David Luis Montgomerie v Michelle Scott
[2011] NSWDC 154
•22 July 2011
District Court
New South Wales
Medium Neutral Citation: David Luis Montgomerie v Michelle Scott [2011] NSWDC 154 Hearing dates: 30, 31/05/2011; 1, 2, 3/06/2011; 10/06/2011 Decision date: 22 July 2011 Jurisdiction: Civil Before: Norrish QC Decision: Verdict and judgment for the plaintiff in the sum of $1,372,486.27 plus interest of $35,261.00 being the total sum of $1,407,747.27.
The defendant is to pay the plaintiff's costs on the "ordinary basis" up and including 17 November 2010, on an indemnity basis from 18 November 2010 to the date.
Catchwords: Negligence, damages, 'non-economic' loss, future economic loss. Legislation Cited: Motor Accidents Compensation Act 1999
Motor Accidents Compensation (Determination of Loss) Order 2010
Uniform Civil Procedure Rules (2005)Cases Cited: Rabay v Bristow [2005] NSWCA 199
Magnou v AWTA Ltd [2007] NSWCA 35
Kallouf v Middis [2008] NSWCA 61
Donald v McKeown [2004] NSWCA 285
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Norris v Blake [No 2] (1997) 41 NSWLR 49
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
R v Tang (2006) 161 A Crim R 377
F v The Queen (1995) 83 A Crim R 502
Penrith City Council v Parkes [2004] NSWCA 201
Nominal Defendant v Lane [2004] NSWCA 405
Magnou v AWTA Ltd [2007] NSWCA 357Texts Cited: Freckleton, Selby Expert Evidence Thomson Law Book Company
A History of Psychiatry John Wiley & Dons Inc 1997
Dr J Sydney Smith Brain damage - Medico-legal Aspects Blacktown PressCategory: Principal judgment Parties: David Luis Montgomerie - Plaintiff
Michelle Scott - DefendantRepresentation: Mr D Campbell SC/Mr D Toomey - Plaintiff
Mr Rewell SC - Defendant
Campbell Paton & Taylor - Plaintiff
Moray & Agnew - Defendant
File Number(s): 2008/321859
Judgment
Introduction
The plaintiff sues the defendant pursuant to the provisions of the Motor Accidents Compensation Act 1999 (MACA). He pleads that at approximately 6.20pm on 21 March 2005, whilst he was a rear seat passenger in a stationary Honda Accord, registration number WOB 966 (NSW), parked off the breakdown lane, wholly outside the two southbound lanes comprising the Hume Highway, a Toyota Land cruiser Prado vehicle, registration number AGS 76B, itself travelling in a southerly direction on the Hume Highway, collided with the rear end of the plaintiff's vehicle. The plaintiff alleges that the defendant was negligent and particularises that negligence, and also particularises claims for past economic loss, future economic loss and other related matters. Particulars of the claims I will refer to later when I have the opportunity to properly deal with the issue of damages.
The defendant briefly pleads an admission of factual matters pleaded in paras 1 to 6 of the statement of claim, but denies that the defendant was negligent and does not admit the details of injuries particularised. It further pleads that if the plaintiff did suffer injury, loss and damage, as alleged, that the same occurred as a result of "an inevitable accident; being brake failure".
The plaintiff has complied, for the purposes of the proceedings, with all the relevant requirements of MACA. At the outset of the proceedings, past out of pocket medical and other expenses were agreed at $199,414.47. In the hearing of the matter at Orange, towards the end of the proceedings, in fact on the last day we sat at Orange, the future out of pocket expenses were agreed at $200,000, should the defendant be found negligent and liable. The exhibits in this matter are annexed to the judgment as annexure A (not reproduced).
The plaintiff gave evidence that by reason of his injuries he has no memory of the accident, and no issue has been taken with that. No issue of contributory negligence or fault on the part of the defendant contributing to the motor vehicle accident is alleged. On the issue of liability, Sophie Jaggard, the driver of the plaintiff's car, gave evidence. Another passenger, Sybil Trebeck, was available, but not required to give evidence, or be cross-examined by the defendant. The defendant gave evidence, as did her husband. Most of the oral evidence in the case given by the plaintiff was in respect of matters related to non economic and economic loss and the effect upon him of his injuries. The plaintiff's mother also gave evidence in relation to matters concerned with those issues, in other words, the sequelae of the motor vehicle accident and the condition of her son before the accident occurred.
Given that the claim is made pursuant to MACA the plaintiff must satisfy s 131 of the act to justify an award of damage. The defendant has previously admitted that the plaintiff exceeded the ten per cent threshold for an award of damages for non economic loss. Having regard to the pleadings, and the evidence of the plaintiff and his mother, as well as other evidence in the trial, and also having regard to the way the matter has been conducted in cross examination and submissions, it is quite clear that there are four essential issues that the Court has to address. Was the defendant negligent as particularised? If so, I am required to determine the issue of non economic loss, the issue of past economic loss and that of 'future economic loss'. Having regard to the evidence relating to the plaintiff's educational achievements and his future prospects, as well as matters in relation to the interruption of his academic career and his work career by his injuries caused by the motor vehicle accident.
Putting aside liability for the moment, the critical issues relation to past and future economic loss are to some extent tied up with the assessment of non economic loss, and include matters such as the extent to which the plaintiff suffers intellectual and/or cognitive deficits as a consequence of the motor vehicle accidents, the cause of these deficits, the character of his physical disabilities, and whether these are matters, individually or combined, impacted upon his education, his employment, his career opportunities and prospects past and future and his enjoyment of life, having regard to his pre accident capabilities.
Putting aside matters relating to complaints about headaches, neck pain and back pain, and putting aside the very significant injuries the plaintiff suffered to his jaw and teeth and skull, the real issues in terms of assessment of his past and continuing disabilities were, as I understood the submissions, were whether it was probable that intellectual and/or cognitive deficits, such as lack of memory or poor memory, lack of or poor concentration and diminished intellectual capacity in various ways, were related to his physical injuries caused by the accident, or had their foundation in psychological causes.
The other issue that arises out of this includes considering whether the consequences of the motor vehicle accident will remain the same, deteriorate or gradually improve over the short, medium or long term. Another issue is whether injuries and disabilities complained of would be amenable over the short to medium term to psychotherapy and other treatment. I will deal with these issues in greater depth when I deal with the issue of damages at a later time.
Particulars of Negligence
The particulars pleaded by the plaintiff are as follows:
(a) failing to keep any or a proper lookout;
(b) failing to stop, slow down, swerve or otherwise avoid a collision;
(c) failing to have regard to the presence of motor vehicle registered number WDB.966 (NSW) located alongside the highway;
(d) driving in a manner which was inappropriate in the circumstances;
(e) driving at an excessive speed;
(f) failing to have regard to the prevailing weather conditions;
(g) driving in a manner which was inappropriate in the prevailing weather conditions;
(h) driving at a speed which was inappropriate in the prevailing weather conditions;
(j) failing to travel at a safe distance behind other motor vehicles which were travelling in a generally southerly direction upon the Hume Highway;
(k) failing to steer motor vehicle registered number AGS.76B (NSW) so as to avoid a collision.
Legal Principles on the Issue of Liability
There are no complex principles at play in relation to most of the issues that are required to be resolved in respect of this claim. There is no doubt that the defendant owed a duty of care to the plaintiff, amongst others, in her control of a motor vehicle on a public highway. There is no doubt that if she breached that duty of care, damage to the plaintiff was occasioned by her. The critical issue in relation to liability is whether the defendant was in breach of her duty of care to the plaintiff. No issue has been taken by the defendant that any of the particulars pleaded, if established to the requisite degree, constitutes a relevant breach or duty of care. In this matter the defendant submitted, amongst other matters, that what was required to be established was the breach of a standard of reasonableness founded upon a consideration for care that would be observed by a prudent and reasonable person in the circumstances under consideration.
It is not sufficient to establish a breach of duty has occurred if the defendant did something in an emergency which, if she had the opportunity for consideration, she would not have done and which when done caused a collision, if her act was what an ordinary prudent person would have done in the circumstances. In other words, as the defendant has correctly submitted, the matter is not to be judged with the 'wisdom of hindsight'.
The defendant has pleaded 'inevitable accident'. While there is an evidentiary onus upon the defendant that the issue be available for consideration, and clearly that onus has been discharged because of the evidence of the defendant to some extent, that matter has to be considered in the context that it is for the plaintiff to establish on balance that the defendant was negligent in one or more of the manners particularised and that the conduct of the defendant was not a result of inevitable accident. Noting the defendant's pleadings, where the defendant found herself in a situation causing damage to the plaintiff that she has brought about by her own actions either deliberately or through failure to act reasonably, or exercise reasonable foresight, this conduct cannot be categorised "an inevitable accident". In these circumstances the defendant may be in breach of her duty of care.
All existing circumstances present at the time must be considered as established from the evidence. Many factors are to be taken into account in relation to this matter including the conduct of other road users, the weather conditions, the lighting, the road surface conditions, the speed of the defendant's motor vehicle, the presence or otherwise of mechanical defect, reasonable alternatives that were open to the defendant at relevant times that, if followed, could have avoided the subsequent collision and other matters.
Defendant's Submissions on Liability
In relation to the issue of liability the general principle was put on behalf of the defendant that the defendant was required to comply with the standard of care of a prudent driver ( Hawthorne v Hillcoat [2008] NSWCA 240). Summarizing the submissions, it was conceded in submission by the defendant's senior counsel that the conditions were "very poor", it was raining "quite heavily", visibility was "quite poor", conditions were "very adverse". It was submitted however that the defendant's truthfulness was not in doubt and that the Court should accept her version of events and also accept that she could not have done anything different. It was put that all the matters that were raised with her, as to what she could have done, in cross examination, were matters to be judged "with the benefit of hindsight".
Plaintiff's Submissions on Liability
The plaintiff's senior counsel submitted that it is clear that contributing factors to the collision were speed, failing to keep a proper lookout, failing to take reasonable steps to overcome an obvious defect and other matters. It was submitted that the frantic attempts on the part of the defendant to avoid collision with other vehicles were a result of serious mistakes made earlier and this was not an 'inevitable accident'. It was submitted that the defendant was trying to explain away the accident and she sought to minimise the conditions and her account of what happened ignores the physical fact that, putting aside that she was not obliged to travel in one lane all the way along the road from where her brakes failed, there was a breakdown lane into which she could move and a lane to the right which reasonably she could move to as well. By reference to the particulars of negligence earlier outlined the plaintiff relied upon particularly (a) - (f), (h), (j).
Consideration of the Evidence on the Issue of Liability
The plaintiff has no recollection of the motor vehicle impact that injured him, in fact no recollection of several days beforehand. The evidence concerning the circumstances of the impact in the plaintiff's case primarily came from Ms Jaggard, the driver of the car in which the plaintiff was a passenger, as well as the defendant Michelle Scott. Ms Jaggard was an impressive witness who was extremely careful in her description of relevant events. She drove a motor vehicle on this day which belonged to her father. She gave evidence that immediately before the impact the plaintiff was a passenger sitting in the rear driver's seat and Sybil Trebeck was sitting in the front passenger seat. They were driving back to the Australian National University in Canberra and at a point, that I would understand from the video evidence to be less than fifteen kilometres north of Goulburn, because of heavy rain she not only slowed her motor vehicle down to a speed well below that of the speed limit, but ultimately drove onto the side of the road, at least within the breakdown lane itself. This is seen clearly in the photograph and video evidence. She was probably straddling in part the grass verge further to the left of the breakdown lane.
