Emvalomas v Bradley
[2012] NSWDC 7
•09 February 2012
District Court
New South Wales
Medium Neutral Citation: Emvalomas v Bradley [2012] NSWDC 7 Hearing dates: 5, 6, 7 & 21 October 2011 Decision date: 09 February 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff in the sum of $1,130,455;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise entitled;
3.The exhibits may be returned;
4.Liberty to apply if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - motor vehicle collision - pedestrian struck by motor vehicle at an intersection controlled by traffic control signals - factual dispute as to the colour displayed by traffic lights for control of vehicular and pedestrian traffic - factual dispute as to the relevant sequence of events; DAMAGES - whether failure to mitigate where treatment was delayed because CTP insurer declined to pay for recommended treatment - assessment of claimed heads of damage Legislation Cited: Australian Road Rules 2008, r 231
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999. s 126, s 128, s 136Cases Cited: Amoud v Al Batat [2009] NSWCA 333
Arnott v Choy [2010] NSWCA 259
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345
Flounders v Millar [2007] NSWCA 238
Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Manly v Alexander [2005] HCA 79
Mason v Demasi [2009] NSWCA 227
Miller v Galdarisi [2009] NSWCA 353
State of NSW v Moss [2000] NSWCA 133
Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165Category: Principal judgment Parties: Nicki-Lea Emvalomas (Plaintiff)
Janet Ruth Bradley (Defendant)Representation: Mr A Lidden SC with Mr M Daley (Plaintiff)
Mr JJ Ryan (Defendant)
Brydens (Plaintiff)
Curwoods (Defendant)
File Number(s): 2010/101250
Judgment
Table of Contents
A
INTRODUCTION
Nature of case
[1]
Facts not in dispute
[2] - [8]
Issues
[9] - [12]
Summary of findings
[13] - [17]
Evidence overview
[18] - [23]
Assessed heads of damage
[24]
B
LIABILITY EVIDENCE REVIEW AND FINDINGS
Plaintiff's pre-accident situation
[26] - [27]
Array of eyewitness descriptions of the events
[28] - [99]
Miss Devine
[29] - [43]
Plaintiff
[44] - [53]
Ms Chandler
[54] - [56]
Mr Miller
[57] - [77]
Defendant
[78] - [99]
Police investigation of the events of the collision
[100] - [130]
Defendant's statement to police
[101] - [104]
Plaintiff's statement to police
[105]
Sgt Burrows
[106] - [130]
Assessment of reliability of testimony
[131] - [209]
Ms Chandler
[134] - [140]
Mr Miller
[141] - [158]
Miss Devine
[159] - [166]
Plaintiff
[167] - [179]
Mrs Farrelly
[180] - [186]
Miss Farrelly
[187]
Defendant
[188] - [206]
Sgt Burrows
[207] - [209]
Conclusions concerning the facts of the accident
[210] - [235]
Negligence and causation
[236] - [246]
Alleged contributory negligence
[247] - [254]
C
DAMAGES EVIDENCE REVIEW AND FINDINGS
Initial assessment and treatment of the plaintiff
[258] - [264]
Injuries
[265] - [280]
Medical and allied assessments
[281] - [325]
Disabilities that remain
[326] - [364]
Effects on employment and leisure activities
[365] - [371]
Mitigation
[372] - [380]
D
ASSESSMENT OF DAMAGES
Plaintiff's remaining years
[382]
Non-economic loss
[383] - [394]
Future loss of earning capacity
[395] - [450]
Future loss of superannuation
[451]
Future domestic assistance
[452] - [501]
Future out-of-pocket expenses
[502] - [515]
Past out-of-pocket expenses
[516]
Summary of damages assessment
[517]
E
DISPOSITION, COSTS & ORDERS
Disposition
[518]
Costs
[519]
Orders
[520]
A. INTRODUCTION
Nature of case
This is a disputed claim for damages for personal injury brought by the plaintiff, Nicki-Lea Emvalomas, against the defendant, Mrs Janet Bradley, involving alleged negligence in the driving of the defendant's motor vehicle, leading to a collision with the plaintiff, a pedestrian, on a marked pedestrian crossing at an intersection controlled by traffic lights. The plaintiff suffered horrendous injuries in the accident. Her injuries primarily involved a degloving injury to the scalp. This has resulted in permanent physical, cosmetic and psychological disabilities. In final submissions counsel for the defendant fairly and aptly acknowledged that the circumstances of the plaintiff's injury defied description.
Facts not in dispute
At about 12.45pm on Thursday 8 November 2007, the plaintiff, then a 14 year old high school pupil, was a pedestrian in school uniform. She was walking together with her school companion Miss Kimberly Devine, in a northerly direction across Melrose Avenue at the intersection of Port Hacking Road and Melrose Avenue, Sylvania. At that time the plaintiff was struck by the front bonnet of the motor vehicle being driven by the defendant whilst the defendant was in the course of making a left turn from Melrose Avenue into Port Hacking Road.
Immediately before the collision, the defendant had been driving her vehicle east in Melrose Avenue when she commenced to make her left turn into Port Hacking Road in order to travel north on that road. The plaintiff was crossing from the southern kerb of the intersection of Melrose Avenue and Port Hacking Road. She was crossing in a general northerly direction. She had almost completed her crossing and was about 2 steps from the kerb when she was struck by the defendant's vehicle.
At the scene, Melrose Avenue was divided by a median strip, with one lane reserved for westbound traffic and two lanes reserved for eastbound traffic.
At the intersection, eastbound traffic in Melrose Avenue faced traffic control lights. Those lights consisted of a turning arrow signal in lane 1, or the kerbside lane, controlling traffic turning left into Port Hacking Road. Traffic intending to turn right into Port Hacking Road had to do so from lane 2, but there was no right turning arrow signal, thus requiring that traffic wait at the intersection until a suitable break occurred in the traffic to permit a right turn.
Northbound pedestrians walking in the direction taken by the plaintiff faced pedestrian traffic control lights that displayed " Walk " and " Dont Walk " symbols for the control of pedestrian traffic. There is no dispute that after a solid green " Walk " symbol was displayed for pedestrians crossing Melrose Avenue, that signal was phased to then change into a red flashing red " Dont Walk " or " red man " symbol before then changing to turn into a solid red " Dont Walk " symbol.
There was no evidence as to the duration of time for each of those phases on the day in question. There was no dispute that during the display of the green " Walk " signal and the red flashing " Dont Walk " signal, east-facing traffic in Melrose Avenue faced a red left turn arrow signal.
The impact between vehicle and pedestrian occurred within the marked crossing in lane 1 of Melrose Avenue at a point close to the kerb of the northern footpath. At the time there were 2 stationary vehicles in lane 2 or the median strip lane of Melrose Avenue waiting to make a right turn. The first vehicle in that line of traffic was, on the account of an independent eyewitness, a sedan vehicle, or on the defendant's account, a four-wheel drive vehicle, and behind that vehicle was a 12 metre long 12 tonne bus with space for seating 57 passengers. At the time the accident occurred, the plaintiff and her walking companion, both school girls, were on their way to a regular afternoon school sports event.
Issues
The defendant denied that there was any alleged negligence on her part, and raised an issue of alleged contributory negligence on the part of the plaintiff. The defendant also disputed the extent of the plaintiff's claim for damages for her injuries.
