Duygu Lisa Sengul v NRMA Insurance Pty Ltd

CHRONOLOGY

1. A chronology was prepared behalf of the plaintiff, adopted by her and tendered in her case. It became Exhibit 'A'. The chronology provides as follows: Date Event Reference 14 October 1995 The Plaintiff was born (22 years old) 2008-2013 The Plaintiff completed Year 7 - Year 12 at Keira High School 1 January 2013 The Plaintiff commenced employment with Cotton on Group. Subpoena to produce - Cotton on Group 2014 The Plaintiff commenced a Bachelor of Nutrition and Dietetics at the University of Wollongong 17 October 2014 The Plaintiff commenced employment with Cue Clothing. Subpoena to produce - Cue Clothing 9 March 2016 Motor Vehicle Accident Medical Attendance Certificate to Wollongong Hospital 16 March 2016 Consultation with Dr Perriment (General Practitioner) PHS - Wollongong Medical Centre printed 25/08/2016 • Prescribed Tramadol 18 March 2016 Consultation with Dr Perriment PHS - Wollongong Medical Centre printed 25/08/2016 19 March 2016 Consultation with Dr Perriment PHS - Wollongong Medical Centre printed 25/08/2016 24 March 2016 Whole Body Scan with Spect - Dr Sobia Khan 22 April 2016 Consultation with Dr Andrew Mackie (General Practitioner) PHS - Wollongong Medical Centre printed 25/08/2016 • Referral for MRI of Thoracic and Lumbar spine 26 April 2016 Medical Certificate form Dr Shah (General Practitioner) certifying the Plaintiff is unfit for usual occupation from 30 April 2016 - 1 May 2016. GP consultation with Dr Perriment 27 April 2016 Personal Injury Claim Form medical certificate by Dr G Perriment PHS - Wollongong Medical Centre printed 25/08/2016 • Pain + tenderness lower thoracic / upper lumbar • Letter to David Becconsall (Physiotherapist) 24 May 2016 Report from Dr Patel Subpoena to produce - Wollongong Medical Centre 1 June 2016 Consultation with Dr Bowler Subpoena to produce - Campus Clinic- University of Wollongong Medical Certificate from Dr Jenifer Bowler (General Practitioner) supporting need for rest breaks and an ergonomic chair and special consideration 14 June 2016 Application for special consideration for university course, Nutrients & Metabolism (MEDI351) Subpoena to produce - University of Wollongong Application for special consideration for university course, Community and Public Health Nutrition (MEDI353) 21 June 2016 Application for special consideration for university course, Dietetics 1 (DIET450) Subpoena to produce - University of Wollongong 23 July 2016 Letter from Dr Perriment to NRMA responding to a request for information Subpoena to produce - Wollongong Medical Centre 10 August 2016 Consultation with Dr Bowler Subpoena to produce - Campus Clinic- University of Wollongong 29 August 2016 Consultation with Dr Bowler Subpoena to produce - Campus Clinic- University of Wollongong Consultation with Dr Bowler 30 August 2016 Care plan for Physiotherapy - Ben West Subpoena to produce - Campus Clinic- University of Wollongong GP Management plan 8 September 2016 MRI of Thoracic Lumbar Spine - Dr Amey Aurangabadkar Subpoena to produce - Wollongong Medical Centre 15 September 2016 Medical Certificate certifying the Plaintiff is unable to attend from 15 September 2016 to 16 September 2016 inclusive Subpoena to produce - Wollongong Medical Centre 5 November 2016 Report from Ben West (Physiotherapist) 10 November 2016 Report from Ben West to Dr Jenifer Bowler Subpoena to produce - Campus Clinic- University of Wollongong 5 December 2016 Consultation with Dr Bowler Subpoena to produce - Campus Clinic- University of Wollongong 8 November 2016 Application for special consideration for university course Dietetics 2 (DIET451) Subpoena to produce - University of Wollongong 13 December 2016 Medico legal report of Dr Porteous (Occupational Physician) dated 15 December 2016 23 January 2017 to 24 February 2017 The Plaintiff was on placement at Grains and Legumes Nutrition Counsel. GP Consultation with Dr Perriment • Prescribed Lyrica PHS-Wollongong Medical Centre printed 11/05/2017 28 February 2017 • Referral to Pain clinic at Port Kembla Hospital Subpoena to produce - Campus Clinic- University of Wollongong • Referral for MRI of cervical spine Report from Virginia Rowland (Physiotherapist) to Dr Jenifer Bowler 12 March 2017 MRI of Cervical Spine - Dr Kevin Ng 22 March 2017 Medical certificate certifying the Plaintiff has a medical condition affecting her studies from 22 March 2017 to 28 March 2017 - Dr Euan Bulcraig Subpoena to produce - Campus Clinic- University of Wollongong 11 April 2017 Consultation with Dr Perriment Subpoena to produce - Wollongong Medical Centre • Referral letter to Russel Young (Exercise Physiologist) 19 June 2017 to 21 July 2017 Placement at Wagga Wagga Rural Referral Hospital 28 July 2017 Report of Russel Young 1 August 2017 Medico Legal report of Dr Ron Muratore (Sport and Exercise Physician) 10 August 2017 Medico legal report of Dr Khan (General Surgeon) dated 13 August 2017 3 October 2017 Medical certificate from Dr Jenifer Bowler to support application for Academic consideration for this semester assessments Completed Bachelor of Nutrition and Dietetics (Honours) 12 December 2017 • Course year 2016 Academic Transcript • Deans Merit List- Faculty of Medicine and Health 23 April 2018 Serve Agreement contract between Active Ability Pty Ltd and the Plaintiff 25 April 2018 The Plaintiff commenced her first day of work as a Sole Trader (Mobile Dietician) 26 May 2018 Offer of employment with Active Ability Pty Ltd as a Mobile Dietician Email dated 26/05/2018 20 June 2018 Offer of employment with Western NSW Local Health District as a Dietician based at Condobolin District Hospital Subpoena to produce - Western NSW Local Health District - Condobolin Health Services 25 June 2018 The Plaintiff starts her first day of employment at Condobolin Hospital 28 June 2018 Medical certificate of Dr Jenifer Bowler 28 June 2018 Updated Medico legal report of Dr Porteous dated 29 June 2018 4 July 2018 Email report of Russel Young Email dated 4/07/2018

