Amina Yebdoo v Alan Holmewood

FACTS

At about 2:30pm on 1 June 2017, the plaintiff was the driver of a Hyundai Tucson SUV motor vehicle ("the plaintiff's SUV") on Punchbowl Road, Punchbowl, and heading in the direction towards Canterbury Road. The collision occurred at the point where Warwick Street joined Punchbowl Road, on the right‑hand side, in that direction of travel. The plaintiff's SUV was stationary in lane 2, first behind the stationary right‑turning vehicle which was waiting for oncoming traffic on Punchbowl Road to clear so that it could turn right into Warwick Street. The right‑turning car had its right‑hand indicator light flashing. The plaintiff had been stationary for a period of approximately 10‑20 seconds. She wanted to proceed along Punchbowl Road but had not gone around the car in front because she perceived it would be difficult to manoeuvre into lane 1. There were parked cars in lane 1.
Stopped behind the plaintiff was the Toyota Hilux utility driven by Mr Hansford ("Mr Hansford's ute"). Mr Hansford also wished to proceed around the vehicle turning right but he was caught in the queue in lane 2 and was unable to move into lane 1 because of parked vehicles.
At the same time, the defendant was the rider of a Moto Guzzi, 750cc motorcycle (the "defendant's bike") travelling in the same direction as the plaintiff and Mr Hansford. The defendant stopped in the queue in lane 2, behind Mr Hansford's ute. Mr Hansford did not notice the bike behind his ute. The defendant, like the plaintiff and Mr Hansford, wished to pass the right turning vehicle by way of lane 1.
The plaintiff said that, in her side mirror, she could see the handlebar and side mirror of the defendant's bike a distance which she estimated as being two vehicles back. She could also hear the engine of the bike. The description given by the plaintiff of that sound, was agreed between the parties, to be not of assistance in assessing the defendant's manner of driving when he did proceed.
I did not find either the plaintiff or the defendant to give consciously untruthful evidence of the incident. The defendant's opportunity to describe his place of stopping to be behind Mr Hansford's ute was obviously greater than that permitted the plaintiff by her side mirror vision. For those reasons, I accept that the defendant did stop behind the ute.
The plaintiff maintained that the right turning vehicle in front of her remained stationary; however, for the reasons given, I prefer Mr Hansford's evidence that the vehicle in front of the plaintiff proceeded forward at about the same time that the plaintiff commenced to manoeuvre into lane 1 in order to go around it. The common evidence was that there was no parked car in lane 1 beside the right‑turning vehicle. The parties contested the precise location of the parked car in lane 1 in relation to Mr Hansford's ute and the point of collision. I will deal with that evidence briefly because it was the subject of contest; but, in my view it is not of great significance because Mr Hansford said the defendant's course to collision was without visible swerving. On those facts, the defendant was not relevantly affected by the position of the parked car.
The defendant's diagrams of the incident provided to investigators in February and March 2018 (Exhibits L and N) depict the front of the parked car to have been approximately equal to the rear end of Mr Hansford's ute. Also in those diagrams, he depicted his course from the stopped position into a lane 1 to have been clear of parked cars (they all being behind him).The following passage of cross‑examination fairly records his first description (transcript page 107, line 41 to transcript page 108, line 10): "Q. Do you remember passing the utility? A. Yes. On my right hand side, yes. Q. At that point, on your left were there parked cars? A. No. I could - I could see - if I looked over my left shoulder I could see the headlights of the last parked car. Q. So are you saying by looking over your shoulder that the parked cars were behind you when you were adjacent to the utility? A. Pretty well, yeah. Q. What I'm suggesting to you is that you kept going, going past the utility, in between - I know you disagree with this - parked cars and then the front of the utility. A. There's no parked car. Once I passed that utility, there was no parked cars on the left hand side. I didn't go in between them, there wasn't any there. Q. And the plaintiff's vehicle by this point had slowly made a turn into the left lane. A. That's correct." Ultimately, in re‑examination, the defendant conceded an overlap between the last parked car and Mr Hansford's ute of about half the length of Mr Hansford's ute: T113.25‑34.
On 6 March 2018, Mr Hansford provided a diagram to investigators of the incident (Exhibit D). Again, it is to be preferred on the question of the location of the past parked car. He was stationary observing the scene, when he watched the defendant on the bike ride past him on his left. He was waiting for the plaintiff's SUV to proceed because he could not access lane 1 because the parked car was there. His opportunity to describe the location of that parked car was superior to that of either the plaintiff or of the defendant. Mr Hansford described Exhibit D as not intended to be to scale, but to the best of his recollection. He said that he drew the course taken by the defendant on an assumption of the defendant having come from behind him but he first saw the defendant as he passed the front passenger side window of his ute: transcript page 78, lines 01‑19. In Exhibit D, the front of the last parked car is shown to be forward of the front of Mr Hansford's ute. The plaintiff also described a car in lane 1 forward of the front of Mr Hansford's. The plaintiff looked into lane 1 because she wanted to manoeuvre from lane 2 into that lane. There was space for her to do it but as she described the cars parked in lane 1, they were not so far back as to be not part of her consideration when manoeuvring into that lane: see the plaintiff's evidence in‑chief: T24.49 to T25.39.
Not surprisingly, the location of the last parked car cannot be precisely ascertained but on the balance of the evidence and my preference for the evidence of Mr Hansford, I conclude that the last parked car was positioned not behind and probably forward of the front of the ute. The Police Crash Summary Details (Exhibit H) which was admitted without objection recorded that when the plaintiff manoeuvred from lane 2 into lane 1 "there was only enough room for her vehicle". Accordingly, I find that the defendant rode through a passage between Mr Hansford's ute and the parked cars.
