Gard v Allianz Australia Insurance Limited - [2019] NSWDC 254

District Court

New South Wales

Medium Neutral Citation: Gard v Allianz Australia Insurance Limited [2019] NSWDC 254
Hearing dates: 15 – 18 April 2019, 16 May 2019
Date of orders: 07 June 2019
Decision date: 07 June 2019
Jurisdiction: Civil
Before: Judge Weber SC
Decision:
(1) Verdict and Judgment for the Defendant
(2) The Plaintiff is to pay the Defendant’s costs
Catchwords:
TORTS – Negligence – Road accident cases - cyclist collision with rear of motor vehicle - liability dispute - where cyclist looked down to check gears - whether motor vehicle was reversing or moving forward - whether driver breached duty by failing to check rear-view mirror and abort manoeuvre - where factual causation not satisfied.
DAMAGES - where plaintiff suffered traumatic brain injury - non-economic loss - where plaintiff led intellectually active life - economic loss - whether plaintiff would have attained rank of Professor - plaintiff's likely retirement age – plaintiff’s residual earning capacity - whether plaintiff will achieve continued university employment - where Fox v Wood damages agreed
Legislation Cited: Civil Liability Act 2002 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Motor Accidents Compensation (Determination of Loss) Order 2009 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Browne v Dunn (1893) 6 R 67
Cook v Cook [1986] HCA 73; 162 CLR 376
Dennis v Keep [2002] NSWCA 227
Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Fox v Wood (1981) 148 CLR 438
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hamshere v Favelle [2009] NSWCA 4
Hawthorne v Hillcoat [2008] NSWCA 340; (2008) 51 MVR 523
Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199
Kallouf v Middis [2008] NSWCA 61
Killick v R (1981) 147 CLR 565
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Mamo v Surace [2014] NSWCA 58
Marien v Gardiner [2013] NSWCA 396
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268
Nevin v B & R Enclosures [2004] NSWCA 339
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360
Shirt v Wyong Shire Council [1978] 1 NSWLR 631
Shoalhaven City Council v Pender [2013] NSWCA 210
Strong v Woolworths [2012] HCA 5; 246 CLR 182
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wallace v Kam [2013] HCA 19; 250 CLR 375
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25
Zurich Australia Insurance Ltd v Roumanos [2013] NSWSC 1922
Category: Principal judgment
Parties: Michael Gard (Plaintiff)
Allianz Australia Insurance Limited (Defendant)
Representation:
Counsel:
Mr P Blacket SC; Mr J Wilson (Plaintiff)
Mr K Rewell SC (Defendant)
Solicitors:
Stacks Law Firm (Plaintiff)
McInnes Wilson Lawyers (Defendant)

File Number(s): 2017/00294709-001
Publication restriction: None

Judgment

Introduction

On Boxing Day 2015, the plaintiff was injured when the bicycle upon which he was riding, collided with the rear of a Mitsubishi motor vehicle. The accident occurred in Yamba. The collision was, in many ways, uneventful. The speeds involved were not great, and the damage to the motor vehicle and the plaintiff’s bicycle were relatively minor. Unfortunately, the consequences for the plaintiff, were severe.
The plaintiff has commenced proceedings for damages, and as such the proceedings fall to be determined according to the provisions of both the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”) and the Civil Liability Act 2002 (NSW) (“CLA”).

The Plaintiff

The plaintiff is a 54-year-old man. He attended high school in Sydney and completed his Higher School Certificate in 1982. After leaving school, he initially worked at a bank, performing data processing/computer style tasks. He remained employed at the bank for approximately six years. In 1989, he enrolled in a Bachelor’s degree in Physical Education, which he completed in 1991.
In 1993, he commenced as a Physical Education teacher at a high school in Mount Druitt.
In 1994, the plaintiff completed a Master’s degree in Sports Science at the University of New South Wales. While studying for his Masters degree, he also performed roles as an aerobics instructor, and as a lecturer at the Australian College of Physical Education. Both of these activities were undertaken on a part-time basis.
In 1996, the plaintiff was employed at Charles Sturt University, employed initially as an Associate Lecturer. He later became Senior Lecturer and ultimately was appointed an Associate Professor in the Personal Development, Health and Physical Education Department of the University.
In 2002, he completed a Doctorate of Philosophy focusing on exercise based sociology. The plaintiff was awarded his PhD from the University of Wollongong for his thesis entitled “A Study of Men who Dance”. The thesis was ultimately published as a book.
In the period of 2005 to 2010, the plaintiff worked in Canada.
In 2010, the plaintiff returned to Australia and moved to Bangalow to assist his ageing parents. He was able to do this while maintaining employment at Charles Sturt University on a 40% loading, which is to say that he was undertaking 40% of the workload of a full-time academic.
In 2011, he resigned his employment with Charles Sturt University and worked for approximately 1 and ¼ years at Southern Cross University, based in Lismore. He was there employed as a senior lecturer in Education, as well as in other areas of the University’s work.
In the period of 2013 to 2014, the plaintiff remained at Southern Cross University while working on a research fellowship from the Australian Research Council.
In 2015, the plaintiff commenced work as an Associate Professor in the Department of Sports Health & Physical Education at the University of Queensland. At the date of the accident, the plaintiff had been working full-time as an Associate Professor, but was still in a contractually standard period of probation.

The Accident

There is a dispute as to how the collision between Associate Professor Gard’s pushbike and the Mitsubishi motor vehicle occurred. It may be of assistance, however, if I narrate the events leading up to the accident, keeping initially to the facts which are uncontentious, and noting where my recitation of the facts is from contentious evidence.
The plaintiff’s father had retired to Yamba, and in December 2015 Associate Professor Gard was visiting his father over the Christmas vacation period. On Boxing Day, he decided to go for a bicycle ride. He rode his bike from his father’s home in Yamba to Angourie, and then returned to Yamba. At approximately 6.40pm on 26 December 2015, he was returning from Angourie, and riding along Angourie Road to its intersection with Yamba Road. That intersection was governed by a roundabout. The plaintiff approached the roundabout with a view to turning left at it on to Yamba Road, then heading west.
The motor vehicle with which he ultimately collided was a rental car driven by Ms Laura Foltin, who is a German national. In the passenger seat of the hire car, was her father Mr Bernd Foltin. The Foltins were on holiday in Australia. They had rented the motor vehicle in which they were driving at Cairns, and were travelling south, with Sydney as their ultimate destination. They spent the previous night, that is Christmas night, in Noosa.
Late on Boxing Day morning, the Foltins set forth on their journey south. They had no accommodation booked for Boxing Day. They decided to travel to Yamba to stay, for no better reason than that Mr Foltin liked the sound of the name. After arriving in Yamba, they set about looking for accommodation. They drove past up to 10 motels, and in each case were greeted by signage indicating that there was no vacancy (T74.1-2).
The continuing search led them to Yamba Road where they were heading west. Ms Foltin approached the roundabout at the Angourie Road intersection where they slowed, and followed Yamba Road through the roundabout. The plaintiff’s bicycle was some three to four metres to the left as they negotiated the roundabout (T62.10-17). The plaintiff was stationary, waiting to enter the roundabout. Ms Foltin negotiated the roundabout prior to the plaintiff entering it.
Upon exiting the roundabout, the Foltins were confronted with a welcome sight. The Pegasus Motel, some 40 metres further west along Yamba Road, was displaying signage indicating that it had a vacancy. The Foltins’ evidence was that on seeing the vacancy sign, Ms Foltin slowed the vehicle, indicated a left-hand turn into the driveway of the Pegasus Motel, and as that turn was in progress, they heard a noise from the rear of the car (T62.23-63.5, 95.1-15). This, they came to understand was the noise following the collision of the plaintiff’s pushbike with the rear of the rental car.
As I have indicated, the description of what occurred in the seconds immediately prior to the collision is taken from the Foltins’ evidence. The circumstances of the collision are disputed, and I will return to that dispute in more detail.
What is not in dispute, is that the plaintiff was thrown onto the rear of the Mitsubishi hatchback vehicle. In all probability, his head hit the rear window, as he suffered a fracture to the left hand side of his face. He seems to have briefly lost consciousness.
After immediately stopping her car, Ms Foltin went to the plaintiff’s assistance, as did two passers-by. Happily, these passers-by included a nurse and a medical practitioner (T98.32-50). An ambulance was summoned, and the police, responding to the call for the ambulance, also attended on the scene. The plaintiff was assessed by ambulance officers who offered to take him to hospital, but the plaintiff elected to return to his father’s home (T34.19-22). He was conveyed there by the police.

The Consequences of the Accident

At approximately 7pm on the following day, that is to say 27 December, the plaintiff spoke to his partner, Dr Eimear Enright, who had returned to her homeland of Ireland, for the Christmas break. Dr Enright was concerned by her conversation with the plaintiff, as he was getting his words jumbled. She gave evidence that he was having difficulty carrying on the conversation in his normal manner (T56). She reported this to the plaintiff’s sister who was in Sydney, and as a consequence, at approximately 9pm, an ambulance was summoned to Associate Professor Gard’s father’s home, which conveyed him to the Lismore Base Hospital.
The plaintiff presented to Lismore Hospital at 10.44pm that night. Clinical records from the hospital reveal that the plaintiff attended the Emergency Department, showing signs of lethargy, word-finding difficulty and mild cerebral agitation (Ex P2, p29). Despite no obvious injury, a CT of his brain and facial bones confirmed fractures to the left maxillary sinus, inferior orbital wall and lateral wall of the maxillary sinus, zygomatic body and arch.
The following day (28 December) at 1.15pm, the plaintiff was discharged from Lismore Base Hospital and returned to his father’s home. At approximately 8 am the next day (29 December), the plaintiff’s sister attempted to wake him, but had difficulty in doing so. He was observed to be very sleepy and was unresponsive. An ambulance was again summoned, and he was conveyed to Maclean District Hospital, where he was admitted. There, the plaintiff proved increasingly difficult to rouse. He was substantially unresponsive in response to questions posed of him by medical staff (Ex P2, p37). He was discharged from Maclean District Hospital at 12.38pm on that day, and conveyed by ambulance to Grafton Base Hospital.
At 11:52pm, on 29 December, the plaintiff was discharged from Grafton Base Hospital and conveyed by ambulance to Byron Hospital, from where he was further conveyed by ambulance to Gold Coast Hospital at 4:18am on 30 December. He was admitted to Gold Coast Hospital on that same day.
According to the discharge summary from the Gold Coast Hospital, a CT scan of the plaintiff’s brain on 30 December showed complete occlusion of the cervical segment of the left internal carotid artery, with reduced opacification (Ex P2, p45, 93).
The plaintiff was treated with DVT prophylaxis Aspirin and Clopidogrel. He underwent assessment with physiotherapy, occupational therapy, social worker, speech pathology and dietitian (Ex P2).
In summary, as a result of the accident, the plaintiff had suffered fractures to the left side of his face (tripod fracture to the skull), injury to the head, internal carotid artery dissection, and stroke.

