Elkodat v The Nominal Defendant

Elkodat v The Nominal Defendant - [2020] NSWDC 14 - NSWDC 2019 case summary — Zoe

[3]

The pleadings and related documents

The plaintiff commenced the proceedings by way of a Statement of Claim filed on 28 September 2018. The plaintiff pleaded his case, in summary, in the Statement of Claim as follows: 1. At a time approximately between 7pm and 7:30pm on 3 August 2015, the plaintiff and his friend Mr Savvas were pedestrians crossing Ninth Avenue at Campsie in New South Wales on a marked pedestrian crossing adjacent to the intersection of Ninth Avenue with Second Avenue; 2. At all relevant times, the movement of traffic in all directions at the intersection of Ninth Avenue with Second Avenue was controlled by a roundabout; 3. Mr Savvas crossed the pedestrian crossing first, approximately two to three metres in front of the plaintiff, heading towards his motor vehicle parked on Ninth Avenue; 4. Approximately at the time when Mr Savvas reached the kerb on the north side of Ninth Avenue, and the plaintiff was still in the process of traversing the eastbound lane of Ninth Avenue, an unidentified motor vehicle, coming from the plaintiff's left hand side, struck the plaintiff, causing him: "To be thrown up onto the bonnet of the vehicle and into the windscreen of the motor vehicle and then onto the pedestrian crossing close to the north side of Ninth Avenue" (paragraph 5); 1. Following the collision, the driver of the vehicle that struck the plaintiff did not stop to render assistance to the plaintiff but drove off; 2. The plaintiff has made due enquiry and search to establish the identity of the motor vehicle but it cannot be established; 3. The collision was caused or contributed to by the failure of the driver of the unidentified motor vehicle which collided with the plaintiff to take reasonable precautions to avoid a foreseeable risk of injury to the plaintiff which was not insignificant; 4. As a result of the collision the plaintiff suffered injuries and disabilities; 5. The failure to take reasonable precautions by the driver of the unidentified vehicle caused the plaintiff's injuries.
In a Statement of Particulars filed on 28 September 2018, the injuries referred to include fractures of the sixth to ninth ribs on the left side, soft tissue injuries to the cervical spine, upper thoracic spine, lumbar spine and left shoulder and facial injuries with scarring under the chin. Ongoing disabilities relating to the plaintiff's injuries are particularised.
By a Defence filed on 29 October 2018, the defendant denied the allegations in the plaintiff's Statement of Claim and specifically denied the allegation that an unidentified vehicle collided with the plaintiff as alleged (paragraph 2).
In due course, counsel for the plaintiff did not rely on the complete factual version of the accident in the originally filed Statement of Claim (the plaintiff being thrown onto the bonnet of the car in the accident and hitting the windscreen). An amended version of the Statement of Claim was filed, with leave, on 5 December 2019 after the conclusion of the hearing and submissions. The Amended Statement of Claim amended paragraph 5 of the originally filed Statement of Claim, deleted the claim that the collision with the unidentified vehicle caused the plaintiff to "be thrown up onto the bonnet of the vehicle and into the windscreen of the vehicle" and added new particulars generally consistent with the plaintiff's oral evidence which will be set out below: see new paragraph 5 and the particulars to that paragraph. See also paragraphs 1-2 of the Amended Defence filed 18 December 2019.
At the commencement of the final hearing, counsel for the plaintiff raised concerns in relation to the Defence filed on 29 October 2018. Senior counsel for the defendant clarified the defendant's position by saying that the defendant was The Nominal Defendant, there was no identified defendant who could give evidence of the accident and the defendant was putting the plaintiff to proof in relation to all aspects of the plaintiff's claim including the accident.
The defendant later referred to and relied upon The Nominal Defendant v Cordin [2019] NSWCA 85. In that case The Nominal Defendant disputed liability, partly because it was alleged that the plaintiff had given an inconsistent version of the accident to a third party. Simpson AJA (with whom Leeming JA agreed) considered the position to be taken where The Nominal Defendant was a party at [101]-[111]. At [108] her Honour stated: "The common theme in these cases is that, where a party to proceedings is in a position of being forced to defend a claim while unable to call evidence to refute the claims against it, a careful approach to the evidence against it is to be taken before accepting the evidence of the plaintiff." At [105] Simpson AJA held that the authorities cited to her did not establish that The Nominal Defendant is in "any special position." Accordingly, in the present case a careful approach must be adopted in considering the evidence led on behalf of the plaintiff, particularly as to the circumstances of the accident.

[4]

Oral evidence from the plaintiff

The plaintiff gave evidence that he was born in October 1985 and was thus 34 years of age at the time of the final hearing. He lived at Greenacre in Sydney and was not employed.
He stated that he had completed Year 10 at high school. He then worked in kitchen installation for a few weeks before commencing a TAFE course in banking and finance which he did not complete as he did not like it.
The plaintiff stated that for two to three years from about 2002 to 2004 he worked for Sodexho at ANZ Stadium distributing goods to the various food and alcohol outlets. He said that there were about 50 outlets and he was one of 8 to 10 persons employed in that role. He said that Sodexho's contract for the work was cancelled and his position was terminated.
In 2006-2008 he worked at a caryard undertaking cleaning of cars and delivery of the cars. This job was for about one and a half years and his position was terminated when the caryard closed down.
The plaintiff stated that in 2010 he purchased a bait and tackle shop in Greenacre as he liked fishing. This shop was run by him for three years and involved working long hours. On occasions, his father helped him in the shop. The plaintiff said that the business eventually went downhill and he sold it at a loss.
The plaintiff gave evidence that he was injured in 2011 when he was elbowed in the chest playing soccer. He attended Canterbury Hospital and had a chest x-ray and was given painkillers but the consequences of the injury only lasted one or two weeks.
The plaintiff stated that in 2013 to 2015 he was unemployed and was feeling down and depressed because his business had gone downhill. He said in 2015 he began asking in his community for work and eventually located a position at Moeco Excavation & Demolition Pty Ltd. The plaintiff said he was placed on a one month trial to see if they wanted to employ him. He said he was involved in demolition work which included pulling out shop and restaurant fitouts. He said that he worked at the job prior to the accident for about a week to a week and a half and got paid for his work. The plaintiff tendered as Exhibit C, documents from Moeco Excavation & Demolition Pty Ltd supporting the plaintiff's claims of the job and the fact that he got paid for five days' work at $250 per day. The plaintiff said that his accident brought his employment at Moeco Excavation & Demolition Pty Ltd to an end.
The plaintiff described his physical condition prior to the accident on 3 August 2015 as "pretty good": T24.42. He said he had no problems with his arms, neck, back, ribs or with lifting. He said at Moeco he carried wheelbarrows of 20 to 30kg of sand as well as heavy sledgehammers.
The plaintiff gave evidence that on 3 August 2015 in the late afternoon he went with a friend, Mr George Savvas, in his car to look at a house for Mr Savvas' sister. The house was located on Ninth Avenue at Campsie.
The plaintiff gave evidence that Mr Savvas parked his car on the other side of the road to the house and they crossed at a pedestrian crossing to look at the house. They then left to go back across the crossing to the parked car. Mr Savvas was walking in front and the plaintiff was walking behind. The plaintiff said it was dark at the time and he could not recall the degree of artificial light over the crossing.
The plaintiff said that he was then struck by a car: T28.8. At the time this occurred, the plaintiff said that Mr Savvas had walked across the crossing. He said he did not see or hear the car and did not see any lights: T28.20-.27. He said he was "in shock" and had little recollection of the circumstances when he was struck.
The plaintiff recalled looking up and seeing Mr Savvas trying to help him to his feet and he said, "What happened?": T28.37. He said he was on the ground in the middle of the crossing at the time. The plaintiff gave evidence that Mr Savvas helped him to the car. At the time he had difficulty breathing and was breathing in little breaths. He said he had glass in his face and mouth and on his clothes and his back was hurting and he was in a lot of pain: T29.16. The plaintiff said that he had been struck on the left side under the arm.
The plaintiff stated that Mr Savvas did a U-turn in his vehicle and took him to Canterbury Hospital. He said it was only three or four minutes to the hospital and that he was dazed and dizzy at the time: T30.
The plaintiff said that at the time he was in a lot of pain in the area of his ribs, left shoulder and left shoulder blade. He said his chin was split open and there was a lot of blood.
The plaintiff gave evidence that Mr Savvas stopped his car in front of the Emergency Department doors at Canterbury Hospital and ran in and came out with a nurse. He said he was helped out of the car and taken inside and given painkillers: T31.25. The plaintiff said that he believed a doctor examined him "straightaway" and he believed his neck was checked and he was given morphine: T31.33-.48. He said the hospital staff were taking glass out of his mouth but there were no cuts in his mouth: T32.9; T32.31. He said his wound was cleaned out.
The plaintiff stated that when he was lying on the ground on the pedestrian crossing he had glass all over his body, in his clothes, on his face and in his mouth: T32.38-T33.11. He described the glass as "crumbly glass" (T33.1) and Mr Savvas had helped to try to get the glass out of his mouth (T33.26). He said that he could not recall whether he had a headache.
The plaintiff said that x-rays were taken and he was transferred to Royal Prince Alfred Hospital so that a plastic surgeon could suture his chin.
The plaintiff said that at this time he was in a lot of pain and had been using a morphine pump. He stated he was discharged from Royal Prince Alfred Hospital on 4 August 2015 and went straight home.
The plaintiff gave evidence that on 5 and 6 August 2015 he had difficulty getting off a reclining arm chair and the Endone he had been given caused him to be constipated. He said he went back to Canterbury Hospital on 7 August 2015 to be examined and at that time was still in a lot of pain particularly in the area of the ribs and the lower back and shoulder. He said he had little pain in the neck. He was given laxatives to assist with his taking of Endone and could not recall other medication. The plaintiff said that he still had difficulty breathing without his medicine and his problems in this area took a few months to settle: T37.46; T38.5.
The plaintiff stated that he then attended his general practitioner at his local medical practice and particularly saw Dr Smythe.
The plaintiff stated that by the end of September 2015 he was still sleeping in a recliner chair as he could not lie down backwards. By the end of the year he said that he was able to lie down but still had pain in the ribs. He said he was not driving and was being looked after by his family.
The plaintiff gave evidence that he went to see a rehabilitation provider organised by the insurer called Keystone in 2016 which assisted him particularly in building up his muscle strength. He also attended a fitness program but found that he could still not lift heavy loads and could not push or pull. The plaintiff said that he had sharp pain in the shoulder on exertion which was still the case now: T40.18.
The plaintiff was asked whether he intended to resume his old job as was indicated in the Keystone documents and he said that that was not the case.
The plaintiff was asked about his present position and he said it was "pretty good": T41.23. He said he still had pain in his ribs particularly if he slept on the left side. He said he could not lift more than 15kg and that if he lifted 15kg repetitively he believed he would have a problem with pain. He described reaching above shoulder height as the most difficult and painful: T42.1.
The plaintiff said he was no longer taking medication or having physiotherapy or other active treatment in relation to the pain from the accident: T42.41-T43.1.
The plaintiff was asked about other health conditions.
The plaintiff stated that in 2018 he fractured his foot and had three screws inserted into it with the ligament "coming off the bone": T43.8. He also said that he had thyroid problems in 2019 and his gallbladder removed in July 2019. The plaintiff said that following his gall bladder operation he could not lift anything and he required more treatment and for the area to heal. He said his thyroid condition also required more treatment and he may have to have it taken out. He said that presently his foot was "pretty good" and that he would like to get back to work. He said he proposed to do a course to become a chef and he intended commencing the course in 2020 if his thyroid condition and treatment went well.
The plaintiff was asked further questions in chief about when he attended Canterbury Hospital where he said he had glass in his mouth. He stated that at the hospital the staff tried to pick the glass out of his mouth and his chin. The plaintiff confirmed that he had glass on his clothing when he arrived at the hospital: T50.9.
In cross-examination, the plaintiff was asked a number of questions about his work history prior to the accident. He confirmed that he left school in 2001 and his first "proper job" was at ANZ Stadium working for Sodexho. However, the plaintiff said that he worked for a kitchen installer for a few weeks straight after school who undertook carpentry and cabinet making. He said he was paid for his work of about two weeks by that person. He said he stopped the work as he did not like the type of work. The plaintiff said he then worked at ANZ Stadium. The plaintiff was taken to the Statement of Particulars filed on 28 September 2018 which states that he worked at ANZ Stadium from 2004 to 2007 approximately. The plaintiff said that he left earlier than 2007 and, he believed, worked at ANZ Stadium between about 2003 and 2004 and left in 2005. He said that he worked at ANZ Stadium fulltime for about one and a half to two years: T52.41. This should be compared to his evidence in chief in which he said that he worked at ANZ Stadium for two to three years: T17.15. He confirmed that he ceased work as the contract of Sodexho had ceased and he said that he did not reapply to the new company with the contract as they did not want anyone from the old contract.
The plaintiff confirmed that he bought his bait and tackle shop which was located at Greenacre in 2010, having previously worked at a car sales outlet call Motor Gallery for about one and a half years. He said he started there in 2006 and washed and cleaned cars, delivered cars and picked them up. The plaintiff said that he finished working at Motor Gallery in about mid-2007.
The plaintiff accepted that he was unemployed and not studying for about two years after he pulled out of his TAFE course in 2001. He also accepted that he was unemployed for a period between working at the ANZ Stadium and the Motor Gallery. In addition, he agreed that he was unemployed for a period of at least two years between working at the Motor Gallery and owning his bait and tackle shop in 2010. The plaintiff said that in the period until he opened the bait and tackle shop, he was looking for work but did not know what he wanted to do.
The plaintiff accepted that business conditions were not profitable at the bait and tackle shop with it only doing particularly well in summer. The plaintiff's tax returns for the 2011-2013 financial years which became Exhibit F in the proceedings showed that the plaintiff had a taxable income in the 2011 year of $6,508, a taxable income in the 2012 financial year of $3,117 and a taxable income in the 2013 financial year of $5,280. Despite that, the plaintiff said that he worked very long hours at the shop particularly between Friday and Sunday when he never closed from 6am or even earlier on Friday to Sunday night.
The plaintiff confirmed that he did not work after the bait and tackle shop in 2013 until shortly before the accident on 3 August 2015. He said he was depressed during this period due to the lack of success of his shop: T62. He said he did not take medication for his depressed mood. The plaintiff however appeared to disagree that he was "not happy" at the time of the accident but could not say for how long his mood had changed: T64. The plaintiff said that he did not explore obtaining a retail job in this period even in the fishing industry, as it did not interest him although he was looking for work. He said he did not apply for any jobs in the retail industry at this time.
The plaintiff was asked about his position with Moeco Excavation & Demolition Pty Ltd which he had before the accident. The plaintiff agreed that he was employed on a trial basis, it was not a permanent job and that he had obtained it through word-of-mouth. He said he worked as a labourer and had been working for roughly four or five days before the accident: T65.28. He said he had not spoken to the owners of the business since his accident and had not applied for any other jobs at all: T65.35. The plaintiff agreed that he did not say he could not work and accepted that he could work in the retail industry but after the accident he did not feel well: T66.5. The plaintiff added that in the last two years he had had a number of health problems with his foot being broken, the rehabilitation for that, his thyroid problems and his gallbladder operation which meant that he could not carry anything: T66.4-.13.
The plaintiff was then cross-examined about the circumstances of the alleged accident on 3 August 2015. He confirmed that at the time of the accident he was with his friend Mr Savvas and the time he was injured was between 7pm and 7:30pm: T66.27. He agreed it was dark at the time: T66.30 (see Exhibit 2). After some extensive cross-examination of the time he had spent with Mr Savvas after parking in Ninth Avenue at Campsie, the plaintiff accepted that he was at Ninth Avenue for about 15 minutes before he and Mr Savvas left to walk to Mr Savvas' car parked on the other side of the road from the house they were looking at. The plaintiff gave evidence that Mr Savvas was walking ahead of him by about two-three metres and at the time he was hit (T71.28), Mr Savvas was walking off the crossing and he (the plaintiff) was in the middle of the crossing: T71.38. The plaintiff said he did not precisely know where Mr Savvas was at the time he was hit but he was looking ahead and at him. He did not recall whether Mr Savvas was turning right at the time he was hit. The plaintiff's estimation of Mr Savvas being anywhere from two to three metres ahead of him (T71.45) to even three to four metres ahead of him (T77.39-.47) at the time of the accident should be compared with his markings on the second photo (Elkodat 3) in Exhibit E and the dimensions noted on that photograph which suggest a distance between them of well less than three metres. The plaintiff could give no explanation in cross-examination as to why Mr Savvas was walking ahead of him.
