Rhonda Payne v Lee Ronald Witt - [2017] NSWDC 78

District Court

New South Wales

Medium Neutral Citation: Rhonda Payne v Lee Ronald Witt [2017] NSWDC 78
Hearing dates: 13 December 2016 to 15 December 2016, 15 and16 March 2017
Decision date: 11 April 2017
Jurisdiction: Civil
Before: Mahony SC DCJ
Decision:
Verdict and judgment for the plaintiff. For orders see [165]

Legislation Cited: Civil Liability Act 2002, ss 3B, 5R, 5S
Motor Accidents Compensation Act 1999 (NSW), ss 126, 138, 141B
Road Rules 2008, reg 74
Cases Cited: Blacktown City Council v Hocking [2008] NSWCA 144
Davis v Swift [2014] NSWCA 458
Dessent v Commonwealth of Australia (1977) 13 ALR 437
Gordon v Truong [2014] NSWCA 97
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
Hickson v Goodman Fielder [2009] HCA 11
Kallouf v Middis [2008] NSWCA 61
Malec v J C Hutton Pty Limited (1990) 169 CLR 638
Mead v Kerney [2012] NSWCA 215
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Nominal Defendant v Livaja [2011] NSWCA 121
Penrith City Council v Parks [2004] NSWCA 381
Townsend v O’Donnell [2016] NSWCA 288
Verryt v Schoupp [2015] NSWCA 128
Wade v Allsopp (1976) 10 ALR 353
Category: Principal judgment
Parties: Rhonda Payne (Plaintiff)
Lee Ronald Witt (Defendant)
Representation:
Counsel:
D Campbell SC/I Bradfield (Plaintiff)
D Ronzani (Defendant)
Solicitors:
RMB Lawyers
Hunt & Hunt

File Number(s): 13/288343
Publication restriction: Nil

Judgment

Introduction

The plaintiff claims damages for injuries she received on 13 December 2011 during her work as a postal delivery officer in Yass, New South Wales. She was riding her work motorcycle along the nature strip of Lead Street, Yass, having delivered mail to premises at 34 Lead Street. As she approached the next house, she crossed the driveway of that property, and whilst doing so, was struck by a vehicle driven by the defendant, who was driving out of the driveway towards Lead Street.
The defendant admitted breach of his duty of care to the plaintiff. However, adjacent to the driveway, and between the defendant’s property and the neighbouring property, was a hedge which obstructed the defendant’s view of vehicles coming in the direction that the plaintiff’s motorcycle was travelling, namely, from the defendant’s right-hand side. The defendant has alleged contributory negligence on the part of the plaintiff and relies on the following particulars of negligence:

“Failing to keep a proper lookout.

Failing to exercise any proper care when travelling along the nature strip and crossing the driveway.

Failing to observe the defendant’s vehicle.

Travelling at a speed excessive in the circumstances.

Failing to take any reasonable, or any care when travelling past a blind driveway, particularly given the plaintiff’s experience as a mail woman at the accident location.

Failing to exercise reasonable care for her own safety.

Failing to take evasive action and driving into the defendant’s vehicle.

Failing to take action to avoid the defendant’s vehicle.

Failing to warn of her approach whether by sounding her horn or otherwise.

Being inattentive.”

Issues to be determined

The following issues are to be determined:

Was the plaintiff guilty of contributory negligence, and if so, should the plaintiff’s damages be reduced?

The following heads of damages are to be assessed:

Past wage loss.

Future economic loss.

Future domestic care.

Past treatment expenses.

Future treatment.

Contributory negligence

Both the plaintiff and defendant gave evidence of the circumstances in which their vehicles collided. Contributory negligence in relation to a motor accident is to be determined by application of both s 138 of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) and ss 5R and 5S of the Civil Liability Act 2002 (“CLA”).
Section 138 of the MACA provides relevantly as follows:

“138 Contributory negligence – generally
(1) 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.
…
(3) The 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.
(4) The court must state its reasons for determining the particular percentage.”

Pursuant to s 3B(2) of the CLA, ss 5R and 5S apply to motor vehicle accident claims. Those sections provide as follows:

“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 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 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.

5S Contributory Negligence Can Defeat Claim
In determining the extent of a reduction in damages by reason of contributory negligence, the court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.”

The plaintiff’s evidence as to the circumstances of the collision

The plaintiff had worked as a roustabout for 23 years prior to obtaining employment with Australia Post in March 2007, as a postal delivery officer.
Her working day comprised commencing at 5am and spending several hours sorting mail at the Yass depot. The mail was then delivered by way of motorcycle delivery over a period of four and half to five hours.
On 13 December 2011, the plaintiff was approximately half way through her mail delivery run, which at that time she had been doing for four years. On that day, every household was receiving a certain brochure and therefore she was required to stop at each mailbox on her run. On Lead Street, Yass, that meant driving her motorcycle along the nature strip, which is clearly shown in the photographs (Ex A). She had delivered to the next door property and was travelling between number 34 and 36 Lead Street.
She gave the following evidence:

“Q. Did you go on your bike from 34 towards 36 between that tree and that hedge on this day?
A. Yes. Between, yes.
Q. As you were going along that strip, could you tell us what happened from, say, as you dropped the mail off at 34 up until when you had your accident?
A. I put the mail in the mailbox of 34 with the digital TV magazine. Grabbed the next digital TV magazine out, set it on top of my mail. Headed out wide of that driveway, blind driveways.
Q. When you say “headed out wide of that driveway,” if you’re looking at picture 2, if I give you a blue marker, could you, just with a--
A. I could probably show it better--
Q. --with a dot. If you could just dot your route, like a broken line?
A. On picture 2. Okay, so on picture 2, trees - just trying to see his mailbox. Yep.”

The plaintiff marked the photo with an ‘X’ to mark the point where her motorcycle and the car came into collision. She gave the following evidence:

“Q. Tell us what you noticed leading up to when you had this collision with the car.
A. I went out wide as we do.
Q. You went on the route you’ve shown in the picture.
A. Yeah, went on that route, looked down the driveway, seen the ute in the driveway. It was backed in. I looked down--
Q. When you say “backed in,” it had its front pointing out towards the street?
A. Its bonnet was facing out.
…
Q. What did you then notice, if anything?
A. I seen the ute down there. Looked down. Couldn’t see anybody in the ute. I proceeded to go across his driveway, looked back down as we do. And he was coming.
Q. When you first looked and you said you couldn’t see anyone in the ute, did it appear to you that the ute was stationary or moving?
A. Stationary. It wasn’t moving.
Q. You say you saw it coming?
A. I looked back the second time as we do, and it - I just seen the ute coming.
…
Q. You said he was coming. What did you then notice?
A. I was in the middle of the driveway by then. I seen him coming. We’ve been taught on our training to - you’re better off moving if you’re going to be hit. So I gunned the postie bike. I tried to - yeah, I just kept the bike moving and just hoped for the best, and the best wasn’t very good.
Q. You and he--
A. I was going to be hit.
Q. You and he came into contact?
A. There was no time.
Q. What part of you came into contact with what part of him?
A. The leg was jammed between the ute and the bike.
Q The leg, which one?
A. The left leg, sorry.
Q. When you said “between the ute and the bike,” which part of the ute was it jammed up against?
A. The bumper.
Q. When you say “the bumper,” you have a bumper that goes across the whole of the front and there’s a numberplate in the centre. By reference to the numberplate, are you able to say which part of the bumper?
A. The middle.
Q. So pretty well where the middle of the numberplate was?
A. Yeah, correct.
…
Q. When you were wedged in between the bumper and your bike, what happened in relation to you and your bike, if anything?
A. The bike fell over.
Q. Did he reverse as well?
A. The bike fell over. I pulled myself off the bike. There was fuel leaking out of the bike so he went to reverse his vehicle off the bike. The bike pedal got stuck underneath his vehicle so he drove that back in towards--
Q. Did that bend the bumper bar? The numberplate, I mean?
HIS HONOUR: Please, Mr Campbell, wait until she’s finished her answer.
CAMPBELL: Sorry.
WITNESS: Yeah, bent - the numberplate was bent on the ute because that’s where the pedal was stuck when he - and then he - tried to back off the bike so he could stand it - well, he could stand the bike up because there was fuel running out of the bike.”

In cross-examination, the plaintiff was asked about what she told a police officer who attended the scene as follows:

“Q. The police officer recorded that "I now require you to provide me a version of what happened" and then you answered:
"I had just delivered to 34, I was heading to 36 and looked down the driveway because it's a blind spot. There is a hedge that interferes with the view and I saw him and he saw me and we both didn't stop.”
It's got here "We skidded, then we hit. I went one way, he backed off the bike.” That's all true, isn't it?
A. Yes.”

