Hardwick v Jankowski - [2019] NSWDC 90

District Court

New South Wales

Medium Neutral Citation: Hardwick v Jankowski [2019] NSWDC 90
Hearing dates: 20, 21 March 2019
Date of orders: 01 April 2019
Decision date: 01 April 2019
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
Judgment for the plaintiff with the parties to make submissions as to final orders.

Catchwords:
Motor accidents – competing accounts of collision occurring – whether breach of duty of care – whether personal injury caused by acceleration of abnormal back pathology.
Damages – whether future harm caused be pre-existing injury or defendant’s negligence – whether defendant causes evidentiary onus – future economic loss – future care – future out-of-pocket expenses – whether damages for each claimed head of damage should be discounted by possibility of future harm is caused by pre-existing injury.
Legislation Cited: Civil Liability Act 2002 (NSW)
Motor Accident Compensation Act 1999 (NSW)
Cases Cited: Amaca Pty Ltd v Latz [2018] HCA 22
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
CSR Ltd v Eddy (2005) 226 CLR 1
DC v State of New South Wales [2016] NSWCA 198
Graham v Baker (1961) 106 CLR 340
IAG t/as NRMA Insurance Ltd v Helou [2008] NSWCA 240
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Miller v Galderisi [2009] NSWCA 353
Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94
New South Wales v Fahy (2006) Aust Torts Rep 81-865
Penrith City Council v Parks [2004] NSWCA 201
Purkess v Crittenden (1965) 114 CLR 164
Seltsam v Ghaleb [2005] NSWCA 208
State of NSW v Burton (2006) Aust Torts Rep 81-826
Vincent v Woolworths Ltd [2015] NSWSC 435
Watts v Rake (1960) 108 CLR 158
Category: Principal judgment
Parties: Thomas Peter Hardwick (Plaintiff)
James Jankowski (Defendant)
Representation:
Counsel:
B Tzatzagos (Plaintiff)
D Hanna (Defendant)
Solicitors:
Brydens Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2018/52201
Publication restriction: Nil

Judgment

NATURE OF THE CASE

On 11 January 2017 at about 4:25 PM, the plaintiff, Mr Thomas Hardwick, who at the time was 19 year old apprentice motor mechanic, was driving home from work in a northerly direction along Tivoli Esplanade, in Como in the southern suburbs of Sydney. He was driving a two - door red Toyota Coupe. At about that time, the defendant, Mr James Jankowski, was driving in a southerly direction along Tivoli Esplanade. Mr Jankowski was driving a white Mitsubishi Ute. At the front of the Mitsubishi Ute was a bull bar.
Mr Jankowski had been driving from Tweed Heads. Mr Jankowski’s intended destination was a visit to his sister in Ortona Parade. From his direction, Mr Jankowski had to make a right turn into Ortona Parade, across Tivoli Esplanade.
Mr Hardwick’s car collided with Mr Jankowski’s car, in circumstances that are in dispute. In this proceeding, Mr Hardwick claims damages for personal injury sustained in the accident. He asserts that the collision was the result of Mr Jankowski’s negligence in making a right-hand turn into Ortona Parade from Tivoli Esplanade. In his statement of claim, he asserts that such negligence has caused him back injury. He claims compensation for past and future medical expenses, past future wage loss, past and future superannuation and past and future care. In his defence Mr Jankowski denies negligence, denies that it caused the injury that Mr Hardwick complains of and generally disputes the nature and extent of Mr Hardwick’s alleged personal injuries and the particulars of his loss.
During the trial, the parties agreed on the quantum of past economic loss (including superannuation), past care and past out of pocket expenses.
This meant that the agreed ultimate issues for the Court’s determination are:

whether the defendant breached his duty of care and was negligent;

the nature and extent of the plaintiff’s compensable injuries including:

future economic loss (superannuation);

future care; and

future out-of-pocket expenses.

LIABILITY

Differing accounts of how the collision occurred

Mr Hardwick’s version

I found the plaintiff to be a generally reliable witness: he answered most questions in a straightforward fashion, without embellishment. He did not strike me as trying to concoct or embellish events in a way he thought might advance his interest. He came across, with no disrespect to him, as guileless and, unsurprisingly given his age, inexperienced.
At the time he was driving the Toyota, Mr Hardwick had his “P” plates on the car. Plainly he was a relatively inexperienced driver. In the lead up to the collision, Mr Hardwick said that he spoke to his brother at about Sylvania, about two minutes away. The brother had asked him when he would likely be home: he wanted to play Xbox with his brother. Mr Hardwick says that his mobile phone was in his short pocket. It was not necessary, he said, for him to speak with anyone on his mobile phone: he could do so by using the touchscreen and Bluetooth phone system in the Toyota car he was driving. (It appears that this car – a still relatively recent 2013 model - was obtained from his father’s dealership).
As he was driving in a northerly direction along Tivoli Esplanade, Mr Hardwick says he saw a boat trailer on a bend, on the left side of the curb. This was about 62 m away from the eventual point of collision along the road. Mr Hardwick had seen this trailer before and was familiar with the road. On the day of the accident, the conditions were dry.
As he drove further along, he noticed a Mitsubishi Ute driving in the opposite direction. Mr Hardwick asserts that the driver of this vehicle mistimed his right hand turn into Ortona Parade, turned into his lane and crossed the broken line of the road. Mr Hardwick says that he veered his car to the left but it was too late.
It was put to Mr Hardwick that he had his mobile phone in his hand whilst his car was approaching the subject intersection. It was put to him that his car was travelling behind the boat trailer and that he swerved to get around the boat. Mr Hardwick accepted that he was travelling behind the boat, closer to the curb but disputed any needs to swerve. He said he was driving in a normal fashion he said he did not see the Mitsubishi Ute until he had passed the boat trailer. It was put to him that as he drove past the boat he accelerated. Mr Hardwick denied this.
It was put to him that as he rounded the corner, his vehicle went across onto the incorrect side of the road and he tried to correct this by breaking. Mr Hardwick denied that his vehicle went across to the wrong side of the road. He said that his car appeared to the left only when he saw the Mitsubishi Ute.
He says that the other car hit the driver door of his Toyota with its right side of its bull-bar, virtually directly where he was sitting. He said the Ute was on “kind of an angle” at the point of impact. He said the side airbag was deployed about the right side of his waist. It was put to him that, at the point of impact, the Mitsubishi Ute was stationary. Mr Hardwick denied this and said that it was turning right onto Ortona Parade.
In cross-examination Mr Hardwick said that at the point of impact the Mitsubishi Ute was side on to him. He said that his car was facing straight ahead, following the road. The only point at which he says he tried to veer to the left was when he saw the Mitsubishi Ute try to make it right turn, at a time when the Ute was still moving. Mr Hardwick said that as the Ute was turning, he was breaking.
Mr Hardwick’s car came to rest just beyond the north side of the intersection of Ortona Parade and Tivoli Esplanade.

Mr Jankowski’s version

I thought Mr Jankowski believed in the version of events that he gave evidence about. But it emerged in cross-examination that there were not insignificant differences between his evidence and his recollections of event at the time of the accident, as recorded in written statements. For example, in his evidence, he emphasised that after the impact, Mr Jankowski left his Ute on the road, in situ, with the hazard lights on (and with his children in the vehicle). His contemporaneous typed statement (prepared later in the day) made no reference to this. His position recorded in the typed document was that he turned his vehicle immediately into Ortona Parade, in order to offer assistance to the other driver. Less significantly, perhaps, there was a difference between what he identified, in evidence, as a cigarette packet being in Mr Hardwick’s hand whilst driving an out of control vehicle and identifying, in his earlier typed statement, a mobile phone. When these discrepancies were pointed out, Mr Jankowski responded aggressively and somewhat angrily: he complained of feeling vilified. This leads me to treat his evidence with caution.
Certainly in comparison with the plaintiff, Mr Jankowski was an experienced driver. Mr Jankowski said that on the day of the collision, he was travelling from about the Tweed Valley towards Sydney with his two children (then aged 9 and 10). He was visiting his sister, who lived in Ortona Parade. He said he had made this trip three or four times each year. According to his evidence, Mr Jankowski would not have been unduly tired by the length of drive: he explained that he was used to driving trucks; picking up lawnmowers since he was 17 years of age and was used to driving long distances. So much may be accepted, although of course, even experienced drivers can get fatigued, or distracted, and can exhibit carelessness, which may cause motor vehicle accidents.
He said that as he was driving in a southerly direction along Tivoli Esplanade, towards the intersection at Ortona Parade, he slowed down to about 20 km at a flat stretch of the road: Ortona Parade was on a bend. He was preparing to make a right hand turn. He said that as he approached the intersection he came to a stop. He put the Ute into first gear. He said that he noticed a red vehicle coming along at speed; turning from left to right. He said that the only reason he stopped completely (ie with this wheels stopping) was his consciousness of the presence of the red car. There was no other traffic between his Ute and the Toyota. He said that his Ute was in a stationary position parallel to the centreline. His blinker was put on to signify a right turn, about 20 m back from the intersection. The unbroken centre line was on his right.
It was put to Mr Jankowski that on the day in question, he had been on the road for 12 hours or so and that notwithstanding the regularity of breaks he had taken with his children, he was tired. Mr Jankowski denied this - he said he was used to driving 600 km three days per week.
Although he could not estimate the speed at which the red car was travelling, he thought that it was driving more quickly than the local traffic. He noticed earlier that the red car had nearly rear-ended a boat. He thought that at a point when the red car was behind the boat, the red car might collide with it. Instead, he saw the red car swerve and accelerate out from behind the boat and veered onto his (the southbound) side of the road.
It was put to Mr Jankowski that the boat was about 60 m away from the point of the impact of the collision. Mr Jankowski did not believe that this was so. It was put that, given that distance, there was no particular reason why he would stop at all. Mr Jankowski responded that the Toyota car was travelling at speed.
He said that after the initial swerve to the south bound lane, the Toyota swung back towards the northbound side of the road. Mr Jankowski thought it was driving very fast. He said that the Toyota came out in front onto his car. He said that he noticed the driver of the Toyota the driver was holding the steering wheel carrying a rectangular object, which he thought was a cigarette packet in his hand whilst was on the steering wheel.
At this point, Mr Jankowski said that his car was stationary. He said he was “shitting himself” and tried to swerve left to avoid a collision. But he said his Ute did not move before the collision. He said that it was the right side of the bullbar to his Ute which impacted with the red car. He said that after the Toyota hit the left side of his bullbar, it then skidded and fishtailed past his vehicle and ended on the other side of the intersection.
In cross-examination, he accepted that there were no skid marks at the point of the collision that he had noticed.
Mr Jankowski later told the police that he was not concerned about not receiving Mr Hardwick’s details. This is because his Ute was not damaged, except for a red mark on the bumper the front of the vehicle (there were numerous others) and the vehicle’s age.

Other witnesses?

The defendant did not lead evidence from his two children as to the circumstances of the accident. Counsel for both parties agreed that no inference adverse to either party should be drawn from this.

