Shaikh v Risk

[2019] NSWDC 557

District Court

New South Wales

Medium Neutral Citation:	Shaikh v Risk [2019] NSWDC 557
Hearing dates:	27-29 August 2019; 20 September 2019
Date of orders:	03 October 2019
Decision date:	03 October 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff in the sum of $31,312.64. (2) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. (3) Liberty to the parties to apply to vary order (2) within 14 days. (4) Liberty to the parties to approach the court within 7 days to correct any mathematical errors in the damages awarded.
Catchwords:	Torts – negligence – motor vehicle accident – whether breach of duty of care by defendant – whether contributory negligence by plaintiff – causation - significance of prior medical conditions - extent of plaintiff's injuries arising from the accident – extent of damages
Legislation Cited:	Civil Liability Act 2002 (NSW) Road Rules 2014 (NSW)
Cases Cited:	Argo Managing Agency Ltd v Kammessy [2018] NSWCA 176 Boateng v Dharamdas [2016] NSWCA 183 Davis v Swift [2014] NSWCA 458 El-Mohamad v Celenk [2017] NSWCA 242 Graham v Baker (1961) 106 CLR 340 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Johnston v Stock [2014] NSWCA 147 Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 Manley v Alexander [2005] HCA 79; (2005) ALJR 413 Marien v Gardiner [2013] NSWCA 396 Mason v Demasi [2009] NSWCA 227 Penrith City Council v Parkes [2004] NSWCA 201 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Smith v Alone [2017] NSWCA 287 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths Ltd (2012) 246 CLR 182 Wallace v Kam (2013) 250 CLR 375 Worsfold v Howe [1980] 1 WLR 1175
Category:	Principal judgment
Parties:	Amrin Shaikh (Plaintiff) Elias Risk (Defendant)
Representation:	Counsel: J Trainor (Plaintiff) A J Renshaw (Defendant)   Solicitors: Gajic Lawyers (Plaintiff) Holman Webb (Defendant)
File Number(s):	2018/00358121

Judgment

1. In these proceedings, the plaintiff, Mrs Amrin Shaikh, seeks damages under the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) for personal injuries which she alleges have been suffered by her as a result of the negligence of the defendant in relation to a motor vehicle accident which occurred on 3 April 2017.

2. It is clear from the evidence that the motor vehicle accident occurred on the day alleged. In the motor vehicle accident, the defendant, in his vehicle, whilst turning right and in a southerly direction from a school entrance onto Highclere Avenue Punchbowl in Sydney, collided with the front passenger side of the plaintiff's vehicle which was overtaking cars stopped in the left hand lane of the road parallel to the school. The extent of the plaintiff's physical injuries and continuing problems as a consequence of the accident is in dispute. The plaintiff also claims that she suffers from psychiatric injuries arising from the accident as a result of her physical injuries. The plaintiff has not reached the impairment threshold of greater than 10% which permits the award of damages for non-economic loss under s 131 of MACA.

3. The plaintiff's claim is for:

1. Past out-of-pocket expenses;

2. Future out-of-pocket expenses;

3. Past domestic assistance provided on a commercial basis;

4. Future commercial domestic assistance;

5. Past loss of earning capacity; and

6. Future loss of earning capacity.

The pleadings and related documents

4. The plaintiff commenced proceedings pursuant to a Statement of Claim filed on 21 November 2018. An Amended Statement of Claim was filed with leave on 20 September 2019. The Amended Statement of Claim pleads, in summary, as follows:

1. On 3 April 2017 at about 8:30am the plaintiff was driving her motor vehicle northbound on Highclere Avenue, Punchbowl;

2. As the plaintiff proceeded on Highclere Avenue, she overtook two stationary vehicles. When she attempted to return to the northbound lane her vehicle was struck by the defendant's vehicle which was exiting from St Charbel’s school via an entry driveway onto Highclere Avenue;

3. The defendant owed a duty to take reasonable care to the plaintiff and the collision was caused by the defendant’s breach of that duty of care;

4. The particulars of breach of duty of care include:

1. Failing to keep any or any proper lookout;

2. Attempting to enter Highclere Avenue without exercising due and proper care;

3. Failing to give way to the plaintiff’s vehicle;

4. Breaching the Road Rules 2014 (NSW) by breaching Rule 74 in that whilst entering the roadway from a road related area, failing to give way to the vehicle driven by the plaintiff;

5. Failing to stop, slow down or otherwise control the vehicle he was driving so as to avoid the collision;

6. Driving at a speed which was excessive in the circumstances;

7. The plaintiff claims injuries caused by the negligence of the defendant.

5. An Amended Statement of Particulars was filed on 11 March 2019 referring to the plaintiff injuring in the accident her neck, right shoulder and arm, right-sided rib, back, right hip, right knee and with psychological sequelae. Particulars of continuing disabilities include neck pain radiating into the right shoulder, neck stiffness and restriction in neck movement, right shoulder pain and stiffness, back pain radiating into the right hip and leg, back stiffness and restriction of movement and right knee tenderness. Reduced capacities are also particularised. The plaintiff's claim for various heads of damage is particularised.

6. In an Amended Defence filed on 6 August 2019, the defendant denies liability and pleads that when the plaintiff overtook the stationary vehicles she was travelling in the southbound lane on the incorrect side of the road. A duty of care is admitted but a breach is denied. A claim of contributory negligence is also made including allegations of:

1. Failure to take any or any adequate precautions for her own safety;

2. Failure to remain in her own lane;

3. Failure to keep a proper lookout;

4. Failure to keep her vehicle under proper control so that it did not travel on the incorrect side of the roadway;

5. Failure to observe the presence of the defendant's vehicle on the roadway;

6. Failure to adhere to road and traffic conditions and in particular to drive safely and remain on the correct side of the road in a school zone with increased traffic;

7. Failure to take evasive action to avoid a collision with the defendant's vehicle; and

8. Failure to comply with the Road Rules 2014 (NSW).

Documents tendered

7. There was a considerable amount of documentation tendered by the parties in the proceedings. The plaintiff also gave oral evidence and was cross-examined at some length by counsel for the defendant. The defendant also gave oral evidence.

Plaintiff’s prior medical history

8. In evidence as part of both Exhibit 1 and Exhibit A in the proceedings, was a substantial amount of documentation relating to the plaintiff's prior medical history including consultation notes from the plaintiff's general practitioner Dr Saeed. Some of these documents, including entries by Dr Saeed, formed the basis for the extensive cross-examination of the plaintiff concerning pre-accident complaints and injuries. Appellate authority indicates that some caution must be exercised by a trial judge in relying on what appears in medical notes for the reason given by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2] which has been followed in numerous later authorities. However, the plaintiff struck me as having very good English, being careful in her answers and ultimately did not dispute having problems with some parts of her body prior to the accident. She also did not dispute being allegedly assaulted on two occasions prior to the accident including once by her husband. The plaintiff continues to reside with her husband and her three children.

9. The medical records reveal the following relevant consultations or opinions prior to the accident:

1. 10 December 2014: Dr Saeed:

“Alleged assault few months ago by her husband.

Been in the hospital for one night vomiting blood and multiple bruises on face eyes head chest ribs and right loin.

Bruising buttock after fall.

Hit by fist from her husband

…

Still right loin pain.

Facial pain and rib pain right side”: Exhibit A page 260;

2. 15 December 2014: whole body scan: Dr Huynh: Bone injury to the plaintiff's sixth rib on the right. Increased uptake in the sacroiliac joint regions bilaterally: Exhibit A pages 272-273;

3. 16 December 2014: Dr Saeed: Dr Saeed explained the scan results to the plaintiff: Exhibit A page 260;

4. 20 December 2014: Dr Hazan: MRI of the lumbar spine and sacroiliac joints. Normal finding in relation to the MRI of the spine. The MRI of the sacroiliac joints was consistent with an element of sacroiliitis: Exhibit A page 276;

5. 30 December 2014: Dr Saeed:

“Checking MRI results.

Consistent with an element of sacroiliitis

… Results given/explained to patient sacroiliitis”: Exhibit A page 259. Mobic and Panadol Osteo prescribed;

6. 5 January 2015: Dr Saeed:

“Stressed-out social family issues need psychotherapy. Palpitations. Tight neck and chest. Headache. Tremor. Shaky … Memory and concentration problem … Tiredness fatigue … Sleeping disturbance lack of sleeping … Early morning wakening. Depressed mood. Low self-esteem…Insomnia – anxiety-related. Anxiety disorder”: Exhibit A pages 258-9;

7. 12 January 2015: Dr Saeed:

“Back pain.

MRI shows sacroiliitis

Asking for physiotherapy.”

Dr Saeed gave directions about analgesics and advised back exercise and limitations: Exhibit A page 258;

8. 17 February 2015: Ms Ivy Lau, chiropractor:

“Thank you for referring Ms Shaikh for her acute aggravation of her chronic low back pain for two to three months duration with pain referred down to her right leg. Mrs Shaikh complained of chronic history of LBP which worse at the end of the day. She felt pain is worse after carrying of her children and with repetitive bending … I am aware that Ms Shaikh suffers from bilateral sacroiliitis.”: Exhibit A page 337;

9. 4 March 2015: Dr Saeed:

“Back pain

Sacroiliitis

Asking for physiotherapy with another physio”.

Management was indicated as taking analgesics as directed with back exercises and limitations: Exhibit A page 257;

10. 7 March 2015: Dr Lopez, chiropractor: “Back: bilateral, restricted ROM, no crepitus, restriction present … Tender … Sacroiliitis”: Exhibit A pages 256-257;

11. 16 March 2015: Dr Saeed:

“Neck and chest pain

Not improving

Thoraci[c] back pain

Asking for CT spine

…

Back pain – thoracic”.

Management was analgesics as directed and back exercises with restrictions: Exhibit A page 256;

12. 25 March 2015: Dr Saeed: “Checking radiology results … results given/explained to patient degenerative disc disease”: Exhibit A page 256;

13. At pages 276 to 277 of Exhibit A is a report of a chest and right ribs x-ray and a CT of the thoracic spine by Dr Wong, with a clinical history of thoracic back pain and rib pain. No rib fracture or other significant abnormality was demonstrated on the chest and right ribs x-ray. In relation to the CT scan of the thoracic spine, the conclusion was degenerative change at the intervertebral joints at several levels;

14. 29 April 2015: report of Dr Almafragy, cardiologist and consultant physician. Dr Almafragy expressed the opinion that the plaintiff’s symptoms of palpitations with whole body shaking and chest pain were most likely due to “ongoing anxiety and her post-traumatic stress disorder. A cardiac cause is unlikely”: Exhibit A page 338;

15. 30 April 2015: Dr Saeed: “Asking for hydrotherapy … physio hydro … degenerative disc disease … continue same management”: Exhibit A page 254;

16. At page 274 of Exhibit A is a report relating to an MRI of the plaintiff’s thoracic spine which noted minor disc desiccation and minor facet degenerative changes;

17. 8 May 2015: Dr Saeed:

“Hit by her husband in left leg on Aug 2014.

