Gordon v Truong; Truong v Gordon

The appeal The motor vehicle accident 64The motor vehicle accident occurred just before midday on 8 July 2008, on Regent Street, Chippendale. The plaintiff drove from his home in Panania to Regent Street in order to call at the Registry of Births Deaths and Marriages. He was unfamiliar with the area. 65Regent Street runs generally north-south, commencing at Broadway (also known as Parramatta Road). At a point a little south of Broadway, it veers towards the west, at approximately a 45 degree angle, and forms a Y-intersection with Lee Street. Lee Street is almost a continuation of that part of Regent Street that is south of the intersection. About 10 metres north of the intersection, in Lee Street, is a pedestrian crossing. 66On the western (northbound) side of Regent Street are three traffic lanes, two of which carry moving traffic, and one of which was occupied by parked vehicles. On the eastern (southbound) side, three lanes carry moving traffic, and one accommodates parked vehicles. Two unbroken lines mark out an unraised median strip. There was no uniformity in how the lanes were referred to (by numbers) in the evidence, and that has been the cause of some confusion. It can now be taken as agreed that the four lanes in the southbound carriageway are referred to as lanes 1-4, with lane 1 being the parking lane, lane 4 being the lane adjacent to the median strip. 67The precise circumstances of the accident are the subject of some controversy, relevant to the allegation of contributory negligence. 68In what is probably the first account given of the accident, the defendant made a statement to a police officer who attended the scene. The statement is recorded in the police officer's notebook, relevantly as follows: "I was stopped at the intersection Lee St and Regent St. The lights have gone green and I started to travel south on Regent Street in lane 3 [lane 4]. I had travelled about 50m from the intersection when the pedestrian was standing on the line between lanes 2 [lane 3] and 3 [lane 4]. It looked like he was about to take off, to run across the road. So I then tried to move into lane 2 [lane 3]. The male looked at me, then stopped and started to move backwards. I then slammed the brakes on but couldn't stop in time before hitting the male. He pretty much hit the centre of my car ..." The defendant estimated his speed, at the time of collision, as about 40 to 50 kph. (It became clear that, when the defendant said that the plaintiff was "on the line between lanes 2 and 3" he was counting only the moving traffic lanes, and that, on his account, the plaintiff was on the line between what are now agreed to be lanes 3 and 4 - that is, entering the lane nearest the median strip.) 69In oral evidence, the defendant said that he was travelling in lane 4. When the lights turned green in his favour, he proceeded around the bend in that lane, and that was where he saw the plaintiff on the line dividing lanes 3 and 4. He estimated that when he first saw the plaintiff he was "maybe" 40 metres away. Contrary to what he had said in his police statement, he gave evidence that his speed was (he imagined) under 40 kph. 70The defendant said that the plaintiff reached the dividing line, "sort of stopped" and apparently decided "to go"; "he went to take off, took a step to run". The defendant said that he (the defendant) then checked to see if any vehicle was in the lane next to him, and tried "to get out of the way". He saw the plaintiff then stop, take a step back to the centre line, and appear to panic. He again identified the point of impact as in lane 3, almost on the line between lanes 3 and 4. 71When asked further about the plaintiff's actions, the defendant said that the plaintiff "took a fairly big step" (forward, towards the west), then "took a step backwards". He said the plaintiff did not turn. The defendant said that when he saw the plaintiff take the step forward (west) he (the defendant) swerved to the east; it was when he saw the plaintiff "retreat" (to the east), that he first braked, and that he then attempted to veer to the west. 72Given the way the proceedings were conducted in the District Court (see below) it was not necessary that the primary judge make findings about the credibility of the defendant. It is apparent, however, merely from reading the transcript, that he was a difficult, and to some extent unco-operative and combative, witness, and unreliable when it came to estimations of speed and distances. 73The plaintiff's evidence was given through an interpreter. He gave evidence that he had once, two years earlier, been to the area, but that, although he had some directions from a friend, he did not know where the Registry of Births Deaths and Marriages was. He drove through the Lee Street intersection from the northern part of Regent Street. Just before midday he parked his car in the first available parking spot, about 70 metres south of the intersection. There was no pedestrian crossing, either to the north or to the south, visible from where he parked his car. 74Before commencing to cross the road he looked to the right and saw that the traffic lights at the Regent Street/Lee Street intersection were red, and that no traffic was coming through the intersection. He looked to the left and then to the right again and saw that the lights were still red and that there was still no traffic coming from the north. He therefore commenced to cross, walking quickly. As he did so "I continue check on my right hand and my left hand side before continuing to walk". He reached about the middle of lane 3. He saw the defendant's van driving quickly towards him from the intersection. It was also in lane 3. He turned 180 