Rachel Beyer v Lillian Jean Gehue

[2015] NSWDC 62

District Court

New South Wales

Medium Neutral Citation:	Rachel Beyer v Lillian Jean Gehue [2015] NSWDC 62
Hearing dates:	25, 27 March 2015
Date of orders:	01 May 2015
Decision date:	01 May 2015
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Verdict and judgment for the Plaintiff
Catchwords:	TORTS – negligence – personal injury – motor vehicle accident – driver liability – pedestrian accident – blameless accident – contributory negligence – damages
Legislation Cited:	Civil Liability Act 2002 (NSW) s 5B, 5R, 15 Evidence Act 1995 (NSW) s 136 Motor Accidents Compensation Act 1999 (NSW) ss 83, 138, 141B
Cases Cited:	Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 Gordon v Troung [2014] NSWCA 97 Hill v Forrester (2010) 79 NSWLR 470 Joslyn v Berryman [2003] HCA 34 Nominal Defendant v Ross [2014] NSWCA 212 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 T and X Company Pty Ltd v Chivas [2014] NSWCA 235 Town of Port Headland v Hodder (2012) 43 WAR 383 Warth v Lafsky [2014] NSWCA 94 Watt v Bretag (1982) 56 ALJR 760 Zheng v Wallace (2015) 69 MVR 301
Category:	Principal judgment
Parties:	Rachel Beyer Lillian Jean Gehue
Representation:	Counsel: Mr M Cleary (Plaintiff) Mr R Stitt QC and Mr B Kelleher (Defendant) Solicitors: Schreuder Partners Compensation Lawyers (Plaintiff) Holman Webb (Defendant)
File Number(s):	2013/238641
Publication restriction:	Nil

Judgment

INTRODUCTION

1. The Plaintiff, Rachel Beyer, brings proceedings pursuant to an Amended Statement of Claim, filed 2 April 2014, seeking damages pursuant to the Motor Accidents Compensation Act 1999 (NSW) [1] in respect of an accident which occurred on 6 May 2011.

   1. hereinafter ‘1999 Act’

2. The short facts are that on the day of the accident the Plaintiff was placing some used clothing in the rear of a four wheel drive motor vehicle which was parked opposite her residence, adjacent to the northern curb of Turner Street, Balmain.

3. Whilst at her vehicle the Plaintiff saw her daughter’s pet dog, a Chihuahua, on the road near where she was loading her vehicle. The Plaintiff then moved onto the roadway and said that she held her right hand in the direction of the Defendant. The Defendant, who was driving a motor vehicle at the time, saw the animal on the road but did not see the Plaintiff and collided with her. The Plaintiff alleges that the collision occurred due to the negligence of the Defendant or, in the alternative, alleges that the accident was a “blameless accident” within the terms of Part 1.2, Division 1 of the 1999 Act. The Defendant does not admit the circumstances of the collision and denies negligence and blameless accident. In the alternative, the Defendant alleges contributory negligence. As a central issue of dispute was the visibility at the time of the accident I will consider this issue first.

LIABILITY

Lighting Conditions

4. The Plaintiff stated that the collision occurred just after 5pm or just before. [2] She claimed that the day was still bright. The streetlights were not on and she noticed this as soon as she walked out of her house as she checked whether she ought to turn on the outside lighting to the house at that time. [3]

   2. T 26.4

   3. T 26.10

5. In support of the Plaintiff’s evidence, her father, Mr Peter Harvey, was called. He stated that, on 6 May 2011, he was on the Pacific Highway approaching Roseville and heading towards the city when he received a call from his granddaughter on a mobile phone, during which it was revealed to him that (the Plaintiff) was injured in a motor vehicle accident. He was asked as to the light conditions at that time of day when he received that phone call and he stated at T 61.4 as follows:-

“Well it was approaching twilight but it wasn’t. I was on the Pacific Highway approaching Roseville and I remember driving through, heading towards the city. I remember driving through the township, turning onto I think it is Boundary St at the bottom of the hill and we went through, going round and round and taking the first turn to the left and stopping so that I could talk to Rachel’s daughter, Claudia.” [4]

4. T 61.40

6. When Mr Harvey was further asked about the light conditions at that time of day, he stated:-

“Well I could see, I didn’t need headlights or anything like that.” [5]

5. T 61.50

7. Mr Harvey was not challenged.

8. The Defendant gave evidence that, on the occasion in question, she was driving a black Citroen C3. She had dropped off her son at soccer practice which started at 5pm at Callan Park, Rozelle. She stated that she had come back through Turner Street after 5pm and closer to 6pm. She drove along Darling Street, turned up King Street and into Turner Street. She recalled the lighting conditions as being “quite dark” and she had headlights on.

9. When the Defendant was asked about the lighting in cross-examination, the following exchange takes place:-

“Q. Is it possible that your memory of the light conditions, that is quite dark, is influenced by the light, say at the time that the ambulance arrived, or that the police arrived; because it was getting darker all the time, wasn't it?

A. Yeah, it was by the time the police arrived, it was pitch black. Turner Street's a very dark little street anyway, and that particular spot of the street was very dark.” [6]

6. T 68.22

10. The Defendant’s counsel contended that the response should be viewed as one to the second part of the question, not the first. The Plaintiff disputes this. The Defendant was not re-examined on this issue.

11. It was then put to the Defendant that the fact that her headlights were on may have had nothing to do with the prevailing light conditions. The Defendant acknowledged this.

12. Then, in cross-examination, the Defendant was asked about the lighting and stated that she is notoriously late for everything and did not recall arriving at soccer practice exactly at 5pm or a bit before. She had a strong memory of being in Turner Street at about “6 O’clock.” [7] When it was put to her that a phone call had been recorded by NSW Ambulance at 5:21pm in relation to the accident, the Defendant said that she would be prepared to accept that the accident probably happened earlier than that. [8] It was then put to her that the fact that the headlights were on had nothing to do with the prevailing light conditions. She acknowledged this, however, she stated that:-

“That could be, yes, I'd have to say that, but it was getting dark, and so I would've had my headlights on anyway. It's a driving habit, I put them on in tunnels too.” [9]

7. T 67.39

8. T 67.45

9. T 68.10

13. Then the following exchange takes place:-

“Q. Is it possible that your memory of the light conditions, that is quite dark, is influenced by the light, say at the time that the ambulance arrived, or that the police arrived; because it was getting darker all the time, wasn't it?

A. Yeah, it was by the time the police arrived, it was pitch black. Turner Street's a very dark little street anyway, and that particular spot of the street was very dark.

Q. When you say that particular spot was very dark; darker than other spots in Balmain, is it? Or what do you mean?

A. Well, there's no street light there, so it's darker there. At the end of the street, it's lighter, but that part of Turner Street's dark, and it's got a little bit of a dog leg in it.” [10]

10. T 68.22-.33

14. The Police report records an accident time of between 5:30-5:51pm. [11] The Ambulance report, recorded a booking time for the ambulance of 17:21 and an attendance time at the scene of 17:38. [12]

    11. Exhibit A, p 252

    12. Exhibit A, p 29

15. In my view, various responses given by the Defendant seem to suggest that her account of the timing of the accident was more of a reconstruction based on other events, in particular, relating to soccer practice and the attendance of the police and ambulance. She stated that she had a strong memory about 6pm, [13] however, subsequently accepted that the accident probably happened earlier than that. [14]

    13. T 67.40

    14. T 67.45

16. Whatever the lighting conditions were at the time, it is clear that they were sufficient for the Defendant to see the animal. Her description was as follows:-

“…Like I couldn’t see what kind of animal it was but I could see that it was an animal clearly.” [15]

15. T 66.20

17. Thereafter the following exchange takes place:-

“Q. I think the question that I asked you was how far was your car away from that running animal when you saw it in the brightest part of your headlight? I know it's difficult but doing the best you can?