The pivotal factual issues that emerged from the liability evidence were the state of displayed colours and symbols of the traffic and pedestrian control lights that had faced the respective parties immediately before the collision. A related issue was the state of those traffic lights at an earlier time when the plaintiff had left the southern kerb of Melrose Avenue at the intersection. A further related issue was the colour of the east-facing traffic signals that faced the defendant in Melrose Avenue in the lead-up to the collision with the plaintiff.
A further issue was whether the plaintiff had been running across the road at any time prior to the impact, and if so, at what stage of her crossing had this occurred.
The resolution of all of those factual issues was dependent upon an analysis of an array of conflicting factual evidence as to the state of the traffic lights, and the conflicting observations of the respective witnesses. This required assessment of the credibility and the reliability of the testimony of those witnesses.
Summary of findings
Although I have considered the plaintiff's liability and damages evidence as a whole in evaluating the credibility and reliability of her evidence, for convenience, in view of the considerable body of the evidence, and in my review of that evidence which I have set out in my reasons, I have separately set out the summary and factual findings on the liability and damages issues. In my assessment, nothing of significance arose within the evidence that adversely impacted upon the evaluation of the plaintiff's credit on factual matters.
On the pivotal liability issues I have preferred the evidence of the plaintiff and Miss Devine to the evidence of the defendant and the witnesses called on behalf of the defendant.
I have found that the plaintiff has established that her injuries occurred as a result of the negligence of the defendant as claimed. My reasons for that finding appear at paragraphs [236] - [246] of my reasons.
I have found that the defendant has failed to establish that there was any contributory negligence on the part of the plaintiff. My reasons for that finding appear at paragraphs [247] - [254] of my reasons.
I have assessed the plaintiff's entitlement to damages in the sum of $1,130,455 . My reasons for that finding appear at paragraphs [282] - [516] of my reasons.
Evidence overview
In the plaintiff's case, oral evidence was given by the plaintiff, her friend and former fellow school student Miss Kimberly Devine, the plaintiff's sister, Miss Sarah Farrelly, and her mother, Mrs Janelle Farrelly.
In the defendant's case, oral evidence was given by the defendant, as well as Ms Sylvia Chandler, who was seated in her nearby stationary vehicle at the time, and a bus driver, Mr Douglas Miller, who was also seated in nearby stationary traffic when the accident occurred. The defendant also called a police officer, Sgt Burrows, who, as a Leading Senior Constable at the time, took part in the police investigation of the events of the collision.
Each party tendered bundles of medical and allied reports. None of the authors of those reports were called to give oral evidence. The defendant also tendered copies of some of the plaintiff's school reports.
The defendant challenged the reliability of the factual accounts given by the plaintiff and Miss Devine concerning the events of the collision. The principal point at issue in that challenge was whether the display on the pedestrian control lights had in fact permitted the plaintiff to cross the intersection at the time, or whether the plaintiff had run across the road contrary to the direction of a solid red " Dont Walk " signal.
The plaintiff challenged the reliability of the evidence respectively given by the defendant, Ms Chandler, Mr Miller and Sgt Burrows. The matters at issue in those challenges were, essentially, the reliability of, and factual basis for, the testimony of the defendant, Ms Chandler and Mr Miller insofar as their testimony suggested that the plaintiff had crossed the intersection contrary to the direction of a solid red " Dont Walk " signal, and whether or not the plaintiff had run across the defendant's path of travel. The challenge to the evidence of Sgt Burrows concerned the basis for some of the factual matters set out in the police statements taken from both the defendant and the plaintiff regarding the accident, and the general adequacy of the police investigation into the events of the collision.
I have set out my reasons for the resolution of those conflicts following my summary of the material parts of the testimony of each of those witnesses. This follows my reasons for my determination of the credit or reliability of testimony issues that called for decision in the proceedings.
Assessed heads of damage
The plaintiff claimed 6 heads of damage. Those heads of damage, and the related damages submissions by the parties, are listed below, together with the paragraph references to my assessments of those damages:
Head of Damage claimed by plaintiff
Plaintiff's Submissions
Defendant's Submissions
Award
Paragraphs
(a) Non-economic loss
$325,000
$150,000
$325,000
[383] - [394]
(b) Future loss of earning capacity
$619,331
$75,000 incl superannuation
$487,611
[395] - [450]
(c) Future loss of superannuation
$68,126
$Nil
$53,637
[451]
(d) Future domestic assistance
$289,604
$Nil
$229,827
[452] - [501]
(e) Future out-of-pocket expenses
$50,000
$10,000
$30,000
[502] - [515]
(f) Out-of-pocket expenses
$4,380
$4,380
$4,380
[516]
Totals
$1,356,441
$239,380
$1,130,455
B. LIABILITY EVIDENCE REVIEW AND FINDINGS
In the paragraphs that follow I identify the plaintiff's pre-accident circumstances, followed by a summary of the differing liability descriptions from the various eyewitness accounts as that summary has served as an aide to my analysis. What then follows are my findings on the contentious matters of fact on the liability issues.
Plaintiff's pre-accident situation
The plaintiff was born in 1993. At the time of her injury she was aged 14 years. She was aged 19 years at the time of the hearing. Before the accident, she was in good health and she was fit and active. She enjoyed a high level of physical fitness and was proficient in a variety of forms of dance, an activity that occupied a significant proportion of her spare time and her ambitions for her future. The activities associated with dance were important to the plaintiff, as they provided her with a feeling of wellbeing.
At the time of her injury the plaintiff was a Year 9 student at Sylvania High School. Her pre-injury school reports across a range of subjects showed she was a generally well-motivated, polite and diligent student, with strengths in the subjects of Dance and Mathematics, with recognised talent in Physical Education. In other subjects, where her strengths were less pronounced, she had demonstrated a pre-injury preparedness to make diligent efforts to progress.
Array of eyewitness descriptions of the events
In the paragraphs that follow, I set out a summary of the evidence of the respective witnesses on the factual matters concerning liability.
Evidence of Miss Devine
On the day of the accident, in the course of attending to their regular Thursday afternoon sporting activities, the plaintiff and her long-standing friend, Kimberly Devine, had walked from their school toward the nearby Southgate Shopping Centre. Miss Devine described how she and the plaintiff had walked to the cross intersection of Melrose Avenue and Port Hacking Road. That journey had taken them about five minutes from their school.
They were on their way to a nearby gymnasium for weight training exercises as part of the requirements of their dance classes which were a part of their curriculum, but beforehand they needed to go to a nearby shop to purchase some necessary items.
Another group of about 30 students had already walked ahead of the plaintiff and her friend toward another gymnasium at a nearby tenpin bowling centre in order to pursue their own scheduled sporting activities. Before the collision, that larger group of students that had preceded the plaintiff and her friend, had already walked some distance ahead of the plaintiff and Miss Devine, and they had already crossed the intersection well before the plaintiff was struck by the defendant's vehicle.
In her evidence in chief, Miss Devine was unable to provide an estimate of the distance that had separated the two groups of students, but in cross-examination, she agreed with the proposition that the distance could have been of the order of about 200m or so. No evidence was called to contradict that account, and I accept that proposition.
