any pedestrian on the roadway. I accept the defendant’s evidence that he checked both his rear vision side mirrors and rear vision mirror and blind spot before he commenced to reverse his vehicle along Newman Street. I do not accept his evidence that he continued to check the path of his vehicle as he turned the vehicle so as to reverse into Thomas Street. Had he done so, he would have had clear vision of the plaintiff as she commenced to cross Thomas Street from the footpath of Newman Street, and heading in an easterly direction. In failing to see the plaintiff, and thereby colliding with her, the defendant clearly breached his duty of care. In applying s 5B of the CLA, the risk of harm was the risk that he may collide with a pedestrian. That risk was foreseeable and not insignificant, and a reasonable person in the defendant’s position would have taken the precaution of keeping a vigilant lookout on the path his vehicle was taking as it reversed into Thomas Street, so as to avoid collision with any pedestrian who may be on Thomas Street.

34. As to causation, pursuant to s 5D of the CLA, generally, motor vehicle accident cases, where negligence is established pursuant to ss 5B and 5C, there is little issue that factual causation follows pursuant to s 5B(1)(a), and once that is established, there is usually no issue that it is appropriate for the scope of the appellant’s liability to extend to the harm caused to the injured party, pursuant to 5D(1)(b) – see for example Nominal Defendant v Bacon [2014] NSWCA 275 at [15] and [16]. Factual causation, and scope of liability are clearly established here, and I find the defendant was liable for the plaintiff’s injuries.

Contributory negligence

35. Contributory negligence in relation to a motor accident is to be determined by application of both s 138 of the MACA and ss 5R and 5S of the CLA.

36. Section 138 of the MACA provides relevantly as follows:

“138 Contributory negligence – generally

(1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.

…

(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

(4) The court must state its reasons for determining the particular percentage.”

37. Division 8 of the CLA is headed “Contributory negligence”. It provides:

“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.

5S Contributory negligence can defeat claim

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

38. In Gordon v Truong [2014] NSWCA 97, Basten JA (Macfarlan JA agreeing), set out the principles applicable in determining contributory negligence by application of s 138 of the MACA and ss 5R and 5S of the CLA as follows:

“15 The principles applicable in determining whether a person has been negligent include the “General principles” set out in s 5B. Applying these principles as required by the statute is not without its difficulties. Where the plaintiff and defendant are both drivers in control of similar vehicles, questions of negligence and contributory negligence can readily be assessed according to the same broad standards. However, where the plaintiff is a pedestrian and the defendant a driver of a vehicle, the negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is, generally, to be assessed against a risk of harm to him – or herself. (It is possible that the carelessness of a pedestrian may create a risk of harm to other drivers, for example, if a car is forced to swerve to avoid a pedestrian, but that is not this case). The harm which the motor vehicle is likely cause to the pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind.

16 The purpose of s 5R may be gleaned from the recommendations in the Review of the Law of Negligence: Final Report (September 2002) which are, in this case, reflected in the statute. At par 8.7, the Report stated:

Should the law allow people to take less care for their own safety than it requires others to take for their safety? … Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?

17 The Report then stated at par 8.11:

Leading text book writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same. There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendant. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel’s view, this approach should not be supported.

18 The penultimate sentence was supported by reference to three judgments in the High Court and two in the South Australian Supreme Court. The comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760 at 762-763, are in point. Referring to the South Australian equivalent of the 1965 Act, s 9(1)(b), Murphy J stated:

The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision. … For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff’s damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision.”

39. The correct application of these principles was further explained in Davis v Swift [2014] NSWCA 458 by Meagher JA (with whom Leeming JA agreed) as follows:

“23 Section 138(1) of the MAC Act provides that the ‘common law and enacted law as to contributory negligence’ apply to an award of damages in respect of a motor accident, except as provided by that section. The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act 1965 (NSW (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility.

24 The starting point is s 9(1) which provides that if the claimant ‘suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person’ the damages recoverable in respect of the wrong ‘are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’. That description of contributory negligence reflects the common law position that the claimant’s lack of care must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21].