The plaintiff was taken to his evidence in chief at T28.8 where he stated that he "got struck by a car". He confirmed his evidence that at no point before he was struck, did he see any motor vehicle: T28.21. He said he looked to his left and to his right when he first started to cross the crossing and did not see any cars at all but could not recall whether he continued to look to his left and right as he crossed or whether he looked straight ahead. In the end, he said he was looking straight ahead at Mr Savvas: T79.28. The plaintiff was then shown a number of photographs which showed that at night time, the crossing was brightly lit. He accepted that the area was lit including each side of the crossing. After extensive cross-examination, the plaintiff stated that he did not see any car, did not hear anything, did not see anything in his peripheral vision, did not see any lights of any approaching car and the basis on which he believed he was hit by a car was that he felt an impact: T83-85. The plaintiff said that he was hit by a car "or something big" (T86.8) but did not see a car. He denied making his evidence up but agreed that he had no idea that it was a car which hit him although he said something hit him. The plaintiff denied losing consciousness but said he was in shock at the time: T87.31.
Although the plaintiff initially said that he could not get out of bed for two to three weeks because of his injuries from the accident, he accepted that he saw a general practitioner eight days after the accident (Exhibit A page 129) at the medical centre and also reported the accident to police about 10 days after the accident.
The plaintiff was then cross-examined about statements which he had provided, particularly statements which he agreed he signed on 15 September 2015 and in June 2018. Extracts of the statements are set out in the report of Mr Jamieson which is part of Exhibit B.
The plaintiff relevantly stated as follows in the three statements: 1. Statement to police dated 15 August 2015 (Exhibit 3): "5. George had already got off the pedestrian crossing. Just as I had passed the middle of the crossing a car came from my left hand side. I did not see exactly where the car had come from. The car struck me and I think I fell to the ground. It felt like I couldn't breathe. I was dazed out and when I opened my eyes I saw George standing over the top of me. 6. I felt glass around me and had some glass in my mouth. I felt pain in my arm, my ribs, my shoulder and my back …"; 1. Statement signed on 15 September 2015 (Exhibit 4): "8. On or about 3 August 2015, at approximately 7pm in the evening, I was crossing Ninth Avenue, Campsie along the pedestrian crossing near the roundabout and the intersection with Second Avenue. I would indicate that it was quite dark at that time, I was wearing a dark top and pants and I would indicate that on either side of the street, there are big, established council trees. At the time, I was with my friend, George Savvas. I was crossing from the side where the butcher shop is located towards the other side of Ninth Avenue where George had parked his car. As I was crossing, I looked both ways and did not see any vehicles on either side of the street or any headlights flashing in the distance. As I was crossing the pedestrian crossing, I could see that George was a few metres ahead of me, which I would estimate to be two to three metres, and had completed the crossing and was at the concrete inclination towards the footpath when all of a sudden and without warning, I was struck by a vehicle from the left side. In the process of being struck by the vehicle, I was thrown up onto the bonnet, smashed the windscreen, and then thrown heavily to the road. I injured my head, neck, left shoulder, upper back and was bleeding heavily. I also received facial injuries and severe blows around the rib area. The vehicle at fault failed to stop and kept travelling along Ninth Avenue towards the direction of Campsie and the City. 9. At the time of the accident, I do not recall any headlights flashing in my direction nor did I hear the sound of a car braking. 10. I would estimate the point of impact to be in the middle of the lane in the direction of Campsie. 11. I was in total shock, I was bleeding under the chin, I had broken glass in my mouth, my ribs were severely hurting and I had difficulty breathing…"; 1. Statement dated 29 June 2018 (Exhibit 5): "10. Just before I walked onto the pedestrian crossing I looked to my left and right to see that the traffic was clear in both directions and I could see any approaching vehicles &/or vehicles with headlights on approaching in either direction (to the east or west). 11. As I crossed the pedestrian crossing from south to north I was walking at a normal pace and initially as I crossed on the pedestrian crossing I again looked to my left and right and again I did not see any vehicles approaching from my left or right and I did not see any vehicle headlights. 12. Moments later as I approached the other end of the pedestrian crossing it was approximately in the middle of the eastbound lane of Ninth Avenue, my friend George had walked off the crossing onto the northern side of Ninth Avenue heading towards the footpath turning to his right towards his parked car at which time he again was approximately 2 to 3 minutes [meters] ahead of me. 13. It was at this time that without any warning a vehicle travelling east on Ninth Avenue struck me on my left side. At the time the vehicle struck me I was looking ahead of me in the direction of north and I did not see the vehicle approaching or see any headlights coming towards me from my left. 14. When the eastbound vehicle struck me I initially felt the front of the vehicle impact my left upper torso after which I was thrown up onto the bonnet of the vehicle and the left side of my body and head smashed into the windscreen of the vehicle breaking the windscreen. 15. I was then propelled onto the road over the vehicle onto the road but I don't know which part of the vehicle I went over. The place where I landed was on the pedestrian crossing just near the north-eastern edge of the crossing."
After significant cross-examination, the plaintiff accepted that in the light of his oral evidence that he did not see a car, the second and third statements did not reflect what he had seen but what he assumed happened. The plaintiff again confirmed in cross-examination that he did not know what struck him. He said he believed he must have smashed the windscreen having regard to the glass that was on his face and body and in his mouth. The plaintiff agreed that he should have told his solicitor in relation to the second statement that he did not see what hit him and he assumed what he had said was what had occurred. The plaintiff confirmed that he believed that he had been hit by a vehicle. The plaintiff agreed that he willingly saw the insurance investigator in order to provide the third statement when asked. The plaintiff accepted that he did not tell the insurance investigator that what he said was what he thought happened rather than what he knew had happened. The plaintiff denied that he simply made up a story as he believed that was what really happened and where the glass came from and what caused his chin to be lacerated: T116.5. The plaintiff also denied that he deliberately changed his story in order to explain the inconsistencies in his statement: T116. He also denied that the contents of his 2015 and 2018 statements could not be true. He denied that he had made any deliberate decision to make up a story knowing that it was not true.
The plaintiff was then asked about the timing of the accident compared to the timing in the Canterbury Hospital records. He agreed that the accident occurred between 7pm and 7:35pm and he arrived at Canterbury Hospital within a maximum of five minutes of the accident with Mr Savvas. When it was put to him that the records showed that he did not arrive until after 9pm, about one and a half hours later, the plaintiff said he did not understand this. He said he was given painkillers soon after arrival as he could not breathe properly: T119.7. He said he could not explain the timing in the hospital records and assumed it was a mistake.
The plaintiff confirmed that he had spoken to his friend Mr Savvas who he says was present when the accident occurred, a couple of times about the accident but denied that he spoke to him before he made his statement.
The plaintiff also said that given his memory of events, he could not provide any explanation as to why there was glass in his mouth and over his clothes before he was taken to Canterbury Hospital on 3 August 2015: T123.20-.47; T131.10. His evidence in effect was that he assumed he was hit by a car while crossing the pedestrian crossing and that this caused the windscreen of the car to shatter.
The plaintiff was asked questions about his pain and restrictions. The plaintiff confirmed that he told the doctors at Canterbury Hospital that he had pain in the left ribs and the left shoulder. He agreed that he did not tell the people at Canterbury Hospital that he had neck pain. Although he said he had pain in the back of the shoulder, he could not recall telling Canterbury Hospital staff that he had a good range of movement with his neck. The plaintiff denied that he told Canterbury Hospital that he had any other facial injuries other than the cut under his chin (see Exhibit A page 39).
The plaintiff confirmed that he was transferred from Canterbury Hospital to Royal Prince Alfred Hospital by ambulance and was assessed there. He agreed that he told the staff at Royal Prince Alfred Hospital that in relation to his head he only had a cut to his chin. He agreed that he was not complaining at Royal Prince Alfred Hospital in relation to tenderness or pain to the neck or back but said he had tenderness to the left chest. He could not recall his teeth being checked (Exhibit A page 109).
The plaintiff was then cross-examined about the painkillers which he took after the accident. His evidence in summary was that he believed he was given Endone at one of the hospitals which he took but otherwise in the period from the accident to March 2018 he had only filled three prescriptions, only one of which was a painkiller. The plaintiff said that he took painkilling medicine after the accident for only a few months, particularly at night. The plaintiff also said that he took Nurofen.
The plaintiff was asked about his sporting activities and said that he played rugby league and soccer before the accident. He said that after the accident he never returned to playing for his teams. He denied ever playing rugby league after the accident. He was then asked about notes from Greenacre Medical Centre for 21 January 2018 in which he gave a history of pulling his hamstring while playing a game of rugby league. The plaintiff said that he once played a game of touch football with friends at a barbecue and he pulled his hamstring.
The plaintiff was asked questions about domestic assistance. He was unaware that his legal representatives were making a claim for money in relation to problems requiring domestic assistance. The plaintiff accepted that he could do maintenance work around the house including mowing the lawns and vacuuming and any day to day maintenance.
In relation to services provided by Keystone Professionals regarding rehabilitation, the plaintiff agreed that they had assessed him and that his physical strength had improved slightly following a gym based programme and the provision of assistance and information. He agreed he had supervised sessions at a gymnasium. He denied not attending the gym because of a lack of motivation, illness or religious beliefs. He said he was not religious.
The plaintiff disputed the suggestion that by July 2016 he could pull 22kg and push 20kg as well as being able to carry 20kg for 20 metres. However, he agreed that by mid-2016 he was mainly pain-free with occasional sharp pain under the shoulder with physical exertion: T148.17; Exhibit 1 page 2.
The plaintiff gave evidence that in July 2018 he broke his foot and this was followed by two operations, one to screw the cartilage back onto the bone and the second to take out the screws. He agreed that he still had limitations as he could not run much at all and his foot hurt in winter. The plaintiff also agreed that in July 2019 he had his gallbladder removed: T43.10. The plaintiff accepted that he had a number of limitations as a result. He could not carry, pull or push anything over 5kg. He also agreed that it had been suggested that he may have to have his thyroid out and symptoms had included no appetite, difficulty sleeping and anxiety with heart palpitations. He said he understood that if he had his thyroid out that he would be on medicine for all his life. Other than the hamstring problem in January 2018, the plaintiff denied other health problems.
The plaintiff said that after the accident and before July 2018 when he broke his foot, he did not look for any work although he accepted that prior to July 2018 he was capable of performing light duties and working in retail: T150.48. He denied being able to engage in physical work as he could not carry 20kg after the accident and now is only limited to 5kg.
The plaintiff agreed that over time his shoulder problem improved but he denied being able to go back to heavier work. The plaintiff agreed that as told to Dr Sekel, he had full range of movement in both arms, was able to lift both arms above his head and had a full range of movement in his neck. He agreed that prior to his foot injury in July 2018, he had told Dr Sekel that he was looking to get a truck licence and said that he was studying for it and believed he could drive trucks including heavy trucks. He agreed that he could not work as a truck driver now because of his foot and other injuries from July 2018. He also agreed that now he could not undertake any physically demanding work because of his foot, gallbladder and thyroid problems. He accepted that they were unrelated to the accident but believed his gallbladder restrictions may be lifted within a few months. The plaintiff did however say that he had restriction just below the left shoulder blade at the back but the pain was not always there.
The plaintiff was taken to paragraph 12 of his police statement which became Exhibit 3 in the proceedings which provides: "I don't know exactly how fast the car was travelling and I don't know if the car had its headlights on. If the car did have lights on I would have seen it."
The plaintiff was also taken to paragraph 5 of his police statement in which he stated that he did not see exactly where the car had come from which struck him. The plaintiff confirmed the contents of paragraphs 5 and 12 to the extent that he did not see exactly where the car had come from and if the car had its headlights on that he would have seen it. He also confirmed that he did not know how fast the car was travelling. The plaintiff was then taken to the photographs in Exhibit E and particularly the photograph marked "Elkodat 3". Importantly, he confirmed that the cross was where he believed he was when he was hit (T161.1-.7) and that the cross in a circle was where Mr Savvas was when he was struck.
The plaintiff was then asked about his statement to the insurance investigator dated 29 June 2018 which became Exhibit 5 in the proceedings. The plaintiff rejected that he had maintained a story he had no memory of and stated, similar to his earlier evidence, that this was what he assumed had happened to him. The plaintiff conceded that he should never have assumed anything and should have told the insurance investigator that. He confirmed that much of the statement in relation to him being struck by a car and smashing into the windscreen and breaking the windscreen was not his actual memory but an assumption on his part.
The plaintiff was then asked a number of questions about the presence of glass on his body: T165.21-T166.6. The plaintiff confirmed that after the accident he had glass in his mouth but could not recall having glass on his face other than on his chin. He said he had glass on the front of his chest and all over his jumper. He could not recall having glass on his sleeves, the back of his jumper or on his pants but did recall having some glass in his shoes. When asked whether he had glass around him when he was lying on the road, the plaintiff said that he could not recall as he was in pain. He confirmed that he did not hear any noise from the car prior to the accident. He could not recall hearing after he fell any noise or hearing glass smashing. He said he did not recall hearing glass falling to the ground: T166.39.
The plaintiff said he could not remember the lighting that was present on the night of the accident. He said that from the photos he had been shown the area appeared well lit. He also agreed that from the photographs there appeared to be a light on either side of the crossing and on the roundabout near the crossing.
The plaintiff was cross-examined about his comment in paragraph 8 of Exhibit 4 that "it was quite dark at that time". The plaintiff clarified that. He said that by this he meant that it was late and it was night time. He said he was not saying that the area was dark where the accident occurred. Similar comments were made by the plaintiff in relation to paragraph 27 of his third statement which became Exhibit 5 in the proceedings. The plaintiff said he had no actual recollection of the area being well lit on the night of the accident. He gave evidence that he could not recall why he said it was a "dark" area in paragraph 27 of his third statement. He denied making up the evidence.
The plaintiff was then asked about Dr Browne's second report dated 22 April 2019 in which he states: "Since his last review he has been living at his parents' home in a granny flat and has been assisting his brother in a car sales yard mainly carrying out some driving and delivery duties three days a week." (Exhibit A page 172).
The plaintiff confirmed that he had not been working at a caryard for his brother. He was taken to a similar statement in the report of Dr Sekel dated 31 August 2018 (Exhibit 1 page 30). The plaintiff confirmed that he had been working in a car sales yard cleaning cars but it was not his brother's caryard. He said this was in 2018 and involved him "helping out" for some days or a week. The plaintiff said he was washing cars as he was depressed staying at home. He stated that he ceased as he did not like the job. When asked why he did not like it by the court, the plaintiff simply said that he did not like the work. When asked whether he was physically able to do the work, the plaintiff said he was only cleaning a few cars a day but was physically able to do the work. A somewhat different statement is made in the penultimate paragraph of Dr Sekel's report where the plaintiff is recorded as saying that he ceased the work because of discomfort in the left hand (Exhibit 1 page 30).
In re-examination, the plaintiff gave evidence about his job at ANZ Stadium for Sodexho and confirmed that he worked there even when events did not occur, restocking the outlets. He said his hours were between 7:30am and 4:30pm and he sometimes worked six days a week. He said he would have remained working there if the work was available after Sodexho's contract was terminated.
In relation to his other work, the plaintiff said he had never considered working at a fishing tackle and other goods shops such as BCF as he said he was "over that industry" and did not think of it. He said that other than at his bait and tackle shop he had never done retail work and whilst he could use a cash register he did not know how to use computer software, for example in relation to stock.

