Formosa v Callas - [2020] NSWDC 470

District Court

New South Wales

Medium Neutral Citation: Formosa v Callas [2020] NSWDC 470
Hearing dates: 12-14 February 2020
Date of orders: 21 August 2020
Decision date: 21 August 2020
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Verdict and judgment for the plaintiff against the defendant for $175,983.25.

Catchwords:
Motor Vehicle Law – Motor Accidents Compensation – Liability for motor accident in issue – Contest between oral evidence of plaintiff and of defendant – Damages – Plaintiff’s medical condition inadequately investigated – No proper prognosis – Various difficulties in assessing damages.

Legislation Cited:
Motor Accidents Compensation Act 1999

Category: Principal judgment
Parties: Carlo Formosa – Plaintiff
Sofia Callas - Defendant
Representation:
Counsel:
W.M. Fitzsimmons SC and T. Meakes – Plaintiff
M. Nesbeth – Defendant
Solicitors:
Paramount Lawyers – Plaintiff
McCabe Curwood Lawyers - Defendant

File Number(s): 2018/00220781
Publication restriction: Nil.

Judgment

Introduction

This is an action in the tort of negligence for motor accident damages. The action concerns a collision which occurred on Fore St, Canterburry on Monday 29 May 2017, shortly after 7:30am. According to the plaintiff the collision was between a vehicle of which he was the driver and a vehicle being driven by the defendant. According to the defendant the collision was between a vehicle being driven by the plaintiff and a vehicle being driven by the defendant. The version of the collision given by each of the plaintiff and the defendant is markedly different. Liability for this collision is hotly contested. On 7 September 2017 the defendant’s insurer denied liability for the plaintiff’s claim pursuant to the Motor Accidents Compensation Act 1999, section 81(1). The defendant also strenuously contests quantum of the plaintiff’s claim for damages, should he succeed on the question of liability.
The defendant has pleaded a defence of contributory negligence, but, as the case has been opened, presented and argued this is an “all or nothing case” (T7.30).

The plaintiff

The plaintiff, Carlo John Formosa, was born in Italy in December 1981. As his name hints at, his late father was an Italian and his mother is an Australian. He grew up in Rome. He completed his primary, secondary and tertiary education in Italy. His High School Diploma was in the conservation of heritage. He then studied fine arts in Rome and Florence and also traditional animation. After completing his University qualifications, he worked as a graphic designer. In either 2005 or 2006 he obtained work with the national broadcaster, RAI, as an art director.
In 2008 he migrated to Australia as his “Mum is Australian, and [he] always wanted to come to Australia and improve [his] English and seek a career in Australia” (T13.07). On arrival in Australia, he attended the University of Wollongong and completed a Community Language Certificate, in order to teach younger students after school. He then found work at a bilingual school in Leichhardt as a coordinator of out of school care. Although the plaintiff has no formal qualifications in Education, his job was to act as a teacher or tutor of the Italian language. He was working in schools not only in Leichhardt but also in Five Dock and Haberfield. Two of the schools at which he worked were Santa Sabina and Monte Sant’ Angelo.
In 2012 or 2013, he returned to Europe, but was back in Australia by 17 December 2013, but living in Queensland. In that State he had a number of casual jobs, some of which are documented in exhibit H:

Ipazzi Restaurant at Noose Junction as a chef;

Cooroora Mountain Stop Café from 12 May 2014 to 5 September 2014 as a cook and barista;

Boreen Point Store, “the only store in town”, a café and convenience store, from 1 April 2015 to August 2015.

The plaintiff then returned to live in New South Wales.

In 2016, the plaintiff was working at Winmalee High School as a teacher’s aide, but he may have commenced this work during the last quarter of 2015. Initially this work was for 2 days per week, supporting students with either a physical disability or a learning disability. On 8 February 2016, he also commenced working with Newington College at Stanmore as a tutor in Italian. He assisted students preparing for the Higher School Certificate and the International Baccalaureate. He tutored individual students in Italian conversation and created resources for the school’s language department. He did this work for 2 or 3 days per week. He enjoyed both jobs, but found that at Newington College more challenging, and it enabled him to teach Italian grammar which he loved to do. The plaintiff was employed in these 2 jobs at the time of the collision. He also worked at times as a freelance graphic designer (exhibit L).
The plaintiff had married, in Italy, an Australian lady, Ms Madeline Webb. This is likely to have occurred during the plaintiff’s trip to Europe in 2012/2013. The plaintiff and his wife had been living in Marrickville, probably since returning to New South Wales in 2014. They moved to 41 Fore Street, Canterbury 3 or 4 months prior to the collision (T120.30).
The plaintiff learned to drive in Italy. He obtained his driver’s licence in that country in 2003 (T87). He had always driven sedan-sized vehicles, as opposed to motor scooters, motorcycles and trucks. He had been driving for 14 years prior to this collision. He had been driving in Australian road conditions since 2008, i.e. for about 9 years. He was not cross-examined about any adverse traffic record, other than about a minor incident on Botany Road, Rosebery in 2019. He was making a right-hand turn into a service station. A utility truck being driven in the opposite direction was stationary and invited the plaintiff to turn in front of it. The plaintiff did so, but a 3 wheeler motorcycle on the kerbside lane collided with the front of his car. This was a “very small thing”. There is no suggestion that anyone was injured. The plaintiff has not been involved in any other accident.

The plaintiff’s vehicle

At the time of the collision now in question, the plaintiff was the driver of a Daihatsu Feroza 16 valve EFI registered number CJ232H. The vehicle had two colours: one was silver but the other colour may be blue or green. Exhibit 4 describes their colour as “green” and photographs B, 1 and 5 are consistent with that colour but photographs exhibits E and F show the colour blue. This vehicle was owned by the plaintiff’s then wife, Ms Webb. This vehicle can be shortly described as a small, 2 door SUV.

The defendant

The defendant, Sofia Callas, was born in March 2000 (T176.26). At the time of the collision she was 17 years old, attending Rosebank College which is on Parramatta Road, Five Dock. She was a Year 11 student (T204.48). She was living at the time with her parents and older brother on Wardell Road, Earlwood.
The defendant had obtained a provisional driver’s license (P1)(“red P’s”) on 21 March 2017. She had been entitled to drive on her own, without an instructor, for 9 weeks prior to the collision (T186.21). To obtain her driver’s license, she took the test in her brother’s Hyundai i30. When learning to drive she had driven her father’s work vehicle, a Toyota HiLux, and her mother’s Mercedes-Benz.

The defendant’s vehicle

Since she had gained her driver’s licence, the defendant had been using her mother’s vehicle each week day to drive herself to school (T185.32). This vehicle was a Mercedes-Benz S350, black in colour. She agreed this was “a very big Mercedes” (T183.39) and that it was a “much more powerful car, in terms of being able to accelerate” than the other two vehicles she had driven (T184.12).

The collision site

Fore St, Canterbury is part of an “alternate route” from New Canterbury Road, Lewisham to Canterbury Road, Canterbury, travelling south of the alignment of New Canterbury Road, and Canterbury Road, crossing the Cooks River at the border of Dulwich Hill, Marrickville and Earlwood. This alternate route runs along Wardell Rd, Permanent Ave, Karool Ave, Burlington Ave and Fore Street. If travelling westward along this alternate route, Fore St starts at a roundabout at its junction with Burlington Ave, where, but for the roundabout the alternate route would make a cross-road with Woolcott Street. After entering Fore St at this roundabout, there is a gentle curve to the right and then Fore Street runs straight to a T-intersection with Canterbury Road. The direction of the straight stretch of Fore St (most of its length) is from south-east to north-west, which, for ease, I shall call from south to north. There is a gentile uphill gradient along the straight length of Fore St. That gradient is discernible in photographs, exhibits B,1,2 and 5.
Fore St is crossed by High St, Canterbury. The relevant section of Fore St is between the roundabout described above and High Street. In that section, there is no intervening intersection. Houses on the eastern side of this section of Fore St have even numbers, those on the western side odd numbers. The plaintiff’s then residence was on the western side, No 41. The house on the south-western corner of Fore St and High St is No 33A. Going south, the houses are numbered 33A, 33B, 35, 37, 39A, 39B, 41, 43, 45 etc. The centre of the road is marked. The street is wide enough to permit cars to be parked on its eastern and western sides, with two central unmarked lanes, allowing traffic to pass easily in each direction (see exhibits 1, 2 and 5). As a vehicle travelling north approaches the intersection with High St, the median line becomes unbroken and there are traffic-calming obstacles that can be seen as exhibits A2 (a Google aerial photograph) and exhibit 2 (a view looking south, down Fore St, from its intersection with High Street). On the opposite side of the intersection, there is a marked pedestrian crossing on Fore St and accompanying traffic-calming devices, which can be seen on exhibit A2. At its T-intersection with Canterbury Road, there are traffic control lights.

Prior to the collision

The plaintiff’s then residence is a semi-detached house. It had no off-street parking. His practice was to park his vehicle on Fore St and, in particular, on its western side. On the morning of Monday 29 May 2017, it was parked on the western side of Fore Street, in front of No 45. On exhibit B, the plaintiff’s residence has been marked. No 41 was attached to No 43 which also has no off-street parking. No 45 is a wider property and part of its front lawn has been excavated to make an off-street parking space which is covered by a car port. This car port adjoins the boundary with No 43. There is a concrete driveway which leads to No 45’s car port. Just south of the driveway is a tree growing on the nature strip. The plaintiff had parked his car on the southside of the driveway to No 45’s carport, underneath the tree (T19.22). The plaintiff was intending to drive to Winmalee High School (T18.43). The do that he had to pull onto the northbound lane up Fore Street, and head north.
The defendant was, on the morning of 29 May 2017, driving herself to school. She left home, she thought, at “approximately 7:40am. She travelled along Wardell Rd, Permanent Ave, turned left onto Karool Ave, then turned right onto Burlington Ave and, at the roundabout, travelled into Fore St, intending to drive to Canterbury Road (T176.44, T178.35).

The plaintiff’s case on liability

The plaintiff said that the collision occurred “[j]ust after 7:30, or 7:40. Around that time” (T18.46). Prior to the collision he left his residence and entered his vehicle and put on his seat belt. He then “looked in the mirror”. He looked south down Fore Street to look for north-bound traffic. He estimates that the curve of the southern end of the street, which he referred to as “the bend” was 150m or 200m away. From where he was parked, the northern end of the curve, or bend, was 180m south, according to the scale on exhibit A1, a large Google aerial photograph. His evidence in chief continued:

“I usually wanted to see which cars came from the bend before I access the road. I saw two cars. And as soon as the two cars came in front of me, I pulled out. And… then the two cars actually stopped because, maybe, I’m not sure. There’s a zebra crossing just, may be 80 meters from there.

……………………….

Q. You said you saw these two cars coming.

A. Yep. Yep.

Q. And you let those two cars pass.

A. Yes…

Q. Did you do anything else in terms of look for any other cars…

A. Well, yes.

Q. …when you pulled out?

A. I always…make sure there’s no other cars coming from the bend.

Q. Could you see any other cars?

A. There was no other car.

……………………….

I started to pull out and then I stopped…behind the two cars and I was there for a number of seconds. Could’ve been five to ten seconds. I’m not sure. I do not recall exactly.

................................

