Jay v Baker

[2018] NSWDC 270

District Court

New South Wales

Medium Neutral Citation:	Jay v Baker; State of NSW (TAFE NSW Previously TAFE Commission) v Baker [2018] NSWDC 270
Hearing dates:	13-15 June 2017; 4-5 December 2017; 23-24 April 2018; 26-27 April 2018; 30 April 2018-1 May 2018; 17 August 2018; 31 August 2018 (last written submissions received)
Date of orders:	25 September 2018
Decision date:	25 September 2018
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for Ms Jay against the defendant in the 2015 proceedings. (2) The defendant in the 2015 proceedings is to pay the plaintiff's costs of those proceedings as agreed or assessed. (3) Judgment for the plaintiff in the 2016 proceedings against the defendants. (4) The defendants in the 2016 proceedings are to pay the plaintiff's costs in those proceedings as agreed or assessed. (5) Liberty to the parties to apply to vary the costs orders in paragraphs 2 and 4 above within 14 days. (6) The parties in both proceedings are to bring in agreed Short Minutes of Order within 14 days reflecting the reasons for decision. In the event that agreement cannot be reached, the parties should approach the Associate to Dicker DCJ to have the matter listed for further directions. (7) The exhibits are to be retained until further order.
Catchwords:	Torts-negligence-motor vehicle accident - whether plaintiff pedestrian was negligently struck by passing vehicle driven by defendant - blameless accident provisions - extent of injuries - gratuitous care issues - indemnity claimed by employer - whether psychiatric illness caused by accident - previous medical condition - whether hip injury caused by accident – whether accident connected to plaintiff’s employment – whether closed period appropriate for loss of future earning capacity – relevance of apparent improvement in plaintiff’s physical condition
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW) Workers Compensation Act 1987 (NSW)
Cases Cited:	AAI Ltd v State Insurance Regulatory Authority of NSW [2016] NSWCA 368 Allianz Australia Insurance Ltd v Serria Girgis [2011] NSWSC 1424 Afoa v McBride [2017] NSWCA 323 Ausgrid v Settree Pty Ltd [2015] NSWCA 407 Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Axiak v Ingram [2012] NSWCA 311 Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 Bird v Commonwealth (1988) 165 CLR 1; [1988] HCA 23 Boateng v Dharamdas [2016] NSWCA 183 Calcagno v Dent [2015] NSWDC 308 Curtis v Harden Shire Council [2014] NSWCA 314 Davis v Swift [2014] NSWCA 458 Dent v Calcagno [2016] NSWCA 289 Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263; [1999] NSWCA 250 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21 Hyjer v Lopes [2018] NSWDC 8 Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59 Malec v Hutton (1990) 169 CLR 638; [1990] HCA 20 Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 Mason v Demasi [2009] NSWCA 227 New South Wales v Moss (2000) 54 NSWLR 536 OCS Australia Pty Ltd v Cho [2010] NSWCA 85 Perrett v Sydney Harbour Foreshore Authority [2009] NSWSC 1026 Pham v Shui [2006] NSWCA 373 Podrebersek v Australian Iron and Steel [1985] HCA 34; (1985) 59 ALR 529 South Eastern Sydney Area Health Service v Gadiry [2002] NSWCA 161 Spratt v Perilya Broken Hill Ltd [2016] NSWCA 192 State of New South Wales v Chapman-Davis [2016] NSWCA 237 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Sydney Harbour Foreshore Authority v Perrett [2010] NSWCA 160 The Star Pty Ltd v Mitchison [2017] NSWCA 149 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Category:	Principal judgment
Parties:	Katrina Marie Jay (Plaintiff 2015/193834) State of NSW (TAFE NSW Previously TAFE Commission) (Plaintiff 2016/26942) Edward Baker (Defendant 2015/193834; First Defendant 2016/26942) Wendy Elizabeth Baker (Second Defendant 2016/26942)
Representation:	Counsel: K Andrews (Plaintiff 2015/193834) P Tierney (Plaintiff 2016/26942) J Gracie (Defendants) (13-15 June 2007); L McFee (4-5 December 2017 onwards)   Solicitors: Stacks Goudkamp (Plaintiff 2015/193834) Turks Legal (Plaintiff 2016/26942) Moray & Agnew (Defendants)
File Number(s):	2015/00193834; 2016/00026942

CONTENTS

Paragraph
Judgment	1
The plaintiff’s evidence
The plaintiff’s oral evidence
Evidence in chief	8
Cross-examination of the plaintiff	63
Re-examination of the plaintiff	111
Further cross-examination	120
Evidence of Mr Robert Jay
Evidence in chief	154
Cross-examination of Mr Jay	165
Evidence of Mr John Maginnis	174
Evidence of Mr Warwick Jay	190
The plaintiff’s tender bundle - Exhibit A
The plaintiff’s liability report - the report of Mr N McDonald dated 6 May 2015	203
Evidence on behalf of the defendants
Oral evidence of Mr Edward Baker
Examination in chief	211
Cross-examination of the first defendant	214
Oral evidence of Ms Louise Lynch
Examination in chief	230
Cross-examination of Ms Lynch	236
Liability report of the defendant - report of Mr G Urquhart dated 21 December 2015	242
The defendants’ tender bundles
Joint liability report	245
Submissions of the parties on the liability issue concerning the accident	247
Factual findings on the liability issue	251
The Medical Evidence
The plaintiff’s medical evidence	274
Reports of Dr Gareth Thomas, Sports Medicine Doctor	275
Report of Dr Steven Ruff, Orthopaedic Surgeon	296
Report of Dr Andrew Cree, Orthopaedic Surgeon	297
Reports of Dr Matthew Lyons, Orthopaedic Surgeon	298
Reports of Dr Ian Thong, Pain Management Specialist	300
Reports of Ms N Toner, Psychologist	302
Dr M Patfield, Psychiatrist	311
Report of Professor Khadra, Urologist	313
Rehabilitation reports	314
Reports of Dr T Duncan, psychiatrist	319
Radiological reports	329
Clinical records of Dudley Private Hospital	332
Plaintiff’s medico legal and MAS reports
Reports of Dr James Bodel, Orthopaedic Surgeon	333
Reports of Dr Brian Burke, Psychiatrist	336
Reports of Dr M Ling, Rehabilitation Physician	346
MAS reports	351
The Defendants’ Medical Evidence	354
Reports of Dr Michael Shatwell	355
Reports of Dr S Roberts	379
Occupational therapy report of Ms N Taylor-Fick	391
Report of Dr R Sekel	405
Report of Ms I Jurkowski, Rehabilitation Counsellor/Vocational Assessor	409
Report of Dr PL Harvey-Sutton	410
Report of Ms Hoskins-Murphy, psychologist	419
Further material relating to Dr Mohamed Khadra	421
Conclave expert psychiatric report of Drs Roberts and Burke	425
Conclave cross-examination of Dr Burke and Dr Roberts	439
Pre-accident medical notes	471
Anson Medical Centre Orange	477
Caro Consultancy notes	480
Submissions in relation to medical findings	485
Medical Findings
Introduction	489
Ms Jay	490
Pre-accident findings	491
Physical injuries in or arising from the accident	495
Psychiatric injuries arising from the accident	501
Evidence of the State of New South Wales	517
Evidence of the plaintiff Ms Jay	519
Section 151Z of the WCA	521
Consideration	525
Duty of care and breach	544
Causation	555
Contributory negligence	560
The blameless accident provisions	572
Damages
Introduction	577
Each party’s submissions	579
Non-economic loss	580
Past out-of-pocket expenses	584
Future out-of-pocket expenses	587
Future equipment	591
Past domestic assistance	592
Future domestic assistance	595
Past economic loss	597
Superannuation on past economic loss	599
Future economic loss	600
Superannuation on future economic loss	608
Fox v Wood	609
Reduction for contributory negligence	610
Conclusions	611
Disposition	612

Judgment

1. Before me are two proceedings which arise out of a motor vehicle accident which occurred on 22 August 2013 in which the plaintiff in one proceedings, Ms Katrina Jay, suffered injuries.

2. In the first proceedings, Ms Jay sues the driver of the motor vehicle which struck her when she was at or near her parked vehicle, for damages in the tort of negligence under the provisions of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”).

3. In the second proceedings, Ms Jay’s employer at the time of the accident, TAFE New South Wales, sues the defendants who were the owner and driver of the motor vehicle which struck Ms Jay for an indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) (“WCA”). The plaintiff has been receiving workers compensation payments and benefits from her employer since the accident. The State of New South Wales, being the entity which sues the defendants in that matter, seeks the indemnity for the amount of compensation which has been paid to the plaintiff Ms Jay along with medical and related costs together with interest: See Further Amended Statement of Claim filed 24 April 2018. The defendants deny any such liability: Amended Defence filed 26 April 2018, paragraphs 3 and 11-12.

4. In the first proceedings, the plaintiff Ms Jay sues the defendant driver of the motor vehicle Mr Baker first, in negligence and, if liability is not established, seeks to recover damages under the “blameless accident” provisions in MACA.

5. In paragraph 5 of the Statement of Claim filed 2 July 2015 in the first proceedings, particulars of a breach of duty of care of the defendant are set out as follows:

PARTICULARS OF BREACH OF DUTY OF CARE

i)   Failure to keep a proper lookout.

ii)   Driving at a speed that was too fast having regard to the prevailing circumstances.

iii)   Failing to keep his vehicle a safe distance from where the plaintiff was waiting next to her vehicle.

iv)   Failing to keep his vehicle a safe distance from parked vehicles.

v)   Failing to brake, steer and/or otherwise control the vehicle so as to avoid a collision.

vi)   Failure to sound a warning of the potential risk of collision with the plaintiff.

vii)   Failure to observe the door of the plaintiff's vehicle being opened and/or closed.

6. Liability has been denied by the defendants in both proceedings. In the alternative, contributory negligence is relied on: Defence filed 4 November 2015; Amended Defence filed 26 April 2018.

7. As the case developed, it became clear that the central question to be determined was whether the plaintiff was struck when she was standing immediately adjacent to her motor vehicle or whether she had taken one or more steps to cross the road without looking to her right before she was struck by the vehicle. In his Defence in the first proceedings, the defendant says that the plaintiff, without warning or looking, walked in front of his motor vehicle, providing no opportunity for him to avoid the collision and that the plaintiff should therefore be regarded as the sole cause of the accident.

The plaintiff’s evidence

The plaintiff’s oral evidence

Evidence in chief

8. The plaintiff gave evidence that she lived at Clifton Grove which was about 10 kilometres outside Orange in country New South Wales. She stated that she lived on five acres with her husband.