Rehabilitation Treatment

On 13 January 2016, the plaintiff was subsequently taken to Princess Alexandra Hospital in Brisbane.
At the Princess Alexandra Hospital, the plaintiff had an extensive period of rehabilitation for some 10 weeks. Initially, he had very severe dysphasia - in fact, he was mute, unable to calculate or read. The dysphasia gradually improved, though it did not completely resolve. By the time of discharge on 10 March 2016, he was able to understand spoken word, provided it was given slowly and deliberately, and he was slowly beginning to read. His calculating ability also improved, and he began to write in a slow fashion.

Summary of Diagnoses

There was no dispute between the parties regarding the plaintiff’s diagnoses, nor indeed any other medical matters. No medical practitioners whose reports were relied upon were required for cross-examination.
Dr Paul Darveniza, a neurologist, in his report dated 24 January 2018, opined that (Ex P2, p3):

According to the Motor Accident Authority Permanent Impairment Guidelines (1 October 2007) utilising AMA IV the major whole person impairment relates to aphasia/dysphasia.
Utilising the above, in my opinion there is —
1. A 35% whole person impairment related to aphasia/dysphasia (AMA IV, Chapter 4, Page 141, Table 1, he has an inability to comprehend language symbols, production of unintelligible, inappropriate language for daily activities with a range at 25-39% and in my view he is at the 35% level).

In relation to the plaintiff’s mental health, Dr Martin Allan, a consultant psychiatrist, in his report dated 23 January 2018 (Ex P2, p4), diagnosed the plaintiff as having an adjustment disorder and neurocognitive disorder due to traumatic brain injury, with post-traumatic amnesia, disorientation and confusion.
Dr Allan also noted the plaintiff’s social decline, his affected sense of self, and his situational anxiety as “significant and chronic changes”. He outlined that the plaintiff has “clear cognitive deficits,” as well as “ongoing stress, mood disturbance, concentration difficulties and social isolation” (Ex P2, p9).
Dr Allan provided a Whole Person Impairment of 6% in relation to the plaintiff’s mental health, and stated as follows (Ex P2, p8):

From a DSM perspective, he has both an Adjustment Disorder and what is referred to as a neurocognitive disorder due to a traumatic brain injury.
The Plaintiff has an Adjustment Disorder and a neurocognitive disorder due to a traumatic brain injury.

Dr Angelo Virgona, a consultant psychiatrist, in his report dated 11 October 2018, recorded his opinion that (Ex D1, p15):

…the [plaintiff] is suffering symptoms consistent with a mild Adjustment Disorder with Anxiety. He also suffers a Neurocognitive Disorder.

The Plaintiff’s Ongoing Deficits

Physically, the plaintiff’s face has changed since the accident, and his upper lip droops periodically. The plaintiff has difficulties with speech, communication, comprehension and cognition, and describes a common situation in which he is “looking for words but can’t say them”. His reading and writing is limited, and he finds conversational speech difficult, particularly in a large group. The plaintiff continues to struggle with recalling names and numbers, and has been unable to write a research paper.
The plaintiff experiences difficulty with everyday tasks, and he has reduced strength and coordination in his right side. He has ongoing psychological symptoms, and increased levels of fatigue. The plaintiff gave evidence that he has developed a phobia of flying (indeed, he drove to Sydney from Brisbane for the proceedings). He does not like crowds or loud noises (T140, 146).
Prior to the accident, the plaintiff was a competent guitarist and singer, so competent that he regularly played in public. The plaintiff has suffered a diminution in his musical abilities following the accident, and he has had to re-learn the guitar. He now has difficulty with singing, including with lyrics and key changes. He gave evidence that he was “less social” and that his personality has changed (T146.47-49).
The plaintiff is riding his bicycle again, but only in a rural setting. He is now driving, including to work.
The plaintiff is a lifetime participant in the Lifetime Care & Support Scheme which provides regular ongoing speech therapy and music therapy.
The plaintiff has been left with significant receptive and expressive dysphasia. He experiences difficulty understanding and using spoken word, gestures, and written communication; concentrating and remembering information; and controlling automatic language. Finding the appropriate words for speech and writing, and recognising specific sounds, are common difficulties.
The plaintiff’s speech and language function level is impaired across a number of metrics. His comprehension of information, expression, and sentence construction is impaired, and he experiences verbal planning and word finding difficulties. The plaintiff’s reading and processing of written material is slow, and deteriorates as the length, complexity and abstraction of material increases. He also shows signs of auditory memory deficits.
Dr Martin Allan, a consultant psychiatrist, in his report dated 23 January 2018, expressed the view that (Ex P2, p8):

It is my strong opinion that while there is a chronic level of impairment in this case, the Psychiatric Impairment Rating Scale does not do justice to highlight the fact that his neurocognitive changes are significant and chronic, and were it not for an apparently high level of baseline function, he would be in a much worse state than he currently is.

Professor Ian Cameron, a consultant physician in rehabilitation medicine, opined in his report dated 14 October 2018 (Ex D1, p4):

The injuries that Mr Gard has sustained have had a profound effect on Mr Gard’s daily life. His abilities at work and in daily life including recreational activities have been severely affected. It is very pleasing that he has been able to return to part-time work but his work capacity is significantly reduced.

The plaintiff submitted that an analysis and interpretation of the medical reports indicates that, for the foreseeable future, the plaintiff should avoid tasks that involve sustained periods of concentration, attention and participation, particularly where frequent rest breaks are not possible; crowded, busy or noisy environments; forced public speaking (which contributes to high anxiety); and environments which require time-sensitive responses to auditory information.
I accept that this is the case.

The Plaintiff’s Prognosis

The prognosis provided by Dr Paul Darveniza, a neurologist, in his report dated 24 January 2018 (Ex P2, p1), suggested the plaintiff would continue to experience restrictions with aphasia, dysphasia, comprehension and writing. Dr Darveniza was of the opinion that the plaintiff is unlikely to improve any further and that his current disabilities may be considered stable and permanent (Ex P2, p2).

The plaintiff submits that he has reached a maximum level of recovery.

The Liability Dispute

As I have earlier indicated, the parties are in dispute concerning the circumstances which led to the accident, and the legal consequences which flow from those circumstances.
The plaintiff’s pleaded case on liability is a twofold one. The first pleaded case is that the plaintiff struck the Mitsubishi vehicle driven by Ms Foltin as it was reversing out of the driveway of the Pegasus Motel. This scenario has the vehicle travelling from left to right from the cyclist’s perspective (the “Reversing Scenario”). The alternate scenario is that Ms Foltin was driving her vehicle forward and turned across the path of the plaintiff’s bicycle. This alternate scenario can be expressed as saying that Ms Foltin turned negligently into the Pegasus Motel, “cutting off” the plaintiff cyclist and causing him to collide with the rear of the vehicle (the “Forward Scenario”). This scenario has the vehicle travelling right to left from the cyclist’s perspective at the time of collision.
The plaintiff’s case is that the collision was inevitable as the driver did not give the cyclist sufficient time to take evasive action.
The plaintiff qualified Mr William Keramidas, an expert in traffic and transport engineering. Mr Keramidas provided a series of reports as to how he believed the accident may have occurred, and attended Court to hear the evidence of the plaintiff and the Foltins. This led him to prepare a final report dated 17 April 2019 based on that evidence (Ex P7).

The Reversing Scenario

The Reversing Scenario is totally at odds with the evidence of the Foltins, and in my view, totally at odds with the objective facts. The Foltins were intending to enter the driveway of the Pegasus Motel in order to enquire as to the availability of accommodation. Following the aftermath of the accident, that is what they did - they continued to drive into the Pegasus Motel, and ultimately booked there and stayed the night (T83.11-19). These objective facts lead me to unhesitatingly accept their evidence as to the fact that they were not reversing the vehicle when the collision occurred. For them to have been reversing the vehicle in the circumstances where they had yet to make any enquiry about accommodation, in the circumstances would be contrary to common sense.
I should also add that I found the Foltins’ evidence to be given in a calm and considered manner, and have no doubt that I can rely on them as witnesses of truth.
The plaintiff’s recollection of the accident, on the other hand, was poor. While, in all probability, he lost consciousness shortly after his head impacted on the rear of the vehicle, he does not claim to have no recollection of what occurred. He told Mr Keramidas, however, that his view that Ms Foltin was reversing out of the motel driveway was simply his “impression” (Ex P2, p430). Mr Keramidas gave evidence that these were Associate Professor Gard’s actual words (T229.20-43). It became clear to me that the plaintiff in fact had no recollection of the seconds immediately preceding the collision.
The defendant submits that the fact that the plaintiff was unable to be determinative as to how the accident occurred, and more significantly was unable to be certain as to such a fundamental matter as the direction in which the Foltins’ vehicle was travelling, is indicative of the fact that he saw the Foltins’ vehicle so late, that he could not take action to avoid the accident. I agree with this submission.
I also agree with the defendant’s submission that the suggestion that the vehicle reversed in front of the plaintiff, was the product of an understandable desire on the plaintiff’s part to reconstruct the circumstances of an event which had such a profound effect on his life, but about which he had in reality little helpful memory. To put it colloquially, he was, in my opinion, trying to make sense of what had happened to him.
I should also add at this point, that I have no doubt that the plaintiff’s evidence as to the circumstances of the accident was honestly given. His evidence, however, in reality, was as to his belief as to what must have occurred, rather than his actual recollection of what occurred. I find that his belief, while no doubt honestly held, was unlikely to be well founded.
I should also add that Mr Keramidas ultimately rejected the Reversing Scenario as a plausible explanation of the accident (T225.10-19).
It follows that I reject the Reversing Scenario, and turn now to what I believe to be the real area of dispute as to liability, namely the Forward Scenario.

