Boateng v Dharamdas

A 62; 223 CLR 422 Wallace v Kam [2013] HCA 19; 250 CLR 375 Warth v Lafsky [2014] NSWCA 94 Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 Category: Principal judgment Parties: Kofi Boateng (Appellant) Martin Dharamdas (Respondent) Representation: Counsel: K Rewell SC (Appellant) D Hooke SC / L Morgan (Respondent)

Solicitors: Moray & Agnew (Appellant) Turner Freeman (Respondent) File Number(s): 2015/271567 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: Unreported Date of Decision: 1 September 2015 Before: Sorby DCJ File Number(s): 2012/332645

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

1. GLEESON JA: On 31 January 2011, the respondent, Mr Martin Dharamdas, was struck by a taxi motor vehicle driven by the appellant, Mr Kofi Boateng, while crossing Potter Street, Waterloo. The respondent alleged that, as a result of the accident, he suffered injuries, including to his right shoulder, right wrist, low back, both knees and left thumb. The respondent commenced proceedings in the District Court seeking damages for his injuries. He was successful in that Court and obtained a judgment for $692,595.72: Dharamdas v Boateng (NSW District Court, Sorby DCJ, 1 September 2015, unreported).
2. The primary judge found that the appellant driver was negligent in failing to keep a proper lookout and that his negligence was causative of the respondent's harm, and found that the damages for which the appellant was liable should be reduced by 40 per cent to reflect the respondent's contributory negligence. His Honour assessed damages (before any reduction) of $1,154,326.24.
3. The appellant has appealed challenging the findings that he was negligent and that his negligence was a cause of the respondent's harm. Alternatively, the appellant contended that the assessment of the respondent's contributory negligence is manifestly inadequate and should be assessed at 80 per cent. The appellant also challenged the assessment of damages under all heads.
4. The respondent has cross-appealed, challenging his Honour's finding as to the point of impact of the collision in Potter Street, and the finding that he was guilty of contributory negligence. Alternatively, the assessment of the respondent's contributory negligence is challenged as being excessive. The respondent contended that it should be no more than 10 per cent.
5. An understanding of the liability issues is assisted by an outline of the circumstances of the accident.

The respondent

1. Early on 31 January 2011, at about 6 am, the respondent was walking from Redfern station to his place of employment at HPM Industries in Lachlan Street, Waterloo. It was his daily practice to take the same path. This was walking south down the eastern side of Bourke Street, until he reached the "T" intersection with Potter Street, where he turned left. He then proceeded east on Potter Street along the northern footpath before cutting across Potter Street to the footpath on the southern side and proceeding to his workplace.
2. At the time of the accident there were no dividing lane markings on Potter Street. There are two trees on the edge of the northern footpath on Potter Street. The experts measured the distance from the eastern kerb of Bourke Street to the first tree as 12 metres and to the second tree as 29.2 metres.
3. There was a dispute at trial as to two matters concerning the point of impact of the collision in Potter Street. The first was how far along Potter Street the respondent walked before cutting across the roadway to the footpath on the other side. This was relevant to how long the appellant had to observe the respondent in Potter Street before the collision. The second matter concerned how far the respondent had travelled across Potter Street from the northern kerb before the collision. This was relevant to how long the respondent was on the road and the time available to the appellant, acting reasonably, to avoid the collision.
4. The respondent initially said in cross-examination that on the day of the accident, he saw a red light preventing pedestrians crossing Potter Street at the intersection. He then qualified his answer, saying he was "not 100% sure", and that he may not have paid much attention to the pedestrian lights because he knew where he was going to walk, as he followed the same route each day. He said that he turned left (at Potter Street) and walked east along the northern footpath of Potter Street until he came to the second tree from the intersection and, as was his habit, he "swung around" the second tree to the edge of the footpath before stopping facing the road, looking to his right, then to his left then back to his right to check for traffic and that it was safe to cross the road. He did not see any vehicles approaching in either direction. He walked straight across the road; he did not cross the road at an angle towards his destination. When he came to the middle he looked to his left, because that was the path he was going to walk and while in the middle of the road the vehicle hit him. He estimated that he would have walked "at least 5 metres" on the road before he was hit.

The appellant

1. The appellant had been a taxi driver for 16 years. On the morning of the accident, he was driving without any passenger along Bourke Street towards the City heading back from the airport. The appellant did not give evidence at the trial due to his medical condition, however, three statements by the appellant were admitted into evidence.
2. The first was a record of the appellant's statements made to Constable Cicek during an interview immediately following the accident. The appellant's signed police statement (recorded at 7.50am) included the following: I was travelling north along Bourke Street in lane two of a two lane divided road. I came to the T-intersection of Bourke and Potter, there were traffic lights at the intersection. I was planning on turning right into Potter Street from Bourke Street. The lights were green, I was waiting for a clear way from oncoming traffic. I turned right when oncoming traffic was clear. I turned right into Potter Street, all of a sudden there was someone on the roadway, the car hit him. All I saw was that this male person was on my bonnet. I didn't see him, he just come out in front of my car. The first time I noticed him was when he was on the bonnet.
3. The appellant's police statement continued with the following questions and answers: Q. When did you first notice him? A. When he was on the bonnet. Q. What did you do to avoid the accident collision? A. I put the brakes on. Q. How fast were you doing the turn? A. It's very hard to tell, 20-30 k's. There was a big gap on Bourke Street from oncoming cars before I turned right onto Potter Street.
4. In a subsequent statement made on 20 September 2011 to an investigator retained by the appellant's CTP insurer, the appellant said that he had stopped at the intersection with Potter Street, at the traffic light, as it was red. When the light went green, he turned right into Potter Street and the next that he saw was someone on top of the bonnet. He said he did not know where he came from. He said he did not see anyone else crossing the road before the impact and estimated his speed at between 20 and 30 km/h at the time of impact. He said that he collided with the respondent "about 12 metres from the corner of Bourke and Potter Streets".
5. In a third statement dated 4 November 2014, the appellant said that after striking the respondent he was able to bring his vehicle to a halt within a short distance of the point of impact and that he did not move his vehicle prior to the arrival of the police. He said that he believed that the police photographs (which were annexed to his statement and are described below) depicted his vehicle in the position in which he brought it to a halt immediately following the collision.

The police photographs

1. A number of photographs taken by the police at the scene of the accident were in evidence at trial. One photograph showed the appellant's taxi just beyond the first tree, near the 50 kph speed sign on the northern footpath of Potter Street. Another photograph showed the appellant's taxi at what seems to be at least one car length from the northern kerb of Potter Street, facing slightly towards the middle of the road. In the same photograph, and behind the appellant's taxi, two police wagons parked side by side may be seen facing north in Potter Street, blocking the pedestrian crossing.
2. There was a dispute at trial as to whether the appellant moved his taxi after the collision and before the police arrived at the accident site and took the photographs. His Honour resolved this dispute by accepting the evidence of two council workers, who, as witnesses, said the taxi was not moved before the ambulance left with the respondent.
3. Accepting the limitations on the use to be made of such photographs as these, particularly on appeal (Pledge v Roads and Traffic Authority (2004) 205 ALR 56; Blacktown City Council v Hocking [2008] NSWCA 144; Aust Torts Rep 81-956 at [170]; Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298 at [25]), the police photographs provide contemporaneous evidence that the point of impact of the collision was adjacent to the first tree on the northern side of Potter Street, as the primary judge found.