She was then asked:

“Q. But you didn't tell the police officer, did you, when you answered the questions of what had happened, that you had gone wide, did you?
A. I was actually had been - they gave me a green stick so I was, you know, those things you suck on--
Q. Do you agree or disagree with me that in--
A. Well I have to--
Q. --the answers you gave to the police officer about what had happened, you did not say that you had gone wide?
A. If that's what it says, that's what I said, yes.
Q. When did you think you had gone wide? Is that something of recent thinking?
A. No, it's something that we do all the time.
Q. You understand there's a difference between something you do all the time and what you did on this particular occasion, don't you?
A. I'm not - it's a blind driveway. It's - we do it all the time.
Q. Please, do you agree or disagree with what I'm putting to you that there is a difference between doing something all the time and what in fact you did on this particular day?
A. I went wide.
…
Q. You didn't go wide that day, did you? Because if you had, you would have told the police officer?
A. I went wide that day.
Q. Why did you not stop, because you said here "I saw him, he saw me and we both didn't stop.” Why didn't you stop?
A. I went to the - I went out wide. I looked down the driveway, I seen the vehicle. To me there was no one in the vehicle. I proceeded to go across. You can't stop when you're in the middle of the driveway and you've got a car coming out at you, you're going to be hit.
Q. May I just remind you what you said "And I saw him and he saw me"?
A. I assumed.
Q. That's not what you said to the police officer?
A. I'm sucking on a green stick, I've just been hit by a car.
…
Q. They're your words according to the police officer. "And I saw him and he saw me and we both didn't stop.” That is what happened, isn't it, you agreed with that a few moments ago. Are you saying that's wrong now, are you?
A. No, we, we hit. I seen--
Q. You saw him?
A. I looked down the driveway, I seen a vehicle, the vehicle wasn't moving. I proceeded to go across the driveway, out wide. I look back down the driveway as a postie does. I seen the vehicle coming.
Q. So why didn't you stop?
A. I was in the middle of the driveway, I was going to be hit. We've been taught as posties if we're going to be hit, we're better off moving. I would have been hit if I'd stopped, my best chance was, was to keep moving and hope that he seen me in time.
Q. The best chance was, I suggest to you is upon you seeing him and "He saw me,” you should have stopped and allowed him to pass because clearly he was driving down his driveway, on your own observation?
A. He couldn't pass, I was in the middle of the driveway.
Q. You didn't say that to the police officer, that you were in the middle of the driveway, did you?
A. I'm not sure exactly what I said to the police officers on that day.
…
Q. You knew he was moving when you entered into the area of the driveway, didn't you?
A. No, I didn't.
Q. Because if you had paid proper attention, and reacted to him moving down the driveway, you should have stopped and let him pass?
A. He wasn't moving, the vehicle was not moving when I went across his driveway, to go across his driveway.
Q. What speed were you doing?
A. I'd have been lucky to be doing 5.
Q. From this evidence you gave to the police officer, it looks as if he was only doing 5 kilometres, is that right?
A. I have no idea what speed he was doing. It happened quick.
…
Q. Just as much your fault as it was his, wasn't it? That this accident occurred?
A. No.”

The plaintiff was then shown a sketch drawn in the police notebook which she denied drawing. The course of travel of her motorcycle in that sketch was a straight line. She was asked:

“Q. Do you see that on the sketch you are shown to be driving straight along the nature strip?
A. Yes.
Q. Doesn't show you, does it, going wide?
A. No.
Q. Are you sure you went wide?
A. Yes.
Q. Why did you tell the police officer that you went wide?
A. I don't know, I probably should have been more precise with what had happened. I didn't know it was all going to lead to this.”

In re-examination, the plaintiff gave the following evidence:

“Q. What was your usual practice in regards to your postie bike, in the area?
A. I would deliver mail to the house before that, like I'd go out wide on those driveways, come back down and deliver to the other driveway. If there was no mail for that mailbox, you, you had gaps, you'd go out and miss a couple of houses and come down another driveway.
Q. Was there anything different on this day that would lead you to do anything different from your normal and usual routine?
A. On that day, we were actually delivering the digital TV householders, which were large magazines which were being delivered to every single house. I delivered—“

The defendant’s evidence

The defendant gave evidence that he was driving a Toyota Hilux ute, but that it had bucket seats and he was “actually sitting low”. He was then asked:

“Q. So when you’re seated in the driver’s seat and you’re driving down that driveway at what point as you drive out are you able to see to your right-hand side anyone or anything coming down the nature strip on your right-hand side?
A. Not until the entire bonnet is out it takes a long time before I actually can see anything.”

The defendant then tendered a photograph of the driveway, Ex 3. He was asked:

“Q. What happens to the driving surface where that concrete strip driveway ends which looks to be right where you’ve got the fence and the end of the hedge, and then you go on to the nature strip, what’s the surface--
A. I have to massive potholes sitting there, I did at that stage. Basically the rain had washed away quite a bit of the, the road base and I had two massive potholes which acted like a speed hump.
…
Q. At the time of this accident in December 2011 what was the state of those potholes?
A. They were about three inches deep, they were very deep.
…
Q. As you’re driving out on this day, the day of the accident, knowing as you have explained where those potholes were, did you do anything about manoeuvring around or over those potholes, on the day of the accident?
A. I actually can’t manoeuvre any way otherwise the ute would hit the side of the fence, so actually have to go straight into the potholes so that--
Q. How do you do that, or how did you do that?
A. I have to slow down, I have to keep it slow, yeah.
Q. Do you remember what speed you were doing on the day of this accident?
A. Like it was only walking pace. My, my ute at the time, basically I have to basically ease my foot onto the accelerator because if I go too quick the ute used to stall. It’s basically a gutless ute.
…
Q. You’ve told the Court that you can’t see on your right-hand side--
A. Yes.
Q. --because of the hedge, so where are you looking as you are driving down your driveway ever approaching the nature strip?
A. I can’t remember.
Q. All right.
A. To be honest I can’t remember.
…
Q. Did you see the postal worker--
A. I basically saw her in front of me when I hit her.
…
Q. At what point had you reached driving your utility that you saw her in front of you at the moment of collision?
A. There was - I’d reached the pothole so the ute was - the bonnet was halfway up.
Q. When you saw her in that position what did you do if anything in the manner of driving?
A. Yes I reversed back, I hopped out of the car. She had just fallen to the ground and I’d rang triple-0 straight away.”

In cross-examination, the defendant gave evidence that the potholes had been in the driveway for three years prior to the accident. He had filled them in two years after the accident. He also gave evidence that he had to slow down whilst driving down the driveway because of the potholes, and he was aware that there could be children or other persons in the vicinity of his driveway. He had also seen people walking their dogs and postal workers there. It was not uncommon for him to be exiting the driveway somewhere around midday. He gave the following evidence:

“Q. Around that time you know don’t you that there is a real likelihood that members of the public could be frequenting the area to the front of your driveway?
A. I believe any time, could be any time.
Q. Based on your knowledge of your driveway you knew if they were coming from your right-hand side you wouldn’t be able to see them?
A. No not that close to the hedge, no.
Q. The correct thing for you to do would be to stop at the end of your driveway and look before going across the nature strip wouldn’t it?
A. Wouldn't that mean I'd have to hop out of my car and look and hop back into the car because it's literally - it's - it's completely blind?
Q. Well, when you get to the point of being able to see you would stop to make sure it is clear before you cross, wouldn't you?
A. My full bonnet would be out then.
Q. Well, you accept, don't you, that it was incumbent upon you as you were leaving a blind driveway to make sure that the area in front of you was clear?
A. Yeah, that's why I like driving at a slow - that's why I go at a slow pace, yes.
Q. So that you don't impact with someone who's there?
A. Mm.
Q. Correct?
A. Yes. Yes.
Q. Certainly that didn’t happen on this day, did it?
A. No, I went slow through.
Q. Well, you didn't see this lady, you say, until you came into contact with her?
A. No. No, I didn't.
Q. So she has been able to get to the very front of your vehicle, correct?
A. Yes.
Q. In fact, to the centre of it where the number plate was, correct?
A. Yes.
Q. You struck her in that position without even being aware of her general presence at all before?
A. Not to my knowledge, no.
Q. So that you really can't tell us how she got to where she got, can you?

A. No, I cannot.
Q. You can't tell us what route she had taken before she got there, can you?
A. No, I cannot.”

The defendant agreed that he had reversed back after the incident, but he did not know and could not accept that the bike was caught underneath his front number plate and dragged back as well. He agreed that he was moving at the time of impact and the reason he reversed was because the plaintiff was trapped under his vehicle. There was no re-examination.

Legal principles

In Gordon v Truong [2014] NSWCA 97, Basten JA (Macfarlan JA agreeing), set out the principles applicable in determining contributory negligence by application of s 138 of the MACA and ss 5R and 5S of the CLA as follows:

“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 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 defendant. 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.”

The correct application of these principles was further explained in Davis v Swift [2014] NSWCA 458 by Meagher JA (with whom Leeming JA agreed) as follows:

“23 Section 138(1) of the MAC Act provides 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 that section. The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act 1965(NSW) (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility.
24 The starting point is s 9(1) which provides that if the claimant ‘suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person’ the damages recoverable in respect of the wrong ‘are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’. That description of contributory negligence reflects the common law position that the claimant’s lack of care must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21].
25 The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; 59 ALJR 492 at 494 as follows:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

26 Section 138(3) is in different terms to s 9(1) and the other State provisions based on s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (UK). Whereas those provisions require the Court when assessing what is ‘just and equitable’ to have regard ‘to the claimant’s share in the responsibility for the damage’, s 138(3) provides:
(3) The 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.

27 Section 74(3) of the Motor Accidents Act 1988 (NSW) is in the same terms. In Nicholson v Nicholson (1994) 35 NSWLR 308 at 333-334, Mahoney JA suggested a reason for the use of the broader language. The concept of contributory negligence involves the plaintiff’s lack of care contributing to the damage. However, the effect of s 74(2) which is in similar terms to s 138(2), is to require a finding of contributory negligence in cases where the act or omission may not have caused or contributed to the damage claimed. Relevantly in that case, s 74(2)(c) required a finding of contributory negligence ‘where the injured person … was … not wearing a seat belt as required’ by law. That being the position, the broader language may have been used to allow the Court in such cases to recognise that it would be unjust and inequitable, where there was no such causation or contribution, to reduce the damages otherwise recoverable. The remaining members of the Court, Kirby P with Meagher JA agreeing, also held that the finding of contributory negligence required by s 74(2)(c) did not constrain the inquiry as to what was ‘just and equitable’ or prevent consideration of all of the circumstances, including whether the absence of a seat belt contributed to the damage claimed.
28 In a case that does not involve a finding of contributory negligence made under s 138(2) or deemed fault on the part of the owner or driver, an assessment of what is ‘just and equitable in the circumstances of the case’ will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek. See the discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180; 43 MVR 315 at [54] – [63]. In Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [157] Hayne J considered s 74(3) to require the undertaking of such a comparison: cf Kirby J at [133]].
29 Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant’s contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant’s position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant’s damages by reason of contributory negligence.”