The Forward Scenario – The Plaintiff’s Case

The plaintiff’s case on the Forward Scenario is that Ms Foltin saw the plaintiff’s bicycle on two occasions. The first was when she was traversing the roundabout where the plaintiff was approximately two to four metres from her vehicle at the Angourie Road approach to the roundabout. He was stationary, awaiting an opportunity to enter the roundabout. The second occasion was after Ms Foltin had negotiated the roundabout where she saw the plaintiff through her rear-view mirror, riding approximately three to four metres behind her.
The plaintiff contends that Ms Foltin saw the Pegasus Motel sign at about a halfway point between the exit of the roundabout, and the driveway, that is to say, 20 metres from the roundabout and 20 metres before the driveway. Having seen the vacancy sign, Ms Foltin and her father made a more or less instantaneous group decision to enter the Pegasus Motel. The point at which this decision was made, on the plaintiff’s case, is further than 20 metres from the roundabout, and less than 20 metres from the driveway.
The plaintiff then contends that Ms Foltin commenced to turn less than 20 metres from the Pegasus Motel driveway, where she indicated her intention to turn in that direction.
As to speed, the plaintiff contends that when Ms Foltin was approaching the roundabout, she was travelling at 40km/h; while negotiating the roundabout, 30km/h, and after exiting the roundabout up to the point of observing the Pegasus Motel sign, at about 30km/h. She was still travelling at 30km/h when she agreed with her father that they should enquire at the Pegasus Motel, and was still travelling at 30km/h when she indicated her intention to turn the vehicle. The plaintiff alleges that when Ms Foltin commenced her turn, she was still travelling at 30km/h, and at the point of impact, was travelling at 10 to 15km/h.
The plaintiff contends that:

Ms Foltin did not look at her mirrors at any time after she saw the plaintiff for the second time; and

if she had looked into her rear mirrors, that is either the nearside, offside or centre interior rear-view mirror, she would have seen the plaintiff’s bicycle which was some 7 to 9 metres to her rear.

Crucially, the plaintiff’s case has his position as riding at 1 to 1 ½ metres from the kerb, with the effect that he was travelling to the left and to the rear of the Mitsubishi vehicle at all times. He estimates that his speed after leaving the roundabout was between 15 and 20km/h.
Importantly, the plaintiff gave evidence that after he had negotiated the roundabout, he looked down towards his pedals for the purposes of checking his gears (T39). He says that he did this on only one occasion. He initially told Mr Keramidas that the estimated duration of the gear check was 1 to 2 seconds (Ex P2, p430), but revised this duration to ½ a second to 1 second when he gave oral evidence.

Ms Laura Foltin’s Evidence

Ms Foltin gave evidence that she negotiated the roundabout at a speed of between 10 to 15km/h (T61.5), and saw the plaintiff after she went through the roundabout at approximately four metres behind her (T61.16). She says that she saw the vacancy sign at the Pegasus Motel only two to three metres after negotiating the roundabout (T61.24). Later, she said that she saw the vacancy sign “as I was getting out [of the roundabout]” (T79.34). She maintained her 10 to 15km/h speed (T61.45). She had no reason to increase her speed because, having seen the vacancy sign, she knew that she wished to stop and enter the upcoming motel (T61.27-31).

Mr Bernd Foltin’s Evidence

Mr Foltin said the decision to stop at the vacancy was made virtually simultaneously with seeing the vacancy sign (T105.50). He said that the decision was made “when we saw the vacancy sign” (T105.50-106.1). He also gave evidence that it was his daughter who saw the sign first (T109.37). This is to be expected, given the fact that she was on the right-hand side of the vehicle and therefore had the better line of sight to the vacancy sign.
He estimated his daughter’s speed at the time of making the decision to enquire at the Pegasus Motel, was approximately 30km/h (T109.50). He says after they saw the sign, more than likely his daughter slowed down (T110.1). He assumes that “it was approximately 20 metres from the driveway the decision was made to slow down” (T110.14). Later in his cross-examination, Mr Foltin said that he estimated his daughter was travelling at 20 to 30km/h as she left the roundabout (T111.30), and at the time she made her turn, 10km/hr (T111.37).

Mr Keramidas’ Evidence

As I have previously indicated, Mr Keramidas was in court while the plaintiff and the Foltins gave their evidence. That evidence led him to prepare a further report dated 17 April 2019 (Ex P7). In his earlier reports, Mr Keramidas had indicated that he was puzzled by the position of the plaintiff’s body on the road as shown in the photographs which were taken by Mr Foltin of the accident scene. This had led him to initially favour the Reversing Scenario.
Ms Foltin gave evidence that as soon as she brought the vehicle to a stop following the collision, she alighted from the vehicle, went to the rear of the vehicle, and attempted to “catch” the plaintiff as he fell (T62.22). Mr Keramidas reflected on Ms Foltin’s evidence, and arrived at a theory; namely that the plaintiff was not immediately knocked unconscious by the impact, but rather fell to the ground, attempted to regain his feet, but lost consciousness as he attempted to do so. Mr Keramidas’ conclusion was that what Ms Foltin had seen when she attempted to “catch” the plaintiff, was in fact the plaintiff collapsing as he lost consciousness in his attempt to stand (T219.12-20,219.44-220.3). While this evidence of Mr Keramidas may well be beyond his expertise, it was ultimately accepted by the parties as the most probable explanation of that aspect of the evidence. I am also content to so find, as it seems to me to be the most probable explanation for what occurred.
Mr Keramidas’ hypothesis about the plaintiff falling to the ground before moving to the position where he was ultimately found, had an important impact on an aspect of the matter to which I will later return. For present purposes, it is sufficient to say that in his “Collision Diagram 1” (Ex P3, p545), he had depicted a human figure in green where he had expected to find the plaintiff prone after the accident, and a red human figure as to the actual position where the plaintiff was in fact found. His hypothesis as to what occurred based on Ms Foltin’s evidence, allowed him to conclude that the point of impact was as depicted by the green figure.
Mr Keramidas, in his final report, based his conclusions on the evidence as to speed and distances, on Mr Foltin’s estimates, in preference to those of his daughter (Ex P7, p10). Thus, he prepared his report on the basis that the Mitsubishi vehicle was travelling at 30km/h, but that Ms Foltin slowed to 20km/h when she saw the vacancy sign, and continued to travel 10 km/h when she turned into the driveway.
Mr Keramidas prepared a final “collision diagram” to accompany his final report, which was marked as Exhibit P8. He indicated on that diagram, a vehicle in blue/purple at the point where he believed Ms Foltin saw the vacancy sign. He conceded that she could have seen it earlier. As I previously indicated, Ms Foltin’s evidence was indeed that she had seen the sign earlier than Mr Keramidas’ diagram suggests. Mr Keramidas then allowed for a period of time and distance for the Foltins to agree to turn into the Pegasus Motel. He illustrates the point at which he suggests that decision was made as a red vehicle. The distance between the blue/purple and red vehicles on the collision diagram, he describes as the minimum decision time, though he acknowledged that there was really no decision to make at all.
It must follow that if the blue/purple vehicle is moved backwards towards the roundabout (where Ms Foltin believes that she saw the vacancy sign), the red vehicle moves back too, so that the same distance is kept between them.

The Forward Scenario – The Defendant’s Case

The defendant’s case was that Ms Foltin exited the roundabout at no more than 30km/hr, that the plaintiff exited the roundabout onto Yamba Road about four metres behind Ms Foltin’s vehicle, and that Ms Foltin saw the plaintiff in her rear-view mirror as she left the roundabout. The defendant then alleges that the plaintiff drove around a painted area on Yamba Road, which can be seen just west of the roundabout adjacent to a power pole (see photo Ex P3, p862, and diagrammatically on Ex P8). Riding around the painted road surface took the plaintiff almost three metres from the gutter. The defendant’s case is that the plaintiff continued to ride on this line, that is almost three metres from the gutter, such that he was in a line between the left-hand side of the vehicle’s numberplate and the left tail light.
The defendant next contends that at or shortly after the roundabout exit, Ms Foltin (and within a second, her father) saw the vacancy sign for the Pegasus Motel, at which time Ms Foltin was travelling at 30 km/hr at most; and a decision was immediately made to stop to enquire about accommodation. As soon as Ms Foltin made that decision, she activated her left indicator and slowed down to 20km/hr at most. During all of this time, the plaintiff remained unaware of Ms Foltin’s presence ahead of him (T11.29-39, 22.48-23.17, 28.44-50). The defendant alleges that the plaintiff looked down at his gears sometime after the exit from the roundabout, but did not look up again until the instant before the collision. By this time, Ms Foltin had commenced her turn into the driveway at a speed of no more than 10km/hr.
The defendant contends that that turn was gradual and that Ms Foltin probably looked to her left hand external mirror before she turned, but that the plaintiff was not to be seen in that mirror as he was directly behind her vehicle.

The Court’s Findings on Liability

The central factual issues on liability which need to be resolved are:

Where was Ms Foltin when she first saw the vacancy sign?

Where was the plaintiff riding in relation to the kerb?

