Taheer v Australian Associated Motor Insurers Ltd (trading as AAMI)

[2010] NSWCA 191

New South Wales

Court of Appeal

CITATION:	Taheer v Australian Associated Motor Insurers Ltd (trading as AAMI) [2010] NSWCA 191 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22 February 2009
JUDGMENT DATE:	12 August 2010
JUDGMENT OF:	Beazley JA at 1; Giles JA at 10; Harrison J at 105
DECISION:	(1) Appeal dismissed in relation to contributory negligence but allowed in relation to assessment of damages; (2) Set aside the verdict and judgment for the plaintiff in the sum of $160,132.42 and the orders for costs given and made on 13 February 2009; (3) Order that there be a new trial limited to assessment of damages; (4) Order that the costs of the trial be in the disposal of the judge conducting the new trial; (5) Order that the respondent pay the appellant's costs of the appeal.
CATCHWORDS:	TORTS - negligence - contributory negligence - motor vehicle collision - whether judge imposed a higher standard of care than that of a reasonable person in position of appellant - no error shown - otherwise no error as to finding of contributory negligence or reduction of damages - APPEAL - civil - failure to give reasons - appellant not accepted as to extent of injury and consequences - no finding as to true extent and consequences - but damages awarded under various heads - bases for awards not ascertainable without findings - awards inconsistent - reasons inadequate - new trial as to damages
CASES CITED:	Astley v Austrust Ltd (1999) HCA 6; (1999) 197 CLR 1 Council of the City of Greater Taree v Wells [2010] NSWCA 147; Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Rep 81-731; Jones v Dunkel (1959) 101 CLR 298; Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR; Nominal Defendant v Gardikiotis (1996) 186 CLR 49; Podrebsersek v Australian Iron and Steel Pty Ltd (1997) 59 ALR 25; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Sibley v Kais (1967) 118 CLR 424; Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; Tarabay v Leite [2008] NSWCA 259; Tromp v Liddle (1941) 41 SR 108; Turkmani v Visvalingam [2009] NSWCA 211.
PARTIES:	Sadiqa Taheer by her tutor Mohmoud Taheer - Appellant Australian Associated Motor Insurers Limited (t/as AAMI)
FILE NUMBER(S):	CA 2009/298255
COUNSEL:	B Gross QC & D Williams - Appellant R S McIlwaine SC & J Davidson - Respondent
SOLICITORS:	Carroll & O'Dea - Appellant McLachlan Chilton - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4896/05
LOWER COURT JUDICIAL OFFICER:	Robison DCJ
LOWER COURT DATE OF DECISION:	12 February 2009

CA 2009/298255
DC 4896/05

BEAZLEY JA
GILES JA
HARRISON J

12 August 2010

TAHEER

v

AUSTRALIAN ASSOCIATED MOTOR INSURERS LTD

Judgment

1 BEAZLEY JA: I have had the advantage of reading in draft the reasons of Giles JA, with which I substantially agree. I also agree with the orders his Honour proposes and his Honour’s recommendation for mediation. I wish, however, to make the following short comments: first, as to the trial judge’s findings as to contributory negligence, secondly, as to the trial judge’s reasons and thirdly, as to the manner in which the appellant cast her case, both at trial and on the appeal.

2 The trial judge made a finding of contributory negligence against the appellant and assessed her contribution to the accident as at 30 per cent. For myself, having regard to the whole of the evidence, I see no error either in the finding or the assessment. Indeed, as Giles JA pointed out, any finding other than contributory negligence would have been astonishing.

3 Initially, the trial judge’s reasons as to contributory negligence caused me some concern. References to “onus”, “very good lookout” and the focus on the appellant’s personal circumstances, in the consideration of contributory negligence, at first blush appeared quite problematic. However, on reflection, given what appeared to be a reasonably obvious case of contributory negligence, it seems to me that his Honour was doing no more than articulating his thought process as to whether there was any basis for finding that the appellant was not contributorily negligent. As Giles JA has discussed in relation to his Honour’s reasons in respect of damages, this seems very much his reasoning style. That is, his Honour expresses a series of negatives before reaching a determination.

4 The standard of care that applies for the purposes of contributory negligence is that prescribed by the Civil Liability Act 2002, s 5R (2): namely, that of a reasonable person in the position of that person, and the matter is to be determined on the basis of what that person knew or ought to have known at the time.

5 I am satisfied on reading his Honour’s reasons as a whole that he did not impose a standard of care that was either too high, or incorrectly unique to the plaintiff. Rather, I consider that what he was doing was seeking to articulate a standard of care appropriate to the circumstances: Those circumstances were that it was getting dark and the appellant was herself wearing dark clothing. In those circumstances, it would have been harder for the driver of the vehicle that struck her to see her, than if it had been lighter, or if she had been wearing light clothes. It was in those circumstances that the appellant was required to exercise reasonable care in crossing the road.

6 As it was dark, the appellant had to keep a proper lookout appropriate to that circumstance. In my opinion, in stating that the appellant was required to “keep a very good lookout”, his Honour was referring to that circumstance. His Honour’s reference to it being about “half an hour after sunset” is indicative that that is what he meant.

7 His Honour’s references to the appellant’s personal and educational background again seem to me to be no more than a statement that there was nothing in those circumstances that affected the standard of care of the reasonable adult pedestrian who was crossing the road as it was becoming dark. That required the appellant to keep a proper lookout, as his Honour found. In this case, although the negligence of the driver in not having his lights on and himself not keeping a proper lookout was such that he bore the substantial responsibility for the accident, the appellant failed to exercise reasonable care for her own safety, by failing to keep a proper lookout.

8 That leaves the manner in which this case has been conducted. The appellant’s case as conducted at trial and as reasserted on the appeal was a highly elaborate one: a claim for damages in the order of $5 m is quite disproportionate to the degree of injury sustained in this accident as revealed in the medical reports. Further, as Giles JA has indicated, the grounds of appeal were prolix and on occasions, widely stated. The submissions did not always match the width of the ground. There may be a response to that comment, that it is better for the submission to be properly tailored to the real point sought to be made. About that there is no doubt. However, even that was not always achieved in this case.

9 In any event, in modern litigation, a great deal of the work in a case is performed at the pre-hearing stage. This is particularly so in the case of an appeal. Prolix grounds of appeal still have to be met by the opposing party. They are considered by the Court at several levels, for various reasons, before the actual hearing of the appeal. This is all costly in time, money and resources. It is necessary at all times to keep in mind the requirements of the Civil Procedure Act 2005, s 56. That provision places a statutory obligation on the Court, the legal representatives and the party. With respect to the wide ranging claims made in this matter, much of which had little, if any, support in the evidence, it must be said that this case is on the precipice of failing in the observance of this statutory obligation.

