Grigoriadis v Sidiropoulos

[2019] NSWDC 486

District Court

New South Wales

Medium Neutral Citation:	Grigoriadis v Sidiropoulos [2019] NSWDC 486
Hearing dates:	6, 7, 8, 9, 10, 13, 14, 15 August; 22, 25 October; 3 December 2018; 8 and 22 February 2019; (close of submissions 22 March 2019)
Date of orders:	13 September 2019
Decision date:	13 September 2019
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See [332] for orders
Catchwords:	TORTS – negligence – motor vehicle accident – factual findings concerning disputed factual circumstances and related determination of whether the first defendant was negligent and whether there was contributory negligence on the part of the plaintiff; DAMAGES – assessment of claimed heads of damage
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5R, s 5S, s 15B Mental Health Act 1990 (NSW), s 29, s 33 Motor Accident Compensation Act 1999 (NSW), s 136, s141B Social Security Act 1991 (Cwth), s 1160, s 1184 Uniform Civil Procedure Rules 2005, r 20.15
Cases Cited:	Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 Fox v Percy [2003] HCA 22; 214 CLR 118 Insurance Australia Ltd t/as NRMA Insurance v O’Rourke [2017] NSWSC 494 Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 Redding v Lee (1983) 151 CLR 117; [1983] HCA 16 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Todd v Bluescope Steel (AIS) Pty Limited [2006] NSWDDT 33 Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53
Category:	Principal judgment
Parties:	Kiparissia Grigoriadis (Plaintiff) Harry Sidiropoulos (First Defendant) The Nominal Defendant (Second Defendant)
Representation:	Counsel: Mr E Romaniuk SC with Mr P Macarounas (Plaintiff) Mr R Cavanagh SC with Mr B Wilson (First defendant) Mr J Catsanos (Second defendant)   Solicitors: AJB Stevens Lawyers (Plaintiff) Sparke Helmore (First defendant) Moray & Agnew (Second defendant)
File Number(s):	2015/281176
Publication restriction:	None

Judgment

Table of Contents

Nature of case	[1]
Parties	[2] – [3]
Factual content to plaintiff’s claim	[4] – [7]
Defences	[8] – [9]
Issues	[10] – [12]
Evidence overview	[13] – [20]
Transcription issues	[21] – [27]
Review of the respective factual accounts	[28] – [65]
Mr Christopher Grigoriadis	[29] – [41]
Plaintiff, Mrs Kiparissia Grigoriadis	[42] – [54]
First defendant, Mr Harry Sidiropoulos	[55] – [65]
Review of expert evidence on liability issues	[66] – [155]
Mr Jamieson - reports	[67] – [72]
Dr Gibson - reports	[73] – [76]
Dr McIntosh - reports	[77] – [84]
Mr Griffiths - reports	[85] – [88]
Joint report of liability experts	[89] – [90]
Concurrent oral evidence from liability experts	[91] – [109]
Evaluation and findings on liability expert evidence	[110] – [154]
Utility of expert evidence on liability issues	[155]
Credibility and reliability of testimony	[156] – [177]
Mr Grigoriadis	[157] – [158]
The plaintiff	[159] – [168]
The first defendant, Mr Sidiropoulos	[169] – [177]
Survey of relevant records relating to liability	[178] – [187]
Transcript of the call to 000 Emergency	[179] – [181]
Ambulance records	[182] – [184]
Hospital records	[185]
Recorded histories as to accident circumstances	[186] – [187]
Factual findings relevant to the issues to be determined	[188] – [231]
(1) Plaintiff’s domestic circumstances	[189]
(2) Plaintiff’s pre-accident health and medical history	[190] – [194]
(3) Injuries and initial treatment	[195] – [206]
(4) Subsequent medical and allied assessments	[207]
(5) Meeting of the psychiatrists and their joint report	[208] – [209]
(6) Concurrent evidence given by Dr Morse and Dr McClure	[210]
(7) Evaluation and resolution of matters of conflict in the medical evidence	[211] – [212]
(8) Disabilities that remain	[213] – [217]
(9) Domestic effects	[218] – [230]
(10) Mitigation	[231]
Issue 1 – Alleged involvement of an unidentified motor vehicle	[232]
Issue 2 – Circumstances in which plaintiff was injured	[233] – [247]
Issue 3 – Whether the first defendant was negligent	[248] – [269]
Issue 4 – Alleged contributory negligence	[270] – [279]
Issue 5 – Assessment of damages	[280] – [329]
(a) Non-economic loss	[281] – [288]
(b) Past personal care and domestic assistance	[289] – [302]
(c) Future personal care and domestic assistance	[303] – [312]
(d) Future s 15B damages – care for daughter	[313] – [323]
(e) Future medical and out-of-pocket expenses	[324] – [327]
(f) Past out-of-pocket expenses	[328]
Summary of damages assessment	[329]
Disposition	[330]
Costs	[331]
Orders	[332]

Nature of case

1. Shortly after 6.00pm on Monday 21 July 2014, the plaintiff, Mrs Kiparissia Grigoriadis, suffered a head injury and a C6/7 fracture of her cervical spine in a street accident that occurred near her home. A timely cervical fusion, which almost did not take place due to her post-injury combative resistance to recommended treatment, fortunately avoided her becoming quadriplegic. The circumstances of the accident remain in substantial dispute between the parties, with each party contending for differing findings of fact. Those positions were based on an array of differing expert opinions which require analysis. The provisions of the Motor Accident Compensation Act 1999 (NSW) (“MAC Act”) and the Civil Liability Act 2002 (NSW) (“CL Act”) apply to these proceedings.

Parties

2. The plaintiff proceeds against the first defendant, Mr Harry Sidiropoulos, the driver of the vehicle from which she had alighted shortly before she was injured.

3. The plaintiff also proceeds against the second defendant, the Nominal Defendant, which was apparently joined because of a liability theory advanced by an expert witness retained by the first defendant. That expert postulated the involvement of an unidentified vehicle in the events of the plaintiff’s injury. The possibility of an unidentified vehicle being involved was also the subject of passing reference in the ambulance records and in the hospital clinical notes where the speculative suggestion was made that the plaintiff sustained her injuries in a “hit and run” accident.

Factual context to plaintiff’s claim

4. On the afternoon in question, the plaintiff had been shopping, attended a medical consultation, and then attended at a café known as the Greek club in Harris Park. She was later driven to her home in Hammers Road, Northmead, by the first defendant, Mr Harry Sidiropoulos. Beforehand, the proprietor had arranged for the first defendant to drive himself and the plaintiff to their homes because it was closing time, the weather was inclement, and there was a delay in obtaining taxi transport home.

5. The plaintiff claims that when the first defendant’s vehicle stopped in her street near her home, she alighted from the rear passenger’s side and then closed the rear passenger door. The plaintiff claims that at the time, unbeknown to the first defendant, and also unbeknown to her, a corner of her knee length leather outer garment, variously referred to as a coat or a jacket, had become caught in the closed door of the vehicle from which she had just alighted. The plaintiff claims that after the vehicle door had closed, the first defendant then drove his vehicle away, and in the process, she was dragged along by the vehicle, for some distance.

6. The plaintiff claims that in those events, whilst she was for a short time still able to remain on her feet, she had attempted to run to keep up with the moving vehicle, and in the process, she had resorted to hitting the passenger side window with her hand in an unsuccessful attempt to try and attract the attention of the first defendant for him to stop the vehicle.

7. The plaintiff said that at some stage in those events, she hit her head on the side of the vehicle, and she later somehow became disentangled from her coat. In these events her coat also became free from the door of the vehicle, she fell to the roadway, thereby sustaining multiple physical injuries. But for a surgical fusion of an unstable life-threatening fracture to her cervical spine, the outcome of those events could have been very much different.

