Seselja v Reardon
[2020] ACTSC 167
•26 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Seselja v Reardon |
Citation: | [2020] ACTSC 167 |
Hearing Dates: | 28 April 2020 – 1 May 2020; 14 May 2020 |
DecisionDate: | 26 June 2020 |
Before: | Crowe AJ |
Decision: | See [353] |
Catchwords: | TORTS – MOTOR VEHICLE ACCIDENT – Whether the first defendant breached his duty of care – whether the first defendant was acting in the ‘agony of the moment’ – where a breach of duty was found DAMAGES – PERSONAL INJURY – Compensation – where the plaintiff suffered an injury to her right hip due to the particular circumstances of the accident |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) – ss 42, 43, 44, 100, pt 4.2 Court Procedure Rules 2006 (ACT) – r 1619 |
Cases Cited: | Abdallah v Newton (1998) 28 MVR 364 Skripal v The State of Western Australia (Unreported, Western Australian Court of Appeal, Murray AJA, Franklyn J and Steytler P, 19 May 1995) |
Parties: | Sophie Seselja (Plaintiff) Linden Reardon (First Defendant) Insurance Australia Limited Trading as NRMA Insurance (ACN: 000 016 722) (Second Defendant) |
Representation: | Counsel A Muller (Plaintiff) B Wilson (First and Second Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth Lawyers (First and Second Defendants) | |
File Number: | SC 244 of 2019 |
Crowe AJ:
Introduction
This case concerns the consequences of criminal conduct for the direct and indirect victims. As will be seen from what follows, it also exemplifies the difficulties in reconciling differences in human perception and the frailties of memory.
Because many of the lay witnesses in this matter have the same surnames I will, without meaning any disrespect, refer to them by their given names.
At around 8:30pm on the evening of Monday 13 July 2015, Linden Reardon (the first defendant), who was then 17 years of age, was driving his mother’s Mitsubishi Lancer (the Lancer) in an easterly direction on Isabella Drive, Monash in the ACT. A friend of the first defendant, Kyle Mundy (then aged 16) was seated in the front passenger seat and in the rear were the first defendant’s brother Luke (then aged 14) and sister Georgia (then aged 16). The group had been to watch a movie at the Tuggeranong Shopping Centre together with the first defendant’s older brother James, his partner Rebecca Coulson and James’ 5-year-old daughter Ella. James, Rebecca and Ella were travelling ahead of the Lancer in a Toyota Kluger (the Kluger).
At a point between the roundabout intersections of Isabella Drive and Drakeford Drive (the Drakeford Drive roundabout), and Isabella Drive and Clive Steele Avenue (the Clive Steele Avenue roundabout) a black Commodore (the Commodore), which had been travelling between the Lancer and the Kluger, came to an abrupt stop in the eastern laneway of Isabella Drive. The first defendant brought the Lancer to a halt just behind the Commodore. The plaintiff, who was driving her Suzuki Swift (the Suzuki) in an easterly direction some distance behind the Lancer, stopped behind it.
When the Commodore stopped, the driver and front seat passenger alighted from the vehicle and approached the Lancer. The driver of the Commodore tried to open the first defendant’s door. The driver threatened the first defendant with a metal object which he was carrying in the right sleeve of the top he was wearing. At the same time, the Commodore passenger managed to open Kyle’s door and grab him. The passenger slapped Kyle around the head. The passenger was attempting to pull Kyle out of the Lancer.
The first defendant put the Lancer into reverse in an attempt to escape the Commodore driver and passenger. The first defendant reversed the Lancer and in so doing hit the plaintiff’s Suzuki. At that point the driver and passenger of the Commodore ran back to their vehicle. They drove away at some speed, with their lights off.
Both the Commodore driver and passenger were subsequently identified and charged with common assault. The driver was convicted and fined $400. The passenger was found guilty; however, a conviction was not recorded. He was required to enter an undertaking to be of good behaviour for two years.
The plaintiff claims that she suffered personal injury as a consequence of the collision between the Lancer and the Suzuki. The plaintiff also claims that the collision occurred as a result of the negligence of the first defendant. The particulars of negligence are pleaded in the following terms:
(1)Failing to keep any, or any proper, lookout;
(2)Failing to maintain a safe distance between (the Lancer) and (the Suzuki);
(3)Failing to keep (the Lancer) under any, or any proper, control;
(4)Failing to stop in response to traffic conditions;
(5)Reversing (the Lancer) when it was unsafe to do so;
(6)Failing to provide any or any adequate opportunity for the plaintiff to avoid a collision with (the Lancer);
(7)Failing to steer (the Lancer) so as to avoid the collision; and
(8)Driving at a speed which was excessive in all of the circumstances.
The first defendant (and his Compulsory Third Party insurer, the second defendant) deny negligence. Their case is that the first defendant reacted reasonably in what was an emergency situation. Although the collision occurred, it was not caused by any breach of the first defendant’s duty of care. Rather it was the product of his reaction to the actions of the driver and passenger of the Commodore. It was a reaction which occurred in what some authorities have referred to as “the agony of the moment”.
The defendants also contend that the magnitude of the impact between the two vehicles was such that it was unlikely that the plaintiff suffered any injury of significance.
The Factual Evidence
The plaintiff – examination-in-chief
The plaintiff was born in 1986. She was 29 years old at the date of the accident, and 33 years old at the time of the hearing. The plaintiff had grown up in Canberra, although when she was about 15 her family had moved to Queensland and she completed her schooling there. After a gap year, the plaintiff completed a Bachelor of Public and Corporate Affairs at the Sunshine Coast University in 2009. She then returned to Canberra. After working as a communications consultant with a private firm, the plaintiff joined the Australian Public Service. On 4 April 2011, the plaintiff was appointed to an APS5 position as a “Public Affairs Officer” with the then Department of Human Services and Health.
The plaintiff gave evidence that she had suffered a couple of medical issues before the accident. In April 2013, she had attended her GP for cramping in the right leg. The GP related this to facet joint problems in the lower back and referred the plaintiff for physiotherapy. The plaintiff said that she had suffered symptoms for a couple of weeks.
The second episode occurred in July 2014. The plaintiff said that she had hurt her back using a leg press machine at the gym. She had attended her GP again. The symptoms lasted about a week.
Apart from those issues, the plaintiff said that she was healthy and well before the accident. She participated in social netball, tennis and walked around the lake. She also participated in social baseball and horse riding. She had no physical difficulties in carrying out those activities.
From 2011, the plaintiff was living with her sister Rachael and Rachael’s partner Cain in Jerrabomberra in New South Wales. Prior to the accident they shared the domestic tasks equally.
The plaintiff said that on the evening of 13 July 2015 she was driving home from work. She worked at Tuggeranong and was proceeding in an easterly direction on Isabella Drive towards Jerrabomberra. The plaintiff said that it was dark, but that she could recall the roadway as being well lit. The weather was dry. She first observed the Lancer and the Commodore as she entered the Drakeford Drive roundabout. Those vehicles were about 100 metres ahead. The plaintiff described the vehicles as being in the roundabout and travelling quite fast. She said that they had a slight “lean” as they went around the bend. They were next to each other and, as they exited the roundabout where the two lanes merged into one, neither appeared to be giving way. She saw the Lancer’s brake lights come on and the Commodore then pulled in front of it.
As the two vehicles proceeded along Isabella Drive, the plaintiff said that the Lancer was close behind the Commodore. She described the Lancer’s driving as “tailgating”. She said that the Commodore’s brake lights came on causing both vehicles to slow down, then the Commodore sped up, as did the Lancer. This occurred twice. The plaintiff then saw the two vehicles stop on the roadway. She marked on an aerial Google Maps photograph of the area the point at which the two vehicles stopped (this marked photograph became Exhibit P4). The plaintiff marked a point slightly halfway between the Drakeford Drive and Clive Steele Avenue roundabouts, on or close to a bicycle path overpass.
The plaintiff described how she approached the stopped vehicles in the following terms:
As I had witnessed the stop-starting that was happening earlier, I kept my distance and I approached with caution, and I eventually caught up to them as they were stopped and pulled in behind them, keeping a safe distance because in my rear-view mirror I could see lights coming up behind me. I came to a stop and put my hazard lights on.
The plaintiff said that she stopped approximately 9 to 10 metres behind the Lancer. The plaintiff based her estimate on measurements she had taken (some time after the accident) when she had returned to the accident scene and placed a piece of cardboard at the point where the Lancer had stopped by reference to where she had stopped the Suzuki and measured the distance with a tape measure. The Suzuki and the cardboard were on the verge rather than the roadway itself. A series of photographs of that re-enactment became Exhibit P5.
After the plaintiff stopped, she noticed two or three other vehicles pulling up behind her, although one of them then moved onto the verge to her left and parked next to the Suzuki, half on the verge and half on the roadway.
The plaintiff saw that there were four people in the Lancer. She saw the two rear seat passengers turn and look at her when she put her hazard lights on. She also saw the first defendant turn and “look back”. Shortly after that, the plaintiff saw the Commodore passenger get out of the vehicle and walk towards the passenger door of the Lancer. It was at that point that the plaintiff glanced in her rear-view mirror to see the car pulling up to the left of the Suzuki. When she looked forward again, she saw that the passenger door of the Lancer had been opened and the Commodore passenger and Kyle were engaged in a scuffle.
At that time the plaintiff saw the Commodore driver alight and walk towards the driver’s door of the Lancer. The plaintiff said that he was speaking but that she could not hear what he was saying. She did not see anything in his hands.
According to the plaintiff, someone from the vehicle which had pulled up to her left then tried to intervene in the scuffle between the Commodore passenger and Kyle. The Commodore driver started to walk back towards his vehicle.
The plaintiff then observed the reversing lights of the Lancer come on. The Lancer started to creep back, and then shot back quite fast for a short distance. The plaintiff heard horns sounding from behind and turned to look back. When she looked forward the Lancer was approaching her vehicle and the Commodore driver had run back and grabbed the driver’s door of the Lancer. The plaintiff said that the driver of the Commodore was yelling, although she could not make out what he was saying. The plaintiff said that she saw Georgia look back and start hitting the driver’s seat of the Lancer. However, the Lancer collided with the front of the Suzuki.
The plaintiff described the moment of impact as follows:
… I braced, had my hands on the steering wheel, foot on the brake and foot in the clutch, and when the vehicle hit my car I felt quite a force and was pushed back.