25 The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; 59 ALJR 492 at 494 as follows:

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

26 Section 138(3) is in different terms to s 9(1) and the other State provisions based on s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (UK). Whereas those provisions require the Court when assessing what is ‘just and equitable’ to have regard ‘to the claimant’s share in the responsibility for the damage’, s 138(3) provides:

(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

27 Section 74(3) of the Motor Accidents Act 1988 (NSW) is in the same terms. In Nicholson v Nicholson (1994) 35 NSWLR 308 at 333-334, Mahoney JA suggested a reason for the use of the broader language. The concept of contributory negligence involves the plaintiff’s lack of care contributing to the damage. However, the effect of s 74(2) which is in similar terms to s 138(2), is to require a finding of contributory negligence in cases where the act or omission may not have caused or contributed to the damage claimed. Relevantly in that case, s 74(2)(c) required a finding of contributory negligence ‘where the injured person … was … not wearing a seat belt as required’ by law. That being the position, the broader language may have been used to allow the Court in such cases to recognise that it would be unjust and inequitable, where there was no such causation or contribution, to reduce the damages otherwise recoverable. The remaining members of the Court, Kirby P with Meagher JA agreeing, also held that the finding of contributory negligence required by s 74(2)(c) did not constrain the inquiry as to what was ‘just and equitable’ or prevent consideration of all of the circumstances, including whether the absence of a seat belt contributed to the damage claimed.

28 In a case that does not involve a finding of contributory negligence made under s 138(2) or deemed fault on the part of the owner or driver, an assessment of what is ‘just and equitable in the circumstances of the case’ will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek. See the discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180; 43 MVR 315 at [54] – [63]. In Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [157] Hayne J considered s 74(3) to require the undertaking of such a comparison: cf Kirby J at [133]].

29 Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant’s contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant’s position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant’s damages by reason of contributory negligence.”

40. More recently, in Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (Barrett and Gleeson JJA agreeing) said as follows:

“161 The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case.

162 As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person’s own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a) – (d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 138(3) required the court to reduce the damages recoverable ‘by such percentage as the court thinks just and equitable in the circumstances of the case.’”

The parties’ submissions on contributory negligence

41. The plaintiff submitted, in the circumstances of this case, there could be no contributory negligence. It was submitted that the plaintiff, who was an honest and reliable witness, had observed the defendant to commence making a u‑turn in Newman Street. She then proceeded to cross Thomas Street, and it was necessary for her to look to her left up Thomas Street, where she knew that there was an underground car park. Within a very short period of time, a few seconds at most, the defendant reversed into her.

42. It was further submitted that the plaintiff’s evidence should be preferred over that of Ms Pfister, whose evidence was tainted by what was described as a “telling error”, namely that there were two impacts of the vehicle with the plaintiff, whereas the evidence only established that there was one.

43. Alternatively, Senior Counsel for the plaintiff submitted that by looking to her left, the plaintiff was momentarily inadvertent, in which circumstances there could be no contributory negligence – see for example, Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301. In considering the questions of liability and contributory negligence, it was submitted that the court would have regard to Road Rules 2014 (NSW), r. 296, which provides as follows:

“Driving a vehicle in reverse

(1) The driver of a vehicle must not reverse the vehicle unless the driver can do so safely.

(2) The driver of a vehicle must not reverse the vehicle further than is reasonable in the circumstances.”

44. The defendant submitted that the plaintiff was in breach of Road Rule 236, which provided relevantly as follows:

“236 Pedestrians not to cause a traffic hazard or obstruction

(1) A pedestrian must not cause a traffic hazard by moving into the path of a driver.

(2) A pedestrian must not unreasonably obstruct the path of any driver or another pedestrian.”

45. It was submitted by counsel for the defendant that the defendant reversed a distance of 10 metres from the end of the cul-de-sac in Newman Street and that it was “inconceivable that if the plaintiff had been keeping a proper lookout, she wouldn’t have seen him travelling at some point in reverse”. It was further submitted that the plaintiff’s obligation, knowing that there was a vehicle on her right, was also to keep an eye on that vehicle to see what it was about to do, knowing from previous experience, that vehicles do use Thomas Street to execute a three-point turn. It was submitted that the plaintiff was under an obligation before she put her foot on the road surface of Thomas Street, to ensure that the defendant was not reversing, when in fact, the defendant’s vehicle reversed slowly, relying on the evidence of Ms Pfister. It was contended that there was no explanation as to why the plaintiff did not see the defendant’s vehicle, and that “a driver of a vehicle in reverse does not have the same breadth of vision as a driver who is moving forward. It’s simply impossible.”