[5]

Oral evidence of Mr George Savvas

Oral evidence was given by Mr George Savvas who was the friend of the plaintiff and who allegedly was present with him when the plaintiff was struck by a car on the pedestrian crossing in Ninth Avenue at Campsie.
Mr Savvas said that he was a self-employed electrician by trade and had known the plaintiff for 15 to 16 years.
Mr Savvas said that he was at the plaintiff's house when a decision was made by them to drive to Campsie to look at a house that his sister was interested in purchasing which was in Ninth Avenue. He said the house was up for auction and the purpose of the trip was to visually inspect the house from the street. Mr Savvas said that they arrived at Ninth Avenue between 7:20 and 7:30pm, parked across the road from the house, crossed the pedestrian crossing and looked at the house for about three to four minutes. Mr Savvas said that when they were returning to the car he was approximately two to three metres in front of the plaintiff and they were proceeding across the marked crossing. He said he had just completed crossing the pedestrian crossing and had arrived on the footpath and had turned right when he heard a screech, a yelp and a thud followed by what sounded like a moan: T228.37-T229.2. He said he turned to his left and looked around and saw the plaintiff Mr Elkodat on the pedestrian crossing between the two lanes in the road closer to the lane walking off the pedestrian crossing. He proceeded to mark on an aerial photograph where he saw the plaintiff on the road which became Exhibit G in the proceedings. Mr Savvas said that he could not recall whether the streetlights were on at the time.
He said he ran up to the plaintiff, helped him up, put his arm around his shoulder and assisted him to the passenger seat of his car and then travelled to Canterbury Hospital which was nearby.
Mr Savvas was asked whether he noted the source of the screech which he had heard and stated that while he was focusing on the plaintiff and was not really paying attention to the source of the screech, he looked up and saw two tail lights of a car driving away about 100 to 200 metres away: T230.24. He said he could not determine the type of vehicle and guessed that it was a sedan from the tail lights. He said he had no certainty as to this: T230.45.
Mr Savvas said that he noted that the plaintiff had blood on his chin and a piece of glass appeared to be hanging out of the chin. The plaintiff was complaining about having glass in his mouth and he believed he saw some glass on the plaintiff's tongue: T231.3. He also recalled the plaintiff saying that he could not breathe and he was breathing heavily. Mr Savvas said that he did a U-turn in his car and proceeded directly to Canterbury Hospital which was only several minutes away.
Mr Savvas gave evidence that when he arrived at Canterbury Hospital he ran into the Emergency Department and shouted out to a nurse who came out. The nurse said that she could not touch the plaintiff for legal reasons and asked why he had not been brought by an ambulance. He said that he had brought the plaintiff immediately and spoke to the plaintiff who got out of the car with an effort and walked in with the nurse to the Emergency Department. He said the plaintiff was taken into the triage area and he was not allowed to follow him and went back outside and stayed there for a while. He said he did not go back into the hospital and next saw the plaintiff, he believed, a few days later. He then said that he went with the plaintiff to Campsie police station to make the police statements. He confirmed that the contents of his statements were true and correct.
In cross-examination Mr Savvas confirmed to senior counsel for the defendant that he went with the plaintiff to look at the house in Ninth Avenue because his sister was interested in buying it and the inspection was for the purpose of looking at the condition of the house. He accepted that it would have been useful to look at the house in daytime. Mr Savvas then significantly gave evidence that it was daylight when he looked at the house. Later, he confirmed this again and said that the sun was still out (T242.40) which enabled him to inspect the house. Similar evidence was given on a number of occasions by Mr Savvas. Mr Savvas then said that although he spent with the plaintiff only five to 10 minutes looking at the house, by the time they had crossed the road the light had changed and it was dusk. He confirmed that in the period they had been looking at the house which he later stated could have been five to six minutes the light had "changed a lot" (T242.8) and it was starting to get darker. He confirmed this was between 7:20pm and 7:30pm: T243.30.
Mr Savvas was asked to assume that sunset was at 5:15pm on 3 August 2015 and his initial reaction was that it was not possible: T244.19. He again confirmed his evidence that there was enough daylight when he arrived at the house to see the house and inspect it. Mr Savvas confirmed that his police statement was the most accurate record as it was given shortly after the incident: T248.9.
After further cross-examination, Mr Savvas confirmed that when he looked at the house it was daylight with him being able to see the house with light from the sun. He could not understand how his evidence had gone "wrong" on the assumption that the sun had been fully set for an hour by 7:20pm.
Mr Savvas initially gave evidence that he had only given one statement to an insurance investigator. When he was presented with two statements dated 19 March 2016 and 4 July 2018, he confirmed his signatures on both documents and agreed that, contrary to his initial evidence, he had provided two statements to the insurance investigator.
After further cross-examination, Mr Savvas agreed that he must have got his times wrong and if it was dusk at the time of the accident and sunset was at about 5:17pm, that the accident "must have" happened between 5pm to 5:30pm: T253.12. When it was put to him that in that situation he must have arrived at Canterbury Hospital between 5:30pm and 5:45pm, Mr Savvas accepted that that could be the case: T255.17. When it was then put to him that the registration records at Canterbury Hospital showed that the plaintiff was registered after 9pm and thus it must have been that the plaintiff was not taken to hospital for three and a half to four hours after the accident, Mr Savvas said that that was "impossible": T255.39.
When given a further opportunity by the court to reconsider his evidence about the light at the time he inspected the house and at the time of the accident, Mr Savvas said he was "quite sure" that it was daylight when he looked at the house and the sun was out and it was dusk when he proceeded to cross the pedestrian crossing: T259.41.
On the fourth day of the final hearing, the plaintiff made an application under s 38 of the Evidence Act 1995 (NSW) for leave to cross-examine Mr Savvas in relation to his evidence concerning the light immediately before and at the time of and immediately after the accident as his evidence was unfavourable to the case of the plaintiff and was inconsistent with prior statements made by Mr Savvas. Those statements were tendered on the application and in due course became Exhibit H in the proceedings. Following a contested hearing, the application by the plaintiff was successful.
In order to understand Mr Savvas' evidence, including in relation to the light issue, it is necessary to set out parts of Mr Savvas' four statements. The relevant parts are as follows: 1. Paragraphs 5 to 7 of Mr Savvas' first statement dated 15 August 2015: "5. When we crossed the road there were no cars around. It was dark, the trees make the street appear very dark. There were no other cars driving around and I couldn't see any one walking around. I don't recall seeing a car when we crossed. By the time I got onto the footpath a car may have come. 6. I heard tyre screeches and a yell from Aiman. I turned around because of this and saw Aiman laying on the road on the crossing. I looked up and saw a white vehicle drive off along Ninth Ave, towards Beamish St. I didn't see a registration. The car did have lights on as it drove away. The car did not make any attempt to stop. By the time I saw him he was about 200 metres away. 7. I ran up to Aiman to make sure he was ok. I asked him if he was ok. There was broken glass around him and he asked me if he was bleeding badly. I could see a piece of glass in his chin"; 1. Paragraphs 7-9 of Mr Savvas' statement dated 21 December 2015: "7. We were in the area for about 5 minutes or so when Aiman and I decided to head back to my car that we were travelling in which I had parked on the other side of Ninth Street, opposite to the butcher shop and the house listed for sale. 8. I remember that it was quite dark at the time with trees lined along both sides of Ninth Avenue and I cannot remember if the street lights were on. 9. I remember I was walking ahead of Aiman when I crossed Ninth Avenue along the pedestrian crossing within close proximity to the roundabout and the intersection with Second Avenue. As I was crossing, I remember looking to my left and to my right, and I could not see any vehicles travelling along Ninth Avenue. I had crossed both lanes along the pedestrian crossing and got to the other side of the road near the footpath. I then heard what I believe to be a loud screeching sound of tyres, followed by a screaming sound. I then immediately turned around and the first thing that I saw was Aiman lying on the road in the middle of the lane, approximately 3 metres behind me. The second thing that I saw was a car driving into the distance driving along Ninth Avenue in the direction of Campsie. I could observe red lights on the back of the vehicle and at no time did the car stop. I would say that the car was white in colour but I am not certain. I immediately came to the assistance of Aiman, I helped him off the floor and walked him to my car, which was parked nearby." 1. Paragraphs 7-13 of Mr Savvas' statement dated 19 March 2016: 7. I cannot recall the date but on a day last year, maybe later in the year, I was present when Aiman Elkodat was struck by a vehicle. 8. I know that it was just on dark. I do not recall that the street lights were on. 9. Late that afternoon I had driven to 9th Avenue, Campsie NSW to look at a house for sale. Aiman had travelled with me just for something to do. 10. I parked on 9th Avenue and we crossed to the other side of the road to look at the house. It was an inspection from the outside. I recall that the sun was going down and we just had looked at the house before the sun went down. 11. Then we began to return to my car. We walked back to the pedestrian crossing which was only about 2 houses away from the house we were looking at. 12. I was walking in front of Aiman and thinking about getting back to the car and I crossed the crossing. I was about 3 steps off the crossing when I heard a tyre screech and I heard an "Er" vocal sound and a sound like glass breaking. 13. I turned around and Aiman was on the ground and was trying to get up. He was on one knee. His feet were pointing to the west towards the roundabout and his head was facing east. He was at the eastern edge of the pedestrian crossing and close to the middle double lines but on my side of the lines." 1. Paragraphs 8-15 of Mr Savvas' statement dated 4 July 2018: "8. As I have indicated in my earlier statement shortly before this accident occurred myself and my friend Aiman Elkodat were on the southern side of Ninth Avenue where we had been looking at a house for sale which my sister was interested in buying. We had arrived and parked my vehicle on the northern side of Ninth Avenua [sic] approximately 5 to 10 minutes beforehand. When we first arrived it was getting dark. 9. After looking at the house when it was about 7.00pm to 7.30pm and not long after the sun had gone down we then proceeded to walk across Ninth Avenue on the pedestrian crossing from south to north. 10. At this time I was walking ahead of Aiman approximately two to three metres in front of him, and so I walked upon the pedestrian crossing in front of Aiman by this distance of two to three metres. At this time it was quite dark, but I cannot recall if the street lights were on a or [sic] if any street lights were nearby and I recall it was a dark area from all the trees around. 11. Just before I walked on to the pedestrian crossing I looked to my left and right to see that the traffic was clear in both directions and I could not see any approaching vehicles and I walked across the pedestrian crossing to the northern side of Ninth Avenue. During the time I walked across the crossing I did not see any vehicles approaching from either direction. 12. When I crossed the pedestrian crossing and reached the northern side I walked onto the footpath and turned to my right to walk in an easterly direction toward my car which was a short distance ahead of me parked on the northern kerb. 13. I was about 3 steps off the pedestrian crossing when the eastbound vehicle struck Aiman Elkodat and at this time I was looking ahead of me in the direction of east. It was at this time that I heard tyres screeching and then a second or two later I heard a thud and vocal sound from Aiman and I heard the sound of glass breaking. 14. Initially I looked to my left however Aiman was not there and then I looked to my right to see him lying on the road and at that time he was positioned on the northern edge of the pedestrian crossing. 15. Straight away it was obvious that Aiman had been hit by a car and I saw the rear of a vehicle travelling east on Ninth Avenue away from the pedestrian crossing which I believe was the vehicle that must have collided with Aiman."
In the cross-examination with leave by counsel for the plaintiff, Mr Savvas was taken to various parts of the transcript in which it is recorded that he said that it was daylight when he and the plaintiff looked at the house in Ninth Avenue in Campsie: see T229.50; T235.45-T236.5; T238.19; T240.16; T242.40 ("the sun was still out"); T243.23. Mr Savvas said that he had no actual recollection of the sun being above the horizon when he was looking at the house on the day in question. When he was taken to relevant paragraphs relating to the light in the four statements referred to above, Mr Savvas altered his evidence having reviewed his statements, and stated that at the time it was dark and the visibility was low. He confirmed the evidence in paragraph 5 of his first statement and paragraph 8 of his second statement.
In relation to paragraphs 8 to 10 of his third statement, Mr Savvas said that the statement was wrong and the two earlier statements were correct and were more accurate than the third statement. Mr Savvas agreed that it was "quite dark" at the time: T277.30. Mr Savvas said that it was not daylight at the time they were looking at the house and when they were inspecting the house the sun had already gone down. He agreed again that it was "quite dark" when he was inspecting the house. He stated that at all relevant times it was dark or on dark.
Mr Savvas said that he got home the previous night after giving evidence and thought about his evidence in the light of a "big job" which he was completing at Bondi Junction at the time and realised that his evidence was wrong and a mistake: T277.46-T278.
The cross-examination of Mr Savvas by senior counsel for the defendant then continued. Despite being pressed on the level of the light issue for an extensive period, Mr Savvas stood by his evidence that it was dark when they were looking at the house but there was sufficient light for him to still see the house. Mr Savvas said that his previous evidence given on day three of the trial that it was daylight at the time he inspected the house was a mistake. Mr Savvas said he was trying to give accurate evidence at the time but had reflected on his evidence in the light of the time of the year and the work at a Bondi Junction site that he was completing at the time which necessitated a fairly long journey home at the end of the day.
Mr Savvas then gave evidence that the crossing was more lit up in what he assessed as the last two years than it previously had been. Initially, he claimed that at the time of the accident none of the floodlighting had been installed, although he was not 100% sure of that. He then stated that it was definitely darker at the time of the accident than it was now although he could see the house. He later claimed that this was because he had noticed as an electrician that the halogen lighting was replaced by much brighter LED lighting.
Mr Savvas also confirmed his evidence that he and the plaintiff arrived at Canterbury Hospital between 7pm and 7:30pm with the accident happening shortly before that. Mr Savvas said he had an actual recollection that at the time of the accident, there was no daylight and it was dark but he could not remember for how long it had been dark.
On being further pressed, he said it was "impossible" that there was no accident as claimed: T299.13.
In relation to the precise time of the accident, Mr Savvas said that although his experience was that Ninth Avenue sometimes was a busy road with a lot of traffic on it, he saw no car going in either direction on the night whilst he was crossing the road and only saw the tail lights of what he believed was the car that struck Mr Elkodat after the accident.
Mr Savvas was then asked about his evidence in chief that he was "pretty sure" that soon after the accident he looked up "at the car driving away" and that he saw "the red tail lights of a car driving away": T230.15 and T230.24. He confirmed that he saw the tail lights of a car driving away in the distance in the direction of the city. He also confirmed that he saw no headlights shining near the area where he was walking before the accident. When asked what he heard, Mr Savvas said that he heard only a screech: see also T228.46. He then noted where he saw the plaintiff on a copy of a photograph which became Exhibit G and said that the plaintiff was close to the middle of the road. See also the diagram which is annexed to Mr Savvas' third statement which he confirmed was his best recollection of the location of the plaintiff: see Exhibit H. Mr Savvas said that although he saw the two red tail lights of a vehicle in the distance, he did not see the front light beam of the car which he said was about 100 metres away: T317.43-T318.44. In his evidence in chief he said it "would have been between 100, 200 metres give or take": T230.28. When it was suggested to Mr Savvas that he did not see what hit the plaintiff he replied that it must have been a car although he did not see a car strike the plaintiff: T318.8.
Mr Savvas was then cross-examined in relation to the distance between the plaintiff and himself as he crossed the pedestrian crossing. He said that his evidence in chief that it was "maybe two to three metres, if that" (T228.35) was a "rough guesstimation": T323.28. He did not know whether in fact the distance was really four metres. He said he was not looking at the plaintiff at the time as he was ahead of him.
Mr Savvas was then asked about when he took the plaintiff to Canterbury Hospital. He said that he walked the plaintiff in to as far as the check-in/triage area. He said he initially called staff out but when the nurse said that she would not assist to get the plaintiff out of the car he assisted the plaintiff out and then walked him into the Emergency Department area. He said he did not recall saying anything in relation to the plaintiff when he walked him in. He stated that he did not stay with the plaintiff as the plaintiff was in the triage area and he was not part of the plaintiff's immediate family. To this extent, he said the wording in paragraph 22 of his statement dated 19 March 2016 was wrong. He said he waited for a while next to his car in the car park. When pressed, Mr Savvas said that it was "impossible" that they did not arrive at Canterbury Hospital until 9pm: T325.32.
In re-examination Mr Savvas said that he had noted a substantial difference to the lighting in the area of the crossing at the accident site as there had been a change from halogen to LED lighting along Ninth Avenue including at the accident site. He said he had been an electrician for 17 years and was familiar with the types of lights and the lighting differences. Mr Savvas said the lighting now in Ninth Avenue was much brighter.

[8]

Records from Canterbury Hospital

The plaintiff tendered a number of documents which became Exhibit A in the proceedings. Part of the tender included documents from Canterbury Hospital.
The first records relate to the admission of the plaintiff into the Canterbury Hospital Emergency Department on 3 August 2015 and his transfer very early the next morning to Royal Prince Alfred Hospital. The earliest time indicated in the records is 9.08pm. This should be compared to the plaintiff's oral evidence that he was taken by Mr Savvas to Canterbury Hospital very soon after the accident. As set out above, the Statement of Claim pleads that the accident occurred between 7:00pm and 7:30pm.
The first note in the triage comments (later established to be Ms Catalano's notes) was as follows: "walke din [sic] by friend states he was hit by a car while crossing the road car did not stop ? loc c/o pain left shoulder and left rib area walked in usteady on feet covered in glass has lac under chin able to recall most of incident no med hx" (Exhibit A page 29).
This comment was recorded by the triage nurse at 9:12pm after a triage time of 9.08pm: see also Exhibit A page 37. The clinical notes include the following: "deformity to Lt clavicle, 3cm deep laceration to chin, active bleeding, states has glass in mouth?" (Exhibit A page 38).
A similar history was provided to the medical practitioner who reviewed the plaintiff, Dr Smith. It is recorded that the plaintiff was hit on the left side and thrown to the road. The medical notes record that there was no tenderness in the cervical spine and the plaintiff had a good range of movement. It was also recorded that the clavicle was not tender but there was pain in the left upper arm and a restricted range of movement (Exhibit A page 39). It was noted that there was an injury to the plaintiff's left chest wall and it was questioned whether there were fractures (Exhibit A page 41). The plaintiff was given morphine and his mouth was flushed. Having regard to the plaintiff's injuries, particularly his chin laceration, the plaintiff was transferred to Royal Prince Alfred Hospital.
While the plaintiff was at Canterbury Hospital a number of x-rays were taken. There were normal reports in relation to x-rays of the plaintiff's chest, left humerus and left scapula, with no fractures shown.
An x-ray of the plaintiff's ribs showed a mildly displaced fracture of the left seventh rib posteriorly and also undisplaced fractures of the left sixth, eighth and ninth ribs.
The Canterbury Hospital discharge referral relating to the plaintiff refers to a fracture of his ribs. It is stated that there was no cervical spine pain. The symptoms referred to no head injury with the main complaint being of pain in the left ribs and the left arm and the laceration to the chin.
There is a further discharge referral report from Canterbury Hospital for 7 August 2015. It is noted that the plaintiff was discharged from Royal Prince Alfred Hospital the day after the accident and has been taking morphine. It is also stated that the plaintiff has been taking Nurofen and Paracetamol but stopped taking Endone due to constipation. The attendance was also to review the plaintiff's pain and the stitches under his chin. The Emergency Department discharge referral for 7 August 2015 refers to the plaintiff having chest pain secondary to multiple rib fractures following the motor vehicle accident (Exhibit A page 1).
The notes include further radiology reports. The plaintiff's left shoulder, chest, cervical spine and thoracic spine were x-rayed. No fractures were identified. No soft tissue swelling was seen at the cervical spine. Multiple left rib fractures were noted (Exhibit A page 3).

[10]

Campsie Medical and Dental Centre records

Part of Exhibit A were records from the Campsie Medical and Dental Centre which the plaintiff said he attended. These records include the following history: 1. 20 May 2002: "involved in a fight sore left side of neck and shoulder tender over left trapezius and deltoid"; 1. 4 May 2005: "punched a wall two days ago, pain and swelling left hand (left-handed), esp over lateral aspect"; 1. 2 April 2007: "Fell at soccer yesterday injured lower back R knee and nose … HX of lower back pain after MVA 1/12 ago Nose. Slight deviation to the L 2. Tender lower lumbar spines 3. R knee. Tender swelling over the patella"; 1. 20 February 2012: "Broke up with fiance 3/12 Feeling sad and stressed"; 1. 11 August 2015: Dr Lawendy: "c/o in a lot of pain [history of MVA noted and discharge letter noted] no further constipation"; 1. 14 September 2015: Dr Hong Gan: "MVA with multiple fracture ribs in August 2015 Was seen at TCH Now also c/o pain left shoulder, neck, upper back Tender neck, midthoracic region ROM neck moderate restriction Tender left shoulder, ROM sl restriction Tender L lower lateral chest" 1. 22 September 2015: Dr Cheung: "still has pain around the L shoulder MVA X ray report noted L shoulder: full ROM with some discomfort"; 1. 20 January 2016: Dr Susan Smythe: "Insurance Form was incomplete, inaccurate, needs another form completed. Has seen several different doctors about his injuries. Still has difficulty lifting > 30kg because of pain and weakness chest/left shoulder. Can't do his usual work, as it involved a lot of heavy lifting. … Needs more physiotherapy." 1. 6 May 2016: Dr Susan Smythe: "Pain in left shoulder and upper back is very slow to resolve. Went to gym this week for assessment, had trouble with 20 kg. Used to lift 50-60 kg prior to the accident Examination: mild tenderness over muscles and left anterior axillary line"; 1. 23 August 2016: Dr Hettlaratchi: "Was in a MVA one year ago Still has pain in the mid thoracic region, lateral to the spine. Pain increases if he uses the right hand to lift something. ? muscular. Trial Mobic."

[11]

Report of Dr Davis, specialist in occupational medicine

The plaintiff tendered a report of Dr John Davis, specialist in occupational medicine, dated 7 December 2017 following an assessment on the same day.
In the history, Dr Davis noted that the plaintiff has not undertaken any formal work since the date of the accident and that his last work was with Moeco Demolition & Excavation. The history of injury provided by the plaintiff included him being hit while he was crossing at a marked crossing and being "thrown up onto the bonnet, smashed the windscreen and then thrown heavily to the road. There was an associated period of loss of consciousness". This was contrary to the recollected detail which the plaintiff provided in his oral evidence. There was no mention of the plaintiff being thrown onto the bonnet and smashing the windscreen in his oral evidence or having a period of loss of consciousness. The plaintiff's injuries were noted. He is recorded as informing Dr Davis that he had not been able to find any suitable employment since the accident and had not been provided with any assistance by any rehabilitation provider with regard to job seeking.
The plaintiff reported continuing pain around the cervico-thoracic spinal region and pain beneath the left scapula. In cold weather the plaintiff said that his ribs hurt and that his symptoms were aggravated if he lies on his side for too long or engages in heavy lifting or using force or attempting to perform any work above shoulder height. Upon examination, Dr Davis noted the plaintiff's scar beneath his chin and there being cervical tenderness from C5-C7 centrally and on the left side and further tenderness at T2-T4. A full range of movement on the right side of the shoulder was noted and there were no abnormal neurological findings to the plaintiff's upper limb. The various radiological studies were noted.
Dr Davis diagnosed: 1. Mechanical trauma to the cervical region; 2. Mechanical trauma to the upper thoracic spine; 3. Functional impairment of the left upper limb due to referred pain into the left upper thoracic region and also over the mid to lower lateral ribs; 4. Facial scarring.
Dr Davis was of the view that the plaintiff's injuries were consistent with the stated mechanism of trauma in the accident and there was no evidence of any degree of embellishment or exaggeration during the assessment. Dr Davis' prognosis was for continuing variable pain which will depend upon the activities which the plaintiff does. Dr Davis expressed the opinion that the plaintiff had permanent restrictions in relation to a number of matters including lifting and carrying repetitively greater than 7kg and repetitive reaching or work above shoulder height. Dr Davis was of the view that the plaintiff was not capable of returning to work of a heavy or forceful nature and would thus not be able to return to his pre-injury duties. Retraining possibly in car sales was recommended.
In addition, further treatment recommendations were made with some recommendation for two hours of paid commercial domestic assistance per week on an ongoing basis.

