Gordon v Truong; Truong v Gordon

Court of Appeal (NSW)|2014-02-24|Before: Basten JA, Macfarlan JA, Simpson J

Background 60The plaintiff is an Australian citizen, born in Vietnam in 1956. He came to Australia in 1975. Since 1980 he has lived in a de facto relationship with Ms Thi Pham, and they have one child, a son aged 26 at the date of hearing. Ms Pham has two adult sons from a previous relationship. One of her sons (now 41 years of age) has an intellectual disability resulting from brain damage suffered in an accident when he was eight years of age. For some years (prior to 2008) Ms Pham had been in receipt of a carer's pension to enable her to look after her son. She had, however, until 2008, also worked three days per week as a cook in a hotel restaurant. She was able to do this because the plaintiff assisted in looking after her son. As a result of the plaintiff's injury, Ms Pham gave up this employment in order to care for him as well as for her son. 61From his arrival in Australia in 1975 the plaintiff worked in a variety of occupations. In 1983 he opened a restaurant in Sutherland which he operated for about 10 years. 62In 2003 the plaintiff suffered a stroke from which he has substantially recovered. He also suffers from hypertension, gout and diabetes. The gout has been recurrent and has intermittently affected his ability to walk and stand. At times it has been incapacitating and he has required assistance from Ms Pham and their son. A significant issue in the District Court proceedings concerned the extent (if any) to which the plaintiff's pre-injury conditions affected his mobility. The evidence relevant to this issue will be considered in more detail below. 63In 2006 the plaintiff was granted a disability pension. He was still in receipt of that pension in July 2008. In 2007 he sought and was granted a disabled parking permit.

The grounds of appeal 96Although 10 grounds of appeal were pleaded, they were conveniently refined, in the defendant's written submissions, to three categories: (i)failure to keep a proper lookout (grounds 2-5); (ii)failure to use a pedestrian crossing (grounds 6-7); (iii)the respondent's conduct on seeing the appellant's vehicle (grounds 8-9). 97The written submissions filed on behalf of the defendant in respect of the first and second categories depended heavily on what was said to be a finding by the primary judge that the plaintiff did suffer from impaired mobility. Indeed, in respect of the second category, it was put that: "61 The critical point was whether the [plaintiff's] mobility was impaired. Once the Primary Judge found that it was impaired, his Honour erred in failing to find that the [plaintiff] failed to take reasonable care in crossing Regent Street where he did." This betrayed a misreading of the relevant finding of fact. 98I will deal with the proposed grounds in a slightly different sequence than stated above. (ii) Failure to use a pedestrian crossing 99In the written submissions filed in this Court on behalf of the defendant, it was acknowledged: "It may have been reasonable for a pedestrian whose mobility was unimpaired, to cross Regent Street where the respondent did. There was an opportunity to use the painted median area in the centre of Regent Street as a 'pedestrian refuge', if traffic approached. The crossing could be completed in two stages, if necessary." (underlining in original) This reflected the position taken in the District Court - that is, that it was the (asserted) impaired mobility of the plaintiff that made crossing Regent Street other than at a pedestrian crossing unsafe. 100The submissions that followed proceeded on the basis that the primary judge had found as a fact that the respondent's mobility was impaired. This was not so. The primary judge, in fact, found to the contrary, as set out above. 101In oral submissions, the ground shifted somewhat, to the proposition that the plaintiff suffered from "restricted agility", and that, therefore, he ought to have used the pedestrian crossing some distance away in Lee Street. There is, in my opinion, little difference between "impaired mobility" and "restricted agility". To the extent that there is a difference, the new position adopted by the defendant is a departure from the way the case had been conducted in the District Court, and should not now be allowed. In support of the proposition that the plaintiff suffered "restricted agility", senior counsel relied on the evidence given by the plaintiff concerning what happened after he first saw the defendant's van, that he had turned 180 degrees because he could not step backwards. This was the only evidence of restricted agility on the part of the plaintiff. He is restricted in stepping backwards. There was no reason why he should not walk forward, as he intended to do when he left the kerb. 102There was no evidence that the plaintiff was aware of the pedestrian crossing in Lee Street, and nothing to indicate