46. The defendant therefore submitted that the plaintiff was contributorily negligent to the extent of 65 per cent, relying on the Court of Appeal’s decision in T & X Company Pty Limited v Chivas [2014] NSWCA 235. In that case, the defendant taxi driver had a green light at a busy city intersection, and as he approached, two young men ran across the road in front of him, ignoring a red pedestrian light. The defendant did not slow down, and as he crossed the intersection, a third man ran onto the street and was fatally injured when hit by the taxi. The trial judge reduced the damages by 40 per cent, reflecting his assessment of contributory negligence, however, on appeal, that assessment was increased to 75 per cent. At [54], Basten JA (Barrett JA agreeing) stated:

“The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety. It appears to have been this factor, however, which led the trial judge to place a greater share of responsibility on the driver than the pedestrian.”

47. Counsel for the defendant submitted that the plaintiff was best equipped to see what was happening, because the defendant’s vehicle was in front of her and to her right, whereas the defendant was reversing his vehicle, naturally rotating his head. Thus, it was submitted, “He couldn’t see all around the vehicle at the same time in reverse.”

48. I do not accept the defendant’s submissions in respect of the limitations placed on the defendant as he was reversing his vehicle. Rather, reversing his vehicle in an area where prospectively there were likely to be pedestrians, the defendant was obliged to do so with safety, by keeping a proper lookout. As I have outlined above, he did not do so. The defendant failed to see both the plaintiff and the witness, Ms Pfister, who was standing on the footpath at the intersection of Newman and Thomas Streets. Even with the change of emphasis, as outlined by Basten J in T & X Company Pty Limited above, the defendant here was responsible for a greater share of responsibility for the accident than the plaintiff. I do not accept the defendant’s evidence that he had travelled 10 metres before the incident. Rather, that distance was approximately four to five metres and included a turn into Thomas Street. The plaintiff, who was not a small woman, should have been clearly visible to him if he was manoeuvring his vehicle with safety. Ms Pfister, as I have stated above, was also present on the footpath at the intersection, and was not seen by the defendant.

49. In Verryt v Schoupp [2015] NSWCA 128, Meagher JA (with whom Gleeson J and Sackville AJA agreed), referred to the relevance of the Australian Road Rules to the determination of any question of negligence and contributory negligence. At [4] his Honour stated:

“Neither party referred to or relied upon any Australian Road Rule as relevant to the determination of any question of negligence and contributory negligence. That is perhaps explicable on the basis that the determination of what reasonable care requires in any given case is not resolved by asking whether the relevant conduct was, or was not, prohibited by one of those rules. Nevertheless, the fact that particular conduct is prohibited may in some cases be a factor pointing to the conclusion that reasonable care was not taken: per Bell JA (as her Honour then was) with whom Mason P agreed, in Kollas v Scurrah [2008] NSWCA 17 at [76]. See also Sharpe v Gordon; QBE Workers Compensation NSW (Limited) v Gordon [2006] NSWCA 347 at [5] - [6]; and Penrith City Council v East Realisations Pty Limited (in liq) [2013] NSWCA 64 at [53] – [54].”

50. In assessing the plaintiff’s responsibility, if any, for the accident, pursuant to s 5R(2), the standard of care required of her was that of a reasonable person in her position. She did observe the defendant’s vehicle on the roadway as she walked in an easterly direction towards the intersection. I do not, however, accept her evidence that that vehicle commenced to make a u-turn. I accept the defendant and Mrs Liebmann’s evidence, together with that of Ms Pfister, that the vehicle drove to the end of the cul-de-sac in Newman Street and then commenced to reverse. Clearly, Newman Street is a narrow street, and there were vehicles parked on the northern side of it. I make no finding as to whether there was a vehicle parked on the southern side of Newman Street. Whilst looking to her left explained the plaintiff’s non-observance of the defendant’s vehicle as it reversed towards her, that does not amount to momentary inadvertence so as to excuse the plaintiff of all responsibility for the accident.

