Hyjer v Lopes - [2018] NSWDC 8

District Court

New South Wales

Medium Neutral Citation: Hyjer v Lopes [2018] NSWDC 8
Hearing dates: 20 November 2017 – 22 November 2017; 14 December 2017
Date of orders: 31 January 2018
Decision date: 31 January 2018
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff;
(2) The parties are to bring in Short Minutes of Order within seven days reflecting these reasons;
(3) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed;
(4) Liberty to the parties to approach the court if a different costs order is sought to that set out in (3) above;
(5) Exhibits to be returned in 28 days.

Catchwords: Torts-negligence-motor vehicle accident-conflicting expert evidence-extent to which the plaintiff’s future earning capacity has been affected-approach to the award of a buffer for loss of future earning capacity-question of whether there is a need for future commercial care
Legislation Cited: Civil Liability Act 2002 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Boateng v Dharamdas [2016] NSWCA 183
Calcagno v Dent [2015] NSWDC 308
Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Curtis v Harden Shire Council [2014] NSWCA 314
Dent v Calcagno [2016] NSWCA 289
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
Logar v Ambulance Service of NSW Sydney Region [2007] NSWCA 274
Manley v Alexander [2005] HCA 79; 80 ALJR 413
Marien v Gardiner [2013] NSWCA 396
Mason v Demasi [2009] NSWCA 227
Miller v Galderisi [2009] NSWCA 353
New South Wales v Moss (2000) 54 NSWLR 536
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529
Smith v Alone [2017] NSWCA 287
Sretenovic v Reed [2009] NSWCA 280
Strong v Woolworths Ltd (2012) 246 CLR 182
Townsend v O’Donnell [2016] NSWCA 288
Wallace v Kam (2013) 250 CLR 375
White v Benjamin [2015] NSWCA 75
Category: Principal judgment
Parties: Drew Garrett Hyjer (Plaintiff)
Antonio Goncalves Lopes (Defendant)
Representation:
Counsel:
H Halligan (Plaintiff)
C Allan (Defendant)
Solicitors:
Beilby Poulden Costello Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2016/00365375

Judgment

In these proceedings, the plaintiff, Mr Drew Garrett Hyjer, seeks damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act") for personal injuries alleged to have been suffered by him as a result of the negligence of the defendant in driving a motor vehicle which collided with the plaintiff’s motor vehicle on 28 January 2015.
At the relevant time the plaintiff, who is an American citizen, was employed in Sydney in Australia. The plaintiff returned to the United States in 2016 and remains in fulltime employment. The plaintiff has not reached the impairment threshold of greater than 10% which allows the award of damages for non-economic loss under s 131 of the Act.
The plaintiff’s claim was limited to one for past and future out-of-pocket expenses, a buffer for future loss of earning capacity and an amount for future commercial care.

The pleadings

The plaintiff relies on a Statement of Claim filed on 6 December 2016. The Statement of Claim pleads that on 28 January 2015 at approximately 8am the plaintiff was driving his motor vehicle and commenced to drive in an easterly direction along Francis Street at Bondi in Sydney. It is pleaded that at that time the defendant was driving a motor vehicle which was a Ford taxi station wagon also in an easterly direction along Francis Street “when he attempted to overtake the Plaintiff’s vehicle and he collided at speed with the front section of the Plaintiff’s motor vehicle”: paragraph 4. It is alleged that as a result of the accident, the plaintiff suffered injury caused by the negligence of the defendant. It is said that the defendant, inter alia, was driving his taxi at an excessive speed, was failing to keep any or any proper lookout, was failing to exercise due and proper care in driving the vehicle and failed to stop, swerve or slow down to avoid the collision.
The injuries alleged to the plaintiff were:

Whiplash injury to the cervical spine; and

Injury to the lower lumbar spine. A very considerable list of continuing disabilities was claimed including continuous headaches, continuous pain and aching in the cervical spine, restriction of movement of the cervical spine, continuous pain and ache in the lumbar spine, restriction of movement of the lumbar spine, inability to lift heavy objects, inability to walk long distances, inability to sit for any lengthy period of time and continual spasm in the cervical and lumbar spine.

In the Statement of Claim the plaintiff claims:

Past out-of-pocket expenses;

Future out-of-pocket expenses;

No loss of past earning capacity;

A future loss of earning capacity, essentially on a buffer basis; and

A future claim on a commercial basis in relation to assistance with very heavy or repetitive domestic tasks.

The defendant filed a Defence on 1 March 2017. The defendant disputes liability. The defendant admits that the plaintiff sustained soft tissue injuries to the cervical spine and the lumbar spine in the accident but does not admit the extent of the injuries relied on by the plaintiff in the Statement of Claim: paragraph 5. Contributory negligence is also pleaded.

The plaintiff’s evidence

Photographs taken on the day of the accident

Exhibit A in the proceedings was five photographs which the plaintiff stated that he and his wife took on the day of the accident after the accident had occurred.
The plaintiff gave evidence that it was raining at the time of and soon after the accident. This is supported in the photographs by the road appearing to be wet and in one photograph by a man carrying a black umbrella.
The photographs show extensive damage to the front driver’s side of a black motor vehicle identified by the plaintiff as being his motor vehicle including extensive damage to the driver’s side door. In the photographs the plaintiff’s car appears to have pulled out slightly from the left-hand kerb lane of a two lane street. It shows the plaintiff’s car to be on the downward side of a crested hill. The photographs also show a white taxi with moderate damage to the front passenger side fender and front light area. The photographs are generally consistent with the plaintiff’s description of how the accident occurred.
The plaintiff’s oral evidence, which I will discuss in some detail shortly, was to the effect that the force of the collision pushed the plaintiff’s car about half a metre. The photographs do not show that the plaintiff’s car had exited the kerbside parking location completely.

The oral evidence of the plaintiff

Oral evidence was given by the plaintiff by video-link.

Evidence in chief

The plaintiff is currently living in California in the United States of America. He gave evidence that he was born in December 1987 and was thus 30 at the time of the trial. He said he came to Australia for work in October 2012, having secured employment with Caltex Australia Petroleum Pty Ltd (“Caltex”). This was initially as a marketing graduate and then as a business analyst. The plaintiff stated that he had a Bachelor of Arts in Business from University College Berkeley in the United States.
In his evidence in chief, the plaintiff indicated that as at the date of the accident, 28 January 2015, he was living with his fiancée and now wife Ms Hyjer (nee Miller) at an apartment in Francis Street in Bondi.
In relation to the collision, the plaintiff indicated that he and his fiancée were leaving to go to work. It was just before 8am and there was light rain. He stated that he and his fiancée got into his black motor vehicle which was parked on the left kerb of the street and both fastened their seatbelts. He said that he turned the car on and checked the rear vision mirrors, being the right hand rear vision mirror and the central rear vision mirror. He then put on his indicator and both he and his wife looked around to see that the area was clear. The plaintiff stated that his wife was an “anxious” passenger and she was overly cautious in relation to ensuring that no-one was coming. He said that the road was narrow, it was a two-way street and that cars were parked on both sides. He said that there was a car parked immediately in front of him but there was a car length vacant behind him. Mr Hyjer stated that he saw his wife turning her body around and looking out the rear passenger window of the car.
The plaintiff noted that Francis Street faced the ocean in the direction the car was located and the street included a hill with the part where the car was located being on the downward part of the hill below the crest. In cross-examination the plaintiff noted that the crest of the hill was about 50m behind where his car was. The plaintiff indicated that his wife stated to him words to the effect “it is okay to go” and he said he confirmed that as he also was looking to ensure that the coast was clear. As he saw no traffic and he had his blinker on he slowly proceeded to move away from the kerb: T6.30; T7.44. When the car was about at a 45° angle to the kerb, having pulled away from the parking spot, his wife exclaimed “Drew” and a taxi approaching over the hill at what the plaintiff said was “way over the speed limit” in due course collided with his vehicle: T8.4-.15. The plaintiff noted that he could not speed off or reverse in time to avoid the accident and he heard both the impact and also the sound through the closed windows of the taxi skidding, having applied the brakes before the impact of the collision. The plaintiff indicated that he felt a whiplash movement and that he hit his head on the side of the door. He said he was in shock but was concerned for his fiancée who cried out in pain and had started to cry.
The plaintiff said that despite the door to the car being damaged in the accident that he was able with some difficulty to open the door and he exited the vehicle. He stated that the taxi reversed after the impact a few metres to allow him to get out. He described the impact as being “big” and that it had caved in the driver’s side door and pushed his car: T9.14.
The plaintiff said that he then went over to the passenger side where he consoled his wife for a period. After about a minute, he then proceeded to the taxi driver’s vehicle. It was raining heavily at the time and he sat in the passenger seat of the taxi. The plaintiff gave evidence that he had a conversation with the taxi driver in words to the following effect:

“Driver: “I'm sorry, I'm sorry I couldn't stop.”
Plaintiff: “You had plenty of room, you had plenty of time to stop. Why didn't you stop?”
Driver: “I'm sorry I’m sorry.”
Plaintiff: “Are you going to exit your vehicle to look at the damage?”
Driver: “Now I have to get my light fixed. This is going to ruin my day.” (T11.1-.16)