The intersection in question was controlled by traffic and pedestrian control signals. The evidence did not deal with the precise detail of the prevailing phasing pattern of those lights, but it was accepted by the parties that at the time, the lights provided for pedestrian and vehicular traffic in alternative phases as described in paragraphs [6] and [7] above.
The plaintiff and Miss Devine had commenced to walk in a northerly direction along Melrose Avenue. They were crossing together, walking almost side-by-side, with Miss Devine walking slightly ahead of the plaintiff. As they walked, they were holding hands. They were walking within the portion of the intersection that was marked for pedestrians to cross the road.
Miss Devine stated that at the commencement of their crossing of the intersection, a green pedestrian traffic control symbol was displayed and was facing them as they crossed. Miss Devine stated that they had commenced walking across the intersection at a normal pace and continued to do so until the pedestrian lights started to flash red. She said that this had occurred when they were about half way across the road, at which time they had started to walk more quickly. This account was challenged by the defendant.
Miss Devine stated that in the course of the events she had described, she had almost completed her own crossing, and had either stepped up onto the gutter of the western side of Melrose Avenue, or was within about 2 steps or so of reaching that position, at which time she realised that the plaintiff, who had been on her right, was no longer holding her hand.
At this time, Miss Devine stated that she had turned, as her attention had been drawn to the defendant's vehicle, which was making a left turn around the corner where they were crossing, in order to travel north in Port Hacking Road. Miss Devine made the observation that the defendant's vehicle was at that time making a loud screeching noise, and was accelerating violently. Those observations were also disputed by the defendant.
At this point, Miss Devine said that she then ran to the defendant's vehicle, screaming and banging on the vehicle as it continued moving forward in Port Hacking Road. Miss Devine stated that the defendant's vehicle had then continued to proceed forward a distance of about some 3-4 car lengths along Port Hacking Road, and at the time the plaintiff was also being dragged along with it. At that time the plaintiff was underneath the vehicle, and she was screaming.
Miss Devine stated that later, a man had approached the defendant's vehicle and had told the defendant to drive forward because the plaintiff was trapped under the vehicle. Miss Devine stated that when the vehicle was subsequently moved pursuant to that request, as was explained in the evidence of the plaintiff, it appeared that this manoeuvre caused the plaintiff to suffer further injury.
Miss Devine described the defendant's actions in the aftermath of the collision. Miss Devine gave the impression that the defendant was somewhat agitated in the events after the collision. Miss Devine stated that the defendant had alighted from her vehicle, saying several times, that she thought she had run over a box on the roadway. In that regard, the defendant disputed that someone had banged on her vehicle in order to attract her attention and to get her to stop her vehicle. She also disputed the suggestion that at the scene of the accident she had said that she thought she had run over a box on the roadway.
After the collision, Miss Devine described the condition of the plaintiff as having had the top half of her head removed. This was a reference to the plaintiff's hair and scalp being torn from its attachment and displaced either by the force and friction of the collision or its aftermath. She also described the plaintiff as having a leg trapped under a wheel of the vehicle.
The investigating police did not take a contemporaneous witness statement from Miss Devine in the period that immediately followed the accident.
Miss Devine stated that it was not until about six months after the incident that she had been asked to give a statement about the incident to an investigating police officer. That statement, and its content, was not further explored or identified in the evidence. There was no mention in the tendered police records of a version of events attributed to Miss Devine.
Evidence of the plaintiff
The plaintiff stated that at some time before the accident impact, she had seen the other group of students ahead of her cross the roadway. She stated that, just before the collision, she had been walking alongside Miss Devine, and they had been holding hands as they crossed the road.
The plaintiff stated that before the impact she had crossed 3 lanes of the 4 designated traffic lanes that comprised Melrose Avenue at the intersection. She said she also had partly crossed the fourth of those lanes before she was struck by the defendant's vehicle. She stated that she could not remember seeing the displayed colour of the pedestrian light when she had commenced to cross Melrose Avenue.
The plaintiff said that all she could remember about the pedestrian light was that it was flashing red. Initially, she said she made that observation when she had already set off from the southern kerb in order to cross the road. Later in her evidence she said that when she realised the pedestrian light was flashing red, she hurried across the last of the four lanes of Melrose Avenue at a faster pace. She said that she meant by that evidence that she then walked at a faster pace than normal walking, but she was not running.
The clear impression gained from the plaintiff's evidence was that although she could not recall seeing the green " Walk " signal described by Miss Devine at the commencement of her crossing, they had crossed together, and as she crossed, she became aware of a flashing red " Dont Walk " sign. If the evidence of Miss Devine and the plaintiff is to be accepted, the compelling conclusion is that at the time they commenced to cross, they were lawfully permitted to do so, and were thus lawfully permitted to continue to proceed forward in order to complete their crossing.
The plaintiff said that after she had passed the median strip on the roadway she had looked down Melrose Avenue, which I infer was to her left, and looked past a stationary vehicle at the traffic lights in the lane closest to the median strip. She said she thought there was a bus located behind that stationary vehicle.
The plaintiff said that as she looked in that direction she saw nothing but parked cars, in what I infer from the context to have been the fourth, or the kerbside lane of Melrose Avenue.
The plaintiff stated that she continued to cross Melrose Avenue towards what I infer was a point that was level to the parked cars she said were situated in that fourth lane, when she noticed the approach of the front of another vehicle, which I take to be a reference to the defendant's vehicle. The plaintiff then described how, in the resulting impact, she was then smashed onto the front of the bonnet of that vehicle. She stated that just before she was hit, the pedestrian light was flashing red at the time.
The plaintiff stated that during these events the vehicle that had struck her kept travelling onwards after the impact, and had then proceeded to turn left to travel north into Port Hacking Road. She stated that before the defendant's vehicle had turned, she was already under that vehicle, and was being dragged along as the vehicle continued to move. She stated that in those events, she felt she had been forced to tumble under the vehicle, and felt she was wobbling constantly on the roadway under the vehicle as her legs, pelvis, back, chest jaw and face were being run over by the tyres. She said she was screaming, and could hear what she perceived to be the vehicle screeching and accelerating. She said she was also aware that her friend, Miss Devine, was also screaming, and was hitting the vehicle. The plaintiff stated that the vehicle then stopped after what seemed to her to be a few long seconds. The plaintiff stated that she did not lose consciousness as a result of the collision, and had retained a recall of those events.
In the subsequent evidence of the investigating police officer, the position of the defendant's vehicle after the accident was identified to be some 20m to the north of the pedestrian crossing and in lane 2 of Port Hacking Road.
On 5 December 2007, a month after the accident, the plaintiff gave a statement to an investigating police officer. At the hearing the plaintiff disputed aspects of the content of that signed statement which appeared in the notebook of then Leading Senior Constable Burrows. Significantly, she disputed the contention that just before the impact, she had crossed the roadway in question contrary to the signal or direction of a red light.
Evidence of Ms Chandler
The defendant called Ms Sylvia Chandler, who was the driver of a vehicle that had become stationary in a line of traffic in Port Hacking Road waiting to make a left turn onto the Princes Highway in order to enter the Southgate Shopping Centre. She was uncertain of her direction of travel. It would appear that she had been facing east in Melrose Avenue, which was the same direction of travel as the defendant. Ms Chandler said that at the time, her vehicle was either the second or the third car in a line of stationary traffic stopped at traffic lights. The absence from the evidence of a location map or a plan, despite its described existence in the police records, made it difficult to ascertain the true position of Ms Chandler's vehicle, and the extent of her vantage point to make observations of the events that had occurred at the time of the accident.
