Emvalomas v Bradley

Nature of case 1This is a disputed claim for damages for personal injury brought by the plaintiff, Nicki-Lea Emvalomas, against the defendant, Mrs Janet Bradley, involving alleged negligence in the driving of the defendant's motor vehicle, leading to a collision with the plaintiff, a pedestrian, on a marked pedestrian crossing at an intersection controlled by traffic lights. The plaintiff suffered horrendous injuries in the accident. Her injuries primarily involved a degloving injury to the scalp. This has resulted in permanent physical, cosmetic and psychological disabilities. In final submissions counsel for the defendant fairly and aptly acknowledged that the circumstances of the plaintiff's injury defied description.

Facts not in dispute 2At about 12.45pm on Thursday 8 November 2007, the plaintiff, then a 14 year old high school pupil, was a pedestrian in school uniform. She was walking together with her school companion Miss Kimberly Devine, in a northerly direction across Melrose Avenue at the intersection of Port Hacking Road and Melrose Avenue, Sylvania. At that time the plaintiff was struck by the front bonnet of the motor vehicle being driven by the defendant whilst the defendant was in the course of making a left turn from Melrose Avenue into Port Hacking Road. 3Immediately before the collision, the defendant had been driving her vehicle east in Melrose Avenue when she commenced to make her left turn into Port Hacking Road in order to travel north on that road. The plaintiff was crossing from the southern kerb of the intersection of Melrose Avenue and Port Hacking Road. She was crossing in a general northerly direction. She had almost completed her crossing and was about 2 steps from the kerb when she was struck by the defendant's vehicle. 4At the scene, Melrose Avenue was divided by a median strip, with one lane reserved for westbound traffic and two lanes reserved for eastbound traffic. 5At the intersection, eastbound traffic in Melrose Avenue faced traffic control lights. Those lights consisted of a turning arrow signal in lane 1, or the kerbside lane, controlling traffic turning left into Port Hacking Road. Traffic intending to turn right into Port Hacking Road had to do so from lane 2, but there was no right turning arrow signal, thus requiring that traffic wait at the intersection until a suitable break occurred in the traffic to permit a right turn. 6Northbound pedestrians walking in the direction taken by the plaintiff faced pedestrian traffic control lights that displayed " Walk " and " Dont Walk " symbols for the control of pedestrian traffic. There is no dispute that after a solid green " Walk " symbol was displayed for pedestrians crossing Melrose Avenue, that signal was phased to then change into a red flashing red " Dont Walk " or " red man " symbol before then changing to turn into a solid red " Dont Walk " symbol. 7There was no evidence as to the duration of time for each of those phases on the day in question. There was no dispute that during the display of the green " Walk " signal and the red flashing " Dont Walk " signal, east-facing traffic in Melrose Avenue faced a red left turn arrow signal. 8The impact between vehicle and pedestrian occurred within the marked crossing in lane 1 of Melrose Avenue at a point close to the kerb of the northern footpath. At the time there were 2 stationary vehicles in lane 2 or the median strip lane of Melrose Avenue waiting to make a right turn. The first vehicle in that line of traffic was, on the account of an independent eyewitness, a sedan vehicle, or on the defendant's account, a four-wheel drive vehicle, and behind that vehicle was a 12 metre long 12 tonne bus with space for seating 57 passengers. At the time the accident occurred, the plaintiff and her walking companion, both school girls, were on their way to a regular afternoon school sports event.

Issues 9The defendant denied that there was any alleged negligence on her part, and raised an issue of alleged contributory negligence on the part of the plaintiff. The defendant also disputed the extent of the plaintiff's claim for damages for her injuries. 10The pivotal factual issues that emerged from the liability evidence were the state of displayed colours and symbols of the traffic and pedestrian control lights that had faced the respective parties immediately before the collision. A related issue was the state of those traffic lights at an earlier time when the plaintiff had left the southern kerb of Melrose Avenue at the intersection. A further related issue was the colour of the east-facing traffic signals that faced the defendant in Melrose Avenue in the lead-up to the collision with the plaintiff. 11A further issue was whether the plaintiff had been running across the road at any time prior to the impact, and if so, at what stage of her crossing had this occurred. 12The resolution of all of those factual issues was dependent upon an analysis of an array of conflicting factual evidence as to the state of the traffic lights, and the conflicting observations of the respective witnesses. This required assessment of the credibility and the reliability of the testimony of those witnesses.

Summary of findings 13Although I have considered the plaintiff's liability and damages evidence as a whole in evaluating the credibility and reliability of her evidence, for convenience, in view of the considerable body of the evidence, and in my review of that evidence which I have set out in my reasons, I have separately set out the summary and factual findings on the liability and damages issues. In my assessment, nothing of significance arose within the evidence that adversely impacted upon the evaluation of the plaintiff's credit on factual matters. 14On the pivotal liability issues I have preferred the evidence of the plaintiff and Miss Devine to the evidence of the defendant and the witnesses called on behalf of the defendant. 15I have found that the plaintiff has established that her injuries occurred as a result of the negligence of the defendant as claimed. My reasons for that finding appear at paragraphs [236] - [246] of my reasons. 16I have found that the defendant has failed to establish that there was any contributory negligence on the part of the plaintiff. My reasons for that finding appear at paragraphs [247] - [254] of my reasons. 17I have assessed the plaintiff's entitlement to damages in the sum of $1,130,455 . My reasons for that finding appear at paragraphs [282] - [516] of my reasons.

Evidence overview 18In the plaintiff's case, oral evidence was given by the plaintiff, her friend and former fellow school student Miss Kimberly Devine, the plaintiff's sister, Miss Sarah Farrelly, and her mother, Mrs Janelle Farrelly. 19In the defendant's case, oral evidence was given by the defendant, as well as Ms Sylvia Chandler, who was seated in her nearby stationary vehicle at the time, and a bus driver, Mr Douglas Miller, who was also seated in nearby stationary traffic when the accident occurred. The defendant also called a police officer, Sgt Burrows, who, as a Leading Senior Constable at the time, took part in the police investigation of the events of the collision. 20Each party tendered bundles of medical and allied reports. None of the authors of those reports were called to give oral evidence. The defendant also tendered copies of some of the plaintiff's school reports. 21The defendant challenged the reliability of the factual accounts given by the plaintiff and Miss Devine concerning the events of the collision. The principal point at issue in that challenge was whether the display on the pedestrian control lights had in fact permitted the plaintiff to cross the intersection at the time, or whether the plaintiff had run across the road contrary to the direction of a solid red " Dont Walk " signal. 22The plaintiff challenged the reliability of the evidence respectively given by the defendant, Ms Chandler, Mr Miller and Sgt Burrows. The matters at issue in those challenges were, essentially, the reliability of, and factual basis for, the testimony of the defendant, Ms Chandler and Mr Miller insofar as their testimony suggested that the plaintiff had crossed the intersection contrary to the direction of a solid red " Dont Walk " signal, and whether or not the plaintiff had run across the defendant's path of travel. The challenge to the evidence of Sgt Burrows concerned the basis for some of the factual matters set out in the police statements taken from both the defendant and the plaintiff regarding the accident, and the general adequacy of the police investigation into the events of the collision. 23I have set out my reasons for the resolution of those conflicts following my summary of the material parts of the testimony of each of those witnesses. This follows my reasons for my determination of the credit or reliability of testimony issues that called for decision in the proceedings.

Assessed heads of damage 24The plaintiff claimed 6 heads of damage. Those heads of damage, and the related damages submissions by the parties, are listed below, together with the paragraph references to my assessments of those damages: Head of Damage claimed by plaintiff Plaintiff's Submissions Defendant's Submissions Award Paragraphs (a) Non-economic loss $325,000 $150,000 $325,000 [383] - [394] (b) Future loss of earning capacity $619,331 $75,000 incl superannuation $487,611 [395] - [450] (c) Future loss of superannuation $68,126 $Nil $53,637 [451] (d) Future domestic assistance $289,604 $Nil $229,827 [452] - [501] (e) Future out-of-pocket expenses $50,000 $10,000 $30,000 [502] - [515] (f) Out-of-pocket expenses $4,380 $4,380 $4,380 [516] Totals $1,356,441 $239,380 $1,130,455

B. LIABILITY EVIDENCE REVIEW AND FINDINGS 25In the paragraphs that follow I identify the plaintiff's pre-accident circumstances, followed by a summary of the differing liability descriptions from the various eyewitness accounts as that summary has served as an aide to my analysis. What then follows are my findings on the contentious matters of fact on the liability issues.

Plaintiff's pre-accident situation 26The plaintiff was born in 1993. At the time of her injury she was aged 14 years. She was aged 19 years at the time of the hearing. Before the accident, she was in good health and she was fit and active. She enjoyed a high level of physical fitness and was proficient in a variety of forms of dance, an activity that occupied a significant proportion of her spare time and her ambitions for her future. The activities associated with dance were important to the plaintiff, as they provided her with a feeling of wellbeing. 27At the time of her injury the plaintiff was a Year 9 student at Sylvania High School. Her pre-injury school reports across a range of subjects showed she was a generally well-motivated, polite and diligent student, with strengths in the subjects of Dance and Mathematics, with recognised talent in Physical Education. In other subjects, where her strengths were less pronounced, she had demonstrated a pre-injury preparedness to make diligent efforts to progress.

Array of eyewitness descriptions of the events 28In the paragraphs that follow, I set out a summary of the evidence of the respective witnesses on the factual matters concerning liability. Evidence of Miss Devine 29On the day of the accident, in the course of attending to their regular Thursday afternoon sporting activities, the plaintiff and her long-standing friend, Kimberly Devine, had walked from their school toward the nearby Southgate Shopping Centre. Miss Devine described how she and the plaintiff had walked to the cross intersection of Melrose Avenue and Port Hacking Road. That journey had taken them about five minutes from their school. 30They were on their way to a nearby gymnasium for weight training exercises as part of the requirements of their dance classes which were a part of their curriculum, but beforehand they needed to go to a nearby shop to purchase some necessary items. 31Another group of about 30 students had already walked ahead of the plaintiff and her friend toward another gymnasium at a nearby tenpin bowling centre in order to pursue their own scheduled sporting activities. Before the collision, that larger group of students that had preceded the plaintiff and her friend, had already walked some distance ahead of the plaintiff and Miss Devine, and they had already crossed the intersection well before the plaintiff was struck by the defendant's vehicle. 32In her evidence in chief, Miss Devine was unable to provide an estimate of the distance that had separated the two groups of students, but in cross-examination, she agreed with the proposition that the distance could have been of the order of about 200m or so. No evidence was called to contradict that account, and I accept that proposition. 33The intersection in question was controlled by traffic and pedestrian control signals. The evidence did not deal with the precise detail of the prevailing phasing pattern of those lights, but it was accepted by the parties that at the time, the lights provided for pedestrian and vehicular traffic in alternative phases as described in paragraphs [6] and [7] above. 34The plaintiff and Miss Devine had commenced to walk in a northerly direction along Melrose Avenue. They were crossing together, walking almost side-by-side, with Miss Devine walking slightly ahead of the plaintiff. As they walked, they were holding hands. They were walking within the portion of the intersection that was marked for pedestrians to cross the road. 35Miss Devine stated that at the commencement of their crossing of the intersection, a green pedestrian traffic control symbol was displayed and was facing them as they crossed. Miss Devine stated that they had commenced walking across the intersection at a normal pace and continued to do so until the pedestrian lights started to flash red. She said that this had occurred when they were about half way across the road, at which time they had started to walk more quickly. This account was challenged by the defendant. 36Miss Devine stated that in the course of the events she had described, she had almost completed her own crossing, and had either stepped up onto the gutter of the western side of Melrose Avenue, or was within about 2 steps or so of reaching that position, at which time she realised that the plaintiff, who had been on her right, was no longer holding her hand. 37At this time, Miss Devine stated that she had turned, as her attention had been drawn to the defendant's vehicle, which was making a left turn around the corner where they were crossing, in order to travel north in Port Hacking Road. Miss Devine made the observation that the defendant's vehicle was at that time making a loud screeching noise, and was accelerating violently. Those observations were also disputed by the defendant. 38At this point, Miss Devine said that she then ran to the defendant's vehicle, screaming and banging on the vehicle as it continued moving forward in Port Hacking Road. Miss Devine stated that the defendant's vehicle had then continued to proceed forward a distance of about some 3-4 car lengths along Port Hacking Road, and at the time the plaintiff was also being dragged along with it. At that time the plaintiff was underneath the vehicle, and she was screaming. 39Miss Devine stated that later, a man had approached the defendant's vehicle and had told the defendant to drive forward because the plaintiff was trapped under the vehicle. Miss Devine stated that when the vehicle was subsequently moved pursuant to that request, as was explained in the evidence of the plaintiff, it appeared that this manoeuvre caused the plaintiff to suffer further injury. 40Miss Devine described the defendant's actions in the aftermath of the collision. Miss Devine gave the impression that the defendant was somewhat agitated in the events after the collision. Miss Devine stated that the defendant had alighted from her vehicle, saying several times, that she thought she had run over a box on the roadway. In that regard, the defendant disputed that someone had banged on her vehicle in order to attract her attention and to get her to stop her vehicle. She also disputed the suggestion that at the scene of the accident she had said that she thought she had run over a box on the roadway. 41After the collision, Miss Devine described the condition of the plaintiff as having had the top half of her head removed. This was a reference to the plaintiff's hair and scalp being torn from its attachment and displaced either by the force and friction of the collision or its aftermath. She also described the plaintiff as having a leg trapped under a wheel of the vehicle. 42The investigating police did not take a contemporaneous witness statement from Miss Devine in the period that immediately followed the accident. 43Miss Devine stated that it was not until about six months after the incident that she had been asked to give a statement about the incident to an investigating police officer. That statement, and its content, was not further explored or identified in the evidence. There was no mention in the tendered police records of a version of events attributed to Miss Devine. Evidence of the plaintiff 44The plaintiff stated that at some time before the accident impact, she had seen the other group of students ahead of her cross the roadway. She stated that, just before the collision, she had been walking alongside Miss Devine, and they had been holding hands as they crossed the road. 45The plaintiff stated that before the impact she had crossed 3 lanes of the 4 designated traffic lanes that comprised Melrose Avenue at the intersection. She said she also had partly crossed the fourth of those lanes before she was struck by the defendant's vehicle. She stated that she could not remember seeing the displayed colour of the pedestrian light when she had commenced to cross Melrose Avenue. 46The plaintiff said that all she could remember about the pedestrian light was that it was flashing red. Initially, she said she made that observation when she had already set off from the southern kerb in order to cross the road. Later in her evidence she said that when she realised the pedestrian light was flashing red, she hurried across the last of the four lanes of Melrose Avenue at a faster pace. She said that she meant by that evidence that she then walked at a faster pace than normal walking, but she was not running. 47The clear impression gained from the plaintiff's evidence was that although she could not recall seeing the green " Walk " signal described by Miss Devine at the commencement of her crossing, they had crossed together, and as she crossed, she became aware of a flashing red " Dont Walk " sign. If the evidence of Miss Devine and the plaintiff is to be accepted, the compelling conclusion is that at the time they commenced to cross, they were lawfully permitted to do so, and were thus lawfully permitted to continue to proceed forward in order to complete their crossing. 48The plaintiff said that after she had passed the median strip on the roadway she had looked down Melrose Avenue, which I infer was to her left, and looked past a stationary vehicle at the traffic lights in the lane closest to the median strip. She said she thought there was a bus located behind that stationary vehicle. 49The plaintiff said that as she looked in that direction she saw nothing but parked cars, in what I infer from the context to have been the fourth, or the kerbside lane of Melrose Avenue. 50The plaintiff stated that she continued to cross Melrose Avenue towards what I infer was a point that was level to the parked cars she said were situated in that fourth lane, when she noticed the approach of the front of another vehicle, which I take to be a reference to the defendant's vehicle. The plaintiff then described how, in the resulting impact, she was then smashed onto the front of the bonnet of that vehicle. She stated that just before she was hit, the pedestrian light was flashing red at the time. 51The plaintiff stated that during these events the vehicle that had struck her kept travelling onwards after the impact, and had then proceeded to turn left to travel north into Port Hacking Road. She stated that before the defendant's vehicle had turned, she was already under that vehicle, and was being dragged along as the vehicle continued to move. She stated that in those events, she felt she had been forced to tumble under the vehicle, and felt she was wobbling constantly on the roadway under the vehicle as her legs, pelvis, back, chest jaw and face were being run over by the tyres. She said she was screaming, and could hear what she perceived to be the vehicle screeching and accelerating. She said she was also aware that her friend, Miss Devine, was also screaming, and was hitting the vehicle. The plaintiff stated that the vehicle then stopped after what seemed to her to be a few long seconds. The plaintiff stated that she did not lose consciousness as a result of the collision, and had retained a recall of those events. 52In the subsequent evidence of the investigating police officer, the position of the defendant's vehicle after the accident was identified to be some 20m to the north of the pedestrian crossing and in lane 2 of Port Hacking Road. 53On 5 December 2007, a month after the accident, the plaintiff gave a statement to an investigating police officer. At the hearing the plaintiff disputed aspects of the content of that signed statement which appeared in the notebook of then Leading Senior Constable Burrows. Significantly, she disputed the contention that just before the impact, she had crossed the roadway in question contrary to the signal or direction of a red light. Evidence of Ms Chandler 54The defendant called Ms Sylvia Chandler, who was the driver of a vehicle that had become stationary in a line of traffic in Port Hacking Road waiting to make a left turn onto the Princes Highway in order to enter the Southgate Shopping Centre. She was uncertain of her direction of travel. It would appear that she had been facing east in Melrose Avenue, which was the same direction of travel as the defendant. Ms Chandler said that at the time, her vehicle was either the second or the third car in a line of stationary traffic stopped at traffic lights. The absence from the evidence of a location map or a plan, despite its described existence in the police records, made it difficult to ascertain the true position of Ms Chandler's vehicle, and the extent of her vantage point to make observations of the events that had occurred at the time of the accident. 55Ms Chandler stated that her memory of the events was hazy and not good. She conceded her actual memory of the events was poor at the time she gave her evidence. Neither party tendered the, MFI "8", which was the statement that Ms Chandler had given to the investigating police officers. However, some cross-examination was directed to the content of that statement. An extract of Ms Chandler's evidence is as follows: "Q. At some point did you make some observations about something that happened on the footpath? A. I saw a couple of girls, schoolgirls, and I noticed that one ran out, or both of them basically ran out onto the road and one got hit by a car, I think the second one got hit by a car. Q. Where were the girls when you first saw them? A. They were on the footpath at the lights, the traffic lights. Q. Were they both on the footpath? A. Yes, they were. Q. When you first saw them were they moving or stationary? A. They were stationary. Q. Then you've given some evidence about what you saw. Did they move off together or separately? A. My memory is not that good - I can recall that one ran first and the other one followed, so. Q. When the other one followed, how would you describe the speed of her movement? A. I really can't recall, I'm sorry. Q. All right. You said that one ran? A. Yeah, the other one ran as well but I don't know how fast. Q. I'm not asking you to put an estimate of speed. A. Okay. Q. One ran, the other one ran, you don't know how fast. The first girl, did you see where she ended up, as it were? A. The first girl, I think, ended up on the footpath on the other side and I think the second girl got hit. Q. Did you see the second girl get hit? A. I saw the second girl fall but that was it, and a lot of screaming after that. ... Q. After that what, if anything, did you do? A. After that there were so many people, they just ran out of nowhere, so I think everyone at the time waited and then we drove off. So I went to park the car and I went back to the police to give my statement. Q. Did you make a statement to a police officer on that day? A. Yes, I did. CROSS-EXAMINATION BY MR LIDDEN Q. Do you have much of a memory of this incident now, Ms Chandler? A. No, I don't, it's all very hazy. Q. Your memory when you spoke to the police would have been much better since it was immediately after the accident, correct? A. Yes. Q. During your evidence you have given one answer where you said you believed something happened and two answers where you said you think something happened. I'll remind you of what those last two were. You think the first girl ended up on the footpath, "and I think the second one got hit". The use of those words, "I believe" and "I think", is simply a reflection of the fact that your memory is poor now of the event some years ago. Correct? A. Yes, that's correct." 56The cross-examination of Ms Chandler then continued as follows: "LIDDEN Q. So I just want to go through this with you. Your first observation, two girls walking across the road. You've agreed with that already? A. Yes. Q. Second observation, car making a left-hand turn from Melrose Avenue onto Port Hacking Road. Correct? A. Yes. Q. Third observation, the girl hesitating a bit? A. Yes. Q. The next it says, "Before she ran, her friend ran across before her." The next observation is, "After the car has turned, the two girls are running." Correct? A. Yes, correct. Evidence of the defendant 57In her evidence the defendant stated she was familiar with the area in question. She said she had been a driver of motor vehicles for about 30 years. She stated that in the events leading to the collision she had left the car park of the Southgate Shopping Centre and had turned into Melrose Street and had then travelled in the kerbside lane towards the intersection of Melrose Avenue with Port Hacking Road with the intention of turning left into that road. 58The defendant said that as she drove towards that intersection she had remained in the kerbside lane. A question arose as to whether she had to make an earlier detour around a parked vehicle or vehicles in that lane in the course of that journey. She could not recall that there were any such parked vehicles in the kerbside lane. She said that in that journey she recalled seeing a large four-wheel drive vehicle in the lane to her right, waiting to turn right into Port Hacking Road which was the lane adjacent to the median strip of Melrose Avenue. 59The defendant said that as she drove towards the intersection she observed the traffic control light that was facing her was green, and that it was also displaying a green arrow signal permitting her to make a left turn. She stated that in the course of that journey, she did not see any pedestrians whatsoever. She stated she had been driving at a slow speed of no more than 10km/h. 60The defendant stated that in the lead-up to the collision, she believed she had the right to make a left turn at the corner as she had a green light in her favour. In the course of that journey she said she had travelled no more than a metre into the corner when she felt that something was not right as she perceived something was obstructing her vehicle. She said she then stopped her vehicle, got out to analyse what had happened, and then saw a person caught under her vehicle. She said she then " sort of panicked " and rang the triple-0 number, and following this, emergency services arrived. 61The defendant denied that anyone had banged on her vehicle in the course of these events. She denied saying, to anyone that she thought she had run over a box at the time the plaintiff had been struck by her vehicle. The defendant stated that she was shocked at the scene and said that a police officer had later driven her vehicle to Miranda Police Station, where in due course she made a statement. 62The defendant was cross-examined at length. She said that after a lapse of 4 years since the events in question she could not remember whether there was traffic parked in the kerbside lane at the time. She agreed that if there were vehicles parked in the kerbside lane in Melrose Avenue as was suggested to her, she would have had to change lanes to the right, and to then change lanes to the left again in order to make her intended left turn into Port Hacking Road. The defendant conceded that it was possible in the events leading to the collision that she may have passed parked vehicles in the kerbside lane of Melrose Avenue, thus requiring her to move from the right lane to the left kerbside lane after passing such parked vehicles. Having conceded that possibility, she reiterated she could not recall this to have been the case on the occasion in question. 63When this evidence of the defendant was explored it became apparent that her evidence was based on her view of what she would have done at the time as a matter of routine rather than being based upon an actual recollection of the facts as to what she in fact did on the day in question. 64The defendant stated emphatically that she was " in the left hand lane waiting to make a turn up to Port Hacking Road ". She stated that there was a large four-wheel drive in the second lane from the kerb in Melrose Avenue, and also noted that there was a bus that had stopped after the incident. She denied that she had beforehand overtaken the bus, and she was emphatic that the four-wheel drive was the only vehicle that she could see at the intersection. 65The defendant was adamant that she did not see any pedestrians in the area at all as she drove into the crossing to make her left turn. She agreed that when driving, it was important to be sure there were no pedestrians on the crossing before making such a left turn. The defendant's explanation for the fact that the front of her vehicle had struck the plaintiff, without her having seen the plaintiff beforehand, was that the pedestrian had crossed the intersection contrary to the lights. She stated that the basis for that statement was something she had been told. The defendant consistently said she had not seen the plaintiff at all before the collision. The defendant stated that the incident in question had happened very quickly. 66When the defendant was cross-examined about the content of her statement to the police, in which mention was made of a red circle traffic control light facing her at the time of her turn into Port Hacking Road, contrary to her oral evidence in which she said that the light was green, she explained that it was possible that she may have been confused in what she was saying at the time she made her statement to the police. 67However, in her evidence she was adamant that when she turned left, there were no pedestrians crossing from either side of the roadway. She was also adamant that she had a green arrow and green light ahead of her at the time she turned left into Port Hacking Road. In her evidence she accepted the proposition that she may not have picked up the mistaken reference to the red light in her police statement when she had read it on the day it was taken down because she was traumatised at that time. 68The defendant agreed with the general proposition that when facing a green left turn arrow and in the course of making a left turn, at times, it was possible that pedestrians would not have completed their crossing. She stated that she had encountered that situation " repeatedly when I'm on the road ". She agreed that when driving, she had to be on the lookout for such situations. It appears to me that in this case, she made no such allowance for such a circumstance because she had not seen the plaintiff on the road at all before the impact. 69In her evidence the defendant said that at the time of the collision she was not aware of the plaintiff having been struck by the front bonnet of her vehicle. This raised a question as to whether at that time she was in fact looking straight ahead out of her windscreen, or alternatively, somewhere else. This raised the question of whether she had been keeping a proper lookout. The defendant also stated that she was not aware of someone thumping on her vehicle after the accident had occurred. That evidence gave rise to questions concerning the reliability of evidence of the defendant. 70The defendant gave the following evidence: "Q. How could you not see someone in front of your car that you ran over? How could you not see it? A. I repeat what I said, I'm sorry but I did not see any person or persons crossing the road from one side to the other or crossing the road from the far aside of Port Hacking Road back. Q. And the reason for that would be because you weren't paying any attention? A. I was paying attention sir. I know that intersection extremely well. I've been living at Sylvania for many years and I always, quite frequently do shopping there or have cause to go there, and I did on this occasion. Q. The police asked you a question during this procedure Mrs Bradley and I want to read it out to you, "Did you notice where the girl who had ended up under your car had come from?" Now what's your answer to that question if I ask you it today, did you notice where she came from? A. I don't know. Q. Wouldn't have a clue would you? A. I honestly do not know to this day." 71In addition to the defendant having given a statement to the investigating police officer concerning the events of the collision, she had also given two separate statements to her CTP insurer, the NRMA. These were first, some 5 months after the accident, and secondly, some 21 months after the accident, and which were respectively dated 17 April 2008 and 17 August 2009. In the proceedings those statements were respectively marked: MFI "5" and "6". Counsel for the defendant initially stated his intention was to tender those statements, but later took a different course and the statements were not tendered. 72The defendant denied that her vehicle had accelerated after having struck the plaintiff. She said she stopped her vehicle immediately on the crossing in Port Hacking Road, and she denied she had only stopped when she had been forced to do so. This raised a question as to the reliability of the defendant's testimony given that the investigating police officer had observed her vehicle to be stationary some 20m away when later observed, which was roughly consistent with the estimate of 3 to 4 car lengths proffered by Miss Devine in her evidence. 73The defendant stated that after the accident she had made her own handwritten notes about the incident. That was an entirely understandable course for her to take. However, she said that she had never referred to those notes again after the accident, and said she had not used those notes as a basis for the statements later obtained by the two insurance investigators who interviewed her in 2008 and 2009 on behalf of the CTP insurer: MFI "5" and MFI "6". 74It was clear from the evidence the defendant gave in these proceedings that it was based on those statements she had given to the CTP investigators. This was apparent from her answers to questions put in cross-examination on the issue: "Q. If this accident is so fixed in your mind that you can't get rid of it, why would you need to read over your statements many times in the last fortnight, you wouldn't need to do it all would you? A. Well I try not to think about the last four years, but when this Court case was coming to a head I knew I had to refresh my memory somehow and have it factual. HIS HONOUR Q. Can you help me with this Mrs Bradley, when you prepared the two statements which are now under discussion, did you refer to the notes you made shortly after the accident for the purpose of making those statements? A. No. I referred to my memory and the statements as they were. LIDDEN Q. So have you ever referred to those notes that you've got at home? A. No, I thought I was wiser sticking to the statements that had been put. Q. You were a bit concerned were you that the notes you had at home and your statements would be inconsistent, is that why it was wiser? A. I don't know the answer to that. Q. Well the notes you had at home would be a lot better than these statements wouldn't they, because they would have been done pretty shortly after the accident, not years afterwards? A. I decided to, to stay with the statements that were put as I was requested to record them. Q. Mrs Bradley, are you deliberately refusing to answer that question? A. No, I am not. Q. Well please answer it. I'll ask it again for you in case you've forgotten it. Did you deliberately not read these notes that you have at home because you thought there would be inconsistencies between them and your statements and you thought it was safer to stick to the statements the insurance company took from you, is that what happened? A. I decided to stick with the statements that were put with the insurance company. Q. What was the point of taking these notes in the first place if you are never going to refer to them? A. I didn't know where this would lead at all at the time, point in time. Q. Why make the notes in the first place? A. Well if you're involved in a situation, whatever it may be, and something specific happens and you want to remember it down the track, don't you make some notes regarding same?" 75A difficulty arose in assessing the reliability of the evidence of the defendant as her decision to " stick with the statements " could not be evaluated by reference to any other material which was known to exist, namely, MFI "5" and MFI "6" and the notes she made on the day of the accident. 76The defendant had without doubt been extremely distressed at the accident scene, especially after discovering the plaintiff under the rear of her vehicle. She denied that after the incident and at the scene she had said she thought she had run over a box. She also denied that she had not been taking due care when she was driving. She stated she had been taking extreme care at the time. When it was suggested to the defendant during cross-examination that she had not been paying attention at the time of the incident she gave the following evidence: "Q. You weren't paying any attention at all as you proceeded up this street-- A. You can look right and left-- Q. --were you? A. --at that junction as you are aware now. I was probably keeping an eye on the four-wheel drive beside me as well. Q. Is that your explanation for not seeing a pedestrian on the immediate left kerb of where your car was or crossing in front of you, is that the reason you're advancing? A. I did not see any person crossing the road between the far side of the road and the kerb on the far side of Melrose Street. HIS HONOUR Q. Mrs Bradley, the four-wheel drive that's been mentioned, that was stationary and to your right wasn't it? A. Yes correct. Q. So if you were turning left, why would you need to pay attention to a stationary vehicle on your right? A. Because I always watch traffic to the right and the left when I'm making a turn." 77I will return to my analysis of the evidence of the defendant when identifying the conclusions I have reached following my review of the entire evidence on the liability issues and after reaching my conclusions on the reliability of testimony. Evidence of Mr Miller 78The defendant called oral evidence from Mr Douglas Miller, an eyewitness to the events. At an early stage of the hearing, counsel for the defendant had given an indication that Mr Miller may be a reluctant witness. 79In his cross-examination, Mr Miller stated that in the 4 years since the accident in question, he had not been interviewed by anybody, nor had he been through the circumstances of the collision with anyone, apart from relating an account of the events to his family immediately after the accident. He stated that the horrendous nature of the events in question had kept his recollection of them fresh in his mind over the years since the accident. He denied that he had been deliberately unco-operative as a witness, saying he just did not want to discuss the events. In that context, Mr Miller acknowledged that he had tried to avoid giving evidence in the proceedings. 80It was plain from Mr Miller's evidence that he found the circumstances of the plaintiff's injury quite distressing, including when he had to recount them at the trial. In the circumstances that prevailed at the accident scene, this was readily understandable, especially given that Mr Miller had rendered some initial assistance to the plaintiff whilst she lay on the roadway, having been confronted with the sight of the plaintiff's hair and degloved scalp pulled back on her head. His distress at recounting the events in question was readily apparent, and I considered that this adequately explained his initial reluctance to give evidence. Notwithstanding this, I am satisfied Mr Miller did his best to recall the events to the best of his recollection and perception. 81Mr Miller denied that his resort to the use of the qualifying term " I believe " when giving his evidence indicated that he had no true memory of the events, or alternatively, indicated an uncertain recollection on his part. 82Mr Miller said that he had driven his bus down Melrose Avenue to the point where he stopped and waited to make a right turn into Port Hacking Road. Mr Miller summarised his recollection as having driven up to the red traffic light, where he saw a green arrow signal, which was by inference, to his left, following which he then saw the accident occur. Mr Miller's vantage point was that he had been seated in the driver's seat of his bus which was located just behind a stationary vehicle in the median strip lane in Melrose Avenue whilst both of these vehicles were stationary and waiting for an opportunity to make a right turn into Port Hacking Road. 83In the events leading to the accident, in approaching the rear of the vehicle in front with his bus, Mr Miller had been slowing down the speed of his bus, which he said weighed about 12 tonnes and was about 12m in length. He said he had brought the bus to a halt at about a point half a metre behind the stationary vehicle located in front of the bus. That manoeuvre obviously occupied his primary attention during that time, as he acknowledged. I consider that his evidence concerning the other observations of the events he recounted in the lead-up to the impact must be considered in the light of that fact. 84Mr Miller thought that the line of traffic he was in had been facing a red light for east-facing traffic in Melrose Avenue. He said he had been stationary in that position for no more than 10 seconds before the accident involving the plaintiff had occurred. He said he saw a vehicle in the adjacent lane to the left of his bus, facing a green arrow, which permitted the driver of that vehicle to make a left turn. 85In his evidence in chief Mr Miller stated that he first saw the plaintiff and Miss Devine when they were crossing Melrose Avenue at about the location of the median strip. I infer from his evidence on this point that they were crossing by walking from his right to his left, but ahead, and in front of the vehicle that was stationary in front of his bus. He said the girls were side-by-side and moving quite quickly, at a fast pace, which he initially described as " probably a jog or a run ." His evidence on this point changed significantly, in that he also variously described the girls as running across the intersection. 86In that regard, whilst he said he had seen them run across the intersection at the same time as the defendant had the green arrow signal displayed in her favour when she " took off ", as he described it, he later agreed the girls may have been walking. The difference between those descriptions by Mr Miller is a matter of some considerable significance to the evaluation of the reliability of his evidence. 87In relation to the state of the lights, the position of the plaintiff during the crossing, and the movement of the defendant's vehicle, Mr Miller gave the following evidence in chief: "Q. After you observed them on the median strip, just tell us what happened next? A. The car in the left hand lane had the green arrow. As she's taken off she's caught one of the girls and she basically came out under the back of the car. Q. Are you able to tell the Court in relation to the intersection where you observed the point of impact? A. Just on the pedestrian crossing itself. Q. Was it on Melrose or Port Hacking? A. I believe they were still in Melrose. Q. Did you at some stage make an observation of the pedestrian light that was facing the girl pedestrians? A. It was red. Q. By that answer, was it flashing red? A. No it was a solid red. Q. At any time during your observation was it other than that? A. No." 88The evidence given by Mr Miller concerning the defendant's vehicle taking off, and the state of the pedestrian lights, must be read in conjunction with some further evidence that he gave on this point, namely: "Q. What was the car doing before it moved off? A. I wasn't - didn't see that. Q. Where was the car when you first saw it? A. It was going through the green arrow. Q. What did you see first, the girls crossing the road or the car? A. I saw the girls then the car. Q. So a car appeared from somewhere to your left? A. Yeah, down to the left of the bus." 89Mr Miller later agreed that he saw the defendant's vehicle appear from somewhere to the left of his bus and go through the green left turn arrow after he had seen the girls crossing the road. Mr Miller also agreed that if the defendant's vehicle had been stationary before it " took off ", it would have had to have been beside, and by inference, to the left of one of the vehicles in front of him. 90Mr Miller claimed that from his elevated vantage point within his bus, on taking a diagonal view to his left, he was able to see a red pedestrian light at the pedestrian crossing and a green left turn arrow signal. He said that this view would have enabled him to see whether the defendant's vehicle was moving or stationary before it turned left into Port Hacking Road. Mr Miller said at the time he made those observations, he was able to see the rear of the defendant's vehicle, but he was unable to say whether or not the brake lights on the defendant's vehicle appeared to come on. He said that the explanation for this was because he " probably wasn't looking then ". This raises questions as to whether Mr Miller was actually looking in that direction when the collision occurred, and whether he had in fact seen the red pedestrian light as he had claimed, or whether his version was an inaccurate reconstruction. 91Mr Miller also claimed to have seen the pedestrian light when it was flashing red. He said that he had seen the pedestrian light first flashing red, and then showing solid red. He claimed that he had the opportunity of seeing this because he had just seen a group of girls crossing the road earlier. In this regard, he disputed the proposition that another group of girls were at a distance of as far as 100m or 200m ahead. In this context, he said he had not seen the pedestrian lights displaying a green signal because he had not been at the scene at the time when those lights were green. 92Mr Miller said that he had seen a flashing red pedestrian light at the time his bus had been slowing down to a halt near the intersection, even though that pedestrian light was located at about right angles to his position in the traffic. At a later point in his evidence, Mr Miller conceded that he could not see the pedestrian lights when he was slowing down. Presumably, this was because he was paying attention to the narrowing gap between the front of the bus which was slowing down, and the rear of the stationary vehicle in front of him. 93Mr Miller also conceded that from where he was seated in his bus, the hooded cowl covering of the pedestrian light would have covered more of the pedestrian light from view, the higher up that one's observation point was situated, such as the position of his elevated seat in the bus. However, he said that the state of the lights could have been seen from an angle. 94The following evidence was given by Mr Miller in relation to the events preceding the accident and in connection with the earlier operation of the flashing red pedestrian lights: "Q. That creates a problem, do you not think, with your earlier evidence that you saw the pedestrian light flashing red as you were slowing down? A. It may, yes. Q. Do you think that was some sort of reconstruction, that you've just thought, oh well it must have been flashing - before it must have been flashing red before it turned red therefore I must have seen it. Do you think that was what was going on in your mind? A. Yes. Q. In any event, let's return to the girls. You did see a group of girls crossing on that crossing, didn't you? A. Yes. Q. How many, roughly? A. I couldn't say. Q. But they were right in front of you a metre before you stopped, weren't they, in your direct line of vision? A. I didn't count them. Q. Well give me an approximation please, 10, 20? A. Possibly 20. Q. As you were slowing down they were still crossing, is that right? A. No. Q. They must have been, you saw them when you were a metre from stopping, so they're not going to have crossed all of the distance on your side of the road while you just pulled up in a metre, are they? A. To me, crossing, they were at the end of the crossing. HIS HONOUR Q. What does that mean, if there was a group of them. Does it mean the last one was just completing her crossing? A. Yes. LIDDEN Q. Does that not mean you only saw the last one crossing rather than the group of them? A. Yes. Q. Well you told me earlier you saw the group crossing, didn't you? A. Well they were crossing over the end of it. Q. When you told me you saw the group crossing, is it right what that really meant was you saw the last one crossing and the other already up on the footpath? A. Yes. Q. Do you really have any proper memory of any of this? A. Yes, I do." 95When Mr Miller was asked about the presence of a large four-wheel drive vehicle located in front of his bus at the time of the accident, he stated that to his observation there was no such vehicle in that location. That evidence was in contrast to the evidence given by the defendant, who said there was such a vehicle in that position at the time. 96In the face of challenges to his evidence, Mr Miller was adamant that the plaintiff and her companion were running from where he had first seen them in the area of the median strip. He also agreed that the events of the collision had all occurred very quickly. 97Mr Miller estimated that at the time of the accident, the defendant's vehicle had been travelling at about 2-3 km/h. Mr Miller said that after the plaintiff had been hit, she had then " come out the back " and underneath the defendant's vehicle, and had then been dragged for several metres. 98Mr Miller said he did not see the bonnet of the defendant's vehicle strike the plaintiff. He said he had observed that the defendant's vehicle did not stop, and he had observed it to proceed to drive away. In this context Mr Miller said that he had climbed out of his bus, walked across both the lanes of traffic, and had then stood in front of the defendant's vehicle at a time when the defendant was still trying to drive off. He said he had used his own body as a barrier to the defendant's continued attempts to drive off. He said that at the same time, he was yelling at the defendant to stop because she was not giving any indication of stopping her vehicle. He said that at the time, it had probably been him who had pounded on the defendant's vehicle in order to stop it from moving off. However, later, he agreed in cross-examination that he could not actually recall that fact. 99At the conclusion of his cross-examination, Mr Miller denied having been confused in his own mind as to what he had seen of the events in question, and as to when he had seen them. However, and significantly, he conceded that it was possible that the girls whom he had described as having run across the roadway, may have in fact been walking, and that they may have just sped up to some degree, just before the impact with the defendant's vehicle.

