Serrao v Cornelius - [2015] NSWDC 4

District Court

New South Wales

Medium Neutral Citation: Serrao v Cornelius [2015] NSWDC 4
Hearing dates: 20, 21, 22, 23, 24, 27, 28 October 2014
Decision date: 06 February 2015
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
Judgment and verdict for the Plaintiff. The Defendant found to be negligent, the amount of compensation for which is to be reduced in proportion to the contributory negligence of the Plaintiff.

Catchwords: PERSONAL INJURY – motor vehicle accident – negligence – contributory negligence – driving under the influence – damages
Legislation Cited: Civil Liability Act 2002, ss 5D, 5R, 13 and 49
Civil Procedure Act 2005, s 77
Evidence Act, s 177
Motor Accidents Compensation Act 1999, Division 1 Part 1.2, ss 5F, 7B, 7F, 126 and 138
Road Rules 2014, rr 12 and 238
Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited: Axiak v Ingram [2012] NSW CA 311
Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529
T and X Company Pty Ltd v Chivas (2014) NSWCA 235
Taheer v Associated Australian Motor Insurers Ltd (2010) NSWCA 191
Category: Principal judgment
Parties: Mr Daniel Serrao (Plaintiff)
Ms Claire Cornelius (Defendant)
Representation:
Counsel:
Mr T Boyd (Plaintiff)
Mr D Wilson (Defendant)
Solicitors:
Herbert Weller (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s): 2013/00215744

INDEX

PLAINTIFF’S LIABILITY CASE - paragraph 14
DEFENDANT’S LIABILITY CASE - paragraph 17
LIABILITY FACTS IN ISSUE - paragraph 18
WERE THE DEFENDANT’S HEADLIGHTS ON ? - paragraph 20
SHOULD THE DEFENDANT’S HEADLIGHTS BEEN FUNCTIONING ON HIGH BEAM ? - paragraph 38
WHAT WAS THE DEFENDANT’S VISIBILITY ? - paragraph 46
WHAT WAS THE DEFENDANT’S PATH ? - paragraph 58
Tegan Mobbs - paragraph 59
Belinda Vassallo - paragraph 61
Sergeant Gregory David Neill - paragraph 67
Senior Constable Peter West - paragraph 79
Analysis of Police Evidence - paragraph 89
Expert evidence - paragraph 93
Lay witnesses - paragraph 97

WHAT WAS THE DEFENDANT’S SPEED ? - paragraph 104
PERCEPTION REACTION - paragraph 111
THE COLLISION DYNAMICS AND THE PLAINTIFF’S MOVEMENTS - paragraph 116
The Plaintiff - paragraph 117
Danny Schneider - paragraph 127
Lee Gallagher - paragraph 130
Julie Sandstrom - paragraph 139
Abbie Newton - paragraph 143
The Defendant - paragraph 148
Analysis - paragraph 150

WAS THERE ANY LATERAL MOVEMENT BY THE PLAINITFF ? - paragraph 154
WHAT WAS THE LIKELY POINT OF IMPACT? - paragraph 159
WHAT ROLE DID ALCOHOL PLAY ? - paragraph 160
Dr Judith Pearl - paragraph 163
Dr Helen Douncey - paragraph 164

CONTRIBUTORY NEGLIGENCE - paragraph 166
DAMAGES - paragraph 179
Analysis - paragraph 210

CONCLUSION AND ORDERS - paragraph 226

Judgment

Plaintiff Daniel Terrence Serrao, by his tutor Alicia Serrao brings proceedings in this court seeking damages in respect of a motor accident which occurred on the 14th of August 2010.
The circumstances of the collision were that the Plaintiff and his friend, Daniel Schneider attended a 21st birthday party for a Ms Abbie Newton at the Masonic Hall in Orchard Hills.
At the conclusion of the party the Plaintiff and Mr Schneider had difficulty finding a taxi and decided to walk towards the Northern Road to see if a taxi could be found there. They walked along a route which took them to Homestead Road. Whilst walking in a westerly direction along the southern side of Homestead Road, a beige Ford Laser sedan driven by the Defendant struck the Plaintiff from behind. In the car at the time were Lee Gallagher (front seat passenger), Abbie Newton (mid rear section of seat) and Doug McIntosh (rear passenger side). The latter was asleep and did not witness the accident, or events leading to it. All had previously been in attendance at the same party with the Plaintiff and Mr Schneider.
Moments before the accident Ms Julie Sandstrom was driving her vehicle in an easterly direction along Homestead Road to collect her son Matthew from the Masonic Hall.
The accident occurred at around 1.40am at a location approximately 300 metres east of the intersection of Homestead Road and Northern Road at Orchard Hills.
At the time of the accident it was extremely dark and there was no street light illumination. The only available source of lighting came from the headlights of the motor vehicles on Homestead Road.
Both the Plaintiff and Mr Schneider were wearing dark clothing at the time, including black jeans and black hoodies. The Plaintiff was wearing white shoes with yellow trimming which were ankle length. They were Exhibit B in the proceedings. Mr Schneider’s shoes were black with a bit of green on them.
At approximately 2.30am on the day of the accident the Plaintiff’s blood alcohol concentrate was not less than 0.136 grams of alcohol per 100 millilitres of blood.
The Defendant’s blood alcohol concentration was assessed roadside at 0.150 and later, 0.115.
There were two parallel skid marks deposited on the road surface by the front tyres of the car as a result of brake application. Those skid marks were 10.5 metres in length of the near side tyre and 10.8 metres in length for the off side tyre.
Following the accident the Defendant’s vehicle came to a stop approximately 47 metres from the end of the skid marks (see Exhibit G [16]). Just before stopping, Mr Gallagher left the Defendant’s vehicle and was tackled by Mr Schneider.
Following the collision, the Defendant landed on the northern side of Homestead Road. After hearing a thud Ms Sandstorm stopped her vehicle, activated hazard lights and proceeded to walk towards what she found was the accident scene.
It is not in issue between the parties that the Plaintiff sustained severe head injuries and, subject to liability, would be entitled to the statutory maximum for non-economic loss and damages for economic loss based on no residual earning capacity.

PLAINTIFF’S LIABILITY CASE

The Plaintiff pleads the case against the Defendant alleging negligence in that the Defendant failed to have headlights illuminated, or alternatively, failed to have them activated to high beam, moments before the accident.
Secondly, the Plaintiff contends that the Defendant’s vehicle was travelling partly off the carriageway at Homestead Road shortly before the collision at the moment of the commencement of the skid marks depicted in photograph 85 of Exhibit C. The Plaintiff’s contention is that at the time the Defendant’s capacity to drive and driving ability was very significantly impaired by the influence of alcohol. As a consequence of the Defendant’s actions, the Plaintiff’s reaction when faced with the vehicle coming from behind was to move to the right to avoid the collision. The Plaintiff’s contention is that although the exact point of impact of the roadway is not certain, the likely point is with the zone commencing a few metres to the east of the commencement of the skid marks and a few metres to the west of the commencement of the skid marks.
Accordingly, the Plaintiff alleges that the accident occurred as a consequence of the Defendant’s negligence but, in the alternative, alleges that the accident was a blameless accident pursuant to the provisions of Division 1 of Part1.2 of the Motor Accidents Compensation Act 1999 (hereinafter ‘1999 Act’). In the latter case, reliance is made on s 7B(1) of the 1999 Act to assert that the accident was deemed to have been caused by the fault of the Defendant.

DEFENDANT’S LIABILITY CASE

The Defendant disputes negligence and pleads contributory negligence. She contends that the Plaintiff, at the time of the collision, was walking on the carriageway in a westerly direction, darkly clothed and affected by alcohol. Alternatively, it is asserted that if the accident was a blameless one, there should be a reduction by 100% by reason of s 5F of the 1999 Act, determined in accordance with a decision of the Court of Appeal in Axiak v Ingram [2012] NSWCA 311 at [83] and [85].

LIABILITY FACTS IN ISSUE

The essential issues in dispute between the parties, the resolution of which will inform questions of breach of duty and/ or contributory negligence: -

whether the Defendant’s headlights were activated in the moments prior to the collision and if so, whether at the relevant time, they should have been on high beam;

the Defendant’s visibility at the time of the accident and whether she was able to bring her vehicle to a stop in a way that would have avoided the collision;

the path of the Defendant’s vehicle;

the Defendant’s speed and perception reaction in the circumstances;

the point of impact relative to the westbound lane of Homestead Road;

the collision dynamics, the path of the Plaintiff’s travel prior to the point of impact and in particular if there was any lateral velocity at the time of impact.

The role played by alcohol

I now turn to consider these.

WERE THE DEFENDANT’S HEADLIGHTS ON ?

The Plaintiff stated that he did not remember the car approaching from behind him and he did not remember seeing the headlights of the car shining (TP25.29). It was unclear on his answers whether this was based on something he had been told, as he also stated in his answer, “she didn’t have any headlights that worked” (TP25.33).
When questioned about the source of his knowledge regarding the headlights, the Plaintiff referred to what his counsel stated in opening. When it was put to him that he did not actually have a recollection of the actual accident, he acknowledged this and agreed that it was based upon what other people had told him since the accident (TP26.25-30).
Mr Schneider gave evidence that at the time of the incident the Plaintiff was, “a little bit behind me, roughly two metres.” He did not recall hearing the Defendant’s car approach. He had no recollection of seeing headlights from the Defendant’s vehicle, just two brake lights. Later in cross-examination he qualified his answer stating at TP46.49: -

“I couldn't say 100%. I seen red lights. That's all I seen”

Then later at TP47.4

“I know when they come on and when they don't but I remember seeing the brakelights, red brakelights and then that's it. I just remember red lights.”

Then at TP47.7: -

“Q. Is it the case, as you've just said, that your only recollection is all you remember seeing in terms of lights were red lights at the rear of the vehicle?
A. Yes.
Q. Is that correct?
A. Yeah.”

Then at TP48.30, he stated: -

“A. I never seen headlights.”

Then at TP48.32: -

“All I can say is I didn't see headlights, so whether they were on or not, I don't know. I never seen any headlights.”

Julie Sandstrom’s evidence was that she did not recall seeing any vehicles in the opposite direction as she was driving from Northern Road along Homestead road; that is she saw no vehicles coming from the hall towards Northern Road. In cross-examination she stated that, as she was travelling, the only illumination was coming from her headlights, which were on the normal beam, not high beam.
As she made her way to the accident scene, she said that she was walking back in total darkness and walking back to voices. She stated that all she could see were the lights at the top of the Northern Road. In the area where she made her observations of the person earlier described, she stated she did not see any light. Some taxis and a car had come down from the Northern Road and provided some illumination and someone used their mobile phone or a source that was probably a mobile phone to see the Plaintiff’s face.
In cross-examination Mr Gallagher stated that his recollection was that he thought the lights were on when he got into the Defendant’s vehicle at the Masonic Hall.
He acknowledged that in an earlier statement to police on 18 August 2010, which became Exhibit 9, he stated that the front headlights were on, adding, “that’s what I believed back then.” He further acknowledged that if he was travelling in the car and it was so dark and the lights were off, that would have caused him concern. He did recall however, that it was “pretty dark”.
The observations made by Mr Gallagher (after he heard a scream from Abbie Newton) which I will come to later, certainly could not have been made in the absence of illumination on the roadway; such illumination could only have come from the Defendant’s vehicle.
Ms Newton’s evidence was that until the car stopped after the collision, the headlights were definitely on, although she cannot say if they were turned off when the car was stopped after the collision. Once again her observations (which I will come to) could not have been made in the absence of illumination at the time.
The Defendant stated that the first time anyone was in the vision of her headlights, and she and the other people in the car saw all at once, she put her brakes on immediately. The screaming in the car overlapped with the brake application. Her recollection was that the Plaintiff was in the middle of the road in front of her side of the car when she saw him in the beam of her headlights.
The significance of any activation of the high beams arises from the statement of Senior Andrew Paul Daly dated 2 September 2010 which was tendered as a statement in the form of an Expert Certificate under s 177 of the Evidence Act as Exhibit F. Senior Constable Daly conducted a mechanical examination of the Defendant’s vehicle on 31 August 2010 and was, at the time, with the Engineering Investigation Unit of the NSW Police. The evidence, which was not in contest between the parties, relevantly stated at [11]: -

“The electrical system was examined. Both the headlamps operative on low beam. When the headlamps were switched to high beam both ceased operating. Both high beam lamps were found to operate when the dipper switch was pulled rearwards in the “flash” mode, however neither operated when the switch was pushed forward in the “on mode. Based on this result I have formed the opinion that there may be a fault within the headlamp switch itself. All remaining lighting system components were correct in operation.”