Defences

8. The first defendant denied the factual correctness of the plaintiff’s account of the events of the accident as summarised above. Instead, on his behalf, it was postulated that the plaintiff’s injuries could have been due to her having simply fallen down onto the roadway, or that her fall was perhaps due to the involvement of an unidentified motor vehicle.

9. Consequent upon that latter assertion, as an alternative liability case, the plaintiff joined the Nominal Defendant as the second defendant to the proceedings. The second defendant denied the involvement of an unidentified motor vehicle, and maintained that version of events was implausible.

Issues

10. The resolution of the disputed factual circumstances in which the plaintiff’s injuries occurred must be determined according to the assessment of the credibility and reliability of the testimony of several witnesses. That task presents some difficulty in this case because of the content of some historical accounts of a number of unrelated adverse events in the plaintiff’s past life and circumstances. Those matters mentioned in the voluminous documentary exhibits have led the first defendant to make substantial challenges to the credibility and the reliability of the plaintiff’s testimony. This is a matter to which I shall return after reviewing the array of factual and expert evidence.

11. Apart from those matters of credit, the central issues calling for decision may be conveniently identified as follows:

1. Whether an unidentified motor vehicle was involved in the circumstances of the accident, and if so, was the driver of that vehicle negligent. My reasons for decision on that issue appear at [232] of this judgment;

2. Determination of the most probable factual sequence of events and circumstances that occurred at the time the plaintiff sustained her injuries. My reasons for decision on that issue appear between [233] and [247] of this judgment;

3. Whether the first defendant was negligent in the circumstances of the accident, and if not, did the circumstances of the plaintiff’s injury constitute a blameless accident. My reasons for decision on that issue appear between [248] and [269] of this judgment;

4. Whether the plaintiff’s entitlement to damages should be reduced on account of her own contributory negligence, as was alleged by the first defendant, and if so, by what degree of apportionment. My reasons for decision on that issue appear between [270] and [279] of this judgment;

5. The assessment of the plaintiff’s entitlement to damages. My reasons for decision on that issue appear between [280] and [329] of this judgment. Those heads of damage claimed by the plaintiff are for:

1. Non-economic loss;

2. Past personal care and domestic assistance;

3. Future personal care and domestic assistance;

4. Damages for personal care and assistance required by the plaintiff’s disabled adult daughter: s15B of the CL Act;

5. Future medical and out-of-pocket expenses;

6. Past out-of-pocket expenses.

12. An overview of the evidence and some matters concerning the transcription of certain parts of the evidence now follows.

Evidence overview

13. In the plaintiff’s case, in addition to the plaintiff’s own evidence, oral evidence on factual matters was given by her estranged husband, Mr Christopher Grigoriadis. Their evidence requires close analysis. The remainder of the plaintiff’s case comprised expert and documentary evidence, and evidence from a number of liability and medical experts.

14. The first defendant gave oral evidence of his understanding of the factual circumstances that prevailed at around the time of the plaintiff’s injury. His account was that, on the afternoon of the day in question, he had driven the plaintiff to her home and had simply dropped her off, and once the rear door of his vehicle was closed by the plaintiff, and when she was clear of the vehicle, he had driven away in a normal manner, unaware of the existence of any problem of the kind described by the plaintiff.

15. Unfortunately, the cross-examination of the first defendant remained necessarily incomplete because during an overnight break in his evidence, he encountered a health event which resulted in his hospitalisation. There was a period of delay on that account. Later it became clear that he would not be able to continue with his evidence. The parties then sensibly reached a pragmatic consensus, whereby the hearing continued without adverse comment on the fact that the first defendant’s evidence remained incomplete due to the force of those circumstances.

16. The parties relied on expert evidence concerning the liability issues. In that regard, the plaintiff retained Mr John Jamieson, an engineer with experience in accident analysis, and Dr Thomas Gibson, a biomechanical engineer. The first defendant retained Dr Andrew McIntosh, a biomechanical engineer and the second defendant retained Mr Michael Griffiths, a traffic accident research engineer, on those issues. Those experts prepared primary liability reports and they then prepared a joint report after a conclave meeting, following which they gave their oral evidence concurrently: T310 – T359.

17. The first defendant required the plaintiff’s assessing orthopaedic surgeon, Dr James Bodel for cross-examination: T249 – T266.

18. On the damages issues of whether and, if so, to what extent the plaintiff should be awarded damages for past and future domestic assistance, the parties relied upon expert reports from occupational therapists. The plaintiff tendered reports from Ms Kate Dawson dated 6 September 2016 and 3 April 2018. The defendant tendered reports from Ms Natarsha Taylor-Fick dated 19 May 2016, 4 November 2016 and 31 July 2018. Those experts had a conclave meeting and produced a joint report dated 2 August 2018: Exhibit “D”. They gave their evidence concurrently: T267 – T293. The evidence of the occupational therapists will be considered and evaluated in that part of these reasons that deals with the assessment of the claim for damages for past and future domestic assistance.

19. The parties tendered voluminous bundles of documents comprising, the clinical records relating to the plaintiff, reports relating to medical treatment, expert liability reports, expert medical reports and damages materials.

20. Included in those materials was a statement the compulsory third party (CTP) insurer had obtained from the first defendant on 18 September 2014, eight weeks after the accident: Exhibit “D2.5”, Tab 1, pp 1 – 7.

Transcription issues

21. The transcript of the plaintiff’s evidence contained some minor transcription errors because of her accent. Nothing appears to turn on those matters.

22. The first defendant’s legal representatives expressed a view or a concern that the evidence of Mr Sidiropoulos may not have been accurately or adequately interpreted from the Greek language into the English language.

23. After some debate about that matter, whilst acknowledging that there was a material difference between the dynamic process of spontaneous and contemporaneous interpretation of evidence as given in Court, and the less dynamically pressured process of an out of Court translation (T297.34), it was determined that the transcript of evidence and the audio recording of that evidence should be considered and compared. That exercise was made the subject of a reference to an independent Referee pursuant to Uniform Civil Procedure Rules 2005 (“UCPR”) r 20.15.

24. A Referee was asked first to listen to the audio recording of the first defendant’s evidence to form an opinion on whether or not the transcript represented a reasonable, fair and accurate interpretation of the evidence of the first defendant, and secondly, to report to the Court on that matter, either in the affirmative or the negative. If in the case of the latter, the Referee was asked to identify the detail of the aspects of the record that were not reasonable, fair or accurate.

25. The Referee who was initially appointed for that purpose baulked at the enormity of the prospect of the task when it was presented to her. That caused some further delay in finalising the proceedings due to the need to obtain a suitable replacement Referee who was willing to take on the role that had been abandoned by the first Referee.

26. Ultimately, a second Referee, Ms Shirley Zantis, agreed to take on the task. She prepared a differential handwritten pencilled commentary on the transcript of the first defendant’s interpreted evidence and she prepared annotations at places in the transcript where she thought there were inaccuracies in the interpretation of the first defendant’s evidence. In those instances she identified some omitted words and phrases, and she added some corrected text that accorded with her own interpretation of that evidence. The parties then arranged for the tender of that document in a typed form which incorporated those transcript annotations: Exhibit “H”.

27. Ultimately it was agreed between the parties that although there were some areas of difference in the two interpretations of the first defendant’s evidence, there were no substantive differences between those versions: T386.20 – T386.21; T389.2; T389.46.

Review of the respective factual accounts

28. Before identifying my findings on the credibility and the reliability of the testimony of the respective witnesses, it is appropriate that I summarise the salient features of the factual evidence given by each of the witnesses.

Mr Christopher Grigoriadis

29. In light of the attack the defendants made to the plaintiff’s credit, it is convenient to commence with a review of the evidence of Mr Christopher Grigoriadis, her estranged husband.

