Lewis v Shimokawa - [2008] NSWDC 244

CITATION: Lewis v Shimokawa [2008] NSWDC 244

HEARING DATE(S): 22, 23, 24 and 25 September 2008

JUDGMENT DATE:
14 November 2008

JURISDICTION: District Court - Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Verdict and judgment for the Plaintiff in the sum of $1,444,851.
2. Defendant to pay the Plaintiff’s costs.

CATCHWORDS: NEGLIGENCE - motor vehicle collision – determination of disputed factual issues. - ALLEGATION OF FRAUD – allegation of fraud not proven – Defendant alleged Plaintiff’s claim was made fraudulently. - DAMAGES – assessment of multiple heads of damage.

LEGISLATION CITED: Motor Accidents Compensation Act, 1999, s.124, s.128, s.134, s.136

CASES CITED: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Briginshaw v Briginshaw (1938) 60 CLR 336
Leotta v Public Transport Commission of NSW (1976) 9 ALR 437
Manley v Alexander [2005] 80 ALJR 413
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158

PARTIES: Rebecca Lewis (Plaintiff)
Shizunori Shimokawa (Defendant)

FILE NUMBER(S): 0470 of 2007

COUNSEL: Mr A Lidden SC and Mr P Khandhar (Plaintiff)
Mr A Renshaw (Defendant)

SOLICITORS: Brydens Law Office (Plaintiff)
Moray & Agnew (Defendant)

JUDGMENT

Introduction

1. The Plaintiff seeks damages in respect of injuries she claims to have sustained in a motor vehicle collision which occurred on 21 November 2003. The Defendant alleges that the Plaintiff was not in the motor vehicle at the time of the collision and consequentially alleges that the Plaintiff’s claim is fraudulent. In the alternative, the Defendant also alleges that the Plaintiff has exaggerated the extent of her injuries and disabilities and that she has exaggerated her claim for damages. The outcome of the litigation is therefore dependent upon the assessment of the credibility of the Plaintiff and the witnesses called to give evidence concerning the factual matters upon which the claim is based.

Issues for determination

2. The following issues arise for determination:

(a) Was the collision caused by the negligence of the Defendant;

(b) Was the Plaintiff seated in the motor vehicle in question as she alleges when it was struck from behind by the vehicle being driven by the Defendant;

(i) what was the Plaintiff’s health history and state of health before the collision;

(ii) what were the Plaintiff’s injuries;

(iii) what treatment and medical investigations did the Plaintiff undergo;

(iv) has the Plaintiff taken reasonable steps to attempt mitigation of her damages;

(iii) Fox -v- Wood

Complex analysis required

3. The Defendant has made an allegation of fraud on the part of the Plaintiff and therefore fundamental issues of credit arise for determination. In order to determine the central issue of whether or not the Plaintiff was in the vehicle at the time of the collision it became necessary to undertake a detailed evaluation of the conflicting evidence given by eight factual witnesses, including the Plaintiff and the Defendant, concerning the events leading up to and surrounding the collision in question. The parties chose not to call oral evidence from the opposing medical experts to explain and clarify their opinions. In a claim for substantial damages such an approach is burdensome and unhelpful. This has necessitated a detailed and lengthy analysis of the evidence of the Plaintiff along with the reasoning which underpinned the opinions of the medical examiners in order to arrive at a resolution of the conflicting medical opinions. In combination these matters have required a lengthier than usual exposition of the evidence on the liability and damages issues to arrive at a resolution.

4. Having undertaken these tasks I have summarised my findings below.

Summary of findings

5. I find that the Defendant was negligent in his manner of driving in the events leading to the collision. I find that the Plaintiff was seated in her stationary vehicle when it was struck from behind by the Defendant’s vehicle as she has claimed. As a consequence I reject the Defendant’s allegation of fraud on the Plaintiff’s part. That allegation has not been substantiated by any credible evidence. I find that as a result of the collision the Plaintiff suffered significant physical injury. I find that the Plaintiff continues to suffer from significant ongoing physical and psychological disabilities and has therefore incurred loss and damage. I find that the Plaintiff has taken reasonable steps in an attempt to mitigate her damages. I assess the Plaintiff’s entitlement to compensatory damages in the sum of $1,444,851.

Witnesses

6. The following witnesses were called:

Liability witnesses

(a) The Plaintiff, Rebecca Lewis;
(b) Mr Josie McCaw, the driver of the vehicle that was struck from the rear by the vehicle driven by the Plaintiff;
(c) Mr Andrew McCaw, the brother of Mr Josie McCaw. He was a passenger in the car being driven by his brother.
(d) Mr Kevin Perkins, a passenger in the vehicle being driven by Mr Josie McCaw;
(e) Mrs Sharon Shimokawa, the wife of the Defendant. She was a passenger in the Defendant’s vehicle at the time of the collision.
(f) Mr Stuart Nayler a passenger in the Defendant’s vehicle at the time of the collision.
(g) The Defendant, Mr Shizunori Shimokawa who was the driver of the vehicle that collided with the rear of the Plaintiff’s vehicle.

Damages witnesses

(h) Mrs Merle Wheatley, the Plaintiff’s aunt;
(i) Mr Mark Wheatley, the Plaintiff’s uncle by marriage and pre-injury employer;
(j) Mr Scott Lewis, the Plaintiff’s estranged husband.

Documentary evidence

7. Both the Plaintiff and the Defendant tendered bundles of medical reports that were respectively marked Exhibits “G” and Exhibit “5”. The authors of those reports were not called to clarify and explain their opinions. The Defendant also tendered materials relating to the Plaintiff’s prior medical and injury history.

LIABILITY

8. Some facts are not in dispute. Other facts were the subject of conflicting evidence and challenge.

Facts not in dispute

9. Between about 4.30pm and 5.00pm on Friday 21 November 2003, the Plaintiff was on a journey home from her work. The Plaintiff was driving her employer’s Toyota Hi Ace van registered number TQQ-126 in a southerly direction on a one way portion of the M6 Freeway on the Mt Ousley Road near Wollongong in wet and foggy conditions. For convenience I will refer to the Plaintiff’s employer’s vehicle as the “Plaintiff’s vehicle”.

10. Due to the prevailing foggy and wet road conditions a number of other southbound vehicles, the estimate varied from 15 vehicles to upwards of 30 of such vehicles, had come into collision on that portion of the roadway. The vehicle immediately ahead of the Plaintiff was being driven by Mr Josie McCaw who was a provisionally licensed driver then aged 17 years. Mr McCaw described how at the time he had been driving his mother’s Rodeo utility vehicle south when he drove that vehicle onto the breakdown lane and stopped on the left side of the roadway in order to avoid a collision with another southbound vehicle that had stopped immediately in front of him.

11. When the Plaintiff saw the Rodeo vehicle ahead of her veer off the roadway she also swerved to the left and braked in an unsuccessful attempt to avoid a collision. In doing so the front portion of the Plaintiff’s vehicle came into slight collision with the rear of the Rodeo utility vehicle driven by Mr McCaw (the “first collision”). It was common ground that this collision was at low speed and involved trivial if any resultant damage to the vehicle that was struck from behind by the Plaintiff’s vehicle. Mr Josie McCaw stated that in the first collision the rear of the vehicle he had been driving was not damaged at all, apart from perhaps some scratches to the ball of the rear towbar. In oral evidence he stated that the van which the Plaintiff had been driving had sustained damage to the front bumper bar where that bumper bar had been penetrated by the protruding towbar on his vehicle. Based on this description I find it was most unlikely that the Plaintiff suffered any injury in the first collision.

12. Shortly after the first collision the Plaintiff’s vehicle was struck from behind by a van registration number YJR 779 being driven south by the Defendant on the same section of roadway (the “second collision”). The circumstances surrounding that second collision were the subject of disputed evidence.

Disputed facts

13. The differing versions of the events that ensued after the collision were diametrically opposed. The fundamental difference between the parties was that whereas the Plaintiff claims to have been seated in her vehicle when it was struck from behind by the vehicle driven by the Defendant, the Defendant and five other witnesses called in the Defendant’s case asserted that the Plaintiff was not in the vehicle at the time of such impact but was in fact standing at the roadside near where the second collision had occurred. This difference in the evidence raised mutually irreconcilable issues of credit.

Plaintiff’s version

14. The Plaintiff described how, in rainy, cloudy and very patchy fog-bound conditions on a slippery road in peak hour traffic she drove through a patch of fog into a fog-free clearing where she saw that the vehicle in front of her had braked and swerved to the left. She described how she also followed the course of the vehicle in front but in doing so she caused her vehicle to slide to the left so that the front bumper bar on her vehicle came into slight collision with the towbar of the vehicle in front.

15. On realising that she had collided with the vehicle in front she had a perception that her vehicle was in the middle of the left southbound lane and she therefore anticipated that her vehicle was in a position where it may be struck by other southbound vehicles. She then described how, some 2 or 3 seconds after the first collision, having in the meantime tensed herself in expectation of an anticipated and imminent collision from behind, her vehicle was then struck from behind by the Defendant’s vehicle.

16. The Plaintiff described this second collision as being very forceful such that it lifted her off her seat so that she hit her head on the inside roof of the van. She said that her body was then shaking. This second collision had also forced the Plaintiff’s vehicle into a further collision with the stationary vehicle in front (“the third collision”).

17. She then described, in sequence, how she then looked for her cigarettes and then, after what she described as a couple of minutes, she got out of her vehicle. She described how the Defendant approached her and told her that he had been unable to stop. She described how, in the meantime, she saw and heard a number of further collisions that had occurred in the vicinity. She ultimately said she was aware of some thirty to thirty-five other vehicles that were involved in further collisions in the vicinity.

18. In particular, she recounted her recollection of how the three persons who had emerged from the vehicle in front of her approached her after she had alighted from her vehicle. She went on to describe how she had given these people some of her cigarettes following which they engaged in conversation. She described how, whilst she was shaking, one of these persons gave her his jumper whilst they were waiting for the police to arrive.

19. Counsel for the Defendant, Mr Renshaw, put to the Plaintiff that at the time the Defendant’s vehicle collided with the rear of her vehicle she was not in her vehicle, having previously alighted from it before it was struck by the Defendant’s vehicle. The Plaintiff denied that suggestion. She also denied the suggestion that she had not suffered any injury when the Defendant’s vehicle struck her vehicle.

Version of the Defendant and the Defendant’s witnesses

20. On behalf of the Defendant it was asserted that at the time of the second collision in which his vehicle struck the Plaintiff’s vehicle, the Plaintiff was not inside her vehicle, but was instead standing with others, on the side of the road near the front of her vehicle.

21. The Defendant’s version was supported by the evidence of his wife, Mrs Sharon Shimokawa, each of who gave evidence placing the Plaintiff outside her vehicle at the time of the second collision.

22. The Defendant’s contention that the Plaintiff was not in her vehicle at the time of the second collision was further supported by the evidence of the driver and the two passengers who were in the vehicle which the Plaintiff’s vehicle had struck from behind in the first collision. Mr Josie McCaw, the driver of that vehicle, his brother Mr Andrew McCaw, and Mr Kevin Perkins, another passenger, each gave evidence disputing the Plaintiff’s version. They each gave evidence to the effect that after the first collision and before the second collision the Plaintiff had alighted from her vehicle in order to inspect the damage from that collision. They alleged the Plaintiff had been engaged in conversation with them at the time the Defendant’s vehicle approached the scene and when the second collision occurred.

23. The respective versions of these two disparate bodies of evidence are polarised. Accordingly, it becomes necessary to evaluate the credibility of the testimony given by the Plaintiff and the witnesses called on behalf of the Defendant to consider these differing versions in order to reach a conclusion as to what in fact did occur.

24. Before evaluating the credibility based issues, it is convenient to deal firstly with the issue of whether or not the Defendant had been negligent. That issue is independent of an assessment of the credibility of the Plaintiff’s evidence.

Was the second collision caused by the negligence of the Defendant?

