Ilievski v Zhou

[2015] VSC 158

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 06256

ROBERT ILIEVSKI	Plaintiff
v
YINGZHI ZHOU	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	20, 21, 24, 25, 26, 27, 28 November 2014, 28 January 2015
DATE OF JUDGMENT:	7 May 2015
CASE MAY BE CITED AS:	Ilievski v Zhou
MEDIUM NEUTRAL CITATION:	[2015] VSC 158

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TRANSPORT ACCIDENT – Negligence – Contributory negligence – Assessment of Damages – Credibility of witnesses – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person Mr A Mukherjee (28 January 2015)	Barretts Solicitors (28 January 2015)
For the Defendant	Ms R Annesley QC and Mr P Bourke	Solicitor for the Transport Accident Commission

HIS HONOUR:

Introduction

1. On Friday 31 October 2008, at approximately 9.40am, Mr Ilievski endeavoured to run across Grimshaw Street, Watsonia in the face of oncoming traffic.  He was struck by a vehicle driven by Ms Zhou, the defendant.  Many of the circumstances surrounding the accident are in dispute.  However, it was clear, beyond argument, that the impact between Ms Zhou’s vehicle and Mr Ilievski resulted in him being hospitalised for five days.  Mr Ilievski alleges that he continues to suffer from injuries he sustained in the accident.

1. Both Mr Ilievski and Ms Zhou gave differing versions of the collision, neither of which was entirely credible – particularly that given by Mr Ilievski.  Fortunately, there were two independent witnesses to the accident whose evidence, whilst not totally  consistent, assists considerably in determining what occurred that morning.

1. Not only was liability hotly contested, but the consequences of the accident were also the subject of debate.  First, Ms Zhou contended that Mr Ilievski had a major pre-existing heroin addiction which, rather than his transport accident, was his primary difficulty in terms of obtaining employment.  Second, it was said that the alleged significant disability in Mr Ilievski’s right hip caused by the collision was the result of a pre-existing condition, and if any disability was related to the collision it was only slight, and of no consequence.

1. Mr Ilievski represented himself at the trial.  He did a satisfactory job in presenting the evidence to support his case.  For final submissions, he was represented by Mr Mukherjee of counsel, who was of great assistance.  Nonetheless, I have found that Mr Ilievski has not established that Ms Zhou drove her car negligently and, for the reasons that follow, Mr Ilievski’s proceeding must be dismissed.

The trial

1. On the question of liability, Mr Ilievski gave evidence in support of his case.  He also  called his mother, Zora Ilievski, and Ms Kylie Critsilis, who witnessed the accident from her home.

1. Ms Zhou gave evidence by videolink from London.  She called three witnesses: Dr Jonathan Watmuff and Craig Schenk (who both witnessed the collision), and Senior Constable John Collins (who attended the scene after the collision).  Senior Constable Collins later produced an audio file containing his interview with

   
   

   Ms Zhou at the scene of the accident.[1]

   [1]Exhibit D19.

1. On quantum, Mr Ilievski called his general practitioner, Dr Zoltan Vilagosh, and tendered  reports authored by:

(a)Dr Vilagosh;[2]

[2]Report of Dr Vilagosh dated 15 October 2010 (Exhibit P8), 14 April 2011 and 23 September 2014 (Exhibit P19).

(b)Dr D S Kochar (psychiatrist);[3]

[3]Reports of Dr Kochar dated 12 July 2010 and 1 October 2013 (Exhibit P13).

(c)Assoc Prof Miron Goldwasser (orthopaedic surgeon);[4]

[4]Report of Assoc Prof Goldwasser dated 9 June 2010 (Exhibit P14).

(d)Ms Jo Rankin (physiotherapist);[5]

(e)Ms Louise Vernieux (clinical psychologist);[6]

(f)Mr Mark Summers (physiotherapist);[7]

(g)Mr Peter Langdon (psychologist);[8]

(h)Assoc Prof N Paoletti (psychiatrist);[9]

(i)Assoc Prof Kenneth Myers (general surgeon);[10]

(j)Dr Charles Kim (pain specialist);[11]

(k)Dr Hans Tu;[12] and

(l)Ms Michelle Giordmaina.[13]

[5]Reports of Jo Rankin dated 26 October 2012 and 18 November 2012 (Exhibit P15).

[6]Report of Ms Vernieux dated 25 November 2009 (Exhibit P16).

[7]Report of Mr Summers dated 17  September 2012 (Exhibit P18).

[8]Report of Mr Langdon dated 1 September 2009 (Exhibit P20).

[9]Report of Assoc Prof Paoletti dated 5 October 2011 (Exhibit P21).

[10]Reports of Assoc Prof Myers dated 22 April 2013 and 2 October 2013 (Exhibit P22).

[11]Report of Dr Kim dated 16 December 2010 (Exhibit P24).

[12]Report of Dr Tu dated 23 August 2013 (Exhibit P25).

[13]Report of Ms Giordmaina dated 14 August 2014 (Exhibit P26).

1. The file of the Royal Melbourne Hospital (RMH) was tendered by Mr Ilievski. ^[14]

   [14]Exhibit P17.

1. Mr Peter Jazevski, who claimed to have offered Mr Ilievski employment shortly prior to the collision, also gave evidence regarding Mr Ilievski’s earning capacity.

1. Ms Zhou tendered medical reports from the following medical practitioners:

(a)Dr Michael Kozminsky;[15]

(b)Mr Michael Silverstein (psychiatrist);[16]

(c)Mr Michael Fogarty (orthopaedic surgeon);[17]

(d)Dr Andrew Firestone (psychiatrist);[18] and

(e)Mr James Drury (neuropsychologist).[19]

[15]Report of Dr Kozminsky dated 5 October 2013 (Exhibit D9).

[16]Report of Mr Silverstein dated 15 February 2011 (Exhibit D23).

[17]Reports of Mr Fogarty dated 21 February 2011 and 4 April 2011 (Exhibit D24).

[18]Report of Mr Firestone dated 9 February 2011 (Exhibit D22).

[19]Report of Dr Drury dated 14 February 2011 (Exhibit D28).

Mr Ilievski’s background

Personal history

1. Mr Ilievski was born in Victoria on 28 October 1973.  He was educated at St Monica’s College and completed his VCE in 1992.

1. Since leaving school, Mr Ilievski’s personal life has been in free-fall.  His primary problem has been an ongoing and significant heroin addiction, which persisted up until the time of the accident (and continued afterwards). 

1. Mr Ilievski attended Genesis Medical Clinic for treatment of his drug addiction, where he was managed by Dr Michael Aufgang and Dr Michael Kozminsky.[20] At various times from 1995 until July 2008, Mr Ilievski was on a methadone program supervised by these doctors.[21]   He was also treated by his general practitioner, Dr Vilagosh, for ongoing anxiety problems related to his drug use.[22]

   [20]Transcript of Proceedings, Ilievski v Zhou (Supreme Court of Victoria, J Forrest J, 20, 21, 24, 25, 26, 27, 28 November 2014, 28 January 2015) (Transcript) 159.

   [21]Report of Dr Kozminsky dated 5 October 2013 (Exhibit D9).

   [22]Transcript 379.

1. Despite the methadone program, Mr Ilievski struggled to manage his addiction and continued to use heroin.  Dr Vilagosh’s notes indicate that he used heroin in December 2007, and that in 2008 his drug intake increased.[23]  In April 2008, Mr Ilievski spent seven days in residential rehabilitation, but Dr Vilagosh noted at the time that Mr Ilievski needed longer-term treatment.[24]  Mr Ilievski used heroin again in May 2008 and continued to depend on the drug.  Mr Ilievski was regularly self-injecting heroin over the years.  He was still, in 2008, a user of heroin.

   [23]Transcript 378-9.

   [24]Transcript 384.

1. Mr Ilievski’s addiction  has led to multiple encounters with the justice system in this state, ultimately resulting in several incarcerations.  His record of convictions, in summary, is as follows:

(a)        On 1 May 1996, at the Heidelberg Magistrates’ Court, he was convicted on charges including theft, attempted theft, failing to answer bail, intention to steal, entering a building with intent to steal, and use of a drug of dependence. He was sentenced to a term of three months’ imprisonment.[25]

[25]Transcript 311 and Exhibit D14(a).

(b)       On 18 February 1997, at the Dandenong Magistrates’ Court, he was convicted on charges including theft, tampering with a motor vehicle, interfering with a motor vehicle, use of a drug of dependence, stating a false name and possessing a drug of dependence. He was sentenced to 90 days imprisonment.[26]

[26]Transcript 312 and Exhibit D14(b).

(c)        On 19 August 1997, at the Melbourne Magistrates’ Court, he was convicted on charges including attempted theft, theft, use of drug of dependence, obtaining property by deception, handling and receiving stolen goods and unlawful possession. He was sentenced to six months imprisonment.[27]  

[27]Transcript 312 and Exhibit D14(c).

(d)       On 22 May 1998, at the Heidelberg Magistrates’ Court, he was convicted on charges including theft.  He was imprisoned for six months to be served by way of an Intensive Correction Order.[28]

[28]Transcript 313 and Exhibit D14(d).

(e)        On 20 November 1998, at the Heidelberg Magistrates’ Court, he was convicted on a charge of breaching his corrections order and imprisoned for 150 days.[29]

[29]Transcript 313 and Exhibit D14(e).

(f)        On 29 June 2000, at the Melbourne Magistrates’ Court, he was convicted on charges including theft, loitering, failing to answer bail, handling and receiving stolen goods, obtaining property by deception and disposing of property being the proceeds of crime. He was sentenced to one month’s imprisonment, suspended for six months.[30]

[30]Transcript 314 and Exhibit D14(f).

(g)       On 3 June 2004, at the Heidelberg Magistrates’ Court, he was convicted on charges including theft, burglary theft of a motor vehicle, failing to answer bail and obtaining property by deception. He was imprisoned for one year with a non-parole period of four months.[31]

[31]Transcript 314-315 and Exhibit D14(g).

(h)       On 23 May 2007, at the Heidelberg Magistrates’ Court, he was convicted on charges including dealing with proceeds of crime, possessing cannabis, failing to answer bail, theft from a motor vehicle, attempted burglary and behaving in an offensive manner.  He was sentenced for a term of four months.[32]

(i)         On 23 November 2007, at Melbourne Magistrates’ Court, he was convicted on charges including affray, criminal damage and escape from custody. He was imprisoned for a term of 180 days (with 55 days being suspended for a term of 12 months).[33]

(j)         On 27 November 2009, at the Heidelberg Magistrates’ Court, he was convicted on charges including theft, possessing cannabis, failing to answer bail, theft of a motor vehicle, going equipped to steal, burglary, dealing with suspected proceeds of crime, possession of heroin and theft from a shop.  He was imprisoned for 60 days.[34]

[32]Transcript 315 and Exhibit D14(h).

[33]Transcript 315 and Exhibit D14(i).

[34]Transcript 316 and Exhibit D(14)(j).

1. In addition, on a charge of exceeding the permissible blood alcohol level, Mr Ilievski’s driver’s licence was cancelled in November 2007 for a period of 12 months.

1. In terms of his physical condition in 2008 and prior to the accident, Dr Vilagosh noted that Mr Ilievski had a significant problem with his right hip, which he characterised as ‘congenital’.[35]  The first mention of the problem appears in Dr Vilagosh’s notes in February 2008.[36]  The right hip was x-rayed in June 2008 (a few months prior to the accident), revealing moderate osteoarthritis.[37] 

   [35]Transcript 359.

   [36]Transcript 384.

   [37]Transcript 367.

Employment

1. By the turn of the century, Mr Ilievski had worked in several odd jobs, but for the main part he was unemployed.  He commenced, but did not complete, an accounting course at Box Hill TAFE.

