Nievas v Mohammed

[2017] NSWDC 168

District Court

New South Wales

Medium Neutral Citation:	Nievas v Mohammed [2017] NSWDC 168
Hearing dates:	1, 2 and 5 June 2017
Date of orders:	29 June 2017
Decision date:	29 June 2017
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	1. Judgment for the plaintiff in the sum of $89,760.12. 2. The defendant to pay the plaintiff’s costs of the proceedings. 3. That the parties have leave to approach the Court within 14 days to vary the order in respect of costs, if necessary. 4. That the Exhibits be returned.
Catchwords:	MOTOR VEHICLE ACCIDENT – CONTRIBUTORY NEGLIGENCE – ASSESSMENT OF DAMAGES
Legislation Cited:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999
Cases Cited:	Sibley v Kais [1967] 118 CLR 424 Stocks v Baldwin (1996) 24 MVR 416 Trompp v Liddle (1941) 41 SR (NSW) 108
Category:	Principal judgment
Parties:	Omar Nievas (Plaintiff) Adam Mohammed (Defendant)
Representation:	Counsel: Ms L Goodchild with Mr B Tzatzagos (Plaintiff) Mr J Guihot (Defendant)   Solicitors: Stephen Cahill, Brydens Lawyers Pty Ltd (Plaintiff) Frances Allen, Moray & Agnew (Defendant)
File Number(s):	2016/297595
Publication restriction:	None

Judgment

Introduction

The plaintiff

The Claim

The accident

Facts not in dispute

Facts in dispute

The evidence on liability

The plaintiff’s evidence

The defendant’s evidence

Demeanour and Reliability

Findings on Liability

Whether the plaintiff was riding his bicycle on the footpath adjacent to Elizabeth Drive or in lane 1

The point at which the plaintiff saw the defendant’s vehicle

The point at which the defendant saw the plaintiff’s bicycle

The plaintiff’s response to the presence of the defendant’s vehicle

The defendant’s response to the presence of the plaintiff’s bicycle

The speed of the defendant’s vehicle prior to impact

The speed of the bicycle prior to impact

The rest position of the plaintiff’s person

The rest position of the plaintiff’s bicycle

Whether the motor fitted to the bicycle was running at the time of the accident

Contributory negligence

Failure to keep a proper lookout

Failure to approach and cross the intersection with caution

Riding a push bike on the footpath in breach of road rule 2014

Moving into the path of the defendant’s vehicle

Failure to take reasonable care for his own safety

Entering the intersection at an excessive speed in the circumstances

Analysis

The Evidence re Quantum

The plaintiff’s evidence

The evidence of Daniella Magro

The plaintiff’s medical reports – Exhibit C

Defendant’s medical reports – Exhibit 1

The plaintiff’s claim and the defendant’s position

Assessment of damages

Reliability of the plaintiff’s evidence re damages

Past economic loss

Past loss of superannuation benefits

Future economic loss

Past out of pocket expenses

Future out of pocket expenses

Past domestic assistance

ORDERS

Judgment

Introduction

1. The plaintiff was injured in an accident involving a motor vehicle which took place on 12 September 2012. He was riding his bicycle to work at the time.

2. The plaintiff claims to have suffered an injury to his neck, right shoulder, right knee and general shock as a consequence of the accident.

3. Breach of duty of care by the defendant was admitted, contributory negligence was alleged against the plaintiff and damages were in issue.

The plaintiff

4. The plaintiff was born in 1991 and was, therefore, 26 years of age at the time of trial. He was 21 years old at the time of the accident.

5. The plaintiff had attended Lurnea High School where he obtained his School Certificate in 2006.

6. After leaving school he was employed by Adecco and worked in various casual employment roles for a period of about three years. In 2009, he commenced employment with Hudson Building Supplies as a store person/forklift driver. He was in that employment at the time of the accident.

7. The plaintiff’s medical history was generally unremarkable save for work accidents in 2007 and 2010. In the earlier accident, he suffered a crush injury to his left index finger and sprained his right ankle. In the latter accident, he strained his back at work.

the Claim

8. By reason of the determination of whole person impairment at the Medical Assessment Service of the Motor Accidents Authority (less than 10%), the plaintiff did not have an entitlement to non-economic loss. His claim comprised the following heads of damage:

1. Past treatment expenses. These were agreed in the sum of $1,910.20. Of that sum, $245.50 had been paid by the insurer for which it was entitled to credit;

2. Future treatment expenses;

3. Past economic loss. This was agreed in the sum of $7,072.00;

4. Past loss of superannuation benefits. This was agreed in the sum of $777.92;

5. Future economic loss. Claimed by way of buffer;

6. Future loss of superannuation benefits;

7. Past domestic assistance. This was claimed for a closed period of 145 weeks following the subject accident.

9. As mentioned above, contributory negligence was also in issue.

the accident

10. The accident occurred at the intersection of Elizabeth Drive and Park Road at Liverpool. The parties’ evidence regarding the events leading to the accident will be described by reference to the evidence, below. Essentially, however, the collision between the defendant’s motor vehicle and the plaintiff’s bicycle occurred as a result of the defendant failing to give way at the intersection. The defendant attempted to turn left out of Park Road onto Elizabeth Drive and, in so doing, collided with the rear of the plaintiff’s bicycle. Prior to the collision, the plaintiff’s bicycle had been travelling either on Elizabeth Drive or on the footpath adjacent to it. This was a disputed fact.

11. The plaintiff’s bike was damaged as shown in the photographic Exhibit A which depicts damage to the rear wheel indicating that as the point of collision.

12. The collision occurred in conditions of relative natural darkness prior to sunrise. Illumination was provided to the area by surrounding artificial light sources together with the headlights of the defendant’s vehicle and lights fitted to the plaintiff’s bicycle. Both parties saw each other prior to the collision occurring.

13. There are a number of facts which are not disputed or are otherwise inarguable on the evidence.

Facts not in dispute

14. The following facts are not disputed:

1. the plaintiff was 21 years of age at the time of the accident;

2. the plaintiff was engaged in labouring work as a store person/forklift driver with Hudson Building Supplies at the time of the accident;

3. the plaintiff was on his way to work when the accident occurred;

4. the plaintiff was riding the bicycle shown in Exhibit A;

5. the bicycle was fitted with a white LED light at the front and a red flashing LED light at the rear;

6. the plaintiff was wearing the clothing shown in Exhibit B;

7. the defendant was driving a vehicle of the type depicted by Exhibit E being a Holden Maloo utility which he had recently purchased;

8. the intersection where the accident occurred is generally depicted in the photograph which is Exhibit D;

9. by reference to Exhibit D, the plaintiff was riding his bicycle away from the photographer, being in a westerly direction;

10. by reference to Exhibit D, the defendant was driving his vehicle in a northerly direction from the side street shown on the left hand side in the photo;

11. as a result of the accident, the plaintiff was thrown from the bicycle;

12. the defendant brought his vehicle to a standstill;

13. the defendant alighted from his vehicle and assisted the plaintiff in putting the plaintiff’s bicycle into the utility tray of the defendant’s vehicle;

14. the defendant drove the plaintiff to his nearby home;

15. the defendant paid the plaintiff $200.00 for the repairs to the plaintiff’s bicycle;

16. as a result of the collision, the plaintiff’s helmet was cracked.

facts in dispute

15. There was some controversy about the following matters:

1. whether the plaintiff was riding his bicycle on the footpath adjacent to Elizabeth Drive or in lane 1;

2. the point at which the plaintiff saw the defendant’s vehicle;

3. the point at which the defendant saw the plaintiff’s bicycle;

4. the plaintiff’s response to the presence of the defendant’s vehicle;

5. the defendant’s response to the presence of the plaintiff’s bicycle;

6. the speed of the defendant’s vehicle prior to impact;

7. the speed of the bicycle prior to impact;

8. the rest position of the plaintiff’s person;

9. the rest position of the plaintiff’s bicycle;

10. whether the motor fitted to the bicycle was running at the time of the accident.

The evidence on liability

16. The only witnesses to the accident who were called to give evidence were the plaintiff and the defendant.

The plaintiff’s evidence

17. At the time of the accident the plaintiff resided at 30 Woodlands Road at Liverpool. On the day of the accident, the plaintiff left home just before 5.30am and rode down Woodlands Road to Marsden Road where he turned left and headed towards Elizabeth Drive. At Elizabeth Drive, the plaintiff then turned left into lane 1 of that roadway. It was at the next intersection (with Park Road) that the accident occurred.

18. The plaintiff was riding a Diamond Back Apex Bicycle being a heavy duty mountain bike with a thick frame. It was red in colour with stickers on it. It had a disc brake and was also fitted with an engine.

19. The plaintiff told the Court that the bike came with standard reflectors. He removed the ones on the handlebars and replaced them with flashing LEDs and the one on the rear with flashing red LEDS.

20. His usual journey was to ride the bike to Liverpool Station before catching the train to Lurnea. He would then disembark and ride his bicycle to Hudson Building Supplies, located in Lurnea. The total journey would take about 45 minutes.

21. He gave evidence about the motor which he fitted to his bicycle. He did that because there were a lot of hills in his area, especially Elizabeth Drive, which he described as “pretty steep” on the way back. On the way to work, he described Elizabeth Drive as being pretty much downhill and flat.

22. He would use the motor assistor after disembarking at Lurnea and riding to work as there were a couple of hills along the way.

23. When asked about the lights fitted to his bicycle on the day of the accident, he told the Court that he was 100% (certain) that they were on. When asked why he was so sure about that, he replied “because I am really paranoid about getting hit by cars, so I made sure I had lights on my bike”.

24. The weather conditions on the morning of the accident were fine. The sun was just rising. The accident occurred around 5.30am on the morning of 12 September 2012. The plaintiff described the conditions as “dark” and it was not raining.

25. The plaintiff was wearing a helmet and also a high visibility jacket with navy shorts, high visibility top, work boots and a blue or black backpack. The backpack contained his lunch, a 600ml bottle of petrol for use in his bike and his wallet.

26. In respect of the motor fitted to the bike, the plaintiff’s clear evidence was that at the relevant time the bike was under pedal power and the motor was not engaged.

27. The plaintiff told the Court that as he was travelling down Elizabeth Drive he was in the left hand lane closest to the kerb. He estimated his distance from the kerb as about a step or two away, a foot. When asked to describe the traffic on Elizabeth Drive at the time, he stated that it was heavy behind him but it was stopped at an intersection so there was no traffic. He repeatedly said that he was riding his bike on the road. Further, he told the Court that he does not ride on the footpath because a lot of cars come out reversing and do not see cyclists. Also, it is illegal to ride on the footpath.

28. In respect of the lighting operating on the bicycle at the time of the collision, the front LEDs were flashing and the rear LEDs were flashing as well.

29. As the plaintiff was riding along Elizabeth Drive in the left hand lane he noticed a Maloo (the defendant’s Holden utility) coming down the left hand side. He said that he heard the sound of it and looked over. The plaintiff then stated:

I heard him decelerating and I continued my pedalling along the way and he accelerated. I heard the exhaust open up. I locked my brakes on my bike to stop and he struck me.

