Saleh v The Nominal Defendant
[2009] NSWDC 1
•15 May 2009
CITATION: Saleh v The Nominal Defendant [2009] NSWDC 1 HEARING DATE(S): May 19, 20, 21, 22, 23, 26, 27, June 18, August 22, 2008 and subsequent submissions in writing
JUDGMENT DATE:
15 May 2009JURISDICTION: District Court - Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict for the Plaintiff in the sum of $1,083,398.
2. The entry of final judgment and any orders for costs are deferred pending the assessment of damages for funds management charges.
3. The proceedings be listed for directions on 22 May 2009 for the purpose of making consequential orders by consent or, in the absence of consent, to enable a date to be fixed for further evidence and argument on the issues of funds management charges and costs.CATCHWORDS: TORTS - Motor vehicle collison – whether the collision was caused by the driver of an unidentified motor vehicle - whether the Plaintiff was contributorily negligent – whether the requirements of due search and inquiry satisfied – DAMAGES – assessment of multiple heads of damage LEGISLATION CITED: Motor Accidents Compensation Act 1999
Motor Accidents Act 1988
Motor Vehicles (Third Party Insurance) Act 1942CASES CITED: Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541
Fazlic v Milingimbi Community Inc [1982] HCA 3 at [12]; (1982) 150 CLR 345
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Ghunaim v Bart [2004] NSWCA 28
Golden Eagle International Trading Pty Ltd & Anor v Zhang & Anor [2007] HCA 15; (2007) 229 CLR 498
Harrison v Nominal Defendant (1975) ALR 680
Jones v Dunkel [1959] HCA 65; (1959) 101 CLR 298
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Nominal Defendant v Gardikiotis [1996] HCA 56; (1996) 186 CLR 49
Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505
Russell v Rail Infrastructure Corporation [2007] NSWSC 447
Willetts v Futcher [2005] HCA 47; (2005) 221 CLR 627
Wynn v NSW Ministerial Corporation [1995] HCA 40; (1995) 184 CLR 485
Nominal Defendant v Swift [2007] NSWCA 56PARTIES: Khodr Saleh previously known as Rodger Mahony by his Tutor Siham Saleh (Plaintiff)
The Nominal Defendant (Defendant)FILE NUMBER(S): 0881 of 2004 COUNSEL: Mr M Cranitch SC with Mr J Jobson (Plaintiff)
Mr G Watson SC (Defendant)SOLICITORS: Milicevic Solicitors (Plaintiff)
Sparke Helmore (Defendant)
JUDGMENT
Table of Contents
A. INTRODUCTION Nature of the case [1] Background [2] – [3] Summary of facts not in dispute [4] – [5] Summary of disputed facts [6] – [9] Issues for determination [10] – [12] Heads of damage for assessment [13] Summary of findings [14] – [17] Witnesses and evidence [18] – [19] B. LIABILITY Police investigation [21] – [26] Plaintiff has no relevant recollection of events [27] – [29] Did the collision occur in darkness? [30] Approach taken to expert crash reconstruction opinions [31] Consideration of factual evidence from liability witnesses [32] – [79] Expert crash reconstruction evidence [80] – [140] Determination of the liability issues [141] – [218] Lane of travel and speed of the Plaintiff’s vehicle
[142] – [174] Did physical contact occur between the Plaintiff’s vehicle and an unidentified vehicle?
[175] – [184] Relevant events leading up to the collision with the power pole
[185] – [187] Was the driver of the unidentified vehicle negligent?
[188] – [192] Was there contributory negligence on the Plaintiff’s part?
[193] – [199] Due inquiry and search
[200] – [218] C. DAMAGES ISSUES Plaintiff’s pre-injury circumstances [220] – [242] Injuries, treatment, mitigation and rehabilitation [243] – [297] Treatment at the scene
[243] Treatment at Liverpool District Hospital
[244] – [245] Treatment at Prince of Wales Hospital
[246] – [252] Follow-up out-patient review
[253] General practitioner and subsequent referrals
[254] – [277] Rehabilitation and mitigation
[278] – [297] Plaintiff’s evidence of his disabilities [298] – [307] Plaintiff’s post-injury employment history [308] – [331] Plaintiff’s pre-injury behaviour and post-injury behavioural changes [332] – [347] Medical opinions concerning Plaintiff’s disabilities [348] – [460] General
[348] – [351] Physical assessments by medical examiners
[352] – [363] Cognitive, emotional and behavioural assessments by medical examiners
[364] – [460] Plaintiff’s credit [461] – [502] Findings on disabilities due to injuries [503] – [530] D. ASSESSMENT OF CLAIMED HEADS OF DAMAGE Probable life span [532] Non-economic loss [533] – [540] Past loss of earning capacity [541] – [553] Future loss of earning capacity [554] – [564] Past loss of superannuation [565] Future loss of superannuation [566] Past domestic care services [567] – [577] Future domestic care services [578] – [583] Future medical treatment [584] – [589] Future paramedical treatment [590] – [591] Future pharmaceutical costs [592] – [593] Future transportation costs [594] – [599] Past out-of-pocket expenses [600] Funds management charges [601] – [618] Summary of assessment [619] Disposition [620] Interim orders [621]
A. INTRODUCTION
Nature of the case
1. The Plaintiff has brought these proceedings against the Nominal Defendant claiming damages for personal injury including orthopaedic injuries and a severe traumatic brain injury with resultant frontal lobe brain damage arising out of a road traffic collision allegedly caused by the negligent driving of an unidentified motor vehicle.
Background
2. At about 6pm on Tuesday 6 June 2000 the Plaintiff was driving his motor vehicle in a southerly direction in Stacey Street, Bankstown. On behalf of the Plaintiff it is claimed that at this time another southbound vehicle changed lanes from the right immediately in front of his vehicle in a lane-changing manoeuvre that involved contact between the vehicles. It is claimed that as a result, the Plaintiff’s vehicle braked and then skidded across the roadway and into collision with a power pole and then with a nearby fence. The claim is that the identity of that other motor vehicle and its driver remains unknown. The Nominal Defendant has been sued because, on behalf of the Plaintiff, it is claimed that due inquiry and search has failed to establish the identity of the owner or driver of that other vehicle.
3. The Plaintiff has no recollection of the events of the day in question and did not give any evidence concerning the events which led to the collision. The Plaintiff suffered a fractured left clavicle, a fractured right ankle, some musculo-skeletal injuries to the neck and back and a severe closed head injury with traumatic brain damage. The proceedings were brought by the Plaintiff’s mother Mrs Siham Saleh as Tutor. The proceedings were heard over the course of a fully contested trial which proceeded on 19, 20, 21, 22, 23, 26, 27 May, 18 June 2008 and 22 August 2008, followed by written submissions.
Summary of facts not in dispute
4. There is no dispute that in the lead up to the collision the Plaintiff was driving his Holden Gemini vehicle registered number MHY 789 in a southerly direction in Stacey Street Bankstown when his vehicle skidded to the left across the south bound lanes of the roadway to his left and into collision with a kerbside power pole on the south-eastern side of the roadway and then into a subsequent collision with a nearby fence.
5. At the scene Stacey Street comprised three southbound lanes on a slight downhill grade which incorporated a sweeping curve to the left with a radius of about 500 metres. The applicable speed limit for the area was 70kph.
Summary of disputed facts
6. On behalf of the Plaintiff it is alleged that immediately before the collision with the power pole, the Plaintiff’s vehicle was being driven in the middle lane of three southbound lanes in Stacey Street when, suddenly and without warning, an unidentified southbound motor vehicle overtook the Plaintiff’s vehicle from the right, crossing from the southbound lane immediately adjacent to the median strip and into the middle southbound traffic lane that was occupied by the Plaintiff’s moving vehicle.
7. It is alleged that in the course of these events some minor contact occurred between these two vehicles. It is further alleged that the sudden and unexpected appearance of this unidentified vehicle across and in the path of the Plaintiff’s vehicle and the contact between that vehicle and the Plaintiff’s vehicle resulted in the Plaintiff’s vehicle braking heavily, first by application of the footbrake and then by application of the handbrake.
8. It is alleged that these events resulted in the path of travel of the Plaintiff’s vehicle being deflected to the left and further to the south, thereby causing the vehicle to skid out of control across the remainder of the middle lane and the kerbside lane and into collision with a power pole and then with a fence against which the vehicle ultimately came to rest.
9. The Defendant has denied the involvement of another vehicle and claims that the Plaintiff simply drove negligently and too fast and in the course of doing so, applied his handbrake inappropriately and then lost control of his vehicle which then resulted in the collision.
Issues for determination
10. The liability issues for determination are:
(a) In which lane and at what speed was the Plaintiff’s vehicle travelling in the events leading to the collision;
(b) Did physical contact occur between the Plaintiff’s vehicle and an unidentified vehicle at the scene;
(c) What were the relevant events of the collision;
(d) Was the driver of that unidentified vehicle negligent;
(f) Has the Plaintiff discharged the burden of showing that the owner or driver of the unidentified motor vehicle cannot be established after due search and inquiry?(e) Was there contributory negligence on the Plaintiff’s part and if so, was this a relevant cause of the collision and if so, in what apportionment;
11. The damages issues for determination are:
(a) The Plaintiff’s pre-accident situation and prospects;
(b) The Plaintiff’s injuries and the immediate aftermath of such injuries;
(d) The assessment of the individual claimed heads of damage.(c) The Plaintiff’s residual disabilities;
12. The determination of the liability issues requires detailed analysis of complicated expert reports. The determination of the damages issues requires analysis of voluminous hospital and medical reports and credit issues concerning the Plaintiff.
Heads of damage for assessment
13. A total of thirteen claimed heads of damage required assessment. These are listed below together with paragraph references:
| Paragraphs |
| (a) Non-economic loss | [533] – [540] |
| (b) Past loss of earning capacity | [541] – [553] |
| (c) Future loss of earning capacity | [554] – [564] |
| (d) Past loss of superannuation | [565] |
| (e) Future loss of superannuation | [566] |
| (f) Past domestic care services | [567] – [577] |
| (g) Future domestic care services | [578] – [583] |
| (h) Future medical treatment | [584] – [589] |
| (i) Future paramedical treatment | [590] – [591] |
| (j) Future pharmaceutical costs | [592] – [593] |
| (k) Future transportation costs | [594] – [599] |
| (l) Past out-of-pocket expenses | [600] |
| (m) Funds management charges | [601] – [618] |
Summary of findings
14. I am mindful of the fact that these reasons are unusually lengthy for a case of this nature. Given the bulk and content of the exhibits, the transcript of evidence, and the complexities raised by the expert opinions on the liability and quantum issues in the proceedings, the length of these reasons was unavoidable. Having reviewed and analysed the evidence I set out a summary of my findings.
