Elkodat v The Nominal Defendant

[2020] NSWDC 14

District Court

New South Wales

Medium Neutral Citation:	Elkodat v The Nominal Defendant [2020] NSWDC 14
Hearing dates:	15-18 October 2019; 11 November 2019; 25-26 November 2019
Date of orders:	14 February 2020
Decision date:	14 February 2020
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the defendant. (2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed. (3) Liberty to the parties to apply within 14 days for a different costs order to that in (2). (4) Exhibits to be returned in 28 days.
Catchwords:	Torts – negligence – motor vehicle accident – liability in issue – whether an accident occurred as claimed by the plaintiff – plaintiff has post-accident medical conditions and injuries unrelated to the alleged accident – extent of damages – extent of past loss of earnings and earning capacity and loss of future earning capacity – alleged disadvantaged position of The Nominal Defendant
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Motor Accidents Compensation Act 1999 (NSW) Road Rules 2014 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Briginshaw v Briginshaw (1938) 60 CLR 336 Croucher v Cachia [2016] NSWCA 132 Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 Dall v Choll [2018] NSWCA 219 Danckert v Tonkin [2015] NSWSC 1570 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Graham v Baker (1961) 106 CLR 340 Leung v Paul Mervyn Fordyce [2019] NSWSC 18 Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 Marien v Gardiner [2013] NSWCA 396 McPherson v Dowell [2018] NSWDC 348 New South Wales v Moss (2000) 54 NSWLR 536 Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 Sangha v Baxter [2009] NSWCA 78 Smith v Alone [2017] NSWCA 287 The Nominal Defendant v Cordin [2019] NSWCA 85 Watson v Foxman (1995) 49 NSWLR 315
Category:	Principal judgment
Parties:	Aiman Elkodat (Plaintiff) The Nominal Defendant (Defendant)
Representation:	Counsel: L Grey (Plaintiff) W Fitzsimmons SC (Defendant)   Solicitors: Mannah Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2018/00302488

Judgment

1. In these proceedings, the plaintiff, Mr Aiman Elkodat, seeks damages from the Nominal Defendant under the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) for personal injuries suffered by him alleged to have occurred as a result of the negligence of the driver of an unidentified vehicle which struck him whilst he was allegedly walking across a pedestrian crossing on 3 August 2015 in Ninth Avenue, Campsie in the State of New South Wales. It is alleged by the plaintiff that he was with his friend Mr George Savvas at the time of the accident. There is no issue between the parties that the plaintiff has undertaken due enquiry and search in relation to the unidentified vehicle. The defendant says that the plaintiff has not established his case to the required standard.

2. The plaintiff has not reached the impairment threshold of greater than 10% which permits the award of damages for non-economic loss under s 131 of MACA.

3. The plaintiff’s claim is for:

1. Past out-of-pocket expenses;

2. Future out-of-pocket expenses;

3. Past loss of wages and earning capacity;

4. Future loss of earning capacity;

5. Future loss of superannuation benefits;

6. Future commercial domestic assistance.

The pleadings and related documents

4. The plaintiff commenced the proceedings by way of a Statement of Claim filed on 28 September 2018. The plaintiff pleaded his case, in summary, in the Statement of Claim as follows:

1. At a time approximately between 7pm and 7:30pm on 3 August 2015, the plaintiff and his friend Mr Savvas were pedestrians crossing Ninth Avenue at Campsie in New South Wales on a marked pedestrian crossing adjacent to the intersection of Ninth Avenue with Second Avenue;

2. At all relevant times, the movement of traffic in all directions at the intersection of Ninth Avenue with Second Avenue was controlled by a roundabout;

3. Mr Savvas crossed the pedestrian crossing first, approximately two to three metres in front of the plaintiff, heading towards his motor vehicle parked on Ninth Avenue;

4. Approximately at the time when Mr Savvas reached the kerb on the north side of Ninth Avenue, and the plaintiff was still in the process of traversing the eastbound lane of Ninth Avenue, an unidentified motor vehicle, coming from the plaintiff’s left hand side, struck the plaintiff, causing him:

“To be thrown up onto the bonnet of the vehicle and into the windscreen of the motor vehicle and then onto the pedestrian crossing close to the north side of Ninth Avenue” (paragraph 5);

5. Following the collision, the driver of the vehicle that struck the plaintiff did not stop to render assistance to the plaintiff but drove off;

6. The plaintiff has made due enquiry and search to establish the identity of the motor vehicle but it cannot be established;

7. The collision was caused or contributed to by the failure of the driver of the unidentified motor vehicle which collided with the plaintiff to take reasonable precautions to avoid a foreseeable risk of injury to the plaintiff which was not insignificant;

8. As a result of the collision the plaintiff suffered injuries and disabilities;

9. The failure to take reasonable precautions by the driver of the unidentified vehicle caused the plaintiff’s injuries.

5. In a Statement of Particulars filed on 28 September 2018, the injuries referred to include fractures of the sixth to ninth ribs on the left side, soft tissue injuries to the cervical spine, upper thoracic spine, lumbar spine and left shoulder and facial injuries with scarring under the chin. Ongoing disabilities relating to the plaintiff’s injuries are particularised.

6. By a Defence filed on 29 October 2018, the defendant denied the allegations in the plaintiff’s Statement of Claim and specifically denied the allegation that an unidentified vehicle collided with the plaintiff as alleged (paragraph 2).

7. In due course, counsel for the plaintiff did not rely on the complete factual version of the accident in the originally filed Statement of Claim (the plaintiff being thrown onto the bonnet of the car in the accident and hitting the windscreen). An amended version of the Statement of Claim was filed, with leave, on 5 December 2019 after the conclusion of the hearing and submissions. The Amended Statement of Claim amended paragraph 5 of the originally filed Statement of Claim, deleted the claim that the collision with the unidentified vehicle caused the plaintiff to “be thrown up onto the bonnet of the vehicle and into the windscreen of the vehicle” and added new particulars generally consistent with the plaintiff’s oral evidence which will be set out below: see new paragraph 5 and the particulars to that paragraph. See also paragraphs 1-2 of the Amended Defence filed 18 December 2019.

8. At the commencement of the final hearing, counsel for the plaintiff raised concerns in relation to the Defence filed on 29 October 2018. Senior counsel for the defendant clarified the defendant’s position by saying that the defendant was The Nominal Defendant, there was no identified defendant who could give evidence of the accident and the defendant was putting the plaintiff to proof in relation to all aspects of the plaintiff’s claim including the accident.

9. The defendant later referred to and relied upon The Nominal Defendant v Cordin [2019] NSWCA 85. In that case The Nominal Defendant disputed liability, partly because it was alleged that the plaintiff had given an inconsistent version of the accident to a third party. Simpson AJA (with whom Leeming JA agreed) considered the position to be taken where The Nominal Defendant was a party at [101]-[111]. At [108] her Honour stated: “The common theme in these cases is that, where a party to proceedings is in a position of being forced to defend a claim while unable to call evidence to refute the claims against it, a careful approach to the evidence against it is to be taken before accepting the evidence of the plaintiff.” At [105] Simpson AJA held that the authorities cited to her did not establish that The Nominal Defendant is in “any special position.” Accordingly, in the present case a careful approach must be adopted in considering the evidence led on behalf of the plaintiff, particularly as to the circumstances of the accident.

Evidence for the plaintiff

Oral evidence from the plaintiff

10. The plaintiff gave evidence that he was born in October 1985 and was thus 34 years of age at the time of the final hearing. He lived at Greenacre in Sydney and was not employed.

11. He stated that he had completed Year 10 at high school. He then worked in kitchen installation for a few weeks before commencing a TAFE course in banking and finance which he did not complete as he did not like it.

12. The plaintiff stated that for two to three years from about 2002 to 2004 he worked for Sodexho at ANZ Stadium distributing goods to the various food and alcohol outlets. He said that there were about 50 outlets and he was one of 8 to 10 persons employed in that role. He said that Sodexho’s contract for the work was cancelled and his position was terminated.

13. In 2006-2008 he worked at a caryard undertaking cleaning of cars and delivery of the cars. This job was for about one and a half years and his position was terminated when the caryard closed down.

14. The plaintiff stated that in 2010 he purchased a bait and tackle shop in Greenacre as he liked fishing. This shop was run by him for three years and involved working long hours. On occasions, his father helped him in the shop. The plaintiff said that the business eventually went downhill and he sold it at a loss.

15. The plaintiff gave evidence that he was injured in 2011 when he was elbowed in the chest playing soccer. He attended Canterbury Hospital and had a chest x-ray and was given painkillers but the consequences of the injury only lasted one or two weeks.

16. The plaintiff stated that in 2013 to 2015 he was unemployed and was feeling down and depressed because his business had gone downhill. He said in 2015 he began asking in his community for work and eventually located a position at Moeco Excavation & Demolition Pty Ltd. The plaintiff said he was placed on a one month trial to see if they wanted to employ him. He said he was involved in demolition work which included pulling out shop and restaurant fitouts. He said that he worked at the job prior to the accident for about a week to a week and a half and got paid for his work. The plaintiff tendered as Exhibit C, documents from Moeco Excavation & Demolition Pty Ltd supporting the plaintiff’s claims of the job and the fact that he got paid for five days’ work at $250 per day. The plaintiff said that his accident brought his employment at Moeco Excavation & Demolition Pty Ltd to an end.

17. The plaintiff described his physical condition prior to the accident on 3 August 2015 as “pretty good”: T24.42. He said he had no problems with his arms, neck, back, ribs or with lifting. He said at Moeco he carried wheelbarrows of 20 to 30kg of sand as well as heavy sledgehammers.

18. The plaintiff gave evidence that on 3 August 2015 in the late afternoon he went with a friend, Mr George Savvas, in his car to look at a house for Mr Savvas’ sister. The house was located on Ninth Avenue at Campsie.

19. The plaintiff gave evidence that Mr Savvas parked his car on the other side of the road to the house and they crossed at a pedestrian crossing to look at the house. They then left to go back across the crossing to the parked car. Mr Savvas was walking in front and the plaintiff was walking behind. The plaintiff said it was dark at the time and he could not recall the degree of artificial light over the crossing.

20. The plaintiff said that he was then struck by a car: T28.8. At the time this occurred, the plaintiff said that Mr Savvas had walked across the crossing. He said he did not see or hear the car and did not see any lights: T28.20-.27. He said he was “in shock” and had little recollection of the circumstances when he was struck.