that he ought to have been so aware. He had driven through the Regent Street/Lee Street intersection, but from the northern end of Regent Street. The pedestrian crossing was some distance north in Lee Street. There was nothing to suggest that it was visible from the intersection when the plaintiff passed through, nor that he ought to have been looking for a crossing. He was unfamiliar with the area. It was not visible from where he parked his car, and there was no other pedestrian crossing in sight from where he parked his car. When he began to cross the road, he looked to the right, to the left, and to the right again. The traffic lights at Lee Street were red, and there was no southbound traffic in Regent Street. There was no reason that he should not commence his crossing at that point. 103I would reject these grounds of the appeal. (i) Failure to keep a proper lookout 104As initially outlined in the written submissions, the argument in support of these grounds also depended upon what was said (erroneously) to have been a finding by the primary judge that the plaintiff's mobility was impaired. In oral argument, that was abandoned. The "limited agility" point was relied on only in support of the category (ii) grounds. 105As developed orally, the argument was that the plaintiff ought to have maintained a vigil to his right in order to alert himself to any oncoming traffic, but failed to do so. Had he done so, he would have been in a position to take evasive action, either by hastening to the median strip, which would have afforded a measure of pedestrian refuge, by stopping on the dividing line to allow the defendant's vehicle to pass, or by retreating to the eastern kerb (or the parking lane). 106This ignores the evidence, implicitly if not explicitly accepted by the primary judge, that the plaintiff did precisely what it is now contended he ought to have done - that is, maintained a vigil to his right. 107There was in the argument a considerable amount of evidence concerning the precise time at which the plaintiff first became aware of the defendant's vehicle, and his location at that time. From the relevant evidence, it was suggested that an inference was available that the plaintiff had not looked to his right after he commenced the crossing. Such an inference cannot stand in the face of the explicit evidence. (iii) The plaintiff's conduct on seeing the appellant's vehicle 108As particularised in the District Court, the defendant's claim in this respect was that the plaintiff moved "into the path of the defendant's vehicle" (particular (f)). The particular is not specific as to whether this was intended to be a reference to the plaintiff first stepping forward towards lane 4 (as described by Mr Andronos and the defendant), or stepping back towards the eastern kerb. 109On the appeal, senior counsel abandoned any reliance on the plaintiff's step back as indicative of contributory negligence. It was recognised that the plaintiff's action in stepping back was to take appropriate evasive action. The collision occurred because the defendant also took evasive action; the result was that both parties moved into the same lane. Neither can be criticised for this. 110Reliance was placed solely on the plaintiff having taken one step forward. This was not a case made in the District Court. The defendant should not now be permitted to attempt to make a different case: Water Board v Moustakas [1988] HCA 12; 180 CLR 491; Smith v McFarland [2013] NSWCA 378. 111In any event, in my opinion, one step forward, taken instantaneously after the plaintiff first saw the defendant's vehicle, cannot be characterised as negligent. It was not inappropriate that the plaintiff seek to avoid the danger by hastening his walk to the relative safety of the median strip, before realising that the time available would not permit this to be achieved. 112Moreover, the evidence given by Mr Andronos was to the effect that both the plaintiff and the defendant sought to avoid each other but did so by moving in the same direction - first to the west, then to the east. The plaintiff could not have anticipated that the defendant would take evasive action in the same direction that he did. 113Further, it was not the step forward that was the cause of the collision and therefore the plaintiff's injury. It was the step back that brought him into collision with the defendant's vehicle. That was an attempt to avoid collision. In my opinion it does not denote a failure on the part of the plaintiff to take care for his own safety. 114In my opinion these grounds fail. 115In my opinion, once it is accepted (as it is by the defendant) that it was not negligent for the plaintiff to cross Regent Street in the location that he did, and the finding of the primary judge that the plaintiff's mobility was not, on the day in question, impaired, there is no basis for a finding of contributory negligence. 116I would dismiss the appeal.

