Tu Tran v Dos Santos - [2008] NSWSC 1216

No judgment structure available for this case.

CITATION: Tu Tran v Dos Santos [2008] NSWSC 1216

HEARING DATE(S): 14-18, 21-24, 28-30 April,1-2 May 2008

JUDGMENT DATE :
20 November 2008

JUDGMENT OF: Smart AJ at 1

DECISION: Defendant held negligent. Plaintiff held contributorily negligent. Stood over for further evidence on limited damages aspects.

CATCHWORDS: Motor vehicle accident - plaintiff very severely brain damaged - isues of negligence and contributory negligence - application of agony of moment/emergency principles to both parties - Assessment of Damages in view of plaintiff's condition - non provision of purpose built house - plaintiff unaware of his surroundings or his condition - rehabilitation improbable - limited physiotherapy - future medical care and treatment - limited life expectancy

LEGISLATION CITED: Motor Accidents Compensation Act (1999) (NSW)
Superannuation Guarantee (Administration) Act (1992) (Cth)

CATEGORY: Principal judgment

CASES CITED: Cortis v Baker [1968] SASR 367
Leishman v Thomas; Hobbs (3rd Party) (1957) 75 WN (NSW) 173
Medida Pty Ltd v Tobin (NSWCA, 20 December 1995-BC9501776)
Nominal Defendant v Rowland-Smith [2003] NSWCA 65
Norris v Blake (No.2) (1997) 41 NSWLR 49
Shelley v Szelley [1971] SASR 430

PARTIES: Tu Tran
Maria Dos Santos

FILE NUMBER(S): SC 20210/06

COUNSEL: H.J. Marshall SC and Mr Taylor (P)
R.Stitt QC and H.M. Stitt (D)

SOLICITORS: Keddies Lawyers (P)
Sparke Helmore (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SMART AJ

Thursday 20 November 2008

TU TRAN V MARIA DOS SANTOS

JUDGMENT

Introduction

1 Tu Tran by his tutor Tam Thanh Tran, the plaintiff's brother, sues Mrs Maria Dos Santos for damages for negligence when on 14 November 2003 a car she was driving on Henry Lawson Drive, Georges Hall, collided with Tu Tran who sustained grievous injuries as a result, including extensive brain damage. It is feared that he will spend the remainder of his life in a bed or a special chair which has many of the characteristics of a bed. He cannot speak nor is there any reasonable prospect that he will be able to do so in the future. He was born on I May 1970.

2 There are substantial issues whether the plaintiff has proved that the defendant was negligent and whether he was guilty of contributory negligence. There are major issues as to whether the plaintiff can be rehabilitated or further rehabilitated, as to the provision that should be made and care provided for him and as to his future life expectancy.

3 The second amended statement of claim (2ASC) contains the following particulars of negligence, amongst others:

4 The defendant denied that she was negligent and contended that any injuries, loss or damage sustained by the plaintiff were due to his own or contributory negligence. She relied on the following particulars:

(a) Running on a main road at night whilst there was high speed traffic travelling in both directions;

(b) Attempting to flag down fast moving traffic

(c) Running on the _. roadway whilst his ability to take care for his own safety was affected by his consumption of alcohol and his use of a mobile telephone to call Emergency Services;

(d) Placing himself in a position of peril on the roadway when he knew or ought to have known that he was difficult to observe and vehicles were travelling at a speed where they would be unable to stop, swerve or avoid a pedestrian;

The Prelude

5 Tu Tran and his friend, Van Le, had met at Campsie early in the afternoon of 14 November 2003. Van Le had driven them in the car of Graham Henderson to Cabramatta. They lunched at Cabramatta leaving the restaurant between about 3.30pm and 4pm. They walked around the area. Subsequently they went to a Club at Canley Vale in the late afternoon: Both were drinking. About 8pm they left; they went to a restaurant and had dinner. They had more to drink. They stayed for more than an hour. After dinner they set out to return to Campsie with Tu Tran driving. They proceeded along Henry Lawson Drive, an arterial road which carried a lot of traffic. At Georges Hall, Henry Lawson Drive passes through some parkland areas. On the eastern side there is the Georges River and a parkland area which includes Kentucky Reserve and on the western side there are the tennis courts known as Coleman Park and a golf course known as Riverwood Golf Course. Of principal concern is that section of Henry Lawson Drive between Haig Avenue and Tower Road. The weather conditions were fine and Henry Lawson Drive was dry. This map (taken from a reproduction of Exh 2) shows the general area. The arrow marks the approximate point where Van Le asserts that he and Tu entered the Kentucky Reserve.

Exhibit 2

6 Tu Tran drove the car into Kentucky Reserve shortly prior to reaching Tower Road. According to Mr Van Le, Tu Tran parked the car near the river. Van Le noticed two fishermen. Van Le said that he and Tu Tran talked for about ten minutes. Each went for a short walk. They regathered. Tu Tran did not want to leave for another ten minutes. Van Le said Tu Tran went for another walk and that he (Van Le) went for a walk in the opposite direction. After he had walked about ten metres he heard Tu Tran shouting "Le, Le, Le" and "Help". Van Le said that he rushed to help Tu Tran and saw another male attacking Tran. Van Le said this male was Caucasian, about 40 years old, solid build, 165cm -170cm tall with short hair and wearing a navy blue T-shirt and very short dark coloured shorts. Van Le recalled seeing a truck parked near where their car pulled up.

7 Van Le said that he tried to pull them apart. In the course of the struggle the attacker hit Van Le several times. Van Le felt pain in his left arm. It was later ascertained that it was broken. The attacker ran away but returned a little later holding a weapon that Van Le thought was a knife and continued the fight.

8 Van Le in his statement to the police on 24 November 2003 said that the attacker chased Tu and that Tu ran across (the reserve) to the road and that he (Van Le) followed Tu. In his statement to a police officer at Fairfield Hospital shortly after the accident Van Le said:

"7. Tu and I turned around and started running away. We ran out towards the road and ran along the road on the river side. Tu and I then crossed over and I saw the man was chasing us. He was holding a long knife about 30cros long. I was scared because the man had hurt us and I thought he was going to stab us with the knife. I kept running.

I said, 'I don't know where'."

[This broadly accords as to the conversation with what is recorded on the tape of the 000 call which is set out later]

"9. We kept running and then I heard a loud bump. I turned around and saw a car had hit him.

9 In this version Van Le has telescoped events. He described the events leading up to the accident more fully in his statement of 24 November 2003 to the police. In that statement Van Le said that he ran beside the road on the opposite side to the river, Tu was running on the river side of the road and the assailant was running behind Tu on the river side of the road. They were running in the direction of Cabramatta. Van Le said that Tu crossed to his side of the road and that when he was in the middle of the road he waved his arm to stop a passing car. One car stopped and then it drove away. Van Le said that Tu continued running up the middle of the road and he (Van Le) ran along the side of the road. Van Le said that Tu used his mobile telephone to call the police and was shouting "Help, help, help" whilst he was running on the side of the road. At that time the male with the knife was about 8 to 10 metres behind Tu. Tu was running about 6 or 7 metres behind Van Le.

10 In his oral evidence in chief (T63, II 40-47) Van Le said when he reached Henry Lawson Drive he ran on the side close to the river and Tu was running on the side furthest away from the river. Van Le said that he saw the assailant with the object in his hand and that that man was running on the same side as Tu who was in front. They were running towards Cabramatta. Van Le said that about "halfway" Tu ran to his (Van Le's) side of the road.

11 At T72 Van Le said that the man with the knife or stick - it was night time - was running behind Tu. That man crossed the road. He was about 4-5 metres behind Tu. Van Le said he was roughly level with Tu.

12 In cross-examination (T102) Van Le said that the statement that he ran beside the road on the opposite side to the river and that Tu was running on the river side of the road was not correct. Van Le said that the statement that the man was running behind Tu on the river side of the road was not correct. Van Le said that the statement that the man chased Tu and Tu ran across the road and that he (Van Le) followed him was not true. Van Le insisted that Tu crossed from the river side to the park side. He agreed that he had told the policeman that Tu was in the middle of the road waving his arms at a passing car. Van Le said that Tu had crossed the road to his side and that meant that Tu was running on the side closest to the river when that happened. (T103)

13 Van Le agreed that when he saw the man cross the road to follow Tu that was at the beginning at Kentucky Reserve toward where the fight occurred. The man was on the golf course side chasing Tu. Van Le said that he was running towards Cabramatta and Tu was behind him.

14 Van Le said that it was after Tu crossed from the golf course side to the river side when he tried to flag down a car. Tu and he crossed the road again and it was then that Tu used his mobile phone. Van Le said that they were halfway there (probably, that means halfway between the illuminated petrol station at the corner of Henry Lawson Drive and Rabaul Road at the Cabramatta end of the parkland where Van Le and Tu were heading and a point on Henry Lawson Drive approximately opposite where they had parked the car in Kentucky Reserve). Van Le said that they did not see the assailant when he and Tu were crossing the road or subsequently. They suspected that the assailant was not far away and so they kept running.

15 Mr Nigel Gordon gave evidence that he was driving south along Henry Lawson Drive on his way to Newtown. He saw a man in a yellow shirt (Van Le) roughly in the middle of his lane walking north at about the southern end of the tennis courts. Mr Gordon swerved and avoided Van Le. Mr Gordon said that there was another man on the side of the road. He could not remember which man he saw first. They were roughly walking together. One might have been slightly behind the other. Mr Gordon was unable to say whether the man on the side of the road (presumably the plaintiff) was on the bitumen shoulder or on the adjoining dirt shoulder. He was not in the southbound lane.

16 In her statement to the police dated 14 November 2003 and made to Det Sgt Apolony Mrs Dos Santos, a Ranger, stated she was 31 years of age and had that evening with her husband and two young children, been visiting her sister at Georges Hall. They left about 9.50pm. She gave this account:

"4. About 10.OOpm I was driving home along Henry Lawson Drive Georges Hall in our vehicle, registration number NEL-10S, a 1997 Ford Falcon sedan, silver in colour. We were heading in a southerly direction heading towards Canterbury Road to go back to Mortdale. I was driving along doing about 70 k.p.h. There was another vehicle about five to ten metres in front of us. I think it is an 80 k.p.h. zone.

5. I saw two males running along directly in the middle road towards us heading north in our lane. The male in front was stocky build, wearing a yellow jumper, similar to a sloppy joe, beige coloured pants similar to cargo pants and a light coloured cap. The second male behind him was young, medium build wearing some kind of shirt with design on the front. They appeared to be running side by side. I only saw the second males shirt when he it (sic) the windscreen.

6. I was driving along and the car in front swerved to the right and then back to the left into the lane. Within a second I saw the second male standing in the middle of the road. I braked harshly and the next thing this male hit the windscreen on the left passenger side of the car.

17 The 000 call made by the plaintiff reveals that he telephoned that number at about 2153 hours. I was provided with two versions. One was the audiotape of the telephone call produced by the Police Department. The second version was described as an electronically enhanced version made by a company engaged on behalf of the defendant. The two versions are not identical but they are substantially similar. I was given a transcript by each of the parties to be used as an aide memoire as they were unable to agree on the one transcript.

18 Neither version is easy to follow and I have played and listened to each several times. Counsel correctly told me I would need to do this. The versions require considerable concentration and it is easy to miss words amongst the background noise. It is also necessary to replay the more indistinct parts many times. In some instances I have found the audiotape produced by the police easier to follow than the enhanced version. It contains times whereas the enhanced version does not. It seems that they were deleted in the enhancing as they sometimes coincide with what is being said. There was a dispute as to how much of the tape was intelligible and as to the noises that could be heard and what they represented. There was a further complaint that in the plaintiff’s aide-memoire there was a translation of words apparently uttered in a foreign language. I haven't taken these into account as there is sufficient in the words in English to gather what is happening. I have noted where the words in a foreign language have been uttered. I thought that no good purpose would be served in having them formally translated.

19 Both aide-memoires contain numbered lines which often, but not always, correspond. I have summarised what I was able to gather from the tapes, omitting some formal and repeat phrases and material which did not seem to be of relevance.