9. A chronology in relation to the plaintiff was confirmed by her as being correct and it was part of the plaintiff’s tender bundle which became Exhibit A. This showed that the plaintiff was born in May 1961, making her 52 on the date of the accident and 56 at the time of the commencement of the hearing. The chronology showed that after completing high school and obtaining the Higher School Certificate, the plaintiff began working at Zinc Corporation Australia whilst studying part-time. The plaintiff completed a Bachelor of Business Studies graduating in 1984. After working as an accountant, the plaintiff began teaching accounting in the TAFE system and then, in due course, moved to administration duties within the TAFE system. The plaintiff gave evidence that she worked part-time for 10 years before commencing fulltime work.

10. The plaintiff married in 1983 and had four children. She worked part-time while the children were small and fulltime after the birth of her last child. The plaintiff gave evidence that on the day of the accident she was performing in an acting role as Director Strategic Performance Management in the Department of Education and Communities. She gave evidence that the substantive officer in that position was on leave and the acting position was for an indefinite period. The acting role provided the plaintiff with a higher level of income. See Exhibit D behind tab 23 and Exhibit F page 74 for details of the plaintiff’s employment history.

11. The plaintiff gave evidence that both her substantive position and the acting position required her to drive long distances throughout country New South Wales. Sometimes this required the plaintiff to be away for a week as she did a circuit visiting various country towns in the State.

12. The plaintiff said that in November 2013 after the accident on 22 August 2013, there was a restructuring in the TAFE system as a result of the State Government introducing a new funding model. The plaintiff said that she was offered a position in that new restructuring as Director of Customer Service and Facilities in TAFE. This involved her being paid the same amount of money as in her previous acting position.

13. The plaintiff gave evidence that prior to the accident she lived on her current property of five acres with her husband who was employed as a mines inspector and who also travelled extensively in his job. The property had dogs, cats and chickens on it. At the time of the accident her four sons were adults and had left home.

14. The plaintiff gave evidence that on the property was a four bedroom house which had two bathrooms, a kitchen, family room, lounge and an inside laundry. The plaintiff said that in relation to the inside of the house, prior to the accident she undertook all domestic chores. The plaintiff stated: “I did everything”. In relation to the outside, the plaintiff gave evidence that the property had substantial gardens and the plaintiff did a lot of the gardening including trimming the hedges and some lawn mowing. On occasions her four sons helped but she did the bulk of the work. The plaintiff said that she and her husband had owned the property for slightly more than one year prior to the accident.

15. The plaintiff gave evidence that prior to the accident she was involved in daily exercise. This included going to the gym several times per week in Orange, undertaking personal training sessions and being involved in a runner’s club which involved running several times per week. The plaintiff indicated that if she was travelling she also engaged in running. It is clear that the plaintiff was very fit and active prior to the accident.

16. The plaintiff said she undertook substantial social activities with her group of friends, saw her family, travelled, and rode bicycles and walked whilst on holidays.

17. The plaintiff then gave evidence in relation to the day of the accident. The plaintiff said she was working on that day and at lunchtime drove to an appointment in Woodward Street, Orange (later evidence established the appointment was with a Ms Anderson, a psychologist). She said she parked her manual Nissan Patrol four wheel drive at the side of the road in an area near the entry to a football oval. This involved parking her car on the left hand side of the road. The plaintiff said that she stopped the vehicle, put it in forward gear, put the handbrake on, turned the engine off and took the key out of the ignition. The plaintiff gave evidence that she then checked the mirrors, being the rear vision mirror and the right hand side mirror for traffic before opening her door. The plaintiff gave evidence that she was “paranoid” about opening her door before looking as a friend had had her door damaged as a result of opening her door.

18. The plaintiff said she was wearing work clothes which included red shoes, a skirt, a jumper and a red overcoat which was three quarters in length as it was a cold day in August in Orange. The plaintiff said she also had a red handbag: T11.19; T12.8.

19. The plaintiff gave evidence that after she turned the engine of the car off, she had the car key in her hand. She said that after looking in the mirrors she opened her door and reached over and retrieved her bag from the passenger seat. She then said she stepped onto the ground and closed the door and locked it with the key. The plaintiff then stated that she placed the car key in a zipped compartment in her handbag. The handbag was in front of her when she did this. She then placed the handbag onto her right shoulder and adjusted her scarf: T12.8.

20. The plaintiff gave evidence that she went to turn around when she got hit in the “back”: T12.12. She gave evidence that she heard a noise at the same time as she was hit and did not expect a car. The plaintiff stated that she was thrown in the air and landed with a hard landing on her back to the side of the road. The plaintiff gave evidence that she noticed a line on the road and her head was on the line or just over the line when she landed. The plaintiff recalled looking at the side of the car which she assumed to be the car which struck her and saw damage to the car. The plaintiff was conscious at the time and she recalled just wanting to go home.

21. People attended the scene quickly including the man who she understood to have been driving the car which struck her. The man tried to help her up and she recalled a woman telling her to get up. The plaintiff repeated that she just wanted to go home. The plaintiff said she was looking down the road and could see herself, a space, the gentleman’s car which she believed hit her and then her car.

22. The plaintiff said that she was struck in the sacrum area in the middle of the back more to the left leg than the right leg. She noticed that she had bruising. She noticed later that her bruising was worse on the back of her left leg.

23. The plaintiff said that she recalled saying to the man, “I’m so sorry”. She said she felt dreadful for damaging his car. The plaintiff then stated that she said words to the effect: “I know it’s all my fault. Can someone help me to the car. I just want to go home. Can you help me up?” The plaintiff gave evidence that the man said to her words to the effect: “It’s alright love. Don’t worry about that. I’m not worried about the car.” The plaintiff noticed that the gentleman was elderly and he was shaking.

24. The ambulance and the police were called and an ambulance took the plaintiff to hospital. The plaintiff gave evidence whilst she was in the ambulance a police officer put his head into the ambulance through the side door opening. The plaintiff confirmed that she said to the policeman at the time words to the effect: “It was my fault.” The plaintiff said that she said it was her fault because she was very concerned about the gentleman who was older and shaking a lot.

25. The plaintiff said that she was taken to the Orange Hospital where she spent about a week and had considerable pain in her back, at the top of her buttocks and in the sacrum area. She said she had pain in the ankle and the elbow but the majority of the pain was in her back. The plaintiff confirmed that she had not seen the vehicle which struck her in the rear vision mirror or the driver’s right hand side mirror before alighting from her vehicle.

8. The plaintiff gave evidence that she went home after about a week and was in incredible pain. She said she could not do much. The plaintiff said that the main pain was in her back.

9. After several weeks, the plaintiff stated that she went back part-time to work on reduced hours. She said this did not include the driving duties of her job but included attending meetings and attending video conferencing.

10. The plaintiff said that initially her son took her to work and collected her after the working day completed. The plaintiff said it was “incredibly difficult” for her to drive due to the pain of putting her foot on the clutch.

11. The plaintiff was taken to a photograph at page 24 of the liability report of her expert, Mr McDonald (Exhibit A, page 30), and she confirmed that the photographs shows the approximate position where her car was parked on the day of the accident and the red coat which she was wearing at the time of the accident.

12. The plaintiff was then asked questions in relation to her return to work. The plaintiff said she was off work for several weeks then initially returned to work part-time for the period 18 October 2013 to 11 December 2013 working four hours five days per week. She then increased her hours in the period December 2013 to 12 January 2014 to six hours per day five days per week. The plaintiff gave evidence that she was not performing her pre-accident duties, in particular she found travelling, including travelling to different locations in Orange, to be difficult.

13. The plaintiff gave evidence that for periods in 2014 she was unable to go to work because of experiencing bouts of shingles and being unable to function emotionally due to pain, anxiety, not sleeping and not able to perform her functions in her job.

14. The plaintiff said that she had difficulty driving distances for work and only attempted it when she was in the presence of other officers who could drive. The plaintiff confirmed that she had driven to Canberra and back to visit her sons and to attend a wool spinning activity with which she was interested. She drove by herself but stopped on occasions. She said she felt discomfort when she arrived in Canberra and stopped at least once on the way home.

15. The plaintiff gave evidence that she commenced fulltime restricted duties on 5 January 2015 but left work in March 2015. She said she had become suicidal. The plaintiff gave evidence that work was “incredibly important” to her and she believed she was not doing her job properly: T23.21. She was not engaging with her colleagues and was angry and short with them. The plaintiff said she was unable to cope with the stress of the job together with the pain she was suffering and the medications she was under as well as the pressure from her superiors to re-engage in the travel in her job: T23.26-.31. The plaintiff said she believed she suffered something like a nervous breakdown and had decided to kill herself and not worry about things any more: T23.29.

16. At about this time the plaintiff gave evidence that she saw a pain specialist and this was the first time she had spoken to someone who understood the pain she was suffering. Later evidence showed this was Dr Thong. The plaintiff stated that she started to see a psychologist, as she knew she was not managing and was anxious. The psychologist was Ms Natalie Toner.

17. The plaintiff stated that Ms Toner referred her to a psychiatrist who was initially Dr Patfield and in due course she was referred to another psychiatrist, Dr Duncan. The plaintiff said that she saw Ms Toner every two to three weeks and Dr Duncan every two to four weeks. At the same time, the plaintiff saw Dr Thong, the pain specialist, every three months in Bathurst as well as undertaking physiotherapy every three to four weeks. The plaintiff stated that the physiotherapist concentrated on building up her core muscles around her back, hip and buttocks.

18. The plaintiff gave evidence that she had some symptoms of incontinence which started on the day of the accident. She said these symptoms had reduced due to medication and exercise but she still had some symptoms.

19. In relation to medication, the plaintiff said that Dr Duncan had prescribed her with several medicines which were quite expensive. She confirmed that the workers compensation insurer paid for all her medical expenses and medication expenses.

20. In relation to when the plaintiff intended to work to, she gave evidence that her children had left home and that she loved her job and intended to continue working in it. She also said she enjoyed travel as she saw different people. She gave evidence that she could not go back to work as she was still struggling with pain as well as having anxiety and difficulty sleeping. She said she did not believe that she had come to terms with her symptoms arising from the accident. On some days the plaintiff said that she could not get out of bed for the day and this occurred once or twice per fortnight.

21. In relation to driving, the plaintiff said she could drive but she was an anxious driver and was “hyper alert” when driving. The plaintiff gave evidence that seeing car accidents on television often made her cry and she then turned off the television or went to another room: T29.