The cross appeal Domestic assistance/attendant care 117It has long been recognised that it is, frequently, an inevitable consequence of traumatic injury that the injured person will require additional assistance in the activities of daily life: see Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161. Such services are frequently provided by family members, without charge. Often that is because there is no practical alternative. 118Section 141B of the Motor Accidents Compensation Act imposes a limit on the extent to which a plaintiff to whom the provisions of the Motor Accidents Compensation Act apply may recover damages for gratuitously rendered services. Sub-sections (1)-(3) provide as follows: "(1) Compensation, included in an award of damages, for the value of attendant care services: (a) which have been or are to be provided by another person to the person in whose favour the award is made, and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section. (2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident. (3) Further, no compensation is to be awarded unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months." Where the services are not provided or to be provided gratuitously, s 141B has no application. 119The plaintiff claimed damages for services of this kind to the date of trial and thereafter. The primary judge made an award in respect of the period prior to trial. No issue arises on the appeal in respect of this award. 120The plaintiff claimed a need for assistance in the future amounting to 9 hours per week. The primary judge rejected that claim and found that he had established a need for only "between 2 to 4" hours per week. This represented domestic services provided by Ms Pham, and outdoor house and garden maintenance undertaken by one or other of two able-bodied adult sons. 121Because the plaintiff's need failed to reach the threshold specified in s 141B(3)(a), his Honour rejected the claim. He considered himself bound to do so by the decision of this Court in Miller v Galderisi [2009] NSWCA 353. 122The relevant evidence was as follows. At the date of hearing (December 2012) the plaintiff and Ms Pham lived in Panania. Also living in the house were Ms Pham's father, Ms Pham's two sons, Phuong (then 41 years of age and disabled) and Tony; David, the son of the plaintiff and Ms Pham; and Tony's wife. Ms Pham's younger son, Tony, was variously described in the evidence as a graphic designer, and as operating his own restaurant at Bankstown. By the time of the hearing he was married but still living with the plaintiff and Ms Pham. His age was not given in evidence. David was 26 and in his third year studying pharmacy at the University of Newcastle. It appears that he travelled daily to and from Newcastle. 123Prior to the plaintiff's injury, Ms Pham worked three days a week in a restaurant. She did this concurrently with looking after her disabled son, Phuong. She received a carer's pension to enable her to look after Phuong. The plaintiff assisted in the care of Phuong. As a result of the plaintiff's injury, Ms Pham surrendered her employment, in order to care for both Phuong and the plaintiff. In the early stages, the plaintiff needed quite intensive care. As time went on, that need diminished. 124There was no question that the assistance given to the plaintiff by Ms Pham and the two sons had, to the date of hearing, been provided gratuitously. It was not in question that the plaintiff will continue to be in need of such assistance at the level found by the primary judge - between 2 to 4 hours per week. The direct evidence, however, was lacking as to the basis on which it could be anticipated that those services would, in the future, be provided. 125The primary judge considered himself bound by the decision in Miller to decline to make an award for future services. His decision was based upon an unstated assumption of fact. The unstated assumption was that the services would continue to be provided, as they had been in the past, on the basis that the plaintiff was not liable to pay for them. 126That assumption was, in my opinion, unwarranted. The probabilities are that both of the able-bodied sons, Tony and David, will, in due course, move out of the plaintiff's home and establish their own homes. It cannot be assumed that they will be in a position to devote the time that they have to date to the care of the plaintiff. Indeed, the evidence was that, prior to the plaintiff's injury, they had done little by way of domestic work. 127Moreover, the probabilities are that Ms Pham will elect to return to her part-time employment, which she gave up only because of the need to care for the plaintiff. If Ms Pham does return to her employment, it will be necessary to replace her contribution to the plaintiff's care with paid services. 128Despite a reference by the primary judge to "the very clear statements of general principle" made by this Court in Miller, that was a case decided on its own facts. The primary judge in this case considered that the facts in Miller bore "an uncanny resemblance" to the facts in the present case. 129In Miller, the plaintiff was also injured in a motor vehicle accident. He had significant pre-existing medical history. The trial judge found that he had an increased need for domestic assistance as a result of the motor vehicle accident, of 4 hours per week, which he allowed at commercial rates. The evidence showed that, to the date of trial, that assistance was being provided by his wife, and, to a limited extent, by an adult son who lived with the plaintiff and his wife. The Court treated the assistance as having been provided gratuitously. The judgment in this Court does not reveal that any finding was made about the likely continuation of that gratuitous assistance, which suggests that none was made. The Court said: "15 ... The appellant pointed out, correctly, that there was no evidence that this gratuitous assistance would cease at some time in the future. 