Cook v Siperki - [2022] NSWDC 665

District Court

New South Wales

Medium Neutral Citation: Cook v Siperki [2022] NSWDC 665
Hearing dates: 31 October 2022-3 November 2022
Date of orders: 3 November 2022
Decision date: 03 November 2022
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
1. I give verdict and judgment for the plaintiff against the defendant for $1,086,414.48.
2. I order the defendant to pay the plaintiff’s costs on the ordinary basis to 14 September 2022, and thereafter on an indemnity basis.

Catchwords:
CIVIL – PERSONAL INJURY – MOTOR ACCIDENT – LIABILITY – QUANTUM – CONTRIBUTORY NEGLIGENCE – Defendant’s failure to keep a proper lookout when exiting driveway onto main road – Motorcyclist exceeding speed limit when travelling on main road – Inability of motorcyclist to take proper evasive action prior to collision – Major personal injury to the right leg.
CIVIL – PERSONAL INJURY – MOTOR ACCIDENT – QUANTUM – Economic loss – Non-economic loss – Inability of the Plaintiff to regain proper employment in fields with relevant experience – Inability of Plaintiff to find suitable work.

Legislation Cited:
Motor Accident Injuries Act 2017 (NSW)
Road Rules 2014 (NSW)

Cases Cited:
Fox v Wood (1981) 148 CLR 438
Nominal Defendant v Green [2017] NSWCA 280
Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Stuart v Walsh [2012] NSWCA 186; (2012) 61 MVR 271

Texts Cited:
Nil.

Category: Principal judgment
Parties: Plaintiff – Jason Matthew Cook
Defendant – Nicole Siperki
Representation: Counsel:
Plaintiff - Mr B. Dooley SC and Mr S. Hunt
Defendant – Mr J. Turnbull SC and Ms S. Warren
Solicitors:
Plaintiff – Don Cameron & Associates
Defendant – Holman Webb Lawyers

File Number(s): 2021/00364314
Publication restriction: Nil.

Judgment

Judgment

Background
Liability
Geography
Preceding the collision
The collision
The Defendant’s description of the collision
The Plaintiff’s description of the collision
Mr Bathis’ description of the collision
Consideration

Quantum
Plaintiff’s background
The Plaintiff’s speeding and truck driving
The Plaintiff’s predominant work
The Plaintiff’s medical history
Consideration

Order

Background

HIS HONOUR: The Plaintiff, Mr Jason Matthew Cook, brings an action for damages for personal injury which he sustained when the motorcycle he was riding collided with a motor vehicle being driven by the Defendant, Ms Nicole Stephanie Siperki. The collision occurred on Sunday 11 August 2019 on Dallinger Road, East Lavington.
The proceedings have been highly contentious. One result of the injuries sustained by the Plaintiff is that he suffered an amputation of his right leg above the knee. At the time of the collision, the Plaintiff was 45 years old. At that time, the Defendant was 27 years old. The Plaintiff submits that he is entitled to a finding of negligence on the part of the Defendant and concedes that there has been some contributory negligence, which his counsel submits the Court would find in the area of between 20% and 25%. The Defendant submits that there should be no finding of negligence against her, but if the Court does so find, the extent of the Plaintiff's contributory negligence should be some 80%.
There is also a major dispute as to the quantum of damages. As ultimately pressed, the total of the damages claimed by the Plaintiff was $1,536,100. The Defendant, however, submits that the Plaintiff's damages should be assessed as being at most $817,138 prior to any deduction for contributory negligence. I turn first to consider liability.

Liability

Geography

The alignment of Dallinger Road at the relevant place is essentially from south to north. Dallinger Road is an extension of Union Road, which runs from east to west from Lavington East towards Glenroy. At the eastern end of Union Road, the road makes a turn to the right and is then known as Dallinger Road. After the intersection of Dallinger Road and Vickers Road, the alignment of Dallinger Road which was originally from southwest to northeast changes to south-to-north.
Relevantly, on the eastern side of the relevant section of Dallinger Road there is a cul-de-sac known as Conrad Place. Further north there is a crossroads between Dallinger Road and Catherine Close, and that is of interest because at that intersection there is a Beaurepaires establishment at which some form of motor car exhibition was being held on Sunday 11 August 2019 as a fundraiser for some injured person.

Preceding the collision

The fundraiser had been attended earlier in the morning by the Plaintiff, and he was returning to that fundraiser at the time of the collision. The Defendant and her husband had attended the fundraiser but had returned to premises at 517 Dallinger Road, which are on the western side of Dallinger Road shortly north of the intersection of Conrad Place and Dallinger Road.

The collision

The collision occurred near the intersection of Dallinger Road and Conrad Place. In that area, Dallinger Road is approximately 13 metres wide. There is no marked centre line but there was a marked centre line south of the intersection. One can project that centre line theoretically northwards through the relevant section of Dallinger Road. When one does so, one ascertains that the northbound lane of Dallinger road is 7 metres wide and the southbound lane of Dallinger Road is 6 metres wide. Dallinger Road has a normal camber.
At the driveway to and from 517 Dallinger Road, both the northbound carriageway and the southbound carriageway are approximately 6.5 metres wide. However, here also there is no marked centre line.
The Plaintiff was travelling in the northbound lane of Dallinger Road heading towards Beaurepaires at the intersection of Dallinger Road and Catherine Close. The Defendant was driving a Volkswagen Amarok twin cab utility truck which was bright red in colour. It had only been purchased by the Defendant’s husband a number of months prior to the collision. It was relatively brand new.
The Plaintiff was driving a 2008 Harley-Davidson FL, which is known as a “Fat Boy” motorcycle. It is registered in New South Wales with registration number RZK29. The Amarok, being driven by the Defendant, was a V6 motorcar and bore Victorian registration DEWAR, a personalised number plate (the Defendant’s partner being known as Mr Aaron Dewar).
After attending the fundraising event at Beaurepaires, the Defendant had driven the Amarok back to 517 Dallinger Road. Her husband stayed at premises at 517 Dallinger Road and it was the Defendant’s intention to return to the highway and presumably to drive to their home, which is south of Wodonga in a village known as Baranduda. The collision occurred when the Defendant was making a right hand turn out of the driveway of 517 Dallinger Road onto the southbound lane of Dallinger Road in order to follow it south in order to go towards Victoria.

The Defendant’s description of the collision

The descriptions of the collision provided out of Court by each of the Plaintiff and the Defendant are wildly different. The first description is one provided by the Defendant to Senior Constable Glen Williamson of the Albury Police in an electronically recorded interview made on 27 August 2019. Senior Constable Williamson was assisted by Senior Constable Susan Hunter. The Plaintiff’s partner, Mr Aaron Dewar, was present as a support person. In the interview, the Defendant admitted that she was the driver of the red Amarok. She told the NSW Police that the family had had the car for four months.
Senior Constable Williamson drew to the attention of the Defendant that she had told him at the accident scene on the day of the accident that she was pulling out of a driveway across the road from Conrad Place in order to head towards the highway. The Defendant was then asked for how long she was waiting to pull out of that driveway. She said this:

“I did my head checks, so one, two, three, had a look. So I’d say probably about 12, 13 seconds.

Q 46: Did you look both ways?

A: Yes.

Q 47: When you looked around, were there any…obstructions to traffic that you…noticed?”

Eventually, the Defendant replied “No,” to that question. Her attention was then drawn to an advertising sign for a café at 517 Dallinger Road, and she said that it was not a distraction. She admitted, however, that the billboard or advertising sign for the café was on her side of the car, that is, on the driver’s side, so it was south of the driveway. The Senior Constable went on to ask the Defendant how far she could see in either direction. She said, “About 30, 20, 20 to 30 metres.” That answer is the answer to question 59. She went on to say that even with her head checks, she had not seen anything. She said that she was not required to wear glasses or corrective lenses in order to drive. She also denied there being any distraction such as sneezing or the sun getting in her eyes or anything of such a nature. The substance of question 71 and its answer are these:

“Q. When I spoke to you before, do you agree that you said that when you’ve driven onto Dallinger Road, you saw a motorcycle come and he was quite close to you. Is that right?

A. When he was at the road works sign, so the road work sign was there.”

The expert for the Plaintiff and the expert for the Defendant have agreed that this road work sign was 80 metres south of the area of impact. The concept that the Defendant could only see 20 or 30 metres away must be rejected. However, that only means that she is ‘spatially challenged’, meaning that she has difficulty in estimating distances. Again, in the interview, in answer to question 124, the Defendant volunteered that when she saw the motorcyclist, “He was at the roadworks sign.”
After giving her answer to question 71, the Defendant volunteered that the motorcyclist then “veered into my lane,” by which she meant the southbound lane. She then drew a diagram, which was initially MFI-10 and has now become part of Exhibit 10, the other part of Exhibit 10 being the transcript of the electronically recorded interview.
That diagram identifies the southbound side of the road as “me” and the northbound side of the carriageway as “his lane”. The diagram shows the Defendant's vehicle wholly within the southbound lane, with the sides of her vehicle perhaps parallel with the side of the road, and her direction as being heading due south. The direction she drew for the motorcyclist was from heading directly north to veering to the east; that is, over the centre line of the carriageway, which is purely notional at this place, onto the southbound carriageway, but then returning to the northbound carriageway, but then again turning eastwards - that is, into the southbound lane of the carriageway - striking the Defendant's vehicle.
In other words, the Defendant was maintaining that there was a double swerve to the east or onto the incorrect side of the carriageway, albeit that after the first veering towards the east, the Plaintiff regained the northbound lane, but then surprisingly turned directly into the side of the Amarok. One might be forgiven for thinking that if that be a correct description of what happened, the Plaintiff was a masochistic motorcyclist.
Question and answer 91 are these:

“Q. When you saw the motorcycle veer into your lane, what did you do?

A. I went into shock for a - a few seconds, and then I braked.”

Question and answer 92 are these:

“Q. Did you stop the car fully or did you slow down?

A. Ah slow down, like it was a slow down, like a slow, slow stop, ‘cause I'm thinking, ‘Oh, he’s going to - he has to be around me’, like, I - yeah - I was, like, panicking. And then not even two, three seconds after that, he banged into the side of me.”