1. In about 1999, he enrolled in an architectural drafting course at the Preston TAFE, which he attended for three years but failed to complete.

1. In the years preceding the accident, Mr Ilievski obtained two drafting positions, each of which were of short duration.  Although there were vague references to other jobs, the documentary evidence (in the form of tax returns, assessments and information from employers) demonstrates the following:

(a)in 2006, Mr Ilievski earned $17,626 working as a draftsman with M & G Tilley Imports[38] – employed for approximately six months; and

(b)in 2007, he earned $8,682 working as a draftsperson with Dindas Australia[39] – employed for six weeks.

[38]Tax Return for the year ending 2006 (Exhibit P1).

[39]Tax Return for the year ending 2007 (Exhibit P1).

1. In each of those years, Mr Ilievski also received unemployment benefits ($5,551 in 2006 and $7,733 in 2007).[40]  At times throughout this period, he was in gaol and he was on and off methadone.  He was, as I mentioned earlier, still addicted to heroin.

   [40]Transcript 100-1 and Exhibit P1.

1. Mr Ilievski said that in the 18 months or so leading up to the accident he had obtained a scaffolding licence and was intent on commencing a scaffolding business.  There is, however, little evidence of the business being progressed other than obtaining a licence.  He did not have scaffolding gear, nor did he carry out work for a client – rather, this was an idea that had been percolating for some time but had not been acted upon.[41]

   [41]Transcript 83-86 and Exhibit D2.

1. In his TAC claim form, completed by him on 5 January 2009 (TAC claim),[42] Mr Ilievski stated that he was unemployed and had been in receipt of unemployment benefits for six months prior to the transport accident.

   [42]Exhibit D7.

1. Mr Ilievski had one other interest prior to the accident.  His parents owned a block of land in Glen Iris and he says that he was assisting in some way in its redevelopment.  The idea was to construct units on the existing block in Park Road, Glen Iris.  The question of the stage of the project and Mr Ilievski’s involvement was one of the issues at the trial.

1. Finally, I should mention a curious piece of evidence that emerged on the fourth day of the trial, and in the course of re-examination.  Mr Ilievski – for the first time - said that he had an offer of employment from Mr Jazevski immediately prior to the accident. ^[43]  I am highly sceptical of this evidence and review it at [214]-[223].

   [43]This offer was not alluded to in the TAC claim form, his statement of claim, his particulars of loss or his evidence-in-chief.

1. Notwithstanding Mr Ilievski’s purported interest in the development of the block and the scaffolding business, the stark reality is that in the ten years prior to the accident Mr Ilievski held two jobs which lasted about eight months and returned about $26,000 gross.  The effects of his drug addiction (and his multiple interactions with the justice system) on his personal life severely limited his capacity to carry out work.

Credibility of the lay witnesses

Mr Ilievski

1. Mr Ilievski’s evidence was riddled with untruths and exaggeration.  He was not a credible witness.  In the course of this judgment I address a number of the inconsistencies in his evidence.  It is  helpful now to set out a number of  examples.

1. First, he failed to disclose to the Court the extent of his drug addiction before the accident and its effect upon him, as shown in the following excerpt from the transcript:  

First of all do you agree Dr Kozminsky cared for you from 1995 until July 2008?---I am not sure about the 2008 date because when I was seeing [Dr Vilagosh], he asked me, ‘are you on methadone’, ra, ra, ra.  I said ‘no’ because he needed to get permission from Canberra for certain medications.  However, Mr Kozminsky still had the methadone licence opened, even though it wasn’t being dispensed. So there could be an ambiguity because of this.

Let’s just take it piece by piece then.  You agree that you started seeing Dr Kozminsky in 1995?---If in his records it is written, yes.

He goes on to say he was managing your opiate dependency, so you saw him in respect of your opiate dependency from 1995?---That is a whole year.  Do you have a specific month?

No I don’t.  That is your report Mr Ilievski, and you haven’t provided records from this doctor.  I just want you to tell his Honour as best you can, from about 1995 was Dr Kozminsky managing your opiate dependency?---Either late ’95 or ’96, yes.

Then you say you are not sure whether it’s up until the date in July 2008?

---(the witness nodded).

But you agree that it was into 2008 that Dr Kozminsky was still looking after you in relation to you opiate dependency?---July 2008?  Him looking after me for my dependency?  No.  I was at Zoltan Vilagosh at this stage.[44]

[44]Transcript 160-1.

1. The evidence disclosed that Mr Ilievski was treated by both Dr Kozminsky and Dr Vilagosh in relation to his drug dependency during 2008.[45]  Mr Ilievski obfuscated continually in his evidence about the level of pre-accident drug dependency, his treatment for this condition and its patent affect upon his capacity to work. 

   [45]Transcript 378-9 and Exhibit D9.

1. Second, he misled the Court about his physical condition prior to the accident.  He swore that he did not have a problem with any of the parts of his body that he claimed were injured in the collision.[46]  In relation to his right hip, Mr Ilievski said in cross examination

Prior to the accident, Mr Ilievski, you had trouble with your right hip. Do you agree with that? - - - Personally I had no pain and I felt fine.

Is that an honest answer to his Honour, that you had no pain in your right hip before the accident? - - - Before the accident…

From February 2008 I suggest you had a right hip problem prior to the accident? - - - Me personally? I didn’t have a problem with my hip, like walking or doing things. It didn’t affect me.[47]

[46]Transcript 42.

[47]Transcript 286.

1. This was patently untrue. As I mentioned previously at [17], the evidence of Dr Vilagosh disclosed that Mr Ilievski had a significant degenerative right hip osteoarthritic condition.  Dr Vilagosh said that he had discussed this with Mr Ilievski at a number of consultations.  In fact, the right hip problem was severe enough for Dr Vilagosh to complete a Centrelink medical certificate in July 2008 stating that Mr Ilievski was unfit for work for a month due to ‘exacerbation’ of his right hip osteoarthritis’.[48] 

   [48]Transcript 389 and Exhibit D15.

1. It is remarkable then, that when I asked Mr Ilievski about his health prior to the accident, he said it was quite good and that he had never been put off work by his health for any length of time.[49]  This farrago continued to the point that he asserted at trial that the x-ray of his right hip was taken because he was interested in ‘doing some weights’.[50]  This account was maintained when Mr Ilievski provided a history to doctors for medico-legal assessments.[51] 

   [49]Transcript 41-2.

   [50]Transcript 42.

   [51]See, eg, report of Mr James Drury dated 14 February 2011 (Exhibit D28).

1. Dr Vilagosh’s evidence also revealed that Mr Ilievski suffered from anxiety and depression related to his drug addiction prior to the accident.   

1. Third, the TAC claim, which set out the details of the accident and his personal history, was replete with false statements.[52]  For instance, in paragraph 37 he asserted that he had not suffered from a hip, knee or shoulder condition prior to the accident and, more importantly, denied any drug or substance dependency. 

   [52]Exhibit D7.

1. Fourth, he failed to disclose the existence and extent of his criminal record, until cross-examined in detail about his convictions.  He brushed off these problems in evidence-in-chief by saying ‘throughout my life I have had ‘ups and downs’.[53]

   [53]Transcript 43, 45.

1. Fifth, Mr Ilievski’s evidence as to his employment status immediately prior to the accident was a moving and deceptive feast.  Mr Ilievski, in his evidence-in-chief, did not mention a job offer just prior to the accident.  Rather, when asked about his employment between leaving Dindas Australia in August 2006 and the date of the accident, Mr Ilievski said he worked on the property development in Glen Iris.[54]  There was no evidence to support this, and indeed it is highly dubious that work had commenced on the property in 2006 or 2007.  Moreover, he failed to mention that in May 2007 he was imprisoned for four months and in November 2007 he was again imprisoned for 60 days. 

   [54]Transcript 24-36, 40-1.

1. When asked in the TAC claim as to his occupation at the time of the accident, he said ‘[u]nemployed/however scaffold licence obtained and reg. estimator and odd jobs.’  He also described himself as ‘occasionally’ self-employed.  The TAC claim also asked: ’Did you work during the two years before the accident?’, he answered, ‘No’.  The next question was:  ‘At the time of the accident had you received an offer of employment?  His answer was: ’Yes’, identifying his parents, Zora and Karl as his employers with a scheduled employment start date of 1 November 2008.[55]  Significantly, there was no mention of employment by his parents prior to the accident – nor of any other job offer.

   [55]Transcript 131-2 and Exhibit D7.

1. Mr Ilievski’s writ was issued in November 2011.  Under the heading ‘Particulars of Loss and Damage’, the following appears: ‘At the time of the collision, the plaintiff was not actively engaged in employment.’  There was no suggestion that, at the time of the accident, he had an offer of employment.

1. On 7 January 2013, Zammit AsJ ordered that Mr Ilievski file full particulars of special damage, loss of earnings and loss of earning capacity prior to the mediation, which was scheduled to occur before 30 September 2013.  The particulars contained no suggestion that Mr Ilievski was offered a job due to commence on 1 November, but rather referred to a claim being made on the basis of earnings as an architectural builder and surveying technician at a rate of $1,152.56 per week.

1. After giving evidence as to his work history, I asked Mr Ilievski whether there was anything else about his work background that I should know.  Mr Ilievski answered in the negative.[56]  Then, in the course of re-examination three days later, there was the following exchange between Mr Ilievski and myself:

Is there anything else you want to say to me now about your state of health prior to the accident that hasn’t been covered by you?---The state of my health, upon the way I personally actually felt?

The way you felt, as to how well or unwell you were immediately prior to the accident.  Is there anything more you want to say to me?---I was so mentally switched on.  I had respect and audacity.  I was building-minded and if not, even if the building and the scaffolding didn’t eventuate, I always had my estimating I could go straight back to  so that’s an earning capacity there as well – your Honour, I am not sure whether I should bring it up now.  I have had a job offer just prior to the accident.

Why didn’t you tell me about this earlier?---Because it’s not about you [this was a reference to senior counsel who, as I recall, was somewhat agitated about this bolt from the blue].

Is this do with the scaffolding?---No.  This is fitting out – the gentleman in question was hired for 26 units.  He was going to need someone to help him and he knew that I knew quite a bit because I can walk into a building site and pick out all the faults.

So you had a job offer just before the accident?---Yes and that I will prove.[57]

[56]Transcript 44.

[57]Transcript 341.

1. Mr Ilievski then went on to identify Mr Jazevski as the employer who had offered him a job the day before the accident.  As I have mentioned, I am sceptical of this evidence and set out my views as to its probity at [214]–[223].

1. I should make one final point.  Mr Ilievski is a seemingly intelligent man and I have no doubt that he understood entirely the implications of the false evidence that he gave.  Only when confronted with evidence that he could not dispute did he concede matters adverse to his case.

Mrs Ilievski

1. Mrs Ilievski’s evidence was also unsatisfactory.  It was directed towards one topic – the time at which Mr Ilievski left his parents’ car to walk home.  Her evidence sought to establish that the accident must have occurred prior to 9.30am when there was a 40 kph speed zone in operation at the scene of the accident.

1. Mrs Ilievski’s evidence can be summarised by the following answer that she gave to my question:

Can you tell me, as best you can, if you can remember, what time it was you dropped your son off in the side street?---OK.  Because it was still school traffic zone and they were supposed to be driving slow, it is definitely before 9.30am but I can’t tell you exactly when.[58]

[58]Transcript 590.