The plaintiff said that he exchanged particulars with the driver of the taxi and found out that his name was Mr Lopes. The plaintiff stated that at no time did Mr Lopes suggest to him that he (the plaintiff) had pulled out from the kerb abruptly without warning. He noted that the defendant had apologised for not being able to stop.
Soon after, Mr Hyjer said that he attempted to call the emergency number to speak to the police. The operator asked whether he needed an ambulance and when he said he did not he was told that he did not fit the criteria for a police officer to write a report. Mr Lopes then left the scene and the plaintiff drove his wife to Prince of Wales Hospital at Randwick for treatment. He said he was at the hospital for a few hours while his wife had x-rays.
The plaintiff noted that his pain “settled in” as the shock wore off: T12.23. He noticed that he had neck/lower back spasms particularly in the lower back. He also noted arm pain going down his left arm.
The plaintiff indicated that he took his wife home from the hospital and that he did not go to work that day. The plaintiff gave evidence that he took 14 days annual leave after the accident which he corrected as being the total leave which he took at various times following the accident. In cross-examination, the plaintiff said that he had a few days off after the accident only.
The plaintiff was asked whether he noted any difficulties following the accident in his work at Caltex which he said was a desk job. He stated that his back was in spasms and it was difficult for him to sit at the desk for long periods. He said that to relieve it that he had to lie down and also he took pain medication.
The plaintiff gave evidence that he saw Dr Aroney, a general practitioner, on 4 February 2015 who referred him to a physiotherapist and for scans. He said that he had five sessions with the physiotherapist. He stated that the physiotherapist worked on his neck and lumbar region, particularly the lower lumbar area on the left side, and his neck and left shoulder.
The plaintiff stated that he also saw a Dr Herron who referred him to a sports physician Dr McDonald but he did not see Dr McDonald, as he was not able to afford his services. He stated that he was told that Medicare did not cover Dr McDonald's services. The plaintiff noted that he also took time off on numerous other occasions as a result of his injuries including working a number of half days. He said he would go home and lie down when his condition worsened and take medication. He said that this occurred once a week on average when the pain in his back became worse and he had back spasms and could not stand up or sit for long. He noted that his neck continues to give him problems.
The plaintiff stated that some months later he left Caltex and started work for AMP Technologies which was a ‘start-up” company. In cross-examination he stated that he obtained this position which was in charge of Asia-Pacific and involved travel, from a family friend. He said the new position required him to be “quite mobile” and to travel. He said he went out of the office frequently to meet people. This also involved driving short distances to attend meetings. The plaintiff claimed that the pain which he had arising from the accident made it more difficult to get in and out of the car and to sit and stand. He said he often gave himself an “early mark” from work about twice a week to go home because of his pain.
The plaintiff gave evidence that he left AMP Technologies in about October 2016 after about seven months and returned to the United States.
The plaintiff gave evidence that he currently worked for Cushman & Wakefield which dealt with commercial real estate and that he was involved in sales and leasing of industrial and commercial offices. The plaintiff then gave evidence in relation to the printout from Cushman & Wakefield which is Exhibit B.
In his new position, the plaintiff gave evidence that he worked between 50 and 55 hours per week from Monday to Friday starting at 7am and continuing to 5 to 6pm. He stated that he was out in the field about 20 hours per week and was required to travel to real estate sites every day up to about 20 miles. He stated that he continued to have difficulties at Cushman in being active and walking around due to pain and spasms in his back and neck. He stated that this pain required him to go home early at least once per week. He said he had self-treatment of lying down and stretching but did not take medication.
The plaintiff gave evidence that he had seen a chiropractor and a physiotherapist in the United States but did not have reports from either of the practitioners as they did not want to become involved in an international court case.
The plaintiff said that he saw his chiropractor, Mr Gil Jackson, for four sessions in the last eight months particularly when his back had bad spasms. He had paid Mr Jackson $100 per session and gave evidence that the treatment had loosened up his muscular back spasms and it had involved electrical stem therapy and deep tissue massage which had given him benefits each time for a couple of weeks.
In relation to the physiotherapist, the plaintiff indicated that he had received free physiotherapy on three occasions from Ms C Stewart at University College Berkeley as a result of a request from his former football coach. This also involved very similar treatment to the chiropractor and included massage therapy and electrical therapy. He said it was difficult to get appointments with the physiotherapist.
The plaintiff gave evidence that his performance had been criticised at his current position by the managing director: T30.25. The plaintiff said that his performance in his current job would have been much better if he had not suffered from his accident related injuries as he could have met more clients and made more money: T31.8. It was noted that the plaintiff had only obtained a fee paying commission from 10 clients in the time he had been at Cushman according to Exhibit B. The plaintiff asserted that if he was physically active he would be able to see “closer to 30” and that this would involve 55 to 60 hours per week: T32.9.
No evidence was given in the proceedings by anyone from the plaintiff’s current employment nor was there any other evidence which would support the plaintiff’s assertion.
The plaintiff was then asked some questions about problems with domestic chores caused by the accident. He indicated that he had problems cleaning, vacuuming, carrying groceries and bending over since the accident: T34. He stated that in relation to outdoor activities, he had problems putting out the garbage and in cleaning his car. He said he lived in an apartment now and he estimated that he would need four hours of assistance per week. He said that despite him and his wife having physical difficulties they shared the domestic tasks and that they struggled through the tasks doing the best that they could: T35.32.

Cross-examination of the plaintiff

In cross-examination, the plaintiff was asked numerous questions in relation to the extent and severity of his injuries arising from the accident, the treatment for those injuries and the medical consultations which he had in relation to the injuries. The plaintiff gave evidence that he attended hospital with his wife after the accident and whilst at the hospital he felt pain in his neck and back and referred symptoms in his arm, but conceded that he did not himself seek treatment at the hospital. He stated that his main concern at the time was for his wife and he did not consider that he needed treatment then. He agreed that he did not seek treatment until 4 February 2015 when he went to see Dr Aroney as he did not feel he needed treatment until his condition got worse: T40.29.
The plaintiff was then asked questions in relation to the leave he allegedly took after the accident. The plaintiff stated that he did not take 14 days leave immediately after the accident but took a few days leave and took other holidays intermittently when required. This was when the pain was “unbearable”: T40.48. It was put to the plaintiff that Caltex's leave records showed that he did not take any time off work after the accident and he said that the records were incorrect. He stated that his manager must not have recorded the leave properly. He denied that he did not take any leave after the accident.
The plaintiff was cross-examined in relation to his claim that he could not afford to see a head and neck specialist to whom he had been referred by a general practitioner. He agreed that he was earning $1,200 per week at the time but stated that he was supporting his wife who only worked part-time and earned limited money and was also attending university. It was put to the plaintiff that he did not see Dr Sheu in relation to his condition arising from the accident. He denied this and said that that was one of the reasons he saw her as well as a return of his bronchitis. It was put to him that there was no mention in Dr Sheu’s notes of anything to do with complaints in his neck and back but the plaintiff said that that was one of the reasons why he saw Dr Sheu. He agreed that he told Dr Sheu that he had played rugby union in America and was also playing it in Australia but denied saying that he played professional rugby. He stated that Dr Sheu would not provide him with a report.

It is noted that there is no reference in the records of Dr Sheu which are part of Exhibit 1, to the plaintiff complaining about his neck or back. However, some caution must be exercised in relying on medical notes: Mason v Demasi [2009] NSWCA 227 at [2].
The plaintiff agreed that at the end of February 2015 he had driven with his wife to Byron Bay to see his wife's family. He stated that they shared the driving and stopped and rested on occasions. He agreed that he did not seek medical attention in Byron Bay but only on his return to Sydney in relation to his bronchitis. He agreed that at the time his bronchitis was more important than his injuries because he had trouble breathing.
The plaintiff was cross-examined in relation to his evidence in chief that he had seen a physiotherapist on five occasions in Australia. He said that he paid for the sessions with the same physiotherapist out of his pocket. He denied that he told Dr Bodel that he had only seen a physiotherapist on one occasion. He also denied saying to Dr Bodel that he was unable to have physiotherapy because of funding issues but said that he told Dr Bodel that he could not “continue” to have physiotherapy because of funding issues. The plaintiff said that he had difficulty affording the physiotherapy because it was more than $100 a treatment. The plaintiff also denied that he sought no further attention for his injuries after the first attendance with Dr Aroney and stated that he saw Dr Herron, also in March 2015.
The plaintiff was asked questions about why he did not seek more medical attention in relation to the pain he was allegedly suffering from arising from the accident. He said this was because he was receiving some physiotherapy treatment and a regime of home exercises which had been recommended for him. The plaintiff denied that the reason he did not see Dr McDonald as referred by Dr Herron was because he was improving and he said it was because he could not afford the medical consultations: T47.6.
The plaintiff agreed that he had gone on a camping holiday in the US in mid-2015 but said this was a family annual gathering and could better be described as “glamping” and was much less rigorous than normal camping. The plaintiff was asked why he did not request financial assistance from his parents for treatment. He said that he had but they were already helping him financially periodically anyway and declined to provide further assistance: T47.42.
The plaintiff was asked why he did not consult doctors in the second half of 2015 in relation to his accident injuries. It was put to him that the symptoms were not severe enough to do so. He denied this and said that there was nothing the doctors could do to improve his symptoms and he maintained his regime of home exercises. The plaintiff frankly conceded that he had received no treatment from any general practitioner after the middle of 2015 in relation to the accident injuries. He denied this was because he was not suffering any significant symptoms and said it was also because he could not afford continuing treatment from a physiotherapist. He denied that he was exaggerating the symptoms of his injury as at mid-2015.
The plaintiff was cross-examined as to why he left Caltex and then AMP Technologies. He conceded that this was for reasons unconnected to the accident. The plaintiff was cross-examined about his salaries but the cross-examination revealed that the payment from AMP Technologies was in US dollars which was an increase in the salary the plaintiff was paid by Caltex.
The plaintiff frankly conceded that he received no medical treatment for his injuries in 2016. He said this was not because the injuries were not troubling him at the time or impacting on his jobs in Australia.
The plaintiff was asked a number of questions about the commissions which he earned at his current job with Cushman & Wakefield. He agreed that it took him some months before he received his first commission in April 2017 and that he had to pay back a “draw” of $30,000 before he received further commissions. He agreed also that he was starting to receive increasing commissions and he hoped that his commissions would continue to increase in the future. He stated that he hoped to stay with that company. In giving this evidence the plaintiff was frank and in my view open and honest in his answers.
The plaintiff was asked some questions about the alleged difficulties which he had at home performing domestic duties. He said that the difficulties were with cleaning, vacuuming, mopping, cleaning the bathroom, undertaking grocery shopping and other household tasks. He gave evidence that he lived in a two bedroom two bathroom apartment which had both floorboards and carpet. The plaintiff gave evidence that prior to the accident he shared domestic duties with his fiancée and that they continued to share domestic duties now. In relation to shopping for groceries, he agreed that he could and did divide heavy bags so that they were easier to carry. It was put to the plaintiff that he was not going to pay anyone for undertaking cleaning or grocery shopping and he agreed that “at this point” he was not: T61.17.
The plaintiff was then asked a number of questions in relation to the accident. The plaintiff stated that he had been living at Francis Street for about six months at the time of the accident. He said that he very rarely drove to work but used the car daily for trips such as going to the shops. He said that the Black Holden Barina motorcar involved in the accident was owned by him and he had it for about one and a half months prior to the accident. Prior to the purchase of the Barina, he said that he and his fiancée had access to his fiancée’s father’s vehicle which they had driven for about a year. Both the plaintiff and Ms Miller had full licences at the time.
The plaintiff agreed that on the morning of the accident there had been heavy rain and that the car had been parked overnight on the street. He agreed that the car windows and the side mirror were wet with rain but gave evidence that neither was foggy. The plaintiff said that the vehicle parked in front of him was about 2 metres in front (T64.5) and he did not have to reverse to exit from the car spot. He agreed that there was a hill further to the west and, as indicated above, the crest of the hill was about 50 metres away (T64.31). He conceded that traffic approaching where his car was located from west of the crest was obscured from his vision (T64.35) and that it was important once he checked that there was no traffic approaching to exit from the parked location without delay. The plaintiff agreed that it was always important to look for approaching traffic. The plaintiff denied that it was important to pull out in a timely fashion if this meant pulling out quickly. He said he pulled out very slowly and cautiously so he could keep an eye on traffic: T65.3-.12. When it was put to him that he had no reason to pull out in a slow and cautious fashion he rejected that and said that he had every reason to be cautious as part of safe driving. He said that there was no delay in pulling out from the parked area but similarly there was no reason to drive out quickly.
The plaintiff was cross-examined further in relation to physiotherapy services provided. It was agreed between the parties that the plaintiff attended physiotherapy in Australia on four occasions in March 2015. The plaintiff said that he had attended the chiropractor in America on four occasions since his return to the US and he said that two of these were paid in cash without an invoice and he was provided an invoice for the other two services. The plaintiff appeared to be frank in relation to this matter and I accept his evidence that he had four chiropractor consultations in America despite only having invoices for two of them.
In relation to the physiotherapy received in Australia, the plaintiff conceded that he had no further physiotherapy after March 2015. The plaintiff gave evidence that the physiotherapist gave him a regime of home exercises to undertake as he informed the physiotherapist that he was not in a position to afford funding further physiotherapy treatment after March 2015. The plaintiff gave evidence that despite receiving more income at AMP he did not have the available funds because he was not paid for a few months at the end of his service with AMP. Whilst I accept that this was the case, the plaintiff did not start work with AMP Technologies until well after the accident. Although the plaintiff denied that after March 2015 he had recovered from his injuries, I think it likely that the physiotherapy treatment was seen as expensive by the plaintiff, he thought he was improving and that the obtaining of a home exercise regime from the physiotherapist meant that further consultations, although desirable, were not necessary.
The plaintiff was further cross-examined in relation to the accident. The cross-examination was in the light of an unsworn statement, a statutory declaration and a motor accident personal injury claim form which the plaintiff had signed.
In relation to the unsworn statement dated 10 July 2015 which became Exhibit 3 in the proceedings, the plaintiff confirmed that he had reviewed this and it was correct.
Paragraphs 14-23 of the unsworn statement are as follows:

“14.  Prior to the accident on 28 January 2015 about 8am I left home with my fiancée Rose. I was driving vehicle NSW registration BZ23ZT and Rose was seated in the front passenger seat. I had my vehicle parked directly out the front of my unit block. I was going to drive to work and drop Rose off at Bondi Junction.
15.  I started my vehicle and indicated with my right blinker, then looked into my side mirror and over my right shoulder for any traffic. I saw that it was clear. I slowly started pulling out of the parking space and I now had my vehicle positioned in the middle of the road but on an angle. I was just about to start straightening the vehicle when Rose yelled out "Drew".
16.  I then looked again in my mirrors and saw a taxi coming towards me from behind me. I braked and stopped assuming that the taxi would either stop or swerve to avoid me. When I first saw the taxi he was at the top of the hill. He had ample time to either stop or swerve to avoid the accident.
17.  I heard skidding just prior to the accident. I then felt an impact. The front left portion of the taxi collided with the driver's door of my vehicle. When the taxi impacted with my vehicle the taxi was slightly turned to the right which suggests to me that he tried to swerve at the last second to avoid the accident.
18.  The time from when I last looked in my mirrors and when Rose yelled out “Drew” was only a split second. I didn't delay leaving the car space after I last looked in my mirrors.
19.  On a scale of 1 to 10 with 1 being minor and 10 being greater, I estimate the impact to be 9.
20.  After the accident happened, both our vehicles stopped where the collision had occurred.
21.  Upon impact I saw that Rose had hit her left shoulder and the left side of her head on the passenger door and window. I asked Rose if she was alright and she moaned. She was conscious and I heard her also say “Ow” upon impact. She appeared to be in shock and she remained in the vehicle.
22.  I got out of my vehicle and walked around to Rose's side to make sure she was alright. I opened the passenger door and she stayed seated in the vehicle.
23.  I then went to the taxi driver who was still seated in his vehicle. He said, “I'm sorry, I'm sorry, I couldn't stop.” I saw no passengers within his taxi. I said, “Are you going to get out of the car?” He then got out of the taxi and looked at the damage to his car. He wasn't concerned at all with Rose or myself. He then said, “Now it's ruined my day, I have to get the car fixed.” I saw that his taxi had a broken left headlight and the front bumper bar was bent.”

Exhibit 5 in the proceedings was a Statutory Declaration signed by the plaintiff on 18 September 2015.
Paragraphs 2 to 9 of that Statutory Declaration are as follows

2.  On 28 January 2015, at about 8:00am I left home with my fiancée Rosalie. I was driving vehicle NSW registration number BZ2 3ZT and Rosalie was seated in the front passenger seat. I had my vehicle parked directly out the front of my unit block. I was going to drive to work and drop Rosalie off at Bondi Junction. I started my vehicle and indicated with my right blinker, then looked into my side mirror and over my right shoulder for any traffic approaching from behind. I saw that there was no traffic approaching from the rear and the road was clear. I slowly started pulling out of the parking space and I now had my vehicle positioned in the middle of the road but on an angle. I was just about to start straightening the vehicle, when Rosalie yelled out, “Drew!’.
3.  I then looked again in my mirrors and saw a taxi coming towards me from behind me. I braked and slopped assuming that the taxi would either stop or swerve to avoid me. When I first saw the taxi he was at the top of the hill. He had ample time to either stop or swerve to avoid the accident.
4.  I heard skidding just prior to the accident. I then felt an impact. The front left portion of the taxi collided with the driver's door of my vehicle. When the taxi impacted with my vehicle, the taxi was slightly turned lo the right which suggests to me that he tried to swerve at the last second to avoid the accident.
5.  The time from when I last looked in my mirrors and when Rosalie yelled out, “Drew!” was only a split second. I didn't delay leaving the car space after I last looked in my mirrors.
6.  On a scale of 1 to 10 with 1 being minor and 10 being greater. I estimate the impact to be a 9.
7.  After the accident happened, both our vehicles stopped where the collision had occurred.
8.  Upon impact, I saw that Rosalie hit her left shoulder on the left side of her head on the passenger door and window. I asked Rosalie if she was alright and she moaned. She was conscious and I heard her also say, “Ow” upon impact. She appeared to be in shock and she remained in the vehicle. I got out of my vehicle and walked around to Rosalie's side to make sure that she was alright. I opened the passenger door and she stayed seated in the vehicle.
9.  I then went to the taxi driver who was still seated in his vehicle. He said, “I'm sorry, I'm sorry, I couldn't stop”. I saw that there were no passengers within his taxi. I said, “Are you going to get out of the car?” He then got out of the taxi and looked at the damage to his car. He wasn't concerned at all with Rosalie or myself. He then said, “Now it's ruined my day, I have to get the car fixed”. I saw this taxi had a broken left headlight and the front bumper bar was bent.

The Motor Accident Personal Injury Claim Form that became Exhibit 4 in the proceedings had a picture drawn of the accident at question 14. The plaintiff gave evidence in re-examination that this was drawn by his solicitor under his direction. The picture showed that the car had virtually left the kerbside parking lane on the immediate approach of the taxi to it.
Question 15 was as follows: “Describe what happened in the accident. Include details of who you believe caused it.” The plaintiff replied as follows (the plaintiff gave evidence that this was written by his solicitor but he did not disagree with it):

“I was the driver of vehicle reg no B2232T. Rosalie was a front seat passenger. I started the engine, put on the right indicator, looked over my right shoulder, there were no vehicles approaching; looked into the right driver side mirror again no vehicles approaching, and then slowly moved the vehicle out from the kerb, Rosalie Miller my front seat passenger called out, I stopped the vehicle and the taxi vehicle collided heavily with my front driver’s side door.”