Both in the interview and in giving oral evidence in Court, the Defendant frequently said that she “went into shock”. This became something of a mantra, and was used to, in essence, excuse her not remembering the answer to questions or not remembering what had actually happened.
I have a great reluctance in finding that “shock” causes memory loss. Most people these days have heard of Post-Traumatic Stress Disorder. This is a psychiatric phenomenon in which a severe stressor has marked its imprint on the mind of the person who experienced the trauma, and the trauma is often relived, and is the subject of dreams and intrusive thoughts and recollections. Trauma, as a general proposition, does not impair the memory. However, I do accept that it is likely that the Defendant did “panic” when she first saw the motorcyclist, because he was not that very far from her.
In answer to questions 103, 104, and 105, the Plaintiff maintained that her car was wholly in the southbound lane, pointing directly south down the lane - therefore, not at any particular angle to the centre line.
In answer to question 123, the Defendant said that the Plaintiff slowly veered into her lane, when, on her evidence, he was travelling at 90 kilometres per hour. She estimated that the motorcyclist was five car lengths from her when she first saw him in her lane. Five car lengths, according to Mr Dooley SC, for the Plaintiff, is approximately 22.5 metres, as the average length of a motor vehicle is 4.5 metres. However, the Defendant’s vehicle was 5.2 metres long, and five times that length is 26 metres. On another occasion, she was to say that she saw the motorcyclist when he was six car lengths away from her.
On 4 November 2018, the Defendant gave a statement to an investigator retained by the relevant insurer. That statement is Exhibit N. The statement contains these paragraphs:

“10) At the time of this incident I was alone in the vehicle. At this time, I was in the process of travelling in a southerly direction along Dallinger Raid [sic] after having turned right out of 517 Dallinger Road.

11) At this time, we had been attending a car show at Beaurepaires located at the intersection of Dallinger Road and Catherine Crescent and I was leaving these premises and heading towards Wodonga via the Hume Freeway.

12) I had been pared at a garage on the south western corner of Dallinger and Catherine and drove down through the factories to the exit at 517 Dallinger Road just north of the intersection with Conrad Place.

13) I turned right onto the driveway of 517 Dallinger Road and came to a stop at the end of the driveway and did my head test. I could two [sic] other vehicle travelling north. I waited for these vehicles to pass me travelling north. I then commenced turning right onto Dallinger Road. As I turned I did not see or hear anything. As I turned to the right and into the southbound lane I did slow down as I saw a motorcycle veering in the southbound lane from the south. I can only estimate that the motorcyclist was travelling at least at 90 kmh. I believe that the motorcycle was at least 5-6 car lengths from me when I first saw it. When I first saw the motorcycle, the rider was just over the centre white line of the road and into the southbound lane.

14) I slowed down believing that he was going to crash into me.

15) As soon as I saw him in my lane I went into shock and then the next thing I recall as [sic] him hitting me, and a pretty big bang and a pretty big jolt to my car.

16) I stopped still for a few seconds and then got out of the car and heard him screaming and then everyone came out of the shed where I had been and then some of the boys who were in the shed called for the ambulance.

17) I recall that the Motorcyclist was wearing Jeans, a black top and a biker hacked with Party Unlimited on the back of the jacket. He was wearing old type runners and not motorcycle boots, helmet with open face, no gloves and no long sleeves, just a flannelette shirt.

18) There was no one else at the scene but a short time after the impact a person by the name of Casey Amber came out of Conrad Place but apparently, he saw nothing.

19) The weather at the time was sunny and a nice day, it was not raining, visibility was clear and there was only minimal traffic. The incident occurred approximately 4 -5 meters north of the intersection with Conrad Place.

20) I had just come out of a driveway and there were no traffic control signals, no Give Way or Stops signs applicable.

21) As a result of the impact my vehicle sustained $40,000 worth of damage and destroyed the driver’s side of the vehicle and ripped the suspension out on the driver’s side of the vehicle. The vehicle has since been repaired and we have the vehicle in our possession. I submitted an Insurance Claim with Allianz Insurance on claim number 1180106812.”

One will note that in par 13 of Exhibit N, the Defendant said that when she saw the motorcyclist she was five to six car lengths away from him. Six car lengths at 4.5 metres is 27 metres; six car lengths at 5.2 metres is 31.2 metres away.

The Plaintiff’s description of the collision

The Plaintiff was first interviewed by Senior Constable Williamson at Albury Base Hospital on 15 September 2019. He was then an in-patient in that hospital. The interview was recorded in Senior Constable Williamson’s notebook. The relevant extract is Exhibit 9. In the answer to the question “What happened?”, the Plaintiff said this:

“A. I was heading down Dallinger road north bound towards a fundraiser. I know the road as I was heading down northbound, I saw roadworks and I was riding about 60 km/h. I don’t know why the roadworks sign said 60 ks. Its normally that speed. As I approached the new steel place on the left hand side next to the tea shop I noticed the red car came out on to the street from the drive way next to the shop. The red car came out half way onto the road then stopped. Noticing that she had stopped I thought that she had seen me and I was going to [manoeuvre] about a metre into the middle of the road so I could get around her. She then started to move out onto the road again to go South bound right into my path. At that stage I thought we were going to have a head on and I moved back into my lane to try and go around the back of her to miss her. As we were that close I thought I might have just clipped her but then she stopped in the middle of the road and I had no where else to go and I went right into the side of her with no opportunity to brake. I tried to avoid hitting by flipping my bike around but because of the angle the forks hit the side of the car and caused the side of the bike to hit the car and it trapped my leg. After that I’ve fallen to the ground. I heard her voice straight away asking what she can do to help.”

The Senior Constable then gave the Plaintiff a caution. He went on to say that he was wearing his helmet, that he consumed no drugs or alcohol on that day, that he had sustained injuries. Then, this question and answer was recorded:

“Q. How fast were you travelling at the time of the collision?

A. 60 km/[h]. I know that for a fact. I was even looking. I wasn’t going to risk it because of my priors. I even noticed the sign on the road saying 60 k’s. I know the road because I used to drive for Mainfreight. I was in third gear.”

A further question and answer recorded are these:

“Q. How far away were you when you first noticed the red car?

A. Just under 100 metres I reckon. Where the metal shop started, I thought I had plenty of time. She stopped so I thought I’d go around.”

Later, the Plaintiff said to the Senior Constable that, on his motorcycle, his headlights were on, and that “they are always on”. It is common ground that at the time of the collision it was a fine, sunny day. There was not much traffic. The road surface was dry and visibility was good.
A number of things should be noticed from what the Plaintiff told the Senior Constable. The statement “I don’t know why the roadworks sign said 60 ks. Its normally that speed” indicates to me that he thought the speed sign governing the roadworks was 60 kph when it is now common ground it was 40 kph.
The statement by the Plaintiff that the Amarok came out halfway onto the road and then stopped is consistent with a statement of a witness, Mr Brian Bathis, to which I shall refer soon.

The statement that “I thought that she had seen me and I was going to [manoeuvre] about a metre into the middle of the road so I could get around her” is clearly a statement by the Plaintiff that he was on the left-hand side of the road, travelling about six metres from the kerb. Then he went to the middle of the road, that is, towards the centre line, which puts him at about seven metres, where the notional centre line was.

Mr Bathis’ description of the collision

Mr Brian Bathis, a resident of Springdale Heights, provided a statement, which was recorded in official police notebook of Senior Constable Williamson. That statement contains these paragraphs:

“4. About 1:45pm on Sunday the 11^th of August 2019, I was travelling south along Dallinger Road, Lavington to go to a car show at Beaurepairs. I was going to the car show Cars and Coffee. At that time I was almost about to turn into the driveway at Beaurepairs when I noticed a red dual cab ute about 150-200 metres ahead of me start to pull out of a driveway from the Dallinger Road takeaway. I noticed this because the red ute stopped halfway out from the kerb.

5. The red ute stopped for a moment then continued onto Dallinger Road to turn South. The red ute got about three quarters across the road. I saw a motorcycle travelling North along Dallinger Road collide into the back door / rear wheel of the ute. The motorcycle went to the side and the rider who appeared to be in the middle of the ute and the bike went over the top and land on the road.

6. The red ute stopped at the collision and I drove my ute down to the accident and blocked off Dallinger Road, North of the collision to protect the rider. I got out of my ute and sawe a female driver come out of the driver’s door of the red ute and look at the scene. The female driver got back in the red ute and drove it off the road and back onto the sidewalk in front of the Dallinger takeaway.”

Clearly, Mr Bathis advised the Defendant to leave her vehicle where it had come to rest after the collision because that would be of assistance to the NSW Police in trying to ascertain what had happened. The Defendant disregarded that sound advice and deprived the NSW Police of an opportunity to try to work out what had happened.

Consideration

The Defendant can provide no adequate explanation for why she moved her vehicle, and the only rational explanation that comes to mind is that she did not want her car to stay in situ, because it might implicate her in liability for the collision. Of course, another theoretical reason for doing what she did was to remove her car from the roadway so that it was not subject to any further damage by any other motorists.
However, there was a severely injured man lying on the carriageway, and his overturned motorcycle, and a witness, such as Mr Bathis, and it is clear from the statement made by the Defendant’s partner that he went out to see what had happened after he had heard the noise of the collision. That evidence should be noted.
The relevant statement is summed up by Mr William Keramidas, the Defendant's expert, who prepared a report bearing the date 14 January 2022. A precis of his statement can be found on page 25 of that report, which is Exhibit 1. Paragraphs 2 and 3 of the precis of his report are these:

“2. He indicated that the Insured [defendant] had left the fundraiser event at around 1.40pm and he remained at the ‘garage’ at 517 Dallinger Road to assist with cleaning up.

3. He stated that the Insured had been gone for a few minutes when he heard the sound of a motorcycle coming down the street and it ‘sounded as though the bike was very loud and racing. I could clearly hear three gear changes and then I could hear that he was accelerating through the gear changes and there was no breaks of getting of [sic - or] getting of [sic - off] the throttle and then I heard a heavy bang. I then ran out of the front of the building…then saw the motorcyclist laying on the ground…I then saw the bike, and about 4 - 5 meters I saw Nicole's car, and she was sitting there in shock.’”

