Woods v Collins - [2018] SADC 62

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WOODS v COLLINS
[2018] SADC 62
Judgment of Her Honour Judge Tracey
19 June 2018
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES
Plaintiff injured in motor vehicle collision in January 2012 on dirt track in New South Wales. Vehicles coming to a bend on the track. Plaintiff unable to apply brakes and defendant stopped his vehicle. Whether defendant stopped in the path of the plaintiff. Whether his negligence was a necessary condition of the occurrence of the plaintiff's harm and it is appropriate for the scope of the defendant's negligence to extend to the harm.
Held: The defendant was negligent in not driving defensively. Liability assessed 30/70 in the defendant's favour. No entitlement to damages for non-economic or economic loss. Damages awarded for attendant care services and past and future treatment. Parties to be heard on interest and costs.
Motor Accidents Compensation Act 1999 (NSW) s 126, 130, 131, 137, 141B; Civil Liability Act 2002 (NSW) s 5D, 5R, referred to.
Nominal Defendant v Bacon [2014] NSWCA 275; Kenny v Ritter [2009] SASC 139; Stoekel v Harpas (1971) SASR 172; Graham v Baker (1961) 106 CLR 340; SampCo Pty Ltd v Wurth [2015] NSWCA 117; Geaghan v D'Aubert [2002] NSWCA 260; Griffiths v Kerkemeyer (1977) 139 CLR 161, considered.

WOODS v COLLINS
[2018] SADC 62
Background

The plaintiff, Heather Woods, was injured in a motor vehicle collision on 4 January 2012 and brings these proceedings against the defendant Shane Collins, claiming damages for negligence in respect of injuries she sustained in that collision. The proceedings are governed by the Motor Accidents Compensation Act 1999 (NSW) (the Act) and the Civil Liability Act 2002 (NSW) (the CL Act).
The plaintiff was driving a Mitsubishi Triton four wheel drive vehicle uphill on the Major Clews Trail, a dirt track in the Kosciusko region of New South Wales (the track). Her husband, Martin Woods (Mr Woods) was a passenger in her vehicle. The defendant was driving his Toyota Hilux vehicle down the track. Both vehicles came to a bend and on seeing the plaintiff’s vehicle, the defendant stopped. While the plaintiff caught sight of the defendant’s vehicle, she was unable to stop and she alleges the front centre of her vehicle came into collision with the front left of the defendant’s vehicle. The plaintiff asserts that the defendant stopped his vehicle to her left, that is, on the wrong side of the track and in her path.
Pursuant to s 5D(1) of the CL Act, a determination that negligence caused harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
The plaintiff alleges that the defendant’s acts or omissions in driving into the path of her vehicle and stopping there were necessary conditions of the occurrence of her injuries, whereas the defendant says that the plaintiff’s failure to stop was the cause of the collision.
In particular, the plaintiff alleges that the collision was caused by the negligence of the defendant in that he:
1. failed to keep any or an adequate look out;
2. travelled at a speed which was excessive in the circumstances;
3.failed to slow, swerve or otherwise direct control or manoeuvre his motor vehicle at such time and in such manner as to avoid colliding with the plaintiff;
4.failed to keep his motor vehicle as near as reasonably practicable to the left-hand side of the roadway;
5.drove his motor vehicle across the path of the plaintiff’s direction of travel at such time and in such manner as it was unsafe so to do;
6.drove his motor vehicle without due care or reasonable consideration for other road users.
The plaintiff’s injuries
As a result of the collision the plaintiff, who was then aged 61 years, alleged she suffered:
·A broad based posterior disc bulge at the join between L4/L5 vertebrae with flattening of the left central and left anterior margins of the theca and with the bulge contacting the L5 nerve root;
·A large prolapse of the L5/S1 disc to the left and into the L5/S1 foramen which is compressing the L5 nerve root with the foramen and the S1 nerve root in the posterior-lateral spinal canal;
·Residual left S1 radiculopathy.
While the defendant accepted that the plaintiff suffered injuries in the collision, he said that she has made a good recovery from those injuries such that she was able to return to full-time work and does not require any assistance with activities of daily living.
The medical evidence
Neurosurgeons Mr Paul Carney and Mr Eric Eriksen examined the plaintiff.
Mr Carney, who conducted his examinations on behalf of the plaintiff’s solicitors, prepared reports dated 17 July 2013 and 19 October 2016. Mr Eriksen was retained by the solicitors for the defendant and prepared reports dated 28 July 2014 and 24 January 2017.
The reports of both doctors were tendered without the need for them to give evidence. Both practitioners assessed the plaintiff’s permanent impairment at 5 percent by reference to the relevant permanent impairment guidelines.
The witnesses
The plaintiff’s evidence as to liability
The plaintiff gave evidence that she had considerable experience in driving a four wheel drive vehicle.[1]
[1] Transcript 27.12.
She described the track as narrow and mostly a single lane.
Her vehicle was in low range and in second gear, that is, powerful but slow, and all wheels were engaged. As she drove up the track it turned to the right quite significantly, where the track became wider. She said she saw a bit of colour on her right coming through the trees. She could not see what type of vehicle it was. She put her foot on the brake but it slipped off and went down to the floor underneath the pedals. Her vehicle was manual and her foot did not hit any other pedal as it slipped. She described her foot as being ‘trapped’ underneath the pedals.[2]
[2] Transcript 33.36.
The plaintiff said she had not achieved any effective braking at all. She was not travelling fast as the vehicle was in low range, but it was very powerful. She estimated her speed to have been about 25 or 30 kilometres per hour. When her foot slipped and got trapped, she glanced down for a moment. She said she was trying to lift her foot straight up but could not get it free until the moment the collision between the two vehicles occurred.
There was, she said, just that fraction of a second when she looked down and in that time the defendant’s vehicle had moved across and stopped on the other side of the track.[3]
[3] Transcript 34.18.
She described the defendant’s vehicle stopping on her left-hand side on the apex of the corner, facing downhill towards her vehicle. She said:[4]
The defendant’s vehicle was pretty much straight ahead at that point but on the side, the whole side of their car was straight ahead with us coming up.
[4] Transcript 35.10.
She said it was difficult to go to the left of the stationary car, because there were trees along that area.[5]
[5] Transcript 36.13.
While she was trying to get her foot out and put it on the brake pedal, her vehicle continued to drive forwards. She estimated she had been about six metres away from the defendant’s vehicle when she first saw it. She said that, in retrospect, had she put her foot on the clutch, because of the steepness, her vehicle would not have continued to drive forwards. The plaintiff said the front middle of her vehicle impacted with the front left of the defendant’s vehicle.[6]
[6] Transcript 38.15.
When she and her husband revisited the scene in 2016, the track where the collision occurred measured 7.5 metres wide, that is, wide enough for two vehicles to pass. Had the defendant’s vehicle been to her right, she thought there would have been enough room for her to get past and the collision could have been avoided.[7]
[7] Transcript 37.20.
Photographs she and her husband took of the scene at their subsequent visit showed some washaway on the track at the edge closest to an embankment on the ‘inside curve’.[8] The plaintiff said she had no memory of there being any washaway area on the track in 2012.[9]
[8] From the photographs, it is difficult to see the way in which the track falls away on the outside curve. Unfortunately, no formal or agreed measurements of the track were undertaken by the parties, nor was there any expert opinion to assist in regard to the relevant road conditions or what, if anything, could be ascertained from the damage each vehicle sustained as to their respective positions on the track.
[9] Transcript 40.37.
On a photograph of the bend where the collision was said to have occurred, the plaintiff marked the front and rear of the defendant’s vehicle at the position it was in immediately before the collision.[10]
[10] Exhibit P7.
The plaintiff gave evidence regarding a drawing she had prepared within a week or two after the collision to demonstrate the accident scene.[11] While it was not to scale, the plaintiff said the drawing showed an accurate depiction of the relative positions of the two vehicles at the time of collision.[12]
[11] Tender Book Exhibit P2, page 138.