15. I find that in the events leading up to the collision the Plaintiff was travelling lawfully and within the applicable speed limit of 70kph in the middle lane of three southbound lanes in Stacey Street, Bankstown when an unidentified southbound vehicle appeared in the lane immediately to his right. I find that without indication or warning this unidentified vehicle traversed a course that crossed the Plaintiff’s path of travel thereby causing a minor impact between some portion of the passenger’s side of that vehicle and some portion of the front driver’s side of the Plaintiff’s vehicle. I find that as a result of the course taken by that other vehicle and in a reaction to it, the Plaintiff first heavily applied his footbrake followed by a strong application of the hand brake, probably whilst also swerving to the left in an attempt to avoid a more serious rear-end collision between his own vehicle and that other vehicle which then braked in front of his own vehicle.
16. I find that in the course of this manoeuvre the Plaintiff’s vehicle skidded and spun out of control and proceeded to cross the remainder of the middle southbound lane in which he had been travelling, whereupon it then continued to skid across the kerbside lane and into collision with a kerbside power pole on the south-eastern side of Stacey Street, and then into collision with a nearby fence. I find that the driver of the unidentified vehicle was negligent and that such negligence was the cause of the collision with the Plaintiff’s vehicle and the subsequent collision of the Plaintiff’s vehicle with a power pole and then with a fence. I reject the Defendant’s submission that there was contributory negligence on the part of the Plaintiff. I find that after due inquiry and search the identity of the owner and driver of that other vehicle remains unknown. I make no adverse findings on the Plaintiff’s credit.
17. I find that in the collision the Plaintiff suffered a serious head injury with resultant traumatic brain damage. I assess the Plaintiff’s entitlement to compensatory damages in the sum of $1,083,398. In addition I find that the Plaintiff is entitled to an award for damages for funds management charges which remain to be assessed.
Witnesses and evidence
18. The following witnesses were called to give evidence:
(a) The Plaintiff;
(b) Mr Kaled Jaouhar, a friend of the Plaintiff who was a passenger in the Plaintiff’s vehicle;
(c) Mr Paul Collin, a passing southbound motorist;
(d) Miss Cirino, a passing southbound motorist;
(e) Senior Constable Glenn Cassidy, the investigating police officer;
(f) Mr William Keramidas, crash analysis expert called in the Plaintiff’s case;
(g) Mr Grant Johnstone, a crash analysis expert called in the Defendant’s case;
(h) Mr Mohamed Ali Mokbel, the Plaintiff’s brother;
(i) Mrs Siham Saleh, the Plaintiff’s mother and Tutor;
(j) Miss Steinhagen-Punti, the Plaintiff’s fiancée;
(k) Mr Shaun Dunlop, the Plaintiff’s former employer;
(l) Miss Karoline Tsialis, the Plaintiff’s former girlfriend;
(m) Dr Stephen Buckley, a rehabilitation specialist retained by the Plaintiff’s solicitor;
(n) Associate Professor Jonathan Phillips, a psychiatrist retained by the Plaintiff’s solicitor;
(o) Dr Wendy Roberts, a clinical psychologist retained by the Defendant’s solicitor;
(p) Dr Brian Zeman, a rehabilitation specialist retained by the Defendant’s solicitor;
(q) Dr John Sydney Smith, a neuropsychiatrist retained by the Defendant’s solicitor;
19. The parties also tendered voluminous material on the liability and damages issues, including plans, photographs, expert opinions and a bulk of relevant records.
B. LIABILITY
20. It is necessary to review the products of the police investigation of the events of the collision together with the evidence of the factual witnesses to determine first, whether or not the collision occurred in darkness and secondly, to assess the utility and probative value of the competing expert crash reconstruction opinions as a guide to determining the liability issues in dispute.
Police investigation
21. The police were called to the scene of the collision. Senior Constable Cassidy was the investigating officer. He was called by the Defendant to give evidence. Senior Constable Cassidy described how he, together with another police officer arrived at the scene at about 6.20pm on 6 June 2000. That other police officer was not called to give evidence. At the scene Senior Constable Cassidy obtained a short statement or version of events from Mr Jaouhar who was a passenger in the Plaintiff’s vehicle. That statement was recorded in Senior Constable Cassidy’s notebook and it was tendered in evidence as Exhibit “U” in the proceedings. Mr Jaouhar’s statement to the investigating police was in the following very brief terms:
A. We were driving in this lane (indicating lane 2). The guy in front slammed his brakes on hard. Khodr slammed his brakes hard. They didn’t work properly so he slammed the hand brake on hard. We slipped, lost control & hit the pole & that’s all I remember.”“Q. What happened?
22. In addition to taking a statement from Mr Jaouhar, Senior Constable Cassidy also spoke to two other witnesses at the scene, namely Mr Collin and Miss Cirino. The latter apparently provided a statement to the police, the former did not. Senior Constable Cassidy explained that a statement from Mr Collin was not obtained because Mr Collin said he had to leave the scene. In contrast, Mr Collin said that the police had not asked him to provide a statement. The statement the police had obtained from Miss Cirino was not tendered however a transcript of the evidence she had given on 9 April 2001 in previous Local Court proceedings brought by the police against the Plaintiff and arising from the collision were tendered as Exhibit “V” in the proceedings.
23. Senior Constable Cassidy described his inspection of the accident scene, including in the vicinity of the skid marks on the roadway. He prepared a rough sketch diagram which he acknowledged was not drawn to scale but which was intended to represent the location and direction of travel of skid marks on the roadway. This included a cross over point of the skid marks which raised for consideration the prospect that the Plaintiff’s vehicle had spun whilst it was skidding under braking restraint. He described the length of these marks to be 23 metres. He described the commencement of these skid marks to be within the lane markings of the middle lane and about a metre away from the painted line dividing the middle lane and the lane closest to the median strip. He said he had found debris in the vicinity of the collision between the vehicle and the power pole however he said he had not found any debris on the road in the vicinity of the point where these skid marks had commenced.
24. Senior Constable Cassidy explained that the reason he made no inquiries of the kind which he would ordinarily have made if there were two vehicles involved was simply because at the time Mr Jaouhar had not told him of the possible involvement of another vehicle. However, in his evidence Senior Constable Cassidy conceded that he was aware of the potential involvement of another vehicle in the sense that mention was made to him “of a vehicle (that) had stopped in front, which happens in most accidents”. It appears that he obtained this information from the brief statement made to him at the scene by Mr Jaouhar.
25. Senior Constable Cassidy confirmed that on his observation at the scene, Mr Jaouhar appeared to have been shaken up and dazed, having been involved in what was described as a nasty accident. He agreed with the suggestion from Mr Cranitch SC who appeared for the Plaintiff, that Mr Jaouhar’s brief account of events indicated the potential involvement of another vehicle in the accident. He also agreed with the suggestion that it seemed that it was the behaviour of the other vehicle that caused the Plaintiff to take evasive action in the lead up to the collision. Of course that view is not necessarily determinative of the issue.
26. It is clear that at the time Mr Jaouhar was interviewed by Senior Constable Cassidy at the scene, he did in fact make specific reference to the involvement of another vehicle, as is evident from the content of his statement which makes mention of “the guy in front slammed on his brakes hard”. Senior Constable Cassidy agreed that Mr Jaouhar’s description indicated the potential involvement of another vehicle. Senior Constable Cassidy indicated that he had made a request to his superiors for a more detailed accident investigation to be undertaken but this request had been declined by the duty inspector, presumably because at the time there were other competing priorities on allocating available police resources.
Plaintiff has no relevant recollection of events
27. The Plaintiff gave evidence that he had no recollection of the events of the day of the collision nor did he recall the collision itself. He was therefore unable to give evidence of the relevant events. This was consistent with the Plaintiff having sustained a severe traumatic brain injury as was documented in the ambulance and hospital records that were tendered in evidence.
28. The Plaintiff’s limited understanding of the events of the collision has been derived from the hearsay account set out in the personal injury claim form that was filled out on his behalf and subsequently signed by him. He stated that his first post-injury memory was of being in hospital, where he recalls being aware of having a headache and, as he described it, of not feeling normal.
29. In this regard his evidence is consistent with the hospital notes and medical evidence in which his injury was documented. The Defendant did not dispute that the Plaintiff had no relevant recollection of the events of the collision. I accept the Plaintiff’s evidence that he has no relevant recollection of the events of the collision. Accordingly, for the purpose of making findings as to the events of the collision and its cause, an assessment of the credibility of the Plaintiff’s testimony is not relevant to these issues.
Did the collision occur in darkness?
30. Meteorological evidence was tendered to show that on Tuesday 6 June 2000, sunset had occurred at 16:54 hours. The collision occurred about one hour later at about 6.00pm on that evening. The evidence of Mr Collin and Miss Cirino suggested that at the time of the collision it was not completely dark. Mr Collin thought it was not fully dark but dusk. Miss Cirino thought it was “darkish” but not pitch black. Notwithstanding that evidence, which I consider to be imprecise in its terms, I infer from the objective meteorological evidence, which was not disputed, that at the time of the collision, which occurred more than an hour after sunset and in winter, it was already completely dark. On this issue I prefer the inference I have drawn from the meteorological evidence to the evidence of Mr Collin and Miss Cirino which suggests otherwise because their evidence on this issue is based on their impressions rather than the recorded historical events in the meteorological records.
Approach taken to expert crash reconstruction opinions
31. Due to the absence of any relevant recollection on the Plaintiff’s part it becomes necessary to consider the available evidence of the witnesses who were at the scene. The observations of those witnesses were limited in nature. It is also necessary to consider the products of other investigations and the analyses undertaken by the respective accident reconstruction experts who provided reports and who were called as witnesses by the respective parties. I consider that I should approach the analysis of the expert opinions of the crash reconstruction experts with a good deal of caution because, in this case, on analysis it is evident that those opinions involve much conjecture: Fox v Percy [2003] HCA 22 per Callinan J at [149]; (2003) 214 CLR 118, at pages 166 to 168.
Consideration of factual evidence from liability witnesses
32. Unsurprisingly, since the events leading to the collision had occurred very quickly, and for the witnesses this undoubtedly involved the startle and shock of observing trauma, the witnesses Mr Jaouhar, Mr Collin and Miss Cirino were left with varying perceptions and recollections as to the sequence and detail of these events. The determination of the liability issues therefore requires a careful analysis of the relevant parts of their evidence for the resolution of these differences.
Mr Jaouhar – a passenger in the Plaintiff’s vehicle
33. As a convenient starting point I commence my analysis with a review of the evidence of Mr Jaouhar. As the only passenger in the Plaintiff’s vehicle, he appeared to be well placed to be able to describe the continuum of events leading to the collision.
34. Mr Jaouhar gave evidence in the Plaintiff’s case. He was a friend of the Plaintiff since their teenage years. At the time of the trial Mr Jaouhar’s brother was married to the Plaintiff’s sister. For a time Mr Jaouhar and the Plaintiff shared a residential address. At the time of the collision they were both employed at the same place, a car detailing business named Sydney Prestige. Mr Jaouhar said they were on their way home from work when the collision occurred.