51. Applying ss 5B and 5C to these circumstances, the plaintiff, by continuing to cross Thomas Street, failed to take precautions against a risk of harm (i.e. injury by collision with a vehicle) that was foreseeable, and not insignificant. A reasonable person in her position would have continued to observe the defendant’s vehicle, and would not have proceeded to cross the road until it was safe for her to do so.

52. Assessed objectively, by failing to continue to observe the defendant’s vehicle to ensure that it was safe to cross Thomas Street, and by proceeding onto Thomas Street, assuming the vehicle was engaged in a u‑turn, meant that the plaintiff did breach her obligation to take care for her own safety in the circumstances. However, in assessing the culpability of both plaintiff and driver, the plaintiff’s culpability in failing to have regard to her own safety is much less than that of the defendant’s breach of his duty of care to other road users. I do not accept the defendant’s submission that the plaintiff’s contribution was 65%, relying on T and X Company Pty Ltd v Chivas, supra. Having regard to the facts established on the evidence here, and applying the principles set out above, I assess that it is just and equitable in the circumstances to reduce any judgment sum for the plaintiff’s contributory negligence by 20 per cent.

Obvious Risk

53. The defendant made no submissions whatsoever in respect of paragraph [9] of the defence as outlined in [4] above. Clearly, s 5I has no application to the present case and ought not to have been pleaded. As the defence, if any, was not pursued by the defendant, I make no finding in relation to it.

Damages

54. The plaintiff suffered an intra-articular fracture of the left distal radius and an undisplaced fracture of the right lateral tibial plateau in association with a partial tear of her anterior cruciate ligament. She also aggravated pre-existing degenerative changes in her right knee. She was taken by ambulance to Canterbury Hospital where she was x-rayed and then transferred to Concord Hospital where she underwent an open reduction and internal fixation of her left wrist fracture. She still has a plate and pin in her left wrist, and has experienced intermittent pins and needles and numbness affecting the fingers of her left hand, particularly at night, which has been diagnosed as a possible early left carpal tunnel syndrome.

55. There is little issue between the parties in terms of the plaintiff’s injuries and their sequelae. There is, however, a factual issue which is determined below.

56. The plaintiff relied on the handwritten schedule of damages which was marked for identification as MFI 1 as follows:

Past out of pocket expenses (Agreed)

$1,289.60

Future out of pocket expenses

$45,000.00

Past wage loss – 2 weeks @$850 per week

$1,700.00

Future wage loss

$150,000.00

Future loss of superannuation – 11% of Future wage loss

$16,500.00

Past gratuitous care

8 hrs per week @ $28 per hour for 3 years

$34,944.00

Future domestic assistance

If gratuitous – 8 x $28 x 796.6, or

If paid – 4 x $40 x 796.6

$178,438.00

$127,456.00

57. The defendant’s schedule of damages was marked for identification as MFI 2. It set out the following:

Past Treatment Expenses

Section 83s - $1,250.00

Medicare: $37.80

$1,287.80

Past Wage loss – 2 weeks at $850 pw

$1,700.00

Past Superannuation

$187.00

Future Treatment Expenses (Buffer)

$15,000.00

Future Diminution of Earning Capacity (Buffer)

$20,000.00

Past care

Nil

Future Care

Nil

Total

$38,174.80

The factual issues

58. In 2010, two years before the accident, the plaintiff had been diagnosed with arthritis in the left knee. She gave evidence that before the accident occurred, she had no right knee problems.

59. In cross-examination, the plaintiff gave the following evidence:

“Q: When you had had that left knee pain in the past, had that restricted you in relation to being able to squat and kneel?

A: Not really, no. It was one incident. I had an attack of acute pain that lasted a day. My regular GP was away. I went to a medical centre. They did an x-ray, said I have some arthritis in it, gave me some anti-inflammatories and that was it. That was the end of the issue. I didn’t have any more pain. I didn’t have any more investigation or treatment for it.

Q: You said in evidence this morning that you never had any pain in your right knee in the past?

A: No.

Q: Are you sure about that?

A: Yes.