10 GILES JA: The appellant was struck by a motor vehicle driven by Mr Mohamed Alameddine, while crossing Helena Street, Auburn, at about 6.15 pm on 17 September 2003. The respondent, which was joined as his CTP insurer following the subsequent death of Mr Alameddine, admitted breach of a duty of care. The issues at trial were contributory negligence and assessment of damages. There was significant dispute over the nature and extent of the appellant’s injury and consequent disabilities.

11 Robison DCJ found that the appellant had been contributorily negligent, and reduced the damages recoverable by her by 30 per cent.

12 The judge assessed the damages at $228,760.60, reduced to $160,132.42. In a schedule provided to the judge the appellant had claimed damages totalling $6,525,593 plus costs of fund management. The judge’s assessments under the claimed heads of damage was -

Head of damage Claim Assessment


Past out-of-pocket expenses $32,075 $28,760

Non economic loss $275,000 $150,000

Past loss of income $99,450 )
)
Future loss of income $283,050 ) $50,000
)
Loss of superannuation $43,478)

Past voluntary care $236,393 )
) Nil
Past contracted care $239,200 )

Future domestic care $5,000,000 Nil

Future accommodation $96,250 Nil

Future case management $126,129 Nil

Future handyman/
gardener assistance $20,000 Nil

Future additional holiday
expenses for carers $50,000 Nil

Future fund management ? Nil

Total $228,760.60

13 The respondent had made an offer of compromise in a greater amount than the damages awarded, and the judge ordered that the respondent pay the appellant’s costs on the ordinary basis up to and including 20 March 2008 and that the appellant pay the respondent’s costs on the indemnity basis on and from 21 March 2008.

14 The appellant appealed against the finding of contributory negligence and, if there was contributory negligence, the reduction of 30 per cent. She appealed also against the assessment of damages. The grounds of appeal included complaint of inadequacy in the judge’s reasons.

15 The trial extended over thirteen days of evidence and four days of submissions. An oral judgment was delivered on the day after conclusion of submissions, extending into the following day. The transcribed reasons occupied over 100 pages. The reasons were discursive and far from ideal; however, they were given ex tempore and should not be scrutinised over-critically. Whether or not they were adequate will be considered in due course.

The accident

16 Helena Street runs approximately east-west. Roughly half way along its length it is joined by Hargrave Road from the south and, with a slight offset to the west, by Susan Street from the north. About 90 metres further to the east it is joined by Marion Street from the north. The appellant was struck about one-third of the distance from Hargrave Road to Marion Street.

17 At that location Helena Street was approximately 12.8 metres wide. It was a residential area. The road was kerbed and guttered. One unmarked traffic lane ran in each direction. There was street lighting by dual low powered fluorescent tubes at 35 to 40 metre intervals along the southern side of the street, including a light about 10 metres to the west of where the appellant was crossing the road. The roadway was straight, with a slight downhill to the east, and the road surface was asphaltic concrete.

18 At the time of the accident the weather was fine and traffic was light. Sunset was at 5.48 pm, a little over half an hour before the accident. The visibility as between Mr Alameddine and the appellant was variously described, and I will return to it.

19 An entry in a police notebook signed by Mr Alameddine, a police interview with Mr Alameddine and a statement made by Mr Alameddine to the respondent’s investigator were in evidence.

20 In the notebook entry Mr Alameddine said that a pedestrian came from his right and “I didn’t see her until the front of my car hit her”; she hit on the front near side just above the headlight; to avoid her he “tried to move to my right and that’s why she was hit on my front left hand side. I almost missed her.”

21 In the police interview, which was dated 5 November 2003, Mr Alameddine put the accident at 6.30-7.00 pm and said that it was night time and his headlights were on, “They were the normal light”. He drove often along Helena Street. He said -

“Q102 That’s OK. Can you remember, did you sorry … OK. When did you become aware that there was a pedestrian on the roadway in front of your vehicle?
A(Int): When that woman was hit, when she was hit, yeah. I wasn’t aware when, like, when I looked at my right, you know, light and then I hear the (DEMONSTRATES AUDIBLY) or bang bang. And I … And I, you know, lifted my foot from the accelerator and on the brake. This is when I felt. It’s like, because the reason being because I wasn’t driving fast. If I was driving fast, she would be way. I wasn’t even 20 driving. Once I lifted from the accelerator, I saw her on the floor. I didn’t feel that she, if she was a human being, somebody or a dog. She was wearing black.
Q103 OK How fast do you think you were travelling at the time that she was hit?
A(Sus): Lower than 30.
Q104: Lower than 30 kilometres an hour?
A(Sus): Lower than 30. Lower than 30 …
Q105 OK Can you tell me in which direction the pedestrian was travelling?
A(Int): She was coming from right side.
A(Sus) That was.
A(Int) … but I know that she threw herself on me.
Q106: OK
A(Int): She was, she went behind a van and it was night. I couldn’t, I couldn’t see the facts [sic: face?].”

22 Mr Alameddine repeated in differing ways that the woman came from behind the van from the right and threw herself on him, including “like, committing suicide by her”.

23 In the statement, which was dated 19 November 2003, Mr Alameddine said -

“13. It was dark and I had the headlights on low beam. I was heading towards home and was travelling along Helena Street, south. I have travelled along this street many many times and it is the usual way I travel home from the Mosque.
14. I don’t remember if there was other traffic about. There are some small streetlights, but the street is pretty dark. It was a fine night and the road was dry. The speed limit is now 50 kilometres per hour and it is a normal suburban street.
15. I was driving along between 20 to 30 kilometres per hour. I have not seen pedestrians around this area before at this time of night. I drove past Susanne Street on my left hand side. I suddenly saw a person who appeared to be running from my right to the left. I first saw her when she ran into my lights. She was wearing black clothing.
16. I took my foot off the accelerator and put it on the brake pedal. I braked as hard as I could and seemed to stop straight away. The left hand side of the front of the car hit the person and they hit the front left hand side of the front windscreen and side mirror. This person then fell to the ground.”

24 The appellant said that she had no memory of the accident. On her case, she had suffered serious brain injury. Material to the judge’s finding of contributory negligence, she was of Islamic faith, and wore traditional Muslim clothing, black with long sleeves. An eyewitness, Mr Salem Haidari, said that she was wearing a black hijab.

25 Three eye witnesses gave evidence. They were Mr Said Comert, Mr Zubair Ghalzai and Mr Haidari.

26 Mr Comert gave evidence by telephone, from Turkey where he was on holiday. He was driving on Hargrave Road and turning right into Helena Street. He saw a car go past him and hit a lady. The car was a grey colour, and was “not going really fast”. Its headlights were not on, and Mr Comert did not have his headlights on. It was “getting dark, about sunset”, and the street lights were on. He did not see the lady before she was hit by the car. He confirmed that what he had said in a police statement was correct.

