Jereme Smith v Ryan Harris and the Nominal Defendant

[2014] NSWDC 254

District Court

New South Wales

Medium Neutral Citation:	Jereme Smith v Ryan Harris & The Nominal Defendant [2014] NSWDC 254
Hearing dates:	6 February 2014
Decision date:	06 February 2014
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the Plaintiff against both Defendants. For Orders see [77]
Catchwords:	Motor vehicle accident; unidentified motor vehicle
Legislation Cited:	Civil Liability Act 2002 Evidence Act 1995 Law Reform (Miscellaneous Provisions) Act 1946 Motor Accidents Compensation Act 1999 Workers Compensation Act 1987
Cases Cited:	Browne v Dunn (1893) 6 R 67 Jones v Dunkel (1959 101 CLR 298 McLennan v Nominal Defendant [2014] NSWCA 332 Manley v Alexander (2005) 80 ALJR 413 Marien v Gardiner [2013] NSWCA 396 Medlin v State Government Insurance Company (1995) 182 CLR 1 Nominal Defendant v Bacon [2014] NSWCA 275 Nominal Defendant v Ismael [2014] NSWCA 432 Nominal Defendant v Ross [2014] NSWCA 370 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Wade v Allsop (1976) 10 ALR 353 Warth v Lafsky [2014] NSWCA 94
Category:	Principal judgment
Parties:	Jereme Smith (Plaintiff) Ryan Harris (1st Defendant) Nominal Defendant (2nd Defendant)
Representation:	Counsel: P G Young (Plaintiff) D Ronzani (1st Defendant) W Fitzsimmons (2nd Defendant) Solicitors:
File Number(s):	13/321280

Judgment

The Plaintiff’s Claim

1. The plaintiff claims damages for personal injuries suffered by him on 29 February 2012 when he was a passenger in a motor vehicle being driven by the first defendant in a southerly direction along Eastern Valley Way Chatswood when a collision occurred with another vehicle driven by Ms Sharon Callister. The circumstances leading up to that collision are described below, and give rise to a claim by the plaintiff against the Nominal Defendant as second defendant pursuant to s 34(1) of the Motor Accidents Compensation Act 1999 in lieu of the driver of the unidentified vehicle described below.

2. The plaintiff, who was born on 22 January 1983 and was 29 years of age at the time of the accident, suffered a serious injury to his left lower limb and claims to have suffered considerable impairment to his ability to carry out his life activities as a result of that injury.

3. Both defendants deny liability, and there are Cross-Claims between both defendants claiming indemnity or in the alternative, contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946.

Issues to be Determined

4. The parties agree that the issues to be determined are as follows:

1. Whether the accident was caused by the negligence of the first defendant.

2. Whether the accident was caused by the negligent driving of an unidentified vehicle allegedly travelling south on Eastern Valley Way, Chatswood.

3. Damages, including:

1. Whether the plaintiff has suffered any past economic loss following his return to work on 15 May 2012.

2. Whether the plaintiff has suffered any future loss of earning capacity.

3. Whether the plaintiff requires domestic assistance in the future, and if so, whether such assistance will be engaged on a commercial basis, and

4. The quantification of any future treatment expenses.

The Evidence concerning Liability

5. The plaintiff was employed by Life Fitness Australia at Chatswood and worked on Eastern Valley Way, near the intersection of Smith Street. At approximately 12.30pm on 29 February 2012 he left his work and was a front seat passenger in a vehicle driven by the first defendant. The vehicle headed south on Eastern Valley Way in the second lane and travelled a relatively short distance when the plaintiff, who was making a phone call on his mobile phone, observed a black motor vehicle move from the kerbside lane into the lane in which the first defendant’s was travelling, causing the first defendant to take evasive action, during which he lost control and travelled onto the incorrect side of the Eastern Valley Way, that is, onto the carriageways for vehicles travelling in a northerly direction. The vehicle came to a rest, sideways across the road, blocking the whole of the first or kerb-side lane and part of the second of two lanes for northbound traffic. A collision then took place with the vehicle being driven by Ms Callister, which impacted with the front passenger door of the first defendant’s vehicle, adjacent to where the plaintiff was seated. He was trapped in the car and sustained a serious injury to his left leg. He gave the following evidence as to what occurred:

“Q: What happened next?

A: As we were leaving, we went down the driveway, obviously our seat belts were on, we were driving, turned right on to Eastern Valley Way, it was raining, it was a terrible day, it was just a terrible day, it was muggy, it was terrible.  We were driving down the road, and next minute we've come around the bend and this black car's come and cut in front of us, and Ryan's broke to avoid an accident, and then the next minute he's lost control and we've ended up on the side of the road, and all I can remember is turning my head to the left and seeing a four wheel drive coming at me and hitting me.

Q: As best you can, tell His Honour what happened next?

A: Basically what happened, as we turned right onto Eastern Valley Way, and we were driving ‑ like I said before, it was a rainy day, and we've come around the corner, and the next minute this car's come out of nowhere and come into our lane and Ryan's broke to avoid the accident, and because it was a terrible day, he's just lost control, and we've ended up on the other side of the road, and then the next minute all I can remember is just looking up and seeing a four wheel drive coming straight at me.

Q: So when you turn right in to Eastern Valley Way, did you notice what the traffic conditions were like?

A: It was terrible.  It was wet, it was raining, it was muggy, it was dark, it was‑‑

Q: Did you notice how many cars were going in a southerly direction at the time that you're making the turn?

A: The way we were going; there was none.

Q: No cars?

A: There was none going in front of us.

Q: Did you notice what the traffic conditions were like heading in a northerly direction as you were making the turn on to Eastern Valley Way?

A: There was none.  There was no cars.

Q: As best as you can recall, once Mr Harris, the first defendant, made the right hand turn on to Eastern Valley Way heading south, how many lanes are there heading in a southerly direction; one or two?

A: There's two.

Q: As best as you can recall, in which lane did Mr Harris turn the vehicle into?  Perhaps if we can do it this way; one lane being the kerb side lane, and the other lane being closer to the centre line.  In which lane do you recall Mr Ryan driving into?

A: The centre lane.

Q: What happened next, just one step at a time.

A: We turned right into the centre lane and we kept driving, and the next minute this black car come.

Q: You've mentioned a black car.  First of all, how long had you travelled along Eastern Valley Way?  In terms of metres or time, whatever is comfortable, before you noticed that black vehicle.

A: Probably three minutes, three or four minutes.

Q: You're on your mobile phone at this time?

A: Yes, correct.

Q: When you say you noticed the black vehicle, which direction was the black vehicle heading?

A: It was heading in the same direction as us.

Q: In a southerly direction?

A: Yes, correct

Q: In what lane was the black vehicle in when you first noticed it?  Was it in the kerbside lane or in your lane?