25. The second collision involved sufficient force to cause damage to the rear of the Plaintiff’s vehicle. The force of that second collision was also sufficient to push the Plaintiff’s vehicle into a third and further collision with the rear of Mr McCaw’s vehicle with the result that damage was respectively occasioned to the front and to the rear of the Plaintiff’s vehicle. Thereafter, numerous other collisions occurred on the roadway in the vicinity due to poor visibility which was in turn due to the prevailing foggy conditions.

26. The position adopted by the Defendant on the pleadings was, by paragraph 3 of the Defence, a denial that the Defendant collided with the Plaintiff, a denial that the Plaintiff was in her vehicle at the time but an admission that the Defendant’s vehicle collided with the Plaintiff’s vehicle. The Defendant has asserted that the Plaintiff’s claim is a fraudulent one and based that plea on the allegation that the Plaintiff was not in her vehicle at the time of the second collision.

27. The allegation of negligence raised in paragraph 2 of the Plaintiff’s Statement of Claim and the particulars therein were not otherwise traversed by the Defendant’s Amended Defence filed on 3 March 2008.

28. Mr Renshaw initially submitted on behalf of the Defendant that the evidence did not disclose a case in negligence against the Defendant. He further submitted that the Plaintiff had failed to put the obligatory suggestions to the Defendant to base a submission to the effect that the Defendant was negligent. In reply, Mr Lidden SC submitted that since the allegations of negligence in the Plaintiff’s Statement of Claim had not been relevantly traversed he was not obliged to cover the matters raised by Mr Renshaw and was entitled to submit, on the state of the pleadings, that the Defendant had been negligent.

29. I took the view that Mr Lidden SC was correct in submitting that the Defendant has admitted negligence by non-traversal of the allegations of negligence made on the pleadings.

Leave to further amend the Amended Defence to traverse Plaintiff’s allegations of negligence

30. Mr Renshaw subsequently sought leave to further amend the Amended Defence to deny negligence. I granted leave to allow him to do so on the acknowledged condition that he withdraw his submission that Mr Lidden SC failed to cross-examine Mr Shimokawa concerning certain contrary propositions to those of which he had given evidence : Leotta -v- Public Transport Commission of NSW (1976) 9 ALR 437.

The Defendant’s evidence on the issue of negligence

31. The Defendant Mr Shizunori Shimokawa gave evidence of the events leading up to the second collision. He was driving his van registration number YJR-779 whilst towing a trailer south along the M6 Freeway to travel further south to Jervis Bay. At a point just before he reached Wollongong he was driving his vehicle downhill on a wet road at about 70kms per hour through conditions of mist and varying thicknesses of fog. When the Defendant reached the top of the hill he described the fog as suddenly clearing. He described seeing people standing on and beside the road. I interpolate that these people were standing there as a result of the earlier occurrence of other collisions, including the first collision. The Defendant described how he had applied the brakes and swerved to the left and then collided with the rear of the Plaintiff’s vehicle that was stationary in the breakdown lane. He described how the second collision occurred when his vehicle slid into collision with the Plaintiff’s vehicle whilst he was braking.

32. He said he could not steer his vehicle to the right side of the road to avoid a collision because he saw that people were standing on the road in that area. He said he had to take what I understood him to mean to be a considered decision to take a collision course with the Plaintiff’s vehicle. A few seconds later the second collision then ensued.

33. He stated that before the second collision he had been deliberately driving at 70kph because earlier in his journey his vehicle was being followed on that road by another vehicle that was being driven in a manner that had irritated him. I infer from his evidence that in response to such irritation he had slowed his vehicle to a speed of 70kph to enable that other vehicle to overtake him but when that other vehicle did not pass his vehicle he then kept driving his own vehicle at 70kph. He described that speed as being a slow speed.

34. The Defendant went on to describe the speed of his vehicle at the time of the impact with the Plaintiff’s vehicle as being only 10kph. He stated that there was not a big impact between his vehicle and the Plaintiff’s vehicle which did not accord with the description given by the Plaintiff and Mr Josie McCaw, both of whom described the second collision as “massive”.

35. The Defendant then described some subsequent events which included the occurrence of a further collision from behind when the vehicle which had been following him collided into the back of his trailer. That further collision was then followed by numerous other collisions that do not require further analysis or discussion here for the resolution of the issues between the parties.

36. The Defendant’s evidence as to the distance over which he had travelled and the distance over which he had applied his brakes after seeing the scene of the first collision was somewhat confused and uncertain. He said the distance he travelled from the time he braked from a speed of 60kph or 70kph to the time he stopped could have taken him over a distance of some 70m, 80m or 100m. He also said that before the collision he saw people on the road ahead from a distance of maybe 200m but less than 300m.

37. Except for the Defendant’s given estimate of 10kph as the speed of his vehicle when he collided with the Plaintiff’s vehicle, the facts summarised above were not in great controversy.

38. The Defendant’s wife, Mrs Sharon Shimokawa gave evidence of the events leading to the collision. She gave some evidence as to the speed of the Defendant’s vehicle at the time of the second collision, namely about 10kph. Her evidence concerning her alleged identification of the Plaintiff being outside of her vehicle at the time of the second collision was the subject of dispute.

39. The Defendant stated that after he had wound down the window on his driver’s side and forced his jammed driver’s door open he then got out of his vehicle and approached the people who he saw were at that time standing on the roadside. This latter subject was of some contention. I will deal with that contentious matter later in this judgment when recording my findings on the issue of whether or not the Plaintiff was in the vehicle when it was struck by the Defendant’s vehicle.

40. The Defendant stated that when he alighted from his vehicle he also took some digital photographs with his camera. Some of those photographs were later tendered and marked as exhibits in the proceedings.

41. The non-contentious matters arising from the Defendant’s evidence permit some rudimentary calculations which assist the determination of the issue of whether or not the Defendant had driven negligently.

Resolution of the issue of whether the Defendant had driven negligently

42. If the Defendant had in fact driven at the lesser of his two estimated speeds when he took the opportunity to brake, namely when he was travelling at 60kph, this is the equivalent of travel at 16.7m per second. At the higher speed of 70kph this is the equivalent of travel at 19.4m per second.

43. I have no reason to doubt and I therefore accept the Defendant’s evidence that he was travelling at between 60kph to 70kph. I also accept that he travelled a distance of the order of 100m from the time of his first sighting of the scene of the first collision and before he applied the brakes. At a speed of between 60kph and 70kph he would have travelled that distance of approximately 100m over the course of between approximately 5 and 6 seconds.

44. The obligation of a driver in such circumstances has been authoritatively and clearly stated in Manley -v- Alexander [2005] 80 ALJR 413 per Gummow, Kirby and Hayne JJ at 415:

“… Driving requires reasonable attention to all that is happening on and near the roadway that 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.”

45. In my view it was negligent for the Defendant to have driven over the distance of about 100m in the manner he described, namely, in varying and patchy fog conditions at a speed of either 60kph or 70kph, without beforehand significantly reducing his speed. This is especially so since he knew the road ahead was wet and he was aware that there was an accident scene ahead that had come into view approximately 100m beforehand.

46. The causative consequence of the Defendant not reducing his speed, whether it was from either 60kph or 70kph at a point earlier than when he was about 100m from the vicinity of the Plaintiff’s stationary vehicle, was that when he did ultimately come to apply his brakes he had allowed himself only 100m in which to bring his vehicle to a halt in unusual and slippery road conditions. In my view, in ordinary road conditions, 100m was a more than adequate distance in which to bring his vehicle to a halt from a speed of 60kph or 70kph i.e. within 5 to 6 seconds. However, in the foggy and wet conditions that prevailed at the time, in my view he should have been travelling at a lesser speed which would have allowed him a greater distance in which to stop. In my view he could have progressively applied his brakes with steady but increasing firmness to safely reduce his speed as he travelled over the distance of 100m and as he narrowed the gap between the front of his own vehicle and the rear of the Plaintiff’s stationary vehicle on the roadway ahead.

47. In my view the Defendant’s manner of driving amounted to a want of reasonable care on his part in that he failed to have proper regard to the road conditions in the vicinity of the roadway ahead and adjust his speed to take into account the prevailing conditions.

48. The Defendant failed to exercise reasonable care so as to ensure that he maintained control over the speed and direction of travel of his vehicle in such a way that he may know what was happening in the vicinity around him. Further, in my view he failed to take reasonable steps to react to those events : Manley -v- Alexander 80 ALJR 413. He thereby placed himself, his passengers and other motorists and persons on the roadway ahead of him, including the Plaintiff, at risk of injury in the event that he was not able to safely bring his vehicle to a halt as turned out to be the case.

49. I find that the Defendant applied his brakes too late for the road and visibility conditions and circumstances. I find that as a result he found that he had to apply the brakes so heavily so as to cause his vehicle to skid and continue on its forward movement without full control with the result that his vehicle came into collision with the rear of the Plaintiff’s van which was situated in the left breakdown lane on the roadway ahead.

50. If the Defendant had been keeping a proper lookout to the roadway ahead and had he truly been travelling at a speed of just 10kph before skidding and sliding into impact with the Plaintiff’s vehicle, he ought to have been able to apply the brakes earlier and without skidding, and he ought to have been able to safely and without difficulty stop his vehicle a few seconds earlier in order to avoid the second collision. For this reason I do not accept the Defendant’s evidence or the evidence of his wife Mrs Shimokawa to the effect that the speed at which the second collision occurred was only 10kph.

51. I am satisfied that the Defendant failed to keep a proper lookout. I am satisfied that he failed to drive at a speed appropriate to the prevailing road conditions and I am satisfied that he failed to adequately apply his brakes so as to avoid either driving or skidding into a collision with the rear of the Plaintiff’s vehicle. Consistent with those findings I find that the Defendant drove his vehicle negligently and I find that such negligence was the cause of the collision between his vehicle and the Plaintiff’s vehicle.

Was the Plaintiff seated in the vehicle at the time it was involved in the collision in question?

52. In order to determine the issue of whether the Plaintiff was in her vehicle at the time of the second collision it is necessary for me to consider and weigh the evidence of all the witnesses who gave evidence relevant on this issue.

53. The starting point for that evaluation is, necessarily, the evidence of the Plaintiff. I commence that analysis with an evaluation of firstly, my general observations concerning the demeanour and credibility of the Plaintiff and then secondly, I propose to review the conflicting evidence upon which the Defendant has based the submission that the Plaintiff’s claim is made fraudulently.

General demeanour and credibility of the Plaintiff

54. To my observation, the Plaintiff was extremely nervous when she gave her evidence. She was trembling and her body and limbs, especially her lower limbs, were shaking when she was in the witness box. Although she stated that this shaking and trembling was due to muscle spasm, it was obvious that she was very nervous and anxious at the time she gave her evidence. I also observed her to be trembling and shaking in the same manner when she sat in Court throughout the hearing. I drew this observation to the attention of counsel during addresses. I gained the impression from her demeanour that she was sincere and careful in recounting her evidence. Her evidence was plausible and not internally inconsistent. Her demeanour gave me no reason to doubt the credibility or content of her testimony.

Specific challenge to the credibility of the Plaintiff – allegation of fraud

55. Counsel for the Defendant has squarely put to the Plaintiff that she was not in her vehicle at the time of the second collision. That stance requires careful evaluation as the onus of proof for such an assertion is high. Counsel for the Plaintiff has submitted that for me to accept the Defendant’s submission that the Plaintiff was not in the vehicle at the time of the second collision, I must be comfortably satisfied that the Defendant’s claim of fraud has been substantiated : Briginshaw -v- Briginshaw (1938) 60 CLR 336.

56. To do justice to the parties on this issue I will review what I consider to be the salient details of the evidence.

The Plaintiff’s version of events

57. The Plaintiff’s evidence was that after the second collision she was in the process of getting out of her vehicle when “… the actual three drivers in front were walking up to me … and they were already at my car as I was coming out …”. She later clarified this evidence to say these persons were three males whom she had watched getting out of the vehicle in front of her and who had approached her and had engaged her in conversation.