Pain since that time and lumpy.

Also lump on the right lumbar area after hit to tap while punched by husband on Sep 2014 … left leg pain – calf”: Exhibit A page 254;

18. 20 May 2015: Dr Saeed: “Asking for chiro lady doctor … sacro iliac inflammation”: Exhibit A page 253;

19. 26 May 2015: Dr Saeed: “Lump in the right sacral area tender radiating pain to groin”: Exhibit A page 253;

20. 3 July 2015: Dr Saeed: “Thoracic back pain asking for MRI spine: Exhibit A page 252;

21. 7 January 2016: Dr Lopez, chiropractor:

“Bilateral shoulder pain

Bilateral back pain … Soft tissue massage shoulder … Mobilise shoulder joint … Shoulder stretches also give increase motion and stability”: Exhibit A pages 250-251;

22. 3 March 2016: Dr Lopez, chiropractor: “Bilateral back pain”. Back exercise was advised with also limitations on actions: Exhibit A pages 249-250;

23. 28 July 2016: Dr Lopez, chiropractor: “Back: tender, restriction present, restricted ROM.…Bilateral back pain”: Exhibit A pages 248-249;

24. 12 August 2016: Dr Saeed:

“Back pain getting worse

More with movement. Restricted movement. Backpain.

Asking for chiro …

Back: tender, not hot, not swollen, not red, no fracture, no abrasion, crepitus present, restriction present, tender twisting of back

…

Bilateral degenerative disc disease”.

Directions were given as to limitation of activities, analgesics and bedrest: Exhibit A page 248;

25. 19 August 2016: Dr Saeed: “Due to see specialist for chronic pain need referral … sacroiliitis.” Limitations were directed with exercise and analgesics: Exhibit A pages 247-248;

26. 17 March 2017: Dr Saeed: “Back pain asking for referral to physio … sacroiliitis.” Management was analgesics as directed with back exercise and restrictions: Exhibit A pages 246-247;

27. 29 March 2017: Ms Cancilla, physiotherapist: plaintiff complained of lower back injury (Exhibit A page 205). The purpose of the consultation was “management of right sciatica pain” (Exhibit A pages 207 and 211).

28. Thereafter, there were entries in Dr Saeed's notes in relation to consultations following the accident on 3 April 2017 with later entries relating to the plaintiff's complaints of pain. The entry for 3 April 2017, being the day of the accident, is as follows:

“MVA hit from passenger side today at 8:30am by another car.

No LOC but dizziness and shocked panicking.

Sudden movement and hitting the door of the car.

Seatbelt on and abdominal with shoulder pain.

Since accident right neck shoulder and arm pain.

Back pain both side.

Abdominal pain.

Will check bruising next time

Reason for contact:

Right neck pain with referred arm pain.

Bilateral backpain.

Abdominal pain.

Dizziness.

Management”.

10. Dr Saeed requested imaging. Later entries relate to the plaintiff continuing to complain about back pain with referred leg pain (6 April 2017), chest pain (28 April 2017), pain in the right ribs (8 May 2017), right neck pain with referred arm pain (2 June 2017), right neck pain with referred arm pain (6 June 2017), thoracic back pain (22 June 2017) and right knee pain (30 June 2017). There are numerous entries stating that there was no significant change in the findings of Dr Saeed on examination.

11. It may therefore be seen that on the evidence there were numerous complaints made by the plaintiff in relation to medical conditions, particularly in her lower back, prior to the accident.

The plaintiff’s other evidence

12. The plaintiff tendered numerous financial documents relating to the plaintiff's claim for past and future loss of earning capacity.

13. The plaintiff also tendered a number of photographs of the two vehicles at the accident site: see Exhibit A pages 23-26. The entry to St Charbel’s School, from which the defendant's vehicle came shortly before the accident, is also shown: Exhibit A page 27. It was not in issue that the plaintiff's car had airbags fitted and that these did not come into operation following the accident. The photographs of the cars show that the accident was not a particularly major accident and there was only moderate damage to the vehicles, although the plaintiff described the jolt involved in the accident as somewhat significant. This is a factor to be taken into account as the greater the force of the impact, the greater the likelihood that a plaintiff will suffer bodily injury, in particular significant bodily injury. However, the damage involved to the vehicles is not determinative of the plaintiff's injuries: El-Mohamad v Celenk [2017] NSWCA 242 at [16].

14. The plaintiff also relied on a number of medical reports.

Medical certificate of Dr Saeed

15. Annexed to the plaintiff’s Personal Injury Claim Form dated 7 July 2017 is a medical certificate dated 6 April 2017 from Dr Saeed. In the Personal Injury Claim Form the plaintiff claims injuries to her right shoulder, right arm, right ribs, middle back, right buttock/hip/thigh and psychological injuries. No injury is claimed to the plaintiff’s right knee (Exhibit A page 38). The diagnosis or description of injury by Dr Saeed appears to state: “neck pain radiating to both shoulders back pain radiating to right hip abdominal pain dizziness shock stress” (Exhibit A page 41).

Report of Dr Verma, occupational physician

16. The plaintiff relied on a report dated 10 June 2017 by Dr Naresh Verma, occupational physician. In the report, Dr Verma did not refer in the past history section to the plaintiff’s back and sacroiliac problems which have been set out above. The plaintiff complained of neck pain, right shoulder pain and mid and low back pain radiating to the right buttock and right knee with poor sleep and anxiety. The plaintiff indicated that her current medications were the “same as pre-MVA” including Panadol two tablets twice a day and Panadeine Forte when her pain was severe. The plaintiff’s occupational history, educational history and background were set out. Dr Verma’s diagnosis was:

1. Whiplash associated disorder with referred pain in right shoulder;

2. Mechanical thoracic and lumbosacral pain with referred pain in the right lower limb; and

3. Anxiety related symptoms.

17. Dr Verma expressed the opinion that the plaintiff had moderate intensity symptoms which may last up to “6 more months”. The plaintiff’s domestic duties difficulties were referred to.

18. In relation to the physical examination, tenderness and restrictions were noted in the cervical spine, thoracic spine and lumbosacral spine but a shoulder examination showed the range of movement was within normal limits bilaterally with nil impingement. The upper limbs showed mildly reduced power in the right shoulder and elbow muscles but with power elsewhere being within normal limits. A similar result was found in relation to the lower limbs although there was mildly reduced power in the right hip flexors and extensors. The hip examination showed a range of movement within normal limits bilaterally. A knee examination showed some tenderness just below the knee joint but with a full range of movement bilaterally. Certain limitations on the plaintiff’s lifting and manual handling capacity were noted as well as with pushing and pulling. Concern about the plaintiff’s return to work was noted as follows:

“She is partially unfit for such work as she would be unfit currently to look after very young children who require cleaning, changing and feeding necessitating significant physical effort. However she would be fit to care for older children who require low levels of supervision”.

19. There were also recommended restrictions to the plaintiff carrying her son for prolonged periods or on a repetitive basis, carrying heavy grocery bags and heavier household tasks. Likely future needs were set out relating to medical examinations, physiotherapy, medications and other reviews.

Dr Lee, psychiatrist

20. The plaintiff tendered a report of Dr Leonard Lee, psychiatrist, dated 25 September 2017. In a fairly short report, Dr Lee noted a history of the plaintiff having “no prior physical or psychological problems” (Exhibit A page 192). It was noted that from a psychological perspective, the plaintiff has become anxious in cars, particularly when cars are driving fast or she sees trucks and sometimes she has to pull over. It was noted that over time her anxiety in cars was improving but she occasionally experienced panic attacks. Dr Lee diagnosed an adjustment disorder with anxiety due to the accident. He described the plaintiff’s present condition as moderate and her functional capacity was reduced. A view was expressed that the plaintiff was too anxious and in too much pain to return to work. It was noted that assistance was provided by her husband. Continued treatment from a psychologist was recommended. The opinion was expressed that the plaintiff could perform less than 20 hours per week in a less stressful situation.

Report of Dr Sun, rehabilitation and pain physician

21. The plaintiff tendered a report of Dr Clive Sun, rehabilitation and pain physician dated 19 October 2017 following a consultation on 28 September 2017. The plaintiff's present complaints were noted including complaints of persistent neck, right sided upper back, chest, trunk, shoulder, arm, thigh and knee pain. It was noted that the plaintiff was independent in self-care but had difficulty with housework and had to pay a cleaner three hours per week. Again Dr Sun noted that there was no relevant medical or surgical history and in particular no pre-existing condition affecting the neck or right side of her body. Restrictions were noted in the plaintiff's cervical, thoracic and lumbar spine. Tenderness was noted over the trochanteric region and a right knee test was positive for pain and “crepitations”.

22. Dr Sun expressed the opinion that the clinical picture for the plaintiff was consistent with cervical spine soft tissue injury without radiculopathy, thoracic soft tissue injury, lumbar spine soft tissue injury, right chronic trochanteric bursitis and right knee soft tissue injury. Various treatment was recommended including a referral to a rehabilitation physician, analgesics, a supervised gym program and physiotherapy or massage. Dr Sun stated: “It is possible for her to continue to suffer neck, back, right hip and knee symptoms affecting her daily activities. She requires domestic, home maintenance and shopping assistance ($40 an hour) six hours a week, to be reviewed every 12 months.” Physical restrictions for the plaintiff were noted.

Referral of Dr Saeed dated 30 June 2017

23. There was a referral from Dr Saeed dated 30 June 2017 to a physiotherapist for assessment in the light of right knee pain complaints by the plaintiff.

Reports relating to the plaintiff's right knee

24. There was in the evidence a report from Dr Mbakada relating to an MRI of the plaintiff’s right knee. The report noted among other matters a small focal area of partial thickness chondral ulceration within the posterior aspect of the lateral femoral condyle associated with subchondral marrow reactive change and a degeneration of the posterior horn of the medial meniscus with traces of joint effusion but without meniscal tears (Exhibit A page 199).

Report of Dr Marsh

25. The plaintiff was referred for assessment to MAS Assessor Dr Nigel Marsh to determine whether the injuries caused by the accident resulted in a permanent impairment of greater than 10%. Dr Marsh assessed the plaintiff on 1 August 2018, several months after the other specialists had reviewed the plaintiff for medicolegal reports. His report and certificate were dated 2 August 2018.

26. Dr Marsh found musculoligamentous strains in the cervical spine, thoracic spine and lumbar spine, a resolved soft tissue injury to the right shoulder and soft tissue injuries to the plaintiff's right arm, right ribs and chest, right hip and right thigh. Dr Marsh found that the plaintiff's complaints in relation to the right knee were not connected to the accident. Again, it should be noted that Dr Marsh recorded that the claimant denied anything of relevance in her past medical history despite the extensive history of back pain and sacroiliac pain. Dr Marsh also noted that the plaintiff told him she was wearing a seatbelt and the airbags did not activate and an ambulance did not attend the scene of the accident. The plaintiff complained of pain in the areas indicated and stated that she took two Panadol Osteo tablets four times per day. She was waiting to see if she could get approval for physiotherapy.

