Davis v Swift

Judgment 1MEAGHER JA: On 20 March 2009, the appellant pedestrian was injured when a motor vehicle driven by the respondent ran over her right foot. The appellant brought proceedings against the respondent for negligence and, in the alternative, on the basis that her injuries were the result of a "blameless motor accident" within Division 1 of Part 1.2 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). 2A "blameless motor accident" is defined in s 7A to mean: a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person. 3In Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36 this Court held that a "blameless" accident includes one where there has been contributory negligence on the part of the injured person. In Axiak, the plaintiff, then a 14 year old school student, was struck by a vehicle as she ran out from behind a school bus. Neither party submitted that Axiak was wrongly decided, either as to what constitutes a "blameless motor accident" or as to the approach to be applied when assessing the extent of any reduction in the injured person's damages for contributory negligence.

The issues on appeal 4The primary judge (Gibson DCJ) rejected the appellant's claim: Davis v Swift [2013] NSWDC 99. She held that the respondent was not negligent; that if the respondent were liable in negligence, the appellant's damages should be reduced by 100 per cent by reason of her contributory negligence; that the accident was a "blameless motor accident"; and that the damages for which the respondent was liable on that basis also should be reduced by 100 per cent for the appellant's contributory negligence. The primary judge assessed the appellant's damages (before any reduction) at $158,713. 5The appellant challenges the finding as to liability, the contributory negligence assessments and the determinations of damages for past and future out-of-pocket expenses, non-economic loss, past and future economic loss and future domestic care and assistance.

The accident 6The primary judge did not accept the appellant's version of the events in which the accident occurred. Her Honour's findings as to the circumstances of the accident, except in relation to whether the respondent should have seen the appellant on the roadway as the appellant moved backwards and into the respondent's vehicle, are not challenged on appeal. 7Vincent Street is the main road in Cessnock and has four lanes running in a north-south direction. The accident happened at about 1.50pm and in fine weather conditions. At that time of the day, the kerbside lanes in each direction were occupied by parked vehicles. The respondent's vehicle was parked on the eastern side of the street facing south and outside the Wentworth Hotel. The nearest pedestrian crossing was about 60 metres to the north of where the respondent's vehicle was parked. 8The appellant decided to cross Vincent Street from its eastern side. She stepped off the kerb in front of the respondent's parked vehicle and walked to the middle of the road. At that point, traffic travelling in the outside northbound lane made it unsafe for her to proceed further. The primary judge found that at this point, after hesitating momentarily, the appellant "[ran] or [stepped] backwards very quickly, without looking, into the southbound traffic lane" and into the path of the respondent's vehicle: [45], [47]. 9In the seconds before this happened, the respondent was sitting in her vehicle, with the engine on, preparing to leave the kerb. Another vehicle had stopped in the outside southbound traffic lane to allow her to do so. That vehicle was intending to take her kerbside parking position. The respondent looked over her shoulder and saw that stationary vehicle. She then looked forward. As she did so she turned her steering wheel to the right on full lock and, adopting her description, "just started to creep out of the car spot". At that time she felt a bump that was the appellant colliding with the front of her vehicle and catching her right foot under the front driver's side tyre. 10The primary judge concluded: [46] As the plaintiff moved back in this sudden and unexpected manoeuvre, the defendant, who was looking at the southbound traffic lane from her vantage point of the vehicle, was already engaged in moving. It was too late to see the plaintiff; the defendant had already put on her indicator and looked over her right shoulder to see nothing coming, using her rear vision mirror. [47] I find that the plaintiff caused the accident by moving very quickly, backwards from the middle of the road and into the path of the defendant's vehicle. The fact that the defendant did not see the plaintiff at any time prior to the collision may be explained by the plaintiff's quick and sudden movements taking place outside the timeframe of the defendant's checking in all relevant directions before pulling out from the kerb. 11It is conceded by the respondent that the finding that she had "put on her indicator" is wrong. However, in argument it was accepted by the appellant that this finding was not material, either to the question of breach of duty or to any assessment of contributory negligence.