35. Mr Jaouhar’s evidence does not make it entirely clear as to which passenger seat he had occupied in the Plaintiff’s vehicle at the time of the collision however, I infer from the description given by Miss Cirino in her evidence in Local Court proceedings to the effect that after the collision the front seats of the Plaintiff’s car having been flung back, that at the time of the collision Mr Jaouhar was seated in the front passenger’s seat of the Plaintiff’s vehicle.
36. Mr Jaouhar described how, at about 6 pm on Tuesday 6 June 2000 the Plaintiff was driving his Gemini vehicle in a southerly direction along Stacey Street Bankstown. In the immediate vicinity of the scene, as is evident from the survey plans prepared by Mr North, and which were tendered in the proceedings as Exhibits “19” and “20”, Stacey Street comprised three southbound lanes on a roadway that was divided in its centre by a median strip.
37. Mr Jaouhar stated that at a distance of about 300m back to the north of the scene of the collision, the Plaintiff’s vehicle was initially being driven in the lane immediately adjacent to the median strip. He recounted how the Plaintiff’s vehicle had previously been travelling in that lane but just after passing a set of traffic lights about 300m back from the scene of the collision the Plaintiff changed lanes into the middle lane to continue on his southbound journey in Stacey Street in that lane.
38. Mr Jaouhar described the Plaintiff’s vehicle as having been driven at about the speed limit, which, it appears from other evidence, was 70 kilometres per hour. Mr Jaouhar denied that the Plaintiff was driving in excess of the speed limit and he denied that the Plaintiff’s vehicle was being driven too fast such that the Plaintiff couldn’t control the vehicle. He also denied that the speed of the Plaintiff’s vehicle was too fast or was dangerous for the surrounding volume of traffic. Although Mr Jaouhar was not a licensed driver at the time he made those observations this fact does not necessarily preclude him from having a relevant view on the speed of the Plaintiff’s vehicle.
39. Although Mr Jaouhar said he was not looking about him for anything in particular during the journey, he described his observation of having seen a dark purple or orange coloured vehicle which “flew” from the lane adjacent to the median strip across and the front of the Plaintiff’s vehicle. He went on to describe how in the course of this manoeuvre, this other vehicle gave the Plaintiff’s vehicle “a bit of a nudge” on the driver’s side. I infer from this description and in particular from his use of the word “nudge” that Mr Jaouhar was describing some sort of physical contact between the two vehicles at that point. Mr Jaouhar later clarified the description “flew” to mean the vehicle in question drove past the Plaintiff’s vehicle at high speed and without displaying any indicators before then braking heavily.
40. Mr Jaouhar described how the sudden appearance of this other vehicle caused the Plaintiff to apply the footbrake heavily followed by a heavy application of the hand brake in an effort to try and avoid a collision with the rear of the vehicle he had described. According to Mr Jaouhar the next thing that occurred was that the Plaintiff’s vehicle became deflected in its path of travel, at which time it had spun out of control, skidded across the remainder of the middle and kerbside lanes to the left and into collision with a kerbside power pole and then into collision with a kerbside fence. Mr Jaouhar conceded that these events occurred in a matter of seconds or less. I do not regard Mr Jaouhar’s description of the time lapse for these events to be an attempt at precision.
41. Mr Jaouhar recalled that after the collision and whilst at the scene he was sitting near a fence and feeling dazed he gave a statement to an investigating police officer. It is evident from the photographs tendered as Exhibits “G” and “J”, that the impact between the Plaintiffs’ vehicle and the power pole was very heavy, as can be seen from the significant deformity and intrusion damage that was occasioned to the Plaintiff’s vehicle. In view of the foregoing description of the impact, it is unsurprising that Mr Jaouhar described himself as feeling shocked and dazed after these events.
42. Mr Jaouhar recounted in his evidence that the collision apparently caused him to lose consciousness from a blow he had received to his head. He also recounted how, following the collision he awoke after laying on the car floor for a while, for what I infer to have been a brief period of unconsciousness. This account is corroborated by Miss Cirino’s evidence which is contained in the transcript of the evidence she gave in the Local Court proceedings on 9 April 2001. That transcript was tendered as Exhibit “V”. In that evidence she stated that Mr Jaouhar seemed to her to be “out cold” whilst he was still in the car at the accident scene.
43. Mr Jaouhar was cross-examined concerning what Mr Watson SC suggested was his failure at the scene of the collision to inform the attending police of his observation of the involvement of another vehicle. I infer from the fact that Mr Jaouhar was also taken to hospital by ambulance that he was also injured and was sufficiently affected by the events of the collision to warrant hospital medical assessment. This is a matter that tends to be corroborative of his statement that he was shocked and dazed. This is also confirmed by the observations of Senior Constable Cassidy.
44. Mr Watson SC challenged Mr Jaouhar’s credit by suggesting that he had invented the involvement of an unidentified vehicle in order to help the Plaintiff who was his friend and relative by marriage. Mr Watson SC also explored other issues in his cross-examination of Mr Jaouhar. These issues included whether the Plaintiff’s vehicle was travelling in conjunction with other groups of friends, driving in excess of the speed limit or at an inappropriate speed for the traffic conditions and playing road games described in evidence as “fish tails”. Mr Jaouhar forthrightly denied those suggestions. Despite the specificity of the content of these suggestions no contrary evidence was called to describe the occurrence of such alleged road games and fishtail manoeuvres.
45. Mr Jaouhar’s brief statement given to Senior Constable Cassidy at the scene suggesting the presence of another vehicle is in my view contemporaneously corroborative of his evidence concerning the presence of another vehicle at the scene.
46. Mr Jaouhar also gave evidence in Local Court proceedings that were brought against the Plaintiff by the police. The transcript of Mr Jaouhar’s evidence in those proceedings was not tendered in these proceedings. This was a matter that affected the probative value of some of the expert crash analysis evidence. Mr Jaouhar agreed that the evidence he gave in those previous proceedings contained more detail than that which he provided to the police at the scene. His explanation for this difference in detail was that he was in shock and he was in a dazed state at the scene and he had only told the police officer the “the basic stuff’” whereas at the time he gave subsequent evidence he said he had “… more time to know what happened, and to sink it all to my brain as to what exactly happened” from which I infer that he meant that he later had time to gather his thoughts and recollections in order to provide a more detailed and accurate account.
47. I infer from the foregoing answer that what Mr Jaouhar meant by that answer was that at some time after he had spoken with the police officer at the scene and after the immediate sequelae of the collision which had caused him to feel shocked and dazed were no longer affecting him, in his mind he had pieced together his perceptions of the sequence of events of the collision in order to recount them as he did in his evidence.
48. During cross-examination Mr Jaouhar sought to further explain the state he was in at the time the police interviewed him by saying he was ”really out of it” and in shock. I take this aspect of Mr Jaouhar’s evidence to mean that he intended to convey the meaning that he was not able to give a fully focussed or detailed account of the events he had witnessed when he was interviewed by the police at the scene but was later able to give a more expansive account of events.
49. Whilst Mr Jaouhar conceded that at the scene he should have perhaps told the police about the other vehicle I find that the comment in his statement to the police which refers to “the guy in front” was an attempt on his part to inform the police of the presence and involvement of another vehicle at the scene. In his evidence in chief Mr Jaouhar sought to explain why he didn’t tell the police about the other vehicle:
A. At that time of the accident, like I said, when the police approached me, I didn’t – I just – I just gave them like a – I don’t know why I did – didn’t tell them about the car, but this – I told them there was a car involved in the accident.”“Q. Why was that?
50. The foregoing answer may appear to be difficult to understand at first reading when viewed in stark print without the benefit of it being enlivened by observing the manner of Mr Jaouhar in giving this evidence because in his evidence Mr Jaouhar did not express himself in a fluent or articulate manner. I observed and noted that when he was giving evidence he was not at ease or relaxed. This could also have been the case when he was interviewed by the investigating police at the scene. I do not discount the possibility that the brief statement of Mr Jaouhar recorded in Senior Constable Cassidy’s notebook was a condensed summary of a lengthier and far less articulate account given by him at the scene.
51. Mr Jaouhar left me with the impression that he was doing his best to give a sincere and accurate account of his recollection of the events.
Mr Collin – a motorist who rendered assistance at the scene
52. The Defendant called Mr Collin to give evidence. Mr Collin said did not have an independent recollection of the date of the collision but he recalled that a collision had occurred at the scene. In his evidence in chief he stated he was travelling south in the kerbside lane of the three southbound lanes in Stacey Street. He described his own vehicle as being a medium sized four-wheel drive vehicle which was to a degree elevated. I infer from this description that he sat in a higher position compared to a standard sedan and as such he had a good view of traffic conditions on the roadway ahead.
53. He stated that he saw traffic ahead in each of the three southbound lanes. When he was asked to describe what he had seen in the lead-up to the collision he stated he saw a car “flash” between traffic from the far right lane adjacent to the median strip into the middle lane and also from the middle lane to the kerbside lane. He stated there were two “flashes” between the gaps in the traffic followed by the appearance of dust and debris.
54. When asked to describe the angle at which he saw the vehicle ahead move across the line of traffic he said it appeared to him to be a very acute angle, not like cars changing lanes. After the collision he said he saw that another vehicle had stopped in the southbound lane ahead of him so he stopped some distance back from that point and he turned on his hazard lights to try and make the area safe before going to the scene of the collision to render assistance. He stated that he had waited at the scene until the police had left. He said he was not asked by the police to make a statement. This latter evidence is at variance to the evidence of Senior Constable Cassidy who stated that a statement was not taken from Mr Collin because Mr Collin had to leave the scene. In my view nothing of significance turns on these two differing accounts as to the reason why no statement was obtained from Mr Collin.
55. When Mr Collin was asked whether he had seen another vehicle in the area he stated:
“…
A. I have no recollection of anything that happened around this incident”
56. In contrast, in his answers to cross-examination by Mr Cranitch SC, Mr Collin said he was sure he had a good memory of the events.
57. During cross-examination it emerged that Mr Collin had spoken to the police attending the scene but no statement was taken from him at that time. In answer to a call by Mr Cranitch SC, Mr Watson SC identified a 17 paragraph statement dated 2 June 2004 that had been made by Mr Collin some 4 years after the event and which he had provided to the Defendant’s solicitors. That statement was marked MFI “10” in these proceedings. Mr Watson SC sought to tender that statement during the re-examination of Mr Collin. Given that the statement had been prepared 4 years after the event, given that it had been prepared for the purposes of litigation and given that there was no evidence that Mr Collin had given his evidence after having had his memory refreshed from reading that statement, I formed the view that an insufficient foundation had been laid for the tender of the statement and the tender was therefore rejected.