These various accounts are in general terms consistent, in my view, with the plaintiff’s oral evidence.
Mr Hyjer was further cross-examined in relation to the accident. He claimed that when his vehicle pulled out from the kerb in Francis Street that there was a vehicle parked in front of him but not a vehicle parked immediately behind him: see also T7.33. He was shown a diagram which became Exhibit 2 which he agreed he initialled. It was put to him that there was not a car space behind him shown in that diagram. He denied that, and said there was sufficient space in the diagram for there to be a vacant spot behind his car. I accept Mr Hyjer's evidence on this issue as it appears to be consistent with the photographs in Exhibit A numbers two and four (recognising the caution which must be exercised with photographic evidence). There is no suggestion the diagram was drawn to scale.
Mr Hyjer indicated that the time period from when his fiancée called out “Drew” until the time of collision was between one and two seconds: T79.16-31. He gave evidence that he stopped the car after seeing the taxi. Mr Hyjer also stated that paragraph 15 of his unsworn 10 July 2015 statement was correct where he states: “I now had my vehicle positioned in the middle of the road but on an angle”.
Mr Hyjer confirmed that he had fully pulled out from the kerb in his car but it was still at an angle. At one stage Mr Hyjer said that he had reversed his car back before he got out after the collision. Despite asserting that he had given this evidence in chief, he had not. Having regard to the later evidence of Mr Lopes, which I will come to, I accept that the photographs taken of the black car show the general position of the black car at the time of collision, although it may have been pushed a small distance forward and slightly closer to the kerb.
Mr Hyjer was asked why his wife saw the taxi approaching before he did. Mr Hyjer gave evidence that after he looked at the mirrors to satisfy himself that there were no vehicles approaching he started pulling out slowly and when his wife yelled out “Drew” he turned around and saw the taxi approaching and immediately braked and stopped his car. He agreed that when he saw the taxi it was about 50 metres away or “maybe less”: T88.35. He agreed that he thought the taxi had ample time to stop.
Mr Hyjer denied that he had ample time to straighten up and proceed forward to avoid the collision. Although Mr Hyjer was cross-examined heavily in relation to this concept, Mr Hyjer's response that he thought it was not appropriate to continue was in my view the better and more prudent approach to adopt at the time. With the taxi approaching, in my view it was better to stop rather than to proceed out and involve the potential for a collision at a different angle and speed.
Mr Hyjer gave evidence that there was only light rain at the point of collision but after the accident the rain became very heavy. He denied that the taxi was not travelling at an excessive speed. Mr Hyjer also denied that he pulled out from the kerb without having his indicator on at all.
It was put to Mr Hyjer that he said to the taxi driver that he “did not see you coming.” He denied this and denied that his lack of observation of the taxi caused the collision.
In re-examination, Mr Hyjer acknowledged that Exhibit 6, the Caltex leave records, did not indicate that he had taken leave after the accident. Despite this, he said that his clear recollection was that he did ask for leave and took some leave immediately after the accident. He said he asked his immediate manager. Mr Hyjer said that at the time, Caltex was going through a large restructure and many employees had been retrenched. This was put forward as a reason why his leave may not have been recorded.
In relation to the issue of physiotherapy treatment, Exhibit E which was a letter from CIC Allianz Insurance Ltd dated 18 March 2015 shows that approval was not given as at that time for sessions of physiotherapy by the insurer. Mr Hyjer gave evidence that he did not receive income for the last three months he was at AMP Technologies and he had to take out a loan of $12,000 for living expenses

The plaintiff struck me as giving his evidence honestly and to the best of his recollection. I did not gain the impression that he exaggerated his evidence or that he embellished it for the purposes of improving his case. I reject the defendant’s attack on his honesty. Mr Hyjer made concessions where appropriate. The plaintiff readily conceded that he and his wife struggled through with their domestic activities after the accident, that the rate of his commissions was improving with his current job, that he hoped they would continue to improve and that he did not consult doctors apart from Dr Bodel in relation to his injuries arising from the accident in the second half of 2015 or in 2016. As the case developed some issues arose as to the accuracy and reliability of aspects of the plaintiff’s evidence which I will consider further below.
The plaintiff gave evidence that he saw Dr Sheu but this is not referred to in her notes.
Although this is a matter to be taken into account, in my view caution should be exercised in placing too much weight on medical notes or in the history set out in medical reports for the reasons set out by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2]. See also Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 at [144].
It may be that the plaintiff was mistaken in relation to what he told Dr Sheu but in my view it is equally possible that the doctor did not record these details. Another possibility is that he accompanied his wife when she saw Dr Sheu and mentioned to the doctor his own problems. Even if the plaintiff is in error in this matter, I do not regard it as substantially affecting his reliability or credit. I did not conclude that he was lying on this issue.

The oral evidence of Ms R Hyjer

Oral evidence was given in the proceedings by Ms Rosalie Hyjer (also known as Ms Rosalie Miller) who was the plaintiff’s fiancée at the time of the collision and later married him in July 2016 before their separate travel to America.
Ms Hyjer’s evidence in chief, including in relation to the accident, was very similar to that of the plaintiff. She confirmed that their car was parked out the front of their apartment in Francis Street on the day of the accident and they left at about 8am in the morning. Ms Hyjer said that it had been raining in the night and it was lightly sprinkling when they got into their car. She said she was sitting in the passenger seat and she noticed her husband put the blinker on to pull out from the kerb. She gave evidence that she turned around to look out the back window of the car which she always did as she was an anxious passenger and knew that there was a crest at the top of the hill behind the car. She said she wanted to assist her husband to ensure that the way was clear.
Ms Hyjer noted that the car started to move out and she said words to the effect “it's all clear, it's all good to go”. She said these words were stated by her just as the car was starting to move. She noticed that her husband was also looking behind and the car started to slowly pull away: T102.28. The taxi then came over the hill and she saw it and called out “Drew”. She said that she saw that her husband turned around, applied the brakes and the taxi came quite quickly towards the stopped car. Ms Hyjer stated that she maintained eye contact through either the rear window or the rear passenger on the driver’s side window until shortly before the car was hit, when she closed her eyes. Ms Hyjer confirmed that she could see clearly out of the window and it was not fogged and there was not heavy rain on the windows. She later gave evidence that a couple of seconds passed after she called out before the collision: T117.20. See also T124.41-125.3.
Ms Hyjer gave evidence that the impact of the collision was very hard (T103.18) and it threw her against the side of the car with her hitting her head on the window and causing bruises on her side. She said that she felt the car move, being pushed slightly about a metre or a little less: T103.40.
Ms Hyjer gave evidence that after the collision her husband turned to her and asked if she was all right. She said she was crying and he comforted and talked to her. He attempted to get out of the car which was a little difficult because the driver’s door had been damaged. She said her husband walked around the car over to her side and opened the passenger door, unbuckled her belt and asked again if she was all right.
Ms Hyjer said that the taxi driver did not come to her in the car and that she had no discussion at any time with him. She gave evidence that the taxi driver remained in attendance after the collision for somewhere between 15 and 20 minutes. She heard her husband call the police in her presence, but they did not attend.
Ms Hyjer gave evidence that she was in a lot of pain and the plaintiff drove her to the Prince of Wales Hospital to ensure that she was all right. She spent a few hours there. After the accident she sought medical advice and treatment for her injuries and on occasions the plaintiff accompanied her, including to see Dr Sheu.
Ms Hyjer said that at the time of the collision she was working part-time during the university semester as she was attending university fulltime. Ms Hyjer confirmed that in the weeks following the accident she took some time off work and that the plaintiff also took some time off including for a few days after the accident which was consistent with the plaintiff’s evidence: T107.39. She gave evidence that on occasions she had to come home early from work if her husband was complaining of problems with his back. Ms Hyjer gave evidence that the plaintiff had a lot of trouble during his work at AMP Technologies as he had to go to meetings and was more active and also worked at home on the computer which caused difficulties for him: T108.25.
Ms Hyjer confirmed that the plaintiff still had difficulties with his back currently in his work at Cushman & Wakefield and on occasion he had to leave early because of problems with pain. Ms Hyjer said that the plaintiff took painkillers and muscle relaxants as well as using heat packs and they had changed mattresses on their bed to get a more suitable mattress. She also noted that the plaintiff had undertaken exercises to strengthen his back and to relieve the pain and muscle spasms: T109.22.
In relation to their current accommodation, they lived in a “good size” apartment in which they shared domestic duties. Ms Hyjer noted that domestic duties were “pretty difficult” for both of them including heavier tasks such as taking out the garbage: T109.47. She said that the domestic duties were taken more slowly by both of them compared to previously to reduce the strain. Ms Hyjer noted that the plaintiff had a car which he used for his work which he washed and vacuumed regularly.
Ms Hyjer stated that they would be assisted by domestic help. She noted that they cleaned most days for about 30 minutes and also had to use a laundromat, as they had neither a washer nor a dryer: T109.39. Her figure of 30 minutes per day was domestic tasks for both of them. She indicated that the plaintiff washed his car and vacuumed it with the washing usually occurring weekly.
In her evidence in cross-examination, Ms Hyjer confirmed that it was only sprinkling when she and her husband left the apartment on the day of the accident. She said that the windows of the car were not foggy and she had “perfect vision” out of the windows. She noted that the car was parked underneath a tree which gave it some protection from rain. It was put to Ms Hyjer that there was no reason for her to look out of the window to check that there was no traffic coming. She agreed with that but said that she did it anyway as people sped over the hill in the street and cut through the street to go to other areas. She said it was her instinct to always check if there was traffic. Although confirming that there was no reason to check, she said she was a very anxious passenger and while she could not see out the driver’s side mirror she could clearly look out the back window and the rear driver’s side passenger window.
Ms Hyjer confirmed that her husband moved the car out slowly and he did not dart out: T114.49. She also confirmed that she was looking behind her for traffic the whole time out of the rear windows. She confirmed that as the car started to angle out of the kerb her vision was more through the passenger window behind the driver. Ms Hyjer also stated that she could see the plaintiff looking at the mirrors and over his shoulder through her peripheral vision, even though she was focusing on the rear windows.
Ms Hyjer said that she saw a car come over the crest of the hill when it was some distance away and she called out words to the effect “Drew, a car”: T116.43, T117.16. She said that the collision was a couple of seconds after she said that and not a split second: T117.20. She said the car coming over the hill kept on coming. She assumed it would stop or go around their car but it came straight ahead and collided with their car. She said that the car involved in the collision was going “very fast” and not at a “regular speed”. She rejected the suggestion that the taxi was going quite slowly.
It was put to Ms Hyjer that the plaintiff had time once he was aware of the taxi to straighten up the car and move off and that he should have undertaken that course. She denied that and said that would be “incredibly dangerous” and not a safe course to adopt: T118.37. She rejected the concept that the most dangerous step was to stop and said that in her view it was the safest option to take.
Ms Hyjer gave evidence that the car driven by the plaintiff was already in a lane of travel and had pulled away from the kerb and was about to straighten up. Ms Hyjer was taken to the photos which are Exhibit A. Initially, she stated that her husband reversed his car after the collision and that the photos were taken before he moved the car back: T120.25, T120.36 cf T83.36. At the time she gave this evidence, Ms Hyjer did not have the photographs before her.
When the photographs were placed before Ms Hyjer, she gave evidence that the photographs (or at least some of them) appeared to have been taken after their car had been moved: T121.46. Ms Hyjer then gave evidence that some photographs were taken before and some after the car had been moved. Ms Hyjer’s evidence on this point was inconsistent and not impressive: see T120.20-123.3. Having regard to all of the evidence from the witnesses and the photographs themselves viewed in the light of that evidence, I accept the evidence of Mr Lopes on this issue that the plaintiff’s car was essentially in the position at the time of the collision as shown in the photographs in Exhibit A.
Ms Hyjer was asked whether she and her husband went over the events of the accident between themselves. She said that this did not occur straight away as they were shaken. She said after the shock had reduced, they definitely talked about the accident but they did not come to an agreement as to what had occurred as they both had an understanding of what caused the accident: T125.19.
I accept this evidence.
Ms Hyjer was asked about her attendances with Dr Stephanie Sheu. She confirmed that the plaintiff had been with her a couple of times when she saw Dr Sheu who was being consulted in relation to Ms Hyjer’s injuries.
It was put to Ms Hyjer that by July 2015, the plaintiff’s injury did not appear to be troubling him to any degree. Ms Hyjer denied this. When asked why her husband did not seek more medical treatment in Australia after March 2015, Ms Hyjer said that he would have done so if he could have afforded it. There was then some cross-examination in relation to the household earnings and it was put to Ms Hyjer that based on their earnings they could have afforded to get more medical attention. She denied this and said that at the time she was also obtaining a lot of physiotherapy and could not afford the number of weekly physiotherapy sessions recommended to her (3 sessions per week at $150 per session: T131.50).
Ms Hyjer was subject to a fairly extensive cross-examination. Overall, I consider that Ms Hyjer’s evidence in cross-examination was substantially consistent with her evidence in chief. I found her to be a careful and thorough witness who appeared to give her evidence honestly and to the best of her ability. I accept her evidence that she was a nervous passenger who had the practice of looking out windows when her husband was driving the car.
Some aspects of Ms Hyer’s evidence appear to be incorrect. I will consider these aspects of her evidence further below.

