Davis v Swift
[2013] NSWDC 99
•04 June 2013
District Court
New South Wales
Medium Neutral Citation: Davis v Swift [2013] NSWDC 99 Hearing dates: 7, 8 and 9 May 2013 Decision date: 04 June 2013 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the defendant.
(2) Plaintiff pay defendant's costs.
(3) Liberty to restore in relation to costs.
(4) Exhibits retained for 28 days.
Catchwords: PERSONAL INJURY - Pedestrian crossing to the middle of a busy roadway runs backwards without looking - collision with car about to leave the kerb - whether breach of duty of care - contributory negligence - "blameless accident" (s 7B Motor Accidents Compensation Act 1999 (NSW))
PRACTICE AND PROCEDURE - admissibility of surveillance film (UCPR r 31.10) - tender opposed on the basis of failure to disclose prior to trial - whether forensic purpose demonstrated - surveillance film admitted into evidenceLegislation Cited: Civil Liability Act 2002 (NSW), ss 5D(1)(a) and 5E
Motor Accidents Compensation Act 1999 (NSW), s 7B
Uniform Civil Procedure Rules 2004 (NSW), r 31.10Cases Cited: Australian Postal Corporation v Bessey [2001] FCA 266
Axiak v Ingram [2012] NSWCA 311
Derrick v Cheung (2001) 181 ALR 301
Goodsell v Murphy (2002) 36 MVR 408
Griffiths v Kerkemeyer (1977) 139 CLR 161
Halpin v Lumley General Insurance Ltd [2009] NSWCA 372
Harrison v Melhem (2008) 72 NSWLR 380
Henderson v McLean [2007] NSWDC 199
Hill v Forrester [2010] NSWCA 170
Jaber v Rockdale City Council (2008) Aust Torts Reports ¶81-952
Jarzebski v Jiminez [2006] NSWCA 104
Jones v Bradley [2003] NSWCA 81
Ma v Keane [2003] NSWCA 50
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Manley v Alexander [2005] HCA 79
Tsuji v Metromix Pty Ltd (1998) 28 MVR 401
Yates v Jones (1990) Aust Torts Reports 81-009
Yip v Zreika (2001) 35 MVR 305Texts Cited: - Category: Principal judgment Parties: Plaintiff: Carolyn Davis
Defendant: Deborah SwiftRepresentation: Plaintiff: Mr G Dilworth
Defendant: Mr P Cummings
Plaintiff: Brazel Moore Lawyers
Defendant: Moray & Agnew
File Number(s): 2009/332923 Publication restriction: None
Judgment
The plaintiff by Amended Statement of Claim filed on 10 April 2013 brings proceedings for damages for the circumstances in which she suffered injuries as a pedestrian on 20 March 2009, on the roadway in Vincent Street, Cessnock NSW.
The particulars of negligence, which are relevant to the principal claim and not to the "blameless accident" claim brought in the alternative under s 7B Motor Accidents Compensation Act 1999 (NSW) ("the Act"), are as follows:
(a) Failure to keep a proper lookout;
(b) Failure to avoid a collision;
(c) Driving at an excessive speed in the circumstances;
(d) Failure to brake or swerve in order to avoid collision;
(e) Failure to take reasonable care for the safety of pedestrians.
The plaintiff suffered the following injuries and continuing disabilities:
(a) Fractures to right leg;
(b) Injury to right foot;
(c) Psychological injury;
(d) Anxiety and depression.
The issues for determination
The issues for determination are:
(a) The plaintiff brings proceedings for damages in negligence and, in the alternative, on the basis of blameless accident under s 7B of the Act. Breach of duty is denied and blameless accident is admitted. The first question for determination is therefore whether the defendant has been negligent as alleged, and if a finding of breach of duty is made, there should be a reduction for contributory negligence;
(b) In the event that the plaintiff falls back on the blameless accident provisions, issues of contributory negligence in accordance with the principles enunciated by the New South Wales Court of Appeal in Axiak v Ingram [2012] NSWCA 311; and,
(c) Quantum of damages.
The plaintiff's evidence of the accident
The plaintiff was interviewed at the scene of the accident and shortly thereafter in her home by a police officer. She also completed an accident notification form (Exhibit 3). In order to understand the evidence as it unfolded, and by reason of my credit findings concerning the plaintiff, it is helpful to set out the contents of these documents first.
The accident was described by the plaintiff in the accident notification form, in answer to question 16, as follows:
"I was standing between 2 parked cars.
I then proceeded backwards to sidewalk to walk down street where B. Swift [the defendant] hit me and ran over me." (Exhibit 3)
Accompanying this description is a map where the plaintiff shows herself as standing in between the defendant's parked car (to her right) and another parked car (to her left).
The plaintiff was spoken to at the scene by the police officer, Constable Craig Bown, who also interviewed both the defendant and, at a later date, the plaintiff. He said in his evidence (T 163) that the plaintiff was "on the roadway", not the gutter or footpath, and that she told him "It was my fault".
Constable Bown later interviewed the plaintiff at her home (Exhibit 2), and wrote down her account of the accident, which she signed:
"5.6.09 Friday
Maitland
RE: ACCIDENT
VINCENT ST CESSNOCK
ON 20.3.09 at
1.50 pm
VERSION:
I left the computer shop located in Vincent Street Cessnock. This shop is on the left hand side of Vincent Street as you head South.
I am unfamiliar with the area of Cessnock, a town centre, so the shop lady gave me some directions on how to get to Big W.
I left her shop & was working out how to get to Big W whether or not walk or drive.
I looked up & down Vincent Street looking for the nearest pedestrian crossing which I noticed one was approximately 60 meters North.
At that time I was standing on the gutter edge between two parked cars.
The vehicle that run [sic] over my leg was on my right, it was the closest car to my right.
I was standing right at the front right hand headlight of the parked vehicle looking forward.
I didn't see if anyone was in the driver's seat.
I decided to step back toward the footpath and walk down to the crossing.
I went to turn around, my foot was turned as I was has [sic] turned around at the same time her front wheel, was turning as she was moving forward, it has rolled into my foot with the tyre grabbing my shoe and throwning my around into the traffic lane, throwing me onto my bum, with the cars wheels, rolling over my right leg & knee.
She stopped the vehicle and I moved out from the car.
A short time later ambulance arrived and I was taken to the hospital.
As a result, I have suffered a broken tibular [sic] and shattered knee joint. I had a plate & pins inserted to my right leg and received on going [sic] treatment from the fracture [illegible] at Maitland hospital.
Davis [signature] 5/6/2009" (Exhibit 2)
The plaintiff's evidence of the circumstances of the accident is as follows. She was in a computer shop in Vincent Street, which is the main road in Cessnock. She had left the computer shop because she needed to buy a flash drive at Big W. She was unfamiliar with the street but was told by the store assistant in the computer shop that Big W was "over the road" (T 27 line 36); the store assistant had pointed towards a laneway directly opposite the shop, on the other side of the road. It was necessary to go over a bridge to the Big W store at the other end of the street. According to her evidence:
"Q. When you say you left her to shop, where did you go then?
A. Then I walked out, out the front door. I continued to walk straight ahead. I got to the kerb and then I couldn't see any pedestrian crossings. I looked up and down. There was a sidewalk full of people. The vision - I couldn't see the pedestrian crossing from where I was" (T 28)
The plaintiff was unable to identify where she was from a map of Vincent Street. She went on to say:
"A. Okay. Like I said, visibility was bad. I couldn't see where the pedestrian - the nearest pedestrian crossing was. So I stepped off the kerb and in between two parked cars and the [sic] I looked down to my right and then I saw people walking across the street and then I saw the traffic lights and the pedestrian lights, and I said, okay. So at that point, by the time I got the clear view, I was on the - out at a point on the righthand driver's side of the lady on my right; I didn't see her in the car, but my lady on the right.