In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (Barrett and Gleeson JJA agreeing) said as follows:

“161 The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case.
162 As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person’s own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a) – (d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 138(3) required the court to reduce the damages recoverable ‘by such percentage as the court thinks just and equitable in the circumstances of the case.’”

The defendant’s submissions on contributory negligence

The defendant conceded he bore the onus of proof to make good his allegations of contributory negligence, the particulars of which are set out above. The defendant submitted that a finding of 40% contributory negligence ought to be made against the plaintiff.
The defendant submitted that the plaintiff knew, and had known for a long time, this being her “usual run”, that as she approached the defendant’s premises she could not see through the large hedge in front of the neighbouring property. The onus was on the plaintiff to take greater care for her own safety because it was foreseeable that a vehicle could suddenly appear from the defendant’s driveway causing a foreseeable risk of harm to herself that was not insignificant. In those circumstances a reasonable person in her position would have taken precautions, which she failed to take.
It was submitted that as the defendant drove out of his driveway the plaintiff rode her motorcycle across his path and thus the collision occurred. The plaintiff chose to ride her motorcycle along the nature strip “thus closer to the hedge than would have been the case had she ridden further away”.
It was submitted that the Court would not accept the plaintiff’s account that she “went wide” as she had not told the investigating police that. Further, in her evidence she admitted that she did not stop, even after she had first seen the defendant’s vehicle “backed up” in the driveway.
It was submitted that on the plaintiff’s own version of events the defendant had discharged his onus of proof and had established contributory negligence as pleaded.
Further, it was submitted that her answers in cross-examination, to the effect that she could not recall exactly what she told the police, indicated that she had reconstructed the events. Objectively, the plaintiff’s version could not be accepted given that she first saw the defendant’s vehicle up the driveway with apparently no person in it. A collision then occurred in the middle of the driveway, and happened quickly. It was submitted that on her version there was not enough time for all of those events to have occurred as she gave evidence about.
The defendant submitted that the Court should find any one or more of the following facts as established, and that only one finding was required to make good its case in contributory negligence:

The plaintiff did not “go wide” or sufficiently wide enough to properly pass the driveway given she decided to ride her postal bike along the nature strip with her visibility totally obscured by the hedge;

The plaintiff failed to keep a proper lookout and exercise any or any proper care when travelling along the nature strip and crossing the driveway;

The plaintiff relevantly failed to observe the defendant’s vehicle as it approached;

The plaintiff was travelling at a speed which was excessive in the circumstances – she claimed 5 kph;

The plaintiff did not take any reasonable, or any care, when travelling past a blind driveway, particularly given her postal work experience at the accident location;

The plaintiff did not exercise reasonable care for her own safety by not taking evasive action and by driving into the defendant’s vehicle and thus avoid his vehicle – her postal bike being far more manoeuvrable than his utility;

The plaintiff did not warn of her approach, whether by sounding the horn or otherwise;

The plaintiff, in short, rode the postal bike in all of the circumstances inattentively.

Further, the defendant relied on the diagram in the police notebook, which showed the plaintiff travelling in a straight line along the nature strip, and not as her having “gone wide” as asserted by the plaintiff.
The defendant submitted that the defendant’s evidence should be preferred over that of the plaintiff where there is a conflict. The defendant further referred to the Court of Appeal’s decision in Townsend v O’Donnell [2016] NSWCA 288, distinguishing the application of the facts in this case from Townsend where the defendant was reversing down a driveway at a greater speed than the defendant was travelling here.
In oral submissions, the defendant submitted that it was the defendant’s obligation to be a reasonable but not a perfect driver, and Counsel asked rhetorically “How else is he going to exit?”, and emphasised the presence of the potholes of which he gave evidence, submitting they were an impediment to his driving whilst exiting the property.

The plaintiff’s submissions on contributory negligence

Learned Senior Counsel for the plaintiff submitted that the submission of the defendant to the effect that his obligation was that of a reasonable and not perfect driver, was misconceived. The defendant was a negligent driver because it had been conceded that he had breached his duty of care to the plaintiff.
The plaintiff submitted that the problem for the defendant was that he did not see the plaintiff until his vehicle struck her at a point indicated by an ‘X’ marked by the plaintiff on Ex A, photograph number 2. The plaintiff had not deviated from her duty to take reasonable care for her own safety. She had stopped at the letterbox at the neighbouring property, proceeded along the nature strip and swept wide to give herself a wide berth from the entrance to the driveway. No finding could be validly made that she failed to keep a proper lookout. She was also wearing a fluorescent yellow top when she was struck by the defendant’s vehicle.
It was submitted on behalf of the plaintiff that the incident took place very quickly. Further, the plaintiff relied on Regulation 74 of the Road Rules 2008, which provides as follows:

“74 Giving way when entering a road from a road-related area or adjacent land
(1) A driver entering a road from a road-related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line, must give way to:
(a) any vehicle travelling on the road or turning into the road (except a vehicle turning right into the road from a road-related area or adjacent land), and
(b) any pedestrian on the road, and
(c) any vehicle or pedestrian on any road-related area that the driver crosses to enter the road, and
(d) for a driver entering the road from a road-related area:
(i) any pedestrian on the road-related area, and
(ii) any other vehicle ahead of the driver’s vehicle or approaching from left or right.”

Learned Senior Counsel submitted that the Court would find that the plaintiff had taken a route whereby she swung wide of the fence line, across the driveway. Although she had not told the police that, she had, at the time of her police interview, been badly injured and was sucking on a painkilling substance provided to her by the ambulance officer (i.e. the “green stick”). Further, the police officer had not been called to give evidence.
The plaintiff also relied on the photographs in Ex A which showed the position of the vehicle and motorcycle after the incident. Those photographs showed that the plaintiff’s motorcycle was some distance away from the fence line, even taking into account the fact that it had been dragged closer to the fence line by the defendant’s vehicle following the collision, so as to free the plaintiff’s left leg.
In applying ss 5B and 5C to the plaintiff’s conduct in assessing contributory negligence, it was submitted that the plaintiff was delivering to every mailbox on that day. She was doing her job the way she always did it, and as she approached the driveway, she swung wide, looked as best she could, but did not see anything “irregular” and, “before she knows it, she’s struck”. It was submitted that it was unreasonable to require her to stop at every driveway to get off the bike and have a look to make sure it was clear.
The defendant’s departure from his duty of care was described as extreme in the sense that he never saw the plaintiff until impact. On that basis, if the court did find that the plaintiff contributed to her own injuries by breaching her duty of care, the defendant’s departure was much greater, and a notional percentage of perhaps 10% could be attributed to the plaintiff.

Determination of contributory negligence

The plaintiff was undertaking her regular round of postal deliveries on 13 December 2011, riding her Australia Post motorcycle on Lead Street, Yass. There was no formed footpath, and in order for her to effect her deliveries it was necessary for her to travel on the nature strip. Having made a delivery to number 34 Lead Street, she proceeded towards number 36. On the adjoining boundary of those properties was a large hedge which also extended along the front of number 34. Immediately adjacent to that hedge, was the driveway of number 36 Lead Street, as shown in the photographs in Ex A.

It was clear that the defendant was aware of the risk of colliding with someone on the nature strip because the hedge impeded his vision completely. He admitted breach of his duty of care. His breach of the Road Rules was relevant to the question of contributory negligence – see Verryt v Schoupp [2015] NSWCA 128 at [4] per Meagher JA.
The plaintiff was lawfully on the nature strip and, in the circumstances, travelling at an appropriate speed. I accept her evidence that as she came to the driveway, she took a route that took her away from the fence line of the property, which she described as a “wide berth”. The plaintiff indicated that route on Ex A, photo 2.
Notwithstanding that she did not mention that fact to the police, I accept the plaintiff’s evidence on that issue. The plaintiff was a witness of truth who gave her evidence with flattened effect and her credit was not challenged. Her evidence was consistent with the location of the vehicles following the incident, as shown in Ex A. The court must view such photographic evidence with caution, as an aide to understanding the evidence - see Blacktown City Council v Hocking [2008] NSWCA 144, However, it is clear that the plaintiff’s motorcycle, after it had fallen to the ground and then been dragged closer to the defendant’s property by the defendant’s vehicle, ended up in the middle of the driveway on the nature strip, some distance from the fence line of the defendant’s property. This was consistent with the defendant’s evidence, set out in [15] above, that it was not until the entire bonnet of his vehicle was out of the driveway that he could see anything.
The plaintiff was clearly aware that there was a foreseeable risk that a vehicle would emerge from the driveway. There was also a foreseeable risk of harm that any vehicle emerging from the driveway might collide with her motorcycle, thereby causing her injury. I accept the plaintiff’s evidence that she looked momentarily to her left and saw the vehicle in the driveway. She proceeded to cross the driveway because she formed the view that the vehicle was stationary.
Of the eight facts relied on by the defendant as establishing contributory negligence, I am only satisfied that the third has been established, namely, that the plaintiff relevantly failed to observe the defendant’s vehicle as it approached. She was obviously travelling at a speed which was not excessive in the circumstances and otherwise was taking reasonable care for her safety. However, having seen the defendant’s vehicle, she should have observed that it was moving. Had she done so, she would have been able to take precautions that a reasonable person in her position would have taken pursuant to s 5B(1)(c) of the CLA, namely, to stop her motorcycle, to take evasive action, or to speed up so as to avoid the defendant’s vehicle. However, according to her own evidence, she “looked back down” and failed to see that it was moving towards her.
Having made that finding, I accept the submission made on behalf of learned Senior Counsel for the plaintiff that evaluating the reduction in damages by reason of contributory negligence, as to what is just and equitable in the circumstances, has to be assessed in light of the defendant’s admitted breach of his duty of care, his breach of the Road Rules, his knowledge of the blind approach to the nature strip from his property, and the likely presence of persons, including children or postal workers, on the nature strip. Taking all of those matters into account, I find that it is just and equitable in all the circumstances to assess the plaintiff’s contributory negligence at 20%, and her damages will be reduced accordingly.