21. The plaintiff recalled looking up and seeing Mr Savvas trying to help him to his feet and he said, “What happened?”: T28.37. He said he was on the ground in the middle of the crossing at the time. The plaintiff gave evidence that Mr Savvas helped him to the car. At the time he had difficulty breathing and was breathing in little breaths. He said he had glass in his face and mouth and on his clothes and his back was hurting and he was in a lot of pain: T29.16. The plaintiff said that he had been struck on the left side under the arm.

22. The plaintiff stated that Mr Savvas did a U-turn in his vehicle and took him to Canterbury Hospital. He said it was only three or four minutes to the hospital and that he was dazed and dizzy at the time: T30.

23. The plaintiff said that at the time he was in a lot of pain in the area of his ribs, left shoulder and left shoulder blade. He said his chin was split open and there was a lot of blood.

24. The plaintiff gave evidence that Mr Savvas stopped his car in front of the Emergency Department doors at Canterbury Hospital and ran in and came out with a nurse. He said he was helped out of the car and taken inside and given painkillers: T31.25. The plaintiff said that he believed a doctor examined him “straightaway” and he believed his neck was checked and he was given morphine: T31.33-.48. He said the hospital staff were taking glass out of his mouth but there were no cuts in his mouth: T32.9; T32.31. He said his wound was cleaned out.

25. The plaintiff stated that when he was lying on the ground on the pedestrian crossing he had glass all over his body, in his clothes, on his face and in his mouth: T32.38-T33.11. He described the glass as “crumbly glass” (T33.1) and Mr Savvas had helped to try to get the glass out of his mouth (T33.26). He said that he could not recall whether he had a headache.

26. The plaintiff said that x-rays were taken and he was transferred to Royal Prince Alfred Hospital so that a plastic surgeon could suture his chin.

27. The plaintiff said that at this time he was in a lot of pain and had been using a morphine pump. He stated he was discharged from Royal Prince Alfred Hospital on 4 August 2015 and went straight home.

28. The plaintiff gave evidence that on 5 and 6 August 2015 he had difficulty getting off a reclining arm chair and the Endone he had been given caused him to be constipated. He said he went back to Canterbury Hospital on 7 August 2015 to be examined and at that time was still in a lot of pain particularly in the area of the ribs and the lower back and shoulder. He said he had little pain in the neck. He was given laxatives to assist with his taking of Endone and could not recall other medication. The plaintiff said that he still had difficulty breathing without his medicine and his problems in this area took a few months to settle: T37.46; T38.5.

29. The plaintiff stated that he then attended his general practitioner at his local medical practice and particularly saw Dr Smythe.

30. The plaintiff stated that by the end of September 2015 he was still sleeping in a recliner chair as he could not lie down backwards. By the end of the year he said that he was able to lie down but still had pain in the ribs. He said he was not driving and was being looked after by his family.

31. The plaintiff gave evidence that he went to see a rehabilitation provider organised by the insurer called Keystone in 2016 which assisted him particularly in building up his muscle strength. He also attended a fitness program but found that he could still not lift heavy loads and could not push or pull. The plaintiff said that he had sharp pain in the shoulder on exertion which was still the case now: T40.18.

32. The plaintiff was asked whether he intended to resume his old job as was indicated in the Keystone documents and he said that that was not the case.

33. The plaintiff was asked about his present position and he said it was “pretty good”: T41.23. He said he still had pain in his ribs particularly if he slept on the left side. He said he could not lift more than 15kg and that if he lifted 15kg repetitively he believed he would have a problem with pain. He described reaching above shoulder height as the most difficult and painful: T42.1.

34. The plaintiff said he was no longer taking medication or having physiotherapy or other active treatment in relation to the pain from the accident: T42.41-T43.1.

35. The plaintiff was asked about other health conditions.

36. The plaintiff stated that in 2018 he fractured his foot and had three screws inserted into it with the ligament “coming off the bone”: T43.8. He also said that he had thyroid problems in 2019 and his gallbladder removed in July 2019. The plaintiff said that following his gall bladder operation he could not lift anything and he required more treatment and for the area to heal. He said his thyroid condition also required more treatment and he may have to have it taken out. He said that presently his foot was “pretty good” and that he would like to get back to work. He said he proposed to do a course to become a chef and he intended commencing the course in 2020 if his thyroid condition and treatment went well.

37. The plaintiff was asked further questions in chief about when he attended Canterbury Hospital where he said he had glass in his mouth. He stated that at the hospital the staff tried to pick the glass out of his mouth and his chin. The plaintiff confirmed that he had glass on his clothing when he arrived at the hospital: T50.9.

38. In cross-examination, the plaintiff was asked a number of questions about his work history prior to the accident. He confirmed that he left school in 2001 and his first “proper job” was at ANZ Stadium working for Sodexho. However, the plaintiff said that he worked for a kitchen installer for a few weeks straight after school who undertook carpentry and cabinet making. He said he was paid for his work of about two weeks by that person. He said he stopped the work as he did not like the type of work. The plaintiff said he then worked at ANZ Stadium. The plaintiff was taken to the Statement of Particulars filed on 28 September 2018 which states that he worked at ANZ Stadium from 2004 to 2007 approximately. The plaintiff said that he left earlier than 2007 and, he believed, worked at ANZ Stadium between about 2003 and 2004 and left in 2005. He said that he worked at ANZ Stadium fulltime for about one and a half to two years: T52.41. This should be compared to his evidence in chief in which he said that he worked at ANZ Stadium for two to three years: T17.15. He confirmed that he ceased work as the contract of Sodexho had ceased and he said that he did not reapply to the new company with the contract as they did not want anyone from the old contract.

39. The plaintiff confirmed that he bought his bait and tackle shop which was located at Greenacre in 2010, having previously worked at a car sales outlet call Motor Gallery for about one and a half years. He said he started there in 2006 and washed and cleaned cars, delivered cars and picked them up. The plaintiff said that he finished working at Motor Gallery in about mid-2007.

40. The plaintiff accepted that he was unemployed and not studying for about two years after he pulled out of his TAFE course in 2001. He also accepted that he was unemployed for a period between working at the ANZ Stadium and the Motor Gallery. In addition, he agreed that he was unemployed for a period of at least two years between working at the Motor Gallery and owning his bait and tackle shop in 2010. The plaintiff said that in the period until he opened the bait and tackle shop, he was looking for work but did not know what he wanted to do.

41. The plaintiff accepted that business conditions were not profitable at the bait and tackle shop with it only doing particularly well in summer. The plaintiff’s tax returns for the 2011-2013 financial years which became Exhibit F in the proceedings showed that the plaintiff had a taxable income in the 2011 year of $6,508, a taxable income in the 2012 financial year of $3,117 and a taxable income in the 2013 financial year of $5,280. Despite that, the plaintiff said that he worked very long hours at the shop particularly between Friday and Sunday when he never closed from 6am or even earlier on Friday to Sunday night.

10. The plaintiff confirmed that he did not work after the bait and tackle shop in 2013 until shortly before the accident on 3 August 2015. He said he was depressed during this period due to the lack of success of his shop: T62. He said he did not take medication for his depressed mood. The plaintiff however appeared to disagree that he was “not happy” at the time of the accident but could not say for how long his mood had changed: T64. The plaintiff said that he did not explore obtaining a retail job in this period even in the fishing industry, as it did not interest him although he was looking for work. He said he did not apply for any jobs in the retail industry at this time.

11. The plaintiff was asked about his position with Moeco Excavation & Demolition Pty Ltd which he had before the accident. The plaintiff agreed that he was employed on a trial basis, it was not a permanent job and that he had obtained it through word-of-mouth. He said he worked as a labourer and had been working for roughly four or five days before the accident: T65.28. He said he had not spoken to the owners of the business since his accident and had not applied for any other jobs at all: T65.35. The plaintiff agreed that he did not say he could not work and accepted that he could work in the retail industry but after the accident he did not feel well: T66.5. The plaintiff added that in the last two years he had had a number of health problems with his foot being broken, the rehabilitation for that, his thyroid problems and his gallbladder operation which meant that he could not carry anything: T66.4-.13.

12. The plaintiff was then cross-examined about the circumstances of the alleged accident on 3 August 2015. He confirmed that at the time of the accident he was with his friend Mr Savvas and the time he was injured was between 7pm and 7:30pm: T66.27. He agreed it was dark at the time: T66.30 (see Exhibit 2). After some extensive cross-examination of the time he had spent with Mr Savvas after parking in Ninth Avenue at Campsie, the plaintiff accepted that he was at Ninth Avenue for about 15 minutes before he and Mr Savvas left to walk to Mr Savvas’ car parked on the other side of the road from the house they were looking at. The plaintiff gave evidence that Mr Savvas was walking ahead of him by about two-three metres and at the time he was hit (T71.28), Mr Savvas was walking off the crossing and he (the plaintiff) was in the middle of the crossing: T71.38. The plaintiff said he did not precisely know where Mr Savvas was at the time he was hit but he was looking ahead and at him. He did not recall whether Mr Savvas was turning right at the time he was hit. The plaintiff’s estimation of Mr Savvas being anywhere from two to three metres ahead of him (T71.45) to even three to four metres ahead of him (T77.39-.47) at the time of the accident should be compared with his markings on the second photo (Elkodat 3) in Exhibit E and the dimensions noted on that photograph which suggest a distance between them of well less than three metres. The plaintiff could give no explanation in cross-examination as to why Mr Savvas was walking ahead of him.

13. The plaintiff was taken to his evidence in chief at T28.8 where he stated that he “got struck by a car”. He confirmed his evidence that at no point before he was struck, did he see any motor vehicle: T28.21. He said he looked to his left and to his right when he first started to cross the crossing and did not see any cars at all but could not recall whether he continued to look to his left and right as he crossed or whether he looked straight ahead. In the end, he said he was looking straight ahead at Mr Savvas: T79.28. The plaintiff was then shown a number of photographs which showed that at night time, the crossing was brightly lit. He accepted that the area was lit including each side of the crossing. After extensive cross-examination, the plaintiff stated that he did not see any car, did not hear anything, did not see anything in his peripheral vision, did not see any lights of any approaching car and the basis on which he believed he was hit by a car was that he felt an impact: T83-85. The plaintiff said that he was hit by a car “or something big” (T86.8) but did not see a car. He denied making his evidence up but agreed that he had no idea that it was a car which hit him although he said something hit him. The plaintiff denied losing consciousness but said he was in shock at the time: T87.31.