A. I really don't know. I really don't know but it was quite – I mean it wasn't so close to the car that I couldn't see it. It was actually sort of in that mid distance where you can see quite well..” [16]

16. T 67.5-.10

18. I do not regard the illumination of the Defendant’s headlights as determinative of the lighting conditions. The Defendant’s evidence in relation to viewing the Plaintiff’s dog at different locations of her headlights was confusing. [17] According to her evidence, it was nonetheless clear that she was able to observe the dog going under the gate of the Plaintiff’s house, despite the fact that her vehicle was travelling on the left hand carriageway of Turner Street at the time. [18]

    17. See T 66.25-67.4

    18. T 64.33

19. In the circumstances, I accept the Plaintiff’s submission that the accident occurred prior to 5:21pm and closer to 5pm which is when the Defendant had to drop off her son at Callan Park. Based on the evidence of the Plaintiff and Mr Harvey, I accept that the accident occurred during daylight conditions. In making this finding, I have had no regard to the contents of Exhibit A p 128, being the report of Dr Peckham, where it is noted as part of the history that the Plaintiff’s next door neighbour heard the impact of the accident, came out to assist the Plaintiff and immediately called the ambulance. The report mentions that the ambulance did not arrive and the neighbour called the ambulance again at 5:21pm. This narrative was not pursued by either party in evidence. The report itself was tendered subject to qualification pursuant to s 136 of the Evidence Act 1995. [19]

    19. hereinafter the ‘1995 Act’. See also T 47.40-48.10.

What was the Plaintiff wearing?

20. The Plaintiff stated that she believed she was wearing a pair of black pants and “I don’t know, I think it was a flower top” together with closed in shoes at the time of accident. [20] In relation to the top, her description, at T 14.24, was:-

“It was just a colourful top. I don’t know, it had flowers on it.”

20. T 14.15-.25

21. And at T 14.27:-

“It wasn’t dark.”

22. Further, at T 14.34:-

“It was light.”

23. In cross examination the Plaintiff was tested as to her recollection of what she was wearing, stating that she was definitely wearing black because she remembered that it was cut-off. She remembered her shoes because they were thrown off and remembered being brightly clothed on her upper body. She was not sure what she had told her solicitors regarding her dress because “possibly her memory had failed her.” [21] However, she conceded that she could have been wearing a grey cardigan, although she was not sure. [22]

    21. T 42.28

    22. T 43.34

24. The question of what the Plaintiff was wearing was not canvassed with the Defendant.

25. Overall the dispute was as to whether the Plaintiff was wearing a coloured or white top. I do not consider that any differences would detract from her overall visibility in the light conditions that prevailed, even if her clothes included a grey cardigan and a pink scarf as asserted by the Defendant in cross examination. [23]

    23. T 41.31-43.35

The Accident - The Plaintiff’s Evidence

26. The Plaintiff gave evidence of a small dog that belonged to her daughter and she believed that it was secure within her premises. Accordingly, she exited the house and left the front door ajar.

27. The Plaintiff walked out of her house in Turner Street and crossed the road to her vehicle which was parked across the road, slightly diagonal and to the right. She said that she looked left and right, crossed the road and opened her vehicle. Her evidence was that other vehicles were parked along the curb because she stated that it was that time of night when people were coming home from work and so the street was full. [24] She stated that she pressed the remote button, unlocked the vehicle, and was putting the clothing in the boot of the vehicle [25] . The vehicle was a four wheel drive and the back door had hinges and a swing door which opened to the right. There was a car behind her but there was enough room to open the door. [26] She started to open the door and put the clothing inside, when she claimed that she saw the dog “directly next to me.” She estimated that it was about one metre away, “maybe a metre and a half.” [27]

    24. T 11.40

    25. T 11.46

    26. T 12.15

    27. T 12.35

28. The Plaintiff described the location of the dog in the following terms:-

“No, she was right – she was on the road, but I mean the car was on the road too. She was right there – how can I explain it? She was just there, next to my car before – if you were right next to the car before you stepped on the road. If that makes any sense. No, no. I don’t know how to explain it.” [28]

28. T 12.7

29. The Plaintiff stated that she next looked up the street to her right and saw a black car up the road [29] . She then fumbled with the things in her hands. She described the events as follows:-

“I fumbled it basically. Part of it fell on the ground, part of it fell in the boot. I moved around and glanced, as I was moving around, and my reaction was right, obviously, as I moved, the puppy moved. She – because I called to her – and she started to head back to the other side of the road, towards the other side. So I stepped out onto the road, I didn’t have time to run, I stepped out onto the road and as I was stepping out I put my hand, right hand, up.” [30]

29. T 12.50-13.5

30. T 13.14

30. The Plaintiff stated that her hand was in the direction which the vehicle was oncoming. [31] With her left hand she bent down to try to grab the dog. She then said that when she glanced back up and her first reaction was “oh my god, she is not even going to brake.” [32]

    31. T 13.25

    32. T 13.28

31. The photograph Exhibit B showed the general appearance of Turner Street in 2011. The Plaintiff stated that she made some markings. Next to a point marked number “1” is a smaller car adjacent to a garage with a white door. The Plaintiff said that when she first saw the Defendant’s car on Turner Street, before being struck by it, the car was in the spot that is the point marked “1.” The photograph also had a point marked number “2” which is where the Plaintiff claimed that she saw the Defendant’s vehicle whilst standing at the back of her car. The Plaintiff claimed that her daughter and herself had measured the distance between the two points as 45 metres.

32. In cross examination the Plaintiff claimed that, after seeing the Defendant some 45 metres away, the next time she saw the Defendant was just before the car hit her. [33] She stated that she stepped out behind her boot and probably took four large steps. [34] She said that she did not have room to get off a speed. At the time she reached towards the dog with her left hand and she raised her right hand to stop the Defendant’s car, she was stationary and facing towards the other side of the road as she was turning towards the car. [35]

    33. T 23.26

    34. T 23.35

    35. T 23.40-.45

33. The Plaintiff asserted that as she first viewed the Defendant’s car, her view was over the top of the car parked behind her, which was a blue sedan. [36]

    36. T 25.37-.43

34. The point that she first observed the Defendant’s vehicle, the Plaintiff claimed that she had already seen the dog and had moved onto the roadway straight away. She said that she had made no observation of the Defendant speeding but confirmed that all of the streets in Balmain were within a 40km/hr zone, describing Turner Street as a residential street. [37]

    37. T 26.30-.50

35. The Plaintiff stated that as she opened the boot of the car she could not fully open it because there was a car parked behind her and it was too close. She stated that there was a metre from where the latch fully closed to where it opened.