I accept her evidence that the rain at the time she slowed down was very heavy. In fact it was so heavy and the conditions so bad that she, although an inexperienced driver, felt she could no longer safely drive. I accept her evidence that at the point that she drove over to the side of the road she had seen two vehicles in the minutes beforehand pulled over to the side of the road. Although, the evidence does not establish whether those vehicles were pulled over at the time the defendant came into collision with the vehicle in which the plaintiff was passenger some minutes later. There is no evidence, as I understood it, from the defendant of observing other cars on the side of the road. It is possible that they had moved on before she drove past where they were parked.
After Ms Jaggard initially pulled over, the wash from a passing heavy vehicle hit her car and, on the suggestion ironically of the plaintiff, she moved further over to the left. That is further away from the breakdown lane. As I have said I have seen a video of this section of road recorded relatively recently and photographs of the area that have been marked by Ms Jaggard in evidence. She marked the photographs with the two positions at which the car was stationary as well as the position she believed the vehicle came to after impact. Of course these markings are only approximates, but there was no suggestion that she was in any major error and there is no doubt that her general description of the location of her vehicle at relevant times is as accurate as her recollection would now allow her.
Viewing the video and the photographs also enabled the Court to see the topography of the road to some extent and the relationship of the area where Ms Jaggard's car was parked to the two southbound lanes upon which traffic was travelling past her car, as well as the character of the southbound lanes. The breakdown lane or grass verges for a distance for a kilometre or more before the place of impact are shown in the video evidence. I accept Ms Jaggard's evidence that, apart from the wash from the passing heavy vehicle and the observations she made of the vehicles slowing down prior to pulling over to the side of the road, as well as the cars parked on the side of the road, she did not pay particular attention to vehicle passing by her vehicle in the southbound lanes during the time that she was stationary.
Having regard to the evidence of Ms Jaggard and the evidence that emerged from the cross examination of the defendant, I am satisfied that Ms Jaggard's car headlights were on, as were the rear lights and that she had her foot on the brake at the time of impact and that thus her brake lights were illuminated. Visibility at that time was poor, primarily because of the weather conditions. There would have been ample natural light in ordinary circumstances. The impact occurred at 6.20pm on a day prior to the end of daylight saving for that year and prior to what ordinarily would have been sunset in the Goulburn area at that time. The evidence of the defendant establishes that although visibility was poor for her, at a distance of up to a kilometre she could see the brake lights of another vehicle in front of hers and shortly afterwards saw it's headlights in the sense, that she could see that it's rear lights were operating.
The presence of Ms Jaggard's car on the side of the road ought to have been clearly observable to a person keeping a proper lookout at relevant times, even in these conditions, for at least a distance of a couple of hundred metres, but probably subject to the rise and fall of the road, a minimum of half a kilometre. There are some inclines shown in the video recording of the roadway up to the point of impact. The car of Ms Jaggard was on a downward incline on an area of roadway which, up to that point, had been relatively straight before it commenced the incline down to a depression or dip that leads finally upwards to the Towrang turnoff. Behind the point of impact, heading south, the road goes further downhill.
The defendant conceded that as she was driving there was no obstruction to her vision by reason of the presence of another vehicle on the roadway, or any other impediment to the roadway ahead or in the breakdown lane, other than such interference to her view by the inclement weather conditions.
Ms Jaggard's estimated her motor vehicle was pushed by the defendant's vehicle up to seventy metres from the point of impact. Other estimates recorded by the police put the distance at about fifty metres. The defendant's motor vehicle was a Toyota Landcruiser Prado, a 1999 model. I am satisfied the defendant was very familiar with the vehicle. It was leased by her schoolteacher husband, who also gave evidence as I said, and the couple used the vehicle jointly to travel up to 200,000 kilometres in varying conditions in that vehicle, including country conditions. The motor vehicle was leased under a government salary sacrifice scheme. Thus, it was fully insured and could be maintained at the cost of the lessor.
The couple lived in a village called Bogan Gate, which is just over thirty kilometres west of Parkes. Mr Scott was the Principal of the local school. She was an experienced driver in country roads. She did not claim any ignorance of this section of the road, although that is of no real moment. The roadway itself is a reasonably high quality dual carriageway highway with a 110 kilometres per hour speed limit, clearly marked, with a discrete breakdown lane, clearly marked prior to the point of impact, with a further grass runoff alongside the carriageway at various points, perhaps continuously, for at least a kilometre before the point of impact.
The defendant gave evidence of her movements travelling from Campbelltown to Homebush and back to Campbelltown; she then travelled down the Hume Highway southwards to the point of impact. She had four children of varying ages in the motor vehicle, and I accept that she was not fatigued, and there is no suggestion of her being affected by drugs or alcohol. She was, as with Ms Jaggard, struck by unsettled weather before eventually, south of Marulan, she met heavy rain. I accept that in the relevant area, where both the defendant's car had travelled immediately prior to stopping, and which the defendant drove along before the impact, that there was water on the road from the rain draining away, described by Ms Jaggard as not so much pools of water, but like a film of water on the road. Whether there were particular potholes or depressions in the road that had pools of water that are relevant to this impact I cannot conclude. However, of course, Ms Jaggard spoke of being struck by the "wash" of a heavy vehicle, suggesting ample water on the roadway in order for that to happen.
There is no doubt that the conditions when the defendant was driving towards the scene of the impact had deteriorated in her own view. She had reduced the speed of her vehicle at an earlier time, much further back. She put it on cruise control at 100 kilometres per hour firstly, and then at a distance not precisely known from the point of impact, but more than a kilometre from it, she observed a motor vehicle with its headlights on, approximately a kilometre in front her, that occasionally exhibited the brake lights. She disengaged the cruise control, dropping to a speed of 80 ks per hour. The defendant's description of the brake lights coming on and off, when asked to particularise, was that up until the time that she was approximately thirty metres behind the vehicle in front of her car, the brake lights were more often off than on, but when she was approximately thirty metres from the vehicle, the brake lights were more often on than off. What is apparent on her own version is that in the time between first seeing the vehicle in front of her, and what was ultimately a "last ditch" attempt to avoid impact with that vehicle, no other vehicle crossed over from the right hand lane into the left hand lane to obstruct her view of that vehicle.
The defendant gave evidence that the light was poor, in fact 'very dark', that 200 metres away from the car in front of her, on this near side or left hand lane, she could see the lights braking on and off but could not see the car itself. Given ample natural light in clear conditions, it is obviously that the rain and/or associated spray from the road, perhaps made by other cars or perhaps from falling rain, made conditions for road vision very hazardous. In what I am satisfied was heavy rain over a number of minutes before the impact, greater caution was being exercised by prudent drivers, as exhibited by Ms Jaggard who, as I said earlier, was forced to leave the road completely. It also was exhibited in the conduct of the vehicle in front of Mrs Scott, not to mention those drivers who had previously pulled over to the side of the road.
Mrs Scott's report to her husband shortly after the collision, and to the police officer, Inspector Dombroski, who she spoke to at the hospital some time after the collision, was that the brakes failed or "did not work", at the time of collision. I will deal with that evidence later. It has particular legal significance in this case. She said that when she applied the brakes at a point approximately 500 metres behind the vehicle in the same lane, the brake pedal went "straight to the floor". She endeavoured to engage the brake a number of times, pumping those brakes. I am satisfied, even if the brakes did not work because of mechanical defect, that half a kilometre or slightly short of half a kilometre behind the motor vehicle in front of her, but a greater distance from the point of impact she was fully aware that her brakes did not work.
I am satisfied on the basis of the defendant's own evidence that she did not at that time consider options such as engaging the gears to reduce the speed of the vehicle, although she had disabled the cruise control either by flicking the relevant switch or putting her foot on the brake, which would automatically disengage the cruise control. At the point when she discovered the brakes did not work she asserted her car was travelling at about eighty kilometres per hour, or was reducing quickly to that speed.
It should be noted that this particular cruise control, as I understood her evidence, could be disengaged as most cruise control mechanisms are, by simply changing gears. The defendant was aware of the fact from her experience as a driver of over twenty years, that changing gears down from fifth gear, for example, which was the gear as I understand it at the time of impact, the speed of the vehicle could be reduced. The evidence established clearly on her own version that the defendant had ample opportunities, in terms of time, to change the gears down before impact.
I note the submission that she could have done certain things with the benefit of hindsight. But I accept that is not the test. It is to be observed that when it was suggested to her that she could have changed down the gears, she could have otherwise put a blinker on in order to signal her wish to move into the right lane, she seemed somewhat surprised, in fact fazed by those suggestions. It was quite clear that in her reflection upon what had happened, not only had she done any of these things, but doing these things had never occurred to her at anytime.
Of course, whether something may or may not have occurred to her, as I said, with the wisdom of hindsight, is of no assistance in determining her liability. The reason I conclude, however, these options did not occur to her, in combination with other aspects of the matters to which I have referred and will refer, is that the alternatives to simply rolling along the road with her foot off the accelerator, even pumping the brake, only arose in such a short period of time before the impact that they were not realistic options to avoid collision either with the car in front of her, or one parked outside the breakdown lane. Otherwise the reasonable driver would have had ample time to avoid the collision. The reasonably prudent options available, given the time that she had to act after the known failure of her brakes on her version, were options that were not considered.
The defendant volunteered, on a calculation she had obviously made before the proceedings that she had 'twenty two seconds' to react before she came up to the car in front of her. This is assuming, first of all, an initial distance of a kilometre at which she first saw the car in her lane, assuming she tried to engage the brakes approximately half a kilometre behind that car and assuming a speed of eighty kilometres per hour. This calculation of the defendant was very revealing. It showed that she had applied her mind to the time it took for relevant events to occur. The problem was that the calculation was based upon an entirely false assumption. The calculations she made had cogency only if the car in front of her was stationary. She was approaching, on her own version, at a constant speed of eighty kilometres per hour. The car in front of her, however, on her version was moving forward at an unknown speed. She was unable to estimate the distance over which she travelled from the time she first saw the car with the brake lights to the point where she swerved to avoid a collision with it, to eventually collide with the stationary motor vehicle in which the plaintiff was a passenger.
I do not propose to undertake a speculative calculation. But on her calculation of distance travelled, her estimated speed up to impact of eighty kilometres per hour, and noting a moving car in front of her, I can conclude with confidence that the defendant had more than twenty-two seconds, in fact probably considerably more than twenty-two seconds even assuming the car in front was travelling at only 40 kms per hour, to take evasive action. This is in the context of her account of driving a motor vehicle with brakes that did not work, bearing down on a car that was still moving on a major highway, albeit applying its brakes intermittently, up until she was approximately about thirty metres from it.
There are a number of troubling aspects of the defendant's evidence. She gave evidence, for example, that realising a difficulty approaching the car in front of her without brakes, she tried to move over to the right hand lane. As I said, she had no memory of putting on a right hand blinker at any point prior to impact. I cannot conclude that she did so. She, on her own version, made no attempt to nudge into the right hand lane at the time she realised that her brakes failed. Her explanation was that she was checking her rear vision mirror at various times to try and see if there was a break in the traffic once she realised her brakes did not work. I cannot accept that there was a continuous line of traffic, be it heavy vehicles, cars or any other vehicles, that prevented her changing lanes over a distance greater than the 500 metres, she must have travelled from the time she realised, on her version, that her brakes did not work, up until the time that she took the drastic action that she did to avoid collision with a motor vehicle travelling in front of her and which she had known for some period of time was travelling slower than her vehicle. It is improbable in the conditions that a continuous line of traffic over at least a couple of hundred metres long would be travelling faster than her for the length of time that she ought to have had to change lanes.
