Tanya Leonhardt v Louise Hosford

[2010] NSWDC 176

NEW SOUTH WALES DISTRICT COURT

CITATION:
Tanya Leonhardt v Louise Hosford [2010] NSWDC 176
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/294929

HEARING DATE(S):

JUDGMENT DATE:
9 July 2010

PARTIES:
Tanya Leonhardt
Louise Hosford

JUDGMENT OF:
Cogswell SC DCJ      

COUNSEL:
Mr AJ Lidden SC and Ms MM Fraser for Ms Leonhardt
Mr AJJ Renshaw for Ms Hosford

SOLICITORS:

CATCHWORDS:
CIVIL LAW
motor vehicle accident
plaintiff suing defendant for negligence
contributory negligence
credibility of witnesses
question of whether a defendant has any liability to a plaintiff does not revolve around whether someone is completely right or wrong
injuries and treatment of plaintiff since the accident
plaintiff previously made worker's compensation and victim's injury compensation claims
inaccurate and incomplete histories given to treating doctors

LEGISLATION CITED:
Australian Road Rules r 69
Motor Accidents Compensation Act 1999 s 79A, s 126
Victims Support and Rehabilitation Act 1996

CASES CITED:
Fox v Wood 148 CLR 438
Mason v Demasi [2009] NSWCA 227
Sibley V Kais (1967) 118 CLR 424

TEXTS CITED:

DECISION:
Verdict and judgment for the plaintiff in the sum of $550,047.00

JUDGMENT:

JUDGMENT

1. Tanya Leonhardt and Louise Hosford were in a car crash.  Tanya Leonhardt was driving one car and Louise Hosford the other.  They collided at an intersection at St Marys.  Tanya Leonhardt sues Louise Hosford for damages.  She says that the collision was the result of Louise Hosford’s negligence.  Louise Hosford says that she was not negligent at all.  Alternatively, if she was, she says the accident was partly the result of Tanya Leonhardt’s own negligence. 

1. What I have to decide is whether Tanya Leonhardt has satisfied me on the balance of probabilities that the accident was the result of any negligence on Louise Hosford’s part.  If so, I have to decide whether Louise Hosford has satisfied me that Tanya Leonhardt’s own negligence made any contribution to the accident and if so, to what extent.  If Tanya Leonhardt is successful in whole or in part, I will have to assess her damages. 

1. Mr AJ Lidden SC who appeared with Ms MM Fraser for Ms Leonhardt called his client, the plaintiff.  Mr AJJ Renshaw of counsel called his client, Ms Hosford, the defendant.  I will give a short account of the relevant evidence from each of those witnesses.

1. After leaving school in year 12, Tanya Leonhardt went to a business college to learn business and legal systems.  She then secured a job in a legal firm in the suburbs.  Over the following year she moved on to other legal firms, each time improving her position and usually her salary.  She secured jobs with significant responsibility in major Sydney firms which had offices interstate. 

1. She became the human relations manager at a firm called Raj Lawyers in 2003.  The firm had 120 people over three offices in Sydney, Melbourne and Brisbane.  She did another TAFE course.  However she ran into difficulties in Raj Lawyers and left the firm.  She gave notice.  She brought a worker’s compensation claim against them and had the assistance of a psychologist as the result of what she had experienced at Raj Lawyers. 

1. She started to look for work again.  She got a job at Turner Freeman in December 2005 as its Human Relations Manager.  She was responsible for up to eighty employees.  That firm had offices in Sydney, Newcastle and Adelaide.  Her salary was increased to $110,000 per annum. 

1. It is important to note - before I turn to considering the circumstances of the accident which had occurred on 24 January 2006 - some personal information about the background of Ms Leonhardt.  When she was in her late teens or early twenties she was sexually assaulted.  It was obviously a traumatic event.  She got some psychological assistance.  She did not always disclose that to later psychologists or psychiatrists; only, she said, when it was raised by them. 

1. There was another traumatic event in 2001 involving a home invasion and she was assaulted.  She was physically injured and there were emotional consequences as well which involved further psychological treatments.  She brought a claim in the Victims Compensation Tribunal which has only recently been finalised.  She received just over $14,000. 

1. She said before the car accident she had no injuries or disabilities.  She said her emotional balance was satisfactory.  She had finished the psychological counselling as part of the worker’s compensation claim against Raj Lawyers.  When she started at Turner Freeman, which had been in December 2005, she was on no medication. 

1. I should add that she said in giving evidence before me that she was on medication and that the medication can affect her memory. 

1. I will now refer to her account of the accident.  The intersection where the accident occurred was at the corner of Saddington Street and Pages Road in St Marys.  As I said, it happened on 24 January 2006.  It was about 7 o’clock at night.  It is a complicated intersection to say the least.  Both counsel suggested that I have a view of the intersection.  That was a very good suggestion and I went out and had a view of the intersection. 

1. The street that Ms Leonhardt was travelling along was Pages Road.  She was faced with a Give Way sign as she entered the intersection.  The street that Ms Hosford was travelling along was Saddington Street.  She had no traffic sign regulating what she should do.  The opposite side of Saddington Street to Ms Hosford was governed by a series of Stop signs.  A person coming up Saddington Street, entering the same intersection opposite Ms Hosford, was confronted by a Stop sign.  If the person wanted to turn left towards Pages Road, they were confronted a few metres later by another pair of Stop signs.  It was a demanding and complicated intersection for any driver who was entering it.  Ms Hosford acknowledged that there was a Give Way sign facing her.  She intended to go straight ahead through the intersection, staying on Pages Road. 

1. From the direction Ms Hosford was travelling there were no signs, as I said.  It was still daylight and there was nothing stopping her visibility.  It was a fine evening.  Ms Leonhardt’s daughter was in the back of the car on the passenger side.  She had seen Ms Hosford’s car in Saddington Street.  She first saw it when she was stationary.  Ms Hosford’s car was down Saddington Street about four or five car lengths Ms Leonhardt thought.  Ms Leonhardt had a look where Ms Hosford’s car was and then proceeded.  She had seen Ms Hosford before she stopped so she said.  When she saw Ms Hosford she was six or seven car lengths away.  Ms Leonhardt said that she got to five or six kilometres an hour as she entered the intersection.

1. As she entered the intersection she looked and saw Ms Hosford three or four car lengths away.  She could not estimate Ms Hosford’s speed.  Ms Leonhardt kept going straight.  She saw Ms Hosford’s car pull out straight ahead further to turn around her.  Ms Hosford, Ms Leonhardt said, pulled straight in front of her car.  Ms Hosford was going faster than she was.  Ms Hosford was not slowing as she came close.  Ms Leonhardt said she saw Ms Hosford put her hands to her face at the point of collision as if to say “Oh my God”.

1. Ms Leonhardt said as they got out of the car “What the fucking hell are you doing?  Why didn’t you slow down?”  Ms Hosford made no response about her speed.  Ms Leonhardt said that Ms Hosford replied “I am sorry, is your daughter okay?”

1. Mr Renshaw cross-examined Ms Leonhardt about the circumstances of the accident.  He asked her about the significance of the Give Way sign which confronted her.  She said that its significance is that she had to stop at the Give Way sign and give way to cars on the right or in the intersection.  Ms Leonhardt acknowledged that she had a clear and unobstructed view to the left when she was at the Give Way sign.  There was a park there.  While she was stopped at the Give Way she saw a car to the left proceeding along Saddington Street about four or five car lengths back from the intersection.  That was Ms Hosford’s car.  Ms Leonhardt did not recall whether there was an indicator on.  She acknowledged that Ms Hosford’s car was approaching the intersection.

1. When she was stationary Ms Hosford’s car was about four or five car lengths back.  Ms Leonhardt knew that the other car was going into the intersection.  Ms Leonhardt said there was no reason that she, Ms Leonhardt, could not have made it.  She said that it was not her obligation to give way when the car was that far back.  There was no one in the intersection she said when she proceeded. 

1. The other car, namely Ms Hosford’s, was so far back that Ms Leonhardt made an estimate that she had enough time to go through.  She started to proceed when she thought that Ms Hosford was four or five car lengths back.  She thought a car length was about five metres.  That was fairly accurate.  It was agreed between the parties that her own car was 4.8 metres long. 

1. She said the other car, namely Ms Hosford’s, appeared to get faster.  It appeared to speed up closer to the intersection.  It did not decelerate.  She agreed that there was no mention in a claim form that she had filled in of the other car losing control.  The other car deliberately pulled out in front of her to get around into Pages Road.  The other car, said Ms Leonhardt, deliberately courted an accident.  Despite the fact that the other car was in the intersection, it gave no intention of slowing down. 