A: Kerbside lane.

Q: Did you notice any other features about this black car other than its colour?

A: No.

Q: Was it a van, was it a sedan, was it some other vehicle?

A.  Sedan, I think.  I'm pretty sure.  Everything happened so quickly.

Q: Did you notice his registration number?

A: No.

Q: What happened next; you noticed it on the kerbside lane, what happened next?

A: I noticed it cut us off.  So it came in front of us, veered into our lane.

Q: Veered into your lane.  Did it indicate?

A: No.  It just straight into our lane.

Q: As best as you can recall, as you can see from the map that you marked, Eastern Valley Way is not a straight piece of road.  If you can recall, do you recall whether the road was straight or was it a bend when you first noticed the black car?

A: I think we were just coming out of the bend.  We were just coming around the corner.”

6. The plaintiff was cross-examined by Counsel for the first defendant, but not about the circumstances of the accident. Learned Counsel for the second defendant did cross-examine the plaintiff at length about those circumstances. First, it was put to him that the first defendant was driving a sports performance car (a Nissan Skyline), to which the plaintiff gave evidence that it was just another name to him. The plaintiff agreed that the incident occurred “maybe 200 metres from where the driveway entrance of his work was” and in that 200 metres the first defendant had accelerated to 60 kph. He identified the location where the first defendant’s vehicle lost control on photographs which became exhibit 2D1, photographs 1, 2 and 3. When he first saw it, the black car was coming into the second lane. He agreed that the first defendant braked and moved to the right to avoid an accident. The plaintiff agreed that the vehicle in which he was travelling as a passenger then travelled a relatively short distance to where it cut across the northbound carriageways to end up facing the gutter, across those carriageways.

7. The plaintiff disagreed that the vehicle started to fishtail up the road for a distance of at least 50 metres. He gave this evidence:

“Q: I want to suggest to you that effectively what happened was Mr Harris lost control of the car as it started to fishtail up the road.  That's what happened, isn't it?

A: No.  He lost control when the car cut in front of him and he broke.

Q: Yes and you say from the moment he lost control what he did was brake and the car turned immediately to the right across the road?

A: Yes.

Q: I want to suggest to you that is not correct, that is not what happened, did it?

A: No, it did happen.

Q: Mr Harris, I want to suggest to you, travelled to the point of the bend and by that stage was at about 60 kilometres per hour wasn't he?

A: Roughly yes.

Q: I think you agreed with me yesterday that the distance from where he came out of the driveway to the start of that bend would be no more than 100 metres at the most, do you agree?

A: Yes about 100, a bit more.

Q: What I want to suggest is by the time it got to that bend he had already reached the speed limit of 60 kilometres per hour, hadn't he?

A: I presume so, yes.

Q: What I want to suggest is that having reached that speed at the bend, in taking the bend he lost control of his car?

Q: What I want to suggest to you is that having come to that bend, and when starting to negotiate the bend, the car started to fishtail didn't it?

A: Yes.

Q: It fishtailed for some distance up the road before it eventually careered right to where it had the impact.  That is the case, isn't it?

A: No, we left the driveway and we drove at 60 ks and then that black car come and cut us off and then he swerved to avoid an accident and we ended up on the other side of the road.

8. In further cross-examination the plaintiff said that he saw the four-wheel drive vehicle that collided with the passenger front door of the vehicle in which he was travelling. He could not see it brake and disagreed that the impact occurred within split seconds of the vehicle in which he was travelling came to a stop.

9. 9 The first defendant did not give evidence and the legal representatives of the first defendant relied on an affidavit of Ms Potts in relation to his absence from the witness box. The plaintiff was then further cross‑examined by Counsel for the second defendant about the circumstances in which he came to make a statement to the police some six months after the accident.

10. The driver of the four-wheel drive vehicle that collided with the vehicle in which the plaintiff was travelling, was Sharon Callister. She was called by the second defendant. She was employed as the CEO of the Salvation Army Care Aged Care Plus in February 2012 and was driving between Rockdale and Dee Why and had stopped at the traffic lights at the intersection of Eastern Valley Way and Victoria Road, Chatswood. When those lights turned green she proceeded through that intersection and came to a left hand bend in the road. She was in one of two lanes heading north, but could not remember which lane she was travelling in. As she left the bend she had a view down Eastern Valley Way until that road bent to the right. She was asked whether she saw something down the road and gave this evidence:

“A: As I was travelling down the straighter part of the road I did see the vehicle that ended up colliding with me. I saw it coming around the bend and it was fishtailing, it appeared that it was out of control and I watched it, I slowed down and I remember thinking to myself I’m glad I’m not on that side of the road because the car was out of control.

Q: Did you continue to observe this vehicle?

A: I did and I kept thinking to myself, the words just kept coming to me, the car is fishtailing and I saw it veer in and out of the lanes a bit. It all happened really quickly and yeah, I just remember thinking that I am glad I’m not on that side of the road, but as it turned out, it came onto my side of the road anyway and collided with me.”

11. She was asked what the traffic was like on the roadway after she had negotiated the left-hand bend. She said:

“A: There weren’t any other cars on the road. I had a clear view between my car and the car that hit me.”

12. She said there were no cars travelling on the roadway ahead of her in a northerly direction. She gave this evidence:

“Q: In terms of coming the other way, if we can assume that’s effectively travelling south between where you were when he came around that bend, do you understand, and seeing the car coming around the right-hand bend, that’s to you from the bottom, were there any cars between where you were and that vehicle on the southern side of the road?

A: No.”

13. When cross-examined by Counsel for the first defendant, Ms Callister had no recollection of any vehicles being behind her whilst she was waiting for the lights to change at the intersection of Victoria Avenue and Eastern Valley Way. Nor did she recall looking in her rear-vision mirror.

14. She agreed that she could not see beyond the bend in the road to her right and that she did not know what occurred to the vehicle that she saw out of control before she saw it at the bend. She also agreed that her attention was on the vehicle that was fishtailing on the road. She agreed that it was a wet road and that it all happened fairly quickly, a matter of seconds. She did not recall where the other vehicle ended up at the moment the vehicles crashed. Although she got out of the car, she gave this evidence:

“A: No, I don’t recall because when I got out of the car I was – I was pretty much collapsed and there people coming. I’m pretty sure I had my eyes closed. I was very shocked and I couldn’t stand and then the ambulance came and took me away.”

15. She gave this evidence:

“Q: The last memory you have of the oncoming vehicle’s position on the road was, was it, as you’ve said in paragraph 7 of the police statement, that is, it’s moving through both southbound lanes and slightly northbound?