If the Defendant had sought to activate the high beams from low beam by pushing the dipper switch forward in the on mode, the headlights would not have operated at all.
In all, I am satisfied that the Defendant had her low beam headlights activated at the time of and moments leading to the accident. The Defendant and passengers in her vehicle would have had a greater opportunity to notice if it had it been otherwise and such observations as they have made would have been impossible to make in what would otherwise have been largely darkness. None of these witnesses suggest that the headlights switched at any point from low beam to darkness as would have occurred if the high beam dipper switch were pushed.
The evidence of the Plaintiff, Mr Schneider and Ms Sandstrom all indicate an absent recollection of seeing headlights. Their observations leave open that following the accident the Defendant not have had her headlights on after the car came to a stop. Ms Newton indicated that she did not know if they were turned off at the time (TP189.25)). However at TP192.3 she stated: -

“Like from a little past the Masonic Hall to the Northern Road where the intersection was pretty much no lights there.”

The Defendant’s evidence was that her car’s engine was turned off (TP280.5) but she left the lights on because it was dark and “we couldn’t see”. She stated, “I think Abbie got out of the car, but Lee got out of the front seat and ran around the front of the car in the headlights and then Danny Schneider, I saw him tackle Lee.”
Mr Gallagher’s evidence however, was that the car was still moving when he got out and ran towards the back of the car before being tackled (TP69.5).
To the extent it is relevant I am satisfied that the headlights were turned off at some point following the car coming to a stop. I am satisfied however, that the brake lights were on at this time as Mr Schneider observed in his evidence.
The Plaintiff contended that on the basis of the headlights being off after the accident (as depicted in the tendered photographs) I should draw an inference that they were not activated around the time of the accident. On this matter I accept the Defendant’s argument that what happened after the accident is an unsound basis for such a finding.

SHOULD THE DEFENDANT’S HEADLIGHTS BEEN FUNCTIONING ON HIGH BEAM ?

I have earlier referred to the evidence, being Exhibit F, from Senior Constable Paul Daley, relating to the examination of the electrical system of the headlamps. The Defendant’s evidence was that she did not know that there was a problem with the activation of the high beam lights although she has since been made aware.
The Plaintiff has contended that, in the moments before the accident, the Defendant should have activated her headlights to high beam. The Defendant stated that her headlights were on low beam and that she did not use her high beams because she saw one or two cars coming in the other direction.
The Defendant’s evidence was that she could not recall at what stage she recalled seeing other vehicles. She acknowledged that if there were no cars, high beams were needed in the evening but stated that she had never previously used high beam. She had, had the car in question according to her for maybe a couple of months before the accident at the most.
The Defendant could not recall how long before the accident she made an observation of another vehicle travelling in the opposite direction. Whilst she maintained her lights were on low beam at the time, she could not recall why she did not put her lights on high beam when the vehicle passed her. When further questioned regarding this, at TP297.50, she stated: -

“I was approaching a main road where it was heavily lighted. I probably just – I was close to that road so it’s probably why I didn’t put them on.”

At TP298.10, she stated: -

“I would say that that could have been the reason, but I can’t say 100%”

Then at TP298.14: -

“why I didn’t because there was another car coming in the other direction”

Then at TP298.16, she was asked again, why, when the car passed, she did not put the lights on high beam: -

“shortly after that would have been the accident”

The Defendant’s answers in cross-examination on this issue were confusing. At one point she suggested that she did not do so because of the proximity to the Northern Road (TP297.50 and 298.10). Then at TP298.14 she stated that it was because another car was coming in the opposite direction and shortly after that would have been the accident. Earlier however she stated that she could not recall how long before she made her observation of the other vehicle.
The evidence of Ms Sandstrom was that, at around 1.30am on the morning in question, she proceeded in her vehicle down Northern Road and made a left hand turn into Homestead Road. She stated that it was very dark and proceeded at about 40 kilometres per hour. Then she said at TP89.30

“I followed the road down, being very aware of the gravel on the right side of the road, to keep my position on the road properly. Just out of the light of my headlight, I noticed a boy who was approaching or on the side of the road, just on the gravel part. It appeared to be that from my judgment.”

She stated that she saw the person very quickly out of the side of her headlights and estimated about 4 metres away. In chief, she stated that she continued along the road to collect her son and then intended, on the way back, to have a front on view of anyone who had been walking along the road if they were going to the main road, which is where she assumed they would probably be going.

A short distance later she heard a thud or a bang behind her.
In the circumstances, bearing in mind the proximity to the passing of Ms Sandstorm’s vehicle (which coincidentally was also on normal beam) and the fact the accident occurred a short moment thereafter, the evidence does not, on the balance of probabilities, enable me to form a view that the failure to activate functioning high beams was a breach of duty in the circumstances.

WHAT WAS THE DEFENDANT’S VISIBILITY ?

Accepting that the Defendant had low beams activated at the time of the accident, the question arises as to what the visibility was like in the driver’s position at the time surrounding the collision, leaving aside for the moment the precise position of the Plaintiff.
Mr John Jamieson from Jamieson Foley Consulting Forensic Engineers prepared a report, on instruction from the Plaintiff’s solicitors dated 12th December 2010, which was Exhibit J in the proceedings. He assumed that for the purposes of his report the Plaintiff was wearing dark clothing at the time of the collision and therefore had low reflectivity. He states in his report that against a dark background to a stationary person wearing dark clothing would be hard see how to see if a moving object would be more conspicuous than a similar stationary object. He then assumed that the driver had low beam headlights illuminated at the time. He stated the following on this basis at p10 at the top of page 11 of Exhibit J: -

“Data published by Grimes (1987) for the recognition distance of objects and the low beam headlights on straight road gives values of 50.4metres to a near side object and 24.8 metres to an offside object. This data related to a target within a 10% reflectivity factor that is 10% of incident light is reflected.
From Olsen 1996 it can be determined that the average driver response distance to darkly clad pedestrians (wearing blue denim) with a reflectivity of less than 5% is about 150 feet or about or about 46 metres under low beam illumination and with pedestrian positioned to the left (on the right in US studies).”

Mr Jamieson conceded that given a description of the Plaintiff being darkly clad, of dark skin, wearing a dark top, hoodie, dark pants and white shoes (Exhibit B) which he examined and moving away, there would be less reflectivity than the person described in the Grimes study. He also accepted that the further to the right of the vehicle the person is, the lesser the visibility, due to the fact that low beams are asymmetrical to reduce glare to oncoming motorists (TP 174.45).
Mr Roger Stuart Smith, Consultant Traffic Engineer prepared a report for the Defendant solicitor dated 28 February 2014, which was Exhibit 5 in the proceedings. In section 10.3 of the report at pp 25.2a, he details his views on headlight pattern analysis.
He formed the view that an illumination threshold of 15 lux would have been required for detection by approaching drivers. He then states at p 26 having himself participated in headlight mapping exercises and research on a number of occasions, the headlight patterns of vehicles with H4 Series headlight globes (specified for the Defendant’s vehicle). He assumed that the Plaintiff was directly on the road in front of the Defendant and so the available time to react and attempt to avoid the collision was the visibility distance to the Plaintiff. Accepting also that in the time of visibility the Plaintiff moved forward 1 to 2 metres, he assessed the overall visibility distance ranging between 28 to 38 metres being (the 15th to 85th distance with a mean likely distance of 28 metres) within which to avoid a collision.
In cross-examination Mr Stuart Smith acknowledged that if the appropriate finding was that the Plaintiff was at the edge of the roadway, then the findings he made in the report would need to be clarified. He acknowledged that his findings were on the basis that the Plaintiff was not on the shoulder of the road (TP315.15)
In re-examination Mr Stuart Smith was asked about the impact that a location of the Plaintiff on the left hand side would have on visibility distances. That is to be found at TP320.20 to 321.20.
Using Appendix X to his report exhibit 5, he calculated that, based on the Plaintiff standing in line with the left hand side of the vehicle, the distance would be 31 metres and to the right of the centre of the vehicle, the distance would be 26 metres. These are 50th percentile figures. Depending upon whether the Plaintiff moved, an additional 1 to 2 metres would need to be added.
Dr McIntosh was instructed by the Plaintiff’s solicitors to prepare a report dated 5 August 2014, which was Exhibit M in the proceedings. He is a consultant director at McIntosh Consulting and Research with disciplines and interests set out in the attached curriculum vitae. In [8.7] of his report Dr McIntosh accepts the comments detailed by Mr Stuart Smith in his report based on assumptions set out. He stated however that the assumptions regarding the illumination threshold assume that the Plaintiff did not have any light or retro reflective material on his clothes. However, in cross examination he conceded that notwithstanding the shoes in the prevailing light conditions, the Plaintiff would have been extremely difficult to impossible to see outside the headlight range (TP260.27-32). He stated that when he wrote the report he was relying on comments about the shoes from the Plaintiff’s mother (TP260.18) whereas he has since had the opportunity to inspect the shoes.
In his second report dated 1 September 2014 (Exhibit 5), Mr Stuart Smith noted at [10.9] p 58 of his report that Dr McIntosh was unable to provide a distance and proposed that research be undertaken with a mannequin and an exemplar vehicle. Mr Stuart Smith pointed out that this research had already been done and formed the basis of his calculations.
Dr McIntosh recounted in his second report dated 16 September 2014 (Exhibit N) using the analysis of visibility distance used by Mr Stuart Smith. He acknowledged this method as an alternative to the light field range and the sight distance with an exemplar vehicle and stated that the analysis demonstrated the influence of assumptions made regarding: -

the position of the Plaintiff laterally with respect to the Ford Laser;
headlight type
headlight conditions;
contrast of material.

On the issue of visibility I prefer to accept the evidence of Mr Stuart Smith as to the likely distance when first observed (subject to the assumptions which underpin it) as it provides a more comprehensive and persuasive basis for determining the issue of visibility in the circumstances. As referred to in [54]-[56] above, Dr McIntosh takes issue with the underlying assumptions but not the basis of the analysis of Mr Stuart Smith. I also accept that the 50th percentile value as the average, meaning the distance headlight shine is worse than 50% of the sample of the headlight for that type. Both the evidence from Mr Stuart Smith and Dr McIntosh appeared to downplay the difference to contrast in the circumstances made by Exhibit B (the Plaintiff’s shoes). The position of the Plaintiff relative to the Defendant is a matter that I will address later in these reasons.

WHAT WAS THE DEFENDANT’S PATH ?

A number of police officers gave evidence relevant to their observations in attending the accident scene. I will deal with the evidence of each witness in turn.

Tegan Mobbs

Constable Mobbs was a police officer who attended the accident scene on the morning in question. Her role was to stop vehicles coming down Homestead Road in the direction from the Masonic hall.
To this end she established a roadblock. She acknowledged that there were cars and maybe taxis coming from the party. In respect of these vehicles, she said she would have directed them off the road on to the grassy verge to the left of the roadway. She further acknowledged track marks going around the area affected by the accident and accepted from memory that this was the area she directed the cars in order to preserve the accident scene. There were track marks depicted in Exhibit E. Constable Mobbs did not know how long before she arrived at the scene that the accident occurred.