1. Ms Leonhardt said there were skid marks.  She called the police.  The police did not come because there were no fatalities, no ambulance and no towing.

1. Mr Renshaw called Ms Hosford.  She had been through the intersection countless times.  She had had her P plates for about fifteen months.  She was going to the movies and meeting her friends at about 6.30pm and had left home at about 6 o’clock.  There was a speed hump which she had to go over before getting to the intersection.  The car she was driving had been lowered by a previous owner.  The undercarriage had in some way been lowered.

1. Ms Hosford proceeded towards the speed hump.  Before the hump her speedo said fifty kilometres an hour.  She had looked.  She had to slow down to get over the speed hump.  Otherwise she would scratch the bottom of her car because of the lowered undercarriage.  After the speed hump she thought she was travelling at about thirty kilometres an hour.  She had to slow down because she was approaching the intersection and she wanted to make a right hand turn.  She put her indicator on to turn right.  As she approached she did not look at her speedometer.  She saw a car on the right of the intersection at the Give Way sign.  She moved into the intersection having indicated and then there was a collision. 

1. Ms Hosford was initially very shocked because she did not expect the collision.  She said that she was sorry.  She recalled Ms Leonhardt saying to her “You P plater you were speeding.  What the fuck were you doing?  Why did you not slow down?”  She said Ms Leonhardt was enraged.  She phoned the police.  Ms Leonhardt said to the police that a “speeding P plater has just hit my car and caused an accident.”  Ms Hosford said she told Ms Leonhardt not to lie to the police and Ms Hosford said to her after the phone call “I did not cause the accident.  You had a Give Way sign and you hit me.”  Ms Leonhardt said in reply “You were speeding and you are an inexperienced driver.  I have fifteen years experience on you.”  Ms Leonhardt went on to say “I took the number plate of the vehicle behind me who can prove that the accident was your fault.”

1. Ms Hosford was cross-examined by Mr Lidden SC.  She acknowledged that she was a very inexperienced driver.  She agreed that the countless times she had been through the intersection included as a passenger and that made a world of difference.  The car was registered under her mother’s name.  It was a gift from her mother to her. 

1. Ms Hosford agreed that the intersection posed a particularly different problem to a driver, especially if the driver was inexperienced.  Turning from Saddington Street into Pages Road there are a number of demands which she had to face.  To get a view to the left she had to be much closer to the intersection to see what was on the left than on the right.  She agreed that the entry from Saddington Street into the intersection opposite to her was highly unusual.  That is the one which I have described with various Stop signs.  She said she could see to the left and to the right equally.  She agreed that as you drive out of Saddington Street towards the intersection you have to look three ways.  So she acknowledged there were lots of different observations that had to be made. 

1. As she drove up towards the intersection she went over the speed hump and looked down at the speedometer before and after.  She acknowledged that she can still remember that four years later and that it is not a reconstruction by her.  The reason she remembered is that she was going over a speed hump and the car had been modified and she had to be careful.  She remembered looking at the speedometer on this occasion because she had to explain herself later on and repeat what had happened.  An important consideration in her mind was that the car had been lowered and that meant that she had to slow down over the speed hump.

1. She saw three cars as she came closer to the intersection.  When she saw the three cars she thought she was ten to fifteen metres away.  She did not look at Pages Road before ten to fifteen metres away.  She saw all three cars at once.  She agreed she did not see Ms Leonhardt drive along Pages Road and stop.  She thought the speed hump was about ten or fifteen metres back from the intersection.  That was by a rough calculation but she would agree that the distance could be up to 100 metres.

1. She saw three cars immediately after the speed hump but she then acknowledged that she could not say exactly how many metres away.  She agreed that she travels 8.3 metres a second when she is travelling at thirty kilometres an hour.  She braked after the speed hump then sped up to roughly forty or forty-five kilometres an hour.  She was not looking at the speedometer then because she was indicating.

1. Asked again how long after the speed hump she saw the other three cars she said at a distance from the witness box to the back of the court where her mother was sitting at the time that she was giving evidence.  As she got closer to the intersection she was looking towards her right because she was going to make a right turn.  Before the collision her last memory was Ms Leonhardt’s car stationary at the Give Way sign.  She did not see it move out or cross the intersection at any stage before the impact.  By the time she drove into the intersection it was only Ms Leonhardt’s car of the three cars which posed a risk.  It was stationary the last she saw it.

1. When the collision occurred they were in the intersection.  She next saw Ms Leonhardt’s car when the collision occurred.  As she said “I saw her when she hit me”.  She added that the first time she knew of Ms Leonhardt being in the intersection was when there was a collision.  Ms Hosford’s plan was to manoeuvre from Saddington Street into Pages Road.  She did not look at the other car as she drove into the intersection.  She was looking to her right, I infer, in the direction that she intended to turn because that’s where she was heading.  There was no skidding, Ms Hosford said, and she acknowledged the conversation which had occurred between her and Ms Leonhardt which she gave evidence about in chief.

1. Returning to Ms Leonhardt’s evidence there was a good deal of cross-examination by Mr Renshaw on statements which she had previously made on various occasions and on various topics but directly or indirectly relevant to these proceedings.  I am going to turn to consider that cross-examination at a later stage in this judgment but I propose to assess at this stage the question of whether or not Ms Leonhardt has satisfied me on the balance of probabilities that any negligence on the part of Ms Hosford contributed to the accident.

1. First it has to be observed that Ms Leonhardt went through a Give Way sign to get into the intersection.  The Australian Road Rules provide by rule 69 that a driver at an intersection with a Give Way sign must give way in accordance with the rule.  Rule 69(2) provides that the “driver must give way to a vehicle in, entering or approaching the intersection”.  There are exceptions which are not presently relevant.  The rules say that the obligation of a stationary car is to “remain stationary until it is safe to proceed”.  That is provided for in the definition of “Give Way” in the Dictionary to the Australian Road Rules.

1. Mr Lidden SC said that the provision for remaining stationary “until it is safe to proceed” suggested a mental element and that his client misjudged that it was safe to proceed because Ms Hosford was travelling faster than she had expected.

1. I think that Ms Leonhardt’s misjudgement was more fundamental.  She thought her obligation was to give way only if another car was in the intersection.  She failed to understand that she had a significant obligation to the approaching car.  To my mind that breach of the road rules illustrates her own negligence. 

1. I accept the submission made by Mr Renshaw that in her cross-examination she gave the clear impression, if not explicitly so, that she had to give way to a car actually in the intersection, not just approaching it.  She acknowledged herself that Miss Hosford’s car was approaching the intersection.

1. Mr Renshaw also pointed to two exhibits, namely exhibit X and exhibit Y, which were forms filled out, or documents supplied, by Ms Leonhardt to insurers and those documents disclosed a lack of understanding about her obligations confronted with a Give Way sign.  In fact one of the documents she supplied in an early explanation of the accident in exhibit Y was a document consistent with an intersection having no signs whatsoever.

1. Mr Lidden SC argued that I could not rely on Ms Hosford’s account.  He said that she was not being truthful regarding the undercarriage of her car.  Her mother was not called to corroborate her on that point, he said.  I have no reason to reject Ms Hosford’s evidence about the undercarriage of the car.  Mr Lidden explored the topic in cross-examination, but there was nothing to undermine her account.  As Mr Renshaw argued, the presence or otherwise of the undercarriage as a factor was no more than a contention.  I do not regard the undercarriage as a topic that Mr Renshaw should have called Ms Hosford’s mother to give evidence about, resulting in an inference from her not being called that she could not assist his case.

1. Another challenge made by Mr Lidden SC was to Ms Hosford’s recollection of her own speed.  She had looked at her speedometer and could remember what it said, but did not have a similar recollection for other days.  The answer to this is obvious:  she did not have a collision on other days and therefore have reason to turn her mind very directly to the events that led to the crash.  As she said in evidence, she recalled her speed because “I had to explain and repeat my story and remember events over again”. 

1. Next Mr Lidden SC referred to his client’s immediate complaint at the scene of the accident about Ms Hosford’s speed.  It is true, as Mr Lidden argues, that Ms Leonhardt complained immediately regarding Ms Hosford’s speed.  She also labelled Ms Hosford as a “speeding P-plate driver”.  When Ms Hosford made the fairly obvious response - that Ms Leonhardt had gone through a Give Way sign - Ms Leonhardt immediately pointed out that Ms Hosford was “inexperienced” and that she had “fifteen years’ experience on you”.

1. I do not rely on Ms Leonhardt’s immediate complaint as supporting the proposition that Ms Hosford was speeding.  Ms Leonhardt’s complaints at the scene, in my view, came from a combination of two factors:  she realised that she had gone through a Give Way sign and she could see that Ms Hosford had a P-plate.  In my opinion, it was more a defensive and self-serving assessment of culpability than an accurate observation.  Mr Lidden argues that there were skid marks and debris at the scene.  I myself cannot see any skid marks in any photographs, and the evidence of any debris does not assist me.