20 It was common ground that the two tapes constituted the evidence and that the Court would have to do the best it could from the imperfect source materials. From both versions it appeared that when the plaintiff telephoned 000 he told the operator (seemingly from the voice, a lady) that someone wanted to kill him and "they got a knife." There was panic and fear in the plaintiff's voice. The plaintiff told the operator that he just stopped somewhere and they are near him and want to attack him. The operator said to the plaintiff, "Please listen, whereabouts are you?" She repeated, "Where are you?" She said, "What suburb". The plaintiff said, "we don't know ... [unintelligible] ... near the water." She replied, "Sylvania Waters?" The plaintiff answered, "Yes." [This was incorrect] There are some unintelligible portions and some background noise. The plaintiff says "wait" or "wake up Le". There are cries by the plaintiff for help. The plaintiff says "... somebody wanna kill me."

21 The phone cuts out. The operator telephones back and states, "I'm calling back Mr Tan Jan. He's getting chased. Sounds quite gruesome." The operator states, "This is the police. Please tell me where you are." The plaintiff does not do so and is probably unable to do so. The plaintiff again cries for help, asserting, "He got a knife in his hand now." The operator again asks, "Where are you?" The plaintiff replies, "I dunno ... I dunno where we are." The operator asks, "What has happened." The response is unintelligible. The operator states, "I can't understand you." The plaintiff cries, "Help me." The operator asks, "Where are you?" The response is unintelligible. The operator advises the plaintiff, "have a look at a sign." The plaintiff cries, "Please help. Please help". While the plaintiff's further response is hard to ascertain I think it is probably, "he's going to kill me" .The telephone cuts out. The operator telephones the plaintiff and re-establishes contact.

22 Counsel for the plaintiff contends his screaming is detectable on resumption of contact and probably correctly. The operator states, "I cannot understand you, where are you?" The plaintiff asks, "Where are we Le?" The operator asks, "Where are you?" and again "Where are you? Are you on a road?" The plaintiff replies, "He's close". Those words can be heard through the background noise. The operator enquires, "Where are you?" The telephone cuts out. The operator remarks,. "They're in Sydney, the mobile's in Sydney, that narrows it down." The operator telephones the plaintiff and re-establishes contact. He cries, "Help, help." She states, "You need to tell me where you are". He responds, "Can the Police." (Call) He cries, "Help, help." She asks, "Where are you?" His cries can be heard.

23 The operator asks, "Are you on a road?" There are sounds which I would assess as panting or the sounds of a man in distress. The operator next asks, "Are you injured?" There is further panting or distress sounds. There are further requests from the operator, namely, "Where are you?". Between panting the plaintiff says, "Le, Le". The operator asks the plaintiff "What's your name. I want to get the police to help you, whereabouts are you." There is a cry and a sound similar to that of a honking horn.

24 The plaintiff contends that what follows is:

25 The defendant's version is as follows:

"[First skidding] [short electronic tone] background noise]

[Second skidding]

Voice - "Hello?"

26 I doubt if it matters whether the description given is "tyres screeching" or "skidding". I thought I could detect at least three lots of screeching and there could have been more. There were "skid marks" from the defendant's vehicle on Henry Lawson Drive in the southbound lane and the defendant said she braked heavily. There were no skid marks from any other vehicle.

27 The voice in the passage quoted from the defendant's version is that of the operator.

28 What follows according to the defendant is:

"Voice - `You fuckin' arsehole. You fuckin' arsehole. What are you walking in the middle of the road for?"

29 The plaintiff's version was:

30 It seems that when the plaintiff and Van Le ran from Kentucky Reserve they were heading for the service station at the corner of Rabaul Street and Henry Lawson Drive. That was the nearest established illuminated point where they were likely to be able to obtain help. They had passed it on their way to the entrance to Kentucky Reserve but it was quite some distance back and they had had a lot to drink. Their fear and heightened awareness of the danger would have enabled them to overcome, at least in part, the effects of the liquor consumed. It seems that the plaintiff did not commence using his mobile telephone until he was some distance north of the Kentucky Reserve back along Henry Lawson Drive. While it cannot be stated with accuracy, the plaintiff and Van Le probably engaged in a mixture of running (jogging) and walking. Neither was in a condition to travel quickly on foot. The 000 telephone call began at about 2153 hours and the accident appears to have happened at about 2158 hours. About 21:55:10 the plaintiff cried out for help and stated that his assailant had a knife in his hand. At 21:55:38 the plaintiff sought help and expressed his fear. Throughout 21:56 the plaintiff called for help. At 21:58:30 about 30 seconds after the accident Van Le stated "Guy with a knife, we run away."

31 From the tenor of the telephone call it can be deduced that immediately before the accident the plaintiff was in an emergency situation in serious fear for his life or serious injury from the assailant. Van Le was similarly fearful. It can also be concluded that due to his fear of the assailant and attack the plaintiff was talking to the 000 operator on his mobile phone as he travelled along the road and up to the point of collision. I disagree with the defendant's contention that before the accident occurred the emergency had passed.

32 Although there was some confusion, especially in Mr Van Le's mind about which side of the road he and the plaintiff were on in the earlier stages of their flight, both shortly before and at the time of the accident, they were both on the golf course side of Henry Lawson Drive.

33 Mr Le struck me as a poorly educated and somewhat confused man. He had difficulty in expressing himself and did not seem to relate reasonably to either interpreter. He was far from fluent in English and his understanding and comprehension of English and his ability to speak English were limited. He possessed some, but not a complete and accurate comprehension of what was said to him. His ability to read English was similarly limited. I gathered that Mr Van Le's command of the Vietnamese language was basic. This was apparent from the mutual difficulties which he and the interpreters experienced in their exchanges. This is not an uncommon problem where the witness has had a limited education in his native country. Mr Van Le did not go well in the witness box but there were some aspects of his evidence which I thought were probably correct although at times he seemed to contradict himself and what he had earlier said.

34 At different stages as he and the plaintiff made their way in a northerly direction along Henry Lawson Drive from Kentucky Reserve towards the illuminated Service Station they were on different sides of Henry Lawson Drive. The plaintiff, in particular, was being pursued by the unknown assailant holding an attacking object and was terrified. Van Le was also fearful.

35 At a stage shortly before the accident both Van Le and the plaintiff were on the golf course side of the road. Van Le was slightly ahead of the plaintiff. I am unable to say how far. I doubt if it was 8-10 metres. At the stage when Mr Gordon saw the plaintiff he was on the side of the road. When Mrs Dos Santos first saw the plaintiff she "saw two males running along directly in the middle road towards us." She recalled the male in front wearing a yellow jumper, beige coloured pants and a light coloured cap. She said the second male "behind him was young, medium build" and "they appeared to be running side by side." After referring to the car in front swerving she said, "within a second I saw the second male standing in the middle of the road."

36 For at least three of the five minutes immediately before the accident the plaintiff was being closely pursued by the assailant. At 21:55:10 the plaintiff was crying out for "Help" and stating, "He got a knife". At 21:55:38 the plaintiff seeks help and also at 21:56:18, 21:56:32 and 21:56:38. There is the contemporaneous remark of the operator at 21:55:50, "He's getting chased. Sounds quite gruesome". In my opinion the plaintiff was in imminent danger at 21:56 and confronted with an emergency.

37 I am not surprised that Mr Gordon did not see the assailant. Although Van Le and the plaintiff emerged from the dark into the headlights of Mr Gordon's vehicle, I would have expected the assailant to have made himself scarce (absented himself) once he saw the first glimmer or trace of oncoming headlights.

38 The danger and emergency had continued for a considerable distance and was an ever-present threat. As the assailant was behind the plaintiff I would not reasonably expect the plaintiff and Mr Van Le to be conscious of the exact point at which the assailant ceased his pursuit.

39 About 11.25pm Acting Inspector Sullivan (then Det Sgt Sullivan) led a number of police officers in a crime scene investigation. This involved making a sketch of the accident area and taking a number of measurements. He used light pole T 3529 (shown as T3259 in the police notes) on the eastern side of Henry Lawson Drive as his point of reference. The streetlight on top of this pole was functioning on the night of the accident. This pole was about 12.8 metres from where tyre mark 1 (the nearside tyre mark) of Mrs Dos Santos' car commenced. That tyre mark continued to a point 32.3 metres south of the light pole, that is, it was about 19.5 metres long. Tyre mark 1 was 2.6 metres west of the eastern shoulder of Henry Lawson Drive. Tyre mark 2 (the offside tyre mark) commenced about 13.9 metres south of the light pole and continued to a point about 34.9 metres south of the light pole, that is, it was about 21 metres long. Tyre mark 2 was about 4.2 metres west of the eastern shoulder of Henry Lawson Drive. The tyre marks veered slightly towards the centre line of Henry Lawson Drive. There were overhanging trees along each side of the road. These trees contributed to making the area dark.

40 Det Sgt Sullivan on the evening of the accident estimated the point of impact as being 0.9 m west of the eastern edge lane of Henry Lawson Drive and 32.3 m south of light pole T3529 on the eastern side of Henry Lawson Drive. In selecting that point Det Sullivan was influenced by an area of bloodstain on the dirt shoulder about 33.5 m south of the light pole on the eastern side of Henry Lawson Drive, near the end of the nearside skid mark.

41 The two civil engineers who had studied road accidents and were experienced in accident reconstructions disagreed. Both thought that the point of impact was a little earlier. Mr W Keramidas, a highly qualified and experienced traffic and road accident reconstruction engineer retained by the defendant, prepared a diagram to scale in which he set out the potential range of impact locations being somewhere between 7.7 to 14.8 metres from the start of the skid marks and about 1.1 to 1.25 metres west of the eastern edge line of the southbound lane. He concluded that the impact occurred during the skidding with the likely point of impact being towards the southern end of the range. Mr G Johnston, a well-qualified and experienced traffic and road accident reconstruction engineer, retained by the plaintiff, agreed with the potential range of impact locations but thought that the likely point of impact occurred during the skidding but at a more northerly point. There was no certainty as to the point of impact. It could not be fixed on the balance of probabilities. Both Mr Keramidas and Mr Johnston thought that a speed of roughly 40 kph of the defendant's car when it hit the plaintiff was within the likely available range. Perhaps it was a little more if Mr Johnston's estimate of an earlier point of impact is correct. There was a difference as to how far west of the eastern edge line it occurred but that difference was slight and of no consequence.

The Accident Scene

42 Henry Lawson Drive at Georges Hall has one northbound lane and one southbound lane. There is a broken centre line before, after and in the section in which the accident occurred. There is a painted white lane line on either side of the road. There is a bitumen shoulder beyond the painted line. There is a dirt shoulder beyond the bitumen shoulder. Each of the traffic lanes measured about 3.2 metres in width. The sealed shoulders varied but were generally about 1.2 to 1.7 metres on the eastern side and about 0.5 to 1.00 metre in width on the western side.

43 About 18 metres south of the intersection of Rabaul Road and Henry Lawson Drive on the western shoulder of the latter there was an 80 kph speed restriction sign for southbound traffic. A further 24 metres south but on the eastern shoulder of Henry Lawson Drive there was an 80 kph restriction sign for southbound traffic and a 60 kph restriction sign for northbound traffic. Rabaul Road marked the start of the built-up area where a 60kph sign and speed limit could be expected, whereas 80 kph was the speed limit through the parkland/golf course areas.

44 The collision between the defendant's car and the plaintiff occurred on Henry Lawson Drive approximately 5 metres south of the entrance to Coleman Park.

45 Mr Keramidas records that the police field notes contain a notation that the Ford Corsair in which the plaintiff and his companion arrived in the area was located approximately 500 metres from the location. This is much shorter than the distance of 1000 metres suggested by a study of Exhibit 2 as that which the plaintiff and Van Le had jogged/walked along Henry Lawson Drive.

46 The damage to the defendant's 1997 Ford Falcon GLI sedan indicates an impact location between the centre of her vehicle and the nearside, including a windscreen strike towards the nearside third of the vehicle and damage to the nearside external mirror and quarter panels area.

47 Mr Keramidas said that on approach to the incident location from the north and travelling south, the roadway is essentially straight from a point about 300 metres north of the incident location to a point about 85 metres beyond the impact location. Further south there is "a shallow left-hand horizontal bend (for south bound traffic) with about a 550 metre radius. Beyond this bend the roadway straightens again, running past the Riverwood Golf Course. The roadway is essentially flat along this section.