30. Mr Grigoriadis did not witness the accident. He was told by a neighbour that the plaintiff had been found in an injured state on the roadway near her home. When he arrived at the scene he saw her lying on her back in a position where her head was close to the kerb in the kerbside lane, at an angle of about 90 degrees.

31. When Mr Grigoriadis attended the scene he saw an area of blood behind her head. He saw that others were tending to the plaintiff so returned to his house to continue to look after their adult daughter who had special needs, and who could not be left alone. At that time, it was already known that an ambulance had been summoned to take the plaintiff to hospital.

32. Mr Grigoriadis described how, after the plaintiff’s return from hospital, she was “more angry”, there were arguments for almost no reason, and “she was much worse than what she was before”: T167.37 – T168.1. This implied she had previous issues of some kind. He also described a post-accident change in the level of the plaintiff’s domestic and physical activities, and that since then, she was only attending to her daughter’s basic needs: T168.37.

33. Mr Grigoriadis described how, before the accident, he and his wife did not have a very good relationship. Since 2013, after almost daily arguments, they decided to separate, but they continued to live in separate parts of the house, without a formal divorce: T169.27. It appears this arrangement was influenced by the care needs of their disabled adult daughter.

34. Mr Grigoriadis described how, after the plaintiff’s accident, he took on a greater degree of housework inside the house, of the order of two to three hours per week: T170.37. He also took on about an extra two hours per week of shopping and about five or six hours per week of cooking: T171.26. He also did about an hour of laundry work per week (T171.45) and he also drove the plaintiff to any appointments that she needed to attend.

29. Mr Grigoriadis described a period of pre-accident family turmoil which had resulted in him seeking guardianship of his daughter. He stated that situation ultimately settled down before the subject accident, in about 2010, after the plaintiff had been hospitalised for a while. Mr Grigoriadis said since then, she had “felt better mentally” and she was making better decisions about the care of their daughter: T172.35.

30. In cross-examination, Mr Grigoriadis acknowledged that before the subject accident, the plaintiff “had some depression” and “some anxiety too”: T173.16 – T173.20. He denied the suggestion that they had argued because of untruthfulness on her part (T173.24) and when questioned on the topic he stated that she was truthful to “the guardianship people”, but had “her own point of view”: T173.27 – T173.28. He denied that a pre-accident guardianship application had been supported by him because of his wife’s mental health at that time: T174.28.

31. Mr Grigoriadis was asked questions about the plaintiff’s transport and about her medical attendances. On the latter topic he was not able to provide useful answers as to whether those attendances related to the plaintiff or to his daughter, or to both of them: T176.45 – T178.50. No useful pattern or basis for a comparison could be gauged from his evidence in that regard.

32. Mr Grigoriadis confirmed that since the plaintiff’s accident she did less domestic work: T179. He also stated that since the accident he has undertaken the tasks of grocery shopping, some washing and some laundry, and he continues to do so: T180 – T181.

33. The cross-examiner sought to elicit an opinion from Mr Grigoriadis as to whether the plaintiff had pre-accident mental health issues: T183.9 – T184.3; T185.45 – T186.12. Mr Grigoriadis was in a limited position to form an opinion on such matters as he has only spent between half to one hour per day in her presence and avoided having communication with her (T186.10 – T186.22) and he was plainly not qualified to speak on such matters of expertise.

34. On the subject of how the accident occurred, the cross-examiner sought to obtain verification of a note made by someone of a conversation that purportedly occurred between himself and a person from an organisation that provided care to his daughter. That evidence was, as follows:

“Q. "He said that his wife has mental health issues, did not get hit by a car but came home by a taxi last night with a friend and fell when getting out of the car and hurt herself. To what extent he does not know but went by ambulance to Westmead. He has not spoken to her today so does not know the extent of her injury." First of all did you say to the care officer that your wife had mental health issues?

A. Health issues?

Q. Mental health, psychological.

A. Mental health.

Q. Did you say that the care officer.

A. The care officer?

Q. The care worker.

A. The care worker. I don't remember about this.

Q. Did you have a belief as of 22 July 2014 that your wife had mental health issues?

A. No, no.

Q. She did though, didn't she? Didn't she have mental health issues as of July 2014?

A. No, not that they found, yeah.

Q. Did you say, "She did not get hit by a car but came home by taxi last night with a friend and fell when getting out of the car." Did you say that to the care worker?

A. No, I don't think I said anything like that because I didn't know who brought her home. I learned about that from my wife after a few days. I said, what happened and she told me that she was waiting for the taxi and the taxi was not coming so then she met that gentleman at the coffee shop, she knew him previously and he offered her to give her a lift and she said it would be better for her if she was still waiting for the taxi rather than to get him back home, what happened. This is what she told me. Up to that time I didn't know anything.

Q. When did he tell you that she'd been offered a lift by this gentleman as you described him?

A. After the accident when she could speak to me.

Q. When was that; do you recall?

A. When I saw her in the hospital after a few days. I said to her, "What happened" because I just found her outside on the street.”

[T184.31 – T185.23]

41. It follows from that evidence that Mr Grigoriadis was in no position to give reliable factual evidence as to how the accident occurred, or in relation to making any relevant admissions that were sought by counsel for the first defendant concerning how the accident had occurred.

Plaintiff, Mrs Kiparissia Grigoriadis

42. The plaintiff was born in Drama, in Greece. She is presently aged 58 years. She was aged 53 years at the time of the accident. At age 12 years she left school at the end of her primary education in order to look after her father. She married in Greece at age 15 years. She arrived in Australia at age 17 years, and in that same year, gave birth to her disabled daughter who is now aged 42 years. She also has a son, a solicitor, aged 38 years. He was not called to give evidence. No necessity has been shown for him to have been called to give evidence in this case. No comment arises from his absence as a witness.

43. After the plaintiff’s arrival in Australia, for a relatively short period, she worked in a coffee shop, and she then worked selling cookware. Ultimately, she ceased working due to the increasing needs of her daughter who had acquired permanent disabilities as a complication from Rubella, which she had contracted at age 6 weeks, and which has interfered with her development. The unchallenged evidence was that her daughter does not speak, she cannot live independently, she cannot care for herself, and she needs assistance with the activities of daily living.

44. As already observed, for many years, before the subject accident, the plaintiff and her husband did not have a harmonious relationship. They lived separately in the same house but they shared aspects of the care needs of their daughter. The plaintiff has formal guardianship and carer responsibility for their daughter: T35.33; T36.13. She achieved this against a background of family discord and conflict, including contested proceedings in the Guardianship Tribunal despite her own pre-accident physical and mental health difficulties.

45. On the afternoon of 21 July 2014, shortly before the accident the plaintiff had been shopping for various items, she visited her general practitioner for a prescription, and at about 5.30pm she was in Five Dock waiting for a taxi when the proprietor of a nearby Greek café or club invited her to take shelter from the cold and inclement weather to wait for her taxi.

46. In those events, a delay occurred in obtaining a taxi due to traffic. The proprietor was preparing to close the premises at 6.00pm. He suggested the plaintiff take a lift from another patron who was at the cafe, namely the first defendant, who was also about to drive the proprietor home. The plaintiff had been driven home by the first defendant on a previous occasion some years earlier. She therefore accepted the offer of a lift home and cancelled her taxi booking. The first defendant dropped off the café proprietor first, and then drove the plaintiff to her home. She was sitting in the rear seat behind the front seat passenger seat: T38.20.

47. When the first defendant stopped his vehicle in the plaintiff’s street a little way along the street from the plaintiff’s house, she alighted from the vehicle. The subsequent events of the accident occurred in darkness: T42.29. The plaintiff’s evidence on those events was as follows:

“Q. So when the car stopped, what did you do?

