Costa v Goudappel
[2021] ACTMC 7
•20 May 2021
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Costa v Goudappel & Anor |
Citation: | [2021] ACTMC 7 |
Hearing Date(s): | 23-25 November 2020; 11 December 2020 |
DecisionDate: | 20 May 2021 |
Before: | Magistrate Morrison |
Decision: | See paragraphs [148], [160] |
Catchwords: | TORTS – NEGLIGENCE – factual causation – claim for damages arising from motor vehicle accident – whether breach of duty caused harm |
Legislation Cited: | Civil Law (Wrongs) Act 2002, s 45 Evidence Act 2001, ss 4, 63, 135, 136, 137 |
Cases Cited: | Lumley v Sainsbury [2017] ACTSC 40 Purkess v Crittenden [1965] HCA 34, 114 CLR 164 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Kiiver v King [2013] ACTSC 142 Grigoriadis v Sidiropoulos [2019] NSWDC 486 King v Barrie [2020] ACTSC 36 |
Texts Cited: | Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985) Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020) |
Parties: | Carmelina Costa (Plaintiff) Petronella Goudappel (First Defendant) Insurance Australia Limited, trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel Mr L Edwards (Plaintiff) Dr K Rewell SC (First and Second Defendant) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Sparke Helmore Lawyers (First and Second Defendant) | |
File Number(s): | CS 229 of 2019 |
MAGISTRATE MORRISON:
The plaintiff claims damages for personal injuries sustained in a collision on 29 November 2016, when she was a passenger in a car owned by her son-in-law and being driven by her daughter, Ms Bianca Noja. I refer to it as the Mazda. The plaintiff says that it collided with a Citroen car being reversed by the first defendant. The plaintiff points to damage to the passenger door as supporting evidence of the fact of the collision and the extent of it.
The defendants say that the collision did not occur in the manner alleged by the plaintiff in that the contact between the cars was very slight. They also say that the collision cannot have caused the damage to the front door of the plaintiff’s vehicle and that the slight impact which took place cannot have caused the harm of which the plaintiff complains.
Preliminary matters
There are two preliminary matters to be dealt with.
Admissibility of the statement of Mr Herfst
The first preliminary matter is the admissibility of a statement given by Mr Bill Herfst. He shared the residence at 16 Orange Thorn Crescent with the first defendant and was a passenger in the vehicle driven by her at the time of the accident. He made a written statement to an investigator, Mr Alan Hodge on 22 January 2019. He did not give testimony in Court. There is no contest that he was unable to do so by reason of suffering from dementia and that he is therefore a person not available to give evidence about a fact for the purpose of s 4(1) of Part 2 of the dictionary to the Evidence Act 2011 (ACT). The defence seeks admission of the statement under s 63 of that Act. The plaintiff seeks its exclusion via the exercise of the discretion provided for in s 135.
The plaintiff’s argument is that the admission of the statement is unfairly prejudicial. That expression is used in ss 135, 136 and 137. The Australian Law Reform Commission (‘ALRC’) explained its interpretation of the expression as meaning a “danger that the fact-finder will use the evidence to make a decision on an improper, perhaps emotional, basis i.e. on a basis logically unconnected with the issues in the case”.[1]
[1] Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985) vol 1, 351-352 [644].
In the case of a hearing in this court, where a legally qualified and trained magistrate is the fact finder, the risk that evidence will be so used is low.
Subsequent decisions in several jurisdictions have however questioned whether the meaning of the expression is limited in the manner suggested by the ALRC. A review of the conflicting authorities on the question of whether the inability to cross-examine the maker of the statement can constitute prejudice to a party usefully appears in Uniform Evidence Law.[2]
[2] Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020) 1216-1220.
The exercise of the discretion under s 135 also requires consideration of the probative value of the evidence. Several observations can be made about the probative value of the evidence:
(a) I infer the existence of a close relationship between Ms Goudappel and Mr Herfst.
(b) The statement was made some two years and two months after the accident.
(c) Mr Herfst was 93 years of age at the time he made the statement. The testimony of Mr Storn and Mr Hodge suggests that he was not suffering from any material cognitive impairment at the time of the accident in 2016 or when he gave the statement in January of 2019.
(d) Mr Herfst was seen by a geriatrician Dr Selvadural in May of 2019 – some four months after he gave the statement. It is apparent that Mr Herfst presented after he behaved erratically and violently at a medical centre. Certain tests were done. Mr Hersft’s scores demonstrated deficits in attention, language, abstraction and memory recall. Her testimony was somewhat unclear, but Dr Selvadural accepted that dementia is a progressive disease and some individuals appear to suffer sudden acceleration for various reasons. She appeared to accept, although perhaps not unconditionally, that the opinion of family members and others about a patient’s mental state at a given time was fair indication of their lucidity at that point in time.
(e) The defence accepts that Mr Herfst was both hearing and sight impaired. That is not something mentioned in his statement, and the effects, if any, on the things he records in his statement are unknown.
(f) On the basis of the testimony of Ms Goudappel and Mr Storn, it is apparent that discussions took place between them and Mr Herfst about the circumstances surrounding the accident before the statement was made. The overall tenor of the testimony of Ms Goudappel and Mr Storn suggests that the discussions questioned whether the damage allegedly attributed to Ms Goudappel could have been caused by the Citroen, and were likely to have been critical of the plaintiff and/or her daughter Ms Noja.
Those observations lead me to conclude that the probative value of the proposed evidence is very low.
Those same observations also lead me to conclude that, in the circumstances, the effect of the inability of the plaintiff to cross-examine the witness, in particular about the effects of his hearing and sight impairment and the content of any discussion with Ms Goudappel and Mr Storn, is significant.
In the circumstances before me I accept that to be a prejudicial effect. It outweighs the low probative value of the evidence.
Accordingly, I rule that the statement which is MFI A be excluded in the exercise of the discretion in s 135 and I have not had regard to its contents.
The relevance of the defendant’s “purported withdrawal of admission of breach”
I turn to the second preliminary issue. It is the plaintiff’s complaint about what is described in the written submissions as “the purported withdrawal of admission of breach”. It can be dealt with shortly.
Some comments were made about the subject matter of the complaint in the plaintiff’s opening. No formal application in proceedings had been filed. It is not clear what relief, if any, was being sought, although Mr Edwards did say that the complaint may also be relevant to his application to exclude Mr Herfst’s statement under s 135.
I have decided that s 135 application in favour of the plaintiff without reference to the complaint.
No application in proceedings was filed in the course of the hearing nor was any relief sought particularised. I was not asked to take the subject matter of the complaint into account in the analysis of any of the evidence under consideration at hearing, apart from the s 135 application. In the circumstances I have approached the matter on the basis that nothing further is required of the court in relation to the plaintiff’s complaint.
Determination of liability
I turn to the case proper.
The evidence in the plaintiff’s case comprised evidence given by the plaintiff herself, her daughter Bianca Noja (the driver), her husband John Costa, a Dr John Bentivoglio who is an orthopaedic surgeon, and a Mr Andrew Mifsud who is an occupational therapist. Documents admitted into evidence by consent were medico-legal reports by Dr Bentivoglio and Mr Mifsud, other clinical notes, a police crash report, NRMA insurance claim documents, a briefing letter to Dr Bentivoglio dated 10 April 2018, correspondence between NRMA and Maliganis Edwards Johnson, correspondence between Maliganis Edwards Johnson and Sparke Helmore, and an agreed schedule of out-of-pocket expenses.