58. Mr Collin claimed that at 6 pm on the day in question, which he described to be late afternoon, it was not dark or at least not fully dark but dusk. He could not recall and did not know whether the headlights were illuminated on his own vehicle. In his initial evidence Mr Collin thought his vantage point at the time of the accident was some 200 metres away. Later he agreed the incident could have occurred something like 100 metres ahead of him. He said at the time traffic was moving normally. He could not say how heavy the traffic was at the time.
59. As to the occurrence of the collision itself Mr Collin gave the following evidence in cross-examination by Mr Cranitch SC:
“…
A. The flash, flash, the debris coming up and sort of sickening feeling that there had been an accident.”…
Q. You see – I am not being critical of you but you’re surmising that the vehicle must have come from the outside lane because you saw a flash-flash. Is that fair to say?
A. No I actually saw a gap between the outside lane - our right-hand side lane and the middle lane. The car moved between that – through that gap and I also saw it move through the gap between the middle lane and the kerbside lane or gutterside lane.Q. What was the distance between your point of observation and those vehicle movements?
A. That is what I think was about 100 metres.Q. And what you saw was a vehicle which appeared to move across three lanes, is that right?
A. Yes.Q. But you couldn’t tell the colour of the vehicle could you?
A. No.
Q. All you saw was what you thought was a vehicle going flash, flash into the intervening spaces between the lanes?
A. Well, it definitely was a vehicle.Q. All you were aware of is that there was this flash, flash.Q. There could have been two vehicles that crossed lanes, couldn’t there? In other words, there could have been a vehicle that swerved from the median lane across a vehicle in the middle lane, that was one flash, and then the vehicle in the middle lane being forced off to the left, that’s another flash. That could have happened, couldn’t it?
A. I think that possibly could have because I don’t recall, you know, specifically seeing a particular colour vehicle or type of vehicle in these flashes, yeah.
A. Yes, and then the – accident on the side of the road.”
60. By his second-last quoted answer, Mr Collin conceded the possibility of the involvement of another vehicle in the events of the collision, consistent with the case the Plaintiff was seeking to make based on the evidence of Mr Jaouhar.
61. When Mr Collin was asked about the speed of the Plaintiff’s vehicle he said he could not judge the speed of the vehicle but knew the speed was abnormally fast. In view of this evidence and in view of what must have been the very limited period of time available to Mr Collin for such an observation, I have to consider the evidence as a whole in order to evaluate the reliability of the evidence of Mr Collin to the effect that the Plaintiff’s vehicle was travelling abnormally fast. In particular, I have to consider the significance of his evidence that the traffic was moving normally at the time.
Miss Cirino - a motorist who rendered assistance at the scene
62. Miss Cirino was called to give evidence in the Defendant’s case. She acknowledged that the events leading to the collision had occurred very quickly and had caused her to suffer a terrible fright, which is not at all surprising in the circumstances. She described how, after the Plaintiff’s vehicle had collided with the pole and the fence, she stopped her vehicle, alighted from it, assessed the situation, called an ambulance and then, commendably, went to the aid of the Plaintiff and his passenger.
63. In her evidence in chief Miss Cirino stated that she had finished her work at Chester Hill at 5.30 pm and was on her way home when the collision occurred. She nominated the time of the collision as being somewhere between 5.30 pm and 6.00 pm on the day in question. At the scene she was driving south in Stacey Street. She stated that she was in her vehicle travelling south in the kerbside lane at a speed that was just under the speed limit in readiness to make a left turn into a continuation of Stacey Street where it turned into Fairford Road.
64. Miss Cirino described her perception of becoming aware of a vehicle accelerating at a high speed in the lane closest to the median strip. She also stated that she was aware of hearing the revving of accelerating motors. From her use of the plural motors, I infer that apart from her own vehicle which was slowing down in readiness to turn left, there were two other vehicles in the vicinity.
65. In this context she identified what she described as the Plaintiff’s small yellow vehicle, moving, as she said she saw it, from the lane adjacent to the median strip and across the other southbound lanes to appear and cross in front of her. She gave varying descriptions of the vehicle crossing at about a metre or so directly in front of her own vehicle in the kerbside lane. She stated that the speed of that vehicle was much faster than that of her own vehicle.
66. Miss Cirino described her observation of the yellow vehicle starting to skid from the third lane which was the one closest to the median strip and to then continue to skid to the left whilst crossing the middle and kerbside lanes and then skid into collision with a kerbside pole and then continue on into a forceful collision with a nearby fence. She stated that she then applied her brakes hard, stopped, called for an ambulance and then approached the Plaintiff’s vehicle and rendered assistance.
67. Given that the objective evidence is that the skid marks left by the Plaintiff’s vehicle commenced inside the middle southbound lane and not in the lane adjacent to the median strip, I have to assess the reliability of Miss Cirino’s stated observation that she saw the Plaintiff’s vehicle in the lane adjacent to the median strip where she said it started to skid to the left crossing the middle and kerbside lanes in the process.
68. Miss Cirino said that after the collision she went to look into the Plaintiff’s vehicle and described seeing the handbrake lever in the Plaintiff’s vehicle as being in the upward position. Exhibit “J” showed that when the vehicle was photographed at the scene the handbrake lever was not in the up position as described by Miss Cirino. She said she did not see any vehicle in the vicinity other than the vehicle that was being driven by the Plaintiff even though she heard the sound of revving motors. Miss Cirino conceded that these events “happened quite fast”
69. A transcript of the evidence given by Miss Cirino in the Local Court proceedings in April 2001 was admitted into evidence as Exhibit “V”. That transcript reveals a number of differences in the content of her evidence given on that occasion when that evidence is compared to the evidence that she gave at the hearing of these proceedings. In my view those differences are material to the assessment of the reliability of her evidence.
70. In these proceedings Miss Cirino conceded that she had not been especially looking to see at what speed she had been travelling at the time but stated that she had been in the process of slowing down from travelling at about the speed limit which was 70kph. She did not state where it was that she started to slow down. She was cross-examined on the content of her previous testimony given in the Local Court proceedings. It was shown that at that time she had ventured a guess as to her own speed at the time which on that occasion she described as being 40kph. The difference in those speed estimates, the differing levels of driver pre-occupations that would have prevailed at these various speeds and the differing opportunities that would have been available to make reliable observations of the surrounding events is in my view quite significant.
71. In these proceedings, when Miss Cirino’s attention was drawn to her apparently inconsistent evidence concerning speed, she stated that could not now recall her exact speed. That evidence was also at variance with her evidence that she was travelling at just under the speed limit. It was also at variance with the evidence she gave in April 2001 when she said she was travelling at 40kph. This variance caused me to carefully consider her reliability as a witness.
72. Miss Cirino’s perception was that at the time of the collision it was “darkish” but not pitch black darkness. She could not recall whether the lights on her own vehicle were illuminated or not. She conceded that there were vehicles behind her with headlights illuminated which suggests that, consistent with the objective meteorological evidence and the time at which she made her observations, it was dark. She agreed with the proposition that the accelerating or revving sound that she had heard sounded to her like that of a “hotted up car”. In contrast to that view there was no evidence that the Plaintiff’s vehicle was anything other than a standard stock car without modifications to render it “hotted up”.
73. Miss Cirino stated that she first saw the Plaintiff’s vehicle when it was one or two car lengths behind her own vehicle and when that vehicle was in the lane closest to the median strip. A question arises as to how she could have reliably made this observation if the Plaintiff’s vehicle was travelling at about or even above the speed limit because this was a speed that was faster than her own vehicle which, according to the evidence she gave in the Local Court proceedings, was travelling at about 40kph. Since she did not say she had not overtaken the Plaintiff’s vehicle, and was presumably looking ahead and not behind whilst she was slowing down, this raises for consideration the reliability of Miss Cirino’s observation of the position of the Plaintiff’s vehicle behind her.
74. In my view significant doubt arises as to Miss Cirino’s opportunity to make such an observation. These doubts are given emphasis in view of the fact that any such observation would have to have been made in darkness with the headlights illuminated on the vehicles behind her which in my view would in the circumstances tend to limit the extent of observations of the detail of vehicles seen in a rear or side view mirror. Given the rapidity of the unfolding events, in my view Miss Cirino would have had only a very limited opportunity in time in which to react and turn her head around to observe the events occurring either behind or beside her as she described. In my view these are all circumstances that in combination have the potential to detract from the reliability and accuracy of Miss Cirino’s observation when she stated that she had seen the Plaintiff’s vehicle to have been travelling in the lane next to the median strip when that vehicle commenced to skid. This is particularly so since the skidmarks were not evident in that lane but were only seen to have commenced in the middle lane.
75. During cross-examination Miss Cirino’s attention was drawn to the apparent difference in her description of traffic conditions at the relevant time. In these proceedings she stated there were no other vehicles in the middle lane whereas at the hearing in the Local Court April 2001 she had conceded that she was not sure whether there were other cars there. She initially sought to reconcile her earlier evidence as meaning there was no other traffic in the middle lane but she ultimately conceded that it was possible that there was other traffic there but she could not remember it although she later adhered to her evidence of only seeing the one car in the middle lane, namely the Plaintiff’s vehicle as it was skidding across the lanes. In my view this evidence raises for consideration the question of whether Miss Cirino had in fact seen the Plaintiff’s vehicle before it appeared in the middle lane and ahead of her own vehicle as her attention had initially been drawn to the vehicle by the sound of accelerating and revving which was not a visual observation. This does not exclude the possibility of the presence of an additional vehicle in the lane adjacent to the median strip as was described by Mr Jaouhar notwithstanding that Miss Cirino stated she did not see that other vehicle.
76. In her evidence in these proceedings Miss Cirino stated that her attention was drawn to the Plaintiff’s vehicle when she heard the sound of revving. She also gave that evidence in the Local Court proceedings. Significantly, in those proceedings she agreed in cross-examination that in an earlier statement given to the police she had said “I first noticed a car when I heard the screech of tyres”. Given that the screeching tyres only left skid marks in the middle lane this also calls into question whether Miss Cirino could have seen the Plaintiff’s vehicle in the lane adjacent to the median strip in the manner she described.
77. In my view there is a good deal of confusion within the cumulative recollections that were related in the evidence of Miss Cirino, namely, the quoted portion of her statement to the police, her evidence in the Local Court proceedings and the evidence she gave at the trial, as summarised above.
78. She said she could not recall the colour of the vehicle that she saw in the lane closest to the median strip but saw the Plaintiff’s yellow vehicle in collision with the pole. She conceded that with the lights illuminated on the vehicles behind her, it was difficult to register vehicle colours and types. She agreed that whilst she did not register the colour of the vehicle in the lane adjacent to the median strip to be a yellow vehicle she stated that she later became aware of a yellow vehicle cutting across her lane with its tyres screeching. She agreed there were vehicles behind her and in front of her but not immediately around her at the time. She agreed that the manoeuvre in which the yellow car cut across in front of her occurred very quickly and at an angle that was quite sharp. She could not recall that angle as being almost 90 degrees.