First Sight of the Vacancy Sign

The evidence of the Foltins as to the estimated distances and speeds concerned are self-evidently capable of being honestly mistaken. The fact they did not perfectly align on such matters as speed is to be expected. The events immediately preceding the accident were, at the time at which they occurred, entirely uneventful. Being asked to give sworn evidence about the detail of them in proceedings in a foreign country, more than four years after the event, places a significant burden on the witnesses’ memory, and more particularly on their estimates of speed and distance.
That said, to the extent to which there are differences between their evidence, I prefer the evidence of Ms Foltin. As to her assertion that the she saw the vacancy sign virtually as soon as she negotiated the roundabout (T61.23-24, 79.31-43), this seems to me to be likely. The sign was visible at that point, and the search for accommodation was at the forefront of Ms Foltin’s mind, suggesting that she would have seen it at the earliest possible moment. In addition, from the right hand side of the vehicle where she was seated, Ms Foltin would have been more likely to have seen the vacancy sign before her father, who was in the passenger seat, and whose vision of the sign may well have been initially, to some extent, obscured by trees and shrubbery. This also accords with Mr Foltin’s evidence that his daughter saw the sign first (T109.35-37).
As to Ms Foltin’s estimate of speed, I believe that as a matter of everyday experience, a driver is more likely to have a more accurate estimate of the speed at which they were driving, than a passenger. Moreover, having found, as I have, that Ms Foltin saw the vacancy sign virtually as soon as she had negotiated the roundabout, it is entirely unlikely that she would have accelerated once she had seen the sign, as the driveway to the Pegasus Motel was only some 40 metres away to the west.
I am, of course, not obliged to accept either witness’ estimates, but having a general preference for the driver’s estimate, I consider that it was likely that at the time of indicating the decision to exit the roundabout, the Foltins’ vehicle was travelling at approximately 20 km/hr. That is to say, slightly faster than Ms Foltin’s maximum speed estimate, and at the lower end of Mr Foltin’s range. I find that the Foltins’ vehicle was travelling at 20 km/hr when Ms Foltin saw the vacancy sign and decided to turn into the Pegasus Motel driveway, and further that she activated her indicator virtually immediately. It follows from this that I have the blue/purple car and the red car in Mr Keramidas’ collision diagram (Ex P8) further back towards the roundabout (i.e., to the east) than as depicted on his diagram. I would also conclude that the decision time, if it were to be depicted in the diagram, would be less than that postulated by Mr Keramidas.

The Plaintiff’s Distance from the Kerb

The plaintiff’s assertion that he was riding at 1 to 1 ½ metres from the kerb, is solely based on the fact that such a riding position was his usual practice (T10.42-44,27.31-34). He had no actual recollection of where he actually was riding in relation to the gutter at the crucially relevant time (T27.36-45).
I believe the objective evidence does not support the plaintiff’s evidence that he was riding 1 to 1 ½ metres from the kerb. Rather, it supports the defendant’s contention that the plaintiff was in fact approximately 3 metres from the kerb. The position of Ms Foltin’s vehicle as photographed when she had come to a halt after the collision, together, with Mr Keramidas’ diagrammatic analysis of the point of impact (P3, p545), lead me to this conclusion.
Photograph 3 to Mr Keramidas’ report of 9 April 2019 (Ex P3, p532) shows Ms Foltin’s vehicle where she brought it to a halt, immediately following the collision. The photo was taken by Mr Foltin. This photo clearly shows that the impact must have occurred more than 1.1 to 1.5 metres from the kerb. Mr Keramidas was taken in cross-examination to that photo and photo 6 (Ex P3, p534) which shows the damage to Ms Foltin’s vehicle. Mr Keramidas gave evidence that the “area of impact” using the actual angle of the vehicle in its final position, suggested that the impact occurred 3 metres from the gutter (T233.39 – 233.50). This evidence was adduced by reference to Mr Keramidas’ “Collision Diagram 1” (Ex P3, p545). Mr Keramidas accepted that the likely position of the plaintiff, was behind the vehicle, not to its left, and thus visible from the central rear-view mirror (T234.1 - 234.25).

The Plaintiff’s Attack on the 3 Metres from the Kerb Submission

The plaintiff contends that the submission that he was riding up to 3 metres from the kerb, is not available to the defendant. This is said to arise by application of the rule in Browne v Dunn, namely the failure to put the proposition to either the plaintiff or Mr Keramidas. The plaintiff draws attention to his cross-examination at T27:

Q.    On that day.
A.    I mean, my recollection is to - is to stay close to the gutter. I don't know - I - for example, I don't know how - how long - large the stripes were on the road.
Q.    Your ordinary habit was to ride about a metre out from the gutter, correct. But at this particular corner, you were at least, initially, forced out a bit wider by the painted area. Is that correct?
A.    That's right.
Q.    And you might have stayed out a bit wider after you went around the painted area, might not you?
A.    On that day?
Q.    On that day.
A.    So you're asking me on that day or in general?
Q.    On that day, you may have stayed out a bit wider, may not you? You just don’t remember.
A.    I don't know.

It was suggested by the plaintiff that the question as to “a bit wider” amounts to a cross-examiner insufficiently putting to the witness the suggestion that a submission ultimately may be made that he was riding up to 3 metres from the kerb. I do not accept this submission.
The Browne v Dunn obligation is to put “the nature of the case upon which it is proposed to rely in contradiction of his evidence” to the witness: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16, per Hunt J (emphasis added). It is founded on the need to give the witness an opportunity to deal with the contrary case (Allied Pastoral at 22-23). In my view, the cross-examination of the plaintiff gave him adequate notice of the nature of the case which he had to meet, and an opportunity to meet it. The fact is that the plaintiff could not in fact remember where he was riding, as the transcript passage above shows. The plaintiff had more than adequate opportunity to rebut the cross-examiner’s suggestion, if he was capable of doing so.
I should also add that in my view, Mr Rewell SC also complied with Browne v Dunn when he put it to the plaintiff that he “just went straight into the back of the car” (T43.49-50).
I also reject the suggestion that Mr Rewell SC failed to put to Mr Keramidas, the three metre scenario. At T233, Mr Keramidas was cross-examined as follows:

Q:   You noted the actual rest position of the Plaintiff on the road. You took that from the photographs. And that’s the red human figure?
A:    Correct, yes.
Q:   You’ve already told us that you were a little concerned, if I could put it that way, about that position because you thought it was the wrong position anyway?
A:   Yes.
Q:   But what you did was you extrapolated backwards to a point of impact where you saw an expected rest position?
A:   Correct.
Q:   That’s the green human figure?
A:   Yes.
Q:   And you showed the bicycle right next to the green human figure, but pointing straight down three road?
A:    Yes.
Q:   And am I correct in saying that you then measured or scaled the distance from the gutter and calculated it to be three metres?
A:   Correct.
Q:   So is it reasonable to infer from combining all of those contributions of your own that most likely, assuming that there was no time for the cyclist to steer once he saw the vehicle—
A:   Yes.
Q:   --he was riding not one metre from the gutter but three?
A:   Correct.

While the rule in Browne v Dunn applies to expert witnesses (Killick v R (1981) 147 CLR 565), it seems to me that it has no application in the present circumstances. The cross-examiner had nothing contrary to the expert’s opinion to put to him. The cross-examiner and the witness were in agreement on the point.
In my view, the cross-examiner adequately put to the plaintiff the proposition that he may have been riding further from the kerb than was his usual practice, to which proposition the plaintiff was unable to express a view. In cross-examination, the expert quantified the likely distance from the kerb being ridden by the plaintiff. I also note that the cross-examination of Mr Keramidas was not the subject of objection on the basis that the underlying proposition as to the rider’s position on the roadway, had not been put to the plaintiff.
Finally, in relation to the plaintiff’s position at the point of impact, the plaintiff suggests that he may have attempted to steer to the right at the last moment before the impact. As I understood it, this was designed to meet the proposition that the point of impact was much more than the 1 to 2 metres from the kerb. I do not accept this evidence.
To my mind, the evidence is inconsistent with the proposition that the collision occurred so suddenly, from the plaintiff’s perspective, that he could not recall the direction of movement of Ms Foltin’s vehicle. If the plaintiff could not be definitive about that basic fact, I cannot accept that he could remember the nature of any evasive action which he took. It is also inconsistent with his evidence that he never saw the Foltins’ car in front of him. It is also inconsistent with the plaintiff’s evidence when he agreed with the proposition that “the vehicle was so close when you looked up, that you couldn’t do anything at all, could you?” (T43.26-29) and his agreement that it was correct to say that “when you looked up, the car you saw was so close that you didn’t have time to react in any way at all” (T43.11-14).

Factual Findings in relation to Liability

I find that:

Ms Foltin made her decision to turn into the Pegasus Motel almost immediately after negotiating the roundabout.

She indicated her intention to turn virtually simultaneously with that decision.

She was at that stage travelling at 20km/h.

She did not accelerate thereafter.

She saw the plaintiff in her rear-view mirror some 3 to 4 metres behind her after she had passed through the roundabout (T88.19-21).

This occurred approximately 20 metres from the Pegasus Motel driveway (T88.29-30).

She slowed to approximately 10km/h at the time of commencing her turn.

The plaintiff was riding approximately 3 metres from the gutter.

The plaintiff had come to that position on the road having done so in order to ride around the painted section on the road adjacent to the power pole. Adopting the distance scale in Ex P8, this placed the plaintiff in excess of 2 metres from the kerb.

While he was still in that position (that is, approximately three metres from the gutter), he looked down to check his gears.

That process took greater than the 1 to 1 ½ seconds which he estimated, or if not, was part of a series of downward glances which together took considerably more than 1 to ½ seconds.

By the time the plaintiff had looked up again, he had no time to act or avoid the now inevitable collision.

The plaintiff was comfortable in his belief that he could recommence looking forward at his relative leisure, as he was unaware that the Foltins’ vehicle was in front of him (T11.29-39, 22.48-23.17, 28.44-50, 48.34, 49.18-21).

Legal Principles in relation to Liability

I did not apprehend that there was any dispute between the parties in respect to the legal principles which govern the question of liability, being as they are, an admixture of common law principles and the provisions of the CLA.