The plaintiff was 71 years of age at hearing in 2020. The accident had taken place in 2016. She said she was sitting in the front passenger seat of the car. It had been parked in the driveway of her house. Her daughter Bianca Noja reversed the vehicle into the street and set off in a northerly direction along Orange Thorn Crescent. The first defendant’s home is very close – about two houses distant on the western side of Orange Thorn Crescent. The plaintiff said she felt a bang and that her daughter travelled a little way down the street and stopped abruptly. She said she remembered being jerked from side to side and her left shoulder hitting the car door. She said she did not see anything, adding “I just felt it.” The airbags did not deploy. She said she did not get out of the car, but her daughter did and spoke to the other driver. Her daughter then got back in the car and they went home. She said she noticed the damage to the passenger door when she was getting out of the car. Under cross-examination, she said the door had not been damaged when she gotten into the car, and that she would have noticed had that been the case. She said she had not seen the other car before the collision.
It was suggested to the plaintiff that there was not a significant impact to the door right next to her and she said “Yes, there was.” It was suggested that what occurred was a light bump, that it did not cause the damage to the car door, and did not cause her to jerk or jolt from side to side. She denied those suggestions. She denied a suggestion that she and her daughter had made up a story to have what was pre-existing damage to the car repaired at somebody else’s expense and to make a damages claim.
The plaintiff was shown a photograph of the first defendant’s driveway.[3] It shows vegetation on the footpath outside the first defendant’s house. There is very low foliage for some distance immediately adjacent to the driveway in the direction from which the car carrying the plaintiff travelled, and then a quite high hedge starts and continues further in that same direction. The plaintiff said that the photograph was taken after the accident, because at the time the low foliage was the same height as the high hedge, and that it was cut after the accident. She said that the first defendant could not see the Mazda because of that foliage.
[3] Exhibit D1, 112.
The plaintiff agreed that it had been her daughter’s idea to see a solicitor, and that she (her daughter) had made the appointment less than two weeks after the accident. She agreed that she had not consulted a doctor until after she had been told to do so by her solicitor. She said that was because the pain came on gradually.
The plaintiff’s daughter is Bianca Noja. She was 36 years old at hearing. She and her husband and children live with the plaintiff. She was the driver of the vehicle and she gave evidence in the plaintiff’s case.
In summary she said this about the accident:
(a) The street was quite narrow, and it was necessary to keep close to the curb to allow oncoming cars to pass.
(b) She was “going pretty slow” immediately before the accident. She “felt a hit” and the “car kind of moved”. She “felt like a jolt in the seatbelt” and “heard a bang”. Her mother screamed, and her daughter started crying.
(c) She stopped the car just past the driveway. She got out of the car and checked on her daughter and mother.
(d) She saw a red car “kind of over the driveway” with a man and woman inside. She went to the car and asked if they were OK, and then said “I think you just hit me”. The woman said “Oh. We didn’t see you.”
(e) When she opened the door to check on her mother and daughter, she noticed “a big dent” in the door. When she got home she noticed “there was a big dent and a little red mark on the paint”. She described it as a stripe “the length of a pin”. When pressed, she said that it was horizontal and a couple of centimetres long but could not recall how thick it was.
(f) When they got home, her mother was “shook pretty bad”.
(g) In the following days she reported the incident to police and made an insurance claim on her husband’s behalf. The car was repaired. At some point she arranged a meeting with solicitors which her mother also attended.
In the course of cross-examination, Ms Noja said that there was no damage to the car before the accident, although when shown a photograph she accepted that there was a white scrape below the headlight before the accident. She identified the damage caused by the accident as that shown in the photographs on pages 133, 134 and 136 of Exhibit D1.
She confirmed that she had seen a red mark across both doors after the accident which is not shown in the photographs. She at first said that she could not recall the height of the red mark but later did mark a copy of one of the photographs with the position. That marked photograph became Exhibit D2. She did not know what happened to the red mark before the photograph was taken and agreed that it may have been washed off.
She said she did not see the other car until after she had stopped her car. She did not know what had hit her. She said that the hedge had blocked her view. She said it had been up to six feet tall at the time of the accident and that it must have been cut after the accident.
She denied a suggestion that the damage to her car was present before she left the house on the day of the incident.
Evidence was given by the plaintiff’s husband Mr John Costa about the damage to his daughter’s car. He was not an easy witness. The thrust of his testimony (as I understood it) was that he had no reason to look at any possible damage to the car until after he had been told of the accident. He identified damage to it when told about the damage. He referred to having observed some damage by way of a broken headlight or taillight, but said that he did not know when that damage occurred.
Interestingly, Mr Costa also took the opportunity to talk about the hedge, saying:
I said it was bound to happen, because you don’t build a hedge – what a – that restricts you from looking, or standing – that could have been a little kid running down the street, and not necessarily my daughter’s car.
In the defendants’ case, testimony was given by Ms Goudappel, who was the driver of the other vehicle. I ruled the written statement by her passenger Mr Hersft to be inadmissible for the reasons already given.
Mrs Goudappel was born in 1929 and was 91 years of age at the time of the hearing. Her testimony can be summarised as follows:
(a) She had lived at the property in Orange Thorn Crescent with her son John Storn and Mr Herfst.
(b) She could not remember what was the height of the hedges shown in the photographs at pages 111 and 112 of the tender bundle.
(c) She still holds a driver’s licence and drives at least every second day. When asked how often she drove in 2016, she said “sometimes daily”.
(d) On the day of the accident, she was reversing down her driveway. She was going slowly. She felt a bump. When asked where her wheels were when she felt a bump, she said “maybe still just down the gutter”. When she felt the bump she put the brakes on and stopped the car.
(e) The other driver got out and said that it was an accident. Ms Goudappel thought that the other driver could have seen her (Ms Goudappel) slowly getting out of the driveway.
(f) The bump was a little bump. She had been just edging backwards.
(g) She looked at the back of her own car and there was no damage to it. She mentioned a blue spot or fleck but said that it “could have gone - happened anywhere else”.
(h) Her son was not at home, but when he heard about the accident he went to look at the other car and took some photos.
The transcript records that she said she saw on the other car what she described as a “scrape and a dint that you could just about put your fist in”. An exchange took place about whether she had used the word “scrape”. When asked directly she said that she had not seen scrape marks on the other car and there were none on hers. She described what she saw as looking like the door had been hit with a cricket ball.
In cross-examination, Ms Goudappel was asked questions about whether the hedge was obstructing her view. I took her answers as meaning that it was. (I refer later in more detail to the evidence about the “hedge” and what it comprised.)
She was also asked questions about whether she had heard a bang when she felt a bump. I took her answers as meaning that she had but that it was not very loud.