The Plaintiff

1. The plaintiff's evidence in cross-examination was interrupted by the interposition, by consent, of Mr Galatoulas and Senior Constable Dinning.
2. In referring to the plaintiff's evidence, I do not intend to refer to those matters which are not contentious or the subject of the chronology, referred to above.
3. The plaintiff was 22 years of age at the time of giving evidence. She described herself as a "bit of a gym junkie and a health freak". She was studying at the University of Wollongong, undertaking a course in Bachelor of Nutrition and Dietetics. That was a four-year course which the plaintiff commenced in 2014 and completed last year. The accident occurred in March of the 3rd year of the plaintiff's course at the University.
4. In 2012, the plaintiff commenced work with "Typo", a retail store selling stationery and other products. Her job was characterised as a retail assistant and included duties such as vacuuming, mopping, keeping the store tidy, unpacking stock, rearranging stock, organising displays, and attending to customers. The job involved lifting on a regular basis.
5. The plaintiff commenced that employment in Year 11 working just Thursday nights and at weekends. After finishing school, her hours increased, probably doubling to about 15 hours per week at the time of the accident.
6. The plaintiff graduated from the course she was undertaking at the end of 2017 with first class honours, making the Dean's List twice.
7. She is presently employed as a dietician in the public health system and aspires to commencing her own business in the future.
8. The plaintiff's evidence-in-chief then turned to the accident. She had a driver's licence at the time but parking at the University was problematic. On occasions, the plaintiff would travel to and from the University with Nicholas Galatoulas, also a student undertaking the same course. They would often park in the streets around the University, including Murphys Avenue where the accident occurred, said to be about one kilometre from the University campus. The plaintiff with or without Mr Galatoulas had parked on Murphys Avenue on many occasions prior to the date of the accident.
9. Initially in the plaintiff's evidence-in-chief, she was taken to a photograph (Exhibit B) which that depicted a retaining wall blocking the pedestrian access off the road. She stated "we knew it was coming up, so sometime before you would enter the road" (T23.46). The plaintiff estimated that they would enter upon the road approximately 100 metres prior to the retaining wall which they knew to exist, at which time they would move onto the road and continue walking towards the car with their backs to oncoming traffic.
10. On the day in question, Mr Galatoulas was leading the way as he knew exactly where his car was parked, and the plaintiff was not exactly sure where Mr Galatoulas' car was parked. The plaintiff followed Mr Galatoulas out on to the roadway and walked along his right hand side. There were parked cars on the southern side of Murphys Avenue, on the left-hand side of Mr Galatoulas.
11. Apparently, the area where the car was parked was commonly used for the parking of cars by students of the University.
12. In an attempt to identify where the accident occurred, the plaintiff stated that they "were well past the retaining wall when something happened" (T26.10). Doing her best, she estimated they had gone a couple of steps beyond the white handrails which are visible in exhibits 'B', 'C' and 'D'.
13. The plaintiff was carrying two bags. The first contained her laptop which was in her left hand and a second bag contained a pencil case, wallet, food, some notes and books, which was on her right shoulder. The second bag was estimated to be approximately 40 cm x 25 - 30 cm. The plaintiff estimated the weight of that bag to be a couple of kilograms. The plaintiff stated the bag was "just on my shoulder next to my body" (T27.34).
14. Describing the accident, the plaintiff stated: "So I felt something clip the side of me and I lost balance and fell backwards, my feet came off the ground and I fell back onto my hands" (T27.38).
15. The plaintiff felt that the force of the fall was taken on her right-hand and she also felt pain in the thoracic region of her back after landing on the ground.
16. An ambulance arrived a short time after the incident and the plaintiff was taken to hospital. She was kept under observation for a period before being discharged home. She was told to take over-the-counter pain relief.
17. The plaintiff consulted her GP Dr Perriment on 16 March 2016, seven days after the accident. In the days between the accident and consulting her GP, the plaintiff described that she was suffering immense pain, mainly in her back. Upon consulting Dr Perriment, the plaintiff described her pain and told Dr Perriment that she was having difficulty sleeping. Apparently, she was prescribed Tramadol.
18. A few days later, the plaintiff returned to see Dr Perriment, who then recommended a whole body scan.
19. Following the accident, the plaintiff had about four to six weeks off work at Typo before returning on reduced hours of about three hours per week.
20. The plaintiff stated that after the accident, she worked as much as she could with limited responsibilities in the store. On occasions, she would call in sick or get somebody else to cover her shift. The plaintiff continued working with Typo until May 2018.
21. As a result of the injury suffered in the accident, the plaintiff claimed to have difficulty sitting for prolonged periods. This led her to approach the University who granted her special consideration for examinations.
22. In addition to Dr Perriment and doctors at that practice, the plaintiff also consulted with Dr Jennifer Bowler who was based at the University.
23. The plaintiff also had physiotherapy which she stated was of benefit to her and which she would have again in the future in the event that the funds were available.
24. The plaintiff also described how her recreational and sporting activities were affected by the injuries suffered in the accident. Since the accident, the plaintiff has not returned to soccer, attending gym without supervision, or participating in the intensive form of exercise referred to as "Boot Camp".
25. She is currently in the care of Russel Young, an exercise physiologist based in Wollongong who assists her at the gym, working on core strength and strengthening other parts of her body with limited amounts of weight-bearing exercise.
26. Earlier in 2018, the plaintiff moved to Condobolin where she took up work in the public health system. Enquiries have been made by the plaintiff of the owner of a gym in Condobolin who apparently has located an exercise physiologist who may be able to provide her with support whilst she is living in that town.
27. Whilst living in Condobolin, the plaintiff is living in a hospital-provided accommodation with a nurse as her flatmate. Although the plaintiff has not told her flatmate about the accident, the flatmate has questioned her sometimes when taking a Panadol Osteo and when the plaintiff has put off a few household duties, at which times the flatmate has provided her with assistance. According to the evidence of the plaintiff, a text was sent on 29 July 2018, the day prior to giving evidence, containing a photograph of the plaintiff's bedroom. Her flatmate had changed and washed sheets, and remade the bed. The plaintiff stated that she has not changed the sheets on her bed since the accident. When in Wollongong, her mother does it or she would get people living with her to help her.
28. The plaintiff's current accommodation arrangements mean that she is living in nurse's quarters attached to the hospital. Apparently the space is limited and the building is a demountable. Hospital cleaners come in and clean the nurse's quarters, wash the hospital linen that the plaintiff uses and also hospital towels which she finds of assistance, and the reason for remaining in less than ideal accommodation.
29. With the absence of an exercise physiologist, the only exercise the plaintiff is undertaking is by using a bicycle at the gym, to which reference has been made previously. She told the Court that she has put on weight since the accident occurred.
30. After completing her University course at the end of last year, the plaintiff obtained some voluntary work with the Grains and Legumes Council, as well as running programs for Nutrition Australia.
31. Her first paid employment came from Active Ability Pty Ltd where she was working as a dietician. That company was based in Sydney and has exercise physiologists, physiotherapists and dietitians in its employ. They provide allied health services to people with disabilities who have obtained funding through the National Disability Insurance Scheme. The plaintiff's role was that of a mobile dietician. She would service patients in the Sydney metropolitan area including at private residences and group homes.
32. When asked whether that job caused her any differently, the plaintiff stated: "It was a big hurdle having to relocate my whole office mobile. Every single time I saw a patient I would have to drive to the client's home, unpack my laptop potentially, resources the client would need, paperwork, my dietetics handbook and anything else that you would need in a normal office into their home so that I could do the consult with them, and then packing that back up, putting it back in my car, driving to the next location, unpacking again and doing it all over." (T38.27 - 34).
33. Whilst the plaintiff was doing that work she was still living in Wollongong but was servicing the whole Sydney metropolitan area, including places such as Tempe and Baulkham Hills.
34. She said that after returning home following work days she would be in pain.
35. After commencing work with Active Ability Pty Ltd, the plaintiff was formally offered a job with New South Wales Health Care Service working as a dietician at Condobolin Health Service, being a temporary contract until September 2019.
36. The plaintiff took a job with the Health Service in Condobolin as it did not involve the travel with packing and unpacking as was required in the earlier employment. In doing so, the plaintiff left a job where she was paid $183.00 per week more than the job which she took up.
37. The plaintiff told the Court that her plan was to specialise in the area of paediatric nutrition, working at a hospital such as the Children's Hospital at Randwick, before moving out into her own private practice. She thought that this might occur in about 10 years' time.
38. In relation to her current employment at Condobolin Hospital, the plaintiff stated that she was "getting through (her) days, but it's not without pain" (T41.23). She said that the pain was to her lower back and thoracic area which are treated with Panadol Osteo as she cannot take other medications which she has trialled unsuccessful in the past.
39. Due to the plaintiff's unrelated condition being an oesophageal stricture, she is not permitted to take non-steroidal anti-inflammatory medications such as Nurofen. She said that she's tried Tramadol, Panadeine Forte, Lyrica and other medications which will cause nausea, vomiting and reduced ability to function.
40. The plaintiff was then cross-examined.
41. An initial issue arose as to whether the plaintiff's evidence concerning the taking of various types of medication post-accident was accurate. It seemed that the records from the plaintiff's doctor did not support the taking of medication to the extent claimed by the plaintiff. On the last day of hearing, the plaintiff's sister who is a pharmacist was in Court and it was agreed between the parties that medication was obtained from the plaintiff's sister which may not have generated a record in the treating doctor's notes.
42. The plaintiff was then cross-examined about her University attendance and results.
43. The plaintiff was asked questions about her working hours with Typo which varied considerably in the months prior to the accident. When she was on University break, she was available to work longer hours and on at least one occasion worked in excess of 19 hours in a week.
44. The cross-examination of the plaintiff then turned to the day of the accident. The plaintiff had not travelled to University that day with Mr Galatoulas and, therefore, was not certain as to where he parked. He told her that he had parked on Murphys Avenue. The plaintiff confirmed that they had walked about 100 metres on the roadway before the collision happened. She could not recall whether they had been walking on the grassed area prior to entering upon the roadway. She denied that it was possible that she was walking on the road for less than a hundred metres prior to the incident and thought that perhaps it could even had been more.
45. The plaintiff confirmed that Mr Galatoulas was walking closer to the parked vehicles than she was. The plaintiff stated that they walked as close as possible to the parked vehicles. As they were walking side-by-side, the plaintiff accepted that she was most probably walking in the path of vehicles coming up the roadway in a westerly direction (T54.30).
46. When asked whether she was keen to keep a lookout to see if anybody was coming from behind, she stated "we were always alert to our surroundings, yes" (T54.36). Nevertheless, the plaintiff agreed that she did not hear the driver's vehicle prior to the impact.
47. In further cross-examination, the plaintiff agreed that there was nothing necessarily stopping them from walking on the northern side of Murphys Avenue where there was a grassed section without the obstruction of a retaining wall.
48. The plaintiff told the Court that she felt the vehicle "clip" her. In clarifying whether the vehicle clipped her or her bag, the plaintiff stated "I'm not sure" (T56.2). In my mind, it does not much matter as it is plain that contact with the driver's vehicle is what caused the plaintiff to fall to the ground and suffer the injuries complained of.
49. It was then confirmed that the incident occurred after the plaintiff had walked past both of the handrails shown in the various photographic exhibits although the plaintiff's answer to that question was somewhat equivocal: "I can't be exactly sure, but I think so" (T56.15). It was then suggested to the plaintiff that she could have gone up the stairs to get off the road, to which she replied: "No, we wouldn't use those stairs, because they're an entry into the residence there" (T56.20). The plaintiff disputed that they could have walked on the grassed area at the top of the stairs on the basis the terrain was "Steep along the whole way" (T56.40).
50. In further cross-examination, the plaintiff conceded that the steepness did decrease and that it was probably similar to the same gradient as the road upon which the plaintiff was walking. The plaintiff agreed with the cross-examiner that it would have been prudent to get off the road as quickly as she could and go up those steps and walk on the grassed area, and that she decided to walk on the roadway.
51. The plaintiff was then asked whether it is possible that she entered the roadway from the driveway immediately adjacent to the retaining wall. The plaintiff denied that is what occurred. She could also not remember whether there was a white van parked to the east of that driveway.
52. The plaintiff's evidence was clear that they were walking on the road for some time before reaching the point on the road adjacent to where the retaining wall is located.
53. The plaintiff confirmed that she fell back onto the ground with her hands and back taking the brunt of the force. She agreed with the proposition that the hospital records confirmed an injury to her thoracic spine. Further, she agreed that when she first consulted Dr Perriment, GP, she felt pain mainly in the thoracic area, together with some stiffness to the neck and lower back.
54. She was then cross-examined about a return to Typo. She seemed to agree that she returned on or about 7 April and worked shifts on consecutive days consisting of 3 hours each. She said that she had difficulty returning to work and that she was restricted in her duties, unable to do any heavy lifting.
55. The plaintiff was then cross-examined about her success at University following the accident. She received grades of a level that she had not received previously and agreed with the proposition that she worked pretty hard on her studies during that first semester. The plaintiff however rejected the proposition that she worked less in order to achieve the greater academic success.
56. In terms of social activities, the plaintiff agreed that she had a 21st birthday party on October 16 2016, and in November 2016 travelled to Hawaii where she engaged in the usual tourist activities.
57. The plaintiff was then asked some questions about her employment at Condobolin Hospital and her current job. It was put to her that she does not have any difficulty doing her job now as a dietician. She denied that proposition and said that she suffered from pain.
58. After other witnesses were interposed, the plaintiff's cross-examination continued.
59. The plaintiff was asked questions about her employment at Typo as well as her work with Active Ability. I do not intend to recite that evidence but I have had regard to it for the purposes of these reasons.
60. The plaintiff denied that it was always her intention to work for New South Wales Health, and that one of her long-term options was to open her own business.
61. The plaintiff confirmed that she required an exercise physiologist to reintroduce her to her attendance at gymnasiums. She also confirmed that she intended to have more physiotherapy.
62. In terms of future domestic assistance, the plaintiff stated that she intended to remain in the nurse's quarters at the hospital but that she may require additional assistance with cleaning and cooking. That concluded the cross-examination of the plaintiff. I observed that the plaintiff presented as an honest and reliable witness and have no hesitation in accepting her evidence without reservation.