58. The Plaintiff’s version of that conversation was that Mr Josie McCaw, the driver of the vehicle in front, walked up to her and said “Fuck, that second hit was massive”, whereupon she replied “I know I was in the van, I felt it, I know.”

59. The Plaintiff then described how these three persons who had emerged from the vehicle in front had asked her for, and had accepted from her, some cigarettes. She said she then exchanged contact details with the driver, Mr Josie McCaw. She described how, during this time, that is after the second collision the Defendant had approached her and said “I couldn’t stop”. She described how she waited at the scene in the company of these persons for about 2 hours whilst waiting for the Police to arrive and that during this time other collisions continued to occur in the vicinity.

60. The Plaintiff was cross-examined about her version of these events. She confirmed her evidence in chief that there was a 2 to 3 second interval between the time of the first collision and the time of the second collision. Mr Renshaw squarely put the fraud proposition to the Plaintiff which she denied. The relevant questions and answers were:-

“Q. I put it to you you were not in the - you came into collision with the van in front of you, which the three boys were driving.
A. Yeah. They were driving a Rodeo, not a van.

Q. They got out of the car and you got out of your van, and you were talking on the side of the road, then the defendant's vehicle came into collision with your van.
A. Not true.

Q. You know that's a very serious accusation against you?
A. I realise that.

Q. Why are you now smiling?
A. I'm not smiling. That's not a smile.

HIS HONOUR: It looked like pursed lips to me, Mr Renshaw.

RENSHAW: What it was earlier - I don't know, when your Honour--

Q. None of these people you have met before the accident, have you?
A. No.
Q. I put it to you that any injury you suffered was not caused by Mr Shimokawa coming into collision with your van.
A. That's not true.”

61. There was nothing in the content of the Plaintiff’s evidence or in the manner of her denial of matters put to her in cross-examination that caused me to doubt her veracity on a face value examination of her evidence.

62. I now turn to an examination of the evidence that was contrary to the Plaintiff’s version of events.

Summary of the evidence contrary to the Plaintiff’s version

63. Against the Plaintiff’s version of the foregoing events is the evidence of Mr Josie McCaw, who was the driver of the car that was struck by the Plaintiff, his brother Mr Andrew McCaw, a passenger in their vehicle, Mr Kevin Perkins, the Defendant Mr Shizunori Shimokawa, his wife Mrs Sharon Shimokawa and Mr Stuart Nayler, both of whom were passengers in the Defendant’s vehicle.

64. With the exception of Mr Nayler, who was asleep in the back seat of the Defendant’s vehicle in the lead-up to the second collision, the combined essence of the evidence of these persons is that the Plaintiff was seen to be standing outside her vehicle at the time of the second collision and therefore not inside her vehicle at the time of that second collision.

65. The evaluation of this conflicting testimony involves a qualitative and not a quantitative analysis. On hearing and analysing the liability evidence in conflict with the evidence of the Plaintiff I considered there to be good reasons for doubting the veracity of the evidence that was contrary to the Plaintiff’s version of events.

Version of events given by Mr Josie McCaw

66. Mr Josie McCaw was a machinist engineer by occupation. He was aged about 18 years at the time of the incident and he was aged 22 at the time he gave his evidence. He gave his version of events initially in the form of a narrative and this was then followed by questions and answers. He claimed that the Plaintiff had alighted from her vehicle after the first collision and before the second collision. His evidence in chief included the following exchange:

“Q. All right. After she ran into the back of your van what did she do?
A. She got out and we had a look at the damage.

Q. Where did she go to from when she got out of her car to look at the damage?
A. Just in between the Rodeo and her van.

Q. Where was she standing in respect to yourself?
A. I can't really remember.

Q. Did she speak to you?
A. Yes.

Q. For how long?
A. Only a little bit, only a few minutes if that, yeah.
Q. So how long after she collided with you did the other car hit the back of her car?
A. Probably a couple of minutes, I suppose. We had time to talk about it, have a look and say, "Yeah, no dramas," and then away it went.”

67. Subsequently, his evidence included what I considered to be a revealing qualification to his recollection of events which suggested that he did not have an actual recollection of where in fact the Plaintiff had been standing in relation to the Rodeo utility and her van. Instead, he had made an assumption concerning where she had been standing at the time to which he was referring.

“Q. When the other vehicle hit the back of her vehicle where was she standing, do you remember?
A. No, she would have been around us.”

68. Mr McCaw acknowledged that it was not until almost 3 years after the incident before anyone had asked him any questions about these collisions. He had less than a year’s driving experience at the time of the collision. He described how, understandably, he had been terrified and shaken as he stood by the side of the road not knowing if he was going to be struck by another vehicle whilst multiple collisions were occurring in the vicinity. I gained the impression that the alarming nature of these circumstances had been starkly imprinted on his emotions. This raised the possibility that his recollections had been coloured and distorted by the terrifying events that had occurred around him.

69. In my view, Mr Josie McCaw’s evidence contained some significant internal inconsistencies, as the following sequence from within his evidence shows:

“Q. Immediately upon the second impact, there was only a second or so before there were subsequent impacts further down the road. Is that right?
A. After the first impact I had time to call my mum and tell her and then after the second impact I heard, I held the phone up and Mum could still hear the cars crashing.

HIS HONOUR

Q. By first impact you mean the--
A. The very minor one. We got out--

Q. The minor impact between the van and your car?
A. Yeah. We talked and then when the boys said, "Watch out", we jumped over the guard rail, rang my mum, said, "Look, we've had an accident. It wasn't that bad to start with. Now, all these cars have hit." And she could still hear while I was talking to her crashing in the background, that is how long the accidents kept going for.

Q. She could hear?
A. The cars still crashing in the background.

Q. Whilst your mum was still on the phone?
A. Yes, she could hear them still crashing. So it wasn't such a split reaction thing. It took a long time for all the cars to eventually bank up, bang, bang, bang, bang, bang.

LIDDEN

Q. But you didn't jump over the guard rail in terror and immediately telephone your mother, did you?
A. Yeah, when we jumped over we were listening to the cars bang and the first thing I grabbed a phone and rang me mum to let her know what's going on.

Q. So when you telephoned her, the banging of other cars colliding had already commenced. Is that so?
A. Yeah.

Q. And it continued while you spoke to her on the telephone?
A. Yeah.
Q. Over a number of minutes. Would that be right?
A. I wouldn't say minutes, no, it was only a short phone call.”

70. In my view the foregoing excerpt from Mr Josie McCaw’s testimony demonstrates a fundamental internal inconsistency in his evidence concerning the timing of relevant events by reference to a telephone call he said he had made to his mother. On the basis of the foregoing evidence I find that Mr McCaw made a telephone call after the first impact and that this call was still continuing at the time when the second impact occurred. On the basis of this evidence from Mr Josie McCaw I find that he did not approach the Plaintiff’s vehicle, and therefore, the Plaintiff, until after the second impact had occurred which involved the Defendant’s vehicle. He agreed that after the Defendant’s van had collided with the Plaintiff’s vehicle he had said to the Plaintiff “Fuck, that was a massive impact” which was consistent with the Plaintiff’s version and timing of the conversation.

71. Mr Josie McCaw acknowledged that his memory of the incident had faded over time but he claimed he was able to still remember a lot of key points about it. I find that this is what has in fact occurred. He has recalled some key points but I find that in the process he has conflated his recollection of key events such as the timing of the second collision, including the timing of when he in fact spoke to the Plaintiff. I find that his recollection of the sequence of these events was wrong.

72. Mr Josie McCaw had expressed some irritation at being harassed by insurance company investigators concerning the supply of or corrections to statements he had earlier provided concerning the incident. He said that he had last read over his statements towards the start of the year 2008. I find that evidence extraordinary and I do not accept it as being truthful.

73. He agreed that since about 2006 he had “many, many” contacts with people over the incident. He agreed these unsolicited and unwelcome contacts had caused him trouble in connection with his work. He denied that the subject of the collision had been an endless topic of conversation in the family. In this regard his evidence was:

“Q. Over the last few years.
A. We haven't talked about the accident, really. I told my brother that - we talked about it after it happened, and then after I told them that they were trying to get in contact with them, but we never sat down and talked about the accident as such, no.

Q. But surely when you are being pursued by these people, Mr McCaw, about whether this plaintiff was in the car or not in the car you'd be talking to the two others who had been there, wouldn't you?
A. No. My brother is in the army so I have little contact with him and Kevin works down at Hay so I have very little contact with him either.

Q. But over the last couple of years you've spoken to each of them many times?
A. Yeah, not about the accident, no.

Q. What about--
A. I was under strict instructions as well not to talk to them about any of the case details.
Q. Who told you that?
A. Other gentlemen that I've been spoken to about things. They said, "Can you refrain from talking to people about the accident" so we don't.”

74. In contrast, the following excerpt from Mr Josie McCaw’s cross-examination shows that he had agreed that the collision was in fact a topic of conversation for him in 2003:

“Q. Where did it happen that you were told this, "Don't talk to the others."?
A. Just over the phone, "If you can refrain from talking to other people, then don't."

Q. By the time you were told that, it was a bit late because you'd already discussed this matter dozens of times with your friend and your brother, hadn't you?
A. No. We really haven't. You keep saying that over and over.
Q. Wasn't it the most extraordinary thing that ever happened to you in your life, Mr McCaw?
A. Yeah, back in 2003, we talked about it, yes.”

75. I find that Mr Josie McCaw’s evidence concerning the interval of time between the first and the second collision was unreliable as is confirmed in the following excerpt from his evidence which was in contrast to his earlier evidence that the interval between the collisions was “probably a couple of minutes”:

“Q. Very difficult to gauge time, isn't it, when there's a lot going on? Have you found that?
A. Yeah, in that sense, yes.
Q. So, 2 minutes is nothing more than an estimate, is it?
A. No, that's right.”

76. It seems curious that other aspects of his memory had been affected by the passing of time yet oddly, he claimed to have a clear memory of conversing with the Plaintiff, his brother and Mr Perkins on the left side of the vehicles near the guard rail by the roadside as is evident in the following excerpt:

“Q. Where did this conversation, do you say, take place?
A. On the left-hand side near the guard rail.

Q. Were all three of you there for it plus Ms Lewis?
A. Yes.
Q. You have a clear memory of that, do you?
A. Now of that part, yes.”

77. He was asked about the last time he spoke to his brother about the incident. He said it was about 5 years ago. He said they had spoken about it for maybe a week after the incident but not afterwards until more recently when people had started harassing him for statements. He said he could not recall sitting down with his brother to talk about the incident in general conversation over the last few years. I had cause to doubt this aspect of his evidence after I had subsequently heard the evidence of Mr Andrew McCaw and Mr Kevin Perkins. A comparison of the evidence of all three of these persons on this issue of potential cross-referencing and discussion of their recollections caused me to doubt that the recollection recounted by Mr Josie McCaw was in fact his own recollection.

78. Another aspect of Mr Josie McCaw’s evidence that caused me to doubt the credibility of his testimony was the manner in which he failed to take seriously his obligation to provide a truthful statement of relevant events when he was approached for this purpose, as the following excerpt from his evidence discloses:

“Q. You see, when you were speaking to these people, the two that you spoke to - one over the telephone and one outside your work - were you telling them a lot of rubbish deliberately just so as to deceive them?
A. I wasn't taking it serious really at the time, not 100% serious. Like I say, I just finished a 14-hour shift when he come to my work.

Q. So you were treating it as a bit of a joke, were you?
A. Not a joke but--

Q. What do you mean?
A. --well, just, if you worked 14 hours in a physical job and then someone comes out and tried to pound you with questions from four years ago, you're not going to be on the ball as if you've had a rest and had time to think about, are you?