1. I need to say something now about the credibility of Ms Leonhardt and Ms Hosford.  Ms Leonhardt is a person who is conscientious, diligent, committed, skilled and successful in what she did, but she has had significant traumatic events in her life.  One feels a good deal of understanding of the difficulties she has had to face.  None of that made her a good witness.  She would not acknowledge the obvious.  It was obvious she had gone through a Give Way sign, but she did not acknowledge her role in the accident.  It had to be someone else’s fault, and a P-plate driver was the obvious candidate.  It was obvious that her document which became exhibit M, a recent statement in support of criminal injuries compensation, omitted relevant references to the car accident and the impact she now says, in this court, that the car accident has had, but she would not acknowledge that in cross-examination.  I expect that her defensiveness is partly a product of the very challenging circumstances of her life.  The drive to succeed in her employment does not allow her to make many concessions.  I do not find her a very reliable witness.

1. On the other hand, Ms Hosford was an impressive witness.  She was straightforward and gave me no indication of avoiding questions.  On the contrary, she thought carefully about some questions before answering them and appeared to be trying to be accurate.  She made various concessions.  As Mr Lidden pointed out, she acknowledged that she may not have looked at the speedometer after the speed hump when she previously thought that she had.  She acknowledged that her estimate of distances was not very good.  I find her to be a reliable witness.

1. The findings which I have to make on the question of whether a defendant has any liability to a plaintiff does not revolve around the question of whether someone was completely right and someone else completely wrong.  If Ms Leonhardt had been prosecuted for failing to give way at a Give Way sign, I would have no reasonable doubt of her guilt.  These days, since apportionment legislation, the findings which I have to make in a case such as this are more an exercise in apportionment, because the question is whether there is any negligence on the part of a defendant which contributed to the accident.  Then I determine the extent to which a plaintiff’s negligence also contributed to the accident.

1. As I said, Ms Hosford was an impressive witness and she did not attempt to conceal the truth.  Mr Lidden’s cross-examination elicited from her some aspects of the accident which, to my mind, point to some fault on her part, probably the result of her inexperience. 

1. Whilst on one view she was quite entitled to enter the intersection relying on another car complying with a traffic sign, a driver should not make that assumption.  Other drivers do silly things on occasions and they may not comply with traffic signs.  One as a driver has to be ready for the unexpected.  It was a challenging intersection that Ms Hosford was entering.  It confronted a driver with the need to take account of many considerations: she frankly acknowledged that.  A few metres after the speed hump - itself about 100 metres from the intersection - she saw three cars which she had to make an assessment about.  She came off the speed hump at about 30 kilometres per hour perhaps increasing to 40 to 45 kilometres per hour.  It would have taken her about ten seconds or so to reach the intersection.  Although she was looking to her right and indicating a right turn I infer that she was looking more in the direction of that part of Pages Road to which she was heading.  She did not see Ms Leonhardt’s car move out or across the intersection at any stage before the collision.  As she frankly acknowledged, the first she knew of Ms Leonhardt’s car in the intersection was when they collided.  I am not sure whether Ms Hosford was going too fast as Ms Leonhardt asserted but Ms Hosford was not paying enough attention to what Ms Leonhardt’s car might do. 

1. It is important here to refer to what the High Court has said in a case about a collision at an intersection where one driver had a regulatory obligation to give way to the other.  The case was Sibley v Kais (1967) 118 CLR 424. The court comprising Barwick CJ and McTiernan, Kitto, Taylor and Owen JJ delivered a joint judgment. At 425 their Honours said that one of the drivers “as he approached the intersection, found no traffic seeking to enter the intersection from his right hand side but, as the trial judge found, was rather later in looking to his left.” There was an obligation on the other driver being to the left of that driver to give way to the first driver.  Their Honours had to deal with the issue about the responsibility of a driver who has the benefit of the other car being confronted by a traffic sign to still exercise care.  Their Honours said at 427 the following:

   “The common-law duty to act reasonably in all the circumstances is paramount.  The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties...Whether or not in particular circumstances it if reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case.”

On the same page their Honours went on to say the following:

“The obligation of each driver of two vehicles approaching an intersection is to take reasonable care.  What amounts to ‘reasonable care’ is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.”

1. As their Honours said, I must make a judgment in all the particular circumstances of this case bearing in mind an obligation for a driver to have their car so far in hand that they can bring it to a halt to avoid an impact if the other car, contrary to its obligation, might proceed into an intersection. 

1. To my mind Ms Leonhardt has satisfied me on the balance of probabilities that there was some negligence on the part of Ms Hosford which contributed to the accident.  However, Ms Leonhardt’s own negligence was a substantial contribution to the accident.  She either did not see Ms Hosford at all, an explanation which Mr Renshaw advances which has some force, or she so completely misjudged the speed and location of Ms Hosford’s car that she went ahead in any event and entered the intersection.  She ignored her obligation to give way to a car approaching the intersection.  The accident was mainly her fault.  I would assess that the accident was the result of her contributory negligence to the extent of sixty-five per cent. 

I think that is a natural break, what I might do now is just take the morning tea adjournment and then come back and deliver the balance of the judgment.

SHORT ADJOURNMENT

1. Mr Lidden SC asked his client about her injuries and treatment since the car accident.  She said at the car accident she felt pain in her lower back and a twinge in the neck.  The first doctor she saw was Dr Kyaw.  She saw that doctor the following day.  That doctor was not her usual doctor.  She then saw Dr Kwan.  She was referred for physiotherapy.  The accident occurred on her way from work so she made a worker’s compensation claim. The medical expenses were paid for a long time.  Dr Kwan referred her for x-rays, physiotherapy and recommended that she restrict her daily work hours and limit her days.  He recommended that she work part time.  He referred her for a CT scan and an MRI of her back and he referred her to a pain management clinic and to a Dr New and a Dr Dowler.  Dr Kwan prescribed oxycontin.

1. There were some reports by Dr Kwan which were tendered and became part of exhibit Q.  Dr Kwan expressed the opinion that it would appear that the accident had caused a tear which had been detected on the MRI, in the L5/S1 disc, “and this was causing the patient’s lack of improvement in her physical signs.”  Dr Kwan in a report of 27 March 2008 to Ms Leonhardt’s solicitors said that unfortunately the pain from the disc bulges had worsened and noted that she was suffering from severe constant pain and a co-morbidity of depression.  Dr Kwan diagnosed her with chronic pain syndrome with associated depression “due to disc lumbar and sacral disc bulges, the MVA of 24/1/06.”  He expressed the opinion that under the “current regime, she could achieve some degree of pain relief.  It is hoped that surgery will give more substantial relief - but she has a permanent condition.”

1. After the accident Ms Leonhardt worked for the balance of January 2006.  She worked with her injury.  She was with, as I have said, Turner Freeman Solicitors as the human relations manager.  In February 2006 she was still working an eight hour day, three or four days a week.  Physically the pain was bad.  Her services were terminated by Turner Freeman on 4 April 2006.  She said she has never been terminated or dismissed from employment in her life, apart from Turner Freeman. 

1. She saw Dr New, the orthopaedic surgeon, who prescribed bed rest for one month.  Dr New, in a report to Dr Kwan dated 3 April 2006, confirmed the MRI showing a dehydration of the L5/S1 disc and indicated that he referred her to further tests.  In a report of 17 May 2006 he indicated that while her latest MRI confirmed that she did have a dehydration at that disc level “there is no surgically de-compressible lesion which exists and therefore she does not require my services at this time.”

1. She was referred to Dr Sundaraj, a pain consultant with the Sydney West Area Health Service at Nepean hospital.  She was again prescribed oxycontin and an antidepressant because of her depressive reaction to her circumstances.  She was referred to a psychiatrist.  Her medication included some narcotic medication.  She saw a psychologist called Karen Edwards for counselling.  In 2007 she saw Dr Nair, a neurosurgeon.  She was also referred to another neurosurgeon later on. 

1. On 1 May 2007 was Leonhardt was admitted to St John of God Hospital.  She had attempted suicide.  She was in there for three weeks and was treated by a psychiatrist called Dr Bertucen. 

1. Despite her disabilities she got herself a job with a firm called Hicksons Lawyers on 31 July 2007.  She only lasted a couple of months because she could not keep it up.  She found herself working twelve to fourteen hours a day.  Her salary was what she had been earning before, namely $110,000 per annum.  She had not told them about her injuries and disabilities. 