Nicholas Galatoulas

1. Mr Galatoulas is a 24-year-old man who works full-time as a dietician. He is self-employed, working at various locations in Sydney with offices at the Barangaroo complex in Sydney.
2. He became friends with the plaintiff when they were both studying at the University of Wollongong. Like the plaintiff, he described the difficulties in finding parking spots near to the University, saying "it was always busy".
3. He said that he had parked in a similar location on Murphys Avenue over fifty times and that he was walking up Murphys Avenue at a "decent pace". He confirmed that he would occasionally offer the plaintiff lifts to and/or from University, having done so on 30 or 40 occasions.
4. Mr Galatoulas described the route which he and (by inference), the plaintiff would have taken on the day of the incident travelling up Murphys Avenue. He said that they would come out on the side road and walk up towards the roundabout, turning right into Murphys Avenue, and then would usually cross the road within about 50 metres. By reference to the photographs, he suggested that they would cross the road about 5 or 10 metres past the roundabout, past where the double line is commenced.
5. Whilst this appears to be at a point earlier on Murphys Avenue than the plaintiff recalled, nothing much turns on it. Both versions have the plaintiff and Mr Galatoulas on the road for some distance prior to reaching the point where the incident occurred.
6. Mr Galatoulas told the Court that he was "hugging the cars" and that the plaintiff was just on the outside of him. When asked why they would not travel on the grassed area he stated: "Well there was no pathway first of all, and second of all there was, it was never sort of clear way to get up there. It was sort of, it was easier to always walk on the road and it was, yeah, there was never a clear pathway" (T74.25).
7. In answer to the question of whether or not prior to the date of the incident he had seen other University students walking on the roadway he stated: "Yep. Students are always walking up and down the road 'cause there's cars parked all up and along that road." (T74.30).
8. Mr Galatoulas was asked about the location of the incident resulting in the injuries to the plaintiff. He thought that it was around the area of the retaining wall on the handrails. He thought that they had walked about 100 metres up Murphys Avenue before the incident occurred. He said they were closer to his car than they were to the roundabout: "just before the rails when it happened."
9. This contrasts slightly with the evidence of the plaintiff who thought they had just passed the handrails. Again, given the evidence of both witnesses they had been walking on the road for some distance, the precise point of impact is not a pertinent finding, and it would be sufficient to find that the point of impact was on the roadway between the retaining wall and the handrails.
10. Mr Galatoulas said that he heard a noise "a bit of a thud", and a yell, and then the plaintiff had fallen back behind him, as he kept walking without realising that she had been disturbed by the passing vehicle.
11. Mr Galatoulas gave some vague and imprecise evidence about his own employment. He stated that he had commenced working for himself at the beginning of this year and "it's slowly starting to get better" (T80.18).
12. In cross-examination, it was put to Mr Galatoulas that there was no reason why they could not have walked on the grass on the other side of Murphys Avenue. Whilst he initially agreed with that proposition, he went on to state that his recollection was there was a steep incline on that side of the road as well.
13. Mr Galatoulas was asked whether it was possible that they were walking on the grass immediately before reaching the retaining wall. He denied that allegation and stated that they were on the road the whole time.
14. Mr Galatoulas was cross-examined about statements made to the Police. Those statements are problematic for reasons which I will refer to below. Mr Galatoulas denied telling the police officer that they had been walking up the side of the street and had walked out to cross the road when the plaintiff was hit. He maintained that having crossed Murphys Avenue just past the roundabout, they remained on the road the whole time. Specifically, he denied that they ever walked on the grassed section to the left of Murphys Avenue.
15. When asked whether there was anything stopping them from walking up the grassed section of the road until they reached the retaining wall at 107 Murphys Avenue, he rejected the suggestion stating that there were a few obstacles, including a bush and it would have been necessary to weave in and out of cars in order to travel on the grass at any time. He stated: "And I'm not saying that walking on the road was, you know, the right thing, but naturally we would have just walked on the road rather than trying to weave in and out of cars and trying to get onto the grass" (T91.8-10)
16. Mr Galatoulas was cross-examined about the access to the grassed area via the stairs, which were highlighted by the parallel railings. He agreed that there was nothing to stop anybody from going up those stairs. On examining a photograph (Exhibit C), he agreed that there was nothing there to stop them from having walked on the grass.
17. In terms of sightlines, Mr Galatoulas agreed that had they looked to their rear prior to the incident, there was nothing to stop them from seeing the approaching vehicle.
18. It was asked whether he heard the vehicle approaching and he denied that he had, but said that even if he had "we could have just thought it was a passing car".

