Amy Savage v The Nominal Defendant

BLAMELESS ACCIDENT

1. The Plaintiff in the alternative pleads reliance on the blameless accident provisions within the terms of s 7C and Part 1.2 of the 1999 Act. In light of my findings as to negligence it is unnecessary to determine the alternative claim and the Plaintiff did not request that I do so. [63] Indeed, it was suggested that the issue would become the subject of further argument. [64]
2. The Defendant did put the issue of blameless accident in issue in its Defence even though it did not specifically raises s 7E. I am satisfied that in doing so, the Defendant is not precluded from raising the issue. However, the Defendant's only argument is that it was for the Plaintiff to establish that the provisions of s 7E do not apply. Counsel for the Defendant made the submission that "[i]n circumstances where we do not know what happened, [the Plaintiff] needs to consider that 7E would apply." No authority for this proposition was put. To the extent it is suggested that the construction advanced applies in "circumstances where we do not know what happened, [65] " it is not supported by the terms of the section. Indeed it would be odd if this were a matter that the Plaintiff needed to negative in light of the provisions of ss 7B and 7C. In the circumstances, no "evidence to the contrary" was put beyond the various scenarios raised in by the Defendant as possibilities. In my view, in the event that it was relevant, no act or admission being established, the provisions of s 7E were not engaged.

Plaintiff's Medical Evidence

1. Following the accident, the Plaintiff was taken to St Vincent's Hospital by ambulance. She was found supine on the road and was suffering from facial lacerations, contusions and amnesia. She had lacerations to her right shin, left pelvis and the front of the left knee and right shin. Whilst at hospital she was transferred from the public hospital to the private hospital. CT scans undertaken on 25 October 2011 revealed that at C4 a fracture of the right posterior-lateral aspect of the lamina and spinous process with mild inferolateral displacement. There was no comment on C7 and x-ray of thoraco-lumbar spine but it was noted that there was a history of left knee swelling. Otherwise, no fracture or dislocation was seen in the left knee, and there was no significant effusion. [66]
2. Ms Savage was provided with a cervical collar and discharged to her general practitioner the following day.
3. The Plaintiff wore the cervical collar for four months. She continued to take pain killing medication until 2 to 3 weeks after the accident when they were gradually cut back and then the pain resurfaced. Upon discharge, she was asked to follow up with Dr Steel in the Outpatient's Clinic in six weeks' time and for a repeat CT scan to be obtained.
4. A CT scan obtained on 28 November 2011 showed:- "The previously detected fracture or of the spinous process of C4 and C7 are again identified. There is extension of these fractures into the lamina of C4 on the left side. Similarly there is extension of the fracture of the spinous process into the lamina of the C7 on the left side." [67]
5. On 21 November 2011, Dr Wimalaratne began a mental health plan for Ms Savage arising out of the anxiety that she suffered following the accident. [68] For this purpose she was seen by Natalie Wong, psychologist, in early December 2011. In a report dated 13 December 2011, Ms Wong noted that Ms Savage stated that she believed that her stress was more as a result of her physical restrictions than trauma from the accident itself. [69]
6. After seeing Dr Steel on 8 December 2011, [70] the Plaintiff was certified fit to try to work. On 2 February 2012, a report was prepared by Ms Lee Goldberg, rehabilitation consultant, on behalf of Kairros, [71] which noted that Ms Savage was fit for suitable duties for three hours, five days per week on the basis that she was to have taxi transport to and from work. The report noted that Dr Wimalaratne certified Ms Savage unfit for work until 13 January 2012 and noted that Ms Savage underwent a further CT scan on 6 January 2012 which showed the C4 lamina and C7 lamina/spinous process fractures. Ultimately, the employer agreed to return to work on 10 January 2012 for three hours as per the medical certificate. The report further noted that Ms Savage attended an appointment with Dr Steel on 23 January 2012 to review the C4 and C7 diagnosis and noted that Ms Savage was advised that her neck fracture was still visible but stable and looking better. She was advised to continue wearing the neck brace for a further four weeks and at night to replace it with a soft neck brace and if sitting at home, to make sure that her head was supported. [72] She was directed to attend a further appointment with Dr Steel on 16 February 2012. Her return to work plan envisaged that Ms Savage would be upgraded to her pre-injury duties in approximately two months from that date.
7. In August 2012, the Plaintiff commenced physiotherapy. Mr David Kelly from Clovelly Road Physiotherapy reported on 28 February 2013 that he treated the Plaintiff for cervicothoracic pain and headaches, slowly working on the biomechanics (posture, breathing and muscle recoupment) and increasing her exercise. He noted that at the end of 2012, Ms Savage was relatively pain free, performing her full duties/hours in a four day per week job and increased her exercise to include pilates, swimming, brisk walking and even light weights at the gym. He noted that in January 2013, Ms Savage started to experience constant headaches and intermittent bilateral neck and shoulder pain. She felt that this coincided with the two week period of moving house. Her symptoms were said to be made worse by working but did not improve during her three day weekend. Mr Kelly recommended that Ms Savage return to her general practitioner for review. [73]
8. In his report dated 26 September 2012, Dr Bodel stated:- "Reports from Dr Steel are noted and in February 2012 he indicated that she should then at that stage discontinue the hard collar and slowly remove the soft collar and start neck mobilisation with stretching and increases in her exercise program." [74]
9. Dr Bodel noted that Dr Steel had cleared the Plaintiff to commence physiotherapy after repeating CT scans and the MRI scans to confirm the stability of the fractures.
10. An MRI scan was carried out on 19 July 2012. It noted that there was a right side disc protrusion at C3/C4 level with an old C4 superior endplate fracture anteriorly. [75]
11. Dr Bodel stated that the ongoing treatment was physiotherapy and the Plaintiff would need this "for at least four to six months to slowly improve paraspinal muscle tone and fitness and to return to a pre-injury high level of physical fitness and capability." [76]
12. Dr Bodel stated that the Plaintiff needed physiotherapy twice a week for four to six months to maintain optimal recovery and would need to slowly progress into a gymnasium based program to improve paraspinal muscle tone, fitness and core stability.
13. On examination, Dr Bodel found that Ms Savage had tenderness in the trapezius muscles at the base of the neck on both sides and this was most marked on the left. It was noted that she had a reduced range of neck flexion, extension and rotation in all directions but particularly to the right. He noted asymmetry of movement and dysmetria of movement. He further noted that there was extensive scarring on the right side of the chin, the anterior aspect of the right shin and left side of the pelvis and the front of the left knee.
14. On 11 April 2013, the Plaintiff was seen again by Dr Bodel. He noted that the Plaintiff still had pain which he described as bifrontal headaches. He noted that she had pain at the base of the neck, extending to the upper part of the thoracic spine and the interscapula areas. He noted that there was pain at the top of both shoulders, weakness in the neck and right shoulder girdle and that she noted that the right shoulder is "dropped". He also noted that there was still some anterior knee pain, but otherwise the wounds had healed. [77]
15. On examination, Dr Bodel found that there was tenderness in the trapezius muscles at the base of the neck on the right hand side. There was also some guarding on that side and the right shoulder was slightly lower to the left. He observed slight restriction of the neck flexion, extension and rotation in all directions and this was most restricted on rotation to the right. There was evidence, according to Dr Bodel, of dysmetria. He noted that there was a slight restriction of shoulder movement on the right and evidence of mild impingement on the right shoulder but no instability. There was painful retropatella acrepitis in the region of the left knee and pain on resisted knee extension. Dr Bodel stated that the Plaintiff did not require ongoing specific treatments apart from analgesic medication such Nurofen Plus and intermittent physiotherapy on an as needs basis with home based exercises. He observed that the Plaintiff had been coping with 32 hours per week of work and that may be her maximum. Dr Bodel opined that improved physical fitness may enhance her chances of returning to her pre-injury hours. [78] He further opined that there was an increased risk of early onset of arthritic changes in the supra spine at C3/4, [79] otherwise he considered that the condition had stabilised and had reached the level of maximum medical improvement. [80]
16. Dr Bodel described the Plaintiff as having a "posterior element fracture, but not a fracture of the transverse process; a mild displacement disrupts the spinal canal, but the fracture is healed without loss of structural integrity." [81]
17. On 10 September 2013, Dr Baldwin, medical assessor, reported that the Plaintiff had scarring to the chin, left hip, right shin, right knee and left knee as caused by the accident. [82]
18. On 29 September 2013, Dr Gorman, a medical assessor, noted that the Plaintiff had a fractured cervical spine caused by the motor vehicle accident and right shoulder soft tissue injuries. He found no right shoulder restriction of movement or trapezius tenderness and no thorax fracture or displacement. In conclusion, he found a right shoulder soft tissue injury. [83] In relation to the cervical spine, Dr Gorman did not accept Dr Bodel's view the that there was any "displacement disrupting the spinal canal" finding that the most recent MRI of 19 July 2012 and the earlier CT scans did not show spinal canal deformity secondary to the fracture and further that the Plaintiff did not have radiculopathy. [84] In conclusion, he found a fractured cervical spine at C4 and C7 that was stable and only minimally displaced with no spinal deformity. [85]
19. In a follow up report dated 8 November 2013, Dr Bodel disputed this finding in relation to the cervical spine stating: "[I]f the words 'minimally displaced' are applied to the 'C4 lamina' then that is a posterior element fracture which is not a transverse process or a spinous process which is minimally displaced and has now healed … (emphasis in original)" [86]
20. On 18 May 2015, the Plaintiff saw Dr Sheehan, a medico-legal consultant and occupational health and safety consultant. He noted that, whilst the fractures had healed satisfactorily, the Plaintiff had sustained a significant muscular ligamentous strain or tear, involving her cervical spine when she had her accident. The seriousness of this was said to be supported by the fact that she has been left with some restriction of movement involving both upper extremities. Ms Savage's prognosis in relation to her neck was considered to be less than good because it was expected that she would continue to suffer pain and stiffness in that area of the body. [87]
21. On 20 July 2015, the Plaintiff saw Dr Bodel who noted that she was not on regular medication but did occasionally take Nurofen Plus. He noted that she attended physiotherapy once per week and was performing well on an exercise program and undertook some yoga. Dr Bodel noted that the treatment ought to be conservative with rest and analgesic medication and exercise. He commented that Ms Savage was finding a reasonable balance between physiotherapy and work. He noted that Ms Savage found yoga helpful but once she returned to work the symptoms rose to a higher level, requiring physiotherapy and hot-packs. In his conclusion, he observed that it was unlikely that the Plaintiff could be upgraded in her hours due to persisting pain levels. [88] However, her clinical condition was noted as having stabilised. [89]