Belinda Vassallo

Constable Vassallo arrived at Homestead Road at about 2.00am. Her role was to block traffic coming from the Northern Road.
Nevertheless, Constable Vassallo agreed in chief that she also made observations of the scene and of tyre marks in the area. She observed that the tyre marks led to the off-road related area of sealed bitumen on the gravel and back onto the road. She acknowledged that these marks related to the Ford Laser being, as I understand it, the Defendant’s vehicle. When asked how she did this, she stated: -

“where the vehicle was positioned – like, I was going through the crime scene with my Sergeant because I was like, quite junior at the time and he was showing me what a crash investigation scene looked like”(TP151.37)”

In cross-examination Constable Vassallo acknowledged that it was never her responsibility to identify the tyre marks or skid marks, but rather to preserve the accident scene in order for the Crash Investigation Unit people to come and make an assessment as to the accident and cause of the accident (TP152.5-11). Constable Vassallo was repeatedly questioned about the tyre marks referred to in her evidence-in-chief. These questions from the Defendant’s counsel did not dispute the presence of the marks, but rather their source. They culminated at TP153.32, with this exchange: -

“Q. You can't say whether those tyre marks were caused by the vehicle involved in the accident or whether they were caused by vehicles which may have been ushered around the accident scene by Constable Mobbs, can you?
A. No. I just find it highly unlikely because we section a crime scene off so vehicles don't get into our crime scene, but I can't recall.”

The witness was then shown Exhibit E and referred to Constable Mobbs’ evidence that her concern was to avoid vehicles passing through the accident scene where the markers were, and that vehicles which approached from the east would travel around off the road to the left hand side of the photograph. She was then directed to the marks before being asked at TP154.24: -

“They are the tyre marks which you have been referring to. Is that correct?”

To which Contestable Vassallo replied, “yes”.

I am doubtful that this answer referred to the tyre marks referred to by the witness in her evidence in chief and described in [63] above, as opposed to the tyre marks to which her attention was drawn at TP154.24-25, being those shown of the left hand side of Exhibit E. I cannot, on the basis of her answer, accept the Defendant’s contention at [4.47] that these particular tyre marks were caused by the vehicles directed around the accident scene. In any event the witness’ evidence was that she went through the crime scene with her Sergeant (Sgt Neill) who was at some point at the scene with her.
I will now turn to Sergeant Neill’s evidence

Sergeant Gregory David Neill

On the morning in question, Sergeant Neill arrived at approximately 2.30am to the accident scene. He had the opportunity to inspect the scene and the Defendant’s vehicle, according to his evidence.
Sergeant Neill stated that he observed that, at the edge of the bitumen into the gravel verge, there was a tread-mark of a tyre that led to the rear of the vehicle. He was then shown photograph 85 from Exhibit E. He was then asked to point out to the court where he had observed the tread marks. He stated that “it’s in the bottom left hand corner approaching from the border up to marker A, just off the edge of the bitumen” (TP156.41). He was then asked to mark the location on the photograph, which he did. It became Exhibit H (TP157.5).
Sergeant Neill acknowledged that the marker “A” was not there prior to the Crash Investigation Unit being there and that they arrived some time after he arrived. Then he was asked at TP159.5, during cross-examination, as follows: -

“Q. So you can't say, can you, whether or not the tyre mark which you have identified by a rectangle in exhibit H was caused by the vehicle involved in the accident or whether it was caused by one of the other vehicles which left the road surface and travelled across the gravel?
A. Not definitely, no.”

Then at TP162.6 he maintained: -

“I believed on the night that the tread mark that was in the dust was part of the tread mark from the vehicle.”

Sergeant Neill was asked whether he told that to the investigating officer of the Crash Investigation Unit. He replied that he had a conversation with Sergeant Lehmann who (like Senior Constable West) was a Crash Investigation Unit officer, but who he believed has since left the job.
Sergeant Neill was asked whether he would defer to Snr Constable West who gave evidence that “there was no evidence that the vehicle in question had left the road surface prior to the skid marks being deposited on the road”. He replied stating at TP162.23: -

“I was crash investigation for three years from 94 to 97, so I guess at the time I was using my expertise in the same manner, but if he hasn’t seen them, I did mention them to Sergeant Lehmann”

Sergeant Lehmann was not called to give evidence.
Then at TP162.41, this exchange occurs: -

“Q. I see, but just to recap, you can't say one way or the other whether they were caused by the vehicle in question or whether they were caused by one of the vehicles which went around the scene of the accident before the crash investigation unit arrived at the scene.
A. On the night, from my observations, I believe that they were but I don't know who travelled through there before I arrived.
Q. I think you are agreeing with me. Is that right?
A. Partially.
Q. You weren't there. You can't say.
A. That's right, but I am not going to say they were not caused by that vehicle because I believed on the night they were caused by that vehicle.”

Sergeant Neill was then questioned about the contents of a police statement he prepared, dated 3 May 2011, where it was put to him that he described the tyre tread-mark and the location leading to the near rear side of the Defendant’s vehicle. He stated at TP164.3: -

“No. Like I said, I may have missed out the skid mark part within the statement. Where I have indicated to you that there was a tyre impression in the gravel is where I remember it being, so that statement may have left out the fact that it leads from the gravel to the skid mark to the rear of the Laser.”

Sergeant Neill was also questioned regarding evidence he gave in the Local Court on the 19th of May 2011. He did not recall being called for that but was prompted by questions said to have been asked and answered by him in those proceedings. The questioning appears at TP159.11 to TP161.6 and TP164.18 to TP169.5. It was suggested to Sergent Neill that his evidence in the Local Court was that the tyre mark he saw and referred to was on the gravel surface to the west of C and D pointers on Exhibit H.
At TP164.45 the sequence of questions and answers were as follows: -

“Q. Your evidence today is also different to the evidence you gave under oath back in May 2011 where you agreed that the tyre mark which you were referring to was well past, away from the two skid marks.
A. Yes. As I said, I don't recall that particular question. From the evidence in that photograph, I do recall the tyre mark being in the gravel which is prior to A.
Q. Can I suggest to you that nowhere in your evidence in the Local Court did you tell any questioner or the Court that you observed a tyre mark in the gravel
in an area which you had indicated in exhibit H?
A. I did indicate there was a tyre mark in the gravel. The area may have been a bit mixed up in the Local Court.
Q. It is mixed up in your statement as well.
A. As I said, I'm going off memory there when I did that. I didn't have the hindsight of photos to look at the time.”

At TP165.37, Sergeant Neill was further questioned and responded as follows: -

“Q. But just finally, and I think you're in agreement with me on this, both your statement and your sworn evidence on the last occasion identify a different location for the tyre mark than that which you've identified in evidence this morning?
A. Possibly, from what you were saying between C and D but it wasn't my intention to I think - as I said, as soon as I saw the photograph this morning, it was that point that came back to my memory, that point just before A.”

A photograph “22” shown to the witness during his evidence became Exhibit 8 in the proceedings. Sergeant Neill’s statement and the transcript of his evidence of 19 May 2011 ultimately were tendered as Exhibit 11.

Senior Constable Peter West

Senior Constable West gave evidence that he arrived at the scene at about 4.00am on the 14th of August 2010 in Homestead Road. He was a leading Senior Constable stationed at the Metropolitan Crash Investigation Unit at Huntingwood in 2010.
His statement and a sketch drawn by him together with 96 photographs were tendered as Exhibit G.
The statement in Exhibit G noted at [21] that Sergeant Lehmann took some further particulars from local police and commenced to make written notes of the scene and Laser sedan. This was consistent with Sergeant Neill’s evidence of him speaking with Sergeant Lehmann.
Senior Constable West made various measurements of the accident scene and roadway which did not appear in dispute. Most significantly, the roadway was approximately 6.1 metres wide from the bitumen surface edge-to-edge. Each lane was approximately 3 metres wide. There was a gravel shoulder on the southern side, which was approximately 2.2 metres wide with a grassed area approximately 4.4 metres wide, whilst on the northern side of the gravel was approximately 0.5 metres wide.
Constable West stated that there was no actual street lighting at the time, as the streetlight was not operating.
47 metres to the east of the Defendant’s vehicle, Constable West noted a set a parallel skid tyre marks within the westbound lane. The near side tyre mark he described as commencing partially on the bitumen edge and partially on the gravel shoulder and ran for 10.5 metres at a slight angle from the bitumen edge. The offside tyre mark was approximately 1.5 metres from the southern bitumen and ran fro a distance of approximately 10.8 metres.
Paragraph 17 in Exhibit G noted some other tyre marks off the roadway to the east of the skid marks, however, Mr West concluded that they were not consistent with the collision. Exhibit G does not record that Senior Constable West inspected the gravel to the east of the skid marks. Senior Constable West gave evidence that given the point of impact with the vehicle shown in Photograph 1 of Exhibit G, he regarded the point of impact with the Plaintiff to be about 1 metre on to the road surface. He stated at TP128.25 that he walked the distance from the tyre marks towards pole 17 (shown in the plan on Exhibit G) and agreed in cross-examination to a distance of at least 25 metres to the east of the commencement of the skid marks. He agreed that he examined the gravel section and the grass section to the south of the road in that area, 25 metres to the east of the commencement of the skids marks. Then he was asked at TP129.1: -

“Q. At any point in the course of that distance of 25 or so metres to the east of the skid marks was there any evidence or other indicators that the vehicle involved in the accident had left the road surface so as to cause or leave marks in either the gravel or the grass?
A. I couldn’t see any evidence of any vehicle movement or people passing over that area.”

At TP130.5 this exchange occurs

“Q. But in any event, there was no evidence that you saw looking at photograph 95 where A and B are through to where the second police car is located, of any evidence of the motor vehicle involved in the accident leaving the road surface and travelling on the gravel verge or the grass verge?
A. No. No. I didn’t see that.”

Then at TP132.16 Senior Constable West was then asked if, on close examination of the gravel surface to the east of the position A, there was any indication that the vehicle had been travelling other than on the road surface prior to that point. The reply at TP132.29: -

“No, there was no real evidence of that. No, no visible tyre mark”

Senior Constable West stated that the scene was darker than that depicted in photo 42 of Exhibit G. He agreed that pedestrians needed to be virtually at the intersection with the Northern Road to be detectable. He stated, “where the road rises towards the Northern Road, there may some problem with the darkness of the road obscuring any silhouette or something. I don’t know.”

Analysis of Police Evidence

Senior Constable West gave his evidence before Sergeant Neill. It followed that whilst aspects of his evidence were put to Sergeant Neill, the latter’s evidence was not put to Senior Constable West. Constable Vassallo gave evidence after Senior Constable West, however, the observations of Senior Constable West were not put to her, rather the proposition that there might be an alternative source of the tyre mark before pointer A.
The Defendant’s submissions at [4.55] stated that Sergeant Neill’s evidence as to the location of the off tyre road mark he observed cannot be accepted for four reasons: -

that he could not say definitely that the tyre mark was not left by other vehicles who traversed the scene of the accident. This argument goes to the source of the marks, not their location;

it is said that his examination of the road surface and the gravel was made in conditions of extreme darkness (TP161.35). However at TP161.48 counsel for the Defendant asked: -

“Q: So your observations of any tyre marks…..were made in conditions of extreme darkness?
A: By torchlight yes.”
That response was not challenged by the Defendant.

Sergeant Neill’s police statement contradicted his evidence in this court as to the location of the off road tyre mark;

Sergeant Neill's evidence in the Local Court in May 2011 contradicted his evidence in these proceedings as to the location of off road tyre mark.