27. Dr Marsh said that despite the plaintiff saying previously that her neck had settled, she said that she did have some slight pain there and that this often occurred. Dr Marsh noted the plaintiff's complaints in relation to the cervical spine, thoracic spine and lumbar spine on examination. He noted marked restriction in movement of the right shoulder but a full range of movement on the left shoulder.

28. He noted Dr Verma's report in which the plaintiff was stated to have a normal range of movement of both shoulders. He also noted the report by Dr Pierides, the defendant’s medicolegal expert, in which it was indicated that the plaintiff had a full and pain free range of movement of both shoulders.

29. Dr Marsh indicated that there was no evidence of any specific injury to the right greater trochanter leading to trochanteric bursitis. He concluded after examining the plaintiff's right knee that the soft tissue injury was not caused by the accident.

30. In relation to the cervical spine, Dr Marsh found some asymmetric loss of range but no clinical evidence of radiculopathy. In relation to the lumbar spine, Dr Marsh noted no asymmetric loss of range of movement and no guarding or muscle spasm and no clinical evidence of radiculopathy. He considered that pain into the right buttock and some of the pain into the lateral hip and thigh may represent referred pain from the lumbar spine. In relation to the plaintiff’s right shoulder, although Dr Marsh accepted there may have been some initial soft tissue injury, the evidence he saw indicated that the soft tissue injury had resolved. He refers to the reports of Dr Verma and Dr Pierides and says Dr Sun makes no particular mention of the right shoulder. Dr Marsh indicated that he was prepared to accept that there may be some radiation of pain into the right shoulder area but no persistent discrete injury.

31. Dr Marsh also noted that there was marked inconsistency in relation to the claimant's presentation in that in this assessment she had significant restriction in range of movement of the right shoulder whereas previous reports indicated a pain free range of movement. He expressed the opinion that a subsequent development of painful restriction in a range of movement after previous reports of full and pain free range of movement would not be consistent with any known pathology giving rise to any permanent impairment.

The plaintiff’s oral evidence

32. The plaintiff gave evidence that she was born in India in March 1981 and was 38 years old at the date of the final hearing. The plaintiff’s chronology, which she confirmed as being true and correct and which became Exhibit B in the proceedings, established that she migrated from India to Australia in 2007. The plaintiff gave evidence that she was married with three children aged between eight and two and a half years of age.

33. The plaintiff stated that she went to school in India, completed school and then completed a Diploma of Teaching, and became a schoolteacher in India, teaching students ranging from kindergarten students to secondary school students. After some time in Australia, the plaintiff completed a TAFE Certificate III in Education Support in 2012 part-time and then a Certificate III in Early Childhood Education and Care at a private college. The latter certificate was completed in October 2014.

34. The plaintiff gave evidence that in October 2014 she started to undertake home childcare work for Billan Family Day Care pursuant to an arrangement with that business. She said she started looking after two children. At various stages between October 2014 and May 2016 when she finished her childcare duties, she looked after up to four children ranging between four and two years of age. Care included feeding the children, changing their nappies and engaging in playtime as appropriate. The plaintiff said the duties, particularly nappy changing, involved bending and lifting. The plaintiff stated that she ceased doing the care work in May 2016 due to the pregnancy of her third child who was born in November 2016. The plaintiff stated that at the time of the accident on 3 April 2017, she intended to return to work by starting work again in childcare when her youngest child was six months old in mid-2017 and continuing with home day care duties until her youngest child started school. Thereafter, the plaintiff said that she would seek full-time work in childcare with the hope of studying teaching so that she could qualify to teach in Australia. Her Indian qualifications were apparently not recognised in Australia.

35. In relation to her prior medical history, the plaintiff referred to an alleged assault prior to the accident upon her by a neighbour and also an alleged assault upon her by her husband. She said she still was with her husband but had some psychological problems at this time. Prior to the accident, the plaintiff admitted to problems with her back but said she had no problems with her neck, right arm, right side, right leg, right knee or her shoulders.

36. The plaintiff gave evidence in relation to the accident. She said that on 3 April 2017 at 8:30am she was proceeding down Highclere Avenue in Punchbowl leading to Wattle Street. She said Highclere Avenue had one lane each way. On the left down Highclere Avenue was St Charbel’s College. The plaintiff said that as at 3 April 2017 she had travelled along this road quite a few times as she drove her son to a school further away. She said she had been driving her son to school for more than six months and she always drove on the same route down Highclere Avenue. She said it was drizzling at the time of the accident.

37. Near St Charbel’s College the plaintiff said that she saw that cars had queued up and she waited in the queue. The cars were dropping off their children at St Charbel’s College. After waiting some time, the plaintiff said that she looked to her right and saw that there were no cars coming towards her in the other lane. She then put her right indicator on and slowly moved out to pass the queueing cars and then return to the left lane once she had passed them. She said the entirety of her car was in the other lane and there were no line markings in the middle of the road. The plaintiff said that when she pulled out into the right hand lane she noticed that there were two cars queued but she could not determine the number of cars queued until she pulled out.

38. The plaintiff then said there was a collision with another car which was coming out of a driveway to St Charbel’s College and was turning right. She said she first saw the car coming out of the driveway when she was about four to five metres away from it and travelling at about 20kph. The plaintiff stated that she applied her brakes but despite this she had the collision. She said she had a seatbelt on at the time and following the collision she felt a jolt to her body. She said she was shaken and scared but was able to get out of the car. She said she rang her husband and the police attended the scene. She said her car was towed away and was repaired at a cost of about $5,000.

39. The plaintiff gave evidence that later in the day she noticed pains in her stomach and on the right side between the beltline and her underarm. She also noticed pains at the top of her right arm near the shoulder. The plaintiff said that she went to see Dr Saeed her general practitioner on the day of the accident complaining of pain to the right side and her right leg. She said Dr Saeed prescribed painkillers and referred her for an x-ray. She said she had remained a patient with Dr Saeed since the accident. The plaintiff said that Dr Saeed referred her to a physiotherapist and she had four or five physiotherapy consultations. The physiotherapy treatment was to her right leg and right arm and she found it of benefit.

40. After the accident, the plaintiff said that she had noticed changes in her emotions and that she was scared of driving. She did not have this prior to the accident. Although she stated that she does not drive now, she said she has driven since the accident. The plaintiff said that her current symptoms were pain in the right knee, the top of her right arm near the shoulder and her right hip on the back side: T48.6. She said she had not experienced the pain in the right corner of her back at the hip prior to the accident: T48.15. The plaintiff stated that in the last six months Dr Saeed had seen her five or six times and he had prescribed physiotherapy and the painkiller Mobic. She said she took Mobic once or twice a week and that a packet which cost $6.00 lasted her a month. She also said that she took Panadol Osteo almost every day six times and a packet of that medication which could be purchased over the counter cost her $6.00 and lasted slightly less than a month.

41. The plaintiff said Dr Saeed referred her to a surgeon, Dr Cahill, but she did not go as she had to pay for this.

42. The plaintiff gave evidence that she lived with her three children and her husband in the same unit as she was living in at the time of the accident. She said she lived on the second floor of the block and the unit had two bedrooms and two bathrooms with a kitchen, living area and laundry. The plaintiff stated that her husband was an accountant and had his own business.

43. The plaintiff gave evidence that prior to the accident she prepared meals without the assistance of her husband, undertook three to four loads of laundry per week using a combination of a line and a dryer, cleaned and vacuumed the floors, cleaned the toilets, changed the bed linen and undertook grocery shopping: T50-51. She usually did one large grocery shop per week which took at least three hours and made two to three smaller shopping expeditions per week that took about half an hour each.

44. The plaintiff gave evidence that shortly after the accident, being the next week after the accident, she obtained the assistance of a person with housework due to her injuries: T52.20-.27. This person assisted with cleaning including the kitchen, vacuuming, mopping, helping with the clothes and changing the bed sheets. The domestic assistance was provided every week for between two and three hours and cost the plaintiff $15 per hour: T53.11. The plaintiff said she did not have receipts for these payments. The plaintiff stated that the assistance ceased at the beginning of 2018 when she could no longer afford it: T53.33. The plaintiff said that if there had not been the accident she would not have obtained the assistance and she would seek the assistance in the future if she had the money to pay it as it helped with her “condition” T53.37. The plaintiff gave evidence that since the accident she and her husband had completed the domestic duties at home together: T53.50.

45. On the second day of the trial, the plaintiff was taken to an aide memoir being a listing of out-of-pocket expenses which was at page 166 of Exhibit A but not part of the tender. In relation to Item 3, the accounts claimed for Dr Saeed, the plaintiff confirmed that Dr Saeed was her general practitioner and she saw him in relation to her accident injuries. In relation to Item 4 of the schedule relating to invoices from Medilink Counselling, the plaintiff confirmed that she saw Ms Mohina, a psychologist, with a referral from Dr Saeed: see Exhibit A page 174. The plaintiff said that she saw Ms Mohina in relation to problems arising from the accident.

46. The plaintiff was asked further questions in relation to the domestic duties assistance which she obtained from a person called Nida. The plaintiff stated that she was unable to change the bed linen after the accident because she could not lift her right hand. In relation to vacuuming and mopping, the plaintiff similarly said she could not undertake the tasks as she needed her right hand to move the equipment and she had a painful problem with her hand. Prior to the accident, the plaintiff said she undertook these tasks.

47. The plaintiff gave evidence in relation to the payments she had received from Billan Family Day Care as lodged in her Commonwealth Bank account and also the tax returns which she had lodged and the notices of assessment which she had received from the Australian Taxation Office. The plaintiff confirmed that her net income for the financial year ending 30 June 2016 from Billan after expenses was $12,341: Exhibit 1 page 123. The plaintiff gave evidence that she intended to return to work when her youngest child reached six months of age but said she did not do so as it was painful for her and it was not easy for her to lift. She said that if it had not been for the accident she would have returned to work at this time. She said she had still not returned to work at Billan because of problems with her right arm. When asked by the court how the plaintiff was able with her injuries to look after her own children particularly her youngest child who was less than three years old, the plaintiff said that her husband helped her: T66.4. It should be noted that at all times the plaintiff was in court her youngest child remained with her including whilst giving evidence in the witness box.

48. The plaintiff was asked questions about her consultation with Dr Pierides on 10 October 2017. Dr Pierides sets out in his report as follows:

“She manages to perform her household duties … She looks after her 3 children and performs her household duties … Her activities of daily living have not been affected because of injuries sustained in the subject accident … For the first four weeks post subject accident, if she was solely responsible for the household duties, she may have required two hours of assistance per week for the first two weeks, and one hour of assistance per week for the following two weeks.”

49. The plaintiff said that she did not recall what Dr Pierides asked her in the consultation in October 2017 or what she said to him. However, the plaintiff confirmed that she told Dr Pierides the truth. It is noted that the plaintiff gave evidence that she ceased receiving assistance from Nida, the person providing household assistance, at the beginning of 2018: T53.30.