22. The plaintiff gave evidence in relation to her current symptoms. She said that she was right hand dominant. In relation to her left leg, that continued to give her problems. The plaintiff said she continued to have pain around her left hip going down to the knee: T27.2. She said her hip clicks and her leg “turns out”. She said she did not have full range of movement in her left leg without considerable pain: T27.2.

23. In relation to her garden, the plaintiff said she chose only to move in the area of her garden close to the house where it was more even. Areas further away from her house were uneven and she had a fear of falling.

24. In relation to sitting, the plaintiff gave evidence that sitting for any length of time caused her discomfort. Pain was caused whilst sitting going from the outer part of her left hip towards the centre part of her lower back. On occasions the pain had been assisted by a kneeling chair. This was helpful to the sacral pain but bad for her hip pain.

25. In relation to her sleeping, the plaintiff said she did not sleep all night and that she woke up during the night depending on the pain. Taking some medication helped her with sleeping.

26. The plaintiff was then asked some questions in relation to her self-management and the domestic chores around the house. The plaintiff said that she was able to look after her showering and toileting although she could not do so for a time when she got out of hospital and relied on her husband and her sons for several weeks including assisting her on and off the toilet.

27. The plaintiff said that she was able to interact now only with the smaller dogs but not the bigger dogs and could not get back to dealing with chores relating to the chickens which her husband now did.

28. The plaintiff said her motivation was very low presently and she was not interested in things. She did not go out much socially and tended to stay at home watching television. The plaintiff gave evidence that her memory was not quite as good as it had been before and she could not hold information in her head. Prior to the accident her job required her to have extensive knowledge of education and training within the TAFE system.

29. In relation to a recommendation for surgery, the plaintiff said that she intended to follow the recommendation but was reluctant to undertake it just at the moment. She said she would also follow other advice given by doctors for treatment.

30. The plaintiff gave evidence that she had difficulty cutting her toe nails and needed a pedicure or assistance from her niece. She said it was too painful to undertake the task of lifting her foot towards her to undertake the cutting of the nails.

31. In relation to physiotherapy, the plaintiff said she was following the instructions of the physiotherapist in relation to exercises and was also using specialist equipment such as a ball to sit on and the use of a yoga mat and pillow and a cushion for the car. In relation to the shower the plaintiff said that she used a wooden chair in the shower to hang on to where necessary.

32. Prior to the accident, the plaintiff said she had undertaken interstate and overseas travel socially including on a walking holiday. She had previously travelled economy class but found after the accident that it was very constricted and she had to get up and move around frequently.

33. The plaintiff then gave evidence in relation to domestic duties around the house. Initially the plaintiff could do very little and her husband did the domestic duties around the house from the date of the accident on 22 August 2013 until December 2013. This included making the bed, doing the washing, hanging out the clothes and bringing them in, shopping, cooking, vacuuming, mopping, ironing and gardening. The plaintiff said that her husband spent at least 10 hours per week undertaking these tasks which she normally did.

34. In the period from December 2013 until October 2014 her husband did less around the house as she undertook some cooking and ironing but that he still undertook about seven to eight hours per week doing tasks which she had previously done.

35. In October 2014 the plaintiff had surgery to her left hip and she was on crutches for three to four weeks. During this time her husband assisted her with dressing and showering which increased his duties about another three and a half hours per week for a period.

36. Between November 2014 and March 2015 her husband undertook about seven to eight hours duties and the time her husband spends in domestic duties has not changed since she finished work in March 2015 (this evidence was given by the plaintiff in June 2017: T34.7-.11).

37. The plaintiff said it was simply too painful for her to undertake many tasks such as mopping and vacuuming. Her husband also does her shopping and the gardening which she previously did. The plaintiff gave evidence that prior to the accident she often spent most of Saturday in the garden. Some of this is now undertaken by her husband and some duties such as weeding and trimming of plants were simply not undertaken.

38. The plaintiff gave evidence that she has had some improvement to her symptoms since the accident after she gave up work but a lot of her problems still persisted. She said that the medication she took did not take away the pain but sometimes it took the edge off the pain.

39. In relation to her work salary, the plaintiff said she initially took sick leave and initially received her normal salary then it was reduced.

40. The plaintiff gave evidence that she now had trouble going down stairs and tended to lead with her left leg whilst holding on to the rail.

41. The plaintiff gave evidence that she did not at present have a great ability to remain calm and both her sons and her husband had found her a little frustrating as she cried often and was frequently very distressed. The plaintiff said that she had side effects from the medicines prescribed by her psychiatrist including dry mouth, constipation, difficulty waking up and difficulty concentrating.

42. The plaintiff gave some evidence in relation to some stressful incidents at her TAFE job prior to the accident. These incidents included trouble with a finance manager well before the accident which resulted in her taking time off work and making a workers compensation claim (evidence tendered by the defendant showed that this incident occurred in 2000, 13 years before the accident: See Exhibit 1D6). The plaintiff said that the finance manager indicated that he would shoot people. The plaintiff said that these problems had resolved and she had returned to normal duties.

43. In addition, a student in the TAFE system had been killed horse riding which had caused trauma at work (evidence showed this occurred in March 2009). The substantive officer for whom she was acting was on leave because of this incident. The plaintiff said that she saw a psychologist as she had never dealt with anything like that at work before and was unsure how to assist people through the problems. She said at that time there were a lot of changes in documentation of activities in the TAFE system: T37.43.

44. The plaintiff also gave evidence that she had injured her ankle in the accident and she experienced discomfort in her hamstrings. She said this affected her ability to climb stairs and sit for lengthy periods: T38.25.

Cross-examination of the plaintiff

63. The plaintiff was subjected to an extensive cross-examination. This occurred mainly in the first stage of the trial in June 2017 but also occurred in April 2018.

64. The first area of cross-examination was in relation to stress which the plaintiff had prior to the accident on 22 August 2013. The plaintiff confirmed that she had time off work on a workers compensation claim before the accident. This arose from conflict with an officer in the finance department of TAFE in 2000-2001. The plaintiff made a worker’s compensation claim at the time and a return to work plan was arranged for the plaintiff to return to work in April 2001. The plaintiff agreed that at this time she had the perception that she was constantly harassed and intimidated at work by the finance manager. She also confirmed that she spoke to a psychologist at the time. She said this arose from the finance manager threatening to shoot people. The plaintiff said that in late 2000 she held the position as Campus Manager for the Lachlan TAFE and was responsible for the administration and student records for five colleges.

65. The plaintiff was then asked about her dealings with doctors at her general medical practice. She confirmed that she had attended a particular medical practice, although not exclusively, since 2006. The plaintiff confirmed that she had been prescribed the antidepressant drug Pristiq prior to the accident. The plaintiff gave evidence that she had been diagnosed with renal cancer in 2011 and was recovering from it. She said she had trouble confronting the issue of whether she would live or die. In answer to the suggestion that she had trouble coping with stress at work prior to the accident, the plaintiff claimed that work kept her going and that she really liked work.

66. The plaintiff was asked questions about her suffering shingles to the face in early 2013 and it was suggested to her that this was a reaction to stress at work. The plaintiff said she did not know whether it was connected with stress at work. The plaintiff was taken to a number of entries in the notes of her general practitioner, Dr Khin, which suggested that she was very emotional and not coping in her job. The plaintiff agreed that she had been referred to a psychologist. She gave evidence that she did not attend the psychologist as she thought she would be fine and she had difficulty getting an appointment: T45.46 cf T37.32 and T48.26. This evidence was later shown to be incorrect. The plaintiff confirmed that she did not know at the time that shingles were connected to stress.

67. The plaintiff was then taken to an entry in the notes of her general practitioner Dr Khin which indicated that Dr Khin had increased her dose of Pristiq from 50mg to 100mg as she was not coping at work and was very emotional. The plaintiff agreed that there was stress at work but said she was still anxious in her recovery from the renal cancer which had been diagnosed. In the end, the plaintiff agreed that her dose of Pristiq had been doubled at the time. She also agreed that in May 2013 she was seeing a psychologist and found it beneficial. She agreed that there was stress at work in May 2013 and she was not sleeping well. The plaintiff also confirmed that she had a recurrence of shingles which she put down to being scared of dying of cancer although she agreed that she also had stress at work at the time: see generally at T46.21-T51.

68. The plaintiff was then cross-examined in relation to medical notes of Dr Khin for 14 June 2013 where he indicated that the plaintiff was very stressed and was crying. She agreed she had a stressful job at the time. Despite the entries indicating that the plaintiff was not coping at work, the plaintiff said she could not recall having this problem in the three months prior to the accident. She was then taken to Dr Khin’s note which stated “thinking of quitting job”. The plaintiff said she could not recall this although she assumed that the note was accurate. She said she had no recollection of saying this: T51.14. Although the plaintiff agreed that Dr Khin prescribed an increase in Pristiq to 150mg at this time, she said that she only ever took 100mg. In answer to the suggestion that she took 100mg of Pristiq daily both before and after the accident, the plaintiff said that she now believes she takes 200mg a day which was prescribed for her by Dr Duncan, her treating psychiatrist. The plaintiff seemed vague about her Pristiq doses. She confirmed that in June 2014 she attempted to wean herself from Pristiq by taking 50mg every second day. In answer to the suggestion that it was wrong to tell the court that doctors had prescribed her a dose of 200mg of Pristiq, she denied that and said that it had been prescribed by Dr Crane. Initially the plaintiff had identified Dr Duncan or Dr Patfield as the correct doctors. The plaintiff agreed that she had never been prescribed more than 200mg of Pristiq per day and in answer to the suggestion that she had never been prescribed 200mg, she said that she recalled Dr Crane advising her to take 200mg per day but she may be mistaken on that: T54.18.

69. The plaintiff was then cross-examined extensively in relation to what had occurred on the day of the accident.

70. The plaintiff was taken to the photograph in Mr McDonald’s liability report at page 24 which is page 30 of Exhibit A. The plaintiff confirmed that the location of the four wheel drive vehicle in the photograph was the general area where she parked on the day of the accident although it could have been out by a small distance. She also confirmed that she appeared in the photograph and that she was wearing the red coat which she was wearing on the day of the accident.