1. Shortly prior to giving this answer, she proffered the following extraordinary piece of advice to her 30 year-old son in relation to their conversation prior to him leaving the car:

Just a minute.  I am sorry.  Sorry.  OK, something that I always remember.  I just said to him “Be careful.  The cars drive fast’.  He is always looking at his telephone.  He carries it around in his pocket.  I remember him saying that it’s still school times and they need to drive slower…”[59]

[59]Transcript 589.

1. The evidence from Dr Watmuff and Senior Constable Collins, which I shall set out in more detail later, established conclusively that Mrs Ilievski’s evidence as to the time is wrong.  The accident occurred at around 9.40am.

Ms Critsilis

1. Ms Critsilis lives at the property directly adjacent to the point of collision.  I am satisfied that she endeavoured to give her evidence in a truthful fashion, but I have significant reservations about the accuracy of her recollection. 

1. The substance of her evidence is set out at paragraphs [100]-[106].  There are two significant parts of her evidence that do not tally with the evidence of the two witnesses, Dr Watmuff and Mr Schenk.  I do not regard her evidence as being of much assistance.

Mr Jazevski

1. I have already mentioned how it is that Mr Jazevski came to be a witness in the case.  Notwithstanding that there was no mention of this alleged offer of employment to Mr Ilievski prior to the fourth day of trial, I permitted him to be called by Mr Ilievski, after Ms Zhou’s lawyers had the opportunity to investigate the background to this allegation.

1. To put it bluntly, it was totally unsatisfactory and to my mind, reeked of recent invention.

1. It suffices to say for now that Mr Jazevski was an unsatisfactory witness whose evidence was riddled with implausibilities.

Dr Watmuff and Mr Schenk

1. Both Dr Watmuff and Mr Schenk were classic independent witnesses.  Each was minding his own business driving down Grimshaw Street when the accident occurred.  Neither had any motive to give false evidence, and I am satisfied that both  gave an honest account according to the best of their recollections.

1. The inconsistencies between the two were relatively minor and both provided me with considerable assistance in determining what transpired that morning.

Senior Constable Collins

1. Senior Constable Collins attended the scene directly after the accident.  He gave objective and helpful evidence, which I accept.

The accident

The scene of the accident

1. It was not in dispute that the accident occurred in the region of 323 Grimshaw Street.[60]  Grimshaw Street runs east-west and is divided by an unbroken white line, with broken white lines permitting two lanes of traffic in each direction.  Senior Constable Collins measured the width of the west-bound carriageway at 6.1 metres (with each lane approximately three metres in width).[61]

   [60]Transcript 223.

   [61]Transcript 431.

1. 323 Grimshaw Street (where Ms Critsilis lived) is located on the south side of the road, west of the intersection of McKellar Street (a minor road) and Grimshaw Street.  A footpath and nature strip abut the roadway. 

1. 330 Grimshaw Street (Mr Ilievski’s home address) is on the opposite (northern side) of Grimshaw Street and on the corner of Dundee Street, a relatively short distance west of the point of impact.

1. The intersection of Watsonia Road and Grimshaw Street is located about 130 metres east of the point of collision.  It is a major intersection and is controlled by traffic lights.  Ms Zhou’s vehicle had passed through this intersection, as had the vehicles of Dr Watmuff and Mr Schenk.

1. Loyola College, a secondary school, is located next to Ms Critsilis’ property.  A school crossing is a short distance further west.  It is controlled by traffic lights, and a school zone speed limit was in place between the traffic lights and a sign located between McKellar Street and Ms Critsilis’ property.  It restricted vehicles to speeds of 40 kilometres per hour and below.

1. Below are two photographs taken by the investigating police officer, Senior Constable Collins:[62]

[62]Exhibit P9.

1. The first photograph is taken looking east along Grimshaw Street towards the traffic lights at Watsonia Road and shows McKellar Street in the distance and Ms Zhou’s white Honda CRV in the northern lane (closest to the centre).  The second photograph is taken looking west (i.e. in the opposite direction).  On the southern side near the pole and ambulance is the driveway of Ms Critsilis’ house.  Further west on the northern side of the road is Dundee Street (and the corner house where the Ilievski family lived).

Mr Ilievski’s account of the accident

1. Mr Ilievski said that at 9.00am (though on cross examination he conceded that it could have been 9.05am),[63] he and his parents left their home in a car driven by Mr Ilievski’s father and went to the shopping centre on Watsonia Road.

   [63]Transcript 200.

1. His parents then drove back towards their home and dropped Mr Ilievski off at the corner of Hillsborough Court and McKellar Street so that he could walk home, while they continued to Glen Iris.

1. Mr Ilievski walked along McKellar Street and turned west on Grimshaw Street heading towards his home, intending to cross from the southern to the northern side.

1. Mr Ilievski said that he was not wearing headphones or looking at his mobile phone when crossing.[64]

   [64]Transcript 205.

1. He said the following in relation to what happened when he reached 326 Grimshaw Street (outside Ms Critsilis’ house):

…so I am walking but I am looking behind me as well.  Maybe a car or two went past.  I mean, there was still a certain amount of distance that I got to, to where I was making the actual cross which would have been subsequent – sort of close to my house as well, okay?[65]

[65]Transcript 50.

1. Mr Ilievski said he made the first part of the cross (across the left lane). Cars travelling in the left lane were at a distance enabling him to make the cross with relative ease.   At this point, according to Mr Ilievski’s recollection, there were no cars in the right lane:

…I recall then going onto the second half of the cross to put myself in the middle.  However, I heard a car.  I looked to my right and just saw the car in the corner of my eye.  I think I stepped back and just automatically went into a fighting stance as to brace myself and to what I recall, is she hit me without braking.[66]

[66]Transcript 51.

1. Mr Ilievski said Ms Zhou ‘came out of nowhere’ and estimated that she was travelling over 60 kilometres per hour.[67]  He said that at the time of the collision he was just south of the unbroken line separating the two sides of the road[68] but did not make it onto the opposite side of the road.[69]  Mr Ilievski did not give clear evidence as to the direction he was facing when he was struck but I take it from what he said that he was facing north (towards the middle line) and when Ms Zhou approached, he turned towards her.[70]

   [67]Ibid.

   [68]Ibid.

   [69]Transcript 56.

   [70]Transcript 55.

1. Mr Ilievski  could not recall whether he crossed the road diagonally or in a straight line.[71]  As to his pace, he denied that he was jogging and said that his speed was ‘normal’.[72]  He denied that he had run across the road.[73]

   [71]Transcript 215.

   [72]Transcript 214; 217; 221.

   [73]Transcript 221.

1. Somewhat inconsistently with his evidence that he was just short of the centre line (and even allowing for him stepping back a little when Ms Zhou’s car approached), he said that the impact occurred to the left of the ‘H’ symbol on the hood of Ms Zhou’s Honda.[74]

   [74]Transcript 191-2.

1. Mr Ilievski said that he was hit by the bumper of Ms Zhou’s car, then struck the windscreen of her car twice before being thrown onto the back or side of the car.

1. Mr Ilievski estimated the time of the collision as after 9.20am,[75] at approximately 9.25am, 9.26am or 9.27am.  He remained on the road after the collision, and was attended to by ambulance officers  and then taken to the RMH.

   [75]Transcript 49.

Ms Zhou’s account of the accident

1. Ms Zhou, with her young daughter in the rear of a Honda CRV, was on her way to a dental appointment at a nearby clinic.[76]  She thought the accident occurred at about 11.00am.

   [76]Transcript 471.

1. Ms Zhou said that her vehicle was in the northern right lane as she crossed Watsonia Road travelling west along Grimshaw Street.  She estimated her speed at 50 kilometres per hour.[77]

   [77]Transcript 475.

1. Ms Zhou noticed Mr Ilievski to her left on the footpath, walking west.[78]  There were two to three cars in front of her vehicle.  He was in front of her and ‘turning his head back and watching, kind of, the road in the middle’.[79]  Ms Zhou said that she thought that Mr Ilievski might have wanted to cross the road’,[80] so she said she slowed down, ‘but actually didn’t brake immediately’[81] or ‘fully brake’,[82] reducing her speed to approximately 40 or 45 kilometres per hour.[83] 

   [78]Transcript 476-7.

   [79]Transcript 477.

   [80]Transcript 476.

   [81]Transcript 476.

   [82]Transcript 477.

   [83]Transcript 478.

1. When asked about what happened next, Ms Zhou said ‘this gentleman just kind of suddenly ran out so I just braked.  Not thinking about anything, to be honest’.[84]  Ms Zhou later characterised the speed that Mr Ilievski came onto the roadway as a ‘fast jog’.[85]

   [84]Ibid.

   [85]Transcript 499.

1. As to her speed at the time of the collision, she said that she ‘kind of stopped’ and felt the bump (presumably the impact with Mr Ilievski) afterwards.[86]

   [86]Transcript 479.

1. Ms Zhou was not able to say how much time elapsed between noticing Mr Ilievski on the footpath and the collision but admitted that she ‘did see him for some time ahead of it’.[87]  Ms Zhou believed that Mr Ilievski collided with the left side of the ‘H’ Honda sign and then rolled onto the windscreen but landed in front of the car.[88]

   [87]Transcript 482.

   [88]Transcript 493.

1. Ms Zhou’s vehicle remained in the lane closest to the centre throughout this episode.[89]

   [89]Transcript 474; 478.

Senior Constable Collins’ evidence

1. Senior Constable Collins (along with a fellow officer) was dispatched to the scene of the accident at 9.42am.[90]  When he arrived he spoke with Ms Zhou and members of Ambulance Victoria, and took photos of the accident scene.  He also spoke to Mr Ilievski after he was discharged from hospital on 5 November 2008.  Senior Constable Collins’ photos, his hand written notes and an incident report that he prepared were tendered in evidence.[91]

   [90]Transcript 422.

   [91]Bundle of photographs taken by Mr Collins (Exhibit D10), Bundle of all the photographs taken by Mr Collins (Exhibit P9), incident report and transcript of recorded conversation with Ms Zhou (Exhibit D19) and Mr Collins’ handwritten notes (Exhibit P11).

1. At the scene, Senior Constable Collins observed that there were no evident skid marks.  He noted that that the left (passenger) side windscreen of Ms Zhou’s vehicle was fractured.   

1. The photographs taken by Senior Constable Collins above show Ms Zhou’s vehicle with damage to the front, left-hand side windscreen,  stationary in a position to the west of McKellar Street. ^[92]

   [92]Transcript 419.

1. Senior Constable Collins was asked by senior counsel for Ms Zhou whether he observed any damage to the front centre of Ms Zhou’s car.  He said that if there had been any damage, it would have been photographed.[93]

   [93]Transcript 420.

1. The recorded conversation with Ms Zhou was as follows:[94]

   [94]Transcript of recorded conversation with Ms Zhou (Exhibit D19).

MR COLLINS:   Okay.  You were heading down Grimshaw Street.  You were heading towards (indistinct) is that correct [Ms Zhou]?

[MS ZHOU]:   Yes.  That’s right.

MR COLLINS:   Okay.  What happened?

[MS ZHOU]:   When I drive here, actually I can see that guy standing there - -

MR COLLINS:   Yes.

[MS ZHOU]:   So I already slowed a little bit.

MR COLLINS:   Yes.

[MS ZHOU]:   In case he wants to come out.

MR COLLINS:   Yep.

[MS ZHOU]:   It doesn’t seem to be he’s going out so I just go a little bit slow.

MR COLLINS:   Mm’hm

[MS ZHOU]:   But then I stopped there.  But he suddenly just run out - - -

MR COLLINS:   So what you mean, what you’re implying is there was a pedestrian is that correct?   You saw a pedestrian - - -

[MS ZHOU]:   Yes.

MR COLLINS:   Walking and then you slowed down.

[MS ZHOU]:   I slowed down but I didn’t stop.

MR COLLINS:   Yes.