Breach of duty (grounds 1, 2, 3, 4 and 6) 12The appellant contends that the primary judge erred in not holding that the respondent failed to keep a proper lookout as she commenced to drive her vehicle from the kerb. It is said that had the respondent kept a proper lookout she could and would have seen the appellant retreating back towards the space between the two parked vehicles through which she had walked. Having seen her, the respondent should not have moved until she knew what the appellant was doing. 13The respondent's evidence was that before she commenced to move her vehicle from the kerb she looked forward, looked over her shoulder, saw the car waiting to take her parking space and then looked forward again. As she did so, she turned the wheel to the right and started to creep out from the kerb when she felt a bump. At that point, she saw the appellant's head "falling near the rear-view [mirror] on the [driver's side] of the car". The respondent did not see the appellant before that point in time. 14The appellant's version of events, which the primary judge rejected, was that she stepped off the kerb between the two parked cars and, without having proceeded very far at all, turned around to walk back to the kerb. At that instant, in the appellant's words, the wheel of the respondent's tyre "grabbed the point of my shoe and as she's turning her wheel, the wheel is turning and it turned me and threw me onto the street, into the traffic lane." It is not submitted that the primary judge erred in rejecting this evidence of the appellant. 15In support of her submission as to the respondent's failure to keep a proper lookout, the appellant relies upon the evidence of four other witnesses - two of whom saw the accident and two of whom saw video footage of the accident. That footage was not available at the trial because it had been automatically deleted some three weeks after the accident. Those witnesses were Mr Schubert, who was the driver of the stationary vehicle; Ms Preston, who was standing on the footpath outside the Wentworth Hotel at the time of the accident; and Mr Fenton and Mr Jessep, each of whom viewed, on the day of the accident, closed circuit television footage taken from a camera mounted under the awning at the main entrance to the hotel. That camera was facing in a "generally southerly direction" along Vincent Street. 16The appellant did not contend that there was anything in particular the respondent should have done by way of keeping a proper lookout in accordance with her duty to take reasonable care for the safety of users of the roadway, including pedestrians: as to which see McHugh J in Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [26]. Rather it was submitted that the primary judge should have concluded that the respondent could not have been maintaining a proper lookout because had she been doing so, she would have seen the appellant as she moved backwards and into her vehicle in sufficient time to take action to avoid a collision. As the appellant's counsel put the matter, the appellant must have been in the respondent's field of vision as she looked ahead, having first looked back over her right shoulder, and there is no reason "apart from the failure to keep a proper lookout" that could explain why she did not see her. 17Acceptance of this argument depends upon whether the evidence relied upon required a finding that the appellant was in the respondent's field of vision and would have been seen from inside her vehicle if the respondent had looked forward, looked over her shoulder and then looked forward again as she asserted. The evidence does not show with sufficient precision where the appellant was on the roadway relative to the respondent's position in her vehicle immediately before the collision. 18The evidence of Mr Schubert was that the appellant was walking backwards towards the front right of the respondent's car; that that car was barely moving; that it had pulled out about half a metre; that the events happened very quickly and that the first time he saw the appellant was in the vicinity of the right hand front headlight of the respondent's vehicle. Ms Preston's evidence was no more precise as to the appellant's position on the roadway. She said that the "lady that was crossing the road ran back to the front of the car and the lady in the car hit the lady standing there". Mr Jessep, who viewed the video footage, described the appellant as being in the centre of the road and then as having jumped backwards and into the side of the respondent's car. Mr Fenton also described the appellant as having stepped back into the wheel of the car. Neither saw what then happened because the view of the camera was blocked by the respondent's car. 19That being the state of the evidence, the primary judge did not err in not inferring fault on the part of the respondent. The evidence of these four witnesses and the respondent's evidence did not justify a finding that from the respondent's position in the driver's seat had she looked forwards, backwards and forwards as she asserted, she must have seen the appellant in time to take some action to avoid colliding with her.

Breach of duty: contributory negligence (ground 8) 20This issue does not arise and it is not possible to address it in the absence of specific findings as to the nature and extent of the culpability of the respondent.

Blameless accident: contributory negligence (ground 10)