71. The plaintiff was asked questions about the location in which she was standing in the photograph in page 30 of Exhibit A. She said that she did not wish to stand for the purposes of the photograph closer to the road although she agreed that she had discussed with the expert standing and facing in the manner she was when she was struck by the vehicle. She agreed that when she was struck she was facing the door of her car slightly turned around. She agreed that she had been hit by the bull bar of the defendant’s car but made an assumption at the time that she had hit the passenger side of his car. She agreed that she thought she had damaged the defendant’s car and that was why she was very apologetic to him. The plaintiff agreed that she now knew that she had hit the bull bar on the front of the defendant’s vehicle and not the side of the car as that part of the vehicle had hit her back.

72. The plaintiff recalled speaking to a police officer when she was in the ambulance soon after the accident. She was taken to the police notebook of Senior Constable Andrew Wotton for 22 August 2013 (defendant’s bundle Exhibit 1D4 page 104) which stated:

“Spoken to in Ambulance stated: I’m so sorry, it’s my fault, I was thinking about other things and didn’t look. Please tell that man that I am so sorry. I’ve got other things on my mind. I just walked out in front of him.”

73. The plaintiff confirmed that she had said to the policeman words to the effect: “It was my fault”: T58.18. She agreed that saying this had stuck in her mind. She also agreed that it appeared that the police officer had written out what she had said. It was put to the plaintiff that she was speaking the truth when she said that she was thinking about other things. The plaintiff said she did not recall saying it, although she did not doubt that it was probably accurate that she did say it: T59.8.

73. It was put to the plaintiff that she wanted to explain to the police officer why it was her fault being that she was thinking about other things. The plaintiff said she did not recall saying this although she conceded that she probably said it. It was put to the plaintiff that it was true that she did not look and the plaintiff denied this: T59.11; T59.37. She said she did not recall saying that part of what was in Senior Constable Wotton’s notebook. In the end, the plaintiff said that she did not say this. It was put to the plaintiff again that she did not look and she confirmed that she did not look over her shoulder in the direction that the defendant’s vehicle was coming before turning around: T59.43. Following further cross-examination, the plaintiff confirmed that once she had exited from her vehicle she did not look in the direction from which the defendant was driving: T60.4. The plaintiff said she was not sure of the precise direction she was facing when she was hit but she confirmed again that she was not looking in the direction from which the defendant’s car was coming.

74. After further cross-examination, the plaintiff confirmed that she believed she said words to the effect: “Please tell that man that I’m so sorry. I’ve got other things on my mind” but she did not recall saying “I just walked out in front of him.” The plaintiff said she was “really confused” at the time and she recalled just wanting to go home: T61.24.

75. The plaintiff confirmed that on 2 September 2013 she attended Orange Police Station and made a further statement to Constable Sean Webb. This appears at page 112 of the defendant’s tender bundle Exhibit 1D4. The plaintiff said that at this time she was about to go to hospital at Royal North Shore and was happy to sign anything to get out of the police station. However, she confirmed that she believed that what she said to the police was true and she agreed that she signed it as she agreed with the contents of the statement.

76. The statement included the following:

“4. I stopped my car and checked the rear vision mirror to stop my car door from being damaged. I then got out of my car and closed the driver’s side door and locked it.

5. At the time I was wearing a three quarter length bright red overcoat and it was button up.

6. I would say that I was standing on the road for around seven to ten seconds to lock the vehicle and check the door. I then put the keys into my handbag, all of this while still facing the car.

7. I then started to turn back to the right. I was looking down at my chest area at my scarf. I was then hit from behind. I was hit in the back of my right leg and buttock.

8. I would say that I had turned nighty [sic] degrees and sit [sic] at the driver’s door. I cannot recall if I had taken a step away from my car, if I did it would not have been more than one step. I did not have time to look at the road to see what was coming.

9. I then felt a tremendous hit to my body and a thud noise. I heard the brakes screech, then I realised it was a car. I fell airborne into the ground and I said at least three times in my mind don’t land on your head. I felt a massive whack on my back and I hit the road. I immediately threw myself over onto your left side away from the car.

10. I recall elderly male approach [sic] me and he said, “You just walked out in front of me. I don’t know where you came from.” The male took hold of me and offered to help me up. I said, “I can’t, I’m in too much pain.” The male seemed physically shaking. I said, “I’m very sorry.” I was worried about the elderly male.

…

13. A short time later an ambulance came and were treating me. I remember having a conversation with a police officer. I said to the police officer that “It’s all my fault.” When I said this to the police officer I only said this because I was concerned about the elder male driver. I was worried that he might have a heart attack at how badly he was shaking, I was embarrassed and I just wanted to go home. I believe that I was suffering from shock.”

78. In cross-examination, the plaintiff confirmed the accuracy of paragraphs 4-10 of the statement. In paragraph 6 where it states: “I was standing on the road” the plaintiff said that she meant that she was standing on the bitumen of the road. She agreed that it took seven to 10 seconds to lock the vehicle and swivel around. The plaintiff confirmed again that she did not look in the direction from where the defendant came. She said that she had looked before getting out of the car in the rear vision mirror and the side mirror. She said it was a long road and she did not see any car coming towards her. She said that she did not believe that she needed to look again in the direction from which the defendant’s vehicle came as she had already checked in the mirrors before getting out of the car. The plaintiff confirmed that this could have taken up to 14 seconds to go through the process of getting out of the vehicle but said that she was not checking the time and she thought it was safe where she was standing. She agreed that it was possible that her buttocks were protruding slightly over the “fog line” along the side of the road.

79. In relation to the suggestion that it was easy for the plaintiff to look over her shoulder in the direction from which the defendant came, the plaintiff said she was going to look but had not turned around to look to start crossing the road. She believed she was close to the car and there was no risk of being hit. She agreed that she said that she was standing right next to the door of the car but did not once look up the road towards where the defendant came from. In answer to the suggestion that the plaintiff was anxious to blame someone other than herself for the accident the plaintiff denied this.

80. The plaintiff was then taken to the personal injury claim form which was signed by her on 8 August 2013 and which became part of Exhibit 1D6 volume 3 in the proceedings (see behind tab 9 page 37). The plaintiff was asked questions about the diagram of the accident and the description of the accident on page 9 of the claim form (page 39). In relation to the diagram, the plaintiff gave evidence that her husband drew the diagram based on what she had told him and she checked the diagram to see if she was happy with it before she signed the claim form.

81. The plaintiff was then taken to the detailed description of the accident. This relevantly provided as follows (page 39):

“… I checked my rear vision mirrors and blind spot before opening the car door; there were no vehicles approaching. I am always particular about doing this because a friend had her door hit, I have only reasonably recently moved to Orange and wanted to avoid a similar accident. In addition, Woodward Street is a long straight road and so cars tend to be driving rather fast, at the speed limit or above along this stretch. I made very sure there were no cars approaching before opening the door and alighting. I stepped out of the vehicle, closed and locked the door with the key, placed the key in my handbag and started to turn towards the road. It would have taken me several seconds to do all of this. I was wearing a long bright red overcoat at the time. It could be described as fire engine red. I was at the edge of the road for several seconds at least I would have been very obvious to any vehicle traveling up the road towards me. I cannot believe any driver with any attention on the road ahead would have failed to see me. I was not on the road proper I was still at my car door when hit. The vehicle must have been driving too close to my vehicle and that is how he hit me."

82. Ms Jay confirmed that these were her words, although she did not recall whether she typed that part of the form. Ms Jay was taken to that part of her description of the accident in which she states: “Woodward Street is a long straight road and so cars tend to be driving rather fast, at the speed limit or above along this stretch.”

83. The plaintiff agreed that she knew that cars drove fast along that part of Woodward Street at or above the speed limit. In answer to the suggestion that it would have been prudent for her to look around to see if cars were approaching, the plaintiff said that according to her judgment seeing the absence of vehicles in her mirrors, she had adequate time to get out of the car and lock the door. The plaintiff agreed that on the assumption that the defendant was travelling at 40kph and that she had seven to 10 seconds to see his car, that she had an opportunity to see the car and did not do so. It was put to the plaintiff that she made an error of judgment in not looking to see if there was a car approaching. The plaintiff did not agree with this. She agreed that it was a matter of judgment but gave evidence that she was smaller than the door of the car and that if she stood close to the door she was not in danger. She then gave evidence that she had shut the door and locked the door and was standing close to the door.

84. In the light of the fact that cars sped along Woodward Street, the plaintiff agreed that it was a dangerous place but that she did not look for cars whilst outside her vehicle as she believed she was safe. It was further put to the plaintiff that if she had looked for the defendant’s car and had seen it the accident would not have happened because she would have avoided being hit. The plaintiff said she did not agree with that suggestion. It was again put to the plaintiff that if she had looked she would have seen the defendant’s vehicle and had seven to 10 seconds to do that. The plaintiff said that she was not sure of this but she may have had time to do that. She said she never expected a car to come towards her and to hit her. It was put to the plaintiff that she could have got out of the way if she had looked and seen the defendant’s car. The plaintiff said she was not sure of this but she would have attempted to get out of the way of the defendant’s car if she had believed that it was likely to hit her. The plaintiff confirmed that if she had known the defendant’s car was coming at her she would have got out of the way. She agreed that she failed to look towards the direction that the defendant’s car was coming when she got out of the vehicle.

85. The plaintiff was then taken to the sentence which read: “I stepped out of the vehicle, closed and locked the door with the key, placed the key in my handbag and started to turn towards the road. It would have taken me several seconds to do all of this.” The plaintiff agreed that this was accurate and she said that she had not started to walk across the road but had started to turn towards the road. The plaintiff was then taken to the sentence which included: “I would have been very obvious to any vehicle travelling up the road towards me.” She agreed that the defendant’s car would have been obvious to her if she had chosen to look in that direction upon exiting the car. The plaintiff said that although she did not look in the direction from which the defendant’s car came for oncoming vehicles she believed she was not in the dangerous part of the road and that she was standing in a safe space.

86. An alternative version of what occurred from a female witness was then put to the plaintiff. It was put to the plaintiff that she had her back to the traffic and took a step back before possibly taking a step forward into the lane. The plaintiff denied this and said that she was standing side on to the traffic, had started to turn around and did not recall taking a step into the lane of traffic. It was suggested that the plaintiff had her buttocks protruding over the fog line towards the road lane. At T66.33 in answer to the suggestion that the plaintiff’s buttocks at least might have been encroaching on the fog line, the plaintiff answered, “my bum’s not that big but they might have been. It might have been.” Later the plaintiff said that she doubted whether her buttocks were protruding over the line. She then said that she did not know whether they were on or within the line but they could have been within the line.