[MS ZHOU]:   And he – when I very bit closer and he actually running.

MR COLLINS:   Okay.

[MS ZHOU]:   He start running then I tried to stop but I just cannot.

MR COLLINS:   Did you see him look to his right on the direction you were heading prior to you hitting him?

[MS ZHOU]:   Yes.

MR COLLINS:   You saw him look to your right did he?  He looked.

[MS ZHOU]:   Yeah.

MR COLLINS:   Okay.  And at that point - - -

[MS ZHOU]:   Yeah.  I think he looked (indistinct)

MR COLLINS:   You say you were slowing down prior to it.

[MS ZHOU]:   Yeah I slowing down. 

MR COLLINS:   Do you recall what speed you were doing?

[MS ZHOU]:   Around 50 to (indistinct) I was 50 something.

MR COLLINS:   Yes.

[MS ZHOU]:   And I reckon it goes to like to 50.

MR COLLINS:   That’s prior to - - -

[MS ZHOU]:   That’s prior to - - -

MR COLLINS:    - - - hitting the pedestrian

[MS ZHOU]:   Yeah.

MR COLLINS:   Okay. 

[MS ZHOU]:   Yeah roughly that because I have (indistinct)

The evidence of the independent witnesses

Dr Watmuff

1. Dr Watmuff‘s vehicle was in the inside lane (i.e. the southern lane closest to the kerb), stationary at the intersection of Watsonia Road and Grimshaw Street awaiting the change of lights.  His vehicle remained in this lane until the time of the collision.

1. After the lights changed, he proceeded in a westerly direction along Grimshaw Street.  He did not change lanes at any time between leaving the intersection and the accident.[95]He could not state the precise speed at which he was travelling immediately prior to the accident, save that he recalled that he was ‘accelerating fairly gently’, ‘heading up to 60 kilometres per hour.’[96]

   [95]Transcript 450.

   [96]Ibid.

1. Dr Watmuff first became aware of Mr Ilievski’s presence after he had driven through the intersection.  Mr Ilievski suddenly appeared on Dr Watmuff’s left hand side, jogging along the footpath and then the nature strip ‘in a trajectory that was diagonally moving towards the road’.[97]  He said Mr Ilievski was moving at a ‘moderate speed that a jogger would jog at’.[98]  Dr Watmuff believed that Mr Ilievski was wearing white in-ear earphones and that he was looking directly ahead, not at the traffic travelling west along Grimshaw Street.  He thought that Mr Ilievski may proceed to cross the road and took his foot off the accelerator and slowed down gently.[99]

   [97]Transcript 451.

   [98]Ibid.

   [99]Transcript 452.

1. Mr Ilievski then jogged across the path of Dr Watmuff’s car, which was approximately three to five metres back and travelling at half the speed limit ‘between  15 to 25 kilometres per hour’.[100]  He said of the collision:

It was clearly evident that [Mr Ilievski] was going to continue so immediately what I did was look into my right-hand rear view mirror and I saw an SUV was going faster than myself and there was danger of a collision with the jogger.[101]

[100]Ibid.

[101]Ibid.

1. Mr Ilievski then cleared the left hand lane and was crossing into the right-hand lane when the collision with Ms Zhou’s vehicle occurred.  Ms Zhou’s vehicle struck Mr Ilievski and sent him over the roof and onto the road.[102]  Dr Watmuff did not witness the point of impact, but saw Mr Ilievski fly over Ms Zhou’s car. 

   [102]Transcript 453.

1. As to the speed of Ms Zhou’s vehicle, Dr Watmuff said that it was passing him at a speed of between 30 to 50 kilometres per hour.  He said that Ms Zhou’s car had remained in the right hand lane (i.e. closest to the centre lane) and he could not recall whether there was any sign of braking immediately prior to the collision.[103]

   [103]Transcript 456.

1. Dr Watmuff said that Ms Zhou’s vehicle was going ‘faster than I was’.[104]  As I understood his evidence, Ms Zhou’s car was in the process of passing Dr Watmuff’s vehicle as Mr Ilievski stepped onto the road.[105]  Dr Watmuff estimated that between five to ten seconds passed between him first noticing Mr Ilievski on the footpath to the collision.[106]

   [104]Transcript 453.

   [105]Ibid.

   [106]Transcript 464.

1. Dr Watmuff stopped and immediately called 000 on his mobile phone.[107]

   [107]Transcript 454.

1. I regard Dr Watmuff’s evidence as the most accurate account of what happened that morning.  His evidence was objective and, in general, tallies with the evidence of Mr Schenk, the other independent witness.

Mr Schenk

1. Mr Schenk’s vehicle was travelling west along Grimshaw Street in the left hand lane, behind Dr Watmuff’s vehicle, at approximately 60 kilometres per hour.  Like Dr Watmuff, after crossing Watsonia Road, Mr Schenk also noticed Mr Ilievski approximately 60-80 metres ahead (i.e. to the west) on the nature strip.[108]  At that time, his vehicle was about one or two car lengths behind Dr Watmuff.

   [108]Transcript 509.

1. Mr Schenk recalled Mr Ilievski looking back towards the east before running out in front of Dr Watmuff’s vehicle.[109]  He put Mr Ilievski approximately 20 metres in front of Dr Watmuff’s car when he ran onto the roadway.[110]  He said Mr Ilievski cleared the left lane and stopped in the middle of the right lane (Ms Zhou’s lane).[111]  Although the collision occurred directly adjacent to his vehicle,  he did not see what happened to Mr Ilievski’s body.  Mr Schenk estimated Ms Zhou’s  speed at the point of impact was about 60 kilometres per hour.[112]

   [109]Transcript 510.

   [110]Transcript 515.

   [111]Transcript 512.

   [112]Transcript 515.

1. Ms Zhou’s vehicle stopped after the collision,[113] however Mr Schenk did not hear any braking sounds. [114]

   [113]Ibid.

   [114]Transcript 512,522.

1. Mr Schenk said that he applied the brakes when Mr Ilievski ran on to the road, but otherwise took no evasive action.[115]

   [115]Transcript 516.

1. Immediately after the collision, Mr Schenk called 000 and then attended to Mr Ilievski.

1. One aspect of Mr Schenk’s evidence should be mentioned: he thought that the vehicle that struck Mr Ilievski was a white Tarago van. As the photographs show, Mr Zhou drove a white Holden CRV. I do not think much turns on this.  

Ms Critsilis

1. Ms Critsilis lived at 323 Grimshaw Street, and was standing at the end of her driveway at the time of the accident.[116]  She said that she could see the entire roadway from this area.[117]

   [116]Transcript 225-6.

   [117]Transcript 226.

1. Ms Critsilis described the accident in the following way:

I did observe a dark vehicle and a light vehicle both heading on my inside lane, so the lane closest to my side of the road.  At the same time, there was a gentleman that had already begun crossing.  In that split second I looked away and as I turned my face from the street back the car from behind pulled into the right hand lane and I heard an almighty bang.  I obviously stopped dead in my tracks and ran out to the street.  The other car kept driving forward and there was a person laying in the street.[118]

[118]Ibid.

1. Ms Critsilis did not have time to form a view as to how Mr Ilievski had moved, save that she could see his back prior to his being struck by Ms Zhou’s car.[119]

   [119]Transcript 227.

1. Ms Critsilis was adamant that Ms Zhou’s car had pulled out of the lane closest to the kerb and moved into the outside (northern) lane, and that it continued travelling after the accident to the point where her partner had to tap the front of the bonnet whilst the car was still moving.[120]

   [120]Transcript 229-31.

1. There are two problems with Ms Critsilis’ account.  First, the evidence of Mr Schenk, Dr Watmuff and Ms Zhou is that her vehicle was, at all relevant times, in the northern lane with both Dr Watmuff’s vehicle and Mr Schenk’s vehicle to her left in the southern lane. 

1. Second, as the photographs and the evidence of Dr Watmuff and Mr Schenk demonstrate, Ms Zhou’s vehicle came to a halt immediately after the accident.  Neither witness suggested Ms Zhou endeavoured to continue on her way after the collision.  No such suggestion was made to Senior Constable Collins at the scene of the accident.

1. Accordingly, I think that Ms Critsilis’ evidence is of limited assistance, save as to her identification of the point of collision.

Analysis of the evidence

1. I am satisfied of the following matters, which I think were non-contentious:

(a)The accident occurred as Mr Ilievski crossed Grimshaw Street, close to No 323 – the home of Ms Critsilis.

(b)Mr Ilievski had reached the right hand (or northern) lane for westbound traffic when he was struck by Ms Zhou’s vehicle.

(c)The impact resulted in Mr Ilievski’s body striking the windscreen of Ms Zhou’s vehicle and then being thrown over it and onto the road.

1. In relation to the disputed issues, I am satisfied of the following matters.

1. Ms Zhou’s evidence as to her speed at the time of collision and her reduction in speed to zero is not credible.  Likwise, Mr Ilievski’s evidence as to his movements in crossing the roadway is not plausible.

1. It is clear that Mr Ilievski was, for a short period of time, stationary on the southern edge of Grimshaw Street and could be observed by motorists approaching his position, whether in the northern or southern lane of the westbound carriageway.  Each of the three drivers saw him on the side of the road before he attempted to cross Grimshaw Street.

1. I am satisfied, on the basis of the evidence of Dr Watmuff and Mr Schenk – which is consistent with Ms Zhou’s evidence – that Mr Ilievski ran, not walked, onto the roadway, and crossed into the lane closest to the centre line of the westbound carriageway notwithstanding the presence of oncoming  traffic.  It was not at a fast pace, but at a moderate jogging speed. 

1. By the time of the collision, he had probably traversed about four metres from the kerb.

1. I am also satisfied that, contrary to Mr Ilievski’s account, he had not reached the centre line and, in effect, retreated.  Rather, consistent with the accounts of

   
   

   Dr Watmuff, Mr Schenk, Ms Critsilis and Ms Zhou, he was struck by Ms Zhou’s vehicle as he endeavoured to cross its path.  I do, however, accept that it is likely that in the split second prior to the collision, as Mr Schenk noted, Mr Ilievski stopped running.

1. Given the damage noted by Senior Constable Collins, in my opinion, it is likely that he was struck by the left hand front of Ms Zhou’s vehicle and then thrown onto the windscreen.  He came to rest on the ground behind the vehicle, as deposed by Dr Watmuff.

1. Ms Zhou did not reduce speed to virtually a stop or close to it, at the time of the collision.  This proposition is inherently implausible and inconsistent with the evidence of both Dr Watmuff and Mr Schenk.  The thrust of their evidence, as I have discussed, is that Ms Zhou’s vehicle was travelling within the speed limit.  Neither said that Ms Zhou’s vehicle appeared to be travelling over 60 kilometres per hour.

1. However, neither Dr Watmuff nor Mr Schenk suggested Ms Zhou’s vehicle slowed before Mr Ilievski attempted to cross the road.  Indeed, Dr Watmuff said it was overtaking his vehicle, notwithstanding that Ms Zhou told Senior Constable Collins that she slowed down when she first saw Mr Ilievski.  Dr Watmuff was in a perfect position to observe Ms Zhou’s vehicle and he did not notice any reduction in speed – nor did Mr Schenk.

1. Dr Watmuff estimated the speed of Ms Zhou’s vehicle at it approached the point of collision at 30 to 50 kilometres per hour, whilst Mr Schenk thought it was 60 kilometres per hour.  In cases such as these estimates of speed are notoriously difficult.  I think that the best evidence is that of Dr Watmuff of a speed of about 50 kilometres per hour (which does not differ significantly from the estimate given by Ms Zhou that she was travelling at 45 kilometres per hour).  Indeed, it may be that Ms Zhou (as she said), upon first sighting Mr Ilievski, took her foot off the accelerator to reduce to this speed.