16 In our view, the award made by his Honour cannot be justified. It was made upon the assumption that the respondent required commercial domestic assistance immediately and would continue to do so for the rest of his life. However, it is clear that he did not require it immediately because it was being provided gratuitously, though to the extent that it could be attributed to the accident, not at a level of intensity that permitted recovery from the appellant." 130Notwithstanding an apparent correspondence of facts, there is a very significant point of differentiation between the facts of Miller and the facts of the present case. In Miller, the plaintiff's wife was in receipt of a carer's pension, granted for the very purpose of enabling her to provide care to the plaintiff. Although it was not given as a reason in this Court, it seems to me that, to award damages to enable the plaintiff to pay for assistance at commercial rates, while his wife continued to receive a pension for that very purpose, would amount to unjust enrichment, and be contrary to principle. In fact, it is difficult to say that the services in Miller were being rendered gratuitously. They were being paid for, although not by the plaintiff, and the plaintiff was not liable to pay for them. The implicit finding of this Court was that the assistance would continue to be rendered, and it would continue to be paid from resources other than those of the plaintiff. In the terms of s 141B, therefore, they were services for which the plaintiff would not be liable to pay. In the circumstance that the plaintiff's wife was in receipt of a carer's pension for the very purpose of providing the services it was an inevitable conclusion that the services would continue to be rendered on the basis that the plaintiff would not be liable to pay for them. 131In this case, Ms Pham was also in receipt of a carer's pension, but well before the plaintiff's injury. That pension had nothing to do with the plaintiff's injury. Unlike in Miller, services rendered by Ms Pham to the plaintiff, additional to those she rendered pre-injury, were rendered gratuitously. There is not the same basis for a finding - or an assumption - that Ms Pham will continue to render the services gratuitously, once the plaintiff has funds. 132An underlying fact in relation to s 141B is whether, in future, services will be provided on a basis that does not expose the plaintiff to a liability to pay. That is a predictive exercise. In this case, there was no direct evidence that Ms Pham would continue to look after the plaintiff on the same basis as she had done in the past. The judge was required to draw inferences from the evidence (as does this Court). 133There was no evidence of the plaintiff's pre-injury financial position, or that of Ms Pham, other than that the plaintiff was in receipt of a disability pension, and Ms Pham in receipt of a carer's pension. From that, it may be inferred that it was (financial) necessity that resulted in Ms Pham providing the services that she did without payment. Following the award of damages to the plaintiff, necessity will not dictate the provision of services without payment. It may be inferred that Ms Pham will return to work, and the plaintiff will be obliged to pay for additional services. That he has a fund available to him should not disentitle him to an award of damages for that purpose. The damages he was awarded for compensation under other heads should not be depleted in order to permit him to receive the care to which he is entitled. 134It was an error for the primary judge to conclude that Miller obliged him to decline to make an award. Having found that the plaintiff was in need of domestic assistance for between 2 to 4 hours per week, it was necessary for the judge to consider on what basis those services would be provided. That is a finding of fact that was not made. The evidence in that respect was scanty. Neither counsel made any attempt to explore the willingness of Ms Pham or Tony or David to continue to do what they were doing, nor their likely capacity to do so. That finding must be made, as best it can, by inference from the evidence that was given. Section 75A of the Supreme Court Act 1970 (NSW) permits this Court to draw the necessary inferences, provided the evidence is available. I would draw the inferences set out above - that Tony and David will cease the provision of their gratuitous services, and that Ms Pham will return to work and do likewise. 135There is no reason to depart from the finding of the primary judge that the plaintiff required domestic assistance between 2 to 4 hours per week. It was not established that that assistance will be provided gratuitously in the future. Section 141B has no application unless that is established. The plaintiff is entitled to an award of damages for domestic assistance at commercial rates for 3 hours per week for the remainder of his life. His life expectancy is 30 years. The commercial rate of assistance is $35 per hour. Applying the appropriate multiplier, the plaintiff claims to be entitled, in addition to the damages awarded, to an award of $86,310 under this head of damages. I would therefore allow the cross-appeal and direct the parties to undertake the necessary calculations to give effect to these conclusions. 136The orders I propose are: (1) Appeal dismissed. (2) Cross-appeal allowed. (3) The parties to bring in short minutes of order to reflect the conclusions above.