The strength of Mr Hansford's recollection arrived from his experience of the event. He attended the seriously injured defendant as he laid upon the bitumen. The following passages of Mr Hansford's evidence provide a description, which I accept, of what occurred (T68.33 to T69.16): "Q. So doing the best you can, could you tell his Honour what happened? A. I was travelling in a south westerly direction on Punchbowl Road, and don't remember the name of the side street, but we approached some - a car that was turning right. There was a vehicle in front of me that stopped, and couldn't go anywhere, because the car was turning right. The car that was turning right, moved forward a little bit, and the vehicle in front of me was able to - well, created enough room, and was able to move to the left, to go round the right hand vehicle, which hadn't completed its right hand turn. So, the vehicle started to move, and I was intending on following through, as there was a parked car beside me, and making it impossible for me to fit through the gap between the parked car, and the car behind the right hand turner. So, when things started to flow, I prepared to move. At that particular time, in my left hand window mirror, scenario in checking, the motorcycle - what I understand is called lane filtered, filtered down the inside of that - between the parked car, and myself, and yeah. The motor vehicle that was in front of me kept proceeding to move around the right hand turn vehicle, and the impact occurred. At the time that I had noticed the motorcyclist, I remember sounding my horn. Not sure if me sounding my horn startled the other parties, but it didn't avoid the collision of the motorcyclist hitting - hitting the car, and then going up over the bonnet of the car, and underneath the vehicle, and that's pretty much what I remember, until I went into reaction mode, to try and help, at that stage. Q. All right. First, go back a few steps, if I may? A. You're right. Q. This motorcycle, before it went past your car, had you seen it before? A. I hadn't noticed it, until it was dead beside me, I hadn't seen it in my rear vision mirror, and I don't remember looking in my rear vision mirror prior to it. I just - the first time that I a hundred percent recommend - recollect the motor vehicle, the motorcyclist, was when he was level with my passenger side window." At transcript page 70, lines 42‑49: "Q. And when you sounded the horn, did you observe anything at all about the motorcycle? Did it do anything different? A. I - as I said, the motorcyclist was in my side mirror when I first saw him. By the time I sounded my horn, he was probably, you know, fully or mostly past my car, because of my reaction time. So I - I don't remember him swerving, or stopping and - and, you know, applying any brakes, or slowing - I - I genuinely couldn't answer that." Also at transcript page 76, lines 07‑44: "Q. You saw the bike - so, obviously - well I don't want to say, what do you about your intention to move into the next lane, when you see the bike? A. I - I stopped. I'd jumped on the brakes. If I was at all moving, I was dead set not going anywhere, because that bike was going to be my bonnet if - if I'd have proceeded. Q. You pick him up, you won't move into that lane but the car in front of you, you see continues its path into that lane? A. Correct. Q. And you, do I take instinctively, blow your horn, because you can see there is an accident about to happen? A. About to happen. Q. And so, as this car in front of you moves into the lane, does the bike just plough into it, to use the vernacular? A. Um, that's from the actions that happened and, yeah, not being an expert or anything like that, I don't believe that the motorbike swerved, on the principle if the motorbike swerved, I feel that it would have been brushed off and headed towards the gutter-footpath as opposed to over the bonnet and under the vehicle. To me, it was a pretty much hit hard on - I wouldn't say t‑bone but, you know, 30 to 40 degree angle where he went that way as opposed to him starting to turn and continuing with the angle that had been created. HIS HONOUR Q. So the 30 to 40 degree angle was the angle of the vehicle in front of you? A. Correct and that's just again, a guess. I haven't physically, scientifically, measured that at all. HIS HONOUR: No one did, so don't you worry about it. KATSANIS Q. The vehicle was at an angle across the left lane and the bike was on a collision course with it? A. Correct."
The defendant estimated his speed to be at about 15‑20 km/h: transcript page 93, line 12. This approximated with the evidence of Mr Hansford of "a fast jog" and "up to around" 15km/h. Doing the best I can with the imprecision of the evidence, I find the defendant's speed to have been approximately 15km/h as he passed between the ute and the parked car. I accept, on the basis of Mr Hansford's evidence, that the defendant continued without slowing or braking of significance because it was not observable.
In chief, the defendant gave the following passage of evidence which might fairly be taken as the content of his actual recall of riding into the collision (transcript page 93, lines 15‑19): "Q. As you were going past the vehicle in front of you, can you tell us what next happened. A. I saw the white car moving out to the left into my lane, and then before I know it, I hit the brakes, and I then I just collided with the car, and that's all I remember. I hear - I remember hearing the noise, and that's it."
In this answer, the defendant timed seeing the plaintiff's SUV already in the course of turning and moving into lane 1 when he was beside Mr Hansford's ute.
The plaintiff said that she indicated turning into lane 1. The defendant gave evidence that he did not notice any indicator displayed by the plaintiff's vehicle: transcript page 31. Mr Hansford did not recall whether or not the plaintiff's vehicle indicated. The Police Summary Report (Exhibit H) was admitted without objection and recorded that the plaintiff did indicate. There is no direct evidence opposite the plaintiff's affirmative oral evidence. I find on the balance of probabilities that the plaintiff did cause her SUV vehicle to indicate when she merged into lane 1.
Counsel for the parties did not contest, nor is there any evidence to suggest that the line of sight between the plaintiff and the defendant was unobstructed (see transcript page 96, line 41; transcript page 105, lines 30‑50).
Expert accident reconstruction witnesses, Mr Jamieson for the plaintiff and Mr Hall for the defendant, provided original reports and together a joint report: Mr Jamieson Exhibit E; Mr Hall Exhibit 3; and the joint report Exhibit 4. They gave oral evidence simultaneously.