The plaintiff said that when the Lancer had started shooting back, the open passenger’s door had knocked the Commodore passenger and the intervener jumped out of the way. The plaintiff had kept her headlights and the hazard lights on during the whole episode.
The plaintiff said that she was scared and shocked immediately after the collision. The first defendant got out of the Lancer and walked back towards her. He was staring at the plaintiff. She wound her window down and suggested that they move the cars off the road. Both the Lancer and the Suzuki were moved onto the nature strip to the left of the roadway.
The plaintiff sat in the Suzuki for a few minutes to compose herself. During that time she rang triple zero. The operator advised her that those involved in the accident should attend the Police Station. The plaintiff then got out of her car and approached a group of people which included those who had been in the Lancer. The plaintiff said that she overheard some conversation about the Commodore having left the scene and the possibility of following it. The plaintiff introduced herself, advised them that she had spoken to police and suggested that they go to the Police Station. The plaintiff said that at this point a woman, who the plaintiff described as an “older lady”, told her to “fuck off”.
The plaintiff described herself as taken aback by the comment. She returned to her car and burst into tears. The plaintiff called Cain and asked if he and Rachael would come to the scene. She also called triple zero again. She was again told to go to the Police Station.
I interpolate that a disc containing an audio recording of a call made by the plaintiff to the triple zero number was tendered into evidence (Exhibit P11). A transcript of the call was made by the plaintiff’s solicitors. It is at 20-21 of Exhibit P7. The transcript appears to be accurate. In the course of that call (which occurred at 8:41pm on the evening of the accident), the plaintiff is recorded as saying:
... I was one of the cars involved but I guess all their friends are turning up now and it’s just getting really scary … and none of them will come down to the station with me. They are getting all aggressive.
After making this call, the plaintiff mustered up her courage and approached the group for a second time. The plaintiff said that the people in the group were “laughing and reminiscing about what had just happened”. She gave some examples of what she heard leading to that conclusion. She asked the driver of the Lancer to identify himself. This did not occur and so she went and started to take photographs of the Lancer’s number plate. At this point the first defendant came over and introduced himself. He and the plaintiff exchanged details. Kyle also joined the conversation. He provided the number plate of the Commodore to the plaintiff. In that conversation, the plaintiff was told that there had been an earlier incident between those in the Commodore and the group who had been to the movie at the Tuggeranong Shopping Centre and that words had been exchanged.
The plaintiff described the first defendant as calm and having been laughing and joking around earlier.
After some time, Cain and Rachel arrived. They accompanied the plaintiff to the Tuggeranong Police Station where the plaintiff reported the accident. While she was there the first defendant and his group arrived. This included the woman who had told the plaintiff to “fuck off”.
By the time the plaintiff got home she started to get a stiff neck and shoulders and had a slight headache. The plaintiff said that she did not sleep well and woke up the next morning stiff and sore all over, and with a bad headache. She noticed pain in her lower back and right groin region. The plaintiff attended her GP that day. She was put off work for a couple of days. The plaintiff tried to return to work later that week, however she was unable to continue. She went back to the GP and subsequently had two weeks off work. She was referred for physiotherapy and hydrotherapy. She was also prescribed medication for the pain.
The plaintiff said that she was given lighter duties (in the sense of avoiding tight deadlines) after she returned to work. In August 2015, she was referred to Dr Howse (sports physician). Dr Howse referred the plaintiff for an injection in the neck and over the next few months he also performed injections into the plaintiff’s right shoulder.
In October 2015, the plaintiff was promoted to an acting EL1 role. This acting role involved management duties and what the plaintiff referred to as “large accounts”. The plaintiff said that she did not cope well with the increased responsibilities, having regard to her ongoing physiotherapy and hydrotherapy.
The plaintiff saw Dr Dias (occupational physician) for the defendants on 6 January 2016. She agreed that the complaints which he recorded at that time were accurate.
Around that time, the plaintiff’s GP recommended that she try pilates exercises. The plaintiff followed that advice and continued with that regime until October 2018. The plaintiff’s GP also diagnosed her as suffering from depression. Having regard to that, and her difficulties in managing her acting higher duties role the plaintiff negotiated with her employer to return to her substantive APS6 position, and to reduce her hours to 29 per week. She commenced taking Sertraline as prescribed by her GP for depression.
In February 2016, the plaintiff travelled to Washington DC in the United States (US) to visit one of her sisters who was working there. She stayed with her sister for two weeks. The plaintiff said that her activities were low key. They caught a lot of taxis and stayed mainly in the apartment because it was winter.
After returning from that trip, the plaintiff commenced full time hours at work, although she was taking a couple of hours off each week for treatment.
In March 2016, the plaintiff attended Dr Eaton and Dr Bentivoglio at the request of her solicitors. She confirmed in her evidence the complaints which she had made to those doctors as recorded in their reports.
Later in 2016, the plaintiff applied for a promotion to an EL1 position. She was unsuccessful. She was told that she did not have enough experience acting at that level.
In July 2016, the plaintiff travelled to Hong Kong for 10 days with her younger sister. She said that they used a lot of taxis and did not do much physical activity.
After that trip, the plaintiff attended her GP on 27 July 2016 complaining about chronic pain in her right hip. The GP referred her for MRI scanning of the hip and also a CT scan of her lower back. These were undertaken on 23 August 2016. The GP then referred the plaintiff for specialist review. The plaintiff attended Dr Burns, (orthopaedic surgeon) on 29 September 2016. Dr Burns recommended some conservative treatment of the hip, however he informed the plaintiff that it was likely that she would require an operation on the hip.
In November 2016, the plaintiff was again appointed to an acting EL1 role. She then remained in that role until she was promoted to a permanent EL1 role in 2018.
The plaintiff saw Dr McDonald (orthopaedic surgeon) and Dr Dias at the request of the defendants in December 2016 and March 2017 respectively. The plaintiff confirmed in her evidence the complaints which she had made to those doctors as recorded in their reports.
Also in March 2017, the plaintiff returned to see Dr Burns. The plaintiff was suffering ongoing symptoms in her right hip and Dr Burns suggested an injection into the hip. The plaintiff underwent an ultrasound guided injection on 6 April 2017. This did not provide any improvement in her condition. The plaintiff returned to Dr Burns and decided to proceed with the surgical option.
Dr Burns carried out a surgical procedure on the plaintiff’s right hip on 26 June 2017. The plaintiff was very sore after the operation. She had to use crutches and was off work for two weeks. The plaintiff then attended physiotherapy on an ongoing basis. The plaintiff regarded the operation as successful, in that she had a lot more movement in the hip joint and was experiencing less pain. She was able to walk much further without symptoms.
In July 2018, the plaintiff travelled to New York and Cuba with a friend. She said that her friend became frustrated with her restrictions (for example, having to use taxis, needing rests and being unable to undertake physical activities such as riding a bike through Central Park).
By mid-2018 the plaintiff was attending her physiotherapist monthly and undertaking pilates weekly. In November of that year she attended her GP after a flare up of her hip pain. The GP recommended further physiotherapy. That treatment helped.
The plaintiff returned to see Dr Eaton for medico-legal assessment in December 2018. She again confirmed the accuracy of her history and complaints as recorded in Dr Eaton’s report.
At the end of December 2018, the plaintiff travelled to France to spend time with one of her sisters who was living there. The plaintiff said that the group she was with went to the ski fields but that she was unable to ski due to her hip.
In May 2019, the plaintiff reduced her workdays to nine days per fortnight. The purpose of this was to provide her with a free day during which she could attend her treatment providers and her gym. The latter provided access to pilates and barre classes, a seated exercise bike and a heated pool for hydrotherapy.
The plaintiff continued to attend her physiotherapist once per month, and her gym weekly or even a couple of times per week, up until it was closed due to the COVID-19 pandemic.
In relation to domestic assistance, the plaintiff said that in the first two weeks after the accident her sister Rachael was providing about five hours per week of domestic assistance by doing what had been the plaintiff’s share of household tasks. The plaintiff estimated that this reduced to three and a half hours until she returned to full time work. Thereafter, until her operation, the plaintiff estimated that she required about one and a half hours per week by way of domestic assistance.
During the two weeks after the operation, the plaintiff said she required additional assistance. The plaintiff said that Rachael was providing personal care and domestic assistance for about four to five hours per day. Once the plaintiff returned to work, that dropped back to two to three hours per week. The amount of domestic assistance required by the plaintiff remained at two to three hours per week up to the time of the hearing.
The plaintiff has not been able to return to any of the sports which she had engaged in before the accident. She intends to return to the gym once the COVID-19 related restrictions have eased. The cost of the gym is $50 per week. She also intends to continue with the monthly physiotherapy, which costs $105 per treatment.
In relation to the anxiety and depression which the plaintiff had suffered, she said that these continue to ebb and flow depending on the level of pain which she is suffering. The plaintiff said that she still has some anxiety with car travel, and her sleep is affected particularly if she moves and irritates her hip. The plaintiff suffers intermittent neck and shoulder symptoms with an associated headache. She takes Panadol once or twice a week, and is still taking anti-depressant medication.
The plaintiff – cross-examination
Under cross-examination by Mr Wilson, counsel for the defendants, the plaintiff agreed that she had been able to get on with her life after the accident. She had obtained promotions and completed four or five overseas trips during that time. The plaintiff had enjoyed those trips and wishes to visit other parts of the world in the future. She is hoping for further recovery so that she can increase her activity during such trips.
It was put to the plaintiff that she could consider stronger pain killers to control her symptoms. However, the plaintiff responded that she was concerned that such medication would just numb the pain and that increased activities might cause further damage to her hip. The plaintiff said that she saw her right hip as her main problem.
The plaintiff was asked about her trip to France at the end of 2018 and whether she had gone skiing in the Swiss alps. The plaintiff said that she had gone as far as hiring the necessary ski equipment, but that she had not actually skied. The plaintiff said that she had gone up the mountain but felt a pulling in her hip and decided not to risk it.
Mr Wilson asked the plaintiff how she managed long distance plane travel. The plaintiff said that she could get up and walk around on the plane and perform stretches. In relation to the trip to the US, the plaintiff said that she had visited the Lincoln Memorial and the White House while she was in Washington. She had done some walking each day, up to one and a half kilometres. The plaintiff said that she and her sister had caught the train to New York and had gone sight seeing there. The train trip took approximately three hours.