27 In the police statement Mr Comert said that he stopped before turning into Helena Street, to allow a car to pass in front of him. It was silver in colour and driving slowly. Its headlights were not on, nor were his. A white van was parked in Helena Street, blocking his vision of traffic approaching from the right; it was close to the corner of Helena Street and Hargrave Road. After the car had passed he began his turn. He heard a high pitched squeal like brakes, saw the brake lights on the silver car, and saw a black figure flying in the air. After he had stopped and summoned help, he saw the lady who had been hit. She was “wearing a black gown, like a coat, like the Muslim ladies wear”, and a black headdress. He did not see the lady before she was hit. The driver of the silver car said, “I did not see her”.

28 Mr Ghalzai lived in Helena Street, to the east of the location of the accident. He and Mr Haidari were walking west along the southern side of Helena Street, going to the Mosque. He “saw a woman crossing the street wearing like dark clothes and she got hitten by a car with no headlights”. The woman was two or three metres away from the kerb when he first saw her. She was “crossing normal, not hurrying, not rushing”. She was “almost to the end of the other side, almost” when she was hit by the left part of the car. He did not remember any parked cars, or a van, along the street; he was not paying attention to that. He did not hear any screech of hard braking. He could not say it was “like night” but it was dark. The car’s headlights were off.

29 Mr Haidari saw a lady crossing the road and a car came and hit the lady. She was “just walking normal, crossing the road”. When she was hit “she was almost passed the road – I turned up the road, she was walking into the road, and then she was hit by the car”. (This is not very clear). He was about 20 metres away when she started to cross the road. The headlights of the car were off. There may have been one or two cars on the other side of the road. The passenger side of the car close to the bonnet hit her. She was walking at “a little bit of an angle”. He did not hear any sounds of brakes. It “was dark, it was afternoon”. He did not remember a parked white van but there was a small car. It was very quick.

30 The judge did not relate and analyse these accounts to a narrative finding as to the accident. He thought that Mr Alameddine was “endeavouring to underplay his involvement in the accident and to throw all of the blame upon the plaintiff”. He considered Messrs Ghalzai and Haidari truthful and reliable. He accepted Mr Comert’s evidence. He found that the point of impact was where the appellant “had substantially crossed most of the road”. He appears to have found that Mr Alameddine’s car was travelling at 30 to 40 kilometres per hour. He found that the appellant crossed the road from Mr Alameddine’s right and that there was a van parked on the southern side of Helena Street. Later in the reasons (see the passage set out below) he found that the appellant “emerged from behind the van”.

31 The causative negligence on Mr Alameddine’s part found by the judge was not clearly stated. He said that Mr Alameddine did not see the appellant, and it appears to have been that Mr Alameddine did not keep a proper lookout and so did not see the appellant. It is not entirely clear whether the negligence included failure to have the headlights on, or whether the judge thought that that had no causal effect because Mr Alameddine was not looking at all: it appears, however, from the reference to the evidence of Mr Stuart-Smith, an expert called by the respondent, in the passage set out at [33] that driving without the headlights on was part of Mr Alameddine’s negligent failure to see the appellant.

Contributory negligence

32 At one point the judge recorded as the respondent’s case that the appellant “ought to have been able to see [Mr Alameddine’s] vehicle at the time, and she simply failed to do so”. That appears to have become mingled with the propositions, part of the cross-examination of Mr Michael Griffiths (an expert called by the appellant) set out by the judge, that before crossing a road “it’s a good idea to make sure there’s no cars ... particularly if its at night-time and you’re wearing a non-contrasting black dress”, Mr Griffiths also saying that and being clad in dark clothing makes it very difficult to see. The judge observed that the darkness of the appellant’s clothing was “a very relevant matter to consider when one assesses the assertions of contributory negligence … ”.

33 The judge continued, and this was his reasoning on contributory negligence -

“If one is wearing dark non-contrasting clothing prudence and commonsense dictates that in the circumstances of the events that we have here, namely something leading up to about half an hour after sunset, that person would certainly be expected to keep a very good lookout, having regard to the ambient conditions at the time. This is an onus the plaintiff had at the relevant time. The plaintiff was entitled to wear whatever clothing she chose to wear. Given the assertions about the plaintiff’s background and her educational qualifications in Afghanistan, it would seem to me that it is the plaintiff’s case that the plaintiff is an intelligent person who achieved a high degree of academic outcomes in Afghanistan, and surely one can also expect that a person in that category would be able to come to grips with her duties to keep a proper lookout as a pedestrian, wearing dark clothing, at the period of time which is involved. That accords with logic and commonsense, and an acknowledgement of the real world.
Certainly at the same time, drivers of motor vehicles have a considerable responsibility. Motor vehicles are potentially lethal weapons, but they only become lethal weapons when they are driven by individuals, and in this case Mr Alameddine, who was very familiar with the area at the time, certainly failed to keep a proper lookout, and that of course is commensurate with the concession as to liability in any event.
I have found that the headlights were not illuminated. But when it comes to the plaintiff’s responsibilities it was certainly incumbent upon her to keep a proper lookout. So the Court needs to carefully consider the duties owed by the plaintiff and indeed the defendant at the relevant time. The level of culpability needs to be assessed given the issues which have been raised and the contentions of contributory negligence.
This Court is also obliged to consider all of the relevant evidence when it comes to this particular aspect under consideration. In that regard I have paid close attention to the evidence. I note the evidence of Mr Stewart Smith [sic: Stuart-Smith]. His evidence appears from transcript p 571. He was asked in cross-examination, if a vehicle was not driving with its headlights on would he consider that to be effectively, bad driving, inexcusably bad driving, and he said it was inappropriate driving in those circumstances. I note his report as well as the report of Mr Griffiths and certainly those experts have applied their respective minds to a number of features in this case, when it comes to the incident itself, and I note the pronouncements of each of the experts in their respective reports, and in their evidence before me.
Mr McIlwaine [counsel for the respondent] is entirely correct when he says that the plaintiff would have been able to avoid the collision had she been keeping a proper lookout. It is clear here that she was in a position to observe the vehicle, at least for some distance, prior to the incident.
I find that there was a van, as indicated in the evidence, I find that the plaintiff emerged from behind the van and proceeded to cross the road and she had almost finished crossing the road when she was hit by Mr Alameddine’s vehicle. Effectively, and clearly, she must bear some liability for what occurred to her. Contributory negligence has indeed been made out. I am satisfied, however, that due to the manner of driving of Mr Alameddine, the width of the road, and the opportunity which was afforded to him to see the plaintiff, even without his headlights on, in those circumstances, he must bear the greater proportion of liability.
When it comes to liability overall, insofar as the incident on 17 September 2003 is concerned it is clear from the evidence that had the plaintiff kept a proper lookout she would have seen the car. I appreciate, given the darkness at the time and matters of that nature that her vision would have been relatively limited. I am not suggesting by making these pronouncements that her vision was limited by the hijab that she was wearing. I am focussing here upon the ability of the plaintiff, had she been keeping a proper lookout at least to have become aware of an approaching vehicle, not a great distance, but a sufficient distance at the relevant time, in order to avoid what actually happened. On the other hand, given the distance that she had in fact travelled before she was struck, then clearly Mr Alameddine must bear the greater share of responsibility.
So, the relative culpability of each of the participants needs to be considered in that context. The driver was driving a vehicle on a public street where it must have been expected that some pedestrians would be around, or at least the potential for them to be around. So a fair proportion of liabilities in these particular circumstances is seventy per cent to the defendant and thirty per cent to the plaintiff. Damages must be reduced by thirty per cent and contributory negligence has been established for those reasons.”