[12] The drawing depicts the defendant’s vehicle to the right of the track with the plaintiff’s vehicle travelling up the centre of the track, with the notation: ‘[the defendant] pulled to the right of the track and stopped. [Plaintiff] unable to stop to avoid collision to the vehicle of their left’.
In February 2012, the plaintiff provided her insurer with copies of photographs taken of the damaged vehicles and indicated the point of impact on the front left corner of the defendant’s vehicle. On an accident notification form lodged with the NSW Motor Accidents Authority, the plaintiff had drawn a diagram of the collision via a computer generated program. She said the program did not allow her to show the impact correctly. She had similar difficulty with respect to a document completed in relation to her personal injury claim.[13]
[13] Transcript 48.25.
In cross-examination, the plaintiff described the track as fairly narrow, with one set of tyre tracks down the middle of the road in many places. She agreed that she was generally driving in the middle of the road along the tracks and said that four wheel drive protocol is that the vehicle travelling uphill does not give way to the other one ‘so much’.
The plaintiff said she had no recollection of there being a deep rut or gutter running alongside the embankment as shown in photograph 18.[14] There was only a gentle drop-off on the outer curve of the track.[15]
[14] Transcript 78.26.
[15] Transcript 79.10.
Looking at Exhibit P7, the plaintiff denied that the defendant’s vehicle was not where she had marked or that his vehicle was close to the embankment. She denied the defendant’s vehicle was approximately 200 millimetres out from a gutter or rut that was approximately one metre away from the embankment. She denied that as a result of the collision the defendant’s vehicle moved to the left, that is, towards the centre of the road.[16]
[16] Transcript 80.13.
The plaintiff indicated that the impact on the defendant’s vehicle was to the front left of the defendant’s vehicle (Exhibit D9). She denied that the impact occurred to the left bumper overrider on the defendant’s bull bar.[17] The plaintiff marked the impact on her vehicle (Exhibit D10).
[17] Transcript 82.3.
The plaintiff agreed that had she put her foot on the clutch, her vehicle would have stopped because of the incline, but denied that her foot was on the accelerator the whole time leading up to the point of impact.[18] She also agreed that when she took her foot off the accelerator, when she was in low range in second gear, her vehicle would slow down very quickly and more quickly because she was travelling on an incline.[19] She said her vehicle was certainly going slowly, but was moving very powerfully.[20] This was, she said not because she had her foot on the accelerator. Had her foot been on the accelerator, she would not have been slowing down.[21] She said she had a strong memory of being in the vehicle trying to get her foot out from under the brake with the car going forward.
[18] Transcript 84.22.
[19] Transcript 88.13.
[20] Transcript 88.23.
[21] Transcript 88.26.
The plaintiff accepted that given the narrowness of the track in parts, it was important to be able to stop, and agreed that in general, there was room for two cars to pass each other slowly and with care. In parts along the track, that would not be possible and one party would have to reverse.
With regard to the markings she made on Exhibit P7, the plaintiff agreed it was possible that in the positions as represented, she could have manoeuvred her vehicle to the right, that is, behind the defendant’s vehicle.[22]
[22] Transcript 93.1.
The plaintiff disagreed that a more accurate representation of the point of impact on the track was as she had depicted in the computer generated drawings.[23]
[23] Transcript 96.18.
The plaintiff’s evidence as to her damages
The plaintiff qualified as a registered nurse in 1976 and worked initially for the South Australian Health Commission, which became known as SA Health, until her retirement in 2015. She had worked in a number of different fields of nursing over the years, but predominantly in community health. She had never had any back problems before the collision. At the time of the collision, her work involved a good deal of sitting at her desk. Within a few days, she went to a chiropractor who she had consulted in the past, and eventually was recommended to consult her GP. Her symptoms continued to get worse and the pain became more and more unbearable. Her doctor prescribed pain relief.[24] It got to the point where she was virtually bedridden and she relied on her husband to provide her with whatever care she needed. Her sleep was disturbed by the pain. She was only getting out of bed to go to the toilet or wash. She needed assistance with showering and help with dressing. In about April 2012, she was not able to walk very far and was unable to get outside into her large garden or walk on the beach. She had difficulties with stairs. She said that walking on sand still hurts.[25] She had been prescribed heavy duty pain relief until the end of the year and it was not until December or January 2013 that she started to wean herself off phentanyl patches.[26]
[24] Transcript 53.24.
[25] Transcript 55.20.
[26] Transcript 55.28.
The plaintiff said that she had been really keen to get back to work as she was part of a management team and the organisation was going through some changes. She felt she needed to be there and was trying everything she could to do so. She returned to work on light duties around 22 May 2012, building up to more hours over time. She was cleared to work full-time again in January 2014.[27] Changes in her duties meant that she spent more time at the computer and was required to drive for lengthy periods. The pain she experienced made her a bit slower in her work.[28]
[27] Transcript 58.34.
[28] Transcript 61.8.
She continued to work full-time with SA Health until the end of 2015, when she retired. The plaintiff said she retired for a number of reasons.[29] She experienced continual discomfort working full-time. She said she knew that she could have dropped back to part-time work, but if she did, she would not be able to cope financially because they still had to meet mortgage payments. Her financial adviser suggested that she retire so that she could access her full superannuation and pay off the mortgages. She also wanted to do some travelling in Australia and that would be possible if she had longer periods off from work.
[29] Transcript 67.25–68.8.
Although she retired from SA Health in 2015, she had already arranged short-term casual work with a company called Apotex. She had been hoping that there would be other seasonal work available, allowing her to work for short periods, but when that did not eventuate, she started looking further afield and came across a position as a clinical nurse consultant in Tasmania. She said the work involved sitting at a computer and reading, and that she found that within a fairly short space of time her back was hurting. In that role she worked 38 hours per fortnight, that is, half-time. She also continued work for Apotex, and had plans to continue working on a contractual basis in Tasmania.
While she had returned to walking, it was not to the same intensity as before the collision. She said she consults a chiropractor once every three months, and has found water aerobics very beneficial, usually attending twice per week.[30] The plaintiff said that she has adjusted things that she does in the garden or at home, or gets her husband to do the heavy work. She is sad that she cannot do the ‘normal things’ like picking up her young grandson.[31] Gardening has been a big part of her life for many years and she has difficulties kneeling or standing to prune. Her husband does all of the heavy work and does most of the driving. Day to day housework tasks cause her pain.
[30] Transcript 63.22.
[31] Transcript 64.3.
She said her husband retired five or six years ago.[32] She estimated he would be spending one to two hours per day, doing the things that she had previously done.[33] Assistance from her husband had, she said, allowed her to manage to work full-time after the accident.
[32] Transcript 70.34.
[33] Transcript 71.24.
In cross-examination, the plaintiff said the factors causing her to retire from her position in 2015 were her injuries, and because she felt it was time.[34] She also wished to travel and her husband had retired.[35]
[34] Transcript 100.38.
[35] Transcript 100.22.
The plaintiff described her work for Apotex as casual employment that was not for a specific length of time.[36] She said that perhaps there would have been more work available to her but that it was virtually at the end of the flu vaccine season and she and her husband were wanting to travel.[37]
[36] Transcript 102.38.
[37] Transcript 103.4.
The plaintiff said she was not actively looking for work but just keeping an eye open. She did try and register with nursing agencies and then saw the advertisement for the position in Tasmania. The contract in Tasmania was from February to August 2017. She said she has made it clear all along that she was not planning on being in that job long term. She was coming in on a short-term contract because they were desperate for staff. She said she worked in a specialised field and finding experienced people who can just pick the work up and run with it for a short term is difficult.[38]
[38] Transcript 104.14.
The plaintiff said she had no intention of working full-time or in a permanent position.[39] Rather, she wanted some flexibility to travel and for lifestyle.[40] She thought there were further work opportunities with Apotex, which is work usually undertaken during the flu vaccine season, and potential to go back and forth and finish the contract in Tasmania. There were other opportunities in Hobart which she said she would try and pursue.[41]
[39] Transcript 104.38.