Aftermath to collision

Mr Hardwick’s evidence

After the collision, Mr Hardwick said he was able to get out of his car and walked towards the driver of the Mitsubishi Ute. He took photos straight after the accident.
He recalls that the conversation commenced with the other driver, Mr Jankowski, asking him if he was okay. He said that he was in a state of shock. Mr Hardwick recalls Mr Jankowski saying “I’m sorry, I didn’t see you”.
It was put to him that Mr Jankowski immediately left his car, with its emergency light on. This was denied. It was put to him that when Mr Jankowski first approached him, Mr Hardwick, with his phone in his hand, said to Mr Jankowski “I must’ve made a wrong swerve”. Mr Hardwick denied saying this. It was put that Mr Jankowski said to Mr Hardwick “we should call the police”. Mr Hardwick denied saying that. It was put to him that he said to Mr Jankowski, “Don’t call the police. I’ll call my dad.” Mr Hardwick denied that proposition. He also denied hearing Mr Jankowski asking nearby onlookers “Can you please call the police?”
Mr Hardwick obtained the driver’s licence details of Mr Jankowski. It was put to him that Mr Jankowski asked him for his details, but Mr Hardwick denied this.
Mr Hardwick rang his father, who worked nearby in Sutherland, only about seven minutes away from the scene of the collision (by car trip). Upon his father’s arrival, Mr Hardwick was lying on the grass next to his car. Mr Hardwick recalls that upon his father’s arrival, his father asked him if he was okay. Mr Hardwick responded that Mr Jankowski’s car had turned into him. At this point, it is noted, the father had received no account of the collision from Mr Jankowski or anybody else.
It was put to Mr Hardwick that he had an argument with his father. Mr Hardwick denied this. He said that he told his father that the other driver had cut the corner and turned right into him.
Mr Hardwick said he overheard a conversation between his father and Mr Jankowski in which, he recalls, Mr Jankowski said that he had been driving from Tweed Heads for over six hours to visit his sister. It was put to Mr Hardwick that his father argued with Mr Jankowski. Mr Hardwick disputed that there was an argument.
He recalls that his father tried to call the police. He says that Mr Jankowski made no offer to call the police. According to his recollection, Mr Jankowski drove his car into Ortona Parade and disappeared for about 20 minutes.
As for Mr Hardwick, he said he went to Sutherland Hospital where an ultrasound was performed. On the same day he said he went, with his father, to Sutherland Police Station. His understanding of the police attitude towards the incident was that it was too minor for each to deal with.

Mr Hardwick (snr)’s evidence

Mr Hardwick’s father gave evidence of his involvement in the aftermath of the accident. Mr Hardwick (snr) was also a technician by trade and was a senior manager with the Lexis dealership.
He gave evidence that he arrived at the scene of the accident at about 4:30pm, having received a phone call from his son. He left work immediately and arrived at the scene about six or seven minutes later. He saw his son lying on the grass. He parked in Ortona Parade.
Upon his arrival, he noticed that his son’s car was headed north, pushed into the gutter curb along Tivoli Esplanade, on a bit of an angle.
When he first saw his son, he felt that his son was in shock. He saw the airbag and was himself alarmed by what that signified. He noticed a big scrape along the driver’s side of the Toyota.
He asked his son how he was and his son explained that he was in a bit of pain and in shock. His father settled him. Mr Hardwick (snr) noticed that the other vehicle was in Ortona Parade, pointing up the hill.
Mr Hardwick (snr) gave evidence of his conversations with the driver of the Mitsubishi, Mr Jankowski. He recalls Mr Jankowski saying “I’m from Queensland. I didn’t see him coming”. He says he asked Mr Jankowski for his driver’s license and insurance details, but that these were not provided. Mr Hardwick (snr) recalled Mr Jankowski saying that he had no insurance.
After this initial conversation, Mr Hardwick (snr) went back to his son and asked him about the accident. He recalled his son telling him that the defendant had turned his car into him.
Under cross-examination, it was put to Mr Hardwick (snr) that the sequence of these conversations was the other way round: he spoke to his son first, and then to Mr Jankowski thereafter. It was put to him that his purpose for speaking with Mr Jankowski was to get the latter to accept responsibility for the collision. Mr Hardwick denied this; saying that he asked him what had happened but, more specifically sought an explanation as to why he turned across the road. It was put to him that in the initial conversation with Mr Jankowski, he said to the latter that “my son is the slowest driver I know”. It later became apparent, when Mr Jankowski gave evidence, that this was a response to Mr Jankowski’s telling Mr Hardwick (snr) that his son had been travelling with an excessive speed.
It was put to Mr Hardwick senior that Mr Jankowski had told him that the accident was not his fault. It was put that there was an inconsistency between Mr Hardwick’s recollections of Mr Jankowski’s statements that he: (a) had turned his car into his son; and (b) he was not at fault. I agree that it would be odd if Mr Jankowski said both of those things.
Mr Hardwick (snr) was challenged about his characterisation of his conversation with Mr Jankowski as an argument. He had said that Mr Jankowski was acting in a “heated” or “aggressive” fashion, but by that, he was referring to his body language and tone. It was put to Mr Hardwick (snr) that it was he who was heated and aggressive.
About 15 minutes later, Mr Hardwick (snr) took some photos. He recalls Mr Jankowski saying to him “I can give you driver’s license number. Can you please change the time of the incident”? It was put that Mr Jankowski asked for license details. Mr Hardwick (snr) rejected this. He accepted that he did not offer them.
Mr Hardwick (snr) said he tried to call Sutherland police on its landline. He said he spoke to a police constable. He also recalled the constable telling him that the accident was too small and the police would not come out. Mr Hardwick (snr) said that he wanted the police to come out as he was concerned about Mr Jankowski.
Mr Hardwick (snr) said that after his son had been at Sutherland Hospital for between one and one a half hours, they travelled to Sutherland police station. Mr Hardwick (snr) expressed his concern that no one had come down to the scene of the accident.

Mr Jankowski’s evidence

In his examination in chief Mr Jankowski said that after the impact, he put his hazard lights on and left his car on the road. He got out and approached the driver of the Toyota. He said that the driver of the Toyota had a mobile phone in his hand. He said that he asked Mr Hardwick “Are you okay?” To which Mr Hardwick responded that he had “swerved the wrong way”. Mr Jankowski says he suggested that they “call the Police”; but that Mr Hardwick said “I want to call my dad.”

It was put to him that Mr Jankowski told Mr Hardwick that he did not see him coming. Mr Jankowski said this was incorrect. It was also put that Mr Jankowski repeated those words to the plaintiff’s father. Mr Jankowski again denied this.
Mr Jankowski recalls that an elderly couple came out from Ortona Parade. He says he asked them to call the police. He accepted that he did not attempt to contact the police himself. He was asked in cross-examination why he did not call the police himself. Mr Jankowski said that he did not have a phone.
He also added that the elderly couple had told him that the police were coming. It was put to him that he did not call the police because he was conscious he did not have insurance for property damage. He said that was not true. It was put that he did not call the police because he did not want any liability associated with the Toyota. That was not true. He said that it (not calling the police) was because there was no damage to himself or his vehicle, he did not call the police in these circumstances: this, he said, was a “country thing”. I do not find this evidence persuasive. If this was truly his state of mind, that is, if he did not care about calling the police, this would be inconsistent with his earlier evidence that he asked for the police to be called.
After his recall to give evidence (following the production of documents on his behalf), Mr Jankowski gave further explanation as to why he did not call the police. Whereas initially, Mr Jankowski said that he did not have a mobile phone (conveying the impression that he did not have one in his possession, or at least one to which he had ready access), Mr Jankowski later said that he did have a mobile phone, but that it was in his car. Asked why he could not call the police himself when he had a phone in his Ute, Mr Jankowski said that his concern was to check that Mr Hardwick was okay. At this point, I add, Mr Jankowski became quite aggressive in his responses in cross-examination.
He says he noticed that Mr Hardwick was on the phone talking to someone. At this point, he said that he went back to his vehicle and pulled up in Ortona Parade. Thereafter, he says he went back to see if Mr Hardwick was okay. Mr Hardwick said that he was. Mr Jankowski showed Mr Hardwick’s license. He explained that this was what he understood he had to do - it was not something that Mr Hardwick asked him to do. He said he noticed that the Hardwick got back on his phone.
Thereafter, Mr Jankowski recalls the plaintiff’s father turned up. He noticed that the father spoke to his son in what, Mr Jankowski, recalls was a heated discussion. At this point he says he went back to his car and waited there.
Mr Jankowski says that he was approached by the plaintiff’s father. He says he told Mr Hardwick (snr) that his son was travelling at speed; to which, Mr Hardwick senior responded, his son was the slowest driver he knew. He says that the father asked him for his insurance. Mr Jankowski said that he did not have any. Mr Hardwick senior responded what sort of person does not have insurance.
Mr Jankowski accepted that his conversation with Mr Hardwick senior was an argument. This explains why he told his children to go to his sister’s place, which was four houses further up Ortona Parade.
He then says that he noticed that the father got on his phone and stayed on it. Mr Jankowski waited. Mr Jankowski then said that the father approached him again. This time he wanted photos of his license, to which Mr Jankowski responded that his son already had a photo of that. Mr Hardwick senior then took photos of his car.
After Mr Hardwick and his father departed the scene, Mr Jankowski said that he walked to where his children were. He also took photos of the section of the road (Vitali Esplanade) from the direction of the Toyota had travelled. He was referred to some photos of the boat trailer (contained in pp 20-21 of Mr Griffiths’ report, see below) and Mr Jankowski identified that this was the boat trailer behind which, he said, the Toyota had emerged. He was shown some skid marks that appeared behind the parked boat trailer and said that they reflected the line that the red car travelled. When asked by his counsel how the skid marks appeared, Mr Jankowski said that they were “fresh”, and not worn.
Mr Jankowski says that it was the plaintiff’s father who was the first person to accuse him of unsafely making a right-hand turn: this was not something Mr Hardwick had accused him of. Mr Jankowski said it was not true that in making a right-hand turn he drove into the path of the Toyota.

Lorena Potter

Towards the conclusion of his evidence, I inquired of Mr Jankowski of the availability of his sister to give evidence relating to the aftermath of the accident. It is to be recalled that following the accident, Mr Jankowski left his children with his sister and indeed was in the process of preparing a typed statement in her home on the day of the collision. I would have been surprised if Mr Jankowski had not given an account to his sister as to what had happened with the incident in the afternoon; which may or may not have been consistent with his account given to others.
His sister, Ms Potter, was made available (at short notice) to give evidence. At a point when the defendant’s counsel asked her about what, if anything, Mr Jankowski said to her about the accident, objection was taken to the question by counsel for the plaintiff. Following discussion with counsel, the questioning was not pressed on the agreed basis that no adverse inference would be drawn against the defendant, arising from Ms Potter not giving evidence of any such account. I draw no such adverse inference in the circumstances.

Expert engineering evidence

Mr Griffiths

The defendant’s expert, Mr Griffiths, is a crash investigation expert. He produced a report for the defendant’s solicitors dated 23 October 2018. He is trained and qualified in Mechanical engineering. His experience has stretched over 40 years, covering involvement in assisting the state government with traffic accident and road safety research, on-scene crash investigation, observation or personal injuries, including attendance at post-mortems and emerging a crash test facility with extensively instrumented test dummies. In his current position, he is the director of Road Safety Solutions. He has lectured in academe and attended many committees and conferences world-wide.
In his report, Mr Griffiths explained that when conducting crash investigation for the purposes of Road safety research, he takes into account all of the available material to compile the most accurate description of the events that occurred. This material included statements of participants and witnesses; any photographic records or sketches recording the physical evidence on the roadway (and, where possible, a site inspection conducted by him); any photographs, reports or descriptions of damage to the vehicles, including, where possible inspection of the vehicles by himself.
Mr Griffiths considered, amongst other things, the versions of events supplied by both Mr Hardwick and Mr Jankowski. This included each party’s drawn sketches of how the collision occurred. Mr Griffith concluded that scuff marks which Mr Jankowski recorded were consistent with a manoeuvre whereby Mr Hardwick encountered the part boat trailer unexpectedly; which led him to a crash avoidance manoeuvre causing him to lose steering control, with a resultant fishtailing manoeuvre; causing the right side of his vehicle to contact the bull bar of Mr Jankowski’s vehicle. It was this series of events which led Mr Griffiths to deduce that Mr Hardwick’s vehicles computer made an “intelligent, evidence-based decision” that it did not need to deploy the side thoracic airbag. This last point followed reasoning (expressed in Section 4.3 of his report) that it is the vehicle’s on-board computer system that determines which crashworthiness system is deployed and when it is deployed. I understood him to reason that the more severe the impact from a certain direction (say, from the side), the more aggressive might be the crashworthy the system that is deployed.
He preferred Mr Jankowski’s version as being consistent with:

the road geometry;

the location of the parked boat trailer;

tyre scuff/swerve marks which (he was asked to assume) were made by Mr Hardwick under the assumption that the plaintiff was avoiding the parked trailer;

the position of Mr Jankowski’s vehicle (he was asked to assume) on its correct side of the roadway waiting to make the turn into Ortona Parade; and

the Toyota’s subsequent impact with the kerb and rest position.