[T29.30]

30. The defendant’s vehicle struck the left hand side of the plaintiff’s bicycle towards the rear, according to the plaintiff’s evidence. This also appears consistent with the objective evidence depicted in the photographs of the bike post-accident.

31. In terms of the point of impact with the vehicle, the plaintiff thought that it was in the area of the right hand side front and bonnet, near the headlight.

32. The plaintiff was then asked to mark Exhibit D. The first marking he was asked to make related to where the defendant’s vehicle was when the plaintiff first saw it. He plainly misunderstood the question as the marking which he made was a red cross in the vicinity of the driveway to the service station immediately prior to the intersection. Nobody suggested that the defendant’s vehicle was ever in that position.

33. The evidence, as adduced from the plaintiff in relation to Exhibit D was confusing. The Court sought to clarify the marking upon Exhibit D at page 23 of the transcript. It was noted and agreed that Exhibit D had, in the end, five crosses marked on it. One cross had a circle around it. Moving from left to right across the photograph, the first cross is where the defendant’s vehicle was when the plaintiff first saw it, that is a little distance north of the intersection between Park Road and Elizabeth Drive.

34. The second cross was seemingly on the grass verge/driveway of the service station. This represented the plaintiff’s first attempt to mark his location when he first saw the defendant. It was clear that that was an error as the plaintiff then further marked the Exhibit with a cross which was circled which identified the location of the plaintiff on the roadway when he first saw the defendant’s vehicle.

35. The fourth cross which was immediately above the circled cross on the photograph is the point identified by the plaintiff where the collision occurred. The fifth cross, to the right of the fourth cross, indicated the plaintiff’s rest position on the road.

36. Then appears a square marking on Exhibit D which was to identify the location of the defendant’s vehicle at rest. The plaintiff identified that as being in the fourth lane of Elizabeth Drive which is a dedicated right hand turn lane which commences in the vicinity of the intersection.

37. After landing on the road, the plaintiff got up and ran to the kerb of Park Road. He said that the defendant then came over and asked him if he was alright.

38. In respect of the collision itself, the plaintiff described the trauma to his body being suffered when the bike smashed to the ground injuring his right side and sliding across the road.

39. He told the Court that after returning to the kerb in the area of Park Road, “everything kicked in”. He referred to pain in his right leg, head and right shoulder. The plaintiff also confirmed that his helmet was cracked as a consequence of the collision.

40. As for the lighting in the area where the accident occurred, the plaintiff described it as “very well lit”. He identified a source of lighting as being the service station on Park Road and Elizabeth Drive. He also referred to a bus stop in the vicinity of the intersection which provided further illumination. There were also street lights but he was unable to be specific as to their location.

41. In a conversation which took place between the parties following the collision, the defendant enquired as to whether the plaintiff was okay and admitted that he did not see the plaintiff. He was asked by the defendant whether he would like him to ring an ambulance and he said no I can’t afford the ambulance and I live just down the road.

42. The defendant offered to give the plaintiff a lift home. The bike and helmet were put in the back of the ute for that purpose.

43. According to the plaintiff, a further conversation took place on the way home in which the defendant again apologised for hitting the plaintiff saying that he did not see him.

44. The defendant offered, and the plaintiff accepted, $200.00 for the repair of his bike.

45. The cross-examination of the plaintiff did not shake his evidence concerning how the accident occurred. He told the Court that he had been travelling to work using this method for a few months following the loss of his licence.

46. He denied that, as he approached the intersection, he was riding on the footpath. He also denied that the petrol-driven motor of the bicycle was running at that time. He denied that when the defendant approached the plaintiff after the accident that the engine of the motor was running.

47. He confirmed that he heard the approach of the defendant’s vehicle before he saw it and was able to identify the model of the vehicle based upon its sound. He did not have an impression based on the sound as to how far back the vehicle was from the intersection.

48. When asked about the time elapsed between hearing and seeing the vehicle, the plaintiff estimated that he pedalled once or twice.

49. He confirmed his evidence-in-chief that he heard the vehicle decelerate and that observation was made prior to the plaintiff seeing the defendant’s vehicle. He also confirmed that he then heard the vehicle accelerate prior to the collision occurring.

50. When the plaintiff first saw the defendant’s vehicle it was 20 or 30 metres from the intersection and at that time the plaintiff was going past the bus shelter. That evidence was further clarified and the plaintiff stated that he was between the poster shown in Exhibit D attached to the bus shelter and the telegraph pole when he first saw the defendant’s vehicle.

51. Further, the plaintiff told the Court that he was about 2 metres away from the defendant’s vehicle when it began to accelerate. When asked whether the vehicle came to a stop, the plaintiff said, “not to a complete stop”. He also said that he saw the red (brake) tail lights of the defendant’s vehicle. Further, he confirmed that the headlights of the defendant’s vehicle were illuminated but he did not see the left hand indicator.

52. It was put to the plaintiff that he simply assumed that the defendant’s vehicle was going to stop and allow him to go past and he agreed.

53. The following exchange then occurred:

Q.    When you were aware that the vehicle had gone from decelerating to accelerating you didn’t alter your speed in any way; did you?

A.   Yes, I did.

Q.   When you became aware that it was accelerating you changed your speed; did you? Is that what you’re saying?

A.   I hit my brakes on my bike.

Q.   You didn’t hit your brakes on your bike until you were across the front of the path of the vehicle, isn’t it?

A.   When it was coming into me, I put my brakes on.

Q.   That’s what I’m suggesting to you, that you didn’t apply your disc brakes on the bike until you had actually entered the intersection and found yourself in front of the vehicle? That’s right; isn’t it?

A.   I don’t understand. If it’s going to hit me I’m going to put the brakes on.

Q.   Let me put it this way. You didn’t seek to apply your brakes, that is the disc brakes on the bike before you had crossed the intersection of Elizabeth Drive and Park Road; do you agree with that?

A.   Yeah.

Q.   If you had chosen to apply your brakes you would have been able to bring your bike to a very quick stop; wouldn’t you?

A.   Yeah, take a couple of metres of distance to slow down, I don’t exactly know exactly how many.

[T56.45-T57.20].

54. The plaintiff was asked about this speed and he was unable to be precise in providing an answer as the bike was not fitted with a speedometer. He estimated his speed at about 15-20 kph “whatever pedalling power is, I don’t know”.

55. The plaintiff was challenged about where he and his bicycle came to rest but he did not depart from his evidence-in-chief that it was in lane 3.

54. There was a further exchange with the plaintiff just prior to the conclusion of his cross-examination. He was asked whether he told staff at Liverpool Hospital that the defendant’s vehicle was travelling between 20-40 kph. He could not recall. The following exchange then occurred:

Q.   If you were aware that a vehicle had gone from decelerating and was accelerating and was travelling at somewhere between 20-40 kph, if you were taking care for your own safety, you should have stopped pedalling to make sure it was safe for you to enter the intersection, that’s right, isn’t it?

A.   No, because I’m on the main road. I had right of way.

Q.   You took the view that because you had a right of way, you were entitled to keep pedalling; is that what you’re telling his Honour?

A.   Considering that there’s three lanes of traffic behind me, yes.

…

Q.   You took the view that because you had the right of way, you could continue to pedal. Is that what you tell his Honour?

A.   Yes. I have the right of way.

Q.   No, but the other part of my question also, that because you had the right of way, you considered that you could simply continue to pedal along towards the intersection and into the intersection; is that what you say?

A.   Yes. By law I have the right of way.

[T90.19-40].

The defendant’s evidence

57. The defendant told the Court that he was travelling alone in his motor vehicle on the way to work at about 5am on 12 September 2012. The headlights of his vehicle were on. He said that he saw the bicycle on his right hand side “coming on the footpath”. At that time, he identified the area of the driveway and the bus shelter as where the plaintiff’s bicycle was when first seen.

58. It was the defendant’s intention to make a left hand turn in order to cut across three lanes into the dedicated right hand turn lane to facilitate a U-turn.

59. When the defendant was asked what happened he gave the following evidence:

Well, I – there is no stop sign there; there is a give way sign, so I just went in, seeing the cars coming in. There was a green light from Elizabeth Drive. There was a few cars coming in, so I slowed down, and maybe I went to stop or maybe not, which I’m not sure at this stage, and I seen the bicycle coming on the footpath on the right-hand side and normally when somebody is driving on the footpath, they normally stop because you’re blocking his way or her way, because it will be blocking the pathway. So basically I was just waiting for the cars to go, and I just moved, I didn’t even drove [sic], it just like a notch, and then I felt something on my car and the next minute there was a bicycle on the left-hand side, on the left lane lying, the person who had a collision with me.

[T101.34-44].

60. Leaving aside the dispute as to where the plaintiff was riding the bicycle, the defendant’s account is curious for a number of reasons. His evidence about whether or not he stopped was ambiguous and could best be interpreted as being to the effect that he could not recall. That interpretation is confirmed, to some extent, by his reference to “just waiting for the cars to go” suggesting that he was waiting and giving way to oncoming traffic.

61. The defendant’s evidence also confirmed that the plaintiff and his bike came to rest on the left hand side of the defendant’s vehicle. Given that the impact was to the rear wheel of the plaintiff’s bicycle, it seems likely that the defendant accelerated at a point when the plaintiff’s bicycle was close to or in front of his car.

62. The defendant gave evidence that the bike and plaintiff came to rest in lane 1 of Elizabeth Drive and that he drove across the three lanes and parked in the right hand turn lane. The defendant went over and picked up the bike. He told the Court that he noticed that it was a motorised bike and that the motor was running.

63. The defendant was cross-examined. He seemed to agree in answer to the first question that he did not remember very much about the accident at the time of giving evidence.

64. He gave evidence about his statement to the police and agreed that it was truthful.

65. The defendant’s evidence was that his vehicle was damaged. There was a scratch in the middle of the right hand side of the front of the vehicle.

66. The defendant confirmed that the plaintiff was limping after the accident and that he drove him home.

67. The defendant told the Court that he was well-acquainted with the area where the accident occurred as he lived nearby. He said that the intersection was fairly well lit at that time in the morning by artificial lighting. When asked whether he stopped at the intersection his response was:

Maybe I did because there was [sic] cars coming on the right hand side.

[T107.49].

68. His answers which followed were a little unclear as to whether or not he in fact stopped but he seemed to say that he did not know.

69. He said that he saw the plaintiff on the bicycle in the vicinity of the bus shelter and driveway and estimated the distance at approximately 5 metres (or something, maybe less).

70. The defendant said that he then moved in the direction of Elizabeth Drive and stated:

It was just a bit of a move and I didn’t realise that he was already in front of me because as I assumed … that if a guy is coming from my side, he’s coming on a pathway, if I am blocking his pathway he will basically stop.

[T108.30].

71. That evidence suggests that the defendant saw the plaintiff before the intersection and next when the bicycle was in front of the car.

72. The following question and answer were given:

Q.   You didn’t think that you should have given way to him?

A.   No. It’s not that. If he came in front of me, of course I would have, but I didn’t assume that he would come there because as my thinking, he was on the footpath. Yes.