The relevant statutory provisions 21In a "blameless accident", by definition, the incident or accident that results in the death or injury is not caused by the fault of the owner or driver of the motor vehicle. In the present case the conclusion that the respondent driver was not negligent has the consequence that the motor accident in which the appellant was injured was a "blameless motor accident". Section 7B(1) then operates "for the purposes of and in connection with any claim for damages" to deem the appellant's injuries which resulted from that accident "to have been caused by the fault of the owner or driver ... in the use or operation of the vehicle". That deeming, which is contrary to the actual position in relation to that "fault", only applies where the motor vehicle has "motor accident insurance cover for the accident" (which by s 3B(2) includes coverage under a third-party policy). 22The deeming has the consequence that the MAC Act applies if the "injury" answers the description in s 3A(1)(a), (b), (c), or (d), that the owner or driver is liable in damages to the injured person for the injuries sustained and that the owner and driver are indemnified against that liability under the terms of the relevant third-party policy (s 10). 23Section 138(1) of the MAC Act provides that the "common law and enacted law as to contributory negligence" apply to an award of damages in respect of a motor accident, except as provided by that section. The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility. 24The starting point is s 9(1) which provides that if the claimant "suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person" the damages recoverable in respect of the wrong "are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". That description of contributory negligence reflects the common law position that the claimant's lack of care must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21]. 25The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494 as follows: The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage .... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance. 26Section 138(3) is in different terms to s 9(1) and the other State provisions based on s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (UK). Whereas those provisions require the Court when assessing what is "just and equitable" to have regard "to the claimant's share in the responsibility for the damage", s 138(3) provides: (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. 27Section 74(3) of the Motor Accidents Act 1988 (NSW) is in the same terms. In Nicholson v Nicholson (1994) 35 NSWLR 308 at 333-334, Mahoney JA suggested a reason for the use of the broader language. The concept of contributory negligence involves the plaintiff's lack of care contributing to the damage. However, the effect of s 74(2), which is in similar terms to s 138(2), is to require a finding of contributory negligence in cases where the act or omission may not have caused or contributed to the damage claimed. Relevantly in that case, s 74(2)(c) required a finding of contributory negligence "where the injured person ... was ... not wearing a seat belt as required" by law. That being the position, the broader language may have been used to allow the Court in such cases to recognise that it would be unjust and inequitable, where there was no such causation or contribution, to reduce the damages otherwise recoverable. The remaining members of the Court, Kirby P with Meagher JA agreeing, also held that the finding of contributory negligence required by s 74(2)(c) did not constrain the inquiry as to what was "just and equitable" or prevent consideration of all of the circumstances, including whether the absence of a seat belt contributed to the damage claimed. 28In a case that does not involve a finding of contributory negligence made under s 138(2) or deemed fault on the part of the owner or driver, an assessment of what is "just and equitable in the circumstances of the case" will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek. See the discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180; 43 MVR 315 at [54] - [63]. In Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [157] Hayne J considered s 74(3) to require the undertaking of such a comparison: cf Kirby J at [133]. 29Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, 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 the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence. 30The "No-fault claims - children and blameless accidents" provisions in Pt 1.2 were introduced by the Motor Accidents Compensation Amendment Act 2006 (NSW). Division 1 provides for "Recovery for blameless accidents" and Division 2 for "No-fault recovery by children". In the second reading speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 9 March 2006 at 21,403), the Minister for Transport (Mr Watkins) described Division 1 as extending "the scope of the CTP scheme to provide compensation entitlements for injury or death resulting from a blameless or inevitable accident, which is a motor vehicle accident where no-one is considered to have been at fault - for example, when a person is injured because a driver experiences an unforeseen illness or medical condition, which results in a loss of control over the vehicle". 31As the Minister also explained (at 21,403), Division 2 provides a "special benefit for children aged up to 16 and a resident of New South Wales at the time of the accident, in those circumstances where the driver of the motor vehicle involved in the accident was not 'at-fault'. The child's injury must be caused by a motor vehicle accident of a kind recognised by the Act. The special benefit will cover the injured child's treatment, rehabilitation and care costs as currently prescribed by the Act". That entitlement to damages (described in s 7J(3) as a "special entitlement") is not to be reduced on account of contributory negligence of the child except in the limited circumstances described in s 7K(2). Those circumstances involve death or injury occurring in or in relation to the commission of a serious offence. As between the two divisions, subject to the exception in s 7P(2), Division 2 does not apply in a case to which Division 1 applies. The effect of that exception is that any liability to a child for damages arising under Division 1 for expenses within the "special entitlement" is not to be reduced on account of contributory negligence in the way any other damages might be reduced in accordance with s 7F (see below). 32In Axiak the Court held that the closing words of the definition of blameless accident - "and not caused by the fault of any other person" - refer only to tortious conduct of a person other than the injured person. That is principally because "fault" is defined in s 3 as meaning "negligence or any other tort". It follows that a "blameless accident" can include one in which there has been contributory negligence of the injured person. Section 7F (which provides that Division 1 "does not prevent the reduction of damages by reason of the contributory negligence of the deceased or injured person") is consistent with that being the position.

A "blameless accident" 33The circumstances in which an incident or accident may be a "blameless accident" are varied. They include (as the Second Reading Speech makes clear) where the driver has been incapacitated from continuing in careful control of the vehicle because of some unforeseen and immediately debilitating illness or medical condition. Specific examples are provided by the facts in Smith v Lord [1962] SASR 88 (where the driver suffered a blackout and lost control of his vehicle which then collided with a stationary motor vehicle) and in some of the cases referred to by White J in Leahy v Beaumont (1981) 27 SASR 290 at 294 - 296. 34The owner and driver may be without fault in circumstances where the driver loses control because of some catastrophic failure of a component of the vehicle which involves no negligence in its care and maintenance. They may also be without fault because an event or incident on or in the vicinity of the roadway (such as an animal running on to the roadway) results in the driver losing control, or having to take evasive action, and causing an incident or accident involving injury. 35In these cases, notwithstanding that the driver may have lost control of the vehicle or otherwise driven in a way that caused an accident and injury, there was no fault involved in his or her doing so. On the other hand, any person injured as a result of that accident may, by his or her lack of care, have contributed to its occurrence and the injury which it caused. 36As was the position in Axiak, the position in this case is that the "blameless accident" is not one in which the driver has failed to continue in careful control of his or her vehicle, or had to take evasive action which resulted in the accident. In each case, there was no driving that in other circumstances would have involved fault. There was, however, contributory negligence on the part of the person injured.