Defendant's Medical Evidence

1. On 25 June 2013, the Plaintiff was examined by a consultant neurologist - Dr Ross Mellick. Dr Mellick wrote a report on 1 July 2013. [90]
2. Dr Mellick obtained a history that the Plaintiff saw Dr Steel shortly after a discharge from hospital and there were complaints of "increasing pain" in the neck subsequent to the removal of the neck brace. Progress CT scans were performed subsequent to the discharge and a report of Dr Steel dated 17 February 2012 made reference to a scan revealing "physiological movement at the C4/C5 level." He noted that facet joints were intact and there was no instability. It was also noted that the spinal lamina fractures were healing with evidence of bone union. [91]
3. Dr Mellick also referred to a report from Dr Steel to Dr Wimalaratne which he described as follows:- "Made reference to steady progress, improving neck pain and significantly increased range of movement, with flexion and extension now being normal. Left lateral rotation and right lateral rotation were asymmetric, however, and described to be 700 and 500 respectively. He recommended Naprosyn slow release, one tablet daily." [92]
4. Dr Mellick noted that Ms Savage's routine was now as it was prior to the injury. He noted that she had reduced her hours of work and had not resumed driving a motor scooter. He stated that he was not aware of any impediment regarding her weekly and monthly routines, although did note that there was some containment during sporting activities because of knee symptoms but it was anticipated that these would resume. He did not anticipate any future treatment and was not aware of any specific impairment in regard to normal activities of daily living. He denied any neurological abnormalities concerning the Plaintiff's earning capacity.
5. However, Dr Mellick did note that Ms Savage reported a main existing symptom as headaches which were bifrontal and would occur three to four times per week. He noted that it would come on when she was at work and would last for hours and noted that if it were to come on when she is at home then she is able to lie down and relax to make it clear. Dr Mellick also reported soreness across the top of both scapulae and across the mid-line not associated with any abnormality of the upper extremity functions. [93] He further noted some discomfort in both knees when the Plaintiff would kneel but particularly on the left side. [94]
6. The Plaintiff saw Dr Mellick again on 12 November 2014. Dr Mellick prepared a report on 17 November 2014. [95] That report noted that the Plaintiff felt panicky when driving, especially when travelling fast and when travelling on motorways. It noted that the Plaintiff generally avoided taking medication but took one or two tablets per week or per fortnight due to soreness in the posterior occipital region and would take Nurofen and Panadeine. In his opinion, Dr Mellick noted:- "Ms Savage should be regarded now as having returned to a virtually symptomless state and to exhibit no abnormal neurological signs. I do not identify any neurological basis justifying restriction of normal functions. She continues to see a Physiotherapist on a regular basis. However, I would not myself see reason to do that, ongoing physiotherapy may in fact be contraindicated." [96]
7. In his conclusion, Dr Mellick found the prognosis to be favourable and that Ms Savage should be able to improve function. He did not see any need for Ms Savage to have ongoing medical or paramedical contact. [97]
8. The Plaintiff was also seen by Dr Lew Pierides, a specialist in occupational medicine. Dr Pierides carried out his assessment on 2 April 2015 and reported on the Plaintiff on 7 April 2015. [98]
9. On review of the investigations Dr Pierides found that the CT scan of 28 November 2011 revealed the fracture at C4 and also a fractured spinous process into the lamina at C7. He noted no displacement. In respect of the MRI scan performed on 19 July 2012 he reported that it revealed a small right para-central C3/4 disc protrusion with a small annular tear but no other cervical or thoracic disc protrusion. [99]
10. Dr Pierides' examination noted that the Plaintiff had a range of pain free motion of her shoulders and a full range of motion of her cervical spine. He reported that the Plaintiff was essentially functioning normally, although he noted that the Plaintiff was working one day less per week, he observed and did not consider that there was any need for her to work one day less per week because of the subject accident related injury. He noted that the Plaintiff returned to physical activities but not to the gym on advice of the physiotherapist, but Dr Pierides did not believe that there was "any physical subject accident reason" [100] for not returning to normal activities as prior to the accident, including gym exercise. He noted that the Plaintiff was fit for her full time work. Dr Pierides considered that sitting at a desk all day created neck tension and pain in everyone. He stated that the Plaintiff may need to get up more frequently to stretch but there was no reason why she could not work in a full time capacity as she did before the subject accident. Further treatment was regarded as unhelpful and physiotherapy could not be justified on an ongoing basis.
11. In conclusion, Dr Pierides regarded her prognosis as excellent and that there was no medical reason preventing her from returning to normal activities nor was there any medical reason for her to be attending physiotherapy on a fortnightly basis for massage and mobilisation. He stated that the Plaintiff should be encouraged to return to performing all normal activities including social, work and recreational activities. [101]

Assessment of Medical Evidence

1. Although the Defendant in its submissions conceded that the injuries sustained by the Plaintiff sound serious and life threatening, it argued that the medical evidence illustrates that the Plaintiff's fractures to her cervical spine have resolved. It is argued that no compression to the spinal cord is involved and the fracture at C7 was to the spinous process and at C4 to the vertebral body. Reliance was placed on Dr Pierides who referred to the MRI scan to state that it revealed a minor disc bulge at C3/4 with no neurological compromise.
2. Overall the views of Dr Gorman, Dr Mellick and Dr Pierides satisfy me that the Plaintiff has no spinal canal deformity.
3. Dr Sheehan did not view any investigations.
4. I accept that the Plaintiff suffered a fracture at C4 and C7 to the spinous process with an extension into the lamina on the left hand side. I find it difficult to accept Dr Bodel's view that the words "minimally displaced" as used by Dr Gorman are to be applied to the C4 lamina so as to mean that that is a posterior element fracture which is not a transverse process.
5. Be that as it may, the Plaintiff makes a complaint of ongoing symptoms which are discussed below.