degrees to his left, took about three steps, and stopped on the white line between lanes 2 and 3. He was then facing the eastern kerb. It was there that the van hit him. He heard the sound of braking. He said that he turned 180 degrees because his right leg often felt weak, and he could not step backwards. The following questions and answers appear in the transcript: "Q Can you describe please what happened after you saw that vehicle coming from the right? A ... so I saw that car from the distance around 50 metre from me and then I turn around 180 degree to my left and I stop at the white line between the second lane and third lane, then that van hit me while I was standing on second lane. Q You said you saw the car coming from a distance of about 50 metres. Did you form any impression as to the speed with which it was approaching you? A I think that they were at fast speed. Q Why did you turn 180 degrees? A Because my right leg is often I feel weak so I cannot step backwards. That's why I bear on the left leg and I turn 180 degree." Immediately before that, the plaintiff had said: "I can walk as a normal person and I travel fast." 75The collision was observed by Mr Kevin Andronos, a barrister, who was driving north in Regent Street. His attention was attracted by the sound of sharp braking coming from the defendant's van. Mr Andronos saw the plaintiff in the middle of lane 3, his body facing west, his head turned to the right (north). The van was travelling south in the same lane. The plaintiff was looking towards the van. He "looked to take a step forwards, and then he looked to take a step backwards". The van deviated to the west, and then to the east. Mr Andronos saw the van strike the plaintiff. At that point the plaintiff was still "pretty much in the centre of lane 3". Mr Andronos said: "Now, perhaps I should explain the reason he looked to me to be taking a step forward, then backwards, is that simultaneous with his movement, the van looked to deviate from its straight travel along the lane, to the van's right [that is, west], which was to my left, which was also to the pedestrian's forward, and then deviated again to the van's left [that is, east], to my right, which was the pedestrian's backwards and the impression I had was of both the pedestrian and the van becoming aware of each other and seeking to avoid each other, but inadvertently moving in the same direction on both occasions." No objection was taken to this evidence. 76It will be observed that the evidence of Mr Andronos concerning the defendant's attempts to avoid striking the plaintiff were the direct opposite of that of the defendant himself. The defendant said that he first swerved east, as the plaintiff stepped forward, and then swerved west when he saw the plaintiff step back. Mr Andronos said that the defendant first swerved west, and then east. 77Mr Andronos' evidence casts doubt on the plaintiff's evidence that he turned to his left, 180 degrees, to face east. Mr Andronos saw the plaintiff looking to his right, towards the defendant's vehicle. The proceedings in the District Court 78It is important to understand how the case was conducted in the District Court. It was not there conducted on the basis that it was unsafe for a pedestrian to attempt to cross Regent Street other than at a marked pedestrian crossing. Essential to the case as presented on behalf of the defendant was the contention that the plaintiff's mobility was, by reason of his various health issues, impaired. It was that asserted fact that, on the defendant's argument, rendered it unsafe for the plaintiff to attempt that crossing other than at the pedestrian crossing some distance away in Lee Street. 79The basis on which, on behalf of the defendant, breach of duty of care was admitted was not spelled out in the District Court. Attention was primarily focussed on the allegation of contributory negligence made against the plaintiff. Contributory negligence was there particularised in the Amended Defence as follows: "(a) failing to keep a proper lookout; (b) failing to cross Regent Street when it was safe to do so; (c) staying on Regent Street longer than necessary to cross the road safely; (d) failing to cross Regent Street by the shortest safe route; (e) failing to cross Regent Street at the pedestrian lights at the intersection of Lee Street; and (f) moving into the path of the defendant's vehicle." 80No evidence supported, and no argument was addressed to, the particulars lettered (c) and (d). With respect to particular (e), the evidence showed that there were no pedestrian lights at the Lee Street intersection; the pedestrian crossing in Lee Street was about 10 metres further to the north. That crossing was about 115 metres from the point on the eastern kerb of Regent Street from which the plaintiff commenced to cross the road. 81In the particulars there was no express assertion that the plaintiff suffered from "impaired mobility". At an early stage in the proceedings some consideration was given to separating the issues of contributory negligence and damages. In that context, counsel who appeared for the defendant told the court that he proposed, on the issue of contributory negligence, to ask the plaintiff some questions about "his mobility problems at the date of the accident". Senior counsel who appeared for the plaintiff inquired about the relevance of the plaintiff's medical conditions to that issue. Counsel for the defendant replied: "It would fall within para 5B, your Honour, of the amended defence, failing to cross Regent Street when it was safe to do so. That embraces both the prevailing traffic conditions and his limitations." Both the primary judge and senior counsel for the plaintiff accepted that evidence of mobility restrictions making it unsafe for the plaintiff to cross the road could be relevant to that particular. (It may here be interpolated that no evidence was called to support the allegation that "the prevailing traffic conditions" affected the safety of the plaintiff's attempt to cross Regent Street. To the extent that any evidence was given concerning traffic conditions, it appears to have suggested that traffic was light. Mr Andronos observed two cars travelling south, a little distance behind the defendant.) 