Duty of Care

The principles concerning the duty of the driver of a motor vehicle to other road users, and those pertaining to breach of duty by reference to section 5B of the CLA, were summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner [2013] NSWCA 396 as follows:

[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.

The standard of reasonable care required of drivers is a high standard, but it is not a standard measured by success or perfection assessed with the wisdom of hindsight; Hawthorne v Hillcoat [2008] NSWCA 340; (2008) 51 MVR 523 at [47]:

[47] ….The standard in respect of the position a driver should be in so as to be able to take reasonable steps to react to events is itself a standard of reasonable skill and care; and although the standard of reasonable skill and care required of drivers is a high standard (because cars are so dangerous, and can so easily cause serious injuries), it is not a standard measured by success or perfection assessed with the wisdom of hindsight.

The CLA governs questions of breach of duty and causation, leaving the question of the identification and scope of the duty as matters to be determined according to common law principles (Mamo v Surace [2014] NSWCA 58 at [48]). In this respect, the heading "Duty of care" in Division 2 in which section 5B and section 5C appear, is "apt to mislead": Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, at [13].
Under the common law and the CLA, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; section 5B.

Breach of Duty

The question as to whether there has been a breach of duty of care is not to be addressed by asking whether different conduct on the part of those involved would have produced a different result, but rather whether the plaintiff has proved the defendant has not acted in accordance with a duty to take reasonable care: Hamshere v Favelle [2009] NSWCA 4 at [21] referring to Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13]; and also see Dennis v Keep [2002] NSWCA 227 at [18].
Ms Foltin’s breach, as alleged by the plaintiff in the Forward Scenario, is her failure to look in to her nearside or central rear-view mirror prior to commencing to turn into the Pegasus Motel.
The plaintiff’s case was summarised in brief terms in his written submissions as follows:

If Ms Foltin had looked in her mirrors (the breach of duty),

she would have seen the cyclist, and

she should have done nothing. In other words, Ms Foltin should have just continued on and driven past the Pegasus Motel.

Ms Foltin should not have:

Slowed down. This is explained on the basis that, if Ms Foltin had done nothing, there would have been no collision because she was travelling faster than the cyclist. Irrespective of where the cyclist was on the road, either in the centre three metres from the kerb or not, it would have been impossible for there to be a collision.

Moved to the left. This was similarly explained on the basis that, if Ms Foltin had done nothing, this would have meant that the cyclist would have passed her on the left.

These submissions were advanced in relation to the scenario of the plaintiff riding three metres out from the kerb, in addition to the principal case that placed the plaintiff at 1-1 ½ metres from the kerb (see plaintiff’s written submissions at [294]).

The relevant risk of harm

The plaintiff submits that the risk of harm in the present situation is the risk of a cyclist, travelling on the nearside, and to the rear, of the vehicle, colliding with the rear of the vehicle in circumstances where the vehicle slows down and / or moves to the left on the roadway to travel into a driveway. I did not understand the defendant to demur from this formulation, though as I have indicated, it did place in question the assumption as to where the plaintiff was riding in relation to the kerb.
Identification of the relevant risk of harm is essential to consideration of what, if any, action was required of the defendant to discharge its duty of care. Gummow J said in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59]:

It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be.

In Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, Mason J (as His Honour then was), recognised that identification of the relevant risk is a prerequisite to evaluating the factors, now enacted in section 5B of the CLA, that bear upon what precautions a defendant may be required to take in order to discharge a duty of care:

[14] In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the Defendant's position would have foreseen that his conduct involved a risk of injury to the Plaintiff or to a class of persons including the Plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the Defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the Defendant's position.

The question of whether there existed a duty of care and, if so, whether it was breached, have to be determined prospectively: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [126] ff, per Hayne J; applied in Adeels Palace at [31]. Thus, the Court does not focus exclusively upon the particular way in which the accident that has happened came about, as to do so may tend to obscure the nature of the questions presented in connection with the inquiry into breach of duty: Vairy at [124] per Hayne J; approved in New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486, at [58] per Gummow and Hayne JJ.

Section 5B(1) of the CLA

Section 5B(1) of the CLA sets out three preconditions that must co-exist to establish breach of duty. The effect of section 5B(1) is that the defendant is not negligent in failing to take precautions against a risk of harm, unless:

the risk was one of which he knew or ought to have known; and

the risk was not insignificant; and

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

I turn to consider these pre-conditions.

Foreseeability of risk

The plaintiff submits that the risk of the plaintiff cyclist colliding with the rear of Ms Foltin’s slowing and turning vehicle, was a risk which Ms Foltin knew or ought to have known, as being foreseeable to a reasonable driver in those circumstances. Again, I did not understand the defendant to demur from this proposition.

Risk not insignificant

It was not suggested by any party that the risk was insignificant (section 5B(1)(b) of the CLA).

Whether a reasonable person would have taken precautions

Section 5B(1)(c) invokes the notion of foreseeability as relevant to breach of duty of care. However, as discussed, reasonable foreseeability of the class of injury that the plaintiff suffered is also an essential condition to the existence of the duty to take care for the benefit of another.
The nature of the foreseeability inquiry differs depending upon the stage at which it is being considered: Shoalhaven City Council v Pender [2013] NSWCA 210, at [58] per McColl JA (Barrett JA agreeing).
The inquiry at the duty of care stage, addresses the foreseeability of harm resulting to the plaintiff from the conduct of the defendant, considered "quite generally" (Shirt v Wyong Shire Council [1978] 1 NSWLR 631, at 639 – 640, per Glass JA).
The inquiry as to foreseeability at the breach stage, "involves identifying, with some precision, what a reasonable person in the position of the Defendant would do by way of response to the reasonably foreseeable risk": Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, at [192] per Gummow and Hayne JJ; see also Vairy, at [70] - [73] per Gummow J; Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268, at 295 per Glass JA.

Section 5B(2) of the CLA

Section 5B(2) provides a non-exhaustive list of factors the Court is required to take into account in deciding whether the section 5B(1)(c) preconditions exists: Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360, at [173] per Campbell JA (McColl JA agreeing); see also at [443] per Sackville AJA.
I shall turn briefly to those matters.
Pursuant to section 5B(2), in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

5B(2)(a) the probability that the harm would occur if care were not taken,

The plaintiff submits that Ms Foltin did not look in her mirror at the relevant time. This time is said to be after deciding to begin to turn left to the driveway, and before acting on that decision. The plaintiff contends that unless she did look in her mirror at that time, she would not see the cyclist, and if care was not taken, then there was a high probability that a collision would occur if she slowed down and continued to move to the left. It was further contended that there was a high probability that it would result in the cyclist colliding with the rear of her vehicle and sustaining serious bodily injuries.

5B(2)(b) the likely seriousness of the harm,

There was no suggestion by any party other than that the effect of a cyclist impacting the rear of a motor vehicle is likely to cause serious bodily injury.

5B(2)(c) the burden of taking precautions to avoid the risk of harm,

Section 5B(2)(c) requires the Court to consider “the burden of taking precautions to avoid the risk of harm”. In undertaking that task, the court must consider the burden of taking precautions to avoid similar risks of harm for which the defendant may be responsible: section 5C(a). There was no suggestion that this subsection of section 5B(2) had application.

5B(2)(d) the social utility of the activity that creates the risk of harm.

Section 5B(2)(d) requires that the Court assessing the relevant precautions have regard to the “social utility” of the activity that creates the risk of harm.
Again, no party suggested that this subsection was relevant to the facts in issue.

Causation

There was no dispute between the parties as to the legal principles governing the question of causation, although there was a dispute as to the application of those principles to the facts. The plaintiff summarises the legal principles in the following manner, which I adopt:

The determination of “factual causation” in accordance with s 5D(1)(a) of the Civil Liability Act “is entirely factual, turning on proof by the Plaintiff of relevant facts on the balance of probabilities in accordance with s 5E”: Wallace v Kam [2013] HCA 19; 250 CLR 375 (Wallace v Kam) at [14].
It involves nothing more or less than the application of a “but for” test of causation: Wallace v Kam at [16].
In Strong v Woolworths [2012] HCA 5; 246 CLR 182 at [32], the plurality said that “proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred.”
The enquiry into the causes of an accident is wholly retrospective, unlike the issues of duty of care and breach which are forward looking: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [124] (Hayne J); Wallace v Kam at [26].
Section 5D(1)(a) applies a "but for" test in relation to causation: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 429 at [42]-[45]; Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [18].

The plaintiff contended that:

But for the Defendant Driver’s failure to keep a proper lookout and look in her mirrors, the collision would not have occurred. To put it the other way, if she had looked in the mirrors prior to her slowing her vehicle and moving the vehicle to the left she would have seen the cyclist and been able to avoid the cyclist.

The question is whether the Defendant Driver’s failure to keep a proper lookout by looking in her mirrors were necessary conditions of the Plaintiff’s harm – in colliding with the rear of her vehicle - in the sense that the harm to the Plaintiff would not have occurred but for the Defendant’s conduct.
The Defendant contends that even if she had looked in her mirrors, and even if she had seen the cyclist, the cyclist would have hit the Defendant’s vehicle because he had insufficient response time to avoid a collision; and she would have been unable to do anything to avoid the accident.