A: No, I remember seeing it coming around the bend, when I saw straight away it was fishtailing I knew it was out of control, I was slowing down, it came towards me and when I was thinking I’m glad I’m not on that side of the road, so I do recall seeing it coming a fair way up. I’m really hard to judge in terms of distances but I definitely saw it coming towards us.”

16. Ms Callister did not remember the impact between her vehicle and that in which the plaintiff was travelling as a passenger. In paragraph 7 of her police statement she had said, “On seeing this I applied my brakes and began to slow my vehicle as I felt he was out of control”.

17. Ms Callister had no recollection of the policeman asking whether she ever saw a black car coming in the opposite direction. There was no reference to a black car in her statement. In that statement she said there were no other cars on the road. She gave this evidence:

“Q: No black car, there’s a difference you see. I’m asking you specifically about a specific type of car, a black car. That was never put to you by the police, was it?

A: No, it wasn’t but I can tell you right here, right now, in my memory, I can see one car fishtailing along the road. There was no other car there.

Q: But there could have been, you didn’t see it travelling in front of the fishtailing car?

A: No I had a clear view of the car.

Q: Of the car, but what about other cars that were travelling in the opposite direction before you focussed attention on the fishtailing car?

A: When I had my focussed attention on the fishtailing car there were no other cars between my car and it.”

18. In cross-examination by Counsel for the plaintiff, Ms Callister agreed that when she first saw the fishtailing car, what brought it to her attention was the fact that it was fishtailing. She agreed that she would not have seen what caused the fishtailing car to lose control before the bend. She agreed it was a possibility that there was a third vehicle further around the bend travelling south which could have been part of the reason why the fishtailing car was out of control, and that it would have passed her vision before she noticed the fishtailing car. She did not know what caused the fishtailing car to lose control at first, however, she said there was not a chance that any other car would have past around the bend. When asked why not, she said:

“A: Because I had a very clear distance between myself and the car that was fishtailing and there were no other cars.”

19. Ms Callister said that the incident happened in a matter of seconds. There was no re-examination.

20. Photographs taken by the police of the two vehicles (exhibit C) that collided in their resting positions showed that the vehicle in which the plaintiff was travelling as a passenger was situated diagonally across lane 1 for vehicles travelling north at a point where the Eastern Valley Way commenced to bend to the right for northbound traffic. The journey claim (exhibit D) completed by the plaintiff on 21 March 2012 gave the following description of the incident:

“Left work, turning right onto Eastern Valley Way. It was raining and slippery, approached a corner and a black sedan cut us off by entering our lane. We broke and the vehicle slid due to road conditions into oncoming lane and was impacted/hit on the passenger side, by another vehicle.”

21. A diagram depicting the scene showed the point of impact at the end of the right-hand bend in the roadway for vehicles travelling north. This was clearly incorrect.

22. In a statement made to the police on 13 May 2012 (exhibit G) the first defendant described what happened in the following terms:

“I was driving in the right-hand lane along Eastern Valley Way away from Chatswood towards Castlecrag. A little black car changed lanes straight in front of me. I slammed on the brakes and slid into oncoming traffic. I was basically stopped when the car slammed into me.”

23. The plaintiff also made a statement to the police on 28 August 2012, an unsigned copy of which became exhibit H in the proceedings. He described the incident in terms consistent with his evidence and journey claim.

24. Sharon Callister’s statement to the police dated 29 March 2012 became exhibit 2D9. She described the incident in the following terms:

“Around 12.30pm I was stopped at the intersection of Victoria Ave and Eastern Valley Way Chatswood and was the first vehicle stopped at the traffic control lights. I continued to drive north along Eastern Valley Way at around 50km/hr down through the bends when I noticed an oncoming vehicle a couple of hundred metres ahead before the Caltex Service station, Smith Street Chatswood.

The oncoming vehicle was a Nissan Skyline and was travelling in the south bound lanes generally in the lane closest to the centre of the road towards me. He was the only vehicle in the oncoming lanes at the time.

I watched as the oncoming vehicle approached me and appeared to be ‘fish-tailing’ over the road and out of control. The whole car was moving throughout the lanes both south bound and slightly northbound. On seeing this I applied my brakes and began to slow my vehicle as I felt he was out of control.

The next thing I could remember was being off the road, facing down an embankment with my vehicle airbags deployed and thinking that my car was on fire. I tried to open the door but was unable to open the front doors and moved into the back of the vehicle. I managed to get the rear driver side door open and was helped out of the vehicle by another person.”

25. A further statement given by Ms Callister to an investigator from NRMA Insurance Limited became exhibit 2D10. It included the following description:

“I was doing about 50kmph as I had stopped at the lights at Victoria Ave & Eastern Valley Way and then proceeded slowly after that when I had a green light and then along the curvy bends.

I noticed an oncoming vehicle about a one or two hundred metres ahead of me. I am aware from my knowledge of the area that further north along the road there is a gym and then a Caltex service station on my left. I could not see these entities when I sighted the car fishtailing.

It was fishtailing across the road.

That vehicle was travelling in southbound lanes generally in the lane closest to the centre of the road and that was the only vehicle in the oncoming lane at the time.

I watched as it fishtailed over the road and out of control.

The whole car was moving throughout the lanes of southbound and northbound and I applied my brakes when I observed the car to be out of control. I cannot describe the car.

I was slowing down and I could see the car heading in my direction and did not think I was going to be impacted I was slowing down to watch the car.

Then I do not remember what happened as the next thing I knew I was off the road in my car facing down an embankment with my airbags deployed and I thought my car was on fire.”

Submissions of the Second Defendant as to Liability

26. The second defendant did not contest that the plaintiff had satisfied the statutory requirement to make due enquiry and search as a condition of its cause of action against the Nominal Defendant. The second defendant relied on the evidence of Sharon Callister to submit that the Court would not be satisfied that there was a black vehicle which caused the first defendant to take evasive action and thereby lose control of his vehicle. Further, the evidence of Ms Callister was inconsistent with the evidence given by the plaintiff as to the manoeuvre undertaken by the first defendant, which was further inconsistent with the plaintiff’s denial that the vehicle had “fishtailed” on the south bound carriageways before crossing onto the incorrect side of the road.

27. The second defendant submitted that the plaintiff’s credit should also be taken into account in assessing liability. The attack on his credit concerned a number of matters as follows:

1. The circumstances of the termination of his employment in October 2012.

2. The plaintiff’s post-accident treatment and evidence in respect of his use of pain killing medication.

3. Surveillance evidence as to whether he walked with a limp.

4. His evidence in respect of his claim for domestic assistance which, it was submitted, did not “reflect well” on his credit.