87. It was suggested to the plaintiff that she had one of her feet in the roadway. The plaintiff said she could not deny this as she was turning around. It was put to the plaintiff that she stepped out into the roadway and the plaintiff denied this. The plaintiff further denied that she put herself in the way of the oncoming vehicle. In answer to the suggestion that she swung her leg and stepped into the path of the vehicle the plaintiff said that she took a step to start to turn around before she was hit. She denied that her recollection in her evidence was false and was being given in an attempt to win the case. She confirmed that she had no recollection of saying to the female witness words to the effect: “It’s all my fault.”

88. The plaintiff was then asked questions in relation to what she said to the male driver. The plaintiff denied that the male driver had said that she was on the road. She also denied that she was in the middle of the road or walking across the road. In answer to the question whether the plaintiff claimed to have a clear recollection of events, Ms Jay said she clearly recollected starting to turn around. She agreed that her eventual intention was to walk across the road but she had only moved one foot to turn. Whilst denying that she had started the motion to walk across the road she agreed that her physical movement was consistent with movement to cross the road. The plaintiff confirmed again that at no time did she look towards the oncoming traffic after exiting the vehicle, even though she knew that cars travelled along the road at or above the speed limit.

89. The plaintiff was asked numerous questions in relation to surveillance film and a car trip which she had taken to and from Canberra after the accident. The plaintiff gave evidence that she had driven to Canberra by herself to see her sons and had met up with them for coffee. The plaintiff confirmed that she was aware that surveillance film had been taken of her in relation to her trip to Canberra in November 2015. She agreed that she met up with one son in the Canberra suburb of Braddon and then proceeded with him to meet with her other son in the Canberra suburb of Manuka. The plaintiff agreed that this trip to Canberra was a distance of some 290km each way. She believed that her husband was working on that day. The reasons she gave for going alone were that she had a new car, was comfortable with her medication and in herself and the car was an automatic. She said she also had a new cushion to sit on for the purposes of the trip. The plaintiff said she wanted to try the car on the trip and also wanted to see her sons. She agreed that she left Orange to go to Canberra at 9.30am and stopped for a short period in a park in Boorowa before proceeding to Canberra. The plaintiff could not recall sitting with her first son for an hour without standing up or sitting down in the car and at a café for two and a half hours continuously, but agreed that this may have been the case.

90. The plaintiff gave evidence that she used her car to see her doctors in Orange. She also confirmed that she drove once every three months to see Dr Thong who had moved to Bathurst. She said she was only able to undertake this driving trip if she had an “appropriate psychological framework” to do it herself. The plaintiff gave evidence that while she could drive the manual vehicle she had before, the new automatic car was much easier. The plaintiff also confirmed that she had travelled to Sydney on holidays as she had a number of family members in Sydney. She said she would have done this on more than one occasion by car. The plaintiff indicated that sometimes she drove part of the way, depending on the vehicle and how she was at the time but she would not have driven the full way.

91. The plaintiff was taken to entries in the records of Dr Thomas in 2014 in which she had indicated that she had steady improvement in her sacral pain. The plaintiff said she accepted this if it was reflected in the records. She also accepted that she had told Dr Thomas that she had made good progress and was swimming and walking regularly. One entry suggested that the plaintiff had driven 90 minutes to Dubbo without significant exacerbation to her condition. The plaintiff gave evidence that she could do driving duties, including going to Dubbo with her job, if she had the appropriate mental and physical state on that day. She also agreed that she had driven to Dubbo and travelled with other people. The plaintiff said that she had driven to Dubbo as she was trying to get back to her normal duties and the TAFE vehicle supplied was a smaller automatic vehicle. The plaintiff also conceded that Dr Thomas, in February 2015, had certified the plaintiff as having a recommended driving allowance of 200km per day.

92. The plaintiff was then asked a number of questions about her work environment in 2015. The plaintiff confirmed that she had told Dr Patfield, a psychiatrist, in March 2015 that she found work very difficult. She also confirmed that she thought her boss was giving her the “most stressful work” and that she was being “actively bullied.” The plaintiff gave evidence that her boss told her do her job including all that was required including country driving. The plaintiff gave evidence that the bullying consisted of her boss saying to her when she told her when she had to have a hip operation words to the effect: “Not again, we better replace you.”

93. The plaintiff denied that she was a person who was “highly geared” to make workplace complaints: T87.31. The plaintiff gave evidence, however, that she did complain about her chair and desk when she went back to work after the accident. She was asked not to stand in meetings as it was distracting to other persons: T88.6. The plaintiff conceded that her employer, including her rehabilitation officer Pam Kelly, had acquired all necessary office furniture to allow her to engage in a return to work programme at the end of 2015. The plaintiff confirmed that she had not resigned in March 2015 from her job but had stopped going to work at that time. She confirmed that eight months had elapsed when she was not working. She denied that she kept putting extra stipulations on her return to work to her employer to make it impossible for the employer. The plaintiff confirmed that she asked for a “micro desk” to assist with her work and this was provided. The plaintiff confirmed that she required to come back to her normal job as that was her position and that is what she liked doing. She said that she “clung” to her job as she wanted her normal life back: T92.30.

94. The plaintiff also gave evidence that the employer allowed her to have an office at premises in March Street in Orange which included a bigger office and room for her executive assistant to move with her. The area had a separate office with space for her to lie down if necessary. The plaintiff said that all of her requests were actioned by her employer including the acquisition of new office equipment recommended for her use by the rehabilitation officer, Pam Kelly. The new furniture allowed her to sit and stand with an adjustable desk as the previous “micro desk” did not accommodate her needs. The plaintiff agreed that she worked from November 2014 12 hours per week on three days. The plaintiff agreed that she avoided going to meetings at TAFE’s Forest Road premises including working more than her stipulated four hours per day because proper seats were not available to her at Forest Road. The plaintiff said that she was restricted to working only four hours per day at this time. These clear instructions were provided to the plaintiff, according to her evidence, by Ms Kelly.

95. The plaintiff denied that she was only willing to work on her terms. She agreed that at this time in December 2014 she was happy with the safety and adequate provision of furniture for her work environment and was keen to return to work. The plaintiff agreed that her employer had done everything requested of it by her and she moved to fulltime work. The plaintiff agreed that as far as she was aware there were no impediments to her returning to work on a fulltime basis and she wanted to do so. However, the plaintiff confirmed in her evidence that as at January 2015 she was still suffering from constant pain in the sacrum and that affected her ability to attend to her full duties both at work and at home: T104. The plaintiff agreed that in January 2015 she was being called every day to the Forest Road TAFE premises for a one hour meeting. She found getting in and out of the car to be a problem and working full hours was difficult with the pain which she suffered: T105.

82. The plaintiff agreed that at a meeting with Pam Kelly and others in February 2015 she stated that she had a plan to “end it all”. The plaintiff confirmed that she was referred to the community mental health unit. The plaintiff said that at this time she believed that her superior was making it difficult to perform her duties in the work place as she would not agree with the plaintiff participating in meetings via videoconferencing from her March Street office. The plaintiff said that her boss wanted her to attend some meetings in person and she refused as this was difficult to do as she was instructed not to stand up in meetings: T106-T107.

83. The plaintiff was then asked questions about her employment status in January 2016. She confirmed that as that time she was still an employee of the TAFE Institute. She agreed she had contact with Pam Kelly in February 2016 in relation to her return to work; however, the plaintiff said the work was to return to Forest Road which she regarded as being unsuitable. She also said that no work was offered to her. She accepted that Pam Kelly had told her that the work place would be modified for her. The plaintiff agreed that she had told doctors that her work was very stressful but gave evidence that she loved her job. She agreed that she told a doctor that she thought that her employer wanted to get rid of her and that was the impression that she had formed.

84. Ultimately the plaintiff said the person who made the decision to stop turning up to work with her employer was herself. In answer to the question whether that was because she was in pain, the plaintiff said that it was because she decided to kill herself as she could “no longer retain control”. The plaintiff said she had been battling for several months to keep going to work and keep her job and her life. She stated that she could no longer psychologically do it and that she was “googling ways to kill herself.” She even arranged a plan to commit suicide: T119-120.

85. The plaintiff was then asked a series of questions about personal care and domestic chores.

86. She agreed that her husband used a ride on mower. However, the plaintiff said that prior to the accident the hand mowing was done by her and a large area of the garden needed to be hand mown: T117. She agreed that her husband was still capable of doing the lawns and mowed the majority of the lawn area on a ride on mower: T117.38-.50.

87. In her evidence, Ms Jay agreed with counsel for the defendants that her brother and his wife had come to stay with the plaintiff shortly after the accident in 2013 and had stayed in her house for a period of time and assisted with cleaning the house, preparing the meals and undertaking domestic activities. The plaintiff could not recall how long they had stayed but when they left her husband took over the domestic activities.

88. The plaintiff confirmed that her husband was a mines inspector and he travelled in his job. She agreed that he could be away with his job for up to a week on an irregular basis. She said it was very rare that both of them were away at the same time. In answer to a question as to whether he could cook and clean for himself, the plaintiff said that her husband relied on takeaway food prior to the accident if she was not there and food which she had left for him to eat other than him preparing simple meals. She gave evidence that her husband invariably did not wash clothes while she was away but left it for her to do upon her return.

89. The plaintiff agreed that she had substantial difficulty for the four months to the end of 2013 in doing anything around the house as she was in incredible pain: T128.41. The plaintiff agreed for at least the first three months after the accident she needed assistance with dressing, showering, putting her shoes on and domestic duties such as cooking, cleaning and laundry. The plaintiff confirmed that as at February 2016 she was independent in all aspects of personal care apart from needing a pedicure every two months. She did the cooking in the house and the dusting whereas her husband did the mopping of the floors. The plaintiff accepted that the mopping of the floors in the house took about 45 minutes per week: T130.8.

90. The plaintiff agreed that she undertook most of the washing and the ironing but her husband put heavy items into the washing machine and hung them on the line. These included his work clothes and the mats for the dogs of which there were about 15 and were washed every week: T138. The plaintiff agreed that it took about six minutes to peg their bed clothes on the line and about a further ten minutes for the dog mats: T137-138.

91. The plaintiff agreed that she could undertake light shopping but could not push a laden trolley. Her husband assisted with the heavier shopping.

92. The plaintiff confirmed that her driving was limited to about 30 minutes before she experienced lower back and hip pain. She agreed that she had been able to drive to Canberra with a short break but experienced pain in driving after half an hour.