Plaintiff's Evidence

1. The Plaintiff was born on 29 July 1978 and is currently 37 years of age. She was 33 years old at the time of the accident. She is single and without children. She attended school to the equivalent of year 10. She undertook a two year secretarial course in the United Kingdom. In 2003, she arrived in Australia from Ireland whereupon she commenced a career in recruitment.
2. The Plaintiff had a previous injury in 2011 when she fractured her foot and was in a protective boot for 6 weeks. This did not affect her work only her ability to run. Otherwise, the Plaintiff has had no other injuries prior to the accident.
3. The evidence was that before the accident, the Plaintiff had an active social life. Ms Savage described herself as very active in terms of fitness, exercising 5 or 6 times per week, including cycling. At the time of the accident and since August 2011, the Plaintiff was in intensive training for the Sydney to Wollongong bike ride scheduled for early November.
4. The Plaintiff gave evidence that after the accident and her release from hospital, pain was endured after her medication wore off. She said that she would wake up and would remember feeling like she had been in a motor accident every day. Her ribs in particular were very bruised. She described the pain in her ribs as "so intense." [102] She stated that she obviously had cuts and gashes for the first six to eight weeks following the accident and the pain brought home to her that she had been in an accident every day. Her evidence was that she was "itching to get back to work." [103]
5. She described the pain that she was receiving in the following terms:- "A. The pain come [sic] in after I was trying to cut back on painkillers, so probably actually maybe two or three weeks after the accident. At the time of the accident, my housemate at the time, Jodie Foster, was given all of my painkillers and she would administer them to me at various times of the day that I would need to take them, so I just remember I would take up and she would be like, "Here you go," you know, "you need to take these," and I would take more painkillers, and then they would also help me sleep as well. It was just when I tried to stop and start reducing the painkillers that the real pain - I would wake up, actually, before I would take the painkillers and I would be in pain from head to toe." [104]
6. Hot showers in the morning cleared her headaches and loosened "everything", but by the end of the day she had headaches and her back and neck were stiff again. [105] She stated that it had been like that since the day of the accident, although there is a notable difference when she does not work. She stated that she tries not to be too active on weekends, whereas she used to go out.
7. Before the accident, the Plaintiff's duties at her job at Tallentire O'Flynn Movsowitz Pty Ltd [106] included going around the office at around 7:30am in order to catch up on administrative tasks, arranging interviews with candidates, going through CVs and conducting background checks. Her official hours were from 8am to 6pm, however, she would generally arrive at about 7:30am and stay until 6:30 or 7pm. She described herself as doing more than 50 hours per week. During the day she would be in meetings, taking notes and typing them in the office. She would also be phoning and visiting clients for business development purposes. [107]
8. The Plaintiff returned to work after ten weeks on 10 January 2012. For the first four weeks she worked three hours a day from 9am to 12pm, five days per week for six to eight weeks. She stated that she was anxious to return to full time hours as soon as possible but found it hard as she could not sleep and was wearing a neck brace to go to work. With the assistance of the return to work coordinator she increased to seven hours per day for five days per week nevertheless she found it stressful working in a sales environment. She spoke to a doctor and he felt that it was best for her to work four days per week and to try to reorganise her work for longer hours on four days per week. She described getting headaches from working too many hours and aching in the neck. [108] She also described pain across the shoulder blades and finding it difficult to sit behind a desk. A special chair was bought for her and a structured head piece was provided so that she had additional support. [109]
9. In relation to her employment she stated:- "I continued to work there until July 2012. The job I work in is sales, essentially, and we all have targets to meet and I was under a lot of pressure to return to full time hours and to meet my targets, and I've never not met a target before. I was given a target and my managing director sent me an email and someone else was CC'd on the email and it was very official, you know, if I didn't hit my target they would have to review my position in the company. That was a really stressful period of time, I've never not done well at work and I was the second highest biller in the company at the time of the accident. I've never not met a target there or previous companies, and then to be potentially having to lose my job over an accident was so stressful, so in the end I resigned in July and I took a break and had a few months off." [110]
10. In July 2012, the Plaintiff resigned from her job with TOM because she was under pressure to meet targets and was placed on a performance management arrangement because she did not meet targets.
11. Ms Savage stated that her base salary was $75,000 including superannuation. [111] However, a large portion of her salary comprised of bonuses and, with bonuses, she estimated her annual income was between $150,000 and $160,000. [112]
12. The Plaintiff stated that at TOM, she received bonuses every month except for the first quarter when she joined. At Morgan McKinley, she stated that she had two bonuses in 2015, and maybe six times over two and a half years. [113]
13. The Plaintiff then went to work for Lawson Elliott for six months. There she worked for four days per week and increased her hours to full days. The work involved a specialisation in accounting recruitment. Her base salary was $64,000.00 plus superannuation. She stated that she made no bonuses. When questioned about this in cross-examination, she stated that she might have met the threshold to justify the base remuneration but not levels in which she would personally make money over and above that. [114]
14. After six months in June 2013, she went to work for Morgan McKinley. In cross-examination, Ms Savage agreed that she was under a restriction for six months as to the clients that she could work for. [115] She did not accept that this was the reason why she worked for Lawson Elliott rather than Morgan McKinley in the first place. [116] She rejected that the job was on offer for 30 hours per week, stating that this was something that she negotiated. [117] She stated that she was very unhappy with the way things ended when she was at TOM and wanted a change. [118]
15. She stated that she left Lawson Elliott because she was recruiting in an area which she did not much enjoy. The opportunity at Morgan McKinley came up and it was essentially a role which involved similar clientele as those with whom she worked at TOM. In particular, she noted that she had the ability to work with the likes of "Macquarie Bank again and Westpac, and the clients were [ones] I had a very strong relationship, and the clients I really enjoyed working with." [119] The salary was $64,000 plus superannuation, as with Lawson Elliott. When asked in relation to the ability to achieve bonuses at Morgan McKinley, Ms Savage stated:- "I have achieved some bonuses. I have noticed and I have tried to sort of work out where - how I'm not as consistent as I was previously, and I said what I've kind of concluded as the - by working four days a week, I have busy periods, and in those busy periods, I lose the ability to keep the flow of work going so I can have a good month, and them I can have a couple of quiet months, so it's much more up and down. Whereas I used to be always very consistent and meet targets every month. Now my performance is very much in peaks and troughs." [120]
16. She stated that she used to work as many hours as needed to be successful, whereas now she cannot work late as she has a sore neck at the end of the end. [121] She stated that she had spoken with her manager about restructuring her days to have Wednesday off, however, he refused as he preferred the continuity of the Plaintiff being able to work four days. [122] She stated that, when she first went to work at Morgan McKinley, she worked five days a week for eight hours per day and that this was as she had taken unpaid leave for three weeks and during that period she would not do anything in the evening or on the weekend in order to fully recover from work. [123]
17. In cross examination, Ms Savage stated that there was still tenderness in her right shoulder but there was considerable improvement throughout the course of time in terms of movement of her neck. [124] She hoped that there would a resolution or at least be a significant improvement in her symptoms over the future. [125]
18. The Plaintiff's evidence was that after 2012 she ran (or rode a bike) around Centennial Park for three to three and a half kilometres "once a week, once every two or three weeks" [126] or "from time to time". [127] Despite resuming running, lately she has been undertaking more yoga. [128] She also gave evidence of swimming in summer at the ocean pool at Bronte or Bondi but using a mask with a front snorkel to avoid twisting the neck. [129]
19. The Plaintiff also gave evidence that she undertook study, commencing in 2011 with the Australian Institute of Personal Trainers. She stated that, following the accident, she placed the course on hold and did not restart it until March or April of 2012. Certificates III and IV in Fitness were obtained by December 2012. [130] She stated that she put her course on hold, following the accident as the reading was very heavy and she could not read while she was wearing the neck brace. While she acknowledged that there was a practical component to the course, she stated that this involved watching personal training sessions rather than physically participating in them. [131] She stated that she sent the medical certificates to the Australian Institute of Personal Trainers and that they were aware of her condition and that she did not participate in physical activity. [132] She described that the study involved perhaps one evening per week as well as some time on a Saturday. [133]
20. The Plaintiff also stated that she was studying for a Bachelor of Health Science and Nutritional Medicine through the Endeavour College of Natural Health. [134] She stated that some nutritionists earned as much as she did as a recruiter. Although she had considered a career change, as it would be something easier to manage and to be successful in, she stated "I haven't really got a game plan for the end of that." [135]

Evidence from the Plaintiff's employers

1. Representatives of each of the three of the Plaintiff's previous employers gave evidence. Mr Grant Mosvowitz was the director of TOM and his evidence was that he was the primary director of the business with which the Plaintiff was employed from March 2010 to July 2012. [136] He stated that he was responsible for bringing the Plaintiff into the business and was able to observe her throughout her time in the business and work closely with her. He conceded that there was one manager between the two of them. He described the position in these terms:- "Her job description at the time would be what we call a 360 degree consulting role, which required her to talk to both candidates that we would place into financial services businesses; as well as clients, which are the businesses, or their hiring managers themselves. So required her to business develop, go on meetings, and get in front of as many clients and candidates as possible, with a view of being mandated, in her case, for short-term assignments, in which case she needed to have a very ready-made candidate pool at all times, in order to fill those vacancies." [137]
2. Mr Mosvowitz emphasised that a key part of the Plaintiff's role was "adding to [the] pool [of candidates] and nurturing that pool and keeping in touch with that pool." [138] He said that the job was very competitive, particularly on the contract side. In this part of the business, clients required short term hires. Mr Mosvowitz's evidence was that, once called in, it would be necessary to move very quickly and place a person within half an hour and two hours. [139] He said the contract hours for the Plaintiff were 8am to 6pm and certain employees, including the Plaintiff, worked longer hours, particularly for meeting with candidates. [140]
3. His evidence was that Ms Savage was a model employee in terms of culture fit and the degree to which she went above and beyond was displayed in her performance from a financial and fiscal perspective prior to the accident. [141] He confirmed that she started work before 8am and stayed after 6 pm. [142] He further described the Plaintiff as "an exceptional performer" [143] and definitely did not want her to leave. [144]
4. He stated that, after the accident, the Plaintiff made a "very, very slow transition" back to work where she was managed "very carefully … from a pain management perspective." [145] Following the accident, Mr Mosvowitz's stated that Ms Savage billed a third of what she had billed previously. Mr Mosvowitz accepted that before the accident the Plaintiff earned significant bonuses, [146] but following the accident she only received one bonus in her first quarter post-accident predominately through trail revenue for her pre-accident placements. However, as she made few if any new physical placements thereafter, she did not make a bonus again. [147]
5. In cross-examination, Mr Mosvowitz confirmed that in July 2012, when the Plaintiff left, she was working 35 hours per week. [148] He accepted that this was seven hours per day for five days per week.
6. He was not challenged on other aspects of his evidence.
7. The joint managing director of Morgan McKinley, Ms Vanessa Harding-Farrenberg was next called in the Plaintiff's case. Ms Harding-Farrenberg described Morgan McKinley as a recruitment firm that works across a number of disciplines specialising at the mid to senior level of the market. [149] She described the Plaintiff as a senior consultant in the accounting and finance team [150] where she was involved with a client base consisting of ASX listed businesses or leading multinational businesses. She stated that the office in which she worked was a small one.
8. She further described the role as assisting the client base in terms of bringing in talent to their business. [151] In that process she described Ms Savage's role in the following terms: - "So, Amy has developed a group of clients that she works with on a consistent basis. She is also always looking to complement that with new clients, to grow her portfolio; and she is doing what we would call a 360 degree recruitment consultant role, which means that she is charged with sourcing new candidates, maintaining those relationships, interviewing those candidates to assess them, meeting clients on an ongoing basis to start a relationship of [sic]. Should she be given a job to work, then she would be working that mandate, and she would be matching the right candidates with that mandate." [152]
9. Ms Harding-Farrenberg stated that when Ms Savage was employed, she knew that "she recruited in a key competitor [of Morgan McKinley] and [being] very successful in that competitor." She acknowledged that as a factor in bringing her to Morgan McKinley. [153]
10. Ms Harding-Farrenberg stated that she was aware of Ms Savage's motor vehicle accident and discussed it with her. She stated that when she met with Ms Savage to consider bringing her business, that point was discussed up front. [154] Further, she stated that Ms Savage from the outset was fairly strict in not working overtime because "it has an impact." [155]
11. The Plaintiff's salary was said to be $69,720.00 including superannuation, working four days per week. [156] However, Ms Harding-Farrenberg conceded that the top performers in the business could double their base salary through bonuses. [157] She stated that a lot of such employees would arrive at work prior to 8am and leave after 6pm, however, Ms Savage was unable to perform such hours. She stated that it may be different if someone had been working in the same area and had long standing relationships. She stated that those persons would have a network of people established.
12. In examination in chief, Ms Harding-Farrenberg described Ms Savage as average compared to other senior consultants. [158] She stated that the senior consultants billed significantly more than Ms Savage as "they have more time they can commit to." [159] She acknowledged that working more hours and days could make a difference, but she did not think it was "the only contributing factor." [160]
13. Her evidence was that Ms Savage was paid bonuses from time to time, however, these depended on successfully getting someone into a job. [161] She acknowledged that the industry was "fairly competitive" [162] and dependent on some extent on market forces and what was happening in the economy. [163]
14. She conceded that when the Plaintiff commenced in April 2013 that she was asked to work for five days for a couple of weeks before she went on annual leave in order to do the induction and training. [164] She stated that this was temporary and the Plaintiff subsequently switched back to her contract days. [165]
15. She further stated that the Plaintiff watches the hours that she works [166] and thereafter added in re-examination:- "You can see it having an impact, so from time to time, Amy - quite often, Amy is sitting in the office with heat packs around her neck, and you can see that she's not as well, and those times are generally when she has tried to do a little more. So I'll give you an example. Sometimes candidates aren't available during core hours so candidates are available before or after work to do an interview, and Amy wants to do a good job and will sometimes do that, and if she does it too often to try and get a bonus, you can see the impact that it has. But fundamentally, she tries to work within a set number of hours to manage that and to ensure that she's in good health." [167]
16. In cross-examination, Ms Harding-Farrenberg conceded that Ms Savage was a strong performer, very experienced and had strong relationships with her clients. She also stated that the Plaintiff was well-liked by the rest of the team, was willing to help others and gave guidance when needed, and was motivated and engaged in work as well as being punctual. [168]
17. On at least two occasions, Ms Savage was nominated for a "Values Heroes Award" which recognises people who put their clients, candidates and their peers first. [169] She acknowledged that the Plaintiff received very good feedback from her clients and candidates. [170]
18. The Defendant called Mr Craig Du Rieu, who was the managing director of Lawson Elliott Recruitment. He stated that the Plaintiff worked for Lawson Elliott between 2 October 2012 and 10 June 2013. He stated that she worked four days per week. When asked whether she performed well, she stated "surprisingly she didn't". [171] He described her performance in the following terms:- "Q. Why do you say "surprisingly", sir? A. Well, she had a lot of experience. Q. How was her work, as far as you were concerned, generally speaking? A. Yeah, it was fine. I mean, she put the work in, she worked hard. It was probably more of a quality thing than a quantity thing. Q. Could you just explain, sir, what that means. A. Well, a talented recruitment consultant might make in revenue $140,000 to $150,000 a quarter. That - I'm pretty certain she never made over 45 in a quarter, 45,000, so a fair way below someone of her experience, what they would normally do. Q. Of course, she was only working four, not five days a week? A. Agreed. Q. Would that be a factor in it? A. Yeah, I think it would have. It's a talent, it's an attitude, it's a four-day week. It's all of those factors. It's very hard to pinpoint what it would be." [172]
19. Mr Du Rieu was not cross-examined in relation to this aspect of his evidence.

