Dregorius v Tisma

District Court of NSW|2020-06-23

Judgment

The plaintiff, who was born in Poland in August 1955, sues for personal injury damages consequent of her being run over and dragged beneath the defendants rolling car on the driveway of the defendant's home property on 19 May 2015. They were in the process of rolling it down his sloping driveway to the street. She was nearly 60 years of age. He was 77 years of age. Her claim in the proceedings is governed by the provisions of the Motor Accidents Compensation Act 1999 (the Mac Act).

THE EVIDENCE OF FACTS

The parties met between 2001 and 2003 when the plaintiff and her son lived at the rear neighbouring property to the defendant's home. At the time of the incident the plaintiff resided with her son at Falls Road, Wentworth Falls which was only about one suburb away from the defendant's home property, 28 Woodlands Road Katoomba at which the incident occurred. The plaintiff and the defendant had remained in contact over the intervening 12‑14 years.
About three months prior to the hearing the plaintiff and her adult son, Mark, were evicted from their rented Wentworth Falls home. From that time she had been homeless, living with him in her "old bomb" car and caring for him, they remained in the general area about Katoomba. Her son suffers significant disabilities including of a cognitive nature, mental illness and pancreatitis. At one point in the hearing he pushed through the courtroom doors to ask his mother for his midday medication. He appeared to be aged about late 30s and of average size. The plaintiff's G.P.'s clinical notes refer to her son (Exhibit J). He requires medication for his pancreatitis. His behavioural disabilities have caused him to assault the plaintiff. On occasion his behaviour has required Police intervention and admissions to Mental Health Units of hospitals. By agreement reached between the parties, no adverse inference arises from the plaintiff not calling her son to give evidence.
The plaintiff worked until about 2001 and since that time has been in receipt of a Disability Pension on account of her suffering anorexia nervosa.
The defendant was 77 years of age at the date of the accident and 82 years of age when he gave evidence at the hearing. Just before the hearing, on 27 April 2020, he was assessed at the Blue Mountains District Hospital, Emergency Department by Dr Tauseef Khan for his complaint of "amnesia" on his historical description of "concerns about short term memory loss that has been gradually progressing over the past 5 years and more of an issue in the past 12 months". Dr Khan provided the defendant with a referral to Dr Katriona Herborn, General Practitioner. No further medical evidence concerning the defendant's amnesia was presented by either party.
Exhibit A is a Street view photograph of the defendant's home taken at about the time of the incident and in particular, the driveway which was the scene of the incident. The drive way to the right of centre in the photograph is the subject one. The parties agreed that the gradient of the driveway was "slight" (transcript, page 147, line 40- page 148, line 25). The blue car near the defendant's house at the top of the driveway is probably his car (the plaintiff said so and the defendant was not sure) and is depicted in approximately the position at which the plaintiff and defendant engaged with it up to the point of it commencing to roll down the driveway. The driveway is shown to be quite long. At about the midpoint, to the right of the driveway, the defendant's red box trailer can be seen. Lower down the driveway, closer to the camera than the yellow topped garbage bin, the defendant's letterbox at the foot of which are rocks and bricks, can be seen. That place has some significance because the defendant ceased restraining the roll of his car and moved to the side out of its way because, being on the rear driver's side corner, he was concerned that he would trip over those rocks and bricks. The front boundary of the defendant's property is at the low garden wall below the shrubbery delineating his property from the Council verge. The evidence did not include any measures or survey of the driveway or of the defendants property. Lay evidence was not given of the measure of the length of the driveway. The best evidence of the physical location is the exhibit A photograph. The above stated facts were not contentious.
The defendant owned a blue, 1984 Mazda motor vehicle. Whilst he could not recall how long he had owned the car, his son Vladimir gave evidence that the defendant had owned it for about 1 to 2 years prior to the incident. The defendant purchased it from a neighbour at a garage sale. The defendant kept it registered through inspections at his local Katoomba Automotive Services: transcript, page 111, line 27. There is no expert evidence of the state of the car. The plaintiff described it as a "bomb". It was registered, having been inspected for that purpose in September 2014. Specifically, there is no evidence to indicate that either its automatic gear operation or its hand brake was defective.
The defendant had never learned to drive and did not hold a driver's license. He had never driven his car. On the whole of the evidence the defendant did not even start his car to run the engine in order to maintain it during long periods when, unused, it stood chocked by bricks at the tyres.
The defendant owned the car because it was practical for him to do so. When he needed personal transport he would ask others to drive it and, this included whilst pulling his box trailer. One such occasion, prior to the incident, was when the plaintiff drove it whilst towing the box trailer, in order to transport for him a mattress. The defendant recalled another occasion when the plaintiff borrowed his car to take it shopping. He would ask others to drive it. His evidence of use of his car, given in chief was:
At page 102, lines 30‑38: "Q. Before this day 19 May 2015 how long had it been sitting there and not moved? A. Sitting for the long time because what really happened, I bought that car and I bought box trailer to get friends of my son to collect material to build a house. And we go to place here, place there, windows, doors and all as well. And we collect that and bring to my place usually son or some friends do driving and that car was standing there for that particular..(not transcribable)..because I not drive and time to time I need to bring material in that case car be no use just sitting there, you know."
The defendant was unable to recall when his car had been last driven or its engine run prior to the incident; however the evidence was that he considered it good for the engine that it be run because it was parked for long periods at the top of his driveway. His practice was to ask his son Vladimir to sometimes start the car when it had stood for a long period. Vladimir's evidence was that he would start his father's car and let it run for 15 minutes to one hour, where it stood on the driveway, on the occasions that he visited the defendant. Vladimir described his practice as placing the key in the ignition and starting the engine. When he finished he took the key out of the ignition. He had not lived with the defendant since about 1985. He drove the defendant's car on only one occasion. He said that he would be unable to recall if the last time he drove the defendant's car was in 2015 before the incident or even as long ago as 2014 or 2013: transcript, page 133, lines 15-24. He had not started it or driven it for a period of months prior to the incident. He was not more precise than that. Vladimir gave the following evidence which was not challenged during cross-examination:
At page 131, lines 40-50 to page 132, lines 1-8: "Q Can you tell us just exactly what you did when you'd got there to start the engine for him? A. Basically, put the key in the ignition and start the engine. Q. How long did you run the engine for? A. 15, 20 minutes, half an hour. Q. When you'd finished running the engine, whether 15, 20 minutes or half an hour, what did you do to finish up? A. Take the keys out of the ignition. Essentially, there was nothing else to do cause the vehicle was in park with the handbrake on. I didn't actually drive the vehicle on those times that I started it. Q. When you had finished running the engine, did you check what state gears were in or not? A. No need to. It was in park to start with. I checked it before I started it. Q. What about the handbrake? A. The same thing."
The defendant said that it was his regular practice to place brick chocks behind the wheels of the car. Vladimir recalled that he had never seen the car without bricks chocking the wheels, on the driveway and that the one time he did drive it he had to remove the bricks in order to take the vehicle away: transcript, page 132, lines 40-50. Vladimir conceded that he would not know if anyone else had driven the defendant's car between when he last started the engine and the date of the incident: transcript page 133, line 40.
The plaintiff had always owned a car and had been driving for 40 years. Her evidence, which I consider to be not inconsistent with the defendant's evidence, was that on occasion when he needed transport, the defendant asked her to drive him in his car and she had also borrowed his car on occasions when her car was off the road for mechanical repair. On the whole of the evidence, the plaintiff did not have frequent or even regular use of the defendant's car. In total, she had previously driven his car only a few times. Given that they had known each other for longer than only one or two years prior to the incident, it is not clear that it was the same defendant owned car which she had driven on each of those occasions.
It is common ground that the plaintiff, with her son, Mark, and dog, Richie, attended the defendants home on the morning of 19 May 2015 after the plaintiff left her car at Katoomba Automotive Services. That business was only about 50m from the defendants home. It is also common ground that following two or so failed attempts by the plaintiff sitting in the driver's seat to start the engine and after the chocks were removed, the parties joined in rolling it backwards down the driveway for the purpose of attempting to start it on the level surface of Woodland Road. Only the plaintiff had sat in the driver's seat before rolling the car. There is no dispute that during the rolling of the car each of them was positioned behind it, no one was in the driver's seat, and the defendant jumped away from his position at the driver side rear corner before the car reached the rocks and bricks at the letterbox of his property. The plaintiff remained in the middle behind the car and it rolled over her. It is an undisputed fact that during the rolling of the car a taxi was approaching along Woodland Road and that it swerved so as not to collide with the defendants rolling car as it crossed that road. The defendant's car came to a stop in a trench on the opposite side of the road with the plaintiff badly injured beneath it. She had been dragged down the remainder of the driveway and across the road.
The defendant did not pay attention to whether or not the handbrake was on and whether or not the gear lever was in the Park position. It was agreed that when the car rolled down the driveway, the gear lever was in the Neutral position and the handbrake was off.
The plaintiff said that she was visiting the defendant with her son and dog, to say hello and because it was cold, whilst her car was being checked over at Katoomba Automotive Services. The defendant said that the plaintiff attended his home in order to borrow his car. The parties contested the fact of the plaintiff's purpose of use. They submitted that it was relevant to who was "in charge" of the car during the "motor accident".
I set out what I consider to be the plaintiff's very plausible evidence (in chief, transcript page 30, line 47 to page 31, line 15): "Q. Now, on the day - the accident happened in May of 2015, where were you going first thing? A. went in the morning - the day before I was nearly killed, I went to the mechanic which lives next - 50 metres from Tisma; Mr Tisma, and to give my car for proper check-up because I have to take my son to specialist to Sydney, to Dr Pavey. Q. You left the car there at the mechanics. Is that right? A. Yes, I was there around in the morning I think between 9 and 10 o'clock, because he told me I do your car first, he knew me, I have to take my son to specialist. He does that all the time in the past. And I left my car there, and he said he won't be long; could be one hour or so, and I said to Mark, it was cold, and our dog was still alive, because dog was lost, also because of that - what happened on Mr Tisma place, in his car. But his car then - I said to Mark and my dog, we just walk to say hello to Mr Tisma, one hour and we come back, take our car. We went there-- Q. Did you do that? Yes? A. Yes."
A central dispute between the parties therefore is whether the plaintiff engaged with the defendant's car for the purpose of borrowing it or merely to start and run the engine because the defendant requested that she do so during her visit to his home.
An insurance investigator, acting in the interests of the defendant, recorded in a statement signed by the defendant on 15 June 2015 (Exhibit 2) the following version of events in which, in general expression, he described the plaintiff telling him she needed to get medicine and shopping, in response to which he offered to loan her his car and she accepted: "[15] On 19 May, 2015, Lucy Dregorius came to see me and told me that he (sic) car was off the road having mechanical repairs at the end of the street, at Katoomba Automotive Services. She was telling me that she had to get medicine and shopping. Her son Mark who is about 35‑40 years old is a very sick man and he was with her and they had a large dog. [16] I offered to loan Lucy my vehicle to drive and she accepted my offer."
The plaintiff adamantly denied borrowing the defendant's car. Her evidence in chief, in regard to which she was not shaken in cross‑examination, was as follows (transcript page 31, lines 22‑27): "Q. When you went in, did you just have some friendly conversation first. Is that correct? A. We just say hello, you know, like always, "How are you?" And I said to him, I gave my card (sic) to David, to mechanic, because I have to take Mark tomorrow to specialist, and the car will be ready soon. And he - he ask me to start his car. He gave me the key, I went to the car, I can't even start it…"
Also at page 31, lines 45‑50: "A. I couldn't start it. I took the key out. I tried to start it, I couldn't. I saw the bricks over the wheels. I couldn't start it. I went back to the house and I gave him key back and I said, "I can't start it. Just leave it. My car will be ready soon." And he said to me, he tried - he said, "Try again." I went again, I can't start it, I did the same thing. I gave him key back, I said, "I can't start." Then when I gave him second time key back, he said to me…"
And at page 32, lines 33‑37: "A. …"What about if we push the car outside on the Woodlands Road where it's more level." Then we all went from out - inside, outside. Q. I understand. On the second time? A. That's correct. With the dog as well." (See part of extensive cross‑examination in which the plaintiff is unshaken: transcript pages 53‑62 generally, but especially at page 52, line 27 to page 59, line 26)
During cross‑examination, the plaintiff did not waiver in her evidence that she was not planning on driving anywhere on 19 May 2015 after return of her car, except to her home at Wentworth Falls because she had a long drive the next day to the appointment in Sydney. She said that, having her "old bomb" car checked over before departure when she had to visit Dr Pavey in Sydney and return for her son, was her practice. She agreed that when visiting the defendant, she spoke of her son's medical needs and the appointment to visit Dr Pavey. Both the plaintiff and the defendant gave evidence that he knew of the plaintiff's son's medical illness. Characteristic of the plaintiff's presentation as a witness is the passage at transcript page 54, line 40 to page 55, line 8, where she volunteered against interest a speculative thought that the defendant might have intended that he be driven somewhere; although her evidence was that he did not ask for that. Further, she repeatedly answered that she did not know why the defendant wanted her to attempt starting the engine on Woodland Road. The defendant acknowledged that it was his idea that the car might start there because of fuel to the engine when the car was on a level surface and not the slope of his driveway.
I am not persuaded by the defendant's challenge that it was "inherently illogical" (Defendant's Outline of Submissions, MFI 8 at [31]) for the defendant to ask the plaintiff to start his car repeatedly if the plan was not for her to drive it. Indeed, that he would do so on her visit after, on his evidence, the car having not been run for a long time, was entirely consistent with his practice of asking his son Vladimir to start it when Vladimir visited: Vladimir's evidence in chief, transcript page 131, lines 21‑45. It was also consistent with the defendant's evidence that he wanted the engine run because it would stand for long periods. In the above referenced passage of Vladimir's evidence, he had not had any connection with the car "in the few months" preceding the incident.
The parties contested the following questions for determination of the issues of who was in "charge" of the car, what was the "use or operation" of the car which caused the plaintiff's injuries and who was at fault: 1. Did the plaintiff move the gear lever from the Park position to the Neutral position and release the handbrake when she was in the driver's seat? 2. What was the sequence of events from when it would not start to the rolling of the car?
The determination of all factual issues requires assessment of the credibility of evidence given by each of the plaintiff and the defendant. This is not much assisted by circumstantial evidence. No one from Katoomba Automotive Services gave evidence, nor were documents of the service of the plaintiff's car tendered. There was no evidence of urgency of the plaintiffs sons needs for medication or the plaintiff's needs for shopping which would indicate that the medicines and shopping had to be obtained that day. The plaintiff denied that she intended driving to obtain medicine or to shop.