Constable Cicek

1. Constable Cicek interviewed the respondent at St Vincent's Hospital shortly following the accident. He recorded in his notebook the respondent saying: I was crossing the road, on Potter Street, on the northern kerb. I was on the opposite of the big door to the Toyota shop. I looked both ways and there was no car. I made a move to go to the other side (southern kerb), I was on the middle of the road and suddenly I saw this taxi coming and … first the taxi bonnet hit me then I fell straight on the road on my tummy.
2. Constable Cicek also recorded the respondent later saying: I waited for the light. I moved ahead of the lights and walked on the pavement. I walked 10 metres down the pavement. I walked onto the road, I look both sides, I found there was no car coming. I was nearly on the middle of the road and this car came and hit me. I didn't see the car.
3. The COPS event entry for the collision recorded the conditions at the time of the accident as "fine"; natural light as "daylight"; the speed zone for the area as 50 kph; and that the appellant's vehicle was travelling east at a pre-crash speed of 20 kph. Damage codes to the appellant's vehicle were recorded as "front". The detailed crash narrative included the following: … Upon coming to the T intersection of Bourke and Potter Streets the driver of Vehicle Two [the appellant] indicated to turn right into Potter Street Waterloo 2017 on a green signal. … Upon indicating to turn right on a green signal the driver of vehicle two came to a complete stop, waiting for a break from oncoming traffic. Upon a break in oncoming traffic the driver of vehicle two negotiated a right hand turn into Potter Street. Upon entering Potter Street a pedestrian walked onto the roadway into Driver Two's line of travel causing a collision. The front end of Vehicle Two came into contact with the pedestrian, causing him to roll onto the bonnet and onto the roadway where he landed face down. The point of impact was approximately 10 meters (sic) from the intersection of Bourke and Potter Street and four meters (sic) from the northern curb (sic) of Potter Street. The point at which the pedestrian crossed the road was at an undesignated area, approximately 10 meters (sic) east of a set of designated lights for the purposes of crossing the road safely. … Traffic conditions were medium. Weather fine. Sealed bitumen. Drugs alcohol not a factor. Particulars exchanged. The incident was seen by two independent witnesses both stated [sic] that the pedestrian walked into the path of the vehicle without looking. … [Emphasis added]

The council workers

1. Two council workers, Mr Maximus Coelho and Mr Marco Konjevic, were working in Potter Street on cleaning duties at the time of the accident. They were sweeping the gutter and street, and removing dumps. They each gave evidence that the appellant's vehicle came to a stop after hitting the respondent in the vicinity of the first tree in Potter Street.
2. Mr Coelho first saw the respondent on the northern footpath of Potter Street, walking east. He also saw the appellant's taxi waiting at the traffic lights. He crossed at the pedestrian lights to the southern side of Potter Street and continued with his work. He heard a screech and saw the collision. He said that the taxi stopped "straight away" and he saw the respondent on the road in front of the taxi. Mr Coelho estimated that the respondent had walked 1 to 1.5 metres onto the road. He marked a photograph, which was tendered in evidence, indicating where he observed the appellant's taxi came to a stop. His Honour noted that this put the appellant's taxi close to the first tree and observed that Mr Coelho was not challenged in cross-examination on that evidence. The appellant complained (justifiably) that this was an error by his Honour, and pointed to cross-examination of Mr Coelho suggesting that the accident occurred beside the second tree.
3. Mr Coelho gave evidence that the taxi stopped just in front of the first tree and did not move until the time the ambulance left the accident site. He was challenged on this point in cross-examination but adhered to his evidence.
4. Mr Konjovic was on the northern side of Potter Street when he first saw the respondent standing near a "No Standing" sign, near the first tree in Potter Street. He did not see the collision, but heard a "short screech" and "a bit of a thud" which caused him to turn around. He said that when the respondent fell to the roadway he was about a metre from the appellant's taxi and about a metre from the northern kerb of Potter Street. In his police statement, Mr Konjovic had said that the respondent was lying "near the middle of the road" directly in front of the taxi. In cross-examination, he clarified that he meant that the respondent was in "the middle of the lane", that is, the eastbound lane in Potter Street. Mr Konjovic also marked a photograph indicating the position where the appellant's taxi had stopped was near the first tree from the intersection of Bourke Street, not the second tree.

The expert evidence

1. Both parties called expert evidence from civil engineers with expertise in accident reconstruction. Mr Glen Urquhart provided a written report in the appellant's case and was cross-examined. Mr Grant Johnston provided a written report in the respondent's case. He was not cross-examined. Unhelpfully, the experts gave opinions based on differing instructions.

Mr Urquhart

1. For the purposes of his report, Mr Urquhart was instructed to assume a number of matters, including that: the appellant did not see the respondent until he was on top of the bonnet; the appellant did not have an opportunity to brake before the collision; and that the taxi stopped within 10 metres or so of the collision. As to the last matter, the actual assumption made by Mr Urquhart was that the taxi came to rest 7.5 metres east of the point of impact - this being the average post impact distance based on the respondent's diagram in his insurance claim form and the maximum distance of 10 metres he was instructed to assume. (This assumption was inconsistent with the evidence of Mr Coelho which was that the taxi stopped just in front of the first tree: see [26] above).
2. Mr Urquhart assumed that the point of impact of the collision was 10 metres east of the pedestrian crossing at the intersection of Bourke Street and Potter Street and that the respondent was in the centre of the eastbound lane when the collision occurred. Mr Urquhart estimated this to be 3.1 metres from the northern kerb of Potter Street. He noted the differing estimates of the point of impact from the northern kerb ranged from 1.5 metres (Mr Coelho) to 4 metres (COPS entry) and analysed the respondent's range of motion. He assessed the appellant's likely impact speed as between 20 and 30 kph.
3. Mr Urquhart estimated that the distance travelled by the appellant once he commenced his right-hand turn into Potter Street was about 25 metres. This estimate was based on an assumption that the appellant had proceeded into the intersection with Potter Street when the lights turned green where he waited for a break in southbound traffic (in Bourke Street) and then turned right into Potter Street. As is evident from the appellant's police statement (set out at [14] above), the appellant did not indicate to the police that he had entered the intersection with Potter Street (rather than remained at the traffic lights) before making the right turn. Nor is this assumption by Mr Urquhart consistent with the appellant's subsequent statement to the CTP insurer: see [16] above.
4. Mr Urquhart expressed the view that the appellant accelerated at a normal rate, or possibly more gently, taking into account his opinion of the likely impact speed as between 20 and 30 kph. He considered that this was consistent with the appellant's police statement that there was "a big gap on Bourke Street from oncoming cars": see [15] above. Accordingly, there was no requirement, in Mr Urquhart's view, for the appellant to accelerate quickly to beat oncoming traffic and the appellant was driving at an appropriate speed in the circumstances, and at about half the speed limit.