93. In relation to an overseas holiday to New Zealand in about April 2015 the plaintiff said that she flew economy class and had to get up regularly to stretch. The plaintiff gave evidence that the holiday to New Zealand was planned so that she would have something to look forward to because of her suicidal ideation. She confirmed that she had seen doctors in New Zealand but did not need to see doctors upon her return because of pain. She agreed that she could travel again to New Zealand adopting the same standing up and stretching strategy. The plaintiff said that she did not know whether she could tolerate longer overseas trips.

94. The plaintiff was then asked about information she had provided a rehabilitation consultant for the purposes of an earning capacity report in April 2017. The plaintiff confirmed that she had said that she was independent in showering and dressing, could undertake cooking, was able to do some shopping for small items but that her husband completed many other tasks around the house including pegging out the washing and bringing it in.

95. The plaintiff confirmed that she had told the rehabilitation officer that she had initiated a return to work in June or July 2016 but was not offered her old job back but was offered a research role. The plaintiff also said that at that time her employer could not find the special chair and desk which had been available to her previously in her position in her March Street office. The plaintiff also said that the offer was of a position working in an open office and she did not feel psychologically safe in that position because her fellow workers were asking questions about her condition.

96. The plaintiff said that she was told by the Rehabilitation Officer, Pam Kelly, that her old desk could not fit in the location but that an alternative desk arrangement was offered. The plaintiff said she was physically unable to raise and lower the desk as she needed. She was taken to the office and the desk available was demonstrated but it was hard to operate and she needed help with it. The plaintiff said that the desk raising and lowering device was obviously heavy and difficult and she would have needed help. The plaintiff said that her manager said she could ask people to assist her but the plaintiff said that it needed adjustment every half an hour and she thought it would be disruptive to ask people. She was told that her special chairs could not be located. The plaintiff denied that she invented specious impediments to prevent her return to work: T141.45.

Re-examination of the plaintiff

111. In re-examination the plaintiff gave some important further clarifying evidence in relation to the accident and other issues.

112. The plaintiff was taken to the photograph appearing on page 24 of Mr McDonald’s reports at Exhibit A page 30. The plaintiff confirmed that when she was standing putting the key into the lock to lock the car on the day of the accident she was facing “probably” in a south-east direction: T170.43. The plaintiff confirmed that she was unsure after she placed her key in the zipped compartment of her bag as to whether she took a step: T171.3. The plaintiff confirmed that she was intending to cross the road and to do that she would have faced the western side of the road to walk frontwards across the road: T171.8. The plaintiff also confirmed that she was going to turn to the right in order to face the western side of the road because I was sort of “half facing that … way”: T171.13. In order to turn to the right to face across the road the plaintiff said:

"A. My foot would've gone back, because that's how I believe I was going to turn around, but I just don't know if my foot went all the way to the road, or ‑ I was just going to turn around, yes." (T171.19-.21).

113. The plaintiff then gave evidence that she believed she used her “right foot to step backwards and this step made her body turn towards the right: T171.30-.43. The plaintiff said that at the time she was hit she was facing “probably south” and “maybe partly to the east”: T171.45-172.2.

114. The plaintiff was then asked questions in re-examination about her taking of the antidepressant Pristiq. The plaintiff confirmed that she currently took Pristiq in a dose of 200mg. She said it was prescribed for her by Dr Duncan, her treating psychiatrist: T171.13. The plaintiff said that she had been taking 200mg of Pristiq since at least November 2016 and it could have been before then: T172.24. The plaintiff gave evidence that she had seen Dr Crane who had prescribed Pristiq before she saw Dr Duncan and Dr Duncan had increased her dose: T172.42; T173.5.

115. The plaintiff confirmed that she had seen a number of rehabilitation providers and had been given a number of return to work plans. Ms Jay gave evidence that she understood that she had to adhere to the restrictions placed on the medical certificate which allowed her to return to work, including the number of hours she was permitted to work: T173.42.

116. The plaintiff was then asked what occurred in relation to domestic duties if her husband went away between Monday to Friday. She said that if that occurred the jobs did not get done and he had to do the domestic chores when he returned. The plaintiff confirmed her evidence at T34.5-.11 that the plaintiff’s husband completed domestic duties previously undertaken by the plaintiff for about seven to eight hours per week on average: T174.29. The plaintiff said that if her husband was away her niece, one of her sons, her sister-in-law or her brother comes to help: T174.46.

117. In relation to the plaintiff’s tiredness in driving, she confirmed that in February 2015 when she was supposed to drive to Wellington she had felt tired by Molong which was about 30 minutes from her home. The plaintiff said she “was embarrassed to have to admit that I couldn’t get there [to Wellington]”: T175.29.

118. Ms Jay then gave some evidence when she was working “full hours” in her job. She said that when working full hours she was not doing her full duties: T176.26. The plaintiff gave evidence that she had restrictions on the location that she should work from, her hours of work, her travel and lifting of items of a particular weight: T176.38. These were restrictions she had to comply with as part of her return to work plan.

119. The plaintiff finally gave evidence that her normal manner of crossing the road was not to look for traffic with her back to the road but to look to her right, her left and then back to the right again when she crosses a road: T177.36-.43.

Further cross-examination

120. The hearing of the case occurred in several parts due in the main to the necessity to obtain further psychiatric expert reports and the availability for cross-examination of specialists. In the third period of the hearing of the matter in April 2018, the plaintiff, Ms Jay, was further cross-examined in relation to a number of matters following the service by the parties of additional expert medical evidence and leave being granted to the plaintiff in the 2016 proceedings to file an Amended Statement of Claim.

121. In relation to cross-examination by counsel for the State of New South Wales, Ms Jay was asked a number of questions in relation to her routine whilst working with the TAFE prior to the accident. Ms Jay confirmed that as part of her conditions of work she was supposed to have a lunch break each day of 30 minutes. This could occur at any time during the day and there were no restrictions on her as to where and how she would take it. Ms Jay gave evidence that the way she took her lunch break varied and that she did not remain at the TAFE every day for her lunch. Sometime she ate her lunch at her desk or in a meeting or in her car going to another place of work or while she was talking on the phone.

122. Ms Jay gave evidence that her duties took her away from the TAFE office where she worked and she attended other places in Orange for appointments or meetings which also occurred during her lunch break.

123. On the day of the accident, 22 August 2013, Ms Jay gave evidence that she left her office at the TAFE to go to an appointment with another appointment being scheduled straight after. She said her first appointment was with Rebecca Anderson, later identified as a psychologist in Woodward Street in Orange. The plaintiff said she believed she had not taken her lunch break on that day as it was only midday. She could not recall whether she had eaten her lunch. After her first appointment with Ms Anderson she was to proceed to meet a Ms Baxter who was the TAFE Institute Director: T309.10.

124. The plaintiff confirmed that after the accident she made a workers compensation claim as she was advised to do so: T309. At the time she did not understand what was covered by the claim but she agreed that she received weekly benefits from 23 August 2013 in workers compensation payments: T309.45.

125. The plaintiff then confirmed a document which became Exhibit 2D5 as recording accurately payments she had received in workers compensation benefits and other payments relating to medical and like expenses. Only one or two names were unfamiliar to her on this document. She agreed that the other persons and entities had provided services to her in relation to her injuries arising from the accident: T310.32.

126. The plaintiff confirmed that the time of the accident was just before midday and she had taken her lunch with her but had not yet eaten it. Ms Jay confirmed that in relation to leaving the TAFE to go and do her own personal business, she was not required to seek approval from anyone at the TAFE: T311.8.

127. The plaintiff was then further cross-examined by counsel for the defendants. The first area of cross-examination related to the plaintiff's claim for workers compensation. When asked whether she made a claim for workers compensation shortly after the accident, the plaintiff said she must have done but she could not recall doing it. The plaintiff could not recall completing additional documents in relation to her workers compensation claim including obtaining a certificate from a doctor from the hospital. However, the plaintiff confirmed that she signed a workers compensation claim form when shown it. She agreed that someone assisted her to complete the document and that parts of the form were completed by her. She did not recall who completed the rest of the form.

128. The plaintiff was then asked questions in relation to the appointment which she was planning to attend with Ms Rebecca Anderson in Woodward Street Orange shortly before and on the day of the accident. The plaintiff confirmed that at the time of the accident she was going to see Rebecca Anderson who was a consultant psychologist at Caro Consulting. When asked the reason why she was seeing Ms Anderson, the plaintiff said: “It was about some matters that had gone on at work in relation to the death of a student and different management changes that had to happen around that”: T320.13.

129. The plaintiff was cross-examined in detail in relation to her reasons for seeing Ms Anderson on the day of the accident. The plaintiff maintained throughout her evidence that the reason she was going to see Ms Anderson related to work issues and how she would manage those work issues relating to staff and ongoing changes at the TAFE. She noted that the director responsible in the area where she was working was on leave and she was acting in her position. The plaintiff maintained that she was at Ms Anderson's rooms consulting her for advice and guidance about how to deal with the staff in the area where she was acting. Despite this, the plaintiff confirmed that although she could not remember when the student had died in the horse riding accident at a TAFE campus at Dubbo, there was only one such incident and she accepted that it occurred in March 2009, over four years before she was seeing Ms Anderson.

130. The plaintiff confirmed that she made the appointment with Ms Anderson and that she had consulted her previously in relation to similar issues being for assistance with dealing with staff members and in the plaintiff acting in the position. The plaintiff said that she “might” have been consulting Ms Anderson as a psychologist through the Employee Assistance Program (EAP): T321.38-.45. The plaintiff denied that she was consulting Ms Anderson in relation to her own personal psychological difficulties: T321.49. The plaintiff again emphasised that she was seeing Ms Anderson for “work guidance” for managing her distressed colleagues: T322.25. The plaintiff said she was seeing Ms Anderson for the purposes of “trying to get my job done and I needed help to do that, to sort some issues out”: T322.45. The plaintiff agreed that she gave permission to Ms Anderson to contact her general practitioner Dr Khin: T323.42.

131. The plaintiff also agreed that she consulted Ms Anderson at Caro Consulting throughout the period April to July 2013: T324.3. When it was put to the plaintiff that she did not see Ms Anderson for work purposes, the plaintiff said that she was only talking about work issues and her management of those issues: T324.16. She said that her recollection was that there were “tensions” with the employees still arising from the TAFE student’s death: T324.24. The plaintiff said she did not recall discussing with Ms Anderson during the periods of the consultancy from April to July 2013 any personal problems that she was experiencing: T324.29. When it was suggested again that Ms Anderson was consulted by the plaintiff in relation to her own psychological issues and not those of her work colleagues, the plaintiff said that she could only go to a consultation under the Employee Assistance Program through work: T324.46.