In relation to her work, the plaintiff agreed that she was doing well and that her employer had been very accommodating. The plaintiff agreed that her future was bright.
Mr Wilson then turned to the circumstances of the accident itself. Mr Wilson confirmed with the plaintiff that she did not see the driver of the Commodore carrying any weapon. She clarified that she did not deny that he was carrying a weapon, she just did not see it.
The plaintiff said that she was wearing her seatbelt at the time of the collision. The air bags in the Suzuki were not activated and she did not suffer any wounds in the accident (no cuts, abrasions or the like). The plaintiff agreed that the damage done to the Lancer was minor and superficial. The plaintiff described the damage done to the front of her car, including smashed light protector and other scuffs, noting that the bonnet had been jammed so that she could not open it. She disagreed with the proposition that the damage was minor; however, she was then taken to the online report she had made to police on 14 July 2015. The plaintiff agreed that she had inserted the words “minor damage” under the heading “Damage to Vehicle”.
Mr Wilson reminded the plaintiff of the description of the incident involving the Commodore in her report to police where the plaintiff had written: “The driver and two of his passengers stop the car in the middle-of-the-road causing all the cars behind to stop. They then got out of the car to attack the driver and passengers in the car behind.” The plaintiff agreed that the driver and passenger of the Commodore had attacked those in the Lancer.
The next sentence in the report stated: “The attackers also pushed the car into my car. Once they notice people starting to stop, then they drove off.” The plaintiff explained that the two Commodore occupants were holding onto the Lancer as it reversed. Once it collided with her vehicle, they left the scene.
Mr Wilson put to the plaintiff that her memory of the events in question now was less clear than it was in July 2015. The plaintiff did not agree with that proposition. She was then asked why there was no mention of the intervention by the driver of the car which pulled up to her left in the scuffle between the Commodore passenger and Kyle in the police report. The plaintiff responded that she did not realise that she should include that detail. It was put to her that until recently she had not told anyone about that intervention. The plaintiff said that she had told her solicitors back in 2016 or 2017. Mr Wilson suggested to the plaintiff that she was mistaken about the intervention. The plaintiff said that she did not agree.
In relation to the emergence of the Commodore occupants, the plaintiff said that the driver had got out of the vehicle a few seconds before the passenger. She said that they had walked back to the Lancer. She did not agree that they had run back.
Mr Wilson put to the plaintiff that her description of the accident given in her evidence-in-chief was different from that in her police report written the day after the accident. The plaintiff did not agree. She said only the language used had changed.
Once the plaintiff exited the Drakeford Drive roundabout she said that she kept her distance as the Commodore and Lancer both sped up and then slowed down. The distance between the Suzuki and the vehicles in front gradually increased to about 100 metres. The plaintiff did not see the Kluger at that stage. She maintained her description of the Lancer and Commodore “jockeying” for position as they exited the roundabout.
The plaintiff saw the Commodore stop abruptly and the Lancer stop immediately behind it. She was not able to say how far behind the Commodore it stopped. In relation to the measurement of the distance between where the Lancer stopped and where the plaintiff stopped her vehicle, the plaintiff said that she had performed the demonstration where she had measured 9 to 10 metres a few years after the accident. She conceded that the measurement was necessarily approximate and that it could be “dead wrong”.
Mr Wilson asked the plaintiff about her evidence that Georgia had looked back at her before the Lancer reversed. The plaintiff confirmed that and said that she did not remember the driver looking back at that stage.
In relation to the attack on Kyle by the passenger of the Commodore, the plaintiff agreed that the Commodore passenger had probably taken the first swipe at Kyle, but that Kyle was reacting by trying to pull the car door shut and also kicking at the attacker. Eventually however the door was fully open. The plaintiff agreed that as the Lancer reversed, the Commodore passenger remained standing. That is, he was not knocked to the ground by the Lancer door.
The plaintiff disagreed with the statement that the Lancer did not reverse at anything more than walking pace. She said it started off slowly, but then shot back “quite fast” before braking. She did not see the Commodore occupants running back to their vehicle.
The plaintiff was pressed as to the accuracy of her memory of the conversation which she overheard when she approached the group standing to the side of the road after the accident. The plaintiff insisted that she was correct as to the substance of what she overheard. She also said that she believed that the woman who had told her to “fuck off” was someone who had been in the Kluger.
The plaintiff was also challenged as to her memory that the first defendant was calm, laughing and joking around. It was put to her that she was mistaken. It was further put to her that he was concerned and frightened. The plaintiff did not agree with those propositions.
Mr Wilson asked the plaintiff when she first mentioned right hip pain to her GP. The plaintiff replied: “Not the exact day but it was maybe a few weeks after the accident when a lot of the pain I was feeling all over started to disappear.” She rejected the suggestion that she first mentioned the pain in her right hip to her GP on 7 September 2016.
The plaintiff said that she had been a member of a gym before the accident. She agreed that she had obtained a good result from the hip operation and that her lower back pain had cleared up. She still had neck pain on a weekly basis. She would raise this with her physio when she found it difficult to manage the pain. The plaintiff said that her right shoulder also remained troublesome. It could interfere with her performing heavier domestic tasks, such as cleaning the shower and scrubbing the oven. She also has difficulty with hanging sheets to dry and making her bed, although Mr Wilson suggested that the plaintiff might be able to work around some of these issues if she had to because she was living by herself. The plaintiff conceded that some of the suggestions made by Mr Wilson might work.
In relation to the plaintiff’s move back from the EL1 position to her substantive APS6 level, with a reduction in her hours, in January 2016, Mr Wilson suggested that part of the reason for that was that she did not have the experience and skill set necessary for the position. The plaintiff took issue with that. She considered that the reason she was not coping was because of her injuries and the need for her to obtain treatment.
The plaintiff was asked about the schedule which she had prepared in relation to her time off work since the accident; see Exhibit P6. She confirmed that she was not required to pay anything back to her employer in relation to that leave. She also confirmed that she had not actually lost money since she changed to the nine day fortnight. The arrangement was that she would work extra hours to make up for the time she took off for her treatment.
Mr Wilson asked further questions about the plaintiff’s depression. The plaintiff said that there had been periods in mid-2018 and late 2019 when she was sufficiently improved to cease the anti-depressant medication.
In the lead up to the hip operation in 2017 the plaintiff completed a “Patient Health History” form. In response to the question “Do you have or have you ever had any of the following conditions? … Depression, anxiety, other mental illness”, the plaintiff placed a cross in the “No” column. The plaintiff conceded that this was erroneous. She considered that she was still suffering from anxiety at that time.
The same form also contained a question as follows: “Do you require assistance or have concerns with any aspects of day-to-day living?”. The plaintiff again marked the “No” column. She explained that at that stage she did not have concerns because her sister was helping her. The plaintiff agreed with Mr Wilson that she could undertake all domestic activities in her own home. However, she said that she would be in pain doing them.
In relation to the time since she recovered from the immediate effects of her hip operation, the plaintiff said that she estimated that she required, on average, one and a half hours of domestic assistance per week. The plaintiff conceded that that was an estimate and that she had not kept a diary or other record. She also said that there were times when she did not receive any assistance. This occurred for example when she was travelling.
Mr Wilson raised with the plaintiff the motor vehicle accident she had been involved in when she was still at school (in 2003). Mr Wilson drew her attention to particulars which she had provided through her solicitors in November 2015. The answer given to a question about any prior motor vehicle accidents was “Nil”. The plaintiff said that she had answered by reference to a particular time period.
The plaintiff was also asked about another similar request for particulars (dated 27 June 2018) in which she was asked if she had ever been injured in a motor vehicle accident. That was answered in the negative. The plaintiff said that in fact she had not been injured in the 2003 accident. In relation to the 2003 accident, the plaintiff said that while she had hit her head and taken two days off school, she did not believe she had been injured. Her mother had sent her to the GP as a precautionary measure only. The plaintiff rejected the proposition that she was giving untruthful evidence on this matter.
In that same request for particulars the plaintiff was asked to describe how the accident (the subject of these proceedings) happened. The description given at [1d] of the letter of particulars dated 9 July 2018 was as follows:
The driver and a passenger of the third vehicle exited the vehicle and proceeded to assault a passenger of vehicle two. The First Defendant attempted to reverse, however the driver and passenger of the third vehicle attempted to prevent this by holding onto vehicle two’s door handles. In an attempt to get the driver and passenger of vehicle 3 to let go, the First Defendant rapidly accelerated, reversed, zigzagged and swerved vehicle two to make the driver and passenger of vehicle three let go. Prior to, and during the reversing, the First Defendant was physically turning his head to see where he was reversing.
The plaintiff conceded that the description in those particulars was, in parts, at odds with her evidence before the Court. She said that the particulars were incorrect in those regards.
Mr Wilson put the copy photograph marked by the first defendant to indicate where the accident happened to the plaintiff. She disagreed with the location indicated on that document. It was tendered into evidence as Exhibit D1.
The plaintiff – re-examination
In re-examination, the plaintiff clarified that the evidence summarised at [73] above related to the time when the Lancer was actually reversing. She also explained that the gym which she attended after the accident is a different type of gym from the one which she attended beforehand. It is also more expensive. It costs $50 per week, compared to the cost of the gym the plaintiff had used before the accident of $23 per fortnight.
Rachael Seselja
Rachael was born in 1985 and is approximately one year older than the plaintiff. Rachael said that she and the plaintiff were close. The plaintiff lived with Rachael (and Rachael’s partner, Cain) from December 2010 to October 2015 and again from October 2018 to the time of the hearing. The plaintiff also moved in with Rachael for a period after the surgery in June 2017.
Rachael confirmed that before the accident the domestic tasks were shared equally among the plaintiff, her partner Cain and herself. She also confirmed that she and Cain attended the accident scene on the night of 13 July 2015. She remained in the car both at the scene and at the Police Station because she was in her pyjamas.
During the weeks after the accident, Rachael recalled that the plaintiff was uncomfortable. She was seeing her GP, taking pain medication and also having physiotherapy. While they were still living together, Rachael noticed that the plaintiff was unable to assist with the domestic tasks as she had previously. Rachael said that the plaintiff could not cope with full shopping loads, cooking meals, unstacking the lower parts of the dishwasher or shower cleaning (among other tasks). Rachael estimated that she was spending at least an hour a day assisting the plaintiff during the period between the accident and October 2015.