[12]

Reports of Dr Browne, specialist rheumatologist

The plaintiff tendered two reports of Dr Christopher Browne, specialist rheumatologist.
In his first report dated 8 November 2016, Dr Browne noted that the plaintiff's cervical spine was mobile and pain free, there was a limited range of movement in the left shoulder, the right shoulder was unremarkable and there was a scar under the plaintiff's chin. It was noted that thoracic rotation to the left tended to increase the plaintiff's chest wall pain. Dr Browne diagnosed a laceration of the chin, multiple left rib fractures and thoracic spine pain and left shoulder pain syndrome.
Dr Browne was of the view that the pain and impairment related to the accident as described and the plaintiff was only fit for light duties and needed to be retrained for suitable work. He also recommended medical review and physiotherapy in the future. Domestic assistance was not required except for managing the garden or heavier household activities. Dr Browne's prognosis for recovery was favourable.
In his second report dated 22 April 2019, Dr Browne recorded the plaintiff stating that subsequent to the accident his main residual problem had been left sided chest wall pain. The plaintiff also reported left scapula pain when carrying loads and when running. He stated that he has neck and shoulder pain or restriction. The plaintiff noted that he was self-sufficient with cleaning and vacuuming.
On examination the plaintiff had a full range of movement in the cervical spine and some limitation at the left shoulder. His diagnosis was multiple left rib fractures following trauma with residual chest wall pain and chin laceration.
Dr Browne was of the view that the injuries and clinical sequelae were consistent with the accident history and that the plaintiff was limited in his work activities and "probably not suited to lifting and carrying of heavy loads or duties requiring him to bend and work in awkward positions in the long term." The plaintiff's future treatment needs were said to be minimal and he had made a reasonable recovery.

[13]

Plaintiff's liability evidence

The plaintiff tendered the following expert reports on liability: 1. a report of Mr John Jamieson, engineer and traffic accident expert, dated 4 April 2019; 2. a further report of Mr Jamieson dated 5 November 2019; and 3. a conclave report of Mr Jamieson and the expert retained on behalf of the defendant, Mr Michael Griffiths.
In the first report dated 4 April 2019, Mr Jamieson was asked to analyse the alleged accident from an engineering/scientific viewpoint on the assumption that statements made by the plaintiff and Mr Savvas about the circumstances of the accident were true and correct. He was also asked to examine the report of Mr Griffiths.
Mr Jamieson inspected the accident site at night time on 1 April 2019. He described the site and attached a number of photographs showing the assumed approach of the plaintiff and Mr Savvas. He noted that there was floodlighting above the pedestrian crossing which, from the photographs, he stated was almost certainly present at the time of the accident.
Mr Jamieson noted the possibilities that the unidentified vehicle was travelling either directly along Ninth Avenue or alternatively was initially travelling south on Second Avenue and then turned left into Ninth Avenue at Campsie. Mr Jamieson included with his report various photographs taken at night by him including of the pedestrian crossing (see page 14 of his report). He expressed the view that having regard to the closeness of the pedestrian crossing to the roundabout, the positioning of the crossing was "sub-optimal" (page 18 of his report). He stated that the floodlighting of the crossing appeared to be in accordance with the relevant Australian Standard and the roundabout and crossing were well lit (page 18 of his report).
Mr Jamieson then set out the three statements provided by the plaintiff. In the first statement the plaintiff stated: "The car struck me and I think I fell to the ground … I felt glass around me and some glass in my mouth. I felt pain in my arm, my ribs, my shoulder and my back."
In the second statement the plaintiff stated: "In the process of being struck by the vehicle, I was thrown up onto the bonnet, smashed the windscreen, then thrown heavily to the road. I injured my head, neck, left shoulder, upper back and was bleeding heavily. I also received facial injuries and severe blows around the rib area."
In the third statement the plaintiff said that he looked in both directions before crossing the road, did not see any vehicles or headlights approaching and then stated: "When the east bound vehicle struck me I initially felt the front of the vehicle impact my left upper torso after which was thrown up onto the bonnet of the vehicle and the left side of my body and head smashed into the windscreen of the vehicle breaking the windscreen."
A diagram prepared by the plaintiff of the area was included (page 23 of the report). A statement of Mr Savvas dated 15 August 2015 was extracted where he states that he could see broken glass around the plaintiff.
Mr Jamieson noted various inconsistencies in the statements.
Having regard to the rest position of the plaintiff being still within or near to the crossing, Mr Jamieson was of the view that there was not a frontal impact with the unidentified vehicle but rather that it was feasible the plaintiff was side-swiped by the left side of the vehicle moving at a significant rate (report pages 26, 27-28). Mr Jamieson was also of the view that from a traffic engineering viewpoint the more likely approach path of the unknown vehicle was from Second Avenue possibly with the vehicle's attention being drawn to the right while turning left into Ninth Avenue. Mr Jamieson put forward a scenario where the driver of the unknown vehicle was distracted by east bound vehicles on Ninth Avenue, was not conscious of the pedestrian crossing and was confronted with the pedestrian on the crossing with having insufficient time or distance to avoid the collision and a side-swipe impact occurred. Mr Jamieson was of the view that the scenario was a "feasible" set of circumstances from a traffic engineering and physics viewpoint.
Mr Jamieson then reviewed Mr Griffiths' report. In relation to the plaintiff's statement of glass present in his mouth, Mr Jamieson said Mr Griffiths correctly noted that windscreens are of a laminated design and would not shatter into pieces but the toughened side window glass was not laminated and had the possibility of shattering rather than the windscreen. He also noted the side windows might be vulnerable in a side-swiped impact. He noted that the rest position of the plaintiff was that of a side-swipe type and that Mr Griffiths had not considered the side-swipe alternative in his report (page 29 of the report).
Mr Jamieson said the alleged glass in the mouth of the plaintiff was difficult to explain in the context of a frontal collision. This was supported by the location of the plaintiff. Accordingly, Mr Jamieson was of the view that the likely impact scenario was that the unknown vehicle turned left from Second Avenue at an undesirably high speed, was suddenly confronted with the pedestrian on the crossing and impacted the pedestrian in a side-swipe configuration.
In the joint conclave report dated 11 October 2019 which was tendered by the plaintiff, the two experts set out the areas of agreement and disagreement.
The areas of agreement seemed to be: 1. The plaintiff could not have had impact with the vehicle's front windscreen and the totality of the circumstances were not consistent with the plaintiff having collided with the front of the unidentified car; 2. There would need to be a substantial impact of the plaintiff with the side window of the vehicle to cause it to shatter; 3. The plaintiff approached from the vehicle's right; 4. The plaintiff must have passed clear of the front of the vehicle without contact; 5. Mr Jamieson was of the view that the nature of the likely left turn of the vehicle did not exclude the possibility that it was moving from the left towards the right within the crossing thus creating a side-swipe collision.
Mr Griffiths was of the view that for the reasons set out in his reports there are a number of inconsistencies with the scenarios put forward by the plaintiff and the plaintiff's expert. In particular, Mr Griffiths was of the view that the evidence was not consistent with the plaintiff having impacted with the left side of the vehicle and the vehicle's left side window (Exhibit A page 73). Mr Jamieson said that whilst he agreed that the glass window on the side had some strength, it was possible that there may have been sufficient lateral head movement, for example a rebound, to shatter the side window. He remained of the view that while a frontal impact probably did not occur, a side-swipe impact was "quite plausible" and there was a possibility of sufficient lateral head movement during a side-swipe to smash the side window which could not be excluded (Exhibit A page 74).
In his report dated 5 November 2019, Mr Jamieson was asked to comment on the accuracy of the calculations and assumptions made by Mr Griffiths concerning a potential collision between the plaintiff's head and the side window and, in the alternative, to consider the alternative assumption that the collision did not involve a side swipe collision between the plaintiff's head and the front passenger side window of the unidentified vehicle, but instead involved a side swipe collision between the left side of the plaintiff's body and the passenger side wing mirror. To assist him, Mr Jamieson was provided with two photographs of the plaintiff to permit him to assess the height of the plaintiff compared to the likely height of a wing mirror on the passenger side of the motor vehicle.
In his report which became Exhibit J in the proceedings, Mr Jamieson initially considered a number of aspects including the amount of energy with a partial sideways force compared with "the expected amount of energy required for a tolerance to injury" by a collision between the plaintiff's head and the side passenger window. Mr Jamieson agreed that a side swipe collision would involve a component of vertical load being a partial sideways force but could not comment on the expected amount of energy required for a tolerance to injury as it concerned specialist biomechanics.
In relation to the alternative assumption, that there was not a side swipe collision between the plaintiff's head and the front passenger side window of the unidentified vehicle, but instead a side swipe collision between the left side of the plaintiff's body and the passenger side wing mirror causing it to strike the passenger side window and shatter it, Mr Jamieson said this possibility was "quite feasible" (page 9). First, he noted that the relevant design rule standards required the reflecting surface of an external mirror of a vehicle to be made of safety glass (page 5). Secondly, Mr Jamieson noted that the general dimensions of external mirrors are defined but shapes are not specified in the design rule. He stated that in practice, a typical rear view mirror on a normal sedan car/hatchback typically extends about 150mm from the widest part of the vehicle's body. Mr Jamieson also stated that the glass on a passenger side front window for a vehicle manufactured from 2010 to 2015 would have been safety glass. After reviewing the photographs of the plaintiff attached to the letter of instructions, Mr Jamieson was of the view that the plaintiff's lower part of his visible rib cage corresponded to a height of about 1.2 metres to 1.3 metres above the ground. He said this was consistent with the typical external mirror heights of light or heavy SUV vehicles. In particular, it corresponded to the height of a typical lighter SUV external mirror.
Mr Jamieson referred to certain tests conducted under the Australian design rule relating to the force required to shear a mirror on the side of a vehicle from its connection to the vehicle. In cross-examination, both experts accepted that the test appeared to be conducted in relation to a mirror assembly fixed to the vehicle and not a fold type external mirror. However, Mr Jamieson regarded the test as relevant particularly where the static weight used in the test was only 25kg and the force against the mirror if it had hit an adult human would be greater. This was on the assumption that it hit an adult male in a side swipe collision when the vehicle was travelling at say 20 to 30kph (report page 8 last paragraph - page 9 first paragraph). Mr Jamieson expressed the following final opinion: "Therefore, it was considered quite feasible in an impact scenario that the folded/deflected mirror could create a secondary impact between the mirror face/surround and the left front passenger safety glass window, with sufficient force to shatter it".
In cross-examination, Mr Griffiths, the expert retained on behalf of the defendant, expressed the opinion that this was unlikely but not impossible. He said he had not seen it occur in any matter he was asked to report on and also had not heard of it occurring although he had considered many occasions where a side rear vision mirror had struck a pedestrian. Mr Jamieson also said that he had not seen previously an accident where it was alleged this had occurred but he regarded it as "quite feasible" that it could have occurred having regard to the forces involved, particularly of an adult male being struck on the left hand side by a forward progressing vehicle's side mirror.

[14]

Oral evidence for the defendant

The defendant called to give evidence Ms Anita Catalano who was the triage nurse at Canterbury Hospital who dealt with the plaintiff following his registration on the evening of 3 August 2015, the date of the alleged accident. Ms Catalano gave evidence that she was a registered nurse working at Canterbury Hospital but was on maternity leave at the time of giving her evidence. She stated that she had worked at Canterbury Hospital in the Emergency Department for about five years as at the date of the accident. Ms Catalano agreed that she had looked at the Canterbury Hospital notes, accepted that she was involved in the treatment of the plaintiff and had a limited recollection of the plaintiff. Ms Catalano said that her recollection was limited to recalling that a patient was admitted with a laceration on his chin with active bleeding and there being substantial blood. She said she could not recall the plaintiff's face.
In her evidence in chief, Ms Catalano said that she was familiar with the emergency patient registration form which was at page 35 of Exhibit A. She said that this recorded the patient details, and the practice at Canterbury Hospital at the time was that the patient had to be registered before treatment was given. She stated that the practice had not changed at Canterbury Hospital. In substance, Ms Catalano said that when the patient arrived, either the patient or a family member gave the registration clerk details in relation to the patient which were registered on the system. As the triage nurse, Ms Catalano said that she was placed near the registration desk. Once this information was obtained, then a box was activated on her computer as the triage nurse and the patient was then seen. Ms Catalano said that a patient had to be registered before they could be treated. In particular, Ms Catalano said that the practice was not to triage a patient until they were registered so that their date of birth and name was part of the system. She later gave evidence that if a patient could not speak to provide the details, they were registered as "unknown unknown" and then when the name and details were provided, a new form was completed on the computer providing the additional new details but the old form with "unknown unknown" was retained on the filing system.
Ms Catalano was taken to Exhibit A page 35 which provided: "Registration Date: 03/08/2015 Registration Time: 21:08".
Ms Catalano said that this indicated that the patient arrived at 9:08pm as treatment is not given to a patient unless they are registered or unless first aid is required immediately or the patient is in need of CPR when assistance would be given at the same time as triaging the patient: T196.46-T197.22.
Ms Catalano agreed that from Exhibit A page 37, the Emergency Department clinical record, she was able to ascertain that she triaged the plaintiff as a Triage Category 2 which meant that he had to be seen by a doctor within 10 minutes. Ms Catalano stated that the triage comments were created by her at the time through information provided by the plaintiff or a friend if he was there which was entered by her into a portable computer on a stand. Ms Catalano said that the time on the document at Exhibit A page 37 immediately and automatically came onto her computer which allowed her to triage the patient. Ms Catalano confirmed that the information recorded under the heading "Triage Comment" on the document at Exhibit A page 37 (the Emergency Department clinical record) was entered by her in front of the patient at 9:08pm before treatment was provided. Ms Catalano stated that if she had provided earlier treatment to the patient prior to triage, her practice was to note that down in the records as it was important to record when and if treatment had started. She accepted that if the plaintiff had been given a gauze dressing to place on his chin that it could have been done by another nurse. Ms Catalano confirmed that treatment would not have been provided to the plaintiff prior to 9:08pm.
Ms Catalano agreed that the notes on page 38 of Exhibit A were notes created by her whilst the plaintiff was under her care in the Emergency Department. These notes in the first part of page 38 were her first initial assessment of the plaintiff after triage. The note "Neck cleared by Dr Smith" shows that the plaintiff had been reviewed by Dr Smith. When it was pointed out to Ms Catalano that the time of registration on the document at page 35 was 21:08, the triage time at page 37 was 21:08 and her notes were prepared at 21:08, Ms Catalano said that the notes were written after triage at page 38 and very shortly after or at 21:08 as the patient was categorised as a priority triage patient. She also confirmed that Dr Smith was seeing the plaintiff at the same time. The notes on page 38 were her initial nurses' assessment in order to arrive at a plan for treatment.
When it was put to Ms Catalano that the plaintiff claimed that he had arrived at 7:35pm at the latest at Canterbury Hospital and that he was given treatment for about an hour and a half before the entry of details and the registration, Ms Catalano said that that could not have occurred: T210.27. She said the practice was to write the words "in retrospect" and the time if treatment had been given earlier than the registration date and time: T210.28. She said this would occur if someone forgot to do the details or there was no time to do it, to show that the treatment had happened earlier. She confirmed that the treatment had been given at 9:08pm and that there were no earlier entries by her in relation to other treatment.
Ms Catalano was then subject to considerable cross-examination by counsel for the plaintiff in relation to the notes and the possibility that treatment had been given to the plaintiff prior to 9:08pm. She denied that any treatment had been given to the plaintiff prior to her treatment and stated that the first time she had seen the plaintiff was at 9:08pm. She said that she could reject the possibility of earlier treatment because the fact of earlier treatment had not been written down in the records. In relation to the notes at page 38 of Exhibit A, Ms Catalano gave evidence that the plaintiff was assessed by the whole Emergency Department team including Dr Smith. She described herself as the "scribe" and the person assessing the plaintiff. She explained the reference in the notes to Dr Smith clearing the neck as the need with a trauma always to clear the neck with a doctor. If the neck was cleared a collar would not be placed on the patient. Ms Catalano agreed that she was present when Dr Smith cleared the neck. She gave evidence that the time of 21:08 was arrived at through looking at a watch ("we always look at our clocks, our watches"): T215.16.
Ms Catalano was taken to page 39 of Exhibit A which she confirmed was in Dr Smith's writing. It was pointed out that there was no time on the notes. It was also put to Ms Catalano that if a patient arrived with significant problems and it was urgent, that the registration could be delayed. Ms Catalano said that depended on the situation. However, if this occurred the patient would be registered as "unknown unknown" and then the details when provided would later be updated but the original registration as "unknown unknown" would be retained on the system. Ms Catalano rejected the suggestion that there could have been a one and a half hour delay between initial treatment and registration and said that the system at Canterbury Hospital did not work that way: T216.26. When it was put to Ms Catalano that Dr Smith's entry "seen on arrival" could have been well before the patient was registered, Ms Catalano impliedly rejected that: T216.40. She gave evidence that a patient had to be triaged by a nurse before seeing a doctor as the doctor was not at the front of the Emergency Department area. While Ms Catalano accepted that medical notes as a matter of practice were recorded by doctors chronologically, she stated that doctors did not see patients before they were registered on the system and were not seen before the emergency nurse triaged the patient. She stated that having regard to the procedures in place, Dr Smith could not have seen the patient before 21:08 as she was at the front of the Emergency Department and Dr Smith was not. She confirmed that she had never seen in her time at the Canterbury Hospital Emergency Department a doctor seeing a patient before the patient was triaged by a nurse: T220.21; T222.10.
Ms Catalano was then taken to the entry on page 39 of Exhibit A by Dr Smith where he states: "No C. Spine tenderness Good ROM → cleared" This was well down Dr Smith's handwritten notes compared to her reference to the neck being cleared in the third line of her notes at Exhibit A page 38. It was put that this showed that some considerable review by Dr Smith must have occurred before 9:08pm. Ms Catalano said that that was not possible and a doctor could not assess and treat a patient prior to them being registered. This was in accordance with her experience at Canterbury Hospital over the nine years she had worked in the Emergency Department.
Ms Catalano was then taken to the reference in her triage notes on Exhibit A page 37 to "covered in glass" and her notes at Exhibit A page 37 "states has glass in mouth?". Ms Catalano agreed that the plaintiff had stated that he had glass in his mouth and from her triage notes she had observed that the plaintiff was covered in glass. She said she could not recall the type of glass and she would not have written the observation unless she had observed the plaintiff being covered in glass. She could not recall what steps were taken to assess the plaintiff's complaints of glass in his mouth as there were no notes on this matter. Ms Catalano said that she did not examine the plaintiff's chin other than to note there was a 3cm deep laceration to the chin. She said there was no investigation by her of whether there were foreign objects in the gash in the chin.
Ms Catalano impressed the court as a confident, careful and thorough witness who made every attempt to give complete and truthful evidence and made concessions where appropriate. I accept her evidence. Her evidence was attacked in the plaintiff's written submissions but even if there was some substance in the points made as to the difference between the order of her notes compared to the notes of Dr Smith, I do not regard the point as supporting a delay anywhere near that claimed by the plaintiff relating to his registration and triaging at the hospital. I found Ms Catalano's evidence on this point to be persuasive and likely having regard to the need for the hospital to document properly all treatment, including the time of treatment.