1. I also accept that, when she saw Mr Ilievski commence to run across the road, Ms Zhou applied the brakes of her vehicle as she told Senior Constable Collins at the scene.  Although neither of the independent witnesses observed braking, I am satisfied that this occurred immediately prior to the collision, but whether it had any effect upon the speed of her vehicle is unclear.  Such a reaction is natural and consistent with the actions of a reasonable driver.  Indeed, it is exactly what Mr Schenk did when he saw Mr Ilievski run onto the road.  The point at which Ms Zhou’s vehicle came to rest, - virtually outside Ms Critsilis’ property -  is consistent with the vehicle travelling only a short distance after the collision.

1. On this basis, I think Ms Zhou was probably travelling at a speed of around 50 kilometres per hour at the time of the collision.

1. One further issue to be resolved is that of the applicable speed limit at the time of the accident.  The evidence is compelling that the collision occurred after 9.30am, and therefore did not occur in or approaching a school restricted speed zone.  The photos taken by Senior Constable Collins show the school zone times that restricted vehicles to 40 kilometres per hour.

1. Both Mr Ilievski and his mother said that the collision occurred before 9.30am.  This evidence was bred of convenience in the pursuit of a successful outcome for this claim, and I reject it.

1. The most reliable evidence as to timing comes from Dr Watmuff, who said that he rang 000 immediately upon alighting from his vehicle.[121]  Mr Schenk did likewise.  The Emergency Response ESTA 000 records identified a call being received at 9.39am.[122]  I am prepared to infer that this was either Dr Watmuff’s or Mr Schenk’s call.

   [121]Transcript 454.

   [122]Exhibit D25.

1. Senior Constable Collins was dispatched from Greensborough Police station, only a few kilometres away, to the scene of the accident at 9.42am (consistent with the receipt of the 000 call), and arrived at the scene at 9.45am.[123]

   [123]Transcript 414, 423.

1. As such, I am satisfied that the collision occurred after 9.30am and that the applicable speed limit was 60 kilometres per hour.

1. It is convenient now to turn to the allegations made against Ms Zhou as advanced by counsel in closing submissions.

Travelling at an excessive speed prior to the collision

1. The nub of the case against Ms Zhou was her failure to react to the presence of Mr Ilievski to her left on the side of the road and reduce speed.  Essentially, it was put by counsel for Mr Ilievski that Ms Zhou should have emulated the actions taken by Dr Watmuff:  to reduce speed upon sighting Mr Ilievski in his jogging motion at the side of the road.

1. The substantive question, therefore, is whether a prudent, but not overly cautious, driver, in a line of traffic and travelling within the speed limit, would reduce speed given the presence of an adult male apparently intent on crossing the road at some point of time.

1. I have found that Ms Zhou’s vehicle was travelling at a reasonable speed, about 50 kilometres per hour, as she approached the point of collision.  As I mentioned earlier, I am satisfied that once Mr Ilievski came onto the road Ms Zhou endeavoured to apply her brakes.

1. In my view, a reasonable driver would not reduce speed from 50 kilometres per hour merely by reason of the presence of an adult on the kerb who seemed intent on crossing the road.  Just because Mr Ilievski was apparent to Ms Zhou a distance back from the point of collision, this does not mandate a reduction in speed.  I do not accept, as submitted by counsel for Mr Ilievski, that Ms Zhou’s concession that she thought that Mr Ilievski ‘might’ cross the road meant that she should have reduced her speed significantly.  A reasonable driver would be entitled to conclude that an adult jogger, possessed of a modicum of common sense, would not endeavour to cross in front of a line of traffic that had just come through a set of traffic lights further up the road.  Moreover, a prudent driver would be conscious that any sudden braking may be likely to produce greater difficulties for those travelling behind his or her vehicle.

1. I contrast this situation to that of a young child on the side of the road looking to cross.  In that case a driver, acting reasonably, would contemplate reducing his or her speed because of the risk that the child was not capable of exercising the appropriate judgment in terms of determining when to cross the road.  The same cannot be said for a 30-year-old male with no apparent mental disability.

1. Mr Ilievski’s actions created an emergency for Dr Watmuff and Ms Zhou.  He  had only traversed about 4 metres at a run when struck by Ms Zhou’s vehicle.  It gave her virtually no time to react.

1. Much was made by counsel for Mr Ilievski of the actions of Dr Watmuff, who was said to be the litmus test for a reasonable driver.  Whilst I accept that Dr Watmuff reduced speed prior to the accident, I think there are two points to be made on this issue.  First, his vehicle was closer than that of Ms Zhou to the kerb and Mr Ilievski.  In that position he had had a greater appreciation of the difficulty that would be caused by Mr Ilievski running onto the road.  Second, Dr Watmuff may be (and indeed I think was) a particularly cautious driver.  I repeat that the test to be applied to Ms Zhou’s driving is that of the reasonable person.  Mr Schenk, (who had also observed Mr Ilievski jogging on the side of the road) reasonably, in my view,  did not reduce speed prior to Mr Ilievski  coming onto the roadway.

1. In the event that I am wrong and that it was negligent of Ms Zhou not to slow down from a speed of 50 kilometres per hour to, say, 35-40 kilometres per hour as a result of observing Mr Ilievski, then I am unconvinced that such a step would have made any appreciable difference to the happening of the accident.  If Ms Zhou took her foot off the accelerator, in the fashion of Dr Watmuff, her vehicle would still have been travelling at a speed in the region of 40 kilometres per hour when Mr Ilievski commenced his attempt to cross the road.  He covered four metres at a run.  The point is that there is nothing in the evidence to suggest that if Ms Zhou’s speed was reduced by, say, 10 kilometres per hour by an earlier reduction of speed, that this would have made a shred of difference to the injuries sustained by Mr Ilievski.  There was no evidence adduced to suggest that in such circumstances he would not have struck the windscreen and, in effect, been tossed over the car and on to the roadway as he was.

1. In other words, if there was an alleged negligent act in failing to reduce speed at an earlier point in time, it made no difference causally to the injuries sustained by Mr Ilievski.

Failure to keep a proper lookout

1. I did not understand this to be a ground of attack on Ms Zhou’s driving.  Rather, it was put that as she was sufficiently alert to identify the presence of Mr Ilievski on the side of the road, she should have reduced the speed of her vehicle at that time.

Failure to take evasive action

1. This allegation could only meaningfully be applicable to the period during which Mr Ilievski was on the roadway, which was an extremely short period of time.  It was not possible in that time for Ms Zhou to take evasive action.  Even if she had time to appreciate the risk and react, it has to be remembered that her vehicle was in the northern lane beside the centre line – swerving onto the right ran the risk of a collision with oncoming traffic on the eastbound carriageway and the vehicles of Dr Watmuff and Mr Schenk were directly to her left.  I discount this allegation. 

Conclusion as to liability

1. In my opinion, Mr Ilievski has not made out a case of negligence on the part of Ms Zhou.  I accept that her vehicle was, reasonably, travelling at about 50 kph in the northern lane, and that when Mr Ilievski attempted to cross the road at a run she endeavoured to brake.  There was no breach of duty on her part.

1. Although it is not necessary to make this finding, I am satisfied that the sole cause of the accident was Mr Ilievski’s conduct in making a foolhardy attempt to cross the road with oncoming traffic bearing down on him.  I am unable to say what motivated this patently stupid course of action.

1. It follows that Mr Ilievski’s claim must be dismissed.

Assessment of damages

1. Given that this case may not finish here, and that considerable effort was spent by the parties addressing the issue of quantum, I will now set out my views as to Mr Ilievski’s entitlement to damages.

Injuries

1. Mr Ilievski pleaded the following injuries resulting from the accident:[124]

   [124]Mr Ilievski’s Statement of Claim filed 21 November 2011.

(a)Injury to the right lower extremity and in particular the right knee and right hip;

(b)       Injury to the left lower extremity and in particular the left hip;

(c)Injury to the spine and in particular the cervical and lumbar spine;

(d)Injury to the head;

(e)Injury to the jaw;

(f)Scarring and disfigurement;

(g)Mental or behavioural disturbance or disorder including anxiety, depression and post traumatic stress disorder.

1. Given Mr Ilievski’s unreliability as a historian, it is important to commence any analysis of his injuries (and their effect upon him) by reference to his attendance and hospitalisation at the RMH, the notes and evidence of his treating general practitioner, Dr Vilagosh, and other contemporaneous medical material.

Hospital and subsequent treatment

1. Following the accident, Mr Ilievski was taken to the RMH by ambulance, where he was assessed as follows:

On initial examination at RMH, Mr Ilievski was bradycardic with a pulse rate of about 40 per minute. His airway, breathing, circulation and conscious state were all stable.  He had abrasions over forehead, right cheek, right upper limb, right abdomen, and both knees. His nose was deformed and he was very tender over the right Jaw.

Mr Ilievski underwent the following tests:

·     X-rays of chest, right shoulder, right arm, right hand, pelvis and right hip

·     Orthopantomogram

·     CT head, neck, chest, abdomen and pelvis

·     MRI cervical spine

·     Routine blood tests and electrocardiogram

Mr Ilievski was diagnosed with the following injuries:

·     Right mandible fracture (right parasymphysis)

·     Nasal fracture (nasal septum fracture with right deviation of cartilage component) [125] 

It was also noted that Mr Ilievski had a history of intravenous drug use and anxiety.[126] 

[125]Report of Dr Tu dated 23 August 2013 (Exhibit P25).

[126]Transcript 390.

1. The clinical notes from the hospital recorded ‘pedestrian hit on right side by car. Allegedly 60km/hr. Hit right hip & head on windscreen’.

1. Mr Ilievski was placed in a cervical collar and referred for an MRI to investigate his neck pain.  Surgery to his jaw was delayed due to the cervical collar.  The MRI scan of the cervical spine reported multilevel disc degenerative disease with a disc bulge at C5-6 as well as disc herniation at the T1-2 level, without any impingement.[127]  It disclosed no evidence of ligamentous injury. 

   [127]Report of Dr Kim dated 16 December 2010 (Exhibit P24).

1. Mr Ilievski eventually underwent open reduction internal fixation to his right jaw on 3 November and was discharged from hospital the next day.  He was prescribed Endone, a narcotic analgesic for his pain.

1. On discharge from the hospital, Mr Ilievski was provided with a medical certificate noting his condition of a right ‘mandible fracture’.[128]  His right hand is described as painful, but there is no mention of any other injury.  It was stated that Mr Ilievski was expected to be fit for usual duties in four weeks.

   [128]TAC medical certificate from the RMH (Exhibit D12).

1. On 6 November, two days after his discharge, Mr Ilievski, having utilised all his prescribed Endone, attended Dr Vilagosh seeking more narcotic analgesic medication.  He complained of jaw pain and some neck and back pain.  Dr Vilagosh prescribed Ms-Contin for the pain and also Diazepam, an anti-anxiety drug that Mr Ilievski had been taking prior to the accident for some time to deal with his stress problems.[129]

   [129]Transcript 358.

1. Mr Ilievski visited Dr Vilagosh a handful of times before the end of 2008, seeking repeats of his pain medication to relieve his jaw pain, which Dr Vilagosh noted as his main complaint during that time.[130]  

   [130]Transcript 357.

1. Mr Ilievski was also followed up at the RMH outpatients on 25 November.  The wires in his jaw were removed at a consultation on 9 December,[131] though Mr Ilievski said that they were never removed.[132]  Dr Vilagosh did not say one way or the other,[133] but I do not think it matters much as Dr Vilagosh’s evidence was that Mr Ilievski’s jaw ‘really hasn’t been much of an issue’ for him since the treatment at the RMH.  Dr Vilagosh also said that the fracture to the nose has been stable.[134] 

   [131]Report of Dr Tu dated 23 August 2013 (Exhibit P25).