[T108.40].

73. That suggests that the defendant had no idea of where the plaintiff was when the defendant moved to the intersection.

74. It was put to the defendant that the plaintiff was not on the footpath but was riding on Elizabeth Drive. The defendant’s response was “so if you say that he is on Elizabeth Drive, then that’s your call, yeah.”

75. The defendant was equally vague about the lights fitted to the bicycle. When asked whether the lights were on, the defendant’s response was “maybe”. In contrast, when asked whether the plaintiff was wearing a high visibility vest, the defendant’s response was “of course”.

76. In further cross-examination of the defendant, the following exchange occurred:

Q.   Before you got to Elizabeth Drive, looking to your right, that’s when you noticed the cyclist; isn’t that right?

A.   Yeah, I assume so.

Q.   The cyclist was on the road, wasn’t he?

A.   As I said, when I seen him, he was on the footpath.

Q.   I suggest to you you’re incorrect, that he was actually on the road at all times.

A.   Okay, maybe he was, yeah.

[T112.7-16].

77. He was asked further questions about whether or not his vehicle stopped, as follows:

Q.   … you’re were coming towards Elizabeth Drive, you were deaccelerating, you’ve said that, you see the cyclist who was on the road on your right and you also see some other cars coming; do you recall that?

A.   Yes. So basically I nearly stop out and say if I was stop stop, but I – know, but it was stopped. Basically it was stopped, yeah.

Q.   You didn’t stop for very long because you were wanting to get across three lanes of traffic to get into the right turning lane to do a U-turn?

A.   Yes, and it’s not really busy at that time.

[T112.21-30].

78. Also at T112 there followed further evidence about whether the vehicle stopped and the defendant stated “it was basically stopped”.

79. Further, in cross-examination the defendant seemed to deny that the engine of the motor was running in respect of the bicycle [T114.29]. The defendant’s evidence continued and, frankly, he was confused as to this question.

80. The defendant was challenged about whether or not the engine fitted to the plaintiff’s bicycle was running at the time he reached the bike after the accident. He told the Court that when he went to pick up the bike after the collision, the motor was running. He said that he could hear the engine and could see that it was a motorised bicycle.

81. The defendant gave a statement to the police on 27 September 2012 which was recorded in the police notebook (Exhibit G). When asked what happened, the defendant stated:

I was coming from Park Road and approached the intersection of Elizabeth Drive, the pushbike person just came in front of my car and I hit him.

82. In a series of follow up questions, the defendant told the police that he knew the intersection well, that the drivers on Elizabeth Drive had the right of way and that he first saw the plaintiff about five metres from the intersection. It is not clear whether that is a reference to the plaintiff’s location or the defendant’s position at the time.

83. The defendant said that in response to seeing the plaintiff, he slowed down and he was travelling “over 5 kpms”.

84. Despite the apparent concessions made in cross-examination, the defendant was not asked to clarify any of his answers in re-examination.

Demeanour and REliability

85. There are at least two areas of clear dispute between the parties. The first is whether or not the plaintiff was riding his bicycle on the footpath or on the roadway. The second is whether the motor fitted to the bike was running at the time of the collision. In resolving those questions, it is necessary to make findings as to the reliability of the respective witnesses.

86. I found the plaintiff to be a very straight forward witness who had a very clear recollection of what occurred on the morning of the accident.

87. In contrast, the defendant, particularly in cross-examination, appeared a little vague as to his recollection and perhaps the best example of that is as to whether or not he stopped his vehicle at the intersection prior to accelerating into the collision. The following extract of the defendant’s evidence highlights his unreliability:

Q.   … you’re coming towards Elizabeth Drive, you’re decelerating, you’ve said that, you’ve seen the cyclist who was on the road on your right and you also see some other cars coming; do you recall that?

A.   Yes. So basically I nearly stopped out and say if I was stopped. But, I – you know, but he was stopped. Basically he was stopped, yeah.

Q.   You didn’t stop for very long because you were wanting to get across three lanes of traffic to get into the right hand turning lane to do a U-turn?

A.   Yes, and it’s not really busy at that time.

Q.   There were cars coming, weren’t there, on your right?

A.   When the cars stopped, then I went then, basically, yes, of course.

Q.   Cars were coming on your right, weren’t there?

A.   That’s why I stopped there.

Q.   You don’t know if you stopped do you?

A.   Well, he was basically stopped.

Q.   You don’t know you stopped?

A.   Yeah. No, maybe. That’s why I said, “maybe”, yeah.

88. The defendant’s answers to that simple question were confusing and inconsistent. His answer to the last question, above, contained both an admission, denial and uncertainty as to the simple question of whether or not he stopped his vehicle at the intersection.

89. As to the circumstances of the accident, including the events leading up to them, I prefer the evidence of the plaintiff. It is perhaps not surprising, given that the plaintiff was injured in the accident, that he would have retained a clearer recollection of what occurred. There was no particular reason for the defendant to have done so. Whilst I have some reservations as to the plaintiff’s reliability when it comes to damages, I accept his account of the accident.

FINDINGS ON LIABILITY

90. Above, I have identified the facts in dispute on the question of liability. In respect of those matters, I make the following observations and findings:

Whether the plaintiff was riding his bicycle on the footpath adjacent to Elizabeth Drive or in lane 1

91. I accept the evidence of the plaintiff as to this matter. Indeed, even the defendant appeared to accept that proposition in cross-examination.

92. The plaintiff’s account is also more consistent with the nature of the impact. Had he been riding on the footpath and crossing Park Road from that point, then one would expect that his bicycle would have collided with the side of the defendant’s vehicle. That is consistent with the defendant’s evidence that he was blocking the plaintiff’s path.

93. In addition, given the lengths the plaintiff went to to ensure his safety (including the helmet, the fluorescent vest and flashing front and rear lights) it would seem more probable than not that the plaintiff was riding on the road.

94. Accordingly, I find that at all relevant times leading up to and including the collision, the plaintiff was riding his bicycle in lane 1 of Elizabeth Drive.

The point at which the plaintiff saw the defendant’s vehicle

95. The plaintiff’s evidence was that when he first saw the defendant’s vehicle it was about 20 or 30 metres from the intersection. This was not the subject of challenge and the defendant’s evidence was unclear as to this matter.

96. To the extent that it is necessary to make a finding as to this fact, I accept the evidence of the plaintiff in that when he first saw the defendant’s vehicle it was about 20 or 30 metres from the intersection and I make that finding.

The point at which the defendant saw the plaintiff’s bicycle

97. The defendant identified the area in the vicinity of the driveway to the service station and the bus shelter as where the plaintiff’s bicycle was when first seen by him. This is generally consistent with the evidence of the plaintiff as to his position when he first saw the defendant.

98. Accordingly, I find that at the time the defendant first saw the plaintiff’s bicycle, it was being ridden in lane 1 of Elizabeth Drive adjacent to the area between the bus stop shelter and the driveway to the service station.

The plaintiff’s response to the presence of the defendant’s vehicle

99. The evidence of the plaintiff was that he saw the defendant’s vehicle, heard it decelerating and also saw the illumination of his rear brake lights. His response to that situation was to continue pedalling his bike in lane 1 of Elizabeth Drive.

100. The plaintiff later heard the defendant’s vehicle accelerating and applied his brakes. He stated that “I locked my brakes on my bike” and he struck me.

101. The defendant did not provide any evidence as to this matter, presumably as it would appear he did not make any observations of the plaintiff between the time when first seen to the time when the impact occurred.

102. Accordingly, I find that the plaintiff did not initially respond to the approach of the defendant’s vehicle to the intersection as all of the indicia of braking and coming to a stop were present. That is, the vehicle was decelerating and its brake lights were illuminated. Further, I find that upon hearing the defendant’s vehicle accelerating, the plaintiff applied the brakes of his bicycle. In my opinion, this is the conduct of a reasonable, prudent cyclist.

The defendant’s response to the presence of the plaintiff’s bicycle

103. According to the plaintiff, the defendant’s response was to slow down as he approached the intersection before accelerating into it.

104. The defendant’s evidence does not contain any reference to what he did in response to seeing the bicycle. His evidence at T101 appears to suggest that he was slowing to give way to cars travelling on Elizabeth Drive but did not take any action in respect of the plaintiff’s bicycle as he saw it on the footpath. His expectation was that the cyclist would normally stop “because you’re blocking his way”.

105. He said that he was waiting for the cars and then just moved.

106. To the extent that such a finding is necessary, I find that the defendant failed to respond in any way to the presence of the plaintiff’s bicycle in lane 1 of Elizabeth Drive.

The speed of the defendant’s vehicle prior to impact

107. The plaintiff did not give any estimate of the defendant’s speed prior to impact. He simply said that he “heard the exhaust open up”.

108. He was cross-examined, however, about a reference in the hospital notes to the effect that the defendant’s vehicle was travelling at between 20 and 40 kph. He rejected the suggestion that he provided that information to hospital staff. For the usual reasons relating to the weight to be given to histories recorded in hospital clinical notes, I approach that evidence with great caution.

109. It seems to me unlikely that the vehicle was travelling at such a high speed as the impact with the bicycle would have been more severe and probably would have resulted in the vehicle running over the plaintiff.

110. Such a speed is also inconsistent with the evidence of the defendant which, when properly analysed, has the defendant’s vehicle slowing either to or close to a stop before moving slowly towards Elizabeth Drive. Again, the defendant’s evidence at T101, whilst a little unclear, seems to suggest that his vehicle slowed and then moved slowly.

111. The more contemporaneous of the defendant’s accounts is not particularly helpful. When asked by the police how fast he was going, his answer was “over 5kms”. Whilst the answer is imprecise and could permit a variety of inferences as to speed, the only logical and reasonable inference to the answer provided to the police is that the defendant was travelling in the vicinity of 5 kpm, consistent with having slowed down at the intersection.

112. Accordingly, in respect of this issue, I find that the defendant’s vehicle was travelling slowly at the time of impact.

The speed of the bicycle prior to impact

113. The only evidence on this topic came from the plaintiff. His answers were imprecise. He said that his bike was not fitted with a speedometer which would have permitted greater precision. He estimated his speed at about 15 – 20 kph and stated “whatever pedalling power is, I don’t know”.

114. It is debatable as to whether or not it is necessary to make a specific finding as to this matter. Whilst excessive speed is alleged against the plaintiff, it is not suggested by the defendant that the plaintiff rode his bike out suddenly into his path. The defendant saw the plaintiff’s bicycle at a time when the defendant could have brought his vehicle to a stop and in fact, may well have done so.

115. For present purposes, I find that the plaintiff was riding his bicycle at a safe speed and not at an excessive speed.

The rest position of the plaintiff’s person

116. There was a dispute between the parties as to where the plaintiff came to rest. The plaintiff said that it was in lane 3 of Elizabeth Drive. The defendant says that he was in lane 1. Whilst the evidence does not permit a confident finding in regards to this question, I prefer the evidence of the plaintiff who generally appeared to have a better recollection of the facts regarding the accident.