As has been noted, Sergeant Neill’s evidence as to his observations were not resiled from when matters said to have been omitted from the Local Court and police statements were put to him. It was his evidence that he told Sergeant Lehmann who was not called but nor was the fact of the conversation challenged. Sergeant Neill was the supervisor at the time, whose observations coincided with those of Constable Vassallo at TP151.30-40. At one point in the cross-examination of Constable Vassallo and Sergeant Neill, a suggestion was put that such tyre marks observed by them were caused by other vehicles and then the alternative suggestion was that the tyre marks noted in Exhibit H by Sergeant Neill were not referred to in other statements. However, I did not ascertain that the defence put directly the proposition that disputed the presence of the tyre marks as indicated; albeit in questioning Sergeant Neill, it was put whether he would defer to Constable West’s expertise or opinions.
I accept the evidence of Sergeant Neill and to the extent it corresponds, the evidence of Constable Vassallo as to the presence of the tyre mark tread leading to Marker A in Exhibit H. Sergeant Neill stated in his evidence from memory he paced an area out between 15 and 20 metres in length (TP159.22). He stated that the area he marked on Exhibit H was flawed because the photo was taken obviously closer than where he paced it out. He stated that he mentioned to Sergeant Lehmann. I do not accept that Constable West’s evidence as to his observations as to what he saw east of the skid marks was accurate and prefer Sergeant Neill’s evidence. Although Sergeant Neill could not definitively state that the tread marks in the gravel were from the Defendant’s vehicle, I am satisfied that they were. I am satisfied that any evidence and statement that he may have given suggesting marks on the gravel leading from the skid marks to the resting position of the Defendants vehicle was mistaken.

Expert evidence

Dr McIntosh used digital photos of photograph 84 and 85 (Exhibits E and H) to demonstrate the presence of the tread line in the gravel shoulder. The trajectory shows the mark coming from the shoulder to the gravel. Dr McIntosh acknowledged that he could not say how far back the mark extended because of disturbance. At TP256.25-35 he reiterated in cross-examination that he felt the mark and the skid mark was almost a straight line, but was unclear how far it extended. In figures 18 – 20 of his report, Exhibit M, Dr McIntosh sought to mark out the continuous tyre marks.
Mr Stuart Smith in his evidence at TP301.10 acknowledged that he also had access to digital photographs and at TP307.45 indicated that he had photograph 85 magnified and changed contrast levels. This occurred at the time that he was writing his second report.
Mr Stuart Smith acknowledged that the Defendant could have had her left wheel just off the edge of the road prior to skidding, but suggested the photographic evidence did not indicate a path on the shoulder significantly beyond the pavement edge (p 4 report September 2014). In cross-examination he considered the vehicle was off the road for some distance beyond the letter A in photograph 85 (Exhibit H)(TP309.7) but stated that what could be a tyre mark on the edge of the road, he could not tell if it was a complete mark.
I accept Dr McIntosh’s conclusions expressed at [93] of Exhibit M that the likely position of vehicular travel, in relation to the edge roadway and prior to the point of impact, was at least the width of the near side’s tyre on the dirt gravel shoulder; that is, that the vehicle was travelling partially off the edge of the roadway prior to the point of impact. The precise distance cannot be clear. Dr McIntosh stated that there was some disturbance (TP 239.20) but on Sergeant Neill’s evidence it was paced out (TP159.24) and I accept on his evidence that it was at least 15 to 20 metres.

Lay witnesses

The evidence of Ms Abbie Newton was that at no stage did the Defendant’s vehicle leave the bitumen surface whilst heading in a westerly direction towards the intersection of the Northern Road. I do not accept that evidence in light of the physical evidence and the evidence of the police witnesses that I have accepted.
The Defendant stated that she was on the left hand side of the road at the time travelling and did not recall leaving the road surface, which I understand to refer to the sealed surface. I also do not accept her recollection was accurate in light of the physical evidence and the evidence of police witnesses I have accepted.
Indeed, in cross-examination, the Defendant was shown photograph 85 of Exhibit H. It was put to her that the skid marks depicted, commencing at A to C, were from her vehicle. She stated, “Yeah I guess”. It was then put to the Defendant by reference to the skid marks near the letter A, that certainly at the time at least part of the Defendant’s vehicle was off the bitumen. She agreed also accepting that she had a better recollection having seen the photographs.
The Defendant could not give any explanation as to why the vehicle would at some point partly go off the roadway. When questioned at TP299.31, she stated as follows: -

“Q. Might I suggest to you that if you now accept, as I think you have, that at some stage part of your vehicle is off the road and if the pedestrian is at or near the edge of the road, your vehicle is really heading straight towards the pedestrian. Do you accept that?
A. I couldn't say.
Q. You couldn't say.
A. No.”

Mr Gallagher’s evidence was that he could not say that moments prior to the impact that at no time did the vehicle leave the surface. He was cross-examined at some length about the position of the Defendant’s vehicle moments before the collision, and in particular whether it was on or off the road the road surface. At TP60.5 this sequence arises: -

“Q. I beg your pardon. Prior to the impact with Daniel at no stage did the vehicle leave the bitumen road?
A. I couldn't say. I was looking down as well, so I couldn't say if it had gone off or on but to my knowledge from when I'd seen, no. I don't think it had gone off the road, no.
Q. Given that there's a gravel verge on the side of the road--
A. Yeah.
Q. --presumably if it went off the road, you would have heard the wheels churning through the gravel. Do you remember hearing that sound at all?
A. I can't remember hearing the sound.
Q. So your best recollection is that at all times the car remained on the bitumen road surface. Is that correct?
A. I assume so. I couldn't make that assumption based on the sound because we were talking as well, so.
Q. No, forget about assumptions.
A. Yeah.
Q. Just talk about your best recollection today.
A. Yeah, from my best recollection, no.”

Then at T63.37, this exchange occurs: -

“Q. Right. So at least at that stage, we know that he is well and truly on the road surface, don’t we?
A. He’d run towards the road and the car had swerved. I don’t know if the car was off the road or on the road, but I remember when I got out of the car I was on the gravel, so I can’t tell you if the car was off the road when it hit him.
Q. A moment ago, you agreed with me that the car, prior to the impact, did not leave the bitumen surface.
A. Yep, I agree.
Q. You’re now changing your evidence about that, or you maintain that?
A. No, I said prior to the impact, and then the car had angled towards the right ‑ towards the left side.
Q. I see, so it pulled over to the left.
A. Yeah, but prior to the impact, from what I recall, it wasn’t, but during the impact it’s a different time.”

I do not accept the Defendant’s contention regarding the unreliability of the Mr Gallagher ([4.14 Defendant’s submissions). Despite being pressed I I found Mr Gallagher generally an impressive witness and I am satisfied that he attempted his best to give an accurate and reliable account of his recollection of the events in question.

WHAT WAS THE DEFENDANT’S SPEED ?

Mr Jamieson relied on the studies by Happer et al in 2000 and also Ubanks in 1996 to form the view that he expressed on p 9 of his report, Exhibit J, as follows: -

“The consensus of this research is that if a normal sedan engages an adult pedestrian and a distinct head strike occurs to the windscreen on the lower part of the windscreen, then a likely speed of that vehicle would be about 40 kilometres per hour, plus or minus 5 km/h. That is such damage is reflective of an impact speed of about 35 – 40 km/h. It is recognised that if (and when) more material comes to light, that preliminary estimate may be revised.”

In cross-examination Mr Jamieson conceded that from a physics point of view the throw distance of the pedestrian provided a more accurate basis for determining impact speed than damage to the windscreen. However, he emphasised that the problem with the former was making an accurate determination of the throw distance as the impact speed is often difficult to ascertain.
At [9.4] of his first report, Mr Stuart Smith criticised the speed from the damage location method used by Mr Jamieson on the grounds that it has a high degree of variation and the other two speed estimation methods being, speed from skid and speed from throw. Mr Stuart Smith stated that in any event, the head strike position was generally consistent with an impact speed of around 40 – 45 kilometres per hour and an approach speed given a minor degree of braking of 40 to 50 kilometres per hour.
The speed from the skid method relied in his calculations on an assumption of post skid speed range of 20 to 30 kilometres per hour; a typical friction coefficient of 0.75 for asphaltic concrete surface; down slope of 1% leading to a conclusion of 50 to 55 kilometres an hour at the start of the skid and impact speed of 45 to 50 kilometres per hour. The speed from throw method assumed a point of impact of 1 to 4 metres after the start of the skidding a throw forward distance of 14 to 17 metres. The estimated impact speed was 45 to 50 kilometres per hour and the pre skid speed of 52 kilometres per hour.
Dr McIntosh deals with the issue at [10.4] and [10.5] of his report. He stated that in isolation it is not possible to determine the likely speed of when the skids marks commenced. Utilising data produced in a study by Mizuno, he noted the cumulative frequency of the lower limb and head injuries by the severity and impact speed. He concluded that there was a discrepancy between the collision speed indicative of severe head injuries and the absence of lower limb injuries. The data indicated on his analysis, impact speed of 45 kilometres, plus or minus 5.
There was some issue in the evidence as to whether the collision with the Defendant’s vehicle involved a head-strike with the windscreen of the Defendant’s vehicle. At TP279.9 the Defendant gave evidence that the Plaintiff’s right shoulder but not his head came into contact with the windscreen of her vehicle. The Plaintiff’s recollection was that his head did hit the windscreen. I prefer to accept the evidence of Dr McIntosh who is an expert in the biomechanics of injury and examined the Plaintiff’s clinical records as referred to in Exhibit M. In his evidence at TP254.20, he supported a head strike and stated that the initial impact with the vehicle would have contributed significantly to the Plaintiff’s brain injury separating the brain from the skull.
Each of the above methods has its shortcomings, however, I accept Dr McIntosh’s analysis and estimates, bearing in mind that the speed from skid method and the speed from throw methods raise a significant number of assumptions which do not have foundation in the evidence beyond possible scenarios. OIn this analysis the impact speed would be 45 kilometres per hour, plus or minus 5 kilometres per hour. This was consistent with the Defendant’s evidence and the conclusion expressed by Mr Stuart Smith. Despite the contention made in the Plaintiff’s submissions at [6] that the Defendant’s speed was excessive there and no evidence to this effect led from either of the experts and the proposition was in fact not put to the Defendant.

PERCEPTION REACTION

A significant part of the evidence rested on the avoidability of the accident based on the actions the driver needed to undertake. Mr Jamieson described this in his report, Exhibit J, as comprising a number of factors. However, for traffic engineering design purposes, the stages can be summarised as: -

“Perception” - being the period consumed by a road user to perceive a situation ahead and decide if the situation constitutes an emergency;
“Reaction” – being the period consumed by a road user to respond to the perceived emergency – also known as” Motor response timing”

Dr Jamieson opines at page 10 of Exhibit J: -

“for almost all road users, the range of times consumed by this process spreads between 0.75, 1 second (in an almost ideal situation) through to about 2.5 seconds for less clear situations. Having quoted this most common time range it should be noted that there have been experimental indices where road users have reacted faster than the time range and also slower”

He then concludes: -

“Given the unlit conditions of an outer urban area, and “expected perception/reaction time would be about 2 seconds. However, as noted above, the actual perception/reaction time based as it would have been on alcohol affectation would almost certainly be longer than this.”

Mr Stuart Smith, in his report of 28 February 2014, Exhibit E, criticised Mr Jamieson's reliance on a perception reaction time discussion presented by Olsen, he relied on what he regarded as a later, more accurate model based on research by Muttart. He concluded that in the circumstances, a time of up to 2.3 seconds would be considered a more acceptable time. At p 31 of his report, Mr Stuart Smith details the facts that determine the expected perception response time and says that an average perception response time would be 1.8 seconds and the 85th percentile time of 2.4 could be expected. He footnotes that the 85th percentile are usually considered to be acceptable times.
Dr McIntosh addresses the issue at [10.10] of his report, Exhibit M at p 58. He states at p 101:-

“In experimental studies on car drivers and other road users, reaction times vary based on the factors being assessed. Triggs et al found the 85th reaction time varied between 1.3 and 3.6 seconds depending on the conditions. If greater mental processing is required based on stimulus, the reaction time would be slower. There is also movement or response time, that is the time taken for the limb to reach the target control. It has been proposed that 1.5 seconds is the reaction/movement (perception reaction time) in these straight forward emergency situations and design value for reaction movement time is 2.5 seconds.”