Q. Just to be clear: the evidence you've given is that you started on the kerb and you've walked out onto the street?
A. Proceeded to walk out to the edge of the cars where they were parked so I could get a clear view of where
Q. Could you just describe then, and I know perhaps you were just about to do that, but could you just describe, in relation to those two parked cars, where you were after you left the kerb?
A. Directly in between, headlight to tail light, I was on the same line.
Q. Which of her headlights, left or right?
A. Her right headlight, the driver's headlight.
Q. Her driver's headlight was where in relation to your body?
A. It was to my right side, directly adjacent.
Q. And about what distance from your right side of your body?
A. It was approximately 2 foot. It was quite close.
...
Q. What happened next?
A. And then I proceeded to turn around to go back to the kerb. So I'm facing outward to the street, and my right foot - I turned, and then - I had pointy shoes on, and the wheel of the lady's tyre grabbed the point of my shoe and as she's turning her wheel, the wheel is turning and it turned me and threw me onto the street, into the traffic lane. As her wheel was turning, she - her car threw me, the wheel threw me down onto the ground." (T 29-30)
The plaintiff said she was sitting on the roadway facing the vehicle. The car had not left the parking space by more than about twelve inches, as the driver had stopped immediately after she heard the plaintiff call out.
In cross-examination, the plaintiff agreed that she had never been to Cessnock before moving there to live, some six weeks prior to the accident, and that she had only ever travelled through the town. She was however aware that Vincent Street was the main street of Cessnock and that it was very busy (T 53), particularly at lunchtime (T 54).
The plaintiff agreed that she was hit by the front right tyre, not the front part of the vehicle (T 61). She was then asked:
"Q. What I want to suggest to you that you did in fact walk out beyond the line of the parked cars and onto the road, onto the lane surface itself, didn't you?
A. No.
Q. And when you did that, you walked out onto the roadway before realising that a truck, a large truck, was coming from your left in the direction south to north. That's right, isn't it?
A. No.
Q. And what you did was, when you realised that you couldn't make it across the road there, you stepped backwards towards the kerb from which you had come, didn't you?
A. No.
Q. Which bit do you not agree with in that proposition?
A. All of it." (T 61-62)
The plaintiff denied that she had walked backwards. She was shown Exhibit 3, where she had written that she "proceeded backwards". She said:
"Q. Can we take it, Ms Davis, that given that this version given to Mr Schipp a little over four weeks after the accident was signed by you or declared by you to be the truth that the fact of the matter is what is described in paragraph 16, that you proceeded backwards to the sidewalk is, in fact, the truth?
A. I don't know if I am supposed to explain this in any other way other than a yes or no, but I feel the need that I need to. When I said "backward" I meant actually turning around and going backwards to the sidewalk.
Q. But you see I didn't ask you that in the first place. I simply asked whether you agreed with--
A. It wasn't me walking backwards.
Q. Just a minute. I simply asked you whether you agreed with - before you knew it was in paragraph 16 of your claim form - what was written there and you said you didn't agree with that. Isn't that right?
A. Because I wasn't actually walking backwards and I thought that was what you were saying.
Q. What you are now saying is, and a fair reading of paragraph 16 would suggest that you were actually walking backwards. Isn't that right?
A. No.
Q. You see that's exactly what happened. You walked backwards into the side of the vehicle that had begun to move out from behind you from the kerb, didn't you?
A. No." (T 65)
The plaintiff agreed that she did not notice whether there was anybody in the vehicle before stepping out onto the road (T 65). She also agreed that she had not seen the defendant's car indicate or start to move out before it came into collision with her (T 66 line 43). She denied that, if she had turned around to any significant degree to her right, she would have seen the car moving (T 66). She also denied walking out towards the middle of the road:
"Q. So you couldn't possibly have come into contact with the tyre of the car as your first point of contact if you, at all times, remained standing in front of the car, could you?
A. Yes.
Q. The bumper bar would hit you, wouldn't it?
A. No.
Q. This is a Commodore that we are talking about. It's not a car that has wheels right at the very front. It's not a motorbike with a tyre right at the leading edge of it, is it?
A. It's a Commodore.
Q. You would accept, wouldn't you, that a Commodore's wheel, in fact the wheel of most large modern cars, is not right at the very front of the vehicle, is it?
A. Yes.
Q. It's back some distance from the front of the vehicle, isn't it, from the front corner of the vehicle?
A. Yes.
Q. So I suggest to you, again, that the only way that you could have first made contact with the tyre of the vehicle is if you had stepped past the line of that vehicle onto the roadway, then the vehicle moved behind you and then you stepped back into it as it was pulling out from the kerb. Isn't that right?
A. No." (T 66)
The plaintiff was then asked about her observations as to her surroundings as follows:
"Q. Let me see if I understand. Do you say you were looking over the top of the parked car down to the pedestrian crossing?
A. I was looking at the people walking across and not actually at the top of the car.
Q. I will ask the question again and take your time in answering it. Do you say you were looking over the top of the parked car as you looked to the right down towards the pedestrian crossing?
A. Yes.
Q. Is it the case that you say the parked car was never out of your vision between the time when you stepped onto the road and the collision occurring?
A. My focus was on the people walking across the pedestrian crossing and not on the roof of the car.
Q. That may have been your focus but that's not quite what I asked you. What I am asking you is this. Do you say that the car was never out of your vision from the time that you stepped onto the road that day until you collided with the tyre of the Commodore?
A. It was - yeah, but it wasn't in full vision.
Q. Notwithstanding that, you had no appreciation that the car was moving until the moment immediately prior to the collision?
A. I didn't realise.
Q. If you had been looking in that direction you surely would have realised that the car was pulling out from the kerb, wouldn't you?
A. No.
Q. You understand, don't you, that what the car was in fact doing was pulling out from a parking space into the roadway? You understand that, don't you?
A. Yes.
Q. And in so doing it was moving forward and at an angle coming off the kerb. Correct?
A. Yes.
Q. And going very slowly?
A. Yes."
The plaintiff also disputed that she moved back from the roadway towards the gutter quite quickly (T 73-74).
It is difficult to understand the mechanics of the accident from the plaintiff's evidence. She says that she was standing in front, but not to any degree to the right of the car, and that the car's tyre somehow moved on her right foot as she "went to turn".
The accident was seen by two eyewitnesses. The first of these is Mr Dylan John Schubert, a driver sitting in the vehicle immediately behind the vehicle wanting to take the defendant's car's parking space. He had an unrestricted and close view of the circumstances of the accident. The second is Ms Julie Anne Preston, who was standing outside the Wentworth Hotel, facing the roadway in Vincent Street, at the time of the accident. She also had an unrestricted and close view of events.
The evidence of Mr Dylan John Schubert
Mr Schubert is a resident of Cessnock. He described the circumstances in which he was driving his vehicle along Vincent Street as follows:
"Q. What direction were you driving?
A. Southbound.
Q. As you drive southbound on Vincent Street, the Wentworth Hotel is on your left. Correct?
A. Yes. Correct.
Q. Now, as you were driving down Vincent Street, southbound with the Wentworth Hotel on your left, tell us what you saw.
A. I came to a stop because a car in front of me was going to take a carpark on the left. As the car on the left went to pull out, she's made contact with a pedestrian.
Q. In relation to the pedestrian that you've described, where was the pedestrian when you first saw them?
A. On the front right of the car.
Q. Did you see the pedestrian move at any stage?
A. She was walking backwards towards the front right of the car.
Q. Towards the front right of the car?
A. Yes.
Q. That's what you said? I'm just clarifying.
A. Yes.
Q. Before you saw the pedestrian walking backwards towards the front right of the car, had you seen the pedestrian on the road before that?