14. Although the plaintiff initially said that he could not get out of bed for two to three weeks because of his injuries from the accident, he accepted that he saw a general practitioner eight days after the accident (Exhibit A page 129) at the medical centre and also reported the accident to police about 10 days after the accident.

15. The plaintiff was then cross-examined about statements which he had provided, particularly statements which he agreed he signed on 15 September 2015 and in June 2018. Extracts of the statements are set out in the report of Mr Jamieson which is part of Exhibit B.

16. The plaintiff relevantly stated as follows in the three statements:

1. Statement to police dated 15 August 2015 (Exhibit 3):

“5.   George had already got off the pedestrian crossing. Just as I had passed the middle of the crossing a car came from my left hand side. I did not see exactly where the car had come from. The car struck me and I think I fell to the ground. It felt like I couldn’t breathe. I was dazed out and when I opened my eyes I saw George standing over the top of me.

6.   I felt glass around me and had some glass in my mouth. I felt pain in my arm, my ribs, my shoulder and my back …”;

2. Statement signed on 15 September 2015 (Exhibit 4):

“8. On or about 3 August 2015, at approximately 7pm in the evening, I was crossing Ninth Avenue, Campsie along the pedestrian crossing near the roundabout and the intersection with Second Avenue. I would indicate that it was quite dark at that time, I was wearing a dark top and pants and I would indicate that on either side of the street, there are big, established council trees. At the time, I was with my friend, George Savvas. I was crossing from the side where the butcher shop is located towards the other side of Ninth Avenue where George had parked his car. As I was crossing, I looked both ways and did not see any vehicles on either side of the street or any headlights flashing in the distance. As I was crossing the pedestrian crossing, I could see that George was a few metres ahead of me, which I would estimate to be two to three metres, and had completed the crossing and was at the concrete inclination towards the footpath when all of a sudden and without warning, I was struck by a vehicle from the left side. In the process of being struck by the vehicle, I was thrown up onto the bonnet, smashed the windscreen, and then thrown heavily to the road. I injured my head, neck, left shoulder, upper back and was bleeding heavily. I also received facial injuries and severe blows around the rib area. The vehicle at fault failed to stop and kept travelling along Ninth Avenue towards the direction of Campsie and the City.

9. At the time of the accident, I do not recall any headlights flashing in my direction nor did I hear the sound of a car braking.

10. I would estimate the point of impact to be in the middle of the lane in the direction of Campsie.

11. I was in total shock, I was bleeding under the chin, I had broken glass in my mouth, my ribs were severely hurting and I had difficulty breathing…”;

3. Statement dated 29 June 2018 (Exhibit 5):

“10. Just before I walked onto the pedestrian crossing I looked to my left and right to see that the traffic was clear in both directions and I could see any approaching vehicles &/or vehicles with headlights on approaching in either direction (to the east or west).

11. As I crossed the pedestrian crossing from south to north I was walking at a normal pace and initially as I crossed on the pedestrian crossing I again looked to my left and right and again I did not see any vehicles approaching from my left or right and I did not see any vehicle headlights.

12. Moments later as I approached the other end of the pedestrian crossing it was approximately in the middle of the eastbound lane of Ninth Avenue, my friend George had walked off the crossing onto the northern side of Ninth Avenue heading towards the footpath turning to his right towards his parked car at which time he again was approximately 2 to 3 minutes [meters] ahead of me.

13. It was at this time that without any warning a vehicle travelling east on Ninth Avenue struck me on my left side. At the time the vehicle struck me I was looking ahead of me in the direction of north and I did not see the vehicle approaching or see any headlights coming towards me from my left.

14. When the eastbound vehicle struck me I initially felt the front of the vehicle impact my left upper torso after which I was thrown up onto the bonnet of the vehicle and the left side of my body and head smashed into the windscreen of the vehicle breaking the windscreen.

15. I was then propelled onto the road over the vehicle onto the road but I don’t know which part of the vehicle I went over. The place where I landed was on the pedestrian crossing just near the north-eastern edge of the crossing.”

49. After significant cross-examination, the plaintiff accepted that in the light of his oral evidence that he did not see a car, the second and third statements did not reflect what he had seen but what he assumed happened. The plaintiff again confirmed in cross-examination that he did not know what struck him. He said he believed he must have smashed the windscreen having regard to the glass that was on his face and body and in his mouth. The plaintiff agreed that he should have told his solicitor in relation to the second statement that he did not see what hit him and he assumed what he had said was what had occurred. The plaintiff confirmed that he believed that he had been hit by a vehicle. The plaintiff agreed that he willingly saw the insurance investigator in order to provide the third statement when asked. The plaintiff accepted that he did not tell the insurance investigator that what he said was what he thought happened rather than what he knew had happened. The plaintiff denied that he simply made up a story as he believed that was what really happened and where the glass came from and what caused his chin to be lacerated: T116.5. The plaintiff also denied that he deliberately changed his story in order to explain the inconsistencies in his statement: T116. He also denied that the contents of his 2015 and 2018 statements could not be true. He denied that he had made any deliberate decision to make up a story knowing that it was not true.

50. The plaintiff was then asked about the timing of the accident compared to the timing in the Canterbury Hospital records. He agreed that the accident occurred between 7pm and 7:35pm and he arrived at Canterbury Hospital within a maximum of five minutes of the accident with Mr Savvas. When it was put to him that the records showed that he did not arrive until after 9pm, about one and a half hours later, the plaintiff said he did not understand this. He said he was given painkillers soon after arrival as he could not breathe properly: T119.7. He said he could not explain the timing in the hospital records and assumed it was a mistake.

51. The plaintiff confirmed that he had spoken to his friend Mr Savvas who he says was present when the accident occurred, a couple of times about the accident but denied that he spoke to him before he made his statement.

52. The plaintiff also said that given his memory of events, he could not provide any explanation as to why there was glass in his mouth and over his clothes before he was taken to Canterbury Hospital on 3 August 2015: T123.20-.47; T131.10. His evidence in effect was that he assumed he was hit by a car while crossing the pedestrian crossing and that this caused the windscreen of the car to shatter.

53. The plaintiff was asked questions about his pain and restrictions. The plaintiff confirmed that he told the doctors at Canterbury Hospital that he had pain in the left ribs and the left shoulder. He agreed that he did not tell the people at Canterbury Hospital that he had neck pain. Although he said he had pain in the back of the shoulder, he could not recall telling Canterbury Hospital staff that he had a good range of movement with his neck. The plaintiff denied that he told Canterbury Hospital that he had any other facial injuries other than the cut under his chin (see Exhibit A page 39).

54. The plaintiff confirmed that he was transferred from Canterbury Hospital to Royal Prince Alfred Hospital by ambulance and was assessed there. He agreed that he told the staff at Royal Prince Alfred Hospital that in relation to his head he only had a cut to his chin. He agreed that he was not complaining at Royal Prince Alfred Hospital in relation to tenderness or pain to the neck or back but said he had tenderness to the left chest. He could not recall his teeth being checked (Exhibit A page 109).

55. The plaintiff was then cross-examined about the painkillers which he took after the accident. His evidence in summary was that he believed he was given Endone at one of the hospitals which he took but otherwise in the period from the accident to March 2018 he had only filled three prescriptions, only one of which was a painkiller. The plaintiff said that he took painkilling medicine after the accident for only a few months, particularly at night. The plaintiff also said that he took Nurofen.

56. The plaintiff was asked about his sporting activities and said that he played rugby league and soccer before the accident. He said that after the accident he never returned to playing for his teams. He denied ever playing rugby league after the accident. He was then asked about notes from Greenacre Medical Centre for 21 January 2018 in which he gave a history of pulling his hamstring while playing a game of rugby league. The plaintiff said that he once played a game of touch football with friends at a barbecue and he pulled his hamstring.

57. The plaintiff was asked questions about domestic assistance. He was unaware that his legal representatives were making a claim for money in relation to problems requiring domestic assistance. The plaintiff accepted that he could do maintenance work around the house including mowing the lawns and vacuuming and any day to day maintenance.

58. In relation to services provided by Keystone Professionals regarding rehabilitation, the plaintiff agreed that they had assessed him and that his physical strength had improved slightly following a gym based programme and the provision of assistance and information. He agreed he had supervised sessions at a gymnasium. He denied not attending the gym because of a lack of motivation, illness or religious beliefs. He said he was not religious.

59. The plaintiff disputed the suggestion that by July 2016 he could pull 22kg and push 20kg as well as being able to carry 20kg for 20 metres. However, he agreed that by mid-2016 he was mainly pain-free with occasional sharp pain under the shoulder with physical exertion: T148.17; Exhibit 1 page 2.

60. The plaintiff gave evidence that in July 2018 he broke his foot and this was followed by two operations, one to screw the cartilage back onto the bone and the second to take out the screws. He agreed that he still had limitations as he could not run much at all and his foot hurt in winter. The plaintiff also agreed that in July 2019 he had his gallbladder removed: T43.10. The plaintiff accepted that he had a number of limitations as a result. He could not carry, pull or push anything over 5kg. He also agreed that it had been suggested that he may have to have his thyroid out and symptoms had included no appetite, difficulty sleeping and anxiety with heart palpitations. He said he understood that if he had his thyroid out that he would be on medicine for all his life. Other than the hamstring problem in January 2018, the plaintiff denied other health problems.

61. The plaintiff said that after the accident and before July 2018 when he broke his foot, he did not look for any work although he accepted that prior to July 2018 he was capable of performing light duties and working in retail: T150.48. He denied being able to engage in physical work as he could not carry 20kg after the accident and now is only limited to 5kg.

62. The plaintiff agreed that over time his shoulder problem improved but he denied being able to go back to heavier work. The plaintiff agreed that as told to Dr Sekel, he had full range of movement in both arms, was able to lift both arms above his head and had a full range of movement in his neck. He agreed that prior to his foot injury in July 2018, he had told Dr Sekel that he was looking to get a truck licence and said that he was studying for it and believed he could drive trucks including heavy trucks. He agreed that he could not work as a truck driver now because of his foot and other injuries from July 2018. He also agreed that now he could not undertake any physically demanding work because of his foot, gallbladder and thyroid problems. He accepted that they were unrelated to the accident but believed his gallbladder restrictions may be lifted within a few months. The plaintiff did however say that he had restriction just below the left shoulder blade at the back but the pain was not always there.