The facts I find are: 1. The plaintiff proceeded with indicator blinking to manoeuvre from behind the right‑turning car, into lane 1. 2. The plaintiff's SUV had commenced moving into lane 1 and Mr Hansford, having reacted by determining to follow the movement of the plaintiff's SUV into lane 1 to pass the turning car, had commenced to release pressure on his brake pedal (transcript page 72, line 46 to transcript page 73, line 1) and had turned his head to the left passenger window with the intention of checking his side mirror (transcript page 73, lines 15‑44) by the time the defendant had ridden his motorcycle as far as the side passenger window of the utility: transcript page 76, lines 06‑19. Mr Hansford's perception reaction was a normal driver's reaction time, in regard to which the expert evidence is discussed below. This preceded his physical reactions, including looking to the left to check his side mirror. 3. When passing Mr Hansford's ute passenger window, the defendant was riding at about 15km/h: Mr Hansford at transcript page 75, lines 25‑50; Defendant at transcript page 93, line 12. 4. The width of the passage through which the defendant rode between Mr Hansford's ute and the parked car(s) was approximately 1.5m, panel to panel, and not mirror to mirror: Mr Hansford's estimate at page 75, lines 05‑21; Defendant at transcript page 92, line 45. 5. The length of the defendant's passage with unobstructed view from the position when stopped at the rear of the ute to collision was approximately 15m: A length of 4.2 to 5m for each of Mr Hansford's ute and the plaintiff's SUV appeared to be common ground; expert oral evidence transcript pages 172‑174. The defendant's evidence estimated it at 30ft at transcript page 106, lines 30‑50. 6. The plaintiff's speed when turning from lane 2 into lane 1 was slow (Defendant "slowly" at transcript page 108, line 10 and transcript page 110, line 30) and this is consistent with the evidence of the manoeuvring of the plaintiff. The plaintiff thought the turning vehicle did not move, but I prefer Mr Hansford's evidence that he saw it moved a bit, permitting room for the plaintiff, who had been stationary for 10‑20 seconds, to be able to commence the manoeuvre: plaintiff transcript page 25, lines 15‑29; transcript page 46, lines 18‑46 and transcript page 47, line 31‑42; Mr Hansford at transcript page 72, lines 33‑45. 7. The defendant had some seconds to react. He estimated about 3 seconds from the time he saw the plaintiff's SUV already turning into lane 1 (transcript page 108, line 24). Mr Hansford estimated the time from when the defendant passed the passenger window of Mr Hansford's ute to be 2‑3 seconds (transcript page 69, line 21). Obviously, that evidence of timing was estimate based only and given 3 years after the event. My closer analysis of evidence which follows satisfies me that the defendant's estimate of approximately 3 seconds from the point of his perception of the plaintiff's SUV moving to impact is to be accepted. 8. The common evidence was that lane 1 was clear of parked cars where the plaintiff was turning her SUV into it. 9. The plaintiff's SUV proceeded at an angle across lane 1 as the defendant rode toward it and after 3m travel had achieved an angle of 30‑40 degrees at the time of impact: Mr Hansford at transcript page 76, lines 20‑44 (quoted above). 10. Accepting that the defendant believes that he "hit the brakes" before the actual collision (transcript page 93, line 18), I accept also the evidence of Mr Hansford that the defendant did not achieve any observable braking, slowing or swerving of the bike (transcript page 70, lines 45‑49) and rode directly into the side of the plaintiff's SUV such as is described in the vernacular as "ploughing into it": transcript page 76, lines 21‑30. 11. The defendant bike impacted the front passenger door area of the plaintiff's SUV (plaintiff at transcript page 26, lines 14‑50) and at the front bumper cover: Hall report Exhibit 3 at [7.3]. In this finding, I have preferred Mr Hall's reference to the record of repair to the plaintiff's SUV over the plaintiff's oral evidence as to the location of the second impact. 12. Once the angle of 15‑20 degrees of the plaintiff's SUV in relation to the defendant's bike was achieved, the plaintiff would not have been able to see the defendant's approach in her mirrors: agreed by expert witnesses Hall and Jamieson. 13. When the defendant's bike stopped at impact with the plaintiff's SUV, the defendant went across its front and onto the bitumen (plaintiff at transcript page 27, lines 13‑15 and transcript page 29, lines 09‑26). 14. The plaintiff stopped her SUV before driving forward causing her left rear wheel to travel over the defendant lying on the road (Mr Hansford at transcript page 69, lines 24‑32; transcript page 76, line 45 to transcript page 77, line 04). 15. Each of the plaintiff and the defendant did not expect another vehicle to be in lane 1: 1. The plaintiff repeatedly refused to accept that there was a possibility that a motorbike or other vehicle could have been coming through the gap between Mr Hansford's ute and the parked cars: for example, transcript page 53, lines 05‑45; transcript page 54, line 05‑32; transcript page 55, line 50 to transcript page 56, line 50. 2. The defendant did not believe that Mr Hansford's ute or the plaintiff's SUV would turn into lane 1 to pass the turning car as he himself intended to do travelling in lane 1, because they were all stopped: transcript page 111, lines 12‑15 and lines 38‑41. 1. The collision occurred during daylight when the weather conditions were fine and the road was dry. Duty Owed By Each Of The Plaintiff And The Defendant To The Other
The plaintiff conceded (and it could not, in any event, be properly contested) that when changing from lane 2 to lane 1, her duty was to take care that she proceeded safely in order to avoid a collision with any vehicle travelling in lane 1. The defendant conceded (and it could not, in any event, be properly contested), that he owed a duty of care to proceed safely whilst travelling in lane 1 under passing vehicles in lane 2, in order to avoid a collision with vehicles turning into lane 1 from lane 2. The parties conceded that, for each of them, the circumstance of their driving to under pass the vehicle turning right was dynamic and required vigilance. Specifically in this regard, the parties conceded that there was nothing unexpected in vehicles flowing from lane 2 into lane 1 in order to go around by under passing the vehicle in lane 2 turning right: transcript page 196, lines 15‑30. The plaintiff conceded that she was not entitled to assume that vehicles known to be behind her in the queue would wait for her to undertake, in lane 1, the turning car: transcript page 197, line 15; transcript 198, lines 23‑39. As a motorcyclist proceeding to undertake vehicles ahead of him delayed by the car in lane 2 turning right, the defendant was required to be hypervigilant of vehicles in the queue in lane 2 turning left to under pass in lane 1 (common opinion of the experts not challenged).
In Manley v Alexander [2005] HCA 79 at [11]‑[12], the plurality Gummow, Kirby and Hayne JJ stated the duty of riders and drivers on public roads as follows: "…driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path…the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events."
In the application of consideration of that duty to the facts of the case, the defendant submitted that the plaintiff failed, on the balance of probabilities, to prove that the defendant breached his duty of care. The defendant submission was centrally that the evidence failed to prove "precisely when the plaintiff's movement became a trigger for a perception" of the plaintiff's SUV entering lane 1 in his path: transcript page 211, line 33. It was put that the evidence did not prove that the defendant failed to keep adequate lookout and apply adequate braking. Breach of Duty of Care
The question of breach is to be considered by application of the general principles set out in s 5B of the Civil Liability Act 2002 (NSW) ('CLA'). A person is not negligent for failing to take precautions against a risk of harm unless found to have breached their duty of care by application of the provisions of the section.
The relevant risk for consideration of the manner of driving/riding of both the plaintiff and the defendant was: of injury consequent of collision between vehicles using lane 1 in order to under pass the car turning right from lane 2, in the circumstances of vehicles being stopped in a queue in lane 2 and there being parked cars in lane 1 for some undefined distance forward of the front of Mr Hansford's ute.
Given the above referred to concessions by the plaintiff that a vehicle from behind her might attempt to under pass using lane 1 and by the defendant that vehicles in lane 2 ahead of him might attempt to under pass by use of lane 1; there is no real issue that the risk was foreseeable within the meaning of s 5B(1)(a) of the CLA. The risk of personal injury resulting from a motor vehicle collision was plainly not insignificant within the meaning of s 5B(1)(b). The above referred to concessions amount to the parties conceding that, in the circumstances, a reasonable person in their position would take reasonable precautions against the risk of harm within the meaning of s 5B(1)(c). The expert witnesses agreed that 15km/h was not an appropriate riding speed for the defendant in the circumstances. The plaintiff was manoeuvring slowly.