Mr Griffiths said that the photographs indicated a ‘sideswipe’ style encounter which, in conjunction with the decisions made by the Toyota’s sensor systems, was “robust physical evidence” for deducing that the incident did not have the potential to cause injury to a restrained occupant.
As indicated, Mr Griffiths’ opinion was based upon several contentious assumptions that he was instructed to make: that Mr Jankowski was stationary at Tivoli Esplanade waiting to turn right and remained stationery at the time of impact; that Mr Hardwick’s vehicle was travelling at a speed of approximately 70 kph; that Mr Hardwick’s vehicle was pulling out from behind parked boat trailer, leaving skid marks on the road kph; that Hardwick’s vehicle continued past Jankowski’s vehicle and the front passenger side vehicle collided with the gutter on the north-western side of Tivoli Esplanade, causing a black imprint.

Ms Gaffney

The plaintiff obtained two reports from Ms Gaffney. Ms Gaffney is a forensic engineer. She has the qualifications of a Bachelor of Science and Mechanical Engineering from the University of California. Her expertise is in collision reconstruction. She has had 16 years in the field of forensic engineering, which applies physical and engineering sciences to the reconstruction of incidents resulting in personal injury. She was appointed by the NSW Department of Justice to the Road Safety Camera Commission Reference Group, where she serves as an acting board member. She currently is the Principal Forensic Engineer of the firm Hindsight Forensic Engineering. This is a safety advocacy company providing expert forensic engineering advice and analysis for fatal, injury and casualty crashes and incidents.
In her primary report, dated 15 February 2019, Ms Gaffney responded to Mr Griffiths’ conclusions and challenged what she regarded as three critical errors in factual assumptions.
First, she said, it was wrong for Mr Griffiths to assume that the side thoracic airbag did not deploy. Mr Griffiths has subsequently agreed that this is so.
Secondly, Ms Griffith’s’ observations were that the tyre marks seen prior to the parked boat trailer were wrong because the marks were generated by the trailer; and were not attributable to the Toyota.
Thirdly, the scuff marks behind the boat trailer were 62 metres away from the point of impact of the collision, and were not dimensionally consistent with the swerve towards the point of impact.
Fourthly, the post-impact rest position of the Mitsubishi Ute was not as Mr Griffiths had assumed. (Indeed she did not think that he had considered it). Insofar as that vehicle was concerned, if the accident had occurred as Mr Jankowski described it, it would have been expected that the force from the Toyota would have been in a north eastward direction. If that was so, it would be expected that the out of control Toyota would continue to travel in that direction – not towards the northwest kerb of Ortona Parade, as occurred in this case. It would also be expected that the Mitsubishi ute would come to rest east of the collision location; rather than to the west (near the driveway to No. 2 Ortona Parade).
In her report, Ms Gaffney commented on the damage to both vehicles. In relation to the Toyota, she described scratching on the driver’s door with deformation extending longitudinally (linearly) rearward towards the right rear wheel arch. The circumstance that the side curtain and side seat-mounted airbags clearly deployed showed that the required impact severity level (for deployment where injuries can foreseeably occur) was breached. In relation to the Mitsubishi ute, she noted that the vehicle suffered damage to the right front corner of the bullbar.
Ms Gaffney considered that the rest points for the vehicles post-collision were the critical evidence. Having analysed the photographs, she said that the respective vehicles came to rest in a way (depicted in Figure 15 in her report) that resulted in the Toyota vehicle on the kerb, in a north western side direction on a slight angle facing northeast; and the Mitsubishi ute resting near the driveway for No. 2 Ortona Parade. She applied Newton’s Laws (the first law of Inertia): if the Mitsubishi was impacted by an out of control Toyota, the Toyota would not have come to rest on the north-western kerb of the Tivoli Esplanade.
In response to Mr Griffiths’ opinions on the tyre marks behind the parked boat trailer, Ms Gaffney observed that they were running parallel to the direction of the mark. This suggested, she thought, that the tyre generating the mark was not ‘sideslipping’ (“in yaw”), as would typically occur when a vehicle was travelling too fast or overcorrecting around a bend. The marks were generated by a skidding tyre. As the striations in the mark were parallel, this was inconsistent with the notion of a swerving vehicle, and/or an accelerating vehicle. An acceleration scuff has a very dark indentation at the beginning, where the wheel starts to spin. She also noted that the Toyota vehicle was fitted with both an anti-lock brake system (‘ABS’) and electronic stability control (‘ESC’). A vehicle of this kind would not easily lose directional control or produce the tyre mark observed on the roadway in the events described by Mr Jankowski.
Further, based upon the distance (62m) of the scuff marks near the boat to the point of collision, she did not consider that they were attributed to loss of control of the vehicle prior to the accident: they were not generated by Mr Hardwick’s vehicle.
Following her own site inspection, Ms Gaffney thought that the proximity of the parked boat trailer and the width of the tread mark suggested that the mark was generated by the boat trailer being pulled from its parked position towards the roadway, probably whilst its trailers wheels were locked. She was reinforced in this view by observing another substantially similar scuff mark consistent with the track width of a boat trailer and an oil stain in the centre of two parallel tyre marks.
A photograph (figure 31 of her primary report) of the level of sighting that a driver driving in the southerly direction along Tivoli Esplanade that Mr Jankowski was driving in does indicate minimal sight distance towards opposing northbound traffic, though it is pertinent to point out that the photograph was taken some distance behind where Mr Jankowski’s car was at the point of impact of the collision.
Overall, Ms Gaffney’s conclusions in her primary written report were:

That the collision occurred as generally described by Mr Hardwick: the Mitsubishi turning right (west) towards Ortona Parade, impacting the Toyota on its right side, and continuing west where it ended up rested near the driveway for No. 2 Ortona Parade. The collision was sufficiently severe to deploy both the side curtain and side (seat-mounted) thoracic airbags resulting in sufficient impact to cause injuries to Mr Hardwick;

Mr Jankowski failed to give way to Mr Hardwick.

Ms Gaffney prepared a ‘Report Addendum’ to her primary report. This is dated 11 March 2019. This report was prepared following Ms Gaffney’s meeting with Mr Hardwick (and his father) at the collision site on 7 March 2019. In particular, Ms Gaffney sighted in-situ photographs provided to her by Mr Hardwick.
These photos established, first, Ms Gaffney’s own understanding of where the two vehicles rested after the collision. This, as indicated, was pivotal to the opinions she expressed in her primary report.
They also established a faint uniformly curved tyre mark leading to the Toyota’s rest position (Figure 4 to the Addendum report). Ms Gaffney considered that this curved mark was likely deposited by the left front tyre of the Toyota vehicle after the collision impact. The mark’s characteristics – she said – were consistent with the Toyota being impacted on the right side of the Mitsubishi utility. Another similar faint curved tyre scuff, if left by the Toyota, would place it within the northbound land prior to impact.
Further, photographs (Figures 5, 6 & 7) in her Addendum Report all depicted clear braking skid marks which she thought were deposited by the Mitsubishi Ute. All are featured diagonally across the northbound lane at about the point of impact of the collision. They tend to show the Mitsubishi moving at the point of impact.

Joint report

Mr Griffiths and Ms Gaffney met in an expert conclave shortly before trial. A Joint Expert report was signed on 19 March 2019.
Several important facts were agreed: first, the Toyota was carried to its location (northwest of the intersection of Tivoli Esplanade and Ortona Parade) by the momentum of the collision; whilst the Mitsubishi’s parked position (outside No. 2 Ortona Parade) is not consistent with it being carried to that location by the momentum of the collision. If the parallel diagonal skid marks were attributed to the Ute, its post-collision point of rest would have been somewhere in the northbound lane.
Secondly, subject to a caveat (the quality of the photograph), both the side curtain and side thoracic seat airbags were deployed in the Toyota.
Thirdly, the damage sustained by the Toyota was generated due to contact with the right front corner of the Ute’s bulbar. Damage to the left front wheel rim of the Toyota was the likely result of impact with the concrete kerb, just before the Toyota vehicle came to rest.
Fourthly, the damage sustained by both vehicles was consistent with both collision scenarios.
Fifthly, the set of short parallel skid marks oriented at a diagonal angle to the broken centreline (which Gaffney identified in the northbound lane) was consistent with a vehicle turning right and braking to a stop part way through the turn.
Sixthly, Mr Griffiths accepted that the faint tyre scuff line in Figures 4 (near where the Toyota rested) and 7 (in the northbound lane) were very similar in appearance, and appeared to be a continuation of the earlier faint mark.
Seventhly, the tyre scuff marks (near the parked trailer) were positioned approximately 50-60m to the south of the intersection.
The scope of the experts’ disagreement in their joint expert report was as follows.
Mr Griffiths maintained it was “possible” that the tyre marks near the parked boat trailer were attributable to a drive tyre from the Toyota. He disagreed that the boat would likely be towed with its brakes locked for that distance on the route depicted. Ms Gaffney said that the marks did not support the defendant’s ‘swerve’ thesis: they were too far away from the site of collision impact; they were not consistent with a swerving manoeuvre; the Toyota’s ABS and ESC would likely have prevented generation of such a mark. She maintained her view, based upon her personal inspection, that it was the pulling of the boat trailer tyres onto the road that generated the marks.
As to the location of the collision, Mr Griffiths said this was dependent upon which tyre marks were accepted as being attributable to each vehicle. Ms Gaffney was “unequivocal” that the crash must have occurred in the northbound lane.
As to the level of severity of the impact and whether it could generate long-term injury, Mr Griffiths thought that the severity of the crash was insufficient to have this result. Ms Gaffney cited the deployment of both side curtain and side thoracic (seat) airbags as an indication of the impact severity. She added that the deployment threshold selected by Toyota (which she thought exceeded 15km/h) was pitched at a level representing the value at which spinal and other associated injuries could plausibly occur. It was, she thought feasible that the collision forces to Mr Hardwick exceeded the injury threshold.

Mr Griffiths did not respond, in writing, to either of Ms Gaffney’s written reports.

Concurrent evidence

When the experts jointly gave their evidence, the focus of the questioning was upon the 3 disputed topics:

The tyre marks near the parked boat trailer;

The location of the collision;

The severity of the collision required to join injury.