Mr Gordon's Evidence

48 Mr Gordon was a scrupulously honest witness. In 2003 he was a catechist at the Anglican Church at Fairfield. As part of his duties he ran a Bible study each Friday night at a home in Birdwood Road, Georges Hall. They usually finished between 9.30pm and 10.30pm. He lived at Newtown. To return home he drove along Haig Avenue and turned left into Henry Lawson Drive. He had no recollection of what time the Bible study concluded on 14 November 2003, but believed it was the normal time. He recalled that the lights at the Haig Avenue corner were red and that he stopped. On the lights changing he turned left and proceeded along Henry Lawson Drive. The river was on his right hand side and the tennis courts of Coleman Park were on his left. He remembered, as he proceeded south, seeing a man in a yellow shirt roughly in the middle of his lane walking north at the southern end of the tennis courts. This was as much as he remembered. Mr Gordon was not able to specify the distance between his car and that man when he first saw him. Mr Gordon could not recall exactly what speed he was travelling at that time. He estimated that he was travelling at more than 50 kph but less than 70 kph. Mr Gordon was a cautious man and had only recently passed the 80kph sign. He was driving a small car, a manual 1991 white Nissan Pulsar - it was not a powerful car and he was not a fast driver. I think that Mr Gordon was probably travelling at little more than 50 kph when he first saw Van Le.

49 Mr Gordon said that there was another man on the side of the road. He could not remember which man he saw first. Mr Gordon said that the men were roughly walking together, one might have been slightly behind the other. As he saw the man (probably the one in the yellow shirt) in front of him he swerved his car to the right into the oncoming lane to drive around him. Mr Gordon's car was not out of control. He did not have to brake. At the point at which he had to move into the northbound lane there were no oncoming vehicles. Mr Gordon returned to the southbound lane after he had safely gone around the man.

50 Mr Gordon said that the tennis court lights were on and that apart from the reflected light from the tennis courts the rest of Henry Lawson Drive stretching out in front of him was dark. As Mr Gordon took the necessary evasive action to avoid colliding with the man in the yellow shirt and swerved around him he was focussing on this man in the south bound lane.

51 Mr Gordon said there was a second man on the side of or off the road on the edge, on the tennis courts side. Mr Gordon distinctly remembered seeing two men; one was off the road and the man in the yellow shirt was not. Mr Gordon could not remember whether the man in the yellow shirt was slightly in front of or slightly behind the other man. Mr Gordon agreed that the man off the road did not play any part in the evasive manoeuvre.

52 Mr Gordon said that after he performed the evasive manoeuvre he was a little rattled and slowed down somewhat. He could not remember to what extent. He continued driving south in his correct lane.

53 Mr. Gordon said that after he was back in the correct lane he looked in his rear vision mirror. As he drove away he said he saw the headlights of more than one car. He was unable to estimate the distance behind his car that these headlights appeared to be but the headlights were not immediately behind him. He continued looking in his rear vision mirror on and off. He could no longer see the man, but a little later he saw what appeared to be a silhouette of a man go up in the air and onto the eastern side of the road. He was unable to be precise as to what time elapsed between seeing the car headlights and seeing the silhouette in the air, but it was not very long - he could not be sure.

54 Mr Gordon said that the man in the yellow shirt came out of the darkness. Mr Gordon's headlights "lit him up". Mr Gordon said that the second man was not in the southbound lane. He could not say whether the second man was on the bitumen edge or the dirt shoulder. Mr Gordon's recollection was that both men were walking.

55 As Mr Gordon gave his evidence he was doing his best to tell the truth and I regarded him as a valuable witness. He was far from dogmatic. His manner was a little diffident. He gave me the impression of being far from certain about times and distances and the finer details of the accident. He was certain about the swerve manoeuvre he undertook and seeing the two men he mentioned. The two men came out of the dark just before the southern edge of the tennis courts. Mr Gordon gave the impressions that he was not able to say how far the nearest headlights were behind him and that it was very quickly after he first saw the headlights of following cars that he saw the silhouette in the air.

Mr Haydar Kahla

56 Mr Haydar Kahla (Cahla in the transcript) was driving his Toyota Hi Ace Van about 10pm on 14 November 2003 along Henry Lawson Drive in a northerly direction towards Villawood. It was dark and there were no streetlights. The traffic was light and he had his headlights on low beam. He saw a white car travelling towards him swerve into his lane "just a little bit" for probably seconds and back into its lane. He was not apprehensive that there was going to be an accident. He was unable to state the distance that the white car travelled in the lane carrying northbound traffic nor was he sure how close it was to him. Mr Kahla did not need to apply his van's brakes or swerve.

57 Mr Kahla next saw behind the white car something large and unshaped in the air. At that time he did not know what it was. Mr Kahla said that the swerving car was a little bit in his lane at the moment he saw the object in the air. The swerving car had not passed him when he saw the object. It was still in front of him. Mr Kahla said that after he saw the object in the air he slowed down, approached it, pulled over and noted that it was the body of someone hit by a car. There were other cars behind the swerving car.

58 Mr Kahla was not able to say how close these other cars were to the swerving car. He observed a man on the ground and that he had a friend next to him. Mr Kahla heard the friend, who was wearing a yellow shirt, say that there was a man with a knife chasing him.

59 In his statement to the police on 14 November 2003 Mr Kahla said that he stopped the van and that was when he noticed the man who had been about two metres up in the air and who went straight down on the ground had been hit by the car behind the white car which had swerved. Mr Kahla said that he "looked down the road and saw a silver/grey coloured Ford Fairlane that hit the guy had stopped." Mr Kahla included in his police statement what Van Le had told him at the scene and that Van Le had an injured arm. It was a Ford Falcon rather than a Ford Fairlane.

60 In cross-examination Mr Kahla said that he was not familiar with Henry Lawson Drive and that he was travelling about 60 kph. Mr Kahla said that he did not know how fast the car which swerved into his lane was travelling. He did not see why that car had swerved partially into his lane. He did not see anything on the road to cause that to happen. Mr Kahla agreed that the object in the air appeared pretty quickly, that is in one or two seconds after the swerving car had swerved into Mr Kahla's lane. Mr Kahla also agreed that the whole incident took place over a matter of two or three seconds - it was very quick.

61 Mr Kahla agreed that he did not actually see any car hit anybody. Mr Kahla gave this evidence (T117 - 118):

the road?

Q. There was traffic ahead of you and behind you?
A. Yes.

Q. Was there traffic coming towards you as well?
A. Yes.

Q. And at some point you saw this car swerve?
A. Yes.

Q. In the way you've described and then shortly thereafter you saw something up in the air?
A. Yes.

Q. And you are not able to say, firstly, how far you were from the car that partially swerved into your lane when that happened; that's correct?

A. Yeah.

Q. You're not able to say how far any car or vehicle was behind you?
A. That's correct.

Q. And you're not able to say when the actual impact occurred, other than that you saw him up --
A. That's correct.

Q. Was he up above the level of the roof of the car that swerved?
A. That's correct.

Q. So you had a sideline?
A. That's correct. "

62 Mr Kahla also tried his best to tell the truth. His evidence points to the plaintiff being struck while the swerving car was "a little bit" into Mr Kahla's lane. At that time the plaintiff was in the air. I accept that everything happened very quickly. I accept that Mr Kahla was not able to estimate the speed at which Mr Gordon was travelling and that he was unable to state the distance that Mr Gordon's car travelled, albeit partially in the lane carrying northbound traffic.

Det Sgt Apolony

63 Det Sgt Apolony was called to the scene of the accident in Henry Lawson Drive on 14 November 2003. He noted the two skid marks in the southbound lane starting more or less at the entrance to the tennis courts and running south. At the completion of those skid marks on the eastern side of the kerb on the edge of the road there was an amount of red substance believed to be blood.

64 He took a statement, with the assistance of an interpreter, from Mr Van Le on 24 November 2003 and conducted a police video walk through with Mr Van Le on the next day.

65 At an early stage of their investigation the police treated this matter as potentially involving a criminal offence and that is why he was taking statements. Similarly the video-walk through was performed as part of the criminal investigation into what he regarded as potentially a serious crime.

66 Because the statement of Mrs Dos Santos was not related to the accident but to a criminal investigation her counsel submitted that the Court should 'be wary of attributing weight to it in an accident context.

67 It was apparent from the materials that Kentucky Reserve and the nearby area were used as stopping areas by large trucks and truck drivers.

The Competing Contentions

68 The plaintiff contended that the defendant was negligent in that she was travelling too closely behind Mr Gordon's vehicle. Reliance was placed on her statement that she was driving south along Henry Lawson Drive about 70 kph and that there was another vehicle about five to ten metres in front of her vehicle. Thus it was said that she was not travelling a safe distance behind Mr Gordon's vehicle. She was following at a distance too close to the preceding vehicle of Mr Gordon and/or did not react in a timely manner to the appearance of a pedestrian on the roadway.

69 Alternatively, the plaintiff contended that if the Court accepted that Mrs Dos Santos was in error in stating the distance she was travelling behind the preceding vehicle of Mr Gordon as to 5 to 10 metres and she was in fact travelling much further behind Mr Gordon's vehicle the defendant was still negligent in that she did not react in a timely manner to the presence of a pedestrian on the roadway. On this approach she had enough time to avoid an accident by stopping or taking other evasive action.

70 The defendant submitted that, when regard was had to the objective evidence and Mr Gordon's evidence, Mrs Dos Santos must have been travelling a considerable distance behind Mr Gordon's vehicle (about 115 metres or perhaps a little less) and saw the plaintiff in the lane in which she was travelling far too late to avoid hitting him. The defendant relied upon the evidence of its reconstruction engineer whose detailed argument and polished evidence are summarised later.

71 In the meantime I will turn to the evidence of the reconstruction engineer called on behalf of the plaintiff.

Mr Grant Johnston

72 Mr Grant Johnston, a civil engineer specialising in transport engineering and engineering construction with post graduate learning and extensive experience in traffic accident investigation who was called by the plaintiff issued his first report in December 2006 having inspected the area in which the accident occurred on the evening of Tuesday 20 December 2005, accompanied by senior counsel and the instructing solicitor, and on the afternoon of 11 October 2006. On this occasion he was assisted by a fellow engineer and a geometric survey was made. His second report was issued in July 2007.

73 For the preparation of his first report Mr Johnston only had certain of the available information and seemed to be under the impression that it was the plaintiff rather than Mr Van Le that Mr Gordon's vehicle (referred to as the "preceding vehicle" in his report) endeavoured to avoid. See too his confirmation at T319 that one of the assumptions on which his December 2006 report proceeded was that the pedestrian around whom Mr Gordon swerved was the plaintiff. Another assumption on which he proceeded in his first report was that the defendant's car was within 10 metres behind Mr Gordon's car. Mr Johnston conceded at T320 that these were the two major premises upon which his conclusions rested and that if these were incorrect his conclusions had to be altered in part. Mr Johnston agreed that in his report of 2 July 2007 he proceeded on the same factual premise, namely that it was Mr Tran around whom Mr Gordon swerved.

74 While Mr Johnston's first report, (the terms of which I have noted), ranges fairly broadly over some of the circumstances of the incident and makes a number of assumptions, he attaches considerable importance to Mrs Dos Santos travelling too close to the preceding vehicle of Mr Gordon and not reacting in a timely manner to the appearance of a pedestrian on the roadway.

75 It was Mr Johnston's contention that motorists should adopt a following distance behind the vehicle in front that allows sufficient space to react and avoid a collision.

76 Mr Johnston referred to the terms of the RTA Guide that, when following another vehicle, a total of three seconds crash avoidance space was needed to react and respond to a situation in front of a driver and that even longer may be needed in darkness. This Guide has remained to the same effect over many years.