Police investigation of the events of the collision 100The defendant called Sgt Burrows to give oral evidence. Following the accident, under the direction of his traffic supervisor, as a Leading Senior Constable, he had attended and investigated the accident scene and had later taken statements, first from the defendant, and some weeks later, from the plaintiff. On behalf of the plaintiff, a challenge was made to the adequacy of the methodology of the police investigation of the accident. I shall return to this issue after reviewing the products of that investigation. Defendant's statement to police 101On the day of the collision, the defendant attended Miranda Police Station where she was interviewed by then Leading Senior Constable Burrows, who took a signed statement from her in the following terms: "Q. I am going to ask you certain questions in relation a motor vehicle accident. You do not have to say or do anything if you do not want to. Do you understand that? Yes. We will record what you say or do. We can use this recording in court. Do you understand that? A. Yes. Q. Were you the driver of motor vehicle, registration number (State) ZIN 404 (Plate) NSW when it was involved in a motor vehicle collision at (location) Sylvania (date) 8.11.07 at (time) 12.45pm? A. Yes. Q. Who is the registered owner of motor vehicle, registration number ZIN 404? A. My self. Q. Was anyone injured in your M/V resulting from the crash? A. I was the only person, no. Q. Did you consume any alcohol prior to the crash? A. I don't drink. Q. Tell me what happened. I had been parked in the general parking area of the Southgate shopping centre. I left the parking area via the Formosa St exit. I then went onto Melrose Ave to turn onto Port Hacking Rd. As I approached the intersection of Melrose Ave and Port Hacking Road I saw that there was a green left turn arrow facing me. I also saw that there was a red circle traffic light facing me. As I neared the intersection I changed from lane 2 into lane 1 (from the right lane into the left lane). I would have been travelling no more than 10 to 15 km/h as I approached the intersection and as I had a green left turn arrow continued to the intersection at that speed and then began a left turn. As I attempted the left turn, I don't recall what happened but I recall a whole lot of screaming and yelling. I stopped my car once I was on Port Hacking Rd. I got out of my car and went to the rear of my car. I saw that there was a girl who had what appeared to be a serious injury to her head laying to the rear of my car with her legs under it. I saw that there were people helping her. I then took my mobile phone from my bag and rang 000 and when I spoke to the operator I asked them to send all of their services ASAP please. I went back to the side of my car and saw that she was being treated, she had a sweater under her head and a cloth on her wound. I attempted to get details from the ambulance officer. They were unable to tell me but did tell me to get off the road. I was then helped to a seat by the ambulance officer. I saw that the girl was being treated by the ambulance officers and that she had a neck brace on and was placed onto a back board before being placed into the back of an ambulance. That ambulance then left the scene of the accident. I was assessed by other ambulance officers. After some time I was handed a brochure. The police then spoke to me and organised for me to go back to the police station to make a statement. Q. Did you notice where the girl that ended up under your car had come from. No. Like I said she came out of no where. I don't know how she got to be in front of my car, or over which side of my car she came from. It all happened in a split second or faster, I can't tell you any more than that. Q. Is there anything else you wish to tell me in relation to the accident. A. No." 102At the scene, the investigating police identified two other witnesses as being Ms Chandler and Mr Miller. The police investigation had not recorded the presence of Miss Devine as a witness. Accordingly, no statement had been obtained from her. 103I have already referred to the absence from the tendered evidence of the statement taken from Ms Chandler by the investigating police: MFI "8". It appears that no signed statement had been obtained from Mr Miller. After Mr Miller had given evidence in the proceedings and had been excused, the defendant sought to tender a short summary note that had been composed following a conversation that had taken place between Mr Miller and the investigating police officer. That tender was rejected as I considered that those summary notes lacked sufficient probative value: MFI "7". I also took that view as Mr Miller had already been called and excused as a witness and any relevant matters could and should have been explored in his evidence. No application was made for Mr Miller to be re-called as a witness. 104On the day of the accident, the investigating police officers created a COPS document or report that comprised a computerised summary and record of the police investigation: Exhibit "M". The manner of construction of the content of that document was the subject of some contention on behalf of the plaintiff. In that regard, it was contended that on the face of the document, and absent further explanation, it appeared that the investigating police had concluded at an early stage of the investigation, that the collision had occurred as a result of fault on the part of the plaintiff, in allegedly running across the road against the direction of a red " Don't Walk " signal. I shall return to this question in my consideration of the issue of alleged negligence on the part of the defendant. Plaintiff's statement to police 105At about 6.00pm on Wednesday 5 December 2007, which was slightly less than 1 month after the accident, and about 3 weeks after she had been discharged from Westmead Children's Hospital, the plaintiff and her mother attended Miranda Police Station where the plaintiff was interviewed by then Leading Senior Constable Burrows, who had some previous contact with other members of the plaintiff's family concerning unrelated matters. The resultant statement from that attendance had incorporated within it a preformatted preamble, followed by 9 further handwritten paragraphs. The plaintiff signed the last page, and initialled each of the other pages. The entire statement was in the following terms: "1. This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false, or do not believe to be true. 2. I am 14 years of age. 3. On Thursday the 8 th November 2007 I left Sylvania High School about 12.35pm to walk to the Southgate lanes, ten pin bowling centre for school sport. I was walking (sic) my best friend, Kimberly DEVINE. We were walking on our own about 100 metres behind the group that was going to Fitness First. 4. As I got to the intersection of Port Hacking Rd and Melrose Avenue, the Fitness First group was ahead of us, near the bus stop outside the bowling alley. As I approached the intersection, which has traffic lights, I saw that the pedestrian light was red. 5. I started to cross with the red pedestrian light facing me, as I crossed the westbound lanes I was looking at the traffic lights for the eastbound traffic on Melrose Ave. I saw that the circle light was red as the left turn arrow light was orange, it was orange when I started to cross and was still orange when I got to the middle. 6. I kept going, I wasn't running but was walking fast, Kimberly had crossed before me. I saw that there was a car stopped in the lane closest to the median strip on Melrose Ave and I think there was a bus behind it. I looked to my left when I was on the median strip and kept walking. I saw a car coming towards me in the left lane but kept walking because I thought it was going to stop. I then thought that the car was going to (sic) fast to stop. I couldn't get out of the way, it was like two seconds and then I got hit. 7. I can remember being hit by the car and my head slamming onto the bonnet and then going under the car as it turned the corner. The car stopped. Not long after I was hit the car stopped but then started to go again with me still under the car. This caused me to be dragged under the car and it felt like every wheel ran over my tummy, back and head. I remember it ripping at my head. 8. The car came to a stop again and a (sic) this time I was laying face down on the road under the car. It felt like my right leg was stuck under the wheel. When I lifted my head I could feel the back of the car across my shoulders. Lots of people came to help me. I could see a lady running back and forth. I heard her say "We have a girl under a car, with bones sticking out, I think she's bleeding to death. People kept helping me. I remember the car being moved off me. 9. I don't remember a lot after that, just small bits of it, like when the ambulance were saying things like "I'm going to put a neck brace on you." "We are going to roll you onto a back board. 10. I was taken to St George Hospital and then transferred to Westmead Childrens Hospital where I was treated for, a fractured jaw, large cut to my head which required 38 stitches, burns to both upper thighs, and an open pelvis wound and grazing to my left thigh and gravel rash to my chest." Evidence of Sgt Burrows concerning the police investigation 106The defendant called evidence from Sgt Burrows who, as a Leading Senior Constable at the time of the accident, attended the scene shortly after the collision. His investigation of the circumstances surrounding the collision took place under the direction of his traffic supervisor. Neither party tendered the diagrams of the accident scene that Sgt Burrows had made in his notebook. 107Sgt Burrows said that on his arrival, he saw the defendant's small stationary vehicle located approximately 20m into lane 2 of Port Hacking Road. He also noted that in Melrose Avenue, there was also a stationary bus in lane 2 or the median strip lane of that street. 108By the time Sgt Burrows had arrived, the plaintiff had already been freed from under the defendant's vehicle, and was situated on the roadway at the rear of that vehicle. Sgt Burrows said that the circumstances at the scene were quite hectic. He said the defendant was in shock and was traumatised, and he had formed the opinion that she was having trouble processing the events. 109In the course of the police investigation of the accident, an electronic record was created in the form of a computerised COPS report, which was in the following terms: "About 12.45pm Thursday 8.11.07 Vehicle 1 (Pedestrian Nicki EMVALOMAS) was making her way from Sylvania High School to the Southgate Bowling lanes to participate in school sport. At the time she was walking with a group of other students and a teacher from the school, but had fallen behind. At the intersection of Melrose Ave and Port Hacking Road the Pedestrian has run across Melrose Ave from the southern kerb towards the northern kerb. As she did this there was a red "don't walk" pedestrian light facing her. At that time there was a green left turn arrow facing east bound traffic on Melrose Ave. At that time Veh 2 was being driven east on Melrose Ave at a stated speed of 15Km/h, in lane 1. Veh 2 continued east in lane 1 and commenced a left hand turn. As she approached the intersection there were two vehicles stationary in lane 2, a mercedes sedan and a bus which was behind the mercedes. These vehicles obstructed the view of Veh 2 as she approached the intersection. As a result Veh 2 had collided with the pedestrian, knocking her to the roadway. Veh 2 continued for a short distance after colliding with the pedestrian and as a result the majority of Veh 2 passed over the pedestrian. When Veh 2 came to a stop the pedestrian had been dragged about 5 metres along the roadway, passing beneath the centre of the car. As a result of this the pedestrian suffered a large gash to her scalp and severe gravel burns to her legs, hip and abdomen. She was conveyed to St George Hospital where she underwent surgery to the head wound and a number of scans to her body. Those scans showed that she had suffered no other injuries. Following surgery she was transferred to the Surgical ward of the Westmead Childrens Hospital. The Westmead hospital was contacted and the welfare and condition of the pedestrian checked. Her mother, Janelle EMVALOMAS was spoken to and stated that her daughter would not be released from hospital until Tuesday 13.11.07 at the earliest. A statement will be obtained from the pedestrian after that time. No formal police action to be taken as the person at fault, the pedestrian, is a 14 year old child." 110When the plaintiff had been discharged from Westmead Children's Hospital on 13 November 2007, her ongoing disabilities were described as including residual psychological issues pertaining to the accident, and hyper-awareness of the scarring to her scalp. It was later revealed that since the time of discharge, she was having trouble concentrating, and was in need of counselling as a result of her experience. 111On behalf of the plaintiff, through the cross-examination of Sgt Burrows, criticisms were directed at the compilation of, and the content of, the COPS report. In view of those criticisms, it is relevant to examine aspects of the methodology of the police investigation, particularly since the plaintiff and the defendant each sought to resile from aspects of their signed statements that had been recorded by Sgt Burrows. 112Understandably, due to the passage of time and the nature of his work, Sgt Burrows did not have a clear recollection of having taken the plaintiff's statement. However, he recalled talking with the plaintiff in the presence of her mother. He described his general practice at the time in taking statements from young persons such as the plaintiff, in the following terms: "Q. Once that explanation is given to the young person what was your general practice at this time then, what was the next step in the interview process? A. To obviously obtain their age and then from there ask them for a general - their recollection - and then lead them back through the recollection, as they're going, asking them to stop while I write their recollection, and the continue on in that manner. ... Q. Officer, once you start the formal interview, how do you construct the statement that you write in the notebook? A. As close as possible in the words that the person uses. Sometimes it's not possible to write down all of what they're saying - as I said, I ask them to stop and I continue to write. If there's a gap in like recall or from where they are currently at, ask them to continue from where I was up to, and then go from there again. Sometimes with some people there'll be information that they give the second time, it's definitely worded differently or they explain it differently. So I record it as best I can as it's given to me. Q. What I gather from what you've said that you ask a number of questions in your normal practice to direct the witness's attention to the topics you are interested in exploring, and then you write a summary of what's been said, sometimes verbatim or sometimes summarising? A. Yes. When you say summary, as close to the verbatim side of it as possible, but it's not always in their exact words. RYAN Q. When that process is complete, when the witness has given their account, what's the next step in the exercise, sergeant? A. Okay, when I'm finished taking the statement from them, I give them my notebook, get them to read through the entry, asking them to highlight anything that isn't correct or that they wish to change and get them to go through the entire entry in that manner. If there is no changes to be made, I ask them to sign at the bottom of the entry and initial in the margin of each page of the entry and to sign across the jurat sticker at the beginning of the entry. Q. Sergeant, if the witness does seek to make changes, where would those changes be recorded? A. That would depend on what the change was; if it was a word that was incorrect I'd cross out the word and write the amended word above. If it was a, an entire or a portion of the incident that they'd forgotten about, then I would add it at the bottom and get them to indicate where in the passage of the statement that that portion would fit so for example, if it was between paragraphs 5 and 6, I would indicate that in the additional part at the bottom. Q. Okay. And in circumstances where a young person is interviewed in the presence of a parent, are there any additional steps that you take? A. I'd ask the, the parent they are there present while the statement was being made, they've heard the exchange between myself and the person. I'd ask them if they were aware of anything else or had anything to add and yeah, that would be it." 113Sgt Burrows was cross-examined on a number of issues concerning his investigation of the collision. In so far as criticism was directed at the adequacy of the police investigation of the incident, I have already noted that at the time, as a Leading Senior Constable, his input into the investigation was under the direction of his traffic supervisor. It appears from that evidence that he was not in charge of coordinating that investigation. In that regard, Sgt Burrows explained that at the time he was there, the scene was quite hectic, and he was not in charge of obtaining witness details. 114Sgt Burrows agreed that in hindsight, there had been some shortcomings in the police investigation, including the fact that a statement had not been taken from some eyewitnesses who were identifiable as having been at the scene at the time the events in question occurred. This was a reference to Mr Miller and Miss Devine. In that regard, there were a number of police officers at the scene. It appears that no one had told Sgt Burrows that another pedestrian, Miss Devine, had been in the immediate vicinity and had witnessed the accident. Further, it had been assumed that someone had taken a statement from Mr Miller, when in fact this had not occurred. 115Sgt Burrows was shown a statement by Ms Chandler. He indicated that he had not previously been shown that statement and he had not been aware of it. He said if at the relevant time he had known of the existence of that statement, which referred to another pedestrian having been on the road with the plaintiff at the time of the accident, he would have taken steps to ensure that a statement was obtained from that witness. 116The plaintiff suggested to Sgt Burrows that he had started the investigation and the compilation of the COPS report on 8 November 2007 and had effectively closed it off by 10 November 2007, having come to the conclusion that the plaintiff pedestrian was at fault, as was recorded in the last two lines of the COPS report as cited in paragraph [109] above, and that as a result, the structure and content of the plaintiff's statement to the police was influenced by his pre-conceived ideas to that effect. 117The plaintiff urged a construction of the COPS report to the effect that by 10 November 2007, the investigating police had formed the opinion that the incident in question had been due to fault on the part of the plaintiff. This point was understandably raised on behalf of the plaintiff, given the unambiguous terms of the last two lines of the COPS report, which were to that effect. The plaintiff contended that as a result of that argued view, no further action had been taken either in the investigation of the accident, or by the taking of other steps. I infer that to be a reference to the fact that it was intended that no action was to be taken against the defendant. 118Sgt Burrows denied these suggestions and explained that the COPS report had been complied progressively, with the electronic form of the document remaining open on the police computer system until the investigation had been closed. Sgt Burrows stated that the investigation had not been closed off as at 10 November 2007 or thereabouts before the plaintiff's statement had been obtained, although it was conceded that the form of the COPS report could have conveyed that impression. On its face that explanation was not glaringly improbable and the point was not taken up further in the evidence. 119In any event, I consider that I do not need to reach a concluded view on that issue as it is of no direct relevance to the fact-finding task that I must undertake. My task must be undertaken on the available evidence. The only possible relevance of the conclusion on the COPS report urged by the plaintiff concerning the adequacy of the police investigation is that it could explain why further statements, including from Mr Miller and Miss Devine, were not obtained. I do not need to resolve that issue either, as I have heard the evidence of these two witnesses, and it is that evidence which must be assessed according to its content, without speculation as to how the detail of that evidence might perhaps have been formulated differently either in its extent or detail, had there been some earlier and more contemporaneous statements obtained from these witnesses. 120The true significance for the plaintiff, of the criticism directed at the adequacy of the police investigation, concerns the manner in which the plaintiff's statement had been constructed, and the circumstances that may have influenced the process, the content, or any possible omissions from that statement, or any possible inaccuracies within it. 121As to the police investigation itself, the evidence of Sgt Burrows included the following interchange: "Q. The investigation, do you concede was a pretty poor one? A. Looking back on it now, absolutely. I concede that." 122I do not consider that it is necessary for me to examine that proposition any further beyond the terms of the concessions made in that regard as I have to reach my conclusions on the evidence that is available. 123Sgt Burrows agreed that at the time he interviewed the plaintiff for the purpose of compiling her statement, she was still recovering from her injuries. He agreed the narrative in the statement represented a combination of the plaintiff's words and his summary of what she had said to him. His conclusion to that effect based on his usual practice, because he could not now recall the actual questions that he had asked of the plaintiff, nor the sequence of those questions, that had in turn generated the information that he had received in order to compile that statement. 124Sgt Burrows agreed that part of the plaintiff's statement, for example paragraph 5, did not represent the direct words of the plaintiff. He said that at the time he was open to her version of events, and did not have preconceived ideas. 125On behalf of the plaintiff it was suggested to Sgt Burrows that some of the words of the statement attributed to the plaintiff would have been unlikely to have been used by her. He denied the specific suggestion that the plaintiff's statement could have contained an element that consisted of a " police verbal ". He acknowledged his awareness of the existence of a past police culture in some quarters in that regard, but emphatically rejected the notion that it had been his practice to resort to that process as he found it to be repugnant. I considered that his evidence in that regard was sincerely expressed and I accept his denial that he had deliberately constructed a police verbal as was put to him. 126On behalf of the plaintiff, a factual challenge was made to a specific part of the content of her statement to the police as follows: "Q. So whatever is in here in this statement must have been said in some fashion or other, that's the position, is it? A. Yes. Q. What about the statement in paragraph 3, page 2, that she was going to the tenpin bowling centre? A. Yes. Q. Well she didn't tell you that, did she? A. Yes she would have. Q. She was going to the gymnasium, do you know that? A. I think she mentioned that a group of students were going to the gymnasium but she was going to the tenpin bowling centre. Q. Well this document was created and then your usual practice is that the person has the opportunity to see if it's right, correct? A. Just read through it and identify any errors, yes. Q. When it's a 14 year old, as this girl was, do you read it over to them or do they read it themselves or does it just depend? A. It depends. I make an assessment of the person when I'm speaking with them, if it's somebody with possible language barriers then I may get them to read a portion of it to me to make sure that they are able to read and understand English. If it's somebody with another difficulty then I may get them to read portions of it or ask them questions as they're reading. Q. What happened this time, you can't remember in the slightest, can you? A. She didn't have any apparent difficulties. Q. But sergeant you just say that because nobody's crossed out anything on your document. You wouldn't know whether she had any difficulty at all, would you? A. I had spoken to her, she-- Q. Sergeant, you can't remember it, can you. All you're able to say is, "My usual practice is she would read it over and sign it, and I see this one signed". That's all you can say, isn't it? A. What I can say is that if there was problem then there would be additional entry at the bottom of the statement. Q. If you followed your usual practice? A. Yes." 127Sgt Burrows stated that some of his questions may have been leading and some questions may have been open. In addressing the manner of construction of the statement he obtained from the plaintiff, Sgt Burrows gave the following evidence: "Q. Well insofar as it was supplied to you, are you able to differentiate between it being supplied in the form of an assent to a leading question or whether it was a narrative provided by her giving an account in answer to an open question? A. As I said earlier, I spoke(?) in questions. They generally give you an amount of information and then I revisit that so I would or I believe that it was in a narrative supplied by her and not in response to a direct question." 128Sgt Burrows recognised the possibility that, as a police officer, from the plaintiff's perspective, he would have represented an authority figure to her. He acknowledged the possibility that in those circumstances, as a young person, she may not have been " bold enough ", in the presence of a police officer, to point out errors in a statement when it was read over either by her or to her before she signed it. 129Sgt Burrows stated that he had considered this factor but he believed this was not the case. His basis for that opinion was his view that because the plaintiff's mother was present at the time, and because she was at ease in talking with him, and that there was no objection raised by her to anything that had been recorded by him in that statement. Based on the notes in his possession, he said he had no recollection of any discussion with the plaintiff's mother as to the plaintiff's actual state of health. 130Specifically, Sgt Burrows was not aware of difficulty the plaintiff may have had in concentrating. He said he had no indication of any emotional disturbance on the plaintiff's part, and had no independent recollection of her emotional state. He said his practice would have been to cease taking a statement from her if she had been emotionally distressed. He said that at the time, it was not the practice to conduct an electronically recorded interview to take a statement from a minor in such circumstances.