The burden of taking precautions, for the purposes of s 5B(2), for each of the plaintiff and the defendant was only to maintain a proper lookout and to brake in time to avoid collision. Did the Defendant Breach His Duty of Care?
At the time of the creation of each of the expert reports, Messrs Jamieson and Hall were not aware that the defendant had stopped behind Mr Hansford's ute and therefore their calculations of speed and time within the written reports required correction. The experts did not inspect the damage to the defendant's bike or to the plaintiff's SUV. Mr Hall had measured lane 1 and lane 2. When the experts gave oral evidence, received simultaneously, they recalculated and adjusted their expert opinions according to the facts put to them as proved in the hearing.
The expert witnesses ultimately adopted the common sense assumption that the defendant would have ridden the bike down the middle of the passage between the parked cars and Mr Hansford's ute.
I am satisfied on the balance of probabilities, having considered the lay evidence and the and expert evidence (particularly at transcript pages 163‑171) that the time of travel of the defendant from behind the ute to collision was approximately 5 seconds.
Commencing at transcript page 172, I raised with the experts, Mr Jamieson's observation that Mr Hall's estimates of time and distance were "rubbery" such as to fall into the category of "guess" because exact measures such as the length of the gap between the defendant's bike and the rear of Mr Hansford's ute and the gap between his ute and the plaintiff's SUV could not be measured. Having considered the evidence given, in my opinion, Mr Hall's estimates of those gaps were a reasonable approximation within the common experience of driving in metropolitan Sydney within the meaning of s 144(1)(a) and (2). Nothing said by either party in submissions or during their opportunity to ask questions of the experts during oral evidence (s 144(4)) diminished my acceptance of Mr Hall's estimated measures in those regards as reasonable.
Close analysis of the facts is warranted because of the defendant's above submission that the plaintiff failed to prove the time (the "trigger for a perception") at which the defendant might reasonably have braked and thereby the defendant's opportunity to have decelerated. It is necessary that I repeat some references to evidence already made. My analysis finds the following: 1. The police Crash Summary Details (Exhibit H) gave a speed of between 5‑10km/h, achieved by the plaintiff SUV prior to impact. This assumption of fact is consistent with evidence given by both the plaintiff and the defendant that her SUV proceeded slowly. It is consistent with the plaintiff having to manoeuvre into lane 1 from behind the turning vehicle after being stuck there for 10‑20 seconds and with Mr Hansford's description of movement of that turning vehicle facilitating the opportunity of the plaintiff to make that manoeuvre. The plaintiff used the expression to "jump" into the other lane but, being an immigrant from Ghana and displaying a use of English consistent with that background, it plainly was a colloquial expression rather than a descriptive of the manner of her driving. The defendant conceded the evidence did not define or describe a "jump". Taking mid‑range, I assume 7km/h. 2. In his original report (Exhibit E), Mr Jamieson assumed the defendant's speed at 20km/h and the plaintiff's speed at 5km/h, equating to a closing speed of 4.2m/s. It is apparent from his calculation at paragraph 6.1 that he assumed speeds of vehicles travelling in the same direction and did not adjust his calculation for the plaintiff's vehicle being on a left trajectory of between 30‑40 degrees. I take the mid‑point of 35 degrees. For the purposes of calculation, taking 35 degrees as the plaintiff's angle of travel from the direction of the defendant's path, as a matter of mathematics; the closing speed was greater than if they proceeded in the same direction. In my opinion, it does not require specialist knowledge to understand this. Assuming 7km/h as the speed of travel of the plaintiff's SUV, on a direct trajectory of 35 degrees diversion from the defendant's path; then the plaintiff was travelling at only about 4‑5km/h or 1.3m/s relative to the direction of travel of the defendant, who was proceeding at 15km/h. So, assume a closing speed of about 11‑10km/h or 2.8m/s, rounded to 3m/s. Of course, the evidence does not permit this to be an accurate calculation of the actual closing speed, but it is an approximation relevant for consideration because it is within the reasonable range proved on the available evidence. It is an estimate, which contemplates only movement of the plaintiff's SUV whilst travelling into lane 1 and not its visible movement during its initial manoeuvring. The plaintiff's evidence was that she had to look forward at the right turning car, not just in the direction behind. On the evidence of police record (Exhibit H) and Mr Hansford, there was tight space for her turn. 3. The plaintiff's SUV in the first half of its travel might have moved only a short distance (Hall report, Exhibit 3 at [8.2], perhaps only around 60cm). Mr Hall assumed it most likely moved laterally towards lane 1 immediately from commencement of travel (Hall report, Exhibit 3 at [8.1]). In Mr Hall's opinion, the first half second of travel might have been "imperceptible" to the defendant. The evidence of manoeuvring which I just identified makes Mr Hall's assumptions of "immediately" and of "imperceptible", unhelpful. 4. A prudent motorcyclist under passing between parked cars in lane 1 and stopped cars in lane 2 with the intention of passing a turning right car in lane 2 should be acutely on the lookout for movement of the first car in the queue, here the plaintiff's SUV, turning into lane 1 for the same purpose. Of course, the plaintiff vehicle must have steered through the radius of a turn increasing its angle into lane 1 and making it progressively more visible to the defendant. The plaintiff's left indicator light signalled her intention. 5. For the reasons given, I consider 15m, on the balance of probabilities, to be a reasonable estimate of the length of travel of the defendant from behind Mr Hansford's ute to collision with the plaintiff's SUV. 6. The expert witnesses agreed and it was consistent with evidence in the hearing that the plaintiff's vehicle travelled about 3m. This would appear to be also consistent with the point of first impact at the plaintiff's front passenger door. 7. The course ridden by the defendant, during which he did not swerve, was always described by him (examples: transcript page 92, line 31 to transcript page 93, line 05; transcript page 95, line 34) as wholly within lane 1. After having measured the lane widths, Mr Hall expressed the opinion that it was available for the defendant to have ridden the passage wholly within lane 1. This calculation by Mr Hall was explained at transcript pages 187‑190. Mr Jamieson was unable to venture an opinion because of the variables, including positions of cars in lanes 1 and 2 relative to the dividing line. I find Mr Hall's proposition likely and I note that it is supported by his personal experience of extensive motorcycle riding (transcript page 182, line 21). On the whole of the evidence, I find that the defendant moved into lane 1 when he commenced to ride from behind Mr Hansford's ute and proceeded in a direct path, approximately in the middle between the parked cars and Mr Hansford's ute, and wholly within lane 1 to the point of collision. 8. That the view between the plaintiff and the defendant was unobstructed is not contested. 9. The experts agreed that driver/rider perception reaction times; which are the times before initiating response to the thing perceived, were: 1. For the defendant motorcyclists: 1.2‑1.5 seconds: Hall transcript page 177, line 49; Jamieson transcript page 178, line 16; 2. For the plaintiff driver: between 1.3‑1.8 seconds: transcript page 177, lines 06‑20.