She was taken in cross-examination to two written statements she had made about the incident. She conceded that in her first statement she had said that her car was involved in an accident with another car. She conceded that her vehicle had come into contact with the other vehicle but did not feel that she had been at fault. She conceded that when she stopped her car it was protruding slightly on to the roadway. As I understood her testimony, she also accepted that some work had been done on her car under her insurance policy subsequently.
She was also cross-examined about differences between her first and second statements.
As already recorded, Ms Goudappel was 96 years of age at hearing. She had a good command of English. I did not get a sense of any material cognitive impairment which might be associated with old age, although her memory appeared to be patchy. Her answers were at times confusing. In large part this appeared to be the result of not having listened closely to the precise question being asked, or not having appreciated whether she was being asked about her opinion or state of mind now – i.e. at hearing – or at the time of the incident or when she gave her statements. There was also an obvious reluctance on her part to admit anything which might be construed as fault, and an obvious wish to embrace a suspicion of some fault or dishonesty on the part of the plaintiff and/or her daughter.
There is other evidence going to the circumstances of the incident although less directly.
What is very important evidence in the defence case was given by Mr William Keramidas. He is a consulting engineer who works in accident reconstruction. His report of 12 March 2020 was received in evidence as part of Exhibit D1.
He had not inspected either of the vehicles involved in the incident, but he had available to him the photographs of them which were put into evidence, and both the plaintiff’s and defendants’ version of events via the claim forms, pleadings and the like with which he had been briefed.
In summary, his professional opinion was that a collision between the Citroen and the Mazda cannot have caused the damage evident to the Mazda.
He had reached that conclusion on several bases.
The first was the height of the damage shown to the passenger side of the Mazda. The damage extends from about 550 millimetres to 780 millimetres above ground level. He described the damage to the Citroen as very minor scuffing to the bumper bar system, the highest point of which is about 550 millimetres above ground level. In his opinion, the damage to the Mazda above 550 millimetres is incompatible with a collision with the bumper bar system of the Citroen.
In forming that opinion he had made some assumptions about the position of the vehicles vis-a-vis the crossover between driveway and roadway, but he pointed out that if the Citroen had been further onto the roadway, the height differential would have been greater not lesser.
He said that he had taken into account any height difference resulting from the vehicles being laden or unladen.
The second basis for his opinion was the shape and contour of the damage to the Mazda. He described the door to the Mazda as having been “effectively caved in”. He said the force needed to produce that damage needed to be roughly within the centroid area of damage. It follows that the type of object capable of creating that concave form in the Mazda’s door needs to be smaller than the dimensions of the concave form and concentrated towards the centre of the damage. Given the structure of the rear bumper of the system, his opinion was that the shape of the damage to the Mazda’s door was not compatible with a collision with that rear bumper system.
The third basis for the opinion expressed by Mr Keramidas is what he described as the lack of striations. He said that if the Mazda had been moving, he would expect to see on the Mazda “a horizontal series of scuff marks or streaks” on its panel work. Alternatively, if the Mazda had been stationary and struck by the reversing Citroen, the bumper bar system of the Citroen would have flexed up and then back down again leaving vertical lines. He could see no indication of either horizontal or vertical striations to either vehicle.
The last basis for his opinion was the lack of any evidence of paint transfer either from the Citroen to the Mazda or vice versa. Mr Keramidas’ attention was drawn to the testimony from Ms Noja about the thin line of red paint she said she had seen on her car. She had indicated its position on the photograph which became Exhibit D2. That Exhibit was shown to Mr Keramidas. His testimony about it was this:
DR REWELL: And finally in your report you mentioned the lack of any evidence of paint transfer either way, that is, you weren't able to find any red paint on the Mazda and you weren't able to find any great paint on the Citroën?‑‑‑That's correct.
Some evidence was given earlier in this trial by the owner of the - or the operator of the vehicle, Ms Noja?‑‑‑Yes.
That she said she saw a thin line of red paint about the size of a pin on the side of the Mazda, the passenger side, after the couldn't, and he was asked to mark a photograph to show where she says that she saw that pin shaped line, and the marking was made and numbered Exhibit D2. I think you now have a colour copy of Exhibit D2. Is that correct?‑‑‑Yes, that's correct. That was emailed to me just a short time ago.
And do you see a black pen mark which crosses the join of the front and rear passenger doors of the Mazda?‑‑‑Yes.
What do you say about the compatibility of that - let's assume for the moment that there was at one point a pin line of red paint there. What do you say about its compatibility with the bumper system of the Citroën?‑‑‑Okay. In order for the - if I'm - I will assume for a moment, unless you correct me otherwise, that the length of the mark is basically the length of that pen mark that's been - that's been marked on there, and not sort of significantly longer. That indicates that we need to have an edge on the Citroën that's going to be quite narrow in that point of contact, and it needs to basically be - I'm assuming it was intended to be drawn horizontal, that is at a slight angle as I see it in the photograph but I understand it was probably done by hand, so - the narrowness of it and its location seems to first of all be somewhat higher than the bumper bar system of the Citroën and secondly, in order to have such a concentrated area of a paint mark would effectively need for the Mazda to be stationary if the Citroën was reversing. Or for the Mazda to have basically turned into the Citroën and only making what would be the equivalent of a few hundredths of a second contact. The mark isn't long enough or broad enough and it's too isolated. So if, for example, it had been described to you that there were three or four such marks and they extended over a height of let's say 100mm, that would indicate an area of the bumper bar that's actually made contact with the side panelling of the door. So it would need to be broader and it would need to be longer. If what you are describing to me is essentially what is drawn on that photograph, then it's not compatible with bumper bar contact.
In the end result, Mr Keramidas expressed the opinion that he could not exclude a very light contact between the rear of the Citroen and side of the Mazda. He expressed that conclusion in conditional terms as follows:
Mr Keramidas, as I understood your report, you cannot exclude completely a very light contact between the rear of the Mazda and the passenger - I'm sorry, the rear of the Citroën and the passenger side of the Mazda, is that so?‑‑‑Well, that's effectively right. From - from a scientific perspective, I can't exclude any possibility of these two having collided but what I can say is that if such a contact was made it would need to be light enough that the damage observed to the Mazda and the Citroën are not relevant to the collision. In other words, they didn't occur in this collision. And secondly, that the contact was so light that not even paint transfer and particularly of the plastic componentry of the bumper bar system in the Citroën was not able to be transferred onto the panelwork of the Mazda.
Under cross-examination Mr Keramidas was asked about the assumptions he had made to produce the “Damage Profile Comparisons” appearing at figures 1 and 2 of page 26 of his report. He accepted that he had not measured the gradient of the driveway or the camber of the road or the angle of the kerbing and guttering and that he had relied upon Ms Goudappel’s version of events that the rear wheels of her Citroen were in the gutter and that she was travelling slowly.
He accepted that those factors influenced his opinion but also said:
(a) He had the benefit of seeing the photographs of the road and driveway which form part of the appendix to his report;
(b) Insofar as the gradient of the road was concerned there appeared to be “a standard cross-fall” and he had “imposed a standard cross-fall of about 3 per cent”;
(c) He could see that the kerbing was a standard rollover kerb and “they are formed the same way... everywhere”. He had therefore used what he described as the “standard Australian rollover kerb profile”.