   [132]Transcript 60.

   [133]Transcript 358.

   [134]Transcript 362

1. Notwithstanding the apparent improvement in Mr Ilievski’s jaw and nose conditions, he continued to attend Dr Vilagosh complaining of wide-spread pain.  Dr Vilagosh was ‘very concerned’ that Mr Ilievski was seeking pain medication to cope with his opiate dependency.[135]  He suspected that he would have trouble renewing the permit to prescribe Mr Ilievski narcotic analgesic (which was necessary due to Mr Ilievski’s previous methadone prescription), and endeavoured to persuade Mr Ilievski to attend a long-term rehabilitation program with no success.[136]  

   [135]Transcript 392.

   [136]Transcript 393.

1. In April 2009, Dr Vilagosh’s permit to prescribe narcotic analgesics expired.[137]  So, from that time, Mr Ilievski was no longer able to receive narcotic pain relief.  Dr Vilagosh recalled Mr Ilievski not being happy with the situation and reporting constant pain.[138]   He said in response to a question from me:

I suppose it is a problem for many people, that once they have had methadone they are in this place where people are very reluctant to give them long term analgesia because you have got the real pain, you have got the demon and you don’t know who you are talking to… That’s where we have sort of stayed since that time.[139]

[137]Transcript 396.

[138]Transcript 371.

[139]Transcript 371-2.

1. Dr Vilagosh subsequently referred Mr Ilievski to pain management specialist, Dr Lim, who in turn referred him to orthopaedic surgeon John Owen.[140]  Dr Vilagosh also referred Mr Ilievski to a number of practitioners to deal with his anxiety and depression. In July 2009, he was referred to psychologist Mr Peter Langdon, whom he saw on only one occasion in September of that year.[141]   

   [140]Transcript 398.

   [141]Transcript 299.

1. In August 2009, Mr Ilievski was referred to Ms Louise Vernieux for a neuropsychology assessment, but she could not properly assess him because he was depressed and on Valium and Tramadol and she thought that might influence the results.[142]  

   [142]Report of Ms Vernieux dated 25 November 2009 (Exhibit P16). 

1. Since then, Mr Ilievski has continued to struggle with his heroin addiction (which may be due to the fact that he could not obtain narcotic analgesics). 

1. Mr Ilievski saw Dr Kozminsky again (after his initial methadone treatment) on 3 February 2009, 27 April 2009 and 6 December 2012.[143] Dr Kozminsky’s report states:[144]

I note the copious doses of opiates he has been prescribed, since the accident. The interpretation of this is either he was actually receiving treatment for his chronic opiate dependency or that the phenomenon of Hyperalgesia had occurred. With Hyperalgesia, long-term opiate use leads to less efficient painkilling effect and more trivial injuries may become extremely painful.  I am not sure which applies in this case. On the last time I saw him, I did note the absence of the stigma of ongoing illicit drug use. Specifically there were no intravenous track marks evident.  

[143]Report of Dr Kozminsky dated 5 October 2013 (Exhibit D9).

[144]Ibid.

1. Similarly, Dr Vilagosh explained that a major difficulty in treating Mr Ilievski was determining whether his addiction was fuelling the pain. He said:

The first thing we need to do is fix what hurts which is the hip. Then you say, okay, how much of this pain is residual actual pain, how much of it is basically the narcotics demon wanting things and as [Dr Lim] mentions, this is sort of dual thing is really impossible to pick apart. Not just for us but for the person themselves. So what I would advocate, really is to get [the trial] over and done with but then get the hip fixed and then look at okay, how much residual pain is there. Does it require narcotic analgesia. If it does, for the hip pain or whatever, then we need to look at the legal avenue available to use with is methadone or the – the other one, the suboxone.[145]

[145]Transcript 401-2.

1. In terms of the progress and treatment of the alleged injuries, the following emerges in relation to each of the injuries.

Jaw and nose

1. As I noted earlier, Dr Vilagosh said that the jaw ‘really hasn’t been much of an issue’ since it was wired at the RMH and the fracture to Mr Ilievski’s nose has been stable.[146]  This is in contrast to what is noted by Ms Zhou’s medico-legal specialists.  For example, the report of psychiatrist Mr Michael Silverstein dated February 2011 states that Mr Ilievski’s primary complaint is pain in his jaw.[147] 

   [146]Transcript 362.

   [147]Report of Mr Silverstein dated 15 February 2011 (Exhibit D23).

1. Mr Michael Fogarty’s report of February 2011 records that Mr Ilievski says that his jaw gives him pain and that he has difficulty chewing hard items.[148]  Mr Ilievski at the trial said that ‘if I don’t take my medication, I can feel the steel. I can feel the metal in my jaw. I can feel it. Because my mouth doesn’t close properly…’[149]  Consistent with Dr Vilagosh’s evidence, Mr Fogarty noted no abnormality and open and closing of the mouth as normal.[150]

   [148]Report of Mr Fogarty dated 21 February 2012 (Exhibit D24).

   [149]Transcript 60.

   [150]Report of Mr Fogarty dated 21 February 2011 (Exhibit D24).

Right and left hips

1. There is no dispute between any of the doctors that Mr Ilievski’s right hip is in a bad way[151] (even though he insisted that it did not rank any higher than pain in other parts of his body).[152]  He has significant osteoarthritis in the right hip, which is symptomatic.  He will require a hip replacement sooner rather than later. Because of his age, this has been deferred.  Dr Vilagosh’s view is that he should undergo surgery when the trial process is completed.

   [151]See report of Assoc Prof Goldwasser dated 9 June 2010 (Exhibit P14). 

   [152]Transcript 293.

1. It is equally clear that Mr Ilievski’s primary complaint of pain is in his right hip.[153]  As I mentioned earlier, at [17] and [31], the right hip pain predates the accident.  It is first mentioned in Dr Vilagosh’s records on 7 February 2008, some eight months prior to the accident, and that entry notes that Mr Ilievski has had the pain ‘for a while’.[154] At that time, Mr Ilievski was prescribed Mobic, an anti-inflammatory, some Panadeine Forte and Ibuprofen.  An x-ray of the right hip taken 13 June 2008, some four months before the accident, reports ‘significant right hip osteoarthritis’.[155]

   [153]Transcript 359.

   [154]Transcript 384.

   [155]Transcript 386.

1. Dr Vilagosh said that Mr Ilievski had ‘arthritis in the [right] hip and that was significant’.[156] His report of 15 October 2010 describes it as ‘chronic’.  The problem was of sufficient severity prior to  the accident that a Centrelink medical certificate of 28 July 2008 completed by Dr Vilagosh notes that ‘exacerbation’ of his right hip osteoarthritis rendered Mr Ilievski unfit for work for a month.[157]

   [156]Transcript 367.

   [157]Transcript 389 and Exhibit D15.

1. An x-ray of the pelvis and both hips, taken on the day of the accident at the RMH, reported as showing no fractures, noting ‘[d]egenerative changes affect both hip joints with moderately severe osteophytic lipping on the right side.’

1. On 9 June 2009, Mr Ilievski was referred to the RMH’s outpatients unit for further management of his persistent right hip pain.  He was reviewed on 21 July 2009 and diagnosed with moderately advanced osteoarthritis in his right hip and advanced CAM-type impingement in his left hip.[158]  He was advised that he needed a total right hip replacement at some stage.  Mr Ilievski was also advised that he required a left hip arthroscopy.[159] 

   [158]Report of Dr Treseder dated 4 November 2009 (Exhibit P17).

   [159]Ibid.

1. In regards to the left hip, Dr Vilagosh suspected that Mr Ilievski had some arthritis in the left hip but it was not something which he investigated prior to the accident.[160] In fact, it is not mentioned in his clinical notes until 20 May 2010, nineteen months after the accident. [161]  There is no mention of left hip pain in the notes of the RMH, apart from the fact that the x-ray taken on the day of the accident confirmed that degenerative changes affect the left hip.  

   [160]Transcript 362.

   [161]Transcript 391.

1. Dr Vilagosh’s opinion in relation to the connection between the accident and the left hip was rather unsatisfactory, stating that ‘all I can say is he didn’t complain about the pain before the accident.’[162] 

   [162]Transcript 363.

1. Mr Ilievski underwent a left hip arthroscopy at the RMH on 10 November 2010, and was discharged the next day.[163]  He attended follow-ups at the hospital outpatients unit and a review on 21 December 2010, where he reported improvement in his left hip pain.[164] 

   [163]Report of Dr Tu dated 23 August 2013 (Exhibit P25).

   [164]Ibid.

1. Mr Ilievski was last reviewed at the RMH on 30 November 2011, where he reported worsening of his right hip pain.  However, the left hip arthroscopy is reported to have given him ‘good symptomatic relief’.[165]. 

   [165]Report of Dr Rahim contained in the file of the RMH (Exhibit P17).

1. Since then, Dr Vilagosh has sent Mr Ilievski to a number of orthopaedic surgeons regarding his hip pain generally, including Mr John Griffiths in January 2013, Professor Richard de Steiger in April 2013, and Mr Van Bavel in July 2013.[166]  Mr Ilievski was unable to confirm exactly who he attended.[167]  Most recently, in September 2014, he was seen by Ms Anna Manolopoulos.  It appears from Mr Ilievski’s evidence that Ms Manolopoulos only saw him in respect of his right hip pain.[168]

   [166]Transcript 293-4.

   [167]Transcript 294.

   [168]Transcript 294-5.

1. Mr Ilievski has undergone other forms of treatment in respect of hip problems, including physiotherapy and hydrotherapy, which he attended briefly in late-2012.[169] It appears that he did not attend a physiotherapist until then,[170] and that this treatment was short lived.

   [169]Report of Jo Rankin dated 18 November 2012 (Exhibit P15).

   [170]Transcript 296.

Back and neck

1. When Mr Ilievski consulted Dr Vilagosh two days after he was discharged from the RMH, he reported pain in both his neck and back.[171]  As I have mentioned, the consultations that followed were mainly concerned with Mr Ilievski’s jaw pain. 

   [171]Transcript 357.

1. The clinical notes of the RMH record complaints of ongoing neck pain.  Mr Ilievski was placed in a cervical collar, which remained on for some time, and he was referred for an MRI for further investigation.  The MRI scan reported multilevel disc degenerative disease with a disc bulge at C5-6 as well as disc herniation at the T1-2 level, without any impingement.[172]  It concludes no evidence of ligamentous injury.  

   [172]Report of Dr Kim dated 16 December 2010 (Exhibit P24).

1. Mr Ilievski says that his neck pain is as serious now as his right hip pain. 

1. In respect of Mr Ilievski’s back, Dr Vilagosh said ‘[t]hat’s been sort of an intermittent problem and we have had imaging from time to time, which really has shown some minimal, degenerative changes.’[173]   CT scans of the thoracic and lumbar spine taken on the day of the accident report ‘normal alignment. No fracture or dislocation.’[174] Radiology of the lumbar spine in August 2012 revealed nothing of significance.[175]

   [173]Transcript 364.

   [174]File of the RMH (Exhibit P17).

   [175]Transcript 388.

1. Dr Vilagosh could not find reference in his notes to complaints about Mr Ilievski’s back prior to the accident, and so attributed the pain as being caused by it.[176]  

   [176]Transcript 364.