36. The Plaintiff reiterated in cross-examination that the dog was standing next to her, almost about a metre away. The Plaintiff was cross-examined about her observations when she first saw the dog stop, in particular, she stated that she believed that she told her solicitors that the dog was coming towards her when she first saw it. When it was put to her that it was not accurate to say that when she first saw the dog it was one metre away at her side, the Plaintiff stated:-

“I cannot be, I cannot be one hundred per cent sure if I had seen the dog running towards me or if the dog had just come. I remember looking down and seeing her.” [38]

…

“I can remember looking down and seeing the dog. If I said to my solicitor I have seen the dog running towards me, I mean obviously she did run and she did cross the road, kind of my first feeling was as I looked down, I went, she was there, she was there.” [39]

38. T 45.2

39. T 45.11

37. The Plaintiff stated that she did not know why her solicitor had written in a letter, dated 3 June 2013, a version of events describing the dog as running towards her. She maintained that when she first saw the dog it was not running, stating:-

“I am trying to say that I am very clear in this court today that the dog, when I first saw the dog, that it was there and as I said before that as I saw the – I – if I have said to my solicitor about the dog running onto the road and running across the road because that is probably what she did.” [40]

40. T 51.5

38. The plaintiff stated that the dog moved off as she started to move towards it and she stepped onto the road. [41] The Plaintiff denied running onto the road and maintained that, after seeing the dog, she panicked and took four steps (approximately) onto the carriageway of Turner Street onto the middle of the road. [42]

    41. T 52.40

    42. T 53.49

39. The Plaintiff could not recall seeing Dr Barold in November 2011, but in any event rejected the accuracy of his record of her running onto the road to chase her daughter’s dog.

40. The Plaintiff did not recall what she had told the attending police officers. Specifically, she denied saying “I panicked. I started to run towards the puppy that was in the middle of the road.”

41. The Plaintiff maintained that she saw the Defendant’s vehicle, did not have her back to it and that, after she saw the dog, it was not dark and that there were no streetlights operating. She also maintained that the vehicle had time to stop. To use her words:-

“I would not have run in front of a vehicle expecting to be hit unless I wanted to kill myself.” [43]

43. T 60.7

The Accident - Defendant’s Evidence

42. The Defendant gave evidence that as she turned into Turner Street, she saw something run out in front of her car. It came from the left and ran in front of the car towards the right and disappeared under a gate. [44] The Defendant stated that she was stopping the car by braking when she hit the Plaintiff. [45] She then stated:-

“Well I – the problem is I didn’t see Rachel. That is not where I was looking. I was looking at the small animal that had run in front of the car so I didn’t actually see Rachel until she was on the hood of my car.” [46]

44. T 64.33

45. T64.40

46. T 65.12

43. Then the Defendant stated:-

“Look I don’t know but I would like to say that I was not going very fast. I had – the car had stopped to let the other car pass before I could turn into the street and it is a very it – it’s, you know, it’s a narrow dark street. It’s not as narrow as some streets in Balmain but it does have this little narrow bit in it and it was dark so I – there wasn’t enough time to be going. I wasn’t going any faster than the speed limit and I think I was going slower.” [47]

47. T 65.25

44. The Defendant’s evidence was that she was braking her vehicle as she saw an animal on the road, although she did not know what it was. At the time of the collision with the Plaintiff she was in the middle of the road and the Plaintiff ended up down the road 2 or 3 metres away from the car. The Defendant was asked where she saw the small animal in front of her car. Her response initially was that it was in the middle of the brightest spot of her headlights, being the left hand side. [48] Then in the right head light. [49] Then not in the edges of the light, but the middle of the light. [50] She nevertheless identified the animal as a “goldie.” [51] Then, the following exchange takes place:-

“Q. I think the question that I asked you was how far was your car away from that running animal when you saw it in the brightest part of your headlight? I know it's difficult but doing the best you can?

A. I really don't know. I really don't know but it was quite I mean it wasn't so close to the car that I couldn't see it. It was actually sort of in that mid distance where you can see quite well.

Q. After you saw the dog in the brightest part of your headlight are you able to tell his Honour what time elapsed between that moment and your collision with Mrs Beyer?

A. They - they seemed to happen at the same time. In fact it was the noise first that made me look back to the car. I had no idea what I had hit. I didn't even see that there was a person in the street when I turned into it so I was really surprised that I had hit someone.

Q. When you say that seeing the small animal and the noise of the impact was almost instantaneous?

A. Yeah, they were almost together.” [52]

48. T 66.32

49. T 66.38

50. T 67.1

51. T 67.3

52. T 67.5-.22

45. The Defendant re-confirmed that she did not see the Plaintiff until she was on the bonnet of the car. [53] She stated that at this point of the collision, the Plaintiff was on the middle of the bonnet. As she was driving down Turner Street, there was a gap between her vehicle and the parked cars on the left. On the right hand side there were no vehicles parked. [54] She described it in the following terms:-

“Q. So did you move a bit out towards the right as the road widened, you came out of the neck and you moved a little bit more over to the right?

A. Okay, so I come out of the neck of the road, let's say, I'm coming into the wider bit, and so I went over a little bit further towards this side, because if another car comes so that we would both be able to pass. So I was actually edging over.

Q. To your right?

A. To my right. Just a little bit, nothing too, you know.” [55]

53. T 69.45

54. T 70.45

55. T 71.17

46. The Defendant was cross-examined as to her statement to Police and stated as follows:-

“Q. Later in the statement you were asked this; "When you first turned into the street, did you see the lady at all", and your answer was, "No, I didn't see her at all"?

A. I didn't see her at all.

Q. The next question was, "Did you attempt to take any evasive moves", and your answer was, "There was no time"?

A. There was no time.

Q. You see, in the police statement in the earlier part of it, you told the police that when you saw this small, maybe cat, run across, you attempted to apply the brakes; does that mean that you had taken your foot off the accelerator and were about to brake and then the impact happened?

A. I wasn't actually accelerating. Turner Street, it's actually a little bit of a tricky street to drive in, and so you sort of slow down a little bit before you come into that dog leg section because if another car comes around the corner really fast, you can get this sounds ironic you can be in a car accident. So I wasn't accelerating, I was actually slowing down because that is a really dark little spot right there. So I didn't have my foot on the accelerator the way I remember it, but I definitely remember putting my foot on the brake to stop for whatever that was that ran out in front of me, the little animal.” [56]

56. T 72.4-.25,

47. What is clear from the Defendant’s evidence is that she did not see the Plaintiff at any time travelling down Turner Street until after the collision occurred. The Defendant’s evidence as to where the animal was, when she first saw it, varied. Initially she said it was on the left hand side. [57] Then she said she saw it in the right headlight. [58] Before finally stating that it was on the “edges of the light, middle of the light, I think.” She identified it as a “goldie.”What was clear was that it was moving she was following its movements. [59] It surprised her and to use her words “we don’t have that much wildlife in Balmain” [60]

    57. T 66.32

    58. T 66.39

    59. T 64.33

    60. T 64.38

48. The Defendant re-confirmed in cross-examination that she did not see the Plaintiff until she was on the bonnet of her car. [61] She stated that at this point of the collision, the Plaintiff was in the middle and as the Defendant was driving down Turner Street there was a gap between her vehicle and the vehicles parked on the left. She stated that on the right hand side there were no vehicles parked. [62]

    61. T 69.5

    62. T 70.45

49. The Defendant acknowledged that the street was a residential street and as such that there was a possibility of pedestrian traffic on the road but qualified this by stating that it was late in the afternoon and cold. [63]

    63. T 73.13

ANALYSIS

50. The Plaintiff was unable to estimate the speed of the Defendant’s travel however she pleaded a speed of not less than 30km/hr. [64] The Defendant told the police that she had no idea at what speed she was travelling but was not accelerating as she had just turned the corner. [65] Although the police report notes a crash speed of 30km/hr, [66] it is unclear how this was derived. One thing that appears from the ambulance report is that it records the Plaintiff as “supine on the road, approximately 7 metres from the car that struck her” and “has not moved.” [67] It also records “driver states: don’t know speed I was going, it’s a quiet street.” The Plaintiff’s evidence was that she was thrown onto the other side of the road, which she measured the distance as 12 metres. [68] Despite the ambulance report, this distance was not challenged.