50. The plaintiff was subject to a lengthy cross-examination from counsel for the defendant.

51. The plaintiff gave evidence that she saw Dr Saeed, her general practitioner, on the day of the accident and went to see a lawyer on the advice of her husband about a week after the accident. The plaintiff said she went to her current solicitors who advised her to bring a claim and they filled out a claim form for her and advised her in relation to each question. The plaintiff said that she retained her cleaner at about this time and soon after seeing her solicitor. The plaintiff said that the cleaner Nida never issued receipts and was paid in cash and said that she only worked for cash in hand. She said her husband paid for the cleaner.

52. The plaintiff was taken to her Motor Accident Personal Injury Claim Form (Exhibit A page 31) and she confirmed that her signature appears on the form. The plaintiff denied that her answer to question 15 in the form was misleading as it did not refer to her overtaking on the wrong side of the road. The plaintiff confirmed that she had driven down the road many times before the accident and since the accident. She said that she did not drive any more but she had been in the car with her husband many times down the road. She said she had driven down the road once or twice by herself after the accident in an emergency situation but she did not recall the number of times precisely.

53. The plaintiff confirmed that on the left of Highclere Road travelling north was St Charbel’s school and she had seen parents dropping off children there and driving in and out of the entrance. She said it was not surprising to see people come out of the entrance and turn. The plaintiff confirmed that at the time of the accident, children were being dropped off. She could not recall seeing on a number of occasions where persons came out of St Charbel’s College. The plaintiff agreed that she had seen, where there was a line of traffic near the school, cars allowing people coming out of St Charbel’s to go through the line of traffic. The plaintiff was asked how the defendant's car came out of the entrance and she said that it happened very quickly and the car came out quickly. The plaintiff said that she was travelling at around 20kph when she was overtaking the line of traffic.

49. The plaintiff was taken to page 8 of the claim form (Exhibit A page 38) where she listed her injuries arising from the accident. Whilst the plaintiff agreed that the form was filled out with the assistance of a solicitor, she said the list of injuries and the places injured were her statements. The plaintiff was then taken to question 24 in the claim form which was as follows: “Have you had any other injuries or illnesses, before or after the accident, to the same or similar part(s) of your body?” The plaintiff put a cross in the box for yes and in answer to the request to give details “including approximate date” she inserted “some counselling in 2014”. It was put to the plaintiff that she had had injuries prior to the accident to the same or similar parts of her body. The plaintiff said this was why she crossed the box “yes”. When it was put to her that she only mentioned counselling, the plaintiff said she was also injured in 2014 but did not put all the details as she had mentioned the incident.

50. Initially, in answer to the question as to whether she had any injury to her back and ribs prior to the accident, the plaintiff said she had an injury to her ribs and pain to her back in pregnancy. She denied pain in the back prior to pregnancy. This is contrary to a number of entries in the plaintiff's general practitioner’s notes. When it was put to the plaintiff that her answer was not correct, the plaintiff said she was not sure of the information to include in the claim form.

51. It was put to the plaintiff that she had pain in her middle back for years prior to the accident. The plaintiff denied this and said she only had pain in the lower back. The plaintiff further denied that the information as to other injuries or illnesses before the accident was incorrect.

52. There then occurred a lengthy cross-examination of the plaintiff in relation to her injuries and physical problems prior to the accident based on the medical consultation and other records of the plaintiff's general practitioner Dr Saeed. I have already set out above the extracts from the records that refer to the plaintiff's injuries or complaints prior to the accident.

53. The plaintiff agreed that on 10 December 2014 she saw Dr Saeed, following an alleged assault from her husband a few months previously, complaining of right loin pain, facial pain and rib pain on the right side. The plaintiff also said she hurt her lower back. However, the plaintiff said that the injury on her right back was a small bruise following falling on her buttock. She said her face and right ribs were the most painful (Exhibit 1 page 163). The plaintiff was taken to the entry for 16 December 2014 where the results of radiology were explained to her by Dr Saeed suggesting a right rib bony injury (Exhibit 1 page 162). The plaintiff said that she injured the front of her ribs not the side of the ribs on the right as in the accident. While she confirmed that there was no mention of injuries to the right ribs in the Personal Injury Claim Form, she said she did mention the counselling in 2014. The plaintiff agreed that she knew she was injured to her right side prior to the accident. It is noted that at T39.20 the plaintiff said she had not experienced problems with her right side prior to the accident. The plaintiff agreed that in the Personal Injury Claim Form she never gave any indication of injury to her right ribs prior to the accident: T92.8.

54. The plaintiff agreed that she had psychological problems prior to the accident including difficulty sleeping, anxiety, requiring counselling, some memory problems, difficulties with concentration, tiredness and waking up early. The plaintiff was taken to her consultation with Dr Saeed on 12 January 2015 and agreed that she had back pain including to the lower back and that an MRI had occurred (Exhibit 1 page 160). The plaintiff agreed that she was advised to undertake no lifting or bending and accepted that she had some problems with lifting or bending prior to the accident, although these were not major problems. She said the recommendations from Dr Saeed were in order not to make her problems worse. She stated that Dr Saeed told her to avoid lifting or bending but she said she could do it. The plaintiff denied asking Dr Saeed to refer her to physiotherapy and said that the doctor referred her after giving advice as to physiotherapy. In relation to the entry for 4 March 2015, the plaintiff confirmed that she was asking for a referral to another physiotherapist. She said that the old physiotherapist had been assisting her with her back problems but only with the lower back. The plaintiff could not recall the precise date when the physiotherapy assistance had commenced.

55. The plaintiff was also asked a number of questions in relation to the consultation notes of consultations with Dr Dennis Lopez, apparently a chiropractor in the general practice of Dr Saeed. The plaintiff confirmed that she had seen Dr Lopez on a number of occasions. Despite entries suggesting a restricted range of movement in the back on both sides and a reference to sacroiliitis (Exhibit 1 page 159), the plaintiff claimed that she had back pain in the lower back only. In relation to instructions to avoid lifting or bending, the plaintiff said she avoided lifting and bending but did not comply with the instructions completely. In the light of the entries for 16 March 2015 (Exhibit 1 page 159), the plaintiff agreed that she had neck and chest pain and problems in her middle back. On further questioning she claimed that the limitations were in her lower back only and there was no pain in the middle back. Despite the plaintiff's evidence, Dr Saeed ordered a CT scan of the thoracic spine which has been mentioned earlier in this judgment. The plaintiff conceded that Dr Saeed may have found problems with her middle back. After further questioning, the plaintiff conceded that she had some middle back pain and had complained about it but said it was not an ongoing pain like the pain in her lower back: T96.26-T101.6.

56. The plaintiff agreed that she had been prescribed Mobic prior to the accident but could not recall how long before the accident. The plaintiff also conceded that in the alleged assault from her husband she had been struck in the lower back which created a lump which was painful for a considerable period of time (8 May 2015 entry, Exhibit 1 page 156).

57. The plaintiff was asked about a consultation on 7 January 2016 with Dr Lopez, chiropractor. She agreed that she complained of pain in the back on both sides and shoulder pain on both sides: T111.9. When the plaintiff was reminded of the answers that she had given to the court about not having pain prior to the accident in either shoulder at T39.45-.49, the plaintiff said the problem was not a long term one but accepted that her answer was incorrect: T111.45.

58. The plaintiff was taken to a consultation with Dr Saeed of 12 August 2016 (Exhibit 1 pages 150-151). The plaintiff confirmed that she told Dr Saeed that her back pain was getting worse, that the pain became worse with movement and that she had restricted movement. She also agreed that she was asking for a referral to a chiropractor. The plaintiff agreed that she was instructed by Dr Saeed not to engage in any heavy lifting, no long standing and to take bedrest with analgesic. Other limitations were also advised.

59. On 19 August 2016 the plaintiff agreed that she went to see Dr Saeed for a referral to a pain specialist for chronic pain and that Dr Saeed had given her a letter of referral to Dr Namuk Alkhateeb (Exhibit 1 page 150). The plaintiff said that she did not go to see Dr Alkhateeb as her husband could not afford to pay for the consultation. She accepted that Dr Saeed advised her that she needed pain management for her condition.

60. The plaintiff gave evidence that in the period shortly before the accident she was feeling well but had a few pains “here and there, after delivery”: T120.11. She denied asking for a referral to a physiotherapist but may have complained about the pain and Dr Saeed recommended her seeing a physiotherapist. The plaintiff confirmed a consultation with Dr Saeed on 17 March 2017 (Exhibit 1 page 149) about two weeks before the accident, in which she was complaining about back pain and in which she was referred to a physiotherapist. At that time the plaintiff confirmed that she was taking Panadol Osteo for pain relief “very often” (T121.28) but was not sure whether she was taking Mobic. She accepted that Panadeine Forte was also prescribed for her at this time but she said she was not taking it as it made her drowsy: T121.19.

61. It should be noted that the records tendered establish that the plaintiff did see a physiotherapist, Ms Cancilla, on 29 March 2017 complaining of pain to the lower back including with right sciatica (see Exhibit A pages 204-205 and 211, the date on this document appears to be in error and it should be 29 March 2017). The referral from Dr Saeed is at Exhibit A page 212.

62. The plaintiff confirmed that she saw Dr Saeed on the day of the accident. She also confirmed that she obtained a motor accident Personal Injury Claim Form from her solicitors and attended Dr Saeed for the purposes of obtaining a medical certificate (see Exhibit A page 41). This was on 6 April 2017, three days after the accident (see also Exhibit 1 page 148 for the consultation notes).

63. At the commencement of the third day of the hearing, the plaintiff informed the court that she had neglected in her evidence to state that during her pregnancy in 2016 she had had a number of problems including problems with her back: T131.38. The plaintiff said this was the reason why the doctor advised her to limit lifting and bending and to obtain on one occasion bed rest.

64. The plaintiff was asked questions about ceasing her work for Billan Family Day Care when she became pregnant in May 2016. The plaintiff stated that hers was a high risk pregnancy and she needed a lot of rest. The plaintiff said that she could not look after children and at this stage was looking after two children. The plaintiff conceded at this time that she had two of her own children that she was looking after.

65. It was put to the plaintiff that soon after the collision occurred on the day of the accident, she had a conversation with the defendant in which he asked her why she was driving on the wrong side of the road and she said that she always drove on the wrong side of the road as there was lots of traffic near the site of the collision. The plaintiff denied that she said she always drove on the wrong side of the road and said she was shocked after the collision and did not precisely recall the conversation she had with the defendant. She accepted that she drove along the road almost every day but did not recall the frequency of any overtaking by her and said that it depended on the traffic. She said she would overtake if it was safe to do so. She also stated that it was safe to overtake here at 20kph and that the defendant came out of the driveway very quickly.

66. Initially the plaintiff gave evidence that after applying her brakes she came to a full stop before the collision. When asked to confirm this again the plaintiff said that she did not remember precisely: T140.17-T141.22.