Damages

It is common ground that the plaintiff is not entitled to damages for non‑economic loss pursuant to MACA, and that her damages were confined to the heads of damage referred to in [3(2)] above. For that reason, the evidence referred to below is confined to evidence that is relevant to those various heads of damage.
The plaintiff left school after year 10 and became a roustabout. She worked for Mr Peter Downey for much of the 23 years she worked as a roustabout. In March 2007, the plaintiff commenced employment as a postal delivery officer at the Yass post office. She completed her three months probation period and was appointed to a permanent position.
She commenced work at the post office at 5am and generally finished about lunchtime or early afternoon. She also worked overtime as the mail delivery required.
The plaintiff usually worked on the same mail run which took her between four and half and five hours. Before embarking on that run, she would sort the various categories of mail into order for delivery. The mail would be taken first from ULD’s, which were like large cages. The letters were sorted by throwing into pigeon holes. In mid 2009, the plaintiff noticed her right shoulder was sore from that process and she consulted her local doctor, Dr Burn, who referred her for an ultrasound and physiotherapy treatment. She had no problems with her right shoulder for 20 months or so prior to the motorcycle accident. Prior to that accident, she also was active in all of her domestic chores, both inside and outside the home, and was a keen horse woman.
Prior to the accident, she also had an incident on her motorcycle at work where an errant bee got into her glasses and stung her on the face, causing her to hit her foot on the footpath. That occurred on 22 April 2010. She returned to normal duties a short time later.
As a result of her motorcycle accident, the plaintiff was certified unfit to work until after Christmas 2011. During her convalescence she had a reaction to her medication. She also developed an infection in the wound in her leg.
Following the accident, the plaintiff was treated by Dr Burn. She described her knee and leg as “major issues”, and her back and her right shoulder were sore. She was referred to Mr Mark Ritchard for physiotherapy.
In early 2012, the plaintiff was referred for a bone scan and she was then referred onto Dr Kulisiewicz, an orthopaedic surgeon, whom she saw on 10 February 2012. That doctor referred the plaintiff for an MRI scan which was carried out on 21 February 2012. She was recommended a surgical procedure which was approved by the insurer, and she underwent the surgery on 5 April 2012.
The plaintiff was off work and under the care of her GP and a rehabilitation provider, at the behest of her employer.
The plaintiff was using crutches to mobilise, which affected her back and her shoulder and neck.
The plaintiff enjoyed some improvement in the condition of her ankle following the surgery, however, that did not continue and she continued to suffer pain in her ankle joint, running up the front of her shin bone. She was referred for review by Dr Kulisiewicz on 30 May 2012. She continued to suffer constant pain in her ankle, particularly during physical activity. In July 2012, she was able to stop using crutches full time, but continued to use them some of the time. She was unable to do her domestic chores up until that time. Her partner was attending to all of the household chores that she previously carried out, and she gave evidence that he did that for about three hours per day for her.
The plaintiff returned to work in the second half of 2012 on light duties, working three hours per day every second day, doing bookwork only.
The plaintiff also wore a brace on her foot for support. She had trouble walking on uneven ground and experienced pain and swelling in the ankle joint
In October 2012, the plaintiff tried to ride her horse again, but was unable to trot.
When she first returned to mail delivery duties, she had trouble sorting the mail, as she could not stand on her feet for long periods of time, as her foot would swell up. She did deliveries by walking in the main street of Yass only.
On the advice of Dr Burn, the plaintiff attempted to ride her motorcycle at work in early 2013, but was unable to do so. The plaintiff continued to be unable to do her household duties. Vacuuming, for example, caused her significant back pain. She continued under the care of Dr Burn and reported her problems to him in April 2013. She was referred to a Dr Teoh, psychiatrist, in June 2013, and Dr Damiani, in respect of her right shoulder pain. She was also referred to a Dr Pik, a neurosurgeon, in respect of her back pain.
In May 2014, the plaintiff was referred back to Dr Kulisiewicz, who again sent her for an MRI scan on 17 June 2014. She was recommended a further surgical procedure and underwent that on 15 August 2014 at Canberra Private Hospital
Following the surgery, her ankle showed improvement, but she still had pain. She was again on crutches following the surgery which affected her right shoulder pain.
She eventually returned to work on light duties for a few weeks, but then she returned to full duties with restrictions. When she first returned to delivering mail by foot, she had problems with her ankle. By January 2015 she was trying to return to delivering mail on her motorcycle, however, that also caused problems to her left leg and ankle.
The plaintiff gave evidence that she had been examined by Dr Sekel, on behalf of the defendant in January 2015. At about that time, she had noticed a problem with “clicking” in her left ankle. She described this as follows:

“It just happens like it starts clicking and knocking and things and sometimes locks, so you’ve actually got to try and roll it, roll the ankle to stop it from – well, get it loose again. It was like it was locking on something.”

Dr Burn referred her back to see Dr Kulisiewicz in early 2015. On that occasion he raised the possibility of an ankle fusion procedure with her. There were, at the time of the hearing, no plans for her to have any further surgical treatment, however, the plaintiff gave evidence that if she was in the same amount of pain as she had been before, she would have no choice but to have the procedure. She described her left ankle at present in the following terms:

“It aches. If I have a big day it aches, I get that pain running up the front of the leg. It swells up. I pill up. I just try to keep going.”

The plaintiff described having “clicking” in the ankle from time to time, and swelling following activity. She had been working over the last 18 months, but had problems with the gears on her motorcycle. She sorted the mail in a standing position, but required a rest during that phase of the day.
In using her motorcycle, the plaintiff gave evidence that she had a problem putting the side stand down, and tended not to use it. She also had rest breaks during her mail delivery. She is restricted to rostered hours for her mail delivery, and any mail that she does not deliver, is delivered by other postal workers. Prior to her accident, she had always done her own run.
When asked how she felt about her future in doing postal delivery work, she answered:

“I don’t think it’s looking too good.”

The plaintiff did, however, push herself to do her work, but at times she relied on her workmates to do it for her.
The plaintiff was unable to carry out her household chores, as she had done prior to the accident. After work, she described her left foot and ankle as “burning”. Her back also felt sore and her shoulder would ache down to her wrist on the right arm. Her pain level was worse in winter. The plaintiff gave evidence that her partner had to do extra things around the house for her, on average spending two to three hours per day doing chores inside and outside the house. Her partner had his own physical problems, having suffered an injury at work and undergone surgery to his back and shoulder.
The plaintiff gave evidence that she would like paid assistance to do things such as mow the lawns and clean the bathrooms. Paid help for four hours per week would help her cope a lot better.
The plaintiff gave evidence that she and her partner still went to horse events on the weekend. She was still on restricted duties at work and was unable to earn additional money by working overtime. The plaintiff was keen to get back to her full duties at work. She had intended to retire at 65 or whatever the official retiring age was at her retiring time, whether that was 65 or 67 years.
The plaintiff continued to remain under the care of Dr Burn and accepted his recommendations for treatment, including physiotherapy and medication.
The plaintiff further gave evidence about a subsequent accident at work, when she was riding her motorcycle, when she crashed and fell off, hitting her left knee. She went to the hospital for x-rays and was also examined by Dr Burn. The effect of the accident wore off after four days.
The plaintiff was cross-examined at length about her involvement in the horse events. It is clear that she and her partner were dedicated to that activity prior to her injuries, and that she continued to derive some enjoyment from it. She still competed in some events, but had been a lot more competitive before the accident.
The plaintiff was cross-examined on the difficulties she had riding a horse. She described those difficulties as follows:

“I have a lot of problems getting on and off the horse, because the left leg is the leg that you put in the stirrup to mount your horse. So getting off and on the horse can be a problem. With, with riding a horse, you don’t always use reins to steer a horse, you do use your ankles. They call it like a leg aid. So if you touch a horse on one side, it will turn that way and vice versa. So that’s a problem.”

That evidence was submitted by Counsel for the defendant to be used as a comparison in respect of the plaintiff’s ability to work. She returned to work on light duties some nine months after her accident and in the year before the hearing, had tried to upgrade her work to full duties. It was put to the plaintiff that her main problem at work was riding the motorcycle for mail deliveries, because of the topography. She disagreed. She was then asked:

“Q: What is the main problem at work, for the last 12 months?
A: It’s everything. I think even when I’ve been taken off the bike, I still have the same problems.”

Those problems extended to mail sorting. The difficulty there she described as follows:

“Our mail comes in order in a grey tray which we – I think we looked at yesterday. So it comes in order of two, four, six, eight, for that street. If I have to throw the mail onto that top shelf continuously, my shoulder plays up. What I do is I throw some mail onto that top shelf then I grab a handful from the middle of my tub, that can be a bit awkward and then I’ll throw mail to may be the bottom shelf to give my shoulder a rest from the top shelf.”