A. No.
Q. At about that time, did you notice any other traffic on Vincent Street?
A. There was a truck and some cars coming northbound.
Q. When you say "northbound", you mean the opposite direction to you?
A. Towards me, yes.
Q. Did you see the pedestrian come into contact with the car?
A. Yes.
Q. At the time of that contact, do you remember where the car was relative to the road?
A. It just pulled out maybe half a metre. Barely moving.
Q. When you say "just pulled out", you mean pulled out from the parking spot?
A. Yes, from the parking spot.
Q. Just so we're clear, it was you then one car in front?
A. Yes." (T 172-173)
He clarified in cross-examination:
"Q. The first time you saw her, was she standing still or was she moving? If she was moving, in what direction?
A. She was moving, walking backwards towards the front right of the car." (T 174)
Mr Schubert was not cross-examined about seeing the plaintiff walking backwards, despite volunteering this observation again in cross-examination (T 174 line 39):
"Q. The first time you saw her, was she standing still or was she moving? If she was moving, in what direction?
A. She was moving, walking backwards towards the front right of the car."
The evidence of Julie Anne Preston
Ms Julie Anne Preston was standing outside the Wentworth Hotel in close proximity to where these events occurred. She was talking to a friend called Charmane, whose back was to the street:
"Q. When you went out of the hotel onto Vincent Street, what did you do?
A. I stood there talking to one of my friends out the front of the hotel.
Q. In what direction were you facing when you were talking to one of your friends out the front of the hotel?
A. I was facing the road.
Q. Were you standing on the footpath on the same - well, I assume you're standing on the footpath, not on the road.
A. Yes, on the footpath.
Q. Were you standing on the footpath on the same side as the Wentworth Hotel or the opposite side?
A. Yes, the same side.
Q. You're facing towards the road, towards Vincent Street?
A. Yes.
Q. In what direction was your friend, with whom you're having this conversation, facing?
A. She was facing me, so her back was facing the road.
Q. What's her name?
A. Charmane.
Q. While you were having this conversation with Charmane, what did you see occur?
A. I seen a lady standing in front of the car to go across the road, and she walked out into the road and then she ran back to the car, and there was a lady sitting in the car that she was standing in front of, and as she went to go - the lady standing in front of the car, she went to cross onto the road. The lady in the car looked behind her to make sure there wasn't any traffic coming and she could pull out onto the road.
Q. What happened then?
A. The lady that was crossing the road ran back to the front of the car and the lady in the car hit the lady standing there.
Q. Let's just go through that a little bit at a time. The lady that you saw walk onto the road, where did you see her come from?
A. I don't know where she came from. I didn't see where she came from.
...
Q. Where was the pedestrian when you first saw her?
A. Standing in front of the car.
Q. Was she standing in front of the car with which she ultimately collided?
A. Yes.
Q. You saw her move from that position, you told us?
A. Yes.
Q. You said she went onto the roadway?
A. Yes.
Q. Can you describe how far she went onto the roadway?
A. She probably went out halfway.
Q. When you say "halfway", as we understand it, Vincent Street there has got a parking lane right next to the kerb, where cars park?
A. Yes.
Q. Then there's another lane for the traffic in one direction?
A. Yes.
Q. Then another lane for the traffic in the other direction?
A. Yes.
Q. Then a parking lane, then the footpath on the other side?
A. Yes.
Q. So when you say "about halfway", by reference to those lanes I just asked you about, what do you mean by "halfway"?
A. Out to the middle of where the cars drive." (T 166-167)
Ms Preston said the plaintiff had walked "nearly" to the line in the centre of Vincent Street:
"Q. Nearly the line? You mean the centre line?
A. Yes.
Q. Didn't cross it, out nearly to it. Is that what you're saying?
A. Yes.
Q. And once she got there, what happened in terms of her movement?
A. She ran back to the car.
Q. While this was taking place, did you see the car do anything?
A. The lady in the car looked back to see if there was any traffic coming before pulling out onto the road.
Q. Did you see the car move before the pedestrian collided with it?
A. No.
Q. Did you see the pedestrian and the car collide?
A. Yes.
Q. Did you notice any other traffic moving on the roadway at this time?
A. Not that I can remember." (T 167-168)
Ms Preston gave her name to one of the police officers who came to the scene, as the police officer in question was on his lunch break (T 168). She gave a statement to that police officer, which was not tendered.
In cross-examination, Ms Preston said that while she had had lunch at the hotel with friends, there had been "no drinking at all" (T 168). She repeated in cross-examination that the plaintiff had run back into the defendant's car. She could not remember whether the plaintiff ran back into the car in a backwards or forwards manner (T 169).
The evidence of the hotel employeess
In addition to these two eyewitnesses, two other witnesses, as well as the defendant, observed the CCTV footage from the Wentworth Hotel which had recorded the accident.
After the accident, the defendant went into the Wentworth Hotel, which had CCTV cameras installed monitoring and recording the outside street. The defendant knew the staff at the Wentworth Hotel, as she worked there. The defendant and both these witnesses examined the CCTV footages which had captured the accident in question. A challenge was brought to the entitlement of these witnesses to give evidence which is dealt with in more detail below.
The first witness who gave evidence concerning the CCTV footages was Mr Jason Fenton, the former licensee. He described where the CCTV cameras were located outside the hotel and the area which was covered by the CCTV footage. The camera in question was at the southern end of the outside of the hotel. He described the vision from the camera as follows:
"Q. Can you see the actual front of the hotel, the wall of the hotel where it meets the street, to the left?
A. Yes.
Q. Then if you look across to the other side of the screen, the righthand side of the screen, how far to the right can you - what's the furthest thing on the righthand side of the screen?
A. You can see shops on the other side. Like, you could see the street, plus shops on the other side.
Q. When you say "the street", do you mean Vincent Street?
A. That's correct.
Q. And shops on the other side of Vincent Street?
A. Yep.
Q. How well you could see these things would depend upon the amount of traffic going past, I would imagine, from time to time.
A. Yes, that's correct." (T 178)
He watched the footage on the same day as the accident, "not long after" (T 179) the events in question. He described what he saw as follows:
"A. Okay. We could see there was a truck coming down the other side of the road. You see Debbie's vehicle parked out in front of the camera. You see the lady went out sort of halfway out across the road, came back, sort of stepped back and sort of - I think she went to the ground and you don't see anything due to the car.
CUMMINGS
Q. Let me just go through that with you a little more slowly. You said something about a truck being in the road?
A. Yep.
Q. What direction was the truck travelling?
A. North.
Q. We're talking about it travelling north in Vincent Street?
A. That's correct.
Q. You described Debbie's car. Whereabouts was Debbie's car in the footage that you saw?
A. It was parked right on the near side of the road.
EXHIBIT 12 SHOWN TO WITNESS
WITNESS: Probably a little bit back to where that car is parked, that blue one. Around about the same position, a little bit further back, going to the north.
CUMMINGS
Q. Around about the same position or a little bit further back as the blue car. Is that right?
A. Yeah.
Q. Facing the same way as the blue car?
A. Yep.
Q. You said that you saw a lady also in the footage?
A. That's correct.
Q. Where was she when you first saw her in the footage?
A. From what I can recall from the footage, I couldn't - she was sort of to the front of the vehicle. I can only sort of vaguely remember her being out on the road and coming back.
Q. On that road there is a parking lane and then a traffic lane. When you say "out on the road"
A. No, she was on the traffic lane, in the traffic lane.
Q. Then you described her coming back, I think you said, walking back. Where was she walking back from?
A. She was stepping back towards the parking lane.
Q. Did you see any collision between her and Debbie's car?
A. I couldn't actually see the collision. I could see that she had stepped back into the wheel of the car. That's what it looked like from my" (T 180-181)
In cross-examination, Mr Fenton explained that the purpose of the CCTV cameras was because they were a "late trade hotel" (T 184) and a wide scope is necessary so that if people left the hotel they could watch them go (T 184).
It was put to Mr Fenton that he would have had difficulty estimating distances or seeing as well as if he had been in the street watching the actual event:
"Q. Well, I suggest to you that on a flat screen television or video or monitor or whatever you call it, it's difficult to establish or be sure about depth, as in 3D. It's a one dimensional surface, isn't it?