Senior Constable Dinning

1. In March 2016, Senior Constable Dinning was stationed at Wollongong Police Station performing general duties. He arrived at the scene of the incident involving the plaintiff at about 5:20pm. There was nobody there so he then went to Wollongong Police Station. He stated that he spoke to a female who was to be seen by a doctor and that they had a brief conversation.
2. He also recalls, when he was at the scene, observing a large white van parked on the left-hand side of the road just east of 107 Murphys Avenue. There were other cars parked both in front of and behind that van along the side of the road.
3. At the time of giving evidence, the police officer did not have any recollection of the version of events provided by the plaintiff.
4. By reference to the word "they" in the police records, he assumed that he spoke to both the plaintiff and Mr Galatoulas.
5. Senior Constable Dinning also verified the notebook and COPS report in relation to the incident. He told the Court that he prepared a site diagram, dated 9 March 2016, based on what had been said to him by the driver.
6. In cross-examination, Senior Constable Dinning agreed that the police documents in respect of the incident were not particularly detailed as it was a P5 accident not requiring an investigation. He recalled speaking with the driver and told the Court that the driver's licence had a number of conditions attaching to it, including that he was not to drive beyond a certain distance from his house, which he had not done.
7. Senior Constable Dinning was familiar with the area where the accident occurred as he lived in the area before joining the Police Force. He confirmed that the parking in Murphys Avenue was mostly taken up by University students during the day. He told the Court that he had observed University students in the area walking to and from University. He stated "there was students everywhere" (T107.33). When asked whether he had observed students walking out on to the roadway, his response was "Yeah, all over the place" (T107.36).
8. Senior Constable Dinning attended the driver's residence and inspected the vehicle involved in the incident. There was no evidence of fresh damage.

The Driver's Version

1. The documents most relevant to liability are those which relate to what the driver said occurred.
2. The driver's earliest account was provided to Senior Constable Dinning on the night of the accident. It reads: "She have (sic) walked out from behind a big white car, I believe she was about to cross the road. She was waiving (sic) a bag. I've not seen her from behind the van and I have hit the bag. She was standing sideways. I was travelling west going about 45kph" (Exhibit 9)
3. On 21 July 2016, the driver completed a CTP insurance accident report form. In that form he stated: "1. I was driving west along Murphy Avenue Keiraville about 4.00p.m.; 2. Multiple cars were parked on the southern side of the street; 3. The girl stepped out from behind 2 parked cars and continued to walk onto the streep (sic); 4. Contact was made between the girl and she side of the car in between the front and rear passenger doors on the passenger side (sic); 5. I stopped and parked in Murphys Avenue to render assistance; 6. Other people assisted her and phoned an ambulance; 7. The ambulance officer said the girl was okay and I can go; 8. The ambulance took the girl to hospital".
4. In answer to the question as to what speed he was travelling, the driver indicated 40 kilometres per hour.
5. The driver was also required to draw a diagram in the form. It is a little unclear as to precisely what the diagram depicts, save that he seemed to think that the plaintiff entered upon the roadway from between two parked vehicles in a line of continuous vehicles (see Exhibit 8).

Photographic exhibits

1. Exhibit B, C, D, E, F, H, J and K are all photographs taken in the vicinity of where the incident occurred. In respect of those photographs I make the following observations: 1. Exhibit B shows the point of the grassed area to the south of the road where a retaining wall blocks a pedestrian's passage. Although it might be said that a pedestrian could have navigated his or her way around the retaining wall to the extreme right of the photograph, without entering upon the roadway, that was not put to the plaintiff or Mr Galatoulas; 2. Exhibit C again shows Murphys Avenue in a westerly direction. That is the direction in which the plaintiff was walking and the driver was driving his motor vehicle. It also shows the location of the hand rails referred to by both the plaintiff and Mr Galatoulas; 3. Exhibit D shows the same aspect but from a point further east on Murphys Avenue. The white van referred to by the Police Officer and the driver was generally in the position of the black car shown on the left hand side in Exhibit D; 4. Exhibit E shows Murphys Avenue in the opposite direction. That is, facing east. The dramatic change in landscape on the grassed section to the south of Murphys Avenue is apparent in that photograph; 5. Exhibit K also depicts the more severe terrain on the southern side of Murphys Avenue, in the area leading up to where the white hand railings are, leading to the property shown in the photograph; 6. Exhibit H is useful to understand the evidence of Mr Galatoulas. It was his evidence that they came from the direction indicated by the street to the left hand side of the round-about, turned right, walked up Murphys Avenue for a short distance before crossing Murphys Avenue just past the point where the double white lines commence; 7. Exhibit J shows Murphys Avenue from the point identified by Mr Galatoulas as generally where they crossed the road facing a westerly direction. It can be seen that there is a bushy overgrowth on the southern side immediately past the round-about which may have interfered with their ability to walk on the grassed section in that vicinity.