The Defendant’s Case on Liability

The defendant’s case on liability was put in the following manner.
It contended that the plaintiff was riding his bicycle almost three metres from the gutter of Yamba Road. As such, the plaintiff was more or less directly behind Ms Foltin’s vehicle, and not to the left-hand side of the vehicle as the plaintiff would contend.
The defendant goes on to submit that nothing which Ms Foltin did or omitted to do was other than in accordance with her duty to take reasonable care.
It submits that the only thing which the plaintiff alleges that Ms Foltin omitted to do, was to look in her rear-view mirrors before she commenced her turn. The submission proceeded that had she done so, she would have seen the plaintiff behind her, but that the plaintiff would not have been visible in her left external rear-view mirror. As to this, the defendant submitted that while a driver should glance at his or her central rear-view mirror from time to time, Ms Foltin had done this shortly after she exited the roundabout, where she had seen the plaintiff around 4 metres behind her. She had only travelled a very short distance after that, before she commenced her turn. There was thus no need to look again.
As to causation, the defendant submits that there was nothing different that Ms Foltin could or should have done if she had looked in the rear-view mirror at the time said by the plaintiff to be crucial. It submitted that had she done so, and seen the plaintiff again before she commenced her turn, Ms Foltin would have justifiably continued to turn. It points out that Mr Keramidas agreed in cross-examination that Ms Foltin was entitled to expect the plaintiff would ride reasonably behind her vehicle (T235.45-46). The defendant adopts Mr Keramidas’ conclusion that if the plaintiff was riding his bicycle directly behind Ms Foltin’s vehicle, “she hasn’t done anything wrong” (T236.21).
The defendant submits that had Ms Foltin glanced at her rear-view mirror at the time alleged by the plaintiff, there was still no occasion to stop or pause as that would only have made the matter worse. Mr Keramidas agreed with this proposition (T235.47 – 236.02).

Conclusion on Liability

On the factual findings which I have made, I conclude that Ms Foltin did not breach the duty of care which she owed to the plaintiff.
Ms Foltin made her decision to turn into the Pegasus Motel almost immediately after negotiating the roundabout (T61.23-24). She indicated her intention to turn at virtually the same time (T61.26-34). Thus, she had activated her indicator at least 30 metres from the Pegasus Motel driveway. She had her indicator on for five seconds before commencing to turn, which at 20km/hr is a distance of approximately 27 metres. She commenced a turn at approximately 15 metres from the driveway.
She had looked in her rear-view mirror and seen that the plaintiff was some three to four metres behind her (T88.19-21). This occurred at 20 metres from the Pegasus Motel driveway (T88.29-30). She did not check her central rear view mirror again before she heard the collision.
The plaintiff’s case on breach depends on finding that Ms Foltin’s failure to check her rear-view mirror a second time, was a breach of her duty of care. I do not believe this was the case. She had checked her rear-view mirror just a matter of seconds before that moment, and was aware of a cyclist being behind her at a distance of some three to four metres. The cyclist was more or less directly behind her. There was no need to check the rear-view mirror again.
Ms Foltin was entitled to believe the cyclist was aware of her presence, and the fact she had been indicating her intention to turn left for some 20 metres. She was also entitled to believe that the cyclist was aware from her brake lights, that she was slowing. The combination of those two facts more than adequately communicated to the plaintiff what was about to occur.
For the plaintiff to have collided with Ms Foltin’s vehicle in those circumstances can only be attributable to a dangerous failure to pay attention on his part, rather than any breach of duty on the part of Ms Foltin. The failure on the plaintiff to pay attention was in all probability the product of the fact that he was unaware of the presence of Ms Foltin’s car in front of him.
I do not accept that, as the plaintiff contends, Ms Foltin was required to abort her turn; nor was she required to move to the left, and nor was she required to stop. The safest course was to continue with the manoeuvre which was clearly and adequately communicated to those who followed her. Indeed, to have stopped, would have made the situation worse.
I should also add that had I concluded that the failure of Ms Foltin to look in her rear view mirror a second time constituted a breach of her duty of care, I would have held that the breach caused no loss to the plaintiff. I take the view that had she looked a second time, she would have reconfirmed that the plaintiff was still behind her, and she would have continued to manoeuvre to turn left, as she was entitled to do.
It follows that I do not find that Ms Foltin breached the duty of care to which she was subject, and that there should be verdict and judgment for the defendant.

Damages

Notwithstanding the conclusion to which I have come in relation to liability, I should make findings on damages: Nevin v B & R Enclosures [2004] NSWCA 339 at [74]-[75].
Before moving to the issue of damages, I should say that I have no hesitation in accepting the evidence of the plaintiff and Dr Enright as to the plaintiff’s current limitations, and on the effects which those limitations have on his professional and home life. Indeed, the defendant did not suggest that I do otherwise.
Seeing the plaintiff give evidence in the witness box provided a valuable opportunity to assess the effects of the accident on him, especially in relation to his cognitive skills. The evidence of his partner, Dr Enright, also provided a valuable insight into the effect of his disabilities on both his professional and domestic life. She was uniquely placed to do this, being as she was, both the plaintiff’s life partner, and his professional colleague at the same department at the University of Queensland.
Dr Enright’s evidence led me to conclude that the plaintiff was inclined to understate the extent of his disabilities following from the accident.
Associate Professor Gard has been able to return to work, but only at 30% of his pre-accident capacity. He is unable to teach or write a paper, indeed he struggles to draft an email unsupervised. His work is primarily limited to the supervision of three PhD students (T135.17-20).
The plaintiff becomes anxious about flying in planes and being in crowds (T146.49). He used to enjoy delivering academic papers at conferences, but is now incapable of doing so, at least unaided. He has attempted to increase his workload beyond the current 30% level without success (T170.7).
Prior to the accident, the plaintiff was a competent guitarist and singer who regularly performed in public (T133.1-16). While the effect of his rehabilitation therapy has been to allow him to resume playing the guitar, he told the court that he could no longer sing (T146.49).
Before the accident, the plaintiff was an avid reader of fiction and non-fiction (T138.30-38). Since the accident, he struggles to comprehend fiction and poetry (T138.16-25). He is much slower at reading now (T138.50-139.10).
The defendant did not dispute that the plaintiff has suffered the brain injury which he suffered, nor does it dispute that the plaintiff has ongoing deficits consequent upon this injury, particularly those affecting his communication skills. The defendant, however, maintained that the plaintiff retained considerable intellectual reserves, and has a meaningful capacity to undertake duties required of an academic at tertiary level. The defendant suggested that the plaintiff’s communication skills would continue to improve such that he would, within the next two years, be able to resume face-to-face lecturing of students.
As I have previously indicated, at the time of the accident, the plaintiff was in a standard probationary period following his initial appointment to the role of Assistant Professor. This probation period has been extended until, effectively, June 2020. As such, his employment cannot be terminated by the University of Queensland prior to that date.
The defendant concedes that there is the prospect that at that time, the plaintiff’s academic employment might not be renewed at the University of Queensland. It submits, however, that he may be capable of obtaining academic employment at what it referred to as one of the “many lower ranking universities”.
The plaintiff’s case is that, but for his injuries, he would have been promoted to the level of Professor with the consequent increase in his remuneration. The defendant asserts that that prospect cannot be accurately evaluated and points to the fact that there was no evidence from the University of Queensland about the availability of professorial positions, or the plaintiff’s prospects of promotion.
Certain of the submissions of the defendant which I set out above cannot stand in the light of the uncontradicted expert evidence. As to the prospect of the plaintiff’s disabilities improving, this is contradicted by the expert report of Dr Paul Darveniza of 24 January 2018, wherein Dr Darveniza expresses the following opinions (Ex P2, p2):

In summary, this gentleman was involved in a motor vehicle accident, suffering fractures to the left side of the face and traumatic occlusion of the left internal carotid artery (probably a dissection) with a left middle cerebral artery territory stroke. He received definitive treatment and rehabilitation but he has been left with a significant unappealing non-fluent expressive dysphasia, a mild receptive dysphasia and mild left/right disorientation. He also has subtle reduction with fine finger and foot movements on the right.
It is now three years since the accident and he is unlikely to improve any further and his current disabilities may be considered stable and permanent.
In my opinion his ability to return to his former academic position on a fulltime basis is severely compromised. As an academic he would require full normal language functions. In the longer term he may be unable to sustain an academic appointment but only time will tell. In that instance, his economic outcome would be severely affected.

The proposition that the plaintiff will be offered academic appointments in the future was contradicted by the evidence of Ms Brooke Farmer, an occupational therapist. Ms Farmer expressed the following views (Ex P3, p505-506):

Functional assessment was completed and revealed that Associate Professor Gard experienced restrictions with endurance, writing, reading, expressive and receptive comprehension, attention and concentration, mood disturbance, balance and coordination as a consequence of his right lower limb injury.
Analysis and interpretation of the medical reports indicates that Associate Professor Gard should for the foreseeable future avoid tasks that involve:
- Sustained periods of activity without the opportunity for frequent rest breaks
- Sustained periods of concentration and attention
- Sustained participation in tasks despite performance anxiety and stress
- Crowded spaces, busy or noisy environments
- Forced public speaking which contributes to high anxiety
- Environments which require response to auditory information in a time sensitive capacity.
Due to the effects of his injuries, Associate Professor Gard experienced ongoing restrictions and difficulty with his pre-injury occupation and had not been able to return to his previous level of capacity.
No alternative occupations were identified as suitable. Mr Gard was identified to have transferrable skills but due to his ongoing cognitive and communication limitations, he was anticipated to have restrictions with pursuing alternative career paths or further studies.
Associate Professor Gard would benefit from continued occupational rehabilitation services for the encouragement of a durable return to work. It is unknown at this stage whether he will manage to upgrade to his pre-injury hours or duties. Additionally, it is also unknown if he will manage to retain his contract or gain additional research grants.
Associate Professor Gard is 53 years of age and the Australian Bureau of Statistics defines a mature age worker as over 45 years of age. It is my opinion that Associate Professor Gard’s age may be a contributing factor that could impact on his chances of gaining employment in the future. Associate Professor Gard lives in Brisbane and his place of residence is not expected to be a factor that would restrict access to positions of employment.
I conclude that Associate Professor Gard’s chance of gaining employment on the open market in the future is poor consequent to the subject accident and sustained injuries. He is likely to continue to experience restrictions with the high level cognitive demands of his employment as an academic. Should he be unsuccessful in maintaining his contract following the 3 year probation period, he is likely to experience significant difficulty with gaining new employment as an Academic due to his ongoing barriers with cognition. This conclusion is based on the assumption that Associate Professor Gard’s current level of function persists for the foreseeable future.
Prior to sustaining the subject accident injury and ongoing symptoms, Associate Professor Gard planned to continue his career as an Academic Researcher and Professor (University Lecturer – ANZSCO:242111). I have no reason to doubt that Associate Professor Gard would have realised his pre-injury intentions, but for the effects of his injuries and would have continued working his way up through promotions until requirement at (minimum) 67 years of age.