A. WITNESS: And then I went to close the door, and I realise my coat was stuck in his door, and I dropped my bag and I thought I better do something before he goes fast, and then I started hitting him really hard, his window, with my ring so I can make some noise, and I was calling him, and I didn't get any response from him, and the car was going faster and faster, and then I started taking my coat off, which wasn't easy to do. First I try the right side. It wouldn't come off, and then I try the left side, and got eventually when I went closer for my house, I think one at the time it was one house down, then the coat came off my hand but I don't know, I lost my balance. I hit my head on his car, and then all I remember falling down, and after that nothing, everything went blank. The only thing I can remember is a young man, like there was a man telling me, "Don't move, the ambulance will be here soon." So after that, I don't remember anything. I don't remember how I got into the ambulance, how I went to the hospital, what happened there. The next thing I remember is on the third day when I was having an argument with the doctor because I didn't want to have the operation, but he was saying if I don't I will be paralysed.”

[T41.1 – T41.17]

48. The plaintiff explained that after closing the vehicle door, the bottom right corner of her coat or jacket was caught in the rear car door and she was unable to open the door from the outside with her right hand: T42.9. The plaintiff went on to explain that, in those events, she dropped her handbag to the road in order to be able to hit the window of the vehicle with her left hand, thereby making a contact noise between her finger ring and the window of the vehicle.

49. The described sequence of events that occurred between when the plaintiff exited the first defendant’s vehicle and when she sustained injury was further clarified in cross-examination of the plaintiff by counsel for the Nominal Defendant: T147.22 – T151. That sequence was described by the plaintiff as follows:

1. She stepped out of the vehicle and onto the roadway;

2. She closed the door of the vehicle;

3. She then realised that part of her coat had become caught in the door when the vehicle was leaving and she then dropped her handbag and her shopping bag to enable her to use a free hand to try and free her coat from the vehicle;

4. She then became concerned and tried to pull the coat free but it was stuck and she found that she was unable to open the door;

5. She first started walking along with the movement of the vehicle, and then she ran with it for “another minute”, which I do not take to be a literal description, but she then found that she could no longer run or run any faster;

6. She became increasingly concerned as the vehicle was moving so she started hitting the vehicle with her ring and calling out to the first defendant;

7. As the vehicle continued to move away she was trying to get herself out of her coat and the coat then stretched tight whilst she continued to run, until she managed to free the coat. After she had freed the coat, she hit her head on the side of the vehicle and immediately fell to the roadway. It is not clear as to how she had freed herself. The hospital records later described the “Jacket top as cut”: Exhibit “C”, Vol 1, p 328.

50. The plaintiff explained that when the investigating police interviewed her at Westmead Hospital she told them a taxi had been involved in the incident because, at that time, she was scared of her husband’s reaction if she had said she had accepted a lift from a stranger: T43.10.

51. The first defendant made multiple credit challenges to the plaintiff’s evidence. The content of the challenges included:

1. An allegation of a generalised difficulty in telling the truth: T105.50 – T106.1; T108.33 – T108.38;

2. Alleged untruthfulness involving an allegedly invented account of how the accident had occurred and as to what occurred in the events of the accident: T94.38 – T94.40; T94.46; T96.27 – T96.39; T99.8 – T99.12; T102.14 – T102.39; T103.6 – T103.7; T103.17 – T103.30; T110.1 – T110.16; T145.45 – T146.6;

3. Alleged untruthfulness about the nature and extent of her pre-accident difficulties and her need for domestic assistance: T113.11 – T114.29;

4. Alleged untruthfulness about her daughter’s need for care and the extent to which her need for domestic assistance has increased since the accident: T103.38 – T103.43; T104.25 – T104.31;

5. Alleged exaggeration of her injuries and disabilities: T114.25 – T114.29; T131.34; T134.34; T135.33 –T135.38; T136.1; T136.19 – T136.27; T137.18 – T137.23; T138.7 – T138.16; T138.35 – T138.40; T140.9 – T140.22; T142.1 – T142.16.

52. The second defendant’s cross-examination of the plaintiff (T147 – T153) did not raise any credit-based challenges to her evidence. Instead, it was in effect a recitation, clarification and confirmation of her evidence in chief.

53. Significantly, in that cross-examination by the second defendant, the plaintiff confirmed that once she realised her coat had become caught in the door of the vehicle, she tried to pull it free (T148.7 – T148.18; T148.40), and as the vehicle moved away, she tried to free herself of her coat (T148.47 – T149.1), at which time her coat was getting stretched tighter until a point had been reached when she managed to free her body from the coat whilst she was running beside the vehicle (T149.33) at which time she felt as if it had come off, at which time she hit her head on the vehicle and then fell immediately: T149.6 – T149.29. The hospital notes recorded that the plaintiff had her jacket, which was torn, with her in hospital, where hospital staff had discarded it because it was damaged (Exhibit “C”, Vol 1, p 328), which suggests the jacket, or most if, had become free of the car door.

54. The evidence as to the plaintiff’s injuries, her treatment, and her disabilities, and the domestic care arrangements, will be taken up in my findings of fact on these matters.

First defendant, Mr Harry Sidiropoulos

55. The evidence in chief of the first defendant, Mr Sidiropoulos, was relatively brief. He was aged 80 years at the time he gave evidence: T198.31. He arrived in Australia in 1954 and had not undertaken any education since then: T198.25 – T198.46. He had worked as a truck driver and as a factory worker: T198.50 – T199.2. Some of his answers given in English, were variously, unresponsive or indicative of a lack of understanding of the questions that had been asked of him: T198.31 – T198.38.

56. Mr Sidiropoulos said that he had been at the place the plaintiff described as the Greek Club from about 1.00pm on the day of the accident. He said he left the Club at about 4.00pm or 4.50pm in the afternoon after he had been asked to give the Club proprietor and the plaintiff a lift home: T189.25 – T190.25.

57. Mr Sidiropoulos was asked about his recollection of the surrounding events of the accident. His answer was as follows:

“Q. When you stopped, what did you do to the vehicle, to your vehicle?

A. WITNESS:

A. INTERPRETER: I stopped there, she opened the door, she took her shopping with her, she got out, she closed the door and that's all, I took off, I don't know anything after that.

Q. I want to go back a bit, first of all, when you stopped did you do anything to your vehicle, did you turn the engine off, did you do anything to the gears or what did you do?

A. INTERPRETER: When I stop the car I did not turn the engine off, I just use the parking gear and I waited until she got out of the car and then I put the gear back to drive and I took off slowly.

Q. I want to ask you questions about what you saw Mrs Grigoriadis doing after you'd stopped the vehicle; do you understand that? I'm sorry, sir, I'll interrupt. Do you understand I'm going to ask you questions about what you saw Mrs Grigoriadis doing, I'm not asking you to explain at the moment.

INTERPRETER: I'm sorry.

ROMANIUK: Your Honour, I'm sorry, the fact is the witness said something.

HIS HONOUR: Yes, I need to know what he said.

Q. Can you just tell me what he said please?

A. Didn't see anything. I didn't do anything. I only saw that she took her things that she had with her and got out of the car and closed the door. I didn't see anything else.”

[T191.18 – T191.45]

58. He later reiterated that evidence, as follows:

“Q. What did you see her doing?

A. INTERPRETER: Yes, I turned my head to see Mrs Grigoriadis. I saw her picking up her things that she had at the back seat. She got out of the car, she thanked me for the lift, she closed the door and then I looked ahead of me to check the traffic, I looked at the right hand side and then I took off.”

[T192.3 – T192.7]

59. Mr Sidiropoulos was adamant that he had placed his vehicle into gear and drove off slowly, and did not see or hear the plaintiff thereafter, and he also said that he did not hear any banging, thumping or dragging noises: T192 – T193. He was of the view that the plaintiff could not have had her coat caught in the door of his vehicle because if that were so, he would have heard that the door had not been closed properly: T193.29 – T193.42. He also said there was no sign of damage to the left side of his vehicle: T194.25.