A. Yes.
Q. Whereas you've got two eyes, you walk outside and your two eyes can deal with depth of field. So distance is a little bit more difficult, isn't it, on a flat screen than if you're outside actually viewing the accident?
A. It's pretty clear. Like, you could - I suppose you go off white lines on roads and stuff like that. Like, you could tell different distances." (T 185)
In cross-examination Mr Fenton denied that the plaintiff turned (T 186):
"Q. I suggest to you that seconds after that, what happened was that the pedestrian turned, and as she turned the collision occurred. Do you agree with that?
A. No, she didn't turn."
Apart from this question, he was not challenged as to the mechanics of the accident and whether the plaintiff walked backwards. A Mr Jessup, another hotel employee, gave evidence of having watched the CCTV footage with Mr Fenton.
The evidence of the witnesses who observed the CCTV footage was challenged on two bases. The first is that the CCTV footage was not able to be retained by Mr Fenton, whose evidence was that the recording system had only just been installed and he was uncertain how to prevent automatic deletion (T 177-179).
Given the uncertainties of their observation of an incident on CCTV, particularly since the footage in question had been lost, I shall give little weight to their evidence. The sole point I will note is that the version of events given by these two witnesses and by the defendant (who also saw the CCTV footage) is that their evidence is consistent with the evidence of Mr Schubert, namely that the plaintiff moved backwards.
The defendant's evidence
The defendant's evidence was that she got into her car, which was parked in the "first car spot" on the same side of the Wentworth Hotel facing south (T 151), and as she turned around to look over her shoulder, she observed a car waiting with its indicator on to take her parking space. She put the car into full lock and "just started to creep out of the car spot and that's when I felt the bump" (T 152 lines 15-17). She went on to say:
"When I felt the bump I looked out the window and that's when I seen [sic] the lady's head falling near the rear-view window on the side of the car." (T 152 lines 33-34)
She described the plaintiff's head as being underneath the rear-view mirror on the outside of her car. She said that her car was going so slowly that she did not even know if it would have registered on her speedometer (T 153).
She also observed a crease above the wheel arch and some paint which had come off the front spoiler just right next to the wheel on the front bumper. This helps to determine the likely place of impact.
In cross-examination the defendant agreed that she had not seen the plaintiff on the roadway until after she had hit her (T 156), although her vision of the roadway was unobstructed. It was put to her that a pedestrian had walked in front of her car and remained in the vicinity of the front of her car at about the right hand front headlight for a short period of time (T 157), and that the pedestrian in question was in very close vicinity of the vehicle just prior to the accident. The defendant said that after she finished looking over her shoulder and saw the road clear, then she put the car on full lock so that the car can come out from its parking position (T 159). At this stage the defendant was looking at the direction in which she was going. She was asked the following at T 161:
"Q. How is it that you didn't see this lady who you ran over?
A. When she's walked backwards off the road, because I did see the video surveillance later on, and she's walked backwards off the road, and I'd say when she stood there she's been in my blind spot where the pillar is, where the pillar comes down."
Conclusions concerning liability
The accident could not have had happened as the plaintiff claims. Her explanation that she was standing in front of, but not to any degree to the right of, the car, cannot explain how her foot was caught by the wheel. If she had been standing beside the wheel, she would have been needed to be standing so close to the vehicle that her body would have been blocking the view out the driver's window and partially obscuring the view from the front windscreen.
The plaintiff's oral evidence is also inconsistent with her claim to the police officer (Exhibit 2) that she was "standing on the gutter edge between the two parked cars". If that were so she could not have caught her foot under the tyre; she would have been hit by the front bumper.
Finally, the plaintiff's evidence is inconsistent with the evidence of the two eyewitnesses, Mr Schubert and Ms Preston, both of whom had an unrestricted view of the accident, and who gave their evidence in clear and succinct fashion. Both described a person in the middle of the road running or stepping backwards in a sudden movement.
All of the evidence points to a pedestrian unfamiliar with the road, looking for a shop on the other side of the street, inattentive to the extremely busy state of the road, beyond noting that "visibility was bad" (T 29), going to the middle of the road before realising she was in danger, hesitating momentarily and then running or stepping backwards very quickly, without looking, into the southbound traffic lane. At this stage she would have been moving backwards directly into the path of vehicles in the southbound traffic lane, as well as directly into the path of a vehicle which had already indicated its intention to move out into the traffic.
As the plaintiff moved back in this sudden and unexpected manoeuvre, the defendant, who was looking at the southbound traffic lane from her vantage point of the vehicle, was already engaged in moving. It was too late to see the plaintiff; the defendant had already put on her indicator and looked over her right shoulder to see nothing coming, using her rear vision mirror.
I find that the plaintiff caused the accident by moving very quickly, backwards from the middle of the road and into the path of the defendant's vehicle. The fact that the defendant did not see the plaintiff at any time prior to the collision may be explained by the plaintiff's quick and sudden movements taking place outside the timeframe of the defendant's checking in all relevant directions before pulling out from the kerb.
The facts in this case are similar to "darting out" cases (Derrick v Cheung (2001) 181 ALR 301 at 305). In Ma v Keane [2003] NSWCA 50 at [23], the court noted that in many of the cases where a driver had been found to be liable, some actual behaviour of a plaintiff observed by the defendant driver may alert him or her to take particular steps in terms of reducing speed or otherwise. That was not the case here. There was no warning of the plaintiff's intentions, even if the defendant had observed her in the roadway.
The facts in Ma v Keane, supra, were very similar. The plaintiff had stopped her crossing at the centre of the road and looked in the direction of the oncoming car, in which case it could not be reasonably foreseeable that she would then restart her crossing at a fast pace. It would be even less likely for a motorist to expect a pedestrian who had travelled to the centre of the road would suddenly move backwards, without warning, in the direction from which she had come.
Both counsel agreed that while the law requires a driver to pay reasonable attention to all that is happening on and near the roadway that may presents a source of danger (Manley v Alexander [2005] HCA 79 at [11]), the touchstone remains what is reasonable.
In relation to both the question of breach and causation, ss 5D(1)(a) and 5E Civil Liability Act 2002 (NSW), the plaintiff bears the onus of proof. The plaintiff must establish that the defendant had the opportunity to see the plaintiff and failed to do so (Jarzebski v Jiminez [2006] NSWCA 104 at [19]-[22]). In addition, as the plaintiff moved backwards from a position in which she was either outside the scope of the defendant's vision or obscured by the motor vehicle's pillar, the plaintiff must establish that an act or omission on the part of the defendant, whose vehicle was already in motion, was productive of the collision.
I have taken into account, when arriving at my findings of fact, that the duty owed to a pedestrian by a driver is a high one. Sheller JA in Ma v Keane, supra, set out the relevant principles as follows (at [8]-[11]):
"[8] In Cotton v Commission for Road Transport and Tramways (1942) 43 SR (NSW) 66 Jordan CJ said at 68:
"... the driver of a vehicle in a busy street is entitled to act on the assumption that pedestrians whom he is approaching and who have the appearance of normal adults will take normal precautions for their own safety, unless there is something to indicate the contrary: Trompp v Liddle (1941) SR 108."
[9] More recently in Stocks v Baldwin (1996) 24 MVR 416 Mahoney P stressed that the reasonable person would accept that it is not the duty of a driver so to drive that there is no foreseeable risk of injury to others, to think otherwise would be to ignore the realities of city life. However, four things need to be borne in mind: the extent of the damage that may be done by a driver to a pedestrian, the degree of likelihood that a pedestrian will suddenly come into the path of an ongoing vehicle, the consequence of the extent of the precautions which a driver must take against that eventuality and the extent of what a driver is able to do when confronted with such a danger. His Honour added that pedestrians sometimes act carelessly with sufficient frequency for a prudent driver to take account of it.