Q. When you stopped behind these two cars…do you recall your car, was it straight, was it [at] an angle? Can you recall?

A. A slight angle. But I was directly on the road. I was definitely not in…the parking lane.

Q. You said that you’ve waited there for a period of time.

A. Yes.

Q. And then what happened?

A. And then the cars started moving and – on the outside and I got hit by a car on…my right side”

The plaintiff’s car was struck on the driver’s door. Photographs, exhibits E and F, show the damage to the door and the area below the door. There is no dispute about that. Exhibit E has marked on it circles showing other areas of pre-existing damage to paintwork, and the right hand side of the rear bumper bar. The plaintiff’s vehicle was struck by the “front left and slightly on the side” of the defendant’s vehicle (T22.15). That is confirmed by 3 photographs which are exhibit G, showing damage on the side of the left front headlight and below it, back to the left front wheel arch and on the top edge of that wheel arch.
The plaintiff prepared a sketch plan which was tendered and admitted without objection as exhibit D. It shows parked cars on both the eastern and western sides of Fore Street. The plaintiff’s vehicle has been coloured yellow. It is wholly within the north-bound traffic lane, behind two cars, and is a right angle to straight lines indicating the centre line and the parking lanes of the road. It shows a black car colliding with a driver’s door of the plaintiff’s car, consistently with the physical damage occasioned to each vehicle. The black car has come from the plaintiff’s vehicle’s right and is partially on the incorrect side of the carriageway. A black line on the “side park” lane indicated where the plaintiff’s vehicle has been parked, prior to his pulling out on to the traffic lane. The sketch plan shows a vehicle in the south bound traffic lane, the front of which is shown to be slightly north of the front of the plaintiff’s vehicle. The plaintiff identified this as the “orange car”.
In chief the plaintiff said there was an orange car coming down the other side of Fore St (T21.21). After the collision the plaintiff noticed that this vehicle had stopped (T21.31). At T23.20 the plaintiff referred to this orange car as causing an obstruction. When asked to explain what he meant by using the word “obstructed” the plaintiff said this:

“Because the car involved in the accident was not on… my lane, was like, on the other lane.”

Immediately after the accident, vehicles were moved. The plaintiff’s evidence is this

Q. Immediately after the accident, what happened to the cars, as soon as it happened?

A. I - well, we were in - in the middle of the road at that point, and

Q. Did you do something?

A. Well, I - I looked behind, because it came from nowhere, and I - I notice you know, I noticed that the - the car and the - the driver. I tried to pull down the window, and I told the driver to not move the car.

Q. Why did you say that?

A. Because - because she - because her car was on - on the other side of the road. And I - and I didn't understand how that happened. So I - so in - in that moment, I thought that it was - there was something wrong with what happened, and - and I wanted to take a picture of the accident straightaway. Like, that was the first thing I thought. And she was okay, but yeah.

Q. Were you able to get the picture?

A. No.

Q. Why?

A. Cause the driver drove the - parked the car straightaway, essentially.

Both the plaintiff and the defendant then parked his and her vehicle on the western side of Fore Street. There is no further reference in the evidence as to what happened to the orange vehicle. I presume that its driver drove south by either waiting for the defendant to move her vehicle or by driving around the defendant’s vehicle. After the plaintiff pulled over, he realised that the defendant was a school girl, because she was wearing a school uniform (T24.23 to T24.33). This evidence was given:

Q. So initially, did you say anything - or first of all, did she get out of the car/

A. She did not, and she had still the - the - her window up. And ah, the first thing I said was, Why didn't you see me. Like, like that was the first thing. And - but I saw she was distressed, as I was, so I - I went back inside my house, I got a glass of water, and I gave it to her. And that's when you know, that's when I spoke to her for the first time.

Q. And when you said to her, Why didn't you see me, did she say anything in response to that?

A. No.

Q. Did you have any further discussion with her at all about the accident?

A. No.

Q. What had happened?

A. No. She would not reply to me. I - I believe she was on the phone with the mother.

Q. And did her mother eventually turn up?

A. Yes, with her brother.

Q. And was the position really that from then on, all the communication was through her

A. Only the mother.

Q. And at some stage, did the driver of the car, the young girl, did she then leave the scene?

A. She left. She left with the brother soon after.

Q. And did the mother, from what you recall, stayed around for a little longer?

A. Yes.

The defendant’s case on liability

The defendant first described the collision thus:

“I was on my way to school on Fore Street and the vehicle had appeared from the left side of the road and I was just going straight, the traffic was pretty moderate so it was flowing and there wasn’t really many cars around and the car’s pulled and I’ve hit into the car.”

When asked as to the speed at which she was driving along Fore Street, the defendant said “[p]robably 40 kilometres” per hour. The speed limit on Fore Street is 50 kilometres per hour (T61.44, an answer by the plaintiff to a leading question put by Counsel for the defendant). The defendant’s evidence continued:

Q. So just as you were driving along Fore Street, can you recall if there were any cars before - in front or behind you?

A. To be honest, like, my memory's a bit blurred from back then but I can remember there was a few cars on the street. Not exactly where or how far they were but I do remember their being cars on the road.

Q. So you're driving along Fore Street and then did you see anything, what happened?

A. So when I went onto Fore Street I was just driving normally, I had slowed down because about 100 metres up there is a crossing and there's always pedestrians crossing that road so I was slowing down and then I was going about 40 and then the green car had just come out from the left side and I hit into the car.

Q. So when was the first time the green car came to your attention?

A. Maybe three metres before approaching that spot where we had the crash.

Q. And the green car, just so I'm clear on this. In terms of your position on the road I take it you were in the northbound lane travelling forward, at any point did you come out of that position. Did you ever go anywhere else?

A. No.

Q. And I think you mentioned three metres, that was the first time

A. Roughly, yeah.

Q. So where was your car relative to the green car. In other words were you behind it, beside it, where were you when you first saw it do anything?

A. I was just like back behind it next to it.

Q. You said it's come out.

A. And it hit into me.

Q. And then what, if anything, happened?

A. So after that what had happened?

Q. Yes.

A. So after that Carlos had said, he's just started screaming some words at me. I pulled down my window and I pulled aside so did Carlos. He came out of his car and was screaming at me through the window and I pulled my window down and I had explained that I wasn't going to come out of the car until everyone was calm.

The defendant was then asked a number of clarifying questions. After the collision, her vehicle was still on the north-bound lane of Fore Street, “going straight”. She denied going onto the incorrect side of the road, staying wholly on the left hand side of the centre line. She was upset. She had just been in a collision involving her mother’s car. She was crying. She was being yelled at by the plaintiff. She did not want to get out of her vehicle. She called her mother asking her to come to the accident site. This evidence was then given:

Q. Were any words exchanged between you and Carlo at any point?

A. Yeah. So Carlos was just saying to me, I was a stupid P plater, I don't know how to drive, I was probably on my phone. And then I had just said, "I'm not going to come out until everyone stops screaming. Like, I don't appreciate being yelled at." After that, I had come out of the car, after I'd called my mum. And he made a phone call also. I had gotten out of the car, and then Carlos had come up to me, apologising, saying, "Sorry, it was my fault. Would you like to come inside for a glass of water?" Because his house, I'm pretty sure, is right next to us. I said, "No, I'm okay. I'm just going to wait for my mum here." I said, "While we wait, let's exchange some details. You can take photos of my car, I'll take photos of yours." We had done that. And then, about ten minutes later, my mum had come to the scene. And I left shortly after with my brother, he took me to school.

The question for the Court

The two versions are irreconcilable. The question for the court is whom should I believe, the plaintiff or the defendant? The answer is in the cross-examination of each party and in consideration of the evidence called by the defendant from her mother, Mrs Nikki Callas.

Cross-examination of the plaintiff

The plaintiff’s evidence in chief occupied about 2 hours and 10 minutes of Court time. This cross-examination lasted for 4 hours and 40 minutes. The cross-examination was lengthy, repetitive and tedious. It challenged the plaintiff’s evidence on both liability and damages.
The plaintiff was cross-examined about an Accident Notification Form, signed by him and dated 31 May 2017, i.e. 2 days after the collision (exhibit 3). It contains on page 4 a “Diagram of the accident”. The plaintiff said he did not draw the diagram nor is the handwriting his, but he did not resile from the fact that, by signing the document, he adopted it. He could not recall who, on his behalf, completed the document. The diagram shows 3 vehicles in the northbound lane and a vehicle in the south-bound lane. The three vehicles in the northbound are identified (going from north to south) as:

“stopped vehicle

Vehicle at fault.”

The plaintiff’s vehicle (“me”) is at a slight angle to the side of the road, consistent with exhibit D. The defendant’s vehicle (“vehicle at fault”) appears to be in a normal northbound direction, but a dotted line from the front of the defendant’s vehicle heads out towards the middle of the road and then curves back to the left, colliding with the right-hand side of “me”. Next to the diagram, under the rubric “Brief description of the accident” has been written this

“Driver at fault attempted to overtake me with oncoming traffic”

The diagram also shows a line of parked cars on the western side of Fore Street.

This diagram, it is alleged and submitted, is inconsistent with exhibit D and this adversely affects the plaintiff’s credit. With the utmost respect, this is so tendentious that it is a risible proposition. The plaintiff admitted that he had no sight of the defendant’s vehicle prior to the collision (“I didn’t see her coming”: T71.24) and therefore he was doing his best to try to explain how the collision occurred. After giving the short piece of evidence I have just quoted, the cross-examination continued thus:

Q. And you can't say with any certainty what side of the road she was on when she collided with your vehicle either, can you?

A. I can tell that when I saw the vehicle, the vehicle was on the other side of the road. Because the car to my right, coming from the opposite direction, stopped because it was obstruct by

Q. Well, you're talking about a car on the other side of the road, and you're assuming they've stopped because of the defendant's vehicle, aren't you? You don't know why they stopped.

A. Her car was on the lane, on the other lane - on the opposite lane.

Q. But in terms of the position of the defendant's vehicle, as you're sitting here now, you can't say which side of the road she was on, can you?

A. Well, I - I - I - I'm hundred per cent, I was on the - on - on the - on the lane going north. So in the moment I turned around, I do remember seeing this car on the other side of the road, the opposite side of the road.

A little later the plaintiff admitted that whoever drew the diagram did not place the defendant’s vehicle on the incorrect side of the median line, but there is no suggestion that 2 vehicles could both occupy the northbound traffic lane, side by side. Physics demand that the defendant’s vehicle crossed at least partially onto the wrong side of the road, if the plaintiff’s case is to be accepted.

The plaintiff was also cross-examined about a Motor Accident Personal Injury Claim Form, which he signed and dated 15 June 2017 (exhibit 4). That also has a diagram on page 6. The plaintiff said that he did not draw the diagram or complete the Form, but did not resile from the fact that he had adopted the document by signing it. This diagram is similar to that in exhibit 3, the description of the vehicles being the same. There are two substantial differences: on the southbound lane 2 vehicles are drawn the northern-most being in the same position as on the diagram in exhibit 3 and in exhibit D, the southern-most vehicle being further south than the collision site; the second difference is that the line from the defendant’s vehicle to the plaintiff’s vehicle runs straight, such that it indicates that the front of the defendant’s vehicle collided with the rear, right-hand corner of the plaintiff’s vehicle. However, it is common ground that that is not what happened, as the physical damage caused to each vehicle attests. The narrative contained on page 7 of exhibit 4 is this:

“Driver at fault attempted to overtake me with oncoming traffic.”

i.e. the same narrative contained in exhibit 3.