ASSESSMENT OF CREDIT OF WITNESSES

I believe that it is helpful to expose my consideration of the truth and accuracy of the evidence given by the plaintiff by commencing with some further selected passages of her evidence, for illustration. The hearing occurred five years after the incident. The plaintiff was not referred to any statement contemporaneously made by her.
Consideration of the question of whether or not the plaintiff moved the gear lever from the Park position to the Neutral position and released the handbrake commences with investigation of the position of those controls when she first entered the driver's seat attempting to start the engine. The above referred to evidence was that other people, including the defendant's son and friends, drove his car. There was no evidence as to whether those persons were accustomed to driving only automatic cars or were in the habit of driving manual cars. It is common knowledge that drivers of manually geared cars do not have a gear lever "Park" position for selection. With the exception of the defendant's son Vladimir, there was no evidence of the practice of those individuals as to the positions in which they left the gear lever and the handbrake on their leaving the car at the top of the defendant's slightly sloping driveway. The circumstances were that it was regularly left to stand for long periods and always secured by chocks at the tyres.
The defendant submitted (closing written submission: MFI 8 at [19]) that on the balance of probabilities the gear lever was in Park and the handbrake was on because that was the condition those controls were left in whenever Vladimir ran the engine to keep the battery charged. The defendant pointed to the fact that the battery remained sufficiently charged to turn the motor over during the plaintiff's two attempts to start the engine. However, the persuasive strength of that submission is diminished by the following facts: 1. The car was always chocked against rolling and therefore the last person to operate the controls, whether to drive the car or to just start the engine, would not have sensed the car rolling away in the event that they exited it when the gear lever was in Neutral and the handbrake off. 2. There was no expert evidence of how long it would take for the charge retained in the battery of the defendant's car to have drained so as not to support those attempts to start. Indeed, evidence of how long the engine had been last run or how far and in what conditions the car had been driven would be required for an expert to know the level of charge in the battery before the car was last left to stand, as well as the state of the battery. 3. The evidence was that the car had not been run at least for months.
When first asked during cross-examination about his knowledge of other persons driving the car, Vladimir gave the following non-responsive and voluntary answer which in my opinion revealed a want to argue against the proposition that the car had been left on the driveway whilst not in Park and without the handbrake on prior to the incident: "Q. You don't know if that car had been driven by someone else. I'm not suggesting that your father drove it. A. Did you slink up there and take it out of gear possibly and put it in neutral or what - what are we trying to say here?"
The plaintiff's following answers to questions putting that she operated the gear lever and handbrake, showed her willingness to concede against interest logical hypotheses pressed by Senior Counsel for the defence, when she was unable to recall what in fact she did do:

Cross‑Examination At page 62, lines 1-50: "Q. Now, when you sat in the driver's seat-- A. Yeah. Q. --you could see that the handbrake was on, couldn't you? A. Probably I see the handbrake on. What has to do anything to - how can you push that car on the Woodlands side was more level with the handbrake on? Common sense. Q. And so did you take the handbrake off? A. I don't remember that. Q. Well, is what you're saying that in your view-- A. Probably I did because how can you push the car on the Woodlands Road with the handbrake on. Q. Oh, so-- A. Maybe car will rollover anyway, even if there was a handbrake because it's a steep hill. It probably will slide on anyway. Q. Just one moment, so do you agree now that you probably took the handbrake off? A. I don't remember that. Q. Well, you said it was just common sense-- A. Maybe. Q. --that you wouldn't be able to roll the car? A. That car will slide anyway from that hill. Even if it was handbrake on. Q. So, you could see from the driver's seat whether the handbrake was on or off, couldn't you? A. I don't remember, I wasn't in the car for god's sake. I went out of that bloody car. Q. But you sat in the car to turn the key and tried it? A. That was bit earlier and when he suggest to push the car on the Woodlands Road, I wasn't driving, I wasn't in the car. Q. You said it just a minute ago, that it was just common sense-- A. Of course. Q. --to make sure the handbrake was off-- A. I don't know Q. --if you intended roll the car? A. Even if it was on. Even if it was on, sir, they will roll over because it's too steep. Q. You took the handbrake off, didn't you? A. I don't remember that. That this old bomb could be many things wrong." Also at page 64, lines 12‑29): "Q. If the handbrake was on and then it was off, the only one-- A. Maybe handbrake was on. Q. The only one who could have moved the handbrake was you, wasn't it? A. How do - how do you know I moved the handbrake? Q. I'm only asking you whether anybody else could have done it and the answer is no, isn't it? A. I don't remember if the handbrake was on or off, I don't remember if I changed the gears when he suggest to roll the car on the Woodlands Road. Q. Except that you said it was only common sense that if you had to-- A. It is. Q. --roll the car you had to put the car in neutral and take the handbrake off? A. You can't - you can't have - you can't have - how can you push the car when you have a - even if the brake was on in that condition, living in the mountains the car will still slow down on the hill." Also at page 81, lines 3-17: "Q. You made the story up-- A. No, I didn't. I did not. Q. Because you know-- A. No. Q --that it was you who took the handbrake off? A. No. Q. It was you-- A. I don't give a damn who took the brake off. Q. I want to suggest to you-- A. That was his car, his idea on his place and his 100 per cent fault, he ruined the..(not transcribable)..life."

In my view, her answers of "Maybe" and "probably" she did move the gearstick and release the handbrake were not concessions that she did. On the whole of the evidence it was apparent that she simply did not recall either doing so, or the positions the gear lever and handbrake were in when she entered the driver's seat.
The defendant submitted that the plaintiff gave evidence of recollection of all important facts except whether or not she moved the gear lever from Park to Neutral and released the handbrake. This was not a fair criticism of the plaintiff's evidence. A hotly contested point was whether the plaintiff was standing near the front of the car or pushing at the middle rear of the car when the chocks were removed. It was at that point it commenced to roll. On the defendant's case, the plaintiff was behind the car pushing with him to release the pressure on the front (last of 3) wheel chock in order to enable the plaintiff's son to remove it. The plaintiff gave evidence that she could not recall the order in which the chocks were removed but did recall that she did not handle any of the brick chocks. She said she was at the front, not the rear, when she observed the car start to roll (transcript page 68, lines 16‑19): "Q. You can't do that standing in front of the bonnet, can you? A. He did that and probably Mick took - when Mark took that first - I don't remember who took first the - the bricks. But I saw the car rolling down." Also at transcript page 69, lines 31‑48: "Q. The front brick was still in place. A. I don't remember what was there in place but I didn't touch the bricks-- Q. I want to suggest to you-- A. ..(not transcribable).. Q. I want to suggest to you that you said to Mark-- A. To remove front brick. Q. Exactly. A. But when I don't know. Q. Wait, and I want to suggest to you that when Mark tried to remove the front brick he couldn't. A. If he couldn't, he wouldn't but he did. Q. I suggest to you that he couldn't and at first he didn't, do you agree? A. No."
Despite the volatility in her manner of answering, that she was willing to make such concessions which were obviously against interest, convinced me that she was not untruthful. Again, she impressed as an unsophisticated person and a raw witness. Whilst discourteous and prone to an assertive style of answering, she was an open witness who did not shield herself behind falsity. Her evidence provided no positive proof that the gear lever was in Park and handbrake on when she entered the driver's seat. She was only acknowledging that they needed to be in the Neutral and released positions respectively for a car to roll.
It is convenient to commence my assessment of the reliability of the defendant's evidence at the point of defence counsel's submission concerning the defendant's contemporaneously made statement, taken by an insurance investigator, dated 15 June 2015 (Exhibit 2).
It was submitted that the defendant's statement being contemporaneous with the events, presented the best evidence and therefore inconsistency with the plaintiffs evidence showed the unreliability of her evidence given in court five years afterward. The defendant also submitted that the defendants oral evidence was generally consistent with the Exhibit 2 statement and for that reason ought also be preferred to the plaintiffs evidence of events on the basis of credit.

FURTHER FACTUAL FINDINGS

The above consideration of the recount of events given by the parties leads me to the following further findings of fact, on the balance of probabilities: 1. At about 9am on 19 May 2015, the plaintiff delivered her old car to Katoomba Automotive Services so that it could be checked over because she intended to drive her son to a specialist medical appointment in Sydney on 20 May 2015. The mechanic told her that the work was expected to take about one hour. 2. Whilst waiting for her car, the plaintiff, her son and her large dog visited the defendant at his nearby home during which visit she told him things about the state of her old car and that it was being attended to by the mechanic, of shopping for her son's medications and that she expected the mechanic would deliver her car to the defendant's home in about one hour. 3. When the plaintiff attended the defendant's car at the top of the drive it was not agreed between them that she would borrow it. I find this, accepting that it is likely that at some point in their conversation the defendant told her that his car was available to her, if she wanted to make use of it. She had both driven it for him and borrowed it on prior occasions. 4. The Defendant asked her to run the engine and for that purpose she accepted the key. 5. The defendant initiated the plan to roll the car to Woodland Road for further attempts to start the engine and the plaintiff chose to join in that task. 6. The car was secured against rolling with brick chocks behind three tyres, as was the defendant's regular practice because it was left to stand for long periods, unused near the top of his sloping driveway. 7. The starting of the engine and use of the car by persons other than Vladimir infers that the gear lever and the handbrake would have been in positions as left by any of a range of persons who did not give evidence and the defendant took no notice of the positions in which those controls were left. I find Vladimir's evidence of his own practice of leaving the gear lever in the Park position and the handbrake engaged was given by an argumentative witness, defensively of himself, and mindful of supporting his father. The evidence does not infer that Vladimir was the last person to operate the controls. The evidence does not establish a positive inference that the gear lever was in Park and the handbrake engaged when the plaintiff attended it on 19 May 2015: Jones v Dunkel (1959) 101 CLR 298 at 304‑305 per Dixon CJ. As was stated by Kitto J at 205: "One does not pass from the realm of conjecture to the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed." 1. Consideration of the factual inference in (7) deserves the following further observations: 1. The common experience of all persons who had run the engine or driven the car would have been that it was secured by chocks behind the tyres. These facts deflate the influence of what might be thought to be common practice of automatic car drivers to engage the Park position and pull on the handbrake when parking on a slope. 2. It would only have taken the last of those persons to have left it with the gear lever in Neutral and the handbrake released, for the plaintiff to have found it that way. 3. Given the defendant accompanied users, his regular practice of chocking the wheels when they parked, might have caused a driver or drivers to think it not necessary to place the gear lever in the Park position and engage the handbrake to secure it from rolling; 4. A driver might think it proper to exit the car leaving the gear lever in the Neutral position and the handbrake off, if that was its state when they entered it out of concern that this was the regular practice for its long‑term storage between drives, or the defendant's desired practice; 5. Persons merely running the engine may have been less concerned with whether or not the gear lever was in the Park position and the handbrake on when they exited because the car was secured against rolling by the chocks and the engine would turn over when the key was turned; and 6. The practice of engaging Park would not be as strong a habit for drivers of manually geared vehicles. [Note: The above hypotheticals are posed in the absence of evidence of features of the car such as whether or not the key could be removed if the gear lever was not in the Park position.] 1. The defendant bore the onus of proving that the plaintiff manipulated the gear lever and handbrake as a component of his case that she was the "driver" and his defence that she was contributorily negligent. In the absence of evidence; I am not satisfied that the plaintiff did those things.
Neither party put the case on the basis of only the gear lever being in the Park position or only the handbrake being engaged; although the result would be the same.