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HEADNOTE [This headnote is not to be read as part of the judgment] On 8 July 2008, Mr Kim Hung Truong (the plaintiff) was attempting to cross Regent Street, Chippendale, which consisted of five traffic lanes and no marked safety refuge in the centre. The plaintiff was not crossing at a pedestrian crossing or an area controlled by lights; there was a dispute as to whether the plaintiff failed to keep a proper lookout when crossing. When the plaintiff had reached the third traffic lane, a vehicle being driven by Mr Jarryd Adam Gordon (the appellant) had already entered Regent Street. Seeing the appellant's vehicle, the plaintiff prevaricated, moving forward and then back. The appellant's vehicle struck the plaintiff. At trial, the appellant conceded liability for the accident. The dispute on appeal turned on whether the plaintiff was contributorily negligent and the refusal of one head of damages. The trial judge held there was no contributory negligence and that no award for future commercial domestic assistance should be made on the basis that gratuitous domestic assistance was being provided at a level which was not compensable. The appellant challenged the finding that there was no contributory negligence while the plaintiff, by a cross-appeal, challenged the failure of the trial judge to award damages for future commercial domestic assistance. The issues for determination on appeal were: (i) whether the trial judge erred in failing to find that the plaintiff was contributorily negligent; (ii) whether the trial judge erred in failing to make an award for future commercial domestic assistance. The Court held, allowing both the appeal and cross-appeal: In relation to (i) (per Basten and Macfarlan JJA)

The plaintiff's evidence was that when he stepped onto the road he was checking right and left as he was crossing. The primary judge needed to weigh the plaintiff's evidence against the circumstances relating to the accident. The size of the lanes, the walking speed of the plaintiff and the driving speed of the car would suggest that the appellant's vehicle should have been visible to the plaintiff the moment he crossed the road. The probabilities are therefore that if the plaintiff had kept a proper look, he would not have proceeded and the accident would have been avoided: [7]-[10], [46]
The appellant's concession as to liability was not based on any particular ground, but it is clear that he failed to keep a proper lookout. Responsibility should be apportioned 65% to the appellant and 35% to the plaintiff: [36], [49] (per Basten JA)
The assessment of contributory negligence is to be conducted in accordance with s 138 of the Motor Accidents Compensation Act 1999 (NSW). Section 5R of the Civil Liability Act 2002 (NSW) provides the applicable standard of contributory negligence for s 138. The purpose of s 5R is to impose the same standard of care on both plaintiffs and defendants: [15]-[17] (per Basten JA)
A pedestrian crossing a major thoroughfare (with five lanes of traffic) other than at a place marked for pedestrian crossing or controlled by lights (or both), should adopt a heightened level of attention to traffic: [12] (per Macfarlan JA)
The primary judge did not err in rejecting the appellant's contention that the plaintiff was contributorily negligent in failing to use a pedestrian crossing and in acting as he did upon seeing the appellant's vehicle: [41]. (per Simpson J dissenting)
There was no evidence that the plaintiff was aware of any pedestrian crossing and there was nothing to indicate that he ought to have been aware. The suggested inference that the plaintiff failed to keep a proper lookout cannot stand in the face of explicit evidence that he maintained a vigil to his right. The plaintiff's conduct on the road was an attempt to avoid the collision and did not denote a failure on the part of the plaintiff to take care of his own safety. There is no basis for a finding of contributory negligence: [102], [107], [113]-[115] In relation to (ii) (per Simpson J, Macfarlan JA agreeing)
The primary judge erred in largely rejecting the plaintiff's claim for damages in respect of future domestic assistance. The unstated assumption of fact by the judge in declining the award was that the gratuitous assistance provided to the plaintiff would continue to be provided, as it had been in the past. An inference could be drawn in the present case that the plaintiff's children and his wife would eventually cease to provide gratuitous domestic assistance. The plaintiff is entitled to an award of domestic assistance at commercial rates: [51], [124]-[128], [134] Miller v Galderisi [2009] NSWCA 353 distinguished. (per Basten JA dissenting)
The plaintiff has not established an entitlement to an award calculated on a commercial basis for domestic assistance. Where domestic assistance is being provided gratuitously and there is an absence of evidence that such assistance would cease either immediately, or at some time in the future, it would be inconsistent with principle to make an award for commercial domestic assistance to commence immediately: [30] Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; Miller v Galderisi [2009] NSWCA 353 applied. Richards v Gray [2013] NSWCA 402 referred to.