1. In 2008 she changed to Dr Seex, another neurosurgeon.  He talked to her about a fusion operation.  She agreed to the operation which Dr Seex makes clear in a report was after some detailed discussions and consideration.  On 3 November 2008 at Nepean Private Hospital Dr Seex performed what is described as a “L5/S1 anterior interbody fusion”.  It involved a graft from the iliac crest and something called a synfix cage.  Ms Leonhardt said that after the operation her pain increased significantly.  She said in evidence that the pain had become one hundred times worse.  There was no improvement in the pain going into her leg and she was left with a scar. 

1. She was referred to another doctor, an orthopaedic surgeon called Dr Rizkallah.  She saw that doctor soon after the surgery.  She in fact saw him about the bone graft which had been taken from her iliac crest in the surgery.  Dr Rizkallah did not regard it as appropriate to undertake any surgery himself.  As Ms Leonhardt recalls Dr Rizkallah said that he would repair, or deal with her hip once her back was satisfactory.  That is consistent with a report of Dr Rizkallah dated 25 February 2009, which is part of exhibit A.

1. In December 2009 when Ms Leonhardt saw Dr Seex he said that she should return to him in six or twelve months time and if it was necessary and appropriate he would operate again.

1. In the meantime Ms Leonhardt has moved to Port Macquarie because her parents had relocated there.  Up there she is seeing a Dr Brett Newell.  Her right hip is very tender.  Her emotions she described as being like a rollercoaster.  She does not feel fit, either mentally or physically, for any of the work that she used to do as a human relations manager, or as a practice manager.  She does not see herself able to do such work in the foreseeable future.  She has two children, Paige is aged nine and in year 3 and her son Tyler is aged five and in kindergarten.  Paige has some significant developmental problems.  She finds doing house tasks difficult, such as using the vacuum cleaner, ironing, cleaning and mopping floors.  She copes, as she said, by grinning and bearing it and taking more medication.  She cannot do the lawn but pays someone else to do it.  She pays for domestic assistance.  She would need domestic assistance about six to eight hours a week, she estimates. 

1. Ms Leonhardt’s solicitors referred her to a consulting orthopaedic surgeon, Dr Peter Conrad.  He provided a series of reports over the years to her solicitors. He diagnosed her principal injury as an injury to her lumbar spine associated with damage to the L4, L5 and L5/S1 disc spaces causing some protrusions.  He assessed her, back in 2006, as not fit to do her work full time as a human resources manager, but may be fit for light work.  He saw her again after the operation.  In a report of 1 July 2009 he noted that she had had a spinal fusion operation, and noted her complaint that it had not helped her, but if anything her condition had worsened.  His opinion was that as a result of the car accident she had the operation which had not improved her and she had developed what he described as “very severe specific radiculopathy in the L5/S1 distribution and hypoaethesia in the right leg”.  She needed conservative treatment, rehabilitation, physiotherapy on an ongoing basis.  She is not fit, he thought, to do full on work in a legal firm in a full time capacity.  She might be able to do at most twelve hours a week of light office work.  She has a limitation in what she can lift.  He thought that she might need about eight or ten hours of home care assistance. 

1. I should add that in a report to Dr Kwan dated 15 January 2010, Dr Seex, her treating neurosurgeon, noted that she continued to have pain in her back centred in the right hip joint.  He said, as Ms Leonhardt confirmed, that he would see her at the end of this year and do a CT scan to confirm the stability of the fusion, although he did not think that further surgical intervention would be appropriate.

1. Before passing to the cross-examination of Ms Leonhardt I should refer to the medical evidence tendered on behalf of Ms Hosford.  There was a report by a neurosurgeon called Dr Davies, dated 15 June 2007.  That report was directed to Ms Leonhardt’s employer’s workers compensation insurer and the doctor expressed the opinion that she was still suffering from the work related injury, namely the effects of the car accident.  That doctor thought that there probably had been an aggravation by the accident of previous degenerative changes in her lumbar spine.  The doctor thought that she would be capable of undertaking some light duties employment at that stage and that her prognosis was guarded at that stage.  Ms Hosford also relied upon a report by a Dr Richard Evans, dated 30 June 2009 which had in fact been served upon them by Ms Leonhardt’s solicitors.  Dr Evans thought that her fitness was “difficult to assess.  If one were to accept Ms Leonhardt’s presentation, she would be substantially incapacitated, and unfit for any work.  If one were to go by the objective findings, she would be fit for work that does not require much bending or twisting of the back or lifting of weights heavier that eight kilograms.”  He thought that her condition was not likely to change much “unless further procedures are performed”.  He noted that she had suffered from depression in the past which was “presumably colouring her perception of her symptoms, perhaps making them worse than they otherwise would be”. 

1. Otherwise Ms Hosford relied upon various medical certificates from the past. 

1. I should add, which I omitted to in referring to the medical reports which were tendered as part of exhibit Q on behalf of Ms Leonhardt, that there were some reports from Dr Bertucen, the psychiatrist whom she saw, and Dr Bertucen in a report of 25 June 2008 also diagnosed chronic pain syndrome “with features of depression, anxiety and sleep disturbance, stemming directly from the effects of the MVA of January 2006.” Her chronic pain has led to impaired mobility, weight gain, decreased self-esteem arising from compromised parental functioning, and financial stress. The doctor thought that in her then state “she would be incapable of working 4 - 6 hours per day in view of her inability to sit or stand for long periods.” He thought that she demonstrated good insight into her symptoms. 

1. It is significant to note that when he first saw her Ms Leonhardt “stated she had no psychiatric symptoms or interventions prior to the MVA of January 2006.”

1. Dr Bertucen, in a report of 10 September 2009 which was sent to Ms Leonhardt’s solicitors, said that he had most recently seen her on 25 August 2009 and had seen her regularly before then.  He did not consider that she would be able to return “full-time to her pre-injury duties as yet, she may be able to attempt one or two days of sedentary pre-injury type duties within the next one or two months”.  He thought that her situation had changed somewhat over the years.  Some years before that report “lower back pain was the major limiting step preventing her return to full-time work.  Currently I feel it is chronic sleep disturbance and its psychological consequences (depressed mood, impaired concentration and memory, physical clumsiness) which is the most salient clinical concern at present.”  He felt that if the issue was to be addressed effectively it would immeasurably improve her mood and mental state and improve her prognosis.

1. In being cross-examined by Mr Renshaw Ms Leonhardt acknowledged that she had seen Dr Evans.  She was referred to some history which was contained in Dr Evans’ report and acknowledged that it did not reflect the case, the truth, but said she would not have told him a wilful lie.  She also was referred to history taken by Dr Bertucen in a report of 25 June 2008 about having “no psychiatric symptoms or interventions” before the car accident.  She acknowledged that that also would have been incorrect.  Dr Evans’ history was to a similar effect.  She acknowledged that both Dr Evans and Dr Bertucen must have got the history wrong. 

1. She was cross-examined extensively about what became exhibit M.  Exhibit M is a document which is dated 19 January 2010.  It is a statement by her in support of an application for compensation under the Victims Support and Rehabilitation Act 1996 for victim’s injury compensation as a result of the home invasion and assault which occurred in 2001.  Mr Renshaw cross-examined her extensively about that statement.  She said that the statement does not attribute all of her psychological problems to the event in 2001, however she acknowledged that the only cause referred to in the statement is the 2001 event.  She insisted that her psychological problems were not the result of the 2001 event alone.  Mr Renshaw put to her that that could be the only explanation for paragraph 7 of exhibit M which says that the “statement outlines the various methods of treatment I privately undertook to provide help in my life after the distress of the incident”.  The incident is the event of 2001.  She acknowledged that the most distress at that time had come from the events of July 2001.  She pointed out that throughout all of the time up to and until the car accident she had been at work and busy.  She said that she was far worse than she was back then.  She said that when she composed exhibit M she was on a lot of medication.  She is on more medication now, so Mr Renshaw asked, rhetorically almost, why are there not more errors now.  She said her grasp of details was not the best then.  She said the statement was made in a rush and she did make an effort to attend to the truth.  She had a solicitor acting for her but she spoke to the solicitor’s assistant who said she should prepare a statement and send it to her.

1. Mr Renshaw argues that I should take exhibit M as it reads, in its terms, and give it the value which it appears to have on its face.  It would appear, he argues, that Ms Leonhardt says to me that her current disabilities are caused by and the result of the car accident, whereas in a document signed - indeed sworn or declared before a JP in accordance with the Oaths Act earlier this year - she attributed her current symptoms to the home invasion in 2001.

1. Mr Renshaw pointed out that Ms Leonhardt refused to answer questions directly regarding the impact of exhibit M.  He pointed out that some of the paragraphs in the statement - in particular paragraphs 48 to 54 - described what he said was a chronic inveterate condition which had an impact on all aspects of her life. 