Axiak and the issue of contributory negligence 37When considering the application of s 138(3) in relation to a "blameless accident" questions arise as to "the circumstances of the case" to which attention is to be directed and as to the significance, if any, to be given to the operation of the deeming provision in s 7B(1). The second question was addressed in Axiak (especially at [84]) but not by reference to the terms of ss 7F and 138(3). 38There it was submitted on behalf of the child that although the respondent driver was found not to have been negligent, he was deemed by s 7B to have been negligent. That negligence had to be weighed against the child's negligence in accordance with the approach in Podrebersek which was concerned with apportionment under legislation that required regard be had to the "claimant's share in the responsibility for the damage". In response, the driver submitted that notwithstanding s 7B, the deeming of the respondent to be at fault did not give rise to any "culpability" or actual departure from the standard of reasonable care. Those were the considerations to be taken in account. In the absence of any culpable conduct on his part, the respondent submitted that there could be no apportionment of liability by reference to any "comparative examination" of the kind referred to in Podrebersek and that once that approach was abandoned, the apportionment of responsibility should be assessed simply on the basis of the child's own conduct which was the "sole cause" of the accident and her injuries. 39The Court (Tobias AJA, Beazley JA and Sackville AJA agreeing) rejected the respondent's argument: [83] I would accept the respondent's submission that the exercise called for in Podrebersek can have no application to a case such as the present. Part 1.2 of the Act proceeds upon the assumption that the defendant driver is not at fault. Accordingly, comparisons of culpability and of the relevant importance of the acts of the parties in causing the first appellant's injuries are inappropriate. [84] I would also accept the respondent's submission that the deeming provision of s 7B(1) has no part to play in the present exercise. That is because it is simply impossible to determine the degree of fault which is to be attributed to the driver which, as submitted by the respondent, may be assumed to be minuscule. Although I accept that submission, it does no more than illustrate the inappropriateness of applying the principles in Podrebersek. [85] It follows that the concept of "contributory negligence" in s 7F of the Act has to be applied in a different manner to the usual comparative analysis of responsibility undertaken in personal injuries cases. This can be done consistently with the objectives of the legislation by inquiring how far the plaintiff has departed from the standard of care he or she is required to observe in the interests of his or her own safety. The reduction of damages under Pt 1.2 Div 1 by reason of contributory negligence will therefore be determined by assessing the extent to which the plaintiff departed from that standard. [86] It is for this reason that I do not accept the respondent's submission that the first appellant, being the sole cause of the accident and her injuries, mandates a finding of contributory negligence of 100%. On the respondent's argument, a plaintiff guilty of contributory negligence in a "blameless motor accident" case must always be the sole cause of his or her injuries with the consequence that in every case there would be a finding of 100% contributory negligence. The legislature could not have intended such a result. 40Tobias AJA then assessed the extent to which the first appellant's conduct failed to conform to the standard of care expected of a 14 year old girl in her position, and concluded that her damages should be reduced by 50 per cent. In doing so, his Honour did not assess the extent to which that failure caused or contributed to the accident, accepting that such a comparative analysis could not be undertaken, at least not by reference only to the causal consequences of culpable conduct. 41As I noted at the outset of these reasons, neither party submitted that Axiak was wrongly decided in relation to the approach to be adopted when apportioning responsibility for damage in a case such as the present. Accordingly I must address whether, as the appellant submits, the primary judge erred in her assessment by not applying the approach laid down in that case. 42Before doing so, I make the following observations directed to the possible operation of s 138 in a case where there has been some event which results in the driver losing control of the vehicle or having to take evasive action that causes an accident or incident. 43Although s 7B(1) provides that the claimant's injury is deemed "for the purposes of and in connection with any claim for damages" to have been caused by the fault of the driver, the application of that deeming provision is subject to s 7F which makes clear that s 7B "does not prevent the reduction of damages by reason of the contributory negligence" of the injured person. Section 7F preserves the application of s 138 to an award of damages for injury resulting from a "blameless motor accident". Section 138 provides that the law as to contributory negligence to be applied includes s 5S of the CL Act which overcomes the decision in Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; 72 ALJR 65 and permits a reduction of 100 per cent. 44Section 138(3) requires that where a finding of contributory negligence is made the damages should be reduced by such percentage as the court thinks just and equitable in the circumstances. In a "blameless accident", those circumstances include the fact that it is such an accident as well as the conduct of each of claimant and driver or owner which has resulted in that accident. Consideration of those circumstances, having regard to the purpose and object of Pt 1.2 (which is stated in the Second Reading Speech to provide compensation in relation to a motor accident where no one is considered to have been at fault), may require that a different approach be taken to that adopted in Axiak, at least in a case which involves a "blameless accident" of the kind referred to in the Second Reading Speech. 45Where the driver is incapacitated from continuing in control of the vehicle, but not in circumstances involving fault, an assessment of what is "just and equitable" as between the injured plaintiff and driver could have regard to their respective shares in the responsibility for the injuries, making the assumption that the driver had not been incapacitated or otherwise prevented from continuing in control of the vehicle. The conduct which caused the accident would be treated as having involved fault on the part of the driver and responsibility would be apportioned on that basis. The injured person would be put in the position he or she might reasonably have expected to be in as a result of another person's driving that in other circumstances would have involved fault. Such an outcome is consistent with a stated purpose of the "blameless accident" provisions being to provide for compensation in cases where the application of the "fault" principle has "unfortunate and even undesirable consequences" (Second Reading Speech at 21,403). 46The adoption of such an approach could require further consideration of whether, in relation to an accident in which there has been no conduct on the part of the driver which in other circumstances would have involved fault, the assessment should be undertaken in the manner laid down in Axiak.