Mr Keramidas was asked about the effect on his opinion if the rear wheel of the Citroen was not in the gutter but on the roadway by a distance of some 30 to 40 centimetres. His response was that the point of impact would then be somewhere between what was shown at figures 1 and 2.
He was then asked what the effect on his opinion would be if his assumption of the gradient of the road “were out by let’s say 5 or 6 degrees”. He agreed that would affect the damage comparison, and when asked by how much, replied “something in the order of maybe 25 millimetres”.
Mr Keramidas was asked about the effect on his opinion if in fact the Citroen had been accelerating. He responded by saying that for the rear of the Citroen to lift as a result of acceleration, “she would need to be under some absolutely severe acceleration, maximum acceleration”.
Mr Keramidas was also asked his opinion about noise and jolting resulting from any impact.
He said that even minimal contact between the plastic bumper and hollow door would make a noise. As to jolting, he said that “the impact would need to have been forceful enough to create, if you like, a lateral movement of the Mazda on its – on its suspension. The impact force would need to be something in the order of, say, 5 kilometres per hour plus.”
He was asked if there was a difference between a jolt of the vehicle and the jolt of one of the occupants inside the vehicle “from a physics point of view”. He responded by saying that “they would actually be the same but in the opposite direction, so if the vehicle is jolted by, let’s say, 5 millimetres to the right, the occupant is jolted 5 millimetres to the left because of their inertia”.
The cross-examination moved to the question of paint transfer and marks. Mr Keramidas was asked whether it was possible that “the vehicles collided and then bounced off one another without leaving paint scrapings or paint transfer”. He responded by saying no, adding that “the mere act of the touching of the two vehicles would start generating those marks”.
That response led to questions about the assumptions he had made about the speeds of the vehicles at the time. He said that he had assumed that the Mazda was “travelling forward at some measurable speed, at least, you know, 20, 30 kilometres an hour, something like that”.
He was asked about the effect of assuming that the Mazda was travelling much slower – between perhaps five and ten kilometres per hour. His response was this:
So if the Mazda was merely driving past the Citroen at 5 to 10 kilometres per hour, that's one extreme, but effectively you would see a streak all the way down the side of the - of the Mazda. If the - if the Citroen was reversing at, say, 5 kilometres an hour, and the Mazda was doing 5 kilometres an hour, then effectively you've got the equivalent of a right angle collision where there would be a pronounced engagement over, you know, probably 40, 50 centimetres, and if the - if the Mazda - sorry, if the Citroen was travelling at a higher speed than the Mazda, then you would actually see, or you would expect to see the profile of the bumper bar system of the Citroen actually embedded or engraved - that's probably not the right word - impressed on the side of the Mazda, and I don't -unfortunately I don't see any of those elements.
He was asked about the quality of the photographs with which he had been briefed. He responded by saying, “…the thing that - that gives me comfort in being able to reach my conclusions is that there are sufficient photographs of the same thing reproduced obviously different photographers and different cameras that I feel quite comfortable that I see what there is to see on them”.
He went on to give an example by reference to certain photographs of the bumper bar of the Citroen.
Mr Keramidas was also cross-examined about what could be seen of damage to the bumper bar of the Citroen in the photographs in appendix C to his report – in particular, photographs numbered 5, 9, and 18.
It was suggested that certain things seen on photos 18 and 5 amounted to striations. Mr Keramidas expressed the opinion that they were shadow – making reference to the line of the horizon reflected in the bumper (in 18) and the photographer (in 9). His explanation is logical and consistent with what can be seen in those photographs.
In relation to photograph 5, he clarified that the visible damage was to a cover piece above the bumper bar. He expressed the view that, given its shape, the damage was caused by a sharp object coming from top down and not directed from the back. He pointed out that in any event the damaged section shown “is well in from the furthest extent of a bumper bar”.
He accepted that the damage to the cover could have been caused if the bumper bar had been compressed and then rebounded but that in that case he would expect to see marks on the bumper bar from that compression and rebound, and none were evident.
He was asked about whether the Citroen being on an angle (rather than perpendicular) to the direction of the Mazda would affect his opinion. His response was no. He explained his response by reference to the absence of what he would expect to see in such a case by way of damage to the corners of the bumper bar.
Under cross-examination, Mr Keramidas was asked about his statement at page 27 of his report to the effect that “[o]n the basis of the damage to the Mazda, it would not be expected that any occupant would sustain any form of injury as a matter of physics [being at a much lower threshold than biomedical considerations]”. He conceded that he had no biomedical or biomechanical qualifications. He explained his statement by saying “ Look, I certainly don't profess to have any biomedical qualifications. I'm merely highlighting, perhaps rather clumsily there, that the forces operating on the Mazda to create its damage would not be sufficient to cause any movement or displacement of persons inside the vehicle”.
He accepted under cross that if the vehicles had been modified in some way that would influence his opinion. He was asked about the possible removal of paint scrapes or scuffs. He said, unsurprisingly - “If someone had removed paint, yes, that would certainly, it would’ve been far more useful to have seen it”. He did not however concede that his opinion would necessarily be different – pointing to the absence of any obvious paint transfer from one vehicle to the other and the separate issue of the damage height mismatch.
He accepted that something had come into contact with each of the vehicles, but said that they had not come into contact with each other. He went on to say that if any contact between them did occur, “it had to be so slight as to not leave any evidence of it”. He clarified that he was referring to any physical evidence.
In re-examination, Mr Keramidas was referred to the opinion he expressed in cross-examination that, if the Citroen had been accelerating, that would make the damage mismatch worse. He was asked why that was the case. His response was this:
Well, if she's accelerating and comes into contact with the Mazda, then the spread of that damage would be further and if she's accelerating at the time of impact as opposed to, for example, coasting or braking, then essentially she would be deforming further into the Mazda as the Mazda is progressing forward. So there would be the original contact and then there would be a further depression and again we're talking about something that's going to be half a metre or more in width.
So that would not match the shape of the damage, leaving aside the height, as you explained earlier?‑‑‑Yes, it would make it even less compatible then it already is.
He was also asked again about the possibility of a very slight impact between the cars, and whether that would have resulted in a lateral movement of the Mazda on its suspension. The exchange was in the following terms:
Given what we have seen about the damage or lack of it, to the Citroën in particular, would you anticipate that any rocking at all would have occurred if there was any slight impact between the vehicles at all?‑‑‑No, I would not expect it.
There was no challenge to the expertise of Mr Keramidas, aside from the issue of biomedical/biomechanical expertise raised by Mr Edwards.
The opinions expressed by Mr Keramidas were clearly explained and logical.
His overall conclusion – that is, that the damage to the Mazda was not caused by a collision between it and the Citroen – is based upon the several grounds he refers to. They are the damage height mismatch, the incompatible shape and contour of the damage to the Mazda having regard to the flat surface of the Citroen bumper, and the absence of horizontal striations and evidence of paint transfer.
Logically, those bases for his overall conclusion are not co-dependant. Each stands as a more or less separate ground for it, but is supported by the others.
The cross-examination of Mr Keramidas was thorough and far reaching. He acknowledged the assumptions he had made in reaching his conclusions and expressed how changes to those assumptions would influence his conclusions.