5. The plaintiff’s dealings with the investigating police, in that it was submitted that he avoided contact with the police, and

6. His evidence that he was incapable of sending an email.

28. The second defendant submitted that the Court would not be satisfied that, on the balance of probabilities, that the collision was caused by the negligent driving of an unidentified vehicle on four bases, namely:

1. “The inherent unlikelihood of a vehicle moving from the kerbside to the middle lane directly across the path of the first defendant’s vehicle in circumstances where there were no vehicles or other obstacles directly in the path of the unidentified vehicle as it travelled in the kerbside lane.

2. The evidence of Ms Callister as to the movement of the vehicle would be preferred over the evidence of the plaintiff.

3. The movement of the first defendant’s vehicle is consistent with an out of control vehicle travelling on a wet road, having just negotiated a left bend; and

4. Ms Callister has consistently maintained that there was no other south bound vehicle between the plaintiff’s vehicle and her own at the time she first observed the plaintiff’s vehicle.”

29. In oral submissions, Counsel for the second defendant submitted that if the Court was not satisfied as to the presence of the unidentified vehicle, then the only inference to be drawn was one of negligence in the manner in which the vehicle was driven by the first defendant. It was submitted that on the plaintiff’s primary case against the second defendant, the first defendant was effectively in the plaintiff’s camp and therefore the absence of the first defendant from the witness box would not assist the plaintiff’s case. Further, the evidence relied upon by the first defendant, namely, the affidavit evidence concerning the attempts to serve Mr Harris with a subpoena, did not assist either the plaintiff or the first defendant and gave rise to an inference adverse to the interests of those parties pursuant to the principle in Jones v Dunkel (1959) 101 CLR 298. Further, it was submitted that the plaintiff’s case had not been put to Ms Callister, in breach of the rule in Browne v Dunn (1893) 6 R 67.

First Defendant’s Submissions on Liability

30. The first defendant submitted that in taking evasive action to avoid the black car which cut across the path of his vehicle, he acted entirely reasonably. In those circumstances the second defendant should be found liable in negligence by reason of the stated manner of driving of its unknown driver. It was submitted that the plaintiff’s evidence as to the circumstances of the accident should be accepted, and on the basis of that, there was no negligence on the part of the first defendant.

31. It was submitted that the absence of the first defendant from the hearing means that the evidence that the first defendant may have given may not have assisted his own case in the event that he had attended.

32. Counsel for the first defendant submitted that Ms Callister’s evidence did not establish that there was no black car. Indeed, in her statement to the NRMA dated 25 October 2012 (exhibit 2D10), she stated “The police never asked me about any other vehicle”. Her attention was focussed on the oncoming vehicle, namely, the Nissan Skyline driven by the first defendant and she described it to be fishtailing out of control.

33. It was submitted that there was no reason for the Court to prefer the evidence of Ms Callister to that of the plaintiff because the Court was not entitled to choose between guesses or where the possibilities are not unlimited, on the ground that “one guess seems more likely than another or the others” as per Emmett JA in McLennan v Nominal Defendant [2014] NSWCA 332 at [86]. His Honour went on to say:

“The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied (Guess v Nominal Defendant [2006] NSWCA 77 at [108], citing Jones v Dunkel (1959) 101 CLR 298 at [304-5]).”

34. It was further submitted that there is no inherent likelihood of a vehicle moving from a kerbside lane to the middle lane as submitted by the second defendant.

35. Learned Counsel submitted that it was not a case of preferring evidence, but a case of weighing all the evidence in the hearing. On that basis, it was submitted that if the Court was not satisfied that there was a black car, then the plaintiff would fail against both defendants.

Plaintiff’s Submissions on Liability

36. Counsel for the plaintiff submitted that the first defendant breached his duty of care by driving at a speed which was excessive in the circumstances, causing him to lose control in wet conditions on a bend in the road.

37. In respect to the second defendant, the plaintiff submitted that from the outset he had consistently alleged that an unidentified black vehicle cut in front of the first defendant’s vehicle, in his journey claim (exhibit D), his personal injury claim form (exhibit 1D1), his unsigned police statement dated 28 August 2012 (exhibit H) and in a number of histories given to various doctors and occupational therapists. In addition, the New South Wales Ambulance report referred to the incident as a “three car MVA”.

38. Learned Counsel submitted that the plaintiff was candid and consistent in his evidence concerning the unidentified black vehicle. Further, the Court could not be satisfied on the basis of Ms Callister’s evidence that it excluded entirely the possibility of the presence of such a vehicle. In noticing that the oncoming vehicle was fishtailing, her evidence substantiated that she was thereafter fixated on the first defendant’s vehicle because of the potential danger it posed. At the time when Ms Callister first noticed that vehicle, it was already fishtailing and out of control, and as such, the unidentified black vehicle would have passed her without incident.

39. 39 It was submitted that there was no benefit for the plaintiff to fabricate the presence of an unidentified black vehicle as he was injured in the periodic journey from work, which was compensable under s 10 of the Workers Compensation Act 1987, and in any event, there was clear negligence on the part of the first defendant. It was not put by Counsel for the second defendant that the plaintiff had made his police statement as the result of some sort of collusion with the first defendant. Nor was he cross‑examined on that basis in respect of his journey claim or personal injury claim form. It was submitted that the plaintiff was a witness of truth and his evidence should be accepted.

Determination on Liability – Legal Principles

40. The plaintiff bears the onus of proof of establishing that either the first defendant, or the second defendant, or both, were negligent. Negligence is to be determined pursuant to the provisions of the Civil Liability Act 2002 – see s 3(B)(2) which provides that divisions 1-4 and 8 of Part 1A of the Act apply to motor vehicle accidents.

41. In Manley v Alexander (2005) 80 ALJR 413, the plurality in the High Court said, in relation to a driver’s obligation to others using the roadway (in that case the respondent was intoxicated and lying on the roadway):

“11 …

Driving requires reasonable attention to all that is happening on and near the roadway but may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle’s path.

12 It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”

42. More recently, in Marien v Gardiner [2013] NSWCA 396, another pedestrian case, Meagher JA (with whom Macfarlan and Emmett JJA agreed), said:

“33 The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.

34 The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant’s circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).

35 Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], ‘reasonable attention to all that is happening on and near the roadway that may present a source of danger’. That in turn requires ‘simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle’s path’.

36 The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.

37 Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the ‘limits of visibility and control’ so as to be able to react to whatever ventures into the vehicle’s path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.”

See also Warth v Lafsky [2014] NSWCA 94 at [55] and Nominal Defendant v Ross [2014] NSWCA 370 at [26] where these principles were restated.

The Plaintiff’s Credit

43. The plaintiff left school in year 10 to work. In 2001 he commenced a TAFE course in roof tiling but was unable to complete his apprenticeship because he could not do the work at tech. He thereafter worked in unskilled jobs except for a period of time spent in custody following a charge of assault causing grievous bodily harm by the use of an air rifle.