Again, what Mr Dewar heard must be contrasted with what the Defendant said she heard, which was nothing. Fortunately for me, the collision was caught on Closed Circuit Television (“CCTV”). Equally fortunately for me are the facts that the Plaintiff qualified an excellent expert, Dr George Rechnitzer, and the Defendant qualified a well-qualified expert, Mr William Keramidas. There is some disagreement between the two experts, but eventually they prepared a joint report. That joint report bears date 14 October 2022.
Dr Rechnitzer’s report is Exhibit A. Mr Keramidas’s report is Exhibit 1, and the joint report is Exhibit B. Neither expert needed to be called because, essentially, the experts are agreed on nearly everything in issue. I note with some bemusement that Dr Rechnitzer’s report appends his publications, which, leaving aside his PhD thesis report, amount in number to 146 publications. Mr Keramidas’s Curriculum Vitae is also appended to his report, and he lists merely three publications. Leaving aside his Master’s thesis publication, the other two publications in which he has participated are co-authored with Dr Rechnitzer and Mr J Leonard. Of the three, the lead author is Dr Rechnitzer, and the third author is Mr Keramidas. One might think that Mr Keramidas was very much in the same mould as Dr Rechnitzer, and hence, the two easily reached agreement.
In Conrad Place, East Lavington, is a works depot of Hanson Construction Materials. That works depot appears to be a site from which cement mixers take cement to building sites. There are CCTV cameras mounted 6 metres up on the outer frame of a silo tower. There are two such CCTV cameras but based on what is seen in the resultant video, the right hand camera appears to record the accident in question.
The site of the Hanson premises and the position of the CCTV cameras on the silo towers and their proximity to the collision location can be found in figure 26 of Dr Rechnitzer’s report. On p 41, Dr Rechnitzer states the following:

"The analysis of the provided CCTV was undertaken in Adobe Premiere Pro (industry standard video production/editing software). Premiere indicates that the video is 720x576 resolution at 25 frames per second (fps).

However, it was found that the time stamp visible in the video was not consistently accurate, in that the frame rate would vary by 1-2 frames per displayed second - such that some seconds would have 24 frames and others could have 27. Thus, for calculations the Premiere timer frame counts were used, to enable greater consistency. It is noted however that as no calibration of the CCTV was able to be undertaken, all time-based calculations are necessarily approximate only.

The video was enhanced for clarity using a number of effects including ‘unsharp mark’, dark areas brightened, and the key area showing the collision scaled up for maximum visibility. Despite this, as the action occurs in the far distance, the clarity and detail seen is limited, and the resultant accuracy of the analysis will be thus limited as a result.”

I quoted that because it clearly shows that there are limitations in the way in which the CCTV can be used, but it also shows that the Doctor is being forthright in disclosing the limitations rather than offering the CCTV footage as a complete explanation of what occurred. After what I have just quoted, the doctor sets out a table which he heads, “CCTV video collision event summary – Table 1”. It is this:

ID#

Timestamp [Prem time]

Figure No.

ΔT (seconds)

Description

1

13:44:30.64

[00:04:31:21]

Figure 29

0.0

(6.88)

The Amarok stops in the driveway of #517. A northbound vehicle passes it a couple of seconds later.

2

13:44:33.48

[00:04:34:20]

Figure 30

2.84

(4.04)

Amarok starts to exit the driveway, making a right turn (southbound) onto Dallinger Rd.

3

13:44:34.48

[00:04:35:17]

Figure 31

3.84

(3.04)

A moving object is just observable, presumed to be the motorcyclist, visible through a gap in the trees toward the top left of the CCTV frame. [As noted by Mr Keramidas, WKA report, p37]

4

13:44:37.00

[00:04:38:07]

Figure 32

6.36

(0.52)

Mr Cook’s head first becomes visible at end of building roofline of near northwest corner which was otherwise obscuring him.

5

13:44:37.48

[00:04:38:17]

Figure 33

6.76

(0.12)

Motorcycle in view, has reached VW frontal area. [24 frames in this second]

6

13:44:37.52

[00:04:38:20]

Figure 34

6.88

(0.0)

POI – This determined 2 frames (0.08s) prior to a discernible movement of the VW. It continues to move forward and rotates through a small clockwise arc (front rightwards) from the impact.

7

13:44:38.04

[00:04:39:07]

Figure 35

7.40

(+0.52)

Mr Cook/motorcycle emerge at the rear of Amarok.

8

13:44:38.56

[00:04:39:20]

Figure 36

7.92

(+1.04)

The Amarok comes to a complete stop post-impact. (25 frames / 1.0s post impact)

9

13:44:39.00

[00:04:40:08]

Figure 37

8.36

(+1.48)

Mr Cook/motorcycle come to complete stop on roadway (point of rest – POR). Bike slides to stop just prior to Mr Cook’s position, in front of driveway.

It should be noted that in the first line, the third column has the Greek capital letter “Delta” followed by the capital letter “T”. It is “ΔT”, not “AT”. One will note that the first event recorded is the stopping of the Amarok in the driveway of 517 Dallinger Road. It enables a northbound vehicle to pass in front of it, that is, from south to north. 2.84 seconds later, the Amarok starts to exit the driveway, making a right hand turn southbound onto Dallinger Road. When one looks at the CCTV footage, which is Exhibit 4, I would describe the turn as “leisurely”. There is a time between the passing of the car in front of the Amarok before the Amarok takes off and it does so at a very leisurely speed. The CCTV footage does not show the Amarok complying with the making of a right hand turn as prescribed by the Road Rules 2014 (relevantly, rule 31). They require the Amarok to pass over the northbound lane at 90 degrees to that lane and then when the vehicle is wholly within the southbound lane to turn to be parallel with the southbound lane.

The actual route taken by the Defendant appears to be a relatively shallow arc, which I would describe as eventually being an angle of 45 degrees. Thereafter, there are only 4 seconds and 4/100 of a second between the commencement of that turn and the collision. In the following pages of Dr Rechnitzer’s report, each of the events, numbered 1 to 9, is shown by a separate photograph. The still taken from the CCTV camera to show event 1 clearly shows the Defendant’s Amarok to be partially on the carriageway, not wholly on the driveway, as the Defendant maintained strenuously in her evidence. It has been submitted on the Defendant’s behalf that the Defendant’s vehicle was wholly in the southbound lane of Dallinger Road at the time of the collision and that she was indeed parallel to both the theoretical centre line of the road and the kerb of the road at the relevant time. I am unable to accept that. That is not my view of the CCTV footage nor is it consistent with my view of the still photograph, figure 34, with which Dr Rechnitzer supports event six of the actual collision.
According to Dr Rechnitzer, the point of impact was essentially on the centre line of the carriageway and the rear of the Amarok is clearly still on the westside of the carriageway. Ms Warren, for the Defendant, asked me to contrast that photograph with figure 2 on p 56 of Mr Keramidas’ report, which shows the Defendant’s Amarok wholly on the south side of the carriageway and the Defendant’s motorcycle wholly on the south side of the carriageway, but even that does not show the Defendant’s vehicle as being parallel with the centreline and the kerbing of Dallinger Road, but still at an angle to the centre line and the kerbing. That does show both vehicles to be wholly on the southbound lane. However, the experts could not reach agreement as to the point of impact. The Exhibit B, in section 1, records this:

“The experts agree that the ‘area of impact’ was near the notional centre line of Dallinger Road, about 2.5 to 3.5 metres north of the notional centreline of Conrad Place.

The experts agree the physical evidence is not definitive with respect to the ‘point of impact’. It could range from being marginally either side of the ‘notional centreline, which itself is only conceptual as the actual painted line markings terminate well south of the impact area. The impact ‘area’ was agreed by the experts as being consistent with GRA Fig 10 (page 24) which is reproduced below.”

The reference to ‘GR’ is a reference to Dr Rechnitzer’s report and a figure in that report on p 24. Again, that shows the area of impact as straddling the notional centre line. It may be that there is more of it on the southbound lane than on the northbound lane, but even allowing for that, it appears to me to be unlikely that the whole of the Defendant’s vehicle was on the southbound side of the carriageway at the point of impact.
One of the difficulties with the CCTV footage is that because it is exposed at 90 degrees to relevant events, it is impossible to discern movements by the motorcyclist either to his right or to his left. The CCTV footage strongly suggests that there was no actual stopping by the Defendant in her making her turn prior to the collision but it is possible that there was some slowing down by her.
There are a number of other things that I should say about the agreement of the experts besides agreeing to the area of impact as distinct from a point of impact.
As ought be clear from what I have said earlier, the speed limit on Dallinger Road was 60 kph. The experts agreed that there was an area of roadworks on Dallinger Road located south of the impact location, and in that area the speed limit was 40 kph. There is independent corroboration of that fact in Exhibit 2. Exhibit 2 is an application made to the Albury City Council for “traffic control”. The roadworks were to commence on 26 July 2019 and extend until 31 August 2019. The work was to be done from between 7:00am and 5.30pm on weekdays. It is clear from that document that the speed limit was to be 40 kph. That is on p 2 of the application. The application said that the roadworks were to commence 60 metres south of Conrad Place and they were to finish at 50 metres north of Vickers Road. The experts have agreed that the northernmost point of the roadwork was about 80 metres south of the impact area, based upon the photos taken by the NSW Police on the day of the accident.
The experts have also agreed that the Plaintiff was riding his motorcycle at a speed of 84 kph over the last 70 metres, or three seconds of the CCTV footage, prior to his impact with the Defendant’s vehicle. The Plaintiff is well aware that the experts reached that conclusion. Nevertheless, he maintained in his evidence that he believed that he was only travelling at 60 kph. That belief, if genuinely held, is clearly erroneous. Furthermore, I find it difficult to accept that an experienced motorcyclist would not know the difference between travelling at 60 kph and travelling at 84 kph. There can be no doubt that the Plaintiff was speeding, and the matter put forward by the Plaintiff when interviewed by the NSW Police as to why he was not speeding is merely self-serving, designed to induce the NSW Police’s belief that he was not speeding. The experts have also reached this conclusion:

“While the evidence of both the Plaintiff and the Defendant indicate a movement of the motorcycle to the right prior to impact, there is no basis on which the experts could arrive at any scientific/evidence method for estimating the path taken by the Plaintiff. Indeed, as the CCTV camera was at right angles to the Plaintiff’s path the footage does not assist. Therefore, while the general description of the movement to the right is accepted by the experts, there is no way of quantifying that movement. The experts can say that the time impact occurred the Plaintiff’s motion was generally parallel the orientation of the roadway.”

