Saleh v Faddoul

[2015] NSWDC 184

District Court

New South Wales

Medium Neutral Citation:	Saleh v Faddoul [2015] NSWDC 184
Hearing dates:	27, 28, 29 and 31 October 2014; 19 November 2014 and 30 January 2015; written submissions (5 February 2015)
Date of orders:	17 April 2015
Decision date:	17 April 2015
Jurisdiction:	Civil
Before:	Gibson
Decision:	(1) Judgment for the defendant. (2) Plaintiff to pay the defendant’s costs. (3) Liberty to apply in relation to costs, which liberty is to be exercised within 21 days. (4) Exhibits retained for 28 days.
Catchwords:	TORT - personal injury - motor vehicle accident - conflicting liability evidence - contributory negligence - damages-
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5R and 5S
Cases Cited:	Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393 Dungan v Chan [2013] NSWCA 182 Hawthorne v Hillcoat (2008) 51 MVR 523 Manley v Alexander (2005) 223 ALR 228 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Marien v Gardiner [2013] NSWCA 396 Mundy v GIO of NSW (Supreme Court of NSW, Spender AJ, 5 June 1995) New South Wales v Moss (2000) 54 NSWLR 536 Vale v Eggins [2006] NSWCA 348
Category:	Principal judgment
Parties:	Plaintiff: Abbas Saleh Defendant: George Faddoul
Representation:	Counsel: Plaintiff: Mr G Hickey Defendant: Mr D Ronzani Solicitors: Plaintiff: Slater & Gordon Lawyers Defendant: Curwoods Lawyers
File Number(s):	2013/277586
Publication restriction:	None

Judgment

1. The plaintiff by Statement of Claim filed on 13 September 2013 brings proceedings for damages arising out of the circumstances in which, while he was riding his motorcycle along Edgar Street, Condell Park NSW, the defendant reversed his motor vehicle onto the roadway, with the result that the plaintiff’s motorcycle collided with the rear driver’s side of that vehicle.

2. The plaintiff particularises that the defendant was negligent in that he:

1. Failed to keep a proper lookout;

2. Failed to brake so as to avoid collision with the plaintiff;

3. Failed to steer or manoeuvre his vehicle so as to avoid collision with the plaintiff;

4. Reversed at a speed which in the circumstances was excessive;

5. Failed to sound a warning to the plaintiff so that he might have avoided the collision;

6. Reversed his vehicle from a private residence when it was not safe to do so.

3. The plaintiff’s injuries and disabilities are set out in the section below on quantum of damages.

4. After I reserved my decision, an application to reopen was made by the plaintiff in relation to a transcript error. This required the proceedings to be adjourned and for further submissions to be made following the provision to the parties of a report from the Manager of Reporting Services, Mrs Maureen Barrell. The defendant seeks costs in relation to this delay.

The issues for determination

5. The issues for determination have been helpfully summarised by the defendant, and agreed to by the plaintiff (T 3), as follows:

1. What is the content and ambit of the defendant’s duty of care (if any) in all of the circumstances?

2. Did the defendant breach his duty of care in all of the circumstances?

3. If there was a breach of duty of care by the defendant, did that breach cause the accident?

4. Is the plaintiff guilty of contributory negligence?

5. If the plaintiff is guilty of contributory negligence, what percentage reduction applies?

6. I also note that issues of quantum arise.

The circumstances of the accident

7. The plaintiff, who was born in 1994, was aged 17 years and 10 months at the time of the accident, and was in Year 12 at school. Although the motorcycle was not registered in the plaintiff’s name, it is not in dispute that it was a gift from his brother a few days before the accident, in circumstances where there had been insufficient time to transfer ownership to the plaintiff. He held a learner’s permit and had ridden the bike “most days” (T 8) since the bike was given to him, but gave no evidence of having had any lessons or prior experience in riding this particular bike, although he claimed prior riding experience.

8. The plaintiff described the accident as follows:

“A. I was riding sort of down towards the hill and I was riding about 50 kilometres and then I suddenly see a ute reversing which reversed, like lights coming out of the driveway.  I didn't really have much time to do anything so I had ‑ I went straight into the back of his ute and then after that I don't remember, like I just blanked out.” (T 9)

9. He first become aware of the ute coming out onto the roadway as follows:

“A.  Well, it was just like all of a sudden, he just ramped out and then I just seen the back of the ute with reverse lights on and I couldn't really do much on the motorbike so hoped for the best.” (T 9)

10. He was asked about the other vehicles in the street:

“Q.  Were there parked cars in the street at the time?

A.  Yes, there was a few.  There was a few parked cars.

Q.  Anyway, you've indicated that you struck the vehicle and that's your last recollection for some short period of time, is that correct?

A.  Yes.

Q.  Do you remember much else about at the scene of the accident?

A.  No, not that I can remember.” (T 9)

11. This description is of some importance, since the plaintiff would later claim that his vision of the utility reversing was blocked by a van which was parked beside the road.

12. The plaintiff gave a statement to the police which was read into evidence by Constable Karpenko at T 102-103 as follows:

“Q.  Could you read out what he told you and when it was that he told you his account?

A.  Yes.  Just bear with me; I'll just quickly find it.  In the same official police notebook 508387 on page 31, I've recorded:

"At 8 o'clock at night on 4 July 2011 I've attended number 5 Fourth Avenue in Condell Park, the address of Abbas Saleh, date of birth 11 August 1993, and his mobile number"--

Do you want that read out?

Q.  No, thank you?

A.  Okay:

"I've then asked him was he the driver of motorbike VID 69, that was involved in a motor vehicle collision with utility Bravo, Tango, Charlie, 49 November upon Edgar Street in Condell Park at 7.05pm on 27 June 2011.  Mr Saleh has replied yes.  I have then asked him, 'Can you tell me what happened?'  He says, 'I was going down Edgar Street towards Condell Park, the ute was reversing out of the driveway.  I was going down and I got close to him so I had to slam my brakes.  I had no control of my bike and I just hit into him.'  I've said, 'Do you recall seeing the reverse lights on the other vehicle?', he says, 'Yes.'  I've asked him, 'Are you the owner?', he says, 'No, Mohammad Elali from Riverwood is the owner of the motorbike.'

I have asked him, 'Was there anything else obstructing your view prior to the collision", he said, 'Yes, a parked van on the kerbside.'  I've asked him, 'How did it obstruct your view?', the answer is, 'I couldn't see the ute because of the van until about 2 metres.  The van was on the kerbside in the next driveway back from the utility.'  I've asked him, 'When did you apply your brakes?', he said, '2 metres before I got to the ute.'  I've asked him, 'Were your headlights on?', he has said, 'Yes.'  I've asked him, 'Was the utility's headlights on?', he says, 'Yes'.

I've asked him, 'Can you assess if the bike reversed slowly or quickly into the intersection?', he said, 'I'm not sure.  It wasn't slow, but it wasn't fast'.  I've asked him, 'Do you recall where you impacted the utility?', he says, 'Not sure'.  I've asked, 'Alcohol or drugs?  No'.  His answer is 'No'.  I've asked, 'How long have you held your licence prior to the collision?', his answer is, 'About a week and a half'.  I've asked him his speed prior to the collision.  His answer is early 50s.  I've asked him, 'Did you at any time cross over to the other side of the lane?', he says, 'No'.  I've asked him, 'Did you attempt to take over the utility prior to the collision?', his answer is, 'Yes, about a metre from the ute' and that's signed by the maker of that statement on 04/07/2011."

That completes it.”

13. In cross-examination, when asked about the circumstances in which he acquired the bike, the plaintiff said:

“Q.  You borrowed the money, did you?