Again I return to her evidence that the car in front was going forward. Her brakes failed approximately 500 metres from that vehicle and in order to make up the difference between her position and that car she would have had to travel the five hundred metres, or slightly less, plus an extra distance covered by the car in front of her. In these circumstances as she herself described them, her evidence is that at a point that she estimated to be approximately three metres behind the car that was immediately in front of her, with its brakes more frequently flashing from the time that she was approximately thirty metres behind it, unable to move into the right hand lane, she veered to the left clearly to avoid a rear impact with the motor vehicle proceeding in front her to collide with the car in which the plaintiff was a passenger. This account speaks of a panicked reaction. Obviously she had not looked in the direction of the breakdown lane beforehand.
It is overwhelmingly established that the motor vehicle in which the plaintiff was a passenger would have been in view of the defendant had she kept a proper lookout. In fact, it should have been within view for at least a couple of hundred metres beforehand. She did not see that vehicle, it would seem, until impact was about to occur. She applied her horn, she said, as impact was about to occur. Assuming this was true, this was a last act of hopeless desperation. She gave no credible explanation for not seeing the plaintiff's vehicle on the side of the road. The weather conditions and the nature of the light would not have prevented her from seeing the plaintiff's car given the period of time and distance over which she could see the car in front of her with its brake lights flashing.
Learned Senior Counsel for the defendant suggested to that reject her account I would have to conclude she was "liar" or "quite deliberately lying". However, the vice in that submission was revealed when he also submitted that I could not accept as literal estimates of three metres behind the car in front of her and seeing the plaintiff's when she was one to two metres away. If these estimates are hyperbole on the part of the defendant, or glosses created by the urgency of the moment, and I can understand that clearly this claim could be properly made, that likewise there were 'glosses' in respect of evidence she gave about the circumstances of trying to change lanes and other aspects of her account.
The fact of the matter is that the defendant was approaching at a greater speed upon a car that was moving forward in poor conditions and that the distance over which she knew she had no brakes, so far as she was concerned, was more than sufficient for her to take action to move either into the right hand lane or into the breakdown lane in order to roll to a stop unobstructed and stop well before she had to take dramatic evasive action. Even assuming that she thought the brakes did not work over the distance she travelled from the time the pedal went "to the floor" her vehicle could have been considerably reduced by changes of gear that would not have deprived her of control of the vehicle. Even without changes of gear, one would have thought, by the effect of friction, even on a wet road, given the gentle undulations up to the point before the incline led to the collision, there ought to have been greater reduction of speed than to a constant 80 kms per hour.
I do not accept her evidence, however, that she would have maintained a constant speed of 80 kilometres per hour over a distance of 500 metres or more in all the circumstances. The distance over which she must have travelled was not entirely downhill and in any event immediately before the impact the incline is not that sharp. If the defendant had moved her foot from the accelerator as she claims and not maintained acceleration, irrespective of whether her brakes worked or not, the vehicle could not have maintained the same speed over a distance of half a kilometre or more. Unless, of course, it was aquaplaning for the entire distance (in which case brakes would not help) or the water conditions on the roadway were so bad that there was no friction preventing the car losing speed. These are matters that are just commonsense. Without the aid of the accelerator mere friction ordinarily would serve to reduce the speed of the car to some extent as it moved forward. There was no evidence of any reduction of speed once the car had its cruise control deactivated and it dropped down to the speed of eighty kilometres per hour.
The impact was violent, and on the defendant's account, unexpected. The defendant, of course, cannot exclude some loss of consciousness, but claims no retrograde amnesia. I accept that she rang her husband after the event, perhaps within a number of minutes after she had been pulled from the wreckage and her children, or the children with her had been pulled out, and she told in a conversation that the brakes "did not work". They both gave evidence of this, but this is not a definitive assertion of mechanical failure in its terms. I accept that later at the hospital the defendant told the police officer, Inspector Dombroski, that the brakes "did not work", that she had pumped them and they had not operated. When she had given this more detailed description to the police officer she was aware that the collision had wrecked the car she was driving, it had, effectively wrecked the car that it hit, it had caused some injury and distress to herself and her passengers to varying degrees and she knew that the plaintiff was seriously injured.
I point out that there was no evidence of any prior mechanical defect that would explain the brakes not working in the manner described by the defendant. There is no evidence that if the brakes on this type of motor vehicle in circumstances do not engage one can physically push the brakes to the floor and then that the brake pedal could be pumped. Nor is there any explanation as to why the brakes would not work. No police investigation was undertaken of the vehicle which, of course, is no fault of the defendant. The motor vehicle was mechanically sound. It was regularly serviced. The brake pads had been replaced in May 2004, about the time it was registered and the car had received a full 200,000 kilometre service in January undertaken by, what I understand be, an authorised dealer. There was absolutely no forewarning, according to the defendant or her husband, of any brake deficiency or any other mechanical problem with the car.
I am satisfied on the balance of probabilities that the defendant did endeavour to engage her brake to avoid collision with the vehicle travelling in the same lane in the same direction in order to get her vehicle to slow down or avoid collision. Whether there was mechanical failure of a catastrophic type, as she would describe, or because the brakes simply did not engage because of the wet conditions on the road I cannot decide. They are the only other available alternative explanations. However, the first explanation, notwithstanding the claim by the defendant that the brake pedal went to the floor, appears the least likely given the evidence of the pre-existing mechanical condition of the car, the absence of any warning of any difficulty with the brakes, the absence of any evidence to explain such a catastrophic failure without warning and other matters. She gave no evidence of any panel lighter on her dashboard indicating any problem. Whatever alternative explanation available for brake failure does not explain the collision by a reasonable prudent driver. Neither does any other explanation offered by the defendant.
I am not satisfied, on her own account, that the defendant did all she could to avoid impact with the vehicle that was immediately in front of her. As I have pointed out, she had a number of alternatives. I do not accept her evidence that she could not move to the right lane, unless, of course, she made that decision at the very last second, not over the period of time that she claimed that she did. It is, in my view, in the context of her manner of her giving evidence and other aspects of her evidence, a feature of her evidence that it contains elements of what I would describe as ex post facto reconstruction. Particularly, as I said, the claim that she endeavoured to get into the right hand lane. Her failure to get into the right hand lane from the time she realised she might collide with the car moving in front of her can only be explained by that choice being made by her far too late, not at a more prudent distance from that slower vehicle. There can be no doubt that she did not keep a proper lookout for vehicles in the breakdown lane. Her failure to see Ms Jaggard's vehicle until the very last second(s) is totally inexplicable, unless of course she did not keep a proper lookout.
She also failed to properly control the motor vehicle. If she believed she had a mechanical defect, she could have taken evasive action, or steps, that could prevent collision with any other vehicle on the road, having ample opportunity to do so given the distance between her and the car immediately in front of her. She, of course, was driving a larger vehicle than the car that was travelling immediately in front of her. I appreciate, as a factor to be taken into account, that a large four-wheel drive such as this may conduct itself in a manner that is very different from a smaller sedan. But of course these larger vehicles require careful handling, if only because of their greater bulk and thus their greater momentum. On her account the car in front of her in the left lane could not have obstructed her view of anything else on the road because it was smaller than her car, and of course a person sitting in such a vehicle sits higher on the road than a person driving a sedan.
On her own account she was driving at an excessive speed for the conditions. This is reflected by the conduct of Ms Jaggard, the conduct of the car in front of the defendant's car, her own account of the conditions, given the time of day and the rain and the character of visibility. The fact that other motor vehicles may have been travelling faster than her vehicle is really beside the point in making an assessment of whether her driving was appropriate for the conditions that she faced. Of course I accept as a general rule, as was submitted by learned senior counsel for the defendant, that she ordinarily is a responsible person. She had the responsibility of driving her own child or children and another child or children in her car. However, her own evidence establishes that she made a number of errors of judgment which defy any rational explanation.
I turn to the hearsay representations made by the defendant after the event to her husband and a police officer who spoke to the hospital. This evidence requires particular examination in light of the importance placed upon it by learned Senior Counsel for the defendant. In her evidence in chief she did not give evidence of speaking to her husband after she got out of the wreck of the car whilst waiting to be transported to Goulburn Hospital. When her husband was called to give evidence that the motor was in serviceable condition, there was no forewarning of catastrophic brake failure and other related matters, Senior Counsel for the defendant sought to lead evidence from him of a conversation he said had occurred when he believed his wife was on the roadside near the scene of the accident. Of course, Mr Scott was not at the scene. However, I accept, as I must, that the two must have spoken shortly afterwards. With mobile phones nowadays, or even in 2005, immediate contact with a loved one in such circumstances is far easier than it would have been in years past.
Objection was taken by senior counsel for the plaintiff to this evidence for, amongst other reasons, on the basis that the witness from whom the representation was received was available to give evidence and had not given evidence of any relevant representation or representations. To my mind this objection was a purely procedural one. It did not affect the admissibility in any event, assuming there were relevant representations to be given. Any evidence from the defendant about things she said about the incident within a reasonable period of time after the incident was receivable for hearsay purposes as "an admission" even if the "admission" was self-serving. Any evidence from the husband concerning representations made to him by a witness available were relevantly admissible under s 64 Evidence Act 1995.
The defendant was recalled, her husband was stood down, and her evidence largely accords with the subsequent evidence of her husband. It is untainted by any suggestion of concoction. I have no doubt in this respect they are both telling the truth. Naturally the conversation was concerned about how she was and how the children were. It is important to note, however, that her evidence of her representation to her husband was that she had had an accident and that "the brakes did not work". His evidence is essentially the same, that she said that she had run into the back of a car and that "the brakes did not work". I put these words in quotes as the 'effect' of what was said, bearing in mind neither witness apparently had made a note of the words uttered. I am prepared to accept it reflects the essence or the spirit of the representations. The fact that the representation was made that the brakes "did not work" is receivable as evidence of the truth. However, it scarcely explains the circumstances in which the brakes did not work. It is a representation in its terms consistent with the fact that if the brakes were applied they did not work in the conditions, particularly when applied late, not just that they had failed through mechanical defect.
When the defendant was at the hospital, knowing that there was a police investigation, knowing of course that at least one person had been seriously injured (she had seen the plaintiff brought into hospital in a serious condition) the defendant told the police officer, who conducted apparently a cursory interview of which no contemporaneous notes survived, words to the effect, "Could you please check the brakes, the brakes failed." I am prepared to accept that she said these words to the police officer. I have no evidence directly of what the police officer understood the representation to be, but I also note that there is no contemporaneous record that exists to assist the defendant to remember exactly what was said.
A document prepared in September 2005, nearly six months after the accident, in 'third person' terms, summarises, in the context of a report to a police prosecutor, the recollection of the officer who spoke to her. The summary asserts:
"She stated that she has touched her brakes to release the cruise control and slow down. She has then realised that the vehicles (sic) in front of her were in fact travelling a lot slower than she originally thought, and has applied the brakes and she stated to me at Goulburn Base Hospital and again later in an interview that the brake pedal went straight to the floor, continued to pump the brakes but they did not work." (emphasis added).