However, as it is the evidence of both the Plaintiff and the Defendant that the Plaintiff did move to his right, and he freely admitted that when interviewed by the NSW Police, I accept that he did move from somewhere on the northbound lane to the centre of the roadway. Of course, when the white lines ceased to exist he could judge the centre of the road, perhaps by the camber. The experts went on to agree that, assuming that the Defendant’s vehicle remained stationary, it would not matter which line the Plaintiff took, the collision would not have occurred. It does not need an expert to reach that conclusion. If the Defendant had remained stationary with her car partially on the road and partially still on the driveway, the Plaintiff could have passed without there being any collision whatever.
The experts also agree that, assuming that the Defendant entered the roadway and turned in the manner observed in the CCTV footage, the collision would likely have been avoided if the Plaintiff took a central path within the notional northbound lane. In other words, if he did not at all react, the collision may not have occurred. This is the highlight of the Defendant’s case on liability. There is, however, a problem with that observation. Most drivers, especially the more experienced, often take defensive manoeuvres. I have never driven a motorcycle in Australia, but I do drive motor vehicles, and if somebody comes out on my left from, say, a driveway, or a cross street, I often move towards the centre line - a defensive precaution - in case I have not been seen by the motorist on my left, and if I move more towards the centre of the road, he has a greater opportunity of seeing me and giving way to me.
I describe this defensive mechanism as giving the vehicle on the left a ‘wide berth’, and that is clearly what the Plaintiff did. In my view, he cannot be criticised for making that manoeuvre. The Plaintiff told me that he moved to the centre of the road but did not admit that he moved onto the incorrect side of the carriageway. I believe it unlikely that he did. I believe it more likely than not that he may have stayed in the middle of the road at the apex of the camber, where there was no painted centreline.
The experts went on to agree that the CCTV footage shows that the Defendant moved onto the roadway in what appears to be one continuous motion, with a relatively constant speed, at the final segment, prior to the impact. The CCTV footage did not appear to show her vehicle to have stopped or to have slowed prior to the collision.
The experts then pointed out that the reader of their joint report should note that there are limitations to the accuracy of the motion able to be established due to the distance of the camera from the vehicle. It is therefore not possible to say, definitively, whether the Defendant did brake or slow or did neither of those things prior to impact.
Since both the Plaintiff and the Defendant say that the Defendant slowed, I am prepared to accept that, however, slowing was counterintuitive. A person in the position of the Defendant, confronted by a vehicle, approaching at, basically, right angles, will be well advised to put her foot heavily on the accelerator pedal, and accelerate out of the path of the oncoming vehicle. She did not do that.
The experts also agree that the CCTV footage appears to confirm the Plaintiff's account, that he did not apply the brakes on his motorcycle after observing the Defendant's motor vehicle prior to the collision. The Plaintiff, in his oral evidence, maintained that he did not brake. In his view, that was, again, a manoeuvre to be avoided because it could have caused his bike, with him on top, to fall to the ground and to throw him under the wheels of the Defendant's vehicle. In other words, heavy braking could have caused an accident. Seeking to avoid the path of the Defendant's vehicle was the choice made by the Plaintiff.

It has been submitted, on behalf of the Plaintiff, that the choice, for example, to move towards the centre of the road was an exercise in defensive driving, but once he saw the vehicle travelling in a manoeuvre which would cause a collision, he decided to veer to the left in order to try to go behind the Amarok, but he was unsuccessful in that manoeuvre.
It has been submitted by the Plaintiff that that was a decision made in the ‘agony of the moment’. Counsel for the Plaintiff referred me to the decision of Stuart v Walsh [2012] NSWCA 186; (2012) 61 MVR 271, a decision of Tobias AJA, with whom Bathurst CJ and Basten JA concurred. In particular, I was referred to [61] to [65] of his Honour’s reasons:

It was in the context of Dr Walsh's over-reaction submission that reference should be made to the appellants' submissions based on their ‘agony of the moment’ contention. Reliance was placed on a passage from the judgment of Street CJ in Leishman v Thomas (1957) 75 WN(NSW) 173 at 175 where the Chief Justice considered the question whether a defendant may rely on the principle of the ‘agony of the moment’ in answer to a claim that he acted negligently towards another. His Honour said:
‘This so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so-called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.’
This passage from Leishman was quoted with approval by Stein JA, with whom Meagher and Beazley JJA agreed, in Abdallah v Newton (1998) 28 MVR 364 at 365-366. See also Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121 at [48], [49] per Ipp AJA with whom Hodgson JA and Rolf AJA agreed; Byrnes v Snare (1986) 4 MVR 97 at 99 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ agreeing.
Like the position in Abdallah, Mr Stuart found himself in a situation which was not of his making. He was driving his truck at 80 kph when, without warning, he suddenly observed between 65 and 90 metres in front of him a cyclist in the breakdown lane look right over his shoulder and then immediately turn 90 degrees onto the carriageway and, at least potentially, into the path of his vehicle. To adopt and adapt the observations of Street CJ in Leishman, Mr Stuart was forced to react to a sudden, unexpected and unheralded scenario when he observed a cyclist, suddenly and without warning, move into his path a relatively short distance in front of him. He may have assumed that the cyclist intended to proceed to the other side of the carriageway but he did not know at what speed. He did the obvious thing and immediately applied his brakes. It was never suggested to him that this was an inappropriate thing to do. Importantly, he responded to the potentially dangerous situation created by Dr Walsh as soon as it occurred: cf Vale v Eggins at [14] and [17].
In so reacting Mr Stuart did not have the opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had remained in Lane 1, rather than to have steered slightly to his right and at the same time floored his brakes so that his rear wheels locked and his vehicle went into a skid. He found himself faced with a situation which, in my opinion, required immediate action of some sort. If steering to the right was in hindsight the wrong thing to do then it was, in my view, an error of judgment made in the ‘agony of the moment’. To adopt and adapt what Ipp AJA said in Antypes, the fact is that Dr Walsh's conduct brought about a sudden emergency in circumstances where it would be unreasonable to criticise Mr Stuart for taking the avoidance action he did. Being confronted with a situation with which he was required to make an instant decision or one with which it was necessary for him to deal in a matter of a few seconds, it cannot be the case that he acted unreasonably in any way.
In summary, the issue is not whether there was an alternative course of action Mr Stuart could have taken which would have avoided the collision such as remaining in Lane 1 without the necessity of having to apply his brakes. The issue is whether in all the circumstances with which he was faced, his reaction to the sudden and unexpected movement of Dr Walsh onto the carriageway was unreasonable. In my opinion it was not. It accorded with the response of a reasonably prudent driver in the position Mr Stuart found himself.”
1. I accept that the decision to veer to the left, that is, to try to pass behind the Amarok, was a decision made by the Plaintiff in the ‘agony of the moment’. The time within which he could do so, make any decision, was extremely short, caused by the fact that the Defendant chose not to give way to the Plaintiff, as she was, by law, required to do.
2. In the joint expert report, the following is stated:

“The experts agree that, all else being equal with respect to the Defendant's motion, had the Plaintiff been travelling at 60 km/h rather than 84 km/h at the point along his journey when he actually saw the Defendant's vehicle leave the kerb, he would have had sufficient time to avoid impact.

WK is of the opinion that no breaking would be required in that scenario. GR is of the opinion that the scenario is somewhat hypothetical as it assumes that changing one variable (the speed of the motorcycle) will have no effect on any other responses by the drivers involved.”

The opinion of Mr Keramidas is, of course, another strong point in the Defendant’s argument. However, the fact is that the Plaintiff was not travelling at 60 kph. Of course, everyone is required to obey the law. However, courts are kept very, very busy by those who do not. Travelling above the speed limit is fairly common. Travelling at the speed the Plaintiff did on this road is not. However, one must make allowance for error. One cannot assume that everyone is going to obey every jot and tittle of the law. I agree with Dr Rechnitzer’s assessment that it is merely hypothetical, because one would not know what else might change, if one changed the speed of the Plaintiff’s motorcycle.
The experts went on to agree that all else being equal (with respect to the Defendant’s motion), there was sufficient time for the Plaintiff to brake (rather than swerve) so as to avoid impact. Again, this is an ‘agony of the moment’ situation. The Plaintiff could swerve, or he could brake, or he could attempt to do both. Attempting to do both could well have unsettled the motorcycle and caused an accident in any event. Swerving or braking each creates its own problems, especially if the braking causes the wheel to lock such that there can be no manoeuvring. Again, I accept that that is covered by the ‘agony of the moment’ position.
The experts have agreed that, assuming the Plaintiff was travelling at 84 kph, that, with ‘emergency’ braking, the collision likely could have been avoided if the Plaintiff had braked at a minimum distance of 40 metres to have avoided impact. It is clear from figure 47 of the report of Dr Rechnitzer that at four seconds from the point of impact, the Plaintiff was 90 metres from the point of impact. At three seconds prior to impact, the Plaintiff was 70 metres prior to the point of impact, and at two seconds, the Plaintiff was 47 metres away from the point of impact.
However, it is clear from the CCTV video collision event summary, which has been set out earlier in these reasons, that at 2.84 seconds prior to the collision, the Defendant started to exit the driveway making the right hand turn southbound onto Dallinger Road. At that time, the Plaintiff was somewhere between 47 metres and 70 metres from the accident scene - probably more in the vicinity of 60 metres. A difference, of course, between 60 metres and 40 metres when travelling at a speed of 84 kph is not particularly great.
Again, I believe that, in the ‘agony of the moment’, the Plaintiff made the decision to veer to his left when he saw the Plaintiff’s vehicle coming out and, of course, one must also allow for reaction time - generally 1.5 seconds - so that between when the Plaintiff first perceived the second movement of the Amarok from its position partially on the driveway and partially on the carriageway, to turning fully onto the carriageway, there would be 1.5 seconds before he could react.
Looking at figure 47 in Dr Rechnitzer’s report, which records the Plaintiff’s position on the roadway and how far he was from the point of impact, at two seconds, three seconds, and four seconds, and then allowing for reaction time, it appears to me to be highly unlikely that there was sufficient time to enable the Plaintiff to make the emergency brake postulated in per 14 of the joint expert’s report.
The final finding in the joint experts report was that they agreed that the Plaintiff should have been visible to the Defendant for at least 95 metres away, being the distance covered by the Plaintiff's motorcycle, from the point at which the Defendant moved from stationary to the point of collision. In other words, the Defendant should have been able to assess whether it was safe to enter the roadway.
At this point, it is necessary to observe that, on the first day of this hearing, the Court, sitting in Albury, took a view, in heavy rain, at the accident site, with the assistance of the parties and their Counsel and Solicitors. I estimated, despite the heavy rain, that there was good visibility for 300 metres to the south from where the Plaintiff was positioned partially on the driveway of 517 Dallinger Road and partially on the carriageway on the other side of the driveway.
In fact, according to the report of Dr Rechnitzer, the distance that could be seen was 400 metres. To suggest, as the Defendant would have me believe, that she could only observe the Plaintiff when he emerged from the roadwork, some 80 kilometres away, must be rejected as being fanciful.
Furthermore, if she did see him there, then it was reckless of her to make the turn, especially when she perceived that he was speeding. Her perception was that he was travelling at 90 kph. When she made that observation is not clear. If she saw him at 80 metres away, travelling at 90 kph, then one must ask oneself why she made the turn she did.
I have thought long and hard about this issue, and have reached the view that the only thing that explains what happened here is that the Defendant did not look. She'd seen a car coming from the south, heading north. She gave way to it. When that passed, she moved out, it would appear to me, completely unaware that the Plaintiff was driving his motorcycle northwards on Dallinger Road. That is the effective cause of the collision is that the Defendant did not observe a primary Road Rule.
Road Rule 74 is this:

“(1) A driver entering a road from a road related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line must give way to—

(a) any vehicle travelling on the road or turning into the road (except a vehicle turning right into the road from a road related area or adjacent land), and
(aa) a driver making a U-turn on the road, and
(b) any pedestrian on the road, and
(c) any vehicle or pedestrian on any road related area that the driver crosses to enter the road, and
(d) for a driver entering the road from a road related area—
(i) any pedestrian on the road related area, and
(ii) any other vehicle ahead of the driver’s vehicle or approaching from the left or right.”