117. Accordingly, I find that the plaintiff came to rest in lane 3 of Elizabeth Drive.

The rest position of the plaintiff’s bicycle

118. Whilst technically, this was a matter in dispute between the parties, it, again, is not a matter particularly pertinent to the determination of contributory negligence. Adopting a consistent approach, I prefer the evidence of the plaintiff and accordingly find that the plaintiff’s bicycle was in lane 3.

Whether the motor fitted to the bicycle was running at the time of the accident

119. Whilst this could have had some relevance to the speed of the plaintiff’s bicycle, speed was not a matter which became the subject of controversy in the course of the hearing. The plaintiff says that the motor was not activated and provided details as to the circumstances in which the motor was used. His evidence was that Elizabeth Drive in the vicinity of the accident was uphill but whilst travelling in the opposite direction. It follows that when travelling in the direction which the plaintiff was travelling at the time of the collision, the road was downhill which would have made the use of the motor unnecessary.

119. The defendant stated that he heard the motor running when he picked up the bike after the accident. As the parties are talking about two different points in time, it is not necessary to reject the plaintiff and to accept the defendant. Alternatively, it is not necessary to reject the defendant’s evidence on this question in order to accept the evidence from the plaintiff that, at the point of collision, the motor was not running.

120. It is possible that, by reason of the collision and the engagement between the motor vehicle and the bicycle, the motor was somehow activated so as to cause it to run.

121. Accordingly, I find that, at the time of collision, the motor fitted to the plaintiff’s bicycle was not running.

Contributory negligence

123. Section 138 of the Motor Accidents Compensation Act 1999 permits a finding of contributory negligence against the plaintiff in the circumstances of this case should the evidence establish same.

124. Section 138(1) provides that the common law and enacted law as to contributory negligence apply for an award of damages in respect of a motor accident, except as provided by the section. None of the circumstances referred to in this section are relevant to the events which occurred in the present case.

125. In the event that there is a finding of contributory negligence, s138(3) provides that the damages recoverable in respect of the motor accident are to be reduced by such percentage as a court thinks just and equitable in the circumstances of the case.

126. Part 1A Division 8 of the Civil Liability Act also applies. Section 5R states:

5R Standard Contributory Negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a)   the standard of care required of the person who suffered harm is that of a reasonable person in the position of the plaintiff; and

(b)   the matter is to be determined on the basis of what that person ought to have known at the time.

127. The reference to the principles applicable in determining negligence is a reference to the matters set out earlier in Part 1A of the Act.

128. In the present case, the defendant alleged contributory negligence on six bases:

1. failure to keep a proper lookout;

2. failure to approach and cross the intersection with caution;

3. riding a push bike on the footpath in breach of road rule 2014;

4. moving into the path of the defendant’s vehicle;

5. failure to take reasonable care for his own safety;

6. entering the intersection at an excessive speed in the circumstances.

129. In respect of those matters, I make the following observations and findings:

Failure to keep a proper lookout

130. The evidence established that the plaintiff was keeping a proper lookout. He saw the defendant at a considerable distance from the intersection. He then immediately braked in response to the movement of the defendant’s vehicle. Accordingly, I reject the allegation and find that the plaintiff, at all times, kept a proper lookout.

Failure to approach and cross the intersection with caution

131. Whilst the meaning of this allegation is difficult to discern with precision, my impression of the evidence is that there was nothing about the manner in which the plaintiff approached and crossed the intersection which was other than reasonable in the circumstances. He identified a vehicle approaching the intersection from a reasonable distance back and continued to cross the intersection having been satisfied that the defendant’s vehicle was slowing to a stop. It was only upon hearing the acceleration of the defendant’s vehicle that the need for additional caution was required. At that time, the plaintiff applied the brakes of his bicycle.

132. Accordingly, I reject the allegation that the plaintiff failed to approach and cross the intersection with caution and find that his conduct was entirely reasonable.

Riding a push bike on the footpath in breach of road rule 2014

133. I have already made a finding as to this matter above.

Moving into the path of the defendant’s vehicle

134. This allegation cannot, of itself, be the basis of a finding of contributory negligence. The plaintiff, like every other cyclist or vehicle travelling on Elizabeth Drive, had the right of way. It was incumbent upon the defendant to give way to any vehicles in lane 1 of Elizabeth Drive including the plaintiff’s bicycle.

135. The plaintiff only moved into the path of the defendant’s vehicle when he was satisfied that the vehicle was decelerating so as to give way. His belief that the driver of the vehicle was intending to give way was reasonable.

Failure to take reasonable care for his own safety

136. I reject this allegation as imprecise and meaningless.

Entering the intersection at an excessive speed in the circumstances

137. In view of the findings made above, I also reject this allegation.

Analysis

138. In discussions with counsel for the defendant in addresses, he stated:

… whether he was riding on the footpath or not is not an essential ingredient to the submissions that I made on contributory negligence, it is the failure to approach the intersection in the light of what he knew was occurring at the time.

[T123.27-30]

139. And later:

Your Honour, we say that there has been a failure to take care on behalf of the plaintiff, that is to take care for his own safety, he should not have entered the intersection until it was safe for him to do so.

[T124-125].

140. And later:

… One looks at the actions, knowledge and belief of the plaintiff as he approaches the intersection and what he has told us is that he knew it was moving, the intersection, he knew it was accelerating but he hadn’t stopped but what informed his decision was that he thought he had right of way and assumed it would stop.

[T126.31-36].

141. In my view, that either misstates or over simplifies the evidence. When the sequence of events are properly analysed, it is apparent that the plaintiff saw the defendant’s vehicle approaching, heard the vehicle decelerating, observed the rear tail brake lights of the defendant’s vehicle and that it was not until the plaintiff was close to the position of the either stationary or slow moving vehicle driven by the defendant, that the defendant accelerated into the rear side of the plaintiff’s bicycle.

142. All of the indicia of giving way were present until the last moment at which time the plaintiff could not escape the collision. The defendant, by his actions, had created a reasonable expectation in the mind of the plaintiff that it was safe for the plaintiff to continue. The pattern of damage to the plaintiff’s bicycle (rear tyre) and the defendant’s vehicle (front bumper bar area) establish that the plaintiff was very close to, if not directly in front of, the defendant’s vehicle when accelerated.

143. I find that a reasonable person in the position of the plaintiff would have taken the same action.

144. To hold the plaintiff negligent in the circumstances would offend the social utility of vehicles entering intersections giving way to vehicles which had the right of way. A finding of negligence against the plaintiff, in the circumstances, would effectively mean that any vehicle or bicycle travelling with right of way on a roadway must slow down to a speed where it can instantly stop in the event that an entering vehicle fails to comply with its obligation to give way. Not only would such conduct unduly slow the progress of traffic on a main road but it may give rise to the risk of a collision from the rear in the event that a vehicle, with right of way, unreasonably slows on account of the risk that the vehicle entering the roadway might fail to give way.

145. With s5B of the Civil Liability Act in mind, I find in the circumstances:

1. that the risk was not foreseeable. It was not a risk of which the plaintiff knew or ought to have known. The defendant’s conduct had created the expectation in the plaintiff that he was going to stop in order to give way, as required;

2. given (a), the risk was insignificant;

3. that a reasonable person in the plaintiff’s position would have acted the same way and would not have taken any precautions against the remote possibility that a vehicle slowing (if not stopping) to give way would, suddenly and without notice, accelerate;

4. taking the precaution contended for by the defendant, that is, stopping to give way to the defendant or riding at a slow speed in order to stop immediately in the unlikely event of a slowing vehicle suddenly accelerating, would be unduly burdensome;

5. that, for the reasons in the preceding paragraph, slowing or stopping at every intersection at which a motorist or cyclist had right of way would severely compromise the social utility of driving/riding on public roads.

146. Both parties referred the Court to Sibley v Kais [1967] 118 CLR 424. In that decision, the High Court made the following statement of general principle:

The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to “reasonable care” is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.

147. There is doubt that the defendant failed to discharge his obligations, hence the admission of breach of duty of care.

148. In respect of the plaintiff, I find that he discharged his obligation to take reasonable care in approaching this intersection. He was travelling at a safe speed (less than a motor vehicle ordinarily would), keeping a proper lookout and, in fact, saw the defendant’s vehicle well before the intersection and applied the brakes of his bicycle as soon as it was reasonably practicable to do so. That is, upon becoming aware of the defendant’s change from braking to give way and accelerating so as not to do so.

149. In finding the plaintiff’s conduct reasonable and not warranting a reduction for contributory negligence, I have also had regard to the decisions of Trompp v Liddle (1941) 41 SR (NSW) 108 and Stocks v Baldwin (1996) 24 MVR 416.

150. Counsel for the defendant submitted that contributory negligence ought to be 50% and nothing less than 25%. I consider this submission of no assistance to the Court. To reduce the plaintiff’s damages for contributory negligence in the circumstances which existed here would neither be just nor equitable.

151. I find that the conduct of the plaintiff was both a reasonable and proper response to the traffic conditions which prevailed on the day.

THE EVIDENCE RE QUANTUM

The plaintiff’s evidence

152. Prior to giving evidence, a chronology was prepared on behalf of the plaintiff. It was adopted by the plaintiff and became Exhibit F in the proceedings.

153. After leaving Lurnea High School, the plaintiff undertook a number of casual employments mainly involving labouring and physical work. In 2009, he started at Hudson Building Supplies where he worked as a forklift driver/packer and also a truck driver when needed. He described his work as requiring a lot of bending and squatting. He worked from 7am to 3.30pm, five to six days a week. He told the Court that his intentions, at the time of the accident, were to remain working at Hudson’s as a long time employee.

154. The plaintiff’s social activities prior to the accident, involved football, walking, hiking, going to the beach and swimming. He described himself as a very active person.

155. As noted above, the plaintiff’s medical history was unremarkable. There was an injury at work in 2007 in which he suffered a crushed left index finger and a sprained right ankle. He said that he made a good recovery from that. In 2010, he injured his back at work but again, made a good recovery.

156. Following the accident on 12 September 2012, the plaintiff was off work for three months. He then returned to work with a full duty clearance. He said that he was able to do most of his work but he was assisted by an apprentice. The nature of the plaintiff’s relationship with the apprentice was a little unclear. According to the plaintiff, his employer told him that the apprentice was “just an extra person for the yard”, the plaintiff was required to teach him and he was there to help the plaintiff as his employer could see that he was struggling.

157. He described in some detail the effect that the right knee injury had on him and how he dealt with that pain. He used Panadol, Deep Heat and a knee brace. He was still wearing a knee brace to work at the time of the trial.

158. The plaintiff’s evidence was that he left Hudson’s because of the pain in his right knee. He also said that the wages were low and he was arguing with a new manager who was not happy with the way the plaintiff was doing his work.

159. According to the plaintiff’s evidence and the chronology (Exhibit F), the plaintiff commenced employment with Domino’s Pizza as a part time delivery driver in December 2015. He worked in that employment for 15-20 hours per week until about March 2016. That work was a lot less strenuous on his knee.

160. He described the Domino’s job as involving the preparation of pizzas, cutting pizzas and delivering to customers. The work required of him was a little bit better than what he was doing at Hudson’s. He continued to wear a knee brace whilst at Domino’s.