79. In her evidence in these proceedings Miss Cirino agreed with the proposition that the Plaintiff’s vehicle “coming just out of nowhere turning across the middle lane” which was consistent with the evidence she gave in the Local Court in April 2001. In my view this evidence raises for consideration the question as to whether Miss Cirino in fact saw the Plaintiff’s vehicle in the lane adjacent to the median strip.
Expert crash reconstruction evidence
80. Each of the parties retained a crash reconstruction expert. The Plaintiff called Mr Grant Johnstone and the Defendant called Mr William Keramidas. Both of these witnesses held acknowledged expertise in the fields of engineering and crash analysis.
81. Mr Johnstone’s report dated 12 January 2007 was admitted into evidence as Exhibit “E”. Mr Keramidas’ report dated 2 May 2007 was admitted into evidence as Exhibit “7”. The Plaintiff’s solicitor subsequently asked Mr Johnstone to prepare a report commenting on the report of Mr Keramidas. That report, which was dated 14 May 2008, was admitted into evidence as Exhibit “F”. Each of these reports were, to varying degrees, based on assumptions. Significantly, some of those assumptions did not feature in the evidence tendered by the parties at the trial. In my view this influenced the probative value of the reports from these experts.
The role and purpose of expert evidence in this case
82. Although at times in cases such as this there may be a legitimate role for expert evidence to provide a filter or plausibility cross-check to guide an assessment of the reliability of aspects of the factual evidence, the role and purpose of expert evidence is not to supplant or substitute their opinions for factual evidence.
Matters affecting the utility of the expert opinions in this case
83. In my view the expert crash reconstruction opinions tendered in this case have been affected by significant forensic difficulty which undermines the reliability of these opinions.
84. The first report from Mr Johnstone, Exhibit “E” which was dated 12 January 2007, took into account, amongst other things, matters within a “Police Event Report” dated 10 August 2000, a police statement from Senior Constable Eldridge dated 16 March 2001, a report from Senior Constable Cassidy dated 15 February 2001 and the transcript of what appears to be the entire proceedings at Bankstown Local Court involving proceedings against the Plaintiff in respect of a dismissed charge of negligent driving. Apart from the very limited exception of Exhibit “V”, which comprised the evidence of Miss Cirino given in those Local Court proceedings, none of these documents were tendered in evidence in these proceedings. Mr Johnstone undertook an examination of the scene of the collision. This took place on 29 May 2006.
85. The report of Mr Keramidas, Exhibit “7” which is dated 2 May 2007, took into account, amongst other things, a “COPS Event Entry” dated 10 August 2000, a “Police Brief of Evidence” and the “Plaintiff’s Criminal Hearing transcript”, none of which were tendered in evidence in these proceedings with the exception of Exhibit “V”.
86. Whilst each of these experts have identified the foregoing documents as comprising background material, the fact that such material was considered by them but not tendered in evidence in these proceedings raises methodological questions as to the reliability of the expert evidence concerning the respective crash reconstruction analyses.
87. For example, the report of Mr Keramidas quoted extensively from matters that were not tendered in evidence in these proceedings. Whilst this methodology was a legitimate pathway for the preparation of expert reports, I consider the absence of that material from the fabric of the evidence actually tendered in these proceedings to be a factor which undermines the facility for transparent evaluation and therefore the assessment of the reliability of the reports. In assessing these expert reports I have ignored the references to the extraneous and unproven matters whether they have been stated to be assumptions or background material, such as for example, the speculative reference in both Exhibit “E” and Exhibit “7” to the Plaintiff’s speed in the lead up to the collision being in excess of 100kph. Nevertheless, the fact that such unproven matters are embedded in the reports tendered reinforces my view that it is necessary to view these reports with great caution when trying to discern the factual bases upon which the authors have expressed their expert opinions.
88. Notwithstanding these difficulties I am nevertheless required to engage with and analyse this expert evidence and I do so in the ensuing paragraphs.
The evidence of Mr Johnstone
89. Mr Johnstone noted that the roadway at the accident scene comprised a slight downhill grade and sweeping curve comprising a radius of approximately 500 metres. It was common ground that the applicable speed limit for the area was 70 kilometres per hour. Figure 3.6 on page 15 of Mr Johnston’s first report is a photograph that shows a view to the north of Stacey Street showing a kerbside power pole in the foreground. The background shows the direction from which the Plaintiff’s vehicle travelled. The three south bound traffic lanes in Stacey Street are clearly evident as are the splayed turning lanes.
90. In Figure 5.1 at paragraph 5.2 on page 21 of his first report Mr Johnstone incorporated a diagram in which he sought to portray in diagrammatic form his view of the collision dynamics starting from the time of initiation of loss of control of the Plaintiff’s vehicle with an anti-clockwise spin or rotation leading to pole impact and then leading to the ultimate rest position of the vehicle after further rotation of the vehicle by about 270 degrees anti-clockwise. Using accident reconstruction formulae available to him and using the data stated, Mr Johnstone estimated the speed of the Plaintiff’s vehicle immediately before impact to be in the range of 30 to 40 kilometres per hour.
91. Mr Johnstone identified four potential initiators of the impact of the Plaintiff’s vehicle with the power pole as being:
(a) A sudden mechanical failure in the steering system whilst the vehicle was cornering to the right, which I consider to be an unlikely factor in this case, especially as there is no evidence to support such an explanation;
(b) A sudden evasive steering of the vehicle towards the left, such steer being executed in a more aggressive than a typical lane change. This factor has some plausibility since it is broadly consistent with the evidence given by Mr Jaouhar concerning the sudden appearance of the other vehicle;
(d) An application of the handbrake to the rear wheels whilst the vehicle was being steered to the left. This factor also appears to be plausible as a potential explanation for the accident especially since there were fresh skid marks at the accident scene which were obviously related to the trajectory the Plaintiff’s vehicle took as it headed from the middle lane where the skid marks commenced and proceeded towards the point of collision with the power pole. It is implausible that such skid marks were co-incidentally present on the roadway.(c) A force applied to the right or driver’s side of the Plaintiff’s vehicle, the force being applied towards the left side of the vehicle which then instigated a loss of control of the vehicle, either directly or indirectly due to driver corrective action. This factor also appears to be plausible as a potential explanation for the accident since it is consistent with Mr Jaouhar’s evidence that the Plaintiff’s vehicle received a bit of a nudge from another vehicle. The plausibility of this explanation is reinforced by Mr Johnstone’s opinion that the force required to cause such a deflection in the direction of travel need not have been substantial;
92. Also raised for consideration is a combination of some of the factors identified in the above analysis.
93. In his initial report Mr Johnstone concluded that the collision in question was caused by a sudden combination of evasive steer to the left and/or contact with another vehicle at the from right of the Plaintiff’s vehicle. He concluded that these events were the likely reasons for the loss of control of the Plaintiff’s vehicle immediately prior to the collision between the vehicle and the power pole.
94. In the course of preparing his first report Mr Johnstone inspected post-collision photographs of the damaged vehicle. He concluded from the photograph that the handbrake was not shown to be engaged. This is consistent with what is shown in Exhibit “J”. He also stated that he would not have expected the vehicle’s handbrake to be disengaged from the engaged position after a collision. Other than conjecture, there would appear to be no reasonable basis in the evidence for Mr Johnstone to draw such a conclusion in this case as there was no contemporaneously recorded evidence as to the state of engagement of the handbrake at the time of the collision nor is there any evidence descriptive of what happened to the vehicle during the course of rescuing the Plaintiff from the vehicle or indeed afterwards. There is the evidence of Miss Cirino who claims the handbrake was in the up position when she saw it. There is no evidence as to precisely when the photograph Exhibit “J” was taken nor was there any evidence as to safe custody of the vehicle in the period from the time of the collision until the time when the photograph was taken.
95. In essence, Mr Johnstone’s opinion was that prior to application of the brakes the speed of the Plaintiff’s vehicle was in the vicinity of 55 to 60kph. At the time the vehicle collided with the power pole he was of the opinion that its speed was in the vicinity of 30 to 40kph. Mr Johnstone’s evidence reveals that these estimates are necessarily speculative.
96. In Mr Johnstone’s opinion the crash dynamics that operated at the time were that the Plaintiff’s vehicle had spun in an anti-clockwise direction consistent with a loss of control caused by a combination of contact with another vehicle and a sudden evasive steer or overcorrection to a vehicle instability. This does not exclude the possibility of some physical contact between the two vehicles followed by an evasive steering action in combination with the application of the brakes.
97. Mr Johnstone gave oral evidence concerning the braking behaviour that could be expected from the Plaintiff’s vehicle. There is no reason to doubt his evidence that a heavy application of the brakes at say 60kph would have resulted in skid marks appearing within less than one tenth of a second which would represent about 2 metres of travel. At 70kph on heavy braking skid marks would appear in less time and over a distance of less than 2 metres. The range of times and distances to which this evidence relates tends to support the view that the skid marks as shown in Exhibit “H” commenced in the middle lane. This analysis tends to confirm Mr Jaouhar’s evidence to the effect that the Plaintiff’s vehicle was travelling in the middle lane and not the lane adjacent to the median strip.
98. Remarkably, Mr Johnstone’s first report dated 12 January 2007 was apparently prepared without him having been given the benefit of knowing of the existence of the police sketch showing skid marks on the roadway as shown in Exhibit “H”. After Mr Johnstone was shown the report of Mr Keramidas dated 2 May 2007, in which that sketch was reproduced, he prepared his second report which was dated 14 May 2008.
99. Mr Johnstone’s approach to analysing the dynamics and factors at play in the collision was to make assumptions as to the speed of the Plaintiff’s vehicle at various points before it came to rest and to make deductions from the recorded detail of the skid marks. This exercise necessarily lacked empiricism and was inherently speculative.
100. An example of the speculative nature of the task he undertook is evident from his estimates and calculations of energy absorption on impact which led him to make back calculations of the speed of the Plaintiff’s vehicle at various points. He did so by estimating the energy required to deform the Plaintiff’s vehicle as it hit the pole and the energy required to further propel the vehicle towards the fence and to its final resting place. Such an exercise, undertaken as it was without an actual examination of the vehicle, and without taking actual measurements of the intrusion deformity caused by the collision with the pole, is necessarily and inherently speculative. I therefore consider his evidence concerning his estimates of the speed of the vehicle at any given time to be of diminished and limited probative value.
101. I conclude that Mr Johnstone’s evidence does not provide me with any assistance in identifying the speed of the Plaintiff’s vehicle either at the time it was being driven in the middle of three southbound lanes or at the time it was skidding or indeed at the time it struck the pole and then the nearby fence.
102. However, I did find Mr Johnstone’s evidence helpful in evaluating Mr Jaouhar’s evidence concerning the braking behaviour of the Plaintiff’s vehicle in view of the skid marks observed and described by Senior Constable Cassidy. In this regard Mr Johnstone gave the following evidence:
“Q. Of course, in coming to the estimate of the two speeds, one with the handbrake applied and one with the footbrake applied as well, are you making assumptions that the footbrake is working efficiently and stopping the vehicle?