The Plaintiff's Documentary Medical Evidence

1. Exhibit G comprises documents of two types. The first three documents are reports by medico-legal experts. The remainder of the documents are the clinical notes of treating medical professionals.
2. Dealing with the latter first, I observe that no significant reliance was placed upon these documents by either party, save for the plaintiff's initial attendance upon Dr Perriment.
3. The documents also include the Illawarra Shoalhaven Health District records for Wollongong Hospital, which indicate that the plaintiff arrived at about 5:30pm on 9 March 2016. The triage nurse recorded the following: "Hit to back approximately 45 km. c/o thoracic back pain Nil rib pain Nil LOC ABCD intact Smiling at triage HxO OESOPH stricture"
4. It is plain from that document that the only complaint made by the plaintiff to the nurse upon arriving at the Hospital was thoracic back pain, with a history of being hit in the back by a motor vehicle travelling at 45 kilometres per hour.
5. When seen by the Registrar, the plaintiff indicated that she had been hit from behind by a car to the right side of her body and that she spun around before falling to the ground. She complained of initial pain to the mid thoracic region, spreading to the rest of her back over the next hour. She denied any other areas of pain.
6. Although the plaintiff was wearing a collar when seen by the Registrar, an examination of her cervical spine indicated no tenderness, pain, limitation of movement or distracting injuries. An x-ray confirmed that there was no fracture of the cervical spine. The Registrar stated that there was "diffuse thoracic region ache" and recommended analgesia.
7. There is a further note by the trauma nurse which confirmed that the plaintiff complained of pain to her right flank area and thoracic back pain. There was a hematoma to the left forearm and small abrasions to both hands.
8. The clinical notes from the plaintiff's GP confirmed that she had attended on 18 March 2016. At that time, the plaintiff presented with pain to the right of her mid-thoracic area. There was also reference to muscle spasm. The plaintiff was commenced on Tramadol, though that was ceased due to an allergy.
9. The plaintiff next saw Dr Perriment on 19 March 2016 following a radiological examination. It was noted that "she still has pain in her upper back … to the right of her mid-thoracic area". Tenderness was noted in the vicinity of T8 and T9, as well as tender lower ribs on the left-side posteriorly.
10. Also in the clinical nature were documents produced by the University Medical Practice, at which Dr Jennifer Bowler worked. She first saw the plaintiff in relation to the accident on 1 June 2016, when the plaintiff was applying for academic consideration for one of her exams. Dr Bowler was told that the plaintiff had two exams on the same day and she was "struggling with back pain". The plaintiff stated that she could not sit through two exams in one day, and wanted to do one as a supplementary. That application was supported by a letter from Dr Perriment.
11. The plaintiff's medico-legal case comprised reports by Dr Khan, general surgeon dated 13 August 2017, and two reports by Dr Porteous, occupational physician, the first dated 15 December 2016 and an updated report dated 29 June 2018. Whilst objection was taken to the tender of the second report, that objection was dealt with and a ruling was made, the subject of the separate judgment.
12. The plaintiff saw Dr Khan on just one occasion, namely 10 August 2017. In describing her condition to Dr Khan, the most dominant factor was the complaint of pain to the mid thoracic spine, which spread to both sides of her back and around her ribcage. Other complaints were made in relation to the neck, shoulders and lumbar spine. Given the absence of any contemporaneous complaint concerning those areas, whatever those conditions were, must be considered less significant than the injury to her mid-back, about which there has been consistent complaint.
13. In terms of activities of daily living, the plaintiff confirmed that, prior to the accident, she was living with her family and would attend to a share of the household duties, including washing, making her bed, vacuuming, mopping, doing the dishes and helping her mother with cooking. After the accident, the plaintiff had to rely upon her mother to do her share of the household chores.
14. The history of employment provided by the plaintiff in Court was corroborated by the history provided to Dr Khan. That is, she was working 15 to 20 hours per week before the accident then, after several weeks off work, returned to working on a reduced basis, working just 3 hours per week.
15. The plaintiff told Dr Khan that she took Lyrica, Tramadol, and Panadeine Forte, as required for pain relief. She is unable to take anti-inflammatory medication due to oesophageal stricture.
16. Notwithstanding the absence of contemporary complaints in relation to some of the following conditions, Dr Khan diagnosed the following as being caused by the subject accident: 1. muscular ligament injury at the cervical spine; 2. muscular ligament injury and facet joint trauma at the thoracic-lumbar spine; 3. muscular ligament injury and facet joint trauma at the lumbar-sacral spine; and 4. chronic post-traumatic pain syndrome.
17. Dr Khan considered the plaintiff's prognosis to be guarded. In terms of future treatment, he recommended follow-up treatments with her general practitioner about six times a year for a couple of years and then on an as-needed basis, at a cost of about $100.00 per visit. In addition, he recommended analgesic and anti-inflammatory medication at a cost of about $70.00-$80.00 a month. He also suggested a referral to a pain management specialist. Finally, Dr Khan suggested a self-directed exercise program carried out in a heated pool and a gymnasium at a cost of about $2,000.00-$3,000.00 a year.
18. Overall, I found Dr Khan's report generally unpersuasive and his recommendations for treatment excessive.
19. In terms of employment, Dr Khan's opinion was that the plaintiff would require alternative employment of a sedentary or semi-sedentary nature where she does not have to carry out repetitive bending, twisting, at or above shoulder activities or jobs that do not require prolonged sitting. He stated that the plaintiff would only be able to do part-time work of up to three or four hours per day, two to three days a week.
20. Again, I reject Dr Khan's opinion in relation to the plaintiff's future working capabilities. His opinion is disproportionate to the injury suffered and contradicted by what the plaintiff has, in fact, done since the accident.
21. Opinions expressed by experts, such as Dr Khan, misrepresent the true situation resulting in litigation which, without reliance upon such unsupported views, may otherwise be unnecessary. Unfounded opinions such as that of Dr Khan create unrealistic expectations in the mind of plaintiffs which results in unduly lengthy disputes between parties and the misuse of the Court's time in determining non-issues.
22. The plaintiff was also seen by Dr Andrew Porteous, occupational physician, on 13 December 2016. On examination, Dr Porteous was unable to find any disability in relation to the plaintiff's cervical spine, shoulder, lumbar area and lower limbs. In relation to the thoracic spine, his examination demonstrated right rotation restriction compared with the left, with mild guarding but no spasm.
23. Dr Porteous diagnosed a muscular-ligamentous strain of thoracic spine and thought that she would have symptoms at least for the medium term which, thereafter, should settle and resolve. He had no doubt that her condition was caused by the accident and that the treatment that which she had received was both reasonable and necessary.
24. In terms of future treatment, he recommended review by an orthopaedic surgeon ($750.00), a referral to a sports physician comprising two or three consultations in the first year followed by annual review for three years. The initial cost would be approximately $600.00 with follow-up consultations being approximately $250.00.
25. Dr Porteous also supported the plaintiff's need for an exercise physiologist and suggested that she would need two sessions a week over twelve weeks of a cost of between $85.00 and $90.00 per session, followed by a follow-up series of sessions of a further six weeks, within six months of the first series, and a further six months series, on average every one to two years thereafter.
26. Dr Porteous also believed that the plaintiff would be assisted by Panadol at a cost of about $25.00 per month for one to three years. He thought that she should see her GP in relation to the condition, on average about once a year ($75.00 per visit).
27. In terms of future work capabilities, Dr Porteous compared the plaintiff to an "able-bodied person" and suggested that she would have more difficulty getting work, stating that she had reduced work capacity and employment options.
28. Regarding domestic assistance, Dr Porteous expressed the opinion that the plaintiff's current gratuitous care is reasonable and necessary. He thought that she would require about two hours per week of domestic assistance for the medium-term (one to three years). This falls below the statutory threshold and does not attract an award of damages. As example of his professional integrity, experienced counsel for the plaintiff did not submit otherwise.
29. In his updated report dated 29 June 2018, Dr Porteous revised his opinion based upon an examination of the plaintiff which occurred on 28 June 2018.
30. The plaintiff described her current condition by reference to mid-thoracic pain assessed at about five out of ten on a pain scale, increasing to seven or eight out of ten after sitting or driving for an hour. She takes Panadol Osteo twice a day for pain relief and receives an hour a day of domestic assistance from her mother.
31. Contrary to the opinion expressed in his first report, Dr Porteous was of the view that the plaintiff's prognosis "is now guarded". This is unsurprising given the continuation of symptoms but must be understood in light of his original opinion regarding a favourable prognosis. He suggested the following on-going treatment: 1. annual orthopaedic review at the cost of about $850.00 per visit; 2. referral to a sports physician requiring two or three consultations in the first year followed by an annual review for three years. The initial consultation would cost $1,200.00 and the follow-up consultations at about $700.00 each; 3. referral to a pain physician for advice on regards to rehabilitation and prescribed medication. He thought she should see such a specialist two to three times in the first year (at a total cost of $2,300.00) followed by an annual consultation of $900.00; 4. he accepted the fact that the plaintiff would require an exercise physiologist-supervised program, focusing on increasing cardio-vascular fitness. He suggested two sessions a week over twelve weeks at a cost of $115.00 per session. He then stated that she would reasonably need one further series for six weeks within six months (at a cost of $1,600.00), and then a six week series every one to three years thereafter to restore function; 5. the plaintiff requires Panadol or similar at a cost of about $25.00 per month for the long-term; 6. finally, Dr Porteous did suggest that the plaintiff should see her GP two to four times a year at a cost of about $110.00 per consultation.
32. I consider these recommendations to be unreasonable, particularly when measured against the treatment sought by the plaintiff in the most acute phase of her injuries.
33. In terms of employment, Dr Porteous repeated his earlier opinion that the plaintiff had a reduced capacity compared to an able-bodied person and thought that she would suffer a long-term reduced period of employment and remuneration. Whilst the premise of his opinion may have some foundation, his conclusion does not. As I reason below, the appropriate approach to the claim of reduced capacity for work is to allow a buffer.
34. In terms of domestic assistance, Dr Porteous' opinion, having recently reviewed the plaintiff, is that she requires two hours a week of professional domestic and home care assistance. Again as a testament to the credibility of counsel for the plaintiff this has been reduced to a claim of one hour per week, which I accept.

Defendant's Medical Evidence

1. The defendant relied upon material from the Wollongong Hospital, to which references have already been made.
2. In addition, reliance was placed upon a report by Dr Muratore dated 1 August 2017 in respect of a consultation which occurred that day. The plaintiff told Dr Muratore that she had some difficulties at work following the accident. In particular, she stated that she was "not 100% confident with all my injuries, performing to 100% of my ability". Prior to the accident, she was able to work six days a week but could not do that now. According to the history provided to Dr Muratore on 1 August 2017, the plaintiff had not worked at Typo for some two months, but became unable to accept regular shifts due to the fact that she was unable to replenish stock, work to closure of the store and could not perform the visual merchandising tasks.
3. Despite her active lifestyle before the accident which involved training five days a week at a gymnasium, the plaintiff told Dr Muratore that she was no longer performing any of that exercise due to her widespread pain.
4. To Dr Muratore, the plaintiff described neck pain in the area C7 radiating to the top of her left shoulder associated with a tingling sensation in her left arm. She also described mid-thoracic back pain, which is her "worst pain". That pain is easily aggravated by normal activities. She also reported central lower-back pain which is not the same as thoracic pain. It is recurrent and not constant.
5. Dr Muratore diagnosed a soft tissue injury of the thoracic spine and possibly lumbar spine now resolved. He stated that the soft tissue injuries are known to recover over a period of six to eight weeks, and may take up to twelve weeks. He suggested that the plaintiff's presentation was not explicable "on a purely organic basis". Nevertheless, he found that the soft tissue injuries were causally related to the subject accident.
6. Dr Muratore had reservations about the veracity of some of the plaintiff's complaints and thought that there was no ongoing treatment which was indicated.
7. In terms of domestic assistance he noted that in the Notice of Commencement of Physiotherapy Form, the plaintiff stated that she was independent in personal care, mobility, transport and household tasks. Dr Muratore found that the plaintiff had no need for domestic assistance.
8. Dr Muratore considered the plaintiff's prognosis to be good, stating that she could resume her normal life now if she was willing to do so. He noted that although the plaintiff stated that she had difficulty lifting anything more than one or two kilograms, at the completion of the assessment she was able to pick up her bag, the weight of which Dr Muratore estimated to be in the order of five kilograms.