As to the first of these topics, Ms Gaffney maintained her views from her reported evidence that the tyre marks were not from the Toyota; that they were not consistent with that car slipping out of control, fish-tailing or swerving – for that, one would normally see a slipping mark (yaw mark). The marks did not signify any acceleration mark.
Mr Griffiths disagreed. He thought it did look like an acceleration mark. He accepted that he could not attribute it to any vehicle, but thought it was consistent with a vehicle powering out of control. This was only a “possible” view, however.
As to the second topic, Ms Gaffney maintained her ‘unequivocal’ view that the collision occurred in the northbound lane. She referred to the impact of the Toyota producing a mark on the concrete kerb; the mark on the left front rim of the Toyota and the car’s post-impact resting place. The curved thin tyre scuff marks, which she attributed to the Toyota, could not have occurred if the collision had occurred as Mr Jankowski said it had.
When cross-examined by the defendant’s counsel, she accepted that a feature of intersections was that, over time, skid marks would build up; more so than other parts of the road.
Mr Griffiths acknowledged the mark on the kerb, but thought that could be anything. He said that on any view, there were a number of marks on the roadway.
When questioned by the Defendant’s counsel, he said that, having regard to the photograph of the Mitsubishi (depicted in Figure 1 of the Gaffney Addendum report), this was more indicative of the Mitsubishi facing in a straighter position.
As to the third topic, Ms Gaffney essentially reiterated her view on this expressed in the joint report. The impact of the collision was of such severity Mr Griffiths commented upon the development of airbags and how they were supposed to prevent injury. In particular, the sidebags were intended to protect the pelvic area of the body, to offer restraint. The upper torso could take any loading on the joints.
Mr Griffiths was asked to consider the results of the MRI. These he characterised as showing abnormal pathology, rather than any underlying trauma (which would be generated, say, by a fracture). Ms Gaffney said she thought that they revealed some damage, and agreed the MRI scan indicated abnormal pathology on the back.

Consideration of how the accident occurred

Arguments of the parties

In his argument, counsel for the defendant submitted that it was a finely balanced matter as to which version of events I should accept. He emphasised that this was the plaintiff’s case to prove and that unless I was persuaded as its probability of occurring, the plaintiff’s claim must fail.
He did not suggest that much turned upon the relative credit of the plaintiff and the defendant, or their demeanour; and even less upon the evidence of the plaintiff’s father in the aftermath of the accident. In the former regard, he submitted that the defendant was a fair witness. He contrasted this with the plaintiff, who he submitted was a little too precise in his recollections to be believed. It was unnecessary, however, for the defendant to establish, however, that the plaintiff was lying when he denied using a mobile phone in the Toyota vehicle; this being one obvious reason why the Toyota vehicle may swerve out of control.
Counsel for the defendant discounted any reliance being placed upon skid marks at the intersection, or, for that matter, the skid marks near the parked boat trailer. This was, ‘white noise’, he said.
Counsel for the defendant focused upon the physical evidence which he contended was decisive in this case. There were two matters, in particular, that he relied upon.
First, there was the position of impact of the Toyota upon the Mitsubishi Ute. This is the subject of a photo appended to Ms Gaffney’s Addendum Report (figure 1, p 5). A blown up reproduction of that photo (Ex DX5) was presented to Mr Jankowski when he gave evidence. Mr Jankowski placed a marking where he said the Ute was struck: he said it was the front right side of the bumper bar. It was not underneath the bullbar. Parts of that bullbar on the Ute had been struck by kangaroos, but not, according to his evidence, in this accident.
Counsel for the plaintiff accepted that this was where the point of collision with the Toyota occurred. The defendant submitted that this evidence made it less likely to have been caused by Mr Jankowski making a right turn. He said that if it had been a right turn, it would have been expected that the point of impact would have been on the front of the Ute, not the front of the right side. If it was on the side of the bulbar, rather than the front, the angle of the impact of the collision had to be more parallel to the unbroken centre line; and thus consistent with Mr Jankowski’s version of his car being stationary at the point of impact. He referred to Mr Griffith’s evidence supporting this version of the point of impact. Mr Griffiths identified dust in the area where Mr Jankowski identified was the point of impact. This was indicative of cleaning on that right side and suggested that it was the vehicles were more aligned then, say, approaching at a right angle or a 45° angle. Mr Griffiths emphasised that the marks were more consistent with Mr Jankowski’s version, but said that they were not determinative.
Secondly, he drew attention to the extent of scraping on the right side of the Toyota. Counsel submitted that there would have been a greater intrusion into the driver’s door of the Toyota had the accident occurred as the plaintiff had contended. He relied upon Mr Griffiths’ view that the extent of the damage was attributable to the Toyota colliding with a stationary car.
Counsel for the plaintiff, in response, submitted that the (agreed) point of impact on the right front side of the Mitsubishi was not inconsistent with the plaintiff’s version. He referred me to Ms Gaffney’s evidence at trial, where she said that it shows that the orientation of the two vehicles was such that as to slightly change the angle of the Ute in relationship to the Toyota. It did not indicate what side of the centre line that the collision occurred. Ms Gaffney accepted, however, that the point of impact would suggest that the vehicles were more parallel to each other rather than less. (Both experts would have preferred to have looked at the photograph, in digital form, on a screen. Mr Griffiths added that ‘every time you print them (the photographs), they seem to come out differently’).
Counsel for the plaintiff relied upon Ms Gaffney’s evidence of the damage to the Toyota whereby she objected to the notion that there was a sideswiping effect.
Counsel for the plaintiff made a broad attack on the defendant’s credit. He said that the defendant had provided multiple (ie conflicting) versions of material events. He also challenged Mr Jankowski’s evidence of being parallel to the broken line along the road. He was referred to an apparent inconsistency between Mr Jankowski’s evidence in an investigator’s statement (Ex DX2, par 29) that his Ute was “stationary” at the point of impact and other evidence at trial that he “tried to swerve left” (T67.6) as he saw the Toyota coming towards his vehicle. He also referred to the discrepancy between Mr Jankowski’s assertion, in his investigators’ statement (Ex D2, par 34), about skid marks left by the Toyota braking, as it approached the Ute, and the absence of evidence to this effect at trial. There were other attacks on his credit which I will refer to below.

Determination

I prefer the plaintiff’s version of the accident to the defendant’s version as being the more probable account of what occurred.
Speaking generally, to a substantial degree, this is influenced by my preference for the expert evidence of Ms Gaffney over Mr Griffiths. Notwithstanding his eminence and experience, I am mindful that some important assumptions in Mr Griffiths primary report were later shown to be falsified, particularly the deployment of one of the airbags. I also prefer the evidence of Ms Gaffney – who saw the tyre marks near the parked boat trailer for herself – when she said that these were not likely to have come from the plaintiff’s vehicle. They resembled, more closely, the tyre marks of the boat. When confronted with Ms Gaffney’s evidence, Mr Griffiths gave only brief and vague answers on points that she had raised. For example, in answer to Ms Gaffney’s evidence of whose tyre marks were near the boat trailer, Mr Griffiths did not seriously engage in analysis to dispute the evidence that it was more likely to have come from the boat trailer. As I am not convinced from the expert evidence that the skid marks near the boat trailer came from the Toyota, it follows that the only evidence that they are attributed to the Toyota came from the deductions of the defendant. Mr Jankowski, of course, did not see the marks being generated. Mr Jankowski did comment upon those skid marks near the boat trailer, but for reasons I refer to below, on this factual issue, I am not prepared to accept his uncorroborated evidence.
I agree with Ms Gaffney that the ultimate resting place of the two vehicles after the collision is significant evidence. In this respect, Mr Griffiths did not seriously contest Ms Gaffney’s evidence that the resting places of both the Toyota and the Mitsubishi Ute were more consistent with Mr Hardwick’s account rather than Mr Jankowski’s version of how the accident occurred. In particular, he did not cavil with Ms Gaffney’s evidence that if the collision occurred as Mr Jankowski reported, it would have been expected that, with the application of force by the Toyota, the Mitsubishi Ute would be pushed in an eastern direction. That did not occur. Instead, according to the defendant’s version, or at least one of his versions (see below), the Ute more or less remained in the same position. That is, to my mind, a critical matter in favour of the plaintiff’s account. Mr Griffiths did not provide any convincing answer as to how both cars ended where they did otherwise than by my acceptance of Mr Hardwick’s version of what happened.
Like Mr Gaffney, I do not think that it is overly significant that the point of collision was at the right front side of the Ute, rather than directly in front, on the right side: the two points on the vehicle are in very close proximity. It was probable that the ute was at an angle at the point of impact.
I also do not consider that there was likely to be a material difference between the damage that the impact of contact upon the Ute would cause to the Toyota, whether it was marginally to the front of the right side, or to the right side of the front of the Ute. The engineering experts agreed in their joint report that the damage to both vehicles with respect to their interaction was consistent with both collision scenarios.
I think it is also significant that both sidebags in the Toyota deployed. It will be recalled that this was a critical matter that Mr Griffiths relied upon in his primary report. He wrongly assumed that side thoracic airbag did not deploy. Had the collision happened as Mr Jankowski described, I doubt whether it would have been deployed. But its deployment is evidence of impact of a significant magnitude, and more significant than a mere sideswipe. Just as Mr Griffiths ascribed weight to the matter on the mistaken assumption that the sidebag did not deploy, so do I ascribe weight to the circumstance that it did.
Neither did Mr Griffiths grapple with Ms Gaffney’s evidence that the facilities or features within the Toyota rendered it unlikely that the car would so suddenly swerve in the fashion contended for by the defendant.
I think that there was a material inconsistency in the defendant’s position that his vehicle was stationary on the one hand with a slight angle (to the right), at the point of impact (as if his vehicle was a ‘sitting duck’), but that he was also trying to swerve to the left as it saw the on-coming Toyota.
I accord some weight to the presence of skid marks. Although it is true, as Counsel for the defendant submitted, that it may not be uncommon to find such marks at an intersection, there was no indication how busy this particular intersection was, in the sense of how many accidents there had been at this location over the last two years. To the extent that they exist, they are more supportive of the plaintiff’s version of what occurred. That is: (a) the slight scuffed marks near the ultimate resting place of the Toyota were those of that car; and (b) the parallel diagonal skid marks at the location of the collision are to be attributed to the Ute. These marks all appeared in the northbound lane in which the plaintiff was travelling.
Further, although it is true that no onus rested on the defendant, there was little evidence, other than the defendant’s account, to indicate that the plaintiff was out of control and was speeding. This was the defendant’s thesis for how the incident occurred. The Plaintiff had driven along the stretch of road many times before. He was aware of the location of the boat trailer. There was, for reasons referred to below, doubt whether the plaintiff was actually holding any rectangular object at all: if it was a cigarette pack, it was not put to the plaintiff that he was a smoker (or a regular smoker); if it was a mobile phone, the plaintiff was not further challenged when he said he did not need to use a phone as he relied upon Bluetooth system in his car (I put aside doubt as to whether, and when, the defendant was in a good position to see the plaintiff carry a rectangular object, whilst driving). It is not established and, I think, it is contrary to the true position, that skid marks near the parked boat trailer were those of the Toyota, which might establish some sudden swerving or a car out of control. Ultimately, Counsel for the defendant did not rely upon the defendant’s evidence to an investigator that skid marks closer to the vicinity of the impact were caused by the plaintiff braking.
I am conscious that in making these findings, I am rejecting Mr Jankowski’s account. Given the stark accounts of how the collision occurred, in rejecting his evidence, it is plain that I disbelieve parts of his evidence. Mr Jankowski has, at all times, maintained that his Ute was struck by the Toyota; rather than vice versa: this is apparent in the typed statement he prepared on the date of the accident, and the accounts he gave to the police and the insurer. My reasons for disbelieving parts of his evidence arise from a number of matters: first, contrary to his evidence, I find that he did not want the police contacted. If he did, it was a simple expedient for him to have used his mobile phone to do so. It was in his Ute. Later the same day he used it to help him compile a contemporaneous typed statement. He thought that his dealings with the plaintiff and his father were a bit “suss”, which if true, might have made it more likely that he would wish to contact the police himself. But he did not use his phone for this purpose.
Secondly, although it is true that there may be some difficulty in recollection of events that occurred just over two years ago, his omission in his initial typed statement to refer to his leaving his Ute, in situ (with his children in the vehicle) on the road – a very stark event to my mind - is very difficult to reconcile with its inclusion in his evidence in chief.
Thirdly, Mr Jankowski was not insured for property damage purposes, on the date of the incident. I would be very surprised if he was not conscious about his personal exposure, at least, to a property damage claim brought against him by Mr Hardwick. That gave him an incentive to give an account which deflected fault away from him.
Fourthly, his own inquiries of the condition of the road near the parked boat trailer, indicates to me that (notwithstanding his failure to report the incident to the police and give a positive version of what occurred) he was at a very early time, after the collision, on the lookout for evidence which he thought might assist him to defend his position. In circumstances where his explanation for Mr Hardwick’s loss of control was the latter being distracted by the use of a mobile phone (or, as he had identified at trial, a cigarette packet), and the unexpected presence of a parked boat trailer, there was no particular reason why he should want to move closer to the parked trailer to inspect and explain the presence of skid mark tires near the trailer.
His observations of the skid marks near the parked boat trailer were passed on to his insurer, its legal representatives, and thereafter Mr Griffiths, in an attempt to cast doubt upon the plaintiff’s version of events. As I have indicated, even if the Toyota was out of control and steered suddenly away from the parked trailer, I am not persuaded that skid marks from the Toyota would have been generated. I am even less persuaded that Mr Jankowski, on the day of the accident was able to form an opinion that they were “fresh”. Similarly, in his statement to the investigator, he referred to evidence of skid marks from the Toyota, through braking, near the point of impact. That was not pursued at trial other. These were explanations designed to exculpate him.
Fifthly, a critical matter underlying Mr Jankowski’s version was that the Toyota did veer out of control because of Mr Hardwick being diverted by holding, or using a mobile phone. But as became plain upon his recall, there were inconsistencies in Mr Jankowski’s evidence as to whether he saw Mr Hardwick use a cigarette packet or a mobile phone. I prefer to accept Mr Hardwick’s evidence that he did not need to use such phone – the Bluetooth system in his car rendered that unnecessary. There is no other evidence before me that would enable me to reach a conclusion that Mr Hardwick was distracted; or that he was in such a hurry to return home that afternoon that would have prevented Mr Jankowski from seeing him.
Counsel for the defendant said that the defendant did not need to prove any distraction, or the source of any distraction. But the defendant always explained his version of the accident as arising from the plaintiff losing control, and speeding, in order to avoid the boat. That attempt at avoidance could only have been due to the plaintiff unexpectedly coming across this obstacle. Since it was known to be there, the explanation for the plaintiff’s conduct was that he was distracted and not paying attention. That would be a rational explanation for Mr Hardwick’s loss of control and temporary excessive speeding. Absent the distraction, however, it is hard to explain why the plaintiff would need, or want, to have travelled at an excessive speed. No theory was put on the defendant’s behalf. If the issue comes down to whether or not the plaintiff did travel at excessive speed, then whether or not his father was correct when he told Mr Jankowski that his son was the slowest driver he knew, there is no independent corroboration of Mr Jankowski’s evidence in this regard.
In this regard, I also accept that if Mr Jankowski truly did see Mr Hardwick’s vehicle from behind the parked trailer, about 60 or 70 metres away, perhaps more, it is difficult to understand why there was any need for the Ute to be stationary. In saying this, I acknowledge that there was not a great deal of time for him to react; but it was still, probably, enough.
Further, although he denied fatigue, after a 12 hour drive, albeit one punctuated by breaks, I think it likely that, by 4:30pm in the afternoon, after, with the prospect of arriving at his destination looming, and with children in the back – all of the occupants looking forward to arriving at a family relative’s home – there would have been a natural desire in the defendant to end the long car trip as soon as possible. At normal speeds, it was likely that Mr Jankowski misjudged his right hand turn. But if it was not for fatigue, there was also the possibility of distraction in the driver, caused by conduct of his two children in the back of the Ute.