Q: Did you tell one of the bystanders who came to render assistance, following the accident, that you were feeling pain in your right knee but that it was a pre-existing problem?

A: Not that I remember, no.

Q: You see, didn’t you tell Dr Wadell that over the previous few months, prior to your injury, you were starting to feel stiffness and discomfort in and around the knee which you had put down to arthritis? This was due to the fact that you had got known arthritis already in your left knee?

A: Not that I remember. I mean it was winter. I get stiff joints sometimes in winter. Maybe that’s what I meant, but I hadn’t had any treatment for it. I hadn’t had any investigations for it.”

60. On this issue, the defendant relied on the statement of Mrs Liebmann where, at [18], she stated:

“18 This woman that was on the ground at the back of the car was a large woman with brown hair and about 40 years of age. I also noticed that there were bags of shopping on the ground nearby. The woman was not crying and didn’t say much at first and I remember her saying ‘My knee hurts but I’ve had problems with it before.’”

61. In cross-examination, it was suggested to Mrs Liebmann that she did not say one word about “my knee hurts but I’ve had problems with it before”. Her reply was “She absolutely did”.

62. The defendant also relied on Ms Pfister’s evidence where she was asked:

“Q: Did she say something about any other injuries other than her wrist?

A: She’d made comment that her knee – something about her knee, but that that had been a prior injury or something along those lines.”

63. In cross-examination, she gave the following evidence:

“Q: The injured person said nothing to you about her knees at all?

A: Yes.

Q: You don’t know whether she mentioned the left knee or the right knee, or both, do you?

A: My recollection is only ever mention of a knee.

Q: That’s not right, because [paragraph 16 of her statement], you’ve agreed to the use of the word ‘knees’. That can’t be right, that you only used the word ‘knee’?

A: I used ‘knee’ or ‘knees’.”

64. The defendant also relied on the evidence of Constable Killen, who arrived on the scene when the ambulance officers were treating the plaintiff. She was asked what conversation she had with the plaintiff and gave this evidence:

“A: It was very brief because she was a little bit distressed, but I just introduced myself and just basically asked, you know, was she okay, et cetera, then I asked her, you know, ‘What sort of – what sort of injuries do you have?’ and she just stated, you know, that she was in a lot of pain with her wrist, and she mentioned her knee, but that that was already – she’d already had an issue with the knee, but that’s about all.”

65. The plaintiff tendered a report of Dr Shane Waddell, orthopaedic surgeon, dated 2 November 2012, which contained the following passage:

“She stated that over the last few months, prior to her injury, she was starting to feel stiffness and discomfort in and around the knee, which she put down to ‘arthritis’. This was due to the fact that she had got known arthritis already in her left knee.”

66. The plaintiff relied on a report of the New South Wales Ambulance Service (Ex G), which contained no reference to a prior knee injury.

67. I accept the evidence of Mrs Liebmann and Constable Killen that the plaintiff did refer to her right knee and stated that she had had an issue with it previously. That conforms with what she told Dr Wadell. However, the plaintiff suffered a frank injury to her knee, being a fracture of her lateral tibial plateau and a grade two sprain of her anterior cruciate ligament, together with a tear of the medial meniscus. It is that injury which has caused her present problems with her right knee, and the resolution of the factual issue above does not assist the defendant’s case by shifting the evidential onus on the defendant to establish that any prior problem with her right knee is contributing to her present problems, pursuant to Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. Indeed, the defendant produced no evidence of any treatment, prior to this incident, in respect of the plaintiff’s right knee.

68. The principal issues in respect of the assessment of damages are as follows:

1. Whether the plaintiff requires surgery for total knee replacement, and if so, when?

2. Whether the plaintiff is entitled to damages for future economic loss, having regard to the restrictions on her in the workplace.

3. Whether the plaintiff has satisfied the threshold for damages for past gratuitous care pursuant to s 141B of the MACA, and

4. Whether the plaintiff is entitled to damages for either future gratuitous care or future paid care. In respect of each of those heads of damages, the defendant had advocated that nil damages should be awarded.