Resolution of the issue of apportionment 47The primary judge reduced the appellant's damages by 100 per cent. Having referred to [83] - [87] in Axiak, her Honour set out five factors that were urged by the respondent as relevant to the question of apportionment. Those factors were: [63] ... (a) The plaintiff entered the roadway quickly with the obvious intention to cross; (b) She took no account of the traffic coming the other way (the truck) when entering the roadway - it must have been visible to a prudent pedestrian; (c) She did not bother to look as to whether the defendant was in her vehicle, whether the engine was running (as it must have been at some stage before the accident), whether her indicator was on, whether the traffic on her right had stopped for the defendant to leave the kerb - all signs of the defendant's proposed conduct; (d) She moved quickly onto the road and then suddenly and quickly stepped or ran backwards without looking or turning; (e) She stepped backwards into the side of the defendant's car with her foot making first contact with the tyre at a time when the defendant's car was barely moving off. 48Her Honour did not undertake any consideration as to the significance of each of those factors to that question of apportionment. After referring to Axiak, where a reduction of 50 per cent was made, she concluded: [64] ... The facts in the present case are far stronger [than those in Axiak], as the plaintiff is an adult who showed complete disregard for other road users and was the "sole cause" of the accident (Axiak v Ingram, supra, at [86]). [65] Accordingly, a reduction of 100% is called for in relation to the s 7B claim. 49Of the five factors referred to, those in paras (a), (b) and (c) were not relevant to an assessment of the extent to which the appellant's conduct which resulted in her injuries departed from that of a reasonable person in her position. It was the appellant's conduct, having reached the middle of the road, in stepping backwards very quickly, without looking, and into the respondent's vehicle which had to be addressed. 50In describing the appellant's conduct as the "sole cause of the accident" the primary judge took into account an impermissible consideration. The accident was the result both of the appellant's conduct in walking backwards and into the path of the respondent's vehicle and the respondent's conduct in driving her vehicle slowly from the kerb. The appellant's conduct was the "sole" cause only if that statement was directed to identifying culpable conduct which caused the accident and her injuries. In Axiak Tobias AJA (especially at [86], [88]) rejected an approach which took that matter into account. 51In the face of that error it is necessary to re-assess the apportionment by reference to the extent to which the appellant's conduct failed to conform with the standard of care expected of a person in her position. Such a person acting reasonably would not have walked backwards from the middle of the road and, at the very least, would not have done so without first having looked to make sure that it was safe to do so. To that extent the appellant's behaviour involved a significant departure from the standard of care expected. 52However, in the range of possible departures from that standard of care, the appellant's conduct is not an example of a worst possible case. It was not such as to make it inevitable that the respondent's vehicle would run over her foot. Although the evidence did not establish that the accident could have been avoided if the respondent had been keeping a proper lookout, in the same circumstances a different driver may have seen the appellant on the roadway and avoided the collision. Nor did the appellant consciously place herself in a position of danger or attempt to cross the road when her judgment was affected by alcohol or drugs. Taking these matters into account her damages should be reduced by 80 per cent.