60. It appeared that at the time Mr Sidiropoulos gave his evidence, he had some difficulty hearing the spoken word in Court (T196.42) although it was disclosed that he had a health assessment in 2017, which showed his hearing was normal at that time.

61. The cross-examination of Mr Sidiropoulos raised questions about the reliability of his evidence: T197 – T214; T197A – T214A.

62. The factual description within Mr Sidiropoulos’ more contemporaneous statement dated 18 September 2014, taken some 8 weeks after the accident, differed markedly in some respects from his oral evidence: Exhibit “D1.5”, Tab 1, pp 1 – 7. That statement comprised 27 paragraphs set out over 7 pages including a rough diagram. It was prepared with the aid of an interpreter who read the typed document to Mr Sidiropoulos before it was signed by him. Relevantly, the statement contains the following account:-

“20.   I have known Kiparissa (sic) Grigoriadis for about three months and I have seen her three times at the Coffee Lounge at Harris Park. I was not close friends with her. I do not know anything about her personal life. I am aware that she lives on Hammers Road at Northmead. I would describe her as being 55 to 60 years old. She is about 160 centimetres tall. She is skinny. I am not aware if she has suffered from any health problems.

21.   About 2pm on the 21st July 2014, I woke up at my residential address. I stayed home to 3pm and travelled to a Coffee Lounge in Harris Park opposite the TAB. I do not know the name of the Coffee Lounge. I go there two to three times a week to pass my time and to play cards. I meet friends there. I drove there in my own vehicle and arrived there about 3.30pm. There I met with friends, I do not know their names. Kiparissia arrived there about 5.30pm to 6pm and she talked to other people. I do not recall what she was wearing. The staff member who makes the coffee being George told me that he was going to close the Coffee Lounge and he asked me to drive him home. I had driven him home before and he resides at Harris Park and about half a kilometre (sic) from the Coffee Lounge. Kiparissia was there also and she asked me also for a lift home. I did see her drinking alcohol at the Coffee Lounge. I heard her ask George for a whiskey with coke. She had at least one of these drinks, I do not know if she had more. I saw her drink this drink about 6pm. I did not consume any alcohol as I do not drink. I had previously driven her home once before.

22.   We left the Coffee Lounge about 6.30pm and we then entered the vehicle and I was driving, Kiparissia was in the back seat on the left side and George was in the front seat. I then drove George home and he got out of the car and Kiparissia stayed seated in the back seat. She did not appear to be affected by alcohol and she spoke normally. I then drove from Harris Park and then onto Windsor Road.

23.   About 6.40pm, I made a left hand turn from Windsor Road into Hammers Road at Northmead. I was travelling in an (sic) westerly direction at a speed of 50 kilometres per hour. At the time the traffic flow was light in the same direction I was travelling and light in the other direction. At the time it was night and the weather conditions were fine and the roadway was dry. I was wearing a seat belt. I was not using a mobile telephone. I did not have the car radio on and I was not distracted by anything.

24.   I was travelling along the roadway and Kiparissia said that I had passed her house. I then stopped and the (sic) did a U-turn. She then asked me to stop and I stopped my vehicle. I was parked about one metres (sic) from the gutter. She then opened the back nearside door and she then took out her bags which contained some shopping. As she was doing this I was still seated in the driver's seat and I was looking straight ahead and not looking at her. She then said to me, "Thank you very much." I then looked to my left and behind and looked at her and at this point she was standing outside the car and the door was open and she was standing to the rear of the door. I then saw her close the door by pushing it and the door completely closed. I then looked forward and slowly accelerated and drove off. I did not look behind and I did not look in the rear vision mirrors. I never saw her after she closed the door. I did not see any item of her clothing being stuck in the door. I did not hear her say anything when I drove off. I did not hear any impact with my vehicle after I drove off. There was no one else around at that time. I then drove home and arrived home about 7pm.

25.   I was first notified of this accident three days later when I attended the Coffee Lounge at Harris Park and George asked me what happened to the woman. I told him that I did not know. He told me that she is in Hospital and she had an accident with my car. I did not know anything about it.

26.   I was interviewed by a Constable about three weeks later when they attended my address. I do not know the name of the Constable. I explained to the Constable what happened and the Constable looked at my car and saw that there was no damage. The Constable recorded something in his official Police notebook. I did not read or sign the notebook. The Police have not determined that I was at fault.

26.(sic) I do not know if there was any accident with my car.”

63. Those matters will be taken up in my consideration and findings concerning the factual circumstances of the accident, including a comparison of the content of the oral evidence of the first defendant and the content of his statement as cited above.

64. The parties have agreed that no adverse comment arises from the incomplete state of the first defendant’s oral evidence on account of his health issues which arose before his evidence could be completed.

65. The transcript of the first defendant’s evidence as originally transcribed (T197 – T214) must also be read in conjunction with the version annotated by the Referee: Exhibit “D1.6”. The parties ultimately agreed that the comparative translation differences are immaterial: T386.20 – T386.21; T388.2; T389.46.

Review of expert evidence on liability issues

66. In the paragraphs that follow, the evidence of the liability experts is reviewed. None of the experts were aware of any studies or body of literature which analysed a mechanism of injury to persons whose jackets had been caught in a car door and dragged along until disengagement: T313.3 – T313.27.

Mr Jamieson – reports

67. Mr Jamieson is a well-qualified engineer and surveyor. His first report was dated 28 September 2016: Exhibit “C”, Tab 1, pp 1 – 64. His CV demonstrated that he was well qualified to give opinions on the mechanical aspects of how the plaintiff’s injury could have occurred. He identified the assumptions that he had been asked to adopt: Exhibit “C”, Tab 1, Annexure E, pp 48 – 50.

68. Mr Jamieson set out in some detail the methodology of his analysis and the considerations he took into account. He also undertook some ergonomic tests on a similar vehicle to that of the first defendant to test the plausibility of the plaintiff’s factual account.

69. Mr Jamieson concluded (at p 20 and at pp 25 – 26 of his report), that a long leather coat could easily have been caught in the fully closed double sealed left rear door of a similar vehicle so that it was unable to be pulled free by normal forces, which I interpret to mean something akin to the plaintiff’s ability to pull on the coat. He also concluded, by reference to the roadside lighting, that the presence and the location of the plaintiff should have been quite viewable to a normal driver in the situation of the first defendant at the time the plaintiff had alighted from the defendant’s vehicle.

70. In addressing the issues raised for his analysis (at p 22), Mr Jamieson made estimates that, at the time, the incident in question would have taken about 10 seconds, but probably longer, the terminal speed at the time of the incident would have at that moment required the plaintiff to reach a fast jog speed of no more than 20km/h or 5 metres per second. He postulated other possible events such as the plaintiff having tripped over or fallen.

71. Mr Jamieson identified (at p 23), the safety requirement stated in an elementary driver training handbook, to the effect that licensed drivers should at all times be aware of what is around their vehicle, including pedestrians and recently alighted passengers. He was of the view that in such circumstances, a driver would be expected to either check the left external mirror or look over the left shoulder to ensure the passenger was clear before setting the vehicle in motion. He concluded the plaintiff would have been fully visible to the first defendant had he looked into his left external mirror or over his left shoulder before driving away from the point where he dropped off the plaintiff.

72. Mr Jamieson prepared a supplementary report dated 27 June 2018: Exhibit “C”, Tab 1, pp 65 – 87. That report in reply provided a commentary upon the analysis undertaken by Dr Andrew McIntosh on behalf of the first defendant. In that supplementary report, Mr Jamieson pointed out that whereas Dr McIntosh’s brief was to examine the incident from a biomechanical viewpoint, his analysis which went into precise injury mechanisms, and therefore went beyond the scope of Mr Jamieson’s own analysis.