82It was thus never the defendant's case that it was, per se, unsafe to cross Regent Street other than at a marked crossing. The defendant's case throughout was that it was unsafe for the plaintiff, in his particular circumstances, to do. The "particular circumstance" relied upon was what was asserted to be his impaired mobility resulting from one or more of his medical conditions. That assertion called for a finding of fact as to whether the plaintiff's mobility was impaired, and, if it were, the extent of the impairment. 83In the District Court, some emphasis was also placed on the allegation that the plaintiff failed to keep a proper lookout. On appeal (but not in the District Court) emphasis was also placed on particular (e), asserting that the plaintiff moved into the path of the defendant's vehicle. Although that was there pleaded, no submissions were directed to it. 84The entirety of the defendant's submissions in the District Court, which were in writing, with respect to contributory negligence, was as follows: "42 Particular (b) above embraces the concept of the plaintiff's knowledge of his own restricted movement. This was addressed at an early stage in the proceedings. The defendant's case is that the particular location chosen by the plaintiff was not safe for him to cross by reason of the volume of traffic in combination with his mobility restrictions which were longstanding and had necessitated a disabled parking permit some months before the accident. The plaintiff himself made reference to restrictions of movement in his evidence. 43 Viewed objectively, the defendant's case is that the plaintiff ought to have known the location was unsafe for him to cross and he should have used the pedestrian crossing lights which were available to him. 44 The defendant's case on contributory negligence is not limited to the mobility issue as can be seen by the evidence of Grant Johnson (sic) discussed above. It is plain from that evidence that the plaintiff has failed to keep a proper lookout for the defendant's vehicle, and thereby deprived himself of the opportunity to take appropriate evasive action with sufficient time to avoid the collision. Such action could have been taken at a stage well before the plaintiff entered the lane occupied by the defendant and well before the plaintiff ultimately attempted to avoid the collision. 45 It seems clear from the plaintiff's evidence that he erroneously assumed the red light to the north meant that no vehicles were coming from that direction. This may explain his failure to see the defendant's vehicle before he did so. In these circumstances, the court should comfortably be satisfied of a finding of contributory negligence on the part of the plaintiff." The reference in para 42 to the plaintiff's evidence concerning restrictions of movement was a reference to his evidence that weakness in his right leg meant that he could not step backwards. Despite the reference in that paragraph to "volume of traffic" there was, as noted above, no direct evidence to establish what that volume was. Certainly there was no evidence to suggest a conclusion that the volume of traffic was such as to make it unsafe for the plaintiff to attempt to cross the road. In this respect, the defendant's case stood or fell on the assertion that the plaintiff's mobility was impaired. 85Oral evidence was given in the plaintiff's case by Mr Andronos, the plaintiff, Ms Pham, two medical practitioners and by a consulting engineer, Mr Grant Johnston. Mr Johnston had been retained to prepare an expert report at a time when the defendant's liability was in issue. He was specifically asked to report on whether the defendant had exercised reasonable care, and whether any act or omission "by the driver of the unidentified vehicle" was causative of the collision. (The reference to an "unidentified vehicle" is a mystery. Nowhere in the relevant material is there any reference to any relevant vehicle other than that driven by the defendant. Mr Johnston seems to have misunderstood this part of his instructions; his brief response to that question also focuses upon the defendant.) 86Because his role was to provide an analysis with respect to the defendant's liability, Mr Johnston's report is of limited assistance. His oral evidence is more useful, directed to contributory negligence on the part of the plaintiff. 87Both the plaintiff and Ms Pham gave evidence about the plaintiff's pre-accident physical condition. In his evidence in chief, the plaintiff said that he had made a full recovery from the stroke in 2003. He said that he was granted a disability pension principally because of the gout in his right knee which caused weakness, but also because of high blood pressure, a heart problem, and diabetes. Notwithstanding those conditions, he said, he walked normally. He said that he suffered "episodes" of gout, and that these "episodes" caused pain in the knee, and affected his capacity to walk and to stand. Other than during these "episodes", he could walk and stand normally. He said that on the day of the accident he was not having an "episode". He said that his walking and driving on that day were normal. 88Ms Pham gave evidence to similar effect. She said that by 2008 the plaintiff was suffering no after-effects of his stroke. She also gave evidence of intermittent pain from gout, but said that in the period immediately preceding the accident, the plaintiff was having no problems with his knee. The judgment in the District Court 89The primary judge noted the variation in the three descriptions of what had happened. He held that it was more likely than not that the plaintiff had reached lane 3, and that he then looked "again" to the right. It was at this point that he saw the defendant's vehicle approaching. He accepted that the defendant was travelling at between 40 and 50 kph. He took the view that the account given by Mr Andronos was likely to be the most reliable of the three. 90The primary judge summarised the defendant's case on contributory negligence as:

• "that the particular location chosen by the plaintiff was not safe for him to cross by reason of the volume of traffic in combination with his mobility restrictions" (italics added);
• "the plaintiff ought to have known the location was unsafe for him to cross, and he should have used the pedestrian crossing lights which were available";
• "the plaintiff failed to keep a proper lookout for the defendant's vehicle, and therefore deprived himself of the opportunity to take appropriate evasive action with sufficient time to avoid the collision". There was no suggestion in this summary that the defendant had presented a case that the plaintiff was negligent by moving into the path of the defendant's vehicle (particular (f)). 91With respect to the plaintiff's asserted "mobility restrictions", the primary judge considered that the plaintiff's evidence, that he suffered no after-effects from the 2003 stroke was "an overstatement", and that he did suffer some after-effects which had not entirely dissipated by the time of the motor vehicle accident in 2008, and that those after-effects as well the gout was still in evidence at that time. However, he held: "The evidence also supports the conclusion that the gout had stabilised by July 2008, that is the time of the motor vehicle accident and there were times when the plaintiff, as far as that condition is concerned, was entirely free of symptoms. According to the plaintiff's evidence, the morning of the motor vehicle accident was such a time. He was untroubled by what he understood to be the residual symptoms of gout rather than any other medical condition and that on that occasion he was able to walk quickly without difficulty when he crossed the road. ... I am satisfied that the evidence does not go far enough to establish that the plaintiff was negligent in choosing to cross the roadway at the point he did, that he was on that occasion able to move freely and to walk reasonably quickly, which was what necessary to cross the road with safety. It was therefore not a failure on his part to exercise reasonable care, in not choosing another point to cross the road. There was, on his evidence, and there is no evidence to contradict it, no traffic in sight, particularly to his right when he started to cross the road. On that evidence he was entitled to assume that he had sufficient time to get at least to the median strip before encountering any oncoming traffic." No ground of appeal challenges these findings of fact. 92The rejection of the contention that the plaintiff's mobility was impaired undermined the defendant's case as pleaded in particulars (b) and (e), and the first and second of the defendant's contentions at trial as summarised by the primary judge. The primary judge then turned to consider the allegation that the plaintiff had failed to keep a proper lookout. In that respect, he said: "The plaintiff's evidence, again unchallenged, was that before he started to cross the road, that is, when he was standing at the rear of his vehicle, he looked right and left and right again and was at that stage satisfied that there was no traffic within his view proceeding south along Regent Street. On the evidence of Mr Johnston there would have been no more than five seconds between his starting to cross the road and his reaching the point where he looked right and saw the defendant's vehicle, at that stage closely approaching him. It is quite possible, although there is no evidence to this effect, that the plaintiff had looked right again, that is between his starting to cross the road and finally seeing the defendant's vehicle, at a point when the defendant's vehicle was still out of view. He was asked in the course of his evidence in chief: 'Q. You were checking right and left as you were crossing?' and this answer was 'Yes.'." 93In saying that there was no evidence that the plaintiff had looked right again after leaving the kerb, his Honour overlooked some evidence given by the plaintiff, which, in fact, the primary judge mentioned in the very next sentence. That answer was preceded by this answer: "So I continue forward and I continue check on my right hand side and my left side, before continuing to walk." 94On the basis of that conclusion, the primary judge rejected the third of the defendant's contentions concerning contributory negligence, that is, that the plaintiff had failed to keep a proper lookout. No ground of appeal challenges the findings of fact inherent in the passage above. 95Notwithstanding the conclusion that the plaintiff had "overstated" his recovery from the stroke, the primary judge accepted the plaintiff as a generally truthful witness. It is plain that he accepted the plaintiff's evidence that he had continued to monitor the road as he crossed.

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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