After the plaintiff moved into her own place, Rachael continued to visit and provide assistance to the plaintiff. Rachael continued to help with cleaning, making beds, cooking and moving heavy items from time to time. Rachael estimated that she was spending about two hours per week in providing such assistance.
Immediately after her surgery the plaintiff moved back to stay with Rachael. During the initial two weeks, Rachael said that the plaintiff “needed help with everything … [and] she couldn’t do anything really for herself”. Rachael took time off work to look after the plaintiff. She saw herself as effectively providing full time care. Rachael gave an estimate that she was providing approximately seven hours per day in personal care and provision of domestic assistance.
After that intensive period immediately following the plaintiff’s operation, the pattern of domestic assistance returned to what it had been beforehand. That is, Rachael saw herself as providing domestic type assistance of about two hours per week. That continued up to the present, and included the period from October 2018 when the plaintiff moved back in with Rachael and Cain.
Mr Wilson, in cross-examination, questioned Rachael as to when she was first required to turn her mind to the issue of how much assistance she was providing. Rachael responded by saying that it was something which was always on her mind, given that it was an issue she had had to deal with daily since the accident. Rachael said that she had not kept a diary recording the time she spent providing domestic assistance. Mr Wilson suggested to her that her memory in relation to events up to four and three-quarters years ago might not be accurate. Rachael disagreed. She considered that she was able to provide a reasonably accurate estimate of the time spent, notwithstanding that she had not recorded it in writing.
Rachael said that there were periods when she did not provide assistance to the plaintiff. These periods included the times when either the plaintiff, or she herself, was travelling overseas.
Mr Wilson put to Rachael that she was just being a “good sister”. This was in the context of suggesting that the plaintiff did not really need her assistance. Rachael did not agree. She said that she would prefer not to have to provide the assistance which she was providing. She rejected the suggestion that she was exaggerating in her estimation of the times which she spent in assisting the plaintiff.
Amelia Seselja
Amelia was born in 1988 and is a couple of years younger than the plaintiff. Amelia lived in Sydney at all material times since the accident, however she would visit the plaintiff every three months or so. After the accident Amelia would help the plaintiff with her housework during her visits to Canberra, particularly when the plaintiff was living by herself, and after her operation. Amelia said that the plaintiff was less active than she had been before the accident, and that she was restricted in going for walks together. Amelia said that the plaintiff had not been able to return to horse-riding, which was an activity that they had enjoyed together previously.
Under cross-examination, Amelia disagreed with the suggestion that any assistance she provided was “minimal”. She did concede that she could only provide that help during her visits to Canberra which tended to last for a weekend at a time. Amelia also agreed that the plaintiff is someone who “gets on with things”.
The first defendant
The first defendant was born in 1998. At the time of the accident, the first defendant was 17 years of age and still at school. At the time of giving evidence, the first defendant was 22 years of age and was an apprentice electrician.
The first defendant confirmed the background summarised in [3] above. He was asked to provide a little more detail as to events which occurred in the carpark of the Tuggeranong Shopping Centre shortly after the group had left the cinema. The first defendant described the group as “joking and joyous” after having been at the movies together. In relation to the interaction with the occupants of the Commodore, the first defendant described the following:
A black SS Commodore drove past or drove through the car park and the driver had his window down and stared at myself as he drove past. He continued driving slowly while staring at us, so turning his head to look as well.
The first defendant said that he had made eye contact with the driver of the Commodore. He did not recall whether the driver said anything to him. The first defendant’s brother James was standing near the driver’s door of the Lancer. The first defendant did not think that James said anything to the Commodore driver and could not recall whether the Commodore driver had said anything to James.
Thereafter, the first defendant drove off in the Lancer intending to drop Kyle off at his home and then to head to his own home. Kyle was sitting in the front passenger seat, Georgia in the rear directly behind the first defendant and Luke in the rear behind Kyle. James, Rebecca and Ella were in the Kluger.
As the Lancer proceeded along Athllon Drive, heading towards the Drakeford Drive roundabout, the Kluger was travelling in the same direction but ahead of the Lancer. As the Lancer approached the Drakeford Drive roundabout, the Commodore drove up beside the Lancer. The Lancer was in the left lane and the Commodore was in the right lane. The first defendant said that the vehicles were traveling at about 60 kilometres per hour. The occupants of the Commodore were trying to communicate with those in the Lancer, although the first defendant was unable to make out what they were saying. Once he realised that they were trying to communicate with those in the Lancer, the first defendant ceased looking at the Commodore. The first defendant said that he focussed on the road ahead and tried to ignore the occupants of the Commodore.
As the two vehicles proceeded through the Drakeford Drive roundabout, the Commodore sped up and pulled in front of the Lancer. The first defendant said that he was not “jockeying” for position with the Commodore, nor was he interacting with them at all.
After the Drakeford Drive roundabout the roadway heading east towards Queanbeyan became Isabella Drive. The first defendant could not remember the state of the street lighting on the night of the accident. The first defendant said that the weather was fine, and the roadway was dry. What had been two lanes on Athllon Drive merged into one lane on Isabella Drive (that is, after the Drakeford Drive roundabout).
The first defendant said that as the two vehicles proceeded along Isabella Drive, the Commodore started to alternate between slowing down and speeding up. This occurred at least twice. This forced the first defendant to slow the Lancer. He would then speed up to the speed limit when the Commodore sped up.
At some point along Isabella Drive before the Clive Steele Avenue roundabout, the Commodore driver slammed on his brakes and stopped in the middle of the road. The first defendant described the driver and the front seat passenger of the Commodore getting out and running back towards the Lancer. The driver was yelling and swearing at those in the Lancer. The passenger was also yelling. The latter managed to open Kyle’s door. The first defendant said that the passenger grabbed Kyle “by the neck and shoulders and tried to rip him out of the car”.
The first defendant’s door was locked. The Commodore driver was bashing on the driver’s side window and displaying an object which the first defendant saw as a weapon. The first defendant said he was “really scared”. He was worried that someone in the Lancer might be seriously hurt. The first defendant said that Georgia was screaming, Luke was crying and Kyle was pleading with his assailant to let him go. The first defendant said that he then put the Lancer in reverse to try to get away from the situation.
The first defendant said that he had stopped the Lancer about 2 metres behind the rear of the Commodore. There was no contact between the Lancer and the Commodore. The first defendant did not know either of the persons who had attacked the Lancer. Other than the brief interaction at the Tuggeranong Shopping Centre carpark earlier that evening, the first defendant had never seen either of them before.
When asked to describe how the collision with the Suzuki had occurred, the first defendant said:
I put my vehicle into reverse and tried to escape the situation and I collided with the car behind me. I had previously checked the rear vision mirror when I first stopped and I didn’t see any car behind me, so I was shocked when I hit the car behind.
As the Lancer reversed, the front passenger’s door was fully open. The passenger from the Commodore (who was attempting to pull Kyle out of the Lancer) was “connected” with the door for a short time, although he did not fall over.
The first defendant said that he only reversed for 3 metres. He was able to make that assessment by reference to the distance he ended up from the Commodore after the collision.
After the collision with the plaintiff’s Suzuki, the occupants from the Commodore departed rapidly. The first defendant made a mental note of the number plate.
The Kluger had been in front of the Commodore. It continued to the Clive Steele Avenue roundabout and then returned around the roundabout and back along Isabella Drive towards where the collision had occurred.
After the collision the first defendant, Kyle, Georgia and Luke got out of the Lancer. This happened at about the time that the Kluger arrived back at the accident site. The first defendant said that he was scared and in shock. The first defendant said that he did not see what had occurred as a joking matter. He remembered asking the “person behind me” whether they were okay (I took this to be a reference to the plaintiff).
The first defendant said that when he reversed the Lancer it would not have been travelling more than 10 kilometres per hour. The Lancer had a manually operated gearbox, so the first defendant had had to operate the clutch to reverse.
The first defendant did not recall much of his interaction with the plaintiff. The first defendant said that the plaintiff had asked if those in the Lancer were okay. She also asked why those in the Commodore had behaved the way they did. He could not recall telling her about the incident with the Commodore at the carpark. They exchanged details. The plaintiff told them that she had spoken to police and that they should proceed to the Tuggeranong Police Station to report the incident.
The first defendant said that he had reversed the Lancer at the time he did in order to get away from the occupants of the Commodore. He had not checked whether there was a vehicle behind the Lancer because of his panic and fear of what the occupants of the Commodore might do. The first defendant said that for a couple of years after this incident he was very uncomfortable driving and lacked confidence in engaging with people. He said that the incident had made him feel “quite weak and small”.
The first defendant marked the approximate location of the accident site on a copy of Exhibit P1. That document, so marked, became Exhibit D2. The first defendant placed the site much closer to the Clive Steele Avenue roundabout than the place indicated by the plaintiff.
Although he could not recall the damage done to the Suzuki with precision, the first defendant did remember it as being “minor”. He used the same term (“minor”) to describe the force of the impact between the two vehicles.
The first defendant was shown two documents containing statements which he had made about the incident. The first was a statement he made to police on 21 August 2015, the second was a statement he made to an investigator appointed by the second defendant on 14 September 2015. The statement to police was tendered and became Exhibit D3. The second statement was also tendered and became Exhibit D4.
The statement to police was broadly consistent with the first defendant’s evidence-in-chief. It contained a little more detail in relation to some aspects of the matter. Relevantly, in the statement to police, the first defendant described the Commodore driver as having dropped a metal object about 40 centimetres long out from his sleeve. The object had what he described as a “spanner” at the top. The first defendant said that the Commodore driver started to swing the spanner towards the window as he started to reverse. That caused him to let his foot off the clutch and the Lancer jumped backwards. The Commodore passenger was caught by Kyle’s door and nearly fell to the ground.
The statement made to an investigator appointed by the second defendant was a little more detailed again. In that statement, the first defendant recounted that he had obtained his learner’s permit in March 2014, but that he had been riding off-road motorcycles since he was 10 years old. He had obtained his licence in June 2015 and had driven the Lancer daily since that time.
In describing the incident at the Tuggeranong Shopping Centre carpark, the first defendant said that his family group was laughing, “joking and mucking around”. James was the only one outside the vehicles. The first defendant said that the Commodore slowed down and the driver stopped, put his window down and yelled something at the group. The first defendant and those in the Lancer ignored them. In the statement, the first defendant provided a description of the Commodore appearing next to them before the Drakeford Drive roundabout which was consistent with his evidence-in-chief. In relation to the incident in which the Commodore pulled in front of the Lancer, the first defendant described it as having cut him off, forcing him to brake.