Although Dr McIntosh was heavily cross-examined about his view, he maintained his position. Mr Jamieson was not cross-examined about his observations on driver perception reaction. On balance, I accept Mr Jamieson’s view that the expected perception reaction time in the circumstances confronting the Defendant would be 2 seconds. Based on a pre skid speed of 50 kilometres per hour, an impact speed of 45 kilometres per hour, it is clear that with a perception reaction time of 2 seconds the Defendant would have travelled 13.8 metres per second. However even on this analysis, bearing in mind the visibility distances as I have found and the length of the skid marks, the Defendant would not have had sufficient time in which to be able to bring her vehicle to a stop without colliding with the Plaintiff.

THE COLLISION DYNAMICS AND THE PLAINTIFF’S MOVEMENTS

In considering how the Plaintiff was sighted and what happened following the sighting, I turn to consider the evidence of those who were able to make observations.

The Plaintiff

The Plaintiff’s evidence was that on the evening in question he did not recall being at the party. He recalled walking on the “gravel or grass” and a car collided with him (TP15.25). He remembered the car coming from the side and “driving and hitting” him from the side “because my head has been replaced now.” He said, “I tried to get out of the way. I tried to get out of the way, but then again I was too slow. I was too – too bulky. I don’t know. I think I weigh too much because I think so, your Honour. I think I was quite a large bloke because I wasn’t trying to be fit. I was just trying to be muscly, very muscly” (15.45).
He stated that he recalled the Defendant’s car coming from his left hand side, he recalled the impact being up on the bonnet of the car “obviously” (TP23.39). He also stated that he recalled being thrown off the car and landing on the road surface (TP23.45-50).
The Plaintiff stated that he did not recall the ambulance or people coming to talk to him on the side of the road. According to his evidence, his last recollection was hitting the road (TP24.35).
The Plaintiff agreed that as he was walking Mr Schneider was a couple of footsteps in front of him, so that he was walking directly behind him. Then he stated at TP25.19 that he was about 10 metres behind Mr Schneider.
Earlier in his evidence the Plaintiff stated however that it was “all my mates” who told him that he was hit by a car (TP19.18). He told the court that included Danny Schneider. Whilst he conceded that his “mates” had told him he was walking on gravel or grass, he stated that he recalled walking on gravel or grass, stating at (TP19.34):-

“My mate didn’t tell me that I was walking on the gravel or grass. I just remember that from my memory”

Then the Plaintiff stated that he was not sure whether it was gravel or grass, but it was on the side of the road (TP19.41).
At TP 20, the Plaintiff was asked a series of questions about his knowledge of the danger of walking on the road with back towards oncoming traffic which he acknowledged as a “death wish”. Then when asked whether at any stage he was walking on the road, the Plaintiff stated, “no, I don’t think so” (TP20.21).
Then at TP20.25-30 these questions and answers appear:-

“Q: You don’t think so because you are not entirely sure. Is that right?
A: No, no, no, I definitely don’t – like I don’t think I was walking on the road, Your Honour.
Q: So you don’t think you were walking on the road?
A: I definitely don’t think – I definitely didn’t walk on the road, Sir.”

In re-examination the Plaintiff stated that one of his mates Officer Schneider, told him the car had come from his left and he remembered doing something to get away from the vehicle (TP27.1-10).
The Plaintiff does not appear to have given a version of events as he recalled them before the court to either of the qualified experts in the case (see Exhibits 5 and M). Despite a lengthy period in hospital between 14 October 2010 and 10 June 2011 (Exhibit A), he stated he could not recall being in hospital “to tell you the truth” (TP18.48). In all of the circumstances I have treated his evidence with caution.

Danny Schneider

Danny Schneider’s evidence was that after the party he and the Plaintiff set out on a path towards Homestead Road. The route taken was marked on Exhibit D with the hall marked MA. He stated that the general area where they were walking was an area marked “A” on Exhibit C. Mr Schneider stated that the Plaintiff ended up behind him. Mr Schneider’s evidence (TP35.35) was that he was walking a few steps to the left of the roadway. At no stage he said, did he go on to the road, and at no stage did he see the Plaintiff on the road. Whilst he could not say exactly where the Plaintiff was, he rejected the suggestion that the Plaintiff was walking on the road surface (TP48.18).
While still talking he remembered hearing a loud bang and saw a white or silver car come past him and stop 20 to 30 metres in front of where he was standing.
In cross-examination, Mr Schneider stated that as he and the Plaintiff were walking, they were side by side at the start and when the incident occurred the Plaintiff was roughly 2 metres behind him. He rejected the Plaintiff’s account of being 10 metres behind and stated that they were walking close enough to have a conversation. He acknowledged however that there was a period of time when the Plaintiff could not be seen behind him and he could not say where the Plaintiff was when he was hit except behind him and to the right and he did not think he was on the roadway.

Lee Gallagher

Lee Gallagher as a passenger in the front seat of the vehicle stated that he was initially looking down. As he looked up he heard a scream from the back. He saw two figures

“on the road. Sorry, not on the road. They were on the side of the road. It’s a country road so it’s not really a road as such. It has got like tar and then on the side gravel.”

He said at the time he was in the passenger seat When he saw the two figures it would have been towards the left of him “so kind of on a bit of an angle”. He stated that they were a bit down, but not too far.
He then said he felt the brakes on his chest and “the car turned, but not turn as in towards the left, but like it spun a bit.” He could not say whether it had left the road. He described the spinning to the left hand side of the road. He then stated that he saw the two figures; one ran off the road towards the grass and the other run towards the middle of the road from the edge.
Describing the location of the two figures on the road being Mr Schneider and the Plaintiff before the accident, he stated at TP54.36: -

“One of them was on the gravel so not on the road it’s kind of what would be on the left of the gutter if it was a normal road, but it was on the gravel and the other one was on the edge of the road. I couldn’t tell you if they were on or off the road, but they were on the edge of the tar and the gravel.”

Then at TP55.8 Mr Gallagher stated: -

“…One was on the edge of the road; one was off further to the left. I’m assuming when they heard the brakes they ran in the opposite direction. One ran towards the middle of the road and one ran towards the other side. Then when the car hit, the guy who was Danny- Daniel sorry he was hit on the drivers side, so he hit the windscreen on the drivers side and then he went over on to the other side of the road.”

Mr Gallagher’s evidence was that Mr Schneider was furthest away from him. He stated that the collision occurred when the Plaintiff hit the drivers side and “it was kind of on an angle.”
He further acknowledged a comment in a statement he gave, which became Exhibit 9 (formerly MFI 4) in paragraph 19 where he stated: -

“The first time I saw Danny and Daniel in front of the car was when Abbie screamed and I looked up and saw them in the car headlights. It was very dark along the road and I don’t think there was any street lighting and no lights from any houses”.

Mr Gallagher could not confirm whether Mr Schneider was walking ahead of the Plaintiff prior to the collision, but stated from his perspective they were side by side. In re-examination Mr Gallagher was asked about his statement that when the brakes were applied it felt like the front of the car had moved to the left of the road. He stated at TP71.30: -

“From my perspective, it felt like – say if I was sitting in the car and was in front and it felt like my angle of the view had moved towards [the left].”

It was put in cross-examination that any movement was to the right. He stated that he could only tell what he recalled and that was what it felt like to him. In further cross-examination, Mr Gallagher stated that the vehicle may have moved back to the right although he did not have a recollection (TP72.13)

Julie Sandstrom

Ms Sandstrom stated that, as she was driving down Homestead Road, she saw a pedestrian she now knows as the Plaintiff on the gravel side of the road but she did not know at the time with certainty, who the person was.
Ms Sandstrom acknowledged that in her police statement (Exhibit 2), dated 18 August 2010, she stated that “I then saw someone standing on the other side of the road on the edge of the bitumen.” She accepted that this referred to the person she described earlier when questioned that she was not able to see where the person was standing relative to the bitumen and the gravel, she stated, “only in terms of distance” (TP96.4). Then at TP96.11 she stated: -

“….that’s it – it is, like, with the distance – that being a narrow road, I think the distance aspect definitely would put him right very over on the – between the gravel and the bitumen.”

Ms Sandstrom was asked to estimate the width of the road and she indicated a distance of approximately 3.5 metres.
She reiterated she told the police her observation was that the pedestrian was standing, but said, “it was just a flash”. She saw him in the outline of her headlights. She conceded that given the darkness, his dark clothing and the position on the road it was extremely difficult to see. Indeed in re-examination she conceded her estimation skills were “absolutely, probably useless.” In the circumstances, I can place no reliance on her evidence on this issue.

Abbie Newton

Abbie Newton’s evidence was as a passenger in the Defendant’s vehicle sitting in the middle rear seat. She stated in chief that her first recollection was seeing the Plaintiff and then shouting, “Stop” or “Look Out” and that is when the Defendant hit him.
She stated from her recollection that the braking occurred after the collision (TP191.9).
At TP191.17, this sequence occurs:

“Q. Abbie, you said that from the best of your recollection that's what happened, that was the sequence?
A. Yes.
Q. In other words, the collision and then the braking?
A. I think I was just more shocked of what happened, I didn't really take too much notice of the brakes.”

The further down at TP191.35, the following sequence occurs:

“Q. I think you just said that you were shocked and you didn't pay much notice to the brakes. Is that right?
A. Yeah, I was more worried about Daniel, to be honest.”

Ms Newton, when pressed, would not dispute a suggestion that the Defendant applied the brakes before the collision. She stated at TP192.24 that when first seen on the road, the Plaintiff was in the middle of the lane in which the Defendant’s car was travelling. She stated at TP193.6 that the Plaintiff was not too far away from the car, but that she did not know the distance in metres.
Ms Newton stated that the headlights shone on the Plaintiff and she noticed that he turned and it would have been over his left shoulder. She stated that the Plaintiff was positioned on the road more towards the Defendant’s side of the road. Ms Newton stated that when she saw the Plaintiff he was walking, heard the car and then turned to his left shoulder.

The Defendant

The Defendant agreed that, whilst braking, at no stage did she try to steer the vehicle and that she did not release the brake until after the car had stopped. Her direction of vision when she first saw the Plaintiff was straight ahead. The Defendant stated that she did not observe two pedestrians on the side of the road and had no recollection of the vehicle spinning a bit, nor spinning to the left hand side of the road. Her evidence was that her perception of the pedestrian and braking happened about the same time (TP299.10-15).
When the Defendant saw the Plaintiff in her headlights she recalled him turning his right shoulder so that the remainder of his body was walking in the same direction as her car. The Defendant stated that the Plaintiff’s right hand shoulder came into contact with the windscreen of the car.

Analysis

Overall I accept that the attention of Mr Gallagher and the Defendant to the presence of the Plainitff was brought about by Ms Newton’s scream. I am satisfied that at the time of sighting the Plaintiff the Defendant was driving partially off the carriageway. I also accept that the Plaintiff and Mr Schneider were walking in the gravel area when first sighted in the Defendant’s vehicle left headlight. To a large extent Mr Gallagher’s evidence I accept as consistent with Mr Schneider’s as to the positioning of the Plaintiff.
I further accept Mr Gallagher’s evidence as to the vehicle braking and then spinning to the left. The precise location where this occurred cannot be determined, however, I am satisfied that it was in the early stages of braking before the vehicle track marks and skid marks above referred to. I do not regard the absence of physical evidence of spinning as determinative. I accept that the physical evidence was subject to disturbance as Dr McIntosh has opined. However the proposition that the Defendant’s vehicle was (at some point) coming from the Plaintiff’s left hand side was put by the Defendant in cross-examination of the Plaintiff and accepted (TP23.25-30) albeit that he later stated that it was something Mr Schneider had told him (TP27.2).
Bearing in mind my earlier findings I am satisfied that the vehicle whilst partially off the roadway subsequently veered towards the right as demonstrated by the track and skid marks on the gravel and roadway. I do not accept the evidence of either Ms Newton or the Defendant, being that the Plaintiff was in the middle of the lane in which the Defendant was driving when first sighted. This is inconsistent with Mr Gallagher and Mr Schneider’s evidence. Mr Schneider was in the moments before the collision having a conversation with the Plaintiff. According to Mr Gallagher it would have been Mr Schneider that moved to the left onto the grass area as the Plaintiff moved to the right. The fact that Mr Schneider would also have moved onto the grass adds weight to the contention of the Defendant’s vehicle being partially driven off the carriageway. In any event the balance of the evidence does not support Ms Newton’s version of braking after the collision and she acknowledged that she was in shock and could have been mistaken.
In my assessment, following the sighting, the Defendant attempted to brake, spun to the left and then veered towards the right before skidding. I accept that the Plaintiff moved to the right. I consider that this was to avoid the vehicle and accounts for the point of impact with the Defendant’s vehicle. Based on the scream in the car from its occupant, the Defendant’s reaction and the location of the Plaintiff as found above, I am satisfied that the Plaintiff and the Defendant’s path, had it remained unaltered, would have resulted in a collision and that the collision with the drivers side bumper bar occurred following movement by the Plaintiff on to the roadway.