I find it difficult to understand how anyone could be misled by exhibit 4, if that person had exhibit 3 and was aware of the property damage. Furthermore, the diagram in exhibit 4 is inconsistent with the narrative in the same document, but is the same narrative as in exhibit 3. The inference I draw is that the plaintiff did not properly peruse exhibit 4 before signing it, did not properly inspect the diagram drawn on p6. This does not cause me to doubt the plaintiff’s credit.
The plaintiff was also challenged about the “orange car”:

Q. You say that you saw the two cars as they approached as you looked in mirror?

A. Yes, they came out of the bend.

Q. Can you tell us anything about those cars?

A. They were - I look in the mirror. I do - I saw the two cars coming from the bend.

Q. Can you say what colour either of them was?

A. Well, a dark - a dark colour.

Q. Both of them were dark colours?

A. I could not tell, like--

Q. Because it was a long time ago, correct?

A. Apart from being a long time ago, even if you ask me the next day I probably wouldn't be able to say.

Q. And yet, you remember with some certainty that this car coming in the opposite direction was orange?

A. Yes, I do remember that because it stopped, because I remember thinking that her car was in a strange position because it was on the other - the opposite lane.

Q. The opposite lane, but that's something which you haven't told that person on the accident notification form.

A. On this one?

Q. Yes.

A. I say, I think that overtake me because when you overtake on a road that small most likely you're on the other side.

The evidence then went in a tangential fashion. Mr Nesbeth interpreted the words “overtake me with oncoming traffic” to mean with traffic heading in the northbound direction. The plaintiff apologised for his English not being perfect, but I must observe that “oncoming traffic” is in my view apt to describe traffic headed towards me, rather than traffic travelling in the same direction. The plaintiff drew in exhibits 3, 4 and D a vehicle in the southbound lane, just north of his position on the carriageway. True it is that he had not described this vehicle by its colour, orange, previously but until the hearing no one had asked him to do so. I am not persuaded that the orange car is a recent invention, as suggested by the defendant.
Another challenge to the plaintiff on liability was that the traffic calming device before the intersection of Fore Street with High Street, would have made it impossible for the defendant to have overtaken the plaintiff’s vehicle. This proposition was put at T78.50 and T79.13. At T80.04 I pointed this out:

“Mr Nesbeth, I’ve applied the ruler to the scale on exhibit A2, and the distance from the front of the plaintiff’s residence to the traffic calming device immediately south of High Street is 40 metres.”

Counsel then turned to another topic.

That topic was a history recorded by Dr Nigel Menogue, a medial practitioner the plaintiff saw for the Medical Assessment Service on 9 July 2019. That history was read onto the transcript:

"On 29 May 2017, at approximately 7.20am, he entered his car parked on the side of the road. He had partly exited the parked spot when he was hit by a car coming from behind, striking the driver's side of his vehicle. He was therefore not hit from the rear of the car, this was more of a side swiping type accident. The car was old and airbags were not fitted. After exchanging details, he returned home and saw a GP, Dr Tringali, later that day."

The relevant cross-examination is this:

Q. Did you tell the doctor that you saw in July last year that you had partly exited the parking space when you were hit?

A. I - I - unfortunately, I don't remember what I said to the doctor. But did I exit the parking? Yes.

Q. Was it the case that you had not completely left the parking space when you were hit?

A. No.

Q. Do you have an independent recollection?

A. My story's always been the same, like, since the beginning. I left the car.

Q. I suggest to you it hasn't always been the same. I've taken through an accident notification form.

A. Mm hmm.

Q. I've taken you through the..(not transcribable)..form.

A. Mm hmm.

Q. And you've said what you've said today. And you've prepared exhibit D. They're not all exactly the same, are they?

FITZSIMMONS: I object. That's very much a rolled up question, "not exactly the same." In what way? They're a different colour? They might describe - with respect, your Honour

HIS HONOUR: Yes. Rejected as to form.

NESBETH: Your Honour, I've taken this witness through the differences.

HIS HONOUR: They mightn't be drawn exactly the same, but each shows his vehicle as being wholly in a lane next to the lane which cars are parked. Not partially in the parking lane.

WITNESS: Yes.

NESBETH

Q. I put it to you, Mr Formosa, that it was the case that you were only partly out of the parking lane when you were hit. Do you agree with that or not?

A. No.

Q. I put it to you that you told Assessor Nigel Menogue that that was the case. Do you agree with that or not?

A. No.

The plaintiff was also cross-examined about his interaction with the defendant and her mother after the collision. The plaintiff said that the defendant pulled over onto the side of the Fore Street, before he did (T83.49). This evidence was given:

Q. After the accident, so you've pulled over to the side of the road. Both of you have.

A. Yes.

Q. And you've gone over to the defendant's vehicle.

A. Yes.

Q. What'd you say then?

A. I asked her why she didn't see - well, how come she didn't see me. Like, I was in front of her. So that was the first thing I ask her, "Why didn't you see me?"

Q. And what'd she say to you?

A. She didn't reply because she had the window closed.

Q. Were you acting aggressively at the time?

A. No.

Q. Were you shouting at her?

A. No.

Q. And you mentioned that her mother came to the scene with her brother.

A. Yes.

Q. How long afterwards would you say that happened?

A. Time for me to go inside, get a glass of water, come out, give it to her and - approximately that time. Again, I don't know, it could be five to ten minutes.

Q. I suggest to you that you didn't go into the house and get water and bring it out. Do you agree..(not transcribable)..

A. No.

Q. So you said five to ten minutes. Did you say anything to her mother?

A. I spoke to her.

Q. What was said?

A. There - we didn't - like, I just exchanged my driver licence. She asked me for - you know, she asked me what happened and I told her.

Q. If you just take a step back. Are you saying that you exchanged driver's licence details with

A. Yeah.

Q. the defendant's mother and not the defendant?

A. No. Because she wouldn't give it to me, the daughter at first.

Q. Sorry?

A. At first.

Q. At first. So she did give it to you.

A. She give it to - gave it to me after I went in. I got her a glass of water and then she gave me the driving licence.

HIS HONOUR

Q. When she gave you her details, was her mother there by then?

A. In that moment, no.

The plaintiff then agreed that he may have told the defendant’s mother that he did not see the defendant when he drove away from the kerb. That is consistent with his case. The cross-examination then continued:

Q. Did you say to the defendant's mother the accident was your fault?

A. No.

Q. Did you apologise to the defendant's mother?

A. I might've, that a young girl got in an accident. Maybe, yes.

Q. And you went to the defendant's house the day after the accident, didn't you?

A. Yes.

Q. Again, you spoke with the defendant’s mother.

A. Yes.

Q. Did you tell the defendants mother that your car was not insured?

A. I beg your pardon.

Q. Did you tell the defendants mother that your car was not insured?

A. I believe – I believe I already told her the day before.

Q. When you were at the house, did you tell her that your car was not insured?

A. I don’t remember telling her again. Maybe I would of, but don’t remember. I went there to take pictures of the car which I was not able to do the day of the accident.

Q. Are you sure about that? Did you not take photographs of the car on the day of the accident?

A. Yeah.

Q. I suggest to you that you did.

A. Okay.

Q. Would you agree with that or not?

A. No.

Q. The day after the accident, did you offer the defendants mother a sum of money?

A. I remember saying that – that probably the best thing and to settle, I said, “You can pay for your damage, we’ll pay for our damage”.

Q. Did you offer the defendants mother a sum of money?

A. I did not offer, no.

Q. I suggest to you that you did. Would you agree with that or not?

A. No.

Q. I suggest that you said that your vehicle was not insured, you did not want to go through insurance and so you offered her a sum of money. Would you agree with that or not?

A. No.

The following propositions were formally put to the plaintiff:

Q. Mr Formosa, I’m going to put a series of propositions to you. You can simply tell me if you agree or not.

A. Okay.

Q. I put it to you that on that morning of the accident, you were in your car parked at the side of the road and you pulled out, and you had not left the parked position into the path of the defendant when she hit your vehicle. Do you agree with that or not?

A. No.

Q. I put it to you that you did not indicate before you moved from the parked position. Do you agree with that or not?

A. No.

Q. I put it to you that there were not two stationary vehicles in the northbound lane of travel that you say you stopped behind. I put it to you that that was the case. Do you agree with that or not?

A. No.

Q. I also put it to you that the traffic on Fore Street at the time was free flowing. In other words, there was no backed up traffic as you describe. Do you agree with that or not?

A. No.

Q. You’re hesitating. Why are you hesitating?

A. Yeah, I did hesitate because again, I can’t see what’s happening that far on that side, like once I came out and had two cars in front, I wasn’t paying attention there was traffic going on, like I – all I can say is that when I came – before I pulled out, I saw the two cars on the bend and that was it. So, if there was more traffic in front, I could not tell.

Q. I put it to you that the defendant, at no point prior to the collision, left the northbound lane of travel. Would you agree with that or not?

A. No.

Cross-examination of the defendant

With the usual exuberance of youth, the defendant said that, after driving for nine weeks, without an instructor, she was a cautious but confident driver (T187.17). She agreed that the collision occurred on a Monday morning during peak hour. She accepted that street was a “fairly major thoroughfare in terms of a route taken by traffic”. She also agreed that Fore Street lead to Canterbury Road and that it had “a lot of traffic” as it approached Canterbury Road. She knew of the pedestrian crossing on the northern side of the High Street cross-road. She said that there was a stop sign facing traffic in High Street. A little later this evidence was given:

Q. The fact is, firstly, we have pedestrians, you’ve accepted, are regularly crossing that road. Correct?

A. Yes.

Q. There is a regular flow of traffic up Fore Street, correct? At that time of the morning.

A. Yes.

Q. And I suggest to you, putting those two things together, you have regular pedestrians crossing that road. This is a fairly main road with a flow of traffic up to Canterbury Road. I’d suggest to you that traffic does bank back from the crossing, doesn’t it?

A. Sometimes.

Q. Yes. And, if it’s going to happen at any time, it happens at that time of the morning, because of the amount of traffic on the road. Correct?

A. Correct.

After discussing the topic of cars being parked on the sides of Fore Street, this evidence was given:

Q. Well, one of the things you obviously a taught as a driver of a car, is you’ve got to be aware of the possibility of cars coming out from their left. From parked positions. Do you accept that?

A. Yes.

Q. So, one of the things if you were driving carefully, you’d be taking a note of the cars parked on your left, wouldn’t you?

A. Yes.

Q. Yet, you can’t remember other than thinking there might have been three or four on your left, is that right?

A. Yes. As I said, I don’t remember exactly that day how many cars there were - there were parked, but I do remember that there were cars there.

Q. And, in the immediate vicinity where the accident happened, there were cars parked, weren’t there? On the left as you were driving up Fore Street?

A. Yes.

Q. And, there were cars parked, do you recall, directly in front of you but on the left where the accident happened?

A. Possibly.

Q. There is a regular flow of traffic also coming in the other direction, isn’t there? At that time of the morning?

A. Yes.

Q. And, do you recall seeing cars coming the other way, leading up to the time of the accident?

A. I do recall there being cars on the other side of the road, yes.

The cross-examination then returned to the topic of cars being banked up, giving way to pedestrian traffic on the pedestrian crossing. This evidence was then given:

Q. See, what I want to suggest to you, at the time this accident - where the accident occurred, there were cars banked back to about where the accident occurred, weren’t there?

A. No.

Q. At the time the accident happened, do you remember seeing cars ahead of you on Fore Street?

A. Well, as I said, I had just come off a roundabout, and there’s no other way to come onto the street after that, and there was one car behind me. So, I don’t recall there being many cars in front of me. There could have been a car in front of me. But not in my eye sight, no.