The first defendant again described the Commodore slowing and speeding up along Isabella Drive, before it came to a complete stop. The first defendant had to brake hard to avoid hitting the Commodore. The first defendant said that he stopped “about a quarter of a car length” behind the Commodore. He again provided a description of the attack by the occupants of the Commodore consistent with his examination-in-chief, with the additional detail provided in the police statement. The first defendant said that his intent in reversing was to give himself enough room to go around the Commodore.
At [25] of Exhibit D4 the first defendant had said:
When we first stopped I checked my rear vision mirror and saw there were no cars behind us.… Because the incident occurred so quickly and was so frightening I did not check my rear vision mirror again before reversing. I assumed the road behind was still clear. After reversing no more than half a car length I felt a slight impact and then realised that I had reversed into another vehicle stopped behind us. The impact was no more severe than the movement you feel when accelerating from a stop.
The first defendant described the aftermath again, in largely consistent terms with his evidence-in-chief and the statement to police. He did say that he saw nothing in the behaviour of the plaintiff to suggest that she had been injured. He said that the Lancer had slight damage. The first defendant said that the damage to the Suzuki was minor, indeed it was damaged much less than the Lancer.
In cross-examination, Mr Muller established that the first defendant had obtained his provisional licence the month before the accident, meaning he had only been able to drive unsupervised for a few weeks before the accident.
The first defendant was asked about the fact that he and those in the Lancer had, together with James and Rebecca, within a few minutes of the incident with the Commodore and the collision with the plaintiff, stood together by the side of the roadway comparing recollections of the events which had just transpired. Mr Muller sought to have the first defendant concede that during those discussions the first defendant may have been told things which he personally did not observe. The first defendant conceded the possibility, but said that he believed that he had personally observed all of the details told to him by others.
Mr Muller elicited from the first defendant that he had not been injured in the accident. Mr Muller put to the first defendant that he had not had reason to think about the accident weekly since July 2015. The first defendant acknowledged that to be true, although he said that the incident had constantly played on his mind for some time after July 2015. The first defendant said that he had to some degree refreshed his memory from the statements he had made to police and the insurance investigator, and his answers to interrogatories administered in these proceedings.
The first defendant was asked to provide additional details about what happened in the Tuggeranong Shopping Centre carpark shortly after the end of the film. The first defendant was not able to add a great deal. He said that his car was in a reverse park position, so he was facing the Commodore as it went past. He denied saying or doing anything to engage with the occupants of the Commodore. The behaviour of those persons did cause him to feel uncomfortable and to think that it would be better to avoid contact with them.
Mr Muller challenged the first defendant as to his recollection that he first saw the Commodore again when it pulled alongside him about 100 metres before the Drakeford Drive roundabout. The first defendant was taken to Exhibit D3 (the first defendant’s statement to police) which omitted reference to that incident. The first defendant believed he had told police about that. He was not able to explain why it did not appear in the statement.
The first defendant was asked why he did not turn left into Drakeford Drive to avoid the Commodore. He said that he felt safer travelling in the same direction as James and Rebecca in the Kluger. However, he resiled from that statement on the basis that he was not feeling sufficiently worried about the events before the Drakeford Drive roundabout to divert from his planned route back to Queanbeyan. The first defendant denied that he was travelling quickly through the roundabout, or that he was attempting to get ahead of the Commodore. He specifically denied that he was tailgating the Commodore.
Mr Muller questioned the first defendant about the description which he had given in [10] of Exhibit D3 of the Kluger, which was in front of the Commodore, slowing and speeding in reaction to how the driver of the Commodore was driving his vehicle. The first defendant maintained that the description he had given to police was accurate and was based on his own observation.
The first defendant confirmed that he had had to “slam on” his brakes when the Commodore stopped, and that the Lancer ended up about 2 metres behind the Commodore. He said that he did not normally drive with the radio on and that he believed it was not on that night. The first defendant said that he was able to make out what the driver of the Commodore was shouting to him. The first defendant maintained that both occupants of the Commodore got out of the vehicle at about the same time and ran towards the Lancer. He did not accept the plaintiff’s description of those events as accurate.
The first defendant said that the driver of the Commodore had the metal object up his left sleeve and was holding the end of it with his hand. The driver of the Commodore was banging on the Lancer’s driver’s side window with the palm of his right hand. In the course of trying to open the door, the metal object he was holding came into contact with the driver’s side door leaving some small dents. However, the first defendant could not say that he was doing that deliberately. Mr Muller challenged that account. Mr Muller put to the first defendant that nowhere in his statements had he indicated that the metal object had come into contact with the Lancer. The first defendant conceded that, however he said that it had in fact occurred as he described in his evidence to the Court.
The first defendant said that he was not aware of any bystander approaching Kyle’s side of the Lancer. However, he did say that he observed that another car had pulled up to the left of the Suzuki, which he noticed after the collision with the Suzuki.
Mr Muller asked the first defendant whether he had turned around to look behind the Lancer before he reversed. The first defendant said that he believed he had not turned around. Mr Muller asked whether the rear-view mirrors of the Lancer were correctly adjusted for the first defendant as the driver. He responded that he believed they were. The Lancer had side mirrors as well as the internal rear-view mirror.
In relation to the reversing manoeuvre, the first defendant confirmed the accuracy of what appeared in his statement to police. He stood by his description of the Commodore driver motioning as if to strike the metal object towards the driver’s side window of the Lancer. He said that the Lancer did start backwards with a jolt as he left off the clutch. It then continued to move backwards. However, the first defendant did not agree that it moved backwards 9 to 10 metres.
The first defendant agreed that he was intending to move back so that he could then drive around the Commodore. He said that he also just wanted to get away from the occupants of the Commodore. The first defendant disagreed with the suggestion that the Commodore driver had tried to hold on to the Lancer as it reversed. He said that the Commodore passenger retained hold of Kyle up to the point of the collision. The first defendant said that the Commodore passenger was not knocked away by the open door as the Lancer reversed.
The first defendant agreed that after the Commodore had left, his family group had gathered by the side of the road to talk about the incident. He denied that a member of that group had told the plaintiff to “fuck off”. He also denied that they were laughing.
Mr Muller asked the first defendant about some discrepancies between the statements which were contained in Exhibit D3 and Exhibit D4. These included whether it was James or Rebecca who was driving the Kluger; that the Commodore driver had stopped, put his window down and yelled at the first defendant; and as to the speed to which the Commodore dropped when it started the slowing down manoeuvres on Isabella Drive. In relation to the distance between the Lancer and the Commodore after both had stopped, the first defendant’s estimate in Exhibit D4 was a quarter of a car length, rather than the 2 metres which the first defendant had described in his evidence.
The first defendant was taken to [25] of Exhibit D4. He confirmed that the roadway behind the Lancer was straight for a considerable distance. He maintained that, as set out in that paragraph, he had checked the rear-view mirror when he first stopped, and that he did not see another vehicle.
In relation to the point at which the collision occurred, the first defendant accepted that the circle he had drawn on what became Exhibit D2 was about 140 metres from the Clive Steele Avenue roundabout. It was put to him that he had said that the collision had occurred only 40 metres from the Clive Steele Avenue roundabout in his answers to interrogatories. The first defendant maintained that his mark on Exhibit D2 was more likely to be accurate. It was also put to the first defendant that in his answers to interrogatories affirmed in October 2019, he had said that the point of impact with the Suzuki was approximately 5 metres behind where he had stopped behind the Commodore. The first defendant said that was his best memory at the time; however, after looking at his statements and reflecting on the matter his best memory at the time of giving his evidence was that the distance was 3 metres.
As to the point along Isabella Drive where the incident occurred, Mr Muller provided a blown-up photograph of the roadway (subsequently admitted into evidence as Exhibit P12). That photograph indicated that at the point 140 metres to the west of the Clive Steele Avenue roundabout there appeared to be enough room for two vehicles side by side on the eastbound side of the road. The first defendant agreed with that. In that context, he conceded that his mark on Exhibit D2 was incorrect.
In relation to the 3 metre distance of the Lancer reversing before it hit the Suzuki, the first defendant maintained that he was able to accurately estimate that distance having regard to his observation of the location of the Commodore and also of its driver at the time of the collision.
Kyle Mundy
Kyle was born in 1998. He and the first defendant had been friends since they were very young.
In relation to the evening of 13 July 2015, Kyle described the group as “mucking around” in the Tuggeranong Shopping Centre carpark after the film. In particular, Kyle described James as “tormenting” the first defendant to a degree. This caused them to lock the doors of the Lancer, at which point James lifted the windscreen wipers up off the screen. Kyle got out of the vehicle to place them back down, unlocking his door. As Kyle got back into the passenger seat of the Lancer, the Commodore drove past. Kyle said that he saw the driver look at them. He said that none of the group talked to those in the Commodore, pointed at them, or did anything towards them.
Kyle expected that the first defendant would drop him off at home at Karabar. He thought that they had school the next day.
Mr Wilson asked Kyle whether he saw the Commodore again that evening. Kyle said that he first saw it again on the Drakeford Drive roundabout, as it was about to overtake the Lancer. Kyle said that the front passenger of the Commodore wound down the window and yelled something at him. However, he could not hear what was said because the windows of the Lancer were up, and music was playing in the Lancer. Kyle said that he had indicated to the first defendant that perhaps those in the Commodore wanted to race. Kyle said that he had told the first defendant “It’s not worth it, slow down, let them go past.”
Kyle said that the Lancer was not racing, nor was the first defendant “racing” to get in front of the Commodore as the vehicles exited the roundabout. He estimated the speed of the Lancer at 30 kilometres per hour as it went through the Drakeford Drive roundabout.
Kyle described the Commodore as slowing and speeding up along Isabella Drive, before it came to a complete stop. This caused the first defendant to brake extremely hard. The Lancer “slid” a metre or so after braking, but stopped short of hitting the Commodore.
In the lead up to the Commodore stopping, Kyle said that he had observed that the Commodore had turned its lights off. He said that there was no street lighting along Isabella Drive past the Drakeford Drive roundabout. However, the Lancer had its headlights on. Kyle denied that the Lancer was tailgating the Commodore. He did not see the first defendant to do anything to antagonise those in the Commodore.