1. There was no claim made for expenses, that is apparent from a form which is part of exhibit M.  That is because, Mr Renshaw argues, in the document she refers to consultations with, amongst other people, a psychologist called Mr Chris Proberts.  Mr Proberts provided reports to the workers’ compensation insurer of her employer in 2005, namely Raj Lawyers, in respect of whom, as I said earlier, she had a worker’s compensation claim resulting from circumstances of her ceasing employment there.  The impression given by the document, Mr Renshaw argued, was that the treatment by Mr Proberts was in relation to the events which occurred in 2001.  I think that is a fair interpretation of the document.  I am not convinced that Ms Leonhardt deliberately attempted to deceive the Victims Compensation Tribunal.  That would be a significant finding to make and I take into account the standard that I need to apply in reaching a conclusion about a person being dishonest or fraudulent.  But nevertheless it, at the least, demonstrates that it was a, to some extent, disingenuous attempt to supply information in support of her then claim.  Mr Renshaw argued that exhibit M means that I cannot accept Ms Leonhardt’s word without any external corroboration and that I should reject everything that she says. 

1. In addition Mr Renshaw, in cross-examining Ms Leonhardt, took her to a history that she had given to a psychologist called Dr Geoffrey Fox.  In a report dated 18 July 2009 he attributed her disabilities to the home invasion in 2001.  Ms Leonhardt acknowledged that she told him that her disabilities were a result of the 2001 event.  She disagreed that she did not want to alert anyone that she had seen someone else in respect of her worker’s compensation claim.

1. In the history to Dr Fox she was asked to point to anything which would have alerted Dr Fox to any psychological events leading to trauma apart from the events of 2001.  She agreed that there was no mention of this car accident which is the subject of this case or of the worker’s compensation circumstances associated with Raj Lawyers.  She did not accept that the statement was intended to deceive.  She had received counselling for various issues.  She did not know who paid for Mr Proberts but she said she did not pay for him.  She saw Mr Proberts and Karen Edwards for different reasons and on different issues.  She said the treatment was confidential between Mr Proberts and her.

1. It was conceded on behalf of Ms Leonhardt that Mr Proberts’ reports said that she needed continuing treatment as a result of the events of 2001. 

1. Cross-examined about her history she did not especially remember which doctor she spoke to and for what reasons.  It is possible that she raised all traumas with all doctors.  She said Dr Bertucen never took notes.  It was very much a listening session.  She was asked in detail about various passages in her victim’s compensation statement (exhibit M).  As I have said she said she had never been instructed about how to draft such a statement.  She did not intend to assert that all of the consequences referred in that statement were the effects of the 2001 event.  As I have said that is a very disingenuous position to take in my opinion.  So is her assertion in cross-examination that that statement did not only deal with the events of 2001 but with everything from 2001 to date.  It was, she said, a broad spectrum approach.  She said that the car accident was far more catastrophic in its effects than the 2001 event.

1. She was cross-examined about when going to Turner Freeman and not discussing what had happened previously - when she got her job with Turner Freeman - the events at Raj Lawyers.  She said she did not feel obliged to reveal negative information.  Asked about her finishing employment at major firms she acknowledged that she finished her employment at Freehills by mutual agreement and at Ebsworths by mutual agreement.  She acknowledged that her resume which was an exhibit in the case gave no indication of what Mr Renshaw described as disastrous relationships, fallings out and litigation.  That is not an unfair description of her departure from Raj Lawyers.  Nor did she disclose her previous problems, she acknowledged, to Hicksons Lawyers.

1. Mr Lidden SC called as a witness in his case a good friend of his client’s.  Her name was Tatjana Meloni.  Ms Meloni has known Ms Leonhardt since they were aged six.  Ms Meloni said that before the sexual assault her friend’s personality was bubbly and outgoing.  She became emotionally distressed by the trauma of the sexual assault.  Ms Meloni thought that lasted about six months.  Then her personality and life came back together and she moved on.  Her bubbly and happy personality returned.

1. Then there was the home invasion incident in 2001.  She recalled Ms Leonhardt going back to counselling, but again, as Ms Meloni said, her friend bounced back.  It took about one or two years to bounce back.  She was a little stressed by what had occurred at Raj Lawyers which resulted in her departure from the firm and the claim for compensation as well as the hours she worked.

1. After the car accident Ms Meloni saw Ms Leonhardt about five or six times over three months.  She thought there were dramatic changes.  Her friend was very reserved, very angry, emotional and constantly complained of pain.  Ms Meloni said that she was not the same person that she used to know.  Emotionally Ms Leonhardt was a very cranky and a nasty, angry person.

1. She remembers receiving a telephone call from Ms Leonhardt about a drug overdose.  Her friend was not herself.  She had, she thought, never been like that before the car accident.  Ms Meloni visited her in hospital when she was admitted after the suicide attempt.  Her friend was in a coma and not doing too well.  She had pain in the back and the legs.  Six months after the surgery Ms Leonhardt’s pain had not got any better so far as her complaints to Ms Meloni were concerned.  If anything it was worse.  She was not coping well emotionally and Ms Meloni described her as a totally different person.  She observed that she could not walk because of the pain and her tolerance was not good.  Ms Meloni will remain as her friend and will help her but their relationship has changed. 

1. In cross-examination Ms Meloni acknowledged that it took a couple of years from the assault for her friend to get back to normal, but Ms Meloni said by 2004 Ms Leonhardt was more or less the same person.  Before the car accident she recalled Ms Leonhardt was generally cheerful.  She acknowledged that while she was at Raj Lawyers she appeared to be stressed and slightly depressed. 

1. In his submissions Mr Lidden SC said that Mr Renshaw had taken what he described as the “credit point”, which was based on exhibit M.  That document - or cross-examination about it - Mr Lidden argued does not show that his client cannot work for psychological reasons because of the home invasion incident of 2001.  He said that it has to be taken into account that exhibit M was written by a person with a mental illness taking medication.  It does not change the medical case.  He acknowledged that exhibit M was what he described as a mess.

1. He went on to argue that there was really no orthopaedic issue at all.  The neurosurgeons or orthopaedic specialists who provided reports for his client were not cross-examined.  The only report of an orthopaedic specialist nature relied upon by the defendant was the early report by the neurosurgeon Dr Davies. 

1. Mr Lidden went on to argue that there was an overwhelming psychiatric case.  There had been no cross-examination of Dr Bertucen.  He led evidence of the fact that Ms Hosford’s solicitors had referred his client to a psychiatrist called to Dr Maguire but had not tendered any report.  I infer from that that nothing said that the report - or the opinion expressed in whatever way it was by Dr Maguire to Ms Hosford’s solicitors - would not be of assistance to her in these proceedings.

1. There was nothing, Mr Lidden argued, to support Mr Renshaw’s argument that Ms Leonhardt’s psychological condition was the result of the events in 2001. 

1. He argued that I have to exercise care in the reliance I place on histories given by his client to medical practitioners.  He referred me to what Basten JA had said in Mason v Demasi [2009] NSWCA 227. One has to be particularly careful about reaching conclusions about a witness’ reliability based upon histories given by the patient to doctors. One is not present at the time when the histories are given. It is difficult to assess the condition of the patient and the focus of the consultation which would depend very much upon the questions asked by the medical practitioner and the focus of the medical practitioner’s speciality. It would also depend upon the circumstances of the consultation whether it was extraordinary or urgent. This is particularly so, argued Mr Lidden, in a case where there is a psychological or psychiatric component.

1. I think the truth regarding exhibit M and other histories which omit significant detail lies somewhere between Mr Renshaw’s position and Mr Lidden’s position.  Mr Renshaw’s position was that I should reject everything which Ms Leonhardt says without any corroboration.  She cannot attribute her symptoms to one cause and then attribute them to another cause altogether. 

1. Mr Lidden argues that there is simply no medical support for any contribution to her current symptoms from the home invasion in 2001.  He points out that there has been no cross-examination, for example, of Dr Bertucen on these issues.  Whilst there is some force in the submission that there has been no cross-examination of Dr Bertucen - so that it is difficult to assess what he would say; indeed I cannot make any assessment - it is clearly obvious that, as I said at the commencement of these reasons for judgment, Ms Leonhardt has had a number of significant traumatic events in her life.  They include at least three significant events: a sexual assault, a home invasion and a compensation claim against a former employer.  All three would have produced psychiatric and psychological conditions.  In respect of the home invasion she made a claim for victim’s compensation.  In respect of the employment she made a claim for worker’s compensation.  Both claims were supported by an account given by her, either to health specialist or to tribunals, of her symptoms.  The significance of exhibit M in my opinion is that clearly in her own mind she attributes a significant component of her disability to the home invasion in 2001.  I think given the absence of knowledge by Dr Bertucen, for example, of the detailed account which Ms Leonhardt has given in exhibit M that it must reduce to some extent the value and weight of his opinion. 