A. Making an assumption that it was sufficient to lock the wheels and there was certainly evidence of tyre marks.Q. Might those wheels have been locked when the handbrake was applied?
A. The rear wheels could have been, yes.Q. Would that affect your calculation of speed? In other words, although the footbrake was also applied, it may not have been working as efficiently as it could have?Q. If, however, the perception was that the brakes weren’t slowing the vehicle sufficiently so that the handbrake was applied, does that suggest anything to you about the efficiency of the braking system of the vehicle in any event?
A. If that statement’s correct - if one assumes that statement’s correct, then one would assume the brakes weren’t efficient and that the handbrake was the - the factor that locked the wheels.
A. If the brakes were only applied over the distance of the marks and they know it would, it would still between rear wheel only braking, which is the handbrake option, versus four wheel braking, which was the higher speed calculation. If that length of skid marks signifies only the handbrake application, there was a small amount of braking before that when he realised it wasn’t efficient - it wasn’t efficient or not working at all, there may have been another small increment of speed but we don’t know that.”
103. In my view this evidence serves to provide confirmation of the feasibility of Mr Jaouhar’s description of the braking sequence undertaken by the Plaintiff as it explains the course of the skid marks, suggesting that they have been caused by the locking of the rear wheels following an application of the handbrake either as a reaction to the events or based on a perception or judgment that the foot brake alone was not going to stop the vehicle or prevent the collision with the vehicle in front.
104. Another interpretation issue that Mr Johnstone acknowledged was the obvious difficulty interpreting the police sketch of the skid marks that comprised Exhibit “H”. Mr Johnstone described this as a very crude diagram prepared by a general duties police officer. That diagram did not permit a definitive differentiation between the phenomena of rear wheel lock-up or front wheel lock-up. It appears that either phenomena were possible, depending on how and to what degree the brakes were operated so that a sideways spin occurred.
105. Mr Johnstone agreed that the heavy application of the foot brake followed by application of the hand brake would have had the effect of locking the rear wheels. Mr Johnstone described how the action of swerving to avoid a collision, together with the action of braking, would have been sufficient to destabilise the Plaintiff’s vehicle. I consider this sequence to be a plausible explanation of events that caused the Plaintiff’s vehicle to behave as it did and skid as roughly described in Exhibit “H”.
106. However, in my view, any attempt to analyse with precision the forces in operation in these circumstances is bound to involve a high degree of speculation with doubtful probative value. Insofar as the exercise undertaken by Mr Johnstone purported to be scientific, it relied for its accuracy on the inherently inaccurate estimated depth of the intrusion or crush of the Plaintiff’s vehicle from the impact with the pole as a factor in the estimation of the speed of the Plaintiff’s vehicle. Mr Johnstone confirmed that this estimation depended upon four factors : first the pre-braking speed, secondly, the speed during the braking process, thirdly, the speed at the point of impact and fourthly, the point of impact or exit speed from the impact with the pole to the point of rest near the fence.
107. The method for reconstruction as outlined above is to analyse the elements in reverse order. It is instructive to look at the process of reconstruction in order to gauge the reliability of the process in this case.
108. Starting with the fourth element, the distance from the impact to the pole and the resting point of the Plaintiff’s vehicle after impact with the fence is uncertain. Both Mr Johnstone and Mr Keramidas each used a distance estimate of 7m which must necessarily be imprecise even though it appears that this estimate has its origins in one of Mr North’s survey plans. A problem with this element of the analysis is that other than by speculation, there is no reliable way in which the speed of the vehicle can be gauged during the short journey from pole impact to fence impact and then rest because this estimate requires an assumption of the exit speed on the vehicle bouncing off the pole and heading for the fence. There does not appear to be any reasonable way of inferring from the appearance of the vehicle or a description of the fence, as to the forces or exit speed involved in this element of the analysis.
109. The third element, namely the vehicle speed at the point of impact, in this case, is in my view plainly unknowable. Any attempt to deduce it from the extent of vehicle intrusion crush caused by impact with the pole must be speculative, especially where the vehicle has not been actually examined and no measurements were taken of the extent of that intrusion crush. In my view the estimation of the extent of the intrusion was an unsound foundation for further accurate analysis.
110. The second element, namely the speed during the braking process is not reasonably capable of being accurately described or deduced. There are too many variables involved in an attempt at analysis. These variables include the extent or degree of application of the foot brake before the hand brake was engaged, the efficiency of the foot braking mechanism and its components, the timing of the application of the hand brake to the point where wheel lock occurred, the condition of the tyres on the vehicle and the co-efficient of friction of the tyres and the roadway, amongst other things, to name but a few elements. On my analysis, in combination these variables preclude any useful expert analysis of speed because of the high degree of speculation involved in the exercise.
111. This then leads to an evaluation of the first element, namely the pre-braking speed. The only useful data for this element of the analysis is the point of commencement of the skid marks on the roadway. Apart from hazarding a guess as to the extent of the Plaintiff’s reaction time that would have inevitably lapsed from the time a perception arose in the Plaintiff’s mind for the need to brake and the time the foot brakes were maximally engaged, assuming the Plaintiff’s reaction time equated with data comprising published experimental norms used by the experts, in my view no useful inferences arise concerning the pre-braking speed of the Plaintiff’s vehicle.
112. It is important to observe that Mr Johnstone’s interpretation of the skid marks is based on impression rather than precision. This has precluded him from drawing definitive conclusions although, he did agree that a sideways spin was consistent with a rear wheel lock up induced by the application of the handbrake. Once the vehicle was skidding due to locked rear wheels, the estimate of speed from the data available is, in my view, entirely conjectural. That view gains emphasis when factoring in a swerving response to the left as a further potentially de-stabilising force affecting the course taken by the Plaintiff’s vehicle.
113. The difficulty with placing reliance on the speed estimate at the time of impact and beforehand is that the estimates are speculative and based on deductions from the photographic appearance rather than actual measurement of the deformity to the side of the vehicle following impact to the pole. I consider this method to form an insufficient basis for estimating the pre-impact speed of the Plaintiff’s vehicle.
114. The foregoing analysis reveals how inexact the science and process of crash reconstructions can be. This leads me to the view that, Mr Johnstone’s crash reconstruction analysis, although it represented a bona fide attempt at reconstruction based on very limited data, necessarily remains speculative in this case. I therefore consider it to be of very little probative value other than to provide a basis for confirming or not ruling out the feasibility of Mr Jaouhar’s factual account of the events.
The evidence of Mr Keramidas
115. In his report dated 12 May 2007 Mr Keramidas stated the following three conclusions concerning Mr Jaouhar’s evidence:
“1. It is virtually impossible for the scenario outlined by Mr Jaouhar to have taken place, or to have caused the loss of control of the Plaintiff’s Holden during this incident.
3. Having reviewed the report of Mr Johnstone, there is nothing in that report which caused the author to alter his opinions regarding the incident circumstances.”2. The estimated speed of the Holden at the start of the skidding was 62 to 67 km/h [assuming the braking was only available through the handbrake], or 78 to 83 km/h [assuming the foot brake was also activated and operational at that time]. If one were to accept that there was additional braking prior to the commencement of the skidding, then the approach speed of the vehicle must necessarily have been higher than the above estimates, and potentially much higher.
116. In my view there are a number of difficulties with the first of Mr Keramidas’ speculative conclusions in that it is not apparent from the face of the report as to which of the two scenarios outlined by Mr Jaouhar was being considered by Mr Keramidas to be a virtual impossibility. Mr Keramidas had two scenarios available to him for his analysis. These were first, the short statement of Mr Jaouhar that was recorded in the notebook of Senior Constable Cassidy which is referred on page 12 of Exhibit “7’ and secondly, the 16 point summary of the untendered evidence given by Mr Jaouhar in the Local Court proceedings as summarised by Mr Keramidas including the incorporation of some selected and incomplete quotes from the evidence given by Mr Jaouhar in the April 2001 Local Court proceedings, as was set out on pages 12 and 13 of exhibit “7”. In this regard:
(a) If the relevant scenario considered by Mr Keramidas is the one set out in short statement Mr Jaouhar gave to Senior Constable Cassidy then I would reject Mr Keramidas’ first conclusion because I prefer the collision dynamics analysis as was explained by Mr Johnstone wherein he agreed it was possible that rear wheel lock occurred due to handbrake application followed by sideways skidding into the pole. I would prefer this rational explanation rather than a blanket negation of Mr Johnstone’s description as being virtually impossible because Mr Johnstone’s description has a grounding in the facts described by Mr Jaouhar. I would also reject Mr Keramidas’ first conclusion because it does not accord with my own view of the inherent plausibility of Mr Jaouhar’s quoted statement as explained by Mr Johnstone and which is inconsistent with Mr Keramidas’ view that such a scenario was “virtually impossible” to have taken place.
(b) If the relevant scenario considered by Mr Keramidas in support of his first conclusion was his 16 point summary of Mr Jaouhar’s evidence given in the Local Court proceedings I would also reject that conclusion because the basis for it is not found in the evidence in these proceedings and it therefore remains opaque to analysis. This is so because the summary prepared by Mr Keramidas cannot be evaluated for accuracy, emphasis or appropriateness. This position arises because the Defendant elected not to tender the primary source for that summary, namely, the evidence given by Mr Jaouhar in the Local Court proceedings. In the absence of an agreement between the parties the summary cannot therefore be evaluated against the actual evidence given. I was not informed of any agreement of the parties to the effect that Mr Keramidas’ summary of the evidence given in the Local Court proceedings by Mr Jaouhar was accurate. On the contrary, the summarised concession that Mr Jaouhar did not see the Plaintiff pull the handbrake – item 14 of Mr Keramidas’ summary – is inconsistent with the evidence given by Mr Jaouhar to the effect that the Plaintiff used the handbrake. In these circumstances, absent the tender of the primary source, I am not prepared to accept a summary that is opaque to analysis : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.
117. I am therefore left in the unsatisfactory position of having to speculate on the basis for the first conclusion in the report of Mr Keramidas. Further, the detail of Mr Keramidas’ summary items 8, 9, 10 and 13 did not accord with the evidence which Mr Jaouhar gave in these proceedings. The Defendant did not seek to explore or reconcile the detail of these differences by cross-examining Mr Jaouhar on the areas of variance. In my view this state of the evidence results in an insurmountable forensic problem which precludes me from placing reliance upon or accepting the first conclusion in the report of Mr Keramidas.