[10] In Albert v The Nominal Defendant (1999) 29 MVR 107 at 109 Priestley JA said:
"The bulk of these cases deal with situations where a motorist has had some reason, because of the surrounding circumstances, to be aware that pedestrians are likely to behave carelessly. The cases where the injured pedestrian has succeeded as plaintiff are cases where it has been established that the motorist, although driving at a pace and in a place which are lawful, has nevertheless been put on notice by conduct which the motorist did see or should have seen, that a pedestrian might act in such a way as to put that pedestrian in danger from the motorist."
[11] In Derrick v Cheung (2001) 181 ALR 301 at 305 the High Court remarked that Stocks v Baldwin depended on its own facts. "What was unlikely in this case was that an unattended infant of such tender years would dart in front of a relatively slow moving vehicle on a busy road in such a way that a collision was, to all intents and purposes, unavoidable.""
Sheller JA considered that the facts of Ma v Keane, supra, fell into a category described by Priestley JA in Tsuji v Metromix Pty Ltd (1998) 28 MVR 401 at 404 "where a driver is suddenly confronted with a pedestrian whom the driver had no prior reason to think might suddenly step in front of the vehicle. In that category of case, depending on the precise facts, drivers are frequently found not to have been relevantly negligent".
Conclusions concerning liability
By reason of the evidence of the witnesses, the concession by the plaintiff in the accident notification form and the only logical way that the accident may be explained to have occurred, I find that the accident occurred because the defendant was suddenly confronted with a pedestrian whom the defendant had no prior reason to think might suddenly step in front of a vehicle about to move into the traffic lane. Accordingly the plaintiff has not established breach of duty.
In the event that I have erred in making such a finding, I should briefly note my findings in relation to contributory negligence.
There was a pedestrian crossing with lights 60 metres away, and as Vincent Street is one of the busiest streets in Cessnock, there was heavy traffic in both lanes, including a number of trucks. The plaintiff, beyond noting that visibility was bad, never looked where she was going. She crossed to the middle of the road in circumstances of considerable danger. She ran or stepped quickly back, without looking, in circumstances where, if she had done so, she would have seen a stationary vehicle waiting to take the defendant's parking space, and the defendant in the driver's seat, with the car indicator flashing.
For the plaintiff even to have ventured out onto such a busy road amongst heavy traffic was hazardous. She ran or stepped backwards across the road without looking, foolhardiness of the most dangerous kind. This is one of those rare cases where the culpability of the plaintiff should be assessed at 100%.
In the event that I have erred in these findings, I now consider the plaintiff's claim on the basis of blameless accident.
Blameless accident
Section 7B of the Act provides:
"7B Liability for damages in case of blameless motor accident
(1) The death of or injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.
Note: Section 3B defines what is meant by a motor vehicle having motor accident insurance cover for a motor accident.
(2) If the blameless motor accident involved more than one motor vehicle that has motor accident insurance cover for the accident, the death or injury is deemed to have been caused by the fault of the owner or driver of each of those motor vehicles in the use or operation of the vehicle."
The relevant principles are explained by Tobias AJA in Axiak v Ingram, supra, at [83]-[87] as follows:
"[83] I would accept the respondent's submission that the exercise called for in Prodrebersek can have no application to a case such as the present. Part 1.2 of the Act proceeds upon the assumption that the defendant driver is not at fault. Accordingly, comparisons of culpability and of the relevant importance of the acts of the parties in causing the first appellant's injuries is inappropriate.
[84] I would also accept the respondent's submission that the deeming provision of s 7B(1) has no part to play in the present exercise. That is because it is simply impossible to determine the degree of fault which is to be attributed to the driver which, as submitted by the respondent, may be assumed to be minuscule. Although I accept that submission, it does no more than illustrate the inappropriateness of applying the principles in Prodrebersek.
[85] It follows that the concept of "contributory negligence" in s 7F of the Act has to be applied in a different manner to the usual comparative analysis of responsibility undertaken in personal injuries cases. This can be done consistently with the objectives of the legislation by inquiring how far the plaintiff has departed from the standard of care he or she is required to observe in the interests of his or her own safety. The reduction of damages under Div 1 of Pt 1.2 by reason of contributory negligence will therefore be determined by assessing the extent to which the plaintiff departed from that standard.
[86] It is for this reason that I do not accept the respondent's submission that the first appellant, being the sole cause of the accident and her injuries, mandates a finding of contributory negligence of 100%. On the respondent's argument, a plaintiff guilty of contributory negligence in a "blameless motor accident" case must always be the sole cause of his or her injuries with the consequence that in every case there would be a finding of 100% contributory negligence. The legislature could not have intended such a result.
[87] In my view one obtains some guidance as to the appropriate approach from what was said by McHugh J in Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [34] where his Honour referred to
the established rule that "[i]n theory, a plaintiff is required to conform to the same standard of care as a defendant, with due allowance for the fact that here the enquiry is directed to what is reasonable for his own safety rather than the safety of others". No one would now suggest that the standard of care expected of a defendant is that which the defendant "is in fact capable of". To introduce such a standard into the law of contributory negligence would not only contradict the objective test of contributory negligence, it would impose on tribunals of fact the almost insuperable task of determining what standard of care the plaintiff was "in fact capable of"."
The plaintiff's submission is that this is a "pedestrian versus motor vehicle case" (T 229) and that when the plaintiff got to the right hand fender of the defendant's vehicle, she turned and the motor vehicle ran over her right leg. It was submitted that the evidence showed no mention of running and that the plaintiff had simply taken one step backwards (T 229). In practical terms, if the plaintiff was in the middle of the road as described by the eyewitnesses, and conceded by the plaintiff herself, the distance she covered in order to arrive in front of the defendant's car is not difficult to estimate, as it would be the width of the traffic lane.
Mr Dilworth (T 231) described the evidence of the witnesses for the defendant as being that the defendant was "almost not out of the parking space, and so this pedestrian has moved the width of the road in a matter of seconds going backwards". He urged me to reject this evidence and accept the plaintiff's version of events. As indicated above, I have not accepted her version of how the accident occurred.
The defendant submits, and I accept, that from the evidence given by the witnesses to the accident, the departure from the standard of care imposed by s 7B on the plaintiff is such as to warrant a 100% finding. Counsel for the defendant draws my attention to the following five factors (defendant's written submissions, paragraph 25):
(a) The Plaintiff entered the roadway quickly with the obvious intention to cross;
(b) She took no account of the traffic coming the other way (the truck) when entering the roadway - it must have been visible to a prudent pedestrian;
(c) She did not bother to look as to whether the defendant was in her vehicle, whether the engine was running (as it must have been at some stage before the accident), whether her indicator was on, whether the traffic to her right had stopped for the defendant to leave the kerb - all signs of the defendant's proposed conduct;
(d) She moved quickly onto the road and then suddenly and quickly stepped or ran backwards without looking or turning;
(e) She stepped backwards into the side of the defendant's car with her foot making first contact with the tyre at a time when the defendant's car was barely moving off.
In Axiak v Ingram, supra, the court set aside a 100% finding. The facts of that case were, however, very different. In particular, the court took into account that 50% was an appropriate value judgment having regard to a 14 year old pedestrian who was darting out from behind a school bus. The facts in the present case are far stronger, as the plaintiff is an adult who showed complete disregard for other road users and was the "sole cause of the accident" (Axiak v Ingram, supra, at [86]).
Accordingly, a reduction of 100% is called for in relation to the s 7B claim.
I shall briefly note my findings in relation to quantum. In the course of these findings, I have made some brief findings in relation to the plaintiff's credit. These are findings which the defendant also relied upon in support of her claim that the plaintiff's version of the accident should not be accepted, but I was satisfied by the evidence of the witnesses to the accident, and that the plaintiff's credit was not an issue I needed to rely upon on the issue of liability.