In the circumstances as I have found, I consider that on the balance of probabilities, the collision occurred as the plaintiff had described it.
In coming to the findings I have reached, I do not ascribe much weight to the evidence of Mr Hardwick (snr). Both the plaintiff and defendant effectively gave him accounts of the incident which they have since adhered to all along. I have no doubt that Mr Hardwick’s preoccupation, upon his arrival at the scene, was the safety and health of his son and he would, at any rate, had had a natural predisposition to believe his son’s account. Although an experienced mechanic himself, it appears that his observation as to the damage to the right side of the Toyota was the result of negligence by the defendant, which was not consistent with the engineering experts’ view (ie that the damage was explicable by either account), also probably coloured his thinking. I do not think that there is any doubt that he had an animated discussion with the defendant and that he had blamed the defendant for the incident. There was not much that I drew from his evidence that bore upon the findings I have reached.
Counsel for the defendant accepted that if I should find, as I have so found, that Mr Hardwick’s version of how the accident occurred is to be preferred over Mr Jankowski, then I should also conclude that Mr Jankowski breached his duty of care to take reasonable steps to protect Mr Hardwick’s safety as a road user (as per s 5B of the Civil Liability Act 2002 (NSW)). Instead of taking the reasonable precaution of being stationary, and are waiting for Mr Hardwick’s vehicle to pass, the defendant instead essayed a dangerous right hand turn, causing a collision with the plaintiff’s vehicle in then northbound lane.

MR HARDWICK’S INJURIES

After the collision, Mr Hardwick said he felt pain in his lower back. It was hard for him to sleep that night. He also felt a bit of neck pain. He says that he had shrapnel in his hands.

Consultations with the GP, Dr Pham

The day following the accident, on 12 January 2017, Mr Hardwick took sick leave (he was back at work the next day). Mr Hardwick saw his local GP, Dr Pham. Dr Pham had removed shrapnel from his hands and gave him some Nurafen for his lower back complaints. Dr Pham diagnosed his injuries as muscular skeletal low back pain and whiplash injury to neck. Dr Pham saw him again on 14 January 2017 where Mr Hardwick reported that he continues to suffer neck and low back pain. On examination, Dr Pham found mild tenderness in the cervical spine and mild tenderness over the L3-5 areas.
It appears that when Dr Pham saw him on 12 January, he advised Mr Hardwick to have physiotherapy for both the neck and low back pain. It does not appear that this advice was followed when Mr Hardwick saw Dr Pham two days later. Dr Pham told him that if pain persisted he should see a specialist. Mr Hardwick has not followed that suggestion. Mr Hardwick explained that he does not have time to see a specialist.

The MRI scan

An MRI lumbar spine performed on 7 December 2017, about a year after the accident, indicated evidence of minor ‘disc desiccation’ at L2/3, L3/4 AND L4/5 (the lumbar spine). Lumbar disc desiccation is caused by tissues being dehydrated. The condition will cause pain in the lower back. Its symptoms include stiffness, weakness, burning or tingling sensation, numbness in the legs or feet, reduce or painful movement and sciatica. The conclusion was that there was minor spondylotic change. There was no discrete nerve root compressive lesion.
Although ageing is the most common cause of desiccated discs, it can occur in young people. Accident or trauma is a well-known cause of disc desiccation.
Generally, Mr Hardwick has his own exercise regime which consists of stretches and muscle building. Since the accident, he has generally taken Voltaren and Nurafen tablets. He still takes two or three such pills each week, depending on how he feels.

Dr Giblin’s evidence

Dr Peter Giblin is an orthopaedic surgeon practising in Sydney. Apart from his formal qualifications, counsel for the defendant acknowledged that he had assessed thousands of soft tissue injuries and is well equipped to form a view of an accident profile from motor vehicle accidents.
Dr Giblin saw Mr Hardwick on two occasions. The first was on 26 October 2017. Dr Giblin conducted a physical examination of Mr Hardwick, however at that point there were no radiological investigations. At that point, Dr Giblin said that it may be reasonable for there to be an MRI scan of his lumbar spine and had recommended appropriate imaging studies. That eventually occurred, but only after Dr Giblin’s initial examination. The absence of such investigations, however, means that only limited reliance can be placed upon the currency of Dr Giblin’s first report.
In his first physical examination of Mr Hardwick, Dr Giblin made a “provisional diagnosis” of a soft tissue injury to the lower back, reasonably causally related to the motor vehicle accident. His prognosis was that Mr Hardwick’s condition was stable, his prognosis was probably reasonable; although there would need to be some degree of reservation on the basis of persisting symptoms, nearly 9 months from the date of the injury. Dr Giblin accepted, in cross-examination, that he would ordinarily expect an injury this kind to recover within three or four months. He said it was unusual for there to be ongoing symptoms unless there was a permanent underlying injury.
For soft tissue injuries caused by side-on collisions, it was put to Dr Giblin that the forces on the spine are less severe than for head on, or rear collisions. In particular, bulges, protrusions were usually found in rear end collisions; at least in the majority of collisions Dr Giblin had seen. He agreed with that.
Dr Giblin opined that Mr Hardwick remained fit for his current work environment, that he would have assessed him as being permanently unfit for unrestrained heavy labouring work. He was challenged as to the latter part of this opinion, on the basis that he did not have enough information to form it. He accepted that his was an “intuitive assessment” or the product of “educated speculation”.
He was also challenged in respect to his view that future surgical considerations could not be excluded. He accepted that there was no such present requirement: he certainly could not recommend back surgery at the present time.
Dr Giblin saw Mr Hardwick again in early December 2018. He referred to Mr Hardwick’s reporting to him of his becoming a fully qualified motor mechanic; the absence of any structured treatment for him, but Mr Hardwick also described that he was having some restricted duties at work and reported recurrent low back ache, particularly if he had to do any heavy lifting.
Dr Giblin reviewed Dr Pierides’ reporting of the results of an MRI scan report. He did not see the scan results himself. He noted the conclusion that there was a minor disc desiccation in the discs from L2/3 and L4/5. Dr Giblin said that this was not normal in a 21-year-old man.
Under cross-examination, Dr Giblin explained that disc desiccation refers to the chemical degeneration of the disc. Dr Giblin accepted in cross-examination that in the absence of other indications, it could not be said that disc degeneration was caused by the trauma associated with the collision: it may or may not have been. It is possible that the disc degeneration may have been caused because of a congenital predisposition. If there was early degeneration within the spine, it could become symptomatic.
But in re-examination, when asked to assume that Mr Hardwick sustained two forms of contact: the initial collision with the Ute and then the collision with the left kerb, that he had no injury prior to the accident, Dr Giblin agreed that these were matters capable of rendering symptomatic what may have been an asymptomatic degeneration. The accident, in short, may have accelerated any degeneration of the disc that was likely to happen.
It was put to Dr Giblin that Mr Hardwick did not present with the usual signs associated with trauma: be they protrusions, bulges or angular tears. Dr Giblin accepted that given that there was no suggestion of any leg pain or pinching of nerve roots, it was likely that there was no nerve damage between the discs in the lumbar spine. He disagreed however, with the proposition that disc desiccation could not account for the plaintiff’s symptoms. Dr Giblin believed that it did explain his back symptoms.
It was generally put to Dr Giblin that when it came to his expected future work capacity Mr Hardwick was in no different position to someone with a genetic predisposition. Dr Giblin agreed that if the plaintiff’s plan was to get young apprentices or more junior mechanics to do the heavy lifting duties of a mechanic, then this was a reasonable way for him to proceed with his work. Dr Giblin was not, however, asked to make assumptions as to whether such plan was viable or when it might be capable of being implemented.
In terms of his future domestic assistance, Dr Giblin said he intuitively thought that Mr Hardwick may need some for middle age. This was to avoid his current condition worsening.
In terms of his future employment, Dr Giblin opined that he remained fit for current duties, excluding prolonged and uninterrupted heavy repetitive bending, lifting, twisting or constant labouring. But he also opined that the MRI scan changes were a “harbinger of problems to come.” By this he meant that in his 40s (at least 18 years away), he would have the problem of being a ‘blue collar worker with a bad back’; and that in the latter half of his working life, there was likely to be a progressive and significant diminution in his physical capacity in relation to opportunities for him in the open labour market.
Dr Giblin said that although no further treatment was presently required, some provision needed to be made in his middle age years for assessment and treatment. That might include future surgical intervention: he anticipated that such surgical involvement might involve a simple discectomy (currently costed at $18,000) with a 9-week period of light work duties.
In terms of future treatment, and with reference only to the result of disc desiccation apparent in the MRI scan, Dr Giblin agreed with the proposition put to him under cross-examination, that he could not say whether any future treatment would be specifically referable to the motor vehicle accident, or any genetic condition that Mr Hardwick had. With reference to his raising of the prospect of a future need for a discectomy, Dr Giblin said that it would be necessary to find that bulges existed or that there was interference with nerve roots. These features are not currently apparent in Mr Hardwick.
Aside from surgical intervention, Dr Giblin reiterated the sort of treatment he might anticipate in the future: use of his general practitioner, 18 months of health worker assistance for $5,000, the continued use of medications, when required, and continued use of coping mechanisms. Dr Giblin endorsed Mr Hardwick’s intention to utilise the gym, but he was concerned that this might be a source of potential future injury.
On balance, future treatment should be conservative in nature. He estimated that this would be for $5,000 for a period of approximately 18 months.
In terms of his domestic situation, Dr Giblin noted that, although he is currently independent, by the time he reaches middle age, this would probably change, so some degree of occasional but ever increasing physical assistance would be necessary for heavy domestic maintenance.