161. The plaintiff formally resigned from his employment with Hudson Building Supplies on 3 February 2016. He then started looking for work with higher wages and signed up with a job agency called Talent Garden. He was allocated work as a delivery driver/machinery operator for Top Cut where he worked from April to July 2016. Since August 2016, the plaintiff has worked for Horan Steel. He described the work at Horan Steel as involving the use of a crane to operate and pick up sheets of metal and operating a machine to cut the metal into various shapes and sizes. At the date of the hearing, he was working 30 hours a week from Sunday to Thursday.

162. In respect of employment at Horan Steel, he described that it was lighter than both previous jobs and he was assisted by the use of the crane for heavy lifting. Nevertheless, he continued to have problems with his right knee which throbbed towards the end of the day, after standing for eight hours.

163. The plaintiff told the Court that, in his current employment, he commences at 11pm and by about 11.30pm to midnight, his right knee starts to feel a bit of pain from standing and walking. He keeps working but takes Panadol. During authorised breaks, he elevates his right leg. The shifts are eight hours in duration. He gets two breaks. During the breaks, he takes off his knee brace, elevates his leg and applies Deep Heat, resting for 20 minutes to half an hour before going back to work.

164. The plaintiff described the accident as a forceful impact causing the plaintiff and his bicycle to be shunted into lane 3. Within five to 10 minutes of the accident, the pain “kicked in”. He experienced excruciating pain in his right leg, right shoulder and a severe headache.

165. The injury to his right leg was the most severe. He said that he felt like his leg was “going to explode” and it was just throbbing.

166. His shoulder was also painful, he described a very sharp pain like someone had a blade in there twisting it.

167. His headaches were described as severe, with throbbing at the back of his head on the right hand side.

168. After being dropped at home by the defendant, the plaintiff was taken to Liverpool Hospital by his then partner, Amy Wade. That relationship ended about three years after the accident in November 2015 in unfortunate circumstances. The plaintiff said that his then fiancée cheated on him and they broke up and went their separate ways. There were lots of arguments. Ms Wade was not called to give evidence in the plaintiff’s case which, in the circumstances, was quite understandable. I do not draw any inference against the plaintiff by the reason of his failure to call Ms Wade.

169. The plaintiff was currently in a relationship with Daniella Magro who did give evidence. At the time of the hearing, they were staying at her grandmother’s house in Lurnea. I will return to Ms Magro, below.

170. On attending the Emergency Department of the Liverpool Hospital, the staff patched the grazes and cleaned up the wounds. There was an x-ray. He saw a doctor and was sent home with a referral to see his GP.

171. Despite telling the Court that he consulted his GP, Dr Uppal of Casula, the day after the accident, it seems that according to Dr Uppal’s letter dated 8 January 2013 (Exhibit C, page 3) the consultation took place five days after the accident on 17 September. Dr Uppal had access to an ultrasound study of the right knee which revealed a supra patellar bursal effusion 9 mls in volume, small sub-cutaneous haematoma, anterior to the patellar. There was post cruciate ligament thickening, possibly a tear. Dr Uppal referred the plaintiff to Dr Giblin, Orthopaedic Surgeon, who certified him unfit for work from 19 September 2012 to 25 September 2012. Dr Uppal recorded that Dr Giblin suspected a partial tear of the anterior cruciate ligament. He was then given a further two weeks off work until 12 October 2012.

172. In a letter of 8 January 2013, Dr Uppal recorded that the plaintiff had been complaining of right knee pain, stiffness and restriction of movement. He was also complaining of pain and swelling of the left foot, although there was no noted history of injury in that area. There is reference to early degenerative changes in the right knee and three compartments of the knee joint with tiny osteophytic lipping.

173. The letter goes on to record that an MRI scan of the right knee shows proximal PCL (posterior cruciate ligament) tear described as a grade 2 injury with early joint effusion. He was advised physiotherapy and was unfit for work until 30 November 2012.

174. On 19 November 2012, the plaintiff attempted light duties. On 11 December 2012, the plaintiff was still having physiotherapy and showing improvement, nearly a full range of movement without pain. Home exercises in lieu of physiotherapy was suggested.

175. On 12 December 2012, Dr Giblin advised the plaintiff to start normal duties from 13 December 2012.

176. The plaintiff tendered (Exhibit C, page 4) the ultrasound study of the right knee which confirms the impressions referred to by Dr Uppal.

177. In respect of Dr Giblin, Orthopaedic Surgeon, it would appear that the plaintiff consulted him on 3 October 2012, 7 November 2012, 14 November 2012 and 12 December 2012. In the report following the final consultation, Dr Giblin recorded that the plaintiff had been undergoing physiotherapy and “he is much better and has little in the way of discomfort”.

178. The plaintiff was not further seen by Dr Giblin until he did so at the request of his solicitors on 1 July 2013 for the purposes of a medico-legal report.

179. In his evidence, the plaintiff described returning to work. That occurred about three months after the accident. At that time, his shoulder was still stiff but it resolved over time. The headaches improved and he told the Court that he gets headaches every now and then. In relation to the neck stiffness he suffered after the accident, that continued for about two weeks before slowly resolving. He said that there is still a bit of pain which is minimal but it has effectively resolved.

180. As mentioned above, the plaintiff’s main problem has been his right knee.

181. He gave evidence about how that affected his capacity to undertake domestic activities. He told the Court that before the accident he was living with Ms Wade in a three bedroom house with stairs at the front with big yards at the front and back. In terms of domestic arrangements, he told the Court that they did everything half/half inside the home. Outside the home, he was solely responsible for the maintenance including lawn mowing and whipper snipping. He also undertook repairs to the cars and would wash the cars.

152. The plaintiff was asked to estimate the number of hours he would spend performing outside domestic activities. In what commenced as a rough estimate and became a guess, the plaintiff thought that he spent three to four hours per fortnight.

153. In relation to the internal domestic duties, the plaintiff estimated that he would undertake one to two hours per day doing things such as cooking, cleaning, sweeping the floors and shopping.

154. Things, apparently, changed after the accident. The plaintiff’s ex-partner took responsibility for cleaning the inside of the house and one of his friends, Emanuel Josea, used to assist him doing the lawns. He did that for about three to four months after the accident. Mr Josea was not called to give evidence.

155. In relation to the inside of the house, the plaintiff estimated that Ms Wade would have spent an hour or two a day doing things which, but for the accident, he would have done.

156. Things improved after returning to work. He thought about four or five months after the accident, he began doing more things in and around the house. He says that by the time he was back at work he was able to do things around the home that he used to do before the accident such as cleaning the bathroom, scrubbing the toilet, shower and getting on his knees. In apparent non sequitur, he was then asked why he could not clean the bathroom and he said the pain would be very aggravating [T44.1-6].

157. Apart from the bathroom cleaning, he was also unable to sweep or mop as his balance was affected due to the right knee injury.

158. The plaintiff also gave evidence that his sleeping had been affected by the accident. He suffered broken sleeps from pain with flashbacks to the accident.

159. He was asked to describe how his right knee affects him at the time of hearing. He stated:

My right knee is in pain every day. If I walk for more than 20 minutes my leg starts throbbing. I have pain on the right hand side and the back. If I am walking on an uneven surface my leg feels like it’s going to dislocate, which it has, it has popped out and popped back in.

[T44.47-50].

190. When asked how he was emotionally, the plaintiff immediately responded that he was depressed. But when asked how that manifested itself he was unable to provide an answer [T46.5]. Later, he returned to that topic and stated:

I don’t talk to my partner. I’m very by myself. I just keep everything inside, I don’t talk to anybody. I don’t eat as much. I go through eating one meal a day all day.

[T46.20-22].

191. He told the Court that he experienced those symptoms every couple of months for two to three weeks at a time but that he was not getting any treatment for it. When asked why he had not sought medication for depression, the plaintiff told the Court that he did not like taking drugs or getting addicted to any type of drug. Notwithstanding that answer, in relation to his right knee condition, he told the Court that he takes Paracetamol and Endone.

192. The plaintiff said that his right knee condition improved over the first six to 12 months post-accident and then has not changed since.

193. He said that he was reluctant to ride a bike as he develops anxiety and pictures the car when it hit him.

194. The plaintiff told the Court that he does not socialise with friends as he cannot physically do so because of his right knee. He said that when he gets home from work, his right knee is throbbing. He sits down, elevates his leg, has a shower, applies Deep Heat and then rests for the remainder of the night.

195. In terms of his future aspirations for employment, the plaintiff stated:

My goal is to try and find a light, physical job in my body physically damaged. I’ve got to try and find an easier way to earn an income and using my body to do so. My goal in life is to set myself up ahead in something.

[T50.24-27].

196. In cross-examination, the plaintiff was challenged as to the severity of the impact. It was suggested to him that he came to rest in lane 1, not lane 3 indicating a less forceful impact. He did not accept that.

197. In a broad statement, counsel for the defendant put to the plaintiff that he had greatly exaggerated the effects of the accident. Predictably, the plaintiff denied that.

198. It was pointed out to the plaintiff that when he went to Liverpool Hospital he did not make any complaint about a headache. The plaintiff said that he told them that he had a headache at the back of his head and did not accept that that is something about which he did not complain. There was similar cross-examination in relation to the complaint of dizziness.

199. The plaintiff denied that there had been substantial improvement in his right leg condition between 12 September and 12 December 2012 when he saw Dr Giblin for the last time for treatment. In view of Dr Giblin’s report of that date, I find the plaintiff’s answer difficult to accept. He then engaged in argument with counsel for the defendant about whether or not he experienced a substantial improvement. He disagreed with that proposition.

200. In relation to the physiotherapist, Mr Williams, it was put to the plaintiff that by the time the plaintiff saw Mr Williams on 10 December 2012, he had improved so much that his right knee had near full range of movement without pain. The plaintiff denied that.

201. Contradicting the plaintiff’s sworn evidence, I note a letter from Gregory Williams, Physiotherapist, to Matthew Giblin dated 10 December 2012 in which the following statement appears:

Omar, has made good improvement with physiotherapy and now has near full ROM without pain.

202. In respect of the conflict between the plaintiff’s oral evidence and the contemporaneous medical report by Mr Williams, I accept the latter.

203. In further cross-examination, the plaintiff was asked a number of questions about the terms of his return to work. He denied having any recollection as to that matter. He did, however, say that he did not return to doing his usual duties with Hudson Building Supplies, despite the fact that Dr Uppal, GP, certified him as being fit to do normal duties.

204. Counsel for the defendant put to the plaintiff that by the end of four months after the accident, the plaintiff was more than capable of doing any item of housework or any activity around the yard that he did before the accident. The plaintiff denied that proposition.

205. It was put to the plaintiff that in the calendar year 2013, the plaintiff did not see Dr Uppal, GP, “for anything to do with the accident”. The plaintiff could not recall. It was further suggested that the only doctors he consulted in 2013 were those relating to his claim for damages. He could not recall.