[16]

Reports of Dr Machart, Orthopaedic Surgeon

The defendant tendered four reports of Dr Frank Machart, Orthopaedic Surgeon.
In his first report dated 16 December 2016, following an examination on that day, Dr Machart set out a history in which the plaintiff was hit on the left while crossing the pedestrian crossing and he felt dazed but did not lose consciousness. He also states in his history that there has been an easing of the symptom severity but the symptoms of the plaintiff had not resolved completely. The plaintiff reported pain predominantly on the inner aspect of the scapular near the thoracic spine with discomfort along the left rib cage. The left shoulder pain was reported to have settled but the plaintiff stated that he was unable to return to his original job.
On examination, Dr Machart found no specific local tenderness in the left shoulder and a full range of movement. He found tenderness in the musculature on the inner aspect of the scapular and tenderness in the rib cage more prominent on the left. He reviewed the radiological investigations of the left shoulder and the thoracic spine.
Dr Machart diagnosed a soft tissue injury to the thoracic spine and left shoulder with the latter having now settled. He also said there were symptoms referred from the thoracic spine and rib injuries which caused ongoing disability. He noted the scar on the chin.
Dr Machart stated that the plaintiff's current disabilities were difficulties lifting anything heavier than 20kg and an inability to mow the lawn or attend to sport or the gym. He formed the view that there was consistency in the plaintiff's condition with the alleged injuries and the treatment he had received was reasonable. He stated that recovery from the date of examination should be time based and no further treatment was necessary. He also was of the view the plaintiff was unable to return to his pre-accident employment and it was not clear (with it possibly being several years) when he could return. He said the plaintiff was fit for alternative employment but not the physical aspects of demolition. He also reported on the plaintiff's difficulties with home duties although he did not diagnose the condition as severe enough to require domestic assistance.
In a report dated 10 August 2018, Dr Machart noted that nothing much had changed in the severity of the plaintiff's condition in the previous two years. The plaintiff reported an inability to return to his original job but Dr Machart said he could probably drive an excavator. He also referred to the plaintiff's injury to his foot in cleaning the pool and at the time of the examination the plaintiff was on crutches, was non-weight-bearing and was in a boot (Exhibit 1 page 14).
On examination, Dr Machart noted tenderness over the trapezius muscle and no spasm or muscle guarding in the thoracic spine. For the purposes of his review he had been provided with the Canterbury Hospital records. Having reviewed Dr Davis' report, he was of the opinion that Dr Davies' assessment of the injuries was divergent and apparently based on the plaintiff self-reporting. Dr Machart said that on assessment there was pain in the thoracic spine but not in the cervical or lumbar spine which was different to Dr Davis' assessment. There was also pain at the top of the trapezius muscle and that was not referred pain from the cervical spine. Dr Machart's diagnosis was soft tissue injuries to the thoracic spine and left shoulder and a scar on the chin.
Dr Machart altered some of his views in relation to the plaintiff's position from his earlier report. He said the disability was not evident as far as day-to-day activities were concerned in relation to housework. He also was of the view that the plaintiff's self-reported inability to return to his usual work in excavation and demolition, could not be confirmed on the basis of anything other than self-reporting. However, the plaintiff's foot injuries meant that there could not be a proper examination of the thoracic spine. Dr Machart said that he did not see substantial disability on examination.
He was of the view that the prognosis was good for recovery and that it would be surprising to see long term permanent disability without evidence of structural derangement. He was also of the view that the plaintiff was able to do all housework and his limitations were only for the first couple of months after the accident which was contrary to his view in his earlier report.
In a report dated 22 November 2018, Dr Machart was of the view, having read Dr Griffiths' report, that motor vehicle accidents do not always produce predictable outcomes and he did not find discrepancy between the plaintiff's description of the injury and the pathology which he obtained. Dr Machart also noted that the history that the plaintiff had provided to Dr Sekel did not conform with the history he had seen as the plaintiff had never complained of injury or pain in the neck.
Dr Machart was of the view that it was less likely there was a substantial injury to the spine or left shoulder. Accordingly, the plaintiff's condition had reasonably recovered earlier to the extent that he did not need assistance with housework and housework assistance was only needed for six weeks after the accident. The evidence did not support a substantial injury and it perhaps only required six weeks of recovery after the accident (Exhibit 1 page 21).
In a report dated 26 July 2019, following an examination on that date, Dr Machart noted that the plaintiff reported ongoing pain in the thoracic spine, rib cage and at the top of the left shoulder in his previous examination. The plaintiff stated that the severity of the symptoms stemming from the accident had now plateaued and he referred to other medical problems relating to the plaintiff's foot, thyroid and gallbladder in 2018-2019 (Exhibit 1 page 23). The plaintiff also gave evidence of this in his evidence in chief. The plaintiff complained of intermittent pain to the left rib cage evident when lifting anything heavy and reported a limitation of 20kg. He said the severity of his symptoms had not changed and he could perform housework without limitation.
On examination, Dr Machart found no spasm, deformity or muscle guarding of the spine and no local tenderness of the shoulders.
Dr Machart said his diagnosis had not changed being a soft tissue injury to the left shoulder, thoracic spine and a fracture of the seventh rib on the left side. He said that the impact of the motor vehicle accident had now largely resolved and long term symptoms or disability were not expected.
He reviewed the reports of Dr Browne.
He was of the view that the plaintiff's present complaints and disabilities were reasonable in part and said that a healed rib fracture four years after an injury may be expected to cause some minor symptoms but not disability. He found no evidence as to why the plaintiff is not fit for preinjury employment and objective definition of injury did not suggest disability. He saw no incapacity but that minor symptoms may still be evident. He thought a good recovery was expected and domestic assistance was not required after the first six weeks.

[17]

Report of Dr Sekel, occupational medicine specialist

The defendant tendered a report of Dr Richard Sekel, occupational medicine specialist dated 31 August 2018 after an examination on that date.
Dr Sekel set out the plaintiff's pre-accident injuries including a displaced skull fracture at age 10, a motor vehicle accident in 2007 causing lower back pain and various other medical conditions referred to in the general practitioner notes (Exhibit 1 pages 27-29). He also referred to the plaintiff having fractured his right foot in July 2018 and stated: "He sustained fractures and disruption of some ligaments in the foot. Dr Oliver Enke, Orthopaedic Surgeon, performed an open reduction and internal fixation, inserting three screws, which will be removed on 10/10/19 (as a day only procedure). He is still wearing a moon boot, walking with two crutches and he is not yet permitted to weight bear on that foot" (Exhibit 1 page 29).
Dr Sekel then set out the plaintiff's employment history (aspects of which were disputed by the plaintiff in his evidence in chief) and social history. He then set out the plaintiff's account of the accident in which the plaintiff stated that he could not recall being struck by the car, flying through the air or hitting a windscreen or any other part of the car or falling onto the road (Exhibit 1 page 31). The plaintiff could not explain the apparent time of the accident at about 7pm on 3 August 2015 compared to his arrival at Canterbury Hospital with the first records noting a time of 9.08pm (Exhibit 1 page 32). He did recall having tiny pieces of shattered glass in his mouth and small pieces of glass in his clothes (Exhibit 1 page 33).
Dr Sekel set out the plaintiff's injuries in the accident being fractured ribs, left shoulder pain and the cut under the plaintiff's jaw as well as left scapula pain. In relation to neck or back pain, the plaintiff confirmed he had never had pain locally in the neck itself or in his lower back or legs (Exhibit 1 page 34). The plaintiff's history of treatment was set out.
The plaintiff's complaints were detailed as an ache in the left side of the chest wall, an ache over the left scapula when he lies on his back for a long time while sleeping or when carrying heavy items. The plaintiff said his continuous pain in the left shoulder had completely resolved after one or two months and only occurs locally in the shoulder if he carries a heavy weight (Exhibit 1 page 36). After looking at the various radiological investigations, Dr Sekel noted that all movements performed in the physical examination were active, although the plaintiff was wearing a moon boot on his right leg as a result of his foot accident and was using crutches. In relation to the cervical spine, Dr Sekel noted no muscle spasm or guarding or tenderness. In relation to the shoulders, Dr Sekel noted a full range of motion of each shoulder in all dimensions without crepitus or spasm and no tenderness. There was similarly a full range of pain free movement of all joints of both upper limbs as well as no tenderness to compression of the chest wall.
Dr Sekel expressed the opinion that all genuine injuries caused by the accident would have completely resolved within a maximum of three months after 3 August 2015 and that there were no ongoing injuries which required the plaintiff only to seek light duties in regard to the accident. He was of the view that the present and future earning capacity of the plaintiff had not been impaired by the accident. He was also of the view that after the initial six weeks the plaintiff would have been able to undertake household activities without the need for significant ongoing domestic assistance (Exhibit 1 pages 39-40). Significantly, Dr Sekel annexed to his report photographs of the plaintiff showing he was able to perform apparently unrestricted movements (Exhibit 1 pages 45-47).

[18]

Liability reports

As stated above, the defendant relied on a number of reports of Mr Michael Griffiths, a bio-medical and mechanical engineer. I have already referred to Mr Jamieson's comments on Mr Griffith's first report and the views expressed in the conclave report dated 11 October 2019.
In his first report dated 5 October 2018, Mr Griffiths noted that he had postgraduate qualifications in biomedical engineering and specialised in the area of impact injury biomechanics. He also had engineering qualifications and substantial experience.
Mr Griffiths had been provided with extensive documentation including a number of statements made by the plaintiff and Mr Savvas. Mr Griffiths said that he visited the site and sets out the dimensions of the crossing and areas of visibility (Exhibit 1 page 62). He describes the distance of travel of a detectable motor vehicle from the midpoint on the pedestrian crossing as being 25m for direct vision of headlights and not less than 40m of detectable travel of a vehicle's approaching headlights.
Mr Griffiths included in his report a number of photographs of the accident area (Exhibit 1 pages 63-68). He also sets out in his discussion of the facts in the matter, that headlights would have been discernible for some distance from the pedestrian crossing (Exhibit 1 page 69).
Mr Griffiths went through the various statements of the plaintiff, his reported injuries and in particular referred to the plaintiff saying that he had broken glass in his mouth. He commented that it was difficult to envisage how particles of shattered glass could have got inside the plaintiff's shoes (Exhibit 1 page 71).
In his analysis, Mr Griffiths disputes one version of the plaintiff of the accident that he was hit by the front of the vehicle, hit the vehicle's windscreen and was then thrown forward and landed with a heavy impact on the road surface. Mr Griffiths was of the view that if this happened it would have been difficult for the vehicle to have avoided running over him (Exhibit 1 pages 79-80). It was also noted that the vehicle was described as a sedan and the initial impact would have been with the lower limbs not the upper torso as that was above bonnet height (Exhibit 1 page 81).
Mr Griffiths examined the alleged impact and the location where the plaintiff landed and said it was suggestive of a moderate impact speed of a vehicle but not consistent with a frontal impact and a throw of the plaintiff. He expressed the view that the plaintiff not seeing the approaching car was not consistent with the physical evidence of the road geometry, available sightlines and likely realistic speeds of travel of the car and the plaintiff (Exhibit 1 page 89).
Mr Griffiths emphasises that vehicle windscreens are laminated and would not shatter on impact as the plaintiff described. He did accept that it was possible for the side window of a vehicle to shatter into a large number of small pieces as it was only toughened glass (Exhibit 1 page 90)
In his conclusions, Mr Griffiths expressed the view that the physical evidence was not consistent or compatible with the circumstances described by the plaintiff, particularly the small particles of glass described and the plaintiff's description of being hit by the front of the car. He also pointed to inconsistencies in the various statements. The view was finally expressed by Mr Griffiths that it was most improbable that an event fitting the various descriptions supplied by Mr Elkodat and Mr Savvas occurred (Exhibit 1 page 94).
In a supplementary report dated 10 October 2019, Mr Griffiths considered Mr Jamieson's alternative scenario that the plaintiff had a side-swipe engagement with the plaintiff not impacting with the vehicle's windscreen but impacting with the side window causing it to shatter with the result that the plaintiff had particles of glass inside his mouth.
After considering the standards that applied to a vehicle's side window strength, the force required to break the window and the weight of an adult human head impacting the glass, Mr Griffiths expressed the opinion that it was unlikely. The reasons given were: 1. The impact velocity of the head with the window would need to be not less than 8 to 10kph which was a jogging pace (Exhibit 1 page 99). That was the sideways or lateral component of velocity required to shatter the window; 2. The plaintiff's open mouth would need to be in close proximity to the toughened glass when it shattered for fragments to get inside the plaintiff's mouth. That would require the impact to be the pedestrian's face; 3. A glancing impact of the pedestrian's anatomy with the side of the car would not apply the necessary sideways force; 4. If it did occur, it would be expected to result in some bruising and consequent swelling of the face together with grazing and abrasion type injuries. Nasal and other fine facial bones would also be prone to fracture; 5. Whilst the medical records described a deep laceration, it appeared to be the only injury to the face/head of the plaintiff described. There was no recording of any facial bruising, swelling, abrasions or grazing or any record of facial fractures.
Mr Griffiths was of the view that the physical evidence of a sole laceration under the chin was not consistent with the pattern of injury that would be expected if the pedestrian had hit into the side of the vehicle at a speed of not less than 8 to 10kph (Exhibit 1 page 101).
In his third report dated 18 November 2019, Mr Griffiths responded to the report of Mr Jamieson dated 5 November 2019. First, he agreed that the reflective glass component of an exterior rear view mirror is required to be made of safety glass (page 2). He also agreed that the height of an exterior rear view mirror above the ground would respond approximately to the height of the lower rib cage of the plaintiff, Mr Elkodat, involved in the incident.
In order for Mr Jamieson to reach his conclusion that the side mirror may have been forced by hitting the plaintiff into striking into the side passenger window and shattering it, Mr Griffiths said that this conclusion would need to be supported by a field/empirical experiment, mathematical modelling in relation to the forces generated or "first-hand real life observation". Mr Griffiths said that he was not aware of any empirical or analytical studies on the suggested "phenomena" and although attending crashes involving pedestrian impacts with vehicles since 1976, he has no recollection of ever having seen a side window shattered as a result of secondary contact from impact with external rear view mirrors: T12.10 (25/11/19). In cross-examination, Mr Griffiths said that although he considered this unlikely he did not consider it impossible: T15.41-.48 (25/11/19).
In addition, Mr Griffiths expressed the opinion that Mr Jamieson's hypothesis of an impact with the left wing mirror of the vehicle did not include any explanation as to how the plaintiff came to be on the left side of the vehicle. Mr Griffiths was of the view that the typical distance of the rear view mirror from the front corner of a vehicle is about 1.5 metres. Having regard to a brisk or moderate walking pace, he was of the view that the plaintiff would have cleared the left rear view mirror. Further, Mr Griffiths stated that he could not envisage any mechanism by which glass particles shattered at lower rib cage height could find their way into the mouth of a standing pedestrian. This was in addition to his view that Mr Jamieson did not offer any tests, analysis or experience to support the proposition that secondary impact from an exterior rear view mirror could generate sufficient force to break the side passenger window of a motor vehicle.

[20]