Dr Gibson – reports

73. Dr Gibson’s 23 page report was dated 9 July 2018: Exhibit “C”, Tab 1, pp 88 – 110. His CV amply demonstrates he is a qualified biomechanical engineer who is qualified to give opinions on mechanisms of injury.

74. Dr Gibson was of the opinion (at p 2), that the plaintiff’s injuries, which included a lateral compression flexion fracture to the cervical spine, and fractures to the right upper extremity and pelvis were due to impact with her right side. He also stated that these injuries were consistent with the applicant being dragged by the first defendant’s vehicle moving after she had exited from the vehicle but remained caught by her coat, resulting in her falling to the road surface on her right side.

75. Dr Gibson also expressed the view (at p 2), that the plaintiff’s injuries were not due to a simple fall onto the road, or a slip on the road, because if such described mechanisms applied, the upper arm injury and the cervical spine injury would be unlikely to have been as severe as had occurred. He also said it was unlikely that the plaintiff’s injuries were due to pedestrian impact from a passing vehicle.

76. In his analysis (at pp 8 – 10), Dr Gibson went on to review the conclusions expressed in reports from Mr Jamieson, Dr McIntosh and Mr Griffiths.

Dr McIntosh – reports

77. Dr McIntosh prepared two reports at the request of the solicitor for the first defendant: Exhibit “D1.1”, pp 1 – 95. His primary report was dated 22 November 2016: Exhibit “D1.1”, pp 1 – 52. His supplementary report was dated 5 August 2018 and comprised a commentary on the analyses contained within the reports of Mr Jamieson, Mr Griffiths and Dr Gibson: Exhibit “D1.1”, pp 53 – 95.

78. In his first report, Dr McIntosh identified his task (at p 3), as being to prepare an accident reconstruction report that addressed three questions; first, the mechanism of the accident as pleaded in the plaintiff’s statement of claim and as analysed in the report of Mr Jamieson; secondly, to look for any errors or inconsistencies that on his analysis may be evident within Mr Jamieson’s report, arising from the assumptions made and the methodology adopted; and thirdly, whether the plaintiff’s injuries were consistent with the proposed mechanism as pleaded in the statement of claim, and in Mr Jamieson’s report.

79. Dr McIntosh gave consideration (at pp 7 – 8), to the police report which in effect concluded that the plaintiff’s eventual account of having caught her coat in the door was credible. He also considered (at pp 9 – 16), the description and diagnosis in the plaintiff’s personal injury claim form, the plaintiff’s statement of claim, the ambulance report, and a number of medical reports that described the plaintiff’s injuries.

80. Dr McIntosh set out his reasoning (at pp 17 – 25), on the three questions he was asked to address and (at p 25), concluded:

1. That the mechanism as pleaded in the plaintiff’s statement of claim and as described in Mr Jamieson’s report “is in totality unlikely”, although in making that statement, he agreed that it was plausible that a person alighting from a vehicle could be dragged along with the vehicle as a result of clothing being caught in the vehicle;

2. That Mr Jamieson’s report was based “on many assumptions and inconsistencies” and he argued that the initial assumptions were “inconsistent with any realistic and credible incident characteristics”;

3. That the plaintiff’s injuries “are not consistent with the proposed mechanism of the accident as pleaded, or as analysed by Mr Jamieson”.

81. Dr McIntosh’s cited opinions require analysis to determine whether they truly represent reliable expert opinions or whether they are simply to be read as an attack on the plaintiff’s case.

82. In his second report, Dr McIntosh noted that on 2 August 2018, he was asked to prepare an urgent report commenting on the reports of Mr Griffiths and Dr Gibson, and to consider a large volume of medical records and reports. He received a letter of instruction to that effect on 3 August 2018 (referred to at p 55), and he then produced his second report comprising 21 pages, on 5 August 2018.

83. In his second report (at p 57), Dr McIntosh noted he had been asked to assume that the plaintiff suffered a right pelvic fracture, no right wrist fracture, and that any injury to the right wrist was soft tissue in nature.

84. He also identified (at p 57), the three questions he was asked to address. The first such question was whether the additional material caused him to alter any aspect of his previous opinion. He answered that question in the negative. The second and third questions called for him to provide commentaries on the reports provided by Mr Griffiths and Dr Gibson. The conclusions reached by Dr McIntosh in his supplementary report were as follows:

“4. CONCLUSIONS

56.   The following is a summary of the opinions presented in section 3.

On balance, it is my opinion that:

1.   A simple fall from standing does not explain the claimant's injuries; including the multiple injury injuries, the multiple injury locations, the injury mechanisms and the injury severities.

2.   There are important inconsistencies between the incident scenario considered by Dr Gibson and the assumptions regarding the incident listed in John Jamieson's 22 September 2016 report.

3.   I disagree with Dr Gibson's analysis of the claimant's injuries and his incident scenario. If the claimant had been dragged by the vehicle and attained some of the vehicle's speed, the claimant would have fallen to the roadway and suffered superficial injuries to her upper and/or lower limbs as a result of sliding, rolling and/or tumbling. These injuries are not documented. If the claimant had fallen at approximately her walking speed, the incident would not be considerably different to the simple fall from standing that Mr Griffiths considered and which Dr Gibson disagreed.

4.   If the Court determines from the medical evidence that the claimant suffered from a combination of acute fractures and pathological fractures, then it is my opinion on balance, that the claimant may have suffered those injuries in a simple fall from standing.

57.   In the context of a road traffic accident, in my opinion on balance, the

most likely explanation for the claimant's injuries is that an unknown vehicle struck her (see paragraphs 41 and 45 of my 22 November 2016 report).”

[Exhibit “D1.1”, p 71]

Mr Griffiths – reports

85. Mr Griffiths’ report setting out his biomechanical analysis, which comprised 27 pages, was commissioned by the solicitor for the second defendant, and was dated 26 June 2018: Exhibit “D2.1”. He had been provided with a copy of the first defendant’s statement dated 18 September 2014, as is extracted at [63] above. He was also given an investigation report.

86. Mr Griffiths commenced his analysis with a review of the reported incident dynamics (pp 5 – 9), and a review of the records of the plaintiff’s injuries (pp 9 – 17), before providing a commentary on the 28 September 2016 report of Mr Jamieson (pp 17 – 21), and the 22 November 2016 report of Dr McIntosh (pp 21 – 23), before setting out his expert opinions.

87. The solicitor for the second defendant asked Mr Griffiths a series of questions which he replicated in his report in conjunction with his answers to those questions (pp 25 – 27).

88. Those questions, and a summary of Mr Griffiths’ responses, were as follows:

1. He was asked whether, on the balance of the probabilities, the plaintiff’s injury could have been received in any of the manners alleged by the plaintiff, and if so, which one was more likely. Mr Griffiths did not answer that question directly in his discussion (at pp 25 – 26), in that he raised the possibility the plaintiff could have been injured as a result of a “simple trip and fall”. Whilst he acknowledged that a trip and fall could have been initiated by some entrapment of her clothing, he said “there was no specific evidence to support that proposition”. He discounted the theory of the plaintiff as a pedestrian, having been struck by a motor vehicle whilst on the roadway;

2. He was asked whether, the plaintiff’s pattern of injury is consistent with:

1. Exiting from the vehicle, having part of her clothing entrapped, and then running alongside the vehicle for 50 metres at a speed accelerating up to 20km/h. In providing an opinion on that question he noted it was not necessary for the plaintiff to have been moving fast to have tripped and fallen and sustained the pattern and the magnitude of the injuries she received;

2. Being struck by the front of a vehicle whilst she was standing on the roadway. His opinion in response was that the plaintiff’s injuries were not typical of a pedestrian having been struck by the front of a motor vehicle;