63. The plaintiff was taken to paragraph 12 of his police statement which became Exhibit 3 in the proceedings which provides: “I don't know exactly how fast the car was travelling and I don't know if the car had its headlights on. If the car did have lights on I would have seen it.”

64. The plaintiff was also taken to paragraph 5 of his police statement in which he stated that he did not see exactly where the car had come from which struck him. The plaintiff confirmed the contents of paragraphs 5 and 12 to the extent that he did not see exactly where the car had come from and if the car had its headlights on that he would have seen it. He also confirmed that he did not know how fast the car was travelling. The plaintiff was then taken to the photographs in Exhibit E and particularly the photograph marked “Elkodat 3”. Importantly, he confirmed that the cross was where he believed he was when he was hit (T161.1-.7) and that the cross in a circle was where Mr Savvas was when he was struck.

65. The plaintiff was then asked about his statement to the insurance investigator dated 29 June 2018 which became Exhibit 5 in the proceedings. The plaintiff rejected that he had maintained a story he had no memory of and stated, similar to his earlier evidence, that this was what he assumed had happened to him. The plaintiff conceded that he should never have assumed anything and should have told the insurance investigator that. He confirmed that much of the statement in relation to him being struck by a car and smashing into the windscreen and breaking the windscreen was not his actual memory but an assumption on his part.

66. The plaintiff was then asked a number of questions about the presence of glass on his body: T165.21-T166.6. The plaintiff confirmed that after the accident he had glass in his mouth but could not recall having glass on his face other than on his chin. He said he had glass on the front of his chest and all over his jumper. He could not recall having glass on his sleeves, the back of his jumper or on his pants but did recall having some glass in his shoes. When asked whether he had glass around him when he was lying on the road, the plaintiff said that he could not recall as he was in pain. He confirmed that he did not hear any noise from the car prior to the accident. He could not recall hearing after he fell any noise or hearing glass smashing. He said he did not recall hearing glass falling to the ground: T166.39.

49. The plaintiff said he could not remember the lighting that was present on the night of the accident. He said that from the photos he had been shown the area appeared well lit. He also agreed that from the photographs there appeared to be a light on either side of the crossing and on the roundabout near the crossing.

50. The plaintiff was cross-examined about his comment in paragraph 8 of Exhibit 4 that “it was quite dark at that time”. The plaintiff clarified that. He said that by this he meant that it was late and it was night time. He said he was not saying that the area was dark where the accident occurred. Similar comments were made by the plaintiff in relation to paragraph 27 of his third statement which became Exhibit 5 in the proceedings. The plaintiff said he had no actual recollection of the area being well lit on the night of the accident. He gave evidence that he could not recall why he said it was a “dark” area in paragraph 27 of his third statement. He denied making up the evidence.

51. The plaintiff was then asked about Dr Browne’s second report dated 22 April 2019 in which he states:

“Since his last review he has been living at his parents’ home in a granny flat and has been assisting his brother in a car sales yard mainly carrying out some driving and delivery duties three days a week.” (Exhibit A page 172).

70. The plaintiff confirmed that he had not been working at a caryard for his brother. He was taken to a similar statement in the report of Dr Sekel dated 31 August 2018 (Exhibit 1 page 30). The plaintiff confirmed that he had been working in a car sales yard cleaning cars but it was not his brother's caryard. He said this was in 2018 and involved him “helping out” for some days or a week. The plaintiff said he was washing cars as he was depressed staying at home. He stated that he ceased as he did not like the job. When asked why he did not like it by the court, the plaintiff simply said that he did not like the work. When asked whether he was physically able to do the work, the plaintiff said he was only cleaning a few cars a day but was physically able to do the work. A somewhat different statement is made in the penultimate paragraph of Dr Sekel's report where the plaintiff is recorded as saying that he ceased the work because of discomfort in the left hand (Exhibit 1 page 30).

71. In re-examination, the plaintiff gave evidence about his job at ANZ Stadium for Sodexho and confirmed that he worked there even when events did not occur, restocking the outlets. He said his hours were between 7:30am and 4:30pm and he sometimes worked six days a week. He said he would have remained working there if the work was available after Sodexho’s contract was terminated.

72. In relation to his other work, the plaintiff said he had never considered working at a fishing tackle and other goods shops such as BCF as he said he was “over that industry” and did not think of it. He said that other than at his bait and tackle shop he had never done retail work and whilst he could use a cash register he did not know how to use computer software, for example in relation to stock.

Oral evidence of Mr George Savvas

73. Oral evidence was given by Mr George Savvas who was the friend of the plaintiff and who allegedly was present with him when the plaintiff was struck by a car on the pedestrian crossing in Ninth Avenue at Campsie.

74. Mr Savvas said that he was a self-employed electrician by trade and had known the plaintiff for 15 to 16 years.

75. Mr Savvas said that he was at the plaintiff's house when a decision was made by them to drive to Campsie to look at a house that his sister was interested in purchasing which was in Ninth Avenue. He said the house was up for auction and the purpose of the trip was to visually inspect the house from the street. Mr Savvas said that they arrived at Ninth Avenue between 7:20 and 7:30pm, parked across the road from the house, crossed the pedestrian crossing and looked at the house for about three to four minutes. Mr Savvas said that when they were returning to the car he was approximately two to three metres in front of the plaintiff and they were proceeding across the marked crossing. He said he had just completed crossing the pedestrian crossing and had arrived on the footpath and had turned right when he heard a screech, a yelp and a thud followed by what sounded like a moan: T228.37-T229.2. He said he turned to his left and looked around and saw the plaintiff Mr Elkodat on the pedestrian crossing between the two lanes in the road closer to the lane walking off the pedestrian crossing. He proceeded to mark on an aerial photograph where he saw the plaintiff on the road which became Exhibit G in the proceedings. Mr Savvas said that he could not recall whether the streetlights were on at the time.

76. He said he ran up to the plaintiff, helped him up, put his arm around his shoulder and assisted him to the passenger seat of his car and then travelled to Canterbury Hospital which was nearby.

77. Mr Savvas was asked whether he noted the source of the screech which he had heard and stated that while he was focusing on the plaintiff and was not really paying attention to the source of the screech, he looked up and saw two tail lights of a car driving away about 100 to 200 metres away: T230.24. He said he could not determine the type of vehicle and guessed that it was a sedan from the tail lights. He said he had no certainty as to this: T230.45.

78. Mr Savvas said that he noted that the plaintiff had blood on his chin and a piece of glass appeared to be hanging out of the chin. The plaintiff was complaining about having glass in his mouth and he believed he saw some glass on the plaintiff's tongue: T231.3. He also recalled the plaintiff saying that he could not breathe and he was breathing heavily. Mr Savvas said that he did a U-turn in his car and proceeded directly to Canterbury Hospital which was only several minutes away.

79. Mr Savvas gave evidence that when he arrived at Canterbury Hospital he ran into the Emergency Department and shouted out to a nurse who came out. The nurse said that she could not touch the plaintiff for legal reasons and asked why he had not been brought by an ambulance. He said that he had brought the plaintiff immediately and spoke to the plaintiff who got out of the car with an effort and walked in with the nurse to the Emergency Department. He said the plaintiff was taken into the triage area and he was not allowed to follow him and went back outside and stayed there for a while. He said he did not go back into the hospital and next saw the plaintiff, he believed, a few days later. He then said that he went with the plaintiff to Campsie police station to make the police statements. He confirmed that the contents of his statements were true and correct.

80. In cross-examination Mr Savvas confirmed to senior counsel for the defendant that he went with the plaintiff to look at the house in Ninth Avenue because his sister was interested in buying it and the inspection was for the purpose of looking at the condition of the house. He accepted that it would have been useful to look at the house in daytime. Mr Savvas then significantly gave evidence that it was daylight when he looked at the house. Later, he confirmed this again and said that the sun was still out (T242.40) which enabled him to inspect the house. Similar evidence was given on a number of occasions by Mr Savvas. Mr Savvas then said that although he spent with the plaintiff only five to 10 minutes looking at the house, by the time they had crossed the road the light had changed and it was dusk. He confirmed that in the period they had been looking at the house which he later stated could have been five to six minutes the light had “changed a lot” (T242.8) and it was starting to get darker. He confirmed this was between 7:20pm and 7:30pm: T243.30.

81. Mr Savvas was asked to assume that sunset was at 5:15pm on 3 August 2015 and his initial reaction was that it was not possible: T244.19. He again confirmed his evidence that there was enough daylight when he arrived at the house to see the house and inspect it. Mr Savvas confirmed that his police statement was the most accurate record as it was given shortly after the incident: T248.9.

82. After further cross-examination, Mr Savvas confirmed that when he looked at the house it was daylight with him being able to see the house with light from the sun. He could not understand how his evidence had gone “wrong” on the assumption that the sun had been fully set for an hour by 7:20pm.

83. Mr Savvas initially gave evidence that he had only given one statement to an insurance investigator. When he was presented with two statements dated 19 March 2016 and 4 July 2018, he confirmed his signatures on both documents and agreed that, contrary to his initial evidence, he had provided two statements to the insurance investigator.

84. After further cross-examination, Mr Savvas agreed that he must have got his times wrong and if it was dusk at the time of the accident and sunset was at about 5:17pm, that the accident “must have” happened between 5pm to 5:30pm: T253.12. When it was put to him that in that situation he must have arrived at Canterbury Hospital between 5:30pm and 5:45pm, Mr Savvas accepted that that could be the case: T255.17. When it was then put to him that the registration records at Canterbury Hospital showed that the plaintiff was registered after 9pm and thus it must have been that the plaintiff was not taken to hospital for three and a half to four hours after the accident, Mr Savvas said that that was “impossible”: T255.39.

85. When given a further opportunity by the court to reconsider his evidence about the light at the time he inspected the house and at the time of the accident, Mr Savvas said he was “quite sure” that it was daylight when he looked at the house and the sun was out and it was dusk when he proceeded to cross the pedestrian crossing: T259.41.

86. On the fourth day of the final hearing, the plaintiff made an application under s 38 of the Evidence Act 1995 (NSW) for leave to cross-examine Mr Savvas in relation to his evidence concerning the light immediately before and at the time of and immediately after the accident as his evidence was unfavourable to the case of the plaintiff and was inconsistent with prior statements made by Mr Savvas. Those statements were tendered on the application and in due course became Exhibit H in the proceedings. Following a contested hearing, the application by the plaintiff was successful.