Damages: ground 16 53The appellant challenges the primary judge's findings in respect of each head of damage other than past domestic care and assistance. It is convenient to deal separately with each of those challenges. Some are conceded by the respondent, either in whole or part.

Past out-of-pocket expenses 54The primary judge awarded an amount of $8,612.75: [93]. It is conceded by the respondent that at the trial, it was agreed that the amount which should be awarded was $10,000. It is accepted that the primary judge erred in not awarding that agreed figure.

Future out-of-pocket expenses 55The primary judge awarded $1,000 to cover "future occasional pain medication or a visit to a general practitioner": [124]. The principal issue in relation to this head of damage was whether some allowance should be made for the likelihood that the appellant would require a total right knee replacement at some time in the future. The primary judge rejected that claim, noting that the medical evidence described such an eventuality as a "mere possibility": [122]. Her Honour had earlier concluded that "there is no likelihood that the plaintiff will require a knee replacement": [120]. 56The appellant contends that the evidence justified a conclusion that there was a likelihood which was not speculative or fanciful that the appellant would require knee replacement surgery as a result of the injuries she sustained: Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 643 (Deane, Gaudron and McHugh JJ). The evidence referred to is that of Dr Cummine, an orthopaedic surgeon qualified on behalf of the respondent, and Dr Zeman, a rehabilitation specialist also qualified on behalf of the respondent. 57In the motor accident, the appellant sustained a fracture of the lateral tibia plateau of her right knee. In his report dated 8 November 2012, Dr Cummine noted: This was treated by open reduction and internal fixation and has gone on to union, with impairment related to wasting of the right thigh and right calf, a minor fixed flexion deformity of her right knee and some sensory disturbance of the lateral aspect of her right calf as a result of the surgery required to treat her fracture. 58The appellant relies upon the following opinion of Dr Cummine in his first report dated 15 March 2010, which was given in response to a question that was not in evidence or able to be inferred from the material in evidence: I have not seen recent x-rays of her knee. The fracture reportedly involved the articular surface of the lateral tibia plateau, and as such she is at some risk of developing premature post-traumatic osteoarthritis in the lateral compartment of her right knee. Should that condition progress, she may be a candidate for total knee replacement. 59After giving that opinion, Dr Cummine was provided with a copy of an x-ray report of the fracture dated 23 March 2010. In his second report of 13 April 2010 he noted, in relation to that x-ray, that there was "no comment made on the joint space to indicate whether or not narrowing is present, but given that there is no comment in regard to early signs of arthritis, I have presumed that the joint space height has been maintained." 60In his third report, dated 8 November 2012, Dr Cummine considered x-rays taken on 12 May 2011, before and after the surgery which removed the tibial plate and screws used to fix internally the fracture. He said in relation to those x-rays: Significantly, neither of [sic] the x-rays taken on 12.5.11 or at arthroscopy is there any record of osteoarthritis being present, particularly in the lateral compartment, and to a lesser extent the medial compartment, with the initial fracture involving both tibial plateaus. 61Thus the evidence showed that at a time more than two years after the accident, the risk of the appellant developing premature post-traumatic osteoarthritis had not materialised. The condition which Dr Cummine said might make the appellant a candidate for total knee replacement was not present. 62The evidence of Dr Zeman did not contradict that being the position. In his second report, following an assessment of the appellant on 16 August 2011, he said: She is at increased risk of post-traumatic osteoarthritis in the right knee and some associated intermittent pain in the knee. In the long term, she may require a right total knee replacement. More recent x-rays are required to determine the speed that this is occurring and statistical chances of this being required in her lifetime. On current information, the risk of this would be relatively low. 63Earlier in that report, Dr Zeman had noted that no x-rays or other investigations had been made available to him. He was not required for cross-examination. Nor was any evidence led in the appellant's case as to the results of any x-ray examinations taken after May 2011 or as to the likelihood of osteoarthritis developing at some stage in the future to a degree which might require that the appellant have a knee replacement. 64The only other evidence relied upon by the appellant was an opinion of her treating surgeon, Dr Hellman. The primary judge rightly rejected that evidence as of little or no weight. It did not disclose the factual basis for and reasoning justifying his opinion that the appellant "may require a knee replacement in the future". 65Having regard to Dr Cummine's evidence, the primary judge did not err in concluding that it was not established that there was a likelihood which was not speculative that the appellant would require a knee replacement and in assessing damages for future out-of-pocket expenses on that basis. 66The remaining difference between the parties in relation to this head of damage is whether future expenses should be assessed at $5,000, as conceded by the respondent, or $8,000, as contended for by the appellant. The difference depends on whether expenses should be allowed for orthopaedic surgeon reviews with x-rays once every two years so as to monitor any progression of osteoarthritis. The respondent accepts that some further allowance should be made for the possibility of the need for x-rays and orthopaedic advice. That allowance is included in the amount of $5,000. As the evidence did not establish that the appellant had developed osteoarthritis or that there was any real likelihood that it might develop more than two years after the fracture, I am not persuaded that any further allowance should be made for such examinations or treatments.