Dr Pierides’ evidence

Dr Pierides is an occupational physician. The defendant relied upon his report of 24 May 2018. Dr Pieredes was not cross-examined on its contents.
Dr Pierides noted Mr Hardwick’s reporting to him that he was now pain free other then, when on occasions, he performs heavier activities; following which, and perhaps for a few days afterwards, he experienced some low back pain which could be left or right sided. Upon examination, Mr Hardwick showed a normal range of movement. In particular, whilst in an erect position he was able to display a full range of motion of his lumbar spine; although a full extension was accompanied by discomfort over the lumbar sacral junction.
Dr Pierides considered that Mr Hardwick’s condition has stabilised. He had occasional low back symptoms after excessive activities. He assessed a zero percentage of whole person impairment suffered as a consequence of injuries experienced in the subject accident. Dr Pierides commented upon the MRI scan he interpreted it as being essentially normal. As to Mr Hardwick’s presentation of complaints and disabilities, consider that Mr Hardwick was fit for all employment activities, without restriction Dr Pierides said he may have experienced some symptoms, but they were not reflective of any significant physical injury ongoing.
in terms of his work capacity, Dr Pierides considered that Mr Hardwick was fit for all employment, without restriction, whether as a mechanic or in any other profession that he wished to work in until normal retirement age.
Generally, Dr Pierides found that Mr Hardwick had sustained a soft tissue injury to his lower lumbar region, which should have resolved within 6 weeks of the accident. His prognosis was excellent, in that his injuries had fully recovered, although he had some minor on-going post activity symptoms.
Dr Pierides opined that Mr Hardwick did not require any future treatment. He did not require any domestic assistance, currently, or in the future.
In his closing argument, counsel for the defendant accepted that the plaintiff, at a minimum, suffered a soft tissue injury. But he contests the severity of the injury caused by the collision; particularly its likely future effects upon the plaintiff.

QUANTUM

The ambit of the dispute

The parties agree that the plaintiff is entitled to damages under the following heads of damage claimed by him:

Past out of pocket expenses

$119.10

Past economic loss (including super)

$110.00

Past domestic assistance

$00.00

The disputes concern future out of pocket expenses, future domestic assistance and future economic loss. The defendant submits that the plaintiff should be entitled to no, or barely any, allowance in respect to each of these heads of damage.

Mr Hardick’s pre-accident circumstances

Mr Hardwick was 19 at the time of the accident. His formal education consisted of his finishing year 11 at Gymea Tech. Soon thereafter he took up a motor mechanical apprenticeship for. This is partly consisted of study at Vantage Automotive (at Lidcombe) and partly practical training at Purnell Motors (in Blakehurst).
Prior to the accident the subject of this proceeding, Mr Hardwick had a few minor and relatively insignificant injuries: he had sustained a left wrist fracture in December 2012; he had suffered some bullying at school and when he was 14, had suffered concussion from a scooter accident. There were no residual effects (physical or mental) from these earlier incidents.
Other than his work, Mr Hardwick’s leisure activities principally consisted of his playing outdoor soccer in semi-competitive grade competition: this involved 17 games in the middle of the year and one training night per week. He also went to the gym five or six times a week to do heavy lifting and body weights. This was not a requirement for his work.
He also did some pest control work four or five times a year. That was not particularly remunerative.
A summary of the plaintiff’s tax returns were put before me. They reveal pre-injury net weekly earnings to be as follows:

YE 30 June 2015

$171

YE 30 June 2016

$435

YE 30 June 2017

$509

Mr Hardwick’s post-accident circumstances

After he finished his apprenticeship training (post-dating the accident in March 2018) he has been employed by Purnell Motors. He has become fully qualified as a full-time general motor mechanic. He described himself now as a technician. He currently earns $30 per hour and works 7.6 days each weekday (8am – pm). He gets $45 per hour for overtime.
A typical day for him does require physical exertion: Mr Hardwick explained that he might have to lift wheel check rakes, move gearboxes and there is periodical leaning over the bonnet. He is assisted by his own apprentice (Mr Tom Chitty) to help him with the lifting. It is the apprentice who does much of the grubby or grunt work. This is not something that he had had prior to his accident. He says that he is generally dependent upon his apprentice to help to the left heavy lifting - he could do it if he had to.
Mr Hardwick says that he reports to his workshop controller. In terms of the hierarchy, he is at the second most senior level of technician (there being 6 others at that level).
I referred to his pre-accident earnings in the previous section. Since the accident, his net weekly earnings were:

YE 30 June 2017 $509

YE 30 June 2018 $693 (although this figure awaits the return and may be subject to deductions).

In 2019, the plaintiff is earning $30 per hour for 7.6 normal hours of work, per week. For a 5 day week, that equates to $917 net weekly earnings. That does not include overtime (which he gets paid at the rate of $45 per hour). It also does not include pest control work that he periodically performs.
Mr Hardwick has ambitions to open up his own workshop. Under cross-examination, he explained that his intentions, so far so far as they currently have been shaped, are not just to do the ordinary management and marketing functions of an owner, but also continuing to use tools. Mr Hardwick is not yet ready to take on ownership; he wishes to obtain more experience. When it was put to him that there is no reason (physically) why he could not operate on his own now, Mr Hardwick accepted this but said that would be harder.
In terms of his leisure activities, he tried to go back to his regular level of soccer but found that this was hard. After games he experienced pain in his back. He has converted to a 5-a-side version of the game on a smaller pitch. He is going to the gym only two or three times a week, using free weights and not undertaking the more intense gym activities that he engaged in before the accident.
In terms of his domestic duties, as was the position before the accident, Mr Hardwick has been looked after by his mother and father. His father indicated that like most young men of his age, he did not do much around the house. His father noticed that after the accident, he noticed that his son was having difficulty sitting down, on a hard seat, at the dinner table and had randomly complained about his back. It was fair to say, however, that leading aside dinner conversations and short conversations earlier in the day, he did not see his son much during the day.
Mr Hardwick’s ultimate aim is to buy a house and have his own family. He is apprehensive about his ability to manage a household; being concerned about such things as mowing, undertaking renovations, gardening and washing floors. It was put to him, under cross-examination, that there is nothing to stop him from doing the sorts of ordinary chores, such as cleaning, around the place, Mr Hardwick said it would depend what the level of cleaning was.
Mr Hardwick says that he has had certain days off since the accident. This was not because of any incapacity of his back, but in order to see medicolegal professionals to assist him with the presentation of his case. Other than those professionals, he has not consulted a specialist.
As to his leisure activities, he has returned to a form of soccer, consisting of five aside play on a smaller pitch.
Since the accident, Mr Hardwick has enjoyed holidays in Cambodia and Hawaii.

Consideration of the nature and extent of Mr Hardwick’s injury

In so far as it is relevant to determine the claim for damages in respect to future economic loss (including super), future out of pocket expenses, and future care, there is much common ground between Dr Giblin and Dr Pierides. I did not have the advantage of hearing Dr Pierides, but I found that Dr Giblin was fair and balanced when challenged with matters under cross-examination.
On Dr Pieredes’ assessment, the symptoms of back pain should have gone away and the plaintiff should have fully recovered. He has not. I do not agree with Dr Pieredes’ view that the MRI indicated that the plaintiff’s back condition was normal. This was not only at odds with Dr Giblin’s view, but also the experienced engineering experts for both parties: Mr Griffiths and Ms Gaffney. I prefer Dr Giblin’s view that the plaintiff’s back injury and its present continuing symptoms are most likely attributable to an acceleration of abnormal pathology in the plaintiffs back. I think this is the most likely explanation, rather than the alternative explanations that the injuries were (exclusively) attributable to either the trauma of the accident or to the pre-existing abnormal pathology in the lumbar region of his back. In other words, I do not accept that the defendant has discharged any evidentiary onus it may have (as to which see the section ‘Causation’ below) to say that it is the pre-existing congenital condition of the back that has caused the plaintiff harm since the accident occurred and, more relevantly for the purposes of the issues before me, is likely to continue to cause future harm. I am generally persuaded by the plaintiff that he will suffer future harm because of the accident. I will deal, specifically, with the heads of damage (for the future) below.
I also prefer Dr Giblin’s evidence to Dr Pierides for this reason: if the disc desiccation was an entirely congenital problem, the problem might have been expected to have materialized prior to the accident for an active young man who trades as a mechanic without physical restriction and is a health enthusiast who lifted heavy weights prior to the accident. It cannot just be a co-incidence that disc desiccation only emerged in Mr Hardwick in his late teens or early 20s, unaffected by a moderately severe motor vehicle accident.
I also find that this condition will not improve. It will hereafter require careful management.
I find that:

Prior to the accident, the plaintiff had no history of any lower back pain and was performing, unhindered, the work of an apprenticed motor mechanic;

Mr Hardwick suffered a soft tissue lumbar spine injury.

The injury was not immediately severe – Mr Hardwick has eschewed physiotherapy; has not received a recommendation to see a specialist; and has rarely consulted a general practitioner. In the ordinary course, it would have been expected that his symptoms would have abated, probably within 3 or 4 months of the incident.

In the absence of any bulge, protrusion, or angular tear, it is plausible to say that the disc desiccation was partly attributable to congenital condition in the plaintiff’s back; but because of the impact of the collision (and subsequent force of hitting the kerb), I consider that the accident, and its effects, accelerated, or rendered symptomatic, the pathology in the back.

The accident exposed disc desiccation in the lumbar spine region.