    64. [5] Amended Statement of Claim

    65. Exhibit C

    66. Exhibit A, p 253

    67. Exhibit A, p 29

    68. Exhibit B

51. In all, I accept that the Defendant’s speed was under the speed limit and was travelling around 30 km/hr. Although she claimed that she was breaking in exhibit C the Defendant stated to police that she was “attempting to break.´ On the evidence I am satisfied that any breaking had just commenced before the accident and I am not satisfied that it would have had much impact on the speed of travel at the time.

52. I accept the Defendant’s contention that a motor vehicle, travelling at 30 km/hr, travels at 8.33 metres per second and to travel that distance would take 5.4 seconds. The distance of sighting and the collision also has support in the Defendant’s evidence where she stated:-

“… I mean it wasn’t so close to the car that I couldn’t’ see it. It was actually, sort of, in that mid-distance where you can see quite well.” [69]

69. T 67.8

53. The Defendant submitted that the Plaintiff’s account had a logical inconsistency and that the Defendant could not have seen the Plaintiff within sufficient time to avoid a collision. At [34]-[38] of the Defendant’s written submissions, the following was stated:-

“34. The Plaintiff’s testimony was that having looked down to see her dog she then looked up Turner Street, saw the Defendant’s vehicle, at a distance measured the day before trial, of 45 metres.

35. Her testimony was that she then “pretty much straight away” took four large fast steps, reached down to scoop up the puppy with her left hand while holding up her right hand towards the Defendant’s approaching vehicle. As she went to scoop up the puppy she saw the Defendant’s vehicle about “half a metre from her right side.”

36. On any view of that evidence the time taken to make the four large, fast steps and start the scoop cannot have been more than 1-2 seconds.

37. A motor vehicle travelling at 30 km/hr travels at 8.33 m/s. To travel 45 metres at that speed would take 5.4 seconds.

38. However, to travel 45 metres in the 1-2 seconds necessary on the Plaintiff’s testimony would require a speed of between 81 km/hr (22.5 m/s) and 162 km/hr (45 m/s). Not only is that speed absurd but such a conclusion is not available on the contemporaneous record of the COPS report and the Defendant’s unchallenged evidence.”

54. The proposition that the Defendant’s vehicle was between 8 and 16 metres away from the Plaintiff, when she panicked and stepped into its path, was not directly put to the Plaintiff although it was suggested that the Plaintiff may not have seen the vehicle. [70] The Plaintiff was not cross-examined on her previous pleadings. They are not evidence in themselves. Nor was it put to the Plaintiff that it took 1 to 2 seconds as asserted in the Defendant’s submissions at [36]-[38] . In the circumstances I do not accept this time as accurate.

    70. T 60.10-.18

55. The Plaintiff’s evidence was that she observed the Defendant when she was still standing behind her own car. [71] She stated that her view of the Defendant’s car was over the top of the blue sedan, parked behind the Plaintiff’s vehicle. [72] The Plaintiff’s evidence was that she measured the distance between where she first saw the Defendant’s vehicle and where she was standing behind her parked vehicle. [73] This distance was recorded onto Exhibit B and noted as 45 metres. [74] The Defendant did not cross examine on this measurement. [75] I am satisfied that the Defendant could have seen the Plaintiff coming down Turner Street, at least, at a distance of 45 metres away.

    71. T 25.34

    72. T 25.44

    73. T 18.30-19.1

    74. T 19.2

    75. T 88.20-.40

56. The Plaintiff’s evidence was that, when she saw the Defendant’s vehicle, she fumbled the things she was carrying, she moved, glanced around and stepped onto the road, denying running, and went to grab the puppy with her left hand and put her right hand up. The ambulance report records the movement of putting her hand up. Thereafter, as I put to counsel, the Plaintiff must have been upright in the centre of the Defendant’s vehicular path, bearing in mind the nature of injury that the Plaintiff sustained and the fact that she fell onto the bonnet. The Defendant’s counsel accepted as much. [76] The Plaintiff stated that she probably took 4 large steps. She said that she was stationary and turning towards the car. I accept that in the prevailing conditions she would have been visible. It is difficult to account for the Plaintiff’s actions as described in her evidence unless she saw the vehicle and in my view those actions would have taken longer than 1 or 2 seconds.

    76. T 83.15-.25

57. The ambulance report and the police report do not record the Plaintiff as running, nor does the Royal Prince Alfred Hospital discharge referral.

58. Dr Peckham, clinical psychologist, saw the Plaintiff on 11 May 2011, soon after a discharge from hospital and her report is at Exhibit A, p 127. The version of the history, by and large, corresponds with the Plaintiff’s evidence although the issue regarding the neighbour calling an ambulance was not ventilated as indicated earlier.

59. I have noted that after discharge, the Plaintiff saw her general practitioner, Dr Kooke. His report is at Exhibit A p 34 and records a history of the Plaintiff chasing her daughter’s dog onto the street. Dr Mulford, who saw the Plaintiff on referral from Dr Kooke on 21 June 2011, obtained a similar history. [77] The reports were from treating doctors, immediately following the Plaintiff’s discharge. The histories were admitted but limited as evidence of what was recorded as said to the doctors in their reports as opposed to evidence of the truth (pursuant to s 136 of the 1995 Act). [78]

    77. Exhibit A p 109

    78. T 47.40-48.10

60. As noted earlier the Defendant made some issue out of the fact that Dr Barold, in his report dated 10 November 2011, [79] takes a history of:-

“Mrs Beyer was struck on her right leg by a motor vehicle on 6 May 2011 as she ran onto the road to chase her daughter’s puppy.”

79. Exhibit A p 93

61. Notwithstanding this reference, I accept the Plaintiff’s evidence which corresponds with what was in the police, ambulance and treating practitioner reports. Whilst the Plaintiff clearly had a concern for the safety of her daughter’s dog, the distance and circumstance of the collision did not accord with her running, particularly the fact of her bending to catch the animal with her right hand up and then standing upright before the collision.

PRINCIPLES

62. The obligations of drivers in such circumstances were recently restated in Warth v Lafsky [2014] NSWCA 94 by McColl JA (with whom Preston CJ of the LEC and Tobias AJA agreed) where Her Honour said at [55]-[56]:-

"55. The principles concerning the duty of care a driver owes to other road users, and those germane to breach of duty by reference to s 5B of the Civil Liability Act, were recently summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner [2013] NSWCA 396 as follows:

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

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

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

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

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

56. Notwithstanding the conclusion in Derrick v Cheung [2001] HCA 48; 181 ALR 301, it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines: Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 (at 418) per Mahoney P; Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 (at [16] - [17]) per Emmett JA (Ward and Gleeson JJA agreeing). A greater standard of care is required of motorists when young children are in the vicinity of a road, or reasonably expected to be in the vicinity: Gunning v Fellows (1997) 25 MVR 97 (at 98) per Beazley JA (with whom Mason P and Cole JA agreed); Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 (at [87]) per McColl JA (Macfarlan JA agreeing). Motorists should "exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections": Turkmani v Visvalingam [2009] NSWCA 211; (2009) 53 MVR 176 (at [28]) per Hodgson JA (Beazley and McColl JJA agreeing).”