3. He was asked to provide a commentary on the reports of Mr Jamieson. Mr Griffiths’ disagreement with Mr Jamieson’s report seems to be that it was based on the plaintiff’s account of how the accident occurred (p 17). This question will be revisited in my findings of fact as to the circumstances of the accident. He also criticised Mr Jamieson’s methodology of testing a terry-towelling coat jammed in the door of a similar vehicle as being an invalid comparison (p 18), whilst arguing with Mr Jamieson’s view that a driver in the position of the first defendant, if he had looked before moving off, would have seen the plaintiff standing adjacent to his vehicle (p 18), and he concluded (at p 21), that “a 50 + year old unfit woman, wearing a long coat and carrying shopping bags, could run alongside a car at a speed increasing up to 20km/h for a period in the (sic) of 10 seconds or more, would appear to be beyond the human capabilities of [the plaintiff], that is, it is an unrealistic proposition.”;

4. He was asked to provide a commentary on the reports of Dr McIntosh. Mr Griffiths’ commentary on Dr McIntosh’s report in which he postulated that the plaintiff was injured in a simple fall (pp 21 – 23) was that it was an unsubstantiated speculative theory;

5. He was asked whether the plaintiff’s injury mechanism was consistent with her account of events. Mr Griffiths’ comment in response was that the plaintiff could not have kept pace with the first defendant’s moving vehicle as postulated by Mr Jamieson, her injuries could be explained by a simple fall, and they were not typical of a pedestrian having been struck by a motor vehicle;

6. He was asked whether the plaintiff’s injury pattern made it more likely that she received her injuries either whilst crossing the road (and falling), or being struck by another vehicle. Mr Griffiths’ comment in response was that the plaintiff’s pattern of injury was consistent with a simple fall whilst walking on the roadway. He did not entertain the clothing entrapment mechanism because “there was no physical evidence to make a determination”.

7. He was asked whether the pattern of the plaintiff’s injuries was consistent with any other injury mechanism. Mr Griffiths’ comment in response was to reiterate his view that the plaintiff’s pattern of injury could be explained by a simple trip and fall whilst walking. As to whether this could have been contributed to by a portion of her clothing remaining entrapped within a vehicle, he did not further engage with that possibility because “there is no physical evidence to make a determination”. This raises the question of whether Mr Griffiths’ opinions are based on a complete or sufficiently comprehensive analysis.

Joint report of liability experts

89. On 8 August 2018, the four liability experts met in a conclave and prepared a joint report (Exhibit “D”) which reached the following conclusions:

1. On the question of whether it was plausible that the plaintiff’s leather coat could have become caught in the passenger door of the vehicle, Dr McIntosh, Mr Jamieson and Dr Gibson agreed it was plausible, whereas Mr Griffiths considered it uncommon, unlikely but plausible Exhibit “D”, pp 1 – 2;

2. On the question of whether it was likely, on the probabilities, that the plaintiff would have been able to remain upright whilst still ambulating, and at what speed, Mr Jamieson and Dr Gibson considered the question was unclear, Mr Griffiths considered (with qualifications) the plaintiff’s walking speeds would possibly have been in the range 6 – 8km/h. Dr McIntosh considered the question was vague but he considered the plaintiff may possibly have been able to momentarily achieve a speed of 10km/h: Exhibit “D”, pp 1 – 2;

3. On the question of the balance of probabilities as to the most likely scenario to explain the plaintiff’s injuries, Mr Jamieson excused himself from addressing questions relating to injury mechanisms as being outwith his expertise, whereas Mr Griffiths considered the plaintiff most likely fell on the roadway whilst walking, Dr McIntosh considered the plaintiff had been hit by a vehicle moving along Hammers Road, and Dr Gibson considered the plaintiff had fallen to the roadway whilst at a running pace because her coat had been caught in the vehicle door: Exhibit “D”, pp 3 – 4;

4. The experts were asked to speculate on whether the opinions in sub-paragraph (3) above altered if it was assumed the plaintiff did or did not suffer an injury, whether a fracture or otherwise, to her right hip or pelvis. Mr Griffiths, Dr McIntosh and Dr Gibson adhered to the opinions they had expressed in their original reports. Mr Jamieson properly excused himself from addressing that question: Exhibit “D”. Mr Griffiths accepted that either of the postulated mechanisms was possible. Dr McIntosh accepted that it was possible for the plaintiff to have injured herself by falling onto the roadway. Dr Gibson's opinions did not alter: Exhibit “D”, p 6;

5. The experts were asked to identify the most likely cause of the plaintiff's injury from the vantage point of their particular areas of expertise. Mr Jamieson excused himself from addressing the question. Dr Gibson preferred the mechanism of the plaintiff having fallen whilst walking on the roadway. Dr McIntosh preferred the mechanism of the plaintiff having been struck by a vehicle. Dr Gibson preferred the mechanism of a fall after running at a pace after the plaintiff's leather jacket became caught in the vehicle door: Exhibit “D”, p 6;

303. The plaintiff is presently aged 58 years. In my opinion, the required balance in the assessment of this head of damage is fairly achieved by limiting the projection period for the future domestic assistance claim to 20 years rather than the plaintiff’s remaining statistical mean life span of 30 years, and limiting the vicissitudes discount on that projection to 5 per cent: Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53, at [19].

304. An allowance of 4 hours per week at the updated rate of $49.32 per hour, or $197.28 per week, projected over 20 years on the 5 per cent actuarial tables (x 666.4) and discounted by 5 per cent for vicissitudes yields the sum of $124,894. I therefore assess the plaintiff’s damages for future paid domestic assistance at $124,894.

(d) Future s15B damages – care for daughter

313. The plaintiff claimed $740,214 for the value of future care provided to her disabled adult daughter. That claim proceeded upon the basis of a calculated projection of 18 hours per week for the balance of the plaintiff’s remaining life expectancy of 31 years (x 833.8) at the commercially paid rate of $49.32 per hour, without discount.

314. The first defendant submitted that no allowance should be made for this head of damage: MFI “21”. The first defendant argued that as the plaintiff was in receipt of a carer’s pension in respect of her care of her disabled daughter, where that pension was paid pursuant to the Social Security Act 1991 (Cwth), she is not entitled to damages pursuant to s 15B of the CL Act. That submission derives from the wording of s 15B of the CL Act, namely the description “providing the service has not been paid or is not liable to be paid”, this being the definition of “gratuitous domestic services” in that Act.

315. It is not necessary to determine that point because there is no claim for past gratuitous services within the meaning of s 15B of the CL Act. However, it is necessary to consider the point in a more general sense in respect of the claim for future domestic services relating to the claimed need to provide care for the plaintiff’s disabled daughter.

316. In my view, contrary to the submission of the first defendant, the fact that the plaintiff receives a carer’s benefit in respect of her daughter’s disability does not preclude an award of s 15B damages. This is because:

1. The carer’s benefit is not a payment for defined physical tasks or services provided by reference to an hourly rate. Instead, it is a payment based on the existence of the status of being a carer, having satisfied an assets test. It is a payment in the nature of an income support;

2. If s 15B damages were to be awarded, that event would trigger a repayment of benefit obligation and a period that would preclude the plaintiff from receiving further benefits for a calculated time: s 1160 and s 1184 of the Social Security Act 1990 (Cwth), as explained in Insurance Australia Ltd t/as NRMA Insurance v O’Rourke [2017] NSWSC 494, at [8], [35], [69]-[72], following Redding v Lee (1983) 151 CLR 117; [1983] HCA 16, at [71].

317. To the extent that the first defendant’s argument was based on the decision in Todd v Bluescope Steel (AIS) Pty Limited [2006] NSWDDT 33, the plaintiff argued, correctly in my view, that decision is distinguishable from the facts of the present case because it turned on the factual question of whether payment had been made for the service comprising care: [139]; [141]. The factual distinction identified by the plaintiff in the present case was not identified or considered in that case.