Mr Hardwick still suffers intermittent back pain, when he exerts himself with work (notwithstanding his conscious attempts to limit heavy lifting); or engages in regular leisure activities such as his soccer, and possibly even basic things like sitting down to the dinner table.

I prefer Dr Giblin’s evidence to Dr Pieredes when the former said that his work duties should not extend to unrestrained lifting. In his second report (December 2018), Dr Giblin recorded the plaintiff’s report of suffering back pain when, in the absence of a hoist, he had to take a Ranger Rover tyre off and lift it.

Mr Hardwick is likely to continue suffering such back pain into the future, despite taking precautions for himself. For the present, that can be conservatively treated by his use of over the counter medications;

The Defendant’s submissions

In relation to future economic loss, Counsel for the defendant referred me to s 126 of the Motor Accident Compensation Act 1999 (NSW) (the Act) and to requirement of proof that the defendant’s wrong has deviated the claimant from his or her “most likely future circumstances.” He submits that on Mr Hardwick’s own evidence, it could not be said that the accident has ‘knocked him off his path’. His career trajectory was, at the time of the accident, heading in the direction where he would, in effect, move away from arduous manual lifting towards a more supervisory, even managerial role. Even if he was “on tools”, he had, and would have, the capacity to delegate that part of his work duties to others. It was not enough, Counsel said, to establish the flaring up of symptoms associated with his lower back.
In relation to future economic expenses, the defendant submitted that these would be minimal and only a small buffer could be awarded. Counsel for the defendant referred to the circumstances that there was no specialist referral, or likely referral; or need for physio suggested. Any further expenses might, at most, be incurred through the continued use of over the counter medication.
In relation to future care the defendant accepts that the plaintiff will not live with his parents for all time; that he will need to manage his own household eventually. It was urged that I could not find that the plaintiff would need to pay for future care. There was no reasonable need for him to do so. It offended reason, so the defendant submitted that a mechanic capable of performing manual labour, even if to some extent restricted, was incapable of basic household tasks such as pushing a lawnmower, or a vacuum cleaner. The defendant submitted that, at its highest, Dr Giblin’s evidence was no more than that future care might be needed in the future.

The plaintiff’s submissions

In relation to future economic loss, Counsel for the plaintiff submitted that a sum be awarded of $100,000. Counsel referenced one of Mr Hardwick’s colleagues, being a Level 4 mechanic (the most senior level), who was aged 40. Counsel used this as a yardstick for how long it might take for Mr Hardwick to attain that level. He said seniority came with age. Counsel emphasised that at least for the foreseeable future, the plaintiff wished to remain ‘on tools’ and, to that extent, continued to require mechanical assistance.
Counsel relied upon Dr Giblin’s evidence to submit that his work capacity will diminish. Counsel emphasised that if, as most of the experts (excluding Dr Pierides) found that the plaintiff exhibited abnormal pathology, it was because of the accident that what was asymptomatic was rendered symptomatic. This, Dr Giblin opined, had a long term impact.
Counsel for the plaintiff urged upon me the application of a buffer. He cited the plaintiff’s age, subjective circumstances, including the nature of his qualifications. In measuring his proposed figure of $100,000 and by comparison, if tables were to be used, the plaintiff would be receiving just short of $25 per week.
In relation to future out of pocket expenses, Counsel for the plaintiff submitted that a further sum of $25,000 be awarded by way of buffer. This was to meet the costs of over the counter medication. I am not convinced that it is appropriate to meet expenses of this particular kind. Counsel submitted that the modesty of this sum is reflected by the circumstance that the submitted figure is for a plaintiff with a 63 year life expectancy
In relation to future care, counsel for the plaintiff submitted that a sum of $85,000 be awarded, on a buffer basis. This submission is supported by Dr Giblin’s finding that asymptomatic condition became symptomatic as a result of the accident. The submitted figure would be lower for someone in their 40s or 50s, but the plaintiff was a long way short of that. It was put that whether the plaintiff marries or not, he would likely need to pay someone to some of the heavier chores, such as lawn-mowing and (non-specified) heavier aspects of housework.
To support the claim for future care, the plaintiff relied upon a Home Services Price Guide issued by Australian Unity. The guide indicated that a basic weekday rate for personal support was $53 per day (between 6am and 8pm). The plaintiff’s submitted figure for this award was based on a daily rate of $44-45.

Consideration

Causation

By ss 5D and 5E of the Civil Liability Act, the plaintiff bears the onus of proving, on the balance of probabilities, the two elements of causation, being:

that the defendants negligence was a necessary condition of the occurrence of the harm (factual causation) [1] ;

that it is appropriate for the scope of the negligent persons liability to extend to the harm so called (scope of liability)
1. “harm” is defined in s 5, relevantly, to include personal injury and economic loss.

Counsel made no submission that the circumstances referred to in s 5D(2) were applicable.
In a case, such as the present, where a defendant contends that it is a pre-existing or underlying condition, rather than a defendant’s negligence, that may cause future harm to the plaintiff, there are some additional principles that need to be borne in mind.
First, under general law, the ultimate onus rests on a plaintiff to prove that harm which has been, or more pertinently, will be suffered, as a result of the defendant’s negligence. But if the defendant contends that it is the pre-existing injury, and not injury caused by its negligence, that will cause future harm, it may fall under an evidential burden to prove that, but for the accident caused by the defendant’s negligence, the pre-existing condition would have led to the plaintiff’s post-accident state of health (be it physical, mental or financial): Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164 at 168. In Purkess, the High Court stressed that the pre-existing condition and future probable effects must be established by a defendant with some reasonable measure of precision. It is only once this is done that the plaintiff, who carries the persuasive onus, must satisfy the trier of fact of the extent of the injury caused by the defendant’s negligence.
In Seltsam v Ghaleb [2005] NSWCA 208 at [103]-[105], the Court of Appeal applied Watts and Purkess, but added that the principles in those decisions were to be modified in view of the High Court’s subsequent decision in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. That meant that insofar as it sought to elevate the prospect of future degeneration caused by any congenital condition in the plaintiff (rather than the accident caused by the defendant) the Court is required to evaluate possibilities; not proof on the balance of probabilities. Put simply, a pre-existing condition proved to have possible, not probable, on-going harmful consequences for the plaintiff is not to be disregarded by the Court. This view is also supported by the Court of Appeal’s approach in DC v State of New South Wales [2016] NSWCA 198 per Ward JA [354]-[355] (with whom Sackville JA agreed on this point).
Ultimately, the defendant is only liable for future harm consequential from the injury or harm caused by his or her breach[2] . Another way of expressing the same point is to say that compensation to a plaintiff will be discounted to the extent that there is a prospect that the future harm is suffered by reason only of a plaintiff’s pre-existing abnormal pathology[3] . In saying this, there may be a different level of discounting depending upon the head of damage[4] .
2. State of NSW v Burton (2006) Aust Torts Rep 81-826 at [67]-[80]; New South Wales v Fahy (2006) Aust Torts Rep 81-865 at [119]-[128]
3. IAG t/as NRMA Insurance Ltd v Helou [2008] NSWCA 240.
4. Vincent v Woolworths Ltd [2015] NSWSC 435 at [89]
In this case, the application of these principles in this case will require me to determine:

Whether any pre-existing abnormality in the plaintiff’s back condition, and not the effects of the accident, will cause the plaintiff future harm. If it is only the pre-existing abnormality, and not any causal consequence from the defendant’s negligence (a matter that the defendant must establish with reasonable precision), that will occasion future harm; the defendant will not be liable.

If the answer to (1) is that the accident will materially contribute to the plaintiff’s harm, but if I was also to find that the pre-existing injury would, in the future, have reduced the plaintiff’s earning capacity or cause him to incur expenses to deal with his back injury, in any event, then this will serve (partly or wholly) to reduce the compensation payable by the defendant to that extent; lest he be responsible for loss that he did not cause.

I am to perform the assessment required by (2) with reference to the possibilities; not the balance of probability.

I consider that these principles are not substantially disturbed by ss 5D and 5E of the Civil Liability Act[5] . The test applies for each head of loss alleged[6] .
5. DC v State of New South Wales [2016] NSWCA 198 at [377]
6. Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94 at [67].

Future economic loss

Section 126 of the Motor Accidents Compensation Act 1999 (NSW) provides that:

(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.

Section 127, which relates both to awards for future economic loss, future domestic are and future expenditure, stipulates that the present value of the future economic loss is to be qualified by adopting the prescribed (5%) discount rate.
Section 126 is a modification, or attempted codification, of the common law principles governing awards of compensation for future economic loss, principally Graham v Baker (1961) 106 CLR 340, which posited that what is being compensated for is the loss of earning capacity. It is not enough that the symptoms of an injury may endure, and perhaps impinge upon performance of work duties. It is how the accident has affected the plaintiff’s ability to earn income that is in point: CSR Ltd v Eddy (2005) 226 CLR 1 at [27]; Amaca Pty Ltd v Latz [2018] HCA 22 at [89]-[90]. The task of assessing future loss of earning capacity for a person of young age is notoriously problematic.
Section 126 is in the same terms as s 13 of the Civil Liability Act 2002 (NSW). Applying the provision involves the following steps:

What were the plaintiff’s “most likely future circumstances”, but for the injury. Damages are then awarded by reference to these circumstances.

What is the percentage probability of the plaintiff’s most likely future circumstances occurring in any event. The damages are then adjusted to reflect that percentage possibility.

As to the plaintiff’s most likely future circumstances but for the injury (s 126(1), these commonly concern the plaintiff’s prospects of remaining in employment, or, perhaps becoming self-employed, for what period and what earnings (or profits) were likely to be obtained. The plaintiff put forward very little information about these matters. Such evidence as there was mainly related to Mr Hardwick’s aspirations; not the practicability of their realisation.
The plaintiff was on an intended trajectory of management and ownership of a mechanic business. This would involve being the interface between the shop’s customers and the mechanics, marketing the business, managing the mechanics, in terms of their wages and occupational health and safety issues. Mr Hardwick said that, subject to accruing necessary savings or obtaining finance (externally, if not from his parents), potentially he could open up his own shop tomorrow; although he would prefer to obtain more experience. I think that would be beneficial to him given that much of the experience he has developed to date has been somewhat narrow, dealing with Land Rovers and Jaguars.
Along the path to ownership in his own right, the plaintiff would be likely to wish to continue with an active involvement in terms of performing some mechanical labour, but practices had developed, and are likely further to develop, whereby for really heavy work, he would be assisted by others (or have the capacity to delegate to others). Indeed, despite his current expressed intention for continued manual involvement himself, I think that over time, as he became immersed in ownership, these physical activities would reduce.
There is no evidence before me as to the current or likely profits available from operating such a business. I do not know the dynamics of competition amongst motor mechanic dealerships (including barriers to entry). It is not clear to me how long, even assuming he owned a mechanic’s business, he would be able to operate it for. There was no evidence before me as to the typical life of a mechanic’s shop. I have not even factored in how his current training and skill set will be able to deal with the predicted onset of driver-less cars.
Counsel for the plaintiff invited me to infer that the earnings of a 40 year old motor mechanic might be a reasonable proxy. That would be reasonable enough if Mr Hardwick was unable to operate his own business. In that case, I doubt very much whether he could continue to perform his current work as a labouring mechanic beyond the age of 40.
Without employment or ownership with or of a motor mechanic business, the plaintiff may be expected to struggle to find alternative employment. He finished high school with no Higher School Certificate. His skills are purely directed to those of being a motor mechanic. If work or self-employment in that trade were not available to him, he would have to retrain. In the meantime, he would have real difficulty obtaining alternative work. I agree, generally with Dr Giblin’s characterisation of him, by the time he reaches his 40s, as being ‘a blue collar worker with a bad back’.
I consider that, on the balance of probabilities, the accident will continue to impinge upon the plaintiff’s capacity to earn. Before the accident, he could go about his duties as a mechanic unhindered. His position is very different since the accident. His symptoms of back problems persist, and although attempts are being, and will continue to be, made to cushion him from overt heavy lifting, there is very likely to be risks of further aggravation of his personal injury. The plaintiff is not ready, in the foreseeable future, to perform purely sedentary or administrative tasks in a motor mechanic’s business, whether as an employee or as an owner. He will have to engage in physical work. Such careers may be expected to be finite, but particularly in the case of someone like this plaintiff. I agree that by the time he reaches about 40, he will not likely be able to function as a motor mechanic. Whether he can own or operate a mechanic’s business for long is uncertain. Without employment as a mechanic, his future prospects of securing alternative work, with the current level of his training, are also speculative.