63. I accept the risk of harm for the purposes of s 5B (1) of the Civil Liability 2002 [80] was the risk of the Plaintiff being stuck by a motor vehicle upon entering the roadway. I am satisfied on the evidence that, consistent with the aforementioned authorities, had the driver kept a proper lookout she would have seen the Plaintiff standing behind her vehicle at a distance of at least 45 metres striding out towards the centre of the carriageway and could have taken the steps of applying the brakes fully to stop the vehicle or steering away to the side, bearing in mind there were no vehicles coming in the opposite direction and there were no vehicles parked, according to the Defendant’s own evidence [81] . In my view, breach of duty of care was clearly established in that the risk was foreseeable, not insignificant and a reasonable driver in the Defendant’s position would have taken those precautions (bearing in mind the factors in s 5B (2) of the 2002 Act). Having regard to the principles in s 5D of the 2002 Act, I am satisfied that causation has been established. It follows I do not need to consider the application of the blameless accident provisions in Part 1.2, Division 1 of the 1999 Act.

    80. Hereinafter the ‘2002 Act’

    81. T 70.45

CONTRIBUTORY NEGLIGENCE

64. The Defendant pleads contributory negligence although its submissions were at [77] of its written submissions and at T86.20- 88.48 were largely made in the context of a blameless accident.

65. In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34, Gibb CJ, Mason, Wilson, Brennan and Deane JJ said, in relation to the apportionment of liability, at [8]:-

“A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v. Macgregor (Owners) (1943) AC 197, at p 201. Such a finding, if made by a judge, is not lightly reviewed.”

66. In [38] of the Plaintiff’s written submissions, the Plaintiff’s counsel, after referring to Podrebersek stated:-

“However, consistent with Pennington v Norris and cases which have followed it, the Plaintiff respectfully submits that this approach should be tempered in favour of the Plaintiff, given the propensity of Motor Vehicles to cause severe injury to pedestrians.”

67. This was the contention which the Plaintiff did not pursue in oral argument in light of the Defendant’s submission that it was contrary to the decision in Boral Bricks Pty Ltd v Cosmidis(No 2) [2014] NSWCA 139. In that case, Basten JA considered the application of s 5R of the 2002 Act which applies by reason of s 138(2) of the 1999 Act. His Honour questioned whether s 5R overrode the comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760 at [762]-[763]. At [99]-[100] Basten JA stated:-

“Assuming that the requirement that people should take responsibility for their own lives and safety is now reflected in s 5R, and was intended to override the approach of Murphy J in Watt, there is a question as to whether the statements in Talbot-Butt still reflect the law in this State. The potential dangerousness of heavy machinery and fast vehicles can no doubt be applied universally, although the consequence of its application will vary depending on whether one, both or neither party is in control of such a vehicle. On the other hand, applying the general principles in s 5B(2) one could approach the matter differently. Thus, the probability that harm would occur if care were not taken and the likely seriousness of the harm would operate differentially with respect to the driver of the forklift and the pedestrian, but with the same result. That is, no distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally.

A purposive approach to the operation of s 5R (and s 5B) requires that this approach be adopted. To approach the matter in this way is not to decline to follow applicable earlier authority of this Court. Talbot-Butt long pre-dated the Civil Liability Act; it also pre-dated s 74 of the Motor Accidents Act, the forebear of s 138 of the Motor Accidents Compensation Act.”

68. Emmett JA agreed with the reasons of Basten JA. McColl JA took a different approach stating that s 5R in so far as it picks up s 5B of the 2002 Act reflects the common law proposition concerning contributory negligence as explained by McHugh J in Joslyn v Berryman [2003] HCA 34. [82]

    82. See [58]-[59]

69. Basten JA further considered the matter in Gordon v Troung [2014] NSWCA 97 where His Honour reiterated the views expressed in Boral Bricks Pty Ltd v Cosmitis (No 2).

70. In Nominal Defendant v Ross [2014] NSWCA 212, Hoeben JA reiterated the relevant paragraphs from Basten JA’s judgment from Gordon v Truong stating, at [45]-[48], as follows:-

“45. The exercise of the discretion was considered by Basten JA in a similar factual context in Gordon v Truong; Truong v Gordon [2014] NSWCA 97 at [13] where his Honour said:

"Relevant principles

13 The assessment of contributory negligence is to be conducted in accordance with the requirements of s 138 of the Motor Accidents Compensation Act 1999 (NSW). This provision, relevantly, adopts two principles. The first is that "damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case": s 138(3). That language reflects the standard applied by the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1).

14 Secondly, the Motor Accidents Compensation Act requires that the "common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section": s 138(1). The reference to the common law may be put to one side: apportionment of liability on account of contributory negligence is a creature of statute in this jurisdiction. Importantly, however, the "enacted law as to contributory negligence" picks up Divs 2 and 8 of Pt 1A of the Civil Liability Act 2002 (NSW) which expressly apply to motor accidents: s 3B(2)(a). Division 8 includes s 5R which is in the following terms:

5R Standard of 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 contributory 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 that person, and

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

15 The principles applicable in determining whether a person has been negligent include the "General principles" set out in s 5B. Applying these principles as required by the statute is not without its difficulties. Where the plaintiff and defendant are both drivers in control of similar vehicles, questions of negligence and contributory negligence can readily be assessed according to the same broad standards. However, where the plaintiff is a pedestrian and the defendant a driver of a vehicle, the negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is, generally, to be assessed against a risk of harm to him - or herself. (It is possible that the carelessness of a pedestrian may create a risk of harm to other drivers, for example, if a car is forced to swerve to avoid a pedestrian, but that is not this case.) The harm which the motor vehicle is likely to cause to the pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind.

16 The purpose of s 5R may be gleaned from the recommendations in the Review of the Law of Negligence: Final Report (September 2002) which are, in this case, reflected in the statute. At par 8.7, the Report stated:

"Should the law allow people to take less care for their own safety than it requires others to take for their safety? ... Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?"

17 The Report then stated at par 8.11:

"Leading text book writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same. There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendants. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel's view, this approach should not be supported."

18 The penultimate sentence was supported by reference to three judgments in the High Court and two in the South Australian Supreme Court. The comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760 at 762-763, are in point. Referring to the South Australian equivalent of the 1965 Act, s 9(1)(b), Murphy J stated:

"The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision. ... For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision."

19 The application of the principles in the present case is complicated by the fact that, the appellant having admitted liability, there was no proper consideration of the nature of his breach of duty. Counsel for the plaintiff submitted that such a consideration was unnecessary given the concession: however, that is not correct. If a defence of contributory negligence requires an apportionment of liability based upon the responsibility of each for the accident, the comparative exercise cannot be adequately carried out unless the degree of responsibility of the driver is assessed. On the other hand, what the plaintiff could fairly submit was that because the proof of contributory negligence lay with the driver, who had an interest diminishing the degree of his responsibility, to the extent that he did not undertake that task, he could not be heard to complain if the assessment of contributory negligence was less than it should have been.

20 Apart from the mistake in relation to the traffic lights, the responsibilities of each for the accident fell within a similar range. Thus, each should have seen the other in ample time to take evasive action. It might have been arguable that the negligence of the plaintiff was greater because it should have been easier to see a large van approaching than for the driver to see a pedestrian against a background of parked cars. On the other hand, the driver's evidence did not allow much room for leniency: the proper inference was that he was simply not looking.

21 In terms of possible responses, the culpability of the driver was probably greater. If he had seen the plaintiff in reasonable time, he could either have slowed down or changed lanes so as to leave ample room to avoid the plaintiff. The options open to a pedestrian may be more limited."

46. While it may be said that the negligence on the part of the respondent and the driver of the minibus was of a similar kind, i.e. neither kept a proper lookout, other considerations are also relevant. A failure by a pedestrian to keep a proper lookout might result in injury to himself. A failure by a driver of a large vehicle, such as a minibus, might result in not only injury to himself, but serious injury or death to an innocent party. In that regard, moral culpability weighs more heavily against a driver than against a pedestrian, even though their actions may, to a similar degree, have contributed to the accident. That has been the approach traditionally adopted by the courts.