77 At the time of his second report Mr Johnston had further information which superseded some of the assumptions he had made in his first report. In his second report Mr Johnston wrote that his conclusions (in his first report) were essentially unchanged. He wrote:

"3.5 My conclusions are:

Mr Tran was likely travelling at a speed less than 3.6 metres/second (13 km/h) given the distance he had travelled, his ability to speak to Police on a telephone and call his companion, and his level of intoxication,

Ms Dos Santos approached the point of impact at a speed of around 70 km/h, a short distance after entering the 80 km/h zone from a 60 km/h zone,

Ms Dos Santos' vehicle struck Mr Tran whilst braking and travelling at around 40 km/h,

A preceding vehicle driven by Mr Nigel Gordon had the ability to detect Mr Tran and veer around him, providing an indication of an imminent hazard to Ms Dos Santos and improving her line of sight to Mr Tran,

Mr Keramidas - determination that Ms Dos Santos was travelling around 2.5 seconds behind the preceding vehicle indicates that she was travelling closer than the 3 seconds advised by the Roads and Traffic Authority handbook,
The preceding vehicle was likely to be accelerating into the 80 km/h from 60 km/h which should has (sic) resulted in a greater following distance by Ms Dos Santos,

78 In his oral evidence in chief Mr Johnston said that assuming a vehicle was travelling at 70 kph the normal allowance for reaction time is 1.5 seconds where there is no warning and that a collision with Mr Tran should have been avoided if she had been able to see him at a distance of 34.2 metres back (T305). This was subsequently amended to 37 metres (T311).

79 Mr Johnston said that on the assumption that as Mr Gordon was proceeding there were two men walking, the leading man was on the roadway and he swerved around him and that Mrs Dos Santos observed the swerve this would have decreased her detection/reaction phase to about one second, but it was impossible to be accurate - there would be a dropping of about half a second for the detection phase

80 Mr Johnston said that the illuminated distance from the driver to an object depends on the reflectivity of the object. With a bright coloured object and light clothing type object generally the research suggests about 70 metres, whereas to a darker object the research generally suggests about 50 metres.

81 Mr Johnston said that if Mrs Dos Santos was following Mr Gordon's car at a distance of 10 metres and his headlights are on low beam and assuming she can physically see an object in his bright clothing on the left hand side of the road in front of Mr Gordon's car, she would have the benefit of the range of 70 metres plus 10. If Mrs Dos Santos were 30 metres behind Mr Gordon's vehicle and there was a bright object, a man in a yellow jacket, that man would be visible at 100 metres if the same assumptions applied, substituting 30 for 10 metres.

82 Mr Johnston expressed these opinions:

(a) it would not have been possible for Mrs Dos Santos if she was travelling 10 metres behind Mr Gordon's vehicle to brake sufficiently to avoid hitting the plaintiff or to swerve out of the way (T312).

83 Mr Johnston said that he had no knowledge of the detail of Mr Gordon's evidence. He had not heard or seen the transcript of his evidence. Apparently, he had been told that Mr Gordon had given evidence and been asked about the position if the pedestrians were walking. Mr Johnston said he had always worked on the premise that the man wearing the yellow shirt was Mr Van Le. Mr Johnston was asked to assume that Mr Gordon had said, "As I proceeded I remember seeing a man in a yellow shirt roughly in the middle of my lane [the southbound lane of Henry Lawson Drive] near the edge of, at the end of where the tennis courts were" and that the man in the yellow shirt was walking north.

84 Mr Stitt QC put in a fairly full summary, to Mr Johnston the effect of the remainder of Mr Gordon's evidence.

85 On the assumption that Mr Gordon's evidence and the sequence of events were accurate Mr Johnston agreed:

a) there was a perception/reaction time by Mr Gordon to perceive the man in the yellow shirt in the middle of the southbound lane, and- 1' seconds;

b) ime elapsed to swerve into the right hand lane and then back into the left hand lane, and- 2 to 3 seconds as a range;

d) time elapsed as he continued to drive ahead in a southerly direction, and;

e) time elapsed for him to look into his rear vision mirror and back to the road, and;

f) look back in his rear vision mirror and back to road, and;

86 Mr Johnston agreed as to (c)-(f) there would be a time period. It was difficult to say precisely what that period would have been. Mr Johnston seemed to agree that if all the events were added together they could take 6-8 seconds. I do not accept this exercise. It is theoretical and probably does not represent what happened.

87 Mr Johnston agreed that if the correct sequence of events was as deposed to by Mr Gordon, it was physically impossible for Mrs Dos Santos to have been travelling 10 metres behind Mr Gordon and that it was likely that it was impossible for Mrs Dos Santos to be travelling only 20 metres behind Mr Gordon (T328).

88 Mr Johnston agreed that if you accepted the time estimates of all the sequences mentioned Mrs Dos Santos could have been travelling up to 40 or 50 metres behind Mr Gordon's car (T328).

89 At T329 Mr Johnston was referred to the fifth conclusion of his second report (top p 14) and it was put that it was incorrect to refer to a preceding vehicle driven by Mr Gordon having the ability to detect Mr Tran and veer around him, providing an indication of an imminent hazard to Mrs Dos Santos and improving her line of sight to Mr Tran. Mr Johnston agreed that this conclusion had to be re-worked, especially the reference to Mr Tran. Mr Johnston pointed out that the swerve was still there, the indication of a potential hazard was still there, as was the swerve improving the line of sight. Mr Johnston agreed that the underlying geometry would change.

90 Mr Johnston agreed that if Mrs Dos Santos saw the manoeuvre of Mr Gordon's vehicle and the man with the yellow shirt her attention was likely to be focussed upon the swerving of the vehicle and the object around which it swerved.

91 Mr Johnston agreed that the likely approach speed of the defendant was between 65 and 70 kph approximately (T332). He did not disagree that the likely speed of the defendant at the commencement of the skidding was in the order of 65 kph. It was not quite true to say that the skid mark is not made until the wheels have locked. There is a short period of impending skid which is much lighter. He did not know if the police in this case included the very light portion at the start. Once the deep imprint is left on the ground the wheels are then locked and the car cannot be steered without releasing the locked wheels.

92 The direction the car is heading is the direction in which the vehicle will skid at the point the wheels are locked. The perception/reaction time to elapse involves the application of the brake at a time before the skid marks are laid. This is a short period of time.

93 He did not agree that the distance at which the defendant would need to have been travelling to successfully brake to a halt would be between 62½ and 69.7 metres. He thought she could "stop in shorter than that distance behind" (T333).

94 Mr Johnston agreed that in order to judge the reasonableness of a driver's behaviour these factors would have to be determined:

i) the time at which the driver would be able to detect the plaintiff’s presence on the road

ii) the augmented distance which can be seen with the use of the headlights on the defendant's vehicle does not apply until the car in front moved out of the direct line of sight between the defendant's vehicle and the object

95 Mr Johnston agreed that the line of the skidmarks on the police diagram proceeds in a direction that takes the driver's side wheels almost to the centre line. One possibility is that there was an attempt to swerve but the brakes were locked. There was emergency braking by the defendant.

96 In re-examination Mr Johnston was asked to make the following assumptions:

Mrs Dos Santos is travelling at about 70 kph. Mr Van Le is the man in yellow. The plaintiff was about 8-10 metres behind him. Mr Van Le is on the roadway as described by Mr Gordon and Mr Gordon made the manoeuvre described in his evidence.

Mrs Dos Santos was focussing on what caused Mr Gordon to make the manoeuvre, that is the environment and the object or objects leading to the manoeuvre.

97 Mr Johnston was asked whether they would make a significant difference in either the time available to Mrs Dos Santos to swerve or brake. Mr Johnston gave this evidence at T340:

"A. If the driver was responding to a person on the roadway and that person on the first assumption was the person the car was swerving around, and they were in a certain position, they would have had a certain time before they reached that person to react. If they were then - there was a further person behind them and they were deeper back or further in the environment, then there would obviously be more time elapsed before they reach that person. Everything else being equal, they would obviously take longer before they reach that person, who was further back.

A. That's right."

"...the environment because it was in the same primary cone of vision. They were still in the same area of the roadway where the person was looking. "

"Well, it's 5 degrees and your primary cone of vision, it's larger than your peripheral vision. The distance they were down the roadway, they would have been well within that 5-degree range of vision to the approaching driver. "

and

Mr Keramidas

98 The defendant relied heavily on the evidence of Mr Keramidas who prepared a detailed report based upon many assumptions provided by the legal representatives of the defendant. While there was material on which the assumptions of Mr Keramidas could be based I am not satisfied as to the accuracy of some of the assumptions. While at some stage or stages on their journey north along Henry Lawson Drive the plaintiff and Le were jogging they also walked for some of the distance and were probably walking when they were observed by Mr Gordon immediately before the accident. I do not discount what can be heard on the tape produced by the Police Department and the enhanced version. The plaintiff may not have been 8 to 10 metres behind Van Le when he and the plaintiff were seen by Mr Gordon and by Mrs Dos Santos. The plaintiff was probably a shorter distance behind Mr Van Le. Mr Gordon said that he saw both men before he commenced to swerve. It is not correct that Mr Gordon did not see a second man until he swerved. Mr Gordon could not say whether the second man was on the gravel shoulder or the bitumen shoulder.

99 It is not correct that the defendant was travelling some distance greater than 30 metres behind Mr Gordon. While Mr Gordon estimated his speed at 50 to 70 kph I think that the probabilities are, given his natural caution and the small/older car he was driving, that he was travelling about a little over 50 kph. Mrs Dos Santos was travelling at about 70 kph and closing on Mr Gordon in her more powerful car.

100 Mr Keramidas was asked to assume that the defendant saw a man with a yellow shirt move from approximately the centre of his lane to the eastern side of Henry Lawson Drive. There is no direct evidence of the defendant seeing Van Le doing so. Nor is this an inference which should be drawn. I am not prepared to speculate as to what the defendant saw. There is no direct evidence that the defendant saw Van Le pass down the passenger side of her vehicle. Nor is this an inference which should be drawn. Again I am not prepared to speculate as to what the defendant saw. What is known is that Van Le was not struck by a motor vehicle and that he says he was running along the side of the road and heard a thump, that is of the plaintiff being hit and that the plaintiff was behind him. An estimate of 4 to 5 meters was given by Van Le (T77 1142 - 43). At T79 (1121-25) Van Le said that he did not see the car hit the plaintiff.

101 Mr Keramidas was asked to assume that "almost immediately thereafter", that is, after the defendant saw Van Le pass down the passenger side of her vehicle, she saw the plaintiff running towards the front of her vehicle in about the middle of her lane in a slightly diagonal direction towards the eastern side of Henry Lawson Drive.

102 There was no direct evidence as to this. Nor should inferences to this effect be drawn. The defendant's statement was that she "saw two males running along directly in the middle road towards us heading north in our lane." She was driving along and saw Mr Gordon's car swerve to the right "and then back to the left into the lane". She asserts that "[w]ithin a second" she saw the second male "standing in the middle of the road." She "braked harshly and the next thing this male hit the windscreen on the left passenger side of the car."

103 Mr Keramidas said that since his report was prepared he had read the transcript of Mr Gordon's evidence. If that evidence was accepted as accurate he thought that none of the assumptions he had been asked to make and set forth on pages 7 and 8 of his report was inconsistent with the evidence of Mr Gordon. Mr Keramidas thought that the assumptions provided somewhat more accuracy. Mr Keramidas referred to Mr Van Le's evidence that the plaintiff was about 8-10 metres behind the man wearing the yellow T-shirt. Mr Keramidas thought that "the positioning of Mrs Dos Santos' vehicle behind him [Gordon] was certainly correct and the other elements as well" (T403).

104 Counsel for the defendant referred Mr Keramidas to and read him substantial portions of Mr Gordon's evidence. Mr Keramidas had a copy of Mr Gordon's evidence and followed it as counsel took him through it. Subsequently (T438) Mr Keramidas agreed in his evidence in chief that some parts of his report needed to be re-assessed if Mr Gordon's evidence was correct. Mr Keramidas adhered to the substance of his conclusions (T442-3).

105 Mr Keramidas said that Mr Gordon's initial observation of seeing the man in the yellow shirt on the roadway accords with his expectation of the potential detection distances which would be available to a driver travelling along this section of the roadway. Mr Keramidas said that Mr Gordon's description of the man emerging from the dark was consistent with what he would expect. Mr Keramidas said that he would have expected the observation of Van Le to have occurred first. This was because of Van Le's bright yellow top, light coloured trousers and cap being far more easily detectable in the headlights. Mr Keramidas said that the range at which he would expect to see someone in that situation would be somewhere between 50 and 70 metres and depended on the precise colouring of that yellow top. Mr Keramidas expected the detection range to exceed 50 metres but it was difficult to estimate by how much. Mr Keramidas said that he did not disagree with Mr Johnston's assessment of a 70 metre visibility distance but thought that would be towards the upper end of the range and that the likely detection distance would be a little less.