Future treatment

69. Dr Waddell, in November 2012, recommended a course of physiotherapy to regain the plaintiff’s range of motion of her right knee, and stated there was a possibility that she may require an arthroscopy and partial medial meniscectomy. Dr Barrett opined in December 2014, that it was inevitable that the degenerative changes in her right knee will progress to the extent that she will eventually require a right total knee replacement. That would occur sometime in the next two to five years at an approximate cost of $25,000.00.

70. Dr Bodel, in a report dated 8 April 2013, opined:

“There is no absolute indication for surgery in the region of the right knee.”

71. Dr Peter Conrad, in a report dated 12 August 2014, was of the opinion that should her right knee deteriorate, she may well need a right knee replacement between five to seven years at a cost of $25,000.00. She may also require removal of the plate and screws in her left wrist at a cost of $6,000.00, but in the meantime, required physiotherapist and specialist supervision at a cost of $1,500.00 per annum.

71. The defendant relied upon a report of Dr Tanya Rogers (Ex 10.1), who stated:

“The prognosis of the right knee is a little guarded. She may continue to experience some aching from time to time. She may require arthroscopy in the future. It is also possible that she may eventually require a total knee replacement at some stage. However, a significant component of this risk is due to her high body mass index and pre-existing degenerative changes.”

73. Dr Rogers did not give reasons for this opinion, nor did she quantify what proportion of the “significant component of this risk” was due to the plaintiff’s “high body mass index” and what proportion was due to pre-existing degenerative changes in the knee joint. She did go on to state:

“She may require a total knee replacement in the longer term. The full cost of total knee replacement, including anaesthetic, surgeon, prosthesis and associated hospital costs, is approximately $20,000.00.”

74. On the basis of that evidence, counsel for the defendant submitted that a buffer of $15,000.00 was appropriate for future treatment expenses. That sum took into account the possibility of future surgery, but was discounted.

75. I accept that the cost of future surgery for a total knee replacement should be discounted, on the basis that the need for such surgery is not going to arise, on the balance of probabilities, for a period approximating five years. However, in the meantime, I accept that the plaintiff will require ongoing physiotherapy treatment, medication and supervision by her local medical officer and specialist from time to time. I do not find that she will require removal of the plate and pins in her left wrist. As the cost of future treatment cannot be assessed with precision, the appropriate assessment is a buffer of $30,000.00.

Future wage loss

76. The plaintiff returned to work after two weeks and remains in the same employment. However, in July 2014, the plaintiff’s employer, an accountant, sold his practice to a larger firm who were located in the same building.

77. The plaintiff does not have full movement of her left wrist and has approximately 50 per cent of her pre-accident strength in that joint. She cannot lift heavy things and if she is engaged in repetitive tasks the left wrist becomes painful. At work she is unable to lift boxes of documents or archives and stationery, and long periods of typing make her wrist very sore and stiff. To date at work, the heavier chores have been shared with a younger employee, however, that person was due to leave her place of employment and the future was uncertain as to whether the plaintiff would have to carry out those tasks herself.

78. The plaintiff has an excellent work history and returned to work two weeks following this accident, with her left arm in a sling and plaster, and using a walking stick. She has taken no time off other than for medical appointments and intends to continue to work until retirement age. The question then becomes whether her injuries are, or may be, productive of financial loss in the future – see Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

79. The plaintiff advocated a buffer of $150,000.00 for the prospect that the plaintiff would lose her employment and be unable to find other employment, together with loss of future superannuation entitlements calculated at 11 per cent.

80. The defendant allowed a buffer of $20,000.00, recognising that the plaintiff has some restrictions in her workplace and she intended to work to 67 years of age.

81. Before awarding damages for future economic loss, the court is required pursuant to s 126 of the MACA to set out the assumptions on which such an award is to be based, according to the claimant’s most likely future circumstances, but for the injury. The assumptions I make are as follows:

1. The plaintiff would have remained working as a receptionist/office worker to age 67.

2. The plaintiff would have had no restrictions placed on her work capacity up until that time.

3. The plaintiff will now require time off work for surgery to her right knee, including a period of convalescence and post-surgical treatment.

4. The plaintiff will also have continuing difficulty with lifting and going up and down stairs if required to do so at work.

5. If she was to lose her present employment, the plaintiff would have difficulty competing with able-bodied persons in the marketplace for such office work.