The Defendant’s primary duty was to give way to any person lawfully using the road into which she intended to turn. She did not. It appears to me that she only saw the motorcycle for the first time when she was halfway through making her turn, and, at that moment she panicked, which led her to slow down, as she said. The Defendant said she slowed down. She certainly did not come to a stop, as she said, and as the experts joint report tells me. But equally, it is hard for the experts to discern, from the CCTV footage, whether she did slow because of relative angles.
In their submissions, Mr Dooley SC and Mr Hunt submitted that I should dismiss the Defendant’s evidence in its entirety. They pointed out that the Defendant’s evidence was entirely inconsistent with the mechanics of the accident as found by the experts and as shown on the CCTV footage. They submitted that it amounted to no more than a reconstruction of events in order to exculpate her gross failings. Those gross failings were, of course, a failure to keep any, or any proper, lookout, and a failure to give way to a vehicle to which she was required to give way. They submitted that the process began at the scene of the accident when she moved the vehicle from where it had ended up after the collision in order to avoid the NSW Police finding where the point of impact might be and as to how the accident occurred.
It was submitted that the Court would form the view that the Defendant’s sole purpose in removing the vehicle from the accident scene was to remove evidence of her alleged wrongdoing. They also pointed out, quite correctly, that the Defendant could offer no reasonable explanation for moving the vehicle when she had been asked to leave it in situ by the independent witness, Mr Bathis. I agree. I found the Defendant’s evidence exasperating. Every time she was required to answer a question that might cause her a problem, she said that she had been affected by shock. I do not give any weight whatever to anything that the Defendant has said.
Equally, I can give no weight to the Plaintiff for the evidence that he would have me believe about his speed. Clearly, he was speeding. He must have known it, and although he tried to lay some tracks to cover up that fact, the fact remains that he probably was unaware of the CCTV from the Hanson depot, and only by the use of that technology could his actual speed be determined. Though the Plaintiff had been, earlier in the day, at the function at Beaurepaires, he was returning there to help tidy up after the event. He may have thought that he was in a hurry. He may have given a little credence to the roadworks because, as most people would know, roadworks are hardly ever done on a weekend, especially in local government areas (not on major arterial roads).
I have no hesitation in finding that the Defendant was negligent. I have no hesitation in finding that the Plaintiff was speeding. Clearly, this is a case in which the Plaintiff’s speed contributed to the accident. I am therefore required to apportion liability. The Defendant’s submissions refer me to the well-known line of cases, beginning with Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34, Nominal Defendant v Green [2017] NSWCA 280, and in the many cases where those authorities have been repeated. Again, the case law makes clear that there is the concept of “causal potency”, which is referred to in [77] of the submission on behalf of the Defendant by Ms Warren.
In my view, the most potent cause of this motor accident was the failure of the Defendant to keep any proper lookout, to see the Plaintiff approaching on his motorcycle, burning its headlight, making the noise referred to by her husband in his statement, and turning, essentially, across the path that it must take. The Road Rule required her to give way to anyone using the carriageway. She did not. I accept that the decision of the Plaintiff to move one metre from the northbound lane to the centre of the road and to continue along the centre of the road was done for a legitimate defensive reason initially. There is no suggestion that there was any traffic in the southbound lane prior to or after the Defendant turned into the southbound lane.
Then, when confronted by the Defendant’s unexpected move from halfway between the carriageway and the roadway, the Plaintiff had to make a decision either to brake, to change his path, or to swerve in the opposite direction, which is what he did. Unfortunately, his swerve was insufficient.
Equally, if he had not been travelling at such a speed, his options may have been greater. The ability to brake may have been greater, with less impact. There would have been more time for him to effect a braking manoeuvre or perhaps a more successful avoidance mechanism by manoeuvring behind the Defendant’s vehicle.
Doing the best that I can, I accept that 25% of the liability for this collision should be apportioned to the Plaintiff, in other words, his being guilty of contributory negligence of 25%.

Quantum

Plaintiff’s background

I turn then to the question of quantum. As I have earlier said, the Plaintiff was 45 years old at the time of this accident. He is now 48 years old. He grew up in Yarrawonga. He attended state schools in Yarrawonga. In Year 11 he was asked to leave by his teachers because they thought he was wasting their time. He admitted that he was not a very good scholar. The last book he read was in Year 10. He does not read newspapers. His literacy is limited. He has difficulty using punctuation. From what the Plaintiff told me about himself, and from his work history, it is highly unlikely that the Plaintiff could perform any “desk job”, any job requiring clerical skills.
The rehabilitation provider appointed by the insurer offered the Plaintiff three TAFE courses. He could only do one of them, that was in bookkeeping and accountancy, however he could not complete that because he found it too intellectually challenging.
The Plaintiff, after leaving school, went and started working at the Mulwala RSL club. Mulwala is on the NSW side of the Murray River, opposite Yarrawonga. The Plaintiff obtained an apprenticeship at that RSL club as a chef and completed that apprenticeship.
An attempt was made by Mr Mark Ravagnani, a consultant psychologist, to establish what the Plaintiff’s work history was. That work history is set out over three pages of Mr Ravagnani’s report of 9 May 2022, which is Exhibit F. The work history recorded by Mr Ravagnani is this:

“He attended school in Yarrawonga until Year 11 at the age of 16 years. He stated that he did not enjoy school and was not a good student. He was asked to leave by his teachers as he was ‘wasting his time’. Following this, he was enrolled in a six-month government-sponsored program in hospitality which also involved work experience at the local RSL club. At the conclusion of his course, he was offered an apprenticeship as a chef which he completed four years later in 1994. His work history from this point is as follows:

1995-1998 UNCLE TOBY’S LTD – WAHGUNYAH

Warehouse Store man / Forklift operation

CONSOLIDATED MEAT GROUP – INNISFAIL QLD

Yard duties/Maintenance / Boning room

1998-2002 JOHNO’S BLUES BAR – CAIRNS QLD

Operations /Security Manager

2002-2003 DRAKE EMPLOYMENT AGENCY

Store man/ Forklift Operator

BORDER EXPRESS TRANSPORT – ALBURY

Local Driver/Yardman

2006-2007 W.B. HUNTER – YARRAWONGA

Heavy Rigid Delivery Driver

2007-2008 YARRAWONGA EARTHMOVING & GARDEN SUPPLY

Yard duties, Mobile Plant Operator

2008-2010 WORKFORCE ON TAP – ALBURY

Heavy Combination Interstate Driver & Yard Duties

BF TRANSPORT SERVICES – ALBURY

HR & HC Truck Operations

C & M LINEN SERVICES – ALBURY

HR Truck Operations, Loading & unloading, local & Canberra

2008-2011 ARCAV AIR PTY LTD – T/A Aero refuellers – ALBURY

Fire Season Contract – (90 days) yearly. Hot Refuelling Jet A1 Fuel for aerial fire attacks Australia wide

2012-2013 METROPOLITAN EXPRESS – ALBURY

Interstate Heavy Combination Truck Operations

2013-2017 OWNER/OPERATOR JMC TRANSPORT

Contract to Mainfreight, Albury

2017- 2019 METROPOLITAN EXPRESS – ALBURY

Interstate Heavy Combination Truck Operations

Mr Cook also possesses an extensive prior background in hospitality

1990-1994 MULWALA SERVICES CLUB – MULWALA, NSW

Apprentice chef

2003-2004 WHO’S CATERING – ALBURY, NSW

Casual Chef

ROYAL HOTEL – WAHGUNYAH VIC

Barman/Chef

STAR HOTEL – RUTHERGLEN VIC

Chef/ Barman/Security

AUSTRALIAN HOTEL – COROWA NSW

Chef/ Barman/Security

2004-2005 GEROGERY HOTEL – GEROGERY, NSW

Manager/Head Chef

2005-2006 BUNDALONG TAVERN – BUNDALONG, VIC

Head Chef

2006-2007 MULWALA WATER SKI CLUB – MULWALA NSW

Bar Operations / Courtesy Bus Driver”.

In cross-examination it became clear that the order of some of the employments is incorrect, and it became clear that many of the descriptions of the Plaintiff’s work may have been slightly exaggerated. For example, in the work he did for Consolidated Meat Group in Innisfail, Queensland, he was essentially a cleaner doing yard duties, and working in the boning room. For Jonno’s Blues Bar in Cairns, he appears to have been originally, to put it bluntly, a bouncer, and then was put in charge of security.
His initial employment with Drake Employment Agency was at the Uncle Ben’s Dog Factory, and then as a yardman with Border Express Transport in Albury. The Plaintiff’s period of self-employment as a truck driver between 2013 and 2017 was unsuccessful, and the Plaintiff was bankrupted.