Mr Johnston

1. Mr Johnston was initially asked to assume that the respondent was crossing Potter Street approximately 10 metres from the intersection with Bourke Street and that the point of impact was approximately 4 metres from the northern kerb of Potter Street. The first of those assumptions was superseded by instructions given to Mr Johnston by the respondent when they conducted a view of the scene of the accident for the purpose of preparing his report. The respondent instructed Mr Johnston that he crossed Potter Street opposite the "large door" to the Toyota workshop. This was about 25 metres beyond the eastern edge of the pedestrian crossing or 29.2 metres from the eastern kerb of Bourke Street.
2. Nonetheless and importantly, Mr Johnston expressed the opinion that the distance from the intersection with Bourke Street did not matter to avoidance opportunities "to any substantial degree" and "it is the distance the pedestrian walks after entering the roadway that is the key determinant of the avoidance options". Mr Johnston accepted that a speed of 20 - 30 kph at the point of impact, as estimated by Mr Urquhart, was not unreasonable but expressed the view that such speed suggested no response at all by the appellant prior to impact.
3. Mr Johnston disagreed that the crossing distance from the northern kerb of Potter Street to the point of impact was about 1.5 - 4 metres. He estimated the crossing distance to the point of impact (which he assumed was in the middle of the roadway) was 4.0 - 5.2 metres. This equated to a crossing time of about 3.2 - 4.2 seconds, which he considered was significantly longer than the 2.5 seconds estimated by Mr Urquhart. Mr Johnston considered that the range of perceptions/response times estimated by Mr Urquhart (1.8 to 2.4 seconds) was too high. In his opinion, the appropriate response time was either 1.2 (assuming impact at the first tree) or 1.4 seconds (assuming impact at the second tree) in Potter Street.
4. Mr Johnston disagreed with Mr Urquhart's opinion that it was likely that there was insufficient time available to the appellant to avoid the collision. Mr Johnston approached the prospect for collision avoidance by considering the distance the vehicle would have been from the point of impact at the time that the respondent stepped onto the roadway. Accepting the police estimate that the point of impact was 4 metres from the kerb of Potter Street, Mr Johnston agreed with Mr Urquhart's exposure time for the respondent, at an average walking pace, to be 3.2 seconds. For a vehicle travelling at 25 kph (7 metres per second), Mr Johnston estimated that this placed the appellant's vehicle about 22 metres from the point of impact when the respondent stepped onto the roadway. It is to be observed that Mr Urquhart estimated the distance travelled by the appellant once he commenced his right-hand turn to be about 25 metres, that distance being calculated from within the intersection, not back at the traffic lights in Bourke Street. Accordingly, Mr Johnston's estimate that the appellant's vehicle was about 22 metres from the point of impact when the respondent stepped onto the roadway, places the appellant's vehicle part way into the right-hand turn facing Potter Street.

Issues on Appeal - Liability

1. The issues on appeal with respect to liability may be conveniently grouped under the following headings: A. Point of impact of the collision - whether his Honour erred in finding that the point of impact of the collision between the appellant's taxi and the respondent was adjacent to the first tree at the intersection of Bourke and Potter Streets, Waterloo (cross-appeal ground 5). B. Whether his Honour erred in finding that the appellant driver was negligent (appeal grounds 1, 3, 4 and 5). C. Causation - whether his Honour erred in finding that the appellant's failure to keep a proper lookout was a cause of his collision with the respondent (appeal grounds 2, 6 - 9). D. Contributory negligence - whether his Honour's assessment was manifestly inadequate or manifestly excessive (appeal grounds 10 and 11, cross-appeal grounds 6 and 7).

A. Resolution of factual challenge concerning point of impact of the collision

The primary judge's findings on point of impact of the collision

1. His Honour found, contrary to the respondent's evidence, that the point of impact between the appellant's taxi and the respondent was adjacent to the first tree some 12 metres on the northern side of Potter Street from the "T" intersection with Bourke Street: at [13]. He considered that the respondent was mistaken in his recollection as to where he left the kerb at Potter Street. He found that when the respondent's reached the tree in Potter Street (which he determined to be the first tree), he touched the tree with his right hand, "swung round it", looked both ways, then stepped off the footpath onto the road: at [14]. The respondent contended that the point of impact was near the second tree from the intersection, about 28 metres from the intersection (cross-appeal, ground 5).
2. His Honour found, also contrary to the respondent's evidence, that the impact between the appellant's taxi and the respondent occurred in about the middle of the east-bound lane of Potter Street, not in the centre of Potter Street: at [21]. He considered that, in the circumstances and trauma of the collision, the respondent was again mistaken in his recollection of the exact part of Potter Street where he was struck by the appellant's taxi. While this finding is not challenged by the respondent in his cross-appeal, the respondent's submissions in this Court suggested that the collision occurred closer to the middle of the road. So much is consistent with the location of the appellant's vehicle shown in the contemporaneous police photographs.

Submissions

1. The respondent contended that the evidence "points overwhelmingly" to the point of impact being near the second tree from the intersection, about 28 metres from the Bourke Street intersection. The respondent pointed to the evidence given by the two council workers in cross-examination, to which, the respondent complained, his Honour failed to refer in his reasons.
2. The appellant sought to uphold his Honour's finding that the collision occurred adjacent to the first tree. The significance of this finding, it was argued, is that the appellant had very little time to observe the respondent on the road once his taxi turned east along Potter Street.

Determination

1. The evidence concerning the point of impact of the collision has been outlined above. The starting point is the objective evidence of two police photographs of the accident site. These support his Honour's finding that the point of impact of the collision was adjacent to the first tree on the northern kerb of Potter Street.
2. His Honour noted in his reasons (at [11]-[12]) the conflict in the evidence as to whether the appellant's taxi was moved prior to the arrival of the police. He referred to the appellant's evidence (in his witness statement) that he only moved his vehicle after the police told him that he could do so. His Honour observed that this conflict could not be resolved by an assessment of the witness's credibility as the appellant was unavailable to give evidence at the trial. His Honour resolved the conflict in the evidence by accepting the evidence of the two council workers who were independent witnesses: at [13].
3. As indicated above (at [26] and [28]), Mr Konjevic was not challenged on his evidence that he did not see the taxi reverse at any stage before the ambulance took the respondent away, and the challenge to Mr Coelho's evidence was limited to suggesting that he did not observe the taxi moving backwards to make room for the ambulance because he went back to doing his street sweeping work. Mr Coelho was firm in his evidence that he saw the respondent "go into the ambulance" and that the taxi was not moved. It was open to his Honour to accept the council workers' evidence in preference to the recollection of the respondent, which his Honour was entitled to treat as mistaken due to the circumstances and trauma of the collision, as he did with other aspects of the respondent's evidence concerning the point of impact of the collision.
4. There is another matter which supports the improbability that the appellant moved his taxi before the police arrived at the accident site and took photographs. One of the photographs shows the location of the taxi with the bonnet angled slightly towards the middle of Potter Street. Had the appellant reversed his taxi, it is improbable that he would have parked the taxi in the manner shown in the police photograph, rather than closer to the kerb of Potter Street.
5. In addition to the objective evidence contained in the police photographs, his Honour's finding as to the point of impact of the collision is supported by the following matters. First, the respondent's own contemporaneous police statement was that he "walked 10 metres down the pavement". This is consistent with his Honour's finding that the respondent crossed Potter Street at the first tree, not the second tree.