Q. But it was you who used the phrase, Mr McCaw, that you weren't treating it totally seriously. Do you remember that?
A. Yeah, not taking it totally, like, not sit down and really thinking about everything. It's just, "Let's answer his questions, get it out of the way and so I can get home."
Q. Without regard to whether the answers were correct or not. Is that it?
A. That would have been fairly correct. I wouldn't have gone too far out of the lines.”

79. In my view, Mr Josie McCaw’s attitude emerging from the foregoing excerpt from his evidence revealed him to be someone who was prepared to handle the truth carelessly if it suited him to do so or if it was inconvenient for him to take the time and trouble to give an accurate and truthful rendition of events. This caused me to further doubt the truthfulness of his testimony.

80. Further, it appeared from his evidence that when he felt people were “hassling” him this had a negative effect on his disposition to provide assistance and he was prepared to say anything to avoid being pressed for further details:

“Q. And that was a man who identified himself to you? It wasn't one of these 50 who were giving false names to your mother and then a different false name to you, was it?
A. Well, like I said, I wouldn't know because I didn't pay attention to names, like I've told you so many times before. It's still - if he was a bloke about this statement, I still received over 15 phone calls about it - that I told them, personally, "Do not contact me between 7.00 and 7.00. I cannot answer the phones then. I'm busy," and they kept hassling me and hassling me. So, in the end, I just got the shits and didn't worry about it because I told them.

Q. You got the shits, as you call it, a lot earlier than that, did you not, Mr McCaw?
A. Yes.

Q. What was going on was people were contacting you trying to find out about this accident and you were just telling them absolutely anything?
A. To get them off the phone.
Q. Exactly.
A. Yes.”

81. Evidence of Mr Josie McCaw’s careless attitude to the truth as shown in the preceding excerpt from his evidence is, in my view, the content of Exhibit “K” which comprises a witness statement obtained from Mr McCaw by Phoenix Global Pty Ltd in which it is suggested, in paragraphs 16 to 18, that the Plaintiff was not in her vehicle when the second collision occurred. I find it to be significant that when his statement had been corrected Mr Josie McCaw still persistently refused to co-operate with the completion of the statement by signing it and sending it back to the persons who had forwarded it to him for signature.

Conclusions on the evidence of Mr Josie McCaw

82. Having heard and reviewed Mr Josie McCaw’s evidence as a whole I have formed the view that he was an unreliable witness in respect of recounting the key events with which I am concerned. I find that at the very least he has mistakenly reconstructed his memory in respect of some key events that surrounded the incident, if not worse. In forming this adverse view of his testimony I have taken into account the fact that he was young and relatively immature at the time of the collisions. The events which surrounded the formation of his memory were undoubtedly terrifying to him and he was shaken at the time. In my view these events have led to a distortion of his memory. I find that when he was approached by private investigators who, in his words, were harassing him and causing him trouble at his work, these events caused him to form a negative attitude to participating in the process of assisting those with an interest in doing so to arrive at the truth of the matter by investigation. I infer from such conduct that if it suited him to do so, he would display a similar attitude to giving evidence. I find I cannot rely on the evidence of Mr Josie McCaw as a result of the foregoing matters and I do not accept his evidence to the effect that the Plaintiff was not in her vehicle when it was struck from behind by the Defendant’s vehicle. I find that he did approach and converse with the Plaintiff but I find this occurred after the Defendant’s vehicle had already driven into the rear of the Plaintiff’s vehicle in the second collision.

Version of events given by Mr Andrew McCaw

83. Mr Andrew McCaw was aged 16 at the time of the incident. He was aged 21 at the time he gave his evidence. His previous vocations comprised working on fishing boats and bricklaying. In 2007 he enlisted as an infantryman in the Australian Army and when he gave evidence he was a current serving soldier who had seen overseas service in Timor.

84. His evidence was interspersed with vernacular expressions which I consider to have been proffered, for whatever reason, in an attitude and manner of bravado and self-aggrandisement. This caused me to have significant reservations about the truthfulness of his evidence.

85. He claimed that after the first collision the Plaintiff alighted from her vehicle to check the damage from that collision and was standing outside of her vehicle along with Josie MacCaw when the second collision occurred. He described how at that time he and his friend, Mr Perkins, had “secluded” themselves and were standing by the scene and having a cigarette. He claimed that he had almost finished his cigarette by the time the second collision had occurred.

86. For a constellation of reasons I find myself unable to accept Mr Andrew McCaw as a reliable witness.

87. Firstly, I find that, like his brother, he has confused if not exaggerated the time sequences for the occurrence of relevant events. On one version of his evidence he had the Defendant standing at the scene laughing and giggling along with his brother Mr Josie McCaw at a time when the Defendant could not possibly have been at the scene at the time to which he was referring, as the following excerpt from his evidence, particularly his very first answer to Mr Lidden SC in cross-examination, shows:

“RENSHAW

Q. How long after the car that collided with the back of your vehicle did the driver get out of that vehicle?
A. Which vehicle? The--

Q. The one that came into the rear, that collided--
A. The one that hit us up the bum?

Q. Yeah.
A. Pretty much straightaway. Got out straightaway. She was saying, "No, it's no worries, don't worry about it", because she's insured. We were all sweet, so we were all having a talk and they were having a laugh and giggle, doing what they done, and I was just at the side of the road going, "This is bad", just all the fog. Bit upset because I didn't get to see my girlfriend.

RENSHAW: I have nothing further, your Honour.

HIS HONOUR: Yes, Mr Lidden.

<CROSS-EXAMINATION BY MR LIDDEN

Q. Who was laughing and giggle, Mr McCaw?
A. The lady, my brother, the Asian fellow. Me and my mate were just standing to the side having a smoke. They were having a smoke, but me and my mate just secluded ourselves.
Q. Could you see what the laughing and giggling was going on for?
A. They were just all talking, having a laugh about it. Saying how lucky they were and that. I don't know, I wasn't really there. I was over to the side.”

88. I take Mr Andrew McCaw’s reference to “the Asian fellow” to be a reference to Mr Shimokawa, the Defendant in these proceedings as there was no evidence of any other person of Asian appearance present at the scene. In my view Mr Andrew McCaw’s evidence as cited above shows he has confused the facts. If he got out of his vehicle after the first collision “pretty much straight away” which I infer to mean almost immediately, then it would not have been possible for him to have them “all having a talk and … having a laugh and a giggle” including with the Defendant when, I infer from his own description, at that time the Defendant’s vehicle had not yet struck the Plaintiff’s vehicle and the Defendant could not have been at the accident scene at that time. I therefore find this aspect of his evidence as lacking in credibility.

89. Secondly, I do not accept his evidence that he never once had a discussion with his brother Mr Josie McCaw and his friend Mr Kevin Perkins in connection with this case apart from during the first few days after the incident. This is because such evidence conflicts with the evidence of both Mr Josie McCaw and the evidence of Mr Perkins.

90. Thirdly, when his evidence was tested by cross-examination he displayed an attitude of unconvincing mock indignation and aggression which led me to doubt the truthfulness of what he was saying in his evidence. His evidence was in my view unnecessarily defensive as is evident in the following excerpt:

“Q. Seeing Kevin from time to time?
A. He's my best mate. He's like a brother, I've known him since kindergarten.
Q. So you've been seeing him regularly until you went in the army?
A. Yeah, I know what you're getting at and I don't like it, because no, we don't talk. We've got better things to talk about than some smash that happened five years ago.”

91. I inferred from his aggressive demeanour when giving the preceding answer that he was untruthful in his answer.

92. Fourthly, he denied having spoken to his brother and to Kevin Perkins in the few days before he gave his evidence. I found this evidence unconvincing.

93. Fifthly, he appears to have exaggerated his description of the position of the Plaintiff’s stationary vehicle after the first and second collisions. This caused me to doubt the accuracy of his evidence generally. Exhibit “L”, Exhibit “7(1)” and Exhibit “7(3)” show the Plaintiff’s vehicle to be parked almost parallel to the carriageway and almost totally within the roadside breakdown lane. In contrast Mr Andrew McCaw gave evidence that suggested that the back of the Plaintiff’s vehicle was protruding out onto the roadway by about a foot. That evidence was apparently contradicted by Exhibit “7(3)”. His evidence was:

“Q. He jumped over the tray?
A. He was in and out, over. Because he come around the front of the car, the he jumped over and pushed - we pushed the ute forward a bit more and pushed her van forward a bit more so it was off the road, because her arse end was still hanging out, kind of on the road.

Q. You're just making this up, aren't you?
A. No, I'm not.
Q. Pushing the vehicles off the road?
A. They were on - the ute was fine, on the broken down lane. The van - the van didn't make it in in time, so common sense, bit of a turn, she had about a foot of her arse end of the van hanging out on the side of the road.”

94. An examination of Exhibit “7(3)” reveals an apparent inconsistency with Mr Andrew McCaw’s evidence. The rear driver’s side tyre of the Plaintiff’s vehicle can be clearly seen to be partly on the white dividing line which is somewhat inconsistent with the above excerpt from Mr McCaw’s evidence. I allow for the possibility that the vehicles may have been moved after the third collision so I make no finding on this issue other than to identify a doubt I had on this evidence.

95. Sixthly, his evidence on an incidental but nevertheless remarkable detail conflicted with the evidence of the Defendant Mr Shimokawa. He claimed that after the second collision he, along with the Plaintiff and the Defendant, were in company and laughing whereas the Defendant did not agree that he had been laughing at the scene. I took the Defendant to be a very serious person who, on his own evidence at transcript page 200 stated “…Who me? You must be joking. I never laugh. … I don't laugh.” I accept the Defendant in this regard and I therefore reject Mr Andrew McCaw’s evidence that he was laughing with the Defendant at the scene with the Plaintiff.

96. Seventhly, and perhaps of the greatest concern over the veracity of his testimony, I noted that he was prepared to give an investigator an admittedly erroneous witness statement containing exaggerations of fact which he had provided to the investigator whilst drunk. Of equal concern, is that later he took no steps to correct that erroneous statement in circumstances where I find he must have known that at least one party in the litigation would be relying upon that erroneous statement which he had knowingly provided to the investigator in vino non veritas. This was not the kind of behaviour expected from a credible witness.

97. Eighthly, his evidence in this regard was bizarre in its candour given the general attitude he displayed when he gave his evidence. The following exchanges occurred:

“Q. You were exaggerating when you spoke to the investigator about the length of time, even at 1 or 2 minutes, weren't you?
A. Yeah, probably exaggerating then, yeah.

Q. So you're saying it was more than it actually was?
A. Mate, all I wanted to do with that interview was hurry up and finish it so I could go back out with my mates.

Q. How did it--
A. So I just rushed everything.
Q. How did it get from 1 to 2 minutes to 5 minutes or possibly 3?
A. Sober.”

98. I reject as inaccurate reconstruction Mr Andrew McCaw’s evidence to the effect that it was the subsequent achievement of a state of sobriety that led him to arrive at a more accurate rendition of the time lapse to which he referred.

99. Ninthly, Mr Andrew McCaw gave his evidence which at times displayed an aggressive manner which was noted at T 146.33-35 in the following exchange in cross-examination:

“Q. Are you feeling a bit aggressive today, Mr McCaw?
A. No, I just don't like what you're getting at.
HIS HONOUR: Mr McCaw, just settle down. Mr Lidden has a right under the court's procedural rules to ask you questions about your evidence, so please be patient, listen to his questions and give the best answer you can. If you don't understand his question you can say so, but otherwise, you have to pay attention to the question and answer it.”

100. His aggression was also evident in the following exchange when he denied speaking to his brother in the previous few days concerning the events of the incident. In my view his demeanour, in which he leaned forward and spoke very slowly in a lowered tone of voice, with narrowed eyes was one of aggressive indignation: T 146.43-147.2

“Q. Over the last couple of days, have you been talking to your brother about the accident?
A. No, I haven't.

Q. Kevin, have you been talking to him?
A. No, I haven't.
Q. Did your brother come out and tell you what questions he had been asked in here yesterday?
A. No, he didn't.”