Liability Experts' Report

1. For no apparent reason, the parties obtained opinions from experts on the question of liability.
2. The first report was by Dr McIntosh dated 23 June 2017.
3. Dr McIntosh's opinion was formed by an interview between Senior Constable Dinning and the driver, which was extracted at pages 8, 9, 10, 11 and 12 of his report. That portion of the report was objected to and not pressed. It is difficult to discern the extent to which the author of the report relied upon that section of the report which was then not the subject of evidence. There was, nevertheless, some evidence from Senior Constable Dinning directly which provided some of the information extracted from the report following objection.
4. His opinion was directed almost entirely to the question of whether or not there was an impact between the vehicle and the plaintiff's body and, if so, what the likely dynamics of the movement of the plaintiff's body were based upon objective features of damage to the vehicle and the like, or in this case, the absence of same. I expect that the need for that analysis was made necessary by the allegation made by the plaintiff that she was struck by the defendant's motor vehicle as it passed her. Her evidence under oath was that she could not be sure whether the motor vehicle struck her person or her bag.
5. In determining that question, I have taken into account the opinion of Dr McIntosh that the plaintiff was not hit from behind by the driver's vehicle. Frankly, that also accords with common sense in circumstances where there is the complete absence of any consistent objective damage to her body, or to the vehicle suggesting an impact of that nature.
6. Nevertheless, that caused the plaintiff's legal representative to obtain a report from Grant Johnston, Consulting Engineer, dated 10 November 2017. He was asked to review some material, including the report by Dr McIntosh.
7. No doubt at great expense, he attended the scene of the accident on 30 June 2017, took photographs and conducted a geometric survey using a drone to create auto-mosaic images and 3D models of the incident location. The basis of the need for this is not, at all, apparent.
8. Mr Johnston found that the driver should have been aware of the presence of the plaintiff on the roadway for at least five seconds prior to impact. In a statement which one might consider obvious, he said that "the driver could have stopped or slowed but in a practical sense all that was required in this instance was to provide additional lateral spacing to the pedestrian by moving his vehicle further to the right as he approached the position of the pedestrians". That is, he could have steered around the plaintiff.
9. At the conclusion of the 32 page report, Mr Johnston agreed with the conclusions reached by Dr McIntosh and suggested that the cause of the plaintiff falling to the ground could have been as the result of a "partial overlap".
10. A supplementary report was obtained from Dr McIntosh (dated 29 December 2017), in which he reviewed some medical material and the report by Mr Johnston. He rejected the idea of a shallow overlap between the vehicle and the plaintiff based upon the absence of damage to the vehicle, and the nature of the injuries suffered by the plaintiff. At the end of the report, Dr McIntosh agreed with Mr Johnston's conclusion that the driver could have steered around the plaintiff to avoid the accident.
11. This is another example of a case where the parties have incurred considerable expense in obtaining reports from experts as to factual matters which ought not to have been in dispute. Many pages of expert evidence was tendered in the proceedings. Thankfully, the experts were not required for cross-examination. In my opinion, it was not necessary for the Court to have regard to "expert" opinion evidence in order to determine liability in this case. Whilst it is a matter for a costs assessor, it is difficult to see how either party could be entitled to recover the costs incurred by engaging experts and relying upon their opinion.

Factual Findings

1. Before setting out the matters of fact about which the Court is satisfied to the requisite degree, I should note that the Court found the plaintiff to be a reliable witness. Her evidence, as to the occurrence of the incident was materially supported by the evidence of Mr Galatoulas, whom I also found to be a reliable witness.
2. Unfortunately, the driver was not available, by reason of his passing, to give evidence at the hearing. His account is different to the plaintiff and Mr Galatoulas. But it is not without problems.
3. The diagrammatic representation of the driver's account provided by the Police Site Diagram (Exhibit 2) seems to have the plaintiff walking out from between two parked cars before coming into contact with the front of the driver's vehicle (on the passenger's side), somewhere in the vicinity of 107 Murphys Avenue.
4. The diagram accompanying the Accident Report Form has a number of similarities, but, also is different in a material respect to that provided by the Police. In the diagram in the Report Form (Exhibit 8) the driver depicts a scene whereby the plaintiff walked out from between two parked vehicles and seemingly into the side of the driver's vehicle. That interpretation of the diagram is confirmed by the statement contained in the Accident Report Form that "contact was made between the girl and the side of the car in between the front and rear passenger doors on the passenger side".
5. The significant difference between the accounts provided by the plaintiff and Mr Galatoulas, on the one hand, and the driver on the other, is that the driver had the plaintiff walking out from between two parked vehicles onto the surface of the roadway prior to anything occurring.
6. One matter of similarity, however, arising from the evidence of the plaintiff, the evidence of Mr Galatoulas, the Police Site Diagram (Exhibit 2) and the diagram in the Accident Report Form (Exhibit 8) is that all accounts seem to have the incident occurring at a point in the vicinity of 107 Murphys Avenue, being in the vicinity of the steps leading from the roadway to that address.
7. Having given careful consideration to all of the evidence and the manner in which the evidence was given by the plaintiff and Mr Galatoulas, I prefer their version of events. Their version attracts greater credibility given that it is not entirely exculpatory as to fault on the part of the plaintiff. Both witnesses acknowledged that they should not have been walking on the road with their backs to oncoming vehicles. The plaintiff agreed that she was walking in a path which would be traversed by vehicles travelling in a westerly direction.
8. Accordingly, on the question of liability, I make the following findings: 1. at about 4:30pm on 9 March 2016, being a weekday, the plaintiff was walking on Murphys Avenue at Keiraville, near Wollongong, in the state of New South Wales; 2. at the same time, the driver was driving his motor vehicle in the same direction on the same road; 3. the configuration of Murphys Avenue in the vicinity of where the accident occurred permitted the parking of vehicles on both the northern and southern sides of the street, leaving sufficient space for two vehicles to safely pass each other on the trafficable section of the roadway; 4. there were vehicles parked on both the northern and southern side of Murphys Avenue in all relevant areas of it at the time of the incident; 5. the plaintiff was walking on the road surface and to her left was Mr Galatoulas, to whose car they were walking; 6. Mr Galatoulas was walking on the southern-most edge of the trafficable lane for westbound traffic. I accept his evidence that he was "walking close to or hugging the parked cars"; 7. I find that the plaintiff was positioned to the right of Mr Galatoulas and that she was walking on Murphys Avenue in an area which would ordinarily be occupied by west-bound vehicles; 8. there were obstacles which affected the plaintiff's ability to walk off the road on the southern side of Murphys Avenue in a westerly direction; 9. those obstacles included trees or bushes in the vicinity of the roundabout but, most significantly, a retaining wall effectively blocking pedestrian traffic in a westerly direction on the southern side of Murphys Avenue; 10. on examination of the photographs (in particular Exhibit D and Exhibit E), I find that there was no reason why the plaintiff and Mr Galatoulas could not have walked on the grassed section of the northern side of Murphys Avenue such that they would have been off the road entirely; 11. I accept the evidence of the plaintiff and Mr Galatoulas that they had been walking in the position previously described for at least 100 metres prior to any contact occurring between the plaintiff or her bag and the driver's vehicle; 12. as the plaintiff and Mr Galatoulas were in the vicinity of the steps bounded by white handrails out the front of 107 Murphys Avenue, some contact occurred between the driver's vehicle and the plaintiff's bag, which caused her to fall to the ground; 13. had it not been for that contact, I find that the plaintiff would not have fallen or suffered any injury; 14. there was sufficient time, distance and lateral space for the driver to pass the plaintiff and Mr Galatoulas without coming into contact with either the plaintiff or her bag; 15. it would also have been open to the driver to sound his horn or to bring his vehicle to a stop, rather than pass closely by the side of the plaintiff; 16. in the area where the accident occurred there were many University students walking to and from their cars. In the words of Mr Galatoulas, I find that "students were always walking up and down" the road; and 17. finally, given the driver lived locally, that is a matter of which he was, or ought to have been, aware.