Apparently, according to this report, she claimed to police that she believed that she may have chipped a bone to her right ankle in the circumstances of the collision that caused the car to flip on its side and turn in the opposite direction and force another car approximately fifty metres or more down the road. One would scarcely be able to attribute a particular event to such an injury. Be that as it may, whilst representations of the defendant to the police officer are not recorded in the first person, where no contemporaneous note exists to confirm the report's accuracy, and when the report itself follows five to six months after the event, although it may be not entirely accurate, I accept that the words as recorded by the police officer in the report represent fairly accurately the representations made by the defendant and are available for hearsay purposes. I also accept that they generally show a consistent account given at the hospital to the version given in court as to the circumstances of discovering that the brakes did not work and that the defendant had pumped the brake pedal.
Although this is evidence of the 'truth' or 'fact' of what happened, it does not make it truthful. The account given needs to be considered in context in any event. Aspects of it present a different flavour to the circumstances of the collision that presented in the evidence of the defendant. Certainly it is a more detailed version of the circumstances in which the brakes did not work than remembered by the defendant. I have considerable difficulty accepting that it represents the truth of the matter in so far as the assertion is made that the brake pedal went straight to the floor and the defendant "continued to pump the brakes." This of course is the account she gave in the hearing of the Court but in somewhat different circumstances. I asked rhetorically of counsel, "If a brake pedal went to the floor how did it re-engage to enable her to keep pumping it?" Senior counsel says, "Well brake pedals have a mechanism for that to happen." That may be so, but I ask rhetorically again if the brakes completely failed without warning, in circumstances where without explanation mechanically of how it could be possible for the brake pedal to go all the way to the floor, then is there any rational explanation available to the Court as to how the brake pedal could re-engage for her to continue to pump?
But these are to some extent matters of speculation. More importantly, the version recorded in the report prepared by the police officer has other troubling aspects. If the brakes worked to disengage the cruise control, why did they then suddenly fail? Why did she need to push the pedal to the floor in an act of desperation by a prudent driver in wet conditions when 500 metres from a slower vehicle? The version given to the police officer it must be said when closely examined, and making allowance for the fact that it is in the third person and the police officer's contemporaneous notes, if they ever existed, are no longer available, has the flavour of a recounting of a sudden event. Coming across a car going more slowly than she expected - a sudden braking in wet conditions and an inability for the brakes to work in a state of emergency. She realised the car was moving more slowly than she anticipated more suddenly than the account given in this Court.
Of course, putting aside the issue of whether the brake pedal went to the floor, this is not the account the defendant gave in Court. The defendant's account in Court in fact supports, in its own terms, some of the particulars of negligence by the plaintiff in material respects. Reflecting, as it does, a realisation of brake failure a long time before any real emergency and a failure to take what may be seen objectively as reasonable and/or prudent steps to avoid a collision.
Senior counsel for the defendant sought to assert during the argument concerning the admissibility of the representations that the police record and the husband's evidence may be seen as "corroboration" of the defendant's account. It may be support for the fact that those representations were made, but it is not corroboration of the truth of what the defendant asserted. The fact that the defendant and her husband told the truth about their phone conversation does not make her version of the collision necessarily truthful. As I said, it supports the fact that some representations were made of a similar or identical character, but that is all. The representations of which evidence has been given made to the husband are not complete and are not entirely consistent with what occurred.
Like all hearsay, the truth of what is asserted is dependent upon the truthfulness, reliability and accuracy of the maker of the relevant representation or representations. The defendant has endeavoured in two different ways to put a gloss upon what happened to explain the inexplicable in her mind. This being, how she could lose control of a vehicle, travelling at a particular speed in the conditions, and strike the back of a stationary car that she did not see until after her decision to veer from the breakdown lane.
I am satisfied comfortably on the balance of probabilities that she lost control of the vehicle because her brakes were not engaged or could not be engaged for whatever reason and she swerved into the breakdown lane to avoid a collision with a motor vehicle fast coming towards her, as she told the police officer in the summarised version set out in exhibit 3. I am satisfied comfortably on the balance of probabilities that she lost control of the motor vehicle in circumstances where she clearly was not driving safely in the conditions. Further, she failed to take a number of opportunities that were available to her to avoid the collision in the ways that I have outlined. As I have said, the circumstances in which she swerved to hit the plaintiff's motor vehicle without seeing it, arose suddenly because the emergency that she realised occurred had happened far more suddenly than she is now prepared to admit.
I have already dealt with the issue of whether she is deliberately lying. I do not have to make a finding in relation to that; to make such a finding in all material respects would be reckless in any event. But there are many reasons not to accept the version of the defendant and to conclude that she has coloured a version in her evidence in this Court. If one were seeking to identify a purpose - although no purpose was put to her - it may be to reconstruct events that she cannot explain or cannot precisely remember. The other purpose may be to assuage her concern about her responsibility for her conduct. Of course, on the surface, the defendant appeared to be a decent person of otherwise good character. I have already indicated I accept she has a background of very careful driving and is an experienced driver. However, I have also pointed out that the options she claimed that she had to avoid collision with the car in front of her as the only options, all speak of last second or 'last minute' decision making in circumstances, as I said earlier, where she had ample time to confront the fact that she was, on her version, without brakes.
Some of the hallmarks of the unreliability of her evidence include the fact that she sought to down play the conditions in her evidence immediately before the accident, preferring to describe the rain falling as "steady" rather than "heavy" as it was described by Ms Jaggard. The defendant did not embrace the idea of water on the road or pools, or otherwise. The fact that Ms Jaggard's car was washed with water, only a very short distance from the point of impact, a matter of metres, reflects either a layer of water over the road or pools of water consistent with the accumulation of water from heavy rain.
It is not to be forgotten, on Ms Jaggard's version, that it had been raining heavily for a matter of some minutes, at least before the defendant's motor vehicle came into collision with her motor vehicle in the same immediate stretch of road. The account given by the defendant that her car did not reduce in speed after it dropped to eighty kilometres per hour on the disengagement of the cruise control, notwithstanding the distance it covered, or must have covered before the impact, does not accord with a motor vehicle moving forwards, even in fifth gear, with no further application of the accelerator. On her own version, unable to explain why she did not take earlier evasive action, the last ditch frantic efforts by the defendant to avoid a collision with a car in front of her were directly consequential upon mistakes made sometime earlier and were clearly avoidable, reasonably avoidable, if she had taken reasonable steps.
Conclusion on Liability
The defendant pleaded inevitable accident, I have concluded the collision was clearly not inevitable, notwithstanding the shocking conditions. In fact, because of the shocking conditions it was avoidable by prudent driving with no wisdom of hindsight. Thus, in the circumstances of the matter, the particulars of negligence I have found are that the defendant failed to keep any proper lookout, failed to stop, slow down, swerve or otherwise avoid a collision, failed to have regard to the presence of the motor vehicle registered number WDB 966 (NSW) located alongside the highway, was driving in a manner which was inappropriate in the circumstances, failed to have regard to the prevailing weather conditions, was driving in a manner which was inappropriate in the prevailing weather conditions, driving at a speed which was inappropriate in the prevailing weather conditions and failed to steer her motor vehicle so as to avoid a collision.
DAMAGES
Statutory principles
The issues relating to damages remaining to be decided concern what damages are to be awarded for non economic loss, past and future economic loss, as that relates to impairment of earning capacity.
The negligence established having caused relevant damage, which is conceded by the defendant; the award of damages is to be in accordance with Chapter 5 MACA. In this matter there is no issue that the degree of impartment of the plaintiff, as a result of injury caused by the motor vehicle accident, is greater than 10% (s 131 MACA), the maximum award for 'non economic' loss is $432,000 (s 134 MACA: Motor Accidents Compensation (Determination of Loss) Order 2010).
Damages for past or future economic loss, based upon loss of earnings are, in part, governed by s 125 MACA. In determining whether damages should be awarded for future economic loss, including impairment of earning capacity, the Court is to have regard to s 126. The proper approach to calculating future economic loss, in the context of s 126 of the Act ( Kallouf v Middis [2008] NSWCA 61.) In assessing future economic loss, if a precise calculation would be artificial, a general "cushion" or "buffer" amount may provide a more accurate assessment ( K'Mart Australia Ltd v McCann [2004] NSWCA 283), realistic result .
Where an award for damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss which is referrable to deprivation or impairment of earning capacity, the present value of the future economic loss is to be qualified by adopting the prescribed discount rate (s 127 of the Act). No issue of "attendant care services" arises.
Damages for past economic loss must include a calculation of reductions for income paid or payable. No interest is payable upon an award for damages for non economic loss but may be paid pursuant to s 137(4)of the Act. No issue has arisen in relation to an allegation that the plaintiff has failed to "mitigate" his damage (s 136 of the Act). Of course, the plaintiff bears the onus of establishing any claimed economic loss.
The evidence on damages and loss
The parties tendered 'bundles' of medical reports and the plaintiff tendered a further bundle of material relating to education achievements, employment and tax records. Other exhibits were produced relevant to both medical treatment and economic loss by both parties, set out in the exhibit list. The oral evidence on matters relevant to the 'damages' aspect came from the plaintiff and his mother. No treating health professional or ' expert' was required to attend to be examined.
The plaintiff's evidence
He was born on 1 June 1984 and is now 27 years of age. His father and mother separated before he was born and his father had little to do with him growing up. His father, whose identity was not made known to me, is (or was) a Judge of this Court. He was educated to year 12 at the Cranbrook School in Sydney attaining a score of 98.1 UAI in the HSC which he completed in 2002. . He was active in sports such as rowing, rugby, soccer and basketball. He took a gap year in 2003 doing casual work and commenced an Arts/Law course in 2004, which after a month and a half he transferred over to a Bachelor of Arts/Bachelor of Economics degrees. He said he had no difficulties with the course and completed the second semester in 2004.
In 2005 he began his second year of studies expecting to finish his combined in 2007. At University he played inter college sport including AFL and rugby league and had an active university social life.
The motor vehicle accident and its immediate consequences
On the weekend of the collision he believed he travelled up to Sydney with friends, Sophie Jaggard and Cybil Trebeck. He did not remember coming up to Sydney and has no recollection of the collision. The plaintiff was taken through his various medical treatments in general chronological order, but there is no need to deal with much of his evidence on this in detail, as I will later summarize his treatments from the various medical and dental reports. Much of that material is not in dispute, reflected, in part, by concessions by the defendant as to provision for past and future medical and related 'out of pockets'.
The critical issues requiring detailed examination later relate to the effects of his closed head injury and the extent of intellectual and/or cognitive deficits, their cause and the effect on his academic and work career prospects.
He first remembered events some days later waking up in the St George Hospital in intensive care having been transferred from Goulburn Base Hospital where he was first admitted. Dr Klaassen (a facial reconstruction surgeon) did the first surgery at St George and he was discharged on 6 April 2005. He had suffered the injuries pleaded in the particulars and initially could not speak, in a lot pain and was obviously very distressed by his condition. He had a lot of related injures or pains, and reacted to the medication Augmentin that he was given for a fracture to his outer ear.
For a period of time after release from hospital, he felt dazed and lost weight, up to 15 kilograms. He was feeling 'sick and sore' and was basically housebound. He had a tracheotomy tube removed from his neck a day or two after discharge, leaving scarring .He had other scarring, the major scar surgical in nature, which he showed to the Court. This included a very significant surgical scar from the left to the right hand side of his mandible across his neck in a type of S or Z shape. On discharge from hospital he could not speak without difficulty and could not eat things as he had before the accident. For a number of months he was ingesting soup and blended curries and could not chew any food. This process he had followed on other occasions that he had surgery to his mouth and jaw.