34 The grounds of appeal in relation to contributory negligence were -

“1. His Honour erred on the issue of contributory negligence:
(a) in adopting the reasoning:
(i) ‘If one is wearing dark, non-contrasting clothing prudence and commonsense dictates that in the circumstances of the events that we have here, namely something leading up to about half an hour after sunset, that person would certainly be expected to keep a very good lookout, having regard to the ambient conditions at the time. This is an onus the Plaintiff had at the relevant time, in that requiring the Appellant in such circumstances to keep a ‘very good’ lookout, set the standard of care to be observed by the Appellant too high.
(ii) The Plaintiff was entitled to wear whatever clothing she chose to wear. Given the assertions about the plaintiff’s background and her educational qualifications in Afghanistan, it would seem to me that it is the Plaintiff’s case that the Plaintiff is an intelligent person who achieved a high degree of academic outcomes in Afghanistan, and surely one can also expect that a person in that category would be able to come to grips with her duties to keep a proper lookout as a pedestrian, wearing dark clothing, at the period of time which is involved. That accords with logic and commonsense, and an acknowledgement of the real world.’

(b) in failing to distinguish between (i) whether the Appellant might be able to see Mr Alameddine’s vehicle travelling towards her in the dark without its headlights on if she was looking out for an unlit vehicle and (ii) whether she failed to exercise reasonable care when crossing the road and being struck by Mr Alameddine’s vehicle which did not have its have its headlights on;

(c) in failing to identify, consider and apply the relevant legal principles as to apportionment of damages;

(d) in failing to properly consider the issue as to whether the Appellant might have been distracted by the fact that the driver of another vehicle, waiting to turn right at the intersection, appeared to be waiting to give way to her to enable her to cross the road safely;

(e) in failing to address the causation issue regarding contributory negligence;

(f) in failing to consider whether at most and if at all, the Appellant was inadvertent, rather than guilty of contributory negligence, in failing to see the unlit vehicle which struck her;

(g) in failing to properly consider the evidence and the Appellant’s arguments in relation to the issue of contributory negligence, and then to give proper reasons for decisions concerning same;

(h) in finding that there was contributory negligence to the extent of 30%, and indeed any contributory negligence, when the proper decision was that there was no contributory negligence.”

Para (a): wearing dark clothing

35 The two passages in (i) and (ii) made up the first paragraph in the passage set out at [33] from the judge’s reasons. The appellant submitted that the judge set the care for her own safety required of the appellant too high, including by taking a standard of care moulded to her individual circumstances rather than that of a reasonable person. It was said that she was entitled to assume that motorists in darkness would have their headlights on and be observing the road rules, and that the judge had wrongly “singled out” the appellant as a wearer of dark clothing when many pedestrians would wear dark clothing. A dark hooded tracksuit was given as one example.

36 Although there was no reference to it, the proceedings were governed by the Civil Liability Act 2002. The provisions of (inter alia) Div 8 of Part 1A apply to motor accidents (s3B(2)(a)). They include s 5R, whereby the applicable principles for contributory negligence are those for determining whether a person has been negligent and the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person. This is part of the common law “and enacted law” as to contributory negligence applicable to claims in respect of motor accidents under s 74 of the Motor Accidents Act 1988.

37 As explained by Basten JA in Council of the City of Greater Tareev Wells [2010] NSWCA 147, there are difficulties in s 5R of the Civil Liability Act. Determining breach of a duty of care and finding contributory negligence are different exercises; in passing, the person who suffers harm does not (or does not necessarily) owe a duty of care to the wrongdoer, and it was not correct for the judge to speak of the appellant’s “duties to keep a proper lookout as a pedestrian”. However, if the judge required of the appellant a standard of care higher than that of a reasonable person in her position, he would have been in error.

38 I do not think he did. It is necessary to look behind the judge’s manner of expression, to the substance of his reasoning.

39 A reasonable person in the position of the appellant, taking care for his or her own safety, should keep a proper lookout for cars on the road before crossing, whatever the time of day and however that person is dressed. Dusk or darkness and wearing dark clothing can enhance the care required of the reasonable person, because he or she will be harder to see.

40 I do not think that in the early part of the paragraph the judge meant more than this, or stated a standard of care higher than that of the reasonable person. Despite the references to an onus, to duties, and to “a very good lookout” (which was also stated as “a proper lookout”), the judge’s touchstones were prudence and commonsense, logic and commonsense, and an acknowledgement of the real world. In the third paragraph of the passage set out at [33] the judge again spoke of the appellant keeping a proper lookout. The language was not ideal, but reading the reasons as a whole in my opinion the judge took a standard of care of a reasonable person.

41 It was not a subjective standard tailored to a person of the appellant’s educational qualifications and intellect, perhaps superior to that of the reasonable person. In my view, in the latter part of the paragraph the judge was concerned, unnecessarily, to dispense with any suggestion that the appellant should not have been expected to adhere to the standard of care of the reasonable person.

42 That motorists may have been expected to have their headlights on and be observing the road rules is a relevant matter to contributory negligence, but “there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties”: Sibley v Kais (1967) 118 CLR 424 at 427 (Barwick CJ and McTiernan, Kitto, Taylor and Owen JJ); see also Tromp v Liddle (1941) 41 SR 108 at 109-110 (Jordan CJ); Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 at [30] (Gleeson CJ and McHugh, Gummow and Hayne JJ). It is a question of fact in the particular circumstance.

43 The appellant should have kept a proper lookout even for Mr Alameddine’s unlit car. And on the evidence, it was not entirely dark. Mr Comert said it was “getting dark”, and he did not have his headlights on. The witnesses were able to see the appellant and Mr Alameddine’s car as it struck the appellant. According to Mr Stuart-Smith, 6.15 pm was at the end of “civil twilight” when large objects could be seen but no detail was observable, and he would expect the pedestrian to be able to see an unlit car. Mr Griffiths referred to “visual difficulty [in] detecting the presence of cars approaching without their headlights on”, but said it was a matter of how difficult (see at [46] below).