The plaintiff was referring to her right shoulder. The plaintiff had received treatment in 2009 and 2010 from Dr Burn in respect of her shoulder, but could not recall the cause of that problem.
Following her motorcycle accident, the plaintiff agreed that her major problem was her left lower limb. After the surgery that took place on 4 October 2012, her ankle improved, but she was still having problems. From the time of her return to work in 2012 until the hearing, she had the same level of support from her colleagues at work. That support extended from sorting some of her mail and delivering part of her mail run. She agreed that her left ankle had improved over time. However, she had continued to have problems with her right shoulder and lower back.
The plaintiff identified one of her problems at work as being the terrain over which mail was delivered. As a rural town, Yass had minimal footpaths and some of the nature strips were rough, slippery when wet, or with long grass and loose gravel. The plaintiff agreed that she could deliver the mail by driving up each driveway, however, that would double the time it would take to deliver the mail for each run.
The plaintiff confirmed that she had intended to work to retirement age. Once this litigation was over, she wanted to try to keep working, but did not know if she could.
In re-examination, the plaintiff gave evidence that the conditions of her ankle, right shoulder and back improved and deteriorated over time. She had to pace herself with her activity and her working week was a full week, but only standard hours. She described full time work as being able to do overtime, like the other postal workers did. She said:

“A: I’d like to be able to do my full duties, like the others do. I want to be a full part of the team.
Q: Why can’t you be a full part of the team now?
A: I’m just unable to do it. The body won’t let me.”

In respect of working to retirement age, the plaintiff was asked:

“Q: In regards to the answer to my friend, you don’t know if you can work to 65. What do you mean by that?
A: Within my heart, I want to, but I just don’t think I will be able to. Like, I struggle now, some weeks. But I don’t want to let my workmates down. They cover me, but I, I just want to help them. I don’t how much longer I can do it.”

Evidence of Mr Mark Power

Mr Power was the manager of the Yass Australia Post Delivery Centre and had known the plaintiff for a number of years. She commenced working for him on 14 March 2007, however, he had previously worked with her in shearing sheds. He described her, during the mid-1990’s as being a very fit an active woman, working as a roustabout. He assessed her at the time she commenced working on 14 March 2007 with Australia Post, as very fit and very active.
Mr Power described the mail sorting system and gave evidence that, prior to her accident, the plaintiff participated fully in that system and had no difficulty doing the work involved.
Mr Power described his observation that the plaintiff had difficulty doing the sorting work now. He was asked:

“Q: How do you do that?
A: You can see the pain in her face, you can see her starting to limp as she’s turning. She often has to take a break, go and sit down, take weight off her leg for a while.
Q: How often does she do that?
A: A couple of times every day.”

Mr Power had observed her at work to take medication for her pain and he described the other workers as giving her assistance with her sorting. The plaintiff had been allocated the smallest of the three mail delivery runs. Mr Power described the plaintiff as a really good worker who, prior to her injury, was the first person to assist others. Prior to her accident, she did overtime almost every day. Overtime was allocated on the basis that the deliveries kept going until the mail runs were finished. Mr Power assisted the plaintiff now by doing that part of her mail run that involved deliveries on Main Street, Yass, which were done by walking. In respect of her deliveries done by motorcycle, she required assistance from other postal delivery officers “once a week, sometimes once a fortnight”, depending on mail volumes.
Mr Power described the plaintiff as one of the best delivery officers he had supervised. He confirmed that the delivery routes in Yass were over fairly rough terrain and could be heavy going. The plaintiff never complained about riding her motorcycle before her accident, but now she had to take breaks during her run. The plaintiff also had difficulties during winter when she was obviously in a lot more pain. He was asked:

“Q: How is she going, is she getting better, worse, or staying the same? How do you reckon she’s going?
A: I think she’s slowly getting worse. I don’t like to say it to her, but yeah, she’s definitely struggling.”

Mr Power did not report to his superiors in Canberra that she needed assistance. When asked why, he answered:

“A: Because I don’t want her to get into trouble. I don’t want her to end up losing her job.”

He confirmed that the plaintiff rarely did overtime because she was restricted to rostered hours. Prior to her accident, she never refused overtime. She had been placed on restricted duties by Dr Burn, her GP, but her rehabilitation was controlled by an Australia Post contractor named “Recover”.

Mr Power was asked about changes he had observed in the plaintiff socially, and he gave this evidence:

“Q: Have you seen any changes in her mood after the accident?
A: Yes, she just doesn’t seem happy, she seems withdrawn, she normally just doesn’t socialise much anymore. It’s very rare to even have her come around, you know, call around at my pace anymore, whereas she used to do that quite a bit.”

Mr Power gave evidence about the pay records of the plaintiff and a co‑worker. As an agreement was reached about her weekly loss, there was no need to set out that evidence.
In cross-examination, Mr Power was asked about overtime, which was shared equally among the three PDO’s based at Yass. It was hard to get relief workers in if one officer was away, however, the mail still got delivered. Mr Power described the assistance the plaintiff was given by her co-workers as not much of a problem, and one that resulted in more overtime for the other workers. There was no re-examination.

Evidence of Mr Peter Downey

Mr Downey had known the plaintiff for over 35 years. He worked with her for over 20 years when he was a shearer, and the plaintiff was working as a roustabout. He described her as follows:

“Rhonda was a girl, yeah work, work ethic was terrific, you couldn’t, well you couldn’t ask for anyone better than Rhonda in the shed. She’s – the extra bit of work she had to do or anyone had to do, she’d, she’s put her hand up and do it, yep.”

Mr Downey described the change in the plaintiff’s personality since her motorcycle accident. “She was a lot quieter and less social than she’d previously been”. Of the 100 roustabouts he had worked with, he ranked her in the top three. There was no cross-examination.

The evidence of Mr Mark Rattenbury

Mr Rattenbury has been the de-facto husband of the plaintiff for a period of over 30 years. He was a shearer who suffered a back injury requiring two surgical procedures, leaving him with ongoing disability which restricted his capacity to do heavier physical activity around the home. He now worked as a tipper truck driver around Yass. He gave evidence that prior to her motorcycle accident in December 2011, the plaintiff was physically well and did most of the domestic duties. She also looked after the garden and vegetable garden, including mowing the lawns. Mr Rattenbury had an interest in breeding birds, and he and the plaintiff both attended to that. Both the plaintiff and Mr Rattenbury owned horses and both were engaged in that activity together.
Mr Rattenbury gave evidence that after the plaintiff’s accident, he did the cooking, cleaning and general household duties, as well as helping the plaintiff shower. When asked to estimate how much extra time he spent doing things for her, his evidence was “an hour or more per day”. Prior to her surgery in April 2012, the time spent did “drop off”, however, it increased when she had her first and second surgery. Before the plaintiff’s second operation, Mr Rattenbury gave evidence that he was doing seven or more hours per week assisting with household duties that the plaintiff was unable to do.
Mr Rattenbury gave evidence that in the last six months prior to the trial, the plaintiff tried to do domestic chores or gardening, but could not complete tasks. They had not engaged any paid help at home, and when asked why, he gave this evidence:

“A: I’m a bit proud to do, have someone come in, like somebody to come in and clean up your mess, I don’t think it’s right at, at my age, I keep thinking, you know, I’m still able to do it in a capacity, so I don’t know, your house is your kingdom, I don’t want anyone in there sort of checking things out, so.
Q: If when this case is over there is money available for that, will you give way to your pride or not?
A: I probably will, yeah.”

Mr Rattenbury gave evidence that he observed the plaintiff after work to be tired, and in winter, the cold weather affected her more. He observed her left leg to be swollen at times after she had been to work and observed her to be “struggling to get around”.
In cross-examination, Mr Rattenbury agreed that he and plaintiff went to horse events, and had been to eight or 10 such events in the last 12 months. He and the plaintiff shared the meal preparation and shared the other domestic duties now.

The plaintiff’s medical evidence

The plaintiff was first taken to Yass District Hospital. X-rays revealed no fracture of her ankle and the wound was cleaned. She had continuing pain and swelling in her left lower leg, and the wound became ulcerated, for which she was treated at Yass Hospital. On 10 January 2012, a CT scan of her left lower limb showed no fracture. She was under the care of her local medical officer, Dr Burn, who sent her for a regional bone scan on 31 January 2012, which showed an abnormal uptake of the left medial ankle in the region of the talus and medial malleolus. The report noted that the appearances may represent a localised bony trauma or ligamentous injury/traumatic synovitis. The plaintiff was referred to an orthopaedic surgeon, Dr G Kulisiewicz, who referred her for an MRI scan of her left knee and ankle. That study showed, in respect of the left knee, a “subtle lateral tibial plateau oedema consistent with bone bruising and oedema involving the lateral head of the gastrocnemius muscle, likely to be due to a direct blow”. In respect of the left ankle, the study revealed an “osteochondral type lesion involving the medial aspect of the talar dome”.
At that time, the plaintiff had increasing pain, clicking and catching inside her left ankle. She was unable to progress from partial to full weight bearing. The plaintiff suffered pain in her ankle which was tracking up her left leg, restricting her range of movement. She was advised to stay full time on crutches.
On 5 April 2012, the plaintiff underwent a left ankle arthroscopy which revealed extensive scar tissue in the anterior resus of her ankle and an osteochondral defect involving the medial talar dome.
Following her surgery, the plaintiff suffered episodes of instability in her ankle whilst walking on uneven surfaces. She was recommended to gradually return to work in the second half of 2012, doing office duties. The plaintiff underwent physiotherapy treatment, and following her return to full duties with decreased hours, she suffered increased pain and burning in the left foot and ankle.
The plaintiff also suffered back pain, and on 13 December 2012, was referred for an MRI scan of her lumbar spine. That study showed degenerative changes with a broad based disc bulge at L4/5 level. Dr Burn was of the opinion that her back pain had been earlier masked by the analgesia she was taking. He reported that by April 2013 the plaintiff was not a lot better. She had left leg pain from her ankle to her knee, and at the end of the day, her left hip ached and she suffered low back pain. The plaintiff needed to sit down for a rest at work three to four times per day, and standing was worse than sitting or bike riding. He described her condition, 18 months following the motorcycle accident, as being a “cascade of injuries which have become revealed progressively”.
It was clear that the plaintiff had a strong work ethic and was determined to return to her work at an early stage. This was arranged through Dr Burn. His clinical note recorded her condition as at 13 June 2013 as follows:

“Sciatic pain continues
Ankle pain continues
Physio has suggested steroid into back lesion
Pain continues generally
Hips and all left side aches
Is she doing too much?
Maybe reduce motorbike hours – she has been doing up to 3.5 hours on the bike
Not doing parcels
She wants to go to work and wants to do some bike work to avoid having nothing to do
Rehab joined after 8 minutes.”