Assessment of the credibility and reliability of testimony 131At the outset of my evaluation of the credibility and reliability of the evidence of the respective witnesses, I record my impression that I considered each witness did their best to give their evidence according to what they believed they had observed in the events in question. In my view, none of the witnesses were shown to have consciously given evidence which was either incorrect or untruthful. 132Accordingly, the analysis of their evidence is concerned with the reliability of that evidence rather than credibility as such. In that context, it is not in dispute, and it must be recognised, that the events of the collision occurred very quickly. In such circumstances, generally, scope arises for witnesses to invoke a process of reconstruction in giving their evidence so that, although the matters that they related in their evidence were described by them, as they had perceived the events to have occurred, this does not necessarily mean that all such reconstructed accounts are likely to in fact be correct. In this case, the evidence had to be assessed with that factor in mind. 133A convenient starting point for an evaluation of the reliability of testimony of the eyewitnesses is to consider the evidence of the independent witnesses, who are not connected with either party, namely, Ms Chandler and Mr Miller. Ms Chandler 134Ms Chandler conceded that her memory of the events of the incident was hazy, not good and poor. That is a relevant consideration that I must take into account when assessing the reliability of her evidence generally, and especially that part of her evidence which was to the effect that the plaintiff was running at the time Ms Chandler saw her crossing the roadway. 135Whilst ordinarily, evidence of that kind does not require corroboration for its acceptance, since Ms Chandler acknowledged that her memory of the events was hazy and not good, and that her memory of the events was much better immediately after the incident and at the time when she gave her statement to the police, I consider that in the absence of the tender of the whole of the content of Ms Chandler's contemporaneous statement, I should exercise considerable caution before accepting Ms Chandler's evidence on the question of whether or not the plaintiff ran as she was crossing the road. 136I consider that such an approach is justified in this instance because Ms Chandler conceded that her use of the qualifying expressions " I believe " and " I think " when giving her evidence was a reflection of the fact that her memory of the events is now poor, as she conceded. 137Ms Chandler acknowledged that at some point the plaintiff hesitated as she crossed the road. In my view that concession is a significant one, and in my view it should preclude a finding that the plaintiff simply ran across the road. This is because in Ms Chandler's evidence, the point on the roadway at which there was said to be some hesitation on the part of the plaintiff in crossing was not identified in relation to any landmark of the journey across the roadway, and especially since Ms Chandler had agreed that her first observation was of both girls walking across the road, followed by running as the car ahead turned left. 138For the foregoing reasons, I take the view that there was considerable room for doubt as to the reliability of the significantly qualified evidence of Ms Chandler on what she believed or thought she saw in the events of the collision. I have concluded that for those reasons Ms Chandler's evidence should not form a basis for displacing the evidence of the plaintiff and Miss Devine concerning whether or not they had run across the road at the time the collision occurred. 139I consider that view is justified by the fact that the complete content of Ms Chandler's more contemporaneous statement to the police had not been tendered and where, given the limited recollections of Ms Chandler at trial, that document could well have served to provide a means of assessing the reliability of Ms Chandler's evidence as a whole. 140In any event Ms Chandler's evidence did not throw any light upon the crucial question of whether or not the defendant had a green left turn arrow, or as to the colour and state of display of the pedestrian lights that faced the plaintiff as she crossed the road. Mr Miller 141In relation to the evidence of Mr Miller, I have already observed that the horrendous events of the accident had a very distressing effect upon him. It was plain that those effects continued to have a significant impact upon him, including on his composure at the trial. I consider that fact, together with what I consider to have been Mr Miller's limited opportunity to make factual observations of the events because of his primary focus on the slowing down manoeuvre he was engaged in as he approached the stationary vehicle in front of his bus, has led Mr Miller to relate an unreliable reconstruction of the events of the accident when recounting his evidence. 142For this reason, I consider that Mr Miller's reconstructed evidence of the events of the accident provides an unsound and unreliable basis for preferring his evidence to the contrary accounts given by the plaintiff and Miss Devine on critical matters. In recording that view I do not intend that these reasons should in any way be read as a personal criticism of Mr Miller, whom I am satisfied did his best to provide an account of events as best he could recall and as he perceived them. 143Nevertheless, I consider that Mr Miller's recall of events has been impaired and distorted by the operation of a combination of factors that have led to him giving a distorted factual account of the events. 144Those factors were the traumatic circumstances he experienced when he went to the assistance of the plaintiff; his subsequent need to cope with those events by trying not to think about them and to put them out of his mind over the years since the accident, and a conflation of events that has resulted from his attempts to bring the events of the accident to mind when giving his evidence. 145In my view this process has led to him providing a distorted and an inaccurate, albeit honestly, reconstructed account of events. I am satisfied that this is so because of the following matters. 146First, in the lead-up to the accident, I consider that Mr Miller would have been primarily concerned with bringing his 12 tonne bus to a halt at a point half a metre behind the stationary vehicle in front of him in Melrose Avenue. That was an action that would most likely have occupied his primary attention in order to avoid placing his bus into collision with the vehicle in front of him because such a small distance of separation of vehicles was an unusual circumstance for stationary traffic, and carried with it a pressing need to ensure that in such circumstances, no collision would occur between the front of the bus and the stationary vehicle in front. In those events I consider that it was unlikely that Mr Miller would have had the opportunity to accurately observe, let alone accurately recall without reconstruction, all of the elements of the events as he sought to do concerning the collision, which at best, must have been peripheral to his attention at the time. 147Secondly, I consider that in his reconstruction of events, Mr Miller has conflated those events. For example, in his approach to the intersection he would have had to have driven past the group of other school girls who had already crossed the intersection and who were some distance ahead of the plaintiff and Miss Devine at the time when his bus came to a halt. He claimed to have seen that group of girls when they were " at the end " of their crossing, namely that the last one of them had completed her crossing when he was bringing his bus to a halt. He stated that he had then remained stationary at the intersection for about 10 seconds at the time the collision occurred, which, on the defendant's case was at a time when that group of girls was already 100m to 200m away from the crossing. It is most unlikely that these girls would have walked that distance in 10 seconds, which casts significant doubt upon the accuracy and reliability of Mr Miller's observations generally and points to a reconstructed and conflated account of events. 148Thirdly, Mr Miller stated that at the time of the accident, he was looking straight ahead: T176. That was probably a correct account because he was waiting at the lights for a break in the traffic in order to make a right turn into Port Hacking Road. In these circumstances, I consider that his evidence in which he described seeing the defendant's vehicle take off from a position to his left, which necessarily meant first that it was either stationary or travelling slowly before gaining speed, and secondly looking to the left of his bus, was an unlikely observation on his part, and probably a reconstructed view, and therefore represents an unreliable account. I doubt that account is a correct description of what Mr Miller would have been able to see as he looked to the front, recognising he was responsible for safely managing a prospective turn of a large vehicle. I consider his attention would have been primarily focussed on that task, and not on the other details which he related in his evidence. 149Fourthly, even after putting aside the question of whether Mr Miller was able to observe the state of the pedestrian traffic control lights despite the presence of a metal cowling structure around those lights, a matter that is difficult to determine on the state of the evidence, it seems to me unlikely that Mr Miller would have been able to see whether those lights were flashing red and then showing solid red at the time the plaintiff was crossing the roadway, given his need to make a right turn when the lights and traffic permitted him to do so. I consider it more likely that he was looking to the front at the lights which controlled his movements in the traffic. 150Fifthly, I consider that Mr Miller's concession to the effect that he was not looking in the direction of the defendant's vehicle at a time when an observation could have been made as to whether it was displaying brake lights, together with his evidence that he had beforehand been looking straight ahead, meant that at best, what Mr Miller would have been able to see was the movement of the defendant's vehicle to his left, which would have caused him to look up to the left and away from the view straight ahead. In those circumstances, I consider that it is improbable that Mr Miller would at that time, also have taken a view of the state of the pedestrian lights to his left and the pedestrians as he watched the defendant's vehicle proceed forward and into the horrifying collision with the plaintiff who was crossing the road at that time. 151Sixthly, the process of reconstruction was plain from variations within Mr Miller's evidence in which he first stated that the plaintiff was probably jogging or running, and then he conceded that she may have been walking. In my view, Mr Miller's use of the expression " probably a jog or a run " indicates that his evidence was a reconstructed account. That view is confirmed by Mr Miller's concession that the plaintiff may have been walking. This suggests that, although he might have been in a position to see the plaintiff, he was not confident of his description of her as jogging or running because it was a reconstructed view rather than an actual observation. 152Seventhly, after giving due consideration to Mr Miller's description of the events that occurred after the collision, I am persuaded that his account of events was an unlikely and conflated reconstructed account, rather than being a simple factual recounting of actual observations made by him at the time. 153I have reached that conclusion on an analysis of Mr Miller's account of events that he described as having occurred after seeing the collision, and after seeing the defendant's vehicle drag the plaintiff several metres. In those events he would have had to, in sequence, ensure that his bus was safely secured into a stationary position with the hand brake on, alight from it, proceed on foot to the position where the collision occurred, place himself in a barrier position in front of the defendant's vehicle as he stated, at a time when the defendant was attempting to continue to drive her vehicle forward, and then yell at her in an attempt to dissuade her from continuing on that course, possibly by banging on her vehicle with his hand or hands. 154I consider that account to be an unlikely and conflated scenario. I consider that to be so given that the defendant's vehicle was observed by the investigating police officer to be some 20m from the intersection. Even after allowing for some movement of the vehicle forward a short distance in order to disengage the plaintiff from underneath it, it seems to me unlikely that Mr Miller would have managed to achieve all of these things in a very short space of time in circumstances where the defendant was still attempting to drive her vehicle forward with the plaintiff still underneath it. 155Instead, I consider that it was more likely that Mr Miller ran to the aid of the plaintiff and held her head and tended to her injuries in the manner he described, and then later tried to piece together what had happened, but in circumstances where his reconstruction was inaccurately coloured by the traumatic circumstances. 156For these reasons, although I consider that Mr Miller did his best to recount the events as he thought he had seen them, his account should not be taken to be fully reliable or accurate. 157The foregoing matters lead me to conclude that because the events happened very quickly, as was acknowledged by Mr Miller, even though he was in a good vantage point to take in the scene, Mr Miller was more concerned with looking straight ahead and waiting for the red light to change to green to permit his line of traffic to turn right. In those circumstances I consider it is unlikely that Mr Miller is correct when he said the plaintiff had crossed contrary to a red pedestrian traffic light. 158I now turn to the evaluation of the reliability of the evidence of the interested parties, and Miss Devine, who, whilst not a party, should be considered as having an interest of loyalty to her friend, the plaintiff. Of course that fact alone should not necessarily cause Miss Devine's evidence to be viewed with suspicion or discounted on account of being affected by partisan interests. I simply mention the loyalty question as a marker to remind myself that I should evaluate her evidence with due care on that account. Miss Devine 159I was impressed by the care with which Miss Devine gave her evidence. I formed the view that I could generally rely upon her evidence for accuracy. In making that observation, I have had due regard to the fact that Miss Devine and the plaintiff were good friends, and that it was possible that either consciously or subconsciously, Miss Devine could have had an opportunity to tailor her evidence in order to assist the plaintiff to secure a beneficial outcome in the litigation. 160However, I discounted that factor because it was not seriously suggested on behalf of the defendant that this was so, and I saw no indication of that factor when I observed and read her evidence as a whole, and weighed it alongside all of the other evidence. There was no suggestion or indication that she had tailored her evidence in order to assist her friend, the plaintiff. There was nothing within her evidence that seemed to me to be incredible or glaringly improbable. 161Furthermore, I considered that where appropriate, Miss Devine made appropriate concessions when cross-examined, which indicated that she was not seeking to advocate a particular result favourable to the plaintiff. I believe that her evidence was balanced, careful, non-partisan, and I consider that I could confidently place reliance upon that evidence as being an accurate account of the events leading up to and surrounding the accident, especially on matters upon which the defendant's evidence was silent. 162Although it was arguable that Miss Devine could be partisan to the plaintiff's interests, it could equally be argued that she was also well placed to make observations on relevant matters because, at the time, like the plaintiff, she had an interest in safely crossing the road without incident or injury. Absent any suggestions of a lack of actual recollection, reconstruction or false testimony on her part, I saw no reason for not accepting Miss Devine's account of the events as being truthful, subject to a consideration of the other evidence as a whole in order to determine whether good reason existed for not accepting her evidence. 163The crucial elements within Miss Devine's evidence were that she (and therefore the plaintiff, since they were holding hands at the time) had commenced their crossing of Melrose Avenue at a time when there was a green " Walk " sign in their favour; she (and therefore the plaintiff) were within the confines of the marked pedestrian crossing, and had almost completed their crossing when the plaintiff was struck; the defendant's vehicle came from the left making a screeching noise and accelerating to the point of the collision; the defendant's vehicle continued to move until Miss Devine managed to get her to stop by attracting her attention by banging on the vehicle; and when the defendant emerged from her vehicle in a state of upset and gave an explanation that she thought that her vehicle had run over a box on the roadway. 164In the final analysis, those elements must be aligned with the defendant's account of the events in order to determine which account should be preferred as being more probably correct. At this stage of the analysis, it is sufficient to state that on the face of Miss Devine's evidence, there were no obvious matters that arose within her evidence that raised doubts as to the correctness or the reliability of her evidence, apart from the usual matters of analytical caution, to which I will refer in due course when I come to state my findings on the liability issues. 165Although the evidence tendered did not include any prior statement from Miss Devine in the form of a contemporaneous statement taken by investigating police, as there was no such statement, a matter that attracted criticisms by the defendant in final submissions, I did not consider that the absence of such a statement was a circumstance that should necessarily detract from the reliability of her evidence, which was the tenor of the contrasting view I took in relation to the reliability of the evidence of Ms Chandler because of Ms Chandler's concessions as to her poor memory of the matters in question. 166I took that view because, unlike the position disclosed within the evidence of Ms Chandler, there were no reasons inherent within Miss Devine's evidence concerning her recall of events that relevantly qualified her recollection, or caused me to doubt the accuracy of her memory of the events as she related them. As such, questions of a possible need for corroboration of her testimony therefore did not arise. The plaintiff 167The plaintiff gave significant portions of her evidence whilst she was in a state of obvious upset. Despite this, she managed to appropriately respond to questions, and gave consistent answers during cross-examination. I considered that her evidence appeared to be limited to relatively short answers due to the apparent welling of emotions within her in reaction to having to relate matters that were clearly upsetting to her. I considered that she gave her evidence truthfully, in a spontaneous, genuine, unrehearsed and restrained manner. 168This was particularly evident on the issue of her observation as to the state of display of the flashing " Dont Walk " sign on the pedestrian control lights during the course of her crossing of the roadway. If she was minded to tailor her evidence, she could have easily and conveniently claimed an earlier recollection of a different kind, such as a green light consistent with Miss Devine's observations, which would have undoubtedly tended to advantage her case. I consider that the fact that she did not seek to do that must weigh heavily as a factor in her favour when weighing the credibility and reliability of her testimony. I did not discern any guile within the evidence of the plaintiff. 169Furthermore, I consider that she did not seek to exaggerate the significant deleterious physical and psychological effects that her injuries have had upon her life concerning her day-to-day wellbeing, and her plans for the future. In the circumstances, I felt comfortably able to rely upon the plaintiff's testimony as a whole. If anything turned on the plaintiff's demeanour, I thought her evidence on the effects of the accident upon her, was understated. 170A discrete issue emerged from the plaintiff's evidence as to the circumstances of her statement to the police on the question of whether, when that statement was written, she actually said that she had crossed the roadway contrary to the direction of a red pedestrian light at the intersection, notwithstanding that the statement in question had been signed by her in the presence of her mother and the police officer. 171In assessing the truthfulness and reliability of her evidence to the effect that she had not told the police officer she had crossed contrary to a red light, and had not detected or corrected this error when she had signed the statement in the police notebook, I have had regard to and have accepted her evidence concerning the circumstances of the questions that were asked of her at the police station. These followed closely together, and which could well have led to a misunderstanding in the police summary of what she was saying. I consider that this is what most likely occurred. In assessing the credibility and reliability of the plaintiff's evidence on this point. I have also had regard to the unchallenged medical and allied evidence and the factual histories upon which that evidence was founded. 172I also observe that the plaintiff's evidence as to the material inaccuracy of the summary or statement in the police notebook is supported by other inaccuracies in that summary. For example, paragraph 3, refers to the plaintiff and Miss Devine walking to the tenpin bowling centre for afternoon sport. That was an obviously incorrect factual matter which the plaintiff was unlikely to have said, given the evidence of the plaintiff at T67.10 which leads me to infer this was an incorrect detail Sgt Burrows had assumed. This has also led me to doubt the accuracy of the statement in the police notebook as I considered that it was most unlikely that the plaintiff would have made the erroneous statement that has been incorporated into her statement, as was summarised by Sgt Burrows. 173In assessing the evidentiary importance of the plaintiff's statement I have to bear in mind that Sgt Burrows explained that the statement was constructed as a combination of the plaintiff's words and his summary of them, including asking her leading questions. Sgt Burrows was unable to identify which portions of the plaintiff's narrative were recorded in response to either leading or open questions. 174It appears from the evidence of Sgt Burrows that at the time the plaintiff signed the statement prepared by him, she had read it over to herself rather than having it read to her by him. In this regard, Sgt Burrows stated that at the time he was not aware of any apparent difficulties the plaintiff may have had, for example, with concentration, or with emotional distress. He had no independent recollection of such matters. He was unaware at the time he gave his evidence as to whether there had been any discussion with the plaintiff's mother on the subject of the plaintiff's health or ability to concentrate. 175It is quite apparent from reading the plaintiff's police statement that the content was partly factual and partly analytical. I consider that the analysis portions would most probably have come from Sgt Burrows. For example, the expression " As I crossed the westbound lanes I was looking at the traffic for eastbound lanes in Melrose Avenue ". I find it extremely unlikely that the plaintiff have contributed the content of the expressions " westbound " and " eastbound " lanes. I consider this was as a result of Sgt Burrows' analysis, and constituted a summary of what he had understood the plaintiff to have been conveying. If the document had been written by the plaintiff, a different conclusion would arise. In fact Sgt Burrows acknowledged that there were several inclusions in the statement concerning various concepts that did not involve the plaintiff's actual words, but were instead a summary. 176The circumstances of the plaintiff making that statement were that her mother had determined that she wanted the matter of the outstanding statement over and done with, and the plaintiff's mother chose the timing to go to the police station for the statement to be made. That is a matter of some significance because at that time, as the medical evidence confirms, the plaintiff was still affected by concentration and related problems. 177In those circumstances, I find that these matters were more probably than not impacting upon the plaintiff at the time she gave her statement to the police. She stated that when she spoke to the police when giving her statement she was not in a very good emotional state. Although she did not seek to overly retreat to such an explanation based on those kinds of impairments, I consider that such factors cannot be ignored when assessing the likely truth of her explanation of not having read the police statement before signing it. The plaintiff stated that she could not recall signing some of the things that Sgt Burrows had written in the statement. In this regard, I saw no sound reason to doubt her evidence to that effect. 178In this context, the consequences of the plaintiff's acknowledged signature and initials on the statement in the police notebook does not necessarily require the same conclusion as for example, a contract case, where absent special circumstances being shown, a signature in a contractual document would ordinarily be held to be binding on the signing party: Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165, at [42] - [45], and similar cases. 179Accordingly, I consider that the plaintiff is not necessarily bound to a factual account by her signature in this instance, and the consideration of the surrounding circumstances are also relevant to an evaluation of the issue of the likely accuracy of the recorded summary or statement within the police notebook, notwithstanding that it was signed by her as being apparently correct at the time. Mrs Farrelly 180A further factor to be weighed in determining the truthfulness of the plaintiff's evidence on the matter of the reliability of the content of the plaintiff's statement to the police is the evidence of the plaintiff's mother. In my view there was nothing that emerged from the evidence of Mrs Farrelly that led me to doubt the plaintiff's version on the circumstances in which the plaintiff signed the statement in her presence. 181Insofar as Mrs Farrelly said that she was present but not paying much attention to the interview at the time, and whilst such a position was perhaps unusual in circumstances where a parent accompanied a minor to a police station for the purposes of a police interview, I did not consider the account of those events as related by Mrs Farrelly to be inherently improbable so as to require a rejection of that explanation. 182This is so because the plaintiff was not present at the police station under duress, or a suspicion of lawbreaking, or as a person of interest for the purposes of possible charges that may have attracted the sanctions of the criminal law. In those circumstances, I accept that both the plaintiff and her mother could well have understood, as was claimed, that their presence at the police station for the purposes of the interview was regarded by them as being something of a formal requirement in order to close-off the police investigation file on the matter. This is consistent with the evidence of Mrs Farrelly which was to the effect that she simply wanted to get the outstanding interview out of the way, which was a matter that was clearly in the best interests of her daughter, and understandable in the circumstances. 183Mrs Farrelly stated that in the initial few weeks after the injury, the plaintiff's emotional state was up and down. She assumed this was because of the painkilling medication she was taking. In her evidence in chief, Mrs Farrelly stated that at the time the plaintiff attended the police station to give her statement the plaintiff's situation was as follows: "Q. Can you tell me in what physical state she was when she attended there? A. Her wounds were still healing, it was six weeks for the stitches in her head to come out, which is just, which is normal time for stitches. She, we had her on a lot of medication, lots of Panadol, she was on small doses of OxyContin as well, for pain. Q. What was her emotional state like? A. She was a basket case. Q. And you? A. Just trying to hold it altogether for her." 184As to the actual events of the interview, Mrs Farrelly was not able to throw much light upon them. Her evidence in chief on that matter was in the following terms: "Q. So, you do remember that there was an interview at the police station with a policeman? A. Yes. Q. What, if anything, do you now remember about what was said? A. Unfortunately not a great deal, I'm sorry. Q. What, if anything, do you now remember about what was done, and I'm particularly interested in a showing or reading of a notebook? A. Yet again, I really can't say. I, I just simply don't remember." 185In cross-examination, Mrs Farrelly's evidence on matters concerning the police interview was as follows: "Q. I want to ask you some questions about the interview with the police on 5 December 2007. If you remember, how did that interview come about, why did you go down to the police station? A. Well because we were asked to do the interview, I knew that at some stage Nicki had to do the statement. Constable Burrows suggested to us that - he rang me whilst she was in hospital and he suggested that we come, you know, a few weeks after, "Let her calm down and, you know, deal with some of her injuries before you come in and do your statement. Okay then". So I rang - did ring? I don't remember who rang who but I went to the police station with Nicki and we did the statement. Q. So it was at a time of your choosing, as it were, you chose when to go down to the station when you thought she was well enough? A. I wanted to get it done as quick as I could so that way it was out of the way and everything was fresh. Q. But you waited some weeks after she was released from hospital, didn't you? A. Yes. Q. Because in the early stages she would have been in no condition to give a version of the events immediately following her release from hospital? A. Yes. Q. So you went down there one late afternoon with Nicki-Lea to the police station? A. Yes. Q. Do you remember sitting in a room with she and Constable Burrows? A. Yes. Q. Do you remember the officer asking her questions? A. Yes, I wasn't paying a lot of attention to them. Q. Why not? A. I didn't - I just wasn't. Q. But you knew this was an important event, didn't you? A. Yes. Q. It was important to find out how the accident occurred, wasn't it? LIDDEN: I object to that, important to who? RYAN Q. It was important to you personally, wasn't it? A. I'd already know what happened in the accident, so being a month afterwards I was more in a frame of mind of we were going through dressing changes every two days, I worked as much as I possibly could to keep the funds coming into the house. Q. You'd discussed with your daughter what happened in the accident before you went to the police, didn't you? A. She told me what happened, yes. Well she remembers it all. Q. You heard her telling the police officer what happened in the accident, didn't you? A. Well, yeah, I was sitting next to her I could hear her talking, I knew he was talking but I really can't say I was paying too much attention what was actually verbally said. Q. Did you hear anything in that interview that differed from your understanding of how the accident happened? A. I really can't say. I can't say if I heard anything different. What she tells me has been consistent right through with everybody. Q. Consistent right through including consistent with what you heard on the day the police interviewed her? A. Yeah. ... Q. Did the police ask her to go round for an interview? A. Yes. Q. All right. Was that done through you? A. Yes. Q. Did the police say to you, words to the effect, "When you think she is ready, bring her down"? A. Yes. Q. When was that request made of you by the police in relation to the accident, was it at a time when Nicki was in hospital? A. Yes. Q. Okay. And then so you waited until such time you thought she was in a position to give an account of the accident? A. Yes. Q. Now when the interview concluded did you see the officer's notebook? A. Yes. Q. Did you read what was written in there? A. No. Q. Did you see your daughter sign it? A. No, I can't say that I did. Q. But you were present in the room for the whole of the interview, weren't you? A. Yes. Q. There was no stage of this process when the officer was alone with your daughter, was there? A. No. Q. And at all times you heard the exchange that took place between the officer and your daughter? A. I knew that they were talking, I don't know what they were saying, I really was not paying it any attention. Q. Yes. So if I were to put to you matters that were in the statement, are you in a position to say whether that's what you heard on the day? A. No. Q. No. All right. Moving on to a different topic now, Ms Farrelly, or before I do, have you seen your daughter's statement to the police? A. No. Q. Never? A. I've not seen it, no. I've not personally read it, no." 186I considered that Mrs Farrelly's evidence on the issues relating to her recollection of the circumstances surrounding the taking of the police statement was sincere and truthful. Although I recognise that as the plaintiff's mother, she might have had the opportunity to tailor her evidence to favour the plaintiff's case, I saw no indication of this, and the defendant did not suggest that this was so on any material issue. I consider that Mrs Farrelly gave reliable evidence in respect of all of the matters that were canvassed in her evidence on the issues of both the circumstances in which the police statement was obtained from the plaintiff, and on the damages issues. Miss Farrelly 187I consider that the plaintiff's sister, Sarah Farrelly, also gave truthful and reliable evidence. Her evidence concerned the damages issues, and it is therefore not necessary to refer to the detail of her evidence for the purpose of stating my credit findings. In considering the reliability of Miss Farrelly's evidence I also had regard to the fact that she is the plaintiff's sister and could possibly have tailored her evidence to favour the plaintiff's case. I discounted this as a possibility as I considered that there was no evidence for that view. Miss Farrelly's evidence was expressed in moderate, unembellished and matter-of-fact terms without any hint of it being tainted by partisanship. The defendant did not seek to impugn the evidence of Ms Farrelly on any matter of significance. The defendant, Mrs Bradley 188On behalf of the plaintiff, substantive challenges were made to the credibility and reliability of the evidence of the defendant, Mrs Bradley. 189Having considered those challenges, and having reviewed the evidence of Mrs Bradley, I formed the view that she gave confused and unreliable evidence. 190I considered that although Mrs Bradley was significantly stressed, and at times upset when giving her evidence on the events in question, her evidence was nevertheless unreliable. 191This led me to the view that I should prefer the accounts given by the plaintiff and Miss Devine as related in their evidence, where that evidence conflicted with the evidence given by the defendant. In reaching that view, I could not ignore some aspects of Mrs Bradley's demeanour at the time she gave evidence. Whilst it is undesirable and impermissible to make credibility based findings based only on demeanour, as was pointed out to counsel during addresses, demeanour is not an entirely irrelevant consideration in the appropriate case. 192My reasons for assessing the evidence of the defendant to be unreliable are as follows. 193First , I considered that when her evidence is read as a whole, the defendant had only a limited opportunity to see and to take in the events of the collision as she was looking to a vehicle she saw on her right, which she thought was a large four-wheel drive vehicle, as she was turning left. I considered that in those circumstances, her opportunity to see what was going on at the pedestrian crossing in front of her on her approach to the intersection was extremely limited. I therefore considered that her evidence of the events was based on unreliable reconstruction. 194Secondly , I consider this view is supported by the fact that she had not seen the plaintiff or Miss Devine at all at any time before the collision. In my view, this supports the analysis that she must have been looking away from the front of her vehicle at the time of the impact with the plaintiff, and probably to her right, as she stated, even putting to one side the correctness or otherwise of her evidence that there was a four-wheel drive vehicle to her right. 195Thirdly , accepting as I do that the defendant had looked to her right as she approached the crossing, I consider that her observations were fleeting, and therefore less likely to be accurate than those of Miss Devine and the plaintiff. 196Fourthly , no other witnesses identified the presence of the four-wheel drive vehicle reportedly seen by the defendant. That was a further matter that caused me to entertain doubt about the accuracy of her evidence. Evidence in support of this view is that she said that she saw a four-wheel drive vehicle and not the bus, to her right, contrary to the evidence of the other witnesses, particularly Mr Miller, who was more likely to be correct on that point as it was his bus that had been approaching the vehicle in front, which he said was not a four-wheel drive vehicle. Given that Mr Miller was approaching the vehicle in front at a close distance, stopping his 12 tonne bus at a point about half a metre or so behind that vehicle, I consider that he had every good reason to be looking ahead to the vehicle in front of him, and I therefore consider his evidence, that there was no four-wheel drive vehicle ahead, is to be preferred as accurate compared to the contrary evidence of the defendant, whose evidence I find to have been unreliable in this regard. 197Fifthly , the defendant acknowledged that in the events of the collision she had " sort of panicked ". She had undoubtedly been traumatised and badly affected by what she had seen of the fact and extent of the plaintiff's injuries at the scene, as was observed by Sgt Bradley. I consider that those undoubtedly shocking circumstances have had an adverse impact on her ability to accurately recall events. In this regard, it is well understood that such events can distort perceptions and affect the accuracy of recalled events. This is a matter of common knowledge of retained memory and is not a matter requiring expert evidence. 198Sixthly , given that the defendant's vehicle had struck the plaintiff on the pedestrian crossing, and given that the defendant had not seen this occur, and that such circumstances would naturally give rise to at least a suspicion of fault on the part of the defendant as to her driving at the time, I nevertheless consider that the defendant adopted a naturally defensive stance when giving her evidence. However, in doing so, I consider that she unreasonably went further and sought to justify her position by reference to a matter for which she had no direct knowledge. In that regard, she invoked an explanation that it was the plaintiff who had run across the road. This account was given in circumstances where she had no first hand knowledge of that putative or asserted fact, and she could not justify that assertion based on her own observations. In my view, this tends to indicate that her evidence was based on a reconstruction for which she had no direct knowledge or proper foundation, other than unreliable hearsay. 199Seventhly , I had reservations about the defendant's evidence, not because of the manner of some of her answers, which were at times combative, which was perhaps understandable because she felt under attack from the cross-examiner over her driving on the day in question, but rather, because she persistently gave unresponsive answers in cross-examination, despite repeatedly having her attention drawn to the necessity of addressing the questions put to her. Her repeatedly unresponsive answers, and the guarded nature of her answers, and her unwillingness to make appropriate concessions in cross-examination, were factors that led me to doubt the reliability of her evidence. 200An example of this was when she was questioned about whether her description of her left turn manoeuvre was based on an actual recollection or what she " would have " done at the time, she persistently avoided giving a direct answer to the question: T135.30 - T136.34; T136.46 - T137.20. 201Eighthly , for the reasons that follow, uncertainty arose from within the evidence of the defendant as to the accuracy or reliability of her evidence generally because of matters she referred to in her evidence as having occurred after the accident. 202Understandably, shortly after the accident the defendant committed her account of events into the form of written notes. In such circumstances, it could ordinarily be assumed, subject to considerations concerning possible reconstruction, that such contemporaneous notes were more likely to represent a more accurate and considered account of the relevant events than an unrefreshed memory drawn upon some 4 years after the event. 203In this regard, surprisingly, the defendant said that when she had made two separate statements to her CTP insurer, the first dated 17 April 2008 and the second dated 17 August 2009, she did not refer to those earlier notes she had made as a basis for making her subsequent statements. Also, in her evidence she said she felt it wiser to stick to her statements when giving evidence when questioned about the possibility of having relied upon those contemporaneous notes. 204That evidence therefore left me with some considerable unease as to whether her evidence was in fact at all accurate as it gave rise to a suggestion that there may have been some material difference between her more contemporaneous notes and those later statements she gave to the insurer. That view arose because of her use of the expressions that she decided she would " stay with " and felt " wiser sticking to " those statements to the CTP insurer, thus implying a possible conflict between the contemporaneous notes and her statements. That question which arose from her evidence could not be resolved because those statements could not be evaluated to allay any such unease. In my view, the defendant's use of the word " wiser " in this context implied that there could well be some variation between the content of her 2008/2009 statements and her earlier notes. 205Ninthly , accepting as I do that in the events following the collision, Miss Devine had thumped or banged upon the defendant's vehicle in order to get her to stop, I consider that the defendant's inability to recall such an event, perhaps due to the shock of the surrounding events, nevertheless leads me to consider that she has an imperfect and unreliable recollection of the events as a whole, at least compared to that of Miss Devine. 206As a consequence of the foregoing matters I considered the defendant to be an unreliable witness in connection with her account of the events of the accident. As a result I consider that I should generally prefer the accounts given by the plaintiff and Miss Devine in my analysis of the relevant sequence of events surrounding the cause of the accident. Sgt Burrows 207Despite the attack made by senior counsel for the plaintiff on Sgt Burrows in cross-examination, which included invoking the mechanism of a " police verbal " or the incorporation of some fabricated content of the plaintiff's statement to explain the challenged content of the plaintiff's statement recorded in the police notebook, I consider that Sgt Burrows gave truthful evidence to the best of his recollection, and I accept his denial in which he stated that it was not his practice to resort to " verbal " the plaintiff and that he had not done so as was suggested. 208That said, I consider that the evidence of Sgt Burrows, as to his recall of the circumstances in which he took the statement in question from the plaintiff, was given with the understandable limitations imposed by the effluxion of time, which meant his evidence of those surrounding circumstances must have been based largely on his practice at the time. 209Understandably, Sgt Burrows could not recall being aware of any impairment of concentration or emotional distress on the part of the plaintiff when the statement was taken. At that time, the plaintiff would still have had a shaved scalp with limited regrowing stubbled hair as a variant of what is shown in the photographs comprising Exhibit "D". It is also possible that she could have at least worn a bandana or a similar covering on her head to conceal the sight of her previously shaved head, as occurred when she later resumed her schooling. I infer this from the plaintiff's evidence, and the photographs of her shaved scalp and her evidence, which indicated that this state caused her embarrassment.