For the purposes of s 126(1), I assume that:

Uninjured by the accident, the plaintiff had the capacity to work as a motor mechanic until about the age of 45;

He had a theoretical capacity to commence ownership of a business, but that was not likely to occur within 3 to 5 years, which period would enable him to accrue the savings and round out his experience in working on different vehicles;

It is uncertain how successful such business operation would have been, even assuming that he commenced it;

In the interim period of 3 to 5 years, he would continue to receive net earnings at the annual sum of about $50,000.

He would also continue to earn some small income from working in pest control, until about the age of 40;

he would, at least for an indeterminate period, have continued to perform labouring duties as an employed mechanic, by himself and unhindered;

However, as he became more senior as an employee (or possible business owner), the level of his supervisory responsibility would increase and the extent to which he would need to seriously exert himself on heavy lifting would reduce somewhat;

for those instances where truly heavy manual work was required to be performed, it is likely that the plaintiff would obtain the assistance of other mechanics (including those more junior than himself, or apprentices);

but for the accident, there was a real prospect that, at an indeterminate point, something may have occurred in Mr Hardwick’s performance of his work which would render symptomatic his underlying disc condition in his lower back;

further and alternatively, there was a real prospect that, for reasons unrelated to his work, any underlying back condition would have been aggravated or accelerated, and impaired his capacity to work as a mechanic;

attempts would, in the two categories of circumstances referred to in (i) and (j), have been made to restrict the circumstances in which Mr Hardwick would engage in heavy lifting

Nevertheless, being in the trade in which the plaintiff is employed, it is not realistic to suggest that the plaintiff could be shielded, altogether, from the risk of further acceleration or exacerbation of his back problem and should that occur, it would wreak significant economic disadvantage upon him, having regard to the absence of alternative skills, training and education that he has substantially reducing his earning capacity.

As I noted, Counsel for the plaintiff urged upon me the award of a buffer sum. Where the impact of an injury caused by negligence upon the claimant’s economic benefit from exercising earning capacity is difficult to determine, it may be appropriate to award a sum by way of ‘buffer’: Penrith City Council v Parks [2004] NSWCA 201 at [5], [10], [58] (see also the authorities, including , but not limited to Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [40], cited in Vella, Annotated Civil Liability Act 2002 (NSW) [2.13.050], p 327 . In Penrith City Council, McLellan AJA in that decision noted that the equivalent provision to s 126 does not preclude a modest award for the chance that the plaintiff may be disadvantaged in the future. An award of a buffer necessitates a finding that loss of earning capacity will be suffered, and that that has been caused by the negligence. Once a buffer is deployed, for the purposes of s 126(2), the percentage adjustment is taken to be nil.
In my opinion, the accident accelerated a previously asymptomatic back problem. For a trained motor mechanic with no other qualification, even with the continuation of the current sensible precautions and prudent management being taken in respect to his labouring activities and even with the prospect that he might move into ownership, it is more probable than not that with that back problem, the plaintiff will be economically disadvantaged in the future.
I find that the defendant’s negligence has likely impaired the plaintiff’s earning capacity. I consider that a buffer is appropriate in the circumstances. I do not consider that the defendant has discharged an evidential burden that the plaintiff’s future economic loss will be caused by abnormal pathology in the plaintiff’s back prior to the accident. Nevertheless, on the assessment of damages for this head, I also consider that the sum awarded by way of buffer should be discounted to reflect the real prospect that the plaintiff’s possible congenital back condition would itself have singularly hindered the plaintiff’s capacity to earn.
I find that, for the purposes of s 126(2), the percentage adjustment is nil.
I would have been inclined to accept the plaintiff’s submission that a buffer be given for future economic loss (including superannuation) of $100,000, but with the discount I have referred to I consider that the appropriate sum for future economic loss (including superannuation) should be $70,000.

Future out of pocket expense

There were two aspects to this claim. First, there was the continued likely on-going need for over the counter medication. The need for this future medication has been caused by the defendant’s negligence.
Second, there is the question of whether surgical treatment would be required. This was tentatively suggested in Dr Giblin’s primary report (without the benefit of radiological investigation), but subsequently affirmed by him in his supplementary report: he identified the prospect of a simple discectomy. He accepted that a discectomy would be premised upon a bulging part of the disc and interference with nerve roots. But although there are no present signs or need, I regard it as very likely that Mr Hardwick’s back will deteriorate in the longer term, to make it more likely than not that surgery will be required.
I also regard the defendant’s negligence caused that acceleration of the disc degeneration and will likely materially contribute to the need for the surgical intervention.
I accept the sum of $18,000, in current dollar terms for such procedure. But associated with that surgery there are likely to be other incidental expenses, such as the rehabilitation associated with physiotherapy and other things. I note also that Dr Giblin considered that future surgical intervention might not be limited to a discectomy.
The plaintiff submits that a buffer sum should be imposed. The plaintiff contends for a sum of $25,000, reflecting $25 per week over the claimant’s life expectancy. The defendant agrees that if allowance is made for this head, it should be by way of buffer sum.
I consider that an appropriate sum for the conservative treatment, involving medication and the probability of future surgical intervention and incidental management or treatment before and after would warrant an award for this head of damages of $40,000. But for the same reasons I indicated in relation to the claim for future economic loss, I consider that it is appropriate to discount that amount by the prospect that the plaintiff’s pre-existing back condition, may itself, cause the plaintiff to incur expense to treat his condition. I find the appropriate sum for this head of damage to be $25,000.

Future care

In considering this head of damages, I have taken into account the circumstance that it is very likely that the plaintiff will require future surgical treatment. Upon the assumption that such surgical treatment will likely be successful, that may serve to mitigate the need for domestic assistance to the plaintiff caused by the defendant’s negligence. But for this assumption having been made, there would have been a greater need to consider future care.
Plainly, Mr Hardwick does not need to acquire commercial domestic assistance now or in the short term. He lives with his parents and, according to his father, did little around the place before the accident. He had his parents do things like his laundry. There was very little indication that this position has changed that much since the accident.
The claim is pitched at what will occur when he leaves home, and can no longer depend upon his parents’ assistance. It is plainly uncertain as to what kind of accommodation he will take, but, absent financial assistance from his parents or elsewhere, it would be expected that it would be fairly modest. It will also be affected by personal matters, such as whether a marital relationship might mean he shares accommodation with someone else.
Counsel for the plaintiff relied upon the Court of Appeal’s decision in Miller v Galderisi [2009] NSWCA 353. There the Court said (at [18]):

There is no reason in principle why, if the evidence justifies it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases.

In that case the Court of Appeal was considering the situation as to what would occur when the claimant, in that case (61 years old), ceased to receive gratuitous domestic assistance from his wife and, to a lesser extent, from his son. In that (future hypothetical) event, the Court of Appeal noted that domestic assistance would, foreseeably, be required from a commercial provider.
At [22], and with reference to Malec v JC Hutton principles, the Court of Appeal also noted that in the assessment of what might be needed in the future to sustain such award was “a form of speculation guided by knowledge of the plaintiff’s past and expectations, derived from general experience, as to the future.” The Court of Appeal further emphasised (at [24]) that if allowance was to be made for the provision of domestic assistance on a commercial basis at some future point in time, it would require the plaintiff’s particular circumstances to be taken into account. The Court said that it was inappropriate to pluck a figure out of the air because there was a remote, though not entirely fanciful, chance of a need for commercial domestic assistance in the future.
I accept the submission from Counsel for the defendant that what is required is (likely or probable) demonstrable need that Mr Hardwick will need to pay for commercial care services caused by the accident.
I am not satisfied that any particular need has been established in any event. Counsel for the plaintiff pointed to future lawn mowing activities and unspecified heavy household chores. It is not clear to me that he would be incapable of the former and that there will be a need for commercially provided services in relation to the latter.
If I am wrong, however, the surgery that I consider that this plaintiff is likely to require should mitigate the extent to which he requires this head of damages as a result of the defendant’s negligence.

Orders

In summary, there should be Judgment for the plaintiff, with the quantum made up as follows:

Past economic loss (incl super)

$110.00

Future economic loss (incl super)

$70,000.00

Past care

0

Future care

0

Past out of pocket expenses

$119.10

Future out of pocket expenses

$25,000

$95,229.10

I give the parties the opportunity to make submissions as to the orders necessary to give effect to these reasons. This includes orders for interest and costs. Such submissions should (with any supporting evidence) be sent to my Associate within 7 days of the date of these reasons.
Absent any application to the contrary, I will thereafter make final orders on the papers.

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Endnotes

Decision last updated: 01 April 2019

Medium Neutral Citation:	Hardwick v Jankowski [2019] NSWDC 90
Hearing dates:	20, 21 March 2019
Date of orders:	01 April 2019
Decision date:	01 April 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	Judgment for the plaintiff with the parties to make submissions as to final orders.
Catchwords:	Motor accidents – competing accounts of collision occurring – whether breach of duty of care – whether personal injury caused by acceleration of abnormal back pathology. Damages – whether future harm caused be pre-existing injury or defendant’s negligence – whether defendant causes evidentiary onus – future economic loss – future care – future out-of-pocket expenses – whether damages for each claimed head of damage should be discounted by possibility of future harm is caused by pre-existing injury.
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accident Compensation Act 1999 (NSW)
Cases Cited:	Amaca Pty Ltd v Latz [2018] HCA 22 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 CSR Ltd v Eddy (2005) 226 CLR 1 DC v State of New South Wales [2016] NSWCA 198 Graham v Baker (1961) 106 CLR 340 IAG t/as NRMA Insurance Ltd v Helou [2008] NSWCA 240 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Miller v Galderisi [2009] NSWCA 353 Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94 New South Wales v Fahy (2006) Aust Torts Rep 81-865 Penrith City Council v Parks [2004] NSWCA 201 Purkess v Crittenden (1965) 114 CLR 164 Seltsam v Ghaleb [2005] NSWCA 208 State of NSW v Burton (2006) Aust Torts Rep 81-826 Vincent v Woolworths Ltd [2015] NSWSC 435 Watts v Rake (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Thomas Peter Hardwick (Plaintiff) James Jankowski (Defendant)
Representation:	Counsel: B Tzatzagos (Plaintiff) D Hanna (Defendant) Solicitors: Brydens Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2018/52201
Publication restriction:	Nil

Past out of pocket expenses	$119.10
Past economic loss (including super)	$110.00
Past domestic assistance	$00.00

Past economic loss (incl super)	$110.00
Future economic loss (incl super)	$70,000.00
Past care	0
Future care	0
Past out of pocket expenses	$119.10
Future out of pocket expenses	$25,000
$95,229.10