Q. It’s a straight section of road leading up to where the accident happened, isn’t it?

A. Yes.

Q. And, what’s the distance of that straight section of road leading up to where the accident happened?

A. Possibly 30 metres.

I then interrupted the cross-examination. As I pointed out in [17] there was a difference of 180m from where the plaintiff had parked his car to the “bend” or curve at the southern end of the straight stretch of Fore Street. From that parking space to the middle of the roundabout, using the scale in exhibit A1 is 240m. I showed at this point of the cross-examination exhibit A1 to the defendant and she said the distance was “possibly 50 metres”. I asked her whether she accepted that it was “about 250 metres” and she agreed that it could be.
Mr Fitzsimmons SC then continued:

Q. How long did it take you to drive that stretch from the roundabout up to where the accident happened?

A. I’m not too sure, a minute. I’m not too sure.

Q. You said you were doing 40 kilometres an hour. How do you remember that?

A. Because I always drive under the limit.

Q. You actually remember looking at your speedometer on this day?

A. Yes.

Q. You do?

A. Yes.

Q. And what point do you remember looking at your speedo on this day?

A. I’m constantly checking my speed.

Q. Well, can you answer my question? At what point, say, before the accident did you last look at your speedo?

A. Possibly as the houses started.

Q. As the houses started, so beyond the roundabout?

A. Yes.

Q. Your impression is that it’s a distance of about 50 metres, do you understand? But, in fact, as his Honour suggested to you, it’s closer to 250 metres. Do you understand?

A. Yes.

Q. What I’m suggesting to you is in order to obtain - to get such a mistake, I’d suggest, in terms of that distance, I’d suggest that you were travelling a lot faster along that road, weren’t you?

A. No.

A little later this evidence was given.

Q. Yes. As you approached, that closer to where the accident actually happened.

A. Yes.

Q. At that point you remember seeing cars ahead of you?

A. No.

Q. See, I suggest to you there were a number of cars ahead of you that had banked back from the crossing, wasn’t there?

A. No.

Q. I suggest to you if you can’t remember them that was because you weren’t really taking notice of them, were you? That’s why you can’t remember them.

A. So you’re saying that I don’t remember the being cars because I can’t remember?

Q. No, because you weren’t looking to see the cars

A. I was look

Q. were you?

A. I was looking.

Q. See, what I want to suggest to you is over that stretch of road given the time of day, given the amount of traffic that would be on this road, I suggest to you that there definitely would have been cars within your sight, wouldn’t you, as you drove up that road?

A. Possibly, yes.

The defendant went on to admit that there were cars ahead of her, but she could not recall how many cars there were. She provided estimates of a car being either 20m or 10m ahead of her, but I can have little confidence in her spatial estimates.

In chief the defendant said that the plaintiff’s vehicle came to her attention “maybe 3 metres” before the spot where the collision occurred: see [22] above. That evidence was repeated at T194.26 and at T194.26 the defendant said she “realised [she] was going to crash into it… [she] was three metres before”. That is reiterated at T194.44 and T195.16. At T195.45 she said, “the nose of the car had just come out”. This evidence was then given:

Q. Well, did you see it actually stationary and then start to move? Or did you only see it when it was already moving?

A. I saw it when it was coming out of the left side of the parked cars.

Q. So when you first saw it, was it already in your lane?

A. No. It was parked.

Q. It was still parked, is that right?

A. (No verbal reply)

Q. And was that when you were just behind it or I think, to use your words, you were - was behind it, next to it.

A. Yes.

Q. And at that point it was still in the parked position, correct?

A. When I was behind it, next to it?

Q. Yes.

A. No.

Q. Well, perhaps you misunderstood my question. What position were you relative to that car when you first saw it move? How far back were you?

A. Ten metres.

Q. Now, where did you see it come from?

A. The left side of where all the parked cars were, the left side of the road.

Q. And if you saw it 10 metres back, did you brake?

A. As soon as I saw the car I pressed my brakes.

Q. Were you braking before the accident, before the collision?

A. Yes.

Q. So in terms of the collision itself, you were already under braking, were you, when the actual impact occurred?

A. Yes.

Q. Do you remember whether there was traffic coming the other way at that point?

A. Yes, there was one car driving past, the other direction.

Q. Do you remember seeing an indicator on the car?

A. On Carlos'

Q. An indicator on the car that ultimately hit you?

A. No.

Q. Do you say there was no indicator on it at all?

A. Yes.

Q. Do you say when the accident occurred the car did not have a blinker on?

A. Yes.

Q. See, what I want to suggest to you is the car was already out in the lane as you approached, wasn't it?

A. No.

Q. What I want to suggest is your evidence before was that ordinarily you don't expect - the traffic doesn't bank up from the crossing, correct?

A. Correct.

Q. I want to suggest to you on this day it was banked up and that took you by surprise, didn't it?

A. No.

Q. You weren't expecting the traffic to be stopped, were you?

A. No. Yes. No. No.

OBJECTION. QUESTION CONFUSING

FITZSIMMONS

Q. What I suggest to you is you weren't expecting that the traffic would be banked up so far back, were you?

A. I was not expecting the traffic to be that backed up, no.

OBJECTION. QUESTION CONFUSING. QUESTION WITHDRAWN

Q. I want you to assume for the purpose of the question that the traffic was banked up. Do you understand?

A. Yes.

Q. If it was banked up, as far as you're concerned, that would take you by surprise, wouldn't it?

A. If it was backed up, I would be surprised, yes.

Q. Because that's not something you ordinarily expect on that road.

A. Correct.

Q. And I want to suggest to you what happened was you were in fact taken by surprise with the traffic banked up, weren't you?

A. No.

Q. And you had no alternative but to try and avoid a rear end collision. That's the case, isn't it?

A. (No verbal reply)

Q. And what you tried to do was go around the car to try and avoid a collision.

A. No.

Q. That's what happened, wasn't it?

A. No.

Q. And there were cars coming the other way, weren't there?

A. Yes.

Q. And at the time of the accident, did you see cars coming the other way?

A. Yes.

Q. And a car in fact stopped, didn't it, almost immediately after the collision? That is, a car coming the other way?

A. No.

Q. And I want to suggest to you the car stopped because you were blocking the other side of the road, weren't you?

A. No.

It ought be noted that neither question, that was objected to as being confusing, was confusing and that the objections were only made after the questions were answered. The inconsistencies in the evidence I have just quoted are:

was the plaintiff’s car stationary or moving when the defendant first saw it;
how far away from it was she when she saw it – 3m or 10m?

The defendant was also cross-examined about the aftermath of the collision. At T203, the following evidence was given:

Q. What I would suggest to you is that Mr Formosa wound down his window and asked you to stay in that position, didn't he, so he could get a photograph?

A. No.

Q. What I suggest is despite him asking that, you drove off to the side of the road, didn't you? Despite Mr Formosa trying to tell you to stop so that he could get a photograph. That's the case, isn't it?

A. No.

Mr Fitzsimmons SC returned to this topic later:

Q. Now, you said that you then pulled over to the side of the road, is it the case?

A. Yes.

Q. And the position is that Mr Formosa then he pulled over, correct?

A. Yes.

Q. And he came to your window, didn’t he?

A. Yes.

Q. And he said to you, didn’t he, “Why didn’t you see me?“

A. No.

Q. And I suggest to you, you just didn’t reply at all?

A. No.

Q. You suggest it yesterday that Mr Formosa in fact said - apologise you, saying it was his fault. Is that right?

A. Yes.

Q. When did he say that?

A. After he had yelled at me, telling me that I am a stupid P plater and I don’t know how to drive.

Q. Well, he didn’t say that at all, did he?

A. He did.

Q. You’ve just made that up, haven’t you?

A. No.

Q. What I suggest to you is that that was the first thing he said to you, “Why didn’t you see me?” Didn’t he?

A. No.

Q. He was angry, was he?

A. Yes.

Q. Was he upset?

A. No, he was just angry.

Q. Yes. What I want to suggest to you is as soon as he said those words, that is, “Why didn’t you see me?” and you stayed in your car and didn’t reply, I suggest he went in and got you a glass of water, didn’t he?

A. No.

Q. Do I understand your evidence yesterday he did at some stage, though, go and get you a glass of water?

A. No.

Q. Not at any time?

A. No. He suggested for me if I wanted a glass of water, but I said, “No. I was afraid.”

HIS HONOUR: You told us that he went and got one.

WITNESS: No, he asked me if I wanted a glass of water, and he went and found his wife or partner at the time.

FITZSIMMONS

Q. Didn’t you tell his Honour yesterday that he came out with a glass of water?

A. No.

FITZSIMMONS: Problem with no transcript. That’s my recollection.

NESBETH: Just to be clear, that certainly wasn’t my recollection.

FITZSIMMONS: My friend reminds me, your Honour, it might have been the witness’s evidence was, “He invited me in for a glass of water.”

Q. Was that the case?

A. That he invited me in?

Q. Yes.

A. Yes.

Q. So he offered you to come into his house and give you a glass of water, is that the case?

A. Yes.

Q. And you declined?

A. Yes.

Q. See, what I want to suggest to you, he actually came out with a glass of water, didn’t he?

A. No.

Q. You also said that you took photographs of each other's cars.

A. Yes.

Q. So did you take photographs of his car at the scene?

A. Yes.

Q. Where are they? Have you still got them?

A. No.

Q. Well, you gave evidence yesterday that both of you took photographs of each other's cars.

A. Yes.

Q. Why don't you still have them?

A. Well, because I have a new phone and that was three years ago and I no longer have that phone with those photos on it.

Q. But

HIS HONOUR

Q. Did you give them to the insurance company?

A. Yes.

Immediately after that evidence was given, Mr Fitzsimmons SC called for the photographs but none were ever produced. The plaintiff’s evidence is that he did not take any photographs of the defendant’s vehicle at the accident scene (T27.12). His evidence was that sometime after the collision he went to the defendant’s residence with his wife to take some photographs of the defendant’s vehicle but permission to do so was refused. It is common ground that the plaintiff did attend at the defendant’s residence. I quoted the cross-examination of the plaintiff about that at [34]. The photographs of the defendant’s vehicle in evidence (exhibit 6) were provided to the plaintiff’s solicitors by the defendant’s solicitors (T27.30). I am unable to accept that either the plaintiff or the defendant took photographs at the accident scene. I cannot accept as being reliable the defendant’s assertion that both the plaintiff and the defendant took photographs of each other’s car at the collision scene. At T211.46 the defendant said that she saw the plaintiff take photographs at the accident scene with his phone, but the plaintiff denied taking photographs and was not cross-examined to the effect that he had done so and was not producing those photographs to the Court as they would not have assisted his case.
There is also inherent tension in what the defendant said about how the plaintiff behaved and what he is alleged to have said at the accident site. The position taken by the defendant, and about which the plaintiff was cross-examined, was that he was angry and abusive. In the last passage I quoted, in one answer the defendant said that the plaintiff apologised to her and admitted fault for the accident but, in the next answer said that he yelled at her, calling her a “stupid P plater” and telling her that she did not know how to drive. The tension is so startling that implausibility looms large. In these circumstances, I cannot accept that the plaintiff admitted to the defendant that the accident was his fault.
At T213, this evidence was given

Q. And then did your mother essentially take over any further discussions with him at the scene?

A. My mother came after we had exchanged all of our details, took photos, and then my mother came with my brother and I left to go to school with my brother.

Q. Did you have any further discussion or talk to Mr Formosa other than what you've told us about?

A. When my mother arrived, is that? Or

Q. Or before or after your mother arrived.

A. Just him telling that, "I'm sorry, it was my fault. I'm sorry for getting angry at you." And that was it. I think he said he couldn’t see properly or the sun was in his eyes. I think.