132. The plaintiff was then shown two pages of notes made by Ms Anderson in the period from 9 April 2013 to 18 July 2013 and she accepted that there was no reference in those notes to the consultancy being in relation to the management of the distress of colleagues arising from the student’s death: see Exhibit 1D6 pages 274-5 (volume 1). When it was suggested to the plaintiff that the notes disclosed that the consultations were in relation to the plaintiff's own concerns not those relating to the distress of work colleagues, the plaintiff replied that the consultations were “all about work”: T327.1. However, the plaintiff accepted that the notes were about work in the context of her own concerns: T327.4

133. The plaintiff accepted that the Caro Consulting notes did not include any notes in relation to an appointment for the period after 18 July 2013. Similarly, there were no notes for 22 August 2013. The plaintiff said that she was seeking advice from Caro on 22 August 2013 in relation to similar matters: T327.25. The plaintiff accepted that the notes only disclosed matters in relation to her own “distress” not those of the persons she supervised at work: T327.37. The plaintiff said that she did not remember being referred to Ms Anderson by her general practitioner Dr Khin for personal issues: T328.2. The plaintiff said that the consultations related to her personal issues “in relation to work”: T328.11. She accepted that the notes did not disclose that the consultations related to the effect on her work colleagues of the death of a TAFE student. However, the plaintiff denied that she was not consulting in relation to her work colleagues. The plaintiff stated in her evidence: “I was acting in the role of the director who'd been responsible for the area where the student was killed. So I'd just taken over these people, I'd had a couple of meetings with them, there was a lot of anxiety and angst for those people over what had happened”: T328.42. The plaintiff agreed that she authorised Ms Anderson to release the documents to her general practitioner Dr Khin: T329.37. The plaintiff said that she was “as happy as Larry [the day of the accident]” and “did not have any personal issues with my state of mind or any other thing because I was in such a good mood”: T330.50-331.2. She stated that she was going to talk to Ms Anderson because she was having difficulty with the “head teachers” and that related to work: T331.4.

584. In relation to the various expenses claimed, the plaintiff Ms Jay’s evidence confirmed the accuracy of the various payments made by the plaintiff in the 2016 proceedings. See also Exhibits 2D3, 2D5 and 2D7. In relation to the plaintiff's evidence at T310, Exhibit 2D7 establishes the relevance of the fees of Dr Brock. However there is no evidence to establish the relevance of the Shire Diagnostic Imaging expense and this should be excluded.

585. An issue arises whether more recent consultations (since early 2017) with Dr Thong should be allowed where the plaintiff has not been having scripts filled for pain medication. In my view, having regard to his reports, the pain consultations with Dr Thong consider matters other than pure analgesic relief and therefore the consultations should generally be allowed. As consultations may have been less frequent if the plaintiff had revealed not taking prescribed medication, a deduction of $300 should be made in circumstances where Exhibit 2D5 does not allow a more accurate assessment.

Future out-of-pocket expenses

587. The plaintiff seeks an allowance for various likely future out-of-pocket expenses which, it is submitted, the evidence establishes. The evidence relied upon is the analysis and appendix to the report of Dr Monica Ling dated 8 February 2016: Exhibit D pages 33-50. The defendants allow a much lower figure. The defendants have referred in their submissions to a figure which allows $5,000 for equipment and various allowances depending on the link between the accident and the psychiatric conditions.

588. The amounts sought have to be assessed in the light of the whole of the evidence including:

1. The improvements in some aspects of the plaintiff's condition in 2017 which have allowed her to engage in some social activities such as commencing a unit in the Bachelor of Arts in Social Work and engaging in charitable/spinning activities;

2. Her psychiatric deterioration in December 2017;

3. Her presentation whilst giving evidence in April 2018 in the light of the most recent reports of Dr Roberts and Dr Burke and Dr Duncan;

4. My medical findings which I have set out above;

5. The plaintiff’s evidence, confirming what she told Ms Toner on 27 July 2017 that most days she has her pain under control and can do whatever she needs to be comfortable: T363.12–.18;

6. The fact that the plaintiff does not appear to have obtained scripts for pain relieving medicine prescribed by Dr Thong since February 2017: Exhibit 1D6 behind Tab 9, being the PBS patient summary for Ms Jay;

7. The medical evidence which suggests that whilst the plaintiff has a continuation of chronic pain that her physical injuries have substantially settled although some variable pain continues.

589. Taking into account all of these matters, I consider the claims by the plaintiff for future out of pocket expenses to be in some cases excessive. Most need to be reviewed because of my findings. The quantification of the damages in relation to the various claims presents difficulties in the light of my findings in relation to the improvement in the plaintiff’s physical complaints and pain in more recent times. This leads me to the opinion that lump sum awards are the best way to deal with the various claims. In making such lump sum awards, I take into account the need to approach this head of damages on a Malec v JC Hutton basis: Avopiling at [165]-[166]. As stated by Payne JA at [166], some future medical expenses are “subject to fewer contingencies than other categories of future economic loss”. Doing the best I can on the limited evidence, I allow the following amounts:

1. Radiology - Dr Ling expresses the opinion that as the plaintiff is likely to have lifelong ongoing symptomatic degenerative joint disease at her lower back and left hip, it is likely that she will require x-rays and possible MRI or CT scans of these joints up to every 3 to 5 years to monitor her progress and to determine if any surgical intervention would be of benefit. Currently there is no suggestion in the medical evidence that surgery is advisable or likely in relation to these areas. I accept that some allowance should be made for the possibility of the need for future radiology of the plaintiff's condition. In my view the amount of $6,000 adequately allows for this possible expense;

2. Blood tests - Dr Ling states in her report that regular blood tests of Ms Jay’s haematology, renal and hepatic function should be performed twice yearly to monitor the side-effects of her analgesic medications. The evidence establishes that in recent times the plaintiff has not been filling prescriptions for pain medication, at least from her pain specialist Dr Thong. It is possible that the plaintiff will need to take further pain medication in the future. Having regard to these matters I would only allow $700 for future out-of-pocket expenses under this head;

3. Medication at $51.98 per week - The plaintiff will clearly require psychiatric medication and possible pain medication if and when it is required. However, the evidence suggests that the plaintiff is not currently taking prescribed pain relief medication. The prognosis for the plaintiff’s psychiatric condition is uncertain. Assessing all the evidence and the submissions made I would allow $15,000 under this head;

4. Surgery - Dr Ling states that if Ms Jay develops deterioration of her left hip symptoms, a hip arthroscopy and possible future total hip replacement may be required. Spinal surgery may also be indicated in certain circumstances. There is no current evidence this is required or is even likely in the future. Taking into account all the evidence I would allow only $8,000 for the possibility under this head;

5. Pain management specialist, subsequent consultations - The evidence shows that the plaintiff continues to consult Dr Thong. However, she appears to be more comfortable in managing her pain and there is a real prospect that pain management specialist consultations will become less frequent and possibly cease. Taking into account all the evidence and the plaintiff's apparent cessation of pain relief medication, as prescribed, since 2017, I would allow $2,500 under this head;

6. General practitioner - The plaintiff Ms Jay claims attending her general practitioner three to four times per annum to age 80. Some allowance for attending the general practitioner should clearly be required. However, the evidence establishes that psychiatric and psychological consultations should only be allowed for five years. In my view, more limited general practitioner consultations would be appropriate. I allow $5,000 as a lump sum under this head;

7. Physiotherapy - The plaintiff Ms Jay claims an allowance for physiotherapy every three to six months to age 80 at $75 per attendance. In my view an allowance for physiotherapy would be appropriate to assist the plaintiff in maintaining her core body strength and her general flexibility. I allow $2,000 under this head.

8. Occupational therapy every two years to age 80 at $120 - In my view this is an excessive amount to allow every two years but some allowance should be made for four sessions. I would allow a figure of $450 under this head;

9. Podiatry every six weeks to age 80 at $60 per session - The evidence shows that the plaintiff has difficulty with cutting her toenails. I would allow $4,500 under this head.

10. Psychiatric consultations at $330 with additional consultations twice per annum at $330 for five years - This appears to be justified on the medical evidence and I would allow the amount claimed by the plaintiff of $2,937.73 under this head without a discount;

11. Psychological consultations - In my view the medical evidence clearly establishes the need for the plaintiff to maintain contact with her psychologist as part of her mental recovery and mental health. I would allow the amount claimed by the plaintiff of $3,222.48 without a discount.

590. The total for future out-of-pocket expenses allowed is therefore $50,310.21.

Future equipment

591. The plaintiff Ms Jay makes a claim for future care items and equipment relying on, it appears, the report of Dr Ling dated 8 February 2016. The amount claimed is $2,825. The defendants in their damages schedules appear to allow the amount of $5,000 relying on the report of Ms Natarsha-Fick. This also seems to be somewhat outdated. I am not satisfied on the whole of the evidence that all of the future equipment sought by the plaintiff in the submissions of her counsel is justified and reasonable in all the circumstances. I also take into account the fact the plaintiff’s pain condition has improved and she has not recently been taking prescribed pain medication. I only allow $2,000 under this head which takes into account an appropriate discount on the amount claimed.

Past domestic assistance

592. I have set out above the amount sought by the plaintiff in relation to past domestic assistance. The amounts claimed by the plaintiff per hour appear reasonable having regard to s 141B of MACA. Further, in my view, the periods and hours claimed by Ms Jay for past domestic assistance are established by the evidence. I find that these amounts are properly claimed. The defendants’ amounts are not consistent with my findings.

593. The initial period from 23 August 2013 to 1 December 2013 of 15 weeks is established by the evidence of Ms Jay: T33.9. The amount of $4,173 is therefore allowed. The plaintiff claims $1,202.28 for the period of 43 weeks between 2 December 2013 and 2 October 2014 at $27.96 per hour for seven hours. This appears to be an error in calculation and the amount allowed should be $8,415.96 as the plaintiff's figure has not been multiplied by seven hours. In relation to the period from 3 October 2014 to 9 November 2014 being five weeks at $28.87 per hour for 11 hours the plaintiff claims $144.35. Again, this seems to have been calculated wrongly and the correct figure should be $1,587.85. As there is some doubt in the plaintiff's evidence at T33.35 as to the period, I would only allow $1,300 for that period. In relation to the period 10 November 2014 to 15 September 2016 being a period of 97 weeks at $28.87 per hour for seven hours the amount of $19,602.73 appears to be established by the evidence: see T34.1-.8. In relation to the period from 17 September 2016 to date, the plaintiff claims 86 weeks at $30 per hour for seven hours amounting to $18,060. This again would appear to be justified on the evidence: see T34-T35. This figure will have to be updated to the date of these reasons. Mr Jay generally gave supportive evidence in relation to the plaintiff's duties before and after the accident: T208-209. I accept his evidence. I found him to be an impressive witness.