Conclusions concerning the facts of the accident 210Towards the end of his cross-examination of the plaintiff, in accordance with his obligation to do so, counsel for the defendant sequentially put to the plaintiff a series of propositions upon which the defence case was based. 211These propositions were: first, when the plaintiff began to cross the intersection, the pedestrian signal was red against her; secondly, the defendant was turning with a green turning arrow in her favour, thirdly, at the time she was struck by the defendant's vehicle, it was not revving loudly; and fourthly, that a tyre on the defendant's vehicle had not run over her head or her face, as she had claimed. 212The plaintiff rejected each of those propositions as being factually incorrect. In the paragraphs that follow, I record my findings on those positions, and the other propositions upon which the defendant's case was based. I shall review them in sequence as follows.

Whether the pedestrian traffic light was displaying a red signal 213As to the first of those propositions, I have concluded on the balance of probabilities that the plaintiff did not cross contrary to a red pedestrian traffic control signal. In this regard, I accept the evidence of Miss Devine that as she and the plaintiff left the kerb to make their crossing they did so whilst the green pedestrian " Walk " signal was being displayed in their favour.

Whether the plaintiff ran across the road 214I also accept that during the time the plaintiff and Miss Devine were crossing, they were holding hands until the plaintiff was struck by the defendant's vehicle. I also accept that Miss Devine was walking slightly ahead of the plaintiff, and that they were holding hands as they proceeded across the road. 215In reaching those conclusions, I have preferred the evidence of Miss Devine and the plaintiff to the evidence of Mr Miller and Ms Chandler which contained the suggestion that the plaintiff had run across the road. I consider that the evidence of Ms Chandler was unreliably based upon unproven assumptions, and the evidence of Mr Miller was based upon an unreliable reconstruction and not borne out by evidence. 216In that regard, there was no reliable evidence that persuaded me that the plaintiff was running across the road at any time. 217The evidence in favour of the version that the plaintiff was running was somewhat equivocal. An examination of the evidence of Ms Chandler revealed that her evidence to the effect that the plaintiff had run across the road was based on an assumption that remained unproven. An examination of the evidence of Mr Miller reveals that although initially he was uncertain as to whether the plaintiff had run or jogged across the road, ultimately he conceded the plaintiff may have been walking at an increased speed. In my view the evidence of Mr Miller does not provide a sound or a satisfactory basis for the finding sought by the defendant that the plaintiff had run across the road. I find myself unable to accept Mr Miller's account of events, especially on the question of the state of the pedestrian lights and whether or not the plaintiff had been running across the road. 218I am satisfied that the plaintiff and Miss Devine had walked across the intersection at Melrose Avenue in an unremarkable fashion, at least to the point of the median strip or slightly beyond that point, past the stationary vehicles facing east in Melrose Avenue and waiting to turn right. At that stage, I accept that the plaintiff looked to her left and saw nothing but a line of parked vehicles in the kerbside lane of Melrose Ave. 219I find that the plaintiff then proceeded to continue in order to complete her crossing, together with Miss Devine slightly ahead of her, to a point where the plaintiff was in the kerbside lane and had almost completed her crossing. At that point, which was a very short distance away from the northern kerb of Melrose Avenue, Miss Devine had completed her crossing when the plaintiff was struck by the defendant's vehicle whilst it was in the course of making a north-eastern or left turn from Melrose Avenue into Port Hacking Road.

Whether the defendant was turning with a green turning arrow in her favour 220For the reasons I have outlined in rejecting the reliability of the evidence of the defendant, and consistent with those reasons, which have led me to prefer the evidence of Miss Devine and the plaintiff to the evidence of the defendant, I have found that the plaintiff commenced her crossing with a green " Walk " signal in her favour. I have also found that in the course of the plaintiff crossing the road, the signal which faced the plaintiff had changed from a green " Walk " display to a flashing " Don't Walk " signal, and that signal had not changed to display a solid red " Don't Walk " signal at any stage during the plaintiff's crossing before she was struck by the vehicle being driven by the defendant. 221I reached those findings on an acceptance of the evidence of the plaintiff and Miss Devine and a rejection of the evidence of Mr Miller. It follows that I do not accept the evidence of the defendant in which she claimed she had turned the corner with a green turning arrow displayed in her favour. In my view the defendant's evidence to the contrary cannot be relied upon as a correct factual account, for the reasons I have outlined in my assessment of the reliability of her evidence. 222It necessarily follows, including from a common understanding of how pedestrian traffic signals are phased to fulfil their purpose, as was common ground, if before the plaintiff was struck by the defendant's vehicle, and whilst she was still crossing the road, there was no solid red " Dont Walk " signal facing the plaintiff, and at best the signal was flashing a red " Don't Walk " signal as the defendant approached and struck the plaintiff with her vehicle, it is highly improbable that the defendant could have had a green left turn arrow signal facing her at any time before the collision occurred, and I so find. Her evidence to that effect was contrary to that of the plaintiff and Miss Devine whose evidence I have preferred for the reasons I have earlier identified. In any event even if it were accepted that the defendant had the benefit of a green arrow at the time, the fact that the plaintiff and Miss Devine had almost but not yet completed their crossing, necessarily required that the defendant remain stationary and not enter the pedestrian crossing with her vehicle until their crossing had been completed.

Whether the defendant's vehicle was revving loudly 223The question of whether the defendant's vehicle was revving loudly was disputed. The plaintiff asserted this was so and the defendant denied that this was the case. Ultimately, notwithstanding that dispute, I consider that nothing of significance turns on this area of dispute. 224This is because the sound of a revving engine, which suggests acceleration or motive power, is consistent with the defendant having driven into the intersection in order to turn the corner. It is unlikely the vehicle would have coasted into the intersection without motive power at the time, a successful turn would have necessarily required acceleration. The defendant did not assert she was not using the accelerator when turning into the corner and it is reasonable to infer that she did so. 225The plaintiff did not see the defendant's vehicle approach, probably because when she had looked to her left when crossing, the defendant had not yet changed lanes from behind the bus and into the kerbside lane of Melrose Avenue. However, the plaintiff and Miss Devine would very likely have heard the sound of the approaching accelerating vehicle just before it struck the plaintiff. In those circumstances, especially with the knowledge that she had been horrifically injured, it would be reasonable for the plaintiff, and for the witness Miss Devine for that matter, to perceive in a magnified sense, that the vehicle was accelerating. 226Insofar as the plaintiff also heard the defendant's vehicle screeching, it is possible that this observation could be explained by a number of factors to do with the road surface, the tyres on the vehicle, the speed of the turning manoeuvre, or the braking of the vehicle, or a combination of these factors, if not others as well. Screeching could also be an indication of turning at speed. 227These considerations involve a degree of unwarranted conjecture because on the evidence as a whole, there is no good reason to doubt that the estimated speed of the defendant's vehicle, which has been variously identified as being between 2kph and 15kph, having regard to the evidence of Mr Miller and the police notebook. I therefore do not consider that the observation that the vehicle seemed to be screeching or accelerating violently in the perception of witnesses is a material factor to consider in determining liability in this case, particularly where the defendant's vehicle stopped a relatively short distance after Miss Devine had banged on the vehicle. If the defendant's vehicle had been turning at great speed, it is unlikely that Miss Devine would have been able to reach it and cause the defendant to stop the vehicle, as I accept she in fact did. Further, it would have been unlikely that the defendant would have been able to stop her vehicle within 20m at the position observed by Sgt Burrows.