Past economic loss

1. The Plaintiff's calculation of economic loss relies on reports prepared by Mr Michael Lee, the director of Vincents Chartered Accountants dated 1 June 2015, 21 September 2015 and 5 November 2015.
2. The Defendant relies on reports prepared by Ms Tamara Lindsay of Forensis Accounting dated 2 September 2015 and 16 October 2015.
3. The Defendant's first argument is that the Plaintiff was fit to work for five days per week by September 2012 or at the latest, by April 2013. [173] The Defendant contends that notwithstanding the Plaintiff's evidence the Workcover certificates tendered in the case demonstrate that the Plaintiff's GP certified her fit for work 8 hours per day for 5 days per week from September 2012. During early 2013 her capacity was reduced to 8 hours per day for 4 days per week. On 19 April 2013, the Plaintiff was certified fit for 9 hours work per day for 4 days per week. On 17 May 2013, the Plaintff was certified for 8 hours per day 5 days per week. The Defendant submits that the reference to 8 hours per day should be seen as fit for full time work. It states that upon objective review of the evidence tendered and given, the Plaintiff's treating doctors certified her fit to work in a full time basis without restriction and the opinion of the Defendant's qualified experts should be accepted and accordingly no allowance should be made for future economic loss.
4. The certificates were Exhibit 5 in the proceedings. Ms Savage conceded that she did not obtain any further certificates after 17 May 2013. [174] It was then put to her that this certificate represented her level of fitness to the present day and the Plaintiff stated:- "Just to explain, I - my work cover supplemented my salary during that period of time, and I didn't want to be supplemented any longer and keep that benefit going, so I had the certificate put back to five days." [175]
5. During submissions Counsel for the Defendant was asked as to its submission as to what led the Plaintiff to work the reduced number of days when she eventually returned to work. The following exchange takes place:- TURNBULL: It's hard to know. She says, of course, she feels pain and she can't do it. HIS HONOUR: There was also evidence of other witnesses who supported that. TURNBULL: The evidence, of course, from the gentleman from TOM takes it up to a particular period of time that's probably covered by what our allowance is and then you have the other lady, who's her current employer, who says "Well, she's doing" - I've set it out in my submissions, you know, she seems to be - - HIS HONOUR: I just was [sic] a bit confused because you put various questions relating to her studying for a physical fitness and nutrition - - TURNBULL: She's studying for a bachelor degree. She completed, in 2012, something else, she runs marathons - - HIS HONOUR: But where does this evidence fit in your case? TURNBULL: My submission is she has chosen, for whatever reason, that her desire to work four days a week but it's a question of capacity. The medical evidence, in my submissions, is mostly one-way, she has the capacity to work five days. She doesn't agree with that, of course, she says, "I only have the capacity to work four days," but your Honour needs to evaluate her evidence in light of the medical evidence and, may I say with respect, the lack of medical evidence from treating doctors: Dr Steel hasn't provided a report, the GPs haven't provided anything other than what I've put. So your Honour needs to decide whether it's reasonable for the plaintiff to say, "I cannot do what is ultimately not a particularly heavy job." Is that reasonable in light of the medical evidence of does she really have a capacity that, for whatever reason, she chooses not to exercise? HIS HONOUR: Leaving that aside for the moment, you're not suggesting that these other activities that she had are the cause of - - TURNBULL: I can't say that they cause her not to be able to work four days, I say they indicate that she could work five days … [176]
6. Ms Savage stated that neck pain and headaches were her main issue and they went hand in hand. She stated that she woke up with a stiff neck and headaches which usually cleared when she had a shower and got ready for work but then returned later in the day. Despite Dr Pierides recording that she had headaches occasionally she maintained that she had them most days. I accept her evidence in this regard.
7. The evidence supports the conclusion that the Plaintiff's injuries have now healed to the extent that she has been able to resume many of her pre-accident activities.
8. The evidence confirms that the Plaintiff was committed to her work and a high achiever. Her past and present employers by in large confirmed as much. She returned to work at the earliest opportunity when her circumstances allowed. I accept her evidence that her condition has improved however headaches in particular and stiffness in the neck restrict her capacity to work the hours that she previously did to the point that it has impaired her earning capacity. She is also at an increased risk of post-traumatic arthritic change involving the areas of injury.
9. I am satisfied that departure from TOM was brought about by concern about her ability to meet the targets set for her, a factor brought about by the restrictions in her ability to work a full week and extended hours. I do not accept that the Workcover certificates [177] accurately describe her condition on an ongoing basis in terms of her earning capacity. I accept that the Plaintiff has sought to maximise her capacity to work within the restrictions brought about by the accident to date.
10. In assessing the quantum of any loss the Defendant relied on a schedule prepared by Forensis Accounting which averages the Plaintiff's weekly earnings prior to the accident at $1646 and post-accident, at $1301. Although the salary component is expressed on a gross basis, the Defendant uses the difference between these figures of $355, to calculate the Plaintiff's past loss at $17,395. [178]
11. There are a number of differences between the reports of Mr Lee and Ms Lindsay.
12. Firstly, the Plaintiff received a significant amount of her remuneration at TOM, by way of bonuses for the years ending 30 June 2011 and 30 June 2012. From 1 October 2012, changes to the Fringe Benefits Tax laws relating to the concessional tax treatment of Living Away From Home Allowances required tax concessions to be limited to twelve months duration. The Plaintiff contends that based on the evidence of Mr Grant Movsowitz and Ms Vanessa Harding-Farrenberg, the Defendant's post-accident employers would have been amenable to attempting to keep the Plaintiff properly remunerated once the legislation had changed in order to keep her as an employee and to ensure that she was properly remunerated. On this basis the figures in Measure 2 of the report from Mr Lee form the basis of the Plaintiff's claim. The figures in Measure 1 are based on the living away from home allowance being taxed.
13. The report of Ms Lindsay notes that there was no mention in the Plaintiff's employment contract with TOM of a Living Away From Home Allowance. [179] Ms Lindsay states:- It is not possible to determine from the Payroll Advice reports how much of the LAFHA relates to the Plaintiff's taxable salary and how much relates to bonuses. However, a summary of the Plaintiff's remuneration from Tallentire O'Flynn Movsowitz Pty Limited for part of the 2011 year and the full 2012 year (notated as having been provided by Geoffrey Nathan of AwayPay) indicates that when paid a bonus, the LAFHA was $3,263 per month, and when no bonus was paid, the LAFHA was $1,892 per month. Accordingly, it is apparent that some of the LAFHA allowance formed part of the Plaintiff's base salary and some was part of the bonuses. In my personal experience as the HR Director of Horwath (NSW) Pty Limited for a number of years in the 2000's, a LAFHA was a tax packaging mechanism available particularly to overseas employees whereby a portion of their salary was treated as an allowance and was tax free. As is the case with the Plaintiff, it was not a contracted allowance in addition to salary, but rather a mechanism by which the employee's tax liability could be minimised at no cost to the employer. [180]
14. Ms Lindsay further notes that there is no mention in the Plaintiff's employment contract with Morgan McKinley of a Living Away From Home Allowance.
15. No questions were asked of the Plaintiff or her witnesses regarding any proposal to increase remuneration to take account of the changes in the tax arrangements of the Living Away From Home Allowance which commenced in 1 October 2012. In the circumstances, I accept the Defendant's submission that there is no evidence from the employer to indicate that income would have been increased as a consequence. [181] In his supplementary report, Mr Lee conceded that his investigations have not provided any empirical evidence as to how employers and employees have dealt with the issue. Accordingly in these circumstances, I prefer to accept the method of assessment used in Measure 1 of Mr Lee's report.
16. Secondly, the figures quoted in Mr Lee's report represent the immediate pre-accident income for the 12 month period preceding 25 October 2011. This was acknowledged by Mr Lee in his report of 21 September 2015. [182] Ms Lindsay proposed to take the average remuneration from 2005 to 2011 together with that of 1 July 2011 - 31 October 2011. To the extent that she did so this may to some extent address the question accepted by the Plaintiff In cross-examination, that the success or otherwise in recruitment was cyclical and depended upon other things such as the economy. [183]
17. The years 2008 and 2009 when the Plaintiff was working overseas would be excluded. Mr Lee acknowledged the validity of the approach proposed by Ms Lindsay, however stated that if such an approach was to be adopted, it was also appropriate to ensure that Ms Savage's historical levels of earnings be adjusted to reflect the current value of the earnings. [184] On this basis he calculated the difference between the Plaintiff's pre-accident average, weekly benefits before tax at $2654, [185] and post-accident accident average at $1354 being an adjusted difference of $1300. [186] In his report, Mr Lee indicated that a Living Away From Home allowance for the years ending 30 June 2005 and 30 June 2006 were estimated based on differences in the Pay As You Go [187] summaries and income tax returns for those years. In respect of the year 30 June 2006, he relied on a pay slip. The indexation and average weekly earnings for the purposes of adjusting the reduction in income were based on average weekly earnings for females in NSW. [188] On this basis, past economic loss under Measure 1 as at 5 November 2015, was calculated to be $191,673. [189]
18. In her supplementary report, Ms Lindsay asserts that Average Weekly Earnings were not an appropriate measure of wage movements and quotes commentary from the Australian Bureau of Statistics relating to the same. The commentary states that the purpose of this measure was to estimate the level of average earnings in Australia at a point in time and it was not designed for measuring movements in earnings. Further the commentary states that the standard error for period to period movements was much higher proportionately. If there is to be indexation Ms Lindsay advocates the use of Average Wage Index or the Consumer Price Index.
19. Ms Lindsay further draws attention to the fact that during the period the Plaintiff was employed at TOM, Lawson Elliott and Morgan McKinley, there were no increases in base salary. Whilst there were different base salaries between the firms she states it is necessary to consider if there were different responsibilities and reporting structures.
20. Whilst Ms Lindsay does not deny that there may have been some real increase in the 10 years from 2005 to 2015, she does not agree that any such movement would be equal to movements in Average Weekly Earnings or the Wage Price Index.
21. The Plaintiff whilst advocating the use of the Average Weekly Earnings has not addressed the criticism made by Ms Lindsay. Nevertheless I do not accept that relative stability in base earnings means no indexation should be applied to past earnings. A significant portion of past earnings included bonus payments. Further the evidence does not disclose a dissimilarity in the positions Ms Savage occupied at the three firms and the Defendant did not pursue any contrary argument in cross examination either of the Plaintiff or the three employer witness. Based on the commentary from the Australian Bureau of Statistics, I am satisfied that the appropriate measure of adjustment is the Average Wage Index which does measure change in the value of wages over time as opposed to the Consumer Price Index which measures prices.
22. A third point of difference between the two experts relates to the differences between the taxable income disclosed in the tax returns and the PAYG summaries for the financial years ended 30 June 2005 and 2006, where the variances were $29,596 and $63,327 respectively. Ms Lindsay assumed in her calculations that the tax returns represented the correct level of earnings. Mr Lee has opined that the difference could relate to the "tax free" Living Away From Home Allowance which Ms Savage received in other years. Ms Lindsay responded that in no other year were the amounts that were disclosed in the Payment Summaries higher than those in the income tax returns. Be that as it may and despite the failure to explore this in oral evidence, I am satisfied that it is appropriate to proceed on the basis of the assumption made by Ms Lindsay.
23. On this basis utilising Schedule 3 of Ms Lindsay's second report, the difference in the pre and post-accident average loss (indexed according to the Wage Price Index) is a gross amount of $1229. [190] The difference in Mr Lee's analysis utilising Average Weekly Earnings is $1300 gross. [191] So far as I can establish based on Exhibit J, Mr Lee utilises a net average figure of $917 per week. Ms Lindsay has not calculated a net figure but doing the best I can and based on her gross figure, I will allow past economic loss at $840 net per week. Utilising this figure, I will allow from the date of the accident to date (being 231 weeks) the amount of $194,040 accepting that the Plaintiff has been unable to utilise the full extent of her earning capacity to date.