A.  No.  My brother actually got it for me.

Q.  It was a gift, was it?

A.  Yes.

Q.  How much did it cost?

A.  I don't know.  I'm not sure.

Q.  You're not sure suggests you have some idea?

A.  I just seen the bike as in I got you a present, so I just got ‑ like, I will still be young.  Like, I didn't really ask how much and all that.  So I just got on it and I started [untranscribable]” (T 37)

14. The word that is now marked “[untranscribable]” was the subject of some controversy in the course of proceedings. Following information provided by Maureen Barrell, Centre Manager of the Reporting Services Branch, on 28 January 2015, the word has been removed from the transcript after submissions from the parties (see 29 October 2014 transcript – T 118, 124-125).

15. The importance of this answer, which was relied upon by the defendant in his counsel’s initial oral and written submissions to a considerable degree, is reduced to being a description of the circumstances in which the plaintiff was given a motor bike which he had not previously ridden (T 38). I expressly disregard any inferences which could have arisen as a result of the plaintiff using such a word to describe the way in which he drove. As the circumstances of the accident show, the use of this word to describe his driving in fact would have played very little part in the circumstances of the accident in any event.

16. How did the accident happen? The plaintiff in examination in chief gave only the limited description set out above, which did not include any reference to there being a van parked by the road which impeded his view, although this was the explanation he gave to the police when he was questioned some time later. In cross-examination, the plaintiff was asked about a statement he made to the police in which he referred to a van parked on the left hand side of Edgar Street. In light of the written submissions of the plaintiff (which asserted that the plaintiff did mention the van), the whole of the questioning on this issue needs to be set out, so that it is apparent that the issue of the van is only raised when counsel for the defendant specifically puts it to the plaintiff in cross-examination:

“Q.  You said there were parked cars?

A.  Yes.

Q.  In Edgar Street?

A.  Yes.

Q.  Which sides, your side, the other side, both sides?

A.  From what I remember, both sides.  There's always cars parked on Edgar Street, you know.  It's a busy road.

Q.  You were familiar with Edgar Street on the occasion of the accident.  So you knew it was a street full of houses with driveways?

A.  Yes, of course.

Q.  You say parked cars?

A.  Yes.

Q.  You knew, didn't you, that there could be a car coming out of its driveway, entering Edgar Street on your side of the road.

A.  Yeah, like it's always on your mind.

Q.  You had a difficulty, though, didn't you, as you were travelling down Edgar Street, seeing the utility on the road, didn't you?

A.  No, because the only hard thing was, on the bike, when I was riding down, he came instantly coming out of the driveway, like, I didn't even have time to see him, like, all I seen was, like, almost like the back of his ute, the reverse lights on, and on a bike there's not much you can do, like, it's not like a car your know, press your brakes, you can't do much, it was just instant.

Q.  You say it was instant, but is this correct in terms of what you knew had happened as you were driving down‑‑

A.  Riding.

Q.  ‑‑riding down Edgar Street.  You were asked some questions by the police.  Do you remember answering questions of the police about the circumstances of the accident?

A.  If you can tell me the questions that were asked, I can remember, yes.

Q.  You've said, the one question, "Was there anything obstructing your view prior to the collision?" and you answered, "Yes, a parked van on the kerb side"?

A.  Yes.

Q.  Did you intend by that to say, "on your side of the road"?

A.  Yes, on my side.

Q.  Being the side of the road that the defendant's van‑‑

A.  On the left side.

Q.  ‑‑the left hand side, came from.  You were then asked, "How did it obstruct your view?"  And you said, "I couldn't see the ute because of the van until about 2 metres.  The van was on the kerb side in the next driveway back from the utility", do you remember that question and answer?

A.  Sorry, can you just say the last bit again?

Q.  Yes, "I couldn't see the ute because of the van until about 2 metres"?

A.  Yes.

Q.  "The van was on the kerb side in the next driveway back from the utility"?

A.  Yes, that's right.

Q.  Do you agree with that?

A.  Yes.

Q.  Question, "When did you apply your brakes?"  Answer, "2 metres before I got to the ute".  Is that correct?

A.  Yes, because it was such a short distance.” (T 43-44)

17. There were no skid marks at the scene of the accident, even at two metres. The plaintiff later qualified his statement to the police, saying that, “it was just like instant, like.  If you just see a ute reversing out of the driveway, you know.” (T 45)

18. The plaintiff’s written submissions set out at paragraph 5(b) that the street “had parked cars along either side of the road and in particular there was a van parked on the left-hand side of Edgar Street as the Plaintiff proceeded towards Condell Park (Transcript page 9.28-30:44.20 29) [sic]”. That submission, which has been withdrawn, is incorrect. So is the submission that the plaintiff gave evidence that the van he described “concealed his view of the reversing utility until it came out onto the roadway (Transcript page 44.20-44)” (plaintiff’s written submissions, paragraph 5(f)).

19. The statement made by the plaintiff to the police was categorised by the defendant in submissions as “self-serving” (defendant’s written submissions, page 2). I have a choice between accepting the plaintiff’s account of the accident in the police statement as opposed to the plaintiff’s evidence on oath in examination in chief and in cross-examination.

20. The plaintiff said (at T 46):

“Q.  You collided with the rear of the utility on the driver's side, didn't you?

A.  Look, when I was about to hit the ute, I didn't think of any of that.  All I thought about was death.  That's all you think about.  Going at a speed of 50 kilometres on a bike, seeing the back of the ute with reverse lights on, you're going to buckle.  I can't remember all of this.  All I remember is the ute reversing out of a driveway, with his reverse lights, and me smacking into it.  That's all I remember.”

21. He went on to say (at T 47-48):

“Q.  There were no vehicles between you and the utility as you rode down Edgar Street?

A.  No.

Q.  Correct?

A.  Yeah, no, there was no‑‑

Q.  The only vehicle was the one you told us about that was‑‑

A.  On the left.

Q.  ‑‑stationary, that was the van that you described.

A.  That's correct.

Q.  On the other side of the road, do you remember whether there were any vehicles coming towards you, on the other side of the road?

A.  Not that I can remember.  It was a bit far back, but.  Look, when I seen the ute coming, I didn't really think of much.  It's a scary position to be in, I'll be honest, and I‑‑

Q.  Didn't you attempt, when it became obvious, even to you, as you were riding down Edgar Street, that there was a van parked, and beside the van was this utility, stationary, slightly moving forward, not backwards, forwards, that you had to avoid the accident by either slamming the brakes on, or overtaking him on the other side of the road and getting away from the area?

[Objection]

Q.  What choices do you say you had?

A.  Sir, there was none.  Like, it's not ‑ it's not my job to get down and be the lollypop man and be, like, stop there's a bike coming.  Like, I was just doing my daily job running down the road and all I see is this ute reverse out of the way, like it's simple.  There's nothing I can do.  Like, he actually reversed into me and I had no choice.”

22. The plaintiff’s evidence is also contradicted by evidence from statements by witnesses at the scene.

The evidence of witnesses to the accident

23. The accident was seen by Ms Marcella Diaz, who was parking her vehicle on the street. It was also observed by Ms Wendy Staab, who was walking to her parked car along the same street. These witnesses provided statements to the police, who themselves attended the site within minutes because, by coincidence, they were also in the same street, further down, and were able to see the site of the accident from the location where their vehicle was parked.

24. The defendant has also provided a statement, but he effectively saw nothing until he heard the sound of the impact.

25. The statement of Ms Diaz sets out that she was parking her vehicle at about 7:05pm when she observed the following:

“4. I heard a noise, a motorbike, I saw the ute moving, reversing into the intersection.

5. I saw a red motor bike trying to overtake the ute, while he was trying to overtake the ute I saw him hit the right corner of the ute. He did not even brake. I noticed the red bike driving really fast on the red line (notebook error) white lines, I saw him before he hit the ute. It was so fast, he didn’t even brake.

6. I saw the rider go over the top of the red bike and land on the opposite side of the road.

7. I rang 000 as I saw everything.” (Exhibit 4)

26. Ms Wendy Staab provided a statement as follows:

“3. At 7.00pm on 27th June 2011 I was about to walk to my parked car. I heard a bike coming south along Edgar Street. I turned to the bike and tried to flag down the driver of the bike as I could see that a ute was reversing back and I could tell they were going to collide.