206. It was put to the plaintiff that he did his normal duties throughout the whole of 2013. His response “not normal duties, yeah” was confusing. It was then put that in the calendar year 2014 he continued doing his usual duties at work. The plaintiff denied that.

207. There was a subsequent accident involving a dirt bike. That incident occurred in March 2014 when the plaintiff fell from a dirt bike. He agreed that he told his solicitors that he aggravated his right knee but could not recall whether he twisted his right knee when he came off the bike. The accident occurred when he hit a pole.

208. This evidence as to social engagement and recreational activities is at odds with the plaintiff’s evidence in chief that he was severely socially restricted following the accident.

209. The plaintiff was then cross-examined about his work as a pizza delivery person. As mentioned above, his evidence-in-chief and the chronology which he adopted, indicated that he was employed by Domino’s as a part time delivery driver from December 2015 to April 2016. It was put to the plaintiff in cross-examination that he in fact started delivering pizzas in 2013. The plaintiff did not recall. It was specifically put to the plaintiff [T67.10] that he commenced working as a delivery driver for a firm making pizzas at the end of 2013 and again resumed delivering pizzas for another organisation towards the end of 2015. When asked whether that assisted with his recollection, the plaintiff said, no.

210. The plaintiff did however agree with the proposition that whenever it was, he was working two jobs. He was working at Hudson Building Supplies and also doing additional hours working as a pizza delivery person. He was working longer hours after the accident than he was prior to the accident by doing an additional 15 – 20 hours per week delivering pizzas.

211. The source of the material regarding working in the pizza business in 2013 came from a report by Assessor David Johnson (MAS) following an assessment of the plaintiff on 9 December 2013 (Exhibit 1, page 41). In that report, it is unequivocally stated that the plaintiff was currently doing a second job with Domino’s Pizzas and often gets pain in the right knee with prolonged standing. The Assessor also recorded the plaintiff was working 38 hours per week with Hudson’s and also doing a second job with Domino’s Pizzas working 8 to 9 hours per week.

212. In any event, the plaintiff agreed that he resigned from Hudson Building Supplies on 27 January 2016 taking effect 3 February 2016. The reasons for resignation appear under the heading “Termination Details” in the Termination Advice Form which is Exhibit 3.

213. The two reasons for resignation nominated were “Personal/Family” reasons and “Leaving the area”.

214. Despite the fact that the plaintiff was experiencing personal problems around the time of his resignation in January 2016 and had planned to move to his father’s place at Minto, the plaintiff denied that the reasons given were in fact true. He told the Court that it was a false document [T68.47].

215. There is a direct and irreconcilable conflict between the plaintiff’s evidence under oath for resigning Hudson’s and the reasons identified in the Termination Advice Form. As the latter document is a business record and as the reasons coincide with some great precision with the events taking place in the plaintiff’s life, at the time of the resignation, I unhesitatingly prefer the Termination Advice Form over the plaintiff’s oral evidence. Further, in my opinion, the plaintiff’s untruthful evidence about the reason for resigning Hudson Building Supplies was plainly directed to improving his claim for damages.

216. Similarly, the plaintiff’s untruthful evidence about not working for Domino’s in 2013 was plainly intended to exaggerate his condition as at that time.

217. In respect of the other two jobs which the plaintiff had following the accident, it is clear and the plaintiff agreed, that the reason he ceased work with Top Cut was that there was a shortage of work [T70.48].

218. He then commenced work with Horan Steel on or about 15 August 2016 and as at the date of the hearing remained in that employment. The plaintiff was cross-examined about the medical examination which he underwent for the purpose of securing employment with Horan Steel. He agreed with the proposition that he was certified by the medical practitioner as being physically fit for duties. Notwithstanding that admission, the plaintiff then went on to deny that the doctor did not consider that there be any restrictions imposed on the plaintiff’s ability to work.

219. In answer to a question from the bench, the plaintiff stated that since December 2012, no doctor had imposed any restrictions on his work duties.

220. This answer again is inconsistent with the preceding answers [at T71]. Once again, it is a clear example of the plaintiff attempting to overstate his condition in order to improve his claim.

221. In terms of domestic assistance, when pressed in cross-examination, the plaintiff agreed that he may have mowed the lawns on occasions with crutches and very slowly. He was directly challenged about whether Emanuel helped him with the lawns. It was put to him that he was making that up because it would help his case. He denied that. Emanuel was not called and the plaintiff’s failure to do so gives rise to a compelling inference that the evidence of Emanuel would not have assisted the plaintiff’s case on that question.

222. When cross-examined about the histories given to a number of doctors concerning mowing the lawn and the like, the plaintiff claimed to have no recollection.

223. The plaintiff was then cross-examined about cooking meals and he said that his partner “done [sic] all the cooking” and when asked whether he was able to cook meals at least five months after the accident, his response was “no, I don’t cook”. [T75.43-48].

224. Overall, the cross-examination of the plaintiff on the question of damages casts considerable doubt over his reliability on that topic. Whilst the Court might accept that there are certain matters about which he may have no recollection, there were other aspects of the cross-examination which raised topics about which the plaintiff ought to have had a clear recollection had he been telling the truth. The most obvious example of that is working for Domino’s in 2013, just 12 months after the accident.

The evidence of Daniella Magro

225. According to the chronology (Exhibit F) the plaintiff commenced a relationship with Ms Magro in January 2016. I understand that they moved in together about six months later, living at the plaintiff’s father’s house. At the time of the hearing, Ms Magro said they were living between places, namely, her grandmother’s house and the plaintiff’s father’s house.

226. Ms Magro worked at a company called xxxx from 8.30am to 4.30pm. At the time of the hearing, she had been working in that position for about two months.

227. Ms Magro told the Court that she had observed the plaintiff after work and said that he is very drained, usually limping. She recalled seeing aggravation in his face and could tell that he was in a lot of pain. She told the Court that the plaintiff would come home, elevate his leg and apply Deep Heat.

228. Ms Magro was asked about any assistance that the plaintiff provides around the house. She replied:

Duties we share, but I would mainly take all the heavy stuff, like the mopping, the sweeping, and stuff like that, but he’ll do, like, the washing, like, wash the dishes, wash the clothes, but I won’t see him – I won’t get him on the knees in the bathroom to scrub the floors or anything like that.

[T94.20-24].

229. In relation to the plaintiff’s mood, Ms Magro had known the plaintiff for about 15 years and prior to the accident he was very happy. Entering the relationship, she noticed that he was depressed and anti-social. Ms Magro was cross-examined. When asked about the granny flat at Minto, she told the Court that the plaintiff had his brother living with him and they helped each other out with house chores. The flat consisted of two rooms, namely, the lounge room and the bedroom.

230. Ms Magro said that the plaintiff would wash dishes and do the clothes and his brother would take care of the floors and major stuff.

231. When pressed, and to some extent contrary to the previous evidence, Ms Magro said that she had seen the plaintiff sweep the floors. It became clear that the current arrangement was that she would do the sweeping while the plaintiff would do the washing of the dishes and the clothing.

232. After Ms Magro moved into the granny flat, she recalled that the plaintiff would wash dishes and do the laundry and help with the cooking. She also said that he would pick up dust using a dust pan.

233. Ms Magro presented as a reliable witness who made appropriate concessions. Her evidence was of limited use on the question of domestic assistance as the observations were outside of the closed period claimed by the plaintiff and there is no claim for the future. In respect of the effects of working full time had on the plaintiff, she provided necessary corroboration.

The plaintiff’s medical reports – Exhibit C

234. I do not intend to refer to the treating doctors’ reports as they have been considered above in the context of the treatment received by the plaintiff.

235. Although Dr Giblin was the plaintiff’s treating orthopaedic surgeon, he was retained by the plaintiff’s solicitors to examine and report on 1 July 2013 (Exhibit C, page 9). In respect of the plaintiff’s work performance as at July 2013, Dr Giblin took the following history:

Presently he drives a forklift and basically all he does is jump on and off the forklift. By the end of the day he does find it quite sore, but doesn’t have any particular problems when he is actually working the forklift. He is careful, particularly with ground that is uneven as he finds that if he treads on uneven ground occasionally the knee is unstable.

236. This statement is at odds with the evidence given by the plaintiff that he was required to take regular breaks throughout the course of the working day in order to apply Deep Heat, take Panadol and adjust his knee brace. In terms of domestic activities, Dr Giblin recorded in July 2014:

Presently he lives in a house with his partner and a friend. He still mows the lawn, but does it in a piecemeal fashion; he gets help from his friends. He is just wary about any household work. He avoids doing anything that entails squatting and he is careful when he climbs ladders.

237. Again, the information provided by the plaintiff to Dr Giblin about the mowing of the lawns is, to some extent, inconsistent with his sworn evidence in Court.

238. Dr Giblin confirmed his earlier opinion that the plaintiff suffered a partial rupture of his posterior cruciate ligament. Dr Giblin did not consider that surgical intervention would be required in the immediate future. He thought that the plaintiff may require physiotherapy once a year for four to six treatments at a time for the next five years. Further, he thought that the plaintiff may require consultations with his general practitioner on a needs be basis only, maybe twice a year. This is in fact at odds with the plaintiff’s actual attendance upon his GP since the accident.

239. Significantly, Dr Giblin expressed the opinion unequivocally that domestic assistance was not required. That opinion was given by the doctor who treated the plaintiff during the most acute phase of his injury and, at a time, when according to the plaintiff, domestic assistance was being provided. Dr Giblin’s opinion on this question is given significant weight.

240. Dr Conrad prepared five reports. He first saw the plaintiff on the 15 April 2013, about seven months after the accident. The plaintiff told Dr Conrad that most of his symptoms had settled down with the exception of his right knee. He described having a lot of pain in his right knee and difficulty doing a lot of standing, walking, going up and down stairs, squatting and kneeling. His right knee was aggravated by work. After reviewing the radiology, Dr Conrad expressed the view that the plaintiff’s main injury was to the posterior cruciate ligament. He thought that there was a “possibility” that the plaintiff may require an arthroscopy in the future at a cost of $6,000.00 and six weeks off work. In the meantime, Dr Conrad thought that the plaintiff should have physiotherapy, as needed.

241. Dr Conrad considered the plaintiff to be well-motivated and continued working as a forklift driver and picker and packer which he is able to do providing that he was able to sit or stand at will. Dr Conrad noted that the plaintiff was living with his fiancée and that should she not be able to help with the heavier housework, cooking and cleaning, he might need about six hours per week of Home Care assistance.

242. The plaintiff was next seen by Dr Conrad on 27 August 2014. Dr Conrad considered that the plaintiff’s condition was basically unchanged. Dr Conrad’s opinion was, similarly, unchanged save for expressing an opinion that the plaintiff may require conservative treatment at a cost of about $2,000.00 per year and may benefit from a structured rehabilitation programme at work. I do not accept Dr Conrad’s opinion on either of those questions. The need for cost of treatment is exaggerated and the need for rehabilitation is at odds with the plaintiff successfully securing a number of jobs without such assistance.

237. On 16 December 2015, the plaintiff was again seen by Dr Conrad. At this time, according to MAS Assessor Johnson, the plaintiff was also working for Domino’s Pizzas. The plaintiff failed to tell Dr Conrad about that additional employment. Dr Conrad noted that the plaintiff’s condition was basically unchanged.