6. The plaintiff is now aged 58 and has a little less than 10 years left in the workforce.

82. Having regard to all of those matters, her claim for future economic loss is incapable of precise arithmetic calculation and therefore must be assessed by way of a lump sum buffer. I assess the plaintiff’s claim for diminished earning capacity into the future in the sum of $50,000.00, such sum to include any lost superannuation entitlements.

The plaintiff’s claim for past gratuitous domestic care

83. The defendant submitted that the plaintiff has not passed the threshold for an award for past domestic gratuitous assistance pursuant to s 141B of the MACA. The defendant submitted that the evidence upon which the plaintiff relied was inconsistent, and that the medical evidence only supported a finding that the plaintiff needed assistance with home maintenance and heavier duties. It was submitted by counsel for the defendant that the plaintiff had not established a need for such services so as to meet the threshold, and relying on Teuma v CP & P K Judd Pty Limited [2007] NSWCA 166, the “concept of need” in this context involved more than a mere desire for assistance. The question to be determined is, what amount of care was both reasonable and necessary.

84. The plaintiff submitted that eight hours of domestic assistance, since the time of the accident, had been established by the evidence. It was submitted that the plaintiff had established a need for assistance in washing of one hour per day, cooking of one hour per day, shopping of half hour per day, and gardening assistance of two hours per week. Whilst those estimates exceeded eight hours per week, that sum was a reasonable reflection on the plaintiff’s need for care, particularly when her husband was 11 years her senior, and not in good health. The plaintiff relied on the Court of Appeal’s decision in Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, where the court held that lay evidence established the need for such assistance and established that the threshold had been met, notwithstanding medical opinion to the contrary.

85. The plaintiff’s evidence was corroborated to a substantial extent by that of her husband. It was submitted by the defendant that even if there was some additional care provided by the husband, that that was more likely consistent with the plaintiff working full time, following her husband retiring from work, and not as a result of her injuries. In any event, it was submitted that the threshold had not been established. The home occupied by the plaintiff and her family was not a large house and it was extremely unlikely that six hours per week would be exceeded in cleaning it.

86. I find that the plaintiff has satisfied the threshold of six hours per week for a period of six months following the accident. For approximately half that time, the plaintiff was encumbered by her left arm being in a sling and requiring the use of a walking stick, which she used with her dominant right hand. Thereafter, she required assistance with all aspects of the cleaning, cooking, shopping and outdoor chores. The plaintiff and her husband were honest witnesses who gave their evidence in a frank and candid fashion. That there were some discrepancies was not surprising, nor does it undermine their evidence. I find that eight hours per week for past gratuitous care is established on the evidence and therefore I allow the plaintiff’s claim as calculated in the sum of $34,944.00.

87. For the future, the evidence establishes that the plaintiff will continue to receive gratuitous care from her husband for some time, but there will come a point where she will require paid assistance for heavier household chores and home maintenance. Doing the best I can, I award for future care on a gratuitous basis, for eight hours per week for a period of five years, and thereafter, reducing to paid care for heavier household chores at four hours per week. The calculations are as follows:

1. Eight hours per week x $28 per hour x 231.5 = $51,856.00.

2. Four hours per week x $40 per hour x 796.6 x 0.255 = $32,500.00.

3. Total amount = $84,356.00.

Assessment of Damages

88. I therefore the assess the plaintiff’s damages as follows:

Past treatment expenses (agreed)	$1,290.00
Future treatment expenses	$30,000.00
Past wage loss	$1,700.00
Future wage loss, including loss of superannuation benefits	$50,000.00
Past gratuitous care	$34,944.00
Future domestic gratuitous assistance	$51,856.00
Future paid care	$32,500.00
Total	$202,290.00

89. From that sum, 20 per cent must be deducted for the plaintiff’s contributory negligence. I therefore award the plaintiff the sum of $161,832.00.

Orders

90. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $161,832.00.

2. The defendant is to pay the plaintiff’s costs of the proceedings.

3. The exhibits are to be returned forthwith.

4. The parties have liberty to apply on 7 days notice, by way of Notice of Motion and affidavit in support, in respect of any special costs order.

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Decision last updated: 13 October 2015