Ms Chandler stated that her memory of the events was hazy and not good. She conceded her actual memory of the events was poor at the time she gave her evidence. Neither party tendered the, MFI "8", which was the statement that Ms Chandler had given to the investigating police officers. However, some cross-examination was directed to the content of that statement. An extract of Ms Chandler's evidence is as follows:
"Q. At some point did you make some observations about something that happened on the footpath?
A. I saw a couple of girls, schoolgirls, and I noticed that one ran out, or both of them basically ran out onto the road and one got hit by a car, I think the second one got hit by a car.
Q. Where were the girls when you first saw them?
A. They were on the footpath at the lights, the traffic lights.
Q. Were they both on the footpath?
A. Yes, they were.
Q. When you first saw them were they moving or stationary?
A. They were stationary.
Q. Then you've given some evidence about what you saw. Did they move off together or separately?
A. My memory is not that good - I can recall that one ran first and the other one followed, so.
Q. When the other one followed, how would you describe the speed of her movement?
A. I really can't recall, I'm sorry.
Q. All right. You said that one ran?
A. Yeah, the other one ran as well but I don't know how fast.
Q. I'm not asking you to put an estimate of speed.
A. Okay.
Q. One ran, the other one ran, you don't know how fast. The first girl, did you see where she ended up, as it were?
A. The first girl, I think, ended up on the footpath on the other side and I think the second girl got hit.
Q. Did you see the second girl get hit?
A. I saw the second girl fall but that was it, and a lot of screaming after that.
...
Q. After that what, if anything, did you do?
A. After that there were so many people, they just ran out of nowhere, so I think everyone at the time waited and then we drove off. So I went to park the car and I went back to the police to give my statement.
Q. Did you make a statement to a police officer on that day?
A. Yes, I did.
CROSS-EXAMINATION BY MR LIDDEN
Q. Do you have much of a memory of this incident now, Ms Chandler?
A. No, I don't, it's all very hazy.
Q. Your memory when you spoke to the police would have been much better since it was immediately after the accident, correct?
A. Yes.
Q. During your evidence you have given one answer where you said you believed something happened and two answers where you said you think something happened. I'll remind you of what those last two were. You think the first girl ended up on the footpath, "and I think the second one got hit". The use of those words, "I believe" and "I think", is simply a reflection of the fact that your memory is poor now of the event some years ago. Correct?
A. Yes, that's correct."
The cross-examination of Ms Chandler then continued as follows:
"LIDDEN
Q. So I just want to go through this with you. Your first observation, two girls walking across the road. You've agreed with that already?
A. Yes.
Q. Second observation, car making a left-hand turn from Melrose Avenue onto Port Hacking Road. Correct?
A. Yes.
Q. Third observation, the girl hesitating a bit?
A. Yes.
Q. The next it says, "Before she ran, her friend ran across before her." The next observation is, "After the car has turned, the two girls are running." Correct?
A. Yes, correct.
Evidence of the defendant
In her evidence the defendant stated she was familiar with the area in question. She said she had been a driver of motor vehicles for about 30 years. She stated that in the events leading to the collision she had left the car park of the Southgate Shopping Centre and had turned into Melrose Street and had then travelled in the kerbside lane towards the intersection of Melrose Avenue with Port Hacking Road with the intention of turning left into that road.
The defendant said that as she drove towards that intersection she had remained in the kerbside lane. A question arose as to whether she had to make an earlier detour around a parked vehicle or vehicles in that lane in the course of that journey. She could not recall that there were any such parked vehicles in the kerbside lane. She said that in that journey she recalled seeing a large four-wheel drive vehicle in the lane to her right, waiting to turn right into Port Hacking Road which was the lane adjacent to the median strip of Melrose Avenue.
The defendant said that as she drove towards the intersection she observed the traffic control light that was facing her was green, and that it was also displaying a green arrow signal permitting her to make a left turn. She stated that in the course of that journey, she did not see any pedestrians whatsoever. She stated she had been driving at a slow speed of no more than 10km/h.
The defendant stated that in the lead-up to the collision, she believed she had the right to make a left turn at the corner as she had a green light in her favour. In the course of that journey she said she had travelled no more than a metre into the corner when she felt that something was not right as she perceived something was obstructing her vehicle. She said she then stopped her vehicle, got out to analyse what had happened, and then saw a person caught under her vehicle. She said she then " sort of panicked " and rang the triple-0 number, and following this, emergency services arrived.
The defendant denied that anyone had banged on her vehicle in the course of these events. She denied saying, to anyone that she thought she had run over a box at the time the plaintiff had been struck by her vehicle. The defendant stated that she was shocked at the scene and said that a police officer had later driven her vehicle to Miranda Police Station, where in due course she made a statement.
The defendant was cross-examined at length. She said that after a lapse of 4 years since the events in question she could not remember whether there was traffic parked in the kerbside lane at the time. She agreed that if there were vehicles parked in the kerbside lane in Melrose Avenue as was suggested to her, she would have had to change lanes to the right, and to then change lanes to the left again in order to make her intended left turn into Port Hacking Road. The defendant conceded that it was possible in the events leading to the collision that she may have passed parked vehicles in the kerbside lane of Melrose Avenue, thus requiring her to move from the right lane to the left kerbside lane after passing such parked vehicles. Having conceded that possibility, she reiterated she could not recall this to have been the case on the occasion in question.
When this evidence of the defendant was explored it became apparent that her evidence was based on her view of what she would have done at the time as a matter of routine rather than being based upon an actual recollection of the facts as to what she in fact did on the day in question.
The defendant stated emphatically that she was " in the left hand lane waiting to make a turn up to Port Hacking Road ". She stated that there was a large four-wheel drive in the second lane from the kerb in Melrose Avenue, and also noted that there was a bus that had stopped after the incident. She denied that she had beforehand overtaken the bus, and she was emphatic that the four-wheel drive was the only vehicle that she could see at the intersection.
The defendant was adamant that she did not see any pedestrians in the area at all as she drove into the crossing to make her left turn. She agreed that when driving, it was important to be sure there were no pedestrians on the crossing before making such a left turn. The defendant's explanation for the fact that the front of her vehicle had struck the plaintiff, without her having seen the plaintiff beforehand, was that the pedestrian had crossed the intersection contrary to the lights. She stated that the basis for that statement was something she had been told. The defendant consistently said she had not seen the plaintiff at all before the collision. The defendant stated that the incident in question had happened very quickly.
When the defendant was cross-examined about the content of her statement to the police, in which mention was made of a red circle traffic control light facing her at the time of her turn into Port Hacking Road, contrary to her oral evidence in which she said that the light was green, she explained that it was possible that she may have been confused in what she was saying at the time she made her statement to the police.
However, in her evidence she was adamant that when she turned left, there were no pedestrians crossing from either side of the roadway. She was also adamant that she had a green arrow and green light ahead of her at the time she turned left into Port Hacking Road. In her evidence she accepted the proposition that she may not have picked up the mistaken reference to the red light in her police statement when she had read it on the day it was taken down because she was traumatised at that time.