Evidence of Mr Ford

Short oral evidence was given by Mr Ford, the solicitor for the plaintiff. He confirmed that he drew the diagram in the claim form which is Exhibit 4 and that it was not drawn to scale. He also confirmed that he completed the description in paragraph 15 of the claim form. He agreed that he did not take down verbatim what Mr Hyjer had told him in relation to the accident but formulated the narrative himself from what he had been told.
Mr Ford gave some evidence in relation to the transfer of the plaintiff’s file from his previous solicitors’ firm and stated that some of the invoices, particularly for physiotherapy treatment, had apparently been mislaid. He said he could not think of any way in which to locate those invoices.

The defendant’s evidence

Oral evidence was given by the defendant, Mr Antonio Lopes. Mr Lopes is a taxi driver and was driving the vehicle which collided with the plaintiff’s car on 28 January 2015 in Francis Street in Bondi.
Mr Lopes gave evidence that he was very familiar with the area. When asked what time it was when the collision occurred he said it was in the morning and while it was a while ago he thought it was around 9am. This should be contrasted with Mr Lopes’ signed statement which became Exhibit F in the proceedings which indicates that the timing was much closer to 8am. That was also the evidence of Mr and Ms Hyjer.
Mr Lopes stated that it was raining heavily which should be contrasted with the evidence of Mr and Ms Hyjer who gave evidence that it had been raining heavily but was only sprinkling when they exited their apartment and entered their motor vehicle.
Mr Lopes gave a statement dated 14 March 2015. Mr Lopes states as follows in paragraphs 10 to 14 and 19 to 20 of his statement:

“10.  About 7.45am on Wednesday 28 January 2015 I acknowledged a job to pick up a fare in Francis Street Bondi but the fare was not there and after a while I left, I was alone in vehicle, I was wearing my seat belt and I was travelling towards Campbell Parade Bondi. I am very familiar with that area and I was travelling downhill at approximately 10-15 kph. It was raining heavily, I had my windscreen wipers on, it was heavily overcast although my vision was clear and there was no traffic on the roadway.
11.  The street has parking on either side of the street and there is sufficient room for one lane of traffic in each direction. There was quite a few parked cars on either side of the street.
12.  As I was approaching downhill, I was about half way down the hill, when all of a sudden a car that was parked on the left hand side, just pulled out of the kerb, at that time I was probably parallel to the car behind that vehicle which is about 3-4 metres behind. As soon as I saw this car pull out, I hit my brakes immediately, but as I was too close and with the rain my car did not stop in time and the passenger side bumper bar and head light collided with the driver's side front and rear doors of the other vehicle which I believe was a black colour Holden Sedan.
13.  Before the impact I had not seen any person in any parked vehicle as I was concentrating on the road, although I know that the vehicle did not activate any right blinker to indicate that he was about to move.
14.  When the accident occurred I remained in my taxi as it was raining heavily and I saw that the driver of the Black Holden, who was a male person, got out of his car and approached me at my window. He was getting soaking wet and when he approached me he said, "I didn't see you coming". I said to him, "You should have seen me because before you pull out of the kerb you should make sure that the road is clear.
…
19.  The impact was not severe but soft.
20.  In my opinion the other driver was totally at fault as he did not keep a proper lookout before pulling out of the kerb, I did try to take evasive action by braking but was not able to stop in time.”

In his oral evidence, Mr Lopes said that he was travelling towards the sea down Francis Street to Campbell Parade. He stated that he was travelling at about 30kph (“even under 30”: T138.22) but the limit as far as he was aware was 50kph in the street. When asked why he was travelling 30kph he stated that it was because of the weather. He said it was pouring down and the wipers were operating at full speed.
This evidence should be contrasted with paragraph 10 of Mr Lopes’ statement in which he states that he was travelling downhill at approximately 10 to 15kph. This, in my view, is a significant difference. Later Mr Lopes stated that he was travelling at a low speed and at or “under 30”: T147.23.
Mr Lopes said that suddenly the plaintiff’s car pulled out with no indicator showing to “the middle of the road” and he could not go to the other side of the car to avoid a collision. He states he hit the brake of the car and slid into the plaintiff’s car. It should be noted that the concept of the plaintiff’s car being in the middle of the road seems to be inconsistent with the photographs which are part of Exhibit A, which show the plaintiff’s car closer to the kerb than the middle of the road, even allowing for the vehicle being moved slightly by the collision: see also T160.13.
Mr Lopes confirmed that the location of the collision was around 50 metres from the crest of the hill in Francis Street coming down the hill. Mr Lopes indicated that when he saw the plaintiff’s car emerging from the kerb his vehicle was parallel to the second car behind the plaintiff. Later in cross-examination, he said he may have been parallel to the car behind the plaintiff. In paragraph 12 of his signed statement, Mr Lopes states that he was “probably parallel to the car behind [the plaintiff’s vehicle] which is about 3-4 metres behind”.
Mr Lopes said that after the impact he reversed the taxi a short distance to let the plaintiff out of the car. Mr Lopes gave evidence that he had a conversation with the plaintiff to the following effect:

Mr Lopes: “You just ruined my day. Now I have to return my car”.
Plaintiff: “We’ll see”. T139.14.

Mr Lopes denied saying to the plaintiff words the effect: “I'm sorry I could not stop.” He said he did not say this because he regarded the accident as being the plaintiff’s error.

In cross-examination, Mr Lopes was taken to his statement which became Exhibit F and the diagram attached to that statement. He confirmed in cross-examination that at the time of the collision the location of the plaintiff’s car in the diagram was accurate. In relation to the speed limit in the street, Mr Lopes said he was not 100% sure that the speed limit was 50kph but said it was normally 50kph for suburban streets and his “best guess” was that the speed limit was 50kph. Mr Lopes said he was “pretty sure” that he was travelling not faster than 30kph but said that he did not have his eye on the speedometer but knew he was well under the speed limit.
Mr Lopes confirmed that he was between three and four metres away from the plaintiff’s car when he first saw it move. He applied the brakes and his car slid until impact. This evidence was considered later by the experts and rejected. Mr Lopes expressly denied that he was travelling in his vehicle more than 30kph down Francis Street.

Mr Lopes confirmed in cross-examination that the distance between the crest of the hill to the point of impact with the plaintiff’s car was roughly 50 metres.
Mr Lopes was cross-examined in relation to that part of paragraph 10 of his statement which provides that “I was travelling downhill at approximately 10-15kph”. It was put to him that he said he was travelling about 30kph in his evidence in chief. Mr Lopes said that he said 30kph “or under” (T147.20) and said that that was the most he was travelling. He denied that he sped up in his taxi from 10 to 15kph to at least 30kph coming down the hill. He said he was sure he was not speeding and not exceeding 30kph: T147.11-148.25 especially T147.32.
Mr Lopes was cross-examined in relation to paragraph 12 of his statement where he says “As I was approaching downhill, I was about halfway down the hill” when the plaintiff’s car pulled out from the kerb. It was put to him that if the distance from the crest of the hill to the point of collision was 50 metres then halfway down the hill would be 25 metres. Mr Lopes denied that and said he only saw the car about three to four metres away. In re-examination, he clarified the reference to “halfway down the hill” in paragraph 12 of his statement as being halfway from the top of the hill to Campbell Parade, not halfway from the crest of the hill to the point of impact: T160.50-161.4. In oral submissions, counsel for the plaintiff attacked that explanation as clearly wrong. If Mr Lopes was correct in this explanation, “half way down the hill” was where the collision occurred, not either where he first saw the plaintiff pull out or when he applied his brakes. The point of collision was about 50 metres west of Campbell Parade (Exhibit 8, Keramidas report page 12).
Mr Lopes denied that the plaintiff moved his car immediately after the collision (T152.36) and also denied that the force of the impact pushed the plaintiff’s car to any degree: T152.43. He conceded it may have been pushed it one or two inches. He confirmed in cross-examination that the plaintiff’s car as shown in the fourth photo in Exhibit A was in that position at the time of the collision: T160.9-.18.
Mr Lopes expressly rejected the plaintiff's version of the conversation where he said he was sorry.
Mr Lopes essentially maintained the main aspects of his version of events as set out in his statement apart from the speed he was travelling and his location in relation to other vehicles when he first saw the plaintiff pull out in his car.
Mr Lopes appeared to me to be attempting to give his evidence honestly and to the best of his ability. He was somewhat defensive in relation to the accident in my view, which is understandable. He altered aspects of his evidence as set out in the statement signed by him, particularly the speed and his location when he first saw the plaintiff’s vehicle vis a vis the other parked cars. I will consider the question of which account of the accident I prefer below in these reasons.