44. Upon release from custody the plaintiff obtained employment and remained in employment in various unskilled jobs, obtaining his ticket as a forklift driver. He commenced employment with Life Fitness Australia on 25 October 2010 and on 2 November 2011 was promoted to be a senior installer. He was clearly good with his hands and the work involved installing equipment in gymnasiums and supervising others to do that work. One of those people was the first defendant, Ryan Harris.

45. I found the plaintiff to be essentially a truthful witness, although he was at times prone to exaggeration, for example, his evidence, notwithstanding his complete lack of educational qualifications, that he would like to be a social worker. Despite a criminal record, and the difficulty that can create in obtaining employment, he had an excellent work history. Even following what was a serious injury to his leg, he obtained unskilled labouring work of a heavy nature to earn income to provide for his family, notwithstanding the difficulties he had carrying out that work. The attempts by the second defendant to impugn his credit was not successful for the following reasons:

1. The circumstances of the termination of the plaintiff’s employment in October 2012 were not fully ventilated, and he had given an explanation for his involvement. There was no evidence from his employer other than the records exhibit 2D7. If he was asleep in the relevant truck at the time the vehicle was exceeding the speed limit, that would hardly go to his credit in respect of the issues in the trial. His evidence in chief that the vehicle was travelling 3 kms over the speed limit was clearly based on the impression he had been given, rather than a deliberate attempt to mislead the Court.

2. Similarly, the plaintiff’s evidence about his consumption of prescription painkilling medication lacked precision, but was, in my view, consistent with his general demeanour and low level of formal education. Essentially, it was entirely reasonable that he should use the prescription strength analgesics on an as required basis, from whatever stocks he held at home.

3. The surveillance evidence did not establish that the plaintiff did not walk with a limp. The evidence itself was very brief, often showing the plaintiff obscured by motor vehicles or other objects, for example, at the petrol station, and at times showed the plaintiff favouring his left leg. At other times whilst he appeared to be walking freely, that evidence of itself was not sufficient in my view to colour the whole of his evidence.

4. The plaintiff’s evidence in respect of his claim for domestic assistance is evidence that has to be assessed with all other evidence relating to that head of damages. Unfortunately, it is not unusual for plaintiffs to overstate such claims, and the second defendant’s submission that this did not “reflect well” on his credit does not amount to his credit being impugned on all issues. In any event, the parties reached an agreement as to damages for past domestic assistance.

5. I find that the plaintiff, on all of the evidence in respect of his dealings with the police, did not avoid contact with the police. Rather, he visited Chatswood Police Station with the first defendant, Mr Harris. At a time when he was incapable of travelling to the police station, local police delivered documents to him. Whilst he did not make a statement until August 2012, the evidence was insufficient to establish the second defendant’s contention, on the balance of probabilities, that he was avoiding contact with the police so as to in some way protect his interests in this case. It is relevant that learned Counsel for the second defendant did not put to the plaintiff at any time that he was colluding with the first defendant in respect of the presence of the unidentified black motor vehicle on the roadway.

6. Finally, the plaintiff’s evidence that he was incapable of sending an email, may have been hyperbole, but on the balance of probabilities, I accept it as truthful evidence of that fact. The fact is, there are people in the community who are not computer literate, and there was nothing for the plaintiff to gain by giving that evidence. Further, his explanation that his partner attended to computer communications was entirely reasonable. She was an impressive witness, and he had, as outlined above, limited education.

46. For all of the above reasons, I am not persuaded that the attack on the plaintiff’s credit is made out.

47. Nor do I accept the second defendant’s submissions that the collision was not, on the balance of probabilities, caused by the negligent driving of the unidentified black vehicle. The four bases of that submission set out in [28] are just not made out on the evidence. There is no basis upon which to find an inherent unlikelihood of a vehicle moving from one lane to another across the path of another vehicle. That is a common enough occurrence. The last three bases concern the evidence of Ms Callister and the contention that the movement of the first defendant’s vehicle as observed by her was consistent with a vehicle becoming out of control, having just negotiated a left bend. That is also not made out on the evidence. The real issue is whether the evidence of Ms Callister and the evidence of the plaintiff, together with the other evidence supporting the plaintiff’s claim as set out above, are so diametrically opposed that the plaintiff’s evidence just cannot be accepted. The submissions made on behalf of the first defendant and the plaintiff (which it must be acknowledged are somewhat aligned in order to extend liability to the second defendant) essentially rely on a difference in the perspective of the two critical witnesses, namely, the plaintiff and Ms Callister, in terms of their perception of the critical events leading up to the collision. This is not unusual in motor vehicle accident cases – see for example Nominal Defendant v Ismael [2014] NSWCA 432 where the Court of Appeal held that the trial judge had erred in admitting evidence of a consulting engineer about driver perceptions. The Court held that that evidence involved expertise in psychology which the expert did not hold, and therefore the evidence was inadmissible under s 79 of the Evidence Act 1995. Basten JA stated in that context:

“23 Thirdly, the fact that two witnesses may perceive an event very differently, especially when one is an outside observer and the other is an intimate participant, tells us nothing about whether their accounts are truthful or reliable. That is a matter which the trial judge had to assess for herself …”

48. His Honour went on to consider three points that the trial judge had considered on the question of admissibility of that evidence. He said at [26]:

“26 Secondly, the judge continued:

‘But, again, it seems to say no more than what commonsense would say, in any event, that if you are focussed on one thing you are going to miss other things.’

If that were correct, it was not a field of specialised knowledge; there is much to be said for that view.’”

49. The question here is whether the evidence of the plaintiff and Ms Callister are simply irreconcilable. If so, and the evidence of Ms Callister, who was a disinterested party in the litigation, is accepted by the Court, then the plaintiff would, in the second defendant’s submission, have failed to establish his claim against the second defendant on the balance of probabilities as it could not be said that he had established the presence of the black car on the roadway to that standard of proof.

Determination – Findings of Fact

50. Having regard to all of the evidence, I make the following findings of fact:

1. The plaintiff was travelling as a passenger in a vehicle driven by the first defendant which left their place of employment at Life Fitness Australia on Eastern Valley Way at approximately 12.30pm on 29 February 2012.

2. The vehicle travelled in a southerly direction along Eastern Valley Way for a distance of some 200 metres when it came to a left-hand bend in the roadway.

3. There were two carriageways for vehicles travelling in a southerly direction and two carriageways for vehicles travelling in a northerly direction along Eastern Valley Way.

4. It was raining, and the roadway was wet.

5. As the vehicle travelled south, the plaintiff was making a phone call on his mobile phone and not concentrating on the roadway in front of the vehicle.

6. As the vehicle driven by the first defendant approached the bend in the roadway, he was driving in the centre lane, or second lane for vehicles travelling south.