Domestic assistance 23The cross-appeal challenges the refusal of the trial judge to award an amount on account of "attendant care services" to be calculated at commercial rates. 24It is not in dispute that the findings of fact precluded an award on the basis of gratuitous domestic assistance, the test in s 128 of the Motor Accidents Compensation Act not being satisfied. (Section 128 was renumbered as s 141B in 2012.) The question was whether the plaintiff established an entitlement to an award calculated on a commercial basis, as to which there is no requirement that services be provided for any specified number of hours per week, or over any particular period. 25Awarding damages for this head of loss is anomalous. The imposition of limits on an award for gratuitous care services requires an assessment of how the plaintiff will cater for his accident-caused disabilities in the future, a matter which is usually irrelevant. As explained in Richards v Gray [2013] NSWCA 402 at [110] (Bathurst CJ), and at [176]-[177], damages are generally awarded for a lost capacity to earn, or the needs resulting from a disability created by the accident. In the case of care services, where governed by statute, the plaintiff must not only establish a need but establish that he or she has or will purchase services from a commercial provider. This case is only concerned with the future. He had to establish that, in the future, he would obtain services on a commercial basis for the accepted level of accident-caused need. The assistance which the trial judge found was required amounted to between two and four hours per week. 26The future possibility, namely that the plaintiff will obtain domestic assistance on a commercial basis, does not involve a finding on the balance of probabilities, but an exercise in prediction, in accordance with the principles established by Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638. As Deane, Gaudron and McHugh JJ stated at 643, "the court assesses the degree of probability that an event ... might occur, and adjusts its award of damages to reflect the degree of probability." It is arguable that this exercise has been varied by provisions such as s 126 of the Motor Accidents Compensation Act. It is also arguable that a claim for commercial domestic assistance is a form of "future economic loss" within the meaning of that provision (although it does not fall within the terms of s 125). This point may be put aside for present purposes, as it was addressed by neither party. On the other hand, the standard allowance for vicissitudes is an application of the principle articulated in Malec with respect to future and hypothetical possibilities. 27The evidence in support of the plaintiff's case could have come only from the plaintiff and his wife, Ms Pham. With respect to this evidence, the appellant stated in written submissions: "19. Nowhere in his evidence does the [plaintiff] state that: (i) his wife (or children) are not prepared to continue to provide these few hours of domestic assistance in the future; or (ii) his wife is, or for any reason may become, unable or unwilling to provide that small amount of assistance." 28Further, the appellant submitted, that nowhere in Ms Pham's evidence did she refer to any inability or unwillingness on her part to continue to provide gratuitous assistance, or that she would prefer (or would accept) the provision of commercial services: written submissions at par 23. 29These propositions were not challenged by the plaintiff (cross-appellant). Rather, counsel emphasised, as did the trial judge, the established need. 30If the party who bears the burden of establishing facts calls witnesses who have the relevant information to supply in respect of those facts but are not asked to give any evidence about the matter, there is no reason to infer that, if asked, they would have favoured that party's case. There is no point in seeking assistance in respect of factual inferences from other cases. No case is a precedent for a factual finding. On the other hand, where domestic assistance is being provided gratuitously and there is an absence of evidence that such assistance would cease either immediately, or at some time in the future, it would be inconsistent with principle to make an award for commercial domestic assistance, to commence immediately: Miller v Galderisi [2009] NSWCA 353 at [15]-[17] (Allsop P, Basten and Macfarlan JJA). The Court in Miller continued: "[19] The evidence accepted by the primary judge [as to] the additional domestic assistance required as a result of the accident ... was, since the accident and at the time of trial, being provided by the respondent's wife, with limited assistance from his son. Whether that assistance would continue to be provided by them on a gratuitous basis was a factor which the primary judge was entitled to take into account. If that circumstance were to change in the future, domestic assistance would, foreseeably, be required from a commercial provider. However, that expense was neither immediate nor inevitable. No doubt the likelihood of the contingency would increase with time, but other factors would have a contrary tendency. [20] There are four relevant variables, three of which relate to the condition of the respondent and the fourth to the circumstances of the carers. ... Secondly, the greater proportion of his disabilities resulted from his pre-existing condition and not from the accident. ... Thirdly, ... due to the respondent's state of health, age alone is likely to create a similar need for domestic assistance, in later years, to that created by the accident. [21] The fourth factor concerns the ability and willingness of family members to provide assistance." 31On the facts of that case, the Court held it was not appropriate simply to "pluck a figure out of the air because there is a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future": at [24]. In my view, the same conclusion should follow in the present case and the trial judge was correct to refuse to make such an award. 32If a different view were taken, a calculation of an award starting immediately and continuing throughout the life expectancy of the plaintiff could not be countenanced consistently with principles identified in Miller. The only approach available is to pluck a figure (to be described as a buffer) out of the air. If that course were to be taken (which I do not favour) the figure should not exceed $40,000. That figure takes into account the likelihood of the plaintiff not obtaining commercial assistance immediately and the likelihood that his other health problems will at some point overwhelm the limited needs assessed as resulting from the accident.