The Expert Conclave oral evidence

The two experts, Mr Griffiths and Mr Jamieson, gave conclave oral evidence in the proceedings. Both experts struck me as careful and thorough experts.
It was clear from the examination of the experts by counsel for the parties, that there had been some movement in the various theories of the accident which the experts had considered. Initially, the experts had considered, based on some of the plaintiff's written statements, that he was hit by the front of the unidentified vehicle, landed on the bonnet and smashed the windscreen of the vehicle. Both experts appeared to have discounted that possibility because of the shatterproof nature of windscreens on cars. In due course, the plaintiff gave evidence that he had assumed that this had occurred without knowing that it had actually occurred. The experts then moved to consider the possibility that the plaintiff's head had struck the passenger side window of the car causing the window to shatter. This also had been discounted by Mr Griffiths because of the force required and the absence of injuries to the plaintiff's face and head consistent with such force.
The third possibility which the experts then considered was the scenario of the side mirror of the unidentified vehicle hitting the plaintiff and then being forced back and striking the left passenger side window, causing it to shatter.
Mr Jamieson said that the proposed scenario of the plaintiff hitting the side mirror as the vehicle went forward forcing the mirror casing back and striking and shattering the passenger side window of the unidentified vehicle, which he had described as being "quite feasible" in his 5 November 2019 report, was clearly a plausible explanation: T6.2; T6.14 (25/11/19). He saw it as being plausible having regard to his belief that the unidentified vehicle had turned left from Second Avenue in Campsie into Ninth Avenue rather than going directly through the roundabout on Ninth Avenue. He thought the latter was less likely because the plaintiff would probably have been in the sight of the driver of the vehicle whereas with a left turn the plaintiff was less than obvious: T6.25. This may have involved the driver of the unidentified vehicle pausing for a moment to look to his or her right at the roundabout as part of recommended practice. Mr Jamieson was of the view that the force following the side mirror striking an adult was significantly greater than the 25kg static load on the test referred to on pages 8 and 28 of his report: T9.44. Mr Jamieson said that there was no design requirement to restrict the folding back mechanism of a side mirror or to prevent the mechanism striking against the passenger side window. He was of the view that there was sufficient force to swing the side mirror back hard with the potential to create a load sufficient shatter the passenger side window: T10.46. In order to be more precise, he said he would need to know the type of vehicle and the type of mirror: T11.7.
Mr Griffiths agreed that he did not say in his report that it was not feasible for such a scenario to occur as he had not undertaken a testing regime in a laboratory to see if it was feasible: T11.26. He said he had never in his experience since 1976 encountered a side mirror shattering a passenger side window after striking a pedestrian: T11.40. While pedestrians were frequently hit by side mirrors, he had never seen a side mirror being forced back and striking a passenger side window with sufficient strength to shatter it having regard to its purpose to prevent passengers being thrown out of the cabin of the vehicle in an accident: T11.49-T12. Mr Griffiths said that he had seen nothing to establish that the scenario proposed by Mr Jamieson was feasible and he had not undertaken a calculation to see if the potential force was sufficient: T13.1. He added that it was difficult to undertake having regard to the unknown nature of the vehicle and the mirror: T13.35. Mr Griffiths agreed that some vehicles such as vans had a distance from the front corner to the side mirror of less than 1.5 metres. He agreed that some vans had blunt noses: T14.44.
In the end, Mr Griffiths said that the side swipe scenario was unlikely but not impossible: T15.39-.48.
Mr Griffiths said whether the scenario was possible depended on where the pedestrian was when he was hit: T18.38-T19.10.
The experts were asked a number of questions by senior counsel for the defendant. Mr Jamieson conceded that he did not consider the possibility of the plaintiff striking a side mirror and the passenger window shattering in his first report: T22.45. He agreed that in his first report he did not explain the presence of glass or that it could have come from a side mirror or a passenger side window: T23-T24. Mr Jamieson said he addressed the questions posed to him to answer: T25.3. He agreed that he should, in retrospect, have put in his reports the possibility of the glass being sourced from the side mirror or the side window: T25.31. He denied that what he had put forward was simply a speculative theory: T26.37. He accepted that more weight was given to physical evidence and the only physical evidence present in the current case was the report of the glass as being in the plaintiff's mouth and on his clothes: T27.8. Mr Jamieson said he did not initially consider where the glass had come from because of the suggestion that the collision was initially from a frontal impact: T27.39. He accepted that it was unlikely that the glass reported came from the windscreen and therefore he was asked to consider an alternate explanation for the glass: T28.29.
Mr Jamieson was then asked a number of questions having regard to the plaintiff's evidence as to his stated location when he was struck and where he ended up after the collision as shown in Exhibit E. He accepted that with the force of the impact the plaintiff would be expected to land further to the north and/or the east of the point of impact: see T30.46. He accepted that based on the plaintiff's indication of where he first felt the impact as marked in Exhibit E, the unidentified vehicle would have to have been travelling on the wrong side of the road and have mounted the raised median area just before the crossing: T32.48-T33.44. Mr Jamieson said that his theory was that the vehicle turned left and was still turning when it reached the crossing with the plaintiff immediately on the vehicle's left at the time shortly before impact: T34.20. Mr Jamieson disagreed that if the plaintiff had cleared the front of the vehicle that he would have been unlikely to have struck the side mirror in the case of the vehicle turning left from the roundabout: T35.12. He said it was more likely that there was a left turn as it was relevant to whether the plaintiff saw the vehicle or the unidentified driver saw the plaintiff: T36.24; T37.1. Mr Jamieson said he would expect the plaintiff could hear the vehicle immediately before impact (T37.11-.26) and probably he would expect that the plaintiff could see the vehicle in his peripheral vision (T37.31). He also agreed that it would involve the vehicle mounting the raised median and if the vehicle mounted the raised median he would expect it to create further noise: T39.31; T40.1-.16.
Mr Jamieson conceded that in his review of accidents he had never seen a collision with a pedestrian striking a side mirror causing the mirror to shatter the side passenger window: T43.46. Mr Jamieson described his theory of the accident as "only a hypothesis": T42.47.
Mr Jamieson agreed that from his investigations the crossing and the sides of the crossing were well lit including likely at the time of the accident: T45.27. He said there may be a difference in the plaintiff's peripheral vision in seeing the vehicle if the headlights were not on and if the car had emerged from Second Avenue: T45.47; T46.46. However, he agreed that he would still expect the plaintiff to see the vehicle out of his peripheral vision moments before the impact: T46.6-.16.
He agreed that there was no explanation given the collision dynamic as to how the glass allegedly came into the mouth of the plaintiff as he was walking away from the vehicle with his back to the side of the vehicle: T48.48. Mr Jamieson said that the glass from the mirror could have become airborne from the collision and he could not discount the fact that the glass in the mouth came as a possibility from flying glass: T49.8. He did not accept that this was unlikely: T49.31.
Mr Griffiths accepted that glass shattering was unlikely to arrive in the plaintiff's mouth following the collision. Mr Jamieson agreed with this in relation to the glass from the side window: T51.33.
Both experts were asked by the court whether if the passenger side window was partially open that would alter the position. Mr Griffiths said that if the window was partially open the passenger side window would be less braced. Mr Jamieson agreed and said that the window would be less braced if it was partially down and therefore more vulnerable: T53.33; T83.26.
Mr Jamieson agreed that his conclusion in the final paragraph of his 5 November 2019 report was made without reference to a particular type of mirror including what the casing was made of and whether it was motorised or not: T62.46. He said that his reasoning did not apply to a fully fixed mirror but applied to a mirror able to be bent back or folded either mechanically or manually: T63.26. Essentially this occurred where the mirror was bent back beyond its design deflection point: T63.50. Mr Jamieson agreed that most side mirrors when struck broke off from their mounting on the vehicle and some could be seen hanging by the electrical wires from the vehicle. Mr Jamieson maintained his view in his report that the plaintiff hitting the side mirror and forcing it into the passenger front side window shattering it was quite feasible, although he had never seen such an accident occur in practice: T64.15; T65.41; T66.15.
Mr Jamieson confirmed that his expertise did not allow him to comment in relation to the injury pattern and the plaintiff's injuries as that involved biomechanics: T69.28. Mr Griffiths confirmed that he had biomechanical expertise and he was of the view that the plaintiff's injuries were not consistent with the proposed scenario put forward by Mr Jamieson: T70.7.
Mr Jamieson agreed that if the side mirror and the passenger side window were shattered that this would create some noise which he described as "loud and violent": T70.31; T70.36. He did not accept that the plaintiff would necessarily have heard the noise and said that there were often accounts at accidents of plaintiffs being disoriented and inconsistent but a bystander would hear the noise particularly if they were standing close by. He would have expected Mr Savvas to have heard it: T71.15-T72.6.
While Mr Jamieson accepted that the test referred to in his last report seemed to involve a fixed mirror (T73.12), he said he believed the test was relevant as he assumed that the test involved a mirror placed in its housing: T74.9. Mr Jamieson said the test referred to in his report was relevant to the amount of force required to break the mirror housing: T74.45; T77.45.
He accepted that in the accident put forward by the plaintiff, the plaintiff would have hit the back of the mirror housing and accordingly Mr Jamieson said that the test referred to was relevant but not directly applicable: T79.10.
Mr Griffiths agreed that the tests referred to by Mr Jamieson appeared to be a test for a fixed mirror.
In re-examination, Mr Jamieson agreed that his theory of the mirror assembly being forced back with sufficient force beyond its limit to hit the passenger side window glass shattering it was probably an "unusual" accident (T81.23) but he did not see anything from an engineering perspective which would prevent such an accident occurring with the side window being shattered. Mr Griffiths said that he had not seen or heard of any case of a side mirror being forced from its housing and hitting a passenger side window shattering it: T82.36.
Mr Griffiths agreed that if the glass had been broken in the vehicle it would have travelled forward before it had fallen: T85.41-T86.1. Mr Griffiths said he could not see how the glass could arrive in the plaintiff's mouth but noted that the glass was reported to be on his jumper which he agreed was close to his mouth: T86.27.

[21]

Submissions

The parties prepared detailed written submissions and also made detailed oral submissions. Both written submissions contained extensive reference to the evidence. I will not attempt to provide a detailed summary in relation to all of the submissions made. I will, however, give a broad outline of the submissions.
The plaintiff's submissions, in general summary, were as follows: 1. While it is accepted on behalf of the plaintiff that the accident did not happen precisely in the way that the plaintiff alleged in the original Statement of Claim, a collision did happen at the place and time stated by the plaintiff at Ninth Avenue Campsie on 3 August 2015; 2. The inconsistencies between the plaintiff's oral evidence and the plaintiff's statement evidence were not determinative. In substance, the plaintiff's oral evidence was similar to his first statement to the police; 3. The defendant did not put an alternative case explaining what had occurred to the plaintiff. On any view, on 3 August 2015 the plaintiff sustained serious injuries which led him to attend Canterbury Hospital. No explanation was given or put forward by the defendant for such injuries; 4. The incontrovertible fact is that the plaintiff suffered significant physical injuries at some time on the early evening of 3 August 2015 which were consistent with a sizeable blunt trauma to the lower rib cage on his left side. While the defendant is not obliged to put forward any kind of reasonably plausible alternative explanation, if one existed the defendant would undoubtedly have raised it with the plaintiff and it did not. A collision with a motor vehicle is hard to exclude as the most likely cause of the injuries; 5. There are two hypothetical versions of what occurred. The plaintiff's is much more likely to be correct. The plaintiff's statements can be explained as the plaintiff reconstructing in his own mind what he thought was the most likely mechanism of the accident. His evidence explaining his prior inconsistent statements should be accepted. 6. A mechanism of the collision which would plausibly account for his injuries and the presence of glass being a side swipe accident was open on the evidence despite it being an admittedly uncommon occurrence; 7. There is nothing to suggest an alternative cause of the plaintiff's injuries. However, it is accepted that the onus rests on the plaintiff to establish his case on the balance of probabilities; 8. The defendant did not successfully undermine the central component of the plaintiff's case that his injuries were caused by an unidentified vehicle which collided with him on the pedestrian crossing on Ninth Avenue; 9. Whilst there was inconsistent evidence in relation to a number of other matters, the central core of the plaintiff's case should be accepted; 10. The inconsistent evidence as to the lighting at the time is not relevant to the events which occurred. The same is applicable to the events occurring after the injuries were suffered by the plaintiff; 11. The court should find that the plaintiff received treatment for a considerable period prior to the notes commencing for Canterbury Hospital. This is established by the inconsistent order of the medical treatment in the notes of Dr Smith compared to those of Ms Catalano. However, arrival at a later time than that given in the evidence by the plaintiff and Mr Savvas is not in itself inconsistent with a collision with a motor vehicle occurring on the pedestrian cross on Ninth Avenue at some time on the evening of 3 August 2015; 12. The plaintiff's evidence was doubtful in relation to where he was hit and where he landed after being struck; 13. While it is accepted that the expert evidence excludes the plaintiff being thrown up onto the bonnet of the car and smashing the windscreen, it is understandable that the plaintiff believed this could have happened. He still believes that: paragraph 3.4; 14. It is unrealistic to treat the plaintiff's indication of where he was when he was hit and when he landed more than four years after the accident as portraying a precise position; 15. Mr Savvas' explanation for why he was honestly mistaken in his recollection of various aspects of the account of the accident was believable and should be accepted: paragraphs 3.5-3.7; 16. Taken as a whole, the evidence about the lighting really did not change or clarify the central circumstances of the accident; 17. The time of the plaintiff's arrival at Canterbury Hospital, even if it is accepted as being at 9:08pm, is not direct evidence that the alleged collision with an unidentified motor vehicle either did not happen at all or even that it happened at about 90 minutes later than alleged. Even on Ms Catalano's evidence, she did not recall all details of what she did with the plaintiff: paragraph 4.8; 18. The plaintiff's hypothesis for the accident is open on the expert evidence. The real question for which assistance was sought from the experts, was whether or not a reasonable explanation for the accident suffered by the plaintiff is a side swipe mechanism whereby the plaintiff was hit by the passenger side wing mirror of the vehicle, and the wing mirror was caused to fold violently back on itself and break the front passenger side window which it is accepted was made of safety glass and was liable to shatter; 19. The limitation in asking the experts for their opinion about matters was the absence of reliable input data as to the side mirror and the type of vehicle and where the mirror was positioned relative to the front of the vehicle. At the end of the day, the reports of the experts provide some additional background that is helpful, but they cannot be in any way decisive for either party because of the lack of relevant information. Mr Griffiths conceded that the plaintiff's version was not impossible and Mr Jamieson said it was "quite feasible". The expert evidence does not prevent a finding in the plaintiff's favour; 20. As to damages, the major head of damages is past economic loss which should be based on three years' salary working at Moeco. In relation to future economic loss, an amount should be awarded for two years at 50% of the net wage at Moeco with a discount for vicissitudes. A loss of future superannuation benefits should also be allowed; 21. Whilst past domestic assistance is not claimed, an amount should be allowed for the future for partial incapacity for heavier domestic activities, relying on the opinion of Dr Davis.
The defendant submitted, in general summary, as follows: 1. The Statement of Claim in its unamended form at the end of the trial was inconsistent with the plaintiff's factual version put forward in his oral evidence; 2. The plaintiff's oral evidence was inconsistent with a number of statements which he had provided including a statement to his solicitors soon after the alleged accident; 3. There were significant inconsistencies in relation to the evidence of Mr Savvas as to the lighting shortly before and at the time of the accident. Mr Savvas later changed his oral evidence on the second day of his evidence and his explanation for the change should not be accepted; 4. The evidence of the plaintiff and Mr Savvas of the time that the accident occurred should be rejected as it is inconsistent with the evidence of Ms Catalano and the records at Canterbury Hospital which should be preferred. Contrary to the evidence of the plaintiff and Mr Savvas, they must have arrived at the hospital very shortly before 9:08pm. Ms Catalano's evidence that a patient would not be treated by a doctor until they were registered should be accepted; 5. The court should find that the plaintiff has not established his case on the balance of probabilities. Whilst the Nominal Defendant is not in any special position, as it does not know what occurred in the accident, it is in a position of disadvantage and the evidence against it needs to be evaluated with care: The Nominal Defendant v Cordin [2019] NSWCA 85 at [105]; 6. The inconsistencies in the evidence of the plaintiff and Mr Savvas, their prior inconsistent statements and the erroneous evidence as to the time they arrived at Canterbury Hospital, raise significant doubts as to the plaintiff's case which lead to the conclusion that the case should not be accepted; 7. It is important that apparently the first time the plaintiff resiled from the statements provided to his solicitor and the insurer's investigator, was at the time of the hearing, following the service of the report of Mr Griffiths, the liability expert. By this stage it was clear that the accident could not have occurred in the manner in which the plaintiff claimed in two signed statements. The plaintiff's explanation for his statements should not be accepted; 8. The inability of the plaintiff to explain the temporal gap between the time of the accident according to his evidence and his arrival at Canterbury Hospital is significant in considering whether the plaintiff was struck by a motor vehicle at the location alleged and at the time alleged; 9. The scene of the accident described by the plaintiff and Mr Savvas in relation to the lighting was not the crossing at Ninth Avenue; 10. The mechanism put forward by the plaintiff in the Statement of Claim and as described in two previous statements of the accident, is agreed by the two experts as a mechanism which could not have occurred; 11. Mr Griffiths should be preferred in relation to his expert opinion. First, Mr Griffiths gave the opinion that the injuries which occurred to the plaintiff were inconsistent with the side swipe hypothesis. Mr Griffiths indicated that one would expect abrasions and bruising due to the impact between the mirror and the plaintiff's body and no such injuries were recorded as to the plaintiff in any of the detailed examinations undertaken by treating clinicians at the two hospitals or in any subsequent medical examinations. Mr Jamieson did not have expertise in relation to biomechanical matters; 12. Although Mr Jamieson stated that an accident in accordance with the side swipe theory knocking the side mirror into the passenger side window and shattering it was "quite feasible", it is inconsistent with the evidence of the plaintiff and Mr Savvas. Mr Jamieson's evidence is inconsistent with the point of impact according to the plaintiff and the place where he landed according to the plaintiff and Mr Savvas. An accident could not have occurred having regard to the plaintiff's evidence at his claimed point of impact; 13. Mr Jamieson's theory involved a vehicle turning left from Second Avenue at a roundabout immediately west of the crossing. However, this theory would require, in a left side swipe, the offending vehicle to have mounted the raised concrete median immediately west of the crossing and driven down the incorrect side of the road having regard to where the plaintiff claimed he was struck. Mr Jamieson said this would have caused some noise which neither the plaintiff nor Mr Savvas said they heard; 14. The plaintiff insisted that at no time did he hear or see the offending vehicle. Mr Jamieson conceded that on his side swipe theory it was likely that the plaintiff would have seen the approaching vehicle in his peripheral vision and heard it shortly before impact; 15. In relation to the explanation for the presence of glass being the side mirror and passenger window shattering, Mr Jamieson gave evidence that the sound of the smashing window would have been "loud and violent". There is no evidence from the plaintiff or Mr Savvas of hearing such a noise. Even assuming the possibility that the plaintiff was in shock and perhaps did not hear the noise, there is no explanation for the failure of Mr Savvas to hear any such noise which he must have heard if the hypothesis is correct. Mr Savvas' evidence was very limited as to what he heard and certainly he did not hear anything "loud and violent"; 16. The evidence of Mr Griffiths should thus be accepted and Mr Jamieson's explanation for the presence of glass is largely speculative and a phenomenon which neither he nor Mr Griffiths had experienced in their years as traffic engineer and accident experts. Mr Jamieson described his side swipe theory smashing the passenger side window in the accident as an unusual event; 17. Accordingly, the court should not be satisfied on the balance of probabilities that an accident occurred at the time and/or the place alleged by the plaintiff. Mr Jamieson's analysis in relation to the alleged accident is speculative only; 18. In addition, if the Jamieson analysis is accepted, the driver of the vehicle did not have sufficient time or distance to avoid a collision. Accordingly, the plaintiff has failed to establish breach of duty of care in accordance with the test in s 5B of the Civil Liability Act.