B. Whether the appellant was negligent in failing to keep a proper lookout

Primary judge's reasons

1. After referring to the elements of s 5B(1) of the Civil Liability Act 2002 (NSW) (Civil Liability Act), his Honour recorded the respondent's submission that a reasonable driver in the position of the appellant would have taken the precautions of having looked where he was going and proceeded at a slow speed: at [24]. His Honour noted that the appellant had acknowledged in his police statement that there was nothing blocking his view and in his second statement he recalled that, before turning into Potter Street, he observed the street cleaners: at [25].
2. His Honour accepted the respondent's evidence that when he reached the (first) tree he touched the tree with his right hand, "swung around it" (at [5] and [14]), looked both ways (right, left and right again) before stepping off the footpath onto the road. His Honour found that the appellant had a clear view into Potter Street as he was waiting to turn right at the intersection with Bourke Street and could have observed the respondent on the northern footpath, but did not: at [26].
3. His Honour found that a prudent driver in the position of the appellant should have been alert to the presence of the respondent on the edge of the footpath near the first tree as he turned his vehicle into Potter Street. He added that a prudent driver should also have been alerted to the possible presence of pedestrians at the intersection by the fact that there were lights and a traffic "button" to control pedestrians at the intersection: at [27].
4. His Honour found that the appellant did not see the respondent until the respondent landed on the bonnet of the taxi after impact with the appellant's vehicle: at [27]. He accepted the respondent's evidence, and that of the two council workers, that the appellant braked simultaneously with colliding with the respondent: at [28]. He found that if the appellant had been keeping a proper lookout he could have braked: at [27]. He concluded that the appellant was not keeping a proper lookout and was negligent: at [29].

Legal principles: driver's duty of care

1. Although there was no dispute as to the applicable principles, it is desirable to say something briefly on this topic before considering the challenge to his Honour's finding of negligence.
2. In Marien v Gardiner [2013] NSWCA 396; 66 MVR 1, Meagher JA (Macfarlan and Emmett JJA agreeing) summarised the principles concerning the duty of care a driver owes to other road users, and those relating to breach of duty by reference to s 5B of the Civil Liability Act. This summary was affirmed in Warth v Lafsky [2014] NSWCA 94 at [55] (McColl JA, Preston CJ of LEC and Tobias AJA agreeing) and Johnston v Stock [2014] NSWCA 147 at [26] (Barrett JA, Meagher and Ward JJA agreeing). In short, the driver of a motor vehicle owes a duty of care to other road users, including pedestrians, to take reasonable care for their safety having regard to all of the circumstances with which the driver is confronted: Marien v Gardiner at [33].
3. The question of whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of a response to any foreseeable risks of injury or sources of danger to other road users. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: Civil Liability Act s 5B(1).
4. Meagher JA continued in Marien v Gardiner (at [35] - [37]) as follows: [35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path". [36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle. [37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.

Application of principles to the facts

1. No argument was directed by the appellant to whether the risk of harm to a pedestrian crossing Potter Street near the intersection of Bourke Street was foreseeable and not insignificant: Civil Liability Act, s 5B(1)(a) and (b). The focus of the appellant's attack on the finding of negligence was on the issue raised by s 5B(1)(c) - what a reasonable person in his position would have done by way of response to any foreseeable risk to harm to another road user, including pedestrians: Marien v Gardiner at [40].
2. The short answer to the "reasonable precautions" question is that there is no challenge to his Honour's finding that the appellant did not keep a proper lookout. The appellant did not see the respondent until he was on the bonnet of the taxi. The appellant's complaint was directed to the nature of the lookout his Honour found should have been taken. This complaint is misdirected. The context of his Honour's observation (at [27]) that "[the appellant] did not observe the [respondent], notwithstanding that he was a taxi driver and presumably keeping an eye out for potential fares", did not detract from the finding that a reasonable driver in his position should have been alerted to the presence of the respondent on the edge of the footpath near the first tree as he made the right turn into Potter Street. This conclusion followed from the nature of the intersection, including lights and a traffic "button", the range of visibility available to the appellant taxi driver, a professional motorist, and the unobstructed view of Potter Street available from the appellant's position once he entered the intersection when making the right turn, if he was keeping a proper lookout.
3. In writing, the appellant argued that once the respondent ignored the pedestrian crossing and turned left into Potter Street, a prudent driver in the appellant's position could not reasonably have expected the respondent intended to cross Potter Street, much less anticipate where such a crossing may have been attempted. This submission seemed to be directed to the probability that harm would occur if care were not taken: Civil Liability Act, s 5B(2)(a).
4. The difficulty with this submission is that the appellant was required to exercise quite a high degree of vigilance in the presence of oncoming traffic and in the vicinity of the Potter Street intersection: Turkmani v Visvalingam at [28]. The appellant was waiting at the traffic lights for a gap in the oncoming traffic in Bourke Street to turn right into Potter Street. That the respondent had not used the pedestrian crossing did not exclude the possibility of him crossing Potter Street a short distance from the pedestrian crossing. Further and importantly, as his Honour found, the appellant should have been keeping a lookout for persons on the roadway, having regard to his observation of the two council workers in Potter Street who were cleaning the gutters.

The primary judge's reasons

1. Having noted that the issue of causation is to be determined in accordance with s 5D of the Civil Liability Act, his Honour's reasons were relatively brief. He found that factual causation was satisfied because of the appellant's failure to keep a proper lookout in the circumstances where he had time whilst waiting to turn into Potter Street to observe the surrounding circumstances, including the lights governing pedestrians and the presence of two council workers in Potter Street: at [31].
2. His Honour further found that what he described as legal causation was satisfied on two bases. One was that the appellant "told Constable Cicek at the scene that he could have braked to avoid the collision". The other was that, in the circumstances of crossing over a pedestrian crossing into a street where two persons were observed to be on the edge of Potter Street (the council workers), the appellant should have entered Potter Street, either on a green arrow or during a suitable gap in the southbound traffic on Bourke Street, at a speed slower than the appellant's estimate of 20-30 km/h: at [32].