47. In Pennington v Norris [1956] HCA 26; 96 CLR 10 the court (Dixon CJ, Webb, Fullagar and Kitto JJ) made similar observations at p16 in an analogous case. There both the driver and the pedestrian failed to keep a proper lookout but the driver was travelling at an excessive speed:

"15 Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiff's conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration. The defendant's position was entirely different. The learned judge found only that he was negligent in not keeping a proper look-out, but there were several other important elements in the case, as Mr Wright pointed out. We think, indeed, that the equal allocation of responsibility by his Honour must have proceeded from an overlooking of these elements. The first matter is his speed. It could not on the evidence have been found to be less than thirty miles per hour. Again, there was a large number of people in the vicinity ... It was a misty night, and the road was wet. Visibility must have been impaired by these factors, and it was further impaired by mistiness on the inside and outside of the windscreen. To drive at thirty miles per hour in a town at night under these circumstances seems to us to have been to do an obviously dangerous thing, and to have amounted to negligence of far greater culpability than anything that can possibly be attributed to the plaintiff."”

In Hawthorne v Hillcoat[2008] NSWCA 340 Hodgson JA (with whom Ipp JA and Gyles AJA agreed) said at [47]:

"... The standard in respect of a driver ... to be able to take reasonable steps to react to events is itself a standard of reasonable skill and care; and although the standard of reasonable skill and care required of drivers is a high standard (because cars are so dangerous, and can so easily cause serious injuries), it is not a standard measured by success or perfection assessed with the wisdom of hindsight. "

71. Beazley P agreed with the views of Hoeben JA and Meagher JA also agreed on the question of contributory negligence.

72. Nearly three weeks later, the Court of Appeal handed down its decision in T and X Company Pty Ltd v Chivas [2014] NSWCA 235. In that case Basten JA reiterated the view that he had expressed in earlier cases referred to above, at [53]-[54] he stated:-

“……… difficulties in applying the same legal principles in determining negligence of the defendant and determining whether the injured party was contributorily negligent in failing to take precautions "against the risk of that harm". Secondly, it is not entirely clear whether, by an implication from the statement in s 5R(1) (that the principles applicable in determining negligence also apply in determining contributory negligence), the standard of care identified in s 5R(2) in relation to the injured person is that which applies to the person causing the injury: cf D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, Law Book Co, 2013) at 247.

The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety. It appears to have been this factor, however, which led the trial judge to place a greater share of responsibility on the driver than the pedestrian.”

73. Barrett JA agreed with Basten JA. Beazley P, who had agreed with Hoeben JA in Nominal Defendant v Ross (supra), dissented, after referring to cases as to the damage that a motor vehicle may do to a pedestrian. Her Honour stated at [10]:-

“Those cases were decided prior to the introduction of the Civil Liability Act. Nonetheless, the case law has continued to recognise the relevance of the harm that can be done by a motor vehicle for the purposes of determining breach of duty of care. Thus, in Duggan v Chan [2013] NSWCA 182; 64 MVR 249 Emmett JA (Ward and Gleeson JJA agreeing) observed, at [17]:

"Drivers of motor vehicles, being in charge of frequently lethal machines, are under a duty to drive reasonably in the circumstances in which they find themselves. Such circumstances include the fact that a driver is driving lawfully by obeying green lights and travelling within the limit proscribed by the law. On the other hand, other circumstances may need to be taken into account as well: Tsuji v Metromix Pty Ltd [1998] NSWSC 691; (1998) 28 MVR 401 at 403-4. Thus, a motorist may have some reason, because of the surrounding circumstances, to be aware that pedestrians are likely to behave carelessly ... A motorist must always be conscious of the fact that a pedestrian may do something silly and must adjust his or her driving to account for that possibility."”

74. In Zheng v Wallace (2015) 69 MVR 301, Price J followed T and X Company Pty Ltd (supra). His Honour also followed Town of Port Headland v Hodder (2012) 43 WAR 383 in holding that what a reasonable person would have done for the purposes of s 5B (1)(c) of the 2002 Act involved the application of an objective standard. I accept that T and X Company Pty Ltd (supra) correctly states the current position to be followed on contributory negligence.

75. In this instance the Plaintiff clearly saw the Defendant’s vehicle but anticipated that the Defendant would have sufficient time to stop. Her concentration was on the safety of the dog although she looked and observed the presence of the Defendant’s vehicle. She was confronted with a dynamic situation. She placed herself in a position which was hazardous and her safety depended on the Defendant keeping a proper lookout and noticing her presence accentuated by a hand signal. Any potential of withdrawing from its path diminished with time and to the extent she did not do so failed to have regard to her own safety. The Defendant did not see the Plaintiff at any time prior to the collision. For a short part of the time her vision may have been more limited, in part, by parked vehicles, however, it is clear from her evidence that her attention was focussed on the movement of the dog, even after it was no longer in her path. The Defendant clearly did not keep a proper lookout, not seeing the Plaintiff until colliding. She had the means and time to avoid the collision. I am satisfied that her view was not impeded by either the lighting or the Plaintiff’s dress. She was aware that Turner Street was a residential street and at the time pedestrians may be present. Overall I would assess the Plaintiff’s contributory negligence at 30%.

DAMAGES

Background

76. On 3 June 2011, the Plaintiff saw a general practitioner, Dr Kooke, who referred her to Dr Mulford, orthopaedic surgeon. Dr Mulford’s report [83] notes a suspected fracture in the right knee and an injury to the left hand. The Plaintiff was referred for an x-ray of her lumbar spine, CT of the left wrist and an MRI of her knee. The results of these investigations are to be found in Exhibit A p 35-36, being a report of Dr Cuganesan from Spectrum Medical Imaging, dated 23 June 2011. It is not clear whether the reference in that report to an MRI of the left knee was a mistake.

    83. Exhibit A p 107

77. On 24 June 2011, the Plaintiff saw Dr Mulford [84] who continued non-operative treatment. He noted that the Plaintiff had a wrist brace and began a physiotherapy program. The Plaintiff continued to see Dr Mulford on 16 July 2011, 16 August 2011 and 18 October 2011. On the latter occasion he noted:-

“On 18 October I reviewed Rachel. She had remarked on an improvement, her right knee was now using only an intermittent brace but was off all crutches and mobilising fairly freely. She had a good range of motion of the knee and was stable.

In regards to her left hand, she was getting intermittent pain, however, she was almost out of her splint and was only taking simple analgesic. She still gets pain when she changes gears, undoing lids and weight bearing with shopping bags.

Clinically, on examination, she had a good range of motion of the hand. She had no tenderness of the CMC articulation but had some intermittent pain around the metacarpophelangeal joint of the little finger.

She is still experiencing lower back pain and pain around the pelvis but this has been improving with her physiotherapy program. I have recommended that she continue with her physiotherapy program and I was happy to discharge her from my care at that stage.”

84. Exhibit A p 109

78. The Plaintiff also saw Dr Peckham, clinical psychologist, who she had previously seen for assistance for the management of her daughters and coaching around career and study choices. Dr Peckham’s report, dated 7 November 2012, [85] states that, as there was a therapeutic connection, the Plaintiff wanted to return to clinical visits with her after the accident. The report describes the Plaintiff suffering from post-trauma symptoms such as social withdrawal, hyper vigilance and flash backs of the accident, both visually and auditory. Initially, the Plaintiff was provided with home visits as she avoided leaving home. Dr Peckham noted that the Plaintiff presented with feelings of grief and loss. She was diagnosed with Post Traumatic Stress Disorder with a depressed mood in accordance with DSM IV. She was provided with cognitive behaviour therapy and exposure therapy to assist her with facing daily tasks that she was avoiding due to the accident. It was noted that she was prescribed Zoloft.