Breach of Duty of Care

1. As would be apparent from the foregoing, I find that the driver breached his duty of care to the plaintiff.
2. The question of duty of care being owed by the driver of a motor vehicle on a public road, to a pedestrian on that road, is indisputable.
3. In considering the question of breach of duty of care, I have had regard to principles of common law and also to the statutory embodiment of those principles such as is reflected in Part 1A of the Civil Liability Act 2002 ('CLA').
4. In respect of the general principles relating to liability to s5B of the Act, I make the following findings: 1. the risk of harm to the plaintiff was foreseeable or ought to have been foreseen by the driver; 2. the risk of harm was not insignificant; 3. in the circumstances, a person in the position of the driver would have taken precautions to avoid harm to the plaintiff; 4. in making that last finding, I take into account the probability that harm would occur if care were not taken, I have also had regard to the likely seriousness of the harm which I consider to be significant; 5. the burden of taking precautions to avoid the risk which I consider to have been minimal; and 6. the social utility of the activity that creates the risk of harm, in respect of which plainly there is a social utility in drivers of motor vehicles being able to drive those vehicles on public roads, subject to proper care to guard against injury to other persons, be they pedestrians or other road users.
5. In view of the evidence that the plaintiff and Mr Galatoulas had been walking on the road for some 100 metres, there was ample time for the driver to see the plaintiff. I find that this was sufficient time and distance within which the defendant should have taken precautions to avoid the risk of injury to the plaintiff.
6. As previously stated, such precautions included sounding the horn of his vehicle in order to attract the attention of the plaintiff, bringing his vehicle to a stop, or passing the plaintiff on her right hand side, permitting sufficient distance to avoid the risk of contact.
7. The driver's failure to see the plaintiff at all is, of itself, a breach of his duty of care. His failure to take appropriate, available precautions is a further breach of that duty.
8. Accordingly, I find that the driver breached his duty of care to the plaintiff and, by reason of the operation of statute, the named defendant is liable in damages to the plaintiff, subject to any reduction for contributory negligence.

Contributory Negligence

1. Section 138 of the Motor Accident Compensation Act 1999 ('MACA') states that the common law and enacted law as to contributory negligence apply to an award of damages in respect of motor accidents, with some exceptions which have no bearing upon this case.
2. Section 138(3) requires the Court to reduce the damages recoverable in respect of the motor accident by such percentage as the Court thinks just and equitable in the circumstances of the case.
3. Whilst Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 represents an accurate statement of the common law position in respect of contributory negligence, sections 5R and 5S of the CLA also apply to claims in respect of motor accidents.
4. Section 5R states the principles that are applicable to determining whether a person has been negligent also apply in determining whether a person has been contributorily negligent. The standard to be applied is that of a reasonable person in the position of the plaintiff, based upon what he or she knew or ought to have known at the time.
5. By reason of s5R, the Court is to have regard to the general principles relating to liability set out in s5B of the CLA which provides as follows: 1. A person is not negligent in failing to take precautions against a risk of harm unless: 1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and 2. the risk was not insignificant, and 3. in the circumstances, a reasonable person in the person's position would have taken those precautions. 1. In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): 1. the probability that the harm would occur if care were not taken, 2. the likely seriousness of the harm, 3. the burden of taking precautions to avoid the risk of harm, 4. the social utility of the activity that creates the risk of harm.
6. In order for the plaintiff to have been negligent in a contributorial sense, it is necessary that the pre-conditions set out in s5B(1)(a)-(c) are met.
7. In respect of those matters: 1. the risk of harm was foreseeable, that is, that the plaintiff knew or ought to have known that walking in the trafficable lane of the motor vehicle gave rise to a real risk of injury, in respect of vehicles approaching her from behind, which she may not be able to see or have any notice; 2. I consider the risk of injury in those circumstances significant; 3. I find that a reasonable person in the position of the plaintiff would have taken the precaution of either walking in the direction of oncoming traffic, or walking off the road completely. In making that determination, I have taken into account the considerations referred to in s5B(2) of the CLA; 4. whilst the route adopted by the plaintiff and Mr Galatoulas may well have been more convenient than walking on the northern side of Murphys Avenue on the grassed section, or walking on the northern side of Murphys Avenue facing oncoming traffic, the risk which that posed was to create a likely seriousness of harm; 5. I find that a reasonable person in the position of the plaintiff and Mr Galatoulas would either have walked on the northern side of the road surface in the direction of oncoming traffic in order to see it approaching, or alternatively, on the grassed section of the northern side of Murphys Avenue; 6. furthermore, I find that if the incident occurred at a point to the west of steps leading from Murphys Avenue to 107 Murphys Avenue then a reasonable person in the position of the plaintiff would have availed herself of that access to the grassed surface on the southern side of Murphys Avenue. Unfortunately, the evidence does not permit a precise finding as to the point of impact, there being no objective evidence of same. The subjective evidence as to its location is ambiguous and does not permit a certain finding. That, however, is not necessary in circumstances where the stated and clear intention of the plaintiff and Mr Galatoulas was to remain on the road surface until they reached his vehicle, further to the west of the stairs.
8. In determining the extent of the contributory negligence to be applied to the plaintiff's damages, the Court is mindful of the comments in respect of same made by the New South Wales Court of Appeal in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139, per Basten JA, and in T and X Company Pty Ltd v Chivas [2014] NSWCA 235, also per Basten JA.
9. In Boral Bricks (No 2) Basten JA undertook an exhaustive analysis of the law relating to contributory negligence. After referring to s138 of MACA, his Honour noted that s9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ('the 1965 Act'), is also part of the enacted law to which the Court is to have regard in considering contributory negligence, pursuant to s138 of MACA.
10. His Honour also considered the operation of s5R of the CLA. Having regard to all legislation that bears upon the determination of contributory negligence in relation to motor accidents, his Honour referred to it as being a "somewhat complex statutory scheme" [86].
11. Importantly for the present case, the Court diluted the significance which previously attached to the operators of potentially dangerous heavy machinery and fast motor vehicles. Comparing a dangerous heavy machine and fast vehicle, to a slow-moving fork lift, his Honour stated at [99]: "That is, no distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally."
12. His Honour stated that a purposive approach to the operation of s5R and s5B require that the approach be adopted.
13. These matters referred to statements of general principle arising on the facts in Boral Bricks (No 2), where no precise resemblance to the present facts exist.
14. The principle extracted was, however, confirmed in the decision of the New South Wales Court of Appeal in T and X Company Pty Ltd v Chivas [2014] NSWCA 235, in which Basten JA stated (at [54]): "The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety."
15. It was submitted on behalf of the plaintiff that if contributory negligence arose, it would be "so minimal as to be almost trivial" (MFI 7). I do not agree
16. On behalf of the defendant, it was submitted that contributory negligence "ought to be at 40%, having regard to the plaintiff's serious want of care for her own safety".
17. I prefer the defendant's submission over the plaintiff's submission, for the following reasons: 1. the plaintiff's analysis preceded upon the erroneous approach of comparing the relationship between the parties as one being the driver of a "lethal" motor vehicle, and the other being a vulnerable pedestrian; 2. the plaintiff stated that she was aware of the fact that she was walking in the trafficable westbound lane with her back to oncoming traffic; 3. as found, there were other options available to the plaintiff which would have avoided or reduced the risk of harm, such as walking on the southern nature strip, walking towards oncoming traffic, or if the position had been reached, walking up the stairs to 107 Murphys Avenue and then along the grassed section.
18. Nevertheless, the plaintiff's departure from the standard of care of a reasonable person must be compared against that of the driver's in circumstances where it was has admitted on behalf of the driver that he failed to see the plaintiff or Mr Galatoulas at all.
19. In my opinion, it would be appropriate to apportion fault by reducing the plaintiff's damage by one third on account of contributory negligence.