Legal principles: causation

1. Section 5D(1) of the Civil Liability Act provides that a determination that negligence caused particular harm comprises two elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
2. There is no issue in the present case as to the scope of liability question. The question is whether it was open to the primary judge to find that the appellant's failure to keep a proper lookout and failure to make the right-hand turn at a slower speed were necessary conditions of the respondent's harm in the sense that the harm to the respondent would not have occurred but for the appellant's conduct. The appellant contends that even if he had kept a proper lookout, he would have hit the respondent because he had insufficient response time to avoid a collision. The appellant also challenged the implicit finding that he was travelling at an excessive speed.
3. The determination of "factual causation" in accordance with s 5D(1)(a) of the Civil Liability Act "is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E": Wallace v Kam [2013] HCA 19; 250 CLR 375 (Wallace v Kam) at [14]. It involves nothing more or less than the application of a "but for" test of causation: Wallace v Kam at [16].
4. In Strong v Woolworths [2012] HCA 5; 246 CLR 182 at [32] the plurality said that "proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred." The enquiry into the causes of an accident is wholly retrospective, unlike the issues of duty of care and breach which are forward looking: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [124] (Hayne J); Wallace v Kam at [26].

Submissions

1. The argument on appeal focused on two matters. One was the appellant's complaint that the primary judge failed to consider and deal with the expert evidence concerning the response time available to the appellant to avoid the collision. The other was a challenge to his Honour's finding that the appellant was driving at an excessive speed. The appellant emphasised that there was no finding of excessive speed when his Honour addressed the issue of negligence.

(a) Response time available to the appellant

1. While the appellant accepted that he should have seen the respondent at some point before the collision, it was contended that the occurrence of the accident was not caused by the failure to keep a proper lookout because the appellant would not have been able to stop in time to avoid a collision.
2. Reliance was placed on the evidence of Mr Urquhart that there was insufficient response time available to the appellant to avoid the collision. The evidence of Mr Johnston to the contrary was said to be of no assistance because it was based on assumptions concerning the point of collision, which were contrary to his Honour's findings. This submission ignored Mr Johnston's unchallenged evidence in his report that it is the distance that a pedestrian walks after entering the roadway that is the key determinant of the avoidance options.

Determination

1. The starting point is to note that his Honour did not make any findings based on the expert evidence concerning the sufficiency of the time available to the appellant to avoid the collision. It is necessary therefore for this Court to consider the matter and make the necessary findings: Supreme Court Act 1970 (NSW), s 75A.
2. The evidence of the experts has been summarised above. It is appropriate to preface the following discussion with a brief restatement. Mr Urquhart's opinion (assuming that the impact occurred in the centre of the eastbound lane of Potter Street) was that the total stopping time, from the point of first perception to the vehicle being brought to a halt, was between 2.5 and 3.4 seconds, whereas it would take the respondent 2.5 seconds (assuming an average walking speed of 1.25 metres per second) to walk (3.1 metres) from the kerb to the point of impact. Assuming, however, a point of impact of 4 metres onto the roadway, Mr Urquhart considered that the time in motion of the respondent of 3.2 seconds was similar to the total stopping time of the appellant. Extrapolating Mr Urquhart's table of motion, if the distance travelled to impact was 5 metres onto the roadway, it was common ground that the time in motion of the respondent was 4 seconds.
3. Contrary to Mr Urquhart, Mr Johnstone reached the conclusion that the appellant should have been able to stop his vehicle before getting to the point of impact whether the distance travelled by the respondent from the kerb was 4 metres, as identified in the COPS entry, or 3.1 metres, being Mr Urquhart's most likely scenario, which was consistent with his Honour's finding that the point of impact was in the middle of the eastbound lane of Potter Street. As already indicated, the appellant did not seek to cross-examine Mr Johnston. Nor did it lead any evidence from Mr Urquhart disagreeing with Mr Johnston's criticism that Mr Urquhart failed to pay necessary attention to the distance involved and focused exclusively on time.
4. There are a number of difficulties with an acceptance of Mr Urquhart's views.
5. First, Mr Johnston was not challenged on his opinion that the range of perception/response times estimated by Mr Urquhart (1.8 - 2.4 seconds) was too high. Assuming that the collision occurred adjacent to the first tree in Potter Street, Mr Johnston's view was that the appropriate response time was 1.4 seconds. A difference of 0.4 seconds has a material bearing on whether the appellant could have avoided the collision, particularly when taken into account with the matter next referred to.

(b) Appellant's speed

1. The appellant also complained that his Honour erred in finding that the appellant accelerated too quickly, or was driving at an excessive speed at the time of the collision. It was argued that there was no evidence to support that finding and such finding could only have been made with the impermissible use of hindsight. The appellant pointed to Mr Urquhart's evidence that the appellant was driving at an appropriate speed in the circumstances, being around half the prevailing speed limit of 50 kph and that Mr Johnston had generally accepted the accuracy of the calculations made by Mr Urquhart as to the appellant's speed and agreed that it was not an unreasonable speed.
2. In light of the above conclusion on causation, it is unnecessary to address this issue. If it were necessary to decide the matter, I am inclined to the view, taking into account what was common ground between the experts, and the absence of evidence that the appellant was rushing to take advantage of a gap in the southbound traffic on Bourke Street when he turned right into Potter Street, that the appellant was not travelling at an excessive speed in all the circumstances. I do not regard the evidence of the "screech" before the "thump" when the taxi collided with the respondent as indicative of a "squeal" associated with rapid acceleration.

D. Contributory Negligence

1. The issues raised by the finding of contributory negligence fall into two categories. First, whether the respondent was contributorily negligent in failing to take precautions against the risk of harm he suffered (cross-appeal, ground 6). Secondly, whether the assessment of a reduction of 40 per cent to the respondent's damages for the respondent's contribution to them was manifestly inadequate, as the appellant contended (appeal grounds 10 and 11) or manifestly excessive, as the respondent contended (cross-appeal ground 7).
2. Section 138(1) of the Motor Accidents Compensation Act 1999 (NSW) applied to the motor accident in which the respondent was injured: s 3B(2)(a), Civil Liability Act. It provides that the "common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor vehicle", except as provided by the section. The reference to the enacted law relevantly includes s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) and ss 5R and 5S of the Civil Liability Act, which apply by reason of s 3B(2)(a) of that Act.
3. Section 5R of the Civil Liability Act provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury. The reference to "harm" includes personal injury: Civil Liability Act, s 5. A person is not negligent in failing to take precautions against a risk of harm unless that risk was foreseeable, not insignificant and, in the circumstances, not one against which a reasonable person in the person's position would have taken precautions: s 5B(1).