After the Lancer had come to a stop, Kyle said that he saw the occupants of the Commodore get out of the vehicle and come towards them at a fast walking pace. He saw something shiny in the driver’s hand. The passenger was wearing a “Hi-Vis” jumper. Kyle wound down his window to speak to the passenger. However, the passenger reached through the window and grabbed Kyle by his clothing. He then pulled Kyle’s door open and tried to pull Kyle out. At that point the first defendant started to reverse the Lancer.
Kyle estimated that the Lancer had stopped about 2 metres behind the Commodore. He could see the registration plate, but not under the back bumper. Kyle said that the Lancer had reversed for about two seconds and then collided with the plaintiff’s car. He said that it did not exceed 10 kilometres per hour while reversing. The passenger of the Commodore who was assaulting Kyle was caught by the open door, but was not knocked off his feet. Kyle recalled that Georgia was screaming at this point. He estimated that they reversed only 2 to 3 metres. Kyle said he could see the rear tyres under the back guard of the Commodore. He described the impact of the collision as “a heavy kick” to the car. The damage to the vehicles was minor. Kyle said that he saw that a VT Commodore had pulled up to the left of where they were. He did not see anyone get out of that vehicle. Someone (presumably the driver) managed to open a door, but that person did not have time to get out. That car gave pursuit to the Commodore when it took off.
After the vehicles had been moved off the road Kyle checked that the others in the Lancer were okay. They were not joking around. He was shocked. He spoke to the plaintiff to see if she was all right. Kyle said that he did not observe the first defendant to be uncooperative with the plaintiff. He did not witness anyone tell the plaintiff to “fuck off”.
Kyle confirmed that he gave signed statements to an investigator appointed by the second defendant and another to police. These were dated 13 October 2015 and 10 December 2015 respectively. They were tendered and became Exhibit D5 and Exhibit D6 respectively.
Under cross-examination, Kyle agreed that he had refreshed his memory from his statements. He did not agree that his recollection might have been affected by things he was told by others in the group after the incident. He was unable to identify where on Isabella Drive the collision had occurred. Kyle said that it was “pitch black” that evening, given that there were no lights where they had stopped. He agreed that the accident had occurred where there was just a single eastbound lane. Kyle marked a copy of Exhibit P1 with his best estimate of where the accident occurred. That became Exhibit P13. He placed a rather large circle a little to the west of the half-way point between the two roundabouts identified in the evidence.
In relation to what had occurred at the Tuggeranong Shopping Centre carpark, Kyle maintained his testimony as given in examination-in-chief. In particular, he was confident in his recollection that the Commodore driver had not put his window down and shouted something out, or James having said “fuck off mate” in response. Kyle reasoned that he would have seen if the driver’s window was down because it was heavily tinted. Mr Muller asked Kyle as to how it was that he could see the driver of the Commodore “looking back” at him as it went by (as recorded in the statement to police). Kyle said that he could see that through the windscreen, which was not tinted.
Kyle stood by his recollection that the following day after 13 July 2015 was a school day. It was put to him that the first defendant, who attended the same school, had recorded that it was school holidays. He did not agree. He recalled that he had had to have two days off school due to shock and nightmares about the incident.
Mr Muller asked Kyle why he thought that the passenger of the Commodore had singled him out when he yelled as the Commodore passed the Lancer on the Drakeford Drive roundabout. Kyle said that the yelling had been directed at him and also at the first defendant. Kyle agreed that it would be wrong to say that the Commodore had first pulled alongside the Lancer 100 metres before the Drakeford Drive roundabout.
Kyle denied that the first defendant was trying to stay in front of the Commodore as the vehicles approached the merging area as they exited the roundabout. Kyle did concede that he might have been wrong about the absence of street lighting on Isabella Drive. Kyle clarified that the Commodore lights went off when it stopped, and not beforehand.
Mr Muller challenged Kyle’s recollection that the speeding up and slowing down episodes had occurred three or four times by reference to his statement to police, which only referred to one such episode. Kyle maintained that it had occurred three to four times. He also said that the Lancer had kept a steady speed to let the Commodore get ahead. The Lancer was about two car lengths behind the Commodore when the latter braked heavily to a stop. He clarified that the wheels of the Lancer in fact locked under braking and that it skidded about a metre.
After the Lancer had stopped, and during the time the Commodore occupants were walking back to the Lancer, Kyle had time to wind his window down leaving a sufficient gap for the passenger to reach in and grab him.
Mr Muller asked Kyle about his estimate that the Lancer had stopped 2 metres behind the Commodore. Kyle accepted that he might be half a metre out, but no more than that. He conceded that his estimate of reversing for two seconds was very approximate. However, in relation to the distance of the reversing Kyle said that it was a “very accurate guess”. He also conceded that the Commodore was only there for a moment after the collision.
Kyle said that the reversing was “about as smooth as anyone could get”. He was confident that there was no jolt or jump as the clutch was let out. He disagreed that the Suzuki was 9 to 10 metres behind the Lancer. He also did not accept that the Suzuki had its hazard lights on. However, Kyle went on to say that his attention was directed to what was happening in front of, and to his side of, the Lancer. He said that if there had been a dent in the bonnet of the Suzuki he would have noticed it. Indeed, he refused to accept that there was such damage.
In re-examination Kyle explained that by “accurate guess” he meant the closest number he could give from memory, given that he did not have a stop-watch or measuring tape available to him at the time of the accident.
Luke Reardon
Luke was born in 2000. Luke frankly conceded that his memory of the events on the evening of 13 July 2015 was not good (he put it as “four” out of 10). He had not made a statement to police or to an investigator appointed by the second defendant (as had the first defendant and Kyle). Luke said that he was first asked to recollect what had occurred only a couple of weeks before the hearing.
Luke said that he did not notice the Commodore at the Tuggeranong Shopping Centre carpark. He did see it pass the Lancer at a roundabout. Luke could not recall which roundabout, however, it may be assumed that Luke was referring to the Drakeford Drive roundabout. Luke said that one of the occupants of the Commodore was saying something out of a window, but he could not make out what was being said as the windows of the Lancer were up. Somewhere along Isabella Drive (he was unable to say where) the Commodore stopped and two people got out. They approached the Lancer, but could not get in the vehicle as the doors were locked. Luke said that he was scared. Luke recalled that the first defendant reversed and hit another car. He could not comment on how far the Lancer moved, nor as to the force of the impact. He did not see the first defendant joking around after the incident. He did not witness anyone telling the plaintiff to “fuck off”.
In cross-examination Luke confirmed that he had no real recollection of the conversation within the group after the accident. He also had no recollection of what the Commodore was doing between the time when he saw it on the roundabout and the time it stopped in the road.
Rebecca Coulson
Rebecca was born in 1993. She was 22 years old at the time of the accident and was 22 weeks pregnant. Rebecca described herself as having a large stomach and a “rounded” face at that time.
Rebecca recalled that after the movie on 13 July 2015 the group had returned to the Tuggeranong Shopping Centre carpark. Their vehicles (that is, the Kluger and the Lancer) were a space apart. Rebecca recalled that there was some playing around. She was to drive the Kluger. She observed the Commodore drive past. Rebecca said that the driver was “piercing daggers out the window” at them. She remarked that he “didn’t look like a very friendly chap”. Rebecca said that the driver of the Commodore yelled out to the group and that James responded “fuck off mate”. Although, Rebecca could not be sure whether James was saying it to the Commodore driver or to his brothers. Rebecca recalled that she had said to James words to the effect of “okay, let’s go this is a bit suss”.
As the Kluger approached the Drakeford Drive roundabout, Rebecca noticed a vehicle coming from behind the first defendant. At first she did not recognise it; however, when it pulled in front of the Lancer she saw that it was the Commodore. By this time, James had turned around and was keeping a watch on it. Rebecca recalled that James had said to her that the Commodore was slowing down, so Rebecca slowed the Kluger down. However, the Commodore sped up so as to tailgate the Kluger. Rebecca then sped up. This occurred perhaps three or four times.
Rebecca said that at a point before the Clive Steele Avenue roundabout, James said “stop the car”. Rebecca looked in her rear-view mirror and saw that the Commodore and the Lancer had stopped. The Commodore did not have its lights on. Rebecca said that because she was approaching a concrete barrier, double lines and oncoming traffic, she decided to proceed around the roundabout and drive back towards the two stopped vehicles. She did see, in her rear-vision mirrors, two men get out of the Commodore and move back towards the Lancer. She thought that one of the occupants of the Commodore had something in one hand, it could have been a phone or keys. She could not see well enough to be sure.
As the Kluger returned west on Isabella Drive, Rebecca observed the two men moving quickly back to the Commodore, which then drove off, still with no lights.
Rebecca was unable to say how far apart the Lancer and Commodore had been when they had both stopped, although she concluded that they were not far enough apart to allow the first defendant to just drive around the Commodore.
Rebecca pulled the Kluger up on the opposite side of the road from where the Lancer was. She and James then went to check on the well-being of the occupants of the Lancer. She noticed a person she identified as a “chubbier woman” talking to James. It transpired that this woman was from the car which had pursued the Commodore. Rebecca said that the occupants of the Lancer looked as if they were shocked, and Georgia was “a bit shaky and teary”. There was no joking around in relation to the incident itself, although James did make the first defendant and Kyle laugh about something else.
In relation to the plaintiff, Rebecca said that she did ask her if she was okay and if they needed to call anybody. The plaintiff said that she had called the police and that they needed to go to a police station to report the incident. The plaintiff said that she was okay, but that she had a little bit of a sore neck where the seatbelt had gotten tight. Rebecca denied telling the plaintiff to “fuck off”.
At one point a police car had driven past the accident scene and Rebecca recalled having said “what the fuck” when it failed to stop. That was in the context, as I understood it, that they had tried to wave the police car down.
Rebecca marked on a copy of Exhibit P1 where she thought the collision occurred. That became Exhibit D8. She placed the accident site about two thirds of the distance from the Drakeford Drive roundabout to the Clive Steele Avenue roundabout.
Under cross-examination, Rebecca agreed that when the Commodore and Lancer were behind the Kluger she had a series of “snapshots” of what was happening via her mirrors. She also agreed that she had had conversations with other members of the group after the incident about what had happened, however, she believed that her evidence was based on what she observed, not what she was told.
Mr Muller asked Rebecca if she had made a written statement. Rebecca said that she had provided a statement to police in 2015 or perhaps early 2016. She did not have a copy. A call was made for the police statement, however those acting for the defendants were unable to produce a copy of that document.