[40] Transcript 105.2.
[41] Transcript 106.24.
As to whether she could work full-time now if she wanted to, the plaintiff said:[42]
As far as work goes I could. I don’t know that my body would let me do that easily, but yeah, I am sure there would be work around for me to do
[42] Transcript 107.3.

She said she does not have a set time for total retirement but hopes to work for a few more years. She said
I suppose I would not see myself working past 70 at this stage, but if am feeling fit and fine at 70, I wouldn’t stop just because of my age.[43]
[43] Transcript 103.7.
She said she would like to do more work than she does but not to work full-time, preferring to work an additional day or two a week, but not every week. She would rather have work in blocks of time with gaps in between.[44]
[44] Transcript 107.36.
The plaintiff did not accept that from 6 October 2013 she only required four hours of assistance from her husband per week.[45] Before the collision, when she was working full-time and her husband was retired, they would share some of the cooking, cleaning, washing, and gardening. The shopping would either be done together or her husband would do it during the day.
[45] Transcript 112.19.
Post collision, she said she had been stuck in bed for maybe four or six weeks.[46] Her condition gradually improved over 18 months. She returned to work in a limited capacity on 22 May 2012. She returned to work three days a week at the end of August 2012. Towards the middle or end of August 2013 she was able to drive to work. By July 2012 she could do some shopping. She could do some general cleaning by the end of 2012 and clean the bathroom. She could not vacuum, sweep, mop, mow the lawn or use an outdoor rake. She agreed she had told Mr Carney that she could do all activities of daily living but was cautious and modified her activities if her back was sore.[47]
[46] Transcript 116.37.
[47] Transcript 123.30.
The plaintiff agreed she travelled to the United States on a prearranged holiday in June 2013 for five or so weeks. She described the trip as difficult because of her injuries. She was unable to undertake very much walking.[48]
[48] Transcript 124.23.
She said that she was attending a chiropractor prior to the collision about four times per year for ‘realignment of the spine’.[49]
[49] Transcript 125.17.
In re-examination, the plaintiff said that aqua-aerobics made a huge difference to her.[50]
[50] Transcript 126.6.
While over the years after the collision she gradually recovered the ability to do many personal and household tasks, she said she has not regained her ability completely. She is reliant on her husband to do some tasks, even if she could possibly do them, in order to avoid pain and discomfort.
Mr Woods’s evidence on liability
Mr Woods recalled his wife was driving at about 10 or 15 kilometres per hour at the time of the collision.[51] He saw the defendant’s vehicle ahead at the bend. It was going very slowly or almost stopped.[52] As they got closer, the defendant’s vehicle came around the curve and there was a fair amount of the side of the vehicle exposed. The plaintiff was driving straight ahead and he expected her to stop but the vehicle kept going. He could see that there was a collision imminent and called her name. He put his hand out to brace himself. He said the defendant’s vehicle had come around the bend and seemed to have taken a wide path. He thought the defendant’s vehicle was probably just a little bit over the middle of their side of the track, making it impossible for his wife to pass.[53]
[51] Transcript 153.5
[52] Transcript 153.23.
[53] Transcript 155.15.
Mr Woods recalled the track was in quite a reasonable state and less washed out than what was shown in the 2016 photographs.[54] He marked on Exhibit P5 the position of the defendant’s vehicle at the time of the collision.
[54] Transcript 156.26.
He said that in a low gear a vehicle has momentum to drive forward slowly for a period of time. It will continue to go on unless it is braked.[55] He had no concern about the particular position on the track where his wife was driving.[56] She was on the left of the track as she came into the turn and approached the point of collision. He did not see any movement of the defendant’s vehicle on impact. From his perspective, in the moments before the impact, there was no possibility of his wife avoiding the vehicle in her path unless she braked.[57]
[55] Transcript 160.21.
[56] Transcript 160.38.
[57] Transcript 162.10.
The front left of the defendant’s vehicle was damaged, while their vehicle was caved in at the front middle.[58] The vehicles did not collide head on.
[58] Transcript 163.17.
Looking at photograph A of Exhibit P5, Mr Woods said the defendant’s vehicle was hit where there are white scratch marks on the bumper bar below the bull bar on the left front side. He said that his wife’s vehicle may have brushed the bumper overrider on the defendant’s vehicle, but it certainly did not impact at that point.[59]
[59] Transcript 164.19.
In cross-examination, Mr Woods said that where the collision occurred was certainly wide enough for two cars to pass easily if they both kept in their positions to the left.
He had no memory of a rut or a gutter next to the embankment and his overall assessment of the road was that it was in a reasonable condition at that corner.[60] Mr Woods did not recollect debris on the left-hand side of the track, making part of the track unusable or difficult to drive on, or that there were parts of the road on either side that could not be used.[61]
[60] Transcript 177.17.
[61] Transcript 178.24.
Mr Woods said the defendant’s vehicle was not out from the rut or gutter on the embankment side by around half a metre. He denied that the defendant’s vehicle moved towards the centre of the track.[62]
[62] Transcript 179.12.
Mr Woods marked on Exhibit D15 where he said the defendant’s vehicle came into collision with his wife’s vehicle and denied that the point of impact was at the defendant’s bumper overrider.
Mr Woods’s evidence as to damages
Mr Woods said he was aged 71 and before his retirement had worked as a high school teacher.
For about four weeks after the collision, his wife was in considerable pain and discomfort and spent much of the time in bed, requiring him to take on the responsibility for all household tasks. He thought it might have been four or five weeks of intensive work and then, when his wife was trying hard to get herself back to normal, she began to move around and do a few jobs. He said he still had ‘considerable involvement’ but it eased off a little bit.[63] He said his wife really tried to push herself to do things and was very keen and anxious to get back to work as it was a very important time at her work.
[63] Transcript 167.22.
Mr Woods said that from 22 May 2012 to the end of 2013, he continued to assist his wife both in the home and to go to work. He made breakfast and usually her lunch. When she returned home, he made sure that there was a meal for her. He said work made her very tired, apart from the discomfort and the pain. In the first few weeks he did all the driving.[64] In the first instance he did most of the shopping and all the washing. For several months his wife was unable to go to the beach from their house in Goolwa, which could only be accessed through sand dunes.[65] In the first instance he did all the washing.
[64] Transcript 169.8.
[65] Transcript 169.18.
Mr Woods had prepared schedules showing the support he had provided. This was, he said, his best estimate of the additional work he had to spend doing things for his wife in connection with her injuries.[66]
[66] Transcript 170.19.
Mr Woods said he continued to do most of the cooking and his wife still struggles with mopping and vacuuming. He does more of the gardening and looking after the dog. He does all the heavy work in the garden. He goes shopping with his wife and usually carries the bags.[67]
[67] Transcript 172.12.
Mr Woods was asked whether the support he provided to his wife that enabled her to work was above or below or at six hours per week. Mr Woods said:[68]
I couldn’t really give you an answer off the top of my head, I’d really have to sit down and think about it. I mean I could say half to one hour a day I would probably be doing extra things.
[68] Transcript 173.33.
He said that his wife had used the brush cutter and chainsaw in the garden but now he attends to all the heavier work. He described his wife as a very avid gardener, with a qualification in horticulture.[69]
[69] Transcript 174.21.
In cross-examination, Mr Woods said that prior to the collision he had always taken a significant role in the kitchen as he enjoyed cooking, but always shared it with his wife. He now helped with all household tasks. Before the collision, he had retired from teaching but was working in the local community centre in a part-time capacity for two to three days per week, six or seven hours per day. He adjusted his attendance to assist looking after his wife after the collision. He finished work of all types in 2013.[70]
[70] Transcript 185.8.
Mr Woods estimated that care of their two dogs took him approximately 30 minutes.[71]
[71] Transcript 187.14.