I have set out in some detail the propositions put to him in cross-examination and the exchanges which took place about his assumptions and the effect of changes in them. Many of his assumptions were of course based upon the briefed material. Insofar as his assumptions went beyond the briefed material, such as about the road camber and gutter shape, his testimony demonstrates that they were logically based.
Insofar as his evidence about changes in his assumptions is concerned, in some instances his opinion was that the changed assumption he was asked to consider (such as the Citroen accelerating at the time of impact) led to what was in fact greater support (in his opinion) for his overall conclusion. In other instances what might theoretically have altered his opinion based upon one ground for his overall conclusion did not affect the others, or was a less likely theoretical proposition because of his opinion on those other grounds.
Those observations have not required me to analyse whether the evidence establishes the alternate assumptions which Mr Keramidas was asked to consider.
I have considered the evidence of Mr Keramidas very carefully. My conclusion is that there is no basis to question the scientific approach he took to his analysis of the material he relied upon, and no basis to reject his opinion based upon any deficiency in that material.
I did raise with Dr Rewell in his closing submissions what may have been something of a conundrum in the logic of accepting Mr Keramidas’ evidence. The defence case was put on the basis that it is likely that some very slight contact took place between the two cars. Such a conclusion would be consistent with what Ms Goudappel says about having felt a slight bump. The conundrum is the extent to which Mr Keramidas’ evidence (about incompatible damage heights, incompatible shape and contour of the damage to the Mazda and lack of evidence of paint transfer and striations) would, on its face, make even the very slight contact conceded in the defence case unlikely – thereby undermining the case for acceptance of Mr Keramidas’ evidence in the first place.
Dr Rewell’s submissions were effectively that any contact must have been only very slight and may have caused a minor indistinguishable mark at what is the very bottom of the area of damage observable on the side of the Mazda. It was not a subject pursued in cross-examination of Mr Keramidas, and in the end result I accept Dr Rewell’s submission.
In the circumstances, I accept the evidence of Mr Keramidas. In particular, I accept his opinion that the significant damage to the Mazda observable in the exhibits was not caused by a collision between it and the Citroen. I find that to be the case.
I find that the Citroen made what is properly described as only very slight contact with the Mazda.
The question which arises is the effect of that conclusion upon the plaintiff’s case.
Mr Edwards presses on me that such a conclusion reflects only upon the reliability of the testimony of Ms Noja and not that of the plaintiff. I disagree.
In her evidence in chief, the plaintiff had said that she noticed the damage to the passenger door when she was getting out of the car upon returning home. In cross-examination she was shown the photographs of damage to the door and it was suggested to her that the damage was already there when she left home on the day. She denied that to be the case, and agreed with a proposition that the door was completely undamaged when she got into the car. The damage is in the vicinity of the passenger side door handle, and the plaintiff also agreed with a proposition that if the damage had been there she would have seen it.
The plaintiff’s testimony leaves no room for a conclusion that she may have been mistaken in what she said about the damage to the Mazda, or that her answers might be interpreted as meaning something other than what she had in fact said.
On the basis of her testimony, the damage to the Mazda can only have been caused by the Citroen.
In those circumstances, my finding that the damage to the door was not caused by the Citroen necessarily has serious consequences for my assessment of the plaintiff’s credibility.
Against the background of what is in contest and the other evidence in the case, the question of the cause of the damage to the Mazda is no merely peripheral issue. It is central to the plaintiff’s claim, and I am satisfied that the plaintiff knows that to be the case.
I conclude that the plaintiff was not being truthful in her testimony about her observations of the damage to the Mazda. The only rational inference is that she gave false evidence to bolster her case. That conclusion causes me to doubt the reliability of her other evidence.
Similar observations can be made about the evidence of Ms Noja. Her testimony also leaves no room for a conclusion that she may have been mistaken in what she said about the damage to the Mazda, or that her answers might be interpreted as meaning something other than what she had in fact said.
I conclude that Ms Noja was also not being truthful in her testimony about her observations of the damage to the Mazda. The only rational inference is that she gave false evidence to bolster her mother’s case. Again that conclusion causes me to doubt the reliability of her other evidence.
For his part, Mr Costa was not so clear in his testimony about the damage to the Mazda. At one point he said that he looked at the car every day because when he drives into his garage it is the first thing he sees, and that “hundreds of times” he had told his daughter to move it because it was in the wrong spot.
He made reference to some damage to the Mazda before 29 November 2016, but it seems that he was talking about a damaged headlight or taillight which had subsequently been repaired.
He said that he went to look at the car after Ms Noja told him about the accident.
It was suggested to Mr Costa that he had no reason to look at the condition of the car in the lead up to day of the accident. After some tortuous exchanges, the following took place:
And all I am suggesting to you is that the first time you had any reason to go and look at her car was when your wife and your daughter said that they had had an accident. Then you went and looked?‑‑‑So you think - tell me something; what would you do if someone comes and tell you someone hit? What would you do?
We would do exactly what you did, but the point is during the days or week before that you had no reason to look at your daughter's car because no one said anything. This is before - - -?‑‑‑That's right.
All right, thank you. Could you return that exhibit, please?‑‑‑Well, yes, that's right. I didn't need to go and have a look.
Mr Costa’s answers on the subject were somewhat equivocal and I do not conclude that he gave false evidence.
There is other evidence which bears on my assessment of the plaintiff’s credibility.
Firstly, there is the testimony of the plaintiff’s expert orthopaedic surgeon, Dr Bentivoglio. He had prepared reports dated 21 August 2018, 9 August 2019, and 22 October 2020 which were received in evidence.
Dr Bentivoglio’s records indicated that he had been told by the plaintiff that she had not had problems with her shoulder previously – meaning before the 29 November 2016 incident in respect of which she brings her claim. A statement to that effect appeared in the doctor’s reports, and the doctor said in his evidence that the first and second of his reports had been dictated by him while the plaintiff was sitting in front of him.
In cross-examination Dr Bentivoglio was asked to assume that in fact the plaintiff had had pain in both her left and right shoulder for a number of years before the accident. He agreed that what he was being asked to assume was quite contrary to what he had been led to believe by the plaintiff. I refer to other aspects of Dr Bentivoglio’s evidence later. What is relevant for present purposes is the effect of his testimony on my assessment of the plaintiff’s credibility.
I accept the testimony of Dr Bentivoglio to the effect that the plaintiff had not told him of the pre-existing pain and difficulties she had experienced before the incident on 29 November 2016. It is apparent that information about the pre-existing pain and difficulties was regarded by Dr Bentivoglio as important to the diagnosis made by him.
It is not in contest that the plaintiff had in fact been experiencing shoulder pain in both shoulders for a long time before 29 November 2016, as well as right sided sciatica and back pain, and that she had been prescribed strong painkillers for years before 2016.
In those circumstances, the non-disclosure by the plaintiff of her pre-existing pain and other difficulties (whether positively by way of saying that they did not exist, or passively by way of failing to disclose them) was misleading. It is not unreasonable to infer that she knew of the importance of the information to the diagnosis Dr Bentivoglio was being asked to make.