APPLICATION OF THE MAC ACT - SECTION 3A

It is convenient to deal firstly with the defences raised on application of definitions under s 3 Mac Act and application of s 3A, because they are more technical in nature than in the plaintiff's case.
Whilst some factual findings made to this point are peripherally relevant to questions of whether or not the plaintiff was the "driver" and whether the plaintiff or the defendant was "in charge" of the car; the fact is that the car could not roll until the chocks were removed. It was the defendant's plan to roll the car to Woodland Road. Indeed, this was the case whether or not my conclusion that the plaintiff was not borrowing the car, is correct. That the car could not roll until the chocks were removed invites consideration of whether or not the defence submission that had the plaintiff moved the gear lever from Park to Neutral and released the handbrake (which facts I have not found) is of real significance. The defendant put that by doing so she created "a dangerous situation" of the car running out of control within the meaning of "motor accident" definition s 3(d).
In AMP General Insurance Limited v Maguire (2004) 59 NSWLR 580; [2004] NSWCA 64, Handley JA, was required to consider who was "in charge of" a motor vehicle for the purposes of s 3(1)(b) of the Motor Accidents Act 1988 (NSW), which terms were identical for present purposes to the definition of "driver" in s 3 Mac Act. At [13] and [14], his Honour found that the person who physically initiated the process which caused the vehicle to move, although when it did it was out of control, was a "driver" as was the person who instructed that physical initiation because he remained "in charge". There can be more than one driver of the vehicle at the same time: Handley JA at [11].
In the present case, removal of the brick chocks was the physical action which initiated the roll of the car. Handley JA in Maguire's case referred to Shortland City Council v GIO (NSW) [1973] 2 NSWLR 257. Applying the rationale of that case here, whether or not the plan was for the plaintiff to merely run the engine or for her to drive the car is peripheral. Further, the purpose for which the car was rolled is merely peripheral. In this case, gravity was the force propelling the car during the roll from which the plaintiff's injury resulted. Because removal of the chocks initiated that movement, the act of the person who deliberately or inadvertently placed the gear lever in Neutral and released the handbrake, is incidental because it did not cause the car to move. Also incidental to determination of the question of who was "in charge" are the facts that the defendant was the owner and that the plaintiff was an experienced, licenced driver. The plaintiff's submission that, as owner, the defendant could have called a stop at any time and the plaintiff would have had no option but to comply, is likewise a reference to something incidental because, on the evidence, the parties joined in the process of the plan to roll the car. The plaintiff was free to decline to participate.
Here, the fact which determines who was "in charge" is the removal of the bricks. Removal of the bricks was a mutual action of the parties. It matters not who handled which brick or the order in which they were removed, in my opinion. The defendant's evidence, particularly the sequence of events described at [18] of his statement made 15 June 2015 (Exhibit 2) is the only evidence of the sequence in which the chocks were removed. It is inconsistent with the plaintiff's recollection that she did not handle the brick chocks. The defendant's evidence in Exhibit 2 at [18] and orally (transcript page 65, lines 15‑17) was that the plaintiff's son removed the last brick, it being behind a front tyre. The plaintiff's evidence was not contra. But these facts are only incidental to the question of who was "in charge" because removal of the brick chocks was only the physical mechanism of their common action.
For the same reasons, it matters not whether the plaintiff was situate at that time at the front of the vehicle, or pushing from the rear of the vehicle, those competing scenarios, being the plaintiff's and the defendant's versions of events. Given the plaintiff's son's disabilities, including psychological and cognitive deficits, that she voiced requests for to him to participate rather than the defendant doing so would be expected and not evidence contrary to mutual action. Although, this was not a point taken up in the evidence.
The defendant was "in charge" of the car when he asked the plaintiff to start the motor but this did not cause the vehicle to move. The plaintiff and the defendant were "in charge" of the car when the plaintiff turned the key attempting to start it at his request. The defendant was "in charge" of the vehicle when he asked the plaintiff to help him roll the vehicle. But those events did not cause the car to move.
Applying here, the explanation of "in charge" for the purposes of the definition of "driver" exposed by Handley JA in Maguire's case supra at [11] to [15]; the plaintiff and defendant divergent versions of what occurred share the common fact that they jointly participated in the removal of the brick chocks which action commenced the roll, albeit apparently neither of them expected a roll of momentum beyond their capacity to arrest and control.
Unlike the situations of Mr Gooch, who had left the car in gear, and Mr Deas, who on Mr Gooch's request turned the ignition key, in Maguire's case; here, each of the plaintiff and the defendant knew, that removal of the chocks would initiate freedom of movement of the car on the sloped driveway. Neither party submitted that the plaintiff's son was by any degree "in charge", which approach was appropriate in circumstances of his limited personal capacities not contested. In any event, in my opinion, his action was of the simplest physical form and would not equate, for instance to the level of participation of the mechanic Mr Deas turning the ignition key of a car under service in the Maguire case.
Unlike in Maguire's case, both the plaintiff and defendant were physically attending to the car as it moved during its use or operation when rolling it down the slightly sloping driveway. They were both then "drivers" of it because they shared "charge" of it. The unintended consequence of gravity causing the car to roll with momentum beyond that which they could completely control did not change that. As was stated by Handley JA at [18] of Maguire: "the apparent difficulty that the liability did not occur while the vehicle was being driven is in my judgment resolved by a purposive construction of the section, bearing in mind that runaway vehicles are capable of causing injury. No‑one is actually driving such a vehicle but it is a runaway vehicle because of fault in its use or operation at some earlier point of time by a person who was then the driver." This reasoning is equally applicable here.
The statutory purposes of s 9 of the Motor Accidents Act 1988 (NSW), of which his Honour spoke, are not for present purposes, different to the statutory purposes of s 3A Mac Act. Thus, I find the plaintiff's claim is correctly brought against the defendant who was with the plaintiff "in charge" of the car for the purposes of the Mac Act. Liability arises for loss caused by his fault as "driver" in the motor accident.
If I be wrong in my determination that the evidence does not permit a finding of the positions of the gear lever and handbrake when the plaintiff entered the vehicle; and in the event that I should have found that she manipulated those controls whilst in the car; the point is peripheral or at best incidental to the issue of who was "in charge" because the car was then secured against movement by the chocks. I accept that on the defendant's case the plaintiff was "driving", at that time, if she manipulated the controls in that way; but if found, that would not have been the relevant "driving". This is because in that situation she would not have exercised any relevant control of the car but merely left it in its status of secured by the chocks. Nothing that she did at that stage was relevant to its movement. She exited the secured car and returned the keys to the defendant before commencement of the event of using the car by rolling it.
Nor was the plaintiff's injury caused by the "fault" of her having done so within the meaning of s 3A(1)(c) "running out of control" or (d) "dangerous situation", because that driving did not cause the injury. The injury could not be said to be "a result of and…caused…during" the event of her manipulating those controls because the vehicle could not roll whilst secured by the chocks.
As was said by McHugh JA in Insurance Commission of Western Australia v Container Handler Pty Ltd (2004) 218 CLR 89; [2004] HCA 24 at [53]: "while the repair of a vehicle during the course of a journey may fall within the meaning of "use", it clearly does not amount to the "driving" of the vehicle. Nor can it be said that the preceding acts of negligence by Container Handlers constituted the driving of the vehicle…it would mean, for example, that an owner is driving the vehicle for purpose of the Act when he or she fails to inspect repair equipment before the commencement of the journey which gives rise to the relevant injury".
The operative cause of injury was not the position of the gear lever or the handbrake but rather, wholly the removal of the wheel chocks: Allianz Australia Insurance Limited v GSF Australia Propriety Limited & Anor (2005) CLR 221 568; [2005] HCA 26 per McHugh J at [59]‑[61]; Gummow, Hayne and Heydon JJ at [91]‑[95].
This is not to say that those defendant allegations of fact and submissions concerning the plaintiff's manipulation of those controls of the vehicle and of exiting the vehicle with the gear lever in Neutral and the handbrake released, if accepted, would not have amounted to the plaintiff having released the car's own controls against it rolling, the effect of which action continued during the rolling in which the injury was ultimately caused; but rather her having done so was not operative during the relevant use because the rolling could not have occurred without removal of the chocks. The Plaintiff's injury was not caused by what the defendant claimed to be her fault in failing to operate the controls in that way.
In the circumstances, there was no duty requiring the plaintiff to move those controls from those positions in which she found them. To consideration of the above referred to case law, I add that the defendant's reference to the definition of "driving" in the Container Handler's case is to be employed with caution being mindful that the words in the Western Australian Act were "directly caused" and s 3A Mac Act employs "is caused by": Bayon v Bayon [2014] NSWCA 434 per Basten JA at [15]‑[16]. Similarly, statutory provisions construed by the High Court in the Allianz case are no longer to be found in the definition of "injury" nor, since its removal from s 3A, is the phrase "if and only if" used at all: Bayon v Bayon [2014] NSWCA 434 per Basten JA at [16].

CAUSATION - DEFENDANT SCENARIO (NOT FOUND)

If the defendant's allegations and submission regarding fault of the plaintiff in relation to manipulation of the gears and handbrake be accepted; then, that fault was not a necessary condition of the occurrence of harm because the car would not have rolled but for removal of the chocks: s 5D(1)(a) CLA: Bayon v Bayon [2014] NSWCA 434 per Basten JA at [17]‑[19].

PLAINTIFF FAULT - DEFENDANT SCENARIO (NOT FOUND)

In my opinion, for the purposes of s 5B CLA, the plaintiff was not at fault in failing to exit the car whilst the gear lever was in Park and the handbrake engaged. The test of negligence is whether or not she failed to take reasonable precautions (s 5B(1)(c), s 5B(2) CLA). The test has never been: was there more she could have done: David Jones Ltd v Bates [2001] NSWCA 223.
Applying s 5B(1): 1. The risk that the vehicle would roll was not then foreseeable because it was secured by chocks under three of its tyres; and 2. The risk of it rolling was truly insignificant; and 3. In the circumstances, a prudent driver in the plaintiff's position might not have taken that precaution.
In my opinion, the non‑existent risk that the car would roll because it was secured by chocks, her attention being only to starting the engine, and the unusual circumstances of the defendant's long‑term storage practice; weigh against finding for the purposes of s 5B(2) that a reasonable driver, in the circumstances would have taken the precaution of making sure that the gear lever was in Park and the handbrake engaged before exiting the vehicle.