106 Because the plaintiff was not wearing bright clothing Mr Keramidas expected that at best the plaintiff would be detectable at a distance of 50 metres or perhaps slightly less. If the plaintiff was 2 or 3 metres to the left of Van Le, Mr Keramidas would expect that the distance at which the plaintiff would be visible to be somewhat less.

107 Mr Keramidas said that-with Mr Gordon having the benefit of a very bright target ahead and that target being potentially detectable at 50-70 metres he would require about 1.5 seconds of perception-reaction time before commencing any manoeuvre. Mr Keramidas thought that Mr Gordon was probably travelling at less than 70 kph and that the expected time it would take to complete the full swerving manoeuvre was about three seconds. He said that at the end there would also be a number of seconds after that to steady up the vehicle, keeping surveillance (looking ahead) rather than immediately seeing an event behind him. Mr Keramidas added:

"... perhaps six seconds in total would be the lower end range ...given the perception-reaction-manoeuvre time, straightening up and having that first set of glances [in his rear view mirror] as to how much more than that I can't be certain. It could be six, seven, eight seconds."

108 I accept the evidence of Mr Kahla that the white car (Mr Gordon's) swerved into the northbound lane "just a little bit". This is an important indication of the extent of the swerve taken to avoid Mr Van Le. It was minor. I have not accepted various time estimates associated with the swerve as later explained nor that Mr Gordon first observed the silhouette of the plaintiff in the air some 6 to 8 seconds after he first noticed Mr Van Le.

109 Mr Keramidas said that if it is accepted that the time at which Mr Gordon observed the silhouette in the air was 6 to 8 seconds after he first noticed Mr Van Le then effectively the distance that the defendant's vehicle would have been travelling would be 6 times 70kph; 70 kph equates to about 19.4 metres for each second of travel. Multiplying that by 6, that is about 116 metres. He thought that at the point at which Mr Gordon's vehicle is moving around Mr Van Le is about the time that Mrs Dos Santos' vehicle would be clearing the immediately preceding intersection and coming into that block (T413). This was on the basis of both vehicles travelling at constant speeds. On these factual assumptions Mrs Dos Santos would not have been travelling at 10 metres behind Mr Gordon's car. However, I do not accept those factual assumptions apart from the mathematical calculations. Mr Keramidas stated (at T414) that if Mrs Dos Santos was travelling 10 metres behind Mr Gordon the impact would have occurred prior to Mr Gordon actually recovering the southbound lane, that is, while he was in the process of swerving back into the left-hand lane.

110 Mr Keramidas made the following written observations as to the physical evidence-

Skid marks

111 These have a tendency towards the centre of the roadway, contrary to the direction which would have been expected if the vehicle had been travelling directly in line with the path of the roadway. The angle of the skid marks therefore indicates that the driver has attempted an evasive steering manoeuvre to the right prior to and through to the time of the wheels becoming locked. Any steering manoeuvre prior to the commencement of the tyre skid marks would only have an effect up to the wheels locking, after which any additional steering input would not result in the vehicle deviating from its path.

112 The front offside tyre of the Ford Falcon was about 200mm from the centre line at the end of its skidding, that is the vehicle had moved a further half metre towards the centre of the roadway during the skidding process, that is at an angle of just under 1.4 degrees. The total braking distance of the Ford Falcon was about 22.1 metres.

113 Pre-impact skidding was heard in the audiotape of the emergency call suggesting that impact must have been further than 0.9 metres from the edge line suggested by police.

Rest position of plaintiff

114 His rest position includes a relative distance from the pole near the termination of the skid marks and a position to the left of the skid marks on the gravel shoulder. This meant that the trajectoryfollowed by the pedestrian during his post-impact motion was to the left of the vehicle which is consistent with an impact having occurred around the nearside corner of the vehicle.

Damage to Defendant's Ford Falcon

115 There was some contact near the front nearside corner of the vehicle and an indication of a strike to the windscreen about mid height. The height of the impact strike to the windscreen can be used as a guide to the likely impact speed.

116 Mr Keramidas after making a calculation based on the length of the skid marks, and the application of a mathematical formula, expressed the view that it was quite likely that the vehicle's approach speed was between 65 and 70 kph. He thought that if the defendant's vehicle was travelling at 70 kph braking was likely to have commenced about 3.5 metres further south and would have taken a further 0.2 of a second to achieve.

117 Mr Keramidas stated that he had been asked to assume that at some point Van Le ran from the western shoulder onto the roadway, and in the course of doing so was in the middle of the southbound lane when observed by Mr Gordon. While at some earlier point of the journey Van Le moved from the western shoulder onto the roadway and crossed, it is incorrect to assume that it was in the course of doing so that he was observed by Mr Gordon in the middle of the southbound lane. Mr Keramidas records that he "has been asked to assume that Mr Gordon observed the plaintiff on his right-hand [western] side, on the gravel shoulder just off the edge of the bitumen at a time when Mr Gordon was in the process of swerving around Mr Le". Such an assumption is not correct. Perhaps the assumption should be that Mr Gordon observed the plaintiff on the eastern side of Henry Lawson Drive. Mr Gordon had seen the man with Mr Le probably before and not later than when Mr Gordon began his swerving manoeuvre. Mr Gordon could not recall which of the two men he saw first and I am not prepared to make a positive finding on this point.

118 Mr Keramidas wrote that several seconds later than when Mr Gordon was in the process of swerving around Mr Le the plaintiff came into collision with the front left portion of the defendant's vehicle. In the present case the plaintiff submitted that it was important to quantify the number of seconds as the seconds elapsed pointed to the distance likely to have been travelled. Counsel for the plaintiff recognised that such an approach was inviting the Court to attach importance to fine details where mistakes could be made.

119 Mr Keramidas, on the basis of his analysis and his assumptions, concluded:

"It therefore appears that the plaintiff has entered the roadway and run either diagonally in a north easterly direction or across the road in an easterly direction between Mr Gordon first observing him and the plaintiff's eventual position at the point of impact. He would, in essence, have been moving from the Defendant's right side to her left side as the two approached each other and based on assumption 10 has moved at a slight angle towards the eastern side of the road,"

120 I do not agree with that conclusion. That is not what happened. When Mr Gordon saw Van Le and the plaintiff they were close together with Van Le probably in the southbound lane and the plaintiff virtually beside him on the eastern side of the road even if slightly behind him. I think that Mr Gordon's evidence that when he saw the two men they were walking is probably correct, although it is difficult to be certain about this detail.

121 Mr Keramidas thought he detected a slight deviation in the skid marks. He said that the distance of the deviation had not been measured and at best could only be estimated off the photographs taken by the police. He had difficulty in identifying the deviation in the photographs in evidence. He described the deviation as subtle. He felt he had had access to better photographic prints where it was possible to pick up the deviation. Mr Keramidas wrote that the best estimate he could provide was that the deviation (and the point of impact) occurred about two thirds of the way along the skid mark - it was not precise.

122 Mr Keramidas thought:

(a) as earlier mentioned, the point of impact is likely to have been somewhere between 7.7 to 14.8 metres from the commencement of the skid marks and about 1:1 to 1.25 metres west of the eastern edge line applicable to the southbound lane,

(b) the defendant vehicle's speed at impact is likely to have ranged somewhere between 37kph (for the southern extreme of the likely impact area) to about 52kph (for the northern extreme).

(c) as the plaintiff has been struck by the leading edge of the defendant's vehicle and subsequently struck areas of the bonnet and windscreen, the form of impact configuration would have been of a `wrap' type; the resulting projection distance for the plaintiff would have been somewhere between 13 metres for the northernmost point of probable impact and 5.9 metres for the southern extreme.

(d) the potential speed of the plaintiff running towards the car needs to be taken into account. (Mr Keramidas tended to rely on the evidence of the taped telephone call and the plaintiff fleeing.)

123 Mr Keramidas explained that a vehicle's stopping distance comprises two main elements; first, the perception/reaction distance for which 1.5 seconds is conventionally allowed, and, secondly, the braking distance. In total the stopping distance required from 65kph would be just over 49 metres while from 70kph this distance increases to just under 55 metres. The total time taken from the commencement of the perception phase to the end of the braking phase would be in the order of four seconds.

124 Mr Keramidas wrote that he had been asked to assume that the defendant's vehicle was travelling at a distance greater than 30 metres behind Mr Gordon's vehicle based on Mr Gordon's observation of the defendant's vehicle after he performed his evasive manoeuvre. Mr Keramidas thought that as the evasive manoeuvre was likely to have taken 1.5 seconds or more the defendant's vehicle was likely to have been at least 34 to 42.5 metres behind at the start of Mr Gordon's evasive manoeuvre, Mr Gordon travelling between 10kph and 30kph slower than the defendant.

125 The plaintiff was not on the western side of Henry Lawson Drive as Mr Gordon's vehicle approached and began its slight swerve. The plaintiff was on the eastern side of the roadway beside Mr Van Le, albeit slightly behind him. Both men at that stage were probably walking and in a northerly direction.

126 Mr Keramidas wrote that the likely detection range (that is the range at which the defendant would detect the plaintiff would be somewhere in the order of 25 metres to 40 metres, dependant largely on the path taken by the plaintiff and that in all likelihood the driver would be unable to respond quickly enough to avoid impact at that range.

127 During Mr Keramidas' evidence in chief I was taken through the plans to scale prepared by him and attached to his report and which illustrate the points he made as well as depicting the area of the accident.

128 Mr Keramidas said that Collision Diagram B incorporates the position of Mr Gordon's vehicle during the swerve manoeuvre and the approximate position of the approach path of the northbound van of Mr Kahla and shows the minimum distance of the defendant's vehicle behind Mr Gordon's vehicle on the plan, which he thought was about 30 metres. That was based on an assumption he was given. Mr Keramidas said that if Mr Gordon's evidence was accurate, Mrs Dos Santos's vehicle would have been a much greater distance behind Mr Gordon's vehicle at the time the swerve commenced.

129 Mr Keramidas said that Mr Kahla's van would have had to be broadly in the area he depicted on the plan.

130 Mr Keramidas (at T443) stated:

"... if you were to take the plaintiff’s body as a whole, he is somewhere around about one-third to one half of the lane width into the south-bound lane ... he is there at the point of impact, as to how he gets there, whether he moves immediately there from the shoulder, whether he moved onto the roadway and travelled into a northerly direction for some distance we can't say."

131 As to the contention by Mr Johnston, the plaintiff's traffic engineer, that a safe following distance was one of three seconds behind the car in front as stated in the RTA guidelines Mr Keramidas responded:

(i) even taking the minimum likely times based on Mr Gordon's description Mrs Dos Santos' vehicle was significantly further back than three seconds.

(ii) there is no basis on which three seconds as opposed to two seconds would be preferred.

132 Mr Keramidas expressed these conclusions which were taken from pp.3940 of his report and modified at T447-449 as indicated:

1. The likely approach speed of the defendant was estimated at between 65kph and 70kph in an 80kph speed zone.

2. The speed of the defendant's Ford at the commencement of the skidding is likely to have been in. the order of 65kph while her speed at the point of impact is likely to have reduced to about 40kph.

and

4. The street lighting in the vicinity of this incident would not have assisted the defendant in the early detection of the plaintiff with the maximum likely detection range under the defendant's headlights being "25 - 40" [amended at T448 to 50] metres. [Mr Keramidas would also delete the words "given that the plaintiff commenced his motion from the righthand side of the roadway when Mr Gordon passed his position.] Both changes were made in the light of Mr Gordon's evidence.

5. It is extremely unlikely that the defendant could have avoided impact given the circumstances of this case.

6. The swerving action by Mr Gordon is not likely to have produced any benefit (or disbenefit) to the defendant's potential to avoid impact. The reason for this is that while the swerving action by the vehicle ahead would have heightened her alertness, it also would have diverted her attention as she would be expected to have focussed on that vehicle's motion, at least momentarily. [Mr Keramidas said that this was correct but probably should also include that Mr Le's position on the roadway would also have attracted attention, particularly if she caught a glimpse of Mr Le in Mr Gordon's headlights as he attempted to swerve. There was Mr Le's bright and light coloured clothing and the plaintiff's duller clothing and a lesser visual cue.]