Non-economic loss 67The primary judge assessed the appellant's non-economic loss at $80,000. In arriving at that assessment, the appellant submits that the primary judge did not take into account two material matters. She also submits that the award of $80,000 was "manifestly inadequate". 68The two matters which it is said the primary judge ought to have taken into account are the possibility that the appellant may have required a knee replacement in the future and the psychological or psychiatric injury said to have been suffered by the appellant as a consequence of the accident. 69As to the first, the primary judge was correct in proceeding upon the basis that the evidence did not establish that there was any likelihood that the appellant would require knee replacement surgery. 70In relation to the second matter, the relevant evidence was that of Dr Parmeginiani, a medical assessor appointed by the Motor Accidents Authority for the purposes of Pt 3.4 of the MAC Act and Dr Lewin, a consultant psychiatrist qualified on behalf of the respondent. In a report dated 2 November 2010 Dr Parmeginiani diagnosed a mild adjustment order which he described as "in partial remission". In his first report dated 8 February 2010, Dr Lewin described that adjustment disorder as arising within the context of her pain symptoms and resulting in the experience of a combination of sleep disturbance, intermittent mood disturbance of a mild nature, lethargy and mild anxiety symptoms such as apprehension. Those reactive symptoms had remitted by the time he next saw the appellant on 6 February 2013. At that time he did not diagnose the appellant as having any psychiatric condition that related to the motor vehicle accident. 71In assessing the appellant's non-economic loss the primary judge took into account the fact of the mild adjustment disorder which later resolved: [82]. There was no error in that respect. Her Honour did not take into account that the appellant suffered any further or continuing psychological or psychiatric condition as a result of the accident. That also was in accordance with the evidence and did not involve error. 72It remains to consider the general attack upon the assessment of the award of non-economic loss. The primary judge relied on Dr Cummine's evidence generally in respect of the appellant's injury and disabilities. She found that the appellant had exaggerated her degree of disability and the pain that she suffered. That finding was based partly on surveillance film which contradicted the appellant's evidence as to her ability to walk briskly, partly upon the opinion of Dr Cummine and partly on the her having made inconsistent statements as to her financial circumstances when pursuing claims under the Victims Support and Rehabilitation Act 1996 (NSW) (now repealed) asserting maltreatment by her husband, her ex-defacto and her father and stepmother. 73The primary judge took these various matters into account. The appellant has a limited residual disability. In the circumstances her Honour's assessment is not shown to have been outside the reasonable range.

Past economic loss 74The primary judge awarded an amount of $10,000 as a lump sum to take account of the fact that the appellant was unable to work for a period of at least six months after the accident and a further three months after the surgery in May 2011. There was a difficulty in estimating the amount that the appellant might have earned during those periods because, as the primary judge found, "she [had] earned little or no money for most of her adult life": [97]. For that reason the primary judge awarded a "cushion amount" to reflect the fact that the appellant might have obtained work for some part of that period. 75The appellant's claim as made to the primary judge was for $49,920 being $240 per week for the period between the accident and the trial. The primary judge rejected that claim on that basis that the appellant was only incapacitated from working for a period of nine months. That conclusion was based on Dr Cummine's evidence that the appellant was fit for employment as a psychic or a cleaner, that was the work in which she was engaged before the accident. 76In this Court the appellant argues for an increase in the award for past economic loss to $27,606 which is said to equivalent to one half of her average earnings in the 2009 tax year allowed for the same period. That argument must be rejected. It assumes the primary judge erred in not finding partial incapacity. In view of Dr Cummine's evidence there was no such error.

Future economic loss 77The primary judge awarded a lump sum of $50,000. Her Honour did so on the basis that the appellant was almost 50 years old, had received a disability pension for 15 years and had few, if any, working skills. She was still capable of doing casual work of the kind that she was able to do before - when she worked sporadically as a cleaner or a psychic - and had an ongoing disability which made her fit for "light to moderate physical work". 78The appellant submits that if she lost half her pre-injury earning capacity from cleaning work for her notional remaining working life of 14 years, making the usual allowances for inflation and vicissitudes, she would be entitled to an amount of $58,037. However, as the respondent points out, there was no evidence to support an award of damages based on her being partly incapacitated from working as a cleaner or the scenario that she was otherwise likely to have worked for that period. The primary judge's assessment of a buffer sum was plainly within the range.