John Pennant
Mr Pennant is the owner of businesses which carry out vehicle repairs and conduct assessments for roadworthiness testing in Victoria.
In April 2012 he was asked to inspect the defendant’s vehicle on behalf of a new purchaser of the vehicle.[72] According to records that Mr Pennant had accessed, in December 2009, that is, before the vehicle was purchased by the defendant, the vehicle had sustained heavy structural damage and was described as a ‘repairable write-off’.[73] When the vehicle was brought to him to inspect, repairs of the damage sustained in the January 2012 collision had already been carried out. He said they had been poorly done. He spent four hours assessing the vehicle.
[72] Transcript 131.33.
[73] Exhibit D14.
Mr Pennant identified damage to the vehicle relevant to the collision in this case. He said that all of the damage he inspected was at the front left of the vehicle. He noted that the repairs that had been carried out did not accord with the relevant standards. He said:[74]
The repairs did not reflect back to the ADR Standards, Australian Design Rule Standards, and then next to that the grille, that’s part of it, it won’t fit in the holes, in brackets. The left-hand headlamp rim broken, left-hand front headlamp base is bent and unsecure still due to radio support panel left side still damaged, that’s part of it. Headlamps were not aligned due to impact on left side, right-hand headlamp is focussed and down, that’s an alignment issue, that’s going to be part of the accident. Left-hand headlamp focussing upwards, wheel alignment tracking between left and right is out 5 mm. What I mean by that is on the left-hand side between the front wheel and the back wheel it's tracking 5 mm shorter than the right-hand side, so the impact on the left-hand side shows quite clearly that the wheel well and strut tower, left-hand side, was pushed back. The vertical lock panel still pushed back, again part of the accident, and repairs. Lower tyre rail left side still badly smashed and which has pushed the left-hand skirt back as well. The radio support panel, left side back, which has not been repaired, left skirt radiator support panel split welds broken’, what that means the vehicle before it came to me has got repaired and the welds were substandard and the wells have broken away between the skirt and the radiator support panel, they’re split.
[74] Transcript 134.21.
As regards any damage to the front or the right side of the vehicle, Mr Pennant said that there was damage to a headlamp grill but that no repairs were carried out on the right-hand front guard.
Mr Pennant said the new owner of the vehicle had made a claim against the defendant and his insurer, and that he was engaged by the new owner to repair the vehicle. All of the repair work related to the left side of the vehicle. He did not observe any other accident damage that was not related to the left-hand front of the vehicle.
In cross-examination, Mr Pennant said that the fan cowling sits in the centre front of the vehicle, as does the grill. Repairs were undertaken to the right-hand front skirt and the right-hand front door.
He said that the bumper overrider, which sits at the front of the bumper bar, is not necessarily in line with the chassis rail, rather it would be to the left, between the indicator and the bumper overrider.[75]
[75] Transcript 150.14.
The defendant
The defendant is 39 years old and works as a fencer. He and his family often undertake four wheel driving trips. They live a short distance from the Victorian high country, so the majority of their time has been spent in that area.
In 2012, they were on a family driving holiday. He was driving a Toyota Hilux 2003 which he had purchased around late 2010 or early 2011.
He described the track as relatively narrow and wider on some of the corners. It was basically two wheel marks through the bush up to the corner in question, where it did widen out a little.[76]
[76] Transcript 196.19.
The defendant described the precautions he took when driving a four wheel drive vehicle, namely having his headlights illuminated and driving to the conditions, with his UHF radio scanning channels so that he can get an idea if someone else is coming. Other than that he said he generally tries to be prepared for anything.[77]
[77] Transcript 197.3.
In certain areas he thought it would be a struggle to get two cars past each other due to the trees on the edge of the track. He said that, with care, one vehicle could pull over if another car came along.
The defendant recalled that due to rain the previous day, the inside corner next to the embankment was a lot more washed out and rougher than is shown on the photographs taken in 2016.[78] He said that as he approached the corner he was travelling at approximately 25 to 30 kilometres per hour.[79] He braked, and as he turned, stayed as far left as he thought practicable. The rut he described was approximately one metre from the embankment. He was driving approximately 20 centimetres from the rut. He slowed down to about 10 to 15 kilometres per hour as he turned into the corner.[80] He saw an oncoming vehicle as he turned and immediately braked in order to try and negotiate a pass. He estimated there would have been around three or four car lengths between the vehicles when he first saw the plaintiff’s vehicle. Her vehicle was travelling pretty well up the centre of the track, directly towards him. He believed there was room for the other car to pass on the track on his right.[81]
[78] Transcript 198.14.
[79] Transcript 198.30.
[80] Transcript 199.18.
[81] Transcript 200.12.
Parts of the track were not usable. There was a rough area next to the embankment, and further to the outside of the corner, there was a drop-off. He said that generally you would not drive in that area in case it gave way, but under the circumstances you could go slowly and manoeuvre past. He estimated that he was one half to three quarters the way around the corner at the time of the collision.
The defendant explained the difference between low range and high range in a four wheel drive vehicle. In low range gear in a four wheel drive vehicle, speed is reduced but the power and torque is increased.[82]
[82] Transcript 202.27.
The defendant marked on photograph A of Exhibit D17, the damage to his vehicle, that is, where the bumper overrider was torn.
As to the relationship between the vehicles at the time of the collision, the defendant said:[83]
Due to the corner there was an angle definitely, but more front on than definitely side on, but it wasn’t corner to corner or anything like that, it was more front on than anything else.
[83] Transcript 204.11.
He said as a result of the impact, the front of his car was pushed towards the centre of the road, approximately 20 to 30 centimetres. The chassis rail is in line with where he marked the impact on Exhibit D17.[84]
[84] Transcript 205.28.
The plaintiff apologised to him a number of times and said she was unable to brake.[85] Immediately after the collision his wife took some photographs while they were assessing the damage. He sent a copy of those photographs to lawyers in New South Wales early on and he has not been able to locate his own copy.[86]
[85] Transcript 204.38.
[86] Transcript 205.34.
In an insurance claim document, the defendant described the collision occurring as a result of the plaintiff failing to stop or keep to the left and the drawing he made was consistent with that description.[87]
[87] Transcript 208.16.
In cross-examination, the defendant agreed that he stopped in the path of the plaintiff’s vehicle because they were sharing the same track.[88] There was no prospect of him taking any evasive action.
[88] Transcript 216.32.
He said that the centre of the plaintiff’s vehicle hit the front bumper overrider on the left-hand side of his vehicle. It was not a head-on collision but a collision slightly to an angle. He agreed that from his description of the collision, the plaintiff would have needed to have had her right wheel on the washout or in the washout at the time.[89]
[89] Transcript 219.7.
The defendant agreed that the white mark shown on the bumper of his car was possibly an impact mark. While he said that he did not recall it being there before the collision, he denied that was the point of impact.[90]
[90] Transcript 222.33.
The defendant denied that the comparison of the two photographs, showing damage to each car, indicated that the point of impact on his car was the white mark which coincides with the dent virtually in the centre of the plaintiff’s vehicle. He did not accept that the impact to his vehicle was consistent with an impact from the plaintiff’s bull bar which is about the same distance and is consistent with an impact from that protruding welded section. The defendant denied he had ever described the collision as ‘head on’.[91]
[91] Transcript 228.13.
It was suggested to the defendant that the reason he had described the collision in the manner he had in insurance documents, was so as to satisfy his insurer that all of the damage to his vehicle had been sustained in the collision with the plaintiff. He accepted that the insurance company was concerned that some of the damage was not to do with this collision. It was suggested to him that he had tried to reassure the insurer that all of the damage was related to this collision, given he was facing the prospect of the new owner making a claim against him, if his insurer did not pay for a re-repair.
He accepted that in his insurance documents,[92] prepared in connection with the re-repair of the vehicle, the sketch he had drawn showed the drop-off to the side of the road but not the gutter. He rejected the suggestion there had been no gutter or ditch at the time of the accident.[93]
[92] Tender Book pages 47–49.