I cannot see that it was ever put to the plaintiff in the course of cross-examination that she had deliberately misled Dr Bentivoglio. In the circumstances I am reluctant to find that her conduct was deliberate, but I am persuaded that it is yet another basis to treat her evidence as unreliable.
The plaintiff had also seen Dr Kevin Woods at the request of the second defendant. His report makes no reference to the plaintiff having told him of any history of pre-existing back pain. When he gave his evidence he checked his handwritten notes and said that no history of pre-existing back pain was recorded. Whilst the cross-examination of Dr Woods on this point was not particularly clear, I take his answers as conceding that he had no record of having asked the plaintiff about any history of pre-existing back pain. In the circumstances I draw no adverse inference from the doctor’s evidence that he has no record of pre-existing back pain.
The other evidence bearing on the credibility of the plaintiff (and of her husband and of Ms Noja) is what was said about the hedge referred to in the evidence.
Each of them had given evidence suggesting that the hedge at the front of Ms Goudappel’s house would have obstructed the line of sight between the street and the driveway, and that it had been cut after the incident. I am persuaded by the testimony of Mr Storn, and the photographs he took both in June of 2016 and then immediately after the accident, that the part of the “hedge” said to have been cut post-incident was not the hedge at all, but rather a very low, ground-cover-type of vegetation. It had never been a hedge as such, and it had never been of the same type of foliage or at the same height as the hedge which adjoins it. Such a conclusion is also consistent with the common sense observation that what is shown in the post-accident photos does not have the appearance of a formerly high hedge recently cut to a low height.
I should add that as the photographs make clear the height difference between the ground cover and the hedge is, in relative terms, very great.
What had been said by the plaintiff in her sworn evidence was in these terms:
DR REWELL: Now, I want you to assume that on page 112 there is a photograph taken by someone standing in Ms Goudappel's driveway?‑‑‑Yes.
And that is a photograph back towards your house?‑‑‑Yes.
You can see that while there is a hedge and a tree - - -?‑‑‑Yes.
- - - in the top right hand corner, there is only very low foliage between the hedge and the driveway. Do you see that?‑‑‑Yes.
That would not have stopped you seeing a car reversing towards you and into the door next to you, would it?‑‑‑Okay. Now, can I answer your question?
Just from what you could see. That's all we're asking?‑‑‑That photo was taken after the accident because at the time of the accident the brush was as high as the other one. That grass was cut - or the hedge was cut after the accident.
What had been said by Ms Noja in her sworn evidence was in these terms:
DR REWELL: Do you say that in that photograph also, which is photograph 4, the hedge, or at least the part that has the sun on it, was cut - - -?‑‑‑Yes.
- - - from the condition that it was?‑‑‑Absolutely.
Please look at page 111?‑‑‑Yes.
Now we see at the very left of the photograph a taller hedge and then working in from the left side of photograph 6, a hedge cut down to probably 30 centimetres tall?‑‑‑Yes. So, sir, may I say something? That hedge went absolutely all the way to the beginning of that driveway.
Yes, I understand that's what you are saying?‑‑‑Yes.
And you say it was cut after the accident?‑‑‑Yes, it was.
You live not far away. How long after the accident do you say you noticed that the hedge had been cut?‑‑‑To be honest, I actually don't recall the timeframe. I just know that it was cut because I remember it was all the way to the edge of the driveway.
Well, you would remember if it was cut the next day or the day of the accident, wouldn't you?‑‑‑To be honest, I wasn't looking at their house.
What, not even the next day?‑‑‑So I wasn't constantly stalking their house.
Just a moment. You say that on 29 November 2016 - - -?‑‑‑Yes.
- - - something happened that caused the damage that you have demonstrated to your vehicle, correct?‑‑‑That is correct.
And you have said that you didn't see the red car at all?‑‑‑No.
And your explanation was because there was a hedge that went all the way to the edge of the driveway that was probably up to 6 feet tall?‑‑‑Yes.
Is that right?‑‑‑Yes.
Then you say that by the time these photographs were taken, the hedge had been cut down to 1 foot or 30 centimetres tall?‑‑‑Absolutely.
You would have noticed if the hedge was cut by the next day, wouldn't you?‑‑‑Look, I can't recall. It's going back four years. I don't remember what I did the next day. All I know is that was cut. That was not like that at all.
Surely, if the hedge was cut within 24 hours after the accident happened, when you next went past it would have occurred to you that, 'Look, they have cut the hedge'?‑‑‑Yes, okay but I just can't recall doing that. That's going the very next day and being like, 'Look, they've cut the hedge.' I recall that hedge was all the way.
Could you go to the photograph on page 112?‑‑‑Yes.
You see there a view looking back up towards your home?‑‑‑Yes.
Starting at the driveway of your neighbour where you say the accident occurred?‑‑‑M'mm.
Again you see that there is a stretch of hedge that is probably only about 30 centimetres high, if that - - -?‑‑‑Yes.
- - - before a much taller hedge?‑‑‑Yes.
Now, you say that the hedge was not in that shape at the time of the accident?‑‑‑That's correct.
You see, I want to suggest to you that the photograph you are looking at, photograph 7, page 112, was taken the next day?‑‑‑All right. Really?
The next day?‑‑‑Who took that?
John Storn, S-t-o-r-n?‑‑‑Is that their son?‑‑‑Yes.
It's incorrect. Sorry, I don't believe it. That hedge was full.
I want to suggest to you that the hedge was not cut down in the 24 or so hours after the accident but was in that condition at the time of the accident?‑‑‑No.
…
Even if it were the fact, and I am not suggesting it was… that the hedge was cut within a day after the accident, you would still have seen the red Citroen at the last moment before it hit you, wouldn't you?‑‑‑Okay. If those hedges were cut like that, I possibly would have seen them reversing, yes, but that was not like that.
And then:
You see, if someone was reversing out as you were travelling that slowly you would have seen them before any collision occurred, wouldn't you?‑‑‑Not necessarily, no, because I was not looking to the side of me. I was looking in front of me as you do when you drive.
And as you do when you drive, you see not only what is directly ahead but you have peripheral vision to both sides, don't you?‑‑‑Absolutely, but when you've got hedges that high you can't see. You could not see.
Well - - -?‑‑‑I kind of wish they didn't shave it because if you drive down my street and you see where it was, you will even see you cannot see the driveway.
And what had been said by Mr Costa in his sworn evidence was in these terms:
MR EDWARDS: Why was it bound to happen? --- They had built a hedge right on the road, between this hedge, she tread on the edge of the road.
The hedge, did you say?‑‑‑They're not finished, you see, and that's what this hedge is. ...(inaudible)... . They go up to one and a half metre high, so I think you can't see when you are reversing, you can't see whose coming from there, and I knew because I'm a builder. I do these things, and I said this was bound to happen. A few days, what do you think happen? ...(inaudible)... and I told her, I said, 'Look what they done, go and have a look.' They can't do ...(inaudible)... look at it. There you go, look at it. You can't see the base. The base is there. The roots are there, but it has been cut probably two, three metres back.
It is obvious that the testimony given by the plaintiff and her husband and Ms Noja was blatantly wrong.