101. He also displayed anger when cross-examined which is not the behaviour one expects from a truthful witness whose evidence is being tested, as is evident from the following exchange during his cross-examination by Mr Lidden SC:

“Q. You're smiling at the moment. Do you find that amusing?
A. No, because I'm getting angry, because he wasn't. If you call doing about 40, 50Ks on 110K speed limit a bit too fast.”

102. The Plaintiff disputed Mr Andrew McCaw’s assertion that when she was standing by the roadside and on the approach of the Defendant’s vehicle he grabbed her and placed her out of harm’s way. The cross-examination of Mr Andrew McCaw on this issue where Mr Lidden SC was quoting from Mr McCaw’s in vino non veritas statement was:

“Q. "I've grabbed her." That’s not right, is it. That’s false.

A. It was like a grab tap. Like, just say that's her arm, right. It's just like that. "Come on."

Q. You're thinking to yourself there's too much of a gap between a grab and a tap now, are you, Mr McCaw? So you'll put them both together?
A. No. It's the same thing. All right. I grabbed her, then. All right. If you want that, it’s a grab. I call it a tap, I call it more of a tap grab.

HIS HONOUR

Q. Which was it; a tap or a grab?
A. Yeah, yeah. Well, have you ever hurried someone along?

Q. Mr McCaw, which was it; a tap or a grab?
A. I'll say a tap.

Q. Why would you say that?
A. Because it's like your little kid; you hurry it along. It's more of a nudge than anything.

LIDDEN

Q. I'm just going to continue reading.
A. It's so simply done and you just don’t understand. You understand, but you're trying to get something out that didn't happen.

Q. Mr McCaw, I'm just reading out words that you said to an investigator and which were given to us by the solicitors for the Japanese gentleman in the van with the trailer on it as being a truthful account of what you said about this accident. Do you understand?

A. (No verbal reply)

Q. I'm reading out your words. Do you understand?
A. Yeah. But you're trying to manipulate my words.

Q. I'm just asking you.
A. I wasn't born yesterday.

HIS HONOUR: Mr McCaw, what Mr Lidden has just told you, and you must assume it to be correct unless you have good reason to think otherwise, is that he's simply reading to you your words from what appears to be a statement you made. Okay? So let him ask the questions based on that.

LIDDEN

Q. I was going on with this passage, Mr McCaw: "So I grabbed her and put her to the side." That was just false, wasn't it.
A. I did put her to the side, yeah, but I didn't grab.

Q. By what means did you put her to the side?
A. Well, she followed.

Q. That’s not putting her anywhere, is it. That’s her following you.
A. Well, I warned her. I gave her an early warning.

Q. By what means, Mr McCaw?
A. By going, "Jump, hey" and a little nudge.

Q. "Josie jumped out of the back of the ute." Once again, false, isn't it.
A. Yeah. That’s false.

Q. "And went down the sort of side part near the rail."
A. Yeah.

Q. Did you do that?
A. Yeah. We all did.
Q. But he didn't jump from the ute down the side part near the rail?
A. No. We ran and jumped. Mate, if I didn't say that, I guarantee you, that lady would have been squashed and my brother would have no head left.”

103. I do not accept Mr Andrew McCaw’s evidence that he either grabbed, tapped, nudged, warned or otherwise assisted the Plaintiff to get out of the way of the Defendant’s vehicle. I find that the above portion of Mr Andrew McCaw’s evidence was a further example of his proneness, for whatever reason, to incorrectly exaggerate his account of the events concerning the incident and in particular, the location of the Plaintiff when her vehicle was struck by the Defendant’s vehicle.

Conclusions on the evidence of Mr Andrew McCaw

104. I find myself unable to rely on any aspect of the evidence of Mr Andrew McCaw where it conflicts with the evidence of the Plaintiff. There were aspects of the evidence of both Mr Josie McCaw and Mr Andrew McCaw which suggested to me that they had collaborated on the content of the evidence they intended to give and I find that they in fact did so. His preparedness to exaggerate and mislead an investigator, for whatever reason, causes me to heavily discount anything he said in his evidence as I infer from such behaviour that he would also be prepared to exaggerate his evidence and also mislead the court. In my view he was a witness prepared to say anything without regard to the truth of what he was saying. I do not accept his evidence to the effect that he had seen the Plaintiff alight from her vehicle before the second impact that had been caused by a collision with the Defendant’s vehicle.

Version of events given by Mr Kevin Perkins

105. Mr Kevin Perkins was the best friend of Mr Andrew McCaw since their days together at kindergarten. From this evidence I infer he is the same age as Andrew McCaw. Mr Perkins is a bricklayer by trade and was engaged in rural irrigation work in Hay, New South Wales. The initial evidence of Mr Perkins was corroborative of Josie and Andrew McCaw in that he claimed that they all got out of the respective vehicles and they were having a cigarette whilst looking at the vehicle damage when the Defendant’s vehicle arrived on the scene and collided with the rear of the Plaintiff’s vehicle. Mr Perkins had travelled from Hay without a subpoena and at the request of Josie McCaw who had asked him shortly before the hearing whether he wished to come to Sydney to give evidence in the proceedings. He stated that Mr Josie McCaw had travelled to Hay to pick him up and take him to Sydney.

106. Mr Perkins acknowledged that it was an unusual circumstance for him to find himself being contacted by someone whom I infer was an insurance company representative some 4 years after the event to discuss the incident. Initially he denied having discussed the incident with his friends but more tellingly, the following exchange occurred which demonstrated that at what I find to be the approximate time he was contacted, namely some 4 years after the incident he, Mr Josie McCaw and Andrew McCaw discussed the matter at length in that they “flashed it for hours” meaning they discussed the matter at length:

“Q. Well, between that phone call from the woman and Josie ringing you up on Saturday, have you seen him from time to time?
A. Yes.

Q. Regularly?
A. Yes.
Q. Has the topic of this accident ever come up in casual conversation, Mr Perkins, on any of those times you've spoken to him?
A. We've talked about this accident two years ago and after that because it was something that happened, we flashed it for hours. You don't forget things like that, but once this court case has happened we have not talked about this situation.”

107. I take Mr Perkin’s reference to the court case to be a reference to the occasion on which he was asked to come to Sydney to give evidence.

108. I find it highly unlikely that Mr Perkins did not discuss the detail of his evidence with the McCaw brothers whenever the opportunity arose to do so, including a discussion with Mr Josie McCaw during the journey from Hay to Sydney. I infer that this was so because Mr Perkins eventually admitted that the incident had been the subject of jocular discussion between them whenever they met over a number of years, as the following sequence taken from his cross-examination shows:

“Q. Any time before yesterday, every time the opportunity presented itself you'd talk about it. Correct?
A. No.

Q. Well, just a little bit, perhaps, Mr Perkins.
A. Well, maybe if we have a drink and a laugh maybe.

Q. Then you'd talk about the accident, what you remembered.
A. What I remember.

Q. What Josie remembered. Is that right? Is that right, Mr Perkins.
A. Yes.

Q. And if Andrew happened to be there, what he remembered. Correct?
A. What are you trying to say?

Q. I'm asking you a question, Mr Perkins, please answer it. If you were in Andrew's company, you'd talk to him about what he remembered about it.
A. When?

Q. Any time before yesterday, Mr Perkins.
A. Any time before yesterday?

Q. Yes.
A. Yeah.

Q. Because until yesterday nobody had said to you, "You shouldn't be talking about this," did they?
A. That's correct. Yes.
Q. And there wasn't much point telling it to you yesterday because you three have been talking about it for years whenever the topic cropped up, haven't you, for years.
A. Yes, yes, it's a laugh. It's always been a laugh.”

109. It is clear from this evidence that contrary to the respective denials, the subject matter of the collision was discussed amongst the McCaw brothers and Mr Perkins.

Conclusions on the evidence of Mr Kevin Perkins

110. I accept Mr Perkin’s admission that over the years since the incident he, Mr Josie McCaw and Mr Andrew McCaw have discussed and laughed about the subject matter of the incident. The evidence of Mr Perkins to the effect that he and the McCaw brothers have discussed the matter of the collision over the years demonstrates the untruthfulness of the evidence of Mr Josie McCaw and Mr Andrew McCaw in which they sought to conceal the fact of such discussions concerning the details of the incident. Following on from this finding I infer that such discussions had the effect of reinforcing a conflated and incorrect belief by these three witnesses concerning the sequence of events that occurred on the day in question. Consequentially I find that they each gave incorrect evidence to the effect that the Plaintiff was outside her vehicle when it was struck from behind by the Defendant’s vehicle.

Version of events given by Mrs Sharon Shimokawa

111. Mrs Sharon Shimokawa was the wife of the Defendant. She was a front seat passenger in the van that was driven by the Defendant. She gave her occupation as housewife. She gave the initial portion of her evidence in the form of a brief narrative. That initial narrative was expressed throughout in the first person plural. The terms of that narrative suggested to me that the evidence she was giving was not truly her own account of events. I infer that her evidence was influenced by a version of events given by her husband. I come to this view because of her use of the expression “we had no option but to hit the van that was in front of us rather than hit the people”. The form of this initial evidence from her and my impression from it caused me to question the weight I should attach to her evidence generally.

112. Mrs Shimokawa was clearly Australian and there was no reason to doubt her facility for self-expression in the English language yet curiously in her answers to a number of significant questions she resorted to the expression “from what I understand” which leads me to infer and therefore find that her evidence describing the events surrounding the incident was based not on her own recollection but was based on an understanding gained from what she had been told by others. I do not accept her evidence that the phrase “from what I understand” was her pet phrase or just a manner of speech, particularly since she could not clarify her use of that expression when the cross-examiner pressed her to do so.

113. I had cause to entertain a number of further doubts about the accuracy of the content of Mrs Shimokawa’s evidence on account of a number of other factors.

114. One such matter concerned her answers to some key questions in her evidence in chief which were in my view unresponsive by reason of the over-inclusion of detail as if she felt the need to persuade and have her evidence accepted. Examples of such over-inclusive answers were:

“Q. After you had collided, did you get out of the car?
A. I got straight out of the car and I went to see if anyone was hurt in the car that we had hit, and I called out, "Is anybody hurt in the car?" One of the men said, "Nobody is in the car."

Q. "Nobody is in the car," of "was in the car"?
A. "Nobody is in the car," and I said, "Is anybody hurt?" They said, "No".

Q. Did you have any conversation with Ms Lewis at all or not?
A. Later; the ambulance driver asked me if anyone was hurt.

OBJECTION

HIS HONOUR: He's hoping to get this in, Mr Lidden.

RENSHAW: That part of - I would have thought - the rae gestae which hasn't been affected by the Evidence Act.

LIDDEN: It's completely unresponsive to the question. The question was: did she have any conversation with the plaintiff? She goes on to tell us of a conversation with somebody else.

RENSHAW: Well, it may have been a--

WITNESS: I had one conversation.

RENSHAW

Q. You had no conversation.
A. I had one conversation.

Q. What was that?
A. I asked if she needed an ambulance.

Q. What did she say?
A. No. I asked the four of them because the ambulance driver asked me to see if anyone needed an ambulance and I said, "No," and then I was concerned because I didn't really know. So I went and asked them. I asked everybody in that section.
Q. Did you look into the car in front, or van in front of you or could you see whether there was anyone inside?
A. I didn't look in because when they said nobody was in the car I believed them.”

115. I find that from the preceding question and answer, any belief held by Mrs Shimokawa to the effect that the Plaintiff was not in her vehicle at the time the Defendant collided with that vehicle was based on hearsay and therefore, on my analysis, lacks probative value.

116. In my view Mrs Shimokawa displayed an attitude of extreme defensiveness when she was cross-examined. Although she said she had not given evidence in Court before and I made allowances for this when considering her evidence, I nevertheless felt she was overly defensive and was lacking in the confidence of her answers which led me to doubt the accuracy of her evidence generally. Her defensiveness is evident from the following exchange:

“Q. You were travelling along on the left-hand lane of how many, Ms Shimokawa?
A. It would have been a three-laned highway.