    85. Exhibit A p 127

78. On 8 August 2013, the Plaintiff came to see Dr Peter Lam, orthopaedic surgeon. [86] Dr Lam noted a history of left ankle pain during rehabilitation associated with left ankle instability, there was noted to be worse pain when walking, especially on stairs and on uneven ground and this was also associated with ankle swelling. It was noted that the Plaintiff was walking with a stick at the time as a result of her instability. The Plaintiff found strapping helpful in aiding her ankle instability and had a pair of orthotics to help reduce her lateral ankle pain. Dr Lam noted that an MRI on the left ankle and foot of 20 June 2013 showed evidence prior lateral ligament injury with deficiency of the lateral ligament complex. Dr Lam also noted that the Plaintiff would require a left ankle arthroscopy to address her ankle pain and lateral ligament reconstruction to reduce her ongoing instability.

    86. Exhibit A p 132

79. An arthroscopy and left lateral ligament reconstruction was performed on 7 November 2013 at North Shore Private Hospital. The clinical notes recorded that the Plaintiff remained there overnight. [87]

    87. Exhibit A p 133-188

80. The Plaintiff commenced physiotherapy on 11 December 2013. It was noted at discharge from hospital that she was to have subcutaneous Clexane injections for 2 weeks.

81. On 23 December 2013, the Plaintiff fractured her right fourth toe as she stubbed her toes on a wall after tripping in a CAM boot. She continued physiotherapy into 2014, consisting of soft tissue release, joint mobilisation, stretching, ankle range of motion exercises, regular icing and a progressive strengthening and proprioceptive exercise program. [88]

    88. Exhibit A p 189

82. On 12 May 2014, the Plaintiff was reviewed by Dr Bradley Seeto, orthopaedic surgeon, who arranged an up-to-date MRI to assess the degree of degeneration which had occurred, post traumatically in the lateral compartment of the Plaintiff’s knee, noting that the Plaintiff had symptoms of patello-femeral degeneration. This was carried out on 21 May 2014 by Dr Robertson. [89]

    89. Exhibit A p 197

83. Dr Seeto reported on 14 May 2014 that if the Plaintiff felt that her symptoms had failed non-operative treatment, then she would require a total knee replacement. The Plaintiff was asked to represent if her symptoms warranted undergoing surgery.

84. The Plaintiff was also seen by a number of medico-legal experts, Dr Barold, [90] Dr Akkerman, [91] Dr McClure, [92] Dr Giblin [93] and Dr Harvey. [94]

    90. Exhibit A pp 93-106

    91. Exhibit A pp 111-117

    92. Exhibit 1

    93. Exhibit A pp 118-125

    94. Exhibit A pp 200-210

85. The Plaintiff was also assessed by the Motor Accidents Authority Medical Assessment Service on 22 May 2013 by assessor William Bye. His certificate, dated 29 May 2013, was in evidence. [95] It certified that the Plaintiff did not meet the non-economic loss threshold. A further assessment was undertaken in relation to psychological injuries by Dr Jones of the Motor Accidents Authority Medical Assessment Service on 7 May 2013. This certificate is dated 31 May 2013. [96] The impairment certified in this certificate also fell below the non-economic loss threshold.

    95. Exhibit A pp 212-230

    96. Exhibit A pp 237-259

86. The Plaintiff was not in employment at the time of the accident and does not pursue any claim in relation to non-economic loss. The damages claim is confined to past and future out of pocket expenses and past and future domestic assistance.

Past Out of Pocket Expenses

88. From Exhibit B, I was advised that past out of pocket expenses were agreed as being outstanding in the sum of $10,464.80, noting that the Defendant’s insurer had made a payment of $7,714.09 pursuant to s 83 of the 1999 Act. This makes an amount of out of pocket expenses of $18,178.89 in relation to which the Defendant has a credit of $7,714.09. There is a dispute over the sum of $3,166.00 for disputed therapy. I was informed by the Defendant’s counsel that the dispute was in respect of chiropractic treatment that the Defendant disputed based on Dr Harvey’s report. [97]

    97. T 77.20

89. The Defendant’s written submission at [92] rests on Dr Harvey seeing no need for ongoing physiotherapy, chiropractic or acupuncture treatment.

90. In Exhibit A p 217, assessor Bye noted:-

“…periodically undergoes chiropractic when she can afford this. The chiropractic is aimed at the general facilitation of walking, advice about weight and strengthening exercises.”

91. Dr Barold, in his report dated 10 November 2011, [98] referred to a need for a gym program focused on neck mobilisation and right quadriceps strengthening exercises.

    98. Exhibit A p 101

92. A number of sessions for physiotherapy were on referral from Dr Kooke to the Balmain Sports Medicine Centre. These services were noted at the time of the Plaintiff’s seeing Dr Mulford as improving the Plaintiff’s pain. [99] Furthermore, Dr Mulford recommended that the Plaintiff continue her physiotherapy program. [100]

    99. Exhibit A p 110

    100. Exhibit A p 110

93. Dr Kooke, in his report of 12 November 2011, [101] noted that the Plaintiff’s level of mobility improved significantly over the previous five months to the point where she no longer needed to take analgesic medication or use aids for mobility. However, since cessation of the physiotherapy she has had a marked deterioration with symptoms in both right knee and hand.

    101. Exhibit A p 108

94. The Plaintiff’s evidence was that, originally, the NRMA had paid for the physiotherapy but later had denied liability. [102] The Plaintiff stated that she attended chiropractic treatment mainly once a week on average. She stated that it was giving her some relief. She stated that she believed that it would be a long process because there was a lot of physical correction that would need to happen. Her evidence in this respect was unchallenged. As was her claim that she changed from physiotherapy to chiropractic because she was not getting the relief she needed from physiotherapy. [103]

    102. T 36.20

    103. T 35.30

95. On balance, I am satisfied that the claim for past therapy is reasonable and I allow the disputed amount of $3,166.00.

Future Out Of Pocket Expenses

96. The Plaintiff’s evidence was that she takes Zoloft, Norspan patches and Panadeine Forte. There was some imprecision in her accounting of the expenditure on medication, so far as I can gather it was between $30 and $100 or more per month. [104] On this basis, the Plaintiff claims $25 per week which, on a multiplier of 917.5, totals $22,937.00. The Defendant disputes this, relying on Dr Harvey’s report who did not recommend opioid analgesia but recommended Panadol and use of NSAIDs.

    104. T 35.35-.46

97. Dr Giblin, in his report dated 27 February 2012, [105] stated that the Plaintiff’s medical costs would be somewhat similar to those expended over the last 12 months on a pro rata basis and required for a further 12 months. Dr Barold, in his report dated 10 November 2011, [106] said that medication over the next 6 months would be for analgesia, anti-inflammatory agents and anti-depressants and would best be estimated at a cost of $600.00.

    105. Exhibit A p 123

    106. Exhibit A p 101

98. There is imprecision in the evidence, including as to the cost claimed. Notwithstanding Dr Harvey’s views, I am satisfied that the bulk of what the Plaintiff is using is reasonable and necessary. It is clear that prescribed medication is being monitored by her general practitioner. In all, bearing in mind the imprecision, I would allow $20 per week which, on a multiplier of 917.5, totals $18,350.