67. The plaintiff was then shown a CCTV film which became Exhibit 5 in the proceedings. The collision is recorded in the top right hand part of the picture. While caution must always be exercised in assessing video evidence (see Argo Managing Agency Ltd v Kammessy [2018] NSWCA 176 at [54]-[55]), the film in the present case is of some use. It appears to me from the film that the defendant emerged from the school entry (not exit) reasonably slowly and the plaintiff appeared to be travelling reasonably quickly in the other lane while she was attempting the overtaking procedure. The film was also of assistance because the court had in Exhibit A and Exhibit 1 photographs of the collision scene and its surroundings. The court also had detailed evidence from the defendant. Accordingly, the court had more information and a better perspective of the collision locality. The film also shows that there were no cars parked on the roadside near the collision and the traffic was proceeding very slowly along the street.

68. The plaintiff was then asked questions about the consultations with the medicolegal witnesses. In relation to Dr Verma (Exhibit A page 182) the report lists the plaintiff's past medical/surgical/injury/psychiatric history as follows:

“▪  Caesarean section twice: 4 years ago and 6 months ago.

▪  She was seen by a counsellor for personal stressor management in 2014. She did not need antidepressants and symptoms settled” (Exhibit A page 183).

74. It was put to the plaintiff that she did not tell Dr Verma about her past medical history as recorded in the consultation notes in relation to which she was cross-examined. The plaintiff confirmed that she did not mention her assault as she did not like talking about it. She did not recall what she told Dr Verma.

75. Exhibit 6 tendered by the defendant in the proceedings is the letter of instructions to Dr Verma from the plaintiff's solicitors dated 5 June 2017. This lists as “Nil” pre-existing conditions/health issues and prior injuries relating to the plaintiff.

76. The plaintiff was then taken to the report of Dr Lee (Exhibit A page 192). In the report, Dr Leonard Lee under the heading “History Obtained” states the following:

“4. Ms Shaikh had no prior physical or psychological problems. She ran a family day care centre from home until May 2016, when she fell pregnant.”

77. When it was put to the plaintiff that that was what she told Dr Lee, the plaintiff said that she must have told him of her past health problems during her pregnancy and could not understand why they were not mentioned there by Dr Lee.

78. The plaintiff was then taken to the report of Dr Sun (Exhibit A page 195). Under the heading “Past History” Dr Sun states: “There was no relevant medical or surgical history in particular no pre-existing condition or previous trauma affecting the neck or right side of her body.” When it was put to the plaintiff that that was what she told Dr Sun the plaintiff said that she must have mentioned to him about her pregnancy.

79. The plaintiff was taken to the report of Dr Pierides stated 11 October 2017 (Exhibit 1 page 1). On page 3 of that report under the heading “Medical History” Dr Pierides states: “Apart from the issues with getting pregnant, she has been well. She is not taking any medications for any non-subject accident related medical condition. She had caesareans to deliver her children.” The plaintiff said she did not remember much about what she told Dr Pierides.

80. The plaintiff was taken to the report of Dr Marsh (Exhibit 1 page 13).

81. Under the heading “History as Given by the Injured Person” Dr Marsh stated: “The claimant denied anything of relevance in her past medical history.” When it was put to the plaintiff that was what she told Dr Marsh she said that she told all of the doctors her problems during her pregnancy. When it was asked whether the plaintiff was saying that all the doctors got her history wrong, the plaintiff said that some of them mentioned her pregnancy and some of them mentioned psychological problems and others did not. When it was stated to the plaintiff that she mentioned none of the health problems as recorded in Dr Saeed’s notes she asserted that most related to her pregnancy. It was put to the plaintiff that most of her complaints did not relate to her pregnancy as recorded in Dr Saeed’s notes and the plaintiff said she would need to check the dates.

82. The defendant also tendered the letters of instructions to Dr Sun and Dr Lee which became Exhibits 7 and 8 in the proceedings. Both letters instructed the doctors that the plaintiff had no pre-existing conditions or health issues or prior injuries.

83. The plaintiff denied that there was nothing wrong with her now relating to the accident. She also denied that she could undertake childcare duties now. When it was put to the plaintiff that she did not exhibit any apparent difficulties looking after her small child who was present in court, the plaintiff said that she did have problems including difficulties pushing the pram but she simply did not refer to them.

84. The defendant tendered as Exhibit 4 in the proceedings two photos taken near the accident site. These showed double lines some distance further south from the accident site. The plaintiff said that she overtook after the lines: T156.40.

85. In re-examination, the plaintiff was taken to T79.45 where she agreed with the proposition that the accident occurred near St Charbel’s School where parents “drive in and come out”. The plaintiff was taken to the photograph at Exhibit A page 27 and confirmed that the markings shown on the photograph were there at the time of the collision.

86. The plaintiff was taken to T110.3 and Exhibit 2 relating to the plaintiff's receipt of earnings from the Billan Family Day Care. The plaintiff said that this was clearly an error from Centrelink. She said her earnings were not from Billan but she had her own ABN number and it was subcontracted to “Amin’s Childminding”: T161.6. She also said she disclosed all her relevant earnings to the Australian Taxation Office in the tax returns which she lodged.

87. Overall, and in general terms, the plaintiff struck me as a fairly honest witness who was doing her best to answer truthfully the questions put to her. On occasions, she was somewhat diverted by the fact that her small son of less than three years was with her in the witness box. Some of the areas of cross-examination touched sensitive issues relating to the alleged assault by her husband. The plaintiff was upset during these questions. I have taken that into account.

88. I am satisfied from the letters of instruction to the medico-legal experts and the limited prior medical history shown in the reports, that the plaintiff did not disclose her prior medical history to the doctors. She also did not disclose her prior medical history in the Personal Injury Claim Form. The plaintiff asserted in her oral evidence that most of the problems related to her pregnancy in 2016. However, many complaints relating to problems, in particular the plaintiff’s back and right sciatica, occurred at times when she was not pregnant based on her evidence about the date of birth of her third child and the evidence in the proceedings about the dates of birth of her first two children. These omissions of the plaintiff are relevant to her credit and can only reasonably be explained by the plaintiff not wanting to reveal her full medical history to the doctors.

89. I also formed the view that the plaintiff did not have a good recollection as to what she told various doctors and the conversations at the time of the accident. In relation to these matters, the contemporaneous documents, including the medical records and the signed statement of interview given by her must, in my view, be given considerably greater weight. Accordingly, I exercise some caution in relation to aspects of the plaintiff's evidence while finding in general terms and in most situations that she was an honest witness who was doing her best to answer questions put to her.

The evidence for the defendant

90. The defendant tendered in his bundle which became Exhibit 1 in the proceedings a large number of documents including police documents relating to the collision, photographs of the vehicles after the collision, extracts from the Billan Family Day Care Centre for whom the plaintiff did work, financial documents relating to the plaintiff and, similarly to the plaintiff, extracts from the plaintiff's general practitioner notes.

The photographs and the CCTV film

91. The photographs included as part of Exhibit 1 are similar to those in the plaintiff's bundle. The photographs show an unbroken white line on each side of Highclere Avenue where cars are parked on the side of the road. In the middle of the road there do not appear to be any road markings at the accident site. Between the two unbroken white lines there is sufficient room for two lanes one going north and one going south. One photograph (page 35) shows the entrance to St Charbel’s College from which the defendant's car exited. The photographs support the evidence of the parties that the plaintiff's car was in the easterly lane on the other side of the road at the time of the accident. The CCTV film is significant and is discussed further below. It shows the defendant exiting the side entrance in his vehicle in a continuous movement without stopping or slowing in the centre of the road and edging out slowly.

Extracts of Billan Family Day Care Centre documents

92. Exhibit 1 includes a number of Billan Family Day Care Centre documents. The documents record the plaintiff's personal details and certificates of attainment including a Certificate III in Children's Services said to have been completed on 3 October 2014. One document shows the hours of availability of the plaintiff during the week as being between Monday to Saturday. The plaintiff does not indicate any age preferences for children to be cared for. The form was clearly completed when the plaintiff initially commenced her caring duties as only her first two children are referred to. At page 69 of Exhibit 1 there is a list of “children in care” which only refers to two children born in 2010 and 2011. It is noted that the address of these children is the unit next door to the plaintiff. Copies of the plaintiff’s various certificates are included in the documents. There are also documents such as a home safety checklist and reviews in 2014 relating to home visits from the Family Day Care Centre to the plaintiff's house.

Police documents

93. Included in Exhibit 1 are various extracts from New South Wales Police documents.

94. These documents confirm that the accident happened at 8:30am on 3 April 2017 in Highclere Avenue. The weather was noted as overcast with the road surface being wet. There are various summaries of the accident in the police records. Some are consistent with the evidence of the plaintiff (Exhibit 1 pages 28 to 29). However, the photographs in evidence do not show any “marked double line” as referred to. A limiting order was made in relation to this aspect of the summary in the police documents at various places.

95. Also in evidence were signed statements from the plaintiff and the defendant taken by Constable Huo from the police force.

96. The plaintiff’s signed statement included the following:

“Q: What happened?

A: I was driving on Highclere Avenue towards Wattle Street. The cars were queued up in front of St Charbel’s College. They were slowly moving further for drop off. I had to go further down. I overtook the car in front of my [sic] by travelling on the right hand side of the road which was clear. When I got to the entrance of the College, a white [sic] was coming out of the drive from my left. I applied brakes. In fraction of second, the white 4WD collided with left panel corner of my car. We got off the car. The police came assisted us to exchange details. On the same day around 3pm I went to the GP, who prescribed me with Panadeine Forte and Panadol. On 6/4/17, I went back to the same GP. I was diagnosed with pain to my arm (right), right hip, stomach pain.

…

Q: Weather?

A: Drizzling.

Q: Traffic?

A: Along side of the road was queued up and right side was clear.

Q: Any obstruction to view before the collision?

A: No. The right lane was clear. I was just slowly overtake.

Q: Were you stop immediately before the impact?

A: Yes.

…

Q: When you overtake how many cars were there in the queue?

A: No. I don't remember how many cars and the distance of the queue.”

97. The latter part of the statement is different to the plaintiff's oral evidence. The plaintiff said that when she overtook there were two cars in the queue but she could not see the number of cars in the queue when she was stopped immediately behind the queue before overtaking.

98. The statement signed by the defendant included the following:

“Q: What happened?

A: I was parked on the side of the road. I reversed into a driveway opposite 125 Highclere Avenue. I got my vehicle forward on the driveway. Traffic on both left and right were stationary. I looked to my left, no cars coming. I looked to my right a whole line of cars banked up. I proceeded to turn of the driveway as the vehicles had stop to let me through. As I proceeded to turn right onto the road a white Toyota Prius collided with me from the wrong side of the road. We left our car and exchanged details.

Q: When did you notice the white Prius?

A: When she hit me. She was doing more than 40kph.

Q: How long did you wait before you turn right onto Highclere Avenue?

A: 15 seconds.

Q: Speed?

A: 5kph.

Q: Any obstruction to you view?

A: No.