WAS THERE ANY LATERAL MOVEMENT BY THE PLAINITFF ?

Mr Stuart Smith did not accept that movement to the right, to any significant degree laterally, was consistent with the Plaintiff’s physical injury. At TP312.6 he stated: -

“In that the impact location as explained in my report was almost certainly about 1 to 1.1 metres from the side of the road, within the road, on the road. The dynamics of the collision show that the pedestrian had virtually no velocity in a lateral direction at the time of impact.”

Then at TP312.39 he states: -

“Well, I don't know anything about the other - I don't accept that he was moving to any significant degree, in any direction laterally, at the time of impact. The evidence, the physical evidence shows that that wasn't the case.”

Mr Stuart Smith was further questioned and it was put to him that his view was based at the time of the impact. Mr Stuart Smith stated at TP312.49 to 313.14:-

“Based on - doing a scientific analysis, anything about what happened before the time of impact is got to be speculation from the scientific point‑of‑view. I can't say whether he was - how he moved, or where he moved, or what he turned, or anything, based on the physical evidence. I'm only able to tell you just as at the time of impact, that he had virtually no velocity in a lateral direction, at the time of impact. That's all I'm able to tell you from the physical evidence. Anything that he did leading up to that point is something that you and the Court will have to determine.”
Q. You're here to assist the Court, as I understand. So if you accept that what I'm putting to you - there is evidence that he's standing either just on or just off the edge of the roadway, and then moves to the right, in order to avoid the collision, that very fact would put him onto the roadway at the time of point of impact that you have described in your report. Is that right?
A. Yeah, that could do, yeah.”

Mr Gallagher could not recall which way the Plaintiff was facing when the impact occurred. He resiled from a position that the Plaintiff was running to the right at an angle stating at TP66.25, “I don’t know. He was just going towards the right.” Then at TP66.29, “he was moving. I don’t know whether he was running or not, because he was definitely moving towards the right.” He said that he did not see the Plaintiff turn around and look at the car, but he could not say if he had his back to the car either (TP66.36). At TP70.27 stated: -
“I think I'd said "running" because that's what I would do. If a car was coming towards me, I'd run but I know he'd moved towards the right. I think I just said "running" because that's what I thought”
I accept that the Plaintiff moved to his right in order to avoid the collision based on the evidence of Mr Gallagher, which I prefer to Ms Newton and the Defendant. I do not understand Mr Stuart Smith to contradict this version, except to suggest that if the Plaintiff was running, it would have meant he stopped whilst dead in line with the car, which was unlikely. I cannot determine on the evidence the precise form the Plaintiff’s movement took however, I accept on the evidence it was made in a relatively short space of time. The distance traversed was from the edge of the gravel shoulder was short. Mr Stuart Smith did not expand on the nature of the evidence that he would have expected to see of lateral movement. In particular, in section 6 of his report (Exhibit 5), he did not claim any inconsistency in physical evidence with such a proposition. In the circumstances, I am satisfied that but for the conduct of the Defendant in driving the vehicle off the road surface, the collision with the Plaintiff would not have occurred. In the circumstances I find the Defendant negligent.

WHAT WAS THE LIKELY POINT OF IMPACT?

As far as the point of impact is concerned Dr McIntosh’s evidence was that, in his view, the most likely area of the point of impact would have been around the line between markers A and B in the police photographs of the roadway stop. Dr McIntosh was shown a copy of the police plan which was Exhibit G and was specifically asked about the location of the recorded debris on the roadway surface to the east of the skid marks. He was asked whether he accepted that it was a strong indicator that the point of impact occurred towards the end of the skid marks. He stated “not particularly, no.” He did concede, however, that the location of the debris was consistent with the point of impact occurring at some point during the course of the skid mark. Dr McIntosh’s evidence relating to the most likely point of impact is to be found in section 10.3 of Exhibit M. At p 61 of Exhibit M, Dr McIntosh reaffirms that his view of the likely point of impact between the Defendant’s vehicle and the Plaintiff was close to the point where the skid marks commenced. I accept this evidence as consistent with the evidence of the lay witnesses, which I have already accepted. I do not accept the evidence of Mr Roger Stuart Smith, as expressed at section 5 of Exhibit 52. In the circumstances, in particular, I do not accept that the location of debris undermines this finding.

WHAT ROLE DID ALCOHOL PLAY ?

As noted earlier, it was not in dispute that both the Plaintiff and the Defendant had consumed alcohol at the party which they had attended and both had been tested by NSW Police and found to have blood alcohol reading indicated.
In chief the Defendant stated that the party finished at the Masonic Hall at around midnight. In further questions in cross-examination she stated it was not her intention to drive home, but rather to get a taxi. However she waited for a taxi for an hour and by that stage, felt okay to drive. She had consumed alcohol whilst at the party, however, she did not recall how much although it included wine and champagne.
The Plaintiff also gave evidence that recalled consuming alcohol. He stated that he consumed “about” a six-pack of Johnny Walker’s and coke. He stated that he recalled being affected by alcohol but “wasn’t blind out of my mind. I could still think” (TP23.7).

Dr Judith Pearl

Dr Judith Pearl from the NSW Police Clinical Forensic Medicine Unit provided a statement which became Exhibit P, in the proceedings. A statement relating to the Defendant’s blood alcohol reading stated as follows: -

“Back calculating the Accused’s BAC at the time of the collision from the breath analysis result, indicates that at the time of the collision the Accused’s blood alcohol concentration would have been not less 0.133 g/100ml with an upper limit of 0.160g/100ml and a most likely level of 0.142 g/100ml.”
“At a blood alcohol concentration of 0.143g/100ml (calculated from the blood) or 1.33g/100ml (calculated from the breath result) and above, all people would be under the influence of alcohol to the extent that driving ability would be very significantly impaired. Driving ability includes cognitive, motor and visual functions such as reaction skills, tracking ability, motor co-ordination perception, judgment and decision making, glare resistance (the ability of the eyes to adapt to altered light conditions, for example on-coming headlights) and peripheral vision, which all would be very significantly impaired.
A young person such as a 20 year old, would have generally less experience with alcohol or less experience with driving than a much older driver and therefore would have generally have more impairment of driving skills at any blood alcohol concentration”

Dr Helen Douncey

Dr Helen Douncey, Consultant Pharmacologist provided a report which was Exhibit 6 in the proceedings. She noted that the Plaintiff’s blood alcohol concentration was 0.136 g% at 2.30am and formed the view that at the time of the accident it was most likely to be 0.149g%. Based on the Plaintiff’s age at the time and the fact that he had been probably been drinking for six to seven hours, she concluded the Plaintiff’s perceptual, cognitive and physical skills were likely to be seriously impaired by alcohol at the time. She goes on to opine: -

“10.2 …. it is likely that because of his intoxication Mr Serrrao did not remain vigilant for traffic as he walked, did not walk into the traffic to give himself a better opportunity to see oncoming cars and did not walk off the road on the verge. If he did check he would have been unable to judge with any accuracy the distance away of any car and the time available to him to make it off the road safely.
His perception/reaction time would have been slow and his capacity to anticipate potential problems, gradually reduced.
It is therefore my opinion that Daniel Serrao’s ability to use the road safely, observe his surroundings with vigilance and make appropriate decisions based on his observations would have been seriously impaired by the alcohol he had consumed and that his alcohol is likely to have been a significant causal factor in this collision.”

I accept the expert evidence of Dr Pearl and Dr Douncey as indicating the likely effects that alcohol had on the Plaintiff and Defendant’s respective actions.

CONTRIBUTORY NEGLIGENCE

Pursuant to s 138 Motor Accidents Compensation Act 1999, s 5R Civil Liability Act2002 applies to determine the question of contributory negligence. Upon a finding of contributory negligence, I am required to reduce damages recoverable by an amount that is just and equitable in the circumstances. In Podrebersek v Australian Iron and Steel Pty Ltd, (1985) 59 ALR 529 the Court stated at [10];-

“The making of an apportionment as between a Plaintiff and a Defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

The Defendant contends that the conduct of the Plaintiff was such that a reasonable person in his position would not have engaged and represents a significant departure from a reasonable person. She further contends that the Plaintiff’s negligence was a “necessary condition of the occurrence of the harm” within the meaning of s 5D of the Civil Liability Act2002 such that it ought to be found to be the cause of the Plaintiff’s injury.
I am satisfied on the evidence that it is appropriate to take account of:

the Plaintiff’s intoxication and the effects this had on him in light of the evidence of Dr Helen Douncey;

the fact that the Plaintiff was wearing dark clothing save for light-coloured footwear as discussed earlier in these reasons albeit that he was walking and not stationary when first observed;

the prevailing light conditions were of extreme darkness;

the Plaintiff was walking on the gravel shoulder adjacent to the road’s surface before moving onto the roadway in response to the approach of the Defendant’s vehicle in the direction of oncoming traffic.

Insofar as the question of the Plaintiff’s dress on the evening in question, my finding is consistent with the principles in Taheer v Associated Australian Motor Insurers Ltd (2010) NSWCA 191.
The Plaintiff contends that the fact that he was walking on the gravel shoulder should not be a matter of contributory negligence (TP351.30). In particular, the Plaintiff commented on the remarks of Mr Jamieson in Exhibit J that the footpath would not have been suitable to walk on in darkness (Exhibit J, P7). When cross-examined on this issue, Mr Jamieson stated:-

“When I looked at it, it had variable width, road shoulder of gravel and sometimes grass, and the footpath area from my inspection had regular patches of long grass. It’s a semi-rural area really. So while I think while it might not be unreasonable for pedestrians to walk on the footpath area during the day, my opinion is that it would not be suitable at night.” (TP179.47)

Mr Jamieson went on to state that the surface of the gravel shoulder was irregular from the pedestrian point of view and not really suitable to walk on.
Mr Jamieson conceded that the accident could have been avoided completely if the Plaintiff had have been walking on the verge on the east-bound lane as approaching cars would be within view (TP181.2). Further he conceded that even if walking on the southern side of the roadway, a reasonable person ought to be aware of the approaching vehicle by reason of the sound/light of the approach and would get off the road and get onto the gravel verge or the grass, at least temporarily (TP181.10).
The matters raised in the sequence of questions and answers referred to appear to engage matters raised of the Plaintiff’s negligence in paragraphs 5(j), (k), (l) of the amended defence of 9 October 1999. These particulars seek to raise issues under ss 238(1), 238(2)(a) and 238(2)(ab) of the Road Rules. For the purposes of these rules “road” includes shoulder, defined in rule 12, but not road-related area, defined in rule 13, pursuant to rule 238(3). In my view, the gravel verge falls within the description of shoulder under rule 12(3)(b) of the Road Rules, being an unsealed part of the road not designated to be used by motor vehicles in travelling along the road.
There was also some evidence from Ms Sandstrom, that as she was walking to the accident site she was conscious that the area in question, being rural, had animals (TP 100.45).
Overall I am satisfied that the Plaintiff, in walking along the gravel verge adjacent to the roadway in the direction of the west-flowing traffic, was a failure to have regard for his own safety that contributed to the accident. The Plaintiff should not have been walking in such close proximity to the roadway and in the same direction as the traffic. In evidence he accepted that to do so would be “a death wish” (TP20.18). I do not accept Mr Jamieson’s observations made some time after the accident detracts from the view.
I am also satisfied that the effects of alcohol affected the Plaintiff’s vigilance and perception reaction to the Defendant’s vehicle coming behind him, although I accept that his movement to the right was brought about in circumstances of an emergency response when he may not have had a full appreciation in darkness of the position of the Defendant’s vehicle, having had only seconds to notice.
Insofar as the Defendant is concerned, she was a relatively inexperienced driver at the time and in view of her age was inexperienced in appreciating the effects of consumption of alcohol. Her decision to drive a motor vehicle in the early hours of the morning while so affected, according to the evidence of Dr Judith Pearl, was a factor which affected her ability to drive and in my view led her vehicle to travel as I have found.
In T and X Company Pty Ltd v Chivas (2014) NSWCA 235, Basten JA (with whom Barrett JA agreed) set out the principles to be followed in the application of s 5R of the Civil Liability Act 2002 and s 138 of the Motor Accidents Compensation Act 1999. I have also had regard to the provisions of s 49 of the Civil Liability Act 2002. Bearing in mind the assessment of the relevant culpability as required, I was satisfied that the weighty factor was the Defendant’s driving in the circumstances that I have described. Under the circumstances I would assess the Plaintiff’s contributory negligence at 40%.