Rebecca was asked as to whether she recalled the Commodore stopping while they were at the Tuggeranong Shopping Centre carpark. She did not recall that occurring. Mr Muller asked Rebecca why she had slowed down when the Commodore (and thus the Lancer) slowed down after they had passed the Drakeford Drive roundabout. She said that she wanted to keep sight of the Lancer as the first defendant was unfamiliar with the area. They were all meant to be heading to the home of the first defendant’s mother, and the intent was that the Lancer would follow the Kluger back to Queanbeyan.
Rebecca could see the two sets of headlights of the vehicles behind her in her side mirrors, although she was not able to really judge how close the Lancer was to the back of the Commodore. She said that there were street lights along Isabella Drive, however some of them were out. She was challenged about that observation, however she maintained that her memory in that regard was correct.
Mr Muller questioned the plaintiff as to the details of her observations after James had said “stop the car”. She said that she was not good with distances. She believed that the Kluger was one and a half car lengths ahead when the Commodore stopped, and that it took 20 seconds to drive to the Clive Steele Avenue roundabout. She was then unsighted for a number of seconds as the Kluger went around the Clive Steele Avenue roundabout before exiting back into the west bound lane of Isabella Drive. The Commodore had gone by the time Rebecca parked the Kluger on the nature strip adjacent to that lane.
The plaintiff also gave evidence that the first defendant turned and looked back. That is said to have occurred before the occupants of the Commodore got out of the vehicle. The first defendant denied that he had turned around. His evidence was that he got a shock when he hit the Suzuki because he did not know that it was there.
I accept the first defendant’s evidence on this issue. It may well be that the plaintiff did see the first defendant turn his head at a point just after she had stopped and put her hazard lights on. That does not mean that the first defendant actually saw her vehicle. Indeed, the first defendant said that he had looked in his rear vision mirror when he first stopped and had not seen any vehicle. I accept that evidence.
This raises the question of where the Suzuki was at the time when the Lancer first stopped. Mr Wilson submitted that it was 100 metres away. Certainly, at one point the plaintiff said she was that far behind the Lancer as they proceeded along Isabella Drive. She also said that she was hanging back somewhat due to the erratic driving which was occurring ahead. However, given that the Commodore and the Lancer had slowed and sped up at least twice, it seems unlikely that the plaintiff maintained the gap of 100 metres with the Lancer. I think it probable that she gradually closed the gap. Even if the plaintiff had maintained the 100 metre gap, assuming that she was driving a little under the speed limit of 80 kilometres per hour, she would have only been a few seconds behind the Lancer when it stopped.
Once the Commodore occupants got out of the vehicle and approached the Lancer it is clear that the first defendant’s attention was focussed on them and particularly on driver who was approaching his side of the Lancer. I accept his evidence that he simply did not become aware of what was happening behind him once the attacks by the Commodore occupants commenced. The first defendant assumed, having seen nothing in his rear vision mirror, that there was nothing behind the Lancer.
It follows from the above, that I find that the first defendant was not aware of the presence of the Suzuki when he reversed the Lancer.
The reversing manoeuvre
I agree with the submission of Mr Muller that in essence, the description given by the plaintiff in her evidence accorded with the substance of the first defendant’s account. That is, that the Lancer started moving, then jerked or jumped back at a faster speed. The distance which it travelled is logically governed by my finding as to the location of the Suzuki. I find that the Lancer reversed at least one and a half car lengths (which I take to be a distance of 7 to 8 metres). I do not accept as reliable the estimates of time, speed or distance given by the first defendant or Kyle.
I accept that the collision was not a major one. The descriptions of the impact and the nature and extent of the damage do not allow for such a conclusion. However, it was clearly more than a mere bump. It seems to me that Georgia’s evidence accords most closely with the reality.
I accept the evidence of the plaintiff that, seeing the events unfold before her, she was braced on the steering wheel with her right foot on the brake. That accords with the probabilities and also explains how her right hip was injured in the way it was.
Liability
It is beyond doubt that the first defendant, as the driver of a motor vehicle, owed his passengers and other road users a duty of care. It is also beyond doubt that the standard of care owed was, as the plurality (Gummow, Hayne and Kiefel JJ) said in Imbree v McNeilly [2008] HCA 40; 236 CLR 510 (Imbree) at [27]:
… the same as any other person driving a motor vehicle - to take reasonable care to avoid injury to others. The standard thus invoked is the standard of the “reasonable driver”. That standard is not to be further qualified, whether by reference to the holding of a licence to drive or by reference to the level of experience of the driver.
The issue in this case is whether, in the particular circumstances which involved the criminal acts of the occupants of the Commodore, the first defendant breached the duty of care which he owed to the plaintiff.
The starting point must be to apply the principles mandated by statute. Here that is pt 4.2 of the CL(W) Act. The provisions where are relevant here provide:
42Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43Precautions against risk—general principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b) the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity creating the risk of harm.
44Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
...
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
…
There is no issue between the parties that in ordinary circumstances the application of the above principles would lead to the conclusion that the first defendant was negligent. That is, without the presence of the occupants of the Commodore, if the first defendant had reversed into a stationary car behind him it would be inevitable that he would have been found negligent in failing to keep a proper lookout.
However, the defendants rely on what are sometimes referred to as the “agony of the moment” cases. In Leishman at 175 Street CJ said:
This so called principle of acting in the "agony of the moment" is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so-called "agony of the moment", he makes an error of judgment and makes a step which wiser counsels and more careful thought would have suggested was unwise.
The defendants in their submissions placed particular reliance on the decision in Abdallah. In that matter, the defendant at the trial was driving on a motorway when another vehicle had swerved in front of him, bumping the front of his vehicle. Shortly afterward the defendant drove down an exit ramp. The defendant saw the other vehicle parked by the side of the ramp. The defendant pulled up about 5 metres behind the other. However, the driver of that vehicle emerged with two karate sticks and proceeded to smash the defendant’s external mirror and began striking the vehicle. The defendant had locked his doors and wound up his windows. He was fearful for his safety. He tried to drive off, however his vehicle hit the back of the assailant’s vehicle. The defendant reversed and then drove away. The plaintiff, who was the assailant’s aunt, was sitting in his vehicle at the time of the collision. She claimed to have suffered personal injury due to the negligence of the defendant. The plaintiff succeeded at first instance.
The Court of Appeal (Stein JA, Meagher and Beazley JJA agreeing) allowed the defendant’s appeal. After referring to the passage from Leishman extracted in [312] above Stein JA said:
I am unable to agree that the actions of the respondent, as found by her Honour, were unreasonable in the circumstances. The respondent was in a situation that was not of his making. Undoubtedly, if he had not felt threatened and if his mirror had not been smashed, he would have taken greater care in driving off. However, he was intimidated and believed the situation required immediate action. His reaction was entirely reasonable. It is true that the action which he took resulted in the collision. However, given the circumstances he faced, his actions were perfectly reasonable and accorded with the conduct of a reasonably prudent person.
The defendants in the present case submitted that the situation here was precisely the same as that in Abdallah. The first defendant was faced with a sudden emergency. He was fearful for his own safety, and that of his passengers. He panicked and did that which any reasonable driver would have done, that is, he tried to move his vehicle away from the danger. In doing so, the first defendant made an error of judgment (in not looking to check whether there was a vehicle behind him) which was understandable in the circumstances.
I have considerable sympathy with the position of the first defendant. It is significant that he was a very young man at the time of the accident who had only been driving on public roads unsupervised for a few weeks. I suspect that many young and inexperienced drivers faced with the situation which the first defendant faced would have done exactly what he did.
However, the decision in Imbree requires the Court to apply the standard of the reasonable driver without regard to his or her level of experience. The standard is an objective one, although of course s 42 CL(W) Act requires the Court to take into account the information which the defendant actually had or should have had at the time of the relevant incident.
I have accepted that the first defendant did not look back to check behind the Lancer immediately before he reversed. I also accept that the reason he did not do so was that he was scared and was focussed on the actions of the occupants of the Commodore. As the first defendant said in his evidence, he was reversing to get away from them. He was intending to move back and then to drive around the Commodore.
However, the difficulty for the defendants here is the evidence (which I have also accepted) that the first defendant did look in his rear vision mirror when he first stopped the Lancer. However, he said that he did not see any car behind the Lancer. There really is no adequate explanation for him failing to see the approaching Suzuki. It is probable, as testified by James in particular, whose evidence I accept on this issue, that the street lighting was poor. That makes it all the more surprising that the first defendant did not see the headlights of the Suzuki. Even if the Suzuki was 100 metres away (and I find that it was probably somewhat closer at the time when the first defendant looked at his rear-view mirror) the first defendant should have seen it. Moreover, if he had seen the Suzuki he would have realised, given that there was only one eastbound lane at that point, that it was probable that there would be at least one car stopped behind the Lancer in the coming seconds.
It may be that the first defendant’s failure to see and appreciate the presence of the Suzuki was the product of his inexperience as a driver. Indeed, that seems to me to be the most likely explanation. However, I am satisfied that that failure amounted to a breach of the applicable standard of care in the circumstances. The first defendant knew that the Commodore had been driving aggressively and erratically. For it to have stopped, with its lights off, on a single lane of what was a significant arterial road was extremely unusual. A reasonable driver in those circumstances would, in my view, have been carefully checking his/her surrounds and thinking of options for escape even before the Commodore occupants had emerged. A person in that situation should have checked the rear vision and noted the presence of the Suzuki. Once aware of it, the fact that it would probably be stopped behind the Lancer would have been a factor which he/she would have taken into account if it did become necessary to drive away from the situation.
Indeed, I am satisfied that if the first defendant had seen the Suzuki he would have checked again before reversing, and thus avoided the collision. It was far enough back to have allowed him to reverse to create enough room to drive around the Commodore without colliding with the Suzuki. While I have no doubt that the first defendant was fearful, and perhaps even panicky, I do not believe that, if he had been aware of the presence of the Suzuki, he would nevertheless have so lost the capacity for risk assessment as to have reversed in an uncontrolled way.
It follows from the above, that I find that the first defendant did negligently fail to keep a proper lookout, and that failure caused the collision between the Lancer and the Suzuki.
Consideration – Damages
In broad terms, apart from the cause of the plaintiff’s right hip condition, there was not a great deal of difference between the diagnoses made by the medico-legal experts qualified by the plaintiff and those qualified by the defendants.