1. Mr Ilievski did not seek physiotherapy in relation to his neck or back immediately after the accident, and any physiotherapy he underwent (whether it was connected with his neck or back is not exactly clear) was not until after November 2010:

When you had physiotherapy after November 2010 in relation to your hips, that was the first time you also had physiotherapy in relation to your neck or back? - - - Physiotherapy was tried on my neck. It was too painful and left alone.

That was after November 2010? - - - Well, I wasn’t properly managed so the actual exact dates I can’t say 100 per cent but I was not properly managed no.

1. Physiotherapist Mark Summers notes that in relation to Mr Ilievski’s back, he is sure that the symptoms are secondary to compensatory mechanisms ‘i.e. minimal hip extension is causing increased lumbo-sacral extension’.[177]

   [177]Report of Mark Summers dated 17 September 2012 (Exhibit P18).

Anxiety and Depression

1. Prior to the accident, Mr Ilievski’s anxiety and depression problems were ‘ongoing’, and not just related to short term stressors.[178]  He was being prescribed up to five tablets of Diazepam a day, which Dr Vilagosh considered to be a high dosage.[179]  Dr Vilagosh now believes that Mr Ilievski is, in all likelihood, addicted to the drug, but his prescription for diazepam has remained unchanged.[180]   

   [178]Transcript 390.

   [179]Transcript 381.

   [180]Transcript 379-80.

1. Post accident, Mr Ilievski was referred for counselling by Dr Lim in mid-2009.  It is not precisely clear from his evidence exactly who he saw and how long he received treatment.[181]  As I have mentioned, Mr Ilievski was also referred to psychologist, Mr Peter Langdon, who he saw on one occasion in September 2009.   He was also referred to psychiatrist Dr Kochar, who he saw on 9, 13 and 22 July 2010.  Dr Kochar notes that Mr Ilievski’s ‘commitment to treatment and his level of motivation to attend consultations was poor; he arrived late, showed little interest in treatment and missed appointments.’[182]

   [181]Transcript 297-8.

   [182]Report of Dr Kochar dated 1 October 2013.

1. Counsel for Ms Zhou tried to flesh out exactly what psychiatric treatment Mr Ilievski has sought since the accident, but it proved extraordinarily difficult.  It is possible that Mr Ilievski saw psychiatrists Dr Michael Piperoglou or a Dr Baron in 2014, but if he did, it was only for a very short period of time.[183] 

   [183]Transcript 281.

1. What is clear is that Mr Ilievski received counselling for his anxiety and depression irregularly and minimally in the years after the accident.  Nonetheless, Mr Ilievski told me he had significant anxiety and depression as a result of the collision. 

1. I asked Dr Vilagosh to comment on Mr Ilievski’s current state:

I think it’s been probably the fact that he’s, I suppose, ossified in this place, that and the hip are the two main things, really, that he really can’t get beyond where he is. Before the accident there were ups and down but I suppose, if you look at it on a statistical basis, it was a gradual improvement in his condition and since then it’s been really quite difficult to engage him, even in actually getting the hip done.  I mean, he had quite a number of people advising him that it needs to be done, despite his youth.[184]

[184]Transcript 365.

1. He now also takes Seroquel, which was first prescribed to him by Dr Kochar in 2010.[185]  He also takes Mogadon for sleep. 

   [185]Transcript 366.

Medico-legal opinions

1. It would not serve any purpose to recite each individually, but I highlight those of significance.

1. Associate Professor Kenneth Myers examined Mr Ilievski on behalf of his solicitors and diagnosed him  as suffering

- Aggravation of pre-existing degenerative osteoarthritis of the right hip.

- Aggravation of pre-existing degenerative osteoarthritis of the left hip.

- Aggravation of pre-existing degenerative intervertebral disc disease in the lumbar spine.

- Fracture of the mandible treated by internal fixation

- Psychiatric disturbance. [186]

[186]Report of Assoc Prof Kenneth Myers dated 22 April 2013 (Exhibit P22).

1. Associate Professor Myers states that ‘[m]uch of [Mr Ilievski’s] present disability can be attributed to aggravation of pre-existing disease by the motor vehicle accident’.[187]  I do not regard this opinion of any real assistance given the inaccuracy of the history provided to Mr Myers.  There is this illuminating example in Associate Professor Myers’ report: Mr Ilievski told Mr Myers that he had been working at the Archi Design Group at the time of the accident and ‘never had disability in the right hip’.[188]  Associate Professor Myers’ opinion contains no real analysis of the effect of the accident on the symptomatic right hip or the factors he relied upon in reaching his opinion.  

   [187]Ibid.

   [188]Ibid.

1. I think Ms Zhou’s medico-legal consultant, Mr Michael Fogarty, who examined Mr Ilievski in February 2011 for an impairment assessment and provided subsequent reports, is of greater assistance than Associate Professor Myers.  He had, I think, a far better picture of Mr Ilievski’s pre-accident history, and specifically opines on the issue of the right hip and the effect of the accident upon it. 

1. Mr Fogarty found the following injuries resulted from the car accident:

(a)       Fracture of the right mandible (treated by internal fixation)

(b)soft tissue injury of right hip causing aggravation of osteoarthritis of this joint.

(c)       soft tissue injury to the right knee.

(d)      Laceration on the right side of the face (sutured).

(e)       Grazes right elbow. 

1. Mr Fogarty concluded that the accident had aggravated Mr Ilievski’s right hip osteoarthritis and it is worth repeating what he says in this regard:

·I do consider that the transport accident of 31 October 2008 caused permanent aggravation to the client’s right hip condition.

·I did not consider the aggravation by the transport accident to have ceased.

·Regarding the existence of pre-existing right osteoarthritis, I do consider it likely that the client would probably have required a total hip replacement at some stage of his life regardless of the transport accident having occurred.

You had asked whether the injury to the right hip sustained in the accident of 31 October 2008 would have aggravated the pre existing condition of osteoarthritis of the right hip to such a degree that the need for right hip replacement operation would have been accelerated. My answer to this is yes, on the basis of probabilities rather than possibilities, I do believe that the operation of right hip replacement would have been accelerated.[189]

[189]Report of Mr Fogarty dated 4 April 2011 (Exhibit D24).

1. Mr Fogarty is of the view that there is no impairment in relation to the lumbar spine due to pre-existing disease and no impairment due to loss of knee joint movement.

1. It is close to pointless to refer to the medico-legal psychiatric or psychological reports, as they depend substantially on the veracity of Mr Ilievski.  Two examples of his false statements are all that is needed to make this point. In 2010, he told Dr Kochar (who diagnosed him as suffering post-traumatic stress disorder) that he was working as a draftsman at the time of the accident, and that his drug abuse was behind him. That being said, I will mention the following. 

1. Mr James Drury, clinical neuropsychologist, reviewed Mr Ilievski in February 2011 and reported that as a result of the accident he ‘most likely sustained a very mild concussive head injury, if at all.  A head injury of this nature and extent would not be expected to produce significant residual organic brain damage’.[190]   He said:

I am of the opinion that the current pattern of mild cognitive deficits most likely relates to some combination of his pain, fatigue and psychological symptoms. It is most unlikely that he has had a head injury sufficient to result in any significant brain damage.

[190]Report of Mr Drury dated 14 February 2011 (Exhibit D28).

1. Associate Professor Paoleti diagnosed post-traumatic stress disorder, anxiety and chronic adjustment disorder.[191]

   [191]Exhibit P21.

1. Dr Andrew Firestone opined that osteoarthritis accounts mostly for Mr Ilievski’s pain.  He accepted Dr Kochar’s diagnosis of PTSD arising from the accident and, in addition, diagnosed adjustment disorder with depressed mood, secondary to pain resulting from the accident.[192] 

   [192]Report of Dr Firestone (Exhibit D22). 

1. Dr Kim of the RMH diagnosed Mr Ilievski as suffering from a ‘widespread pain condition, mostly somatic and musculoskeletal in origin’,[193]

   [193]Report of Dr Kim dated 16 December 2010 (Exhibit P24). 

Findings as to Mr Ilievski’s injuries related to the accident.

1. As I hope has become clear, endeavouring to identify what injuries were sustained by Mr Ilievski in this accident is particularly difficult given his inability to give a reliable account. 

1. I am satisfied that Mr Ilievski suffered fractures to his jaw and nose, which required treatment at the RMH, as I have described.  I am also satisfied that the injury to his jaw continues to cause him some discomfort, notwithstanding that it has not been the subject of complaint to Dr Vilagosh for some time.  Any issue with his nose has resolved.

1. I also conclude that Mr Ilievski sustained soft tissue injuries to his knee, neck and back, given what is contained in the RMH notes and the contemporaneous complaints made to Dr Vilagosh about those body parts.  However, I am not satisfied that any of these injuries are of significance in terms of major ongoing symptomology.

1. As I said earlier, I am satisfied that Mr Ilievski continues to experience right hip pain of some severity, and that he will in due course require a hip replacement. Whether this condition, or any part of it, has a relationship to the accident is a separate issue.

1. In his report of 15 October 2010, Dr Vilagosh diagnosed ‘exacerbation of the R hip pain’ as an injury sustained in the accident.[194] However, at trial, he qualified that view considerably by saying that ‘there’s no objective way, really’ to quantify the extent of exacerbation.[195]  Dr Vilagosh also said that if Mr Ilievski undergoes an operation in the near future then given his age there is high prospect of a second hip replacement at some point.

   [194]Exhibit P8.

   [195]Transcript 361.

1. Ultimately, I am persuaded that it is likely that Mr Ilievski suffered an aggravation of his right hip condition in the accident  I have reached this conclusion for two reasons.  First, given the presence of the pre-existing condition and understanding the severity and mechanics of the collision it makes eminent common sense that this condition was stirred up by his impact with the car and then the road.  Second, and perhaps more authoritatively, I think that Mr Fogarty’s opinion (which is consistent with Dr Vilagosh’s) should be accepted on this point.  He had a reasonably accurate history (at least he knew about the hip problems prior to the accident via documentation) and considered the extent of aggravation in some detail in his report of 4 April 2011, which I have extracted.

1. I am also satisfied that, immediately prior to the accident, Mr Ilievski was  facing, in  the long term, a right hip procedure.  Using Mr Fogarty’s analysis, the time and place has now been brought forward and perhaps turned  a certainty into a dead certainty.  I think that damages can be assessed on this basis.

1. I am unable to conclude that Mr Ilievski suffered any injury to his left hip as a result of the accident.  His unreliability as a historian (I apologise for the repetition) makes the task extraordinarily difficult.  There is no convincing evidence from either the notes of the RMH or Dr Vilagosh’s entries in the months after the accident that the left hip injury was a consequence of the accident.  Indeed, he did not mention the left hip to Dr Vilagosh until May 2010.[196]  Mr Fogarty does not identify the left hip injury as being caused by the accident and I accept his opinion.  I discount the opinion of Associate Professor Myers, which was based on an inadequate and misleading history. 

   [196]Transcript 391.

1. Accordingly, damages for both pain and suffering and loss of earning capacity are to be assessed on the basis of the nose and jaw fractures, the aggravation of the right hip condition and minor injuries to the knee, neck and back. 

1. I also accept that there may have been a degree of anxiety and depression associated with the incident, but that the major psychological issue is that related to Mr Ilievski’s drug addiction.  Simply put, the opinions of those doctors that attributed the accident as the cause of his anxiety did not have the full picture.

Damages for pain and suffering

1. It is appropriate to repeat what was said by Fullagar J over 50 years ago in Paff v Speed[197] of damages for pain and suffering, which are:

[o]f their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much at large.  They are also at large in the sense that a jury has in serious cases wide discretion in assessing them.[198]

[197](1961) 105 CLR 549.

[198]Ibid 559.