…

Q: Weather like?

A: A bit wet.

Q: Traffic conditions?

A: School time, slow traffic.

Q: Anything else?

A: No, she was driving on the wrong side of the road and doing more than 40kph.

…

Q: Am I correct to say that you were coming out of the driveway of the school?

A: Yes.”

99. The police expressed the opinion that both versions were consistent with each other. The following was then stated:

“Police is of the opinion that both drivers have contributed to the collision. However the D1 is responsible as she has crossed the double line to overtake vehicles and travelled on the wrong side of the road. Due the D1 was the one who sustain injury, no further police action will be taken against her.”

100. Again, as stated above, the photographs in Exhibit 1 do not show any double line in the middle of the road which was clearly crossed by the plaintiff. See also at Exhibit 1 page 56.

Oral evidence for the defendant

101. The defendant, Mr Elias Risk, gave oral evidence in the proceedings.

102. Mr Risk said he was involved in the accident on 3 April 2017. He said it was near school time at about 8:20am and he had dropped off his three children at St Charbel’s College. After dropping the children off, he reversed his vehicle into an entrance of St Charbel’s College in order to do a U-turn and proceed to the right to go in a southerly direction down Highclere Avenue. Mr Risk said that as he was coming out of the entrance to turn right, the driver of the car to his right, who was in a white Toyota Tarago, waved to him using her hand to direct him to go through. Mr Risk said he checked to his left and to his right and then proceeded to turn to his right. He said there was a car coming to the north on the other side of the road and collided with his vehicle. He said his vehicle moved in the collision.

103. Mr Risk said that the plaintiff got out of her car and he asked her why she was driving on the wrong side of the road. She said words to the effect, according to Mr Risk, that the road was busy and she had always done it. Mr Risk said that he asked the plaintiff why she did not take another route if it was busy and she said that she did not know. Mr Risk gave evidence that he had seen her since, including driving on the other side of the road overtaking on five or six occasions.

104. In cross-examination Mr Risk confirmed that he had been sitting in court listening to the proceedings for three days. He also confirmed that he had seen the CCTV film shortly after the accident.

105. Mr Risk confirmed to counsel for the plaintiff that the weather was “a bit drizzly” at the time. He agreed that a driver driving near a primary school had to take extra special care in relation to pedestrians and motor vehicles and the fact it was raining added to the attention which a driver reasonably had to exercise in the circumstances.

106. Mr Risk confirmed that he had seen the police a few days after the accident and had provided them with a statement in which he had told the truth. He confirmed that he did not see the plaintiff's car until the moment of impact. It was put to Mr Risk that he did not look to the right before he proceeded to turn right shortly before the accident, which he denied. Mr Risk said he looked both ways before he entered into the lane being the lane into which he was turning right. When he was asked whether when he reached the centre of the road he then looked to the left and the right, the defendant confirmed that he did. He denied the suggestion that he did not.

107. Mr Risk said that he had been driving his children to the school at the time of the accident for a number of years and was familiar with the area. He was shown a photograph which was Exhibit 4 in the proceedings and confirmed that the arrow indicated in the photograph was there at the time of the accident and it was the entrance into which he had backed. He confirmed that it was an entry driveway for the school and was so at the time of the accident.

108. Mr Risk confirmed that at no time could he see the plaintiff's vehicle coming from the right. He also denied that he could have seen the plaintiff's vehicle if he had looked to the right. He said he looked to the right before he turned right and did not see the plaintiff's vehicle. He said he first saw the plaintiff's car when her vehicle collided with his vehicle. Mr Risk denied that if he had stopped in the middle of the road and looked that he would have seen the plaintiff's vehicle.

109. When it was put to Mr Risk that the white Tarago provided an obstacle to seeing the plaintiff's vehicle, he said it depended how far the plaintiff's vehicle was behind the Tarago at the time he looked. He confirmed that the Tarago was a large white vehicle and would prevent some other people from seeing him in his car.

110. Mr Risk confirmed that the motion of his vehicle in continuing from the entrance was a continuous movement and he did not stop. He also confirmed that if he had seen the plaintiff's vehicle that he could have stopped. When it was put to Mr Risk that if he had stopped in the middle of the road that he would have seen the plaintiff and a collision would have been avoided, Mr Risk said that he would not have been able to see the plaintiff and that he had to proceed in his vehicle beyond the centre of the road to see down the road to his right. However, Mr Risk agreed that if the front of the plaintiff's vehicle had been level with the driver of the Tarago that he would have been able to see it.

111. Despite the film showing that the defendant exited from the entrance in one continuous movement and that he appeared to accelerate, Mr Risk said his recollection was that he did stop, but he could not recall where. He accepted that he did not stop in the centre of the road and that he proceeded to accelerate after moving through the centre of the road. Mr Risk agreed after some cross-examination that if the front of the plaintiff's car had been level with the driver of the Tarago and he had stopped in the centre of the road and looked to the right he would have been able to see the plaintiff's car.

112. It was put to Mr Risk that the driver of the Tarago did not waive him through. Mr Risk said that this is what he meant in his police statement by “the vehicle stopped to let me through”. He said he regarded being let through and being waved through as the same. It was put to Mr Risk that he did not refer in his statement to looking to the left and the right after he left the kerb. Mr Risk said it was not a detailed statement and was only a brief description of what occurred. He agreed that he did not say to the policeman that he had looked to the right a second time after he had left the driveway. He denied however that that was because he did not look to his right. However, he confirmed that he did not see the plaintiff's car before the collision.

113. Overall, I found Mr Risk to be an honest and truthful witness and I accept his evidence. Although he has a recollection of stopping after leaving the driveway, that recollection is contrary to the film. I find that he moved in his vehicle in one continuous movement once he decided to proceed across the lane travelling north. In particular, I find that he did not stop or slow as he neared the centre of the road.

114. I accept Mr Risk's evidence that the driver of the Tarago waved him through. This is consistent with his statement. However, in my view Mr Risk could not assume that this meant any more than the driver was allowing him to pass in front of the white Tarago. It did not amount to a novus actus interveniens due to negligence of the white Tarago driver. I accept Mr Risk’s evidence that he looked to his right after he left the driveway but did not see the plaintiff's vehicle. Overall, I found Mr Risk to be an impressive witness and I accept him as a witness of truth.

Medical reports relied upon by the defendant

115. As stated above, the defendant tendered as part of Exhibit 1 extracts from the plaintiff's general practitioner practice records including consultation notes.

116. The defendant also tendered and relied on the report of Assessor Dr Marsh in his report dated 2 August 2018. As stated above, this was part of the plaintiff’s tendered documents.

117. The defendant tendered a medico-legal report from Dr Lew Pierides dated 11 October 2017 following an examination on 10 October 2017. Although there was no interpreter at the consultation, Dr Pierides noted that the plaintiff spoke good English. This was clearly the case from her oral evidence. Dr Pierides set out the plaintiff’s employment history which is generally consistent with the plaintiff’s oral evidence including that she ceased her day care work in May 2016 as she was pregnant with her third child.

118. In relation to the plaintiff’s social history, Dr Pierides states: “She manages to perform her household duties”. The plaintiff's oral evidence was initially that she needed assistance with the household duties, and from the beginning of 2018, as she could not afford to pay for help with domestic duties, she and her husband have been completing the household duties themselves.

119. Dr Pierides notes that apart from issues with getting pregnant “she has been well”. It is also noted that the plaintiff was not taking any medications for any non-subject accident related medical conditions. This is inconsistent with the plaintiff’s general practitioner consultation notes which show that the plaintiff had a long history of back pain and sacroiliitis. The plaintiff also says she was taking Panadol Osteo prior to the accident.

120. Dr Pierides refers to the plaintiff complaining of ongoing rib discomfort on the right side of her chest. Dr Pierides referred to a whole body scan which showed no evidence of disease or fractures in the thoracic spine, ribs or sternum.

121. On examination, Dr Pierides noted that the plaintiff had a full range of motion of her cervical spine with her cervical muscles being soft and supple. Reflexes in the upper limbs were all present and brisk. The plaintiff had excellently muscled upper limbs. She had a normal cervical posture and a full pain-free range of shoulder motion bilaterally. He stated that the plaintiff displayed a full range of motion of her lumbar spine, although there was some discomfort in the low lumbar region with full flexion. It was noted that the plaintiff could stand on her toes and rest her weight on her heels but said that the right leg felt weak. She was tender to palpation over the right lateral chest muscles at one place. The plaintiff said that she had pain in her right chest area at night and could not sleep on her right side, only her left side. Dr Pierides noted a full range of thoracic rotation to the left and right and there was no muscle spasm or guarding in the parathoracic muscles.

122. Dr Pierides expressed the opinion that the accident appeared a mild to moderate motor vehicle accident and the airbags did not activate. He was of the view that the plaintiff sustained soft tissue injuries to her cervical spine, thoracic spine and lumbar spine and to her right shoulder with discomfort in the seatbelt line. He noted that apart from one assessment by a physiotherapist, the only treatment the plaintiff has had is taking medication. Although noting some ongoing symptoms, he could find no evidence of ongoing injury. He said she looks after her three children “and performs her household duties”. While finding tenderness over the right lateral chest wall at one place, he could otherwise find no abnormalities. Dr Pierides expressed the view that there was no evidence of ongoing injury on examination to suggest the plaintiff needed a lifting restriction or any work restrictions. He considered the report of Dr Verma and stated that he did not agree with Dr Verma that there was any significant ongoing injury.

123. Dr Pierides noted that the plaintiff might benefit from six sessions of physiotherapy to treat any ongoing mild musculoskeletal symptoms which would involve instruction in a stretching and strengthening programme. He expressed the opinion that the plaintiff’s activities of daily living have not been affected because of injuries sustained in the accident. The bone scan taken by the plaintiff was normal and there was no evidence that any injury of significance occurred in the subject accident. He noted that assistance may have been appropriate for the first four weeks after the accident if the plaintiff was solely responsible for the household duties. He again noted that there was no history of any pre-existing conditions. In relation to her duties, a lifting restriction for four weeks after the accident would have been appropriate and that there may have been a period of partial or total incapacity for four weeks post the accident.

124. In summary, Dr Pierides expressed the opinion that the plaintiff likely suffered soft tissue injuries in the seatbelt line and to her neck and upper back. However, he expressed the view that it is less likely she suffered an injury to her lumbar spine in the accident.

Financial documents

125. Both the plaintiff and the defendant tendered various financial documents in relation to the plaintiff’s earnings as a childcare worker for Billan Family Day Care. In addition, the defendant tendered as part of Exhibit 1 certain payments summaries from the Department of Human Services trading as Centrelink: Exhibit 1 pages 124-127. These are generally consistent with documents from the Department of Human Services relating to the plaintiff which became Exhibit 2. Also in evidence as part of Exhibit D were the plaintiff's bank statements from the Commonwealth Bank of Australia showing transfers from Billan Family Day Care to the plaintiff.