Consideration of the lay and expert evidence arrives at the simple calculation of closing speed at 3m/s over a distance of 15 m. This amounts to time of the defendant's passage from the stationary position behind Mr Hansford's ute to the collision of around 5 seconds. Noting that it meets with Mr Hall's estimate of 5 seconds and Mr Jamieson's concession that 5 seconds was within the range (transcript page 17, lines 05‑12), the analysis above exposes reasonable approximations made on the available positive evidence. At typical acceleration, the plaintiff's SUV would take 2.25 seconds to reach 10km/h and travel 3m: Hall Exhibit 3 at [8.2]. I have assumed 7km/h as being her speed. The plaintiff was manoeuvring rather than "typically" accelerating. The evidence of her manoeuvring does not permit application of "typical" acceleration assumptions to be of assistance.
Neither Mr Jamieson, nor Mr Hall had been briefed to analyse the defendant's opportunity to see the plaintiff's car entering lane 1. I have already dealt with Mr Hall's comment that the first half second of movement by the plaintiff's SUV would have been "imperceptible". The plaintiff's flashing indicator is another reason nullifying the utility of Mr Hall's observation.
After allowing for perception reaction time of 1.2‑1.5 seconds, a prudent motorcycle rider taking the defendant's course and speed, had 3.8‑3.5 seconds to take collision avoidance reaction if the plaintiff's vehicle was visibly moving during the defendant's whole journey (5 seconds minus 1.2‑1.5 seconds). This is not inconsistent with the defendant's own estimate of 3 seconds, all variables considered. It is also not inconsistent with Mr Hansford's estimate of 2‑3 seconds from the defendant being at his passenger window.
Whereas in his original report (Exhibit 3 at [8.4]‑[8.6]), where he assumed a higher speed of travel for the defendant's bike, Mr Hall concluded that it was unlikely that the defendant had sufficient time and distance available to avoid collision; applying the same typical motorcyclist deceleration rates there exposed, to the speed and distances reasonably inferred on the evidence given at trial; the defendant had somewhere in the vicinity of 3 seconds of active braking opportunity to reduce the speed of his travel from 15km/h; after allowing for his perception reaction time.
I reject the defendant's closing submission (transcript 212.10‑40) that the defendant's active braking commenced after 1.2 to 1.5 seconds perception time reaction from the point of him being beside Mr Hansford's ute's window. The defendant submission wrongly assumed that the defendant's perception of the plaintiff's movement commenced not before he was at the window of Mr Hansford's ute. The submission failed to allow for the following events which preceded Mr Hansford seeing the defendant at his window: 1. Mr Hansford observed the plaintiff's SUV move; 2. Mr Hansford's reaction perception time of about 1.3‑1.8 seconds; and 3. Mr Hansford's physical reaction time, in which he decided to follow the plaintiff and turned his head to view his passenger side mirror.
Obviously, addition of these time elements to Mr Hansford's estimate of 2‑3 seconds travel of the defendant's bike from when seen, calculates to a time of more than 3.3‑4.8 seconds from the plaintiff's SUV visibly commencing to change lanes.
The defendant's submission is against the defendant's own evidence, quoted above from transcript page 93, lines 15‑20, that he saw the plaintiff's SUV moving out of lane 2 and into lane 1, not when he was past Mr Hansford's ute, but as he was passing that vehicle. Also at transcript page 108, lines 09‑24, the defendant gave evidence that he observed the plaintiff's SUV making a turn into lane 1 "slowly", that it was "in front of [him]" and he had about 3 seconds to react.
The test for breach does not require evidence of precisely when the defendant perceived that the plaintiff was turning, as submitted by the defendant; but rather, whether or not a rider in his position maintaining reasonable lookout ought to have perceived the flashing indicator and movement of the plaintiff's SUV and applied active braking to slow the defendant's bike. The conclusion at which I have arrived is that the prudent rider maintaining reasonable lookout would have observed that and have been actively on his brakes for about the 3 seconds estimated by the defendant.
In my opinion, the evidence is sufficiently positive to draw the reasonable inference that the time and distance available to the defendant for active braking of his motorcycle was enough to conclude that his reaction described by him as "then before I know it, I hit the brakes, and then I just collide with the car" (transcript page 93, lines 15‑20) describes his failure to actively brake in a timely fashion: Davis v Bunn (1936) 56 CLR 246 per Dixon J at [260]; Luxton v Vines (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at [358]‑[359]. Further, that his only achieving hitting the brakes and not visibly slowing the bike (as described by Mr Hansford) and impacting with the plaintiff's passenger's door was the result of late active braking because he failed to maintain a prudent lookout.
The defendant failed to take those reasonable precautions of lookout and braking as a reasonable rider in his position ought have done. It follows that the plaintiff has satisfied her onus of proof of the requirements of s 5B CLA and so established the defendant's breach of duty of care. Browne v Dunn - Defendant Submission
For completeness, I acknowledge that Senior Counsel for the defendant argued in closing submissions (at transcript pages 209‑213,) that this Court could not reasonably conclude that the defendant had breached the duty of care which he owed to the plaintiff because Counsel for the plaintiff had not cross‑examined the defendant on a number of key elements of the case on liability including, inter alia, precisely the timing of his observation of the plaintiff's SUV, when he commenced braking and the rate of his deceleration. It was therefore submitted that the plaintiff could not, pursuant to the principles of Browne v Dunn (1893) 6 R 67, make submissions which were prejudicial against the defendant. On that basis, it was further submitted that there was no evidence in support of the defendant's breach (transcript page 209, at lines 14‑15, 21 and 44‑45).
I have found cogent evidence of the defendant's breach of duty of care. In McDonald v Shoalhaven City Council [2013] NSWCA 81, Beazley P at [59] applied the following passage from the judgment of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 in relation to the rule in Browne v Dunn: "As Newton J observed (in Bulstrode v Trimble [1970] VR 840, at p 846), there are two aspects to be considered. Firstly, there is a rule of practice or procedure, based upon general principles of fairness, which is designed to achieve fairness to witnesses and a fair trial between the parties; and, secondly, there is a rule relating to the weight or cogency of the evidence. His Honour went on to say (at pp 848-850) that the second rule in or aspect of Browne v Dunn meant no more than that if a witness is not cross-examined in relation to a particular matter upon which he has given evidence, then that circumstance would often be a very good reason for accepting the evidence of that witness upon that matter; there is, however, no requirement in law that the tribunal of fact must accept that evidence, and no basis in law upon which the other party is precluded by this failure to cross-examine from leading evidence in direct contradiction to that evidence."