Q. Do you even remember whether it was three lanes or two lanes, have you any idea?
A. Three lanes.

Q. Three lanes?
A. Yes.

Q. You plumped for that answer because you didn't remember, did you?
A. I recall the, maybe I'm not sure. I'd have to go back there and see - it's four years ago.

Q. You see, a couple of minutes ago when I asked you how many lanes it was, you could easily have said "I'm not sure" couldn't you, rather than say--
A. I feel you're trying to trick me.

Q. --three lanes.
A. Like, I feel like I'm trying to be tricked here.

HIS HONOUR

Q. Ms Shimokawa, all that Mr Lidden is doing is asking you questions to test your recollection. He's entitled to do that and you've got to listen to his questions, pay attention to them and give the best answer you can.
A. And if I don't know, is it okay to say "I don't know".
Q. If you don't know, just say so.”

117. When pressed to give relevant details of the surrounding scene, such as the number of lanes on the roadway she vacillated, initially stating it was three lanes, she then conceded she was guessing about the number of lanes and then she ultimately conceded that she did not remember. This aspect of her evidence caused me to further doubt her reliability as a witness.

118. I find her evidence as to estimated speed of the Defendant’s vehicle as he approached the scene of the accident to be unreliable in view of her concession that she was not good at judging speed. This aspect of her evidence was as follows:

“Q. Are you a driver?
A. Yes, I am.
Q. Are you able to tell me please roughly how fast your husband was going when he came upon the clearing?
A. As a woman I'm not real good at judging that, but I'd say we were down to about 30 or 40 kilometres an hour. I'm not real good at judging speed, like I wouldn't have any idea how fast the car was going.”

119. I find her evidence as to the identification of the Plaintiff to be unsatisfactory and confused. In her evidence recorded at T130.14 she sought to identify the Plaintiff in Court as the person she saw at the scene as “the driver of the car” whereas at T124.50 and T130.47 she had earlier said “I saw her probably, I don’t really know if I’d recognise her out of Court”. There is no evidence that over the intervening years Mrs Shimokawa had access to the photographs taken by her husband at the scene but I consider it would be surprising in the circumstances if she did not refer to those photographs before giving evidence. Significantly, none of the photographs showed the Plaintiff’s face. This is perhaps another reason why Mrs Shimokawa could not recognise the Plaintiff because her recollection was coloured by the photographs she more probably than not examined more recently.

120. Exhibit “M(2)” shows that there were two persons at the scene with white Bermuda shorts and a blue top, as does Exhibit “7(1)”. The photograph comparing Exhibit “7(2)” includes a view of what appears to be another person wearing a blue top and white Bermuda shorts. The blue top in that photograph is of a different appearance to the ones shown in Exhibit “M(2)”. Whether Exhibit “7(2)” is a back view of the Plaintiff wearing a jumper that had been provided to her, as she had described in her evidence, or whether it shows a third person also wearing white Bermuda shorts and a blue top also with long hair, apparently in a pony tail, is a speculative peripheral matter which the state of the evidence does not enable me to reasonably determine.

121. Mrs Shimokawa described how as the Defendant’s vehicle approached the scene of the second collision she saw four people ahead and was concerned about them in case they became hurt on the impending impact. She described one of these people as a woman wearing Bermuda shorts down to the knees and a dark top. She was unable to accurately gauge the distance from which she first made this observation nor was she able to accurately estimate the time during which she made this observation other than to say that it was more than 2 or 3 seconds.

122. At T131.13 Mrs Shimokawa described the Plaintiff’s hair colour as being red. At T135.2 she described the Plaintiff’s hair as being long and pulled up in a pony tail. This was in contrast to Mr Andrew McCaw’s evidence in re-examination:

“Q. How she looked, the plaintiff looked on the day.
A. Yeah.

Q. How was she dressed, can you remember?
A. She had, like, pants on. I know she had, like, jeans on, because she had a
nice butt. Yeah, it was all right.
Q. And what about her hair, can you remember anything about that?
A. Yeah, her hair was down, she had blonde hair. She was finishing work or doing a delivery from work, because her whole back of the van was full of paint, paint thinners and all that, and after the smash she was calling her husband to come pick her up. She was calling her husband to come pick her up.”

123. I observe that the photographs do not enable me to definitively reconcile the differing evidence concerning the appearance and colour of the Plaintiff’s hair.

Conclusions on the evidence of Mrs Sharon Shimokawa

124. A relevant matter to consider when assessing the accuracy of Mrs Shimokawa’s evidence is that although the incident occurred over 4 years ago, the first time she was asked to try and recall the events was a little over a year ago. In my view the effluxion of time has rendered her memory to be inaccurate.

125. I find her evidence to the effect that she had no reason to read her statement about the matter since about a year ago to be unconvincing.

126. I find her denial that the impact from the second collision was massive to be unconvincing and inconsistent with her own apprehensive reaction to the impending collision which consisted of placing her legs up on the dashboard to avoid being hurt.

127. I find myself unable to rely on the evidence of Mrs Shimokawa insofar as she asserts the Plaintiff was not in her vehicle at the time of the second collision. I find her estimate of the Defendant’s speed to be unreliable. I infer that her evidence is dependent on hearsay and I find she has no true memory of the salient details of the events leading up to and surrounding the second collision. I find that in the lead-up to the collision she was immediately concerned to protect herself from injury by placing her legs upon the dashboard and in such circumstances I find it to be most unlikely that at the same time she was paying attention to the persons standing on the side of the road as she has claimed. I do not accept her evidence in which she places the Plaintiff outside of her vehicle at the time of the second collision. In my view she was more likely to be concerned with assisting her husband free himself from their vehicle because his driver’s side door had jammed rather than paying attention at that time to the whereabouts and position of the Plaintiff. I find that she has mistakenly reconstructed the events after a significant lapse of time such that I find myself unable to rely on her evidence as to the Plaintiff’s location at the time of the second collision.

Version of events given by Mr Stuart Nayler

128. Mr Nayler was a back seat passenger who was asleep on the back seat of Defendant’s vehicle at the time of the second collision. He sat up just before the second collision. He described the Defendant’s vehicle as having “clipped” the Plaintiff’s vehicle from behind. Mr Nayler’s evidence conflicted with that of Mr and Mrs Shimokawa in that he asserted that the Defendant’s vehicle was struck from behind before it in turn collided with the rear of the Plaintiff’s vehicle. Further, he denied the Defendant’s vehicle was skidding, which was a conclusion he deduced from an assumption he made that the Defendant had not been driving at high speed in fog. His conclusion as to the absence of skidding was in conflict with the evidence of Mrs Shimokawa.

129. Ultimately, he agreed that the first he became aware of the fact that there had been a collision was when he felt a large bang and then found himself thrown forward into a pole within the van just behind the front seats. He had not been wearing a seatbelt. He was defensive and quibbled over whether there had been a collision with the Plaintiff’s vehicle as distinct from it having been “clipped” by the Defendant’s vehicle. I do not accept Mr Nayler’s evidence in this regard. I find he was asleep at the time of the second collision and had, from hearsay, assumed an incorrect account of the events, including the correct sequence of the collisions.

249. I find that her residual post-injury physical problems are that she has permanent neck and right shoulder pain with stiffness. She is never pain free. She has cervical facet joint disease, which, if not caused by the collision, then it was at least stirred up and made symptomatic by the collision. She has a cervical nerve irritation and a C5/6 nerve injury, which has led to an overactive sympathetic nerve response and the condition of reflex sympathetic dystrophy. Her neck pain radiates down her right side and into her right arm. She describes her arm as not working properly which is not surprising because she has had a nerve injury with incomplete recovery. She holds her left shoulder when she walks. The Plaintiff’s physical restrictions cause her difficulty in grooming herself, attending to her hair, doing up her bra, her buttons and dressing herself. She has problems lifting objects. She has back and right leg problems, including recurrent lower limb spasms. Those spasms were observed to be quite pronounced and were obviously distracting and embarrassing for the Plaintiff. Her daily existence is beset with pain. She has lost a significant amount of weight and her muscles have become deconditioned due to reduced activity. Her sleep is disturbed. She cannot properly perform her household tasks. She has chronic pain syndrome, she suffers psychological distress, and major depression. She has been suicidal at times. Her medical prognosis is poor and she cannot work.

250. I find that the Plaintiff has severe and pronounced emotional and psychological problems. Her self-assessment in which she describes herself as “a mess”, seems to me to be an apt description. I have accepted medical evidence, which has identified her psychological problems as having developed a chronic pain syndrome and a major depression. The effect of expert opinion is that the chronic pain syndrome fuels the depression and therefore, a self-perpetuating cycle has become entrenched. She also has poor concentration. Her estranged husband, her former employer and her aunt each gave evidence of a markedly changed personality and demeanour. I accept their evidence in this regard. I also accept the Plaintiff’s descriptions of her condition.

251. The practical effect of her residual disabilities upon her is that she is socially withdrawn, she is in continual physical pain and she is unable to work.

252. Her treating general practitioner whose evidence I accept, is of the opinion that the Plaintiff is liable to suffer frequent and severe exacerbations of her pain. He is of the opinion that there is unlikely to be any significant improvement in her condition in the foreseeable future. This augurs for an unfortunate and miserable existence for the Plaintiff for the remainder of her life. She has made reasonable efforts to undergo rehabilitation treatment but this has not provided her with significant benefit.

253. I am conscious of the need to avoid an overlap in the award of damages for non-economic loss where damages for loss of earning capacity, both past and future, will be assessed as a separate head of damage. In my assessment the Plaintiff’s circumstances warrant a significant award of damages for non-economic loss. Mr Lidden SC has submitted that the Plaintiff’s damages for non-economic loss should be assessed in the sum of $180,000. In my view that sum represents an inadequate assessment of damages for non-economic loss to compensate her for the permanent conditions from which I have found she suffers and which I have summarised above. Section 134 of the Motor Accidents Compensation Act, 1999 establishes an indexed ceiling for maximum damages for this head of damage but the assessment of such damages must be undertaken according to conventional common law principles of proportion and reasonableness.

254. In striking a balance between the need to ensure the Plaintiff is neither over-compensated nor under-compensated and at the same time being fair to the Defendant I assess the Plaintiff’s damages for non-economic loss at what I consider to be the upper end of the range in the sum of $265,000.

Past loss of earnings

255. In order to assess the Plaintiff’s entitlement to damages for past loss of earning capacity it is necessary to review the Plaintiff’s pre-injury work history, the effect of the injuries on her ability to resume her pre-injury employment and to review the medical evidence as to her fitness to work.

Pre-injury work history

256. The Plaintiff’s work history, of which there was no dispute, appears to be one of virtually continuous employment over the 14 years since she left school. I regard this as an impressive work history in someone of the Plaintiff’s age. She left Fairvale High School following the completion of the School Certificate in Year 10 in 1989 and in 1990 she worked as a check-out operator and packer for a company called Food for Less. Between 1991 and 1993 she worked for EFCO as a process worker. Between 1994 and 1997 she was employed by Harrisons’ Timber and Hardware where her duties included customer service, invoicing and that of a floor hand. Between 1997 and 1999 she was employed by Electro Cables where she worked in customer service. Between 1999 and the time of her injury on 23 November 2003 she was employed by Industrial Wipers in a responsible position as a sales manager with customer service duties that involved significant physical work.

257. It becomes relevant to consider the nature of her pre-injury employment with Industrial Wipers. The principal of that business, Mr Mark Wheatley, who was the Plaintiff’s employer, gave oral evidence. His business was concerned with selling industrial supplies to panel beaters. Mr Wheatley is married to the Plaintiff’s aunt. He described how he had offered the Plaintiff employment with his company in 1999 because he had been given advice to the effect that she would be good at selling his products. He had decided at that time to expand his business into the South-Coast and Wollongong area. He appointed the Plaintiff as sales manager and equipped her with a Toyota Hi Ace van to service his customers and to effect deliveries of his goods. It seems that the Plaintiff was successful in building up his business in that area.