7. As the vehicle negotiated the left-hand bend in the roadway, a black coloured vehicle travelling in the kerbside lane merged into the centre or second lane, cutting off the vehicle being driven by the first defendant.

8. The first defendant took evasive action and braked, losing control of the vehicle, causing it to turn to the right and cross the roadway, crossing onto its incorrect side of the road and coming to a rest adjacent to the western guttering of the roadway where it protruded across the whole of the first lane for traffic heading north, and part of the second lane.

9. After the vehicle came to a stop, the vehicle driven by Ms Callister drove into it, colliding with the front passenger door which was situated in the middle of lane 1 for vehicles travelling north.

10. The driver of the RAV 4 vehicle, Sharon Callister, saw the vehicle, in which the plaintiff was travelling as a passenger, at a time when the driver had lost control. The incident happened quickly and her vehicle ended up off the western side of Eastern Valley Way, down an embankment. She described herself as being very shocked following the incident and she had a recollection of the other vehicle fishtailing out of control. She slowed her own vehicle down, but had no recollection of the impact between her vehicle and the vehicle in which the plaintiff was travelling as a passenger.

11. Ms Callister had no recollection of being asked whether she ever saw a black car coming in the opposite direction and there was no such reference to a black car in her statement.

12. Whilst I accept her evidence that when she had focussed her attention on the fishtailing car, there were no other cars travelling in a southerly direction between her car and it, I do so as her recollection of an event which was somewhat imperfect. I find that she did not see what caused the other vehicle to lose control as it negotiated the bend. In doing so, I am not prepared to speculate about the course of travel of that unidentified black vehicle.

13. I do not accept the evidence of Ms Callister that there was not a chance that any other car would have passed the vehicle being driven by the first defendant because she had “a very clear distance between herself and the car that was fishtailing and there were no other cars”. The fact that she collided with the first defendant’s vehicle as it was stationery across the northbound carriageways of Eastern Valley Way, suggests that there was not a very clear distance between herself and that vehicle, or that she was able to make other observations in respect of traffic on her approach to the point of impact. Rather, it is clear that she had been unable to take evasive action and no doubt her attention was focussed on that vehicle. Further, her statement to the investigator (exhibit 2D10) makes it clear that the vehicle was fishtailing across the road.

14. The documentary evidence referred to above, including the first defendant’s statement (exhibit G), the journey claim completed by the plaintiff on 21 March 2012 (exhibit 1D1) and the statement to the police dated 28 August 2012 (exhibit 8), provide a consistent version of the accident consonant with the plaintiff’s evidence, and the statement given by the first defendant to the police.

Determination of Liability

51. Based on the facts as I have found them and applying the principles of law outlined above, and Part 1A of the Civil Liability Act 2002, I find that the first defendant was negligent in the manner of driving and control of his motor vehicle by failing to take precautions against a risk of harm to the plaintiff, that he would suffer personal injury if the first defendant failed to take precautions against that risk of harm. I find the risk here foreseeable and not insignificant. In driving his vehicle at a speed where he could not manoeuvre it to avoid a collision with the unidentified black motor vehicle, and still maintain control of the vehicle, I find that the first defendant breached his duty of care to the plaintiff.

52. I also find that the driver of the black unidentified motor vehicle similarly breached his duty of care to the plaintiff by veering suddenly onto the path of the first defendant’s vehicle. As to causation pursuant to s 5D of the CLA, generally in motor vehicle accident cases where negligence is established pursuant to ss 5B and 5C, there is little issue that factual causation follows pursuant to s 5D(1)(a), and once that is established, there is usually no issue that it is appropriate for the scope of the appellant’s liability to extend to the harm caused to the injured party pursuant to s 5D(1)(b) – see for example Nominal Defendant v Bacon [2014] NSWCA 275 at [15] and [16]. Pursuant to s 5E of the CLA, the plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. I find both factual causation and scope of liability made out against the first and second defendants.

53. On the issue of apportionment of liability between the defendants, I find that it was the actions of the driver of the unidentified black vehicle which merged from the kerbside lane into the centre lane in the path of the vehicle being driven by the first defendant as being substantially liable for the plaintiff’s injuries. However, the first defendant, by driving at a speed which is excessive in the circumstances and failing to control his motor vehicle and driving onto the incorrect side of the roadway where it came to collision with the vehicle driven by Ms Callister, also materially contributed to and was liable for the plaintiff’s injuries. The principles relevant to apportionment of liability between tortfeasors are well established – see Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492. That case concerned the appropriate approach in determining contributory negligence. However, the High Court’s decision has been held to be the appropriate approach in determining contribution between joint and several tortfeasors. At p 494 the court said with respect to making a relevant apportionment:

“ … involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”

54. The appropriate apportionment is 60% to the second defendant and 40% to the first defendant.

55. Clearly, if I am incorrect in my findings of fact and analysis, and there was no black unidentified motor vehicle, then the first defendant would be wholly liable for the plaintiff’s injuries.

Assessment of Damages

56. The plaintiff was taken from the scene of the accident by ambulance. The ambulance officers recorded an obvious swelling and deformity to his left lower leg and pain in the left hip region. The plaintiff was admitted to Royal North Shore Hospital and on 29 February 2012 underwent a left tibial open reduction and internal fixation by way of tibial nail by Dr Kamra.

57. The plaintiff was discharged from hospital on 3 March 2012 on crutches, into the care of his local medical officer and thereafter he attended the All Care Medical Centre at Wattle Grove. He was reviewed there by Dr Adam Ballin on 7 March 2012 when he complained of severe pain. He was prescribed Oxycontin for pain relief and Endone, together with Paracetamol and advised to attend hospital if any serious concerns arose. He was reviewed on 9 March 2012 when the pain had settled and he was referred for review by Dr Playford. He remained under the care of Dr Ballin and his pain improved over the following months. He was unable to attend a surgical review at Royal North Shore Hospital due to the travel involved. By 15 May 2012 he no longer used crutches but still had pain to the shin when full weight bearing. On examination he was found by Dr Nguyen to have an antalgic gait, favouring his left side, with restriction of movement at the left knee and ankle and tenderness in the interior tibia at mid-shaft. By 5 July 2012 he was noted to be much better, was on restricted duties and restricted hours at work, but was keen to try full hours with a reduction in the restrictions. On examination he still had a mild limp to his gait.

58. 58 The plaintiff was examined by Dr Drew Dixon, orthopaedic surgeon, on 21 February 2013 for medico‑legal purposes. He made the following diagnoses:

1. Healed fracture of the left tibial shaft with internal fixation remaining in situ.

2. (2) Post-traumatic stiffness of his left knee where there is mild retro-patella rub, infra patellar fat pad pain and post‑traumatic stiffness of the left knee.

3. Residual pain at the fracture site, although there has been reasonable fracture union on his later x-ray and clinically the fracture is consolidated.