238. In terms of domestic assistance, Dr Conrad noted that the plaintiff had split up with his fiancée recently and lives in shared accommodation with friends. “He does his housework with some difficulty and slowly”.

239. Dr Conrad’s recommendations were as per his previous report.

240. The plaintiff was next seen by Dr Conrad on 6 February 2017. In relation to work, the plaintiff told Dr Conrad he resigned employment with Hudson Building Supplies in February 2016 due to his knee condition. I refer to my comments above in respect of that matter. I do not accept that the plaintiff left that employment for medical reasons. Further, Dr Conrad reported that in April 2016, the plaintiff started work for Top Cut Industries doing light delivery work on a casual basis, but doing full time hours. He was terminated after just three months due to unavailability of work.

241. Dr Conrad noted the plaintiff started work again in August or September 2016 with Horan Steel as a crane driver. He noted the following:

He (the plaintiff) says that most of the work is sedentary with minimal lifting involved and he was presently handling this work, but at the end of the day he feels stiffness in his right knee.

248. In terms of the domestic arrangements, Dr Conrad noted that in February 2017, the plaintiff lived with his father in a granny flat and “does minimal housework”. His father helped him with heavier gardening maintenance.

249. Dr Conrad’s recommendations in relation to treatment and the like remain unchanged.

250. The plaintiff was sent to see yet another orthopaedic surgeon at the request of his solicitors on 19 April 2013. At the time, he saw Dr Bodel (Exhibit C, page 32). This consultation took place within days of the examination by Dr Conrad on the 15 April 2013. No reason was provided for retaining more than one expert in the same speciality. The plaintiff gave Dr Bodel a history that the plaintiff had returned to work and was back at normal duties. Although the plaintiff was coping reasonably well, the knee did swell and became painful at the end of a working day.

251. In relation to activities of daily living, Dr Bodel stated:

He is able to manage household maintenance and cleaning activities although he has to take care with the kneeling and squatting.

[Exhibit C, page 3].

252. As for the past, Dr Bodel said that the plaintiff did require domestic assistance for household maintenance and cleaning activities for a period of about four months at the rate of three hours per week but he does not require domestic assistance at this time (that is April 2013). This level of care provided on a gratuitous basis had not entitled the plaintiff to damages for same.

253. Based on the examination performed by Dr Bodel, he expressed the opinion that the plaintiff has no significant instability, and therefore, there was no indication of surgery although an arthroscopy may be required in the future.

254. Dr Bodel saw the plaintiff again on 23 January 2017. The plaintiff told Dr Bodel that he had continued to work with Hudson’s until February when he resigned. He told Dr Bodel that he did some delivery work delivering meat and then later delivering pizzas.

255. The plaintiff told Dr Bodel that he was taking Nurofen and occasional Panadeine Forte. He was also exercising undertaking a gymnasium based programme. Again, Dr Bodel stated that the plaintiff was able to manage household maintenance and cleaning activities as long as he is careful with kneeling, squatting and climbing.

256. In relation to his current employment, Dr Bodel took a history that the plaintiff was coping reasonably well but takes care to minimise kneeling, squatting and climbing activities.

257. In respect of past need for domestic assistance, Dr Bodel’s opinion was that the plaintiff required assistance for the first eight to 12 months after injury but that there is no ongoing requirement for domestic assistance. He did not anticipate surgery. Dr Bodel did not provide any reason for the change in his opinion regarding domestic assistance in the initial period.

258. Finally, in the plaintiff’s case there are four medical reports from Dr Thomas Oldtree Clark, Psychiatrist.

259. The first report followed a consultation with the plaintiff on 26 June 2013. Dr Clark expressed the opinion that the plaintiff gave a typical history of many symptoms of post-traumatic stress disorder with flashbacks, sudden awakenings in sweats, such that he has to change the sheets. This led to a diagnosis of chronic post-traumatic stress disorder.

260. When asked to comment about the plaintiff’s capacity and fitness for work, Dr Clark simply replied, “he has returned to work”. When asked about the need for past and future domestic assistance, Dr Clark replied, “he does little in the house but copes independently”.

261. Dr Clark recommended psychiatric treatment and medication. In view of the plaintiff’s evidence as to his attitude to such treatment, it is unlikely that it will be sought.

262. Dr Clark next saw the plaintiff on 17 September 2014. Dr Clark took a history that the plaintiff had returned to full time work with Hudson Building Supplies and was not on restricted duties. In relation to domestic activities, Dr Clark noted that the plaintiff was becoming increasingly dependent upon his partner who does the domestic chores and cooks, whereas before the accident he was more involved in sharing those tasks.

263. Dr Clark repeated his diagnosis of PTSD.

264. The next report from Dr Clark is dated 14 November 2016 following an examination of the plaintiff on 2 November 2016 (Exhibit C, page 69). The plaintiff updated Dr Clark by telling him that he had separated from his fiancée and was now living with his father in his father’s granny flat. He told Dr Clark that he was now on anti-depressants. That appears to be the only reference to that fact. Dr Clark, this time, diagnosed a persistent depressive disorder and again recommended psychiatric care.

265. Following that examination on 2 November 2016, a second report dated 14 November 2016 was generated setting out Dr Clark’s view about the plaintiff’s whole person impairment. In respect of social and recreational activities, Dr Clark placed weight on the fact that the plaintiff had withdrawn to his father’s house where he is now cared for. That is not consistent with the sworn evidence and I note that the plaintiff’s father was not called to give evidence. In that regard, I draw an inference adverse to the plaintiff, to the effect that the evidence of his father would not have assisted his case on the question of the need for domestic assistance.

266. In relation to social functioning, the plaintiff achieved a high score. The comments made by Dr Clark were that the plaintiff’s relationship had ended and he had no prospects of a further relationship. He said this gave rise to a moderate impairment on psychiatric grounds. That is simply inconsistent with the known fact that the plaintiff commenced seeing Ms Magro in January 2016.

267. Generally, I find that Dr Clark’s assessment of the plaintiff to be exaggerated, not consistent with known facts and contrary to the plaintiff’s presentation as a witness. I do not accept Dr Clark’s opinion regarding diagnosis or the need for treatment.

Defendant’s medical reports – Exhibit 1

268. The plaintiff was medically examined by Dr Margaret Gibson, Occupational Specialist, at the request of the defendant on 31 July 2013. At the time of the assessment, the plaintiff was living with his partner and one of his friends together with the friend’s partner and son in a three bedroom, one bathroom house at Liverpool. The plaintiff told Dr Gibson that if he walks long distances his right knee becomes uncomfortable and he has to rest his leg and apply Deep Heat cream once he gets home. The plaintiff told Dr Gibson that “he said they all take turns to do the chores around the house, whereas he used to do all the chores prior to the accident”. The latter part of that statement is completely at odds with the plaintiff’s sworn evidence and is irreconcilable with same. The only possible explanation for the plaintiff making that statement to Dr Gibson is an attempt to enlarge his claim for damages for domestic assistance.

269. Notwithstanding the plaintiff’s statement, Dr Gibson expressed the following opinion in relation to domestic assistance:

Mr Nievas was describing some restriction in home based chores. Based upon the nature of the injury, he may have required assistance with heavy chores such as gardening or even lawn mowing for a period of about three months after the accident. I am not of the view any domestic assistance is now necessary.

[Exhibit 1, page 10].

270. I accept this opinion of Dr Gibson.

271. On 3 April 2017, the plaintiff was seen by Dr Harvey-Sutton, Consultant Occupational Physician, at the request of the defendant.

272. Dr Harvey-Sutton recorded the following history from the plaintiff:

As far as household activities are concerned, prior to the accident, he was living with his former partner at xx xx Road, xx. His partner mainly did the inside activities and he did the outside activities, including lawn mowing and gardening. He had a 10,000 litre above-ground swimming pool which he subsequently gave away and also gave away the fish tanks.

He indicated he could not do the lawn mowing or assist with the general cleaning or servicing of the motor vehicle or washing of the car for about three months after the accident. It usually took him about four hours to mow the lawn and do the gardening about once a fortnight in summer and once every three weeks in winter. It usually took him about an hour to clean the swimming pool and wash his car, both activities he did about once a week. He cleaned out the fish tanks about once every two weeks and that took about 45 minutes to an hour. He took about 10 minutes each day on average to feed the pets.

…

He indicated that once he returned to work, he was able to do the tasks in and about the house, including the lawn mowing, general cleaning, feeding the pets, servicing his motor vehicle and washing the car. He took breaks and did those activities in a piecemeal fashion.

[Exhibit 1, page 18-19].

273. Again, these statements made by the plaintiff to Dr Harvey-Sutton cannot sit with his sworn evidence before the Court. It seems the most likely explanation for the discrepancy is that the plaintiff, giving evidence under oath, either exaggerated or lied about his physical capacity so as to improve his claim.

274. Dr Harvey-Sutton expressed the opinion that the plaintiff’s present complaints relate to his right knee and there are no significant disabilities. She noted that there may be some pain after a heavy day’s work. This is consistent with Ms Magro’s observations. The plaintiff told her that he can kneel and squat and can climb but does so carefully. Dr Harvey-Sutton expressed the opinion that the plaintiff will continue to be fit for his employment.

275. Dr Graham Vickery is a psychiatrist, who saw the plaintiff on 24 April 2017 at the request of the defendant (Exhibit 1, page 28). Dr Vickery expressed the opinion that there was no diagnosable psychiatric disorder or injury. Further, there has not been any restriction in his fitness for work from a psychological perspective and that no treatment was required for any such condition. Furthermore, Dr Vickery stated that there was no need for any domestic assistance in relation to any psychological injury. I accept Dr Vickery’s opinion.

276. The defendant then tendered reports from two MAS Assessors (Assessor David Johnson and Assessor Tania Rogers dated 12 December 2013 and 22 June 2015, respectively).

277. The report by Assessor Johnson related to whether or not the plaintiff’s right knee condition gave rise to a permanent impairment of greater than 10%. He found that it did not. Accordingly, the plaintiff has no entitlement to non-economic loss in these proceedings.

278. I approached the reports by Assessors Johnson and Rogers with caution as they were not compellable witnesses. Accordingly, plaintiff’s counsel was not given the opportunity of cross-examining either expert which she may have chosen to do otherwise. I note, however, that none of the other three experts in the defendant’s case were required for cross-examination either.

279. Other than confirming the plaintiff’s lack of entitlement to non-economic loss, the only other useful purpose the report of Assessor Johnson serves, is the history about working for Domino’s Pizzas in 2013, contrary to the sworn evidence of the plaintiff.

280. Assessor Rogers saw the plaintiff on 2 June 2015. This was a special assessment directed to assessing the reasonableness of the claim for domestic assistance. At page 2 of her report (Exhibit 1, page 52), the following statement appears:

The following treatments, namely:

● Whether the injuries, being neck, lower back, right shoulder, right knee and left leg, give rise to the need for domestic assistance for tasks including lawn mowing, general cleaning, feeding pets, cleaning fish tanks, cleaning swimming pool, servicing motor vehicle and washing car from the date of MAS Assessment for the remainder of the claimant’s life and whether this assistance is causally related to the injuries sustained in the subject accident.