258. Following her injury in the collision on Friday 23 November 2003 the Plaintiff returned to work on Tuesday 27 November 2003 but on light duties. She remained on light duties until 28 July 2004 when her employment was terminated in consultation with her employer’s workers’ compensation insurer. Following this time she has been unemployed but she has continued to receive workers’ compensation benefits.

Effect of the Plaintiff’s injuries on her pre-injury employment duties

259. The Plaintiff said, and I accept, that she is unable to drive for more than 15 to 20 minutes. She also said, and I accept, that she had reduced standing and walking tolerance. I also find that on physical grounds alone, she can no longer perform her pre-injury work duties of driving, loading and unloading her employer’s vehicle. Mr Lidden SC submitted that the Plaintiff was highly motivated and probably drove herself beyond her physical and emotional capacity in the first six months following her injury in an endeavour to carry out her work. I accept that submission as it clearly fits with my impression of the evidence in this case.

260. Mr Wheatley described the Plaintiff’s pre-injury work duties as having a run on the South-Coast, which I infer, meant that she attended customer premises in that area to sell her employer’s products. Mr Wheatley described the Plaintiff’s pre-injury duties as including the handling of 20kg bags of rags, 20litre/kg drums of paint thinners, 16kg cartons containing 4 tins of paint and paint strippers and boxes of masking tape. I infer from this description that the Plaintiff’s pre-injury work, which included periods of driving, was not a light or sedentary job.

261. Mr Wheatley described his post-injury observation of how the Plaintiff struggled to cope with her duties after her injury. He observed the Plaintiff to be in apparent pain all the time. She nevertheless attempted to continue on with her work. Her customers helped her by performing the unloading tasks from her delivery van. Mr Wheatley described how after the Plaintiff’s injury he had undertaken the task of loading her van for her himself. Mr Wheatley subsequently terminated the Plaintiff’s employment. He stated that if she were physically fit again he would employ her. Mr Wheatley’s business had not contracted in size since the Plaintiff was injured but he has not replaced the Plaintiff since she had left his employment and has taken over her duties himself to keep on serving his regular customers.

262. I infer from the fact that the Plaintiff’s employment was terminated and from the fact that she is in receipt of continued workers’ compensation benefits, that no light duty position for which she is fit and capable is available to her in her former employment.

263. Mr Wheatley described the Plaintiff’s pre-injury personality as being very outgoing. He described how after the collision the Plaintiff had become a completely different person in the sense that she was obviously in pain and walked holding her shoulder. He described his observation of the Plaintiff’s inability to lift things after her injury and he described a deterioration in her physical abilities leading up to the termination of her employment. Mr Wheatley’s observation of the Plaintiff following the collision in question was that the Plaintiff appeared to be in a lot of pain. In his opinion, from an emotional perspective, the Plaintiff had undergone a change in her pre-injury state. Mr Wheatley described the Plaintiff as having changed, now being very emotional and beset with pain and anxiety.

264. Mr Scott Lewis, the Plaintiff’s estranged husband also gave evidence corroborative of the evidence given by the Plaintiff. He recalled the Plaintiff having complained of “a niggling lower, sort of, back pain, sort of a muscular type spasmy thing” after her 2001 work related lifting injury. During some four to six months following that injury he used to load her van for her. His evidence did not leave me with the impression that the Plaintiff had any lasting effects from the 2001 work injury when she was injured in the subject collision in 2003. He described her pre-injury personality and activities to indicate that she was very active and involved in outdoor and sporting activities without physical problems. He described how after the collision in question she had complained of pain, she became subject to mood swings, she was snappy and irritable and she could not wash up the dishes properly. Their relationship ended about 8 months after the injury due to arguments that had occurred between them.

Medical opinions on the Plaintiff’s work fitness

265. When Dr Conrad saw the Plaintiff on 29 August 2005 he was of the opinion that she was unfit for “full on” work in her previous employment but thought she might be able to do 12 to 15 hours per week of light administrative or secretarial or similar work with restrictions on lifting weights over five kilograms and no lifting or reaching above shoulder level. He also recommended curtailment of computer work commensurate with her symptoms. When he saw her again on 11 April 2007 he re-iterated his earlier opinion on suggested work restrictions but added his opinion that the last five years of the Plaintiff’s normal working life to age 65 would be curtailed by at least five years. When Dr Conrad saw the Plaintiff again on 24 July 2008 he reiterated these opinions on the Plaintiff’s work restrictions.

266. When Dr Ellis saw the Plaintiff on 29 November 2005 he expressed the opinion that she was unfit for her pre-injury employment and was unfit for most forms of employment for light housework or its equivalent. With two years having passed since her injury he thought there was a degree of permanence in her condition. When Dr Ellis re-examined the Plaintiff on 1 May 2007 he reiterated that she was fit for light and moderate housework or its equivalent.

267. Dr Jones expressed no opinion on the Plaintiff’s work fitness. I have rejected the opinions of Dr Zeman, Dr Cummine and Dr Walden on the issue of the Plaintiff’s opined fitness for work

268. Dr Robertson expressed the opinion that the Plaintiff was clearly unfit for any employment as a result of her physical condition. From the viewpoint of her depression he thought that she was unable to work for more than one or two days at a time, less than 20 hours per fortnight, with reduced pace and erratic attendance. In my view the limited residual earning capacity identified by Dr Robertson and the other doctors here cited is theoretical, impractical and unlikely to be productive of mitigatory earnings.

269. The Plaintiff’s treating general practitioner Dr Sherrell described the Plaintiff as being vulnerable to frequent and severe exacerbations in her baseline chronic pain which renders her unfit to return to her pre-injury duties. I accept Dr Sherrell’s opinion in this regard. In my view, Dr Sherrell’s opinion carries great weight because he has had frequent contact with the Plaintiff and has had the opportunity of reviewing and monitoring her condition over time.

270. I find that since the Plaintiff ceased work on 28 July 2004 she has remained totally unfit for her pre-injury employment or any other employment and will remain so.

Basis of assessment of damages for past loss of earning capacity

271. The Plaintiff has been off work in the period from 28 July 2004 until the commencement of the trial on 22 September 2008. This is a period of 216 weeks. I reduce the period of the claim for loss of earnings by 5 working days to 215 weeks in accordance with the requirements of Section 124 of the Motor Accidents Compensation Act, 1999.

272. The Plaintiff’s 2002 and 2003 income tax returns were admitted into evidence as Exhibit “H” and Exhibit “J”. These returns show that the Plaintiff’s pre-injury gross income in these years was $24,464 and $24,798 respectively. The 2003 figure of $24,798 is the equivalent of $20,606.63 per annum net after allowing tax at the applicable tax scales and the 1.5% Medicare Levy, this is the equivalent of $396.28 per week net. In my view this figure represents an inadequate and an artificially low basis upon which to assess the Plaintiff’s damages for loss of earning capacity from the date she ceased work until the date the trial commenced.

273. It appears from the workers’ compensation payments printout that at the time she ceased work on 28 July 2004 her weekly earnings had increased to $560 per week gross. After allowing for the applicable rates of tax and the 1.5% Medicare Levy this is the equivalent of $457.21 per week net.

274. Mr Lidden SC submits that to assess the Plaintiff’s claim for past loss of earning capacity at these rates over the entire period of over 4 years since she left work would have the effect of under-compensating the Plaintiff because, as he has correctly pointed out, since 2004 average weekly earnings for females have risen by 15% from $892 to $1,023 in the intervening period. Applying a 15% increment to the 23 November 2004 gross weekly rate of $560 per week this is the equivalent of $644 per week gross or $544.98 per week net after allowing for the applicable tax scales and Medicare Levy. The Defendant acknowledges that this latter rate is within the appropriate range for the assessment of past loss of earning capacity.

275. In my view such increases in rates of remuneration from November 2004 to date would have been gradual in their implementation and effect over that period of time so I propose to adopt an average of $457.21 and $544.98 over the period which reveals the figure of $501.09. I round this figure down to $500 per week net over the period claimed. I find that this sum is the appropriate measure by which to compensate the Plaintiff for her past loss of earning capacity. The loss of $500 per week net over 215 weeks is calculated at $107,500.

276. I assess the Plaintiff’s damages for past loss of earning capacity in the sum of $107,500.

Fox -v- Wood

277. The parties have agreed that the Plaintiff has paid tax on the weekly payments she has received from the workers’ compensation insurer in respect of her injuries sustained in the subject collision. It has been agreed that such tax payments amount to $17,030. I assess the Plaintiff’s damages for the Fox -v- Wood component of her claim in the sum of $17,030.

Future loss of earning capacity

278. The Defendant has submitted that the Plaintiff is fit for her pre-injury employment. Mr Lidden SC submitted that effectively, the Plaintiff has no remaining residual earning capacity. I accept the Plaintiff’s submission in this regard. That submission is supported by the opinion of the Plaintiff’s treating general practitioner, Dr Sherrell. His opinion, which I accept, is that the Plaintiff is unfit to return to her pre-injury duties. That submission is also supported by the opinion of Dr Robertson. Based on those opinions I find that the Plaintiff’s unfitness for work will remain chronic and permanent. I find that the Plaintiff’s future earning capacity has been adversely and permanently affected by her injuries and the related disabilities, and has been effectively destroyed. Given the nature and extent of the Plaintiff’s ongoing injury related physical and psychological problems I find that the Plaintiff has no effective residual earning capacity. This should be reflected in damages for loss of earning capacity.

279. It is necessary for me to fix an appropriate figure which, but for her injuries, fairly represents the Plaintiff’s future probable earnings rate.

280. I start from the proposition that the Plaintiff’s pre-injury earnings rate was not truly reflective of her earning capacity. I see no reason why I should not adopt the measure of Average Weekly Earnings of Total Employees for Australia rather than the lower rate of Average Weekly Earnings for Females. I take this view for a number of reasons. Firstly, the Plaintiff’s pre-injury situation seems to me to be outside the parameters that would seem to normally drive the difference between male and female earnings in that the Plaintiff has no children and therefore would have had no reason to work only part-time or intermittently as is often the case with young women upon whom pre-school child rearing responsibilities usually fall, to the detriment of their earning capacity. Secondly, the Plaintiff showed considerable skill, ability and initiative as an employee in her employment with Industrial Wipers in that she established a viable business for her employer in the South Coast region. She was assessed as being a good sales person and had a bright pre-injury personality. I find that these attributes are significant and positive labour market considerations, which in my assessment call for and attract remuneration at the higher rate. I believe that a prospective employer would tend to reward such proven attributes with a higher salary structure, which to my mind justifies using the higher rather than the lower statistical measure of average weekly earnings.

281. As a background yardstick to the assessment of future loss of earning capacity there is no issue that Average Weekly Total Earnings for Total Employees, Australia are $1,260 per week gross or $960 per week net after allowing for the applicable rate of tax and the Medicare Levy.

282. The projection of a loss of $960 per week net at 5% over 31 years to the end of the Plaintiff’s 65th year (x 833.8) is $799,872. After applying a conventional 15% discount for potential adverse vicissitudes this yields $679,891.20.

283. I assess the Plaintiff’s damages for future loss of earning capacity in the sum of $679,891.

Past loss of employer funded superannuation payments

284. Consistent with my finding that during the period of 215 weeks from 28 July 2004 until the trial the Plaintiff lost earnings in the sum of $107,500 net, it is necessary to assess the value of the loss of past employer funded superannuation benefits. The convention is that in the absence of actuarial evidence of that loss, 11% of the net sum awarded for past loss of earnings is taken to represent the loss for this head of damage. Accordingly, 11% of $107,500 is the equivalent of $11,825.