PLAINTIFF CAUSED "DANGEROUS SITUATION" - "MOTOR ACCIDENT" SECTION 3(d)

The defendant contended that the motor accident in which the plaintiff suffered injury was a result of and was caused during a dangerous situation caused by her driving; defendant written closing submission at [14]. It was put that the dangerous situation of the car rolling over the plaintiff could not have existed if the plaintiff had taken the precaution of placing the gear lever in Park and pulling the handbrake on when she exited the vehicle after the engine had failed to start: defendant closing written submission MFI 8 at [18]. Further, that this was so regardless of whether or not those controls were in those positions when she entered the driver's seat: defendant closing written submission at [20]. The defendant further submitted: 1. At [21]: having put or left the gears of the Mazda in "Neutral", and having disengaged or left the handbrake off, the Plaintiff participated in removing the bricks from behind the wheels. Having created the "dangerous situation", she then participated in the "operation" that led to the "dangerous situation" being realised as a result of which she was injured; 2. At [22]: "The Defendant contends that the plaintiff's injury was caused by her own fault in the "driving" of the Mazda and/or in creating the "dangerous situation" that led to her injury, and that she therefore fails on the issue of liability".
Even if it be assumed that the plaintiff was at fault for exiting the vehicle whilst the controls were in those positions (which I do not find), the defendant cannot succeed on these propositions unless that driving fault by the plaintiff caused the dangerous situation. I have found that it did not. I have rejected the essence of the defendant's proposition that from the time that the plaintiff entered the driver's seat and put the key in the ignition to the time the car rolled over her, was all one event.
The rolling of the car was a separate event, delineated by the plaintiff having exited the car and returned the key to the defendant in conclusion of the attempts to start the engine. The new and separate event of rolling was in consequence of the new plan to roll the car down the driveway to Woodland Road where fuel might better enter the engine and the car might start. This new approach, at the suggestion of the defendant, was a new proposition discussed between them after the engine failed to start: plaintiff in chief transcript page 34, lines 06‑10; plaintiff in cross‑examination transcript page 62, lines 30‑38; defendant Exhibit 2 at [18]; defendant evidence in chief transcript page 103, lines 40‑46; defendant in cross‑examination at transcript page 116, lines 01‑24. Most obviously, the events are also to be delineated by the fact that the car could not roll until the brick chocks were removed. The removal of the brick chocks was a wholly separate activity from the plaintiff's attempts to start the engine.
Exiting the car with the controls in those positions did not create the dangerous situation submitted. That is clearly so because when the time the plaintiff exited the car, it did not roll. The parties then went about their mutual plan of removing the brick chocks plainly in the circumstance that neither of them expected the car's propensity to roll to overpower their capacity to physically restrain it.

PLAINTIFF CASE ON DEFENDANT FAULT - SECTION 3A

Whilst the Statement of Claim at 8‑(c) pleaded as particulars of negligence the defendant's failure to direct the plaintiff to remain in the driver's seat, ready to apply brakes, while the bricks were being removed without objection from the defendant; the plaintiff did not run the hearing on that basis.
In the plaintiff's closing written submissions MFI 7 at [5.w.6], the defendant's control of the motor vehicle was said to include that he stopped pushing and jumped out of the way as the car approached the letterbox. The evidence does not describe how that action might have contributed to the plaintiff going under the vehicle. There was no dispute between the parties that the rolling of the car and the plaintiff's fall when behind it during that task caused the plaintiff to go under the vehicle. The evidence does not describe what, if any, different character the rolling took after the defendant stepped aside and ceased pushing. It is not available on the evidence to assess the contribution of the defendant stepping aside, to that mechanism causing injury.
The plaintiff submits that the defendant was the "driver" within the definition of s 3(b) Mac Act because he was the person "in charge" of the motor vehicle. In my opinion, because he was the owner and not only suggested the plan to roll and continued the instruction to roll the car, but placed himself behind it for removal of the brick chocks and to physically restrain it; at the critical time he remained "in charge". Applying the rationale of Handley JA in Maguire's case at [14], the defendant here was at least as much "in charge" as was Mr Gooch there. For instance, the defendant could have called a stop to activation of the plan to roll the car before the removal of the brick chocks because he was the owner and there is nothing to suggest that the plaintiff would have not complied.
There can be little doubt that the plaintiff's injury occurred in an incident involving the use or operation of the car, which incident caused her injury and was a result of and was caused by the defendant's "driving" of the car in that sense. Therefore, the incident falls within the definition of "motor accident": s 3 "motor accident" (a) for the purposes of s 3A(1)(a) Mac Act.
The plaintiff also submitted (closing written submissions at [18]) that, being the owner at the time and having joined in the mutual rolling of the car following his instigating the plan to do so, the plaintiff's claim is validly brought under s 3A(1)(c) because her injury was caused by the defendant's fault as owner in the use or operation of the vehicle, during it running out of control.
The defendant conceded that if he breached his duty of care as owner of the motor vehicle, the plaintiff would be entitled to damages: defendant closing written submission MFI 8 at [8]. That concession would equally apply in the circumstances of the defendant being not only the owner but also the "driver", as I have found. It remains only to determine whether the defendant was at fault.
In my opinion, for the purposes of s 5B(1) CLA: 1. The risk that the car would roll down the driveway once the brick chocks were removed was obvious; and 2. That risk of harm to both the plaintiff and the defendant was significant because of the slope and length of the driveway, the weight of the car and given that no‑one was in the driver's seat to brake or steer it; and 3. In the circumstances, a reasonable person, whether an experienced driver as was the plaintiff or a person of life experience around cars and the owner of a car, as was the defendant, would have taken reasonable precautions.
Much was put by both parties, in the absence of expert evidence, about the operation of gear levers and brakes and the car's propensity to roll. It was repeatedly suggested that such things would be known and understood by the Court on the basis of common knowledge. In my opinion, it was within the common knowledge of the defendant and of the plaintiff that the car on the sloping driveway would roll. That is why the defendant was behind it. That there were chocks behind the tyres inferred that fact. Beyond that, the evidence did not explore their personal experiences with rolling cars or other wheeled things or otherwise their personal knowledge on that subject. In my opinion, it is speculative to assume that the plaintiff possessed more understanding than the defendant, of the capacity of the car to roll merely because she was a long‑term licensed driver.
In so finding, I bear in mind that the defendant was a man in his 70s and the plaintiff was a slight woman in her 60s. Whilst both the plaintiff and the defendant evidence indicate that they paid no attention to the state of the gear lever and handbrake as they went about removing the brick chocks. Reverse rolling the car down the driveway without a person in the driver's seat, at the moment the chocks were removed, was obviously a hazardous activity. On the evidence they mutually engaged in it.
For the purposes of s 5B(2), they both misjudged the rolling power of the car in circumstances where the probability that harm to either of them, attempting to restrain the roll from behind the car, was reasonably likely to occur and the circumstance of trauma to human body from an assault by the car was likely serious injury. The burden of taking precautions was slight indeed. The plaintiff and the defendant, exercising reasonable care within the meaning of s 5B(2)(c), ought not have released the brick chocks unless someone was in the driver's seat controlling the car by operation of the brake and steering wheel.
In my opinion, the defendant as owner and as driver was at fault in the use or operation of the car which caused the plaintiff's injury for the purposes of s 3A(1) Mac Act.