The defendant agreed with the general proposition that when facing a green left turn arrow and in the course of making a left turn, at times, it was possible that pedestrians would not have completed their crossing. She stated that she had encountered that situation " repeatedly when I'm on the road ". She agreed that when driving, she had to be on the lookout for such situations. It appears to me that in this case, she made no such allowance for such a circumstance because she had not seen the plaintiff on the road at all before the impact.
In her evidence the defendant said that at the time of the collision she was not aware of the plaintiff having been struck by the front bonnet of her vehicle. This raised a question as to whether at that time she was in fact looking straight ahead out of her windscreen, or alternatively, somewhere else. This raised the question of whether she had been keeping a proper lookout. The defendant also stated that she was not aware of someone thumping on her vehicle after the accident had occurred. That evidence gave rise to questions concerning the reliability of evidence of the defendant.
The defendant gave the following evidence:
"Q. How could you not see someone in front of your car that you ran over? How could you not see it?
A. I repeat what I said, I'm sorry but I did not see any person or persons crossing the road from one side to the other or crossing the road from the far aside of Port Hacking Road back.
Q. And the reason for that would be because you weren't paying any attention?
A. I was paying attention sir. I know that intersection extremely well. I've been living at Sylvania for many years and I always, quite frequently do shopping there or have cause to go there, and I did on this occasion.
Q. The police asked you a question during this procedure Mrs Bradley and I want to read it out to you, "Did you notice where the girl who had ended up under your car had come from?" Now what's your answer to that question if I ask you it today, did you notice where she came from?
A. I don't know.
Q. Wouldn't have a clue would you?
A. I honestly do not know to this day."
In addition to the defendant having given a statement to the investigating police officer concerning the events of the collision, she had also given two separate statements to her CTP insurer, the NRMA. These were first, some 5 months after the accident, and secondly, some 21 months after the accident, and which were respectively dated 17 April 2008 and 17 August 2009. In the proceedings those statements were respectively marked: MFI "5" and "6". Counsel for the defendant initially stated his intention was to tender those statements, but later took a different course and the statements were not tendered.
The defendant denied that her vehicle had accelerated after having struck the plaintiff. She said she stopped her vehicle immediately on the crossing in Port Hacking Road, and she denied she had only stopped when she had been forced to do so. This raised a question as to the reliability of the defendant's testimony given that the investigating police officer had observed her vehicle to be stationary some 20m away when later observed, which was roughly consistent with the estimate of 3 to 4 car lengths proffered by Miss Devine in her evidence.
The defendant stated that after the accident she had made her own handwritten notes about the incident. That was an entirely understandable course for her to take. However, she said that she had never referred to those notes again after the accident, and said she had not used those notes as a basis for the statements later obtained by the two insurance investigators who interviewed her in 2008 and 2009 on behalf of the CTP insurer: MFI "5" and MFI "6".
It was clear from the evidence the defendant gave in these proceedings that it was based on those statements she had given to the CTP investigators. This was apparent from her answers to questions put in cross-examination on the issue:
"Q. If this accident is so fixed in your mind that you can't get rid of it, why would you need to read over your statements many times in the last fortnight, you wouldn't need to do it all would you?
A. Well I try not to think about the last four years, but when this Court case was coming to a head I knew I had to refresh my memory somehow and have it factual.
HIS HONOUR
Q. Can you help me with this Mrs Bradley, when you prepared the two statements which are now under discussion, did you refer to the notes you made shortly after the accident for the purpose of making those statements?
A. No. I referred to my memory and the statements as they were.
LIDDEN
Q. So have you ever referred to those notes that you've got at home?
A. No, I thought I was wiser sticking to the statements that had been put.
Q. You were a bit concerned were you that the notes you had at home and your statements would be inconsistent, is that why it was wiser?
A. I don't know the answer to that.
Q. Well the notes you had at home would be a lot better than these statements wouldn't they, because they would have been done pretty shortly after the accident, not years afterwards?
A. I decided to, to stay with the statements that were put as I was requested to record them.
Q. Mrs Bradley, are you deliberately refusing to answer that question?
A. No, I am not.
Q. Well please answer it. I'll ask it again for you in case you've forgotten it. Did you deliberately not read these notes that you have at home because you thought there would be inconsistencies between them and your statements and you thought it was safer to stick to the statements the insurance company took from you, is that what happened?
A. I decided to stick with the statements that were put with the insurance company.
Q. What was the point of taking these notes in the first place if you are never going to refer to them?
A. I didn't know where this would lead at all at the time, point in time.
Q. Why make the notes in the first place?
A. Well if you're involved in a situation, whatever it may be, and something specific happens and you want to remember it down the track, don't you make some notes regarding same?"
A difficulty arose in assessing the reliability of the evidence of the defendant as her decision to " stick with the statements " could not be evaluated by reference to any other material which was known to exist, namely, MFI "5" and MFI "6" and the notes she made on the day of the accident.
The defendant had without doubt been extremely distressed at the accident scene, especially after discovering the plaintiff under the rear of her vehicle. She denied that after the incident and at the scene she had said she thought she had run over a box. She also denied that she had not been taking due care when she was driving. She stated she had been taking extreme care at the time. When it was suggested to the defendant during cross-examination that she had not been paying attention at the time of the incident she gave the following evidence:
"Q. You weren't paying any attention at all as you proceeded up this street--
A. You can look right and left--
Q. --were you?
A. --at that junction as you are aware now. I was probably keeping an eye on the four-wheel drive beside me as well.
Q. Is that your explanation for not seeing a pedestrian on the immediate left kerb of where your car was or crossing in front of you, is that the reason you're advancing?
A. I did not see any person crossing the road between the far side of the road and the kerb on the far side of Melrose Street.
HIS HONOUR
Q. Mrs Bradley, the four-wheel drive that's been mentioned, that was stationary and to your right wasn't it?
A. Yes correct.
Q. So if you were turning left, why would you need to pay attention to a stationary vehicle on your right?
A. Because I always watch traffic to the right and the left when I'm making a turn."
I will return to my analysis of the evidence of the defendant when identifying the conclusions I have reached following my review of the entire evidence on the liability issues and after reaching my conclusions on the reliability of testimony.
Evidence of Mr Miller
The defendant called oral evidence from Mr Douglas Miller, an eyewitness to the events. At an early stage of the hearing, counsel for the defendant had given an indication that Mr Miller may be a reluctant witness.
In his cross-examination, Mr Miller stated that in the 4 years since the accident in question, he had not been interviewed by anybody, nor had he been through the circumstances of the collision with anyone, apart from relating an account of the events to his family immediately after the accident. He stated that the horrendous nature of the events in question had kept his recollection of them fresh in his mind over the years since the accident. He denied that he had been deliberately unco-operative as a witness, saying he just did not want to discuss the events. In that context, Mr Miller acknowledged that he had tried to avoid giving evidence in the proceedings.
It was plain from Mr Miller's evidence that he found the circumstances of the plaintiff's injury quite distressing, including when he had to recount them at the trial. In the circumstances that prevailed at the accident scene, this was readily understandable, especially given that Mr Miller had rendered some initial assistance to the plaintiff whilst she lay on the roadway, having been confronted with the sight of the plaintiff's hair and degloved scalp pulled back on her head. His distress at recounting the events in question was readily apparent, and I considered that this adequately explained his initial reluctance to give evidence. Notwithstanding this, I am satisfied Mr Miller did his best to recall the events to the best of his recollection and perception.