118. In my view Mr Keramidas’ second conclusion, which sums up his analysis of the braking dynamics and estimates of the speed of the Plaintiff’s vehicle, is also of limited probative value. In my view this is so because the underpinning analysis for that conclusion is necessarily reliant upon his subjective and unexplained views as to the significance of selected aspects of the evidence given by Mr Jaouhar in the Local Court proceedings when the entirety of that evidence is unavailable for scrutiny in these proceedings. Although Mr Keramidas legitimately had that material before him when he prepared his opinion, the fact remains that this material was not tendered in these proceedings. The result is that Mr Keramidas’ second conclusion remains opaque to analysis and I therefore reject it : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.
119. Mr Keramidas’ third conclusion simply expresses disagreement with Mr Johnstone’s opinion, and as such requires no further analysis.
120. Even though I formed the view that Mr Keramidas’ second conclusion is opaque to analysis, before rejecting that conclusion I considered the appropriateness of reviewing Mr Keramidas’ summary of Mr Jaouhar’s evidence given in the Local Court against the fabric of the evidence given by Mr Jaouhar in these proceedings in order to determine whether the Defendant had established “a fair climate for the views of expert witnesses” as explained in Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 per Samuels JA at 509[G]. I have concluded that the task of comparing that summary with the evidence of Mr Jaouhar would be a fruitless exercise because the basis of the summary remains opaque to analysis. In my view this means that Mr Keramidas’ opinion is in the same category.
574. Mrs Saleh’s evidence was not specific as to how many hours she expended in the course of caring for the Plaintiff in those seven months. She gave her evidence through an interpreter so I was not able to make a direct assessment of the content of her evidence before it was interpreted. The question then is whether I should infer from her translated description of what she did in the care of her son in those seven months that such care amounted to care for at least 6 hours per day for at least 6 months and arising from an injury related need.
575. I accept Mrs Saleh’s evidence as being a truthful account of what she did by way of assisting her son during the seven months following his discharge from hospital. The tasks she described seemed to me to be in conformity with what one would expect to have been required when looking after someone who had suffered a fractured ankle as well as having brain damage. I observe that the Prince of Wales Hospital notes Exhibit “B(5)” in respect of the period just before the Plaintiff was discharged home refer to balance problems, ambulatory problems and memory problems. These matters, together with the need to assist with management of the Plaintiff’s anger and frustration, re-teaching him basic things like holding and moving objects, bathing him and prompting him about things he had forgotten in my view all bespeak many hours of care and assistance and justify the description “everything”. I infer that if the Plaintiff had been an in-patient at the Brain Injury Unit at that time the care he would probably have received there would have involved at least the equivalent hours.
576. Given the Plaintiff’s situation at that time and given the services that Mrs Saleh described in her evidence I find that following the Plaintiff’s discharge from hospital the care she provided to him exceeded the 6 hours per week for 6 months threshold required by s128(3)(a) of the Act. I find that such care was in fact provided for 6 hours per day, on each day over a period of the first 7 months following discharge from hospital. No claim has been made beyond that date. This amounts to 42 hours per week however only 40 hours per week are claimable.
577. Having accepted that the Plaintiff required 6 hours of attendant services per day for seven months following his discharge from hospital, I assess the Plaintiff’s claim for past domestic services that were provided to him gratuitously by his mother to be as set out in Table 1 in the amount of $20,846.
Future domestic care services
578. The Plaintiff makes a future claim for the value of the assistance of a person “to organise his life on a daily basis providing lists and checking up on tasks that the Plaintiff was required to carry out” for an estimated 1 hour per day. The Plaintiff claims the commercial cost of such services at $35 per hour for the remainder of his life. I consider that hourly rate to be reasonable.
579. The Defendant submits that the medical evidence suggests that the Plaintiff does not need any care of this kind at all. The Defendant further submits that there is nothing in the evidence which could support a suggestion that care was necessary for more than 6 hours per week in which event the threshold provided by s.128(3) of the Act would be met.
580. The Defendant relies upon the opinion of Dr Zeman which is to the effect that the Plaintiff does not require any domestic assistance. I do not accept Dr Zeman’s opinion in this regard because I consider that in arriving at that opinion he has had insufficient regard to the Plaintiff’s ongoing cognitive impairments that result from his traumatic brain injury.
581. On behalf of the Defendant it has been submitted that in respect of future care generally, there is no evidence that the Plaintiff has received assistance of any kind since about the end of 2000 and therefore no allowance should be made for this head of damage. I do not accept that submission since there is evidence from the Plaintiff’s fiancée, Miss Steinhagen-Punti, to the effect that the Plaintiff is forgetful to the extent that she has to remind him of events that have recently occurred, for example, even movies he has seen with her. She described how he needed reminders to pick up the mail. She described how she had to intervene to defuse his reaction to people because he readily took offence and could not see the humour of situations. She described how she had helped him to build new social relationships which is consistent with the accounts recorded by Dr Wan to the effect that the Plaintiff had lost some of his social connections. She also described how she had to assist him with daily organization of things such as his clothing, his licence, his car keys, his money for the day, because he was forgetful. She also assisted him with directions whilst driving.
582. I accept Miss Steinhagen-Punti’s evidence as to the nature and extent of the assistance she provides the Plaintiff as it appears to me to be reasonably framed around the Plaintiff’s cognitive impairments and it appears consistent with what someone with the Plaintiff’s earlier described post-accident sequelae would need to have provided to him in order to assist him to achieve a modicum of function day to day where the impact of his frontal lobe injury has impaired his ability to achieve this for himself independently.
583. I therefore allow the sum of $35 per day, 7 hours per week for future domestic care services which equates to $245 per week. I find the plaintiff will require this assistance for the remainder of his life particularly since there is no evidence that the effects of his brain injury will be the subject of further improvement. I consider that this sum is reasonable particularly since no claim has been made for a case manager either of the regular supervisory type or the drop-in type which if claimed would have called for a much higher level of damages for those services. The projection of $245 per week over 59 years at 5% (x 1009.3) yields $247,278. I assess the Plaintiffs damages for future domestic care services in the sum of $247,278.
Future medical treatment
584. The report of Dr Buckley, Exhibit “B(2)” at page 9 includes the opinion that the Plaintiff’s right ankle is likely to slowly develop osteoarthritic changes as a result of the fracture the Plaintiff sustained. Whilst Dr Buckley does not identify any specific medical treatment for this prognosis I believe it would be reasonable to allow the Plaintiff a reasonable sum to reflect the likely cost of periodic general medical and specialist consultations for management of likely future ankle problems.
585. The evidence to the contrary is found in the orthopaedic report dated 20 June 2006 from Dr John Cummine, Exhibit “16(4)” at page 4 where Dr Cummine comments that it is not possible to comment on the likelihood of the Plaintiff’s fracture being complicated by premature post-traumatic osteoarthritis. I find that statement to be based on an illogical consideration concerning prematurity of osteo-arthritis as there would be no likelihood of post-traumatic osteoarthritis developing without the antecedent injury. Accordingly, I do not accept Dr Cummine’s view.
586. I find the report dated 25 July 2006 from Dr Zeman, Exhibit “15(6)” to be non-contributory to this issue.
587. I also take into account the Plaintiff’s need for painkilling medication for his headaches. It is foreseeable that the time will come when he can no longer take the tablets that have been prescribed for his mother and it is unsatisfactory that he does so in any event. I consider that he will need to regularly attend a doctor for the purpose of obtaining prescription for such medication.
588. Despite the absence of evidence concerning the cost of such treatment, I am nevertheless required to attempt an assessment of damages to allow for the prospect of medical treatment being required to manage the Plaintiff’s likely osteoarthritis of the right ankle.
589. Notwithstanding the absence of direct evidence as to the cost of possible treatment to the right ankle, doing the best I can to be fair to the Plaintiff whilst not being unfair to the Defendant, I allow the Plaintiff the sum of $10,000 towards the cost of possible future medical consultations and treatment of his right ankle. This is the equivalent of approximately $10 per week. I assess the Plaintiff’s damages for future medical treatment in the sum of $10,000.
Future paramedical treatment
590. The Plaintiff suffers from the ongoing effects of headaches, impaired concentration, depression, aggressiveness and behavioural mood disturbance. These are matters that should not be permitted to remain without some form of regular review and therapeutic intervention. The report dated 14 October 2006 from Dr Watson, Exhibit “17(7)” at page 4 identifies the fact that there are non-pharmacological therapies, that can be directed at those issues. I infer from this that he was referring to paramedical treatments. I consider that these problems justify an allowance for the possibility that the Plaintiff will need future psychological consultations to assist him to manage his post-traumatic brain injury problems that I have outlined above. I accept the appropriateness of Dr Delaney’s suggestion in this regard.
591. The Plaintiff’s problems with his memory and his frustrations which flow from his head injury are unlikely to recede and will most probably require management strategies that could be beneficially provided by intermittent contact with a skilled psychologist. Also, I do not ignore the prospect that the Plaintiff may eventually require some physiotherapy treatment for osteoarthritis in his right ankle. Notwithstanding the absence of evidence as to the incidence, likely timing and cost of such possible paramedical treatments, doing the best I can to be fair to the Plaintiff whilst not being unfair to the Defendant I allow the Plaintiff the sum of $12,500 towards the cost of possible future paramedical treatments. This is the equivalent of $650 per annum. I assess the Plaintiff’s damages for future paramedical treatment in the sum of $12,500.
Future pharmaceutical costs
592. The evidence discloses that in order to treat his recurring headaches the Plaintiff has been taking painkilling tablets such as Panadol and Panadeine Forte which had been prescribed for his mother. As such these medications are available to him in his mother’s home where he presently resides. As a consequence, the Defendant argues that as the Plaintiff has not previously incurred expense in this regard, it is therefore unlikely he will do so in the future. On the other hand, the evidence discloses that the Plaintiff and Miss Steinhagen-Punti are engaged and are planning a family. From this I infer they will eventually have their own household and the painkillers ordinarily kept in the home of the Plaintiff’s mother, who appeared to me to be in her sixth decade, will no longer be available to him without cost. In any event, it is inappropriate that the Plaintiff relies on his mother’s supply of painkilling medication.
593. In the absence of evidence as to the specific costs of such medication I propose to allow a lump sum to defray the cost of the Plaintiff’s future need for pain killing medication in the rounded sum of $7,500. I test the reasonableness of this sum by noting that over the ordinary course of the Plaintiff’s life expectancy of 59 years this sum is the equivalent a little less than $7.50 per week. I therefore assess the Plaintiff’s reasonable injury-related need for future medications in the amount of $7,500.
Future transportation costs
594. There is evidence that the Plaintiff should not be driving a motor vehicle on account of the effects of his traumatic brain injury.
595. The issue was first raised by the Plaintiff’s treating neurologist Dr Presgrave. More recently, this issue has arisen in Exhibit “B(2)” which comprised a report dated 28 February 2006 from Dr Stephen Buckley, a rehabilitation specialist. At page 10 of his report Dr Buckley stated:
Given the level of cognitive impairment identified on the clinical neuropsychological assessment, and in particular, the impaired concentration, I remain concerned that Mr Mahony continues to drive.“ Driving
I think it unlikely that he will be permitted to continue driving for the indefinite future as it is likely that his reduced concentration will result in accident, and/or infringement and it is likely that ultimately he will lose his licence.”