4. The ute had appeared to me to have stopped reversing as the reverse lights had gone off.

5. I then saw the bike collide wit [sic] the rear of the ute. It looked as though the rider had swerved in order to miss the ute. I did not hear any brake noises from the rider.

6. The rider of the bike got thrown and hit the rear of the truck and then he rolled onto the ground. I saw him try to get up and I have told him to stay down and for someone to call the ambulance and police. The police arrived and took over.” (Exhibit 4)

27. Constable Kate Karpenko describes how a woman whom she now knows to be Diana Faddoul came to the window and yelled, “Hurry there has been an accident”. She ran three car lengths in front of the police caged truck to find the motor vehicle and motorcycle in the following position. The ute was “facing partially vertical across the left southbound land [sic] lane on Edgar Street, and a red motorcycle lying on its right side over the left southbound lane and partially into the right northbound lane. I observed shattered glass on the rear of the utility and I noticed red coloured panel debris scattered within approximately a 3 metre circumference, surrounding the utility” (Exhibit 4 – Statement of Police).

28. She noted the presence of the witnesses, called for assistance and, at a later stage, entered the relevant details in her police notebook as well as taking photographs and drawing a diagram. No skid marks were observed.

29. Constable Jessica Bill similarly describes exiting the police vehicle and seeing “a few metres down the road” a silver utility “across both lanes and a read motorcycle lying on its right side in the southern lane of Edgar Street.” (Exhibit 4 – Statement of Police)

30. The defendant’s statement to the police has been tendered. He said:

“Q3. – Can yo [sic] tell me what happened?

A3. – I was reversing out of my driveway at 177a Edgar Street Condell Park. I looked for any vehicles, there was nothing coming. I had completed the reverse. I put my vehicle into first gear to move forward South on Edgar street [sic], I felt an impact and jumped out of my car.”

31. The defendant said his ute was in first gear at the time of collision (see also Q11 and A11).

32. As it was 7:05pm, the defendant’s ute has its lights illuminated.

33. The photographs have been tendered and are Exhibit E. I note the following.

1. Although the plaintiff was cross-examined about there being a van, the area identified by the plaintiff as being the location of the van (see Exhibit 6) does not show, in the photographs, a van being present. Having regard to the speed at which the police officers went to the premises, which essentially involved running three car lengths to the scene of the accident, I am satisfied that, as the street was blocked off by the police immediately following the accident, the likelihood of a van leaving the scene of the accident at any time before the police took the photographs in question is remote. I am satisfied therefore that there was no van at the spot marked with the staple (put with a circle), as was put to the defendant by counsel for the plaintiff (Exhibit 6).

2. Secondly, the location of the defendant’s ute as shown in the photographs is where the vehicle should have been located if it had fully completed its reverse manoeuvre. The point of impact was on the driver side of the ute at a point consistent with left hand inside injury to the plaintiff as well as consistent with the location of the motorcycle. This is in turn consistent with the motorcycle “overtaking” manoeuvre as seen by Ms Diaz.

34. Counsel for the defendant put to the plaintiff that he had been attempting to overtake in the manner described by Ms Diaz:

“Q.  As you were approaching the point of impact, you attempted to overtake the van, the utility?

A.  Overtake it?

Q.  Overtake it?

A.  Why, was it driving forward?

Q.  Because it was in front of you, with it being all but stationary?

A.  No.

Q.  Fully occupying the left hand side of Edgar Street?

A.  No, sorry, I can't agree with that, it was reversing.

…

Q.  Is this statement correct, Ms Saleh?

A.  Which statement?

Q.  I'm about to read it to you:

"I saw a red motor bike trying to overtake the ute.  While he was trying to overtake the ute, I saw him hit the right corner of the ute. He did not even brake.  I noticed the red bike driving really fast on the red line, white lines.  I saw him before he hit the ute.  It was so fast, he didn't even brake."

Is that correct, that statement?

HICKEY: I object to this evidence.

WITNESS: No.  That's definitely‑‑

HER HONOUR: On what basis?  He can put to somebody what somebody else says.

WITNESS: No.  That's fine.

HER HONOUR: He's bound by the answer.  I mean, is this person going to be coming and giving evidence.  I don't know.

HICKEY: I think the answer to that question is no.

RONZANI: The answer to that question is there is evidence from that witness, depending on what your Honour rules in due course.

HER HONOUR: It's appropriate that he can put it.  The thing is, I don't think you can say he can't put it.  He can put it that somebody says this, but that's as far as it goes, and we'll deal with the rest of it later but I think he's obliged to actually under section 46.  Yes.  All right.

RONZANI

Q.  Is this correct:

"I then saw the bike collide with the rear of the ute.  It looked as though the rider had swerved in order to miss the ute.  I did not hear any brake noises from the rider."

Is that correct?

A.  No.  That's completely incorrect.

Q.  I'm suggesting to you that you weren't paying enough attention as you were riding your bike down the road.  Do you disagree with that?

A.  Yes.  Definitely.

Q.  You were going too fast down the road?

A.  No.  No I wasn't.

Q.  When you noticed the presence of the utility it was, in fact, not reversing anymore.  It has completed its reverse and was fully in its left hand lane and proceeding slightly forward.  Do you agree with that?

A.  No.  Definitely not.

Q.  That you attempted to overtake the utility but misjudged because of your inexperience as a rider of a bike and ended up collecting the left side of your body with the right back side, the driver's side, of the utility.  Isn't that right?

A.  No, sir.” (T 46-50)

35. Finally, there is the issue of the plaintiff’s speed. If I accept that the defendant’s ute commenced its reverse at a time when there was no traffic and was travelling the 4 to 5 seconds of time described by the defendant, then the plaintiff, if he had been riding at a sufficiently safe speed, as well as keeping a proper lookout, would not have collided with the rear of the defendant’s ute either because he would have come to a stop, or because he would have travelled to the opposite side of the road.

36. The plaintiff’s evidence that he was travelling at a speed “in the 50s” is inconsistent with the evidence of the witness, Ms Diaz, who said that the bike was being driven “really fast” and that the plaintiff “did not even brake”. Ms Staab noted that she “did not hear any brake noises from the rider” and it is not in dispute that the photographs taken do not show any skid marks.

The evidence of the defendant

37. The defendant gave evidence that he was looking from side to side as he reversed out of the driveway onto the roadway (T 85) and that it was about 4 to 5 seconds from the time he left the driveway until the point of impact (T 85-86). He said he had just brought his vehicle to a halt and engaged first gear and begun to roll forward when the accident happened. He agreed he was not looking to the left during the whole period that he reversed onto the roadway:

“Q.  As you continued to reverse out of your driveway, did you continue to look to your left?

A.  No, I can't do two things at once; to look left and right, I can't do that, I don't have two heads, or something.” (T 90)

38. Great emphasis is laid on this concession by the plaintiff as being evidence of negligence, including the defendant’s subsequent acceptance that he would not have been looking to the left at all material times. That is not a submission which I accept. The plaintiff was obliged to look both ways as it was a two-way street.

39. The defendant said there was no van parked beside the road within sight or blocking his view and that, even if there had been a van, he would still have a clear line of sight (T 92).

40. The defendant’s account of the events in the witness box is similar to that given to the police in his statement (Exhibit 4).

Conclusions concerning liability

41. The findings of fact in this case depend substantially upon my accepting the plaintiff as a witness of credit, which I am not prepared to do.

42. Counsel for the plaintiff submits that according to Ms Diaz’s version, the defendant’s vehicle was still reversing onto the roadway immediately prior to the accident and that, by failing to look continuously in the plaintiff’s direction, the defendant was negligent. Although claims of excessive speed by the defendant were particularised, this particular was not relied upon and the plaintiff’s evidence is to the contrary.

43. I do not accept that Ms Diaz’s statement supports the version of the accident given by the plaintiff. She commenced her statement with the reference of hearing a noise in the distance at a time when she saw the ute reversing into the intersection, but does not say that the defendant’s vehicle was still moving at the time of the accident.