Particulars of contributory negligence

1. The particulars of contributory negligence by the respondent were as follows: 1. failure to keep a proper lookout; 2. failure to take adequate care for his own safety; 3. crossing Potter Street when it was not safe to do so; 4. failing to cross Potter Street at the designated crossing at the T-intersection of Bourke Street and Potter Street, Waterloo.

The primary judge's reasons

1. The primary judge made the following findings (at [36] -[39]):

• the respondent did not look to see whether there were any stationary vehicles waiting to turn from Bourke Street into Potter Street before attempting to cross Potter Street;
• the respondent decided to cross Potter Street ten metres from the lights controlling the traffic and pedestrians at the intersection, rather than crossing with the lights at the intersection, which would have been a safer course of action;
• notwithstanding the respondent's explanation for not using the pedestrian crossing because he had been "brushed" in the past by cars turning into Potter Street, the pedestrian crossing was controlled by lights that could be activated by a pedestrian to allow a safe crossing; and
• the respondent had some responsibility for the accident by not crossing at the nearby, traffic light-controlled, pedestrian crossing at the corner of Bourke Street and Potter Street.

1. As already indicated, his Honour assessed the respondent's contributory negligence as 40 per cent.

The competing arguments of the parties

1. The appellant argued that the deviation from the standard of care required of him as a driver was exceedingly slight. In particular, his speed was reasonable; he was focused on making a turn; and even if he had seen the respondent on the footpath, there was no reason to him to perceive, much less to anticipate, any reasonable prospect of the respondent attempting to cross Potter Street until the very last moment.
2. The appellant further argued that, given his Honour's findings that (a) the respondent decided to cross Potter Street 10 or 12 metres from a pedestrian crossing controlled by traffic lights; (b) the respondent did not look to see whether there were any vehicles waiting to turn from Bourke Street into Potter Street; and (c) the respondent came upon the roadway by "swinging around" a tree and stepping into the path of the appellant's taxi, his Honour erred in failing to apportion the major share of responsibility for the collision to the respondent. It was submitted that the respondent's contributory negligence should have been assessed at a high degree, in the order of 80 per cent.
3. The respondent disputed that the primary judge made the second and third of the "three findings" stated by the appellant. It was contended that his Honour erred in not taking into account the respondent's evaluation that it was safe to cross where he did and that the respondent had been crossing at that location without incident since shortly after he started work at HPM in September 1998.
4. The respondent further contended that the evidence did not permit a finding that had the respondent crossed at the traffic lights the accident would not have occurred. It was argued that there was no evidence that the appellant would have seen the respondent if he had been at the traffic lights, nor evidence from the appellant that he looked to see whether any pedestrians were using the crossing before he turned into Potter Street.
5. The respondent contended that his Honour ought to have found no contributory negligence, or alternatively any finding of contributory negligence ought to have been minimal and no more than 10 per cent.
6. Both parties accepted that the appropriate approach to apportionment required the "balancing exercise" described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 (Podrebersek). In written submissions, the parties diverged on the status of authorities prior to the Civil Liability Act as to whether the driver of a motor vehicle has a greater responsibility to avoid harm than a pedestrian: Pennington v Norris (1956) 96 CLR 10 (Pennington v Norris), Anikin v Sierra [2004] HCA 64; 211 CLR 621; and Podrebersek. The appellant suggested that there is considerable doubt as to whether those earlier authorities should now be followed. Reference was made to statements by this Court in T & X Company Pty Ltd v Chivas [2014] NSWCA 235 (T & X Company v Chivas) and Boral Bricks Pty Ltd v Cosmidis (No. 2) [2014] NSWCA 139; 86 NSWLR 393 (Boral Bricks v Cosmidis (No. 2)) involving cases under the Civil Liability Act. The appellant submitted that s 5R and s 5B of the Civil Liability Act alter the emphasis placed on the conduct of the driver and instead emphasise the responsibility of pedestrians for their own safety.

(a) The respondent contributed to his own damage

1. Given his Honour's findings (at [37]) as to the point of impact of the collision 10 or 12 metres from the pedestrian crossing, and the respondent's failure to observe the traffic in Bourke Street, or look to see if there were any stationary vehicles waiting to turn from Bourke Street into Potter Street, it is not to the point that the respondent may have safely crossed Potter Street for many years at a different location further along Potter Street. The respondent did not pay due attention to the presence of oncoming traffic turning into Potter Street. Nor did he check for oncoming traffic from Bourke Street once he stepped off the kerb; he only looked straight across the road, and later to his left, as he approached the middle of Potter Street. His failure to take reasonable care for his own safety went beyond mere inadvertence. It cannot be explained by a lack of knowledge or visibility of vehicles waiting to turn from Bourke Street into Potter Street.
2. Next, the respondent's contention that the collision would have occurred even if he had crossed at the traffic lights is misconceived. First, it raises a false issue because the relevant question is whether the respondent took reasonable care for his own safety in crossing Potter Street where he did; and, on his Honour's findings, which have not been shown to be wrong, he did not, because he did not keep a proper lookout for the presence of vehicles turning from Bourke Street into Potter Street either before or after he stepped off the kerb.
3. Thirdly, it is speculation to suggest that if the respondent had crossed at the traffic lights he would still have been hit by the appellant. This relies upon two assumptions which are not made out. One is that the lack of due attention on the part of the appellant would have been the same if the respondent had crossed at the traffic lights. That is unfounded speculation. The other assumption is that the phrasing of the traffic signals permitted pedestrians to cross on a green "Walk" sign at the Potter Street intersection at the same time as traffic could turn right from Bourke Street either on a green light or green arrow. There was no evidence of the phasing of the lights at the intersection to support this assumption.
4. For these reasons, I do not consider that there was any error in his Honour's finding of contributory negligence on the part of the respondent.

(b) Apportionment

1. It has been said that the apportionment of responsibility under the Civil Liability Act is not without difficulties. Such difficulties were emphasised by Beazley P (Barrett and Gleeson JJA agreeing) in Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, where the President said: [161] The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case. [162] As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 38(3) requires the court to reduce the damages recoverable "by such per centage as the court thinks just and equitable in the circumstances of the case".
2. In Pennington v Norris (16 - 17), the High Court emphasised that what was to be considered was the respective degrees of departure from the standard of care of the reasonable person. There it was said that driving a car at high speed involved negligence of a far greater culpability than the failure of a pedestrian to keep a proper lookout when crossing the road. The High Court fixed the proportions at 20:80, rather than the 50:50 which had been fixed by the trial judge.
3. It is well established that the apportionment decision of the trial judge is "not lightly reviewed": Podrebersek, 494. This is on the basis that reasonable minds may differ as to where within a particular range the appropriate result is to be found: Podrebersek, 493-494. However, whilst the principle of restraint is important, as Basten JA explained in Nominal Defendant v Green [2013] NSWCA 219; 64 MVR 354 at [48], its operation may vary depending on the circumstances as to whether the decision involves a jury case or determination by a judge with particular expertise in the area. Also important is the nature of the challenge by the party seeking appellate intervention. The essential question is whether a finding is outside an appropriate range, in which event this Court would usually intervene under s 75A of the Supreme Court Act 1970 (NSW).