126. The defendant asserted that Exhibit 2 showed the plaintiff did not declare her earnings from Billan to the Department of Human Services. In my view, the document did not show this clearly. The plaintiff said she declared her earnings in her taxation returns and she earned her money under the name of “Amin’s Childminding.” I accept the plaintiff’s submission that the plaintiff had disclosed her earnings to the Australian Taxation Office.

127. In relation to the plaintiff’s bank statements, it was agreed between the parties that Exhibit D established that from 30 May 2014 to 29 April 2016, a period of one hundred weeks, the plaintiff received $55,193.39 from Billan Family Day Care at an average pre-tax-pre-deductions earnings as a childcare operator of $551.93 per week. However, it is clear that the plaintiff had substantial expenses in operating her family day care business. That is apparent from the plaintiff's 2016 income tax return (Exhibit 1 page 113) in the light of the plaintiff's bank statements (Exhibit D). The inconsistency between the plaintiff’s earnings in Exhibit D and the declared income from Billan Family Day Care in the plaintiff's income tax returns and notices of assessment can be explained by the expenses which the plaintiff must have accrued. The only other explanation is that the plaintiff falsely did not declare all her income from Billan as net income in her tax returns, a conclusion I would not reach in the absence of clear evidence. I find that I should take as the net earnings from the plaintiff’s child caring activities those sums referred to in the income tax assessments and the tax returns. The amounts in the notices of assessment and tax returns for the plaintiff can be summarised as follows:

Year ending	Taxable income	Tax	References
2014	$3,287 (Bilan $2,714 Centrelink $573)	$Nil	Exhibit A/74-75, 94 Exhibit 2
2015	$16,797 (Billan $6,514 Centrelink $10,283)	$Nil	Exhibit A pages 76, 77‑78, 92 Exhibit 2
2016	$21,302 (Billan $12,341 net Centrelink $8,961)	$Nil	Exhibit A/89 Exhibit 1 page 113 Exhibit 2

128. This equates to $21,569 in taxable earnings net of expenses in the relevant three year period or about $7,200 per year. The returns show the plaintiff’s income from her child care activities was increasing. I accept the plaintiff’s submission that the earnings in the 2015-2016 financial year relating to childcare were averaged at about $285 per week when allowance is made for the fact that the plaintiff finished her work in late April or early May 2016 due to her pregnancy. No contrary submission was made by the defendant and it seems to accord with the evidence.

“75.  The question of whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant’s circumstances would have done, if anything, by way of a response to any foreseeable risks of injury or sources of danger to other road users. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: Civil Liability Act s 5B(1).

…

77.  In Warth v Lafsky at [56] McColl JA observed that notwithstanding the conclusion in Derrick v Cheung [2001] HCA 48; 181 ALR 301, it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines: Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416, 418 (Mahoney P); Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 at [16] - [17] (Emmett JA, Ward and Gleeson JJA agreeing).

78.  It has also been said that motorists should "exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections": Turkmani v Visvalingam [2009] NSWCA 211; 53 MVR 176 at [28] (Hodgson JA, Beazley and McColl JJA agreeing).”

151. In my view, the risk of harm in the present case was of a person overtaking to the right the stopped line of traffic to proceed around the stopped line and the defendant colliding with their vehicle if he did not exercise reasonable care.

152. Sections 5B and 5C of the CLA provide as follows:

“Division 2 Duty of care

5B   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 determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)  the probability that the harm would occur if care 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 that creates the risk of harm

5C   Other principles

In proceedings relating to liability for negligence:

(a)  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(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 the thing was done, and

(c)  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

153. I now turn to consider the analysis required by ss 5B and 5C of the CLA:

1. Was the risk foreseeable, that is, that it was a risk of which the defendant knew or ought to have known? In my view, the risk was foreseeable. The line of traffic to the right of the defendant was stationary. Despite the location and weather conditions it was foreseeable that someone delayed by the traffic would, if the right lane was clear to them, attempt to overtake the stationary traffic to proceed in a northerly direction;

2. The risk was not insignificant: While, having regard to the location and the weather and the traffic, there was not a high risk of someone attempting the overtaking manoeuvre which the plaintiff adopted, in my view the risk was not insignificant of someone doing that having regard to the desire to get past the stationary line of traffic and proceed north;

3. In the circumstances, a reasonable person in the person's position would have taken those precautions - in my view, a reasonable person in the position of the defendant would not have exited the driveway in a continuous movement as he did. In my opinion, a reasonable person in the defendant's position would have moved slowly into the centre of the road in front of the white Tarago upon being waved to do so by the driver of that vehicle, but would have stopped or slowed down and then looked cautiously to the right and left before proceeding out in an extremely slow fashion. In my view, a reasonable person in the defendant's position would not have moved out in one continuous movement whilst accelerating even if he was looking to the right;

4. The probability that the harm would occur if care were not taken: In my view, the probability of the harm occurring if the defendant did not undertake the precautions indicated was not high;

5. The likely seriousness of the harm: A potentially serious accident could have occurred, even at low speeds, if the defendant had not undertaken the care and precautions which I have indicated;

6. The burden of taking precautions to avoid the risk of harm: This was not extensive in the circumstances as it merely involved the defendant stopping or slowing, looking again and then moving out extremely slowly;

7. There was no particular social utility of proceeding in one continuous movement whilst accelerating as the defendant did.

154. Overall, in my view a reasonable person in the position of the defendant, having regard to the location, the busy traffic, the weather, the time of drop-off near a school and the restricted view which he had, would have proceeded as I have indicated above. Having regard to all the circumstances, I therefore find that the defendant breached the duty of care which he owed to the plaintiff. In coming to this conclusion, I take into account Rule 74 of the Road Rules 2014 (NSW) which provides that a driver entering a road from a road related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line, must give way to any vehicle travelling on the road.

Causation

155. The principles to apply in relation to causation under the CLA are set out in ss 5D and 5E of the CLA which are as follows:

“Division 3 Causation

5D   General principles

(1)  A determination that negligence caused particular harm comprises the following elements:

(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)  In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3)  If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)  For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E   Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

156. Therefore, the plaintiff has the onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings: see Strong v Woolworths Ltd (2012) 246 CLR 182 at [18] and Wallace v Kam (2013) 250 CLR 375 at [16]-[19].

157. The determination of factual causation under s 5D(1)(a) of the CLA requires the application by a court of the “but for" test of causation. That requires the court to make a determination that in accordance with the section, negligence was a necessary condition of the occurrence of harm and that on the balance of probabilities the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: Strong v Woolworths Ltd, above, at [18]. This involves a determination in the present case whether, but for the breach of duty of care, any loss or damage suffered by the plaintiff would not have occurred.

158. The defendant in exiting the driveway appeared to proceed from the CCTV film at a fairly modest pace. However, it was in one continuous movement and he was accelerating as I have found. If the defendant had stopped or slowed right down in the middle of the road in front of the Tarago and inched forward very slowly looking to the right, I think it is more likely than not that the plaintiff would have seen the defendant's vehicle and been able to stop. Whilst allowances must be made for the speed of the plaintiff's vehicle and the difficulties of sight, the plaintiff had a clear view in her overtaking lane. I find that if the defendant had stopped or slowed right down as I have indicated, it is more likely than not that the accident would not have occurred.

159. Accordingly, causation is established by the plaintiff in the present case.

Contributory negligence

160. The defendant has pleaded contributory negligence in his Amended Defence filed on 6 August 2019. It is not suggested that the plaintiff was exceeding the speed limit at the time of the accident but it is submitted that the plaintiff was driving at an excessive speed when she overtook the cars to her left having regard to all the circumstances. I accept the plaintiff's evidence that at the time she overtook she looked in the overtaking lane and saw no other vehicles coming.

161. Where there is a motor vehicle accident, contributory negligence is to be determined by applying s 138 of MACA and ss 5R and 5S of the CLA.

162. Section 138 of MACA provides as follows:

“138   Contributory negligence—generally (cf s 74 MAA)

(1)  The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.

…

(3)  The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

(4)  The court must state its reasons for determining the particular percentage.”

163. In Davis v Swift [2014] NSWCA 458 Meagher JA (with whom Leeming JA agreed) stated at paragraphs [23]-[29] as follows:

“[23] Section 138(1) of the MAC Act provides that the “common law and enacted law as to contributory negligence“ apply to an award of damages in respect of a motor accident, except as provided by that section. The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility.

[24] The starting point is s 9(1) which provides that if the claimant “suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person” the damages recoverable in respect of the wrong “are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”. That description of contributory negligence reflects the common law position that the claimant’s lack of care must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21].

[25] The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 ; 59 ALJR 492 at 494 as follows:

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man…and of the relative importance of the acts of the parties in causing the damage…. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

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

(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

[27] Section 74(3) of the Motor Accidents Act 1988 (NSW) is in the same terms. In Nicholson v Nicholson(1994) 35 NSWLR 308 at 333–334, Mahoney JA suggested a reason for the use of the broader language. The concept of contributory negligence involves the plaintiff’s lack of care contributing to the damage. However, the effect of s 74(2), which is in similar terms to s 138(2), is to require a finding of contributory negligence in cases where the act or omission may not have caused or contributed to the damage claimed. Relevantly in that case, s 74(2)(c) required a finding of contributory negligence “where the injured person … was … not wearing a seat belt as required“ by law. That being the position, the broader language may have been used to allow the court in such cases to recognise that it would be unjust and inequitable, where there was no such causation or contribution, to reduce the damages otherwise recoverable. The remaining members of the court, Kirby P with Meagher JA agreeing, also held that the finding of contributory negligence required by s 74(2)(c) did not constrain the inquiry as to what was “just and equitable“ or prevent consideration of all of the circumstances, including whether the absence of a seat belt contributed to the damage claimed.

[28] In a case that does not involve a finding of contributory negligence made under s 138(2) or deemed fault on the part of the owner or driver, an assessment of what is “just and equitable in the circumstances of the case“ will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek. See the discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180 ; 43 MVR 315 at [54]–[63]. In Joslyn v Berryman [2003] HCA 34 ; 214 CLR 552 at [157] Hayne J considered s 74(3) to require the undertaking of such a comparison: cf Kirby J at [133].

[29] Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant’s contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant’s position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant’s damages by reason of contributory negligence.”

164. In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (with whom Barrett and Gleeson JJA agreed) stated as follows at [161]-[162].

“[161] The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of ss 5B and 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case.

[162] As has been remarked in various cases in this court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person’s own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)–(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 38(3) requires the court to reduce the damages recoverable “by such percentage as the court thinks just and equitable in the circumstances of the case“.”

165. The decision in Grills v Leighton Contractors, above, was referred to with approval in Boateng v Dharamdas, above, at [129].