44 There was no error in the judge’s finding that, although the appellant’s vision was “relatively limited”, she was “in a position to observe the vehicle, at least for some distance prior to the incident”.

45 I do not agree that the judge singled out the appellant as a wearer of dark clothing. The wearer of a dark hooded tracksuit would have been in the same position.

(b) Headlights on or off

46 The judge found that Mr Alameddine’s car did not have its headlights on. His Honour set out Mr Griffiths’ evidence in which he agreed that a pedestrian would be able to see Mr Alameddine’s car although its headlights were not on “if she was looking for a vehicle without its headlights on”, and added that “its more difficult to see, and then it becomes a matter of how more difficult to see”. The appellant submitted that Mr Griffiths’ “concession” was conditioned upon the pedestrian looking for a vehicle which had no headlights on, and that the appellant “could not be guilty of contributory negligence, in the circumstances, in not looking specifically for a vehicle without its headlights on”.

47 Mr Griffiths did not exclude ability to see the unlit vehicle, and it was not entirely dark: see [43] above. It was not a question of the appellant looking specifically for a vehicle without its headlights on, but of the appellant keeping a proper lookout for cars as she crossed the road, in the circumstances at the time. I do not think the judge was in error in the manner asserted.

(c) Application of relevant legal principles

48 The ground was directed to the fourth paragraph in the passage set out at [33]. The submission was more limited than the ground would suggest. The appellant submitted that the judge “gave inadequate consideration to the moral culpability aspect of contributory negligence”, because Mr Alameddine’s driving without his headlights on was not just “inappropriate”, as described by Mr Stuart-Smith, but “inexcusably bad driving”, as had been put to Mr Stuart-Smith.

49 The extent to which the judge rested his apportionment of responsibility on Mr Stuart-Smith’s description is not clear. In leaving Mr Alameddine with “the greater proportion of liability” he appears to have had regard to the driving without headlights on, although it should not be forgotten that Mr Comert did not have his headlights on. Be that as it may, the appellant’s submission came down to one of error in the level of disapprobation of Mr Alameddine’s conduct.

50 The submissions did not explain why, so far as it was a matter for Mr Stuart-Smith, he should not have been accepted, or why otherwise there was error. I do not think that complaint that the judge did not favour the description of “inexcusably bad driving” even approaches error affecting the apportionment, let alone error in failing to identify, consider and apply the relevant legal principles.

(d) Distraction of the appellant

51 The appellant submitted that the appellant may have heard Mr Comert’s car stopping at the intersection and diverted her attention to it, so that her attention was not on the roadway to her left as she began to cross the road. The judge had referred to a like submission earlier in his reasons. He did not specifically refer to it when coming to his decision on contributory negligence.

52 The submission is difficult to reconcile with the appellant’s stance that she could not be expected to have seen Mr Alameddine’s unlit car. The judge’s failure specifically to deal with it is really explicable, because it had no substance. A judge is not obliged to tally each and every point of no substance put to him or her. That the appellant was distracted is no more than speculation, and in any event the reasonable person would not be excused from proper observation of the traffic on the road he or she was about to cross by notice of a car waiting to turn into the road.

(e) Causation

53 The appellant submitted that her conduct may not have contributed to the accident because she may not have seen Mr Alameddine’s unlit car until too late to avoid being struck, and that the judge had failed to address the issue The judge found otherwise, which was addressing the issue. He found that the appellant would have been able to avoid the collision had she been keeping a proper lookout, and that it was clear that she was in a position to observe Mr Alameddine’s car “at least for some distance prior to the incident”. The findings were well open on the evidence, and no reason has been shown to displace them.

(f) Inadvertence rather than contributory negligence

54 The appellant simply asserted that any failure to see Mr Alameddine’s unlit car in sufficient time to avoid a collision was “excusable inadvertence and not contributory negligence”. This is contrary to the judge’s findings. A finding of contributory negligence was well open to the judge: any other finding would have been astonishing.

(g) Considering the evidence and arguments

55 Although the ground was in general terms suggestive of inadequate reasons, again the submission was limited. The appellant said that it had been submitted to the judge that, when she looked to her left, Mr Alameddine’s unlit car would have been “below the horizon line, and harder to see”, and would have been coming directly towards her with little detectable movement left to right. She implicitly submitted that the judge failed to deal with this submission.

56 We were not referred to where the submission was put, or to evidence supporting it. Mr Stuart-Smith was asked questions about a car being “silhouetted” against the horizon: the evidence did not get to the contrary of his opinion that he would expect the pedestrian to be able to see an unlit car.

57 This may well also have been a point without substance. There is no reason to conclude that, so far as there was anything in them, the judge failed to take those matters into account in finding that the appellant was in a position to observe Mr Alameddine’s car for some distance prior to the incident, and that she was contributorily negligent.

(h) Apportionment

58 The appellant baldly submitted that there had been no contributory negligence, or if there had been the reduction of 30 per cent was excessive. I do not accept the former. As to the latter, no more was said than that Mr Alameddine’s negligent driving “was extreme in the circumstances” and had “assisted” the appellant’s contributory negligence.

59 Appellant restraint in such matters is well established: Podrebsersek v Australian Iron and Steel Pty Ltd (1997) 59 ALR 25 at 29; Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR 321 at [2], [90]; Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Rep 81-731 at [45]-[47]; Tarabay v Leite [2008] NSWCA 259 at [31]-[33]; Turkmani v Visvalingam [2009] NSWCA 211 at [2]-[3], [53]; Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [156]. I am not persuaded that the judge was in error in the percentage reduction to which he came.

60 Before parting with contributory negligence, something should be said of a matter not raised in the grounds of appeal.

61 In the fourth of the paragraphs in the passage set out at [33] the judge said that he had paid close regard to the evidence, and that he “note[d]” the reports and pronouncements of the experts. But he did not disclose what he obtained from considering all the evidence or noting the reports, or what the pronouncements of the experts were, or how whatever he obtained from the evidence, the reports or the pronouncements contributed to his decision-making.

62 Such global statements are undesirable, at the least, in giving reasons for a decision. They are of no assistance to the parties, or to an appellate court, in understanding the reasons, and risk that the reasons are appealably unsatisfactory. Regrettably, in a number of other places in his reasons the judge similarly says that he has had regard to, or has taken into account of, evidence globally identified, or uses like language. That should not be done: relevant evidence should be identified and its part in the decision-making explained.

Damages

63 Twelve grounds of appeal were maintained, some with many sub-grounds. The appellant sought an order for a new trial as to damages. The grounds of appeal were verbose, and often unhelpful (eg “such conclusion was not reasonable in light of the totality of the evidence”). These deficiencies were not alleviated by the written and oral submissions.

64 The appellant alleged that she had suffered a closed head injury “with very severe traumatic brain injury”, and was left with a host of continuing disabilities including psychological impairments. Her case was opened that she had significant physical and cognitive defects and had developed a “severe functional condition” of chronic invalidism as a “very entrenched psychiatric state”, and that she required permanent 24 hour care.