318. Ms Dawson’s initial assessment of the plaintiff’s need for domestic assistance to care for her daughter was the subject of a separate addendum report dated 3 April 2018. In summary, she concluded that the plaintiff had an accident-related need for the provision of assistance to care for her daughter as being 4 hours per week for outings and 2 hours per day, or 18 hours per week, to provide personal care and assistance with showering, brushing of hair, trimming toe nails as required, washing bed linen, meal and snack preparation and the provision of suitable activities. She quantified those recommendations at $1,053.04, being:

1. $51.87 hours for 14 weekday hours ($726.18);

2. $72.70 per hour for 2 Saturday hours per week ($145.40);

3. $90.23 per hour for 2 Sunday hours per week ($180.46).

319. At this point it is relevant to observe that the pre-accident domestic arrangement for the care of the plaintiff’s daughter was an arrangement that was shared between the plaintiff and her estranged husband. The plaintiff has been in receipt of a carer’s pension for that activity.

320. In order to assess this component of the plaintiff’s claim it is necessary to survey the undisputed evidence as to what needs to be done to care for the plaintiff’s disabled daughter to determine whether there is reliable evidence that the plaintiff is no longer able to carry out those tasks herself to meet her daughter’s needs. That survey of the household routine reveals that:

1. A passive supervisory presence in the house is required between 9.00pm and 6.00am whilst the daughter sleeps: T30.36. Pre-accident, that need was fulfilled by the plaintiff and her estranged husband who lives in the separate quarters in the premises;

2. In the mornings between 6.00am and 7.30am the daughter occupies herself: T30.40. Between about 7.30am and 8.30am she is prepared for the day’s activities;

3. In the mornings, between 7.30am and 8.30am, after rising, the daughter is prepared for the day. Breakfast is variously prepared for her by her father or by the plaintiff, a sandwich is made for her, and fruit is cut up for her: T28 – T29;

4. On weekdays, it seems for four days per week, the daughter attends North West Disability Centre. She is collected from home at 8.30am and her father collects her from that centre and brings her home by 3.30pm: T28.26 – T28.45. That regime has prevailed both before and after the plaintiff’s accident;

5. In the afternoon the daughter is occupied with watching television, reading books within her range of abilities, typing on an electronic tablet device or on a computer. This activity is undertaken in circumstances of a general supervisory presence in the background: T29 – T30. The accident has not changed that activity;

6. The daughter cannot be left alone for any extended period: T31.24. She is taken on occasional outings and needs to have her hand held whilst crossing the road: T31.4 – T31.21, T32.7. She needs to be given water when needed: T31.37;

7. Each day Baptist Care provides between half an hour to an hour to organise things for the daughter. This was in addition to the personal care the plaintiff received for about an hour a day for some months after the accident. For about a year, the plaintiff utilised carers from Baptist Care to shower her daughter until she could take over the task herself: T46.41 – T47.49. It seems this assistance was government funded: T47.40;

8. As a result of the plaintiff’s disabilities, she is not as active in assisting her daughter with activities, such as with art and craft, and as a result, she stated that her daughter is not as happy as she was previously: T51.19 – T51.27.

321. Whilst it is agreed that the plaintiff receives a carer’s pension in respect of her daughter and her daughter receives a disability support pension, and whilst it is also agreed that regime existed both before and after the accident (T159.11 – T159.17), in view of the analysis at [314] to [317] above, the carer’s pension is not a relevant consideration.

322. As to the basis of Ms Dawson’s recommendations for the future care of the plaintiff’s daughter, in my view, those recommendations do not sit well with and do not reasonably equate to the evidence of the plaintiff as to the daughter’s needs as summarised at [321] above. I therefore do not accept Ms Dawson’s formulation of 18 hours per week. It does not bear a true or sufficiently similar relationship to the evidence of what the daughter’s needs have been shown to be on the evidence adduced: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].

323. In my assessment, the matters listed at [320] above indicate that the daughter’s needs are largely of a supervisory and organisational nature. In my view, the activities relating to the care of the plaintiff’s daughter do not require the plaintiff to apply and expend her physical and emotional resources beyond her post-accident ability, capacity or endurance so as to justify a claim in respect of this head of damage. Dr Bodel’s opinion to the contrary (at T261.36), is not supported by a level of cogent reasons compliant with UCPR Sch 7 that would make his opinion compelling on this topic. I find that this component of the plaintiff’s claim has not been made out on the evidence adduced. I therefore make no award of damages for the future care of the plaintiff’s daughter.

(e) Future medical and out-of-pocket expenses

324. The plaintiff initially claimed for future medical and out-of-pocket expenses in the sum of $79,239.30. This was later reduced to $50,000: MFI “16”. In contrast, initially the first defendant submitted that the appropriate assessment for this head of damage is $2,500. The first defendant later submitted no allowance should be made to this head of damage: MFI “21”.

325. A survey of the various medical reports tendered with regard to the future treatment recommendations has already been undertaken and this has been set out at [288] to [291] above. In that regard, Dr McClure and Dr Morse agree that the plaintiff would benefit from consultations with a clinical psychologist for treatment of her anxiety, depression and phobic symptoms. They suggested regular treatment for between 10 to 15 sessions at about $250 per session. This equates to $3750.

326. Those experts also agree that the plaintiff requires referral to a psychiatrist for further assessment and treatment, including with psychotropic medication. Although there was doubt that the plaintiff would accept a referral of that kind, consistent with the obligation to mitigate damages, I consider that a buffer allowance should be made for this component of the plaintiff’s treatment needs over the remainder of her lifetime, due to the entrenched nature of her personality disorder, and the effect that the accident has had upon that underlying condition.

327. Dr Bodel supported the claim for an allowance for future treatment in the form of supervision from a general practitioner, medication and physiotherapy: T265.10; T264.36; T265.15. Those suggestions are not capable of precise estimation or projection, but they must nevertheless be taken into account in selecting an appropriate buffer amount for future treatment expenses. Having regard to all of those factors I assess the plaintiff’s damages for future treatment in a buffer amount of $15,000.

(f) Past out-of-pocket expenses

328. The plaintiff made a claim for past out-of-pocket expenses in the sum of $23,497.86. It appears from the evidence that part of that claim was for the plaintiff’s payment to a cleaner to come to the house for 3 hours per fortnight at the rate of $25 per hour, or $37.50 per week: T52.35 – T52.50. On 22 March 2019, after judgment was reserved, the parties identified an agreement that the plaintiff’s past out-of-pocket expenses should be assessed at $16,100. Accordingly, I assess the plaintiff’s damages for past out-of-pocket expenses in the amount of $16,100.

Summary of damages assessment

329. My assessment of the plaintiff’s damages is summarised as follows:

(a)	Non-economic loss	$275,000
(b)	Past domestic assistance	$Nil
(c)	Future domestic assistance	$124,894
(d)	Future care for daughter	$Nil
(e)	Future treatment expenses	$15,000
(f)	Past out-of-pocket expenses	$16,100
Total		$430,994

Disposition

330. The plaintiff is entitled to a verdict and judgment in her favour as against the first defendant, in the amount of $430,994. The Nominal Defendant is entitled to a judgment in its favour as against the plaintiff.

Costs

331. I will hear the parties on the question of the appropriate orders to be made in relation to costs.

Orders

332. I make the following orders:

1. Verdict and judgment for the plaintiff against the first defendant in the sum of $430,994;

2. Verdict and judgment for the second defendant on the plaintiff’s claim against the second defendant;

3. I will hear the parties on the question of costs;

4. The exhibits are to be returned;

5. Liberty to apply on 7 days notice if further or other orders are required.

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Decision last updated: 13 September 2019