He went back to university about July 2005, but still had some feeling of daze and pain. He was also feeling angry at that time about what had happened to him.
Study and employment, some symptoms and effects of injury and treatment
He said he had difficulty with his memory and had a lot of trouble with his concentration which continues. When he was reading he would "faze out" losing track of what he was reading. When he was studying he received medication, Dexamphetamine, to improve his concentration and that improved a lot. He used that for a year and a half but stopped it when he finished his studies. He finished his Arts degree in late 2007 but had discontinued study for his Economics degree.
In the intervening period of time of his study he had had numerous treatments in Canberra and Sydney, particularly surgeries in relation to his jaw particularised elsewhere and there can be no doubt that he had very extensive disruption to his studies. He said that he had to put more time into his studies and had to concentrate harder to achieve similar results, to those for which he was capable before the accident. He said that he realised he could not deal with the mathematics in the Economics degree and discontinued that course. He finished his Arts degree in 2007, which meant that he took an extra year at University for that degree. He had planned, after dropping the Arts/Law component of his studies, when he took up Arts/Economics, to pursue a career in 'funds management' to pursue a career in the 'finance industry'.
His said in evidence that he had difficulties with his studies at University, obtaining special dispensation for exams in various ways, such as breaks in exams. He took fewer subjects per semester. After he finished University he then undertook courses at 'Kaplan Professional Education College' (Kaplan) from 2008 until the present. These courses were necessary as he had not obtained an Economics degree. Ultimately he hopes to obtain a Diploma of Financial Services. He started, but was unable to complete, a Diploma in "Applied Finance" because of the mathematics involved. As at the time of giving evidence (2 June) he had three further semesters, at one subject per semester, to complete the graduate Diploma he is studying. I accept that the courses at Kaplan are not as challenging as the courses at University, but for the plaintiff this is his remaining option to enter the career of his choice. Because he was unable to complete his Economics degree, and for reasons associated with changes in recruitment policy over which he had no control, delays in getting relevant qualifications and the like, a career as a 'graduate entrant' in funds management is denied him. I will deal with the reasons for that situation in the context of the issues for decision in this matter later. Having completed an Arts Degree and now undertaking the courses at 'Kaplan'. He plans a career in financial planning, because he believes, as a result of the accident, he does not have the ability to do the analysis and other work associated with 'funds management'.
He gave evidence of his employment history since the accident casual or short term contract employment with the Child Support Agency, at Jones Bay Wharf, the Suncorp Bank and more recently the St George Bank, where he has a contract until July. His evidence is that he has had continuing difficulties in each of these work situations, with headaches, pain in his neck and back from sitting for long periods of time and memory loss. The work at Jones Bay Wharf over a two month period was as a waiter which, obviously, with his qualifications, was not a 'career' choice. He could not continue the work because of neck and back pain as well has headaches. At his current employment where he is performing clerical and administrative tasks, as he had done at 'Suncorp 'and the Child Support Agency, he has problems sitting down for long periods of time because of the strain on his neck, he continues with regular headaches and has problems remembering all the things that he is told. In his work he uses a notebook to write things down that he is required to remember. Not just a "to do" list but a list of things he is told during the day. He has problems following instructions and concentrating on the details of what he is told.
Medical treatment
Details of his past medical treatment of which he gave evidence summarized from the plethora of reports tendered are set out later in the judgment.
He will be required to have further treatment to his jaw and teeth which he does not look forward to, with risks of rejection or failure of dental implants, the procedure of which is set out in Exhibit N. He had problems with past implants, including inflamed gums and infection as well as an odour or bad taste in his mouth which will need to be monitored. His future medical and dental treatment is not in any dispute. Aspects of it are referred to in the reports of Drs Grossberg, Hawthorn, Curtis and Coren. He has given up on physiotherapy, feeling it does not provide much comfort, but takes about six Nurofen a day. He is unable to participate in contact sports which would follow from the injuries to his mouth and the like, has tried some other pursuits such as jet skiing, which seems problematic, but is enjoying surfing and golf which he believes contain less risks. His golfing experience is, however, limited to a few games this year.
At the time of giving evidence he has continuing problems with his face, particularly at the right TMJ, which will need replacing. The physical problems from damage to the left TMJ transferred to the right TMJ after the major surgery in late 2007 in the 'Hills Hospital'. When he now opens his mouth he gets a shooting pain up the right, the implants provide some annoyance and he has continuing numbness in his lower gums and lips and on the left hand side of his face in the chin area, with tingling in his mouth. He felt that the problems were "getting worse". He understands that in due course he will need a replacement of the TMJ joint with a prosthetic replacement of the "condyle". He eats largely soft foods or foods that he does not have to chew and avoids salty foods. Cold food such as ice cream affects the nerves on his teeth. He does not eat steak but can eat it if it is cut up into smaller portions, which can be swallowed without chewing. I accept that there has been a diminution of his enjoyment of food considerably.
When he drives for relatively short periods of time he claims pains in his back and neck and some disruption to his sleep because his neck hurts, but not in a major way. So far as the future is concerned and his current plan to be financial planner, he is concerned about the effect upon him of his headaches, his memory loss, the physical difficulties in sitting for long periods of time and the like.
Cross examination
The cross examination of the plaintiff focused on issues that were primarily concerned with his claim of disadvantage in his education, and inability to undertake tasks previously undertaken that (may) impact upon his future earning capacity and employment opportunity.
One focus of examination was the issue of whether the motor vehicle accident did prevent, or hinder him finishing his economics degree. He was questioned about the extent to which he was affected in his mathematical abilities as a consequence of the accident. His inability to advance very far in 2005 was clearly established by reason of the motor vehicle accident, which occurred a few weeks after university started and left him unable to attend university until the second half of the academic year, in about July 2005.
He was taken to his school results and was pointed out that at half way through Year 11 he had poor results which caused him to drop down from 2 Unit, Maths to what was described as 2 Unit "General", which was described as the "basic mathematics" for the HSC. The plaintiff explained that his poor result was because of lack of application rather than aptitude and the primary goal was to maximise his UAI result, which as earlier noted, was just over 98.1. In re-examination it was established that whilst he had a very poor half year result, and while he did undertake mathematics at the lowest 2 Unit level, his results improved considerably at that level at the end of Year 11 and through Year 12. Also, contrary to the proposition put to him in cross examination, he had one unit of his mathematics count to wards his UAI 'score' for the HSC. He had done 11 'units' of which 10 counted to his UAI ' score'.
The plaintiff gave evidence that mathematics was a subject that he had little interest in which had to be developed with the aid of tutoring. He was a little unsure at to when he had his tutoring, but an examination of Exhibit 7(his school records) shows that although he had a set back in maths in the middle of year 7, generally speaking his effort and achievement in his subjects varied between commendable and excellent, with "Excellent assessments on achievement and effort". His mathematical results at the end of Year 11 showed varying degrees of aptitude, with "Excellent" results in "Earning Money" and "Measurement" questions, but only mediocre results in "Area and Volume" and "Taxation" questions. At the end of Year 11 for his overall year results he received a Headmaster's "List" for "Outstanding academic effort". He was cross examined upon his half year results in Year 11 which suggested that he found the "intellectual demands" of mathematics "a challenge" and his result was "disappointing", that he was "standing still". The noticeable improvement through the end of Year 11 and through Year 12 reflected a greater application. He would not be the first student in a particular subject who needed a wake up call to improve, bearing in mind that the overall position in relation to his academic achievement at school was "Excellent" or "High" (the two top categories) by the time he finished Year 12. Further, adjusting one's courses to satisfy the then requirements to maximise the UAI 'score', a critical requirement for University entry, was no doubt a common occurrence. I note his school reports record that in Year 10 his teacher recommended that he undertake '3 Unit' mathematics for the HSC. The cross examination of the plaintiff, and the school results did not reveal the plaintiff to be deficient in mathematical ability to the extent suggested to him.
The cross examination did not reveal that the plaintiff was untruthful or unreliable in relation to issues of "pain" or "forgetfulness" of which he gave evidence. Whilst it is correct to say that he could make more notes to address his forgetfulness, or take use of electronic aids, such as in computers and the like, clearly the need to resort to these matters to address deficiencies that ordinarily he would not need to address had he not had the accident, is an additional burden to his life. His account on this matter was supported by his mother.
He was drawn to the results of neuropsychometric tests, including tests by Dr Scarrabelotti, Dr Falcon, who conducted an examination of the plaintiff in October 2010 and Dr Reid, who assessed him on behalf of his solicitors in 2009. The tests conducted by Scarrabelotti were conducted in 2006 and were sought to demonstrate that one particular test that he did called the "Rey" tests, which he had to do for the neuropsychologists at least twice was itself a very simple test, which should provide improved results with more attempts. The test was sometimes referred to as the 'Rey 15' test. This was the same test applied by Dr Falcon. The point was made in cross examination was that it was the same test conducted four years later and he did worse than before. The suggestion was that the plaintiff was not trying because he did not score well at a later time. The point was difficult to understand, particularly in circumstances where no attempt was made, other than to the witness and not to the Court, to produce the test, beyond showing a piece of paper to the witness with some symbols on it and simply asserting that in order to score highly in the test one had to remember the different categorisation of items on the piece of paper as "numbers", "letters" and "shapes". The point was not well made with the witness in any event.
He was taken to the "ToMM" testing conducted by Dr Reid and Dr Falcon. I understood it was put to the plaintiff that he deliberately underperformed in that test particularly with Dr Falcon. The test is designed, purportedly, to measure underperformance. I will deal with this issue later.
It was bought to his attention, of course, that he maintained a distinction average after the accident, with which he agreed. However, the plaintiff made the point that he had special arrangements to assist him in relation to his exams. Ultimately, the fact was that he finished his degree in Arts a year later than initially expected, than he otherwise might have expected to finish the degree. He did fewer subjects in particular semesters than he ordinarily would have done. The plaintiff had already given evidence, which he reiterated in cross examination, that his concentration was assisted by the aid of the drug Dexamphetamine, which he continued until he finished his studies. He rejected the proposition that was put to him that he abandoned 'Economics' because he encountered difficulties because of the mathematical component.
He was cross examined about some statement he had made to some of the medical practitioners. The plaintiff was straight forward in accepting aspects of histories that he gave to particular doctors about injury to his neck on one occasion, his attainment of grades "on reflection" that were consistent either side of the accident, his capacity as "slow reader" and the like. But in context, his concessions were reasonable and are to be seen in the context of his amplifications. For example, he agreed that "on reflection" his distinction average was no different from what he maintained before the collision, but he made the point several times that he had to "work harder", with a reduced study work load each semester than otherwise was the case.
He was pressed in relation to his claims of pain in his neck, back and headaches, his use of Nurofen (a packet of which he had in his pocket), and the consistency of this with his ability to help his mother around the house, do handyman tasks and the like. He demonstrated the areas where he had difficulty in movement of his head, limitation with range of movements and the like. It was suggested to him at one time, consistent with a physical examination of him by a medical practitioner, that his head movement was "two thirds of the range". This he was prepared to accept. However, head movement of two thirds of the range, reflects substantial degree of impairment upon what he might have expected, but for the accident. He conceded, that he did some running a couple of times a week on a grass track. It was suggested, in effect, that he could live a normal life so long as he "put up with the pain" a matter with which he agreed. But avoiding surgery, or going about his normal life as best he can, in a state of pain caused directly by the accident begs the question that ultimately to be decided by the Court, that is, to what extent damage is referable to the negligence of the defendant.