594. Ms Natasha Taylor-Fick in her report and oral evidence lowered the number of hours per week which the plaintiff claimed for work done in the garden. The basis for this was that she did not believe that the plaintiff spent the time she claimed in the garden per weekend. In my view the evidence of Mr Jay is a more accurate and reliable guide to what the plaintiff did prior to the accident and I accept his evidence: see T208-210.

Future domestic assistance

595. The plaintiff claims an allowance of seven hours per week at $30.15 per hour for 23 years to age 80, amounting to $152,209.26. It would seem that the correct hourly rate is $30.55 rather than $30.15. The multiplier used by the plaintiff on a 5% table is 721.2. The plaintiff submits that this amount is appropriate even taking into account the principles in Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [130]-[153].

596. In my view, the evidence establishes that the plaintiff will continue to be unable to do heavier gardening and household work, including mowing, in the future. I prefer the plaintiff's medical evidence in the light of the plaintiff's evidence and the evidence of Mr Jay. However, in my view the plaintiff has had some improvement in her condition. I also think it probable that she would have obtained future care assistance in any case even without the accident prior to age 80. I take into account the analysis of Payne JA (with whom McColl and White JJA agreed) in Avopiling, above, at [130]-[136] and [153]. Looking at all the evidence including the evidence of the plaintiff and Mr Jay, I would allow six hours per week at $30.55 per hour for 18 years to age 75. The relevant multiplier is 625. Accordingly, I allow the amount of $114,562.50 (6 x $30.55 × 625). This takes into account the evidence of Mr Jay, the likelihood that future care would have been needed by 75, the possibility of further improvement in the plaintiff’s physical restrictions and pain as submitted by the defendant and the need for a discount in accordance with the principles of Malec v Hutton (1990) 169 CLR 638; [1990] HCA 20 and Avopiling.

Past economic loss

597. The findings which I have made in relation to the medical evidence lead me to the conclusion that I prefer the medical evidence of the plaintiff that all periods during which the plaintiff has not worked since the motor accident have been due to physical and/or psychiatric injuries arising from the accident. In this regard I prefer the evidence of Dr Bodel (Exhibit D page 7), Dr Ling (Exhibit D pages 44 and 54) and Dr Burke (Exhibit E page 24) to that of Dr Sekel. I also note that Dr Roberts appears to indicate that Ms Jay does not have any capacity to pursue employment in a sustained manner (Exhibit 1D6 Volume 1 page 21) although he puts that down to a pre-existing depressive illness. Dr Shatwell expresses the opinion that Ms Jay has been fully fit for her preinjury duties from February 2014 (Exhibit 1D6 page 34) although he notes that her prognosis for return to work is poor due to her psychological problems (Exhibit 1D6 page 35). Overall, I prefer the evidence of the plaintiff's witnesses which is, in my view, far more consistent with the plaintiff's clear limitations. I also note the defendants’ expert, Dr Harvey-Sutton, states that the plaintiff would be unfit to work for some two to three years from the date of her 18 April 2017 report (Exhibit 1D4 pages 317 and 320).

598. For these reasons I allow the plaintiff’s past economic loss for the periods claimed by counsel for the plaintiff in his written submissions. The plaintiff claimed $1,930 per week net for part of the first period and $1,822 thereafter. The higher figure for the initial period was not pressed in final oral submissions. The defendants allow $1,822 for net weekly earnings. In my view the figure of $1,822 should be allowed for the entire period referred to in the plaintiff’s schedule: see Exhibit A page 28 being the plaintiff’s tax return for the year ending 30 June 2013. The parties should consult to determine an agreed figure for past economic loss having regard to my findings.

Superannuation on past economic loss

599. I agree that the rate should be 11%. Its calculation will await a determination or agreement as to the past economic loss figure having regard to my findings in the previous paragraph.

Future economic loss

600. The plaintiff claims a loss of future earning capacity assessed at $1,200 net per week for 13 years minus 25% for vicissitudes being $452,070.00.

601. The award of damages for future loss of earning capacity is governed by s 126 of MACA. Section 126 of MACA provides as follows:

"126 Future economic loss—claimant’s prospects and adjustments

(cf s 70A MAA)

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

602. In New South Wales v Moss (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]–[71] and [84]:

“[70] First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of “general damages”. Like other types of “general damages”, as Fullagar J said in Paff v Speed at 559, they are “of 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, a wide discretion in assessing them”. In Russell v J Hargreaves & Sons Pty Ltd [1957] QSR 440 at 445, Taylor J said:

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

The field is an “uncertain” one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169, per Street CJ.

[71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed at 566, per Windeyer J. Evaluation of the worth of a loss of capacity to earn — of a lost chance to earn — is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis — that the plaintiff will have undiminished capacity — which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. H Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, at 91 [1.9.18], said: “it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act”.

In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639, Brennan J and Dawson J said: “the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history”. They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: “in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages …”. The majority (Deane J, Gaudron J and McHugh J) in Malec v J C Hutton Pty Ltd said (at 643) that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry — the process of estimation of possibilities — is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on “slender material[s]”: Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830; [1962] NSWR 871 at 877, per Evatt CJ, Herron J and Sugerman J. That language, unlike the reference to permitting “guess work or speculation” elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd (1963) 63 SR (NSW) 598 at 607; 80 WN (NSW) 999 at 1006, per Manning J. However, Menzies J said that sometimes the assessment of damages involves “guess work rather than estimation”: Jones v Schiffmann (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259, per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792, per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as “matters of prophecy or judicial guesses” in Paul v Rendell (1981) 55 ALJR 371 at 376; 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570:

“when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award.””

603. In assessing the appropriate figure for loss of future earning capacity, I must assess Ms Jay’s most likely future circumstances but for the injury.

604. In my opinion, the following matters are relevant:

1. Ms Jay was at the senior executive level. She was continuing in her job. Her four adult sons had left the family home for some time at the time of the accident;

2. Ms Jay was clearly a career focused person who indicated that she “loved” her job and apparently assessed part of her self-esteem on her success and capacity to undertake her work. Money does not appear to have been her sole motivating factor;

3. However, her work was stressful and required extensive vehicle travel throughout New South Wales;

4. Her husband also was in employment with a high paying job: Exhibit F page 70;

5. The plaintiff had clearly had problems coping with work prior to the accident and found her work to be stressful. As stated above, she had taken some time off work, was on Pristiq, and was consulting a psychologist. She had shown on and off some anxiety and depressive symptoms. Her work required extensive travel in country New South Wales.

605. Counsel for the plaintiff submits that even with these factors the plaintiff Ms Jay would have remained working until she reached 67 years of age. The defendant submits that if the court considers a closed period of loss of future earning capacity is appropriate, then it should find that Ms Jay would have left her work no later than mid 2017 because of her prior serious health conditions and the matters set out in the previous paragraph.

606. Taking into account all of these matters, whilst I think it more likely that but for the accident the plaintiff would have remained in her job for at least several years, I think it likely that she would have retired at about 60 years of age. This would have allowed her to continue to develop the garden on her property which she clearly liked doing. It would also have allowed her to focus on her fitness, social and spinning activities. It would have avoided the ongoing travel requirements in country New South Wales and allowed her to spend more time at home. This conclusion takes into account her prior health history, the fact that the job the plaintiff had was demanding, required extensive travel and she found it at times highly stressful: see also Mason v Demasi [2009] NSWCA 227 at [5]. It takes into account the plaintiff’s husband’s highly paid job which allowed ongoing income into the family. It also takes into account that the plaintiff liked her job despite its drawbacks. Accordingly, I find that the most likely scenario but for the accident is that Ms Jay would have continued working, taking some time off on paid leave when required, until she turned about 60. I allow $1,200 net per week for three years (multiplier 145.6 x $1,200) which equals $174,270. The issue arises whether I should take off the usual 15% for vicissitudes or some lesser or greater figure in the light of her pre-accident health issues. This is a “broad evaluative decision”: at [101] in Avopiling, above per Payne JA. In my view I should not take off the usual 15% for vicissitudes (or some greater or lesser figure) as the usual risks of a different working future history are built into my finding. I note the defendant does not reduce the amount for vicissitudes for this head of damages in his schedule.

607. If I am wrong in this conclusion and it is held that it is not available, I consider that it is highly unlikely that the plaintiff would have worked past 65. In that scenario the amount allowed is as follows: multiplier 345.6 equals $414,720. Having regard to the matters which I have outlined above, in that scenario I think that a discount for 25% for vicissitudes as the plaintiff allows on her schedule of damages is appropriate. This would in my view be consistent with general principle and the analysis in [101] in Avopiling. The amount in the alternative scenario, if I am wrong in my primary analysis, is $311,040.

Superannuation on future economic loss

608. Allowing 12% of the net value of the amount I have found for future economic loss, this arrives at a calculation of $20,912.40 which should be allowed for loss of future superannuation.

Fox v Wood

609. The amount for this head of damages will have to be calculated by the parties following the receipt of an updated schedule of workers compensation payments after these reasons are handed down.

Reduction for contributory negligence

610. The final figure for damages should be reduced by 15% for the contributory negligence found.

Conclusions

611. The parties should check my calculations. The parties should bring in agreed Short Minutes of Order to reflect these reasons within 14 days. If there is continued dispute between the parties as to any damages aspect, the matter should be listed for further directions.

Disposition

612. Accordingly, the orders I make are:

1. Judgment for Ms Jay against the defendant in the 2015 proceedings.

2. The defendant in the 2015 proceedings is to pay the plaintiff's costs of those proceedings as agreed or assessed.

3. Judgment for the plaintiff in the 2016 proceedings against the defendants.

4. The defendants in the 2016 proceedings are to pay the plaintiff's costs in those proceedings as agreed or assessed.

5. Liberty to the parties to apply to vary the costs orders in paragraphs 2 and 4 above within 14 days.

6. The parties in both proceedings are to bring in agreed Short Minutes of Order within 14 days reflecting the reasons for decision. In the event that agreement cannot be reached, the parties should approach the Associate to Dicker DCJ to have the matter listed for further directions.

7. The exhibits are to be retained until further order.

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Decision last updated: 26 September 2018