Q. Do you think - did he say that?

A. I believe so, yes.

Q. Well, you didn't say that yesterday. Did you?

A. No.

A little further this evidence was given:

Q. You see, don't you, that it was effectively some sort of admission, that that's why the accident happened: because the sun was in his eyes?

A. Yes.

Q. Well, did he say it or not?

A. Well, I can't remember if he said that to me or if he had said it to my mum when I had left and then when I saw my mum after that day at school that she had told me. So I'm not too sure, to be honest.

I shall later consider the defendant’s mother’s evidence but it seems likely to me that this was a proposition that was put in the defendant’s mind by her mother.

The proposition that the plaintiff could not see properly because the sun was in his eyes is absurd. As stated in [13], the direction of the straight stretch of Fore Street is from south-east to north-west. The plaintiff, to see the defendant, had to look behind him, using a mirror, either the rear-vision mirror or the right wing-mirror. In doing that, he was looking backwards i.e. to the south-east. The idea that the source of sun light, the sun, was to the south-east of suburban Sydney on 29 May is farcical. The latitude of Sydney is 33.8688 South. I could be pedantic and quote the exact latitude and longitude of portions of Fore St and recorded on exhibits, B, 1, 2, and 5. The Tropic of Capricorn is at 23°26’ south of the equator. A Tropic is defined in the Shorter Oxford English Dictionary (5^th ed.) as “either of the two circles of the celestial sphere parallel to, and 23°26’ north and south of, the celestial equator, and touching the ecliptic of the solstitial points. For those in the southern hemisphere the winter solstice is either 21 or 22 June, i.e. 23 or 24 days after 29 May. At the winter solstice the sun is at its furthest point from the south, i.e. theoretically touching the Tropic of Cancer. It is impossible for the plaintiff to have the sun in his eyes when looking southeast in Fore Street on 29 May. The plaintiff was challenged about this. She admitted that she did not know where the sun was at the time (T215.20).
At the end of Mr Fitzsimmons questioning, I asked the defendant some questions:

Q. Ms Callas, do you say that Mr Formosa pulled out in front of you?

A. Yes.

Q. And you told me yesterday that when he pulled out, he was about 3 metres away from front of your vehicle?

A. Yes, sir.

Q. Could you see the cars parked ahead of him?

A. I can't remember.

Q. To pull out means you have to - if there's nothing in the left hand side lane where cars are normally parked, he could have gradually merged, though, couldn't he, rather than pull out?

A. He could have, yes.

Q. But when you went to park your car, did you have to move up the street to find somewhere to park?

A. I found parking along, like, just next to where the accident had happened. So possibly there was no cars there when

Q. What concerns me is this: you say you were travelling at 40 kilometres per hour, right?

A. Yes.

Q. At that rate, you were travelling at 11.1 metres per second, right?

A. Yes.

Q. You see him when he's 3 metres ahead of you. You have less than a third of a second to react. It's quite impossible for a person to react that quickly by, for example, slamming on the breaks, right?

A. Yes.

Q. You were travelling at 40 kilometres per hour. He would have been travelling at a slow speed, right? If you're travelling 40 kilometres per hour, you would have pushed his car up the road yet but there's no damage to the left hand side of his vehicle. That is, he wasn't pushed into anything. Did you push him up the road?

A. Possibly a little bit but not a lot, no.

Q. From the physical damage, I know that the front of your vehicle struck the driver's side door of his vehicle, right? So it was side on. So, theoretically, if you're going at 40 kilometres per hour in a heavy vehicle, you'd push him up the road. If he was coming out from being parked somewhere, you would have pushed him into a parked car. But that didn't happen, did it?

A. No.

Q. Nor did you brake.

A. I did brake.

Q. You did brake, did you?

A. Yeah .

If the defendant only saw the plaintiff’s vehicle when she was 3 from it I find it impossible to accept that she would have time to react, brake and sound her horn. Even if she were 10m away from the plaintiff’s car when she first saw it (her alternate distance) and she was travelling at 40kph I still find it extremely difficult to accept that she had time to brake and sound her horn. She would have to be much further away from, the plaintiff’s vehicle to do so. If she were travelling at the speed limit, 50kph, I would find accepting her evidence even more difficult.
There are other inconsistencies. At T181.11, in chief, the defendant said that the plaintiff pulled his car off the road before she did, but at T208.05 (which is quoted above in [41] she admitted that she pulled her car off the road first. At T 182.01, when discussing the damage done to the plaintiff’s vehicle she said:

“I can’t recall whether the car was a two-door or a four-door, but it was either behind the two doors, or the front door and the boot area.”

But at T203.04 she admitted that there was damage to the driver’s side door of the plaintiff’s vehicle, which is what the photographic evidence shows.

The evidence of Mrs Nikki Callas

Mrs Callas gave evidence immediately after the defendant did. She said that her daughter called her and told her that she had had a car accident. Mrs Callas arranged for her son to drive her to the accident scene. Her son parked his car “before”, i.e. south of, where the defendant had parked the Mercedes-Benz. Her first conversation was with her daughter:

Q. So, was there a conversation between you and your daughter?

A. Yes, she said to me, “Mum I’ve had an accident. I’m so sorry. It was - I’m petrified. This gentleman - this man has been abusing me and telling me off. He’s offered me, you know, a glass of water inside to use - wanted me to go into his home. I’ve had to stay in the car and - because I was petrified of him,” she said to me. And she was not going to get out of the car until he calmed down abusing her, apparently. And I was in shock, and when I saw him, he’s come up to me and, I’m so sorry. I said to him, “Well how can you do that? How can you yell at someone in a school uniform? Just - you wouldn’t know how old she was.”

She’s a young child. Because I’m a school teacher. I said, that’s even more so, I said. As long as everyone was okay, no one’s been injured. No one’s been hurt, I said to him. Why would you be telling her off? Why would you be abusing her? Why would you even after all of that even ask her into your own home? We don’t even know who you are.

There was then an objection and the evidence continued:

Q. So, in terms of the conversation you had with this man, I appreciate you’ve said certain things about your daughter being a school girl and the like, but otherwise, did you talk about anything else?

A. I asked him - obviously, the cars were in a - in a safe spot. There was no car that needed to be towed, so I said to him, okay, have we exchanged details and everything? And he said, “Yes”, and I said, “So” - I made sure I checked all the particulars that he had received and Sofia confirmed with her if she had everything and then I took some photos of his vehicle at the same time, I asked him, which I had taken. He also gave me his phone number, I gave his mobile number. I exchanged details too with him, being a parent, obviously.

At that point because Sofia had already given his details she went back home with her mother. We didn't call the police because no cars needed to be towed or anything like that.

Q. I appreciate that.

A. Everyone was fine.

Q. So I think you mentioned your daughter left at some point.

A. Yes she did. With my son.

HIS HONOUR

Q. Did you say he took her home or did he take her to school?

A. I'm not certain whether he took her home or to school. That was a very long time ago. I can't remember, but she did leave with him. I can't recall exactly.

NESBETH

Q. If you can't recall

A. I can't recall exactly.

Q. So at some point your daughter and son left and I take it you stayed?

A. Yes.

Q. Were any words exchanged between you and the man after that?

A. After that, because I obviously I mentioned to him prior - in the sense of how he could speak to a young kid in that manner - child/girl/young lady. He apologised to me and he said, "I'm really sorry." I goes - he mentioned to me that - hang on - I'll get it exactly - "I'm really sorry that I spoke to her in the that way. I'm a schoolteacher also," he said to me. He mentioned to me where he worked - in the Blue Mountains somewhere. He was on his way to work. He said to me he was in a hurry or something like that, or possibly more than anything the sun was hitting his eyes and he didn't see.

Q. So he said to you, did he, that the sun was in his eyes and he didn't see?

A. The sun was in his eyes.

I must interpolate at this stage that any photographs taken by Mrs Callas at the accident scene have not found their way into evidence. It is based on the last piece of evidence I have just quoted that lead me to the view expressed in [42] that the concept of the sun being in the plaintiff’s eyes was put into the defendant’s mind by her mother. On Mrs Callas’ evidence, the “sun in the eyes” allegation was only made after the defendant had left the scene with her brother. The plaintiff was not cross-examined about the “sun in the eyes” allegation. Bearing in mind what I said in [43], really a fact that any resident of Sydney or this State would know if that resident was cognisant of his or her physical environment, I can only conclude that the allegation is a fabrication by Mrs Callas. This causes me to have doubt of the truthfulness and reliability of her evidence.
Her evidence continued in this fashion:

Q. When did you see him again?

A. May have been the day after or the following day after that.

Q. In what are the circumstances in which you saw him then?

A. I was at home in the morning at home. My son was asleep in his bedroom and I heard a little bit noise on the side of my driveway where my car was parked. My son said, "Mum, there's someone out there." It's odd for someone to come to that property where I'm working because there's no other houses, there's no driveway or anything like that. It's a secluded on a - we live in an old caretaker's home at the moment and it's the only house - we live in a rugby field - so I have some loose gravel on the side of my home. That's quite noisy if someone's walking through there. So I've quickly gone to Steven's room and I saw a gentlemen in the back there on the side of my home and he started walking towards the gate. So I've opened his window and I've yelled out. He kept walking so I've gone to the front door quickly. I only have a very small home there.

Q. What did you yell out when you first saw him?

A. "Hey, who's that?" And then he's turned round and I've recognised who he was, because obviously I spoke to him the day before. I recalled exactly who it was, to be quite honest, because he was wearing a hat with a feather, I recall on the day, and he was wearing that the day he came to my home. I don't really see people that often walking around with hats on.

Q. So at some point you opened the front door. How did you - what happened after this?

A. He's come up to me and he goes, "I've just come to see if everything's okay. How is Sophia?" I said, "How are you? How are you feeling?" He said, "No, I'm fine." "Sophia okay," and I said, "Yes, she's fine too."

Q. Was anything else said between you?

A. Yes.

Q. What else was said?

A. He mentioned to me that I have a very expensive vehicle and that he wasn't insured and that it's going to cost a lot of money for him to - just one moment - I'm just trying to recall the order of this happening. Can I please take my time thinking of this?

HIS HONOUR: Certainly.

WITNESS: Before he mentioned my car I said to him, "Thank God everyone's fine, everything's okay. I'll get my vehicle fixed, we're all ensured." He goes, "I'm so sorry it happened." When I said to him, "This is what we pay insurance for," that's when he came up and said, "I don't have insurance." I said, "What? You're not insured?" That's when he turned around and said to me, "Look, I can't afford to fix your vehicle. I have my - my mother can help me out, but she's from Italy. She lives in Italy."

OBJECTION. FORM. OBJECTION NOT PRESSED

NESBETH

Q. So he mentioned insurance.

A. Yes. He said to me he didn't have insurance.

Q. Leaving aside the mother in Italy, was anything else said about insurance or in relation to the damage to the vehicles?

A. He told me that my vehicle was going to cost him an absolute fortune and that was the only way he could have my vehicle repaired. I said to him, "I'm really sorry. I don't take that type of thing. I pay "

Questions were then asked to which objections were taken, and the questions were rejected. The evidence then continued:

Q. Did anything else happen after that? He's offered you some money as you've said. Did anything else happen?

A. Yes. There was a lady that appeared off the side entering my property. A red-headed which he introduced her as his wife. At that point is when I - she started, I think, proceeding down there when I said, "No, I'm not interested. Please just go away and don't come back here." The moment that I refused that, that's when he turned around and said, "Well, I'm not feeling the best." His story sort of changed from when he came and said to me that he was fine.