Ultimately, as one would expect given the character of much of the medical evidence, no challenge was made to the significance of the injuries of the lower jaw. No challenge has been made to the fact that the plaintiff suffered a closed head injury that caused some retro and post traumatic amnesia, affected by medical intervention. There was no challenge to the fact that he had significant and very unsightly scarring to his jaw and his neck from the tracheotomy, that the scarring causes embarrassment and discomfort in a range of ways, that he had suffered extreme pain over an extended period of time to his jaw, directly from the collision and the surgery that followed, and also from a number of dental surgeries and other dental intrusions designed to restore him to the state he was before the motor vehicle collision, which will never be possible. Teeth implants, prosthetic jaw pieces, ultimate arthritic change are all matters particularised in the medical reports not the subject of challenge. Everyday discomfort would reasonably be expected from his injuries and their sequelae. One feature of the plaintiff's evidence was that he did not overstate the significant facial, jaw and related injuries that are not in dispute. If anything, his account of the occurrence of his injuries and their treatment was understated and restrained. This reflects favourably upon the assessment of his evidence about matters very much in dispute.
The plaintiff's mother's evidence
The plaintiff's mother was a respectable retired businesswoman. Many of the matters spoken of by the plaintiff were supported in his mother's evidence, she was a single parent with whom the plaintiff had intense contact both before and since the accident. She was intelligent, straightforward and did not try to embellish her evidence.
She gave evidence of her son's background as a child and a student. He was a gifted student who was pushed into the humanities by her because of the fact that he was very good at essay writing. He studied hard and was very "dedicated". He was sociable, but not too sociable. Notwithstanding the fact that he did not have his father to guide him he remained on track throughout his teenage years to achieve a very fine HSC result. She confirmed the plaintiff's desire initially to do law, and then changing focus to go into the 'finance' area by changing to Arts/Economics at ANU.
The effect upon the plaintiff physically of the motor vehicle accident was very severe, as is conceded by the plaintiff in its submissions. In terms of the physical injuries and the "pain and suffering, discomfort, interruption to the plaintiff's life at that time", little emerged in the cross examination of the mother to detract from this. After release from hospital the plaintiff took quite some time to become functional physically and otherwise, initially when unable to speak his writing was severely affected but improving over the weeks that followed. He lost a considerable amount of weight as one would expect on a liquid diet and was very upset and angry at the fate that he befallen him through not fault of his own, which is to be expected.
She gave evidence of him forgetting to do things, such as attempt upon medical appointments and other aspects of lack of memory. She kept a diary for him of his many medical appointments because he could not remember them and she spoke of his lack of memory over a period of time. She gave evidence of his complaint of back problems, difficulty moving his head around and his regular use of non prescription pain relief, particularly Nurofen, which "for years" since the accident she has brought most weeks in twenty four table boxes for him.
She gave evidence that at the present time he is not returned to the complete person that he was before the motor vehicle accident, noting that he has really "struggled with his life" and his "disability". She spoke of his distaste for the many surgical intrusions (apparently he has had at least 8 general anaesthetics since the motor vehicle accident). She gave evidence that since he finished at University, he had undertaken Certificate and Diploma courses at the Kaplan College but had struggled with the work, reflecting a lack of "ambition" to do the work which was uncharacteristic. She gave evidence that he has memory lapses and gaps in memory, such that she will write him lists to do simple shopping tasks and from time to time he will misplace things within the house, such as putting the salt and pepper in the fridge, milk in the pantry etc. She said that she was very focused about his future because at the present time he was not focused, not determined, he was "drifting". This had made him frustrated and it affected his attitude.
In relation to the clerical type work that he had done in recent years, he became upset, he told her, because he did not understand the work and had problems with people speaking to him quickly about things that he could not remember. She confirmed that he left the waiter's job that he had for a few months in Pyrmont because of his bad back, although in recent times whilst he liked the "banking jobs" during clerical work for Suncorp and the St George Bank but the tasks were really beneath his abilities in her opinion. She said that he was anxious about his life and had difficulty interacting with people.
The main focus of the cross examination, as with that of the plaintiff, focused on discrete areas, particularly the vexed issue of whether in fact he was denied an opportunity to undertake an economics degree given his mathematical abilities before the accident. His mother whilst conceding that he was stronger at the humanities subjects and conceding that mathematical ability was not his strength, would not concede that the mathematics he undertook at the HSC necessarily reflected his abilities. She made the point that he chose courses that would enable him to get a "great" HSC result. Thus his choice of courses primarily focusing on the humanities, his choice of 2 Unit Maths (General) was to that purpose. This was a purpose ultimately satisfied by a UAI of just over 98.
In this regard, in practical terms, the position of the defendant focused upon the claim that the motor vehicle accident in its effect upon him has prevented him from achieving sufficient proficiency in mathematics based subjects (statistics and the like) and thus prevent him from completing his University studies in Economics. There was no dispute that an Economics degree, involving at least some mathematics based subjects, or their equivalent, was a pre requisite to a career in 'funds management'. Having closely considered the plaintiff's evidence and the matters raised in cross examination, I do not accept the submission that the evidence reveals that the plaintiff was "poor" at maths and because of this had no prospect of completing his Economics degree, on mathematical based subjects as opposed to subject such as "economic theory" or "political economy" or "history and philosophy of economic".
It is correct that he went down from 2 Unit Maths to 2 Unit General Maths, prompted by a poor result at the halfway mark of Year 11. However, his results at this "lowest" level of maths were very good thereinafter. The attainment of 2 Unit (General) in the HSC did not reflect his mathematical abilities. Rather, it reflected the strategic position taken that he should undertake courses which would maximise his ultimate UAI result, altogether critical in University and course selection. This was achieved by him with a result of 98.1, which is an excellent result on any view. By reference to the material produced by the defendant, in Year 10 he was being recommended to undertake '3 Unit' mathematics. There can be no doubt that if he was devoid of mathematical ability this is not a matter that would have just emerged in Year 11 but would have been self evident by Year 10.
I have noted the fact that he withdrew from one subject in the second semester ('Quantitative Research Methods') in 2004 in his first year, but his explanation for that reflected nothing of 'incapacity'. His 'withdrawal' does not show that he was incapable of completing the mathematical component of Economics at University pre accident. What precisely was required was not made clear, beyond a requirement to undertake some subjects with a 'statistics' component. Clearly his results subsequently at the Kaplan College, reveal a difficulty in undertaking mathematic based subjects for that Diploma course, causing him to change the course to be undertaken to that more suitable for "financial planning" as opposed to "funds management". Both his decision to abandon Economics and his subsequent performance at the 'Kaplan College' clearly indicate a lack of capacity to undertake courses that he wished to complete. But for the accident, given his general intellectual ability and his past performance at school and his explanations, I am satisfied on balance that he ought to have been able to complete an Economics degree or complete courses requisite to commence a career in funds management.
The cross examination of the plaintiff on his University results and his performance in mathematical subjects both before and after the accident has not persuaded me that I should not accept the plaintiff's evidence on this matter. His academic 'transcript' did not show the complete picture as far as courses that he had started and not completed, nor the real reasons.
There can be no doubt that his university career was not only interrupted by the motor vehicle accident, but it caused a significant disruption to his plans so far as his degrees are concerned. The matters raised with him in cross examination to suggest that he had not the ability to complete an Economics degree that included a mathematics at "statistics" component, before the accident, was rejected by the plaintiff and is not established (in the evidentiary sense) from other material. That is not to say that he would not have encountered difficulties in relation to mathematics if he had gone further with that degree. However, the physical effects upon him of the accident and the sequelae of his physical injuries, had an impact upon his capacity to undertake his university studies in a very substantial way beyond delaying completion of his Arts degree.
A very important matter raised several times by the defendant, emphasised in reply to the submissions made by the plaintiff on future and past economic loss, was the that the plaintiff's performance at University in non mathematics based subjects remained much the same both before and after the motor vehicle accident. This embraced part of Dr Falcon's analysis. It was submitted that in fact there may have been some slight improvement in his performance by reference to his University grades. Certainly he maintained high standards, although his only 'High Distinction' was attained before he was relevantly injured. Certainly, the evidence establishes in relation to humanities based subjects, at which he was obviously very strong at school as well, he had a very high level of achievement. The University results after the motor vehicle accident are not, however, inconsistent with the finding that I have made as to the probability of the existence of the continuing effects of the brain injury that he suffered because of the negligence of the defendant. Primarily I come to this conclusion because the plaintiff explained, supported by his mother and histories provided during the course of his various assessments, that he maintained his standards by the mechanisms to which I have referred several times: reduced subject load, greater indulgence by the authorities in relation to study and exam conditions and by his continuing use of the drug Dexamphetamine to assist him in relation to his powers of concentration, which he abandoned, when its need was no longer "urgent" or "vital" to his academic success.
Conclusions
Assessment of Damages for Non Economic Loss
The appropriate construction of s 131-134 MACA is that an award of damages for non economic loss, once the threshold has been established or agreed, whilst capped by the terms of s 134 MACA: Motor Accidents Compensation (Determination of Loss) Order 2010, is to be assessed not by reference to a proportion of a most extreme case, but without statutory restraint, save that no more than $432,000 (or the relevant cap) can be awarded ( Hodgson v Crane (2002) NSWLR 1999), provided the Court has regard to the information provided by the MAA, as required by s 135, if appropriate ( Hodgson at 200-202, 210, 211). There is no need to reduce damages awarded to maintain a relatively to the cap as was previously required. Relevant matters in the assessment of non economic loss in this case include the plaintiff's 'pain and suffering', directly from the motor vehicle accident and subsequently in relation multiple surgical and dental treatments and recovery periods, loss of amenity (or enjoyment) of life from his various 'disabilities' and treatments as well as the effect upon him of loss of opportunity and 'economic loss'.
I have referred in detail to the plaintiff's evidence of his injuries, disabilities and sufferings. Some of his evidence was quite understated. I accept the witness as a person of truth, supported by another truthful witness in material respects.
In the context of earlier observations the evidence, the plaintiff has suffered, as a direct consequence of the negligence of the defendant, very significant pain and suffering both from his injuries and from the treatment of his injuries, particularly the injuries to his face, jaws, teeth and mouth. Obviously the character of these types of injury have been and remain and will remain for a considerable period of time a constant reminder for the plaintiff of the accident with continuing discomfort and pain from time to time. The mouth is a very sensitive area of the body and given its importance in very day activities the presence of discomfort or pain has been, and will be from time to time, constantly present. Other symptoms add to this aspect.
The plaintiff's enjoyment of life has been considerably diminished in a range of ways, with disruption to his social life, restrictions upon his ability to participate in physical activities (even noting that early last year he undertook some jet skiing and suffered an unrelated muscular injury to his shoulder), diminution of his capacity to ingest and enjoy food that he enjoyed before his accident, restrictions on his manner of speaking and general use of his jaw and difficulties with sitting and standing for long periods. He has some restriction upon the movement of his head and neck, as earlier noted assessed as a loss of at least one third of a particular range of movement. This effects working, driving a motor vehicle, sleeping (to limited extent) and physical exercise. He has continuing headaches, loss of memory, loss of concentration, and hence difficulty undertaking tasks previously easily accomplished, some minor hearing loss and tinnitus and "emotional and psychological" injury continuing to the present time. This last matter assessed by Dr Phillips probably amenable to treatment over time.