The plaintiff’s medical evidence

The plaintiff gave evidence that immediately following the accident he rang up the emergency number and when informing the operator that an ambulance was not required, was told that the accident did not fall within the relevant categories for police to attend. The plaintiff then proceeded to take his fiancée Ms Miller to the Prince of Wales Hospital at Randwick in Sydney. The evidence shows that the plaintiff himself was not admitted to or examined at the hospital.
The plaintiff tendered as Exhibit D in the proceedings a bundle of medical reports and related materials. I will proceed to consider that material.

Notes of Dr Theo Aroney

Part of the plaintiff’s tendered medical records is a referral letter from general practitioner Dr Theo Aroney to a physiotherapist dated 4 February 2015. Together with other materials these establish that the plaintiff saw Dr Aroney on 4 February 2015 which was about a week after the accident. The notes include the following:

“One week ago driver MVA.
Stationary when rear ended – drivers rear corner.
Initially felt a twinge in his lower back.
Since, back muscle spasms.
Now bilateral lower paralumbar pain.
Movement and posture guarded.
Right side worse.
Also left lower paracervical vert tenderness and left arm tingling/left 3/4/5 finger numbness following whiplash injury one week ago.
Requesting physio”.

The plaintiff is recorded as being referred for a CT of the lumbar spine and a MRI of the cervical spine. Standard painkillers were apparently prescribed.
Dr Aroney also signed a medical certificate on 4 February 2015 diagnosing injuries as “neck and lower back whiplash injuries” which he stated as being consistent with the plaintiff’s description of the cause of injury. The certificate was given for 28 January 2015 to 6 February 2015. It is noted by Dr Aroney that he has referred the plaintiff for a CT scan of the lumbar area and an MRI scan of the neck as well as a referral to physiotherapy and advice to take analgesia.

Report of Dr Helen Scott

There is a report by Dr Helen Scott of a CT of the lumbar spine dated 21 February 2015. This notes minor disc protrusions at the L4–5 and L5-S1 levels. There is no suggestion of the nerve roots being impacted in Dr Scott's report.

Report of Dr Hazan

Included in the plaintiff’s material is a report of Dr Georges Hazan, radiologist, of a MRI of the cervical spine dated 24 February 2015. Dr Hazan notes mild canal stenosis between C3 and C7 without distinct nerve root impingement or myelomalacia.

Medical certificate of Dr Guy Herron

There is a medical certificate dated 17 March 2015 by general practitioner Dr Guy Herron indicating that the plaintiff was being treated for low back pain and neck pain following a motor vehicle accident on 21 January 2015 and that Dr Herron had referred him to Dr Andrew McDonald, sports physician.
There is a referral letter from Dr Herron to Dr Andrew McDonald dated 17 March 2015. The plaintiff’s history of the motor vehicle accident is noted with a claimed injury to the lower back and cervical spine. Dr Herron notes that the MRI showed that the cervical canal was developmentally narrow and no problems were seen to the lumbar spine on the CT scan. An examination by Dr Herron revealed spasms in the left neck with poor cervical lateral rotation to the left with the plaintiff claiming of tingling in his left hand. Dr Herron also noted left lower back spasms with poor lateral rotation to the left and poor flexion.
Dr Herron also noted that the scans showed no disc problems in the lower back and that the cervical spine reports showed some developmental stenosis but no nerve root impingement. It was stated that physiotherapy would commence the next day. Physiotherapy two to three times weekly was noted and that the plaintiff may need sports physician review.
The plaintiff indicated in his oral evidence that he was told that he could not claim on Medicare for consultations with Dr McDonald and that is why he did not attend that doctor.

Report of Dr James Bodel dated 30 May 2016

The plaintiff relied on a report of Dr James Bodel, orthopaedic surgeon, dated 30 May 2016 following an examination on 29 February 2016.
In his report, Dr Bodel noted that the plaintiff informed him that he was off work for a few days only after the accident and then returned to his normal role. The doctor notes as follows:

“He was at the time travelling in Francis Street in Bondi. The accident occurred at an intersection I understand that the vehicle in which he was travelling was hit on the right-hand side at the level of the driver’s door. His vehicle was badly damaged.”

This summary is incorrect as the evidence establishes that the accident occurred when the plaintiff pulled out in his vehicle from where the vehicle was parked at the kerb and was struck by the defendant’s vehicle.
The report notes that the plaintiff informed Dr Bodel that he was shocked immediately after the accident and within a brief period of time he began to develop increasing left lower back pain and left buttock pain. It was also noted that the plaintiff attended the Prince of Wales Hospital but did not have a medical examination himself. Dr Bodel states that the plaintiff was offered physiotherapy but was never able to have that because of “funding issues” and that the plaintiff has continued a home based exercise programme. This is slightly inconsistent with the evidence.
The plaintiff’s complaints were listed by Dr Bodel as:

Left sided lower back pain and buttock pain;

Prolonged sitting or bending, twisting or lifting can aggravate the pain;

He has had neck pain particularly at the base of the neck on the left-hand side;

Head down posture or the use of the arms overhead could aggravate the pain; and

Rotation of the neck can cause radiating pain down the left arm to the ring and little fingers of the left hand.

It was noted that the plaintiff was taking occasional Panadeine Forte but had not yet had any physiotherapy. Dr Bodel noted that the plaintiff’s driving tolerance was about an hour and that he struggled with household maintenance and cleaning activities.
Dr Bodel expressed the following opinions:

The plaintiff was well muscled and there was no spinal deformity. He had tenderness in the trapezius muscles at the base of the neck on the left-hand side with a reduced range of neck flexion, extension and rotation in all directions and this is most restricted to the left;

There was discomfort at the extreme of the shoulder movement on the left-hand side and there was some pain in the trapezius muscles on resisted shoulder movement but there was no impingement or instability in the shoulders;

There were non-verifiable radicular complaints in the left upper limb particularly with rotational movement of the neck. There was tenderness at the lumbosacral junction on the left side and guarding in that area;

The plaintiff had restricted range of lateral bending mainly to the left;

There was no evidence of nerve root irritability and no clinical sign of radiculopathy;

Dr Bodel expressed the opinion that the plaintiff suffered soft tissue injuries to the neck and the back with non-verifiable radicular complaints to the left arm as a consequence of the motor vehicle accident. The plaintiff’s overall prognosis was reasonable but he still had ongoing complaints in the neck and the back and would have flareups of pain from time to time. Dr Bodel did not anticipate any significant deterioration and expressed the view that the plaintiff’s clinical condition had stabilised. Further treatment was recommended to include a self-directed home based exercise programme to improve physical fitness levels in the neck and the back. Dr Bodel saw no indication for injections or surgery or for any other invasive test or treatment;

Dr Bodel expressed the opinion that the plaintiff was able to continue with his then current occupation as director for AMP Technology indefinitely with full hours of work in his current capacity;

Dr Bodel noted no evidence of aggravation of pre-existing pathology;

Dr Bodel advised that it would be unwise for the plaintiff to undertake heavy labouring activities and the main limitations on his activities were to avoid repetitive bending, twisting or heavy lifting over above 15 kilograms.;

Dr Bodel expressed the opinion that the plaintiff may have flareups of pain from time to time and may need some intermittent physiotherapy and/or chiropractic treatment as well as an exercise based programme to minimise flareups and to optimise recovery;

No future or specialist review was recommended as necessary unless there was a significant deterioration in clinical function. Dr Bodel noted that the plaintiff would require some intermittent physiotherapy on an as needs basis to optimise recovery and non-prescription analgesic medication. A self-directed home based exercise programme to strengthen the neck and shoulder girdle areas as well as the back and abdominal area to improve core stability was stated to be “the mainstay of treatment”;

In relation to assistance, Dr Bodel stated that in his opinion the plaintiff did not require any ongoing specific domestic assistance at the time of the report nor was it likely to be required in the future. Dr Bodel stated that the plaintiff should be able to cope “quite reasonably with all but very heavy or repetitive tasks."

The defendant’s medical materials

Exhibit 1 in the proceedings were medical materials relied upon by the defendant. These included notes relating to the plaintiff’s attendances with other general practitioners in 2015 relating to other complaints where no reference was made to restrictions in the neck or back arising from the accident.
Medical records were included from a visit in February 2015 to a Dr Stephanie Sheu. The plaintiff claimed that he had sought treatment from Dr Sheu in relation to his injuries arising from the accident and had sought a report but Dr Sheu said that she did not wish to be involved in a claim. The notes of Dr Sheu for 18 February 2015 include no reference to the accident.
Otherwise, the records relied upon by the defendant include the notes of Dr Aroney and records relating to other medical complaints in the period from 2013 to 2015.

Findings in relation to the medical evidence

The medical evidence, particularly as recorded in the notes of Dr Aroney, is consistent with the plaintiff having a whiplash type injury to his neck and soft tissue injury to his lumbar spine.
In the absence of further evidence, I do not regard the reports of Dr Scott and Dr Hazan as establishing that the plaintiff’s mild radiculopathy in those reports was caused by the accident. In particular, there is no suggestion that the minor disc protrusions at L4/5 and L5-S1 levels were caused by the accident. There is also no evidence that the plaintiff’s nerve roots were relevantly impinged. In relation to the report of Dr Hazan, there is no evidence connecting the mild canal stenosis between C3 and C7 as being linked to the accident. Dr Hazan noted that there was no distinct nerve root impingement in his report.
The report of Dr Herron dated 17 March 2015 is consistent with the plaintiff continuing to have problems with his neck and lower back some seven weeks after the accident.
Having regard to all of the evidence, I accept the report of Dr Bodel that the plaintiff suffered soft tissue injuries to the neck and back with non-verifiable radicular complaints in the left arm as a consequence of the motor vehicle accident and no accident connected radiculopathy in the neck or back.
I also accept the views of Dr Bodel that the plaintiff’s condition has stabilised, his overall prognosis is reasonable, there is no suggestion for the need for surgery or further specialist review and that the plaintiff has ongoing complaints in the neck and back which will involve flareups of pain from time to time which will require intermittent physiotherapy as required as well as an exercise based programme to strengthen the affected areas and further analgesia as required. I also accept that the analgesic medication is non-prescription and that the physiotherapy will be required on an as needs basis to optimise the plaintiff’s recovery.
Overall, I accept that the plaintiff has continuing discomfort in his back and neck with spasms, but that it is not a serious condition which is affecting his working capacity in any significant fashion. The plaintiff’s and his wife’s evidence of occasional time off work with back complaints is in my view consistent with Dr Bodel’s report.