DAMAGES

The Plaintiff was born on the 11th of January 1990 and is currently 25 years of age. He completed his schooling to a secondary level at St Dominic’s College, Kingswood. His evidence was, that in the Higher School Certificate he received an ATAR of 75 (TP26.45). He left school in 2007. His school reports from Year 12 were tendered as Exhibits 12 (2) & (3).
Between 2004 and 2008 the Plaintiff performed casual work at Woolworth’s. He described his position as working in the produce part, where “all the veges are” and making sure the area was stocked. His position at Woolworth’s was considered abandoned after he did not attend rostered shifts on the 15th, 19th and 21st 2008 (Exhibit 12 (7)) and a verbal resignation was given on 25 November 2008 (Exhibit 12 (6)).
It appears that the Plaintiff also worked for one day as a construction labourer with AWX Labour Hire Company (AMFM Constructions). On 25 November 2007, he thereafter performed further work with AWX Labour Hire Company for twenty-two days until the end of 2008, and sixty-nine days in 2009 – 10, as detailed in Exhibit 12 (8).
On 25 February 2008 the Plaintiff commenced a brick laying apprenticeship with Brownies Bricklaying, which ceased after five weeks (Exhibits 12 (13)). He attempted to recommence the apprenticeship with Brownies Bricklaying on the 10th of November 2008 (Exhibit 12 (14)) however this was cancelled on 13 November 2008 after three days. The reason recorded was, “Didn’t turn up” (Exhibit 12 (15)).
Between July and October 2008, the Plaintiff was employed with Winnebago Industries for sixteen weeks at an average earning of $568.00 net per week.
In July 2009 he enrolled in a Certificate 3 Financial Services (Accounts Clerical) at Nepean TAFE, however, he withdrew before completion.
Before the accident the Plaintiff gave evidence that he was earning $200.00 cash (presumably a day rate) and over $1,000.00 per week. However, his evidence was that he intended to become a diamond cutter with his friend, John Viiga, because of the pay. He stated that he had an arrangement to go to Mt Isa in September 2010. He stated that he had, “some plans back in September.” In cross-examination the Plaintiff conceded that the plan to go to Mt Isa was something he had spoken about, but he had not done anything about (TP18.35). He did however claim, that he had told his Sydney employer at the time, a Mr Billy Hood that he was going to leave that job (TP17.4). Whilst the Plaintiff acknowledged his work history involved chopping and changing jobs, he stated that if he had gone to Mt Isa he would have stayed there because of the pay (TP18.9).
Mr Schneider’s evidence was that he recalled having discussions with the Plaintiff as to what he would do after school. He stated that he told him that he did not want to join the police force, but wanted to, “work in the mines, because there was a lot of money up there.” He said that the Plaintiff told him that he was going to go to the mines with John Viiga, a school friend (TP30.15) and seemed, “pretty excited and was serious about it” (TP39.33).
The Plaintiff’s mother Christine Serrao gave evidence that when the Plaintiff was attending TAFE doing Accountancy, he approached her and said that his heart was not in it and that he really wanted to go to work in the mines with John Viiga. She stated that leading up to the accident, the plan was discussed to go in September 2010. She stated that from July 2010 to August 2010 the Plaintiff was doing casual work to try to obtain money to go to Mt Isa. Her evidence was that he was working for Peter Hellies. When her attention was drawn to the Plaintiff’s evidence about working for Billy Hood, she stated that people would ring him and offer him work and off he would go. Her evidence was that he was working an average of five, but sometimes six days per week. She acknowledged that apart from a declared earnings for the 2010 financial year, the Plaintiff received up to $1,000.00 cash in hand for labouring work.
The Plaintiff was cross-examined about a Motor Accident Insurance Form (Exhibit 3) and in particular to an answer to question 48,

“Before the accident had you made any firm arrangements to start a new job, stop work, change your work duties, working hours or duties.”

The response given on Mrs Serrao’s instructions was “NK” meaning “not known.”

I see nothing in the witness’s evidence, which would suggest that this answer was inaccurate. As I understand Mrs Serrao’s evidence, the Plaintiff had a plan to go to Mt Isa with John Viiga in September 2010 and was raising funds to do this. He had made no travel, accommodation or employment arrangements at the time at least to her knowledge.
When Mrs Serrao was asked as to the reason given by the Plaintiff for seeking to change employment, she stated, “there is big money to be had in the mines.’ She stated that she had many discussions with Daniel and a number of her relations had worked in the mines.
The Plaintiff’s father, Terry Serrao gave evidence that the Plaintiff had advised him that he would prefer to be working outdoors. He stated that the Plaintiff was, “all about the gym.” He stated that if the Plaintiff could go to the gym all day, he would. He stated that he always mentioned about his friend John Viiga going to work in the mines. Mr Serrao claims that he encouraged his son to pursue his dream because his grandfather (Mr Serrao’s father) had been a mining engineer. He acknowledged that the Plaintiff at the time of the accident was earning between $300.00 and $400.00 a day, and was saving up so that he could make a trip to the mines. Mr Serrao acknowledged that the Plaintiff at the time of the accident was earning up to $2,000.00 cash in hand, but did not know whether any tax was paid. He acknowledged that he was not aware of any arrangements for transport, accommodation or employment in Mt Isa.
It was put to Mr Serrao that the Plaintiff was enjoying his work as a labourer at the time of the accident. He stated that he did not know what job the Plaintiff was doing but agreed that he was in the position to earn a lot of money. In Exhibit 12 (2), being Social Work Discharge Notes from Western Sydney Local Area Health Network, a recording is made relevant to the Plaintiff: -

“Finally Mr Serrao was working as contractor for a landscaping business just prior to his injuries. The landscaping role is work Mr Serrao’s family report he is excelled at and enjoyed very much.”

John Viiga himself gave evidence on Day 4 of the trial. He stated that he and the Plaintiff were close friends at school, leaving at the same time in 2007. He stated that he had spoke at school about going up to the mines so he could make, “easy quick money.”
Mr Viiga stated that he had spoken to the Plaintiff about going up to Mt Isa together, but it was hard trying to get a job not being there, and having commitments to his wife and children. Ultimately, he and the Plaintiff made a plan to just head there and find work. However, prior to the accident he stated that no date or time was mentioned (TP215.37).
Ultimately Mr Viiga stated that he went to Mt Isa in September 2000. He did some research about what he needed to do and drove up with his family. He arranged to stay with an acquaintance of his wife’s friend for a period in Mt Isa. His wife and children flew back but subsequently, have settled with him in Mt Isa.
Mr Viiga indicated that it did not take long to find a job. He approached agencies and was hired by ‘Skilled’ as a diamond driller offsider starting at $90,000.00 (per annum gross presumably). After less than a year he progressed to become an employee of ‘Glencore Mines’ and became a trainee driller and then a driller. His current earnings were stated to be $150,000.00 gross per annum with 12% superannuation, working four days on and off. He also works overtime doing two extra shifts with take home pay of $1,000.00 extra net per week.
In cross-examination, Mr Viiga stated that a couple of his friends had moved to Mt Isa with their partners and found jobs. He conceded that some people who go to Mt Isa, like him, stay, and some return. In his case, his family lived with him, his wife was happy and he was having a third child. However, he recognised that it was not the most attractive town for a single man and acknowledged that people who stay in the town are those who are in a family, or relationship.
It was clear from Mr Viiga’s evidence that he was relatively unskilled and obtained qualifications/certificates in Mt Isa. However, unlike the Plaintiff, he did have a driver’s licence, which he stated was necessary (TP222.45). This aside, he stated at TP222.41: -

“You just go in not knowing anything. They will teach you there. They give you tickets there, and then on the spot, you do your time.”

Whilst he acknowledged that not every body gets jobs, he stated that, “it all happens with luck, pretty much” (TP222.18).
Mr Branco Arsenic also gave evidence. He was a shift supervisor at Glencore Mines, Mt Isa and had been in the mines for thirty-nine years. His evidence was that there was always availability of jobs in different departments in the town. He indicated at the time, that the number of fly-in and fly-outs of Mt Isa was being cut back and proposals were being directed towards employing a more local workforce (TP206.5).
His evidence was that people fly straight to Mt Isa and get jobs, particularly if you know people and you have friends. He stated that the things an employer looks for in taking on a person are past work history and their reliability. He said it is a town built on single people. A lot of single people have come through the town stayed there and made relationships. He acknowledged that a lot of people come for work and do leave but also stated that a lot of people do stay. He stated that it depends on the person, but he knows people that have met partners there and stayed. According to his evidence a lot of the work was manual and you would probably select someone with more of a stout build, than someone with a frail build. One third of the workers work underground and they are asked from time to time, to do overtime. He stated that a lot of “outdoorsy people” who work for him are sick of that style of life and want to work to get a better income through mining.
Mr Arsenic confirmed that he started off as an apprentice and had progressed through the ranks. He stated that his salary was $168,000.00 at the moment. He confirmed Mr Viiga was employed as a driller, having progressed from trainee driller, and as such, did not require qualifications as he was trained for those positions.
Mr Viiga’s payslip was tendered as Exhibit Q in the proceeding. It confirmed net week weekly pay including overtime of $2,644.55 per week, plus 12% superannuation on gross earnings.
In the Plaintiff’s case, an expert report was prepared by Craig Martin, which was Exhibit K in the proceedings. Mr Martin is a rehabilitation counsellor who includes vocational assessments for rehabilitation purposes as an area of expertise.
Mr Martin’s report details that, but for the injury, Mr Serrao would have reasonably expected to earn $120,000.00 per annum, probably $140,000.00 per annum and possibly $150,000.00 per annum, working as a driller in Queensland. Alternatively, he states that he could have earned similar rates of pay working as a miner. Mr Martin’s assessment was that employment opportunities in mining continue to exist. He stated that turnover in the industry was high, but that this was more related to rapid growth in employment, with new workers coming into the industry and more existing workers changing jobs as competition for labour encourages more intra-industry job moves. His report notes similar participation rates for older age miners up to sixty years of age and then a gradual reduction until sixty-five years of age.