Conclusions 35According to these conclusions, the Court should make the following orders: (1) Allow the appeal and set aside the judgment in favour of the plaintiff in the amount of $322,819 and the order as to costs. (2) Dismiss the cross-appeal. (3) In place of the orders in the District Court, order that the defendant pay to the plaintiff damages in of $209,832. (4) Order that the respondent pay the appellant's costs of the appeal. (5) Order that the cross-appellant (Mr Truong) pay the cross-respondent's costs of the cross-appeal. (6) In the absence of agreement, the parties have leave to file and serve within 21 days of the date of this judgment submissions not exceeding three pages (together with any offers of compromise relied upon) as to the orders sought with respect to costs in the District Court. 36In the results, Macfarlan JA and I are agreed that the appeal should be allowed and damages reduced by 35%. With respect to the cross-appeal, Macfarlan JA and Simpson J are agreed that there should be an award of damages for domestic assistance calculated (in accordance with the plaintiff's submissions) at commercial rates for three hours per week for the remainder of the plaintiff's life, as an amount of $86,310. The judgment below is calculated on the following basis: to the judgment in the District Court of $322,819 has been added the additional sum for domestic assistance of $86,310, the total being reduced by 35% on account of contributory negligence. 37There is much to be said for the view that, each party having had a measure of success, there should be no order as to the costs of the proceedings in this Court. However, the parties have not been heard on that issue and should have an opportunity to propose alternative costs orders, if that exercise is in the interests of their respective clients. 38Further, in the event that either party, having consulted with the other party, considers there has been a miscalculation of the damages, he may within the prescribed period of 14 days seek a variation of order (3). 39In the circumstances, the orders of the Court are as follows: (1) Allow the appeal and cross-appeal. (2) Set aside the judgment and order as to the costs of the trial, made in the District Court on 7 December 2012. (3) In place of the judgment of the District Court, order that the defendant pay to the plaintiff damages in an amount of $265,934, such judgment to take effect from 7 December 2012. (4) Make no order as to the costs of the proceedings in this Court. (5) In the absence of agreement, the parties have leave to file and serve within 14 days of the date of this judgment a notice of motion with submissions not exceeding three pages (together with any offers of compromise relied upon) as to: (a) the calculation of the judgment in order (3) above; (b) any variation of order (4), and (c) the orders sought with respect to costs in the District Court. 40MACFARLAN JA: I have had the advantage of reading Simpson J's judgment in draft. I gratefully adopt her Honour's description of these proceedings and the circumstances that gave rise to them. 41I agree with her Honour's conclusions that the primary judge did not err in rejecting the appellant's contentions that the plaintiff was contributorily negligent in failing to use a pedestrian crossing and in acting as he did upon seeing the appellant's vehicle. In further support of the rejection of the former contention, I note the evidence given by the appellant, who frequently drove down the relevant part of Regent Street, that "people used to often cross from the eastern side of Regent Street to the western side in the general area of where [the] accident happened" (Transcript p 148) and the expert evidence of Mr Johnston that one of the purposes of having an area in the centre of the road bounded by painted lines was "to provide a central pedestrian refuge for pedestrian crossing" (Transcript p 77). I also note that there was no reasonably accessible pedestrian crossing on Regent Street on the opposite side of the accident site from Regent Street's intersection with Lee Street. 42I do not however agree with her Honour's conclusion that the primary judge did not err in rejecting the contention that the plaintiff failed to keep a proper lookout. That contention was particularised in the appellant's Amended Defence, was pressed in the appellant's closing submissions at first instance, was included in the primary judge's summary of the particulars of contributory negligence, was maintained in the Notice of Appeal and was pursued in oral argument on appeal. 