Causation

1. Having determined the question of breach (of the driver of his duty to the plaintiff and the plaintiff to herself), I am required by s5D to be satisfied as to causation. In my opinion, both the conduct of the driver and the conduct of the plaintiff were necessary conditions to the occurrence of harm suffered by the plaintiff. Had the plaintiff and the driver taken the precautions identified above then the plaintiff would not have suffered the harm that is the subject of this claim.
2. Further, I find that the parties have discharged their respective onus of proof in respect of same.

Actuarial Factors

1. In assessing damages I have adopted, where necessary, the following assumptions: 1. date of birth: 14 October 1995; 2. date of accident: 9 March 2016; 3. age at date of accident: 20 years; and 4. age at date of hearing: 22 years.

Heads of Damages

1. The plaintiff seeks damages under the following heads of damage: 1. past treatment expenses; 2. future treatment expenses; 3. past economic loss (including lost superannuation); 4. future economic loss (including future loss of superannuation); and 5. future domestic assistance.
2. I shall consider each in turn.

Past Treatment Expenses

1. The plaintiff prepared a Schedule of Out of Pocket Expenses (Exhibit N). It made out a claim in the sum of $5,771.42. Of that amount, the defendant agreed to $2,662.30.
2. Items in dispute included an MRI scan of the cervical spine in the sum of $700.00. This was disputed on the basis that the plaintiff did not suffer an injury to her neck in the subject accident. I agree and do not allow that sum.
3. The plaintiff also sought reimbursement of $17.55 in respect of medication. In my view, that is reasonable and should be allowed.
4. The remainder of the items in dispute relate to exercise physiology and gym membership.
5. In relation to exercise physiology, I propose to allow 10 sessions at a cost of $70.00 per session being for $700.00.
6. In relation to gym memberships, I note the evidence of the plaintiff that she was a "gym junkie" before the accident and would, therefore, have incurred the cost of membership in any event. I do not propose to allow any amount for that expense.
7. Accordingly, I allow the sum of $3,379.85, rounded to $3,380.00 on account of past treatment expenses.

Future Treatment Expenses

1. In the plaintiff's Schedule of Damages (MFI 5), the plaintiff claims a sum of $38,741.00 for future out of pocket expenses comprising the following: 1. orthopaedic review: $850.00; 2. sports physician, four visits: $1,700.00; 3. pain physician, four visits: $2,300.00; 4. exercise physiologist, in the sum of $23,645.00; 5. pharmaceuticals, in the sum of $10,246.00.
2. In my opinion, the amount claimed is excessive and is not justified having regard to the nature and extent of the plaintiff's injuries and disabilities. I have allowed the following: 1. ten further consultations with an exercise physiologist at a cost of $70.00 per visit ($700.00); 2. pharmaceutical expenses in the amount of $2.50 per week for life, that is, approximately $2,500.00.
3. The total therefore is $3,200.00.

Past Economic Loss

1. In the plaintiff's Schedule of Damages, she claims the following amounts by way of past economic loss: 1. loss of wages from Typo in the sum of $12,420.00 plus superannuation in the amount of $1,366.20; 2. loss of income by reason that she did not continue in her position with Active Ability Pty Ltd assessed at $4,203.00 plus superannuation of $462.33; 3. four days off work from Hospital to attend Court, assessed at $783.14.
2. This adds up to be $19,234.67, but is stated in MFI 5 to be $22,636.94.
3. In order to understand the basis for this claim, reference must be had to the Further Amended Statement of Particulars filed 27 July 2018. The foundation for the claim of loss of earnings from Typo is based upon average earnings of $361.00 net per week, calculated from the period 9 November 2015 through to 14 February 2016. The difficulty with that sample is that it included the Christmas period, during which the plaintiff was not attending University and, by reference to the Statement of Particulars, was working longer than usual hours. That had the effect of distorting the average income when compared to her earnings over the course of an average year.
4. It is then said that for the period 29 February 2016 through to 20 May 2018, the plaintiff earned on average $74.61 net per week, giving arise to a weekly average loss of $287.00.
5. The Particulars then go on to express a claim which was based upon the average earnings in the six months prior to the accident, set to be $189.61 less the average earnings in the period up to 20 May 2018 said to be $74.61 giving rise to an average weekly loss of $115.00, resulting in a total loss of $12,420.00 plus lost superannuation.
6. I find that, but for the accident, the plaintiff would have continued working at Typo up until the date she ceased working there (in about May 2018).
7. I do not accept that the plaintiff's actual past economic loss is capable of precise calculation, as other factors would have affected her earnings, such as employment placements referred to in the evidence, holidays and time taken for study.
8. Upon leaving Typo and commencing with Active Ability, the plaintiff was then earning approximately $1,157.00 net per week, which dropped to $973.91 upon taking up the position with Condobolin Hospital.
9. I accept the plaintiff's evidence that she found working for Active Ability difficult as it involved travelling and carting her work from patient to patient and that she has done all she can to mitigate her loss by taking up employment with the Hospital, albeit at a loss.
10. Given the imponderables in relation to the plaintiff's claim for past economic loss and economic loss generally, I propose to approach the assessment of both heads of damages by way of buffer.
11. With regards to past economic loss, I allow a buffer of $20,000.00, including loss of superannuation benefits.

Future Economic Loss

1. In assessing any claim for economic loss, the Court must have regard to the provisions of s126 of the MACA, which provides as follows: 1. A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. 2. When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. 3. If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
2. The plaintiff's evidence was clear. She intends to set up her own business in due course. When that occurs is obviously uncertain and the profit outcome from that enterprise is completely unknown.
3. I accept that the plaintiff has an ongoing limitation relating to her thoracic spine which from time to time will impact on her employment. She does, on the other hand, appear very motivated and will no doubt overcome many of the hurdles which her physical limitations might present.
4. I am not prepared to approach the assessment of future economic loss on the basis advanced by counsel for the plaintiff. That is, by determining the loss based on the difference between the earnings with Active Ability and the earnings with Condobolin Hospital. The claim is calculated at the rate of $183.00 net per week for life. If that approach was adopted, there is a significant risk that the plaintiff would be overcompensated.
5. As stated earlier, I consider the only approach of assessment of future economic loss having regard to the considerations referred to s126 to be by way of buffer and I allow the sum of $75,000.00. The assumptions underlying this assessment are: 1. that the plaintiff has an ongoing limitation in her thoracic spine; 2. that such limitation will impact upon her capacity to work full time until retirement; 3. that the plaintiff will continue to work as an employee for the next 10 years; and 4. thereafter, the plaintiff will attempt to set up her own business.

Future Domestic Assistance

1. In reliance upon the report by Dr Porteous, the plaintiff claims the cost of domestic assistance for one hour per week at $45.00 per hour.
2. I accept the evidence from the plaintiff about her restrictions in performing certain household tasks. I note that currently some assistance is being provided gratuitously by the Hospital for which she works, as she is living in the nurses' quarters.
3. I do not consider that the claim for one hour a week to be unreasonable in light of the plaintiff's evidence, but I am not satisfied that it ought to be allowed for life. At some stage the plaintiff like most others would have required assistance of a domestic nature in any event. I am also not satisfied that it should commence immediately as currently the services are being provided at no expense to the plaintiff with no obligation for those services to be reimbursed.
4. The plaintiff's claim comes to $46,107.00. Reducing that sum for the considerations referred to, I allow the amount of $30,000.00 for future domestic assistance.

SUMMARY OF ASSESSMENT

1. Accordingly, I assess the plaintiff's damages as follows: Head of Damage Amount Past Treatment Expenses $3,380.00 Future Treatment Expenses $3,200.00 Past Economic Loss $20,000.00 Future Economic Loss $75,000.00 Future Domestic Assistance $30,000.00 Total $131,580.00

DISPOSITION

1. Applying a reduction of one third on account of contributory negligence to the damages as assessed gives rise to a judgment in favour of the plaintiff in the sum of $87,720.00.

ORDERS

1. Accordingly, I make the following orders: 1. judgment for the plaintiff in the sum of $87,720.00; 2. the defendant to pay the plaintiff's costs; 3. liberty to apply to vary the order in relation to costs, if necessary; 4. the exhibits to be returned.

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: 03 September 2018