44. Ms Staab is definite that the defendant’s vehicle “had appeared to me to have stopped reversing as the reverse lights had gone off”. That is strong evidence that the defendant’s vehicle had completed reversing, and I accept the defendant’s evidence that he had in fact already put his vehicle in first gear.

45. Given the evidence of these witnesses, the placement of the vehicles as shown in the police photographs, the site of impact on the motor vehicle (which is consistent with the plaintiff engaging in an overtaking manoeuvre, as is the lack of skid marks), I am satisfied that the defendant’s version of events, namely that he had come to a stop and had put his vehicle into first gear when the impact occurred, should be accepted.

46. The plaintiff, beyond submitting that the evidence of the accident is “insurmountable” (plaintiff’s written submissions, paragraph 30), does not address the issue of the duty of care and breach of duty owed by the defendant as a driver reversing from his driveway onto a street where the plaintiff had right of way.

47. Counsel for the defendant draws my attention to the explanation given by Deane J in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 521 as follows:

“In leaving it (without justifying reason) in what White J in the Full Court accurately described as an "extraordinary position in the middle" of the roadway where it "obstructed not only one half of the right lane for south-bound traffic in which the [appellant] was travelling but also one half of the right lane for north-bound traffic" (March v E and M M Stramare Pty Ltd (1989) 50 SASR 588, at 590), the second respondent was guilty of a breach of the duty of care which he owed to other road users. It is true that it is unlikely that a careful and attentive driver would have failed to see the lights of the parked truck and to have taken steps to avoid it. As has been said, however, the duty of care owed by the second respondent was also to the inattentive (and intoxicated) driver whose presence upon the road was obviously foreseeable.”

48. Mr Ronzani also draws my attention to the statement by Gummow, Kirby and Hayne JJ in Manley v Alexander (2005) 223 ALR 228 at [11]:

“[11] No doubt the appellant's attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.”

49. The driver of any vehicle, whether on or off the road, must not reverse the vehicle unless he or she can do so safely, and, when reversing out of a driveway out onto a roadway where others have right of way, must exercise particular care. This requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. As the driver arrives at the final point of reversal, and places his or her car into first gear, for the purpose of travelling forward, his vehicle becomes the vehicle which will have the right of way. Other vehicles using the road at the stage at which the defendant’s vehicle was, namely with the vehicle stopped in the middle of the road and about to, or actually, engaged in first gear, need to slow down or even stop in those circumstances. This is what the defendant means when challenging whether a duty of care is owed.

50. In the present case, there was clear visibility of approximately 50 metres between the plaintiff’s first sight of the defendant’s vehicle and the vehicle being in the position described by Ms Staab.

51. All of the evidence points to the plaintiff attempting to overtake the defendant’s vehicle, a manoeuvre which was nearly successful, in that he hit the right corner of the defendant’s vehicle. The defendant’s vehicle did not reverse into the plaintiff’s path as the plaintiff claims. On the contrary, it had ceased reversing and was about to move forward.

52. I have rejected the evidence of the plaintiff on all issues where that evidence is inconsistent with the evidence of the defendant or the independent witnesses. This is in part because of my findings as to his credit, particularly in relation to his assertion that his line of vision was impeded by a large van, and also by reason of my rejection of his credit in relation to quantum issues, set out in more detail below.

The relevant legal principles and their application to the facts of the case

53. The plaintiff bears the onus of proof of establishing that the defendant was negligent. Negligence is determined pursuant to the provisions of the CLA – see s 3B(2), which provides that Divisions 1-4 and 8 of Part 1A of the Act apply to motor vehicle accidents.

54. The duty that a driver owes to other users of the roadway has been explained by the NSW Court of Appeal in Marienv Gardiner[2013] NSWCA 396 at [33] – [37] and in Dunganv Chan[2013] NSWCA 182 at [15].

55. The first question is whether the defendant did in fact owe a duty of care to the plaintiff if he had in fact finished his turn and put the car in first gear in order to move off. I am satisfied that the defendant owed a duty of care to road users generally, but that did not include an obligation to give way to the plaintiff, in that he had completed his reversal, and had stopped his vehicle for the purpose of moving forward, with the car already in first gear. As such, he did not owe a duty of care to a vehicle which sought to overtake him rather than to brake and allow the defendant to move forward. The defendant was entitled to assume that the plaintiff would act in a non-negligent manner: Dungan v Chan, supra, at [15]. It was therefore not reasonably foreseeable that the plaintiff, who had sufficiently far visibility of the defendant’s vehicle from the distance at which it was first visible, would continue to speed to overtake a vehicle which I am satisfied was, at the time, stopped in the middle of the road for the purpose of proceeding forward.

56. The content and ambit of the defendant’s duty of care was not to reverse the vehicle unless he could do so safely, and to have regard to all that was happening on the roadway in the vicinity of his vehicle (Hawthorne v Hillcoat (2008) 51 MVR 523 at [47]). I am satisfied that the defendant was not in breach of that duty, in that he exercised reasonable steps to know what was happening, or might happen, in the vicinity of his vehicle. In particular, he was not required to look left at all times; it was sufficient for him to look from left to right in the manner he indicated in his evidence, and also for him to look forward at the time when he was engaging his vehicle in first gear. There were pedestrians in the street, and a careful motorist would be obliged to check that there was no pedestrian on the roadway before engaging in first gear.

57. If I have erred in so finding, the question of factual causation (s 5D) would still arise. In the absence of an opportunity to react to the plaintiff’s proposed overtaking manoeuvre, and the difficulties for the defendant in moving his stopped vehicle out of the path of the plaintiff, it could not be said that the collision occurred but for the breach of duty of care of the defendant. I also find that the second limb of causation pursuant to s 5D (scope of liability) would not warrant such a finding.

58. Accordingly I am satisfied that the plaintiff has failed to establish that the defendant was negligent. In the event that I have erred in these findings, I make the following findings as to contributory negligence.

Contributory negligence

59. Section 5R of the Civil Liability Act 2002 (NSW) (“the Act”) provides:

“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.”

60. This section of the Act is explained by Basten JA In Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393 at [48]-[52] as follows:

“[48]While s 5R must be applied to determine whether a person has been guilty of contributory negligence, it says nothing about how, if that issue is determined by a finding adverse to a plaintiff, the relative culpability of the plaintiff and defendant are determined. That exercise is governed prima facie, by s 138(3) and, arguably also by s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (the “1965 Act“) which deals with apportionment of liability in cases of contributory negligence and, in particular, s 9(1)(b) which provides that “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“.

[49]Section 9 is also part of the enacted law as to contributory negligence captured by s 138(1):Nominal Defendant v Rooskov [2012] NSWCA 43; (2012) 60 MVR 350 (at [117]) per Campbell JA (Young JA agreeing); see also Joslyn v Berryman (at [69]) per Gummow and Callinan JJ (referring to s 10(1) of the 1965 Act which, at the time applicable to the accident in that case, dealt with apportionment of liability in cases of contributory negligence.)