Whether the plaintiff's head or face had been run over by defendant's tyre 228The defendant called no factual or expert evidence to suggest that the tyre of the defendant's vehicle had not run over the plaintiff's head and face. In the context of the accident generally, the unchallenged evidence of the plaintiff was that she had a tyre mark on her back. This is in the context that she was tumbling on the road whilst she was under the vehicle. 229On this topic, I did not see any inherent or glaring improbability in the plaintiff's evidence that a tyre had run over her head. She said, plausibly, that she did not lose consciousness and was aware of tumbling and of being run over as claimed. She certainly sustained a serious injury to her head and scalp. In the circumstances, I consider it unnecessary if not impermissible to speculate upon possible alternative mechanisms of injury to the plaintiff's head and scalp where the one proffered by the plaintiff was entirely plausible, not inherently improbable, and not contradicted by means other than unsubstantiated suggestion. 230I see no basis from within the evidence to accept the defendant's asserted proposition that the plaintiff's head and face had not been run over by a tyre on the vehicle driven by the defendant.

Police statement 231The medical evidence to which I will later refer when analysing damages issues, and the evidence of the plaintiff's mother, leads me to the view that it was more likely than not that the plaintiff would have been in an upset state to some degree when she was going over the facts of the collision at the time she gave her statement to then LSC Burrows. 232That is consistent with her evidence that she found it distressing to talk about the accident. I also infer from the medical evidence, the evidence of the plaintiff and the evidence of the plaintiff's mother that the plaintiff experienced concentration problems following the accident. Whilst these were first recorded in the Westmead Paediatric Brain Injury Unit notes at a later time, I consider it reasonable to infer that this problem also existed at the time the plaintiff was interviewed by Sgt Burrows. I consider it is very unlikely that the plaintiff's concentration problem simply emerged at a later time, especially since Mrs Farrelly reportedly became concerned about it well before the problem was the subject of discussion at the later medical review at Westmead Paediatric Brain Injury Unit. 233This leads me to prefer the evidence of the plaintiff and her mother, based on facts and circumstances, compared to the evidence of Sgt Burrows on this point, as he had no relevant recollection of the events, or the condition of the plaintiff, and because the evidence of the plaintiff that I have ultimately preferred on this point was not otherwise unlikely or glaringly improbable.

Hearsay accounts in medical reports 234In assessing the evidence generally I have noted that some of the medical reports have contained hearsay references to some of the circumstances of the accident. This included for example, references to the plaintiff having crossed against the direction of a red light, the defendant having driven through an amber light, the defendant having driven at 70kph. 235I have disregarded those references in my consideration of the liability issues, first, because the references in the historical summary sections of the reports were not specifically explored as alleged admissions, and secondly, because the reports in question were not prepared from the perspective of a liability investigation, and the statements are unsourced. In those circumstances, it would be procedurally unfair to place reliance on such statements as admissions, or reliable evidence of the liability facts: Mason v Demasi [2009] NSWCA 227.

Negligence and causation 236On the facts as I have found them, I am satisfied that in the events of the accident, the defendant was negligent. My reasons for that conclusion are as follows. 237First, in my view, irrespective of the state of the traffic lights at the intersection, the failure of the defendant to see the plaintiff, or Miss Devine for that matter, who was proceeding ahead of the plaintiff, before the bonnet of the vehicle struck the plaintiff, is inconsistent with having kept a proper lookout whilst driving. This is so especially since the duty of a driver is to ensure that simultaneous attention and consideration is given to the road conditions and circumstances ahead of the vehicle being driven: Manly v Alexander [2005] HCA 79, at [11]. 238Secondly, in my view, also irrespective of the state of the traffic lights at the intersection, the actions of the defendant in looking to the stationary vehicle to her right, irrespective of whether it was a sedan or a four-wheel drive vehicle, and thereby causing her to look away from her direction of travel whilst turning into Port Hacking Road, especially in circumstances where that vehicle posed no threat of collision with her own vehicle, is a further indication of a failure to keep a proper lookout. 239Thirdly, and again irrespective of the state of the traffic lights at the intersection, in moving off from a stationary position in Melrose Avenue to turn into Port Hacking Road, in which the defendant " took off " to use Mr Miller's description, the defendant failed to observe that there were two pedestrians who had not completed their crossing of Melrose Ave. By moving her vehicle forward to turn into Port Hacking Road, in those circumstances, the defendant had either insufficient or no regard for the presence of pedestrians who were entitled to complete their crossing before she moved forward and into a collision course with them, whatever the state of the pedestrian and traffic lights. 240Fourthly, I am satisfied that it was more probable than not that the defendant drove her vehicle contrary to the direction of a red traffic control light which was displayed red for her direction of travel, as was correctly recorded by Sgt Burrows in the statement that she had provided to him on the day of the accident. I am satisfied that the signal facing the defendant was more probable than not displaying a red signal and a red arrow because the plaintiff and Miss Devine were lawfully proceeding to complete their crossing of Melrose Avenue which had commenced with a green " Walk " signal and which had only changed to a flashing " Dont Walk " signal, and not a solid " Dont Walk " signal. 241It was a breach of duty of care towards the pedestrians crossing Melrose Avenue for the defendant to drive contrary to the direction of the red light signal facing her, and which required her to remain stationary until the lights had changed to green in her favour, and until it was safe to commence moving forward into her intended left turn manoeuvre. 242In his submissions on behalf of the defendant, Mr Ryan referred to Flounders v Millar [2007] NSWCA 238 in order to argue, as was stated in that case, that the defendant should not be found liable in this case for a failure to see the plaintiff before impact if the plaintiff had run onto the roadway: Flounders v Millar , per Hoeben J, at [89]. 243In this case, the obligation of the defendant was to ensure her vehicle did not move forward and encroach into the pedestrian crossing whilst pedestrians were still in the course of completing their crossing, irrespective of the state of the pedestrian and traffic control lights, which in this case I have found in any event, permitted the plaintiff to complete her crossing. 244In this case, I find the defendant's submission untenably invokes the authority of Flounders v Millar for at least two reasons . First, it has not been proven that the plaintiff was running on the road: [89]. Instead, the defendant's failure to see the plaintiff was due to her own failure to keep a proper lookout. Secondly, as was observed in Flounders v Millar , also at [89], the defendant's obligation to take reasonable care needs to be viewed in context. 245Here, the important part of that context was that whilst intending to turn left, the defendant was looking to her right, at what she thought was a four-wheel drive vehicle, which other witnesses had not seen. In those events, she failed to observe that the plaintiff and Miss Devine were on the pedestrian crossing, and were in the course of completing their crossing. In my view, on the evidence in this case, unlike the facts under discussion in Flounders v Millar , such a failure mandates a finding that the defendant was negligent, and that such negligence caused the accident in which the plaintiff was injured. In arriving at that view I have not ignored the possibility that the defendant, who was on her version, " waiting to make a turn " may have momentarily missed seeing the plaintiff and Miss Devine cross the road in front of her. I have also allowed for the possibility that she continued to fail to see the plaintiff during the time her attention was directed to her right. In making those allowances, I consider that the defendant's actions in moving forward and into collision with the plaintiff, nevertheless compel the conclusion that she failed to keep a proper lookout, and as a result, was in breach of her duty of care towards the plaintiff. 246I am therefore satisfied that the defendant was negligent, and that the defendant's negligence was the relevant cause of the plaintiff's injury. In that regard, I find that were it not for the fact that the defendant drove from Melrose Avenue into Port Hacking Road in a left turn without seeing the plaintiff moving towards her in the course of completing her crossing, the plaintiff's injuries would not have occurred.

Alleged contributory negligence 247The defendant argued that there was contributory negligence on the part of the plaintiff in the events of the collision concerning her obligation to take care for own safety. In that regard, the defendant's allegations of contributory negligence can be condensed into the following propositions extracted from paragraph 6 of the defence filed: (a)Failure to keep a proper lookout: (a) and (b); (b)Running across the road: (c); (c)Crossing against a red pedestrian traffic signal: (d); (d)Ignoring the presence of the defendant's vehicle on the pedestrian crossing and moving into the path of that vehicle: (e) and (h); (e)Failure to make use of a designated pedestrian crossing in accordance with s 231 of the Australian Road Rules : (f) ; (f)Generally causing a traffic hazard: (g). 248I have concluded that the defendant's contributory negligence arguments should not succeed. My reasons for that view are as follows. 249First, the plaintiff was lawfully on a pedestrian crossing for the purpose of completing her crossing of Melrose Ave. She had commenced to cross the roadway when the pedestrian traffic control signal was green, indicating she was lawfully permitted to cross the intersection. As such, she was entitled to continue to complete her crossing after the " Dont Walk " signal commenced to flash in place of the solid green " Walk " signal, as she had no notice of the approach of the defendant's vehicle until it was almost upon her as she neared the kerb towards the completion of her crossing. She had already passed the position of the median strip in Melrose Avenue and there was no evidence of there being a pedestrian refuge zone in the centre of the roadway to accommodate a timed out crossing signal, as is sometimes seen where an intersection is exceptionally wide, which was not the case here. 250Secondly, even if the plaintiff had been running, an assertion I do not accept, after initially walking pursuant to the direction of a green walk sign, it was reasonable for the plaintiff to increase the pace of her progress across the intersection, even if that meant that she had commenced to run (which I do not accept) in order to attempt to remove herself from the path of the approaching vehicle driven by the defendant into the pedestrian crossing, especially where that vehicle showed no signs of stopping before a collision, which was imminent. 251Thirdly, I am not satisfied that the plaintiff failed to observe the requirements of Road Rule 231 of the Australian Road Rules 2008, putting to one side, for the purpose of analysis, that the plaintiff's accident occurred on 8 November 2007. That rule, which applies to pedestrians crossing roads, relevantly permits pedestrians to continue to cross a road where, when they had already started crossing when the pedestrian lights were green, provided the pedestrian does not stay on the road any longer than is necessary to complete the crossing at the nearest point. 252As I have found the plaintiff had commenced her crossing when the pedestrian light was showing a green " Walk " signal, and there were no pedestrian safety zones at this crossing in Melrose Avenue within the meaning of rule 231(3)(a) or rule 231(4), it follows that it has not been shown that the plaintiff had failed to comply with rule 231 in any respect. 253There is no evidence the plaintiff had created a traffic hazard as was alleged, and I do not accept that ground of alleged contributory negligence. 254I therefore reject the defence of contributory negligence in each of the facets that were raised and argued by the defendant, or at all.

C. DAMAGES EVIDENCE REVIEW AND FINDINGS 255Before undertaking an assessment of the plaintiff's damages, it is necessary to identify the extent of her injuries, the treatment she has received, the medical and allied assessments that have been undertaken of her condition, as well as identifying my findings concerning the nature and extent of her remaining disabilities. I set these matters out in this section of my reasons in the paragraphs that follow. 256In approaching that task, I have had due regard to the fact that there was no significant evidentiary challenge to the history of the injuries and the disabilities that the plaintiff has recounted to the various medical and allied experts who have examined her, and who have summarised the details of the plaintiff's account of those matters in their reports. 257Since those reports contained detailed and admissible descriptions of the plaintiff's complaints of injury and disability, in addition to reviewing the oral evidence, I have drawn upon those reports in order to arrive at my findings concerning the plaintiff's injuries, and the ongoing effects upon the plaintiff of those injuries: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 per Heydon JA at [70]; Evidence Act 1995, s 60.

Initial assessment and treatment of the plaintiff 258An ambulance was summoned and attended the plaintiff at the scene shortly after the accident. There was no evidence provided of the initial ambulance assessment details, as only the ambulance transport forms, which indicated the ambulance despatch and arrival times, was tendered. 259Those forms indicated that details of the assessment and treatment of the plaintiff at the accident scene were noted on a document called a case sheet, which was not tendered. 260The plaintiff was transported to St George Hospital where she received some initial treatment. The subsequent Paediatric Brain Injury Unit out-patient reports from Westmead Children's Hospital indicate whilst the plaintiff was at St George Hospital, she received some surgical treatment and repair of the deglovement injury to her scalp by suturing before being transferred to the Children's Hospital at Westmead. 261No discharge summary or clinical notes were tendered from the St George Hospital so the details of that treatment and the plaintiff's stay at that hospital were not available. This is despite the fact that the solicitor for the plaintiff had provided a copy of the St George Hospital clinical notes to one of the plaintiff's medico-legal experts, Dr Henry Ratcliffe, who had been engaged to provide a report which was tendered in the plaintiff's case. 262Following the transfer of the plaintiff from St George Hospital to Westmead Children's Hospital on the evening of the day of the accident, she remained an in-patient at Westmead Children's Hospital for 6 days between 8 November 2007 and 13 November 2007, and during that time she was under the care of Professor Danny Cass, a paediatric surgeon, and Dr Holland a surgeon. No clinical notes or discharge summary from that hospital were tendered. 263The evidence made reference to x-rays and CT scans of the plaintiff's initial injuries, but reports of these investigations were not tendered. 264It appears that at the time of the plaintiff's discharge from Westmead Children's Hospital an assessment was made in which it was thought that she had not suffered a brain injury, and she was therefore discharged for subsequent follow-up as an out-patient.

Injuries 265The solicitor for the plaintiff requested some details from Professor Cass as to the plaintiff's injuries, and his registrar provided a reply which succinctly summarised the plaintiff's injuries, and some of the disabilities, at least those that were known to the hospital as at October 2008, as follows: "1) Date of attendance : 08/11/2007 Date of discharge : 13/11/2007 2) Injuries sustained in accident: a) Degloving injury to scalp in occipital region b) Vertical undisplaced fracture of neck and head of left mandible c) Right thigh - partial thickness friction burn 2 - 3 % body surface area d) Left thigh - partial thickness superficial friction burn e) Left suprapubic region - partial thickness friction burn f) Superficial burn to right nipple 3) Ongoing disabilities / trouble: a) Residual psychological issues pertaining to her accident, being seen by Rehabilitation team b) Scar on scalp - feels hyper-aware of the scar, feels need to cover head with bandana/beanie c) As per last report in our records (October 2008), has trouble concentrating at school 4) Capacity of client to return to her pre-accident employment She has returned to her school and as mentioned above does seem to have some trouble concentrating but we hope that this will improve with time and with counselling. 5) Diagnosis - Motor vehicle accident - Pedestrian injury with multiple injuries as listed in item 2 above." 266The following summary of the plaintiff's injuries has been extracted from the evidence of the plaintiff, her mother and her sister, and the available medical and allied reports that were tendered in evidence. 267The plaintiff remained fully conscious and alert throughout the events of the accident and its aftermath. She was therefore able to recall her experiences at the time, both when she gave her evidence and when she was earlier interviewed by the various examiners who assessed her. I accept her evidence of the events she recounted as a truthful account. 268The plaintiff became aware that she had been " smashed " onto the bonnet of the defendant's vehicle. As that vehicle continued on its path and turned the corner, she was already under the vehicle, and was aware of her legs, her pelvis, her back, her chest, her jaw, her head and her face were being run over by the tyres of the vehicle, at which time she was aware that she was " wobbling constantly " under it, as she was being dragged along as the vehicle continued to move forward. Her head had been run over, and had become caught on something under the vehicle and ripped off the entire top of her scalp. During that time she thought she was going to die. 269On behalf of the defendant, at T91.23, it was put to the plaintiff that a tyre of the defendant's vehicle had not run over her head or her face as was alleged. The defendant called no evidence to support that proposition, either in the form of an eyewitness account, or from an expert following a consideration of the plaintiff's injuries and the dynamics of the collision. The plaintiff disagreed with the assertion that was put to her in that regard. I accept her evidence, which rejected that proposition. It is noteworthy that the plaintiff's evidence, in which she said that following the accident she had a tyre imprint on her back, went unchallenged. 270At the time the events of the accident were occurring, the plaintiff felt she was going to lose everything she had, and described feeling that her world, and everything, was being taken away from her. 271During those events, she was aware that some remonstrations had been directed to the defendant aimed at stopping her vehicle as it continued to move forward whilst the plaintiff was still underneath it, and in those events she thought she was going to die. When the vehicle became stationary, the plaintiff's head and her legs were under it at the back, and she remained there for some minutes, screaming in pain. 272During that time, and until the defendant's vehicle was rolled forward and off her body, she was aware of the heat of the road gravel on her skin on the front of her body, and was aware that this sensation was worse on her legs. She described her legs as having friction burns as a result of being dragged on the gravel. The plaintiff was left with tyre marks over various parts of her body. 273When the ambulance arrived, the plaintiff's clothing was cut off her body in front of onlookers, including her best friend, her dance teacher, other friends and other girls from her school who knew her. Her sister also arrived and also saw the plaintiff in those circumstances. Whilst this was happening, she felt humiliated and embarrassed, and felt she could not face her friends and the others present. She described this as her " pride being ripped away " from her, and said that when a blanket was placed over her, she felt she had no pride left. 274At the scene, she was aware that her friend's jacket had been placed under her head to assist her. It would appear this was done by Mr Miller. At that time the plaintiff was obviously in great pain from the extensive degloving scalp injury with a raised flap that had been pulled backwards to the level of the ears, and her other injuries, and she was screaming. She had lost a lot of blood. This was confirmed by her mother's observations. The plaintiff was crying at the scene and recalled seeing the looks of horror on the faces of her friends who saw the aftermath of what had happened to her. 275The post-operative photographs that comprise part of Exhibit "D" provide graphic evidence of the extent of the degloving injury to the plaintiff's scalp. 276The plaintiff later learnt that her head had been shaven to enable extensive stitching to be applied in order to repair the large v-shaped scalp wound. At the hospital she became aware of an open pelvic or groin wound in her lower abdomen that needed recurrent debridement over a number of days because of ingrained foreign matter, probably road debris. She also became aware of having a fractured left lower jaw, which was apparently undisplaced, and which was allowed to heal by itself. A subsequent maxillofacial assessment identified a fractured left condyle of the lower jaw, as well as an historical account of grazing to the chin and sub-chin regions. 277Subsequent specialist analysis indicated the plaintiff had probably received a concussion in the accident, but without having sustained actual brain damage. 278Shortly after the accident it became apparent that the plaintiff had injured other parts of her body, including her neck and her lower back. At the scene, ambulance officers had placed her in a neck brace. Medical opinion is to the effect that the plaintiff suffered soft tissue injuries to her neck, lower back and left hip. Subsequent MRI imaging revealed the plaintiff to have mild disc bulges at the levels T12/L1, L1/2, and L3/4, which were associated with the trauma of the accident, and which I interpolate, would seem to be an unusual finding in someone so young. I accept Dr Conrad's opinion that these findings were associated with the accident. 279The plaintiff had obviously undergone a most shocking and terrifying experience that has left her with significant physical and psychological scars. 280In the paragraphs that follow, and before identifying my findings concerning the plaintiff's continuing disabilities, I will set out a chronological summary of the extensive medical and allied reviews to which the plaintiff has been subjected as a consequence of the accident, and in the course of this associated litigation.