4. Post-traumatic stiffness of his left ankle and subtalar joint.

5. Tenderness over the distal cross fixation screws with tender scarring at both the proximal and distal cross fixation screws.

6. Post-traumatic metatarsalgia with probable development of Morton’s Neuromas between the third and fourth and fourth and fifth metatarsals and possible stress fracture at the necks of the metatarsals three and four with ongoing limp.

7. Back strain injury with post-traumatic stiffness with dysmetria and lumbo sacral facet arthralgia more marked on the right.

8. Impaction of his injuries on his activities of daily living.

9. Post-traumatic stress disorder with anxiety and depressive disorder.

10. Reliance on anti-inflammatory medication.

59. 59 Dr Dixon’s prognosis was guarded for the plaintiff to return to his pre‑injury duties as a gym equipment installer, roof tiler and forklift driver. He was of the opinion that his working life would have been foreshortened by some five years as a result of the injuries received in the motor vehicle accident. He was not cross-examined.

60. 60 There is no issue that the plaintiff was entitled to damages for non‑economic loss pursuant to s 131 of MACA as the degree of permanent impairment suffered by him as a result of the injury was greater than 10%.

61. 61 The plaintiff gave evidence that he engaged in the following post‑accident employment:

1. The plaintiff returned to work at Life Fitness Australia on light duties on 16 May 2012. He had restrictions on lifting and eventually returned to full hours, with restrictions in August 2012. His employment was terminated on 11 October 2012.

2. The plaintiff was unemployed for one month and then obtained employment at PPG Architectural Coatings as a forklift driver working full time. He suffered pain in his left leg which was aggravated by getting on and off forklifts 50-60 times a day. For that pain he took Endone and Oxycontin and rested when he got home from work. He worked at PPG Architectural for one week only because the money was not good.

3. In mid-November 2012 the plaintiff commenced employment at Toll Ipec, working as a forklift driver. The forklift itself had a two brake system which involved use of the left leg which caused his left knee and ankle pain. He also did work as a strapper, working to secure loads on trucks. This involved work on ladders and climbing on trucks. He would tend to weight bear on his right side. He also worked as a freight handler, unloading trucks.

4. The work at Toll Ipec was heavy work over long shifts, sometimes up to 12 hours. He would have a break every two hours but suffered a lot of pain in his left leg.

5. On 13 June 2013 the plaintiff’s employment with Toll Ipec was terminated.

6. In July 2013 the plaintiff commenced employment with Frontline Demolition after being unemployed for a month. He obtained employment through a friend. The work involved loading rubbish into bins, meaning building materials and refuse. The plaintiff gave evidence that he was in pain every day when working at Frontline Demolition and would have to rest up at night. The work was more physically demanding than his previous employment at Toll Ipec and involved working on uneven surfaces and slopes.

62. A schedule of taxation records (exhibit 2D4) showed by way of a summary that in the taxation year ended 30 June 2012 the plaintiff had earned on average $790 net per week. For the following year ending 30 June 2013 he had earned on average $1,067 net per week and for the year ending 30 June 2014 he had earned $776 net per week. It was the defendant’s contention that the plaintiff’s claim for past economic loss was confined to a period of 11 weeks at $790 net per week, a total of $8,690, whereas the plaintiff claimed in addition, two weeks wage loss in June 2013, together with a loss of $14 per week since 1 July 2013.

63. The plaintiff’s Schedule of Damages (MFI 10) was as follows:

Non-Economic Loss – Section 134 maximum $492,000

$225,000.00

Past Medical Expenses

$7,485.47

Future Treatment

$10,000.00

Past Wage Loss

29/2/12 to 16/5/12 – 11 weeks @ $790 per week

13/6/13 to say, @ $790 per week

1/7/13 to date – 76.5 weeks @ $14 per week

$8,690.00

$1,920.00

$1,071.00

Past Loss of Superannuation Benefits

$1,285.00

Future Economic Loss – “Buffer” & allowance for reduction of work life by 5 years

$150,000.00

Future Loss of Future Superannuation Entitlements

$18,000.00

Fox v Wood

$1,760.00

Past Domestic Assistance as agreed by the parties

$6,000.00

Future Domestic Assistance

1 hour per week @ $47 per hour for 54 years

1 hour x 54 yrs @ $47 per hour – 1 x 992.7 x $47

$46,656.00

Total

$477,867.47

Note:  Workers Compensation Payments

Weekly compensation - $  8,799.96

Medicals and rehab     - $  6,857.22

Total   $ 15,657.18

64. Of those amounts, the claims for past treatment expenses and past domestic care and assistance were agreed. The first defendant’s Schedule of Damages (MFI 9) was as follows:

Non-economic loss	$135,000.00
Past economic loss – 11 weeks at $790 p/w	$8,690.00
Past superannuation	$955.90
Fox v Wood – Workers compensation records confirm no tax was paid	Nil
Future economic loss – Buffer	$40,000.00
Past out of pocket expenses – Medical expenses paid by workers compensation insurer S 83 Medicare	$6,857.22 Nil $593.65	$7,450.87
Future out of pocket expenses – General buffer for intermittent treatment	$5,000.00
Past care – as agreed between the parties	$6,000.00
Future care	Nil
Total	$203,096.77

65. In a report dated 17 April 2014, Dr Dixon reported that on review on 16 April 2014 the plaintiff reported persisting pain and limp in his left leg, with pain at the left knee and in the middle pre-tibial region and at the left ankle medially and at the left foot adjacent to the lateral metatarsals. The pain was more severe on weight bearing and he was unable to walk or stand on his toes, and had difficulty walking on firm surfaces and continued to have difficulty with stairs, steps and climbing and on uneven terrain and slopes. On examination the plaintiff walked with a limp and still had gross difficulty with toe and heel walking. There was stiffness in his left ankle and persisting stiffness in the subtalar joint and of his lumbar segment with forward flexion. Dr Dixon confirmed his diagnoses and noted the difficulties the plaintiff had with his work. His opinion was that he will experience a restriction in earning capacity in the future, with a probability that his working life has been foreshortened by at least five years as a result of the injuries to his left knee, left ankle and foot and to his lower back. Further, he required ongoing treatment by way of analgesia, supervision by his local medical officer on a regular basis, together with review by an orthopaedic specialist. Whilst it was planned that the internal fixation remain in situ, he was having symptoms with the distal screws and may require removal of them in the next one or two years. Later, he may have elected removal of the intramedullary nail.