65 Hundreds of reports of medical professionals were put before the judge. A handful of the authors gave oral evidence. Apart from the appellant herself, evidence going to her disabilities was given by her husband Mr Mahmoud Taheer, and her son Mr Abdul Taheer and daughter Ms Taormina Taheer (two of five children in Australia).

66 I have said that the judge’s reasons are discursive. It is necessary to find within them his essential reasoning as to damages, if that can properly be done, despite the manner in which they are expressed. To the point where the judge dealt seriatim with the heads of damage claimed by the appellant, it was to the following effect.

67 When he came to damages, the judge immediately said that there had been a significant attack upon the appellant’s credibility.

68 The appellant had said in her evidence in chief that her health was “perfect” prior to the accident, apart from an ongoing coughing problem. She maintained that when she was with “the various doctors and others” she “told them the truth about her situation and her symptoms”.

69 From medical reports in evidence, the appellant had not had perfect health prior to the accident, nor had she told the doctors and others the truth about her situation and her symptoms. Her pre-accident history “flies in the face of much of the evidence of the plaintiff and indeed much of the plaintiff’s husband”. Apart from the coughing, the pre-accident history included anxiety and depression, vertigo and vomiting, and what her own doctor described as “a constellation of neurological and gastrointestinal problems”. The “clear documented history … by and large undermines and directly contradicts the plaintiff’s evidence as to those matters which undoubtedly affected her leading up to the accident”. The evidence of Mr Mahmoud Taheer, who had said that the appellant had no health problems prior to the accident, and of Ms Taheer was subject to “a serious question over … veracity”.

70 The appellant (and her lay witnesses) had said that after the accident her left side was numb, that her gait was affected and she used a frame, and in particular that she “really does not use her left arm at all”. She could not hold a plate or put washing on the line, and specifically denied that she could fold a doona cover using both arms. Mr Mahmoud Taheer said that she was unable to do anything by herself.

71 But a video of the appellant (Ex 2) showed her folding a doona cover and doing other things with both hands without problem. Other video evidence (Ex BB) was to the contrary of the appellant’s evidence, including her walking without a frame and using her left arm.

72 Here also the appellant had not told the doctors and others the truth about her situation and her symptoms. A particular example given by the judge was that Dr McCarthy recorded that she was “barely able to walk”, and had taken five minutes to cover three metres with the help of her husband and a frame. This was inconsistent with the videos.

73 The judge canvassed medical evidence, referring particularly to that of Dr Buckley (consultant rehabilitation physician), Professor Mattick (psychologist), Dr Jungfer (consultant psychiatrist, and a treating doctor), Dr McCarthy (rehabilitation physician), Associate Professor Spira (consultant neurologist) and Dr Skinner (consultant psychiatrist), but also to a number of other reports. While not gathered concisely by the judge, his references to this evidence included –

there was no muscle wasting or other objective signs of non-use of the left arm (Dr Buckley and others);
there were no injuries on MRI or abnormalities in the brain stem or cerebellum (Dr Buckley and others);
injury to the left side of the brain (as originally revealed) could not account for left sided numbness or loss of sensation (Associate Professor Spira);
numbness was tested by prick testing (Associate Professor Spira);
on assessment, the appellant deliberately exaggerated or feigned cognitive dysfunction (Professor Mattick);
the video Ex 2 was inconsistent with the appellant’s presentation (Dr Jungfer, Dr McCarthy), and with Dr Jungfer’s previous view that the appellant developed physical symptoms from her distress (the judge labelled this somatisation); and
the videos were clear evidence of “a deliberate attempt on the part of the plaintiff to deceive medical personnel examining her” (Associate Professor Spira).

74 The judge did not refer to these matters without regard to the entire views of the experts, or to qualifications they acknowledged, and this is by no means a full account of the matters to which he referred. However, it is clear that he saw them as difficulties for the appellant’s case.

75 Over some pages, the judge then came to a conclusion. He reiterated that it “comes back to the credibility of this plaintiff”. He acknowledged a severe head injury, and said that what was in issue was the results of the injury. He referred again to intentional lack of cooperation on psychiatric testing, and posed whether the appellant was “genuine in her belief”. He considered that the appellant “had a capacity to exercise her mind to decide she was not going to cooperate in that testing”, and was “not satisfied that is in effect some manifestation of her psychiatric injury if there is indeed one”.

76 The nub of the judge’s conclusion was -

“I find that she exaggerated her condition. At the same time, I repeat, she did sustain a significant head injury. There is no pathology that can account for her claimed difficulties with her left hand and arm area. I have already dealt with that so far in this judgment.
There could be a variety of possibilities for the plaintiff’s condition. I must say I cannot rule out the possibility that it may be entirely caused and brought about by this accident, but that is not the test. Again this is not a case where the court can determine its outcome by seizing upon any particular possibility. Again possibilities are relevant and there is certainly more than one possibility in this case. The test is the balance of probabilities and the plaintiff has that onus as I have said on many occasions.”

77 In short, on credibility and other grounds the judge was not satisfied that the appellant had the physical or psychiatric/psychological disabilities she claimed to have. At a later point, dealing with non-economic loss, he said concisely that, while there was brain injury, “I am not satisfied that injury has been sustained to the extent to which has been advanced on behalf of the plaintiff”.

78 The judge said that “with that in mind” he dealt with the heads of damage. He dealt, in the following order, with the heads of damage in the schedule.

79 He dealt first with past out-of-pocket expenses. They had been mathematically agreed at $32,075. Most of this issue was for the appellant’s treatment in hospital, and the judge allowed it as “reasonably and properly incurred”. The balance was for treatment thereafter. The judge said that the respondent asserted that “no causal connection as it were, has been established”. He said that he repeated that it could not be expected that the plaintiff had a complete recovery when she left hospital but she was certainly able to mobilise herself as indicated in the documentary material. He allowed half of the balance on the basis that it was “fair and reasonable to allow something towards that cost”.

80 He then dealt with non-economic loss. The judge accepted that the appellant sustained “a significant head injury” requiring admission to and treatment in hospital, and that “to a degree, bearing in mind the evidence, there was some brain injury”. He said he was “not satisfied that an injury has been sustained to the extent to which has been advanced on behalf of the plaintiff”. His reasons thereafter were no more than -

“I am of the view that in this particular instance, and noting that the maximum sum under the Motor Accidents Compensation Act which can be awarded is $390,000, that in this particular assessment general damages by way of non economic loss should be awarded to the plaintiff in the sum of $150,000 and she is awarded that amount.”