87. In order to understand Mr Savvas’ evidence, including in relation to the light issue, it is necessary to set out parts of Mr Savvas’ four statements. The relevant parts are as follows:

1. Paragraphs 5 to 7 of Mr Savvas’ first statement dated 15 August 2015:

“5.  When we crossed the road there were no cars around. It was dark, the trees make the street appear very dark. There were no other cars driving around and I couldn't see any one walking around. I don't recall seeing a car when we crossed. By the time I got onto the footpath a car may have come.

6.  I heard tyre screeches and a yell from Aiman. I turned around because of this and saw Aiman laying on the road on the crossing. I looked up and saw a white vehicle drive off along Ninth Ave, towards Beamish St. I didn't see a registration. The car did have lights on as it drove away. The car did not make any attempt to stop. By the time I saw him he was about 200 metres away.

7.  I ran up to Aiman to make sure he was ok. I asked him if he was ok. There was broken glass around him and he asked me if he was bleeding badly. I could see a piece of glass in his chin”;

2. Paragraphs 7-9 of Mr Savvas’ statement dated 21 December 2015:

“7.  We were in the area for about 5 minutes or so when Aiman and I decided to head back to my car that we were travelling in which I had parked on the other side of Ninth Street, opposite to the butcher shop and the house listed for sale.

8.  I remember that it was quite dark at the time with trees lined along both sides of Ninth Avenue and I cannot remember if the street lights were on.

9.  I remember I was walking ahead of Aiman when I crossed Ninth Avenue along the pedestrian crossing within close proximity to the roundabout and the intersection with Second Avenue. As I was crossing, I remember looking to my left and to my right, and I could not see any vehicles travelling along Ninth Avenue. I had crossed both lanes along the pedestrian crossing and got to the other side of the road near the footpath. I then heard what I believe to be a loud screeching sound of tyres, followed by a screaming sound. I then immediately turned around and the first thing that I saw was Aiman lying on the road in the middle of the lane, approximately 3 metres behind me. The second thing that I saw was a car driving into the distance driving along Ninth Avenue in the direction of Campsie. I could observe red lights on the back of the vehicle and at no time did the car stop. I would say that the car was white in colour but I am not certain. I immediately came to the assistance of Aiman, I helped him off the floor and walked him to my car, which was parked nearby.”

3. Paragraphs 7-13 of Mr Savvas’ statement dated 19 March 2016:

7.  I cannot recall the date but on a day last year, maybe later in the year, I was present when Aiman Elkodat was struck by a vehicle.

8.  I know that it was just on dark. I do not recall that the street lights were on.

9.  Late that afternoon I had driven to 9th Avenue, Campsie NSW to look at a house for sale. Aiman had travelled with me just for something to do.

10.  I parked on 9th Avenue and we crossed to the other side of the road to look at the house. It was an inspection from the outside. I recall that the sun was going down and we just had looked at the house before the sun went down.

11.  Then we began to return to my car. We walked back to the pedestrian crossing which was only about 2 houses away from the house we were looking at.

12.  I was walking in front of Aiman and thinking about getting back to the car and I crossed the crossing. I was about 3 steps off the crossing when I heard a tyre screech and I heard an "Er" vocal sound and a sound like glass breaking.

13.  I turned around and Aiman was on the ground and was trying to get up. He was on one knee. His feet were pointing to the west towards the roundabout and his head was facing east. He was at the eastern edge of the pedestrian crossing and close to the middle double lines but on my side of the lines.”

4. Paragraphs 8-15 of Mr Savvas’ statement dated 4 July 2018:

“8.  As I have indicated in my earlier statement shortly before this accident occurred myself and my friend Aiman Elkodat were on the southern side of Ninth Avenue where we had been looking at a house for sale which my sister was interested in buying. We had arrived and parked my vehicle on the northern side of Ninth Avenua [sic] approximately 5 to 10 minutes beforehand. When we first arrived it was getting dark.

9.  After looking at the house when it was about 7.00pm to 7.30pm and not long after the sun had gone down we then proceeded to walk across Ninth Avenue on the pedestrian crossing from south to north.

10.  At this time I was walking ahead of Aiman approximately two to three metres in front of him, and so I walked upon the pedestrian crossing in front of Aiman by this distance of two to three metres. At this time it was quite dark, but I cannot recall if the street lights were on a or [sic] if any street lights were nearby and I recall it was a dark area from all the trees around.

11.  Just before I walked on to the pedestrian crossing I looked to my left and right to see that the traffic was clear in both directions and I could not see any approaching vehicles and I walked across the pedestrian crossing to the northern side of Ninth Avenue. During the time I walked across the crossing I did not see any vehicles approaching from either direction.

12.  When I crossed the pedestrian crossing and reached the northern side I walked onto the footpath and turned to my right to walk in an easterly direction toward my car which was a short distance ahead of me parked on the northern kerb.

13.  I was about 3 steps off the pedestrian crossing when the eastbound vehicle struck Aiman Elkodat and at this time I was looking ahead of me in the direction of east. It was at this time that I heard tyres screeching and then a second or two later I heard a thud and vocal sound from Aiman and I heard the sound of glass breaking.

14.  Initially I looked to my left however Aiman was not there and then I looked to my right to see him lying on the road and at that time he was positioned on the northern edge of the pedestrian crossing.

15.  Straight away it was obvious that Aiman had been hit by a car and I saw the rear of a vehicle travelling east on Ninth Avenue away from the pedestrian crossing which I believe was the vehicle that must have collided with Aiman.”

88. In the cross-examination with leave by counsel for the plaintiff, Mr Savvas was taken to various parts of the transcript in which it is recorded that he said that it was daylight when he and the plaintiff looked at the house in Ninth Avenue in Campsie: see T229.50; T235.45-T236.5; T238.19; T240.16; T242.40 (“the sun was still out”); T243.23. Mr Savvas said that he had no actual recollection of the sun being above the horizon when he was looking at the house on the day in question. When he was taken to relevant paragraphs relating to the light in the four statements referred to above, Mr Savvas altered his evidence having reviewed his statements, and stated that at the time it was dark and the visibility was low. He confirmed the evidence in paragraph 5 of his first statement and paragraph 8 of his second statement.

89. In relation to paragraphs 8 to 10 of his third statement, Mr Savvas said that the statement was wrong and the two earlier statements were correct and were more accurate than the third statement. Mr Savvas agreed that it was “quite dark” at the time: T277.30. Mr Savvas said that it was not daylight at the time they were looking at the house and when they were inspecting the house the sun had already gone down. He agreed again that it was “quite dark” when he was inspecting the house. He stated that at all relevant times it was dark or on dark.

90. Mr Savvas said that he got home the previous night after giving evidence and thought about his evidence in the light of a “big job” which he was completing at Bondi Junction at the time and realised that his evidence was wrong and a mistake: T277.46-T278.

91. The cross-examination of Mr Savvas by senior counsel for the defendant then continued. Despite being pressed on the level of the light issue for an extensive period, Mr Savvas stood by his evidence that it was dark when they were looking at the house but there was sufficient light for him to still see the house. Mr Savvas said that his previous evidence given on day three of the trial that it was daylight at the time he inspected the house was a mistake. Mr Savvas said he was trying to give accurate evidence at the time but had reflected on his evidence in the light of the time of the year and the work at a Bondi Junction site that he was completing at the time which necessitated a fairly long journey home at the end of the day.

92. Mr Savvas then gave evidence that the crossing was more lit up in what he assessed as the last two years than it previously had been. Initially, he claimed that at the time of the accident none of the floodlighting had been installed, although he was not 100% sure of that. He then stated that it was definitely darker at the time of the accident than it was now although he could see the house. He later claimed that this was because he had noticed as an electrician that the halogen lighting was replaced by much brighter LED lighting.

93. Mr Savvas also confirmed his evidence that he and the plaintiff arrived at Canterbury Hospital between 7pm and 7:30pm with the accident happening shortly before that. Mr Savvas said he had an actual recollection that at the time of the accident, there was no daylight and it was dark but he could not remember for how long it had been dark.

88. On being further pressed, he said it was “impossible” that there was no accident as claimed: T299.13.

89. In relation to the precise time of the accident, Mr Savvas said that although his experience was that Ninth Avenue sometimes was a busy road with a lot of traffic on it, he saw no car going in either direction on the night whilst he was crossing the road and only saw the tail lights of what he believed was the car that struck Mr Elkodat after the accident.

90. Mr Savvas was then asked about his evidence in chief that he was “pretty sure” that soon after the accident he looked up “at the car driving away” and that he saw “the red tail lights of a car driving away”: T230.15 and T230.24. He confirmed that he saw the tail lights of a car driving away in the distance in the direction of the city. He also confirmed that he saw no headlights shining near the area where he was walking before the accident. When asked what he heard, Mr Savvas said that he heard only a screech: see also T228.46. He then noted where he saw the plaintiff on a copy of a photograph which became Exhibit G and said that the plaintiff was close to the middle of the road. See also the diagram which is annexed to Mr Savvas’ third statement which he confirmed was his best recollection of the location of the plaintiff: see Exhibit H. Mr Savvas said that although he saw the two red tail lights of a vehicle in the distance, he did not see the front light beam of the car which he said was about 100 metres away: T317.43-T318.44. In his evidence in chief he said it “would have been between 100, 200 metres give or take”: T230.28. When it was suggested to Mr Savvas that he did not see what hit the plaintiff he replied that it must have been a car although he did not see a car strike the plaintiff: T318.8.

91. Mr Savvas was then cross-examined in relation to the distance between the plaintiff and himself as he crossed the pedestrian crossing. He said that his evidence in chief that it was “maybe two to three metres, if that” (T228.35) was a “rough guesstimation”: T323.28. He did not know whether in fact the distance was really four metres. He said he was not looking at the plaintiff at the time as he was ahead of him.

92. Mr Savvas was then asked about when he took the plaintiff to Canterbury Hospital. He said that he walked the plaintiff in to as far as the check-in/triage area. He said he initially called staff out but when the nurse said that she would not assist to get the plaintiff out of the car he assisted the plaintiff out and then walked him into the Emergency Department area. He said he did not recall saying anything in relation to the plaintiff when he walked him in. He stated that he did not stay with the plaintiff as the plaintiff was in the triage area and he was not part of the plaintiff's immediate family. To this extent, he said the wording in paragraph 22 of his statement dated 19 March 2016 was wrong. He said he waited for a while next to his car in the car park. When pressed, Mr Savvas said that it was “impossible” that they did not arrive at Canterbury Hospital until 9pm: T325.32.