8. ... the response of the defendant to initiate a swerve [initially] and apply emergency braking was appropriate under the circumstances.

133 Mr Keramidas' last conclusion deals with the reports of Mr Grant Johnston, the expert traffic engineer called by the plaintiff.

377 In his report of 13 November 2006 Dr Spira estimated Mr Tran's life expectancy to be of the order of 5-7 years. Dr Spira had earlier referred to the risks faced by the plaintiff including aspiration pneumonia and significant infections requiring intravenous antibiotic therapy.

378 In cross examination Dr Spira said that, to some extent, his life expectancy estimate of the plaintiff was dependant on an absence of cognitive responses. It was an important part of the equation as were his absolute immobility and depending on others for all aspects of care.

379 Dr Tam's estimate of the plaintiff's life expectancy was 2-5 years from 7 August 2007.

380 In my opinion Dr Buckley's estimates do not sufficiently allow for the permanent parlous condition of the plaintiff and the risks he faces. Dr Tam's estimate took into account, "a bad run of severe brain injuries multiple contractures...over four limbs and multiple episodes of aspiration pneumonia infection...and other life threatening complications...". He relied on these and other high fatality risk complications which may occur at any time. Dr Tam had not seen the plaintiff since September 2006. His physical condition has improved since then and he has continued to survive. Dr Spira was aware of the devotion of the plaintiff’s mother and brother and the practical help they gave.

381 In my opinion considerable allowance has to be made for that valuable assistance. I would infer from the evidence of the elder brother and Ms Lanyon that the plaintiff is probably aware of the general support of his mother and brother but not the details and also the support of his carers but again probably not the details of that support. His awareness and appreciation may well fluctuate.

382 I have considered the opinions of the doctors. It is 5 years since the accident occurred. The plaintiff has proved to be a survivor in very difficult circumstances. Whilst fully appreciating the serious risks to the health of the plaintiff but based upon the improvements of his physical condition since late 2006, his demonstrated power of survival, the continued support of his brother, his mother and his carers and the proposed appointments of additional carers I would estimate his life expectancy at 9-11 years and take a mean of 10 years from the date of this judgment.

Loss of Earning Capacity

383 The defendant accepted that the plaintiff has no earning capacity and never will have any such capacity. As pointed out in Norris v Blake (No.2) (1997) 41 NSWLR 49 at 64 the relevant head of damage is the loss of earning capacity. The plaintiff has proved a substantial diminution in earning capacity which has been and will be productive of financial loss. The defendant submitted that the appropriate approach in assessing the damages for his impairment of earning capacity is to apply the wages which he in fact earned with some slight increase for the future having regard to the possibility that wage rates would increase.

384 Mr Tran commenced employment at Star City Casino in September 1999 as a kitchen hand washing dishes, pots and pans and cleaning the kitchen. He became a cocktail server-casual in the Food and Beverage Department of Star City effective from 2 October 2000. He was confirmed in this position effective from 30 October 2000. Mr Gush of Star City said that he commenced employment with Star City Casino in August 2000 as a bar attendant. Mr Gush was appointed as a Beverage Supervisor and subsequently to the position of Assistant Food and Beverage Manager. On occasions, probably at least four times per week, he worked on the same shifts as Mr Tran. Mr Gush said that Mr Tran had moved from a back of house position to a front of house position where he inter-acted with customers and dealt with cash. He had to have a good grasp of the English language and had to comply with and administer the Casino's responsible service of alcohol policy. Mr Tran also had to administer any responsible gambling issue that may arise in his position.

385 In March/April 2001 Mr Gush was appointed to the position of Beverage supervisor. Mr Tran fell under Mr Gush's supervision for about just over a year. Mr Gush said that Mr Tran did his work well, and importantly, his customer service was very good. He worked well unsupervised which was important. Mr Gush said the level of tipping of bar attendants and cocktail servers was a minimum of between $100-and $150 per week.

386 The written terms of the plaintiff’s employment, as specified in Star City's letters of 31 August 2000 and 26 October 2000 included:

Base salary- $25,111.0080 per annum plus shift loadings dependant on the hours worked. The salary was based on working 76 hours per fortnight. There was a base rate of $12.7080 per hour.

387 The letters stated that Mr Tran was to report to the Beverage supervisor. The pay records of the plaintiff as a cocktail server for the period of 13 October 2000-13 November 2003 show that he received -

Gross Wages	Net
$98, 135.33	$76, 227.68

Gross Wages	Net
$31,000	$24, 000

388 Mr Gush said that if Mr Tran had continued to work as a cocktail server his base salary would have been $28,500. Shift loadings and penalty rates would have to be added. Mr Gush produced records of the parent company showing that the ordinary hourly rate for a bar attendant/cocktail server at Star City had risen in March/April 2008 to $17.01 per hour. There were no corresponding figures for the years between November 2003 and March 2008. In August-October 2000 the base hourly rate was $12.7080. I have proceeded on the footing that the base rate is what is later described as the ordinary hourly rate. The increase over 5 years is between 33 and 34 per cent.

389 The plaintiff relied on these figures of his earnings:

Period	Total Nett Earnings	Average Nett per week
30.6.00 – 28.6.01	$25, 369	$487
29.6.01 – 27.6.02	$23, 627	$455
28.6.02 – 26.6.03	$25, 112	$482
27.6.03 – 11.12.03	$11,110	$465

390 Mr Gush produced the records of three employees of Star City (Tabcorp, being the parent company which handled the wages). Two of these employees were bar attendants and one was a cocktail server. Bar attendants and cocktail servers are paid the same wages and do shiftwork.

391 The plaintiff relied on this analysis of the pay records:

Period Year Ended	Bar Attendant 1 (KOOL)	Cocktail Server (Guo)	Bar Attendant 2 (Madigan)	Average
26.6.03	$499 nett p.w	$527 nett p.w	-	$513
Year Ended
24.6.04	$558 nett p.w	$544 nett p.w	-	$551
Year Ended
23.6.05	$527 nett p.w	$568 nett p.w	$547
22.6.06	$537 nett p.w	$551 nett p.w	$544
23.6.06 – 23.11.06	$591 nett p.w	$589 nett p.w	$590
Fortnight ended
23.3.08 incl. Easter weekend Fortnight ended	$755 nett p.w	$739 nett p.w	$739	$744
6.4.08	$650	$619	$759	$676

392 There are two major difficulties in using amounts paid to other cocktail servers and bar attendants. First, the number of hours worked may not coincide. Secondly, the shifts worked may vary. The hourly rate payable varies according to the shift worked. The records of the amounts paid to the three employees cannot be used directly. These employees and the amounts paid to them are not directly comparable. At best they amount to no more than a general guide of the amounts that could have been earned by the plaintiff. For the year ended 26 June 2003 the plaintiff earned $482 per week net whereas bar attendant 1 earned $499 per week nett and the cocktail server $527 nett per week, the mean being $513. For the period 27.6.03 to 11.12.03 the nett earnings of the plaintiff are shown as $465 nett per week. The payment made on 11 December is unusually large and there is no explanation for this. I doubt if this should be taken into account. For the year ended 24 June 2004 bar attendant 1 earned $558 nett per week and the cocktail server $544 nett per week.

393 The assessment of the nett weekly earning capacity of the plaintiff from 15 November 2003 onwards is a matter of some difficulty. There is a danger in taking a period of less than one year. The busy and the less busy periods have to be taken into account and an average struck. The period of 27.6.03 to 15.11.03 may, on the whole, be a less busy period. When considering the period 15.11.03 to 24.6.04 it is necessary to take into account the festive and holiday season of mid December to mid January, the Easter holidays and possibly the Queen's birthday weekend and holiday. I think it is probable that on average the plaintiff would probably have earned on average $470 nett p.w for the period 15.11.03 to 24.06.04.

394 For the period from 24.6.04 to 23.6.05 Bar Attendant 1 earned $527 nett p.w and the cocktail server $568 nett p.w. The plaintiff in earlier years tended to earn a little less than they did. Allowance also has to be made for inflation and the general increase in wages. While there is evidence of the plaintiff showing enthusiasm for his work it is not clear how many hours he wanted to work and how many hours would have been available to him and on what shifts. For the 12 months from 24.6.04 to 23.6.05 I should proceed on the basis that he would probably have earned $500.00 nett p.w. For the year from 23.6.05 to 22.6.06 bar attendant 1 earned $537 nett p.w. and the cocktail server $551 nett p.w. When a mean is taken there was a drop of $3 per week in the earnings of bar attendant 1 and the cocktail server from the year ended 23 June 2005 to the year ended 22 June 2006. Some allowance should be made for inflation and the likely increase in the wages paid. For that year I propose to proceed on the basis that the plaintiff would probably have earned $510 nett p.w.

395 For the period 23.6.06 to 23.11.06 bar attendant 1 earned $591 nett p.w and the cocktail server $589 nett p.w. Again undertaking the exercise previously mentioned I would proceed on the basis that the plaintiff would probably have earned $540 nett p.w during the period mentioned. There is little evidence of the position between 23.11.06 and November 2008. As the Table earlier set out shows bar attendant 1 and the cocktail server received greatly increased remuneration for the fortnight ending 23 March 2008 (including Easter weekend) and increased remuneration for the fortnight ending 6 April 2008. A twelve month period is a better guide as the highs and lows tend to even out. The ordinary hourly rate had increased to $17.01 by March 2088-1-pfeee€d on the basis that about 23 November 2006 the plaintiff would probably have earned $570 nett p.w. if he had continued as a cocktail server. It may well have been more but the evidence does not allow me to so conclude. The increase in the hourly rate from $12.7080 to $17.01 amounts to an increase of $4.3020 which is between 33 and 34 per cent. It would be incorrect to apply $570 nett p.w. to the whole of the period from 23.11.06 to the present. It would be appropriate to apply the rate of $570 per week from 23 November 2006 to 30.06.07 and from 1.7.07 to date a rate of $600 per week.

396 Mr Gush said that the drink waiters (cocktail servers) and the bar attendants are not salaried employees. If they do not turn up for a shift they are not paid unless there is relevant reason, for example, production of a medical certificate, a funeral, compassionate leave, in the case of full time employees. On the other hand, the Supervisors are salaried employees.

397 There was a contest whether Mr Tran, if he had remained with Star City, would have become a supervisor. He had never applied for the position of supervisor and he would have to wait for a vacancy to occur. As at November 2003 he had worked as a cocktail server for just over three years. There was no evidence that he wanted to become a supervisor. Since 2003 vacancies for supervisors had occurred. They had been filled from the ranks of the bar attendants and people working in positions such as that of Mr Tran.

398 Mr Gush indicated that Mr Tran would have been eligible to apply for the position of supervisor and his application would have been considered along with those of the other applicants. Mr Gush said:

"It is very subjective as to exactly whether he would have filled the position but he was an ideal candidate to apply. He had all the attributes, the work ethic and the personality to be seriously considered for the position".

399 Mr Gush added that there are a lot of employees who are ideal candidates but sometimes they are not interested.

400 Mr Gush said that Mr Tran's TAFE trained hospitality qualification was an advantage. Mr Gush said that if Mr Tran had had four to five years experience as a cocktail server and had applied at that point for a supervisor's position Mr Gush would have supported Mr Tran's application. Mr Gush described his role in the decision making process as very important. He said that if he wants someone he usually gets them. He agreed that the ultimate decision was made by the Food and Beverage Manager and an officer from Human Resources.

401 Counsel for the defendant placed great weight upon the plaintiff being verbally counselled on two occasions. On 24 February 2001 he was counselled for not providing medical certificates for 17 sick days (7 Sundays, 10 Saturdays and 6 after RDO's). There were 21 sick days in 11 months. This probably included part of the period the plaintiff worked as a kitchen hand. He also failed to provide a minimum of 2 hours notice prior to shift of being unable to attend.

402 He was required to provide a doctor's certificate for sick days and a minimum of 2 hours notice prior to shift when unable to attend. The trend of absenteeism was to cease immediately. He received the usual warning if there were any further breaches.