Non-economic loss
I should first note my findings as to the plaintiff's credit. The plaintiff's credit was attacked on three bases:
(a) Surveillance films showing her to be able to perform tasks she had claimed she could not do;
(b) A claim for past and future economic loss which the defendant submitted was not simply inconsistent with her actual financial loss but implausible; and,
(c) Inconsistent statements concerning her financial position for the purpose of obtaining compensation from Victims Services.
Surveillance film of the plaintiff
Surveillance film of the plaintiff was shown. An objection to this material being shown was taken: r 31.10 Uniform Civil Procedure Rules 2004 (NSW).
I allowed the surveillance film to be tendered by reason of the serious credit issues put to the plaintiff in the course of cross-examination. The circumstances in which surveillance film may be permitted to be tendered notwithstanding no prior notice being given to the party are discussed in Australian Postal Corporation v Bessey [2001] FCA 266; Jaber v Rockdale City Council (2008) Aust Torts Reports ¶81-952 and Halpin v Lumley General Insurance Ltd [2009] NSWCA 372.
In Halpin v Lumley General Insurance Ltd, supra, Sackville AJA, with whom Tobias JA agreed, stated (at [101], [106]-[107]):
"[101] There is no inconsistency between these statements of principle and the existence of a power, exercisable for good cause in appropriate circumstances, to direct that a party may withhold affidavits until trial. The making of such a direction does not imply that the trial is to be conducted "by ambush", nor that the party seeking the direction has failed to co-operate in identifying and elucidating the issues in dispute. On the contrary, the statutory criteria that must be taken into account for a direction to be made should ensure that the issues are clearly defined and that the party seeking the directions demonstrates that the "dictates of justice" will be served by the direction.
...
[106] Boyes v Colins does not support the proposition that a court in New South Wales has no power to make a direction authorising a party to withhold material that might be adduced in evidence from the other party until the trial. Nor does the judgment identify the "persuasive grounds" that would be necessary to displace the "bias" towards disclosure underlying O 36, r 4. It was enough for the Court in Boyes to point to circumstances, such as the fact that there was "every chance" that the trial would have to be adjourned and that the plaintiff had already committed herself as to the nature and extent of her disabilities (at 142 [62], 145 [73]), suggesting that a departure from the general rule was not warranted.
Conclusion on power
[107] For these reasons I conclude that courts in New South Wales have power under the Civil Procedure Act and the Uniform Civil Procedure Rules to make orders relieving one party to civil litigation from complying, in whole or in part, with directions that would otherwise require that party to disclose to the other in advance of the trial all affidavits and reports to be adduced in evidence at the trial. The sources of such a power include, (although they are not necessarily limited to) Civil Procedure Act, s 61(1), s 61(2)(c) and Uniform Civil Procedure Rules, r 2.1, r 2.3. In exercising the power, a court is required to take into account the overriding purpose of the Civil Procedure Act and the Uniform Civil Procedure Rules stated in s 56(1) of the Civil Procedure Act and the objects identified in s 57(1). It is also necessary to take into account, insofar as relevant, the object of minimising delay, within the limitations outlined in s 59 of the Civil Procedure Act and the principle of proportionality embodied in s 60. The court may also have regard to the matters specified in s 58(2), to the extent it considers those matters relevant. As I have explained, a decision in a particular case is likely to require a weighing of considerations that will not always be easy to reconcile."
In a separate judgment Basten JA, agreed with the orders proposed stating (at [31]):
"The reasonable entitlement of a defendant to preserve pre-trial confidentiality in the results of its investigations, in the face of suspected fraud, remains a legitimate interest. The provisions do not give rise to an obligation on the part of all parties in all circumstances to place all their cards on the table before the trial commences. If that were so, cross-examination would need to be conducted by questions on notice. In some cases the uncovering of deceit or fraud might become significantly more difficult. There is no suggestion that the provisions relied upon were intended in any sense to be a fraudsters charter."
The plaintiff made a claim for economic loss in the form of a report from Dolman Bateman & Associates dated 13 December 2011 (MFI 1). Their report, based on a total inability of the plaintiff ever to work again, was formulated as being for many millions of dollars. Although this claim was abandoned during the hearing, it was a claim that the defendant came to court to meet. The size of the plaintiff's claim for future economic loss alone would be a factor to take into account when granting leave to rely upon surveillance film.
Secondly, an important part of demeanour in the witness box in personal injury actions is that it may involve seeing the plaintiff move into and out of the witness box, or assessing claims of inability to walk without a limp or perform certain tasks. A trial judge may be deprived of the benefit of observation of, for example, an assumed limp, if surveillance video has been shown to the plaintiff beforehand.
Although the plaintiff limped into and out of the witness box and described herself as unable to walk for long periods without pain, surveillance films showed her walking briskly. The plaintiff said she was only able to walk briskly on the filmed occasion because she was wearing sports shoes, but agreed, after a closer look at the surveillance film, that she was in fact wearing high heels.
The surveillance film gives some support to the claim that the plaintiff was exaggerating the degree of disability she suffered.
An additional basis for admission of the film was that documents were tendered which cast doubt upon the plaintiff's likelihood of being an honest witness, namely statements she had made in other proceedings for compensation.
Inconsistent claims concerning the plaintiff's financial situation
The plaintiff was also cross-examined about claims she had made to Victim Services asserting that her husband, her ex-de facto, her father and stepmother had maltreated her. This included allegations of the most serious kind in relation to her former husband, who she said had committed so many crimes "onto me and my three children it would have been an impossible [sic] for me to include and correlate all documents with this statement" (Exhibit 11, p 5). She made similar allegations in relation to her subsequent partner, a Mr Mahoney, and in relation to her father and stepmother. The plaintiff's former husband was awarded custody of their children and they continue to live with him.
In the course of these applications there were repeated statements on behalf of the plaintiff that she was "in dire financial circumstances" (letter of Gary Cleary & Associates, 19 March 2008, Exhibit 7). Mr Cleary went on to state:
"On our instructions, she will not have sufficient funds to secure any alternative accommodation. She is due to vacate the residence on 20 March 2008 and has debts in excess of $24,000, with no significant assets and no income other than Centrelink benefits."
A list of those debts totalling $27,227.79 is attached to this letter.
This is consistent with the plaintiff's tax returns for the period 2005 to 2008. The only year in which she earned any income was 2009, the financial year in which she suffered her accident the subject of these proceedings.
Inconsistent statements concerning financial circumstances are matters of concern where some financial benefit may be gained from such statements.
The plaintiff's non-economic loss - Her general health prior to the accident
Although the plaintiff was in good physical health generally prior to the accident, she has a long history of severe psychiatric illness. She has been on a disability pension since 1998 on the basis of catatonia and schizoaffective disorder (report of Kathryn Tiffen, Exhibit 1, tab 1). While she was re-hospitalised in 2012, six months after her son attempted suicide, she has not required any further treatment in relation to this, and has continued to live in the community, although for much of the time since her accident she has been living in a car or in a caravan (report of Professor Mattick, Exhibit 1, page 52). Apart from her hospitalisation in July 2012, which was precipitated by family pressures as well as self reduction of her medication (Exhibit 1, page 83), as the plaintiff herself agreed in cross-examination (T 49), there is no evidence of psychological or psychiatric evidence from the injury. The plaintiff said she felt some increase in anxiety levels while crossing the road (T 37-38). Dr Parmegiani diagnosed a mild adjustment order in 2010. Dr Lewin (Exhibit 1, p 85-86) considers this has resolved. I agree with this finding.
Evidence of the plaintiff's physical injuries, although scant, demonstrates that she exceeds the 10% WPI on the basis of:
(a) Quadriceps muscle wasting (2 cm);
(b) 10 degree loss of extension of knee;
(c) Slight rotational deformity of right knee;
(d) Scarring.