The defendant’s position that if the plaintiff failed to achieve continued employment at the University of Queensland, he could do so at a “lower ranking university”, was also contradicted by Dr Enright’s evidence. Dr Enright said that while the plaintiff had an impressive CV, in the modern competitive university market, universities were less interested in CVs than projected research outputs. She explained that it was a prospective appointee’s “projected outputs” which counted more than past academic achievements (T202.30).
Dr Enright explained that having “big people on your books” was no longer seen as prestigious, unless they were also “bringing in money or grants” (T202.43-46). She doubted the plaintiff’s CV would lead a lower ranked university to see him as providing “ a feather in their cap”. When the contrary proposition was put to her, she answered:

Maybe - maybe once upon a time, but there would be - now they are, and this is - they are increasingly interested in what you’re going to give to them. So, they want the - it’s the projected outputs that matter more than the past CV. So, actually, a younger academic with a sharper trajectory, would be more attractive than a Michael Gard at this point in time, I think (T202.32-38).

I accept Dr Enright’s evidence.

Non-economic Loss

It is common ground that the required statutory threshold for damages for non-economic loss, has been satisfied (section 131 of the MAC Act). Once that threshold has been passed, the Court is then required to assess damages for non-economic loss without statutory restraint (Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199 at [39] per Heydon JA). That is to say, that the assessment is to be made at common law.
The maximum value for non-economic loss, effective from 1 October 2018, is presently $546,000 (Motor Accidents Compensation (Determination of Loss) Order 2009 (NSW)).
Non-economic loss is defined in section 3 of the MAC Act to mean any one or more of the following:

pain and suffering, and

loss of amenities of life, and

loss of expectation of life, and

disfigurement.

The injuries sustained by the plaintiff were serious, resulting in significant intellectual impairment. It is clear from the medical evidence that the plaintiff’s mental impairment is severe and likely to continue for the rest of his life. He has a life expectancy of 31 years.
Taking into account the plaintiff’s age, his prior intellectually active lifestyle, and the physical and mental impact this accident has had upon him, an assessment towards the higher end of the maximum amount is appropriate. He was obviously a person who enjoyed many of the pursuits available to an active and intelligent mind, many of which are now no longer available to him.
The effect of the accident has been that the plaintiff has been permanently adversely affected in his day-to-day functioning. This has occurred in the areas of planning, organisation, and professional judgment. His behavioural restraints are affected, as are some aspects of his socialisation, which has limited his social opportunities.
The plaintiff submits that an appropriate award for non-economic loss would be in the sum of $450,000. The defendant suggested the appropriate figure for the same award would be $300,000. I do not believe that the figure suggested by the defendant adequately compensates the plaintiff for the losses set forth in section 3 of the MAC Act. The plaintiff has been through considerable pain and long periods of hospitalisation. With extensive rehabilitation, to his credit, he has improved considerably. The fact is, however, that the quality of his life and the very expectation of his life have been significantly reduced as a consequence of the accident.
I will come to future economic loss later in these reasons, but at present should say that even though I have found that the plaintiff would have had an entitlement to substantial future economic loss, that future economic loss would not in any way provide compensation for the non-pecuniary aspects of the likely loss of his career as a high level academic. Associate Professor Gard said on a number of occasions that he “loved the job” (T136.30, T166.17,33,49). He obviously obtained great personal satisfaction from all of its aspects, including his interaction with classes and PhD students, delivering of papers at conferences, as well as his writing and his research. These work satisfactions will now, in my view, be deprived to him. The loss of these non-pecuniary work satisfactions must also be reflected in non-economic loss.
The task of assessing non-economic loss is definitionally, one of impression. That said, and taking into account the matters set out above, I believe that an appropriate figure for non-economic loss would be $390,000.

Past Loss of Earnings

There was no dispute about this aspect of damages.
But for the accident, the plaintiff would have earned $1,855 per week net for the period of one year, being the period from the accident to his return to work. This amounts to the sum of $96,460.
Since 1 January 2017, the plaintiff earned 30% of his pre-accident earnings, being the amount of $555 a week. That results in a loss of $1,300 a week, which to the date of the conclusion of the hearing (16 May 2019), amounts to a loss of $160,000. Rounding the calculation up, this produces a past loss of earnings award of $257,000.

Past Loss of Superannuation

The University of Queensland enterprise agreement pursuant to which the plaintiff was employed, provides for superannuation contributions by the University of 17%. Applying that percentage to past loss of earnings, there is a past loss of superannuation of $44,000.
The parties were in agreement as to this sum.

Future Economic Loss

Section 126 of the MAC Act provides:

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

In Zurich Australia Insurance Ltd v Roumanos [2013] NSWSC 1922, Garling J stated:

[38] It is correct that s 126 of the MAC Act provides particular requirements before an award is to be made for future economic loss, but the terms of s 126 do not constitute a code for the awarding of damages for future economic loss: see Amoud v Al Batet [2009] NSWCA 333 at [22]- [28]. On the contrary, the section provides a negative criterion in subsection (1), that is, an award of damages for future economic loss cannot be made unless the Court is satisfied of certain matters. It also includes a requirement for positive findings and a requirement for various assumptions to be stated. In light of the terms of s 126 , and the authorities referred to, I am unable to accept as correct, the proposition that future economic loss is "governed entirely" by s 126 of the MAC Act.

The terms of section 126 were considered by the Court of Appeal in Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281; (2012) 81 NSWLR 626, where at [26]-[27], Barrett JA said:

[26] The underlying principle is that the plaintiff should have a sum by way of damages for the difference between earning capacity as it would have been in the absence of the injury and the earning capacity as it is following the injury. Both elements involve uncertainty and conjecture and, therefore, require that assumptions be made, albeit assumptions shaped by the available evidence. The assumptions cover, among other things, remaining expectancy of working life, the impact of the injury on that expectation, the extent to which the ability to function will be curtailed and the earnings that work according to the reduced ability will produce, together with assumptions regarding discounted present value and investment returns and as to vicissitudes or adverse contingencies. Because of s 126(1) , an assessor has a duty to form an opinion that the assumptions to be applied in relation to such matters going to future earning capacity 'accord with the claimant's most likely future circumstances but for the injury.
[27] The duty under s 126(1) to be satisfied that the adopted assumptions accord with the most likely future circumstances but for the injury is supplemented by the s 126(3) duty to articulate the assumption on which the award is based. This, as has been said in this Court more than once, is to ensure transparency and, at the same time, to inject an element of rigor or method that may be overlooked or simply abandoned if the statutory system did not insist on the identification and articulation of the assumptions employed.

His Honour went on to say at [30] that assumptions may be "somewhat impressionistic", and there was only a need to state an assumption in very general terms. In addition, His Honour said at [33] that matters upon which an assessor relies may not call for "particular elaboration or explanation", but rather "a brief statement of what might seem to be reasonably obvious may well suffice".
The relevant steps to be addressed when applying section 126 of the MAC Act were also considered by the NSW Court of Appeal in Kallouf v Middis [2008] NSWCA 61 at [7] where McColl JA and Hall J said:

Section 126 is in the same terms as s 13 of the Civil Liability Act 2002. The provisions of the two sections have been considered by this Court on a number of occasions: Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; (2004) 41 MVR 235; Penrith City Council v Parkes [2004] NSWCA 201; Nominal Defendant v Lane [2004] NSWCA 405. The principles established by those cases as to the application of s 126 have been summarised by P A Leslie and M M G Britts, Motor Vehicle Law in New South Wales, 4th ed (1993) (at [13.7792]) as follows:
(a) assess the 'most likely' of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration);
(b) assess the claimant's economic prospects as a consequence of the accident;
(c) compensate the claimant for the difference between (a) and (b), including, where appropriate, through the use of a buffer;
(d) adjust (c) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (a) even had the accident not occurred; and
(e) include a statement of the assumptions made as to the claimant's most likely future circumstances and the appropriate percentage adjustment."

The first step required by this approach is thus to assess the most likely of the possible future circumstances facing the plaintiff, but for the accident.
In this respect, the plaintiff submitted that, but for the accident, he would have:

continued to work at the University of Queensland;

worked in full time employment;

worked as an Associate Professor;

been promoted to Professor;

worked until at least the age of 70 years; and

earned an income in accordance with the University of Queensland Enterprise Agreement.

As to the plaintiff’s economic prospects as a consequence of the accident, he submits that he will most probably:

not be able to obtain a renewal of his University of Queensland contract at the end of 2020;

not be able to gain any alternative employment;

be totally unfit to work for the remainder of his life; and

not be able to obtain any remuneration or income from any employment

The defendant, on the other hand, submitted that the following assumptions were appropriate for the Court to make:

On the balance of probabilities, but for the accident on 26 December 2015, the plaintiff would have remained in the employment of the University of Queensland as an Associate Professor.

The plaintiff would have retired on his 67th birthday, that is, on 24 April 2032.

The plaintiff’s current earnings in that role, had he remained uninjured, would be around $2,100 net per week.

The plaintiff has a residual earning capacity of 30% of that sum, or $630 net per week.

The plaintiff therefore has a loss of earnings of $1,470 net per week, which will continue for almost 13 years until his 67th birthday (5% multiplier 500).

The appropriate discount for vicissitudes is the conventional 15%.

On the issues going to the plaintiff’s likely position but for the accident, it seems to me that there were only two areas of dispute, being:

whether the plaintiff would have attained the rank of Professor; and

his likely retirement age.

As to the issues going to the position now facing the plaintiff, the only areas of dispute were:

whether his contract with the University of Queensland will be renewed; and

if not, whether the plaintiff will obtain work at another university.

Promotion to Professor

The plaintiff claims that he would have been promoted to Professor during the course of his career, and draws my attention to the decision of the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, and in particular to the joint judgment of Deane, Gaudron, and McHugh JJ at 643, where their Honours said:

Thus, the Court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded.