93. In re-examination Mr Savvas said that he had noted a substantial difference to the lighting in the area of the crossing at the accident site as there had been a change from halogen to LED lighting along Ninth Avenue including at the accident site. He said he had been an electrician for 17 years and was familiar with the types of lights and the lighting differences. Mr Savvas said the lighting now in Ninth Avenue was much brighter.

Photographs

100. There were a number of photographs of the accident site in evidence taken well after the accident. Some of these were annexed to expert reports. Some of the photographs were Google Earth photographs. See also Exhibits E and G.

101. Exhibit D in the proceedings was an overhead photograph taken apparently in 2016 of the area near the accident showing the pedestrian crossing where the plaintiff said he was hit whilst he crossed the road.

Documents from Moeco Excavation & Demolition Pty Ltd

102. The plaintiff gave oral evidence that at the time of the accident he had been working for about a week on a trial basis for Moeco Excavation & Demolition Pty Ltd. The plaintiff said that this involved demolishing the fit out of shops and a restaurant and undertaking heavy labouring duties.

103. In evidence was a letter from the Operations Manager of Moeco Plumbing Services dated 6 December 2018 indicating that documents relating to the plaintiff had been found in the papers of Moeco Excavation & Demolition Pty Ltd. Those documents include a payslip for the period 28 July 2015 to 3 August 2015 showing that the plaintiff was paid a net amount after a deduction for taxation of $1,250 for 37.5 hours of work. A PAYG payment summary from Moeco Excavation & Demolition Pty Ltd to the plaintiff at his home address was also part of Exhibit C.

Medical records for the plaintiff

Records from Canterbury Hospital

104. The plaintiff tendered a number of documents which became Exhibit A in the proceedings. Part of the tender included documents from Canterbury Hospital.

105. The first records relate to the admission of the plaintiff into the Canterbury Hospital Emergency Department on 3 August 2015 and his transfer very early the next morning to Royal Prince Alfred Hospital. The earliest time indicated in the records is 9.08pm. This should be compared to the plaintiff’s oral evidence that he was taken by Mr Savvas to Canterbury Hospital very soon after the accident. As set out above, the Statement of Claim pleads that the accident occurred between 7:00pm and 7:30pm.

106. The first note in the triage comments (later established to be Ms Catalano’s notes) was as follows:

“walke din [sic] by friend states he was hit by a car while crossing the road car did not stop ? loc c/o pain left shoulder and left rib area

walked in usteady on feet covered in glass has lac under chin able to recall most of incident no med hx” (Exhibit A page 29).

107. This comment was recorded by the triage nurse at 9:12pm after a triage time of 9.08pm: see also Exhibit A page 37. The clinical notes include the following:

“deformity to Lt clavicle, 3cm deep laceration to chin, active bleeding, states has glass in mouth?” (Exhibit A page 38).

108. A similar history was provided to the medical practitioner who reviewed the plaintiff, Dr Smith. It is recorded that the plaintiff was hit on the left side and thrown to the road. The medical notes record that there was no tenderness in the cervical spine and the plaintiff had a good range of movement. It was also recorded that the clavicle was not tender but there was pain in the left upper arm and a restricted range of movement (Exhibit A page 39). It was noted that there was an injury to the plaintiff’s left chest wall and it was questioned whether there were fractures (Exhibit A page 41). The plaintiff was given morphine and his mouth was flushed. Having regard to the plaintiff’s injuries, particularly his chin laceration, the plaintiff was transferred to Royal Prince Alfred Hospital.

109. While the plaintiff was at Canterbury Hospital a number of x-rays were taken. There were normal reports in relation to x-rays of the plaintiff’s chest, left humerus and left scapula, with no fractures shown.

110. An x-ray of the plaintiff’s ribs showed a mildly displaced fracture of the left seventh rib posteriorly and also undisplaced fractures of the left sixth, eighth and ninth ribs.

111. The Canterbury Hospital discharge referral relating to the plaintiff refers to a fracture of his ribs. It is stated that there was no cervical spine pain. The symptoms referred to no head injury with the main complaint being of pain in the left ribs and the left arm and the laceration to the chin.

112. There is a further discharge referral report from Canterbury Hospital for 7 August 2015. It is noted that the plaintiff was discharged from Royal Prince Alfred Hospital the day after the accident and has been taking morphine. It is also stated that the plaintiff has been taking Nurofen and Paracetamol but stopped taking Endone due to constipation. The attendance was also to review the plaintiff’s pain and the stitches under his chin. The Emergency Department discharge referral for 7 August 2015 refers to the plaintiff having chest pain secondary to multiple rib fractures following the motor vehicle accident (Exhibit A page 1).

113. The notes include further radiology reports. The plaintiff’s left shoulder, chest, cervical spine and thoracic spine were x-rayed. No fractures were identified. No soft tissue swelling was seen at the cervical spine. Multiple left rib fractures were noted (Exhibit A page 3).

Documents from Royal Prince Alfred Hospital

114. It was noted that there were some traces of a foreign body in the plaintiff’s soft tissue. The plaintiff’s chin laceration was irrigated and then closed with stitches. No tenderness was noted at the midline of the plaintiff’s back (Exhibit A pages 65 and 109).

Campsie Medical and Dental Centre records

115. Part of Exhibit A were records from the Campsie Medical and Dental Centre which the plaintiff said he attended. These records include the following history:

1. 20 May 2002:

“involved in a fight sore left side of neck and shoulder

tender over left trapezius and deltoid”;

2. 4 May 2005:

“punched a wall two days ago,

pain and swelling left hand (left-handed), esp over lateral aspect”;

3. 2 April 2007:

“Fell at soccer yesterday injured lower back

R knee and nose

…

HX of lower back pain after MVA 1/12 ago

Nose. Slight deviation to the L

2. Tender lower lumbar spines

3. R knee. Tender swelling over the patella”;

4. 20 February 2012:

“Broke up with fiance 3/12

Feeling sad and stressed”;

5. 11 August 2015: Dr Lawendy:

“c/o

in a lot of pain [history of MVA noted and discharge letter noted]

no further constipation”;

6. 14 September 2015: Dr Hong Gan:

“MVA with multiple fracture ribs in August 2015

Was seen at TCH

Now also c/o pain left shoulder, neck, upper back

Tender neck, midthoracic region

ROM neck moderate restriction

Tender left shoulder, ROM sl restriction

Tender L lower lateral chest”

7. 22 September 2015: Dr Cheung:

“still has pain around the L shoulder

MVA

X ray report noted

L shoulder: full ROM with some discomfort”;

8. 20 January 2016: Dr Susan Smythe:

“Insurance Form was incomplete, inaccurate, needs another form completed.

Has seen several different doctors about his injuries.

Still has difficulty lifting > 30kg because of pain and weakness chest/left shoulder.

Can’t do his usual work, as it involved a lot of heavy lifting.

…

Needs more physiotherapy.”

9. 6 May 2016: Dr Susan Smythe:

“Pain in left shoulder and upper back is very slow to resolve. Went to gym this week for assessment, had trouble with 20 kg.

Used to lift 50-60 kg prior to the accident

Examination:

mild tenderness over muscles and left anterior axillary line”;

10. 23 August 2016: Dr Hettlaratchi:

“Was in a MVA one year ago Still has pain in the mid thoracic region, lateral to the spine. Pain increases if he uses the right hand to lift something. ? muscular. Trial Mobic.”

Plaintiff’s medicolegal reports

Report of Dr Davis, specialist in occupational medicine

116. The plaintiff tendered a report of Dr John Davis, specialist in occupational medicine, dated 7 December 2017 following an assessment on the same day.

117. In the history, Dr Davis noted that the plaintiff has not undertaken any formal work since the date of the accident and that his last work was with Moeco Demolition & Excavation. The history of injury provided by the plaintiff included him being hit while he was crossing at a marked crossing and being “thrown up onto the bonnet, smashed the windscreen and then thrown heavily to the road. There was an associated period of loss of consciousness”. This was contrary to the recollected detail which the plaintiff provided in his oral evidence. There was no mention of the plaintiff being thrown onto the bonnet and smashing the windscreen in his oral evidence or having a period of loss of consciousness. The plaintiff’s injuries were noted. He is recorded as informing Dr Davis that he had not been able to find any suitable employment since the accident and had not been provided with any assistance by any rehabilitation provider with regard to job seeking.

118. The plaintiff reported continuing pain around the cervico-thoracic spinal region and pain beneath the left scapula. In cold weather the plaintiff said that his ribs hurt and that his symptoms were aggravated if he lies on his side for too long or engages in heavy lifting or using force or attempting to perform any work above shoulder height. Upon examination, Dr Davis noted the plaintiff’s scar beneath his chin and there being cervical tenderness from C5-C7 centrally and on the left side and further tenderness at T2-T4. A full range of movement on the right side of the shoulder was noted and there were no abnormal neurological findings to the plaintiff’s upper limb. The various radiological studies were noted.

119. Dr Davis diagnosed:

1. Mechanical trauma to the cervical region;

2. Mechanical trauma to the upper thoracic spine;

3. Functional impairment of the left upper limb due to referred pain into the left upper thoracic region and also over the mid to lower lateral ribs;

4. Facial scarring.

120. Dr Davis was of the view that the plaintiff’s injuries were consistent with the stated mechanism of trauma in the accident and there was no evidence of any degree of embellishment or exaggeration during the assessment. Dr Davis’ prognosis was for continuing variable pain which will depend upon the activities which the plaintiff does. Dr Davis expressed the opinion that the plaintiff had permanent restrictions in relation to a number of matters including lifting and carrying repetitively greater than 7kg and repetitive reaching or work above shoulder height. Dr Davis was of the view that the plaintiff was not capable of returning to work of a heavy or forceful nature and would thus not be able to return to his pre-injury duties. Retraining possibly in car sales was recommended.

121. In addition, further treatment recommendations were made with some recommendation for two hours of paid commercial domestic assistance per week on an ongoing basis.