The Plaintiff’s speeding and truck driving

He was working for Metropolitan Express at Albury as a truck driver, but his services were terminated after he committed a serious driving offence. The serious driving offence is the subject of Exhibits 8 and 9. The Plaintiff had commenced working with Metropolitan Express Transport Pty Ltd of East Albury on 8 February 2018. He was giving a first and final written warning notice on 26 March 2019 for an offence committed on the Barton Highway between Curran Drive and Gold Creek Road on 6 March 2019 when he exceeded the speed limit by more than 10 kph. He was detected driving at 90 kph in an 80 kph zone.
On 28 June 2019, the Plaintiff was charged with exceeding the speed limit by more than 30 kph, but not more than 45 kph whilst driving a heavy vehicle. He was found to be speeding through the rural town of Jindera, some 16 kilometres north of Albury. A social media post was made of the event is this:

“At 7.10am, on Friday the 28th of June 2019, police positioned behind a semi-trailer combination upon Urana Street, Jindera… observed the heavy vehicle into a 50 kph residential area at excessive speed. The heavy vehicles speed was checked at 96 kph as it drove through the country town. The driver was stopped, and he informed police that he slowed down upon seeing the police vehicle, and was aware of the speed limit as he had family that lived in the town. Issued penalty notice for…”

The Plaintiff did not immediately inform his employer of that offence. He only informed his employer of the offence when he returned to the yard at noon on that day. According to Exhibit 8, management of his employer only became aware of the incident once it had been observed on social media. That was noticed five minutes prior to the Plaintiff’s arriving back at the Albury depot, where he orally reported the matter at 12 noon. When one reads Exhibit 8, one wonders whether the company was more concerned about the offence or the late reporting of it by the Plaintiff or the fact that it made social media.
The report itself indicates that the Plaintiff was to be counselled at a toolbox meeting on 5 July 2019. However, on 12 July 2019, the company issued an employment separation certificate stating that the Plaintiff’s employment had ceased but did not say the date of cessation. It did say, however, that the Plaintiff went on annual leave on 7 July 2019 for two days, which would take one up to 9 July 2019.
As a result of that offence, the Plaintiff's employment as a truck driver ceased, and he knew that he would have his licence suspended. In fact, the suspension came into effect on 29 October 2019 for a period of six months until 28 May 2020. That is proven by Exhibit 5. The circumstances of his termination from Metropolitan Express Transport Services as a truck driver is relevant to what the Plaintiff would have been earning but for the injury now in question. The Plaintiff then found work with the Commercial Club here in Albury, and worked there for five days, commencing on 6 August 2019. He appears to have worked on the five days from 6 August 2019 until 10 August 2019. Sunday 11 August 2019 was, of course, the date of the motor vehicle accident.

The Plaintiff’s predominant work

Essentially, the Plaintiff’s work history has been of working either as a chef or in unskilled work, but more recently as a truck driver. The Plaintiff’s work was working as a truck driver. The fact that he went into self-employment which unfortunately ended in bankruptcy is proof positive that his preferred work is as a truck driver.

The Plaintiff’s medical history

Not only is the Plaintiff’s past work history relevant to the assessment of damages, but so is his medical history. At the commencement of the hearing, the Plaintiff handed up a chronology, which is MFI 12. I trust that I will be forgiven for referring to it to sum up some of the Plaintiff’s background, but it is the easiest way of my doing so. The Plaintiff has, for many years, had a heart condition. Exhibit L is a report from Associate Professor Leeanne Grigg, a consultant cardiologist and clinical associate professor working at the Adult Congenital Cardiac Service at The Royal Melbourne Hospital. The second paragraph of that report is this:

“Mr Cook has been a patient at the Adult Congenital Cardiac Clinic since transfer from the Royal Children’s Hospital in 1994. His last appointment was on the 29^th June 2021. His congenital heart condition is pulmonary atresia with intact ventricular septum/ atrial septal defect. Complications of this congenital heart condition has caused tricuspid valve incompetence and atrial arrhythmias.”

The next paragraph outlines two serious cardiac operations that have been performed on the Plaintiff. The report then says this:

“At his last visit (Telehealth on 29/6/2021), Jason had no cardiac symptoms. However at this visit he was a current in-patient at Macquarie University Hospital for infective complications of his right leg surgery following his motor vehicle accident.”

It is convenient at this time to point out what Associate Professor Grigg says about the Plaintiff’s work history, as far as his cardiac condition is concerned:

“From a cardiac point of view, with continued appropriate treatment, he would be at increased risk of not being able to work to the end of a normal working life (as quoted in your letter 67-70 years) but may have been able to accomplish this. It is noted that he also had additional medical problems of obesity and sleep apnoea.

From a cardiac point of view, Mr Cook is currently able to work. His current capacity for work is limited by his leg injuries from the motor vehicle accident.”

On 5 May 2010, the Plaintiff was involved in a motor vehicle accident. He was driving in the course of his work. There was a tyre blowout, and the Plaintiff was thrown out of the truck through the windscreen, when it hit a tree after leaving the road as a result of the blowout. The Plaintiff was treated initially at Yass District Hospital. He sustained injuries to both his knees and to his left ankle.
The fact that this accident was caused by a tyre blowout can be found in Exhibit 10 at par 27. The Plaintiff made a claim for worker’s compensation as a result of that accident.
On 19 September 2011, the Plaintiff injured his left index and middle fingers, as well as the great toe of his left leg, after cutting them with a circular saw. He was using the circular saw on his speed boat at home, and there was an accident resulting in the severance of some joints of his fingers and dropping the circular saw onto his foot. As a result of this, the Plaintiff was admitted to the Albury Base Hospital, and underwent appropriate repairs of the wounds.
The chronology tells me that, on 24 July 2017, the Plaintiff was injured in a truck rollover, but I know nothing more about that. On 25 November 2017, the Plaintiff was injured in a motorcycle accident. On that occasion, he swerved to miss a number of kangaroos. Fortunately for the wildlife, he missed them, but unfortunately for him, he hit the gutter, travelling at the speed of 62 to 70 kph.
He suffered fractures of the left sixth and eighth ribs, a right pulmonary contusion, a right basal pneumothorax and a laceration to each of his legs. He was admitted to the Albury Base Hospital and treated there. Apparently, he made a third-party claim about that, but whether he was successful or not in that endeavour, I do not know. It seems to me unlikely.
On 24 July 2018, while he was working for Metropolitan Express Transport as a truck driver, the Plaintiff was admitted to Wangaratta Hospital. The Plaintiff gave a history of driving his truck at the speed of between 80 and 90 kph when he suffered a microsleep, lost control, and rolled the vehicle. There was no loss of consciousness. When examined at the hospital, no abnormality was detected, however, there were complaints of pain in the left hip and the left side of the chest.
On 24 August 2018, the Plaintiff underwent diagnostic sleep study, and as a result of that, was given a Continuous Positive Airway Pressure (CPAP) machine. The Plaintiff still uses that, and that controls his sleep apnoea. His use of the sleep apnoea machine does not interfere with his ability to drive heavy vehicles.
On 13 April 2019, the Plaintiff consulted Dr Bailey, a general practitioner. He was suffering from nonspecific back pain. The Plaintiff gave the doctor a history of having injured his back after falling over a few months earlier. He recovered to some extent, without any specific intervention.
On driving his truck home on 12 April 2019, he was thrown into the side of the truck on a rough road, and again experienced some low back pain. He was also suffering from mid-thoracic spinal pain which was interfering with his sleep. He was also investigated at that stage for cervical pain.
Computerised Tomography (CT) scans of the cervical lumbar spines were performed on 15 April 2019. As far as the neck was concerned, there was a gentle scoliosis convex to the right in the mid to upper thoracic region, but no abnormality. In the lumbar spine, there was a minor scoliosis convex to the left, often found when there is a higher scoliosis to the right. And there was a diffuse disc bulging at L3-4, but no focal prolapse. One would expect that a man with the Plaintiff's age of 45 in 2019 might have some degenerative change in the lower back.
After the Plaintiff was dismissed by Metropolitan Express Transport Services, he consulted his general practitioner Dr Bailey on 26 July 2019. Inter alia, the doctor’s notes record this:

"Unfortunately Jason has lost his job due to speeding and a crane accident

He is looking for factory type work

Jason understandably very emotional as he is close to bankruptcy

I offered Jason a Centrelink Certificate which he accepted”

The reference to a crane accident is a reference to a problem with the crane on the back of his truck, and a slight accident that occurred with the use of it.
The certificate issued by Dr Bailey is Exhibit 11. The diagnosis provided is “severe right heart failure.” The symptoms of it were exertional Dyspnoea, and severe peripheral Oedema. Dr Bailey certified the Plaintiff as unfit to work from 26 July 2019 to 26 October 2019, a period of some three months. It would appear that the purpose of the certificate was to obtain sickness benefits. This certificate is a major plank in the Defendant’s case on quantum.
It is clear from Exhibit 15 that the Plaintiff did obtain some payment from social security - a gross payment of $116 for the period from 23 July 2019 to 11 August 2019. That was probably but a few days of benefit.
That the Plaintiff was not prepared to live on sickness benefits is proven by what subsequently occurred. He returned to see Dr Bailey on 31 July 2019 and the doctor’s notes commence thus:

“Has two upcoming job interviews as a chef

Feels somewhat better than last week

Mood described as average but easily teary

Has not stopped [riding] Harley or seeing friends”

The doctor applied a DASS test, which showed the Plaintiff had mild depression but no anxiety or stress. The two jobs to which the Plaintiff was applying were for work as a chef at the Commercial Club in Albury, and work as a chef at the Booma Hotel. Now, of course, the Plaintiff obtained work at the Commercial Club and last worked there on the day before this motorcycle accident.
After the motorcycle accident, the Plaintiff was taken by ambulance to the Albury Base Hospital and was transferred thence to the Alfred Hospital in Melbourne. His injuries are summed up in Exhibit P, an excerpt of records from the Alfred Hospital as being these:

“[Right] Compound comminuted femoral fracture

[Right] Tibial degloving injury

[Right] Acetabular fracture

# [Left] L3-4 rib fractures with small PNTx

# T6-8 Spinous process fractures”.

The Plaintiff's medical course, since then, has been lengthy as well as torturous. The Plaintiff has been sent by his solicitors to see Dr James Rowe, an occupational physician, Dr Leon Turnbull, a psychiatrist, Dr Craig Mills, an orthopaedic surgeon, and Mr Mark Ravagnani, to whom I have referred earlier.
The Defendant has qualified Dr Seamus Dalton, a consultant physician in rehabilitation at the North Sydney Sports Medicine clinic. The most succinct summary of the Plaintiff's care is provided by Dr James Rowe in his report of 31 March 2022, which is Exhibit C. It is this:

“Treatment and Investigations

On 11^th of August 2019, Mr Cook was conveyed to a local hospital via ambulance. He was then transported to The Alfred Hospital in Melbourne.

He was treated for an open comminuted intraarticular fracture of the right distal femur.

On the 17^th of August 2019, Mr Cook underwent surgery to repair the right femoral fracture with an ORIF performed by Mr Hughes, orthopaedic surgeon.

The CT scan of his right lower limb dated the 14^th November 2109 [sic] demonstrated a surgical screw located at anterior lateral femoral condyle sitting proud by 7 mm with an incidental finding of large dorsal fracture fragment of lateral femoral condyle not internally fixed and associated with an 8 mm articular step.

On the 9^th of December 2019, Mr Cook underwent surgery to remove the surgical screw form [sic] the right knee. During the surgery he was found to have pus around his fracture site and was treated with antibiotics.

Mr Cook was then referred for physiotherapy.