81 He then dealt with past and future loss of income. The judge rejected the claims of $99,450 and $283,050 for the past and the future respectively, on the ground that there was “no satisfactory evidence” or “reliable evidentiary basis”. He found that the appellant’s future circumstances but for the injury “would have been in the educative or similar field, but on a limited ad hoc basis, if that”. He said that he was “mindful of the well established elements of exaggeration insofar as her claims of disability are concerned”. He considered that it was “impossible to arrive at any sensible figure based upon any straight line calculations as such”, and -

“I therefore consider that the fair and appropriate way, recognising what the plaintiff has established in this case on the balance of probabilities, that the appropriate award should be arrived at by way of a modest buffer which would include the past and the future, and any loss of superannuation entitlements. Doing the best I can on the evidence I consider that the sum of $50,000 should be awarded to the plaintiff, which in global terms covers the past and the future. The evidence does not justify a finding that goes beyond that.”

82 He then dealt with past voluntary and contracted care. The judge adverted to s 128 of the Motor Accidents Compensation Act 1999, which imposed a threshold requirement of services for at least 6 hours per week and for a period of at least 6 consecutive months. He accepted that there was “a need for occasional assistance in that early period following the motor accident”, but was “not satisfied that there has been a sufficient amount of evidence which would lead this court to conclude that it exceeds the threshold”. He accepted that “aunties” (it seems relatives or friends) from time to time attended on the house and “effectively did a number of things in the house for the rest of the family”, but said that there was “no objective, reliable evidence which would justify an award of the amount which has been claimed” and that the claim had not “been substantiated to the extent which would warrant an award”.

83 He then dealt with future domestic care. This was the large claim for $5,000,000, and I set out the entirety of the judge’s reasons -

“I note the total claim is based on Dr Buckley’s report of 13 May 2008, and other matters as submitted by Mr Gross. This claim is in the total sum of $5 million. Alternatively, if I do not accept Dr Buckley’s report, it is submitted that I should make an award on the basis that the plaintiff’s husband and family would have to provide these services.
I make the same observations that I have made earlier about the question of care in general terms. I appreciate what has been set forth in the evidence, in particular the evidence of Dr Buckley. This claim has to depend on whether I accept the plaintiff as a witness of truth and others. I need to assess the evidence and determine the outcome of this claim based upon that evidence, it is not a matter for conjecture or speculation. A claim of this nature needs to be assessed as with every other aspect of the claim in this case.
I have taken the view that whilst I accept there is some evidence which would indicate perhaps some lingering problems with the accident, that is having regard to the limited brain injury that she has sustained, that from time to time there may well be a need, but in the way this claim has been cast I am not satisfied that the evidence would justify an award for the amount which has been claimed of $5 million, nor am I satisfied (given the concerns that this court has about the veracity of the evidence) that the plaintiff has satisfied the onus of proof that an award of this nature should be made. So I decline to award the plaintiff any funds at all for that, and I have the same view as to the alternative submission made by Mr Gross.”

84 He then dealt with costs of case management and funds management. After an introductory paragraph, the entirety of the judge’s reasons was -

“As to the costs of the case manager, the plaintiff still needs to satisfy the court on the balance of probabilities that there is a need for that, a need based upon the consequences of the defendant’s negligence. When it comes to the costs of case management, and indeed funds management, I consider it is relevant to have regard to what was said in the High Court in The Nominal Defendant v Gardikiotis , specifically in relation to funds management. It was said by McHugh J at p 54:
‘Damages may therefore be awarded for the expense of managing a plaintiff’s verdict monies when the disabilities are the foreseeable consequence of the defendant’s negligence.’
That pronouncement is conjunctive. Not only is there a requirement that the plaintiff’s disabilities prevent the plaintiff from managing her own funds, but the additional requirement is that it must be a foreseeable consequence of the defendant’s negligence, and that is the problem in this case for the plaintiff when it comes to satisfying the court on the balance of probabilities that she should be awarded anything for future costs of case management and indeed future costs of fund management.
In my view there is no evidentiary basis upon which an award can be made, bearing in mind the principles in Gardikiotis , for any award for future costs of case management, nor fund management, and accordingly I decline to award the plaintiff the respective amounts claimed.”

85 He then dealt with costs of a handyman and gardener assistant for the future. The appellant lived in her son’s home. The judge said that $20,000 was claimed against the prospect that the appellant may need to have some assistance if her husband became unavailable through illness, death or breakdown of marriage “which is a contingency which must be taken into account given the plaintiff’s extreme psychiatric state”. The judge said -

“The reality of the situation has to be looked at in the context of the plaintiff’s current circumstances, and the court is entitled to look to any future circumstances that may have been addressed in the evidence. Any cost of engaging a gardener or handyman in these particular circumstances in my view has not been made out on the evidence. There needs to be a proper evidentiary basis to award such an amount, as indeed there is in respect of every component. There is no evidentiary basis to award that component, accordingly I decline to allow it.”

86 He then dealt with costs of accommodation. The judge said only -

“As far as the future costs of accommodation are concerned, this is cast [sic] on the basis that the court should allow the sum of $96,250 to install carer accommodation within the plaintiff’s existing residence, reliance again is on what is stated in Mr King’s report. I have had regard to that. But again there is no evidentiary basis for that either, I therefore decline to allow it.”

87 He then dealt with holiday expenses for carers. The judge said -

“I appreciate, and some comment has been made about this already, that this has been effectively calculated on the basis of a trip to the Gold Coast, and I appreciate that is a fairly generic way of casting a claim of this nature. Certainly there is nothing to indicate that the plaintiff ever had any intention whatsoever to go to the Gold Coast, but that is not something I need to determine. What is important however is that there is nothing to indicate what the plaintiff’s intentions would have been for the future, nothing at all. To make an award of $50,000 is simply quite inappropriate, totally unjustified, and should not be permitted. Accordingly I decline to award the plaintiff any monetary benefit for that component.”

88 He finally dealt with future costs of medical treatment. The claim was $24,568 as calculated in Mr King’s report. The judge said -

“I have taken this claim into account in the context of the evidence. The difficulty that the plaintiff has in this case is satisfying me on the balance of probabilities that whatever disability she has now has been caused by the motor vehicle accident. In my view that onus has not been discharged for the reasons I have already indicated in some detail in this judgment.
I cannot rule out the possibility of that, but that is not the test. The plaintiff has failed that test. Accordingly there is no evidentiary foundation to make an award for the costs of medical treatment as claimed by the plaintiff. I have already indicated that the court declines to award the costs of future fund management for reasons I have already indicated.”

89 As I have said, there were twelve grounds of appeal as to damages. It is not necessary to set out all of them, or to deal with all matters which could arise under them (which is not to say that all deserved attention).

90 The grounds included, as part of ground 2, that the judge erred “in failing to make findings of fact which disclosed how the allowances made under all the Heads of Claim had been arrived at”, and “in concentrating unduly on making findings adverse to the appellant’s credibility and stating what in the Appellant’s case he disbelieved or rejected, while failing to set out what facts he actually found as to the consequences of the accident”. Ground 3 complained of error in failing to give adequate reasons which “discriminated between” the extent to which the appellant’s symptoms, disabilities, incapacity for work and various needs were caused by the accident, rather than being caused by her pre-existing medical problems.