In the circumstances of the defendant having given the above quoted evidence of his observation of the plaintiff's SUV and of his reaction as well as his estimate of a time of 3 seconds, I do not accept the defendant's argument. In any event, I do not consider that this arises because there is clearly other evidence addressing those issues which the defendant submitted were not addressed in cross‑examination of the defendant (for example, the expert opinion evidence of Mr Hall and Mr Jamieson commenting on the distance available to the defendant and his rate of deceleration, Mr Hansford's oral evidence that the defendant did not visibly slow or brake). Plaintiff's Breach of Duty of Care
After allowing that the plaintiff's mirrors (assumedly properly adjusted in the absence of evidence to the contrary) would not have reflected to her the passage of the defendant's motorcycle once her SUV had achieved 15‑20 degrees from his line of travel; it is nevertheless apparent that she did not maintain a view of what was coming from behind her as she turned into lane 1.
Transcript pages 51‑53 provide a detailed exposition of her looking over her shoulder and in all of her mirrors when making the decision to turn into lane 1, then looking to the front as she manoeuvred from behind the car turning right, then scanning her mirrors for things coming from behind. She did not give evidence, of looking over her shoulder at a point when her mirrors did not give vision of what was behind. The obvious truth is that she was not attentive to what was coming from behind and this is shown by her refusal to concede the possibility that even a cyclist might have come between the parked car and Mr Hansford's ute. The line of sight between the plaintiff and the defendant over the 5 seconds of his passage was unobstructed.
As Counsel for the plaintiff submitted with candour in closing submissions at transcript page 201, lines 02‑07, "…our case can only rest upon the fact that the view, [in her opinion of the defendant bicycle being behind a second vehicle rather than Mr Hansford's ute], the significant distance that the bike was away in the stationary position, gave her the sufficient comfort to move in the way that she did, not expecting the bike would come that distance, and pose a danger in terms of a potential collision".
The plaintiff's failure to await the passage of the defendant's bike in lane 1 or to otherwise take action to avoid a collision, was due to her total failure to observe this approach until collision.
On the balance of probabilities, the plaintiff, who was paying inadequate attention to the possibility of a motorcyclist coming from behind, failed to keep adequate lookout and continued to proceed into lane 1 until impact. During the whole of her driving, the defendant ought have been visible to her. The plaintiff ought to have been particularly alert to the passage of the defendant on his bike because she had seen it in her side mirror before commencing to turn into lane 1. Her assumption that the defendant bike would not proceed in lane 1 because of the narrowness of the passage was not the assumption a prudent driver in her position would make.
The plaintiff breached her duty of care (s 5B(1)(c) and (2) CLA) by failing to take the reasonable precaution of maintaining adequate lookout and to reasonably brake to restrain her vehicle to avoid impact with the approaching defendant.
At paragraph 10 of the Defence, the defendant pleads contributory negligence. I assume from the pleading that the defendant relies on s 138 MAC Act in that regard. Among the particulars of contributory negligence pleaded are a failure to keep a proper lookout and a failure to change lanes with safety. For the reasons given, I am satisfied of the plaintiff's breach of duty of care in each of those regards. Particular (b), a failure to heed the warning of Mr Hansford's horn, is not made out. This is because the evidence does not permit, and indeed Mr Hansford himself conceded the fact, that the timing of his beep of the horn was such as to alert either the plaintiff or the defendant in time to affect their driving and riding respectively.
The plaintiff ought to have seen the defendant in time to cease her plan to change into lane 1 and by braking, have avoided collision. Admission, Spoken in Hospital
The plaintiff alleged that during a conversation with the defendant whilst he was in hospital on the day of the collision, he admitted fault. During evidence in chief, she gave the following evidence of the statement alleged to have been made by the defendant (transcript page 30, line 44): "A. …As soon as I opened the door I tried to blame him. I say, "Why you didn't stop?" And he said - you know, first thing to me he say, "Amina, it just happened. It just happened, don't blame." And he said, "I can't imagine I put trauma with beautiful - with your beautiful face." And he tried to get up from the bed to hug me so I hug him on the bed and - "
During cross‑examination, the conversation was put to the defendant and he gave the following evidence (transcript page 111, line 43 to transcript page 112, line 12): "Q. One other matter, I'm sorry. When you were in hospital, the plaintiff came to visit you? A. Yes. Q. And do you recall having discussions with her there? A. Roughly. Q. Do you recall her saying to you, "Why didn't you stop?" A. No, I don't remember that. Q. And you said, "It just happened." A. I don't remember that. I don't remember that happening. Q. Is it possible that it happened? A. Not really. Why? I - I - I was - I was in the right, I'm afraid. Sorry, I wouldn't apologise for something I haven't done. What was said to her - what was said to that lady was, "You didn't mean to run me over." Not that I was guilty or anything like that, I said, I - I didn't - you didn't mean to run me over, it wasn't on purpose. That's about the only conversation we went through, other than she was a bit upset because she ran over me."
In my opinion, the words attributed to the defendant in the above quoted passage of the plaintiff's evidence do not contain an admission, but rather a spoken attempt to ameliorate the plaintiff's distress by stating that there was no point discussing fault. This was his meaning of "don't blame". The amelioration is apparent from the defendant's reference to the distress on the plaintiff's face. In any event, the conversation occurred when he was severely injured and in the early part of his admission to hospital. It would not be a conversation normally associated with acceptance of legal consequence for what he spoke. I accept the defendant's denial of having made an admission of fault.

DAMAGES

It is common ground that the plaintiff suffered post‑traumatic stress disorder as a result of her experience of witnessing the defendant suffering serious injury whilst laying upon the roadway.
The plaintiff was born in Ghana in March 1972 and had completed schooling to the age of about 12‑13 years of age and year 8. The plaintiff's reading and writing in the English language is not at an employment function level. Her pre‑injury work included buying and selling food to restaurants as part of a family business before her migration to Australia in 2008. Since 2013, she had lived alone following her divorce. She was employed in process work which might, in a general way, be described as a packing.