As particularised, and set out in the available medical reports, noting the comments of Dr Curtis who has commented for the defendant, it is likely that the plaintiff will be required to undergo further prosthetic jaw replacement surgery on his temporomandibular joints. I have referred earlier to the plaintiff's evidence of continuing discomfort in this area of the face. This will involve significant disablement and recovery periods and interruption to his capacity to work. Having regard to the character of this treatment and the character of dental implant surgery there will be continuing surgery to replace prosthetic "parts" and/or dental "implants" throughout his life, each treatment obviously interrupting the work life and personal life of the plaintiff. Each treatment, giving the plaintiff's previous experiences, involving considerable discomfort, even pain. Further, the likelihood is his diminished cognitive capacity will prevent him achieving what he was capable of achieving prior to this motor vehicle accident. He will most likely have continuing disadvantages in maintaining pace with the demands of fellow workers and employers and I accept that he will suffer significant loss in his potential earning capacity.
There can be no doubt that the plaintiff is substantially diminished as a person by his injuries. The plaintiff's ambitions at University and for the future have been affected by his injuries in a range of ways. It is clear that the plaintiff continues to suffer disappointment at not being able to achieve his ambitions at University and in his career choice, a matter that is relevant in the assessment of non economic loss, even if it also has relevance in relation to "economic loss" ( Hodgson at [44]). As earlier pointed out in relation to the physical and emotional sequelae of the accident, including "psychological" conditions, whether caused by brain damage or from "emotional" or "reactional" causes, these were not seriously disputed. The defendant submits that the plaintiff's capacity to undertake physical activity will improve and may be marginally greater than asserted by him. Of course, there has been physical improvement over time in relation to cervical and related disabilities, but substantial symptoms still persist and will continue to persist, into the future for some ill-defined time.
It is to be remembered that at the time of the injury the plaintiff was a relatively young man, with well founded hopes of successful and fulfilling social and professional life. The physical injury to his head and jaw structures has had a substantial adverse impact upon him in a range of ways, in association with the recurrent surgical, dental and therapeutic treatments. Putting aside brain damage he has developed a substantial 'adjustment disorder' and other emotional or psychological symptoms.
Noting the concessions by the defendant as to the substantial character of matters relevant to the assessment of "non economic loss" that are not disputed, particularly the considerable impact upon the plaintiff's enjoyment of life in a range of ways and his continuing facial and dental disabilities, I assess damages for 'non economic loss' at $270,000.
Past economic loss: past impairment to earning capacity
The principles to be applied for assessment of economic loss are summarised in Kallouf v Middis [2008] NSWCA 61. In relation to past economic loss I have already set out the relevant submissions of the parties. The plaintiff seeks a specific amount, calculating income loss from 1 January 2008 to 6 May 2011 (which will be adjusted to the date of the Courts judgment), in accordance with the details in the particulars, with a particular amount for superannuation loss over the same period. The defendant submits a modest buffer is appropriate. Part of the defendant's argument in relation to the buffer turns upon the fact that the assumption in the plaintiff's submissions for a specific amount assumes an immediate commencement of work without interruptions for extended holidays, delays in obtaining employment and the like.
If the matter was to be resolved by a "buffer" figure, even allowing for the vicissitudes and interruptions to work submitted by the defendant, assuming all other relevant matters, the reality is that the plaintiff's injuries, amongst other things, delayed the plaintiff's entry into the work force by at least a year given the loss of one whole semester and the need for the plaintiff to take fewer subjects per semester in order to complete his education. It has also impacted upon his capacity to complete his post-graduate studies, whether one embraces the views of Dr Phillips/Reid etc or Dr Falcon's opinions that lie within his expertise. The buffer amount suggested by the defendant, taking this into account and considering other matters that are relevant, is very modest indeed. For reasons later dealt with I have come to the conclusion that the negligence of the defendant has probably prevented the plaintiff from completing an Economics degree and to complete the lesser courses available from the 'Kaplan' College. Furthermore, the delays in the plaintiff completing the Kaplan courses, to which he has been forced to attend because of the consequences of motor vehicle accident, has meant that he had missed opportunities to enter employment with larger banking organisations under the "graduate intake. As the plaintiff explained, the rules have changed and new graduates are required to be taken in within a restricted period of time which he could not meet because of the delays in completing his "post graduate" qualifications.
In the interim period he has been required to undertake work in administrative tasks not in keeping with his aspirations and attracting income less than he would otherwise be entitled if he was working as a financial planner for a Banking Institution, or as a Funds Manager for such an institution. The calculations in the schedule provided by the plaintiff (Exhibit P) are based upon figures available from Stinson - " What jobs pay 2010 - 2011 " booklet and schedules. Whilst the defendant took some issue with the categorisation of potential employment, as I understood the defendant's position there was no dispute that the guide provides a fair and reasonable statement of "market rate earnings" (although for the "best paid occupations" the figures are "conservative") and there was dispute as to how the plaintiff's Senior Counsel categorised relevant comparative employment. There was no issue taken that the job income figures, absent the issue of "categorisation", were "realistic". The figures are said to be somewhat understated, particularly in relation to the professional categorisations. Calculating the figure based upon the age of the plaintiff as at his actual date of graduation, the plaintiff claims income loss of $152,750 plus superannuation of $17,877 ($170,627).
The modesty of the defendant's 'buffer' amount is demonstrated when one considers that I accept that it was the plaintiff's intention, but for the defendant's negligence, to finish an Arts/Economics degree, and that there was a probability that he could obtain that degree and pursue his career in the "Finance Industry" as a Fund Manager, financial analyst or something similar. I accept that it is more probable than not the motor vehicle accident caused him to withdraw from the Economics degree and that since graduation he has continued to undergo regular medical and dental treatments and reviews, some related to this litigation, which have interrupted his capacity to complete the post graduate studies at the 'Kaplan College' and enter the work place. Because of the negligence of the defendant he is required to undertake the 'Kaplan' course. The necessity for him to undertake the course, delays in respect his University education in any event, requirements for various treatments has, and will, delay his entry into the Banking/Finance sector until at least 2012 and probably later, in circumstances where it would have been expected that he would have entered that part of the work force sometime during 2008. The particulars of the current employment, his past employment since graduation and his attempts to obtain employment as particularised and set out in his evidence have not been disputed. His current gross weekly wage is $907.88, his net weekly wage is $780.43.
At paragraph 12 of 'Past Economic Loss' in the " Second Further Amended Particulars ", particular figures are based upon the expectation that he would earn not less than the full time adult male average weekly ordinary time earnings in New South Wales in 2008, 2009. Adopting the average calculating that average over 174 weeks until 6 May 2011, less amounts earned and tax payable, the plaintiff's counsel arrived at the figures earlier mentioned. (see paragraphs 12-13 Second Further Amended Statement of Particulars). There is also a claim of further loss from part time bar work that he may have undertaken whilst pursuing his full time employment. This was not adverted to in oral submissions and was not the subject of specific evidence from the plaintiff.
But for the 'motor vehicle accident', I accept that he would have earned not less than the full time adult male average weekly ordinary time earnings in New South Wales. However, I do not accept that he would have commenced employment from 1 January 2008. I would calculate the commencement date for the calculation for past economic loss as at 1 May 2008, on the assumption the plaintiff would have taken time to find work and taken a break for travel (he has made several trips to Asia since completing University in any event). The relevant calculation is to be made between 1 May 2008 and the date of judgment, a total of 164 weeks. Assuming the correctness of the deductions for past wages (s 125 MACA) and related matters the total award for past economic loss, accepting the basic figures of the plaintiff's counsel as particularised (at parag 12-13) over 164 weeks, less amounts earned ($16,900), I assess that amount as $143,000. Superannuation loss for the same period is $16,747.80.
Future economic loss: Future impairment to earning capacity
In accordance with s 126 MACA, as interpreted by a number of judgments, including Penrith City Council v Parkes [2004] NSWCA 201: Nominal Defendant v Lane [2004] NSWCA 405 and particularly Kallouf v Middis (at [7]), the Court is required:
i) to assess the most likely of the possible future economic circumstances facing the plaintiff, but for the accident, including type of employment, duration of employment and remuneration,
ii) assess the plaintiff's economic prospects as a consequence of the accident,
iii) compensate the plaintiff for the difference between (i) and (ii) including, where appropriate, through the use of a buffer,
iv) adjust (iii) by an appropriate percentage,
v) vicissitudes, to reflect the possibility that the plaintiff may not have achieved (i) above, even if the accident had not happened,
vi) include a statement of the assumptions made as to the plaintiff's most likely future circumstances and the appropriate percentage adjustment.
The defendant seeks, should she be found liable, the award of a buffer. The plaintiff seeks specific amounts calculated assuming a retirement age of 67, a reduction of 15% for vicissitudes, an award for the loss of opportunity, an allowance for additional loss pending completion of studies (consistent with the calculation in past economic loss) as well as superannuation amounts. The calculation submitted by the plaintiff for future loss pending completion of studies, while a valid claim, appears on my calculation to "double dip" upon the other, specific claim, for future economic loss. He also claims for too great a period.
In the context of the terms of s 126 of the Act, and the principles summarised in Kallouf , noting the need to assess the extent of compensation for the loss of earning capacity I conclude that as a result of the defendant's negligence it is likely that the plaintiff will not obtain employment, or obtain a career, in the area of funds management, but will be required to pursue a career in financial planning with diminished prospects of remuneration and success in find employment, maintaining employment and/or developing a career that would have been able to take advantage of his pre-accident capacities. He will be denied well renumerated opportunities in the finance and related industries.
The effects of his injuries whilst they will impact upon his enjoyment of life will not, on balance, necessarily shorten his working life. The diminution of the plaintiff's earning capacity will be productive of financial loss. There has not been, in the skilful conduct of the case for the defendant, evidence adduced through the cross examination of the plaintiff, nor by any other avenue, or alternatives to what the plaintiff is capable of doing and what jobs are open to him ( Rabay v Bristow [2005] NSWCA 199 (at [73]-[75], Magnou v AWTA Ltd [2007] NSWCA 357 (at [20]), Kallouf at [50]).
In judging future impairment to earning capacity it is noted that past income is, in this case, little guide. The plaintiff was not 'struck down' in mid career or even at the beginning of his career. He was in the beginning of his studies, and since graduation his employment opportunity has been inhibited, delayed or denied by multiple medical treatments, the direct effects of his 'disabilities' and by the delays in completing his 'formal' education to qualify for pursuit of his career ambitions.
I appreciate the burden resting on the plaintiff, but little has been advanced by the defendant in evidence, less so in submission, to contradict the 'hypotheses' advanced by Senior Counsel for the plaintiff for the calculation of future earning capacity, beyond the proffering of an imprecisely calculated buffer amount.
Here the most likely future circumstances, but for the injury, was that the plaintiff, free of ill health armed with an Economic degree, educated at leading educational institutions with their inherent advantages and attractions to employers, would have forged a career in the funds management and stockbroking worlds. The territory of Tom Wolfe's "masters of the universe". Whilst there are some inexactitudes at work, even on the Stinson figures (the only wage market analysis provided to assist in this task) the Court does not have "open' to it the option of "abandon(ing) the task" by settling upon simply a buffer amount.