On the 11^th of October 2020, he was referred to Professor Al Muderis, orthopaedic surgeon, for a second opinion of his persistently non-united, intra-articular comminuted fracture right distal femur.

On the 15^th of October 2020, Mr Cook was reviewed in the Complex Limb Reconstruction Clinic at Macquarie University Hospital by Professor Al Muderis, Dr O’Carrigan, Dr Alttahir and Dr Stoita, orthopaedic surgeons. It was recommended that he have a staged knee replacement with the first stage consisting of removal of implants and excision of the infected distal femur and cement spacer. Once his infection was controlled, he would require a distal femoral replacement.

The x-rays and a CT angiogram performed on the 15^th of October 2020, demonstrate non-union of a right distal femoral fracture with good vascular supply to the right lower limb.

On the 22^nd of October 2020, Mr Cook was reviewed by Mr Basten, psychologist on referral from Professor Al Muderis. Mr Basten noted that Mr Cook appeared to have a depressed mood. Mr Basten noted that Mr Cook difficulties in reducing his weight further than he already has, are probably related to his mood as much as behavioural self-regulation and decision-making. Mr Basten recommend that he have a few consultations with a clinical psychologist to address his coping and, in particular, to focus on behavioural activation to assist with depressed mood.

18^th of November 2020, Mr Cook underwent surgery for the removal of plate and screws in the right distal femur, excision of infected distal femur, first stage right total knee replacement using cement space performed by Prof Al Muderis.

On the 3^rd of February 2021, Mr Cook underwent surgery for the removal of plate and screws in the right distal femur, excision of infected distal femur, first stage right total knee replacement using cement space performed by Prof Al Muderis.

On the 5^th of February 2021, Mr Cook underwent surgery for the application of a hinged external fixator frame to right leg performed by Professor Al Muderis,, and Dr Tetsworth, orthopaedic surgeons.

On the 17^th of March 2021, Mr Cook underwent a right thigh and leg external fixation removal distal performed by Professor Al Muderis and Dr Stoita.

On the 7^th of April 2021, Mr Cook underwent the second stage of the distal femur replacement. He had an extended hospitality stay due to persistent wound ooze.

Mr Cook was readmitted on the 4^th of May 2021 for a discharging sinus from the distal end of the wound. He was put on IV cefazolin and IV vancomycin. It was considered a persistent deep infection. There was significant erythema around the whole wound.

On the 5^th of May 2021, he underwent a washout, debridement and exchange of poly liner.

On the 14^th May 2021, Mr Cook was reviewed on the ward by Mr Basten. Mr Basten noted that Mr Cook was severely depressed. Despite taking mirtazapine. Mr Basten noted that he had many features of major depression, including decreased motivation, reduced drive and energy, increased irritability, feeling worthless and starting to feel hopeless about his life. Mr Cook noted that he wanted to proceed with an amputation and Mr Basten agreed from an emotional view that he would be able to cope with this procedure and it would be good for his emotional state.

His cultures came back as ecoli bacteria and the IV antibiotic was changed to high dose IV meropenem and the following day was changed to IV ampicillin. On the 19^th of May the IV antibiotic was changed to oral ciprofloxacin, a high dose of 750 mg twice a day.

It was decided that he undergo an above knee amputation with removal of implants from the femur, debridement of the femoral canal, removal of the excess cement from the knee replacement and put in an antibiotic impregnated cement spacer.

On the 22^nd of May 2021, Mr Cook underwent a right above knee amputation with removal of implants from femur and removal of cement plus insertion of antibiotic spacer performed by Professor Al Muderis, and Dr Tetsworth.

On the 26^th of May 2021, Mr Cook underwent surgery for the removal of antibiotic spacer situated on the right femur and right trans-femoral osseointegration with bone graft to TMR to femoral, sciatic, and saphenous nerves performed by Prof Al Muderis.

On the 11^th of June 2021, Mr Cook suffered a fall at home and knocked the amputation site resulting in wound dehiscence.

On the 13^th of June 2021, Mr Cook he underwent a washout and debridement.

On the 30^th of June 2021, Mr Cook underwent the removal of antibiotic spacer from the right femur, and a right transfemoral osseointegration performed by Prof Al Muderis.

Prof Al Muderis noted that during the procedure the decision was made not to proceed with the targeted muscle reinnervation (TMR) to femoral, sciatic and saphenous nerves, due to the length of the surgery and anaesthesia, in context of the patient’s cardiac co-morbidities and intraoperative bleeding. It was noted that TMR may be revisited at a later stage.

On the 21^st of October 2021, Mr Cook was reviewed by Professor Al Muderis and his colleague Dr Ali Tarbosh. Mr Cook was fitted with two crutches for assisted walking, upgraded from a walking frame. Mr Cook reported no issues and no pain with his stump.

Dr Ali Tarbosh noted on examination there was no oozing or sign of infection from the stoma itself. Professor Al Muderis advised Mr Cook to take it easy and follow the slow loading protocol. He was also referred to do an EOS scan to have a look at his lower limb alignment.

On the 10^th of February 2022, Mr Cook was reviewed by Dr Datta on behalf of Professor Al Muderis. Mr Cook reported that he was doing well. He was using two crutches to mobilise outside and mobilising with a wheelchair inside his house with no complaints of pain or any restrictions in movement.

Dr Datta noted on examination his stoma appeared healthy. His hip range of motion was excellent with no pain in the right hip or contralateral hip and knee. The EOS scan of his implant appeared to be very well positioned with good alignment. The previous varus in his left knee remains.

Professor Al Muderis recommended that he should continue to try to lose weight and start progressing to using one crutch only. He was also cleared medically to begin playing wheelchair basketball, and he was now cleared to begin driving.

My Cook is due to be reviewed by Professor Al Muderis in May 2022.”

Later in his report, Dr Rowe pointed out the Plaintiff was taking Endone and MS Contin for pain relief, as well as diuretics and analgesics. He is now, also, being treated for a non-insulin dependent diabetes mellitus type 2, and that is under control by medication.
The Plaintiff was 170 centimetres tall and weighed 160 kilograms. The Plaintiff admitted to Dr Rowe that he had recently put on weight. The Plaintiff has always been, to use his own words, “a big boy”. He was 100 kilograms at the age of 16. His weight fluctuates. Since he has been largely rendered immobile because of the damage to his right leg, its ultimate amputation and the insertion of the prosthesis, the Plaintiff has put on more weight because clearly he cannot exercise. Dr Rowe thought the Plaintiff did not have any capacity for work. He did not think that the Plaintiff was a candidate for re-training or re-education at that time. He thought that the Plaintiff's capacity for work in the future would need to be assessed in one or two years after 31 March 2022.
The psychiatrist, Dr Turnbull, thought that the Plaintiff had fallen into a major depression because of the severity of his injuries, but had since largely recovered. Dr Turnbull examined the Plaintiff on 12 April 2022. Nevertheless, Dr Turnbull thought the Plaintiff would require a large number of sessions with a psychologist and he recommended at least 38 such sessions would be “a reasonable start”. When asked about his opinion as to the Plaintiff’s capacity for work, Dr Turnbull said this:

“Psychiatrically, this is an interesting one. I think in terms of the distraction his physical condition serves, it would be quite difficult for him to work in any conventional workplace, including on the road. Driving commercially is now utterly ruled out.

I think he could probably work at his own pace at home, but in terms of conventional employment somewhere, I am not sure what he could actually do.”

The orthopaedic surgeon, Dr Mills, only gave a guarded prognosis. That was largely because of a recent infection around the osteo integrated prosthesis. Dr Mills thought that there was likely to be persisting thoraco-lumbar spinal pain and leg pain as a result of the Plaintiff’s injuries. He thought the Plaintiff “may be able to retrain potentially as a desk worker.” But on the evidence, I have heard, that appears to me to be highly unlikely.
Dr Mills, for what it is worth, diagnosed a 47% whole person impairment. Dr Turnbull had given the Plaintiff a 5% whole person impairment because of his psychiatric condition. The report of Mr Ravagnani is somewhat prolix. It contains 21 pages. It was largely designed to try to ascertain what the Plaintiff's employment history might be. I found it of little utility other than telling me what the Plaintiff's history was, as far as employment is concerned, and about the difficulties faced by the disabled and the ageing in finding employment in our community. Under the heading “Transferable Skills”, Mr Ravagnani said this:

“Mr Cook has developed a range of relevant worked-based skills as a result of his time in the workforce. These include all aspects of heavy vehicle operation such as transporting dangerous goods, refuelling aircraft, yard duties and vehicle maintenance, mobile plant operation including fork lift, front end loader, bobcat and tipper, warehouse duties, bar service, hospitality venue security, commercial cooking, supervising gaming operations, stock control and customer service. He also has experience with managerial responsibilities including staff training, supervision of employees and cash handling.

Mr Cook also possesses non-technical or ‘soft skills’ which include the ability to work effectively within a team, oral and written communication skills, analytical and problem-solving skills, self-management skills, customer service skills, conflict resolution skills and situational awareness. Other relevant skills include the ability to take instruction or correction, to work with minimal supervision, to undertake a task to completion, to achieve minimum standards of performance and to make judgements and decisions. In addition to basic attributes of reliability, punctuality and flexibility, these generic skills are fundamental to the world of work.”

I found those paragraphs overly optimistic. I do not accept the Plaintiff has the ability to work effectively within a team, using oral and written communication skills or analytical and problem-solving skills or any self-management skills. In his report, which is Exhibit 3, Dr Dalton said this:

“These records indicate that there were a number of barriers to Mr Cook finding employment on the open labour market. Were it not for the subject accident, it is likely that he would have found work as a chef, but would have had to cease work to undergo open heart surgery the following year. It is clearly difficult to determine what his work capacity would have been like in any event but more likely than not he would have had periods of unemployment and I believe that he would not have coped with full-time work as a chef or truck driver on a consistent basis due to his other medical complaints, co-morbidities, and probably a number of psychosocial factors which are alluded to in the GP records. However, clearly as a result of his orthopaedic injuries Mr Cook’s prospects of being able to find work as a chef or truck driver are permanently affected.”

I have no hesitation in accepting the last sentence of Dr Dalton’s report. I would point out that the Plaintiff did undergo heart surgery in 2020, but he would have been incapacitated at that time in any event, by reason of his orthopaedic problems. No one has sought to ascertain whether the Plaintiff’s very serious orthopaedic problems may have precipitated the need for the cardiac surgery, but it might have been arguable. However, that is not sought to be done.