[93] Transcript 230.28.
The defendant denied that he entered the corner and went wide, either because he thought there was a ditch or because he wanted to leave himself room. He agreed that he was partly turned at an angle, but disagreed that he was not following the curve of the track and partly turned to the outside of the track. He said he believed that if the plaintiff had been careful she would have been able to get around his vehicle. He said the plaintiff’s vehicle continued at the same speed, but it did not accelerate.[94]
[94] Transcript 231.37.
In re-examination, the defendant said that it was not possible for him to take evasive action while stationary. The plaintiff’s vehicle had rolled approximately a car length back from impact, on the edge of the rut, and anyone getting out on the right side of the vehicle would have landed in that rough area.
Michelle Webb-Collins
Mrs Webb-Collins is the defendant’s wife and was in her husband’s vehicle along with her two children and mother at the time of the collision. She said her husband was driving approximately 35 kilometres per hour. He slowed down approaching the corner and then stopped.[95] The plaintiff’s vehicle would have been travelling at 30 kilometres per hour.
[95] Transcript 239.17.

She said in looking at the photographs taken in 2016, the gutter would have been deeper back in 2012. She marked where she said the left-hand side of her husband’s vehicle had been hit on photograph A of Exhibit D20.[96] She marked photograph B of Exhibit D21 where the impact occurred with the plaintiff’s vehicle. As a result of the collision, her husband’s vehicle was pushed over to the right a little. She recalled that the plaintiff apologised and said that she had panicked. She and her husband had been unable to find copies of the photographs she had taken just after the collision occurred.[97]
[96] Transcript 242.10.
[97] Transcript 243.27.
In cross-examination, Mrs Webb-Collins denied that her husband’s vehicle was hit where the white mark is shown on the bumper bar.[98] The vehicles were not exactly straight, but she could not recall the angle. She did not step out into the gutter because the vehicle was pushed out towards the track a little. Mrs Webb-Collins agreed that she was trying to piece together the collision from photos and not from her memory.[99] She and her husband had been unable to find copies of the photographs she had taken just after the collision occurred.[100]
[98] Transcript 246.27.
[99] Transcript 249.4.
[100] Transcript 243.27.
Roma Webb
Mrs Webb is the defendant’s mother-in-law. She recalled that the defendant had slowed practically to a stop before the collision.[101] She did not see the other vehicle until it was a couple of metres away and until it had just hit. She was sitting in the back seat. She said the defendant was definitely travelling on the left-hand side of the track.[102] They were, at most, two metres out from the left-hand side of the track and she did not get out of the car.
[101] Transcript 252.27.
[102] Transcript 252.10.
In cross-examination, she said that the plaintiff’s vehicle hit the middle of the bonnet of the defendant’s car. She agreed that the damage, which she saw when they got back to camp, was all from the middle to the left-hand side.[103] She was sitting behind her daughter. She agreed she had only a glimpse of the oncoming vehicle before the impact.
[103] Transcript 254.33.
Assessment of witnesses
I found all witnesses did their best to recollect the circumstances of the collision accurately. The evidence of Mrs Webb and Mrs Webb-Collins was not particularly helpful in determining the issues. Mrs Webb-Collins said she had little memory of the collision and was ‘reconstructing’, while Mrs Webb saw little of what occurred, did not get out of the vehicle and naturally enough, had been concerned about the welfare of her grandchildren.
The plaintiff impressed me as a credible and reliable witness, doing her best to recollect events accurately. I did not gain the impression that she was exaggerating or embellishing her evidence for the purpose of improving her case. She made concessions where appropriate. Clearly she is hard working and has taken a fairly stoic attitude towards her injury, returning to work full-time and continuing to work on a short-term contract basis thereafter.
I also found Mr Woods to be an impressive witness, who did not seek to exaggerate his evidence.
The defendant gave his evidence in a credible and straightforward way. He too was trying his best to recollect the events accurately. I will refer to my assessment of his evidence in more detail later in these reasons.
The plaintiff’s submissions on liability
The plaintiff has always acknowledged a degree of ‘fault’ for the collision, recognising a failure to drive sufficiently defensively so as to anticipate the situation of danger which arose and to give herself a reasonable opportunity to avoid adverse contingencies such as, in this case, a braking mishap.
It was submitted on her behalf, that while the defendant’s conduct was not the same, it amounts to a similar error of failure to drive defensively and to take alternative action. Neither driver, it is said, drove sufficiently defensively to the conditions, or in a manner that enabled him or her to anticipate and deal with oncoming traffic.
In Nominal Defendant v Bacon,[104] the plaintiff was following a truck travelling in the middle of the road, which was said to be the custom on such unsealed country roads. The truck was throwing up dust and, as it started to thicken, the plaintiff slowed her vehicle and started to veer towards the left. The defendant was driving in the opposite direction, also in the middle of the road. He saw the truck, but could not see anything travelling behind other than a cloud of dust and moved over to the side of the road. As, or immediately after, the truck and the defendant’s vehicle passed each other, the defendant drove into the cloud of dust, steering back onto the track and while doing so, collided with the plaintiff’s vehicle. While the plaintiff was found to be negligent, the trial judge found that the liability for the collision rested equally with both the plaintiff and the defendant. On appeal, the Court found that it was open to the trial judge to infer that had the defendant not steered back onto the track, the collision would not have happened and that the defendant’s negligence was a necessary condition of the plaintiff’s harm. The circumstances were such that the road was wide enough at least for two trucks to pass.
[104] [2014] NSWCA 275.
The plaintiff here asserts that the scenario in Bacon is almost identical to her circumstances in that the defendant came around the bend and stopped on the wrong side of the road. While the plaintiff failed to stop, if the defendant had not been stopped on the side her vehicle was travelling in, given that there was room enough for the vehicles to pass, the collision would not have occurred. The plaintiff alleges that the defendant’s action in stopping in the path is a necessary condition of this collision and both parties bear responsibility.
The defendant’s submissions on liability
The defendant says that his vehicle was as close as reasonably practical to the left-hand side of the road[105] and there was room for the plaintiff’s car to pass on his right-hand side. He says he stopped in response to the plaintiff’s vehicle heading towards him and, while there is no right or wrong side of the road, the plaintiff’s vehicle stopped on the defendant’s side of the track.
[105] Transcript 198.33–198.37.
It was submitted that the inescapable conclusion that follows from the behaviour of a four wheel drive vehicle driven in low range, is that the plaintiff had her foot on the accelerator.
Furthermore, the defendant says the plaintiff:
·was able to stop by either engaging the brake or the clutch;
·must have had room to pass the defendant either on her left or her right depending upon the exact position of the vehicles on the road, given that the track was about 7.5 metres wide and given the width of the cars was approximately 1.8 metres each; and
·this proposition is correct objectively, regardless of the evidence of any of the parties as to the point of impact.
In any event, the plaintiff agreed that if the defendant’s vehicle was positioned where she had marked on Exhibit P7, she could have gone to her right.[106]
[106] Transcript 92.32–93.1.
The allegation that the defendant was at fault for stopping his vehicle rather than steering it to avoid the collision does not, according to the defendant, stand up to scrutiny. The plaintiff agreed that the primary measure that could be taken to avoid a collision, given the conditions, was for the driver to be in a position to stop. The track was narrow and in some spots the only evasive action which could be taken was to brake and stop.[107] As a matter of logic, neither party could know the width of the track nor whether or not it was possible to pass around a blind corner. Bringing his vehicle to a complete stop was the most sensible and safest course for the defendant.
[107] Transcript 77.25.
As is noted in Flemings Law of Torts:[108]
On the other hand, a person’s conduct in the face of a sudden emergency cannot be judged from the standpoint of what would have been reasonable in the light of hind-knowledge and in a calmer atmosphere conducive to a nicer evaluation of the alternatives. A certain latitude is allowed when, in the agony of the moment, a person seeks to extricate him or herself from an emergency not created by their own antecedent negligence. The degree of judgment and presence of mind expected of the plaintiff is what would have been reasonable in such a situation, and he or she will not be adjudged guilty of negligence merely because, as it turns out, he or she unwittingly took the wrong course.