Loss of past superannuation

1. Mr Lee asserted superannuation would be 9% of notional salary from 1 November 2011 to 30 June 2013, 9.25% from 1 July 2013 to 30 June 2014 and 9.5% from 1 July 2014 to date (excluding on amounts previously paid under Living Away from Home Allowance). The Defendant has submitted a rate of 11% for the past superannuation based on the net amount. I accept the Defendant's rate.
2. On my calculations approximately one third of past remuneration on average was from the Living Away From Home Allowance which at the time was excluded from superannuation. [192] Accordingly I allow 11% on two thirds of $194,040 (being $129,360), an amount of $14,230.

Future economic loss

1. In relation to the future, Mr Lee under Measure 1 calculated a difference between the Plaintiff's notional and residual earnings after tax, which on his calculations was $777.02 but based on the Forensis report was $797.38. At the date of the hearing, the Plaintiff's claim for future economic loss was $622,953 based on an assumed retirement age of 67 and discounted in accordance with the 5% tables without any allowance for contingencies or vicissitudes.
2. In embarking upon the assessment of damages for future economic loss, I am required to apply the provisions of s 126 of the 1999 Act.
3. The task required was described in in Nominal Defendant v Livaja [193] as follows:- The assessment of future economic loss involves an hypothetical calculation, with the need to balance a number of variables: see the recent discussion in Amoud v Al Batat [2009] NSWCA 333 at [22]-[28]. One purpose of s 126 is to require a structured approach to such a calculation. Subsection (1) is expressed in terms which emphasise the need for the plaintiff to satisfy the Court as to certain "assumptions" in respect of future earning capacity. The Court must only act upon such assumptions as are established to its satisfaction on the balance of probabilities. Those assumptions must accord with the plaintiff's "most likely future circumstances" on the basis that the injury for which he or she seeks compensation had not occurred. There is nothing obscure about the nature of the findings so required: they must be sufficient to establish a baseline of earning capacity, extending into the future, from which diminution caused by the injury may be calculated: see State of New South Wales (NSW Police) v Nominal Defendant [2009] NSWCA 225 at [83]-[84] (Beazley JA, Allsop P and Macfarlan JA agreeing). Further, the assumptions must be stated and there is authority for the proposition that failure to do so would render the judgment invalid: sub-s (3); Zahra v Brown [2006] NSWCA 162 at [71] (Beazley JA, Santow JA agreeing). The purpose of sub-s (2) is less clear. There is a missing step between sub-ss (1) and (2). An essential part of the calculation is the assessment of the consequences for the claimant's earning capacity as a result of the injury. Subsection (2) requires adjustment of the amount of damages "by reference to the percentage possibility" that "the events concerned might have occurred but for the injury". Reference in sub-s (2) to "those assumptions" must be a reference to the assumptions about future earning capacity, absent the injury, referred to in sub-s (1). Subsection (1) refers to both assumptions and "other events": it might appear that the reference in sub-s (2) to "the events concerned" was intended to mirror the reference in sub-s (1) to "other events", although the language is somewhat obscure. The assumptions or events upon which a baseline may commonly be calculated include: (a) identification of the skills, training and experience of the plaintiff, as at the date of the accident; (b) the work he or she was undertaking immediately prior to the accident; (c) the likelihood that he or she would have continued in such employment, but for the accident; (d) the possibility that he or she might have obtained promotion or other benefits, but for the accident; (e) the age to which he or she was likely to have worked in that employment, and (f) the possibility that the employment would not have been continuous. Each of these factors is liable to variation, depending upon the circumstances of the case. For example, the likelihood of improved earning capacity for a skilled or professional person, who was at the beginning of a career when the accident occurred, may be high. The possibility of unemployment for periods may be low in some occupations and higher in others. It is common under the general law to allow a reduction in the order of 15% (depending on the circumstances) for "vicissitudes", to allow for the possibility that some event other than the injury would have adversely affected earning capacity. Assuming that length and continuity of employment are treated as "events concerned", for the purposes of sub-s (2), that provision may be seen as allowing for variation for such vicissitudes.
4. The Plaintiff's case for the future is that based on a scenario that she will remain in her present condition for the rest of her working life. I do not accept that this is so. The Plaintiff's condition has improved and whilst I accept that she will continue to experience symptoms as I have found, these in my view are not likely to prevent her from transitioning to a five day working week. Ms Savage presents as being committed and stated that she hopes for further improvement. She has ceased medical treatment in favour of expanding her exercise activities including yoga. Now she rarely consumes pain medication and expanded her daily activities. I accept that there may be days and periods where her symptoms may prevent her from working especially if she was to develop post traumatic arthritis in respect of which Dr Bodel accepts she is at increased risk. [194]
5. I further accept that even resuming work for five days per week there may be times where she may still be unable to work extra hours either early in the morning or late in the evening as she previously did on a regular basis. This on the evidence would undoubtable affect her ability to earn bonuses. Furthermore there may be periods that she may be out of work and a need to find a new position. Although the Plaintiff has left two employers since the accident and managed to acquire other positions relatively quickly notwithstanding her injuries, this may not always be the case. Although there is an element of uncertainty, I am satisfied that it is appropriate to make some allowance for this in assessing loss of earning capacity.
6. Whilst there is evidence that work in recruitment is cyclical according to market conditions, the Plaintiff is highly regarded by her employers and their clients.
7. There is no evidence of the cyclical effects on the Plaintiff's earnings. Conversely there is no comparable evidence depicting the extent to which the Plaintiff's experience would have seen a growth in earnings in the future.
8. I am satisfied that it is likely that Ms Savage will remain working in as a recruiter to age 67. She has clearly established a client base whilst with TOM which to some extent she has been able to return to and develop in her current position. She is now established in the field and has significant experience.
9. In my view, but for the accident, it is likely that she would have remained in recruitment for the balance of her working life and accordingly have proceeded for the purposes of s 126(2) of the 1999 Act to incorporate a 15% reduction for vicissitudes.
10. Whilst Ms Savage has completed courses in physical fitness and is studying health science and nutrition she has no plans to work in that area at present. Nevertheless she stated that she had made enquiries about working in the area of nutrition, and noted that the earnings could be the same as those in recruitment.
11. In all earning capacity has unquestionably been reduced however it is difficult to assess. In my view the difference between the economic benefits of the Plaintiff's future earning capacity cannot be determined other than through broad approach of a buffer. [195] Bearing in mind the findings I have made as to likely future earnings. It is appropriate to award the Plaintiff a buffer for the future of $200,000. I allow for loss of future superannuation at 11%, being an amount of $22,000.