I asked him to leave and not to come back.

HIS HONOUR

Q. Did he ask could he photograph your vehicle?

A. Never.

Q. Did you see him photographing your vehicle?

A. No.

NESBETH

Q. Just in relation to when you first saw him where was that relative to where your vehicle was?

A. Right where my sons bedroom is where I park my vehicle so he would have been a couple of steps just off my vehicle, the back end of the car.

In essence, Mrs Callas was alleging that because the plaintiff’s vehicle did not have comprehensive insurance, and because the cost of repairing the Mercedes-Benz would be so great, the plaintiff offered her a monetary solatium which he could obtain from his mother in Italy. I quoted the relevant part of the cross-examination of the plaintiff at [34]. Neither the quantum of the solatium or the source of that money was ever put to the plaintiff. The question of the solatium and how Mrs Callas categorised it were the subjects of the successful objections. The point of my two questions was that the thrust of the plaintiff’s case is that this visit to the Callas’ residence was to obtain photographs of the defendant’s vehicle, not to make admissions of responsibility and to make an offer of a solatium. The first of those reasons, that given by the plaintiff, appears more plausible than that attested to by Mrs Callas.

In cross-examination, Mrs Callas was reluctant to make concessions. Although the Mercedes-Benz was identified by the plaintiff as her mother’s car, her mother was reluctant to concede the point. Although the vehicle was registered as being owned by Mr Callas’ business (completely understandable if there be a family business, which there was), Mrs Callas maintained that the family “shared cars at the same time” but did admit that she used that vehicle “predominately” (T232.28). She was also given to hyperbole:

Q. Now, when you saw Mr Formosa the day or so afterwards, I suggest to you he came up to the front door, didn't he?

A. No.

Q. And I suggest to you he asked you if he could take some photographs of the car, didn't he?

A. No.

Q. You don't have any recollection of that at all?

A. No.

Q. And I suggest to you that you wouldn't need to take photographs of the car. That's what the position is, isn't it?

A. Absolutely not. As I mentioned to you before, my son was in his bedroom and I heard a - we heard a commotion and that was the first thing I went to on the side, because I had a clear vision of all over the - across the front and back of the home. It's

Q. I suggest to you he didn't offer to pay you any money for the car, did he?

A. He absolutely did.

Q. What I suggest he said to you was he essentially proposed that you each just walk away. Do you understand? That you each pay for your own damage. That's what he suggested to you, didn't he?

A. No.

Q. At no stage did he offer money.

A. Yes, he did.

Q. At no stage did he mention anything about his mother, did he?

A. Well I - yes, he did.

Q. You've just made that up, haven't you?

A. No. How - well, I don't even know if she does really actually live in Italy, does she?

Q. You've just made that up, haven't you?

A. How would I know and why would I make that up? I'm so

Q. And you've made up this thing about him sneaking around the house, haven't you? Haven't you?

A. No, I haven't.

The “commotion” was the noise of the footsteps on gravel (T235.22).

Conclusion on liability

I have carefully considered the evidence given by the plaintiff, including his cross-examination on matters related to the quantum. I accept that he has done his best to tell me the truth. I found his evidence consistent and compelling. In the defendant’s evidence are inconsistencies and implausibility. I prefer the evidence of the plaintiff to that given by the defendant. I have concluded that the evidence given by Mrs Callas was the subject of bias against the plaintiff: she had an animus to besmirch his character. For example, the evidence I quoted in [51] suggests that the plaintiff only started to feel unwell after Mrs Callas rejected the offer of a solatium, but the plaintiff had visited a general practitioner, complaining of pain, on the day of the accident was, at the earliest, the plaintiff’s visit to the defendant’s residence was on the day after the accident. I do not accept Mrs Callas’ evidence of admissions being made by the plaintiff. Nothing in Mrs Callas’ evidence corroborates the defendant. I accept the version of the collision attested to by the plaintiff. I accept that he had successfully pulled his vehicle out of the parking, or kerb-side, lane and was wholly within the north-bound traffic lane, and had become stationary behind cars ahead of him which were stationary. It appears the defendant sought to overtake the plaintiff but, confronted by an oncoming south-bound vehicle, identified by the plaintiff as the “orange car”, the defendant pulled her vehicle to the left to allow that south-bound vehicle to pass, colliding with the plaintiff’s vehicle.
I turn to the particulars of negligence pleaded in the Statement of Claim:

Failed to keep a proper lookout

In seeking to overtake the plaintiff, the defendant failed to observe that he was, or might become, stationary because cars which were stationary ahead of him, and failed to observe that there were other vehicles heading south on the other side of the carriageway.

Failed to drive in a safe manner

The defendant chose to dive on the wrong side of the carriageway when it was not safe so to do. The defendant then sought to return to the correct side of the carriageway, where it was occupied by the plaintiff’s vehicle.

Failed to drive at an appropriate speed to the subject road conditions

Why the defendant sought to overtake the plaintiff is unclear but it may be because she could not stop before colliding with the rear of the plaintiff’s vehicle and thus sought to overtake the plaintiff.

Failed to maintain proper control of the motor vehicle

The defendant failed to keep her vehicle on the correct side of the carriageway and failed to brake and bring her vehicle to a halt, behind the plaintiff’s vehicle.

Failed to do all things necessary to avoid placing the plaintiff in peril.

See (a), (b) and (d) above.

Failed to keep a safe driving distance between himself (sic) and the plaintiff

I reluctantly excuse the egregious grammatical error. The defendant should have driven her car in such a fashion as to bring it to a halt behind the plaintiff’s vehicle, without colliding with it.

Failed to avoid colliding with the plaintiff

The collision would have been avoided if the defendant drove her car as she ought, as described by me in (f) above.

Failed to safely control their (sic) car

I, again, reluctantly excuse the two grammatical errors: a split infinitive and the use of a plural pronoun instead of the singular pronoun. See (a), (b), (d), and (f) above.

Res ipsa Ioquitur

Vide (a), (b), (d) et (f) supra. Latine quod quaeretur, respondendum latine.

Quantum

The plaintiff’s medical case

The plaintiff makes no claim for non-economic loss. However, his claim for economic loss depends upon his medical case. The plaintiff denied any problems with his neck, shoulders or back prior to the collision (T17) and I accept that. The plaintiff noted difficulties on the day of the collision, shortly after it. After Mrs Callas left the accident scene, the plaintiff returned to his residence, to make himself coffee. He reached out with his right arm, leaning forward and reaching above shoulder height but found he could not grasp the jar for which he reached. He had symptoms in his right shoulder and right arm (T28). He went to the Norton Street Medical Centre in Leichardt about mid-morning on the day of the collision. He saw Dr Rino Tringali. Dr Tringali’s notes are these:

“Involved in MVA driver wearing seat belt in stationary vehicle when hit by another vehicle. Was not knocked out or unconscious but complains of shock, cervical pain, interscapular, radiating down right upper limb.

Right shoulder pain +++, right elbow pain.

Back pain, right hip pain.”

Dr Tringali prescribed Panadeine Forte and Voltaren Osteo Gel.

The plaintiff returned to see Dr Tringali on the following day, Tuesday 20 May 2017. The doctor’s notes are:

“Headache occipital area +++ right remporal “halo configuration”.

Cervical pain, right shoulder,

Intrascapular.

Back pain.

Right hip pain.

Confused anxiety fear of driving.”

Generally, the doctor has not used punctuation marks but I have added them for ease of reading. I have, however refrained from placing any on the last line I quoted because of my uncertainly as to what the doctor was recording. The plaintiff told me that he did not “feel uncomfortable driving” and that he did not drive a car again until he bought a new car in January 2018 (T30).

The plaintiff again consulted Dr Tringali on the following day, Wednesday 31 May 2017 when the doctor made these notes:

“Cervical pain with radiation down right upper limb and paraestheria 2^nd, 3^rd, 4^th digits. Back pain right hip pain +++.

Intrascapular pain right greater than left.

Right shoulder pain.”

Dr Tringali issued a certificate certifying the plaintiff as unfit from work for 29 May 2017 to 5 June 2017 (exhibit K).

On Monday 5 June 2017, the plaintiff returned to see Dr Tringali. The doctor’s notes for this consultation are:

“Headaches, cervical pain, intrascapular pain, weakness right hand, numbness 2^nd, 3^rd, 4^th digits, TMJ [tempero-mandibular joint] pain left greater than right area.

Right shoulder pain

Back pain”

On this occasion Dr Tingali prescribed Mobic. The plaintiff was off work during the week commencing 24 May 2017 and thought that he also was off work during the week commencing 4 June 2017 (T31.31). I am prepared to accept that he was off work for two week, absent from both schools he was supposed to work at during those two weeks.

The plaintiff told me, and I accept, that during the first week he was referred to Mr Leo Viola, an osteopath, by Dr Tringali, Mr Viola treated the plaintiff with massage and acupuncture (T30). He massaged the plaintiff’s neck, shoulders and back. The plaintiff said that he continued to experience pain in his neck and back throughout the remainder of 2017 and he also had problems with his shoulders (T31.18). The records of the Norton Street Medical Centre record two further visits to Dr Tringali. On 26 June 2017 the doctor recorded:

“Cervical pain, intrascapular pain.

Back pain.

Right shoulder pain +++”

On the following day, 27 June 2017, Dr Tringali recorded:

“Cervical pain, upper limb pain.

Right shoulder pain, intrascapular pain.

Back pain.

Leo Viola osteopath.”

The doctor went on to record symptoms suggestive of an upper respiratory tract infection, for which medication was prescribed.

At some stage after the accident, probably in August 2017, the plaintiff separated from Madeline Webb, who remained living in Fore Street. The plaintiff moved to live with friends in Petersham, but was looking to find somewhere to live in the Blue Mountains. He found accommodation in a room in a share house in Hazelbrook (T123.30). According to the plaintiff’s chronology (MFI1) that was in September 2017. Towards the end of 2017, the plaintiff made a trip to Europe where he caught up with a friend, Anna Pollakowski. Ms Pollakowski is from Freiburg in Baden Wurtemberg in Germany. She does not speak Italian and the plaintiff does not speak German. They converse in English. According to Ms Pollakowski, the plaintiff went to Europe either in September 2017 (T162.07) or October 2017 (T161.18). On this occasion they formed a romantic relationship which eventually lead to marriage.
By December 2017, the plaintiff had returned to Sydney. On 6 December 2017, the plaintiff was examined by Dr M. Hawi at the request of the plaintiff’s solicitors. Dr Hawi’s letterhead bears the title “Sydney Medicolegal”. Dr Hawi is a general practitioner. According to Dr Hawi, these were the plaintiff’s symptoms on 6 December 2017:

Current Symptoms:

Back pains have continued since the accident. The pains have been predominately right sided and continue to radiate down his right arm. The neck and right arm pains are associated with one another and have been affecting his sleep. He describes sharp pains radiating down from his neck to his right hand. His neck pains have affected his driving. Carlo has sold his car as he has not been able to drive properly He fears that he can’t safely turn his neck whilst driving.

Left shoulder pains have been present but are much milder than the right.

Lower back pains also continue and have worsened since stopping his osteopathic treatment. He has been unable to walk for prolonged periods since his accident. He also finds that he has been unable to lift heavy objects since his accident, he has given up his chef/cook roles due to this.

Carlo continues to complain of intermittent pains radiating down his right leg. He has been unable to ride his push bike since the accident or play tennis due to flare ups of pains which ensue following these activities.