She was prescribed Panadeine Forte for her pain on that occasion.

The plaintiff was referred to Dr J Pik, neurosurgeon, who examined her on 5 August 2013. On examination, she walked with a non-specific limp. Lumbar flexion and extension were slightly limited, as was straight leg raising. Dr Pik was of the opinion that there was no significant nerve root compromise requiring surgery, however, he referred her for a CT SPECT study.
The plaintiff had been examined by Dr Bodel, orthopaedic surgeon, on 14 November 2012. At that time, her prognosis was guarded because of the intra articular nature of the fracture of the left ankle and her left knee. She went on to undergo a further arthroscopy of her left ankle by Dr Kulisiewicz on 15 August 2014, after an MRI scan on 16 June 2014. The operation report confirmed at that time that there was a previously debrided medial talar dome defect, a chrondoplasty was then performed and an arthrolysis of the interior resus was undertaken.
Dr Bodel examined her several times between 2012 and 2015. He ultimately diagnosed a talar dome lesion on the medial side of the left ankle, a minimally displaced lateral tibial plateau fracture in the region of the left knee and a rotator cuff injury in the region of her right shoulder. The plaintiff remained, at the time of his last report, unfit for all of the normal duties of a postal delivery officer. He was of the opinion that she would remain permanently incapacitated for work on a part-time basis. He noted that she was keen to remain at work, and that her co-workers were understanding of her, and helpful in managing her pain. He expressed hope that she would be able to continue in her modified role indefinitely.
The plaintiff was also examined by Dr Ben Teoh, consultant psychiatrist, who, in a report dated 30 September 2013, diagnosed her presentation as being consistent with a Chronic Adjustment Disorder, with Depressed Mood.

The defendant’s medical evidence

The defendant relied on a report of Dr R Lewin, psychiatrist, dated 30 April 2014, and a report from Dr R Sekel, dated 29 January 2015. Dr Sekel was required for cross-examination and his evidence is set out below.
Dr Lewin noted the history of injuries suffered by the plaintiff, and commented on the report of Dr Teoh dated 30 September 2013, and Dr Teoh’s diagnosis of Chronic Adjustment Disorder. Dr Lewin took a history of the plaintiff suffering anxiety whenever her work as a postal delivery officer took her past the place where the accident occurred. She reported enduring post‑traumatic symptoms of anxiety such as re-experiencing phenomena or dissociative symptoms, including sleep disturbance. On mental state examination, Dr Lewin found no evidence of a depressive condition. He opined a diagnosis of Depressive Reaction. At the time of his assessment in April 2014, there was evidence of an Adjustment Disorder, which was now in partial remission. There had been a gradual settling of her symptoms, and in Dr Lewin’s opinion, the prognosis was one of further gradual improvement. The plaintiff’s depressive condition was being maintained by an ongoing perception of pain and it was likely that the pattern of use of narcotic analgesia for that pain had formed a vicious cycle. On the issue of causation, Dr Lewis was of the opinion that the depressive reaction was as a result of the motor vehicle accident and the plaintiff’s associated physical injuries.
Dr Lewin was of the opinion that it would be appropriate for the plaintiff to undertake treatment in a rehabilitation setting. She should be referred to a clinical psychologist with expertise in pain management and advised to moderate her use of narcotic analgesia.
Dr Lewin noted that the plaintiff had returned to her usual occupation with a number of restrictions relating to her physical condition. There was no impairment to her capacity to work caused by her psychiatric condition, which had not stabilised.
Dr R Sekel is a general practitioner with experience in occupational medicine. In his report dated 29 January 2015, he noted that the plaintiff’s major complaints from the motorcycle accident on 13 December 2011 were her left ankle, right shoulder, “and to a small degree her back”. Dr Sekel stated that all three regions had been injured on earlier occasions, based on clinical records of the plaintiff’s local medical officer, Dr Burn. Dr Sekel recorded that in 2008 and 2009, the plaintiff had complained of pain in her upper back, and her right shoulder. The right shoulder complaint was described as “chronic and long-standing”, and was a work-related medical complaint caused by the alteration by Australia Post of the method by which postal workers had to throw letters into slots whilst sorting them.
Dr Sekel also referred to a note in the clinical records of Dr Burn dated 23 April 2010, concerning a motorbike accident. There was no further reference to either the accident or injury in the 20 months leading up to the subject motorcycle accident on 13 December 2011. Under the heading “Injuries from MVA on 13/12/11”, Dr Sekel, after noting the injury to her left, lower leg and ankle, stated:

“The recurrent pre-MVA pain in the right shoulder was first specifically recorded on 16/5/13, one and half years after the accident, when Dr Burn recorded ‘the right shoulder has been more painful, physio was deferred due to the need to work on the back’. On 19/12/11, Dr Burn had recorded that, in addition to the pain in the left ankle, there was ‘also pain in the shoulders, back and left knee’, but there was no further mention of either shoulder joint (i.e. specifically no mention of the right shoulder) for the next one and half years.’

Dr Sekel set out in some detail the treatment the plaintiff underwent for her injuries. Under the heading “Diagnosis and Opinion”, Dr Sekel stated that the plaintiff had “well documented evidence of a significant injury of the talar dome in the left ankle”. However, Dr Sekel went on to opine that the plaintiff’s complaints of injuries to her right shoulder, right wrist, low back, left knee and left hip, were not causally related to the motorcycle accident.
Dr Sekel opined that the injury to the plaintiff’s left ankle had very successfully been improved by the two operations she underwent on 5 April 2012 and 15 August 2014. She had been left with a constant mild ache in the left ankle. She had, however, suffered acute pain and locking in her left ankle, two months following that second operation, and also the day before his examination of her. It was his opinion that that pain was caused by a small loose body temporarily caught between the two bones. If that condition were to persist, there was, in Dr Sekel’s opinion, “a small possibility that she might require yet a third arthroscopic procedure, on this occasion to attempt to detect and remove that small, loose body, but noting that the search for small, loose bodies is sometimes unsuccessful”.
Dr Sekel was of the opinion that the plaintiff’s ankle injury amounted to a permanent, significant, abnormality to her ankle and the restriction to her work may well be required permanently.
Under the heading “Domestic Assistance”, Dr Sekel opined that the plaintiff was unfit for most housework in the initial six weeks after each of the two operations, but over the following six weeks after each operation, she would have been fit to gradually upgrade to a normal pre-accident level of domestic chores.
Dr Sekel was cross-examined about his qualification. He has no other tertiary qualification other than an MBBS from Sydney University. When asked what his associated qualifications were, he answered:

“I was in medicine and in occupational medicine before there was a, what was originally a college now a faculty of occupational medicine.”

He had practised in that area for over 40 years, treating people who are injured at work.
Dr Sekel gave evidence that if it was desirable for working persons to ingest prescription medications to mask symptoms of pain so they could go to work, as follows:

“Q. It’s undesirable isn’t it to require a person to ingest prescription medication to mask symptoms of pain so that they can go to work?
A. That’s not undesirable, that’s very much a part of one of the modes of treatment that we offer of course, or that all doctors offer.
Q. In the short term?
A. Not in the short term, in, in, in - at all times if we--
Q. But you wouldn’t recommend that in the long term that a person be provided with painkilling medication to mask their symptoms so they can perform physical work would you?
A. I certainly would yes.”