1. For reasons I have set out, it is close to impossible to formulate any accurate assessment of the level of Mr Ilievski’s pain and suffering: his reliability as a historian is nil and therefore the extent to which he actually suffers pain from one or more of the injuries is difficult, and at times impossible, to determine.  Moreover the effects of his drug addiction colours many of his complaints.

1. The injuries to the jaw, nose, neck and back have been discussed.  The extent to which the aggravation of the right hip condition, over and above that which Mr Ilievski  would have suffered in any event, is fraught with difficulty.  I think as a matter of common sense one must allow that there is some additional pain and suffering  contributed to by the aggravation.  In addition, there is an allowance for the fact that he will come to hip surgery at an earlier point of time.  As a matter of logic (there is no opinion on this precise issue) I think this means that there is a slight prospect that he will have to undergo a second bout of hip surgery, which may have been avoided if the hip condition had taken a natural course.

1. Ultimately, doing the best I can, I assess Mr Ilievski’s damages under this head at $125,000.

Damages for loss of earnings and loss of earning capacity.

1. I have set out at [11]-[26] the details of Mr Ilievski’s work and personal history.

1. I should deal first with Mr Ilievski’s assertions as to his employment at the time of the accident.  It seems clear that at the time of the accident, apart perhaps from the occasional work at the Glen Iris property (for which there is no evidence of remuneration), he was not engaged in employment in the three years prior to the accident. In effect, choices he made as to lifestyle meant there was no meaningful exercise of his earning capacity during that period.

1. At trial, his case for specific loss of earnings as a result of the injuries turned upon the evidence of Mr Peter Jazevski.

1. Mr Jazevski operates a business known as P J O’Rourke Constructions.  He is a registered builder and carpenter by trade, who has known Mr Ilievski since 2001.[199] His account was as follows:

   [199]Transcript 546-7.

·     In 2008, he had been subcontracted by a builder, Jimmy Trjcevski, to carry out the fixing of a 24-unit property at Thomastown.[200]  Desperate for labour, on Wednesday 29 October 2008, he asked Mr Ilievski to assist, agreeing to pay him a rate of $200 per day, commencing Monday 3 November.

·     On the Monday, Mr Ilievski did not turn up to work.

·     Mr Jazevski went to Mr Ilievski’s parents’ house that day and was told that they had no idea where their son was.[201]

[200]Transcript 549.

[201]Transcript 548-9.

1. Mr Jazevski produced a diary, which he said recorded the offer of employment.[202] The entry is part English, part Macedonian, part black pen and part blue pen.  On Wednesday 29 October 2009 it states:

   [202]Physical diary of Mr Jazevski (Exhibit D20). 

Go to Kare to see Robert
So Robert se pogodice

Da pocni ponedelnik $200 per day

On Monday 3 November the entry in English states

Robert starting today
As we agreed

Go to Bunnings by [sic] lock
Go to Robert at Home

1. I regard Mr Jazevski’s account as unbelievable for a number of reasons.  First, the diary entries raises more questions than they answer.  In cross-examination Mr Jazevski tried to explain why he wrote the words ‘as we agreed’ in the alleged Monday entry:[203]

Why? I don’t know. You tell me why I write it down.

I am asking you. Why did you write “as we agreed”? - - - As we agreed that – to be on time and to pay him $200 a day. That’s it.

But this is in your diary, not his diary? - - - Yes. Why would you write “as we agreed” on 3 November in your diary? - - -He’s supposed to start as we agreed, yes.  As agreed on that previous – on 29, as we agree, that he is going to start on the 3^rd and I write it down: “Robert to start today as we agree.” It’s very simple….

That’s what I am saying to you it’s very odd that you have written in English on 3 November: “Robert start time today as we agreed”? - - - What’s wrong with that?

Why didn’t you write down in your diary: “Robert didn’t turn up”? - - - That’s why I went there. After work – I didn’t have to write down because I had in my mind because I could not forget that. That’s why I didn’t write it down and at that night I went to their place to find out why he didn’t turn up.

[203]Transcript 562-3.

1. The expression ‘as agreed’ in the Monday entry does not gel satisfactorily with the rest of the contents of the diary.  It is an extremely odd entry for a builder to make.  Moreover, on the Monday, there is no mention in the diary of a job with ‘Jimmy’.  If Mr Jazevski truly had a job on Monday 3 November, I think there would have been mention of that job in the diary on that date.  Even more surprising, Mr Ilievski, who was unemployed, was not put to work by Mr Jazevski, who was desperate for labour, on the day the agreement was supposedly made, Wednesday 29 October, but instead five days later, the day prior to Melbourne Cup.

1. Second, the nature of the agreement beggars belief.  Mr Ilievski, who lived in Watsonia, was being offered a job in Lalor/Thomastown. It came out of the blue.  On Mr Ilievski’s original account he was committed to work at Glen Iris. There was no discussion with Mr Jazevski as to how he would get to the site.  At the time his licence was cancelled.

1. Third, I find the story concerning Mr Jazevski’s visit to the Ilievski household on the Monday following the accident as unlikely.  The idea that Mr and Mrs Ilievski had no idea what had happened to their son is fanciful  He had been knocked down outside their house and the accident would certainly have been a subject of discussion amongst neighbours including Ms Critsilis, who lived across the road.  Notwithstanding that his parents had dropped Mr Ilievski off so that he could return home, I find it strange that they had no idea what had happened to him given the circumstances of the accident. 

1. Mrs Ilievski said that she did not find out about the accident until a couple of days afterwards.[204] She said ‘[j]ust because you have warned someone doesn’t mean you are going to wait there for him to be hit by a car.’ She said that she and her husband tried to call their son but he did not answer the phone. 

The telephone was either turned off or we couldn’t get through. We just waited and then after that, my daughter took over the calling and then a day went by and we realised that something had actually happened to him.

Does that mean that you found out about Robert’s accident on the Saturday? - - - I don’t know what day we found out…

Did you go see him in hospital? - - - Straightaway when we found out. 

What day was that, that you went to see him in hospital? - - - I don’t remember. I don’t remember what date. [205]

[204]Transcript 596.

[205]Transcript 596-7.

1. Finally, there are the vast number of inconsistencies in Mr Ilievski’s version that, far from corroborating a job offer, count against such an arrangement.  If such an agreement had been entered into between the two men then it would, if genuine, have been set out by Mr Ilievski in the TAC claim, which asked specifically about offers of employment at the time of the accident.[206]  There is no mention of it, and it is to be remembered that it was completed by him only two months after the accident.  Mr Ilievski was living at home with his parents when the claim was completed and it is inconceivable that, if true, this would not have been averted to.   It is not mentioned in the pleadings or particulars. It was never volunteered to any doctor who enquired as to his work history.  I repeat that the first mention of this alleged job offer was on the fourth day of the trial.

   [206]See [37] above.

1. All in all, the story and its background does not survive any rational test of credibility. 

1. It suffices to say that I am not satisfied that there was any offer of employment that was disrupted by the injuries sustained by Mr Ilievski in the collision.

1. The stark reality is that, at the time of the accident, Mr Ilievski was unemployable.  He was continually in and out of gaol.  He was drug addicted and on and off methadone programs. He had been in receipt of unemployment benefits for two years. The extent of his problems is summed up by the following: five days after being discharged from hospital, Mr Ilievski was apparently apprehended by police and subsequently charged with theft (amongst a number of other offences).[207]

   [207]Exhibit D14(j)

1. Because of the vagaries surrounding Mr Ilievski’s capacity to work prior to the accident and, for that matter, since the accident, regardless of the effect of his injuries it is impossible to carry out the type of calculations often made in personal injury claims for past economic loss and (by reference to actual loss of earnings) in relation to future economic loss (by reference to multipliers and anticipated earnings).[208] It follows that it is impossible to allocate any specific sum for past loss of earnings. It is equally difficult to endeavour to fix a sum for loss of earning capacity in the future by reference to a multiplier or a set rate of earnings. 

   [208]See Smith v Gellibrand Support Services Inc [2013] VSCA 368 (Gellibrand),[74].

1. The principles applicable, in this case, in assessing both past and future loss of earning capacity are those set out by Ipp JA in Seltsam Pty Ltd v Gharleb[209] and adopted by the Court of Appeal in Gellibrand:

   (a)In the assessment of damages the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.

   (b)The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.

   (c)The court must form an estimate of the likelihood of the possibility of alleged future events occurring.

   (d)These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.[210]

   [209][2005] NSWCA 208 (Seltsam),[103].

   [210]Gellibrand [71].

2. Gellibrand also involved a consideration by the Court of Appeal of the well-known principles  contained in Watts v Rake[211] and Purkiss v Crittenden[212] relating to the onus of proof and the relevant evidentiary burden facing the parties.  I return to what was said by Ipp JA in Seltsam and referred to with approval in Gellibrand:

What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott at).  Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.

Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.

Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.

Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.

As was pointed out in Newell v Lucas (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries.  Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.[213]

[211](1960) 108 CLR 158.

[212](1965) 114 CLR 164.

[213]Gellibrand [72] (citations omitted).

1. Finally, I note what was said as to assessment of damages for loss of earning capacity by Heydon JA in State of New South Wales v Moss:

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.[214]

[214](2000) 54 NSWLR 536 (Moss), [71].

1. The application of these principles in this case leads to the following conclusions.

1. First, I am not satisfied that Mr Ilievski at the time of the accident had any more than a nominal earning capacity.  He had been on unemployment benefits for two years, was heroin addicted and was in and out of gaol.  I have rejected the proposition that he was engaged in any form of remunerative employment or had any real offers of employment on the table.  Even if I accepted that he had any offer of employment I could not conclude that he could have undertaken such work.

1. Second, very little has changed in relation to Mr Ilievski’s lifestyle since the accident.  The only bright note in his history is that since 2010 he has avoided any entanglement with the justice system.  He has remained addicted to heroin, and  I am not prepared to attribute any specific loss of income in the past to the effects of the injuries. 

1. Third, the only injury that may meaningfully affect his earning capacity, either past or future, is the aggravation of his right hip osteoarthritis.  In my view, each of the other injuries (jaw, nose, back, knee, neck and anxiety) related to the collision are minor and do not prevent him exercising any earning capacity that he may still possess.  His osteoarthritic right hip is different.  Clearly it will affect his capacity to carry out work if it was capable of being exercised. I am satisfied, by the evidence of Mr Fogarty and Dr Vilagosh that Ms Zhou has discharged any evidentiary burden as to the extent of the aggravation of Mr Ilievski’s condition.  The onus remains on Mr Ilievski to establish what effect, if any, it has played in his symptoms.  As I have attempted to articulate, the accident has played a very minor role in the aggravation of that condition. 

1. In this situation, where the Court is faced with highly problematic evidence about the exercise of earning capacity and equally problematic evidence about the effect of the accident upon any residual earning capacity it can only do ‘the best it can’.[215]

   [215]See Biggin & Co Ltd v Permanit Ltd (1951) 1 KB 422, 438.

1. In Moss, Heydon JA essayed at considerable length about the difficulties facing courts in the assessment of damages for impairment of earning capacity where the evidence was difficult, in some cases impossible, to evaluate[216] and concluded:

In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages.[217]

[216]Moss [72], [73].

[217]Moss [87].

1. This case, of course, does not involve anything like an unquestionable reduction of earning capacity.  But it does involve an established  aggravation, albeit minor, of a significant injury to a relatively young man who really had only one asset – his fitness and his health. 

1. I think that an allowance of $50,000 is appropriate for loss of earning capacity, both past and future, based upon the effect of the aggravation of the right hip condition.

Conclusion

1. Mr Ilievski has not established that Ms Zhou’s negligence was a cause of the injuries he sustained in the accident.

1. Mr Ilievski’s proceeding will be dismissed and there will be judgment for Ms Zhou.