At the time of injury, she worked for a business known as Beak & Johnston, which supplied cooked meat to large stores such as Woolworths. It was shift work. She would pack the meat in bags, seal them and box them on a conveyor. Prior to her injury, when the operator of the machine which sealed the food containers went on leave, the plaintiff received training for that work of machine operator. This included setting up the machine and monitoring its fixing of labels on packets and sealing packets. At the date of the accident, the plaintiff had received training in the machine operator work but had not yet become a machine operator.
Following the incident, she felt that she had become "a different person" because she was so stressed. She suffered headaches and felt sick. Her headaches interrupted her sleep. She lost relationships with friends. She forgot to fast for Ramadan because of her stress.
She lost little time off work. After only a few days off, at the encouragement of her boss, she returned to work, albeit she was in a very upset state when she did so. Whereas she had previously felt happy and confident working with the other process workers, she became estranged because of her changed mental state and was usually working alone putting the trays of food in boxes. Initially, she felt herself shaking at work. She became anxious that she might lose her job when a quality checker found that she had missed labels incorrectly fastened to the packaged food. In total, she lost about one weeks' work.
From 27 June 2017, her GP, Dr Haddad, prescribed Valdoxan, which she found helped deal with her anxiety. She considered the breakup of her relationship with a man in London who she met over the internet as due to "my trauma". She did not feel like talking to him anymore and was too upset, so she blocked him. She continued to lose relationships with friends and to cease going out socially; whereas previously she considered herself to be a 'party person' who liked to dance and used to cook for friends and take food to work to share with her group of workmates.
It took some months before she returned to driving and she is still anxious and feels panic when, for instance, she hears a car horn.
The plaintiff has retained her work at Beak & Johnston as a packer, but she has not worked as a machine operator. When her employer has asks what her plan with the company is, she always answers that she would like to be a machine operator, which she describes as 'going up a level'.
Whereas approximately four weeks after the accident the plaintiff had to attend Dr Haddad's rooms because she experienced fainting, she conceded during cross‑examination that her condition improved over the three years to the Hearing. She had continued through that period seeing Dr Haddad and a counsellor, Mr Costello. She found Mr Costello's treatment to have helped her significantly.
In cross‑examination, the plaintiff conceded that she had improved much as described by Dr Virgona, Psychiatrist, in his reports spaced almost a year apart, in December 2018 (Exhibit 1) and September 2019 (Exhibit 2), to which I will refer in more detail below.
As at December 2018, the plaintiff was already getting back to going out with friends and she had purchased a new dress to do so. She was attending parties, but she did not feel the same as she had prior to the motor vehicle accident. Nevertheless, she was more able to enjoy herself and to feel happy. She was more willing to drive. She was motivated to get back to as she had been prior to the motor vehicle accident. When she saw Dr Virgona in September 2019, her driving had increased and she was able to enjoy television comedy. In that year, she took a holiday to Perth to visit friends for nine days, during which she enjoyed lunches and dinners. In 2019, she was back to wearing makeup and had been to several parties. She agreed that in 2019 she felt much better than she had in 2017.
The plaintiff relied upon expert reports of Dr Thomas Oldtree‑Clark dated 20 December 2018 (Exhibit A), the vocational assessment report of Ms Olga Skiadopoulos, Organisation Psychologist, dated 15 March 2019 (Exhibit B), and GP clinical notes of her attendance upon Dr Haddad's rooms and consequent prescription of Valdoxan on 27 June 2017. That consultation note by Dr Haddad recorded the reason for the visit as being Post‑Traumatic Stress Disorder, that he prescribed of Valdoxan and that she had only that day started driving, but had experienced shaking when she saw a motorcycle. The defendant relied upon the two reports of Dr Virgona dated 11 December 2018 and 19 September 2019.
There is not a great deal of difference between the opinions of the doctors when they are weighed with her evidence. The starting point is acknowledgement that Post‑Traumatic Stress Disorder is a serious condition of the mind incorporating flashbacks of the event and exactly the type of interruptions of amenity of life, including social isolation and interference with capacity to function mentally at work, as was described by the plaintiff in her evidence. Gladly, the common expert opinion is that the plaintiff's mental health is improving. Dr Oldtree-Clark described the plaintiff's Post‑Traumatic Stress Disorder as originally florid, but at the time of his consultation, to be in remission.
Dr Virgona's comprehensive reports summarised the notes of Mr Costello, with which summary the plaintiff's written submissions took no issue at [89]. In his first report, Dr Virgona described the plaintiff to be "suffering symptoms consistent with a mild Post‑Traumatic Stress Disorder. She has responded somewhat to treatment, but her use of anti‑depressants is not consistent as she is had only (sic) a few sessions of psychological therapy". Assessing the plaintiff's partial remission in his second report (Exhibit 2), Dr Virgona commented: "The prognosis is good. The condition is in partial remission, her residual symptoms are mild and her global functioning is only mildly affected. With further time and a few more sessions of psychological therapy, she should achieve full remission". Dr Virgona considered that her need for Valdoxan treatment would remain for only 12 months given her remission. This was the most recently obtained evidence of assessment of the plaintiff's mental state.
It was agreed that the plaintiff is not entitled to an award of damages for non‑economic loss because her degree of impairment as a result of the injury caused by the motor accident is not greater than 10%: s 131 MAC Act.
Out of pocket expenses are agreed at $2,271.
It is agreed that the plaintiff requires ongoing medical attention for her injury and the quantum of future out‑of‑pocket expenses for treatment is agreed at the buffer sum of $10,000.
Exhibit N was an email dated 16 January 2019 from the Raw Operations Manager of the plaintiff's employer, which stated that she had learned the machine operator role but had chosen to remain a packer due to personal issues. This is consistent with the plaintiff's evidence, the personal issues being those arising from her Post‑Traumatic Stress Disorder. The plaintiff maintained in her evidence that whilst she wished to take on the machine operator role, since the motor vehicle accident, her mental state had caused her to refrain from seeking it. The Operations Manager's email stated that, as a packer, the plaintiff earned $43,392 without overtime, per annum; whereas had she worked in the role of a machine operator, she would have earned $42,150 to start and could go as high as $43,991 per annum, depending on performance. The email described the duties of a machine operator as including "a lot of paperwork on the line which is getting done through i‑Pads on the line for the traceability point of view". It will be remembered that the plaintiff lacks employment functional reading and writing skills in the English language.
Ms Skiadopoulos properly assumed that the plaintiff's mental state since the motor vehicle accident caused her to suffer deterioration of concentration and memory, as well as fatigue, making it difficult for her to work. Whereas Ms Skiadopoulos assumed that the plaintiff had not completed her job training to update her work to machine operator, that is not consistent with the Exhibit N email from the Operations Manager. Ms Skiadopoulos observed that the plaintiff drove to and from work but preferred to travel by public transport or ask a friend for a lift if she could avoid driving. Ms Skiadopoulos had been briefed with the letter of the Operations Manager, Exhibit N.