[108] John G Fleming, Carolyn Sappideen and Prue Vines (eds), Flemings Law of Torts (Lawbook Co, 10th ed, 2011) at [12.200] (citations omitted).
The defendant submits that while directed to contributory negligence, this paragraph is equally apt to defendants generally. Section 5R of the CL Act provides:
[t]he principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
That is, the test is the same whether it be for negligence or contributory negligence.
The defendant says that no conclusions can be drawn from the damage to the respective vehicles, and that the evidence of Mr Pennant does not give any real assistance. It is not possible to draw any reliable conclusions from the photographs as to the precise damage to the vehicles, nor the exact mechanism which caused the damage. If anything, the defendant submits, Mr Pennant’s evidence is supportive of damage to the middle and left-hand side of his vehicle and in particular, the bend in the chassis rail is entirely consistent with the defendant’s case.
The defendant submits that if it is found that the defendant’s vehicle was over to the right of the track such that the plaintiff was unable to manoeuvre around it, the primary cause of the collision remains the plaintiff’s failure to brake. In this regard, the defendant submits that the track required careful navigation when vehicles were approaching from opposite directions and the primary action necessary to avoid a collision was to be in a position to stop the vehicle.
In this circumstance, liability should remain solely with the plaintiff or, in the alternative, any contribution on the part of the defendant must be minor.
Findings on liability
I have had regard to all of the evidence and the submissions made on behalf of the parties.
Both the plaintiff and the defendant were competent and experienced drivers of four wheel drive vehicles. The track was narrow and unsealed. It broadened at the corner where the collision occurred to about 7.5 metres wide. Mr Woods and the plaintiff both said 7 to 7.5 metres at the point of collision, while the defendant said 7.5 metres at the widest point. The plaintiff approached the corner from downhill, the defendant from uphill. The photographs indicate that the gradient of the track at that point was fairly gentle. The outside radius appears to have had a ‘fall-away’ although the steepness of the fall-away is not agreed and there is no satisfactory evidence that enables me to say more. Each vehicle approached the corner at around 25 to 30 kilometres per hour. Neither driver saw the other vehicle until it was very close. The time between each driver seeing the other and the impact was very short, and estimates of speed at the point of collision vary. The defendant stopped his vehicle in the path of the plaintiff’s vehicle. The plaintiff did not stop, and although her vehicle continued in a forward motion, in view of the evidence of the plaintiff, defendant and Mr Woods, this does not in my view mean that her foot was on the accelerator.
The defendant and his wife recall a gutter or wash away along the inside curve of the on the track. The effect of the defendant’s evidence was that this gutter presented him with an impediment to keeping his vehicle close to the inner curve. He said his vehicle was on the inside of the corner, 20 centimetres out from the gutter, that is, about 1.2 metres out from the embankment. Mr Woods and the plaintiff have no recollection of such a gutter or wash away. In particular, neither recalled having to step out onto the wash away area when they got out of their vehicle.
In July 2012, when completing a description of the collision for his insurer, the defendant made no reference to this wash away as a factor on the relevant day, nor is there mention of the gutter in the pleadings filed on his behalf. On photographs of the track, the defendant and Mrs Webb-Collins marked where the defendant stopped his vehicle, that is, towards the outside curve of the corner. The defendant says he was travelling to the left (inside) of the corner, tracking the radius of the corner and straightening up as he approached the exit. He says the plaintiff’s vehicle was travelling ‘pretty much up the centre of the track’, three or four car lengths away.
Both the plaintiff and Mr Woods say they were travelling to the outside of the curve and that the defendant stopped his vehicle on the outside of the corner at an angle such that the side of his vehicle was ahead of them. Assuming what the defendant says regarding the plaintiff travelling up the centre of the track is correct, it would effectively lead to a collision that occurred more or less head‑on, despite the defendant’s evidence to the contrary. I accept that photographs are not necessarily the best means of assessing the dynamics of a collision on a roadway, but there is, in my view, value in the photographs of the damage to the vehicles and the evidence given by Mr Pennant, which to some extent corroborates the versions given by the plaintiff and her husband. It is clear from the photographs that there was impact to the defendant’s vehicle on the front left, as indicated by the white marks in that area of his vehicle. The minor damage to the right side of the defendant’s vehicle is consistent with impact to the left causing some displacement to the right of the vehicle and possibly tearing to the bumper overrider. In addition, Mr Pennant’s evidence as regards collision damage observed to the left front of the defendant’s vehicle adds support to my finding that the front centre of the plaintiff’s vehicle impacted the left front of the defendant’s vehicle.
In coming to this finding, I accept that there are limitations in the evidence, but in view of the objective evidence, I prefer the evidence of the plaintiff and Mr Woods to that of the defendant. The defendant’s conclusion that the plaintiff would have to have had her right wheel on or in the washout cannot be correct, and consequently, nor can his description of the angle of travel. The plaintiff’s evidence was consistent with the various reports made to insurers close to the time the collision occurred. Mr Woods said he was not uncomfortable with his wife’s driving up until immediately before impact, which is, I accept, not likely to have been so if she had been driving close to the inside corner. The only report made by the defendant was some six months after the event and any other description he gave has not been made available. Photographs that the defendant said were taken on the relevant day and which he said were provided to his insurers, were not produced. In making these comments, I do not imply that the defendant was not doing his best to recollect the events honestly. He was in my view doing his best to recall the events with accuracy. However, to have driven in the wash away, which the defendant assessed as an impediment to keeping close to the inside curve, makes a finding that the plaintiff was driving in that area on the track unlikely. The damage to both vehicles must necessarily put the placement of the defendant’s vehicle wider on the track than he was prepared to accept. I find that it is more likely that the defendant drove his vehicle wide of the inner curve.
It is uncontroversial that the plaintiff was negligent in failing to apply the brakes to her vehicle. Had she applied the brakes or put her foot on the clutch when she saw the defendant’s vehicle, she would have been able to stop. Counsel for the defendant submits that the inescapable conclusion that follows from the behaviour of a four wheel drive vehicle driven in low range is that the plaintiff had her foot on the accelerator. However, I cannot be satisfied on the evidence before me that is the case.
Given I have found that the defendant was driving over to the right of the track at the corner, there is some question as to what evasive action could have been taken. There would, at least on the measurement of the width of the track at around 7.5 metres, appear to have been ample room for the vehicles to go around each other, and the plaintiff agreed that if the defendant’s vehicle was where she marked by her on Exhibit P7 she could have gone to her right.[109]
[109] Transcript 92.32–93.1.
I accept that the primary measure to avoid a collision in the circumstances was to stop. Bringing his vehicle to a stop was, perhaps, the most obvious course for the defendant to adopt. I have found the defendant had positioned his vehicle more to the right as it came around the corner. He failed to leave himself room to manoeuvre his vehicle, such as to leave sufficient room for an approaching vehicle, thereby relying on the ability of that vehicle to stop. It was submitted on the plaintiff’s behalf, that the defendant’s conduct amounts to an error of failure to drive defensively and failure to take alternative action. He was the downhill driver on a blind corner. On his case, he slowed, but it is evident that he did not leave himself room to manoeuvre or to avoid an upcoming vehicle. He failed to anticipate and leave sufficient room for such a vehicle. When that risk manifested, he simply stopped in the path of the oncoming vehicle. He did not steer to his left, or attempt to reverse. He therefore made the occurrence of a collision dependent entirely upon the ability of the other driver to avoid it. When the plaintiff failed to brake, the defendant’s action in stopping, and his subsequent inaction or inability to act, converted the risk of a collision into a certainty.