99. Based on the Plaintiff’s evidence as to the effect of ongoing chiropractic treatment, I am not satisfied that it is reasonable and necessary. The Plaintiff’s evidence as to the ongoing effectiveness of chiropractic treatment is that it is a long process. The treatment is neither supported by any expert evidence nor is there any report from the chiropractor.

100. The Plaintiff gave evidence relating to seeing Dr Peckham before the accident. Dr Peckham noted in her report, dated 7 November 2012, that she provided the Plaintiff with cognitive behaviour therapy. [107] The Plaintiff has not had any psychiatric treatment. The Plaintiff gave an account of her symptoms after the accident as noted earlier. The Plaintiff stated that she continues to see Dr Peckham every 1 to 2 months and there has been some improvement in her condition. She described an ongoing fear of walking, hearing the noise of the collision, frustration in her inability to do things and interference in her social life.

     107. Exhibit A p 129

101. Dr Akkerman, who reported on the Plaintiff on 3 February 2012, [108] noted that the Plaintiff’s condition was stable but thought that the Plaintiff could benefit from seeing a psychiatrist and taking anti-depressant medication. The treatment would be fortnightly to monthly for about two years. This was not pursued, although the Plaintiff continues to take Zoloft, prescribed by her general practitioner. Dr Akkerman diagnosed Post Traumatic Stress Disorder.

     108. Exhibit A p 111

102. Dr McClure saw the Plaintiff on behalf of the Defendant and reported on 12 June 2012. [109] Dr McClure diagnosed a chronic adjustment disorder with mixed anxiety and depressed moods. He noted that the Plaintiff had twenty occasions of psychological treatment and recommended ten further sessions of formal cognitive behaviour therapy. He also recommended that the Plaintiff’s anti-depressants should be increased in dosage or ceased in favour of a more potent agent. He stated that Dr Akkerman’s treatment suggestion was unspecified but the Plaintiff’s adjustment disorder was more likely than not to have reached a stage of maximal medical improvement.

     109. Exhibit 1

103. Dr Jones’ medical assessment of the Plaintiff took place on 7 May 2013, when he issued the certificate previously referred to. He noted that the Plaintiff had not seen Dr Peckham for two months and that the Plaintiff had seen her infrequently. He proposed no further treatment at that moment. His diagnosis on assessment was consistent with Dr McClure’s in finding a chronic adjustment disorder with mixed anxiety and depressed moods.

104. Overall I am not satisfied that the evidence supports the claim for further sessions with Dr Peckham as reasonable and necessary. There is no up to date information which details what treatment is being provided and the benefit to the Plaintiff continuing so long after the accident. I am persuaded in this view by the report of Dr McClure which places a finite limit on the therapy to be provided.

105. The Plaintiff claims four visits per annum to see her general practitioner. Her evidence supports the continued use of anti-depressants which was now prescribed by Dr Novotny. [110] I would allow four visits per annum at $65 each, being $5 per week based on the multiplier of 917.5 this comes to an amount of $4,587.50.

     110. T 34.42

106. Both Dr Seeto and Dr Harvey can see that the Plaintiff may require a total knee replacement in the future. Dr Harvey assesses the current cost at $32,000.00. At Exhibit A p 207, however, Dr Harvey states that the joint services of the lateral libial condyl are so well preserved at the present time as to make it a possibility rather than a probability. Dr Seeto, however, in his report of 14 May 2014, states:-

“There has been significant worsening of the arthirtis in the retropatella surface. There was marked chondrol loss and subchondrol cystic formation.”

107. In my view, based on Dr Seeto’s report, I do not find the prospect of a knee replacement as a possibility but rather something likely to occur into the future, and I assess the prospect at 85%. On this basis, I would set the Plaintiff’s submission of a deferral of 10 years, based on the amount of $32,000.00 multiplied by 0.614, the amount in present day terms is $19,640.00, in respect of which 85 % is $16,694. Accordingly, the summary for future out of pocket expenses totals $39,631.50.

Past Domestic Care

108. The Plaintiff claims past domestic care based on her evidence which I accept that she had 18 months of gratuitous assistance for 10 hours per week. That assistance meets the threshold pursuant to s 141B of the 1999 Act, and I would allow 18 months until approximately 6 November 2012 at the submitted rate of $26 per hour, being in accordance with s 141B. This totals in the amount of $20,280.00.

109. Thereafter the amount of domestic assistance fell below the s 141B(3) threshold. From the time that the Plaintiff went to the North Shore Private Hospital to February/March 2012, the Plaintiff’s evidence was that she again had ten hours of domestic assistance per week. This period corresponds with 7 November 2013 to February/March 2014. Although the Plaintiff’s next period of claim for domestic assistance is less than 6 months, I consider it reasonable on the evidence to equate this to 14 weeks. The Defendant disputes any entitlement during this period based on Hill v Forrester. [111] The Defendant’s submission does not cite what part of the judgment supports its submission. The majority view is that of Tobias JA and Sackville AJA. Tobias JA agreed with the view of Sackville AJA, expressed at [100]-[103], that the duration requirement needs only to be satisfied once so that damages may be awarded for periods of less than six consecutive months, both before and after the duration requirement is met. On this basis, the Defendant’s submission is rejected. Although the legislation under consideration in Hill v Forrester concerned an analogous provision,[112] neither party suggested that the decision was not applicable in relation to the similarly worded s 141B (3) of the 1999 Act. I accept the Plaintiff’s claim at $27.72 pursuant to s 141B and allow an amount in relation to this second period in the amount of $3,895.00. this makes the total past domestic care damages $24,175.00.

     111. (2010) 79 NSWLR 470

     112. s 15(3) Civil Liability Act 2002

110. The parties both accept that past paid cleaning services should be allowed in the sum of $10,000.00 and I allow it.

Future Domestic care

111. For the future, the Plaintiff’s evidence was that she paid a cleaner approximately $100 per fortnight. Although the Plaintiff claimed that if she could afford it, she would have the cleaner come more regularly, it is not clear what additional requirements are left unfulfilled by the current arrangement. Dr Harvey considered 1 to 2 hours of domestic assistance indefinitely as a consequence of the accident. There is a history that the cleaner at that stage was coming for two hours per week whereas the evidence was sometimes weekly and sometimes fortnightly. Overall I accept on the Plaintiff’s unchallenged evidence and consistent with Dr Harvey’s opinion an average of 1.5 hours per week, being an amount of $75. Although greater hours were supported by Dr Barold in his report of 10 November 2011, these were not supported by the Plaintiff’s evidence. Allowing $75 per week, on a multiplier of 917.5, makes a total future allowance of $68,812.50.

CONCLUSIONS AND ORDERS

112. Accordingly, the damages in summary are as follows:

1. Past out of pocket expenses (agreed including amount paid by insurer): $18,178.89;

2. Past out of pocket expenses (in dispute but allowed): $3,166.00;

3. Future out of pocket expenses: $39, 631.50;

4. Past domestic assistance: $24,175.00;

5. Past cleaning: $10,000.00; and

6. Future domestic assistance: $68,812.50.

113. This makes a total award of $163,963.89 less 30% for contributory negligence being an amount of $114,774.72

114. Pursuant to s 83 (5) of the 1999 Act the Defendant has a defence to the extent of $7,714.09 in respect of payments made.

115. Accordingly there will be a verdict and judgment for the Plaintiff in an amount of $107,061.00 (rounded off).

116. The Defendant is to pay the Plaintiff’s costs.

117. Liberty is granted to relist the matter within 14 days upon 48 hours’ notice for the hearing of any further application as to costs.

118. The exhibits are to be retained for 28 days.

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Endnotes

Decision last updated: 08 May 2015