Fox v Wood

1. The Plaintiff has claimed an amount of $14,047 as calculated by Mr Lee based on applicable marginal tax rates on total income payments of $39,509. Ms Lindsay draws attention to the fact that Appendix 6 of Mr Lee's report shows a payment total amount of for CGU of $33,048.55. In his supplementary report, Mr Lee points out that the difference is accounted for by the amount of $6462 reflected in the CGU records at page 98 of his first report. This appears correct. Otherwise Ms Lindsay does not dispute the calculations. Although the Defendant advanced the figure of $1114, this appears to only reflect monies paid by the insurer direct to the Commissioner for Taxation. In the circumstances I accept the amount of $14,047 is the appropriate amount to be awarded.

Past out of pocket expenses

1. Past out of pocket expenses were agreed at $32,745.96. [196]

Future out of pocket expenses

1. The Plaintiff is seeing a physiotherapist every two to three weeks. She stated that she was surprised at how long the process had taken as she thought that by now, she would be fully recovered. She has questioned whether she will ever be fully recovered. She noticed improvement when she had the opportunity to completely rest and relax. She described the ongoing treatment as physiotherapy and exercise therapy. [197] She stated that her muscles go into spasm and it takes time for the physiotherapy to calm them down and that she was trying to cut down on the amount of physiotherapy. [198] She stated that she did not know whether she would put herself through cosmetic surgery. [199]
2. She stated that she would buy a box of Nurofen or Panadeine Extra once per month at $12 per month. [200] She would use a heat pack frequently and also sticky heat packs when moving and travelling. She would buy two packs per month at $7 - 8 for a pack of two.
3. In cross-examination, the Plaintiff conceded that she had not seen a general practitioner for a long time, perhaps two years. [201] She also conceded that she had not seen any other doctor for treatment of the injury in the last couple of years. [202] She conceded that she had cut back on physiotherapy because "it is expensive and I want to try and see how I can improve." [203]
4. In his report of 21 July 2015, Dr Bodel opined that ongoing treatment ought to remain conservative and include rest and analgesic medication as well as exercise. [204] Although he did note that the Plaintiff had found a reasonable balance between exercise, physiotherapy and work, he did not specify that the physiotherapy which she is undertaking would need to continue indefinitely. However, in his report of 18 May 2015, Dr Sheehan stated:- "With a view to keeping Ms Savage gainfully employed, she should be provided with 12 sessions of physiotherapy, hydrotherapy and remedial massage every year from now on, with each attendance being costed at $80." [205]
5. In his report of 7 April 2015, Dr Pierides stated:- "Further treatment would not be helpful. Having physiotherapy this long post-injury cannot be justified. She should be encouraged to return to all her normal activities, including going to the gym." [206]
6. In his report of 17 November 2014, Dr Mellick stated that he did not identify any neurological abnormalities pointing to the need for treatment in the future. [207]
7. The Plaintiff seeks the cost of physiotherapy at weekly cost of $40 ongoing as well as $3.00 per week for the cost of Nurofen and Panadeine Extra and $3.50 per week for the cost of sticky heat pads for the neck. [208] This is totalled at $45,983.85 although in the Plaintiff's Schedule of Damages, an award of $30,000 is sought on a buffer basis.
8. The Defendant contends that an award of $5000 is appropriate on a buffer basis.
9. There is no support for the Plaintiff's claim for physiotherapy on an ongoing basis based on one session a fortnight at $80 a session. Dr Sheehan recommended 12 sessions a year "with a view to keeping Ms Savage gainfully employed." [209] The Plaintiff's own evidence was that she was trying to cut back on physiotherapy because inter alia: "I want to try and see how I can improve". In his report of 26 September 2012, Dr Bodel noted that Ms Savage would need at least 4 to 6 months physiotherapy. In his subsequent report of 21 July 2015, Dr Bodel did not specify indefinite continuation of physiotherapy. On balance, I prefer the view expressed by Dr Pierides, that ongoing physiotherapy cannot be justified.
10. I accept that an allowance should be made for the cost of medications and heat pack strips. I allow the Plaintiff's figures of $3 per week for Panadeine Extra and Nurofen and $3.50 for sticky heat packs which on the 5% multiplier of 988.9 comes to an amount of $6434.35. The Plaintiff concedes that she does not see her general practitioner anymore and does not think she will put herself through cosmetic surgery. Accordingly no allowance is sought or made in this regard. [210]

Domestic assistance

1. Prior to the accident the Plaintiff and her two housemates engaged a cleaner for two hours at a cost of $120 per fortnight. They each took turns in paying. The cleaner would attend to the bathrooms and the kitchen, vacuum the house and mop the floor. After the accident, the cleaner began to change bed sheets and other such services. The Plaintiff could not recall if this necessitated an extra cost. It was argued that the cleaner's services prior to the accident were engaged as a matter of convenience and that after the accident it was a matter of necessity, although the Plaintiff could not recall if the cleaner's hours changed at all. [211]
2. The Plaintiff stayed with those two housemates until January 2013 when she moved into her current address where she lived with a backpacker for six months and then her current housemate Mr Niall O'Leanachain. The unit in which they reside has two bedrooms and the cost for cleaning was $80 per fortnight. The Plaintiff's evidence was that the cleaners who had been used from the previous residence ceased doing business in the previous 6 - 12 weeks and that a new cleaner had been engaged who charged $60 per fortnight. The costs were lower and the cleaning occupied some three to four hours. The Plaintiff gave evidence that she kept the house tidy herself but struggled with duties where she had to bend. [212] She stated that the cleaner did everything which she felt needed to be done. [213]
3. After the accident she stated that her roommate, Ms Jodie Foster, cooked, shopped and assisted her with showering and grooming for approximately six to eight weeks. Ms Jodie Foster's evidence was that she resided with the Plaintiff as a house mate at a residence in Bronte both before and after the accident. She described the Plaintiff before the accident in the following terms:- "Amy was very bubbly. She was very, very outgoing. She was someone that was really hard to pin down. So she would have people she would meet for breakfast, lunch and dinner. She exercised a lot. She was training. She would always do different things like train for a marathon or train to do at the time was the - that Wollongong big bike ride." [214]
4. Ms Foster's evidence was that she assisted the Plaintiff following the accident by taking a week off work and would attend to providing her with food and medication and assisting with showering. This continued for about a month after the accident. [215] Thereafter, Ms Foster continued to assist her by washing her hair and drying it, whilst the Plaintiff commenced doing the shopping and started to cook for herself. As far as domestic assistance, such as vacuum cleaning was concerned, the load was shared. She stated that after the accident the Plaintiff was never herself, was in pain, grew tired very quickly and was more at home because she was always tired. [216]
5. Ms Foster stated that after the neck brace came off the Plaintiff continued to be in pain and between herself, the other housemate and the cleaner the domestic tasks would be shared. She stated that she left the house to move to Manly in January 2013. [217]
6. In cross-examination, the Plaintiff conceded that her current housemate does not do any of the cleaning around the house and that they both rely on the cleaner to clean to floors, bathrooms and the like, sharing the cost between them. [218]
7. In support of her claim, the Plaintiff cited the report of Dr Sheehan which asserted that the Plaintiff would require eight (8) hours of domestic assistance each week in order to keep her as productive as possible in the work force and comfortable enough at home to enjoy life. [219] In his report on 7 April 2015, Dr Pierides stated that the Plaintiff required no handyman or home assistance. In his report of 17 November 2014, Dr Mellick concurred with this opinion. [220]
8. Dr Bodel stated in his report, that the Plaintiff required three hours per week of ongoing care. [221] Nevertheless, the Plaintiff acknowledged that, consequent to the decision in Boral Bricks Pty Ltd v Cosmidis, [222] it is not possible to distinguish his recommendations from the circumstances which led the Court to view the evidence of an orthopaedic surgeon as inadmissible on the question of domestic assistance. Nevertheless, the Plaintiff's claim was for three hours of care per week. It was asserted that, as there is no evidence that the assistance can be provided gratuitously, it should be awarded on a commercial basis. Further no claim is made for gratuitous care pursuant to s 141B of the 1999 Act.
9. The Defendant contended that Dr Sheehan does not hold the kind of experience to assess the requirement for domestic assistance. I do not accept this is so although I would not agree with his estimate of 8 hours per week. In my view there is force in Dr Sheehan's view that the provision of assistance would assist in keeping the Plaintiff productive as possible in the workforce. I am less certain as to what Dr Sheehan refers to as the need for assistance to be "comfortable enough at home to enjoy home life" although I accept that heavy household maintenance and cleaning should be avoided [223]
10. In Van Gervon v Fenton, [224] Mason CJ, Toohey and McHugh JJ stated:- "No doubt some of the services which are now needed by the appellant were provided for him by his wife before the accident. But with great respect to those judges who have taken the contrary view (27) See for example, Johnson v. Kelemic; Kovac v. Kovac; Maiward v. Doyle; Carrick v. Commonwealth of Australia., no allowance in favour of the respondent can be made for such matters. A defendant is no more entitled to have the pre-accident voluntary contribution of a spouse taken into account than a defendant would be entitled to have the pre-accident work of a paid housekeeper taken into account. If the defendant has created the need for the services, that person is not entitled to have the damages reduced because, before the accident, the plaintiff elected to pay for similar services or had the benefit of having them performed gratuitously. By the tort, the defendant has transformed the choice of the plaintiff to pay for such services or to have them done voluntarily into the need for the plaintiff to have those services performed for him or her. If the defendant was entitled to credit in respect of services which had been provided for the plaintiff before the accident (either gratuitously or by contract), the plaintiff would receive a smaller amount of damages than a plaintiff, with the identical need, who had not had any services performed for him or her. It would not be consistent with the law relating to third party arrangements to distinguish between the plaintiff who, before the accident, had none of the services performed for him or her and the plaintiff who, before the accident, either paid for, or had performed gratuitously, some of those services (28) See The National Insurance Co. of New Zealand Ltd. v. Espagne [1961] HCA 15; (1961) 105 CLR 569."
11. Although the facts in Van Gervan v Fenton itself did not involve commercial cleaning services, the case of Marshbaum v Loose Fit Pty Ltd [225] did. Therein the Plaintiff and her husband had employed a cleaner to attend their house one day per week for six hours. The Plaintiff and her husband had considered reducing the cleaner's attendance to six hours per fortnight but as a result of the Plaintiff's injury, the cleaner continued to provide cleaning services for six hours a week. Hoeben J held: "The evidence on this issue was all one way. The occupational therapists, the plaintiff and her husband gave evidence (which was not challenged) that whereas the employment of a cleaner for six hours per week before the accident was a matter of choice, it had now become a matter of necessity in that the plaintiff was simply unable to perform those heavy cleaning tasks following the accident. The relevant principle was best explained by Basten JA in Teuma & Anor v CP & PK Judd Pty Ltd [2007] NSWCA 166 at [94] - [95]: 'There are only two issues raised by a claim for the value of domestic services. The first is whether the need for such services to be provided by another was created by the accident; the second is to establish the commercial value of those services. In relation to the first question, the fact that such services were being provided, whether on a gratuitous or paid basis, prior to the accident, is beside the point. If the injured person requires assistance in carrying out the garbage and doing similar "heavy work" around the home, it does not matter whether she did that before the injury, whether if she did not it was done by a paid housekeeper, or was undertaken by her husband or other partner. This conclusion is to be derived from the joint judgment of Mason CJ, Toohey and McHugh JJ in Van Gervan v Fenton (1992) HCA 54, (1992) 175 CLR 327 at 338 …'" [226]
12. The Plaintiff has a range of vocational and social commitments. She hitherto has resided in shared leased accommodation. She does not have people able to assist her with domestic chores. There is no evidence that these arrangements will change. I am satisfied that prior to the accident the Plaintiff engaged cleaners even though she was able to carry out domestic duties herself. Prior to the accident two cleaners attended per fortnight for two hours. The evidence does not support the hours of such assistance changing since the accident although in around March 2015 a new cleaner who works by herself was engaged for three to four hours a fortnight. The Plaintiff concedes she is now able to carry out some lighter duties as described in her evidence although for the heavier tasks are those which she requires paid assistance. In submissions the Plaintiff claimed $30 per week of the past based on the rates charged to her by her current service at $60 per fortnight. However this cost is shared with her flat mate so the actual cost to her is $15 per week. Further that rate was less than the rate previously paid for such services which was $20 per week. In my view it is reasonable to allow the past at $20 from the date of the accident to 25 October 2011 to 1 March 2015 (175 weeks) being $3500 and thereafter at $15 per week for 57 weeks being $855. Accordingly past care is allowed at $4355. Future care for 53 years using the 5 per cent multiplier comes to $14,833.50.