Here, in addition to those amounts that may be calculated with Stinson figures, there is the issue of the "loss of opportunity" to excel beyond what can be more precisely calculated on the figures relied upon by the plaintiff. Here the loss of opportunity established is that which would arise from graduating from 'funds management' to higher echelons of the finance industry, either in 'stockbroking' or 'corporation management' where the rewards are not just with enhanced remuneration in terms of salary, but in other ways with 'share options', profit sharing', productively and profit bonuses and the like. The diminutions of the plaintiff's capacities are largely with him for the rest of his working life. In one sense, in the areas of employment potentially open to the plaintiff, the loss might theoretically been seen as "limitless". His counsel submitted that it should be calculated at $200,000, including superannuation. I conclude that this figure is a reasonable one in the context of the 'industries' of which I am required to contemplate ( Rabay v Bristow [2005] NSWCA 199 (at [79]): Donald v McKeown [2004] NSWCA 285 (at [38]): Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 (at 643): cf Norris v Blake [No 2] (1997) 41 NSWLR 49 (at 72-73)).
So far as future impairment is concerned I note that the plaintiff's completion of 'post graduate study' has been delayed by reason of his disabilities and his treatments. The plaintiff, on a calculation based on current earnings calculates a loss over 2.5 years. My understanding of the evidence is that the delay is in the order of 1.5 years. The calculation in Exhibit P, as with other precise calculations (as opposed to the fundamental assumption on which they are based) have not been subject to serious challenge.
There has been no issue raised as to the plaintiff's willingness to find employment, to complete his studies or do his very best to achieve what his capacities will dictate.
In assessing these matters I note that at the present time the plaintiff earns $907 gross, $780 net.
- Current average weekly earnings are not less than $1417 gross, $1080 net.
- On the Stinson figures, for 'financial investment advisers' (with graduate, diploma or experience qualification aged 25-29) the gross weekly earnings are $1304, $1014 net. Rising (at present rates) to $1684 gross at age 40. These figures represent the figures for 'financial planner' wages.
- 'Financial dealers' (at age 25-29) gross earnings are $1975.
- Assuming the likely economic circumstances for the plaintiff but for the accident and his prospects as a consequence of the accident, represent, on the current figures, a difference of $400 net, assuming a working life to age 67 from the date of order, a relevant percentage adjustment of 15% for vicissitudes and the appropriate adjustments required pursuant to s 126 of the Act, with a delay of 1.5 years until full time employment, I assess future "economic loss" in this respect (with a multiplier of 906 representing 38.5 years at a discount rate of 5%) as $308,040.
- With a discount for this amount being deferred for 1.5 year of 0.930, this sum is $286,477.20, but say $286,000, plus $31350 for superannuation.
- Noting the net amount may be understated on the above figures for past income impairment or loss I allow $300 (the difference between current net earnings and AWE net) for 1.5 years for lost earnings pending delayed education. I assess that component as $23,400, with superannuation loss assessed at $2574.
Lost opportunity to earn amounts beyond those calculated I assess, in the context of the potential rewards in these well renumerated industries, at $200,000 (including superannuation) as submitted by the plaintiff. This assessment has been the most difficult to assess, but making allowances for the various considerations, including vicissitudes, I have concluded that the submission of the plaintiff is relatively modest given the very lucrative potential with success in funds management and the career paths from that to related areas. For the reasons earlier noted, the likelihood is that the plaintiff will be denied the opportunities arising for those working in the funds management and related areas to that.
There was no evidence of past 'commercial assistance'. There is a claim for future commercial assistance. In the absence of any evidence of the likelihood of such assistance being required I cannot make an award for this. The defendant did concede that if found to be required a small amount may be awarded but pointed to the absence of a basis for it. I decline to make an award of 'damages' in this respect.
Orders
Verdict for the plaintiff, judgment will be entered for the plaintiff in respect of the sum of $ 1,372,486.27 (plus any interest payable), comprising the following components:
1.
Non economic loss
$270,000.00
2.
Past out of pocket expenses (as agreed)
$199,414.47
3.
Future out of pocket expenses (as agreed)
$200,000.00
4.
Past economic loss
Income loss from 01/05/2008 to 27/06/2011
$143,000.00
5.
Superannuation loss from 01/05/2008 to 27/06/2011
$16,747.80
6.
Future impairment to earning capacity
comprising:
sum for future loss (allowing a 1 year deferral) - $286,000
superannuation on that amount at 11% - $31,350
'loss of opportunity' - $200,000
$517,350.00
7.
Impairment to earning capacity until completion of studies (one and a half years) including superannuation
$25,974.00
8.
Interest (subject to s 137 MACA) to be calculated.
Total (not including interest)
$1,372,486.27
Costs
Costs will follow the event in favour of the plaintiff. The plaintiff made an Offer of Compromise on 16 November 2010 in accordance with Rule 20.26 of the Uniform Civil Procedure Rules (2005). The offer was for "verdict and judgment for the plaintiff against the defendant in the sum of $855,000" inclusive of s 83 MACA payments. Rule 42.14 provides that when an offer made by a plaintiff is not accepted by the defendant and the plaintiff obtains an order or a judgment no less favourable to the plaintiff, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim assessed on the ordinary basis up to the time from which those costs are to be assessed, here the 16 November 2010, and on an indemnity basis thereinafter. Allowing for time for service of the Offer of Compromise costs are therefore awarded in favour of the plaintiff against the defendant, on the "ordinary basis" up and including 17 November 2010, on an indemnity basis from 18 November 2010 to the date of this order.
Annexure 'B'
PARTICULARS OF INJURIES RECEIVED
(i) a grossly comminuted and essentially trilateral fractured mandible involving fractures of the right and left bodies with comminution and high level displaced fracture of the left mandibular condyle.
(ii) outer ear fractures;
(iii) perforated left eardrum;
(iv) loss of right lower first and second teeth;
(v) loss of left lower first, second and third teeth;
(vi) fractures to the right lower third tooth;
(vii) fractures to the right upper fourth, fifth and sixth teeth;
(viii) fractures to the left lower fifth and sixth teeth;
(ix) fractures to the left upper first, fourth, fifth and sixth teeth;
(x) a fractured skull;
(xi) a severe closed head injury;
(xii) a fractured hyoid bone;
(xiii) a flexion extension injury to the cervical and thoracic spines;
(xiv) necrotmesis of:-
(a) the left inferior dental nerve of the mandibular division of the left trigeminal cranial nerve;
(b) the left zygomatic-facial nerve of the maxillary division of the left trigeminal cranial nerve;
(c) the left infraorbital nerve of the maxillary division of the left trigeminal cranial nerve;
(d) the left buccal nerve of the mandibular division of the left trigeminal cranial nerve;
PARTICULARS OF CONTINUING DISABILITIES
(i) pain, stiffness and limitation of movement in the jaws;
(ii) loss of feeling/altered sensation in the jaws;
(iii) loss of feeling over the lower face;
(iv) pain in the left ear canal;
(v) development of a fistula in the left ear canal;
(vi) difficulty eating, talking, yawning, etc.
(vii) malocclusion due to complex mandibular and dental alveolar fractures;
(viii) need to undergo numerous dental procedures to remove, replace and/or repair damaged teeth;
(ix) pain and acute sensitivity in remaining damaged teeth;
(x) an adherent tracheotomy scar to the base of the neck. This scar is five (5) centimetres in length and one (1) centimetre in maximum width.
(xi) an eight (8) cm scar in front of the left ear in the crease extending on to the neck.
(xii) a thirteen (13) centimetre Z shaped scar on the neck extending from the margin on the right mandible on to the central neck and then on to the left side of the neck;
(xiii) self conscientious due to scarring;
(xiv) discomfort due to neck scarring in cold weather;
(xv) significant surgical emphysema from traumatic injuries to the face and neck. This has resolved.
(xvi) voice hoarseness following tracheotomy. This has resolved.
(xvii) cognitive difficulties including reduced speed of thinking, reduced short term memory for verbal and visual information, reduced verbal fluency, word finding difficulties;
(xviii) difficulties with concentration;
(xix) increased difficulties with university and post graduate studies following accident;
(xx) depression and anxiety;
(xxi) headaches;
(xxii) pain, stiffness and limitation of movement in the cervical and thoracic spines;
(xxiii) development of arthritic disease in the temporomandibular joints;
(xxiv) chronic bilateral facial pain;
(xxv) need to undergo numerous surgical, dental and other procedures including:-
(a) internal fixation of multiple mandibular fractures including a fracture of the left upper alveolar process and extraction of multiple fractured teeth (on 25th March, 2005);
(b) reconstructive jaw surgery in the form of a revisional mandibular osteotomy with a synthetic bone graft (on 18th December, 2006);
(c) an operation for the removal of non resorbable Gortex membrane and screws from the osteotomy/mandibular symphyseal region (on 2nd August, 2007);
(d) An operation for the removal of the previously placed bone plates and screws from the right lower border of the mandible (on 4th September, 2007);
(e) root canal treatments;
(f) temporary crowning procedures on teeth;
(g) an operation to revise the tracheotomy scar (in March 2008);
(h) laser revision of tracheotomy scar (on 8th May 2008);
(i) extensive dental implant surgery under general anaesthetic (on 10th October 2008 and 27th February 2009);
(j) multiple appointments for the installation of implant caps and permanent crowns (in April, May and July 2009);
(k) extraction of tooth 36 (on 18th June 2009);
(l) surgery for the placement of an abutment in the left lower jaw in place of tooth 36 (in October 2009);
(m) installation of a cap to the abutment in the left lower jaw (on 14th April 2010);
(o) extraction of tooth 25 and insertion of endosseous implant (on 23rd September 2010);
(p) The taking of impressions in preparation for a permanent crown on tooth 25 (on 1st February 2011).
(q) The placement of a single implant crown on tooth 25 (on 1st April 2011).
(xxxvi) it is most likely that in the future the plaintiff will need to undergo prosthetic jaw replacement surgery on his temporomandibular joints, which will need to be repeated at approximately twenty (20) year intervals. This will involve extensive pain and suffering and loss of amenities of life.
(xxxvii) in the future the plaintiff will also need to undergo repeat dental implant surgery and follow-up prosthodontic procedures approximately every twenty (20) years. This will involve extensive pain and suffering and loss of amenities of life.
(xxxviii) facial scarring and asymmetry.
(xxxvix) painful upper right teeth on eating.
(xl) numbness over the lower lip, left cheek and chin and some lower teeth.
(xli) restriction to eating only soft foods.
(xlii) restriction in ability to fully open mouth.
(xliii) tenderness over the temporomandibular joints and muscles of mastication.
(xliv) a painful reciprocal "click" in the right temporomandibular joint.
(xlv) deviation to the right on mouth opening.
(xlvi) difficulty with speech and articulation resulting in a tendency to mumble.
(xlvii) disturbed sleep patterns.
(xlviii) poor sitting tolerance.
(xlix) difficulty with prolonged driving.
(xlx) restriction in ability to engage in pre-accident leisure and social pursuits.
(li) minor sensory change in the C7 distribution on the left. This has resulted in reduced sensation in the left middle, ring and little fingers.
(lii) restriction in ability to undertake activities involving heavy and/or repetitive bending, lifting and/or twisting.
(liii) moodiness.
(liv) agitation
(lv) reduced motivation
(lvi) cynicism
(lvii) shortness of temper
(lviii) forgetfulness
(lix) adjustment disorder with depressed mood
(lx) horizontal bone loss of mid-line implant (supporting five (5) unit implant bridge).
Decision last updated: 11 October 2011
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