Reports of Dr Browne, specialist rheumatologist

122. The plaintiff tendered two reports of Dr Christopher Browne, specialist rheumatologist.

123. In his first report dated 8 November 2016, Dr Browne noted that the plaintiff’s cervical spine was mobile and pain free, there was a limited range of movement in the left shoulder, the right shoulder was unremarkable and there was a scar under the plaintiff’s chin. It was noted that thoracic rotation to the left tended to increase the plaintiff’s chest wall pain. Dr Browne diagnosed a laceration of the chin, multiple left rib fractures and thoracic spine pain and left shoulder pain syndrome.

124. Dr Browne was of the view that the pain and impairment related to the accident as described and the plaintiff was only fit for light duties and needed to be retrained for suitable work. He also recommended medical review and physiotherapy in the future. Domestic assistance was not required except for managing the garden or heavier household activities. Dr Browne’s prognosis for recovery was favourable.

125. In his second report dated 22 April 2019, Dr Browne recorded the plaintiff stating that subsequent to the accident his main residual problem had been left sided chest wall pain. The plaintiff also reported left scapula pain when carrying loads and when running. He stated that he has neck and shoulder pain or restriction. The plaintiff noted that he was self-sufficient with cleaning and vacuuming.

126. On examination the plaintiff had a full range of movement in the cervical spine and some limitation at the left shoulder. His diagnosis was multiple left rib fractures following trauma with residual chest wall pain and chin laceration.

127. Dr Browne was of the view that the injuries and clinical sequelae were consistent with the accident history and that the plaintiff was limited in his work activities and “probably not suited to lifting and carrying of heavy loads or duties requiring him to bend and work in awkward positions in the long term.” The plaintiff’s future treatment needs were said to be minimal and he had made a reasonable recovery.

Plaintiff’s liability evidence

128. The plaintiff tendered the following expert reports on liability:

1. a report of Mr John Jamieson, engineer and traffic accident expert, dated 4 April 2019;

2. a further report of Mr Jamieson dated 5 November 2019; and

3. a conclave report of Mr Jamieson and the expert retained on behalf of the defendant, Mr Michael Griffiths.

129. In the first report dated 4 April 2019, Mr Jamieson was asked to analyse the alleged accident from an engineering/scientific viewpoint on the assumption that statements made by the plaintiff and Mr Savvas about the circumstances of the accident were true and correct. He was also asked to examine the report of Mr Griffiths.

130. Mr Jamieson inspected the accident site at night time on 1 April 2019. He described the site and attached a number of photographs showing the assumed approach of the plaintiff and Mr Savvas. He noted that there was floodlighting above the pedestrian crossing which, from the photographs, he stated was almost certainly present at the time of the accident.

131. Mr Jamieson noted the possibilities that the unidentified vehicle was travelling either directly along Ninth Avenue or alternatively was initially travelling south on Second Avenue and then turned left into Ninth Avenue at Campsie. Mr Jamieson included with his report various photographs taken at night by him including of the pedestrian crossing (see page 14 of his report). He expressed the view that having regard to the closeness of the pedestrian crossing to the roundabout, the positioning of the crossing was “sub-optimal” (page 18 of his report). He stated that the floodlighting of the crossing appeared to be in accordance with the relevant Australian Standard and the roundabout and crossing were well lit (page 18 of his report).

132. Mr Jamieson then set out the three statements provided by the plaintiff. In the first statement the plaintiff stated:

“The car struck me and I think I fell to the ground … I felt glass around me and some glass in my mouth. I felt pain in my arm, my ribs, my shoulder and my back.”

133. In the second statement the plaintiff stated:

“In the process of being struck by the vehicle, I was thrown up onto the bonnet, smashed the windscreen, then thrown heavily to the road. I injured my head, neck, left shoulder, upper back and was bleeding heavily. I also received facial injuries and severe blows around the rib area.”

134. In the third statement the plaintiff said that he looked in both directions before crossing the road, did not see any vehicles or headlights approaching and then stated:

“When the east bound vehicle struck me I initially felt the front of the vehicle impact my left upper torso after which was thrown up onto the bonnet of the vehicle and the left side of my body and head smashed into the windscreen of the vehicle breaking the windscreen.”

135. A diagram prepared by the plaintiff of the area was included (page 23 of the report). A statement of Mr Savvas dated 15 August 2015 was extracted where he states that he could see broken glass around the plaintiff.

136. Mr Jamieson noted various inconsistencies in the statements.

137. Having regard to the rest position of the plaintiff being still within or near to the crossing, Mr Jamieson was of the view that there was not a frontal impact with the unidentified vehicle but rather that it was feasible the plaintiff was side-swiped by the left side of the vehicle moving at a significant rate (report pages 26, 27-28). Mr Jamieson was also of the view that from a traffic engineering viewpoint the more likely approach path of the unknown vehicle was from Second Avenue possibly with the vehicle’s attention being drawn to the right while turning left into Ninth Avenue. Mr Jamieson put forward a scenario where the driver of the unknown vehicle was distracted by east bound vehicles on Ninth Avenue, was not conscious of the pedestrian crossing and was confronted with the pedestrian on the crossing with having insufficient time or distance to avoid the collision and a side-swipe impact occurred. Mr Jamieson was of the view that the scenario was a “feasible” set of circumstances from a traffic engineering and physics viewpoint.

240. Having regard to all of these different matters, in my view the defendant has established that the plaintiff was incapacitated from engaging in any work, including the work which he performed at the time of the accident, from the beginning of January 2018 until at least the date of trial. It is clear that at the time of completion of the trial the plaintiff was still recovering from his operation and his thyroid condition and the time of recovery was uncertain: T43.35-.43 and T149.47-T150.19.

241. Accordingly, in my view the plaintiff's primary area of pain and restrictions in heavy work was in the period from the date of the accident until the end of 2017 which was the time of the examination by Dr Davis.

242. In relation to the position at present, the plaintiff has continuing problems with his foot, thyroid and gallbladder removal. His time of recovery from these conditions is uncertain.

Consideration

Duty of care and breach of duty of care

257. Having regard to my findings that the plaintiff has not established on the balance of probabilities that an accident occurred at the time and place stated by him and Mr Savvas, there is no accepted evidence establishing that the plaintiff’s undoubted injuries suffered on 3 August 2015 occurred in the course of a motor vehicle accident giving rise to any liability.

258. I consider the issue in the event I am found to be in error in relation to my primary findings.

259. If it is found that I have erred and that on the evidence the plaintiff was struck by a motor vehicle whilst he was crossing the pedestrian crossing at Ninth Avenue on the evening of 3 August 2015 in circumstances where the crossing on all the evidence was well lit at the time, the plaintiff’s position, in my view, is more straight forward.

260. Pursuant to s 3B(2)(a) of the Civil Liability Act (CLA), Divisions 1-4 and 8 of Part 1A apply to motor accidents. Accordingly, the court must consider ss 5B, 5C and 5D of the CLA.

261. The alleged unidentified driver in the present case clearly owed a duty of care to the plaintiff on his version of the facts: Marien v Gardiner [2013] NSWCA 396 at [33]-[35].

262. The risk of injury in the present case is the risk of striking a pedestrian and injuring them on the pedestrian crossing if a driver did not exercise due care in negotiating the roundabout and proceeding across the pedestrian crossing at a reduced speed.

263. The question whether there has been a breach of duty of care is to be addressed prospectively and by reference to what a reasonable driver in the circumstances of the unidentified driver would have done by way of response to any foreseeable risks of injury or sources of danger. The driver must take into account all users of the roadway including pedestrians: see paragraphs 33-34 of Marien v Gardiner. As the High Court made clear in Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413, driving requires reasonable attention to all that is happening on and near the roadway. Simultaneous attention to a number of different features of what is already, or may later come to be, ahead of the vehicle’s path must be considered: see at [11].

264. In paragraph 75(iv) of his written submissions dated 26 November 2019, senior counsel for the defendant points to the expert evidence of Mr Jamieson that the pedestrian crossing was only eight metres east of the roundabout and submits that having regard to the speed the unknown driver would have been travelling, there was not sufficient time or distance to avoid a collision with the plaintiff and the plaintiff has therefore failed to establish a breach of duty of care in accordance with s 5B of the CLA.

265. On page 18 of his first report dated 4 April 2019 (Exhibit B), Mr Jamieson states that the positioning of the crossing, only eight metres east of the roundabout, was considered by him to be “sub-optimal”. At page 28 of the same report, he refers to the hypothetical driver being confronted with the pedestrian on the crossing and having insufficient time or distance available to avoid them.

266. Sections 5B and 5C of the CLA provide as follows:

“Division 2 Duty of care

5B General principles

(1)  A person is not negligent in failing to take precautions against a risk of harm unless:

(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)  the risk was not insignificant, and

(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)  In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)  the probability that the harm would occur if care were not taken,

(b)  the likely seriousness of the harm,

(c)  the burden of taking precautions to avoid the risk of harm,

(d)  the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence:

(a)  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)  the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

267. The analysis required by these sections will now be undertaken:

1. Was the risk foreseeable, that is, that it was a risk of which the defendant knew or ought to have known? In my view, the risk was clearly foreseeable. A person slowing at the roundabout and probably looking to their right should have slowed to a sufficient speed to assess all of the conditions around them. On the evidence, the crossing was well lit and was a short distance to the left. It would have been apparent to any reasonable driver coming up to the crossing. The risk of hitting someone on the crossing if the driver did not sufficiently slow down was, in my view, foreseeable;

2. The risk was not insignificant. The area that was lit was a pedestrian crossing and its surrounds. It was clearly possible for pedestrians to be crossing the crossing despite the allegation that the accident occurred in the evening. The fact the area was well lit showed that it was an area of some importance on the road. In my view, the risk of hitting someone on the crossing if the driver did not slow down was not insignificant;

3. In the circumstances, a reasonable person in the person’s position would have taken those precautions. In my view, a reasonable person in the position of the alleged offending driver would not have proceeded either directly or to the left from Second Avenue without slowing down sufficiently to stop at the pedestrian crossing for anyone proceeding across it;

4. The probability that the harm would occur if care were not taken. In my view, it was highly probable that a person could be injured if the offending vehicle driver did not slow down to allow a person to cross the road;

5. The likely seriousness of the harm. A person being struck by a motor vehicle if it did not slow down near the crossing would likely cause serious injury;

6. The burden of taking precautions to avoid the risk of harm. This was not extensive. All the offending driver had to do was slow down his vehicle and take into account both the possibility of persons driving on the roundabout and also the well-lit area near the crossing and the crossing itself and to proceed slowly accordingly;

7. There was no particular social utility of proceeding quickly across the crossing. The social utility of slowing down to avoid injury to pedestrians was significant.