It seems unlikely that all three of them were simply mistaken. It is perhaps theoretically possible that one of them was mistaken and that one may have then innocently induced a mistaken recollection in the others in family discussions about what took place. Ms Goudappel’s residence was however very close to the home where all of the witnesses lived, and I infer that they passed it from time to time. In addition, the difference between the height of the two types of foliage comprising the hedge and the groundcover is dramatic – a vertical drop from about 1.5 metres or more to about 30 centimetres. Against that background, the adamant assertions of the witnesses that the hedge had been cut post-accident make the possibility of innocent mistake unlikely. In the circumstances I am persuaded that each of them was not being truthful in the evidence they gave about the “hedge”.
Again, that evidence was not merely peripheral. It went to the central allegation of fault on the part of the first defendant and absence of fault on the part of Ms Noja.
The conclusions I have reached seriously call into question the credibility of the plaintiff, her husband and Ms Noja. They indicate a willingness on the part of the witnesses to tailor their evidence in a way which they believe will assist the plaintiff’s case.
The defendants have admitted that the first defendant breached her duty of care to the plaintiff. What is in contest is, for the purposes of s 45(1) of the Civil Law (Wrongs) Act 2002, whether the negligence was a necessary condition of the happening of the harm – described as “factual causation”.
The line of argument pressed by the defence is that despite the concession of very slight contact between the Citroen and the Mazda, the force of the impact, and ergo, the force transmitted to the plaintiff as a passenger in the Mazda, was so slight that it cannot have caused the harm of which the plaintiff now complains.
For the record, and consistently with my conclusion that the contact was slight, I do find that the force of the impact was slight.
It is necessary and useful to express the concept of causation in terms reflective of the onus of proof. The defence says that, having regard to what is submitted to be “the destruction of the plaintiff’s credibility” she has not discharged her onus of proving that the very slight contact between the Citroen and the Mazda caused the harm of which she complains.
The plaintiff says that she was jolted by the impact and that her left shoulder came into contact with the door of the Mazda. There was no evidence of bruising. Her first contact with her GP was some 13 days after the accident and only after she had consulted a lawyer. His clinical notes of that consultation include no record of a report that the plaintiff’s shoulder came into contact with the door. They do include the following: “DID NOT FEEL ANY PAIN RIGHT THEN BUT FELT PAIN ALONG LEFT UPPER LIMB AND PINS AND NEEDLES”. Given the context, I infer that the reference to pain in the left upper limb and pins and needles was something the doctor took as having developed later.
Against the background of my finding that the Citroen made only very slight contact with the Mazda, I reject the evidence of the plaintiff (and of Ms Noja) that she was jolted by the impact, causing her shoulder to come into contact with the car door.
A difficulty for the plaintiff, against the background of the findings I have made, is that very much of what she claims to be the harm she attributes to the accident depends upon acceptance of what she says and has told others about that harm. The observations already made about the diagnosis made by Dr Bentivoglio are but one example.
It is appropriate at this point to refer to the evidence given in the defence case by Dr Andrew McIntosh. His curriculum vitae records that he has over 25 years’ experience of academic, research and professional experience in biomechanics and ergonomics. Dr McIntosh had prepared a report dated 7 February 2019 which was received in evidence. He was made available for cross-examination at hearing.
In his report Dr McIntosh relevantly expressed the following opinions:
(a) The mechanics of the collision could not reasonably have led to the injuries of which [the plaintiff] is now complaining;
(b) Regarding the likely circumstances of the accident, no proportion of [the plaintiff’s] alleged injuries were caused by [the first defendant]; and
(c) The estimated biomechanical forces of impact in the accident are not likely to have resulted in any aggravation to [the plaintiff’s] pre-existing left shoulder condition.
He had based his opinions upon, amongst other things, a conclusion that “[t]he change in velocity of [the plaintiff’s] vehicle during the collision was minimal both laterally and longitudinally, i.e. less than a resultant of 10km/h and most likely less than 5 km/h”.
The cross-examination of Dr McIntosh was comprehensive. A number of propositions were put to him. They included a proposition that the plaintiff “has pre-disposing factors to injury including her degenerative conditions that place her in a sub-group that means the studies [that he referred to in his report] cannot bear directly on [the plaintiff’s] propensity to suffer injury even in a low speed crash”. Dr McIntosh disagreed with that proposition “[b]ecause the severity of the crash was insignificant”.
I have been referred to several authorities commenting on the use of evidence such as that given by Dr McIntosh.[4] They make the commonsense observation that such expert opinion comprises one part only of the evidence in a case and does not prevent a court from finding in favour of a plaintiff where the court otherwise accepts the testimony of the plaintiff about the sequelae of an accident.
[4] See eg Kiiver v King [2013] ACTSC 142; Grigoriadis v Sidiropoulos [2019] NSWDC 486; King v Barrie [2020] ACTSC 36.
They are not the circumstances before me. For the reasons already given, I have serious reservations about the credibility of the plaintiff. I have found that the contact between the two vehicles was only very slight. I have rejected the plaintiff’s evidence that she was jolted, causing her shoulder to come into contact with the car door.
It is against that background that the evidence of Dr McIntosh is to be considered. My finding about the very slight contact between the Citroen and the Mazda and the low level of force involved makes out his assumptions, in particular that “[t]he change in velocity of [the plaintiff’s] vehicle during the collision was minimal both laterally and longitudinally, i.e. less than a resultant of 10km/h and most likely less than 5 km/h” and that “…the severity of the crash was insignificant”.
Whilst the criticisms of the small sample size of some of the studies relied upon by Dr McIntosh are valid, as are the criticisms about the ability to identify participants with pre-existing conditions, they go to the weight to be given to his evidence and do not justify rejection of all of it.
It stands as some evidence supporting a conclusion that the application of the low level of force involved in the impact between the two vehicles is unlikely to have caused harm to the plaintiff including by way of aggravation of any pre-existing condition.
The evidence to be weighed against that has been materially weakened by my conclusion about the credibility of the plaintiff.
It is accepted that the plaintiff had a history of chronic pain pre-accident in both shoulders and her back.
Dr Bentivoglio had concluded in his written report that the plaintiff had asymptomatic degenerative changes in her shoulder joint which had been rendered symptomatic by the accident. Under cross-examination he accepted that was not the case based upon the plaintiff’s history of chronic shoulder pain.
He came to a position in cross-examination where he said “[w]ith her right shoulder I cannot implicate that in the car accident at all. Either as a consequential injury or otherwise. I think that you would have to believe that that is purely constitutional in origin, her right shoulder.”
On the question of injury to her left shoulder, Dr Bentivoglio agreed with a suggestion that he would have to know a lot more about the force of the impact and the nature of the blow to that shoulder and that those things would require more scrutiny. He accepted that, if there had been a forceful blow to the left shoulder, particularly in light of the plaintiff’s prior medical history, then he would expect immediate onset of shoulder pain.
I have already referred to that part of the clinical notes of plaintiff’s GP at the time of her first consultation with him post-accident when he records “DID NOT FEEL ANY PAIN RIGHT THEN…”
In the course of re-examination, Dr Bentivoglio was asked to give his opinion on the basis of a series of assumptions put to him by Mr Edwards. His responses need not be considered because the findings of fact I have made do not support the assumptions put.