Dr Cummine has provided two reports, the most recent being November 2012. He considers there is "some slight exaggeration" in relation to pain and disability in her right knee. He observed her walking in the surgery and noting that her right knee straightened fully during gait. He considered, however, there was a direct relationship between the accident and the wasting in her right thigh and calf, as well as the scarring and slight dysaesthesia, but did not consider that her spine pain was related (Exhibit 1, p 101).
I have noted and read Dr Dowda's MAS assessment of March 2012. The plaintiff's injury to her leg warrants compensation in the range proposed by the defendant.
I am satisfied, however, that the plaintiff's complaints concerning her right knee are difficult to accept. Dr Cummine initially stated that he had not seen recent x-rays of her knee and that she may be at some risk of developing premature post-traumatic osteoarthritis; if so "she may be a candidate for a total knee replacement". He went on to add, "review of more recent imaging studies would be helpful" (Exhibit 1, p 91). Dr Cummine was then given a subsequent x-ray, which he discusses in his report of 8 November 2012 (Exhibit 1, p 97). He comments (Exhibit 1, p 99):
"Significantly, neither of the x-rays taken on 12.5.11 or at arthroscopy is there any record of osteoarthritis being present, particularly in the lateral compartment, and to a lesser extent the medical compartment, with the initial fracture involving both tibial plateaus."
Dr Cummine goes on to add (Exhibit 1, p 100) that the plaintiff's condition had stabilised and that the right knee straightened fully. This paints a clear picture of a knee which does not require replacement in the future.
The plaintiff relies upon a two-sentence report of Dr Hellman (Exhibit A, tab 9), which states:
"Caroline [sic] has had a traumatic injury and as such may require a knee replacement in the future.
Costs of such procedure would be in the vicinity of approximately $30000.00."
No further explanation as to why the plaintiff "may" require this operation is provided. Conformably with the principles set out by the Court of Appeal in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, I reject Dr Hellman's report, on the basis that the information upon which this opinion is based is not disclosed, nor is the reasoning behind making these statements. I prefer the careful analysis of Dr Cummine, who has seen the plaintiff twice, and who has carefully considered the x-rays, and discounted this possibility. Dr Hellman makes no reference to this material.
Accordingly I am satisfied that there is no injury requiring a knee replacement.
The claim which is made by the plaintiff is for $150,000. The defendant concedes that the plaintiff exceeds 10% WPI and submits that an appropriate sum is $80,000.
Taking all of the above into account, I am satisfied that non-economic loss, if awarded, would be $80,000.
Past out-of-pocket expenses
The defendant concedes that past out-of-pocket of $8,612.75 have been paid. The plaintiff makes a claim for $10,000. The parties tell me that out-of-pocket expenses are agreed, and I assume that this mean that the figure of $8,612.75 is correct.
Past economic loss
The plaintiff has been in receipt of a disability pension since 1998. She earned additional money working as a cleaner. No claim is made in relation to the disability pension, which the plaintiff continues to receive, but a claim for $240 per week is made in relation to the loss of her earnings, totalling $49,920. It is acknowledged that she had no superannuation under the Commonwealth scheme and no claim for past superannuation is made.
The plaintiff relied upon the summary of her tax returns prepared by Dolman Bateman & Co Pty Ltd (Exhibit B).
A more realistic claim is put forward by the defendant, namely the allowance of six months of loss of income at 2008-2009 pre-accident rate of $240 a week and a further three months after surgery in 2011, which would total $9,360.
Having regard to the plaintiff's tax return in 2009, the only year the plaintiff earned any income of significance, this would be putting the plaintiff's claim for past economic loss at its most optimistic. In real terms, as the plaintiff's tax return show, she has earned little or no money for most of her adult life. She was unable to work for a period of at least six months after the accident, and a further three months after surgery in 2011. It is difficult to ascertain what kind of economic loss this entails. The figure of $240 a week is largely artificial: Jones v Bradley [2003] NSWCA 81 at [194]. It is my view that the appropriate course to take is to award a lump sum for past economic loss of $10,000, on the basis that the plaintiff has in the past on occasions, such as her income in 2006 for Australian Independent Contractors Agency Pty Ltd (see Exhibit B) of $6,397, while in other years she has not earned any income. A cushion amount of $10,000 would reflect the level of economic loss suffered by the plaintiff in relation to her past claim. In making this finding, I have been guided by the findings of Dr Lewin (Exhibit 1, p 87) who explains:
"During the course of the examination, Ms Davis expressed concern that she has not been able to work. I noted the long-term history of employment. Ms Davis has suffered a chronic psychiatric illness. Most people who suffer from such an illness experience marked difficulties in the workplace and many are unable to work at all. The history of difficulties with employment experienced by Ms Davis is consistent with the long-term history of the psychotic illness."
Future economic loss
The plaintiff's most likely future circumstances but for the accident (s 126 of the Act) are that she would have continued to work sporadically as a cleaner or a psychic, and to receive a disability pension from the Commonwealth Government. The degree to which the plaintiff has suffered injuries, given her behaviour on the surveillance tape, indicate she is still capable of doing casual work of the kind that she was able to do before. The claim for future economic loss of $150,000, which is put forward as a maximum cushion, is completely out of all proportion to the plaintiff's loss of earning capacity.
Dr Cummine (Exhibit 1, p 92) considers the plaintiff is "fit for office, clerical and sedentary work, including light and selected duties if she was mentally capable of these activities. She would certainly be capable of continuing her work as a psychic". He notes that while she has a fixed flexion deformity, which means that there are some restrictions on her employability, she would be able to work in customer service activities, such as working in a telephone centre, as well as light forms of physical work. He goes on to opine in his more recent report of 8 November 2012 (Exhibit 1, p 100):
"From an orthopaedic perspective, she is fit for all forms of employment for which she [sic] academically qualified. I note that in the past she had worked as a cleaner and at a number of casual jobs, including that of a psychic.
I do not think there is any significant impairment to her employment as a result of the injury to her right knee. Although there is wasting of both the right thigh and the right calf, she still had an extremely functional right lower limb, and I do not think the degree of muscle wasting would prevent her employment even in activities such as cleaning."
Dr Zeman (Exhibit 1, p 118) considers the plaintiff "medically unfit for heavy manual work involving heavy lifting or excessive bending of the right knee", but said she is "fit for light to moderate physical work".
There are other problems in addition to the medical findings which I summarised as follows:
(a) The plaintiff has not established what work she was actually doing prior to the accident. According to her letters and statements to Victims Services throughout 2008, she was not working and financially desperate for a number of years.
(b) She told Dr Cummine she had not worked as a cleaner for two years prior to the accident (Exhibit 1, p 90). She appears to have been preoccupied at this stage by her science research.
(c) Her claim form (Exhibit C) does not refer to cleaning work.
(d) Her tax returns paint a picture of a person who works rarely; her 2009 tax return does not appear to relate to cleaning work.
(e) Her motor accident claim form (Exhibit 3) refers to working as a clairvoyant and a psychic, for which she claimed a loss of $650 per week. This amount is fanciful. There is no reference in her claim form to any work as a cleaner.
Counsel for the defendant submits that there is no documentary or other independent evidence of cleaning work. This would be relatively easy to obtain under subpoena had these documents had been mislaid by the plaintiff.
Counsel for the defendant also submits that the plaintiff's claim that she continuously operated a cleaning business from the year 2000 is "a complete fabrication", and refers me to statements to the contrary to Victims Services.
Where a party has been chronically unemployed for lengthy periods of time due to ill health, drug use or unrelated physical injuries, there are real difficulties in assessing the likely sum for future economic loss. In Harrison v Melhem (2008) 72 NSWLR 380, the trial judge considered that the plaintiff's earning capacity in circumstances where there was a 15 year history of prior drug use meant that the earning capacity should be reduced by 50%. The Court of Appeal concurred, although noting the dangers of them reducing the award further for vicissitudes.