E. Damages

1. The total damages sum (before contributory negligence) of $1,154,326.24 assessed by his Honour comprised: Non-economic loss $ 175,000.00 Past out-of-pocket expenses $ 108,880.94 Future medical treatment costs $ 143,817.00 Past wage loss $ 272,484.00 Past loss of superannuation $ 29,973.24 Fox v Wood $ 15,377.25 Future economic loss $ 160,000.00 Future loss of superannuation $ 17,600.00 Past gratuitous assistance $ 47,142.00 Past paid assistance $ 33,629.00 Future commercial assistance $ 150,422.81 Total (unreduced) $1,154,326.24

1. The appellant challenged his Honour's assessment of damages on two bases. First, it was contended that his Honour failed to take into account the respondent's significant pre-accident symptoms and conditions affecting his right shoulder, right wrist and low back in assessing damages under all heads. Related to this was a complaint that his Honour erred in relying upon the respondent's medico-legal evidence in support of his claim which was based on incomplete or inaccurate histories of the respondent's pre-existing symptoms affecting his right shoulder, right wrist and low back (grounds 12-14, 16-20).
2. Secondly, it was contended that his Honour erred in the calculation of damages for future medical treatment and care without making any discount for the respondent's reduced life expectancy as assessed in Dr Slezak's evidence (grounds 15, 16 and 18).
3. It is convenient to deal with these complaints separately.

The primary judge's reasons

1. The primary judge found that the respondent suffered injuries to his right shoulder, right wrist, low back, left thumb and both knees. He rejected the respondent's claim that he suffered gastrointestinal symptoms, or seizures, as a result of the accident as the respondent had alleged. He also accepted that the respondent had suffered psychological symptoms caused by the accident.
2. His Honour found that the principal injury suffered by the respondent was an injury to his right shoulder. His Honour referred to the evidence concerning the respondent's earlier right shoulder pain and treatment, first in August 2006 and again on a number of occasions in 2007 when he sought medical treatment and when he saw his general practitioner, Dr Mahammad Viuk, on 16 January 2011, two weeks before the accident.
3. His Honour found that the respondent did not disclose any prior problem with his right shoulder to any doctor, including the treating surgeon, Dr Biggs. His Honour continued at [65]: It would be natural for the Plaintiff, given the type of heavy work he was engaging in, and being right-handed, to have shoulder pain and strain from time to time. The lack of frankness by the Plaintiff about his right shoulder problem reflects upon the Plaintiff's credit.
4. His Honour also noted that the respondent gave evidence of back pain prior to the accident, although he did not always admit back pain to the doctors who examined him: at [71]. His Honour referred to the histories recorded by Dr Wallace, Dr Deveridge, Dr Harrison and Dr New, to the effect that the respondent had no previous history of injury or disability from back pain prior to the accident, although he did tell Dr Harrison of a back injury five years prior to the accident, "but that settled": at [73]. After referring (at [74]) to the appellant's submissions detailing the respondent's pre-accident history of complaints and examinations in relation to back and leg pain from 2006 to 2009, none of which the respondent recalled in cross-examination, his Honour continued at [75]: The Plaintiff's vagueness as to his medical history with regard to back pain goes to his overall credit. Against this I must balance the fact that his work was heavy duty in a foundry and back complaint and pain would not be uncommon. I accept that following various treatments to his back he returned to his old job in the foundry.

Submissions

1. The appellant emphasised that his Honour had received detailed written submissions on this issue at trial, particularly in relation to the complaints made by the respondent before the accident, the symptoms recorded by treating doctors before the accident, and the radiological investigations carried out, relating to the respondent's right shoulder and low back. Those submissions were to the effect that the respondent had deliberately concealed these pre-accident symptoms and conditions from the medico-legal experts relied upon in his case, and had falsely denied any recollection of such symptoms in cross-examination. Although the primary judge noted some of the appellant's submissions in his reasons, particularly in connection with the right shoulder and low back, the appellant complained that there is nothing in his Honour's reasons to demonstrate that he took this matter into account in assessing damages.
2. The appellant also complained that there is nothing in his Honour's reasons to suggest that any account was taken of the credit finding concerning the respondent's lack of frankness about his pre-accident symptoms in assessing the damages. The appellant emphasised that his Honour had made his assessment of damages under most heads in reliance on the respondent's medico-legal evidence. The appellant contended that the failure to take any account of the respondent's pre-accident symptoms and conditions infected the assessment under each and every head of damage.
3. In support of these contentions, the appellant pointed to the high measure of correlation between the respondent's schedule of damages at trial and the amounts awarded by his Honour in respect of each of the heads of damage. So much was acknowledged by the respondent, as can be seen in the following table provided to the Court by the appellant: Head of Damage Amount awarded Respondent's Submission Appellant's Submission Non-economic loss $175,000.00 $250,000.00 $125,000.00 Past out-of-pocket expenses $108,880.94 $109,886.59 $8,554.00 Future medical treatment costs $143,817.00 $280,029.91 $10,000.00 Past wage loss $272,484.00 $272,484.00 $81,645.90 Past loss of superannuation $29,973.24 $29,973.24 $8,588.00 Fox v Wood $15,377.25 $15,377.25 $15,377.25 Future economic loss $160,000.00 $358,888.53 Nil Future loss of superannuation $17,600.00 $41,954.07 Nil Past gratuitous assistance $47,142.00 $58,928.00 Nil Past paid assistance $33,629.00 $33,629.00 $6,298.00 Future commercial assistance $150,422.81 $150,433.81 $12,685.00 $1,154,326.24 $1,601,584.40 $268,148.15

1. The appellant submitted that it is not appropriate for this Court to attempt to reassess the damages, since the assessment of damages is dependent on the respondent's credibility. Accordingly, the appellant sought a new trial on the issue of damages.