[50]However there are differences between s 138(3) of the MAC Act and s 9(1)(b) of the 1965 Act. As Kirby J explained in Joslyn v Berryman (at [133]), albeit by reference to s 74(3) of the MAA (which as I have said is relevantly on all fours with s 138(3) of the MAC Act):

Secondly, in s 74(3) of the Motor Accidents Act, Parliament has avoided the more complex statement of the criteria found in s 10(1) of the 1965 Act. There is no reference to the respective “faults“ of the persons involved. Nor is there a reference to the “responsibility for the damage“. In s 74(3) provision is simply made for the reduction of the damages recoverable “as the court thinks just and equitable in the circumstances of the case“. It is not entirely clear whether this more limited formula replaced the previous statement of the “enacted law“ set out in the 1965 Act. On the face of things, it appears to do so and thus leaves wholly at large the reduction for contributory negligence, made by reference to nothing more than what “the court thinks just and equitable“

[51]Hayne J also considered the operation of s 74(3) and concluded (at [157]) that it required the decision-maker to undertake the process of apportionment as described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 ; (1985) 59 ALJR 492 (at 494). In Mackenzie v the Nominal Defendant[2005] NSWCA 180 (at [60] ff) (special leave refused, Nominal Defendant v Mackenzie [2005] HCATrans 844) Giles JA (Stein AJA and Gzell J agreeing) considered the different wording of s 9(1)(b) and s 138(3) and concluded (at [62]–[63]) that the latter still required the court to apply Podrebersek v Australian Iron & Steel Pty Ltd. His Honour accepted that s 138(3) was the applicable provision no doubt because the case involved an intoxicated plaintiff in which circumstance s 138(2) as then in force was invoked. However as s 138(1) only captures the “common law and enacted law as to contributory negligence … except as provided by this section“, in my view the apportionment exercise must be undertaken in accordance with s 138(3). As is apparent from what follows this may be a distinction without a difference.

[52]Neither party referred to either s 9(1)(b) or s 138(3), both being content to submit that the question of apportionment the “just and equitable“ test invokes requires attention to the “degree of departure from the standard of care of the reasonable man“: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 (at 16). The reasoning in Pennington v Norris finds reflection in the statement in Podrebersek v Australian Iron & Steel Pty Ltd (at 494) that the just and equitable apportionment test requires:

… a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42–49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.

These statements were re-affirmed in Wynbergen v Hoyts Corp Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65 (at 66) per Hayne J (Gaudron, McHugh, Gummow, Kirby JJ agreeing).”

61. Whether the plaintiff was travelling at around 50km/hr or closer to 60km/hr, neither his speed, nor the fact that he was driving with his lights illuminated, are relevant, and the plaintiff’s reliance on this (written submissions, paragraphs 31-32) is misplaced. The real question in relation to contributory negligence is what the plaintiff did when he became aware that the defendant’s vehicle had reversed into his path. The plaintiff (somewhat inconsistently with his evidence in chief) relies upon the evidence of Ms Staab, who observed the plaintiff trying to swerve to avoid the defendant’s vehicle, and submits that this was not an unusual reaction from a motorcyclist confronted with a vehicle reversing onto the roadway only several metres in front of him.

62. The plaintiff submits that any reduction for contributory negligence should be between 5 to 10%. The defendant submits that a finding of 100% contributory negligence should be made under s 5S of the Act.

63. I am satisfied that the accident occurred the way Ms Staab described. The plaintiff did attempt to overtake the defendant’s ute, but failed.

64. The picture painted by the evidence is a combination of speed, rider inexperience and, having regard to the plaintiff’s own evidence, simply not knowing what to do. The appropriate percentage for contributory negligence, in circumstances where the plaintiff had ample time to observe the defendant’s vehicle and slow down, must be high: Vale v Eggins [2006] NSWCA 348. However, the proposal that contributory negligence be assessed at 100% does not sufficiently take into account the plaintiff’s version of events which, if accepted by the court, would put the plaintiff in a similar position to that of the plaintiff (albeit he was a pedestrian) in Vale v Eggins.

65. Accordingly, I am of the view that any allowance for contributory negligence should be in the order of 70%.

Quantum

66. If I have erred in my findings as to liability, I set out an assessment of damages.

67. According to the amended statement of particulars of 19 December 2013, the plaintiff suffered the following injuries:

1. Injury to the right shoulder;

2. Injury to left arm;

3. Injury to left elbow;

4. Injury to the left forearm;

5. Injury to the left wrist;

6. Injury to the left thumb;

7. Injury to the left pelvis;

8. Injury to the right wrist;

9. Injury to the right forearm;

10. Injury to nose;

11. Injury to bottom lip including scarring;

12. Injury to right thumb;

13. Injury to left kidney;

14. Injury to lower back.

68. The plaintiff’s continuing disabilities are:

1. Continuing pain, weakness and restriction of movement of the right arm;

2. Continuing pain, weakness and restriction of movement of the left shoulder;

3. Continuing pain, weakness and restriction of movement of the right arm;

4. Continuing pain, weakness and restriction of movement of the back;

5. Inability to work above shoulder height;

6. Inability to carry any heavy weights in his upper limbs;

7. Difficulty in carrying out bending and twisting activities without pain;

8. Impaired concentration;

9. Impaired memory;

10. Anxiety;

11. Depression;

12. Irritability.

69. The plaintiff claimed damages as follows:

Head of Damage	Amount
Non-economic loss (not claimed)	$0.00
Out of Pocket Expenses	Agreed at $5,000
Future Out of Pocket Expenses	Agreed at $5,000
Future Domestic Assistance	$134,943
Past Economic Loss	$44,186
Past Superannuation	$4,860
Future Economic Loss	$409,657
Future Superannuation	$54,935
Total (plus costs):	$675,081

The defendant’s schedule of damages

70. The defendant provided a schedule as follows:

Plaintiff DOB: 11 August 1993 –21 years old

46 years to retirement age (multiplier 956.1)

64 years life expectancy (multiplier 1022.4)

TOTAL

Non Economic Loss

Nil

Past Treatment

Past treatment paid by NRMA pursuant to s 83 $2,651.81

Amounts paid by Medicare $2,163.35

$5,000

Future Treatment

$5,000

Past Economic Loss

$20,000

Future Economic Loss

Nil

Past Care

Nil

Future Care

Nil

TOTAL

$30,000

Damages

71. By reason of the findings on liability, I have addressed the issue of damages only briefly.

72. I note the plaintiff is not entitled to non-economic loss by reason of the fact that he had not exceeded a whole person impairment of 10%.

73. The plaintiff was not a credible witness in relation to damages. His claims about the impact of the accident on his schooling is wholly in conflict with the school records. His evidence in chief was that he was “enrolled in year 12” at the time of the accident but that he did not complete the HSC as he found it a bit difficult as “I was delayed on work” (T 5-6). He said he had “done quite average [sic]” in the School Certificate, averaging 65 to 70%, and that his intention was to complete the HSC and then to work for his brother-in-law, a Mr Medleg (T 7).

74. Counsel for the defendant put to the plaintiff that, well before the accident, the school had sent letters to him and his parents that he was at risk in relation to continued enrolment in year 12 because of failure to comply with the requirements of study at the school for the HSC. The plaintiff responded that he “can’t really remember that far back” (T 26). When shown the correspondence, he said that he only had trouble getting his practical work done “after my accident” (T 26), not before. He denied that he failed, or that he received warning letters for not doing work, stating:

“A.  Look my behaviour was, I'll be honest it wasn't the best but when it came to work I usually always got stuff done.  Like with mathematics, business, I was always on top of all that work.  But my attitude wasn't the best but when it came to theory work I was really good at that.” (T 27)

75. This is not supported by the correspondence from the school. The school’s warning letter of 1 June 2011 categorically states that the plaintiff was in danger of not meeting the course criteria for the HSC business studies subject. Letters in the same terms were sent for his other courses. The plaintiff’s evidence that he had “ended up catching up on my work” and that “[t]he only thing I was delayed on was my timber folio [i.e. the work for his timber trade course]” (T 28) is not borne out by this correspondence, and neither are his claims of being up to date but “then I had the accident and then I got really delayed with everything else, with my timber work and everything” (T 28).

76. The plaintiff also denied that he wanted to leave school and do a TAFE course (T 28).

77. The plaintiff’s claim that these events occurred too long ago for him to remember what occurred need to be seen in the context of this chain of correspondence from 6 May 2011 20 June 2011 - one week before his accident. Each of these seven letters, as well as the personal letter from the principal to the plaintiff’s mother warning of a cut-off date in 14 days’ time (letter 20 June 2011, Exhibit 2), was sent in circumstances where they must have come to his attention (the plaintiff’s parents did not give evidence). I am satisfied from their contents that that the plaintiff was not satisfactorily completing his work in relation to work studies, applied mathematics, business study and English study, the four subjects the plaintiff was enrolled in for the purposes of the HSC, prior to the accident. All of the evidence points to the plaintiff being unable to complete his HSC by reason of pre-existing study and attitude issues.