[22]

Credit

The defendant made a number of submissions in relation to the credit and reliability of the plaintiff and Mr Savvas. As set out above, the ultimate submission made was that, particularly in the light of the expert evidence and the evidence of Ms Catalano, the court could not be satisfied that the plaintiff has established his case in relation to the alleged accident on the balance of probabilities.
I observed the plaintiff and Mr Savvas give evidence over an extensive period of time. They were closely cross-examined by senior counsel for the defendant in relation to a large number of matters including discrepancies in their oral evidence compared to their statements, the nature of the light at the time of the accident, their locations at the time of the alleged collision and thereafter, the time of the accident and the time they attended Canterbury Hospital.
In determining its factual findings in a particular matter, a court is not bound to accept any of the evidence which a particular witness attests to and similarly may accept part only of a particular witness's evidence: Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [118]-[123]; Danckert v Tonkin [2015] NSWSC 1570 at [152]. Accordingly, it does not follow from the fact that part of the evidence of a witness is rejected that other aspects must also be rejected and that is so even if it be found that the witness was lying: Sangha v Baxter [2009] NSWCA 78 at [155]-[156]; Croucher v Cachia [2016] NSWCA 132 at [129].
Both the plaintiff and Mr Savvas made numerous concessions in giving their oral evidence albeit in some cases after considerable cross-examination. The plaintiff, in particular, made numerous concessions in relation to his work history, his current medical problems not associated with the accident, his ability to do domestic work and his recovery from his injuries. Overall, the plaintiff impressed me as a fairly unsophisticated and uncomplicated person.
Mr Savvas eventually conceded that he must have been wrong in relation to the lighting at the time he inspected the house near the crossing immediately before the accident. He appeared to be particularly indignant at the suggestion that he was lying in relation to the accident. His explanations for his error and altered evidence on the lighting issue may be found at T277.46; T288.35-T289.5; and T291.29. I regarded them as plausible explanations, contrary to the defendant's submissions.
The real issue in the proceedings is whether the inconsistencies in the plaintiff's evidence and the evidence of Mr Savvas when considered with the expert liability evidence and the evidence of Ms Catalano (as supported by the Canterbury Hospital records) are such that the court would not be satisfied on the balance of probabilities that an accident occurred at the place and time and in the manner substantially in accordance with the evidence of the plaintiff and Mr Savvas. In considering this issue the court must take into account all the evidence including the evidence of Mr Savvas and the plaintiff and the apparent logic of events.
In my view, I must exercise some degree of caution in considering and accepting the evidence of the plaintiff and Mr Savvas. This is for the following reasons: 1. As to the plaintiff, the Statement of Claim filed on 28 September 2018 contained a version of the accident in paragraph 5 relating to him being thrown on the bonnet of the unidentified vehicle and into the windscreen which the plaintiff later stated in evidence that he did not know happened but only assumed happened. The experts confirmed that a frontal impact in the accident with the result pleaded in the initial Statement of Claim was unlikely particularly if it is suggested that the windscreen shattered. An Amended Statement of Claim was later filed removing this allegation; 2. The plaintiff later gave evidence inconsistent with a number of his signed statements; 3. In his first statement (Exhibit 3), the plaintiff says he drove his car to Ninth Avenue. In his oral evidence he says he went in Mr Savvas' car: T25.38. The plaintiff refers to a car coming from his left hand side but in his oral evidence the plaintiff confirmed he did not see or hear a car: T28. The plaintiff says the accident occurred at about 7.30pm: paragraph 3; 4. In his second statement (Exhibit 4), the plaintiff says the accident occurred at about 7.00pm (not 7.30pm): paragraph 8. He says Mr Savvas had parked his (Mr Savvas' car). The plaintiff states he was thrown onto the bonnet of the car and smashed the windscreen: paragraph 9. He later said he could not confirm this. His location of the impact is somewhat different to his marking in Exhibit E: see paragraph 10; 5. In his third statement (Exhibit 5), the plaintiff says he was struck at approximately 7.00pm contrary to his first statement. The allegation of smashing the windscreen is repeated: paragraph 14. He again claims he was struck by a vehicle. The plaintiff states that when he was admitted to hospital he was given some pain killer tablets: paragraph 23. This is inconsistent with the Canterbury Hospital medical records: Exhibit A page 52 ("IV") cf T31.25; T31.42; T209.21; 6. The plaintiff's estimate of the time of the accident and the time of arrival at Canterbury Hospital is inconsistent with the evidence of Ms Catalano and the hospital records. The same may be said of Mr Savvas' evidence; 7. Mr Savvas gave inconsistent evidence about the lighting at the scene of the accident in his oral evidence and changed his evidence; 8. The accident occurred over 4 years ago.
The versions of the plaintiff and Mr Savvas have to be considered in the light of all the evidence including the expert evidence and independent evidence such as the Canterbury Hospital records.
Overall, it is necessary in my view to test the plaintiff's version of the accident in the light of any independent evidence and the expert evidence. I found nothing in particular in the demeanour of the plaintiff or Mr Savvas to indicate that they did not consider their evidence to be truthful. However, as the majority of the High Court stated in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31]: "[31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical."
In Briginshaw v Briginshaw (1938) 60 CLR 336 Dixon J stated at 361, in relation to the civil standard of proof, the following: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality." See also Watson v Foxman (1995) 49 NSWLR 315 at 319 and Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 at [107]. Accordingly, I consider whether I am actually persuaded of the versions of the accident put forward by the plaintiff and Mr Savvas. See also s 140 of the Evidence Act 1995 (NSW).

[23]

Factual findings as to the accident and other matters

After considering the submissions, and the evidence before the court, I make the following findings of fact: 1. The plaintiff was born in October 1985 making him 34 years of age at the time of the final hearing. He lives in a granny flat attached to or in the back of his parents' house. 2. The plaintiff completed only Year 10 at high school. His work history has been poor since he completed school. After leaving school, he worked for a carpenter/kitchen installer for a few weeks but left as he did not like the work. He subsequently commenced a TAFE course in banking and finance but did not complete it. For an uncertain period between about 2003 and 2005, the plaintiff worked as a distribution officer at ANZ Stadium for Sodexho which was a full-time job but he was terminated when the contract was given to another company. He worked for about one and a half years between around 2006 and 2008 in a caryard and he was terminated as the caryard closed down: T18. That employment was essentially unskilled work involving delivery of vehicles and cleaning cars. He owned and ran a bait and tackle shop for three years from 2010 to 2013 but ended up selling the business as it was not particularly profitable and thus not successful. The plaintiff's tax returns for this period which became Exhibit F in the proceedings show a very modest income after expenses. As no tax return was produced for the year ending 30 June 2014, it does not appear that the plaintiff's business continued past 30 June 2013. 3. The plaintiff said that he was very "down" after the business was not successful due to him using up a significant portion of his savings. He described himself as being in a "not happy" state at that time: T64.6; T62.1-.34. The plaintiff's evidence establishes that he was unemployed for extensive periods including in 2002, 2005, 2009-10, and from 2013 to 2015. The plaintiff is unskilled although he has some experience working in caryards and in retail. 4. I accept that on 28 July 2015 the plaintiff commenced work as a labourer for Moeco Excavation & Demolition Pty Ltd on a trial basis. I accept that the plaintiff's wages for 37.5 hours of work per week were at a rate of $40.53 per hour and resulted in a gross payment of $1,520 with $270 deducted for tax making a net payment of $1,250. The plaintiff only worked for one week at this trial job before the accident: Exhibit C. 5. The plaintiff's description of his work at Moeco Excavation & Demolition Pty Ltd suggests that it was heavy labouring work. I accept that evidence. There is no evidence that the plaintiff had engaged in this type of heavy work prior to this time. There was no evidence as to how heavy the work was for Sodexho at ANZ Stadium. The plaintiff, as I have indicated, had a history of ceasing work or studies which he did not like or which he found did not suit him. There is also a possibility that the proprietors of Moeco may not have found the plaintiff to be an acceptable employee for longer employment for a variety of reasons following the completion of the trial. In my view, it is unclear how long the plaintiff would have remained working at Moeco if he was not injured. However, having regard to the nature of the work, the plaintiff's employment history and study history and his lengthy periods of unemployment, I think it highly likely that the plaintiff would not have stayed at Moeco for any considerable period of time. I am fortified in this finding by the fact that the plaintiff was unhappy and sad following the closure of his bait and tackle shop and had not sought successfully further work in the period of over two years after the shop shut. The precise period the plaintiff would have stayed at Moeco is uncertain. I will consider this issue further in relation to the claim for past loss of wages and past loss of earning capacity. 6. Despite the plaintiff's submissions, and after careful consideration of the evidence, I am not satisfied that the plaintiff has established on the balance of probabilities that the accident occurred at Ninth Avenue at Campsie on 3 August 2015 as claimed by him. In arriving at that conclusion, I have taken into account the various matters raised in the written and oral submissions. While the evidence indicates the plaintiff's version to be an open possibility, I do not consider the onus has been satisfied in the present case by the plaintiff. I do accept that the plaintiff was injured on 3 August 2015. 7. First, the inconsistencies between the signed statements of the plaintiff and his oral evidence are significant. The later signed statements assert without qualification that the plaintiff was thrown onto the bonnet and hit the windscreen. This was also the version in the plaintiff's original Statement of Claim. While the plaintiff later admitted the second and third statements were incorrect in his evidence, the fact he was willing to sign them (including the second statement so soon after the alleged accident - see Exhibit 4) is relevant to the plaintiff's reliability. I also take into account the inconsistencies within the statements which I have referred to above. 8. Secondly, Mr Savvas gave significantly inconsistent evidence about the light at the time of the accident: see for example T242.40, T244.29, T259.41 cf T277.46. See the sunrise and sunset results from Geoscience Australia which became Exhibit 2 in the proceedings. As it was winter and in the light of Exhibit 2, I find it was dark at the time of the accident although the accident area was well lit by lights. However, initially Mr Savvas was "quite sure" about his evidence which he later retracted: see T259.41. See also paragraph 10 of Mr Savvas' 19 March 2016 statement compared to paragraph 5 of his 15 August 2015 statement (Exhibit H). This is relevant to the reliability of Mr Savvas' evidence. 9. Thirdly, the evidence of the time of the accident and the immediate journey to Canterbury Hospital given by the plaintiff and Mr Savvas is inconsistent with the Canterbury Hospital records and Ms Catalano's evidence. The plaintiff and Mr Savvas both gave evidence that it was between 7pm and 7:30pm on 3 August 2015 when the accident occurred at Ninth Avenue. I find that this is incorrect and not established by the evidence. I was impressed by the evidence of Ms Catalano, the triage nurse who treated the plaintiff at Canterbury Hospital. She gave her evidence in a confident and careful manner and I accept that she was making every effort to tell the truth. While she had a very limited recollection of the plaintiff, I accept her evidence in relation to the procedures at Canterbury Hospital at the relevant time and that it was virtually unheard of for a doctor to treat the plaintiff prior to the plaintiff being triaged by the triage nurse. 10. The medical records before me establish, in the light of Ms Catalano's evidence, that the plaintiff was registered in the Emergency Department at Canterbury Hospital at 9:08pm and considered and reviewed by Ms Catalano either at that time or shortly after. Although the plaintiff made submissions that on a careful review of Exhibit A pages 37 to 40, Dr Smith's review of the plaintiff's cervical spine was well into his examination and, accordingly, the timing of Ms Catalano's notes at Exhibit A page 38 must be in error, I find that this was not the case or if it was in error that the examination occurred only very shortly prior to 9:08pm. The procedure in relation to which Ms Catalano gave evidence appeared to be logical and consistent. A person had to be registered by the hospital Emergency Department before they could be considered by the triage nurse: Exhibit A page 35. Any examination by a medical practitioner must have occurred either after this time or, in extenuating circumstances, shortly prior to the time. Ms Catalano was adamant, having regard to her experience over several years at the hospital, that there could not have been an examination by Dr Smith for an hour and a half before the plaintiff was registered. There was no indication that the relevant entries were made "in retrospect" (see T210.26). There is also no suggestion that the plaintiff's medical condition was in any way life-threatening thus requiring immediate attention before formal triage. I note that Mr Savvas said it was "impossible" that he did not get to the hospital with the plaintiff until about 9.00pm: T325.32. My finding on this matter raises further serious doubts about the reliability of the evidence of the plaintiff and Mr Savvas as to the accident. 11. If the accident did occur at 7.00pm to 7.30pm on 3 August 2015 as claimed, then there is a considerable temporal gap after the accident until the plaintiff arrived at Canterbury Hospital which cannot be explained on the evidence unless Ms Catalono's evidence is rejected. I do not reject her evidence but accept it for the reasons given. 12. Fourthly, while counsel for the plaintiff said in his submissions that Mr Savvas "had no evident motive to be involved in any dishonest scheme with the Plaintiff" (paragraph 3.5), the plaintiff and Mr Savvas were longstanding friends. I say this merely to point out this matter and make no positive finding as to there being any dishonest scheme. 13. Fifthly, while counsel for the plaintiff pointed in his submissions to the defendant's failure to raise an alternative scenario by which the plaintiff suffered his serious injuries (paragraphs 1.4-1.5), the defendant is not obliged to do so. The onus rests on the plaintiff to establish his case: s 140 of the Evidence Act. There was no identified defendant who The Nominal Defendant could call on the matter. The court accepts, however, that the case is different to Cordin where there was evidence from a witness of another version of the accident inconsistent with liability. 14. Sixthly, the objective reported evidence seems to suggest glass on the plaintiff after the accident including in his mouth: see also Exhibit A pages 37-38; T222.41. This was confirmed by the plaintiff and Mr Savvas. There is a real question how this could have occurred with the mechanism of injury claimed in the location where the plaintiff says he was when he was struck. 15. Seventhly, the sideswipe/mirror hitting and shattering the side window after striking the plaintiff thereby producing shattered glass theory (the Sideswipe Theory) was not convincing in my view. Mr Jamieson described it as "only a hypothesis": T42.43. Neither Mr Griffiths nor Mr Jamieson could recall seeing such a claimed event in their lengthy expert careers: see T88.1. Mr Jamieson described it as "unusual". Mr Griffiths said it was unlikely but not impossible. However, even Mr Jamieson gave evidence which made the plaintiff's version of the accident unlikely or at least very doubtful. Based on where the plaintiff says he was struck (Exhibit E - Elkodat 3), Mr Jamieson accepted that the offending vehicle would have likely had to travel on the incorrect side of the road and over the raised median triangle. He said the sound of the mirror and side window shattering would have been "loud and violent" (T70.36) yet Mr Savvas (and the plaintiff) gave no evidence of such a sound. I accept his evidence on this issue. Whilst some leeway can be given to the plaintiff who says he was injured, the position of Mr Savvas as a person who was within a few metres of the alleged accident is different (see Exhibit 2 - Elkodat 3). In my view this is significant and tells against the plaintiff's case. Mr Jamieson also said the vehicle driving over the raised median would have created further noise. He also concedes that the plaintiff would have likely seen the vehicle in his peripheral vision shortly before impact yet the plaintiff said he saw nothing. This latter matter is slightly of less weight as the plaintiff says he was looking ahead. 16. In the end, for the above reasons I prefer the evidence of Mr Griffiths that an accident as stated by the plaintiff and Mr Savvas is unlikely. 17. Mr Griffiths expressed the opinion as a biomechanical expert that the plaintiff's injuries were inconsistent with a significant sideswipe impact: defendant's submissions paragraph 74. He states that abrasions and bruising would be expected which are not referred to in the hospital or general practitioner notes. Dr Machart in his third report took a different view and said that motor vehicle accidents do not "always produce predictable outcomes": Exhibit 1 page 20. The plaintiff suffered fractured ribs. While abrasions and bruises were not noted, the plaintiff's more significant injuries were. Whilst relevant (as Mr Jamieson could express no view on the issue), I do not find this factor a powerful reason for not accepting the plaintiff's case. 18. Eighthly, the first time the plaintiff formally altered his version of the accident from that stated in the Statement of Claim and in his latter statements (the second of which was given to his solicitor - see Exhibit 4) was at the time of the hearing following the experts concluding that a frontal impact with the plaintiff being thrown over the bonnet of the vehicle into the windscreen was unlikely. This suggests at the least a poor recollection by the plaintiff and a willingness to put forward as fact a matter he had no actual knowledge of. This is relevant to his reliability as to his evidence. 19. The plaintiff in his submissions raises a number of factors in support of his claim that his core factual premise of being struck down by a car whilst crossing the pedestrian crossing at Ninth Avenue Campsie on the evening of 3 August 2015 should be accepted. I have already dealt with the submissions about the defendant failing to put forward an alternative explanation for the plaintiff's injuries (plaintiff's submissions paragraphs 1.5-1.6), the existence of a plausible mechanism for the injuries in the light of the expert evidence (submissions paragraph 1.8), the lack of a motive by Mr Savvas (submissions paragraph 3.5 second appearing), the Canterbury Hospital timing issue (submissions paragraphs 2.4 and 4.1 and following) and the difference in placement of the neck examination in Dr Smith's notes compared to Ms Catalano's notes (plaintiff's submissions paragraphs 4.9 to 4.11 first appearing). I accept and find that the plaintiff was seriously injured on 3 August 2015, probably in the evening having regard to his injuries and the Canterbury Hospital notes: see plaintiff's submissions paragraphs 1.4. and 1.9. However, I disagree for the reasons given that the defendant's arguments have failed to undermine the plaintiff's central case: see submissions paragraph 1.12. The location where the plaintiff was struck (submissions paragraph 3.2 and following especially paragraph 3.5 first appearing) was marked by the plaintiff in Exhibit E and was consistent with the plaintiff's first statement (Exhibit 3) paragraph 5 prepared soon after the accident but not his oral evidence. Whilst the plaintiff submits he may be wrong as to the place of collision, his first statement given soon after the accident is consistent with his oral evidence. 20. The plaintiff's submission that the experts' reports only provided "some additional background that is helpful" (paragraph 5.6), in my opinion does not given proper weight to the matters in relation to the Sideswipe Theory which were raised not just by Mr Griffiths but by Mr Jamieson: he had never seen a side window smashed by a forced back wing mirror hitting a pedestrian before; the sound of the glass shattering would have been "loud and violent" but Mr Savvas apparently did not hear it; and the plaintiff's evidence as to where he was hit indicating that the offending vehicle was likely on the wrong side of the road. I accept, as submitted, that the expert evidence cannot be decisive but it is significant in this case. 21. In the end, whilst I find the plaintiff's case is possible on the evidence, I am not satisfied for the reasons given that it has been established on the balance of probabilities that the plaintiff was struck by an unidentified vehicle on 3 August 2015 whilst crossing a pedestrian crossing at Ninth Avenue in Campsie. 22. In arriving at the above findings, I take into account the analysis by Kunc J of the relevant authorities in Leung v Paul Mervyn Fordyce [2019] NSWSC 18 at [74], [78]-[79].
I have already dealt with the Canterbury hospital notes relating to the plaintiff's examination and treatment and his transfer to Royal Prince Alfred Hospital early the following morning for further treatment. I find that the plaintiff was discharged from Royal Prince Alfred Hospital on 4 August 2015 with some painkilling medication being Endone. He had been given morphine whilst at Canterbury Hospital.