DO NOT RELATE TO THE INJURIES caused by the motor accident.

281. The second question for determination by Assessor Rogers was whether zero hours to 16 hours per week of domestic assistance relating to the matters referred to above for the remainder of the plaintiff’s life were reasonable and necessary in relation to the injuries sustained in the subject accident. The Assessor found that they were not reasonable and necessary in the circumstances. This resulted in the plaintiff’s claim being put forward on the basis of a closed period only.

282. Again, I approach the opinion and reasoning of Assessor Rogers with caution given her non-compellability as a witness in Court. I rely upon the findings set out above in relation to the matters raised for special assessment. In addition, I rely upon the reports made to her by the plaintiff, in particular under the heading “Domestic Work” on page 9 of her report (Exhibit 1, page 59) in which it is made clear that following the subject accident, the plaintiff returned to most of the domestic work which he performed prior to the accident.

The plaintiff’s claim and the defendant’s position

283. In the plaintiff’s Outline of Closing Submissions, counsel for the plaintiff summarised the medical evidence and then sought damages, as follows:

(a)	Past economic loss (agreed)	$7,072.00
(b)	Past loss of superannuation (agreed)	$777.92
(c)	Future economic loss (buffer)	$200,000.00
(d)	Future loss of superannuation benefits – calculated at 13% of the buffer	$30,657.00
(e)	Past out of pocket expenses (agreed) of that amount $245.50 had been paid by insurer	$1,910.20
(f)	Future out of pocket expenses	$50,000.00
(g)	Past domestic assistance – this is based on 10 hrs pw at $28.00 ph for a closed period of 145 wks (12 September 2012)	$40,600.00
Total of plaintiff’s claim	$331,017.12

284. Plainly, the areas disputed by the defendant are future economic loss, future loss of superannuation, future out of pocket expenses and past domestic assistance.

285. There was agreement between the parties as to the plaintiff’s earnings. It is agreed that the plaintiff’s average net weekly earnings were as follows, for the corresponding financial periods:

(a)	30.06.10	$504.00 npw
(b)	30.06.11	$688.00 npw
(c)	30.06.12	$778.00 npw
(d)	30.06.13 (year of accident)	$725.00 npw
(e)	30.06.14	$817.00 npw
(f)	30.06.15	$808.00 npw

286. The earning records were not available beyond 30 June 2015 but it was further agreed between the parties that for the period 25 April 2016 – 24 July 2016, the plaintiff earned $958.00 net per week. Further, it was agreed that from 29 November 2016 to 9 May 2017, the plaintiff’s earnings were $903.00 net per week.

287. The defendant, relied upon the fact that the plaintiff was earning more now than he was prior to the accident. Although the evidence is not determinative of whether the plaintiff has suffered, or will suffer economic loss, it is a relevant consideration.

288. Returning to the defendant’s position, in respect of those matters in dispute, the defendant submits that no allowance should be made. Accordingly, the defendant’s submission on damages may be summarised as follows:

(a)	Past economic loss (agreed)	$7,072.00
(b)	Past loss of superannuation (agreed)	$777.92
(c)	Future economic loss (buffer)	Nil
(d)	Future loss of superannuation benefits	Nil
(e)	Past out of pocket expenses (agreed)	$1,910.20
(f)	Future out of pocket expenses	Nil
(g)	Past domestic assistance	Nil
Total of defendant’s assessment	$9,760.12

assessment of damages

289. With the parameters set, I turn to an assessment of damages, based on the evidence.

Reliability of the plaintiff’s evidence re damages

290. There were a number of aspects of the plaintiff’s evidence which were unreliable. These include, but are not limited to, the following:

1. his condition when last assessed by Mr Williams, Physiotherapist, on 10 December 2012 (Report, Exhibit 2);

2. his condition when last assessed by Dr Giblin on 12 December 2012 (Exhibit C, page 8);

3. the absence of any relevant medical treatment after 2012;

4. the fact that the plaintiff had not been certified unfit or limited in his duties for work by any medical practitioner after December 2012;

5. the reason for resigning from Hudson Building Supplies;

6. his capacity to perform work post-accident;

7. his capacity to undertake domestic activities following the accident, as recorded in the various contemporaneous medico-legal reports obtained by both parties and the MAS reports;

8. the date upon which the plaintiff commenced working two jobs (2013, not 2015);

9. a number of the histories provided to doctors were at odds with his evidence before the Court.

291. The plaintiff’s evidence on these topics are the cause for some pause before accepting him as a reliable and truthful witness. Whilst it is true that some considerable time has elapsed since the accident occurred, most of these matters are subjects about which the plaintiff ought to have had a good recall. In any event, the plaintiff’s evidence in 2017 is, in a number of material respects, inconsistent with what he said to various treatment providers and other doctors in the years immediately following the accident. As a matter of logic, and given the inconsistencies of those reports, the earlier statements are more likely to be reflective of the fact than the oral evidence.

292. For this reason, I have approached the oral evidence of the plaintiff on damages with some caution.

293. I accept the plaintiff’s account of the injuries he suffered in the accident. I also find that but for his right knee injury the plaintiff made a good recovery from the other injuries complained about.

294. I find that the plaintiff is left with an ongoing disability in his right knee as a result of the posterior cruciate ligamentous injury. I find that this has caused the plaintiff difficulty in performing his work duties without rest or assistance and also performing some household tasks.

295. I accept that the preponderance of medical evidence (including the defendant’s experts) that the plaintiff has some limitation in his physical capacity to work. In this regard, I refer to the summary of medical negligence, above.

296. I find that the plaintiff’s disability will probably be productive of economic loss in the future. This is particularly so in the event that he lost his employment and was forced to compete on the open labour market with other applicants without disabilities. This disadvantage will increase as he ages.

291. I do not, however, accept that the plaintiff would require the level of medical treatment in the future which is contended for in the plaintiff’s case. He may, from time to time, benefit from physiotherapy, analgesia and other conservative forms of treatment.

292. By reference to the heads of damage by which the plaintiff makes his claim, I assess damages as follows:

Past economic loss

299. This is agreed between the parties in the sum of $7,072.00.

Past loss of superannuation benefits

300. This has been agreed between the parties in the sum of $777.92.

Future economic loss

301. The plaintiff seeks damages by way of buffer in the sum of $200,000.00. In my opinion, that amount is excessive and grossly over-states the probable loss which the plaintiff will suffer as a result of his injuries. I note that as early as December 2012 (within three months of the accident) the plaintiff’s treating medical professionals were of the opinion that he was fit to return to his previous employment at Hudson Building Supplies on a full time basis without any restrictions. I also note the plaintiff’s physiotherapist found the plaintiff to have near full range of movement without pain as early as 10 December 2012.

302. In making an assessment for future economic loss, I also have regard to the fact that the plaintiff’s earnings have increased since the accident. Whilst part of this may be due to the change in his employment and also CPI increases, it demonstrates a pattern of earnings which is on the rise.

303. Nevertheless, I have also had careful regard to the plaintiff’s own evidence about the effect of work upon him and that of Ms Magro. Whatever might be said about the plaintiff’s reliability, Ms Magro presented as an honest and reliable witness. She has been in a relationship with the plaintiff since January 2016 and they have lived together for almost a year. She gave what I considered to be honest evidence about her own observations of the plaintiff upon his returning from work. That is, it is obvious to her that he is in pain and limping. She described the practice of the plaintiff coming home, elevating his leg and applying Deep Heat. Plainly, this suggests that work aggravates his physical condition.

304. A further matter to which I have regard in assessing the plaintiff’s claim for future economic loss is his relatively young age. He still has, on his case, 43 years left in the work force.

305. Accordingly, I find:

1. that the plaintiff continues to suffer from a disability caused by the accident;

2. that is, the ongoing effects of the injury to his right knee;

3. that working aggravates that condition;

4. that at the end of the day after work, the plaintiff suffers from aggravation of his condition which includes pain, swelling and restriction of movement;

5. that this condition impairs and will continue to impair his capacity for work;

6. that the diminished capacity for work will be productive of a financial loss.

306. In my opinion, an allowance of $75,000.00 for future economic loss is reasonable in the circumstances. In making that assessment, I have had regard to the fact that the plaintiff has worked more since the accident than he did prior and his earnings have gradually increased. Nevertheless, I am satisfied, by reference to the medical evidence, that the plaintiff’s limitations will affect his capacity to work, limit his opportunities for employment and be productive of a financial loss. I find that the most likely circumstances but for the accident, is that the plaintiff would have continued this like employment until retirement.

307. This assessment is inclusive of any loss of superannuation benefits.

Past out of pocket expenses

308. These have been agreed between the parties in the sum of $1,910.20.

Future out of pocket expenses

309. In my opinion, the amount claimed ($50,000.00) greatly exceeds that which might reasonably be incurred by the plaintiff over the course of his lifetime in respect of the injury suffered in the accident. He has passed through the most acute period of his injury incurring under $2,000.00 in relation to treatment expenses. There is no indication that the need for treatment will escalate in the future. The need for surgery is no more than a possibility which ought not sound in damages.

310. I do accept, however, that the plaintiff will continue to incur expenses in respect of physiotherapy from time to time, analgesia, anti-inflammatory cream such as Deep Heat and the need for a knee brace.

311. In the absence of specific evidence as to the costs of these items, I propose to allow a buffer of $5,000.00 in respect of future treatment expenses.

Past domestic assistance

312. As a consequence of a MAS Special Assessment, the plaintiff’s entitlement to domestic assistance ceased as at 22 June 2015. The question for determination is whether the plaintiff reasonably required assistance due to his injuries in the period prior to that, that is from 12 September 2012.

313. The assistance is claimed on a gratuitous basis and the plaintiff must satisfy the dual threshold provided under s141B(3) of the Motor Accidents Compensation Act. That is, that services must have been required for at least six hours per week and for a period of at least six consecutive months.

314. In assessing the plaintiff’s entitlement to damages in this regard, I have had careful regard to all of the medical evidence, including the statements made by the plaintiff to medical examiners at various times. Again, I will not repeat the summary of the evidence which appears above. It is apparent, however, that even on the plaintiff’s own case, the need for care in the past has been minimal, save perhaps for the initial period when he was off work.

315. I assess the plaintiff’s claim for past domestic assistance on the basis that he required assistance of one hour a day for a period not exceeding four months. Whilst this satisfies the weekly threshold for entitlement, the plaintiff has failed to satisfy the six month threshold.

316. Accordingly, no allowance is made in respect of past domestic assistance or care. I find that there was no reasonable need for assistance thereafter (s15(2)(a)).

ORDERS

1. Judgment for the plaintiff in the sum of $89,760.12.

2. The defendant to pay the plaintiff’s costs of the proceedings.

3. That the parties have leave to approach the Court within 14 days to vary the order in respect of costs, if necessary.

4. That the Exhibits be returned.

**********

Decision last updated: 10 July 2017