43The primary judge appears to have rejected this allegation of contributory negligence on the basis of an implied acceptance by him of the plaintiff's evidence that after he stepped onto the road he was "checking right and left as [he was] crossing" (see [92] in Simpson J's judgment). Whilst it was not expressly put to the plaintiff in cross-examination that his evidence in this respect was inaccurate, the allegation of a failure to keep a proper lookout was maintained despite this evidence, thereby indicating that it was in issue. 44In my view, the primary judge needed to weigh the plaintiff's evidence that he kept a proper lookout against the following circumstances relating to the accident. 45It was common ground on the appeal that the intersection of Regent and Lee Streets was about 70 metres from the accident site and that the appellant's vehicle travelled towards the plaintiff at no more than about 50 kilometres per hour after the traffic lights turned to green at that intersection. As 50 kph equates to 14 metres per second, it would have taken the appellant's vehicle at least five seconds to travel from the intersection to the accident site. Bearing in mind that the vehicle appears to have had a standing start, the period is likely to have in fact been longer. It was also common ground that the plaintiff did not see the appellant's vehicle until it was about 15 metres from him and, thus, about one second away. Accordingly, there were at least four seconds whilst the appellant's vehicle was travelling towards him during which the plaintiff did not see it. 46Estimates differed as to how long it took the plaintiff to walk across the road from the lane in which his vehicle was parked to the accident site. On appeal, his counsel contended that it would have been about three seconds. If that was so, the appellant's moving vehicle would have been in sight when the plaintiff set off and he should have observed it and been deterred from proceeding. The primary judge's estimate was about five seconds and that of Mr Johnston, an expert, about six seconds. If either of these were the case, the plaintiff would have seen the appellant's vehicle at about the time he set off or, if he kept checking to his right (as he said he did), almost immediately thereafter. In either case he could not prudently have proceeded. 47In my view the inevitable conclusion is that the plaintiff did not carefully check to the right for oncoming traffic at the time that he set off to cross the road, or at least did not continue to do so as he crossed. If he had done this, he would have had at least about five seconds warning of the approach of the appellant's vehicle rather than the one second he in fact had. The probabilities are therefore that if the plaintiff had kept a proper lookout, he would not have proceeded and the accident would have been avoided. The plaintiff was thus guilty of contributory negligence. 48I turn then to the question of apportionment of responsibility between the plaintiff and appellant. 49In my view responsibility should be apportioned 65% to the appellant and 35% to the plaintiff. As the appellant admitted liability and the primary judge did not consider apportionment (he having found that the plaintiff was not contributorily negligent), there were no findings as to the respects in which the appellant was negligent. However, it is clear that the appellant must have failed to keep a proper lookout for the same reasons I have concluded above that the plaintiff failed to do so. The plaintiff would have been in the appellant's field of vision for a number of seconds prior to the time at which he in fact saw him. On the judge's estimate of the plaintiff's walking speed, that would have been about four seconds. Whilst 50 kph may not have been an excessive speed in the circumstances, it was a significant speed at which to be travelling on a city street. It required the appellant to be especially vigilant, particularly when he knew that pedestrians frequently crossed the road in the area where he was driving. If he had kept a proper lookout, he would have had time to brake or, as he in fact tried unsuccessfully to do, to manoeuvre his vehicle around the plaintiff. 50Relevant to the apportionment exercise in this case is in my view the fact that the appellant was in charge of a fast moving vehicle that had the potential to do great harm to people or things in its path, whereas the consequence of carelessness on the part of the plaintiff was more likely to be, as it was, only harm to himself (Pennington v Norris [1956] HCA 26; 96 CLR 10 at 16; Anikin v Sierra [2004] HCA 64; 79 ALJR 452 at [46], [48] - [52]; Smith v Zhang [2012] NSWCA 142; 60 MVR 525 at [12] - [16]).

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Judgment (5 paragraphs)

Legislation Cited (4)

Cases Cited (10)