91 The written submissions did not particularly elaborate on these grounds, but within them and central to them was want of findings as to the actual nature and extent of the appellant’s injury and her disabilities resulting from the accident.

92 I have sought to extract the judge’s essential reasoning, not to endorse it but to enable consideration of his then dealing with the heads of damage.

93 The judge considered that the appellant had exaggerated her condition, and was not satisfied that she had suffered the extent of physical and cognitive disability claimed in her case as a result of the accident. This was a negative finding; it left open that the appellant had suffered a lesser extent of physical and cognitive disability as a result of the accident, or at least disability for a period following the accident. The judge did find that she had suffered a brain injury, also calling it a significant or a severe brain injury. He did not find whether or to what extent the brain injury had affected the appellant and would continue to affect her, albeit not to the extent she had claimed.

94 There are occasional hints in the course of the reasons prior to dealing with the heads of damage. For example, the judge cited, possibly with acceptance, an opinion of Associate Professor Spira that the appellant had made “a reasonable physical recovery from her head injury” and that “her ongoing dysfunction is largely determined by psychological factors including conscious elaboration”; that left an extent of dysfunction caused by the accident. He appeared to accept, from Dr Skinner’s evidence, that there could be “a large number of explanations” for the appellant’s behaviour. He said that it was “difficult to find” evidence establishing loss of earning capacity directly attributable to the consequences of the accident – not that it could not be found. He accepted that “[o]ne could not say that she had an immediate recovery as soon as she left hospital, because there is indeed … clear evidence that rehabilitation was required”. The express statement that the appellant “exaggerated her condition” indicated that there was some lesser condition, and the statement was immediately followed by repetition that the appellant “did sustain a significant head injury”. What is lacking is any attention to finding what the consequences of the head injury were, as well as finding (in the sense of not being satisfied) what the consequences were not.

95 Apart from any individual deficiencies, the judge’s dealing with the heads of damage exposes this fundamental inadequacy.

96 He must have been satisfied that there were some consequences warranting the award of half the costs of past medical treatment after hospitalisation. He must have been satisfied that there was some considerable effect of the brain injury on the appellant, in order to award damages of $150,000 for non-economic loss: that is not consistent with reasonably prompt and complete recovery from the head injury. He appears to have included within the buffer of $50,000 a component for the future, as well as a component for the past, indicating some continuing effect or at least the possibility of a continuing effect of the brain injury. The reasons do not enable an understanding of how the judge arrived at these amounts, particularly in the absence of any finding of what the consequences of the head injury were.

97 There are also apparent inconsistencies. It is difficult to reconcile the award of $150,000 with dissatisfaction that the threshold for voluntary care had not been met. In dealing with future costs of medical treatment the judge appears to have meant that no current disability at all was caused by the accident, but that is difficult to reconcile with the $150,000 or with a component for the future in the buffer. An apparent inconsistency lies in the acceptance that there might be a breakdown of marriage “given the plaintiff’s extreme psychiatric state” – the judge had not been satisfied of a genuine psychiatric state. And the reason for declining an award of future costs of domestic care is particularly unsatisfactory, hinting at continuing effects of the accident but declining an award apparently because the claim to the full extent made by the appellant was not found acceptable. To repeat -

“I have taken the view that whilst I accept there is some evidence which would indicate perhaps some lingering problems with the accident, that is having regard to the limited brain injury that she has sustained, that from time to time there may well be a need, but in the way this claim has been cast I am not satisfied that the evidence would justify an award for the amount which has been claimed of $5 million … ” .

98 It is not necessary to detail individual deficiencies. It cannot be seen how the judge came, on the evidence, to allowing the amounts he allowed, and rejecting the other claims. But it may be added, as examples, that –

out of pockets are not allowed because it is “fair and reasonable to allow something”;
there was not the slightest statement of the basis for the $150,000;
while in relation to past and future loss of income the judge referred to “recognizing what the plaintiff has established in this case on the balance of probabilities”, at no point did he find or state what the appellant had established on the balance of probabilities;
the reasons given for declining to award a number of heads of damage, including the large item for future domestic care are no more than conclusory statements of absence of an evidentiary basis.

99 Some of the grounds of appeal were directed to relatively discrete matters, such as the judge’s application of Nominal Defendant v Gardikiotis (1996) 186 CLR 49, compliance with the so-called rule in Browne v Dunn (1894) 6 R 67 and use of Jones v Dunkel (1959) 101 CLR 298 reasoning. There is no point in dealing with these or other of the many grounds and sub-grounds of appeal. They will be re-addressed in a new trial.

100 The reasons fall short, even on a benevolent approach appropriate to an ex tempore judgment of a judge under the pressures under which judges of the District Court labour, of fulfilling the obligation to give reasons; it is sufficient to refer to the recent summation, with extensive reference to preceding cases, by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[67].

101 The respondent submitted that the judge was “left in a position where he could not be satisfied what it was this accident had caused”. However, had that been so the judge would not have awarded any damages at all. The submission rather points up the deficiencies in the reasons.

102 The respondent also submitted that a new trial (as to damages) should not be ordered because some substantial wrong or miscarriage had not been occasioned: UCPR r 51.53. It submitted that the damages awarded were “consistent with the overwhelming weight of the evidence”, even if the judgment had errors in structure or expression. The appellant was and is entitled to a reasoned decision on her claim. This Court does not have the necessary findings, and cannot make them for itself (nor was it invited to), and is not in a position to find that the damages awarded are the proper compensation for injury suffered in the accident.

103 In my opinion, there must be a new trial, limited to damages but as to damages in whole. It should be as to damages only, since the appeal does not succeed in relation to contributory negligence. It can not sensibly be as to some heads of damage only. A new trial is regrettable, particularly after a lengthy trial, but can not be avoided. The appellant may or may not obtain a better result in the new trial; she may obtain a worse result. It is to be hoped that, before the parties return to court, attention is given to settlement, and they would be well advised to consider mediation which, with a neutral mediator, may assist in achieving settlement.

Orders

104 I propose the orders -

1. Appeal dismissed in relation to contributory negligence but allowed in relation to assessment of damages.

2. Set aside the verdict and judgment for the plaintiff in the sum of $160,132.42 and the orders for costs given and made on 13 February 2009.

3. Order that there be a new trial limited to assessment of damages.

4. Order that the costs of the trial be in the disposal of the judge conducting the new trial.

5. Order that the respondent pay the appellant’s costs of the appeal.

: I agree with Giles JA.

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30/08/2010 - Typo: section should be 3B not 38 - Paragraph(s) 36