CONTRIBUTORY NEGLIGENCE

Pursuant to s 138(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. Pursuant to that section, principles applicable in determining whether a person has been negligent also apply in determining whether or not the person who suffered harm has been contributory negligent in failing to take precautions against the risk of that harm (s 5R(1)). The standard of care is that of a reasonable person in the position of that person. The question of negligence is to be determined on the basis of what that person knew or ought to have known at that time (s 5R(2)). Pursuant to s 5S CLA, the Court may reduce the award of damages by reason of contributory negligence to which the plaintiff is entitled by as much as 100% if the Court thinks it just and equitable to do so.
Assessment of the percentage deduction to be made for contributory negligence requires an evaluative judgment apportioning responsibility for the accident: Raad v VM & KTP Holdings Pty Ltd [2017] NSWCA 190 at [36]. In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492; 59 ALR 529; [1985] HCA 34, the High Court described the task to be undertaken by the Court at [10] 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, ie of the degree of departure from the standard of care of the reasonable man…[case law referred to]… and of the relative importance of the acts of the parties in causing the damage… [case law referred to]. 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."
On the topic of contributory negligence, each of the parties contained their submissions on the actions of the parties to brief, almost point form. Whereas the defendant submitted that in the event of a finding that the plaintiff was entitled to an award of damages under the Mac Act; contributory negligence should be assessed at 75% ([60] of the defendant's closing written submissions MFI 8); the plaintiff submitted that the contributory negligence should not exceed a 25% reduction ([20]‑[21] of the plaintiff's closing written submissions MFI 7).
In my opinion, comparison of the culpability of the parties and evaluation of apportionment of their respective contributions should commence with the fact that they mutually engaged in the activity of rolling the car down the driveway. As I have said, common sense dictates that each of them were in a position to prospectively appreciate the risk of harm which eventuated and I consider it to be causally irrelevant whether the plaintiff did or did not leave the handbrake on following her earlier attempts to start the car. Further, for reasons already given, I am not satisfied that to do so in the circumstances of three tyres being chocked would have departed from the standard of care expected of a reasonable driver. Each of them ought reasonably to have known the activity in which they joined of reverse rolling the car down the long sloping driveway without anybody in the driver's seat to brake or steer was patently hazardous. Equally, placing themselves behind the motor vehicle in that scenario was patently hazardous. At [59] of the defendant closing written submission (MFI 8), it was submitted that the plaintiff could have jumped away from the rear of the car as did the defendant when it gathered speed. That submission is not in accord with the evidence, which was that the defendant stepped away because he was fearful of tripping over the bricks and rocks near the letterbox, not because it became apparent that they could not restrain the car against its roll and in order to save himself. Indeed, in the circumstances of there being no one at the steering wheel, that the car might not roll down the middle of the driveway but go too close to an obstruction (the bricks and rocks) for the defendant to remain behind it, was a risk which ought reasonably have been apparent to each of them when they started the process. The evidence does not describe the parties panicking or, for instance, stepping quickly and awkwardly, or even that their feet were slipping on the ground. There is no evidence of that nature and there is no evidence of the speed of the car's roll.
In any event, when the defendant stepped aside, without first warning the plaintiff, she was left in the agony of the moment. She was not at the rear corner but was in the middle behind the car. The difficulty of extracting herself from the situation was not investigated.
The plaintiff submitted that she was behind the car attempting to restrain it in order to avoid a collision with the taxi approaching on Woodland Road. Indeed, that taxi had to swerve to avoid the defendant's car as it rolled across Woodland Road. In my opinion, that fact is not significant in the evaluative assessment because when the plaintiff and defendant mutually agreed to roll the car, they would have been equally aware of the risk of other road users on Woodland Road. The evidence does not permit determination otherwise.
That the defendant suggested that the car be rolled and that he was in charge of it to the extent that as owner he could have stopped the process up to the removal of the brick chocks from the tyres; are factors of some limited significance in the evaluative process because they mutually engaged the activity to remove the chocks and roll the car. The circumstances of its obvious mass, the slope and length of the driveway and their own physical capacities to restrain it were apparent to both of them. Once the chocks were removed, the risk of harm was created.
Likewise, the order in which the brick chocks were removed and whether or not the plaintiff removed a brick (which she denied) adds little because they were mutually participating in the plan to remove the bricks in order for the car to roll.
In my opinion, on the whole of their conduct, each of the parties departed from the standard of care of the reasonable man. The defendant's initiation of the plan to roll the car in the circumstance of his choice to do so and authority in the operation as owner, makes it appropriate to find his departure from that standard of care, slightly more culpable than that of the plaintiff. I assess contributory negligence at 45%.

DAMAGES

The parties agreed on quantum under the following heads of damages: Head of Damage Amount ($) Past Out‑of‑Pocket Expenses $12,281 with a credit to the defendant on account of $6,471 for payments made under s 83 Mac Act. Future Out‑of‑Pocket Expenses $10,000 (Agreed buffer) Past Attendant Care Nil (Conceded by the plaintiff at transcript page 86, line 25).

The plaintiff's claims for non‑economic loss and for future care remain to be determined.
At the close of the case, the defendant conceded that if he breached his duty of care, the plaintiff is entitled to damages for non‑economic loss and accordingly, there is no contest that the degree of permanent impairment suffered by the plaintiff as a result of the injury caused by the motor accident is greater than 10% for the purposes of s 131 Mac Act: defendant closing written submissions (MFI 8) at [8] and [73].