78. Counsel for the defendant relied upon this history in relation to the plaintiff’s evidence of physical limitations and feelings of depression in relation to the completion of his TAFE course and his ability to work. The plaintiff’s evidence was that he had attempted to work as an apprentice carpenter and an apprentice plumber but his significant physical limitations meant that he did not have the physical capacity to complete the practical elements of the apprenticeship, as well as to do the work itself (T 11). He worked with his brother-in-law for five or six months in 2012 but then went through a period of unemployment during which he felt unable to be motivated and reported to his local general practitioner that he was feeling depressed. He remained unemployed until February 2014 when he again commenced an apprenticeship in plumbing and obtained employment with his brother-in-law, Mr Medleg. He continued to work for Mr Medleg three to four days a week.

79. These findings are important in determining whether to accept the plaintiff’s calculations of past and future economic loss. The plaintiff contends that but for the accident he would by now be a third year apprentice carpenter and/or plumber or electrician (see Exhibit G). The rates for first year (not third year) apprentice plumbers provided by the plaintiff are $630 gross per week, and that of an electrician is $523. The plaintiff claims he has lost 50% of his physical capacity to work in manual labour including work as a tradesman, which would equate to a loss of $266 per week from 1 February 2012 until February 2014 ($27,664). His economic loss since that time is thus calculated at $16,524 on the basis of 48.42 weeks at $430 net per week.

80. As to future economic loss, the plaintiff seeks a cushion on the basis that he has lost 50% of his capacity to perform as a tradesman or manual labourer, and claims $493 net per week for the rest of his working life, which amounts to $409,657.

81. Past and future superannuation claims ($4,860 past and $54,935 future) are also claimed.

82. The plaintiff’s activities during the year that he was off work are similarly inconsistent with his asserted inability to work and constant pain. He agreed he posted pictures of himself on Facebook, sitting in cars, that he continued to go to the gym, and that he asked his general practitioner for bulking products (T 31) so that he could build up his body. The plaintiff agreed that he was a “very strong” physical person, but he had maintained his strength through physical activity and that he continued to be able to go to the gym despite being in pain:

“Q.  You've posted your successes in that regard on Facebook, you've told her Honour.  Is that right?

A.  Yes.  Before the accident.

Q.  After the accident?

A.  Well, I got my body to a shape where I wanted to before the accident.  I got to high 80 kilos and then till now I dropped all the way to 70 kilos.

Q.  You've stopped taking the bulking products, have you?

A.  No.  I've never actually taken bulking products.  I asked about them, okay, but I've never actually proceeded.  I did try and go to the gym.  Okay.  I'll be honest, there's nothing to hide.  I did go back to the gym to try and get my old body back.  Okay.  I couldn't.  So I had to go very light and then I thought there was no point of it, so I just started doing fitness a bit and now I've stopped.

Q.  That year and a half or longer that you didn't work and you say did nothing other than stay at home, it seems as if you did quite a lot socially.  Would you agree with that?

A.  Yes.  Just out with friends, mucking around.

Q.  But then there wasn't any money left.  Is that right?

A.  No.  That's right.

Q.  You had to get a job again.  Is that right?

A.  That's what made me go back into it.

Q.  Why didn't you look for a job in that period of time?

A.  Just with me, I'm really picky.  I can't do a job that I don't enjoy.  I won't be able to go to work.  Like, I have to do something and choose something I want to do, you know.  Not where someone tries to decide what I want to do.  It's my life.  I want to do what I enjoy.

Q.  No compromises by you, is that what you're saying?

A.  No.  It's not‑‑

Q.  It's either your way or no way?

A.  No.  No.  No.  I'm not ‑ I'm not stubborn but I just prefer to do my work, what I want to do, you know.  Not what ‑ like, if someone does give me a talk, yes, I will take it into, like, my brain but, like, if I don't enjoy it, I won't do it.  I want to do something I like.” (T 32-33)

83. The plaintiff also was able to play sport over this period, including soccer. He injured his thumb while playing sport and asserted that this thumb injury occurred because of his accident-related disabilities.

84. The plaintiff’s employer, Mr Medleg (who was also his brother-in-law), gave evidence. He described the plaintiff as “a good boy” before the accident, a claim hard to accept, since he knew nothing about the difficulties the plaintiff was having at school (T 75-76). He denied that the plaintiff was stubborn and refused to perform tasks at work, saying that he would “give it a go”.

85. However, Mr Medleg admitted that the reason for the plaintiff ceasing to work for him was that Mr Medleg was building up his business and there was no work for the plaintiff over this period, as “there wasn’t work, enough to keep him going” (T 77). Mr Medleg said he gave the plaintiff a job “to a certain time” but thereafter did not give him work because he could not do so (T 77). In those circumstances, the plaintiff’s claim that he was unable to perform the work, and that this was why he stopped, is in conflict with Mr Medleg’s evidence.

The plaintiff’s medical evidence

86. The plaintiff suffered a fractured left forearm, injuries to the face which had resolved and some pain in the right wrist. He underwent open reduction and internal fixation with plate and screws of the radial shaft of the left forearm. The left elbow joint was not involved in that fracture. The MAS report noted that the plaintiff had good strength in both arms, which was “consistent with the callouses on the palms of his left and right hands” (Exhibit 1, p 11).

87. The fracture of his right thumb while playing soccer is unrelated to the accident the subject of these proceedings. Although Dr Chin refers to some problems with the posterior interosseous nerve, I note the explanation in the MAS certificate (Exhibit 2, p 12) that there is no radial nerve lesion, and that the plaintiff’s lack of feeling problems will settle with the passage of time.

The medical and medico-legal reports

88. Although the plaintiff provided a bundle of 411 pages of medical records, most of these were of little significance. This was for the following reasons:

1. Pages 1-18 relate to the plaintiff’s admission to hospital, documents between pages 169-319 relate to the Liverpool Hospital, and pages 320-382 relate to the Bankstown Lidcombe Hospital, the details of which are largely uncontradicted;

2. Pages 26-29 relate to the plaintiff’s right thumb injury at football in May 2012;

3. The EMG report which is at pages 30-32 was not explained to me and appears unrelated to the accident the subject of these proceedings;

4. The occupational health assessment centre report appear between pages 50-93 was not served and must, in response to the challenge as to its admissibility, be excluded;

5. The MAS reports appearing between pages 114-168 are of little assistance in that they essentially record that the plaintiff falls below the threshold.

89. Essentially the plaintiff relies upon the three reports of Professor Fearnside dated 23 January and 11 October 2012 and an updating report of 30 September 2014, and the two reports of Dr Dixon dated 3 July 2012. Reports of Dr Parmegiani (pages 94-197 of Exhibit A) describes the plaintiff as a “reasonably intelligent and resourceful young man” who should achieve full resolution of his symptoms within a period of six months if he has some appropriate treatment; however, the plaintiff’s claim for future out of pockets did not include this expense and the plaintiff appears not to have relied upon the report of Dr Parmegiani in relation to damages at all.

90. The defendant have served reports from Dr Casikar and Dr Harvey-Sutton (Exhibit 1).

91. I shall set out the contents of each of these reports in detail before considering the heads of damages claimed.

Professor Fearnside

92. Professor Fearnside’s conclusions in his report of 23 January 2012 are as follows:

“7.2 Mr Saleh may well have some difficulties working as an electrician because of the injury to his left forearm. He has pain in the region and a partial loss of sensation below the elbow. He has some weakness of extension of the wrist and this is the result of a partial lesion of the left radial nerve below the elbow. Although he is right handed, this may prevent him from working in a vocation such as that of an electrician. A vocational assessment will be appropriate. He would be fit for a range of other occupations which do not involve manual work using the left arm and hand.