Consideration

Clearly, the Plaintiff has had a number of co-morbidities for many years but, in essence, they have not stopped him from working. I accept that the Plaintiff is now prevented from returning to work as a truck driver. I accept the Plaintiff is now prevented from returning to work as a chef. Those two incapacities are a direct result of the injuries he sustained in this motorcycle accident.
The Plaintiff said that the work at the Commercial Club was demanding in that it required him to be on his feet for nine hours each shift, with only a half hour break. Most chef work requires one to be on one’s feet.
The Plaintiff would have preferred to be working at a hotel where he might work for, say, four hours, between, say, 11:00am and 3:00pm for lunch, and then return and work from, say, 6:00pm until 10:00pm in the evening with a substantial break between the two. One can understand that, given the Plaintiff’s size and general health. However, now he is prevented from doing that.
The real question is whether the Plaintiff would have returned to truck driving, had this accident not occurred. He said that he wished to do so. That work was his joy. I am confident the Plaintiff would have done his best to obtain work as a truck driver and, no doubt, would have behaved in a better fashion as a road user, bearing in mind his problems at Metropolitan Express Transport Services at Albury.
It is common ground that the Plaintiff, had he not been injured, would have worked at least for some time as a chef, according to calculations given to me by Mr Dooley for the Plaintiff. The Plaintiff would've been earning $900 per week net on average if he had stayed earning with the Commercial Club.
The period of the suspension of his driver's licence was to expire on 28 May 2020. No one would have hired him to be a driver from early August, merely to have him being unable to drive from 29 October 2019. The first time the Plaintiff could realistically have sought to turn to truck driving was after the period of suspension of his driver's licence on 28 May 2020.
I am fully cognisant of the fact that the Plaintiff applied for a good behaviour licence, and that was granted to him with effect on 29 January 2020 for a period of one year. However, the Plaintiff’s circumstances have changed remarkably in that time. He sustained injuries which would have prevented him from ever returning to the truck driving business. In the circumstances it might have been better for him, especially bearing in mind the problems he has had with his mobility to obtain an ordinary driver’s licence even on a good behaviour basis so that he could move himself around.
However, if he was still thinking of returning to truck driving, the shorter the period of suspension on a permanent basis the better it would be for him. So, it is likely, in my view, that had he remained uninjured, he would have seen out the period of suspension to 28 May 2020, and thereafter sought to re-join the work force.
The Plaintiff's economic loss from 12 August 2019 to 28 May 2020 should be reckoned as a loss of $900 per week for 39 weeks. I was told during addresses that it amounted to $35,100. I accept that it is likely that the Plaintiff would have done his best to obtain employment as a truck driver thereafter, and given that his last driving offence as a truck driver was on 28 June 2019, that is, bearing in mind that the offence was almost a year old, I believe it likely that he would have obtained work in the trucking industry after 28 May 2020.
The Plaintiff's economic loss to date must be a loss calculated in the way the Plaintiff calculated it, but bearing in mind that the first period is that covered by the finding I announced earlier. The Plaintiff's methodology was to allow increases to the rate at the rate of 3% per annum to reflect inflation on the rates that the Plaintiff had been earning with Metropolitan Express for each of the financial years thereafter. Counsel are to bring in the assessment of the total past economic loss. I allow 11% of that total economic loss for loss of past superannuation. Counsel is to bring in a short minute to reflect that as well.
The Plaintiff approached the question of future economic loss by taking the projected earnings with Metropolitan Express by adding 3% per annum to the Plaintiff's average earnings with that company, and then making allowance for a residual earning capacity of $200 per week net. Deducting $200 per week net from that amount and using that as a basis for the calculation of future economic loss. In my view, that approach is generous towards the Defendant. I believe it highly unlikely that the Plaintiff will be able to find clerical-type work bearing in mind the observations I have already made on that score. Perhaps the most suitable thing for the Plaintiff to do will be to find some telemarketing work or the like. Paragraphs 97 and 98 of the Plaintiff's written submissions are these:

"97. It is appropriate to allow the plaintiff may [sic] retain capacity of $200 net per week. This would take into account the fact the plaintiff's is likely to retire from the workforce earlier than the 70-75 years that he would have liked to have worked. We have prepared a damages schedule on the basis of the plaintiff working to 67 years of age. If we would take the median figure between 70 and 75 years, of 72.5 years, this represents a 15% adjustment of the plaintiff’s damages.

98. An additional allowance of 15% for vicissitudes has been made.”

Accordingly, the Plaintiff’s schedule claims only economic loss to age 67 with the traditional 15% discount for his vicissitudes. I realise that Plaintiff has said that he would've liked to work beyond 70 to age 75, if he could, but given the Plaintiff's other medical conditions and bearing in mind the effects of age, I believe it highly unlikely that the Plaintiff would work beyond at the time that he would qualify for the age pension. The Plaintiff told me that he has no superannuation. All the more reason for him to leave the workforce when he could and obtain the age pension. Furthermore, allowing the Plaintiff to work towards 75 years or thereabouts assumes that the Plaintiff would not be relatively inconvenienced by his cardiac condition, his sleep apnoea, his obesity, and his diabetes mellitus type 2, as well as any other ongoing problems (and there is reference to skin problems).
I have also needed to consider acutely whether the Plaintiff could stay in the trucking industry to the age of 67 years. The trucking industry does not just require driving. It requires the driver to ensure the safety of his load, to be involved in the loading and the unloading of this truck, and to be able to deal with running repairs to the vehicle.
In my assessment, the correct approach would be not to apply the traditional discount of 15% for vicissitudes, but to increase that discount to 20%, such that the Plaintiff is to recover 80% of his future economic loss. I allow 14.47% of the Plaintiff’s economic loss on account of future superannuation. The parties have agreed that the Fox v Wood (1981) 148 CLR 438 component is $45,000.
The remaining claim is for damages for non-economic loss. The Plaintiff claims $500,000. Counsel originally thought that he had to rely on a percentage of a most extreme case, but that is not a requirement of the Motor Accident Injuries Act 2017. That Act merely imposes a cap; otherwise, the common law applies.
The defence submits that I would allow for non-economic loss the sum of $350,000. The Plaintiff’s experience of pain and suffering and loss of amenity of life has been harrowing. On many occasions when giving his evidence, the Plaintiff was reduced to tears. This accident, and the injury resulting from it, have been a major disaster for this man, his view of himself, his view of himself in the world, and his view of his utility to his wife and to his children and to society at large. Doing the best I can, I allow for non economic loss $475,000.
Counsel have now made the calculations I have asked them to make and that calculation is now MFI 17. The Calculation is this:

Non-economic loss $475,000.00

Past economic loss $217,549.00

Past superannuation $23,930.00

Future economic loss $600,221.58

Future superannuation $86,852.06

Fox v Wood $45,000.00

Total $1,448,552.64

Less 25% Contrib. Negl. $362,138.16

Total $1,086,414.48

Order

For those reasons, I give verdict and judgment for the plaintiff against the defendant for $1,086,414.48.

[Counsel heard on costs]

I order the defendant to pay the plaintiff’s costs on the ordinary basis to 14 September 2022, and thereafter on an indemnity basis.

Decision last updated: 25 January 2023

Medium Neutral Citation:	Cook v Siperki [2022] NSWDC 665
Hearing dates:	31 October 2022-3 November 2022
Date of orders:	3 November 2022
Decision date:	03 November 2022
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	1. I give verdict and judgment for the plaintiff against the defendant for $1,086,414.48. 2. I order the defendant to pay the plaintiff’s costs on the ordinary basis to 14 September 2022, and thereafter on an indemnity basis.
Catchwords:	CIVIL – PERSONAL INJURY – MOTOR ACCIDENT – LIABILITY – QUANTUM – CONTRIBUTORY NEGLIGENCE – Defendant’s failure to keep a proper lookout when exiting driveway onto main road – Motorcyclist exceeding speed limit when travelling on main road – Inability of motorcyclist to take proper evasive action prior to collision – Major personal injury to the right leg. CIVIL – PERSONAL INJURY – MOTOR ACCIDENT – QUANTUM – Economic loss – Non-economic loss – Inability of the Plaintiff to regain proper employment in fields with relevant experience – Inability of Plaintiff to find suitable work.
Legislation Cited:	Motor Accident Injuries Act 2017 (NSW) Road Rules 2014 (NSW)
Cases Cited:	Fox v Wood (1981) 148 CLR 438 Nominal Defendant v Green [2017] NSWCA 280 Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 Stuart v Walsh [2012] NSWCA 186; (2012) 61 MVR 271
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – Jason Matthew Cook Defendant – Nicole Siperki
Representation:	Counsel: Plaintiff - Mr B. Dooley SC and Mr S. Hunt Defendant – Mr J. Turnbull SC and Ms S. Warren Solicitors: Plaintiff – Don Cameron & Associates Defendant – Holman Webb Lawyers
File Number(s):	2021/00364314
Publication restriction:	Nil.

ID#	Timestamp [Prem time]	Figure No.	ΔT (seconds)	Description
1	13:44:30.64 [00:04:31:21]	Figure 29	0.0 (6.88)	The Amarok stops in the driveway of #517. A northbound vehicle passes it a couple of seconds later.
2	13:44:33.48 [00:04:34:20]	Figure 30	2.84 (4.04)	Amarok starts to exit the driveway, making a right turn (southbound) onto Dallinger Rd.
3	13:44:34.48 [00:04:35:17]	Figure 31	3.84 (3.04)	A moving object is just observable, presumed to be the motorcyclist, visible through a gap in the trees toward the top left of the CCTV frame. [As noted by Mr Keramidas, WKA report, p37]
4	13:44:37.00 [00:04:38:07]	Figure 32	6.36 (0.52)	Mr Cook’s head first becomes visible at end of building roofline of near northwest corner which was otherwise obscuring him.
5	13:44:37.48 [00:04:38:17]	Figure 33	6.76 (0.12)	Motorcycle in view, has reached VW frontal area. [24 frames in this second]
6	13:44:37.52 [00:04:38:20]	Figure 34	6.88 (0.0)	POI – This determined 2 frames (0.08s) prior to a discernible movement of the VW. It continues to move forward and rotates through a small clockwise arc (front rightwards) from the impact.
7	13:44:38.04 [00:04:39:07]	Figure 35	7.40 (+0.52)	Mr Cook/motorcycle emerge at the rear of Amarok.
8	13:44:38.56 [00:04:39:20]	Figure 36	7.92 (+1.04)	The Amarok comes to a complete stop post-impact. (25 frames / 1.0s post impact)
9	13:44:39.00 [00:04:40:08]	Figure 37	8.36 (+1.48)	Mr Cook/motorcycle come to complete stop on roadway (point of rest – POR). Bike slides to stop just prior to Mr Cook’s position, in front of driveway.