His previous de facto relationship suffered due to financial and sexual dysfunction and inability to share household chores related to his accident. This relationship ended in August 2017.

Q. So in terms of as at July 2019

A. Mm-hmm.

Q. is it the case that your biggest concern really was your left arm?

A. Absolutely, because I was not able to hold my baby.

The problem with Dr Menogue’s history is that whilst it is true that the first recorded complaint about the plaintiff’s left upper limb below the shoulder was on 6 March 2019, the shoulder complaints are recorded as far back as 6 December 2017.

At T144, the plaintiff gave his daughter’s date of birth, 25 February 2019, and then this evidence was given:

Q. So was that around the time that you say that your left arm symptoms were aggravated?

A. Yeah, because I started using my left arm. At that point my wife, Anna, was doing all the domestic things so I didn't really use it and at that point I had to. I had to support her like.

Q. Again I suggest to you that you did not complain of any left symptoms until 2019.

A. The burning, no, absolute, the burning, no. The burning has been escalating since then.

The second question just quoted does not specify which “left symptoms” Counsel was referring to but I assume, as the plaintiff seems to have done, that it means symptoms of the left arm, taking up the first question quoted.

The other piece of lay evidence that ought be considered was given by Ms Pollakowski. After saying that she met up with the plaintiff in Europe in late September 2017, spending three weeks or a little longer with the plaintiff, this evidence was given:

Q. Can you tell his Honour what he was like at that stage?

A. Yes, he was, like - he was injured so he couldn't move his arms proper. He was, like, in pain.

Considering all the evidence I have no hesitation in finding that within weeks of the collision, the plaintiff commenced to experience symptoms in his left shoulder, which may have impeded his ability to use his left arm. However his main complaint was about his dominant right shoulder and Ms Pollakowski was aware of his bilateral difficulties in Europe in October 2017. By December 2017, the plaintiff was actively complaining about his left shoulder to Dr Hawi and to doctors thereafter. At least by 6 March 2017 symptoms had increased in the left upper limb, and decreased in the right upper limb: There were only nine days between the birth of Noa Grace and the plaintiff’s visit to Dr Kemp. The alleged novus actus, reaching out and lifting something off a bedside table is hardly an event likely to cause pathology. It appears to me to be only a demonstration of some underlying pathology.
I accept that the difficulties raised by the defendant, and those I have recently described are best answered by Dr Richard Powell, qualified by the defendant. He took a history of difficulties in the neck and of symptoms affecting both shoulders and both upper limbs. He was provided with “documentation” but I do not know what it was. I would, presumably, have included the certificates made by Dr Tringali. Dr Powell:

accepted the veracity of the plaintiff’s complaints;

accepted that they were directly related to injuries sustained in the collision;

raised no concerns about causation or a novus actus; and

diagnosed “persistent cervicobrachial symptoms related to a whiplash injury”

The diagnosis is apt to describe a condition in the plaintiff’s cervical spine causing symptoms in the upper limbs. That could be consistent with a disc problem at C6-C7 but, unfortunately, the doctor has not seen the CT Scan. Unfortunately Dr Powell was not asked to give a prognosis but he did recommend treatment.

On the question of incapacity Dr Powell expressed this view:

“Although Mr Formosa remains symptomatic in relation to the neck and upper limbs, I believe he still has the physical capabilities to perform his pre-injury duties as a tutor and teacher’s aide. He would need to limit repetitive work above shoulder height, should alternate his tasks where possible and have the opportunity for regular breaks. Within those restrictions he could work his pre-injury hours. I note he has returned to his pre-injury duties with the Department of Education and Training and now has a one-year temporary contract working at the Warrimoo High School.

However, whilst the plaintiff had to do, sometimes, as a teacher’s aide was not what many teacher’s aides do.

The plaintiff’s employment history since the accident

But for the two weeks the plaintiff had off work in 2017 he performed his duties for both Winmalee High School and Newington College. There were, however, difficulties. At Winmalee High, the plaintiff was working with children with disabilities. He could no longer lift those children (T31.49). The school had to adjust his duties. Some of the students at Winmalee High had learning disabilities, others had physical disabilities. The students were between 12 and 17 years old. The plaintiff referred to difficulties lifting students with physical disabilities e.g. onto and off buses. After the plaintiff moved to Hazelbrook in September/October 2017, he had to commute to Newington College:

Q. At some stage, did you move to the Blue Mountains?

A. Yes. October 2017.

Q. Why did you move to the Blue Mountains?

A. Because at that point, I wasn't driving anymore. And I had to get a train to Springwood, then a bus. And I was always coming late to school. And - and my boss said that - wasn't happy about it so I had to move to the mountains so I was closer to Winmalee, which, at the time they promised me three days next year, so I was keen to keep that job, secure the job. Yes.

Q. Once you'd moved to the Blue Mountains in October 2017, what was happening in terms of both jobs, your commute? What were you doing?

A. I kept working for Winmalee High School and then I - at the point, I was getting the train from - I lived at Hazelbrook at the time and I took the train to go to - to Stanmore. And

Q. And how did you find doing that commute?

A. Well, the - the lack of sleeping didn't help. And it was very exhausting even - it - it was exhausting. Better than driving, but

There was then an objection and the evidence continued:

Q. So, Mr Formosa, you were talking about a position - I think I was asking you about the commute from Blue Mountains to Newington. You've indicated that you were doing that effectively, by public transport?

A. Yes.

Q. If recall correctly, I was asking you about how you were coping with the Newington work with that commute?

A. Yes.

Q. I think you may have been in the middle of giving an answer when there was an interruption.

A. Yes, so, that was the end of 2017 or the second half and after October when I moved there, and I had to - because I didn't drive - I didn't even drive to the station. I had to walk there, and then I had to get the train, stop in Stanmore and I had - I had pain even - even sitting in the train, even doing simple things like, as I was saying, reading a book, would be, like, problematic, you know, and I just - by the time I got to Stanmore I was pretty exhausted and, yeah, you know, I wasn't - I couldn't give the best, you know, to the students, so.

For 2018 the plaintiff was again offered jobs by both Winmalee High and Newington College, but he could not do both. Winmalee High was offering him work for three days per week but Newington College wanted him to work for “two or three days per week”. The plaintiff decided to take the job at Winmalee, which obviated commuting between Hazelbrook/Blue Mountains and Stanmore. He did three days per week at Winmalee, but again did not lift physically disabled students. When Ms Pollakowski arrived in Australia in January 2018 to live with the plaintiff, she was not permitted to work, until she obtained a partner visa, after their marriage in October 2018, and she started working in November 2018 (T166). At Winmalee High, the plaintiff was earning “around $160 a day” i.e. $480 a week and he found it very difficult to support himself and Anna on that income. He looked for further work. He obtained a Responsible Service of Alcohol Certificate and found work at the Metropole Hotel in Katoomba on 4 April 2018 (exhibit H, p22). Initially this was serving at a bar, “sometimes three hours per week”. In addition, the plaintiff had casual extra work at Winmalee High “but not very often” (T40.13). In September 2018, the Metropole Hotel offered him a job as a breakfast chef “five hours to six hours per week”, which he did for about eight weeks. He was cooking a buffet breakfast for a small number of guests (T41). It involved some work that he found physically demanding, “moving heavy things, cleaning”. At the Metropole Hotel the plaintiff was earning $24 per hour. More work than six hours per week was offered to the plaintiff, “up to 20 hours a week” (T42.32) but he did not take up that further work as he felt he could not physically do it (T42.38). The plaintiff gave this work to Anna when she became entitled to work in Australia i.e. after their marriage.
In 2018, the plaintiff also participated in a project or program for the Department of Education at Miller High School. Such projects could involve the plaintiff assisting students with a mural, art projects or with animation. In 2018 the project involved a mural. The plaintiff gave this evidence:

Q. Did you get involved physically, like, hands on with the mural?

A. I had to. And teaching the other kids how to do that too.

Q. How did you find doing that?

A. Very, very exhausting. I didn't

Q. Why? What was the problem?

A. It was

Q. What's involved in your doing(as said)?

A. Usually they are panelled, like, walls about 2 metres by 4 metres depending, and of course I have to, together with the kids, I teach them how to draw and then paint layer on this - on this wall. So it's - it involves a lot of - a lot of energy and a lot of physical energy.

Q. And I take it a lot of arm work.

A. A lot of arm work. Yes. And leaning down and, you know.

Q. Since the accident, how many of these have you done?

A. I tried this one in 2018. At the end of the project, I understood I could not continue so I stopped there because by the end of the week, I was really exhausted and very, very tired. And my wife, she said to me, "You can't continue to do this."

In 2019 the plaintiff continued to work for 3 days per week at Winmalee High (T45.33). He was also doing more bar work at the Metropole Hotel for 3 to 4 hours per fortnight when there were concerts at the Hotel. He also sought casual work with the Department of Education, seeking to supplement his income, as his wife stopped working in January 2019 prior to the birth of Noa Grace. In August 2019 he again did work at Miller High School – on this occasion he organised the event and, again, there was a mural, which he could not complete because it had exhausted him (T46.40). In 2019 he was offered two further opportunities to do such projects/programs but deferred one until January 2020 and the other he proposed to carry out in March 2020.
In 2020, the plaintiff obtained work for five days per week as a teacher’s aide at three schools; Winmalee, Katoomba and Springwood High Schools. The plaintiff gave this evidence about his current work regime:

Q. In terms of doing that work, how do you find doing that work?

A. It - it's mentally hard, but physically it's okay, so.

Q. And you mentioned in an answer a moment ago that sort of the duties, or what you're doing has changed.

A. They changed, yes.

Q. So in what way has it changed from what you were doing before?

A. Be - before I was assisting kids with the physical disabilities, and - and slowly I started working on the kids with learning disabilities because of the accident, and since then, I've - I've been doing that.

Q. So less physically demanding work.

A. So, yes.

Q. So you now have a young child.

A. Yes.

Q. And is your wife - has she gone back to work after the birth?

A. No.

Q. How are things a home, in terms of financially?

A. At the moment, better, because I finally have five days a week, so it's - it's better, but it will be - of course, if she would work as well. And eventually, she will. So if I could work on weekends in kitchens, I would be more than happy to do that to, but

Q. You would do that now.

A. Yes.

Q. And is that because you're talking about financially, it's still a bit tight?

A. Yes, of course.

Q. Do you think you can do that - well, I'll go back a step. If you didn't have the problems you've got now, you were saying that you'd try and do some weekend work as well.

A. Yes.

Q. And that would be in a café or something like that.

A. Restaurant, café, yes.

Q. How many hours do you think you would, if the accident - if you didn't have your problems, would you be doing, say, weekend work?

A. Weekend work - well, maybe be - between 12 and 14 hours.

Q. And the position is, you're not doing that. Why is that?

A. Again, like I might be right handed, but when you cook you - with two hands, and involves lifting things. So it's - it's more about that. Like, I - sometimes if I keep something with my left hand, I'm - it may just drop. So it's not something I can do in the kitchen, especially with hot things.

Q. How are you by the end of a week' work, now working five days? How do you feel by the end of the week?

A. I'd say by the end of the day I'm pretty tired, but there's a baby to take care of, so.

Q. Is that just mentally tired, or is it physically as well?

A. No.

Q. What's position?

A. It's - it's mentally, but physically at times, depending, like - but I just started, so I'm just

Q. How long have you been working at the five days now?

A. Week - it's week three now, so.

Q. Is the position at this stage that you will continue to do the five days?

A. For this term.

Graphic design work

The four projects/programs referred to thus far are a form of graphic design work, using skills acquired by the plaintiff in Italy. There was further evidence given about such projects/programs and other examples of graphic designing that the plaintiff had in Australia. The actual evidence, peppered with objections, can be found between T47 and T52.16. I need not canvas this. The plaintiff only seeks a solatium for loss of a chance.