403 The plaintiff received verbal counselling on 12 November 2003. Apparently on 8 November 2003 he was asked by his supervisor to go to Star City Lounge and refused to go. It is recorded on the Counselling form that he would accept any reasonable request from his supervisor or manager and that if he had any queries about his duties he should ask and that he could contact a nominated person by phone if he had any problems. It was further noted, that he should carry his 'work to back form' with him at all times on shift. He was given the usual warning if there were any further breaches.

404 The reference to "work to back form" may be a misnomer. One possibility is that Mr Tran declined to do what he was asked and did not have his "back to work form" indicating a restriction with him. What has been written in the counselling form is less than comprehensive. Mr Gush did not regard these instances as standing in the way of the plaintiff’s promotions. It was apparent that Mr Gush attached prime importance to the plaintiff’s customer service being very good. Next was his ability to work unsupervised.

405 It is probable that those making recommendations and selection decisions would concentrate on the positive features that they regarded as important to advance Star City's business interests, for example, very well serviced customers spending their money. While not ignoring past deficiencies of the kind revealed in the counselling forms, the recommending officer and the selection panel were unlikely to give them great weight. It was evident that Mr Gush thought highly of the plaintiff's skills and the plaintiff. It is probable that the selection panel would have acted on Mr Gush's recommendation as the plaintiff, if appointed as a supervisor, would have come under Mr Gush's control and reported to him as his immediate supervisor. It is probable that if the plaintiff had applied for a position as a supervisor after Mr Gush was appointed to his present position in 2007 the plaintiff would probably have secured a position as a supervisor if he had applied. I am not able to make a finding as to what would have occurred prior to Mr Gush's appointment. I am not satisfied that the plaintiff would have been promoted prior to 2007.

406 The more difficult question is whether Mr Tran would have applied for a position as a supervisor. Accepting, as I do, the evidence that Mr Tran's customer service was very good and that his work skills were good, it is probable that his income from tips was substantial. He might have preferred to remain as a cocktail server. The evidence does not enable me to say whether the plaintiff treated the whole or any part of his tips as taxable income. I make no assumption as to this.

407 The plaintiff relied on the net weekly salary paid to two Beverage Supervisors (based on the data contained in Ex AE). The nett weekly salaries paid were:

Salary	Beverage	Beverage	A
June 2006	$744	$772	$758
September 2008	$766	$795	$780

408 That represents a substantial increase on the salaries earned in the period 23.06.06 to 23.11.06 by the bar attendant and the cocktail server of an average of $590. I did not regard the figures for the period ending 23 March 2008 (including Easter weekend) as being a reliable guide to the average nett weekly earnings of a bar attendant/cocktail server.

409 If I am correct in taking and applying a figure of $600 nett per week from 1 July 2007 to date that leaves a difference of $158 nett per week to $180 nett week between the nett salary of a cocktail server and a supervisor. To bridge the financial gap would require a high level of tipping, especially if the tips were included in the recipient's taxable income. Much may have depended on the level of tipping obtained by the plaintiff and of the amounts received from this source whether he applied to become a supervisor. The hours which the plaintiff wished to work would also be relevant.

410 I am not persuaded that the plaintiff would have sought the position of a supervisor. He may have. He had not made an application as at November 2003 but I do not regard that as important because by that stage he had only been a cocktail server since October 2000. The matter has to be assessed objectively. While the financial incentive to seek a position as a supervisor would appear to have been strong it is difficult to draw a positive conclusion on this point in the absence of evidence as to the amounts received by way of tips and their taxation treatment. The plaintiff had been with Star City for four years. There was no evidence suggesting that he was not going to stay there. According to the elder brother (T 25) the plaintiff enjoyed his job at Star City serving drinks and was happy to work there.

411 As to calculating the plaintiff’s loss of earning capacity for the future I think that the base figure which should be used is a loss of $660 nett per week. He was born in 1970 and I would assess his future loss of earning capacity as extending over 27 years, that is from age 38 to age 65.

412 That includes the sum of $600-nett per week earlier mentioned earlier and $60 per week nett for tips. I have taken a figure of about $100 per week for tips, and reduced it to $60-nett per week to. allow for it being included in the plaintiff’s taxable income. It may be that the figures I have selected are on the low side but I do not think that that evidence safely permits me to select higher figures.

413 I propose to adjust the figures to correspond with the financial years. The following should be allowed in respect of past loss of earning capacity:

a) 15.11.03 to 30 June 2004 32 weeks (less the first five days) at $470 nett per week
$ 15 040

b) 1.7.04 to 30.6.05 52 weeks at $500 nett per week
$ 26 000

c) 1.7.05 to 30.6.06 52 weeks at $510 nett per week
$ 26 520

d) 1.7.06 to 23.11.06 21 weeks at $540 nett per week
$ 11 340

e) 24.11.06 to 30.06.07 31 weeks at $570 nett per week
$ 17 670

f) 1.7.07 to 28.11.08 74 weeks at $600 nett per week
$ 44 400

g) One bonus payment
$250

Total

$ 141 220

414 As to future loss of earning capacity I propose to use a figure of $660 nett per week and a period of 27 years. This produces a figure of $516, 780 using the 5% multiplier tables ($660 x 783). I deduct 15% for the vicissitudes of life resulting in a figure of $439, 263. I have adopted the conventional figure of 15% because that is the appropriate figure in this case. Inter alia, the plaintiff was employed in a casino and was not a salaried employee. His very good customer service and his good ability to work unsupervised would tend towards his being kept on in tough financial times. He was unlikely to leave Star City as he was happy there.

415 I have not allowed anything for future bonuses as their payment is problematical and depends on a number of factors including meeting customer service requirements targets for the workforce as a whole and probably the financial well being of the business of the employer. There was very little evidence about the payment of bonuses. They do not appear to be substantial sums.

Non Economic Loss

416 Both parties accepted that if the plaintiff is to receive damages the maximum amount of $381, 000 that can be awarded under s. 134 of the Motor Accidents Compensation Act (1999) (NSW) should be awarded for non- economic loss.

Domestic Assistance and Past Gratuitous Care

417 From 15 November 2003 to 25 July 2004 the plaintiff’s elder brother attended daily at Liverpool Hospital for 2 hours per day and assisted with the plaintiff’s care. He was shown what to do by the nurses. His mother attended every 2nd day and also assisted. This involved a long train journey each day.

418 Since 27 July 2004 the plaintiff’s elder brother has attended daily on the plaintiff at the Canterbury District Nursing Home (and also Canterbury District Hospital) for 2 hours per day and assisted with the plaintiff’s care. Initially he travelled there by train, the journey taking about 1 and a half hours. He bought a car for about $500- and drove from Bourke Street, Surry Hills. His mother went with him every second day. She took the plaintiff’s dirty clothes back home and washed them. She also talked to him. With the limitations on staffing at the nursing home, the care of the elder brother and the mother was valuable, and probably essential.

419 The plaintiff claimed re-imbursement for 1 hour of time spent driving by his brother from Surry Hills to Canterbury and return. Those journeys each day across a large part of Sydney would have taken more than 1 hour. A claim of travel time of 1 hour per day 7 days per week for the period of 26 July 2004 to 28 November 2008, that is 226 weeks is reasonable.

420 There was also a claim for the time spent at the Nursing Home by the plaintiff’s elder brother providing gratuitous attendant care of 2 hours per day.

421 In both cases the rate sought was $21.50 per hour. The amount awarded is determined by the market value of the services rendered. There is no direct evidence of such market value.

422 It seems that the elder brother washed the plaintiff’s face, cleaned his mouth, talked to him, massaged him if he felt sore and helped to change his nappy sometimes and clean him. The elder brother talked to the plaintiff and generally assisted him. These are services rendered at Liverpool Hospital and, it seems at the Nursing Home (T 32). At the Nursing Home the plaintiff’s mother gave the plaintiff a drink (by placing sponges on a stick in his mouth and removing them), talked to him, collected his dirty clothes, took them home, cleaned and washed them.

423 There was a claim of travel time of 1 hour for the mother every second day and 2 hours tor care every second day both at the rate of $21.50 per hour. Apart from the time spent at the Nursing Home the mother would obviously take time to soak the plaintiff's clothes, clean and wash them. Cleaning and washing the clothes of a person being nursed in a nappy is time consuming and unpleasant.

424 The question arises as to the hourly rate which should be allowed. According to Premier Care's letter of 28 April 2008 the hourly rate for an attendant carer to assist with the plaintiff’s needs during the day, Monday to Friday is $36.20, on Saturday $44.75 and on Sunday $46.

425 I think that the value of the travel time and the attendant care should be assessed at a rounded figure of $21 per hour seven days per week. I have assumed that the care by the elder brother and mother (including the travel time) have continued during the period judgment has been reserved. If this is not accepted the matter will have to be proved, otherwise the claim will be disallowed. Subject to the matter last mentioned I propose to allow the following:

(a) travel time of plaintiff’s elder brother between Surry Hills and Canterbury, 1 hour per day at $21.00 per hour 7 days per week$147 p.w. for 226 weeks.
=$33, 222

(b) time spent by plaintiff’s elder brother providing gratuitous attendants services- 2 hours per day at $21 per hour 7 days per week-$294 per week for 226 weeks.
=$66, 444

(c) travel time of plaintiff’s mother between Surry Hills and Canterbury- 1 hour every second day at $21 per hour at $74 per week for 226 weeks.
=$16, 724

(d) time spent by plaintiff’s mother providing gratuitous attendant services- 2 hours every second day at $21 per hour at $148 per week, for 226 weeks.
=$33, 448

Total=$151, 497.49

Loss of Superannuation Benefits

426 The total impairment of the plaintiff’s earning capacity has led to the past and future loss by him of superannuation benefits.

427 Under the Superannuation Guarantee (Administration) Act (1992) (Cth) Star City was bound to make contributions to the superannuation of the plaintiff.

428 The plaintiff while acknowledging the importance of the Commonwealth legislation used a method of calculating those losses that is widely used in Common Law matters, by the Court, the legal profession, insurers and plaintiff’s (by their legal advisors), that is 11 % on the nett earnings. This has been found to be approximately equal to the statutory formula of 9 % of an employee's notional earnings base. The adoption of the method mentioned avoids lengthy argument and the necessity for separate detailed calculations and thus expense. No objection was taken to this course.

429 I have earlier assessed the plaintiff's past loss of earning capacity on the basis of net weekly earnings at $141, 220. 11% of this sum is $15, 344. That is the amount I have allowed for past loss of superannuation benefits. I have earlier assessed the plaintiff’s future loss of earning capacity at $516, 780. 11% of this sum is $56, 845. From this sum I deduct 15% to allow for the vicissitudes of life. This results in a figure of $48, 319.00. That is the amount I allow for future loss of superannuation benefits.

Future Nursinq Care and Canterbury District Nursinq Home Fees

430 I have rejected the proposal that Mr Tran should be accommodated in a purpose built home. I have found that additional nursing care should be provided for him in a Nursing Home from 6am to 10pm seven days per week. I have accepted the evidence of Ms Mukundwi, that this care be provided by an Assistant in Nursing, or as described in the letter of 28 April 2008 of Premier Care Pty Ltd attendant care to supplement the plaintiff’s care as a resident of the Canterbury Nursing Home. Two carers are required to cover the waking hours of Mr Tran. The letter notes that all equipment/aids will need to be made available including protective clothing to enable staff to attend to the patient's care needs.

431 Ms Prue Sandford, an experienced occupational therapist undertook a detailed review of the costs of caring for the plaintiff. She proceeded on the basis that he would live until he attained the age of 85.4 years. I have found that Mr Tran has a life expectancy of 10 years from the date of this judgment. Ms Sandford's report bears date 13 June 2006 and her assessment dates are stated to be 20/2/06 and 10/4/06. I have preferred to take the current figures of Premier Care Pty Ltd.

432 Based on the Canterbury District Nursing Home Fees of $784.77 per week, the plaintiff’s life expectancy of 10 years and the cost of additional assistant in nursing care for 16 hours per day at Premier Carer rates, I would allow, using the 5 per cent tables (412.9), $2, 182, 279. For this calculation I have relied on the figures provided by the plaintiff’s legal representatives.