Mr Miller denied that his resort to the use of the qualifying term " I believe " when giving his evidence indicated that he had no true memory of the events, or alternatively, indicated an uncertain recollection on his part.
Mr Miller said that he had driven his bus down Melrose Avenue to the point where he stopped and waited to make a right turn into Port Hacking Road. Mr Miller summarised his recollection as having driven up to the red traffic light, where he saw a green arrow signal, which was by inference, to his left, following which he then saw the accident occur. Mr Miller's vantage point was that he had been seated in the driver's seat of his bus which was located just behind a stationary vehicle in the median strip lane in Melrose Avenue whilst both of these vehicles were stationary and waiting for an opportunity to make a right turn into Port Hacking Road.
In the events leading to the accident, in approaching the rear of the vehicle in front with his bus, Mr Miller had been slowing down the speed of his bus, which he said weighed about 12 tonnes and was about 12m in length. He said he had brought the bus to a halt at about a point half a metre behind the stationary vehicle located in front of the bus. That manoeuvre obviously occupied his primary attention during that time, as he acknowledged. I consider that his evidence concerning the other observations of the events he recounted in the lead-up to the impact must be considered in the light of that fact.
Mr Miller thought that the line of traffic he was in had been facing a red light for east-facing traffic in Melrose Avenue. He said he had been stationary in that position for no more than 10 seconds before the accident involving the plaintiff had occurred. He said he saw a vehicle in the adjacent lane to the left of his bus, facing a green arrow, which permitted the driver of that vehicle to make a left turn.
In his evidence in chief Mr Miller stated that he first saw the plaintiff and Miss Devine when they were crossing Melrose Avenue at about the location of the median strip. I infer from his evidence on this point that they were crossing by walking from his right to his left, but ahead, and in front of the vehicle that was stationary in front of his bus. He said the girls were side-by-side and moving quite quickly, at a fast pace, which he initially described as " probably a jog or a run ." His evidence on this point changed significantly, in that he also variously described the girls as running across the intersection.
In that regard, whilst he said he had seen them run across the intersection at the same time as the defendant had the green arrow signal displayed in her favour when she " took off ", as he described it, he later agreed the girls may have been walking. The difference between those descriptions by Mr Miller is a matter of some considerable significance to the evaluation of the reliability of his evidence.
In relation to the state of the lights, the position of the plaintiff during the crossing, and the movement of the defendant's vehicle, Mr Miller gave the following evidence in chief:
"Q. After you observed them on the median strip, just tell us what happened next?
A. The car in the left hand lane had the green arrow. As she's taken off she's caught one of the girls and she basically came out under the back of the car.
Q. Are you able to tell the Court in relation to the intersection where you observed the point of impact?
A. Just on the pedestrian crossing itself.
Q. Was it on Melrose or Port Hacking?
A. I believe they were still in Melrose.
Q. Did you at some stage make an observation of the pedestrian light that was facing the girl pedestrians?
A. It was red.
Q. By that answer, was it flashing red?
A. No it was a solid red.
Q. At any time during your observation was it other than that?
A. No."
The evidence given by Mr Miller concerning the defendant's vehicle taking off, and the state of the pedestrian lights, must be read in conjunction with some further evidence that he gave on this point, namely:
"Q. What was the car doing before it moved off?
A. I wasn't - didn't see that.
Q. Where was the car when you first saw it?
A. It was going through the green arrow.
Q. What did you see first, the girls crossing the road or the car?
A. I saw the girls then the car.
Q. So a car appeared from somewhere to your left?
A. Yeah, down to the left of the bus."
Mr Miller later agreed that he saw the defendant's vehicle appear from somewhere to the left of his bus and go through the green left turn arrow after he had seen the girls crossing the road. Mr Miller also agreed that if the defendant's vehicle had been stationary before it " took off ", it would have had to have been beside, and by inference, to the left of one of the vehicles in front of him.
Mr Miller claimed that from his elevated vantage point within his bus, on taking a diagonal view to his left, he was able to see a red pedestrian light at the pedestrian crossing and a green left turn arrow signal. He said that this view would have enabled him to see whether the defendant's vehicle was moving or stationary before it turned left into Port Hacking Road. Mr Miller said at the time he made those observations, he was able to see the rear of the defendant's vehicle, but he was unable to say whether or not the brake lights on the defendant's vehicle appeared to come on. He said that the explanation for this was because he " probably wasn't looking then ". This raises questions as to whether Mr Miller was actually looking in that direction when the collision occurred, and whether he had in fact seen the red pedestrian light as he had claimed, or whether his version was an inaccurate reconstruction.
Mr Miller also claimed to have seen the pedestrian light when it was flashing red. He said that he had seen the pedestrian light first flashing red, and then showing solid red. He claimed that he had the opportunity of seeing this because he had just seen a group of girls crossing the road earlier. In this regard, he disputed the proposition that another group of girls were at a distance of as far as 100m or 200m ahead. In this context, he said he had not seen the pedestrian lights displaying a green signal because he had not been at the scene at the time when those lights were green.
Mr Miller said that he had seen a flashing red pedestrian light at the time his bus had been slowing down to a halt near the intersection, even though that pedestrian light was located at about right angles to his position in the traffic. At a later point in his evidence, Mr Miller conceded that he could not see the pedestrian lights when he was slowing down. Presumably, this was because he was paying attention to the narrowing gap between the front of the bus which was slowing down, and the rear of the stationary vehicle in front of him.
Mr Miller also conceded that from where he was seated in his bus, the hooded cowl covering of the pedestrian light would have covered more of the pedestrian light from view, the higher up that one's observation point was situated, such as the position of his elevated seat in the bus. However, he said that the state of the lights could have been seen from an angle.
The following evidence was given by Mr Miller in relation to the events preceding the accident and in connection with the earlier operation of the flashing red pedestrian lights:
"Q. That creates a problem, do you not think, with your earlier evidence that you saw the pedestrian light flashing red as you were slowing down?
A. It may, yes.
Q. Do you think that was some sort of reconstruction, that you've just thought, oh well it must have been flashing - before it must have been flashing red before it turned red therefore I must have seen it. Do you think that was what was going on in your mind?
A. Yes.
Q. In any event, let's return to the girls. You did see a group of girls crossing on that crossing, didn't you?
A. Yes.
Q. How many, roughly?
A. I couldn't say.
Q. But they were right in front of you a metre before you stopped, weren't they, in your direct line of vision?
A. I didn't count them.
Q. Well give me an approximation please, 10, 20?
A. Possibly 20.
Q. As you were slowing down they were still crossing, is that right?
A. No.
Q. They must have been, you saw them when you were a metre from stopping, so they're not going to have crossed all of the distance on your side of the road while you just pulled up in a metre, are they?
A. To me, crossing, they were at the end of the crossing.
HIS HONOUR
Q. What does that mean, if there was a group of them. Does it mean the last one was just completing her crossing?
A. Yes.
LIDDEN
Q. Does that not mean you only saw the last one crossing rather than the group of them?
A. Yes.
Q. Well you told me earlier you saw the group crossing, didn't you?
A. Well they were crossing over the end of it.
Q. When you told me you saw the group crossing, is it right what that really meant was you saw the last one crossing and the other already up on the footpath?