[24]

Medical findings

The plaintiff had a number of prior medical conditions/symptoms which are set out in the report of Dr Sekel at Exhibit 1 pages 27-29. These include a fractured skull at age 10, sporting injuries, lower back pain following a motor vehicle accident in 2007, a slight head injury in a boating accident in 2003 and anxiety and sadness arising from the failure of a relationship and his boat and tackle business.
None of these injuries seem to have caused the plaintiff ongoing problems at the time of the alleged accident in August 2015. However, the plaintiff described being sad and down for a period of about two years prior to the accident due to the failure of his business which is relevant to take into account in considering the likelihood that the plaintiff would have remained in his occupation held immediately before the accident: see T62.10-.33.
There is considerable and inconsistent evidence in relation to the plaintiff's conditions arising from the alleged accident and his ongoing problems. The evidence appears to establish and I find that the plaintiff had the following injuries: 1. A deep laceration of the chin requiring stitches at Royal Prince Alfred Hospital: Exhibit A pages 26, 29 and 63; 2. A number of rib fractures on the left side particularly the left seventh rib: Exhibit A pages 24, 27, 32 and 33; 3. Left thoracic wall pain consistent with the rib fractures: Exhibit A page 63; 4. Mild pain in the left shoulder area: Exhibit A page 63. The plaintiff complained of pain in the left shoulder area on admission: Exhibit A page 37. In his evidence in chief, the plaintiff complained of pain in his ribs following the accident as well as pain in his left shoulder and under the left shoulder blade: T30.
There is an issue whether the plaintiff had any neck injury or cervical spine problems arising from the alleged accident. The medical notes at the Canterbury Hospital disclosed that the plaintiff had no cervical spine tenderness and had a good range of movement which the attending doctor cleared as not being any problem for the plaintiff: Exhibit A pages 38-39. No pain in the neck is recorded in the first consultation on 11 August 2015 but there is tenderness in the neck referred to in the consultation notes for 14 September 2015: Exhibit A page 129.
In his oral evidence, the plaintiff initially said that he had pain in his neck but then described it as "nothing much" and "nothing major": T36.48-T37.6. The plaintiff later gave evidence that he had problems with his neck which he started to feel the next day when he tried to lie down to sleep: T151.26-.34. The plaintiff agreed that when he saw Dr Sekel on 31 August 2018 that he had a full range of movement in his neck: T152.32. He also later stated that the only pain he had now was on the left side of his back just below the shoulder blade: T155.46.
In Dr Sekel's report dated 31 August 2018 it is recorded that the plaintiff confirmed that he had never had pain locally in the neck itself or in his lower back or legs: Exhibit 1 page 34. While Dr Davis finds that there was mechanical trauma to the cervical region in his report dated 7 December 2017 (Exhibit A page 12), it is unclear that Dr Davis had the full records from Canterbury Hospital as opposed to merely the discharge referral: Exhibit A page 9. The balance of the medical evidence is against any finding of any neck or cervical spine injury: see the report of Dr Browne dated 8 November 2016 (Exhibit A page 6), the report of Dr Browne dated 22 April 2019 (Exhibit A page 172), the various reports of Dr Machart and the report of Dr Sekel (see Exhibit 1 pages 8, 16, 23 and 41).
Having regard to the above evidence, I find that if the plaintiff injured his neck at all it was for a very short duration and does not continue to give him any difficulties.
As stated above, the plaintiff initially had complaints of mild shoulder pain: Exhibit A page 29, Exhibit A page 129. No fracture in the area was revealed on x-ray: Exhibit A page 33. In his oral evidence, the plaintiff referred to pain in the left shoulder area: T30.34; T36.46; T39.18; T40.18; T42.7. Although the plaintiff agreed that his various complaints had progressed such that the areas injured were "pretty good" (T41.23) his complaints seem to be in the thoracic area near the left shoulder blade: T37.8; T39.17; T40.15; T148.17; T155.39. At T155.46 the plaintiff said that the pain on the left side of his back just below the shoulder blade was essentially the only pain he had at the time of trial and that it was not there all the time: T155.45-.49.
The medical evidence is varied. Dr Davis found a mechanical trauma to the upper thoracic spine with a functional impairment of the plaintiff's left upper limb due to referred pain from the left upper thoracic region: Exhibit A page 12. That was as at 7 December 2017. The later reports did not find such an injury. Dr Browne in his report dated 22 April 2019, as stated above, concluded that the plaintiff had made a reasonable recovery from the initial injuries and did not refer to shoulder or back pain but to residual chest wall pain. Dr Sekel reports the plaintiff as saying that the continuous pain in the left shoulder completely resolved after one or two months: Exhibit 1 page 36. Pain in the left shoulder only allegedly occurs if the plaintiff carries a heavy weight. The plaintiff claimed of continuing ache over the left scapula if he lies on his back for a long time while sleeping or when carrying heavy items. No difficulty with the shoulder was found on examination and Dr Sekel was of the view that it should have resolved within a short period (Exhibit 1 page 39). Dr Machart noted in his first report dated 16 December 2016 that the plaintiff's left shoulder pain had now settled and there was a full range of movement: see Exhibit 1 pages 7-8. However, in the second report of Dr Machart tenderness was noted over the plaintiff's trapezius muscle: Exhibit 1 page 15. In his report dated 26 July 2019, Dr Machart noted no tenderness over the shoulder and that the plaintiff's problems were now "largely resolved". However the plaintiff's complaints in relation to his back near the shoulder blade are consistent and continued: T155.41. Initially Dr Machart in his first two reports found tenderness in the scapula musculature near the thoracic spine but not in the cervical or lumbar spine. He also noted some minor symptoms in the plaintiff's ribs.
The medical reports are thus inconsistent in relation to the plaintiff's ongoing complaints of pain. While Dr Davis found a number of problems which limited the plaintiff's capacity to work, his report is dated 7 December 2017. More recent reports suggest the plaintiff has at least some residual chest wall pain near the rib fractures on occasions. Dr Browne found this: Exhibit A page 172. Dr Machart also found some minor continuing symptoms in relation to the plaintiff's ribs: Exhibit 1 page 24. In his earlier report dated 22 November 2018 Dr Machart was vague in relation to the time at which the soft tissue injuries would continue. Although Dr Sekel found no tenderness on examination of the plaintiff's chest wall dated 31 August 2018 this was found by Dr Browne in April 2019.
Looking at the whole of the evidence, it appears that the plaintiff has some minor ongoing chronic soft tissue pain in his thoracic spine near the left shoulder blade and on occasions in the chest wall near the site of the fracture: see T155.29-.49. I accept the views of Dr Browne and Dr Machart that there are some minor residual problems in the areas I have indicated. I also accept that the pain is intermittent and was not present when the plaintiff was examined by Dr Sekel in 2018. This is relevant to the seriousness of the pain which on all the evidence I find to be mild and intermittent and apparently caused by more vigorous activities or heavy and repetitive lifting. On the balance of the evidence, I prefer the opinion of Dr Machart and Dr Sekel that these minor conditions do not currently prevent the plaintiff from engaging in full activities including his pre-injury employment. Dr Machart's opinion is the most recent from an orthopaedic surgeon and he had reviewed the plaintiff over a number of years.
However, I accept that the plaintiff had occasional continuing pain and restrictions arising from the accident in the thoracic wall and the musculature in the thoracic spine near the left shoulder blade when Dr Davis saw him in December 2017. This is also consistent with Dr Machart's first report (which he partly qualifies later): see Exhibit 1 pages 7-8.
In relation to the plaintiff's chin, although he is left with a scar, this does not cause him any ongoing difficulties.
A complexity relating to the plaintiff's position is the plaintiff's medical status from the beginning of 2018 to the present day. In McPherson v Dowell [2018] NSWDC 348 I considered at paragraph 216 and following the principles to be taken into account where it is alleged by the defendant that there was a further pre-accident or post-accident injury or condition. It is clear that an accident or an injury after the one the subject of the proceedings may be taken into account in considering damages: Dall v Choll [2018] NSWCA 219 at [5]. The defendant has the onus of adducing evidence that the plaintiff's incapacity at trial is caused or contributed to by a second accident or condition.
The evidence establishes to my satisfaction that from at least January 2018 to date the plaintiff has been incapacitated from performing work due to medical conditions and injuries which are unconnected to those received in the accident. On 16 January 2018, the plaintiff complained of constant lethargy and fatigue to his general practitioner: Exhibit 1 page 56. Soon after, the plaintiff attended his general practitioner complaining of a hamstring injury incurred through playing football. The general practitioner recorded the hamstring injury as being painful and involving swelling: Exhibit 1 page 56. The plaintiff in his evidence said that there was a "slight tear" and he "bandaged it up for a while": T150.34. Having regard to this evidence, it seems unlikely that the plaintiff would have been in a position for a number of months to have engaged in any heavy activity like his job at Moeco.
The evidence establishes that the plaintiff broke his foot in July 2018. In August 2018 when the plaintiff saw both Dr Machart and Dr Sekel, he was non-weight bearing, on crutches and wearing a medical boot on his broken foot: Exhibit 1 page 24. In his report dated 26 July 2019, Dr Machart refers to a left foot fracture in July 2018 "which causes him to be off work for 12 months": Exhibit 1 page 23. In his report dated 31 August 2018, Dr Sekel refers to the plaintiff's fracture in the foot and a "disruption of some ligaments in the foot" requiring an open reduction and internal fixation. Although the plaintiff described his foot at the time of trial as "pretty good" (T43.46), it seems clear from the whole of the evidence that it was a significant injury. See the plaintiff's description of the injury as summarised as "the ligament came off the bone": T43.7. At T66.6 the plaintiff said that he "was in rehab for maybe eight months".
Further, the plaintiff has had extensive thyroid problems which are still being investigated giving rise to malaise and anxiety: Exhibit 1 page 23. In addition, the plaintiff had a cholecystectomy in June 2019 which prevented him engaging in anything other than moderate lifting: Exhibit 1 page 23. The plaintiff's description of his problems was detailed and was at T43.7-.44, T66.4-.13, T149-150 and T154. At T154.8 the plaintiff accepted that he could not do any physically demanding work because of the combination of his broken foot, his "spleen" and other medical conditions which he had recently. At T149.15 and following, the plaintiff agreed that he could not run very fast because of his foot and that in winter his foot "hurts a bit".
Having regard to all of these different matters, in my view the defendant has established that the plaintiff was incapacitated from engaging in any work, including the work which he performed at the time of the accident, from the beginning of January 2018 until at least the date of trial. It is clear that at the time of completion of the trial the plaintiff was still recovering from his operation and his thyroid condition and the time of recovery was uncertain: T43.35-.43 and T149.47-T150.19.
Accordingly, in my view the plaintiff's primary area of pain and restrictions in heavy work was in the period from the date of the accident until the end of 2017 which was the time of the examination by Dr Davis.
In relation to the position at present, the plaintiff has continuing problems with his foot, thyroid and gallbladder removal. His time of recovery from these conditions is uncertain.

[25]

Duty of care and breach of duty of care

Having regard to my findings that the plaintiff has not established on the balance of probabilities that an accident occurred at the time and place stated by him and Mr Savvas, there is no accepted evidence establishing that the plaintiff's undoubted injuries suffered on 3 August 2015 occurred in the course of a motor vehicle accident giving rise to any liability.
I consider the issue in the event I am found to be in error in relation to my primary findings.
If it is found that I have erred and that on the evidence the plaintiff was struck by a motor vehicle whilst he was crossing the pedestrian crossing at Ninth Avenue on the evening of 3 August 2015 in circumstances where the crossing on all the evidence was well lit at the time, the plaintiff's position, in my view, is more straight forward.
Pursuant to s 3B(2)(a) of the Civil Liability Act (CLA), Divisions 1-4 and 8 of Part 1A apply to motor accidents. Accordingly, the court must consider ss 5B, 5C and 5D of the CLA.
The alleged unidentified driver in the present case clearly owed a duty of care to the plaintiff on his version of the facts: Marien v Gardiner [2013] NSWCA 396 at [33]-[35].
The risk of injury in the present case is the risk of striking a pedestrian and injuring them on the pedestrian crossing if a driver did not exercise due care in negotiating the roundabout and proceeding across the pedestrian crossing at a reduced speed.
The question whether there has been a breach of duty of care is to be addressed prospectively and by reference to what a reasonable driver in the circumstances of the unidentified driver would have done by way of response to any foreseeable risks of injury or sources of danger. The driver must take into account all users of the roadway including pedestrians: see paragraphs 33-34 of Marien v Gardiner. As the High Court made clear in Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413, driving requires reasonable attention to all that is happening on and near the roadway. Simultaneous attention to a number of different features of what is already, or may later come to be, ahead of the vehicle's path must be considered: see at [11].
In paragraph 75(iv) of his written submissions dated 26 November 2019, senior counsel for the defendant points to the expert evidence of Mr Jamieson that the pedestrian crossing was only eight metres east of the roundabout and submits that having regard to the speed the unknown driver would have been travelling, there was not sufficient time or distance to avoid a collision with the plaintiff and the plaintiff has therefore failed to establish a breach of duty of care in accordance with s 5B of the CLA.
On page 18 of his first report dated 4 April 2019 (Exhibit B), Mr Jamieson states that the positioning of the crossing, only eight metres east of the roundabout, was considered by him to be "sub-optimal". At page 28 of the same report, he refers to the hypothetical driver being confronted with the pedestrian on the crossing and having insufficient time or distance available to avoid them.
Sections 5B and 5C of the CLA provide as follows: "Division 2 Duty of care 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) 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): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
The analysis required by these sections will now be undertaken: 1. Was the risk foreseeable, that is, that it was a risk of which the defendant knew or ought to have known? In my view, the risk was clearly foreseeable. A person slowing at the roundabout and probably looking to their right should have slowed to a sufficient speed to assess all of the conditions around them. On the evidence, the crossing was well lit and was a short distance to the left. It would have been apparent to any reasonable driver coming up to the crossing. The risk of hitting someone on the crossing if the driver did not sufficiently slow down was, in my view, foreseeable; 2. The risk was not insignificant. The area that was lit was a pedestrian crossing and its surrounds. It was clearly possible for pedestrians to be crossing the crossing despite the allegation that the accident occurred in the evening. The fact the area was well lit showed that it was an area of some importance on the road. In my view, the risk of hitting someone on the crossing if the driver did not slow down was not insignificant; 3. In the circumstances, a reasonable person in the person's position would have taken those precautions. In my view, a reasonable person in the position of the alleged offending driver would not have proceeded either directly or to the left from Second Avenue without slowing down sufficiently to stop at the pedestrian crossing for anyone proceeding across it; 4. The probability that the harm would occur if care were not taken. In my view, it was highly probable that a person could be injured if the offending vehicle driver did not slow down to allow a person to cross the road; 5. The likely seriousness of the harm. A person being struck by a motor vehicle if it did not slow down near the crossing would likely cause serious injury; 6. The burden of taking precautions to avoid the risk of harm. This was not extensive. All the offending driver had to do was slow down his vehicle and take into account both the possibility of persons driving on the roundabout and also the well-lit area near the crossing and the crossing itself and to proceed slowly accordingly; 7. There was no particular social utility of proceeding quickly across the crossing. The social utility of slowing down to avoid injury to pedestrians was significant.
Overall, in my view, in the event that I am in error in relation to my factual findings, and the version of the plaintiff is accepted, a reasonable person in the position of the offending driver having regard to the location and the lit up area would have slowed down to avoid hitting the plaintiff. In coming to this conclusion, I take into account Regulation 81 of the Road Rules 2014 (NSW) which requires a driver to give way to any pedestrian on a pedestrian crossing and obliges the driver, in approaching the crossing, to drive at a speed at which the driver can, if necessary, stop safely before the crossing.
Accordingly, on the facts put forward by the plaintiff, there would have been a breach of duty of care by the offending driver. I reject the defendant's submission to the contrary for the reasons given.

[32]

Past loss of earning capacity and wages

The plaintiff seeks compensation for past loss of wages and earning capacity. The evidence establishes that the plaintiff was in paid employment on a trial basis at the time of the alleged accident. I have also found that the plaintiff has not been fit for his pre-accident employment (or any other employment requiring fitness and strength) since the beginning of 2018 for reasons unrelated to the accident. Accordingly, the position to be considered is the period from 3 August 2015 to about mid-January 2018.
In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [24] Basten JA stated that the provisions of MACA do not appear to depart from or vary the general principle at common law that the compensable loss to an injured plaintiff is not a loss of income but the loss of capacity to earn income which "is or may be productive of financial loss": Graham v Baker (1961) 106 CLR 340 at 347 and New South Wales v Moss (2000) 54 NSWLR 536 at [71]. His Honour noted that income earned prior to the accident may well be the best evidential basis to assess the earning capacity of a plaintiff but that income earned between the accident and the trial may also be (but often is not) a good indicator of current capacity. A plaintiff attempting to establish a diminution in earning capacity is not required to identify the value of the loss with great precision.
On the evidence, the following is apparent: 1. The plaintiff's work history prior to the accident was not strong; 2. This work history did not reveal any employment involving extensive heavy physical labour over a lengthy period; 3. The work history showed extensive periods of unemployment prior to the accident; 4. The plaintiff's wage in the week prior to the accident was established; 5. The plaintiff had been employed for only a week undertaking heavy physical work on a trial basis prior to his injuries.
The question therefore arises for determination as to the proper approach to adopt to assess the plaintiff's past loss of earning capacity as a result of his injuries.
The plaintiff claims an amount of $175,851 based on the plaintiff's net earnings at Moeco for the period from the date of the accident to 1 July 2018. The latter is chosen because of the plaintiff's alleged incapacity for unrelated medical conditions from that date. I have found above that the plaintiff could not have worked in his job at Moeco from mid-January 2018. The defendant submits that a buffer of $5,000 for past economic loss only should be allowed.
Based on the plaintiff's poor past working history, the apparent lack of work experience with heavy labouring jobs, the trial basis of the employment and the plaintiff's evidence of his state of mind in the years after selling his bait and tackle shop, I think it is highly unlikely that the plaintiff would have stayed working at Moeco for the period claimed by his counsel in his submissions. There is also the possibility that Moeco would not have retained the plaintiff at the end of the trial period. I think the most likely result is that the plaintiff would have stayed working at Moeco for a period of somewhere between three and twelve months (although it could have been less) and thereafter have obtained occasional modestly paid work in the motor car sales and maintenance industry in which he had some experience.
In my view, the proper way to deal with this period, having regard to the considerable uncertainties involved in the light of the plaintiff's work history and lack of experience with heavy labouring work, is to award a buffer or cushion.
Taking into account the net earnings at Moeco in the week prior to the accident, the plaintiff's long periods of unemployment, the plaintiff's lack of experience with heavy labouring work, the fact that he was only on a trial basis with Moeco and the fact that the plaintiff had previously had little work since his bait and tackle shop was sold, I would allow the sum of $40,000. This represents the possibility of continued work at Moeco for several months and some additional modest earnings from other limited work in the motor car industry.

[33]

Loss of future earning capacity

The plaintiff seeks an amount of $48,920 for future economic loss being a cushion equal to two years at 50% of the past net loss per week of earnings at Moeco with a discount for vicissitudes of life and an amount of $5,626 for lost superannuation on future lost earnings.
The defendant submits that nothing should be awarded.
Any award of damages for loss of future earning capacity under MACA is determined by s 126 of the Act which provides as follows: "126 Future economic loss - claimant's prospects and adjustments (cf s 70A MAA) (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."
Having regard to the plaintiff's current medical problems, it is unclear when he will be fit to undertake paid employment in the future.
In my view, the plaintiff's most likely future circumstances but for the injury within s 126(1) of MACA are that the plaintiff would have left his employment at Moeco after an uncertain period of time and then likely sought paid employment in the motor car sales and maintenance industry, cleaning cars or undertaking collection or delivery duties as he had previously completed or obtained a job in retail. It must be recalled that he had substantial background experience at his bait and tackle shop. I think it very unlikely that the plaintiff in the future would undertake heavy labouring work such as he had completed for one week prior to the alleged accident.
Having regard to my medical findings which are set out above to the effect that the plaintiff is currently fit to engage in his pre-accident employment when considering his injuries in the alleged accident, I find that there is no loss of future earning capacity. When the plaintiff recovers from his non-accident related health problems, he will not be prevented by the accident from seeking and engaging in paid employment.
Even if I am wrong in this conclusion, there is nothing in the medical evidence or my medical findings to suggest that the plaintiff would have been physically unable to complete the tasks I have suggested in the motor car industry or in retail. Accordingly, I find that the plaintiff's claim for future loss of earning capacity and future superannuation benefits has not been established.

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