As discussed by Gray and Layton JJ in Kenny v Ritter,[110] observations made by Wells J in Stoekel v Harpas,[111] where he spoke some three decades ago about the duty of defensive driving remain relevant. He said:
Three or four decades ago it was, speaking generally, reasonable to expect a driver to deal with the exigencies of motor and pedestrian traffic as they presented themselves from moment to moment, but he was not asked to look very far ahead and to seek out possible trouble. Today, I think that the situation has changed fundamentally. Population has increased; a high proportion of families have at least one car and not infrequently two; accidents are numerous; and death on the roads has become tragically familiar. In these circumstances, I think courts, when performing the role of a jury, are entitled, indeed bound, to require of motorists a measure of what is sometimes called defensive driving, or a look out that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger. Nowadays, for example, a young child on the footpath is not just a person so many feet away, but is a human being that may suddenly present himself in your path; a green light is not just an authority to spring off the mark without further thought, but is an invitation to look to right and left before moving off in case someone is trying unsuccessfully to beat the lights; a bus is not just a stationary vehicle, but represents cover from which, at any time, a pedestrian may emerge; a car with its turning flicker on may not be going to turn, but may have left his flicker on inadvertently; the car that you are following is to be kept a respectable distance in front of you because, at any moment, the driver may stop or slow down virtually without notice; a crest in the road is not just another part of the road, but is a danger point where a motorist, coming in the opposite direction, may well seek to pass on the rise. All these situations, and countless others besides, call for consideration by the reasonable driver because experience has repeatedly shown that perils on the road, as time goes by, seem to be giving less and less warning of their emergence. Of course, what I have said has its corollaries for other road users, but because of the marked increase in the power, weight and speed of today’s vehicles, as compared with those of the immediate post-war period, the implications for the drivers of motor vehicles are, in my view, stronger. The courts have, from time to time, spoken of the need to guard against human follies, but, in my opinion, there is a need for courts to emphasize that the guarding referred to includes an ever-present attempt to foresee dangers well ahead of the immediate driving situation.
[110] [2009] SASC 139 at [48]–[49].
[111] (1971) SASR 172 at 172–173.

Counsel for the plaintiff argues that while it may seem a counsel of perfection to analyse the conduct of both drivers, this was not a routine suburban driving incident. Both drivers knew they were engaged in a form of leisure activity which took them outside the conventions of routine driving. Each knew they were on a narrow track where two vehicles could not always easily pass and, in the event they met with an oncoming vehicle, it might be necessary to back up, pull off the track or otherwise negotiate what, in ordinary traffic, might be an unexceptional passing, requiring no particular forethought. Leaving aside attempts to assign blame as if one or other driver had failed to keep left on a suburban road, both drivers failed to drive to the conditions and in anticipation of a scenario which, on the evidence of the defendant, was entirely foreseeable.
I find that the plaintiff, in failing to brake, must bear the greater responsibility for the collision, but that in stopping where he did, the defendant has contributed to the collision occurring. The defendant’s actions in driving in the path of the plaintiff’s vehicle and stopping in her path were ‘necessary conditions’ of the occurrence of the plaintiff’s injuries. Taking into account all the circumstances of the case, in my view, the conduct of the plaintiff in failing to stop was far more significant than that of the defendant and her damages should be reduced by 70 percent on account of her contributory negligence.
Assessment of damages
Factual findings as to damages
Prior to the collision, the plaintiff worked full-time as a registered nurse. She was, because of the collision, unable to work at all for a period of time and then worked part-time until returning to work full-time in January 2014. The plaintiff continued to work full-time from January 2014 through to December 2015 and decided to retire from her position at SA Health for a number of reasons, which included her injuries, lifestyle and financial choices.
The plaintiff worked in part-time and short-term positions since she retired and is likely to continue working in such positions until at least the age of 70 years. The plaintiff, could, if she wished, work full-time.
Non-economic loss
Section 131 of the Act provides:
131 Impairment thresholds for award of damages for non-economic loss
No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
Neurosurgeons Mr Paul Carney and Mr Eric Eriksen, have assessed the plaintiff’s degree of permanent impairment as 5 percent and, as such, she is not entitled to an award for non-economic loss.
Past treatment expenses
The parties have agreed that the plaintiff’s past treatment expenses total $13,500.
Past loss of earning capacity
From the date of the collision until her retirement in December 2015, the plaintiff used her entitlement to sick leave, taking 172 days off work between the collision and 31 December 2013. The sick leave entitlements that were used totalled $31,923.38 gross and approximately $25,000 net.[112] Accordingly the plaintiff suffered no actual economic loss during that period. There is dispute between the parties as to whether the plaintiff has suffered a loss for which she is entitled to be compensated.
[112] Tender Book page 283.
The plaintiff relies on s 130 of the Act which she says dictates those amounts by which a Court must reduce the amount of economic loss of an injured person. It provides:
130 Damages for economic loss-reduction because of other amounts paid or payable
A court must reduce the amount of economic loss of an injured person or deceased person as a consequence of a motor accident by:
(a)the amount of any entitlement to or payment of compensation for expenses under the Victims Compensation Act 1996 for the injury suffered in the accident, and
(b)payments made to or on behalf of the claimant by an insurer or Nominal Defendant in relation to a claim made by the claimant (including payments made under Part 3.2 or Part 4.3), and
(c)any other amount of a kind prescribed by the regulations for the purposes of this section.
The plaintiff submits that no entitlements or payments under sub-s (a)–(b) have been made and no amount has been prescribed in the regulations under sub-s (c). If the section is prescriptive in the sense of covering the field, or prescribing exclusively the reductions to be made, either:
1. the common law position is preserved, or
2.if the common law position is displaced, by failing to deal with the present circumstances, it leaves the Court free to make an award for loss of earning capacity notwithstanding the effect of a sick-leave entitlement.
I do not accept the plaintiff’s interpretation of the section, as regards any displacement of the common law entitlement, which would expand upon such an entitlement. As has been submitted by the defendant, to find otherwise would be contrary to the objects of the Act.
In Graham v Baker,[113] the High Court held that where there is no financial benefit accruing from not using up an entitlement to sick leave, the loss is the value of the chance that the plaintiff might fall ill in the future and be compelled to take leave without pay.
[113] (1961) 106 CLR 340.
The High Court characterised the entitlement to sick leave in that case as:[114]
a right secured by the contract of service as part of the consideration for the employee’s services generally and the right is a right in the specified circumstances to absent himself from his work on full pay he became entitled to sick leave on full pay as one of the conditions of his continuing obligation to serve the Board in an appropriate case, the extinguishment or diminution of sick leave credits of the character in question here may, notwithstanding the view we have expressed, result in some damage. As Windeyer J. said in Paff v. Speed : “A plaintiff entitled to be paid by his employer (whether the payments be called sick pay is immaterial) while incapacitated, and who when he recovered returned to work in his old position, may nevertheless have suffered some compensable loss by his absence. If, for example, he was by the terms of his employment permitted only a certain number of days sick leave on pay during the year, he would incur some loss if those days were used up in an absence caused by the defendant”. In other words, he may incur a loss because he may face the possibility of being sick in future from extraneous causes at his own expense so far as wages are concerned.
The possibility, however, may be real and indeed in some cases it may appear that before trial the possibility has become a reality. But in the present case the question does not arise quite in this form because the respondent left the appellant’s employment in October 1957 and the verdict which he will receive should compensate him for the loss which his diminished earning capacity will entail. Nevertheless, consistently with the opinion which we have already expressed concerning the character of the respondent’s so-called sick pay, the fact that the terms of his employment with the Board entitled him to specified sick leave on full pay is a factor to which some regard ought to be paid in assessing that loss. In effect, it was part of the remuneration which, unimpaired, he was able to secure by his contract of service and, with his impairment, he may not be able to obtain employment on such a favourable basis.
[114] Ibid at 351–352.