1. Nevertheless so far as her physical conditions are concerned, Mr Lidden must be right in what he says.  His client has obviously had a significant back injury.  The medical evidence points to the car accident as either causing it or being a significant aggravation of a previous injury.  It resulted in surgery.  She still is disabled, a condition which is supported by medical specialists.  There is no serious challenge made to her medical condition so far as her physical state is concerned. 

1. Given the evidence of Ms Meloni, which I accept, the accident which is the subject of this case clearly had a significant impact on Ms Leonhardt.  Ms Meloni was not significantly shifted in cross-examination.  The impact of her evidence was that there was a very significant change in her close friend from before the accident to after the accident.  I should add that I note that her employment history indicates - that so far as at least the home invasion was concerned - she was able to return to full time work between then and the car accident.  She made an attempt to continue work after the can accident, but those attempts were unsuccessful. 

1. I am of the view that her attempts were unsuccessful because of the effects of the car accident.  Ms Meloni also describes Ms Leonhardt’s mood, behaviour, attitude and personality changes.  Clearly the evidence supports that there has been some significant psychological or psychiatric result from the car accident. 

1. True it is as I said that I must reduce the significance of the weight I place upon the medical diagnosis attributing that to the car accident, but nevertheless it is clear that there has been a significant change.  I do take into account what was said by the Court of Appeal in Mason v Demasi so far as the weight that I must be careful to attribute to histories given to doctors. 

1. Although as Mr Renshaw argues, no treating doctor says what her current capacity is, there is a recent report from Dr Seex which is clearly consistent with a view that she is to be reviewed and is still to remain under his care with the possibility, although unlikely, of future surgery.  In addition there is a relatively recent report from Dr Conrad, which I accept - supported as it is by Ms Meloni – supporting the current complaints of Ms Leonhardt. 

1. I am not surprised by the observation made by Dr Evans, which was referred to by Mr Renshaw, about the possibility of Ms Leonhardt exaggerating.  It may well be that her personality is such that she attributes much of her condition to the event which is the subject of the current claim.  The current claim in this case is the car accident, but as it happens it is a claim which has, as Mr Lidden argues, very significant support so far as orthopaedic and neurosurgical evidence is concerned as well as the psychiatric support. 

1. My notes do not reveal that Mr Renshaw dealt in any detail with the calculation of the claim for damages made on behalf of his client by Mr Lidden.  It is fair to say that Mr Renshaw’s attack dealt, with some effectiveness, with the reliability of Ms Leonhardt so far as her account of the car accident is concerned and so far as her reliability as a witness and historian was concerned.  His focus was on her account of the car accident and the significance of exhibit M.  He also canvassed the medical evidence, which I have referred to and some aspects of her employment history. 

1. Turning to the question of damages, so far as damages for non economic loss are concerned, I accept that the severity of the non economic loss of Ms Leonhardt is at least fifteen per cent of a most extreme case.  I make that assessment because of her obvious significant back injury and psychiatric condition related to the car accident.  In my view her percentage is in the region of eighty percent, so that the general damages should be as assessed by Mr Lidden of $325,000. 

1. I would allow the estimate of past out of pocket expenses, as per a schedule which was put before me, being expenses paid formerly by Medicare of $4,189 and formerly paid by the workers’ compensation insurer of $126,955 and other expenses of $1,028.25. 

1. Mr Lidden asked me to allow $150,000 for future out of pocket expenses.  He said there may be a possibility of further surgery and psychiatric treatment for his client who has a fifty-three year life expectancy and has already had to spend, although via insurers, a sum over $130,000.  I regard that estimate as too high.  That is for the reason that surgery, as on the evidence as it presently stands, is unlikely and the psychiatric evidence is consistent with some resolution of Ms Leonhardt’s symptoms.  I would regard an amount of $50,000 as an appropriate allowance for future out of pocket expenses. 

1. An amount was claimed for past wage loss of $342,901.  The calculation is based upon an estimate of about just under four and a half years at an amount of $1,641 net per week.  That comes to, according to MFI 17, $370,340.  After the deduction of earnings from Turner Freeman of $18,546 and from Hicksons of $8,893 that produces $342,901 and I allow that amount. 

1. I also allow a component of superannuation on that amount of $342,901 at eleven per cent, so the allowance is $37,791. 

Sorry I have just noticed a calculation error that I need to attend to, what I will do is I will take lunch now, come back at twenty past two.  I just shouldn’t proceed without checking this.

I will finally give the figure for future economic loss, superannuation, Fox v Wood and domestic assistance and then I think you do that calculations.

LUNCHEON ADJOURNMENT

RENSHAW:  Before your Honour resumes, there are a couple of matters that I’ve discussed with my learned friend and we feel that we should draw to your Honour’s attention. 

They are these and that is under the Motor Accidents Compensation Act once you pass the threshold general damages are at large, they’re not done on a percentage basis, but they’re subject to a cap, that’s the first thing.

HIS HONOUR: So if we look at MFI 17 I see, so I was looking at s 79A of the Motor Accidents Act.

RENSHAW:  It’s the Motor Accidents Compensation Act.

HIS HONOUR:  That explains a bit.  What section?

RENSHAW:  Well I can’t presently off the top of my head tell your Honour that except that it’s not contentious that what is required is greater than 10 percent whole person impairment under the AMA guidelines number four which is the MAS, so called MAS Assessment and here your Honour knows that there was a MAS assessment of 15 percent so it’s over 10--

HIS HONOUR:  That’s why you didn’t take issue with it.

RENSHAW: No that’s why we didn’t take it and then the damages are assessed as at common law. That’s the first thing and that’s probably not troubling except that we wouldn’t want your Honour to be misled by us. And the second thing is this, that the question of past economic loss and future economic loss is governed by S 126 of the Motor Accidents Compensation Act.  That requires your Honour to engage in an exercise of looking at the most likely future economic prospects of the plaintiff but for the accident.

The reason that we raise that with your Honour - and I think I’m fair in saying this to my learned friend, he of course not only has a voice but is capable of articulating it - is that your Honour may need to consider in the light of inter alia - this is just to assist your Honour - in the light of her work history with Raj and Turner Freeman what her prospects would be apart from the accident of being re-employed in the same industry and under what terms.

Now your Honour has averted in your Honour’s judgment so far to the fact that she admitted to not disclosing matters to Turner Freeman and to Hickson and your Honour would - this is just a matter your Honour may needless to say like to ventilate in your Honour’s mind is that it may well be that in the absence of that agitation of that issue that there would be an irrevocable point of appeal because you hadn’t considered the surrounding circumstances.  They’re the only two matters that arise so far.

HIS HONOUR:  All right, so far.

RENSHAW:  I’m not trying to be in any way disrespectful.

HIS HONOUR: No I know you’re not and in fact I’m grateful to you both, particularly Mr Renshaw because I haven’t given many judgments in this area and so I’m learning and it’s helpful to get the right Act. All right just go back to the economic loss point. Section 126: that talks about future economic loss, you started with a proposition about past economic loss, that’s where I got lost.

RENSHAW:  The accident occurs and the Act contemplates looking at what the future economic circumstances - but for the accident - of the plaintiff would have been, or the claimant would have been and that has to take into account all the surrounding circumstances.

HIS HONOUR:  The most likely future circumstances but for the injury.

RENSHAW:  So whether she would have gained employment again after Turner Freeman for example.

HIS HONOUR:  Yes I see what you mean.

RENSHAW:  And taking into account due diligence inter alia of the prospective employers and whether they would be likely to employ her in that industry.  The only other matter which was strictly not - I thought your Honour had understood my submissions to be that if in fact your Honour were to accept exhibit M, it would become nebulous for me to address on damages if that were taken at full value.

HIS HONOUR:  That’s how I understood your submission to be.

RENSHAW:  That it would become futile for me to suggest sums because your Honour would have to do a proration in terms of reduction in any case and that to a certain extent seems to be the approach of your Honour in passing your Honour’s judgment so far.  I think these are matters that we’ve added up the other figures, I don’t know how best to suggest--

HIS HONOUR:  Let me have a think for a moment Mr Renshaw, just give me a moment to think.  Mr Petrushko did you want to add anything?

PETRUSHKO:  No, I wasn’t at the hearing so I cannot comment at all on what I’ve been hearing and on the submissions that were made, but on the two points that Mr Renshaw made as your Honour was coming onto the bench, I agree with him, he did speak to me before that as well.