A. Yes.
Q. Do you really have any proper memory of any of this?
A. Yes, I do."
When Mr Miller was asked about the presence of a large four-wheel drive vehicle located in front of his bus at the time of the accident, he stated that to his observation there was no such vehicle in that location. That evidence was in contrast to the evidence given by the defendant, who said there was such a vehicle in that position at the time.
In the face of challenges to his evidence, Mr Miller was adamant that the plaintiff and her companion were running from where he had first seen them in the area of the median strip. He also agreed that the events of the collision had all occurred very quickly.
Mr Miller estimated that at the time of the accident, the defendant's vehicle had been travelling at about 2-3 km/h. Mr Miller said that after the plaintiff had been hit, she had then " come out the back " and underneath the defendant's vehicle, and had then been dragged for several metres.
Mr Miller said he did not see the bonnet of the defendant's vehicle strike the plaintiff. He said he had observed that the defendant's vehicle did not stop, and he had observed it to proceed to drive away. In this context Mr Miller said that he had climbed out of his bus, walked across both the lanes of traffic, and had then stood in front of the defendant's vehicle at a time when the defendant was still trying to drive off. He said he had used his own body as a barrier to the defendant's continued attempts to drive off. He said that at the same time, he was yelling at the defendant to stop because she was not giving any indication of stopping her vehicle. He said that at the time, it had probably been him who had pounded on the defendant's vehicle in order to stop it from moving off. However, later, he agreed in cross-examination that he could not actually recall that fact.
At the conclusion of his cross-examination, Mr Miller denied having been confused in his own mind as to what he had seen of the events in question, and as to when he had seen them. However, and significantly, he conceded that it was possible that the girls whom he had described as having run across the roadway, may have in fact been walking, and that they may have just sped up to some degree, just before the impact with the defendant's vehicle.
Police investigation of the events of the collision
The defendant called Sgt Burrows to give oral evidence. Following the accident, under the direction of his traffic supervisor, as a Leading Senior Constable, he had attended and investigated the accident scene and had later taken statements, first from the defendant, and some weeks later, from the plaintiff. On behalf of the plaintiff, a challenge was made to the adequacy of the methodology of the police investigation of the accident. I shall return to this issue after reviewing the products of that investigation.
Defendant's statement to police
On the day of the collision, the defendant attended Miranda Police Station where she was interviewed by then Leading Senior Constable Burrows, who took a signed statement from her in the following terms:
"Q. I am going to ask you certain questions in relation a motor vehicle accident. You do not have to say or do anything if you do not want to. Do you understand that? Yes.
We will record what you say or do. We can use this recording in court. Do you understand that?
A. Yes.
Q. Were you the driver of motor vehicle, registration number (State) ZIN 404 (Plate) NSW when it was involved in a motor vehicle collision at (location)
Sylvania
(date) 8.11.07 at (time) 12.45pm?
A. Yes.
Q. Who is the registered owner of motor vehicle, registration number ZIN 404?
A. My self.
Q. Was anyone injured in your M/V resulting from the crash?
A. I was the only person, no.
Q. Did you consume any alcohol prior to the crash?
A. I don't drink.
Q. Tell me what happened.
I had been parked in the general parking area of the Southgate shopping centre. I left the parking area via the Formosa St exit. I then went onto Melrose Ave to turn onto Port Hacking Rd.
As I approached the intersection of Melrose Ave and Port Hacking Road I saw that there was a green left turn arrow facing me. I also saw that there was a red circle traffic light facing me. As I neared the intersection I changed from lane 2 into lane 1 (from the right lane into the left lane).
I would have been travelling no more than 10 to 15 km/h as I approached the intersection and as I had a green left turn arrow continued to the intersection at that speed and then began a left turn.
As I attempted the left turn, I don't recall what happened but I recall a whole lot of screaming and yelling. I stopped my car once I was on Port Hacking Rd. I got out of my car and went to the rear of my car. I saw that there was a girl who had what appeared to be a serious injury to her head laying to the rear of my car with her legs under it. I saw that there were people helping her. I then took my mobile phone from my bag and rang 000 and when I spoke to the operator I asked them to send all of their services ASAP please.
I went back to the side of my car and saw that she was being treated, she had a sweater under her head and a cloth on her wound. I attempted to get details from the ambulance officer. They were unable to tell me but did tell me to get off the road. I was then helped to a seat by the ambulance officer.
The final matters to be identified before undertaking the required calculations is to state the finding as to the number of hours of such assistance in respect of each of those periods. On the state of the evidence, I propose to adopt a lifetime average figure, which, whilst not a true average of the respective estimates put forward by Dr Conrad and Dr Parmegiani, is somewhere between those two estimates, and which recognises that something more than Dr Conrad's estimate of 6 hours per week is required because he focussed just on the physical aspects and not the psychological ones that Dr Parmegiani clearly had in mind when he put forward his higher estimate.
The domestic assistance provided to the plaintiff to date and described by the plaintiff and her mother in evidence, and those summarised in the medical and allied reports, have not been quantified in terms of hours per week. If that evidence were the only evidence touching upon this issue, there would be a difficulty making an assessment of this head of damage by reference to the number of hours per week that should be the subject of an allowance. However, in my view, the estimates put forward by Dr Parmegiani and Dr Conrad offer a sufficient insight to enable a finding to be made in order to form the basis for assessment.
When Dr Parmegiani made his recommendation of up to 10 hours per week for domestic assistance, he had in mind a period in the short to medium term, possibly up to 2 years and he stated there was a difficulty in making longer term predictions.
That said, the plaintiff's PTSD condition has not improved, the medical opinions do not suggest an improvement or remission of symptoms in the short to median term, or at all. In fact Dr Synnott's opinion does not suggest significant improvement. In those circumstances, I consider that there is little or no room for optimism concerning a revival of the plaintiff's ability to care for herself and go for significant or frequent journeys outside the house unaccompanied. I consider that a much longer term lifetime view than the next 2 years or so is required on the evidence in this case.
In undertaking that balancing assessment exercise, I have selected as reasonable and fair to both parties, 7 hours per week, which exceeds the threshold identified in s 128(3) of the MAC Act . I now proceed to make the required calculations.
For the next 6 years, at the correct s 128(4) statutory hourly rate of $25.65, the calculation of the value of 7 hours per week of domestic assistance, namely $179.55 per week, projected over 6 years to age 25 years (x 271.4) yields the amount of $48,729. I do not propose to discount that amount on account of any vicissitudes in recognition of the possibility that following the receipt of compensation, the plaintiff may decide to leave home and seek to live independently before 6 years have elapsed.
For the ensuing 63 years, the calculation of the value of 7 hours per week of domestic assistance at $40 per hour, namely $280 per week, projected over 63 years (x 1020) yields the amount of $285,600. I consider that this amount should be discounted on account of the possible vicissitude that the plaintiff might in fact find a partner, which may operate to a degree to lessen the extent of the defendant's burden in respect of this head of damage. I consider that the appropriate discount should be assessed at 15 per cent. Applying that discount, the resultant calculation for this component is reduced to $242,760. That amount needs to be deferred on the 5 per cent tables for 6 years (x 0.746) to yield $181,098.