Future domestic care and assistance 79The primary judge made no allowance for future domestic care. The appellant claims an amount of $22,617. The respondent does not contest that claim.

Award of damages 80I assess the appellant's damages as follows: Past out-of-pocket expenses $10,000 Future out-of-pocket expenses $5,000 Non-economic loss $80,000 Past economic loss $10,000 Future economic loss $50,000 Past domestic care and assistance $9,100 Future domestic care and assistance $22,617 Total $186,717 81Those damages must be reduced by 80 per cent for the appellant's contributory negligence. The reduced amount is $37,343.

Conclusion 82It follows that the appeal should be allowed and that the appellant is entitled to a judgment for $37,343. Because of the amount of that judgment the parties should have the opportunity of addressing on the costs orders that should be made, both in relation to the costs of the trial and the costs in this Court. 83The orders I propose are:

1. Appeal allowed.
2. Set aside the judgment entered, and order as to costs made, by the District Court on 4 June 2013.
3. Judgment for the appellant against the respondent for $37,343, that judgment to take effect on 4 June 2013.
4. If the parties cannot agree as to the orders for costs to be made, they are to file and serve written submissions addressing the costs of the appeal and in the court below, those submissions not to exceed six pages. The appellant's submissions are to be lodged with the Registrar and served by 30 January 2015. The respondent's submissions are to be lodged with the Registrar and served by 13 February 2015. These questions are to be determined on the papers. 84LEEMING JA: I agree with Meagher JA's reasons and proposed orders. More generally, I agree with him that it may be desirable for this Court to revisit the approach stated in Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36. In the absence of argument, it is inappropriate to say anything more. 85ADAMSON J: I have had the benefit of reading in draft the reasons of Meagher JA. I am grateful for his Honour's summary of the issues on appeal and of the evidence and findings made by the primary judge. However, I have come to a different view as to the grounds relating to contributory negligence (relevantly referable to the footing that the accident is a "blameless accident"), the reasons for which follow.

Grounds 1, 2, 3, 4 and 6 86I agree with Meagher JA's conclusion at [19] that there was no error in the primary judge's finding that the respondent had not been shown to be at fault. This is sufficient to dispose of grounds 1, 2 3, 4 and 6.

Ground 8: contributory negligence (on the basis that there was fault on the part of respondent) 87Accordingly, it is not necessary to consider ground 8.

Grounds 9 and 10: contributory negligence (on the basis that the accident was a "blameless accident") 88In Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36 this Court decided that the word "person" in the phrase "not caused by the fault of any other person" in the definition of "blameless accident" in s 7A of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) did not, as a matter of construction, include the plaintiff. Contributory negligence had to be taken into account in any event: s 7F. The effect of this Court's construction of s 7A of the MAC Act in Axiak v Ingram was to obliterate any relevant statutory distinction between contributory negligence which was causal of the event itself (such as a pedestrian walking backwards on a busy road without looking, as in the present case), on the one hand, and contributory negligence which aggravated the damage suffered but which could not be said to be causative of the accident (such as a failure by a passenger in a motor vehicle to wear a seat belt), on the other. Had the word "person" been construed to include the plaintiff, s 7F would still have work to do but its operation would have been confined to non-causal contributory negligence, being the second category above. 89As the parties did not invite this Court to reconsider the correctness of Axiak v Ingram, I do not propose to say any more about the reasoning in this Court's decision, which was, of course, binding on the primary judge. 90Because Axiak v Ingram has determined that contributory negligence in s 7F includes fault by the appellant that caused the accident, this can be taken into account in determining what is "just and equitable" in s 138(3) of the MAC Act. I do not discern any error in the primary judge's finding of contributory negligence of 100%. I consider that when her Honour described the appellant's conduct as the "sole cause of the accident" at [64], her Honour should fairly be understood as referring to the appellant's conduct as amounting to the only cause that involved culpable conduct. It is self-evident that the accident would not have happened if the respondent had not performed the manoeuvre of pulling out from the kerb at the precise time when the appellant stepped backwards. To that extent, the respondent's conduct was a cause.

Ground 16 (damages) 91I respectfully agree with the reasons of Meagher JA in [53] - [79] as to damages. I am not satisfied that the appellant has made out any of the bases on which she has challenged the primary judge's assessment of damages except as expressly conceded by the respondent.

Conclusion 92I am not persuaded that the appellant has made out any of the grounds of appeal (subject to the issue of damages, which is addressed above).

Proposed orders 93I propose the following orders: (1)Appeal dismissed. (2)Order the appellant to pay the respondent's costs of the appeal, subject to any application for a different order being made within 7 days hereof.

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: 22 December 2014