On page 11 of her report, Ms Skiadopoulos determined the plaintiff to be most suited to the work of a packer or process worker, that being the only experience that she has. She observed that whilst the plaintiff's oral communication skills are good (her imperfect English but adequate communication was observed by me during oral evidence), her literacy/numeracy skills are very poor, further restricting her from trying unskilled work in other industries. She observed that the plaintiff has "no computer skills and no other work experience which she can offer employers".
On the final page of her report, Ms Skiadopoulos expressed the following opinion, the first sentence of which is not contentious but the opinion contained in the second sentence is the ultimate judgment required of me and not properly the subject for the expert opinion: "Having worked with the same employer since 2015, she had demonstrated sufficient aptitude, commitment and promise that she was offered an opportunity to be trained as a machine operator. Had it not been for her reduced ability to concentrate and consolidate what she had learned following the accident, it is likely that she would have been able to be trained for the unskilled job of machine operator and increased her earning capacity marginally".
Whilst the Operations Manager in his email (Exhibit N) stated: "If she would of choosed to be a machine operator, she would of earned…"; the evidence does not permit me to assess the actual availability of the machine operator position. The evidence described her as "filling in" for the regular machine operator when the worker was on leave. Further, the evidence does not permit me to find that the plaintiff would have been successful with the "paperwork" to which the Operations Manager referred, nor that he was aware of her poor English literacy, numeracy and absence of computer skills. The evidence does not permit me to assess whether or not she would be successful in the machine operator role long‑term.
In the calculation of past loss, the plaintiff put it on the whole of the difference between minimum earnings as a packer and maximum earnings as a machine operator stated in Exhibit N: plaintiff's written closing submissions at [93]. The defendant calculated past loss on the average net basis between those two extremes: defendant's closing written submissions at [104].
Doing the best that I can with the above stated evidence, I prefer the defendant's calculation of past earnings loss because averaging the range between minimum earnings as a packer and maximum earnings as a machine operator most fairly meets the effect of the evidence; which is, that the plaintiff but for her injury would likely have had some opportunity to work as a machine operator, but the evidence does not permit me to assess how much of the time she would have worked in that role, nor whether having actually worked in the role, she would have been able to meet its demands for literacy and computer operation.
The defendant calculated an average net loss of $38 pet week which, to the date of judgment, rounded to approximately 3 years and 3 months to judgment, calculates to $6,194. Doing the best I can with the imprecise evidence regarding the time which the plaintiff took off work following the accident, an additional amount of $900 for one week of lost income is also appropriate. This calculates to a total of $7,094. I assess that amount as appropriate damages for past economic loss.
In addition, the plaintiff is entitled to damages compensating her for past loss of superannuation at 11%, which calculates to $780.
The parties agreed that the plaintiff is entitled to future economic loss. They also agreed that the Court should assess this head of damage on the basis of a "buffer" lump sum because precision on the available evidence is not possible and it would be an artificial exercise to engage in attempting to reach a precise calculation. The assessment is not of a loss of income, but a loss of the capacity to earn income which is or may be productive of financial loss: Graham v Baker (1961) 106 CLR 340 at [347]. The plaintiff is of the limited manual work experience skills already described, 48 years of age and female. But for the excellent regard in which it is apparent her employer holds her, her resume should she have to seek other employment in the public workplace, would be poor. Her competitiveness would be, to that extent, low. Ms Skiadopoulos observed at [4.3] of her report that the resume she received from the plaintiff contained spelling errors throughout. She assessed the plaintiff's retraining capacity as poor. She described "Insufficient transferrable skills to entice an employer to hire her" and Ms Skiadopoulos observed that the plaintiff's present behaviours consequent of her Post‑Traumatic Stress Disorder, including irritability, social withdrawal, anxiety, memory and concentration difficulties would all limit her opportunities of gaining employment, maintaining employment and retraining. Her difficulties with driving would make her unsuited to work which required a great deal of driving.
In compliance with s 126(1), I am satisfied that the plaintiff's disabilities expose her into the future to the risk of loss of her current employment and inability to find other employment. Although, the evidence does not permit me to assess this risk with precision. Events such as anger outbursts or inappropriate social behaviour consequent of the symptoms of her Post‑Traumatic Stress Disorder could possibly result in the loss of her present employment. That said, her progression and Dr Virgona's prognosis of the requirement of medical treatment for only approximately one year, cause me to partially accept the defendant submission that, after a period of four years, it is reasonable on the evidence to find that her remission will have largely reached a point of generally normal state: defendant's closing written submission at [111]. Whereas Dr Virgona, in his second report (Exhibit 2), opined that the plaintiff "should achieve full remission", Dr Oldtree‑Clark (Exhibit A) commented both that she was in partial remission and that she was "stable". On the evidence, there is a significant possibility that the plaintiff might not achieve full remission and indeed suffer for a significant period of years. Her vulnerability to anxiety, social withdrawal and anger on top of her impaired concentration are diminishing her earning capacity would detrimentally affect her opportunity to win and to maintain other employment.
In the plaintiff's closing written submissions at [102], it is submitted that the appropriate buffer would be $150,000. The defendant's closing written submissions at [111] submit that future economic loss, whilst awarded as a "buffer", should be limited to the submitted four years on the basis that it would compensate for the "most likely future circumstances but for the injury". At [112] of the defendant's closing written submissions, the defendant proposes a buffer of $15,000 including superannuation. This is put on the basis that discounting the $38 per week differential between earnings of a packer and earnings of a machine operator by 50% for the possibility of her not achieving work as a machine operator, over four years which would be equal to $5,000. The defendant submitted there is a possibility that she may fully recover in less than four years.
In my opinion, the appropriate compensation for future economic loss should contemplate the risk over the whole of the plaintiff's substantial working life of the possibility of residual symptoms diminishing her earning capacity, and acknowledging that her impairment is likely to be substantially diminished at about four years from now because of her impairment. It is possible she will remain vulnerable in the long‑term to periods of unemployment. In my opinion, an appropriate award of damages for future economic loss is $45,000.
For the reasons given, had I found the defendant liable, I would assess damages as follows: Head of Damage Amount ($) Past Out‑of‑Pocket Expenses $2,271 Future Out‑of‑Pocket Expenses $10,000 Past Economic Loss (including past superannuation) $7,874 Future Economic Loss $45,000 Total $65,145

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