In reliance on Malec v JC Hutton, the plaintiff submitted that the Court should allow 50% of the claim for loss of the plaintiff’s opportunity of being promoted to full Professor, over and above the claim for economic loss as an Associate Professor at total incapacity. This is sought as a consequent loss of opportunity to earn increased wages as a full Professor.
Mr Rewell SC for the defendant, points to the lack of evidence as to the prospects of the plaintiff attaining the rank of Professor. It is true that no such evidence was led, but given its inherently conjectural nature, I wonder if such evidence would have advanced the matter greatly.
Mr Rewell SC conceded that if I conclude that there is a realistic prospect of such an outcome, then it is compensable (Medlin v State Government Insurance Commission (1995) 182 CLR 1).
The salary rates of Associate Professors and Professors at the University of Queensland were not in dispute. The net difference between the two (at the present) in net weekly terms is $305.48.
I shall apply this sum to my calculation of future economic loss, but reflecting the possibility of the plaintiff obtaining the rank of Professor, which I assess at 50%.

Working Life to Age 70

The plaintiff suggests that, but for the injuries, he would have worked until the age of 70 years. The plaintiff points to the lack of evidence to the contrary and indeed the frequent evidence by the plaintiff that he “loved the job” (T136.30, T166.17,33,49). He also submits that, given that his younger partner is employed in the faculty, this was another factor suggesting a retirement age of 70.
I accept the plaintiff’s submission and find that the plaintiff would have retired at age 70.

Assessing the Plaintiff’s Economic Prospects as a Consequence of the Accident – Residual Earning Capacity

The plaintiff asserted that he will most probably:

not be able to obtain a renewal of his contract at the end of 2020;

not be able to gain any alternative employment;

be totally unfit to work for the remainder of his life; and

not be able to obtain any remuneration or income from any employment.

While the University of Queensland has been supportive of the plaintiff on his return to work, I do not believe that at the end of his probationary period, his employment will be continued. The plaintiff is only capable of working at a 30% load, and that is unlikely to substantially increase. The University, being as it is a public institution, cannot be expected to act in relation to the plaintiff’s continued employment, on the basis of sympathy alone.
As Dr Enright’s evidence demonstrated, the modern tertiary education environment is a highly competitive one. I accept the evidence that the plaintiff has lost the capacity to provide what Dr Enright described as “output”. Thus, I do not believe that the plaintiff will find employment at another tertiary institution.
The defendant did not suggest that there were realistic, alternative employment opportunities available to the plaintiff, other than an academic life.
I thus find that at the conclusion of his current probationary period at the end of June 2020, the plaintiff’s working life will be at an end.
In summary, damages for future economic loss should be calculated on the basis of the following assumptions:

that the plaintiff would have continued to work at the University of Queensland;

that he would have worked in full time employment;

that he would have worked as an Associate Professor;

that he would have been promoted to Professor;

that he would have worked until at least the age of 70 years;

that he would have earned an income in accordance with the University of Queensland Enterprise Agreement; and

that at the conclusion of his probation in June 2020, the plaintiff’s employment with the University of Queensland will cease and he will be unable to obtain appropriate employment thereafter.

Accordingly, the plaintiff will be entitled to a sum that reflects the net present value (on the 5 per cent tables), and applying a 15% deduction for vicissitudes in respect to future economic loss based on the assumptions I have set out above. I shall set this calculation out later in these reasons.

Superannuation

The assessment of the loss of employer funded superannuation benefits consequent upon the assessment of economic loss, must proceed on the basis of 17% in accordance with the University of Queensland Enterprise Agreement 2018 -21, in two stages in view of the gross and net components of that assessment: Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25, at [60] – [63].

Fox v Wood

Due to the fact that the plaintiff has received income protection insurance in gross payments from life insurance company TAL, and there is the prospect of a payback to TAL for the gross payments made, there is a potential claim pursuant to Fox v Wood (1981) 148 CLR 438, applied by analogy. As the obligation to repay TAL was uncertain, dealing with this element of loss would be difficult at the present time.
The parties, cognisant of this fact, have agreed that a Fox v Wood type sum should be awarded in the sum of $18,804.
I assess the damages to which the plaintiff would have been entitled but for my conclusions on liability, at $1,986,817.22, calculated as follows:

SCHEDULE OF DAMAGES

1. NON ECONOMIC LOSS

$390,000

2. PAST ECONOMIC LOSS (As Agreed)

$257,000

3. ECONOMIC LOSS

Pre-Injury Earning Capacity –

University of Queensland Enterprise Agreement 2018-2021

Associate Professor - Level D

As at 28 Feb 2019

Gross Per Year

$155,627.83

Gross Per Week

$2,992.84

Tax Payable

$927.00

Net Per Week

$2,065.84 net per week

Professor - Level E

Gross Per Year

$181,964.85

Gross Per Week

$3,499.32

Tax Payable

$1,128.00

Net Per Week

$2,371.32 net per week

4. FUTURE ECONOMIC LOSS

Associate Professor

Pre-Injury Earning Capacity

$2,065.84

Post Injury Earning Capacity

$0.00

Net Loss Per Week

$2,065.84

Working Life to 70

16 years

5% Multiplier

579.5

$1,197,155.95

less 15%

$1,017,582.56

Professor

Pre-Injury Earning Capacity

Professor

$2,371.32

Associate Professor

$2,065.84

Difference

$305.48 Net Per Week

Malec v Hutton 50%

$152.74 Loss Per week

Working Life to 70

16 years

5% Multiplier

579.5

$88,513.16

less 15%

$75,236.19

Total $1,092,818.75

5. SUPERANUATION

On Past Net Economic Loss of 17%

$249,501.65

$42,415.28

On Future Net Economic Loss of 17%

$1,092,818.75

$185,779.19

Total $228,194.47

6. FOX v WOOD CLAIM (As Agreed)

$18,804.00

TOTAL DAMAGES

$1,986,817.22

Final Orders

I make the following orders:

Verdict and Judgment for the Defendant.

The Plaintiff is to pay the Defendant’s costs.

**********

Decision last updated: 13 June 2019

Medium Neutral Citation:	Gard v Allianz Australia Insurance Limited [2019] NSWDC 254
Hearing dates:	15 – 18 April 2019, 16 May 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Civil
Before:	Judge Weber SC
Decision:	(1) Verdict and Judgment for the Defendant (2) The Plaintiff is to pay the Defendant’s costs
Catchwords:	TORTS – Negligence – Road accident cases - cyclist collision with rear of motor vehicle - liability dispute - where cyclist looked down to check gears - whether motor vehicle was reversing or moving forward - whether driver breached duty by failing to check rear-view mirror and abort manoeuvre - where factual causation not satisfied. DAMAGES - where plaintiff suffered traumatic brain injury - non-economic loss - where plaintiff led intellectually active life - economic loss - whether plaintiff would have attained rank of Professor - plaintiff's likely retirement age – plaintiff’s residual earning capacity - whether plaintiff will achieve continued university employment - where Fox v Wood damages agreed
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW) Motor Accidents Compensation (Determination of Loss) Order 2009 (NSW)
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Browne v Dunn (1893) 6 R 67 Cook v Cook [1986] HCA 73; 162 CLR 376 Dennis v Keep [2002] NSWCA 227 Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 Fox v Wood (1981) 148 CLR 438 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 Hamshere v Favelle [2009] NSWCA 4 Hawthorne v Hillcoat [2008] NSWCA 340; (2008) 51 MVR 523 Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199 Kallouf v Middis [2008] NSWCA 61 Killick v R (1981) 147 CLR 565 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Mamo v Surace [2014] NSWCA 58 Marien v Gardiner [2013] NSWCA 396 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 Nevin v B & R Enclosures [2004] NSWCA 339 New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 Shoalhaven City Council v Pender [2013] NSWCA 210 Strong v Woolworths [2012] HCA 5; 246 CLR 182 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Wallace v Kam [2013] HCA 19; 250 CLR 375 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25 Zurich Australia Insurance Ltd v Roumanos [2013] NSWSC 1922
Category:	Principal judgment
Parties:	Michael Gard (Plaintiff) Allianz Australia Insurance Limited (Defendant)
Representation:	Counsel: Mr P Blacket SC; Mr J Wilson (Plaintiff) Mr K Rewell SC (Defendant) Solicitors: Stacks Law Firm (Plaintiff) McInnes Wilson Lawyers (Defendant)
File Number(s):	2017/00294709-001
Publication restriction:	None

1. NON ECONOMIC LOSS	$390,000
2. PAST ECONOMIC LOSS (As Agreed)	$257,000
3. ECONOMIC LOSS
Pre-Injury Earning Capacity –
University of Queensland Enterprise Agreement 2018-2021
Associate Professor - Level D
As at 28 Feb 2019
Gross Per Year	$155,627.83
Gross Per Week	$2,992.84
Tax Payable	$927.00
Net Per Week	$2,065.84 net per week
Professor - Level E
Gross Per Year	$181,964.85
Gross Per Week	$3,499.32
Tax Payable	$1,128.00
Net Per Week	$2,371.32 net per week
4. FUTURE ECONOMIC LOSS
Associate Professor
Pre-Injury Earning Capacity	$2,065.84
Post Injury Earning Capacity	$0.00
Net Loss Per Week	$2,065.84
Working Life to 70	16 years
5% Multiplier	579.5
$1,197,155.95
less 15%	$1,017,582.56
Professor
Pre-Injury Earning Capacity
Professor	$2,371.32
Associate Professor	$2,065.84
Difference	$305.48 Net Per Week
Malec v Hutton 50%	$152.74 Loss Per week
Working Life to 70	16 years
5% Multiplier	579.5
$88,513.16
less 15%	$75,236.19
Total $1,092,818.75
5. SUPERANUATION
On Past Net Economic Loss of 17%	$249,501.65
$42,415.28
On Future Net Economic Loss of 17%	$1,092,818.75
$185,779.19
Total $228,194.47
6. FOX v WOOD CLAIM (As Agreed)	$18,804.00
TOTAL DAMAGES	$1,986,817.22