Decisions in this court have also considered this issue. In Henderson v McLean [2007] NSWDC 199, the plaintiff had 22 years of working life as an adult, during only two of which she had actually worked. She was awarded a sum representing employment for 3.5 out of the following 22 years. From this sum, 15% was deducted for the usual vicissitudes (at [76]-[77]).
It is necessary to give careful consideration to the characteristics of the plaintiff's workforce history for the reasons explained by the Court of Appeal in Jones v Bradley, supra, at [193]. In particular, applying the average wage of full time workers may be inappropriate (at [194]) as was an assumption that a person even with a poor employment record would be employed for the rest of their life, which was considered "fanciful" (at [195]), citing Yip v Zreika (2001) 35 MVR 305. Awards of this nature had been set aside on appeal: Goodsell v Murphy (2002) 36 MVR 408; Yates v Jones (1990) Aust Torts Reports 81-009.
The plaintiff, who is almost 50 years of age, has received a disability pension for 15 years. She has few, if any, working skills.
Taking all of the above into account, I am of the view the most appropriate assessment is to adopt the same approach as that adopted by Rolfe DCJ in Henderson v McLean, supra, namely to assess the plaintiff as having an economic loss which in some way reflects these competing factors, including any potential for future superannuation.
Counsel for the defendant has pointed out that there is no evidence of the plaintiff having any work history apart from that disclosed in her income tax returns and asks me to draw inferences from the plaintiff's failure to produce any records of employment in relation to her early employment history, from her own possession or under subpoena. However, the plaintiff's lifestyle, which has included periods of living in a car or a caravan, is such that she is unlikely to have kept such documentation. Given the kind of work undertaken by the plaintiff (for example, working as a psychic), production of documents under subpoena seems unlikely.
Accordingly, I propose to err on the side of caution and to award a lump sum future cushion for economic loss in the sum of $50,000. This is substantially in line with concessions made by counsel for the defendant, although his estimate of future economic loss ($150,000) was put on the basis that this was the maximum cushion allowable. I consider that sum to be wholly out of proportion to the plaintiff's earning history over the previous 20 years.
Past domestic care and assistance - Griffiths v Kerkemeyer
The plaintiff claims $9,100 for past domestic care and assistance (Griffiths v Kerkemeyer (1977) 139 CLR 161).
She gave evidence as follows in examination in chief:
"Q. How long, how many hours
Q. was the care provided for?
A. Okay. It was approximately 20 hours a week for both of them, both Claire and Shaun.
Q. Yes.
A. And it started in 2009, I was under my sister's care. 2010 was my son, Shaun's care and also Claire. 2011 the same and
Q. Just stop before you get to 2011. That was the date of the fresh surgery, wasn't it?
A. That's right. That's right.
Q. But before that, you've given us evidence about the numbers of hours of care provided by the persons that her Honour indicated to you.
A. Yes.
Q. Did it extend from the date of the discharge from hospital until a date into the future, and if it did how long did it extend for?
A. Okay. After the second operation it was from May until - ongoing. May ongoing, and that exceeded - that went on for two years. No, it went on until July last year for the two of them.
Q. Okay.
A. And since
Q. Now the
A. Yes.
Q. Just before we get to May 2011, the care that was provided postaccident, that were prior to
A. Sure.
Q. the May 2011 surgery.
A. Yes.
Q. Did the care end prior to the May 2011 surgery or not?
A. No, it continued on with my two children. They were constant in care, caring for me." (T 72-73)
Future care is limited to a claim of $44,700 being for continued care by her children.
Section 141B of the Act provides:
"141B Maximum amount of damages for provision of certain attendant care services
(1) Compensation, included in an award of damages, for the value of attendant care services:
(a) which have been or are to be provided by another person to the person in whose favour the award is made, and
(b) for which the person in whose favour the award is made has not paid and is not liable to pay,
must not exceed the amount determined in accordance with this section.
(2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.
(3) Further, no compensation is to be awarded unless the services are provided (or to be provided):
(a) for at least 6 hours per week, and
(b) for a period of at least 6 consecutive months.
(4) If the services provided or to be provided are not less than 40 hours per week, the amount of compensation must not exceed:
(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:
(i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award-that quarter, or
(ii) in respect of the whole or any part of any other quarter-the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to thecourt making the award, or
(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.
(5) If the services provided or to be provided are less than 40 hours per week, the amount of compensation must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.
(6) Unless evidence is adduced to the contrary, the court is to assume that the value of the services is the maximum amount determined under subsection (4) or (5), as the case requires.
(7) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services."
There must be an award for attendant care services provided for six hours per week for six months consecutively (Hill v Forrester [2010] NSWCA 170).
The particularisation of the claim for past care is as follows:
From date of accident (20.03.2009)
Clare
5 hours per week
Sean
2 hours per week
Total
7 hours per week
To 22.09.2009 = 26 weeks x $25.00 per hour x 7 hours
Total - $4,550.00
From May 2011
Clare
5 hours per week
Sean
2 hours per week
Total
7 hours per week
To November 2012 = 26 weeks x $25.00 per hour x 7 hours
Total - $4,550.00
Totalling
$9,100
The plaintiff's evidence of 20 hours per week is not supported by the evidence of her daughter. While during the period that the plaintiff was unable to weight bear and on crutches, she came to stay in her daughter's home for one day a week, her daughter was employed full time.
I accept that the plaintiff's daughter performed up to five hours per week of work to assist the plaintiff, such as having the plaintiff's clothes washed in the washing machine, and that the plaintiff's son carried out a further two hours. The amount of time spent in the care of the plaintiff by her children quickly dropped down to three hours. For much of this time, the plaintiff was, according to her evidence, living in her car, by reason of her poor relationship with her former husband, who was never told by his children that she was visiting the house for one day a week while he was away at work.
The plaintiff's daughter was an impressive witness. She described the tasks she performed for her mother before leaving for work, and did so in a straightforward and unembellished fashion. It seems likely she has had to take a great deal of responsibility for the plaintiff in the past, and that this significantly increased when the plaintiff suffered her injury. In those circumstances, I would award $9,100 for past care.
However, the plaintiff requires no care in the future, for the reasons set out by Dr Zeman in his report of 20 March 2009 (Exhibit 1, p 110) and by Dr Cummine in his report of 15 November 2012 (I note Dr Cummine's concession at paragraph 9 of this report that some assistance would have been required after the accident: see Exhibit 1, p 101). As previously indicated, I am satisfied that, there is no likelihood that the plaintiff will require a knee replacement. Accordingly, my assessment for future domestic care is nil.
Future out-of-pocket expenses
The plaintiff claims total future medical and treatment expenses of $44,700, comprising of the following:
Date/Period
Medication
Total Cost per week
Present & continuing
Panadol/Panadeine Forte
$1.50 per week
Present & continuing
GP consultations
$65.00 per visit x 3 per year = $3.75 per week
Present & continuing
Specialists consultations
$150.00 per visit x 1 per year = $3.00 per week
SUB TOTAL
$8.25 x 910 = $7,500
Total right knee replacement
$30,000
Physiotherapy
Estimate $5,200
Psychologist
Estimate $2,000
The plaintiff will not require a knee replacement. Even on the plaintiff's evidence, the medical evidence referred to such a claim as a mere possibility, and a claim for the total sum should not have been made.
The plaintiff takes no medication, and has not consulted a general practitioner or specialist for some time concerning her injuries. The claims for a psychologist's assistance and physiotherapy are fanciful. The plaintiff has suffered only a mild response in 2010 to the motor vehicle accident from which she has completely recovered, according to Dr Lewin. Her complex psychiatric problems are of longstanding and inappropriate for psychological counselling.
I would award a cushion of $1,000 for future occasional pain medication or a visit to a general practitioner.
Orders
(1) Judgment for the defendant.
(2) Plaintiff pay defendant's costs.
(3) Liberty to restore in relation to costs.
(4) Exhibits retained for 28 days.
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Decision last updated: 26 June 2013
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