Dr Sekel went on to give evidence that it was a matter of degree as to the effect of physical work on an injured worker, and to what extent the process of work aggravated the worker’s level of pain and symptomology. A treating medical practitioner was the best person to assess those matters.
Dr Sekel had assessed the plaintiff on one occasion only, two years prior to the trial. In relation to the episode of painful locking that ocurred one day before that assessment, Dr Sekel said:

“It’s a very common occurrence that before a claimant attends me for an independent medical examination that they state they have been much worse the last day or two, and it’s much worse than it had been before, et cetera …”

Notwithstanding that, he accepted, “on the balance of probabilities”, that she had suffered that episode. He confirmed the opinion expressed in his report that if she continued to suffer the symptoms she described in her left ankle, then a third arthroscopy would be required in an attempt to find the loose body he referred to. Dr Sekel said he would defer to the opinion of a surgeon in assessing that. He also agreed that, given the history of ankle injury followed by surgical procedures here, being required to walk regularly across uneven ground would predispose the plaintiff to significant discomfort which would require modifications to her employment, which might well be permanent. Similarly, the physical movements in riding a motorbike during her employment, and being on her feet for lengthy periods of time, should not be part of her long-term employment.
Dr Sekel was of the opinion that it would be preferable for the plaintiff not to take Tramal, which was a narcotic medication. He would not agree with the proposition that if her own doctor reasonably came to the view that it was necessary to prescribe Tramal to control her symptoms, that she should not be working. The same reasoning applied to the plaintiff’s prescription of Panadeine Forte.
Dr Sekel agreed, based on his experience, that once this type of case was completed, the opportunity for an employee to continue with light duties disappeared.
Dr Sekel’s opinion in relation to the injury to the plaintiff’s right shoulder being unrelated to the motorcycle accident, was based on the absence of any complaint in respect of her right shoulder for one and half years after the accident. Dr Sekel was challenged about that opinion, and his description of “recurrent pre-MVA pain in the right shoulder”. Dr Sekel conceded that for 20 months before the motorcycle accident there was no complaint of any ongoing shoulder pain, nor any treatment for it. It was also conceded that it was very important that the plaintiff had been able to perform her full work duties during that 20 months period. Also important was that all other aspects of the plaintiff’s normal life had been undertaken without restriction during that time.
Dr Sekel conceded that a degree of force was involved in the motorcycle accident. The pathology, including an MRI report, demonstrated degenerative changes in the left acromioclavicular joint. When asked about the plaintiff’s complaint to her general practitioner on 19 December 2011 of pain in the shoulders, Dr Sekel answered:

“A: What - a generalised ache from falling over that is not irrelevant. That would be muscular pain. The sort of condition that you are now alluding to that was diagnosed whenever that was, one and a half or two years later or ‑ that is quite different from a muscular strain because if the fall had actually caused a significant permanent or degrading condition of the degenerate acromioclavicular joint, pain locally in that sight would have been reported and recorded many times over and treated and investigated, and none of that was correct. So that the general diffuse pain that somebody might have for falling off a motorbike, and having muscular pain for some days after that, that’s normal. That’s - that would be expected if you have a football injury or any, any such thing and fall over.”

Dr Sekel accepted that the plaintiff suffered a significant injury to her left lower limb that required immediate medical attention, but not that her medical advisers were concentrating on treating that injury during the first period of time following the accident.
Dr Sekel agreed that if the plaintiff’s symptoms persisted, then it would be reasonable for her to consult with her general practitioner, and with a specialist as advised by that doctor. He also agreed that if there were continuing symptoms, there would be a need for radiological investigations, including MRI scans and CT scans, and that it would be reasonable for the plaintiff to undergo physiotherapy to provide relief when flare-ups of pain occurred.
Dr Sekel also agreed that the plaintiff’s ankle injury involved the intra-articular surfaces of the ankle, and that predisposed her to a greater risk of the onset of arthitic changes. That in turn increased significantly the risk of a need for an arthrodesis or fusion of the ankle joint.
If that were the case, Dr Sekel agreed that it would be reasonable for the plaintiff to avoid heavier aspects of housework, maintenance and cleaning, together with being on her feet for long periods of time cooking and being on uneven ground. If she underwent a fusion procedure, her ankle would be compromised because flexibility of the joint would be absent.

The defendant’s submissions on damages

The defendant relied on the following schedule of damages:

Past out of pocket expenses:

Medical expenses

Rehabilitation expenses

$50,897.00

$39,076.00

Future medical expenses

$10,000.00

Past economic loss

$95,000.00

Future economic loss

$150,000.00

Past Care

$10,000.00

Future Care

$35,000.00

Total

$370,000.00

Counsel for the defendant accepted that the plaintiff should be compensated for her left ankle injury and the sequelae arising therefrom, including the prospect of future surgery. However, the defendant submitted that the plaintiff’s complaint of injury to her shoulder was not causally related to the motorcycle accident on the basis that there was no record of complaint by the plaintiff to her treating doctor for a period of 18 months following the accident. Further, various treating doctors had referred to the left shoulder rather than the right shoulder.
The defendant submitted that there was no evidence that the plaintiff should be compensated for a shorter working life. The plaintiff was a stoic person who wanted to return to work and to keep working, and she had a discrete ongoing net weekly loss of $220.00. It was submitted that the plaintiff’s Senior Counsel did not put to Dr Sekel, that, if the plaintiff underwent a fusion operation, she would finish work earlier than 67 years of age. The defendant had allowed for the future a lump sum of $150,000.00. That included any future superannuation entitlements as claimed at 14%.
In respect of paid care, the defendant conceded an hourly rate of $40 per hour. However, what was in issue was whether a need had been established for such paid care, and for what time period. Counsel for the defendant submitted that the plaintiff’s evidence to the effect that, “two hours for lawn and four hours would be nice for cleaning”, did not satisfy a finding that such care was in fact needed. The defendant allowed a lump sum of $10,000.00 for past care, and $35,000.00 for future care.

The plaintiff’s claim for damages

The plaintiff relied on the following schedule of damages:

Past economic loss

$108,196.00

Past out of pocket expenses:

Medical expenses

Rehabilitation expenses

$50,897.00

$39,076.00

Past gratuitous attendant care services

$54,684.00

Future loss of earning capacity:

(a) $220 per week to age 67 less 15% for vicissitudes

(b) $850 per week deferred by 3 years

$112,761.00

$330,847.00

Future paid attendant care services – 3 hours per week

$108,240.00

Future Treatment expenses - $60 per week

$54,120.00

Future surgery

$30,000.00

Past future superannuation loss

11% on $108.196.00

$11,900.00

Fox v Wood agreed at

$10,000.00

Total

Plus - Future superannuation losses to be calculated

$910,721.00

Learned Senior Counsel for the plaintiff confined the plaintiff’s claim for past gratuitous care services to 7 hours per week from the date of accident to the date of trial, as particularised. He relied on the evidence of the plaintiff and that of Mr Rattenbury as to the assistance the plaintiff required as a result of her injuries, and in particular her ankle injury. That assistance was provided by Mr Rattenbury, who himself was physically compromised as a result of a work injury.
It was submitted that the need for paid future care was made as a result of the plaintiff’s ongoing incapacity, but also based on Mr Rattenbury’s own incapacity and his evidence as outlined above, that if money was available for that assistance, he would agree to it being provided. The plaintiff confined her claim for paid care into the future to 3 hours per week, which was reasonable in the circumstances.
The plaintiff’s claim for future economic loss was based on a diminishing capacity to cope with the rigours of her job as a postal delivery officer. Being on her feet for long periods of time, riding the motorcycle and having to deal with uneven ground, had a cascading effect on her, having regard to her evidence that, at the end of each day, she had to put her leg up, that she was in pain, and her left ankle was swollen. The plaintiff’s unchallenged evidence was that she would have to rest during the course of the day, and that that would accumulate during the course of a working week.
It was submitted that there were many aspects of the plaintiff’s work that she could now not do as a result of her injuries. She has been able to continue in her employment because her employer had allowed her to do so, although she is not fit to do the job. The evidence of Mr Power confirmed her ongoing problems at work.
The plaintiff’s claim for future economic loss based on a deferral of 3 years until she was fully incapacitated, was on the basis that she was not going to get another job now, having suffered significant injuries, relying on Mead v Kerney [2012] NSWCA 215. It was agreed that any loss of superannuation should be calculated at 14% of the nett figure for economic impairment into the future.
The plaintiff’s claim for future treatment comprised a claim of $60.00 per week to represent her need for regular review by her general practitioner, annual review by a specialist, radiological expenses, physiotherapy and gymnasium expenses, together with her medication needs. In addition, the plaintiff was entitled to a lump sum representing the risk that she would have to undergo further surgery, either by way of a third arthroscopy, or an arthrodesis or fusion operation, in accordance with Malec v J C Hutton Pty Limited (1990) 169 CLR 638.