Non‑Economic Loss

The plaintiff presented to the Court as an unsophisticated person, managing a hard life which includes satisfying the significant medical needs in the care of her adult son whilst she herself suffers psychological long‑term amotivation and nutritional issues. Her son's medical condition was referred to in the early part of these reasons. The plaintiff's prior state, including having suffered the significant condition of anorexia nervosa, is recorded in the pre‑incident report of her treating GP, Dr Harget, dated 9 May 2014 (Exhibit 5). Because she is psychologically amotivational and for several months prior to the trial had been homeless, living with her son from her car; not surprisingly, there is a sparsity of medico‑legal opinion evidence on her side of the case. Indeed, when on day 4 of the hearing, counsel for the defendant indicated $180,000 (transcript page 187, line 34); counsel for the plaintiff was unable to obtain instructions from the plaintiff who was not in the Court precinct and could only submit: "I don't think the plaintiff could complain of a figure of $300,000 or less…" (transcript page 197, line 10).
On the first day of her evidence, the plaintiff answered feistily, discourteously, energetically and even oppositionally (but overall not untruthfully). On the second day of her evidence, she presented in a very different manner. Her demeanour was supressed and quiet.
The parties agreed that her life expectancy according to the actuarial tables is approximately 24 years, she being 64 years of age. Contemplating that, along with her general circumstances, I accept the parties' guidance in relation to the provision for future, commercial, attendant care; but her age and longevity is also relevant to evaluation of her non‑economic loss.
Whilst she is a person who at one point in the hearing described herself as virtually living on milk and lacking motivation in regard to much of life; the evidence also shows her to be a mother who has supported and cared for her significantly disabled son. His circumstances include his being abusive of her on occasion. The trial witnessed the experience of him coming through the courtroom door seeking his midday medication whilst she was in the witness box and her ability to deal with that situation immediately.
The impression which I gained of the plaintiff is that she is tenacious and committed to the care of her son. In my opinion, there are the real circumstances of compromised personal care which might diminish her longevity on the one hand; but her commitment to her son is equally likely to encourage her to maintain herself on the other, into the future. Some compromise of the likelihood of her achieving actuarial, average life expectancy is to be accepted, but the evidence does not permit a mathematical calculation of that compromise. The agreed adjustment in relation to future care, is the reasonable range for assessment of non‑economic loss also.
The medical literature available in evidence is to be considered in the context of the above described reporting and instructing capacity of the plaintiff. Counsel for the parties assisted the Court in this regard when it came to the question of entitlement for future attendant care services, on a commercial basis. The original occupational therapist reports were not tendered and the joint report disclosed that the plaintiff had given very different accounts of her history of support and needs to each of Ms Memon and Ms Cheel. It is to be accepted that her effort applied to reporting is, on occasion, diminished because of medically recognised poor motivation. Presented with these evidentiary circumstances, it is helpful to look closely at the available treating medical literature.
Dr Harget had been the Plaintiff's GP since 4 July 2012, when on 9 May 2014, Dr Harget completed the Centrelink Medical Report (Exhibit 5). In response to a question of whether or not the plaintiff had a medical condition which may significantly reduce her life expectancy, she answered the affirmative, identifying a diagnosis of long‑term anorexia of gradual onset commencing in her teenage years. Her condition was being supported by treatment through the Eating Disorder Clinic at Royal Prince Alfred Hospital. Dr Harget's report confirms that the plaintiff maintained ongoing support and review, including testing of bloods, in relation to her anxiety and depression and all comorbidities. The plaintiff's then current symptoms included anxiety and depression at a higher symptom level than was typical, with reduced energy and poor motivation which at times resulted in impaired cognition. Dr Harget reported that the plaintiff's ability to function was affected by lowered endurance, poor motivation and difficulty with interpersonal relationships as well as being very forgetful. She did not select, as offered on the form, that the plaintiff's condition would deteriorate in the "next 2 years". She did select deterioration of the plaintiff's ability to function within the "next 5 years"; which translates to about the time of the trial.
It is common ground that the plaintiff suffered severe and life changing injuries in the motor accident.
Blue Mountains Hospital Emergency Triage Summary of her admission shortly after 10:00am on 19 May 2015 was an uncontentious document, the contents of which each party addressed but through apparent oversight was not formally tendered (see transcript page 144). It was nevertheless for the purposes of submissions, assumed by both parties to be in evidence (see defendant closing submissions at transcript page 188, lines 15). Exhibit H is the Westmead Hospital clinical notes.
The plaintiff after initial admission to the Blue Mountains Hospital, Emergency, at about 10:30am on 19 May 2015, received triage assessment and first treatment before being transferred to Westmead Hospital. The Blue Mountains Emergency Rapid Trauma Assessment (Joint Court Book folder 1, pages 89‑90) records that she had suffered "significant trauma", being pinned down, dragged and run over. She was complaining of pain in her right chest and right lower limb. Her oxygen saturation was 94%. She was retained in a hard cervical collar and transferred.
At Westmead Hospital, her most obvious injury was observed to be a de‑gloving of her right thigh. Her list of injuries included facial abrasions, left forearm abrasions with skin tears, left hand abrasions with lacerations and the right thigh de‑gloving; all of which injuries required surgical washout and debridement and respective repair. At about 5:30pm, she underwent surgery at Westmead Hospital. In particular, the left forearm skin tears were laid back down and secured with Dermabond glue and the laceration to the dorsum of her left hand required incision and exploration of the internal components and suturing repair. Her major right thigh de‑gloving wound was surgically explored, glass, twigs, leaves and clumps of dirt were washed out and non‑viable fat and non‑viable skin debrided.
This last mentioned procedure has resulted in what is properly described as the massive scarring of her right thigh shown in the photographs Exhibit B. Seen in the courtroom, my description is that it is not just scarring at the skin level but includes a very uneven cratering of a very large portion of her right thigh. Also in Exhibit B, a large area of scarring of her left thigh, being the site of subsequent harvesting for skin transplant, can be seen. She was returned to a hospital bed with a drain on suction in the left side of the area of her right thigh which had been debrided. When returned to her hospital bed, her trauma was such that she continued to be retained in a hard cervical collar and with pelvic binders.
Additional injuries listed in the Westmead Hospital notes include: moderately displaced right‑side third, fourth and fifth rib fractures and a spiral fracture of the left little finger phalanx. She was cleared of intracranial and spinal injury by the trauma team.
Hospital treatment records describe the complication that at the site of the 20cm x 20cm right thigh injury, the skin flap became necrotic and the plaintiff was returned to surgery on 25 May 2015 for debridement and application of split thickness skin graft harvested from the donor site of her left thigh.
The plaintiff was deemed safe for discharge on 2 June 2016 with an oral analgesic regimen following review by the acute pain service and recommendation that she "be reviewed and stepped down by GP as appropriate". In regard to her left‑hand injury, she was to be followed up by hand therapists for commencement of range of movement exercises.
The Westmead Hospital Discharge Summary reports CT finding "Broad‑based disc bulges are noted at L3/L4 and L4/L5, indenting the thecal sac" with the comment that "Ligamentous injury cannot be excluded". It was agreed that her hospital admission was of 2 weeks' duration.
On discharge, her follow‑up plan included that she be discharged home, receive second daily dressing changes by community nursing, staples and skin sutures in the left thigh to be removed on 8 June by community nursing, left thigh donor site dressings to stay intact until 8 June and then be removed after soaking by community nursing, plaintiff to keep thermoplastic splint on left hand as much as possible, follow‑up at the Plastics Outpatient Clinic on 15 June 2015 for review of left little finger fracture and right thigh skin graft, plaintiff to follow‑up with GP in 2‑3 days when GP is to review analgesia for both rib fractures and right thigh wound.
Exhibit C is two photographs of the obvious scarring on the back of the plaintiff's left forearm and left hand.
In closing written submissions, there was little contest as to disabilities except for the defendant submission that the Court would not find the required causal relationship between the motor accident and the plaintiff's complaints of back pain. The submission was that the plaintiff did not complain of back pain until 23 September 2015, when the complaint was made to Dr Caroline Barrell and then to Dr Mark Freeman of low back pain on 8 October also. These were General Practitioners at the same practice as Dr Harget.
On 23 September 2015, Dr Barrell recorded "Ongoing pains in right leg and knee, esp[ecially] graft region, and swelling of knee-see Dr Harget re knee, back and chest pains and headaches". The clinical notes appear in the usually brief, point form fashion regularly seen and recognised by the courts as drawn for the purposes of treatment rather than for the purpose of recording a detailed history for admission into a Court trial: see Mason v Demasi [2009] NSWCA 227 per Basten JA at [2]. The word "Ongoing" combined with the reference "see Dr Harget" was a deliberate clinical descriptive of the pain as not merely episodic or recent; but rather, continuing from Dr Harget's earlier observation. On 17 June Dr Harget reported that the plaintiff complained of pain "in all sorts of places".
On 2 July, Dr Harget recorded that the plaintiff's son had struck her and struggled with police, consequent of which a magistrate referred him for psychiatric care (until, according to Dr Harget's clinical note of 31 July 2015, his return the Monday before). At that consultation, Dr Harget recorded the plaintiff continuing to suffer right knee pain and that it was tender on examination. On 8 July 2015, Dr Harget recorded complaints of pain in the right great toe. On 2 September, Dr Barrell recorded the plaintiff suffering headaches and a sore neck.
The clinical notes also deal with the plaintiff's life issues, including the death of her beloved dog Ritchie and the difficulties of coping with her son's care and behaviour, including his being "under tribunal's orders".
It is apparent that the doctors of the GP clinic were involved in broad issues of management of the plaintiff's complex medical needs, including her long‑term psychological vulnerability. Although the entries are as sparse as those to which I have referred, in my opinion, Dr Barrell's note of 23 September 2015 deferring to Dr Harget regarding the plaintiff's right knee, back, chest pains and headaches, as well as Dr Harget's 17 June note of pain in "all sorts of places", is corroborative of the evidence given by the plaintiff that she suffered ongoing and strong pain in those parts of her body. In my opinion, that there is not a discrete reference to back pain in the clinical notes of the GP clinic until that clinical note of 23 September 2015 does not warrant rejecting her oral evidence of low back pain. Following full assessment at Westmead Hospital, it was recorded in hospital notes that lumbar spine ligamentous injury could not be excluded.
In his medico‑legal report dated 3 May 2016, addressed to the plaintiff's then solicitors (Exhibit F), Dr Peter Conrad, Orthopaedic Surgeon, opined that in the incident the plaintiff suffered an injury to her lumbar spine associated with discal injuries, as shown in the Westmead Hospital CT. In his separate report of the same date, Dr Conrad assessed the plaintiff as suffering a 30% Whole Person Impairment according to the Motor Accidents Act Guides and using the Fourth Edition AMA Guides. In this he included a 5% Whole Person Impairment on account of her back impairment.
In his report dated 27 June 2016, Dr Chang, Plastic Maxillofacial and Hand Surgeon / Musculoskeletal Consultant, directed to the plaintiff's then solicitors (Exhibit G) referred to an MRI of the lumbosacral spine obtained on 27 April 2016. He assessed injuries caused by the incident. He opined that at the L4/5 level, there was right lateral disc herniation with broad based central and left paracentral disc protrusion. He reported left and right compromise of transiting L5 nerve roots and that the L4 nerve roots on the right side could be compromised. He reported "severe central canal stenosis" at the L4 level with bilateral facet joint arthropathy. Dr Chang reported that the plaintiff demonstrated a normal and symmetrical range of movements of the lumbar spine with pain radiating down both legs to dermatomes L3 and L4/5 on the right side and left buttock on the left side. He found no residual deformity of the left little finger and normal active range of movement there. The scars on the left hand and forearm, shown in Exhibit C, were measured by Dr Chang. The forearm scars measured 6cm long and 3cm wide. He did not report a measure for the scar that can be seen on the left hand. At the time of his examination, he measured the "large depressed scar" on the plaintiff's right medial lower thigh at 15cm long x 15cm wide with "prominent" meshed "chicken wire pattern". He reported the area was aching constantly, requiring pressure bandaging and regular application of a moisturiser to ease the discomforts. He recorded that the plaintiff also reported to him that her right knee would tend to freeze‑up affecting her mobility. He measured the donor site scar of the plaintiff's left thigh as 18cm x 18cm. When asked to comment on needs for domestic assistance, Dr Chang described the plaintiff state in that regard as "severely disabled". Employing the same guidelines for assessment of Whole Person Impairment as did Dr Conrad, Dr Chang also attributed 5% to lumbar spine impairment. He assessed a total of 17%.
On the contentious causal issue concerning the plaintiff's back pain, the defendant relied on the report of Dr Schutz, Consultant Trauma and General Surgeon, dated 24 November 2016 (Exhibit 3). In his summary, Dr Schutz observed that "Although [the plaintiff] reported significant problems the evidence suggests that she has made a good recovery from the effects of the MVA". It is on the basis of his not finding evidence in the clinical history since injury that he assessed the "more significant pain and…a neurological deficit in the right leg" as being the consequence of degenerative change in the lumbar spine which came on "at a later stage". His opinion of the 24 April 2016 lumbar MRI scan is different to that of Dr Chang because Dr Schutz determined "…it is highly likely that the current low back condition developed subsequently and is not due to the 2015 MVA". He did record the plaintiff's complaint that her low back pain was getting worse with radiation on the right side extending into the buttock. He noted that the plaintiff attended the appointment wearing a lumbar spine corset of the type purchased at a chemist shop and she frankly informed him that a friend had given it to her only a day before. He observed that the right thigh skin grafted area limited the flexion of her knee. He recorded that the plaintiff complained of ongoing symptoms in the left hand and both sides of her chest. Dr Schutz conceded that he missed the plaintiff's complaints of diminished left wrist function.
Dr Schutz listed what he called "Reported present capabilities" from which I select the following: 1. The plaintiff walked 1km from a train station to the examination, saying that she was limited by lower back and right leg symptoms and could not run; 2. The plaintiff said that sitting tolerance was limited to 20 minutes by low back pain; 3. She avoids lifting because of back pain; and 4. Domestically, she could do shopping with difficulty, could cook simple meals and at home avoided dropping things because of difficulty cleaning.
I make the summary observation that Dr Schutz reported his opinion that presentation of neck problems, pain at the right thigh skin grafted area and neurological sensations into the legs were non‑organic. Specifically in relation to the low back pain, he reported: "At this examination she indicated symptoms over the whole extent of the right paravertebral muscle region and not solely in the lower lumbar region. There is an absence of the right ankle jerk which would suggest right S1 nerve root abnormality; and there may have been a slight relative decrease in sensation of the sole of the right foot which might also indicate an S1 nerve abnormality".
He concluded that the signs of degeneration in her lumbar spine "would adequately explain" regional symptoms and that her reported symptoms and restrictions "were significantly in excess of those anticipated based on the clinical and radiological findings".
In my opinion, albeit sparsely reported in the GP notes, the plaintiff's complaints of low back pain cause me to prefer the opinions of Dr Chang and Dr Conrad to the dismissive opinion of Dr Schutz. Dr Schutz did determine the radiological findings to support the existence of low back symptoms and restrictions. The plaintiff's oral evidence is sparsely corroborated by her GP clinical notes and my consequent preference for the medico‑legal opinions of Dr Conrad and Dr Chang, cause me to be satisfied that the plaintiff's back pain was caused by the motor accident.
Dr Giles, Plastic and Reconstructive Surgeon, reported on 31 July 2017 to the defendant's solicitors (Exhibit 4). He described the right leg scarring in the following terms: "…scarring is extensive and unsightly. There is a huge contour deformity and although stable when seen, the graft will never be as resilient as normal skin and it will be aggravated by exposure to sunlight or to cold. The scarring restricts the normal activities of her daily life, as it limits the clothes she can wear and although it could not by (sic) improved by further surgery, the graft does require the regular application of an emollient to prevent it drying and cracking. In my opinion, the "best fit" for the impairment caused by her scarring would be 9%."
Dr Giles also assessed 5% Whole Person Impairment on account of the left forearm injuries. He concluded with an assessment of 14% Whole Person Impairment whilst not assessing impairment caused by an injury to the lumbosacral spine because it was outside of his field of expertise.
In oral evidence, the plaintiff said that she sought discharge from Westmead Hospital because of her concern for her dog Ritchie and she was worried about the welfare of her son. She said she did not know if he was "alive or dead". She described the staples then in her leg at the injury sites and that she was provided medications. Not surprisingly, she claimed that she felt great pain in hospital and that it was "basically everywhere". A lay person can appreciate the experience of their body between the bottom of a car and the driveway and then roadway during motion of the car and be not surprised that a subsequent description would be of pain basically everywhere. Indeed, this is what Dr Harget's note of 17 June 2015 recorded. I accept her description. She said that she couldn't move because of the pain in her ribs.
On her own account, the back pain commenced in the weeks following her injury and she suffered right lower leg pain with numbness in her foot. The pain in her low back continued to get worse. She experienced pain in her left arm and shoulder and numbness in her hand and fingers. She described that the pain in her right thigh is everyday and that every morning she has to stretch her leg. She takes pain killers. She tried pool physiotherapy 12 times but the pain worsened, particularly for her leg and she found that her ribs hurt because of the breathing required in the pool.
She said that when she returned home from hospital, her nerves were shattered and she had zero tolerance. She drove only to the shop and short distances. No one came to help her in the home. Her son did little. She did not receive ongoing treatment except for attending the GP practice. She progressed to everyday painkillers as well as taking sleeping pills.
That the plaintiff suffered pre‑injury medical conditions, including a thyroid condition for which she was medicated and anorexia, weighs in the evaluation of non‑economic loss.
It being conceded that the degree of permanent impairment is greater than 10% WPI, general damages are at large with no requirement for proportionality of a most extreme case. The parties agreed that the maximum amount that the Court may award for non‑economic loss pursuant to s 134 Mac Act is $565,000.
The plaintiff being approximately 60 years of age at the time of her injury and approximately 65 years of age at the time of trial, with a life expectancy of at least another two decades, lives a demanding lifestyle because of the lack of support available to her. In short, she is a person who must very much fend physically and psychologically for herself. She does so also for her son. In this regard, her physicality is particularly important to her. Her pre‑existing medical conditions must have limited her to some extent, but do not diminish that reality of affection of her lifestyle consequent of her injuries.
As a pensioner, she is unlikely to be able to afford for herself a "softer" environment of less demands. It is in these circumstances that she has a grossly obvious and, one must say, unattractive scar of her right thigh as well as an obvious scar of her left thigh. Dr Giles described her right thigh deformity as a "huge" contour deformity. That description meets with my observation of it in the courtroom.
No person in their 60s would not be distressed if they were to learn that their appearance would be so affected. In addition, the right thigh skin grafted area, of 20cm x 20cm suffers dryness and aggravation which requires emollient cream to be regularly applied. She is reminded of it by the constant aching which is worse in cold weather. She says that she experiences pain when it is touched and without dismissing Dr Schutz's observation that his light touch did not illicit pain, I have no hesitation in accepting that the plaintiff would be nervous of bumping the area because of the pain which she would suffer. The scarring to her left forearm and hand is less of a disability but is another measure of impairment affecting her opportunity to enjoy life.
She is required to continue ongoing treatment from her local GP practice, including ongoing analgesic treatment. I have accepted her entitlement to compensation for her lower back pain and the associated radiation into her legs and diminished sensation and reduced reflexes. Quite obviously, her early treatment and recuperation was extremely painful and because of her absence from and inability to care for her son, very distressing. Medical literature confirms that she was also distressed by her inability to care for her dog, Ritchie.
In my opinion the plaintiff's loss of amenity of life due to the injuries suffered and their ongoing impairment is very significant. The combination of her serious back impairment, impairment in her legs as well as reduced flexion in her right knee, impairment of her left wrist, the major cosmetic and functional impairments of her right thigh and the scarring of the donor site of her left thigh, really must be accepted as amounting to a seriously inhibiting and diminishing burden on her otherwise, pre‑injury state of opportunity to function in and enjoy life. I award $260,000 on account of non‑economic loss.