285. I assess the Plaintiff’s damages for the value of past loss of employer funded superannuation benefits at $11,825.

Future loss of employer funded superannuation payments

286. Consistent with my findings in respect of past employer funded superannuation losses net it is necessary to assess the value of the loss to the Plaintiff of future employer funded superannuation benefits. I apply a similar convention of 11% of the net sum awarded for past loss of earnings to represent the loss for this head of damage. Accordingly, 11% of $679,891.20 is the equivalent of $74,788.03.

287. I assess the Plaintiff’s damages for the value of past loss of employer funded superannuation benefits at $74,788.

Future domestic or attendant care

288. The plaintiff makes a claim for the cost of future domestic or attendant care services. In order that such a claim be sustained the Plaintiff must satisfy the requirements of Section 128 of the Motor Accidents Act, 1999. There is no claim for past services although there is evidence that the Plaintiff’s family have provided her with assistance from time to time.

289. The Plaintiff’s estranged husband, Mr Lewis, gave evidence that prior to her injury the Plaintiff was able to participate in the physical work of the household which included painting, gardening and work of that nature. I infer from this evidence that prior to her injury the Plaintiff had no difficulty performing domestic tasks of all kinds without difficulty and without the need for assistance. In contrast, after her injury in the subject collision the Plaintiff stated that she could not perform her housework like she used to. She cannot wash the dishes properly. She said she could not function and just does what she can. She stated that she would be interested in paying for the heavy work to be done. She was referring to vacuuming and repetitive work that involved her neck. There was also evidence that she had difficulty grooming herself, doing her hair, doing up her bra, her buttons and attending to the task of dressing. I accept this evidence and find that this justifies her need for domestic care and assistance.

290. I find that the Plaintiff’s ongoing neck, shoulder, right arm, back and reflex sympathetic dystrophy problems, together with her depression and chronic pain syndrome will in combination preclude her from properly attending to and carrying out her day to day housework, shopping, cooking and attending to ordinary household tasks and home maintenance tasks that she would normally have attended to herself if she were not injured.

291. In his report dated 25 July 2007 Dr Conrad offered the opinion that the Plaintiff was unable to properly attend to her housework and cooking on her own and would need about 6 hours per week of home care assistance. I accept that opinion as being a reasonable and appropriate insight into the Plaintiff’s situation.

292. I infer and therefore find that the tasks, which the Plaintiff described, and the tasks to which Dr Conrad referred would readily occupy at least 6 hours per week. I therefore allow 6 hours per week for future domestic and attendant care assistance on an ongoing week-to-week basis. I am satisfied that uninjured, the Plaintiff would not have needed to have paid for such assistance.

293. The parties have agreed that the applicable rate for the assessment of this head of damage is $35 per hour. When $35 per hour for 6 hours per week, i.e. $210 per week is projected at 5% over 54 years this yields $208,467.

294. I assess the Plaintiff’s damages for future domestic or attendant care at $208,467.

Future treatment

295. The likely cost of the Plaintiff’s reasonable needs for ongoing treatment for her post-injury problems is difficult to estimate on the available evidence. Nevertheless it is necessary for an estimate to be undertaken for the purposes of a damages assessment. The evidence discloses that the Plaintiff has a need for treatment from within five basic treatment modalities, namely general practitioner consultations, consultations with a psychiatrist or psychologist, possible orthopaedic consultations and treatment, physiotherapy and medications of various types. I review these issues in the ensuing paragraphs.

General practitioner consultations

296. The Plaintiff sees her general practitioner on about a monthly basis. I infer that this frequency of consultations is a reasonable pattern upon which to base an assessment that would allow for the future cost of monitoring her ongoing neck, back, arm and leg problems and to check on her chronic pain syndrome. It would also be reasonable to keep an intermittent check on the degree and progress of major depression to determine whether it is appropriate and timely to arrange for periodic assessment and treatment from a psychiatrist or a psychologist. Given that the Plaintiff has had a post-injury history of suicidal thoughts I believe it would be inhumane not to make an allowance for the cost of such consultations in an award of damages in her case. The Plaintiff would also have a recurring need for renewal of her prescriptions for Diazepam, Epilim and any antidepressant medications she may be advised to take from time to time. Exhibit “O” provides up to date evidence of the cost of such consultations at $60 per consultation. I make an allowance of $60 per consultation for 12 consultations per annum, i.e. $720 per annum.

Consultations with a psychiatrist or psychologist

297. I consider that it would be inappropriate and inhumane for the Plaintiff not to have provision made for the opportunity for regular intermittent consultations with either a psychologist or a psychiatrist to assist with the monitoring and management of her chronic pain syndrome and major depression especially since she has had suicidal thoughts in the past. There is also a need for intermittent professional monitoring of the appropriateness or need for prescriptions for psychotropic and neuroleptic drugs. Notwithstanding that the parties have not tendered any direct evidence of the cost of such consultations I infer from the payments made by the workers’ compensation insurer as set out in Exhibit “O” that the cost of a consultation with a psychologist would be of the order of $181 per session. I infer from this that a consultation with psychiatrist would be slightly higher, at the specialist rate of $200 per session. Although no oral evidence was called on this issue and therefore there is no evidence as to a recommended frequency for such consultations, in the presence of a need for such treatment, I must nevertheless attempt quantification of this need. I believe that an allowance for an average regime of one such consultation every two months at an average cost of $190 per session would be an appropriate regime. I therefore allow $1,140 for future psychiatric and / or psychological consultations.

Orthopaedic treatment

298. The evidence concerning the need for orthopaedic review has been left in an incomplete state. At page 6 of his report dated 30 July 2008 Dr Ellis points to the possible need for orthopaedic intervention in the form of arthroscopic surgery for the calcific tendonitis in the shoulder. The cost of such shoulder surgery was said to be attached to Dr Ellis’ report but for some reason best known to the parties this evidence was not included in the tender bundle Exhibit “G”. The indication for such intervention is noted by Dr Ellis to be complicated by the Plaintiff’s depression. In addition to the shoulder condition the Plaintiff has chronic neck pain, back pain and reflex sympathetic dystrophy. It would seem to me to be reasonable to make an allowance for intermittent consultations with an orthopaedic and or a pain specialist for management of this condition as someone in addition to the general practitioner should take responsibility for overseeing these chronic conditions if only because the Plaintiff should not be left without access to such review and assessment of whether further treatment is required. The Plaintiff has elected not to call evidence as to the cost of such reviews. Having regard to the items of treatment expenditure by the workers’ compensation insurer as is evident from Exhibit “O” I allow for the cost of one consultation per annum, which I estimate at $200 per annum.

Physiotherapy treatment

299. Dr Ellis has identified the cost of physiotherapy at $70 per session. There is evidence that the Plaintiff’s muscles have become deconditioned by inactivity. The Plaintiff also experiences chronic neck, shoulder and back pain. Although there is no direct evidence as to a recommendation for long term physiotherapy, given that the Plaintiff’s physical problems are chronic and are associated with chronic pain, I believe it would be reasonable to allow for five physiotherapy sessions per annum to supervise an exercise regime for the Plaintiff directed at palliative management of these issues. I make an allowance for future physiotherapy sessions in the sum of $350 per annum.

Medications

300. The Plaintiff takes Diazepam tablets 3 times per day for her muscle spasms. The medical reports also disclose that she takes Epilim for nerve pain. She also takes antidepressants intermittently. Antidepressants have been prescribed in view of her past suicidality although there are periods when she has ceased taking them for a time because of side effects. In addition, the Plaintiff takes Panadeine Forte and Panadol for pain relief. The Plaintiff did not call or tender any evidence of the cost of such a medication regime but that circumstance does not mean I should not make an allowance and attempt to identify a reasonable amount to cover the likely cost of the Plaintiff’s future medication needs. I believe $75 per month or $900 per annum would be a reasonable and appropriate allowance in the circumstances.

Summary of future treatment costs

301. The foregoing allowances for future treatment costs total $3,310 per annum. I have not included any lump sum allowance for possible future shoulder surgery even though the Plaintiff said she might have shoulder surgery in the future. The evidence indicates that the Plaintiff’s condition is chronic, ongoing and unlikely to improve in the foreseeable future. In these circumstances I believe it is appropriate to allow the sum of $3,310 per annum or $63.65 per week over the Plaintiff’s statistical life expectancy of 54 years at 5% (x 992.7) which yields $63,189.17. I believe it would be inappropriate to significantly discount this sum other than by rounding it down to $60,000, recognising that the calculation is not capable of being, nor is it intended to be, precise.

Past out-of-pocket expenses

302. The majority of the Plaintiff’s out-of-pocket expenses have been paid by the workers’ compensation insurer of the Plaintiff’s employer. The total sum for such payments made by that insurer is $18,834.92. In addition to the out-of-pocket expenses paid by the insurer the Plaintiff has made a claim for some additional amounts totalling $1,515.90. These comprise a Medicare charge for payments made by the Health Insurance Commission (Commonwealth) in the sum of $484.00, a payment by NRMA Insurance Australia Limited in the sum of $50.00 and massage therapy expenses paid for by the Plaintiff totalling $981.90. These additional amounts total $1,515.90. I accept that these additional expenses legitimately form part of the Plaintiff’s reasonable treatment expenses and I allow the additional sum of $1,515.90. The total of these two amounts is $20,350.82. I assess the Plaintiff’s reasonable out-of-pocket expenses in the rounded-off sum of $20,350.

Summary of damages assessment

303. My assessment of the Plaintiff’s damages is summarised as follows:

(a) Non-economic loss

$265,000

(b) Past loss of earnings

$107,500

(c) Fox -v- Wood

$17,030

(d) Future loss of earning capacity

$679,891

(e) Past loss of employer funded superannuation benefits

$11,825

(f) Future loss of employer funded superannuation benefits

$74,788

(g) Future domestic or attendant care

$208,467

(h) Future treatment

$60,000

(i) Past out-of-pocket expenses

$20,350

Total

$1,444,851

Orders

304. I order:

(a) A verdict and judgment be entered for the Plaintiff in the sum of $1,444,851.

(b) The Defendant to pay the Plaintiff’s costs;
(c) The exhibits may be returned.

CITATION:	Lewis v Shimokawa [2008] NSWDC 244
HEARING DATE(S):	22, 23, 24 and 25 September 2008
JUDGMENT DATE:	14 November 2008
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment for the Plaintiff in the sum of $1,444,851. 2. Defendant to pay the Plaintiff’s costs.
CATCHWORDS:	NEGLIGENCE - motor vehicle collision – determination of disputed factual issues. - ALLEGATION OF FRAUD – allegation of fraud not proven – Defendant alleged Plaintiff’s claim was made fraudulently. - DAMAGES – assessment of multiple heads of damage.
LEGISLATION CITED:	Motor Accidents Compensation Act, 1999, s.124, s.128, s.134, s.136
CASES CITED:	Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Briginshaw v Briginshaw (1938) 60 CLR 336 Leotta v Public Transport Commission of NSW (1976) 9 ALR 437 Manley v Alexander [2005] 80 ALJR 413 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Purkess v Crittenden (1965) 114 CLR 164 Watts v Rake (1960) 108 CLR 158
PARTIES:	Rebecca Lewis (Plaintiff) Shizunori Shimokawa (Defendant)
FILE NUMBER(S):	0470 of 2007
COUNSEL:	Mr A Lidden SC and Mr P Khandhar (Plaintiff) Mr A Renshaw (Defendant)
SOLICITORS:	Brydens Law Office (Plaintiff) Moray & Agnew (Defendant)

(a) Non-economic loss	$265,000
(b) Past loss of earnings	$107,500
(c) Fox -v- Wood	$17,030
(d) Future loss of earning capacity	$679,891
(e) Past loss of employer funded superannuation benefits	$11,825
(f) Future loss of employer funded superannuation benefits	$74,788
(g) Future domestic or attendant care	$208,467
(h) Future treatment	$60,000
(i) Past out-of-pocket expenses	$20,350
Total	$1,444,851