In cross-examination, Mr Martin conceded that it is impossible to predict what might have happened, or might have been the Plaintiff’s occupational potential, had the accident not occurred. He stated that, given the Plaintiff’s age, he would have had the opportunity to progress and develop a career and income increases as his career developed. He acknowledged that based on records contained in the Defendant’s experts report on page 6 of Exhibit 4, the Plaintiff chopped and changed employment from 2007 –2010. He acknowledged that comparisons with Jon Viiga required comparisons between their lives in terms of responsibilities and other such matters. He disagreed however, with the suggestion that Mt Isa was hardly the best place to live in terms of lifestyle, stating that with Mt Isa and other mining companies, the trend is towards encouraging families and also young people to stay. He stated that in Queensland, employment prospects may be different to the national average by virtue of jobs that are available. This was a reference to Appendix C of Exhibit K.
In the Defendant’s case, evidence was called from Dr James Athanasou, a psychologist and consultant in vocational guidance.
Mr Athanasou opined that the Plaintiff had a record of casual intermittent employment prior to the accident and did not have a clearly defined career path. Whilst he acknowledged that the Plaintiff might have pursued the option of seeking employment in the mining industry, he indicated that the comparison with Mr Viiga was fraught with difficulties. In particular, Mr Viiga's employment since leaving school was different, as were the circumstances of his occupational adjustment in Queensland. Dr Athanasou also cites additional uncertainties that apply to mining as an occupation, with an uncertain labour market and reduced demand; there could be no guarantees as to longevity in the occupation. He cites a number of potential occupations the Plaintiff could have been employed in and lists these on page 9 of his report, which is Exhibit 4 in the proceedings.
In cross-examination Dr Athanasou maintained his views. He acknowledged the opportunities to earn more in Mt Isa than in Sydney for an untrained person. However, he stated that twenty percent of people in mining have been employed in the mining industry for less than 12 months and two thirds for more than ten years. He acknowledged that the Plaintiff may have gone to Mt Isa, but whether he was successful or not, is not for him to decide. In his figures, he referred to a median of the driller miner and shot fire of $2017.30 (presumably gross per week).

Analysis

In embarking upon the assessment of damages for future economic loss, I am required to apply the provisions of s 126 of the Motor Accidents Compensation Act 1999 (herein after referred to the as 1999 Act). The step is that required by s 126(1) which provides: -

“A court cannot make an award for damages for future A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.”

The Plaintiff’s contention is that it was his intention to seek work in the mines in Mt Isa and had made plans with his school friend, John Viiga, to this effect. Mr Viiga commenced working at Mt Isa in Queensland through an agency known as ‘Skilled’. Although there are a number of jobs that were vacant for him, he chose to become a diamond cutter offsider as he thought there was an opportunity there to move up in the industry. He has since progressed and become a driller. The Plaintiff’s contention is that Mr Viiga is a true comparable whose earnings reflect what the Plaintiff would have earned, but for the accident.
The Defendant contends otherwise, citing the Plaintiff’s employment history, the level of declared earnings, the absence of any arrangements to change his employment and the distinguishing features of Mr Viiga. To this end the Defendant relies on the opinion of Professor Athanasou.
In Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145, Hodgson JA stated at [11] relevant to provisions analogous to s 126(1) of the 1999 Act contained in s 13(1) of the Civil Liability Act 2002:-

“…. Most likely here does not mean more likely than not, but more likely than any other possible scenario;”

In the instant case, the Defendant’s contentions about the Plaintiff “chopping and changing jobs” has to be viewed in the context of evidence from Mr Martin that at the Plaintiff’s age most people are still yet to develop a career and are finding out about the world of work.
It is true that the Plaintiff’s declared earnings in the 2010 financial year were only $901.00. Yet there was evidence from the Plaintiff and his parents that he was earning between $200 and $400.00 for up to five days and sometime six per week doing labouring work, cash in hand. The evidence of such earnings through employers was not disclosed. Nevertheless, the Defendant in cross-examination did seek to suggest a lack of plausibility in the Plaintiff taking up a mining career in Mt Isa when he was able to earn such sums locally. At TP383.30, the counsel for the Defendant stated: -

“Your Honour, I accept that I’m to some extent stuck with the evidence, that is that on occasions at least he was earning $200.00 net per day, which is the Plaintiff’s evidence, in hand.”

Although it was put to Defence counsel that Mr Terry Serrao’s evidence was that the Plaintiff was earning up to $2,000.00 per week, cash in hand, he did not embrace this figure.
I accept that the Plaintiff was earning significant levels of income in excess of those which were declared in his tax returns, although the full extent, I cannot determine. Nevertheless the Defendant’s admissions seem to embrace that the Plaintiff’s earning capacity exceeded his declared earnings.
In my opinion, it is likely that but for the accident, the Plaintiff would have gone to Mt Isa to obtain work in the mines. His work history indicated that he preferred physical jobs. It is clear to me that, like Viiga, he was anxious to obtain fast, high earnings. Apprenticeships and study were less attractive to him than the immediate benefits that high yielding labouring type work could deliver, which involved higher remuneration and relatively little study. In my assessment he had reached a point where he had agreed with Mr Viiga to pursue the Mt Isa option. Although this was an issue of discussion with Mr Viiga from school days, I do not believe that the Plaintiff would have pursued the option alone. Mr Viiga himself was on a football contract and had pursued employment with Freedom Furniture. His difficulties were the fact that he had family, including children. He went to Mt Isa however, without employment or any transport arrangements beyond driving. He stayed with an acquaintance of his wife’s friend. It is clear to me on his evidence that others that he knew of had followed him. In my view the Plaintiff would have likely gone in the same direction. He has a family history in mining, which was disclosed by Mrs Serrao at TP137.15 and by Mr Serrao at TP146.10. He had discussed the question of going to Mt Isa, not only with his parents, but also with Mr Viiga and Mr Schneider. Those discussions as recounted in the evidence demonstrated enthusiasm.
As I understood the evidence from both Mr and Mrs Serrao, the Plaintiff had made plans, but no arrangements. Although the Plaintiff claims that he had told people he was intending to travel in September of 2010, the evidence from Mr Viiga is that such a date had not been set. I do not regard this as being of much consequence as I do not consider that the Plaintiff would have gone until such time as Mr Viiga was prepared to do so and Mr Viigas’ evidence supported the concept of going to Mt Isa first before obtaining a job. The question of whether he told his existing employers, does not in my view assume much significance, bearing in mind the fact that, as I understand, his employment was largely casual with a combination of labour hire companies and individuals.
So far as his employment in Mt Isa is concerned, I am satisfied on the evidence that Mr Viiga, Mr Arsenic and also Mr Martin, that the Plaintiff had reasonably good prospects available to him finding a job and a potential career path. The evidence of Mr Martin and Mr Arsenic, in particular, supports not only the availability of local employment in Mt Isa, but also attempts by employers to attract workers who can live locally in the town.
I am not satisfied however, that the career path that the Plaintiff might have had, had he followed Mr Viiga would be likely to be identical. Mr Viiga had researched his position and training before he went and had not discussed this with the Plaintiff. He had a driver’s licence before he went up, and whilst I do not regard this as being a long-term obstacle to the Plaintiff to use Mr Viiga’s own words, “not everyone gets a job, but you know it all happens with luck”. It is one thing to say that the Plaintiff’s likely employment would be in mining, it would be another to say that his personality, adaptation, commitment and interests were identical to those of Mr Viiga and further that he would have been presented with the same opportunities. The evidence does not enable me to form such a view within the terms of s 126(1) of the 1999 Act.
Considering the figures based on the competing experts reports, I have noted that Appendix C to Mr Martin’s report shows a high level of consistency in income on average between age groups. Whilst the position of Mr Viiga regarding overtime is noted, this would have been incorporated in the average figures. In all, taking into account the figures Mr Martin lists which are average figures, I propose to assess past economic loss on a net basis, based on a figure in 2014 – 2015 of $1,500 net, being the average of the figures according to the Job Markets Australia 2013 – 2014 reports from miner and driller, adjusted by 3%. In assessing past economic loss, I have used the latest figure of $1,500.00 (net) and adjusted it downwards by 3.7% noting that that this is the average increase over the past ten years noted by Mr Martin. Accordingly on these figures, I assess past economic loss as follows:

04.10.2010 – 01.07.2010   38 weeks @ $1,242.00   $47,310.00
01.07.2011 – 30.06.2012   52 weeks @ $1,290.00   $67,080.00
01.07.2012 – 30.06.2013   52 weeks @ $1,391.00   $72,332.00
01.07.2013 – 30.06.2014   52 weeks @ $1,445.00   $75,140.00
01.07.2014 – 06.02.2016   27 weeks @ $1,500.00   $40,500.00
Total   $302, 362.00

Evidence given by Mr Arsenic and Mr Viiga was that superannuation was paid at 12% for Mr Viiga. Mr Arsenic’s evidence was that he was paid 13% superannuation. There is no evidence that supports that these amounts were common or indeed the average in mining. I am not aware as to what rates are paid by other employers and for other positions. In the circumstances, I consider it reasonable to allow superannuation on net earnings past at 11%, being an amount of $33,260.00 (rounded off).
In respect of future economic loss, I accept that the Plaintiff may not have realised this income over the full extent of his working life, the question posed by s 126(2) is what adjustments should be made. Dr Anathasou’s evidence was that 20% of persons in the mining industries last less than twelve months, and two thirds have been in mining for more than ten years. Mr Martin also acknowledged that from age fifty-five there was disparity in terms of age in the mining industry based on age, but it becomes more significant beyond fifty-nine years of age. I propose to increase the vicissitudes for the future only to account for this factor, bearing in mind the loss I have found. I would propose a figure of 20%.
Accordingly, based on a figure of $1,500.00 for the future using the 5% tables for forty two years, the Plaintiff on a multiplier of 931.6 would have been entitled to $1,397.400; less 20% for vicissitudes calculates future economic loss of $1, 117,920.

CONCLUSION AND ORDERS

Accordingly, in summary, the damages I propose are as follows:

Non Economic Loss (agreed) $ 492,000.00
Past Economic Loss $ 302,362.00
Past Superannuation $ 33,260.00
Future Economic Loss $1,117,920.00
Future Loss of Superannuation $ 122,971.20
Total $2,068,513.00

To this, a deduction has to be made for contributory negligence of 40%. Making an amount of $1,241, 107.80.
The orders I propose are:

Subject to order 2, that there be a verdict and judgment for the Plaintiff in the sum $1,241,107.80;

Pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 the question of damages for funds management will be determined separately.

Pursuant to s 77 (2) of the Civil Procedure Act 2005 the judgment amount is to be paid into Court subject to any further direction under s 77(4) of said Act.

I will hear the parties as to funds management, costs and further directions.

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Decision last updated: 09 February 2015

Medium Neutral Citation:	Serrao v Cornelius [2015] NSWDC 4
Hearing dates:	20, 21, 22, 23, 24, 27, 28 October 2014
Decision date:	06 February 2015
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Judgment and verdict for the Plaintiff. The Defendant found to be negligent, the amount of compensation for which is to be reduced in proportion to the contributory negligence of the Plaintiff.
Catchwords:	PERSONAL INJURY – motor vehicle accident – negligence – contributory negligence – driving under the influence – damages
Legislation Cited:	Civil Liability Act 2002, ss 5D, 5R, 13 and 49 Civil Procedure Act 2005, s 77 Evidence Act, s 177 Motor Accidents Compensation Act 1999, Division 1 Part 1.2, ss 5F, 7B, 7F, 126 and 138 Road Rules 2014, rr 12 and 238 Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited:	Axiak v Ingram [2012] NSW CA 311 Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 T and X Company Pty Ltd v Chivas (2014) NSWCA 235 Taheer v Associated Australian Motor Insurers Ltd (2010) NSWCA 191
Category:	Principal judgment
Parties:	Mr Daniel Serrao (Plaintiff) Ms Claire Cornelius (Defendant)
Representation:	Counsel: Mr T Boyd (Plaintiff) Mr D Wilson (Defendant) Solicitors: Herbert Weller (Plaintiff) Sparke Helmore Lawyers (Defendant)
File Number(s):	2013/00215744