Interest

1. In the statement of claim, interest is claimed in relation to paragraph [3] of the relief claim. In written submissions dated 6 November 2015, a handwritten entry has been added, asserting pre-judgment interest under s 137 of the 1999 Act. [227] In oral submissions, counsel for the Plaintiff stated as follows:- "One more thing to your Honour, I want to show your Honour some of the documents in a minute, but we do make a claim for interest under s 137. Your Honour sees it scribbled at the last page of our written submissions. We ask for interest pursuant to s 137, pre judgment interest, pursuant to s 137 of the Motor Accidents Act. And we say there's no disentitling aspect to it. We have not received any offer of settlement from the other side that would warrant to us to be stopped or castigated. Therefore, it's open. It's also pleaded in the statement of claim, out of that, your Honour, at the last minute." [228]
2. Leave was granted to the Defendant to respond to this submission within seven days by consent. [229] The argument raised by the Defendant is that the issue of liability was so contentious that it was reasonable for it not to have made an offer. The Plaintiff in reply contended that this argument ought to be rejected as the Defendant offered no evidence on the question of liability and the cross-examination of Mr McDonald essentially left the evidence as to liability unchanged. [230] Further, the Defendant contended that the claim for interest was "belated" as the written submissions were the first particularisation of the claim.
3. The Defendant next contended that no interest should be awarded as the Plaintiff's solicitors did not respond to the Defendant's request of 18 June 2015 for economic loss particulars, including the Plaintiff's 2013 and 2014 tax material until 18 June 2015. Furthermore, it was not until 22 June 2015 that the Plaintiff's solicitors served a Further Amended Statement of Particulars and this document did not include a claim for interest. The Defendant asserted that any interest to be awarded required the Defendant to have an opportunity to properly assess the Plaintiff's claim and, accordingly, no interest should be awarded until at least two months from either 18 or 22 August 2015. The Defendant contended that the disentitlement provisions listed in s 137(4)(a) of the 1999 Act are not applicable.
4. In Fitzgerald v Dansey, [231] Sperling J (with whom Powell JA agreed) stated in relation to the previous s 73(4) of the Motor Accidents Act 1988 (NSW) that the onus was on the Plaintiff to satisfy the Court of the matters outlined in that section. Sperling J stated:- "Under the relevant statutory provisions, there is no entitlement to interest unless the plaintiff satisfies the court of four matters: (1) that the defendant has been provided with information enabling a proper assessment of the claim to be made; (2) that the defendant has had a reasonable opportunity to make an offer; (3) that it would be appropriate for the defendant to have made an offer; and (4) that the defendant has not made an offer. Of these, conditions (1), (2), and (4) were satisfied in this case. The trial judge held that condition (3) was not. As at the trial and now on appeal, the ground advanced by the plaintiff for satisfying condition (3) is that the defendant should have recognised that the plaintiff was entitled to recover damages and it was, accordingly, appropriate for the defendant to have made an offer, taking into account the prospect of the damages being reduced for contributory negligence if that represented the defendant's view. No other consideration was advanced at the trial or on appeal as a basis for the argument that it was appropriate for the defendant to have made an offer (which is not to suggest, one way or the other, that any other argument was or is now available). In my view, the trial judge was right to reject the plaintiff's argument that it was appropriate for the defendant to have made an offer on the ground that was advanced. That is because there was, in my view, no reasonable requirement for the defendant to accept, before trial, that the plaintiff was entitled to recover damages. As I have said earlier in this judgment, it is my own view that it was reasonably open to the trial judge to have found, on the evidence, that the only real cause of the accident was the plaintiff's own negligence. The defendant was, accordingly, as I see it, not reasonably required to accept that the plaintiff was entitled to recover. It is unnecessary, in these circumstances, to determine, for the purposes of this case, the meaning and ambit of the concept of appropriateness incorporated in the legislation. The only argument advanced fails within its own ambit, without this court having to decide whether the argument would have satisfied the condition, properly construed, had it been made out." [232]
5. That decision was followed in Najdovski v Crnojovic (No 2) [233] in relation to a claim for interest pursuant to s 137 of the 1999 Act. In that case, Basten JA (with whom Allsop P and Windeyer J agreed) referred to Fitzgerald v Dansey, and stated:- "It may also be noted that the trial judge, in a manner affirmed by the majority in this Court, held that it was necessary for the plaintiff to satisfy the Court on the balance of probabilities of each of the various matters set out in sub-par (a)(i), including that it 'would have been appropriate' for the defendant to have made an offer: at [101]-[102]. It is not entirely clear what is meant by the statement that the plaintiff must demonstrate on the balance of probabilities that it would be appropriate for the defendant to make an offer. In any event, neither sub-pars (i) nor (ii) were invoked in the present case and it is not a matter which need be taken further. Contrary to the respondent's submissions, Fitzgerald v Dansey did not deal with any question of what was "unreasonable", being the criterion applicable to the offer. However, the contention sought to be made is presumably by way of analogy: if because of the likelihood of success it would have been appropriate not to make an offer, the making of an offer should not be deemed to be unreasonable because, for similar reasons, it was a low offer." [234]
6. In my view, it is not for the Defendant to make the contentions as to the Plaintiff's disentitlement under s 137(4) of the 1999 Act; rather it is a matter for the Plaintiff who asserts a right to interest to satisfy the Court that the preconditions of the section are met. No evidence has been presented to this effect nor has any argument been advanced as to why it would be appropriate for interest to be awarded under s 137(4)(a)(i). The claim itself was not particularised until final submissions. In the circumstances, I decline to make an award for interest.

Summary

1. The summary of the damages I award is as follows: Past economic loss $194,040 Loss of past superannuation $14,230 Fox v Wood $14,047 Future economic loss $200,000 Loss of future superannuation $22,000 Past out of pocket expenses $32,745.96 Future out of pocket expenses $6,434 Past domestic assistance $4,344 Future domestic assistance $14,834 Total amount awarded $502,674.96

ORDERS

1. For these reasons, I make the following orders: 1. Verdict and judgment for the Plaintiff in the sum of $502,675; 2. Subject to any application to my Associate to relist the matter for any further or other order as to costs, the Defendant is to pay the Plaintiff's costs; and 3. Exhibits are to be retained for 28 days.