Medical and allied assessments 281The details of the medical and allied assessments of the plaintiff's problems commence with a report from the Westmead Paediatric Brain Injury Rehabilitation Review dated 20 August 2008. 282It remained unexplained as to why there were no reports tendered evidencing any medical or other consultations or treatment received by the plaintiff in the 9 months between her discharge from Westmead Children's Hospital on 13 November 2007, and the above review and report dated 20 August 2008. 283That treatment consisted, at least, of counselling by a social worker at the Caringbah Community Centre since the beginning of the 2008 school year. There was no report concerning the details or the assessed results of that counselling. 284The referral of the plaintiff to the Paediatric Brain Injury Rehabilitation Unit at Westmead was made because, although the plaintiff showed no signs of confusion or post-traumatic amnesia whilst in hospital, at home her mother had noticed some concerning behaviours in the plaintiff that were out of character, and that raised questions as to whether the plaintiff might have post-traumatic stress disorder, or PTSD. 285At the initial out-patient rehabilitation review, which was attended by the plaintiff, her mother and two staff specialists in rehabilitation medicine, Dr Adam Scheinberg and Dr Antoinette Botman, it was thought that a brain injury was unlikely, but it was thought that the plaintiff's behavioural symptoms could be related to concussion, and also due to PTSD. 286At the 20 August 2008 rehabilitation review, the Paediatric Brain Injury Unit recommended that arrangements be made for the social worker who had been counselling the plaintiff at the Caringbah Community Centre be contacted for a discussion on the detail of those sessions to date, as well as a suggestion for a referral to a psychologist, and for an ophthalmic review to exclude any ophthalmic pathology. 287The reference to the plaintiff having a possible ophthalmic problem requiring ophthalmic review remains obscure and unexplained on the evidence. It may have been considered necessary to investigate this as a result of the fact that the plaintiff had a significant injury to the occipital region of the head, with swelling of the head, but this remains a speculative view in the absence of any expert evidence on the point. 288On 20 January 2009, at the request of her solicitor, the plaintiff was examined by Dr Ivan Lorentz, a consultant neurologist. Dr Lorentz suggested that in view of the plaintiff's jaw fracture, the opinion of a faciomaxillary surgeon should be obtained. 289Dr Lorentz identified continuing pain and dysesthesia in the region of the first division of both trigeminal nerves, associated with the scalp laceration from the accident. He also noted the plaintiff's scarring, and also noted continuing problems with headaches, concentration and learning. He thought the plaintiff had not sustained any significant injuries to the cervical or lumbar spines, or to the brain, but that she would require painkillers from time to time for her scalp pain. He thought her condition had stabilised, and would not deteriorate. 290At the second rehabilitation review at the Paediatric Brain Rehabilitation Unit on 22 April 2009, which was attended by the plaintiff, her mother, the two previously mentioned medical specialists, a clinical psychologist and the unit's social worker, it was reported that since a lawyer for the plaintiff had not been supportive of the suggestion that the plaintiff seek help from a clinical psychologist, that avenue of assistance had not been pursued. It would be remarkable indeed if legal advice to the plaintiff had been given to that effect or in those terms. I will return to this point in connection with my findings on mitigation of damage. 291It was noted that the rehabilitation unit's social worker was to speak with the solicitor for the plaintiff about arranging for possible funding for therapy as the CTP insurer, NRMA, had declined liability, and it was reportedly only partly willing to pay for treatment, and therefore, the at-fault scheme for the treatment of minors injured in motor vehicle accidents was to be investigated. There was no evidence called on the result of any pursuit of that suggestion. 292The rehabilitation unit's psychologist gave the plaintiff and her mother some recommendations for an appropriate clinical psychologist to see the plaintiff in her local area, as well as advice concerning strategies in that regard. 293The plan for the plaintiff at the second rehabilitation review at Westmead was for her to be seen again in a further 6 months time, and at that stage, it was planned to transfer her further rehabilitation to an adult rehabilitation unit. There is no evidence that this in fact occurred, and if it did, there is no report evidencing any ongoing assistance to the plaintiff in that regard. 294On 3 February 2009, at the request of her solicitor, the plaintiff was assessed by Dr Julian Parmegiani, a consultant psychiatrist, who focussed only on the psychiatric sequelae of the plaintiff's accident. 295After reviewing the plaintiff's history, Dr Parmegiani assessed the plaintiff as being emotionally labile, and tearful when speaking about the accident. He described her symptoms, which he recorded in detail, as being characteristic of PTSD. Dr Parmegiani noted that at the time of his examination, the plaintiff had not obtained specialist psychiatric or psychological treatment because she could not afford to do so as the CTP insurer had denied liability, which I take to be a liability to pay for such expenses. Dr Parmegiani reserved his opinion on the prognosis of the plaintiff's PTSD until her condition became clarified by treatment. 296On 18 February 2009, at the request of her solicitor, the plaintiff was assessed by Dr Hunter Fry, a consultant plastic and reconstructive hand surgeon. He stated that the plaintiff's scalp had been repaired skilfully, but there was some lost sensation of the scalp, and from a cosmetic perspective, in some circumstances, the scarring to the scalp could be made out as being visible. 297Dr Fry identified 3 areas of scarring, namely to the lower abdomen, which he thought could be revised, to the right thigh, and to the scalp. He described the right thigh scar as hyper-pigmented, visible from across a small room or at the beach, and comprising a mild disfigurement. He described the scalp scar as having significance to the plaintiff because it was incorporated into her body image, even though she cannot see it, but nevertheless, she is aware of it. He described the scalp scar as being likely to be occasionally visible. 298The next review of the plaintiff's psychological condition was by Ms Fiona Beall, an adolescent clinical psychologist, who saw the plaintiff for counselling. Ms Beall's first review took place either on, or shortly, after 27 August 2009, at the referral of Mr Kim Hoang, a general practitioner, and took place some 21 months after the plaintiff's accident. Ms Beall saw the plaintiff on a number of occasions before issuing her report which was dated 1 November 2010, which was odd, because the report referred to an assessment of the plaintiff's symptoms on 2 November 2010 by Ms Beall. This could be a typographical error as to one of the dates. 299The report of Ms Beall dated 1 November 2010 reviewed the psychological treatment, which she had provided to the plaintiff over the preceding 15 months since August 2009. The report of Ms Beall concluded that the plaintiff presented with the features and the appearance of PTSD. 300There was no evidence in the form of reports from any treating psychologist or a psychiatrist since Ms Beall's report dated 1 November 2010. This is despite the evidence that the plaintiff had been receiving treatment from Ms Beall on a fortnightly basis since 18 February 2011: Exhibit "A". 301On 18 February 2009, at the request of her solicitor, the plaintiff was also assessed by Dr Henry Ratcliffe, a dentist and consultant maxillofacial surgeon. He reviewed and listed the plaintiff's jaw and eating symptoms. He identified excessive firmness of the masseter muscles on both sides of the plaintiff's face, limited lateral movements of the lower jaw, with tenderness, and premature contact of the teeth in the right pre-molar region before full jaw closure. His provisional clinical diagnosis was temporomandibular joint dysfunction, with mastication difficulty. 302Dr Ratcliffe stated that he felt he was not able to determine whether the plaintiff's temporomandibular joint dysfunction was a settling problem or a long term problem likely to become more severe, and required more information to arrive at a prognosis. He required contemporaneous facial radiographs to compare to current facial radiographs, the dental restoration records of the dentist who carried out dental restorative work following the accident, and contemporaneous records from Westmead Children's Hospital. He also wanted clinical confirmation of the damage caused to the plaintiff's dentition from the fracturing of the condyle of the plaintiff's left lower jaw. 303There was no evidence as to whether Dr Ratcliffe had been provided with the materials he required for his further consideration, and no further report was tendered from Dr Ratcliffe, so it was not known whether he had been asked to give further consideration to the questions he had raised. In any event, given the reported findings at St George Hospital, together with the absence of any evidence of jaw or dental problems in the plaintiff before her accident, I consider that Dr Ratcliffe was being over-cautious concerning the connection between the accident and the plaintiff's temporomandibular joint problems. On the evidence, I am satisfied that the accident caused that problem. 304On 23 July 2009, at the request of her solicitor, the plaintiff was examined by Dr Richard Evans, a consultant physician. He took a history from the plaintiff of ongoing problems with headaches, scarring and depression. He thought the plaintiff's thigh or groin scar pain may be due to the presence of a neuroma or abnormal neural tissue having developed within the scar. Dr Evans emphasised the importance of the plaintiff being seen by a psychologist for what he presumed would be cognitive behavioural therapy. 305The third and final rehabilitation review at the Paediatric Brain Injury Rehabilitation Unit took place on 18 November 2009, and was attended by the plaintiff, her mother, Dr Botman, and another staff specialist in rehabilitation medicine, Dr Stephen O'Flaherty. At this final review it was noted that there had been a systemic delay of nearly a year before the plaintiff's case was picked up and before the plaintiff could be seen by an adolescent clinical psychologist. This was because the treatment sessions had to be paid through Medicare, they were not paid for by the CTP insurer. I will return to that issue in connection with my findings on mitigation of damage. 306That last rehabilitation review concluded that the plaintiff suffered symptoms in keeping with a concussion, and with PTSD. No arrangements were made for further rehabilitation follow-up, other than through Dr Sethi, the plaintiff's general practitioner. 307No reports were tendered from either Dr Sethi or Dr Hoang, both of whom appeared at some stages to be the plaintiff's general practitioners. 308On 17 March 2010, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Nigel Marsh, an occupational physician. Aside from noting the plaintiff's scarring and psychological issues, Dr Marsh was of the opinion that the plaintiff still had residual occasional pain in the left jaw, and residual pain and slight restriction of movement due to the effects of a musculo-ligamentous strain to the low back. He considered these problems to be compatible with the injuries sustained by the plaintiff in the accident. 309On 22 March 2010, at the request of her solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad reviewed a series of x-rays and MRI scans. The hip MRI was absent from that assessment, so Dr Conrad deferred his opinion on the significance of the plaintiff's back complaints. Dr Conrad noted that the plaintiff had PTSD, and he suggested that she undergo separate psychometric testing, followed by a report from a psychologist. The evidence does not indicate whether that suggestion was in fact followed. 310On 10 December 2010, at the request of her solicitors, the plaintiff underwent MRI scanning of her lumbar spine and her left hip. The left hip MRI scan was interpreted as being normal. The lumbar scans were reported as showing mild generalised disc bulges at the levels T12/L1, L1/2, and L2/3, with no significant spinal canal or neural foraminal narrowing. The report stated that no significant disc herniation or, spinal canal or neural foraminal narrowing was seen at the levels L3/4, L4/5 and L5/S1. The scan was also reported as showing mild decreased intervertebral disc space height, and desiccation at the level L1/2. 311On 18 January 2011 the plaintiff was re-examined by Dr Lorentz, who was provided with further material from the solicitor for the plaintiff, including the MRI report, for his consideration. 312Dr Lorentz considered some x-rays and the 10 December 2010 MRI scans. He thought the disc bulges seen at T12/L1, L1/2 and L2/3 were within normal limits. He noted that the plaintiff continued to suffer from PTSD, and stated she would not be able to cope with stressful situations, and may need intermittent future treatment for that condition, as well as attention to her temporomandibular joint, possibly the need for a night plate, and cortisone injections. Dr Lorentz also stated that the plaintiff's emotional and behavioural disturbances related to her PTSD, and should be assessed by a psychiatrist or psychologist. 313Also on 18 January 2011, the plaintiff was re-assessed by Dr Parmegiani. Amongst the reports that were provided to him for his consideration was a Medical Assessment Service or MAS report from Dr Marilyn Moore, a consultant psychiatrist. Her report was not tendered in evidence. 314At this further review, Dr Parmegiani observed that the plaintiff continued to feel irritable, depressed and emotionally labile, and that her PTSD symptoms had continued. He went on to describe the plaintiff's PTSD condition as having taken a chronic course, with the development of secondary depression. He also identified the fact that the protracted legal proceedings had exacerbated the plaintiff's psychological state. There is no suggestion within his opinion that such exacerbation is likely to significantly abate after the conclusion of proceedings, but he advised against open-ended psychiatric treatment for PTSD because of the possibility of the plaintiff becoming dependent upon the therapist. Dr Parmegiani also considered the plaintiff required domestic assistance, including from family members when leaving the house, and was unable to provide a long term prognosis for those needs, thereby indicating that the plaintiff's capacity for full independence had been significantly and adversely affected. 315On 8 February 2011, at the request of her solicitor, the plaintiff was re-assessed by Dr Conrad. At this time he described her condition as having deteriorated because of increasing headaches and difficulty concentrating. He also noted the plaintiff's complaint of continuing pain in the left lower jaw, and difficulty with eating certain foods, requiring that she have a soft diet. He also noted the complaint of ongoing pain and stiffness in the plaintiff's left hip. Dr Conrad reviewed the MRI scans of the left hip and noted no abnormality in that area. 316Dr Conrad noted the ongoing effects of PTSD for which counselling was required, and he also noted the jaw and scarring issues that were described elsewhere. He recommended a further opinion from a faciomaxillary surgeon. 317Significantly, Dr Conrad was of the opinion that the plaintiff had suffered a back strain and associated discal injuries for which she needed ongoing physiotherapy. 318Dr Conrad reiterated his earlier suggestion that the plaintiff required psychometric testing as he considered the possibility that she may have sustained brain damage. He suggested that such testing was required to elucidate this question. There is no evidence that this further suggestion was ever followed up or attended to clinically, either by the plaintiff's legal representatives or by any treating practitioner. 319Dr Conrad noted that the plaintiff had a recent cortisone injection to the jaw, apparently administered by a faciomaxillary surgeon whose name the plaintiff could not recall. No evidence was presented in relation to when that assessment or treatment had been undertaken or by whom. 320On 28 April 2011, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Jeffrey Bogan, a consultant educational psychologist. He considered that there was no doubt the accident had been a terrifying experience for the plaintiff. He suggested that the plaintiff's self-perception had, in a metaphorical sense, probably become " jaundiced " following the accident, and that she tended to only focus on the negative aspects of her life, and in the process, probably denied to herself the positive aspects. His opinion was that her negative self-attitude had become entrenched which to me suggested permanence, and that she was " now awfulising her situation" . In his opinion the plaintiff's memory problems were as a result of her depression rather than impairment of brain function. 321Dr Bogan performed some testing of the plaintiff but there is no evidence that these were given a neuro-psychological interpretation. 322On 24 May 2011, at the request of the Motor Accident Authority, the plaintiff was assessed by Dr Howard Synnott, a consultant psychiatrist. As a result of his assessment, Dr Synnott considered the plaintiff was psychologically fragile, anxious, and of low mood, but without cognitive impairment. He noted her complaints on a range of psychological matters and described her presentation as being consistent. Dr Synnott made reference to the psychiatric opinion of Dr Moore that had been provided to him, and he noted that Dr Moore had diagnosed the plaintiff as having chronic PTSD, which was also his diagnosis, along with symptoms of anxiety and depression, and adjustment issues. 323In the 18 February 2009 report of Dr Ratcliffe it was noted, at page 3, that the plaintiff had a referral to be seen at the Brain Injury Unit, presumably an adult unit, in a further 18 months from that time, which, if it had been arranged and attended, would have taken place in about mid-2011. No evidence was called in relation to any details about such an attendance. 324The absence of any reports from Dr Sethi may be partly explained by the fact that by 8 February 2011, as was noted by Dr Conrad in his last report, Dr Sethi had retired. 325It is clear from the evidence that the plaintiff's many attendances on medical, allied, and legal appointments and the fact that this litigation remained outstanding, have had a distracting and negative effect on the satisfactory completion of her education.

Disabilities that remain 326The plaintiff has made, what the psychiatrist who carried out the MAS assessment of the plaintiff described as, commendable efforts deserving recognition for trying to make the best of her life: Dr Synnott, Exhibit "L", p 9. 327That opinion is in stark contrast with the opinion of the defendant's psychologist, Dr Bogan, who made the suggestion that the plaintiff had focussed on the negativity of her situation in the nature of a " self-fulfilling prophecy " and believed she was " awfulising her situation ". In my view, Dr Synnott's comment is more in keeping with the plaintiff's attitude according to my impression of her efforts. Dr Bogan's comments to the contrary are not fully reasoned, appear on their face to be anecdotal, and in my view imply a conscious level of exaggeration. I reject such a notion. Instead, I interpret Dr Bogan's comment in this regard to be illustrative of the fact that the plaintiff has been unable to resolve her PTSD because the events of the accident and its aftermath have been so awful for her, and that her PTSD has proven to be recalcitrant to treatment to date. 328Whatever the formulation, the plaintiff is still beset with many disabilities which, on the medical evidence, have no indications for abatement or significant amelioration. 329In the paragraphs that follow, I set out my findings concerning the plaintiff's disabilities, which entail problems of a physical, cosmetic, emotional and psychological nature. 330In the weeks that initially followed the accident, the plaintiff had difficulty walking, showering, and felt that she wanted to keep herself away from people. She had to return to hospital every 2 days for wound debridement for some time. She described her emotional state in that period as " not very good ", in what I took to be an understatement. 331The plaintiff did not complete her formal Year 9 schooling for the remainder of the 2007 school year and the remainder of her schooling was marred and overshadowed by the effects of the accident. 332When the plaintiff resumed her schooling in the 2008 year, she wore a bandana on her head to cover her baldness and in an attempt to alleviate her embarrassment. She explained, and I accept, that before the accident she had been proud of her hair, which she had kept long as an individual feature personal to herself. The plaintiff's mother also confirmed this was the case. After her head was shaved for essential treatment of her scalp wound, the plaintiff could not look at herself in the mirror. Indeed it was some time before she had been allowed to view herself in the mirror. She angrily resisted insensitive requests by teachers for her to remove her bandana, and reacted in a " crazy " way when such attempts were made. 333The plaintiff found her return to school after the accident to be very distressing because of the intrusive interest taken into what had happened to her. She developed a negative attitude towards teachers. She had difficulty applying her mind to her schoolwork, and had distracted herself with writing about how she felt, rather than focussing on her lessons, and as a result, she did not achieve her full potential for the remainder of her schooling. 334She found it difficult to concentrate and read, and exhibited anger and oppositional behaviour at home and at school as a reaction to her changed circumstances as a result of the accident. 335The plaintiff said, and I accept, that she felt her schooling had become " wrecked ", and she was unable to maintain concentration for her lessons and her studies, and found herself drawing flowers and butterflies, as these were the best things she could remember before her accident, and this worried her. The plaintiff's mother described the plaintiff as having lost her aspirations for the future. Her overall UAI assessment was 67 per cent, which was below her expectation had she not been injured. 336The plaintiff became constantly pre-occupied with what had happened to her. This is confirmed by the evidence of the plaintiff's mother and her sister. She talks about the accident at every opportunity. She found that she could not sleep properly, and when she did sleep, she suffered from nightmares about being injured again, and always had intrusively disturbing dreams of being " squashed from behind ". Her sister has observed the plaintiff's sleeplessness, and the fact that she cries until exhausted, and only then falls asleep. To her mother the plaintiff expressed the wish that she had not survived the accident. 337Physically, the plaintiff has been left with ongoing pain and discomfort in her head. She has feelings of numbness in the scalp and tightness in her head. She has ongoing pain and discomfort in her back, and when she rotates her pelvis. She is never free from back pain, and her back does not ever feel good. This restricts her ability to exercise and restricts her ability to lift and carry, and she always has the feeling that her back is being strained. She experiences tenderness in the lower jaw and left temporomandibular joint, especially when eating. She also reported difficulty in speaking. The temporomandibular joint is obviously pivotal for such commonplace daily function. 338She suffers from significant chronic headaches, which can delay her sleeping, and she takes up to 8 Panadol tablets per day to deal with this, several times per week. She also encounters pain when she brushes or combs the hair in the region of the scarring on the top of her head because her hair gets caught when she does so. 339The plaintiff's scarring is a matter of considerable significance to her. The scarred area to her scalp is tender to touch and hypersensitive. She is constantly aware of it and needs to wear her hair in a certain way to try and disguise it but it is nevertheless still visible in part through the fall of her hair. She often feels self-conscious about this scarring and her other scars. Dr Bogan has suggested, and I accept, that the plaintiff's self-perception has become " jaundiced " following her accident, in that she has understandably tended to only focus on the negative aspects of her life, to the extent that this is now an entrenched or permanent process, which contributes to her depression. 340The plaintiff finds herself feeling ashamed and embarrassed when remarks are made about the altered appearance of her thighs, particularly her right thigh. Apart from the scarring, her right thigh scar becomes discoloured when exposed to the sun and the area does not feel normal. She gets an abnormal tingling sensation in that area, and it becomes itchy and is easily burnt if exposed to the sun. Her choice of clothing has become restricted as a result, and she now seldom wears shorts. 341Despite the fact that the plaintiff is a well-presented young woman, her self-assessment is that she feels she has been " ruined ". Her self-esteem has been significantly affected. She has been unable to maintain her involvement in dancing, and has found that at the physical and emotional levels, she could not deal with her reduced capacity to dance, an activity for which she was highly motivated and in which she was highly accomplished before her accident, and which formed a significant part of her pre-accident life. Her mother made the observation that the plaintiff is not as flexible as she was before the accident. When she resumed school in the year following the accident, she had found it difficult to be around her dance teacher who had been at the accident scene. She failed to pass her HSC dance examination, which was a matter of great disappointment to her. She also failed to achieve a pass mark in the subject of ancient history. 342The defendant tendered a bundle of the plaintiff's school reports from Sylvania High School for Years 9, 10, 11 and 12 between 2007 and 2010. I have considered these reports and have found them to be of limited assistance in determining the effect of the plaintiff's injuries on her future career path. This is because before the plaintiff's injury, across a range of subjects, the plaintiff's teachers were clearly making observations and comments aimed at encouraging motivation in the case of an otherwise capable student, and I therefore consider that the post-injury reports provide a limited basis for comparison. However, the pre-injury reports do reflect some significant absences from school and issues to do with application, organisation and motivation against a background of ability, especially in mathematics. Bearing in mind the plaintiff's age at the time of her injury, I do not consider that these matters have any significant impact on the issues that arise in the assessment of damages other than to confirm that the plaintiff's education was disrupted after the accident. 343The disabilities that I have identified thus far have had a considerable psychological impact upon the plaintiff, and upon her ability to live a normal life, as she had expected would be the case had she remained uninjured. 344A reference to the photographs comprising Exhibit "D" and the photographs accompanying the report of Dr Fry, as well as reference to the reports of the psychologists and psychiatrists enables insight to be gained into the effect the scarring has had upon the plaintiff's psychological functioning. 345The plaintiff now finds that when matters to do with the accident are brought up in conversation, such as when someone gets a glimpse of the scarring to her scalp and makes an inquiry of it, this makes her feel " shut down " as she cannot deal with the emotions that come to the fore in those circumstances. She described the process of having to talk about what has happened to her, such as going to doctors or assessors for the purpose of the case, as ripping her apart, and she feels diminished by such events, and withdraws in order to cope. 346The plaintiff has difficulty focussing her mind on tasks. She is irritable, argumentative with her mother, gets angry and upset, especially when having to recount the events of the accident. She has low moods and negative thoughts. 347In addition to her sleeping difficulties the plaintiff has anxiety and flashbacks to the accident, and experiences nightmares 2 to 3 times per week. She is nervous when travelling in motor vehicles, she is hypervigilant and is socially isolated. 348The plaintiff's treating psychologist, Ms Beall, catalogued and explained the plaintiff's problems that justified the diagnosis of PTSD. These included a mix of intrusive and avoidant symptoms, as well as oppositional behaviour, feelings of guilt, difficulty tolerating, regulating or controlling her frustration and anger outbursts. Her traumatic experience from the accident, her persistent avoidance of stimuli associated with the trauma, her persistent difficulties with sleep, concentration, anger control, hyper-vigilance and the lengthy persistence of these symptoms do not auger well for the plaintiff's social functioning. 349The initial psychiatric assessment of the prognosis for the plaintiff's problems by Dr Parmegiani in January 2009 was deferred, and left to be clarified following the plaintiff's response to treatment that Dr Parmegiani envisaged would be available to her. Without fault on the part of the plaintiff, her treatment was unfortunately delayed because the CTP insurer declined to pay for it, as was the insurer's right. However, the result has been a lengthy delay in the allocation of the appropriate resources, namely, the treatment sessions the plaintiff has had with Ms Beall, a child and adolescent psychologist. 350When Dr Parmegiani came to re-assess the plaintiff in January 2011, he noted that the plaintiff remained depressed and withdrawn. He made a diagnosis of secondary depression. He noted that these legal proceedings had unfortunately required the plaintiff to focus on her traumatic memories, which had perpetuated her anxiety. There is no evidence that her perpetuated anxiety will abate to any significant degree. 351That process of perpetuation, which also had a significant negative and distracting impact on her schooling because of the need to attend medical appointments and the like, was well described in the evidence. 352Unfortunately for the plaintiff, there is no indication within the medical evidence that suggests there will be a dramatic or significant improvement in the level of her psychological problems once the litigation is behind her. The best that can be said of this is that in January 2011, Dr Parmegiani thought the conclusion of legal proceedings should lead " to some improvement of symptoms ". I consider that comment to be a significantly qualified statement. It provides no contextual explanation of the extent or degree of any expected or possible improvement, and more importantly, it does not suggest the plaintiff's symptoms will resolve or abate to an extent that will increase her ability to more fully function independently on a personal, social or employment level. 353The only other psychiatrist who provided a report that found its way into the evidence in this case was Dr Synnott, who saw the plaintiff 4 months after Dr Parmegiani's latest assessment. Dr Synnott's opinion did not detract from Dr Parmegiani's assessment in any material respect. 354On the contrary, within the terms of the assessment guides for permanent impairment, which had embodied within it a stated unlikelihood of remission despite medical treatment, his diagnosis was that of chronic PTSD with deficits in the areas of self-care, and inability to live independently, problems in social and recreational activities, travelling, social functioning, concentration, persistence in maintaining attention, as well as employment limitations. 355Furthermore, Dr Bogan's psychological assessment and opinion, which was also some 4 months after Dr Parmegiani's assessment, did not relevantly detract from Dr Parmegiani's opinion, either in terms of diagnosis or prognosis. 356If anything, Dr Bogan's views added emphasis to the chronic nature of the plaintiff's problems, based as they are on her terrifying experience, her subsequent feelings of humiliation, her altered self-perception and her entrenched negative focus on the effects the accident has had upon her. Dr Bogan stated this process has resulted in " a self-fulfilling prophecy ". Whilst that comment is not a substitute for a medical opinion, it does emphasise the bleak outlook for the future of the plaintiff's symptoms and psychological condition, suggesting a very significant and permanent level of impairment. 357I obtained what I considered to be a realistic impression of the plaintiff's feelings of embarrassment and humiliation from her demeanour in the witness box when she had to face questions on the details of the accident or her symptoms, topics which she found very upsetting. It was plainly apparent that in that process, she became welled up with tears, she avoided immediate answers, as if she was somehow blocked from responding, and she kept her answers to a minimum. I did not gain the impression that she was " awfulising " her situation in a conscious or deliberate sense. Significantly, at times she was overcome with emotion, but preferred to press on to complete the process rather than have breaks from giving evidence. My impression was that the plaintiff continued to markedly experience the adverse psychological consequences of her injuries, as was well described in the expert evidence. 358The plaintiff described her feeling of at times feeling shut down and how, when she feels that way, she stays away from people. When she has to deal with the hurt of her circumstances she does so by not talking to anyone for a very long time, at times for more than a week. 359The plaintiff described having reduced motivation, and described an attitude of laziness towards keeping her room tidy, and with self-care and nutrition. These matters, and the difficulty she experiences in leaving the home for significant outings, formed the basis of a claim for future domestic assistance. 360The plaintiff's school performances in the HSC subject of dance had to be modified to suit her reduced stamina. She could not maintain the requirements of dance performance, and instead, pursued her major in dance composition, which was less physically demanding. At school she became defiant and her mother also noticed some oppositional behaviour. 361The plaintiff has become disappointed in not being able to pursue her dancing, and some ambitions she had held concerning the possibility of earning money from such activities, on what I took to be a casual and occasional basis. 362The plaintiff's sister stated, and I accept, that before the accident the plaintiff was always happy and enthusiastic about everything she did. This was in stark contrast to the plaintiff's subsequent situation of lethargy, withdrawal and lack of motivation that has prevailed since the accident. I accept the evidence of the plaintiff's sister to the effect that the plaintiff doesn't laugh any more, she is a totally different person, who complains of pain, and no longer has ambition and motivation, and since the accident, cries herself to sleep. 363The plaintiff rejected the proposition that once the proceedings were over she would be able to study and work full-time in any field of her choosing. She rejected the proposition in the following terms; "RYAN: ... Q. Moving away from the accident now. I want to suggest to you that once these proceedings are over you'll be capable of doing full time work and study of any field that you choose? A. I disagree. HIS HONOUR Q. Why do you say that? A. Just because it's over doesn't mean I get to forget or go through without any pain. Just because this is running doesn't mean that I have pain just because of this Court, physically and mentally just because this is happening, once it's over it's going to be there forever. I don't get a second body or a second mind." 364I accept that the plaintiff's existence has become permanently marred in a physical and a psychological sense. I also accept that the plaintiff's injuries continue to have a permanently deleterious impact upon her future and her potential to work in the future.

Effects on employment and leisure activities 365At the time of the hearing, and since May 2011, after leaving school at the end of 2010, the plaintiff had been working for up to 5 days per week for Muffin Master, a cake shop that was located underneath the home of her parents. Her duties involved cake finishing, and occasional customer service. The plaintiff explained, and it was not contradicted, that in her work, customer service was not her strong point. 366This employment arose because the proprietors of that business are friends with the plaintiff's parents, and the plaintiff used to go to those premises for time out from her home environment, and because the proprietors made her feel welcome there. It appears this was in part arranged by the plaintiff's mother and also because the plaintiff's sister used to work in that cake shop for pocket money. 367The plaintiff's work at Muffin Master was initially unpaid because her presence there was informal and diversional for her, but it then led to part-time paid work when she was in Years 7 and 8 at school, and subsequently it led to full-time employment from about either November 2010 or May 2011. It is not the work the plaintiff wants to do in the future. I gained the impression that this work was an interim measure for the plaintiff whilst she sorted out her life because she was not able to juggle several goals at the same time. 368It is clear that the plaintiff does not intend to pursue the work of a pastry chef. The hours involve working at 3.00am, which she considers to be an abnormal arrangement, and not what she wanted for herself. At present her earnings are about $420 per week net for a 5 day week, which includes some Saturdays. 369The plaintiff rejected an assertion to the effect that she was waiting for her case to be concluded in order to pursue a cooking course to enable her to become a chef. She explained that a note made to that effect in a medical report was a summary conclusion made by a reporting doctor. In the sense that she had not yet settled upon a course of action regarding her future employment, she gave evidence as follows: "... Q. Did you use those precise words or is that a doctor's summary? A. No, that's the doctor's summary. RYAN Q. So you told him that you were thinking of doing a cooking course but you were going to wait until this case was over? A. Mm-hmm. Q. Why are you waiting until this case is over before you get on with your career? A. Because it is highly unfair for someone to undertake me in a job of any description because of how much days I take off because of this. Q. You mean days going to doctors and seeing lawyers and-- A. It's unfair to go through - I went through HSC and court, that was hard enough. I can't even hold together a normal job and court. What makes you think I'm going to be able to hold together an apprenticeship of some description? A. So-- HIS HONOUR Q. Just before you go on, what do you mean by the term "hold together"? A. Juggle two things at once. Q. Is that something you have difficulty with? A. Every time I come to court I go to a court assessor, I've shut down, I don't want to talk about it because this is how it ends up. ... RYAN Q. We are discussing the litigation and the disruption the Court proceedings have brought to your life, this is apart from the trauma of the accident, it's the disruption that's caused to you by having to come to court, having to visit all these doctors and you take the view it would be disruptive to study and work while these court proceedings are going on, that's the case isn't it? A. I'm not even sure I'd be capable of holding any job together, even with or without the Court case. Q. But you're holding a job together now earning-- A. Barely. My boss lets me takes breaks." 370It is therefore apparent from the evidence that the plaintiff is presently working for employers who have a benevolent attitude to her and to her problems. That is an uncommon employment situation in the open labour market generally. 371Before her accident the plaintiff would from time to time speak to her sister about her aspirations for the future. She very much wanted to succeed. She used to speak of wanting to become a police officer, or a lawyer, or to achieve some position of high achievement. In answer to questions put in cross-examination, the plaintiff's mother confirmed that other family members had attended university. One of the plaintiff's uncles had obtained a science degree, another a degree in accountancy, and another had pursued a trade. Accordingly, it can be seen that there is a history of achievement in the family. In my view, and contrary to the submissions made by the defendant, the career paths taken by the plaintiff's siblings are not necessarily a guide as to what path her future career might have followed.