7.3 Mr Saleh came to assessment only six months following the injury on 27/6/11. For neurological injury, his condition has not stabilised and he has not reached maximum medical improvement. Re-examination toward the end of 2012 or early in 2013 would be appropriate as by that time, the neurological injury to his left upper limb should have stabilised and an assessment of permanent whole person impairment would be possible. In the meantime, it is recommended that he undergo nerve condition studies of the left upper limb to confirm the injury to the left radial nerve/posterior interosseous nerve and this would provide a prognosis as to likely improvement.

7.4 His other injuries have stabilised.

7.5 Mr Saleh does not require any assistance with personal care. On balance, I doubt that he will require any domestic assistance in the future.”

93. In his report of 11 October 2012, Professor Fearnside noted that apart from a right thumb injury while playing soccer, the plaintiff’s condition had remained stable. Professor Fearnside said that the soccer injury was “not related to the first motorbike accident” (Exhibit A, p 46). He went on to state:

“4.6 Mr Saleh will have difficulty with manual work and as such, may well not be able to proceed with an apprenticeship. He was not able to participate in a course to qualify as a carpenter and discontinued. He may well also have difficulties working as an electrician (paragraph 7.2, 23/1/12) because of the generalised weakness in his left arm and loss of sensation, despite his being right handed. He would certainly be suited for office work or similar sedentary type work but seemed disinclined to consider that as an option.

4.7 When his fractured thumb heals, he should be able to return to playing soccer. He may have some difficulty reaching a professional level but I would not feel qualified to comment on the requirements for professional soccer.

4.8 In the future, he may require some minor assistance with heavy and domestic chores, particularly those which require the use of two hands. Otherwise, he does not require any assistance with personal care.”

94. Professor Fearnside’s most recent opinion, dated 30 September 2014, is as follows:

“6.1 Since he was last assessed on 11/10/12, some two years ago, Mr Saleh’s condition has stabilised.

6.2 He came to assessment three years and three months after the injury on 28/6/11/ His prognosis is as he now presents. It is likely he will continue to experience some measure of pain and limitation of movement of the injured body parts as described above.

6.3 Mr Saleh is fit for light work. If he is able to exercise and improve his physical fitness, he may be able to manage some manual type work but at the present time he is fit only for light work such as that he is now doing with his brother-in-law. I see no reason that he could not work five days per week. He may need to undertake further studies in order to retrain for a longer term vocation which would avoid heavy manual work for which he is permanently unfit. He would seem to have few transferable skills (paragraph 4.1 my report 23/1/12).

6.4 From a neurosurgical point of view, he requires no further treatment. He will need to remain under the care of his nominated treating doctors for review and prescriptions as necessary. He should exercise himself and he does not require any physiotherapy.

Mr Saleh does not require any domestic assistance nor any assistance with personal care.

6.5 In my report, I considered Mr Saleh’s condition to have stabilised and this is consistent with the findings on physical examination on 30/9/14 and with his self-report.

6.6 In my report of 11/10/12, I provided an assessment of permanent whole person impairment using the 4th Edition of the AMA Guides and the current Edition of the MAA Impairment Guidelines. I have looked through the joint ranges of motion and the assessments I made in that report and they remain similar. WPI has not increased and total WPI is 12% (excluding scarring).”

Dr Dixon

95. Dr Dixon’s reports are of limited value because he saw the plaintiff on two occasions in 2012 and there was no updating report. He concluded that the plaintiff’s condition “should not deteriorate in the future as his fracture lines did not communicate with the left elbow joint or to the CMC joint at the base of his right thumb”. He considered that the soccer injury was related to the motorbike accident because he fell while trying to protect his left elbow injury. He went on to conclude at p 38 of Exhibit A:

“As noted above, his current capacity for work and to do his trade apprenticeship remains guarded. It is anticipated that with further active use of his upper limbs, he will be able to attempt an apprenticeship next year in the electrical or building trade but may have difficulty doing the physical tasks required such as carpentry. His future capacity to play soccer is that he had difficulty playing this year but may be able to play as an amateur next year. He may have difficulty playing at a professional level to his injuries. He has gratuitous domestic assistance provided by his mother for domestic chores. He would have difficulty doing handyman tasks such as home maintenance at present but should be able to do these in the future.”

96. Dr Dixon’s additional report of the same date does not materially add to these findings but providing a percentage only for the plaintiff’s whole person impairment.

Dr Casikar

97. In his medico-legal report of 5 March 2014, Dr Casikar stated that the plaintiff “appears to have recovered well from the motorcycle accident that occurred on 27 June 2011” and that the soccer injury was “unrelated” (Exhibit 1, p 5 of Dr Casikar’s report). He considered that the plaintiff did not seem to have any significant disabilities. His main disability now was the area of numbness in his left forearm and there were no other disabilities as a consequence of the road traffic accident (p 6). He did not consider that this reduced sensation in the left forearm would interfere with the plaintiff’s capacity to function as a plumber as he is right handed. He considered the plaintiff did not require any domestic care or assistance, stating that the plaintiff had “now started doing a plumbing apprenticeship without any difficulty”, that he required no further treatment and that his employment opportunities were not diminished by this road traffic accident.

98. Dr Casikar’s report is brief and repetitive. It is of limited assistance for these reasons, principally because he does not expose his reasoning for saying why the plaintiff has recovered well from the accident (Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705).

Dr Harvey-Sutton

99. Dr Harvey-Sutton is a consultant occupational physician specialising in disability assessment and impairment evaluation. As such, her occupational medicine practice concentrates on disability assessment and she is well placed to provide the rehabilitation report that Professor Fearnside considered was an important indicia of the plaintiff’s future employability as well as his general health.

100. Dr Harvey-Sutton’s 14-page report is the most comprehensive analysis of the plaintiff’s injuries and disabilities. She has provided a list of all of the medical reports and has carefully analysed and set out the analysis of Professor Fearnside and Dr Dixon.

101. Dr Harvey-Sutton gives an educational and occupational history which erroneously states that in 2013 the plaintiff continued to be on a new start allowance and work two to three days a week for his brother-in-law, when in fact, looking at his tax returns, he ceased working for his brother-in-law some time towards the end of 2012. I noted, however, that Professor Fearnside’s report of 23 January 2012 also misstates the plaintiff’s employment history, in that he states (Exhibit A, p 22, paragraph 4.1) that the plaintiff left school after Year 10 and did not undertake any further studies, saying he was intending to commence his apprenticeship as an electrician. In fact, the plaintiff completed Year 11 and did reasonably well and was having serious difficulties in Year 12 prior to the motor vehicle accident. Dr Dixon described the plaintiff as being a school student at the time of the accident, who would like to do electrical trades in the future, but had not been able to do a pre-trade course at TAFE as at July 2012. This also is, strictly speaking, incorrect. As Dr Harvey-Sutton points out, the plaintiff told her he believed that he did not work in 2012 but that she had ascertained he commenced a TAFE course in carpentry which he attended for about one to two months, and then did not return after he injured his right thumb.

102. The reason for these errors may be that the plaintiff is a poor historian, but I do not propose to draw this conclusion and the plaintiff was not cross-examined on these differing accounts. It is one of a number of unfortunate gaps in the evidence in these proceedings.

103. Dr Harvey-Sutton sets out the plaintiff’s current complaints and participation in his daily activities. He told Dr Harvey-Sutton he was able to perform household activities apart from vacuuming, which caused pain, as did lawn mowing. He had returned to exercise in the form of light jogging and running, playing social soccer and Oztag, but no longer went to the gym because he was unable to use the heavy weights. He did, however, fish and swim. He was able to drive an automatic vehicle, as well as his brother’s car, which is a utility with manual transmission, but had pain in his right thumb if he drove long distances. He had difficulties with his nose due to the nose fracture, but his general health was otherwise good.