Future Care

The claim for future care was put on a commercial care basis. At the time of hearing, it will be remembered, the plaintiff had been homeless for about 3 months. In her evidence, she was unable to assist as to when she would be likely to obtain accommodation. At closing written submission (MFI 7) at [24], the plaintiff conceded that she is not entitled to an award for commercial care whilst homeless. The plaintiff pressed that the appropriate award would be a lump sum cushion or buffer having regard to the likely future circumstances under s 126 of the Mac Act on an approach consistent with Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 and Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v Workers' Compensation Nominal Insurer (2018) 98 NSWLR 171; [2018] NSWCA 146.
Basically, the parties joined in the proposition that the evidence made assessment difficult because the plaintiff had provided inconsistent descriptions and histories of her needs and of assistance received to Ms Rehana Memon and to Ms Clair Cheel, Occupational Therapists, whose reports were obtained in the interests of the plaintiff and of the defendant respectively. Those occupational therapists produced a joint report (Exhibit 9). The parties agreed that the plaintiff's future domestic environment is not known and therefore her need for commercial assistance is very difficult to assess on the evidence.
In closing written submissions (MFI 7) at [24], the plaintiff submitted that the amount of $29,512 proposed by the defendant in its Schedule of Damages was "not an ungenerous assessment" of what might be awarded. At transcript page 85, lines 29‑35, the plaintiff expanded the reasons for its concession as contemplating the difficult to assess chance of the plaintiff at some stage obtaining a rented home premises in the future which would make provision of commercial care to her feasible. The sum is assessed on an approximation of one hour of commercial assistance per week. Guided by the parties' efficient approach to the question, on the whole of the medical evidence, I accept that a buffer in the sum of $29,512 is within the reasonable range and is an appropriate award.
Total damages in the sum of $311,793 are to be discounted by 45% in accordance with my determination of contributory negligence, making gross award of damages in the sum of $171,486. The insurer is to have a credit on account of s 83 payments in the sum of $6,471.

ORDERS

I made orders as follows: 1. Judgment for the plaintiff in the sum of $171,486. 2. The Insurer is to have a credit from the judgment sum on account of s 83 payments in the amount of $6,471. 3. Defendant to pay the plaintiff's costs.

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: 31 August 2020

Motor Accidents Compensation Act 1999(NSW)s 3A, ss 3, 3(b), 3(d), 3A, 3A(1), 3A(1)(a), 3A(1)(c), 83, 126, 131, 134, 138(1), 138(3)

Civil Liability Act 2002(NSW)ss 5B, 5B(1), 5B(1)(c), 5B(2), 5B(2)(a), 5B(2)(c), 5B(2)(d), 5D, 5R, 5S

Motor Accidents Act 1988(NSW)ss 9, 3(1)(b)

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