Both Ms Noja and the plaintiff’s husband gave evidence about what they say they observed about the plaintiff after the accident. If accepted that testimony would support a conclusion that the plaintiff had suffered some harm as a result of the accident.
In the case of Ms Noja, however, against the background of the conclusion I have reached about her credibility I do not accept what she says as evidence of harm to the plaintiff caused by the accident.
In the case of the plaintiff’s husband, I have already observed that he was a difficult witness, inclined to be argumentative and also prone to tailoring his evidence in a way which he believed would support the plaintiff’s case. Again I reject what he says as evidence of harm to the plaintiff caused by the accident.
Having regard to the whole of the evidence, I am not persuaded that the plaintiff has proved that the harm of which she complains was caused by the first defendants breach of duty.
It follows that the plaintiff’s claim fails.
Quantum
For completeness, I move to the quantum of the plaintiff’s claim.
The exercise is notional, given my conclusion on liability, but necessary in any event. I set out below the assumptions I make in the assessment.
One difficulty which is presented relates to the plaintiff’s pre-existing degenerative changes.
The evidence establishes the existence of those changes. The difficulty which presents is that the evidence does not establish what would have been the likely course of those pre-existing degenerative changes in the absence of any harm caused by the accident on 29 November 2016.
In Lumley v Sainsbury [2017] ACTSC 40, Chief Justice Murrell considered claims by a plaintiff in such circumstances. There her Honour said (at [54]):
A defendant bears the evidential onus of showing that a plaintiff suffered from a pre-existing condition: Purkess v Crittenden (1965) 114 CLR 164 at 168. Where it is shown that the plaintiff did suffer from a pre-existing condition, the court is required to evaluate possibilities in order to estimate the likelihood that alleged hypothetical past events and possible future events would have occurred: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 (‘Malec’), discussed by Ipp JA (with whom Mason plaintiff agreed) in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [102]–[109] (‘Seltsam’). A proper assessment of damages requires judgement as to the consequences that may have flowed from the worsening of a pre-existing condition if the accident had not occurred: Seltsam per Ipp JA at [107].
So far as I can see, the medical evidence does not go to the question of the likely course of any deterioration in the pre-existing degenerative changes (and pre-existing chronic pain).
That is to say, there is no precise expert evidence as to the likely course which her underlying conditions would have taken in any event – that is, had the notionally assumed harm not been caused. In saying that, I have not overlooked that Dr Woods makes a reference to the possibility that “continued deterioration of the degenerative arthritis of the left shoulder” may give rise to consideration of surgical treatment and that, in his testimony, the occupational therapist Mr Mifsud recorded his understanding that degenerative conditions tend to be progressive.
Of course any evidence in the defence case about the likely course of the plaintiff’s underlying conditions would have involved the expression of opinion on a hypothetical basis. Whilst the evidence would have been hypothetical, the fact is that, in the absence of any evidence, I am unable to reach a conclusion about the course which the plaintiff’s underlying conditions would have taken in any event. It follows that there is no medical evidence to support (in the hypothetical quantum assessment being undertaken) reducing the plaintiff’s damages on the basis that her pre-existing condition would have deteriorated, and her pain and other symptoms increased, even if no (assumed) accident-related harm had occurred.[5]
[5] See also Purkess v Crittenden (1965) 114 CLR 164, 168-9 (Barwick CJ, Kitto and Taylor JJ); Seltsam Pty Limited v Ghaleb [2005] NSWCA 208, [109] (Ipp JA).
Having made those observations, I record that they are of only minor consequence given my conclusion (for the purposes of the notional quantum assessment) that any harm and consequences persisted for a period of no more than 12 months post-accident.
My notional assessment of quantum is carried out on the hypothetical basis that:
(a) I accept that some harm (notionally assumed harm) was suffered by the plaintiff and was caused by the accident.
(b) I accept the evidence (including from the plaintiff herself) that she suffered from the pre-existing conditions referred to in the medical evidence (including pre-existing degenerative changes to her left shoulder) along with chronic pain (including in her left shoulder) for some years before the accident.
(c) I find that, had the notionally assumed harm not been caused, her pre-existing degenerative changes and chronic pain would have continued at the same pre-accident level indefinitely.
(d) I find that the notionally assumed harm comprises aggravation of pre-existing degenerative changes to her left shoulder only.
(e) I find that the plaintiff suffered some modest degree of increased pain and discomfort and loss of amenity as a result of the notionally assumed harm.
(f) I accept the evidence of Dr Woods that any effects would have been temporary.
(g) I find that she had ceased to suffer any degree of increased pain and discomfort and loss of amenity beyond that caused by her pre-existing degenerative changes within 12 months of the accident.
(h) I find that before the accident, Ms Noja (who lived at the plaintiff’s house) performed some household chores, did some cooking and assisted the plaintiff with some other household chores and assisted her to travel to medical appointments.
(i) I find that for a period of 12 months after the accident, Ms Noja provided limited additional unpaid domestic assistance to the plaintiff by way of helping her to bathe and dress, performing some limited types of household chores to a greater extent than she had previously done and assisted the plaintiff to travel to additional medical appointments. I find that the additional unpaid domestic assistance attributable to the notionally assumed harm amounted to two hours per week.
(j) I find that the plaintiff required domestic assistance to the extent of two hours per week as a result of her pre-existing conditions.
(k) I find that, but for the notionally assumed harm, her requirement for domestic assistance at that level would have continued indefinitely.
(l) I find that, as a result of the notionally assumed harm, her need for domestic assistance increased by one hour per week for a period of 12 months. (In making that assessment I take into account that the increased need for domestic assistance for the household as a whole was attributable in part to increased need by Ms Noja.)
(m) I find that the plaintiff is unlikely to undergo surgery to her left shoulder in the future.
(n) I find that the notionally assumed harm resulted in the plaintiff incurring out of pocket expenses for a period of 12 months after the accident.
Against the background of the above I assess damages as follows:
General damages, including pain and suffering and loss of amenity $20,000.00 Interest on general damages (wholly past at 4%, symptoms resolved within 12 months) $2,800.00 Out of pocket expenses for first 12 months following accident $1923.25 Interest on $324.20 of the above at schedule 2 rate $75.00 Additional paid domestic assistance for 12 months post-accident at 2 hours per week for 52 weeks at $40 per hour $4160.00 Interest on the above at schedule 2 rate $56.00 Past Griffiths and Kerkemeyer component (1 hour per week for 52 weeks at $40 per hour) $2080.00 Interest of past Griffiths and Kerkemeyer component at schedule 2 rate $28.00 Total notional quantum assessment: $31,122.25
To give effect to my findings on liability, I give judgment for the defendants against the plaintiff.
I heard no argument as to costs. In the circumstances I make the following orders:
(a)the plaintiff is to pay the defendants’ costs; but
(b)order (a) does not take effect if either party contacts my Associate within 14 days to re-list the matter to seek some other costs order.
| I certify that the preceding one hundred and sixty-one [161] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Morrison Associate: Samuel Cass Date: 20 May 2021 |
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