The expert traffic evidence

Expert report of the defendant

The defendant relied on a report of Mr W Keramidas dated 8 September 2017 which became Exhibit 8 in the proceedings. Mr Keramidas is a highly qualified and experienced expert in relation to motor vehicle accidents. Annexed to Mr Keramidas’ report is a site diagram and numerous photographs. The site diagram which is Appendix B to his report shows a vertical profile which illustrates the crest of the hill and the downward slope towards Campbell Parade.
Mr Keramidas was provided with a number of documents for the purposes of his report including the personal injury claim form, the statement of Mr Lopes dated 14 March 2015, the statement of Mr Hyjer dated 10 July 2015 and Mr Hyjer’s statutory declaration dated 18 September 2015. Mr Keramidas also had the report of Mr Joy dated 15 May 2017.
In his detailed report, Mr Keramidas expresses the following relevant opinions and conclusions:

On page 11 of his report Mr Keramidas notes the photographs taken by the plaintiff annexed to Mr Joy's report. He states that the photographs reproduced by Mr Joy are relied upon by him as part of his analysis. In the course of his evidence, Mr Keramidas also had access to photograph number four in Exhibit A which Mr Lopes stated showed the position of the plaintiff’s car after the impact. Mr Keramidas on page 13 of his report notes that the actual pavement width of Francis Street from kerb to kerb was 10.1 metres;

Mr Keramidas agreed with Mr Joy's assessment of the damage to the plaintiff’s car. He also expressed the view that the damage shown in the photograph of the taxi was consistent with the damage observed to the plaintiff’s car;

On page 19 of his report Mr Keramidas in Figure 2 to his report shows the point of impact with the rear passenger corner of the plaintiff’s car still apparently in the kerb line of park. It should be noted that there was more than adequate room to the right of the plaintiff’s car for the taxi to pass, assuming that there was no oncoming traffic. This was later confirmed by both experts;

Mr Keramidas identifies the likely impact speed to be somewhere between 10 to 15kph and Mr Joy’s 15 kilometre per hour end of range was regarded by Mr Keramidas as “certainly consistent” with his assessment of the impact speed. It was assumed that the plaintiff’s car was either stopped or nearly stopped at the time of impact;

Mr Keramidas assessed that the plaintiff’s car would have been in motion for somewhere in the order of 2.5 seconds prior to impact. This should be compared to Mr Joy's three seconds;

The sight-line between the taxi and the plaintiff was in Mr Keramidas’ opinion in the order of 50 metres, that is the likely visibility for a driver travelling east towards the impact location. Mr Keramidas expresses the opinion that depending on the speed at which the taxi was travelling (and even if it had been travelling at 60kph), he would have been in view prior to the plaintiff commencing to move off in the plaintiff’s car;

Mr Keramidas assessed the likely pre-braking speed of the defendant’s taxi to be 28 to 36kph (page 27);

Mr Keramidas expresses the opinion that it is unlikely that the defendant would have had sufficient time in order to perceive and react to the presence of the plaintiff’s car in motion and successfully avoid impact with it;

The likely speed of the plaintiff’s vehicle prior to the collision was assessed by Mr Keramidas as reaching a maximum potential of 10 to 12kph in the process of merging into the eastbound traffic from a parked position;

Mr Keramidas expresses the view that the plaintiff's actions were likely to have caused the collision by virtue of the fact that the taxi was likely to have been in view when he commenced to emerge from his parking spot and therefore he essentially failed to give way to a vehicle travelling along the roadway. If the plaintiff took a long time to merge he was creating an obstruction to eastbound traffic;

Mr Keramidas expresses the view that assuming a normal merging manoeuvre by the plaintiff, the defendant did not cause or contribute to the collision as his speed was well below the prevailing speed limit and his response to the movement of the plaintiff’s car was carried out in a timely fashion. The view is expressed that the defendant's actions would only have contributed to the collision if at the time he crested the hill the plaintiff’s car was already positioned across the eastbound portion of the carriageway and progressed no further;

“Since … it is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly.”

The field is an “uncertain” one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169, per Street CJ.
[71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed at 566, per Windeyer J. Evaluation of the worth of a loss of capacity to earn — of a lost chance to earn — is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis — that the plaintiff will have undiminished capacity — which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. H Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, at 91 [1.9.18], said: “it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act”.
In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639, Brennan J and Dawson J said: “the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history”. They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: “in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages …”. The majority (Deane J, Gaudron J and McHugh J) in Malec v J C Hutton Pty Ltd said (at 643) that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry — the process of estimation of possibilities — is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on “slender material[s]”: Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830; [1962] NSWR 871 at 877, per Evatt CJ, Herron J and Sugerman J. That language, unlike the reference to permitting “guess work or speculation” elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd (1963) 63 SR (NSW) 598 at 607; 80 WN (NSW) 999 at 1006, per Manning J. However, Menzies J said that sometimes the assessment of damages involves “guess work rather than estimation”: Jones v Schiffmann (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259, per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792, per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as “matters of prophecy or judicial guesses” in Paul v Rendell (1981) 55 ALJR 371 at 376; 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570:
“when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award.”

In Sretenovic v Reed [2009] NSWCA 280 McColl JA (with whom Beazley JA agreed) considered the assessment of future loss of earning capacity. Her Honour stated as follows at [79]-[81]:

[79] I turn then to the issue of future economic loss. The primary judge’s finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent’s future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded.
[80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff’s earning capacity “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412).
[81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”.

It is clear from the reasoning of the Court of Appeal in Stretenovic that the award of a buffer or cushion is reserved to a situation where the precise loss of the plaintiff is difficult to determine and there is a “smallish risk” that the plaintiff’s secure employment prospects will come to an end or the plaintiff’s capacity has been clearly reduced but how that will inhibit his or her earning capacity in consequence of the tort-related injury suffered by the plaintiff is uncertain.
In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 McColl JA stated the following at [6]-[9]:

“[6] The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 ; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows:
84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K’mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”, but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.

[7] The award of a buffer for future economic loss in circumstances “where earning capacity has unquestionably been reduced but its extent is difficult to assess” reflects the proposition that, to paraphrase, the want of precise evidence “does not necessarily result in non-recovery of damages”: New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant’s complaint about the adequacy of the claims assessor’s reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is “necessarily impressionistic”; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing).
[8] While, as Giles JA said in the Nominal Defendant v Lane (at [67]), “s 126 is presumably intended to promote intellectual rigour”, the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour, an element of impression must be involved. The claims assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise. The appellant has not identified any legal error in the award of the buffer.
[9] The foregoing should not be seen as a licence to award buffers indiscriminately. Where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer. Each case must turn on its own facts.”

Basten JA stated the following at paragraphs [27]-[30]:

“[27] In summarising a comprehensive review of the principles to be applied in this area, Heydon JA stated in Moss at [87]:
The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.

To the extent that this court suggested in Nominal Defendant v Livaja [2011] NSWCA 121 at [39] that hypothetical elements should be established on the balance of probabilities, those statements were wrong and should be disregarded.
[28] Structural difficulties with the form of s 126 (and the more generally applicable equivalent provision, namely s 13 of the Civil Liability Act 2002 (NSW)) have been the subject of comment in numerous cases. It has been pointed out that the calculation of future economic loss depends not only upon assumptions about unimpaired future earning capacity, but also upon the extent to which earning capacity is, or is likely to be, diminished as a result of the injury. Section 126 makes no direct reference to the latter limb of the calculation, unless subs (3) is addressed to the broader set of assumptions and not limited to those referred to in subs (1).
[29] Further, subs (2) has been understood as referring, at least primarily, to the reduction commonly allowed for “vicissitudes” which, absent particular features warranting some other approach, is usually fixed at 15%. In circumstances where, for example, the employment situation of the claimant is inherently unstable, a greater percentage is allowed. In Amoud v Al Batat [2009] NSWCA 333 I explained my understanding of s 126(2) in the following terms at [25]:
Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that “the events concerned might have occurred but for the injury”. There is clearly a step between the exercise addressed in subs (1) and that required by subs (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with subs (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by subs (2).

[30] The lacuna in s 126 may have occurred because the drafter was following the reasoning in Malec . The adjustment which was required in that case was to take account of the possibility that factors unconnected with the injury might have resulted in the same disability in any event: at 645. That problem aside, there is a point (which may be differently assessed by different courts) beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a “buffer”, without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage. The suggestion that such a commonsense approach was precluded by legislation in the form of s 126 was rejected, as noted by the trial judge, in Penrith City Council v Parks [2004] NSWCA 201, by Giles JA at [3]–[5]. Since then, a similar approach has been adopted in at least 20 cases in this court: see, eg, Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [33] (Hodgson JA; Mason P and McColl JA agreeing); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; 172 IR 453; [2008] Aust Torts Rep 81-949, at [84] (McColl JA; Mason P and Beazley JA agreeing); Zreika v New South Wales [2009] NSWCA 99 at [29] (Ipp JA; Beazley and Macfarlan JJA agreeing); Gulic v O’Neill [2011] NSWCA 361 at [67]–[69] (Whealy JA; Campbell JA and James J agreeing). It was not submitted that in principle such a course was not open to the assessor, acting in conformity with s 126. Nor was it contended that s 126 varies general law principles in any material respect. Such a contention would involve a challenge to the reasoning in Penrith City Council at, for example, [58] (McClellan AJA).”