268. Overall, in my view, in the event that I am in error in relation to my factual findings, and the version of the plaintiff is accepted, a reasonable person in the position of the offending driver having regard to the location and the lit up area would have slowed down to avoid hitting the plaintiff. In coming to this conclusion, I take into account Regulation 81 of the Road Rules 2014 (NSW) which requires a driver to give way to any pedestrian on a pedestrian crossing and obliges the driver, in approaching the crossing, to drive at a speed at which the driver can, if necessary, stop safely before the crossing.

269. Accordingly, on the facts put forward by the plaintiff, there would have been a breach of duty of care by the offending driver. I reject the defendant’s submission to the contrary for the reasons given.

Causation

270. On the plaintiff’s factual version, that he was struck whilst crossing the pedestrian crossing, the injuries suffered by Mr Elkodat would not have occurred if the offending driver had exercised reasonable care. Accordingly, I find that causation would have been established. But for the breach which I have found on the hypothetical facts, Mr Elkodat would not have suffered the injuries which he did.

Contributory negligence

271. Contributory negligence was not pleaded by the Nominal Defendant. Accordingly, it need not be considered. No submissions were made on behalf of the defendant in relation to contributory negligence.

Damages

272. It is necessary for me to assess the damages which I would have awarded the plaintiff if he was successful in establishing breach and causation.

273. The competing amounts submitted by the parties as to damages were as follows:

Head of Damages	Plaintiff’s submission	Defendant’s submission
Non-economic loss	Not claimed	Not claimed
Past economic loss	$175,851.00	$5,000.00
Future economic loss	$48,920.00	Nil
Loss of future superannuation benefits	$5,626.00	Nil
Past domestic assistance	Not claimed	Not claimed
Future domestic assistance	$6,759.00	Nil
Past out of pocket expenses	Agreed if plaintiff succeeds on liability as $674.60	Agreed if plaintiff succeeds on liability as $674.60
Future out of pocket expenses	$4,489.00	Nil

Non-Economic loss

274. No claim was made for damages for non-economic loss by the plaintiff.

Past out-of-pocket expenses

275. The parties agreed that the CTP Insurer for the defendant has paid $7,637.96 of expenses to the plaintiff. The payment of these expenses before the plaintiff obtained any judgment, amounts to a defence to proceedings by the plaintiff against the defendant for damages for such items: s 83(5) of MACA. Past out of pocket expenses are agreed if the plaintiff is successful as to his liability case at $674.60.

Future out-of-pocket expenses

276. The plaintiff claims $4,489 for future out of pocket expenses relating to analgesics and a core stabilising programme. The evidence establishes that the plaintiff is currently not obtaining treatment in relation to his injuries. In my view, having regard to that and the medical evidence, there is no justification for the amount sought for the core stabilising programme. In relation to future non-prescription analgesics, I have found that the plaintiff has intermittent mild symptoms and I allow a lump sum for non-prescription analgesics as a buffer of $300.

Past loss of earning capacity and wages

277. The plaintiff seeks compensation for past loss of wages and earning capacity. The evidence establishes that the plaintiff was in paid employment on a trial basis at the time of the alleged accident. I have also found that the plaintiff has not been fit for his pre-accident employment (or any other employment requiring fitness and strength) since the beginning of 2018 for reasons unrelated to the accident. Accordingly, the position to be considered is the period from 3 August 2015 to about mid-January 2018.

278. In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [24] Basten JA stated that the provisions of MACA do not appear to depart from or vary the general principle at common law that the compensable loss to an injured plaintiff is not a loss of income but the loss of capacity to earn income which “is or may be productive of financial loss”: Graham v Baker (1961) 106 CLR 340 at 347 and New South Wales v Moss (2000) 54 NSWLR 536 at [71]. His Honour noted that income earned prior to the accident may well be the best evidential basis to assess the earning capacity of a plaintiff but that income earned between the accident and the trial may also be (but often is not) a good indicator of current capacity. A plaintiff attempting to establish a diminution in earning capacity is not required to identify the value of the loss with great precision.

279. On the evidence, the following is apparent:

1. The plaintiff’s work history prior to the accident was not strong;

2. This work history did not reveal any employment involving extensive heavy physical labour over a lengthy period;

3. The work history showed extensive periods of unemployment prior to the accident;

4. The plaintiff’s wage in the week prior to the accident was established;

5. The plaintiff had been employed for only a week undertaking heavy physical work on a trial basis prior to his injuries.

280. The question therefore arises for determination as to the proper approach to adopt to assess the plaintiff’s past loss of earning capacity as a result of his injuries.

281. The plaintiff claims an amount of $175,851 based on the plaintiff’s net earnings at Moeco for the period from the date of the accident to 1 July 2018. The latter is chosen because of the plaintiff’s alleged incapacity for unrelated medical conditions from that date. I have found above that the plaintiff could not have worked in his job at Moeco from mid-January 2018. The defendant submits that a buffer of $5,000 for past economic loss only should be allowed.

282. Based on the plaintiff’s poor past working history, the apparent lack of work experience with heavy labouring jobs, the trial basis of the employment and the plaintiff’s evidence of his state of mind in the years after selling his bait and tackle shop, I think it is highly unlikely that the plaintiff would have stayed working at Moeco for the period claimed by his counsel in his submissions. There is also the possibility that Moeco would not have retained the plaintiff at the end of the trial period. I think the most likely result is that the plaintiff would have stayed working at Moeco for a period of somewhere between three and twelve months (although it could have been less) and thereafter have obtained occasional modestly paid work in the motor car sales and maintenance industry in which he had some experience.

283. In my view, the proper way to deal with this period, having regard to the considerable uncertainties involved in the light of the plaintiff’s work history and lack of experience with heavy labouring work, is to award a buffer or cushion.

284. Taking into account the net earnings at Moeco in the week prior to the accident, the plaintiff’s long periods of unemployment, the plaintiff’s lack of experience with heavy labouring work, the fact that he was only on a trial basis with Moeco and the fact that the plaintiff had previously had little work since his bait and tackle shop was sold, I would allow the sum of $40,000. This represents the possibility of continued work at Moeco for several months and some additional modest earnings from other limited work in the motor car industry.

Loss of future earning capacity

285. The plaintiff seeks an amount of $48,920 for future economic loss being a cushion equal to two years at 50% of the past net loss per week of earnings at Moeco with a discount for vicissitudes of life and an amount of $5,626 for lost superannuation on future lost earnings.

286. The defendant submits that nothing should be awarded.

287. Any award of damages for loss of future earning capacity under MACA is determined by s 126 of the Act which provides as follows:

“126 Future economic loss—claimant’s prospects and adjustments (cf s 70A MAA)

(1)  A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)  When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3)  If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

288. Having regard to the plaintiff’s current medical problems, it is unclear when he will be fit to undertake paid employment in the future.

289. In my view, the plaintiff’s most likely future circumstances but for the injury within s 126(1) of MACA are that the plaintiff would have left his employment at Moeco after an uncertain period of time and then likely sought paid employment in the motor car sales and maintenance industry, cleaning cars or undertaking collection or delivery duties as he had previously completed or obtained a job in retail. It must be recalled that he had substantial background experience at his bait and tackle shop. I think it very unlikely that the plaintiff in the future would undertake heavy labouring work such as he had completed for one week prior to the alleged accident.

290. Having regard to my medical findings which are set out above to the effect that the plaintiff is currently fit to engage in his pre-accident employment when considering his injuries in the alleged accident, I find that there is no loss of future earning capacity. When the plaintiff recovers from his non-accident related health problems, he will not be prevented by the accident from seeking and engaging in paid employment.

291. Even if I am wrong in this conclusion, there is nothing in the medical evidence or my medical findings to suggest that the plaintiff would have been physically unable to complete the tasks I have suggested in the motor car industry or in retail. Accordingly, I find that the plaintiff’s claim for future loss of earning capacity and future superannuation benefits has not been established.

Past domestic assistance

292. No claim is made by the plaintiff for damages for past domestic assistance.

Future domestic assistance/commercial assistance

293. The plaintiff makes a claim for future commercial assistance for two hours per week relying on the report of Dr Davis: Exhibit A page 14.

294. The majority of the medical evidence is against that recommendation and I note that Dr Davis’ report is dated 7 December 2017 following an assessment on that date. It should be noted that the plaintiff has always lived at his parents’ house in a granny flat.

295. In Dr Browne's report dated 22 April 2019 he noted that the plaintiff was self-sufficient in terms of activities of daily living and was able to do cleaning and vacuuming: Exhibit A page 172. Dr Browne expressed the opinion that the plaintiff did not require any domestic personal assistance as a result of the injuries: Exhibit A page 173. He also expressed the opinion that the plaintiff “has made a reasonable recovery from the initial injuries”. Dr Machart in his most recent report dated 26 July 2019 expressed the opinion that domestic assistance was not required for the plaintiff beyond the first six weeks: Exhibit 1 page 25. Similarly, Dr Sekel expressed opinions which did not support any claim for future domestic or commercial assistance: Exhibit 1 page 40.

296. At T144.29-.42 the plaintiff gave evidence that he could mow the lawns now, vacuum inside the house and do day-to-day maintenance including cleaning. He had also been cleaning the pool at his parents’ house at the time he injured his foot: T144.4.

293. Based on the above evidence I am satisfied that the plaintiff is now able to undertake all necessary domestic activities and accordingly the claim for domestic and commercial assistance for the future is rejected. No need for commercial assistance is established. See Smith v Alone [2017] NSWCA 287 at [73]-[77].

Summary of damages

298. Accordingly, if I had found for the plaintiff, I would have allowed the following amounts:

Head of damage
Non-economic loss	Not claimed
Past economic loss	$40,000.00
Future economic loss	Nil
Future loss of superannuation benefits	Nil
Past domestic assistance	Not claimed
Future domestic assistance	Nil
Past out of pocket expenses	$674.60
Future treatment expenses	$300.00
Total	$40,974.60

Determination

299. For the above reasons, I make the following orders:

1. Judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.

3. Liberty to the parties to apply within 14 days for a different costs order to that in (2).

4. Exhibits to be returned in 28 days.

**********

Decision last updated: 14 February 2020