I accept the opinion of the last doctor to have assessed the plaintiff for medico-legal purposes, Dr Burrow. That is, I accept that the plaintiff suffered from a musculo-ligamentous injury to the neck which in turn caused referred symptoms to the right trapezius muscle and the right shoulder. The neck-related symptoms were intermittent by March 2019. I note that they have persisted.
In relation to the lower back complaints, I find, in accordance with Dr Burrow’s view, that the plaintiff suffered the aggravation of pre-existing (but asymptomatic) degenerative changes. That aggravation was ongoing at the time the plaintiff saw Dr Burrow, although it was not highlighted in the plaintiff’s evidence at the hearing.
I do not accept the evidence of Dr Dias that the plaintiff’s neck and lower back complaints had “clinically resolved” some arbitrary time after the accident.
The main ongoing issue for the plaintiff, both when she saw Dr Burrow and at the time of the hearing, was her right hip. I accept the analysis of Dr Burrow in relation to the cause of the plaintiff’s hip injury. It is likely that the plaintiff did have an asymptomatic vulnerability to injury in that hip, as Dr Burrow explained. That is also consistent with the observations of Dr Burns. I am not able to make a precise finding as to the magnitude of the impact between the Lancer and the Suzuki. Clearly it was sufficient to cause some damage to both vehicles. More importantly, it was sufficient enough, in my view, to have caused injury to the plaintiff. It is not relevant that the plaintiff may have been vulnerable to injury as it is trite that a defendant liable in negligence must take the plaintiff as they find them.
I reject the opinion of Dr McDonald as to the causation of the plaintiff’s right hip condition, as summarised at [221] above. Firstly, his conclusion was based on the assumption that the Lancer only moved 2 to 3 metres before colliding with the Suzuki. I have found that the reversal distance was probably 7 to 8 metres. It is thus probable that the forces involved in the collision were significantly higher than that assumed by Dr McDonald.
Secondly, Dr McDonald did not accept that the plaintiff had complained of symptoms relating to her right hip sufficiently soon after the accident to support a causal connection. However, I note that the plaintiff was complaining of pain in her right groin by the day after the accident. I understood Dr McDonald to concede that such pain is consistent with the right hip injury. Moreover, while it is true that the GP notes for the consultations from 14 July to 3 August 2015 do not refer specifically to a right hip complaint, it is significant that the notes of the plaintiff’s treating physiotherapist do refer to such a complaint. For example, the note of the attendance on 29 July 2015 records: “The hydrotherapy is helping the right hip and leg discomfort…” (Emphasis added).
The evidence of the plaintiff was that she initially complained of fairly generalised symptoms in the period immediately after the accident. It was only as time passed that her injuries seemed to have become more localised. That evidence is corroborated in my view when regard is had to the clinical notes of those treating the plaintiff.
Dr Burrows thought that the plaintiff would suffer some level of restriction in her ability to perform heavier household duties and participate in sport and recreational activities on a permanent basis. I understood this to be primarily related to her right hip condition. Dr Burrows did not think that the plaintiff would suffer any incapacity for her office-based employment. I accept those opinions.
I also accept the opinion of Dr Oelrich as summarised at [225] and [226] above.
I will assess damages by reference to the findings summarised above.
General damages
The plaintiff has been left with a permanent disability in relation to her right hip. There is no evidence that she will require further operative treatment, however it does and will continue to interfere with her ability to enjoy the sporting and recreational activities which she was able to undertake freely before the accident. It will also restrict her mobility and the options which she might otherwise have had when engaged in travel, which is something which the plaintiff particularly enjoys.
I also take note of the plaintiff’s other complaints and her psychological upset during the nearly five years which have elapsed since the accident.
In my view, it is appropriate to award the plaintiff $110,000 for general damages. I award interest on one half of that amount for the past. That results in an award of $5,500.
Out of pocket expenses
I have found that the plaintiff’s right hip condition was caused by the accident. The plaintiff claimed out of pocket expenses of $38,527.13. The defendants disputed $12,388.38 of this figure. The amounts disputed included money spent on physiotherapy, radiology (MRI scanning in August 2016, so far as I can see), gym membership, massage, pilates and medication (mainly anti-depressants). Having accepted that the plaintiff’s injuries were caused by the accident, I also accept that it was reasonable for her to obtain various types of treatments over the years to cope with her injuries. It was also reasonable for her to investigate the cause of her condition by having radiology and MRI scanning. I also accept that it is reasonable for the plaintiff to continue to take anti-depressants as prescribed by her GP. Overall, I accept the total amount of out of pocket expenses claimed by the plaintiff to be reasonable.
I note from the schedule in Exhibit P8 that the plaintiff has paid $23,417.15 out of her own funds. Most of this was paid during the past three years or so. It is not practicable to make a precise award in relation to interest given the number and differing dates of these payments. I propose to award interest at three per cent over three years on this sum in the exercise of my discretion under r 1619 of the Court Procedure Rules 2006 (ACT). That results in an interest amount of $2,108.
In relation to future expenses, I note the very rough estimations made by Dr Burrow that the plaintiff will require ongoing medication and GP reviews with the possibility of occasional orthopaedic consultations. It also seems likely that the plaintiff will require membership of a gym such as the Hale gym where she can access services of a rehabilitative nature. Having regard to the costs estimated by Dr Burrow, the plaintiff would need about $35 per week for the foreseeable future. The extra cost of the Hale Gym was, according to the plaintiff, $36.50 per week. It is not clear how many weeks of the year the plaintiff will pay for that membership.
It seems to me that the allowances made by Dr Burrow somewhat exceed the costs which the plaintiff has been incurring for medications and GP visits. On the other hand, it may be that the plaintiff will require intermittent physiotherapy or like treatment from time to time in the future.
It is not possible award damages under this head on a precise arithmetical basis. If I was to award a lump sum based on an estimate of $40 per week for the next 25 years discounted at three per cent I would award $36,880. I note that Mr Muller argues for an award of $50,000 based on the claim made in the statement of particulars. However, as discussed above, Mr Muller concedes that the evidence falls well short of sustaining the claims as made in that document.
Doing the best I can, I award the amount of $25,000 for future out of pocket expenses.
Loss of earning capacity
The plaintiff claims the figure of $17,556 for loss of earning capacity. A significant portion of this figure represented personal leave or flex time adjustments. The plaintiff has thus not suffered any actual financial loss in respect of her time away from work. I accept that she has suffered a loss of personal leave which would otherwise have accumulated for the plaintiff’s benefit so long as she remains employed with the Australian Public Service. In that context, it would be appropriate to allow some proportion of the value of that leave.
I accept that the plaintiff is likely to remain in the Australian Public Service for the foreseeable future. She has been successful in that career since she joined in 2011 and it appears that she enjoys the work and is well regarded by her supervisors. In that context, I propose to award the plaintiff $12,000 inclusive of interest and superannuation for past loss of earning capacity.
However, in the same context it seems to me to be speculative to conclude that the plaintiff will suffer any actual financial loss in the future. Dr Burrow did not see the plaintiff as suffering from a loss of earning capacity in relation to her injuries. Moreover, having regard to the plaintiff’s chosen career path, I am unable to see an appreciable prospect of her suffering a financial loss due to those injuries. I decline to award damages for future loss of earning capacity.
Griffiths v Kerkemeyer damages
I have accepted the evidence of the plaintiff and her sisters that the plaintiff has needed and obtained assistance with the heavier and more awkward household tasks since the accident. Mr Muller relied on the figures contained in the statement of particulars. That claim provides a useful framework in which to assess the damages under this head, although I note the defendants’ submission about the absence of evidence from the plaintiff about living by herself after October 2015. It seems to me likely that the level of assistance which the plaintiff received after that time would have dropped somewhat from that which she had been receiving up to that time. Although the plaintiff’s evidence and that of Rachael was not precisely consistent as to the hours of assistance provided from time to time, I have concluded that, for the past, the plaintiff needed, and received, assistance as follows:
Period
Hours/Week
No. Weeks
Totals
July 2015 to October 2015
4
12
48
October 2015 to June 2017
1.5
84
126
June 2017 to July 2017 (surgery)
28
2
56
July 2017 to June 2020
1.5
154
231
Total
461
The above hourly figures have been slightly discounted to allow for periods when the plaintiff was travelling or Rachael was travelling, or, for some other reason, the plaintiff did not obtain assistance.
I do not accept the argument of the defendants that the plaintiff could make do by simply rearranging the way in which she does her domestic chores. It seemed to me that if the plaintiff could have coped so easily with her restrictions (particularly in relation to her right hip) so as to avoid calling on her sisters for help, she would have done so.
Mr Muller, on behalf of the plaintiff, claimed a rate of $45 per hour for this assistance. Having regard to the figures evidenced in Exhibit P10 I accept that figure as reasonable. I award the plaintiff damages for past assistance $20,745 (461 x $45). Given that the rate of $45 appears to be a current one interest should be awarded at the rate of two percent over the period of the claim having regard to Grincelis v House [2002] HCA 42; 201 CLR 321. I therefore allow $2,075.
For the future Mr Muller claimed one and a half hours per week to age 75. While I accept that the plaintiff will require assistance at around this level for the foreseeable future, it seems to me that there are simply too many variables to make an award on the basis as submitted. The plaintiff may spend more time travelling, particularly as she nears retirement. Technology could remove some of the impediments to her performing domestic tasks, as occurred with the introduction of the “stick” vacuum cleaner. It is appropriate in my view to award a substantial buffer to take account of these imponderables. I award $45,000.
Loss of superannuation
I have included an allowance for superannuation in the amount allowed for past loss of earning capacity damages. I have not awarded damages for future loss of earning capacity, so no separate amount is allowable under this head.
Damages awarded
The damages recoverable by the plaintiff are summarised in the following table:
Head of Damage Amount General Damages $110,000.00 Interest $5,500.00 Out of Pocket Expenses Past $38,527.13 Interest $2,108.00 Future $25,000.00 Loss of Earning Capacity Past $12,000.00 Interest Future Nil Griffiths v Kerkemeyer Past $20,745.00 Interest $2,075.00 Future $45,000.00 Loss of Superannuation Nil Total $260,955.13
There will be judgment for the plaintiff in the sum of $260,955.13. I will hear the parties on the question of costs.
| I certify that the preceding three hundred and fifty-three [353] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: |