Transport

433 I do not propose to allow any sum for the purchase of a vehicle or for taking the plaintiff on outings because the plaintiff is not aware of his surroundings or of his condition other than probably realising in a general way that he is in a nursing home /hospital receiving nursing care. a was of the view that taking the plaintiff on outings was medically contra-indicated as the plaintiff had aspiration difficulties and was at risk of catching pneumonia.

Agreed Past Out of Pocket Expenses and Commonwealth Payback

434 Out of pocket expenses were agreed at $66, 699.98 and the Commonwealth payback for expenses at $200, 072.61. Under this heading I allow $266, 772.

Future Treatment

435 In his report of 13 November 2006 Dr Spira wrote the plaintiff will require courses of antibiotic therapy to deal with respiratory, cutaneous or urinary tract infections and that he will need regular visits from his general practitioner. He also thought that the plaintiff would require further admissions to Canterbury Hospital for intravenous antibiotic therapy. Dr Spira noted in his oral evidence that the plaintiff was on anti-convulsant medication and should be maintained on that medication.

436 Dr Waran in his letter of 24 August 2007 wrote that the plaintiff has been his patient since July 2006. He has listed the plaintiff’s medications as at August 2007 and that the plaintiff is on continuous parenteral feed with Jevity. Dr Waran has also written that he does not foresee major changes in the plaintiff’s medications in the foreseeable future. Dr Waran thought that assessment by a dietician to better manage the plaintiff’s chronic constipation would be helpful. There are letters from the Pharmacy Guild dated 21 and 28 August 2007 as to the likely cost of various items.

437 As the plaintiff’s submissions point out no information has been provided as to the frequency and quantity of the administration of the medications prescribed.

438 From the limited source material available the plaintiff’s counsel, have constructed likely usage and likely cost and arrived at a total weekly cost of pharmaceutical items of $42.70 per week. The accounts of the Canterbury District Nursing Home (Ex R) show pharmacy costs of the plaintiff for November 2007 as $55.25 and for December 2007 as $39.50.

439 While the plaintiff’s schedule of Treatment Expenses as at 11/4/08 contains some details of the treatment received and some indications of costs it is not of great assistance in trying to calculate the cost of future treatment.

440 The defendant's assessments of the future costs of medications (including pharmacy items) of $20 per week may be on the low side but the evidence is scanty. The defendant's suggestions ranged from $4630 to $8258.

441 While I appreciated the efforts of junior counsel for the plaintiff in constructing an assessment of pharmacy expenses the court does need Dr Waran or some other qualified person to work out the average weekly usage of pharmacy items and medications of the plaintiff for the future assuming he remains at the Nursing Home. Once that is known the cost can probably be calculated.

442 If the pharmacy supplying the items has a ledger card of the plaintiff’s pharmacy expenses over the last 12 to 18 months that may provide corroborative evidence of the anticipated future pharmacy expenses of the plaintiff. The Nursing Home also may have a record of the amounts spent on pharmacy items for the plaintiff over the last 12 to 18 months. Considerable effort was devoted to obtaining the requisite information but that provided fell short of what is required. I am prepared to permit both parties to re-open on this issue. On the limited materials presently available I cannot make a sensible assessment.

443 As for GP visits/investigations the defendant suggested a figure of $32.40 p.w and submitted an assessment $7,500 to $13, 378, the earlier figure applying approximately to a life expectancy of 5 years d the lat figure to a life expectancy of approximately 10 years.

444 In attachment 1 to Dr Buckley's report of 13 March 2008 he makes the following assessment of costs for a consultation by a General Practitioner at a place other than his or her consulting rooms -

445 There is an apparent gap between the rate of $32.40 per week propounded by the defendant and the figures mentioned by Dr Buckley. Dr Buckley was envisaging a visit to a private home and about 12 visits per year. If Dr Waran see several patients at the Nursing Home on his visits that may affect the fee charged. Allowance has to be made for Dr Waran being called in specially to deal with a particular problem affecting the plaintiff either at the Nursing Home or at Canterbury Hospital. The evidence as to the costs of a medical general practitioner is not relevantly comprehensive and the evidence as to this needs to be supplemented or the amount agreed based on a life expectancy of 10 years.

446 The defendant submitted an assessment of $20,000 to $30,000 for public hospital admissions. Dr Spira thought that there would probably be a number of these over the years. He envisaged the plaintiff being transferred to Canterbury Hospital.

447 Dr Buckley in his attachment 4 of 1 February 2007 has written:

448 Counsel for the plaintiff submitted that although the plaintiff has not experienced a severe infection or other health emergency in the last year or so the plaintiff is at risk of contracting infections and/or suffering a health emergency on a reasonably regular basis. While to date treatment had been obtained through Canterbury Public Hospital it was submitted that the plaintiff should be entitled to treatment in such cases in a Private Hospital with at least one such attendance being allowed each year.

449 The plaintiff relied on the costs set out in Dr Buckley's attachment of 1 February 2007, namely, cost of accommodation, pathology and radiology of $11, 743.

450 The plaintiff converted this to a weekly cost over 1 year of $225.83 per week for about 43 years ($225.83 and $938.83) and claimed $212, 013 for this item.

451 Dr Tam pointed to admissions to Canterbury Hospital for 9-10 days in November 2004, 4-5 days in June 2006 and 6-7 days in August 2006, it does not seem that there has been an admission since 9 August 2006. With the increased assistance from the additional carers I anticipate that there may be less need for his admission to hospital but his parlous condition and the attendant risks to his health point to some hospital admissions especially for intravenous therapy or treatment for stomach distension. The duration of any admission is uncertain. The plaintiff when transferred is likely to need prompt attention and bed availability will be a consideration. I have assumed that if the plaintiff is admitted to a public hospital in the future it will be as a private patient. Although it is appreciated that the plaintiff may be transferred to another nursing home, Canterbury Hospital is within a short distance of Canterbury District Nursing Home.

452 With the present well publicised difficulties in the bed availability in public hospitals provision should be made on the basis of the admission of the plaintiff to a private hospital for a period of 10 days annually with bed costs of $790 per day and pathology of $443 and radiology of $240. That would total ($7900, $443 and $240) $8583. The weekly cost over 1 year would be about $165 per week. I would allow this for 10 years. That amounts to $68, 145 ($165 x 413) using the 5% tables.

Miscellaneous

453 There are a number of items where provision for costs has been claimed on the basis that the plaintiff was accommodated in a purpose built house. These include podiatrist visits and hair care. I do not know is these are covered by the Nursing Home. If not, then an allowance should be made for the cost of these services in a nursing home provided every 2 months. These will need to be checked with the Nursing Home and costed. There may be other items, the costs of which it does not meet but which are reasonable.

454 I expect that the additional attendant carers/assistants in nursing will have to be provided with items of protective clothing, for example, gloves and some water proof items when assisting to bathe and shower the plaintiff. There may be other steps, such as the use of sterilizing fluid.

455 The matters of protective clothing and the provision of equipment/aids were mentioned in the letter of 28 April 2008 from Premier Care (Ex 29). These matters will need to be identified and costed.

456 It is necessary that a special chair/wheelchair be provided for the plaintiff so that he does not have to spend all day in bed and he can be heeled into the courtyard and grounds of the nursing home.

457 Such a special chair (sometimes called a pressure care recliner) in 2006 is stated to cost $2540- and to require replacement after 10 years. The cost will need to be updated. The chair will need to be kept in repair and maintained. I would allow $4 per week for 10 years for such repairs and maintenance. Using the 5 per cent tables that results in $1652.

Summary

458 There should be a verdict for the plaintiff on the issue of negligence but the plaintiff was guilty of contributory negligence. I would apportion liability as to 60 per cent to the plaintiff and 40 per cent to the defendant.

459 I calculate the damages. as follows:

Non economic loss: $381,000.00

Agreed out of pocket expenses including
Commonwealth payback: $266,772.00

Loss of earning capacity
Past:
Future: $141,220
$439, 263

$580, 483.00

Interest on amounts awarded for past loss of earning capacity:
(to be calculated) $

Loss of Superannuation Benefits:
Past loss:
Future loss: $15, 344
$56, 845

$72, 189.00

Future Nursing Care and Canterbury District
Nursing Home Fees: $2,182,279

Past Gratuitous Care: $151, 497

Future Medical Expenses for Doctors
(Subject to further evidence):

Hospital Cost for future hospitalisation $68,145

Future Physiotherapy costs:
(Subject to further evidence) $

Miscellaneous:
(Subject to further evidence) $

Management and Trustee Fees:
(to be calculated) $

460 A suitable date to deal with the matters on which further evidence may be called should be set. I have taken the unusual course of allowing further evidence on a limited number of damages issues. While I have considered the submissions of counsel for the plaintiff and counsel for the defendant I have made assessments. There were many disputed facts and the parties could not be expected to know what evidence would be accepted and what views I would form. The matter was one of some complexity. I have endeavoured to indicate my views on the questions of principle. I have used the date of 28 November 2008 in working out various figures. That may need to be adjusted. If so, that may result in some small variations to the figures if the parties prefer another date. Thereafter, the figures will need to be finalised and questions of interest and costs determined. My calculations should be checked for arithmetical errors.

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Citations

Tu Tran v Dos Santos [2008] NSWSC 1216

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

2

FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413

Nominal Defendant v Rowland-Smith [2003] NSWCA 65

Non economic loss:	$381,000.00
Agreed out of pocket expenses including Commonwealth payback:	$266,772.00
Loss of earning capacity Past: Future:	$141,220 $439, 263
$580, 483.00
Interest on amounts awarded for past loss of earning capacity: (to be calculated)	$
Loss of Superannuation Benefits: Past loss: Future loss:	$15, 344 $56, 845
$72, 189.00
Future Nursing Care and Canterbury District Nursing Home Fees:	$2,182,279
Past Gratuitous Care:	$151, 497
Future Medical Expenses for Doctors (Subject to further evidence):
Hospital Cost for future hospitalisation	$68,145
Future Physiotherapy costs: (Subject to further evidence)	$
Miscellaneous: (Subject to further evidence)	$
Management and Trustee Fees: (to be calculated)	$

CITATION:	Tu Tran v Dos Santos [2008] NSWSC 1216
HEARING DATE(S):	14-18, 21-24, 28-30 April,1-2 May 2008
JUDGMENT DATE :	20 November 2008
JUDGMENT OF:	Smart AJ at 1
DECISION:	Defendant held negligent. Plaintiff held contributorily negligent. Stood over for further evidence on limited damages aspects.
CATCHWORDS:	Motor vehicle accident - plaintiff very severely brain damaged - isues of negligence and contributory negligence - application of agony of moment/emergency principles to both parties - Assessment of Damages in view of plaintiff's condition - non provision of purpose built house - plaintiff unaware of his surroundings or his condition - rehabilitation improbable - limited physiotherapy - future medical care and treatment - limited life expectancy
LEGISLATION CITED:	Motor Accidents Compensation Act (1999) (NSW) Superannuation Guarantee (Administration) Act (1992) (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Cortis v Baker [1968] SASR 367 Leishman v Thomas; Hobbs (3rd Party) (1957) 75 WN (NSW) 173 Medida Pty Ltd v Tobin (NSWCA, 20 December 1995-BC9501776) Nominal Defendant v Rowland-Smith [2003] NSWCA 65 Norris v Blake (No.2) (1997) 41 NSWLR 49 Shelley v Szelley [1971] SASR 430
PARTIES:	Tu Tran Maria Dos Santos
FILE NUMBER(S):	SC 20210/06
COUNSEL:	H.J. Marshall SC and Mr Taylor (P) R.Stitt QC and H.M. Stitt (D)
SOLICITORS:	Keddies Lawyers (P) Sparke Helmore (D)

a) 15.11.03 to 30 June 2004 32 weeks (less the first five days) at $470 nett per week	$ 15 040
b) 1.7.04 to 30.6.05 52 weeks at $500 nett per week	$ 26 000
c) 1.7.05 to 30.6.06 52 weeks at $510 nett per week	$ 26 520
d) 1.7.06 to 23.11.06 21 weeks at $540 nett per week	$ 11 340
e) 24.11.06 to 30.06.07 31 weeks at $570 nett per week	$ 17 670
f) 1.7.07 to 28.11.08 74 weeks at $600 nett per week	$ 44 400
g) One bonus payment	$250
Total	$ 141 220