Mitigation 372The common law duty to mitigate damages arising from injury has been given statutory recognition, and therefore requires consideration in this case: s 136 Motor Accidents Compensation Act 1999. In my view there has been no relevant failure on the part of the plaintiff to mitigate her post-accident situation. 373A complete answer to any suggestion that she could have mitigated her psychological suffering by taking antidepressant medication is that at the relevant time such a course was suggested, the plaintiff was a minor under parental control, and the fact that she did not take such medication was as a result of a parental decision taken in the plaintiff's best interests. In my view it is not open to the defendant, in a hindsight evaluation of the reasoning for that position in the context of this litigation, to question the wisdom or otherwise of that parental decision: Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345, at 350. This is especially so in the absence of an explanation of risks and benefits associated with the decision sought to be questioned. 374Furthermore, a suggestion that there was a failure on the part of the plaintiff to mitigate, because there was a significant delay of about 1 year for the plaintiff to obtain appropriate psychological counselling and treatment has added to the extent of the plaintiff's psychological damage, must be refuted in this case. 375In my view the complete answer to any such suggestion was the refusal of the CTP insurer, NRMA, to pay for the treatment that was recommended by the Paediatric Brain Injury Rehabilitation Unit. The result of those circumstances was that the plaintiff was dependent upon a resource starved Medicare system, and she had to endure a delay whilst she waited for her eligibility for treatment to be accepted in the public system, and for the required public resources allocated for that purpose. The resultant translation of the plaintiff's PTSD into a chronic form of the disease, in the interim period, if due to delay in obtaining treatment, is not a matter for which responsibility should reasonably be visited upon the plaintiff in this case. 376It was suggested to the plaintiff that she has delayed pursuing her full economic and career potential pending the completion of this litigation. Whilst she accepted that proposition in part only, I do not consider that such acceptance warrants a finding that there has been an unreasonable failure to mitigate on her part. I have reached that conclusion for what I consider to be the following two principal cogent reasons. 377First, since leaving school in May 2011, the plaintiff has worked full-time in a cake shop earning about $420 per week net. As a consequence, she makes no claim for past loss of earnings or past loss of earning capacity. Those circumstances do not bespeak a failure to mitigate. There is no relevant claim for past economic loss that would relevantly require mitigation. 378Secondly, the plaintiff was having difficulty in coping psychologically with the demands of the litigation, which was a matter outside of her control. The requirement that she attend medical examinations was a demanding one in her case, where the process of having to discuss the details of the accident and her accident related problems left her feeling shut down and debilitated, and diminished for significant periods of time. She felt, reasonably in my view, that unlike the position with her present employer who knew her and her family, it would be unfair for such difficulties to be visited upon an employer: Arnott v Choy [2010] NSWCA 259, per McColl JA, at [161]. 379Otherwise, at the age of 19 years, and beset with the continuing problems that comprise her disabilities, as reviewed above, it is in my view unreasonable to criticise the plaintiff, as the defendant sought to do, for delaying her pursuit of other potential career options. I reject the notion that the plaintiff has deliberately delayed further study or other career options in order to await the outcome of this litigation. I accept her explanation in which she rejected that proposition. 380In these circumstances, I conclude that it has not been shown that there has been any unreasonable failure on the part of the plaintiff to mitigate her damage arising from her injuries.

D. ASSESSMENT OF DAMAGES 381In the paragraphs that follow, after identifying the plaintiff's probable remaining life span, I set out my assessment of the heads of damage claimed by the plaintiff in these proceedings.

Plaintiff's remaining years 382An assessment of several components of the plaintiff's entitlement to future damages first requires a statistical assumption as to the number of years that will probably remain to her. Having regard to the current prospective life tables, at age 19, this being the plaintiff's age at trial, and in the absence of any medical or other evidence suggesting the plaintiff may have a decreased life span, I assess her probable life span to be in the rounded down statistics based figure of a remaining 69 years. The 5 per cent multiplier for 69 years is 1032.5.

Non-economic loss 383In my reasons thus far, I have already reviewed the nature and the extent of the plaintiff's injuries, her treatment, the essence of the medical and allied reviews of her situation and the nature and extent of her ongoing disabilities: paragraphs [258]-[371]. 384At the age of 16 years, the plaintiff has experienced an horrific accident in circumstances where she was fully conscious and aware of what was happening to her at the time. It was a painful, terrifying and humiliating experience for her, and as a result, in addition to the ongoing physical consequences, she continues to suffer nightmares and sleeplessness. Reasonably, at the time, she thought she was going to die. She will indelibly carry the physical and emotional scars from that experience for the remainder of her life. She is now only 19 years of age. 385The events of the accident, the plaintiff's injuries and the aftermath of those injuries, have adversely changed her personality, negatively affected her motivation and her outlook on life, and her prospects for the future concerning personal and family relationships and her future employment. There is little expectation from within the medical and allied opinions tendered, or from the plaintiff's evidence, or that of her mother and sister, that would reasonably give rise to an expectation for any significant improvement in her situation. 386The scarring from which the plaintiff now suffers, especially the scarring to her scalp, but also including to her thighs and groin, has negatively affected her image of herself and her self-esteem. This has added to the problems of her chronic PTSD in the form of depression and the untoward effects of that condition upon her memory. She finds it necessary to withdraw from the company of others and to shut herself down emotionally as a means of coping with the reminders of her ordeal. She cries herself to sleep at night, falling asleep when tiredness from crying eventually overcomes her. 387In addition, she has physical impairments in the form of constant pain and discomfort in her lower back in association with lumbar disc lesions. She also has ongoing problems with her lower jaw, which has resulted in her finding it difficult to eat an ordinary range of foods, and having to endure a restricted diet. 388None of these matters leave much hope for the plaintiff to achieve a happy and carefree future, as was the expectation of her personality and outlook before the accident occurred. 389The purpose of compensatory damages is, so far as a limited award of money can achieve, to restore or place the injured person in the position or situation that would most likely have prevailed had the injuries not occurred: Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60, at [9]. 390In my view, the circumstances which I have earlier reviewed at length in my reasons, and which I have more briefly reviewed in the immediately preceding paragraphs, call for a substantial award of damages for non-economic loss. In this regard, I consider that the submission made on behalf of the defendant for non-economic loss damages to be awarded in the amount of $150,000, if accepted, would give rise to manifestly inadequate compensation for the plaintiff in this case. 391In my view, the submission made on behalf of the plaintiff for damages for non-economic loss to be awarded in the amount of $325,000 should be accepted as being reasonable, albeit that amount is in the upper end of the applicable range. 392I consider that the factors that merit an upper range award in that amount are the plaintiff's relatively very young age and long life expectancy, her permanently disfiguring scars, the entrenched and chronic nature of her PTSD with associated depression, a condition that became chronic in the period of delay before the plaintiff was able to obtain timely access to appropriate treatment, the absence of any reasonable scope for any significant amelioration in any of her physical, cosmetic and psychological disabilities, and her persisting diminished sense of self-worth. These matters are bound to adversely impact upon her ability to lead a fulfilling personal and working life, and represent obvious barriers to her finding a partner in life, which would have been her ordinary expectation, had her injuries not occurred. 393These are all matters of substantial pain and suffering which significantly, adversely and permanently impair the plaintiff's enjoyment and amenity of life. To the extent that an award of money can compensate for such matters, on present day standards, I consider that non-economic loss damages in the amount of $325,000 would be the fair, reasonable and proper sum to award for such matters in this case. 394I therefore award the plaintiff damages for non-economic loss in the amount of $325,000.

Future loss of earning capacity 395The plaintiff made an initial claim in the sum of $619,331 for future loss of earning capacity, which was based on a projection of an assumed loss of $750 per week net over the remainder of her working life. However, in the plaintiff's final submissions this component of the claim was reduced to an amount of $495,465. 396The basis of the plaintiff's revised submission was an assumption that the plaintiff has lost two-thirds of her pre-accident earning capacity. The plaintiff submitted that the appropriate background economic yardstick was average female weekly earnings of $1159 per week gross, or $910 per week net. Two-thirds of that sum is roughly $600 per week net. The projection of that amount at 5 per cent over a submitted remaining working life of 49 years (x 971.5) less 15 per cent for vicissitudes, yields the amount of $495,465. 397Before determining the appropriate approach, it must be recognised that the plaintiff's future economic loss submission contained a flaw to the extent that it assumed a normal retirement age of 68 years, when in fact the present conventional assumption is 65 years, which requires a different multiplier for 46 years rather than 49 years (x 956.1). Earlier public announcements concerning a proposed delay of the retirement age in the workforce have not yet found their way into legislation. Accordingly, the plaintiff's adjusted submission, including a 15 per cent discount for vicissitudes, becomes $487,611. 398In final submissions, the defendant conceded that the plaintiff should be awarded an amount of damages for impairment in her future earning capacity. However, in contrast to the plaintiff's submissions, the defendant variously submitted that such an award should be in the buffer amount of $50,000 or $75,000, including provision for future loss of superannuation. 399The question that arises is whether damages for future loss of earning capacity should be assessed on the basis of a mathematical projection, which involves a consideration of the requirements of s 126 of the MAC Act , as was contended on behalf of the plaintiff, or whether such damages should be assessed in the form of a lump sum buffer. 400In either case, there are considerable uncertainties that face the plaintiff's economic future, and there are a number of imponderables that must be taken into account, both in the determination of the appropriate method for assessment, and in relation to the assessment of a proper sum for this head of damage. 401The argument in favour of the approach advocated by the defendant, essentially, is that the assessment of future loss of earning capacity is hampered by the plaintiff's decision not to pursue studies whilst this case is pending, and in the meantime the plaintiff has demonstrated a capacity for full time work in a cake shop, in accordance with her pre-injury potential. The defendant argued it was appropriate that an allowance should be made for some degree of loss of earning capacity over the forthcoming 5 years, by which time it was assumed that the plaintiff's psychiatric symptoms would have reduced, and her earning capacity would have commensurately increased. The defendant ultimately submitted that a buffer of $50,000 should be awarded along the lines of State of NSW v Moss [2000] NSWCA 133, and the cases which followed that authority to the same effect. The amount of $50,000 was submitted to be the equivalent of a loss of $250 per week projected over 5 years, and including an allowance for loss of superannuation. 402In contrast, in essence, the argument in favour of the approach to assessment argued on behalf of the plaintiff is that as a young person with impaired earning capacity, the proper approach would be to have regard to average female weekly earnings, along with an assumption that the plaintiff would have rapidly moved into this level of earnings, together with the assumption that the plaintiff would probably have engaged in some part-time tertiary studies which would have served to improve her position. 403On that approach, on behalf of the plaintiff it was further argued that the extent of the plaintiff's impairment with regard to her earning capacity was substantial, and justified an impairment equivalence of two-thirds loss of earning capacity. 404In my view, for the reasons that follow, the approach to assessment suggested by the plaintiff is to be preferred. 405First, the plaintiff is at the threshold of her adult and working life, and carries significant and serious physical and psychological disabilities of a permanent nature which adversely affect the range of work duties she will be able to carry out. As those problems show no signs of abating, I consider that a more mathematically justifiable award of damages for future loss of earning capacity should be undertaken rather than a more general buffer approach. 406Secondly, as the plaintiff has not really exercised a full earning capacity as an adult, and she has been deflected from achieving her potential at school as a result of the accident, thereby lessening her chances for acquiring skills through higher tertiary education, I consider that a community average approach should be adopted as the more appropriate basis for quantifying her loss, than a more general buffer amount. 407Thirdly, accepting that the plaintiff had a higher potential than she has in fact achieved in her secondary education, and accepting that she reasonably aspired to high achievement in her future employment, I consider that the yardstick of average weekly female earnings is a more appropriate economic yardstick than a general discretionary sum that would ordinarily form a buffer amount. 408Fourthly, in this case I consider that average female weekly earnings is more likely to represent the plaintiff's most likely future working circumstances, which justifies the use of those published earnings as submitted by the plaintiff, as the basis for assessment. 409Having identified these findings, it is necessary that I also identify the percentage adjustment that reflects the possibility that the events concerned, namely the impairment of the plaintiff's earning capacity, might have occurred in any event but for the injury which is the subject of these proceedings: s 126 of the MAC Act . 410In my view there was very little prospect of substantial adverse impairment to the plaintiff's earning capacity absent the occurrence of the accident. In those circumstances, I see no reason to adjust the award of damages for future loss of earning capacity by any percentage greater than the conventional 15 per cent on account of possible adverse vicissitudes. 411In order to identify the reasonable and proper sum to be awarded for this head of damage it is necessary to review the medical and allied evidence in order to assess the plaintiff's own evidence on the issue. 412I now turn to an examination of the medical and allied evidence that touches upon the issue of future loss of earning capacity, starting with the defendant's experts. 413The defendant's experts provided little in the way of commentary on the issue of the plaintiff's future earning capacity. On 22 March 2010, Dr Marsh, an occupational physician, noted the plaintiff was able to undertake part time work serving in a patisserie. He took a history of lower back pain in the central lower lumbar region, since the accident, including when standing for a long time. 414On the issue of fitness for work, Dr Marsh expressed the following opinion: "The Claimant is still a student undergoing Year 12 leading to HSC at the end of the year. I consider that she is generally fit for studies. One of her subjects is Dancing and this has been curtailed somewhat because of increased pain over the scalp wound on excessive activity and to a lesser extent pain in her low back area. I have suggested that when she finishes her studies, including any tertiary education, she may need to avoid any work activities which involve heavy physical activity because of these residual symptoms. She should avoid work which would require repetitive or heavy lifting, pushing or pulling." 415Dr Marsh's opinion on the prognosis for the plaintiff's low back condition was that it would settle with time and appropriate exercise. No time frame was proffered for such settlement of symptoms to occur. It had not settled at the time of the trial. In light of that fact, I consider that Dr Marsh's opinion has to be weighed alongside the opinion of Dr Conrad concerning any physical limitations arising from the plaintiff's back condition. 416The 29 May 2011 report of Dr Bogan, a psychologist, made limited reference to the issue of loss of earning capacity. In this regard Dr Bogan stated: "In my opinion Nicki-Lea was capable of doing further study, possibly at TAFE and working on a full-time basis. She had indicated she was interested in doing a pastry chef course and I suggest this would be appropriate for her at this stage. Again this goal was within familial expectations. I noted her brother began an apprenticeship as a motor cycle mechanic although discontinued and her sister worked as a pharmacy assistant although was now unemployed. The results of the current assessment on the WMS-III revealed Nicki-Lea was experiencing some memory problems. However, I would be of the view that this was a result of her depressive symptoms and not from any memory impairment per se. There is convincing evidence in the psychological literature that memory can be affected by depression. In this regard I agree with the statement by Dr Lorentz that any impairment of her memory, concentration and general performance was likely to be due to her psychological symptoms and not to any organic brain impairment." 417In my view, the problem with accepting the opinions of Dr Marsh and Dr Bogan is that because of the timing of their reports, they have no regard to the plaintiff's post-school work expectations, and insofar as Dr Bogan has suggested the appropriateness of a pastry chef course for the plaintiff, this is not something the plaintiff had a desire to do because of the uncongenial hours this work entailed as was explained in her evidence. She also stated, and I accept, that work was not the employment that she envisaged for herself. 418A further problem with those opinions is that insofar as they are dependant upon assumptions concerning continuation of symptoms, caution should guide the consideration of such optimistic conclusions in one so young where those conclusions are based on generalised statements without specific reasoning linked, in this context to the detail of job descriptions and the duties involved in those jobs. 419I now turn to consider the plaintiff's reports for guidance on the issue of future loss of earning capacity. 420The reports from the Westmead Paediatric Brain Injury Unit, and from the treating clinical psychologist Ms Beall, made no specific reference to issues concerning the plaintiff's ability to undertake work. That is not a remarkable position as those reports were not proffered as final assessments. 421The report of Dr Lorentz dated 18 January 2011 expressed the view that on the issue of the plaintiff's fitness for work, and in the context of the plaintiff suffering from PTSD, the plaintiff would not be able to cope with stressful situations. Dr Lorentz did not qualify that opinion as having a specific or approximate limiter in time. 422In his report dated 19 January 2009, on the issue of the plaintiff's fitness for work, Dr Parmegiani expressed the following opinion: "Ms Emvalomas' academic performance deteriorated following the motor vehicle accident. She worked part-time on Saturdays at a cafe, near her home. Ms Emvalomas' poor concentration could have a significant impact on her career, and future employment opportunities. The need for specialist psychiatric or psychological treatment therefore becomes paramount. If Ms Emvalomas' concentration does not improve, she will find it difficult to gain entry to tertiary courses." 423I interpolate by way of inference from Dr Parmegiani's last cited comment that if the plaintiff were to find it difficult to gain tertiary entrance on account of problems with concentration, the same considerations would apply to any form of employment. It is difficult to envisage any paid employment that does not require an employee to maintain concentration on the tasks at hand. 424It is significant to observe that at the time Dr Parmegiani expressed that initial opinion, the plaintiff's PTSD had not yet been described by him as being chronic, as occurred subsequently, no doubt contributed to by the fact that earlier treatment was unavailable to her for that condition. 425On 19 January 2011, Dr Parmegiani again addressed the question of the plaintiff's fitness for work in the following terms: "Ms Emvalomas found it difficult to interact with others. She was depressed, irritable, withdrawn and emotionally labile. Her concentration was impaired. She did not leave her home without a support person, due to anxiety. She found it extremely difficult to cross roads on her own. Ms Emvalomas was able to complete her secondary education in 2010, suggesting that she had retained some capacity for productive activities. She would find it difficult at present to work more than 20 hours per week, due to her psychiatric symptoms. Any work opportunity would need to take into account her reduced capacity to travel, and difficulties relating to others." 426The context of that opinion concerning the plaintiff's psychiatric symptoms was that by that stage, the plaintiff's PTSD had become chronic. 427Relevantly, Dr Parmegiani expressed no qualifying limiter to the opinion I have cited. Insofar as he expressed a view as to an assumed ability in the plaintiff to work up to 20 hours per week, the terms and the basis for that view requires evaluation. Implicit in that opinion was the impression that the plaintiff would have some difficulty working up to the level of the 20 hours marker that he identified. His opinion was anchored in time as at January 2011 in the face of psychiatric symptoms that have shown no signs of abatement, and where there is no indication from within the medical opinions tendered which suggests that in the future the plaintiff will experience a significant lessening in symptoms over time. It is not open to a court to speculate, without a reasonable basis from within the evidence, or to infer that a level of improvement might occur to the extent of creating an increased earning capacity: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. 428This analysis leads me to the view that Dr Parmegiani has been too optimistic in nominating 20 hours per week as the possible extent of the plaintiff's future work capacity. This may have arisen because, as he has stated, he has limited his analysis to the psychiatric issues, whereas the physical disabilities also touch upon the plaintiff's future earning capacity and also require consideration. 429In turning to those physical issues, it is relevant to note that in his report dated 18 February 2009, Dr Fry expressed the view that the plaintiff's scarring should not have any significance on her education including playing sport or her employment possibilities later. I consider that opinion to be of only limited assistance in determining the extent of the plaintiff's limitations for her earning capacity because it was expressed in only general terms, and he was primarily considering the cosmetic considerations and that opinion has not been borne out over the period of time that has passed since it was given. 430In his report dated 23 March 2010, on the issue of the plaintiff's future working capacity, Dr Conrad expressed the following opinion: "With regards to her future capability it is unlikely that she will be able to do fullon (sic) dance choreography due to her injuries. With regards to future work capability she will be able to do light work only in a position where she is able to stand or sit at will and not lift anything more than 5kgs in weight and not do an excessive amount of standing or walking. Her prognosis is uncertain." 431In my view, these statements by Dr Conrad represent very significant limitations placed on the future earning capacity of a person as young as the plaintiff. 432In his report dated 8 February 2011, Dr Conrad updated his opinion on the limitations he thought should be placed on the plaintiff's future work as follows: "With regards to her work capability, she certainly would not be able to do fullon (sic) dance choreography or similar work with regards to her ability to work as a chef, she would be able to do about 15 to 20 hours per week, in a position where she is able to stand or sit at will and not lift anything more than 5kgs in weight and not do repetitive lifting or bending." 433It is significant to note that insofar as Dr Conrad identified an assumed capacity to undertake limited work for about 15 - 20 hours per week, this was in connection with the proposal that she work as a chef. That opinion was expressed without any statement of understanding what detailed physical tasks were involved in that work. That opinion must also be read in conjunction with the psychological limitations expressed by Dr Parmegiani, including the limitations on the plaintiff's ability to cope with stress and to interact with others. It is reasonable to assume that the work of a chef working under pressure of time constraints, would involve significant stress. 434The combination of views from within the medical reports leads me to the view that an assessment of the extent of impairment of future earning capacity does not just simply involve a comparison of normal working hours and the 15 - 20 hour recommendations of Dr Parmegiani and Dr Conrad. The exercise also involves the limitations on physical duties and issues relating to how the plaintiff would cope with stress. 435The task of assessing future economic loss in motor accident cases is governed by the terms of s 126 of the MAC Act , which is not a code that covers all aspects of the exercise, but is one which also involves the application of general law principles of assessment: Amoud v Al Batat [2009] NSWCA 333, per Basten JA at [23] - [28]. 436In the present case, unlike the position in Amoud , the plaintiff had no pre-injury vulnerabilities or limitations of a physical or psychological nature that would have operated to limit her future capacity to earn. 437Here, the plaintiff's impairment in her earning capacity has its origins in the profoundly deleterious psychological effects the accident had upon her and upon her attitude to life, self-worth and the completion of her schooling. 438In the present case, the accident has had a triple adverse impact on the plaintiff's earning capacity. First, it has adversely affected her attitude to the completion of her high school education on account of concentration and other psychological issues already identified, and which has been followed by results that were less than would otherwise have been expected in a well-motivated student who had shown an ability and willingness to apply herself. Secondly, the effects of the accident, and the plaintiff's relatively low UAI grading, have reduced her chances of placement into tertiary studies, which if successfully completed, would have been likely to better position the plaintiff for skilled work requiring training, as distinct from relatively unskilled work. Thirdly, upon those baselines, the accident has superimposed upon the plaintiff the added burden of having to cope with physical limitations that govern the potential array of work she could attempt to sustain, as well as the burden of her psychological difficulties which operate as a significant limiting force on her ability to cope with interpersonal and stressful situations in a normal manner, as would have been the case if she had remained uninjured. 439It is necessary to determine the plaintiff's most likely circumstances were it not for the effects of the accident: s 126 of the MAC Act . 440Uninjured, I consider it is reasonable to assume that the plaintiff would have had an unfettered ability to compete for, gain and sustain employment on the open labour market, either with or without tertiary qualification, and as such she would only have been vulnerable to the standard vicissitudes that any employee faced in the workforce. 441Furthermore, with proficiency and dedication to her art of dancing, uninjured the plaintiff would have been well placed to seek out either additional or substantive work in that field involving dancing, as was her stated pre-accident ambition. 442In addition, the plaintiff, like two of her uncles, could have aspired to tertiary qualifications in professions, also in accord with her stated ambition for high achievement, as was stated by her sister in evidence that was unchallenged. In that regard, an assessment of future work prospects is not just limited to the experience of siblings without an explanation that comes from specific inquiry as to the reasons for the more limited work pursuits and the experiences of siblings in the workforce. 443As a result of the plaintiff's relatively young age and an absence of adult work experience before the accident, the foregoing matters, which involve necessary s 126 considerations, involve many imponderables in an inquiry as to what would have been the plaintiff's most likely circumstances. 444Nevertheless, it seems clear that those prospects should not be assessed as being pegged to the plaintiff's earnings from her employment in the cake shop as that is a much lesser aspiration than was her potential in an uninjured state. 445Instead, since the plaintiff will have significant restrictions on her earning capacity over her entire working life, in the absence of an adult uninjured industrial history, the plaintiff's submission adopting average female weekly earnings is a reasonable one in this case. I therefore accept the submission that as a young woman with aspiration, with a proven ability to dedicate herself to tasks, as can be inferred from her pre-injury attention to the requirements of her dance studies and activities, and her grades in Mathematics, it is reasonable to assume that she would have progressed to at least average female weekly earnings, at a relatively early age, especially if she managed to gain tertiary qualifications. Recognising that the measurement yardstick being considered here is in effect an average over her working life, I accept the submission that the fair basis for background measurement to be adopted in respect of the plaintiff's pre-accident earning capacity is $910 per week net. 446The next question that arises is that of determining the appropriate proportion of that amount which fairly represents the plaintiff's loss of earning capacity. 447Having due regard to the considerations I have already cited at paragraphs [326] - [371] and [381] - [388] of my reasons, and which I consider to operate as a substantial impairment of the plaintiff's ability to exercise her earning capacity, I consider that the proportion submitted on behalf of the plaintiff is an appropriate one, and should be accepted as reasonable in this case. This identifies the rounded down amount of $600 per week net as representing the plaintiff's loss of earning capacity over her remaining working life of 46 years to age 65 years. 448In these modern times, prevailing economic factors are to be considered where community attitudes to work and to retirement age should not unduly discriminate between men and women. I consider that a projection of the plaintiff's loss to age 65 is reasonable. Furthermore, having regard to changing community standards, where childcare is either paid for or shared, and where it is no longer the norm that women stay out of the workforce in order to raise children, I do not consider that a greater than usual discount for vicissitudes should be applied to the required projection, and I propose to apply the conventional discount of 15 per cent. There is no need for a greater discount on account of possible childrearing as a potential source of reduced earnings as the female rates already incorporate that factor. 449The projection of $600 per week net at 5 per cent over 46 years (x 956.1) less 15 per cent for possible adverse vicissitudes yields the sum of $487,611. 450I therefore assess the plaintiff's damages for future loss of earning capacity in the amount of $487,611 .