Macfarlan JA stated as follows at paragraph [66]-[67]:

“[66] I agree with the judgment of Basten JA but add the following observations in relation to the buffer that the assessor awarded in respect of future economic loss.
[67] It has been accepted since Penrith City Council v Parks [2004] NSWCA 201 that it is not inconsistent with s 13 of the Civil Liability Act 2002 or the similarly worded s 126 of the Motor Accidents Compensation Act 1999 for a buffer to be awarded to compensate an injured person for the possibility that he or she may suffer economic loss in the future as a result of a loss of capacity to earn income. In Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, Mason P spoke of such an award being usually reserved for “the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future” (at [2]).”

The issue in the present case is to determine whether there is appropriate evidence establishing a possibility or “smallish risk” that the plaintiff may suffer economic loss in the future as a result of a loss of capacity to earn income.
I was not satisfied by the plaintiff’s evidence of an assertion that he could have increased his clients threefold if he was not injured and not continuing to suffer physical problems arising from the accident. There was no independent evidence in relation to his current employer or from a senior manager of his current employer to establish this.
I accordingly turn to determine whether the award of a buffer as sought is appropriate in all the circumstances.
It is difficult to compare the plaintiff’s employment at the time of the accident to his current circumstances:

In 2015 he was employed in Australia whereas now he is employed in the United States;

In 2015 he was paid a salary whereas now he is paid by commission;

In 2015 his salary was higher. However, on the commission basis he has the capacity to earn higher wages;

In 2015 he was employed by a major corporation;

His disabilities now cause him to go home early on occasions and thus restrict his earning activities;

I consider it less likely that the plaintiff would consider establishing his own business because of his current difficulties;

The plaintiff’s current limitations require him sometimes to go home early from his present work.

I believe there is a clear possibility that the plaintiff will suffer economic loss in the future as a result of his loss of earning capacity within the above appellate authorities due to the continuing problems which Dr Bodel has identified in his report. On page 6 of his report, Dr Bodel expresses the opinion that the plaintiff should be able to continue with the type of work that he is currently doing into the future and this would include full-time office based work activity with travelling.
Since the preparation of Dr Bodel's report, the plaintiff has moved back to the United States and has taken on duties with Cushman & Wakefield, commercial real estate agents. The plaintiff's evidence was that his duties involved him travelling frequently going out to commercial/industrial and office premises in relation to sales and leases. He gave evidence that he found that on occasions this level of activity aggravated his condition in his back and neck which required him to go home early and to rest.

Although I have rejected the plaintiff's assertion that if he was in the condition he was in prior to the accident that he would have been able to increase the number of clients so far from which he obtained commissions from 10 to 30, I consider it is appropriate within the authorities that I have set out above to allow a buffer to the plaintiff.
Clearly the plaintiff’s ongoing pain and restrictions in his back and neck limit him. I think it is likely that he will be limited in the future to some degree if he remains in commercial real estate or similar substantially office based activities where reasonable travel or physical exertion is required.
In my view, the impact of the plaintiff’s injury and loss of capacity upon the economic benefit from exercising a full earning capacity is difficult to determine. However, it appears clear to me that the plaintiff in his current occupation would be able to apply himself with increased vigour if he was not injured in the accident and did not have his current restrictions. Based on Dr Bodel's report, the plaintiff’s current problems are likely to continue for the foreseeable future. Following the injury, the economic effect of the plaintiff’s reduced earning capacity cannot be determined other than by adopting the broad approach of a buffer. The approach to assessing such a buffer is necessarily “impressionistic” within the appellate authorities.
The assessment must also be made in the following circumstances:

After the accident the plaintiff left Caltex because he did not obtain a promotion he sought;

After the accident the plaintiff left AMP Technologies because it was having financial difficulties and he was not being paid regularly;

He then decided to return to the United States;

He obtained the employment with Cushman & Wakefield before he returned to the United States;

It was not unreasonable for the plaintiff to take that employment even though it appears to involve slightly greater exertion and less remuneration. The only limitations identified by Dr Bodel in his report were that it would be unwise for the plaintiff to undertake heavy labouring activities and that he should avoid repetitive bending, twisting or heavy lifting over about 15kg. Clearly the plaintiff would not have continued with the work he had in Australia.

Taking into account all of the above matters, I think it is appropriate to allow the amount of $50,000 by way of a buffer. This takes into account the continuing restrictions which the plaintiff has as a result of the accident, their effect on his current employment position, the fact that his current employment is reasonable and requires more exertion and further travel and the plaintiff’s evidence of the difficulties which he has from time to time in his employment. In my view, an appropriate figure cannot be quantified with precision and the amount proposed as a buffer will compensate the plaintiff for potential economic losses arising from his continuing restrictions into the future. I accept that the plaintiff taking time off for complaints with his neck and his back may have some impact on his future earnings and promotion prospects even though that is difficult of assessment.

Commercial care

A claim is made by the plaintiff for an award of damages in the sum of $5,000 for commercial care. The defendant opposes any award.
The plaintiff gave limited evidence in relation to this issue but stated that he needed assistance with heavier tasks including washing his car. He quantified this need at four hours per week.
The evidence is that the plaintiff and his wife complete all domestic duties presently, including grocery shopping, but with some difficulties.
The evidence of Ms Hyjer is that they spend about half an hour a day doing domestic duties but this is shared between the two of them. She also gave evidence that the plaintiff washed and vacuumed his car and that sometimes this occurred weekly and sometimes fortnightly.
The defendant refers to the report of Dr Bodel which stated that the plaintiff “does not require any specific ongoing domestic assistance now or is it likely to be required in the future.”
In Miller v Galderisi [2009] NSWCA 353, the Court of Appeal set aside an award of damages for commercial domestic assistance where it held that there was no evidence that the gratuitous assistance being provided to the plaintiff would cease. Accordingly, the Court of Appeal held that there was no evidence that commercial care was necessary. At [18] in Galderisi the Court of Appeal referred to “a need for commercial domestic assistance likely to arise in the future”.
In White v Benjamin [2015] NSWCA 75 Basten JA (with whom Meagher JA agreed) considered at [85]-[88] for there to be a need to consider the whole of the family circumstances of the plaintiff and the provision of domestic assistance.
In the recent case of Smith v Alone [2017] NSWCA 287, Macfarlan JA (with whom Meagher and White JJA agreed) considered in detail the principles relating to commercial care and assistance at [72]–[78].
It is clear in the present case that no gratuitous care was provided to the plaintiff amounting to at least six hours per week and accordingly no recovery can be made for gratuitous care under the Act.
In Smith, Macfarlan JA referred to asking the question whether commercial care was “necessary” (at [73]) and whether commercial care would be “needed in the future”: at [75]. At [77], his Honour stated that he considered that the appellant in that case had established “a need for commercial care and assistance”.
Applying those principles to the present case, I do not consider that the plaintiff has established a need for commercial care and thus a need for damages for the provision of future commercial care as he asserts. In coming to this conclusion, I do not regard it as necessary for a plaintiff to establish a “need” for commercial care in circumstances where a plaintiff completes domestic duties with great difficulty or in great pain and over a lengthy period.
However, the plaintiff in the present case is only 30. His wife is also young. They are able to complete domestic duties including cleaning, grocery shopping and washing the family car if they assist each other and they pace their work. In those circumstances, I do not consider that it is appropriate to make an award for future commercial care for a need based on the authorities which I have referred to above.

Disposition

Accordingly, I would allow the following:

Past out-of-pocket expenses

$1,292.15

Future out-of-pocket expenses

$4,000.00

Future loss of earning capacity (buffer)

$50,000.00

Future commercial care

$0

Total

$55,292.15

This sum should be reduced by 25% for the contributory negligence found which gives a sum of $41,469.11.
The parties should check my calculations and bring in agreed Short Minutes of Order to reflect the damages to be awarded.
I accordingly make the following orders:

Judgment for the plaintiff;

The parties are to bring in Short Minutes of Order within seven days reflecting these reasons;

The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed;

Liberty to the parties to approach the court if a different costs order is sought to that set out in (3) above;

Exhibits to be returned in 28 days.

**********

Decision last updated: 02 February 2018

Medium Neutral Citation:	Hyjer v Lopes [2018] NSWDC 8
Hearing dates:	20 November 2017 – 22 November 2017; 14 December 2017
Date of orders:	31 January 2018
Decision date:	31 January 2018
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff; (2) The parties are to bring in Short Minutes of Order within seven days reflecting these reasons; (3) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed; (4) Liberty to the parties to approach the court if a different costs order is sought to that set out in (3) above; (5) Exhibits to be returned in 28 days.
Catchwords:	Torts-negligence-motor vehicle accident-conflicting expert evidence-extent to which the plaintiff’s future earning capacity has been affected-approach to the award of a buffer for loss of future earning capacity-question of whether there is a need for future commercial care
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Boateng v Dharamdas [2016] NSWCA 183 Calcagno v Dent [2015] NSWDC 308 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Curtis v Harden Shire Council [2014] NSWCA 314 Dent v Calcagno [2016] NSWCA 289 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Logar v Ambulance Service of NSW Sydney Region [2007] NSWCA 274 Manley v Alexander [2005] HCA 79; 80 ALJR 413 Marien v Gardiner [2013] NSWCA 396 Mason v Demasi [2009] NSWCA 227 Miller v Galderisi [2009] NSWCA 353 New South Wales v Moss (2000) 54 NSWLR 536 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 Smith v Alone [2017] NSWCA 287 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths Ltd (2012) 246 CLR 182 Townsend v O’Donnell [2016] NSWCA 288 Wallace v Kam (2013) 250 CLR 375 White v Benjamin [2015] NSWCA 75
Category:	Principal judgment
Parties:	Drew Garrett Hyjer (Plaintiff) Antonio Goncalves Lopes (Defendant)
Representation:	Counsel: H Halligan (Plaintiff) C Allan (Defendant) Solicitors: Beilby Poulden Costello Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2016/00365375

Past out-of-pocket expenses	$1,292.15
Future out-of-pocket expenses	$4,000.00
Future loss of earning capacity (buffer)	$50,000.00
Future commercial care	$0
Total	$55,292.15