104. Dr Harvey-Sutton noted the contents of the x-ray reports and her clinical examination. She notes that since Professor Fearnside’s report of 23 January 2012, the plaintiff’s generalised weakness in his left arm and loss of sensation had improved and that he had good strength in both arms now, consistent with the callouses on the palms of his left and right hands. She considered that the fractured thumb was unrelated to the motor vehicle accident but that notwithstanding the fractured thumb, he should be able to return to playing soccer. She did not consider he required any assistance with heavier domestic chores by reason of his improvements since he had last seen Professor Fearnside.

105. Dr Harvey-Sutton noted, in relation to Dr Dixon’s report of 3 July 2012, the potential for future difficulty in performing carpentry, or becoming a professional soccer player. She also notes that Dr Dixon reported the plaintiff had “gratuitous domestic assistance provided by his mother and domestic chores and that while he would have difficulty doing handyman tasks, such as home maintenance”, he should be “able to do these in the future”. Dr Harvey-Sutton makes no comment about these conclusions, and I assume that she regards them as having been correct as at 3 July 2012.

106. Having noted these matters, Dr Harvey-Sutton sets out the 13 questions she has been asked by the solicitors for the defendant, stating that there were no significant disabilities arising from the motor vehicle accident on 27 June 2011 (p 12), that the plaintiff had been able to return to playing social soccer in circumstances where she could identify “no reason now why he cannot play professional soccer, within my area of expertise as an occupational physician” (p 13). Dr Harvey-Sutton further notes that the plaintiff was unable to say whether he was academically able to complete an electrical apprenticeship, but that he was now fit to undertake either a plumbing or electrical apprenticeship (p 13). She considered the plaintiff was “suited to all those vocations now, for which he was suited prior to the accident of 27 June 2011” (p 13).

107. As to ongoing care and domestic assistance, she noted his problems at the time as follows:

“In the past, he would have required care and domestic assistance while the left arm was immobilised and would have qualified for six hours of assistance per week for the first some two months following the accident. Thereafter, he may have had required two hours of assistance per week for a further two months and then for a further three months may have required two hours of assistance per fortnight to do the lawn mowing/gardening and heavier physical activities around the home.” (p 13)

108. Although the plaintiff makes no claim for past care, it is relevant to note that Dr Harvey-Sutton considered any claim for care would be of a past nature and that she answered question 11, concerning the need for future care, with the answer “no”. She also considered that the plaintiff did not require any further treatment and particularly noted that the fracture of the left forearm was not an intra-articular fracture.

109. Notwithstanding the concerns of Professor Fearnside (whose report is dated 23 January 2012, less than a year after the accident) and Dr Dixon (whose report of 3 July 2012 is similarly dated), I accept the evidence paints a picture of a healthy young man now in good health. The only recent medical report in relation to the plaintiff is the report of Professor Fearnside of 30 September 2014 and it adds little to the picture, particularly given the reports of the defendant which paint a picture of a young man in good health who has recovered from his injuries.

110. Having noted the medical evidence I now set out what my findings would be in relation to the heads of damage claimed.

Past and future economic loss

111. The plaintiff was enrolled in year 12 at the time of the accident, but clearly he could not have continued in year 12, given his failure to comply with the course requirement to sit for the HSC. He was therefore someone who can be regarded as being obliged to look for work, including obtaining apprentice work while completing a TAFE course.

112. I have no information as to what TAFE courses were available to him in 2011, and must proceed on the basis that he would have sought such work in 2012, which is effectively what he did do. I accept the evidence of Mr Medleg that he was unable to offer the plaintiff work and that this is the reason why the plaintiff ceased working for him. There is no evidence of the plaintiff making attempts to seek work during 2013. Counsel for the defendant put it to me that the plaintiff effectively had a year off, which is understandable for a young man in his position, who had been unable to complete the HSC and who suffered injuries following a motor vehicle accident. Compensation for past economic loss can take this kind of response to a motor vehicle accident into account, having regard to the plaintiff’s age and lack of work history.

113. The real difficulty for the plaintiff is that his attitude towards not only work but his responsibilities generally, both before and after the accident. The plaintiff received a series of letters from the principal and the teachers in all of his subjects over a two-month period, and it is evident from the principal’s letter to the plaintiff’s mother that these letters were simply disregarded by a young man with an irresponsible attitude to school and work. The plaintiff’s evidence that he did not recall those letters, and his attempts to deny their contents, simply reinforce this impression of a teenager wanting to enjoy life rather than study or plan for the future.

114. Taking all of the above into account, I am satisfied that any award for past economic loss should be of modest compass. The plaintiff proposes $44,186 and the defendant proposes $20,000. I consider the defendant’s estimate both reasonable and sensible.

115. As to future economic loss, I accept the medical evidence tendered by the defendant and find that the plaintiff had completely recovered from his injuries; any future impact caused by problems with his left arm would at best be resolved by time off work, analgesics or at most a visit to the general practitioner.

116. Determination of future economic loss for a plaintiff who is in school at the time of the accident is never easy, as there is no past work history as a guide. In Mundy v GIO of NSW (Supreme Court of NSW, Spender AJ, 5 June 1995 at p 3), Spender AJ described such a task as requiring the trial judge “to assess the unassessable”.

117. I cannot, however, accept the submission of the defendant that no allowance should be made. Clearly, some allowance would need to be made for occasional absences from work and for any impact the delayed entry into the workforce (insofar as this accident has contributed to it) may have. Accordingly, a cushion or buffer for future economic loss of the most modest proportions should be provided. Doing the best I can (New South Wales v Moss (2000) 54 NSWLR 536), I would allow the same amount for future economic loss as that I have allowed for past economic loss, namely the sum of $20,000.

118. Both those figures would be inclusive of superannuation.

Past and future out of pockets

119. Past out of pockets are agreed at $5,000 (see T 111).

120. Counsel for the defendant proposes the same sum for future out of pocket. I consider that is a sensible proposal. This sum was agreed to by Mr Hickey in closing submissions (T 156).

121. The lump sum the plaintiff would be entitled for past and future out of pocket expenses totals $10,000.

122. Any award of damages would have to be reduced proportionate to the figure I have given for contributory negligence.

Past and future care

123. In submissions, the plaintiff abandoned his claim for past domestic care.

124. The plaintiff did not call any family members to give evidence as to tasks performed on his behalf, nor did he give evidence of his intention to pay persons to perform work on his behalf.

125. I accept the defendant’s submission that there is no evidence the plaintiff would pass the threshold for future care.

Summary of damages

Head of Damage	Amount
Non-economic loss (not assessed)	$0.00
Out of Pocket Expenses	$5,000
Future Out of Pocket Expenses	$5,000
Past and Future Care
Past Economic Loss inclusive of Past Superannuation	$20,000
Future Economic Loss inclusive of Future Superannuation	$20,000
Subtotal:	$50,000
Total (applying 70% contributory negligence)	$15,000

126. According, the damages would be $15,000.

Costs

127. As there will be judgment for the defendant, the defendant should be entitled for an order for costs. I will enter that order, but with a provision for liberty to apply in the event that any application to vary this order is to be made. Any such application must be made within 21 days.

128. I particularly note that an application for costs is made in relation to the circumstances in which after I reserved judgment in these proceedings, counsel for the plaintiff sought to reopen the case for the purpose of challenging a word in the transcript. Counsel for the defendant had to provide written submissions, the proceedings were delayed for a further three months and the parties were unable to agree about how to approach the problem, in circumstances in which the error in question was drawn to the plaintiff’s counsel’s attention as soon as the transcript was available, during the hearing. In the circumstances, I do not accept Mr Hickey’s submissions (5 February 2015) that these costs be costs in the cause. The appropriate order should be that they be the defendant’s costs in the cause. Given the costs order I have proposed in these proceedings, that order would be subsumed in the costs order favouring the defendant in any event.

Orders

1. Judgment for the defendant.

2. Plaintiff to pay the defendant’s costs.

3. Liberty to apply in relation to costs, which liberty is to be exercised within 21 days.

4. Exhibits retained for 28 days.

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Decision last updated: 28 August 2015