HIS HONOUR:  Good thank you.  I resume my judgment.  I am grateful to counsel, particularly Mr Renshaw, for the observations which they made. 

1. I will commence by reviewing the award that I made for general damages.  My reasons were misconceived because, purely through my own fault, I was wrongly considering a provision of an Act which is not relevant.  There is no issue about the degree of impairment so far as the assessment of damages for non-economic loss is concerned.  That means, as Mr Renshaw points out and as I now recollect reference was made to in submissions, damages are at large.  In light of the findings which I have made regarding the prognosis for a development of a recovery on behalf of Ms Leonhardt, but also in light of the pain and suffering which she has undergone to date, I would regard - so far as an estimate of general damages at large is concerned - a figure of $200,000 as an appropriate amount.  That takes into account her pain and suffering to date, of course, but also the prospect that there is a significant contribution to her pain and suffering from sources other than this car accident, and takes into account that her prospects of recovery are reasonably good so far as the psychiatric evidence is concerned, or at least I should say not bad.

1. Turning to the assessment of damages for future economic loss, but for the injury it seems to me that Ms Leonhardt’s future earning capacity would be affected by the following factors which I take into account as including her most likely future circumstances but for the injury, in accordance with s 126 of the Motor Accidents Compensation Act 1999.

1. The first is the impact of traumas other than the trauma brought about by this accident.  The contents of exhibit M indicate that, so far as Ms Leonhardt was concerned, the results of the home invasion in 2001 were very significant. 

1. The second is that her employment so far as being a practice manager or human relations manager for legal firms had not been straightforward.  She had had good employment for some years.  She changed employers.  As Mr Renshaw correctly pointed out, her most recent reference was in 2002.  She left the employment of Raj Lawyers in circumstances which led to a compensation claim.  When she applied for the job at Turner Freeman she did not disclose her previous history, and when she applied for the job at Hicksons she did not disclose her previous history.  I think it likely that if she was looking for employment in the same industry, that a reasonably astute employer would wish to make enquiries about her previous employment, and the responses which that prudent employer would receive back may not reflect favourably on Ms Leonhardt’s employability.

1. On the other hand she is, as I have said, resourceful, diligent and conscientious.  She has demonstrated this already in her life.  I expect that she will, once she is sufficiently recovered to engage in employment, find employment of a kind which will suit her. 

1. How to assess her future economic loss is not easy.  Mr Lidden suggested that her present nett average weekly earnings would be about $1,763.  He argues that I should allow her economic loss for thirty-two years based upon the fact that she will become unemployable for good.  I do not accept that submission.  Because her prospects of recovery are better than the submission is based upon, and because of her resourcefulness and because of the contribution of other factors to her disability, I think that the figure would be less than that put forward by Mr Lidden. 

1. I would regard an appropriate way of estimating her future loss in earning capacity as keeping the figure of $1,763 per week which she was earning at the time, which she would be earning now, but estimating that she would be losing that amount for some ten years into the future.  By that calculation, and allowing for vicissitudes, the multiplier being 412.9, I estimate an amount of $618,750 for her future loss in earning capacity. 

1. An allowance for future superannuation would be eleven per cent of that amount, namely, $68,060. 

1. I accept that she presently requires domestic assistance.  I accept an amount of seven hours a week at $32 as reasonable, which means that she would need about $224 a week.  Once again, for the same reasons, I would allow that for about ten years, with the same multiplier but less ten per cent, so that the figure for future domestic assistance would be $83,240.

I’ll just suspend my reasons here.  Just help me with Fox v Wood. 

RENSHAW: This may or may not assist your Honour, but I think I have to make the observation. The reasoning in terms of s 126 has to apply to the past economic loss and your Honour, with respect, has to advert to the past economic loss what her circumstances would have been. Your Honour has given a previous figure for that. It may be, and I don’t express a wish to express a view except that in the light of what your Honour has said your Honour may have to or may choose to revise not having adverted to it in your Honour’s judgment.

HIS HONOUR: What you’re saying is section 126 refers to future economic loss.

RENSHAW:  Yes, that’s from the time of the accident, but for the accident.  So at the time of judgment--

HIS HONOUR:  See that’s where I misunderstood you before.  When it says future economic loss I assumed that that would be from now.

RENSHAW:  Economic loss is in fact divided into two sections.  Past economic loss that’s until the time of judgment, the trial but it’s future economic loss from the time but for the accident.  If the accident hadn’t occurred you have to look at what her most likely economic circumstances would have been in two components, the past and the future.  I don’t think that’s contentious.

PETRUSHKO:  It’s not your Honour.

1. In light of what Mr Renshaw has said I find that her most likely circumstances but for the accident accord with the earnings which she made in employment since the accident and with circumstances which rendered her unemployed since the accident and accord with the figures put forward by Mr Lidden in MFI 17.

Fox v Wood, just help me with that.  The figure put in MFI 17 is $38,720, how does one calculate that?  Don’t all jump up at once.

RENSHAW:  I don’t know what the figure has been calculated on.

HIS HONOUR:  My question is how does one calculates it, that is where I need help.

RENSHAW:  It’s calculated as a percentage of the past economic loss and the tax, the difference between the tax that would be payable.

HIS HONOUR:  So if I have allowed, which I have, the past economic loss as in MFI 17 which Mr Lidden put forward for $342,901 then Fox v Wood would not change, is that right?

RENSHAW:  That’s correct.

1. I allow the Fox v Wood component at $38,720 in accordance with MFI 17.

RENSHAW:  The past out of pockets were only the medicals I take it, not the wage loss.

HIS HONOUR:  I take it as well that, I mean no issue was made.

RENSHAW:  I think that’s right and I think that she has had a lot of medical.

HIS HONOUR:  You saw MFI 17 and what was in that, so I am assuming.

RENSHAW:  Does your Honour have any material in front of you?

HIS HONOUR:  Yes I have an exhibit, don’t I.

RENSHAW:  Of the workers compensation.

HIS HONOUR:  No you tell me.  You are in the case, so it is not for me to answer your questions, it is for you to answer my questions.

RENSHAW:  Could we have the list of exhibits.

HIS HONOUR:  You may have the list of exhibits and list of MFIs.  Have a look at that first because it might be an MFI.

RENSHAW:  These are all MFIs.

HIS HONOUR:  I know they are, that is what I said, I have given you the list of MFIs because I thought it might be there.

RENSHAW:  No your Honour, it would have to be an exhibit.  There’s a schedule is there?

HIS HONOUR:  Now look Mr Renshaw I don’t answer your questions, if you want to know something you ran the case so.  Mr Petrushko just whilst Mr Renshaw is doing that, have you done any adding up yet?

PETRUSHKO:  I’m doing it right now.

HIS HONOUR:  Good so am I, let us see how we go.  I have got a figure, I will just check it whilst you are doing that.  How did you go Mr Renshaw?

RENSHAW:  Solicitor is just looking at it.

HIS HONOUR:  It is the out of pocket expenses.

RENSHAW:  I think the figure is correct.  The out of pocket expenses that I’ve totalled are 132,172 and I think that accords with what my learned friend here has added up.

PETRUSHKO:  The three different categories of past out of pocket expenses, Medicare.

HIS HONOUR:  Medicare, Worker’s Comp and others.

PETRUSHKO:  That’s right yes.

HIS HONOUR:  The total on MFI 17 is 132,173 and you tell me that should read 132,172.

RENSHAW:  Two.  Might I thank your Honour for the provision of the exhibits.

HIS HONOUR:  Is what is left now the total, I’ve got a total.  I will tell you when you both have worked out a total yourselves and we’ll see whether the three accord.  General damages 200,000, past out of pocket expenses $132,172, future out of pocket expenses 50,000.  Past wage loss 342,901, past superannuation 37,719, future economic loss 618,750, future superannuation on that 68,060, Fox v Wood $38,720, future domestic assistance $83,240.

RENSHAW:  Could I just have the past superannuation.

HIS HONOUR:  Thirty seven thousand seven hundred and nineteen.

RENSHAW:  One five seven one five six two.

HIS HONOUR:  I have got 157,155.30.

RENSHAW:  My instructing solicitor agrees with me.

HIS HONOUR:  And what is yours?

RENSHAW:  One five seven one five six two.

HIS HONOUR:  There is fifty cents difference between, sorry what was your figure again, 157,156.02, so that is 90 cents more than me. 

RENSHAW:  No cents anywhere.

HIS HONOUR:  Because there’s no cents in it, are there?

RENSHAW:  No.

HIS HONOUR:  Shall we do it together?  Let’s start at 200,000 plus 132,172.

RENSHAW:  Yes.