As in Graham, the plaintiff had left her employment before trial. There is no evidence before me to show that she had time off for illness for which she did not receive sick leave entitlements, nor any evidence to the effect that she was unable to secure employment on such favourable conditions as previously. In the circumstances, there is no past economic loss associated with her injuries.
Future economic loss
The plaintiff submitted that damages for future loss of earning capacity should be assessed in the amount of $25,000 including a component for loss of superannuation benefits, based on the plaintiff working an extra day per week. In the alternative, the plaintiff submitted that such damages should be in the buffer amount of $40,000 for both past and future losses.
The defendant says that there can be no award made for future economic loss unless the plaintiff satisfies the court that the assumptions on which the award is based, is in accordance with the plaintiff’s most likely future circumstances, but for the injury. That is, any award must be in accordance with the requirements of s 126 of the Act, which provides:
126 Future economic loss—claimant’s prospects and adjustments
(1)A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2)When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3)If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
There is no evidence before me to establish that the plaintiff would have worked an extra day each week but for the injuries she sustained. The plaintiff’s decisions to retire from SA Health and full-time work were in my view made because of lifestyle. As I have indicated above, I found the plaintiff to be an honest and straightforward witness. Her evidence on the issue of her retirement and reasons for her decisions were, in my view, utterly guileless. She was ultimately able to return to work full-time for almost two years after the collision and, it would seem from the medical reports before me, there is no medical basis for any decision to work less. She said she could now work full-time and had told Mr Carney she had not retired because of her spinal injury but because she felt it was time to do so.[115] In Mr Eriksen’s opinion, as at 28 July 2014, the plaintiff was able to continue in her current employment and would be able to do so in the foreseeable future.
[115] Report dated 19 October 2016.
That the plaintiff is perhaps not working as many hours as she may like, relates to her lifestyle choices and, in particular, her desire to work in blocks of time, rather than extra days per week, so as to allow for greater flexibility. The plaintiff has in my assessment not established that there would be any difference in her working capacity but for the injuries she sustained.
Attendant care services
The plaintiff seeks damages for the care services provided by her husband after the collision. Mr Woods prepared a schedule setting out the number of hours claimed in relation to his services.
Attendant care services is defined in the Act as follows:
attendant care services means services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.
An entitlement to compensation for attendant care services is set out in s 141B of the Act as follows:
141B Maximum amount of damages for provision of certain attendant care services
(1)Compensation, included in an award of damages, for the value of attendant care services:
(a)     which have been or are to be provided by another person to the person in whose favour the award is made, and
(b)     for which the person in whose favour the award is made has not paid and is not liable to pay,
must not exceed the amount determined in accordance with this section.
(2)No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.
(3)Further, no compensation is to be awarded unless the services are provided (or to be provided):
(a)     for at least 6 hours per week, and
(b)     for a period of at least 6 consecutive months.
(4)If the services provided or to be provided are not less than 40 hours per week, the amount of compensation must not exceed:
(a)     the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:
(i)in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award—that quarter, or
(ii)in respect of the whole or any part of any other quarter—the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or
(b)     if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.
(5)If the services provided or to be provided are less than 40 hours per week, the amount of compensation must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.
(6)Unless evidence is adduced to the contrary, the court is to assume that the value of the services is the maximum amount determined under subsection (4) or (5), as the case requires.
(7)Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.
As such, no compensation is to be awarded if the services would have been provided to the plaintiff even if she had not been injured, or unless the services are provided for at least six hours per week, and for at least six consecutive months.
Mr Woods’s schedule assigns hours and levels of service provided during specific periods from January 2012 through to 13 October 2013. Thereafter he assigns four hours per week to his wife’s care. In the formulation of her claim, the plaintiff submitted she is entitled to compensation for services since 6 October 2013, on the basis of every second week. The defendant accepts that the plaintiff initially required attendant care services but says that the plaintiff cannot meet the threshold of six hours per week for any time past 25 February 2013. Furthermore, the evidence of Mr Woods that he has provided services at the rate of four hours per week since October 2013 provides no evidentiary basis for finding that the threshold is met every second week.
The plaintiff must establish that her injuries required that she be provided with six or more hours domestic assistance per week, in order to qualify for an award of damages for such assistance.
In his schedule, Mr Woods characterised the care he provided to the plaintiff from 25 February 2013 through to 6 October 2013, as ‘Level 4 – Independent, but some support required for sustained efforts,’ with a calculated time each week during this period of 6.5 hours. These hours were made up as follows:
Preparation of meals, clean up  .5 hour/day
House cleaning, vacuuming, mopping bathroom              1 hour/week
Shopping, food, chemist  1 hour/week
Gardening and pet care  1 hour/week
Total  6.5 hours/week
In his evidence, Mr Woods said he would spend about 30 minutes each week caring for their two dogs, over and above the time spent before his wife’s injury.
He conceded that after the collision ‘it’s probably better to say our shopping is a shared responsibility’.
From October 2013 onwards, Mr Woods said he has provided services at a rate of four hours per week.
In SampCo Pty Ltd v Wurth,[116] Basten JA, with whom Meaghan JA and Adamson J agreed, found that the trial judge in the matter, having dealt with the claim for attendant care services by averaging the assistance required from the day following the accident through to the date of the trial, was in error. The assessment is to be made on a weekly basis and not an average over many weeks. In my view, the plaintiff’s claim, based as it is on hours of service over a two week period, cannot meet the requirements of s 141B.
[116] [2015] NSWCA 117 at [91].
In Geaghan v D’Aubert,[117] the court approved the trial judge’s rejection of a claim regarding the care of the plaintiff’s animals and found that it was not appropriate to extend the principles of Griffiths v Kerkemeyer[118] to cover the care of animals kept as a hobby. Accordingly, there must be a deduction of 30 minutes per week on Mr Woods’ figures and in view of his evidence, I would not allow the plaintiff’s claim for assistance in meal preparation/clean up at 3.5 hours per week.
[117] [2002] NSWCA 260 at [55]–[66].
[118] (1977) 139 CLR 161.
Although neither medical examiner has addressed the issue of the need for assistance in daily activity in detail, nor it seems been asked to comment on the hours of assistance the plaintiff claims, in his report dated 17 July 2013, Mr Carney found that the plaintiff was able to perform all activities of daily living, but was cautious and modified activities if her back was sore. While I note that the hours Mr Woods has attributed to assistance with the everyday care of his wife is, he says, over and above the time that he would ordinarily have spent assisting his wife if not for her injury, I am not satisfied that the plaintiff has established the requisite six hours of assistance per week for any period beyond 24 February 2013.
I allow the plaintiff’s claim for attendant care services in the sum of $32,817.22
Future treatment
The plaintiff claims the cost of future aqua-aerobics and GP and chiropractic treatment.
While it is the case that the plaintiff engaged in aqua-aerobics as an activity once a week before the accident, I accept that it was not, at that time, for the purpose of treatment. In his report dated 28 July 2014, Mr Eriksen recommended that the plaintiff maintain aqua-aerobics twice per week.
As to chiropractic visits, I agree that a small amount should be allowed in relation to such treatment. While the plaintiff has not increased the number of visits since the collision, she now seeks such treatment in response to the injury she sustained. I also allow a small amount for additional visits to the GP.
The cost of two aqua-aerobic sessions is $32 per week. The projection of $32 per week using the multiplier of $703.90 for whole of life yields the amount of $22,524.80. I allow $25,000 on account of all future treatment costs.
Interest
Pursuant to s 137(4) of the Act, I reserve the question of interest until I have heard further submissions.
Summary of damages assessment
My assessment of the plaintiff’s damages is summarised as follows:
Past treatment expenses               $13,500.00
Past attendant care services         $32,817.22
Future treatment expenses           $25,000.00
TOTAL  $71,317.22
Conclusion
The plaintiff has established her entitlement to a damages award in the sum of $71,317.22. I consider that the defendant should bear 30 percent of the responsibility for the plaintiff’s damages, that is, the sum of $21,395.16.
I reserve the questions of interest and costs.