The two components, when combined, produce a total amount of $229,827, which I consider to be the proper sum to compensate the plaintiff for her need for future domestic assistance.
I therefore assess the plaintiff's damages for future domestic assistance in the amount of $229,827 .
Future treatment
On behalf of the plaintiff, a claim was made for future out-of-pocket expenses for treatment and management of the plaintiff's accident related disabilities, in the submitted sum of $50,000, in the form of a buffer amount.
That sum was submitted by the plaintiff to be an appropriate allowance for the cost of future treatment recommendations and needs, including for the management of the plaintiff's chronic PTSD condition, possible revisionary plastic surgery for the abdominal or groin scar, dental and allied treatment for temporomandibular problems, recommended physiotherapy, and the cost of painkilling medications
In contrast, on behalf of the defendant, it was submitted that any allowance for future out-of-pocket expenses should be in the more limited sum of $10,000.
That amount was submitted by the defendant to represent a buffer to make allowance for the cost of future counselling sessions recommended by Dr Parmegiani, the cost of future painkilling medication, an allowance for the possibility that the plaintiff may review her stance on taking anti-depressant medication, the cost of occasional visits to a general practitioner, and the cost of an exercise programme as was recommended by Dr Marsh.
Following a review of the medical evidence concerning the recommendations made by those practitioners who have assessed the plaintiff's future treatment needs, and having reviewed the plaintiff's circumstances, it is plain from the state of the evidence that the cost of those needs is not capable of precise formulation, which indicates that the allowance of a buffer amount is the correct approach. After considering the relevant elements that should be allowed for future treatment expenses, in my view the appropriate buffer amount should be assessed in the sum of $30,000.
In testing that sum, I have identified the following elements that I consider should reasonably be included within the buffer I have allowed.
First, with regard to the abdominal scarring, Dr Fry has suggested revision of the abdominal scar in the amount of up to $2500. I consider it is reasonable to allow for the possibility that the plaintiff may decide to undertake this treatment in the not too distant future.
Secondly, with regard to painkilling medications for the headaches and scalp discomfort she experiences, the plaintiff takes a considerable amount of Panadol tablets on a weekly basis for this. Whilst the advisability of taking such amounts of this medication in the long term was not canvassed in the medical evidence, it would seem reasonable that the plaintiff be allowed something for the cost of such medication. I consider that an allowance of $10 per week should be adequate for this item. The projection of $10 per week at 5 per cent (x 1032.5) yields an amount of $10,325. I would round this amount up to $12,000 to also allow for the possibility that the plaintiff may be prescribed, and would take, anti-depressant medication at various times in the future, as was submitted by the defendant.
Thirdly, regarding dental work and temporomandibular problems, although the actual treatment cost of addressing these issues has not been dealt with in the evidence, the plaintiff did not have such problems before her accident, and she now has temporomandibular joint pain and problems with her dental occlusion, and related eating problems. Despite the absence of costing for such matters in the evidence, it would seem reasonable to make an allowance for some periodic consultations over and above the cost of dental consultations that would usually be expected to be incurred, together with the cost of nighttime dental occlusal splints. I consider that over the course of the plaintiff's lifetime, a reasonable allowance for these matters would be the rounded amount of $2000.
Fourthly, regarding general practitioner consultations, although the evidence gives no clue as to a reasonable pattern of consultations or the cost of such consultations, it would appear to be reasonable to make some allowance for this item in view of the pervasive seriousness of the plaintiff's psychological illness. The plaintiff has a chronic PTSD condition with depression. It would be unreasonable to assume that there would not be any medical monitoring and management of that condition over her lifetime. In the circumstances I consider an allowance that approximates the cost of 4 general practitioner visits per annum at an approximate cost of $50 each would be fair. This equates to about $3.85 per week. The projection of $3.85 per week at 5 per cent (x 1032.5) yields an amount of $3975. I consider that over the course of the plaintiff's lifetime, a reasonable allowance for this item would be the rounded amount of $4000.
Fifthly, regarding future psychological counselling, I consider that there should be an allowance for 2 components for such services. For the short term, Dr Parmegiani has suggested a further 10-15 sessions with a specialist psychiatrist or a clinical psychologist, at a cost varying between $160 to $350 per session, over the course of the next 12 months rather than open ended treatment. Assuming the lesser cost, with a psychologist, it would be reasonable to allow an amount of $1920 for this. In the longer term, given there is a serious psychological illness which has become chronic, in my view, although Dr Parmegiani has stated more detailed ongoing counselling is contra-indicated, it would be unreasonable if no allowance was made for the possible cost of dealing with occasional flare-ups in the ensuing years in response to possible environmental triggers, requiring either further psychological counselling, or the occasional consultations with a psychiatrist. Taking these matters into account, I consider that over the course of the plaintiff's lifetime, a reasonable allowance for this combination of possible expense should be the rounded amount of $5000.
Sixthly, regarding Dr Conrad's opinion that the plaintiff will need ongoing physiotherapy for her back condition, that opinion was not challenged. I consider it to be a reasonable recommendation in view of the fact that the plaintiff continues to be troubled by back pain as a consequence of her disc problems. Dr Conrad has not recommended any frequency or pattern for his recommendation for physiotherapy. In the absence of specific costing or recommendations, I propose to make a general allowance of $3500 for episodic physiotherapy sessions over the plaintiff's lifetime.
Seventhly, regarding Dr Marsh's suggestion that the plaintiff's low back problems may benefit from a specific exercise programme. In the absence of specific evidence as to the cost of such a programme, I propose to include an allowance of $300 towards the estimated short-term costs that are likely to be incurred in following that suggestion.
The total of the foregoing allowances amounts to the sum of $30,300, which I round off into the buffer sum of $30,000. I therefore award the plaintiff damages for her future treatment expenses in the sum of $30,000.
Past out-of-pocket expenses
The parties have agreed that the plaintiff's past out-of-pocket expenses have been incurred in the amount of $4380. I therefore assess the plaintiff's entitlement to damages for past out-of-pocket expenses in the amount of $4380 .
Summary of damages assessment
My assessment of the Plaintiff's damages is summarised as follows:
(a) Non-economic loss
$325,000
(b) Future loss of earning capacity
$487,611
(c) Future loss of superannuation
$53,637
(d) Future domestic assistance
$229,827
(e) Future out-of-pocket expenses
$30,000
(f) Out-of-pocket expenses
$4,380
Total
$1,130,455
E. DISPOSITION, COSTS & ORDERS
Disposition
The plaintiff is entitled to a verdict and judgment in her favour, in the amount of $1,130,455, without discount on account of alleged contributory negligence.
Costs
The cost consequence of my findings is that unless either party can establish an entitlement to a different order, the defendant should pay the plaintiff's costs of the proceedings on the ordinary basis, unless otherwise ordered, for which there should be liberty to apply.
Orders
I make the following orders:
(a) Verdict and judgment for the plaintiff in the sum of $1,130,455;
(b) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise entitled;
(c) The exhibits may be returned;
(d) Liberty to apply on 7 days notice if further orders are required;
Decision last updated: 09 February 2012
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