HIS HONOUR:  Equals 332,172 plus 50,000 equals 382,172, Mr Renshaw?

RENSHAW:  Yes.

HIS HONOUR:  Plus 342,901 equals 725,073.

RENSHAW:  Yes.

HIS HONOUR:  Plus 37,719 equals 762,792.

RENSHAW:  Yes.

HIS HONOUR:  762,792.

RENSHAW:  Yes, that’s right.

HIS HONOUR:  Plus 618,750 comes to 1,381,542, 1,381,542.

PETRUSHKO:  Your Honour, may I have the figure again?

HIS HONOUR:  1,381,542, 1,381,542. 

PETRUSHKO:  It is 42.

RENSHAW:  Yes.

HIS HONOUR:  You both agree?

RENSHAW:  Yes.

COURT OFFICER:  ..(not transcribable)..

HIS HONOUR:  We’ll just suspend things whilst that happens.

RENSHAW:  Might I turn on my telephone so I can use the calculator, your Honour?

HIS HONOUR:  Yes, you may.

COURT OFFICER:  They’re still hearing us ..(not transcribable)..

HIS HONOUR:  We’re still on line, thank you.  All right, so we got to 1,381,542 plus 68,060.  I get to $1,449,602, 1,449,602. 

PETRUSHKO:  I’ve got that as well, your Honour.

RENSHAW:  Yes.

HIS HONOUR:  Plus Fox v Wood, 38,720, 38,720, I get to 1,488,322, 1,488,322.

PETRUSHKO:  I get that as well, your Honour.

RENSHAW:  Yes.

HIS HONOUR:  Plus the future domestic assistance of 83,240 which brings me to 157 156 20 and your instructing solicitor gets the prize, Mr Renshaw.

RENSHAW:  Does your Honour come to 157 156 2?

HIS HONOUR:  I see what I’ve done, yes.

RENSHAW:  You’ve come to the same figure as we have.

HIS HONOUR:  I’m sorry, $1,571,562.

RENSHAW:  Yes.

HIS HONOUR:  Yes, $1,571,562, are we all three in agreement?

RENSHAW:  Yes.

PETRUSHKO:  Yes, your Honour.

HIS HONOUR:  Thank you.  Now, gentlemen, what do I do?  I find that the damages would be that amount but the contributory negligence is 65% so I take 35% of that, is that right?

RENSHAW:  That’s correct, your Honour.

PETRUSHKO:  That’s correct, your Honour.

HIS HONOUR:  I enter a judgment and verdict for that, is that also correct?

RENSHAW:  That’s correct, your Honour.

HIS HONOUR:  It seems to me that the figure is $550,047, 550,047.

PETRUSHKO:  That’s correct, your Honour.

RENSHAW:  We get 550,047.

HIS HONOUR:  Thank you.  I’ll return to my reasons for judgment.

1. I find that the damages which would be payable by Ms Hosford to Ms Leonhardt had the accident been completely Ms Hosford’s fault to be in the figure of $1,571,562, 1,571,562.  I regard the contributory negligence of Ms Leonhardt to be sixty-five per cent and accordingly I enter a verdict and judgment for the plaintiff, Ms Leonhardt, in the sum of $550,047. 

RENSHAW:  We have an application, your Honour.
HIS HONOUR:  Yes.

RENSHAW:  Before that my learned friend has to ask your Honour to award, make other awards.

HIS HONOUR:  Yes, I don’t know.

RENSHAW:  You have entered a judgment for that amount.

HIS HONOUR:  Yes, I have, I did verdict and judgment for that amount.

RENSHAW:  Do you want to make any other application?

PETRUSHKO:  No, there’s no application.

RENSHAW:  You’ve got to ask for costs.

PETRUSHKO:  The normal course is costs--

HIS HONOUR:  Are you asking for costs?

PETRUSHKO:  Yes, your Honour.

HIS HONOUR:  What do you have to say about that, Mr Renshaw?

RENSHAW:  I have no objection to that, your Honour.

HIS HONOUR:  All right.

1. The defendant should pay the plaintiff’s costs.

RENSHAW:  We have an application for a stay, your Honour, from the question of liability.  We would ask for a total stay bearing in mind that the range of views on this matter could vary considerably.  I don’t think that my learned friend will necessary quibble with that bearing in mind - I don’t think I need to amplify it, your Honour.

HIS HONOUR:  What sort of stay once again--

RENSHAW:  Twenty-eight days, your Honour.

HIS HONOUR:  --I’m in reasonably new territory.

RENSHAW:  For 28 days on the condition that within 28 days we put on notice of appeal.  The problem is, your Honour, we won’t have a transcript by then all we can do is put on a holding appeal.  I think we can put on a holding appeal with leave to approach your Honour if we need to have a continuation of the stay.

HIS HONOUR:  Is that what happens or you approach the Court of Appeal?

RENSHAW:  If your Honour were to decline the stay we would go to the Court of Appeal and get the same result effectively but that’s only going to add potentially to the costs to both parties.

HIS HONOUR:  What do you say to that, Mr Petrushko?

PETRUSHKO:  My instructions are to oppose the application, the defendant does have 28 days to lodge the appeal, they’ve got 28 days to pay it so they’ve got that 28 days already and the plaintiff should be entitled to the fruits of the verdict but if your Honour is against me on that application my instructions are that in the alternative a stay on terms.  That is the defendant to pay half of the judgment and those are my instructions, your Honour, I can’t take it any further than that.

RENSHAW:  My learned I think has misconstrued what a stay is, your Honour.  A stay is not 28 days to pay the money a stay is a stay on the judgment.

HIS HONOUR:  Yes, because you on the liability question as you said.

RENSHAW:  Yes, and the stay operates on any obligation of the defendant to act in the interim pending the conditionality of the undertaking given in the stay.  We may need - we may be able to get if your Honour were to particularly order that a copy of the judgment be taken out with expedition which your Honour could easily do.

HIS HONOUR:  I’m going to do that.

RENSHAW:  Then it’s a matter for the Court of Appeal.  It’s a matter where the appeal is of right because of the sum involved and also because of the issues of liability so an appeal day there’s no question about that the question is merely on what terms and since liability is so hotly an issue and your Honour not disagreeing with what your Honour said but your Honour would readily I trust as say this with greatest respect agree that there would be a range of views and also your Honour would be familiar with the range of authorities that says that when you get to 80 to 90% contributory negligence the more appropriate verdict is a verdict for the defendant.  Your Honour’s finding effectively comes to momentary inadvertence by Ms Hosford as to what in fact the plaintiff was doing and there may well be if I can just point out another potential problem--

HIS HONOUR:  Sorry, potential problem in the judgment?

RENSHAW:  No, in respect of another issue that could be ventilated and another view could be--

HIS HONOUR:  I don’t need to know that. 

RENSHAW:  Could I just say this, your Honour.

HIS HONOUR:  Just let me think for a moment.  What I have in mind is a stay until the judgment is published and then perhaps well let’s say, a stay for 28 days from the publication of the judgment.

RENSHAW:  Your Honour pleases.

HIS HONOUR:  I will direct that a transcript of my judgment be taken out with expedition.  I will need to revise it and it will be published.  You will be advised when it is published.  And I will direct a stay and I will do this in chambers if you are both in agreement for 28 days from the date that the judgment is published on line.

RENSHAW:  Your Honour might derive comfort from the fact that the plaintiff of course in the interim will be paid workers compensation.

HIS HONOUR:  That’s what I’m thinking.  Mr Renshaw, do you want to be heard on that?

RENSHAW:  I’m happy with that.

HIS HONOUR:  Mr Petrushko?

PETRUSHKO:  No, your Honour, the application I made was at its highest was what I said before and I can’t take it any further than that, your Honour.

HIS HONOUR:  Yes, I knew that, thank you.  Are you both happy with me directing the stay or giving effect to my order for a stay in chambers from the day that it’s published, are you both happy with that?

RENSHAW:  Your Honour, would have to grant a stay from today until then.

HIS HONOUR:  Yes, that’s a good point, yes, I see what you mean. 

1. I order a stay on the judgment from today until the day that the judgment is made available to the parties.  My associate will email you a copy.  Sometimes it takes longer to get it published.  So from today until the day that the judgment is emailed by my associate to the parties and from that day for twenty-eight days thereafter.

RENSHAW:  Thank your Honour.
HIS HONOUR:  Is that it?
RENSHAW:  I hope so, your Honour.
PETRUSHKO:  I believe so, your Honour.

HIS HONOUR:  Can I thank you all for your patience and for your assistance too.  In this I am grateful for both.

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AMENDMENTS:

07/09/2010 - Typographical error correction - Paragraph(s) covernote

LAST UPDATED:
7 September 2010