Assessment of damages

The plaintiff was an impressive witness whose credit was not successfully impugned in any way in cross-examination. She was born on 5 April 1967 and was aged 44 years at the date of injury, and has just turned 50 years of age. After leaving school, she always did physical work as a roustabout at shearing sheds until she commenced her employment with Australia Post in 2007. She was a fit and active woman who had a keen interest in horses and horse events. She was also in a long term relationship with her partner, and attended to most of the household duties, house maintenance and gardening in their home. Her partner had suffered an injury at work for which he had undergone several surgical procedures on his back. He was therefore limited in terms of heavy physical activities that he could carry out.
Since the accident, the plaintiff has been unable to return to her full time duties. She has, since late 2012, continued to work in her role as a postal delivery officer, however, with significant restrictions on her work. She has to rest at times during the mail sorting phase, as a result of being required to remain on her feet for several hours, and also the manner in which the mail is sorted, which involved using her right upper limb at shoulder height. She also has difficulty with the motorcycle riding involved in delivering the mail, and is restricted in the hours she can work each day.
It is not in issue that the plaintiff’s ankle was injured in the subject accident, and that the plaintiff has required two sets of surgery on that joint. I also find that the plaintiff suffered injuries to her right shoulder and lower back in the incident. I do not accept the defendant’s submission that those injuries were not causally related to the subject accident on the basis that there was no record of treatment for them for a period of 18 months following the accident. Rather, I accept that the plaintiff did complain to her doctor within a few days of that accident, of generalised pain to her shoulders and back, and I accept Dr Burn’s opinion that the extent of those injuries was masked somewhat by her analgesic regime undertaken in respect of her right ankle. That regime included the plaintiff being prescribed Tramal, a narcotic medication, and Panadeine Forte.
Further, the plaintiff’s shoulder injury was aggravated by her extended use of crutches as a result of the left ankle injury. I accept further, Dr Burn’s opinion that there was a cascading of the injuries and their effect on the plaintiff over time. I therefore reject Dr Sekel’s opinions to the extent that they are contrary to the above findings. Dr Sekel examined the plaintiff on one occasion, whereas Dr Burn treated the plaintiff for many years before and after the motorcycle accident.
The plaintiff has demonstrated great stoicism in returning to work and endeavouring to carry out her duties. She is somewhat protected in her workplace, however, by the local management at the Yass Postal Depot, according to the evidence of Mr Power, and by her co-workers. She is often unable to complete her mail run, and therefore was unable to earn the overtime that she earned prior to her injury.
The plaintiff’s past economic loss is defined by the workers compensation payments that she has received and the amount claimed by the plaintiff is reasonable. I therefore allow the sum of $108,200.00 (rounded out) for past economic loss, together with past superannuation losses of $11,900.00 as claimed.
The plaintiff’s past treatment expenses are also uncontroversial, having been paid by the workers compensation insurer. They include past medical expenses of $50,897.00, and rehabilitation expenses of $39,076.00. I therefore allow the sum of $90,000.00, rounded out, for past treatment expenses.
I am satisfied that the plaintiff has passed the threshold for an award of damages for past gratuitous care contained in s 141B(3) of MACA, in that the evidence established that she required care for at least six hours per week and for a period of at least six consecutive months following the accident. In fact, the evidence established that during that time, a far greater amount of care was provided by her defacto spouse (particularly following her two surgeries), however, the plaintiff’s claim has been confined to seven hours per week, and I therefore allow that sum for a period of 283 weeks at $28.00 per hour, for seven hours per week. There will therefore be an award for that amount rounded out to $55,500.00.
For future attendant care services, I am satisfied that the plaintiff has established the requisite need for those services to enable the heavier household tasks, house maintenance, and gardening tasks to be carried out. The claim for three hours per week is a reasonable one, and I therefore allow the plaintiff’s claim in the sum of $108,200.00.
The plaintiff has also established a need for future treatment, comprising regular review by her local medical officer, review from time to time by a specialist on referral from her local medical officer, physiotherapy and like treatment, radiological examinations, and prescription medications. There has been no precise figures placed on those various components and the plaintiff’s claim for $60.00 per week for the balance of her life is not unreasonable. However, the need for those services will diminish over time, and I allow $45.00 per week, which will result in an award of $40,500.00. To that should be added a sum, having regard to the risk of the plaintiff requiring a further surgical procedure to her ankle. The sum claimed by the plaintiff of $10,000.00 for the risk of such surgery and all of the attendant services required, is a reasonable one. The award for future treatment expenses will therefore be $50,500.00.
There is no issue between the parties that the plaintiff has a demonstrated loss into the future of $220.00 per week. After an allowance for vicissitudes of 15%, that represents a loss to age 67 of $112,761.00. The plaintiff, however, also claims loss for total incapacity for work from age 53 to age 67. Pursuant to s 126 of MACA, the court is required to be satisfied that the assumptions underlying the plaintiff’s future loss of earning capacity accord with her most likely future circumstances, but for the injury. Further, pursuant to s 126(2), in determining the amount of any such award of damages, the court is required to adjust any amount of damages for loss that would have been sustained by reference to the percentage possibility that the events concerned might have occurred but for the injury. The court is also required to state the assumptions on which the award was based and the relevant percentage by which such damages were adjusted.
As set out above, the plaintiff has demonstrated marked stoicism in her determination to return to work, and to keep working, notwithstanding her ongoing residual disabilities. I am satisfied, given that the evidence establishes that there is a prospect of developing degenerative change in her ankle joint and ongoing pain, that the plaintiff will be required to give up her present physical duties prior to her reaching retirement age at 67 years, particularly if she requires an arthrodesis, or fusion of her left ankle. When she does so, she will have difficulty obtaining other work, given that her whole working life has been engaged in unskilled heavy work, i.e. as a roustabout and postal delivery officer, and she has no other qualifications or experience for other employment. The Court of Appeal’s decision in Nominal Defendant v Livaja [2011] NSWCA 121 informs the correct approach, at [65]:

“Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all of his or her life in a skilled or semi‑skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation.”

There was no evidence before me as to the employment possibilities in the township of Yass, where the plaintiff has lived all of her life. The onus is on the defendant to adduce evidence of what the plaintiff is capable of doing and what jobs are open to her – see Mead v Kerney, supra at [25] - [27]. Notwithstanding its proximity to the national capital of Canberra, those prospects are likely to be somewhat limited, given the plaintiff’s employment history. The court is, of course, entitled to make an assessment without evidence of the actual employment prospects – see Dessent v Commonwealth of Australia (1977) 13 ALR 437. Further, the plaintiff would have to compete with able bodied persons for any employment for which she was suited, a process in which she could be, on each and every occasion, entirely unsuccessful – see Wade v Allsopp (1976) 10 ALR 353 per Stephen J (as he then was) at p 361.
The principles guiding the assessment of future economic loss are set out in Kallouf v Middis [2008] NSWCA 61 at [46] – [61]. I am satisfied that the plaintiff has suffered a diminution of her earning capacity in the circumstances that is or may be productive of financial loss – see Medlin v The State Government Insurance Commission (1995) 182 CLR 1. I am further satisfied that that loss cannot be calculated with precision arithmetically and the proper approach is to award the plaintiff a lump sum – see Penrith City Council v Parks [2004] NSWCA 381. The appropriate sum, in my view, is $150,000.00, and I round out the total award for future impairment to earning capacity to $260,000.00. To that should be added the plaintiff’s loss of future superannuation earnings in the sum of $36,400.00.
I therefore assess damages as follows:

Past economic loss

$108,200.00

Past superannuation losses

$11,900.00

Past treatment expenses

$90,000.00

Future treatment

$50,500.00

Past gratuitous attendant care services

$55,500.00

Future paid attendant care

$108,200.00

Future loss of earning capacity

$260,000.00

Future superannuation losses at 14%

$36,400.00

Fox v Wood as agreed

$10,000.00

Total

$730,700.00

Conclusion and Orders

The plaintiff’s damages are therefore assessed in the sum of $730,700.00. From that amount, 20% must be deducted for the plaintiff’s own contributory negligence. The plaintiff’s damages will therefore be:

Damages as assessed $730,700.00

Less 20% 146,140.00

___________

Total $584,560.00

I note from that sum the plaintiff will be required to repay her employer the sum of $187,410.00 for compensation, medical and rehabilitation expenses paid, less 20% - see Hickson v Goodman Fielder [2009] HCA 11.
I therefore make the following orders:

Verdict and judgment in favour of the plaintiff against the defendant in the sum of $584,560.00.

The defendant is to pay the plaintiff’s costs on a party and party basis up to 11am on 18/7/14 and thereafter on an indemnity basis.

The exhibits are to be returned forthwith.

**********

Decision last updated: 11 April 2017

Medium Neutral Citation:	Rhonda Payne v Lee Ronald Witt [2017] NSWDC 78
Hearing dates:	13 December 2016 to 15 December 2016, 15 and16 March 2017
Decision date:	11 April 2017
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the plaintiff. For orders see [165]
Legislation Cited:	Civil Liability Act 2002, ss 3B, 5R, 5S Motor Accidents Compensation Act 1999 (NSW), ss 126, 138, 141B Road Rules 2008, reg 74
Cases Cited:	Blacktown City Council v Hocking [2008] NSWCA 144 Davis v Swift [2014] NSWCA 458 Dessent v Commonwealth of Australia (1977) 13 ALR 437 Gordon v Truong [2014] NSWCA 97 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Hickson v Goodman Fielder [2009] HCA 11 Kallouf v Middis [2008] NSWCA 61 Malec v J C Hutton Pty Limited (1990) 169 CLR 638 Mead v Kerney [2012] NSWCA 215 Medlin v The State Government Insurance Commission (1995) 182 CLR 1 Nominal Defendant v Livaja [2011] NSWCA 121 Penrith City Council v Parks [2004] NSWCA 381 Townsend v O’Donnell [2016] NSWCA 288 Verryt v Schoupp [2015] NSWCA 128 Wade v Allsopp (1976) 10 ALR 353
Category:	Principal judgment
Parties:	Rhonda Payne (Plaintiff) Lee Ronald Witt (Defendant)
Representation:	Counsel: D Campbell SC/I Bradfield (Plaintiff) D Ronzani (Defendant) Solicitors: RMB Lawyers Hunt & Hunt
File Number(s):	13/288343
Publication restriction:	Nil

Past out of pocket expenses: Medical expenses Rehabilitation expenses	$50,897.00 $39,076.00
Future medical expenses	$10,000.00
Past economic loss	$95,000.00
Future economic loss	$150,000.00
Past Care	$10,000.00
Future Care	$35,000.00
Total	$370,000.00

Past economic loss	$108,196.00
Past out of pocket expenses: Medical expenses Rehabilitation expenses	$50,897.00 $39,076.00
Past gratuitous attendant care services	$54,684.00
Future loss of earning capacity: (a) $220 per week to age 67 less 15% for vicissitudes (b) $850 per week deferred by 3 years	$112,761.00 $330,847.00
Future paid attendant care services – 3 hours per week	$108,240.00
Future Treatment expenses - $60 per week	$54,120.00
Future surgery	$30,000.00
Past future superannuation loss 11% on $108.196.00	$11,900.00
Fox v Wood agreed at	$10,000.00
Total Plus - Future superannuation losses to be calculated	$910,721.00

Past economic loss	$108,200.00
Past superannuation losses	$11,900.00
Past treatment expenses	$90,000.00
Future treatment	$50,500.00
Past gratuitous attendant care services	$55,500.00
Future paid attendant care	$108,200.00
Future loss of earning capacity	$260,000.00
Future superannuation losses at 14%	$36,400.00
Fox v Wood as agreed	$10,000.00
Total	$730,700.00