Future loss of superannuation 451Applying the conventional calculation of future superannuation losses, 11 per cent of $487,611 the assessed loss of future earning capacity, yields an amount of $53,637. This sum has already been discounted for vicissitudes. I therefore assess the plaintiff's damages for the value of her future superannuation losses in the amount of $53,637 .

Future domestic assistance 452The plaintiff made a claim for the cost of future domestic assistance on a paid basis. That claim was in the submitted amount of $289,604, which was based on the projection of the cost of 7 hours per week of such assistance at $40 per hour, or $280 per week, over an assumed life expectancy of a remaining 70 years, undiscounted. That submission requires a slight adjustment for a different life expectancy assumption of 69 years, which yields an adjusted submission of $289,100. 453The plaintiff also made an alternative claim, based on the opinion of Dr Parmegiani, for the value of 10 hours of domestic assistance per week at the submitted statutory rate of $24 per hour for the time, submitted to be for the " next few years ", during which the plaintiff would be likely to remain at home, and whilst her mother continued to provide her with domestic assistance. That alternative submission was made on behalf of the plaintiff to accommodate the principles identified in Miller v Galdarisi [2009] NSWCA 353, as was relied upon by the defendant. 454In contrast, the defendant submitted that there should be no award of damages for this head of claim. 455The defendant's position on this issue was in part based upon the opinions of its medico-legal expert, the psychologist, Dr Bogan, who was of the opinion that the plaintiff did not require domestic assistance. Dr Marsh expressed no views on this issue. The defendant's occupational medicine expert, Dr Marsh, offered no opinion on the plaintiff's need for domestic assistance. This appears to be because he was not asked a relevant question on that issue, and he therefore restricted his fitness commentary to the question of the plaintiff's capacity for work. 456The defendant's position on whether the plaintiff needed future domestic assistance was also partly based on the proposition that the activities of a domestic nature for which the plaintiff presently receives the gratuitous assistance of her family, principally her mother, does not meet the threshold for assessment as is required by s 128(4) of the MAC Act because such assistance is provided for less than 6 hours per week. The defendant further submitted that as the plaintiff would be living at home for the foreseeable future, it must be assumed that the plaintiff's mother would continue to provide such assistance at the level below the assessment threshold, thus precluding any award for damages for domestic assistance: Miller v Galdarisi . 457Having considered the submissions against the evidence I have concluded that the defendant's submission should be rejected on a number of grounds. These are first, because of the evidence of Dr Parmegiani and Dr Conrad, which is uncontradicted, and which indicates that such assistance is required from both the physical and the psychological perspectives, and secondly, because in my view the assumptions made by the defendant to the effect that the plaintiff is likely to remain at home and will continue to receive sub-threshold levels of domestic assistance, are untenable. I shall return to these topics after considering the detail of the recommendations supporting the need for domestic assistance, as appears in the medical evidence. 458In undertaking that consideration, it is apparent that not all of the expert evidence tendered by the plaintiff was supportive of this component of the claim. 459In this regard, in his report dated 18 November 2011, Dr Lorentz expressed the opinion that the plaintiff was not in need of future domestic assistance. In a further short report of the same date, Dr Lorentz observed that the plaintiff had some minor limitations in the performance of a few activities of daily living, especially in cold weather. In my view that opinion should be discounted because in his 2009 report, Dr Lorentz was not asked to address this question at all, and made no mention of it. The first time it arose in his consideration was in his report dated 18 January 2011, in which he only made the following simple statement, without further reasons: "There is no need for future domestic assistance, but there has been some assistance needed for the first three months following the accident." 460When Dr Lorentz's reports are examined to determine whether he had identified a cogent factual basis for such a conclusion, it seems to be that such a basis is entirely absent, which in my view entirely undermines the utility of his report concerning this component of the claim. 461In the first report by Dr Lorentz dated 20 January 2009, the subject of domestic assistance is not canvassed at all. In his second report of the same date, which was primarily concerned with an assessment of Whole Person Impairment in the plaintiff, the only mention of anything near relevant to domestic assistance was his statement that the plaintiff's scalp scar itself had only negligible effect on any of her activities of daily living. 462In examining Dr Lorentz's report dated 18 January 2011, it is apparent that he had been provided, amongst other things, with copies of reports from Dr Parmegiani and Dr Conrad, each of which contained specific recommendations for the provision of domestic assistance on a reasoned basis. It is significant to note that in the section of this report, which dealt with matters of history and findings on his examination of the plaintiff, Dr Lorentz noted that the plaintiff was " rather sulky and tearful ". 463That observation, together with the fact that he has not at all canvassed the question of the plaintiff's domestic activities, either from the viewpoint of her ability or inability to carry out such activities, or from the viewpoint of whether she was in fact receiving any assistance in that regard, and if so to what extent and why, leads me to conclude that there is insufficient reasoning evident within the opinions of Dr Lorentz for them to be relied upon in assessing the plaintiff's need for future domestic assistance. I consider that my view to this effect is reinforced by the fact that Dr Lorentz did not engage with the contrary opinions of Dr Parmegiani or Dr Conrad when he dismissed the question of whether the plaintiff required domestic assistance. 464Furthermore, although the plaintiff makes no claim for past domestic assistance, it is difficult to find a basis within the evidence for Dr Lorentz's view that some assistance would have been required for only the first 3 months after the accident, when that view was formed on his second assessment which was over 3 years after the event, where his first assessment was 14 months after the event, and where none of his reports canvassed any issues relevant to the matter under present consideration. 465For the above reasons, I see no sound rational basis for accepting the views of Dr Lorentz on the subject of the plaintiff's need for future domestic assistance. 466Before leaving this part of the analysis, I observe that this is a frequently recurring phenomenon in this court, where, in circumstances where there is a significant monetary issue at stake for each of the parties, for apparent expediency, they choose not to call or challenge the content of conflicting medical evidence in the form of reports, and instead choose to simply rely upon the content of reports, which do not withstand critical analysis because of the absence of the reasoning that is required by UCPR Schedule 7, cl 5(a), namely the expert witness code. 467I now turn to an evaluation of the medical and allied reports that support the claim made by the plaintiff for damages for future domestic assistance. 468In his report dated 18 January 2011, having seen the plaintiff on two occasions almost 2 years apart, Dr Parmegiani noted the following: "Ms Emvalomas showered daily, but she did not eat regular meals. Her mother encouraged her to cook at least once per week. Ms Emvalomas did not shop, or travel outside her home without a family member. This would make it difficult for Ms Emvalomas to live independently. Allowance should be made for up to 10 hours per week of domestic assistance. Her mother currently provided domestic support. Ms Emvalomas' need for domestic assistance will continue in the short to medium term, possibly for up to two years. It is difficult to make longer term predictions." 469Consistent with the basis for Dr Parmegiani's view on the need for the plaintiff to have domestic assistance, Dr Synnott gave as one of his reasons for diagnosis of the plaintiff's chronic PTSD, some concerns over the plaintiff's self-care and personal hygiene, as follows: "Not attending to diet, washing and feeding as well as she should - needs to be prompted by mother. Could not live independently." 470Dr Synnott did not place any qualifying time limiter on that opinion, which was part of his assessment of the plaintiff's Whole Person Impairment. 471From a purely physical perspective, and concerning the activities of daily living, in his report dated 8 February 2009, Dr Fry observed that on account of the scarring to her scalp, the plaintiff had to be careful with the way in which she managed her hair, but he did not otherwise address the issue of the need for domestic assistance. 472In his report dated 22 February 2009, Dr Ratcliffe noted that the plaintiff's mother has largely abandoned serving the plaintiff foods that she found difficult to chew. In the assessment and opinion section of his report, Dr Ratcliffe confirmed the plaintiff had a disability that comprised a reduced ability to masticate. Neither the plaintiff, her sister or her mother were asked questions aimed at elucidating what additional time, if any, was taken up with the procurement or preparation of special food that reduced or accommodated the plaintiff's problems with chewing certain foods. 473In his report dated 23 July 2009, Dr Evans noted that the plaintiff's impairments were the cause of " more than a minor limitation in the performance of some activities of daily living ". No further comments were made concerning this issue. It appears from his report that he was not asked to consider the question of whether, and if so, to what extent, the plaintiff required future domestic assistance. 474In his report dated 23 October 2010, Dr Conrad expressed the opinion that if parental assistance was not available to the plaintiff with housework and home maintenance, she might need about 6 hours per week of home care assistance. In his subsequent report dated 8 February 2011, Dr Conrad repeated his earlier expressed view that about 6 hours per week of home care or domestic assistance may be required, related to the heavier aspects of housework and home maintenance, without reference to the additional avenues of assistance identified by Dr Parmegiani concerning leaving the house without the assistance of a family member. 475The basis of Dr Conrad's opinions in this regard was the view he had earlier expressed concerning the plaintiff's need to avoid prolonged standing, lifting anything heavier than 5kgs, and avoiding repetitive lifting or bending. It seems to me that the heavier forms of housework would fall within that category of tasks he recommended that the plaintiff avoid. 476A significant matter that emerges from a comparison of the respective opinions of Dr Conrad and Dr Parmegiani is that they have each focussed upon their own particular fields of expertise without cross-over in their respective consideration of future domestic assistance recommendations. 477In that regard, it is clear from reading Dr Conrad's reports that he had stated his future domestic assistance recommendations on the basis of matters of physical disability alone, and where he noted that the plaintiff's parents did most of the housework, cooking and cleaning. Reasonably, and in conformity with the limitations of his specialty, he did not address the psychosocial issues that were considered by Dr Parmegiani. 478It is also similarly plain from reading the reports of Dr Parmegiani, that he has, also reasonably, restricted his focus to the psychiatric sequelae of the plaintiff's injuries. However, insofar as Dr Parmegiani has referred to an anticipated difficulty for the plaintiff to live independently, his estimated allowance for up to 10 hours per week must be assumed to include the physical tasks that Dr Conrad had in mind when he stated his recommendation. 479In answers to questions raised in cross-examination, the plaintiff stated that she does not make her bed because she does not feel the need to do so, she does not cook and she barely eats the meals that are prepared for her by her mother. Unlike her sister, she does not do any of the housework. She said that she was not physically capable of vacuuming and hanging out the washing. She explained that when standing and stretching out to hang the washing with her arms above hear head, she experiences back strain, even when standing there. 480The plaintiff's mother stated that she did not believe the plaintiff had yet " got her head around everything at all, or anything at all ". From the context, which was treatment for her psychological symptoms, I took this to mean that the plaintiff had not made a good adjustment to her post-accident problems, which seems to be in keeping with the medical formulation of chronic PTSD. 481The plaintiff's sister described how the plaintiff spends a lot of her time in bed every day. She described the plaintiff as making little effort with her clothing and her appearance, and how she presented to people, which is a change from how the plaintiff used to conduct and take care of her appearance. She described the plaintiff as " not the same person " after the accident. 482Following the foregoing analysis, I have concluded that I should accept the plaintiff's claim for future domestic assistance based on my acceptance of the evidence given by the plaintiff, her mother and her sister, including the summarised histories set out in the various reports, together with acceptance of the medical evidence which supports that claim as cited above. 483Before undertaking the required assessment of hours, there is a further substantive question that remains to be addressed, namely the period during which the plaintiff is likely to remain at home before she eventually decides to move out and seek to make a life for herself independently of her parents, notwithstanding her evidence in which she has stated that she will be at home for the foreseeable future. 484In my view, the plaintiff's evidence that she intends to remain living at home for the foreseeable future is not necessarily the end point of the analysis of the claim for future domestic assistance, as is implicit in the defendant's submissions. 485The fact that the plaintiff needs prompting with matters of hygiene, eating, making her bed, and also needs to be accompanied when leaving the house for significant outings are all accident created needs. The defendant cannot avoid liability in damages by simply stating that the burden of the need so created, will continue to be borne by the plaintiff's mother, especially where that was not a matter relevantly canvassed in her mother's evidence. In my view, in those circumstances, it would be unreasonable to assume that the plaintiff's mother would continue to do so, and in effect, continue to " parent " her adult daughter in circumstances where the plaintiff is resistant to such interference. 486Furthermore, I consider that at age 19 years and affected as she is by chronic PTSD and depression, the plaintiff is not in a reasonable position to make an election for " the foreseeable future ", of the kind the defendant here relies upon. She does not yet have the maturity of years to give a reliable indication of that nature, and the issue was not relevantly explored through the evidence of the other stakeholder whose complicity is also required for the foreseeable future, in order to make good the defendant's assumed position on this point. Absent a clear indication from the plaintiff's mother assenting to the defendant's proposition, I do not consider that the single facetted concession obtained from the plaintiff on this issue forms a reliable basis to assess damages for her need for future domestic assistance. 487Historically and socially, the ordinary expected course taken by young adults in the community is that they leave home and live independently of their parents. Relevant to this question, is an assessment of the likelihood that the parental home will continue to be the place where the plaintiff lives. This question arises for a number of reasons. 488I have already identified the ordinary expectation that young adults will make their way independently in life. Additional factors are firstly, that the foreseeable future as contemplated by the plaintiff when giving her answer could not have included the contemplation that she would be successful in securing a substantial award of compensation in this case, which carries with it a reasonable expectation that following that award, she could obtain her own accommodation, either as a rental or a purchase, it matters not which for the purpose of this analysis. 489Further, with provision being made for the plaintiff's needs in the form of an award of damages, her parents may not be prepared to continue to provide the assistance which they have hitherto provided gratuitously to their own detriment in order to continue to meet an accident caused need in the plaintiff. In that regard, this is an example of a vicissitude that could adversely impact upon the defendant. 490These considerations involve some imponderable matters as to when the plaintiff might leave home to seek, or be encouraged to seek, a life independent of her parents. In that regard, although this question is to a degree speculative, I consider that it is more probable than not that as an intelligent person, with a sense of her own dignity and privacy, within the next few years, the plaintiff will take such steps, especially as she is likely to have the financial means to do so. At the age of 19 years, the question is when will this be likely to occur. There is no direct evidence to assist in answering that question. Recognising that the resolution of that issue is to a degree arbitrary, I consider it is more probable than not that by the age of 25 years, the plaintiff will be living independently, and until then it is likely that she will continue to live at her parental home, as she does at present. I consider that period to be a safe and reasonable assumption to make as to the " foreseeable future " that based the defendant's question of the plaintiff. 491In light of that finding, a two-stepped approach is required to the assessment of damages for future domestic assistance, namely for the next 6 years, and then the further 63 years that would ordinarily follow. 492In respect of the second of those periods, given the plaintiff's chronic psychological problems, it cannot be reasonably concluded that she is likely find a partner who will provide her with the required domestic assistance on a gratuitous basis. Accordingly, in respect of the first period of 6 years, I propose to assess damages for domestic assistance at the rate prescribed by s 128(4) of the MAC Act , and in respect of the second period, at the commercial rate submitted on behalf of the plaintiff, namely $40 per hour, a rate commonly seen in such cases, but discounted for deferral of loss for 6 years. 493The final matters to be identified before undertaking the required calculations is to state the finding as to the number of hours of such assistance in respect of each of those periods. On the state of the evidence, I propose to adopt a lifetime average figure, which, whilst not a true average of the respective estimates put forward by Dr Conrad and Dr Parmegiani, is somewhere between those two estimates, and which recognises that something more than Dr Conrad's estimate of 6 hours per week is required because he focussed just on the physical aspects and not the psychological ones that Dr Parmegiani clearly had in mind when he put forward his higher estimate. 494The domestic assistance provided to the plaintiff to date and described by the plaintiff and her mother in evidence, and those summarised in the medical and allied reports, have not been quantified in terms of hours per week. If that evidence were the only evidence touching upon this issue, there would be a difficulty making an assessment of this head of damage by reference to the number of hours per week that should be the subject of an allowance. However, in my view, the estimates put forward by Dr Parmegiani and Dr Conrad offer a sufficient insight to enable a finding to be made in order to form the basis for assessment. 495When Dr Parmegiani made his recommendation of up to 10 hours per week for domestic assistance, he had in mind a period in the short to medium term, possibly up to 2 years and he stated there was a difficulty in making longer term predictions. 496That said, the plaintiff's PTSD condition has not improved, the medical opinions do not suggest an improvement or remission of symptoms in the short to median term, or at all. In fact Dr Synnott's opinion does not suggest significant improvement. In those circumstances, I consider that there is little or no room for optimism concerning a revival of the plaintiff's ability to care for herself and go for significant or frequent journeys outside the house unaccompanied. I consider that a much longer term lifetime view than the next 2 years or so is required on the evidence in this case. 497In undertaking that balancing assessment exercise, I have selected as reasonable and fair to both parties, 7 hours per week, which exceeds the threshold identified in s 128(3) of the MAC Act . I now proceed to make the required calculations. 498For the next 6 years, at the correct s 128(4) statutory hourly rate of $25.65, the calculation of the value of 7 hours per week of domestic assistance, namely $179.55 per week, projected over 6 years to age 25 years (x 271.4) yields the amount of $48,729. I do not propose to discount that amount on account of any vicissitudes in recognition of the possibility that following the receipt of compensation, the plaintiff may decide to leave home and seek to live independently before 6 years have elapsed. 499For the ensuing 63 years, the calculation of the value of 7 hours per week of domestic assistance at $40 per hour, namely $280 per week, projected over 63 years (x 1020) yields the amount of $285,600. I consider that this amount should be discounted on account of the possible vicissitude that the plaintiff might in fact find a partner, which may operate to a degree to lessen the extent of the defendant's burden in respect of this head of damage. I consider that the appropriate discount should be assessed at 15 per cent. Applying that discount, the resultant calculation for this component is reduced to $242,760. That amount needs to be deferred on the 5 per cent tables for 6 years (x 0.746) to yield $181,098. 500The two components, when combined, produce a total amount of $229,827, which I consider to be the proper sum to compensate the plaintiff for her need for future domestic assistance. 501I therefore assess the plaintiff's damages for future domestic assistance in the amount of $229,827 .

Future treatment 502On behalf of the plaintiff, a claim was made for future out-of-pocket expenses for treatment and management of the plaintiff's accident related disabilities, in the submitted sum of $50,000, in the form of a buffer amount. 503That sum was submitted by the plaintiff to be an appropriate allowance for the cost of future treatment recommendations and needs, including for the management of the plaintiff's chronic PTSD condition, possible revisionary plastic surgery for the abdominal or groin scar, dental and allied treatment for temporomandibular problems, recommended physiotherapy, and the cost of painkilling medications 504In contrast, on behalf of the defendant, it was submitted that any allowance for future out-of-pocket expenses should be in the more limited sum of $10,000. 505That amount was submitted by the defendant to represent a buffer to make allowance for the cost of future counselling sessions recommended by Dr Parmegiani, the cost of future painkilling medication, an allowance for the possibility that the plaintiff may review her stance on taking anti-depressant medication, the cost of occasional visits to a general practitioner, and the cost of an exercise programme as was recommended by Dr Marsh. 506Following a review of the medical evidence concerning the recommendations made by those practitioners who have assessed the plaintiff's future treatment needs, and having reviewed the plaintiff's circumstances, it is plain from the state of the evidence that the cost of those needs is not capable of precise formulation, which indicates that the allowance of a buffer amount is the correct approach. After considering the relevant elements that should be allowed for future treatment expenses, in my view the appropriate buffer amount should be assessed in the sum of $30,000. 507In testing that sum, I have identified the following elements that I consider should reasonably be included within the buffer I have allowed. 508First, with regard to the abdominal scarring, Dr Fry has suggested revision of the abdominal scar in the amount of up to $2500. I consider it is reasonable to allow for the possibility that the plaintiff may decide to undertake this treatment in the not too distant future. 509Secondly, with regard to painkilling medications for the headaches and scalp discomfort she experiences, the plaintiff takes a considerable amount of Panadol tablets on a weekly basis for this. Whilst the advisability of taking such amounts of this medication in the long term was not canvassed in the medical evidence, it would seem reasonable that the plaintiff be allowed something for the cost of such medication. I consider that an allowance of $10 per week should be adequate for this item. The projection of $10 per week at 5 per cent (x 1032.5) yields an amount of $10,325. I would round this amount up to $12,000 to also allow for the possibility that the plaintiff may be prescribed, and would take, anti-depressant medication at various times in the future, as was submitted by the defendant. 510Thirdly, regarding dental work and temporomandibular problems, although the actual treatment cost of addressing these issues has not been dealt with in the evidence, the plaintiff did not have such problems before her accident, and she now has temporomandibular joint pain and problems with her dental occlusion, and related eating problems. Despite the absence of costing for such matters in the evidence, it would seem reasonable to make an allowance for some periodic consultations over and above the cost of dental consultations that would usually be expected to be incurred, together with the cost of nighttime dental occlusal splints. I consider that over the course of the plaintiff's lifetime, a reasonable allowance for these matters would be the rounded amount of $2000. 511Fourthly, regarding general practitioner consultations, although the evidence gives no clue as to a reasonable pattern of consultations or the cost of such consultations, it would appear to be reasonable to make some allowance for this item in view of the pervasive seriousness of the plaintiff's psychological illness. The plaintiff has a chronic PTSD condition with depression. It would be unreasonable to assume that there would not be any medical monitoring and management of that condition over her lifetime. In the circumstances I consider an allowance that approximates the cost of 4 general practitioner visits per annum at an approximate cost of $50 each would be fair. This equates to about $3.85 per week. The projection of $3.85 per week at 5 per cent (x 1032.5) yields an amount of $3975. I consider that over the course of the plaintiff's lifetime, a reasonable allowance for this item would be the rounded amount of $4000. 512Fifthly, regarding future psychological counselling, I consider that there should be an allowance for 2 components for such services. For the short term, Dr Parmegiani has suggested a further 10-15 sessions with a specialist psychiatrist or a clinical psychologist, at a cost varying between $160 to $350 per session, over the course of the next 12 months rather than open ended treatment. Assuming the lesser cost, with a psychologist, it would be reasonable to allow an amount of $1920 for this. In the longer term, given there is a serious psychological illness which has become chronic, in my view, although Dr Parmegiani has stated more detailed ongoing counselling is contra-indicated, it would be unreasonable if no allowance was made for the possible cost of dealing with occasional flare-ups in the ensuing years in response to possible environmental triggers, requiring either further psychological counselling, or the occasional consultations with a psychiatrist. Taking these matters into account, I consider that over the course of the plaintiff's lifetime, a reasonable allowance for this combination of possible expense should be the rounded amount of $5000. 513Sixthly, regarding Dr Conrad's opinion that the plaintiff will need ongoing physiotherapy for her back condition, that opinion was not challenged. I consider it to be a reasonable recommendation in view of the fact that the plaintiff continues to be troubled by back pain as a consequence of her disc problems. Dr Conrad has not recommended any frequency or pattern for his recommendation for physiotherapy. In the absence of specific costing or recommendations, I propose to make a general allowance of $3500 for episodic physiotherapy sessions over the plaintiff's lifetime. 514Seventhly, regarding Dr Marsh's suggestion that the plaintiff's low back problems may benefit from a specific exercise programme. In the absence of specific evidence as to the cost of such a programme, I propose to include an allowance of $300 towards the estimated short-term costs that are likely to be incurred in following that suggestion. 515The total of the foregoing allowances amounts to the sum of $30,300, which I round off into the buffer sum of $30,000. I therefore award the plaintiff damages for her future treatment expenses in the sum of $30,000.

Past out-of-pocket expenses 516The parties have agreed that the plaintiff's past out-of-pocket expenses have been incurred in the amount of $4380. I therefore assess the plaintiff's entitlement to damages for past out-of-pocket expenses in the amount of $4380 .

Summary of damages assessment 517My assessment of the Plaintiff's damages is summarised as follows: (a) Non-economic loss $325,000 (b) Future loss of earning capacity $487,611 (c) Future loss of superannuation $53,637 (d) Future domestic assistance $229,827 (e) Future out-of-pocket expenses $30,000 (f) Out-of-pocket expenses $4,380 Total $1,130,455

Disposition 518The plaintiff is entitled to a verdict and judgment in her favour, in the amount of $1,130,455, without discount on account of alleged contributory negligence.

Costs 519The cost consequence of my findings is that unless either party can establish an entitlement to a different order, the defendant should pay the plaintiff's costs of the proceedings on the ordinary basis, unless otherwise ordered, for which there should be liberty to apply.

Orders 520I make the following orders: (a)Verdict and judgment for the plaintiff in the sum of $1,130,455; (b)The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise entitled; (c)The exhibits may be returned; (d)Liberty to apply on 7 days notice if further orders are required; DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2012