The plaintiff’s claim

A. Past economic loss

For the two weeks the plaintiff had off work immediately after the accident the plaintiff claims

Newington College: lost earnings $325 pw.

Winmalee High School: lost earnings $175 pw.

Total lost earnings: $500pw.

Claim: 2 x $500 $1,000.

I allow that sum.

For the period from 12 June 2017 until the end of the year the plaintiff claims a further sum of $2000 representing occasional days that he was absent from work having treatment. The sum represents 10 days off work during, in essence, 6 months. The plaintiff gave evidence to this effect at T31.32 to T31.40. I allow this sum.
For the 2018 calendar year the plaintiff claims $15,400 being the loss of $350 per week net for 44 weeks, being what he would have earned if he had worked at Newington College or in a second job in the Blue Mountains. The financial evidence before me is not straightforward. For the financial year ending 30 June 2017 that evidence shows:

Department of Education (2 days pw): $9,496 both gross and net.

Newington College (2 to 3 days pw): $8.740 both gross and net.

For the financial year ending 30 June 2018, that evidence shows:

Department of Education $12,390

Winmalee High School (30 April to 30 June) $4,414

Newington College $4,080

Metropole Hotel $1,046

Centrelink $451

Total $22,381

There was a motor vehicle tax deduction of $2,356 reducing the taxable income to $20,025. Income tax payments withheld of $5,361 where wholly refunded. It appears to me that the moneys paid to the plaintiff by Winmalee High School itself were for the causal work he obtained from that school. The money paid by the Department of Education, $12,390, presumably for 3 days per week is consistent with the payment in the previous financial year of $9,496 for 2 days per week. For an extra 2 days work per week at either Winmalee or another school in the Blue Mountains I am prepared to allow $4,750 per day per annum or $9,500 per annum but, if the plaintiff had such work I find it difficult to accept that he would have done the work at the Metropole Hotel or been entitled to claim Centrelink benefits, so I reduce that sum by $1,500 (rounding off). I allow a loss of $8,000.

For the 2019 calendar year the plaintiff claims $20,218 computed thus:

20 hours pw x 52 weeks x $24 per hour, less 19% for income tax.

This represents 20 hours per week doing casual work at the Metropole Hotel (T240.14), relying on evidence given at T42.32 that he was offered up to 20 hours per week by the Metropole Hotel. However, it appears to me that, assuming that in 2018 he found work for 5 days per week as a teacher’s aide, he would have continued to do such work in 2019. Based on the data canvassed in the last paragraph, but allowing an increment for inflation, I allow $10,000 for additional work as a teacher’s aide. However, in 2019 he had to support his wife and his child and I accept that he would have worked on weekends to supplement his income, especially as his wife was not working after January 2019. The plaintiff gave evidence that, in 2020, he would work between 12 to 14 hours per week, quoted at [84]. The same could have been done in 2019. I average that at 13 hours per week. However the plaintiff did work for 3 to 4 hours per fortnight at the Metropole Hotel. I average that at 2 hours per week. The plaintiff is entitled to 11 hours pw x $24 per hour for 52 weeks, less 19% for income tax. That gives a lump sum of $11,120 rounded out. I have not deducted income tax form the amount allowed for work as a teacher’s aide as it appears to me from the figures quoted in [90] that such earnings would not have been taxable. I would therefore allow $21,120 for 2019, but that is greater than what the plaintiff claims. I therefore allow the sum claimed: $20,218.

For the year to date, 2020, the plaintiff claims $30 per hour for 14 hours per week. Consistently with what I have just said I allow 13 hours per week, but only $25 per hour. I write these reasons on 18 August, hoping to deliver judgment electronically on 21 August. That represents 34 weeks. However, since this case was heard the Covid-19 health emergency has occurred. Hotels, clubs and restaurants were closed from 15 March to 14 May. Hotels were allowed to serve meals from 15 May but were more freely opened on 13 June. There were 11 weeks to 15 March. From 13 June there have been 9 weeks. I accept that the plaintiff could have done casual work at the hotel for 20 weeks. I therefore allow 13 hours per week for 20 weeks at $25 per hour less 19% for income tax. That represents a lump sum of $5,265.
The total for past economic loss is:

ParSum

$1,000.00
$2,000.00
$8,000.00
$20,218.00

[94] $5,265.00

Total $36,483.00

In addition the plaintiff claimed a solatium for loss of graphic design work of $10,000. That is speculative. Proceeding conservatively, I allow a solatium of $5,000. The total for past economic loss is, accordingly, $41,483.

B. Past loss of superannuation

I allow 11% of $36,483 (the methodology adopted by the plaintiff). That amounts to $4,013.

C. Future economic loss

The plaintiff claims $150,000. The plaintiff supports that claim by referring to $24 per hour (the rate he was being paid in 2018 at the Metropole Hotel) for an average of 13 hours per week (the figure I adopted in [95]) less 19% for income tax, rounded at $253 pw, multiplied by the multiplier to age 67, 809.6 which produces a lump sum of $204,828. In these circumstances, Mr Fitzsimmons SC described this part of the plaintiff’s claim as “modest”.

The problem about the future is that I really have no prognosis. There is a claim for future medical expenses, what I propose to allow, but such treatment is designed to alleviate the plaintiff’s symptoms, rather than perpetuate them. However, further investigations might suggest a permanent impairment such as a degenerative disc, not amenable to surgery. With a guarded prognosis it is easy to allow a claim such as is presently made. A way to approach the matter may be to discount $204,828 further from $150,000. Another way of looking at the matter is one I raised in addresses (at T271.01), that it would be in the plaintiff’s interests to go to university here and to obtain a degree in Education, such that he could teach languages (in particular Italian or other Romance languages), Fine Arts or Graphic Design or any combination of such subjects. The difference between wages paid to fulltime secondary teachers and casual teacher’s aides is significant. If the plaintiff’s tertiary qualification from Italy be recognised in Australia, he would obtain a degree in education, part time over 4 years.
If one approaches the matter on the basis just mentioned, allowing the plaintiff to do such teacher’s aide work and doing his education qualification part time he would need to forgo the work at e.g. the Metropole Hotel. I would then allow $25 per hour for 13 hours pw or $325 for 4 years, starting in 2021. The 4 year multiplier is 189.6, so the lump sum is $61,620. However, to that must be added $25 per hour for 13 hours per week for the remaining 18 weeks of 2020 i.e. $5,850. The total of those two sums is $67,470. Adding a buffer to that, it appears to me that, using this scenario, an allowance of $100,000 ought be made.
Approaching the case using this scenario or approaching it the other way, i.e. discounting $204,828 further than $150,000; I allow the plaintiff $100,000 for future economic loss.

D. Future loss of superannuation

I allow 13% of $100,000 for this, i.e. $13,000.

E. Future attendant care services

The plaintiff claims commercial attendant services for 3 hours per week at $40 per hour until reaching the age of 75, the multiplier is 893.6. This produces a lump sum, after a 15% reduction for vicissitudes, of $91,147.20.
There is no claim for past attendant care, either commercial or gratuitous. The plaintiff does not need personal care. The care sought is for the plaintiff’s residence, for the heavier aspects of housework, gardening and home maintenance. At the current time this is being done by Anna, the plaintiff’s wife. On 6 December 2017, Dr Hawi expressed this view:

“I believe that Carlo would benefit from 2 hours of domestic assistance per week in order to compensate for his current functional inadequacies.”

Dr Hawi’s qualification are as a general practitioner, a “Dch” (? Doctor of Chiropracty?) and training as an Assessor of Permanent impairment. His qualifications do not tell me how he is entitled to make this assessment. It appears to be a bare ipse dixit. Dr Powell, whom I have accepted, did not believe that the plaintiff required personal or domestic assistance. Dr Conrad has not addressed the issue. True it is that Ms Pollakowski would like to have paid domestic assistance, and, no doubt, so would the plaintiff, but so would most householders in this country. Because of a lack of expert opinion, I am unable to allow this claim.

F. Past Treatment Expenses

These have been agreed to be $2,487.25 (T239.04).

G. Future Treatment Expenses

The plaintiff claims a buffer of $20,000. The doctors have provided some reccomendations and cost estimates. The need for investigations is obvious. Dr Hawi tells me that the cost (as at December 2017) of MRI scans of the cervical and lumbar spines and of each shoulder was $2,800. He also recommended assessment and review by an orthopaedic surgeon at a total cost of $1,100. In view of all the evidence, the plaintiff should be assessed by both an orthopaedic surgeon and a neurologist and, depending on the findings, be reviewed by one of them. On the sums provided by Dr Hawi that would be $350 x 2 and $250 x 3, amounting to $1,450. He also recommended 6 consultations with a general practitioner at a cost of $79 each. He also recommended 24 sessions of physiotherapy at $95 each, i.e. $2,280. He also recommended a “work related strengthening programme” costing $3,000. Dr Powell recommended physiotherapy, as did Dr Conrad. If I read Dr Conrad’s report correctly, he suggests that a course of physiotherapy would costs $2,500 per annum. Dr Conrad also recommended MRI Scanning.
Doing the best I can, and adjusting fees for inflation, I would allow:

MRI Scans of the cervical and lumbar spines and each shoulder: $3,000

assessment by each of the orthopaedic surgeon and a neurologist: $800

three reviews by one specialist: $900

16 consultations with a general practitioner over 4 years @ $85 each: $1,360

24 physiotherapy sessions, 6 sessions each on 4 separate occasions at $100 each: $2,400

strengthening programme, unnecessary in light of (e): $0

medication - $100 per month for 4 years: $4,800

travelling expenses for treatment, say: $1,000

Total: $14,260

I round the sum up to $15,000.

H. Total damages

The sum of the allowances I have made is:

A. $41,483.00

B. $4,013.00

C. $100,000.00

D. $13,000.000

E. $0.00

F. $2,487.25

G. $15,000.00

Total: $175,983.25

Orders

I give verdict and judgment for the plaintiff against the defendant for $175,983.25.
I order the defendant to pay the plaintiff’s costs.
If either party seeks a different costs order, or any other order, that party is to communicate, firstly, with the other party and, secondly, with my Associate by email within 5 working days, and my Associate will arrange a listing as soon as possible before me for argument.

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Decision last updated: 21 August 2020

Medium Neutral Citation:	Formosa v Callas [2020] NSWDC 470
Hearing dates:	12-14 February 2020
Date of orders:	21 August 2020
Decision date:	21 August 2020
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Verdict and judgment for the plaintiff against the defendant for $175,983.25.
Catchwords:	Motor Vehicle Law – Motor Accidents Compensation – Liability for motor accident in issue – Contest between oral evidence of plaintiff and of defendant – Damages – Plaintiff’s medical condition inadequately investigated – No proper prognosis – Various difficulties in assessing damages.
Legislation Cited:	Motor Accidents Compensation Act 1999
Category:	Principal judgment
Parties:	Carlo Formosa – Plaintiff Sofia Callas - Defendant
Representation:	Counsel: W.M. Fitzsimmons SC and T. Meakes – Plaintiff M. Nesbeth – Defendant Solicitors: Paramount Lawyers – Plaintiff McCabe Curwood Lawyers - Defendant
File Number(s):	2018/00220781
Publication restriction:	Nil.