166. In my view, there was clear contributory negligence by the plaintiff in the present case. It must be recalled that the motor accident occurred in the following context:

1. The traffic was busy at the time;

2. The accident occurred near the entrance to a primary school;

3. It was the pupil drop off time in the morning;

4. The parties have given evidence that it was drizzling at the time;

5. The plaintiff has given evidence that there were two cars stopped ahead of her in her lane;

6. Although the plaintiff looked and saw that there was no one in the lane to the right and she overtook, the plaintiff was aware that there were entrances and exits to the school along the road;

7. The plaintiff should have been aware that there were dangers with pedestrians and with cars undertaking manoeuvres in order to drop their children safely at the school in the morning;

8. While the defendant said in his police statement that the plaintiff was driving on the wrong side of the road and doing more than 40kph, the plaintiff says she was doing about 20kph. The CCTV evidence shows that the plaintiff was not proceeding slowly. She was clearly driving fairly quickly. In my view, the plaintiff should have, if she was attempting the overtaking manoeuvre, proceeded very slowly on the other side of the road and been prepared to stop at very short notice;

9. She was clearly not taking care for her own safety.

167. Adopting the analysis in ss 5B and 5C of the CLA:

1. The risk of a person in a vehicle exiting the school and coming into the lane in which the plaintiff was overtaking was foreseeable as it was a risk of which the plaintiff ought to have known;

2. Having regard to the busy traffic dropping children off in the morning the risk was not insignificant;

3. In the circumstances, a reasonable person in the plaintiff's position would either have not overtaken, driven an alternative route or overtaken at a very low speed;

4. There was a small probability that harm would occur in overtaking but a higher probability if anything other than a low speed was adopted;

5. The harm which could arise from a collision was likely to be serious;

6. The burden of taking precautions to avoid the risk of harm was minor by not overtaking or overtaking at a very low speed;

7. There was no particular social utility in engaging in the overtaking rather than waiting for the traffic to clear.

168. Having regard to the heavy traffic, the location of the overtaking near a school, the weather, the fact that cars ahead of her were stopped and the potential for an accident, in my view, the plaintiff clearly failed to take reasonable care for her own safety in overtaking as she did.

169. I have found above that the defendant also breached his duty of care by exiting the school entrance too quickly and without stopping or slowing right down and without moving forward very slowly.

170. Applying the approach in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494, the court must make an apportionment between the plaintiff and a defendant of their respective shares in the responsibility for the damage by comparing culpability and the relative importance of the acts of the parties in causing the damage.

171. In looking at the facts of the present case, in my view the plaintiff is more responsible than the defendant. I would reduce the plaintiff’s damages by 60%. The defendant should not have exited without stopping or slowing down in the centre of the road and inching forward carefully. The defendant should not have exited in a continuous movement. However, the plaintiff should not have adopted the overtaking manoeuvre which she did having regard to the traffic, the location near the school and the weather. The area was busy and cars could clearly have turned right from driveways ahead. She was driving at a clearly excessive speed in the circumstances. A 60% reduction is appropriate.

Damages

172. As I have found that the defendant breached the duty of care which he owed to the plaintiff, it is necessary to proceed to an assessment of damages.

173. The plaintiff is not entitled to make any claim for non-economic loss as she has not reached the statutory threshold under s 131 of MACA.

Past out-of-pocket expenses

174. Although initially the amount for past out-of-pocket expenses was agreed mathematically at the conclusion of the evidence at $6,427.60, in oral submissions counsel for the plaintiff sought a greater sum. The out-of-pocket expenses claimed were set out in a schedule at page 166 of Exhibit A.

175. In relation to the expenses set out in the Medicare Notice of Charge document at page 171 of the plaintiff's bundle, I allow the expenses claimed for June 2017. The relevance to the accident is confirmed by the consultation notes. I accordingly allow the amount of $205.11.

176. In relation to the medical expenses at page 172 of Exhibit A, these have been paid on behalf of the defendant and accordingly the defendant should have a defence in relation to these payments under s 83 of MACA.

177. In relation to the accounts of Dr Saeed at page 173 of Exhibit A, having regard to the plaintiff's evidence at T57 and the consultation notes, I allow the sums at page 173 totalling $822.00.

178. In relation to the accounts concerning Medi-link Counselling, the plaintiff gave evidence that she saw Ms Mohini, the psychologist, in relation to the stress and the problems that she was facing related to the accident: T58.2. In the light of that evidence, I allow the amounts claimed which in my view are reasonable having regard to the report of Dr Lee.

179. Accordingly, I allow in relation to past out-of-pocket expenses the amount of $7,156.61.

Future out-of-pocket expenses

180. The plaintiff seeks the award of a lump sum of $10,000. This is for medical consultations, physiotherapy and analgesics. The defendant submits that nothing should be awarded as the plaintiff’s conditions have resolved.

181. I have accepted that the plaintiff has continuing restrictions and pain in her right shoulder and upper arm referred from her neck and in the lower back hip area arising from the accident.

182. The plaintiff is entitled to see her general practitioner in relation to these problems on occasion and to continue to take over the counter analgesics or prescription painkillers if the pain is particularly bad. I also accept that the plaintiff would be entitled to some physiotherapy assistance in relation to her difficulties. This seems to be accepted even by Dr Pierides at page 8 of his report. Some support is also given in the report of Dr Verma. I do not see the other expenses recommended by the plaintiff’s medico-legal specialists as being established by the plaintiff's limited continuing complaints. In my view, the amount claimed by the plaintiff of $10,000 as a lump sum is too high and I would allow the sum of $5,000 for the items indicated.

Past commercial assistance

183. The plaintiff seeks payment for past commercial assistance obtained from the cleaner Nida. She does not satisfy the threshold in s 141B of MACA of gratuitous care provided for at least six hours per week and for a period of at least six consecutive months.

184. Despite the submissions made on behalf of the defendant, I accept that the plaintiff obtained the services of Nida in relation to domestic assistance around the house for the little more than six months after the accident and this was a necessary result of her injuries in the accident. The plaintiff claims $1,500. However, the plaintiff's evidence was that the assistance was provided for two or three hours per week. On the basis of 2½ hours per week on average at $15 per hour for 30 weeks, I allow the amount of $1,125.

Future commercial assistance

185. The plaintiff makes a claim for future commercial assistance in the sum of $50,000 calculated at two hours per week at $45 per hour for 20 years. The defendant submits that nothing should be awarded. In order to award an amount for future commercial assistance, the court must be satisfied that there is a need for the award for future paid commercial assistance: Smith v Alone [2017] NSWCA 287 at [73]-[77]. The plaintiff gave evidence that since early 2018 when Nida finished, her husband and her undertake the domestic duties together: T53.50. While the plaintiff said that the help from Nida “helped [her] condition” (T53.37), that did not take the matter further in relation to the plaintiff's current complaints.

186. Having regard to the evidence from the plaintiff that she and her husband undertake the domestic duties together, and the soft tissue injuries which the plaintiff has suffered (although they have continued for some duration), I am not satisfied that the plaintiff is entitled to any damages for future commercial assistance as sought.

Past loss of earning capacity

187. At the time of the accident, the plaintiff was not working. She makes a claim for $20,000 for past loss of earning capacity on the basis of $200 per week from mid-2015 to date (plaintiff’s schedule). However, the plaintiff stated that she would not have commenced childcare activities again until mid-2017. It may be this was an error in the plaintiff's schedule.

188. The plaintiff had her small child with her in court. Since the accident she has had to look after her three children including this small child, although with assistance no doubt from her husband. The plaintiff also had continuing problems with her low back and right sciatica at the time of the accident which I have referred to above.

189. In my view, the amount claimed by the plaintiff is excessive. With three children and low back pain, the plaintiff may well have delayed her planned return to work. The plaintiff has, however, suffered continuing problems with referred pain from her neck and the other complaints which I have referred to above.

190. Taking into account the plaintiff’s evidence, the medical evidence, the age of the plaintiff’s children and the plaintiff’s earnings up to when she ceased working for Billan, I would allow the amount of $15,000 for past loss of earning capacity reducing the amount claimed partly for the contingency of the plaintiff having difficulties because of her lumbar pain and sciatica, partly to allow for the possibility of the plaintiff’s other pre-accident problems returning and partly because of her increased domestic responsibilities. She also had a new small child to look after.

191. Accordingly, I award the plaintiff the lump sum of $15,000 for past loss of earning capacity.

Future loss of earning capacity

192. The plaintiff claims $100,000 for future loss of earning capacity on the basis of a buffer. Damages are awarded to a plaintiff for loss of earning capacity because there is a diminution in the plaintiff's earning capacity which is or may be productive of financial loss. The plaintiff must prove the loss for which compensation is sought: Graham v Baker (1961) 106 CLR 340 at 347, Sretenovic v Reed [2009] NSWCA 280 at [80]. An allowance can be made on a buffer basis where the impact of an injury caused by negligence upon the plaintiff’s loss of earning capacity is difficult to determine or involves uncertainties: Penrith City Council v Parkes [2004] NSWCA 201; Sretenovic v Reed, above at [79]-[81].

193. The plaintiff currently has limited soft tissue injuries causing continuing pain and restrictions. I have made an allowance for physiotherapy to assist the plaintiff with her core body strength and her continuing recovery. The plaintiff's pain and restrictions have lasted some considerable time. While the plaintiff points to difficulties with bending and lifting and pushing a pram, there is nothing to stop her looking after slightly older children or children in an after school care situation.

194. The plaintiff’s sum is based on a $250 a week loss of earning capacity for 20 years less 15% for vicissitudes with a further deduction.

195. The plaintiff's evidence about her present complaints is limited: see T48.6. The plaintiff also had her complaints shortly before the accident in relation to low back pain and right sciatica.

196. In my view, it is likely that the plaintiff would have returned to some childcare activities but for the accident, but these would have been more limited having regard to the fact that she had a third child and thus has heavy domestic responsibilities. The plaintiff’s condition and restrictions are also likely to improve somewhat with physiotherapy and the passage of time. However, the plaintiff is fairly young which is relevant. She was also a teacher by profession.

197. Doing the best I can on all the evidence, I would allow the amount of $50,000 as a buffer for loss of future earning capacity. The plaintiff only has soft tissue injuries although these have been of considerable duration. However, as a former teacher and being clearly intelligent it is likely she would want to return to child minding to assist the family financial position. This sum includes a reduction for vicissitudes.

198. Accordingly, the amounts I have allowed for damages are as follows:

Non-economic loss	Nil
Past out-of-pocket expenses	$7,156.61
Future out-of-pocket expenses	$5,000.00
Past commercial assistance	$1,125
Future domestic assistance	Nil
Past economic loss	$15,000.00
Future loss of earning capacity (buffer)	$50,000.00
Total	$78,281.61

199. This figure should be reduced as I have found by 60% to take account of contributory negligence. Accordingly, the amount to be awarded to the plaintiff is $31,312.64.

200. The parties should check my mathematical calculations and apply to relist the matter within seven days if there is an error.

Disposition

201. For the above reasons, I make the following orders:

1. Judgment for the plaintiff in the sum of $31,312.64.

2. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed.

3. Liberty to the parties to apply to vary order (2) within 14 days.

4. Liberty to the parties to approach the court within 7 days to correct any mathematical errors in the damages awarded.

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Decision last updated: 11 October 2019