596. On the third day of the trial the issue of the Plaintiff’s driving licence which emerged from Dr Buckley’s report was drawn to the attention of counsel, noting that no claim relating to that matter had been raised in the particulars of claim. No further evidence was called in relation to this issue, nor was Dr Buckley’s opinion on the driving issue challenged. Notwithstanding this evidence no claim was made in this regard. In my view it is not a sufficient answer to the issue to say that the Plaintiff has been driving a vehicle in any event. This state of the evidence raises a potential for injustice to the Plaintiff because on one view there is uncontroverted evidence that there is a medical concern over the Plaintiff continuing to drive. Dr Buckley’s opinion is that ultimately, for the reasons he has described in his report, it is unlikely the Plaintiff will be able to drive indefinitely and that ultimately he will lose his licence. I accept Dr Buckley’s view for the reasons he states. I find that the Plaintiff will probably lose his licence in the not too distant future by reasons of his behavioural and concentration problems that result from his traumatic brain injury.
597. This state of the evidence and this finding creates a dilemma for the assessment of damages. Having come to the conclusion that the Plaintiff will probably lose his licence, in my view this gives rise to an injury based need for transportation costs on the basis that the Plaintiff will in the not too distant future, be no longer permitted to drive a motor vehicle. The likely consequential costs that would arise from such a circumstance could be estimated on a number of potential bases within a spectrum ranging from the regular cost of taxis to the possibility that at the age of 26 the Plaintiff may need to be provided with driving services either at a commercial hourly rate or gratuitously. Either way, in my view such services could arise to be costed over a significant period of the Plaintiff’s remaining years. On the other hand, if I were to undertake a monetary assessment of the issue in the absence of a particularised claim supported by submissions, this would cause prejudice to the Defendant.
598. Doing the best I can to do justice between the parties, having accepted the opinion of a medical specialist whose role it is to assess such issues, to the effect that the Plaintiff is impaired in his capacity to drive on account of his reduced concentration and will ultimately lose his licence, I have decided to take this issue into account in my assessment of the Plaintiff’s entitlement to damages for non-economic loss.
599. I therefore make no specific allowance for future transportation costs but I have made a modest allowance within my assessment for non-economic loss to reflect a measure of inconvenience that the Plaintiff will encounter in this regard, and which is likely to continue to adversely affect the amenity of his life.
Past out-of-pocket expenses
600. The total of the Plaintiff’s past out-of-pocket expenses have been mathematically agreed by the parties to be in the sum of $4,633.25. I find this sum to be reasonable and I assess The Plaintiff’s out-of-pocket expenses in the sum of $4,633.
Funds management charges
601. The Plaintiff has made a claim for funds management charges claiming that his traumatic brain injury has damaged his capacity to invest and manage his funds. The Defendant contests the Plaintiff’s entitlement to such damages.
602. It is necessary to survey the evidence on the issue of the Plaintiff’s financial competence and his need for assistance with funds management.
603. On 14 July 2003 the Plaintiff was assessed by Dr Patrick Chew at the request of Centrelink. The product of that assessment was tendered as Exhibit “D” in the proceedings. Following his assessment of the Plaintiff Dr Chew concluded that the Plaintiff had no problems with simple calculations and banking.
604. The Plaintiff gave brief evidence that he had some problems managing his finances and as a result has incurred debts. His evidence in this regard was as follows:
“Q. You have told us that you have difficulties with memory and so forth. Have you also had some problems in terms of managing your finances and things like that?
A. Yeah.Q. How has that played out? What's happened?
A. Just - just not having a job all the time and I can't - I can't like save money and if I--Q. Have you got yourself into some pretty solid debt?
A. Yeah, that's what I mean, yeah.Q. That has been since you've had this accident, has it?
A. Yes.CRANITCH: No, your Honour, I suspect not. The plaintiff sues by a tutor as your Honour might have observed. It's a borderline case in my view and I was hoping I would be able to adduce some evidence about that. He certainly has some problems.”HIS HONOUR: Do I need to know more about this, Mr Cranitch?
605. It is common ground that the Plaintiff has incurred substantial debt by not paying off his credit card debts.
606. The evidence of the Plaintiff’s mother on the issue of the Plaintiff’s financial competence was limited to a reference to the Plaintiff’s forgetfulness when asked to pay the rent for her on one occasion. The Plaintiff’s brother did not give any evidence concerning the Plaintiff’s financial competence. The evidence of the Plaintiff’s fiancée was focussed upon the Plaintiff’s forgetfulness which led her to have to organise his belongings for him, including his money for the day. This evidence did not deal with the Plaintiff’s competence.
607. A survey of the medical opinions in the case on the subject of the claim for funds management is informative.
608. Dr Buckley did not express an opinion on the issue of funds management. The treating psychiatrist, Dr Benjamin and the treating neurologist, Dr Presgrave, expressed no opinions on the issue either. Dr Kaplan’s report did not deal with the issue. The Brain Injury Unit clinical psychologist, Mr Delaney, did not mention the issue in his assessment report.
609. Dr Zeman’s opinion on the issue of financial management was:
“On his general presentation during the assessment, I would not consider that he requires financial management as a result of the accident. He did not do well at school before the accident and on the basis of that alone would be likely to obtain some benefit from financial management. However, this does not mean the accident caused a need for this.”
610. Associate Professor Phillips addressed the issue in the following terms:
“On the basis of my assessment of Mr Mahoney, and taking into consideration all other information now available to me, I advise that the Plaintiff is so impaired as to require a Tutor to be appointed to provide instruction. Further the plaintiff will be at risk of dissipating any moneys awarded to him. In keeping with this, control will need to be exercised in the longer term over his financial affairs.”
611. In his oral evidence Associate Professor Phillips expressed his concern over the Plaintiff’s lack of response to his credit card debt obligations in the context of the problems associated with the Plaintiff’s frontal lobe disorder.
612. In oral evidence Dr Smith agreed that the Plaintiff would need help managing his finances because of his impulsivity and his cognitive problems. Dr Smith agreed that the Plaintiff’s problem was one of management. Dr Roberts noted the views of Associate Professor Phillips concerning the risk of funds dissipation and a need for control over the Plaintiff’s financial affairs but offered no views of her own on the subject.
613. The Defendant submits that the Plaintiff has not made out a case for an award of damages for funds management charges. That submission is based upon several bases, namely;
(a) There is a question raised as to whether the injury or “ congenital and cultural issues ” caused the need for funds management;
(c) Although the Plaintiff would benefit from some financial advice, his long history of irresponsibility would have necessitated assistance with funds management in any event.(b) There is no difference in the Plaintiff’s intellectual function due to the injury;
614. In contrast, the Plaintiff’s submissions rely on the cited opinion of Associate Professor Phillips. On behalf of the Plaintiff it is submitted that a decrease in the Plaintiff’s intellectual functioning and associated frontal lobe problems caused by the injury would justify an award of damages for funds management.
615. I have concluded that superimposed upon the Plaintiff’s pre-existing low average borderline intelligence the collision has caused the Plaintiff to suffer a traumatic brain injury that has exacerbated and extended the Plaintiff’s pre-existing behavioural issues by affecting the frontal lobes. The Plaintiff now suffers from problems with memory, concentration and behavioural impulsivity. His cognitive functioning has declined as a result of his brain injury. He has already demonstrated financial incompetence by incurring substantial debts on his credit cards. In these circumstances I do not accept the Defendant’s submissions to the effect that pre-existing “congenital and cultural issues” and the Plaintiff’s long history of irresponsibility have necessitated the need for funds management assistance. Nor do I accept the Defendant’s submission that there has been no difference in the Plaintiff’s intellectual functioning due to his injury. The Plaintiff’s pre-existing behavioural irresponsibility relied upon by the Defendant did not extend to financial matters. Irresponsibility of that kind only emerged after the Plaintiff had incurred brain damage.
616. In these circumstances I consider the recommendation of Associate Professor Phillips for there to be control on the Plaintiff’s financial affairs to address and avoid the risk of the Plaintiff dissipating his funds to be an appropriate recommendation in the Plaintiff’s circumstances. I prefer the opinion of Associate Professor Phillips on the issue of funds management to that of Dr Zeman whose opinion was based on the Plaintiff’s general presentation rather than on a full appreciation of the effects of the Plaintiff’s brain damage on his intellectual functioning.
617. Accordingly, I find that the Plaintiff’s brain damage has rendered him unable to manage his financial affairs so as to require that his compensation funds to be managed on his behalf. I find that this will incur expense for the Plaintiff for which he should be compensated.
618. Accordingly, I propose to follow the approach taken by Bell J in Russell v Rail Infrastructure Corporation [2007] NSWSC 447 following Nominal Defendant v Gardikiotis [1996] HCA 56; (1996) 186 CLR 49. It follows that the Plaintiff is entitled to an assessment of damages for the cost of funds management over his lifetime in accordance with the principles stated in Willetts v Futcher [2005] HCA 47; (2005) 221 CLR 627.
Summary of assessment
619. My assessment of the Plaintiff’s damages claim is summarised as follows:
(a) Non-economic loss (b) Past loss of earning capacity (c) Future loss of earning capacity (d) Past loss of superannuation (e) Future loss of superannuation (f) Past domestic care services (g) Future domestic care services (h) Future medical treatment (i) Future paramedical treatment (j) Future pharmaceutical costs (k) Future transportation costs (l) Past out-of-pocket expenses (m) Funds management charges Total interim assessment
Disposition
620. I have concluded that:
(a) The Plaintiff was injured as a consequence of the negligence of the driver of an unidentified motor vehicle;
(b) There was no contributory negligence on the part of the Plaintiff;
(c) Due search and inquiry has failed to identify the owner and driver of the unidentified motor vehicle;
(e) Damages should be assessed on an interim basis in the sum of $1,083,398 excluding any allowance for funds management charges.(d) The Plaintiff is entitled to an award of damages for his injuries including a component of damages for funds management charges;
Interim orders
621. I make the following interim orders:
(a) I direct the entry of a verdict in favour of the Plaintiff in the sum of $1,083,398;
(c) I direct the proceedings be listed before me on 22 May 2009 for the purpose of making consequential orders by consent or, in the absence of consent, to enable a date to be fixed for further evidence and argument on the issues of funds management charges and costs.(b) I defer the entry of final judgment and I defer making any orders for costs pending the assessment of damages for funds management charges;
TABLE 1
PERIOD WEEKS WEEKLY
s.128(4)
RATE1. 03.07.2000 to 18.08.2000 06.57 $673.00 2. 19.08.2000 to 17.11.2000 12.85 $689.90 3. 18.11.2000 to 03.02.2001 11.00 $687.20 30.42
3
15
3