Determination

1. In my view, the appellant's contentions should be generally accepted. First, it is not apparent from his Honour's reasons that the adverse credit finding was taken into account, as his Honour said that it should be, in assessing damages. In particular, his Honour's reasons do not address what impact the credit finding had on the weight that should be given to the opinions of the medico-legal experts relied upon by the respondent, based, as they were, on the incorrect and incomplete history provided by the respondent. The medical opinions were premised on an acceptance of the appellant's account of his history and complaints. Such an opinion would only be as acceptable as the history on which it was based: Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 at [60] (Gleeson CJ, McHugh and Gummow J) and at [105] (Kirby J).
2. Secondly, it may be inferred from his Honour's acceptance of most of the respondent's claim under the various heads of damage, without any reference to the adverse credit finding, that his Honour disregarded the incorrect and incomplete histories provided to the respondent's medical experts. As can be seen from the table (set out at [135] above), his Honour awarded the precise amount claimed by the respondent in respect of past wage loss, past superannuation loss, the Fox v Wood component, past paid assistance and future commercial assistance, whilst the award for past out-of-pocket expenses was discounted by only about $1,000 less than the respondent's claim.
3. The respondent sought to counter the inference that his Honour failed to take into account the credit finding by pointing to the award for non-economic loss of $175,000, this being just under the mid-point of the respective amounts the parties had suggested. Against this, his Honour's reasons do not suggest that this figure was arrived at having regard to the credit finding. On the contrary, his Honour's observations (set out at [140] and [141] above) that shoulder pain "would be natural" and back pain would "not be uncommon" having regard to the heavy duty nature of the respondent's employment in a foundry, and that "following various treatments to his back he returned to his old job", seem to indicate that his Honour disregarded the respondent's pre-accident symptoms and conditions when assessing damages, including non-economic loss.
4. The respondent also sought to uphold the award of damages by contending that the evidence in relation to pre-accident symptoms was not as dramatic as the appellant suggested. I do not agree. The appellant provided detailed written submissions on damages at trial. It is unnecessary to canvass all the evidence. Importantly, the respondent did not dispute that he did not disclose any prior history of right shoulder injury to Dr Biggs, Dr Drummond, Dr Wallace or Dr Harrison. Nor did he disclose any previous history of injury or episodes of pain in his spine to Dr Wallace, Dr Deveridge, or Dr New.

The primary judge's reasons

1. It was common ground that at the time of trial the respondent's statistical life expectancy was 18.5 years. Although his Honour did not make an express finding in this regard, he proceeded to assess damages for future medical treatment and future care (at [112] and [137]), using a multiplier of 635.6 as submitted by the respondent, which was based on an undiscounted statistical life expectancy of 18.5 years.

Submissions

1. The appellant pointed to the evidence of Dr Slezak, a consultant physician, who concluded that the respondent suffered from vascular disease, and had a reduced life expectancy because of this unrelated condition, of only 10 to 13 years. Dr Slezak's opinion was given in a report dated 5 December 2013 which was not challenged at trial. By the time of the trial, the respondent's life expectancy, according to Dr Slezak, was only 8.5 to 11.5 years.
2. The appellant contended that his Honour erred in adopting an assumed life expectancy for the respondent of 18.5 years and should have assumed a life expectancy of between 8.5 and 11.5 years having regard to the evidence of Dr Slezak. This error was said to impact the assessment damages for future treatment and future care. The error was said to be material. The multiplier for 11.5 years is 459, and if the median of 10 years is used, the multiplier is 412.9. The respondent did not dispute these figures or that the error, if established, was material.
3. The respondent sought to uphold his Honour's assumption of a life expectancy of 18.5 years. The respondent argued that the assessment of the respondent's life expectancy in Dr Slezak's first report was qualified by the opinion expressed in his supplementary report of 28 April 2014, where Dr Slezak expressed an opinion on the question of whether the respondent's other medical conditions would have impacted upon his employment capacity regardless of the 2011 accident. Dr Slezak identified the respondent's "background medical conditions" as: (a) underlying type 2 diabetes mellitus which had been diagnosed at the age of 50; and (b) the more recently diagnosed seizure disorder with onset in February 2015.

Determination

1. It is not in dispute that his Honour did not refer in his reasons to the unchallenged evidence of Dr Slezak, which was relevant to the respondent's assumed life expectancy. Nonetheless, his Honour must be taken to have rejected Dr Slezak's opinion. In my view, his Honour erred in assuming that the appellant's life expectancy at the time of trial was 18.5 years.
2. The two reports of Dr Slezak address different aspects of the matter.
3. Dr Slezak's first report of 5 December 2013 was given in respect of the anticipated life expectancy of the respondent, then aged 66 years, having regard to his background health which included a diagnosis of type 2 diabetes at the age of 50 and evidence of sub-optimum glycaemic control 18 months later. Dr Slezak's supplementary report of 28 April 2014 was directed to a different issue. This was whether the respondent would likely have developed vascular disease prior to his anticipated retirement age of 65 years. Dr Slezak expressed the opinion that it was not possible to confidently predict whether the respondent would have developed any such complications prior to his anticipated retirement age of 65 years.
4. In his supplementary report, Dr Slezak noted that the respondent had managed to continue work duties for 14 years following the diagnosis of the type 2 diabetes. He continued: Sub-optimum glycaemic control does predispose to the development of accelerated obstructive vascular disease, particularly myocardial infarction, peripheral vascular disease and stroke. It would not be possible, however, to confidently predict as to whether the respondent would have developed any such complications prior to anticipated retirement age of 65 years.
5. Nothing in the supplementary report of Dr Slezak undermines his assessment of the respondent's life expectancy (as at December 2013) of a further 10 to 13 years.
6. Ground 15 has been made out with respect to the error in the assessment of future treatment and future care. If this was the only error it would have been possible for this Court to re-assess these components of the claim for damages. However, it was common ground on the appeal that, if error was established with respect to the other grounds relating to damages, it was not appropriate for this Court to re-assess damages because there are credit issues involved and therefore the matter should be remitted for re-assessment of damages by the District Court.

Conclusion, Costs and Orders

1. The appellant has failed in his challenge to his Honour's findings on liability and the respondent has failed in his challenge to his Honour's finding as to the point of impact of the collision. Both parties have failed in their respective challenges to his Honour's assessment of contributory negligence.
2. The appellant has succeeded in establishing error with respect to the assessment of damages. It follows that the appeal should be allowed in part and the notice of cross-appeal dismissed. The credit issues involved in the assessment of damages preclude this Court from being in as good a position to decide the issues as the District Court. Accordingly, the proceedings must be remitted for a new trial on damages.
3. As to costs, there is no reason for disturbing the costs order made in favour of the respondent-plaintiff in the court below. First, the respondent has maintained the finding of liability against the appellant. Secondly, it can be expected that the respondent will be awarded some substantial damages on a re-assessment. So much can be inferred from the appellant's submissions at trial as to the appropriate award of damages under the various heads of damage: see table set out at [146] above.
4. As to costs in this Court, the appellant should receive a proportion of its costs to reflect his limited success in the appeal, subject to the outcome of the retrial on damages. As Hodgson JA explained in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121], "underlying the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs". Most of the time spent by the parties in submissions, both written and oral, was directed to the liability issues, on which the appellant failed apart from the finding as to the point of impact of the collision being upheld.
5. In the circumstances of the present case, justice requires that the respondent not bear all of the appellant's costs in this Court. In my view, the appropriate order would be that the respondent pay 40 per cent of the appellant's costs in this Court.
6. I would propose the following orders: 1. Appeal allowed in part. 2. Notice of cross-appeal dismissed. 3. Set aside order 1 made by Sorby DCJ on 1 September 2015. 4. Remit the matter to the District Court for a new trial on damages. 5. Respondent to pay 40 per cent of the appellant's costs in this Court. 6. Respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

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: 02 August 2016