66. The plaintiff was examined on behalf of the first defendant by Professor Ian Harris who provided a report dated 9 May 2014. Professor Harris examined the plaintiff on the same date and found him to have an antalgic gait and he did not fully extend his knee while walking. He diagnosed a comminuted fracture of the mid-shaft of the left tibia which was treated appropriately with the insertion of an intramedullary nail. The plaintiff currently had generalised pain in the left leg and restriction in extension of the left knee secondary to pain. In respect of that complaint and disability, Professor Harris opined that they were temporally related to the injuries sustained in the accident, but that there was “currently no satisfactory explanation for his ongoing pain and loss of knee extension”. He therefore is of the opinion that the prognosis for the plaintiff was uncertain and suggested an MRI scan which the plaintiff had not undergone.

67. The second defendant tendered a report of Associate Professor Oakshott dated 15 October 2013. He reported constant pain in the plaintiff’s left lower leg in the region of the fracture site and in the left ankle, which was worse in cold weather or after walking for long periods. He also suffered right-sided lower back discomfort. The plaintiff presented on examination as “a genuine healthy person of stated age. He walked into the consulting room with a slight limp, favouring his left leg”. Clinical examination of the right leg revealed no abnormality. On clinical examination he was able to fully extend his left knee. His left ankle had restricted dorsi flexion, that is, he could not extend his left ankle further than a right angle with the shaft of the left tibia.

65. Associate Professor Oakeshott found that as a result of his injury the plaintiff had reduced movements of his left ankle and left hind foot. Because of those symptoms, it was Associate Professor Oakeshott’s opinion that the plaintiff should avoid heavy lifting and pushing and pulling heavy weights and walking over rough ground at work. That type of work would only continue to cause discomfort.

66. There is little dispute on the medical evidence that the plaintiff sustained a comminuted fracture to his left tibia and has ongoing restrictions of pain and restriction of movement in the left leg and left ankle. The only controversy relates to Professor Harris’ opinion that there was “currently no satisfactory explanation for his ongoing pain and loss of knee extension”. I do not accept that opinion, but prefer the evidence of Dr Dixon and Associate Professor Oakeshott which explain the plaintiff’s ongoing pain, restrictions and limp as a result of the ongoing disability to the plaintiff’s left ankle and the placement of the intramedullary nail and screws in the fracture site.

67. The plaintiff’s partner, Elisa Cohen, gave evidence that they had been living together since May 2010. She worked full time as an Operations Manager until the birth of their first child. They shared the household duties 50/50, however, the plaintiff did 60% of the outside work. Ms Cohen was an impressive witness who gave evidence supporting the plaintiff’s case in terms of his ongoing need for medication, the effect of his work on him and the assistance that she has provided him since the accident. She described him as a physically active person before the accident and she confirmed the significant compromise on his life caused by his injuries and ongoing pain.

68. 71 Since the arrival of their son, Ethan, on 29 April 2013, she corroborated the plaintiff’s evidence that he was limited in his ability to care for, and participate in active activities with his son. She also confirmed in cross‑examination that he worked long hours at Toll Ipec, and was asked on a number of occasions to work double shifts. He did so because he wasn’t “going to decline the money”.

69. With respect to non-economic loss, I find that the plaintiff’s injury has been a significant injury for a man of 29 years of age who has worked only in unskilled, heavy work. It is to the plaintiff’s credit that he has returned to work at the earliest opportunity and has continued to obtain work to care for his family. He has, however, suffered ongoing and constant pain with a restriction of movement in the left knee and ankle which has caused him to walk with an antalgic gait or slight limp. It also has restricted his enjoyment of recreational pursuits including running and playing soccer, as well as effecting his domestic life in terms of his ability to care for his child. Accepting the opinions of Dr Dixon and Associate Professor Oakeshott, he will have ongoing problems with his left lower limb. I asses damages for non-economic loss at $175,000.

70. For past economic loss I accept the plaintiff’s submissions that in addition to the 11 weeks that he was off work and in receipt of workers compensation, he has had several short periods of unemployment and is now earning slightly less than he was earning at the time of the accident. For that reason I allow past economic loss in the sum of $11,681.00. I allow past superannusation in the sum of $1,285.00.

71. For the future, I am satisfied that the plaintiff has a diminished earning capacity that is, or may be productive of financial loss and is therefore compensable – see Medlin v State Government Insurance Company (1995) 182 CLR 1. That loss of earning capacity must take into account the fact the plaintiff will, from time to time, be competing with able bodied persons in the marketplace for labour, and may be unsuccessful from time to time in obtaining work – see Wade v Allsop (1976) 10 ALR 353 per Stephen J at p 361. Further, I accept Dr Dixon’s opinion that his working life will be foreshortened for a period of some five years. Pursuant to s 126 of MACA, I am satisfied that the plaintiff’s most likely future circumstances, but for the injury, would have been to continue to work as a installation supervisor for Life Fitness Australia and otherwise do work of a heavy semi-skilled nature for the whole of his working life. It is appropriate in this case to assess damages as a lump sum buffer, as his loss is incapable of arithmetic calculation. There is no basis upon which to adjust the buffer pursuant to s 126(2) by reference to any percentage possibility that the events concerned might have occurred but for the injury. I assess damages for the plaintiff’s future economic loss in the sum of $150,000.00 and allow future loss of superannuation entitlements of $18,000.00.

72. For future domestic assistance, the plaintiff’s claim was reduced on the basis of his evidence to one hour per week at $47 per hour. I allow that sum and allow the plaintiff’s claim in the sum of $46,656.00.

73. I therefore assess damages as follows:

Non-economic loss	$175,000.00
Past medical expenses	$7,485.00
Future treatment	$7,500.00
Past wage loss	$11,680.00
Past loss of superannuation benefits	$1,285.00
Future economic loss	$150,000.00
Future loss of superannuation benefits	$18,000.00
Fox v Wood	$1,760.00
Past domestic assistance – agreed	$6,000.00
Future domestic assistance	$46,656.00
Total	$425,366.00

Conclusion

77. I therefore award damages in the sum of $425,366.00, to be apportioned between the defendants as to 40% for the first defendant ($170,146.00), and 60% for the second defendant ($255,220.00).

Orders

78. I make the following orders:

1. There will be a Verdict and Judgment in favour of the Plaintiff against the 1st Defendant in the sum of $170,146.00.

2. There will be a Verdict and Judgment in favour of the Plaintiff against the second defendant in the sum of $255,219.00.

3. The 1st and 2nd Defendants are to pay the Plaintiff’s costs.

4. Dismiss the Cross-Claims with each party to pay his or its own costs.

5. Grant liberty to apply to the parties on 7 days notice in respect of any special costs order sought.

6. Exhibits are to be retained on the file.

7. Grant a Stay of Judgment for 28 days.

Dated: 6 February 2015

I Certify that this and the preceding pages

are a true copy of the reasons for judgment of

His Honour Judge P G Mahony SC DCJ

Associate: C. Howe

**********

Decision last updated: 09 February 2015