Endnotes

1. Hereinafter referred to as "the 1999 Act"
2. T 6.21
3. Statement of Claim at [14]
4. Defence at [5]
5. T 69.21
6. T 13.28 - .31
7. T 13.34 - .35
8. T 13.38
9. T 13.46 - .47
10. T 15.3
11. T 15.19
12. T 16.10
13. T 16.16 - .17
14. See Exhibit C, p 5 of COPS entry; T 16.39
15. T 19.45
16. T 18.37
17. T 20.40. The transcribed answer is "Yeah, good [sic] be."
18. T 152.5 - .9
19. T 152.19
20. Exhibit C, p 3 of COPS entry
21. Exhibit C, pp 5 - 6 of COPS entry, and pp 102 - 104 of Constable Faith's notebook.
22. Exhibit A, p 213
23. Exhibit A, pp 280 - 288
24. Exhibit A, p 259 at [3.1]
25. Exhibit A, p 261 at [3.12]
26. Exhibit A, p 262 at [3.14]
27. Exhibit A, p 270 at [5.13]
28. T 33.22 - 34.9
29. T 44.27 - 45.23
30. T 50.45 - 51.14
31. T 56.5 - 57.7
32. T 58.8 - 59.13
33. T 59.31 - .32
34. T 59.36 - .43
35. T 60.2 - .5
36. T 60.35 - .43
37. T 62.3 - .4
38. Exhibit G, pp 1 - 2
39. Exhibit A, p 259 at [3.4]
40. Exhibit A, p 264 at [3.16]
41. Exhibit A, p 264 at [3.18]
42. Exhibit A, p 265 at [4.1]
43. Exhibit A, pp 266 - 7 at [4.5] - [4.10]
44. T 51.33
45. T 51.41 - .42
46. T 51.44 - .46
47. Exhibit A, p 268 at [5.2] - [5.5]
48. T 61.40 - 62.10
49. Defendant's Written Submissions at [31]
50. Exhibit A, p 268 at [5.2]
51. T 62.49 - 63.16
52. See T 44.14 - 66.29 for Mr McDonald's cross-examination
53. Defendant's Written Submission at [8]
54. Luxton v Vines (1962) 85 CLR 352, 358 (Dixon, Fullagar and Kitto JJ)
55. (2000) 49 NSWLR 262 at [84] - [88]
56. (2000) 49 NSWLR 262
57. [2014] NSWCA 424 (9 December 2014)
58. Fuller-Lyons v New South Wales [2015] HCA 31
59. [2014] HCA 52
60. [2014] HCA 52 at [89] - [90] (Gageler J)
61. Hereinafter the "2002 Act"
62. Road Rules 2008 (NSW) r 69(1). The Rules were repealed by Road Rules 2014 (NSW) r 353 - 2 with effect from 1 December 2014.
63. T 169.28 and 170.17
64. T 169.5 and
65. T 163.48
66. Exhibit A, p 44
67. Exhibit A, p 46
68. Exhibit A, pp 101 - 104
69. Exhibit A, p 117
70. Exhibit A, p 116
71. Exhibit A, p 109 - 114
72. Exhibit A, p 110
73. Exhibit A, p 174
74. Exhibit A, p 143
75. Exhibit A, p 200
76. Exhibit A, p 143
77. Exhibit A, p 150
78. Exhibit A, p 153
79. Ibid
80. Exhibit A, p 154
81. Exhibit A, p 155
82. Exhibit A, p 185
83. Exhibit A, p 202
84. Exhibit A, p 201
85. Exhibit A, p 202
86. Exhibit A, p 158
87. Exhibit A, p 179
88. Exhibit A, pp 159 - 166
89. Exhibit A, p 166
90. Exhibit 1, pp 1 - 7
91. Exhibit 1, p 3
92. Exhibit 1, p 3
93. Exhibit 1, p 2
94. Exhibit 1, p 2
95. Exhibit 1, pp 8 - 10
96. Exhibit 1, p 9
97. Exhibit 1, p 10
98. Exhibit 1, p 11 - 15
99. Exhibit 1, p 13
100. Exhibit 1, p14
101. Exhibit 1, p 15
102. T 79.11
103. T 79.23
104. T 75.32 - .41
105. T 83.10 - .18
106. Hereinafter referred to as "TOM"
107. T 86.2 - .13
108. T 80.14 - .18
109. T 80.24 - .29
110. T 80.41 - 81.1
111. T 87.5
112. T 88.13
113. T 91.15 - .16
114. T 112.39 - .42
115. T 111.14 - .15
116. T 111.23 - .26
117. T 111.47
118. T 111.26 - .27
119. T 90.23 - .26
120. T 90.44 - 91.1
121. T 91.29 - .30
122. T 91.38 - .40
123. T 104.46 - 105.11
124. T101.33 - .40
125. T102.14 - .15
126. T 84.5 - .6
127. T108.14 - .45
128. T 84.5 - .6
129. T 110.28 - .32
130. Exhibit 4
131. T 107.14 - .17
132. T 107.39 - .41
133. T 108.10 - .13
134. T 93.6 - .7
135. T 93.24 - .25
136. T 122.17
137. T 122.30 - .38
138. T 122.41 - .42
139. T 123.15 - .18
140. T 124.3 - .6
141. T 125.6 - .9
142. T 123.36 - 124.7
143. T 125.12
144. T 125.2
145. T 124.47 - .48
146. T 124.13
147. T 126.10 - .14
148. T 128.38
149. T 130.19 - .20
150. T 130.36
151. T 130.43 - .44
152. T 132.3 - .10
153. T 135.10 - .16
154. T 133.26 - .28
155. T 133.20 - .21
156. T 133.5 - .6, and 133.23 - .24
157. T 134.6 - .7
158. T 135.39
159. T 135.43
160. T 135.50 - 136.1
161. T 138.27
162. T 139.13
163. T 139.17
164. T 136.24 - .28
165. T 136.33 - .38
166. T 137.36
167. T 140.4 - .12
168. T 137.17 - .39
169. T 137.44 - 138.1
170. T 138.1 - .4
171. T 154.50
172. T 155.3 - .21
173. T 165.39 - .40 and Exhibit 5
174. T 117.7 - .9
175. T 104.32 - 34
176. T 174.49 - 175.36
177. Exhibit 5
178. Defendant's Written Submissions at [67]; and Defendant's Schedule of Damages
179. Exhibit 1, p 49 at [41]
180. Exhibit 1, p 51 at [45] - [46]
181. T 165.4 - .6
182. Exhibit A, p 451 at [8.2]
183. T 113.20 - 114.50
184. Exhibit A, p 451 at [8.3]
185. This is the figure derived in Schedule B not $2,734 set out in Table 3. See Exhibit A, pp 450 and 457
186. Exhibit A, p 450 at [6.16].Ms Lee noted in Exhibit 1, p 86 at [25] that Mr Lee's report inaccurately refers to $1380 instead of $1300.
187. Hereinafter referred to as "PAYG"
188. Exhibit A, p 450 at [6.17]
189. Exhibit J
190. Exhibit 1, p 91
191. See above n 186
192. Exhibit A, p 347 at [12.5]
193. [2011] NSWCA 121 (17 May 2011) (Basten JA, Campbell JA and Rothman J)
194. Exhibit A, p 153
195. Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 (27 May 2008) [84] (McColl JA with whom Mason P and Beazley JA agreed)
196. Plaintiff's submission at [7.1] and Defendant's Schedule of Damages
197. T 93.32 - .40
198. T 94.5 - .9
199. T 93.49 - 94.1
200. T 94.13 - .35
201. T 102.28
202. T 102.32
203. T 102.46 - .47
204. Exhibit A, p 165
205. Exhibit A, p 179
206. Exhibit 1, p 14
207. Exhibit 1, p 10
208. See Plaintiff's Written Submissions at [8.2] - [8.4]
209. Exhibit A, p 179
210. Plaintiff's Written Submissions at [8.5]
211. T 96.28
212. T 97.21 - .25
213. T 98.21
214. T 142.37 - .41
215. T 144.18
216. T 144.46 - 145.2
217. T 145.44
218. T 118.28 - .35
219. Exhibit A, p 179
220. Exhibit 1, pp 10 and 15
221. Exhibit A, p 153
222. [2013] NSWCA 443 (18 December 2013) [93] (Basten JA with whom McColl JA agreed)
223. Exhibit A, p 165
224. Van Gervon v Fenton (1992) 175 CLR 327, 333
225. [2010] NSWSC 1130 (11 October 2010). This decision was appealed, but not as to this point: see Loose Fit Pty Ltd v Marshbaum [2011] NSWCA 372
226. [2010] NSWSC 1130 (11 October 2010) [140] (Hoeben J)
227. See Plaintiff's Written Submissions, p 19
228. T 173.3 - .13
229. T 175.43 - .45
230. See Plaintiff's Reply Submissions on Interest at [5] - [10]
231. [2001] NSWCA 339 (24 October 2001)
232. [2001] NSWCA 339 (24 October 2001) [102] - [107] (Sperling J)
233. [2008] NSWCA 281(30 October 2008)
234. [2008] NSWCA 281(30 October 2008) [25] (Basten JA with whom Allsop P and Windeyer J agreed)

Amendments 04 April 2016 - 1. In para [33], second last sentence, the word "he" is inserted after the words "Mr McDonald"; 2. In para [43], in the first and second sentences, the word "injury" is replaced by the word "harm"; 3. In para [130], in the final sentence, the word "osteoarthritic" is replaced by the word "arthritic"; 4. In para [147], in the first sentence, the words "tax and" are removed; and 5. In para [184], in the final sentence, the word "Plaintiff" is replaced by the word "Defendant" 11 April 2016 - 6. In para [144], in the final sentence, the words "Mr Lee" are replaced with "Ms Lindsay"; and 7. In para [145], in the fourth sentence, the word "Lee" is replaced with "Lindsay." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2016