It is necessary to now turn to the question of damages. As set out above, I have found that the defendant breached the duty of care which he owed to the plaintiff. It is therefore necessary to consider the various heads of damages applicable.
As referred to above, the plaintiff was not assessed as having a greater than 10% whole person impairment as a result of the accident. Thus no damages for non-economic loss are recoverable by him.
[2]
Past out-of-pocket expenses
The parties agreed that the past out-of-pocket expenses were $1,292.15: T207.1.
[3]
Future out of pocket expenses
In relation to future out of pocket expenses, the defendant says the appropriate figure is $1,000 (written submissions paragraph 60) whereas the plaintiff seeks $10,000.
As indicated above, I generally accept the conclusions as to the plaintiff's injuries set out in the report of Dr Bodel. There was no specialist orthopaedic surgeon report relied upon by the defendant.
There was evidence before me that the plaintiff had consulted a physiotherapist and a chiropractor in the United States on a number of occasions. Exhibit 7 established that the plaintiff had consulted with Mr Gil Jackson on two occasions. However, the plaintiff said that he had consulted Mr Jackson on two other occasions and paid him cash. I accept the plaintiff's evidence in this regard. The plaintiff said he had also been provided free physiotherapy services on a few occasions.
In his report dated 30 May 2016, Dr Bodel recommends the following:
1. A self-directed home based exercise programme to improve physical fitness levels of the plaintiff in the neck and the back. In my view, this could be planned for the plaintiff by a physiotherapist in the United States. The plaintiff has already engaged in a home based exercise regime in Australia;
2. Some intermittent physiotherapy and/or chiropractic treatment as needed following the flareups of pain from time to time. Although Dr Bodel uses the words "may need" this is in the context of pain arising in the plaintiff's back and/or neck. See also Dr Bodel's answer to paragraph 15 on page 7 of his report where he states: "He will require some intermittent physiotherapy on an as needs basis to optimise his recovery";
3. Non-prescription analgesic medication of the type that he is currently taking.
The defendant points to the limited physiotherapy and chiropractor services which the plaintiff has actually obtained since the accident.
In my view, the defendant's allowance is too low but the plaintiff's allowance is excessive having regard to the plaintiff's limitations and his limited access to physiotherapy and chiropractor services in the 2016-2017 period.
There is no direct specific evidence of the cost of these various items in the United States other than Mr Jackson's account. Doing the best I can on the limited evidence before me, I would allow $4,000 for the future for analgesia and physiotherapy/chiropractic services together with the planning of a home based exercise regime as recommended by Dr Bodel.
[4]
Past loss of earning capacity
The plaintiff tendered as Exhibit C in the proceedings an economic loss schedule with pay advice statements and taxation records relating to the plaintiff's employment whilst at Caltex.
The plaintiff also sought an amount for past economic loss in his counsel's written submissions (paragraphs 44-46).
However, no claim was made for past loss of earning capacity by the plaintiff in his pleading. The claim for past economic loss was not pressed by the plaintiff in final oral submissions.
[5]
Future loss of earning capacity
The defendant opposed any award under this head. The plaintiff sought, in effect, an award of $55,000.
The plaintiff tendered in the proceedings as Exhibit B a document on the letterhead of Cushman & Wakefield which is a commercial real estate company. The plaintiff gave evidence that he worked as an employee for Cushman & Wakefield at the time of the final hearing and had been employed by them since October 2016 when he returned to the United States from Australia.
Exhibit B shows that the plaintiff, who worked only on a commission and not a salary or salary/commission basis, earned for his company gross commissions of $73,388.17 since his employment commenced of which he received 50% amounting to $36,694.08. The plaintiff confirmed in cross-examination that the 10 transactions for which brokerage commission was received related to either buy/sale transactions or leasehold arrangements.
The plaintiff's evidence was that he received this commission (on which he paid about 30% income tax) for working between a 50 and a 55 hour week. He gave evidence that if he was in the same physical condition as he was prior to the accident and did not have his ongoing disabilities arising from the accident, he believed that instead of having only 10 clients from whom he earned commissions he would have had 30 clients but this would have involved him working between 55 and 60 hours per week.
There was no evidence before me as to the level of work which Cushman & Wakefield had in the relevant period and whether if the plaintiff was able to physically work harder to his pre-accident capacity, that he would have had more transactions available to him on which to earn commissions and which would have resulted in increased earnings. I was not satisfied from this evidence that it was more probable than not that the plaintiff would have enjoyed the significant increase in clients and earnings which he indicated in his oral evidence.
Only a buffer is sought by the plaintiff in the present case for loss of future earning capacity.
The award of damages for future loss of earning capacity is governed by s 126 of the Act. Section 126 of the Act provides as follows:
"126 Future economic loss - claimant's prospects and adjustments
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
In New South Wales v Moss (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]-[71] and [84]:
[70] First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of "general damages". Like other types of "general damages", as Fullagar J said in Paff v Speed at 559, they are "of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much 'at large'. They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them". In Russell v J Hargreaves & Sons Pty Ltd [1957] QSR 440 at 445, Taylor J said:
"Since … it is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly."
The field is an "uncertain" one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169, per Street CJ.
[71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed at 566, per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. H Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, at 91 [1.9.18], said: "it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act".
In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639, Brennan J and Dawson J said: "the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history". They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages …". The majority (Deane J, Gaudron J and McHugh J) in Malec v J C Hutton Pty Ltd said (at 643) that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender material[s]": Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830; [1962] NSWR 871 at 877, per Evatt CJ, Herron J and Sugerman J. That language, unlike the reference to permitting "guess work or speculation" elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd (1963) 63 SR (NSW) 598 at 607; 80 WN (NSW) 999 at 1006, per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffmann (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259, per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792, per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as "matters of prophecy or judicial guesses" in Paul v Rendell (1981) 55 ALJR 371 at 376; 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570:
"when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award."
In Sretenovic v Reed [2009] NSWCA 280 McColl JA (with whom Beazley JA agreed) considered the assessment of future loss of earning capacity. Her Honour stated as follows at [79]-[81]:
[79] I turn then to the issue of future economic loss. The primary judge's finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent's future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded.
[80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412).
[81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]-[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future".
It is clear from the reasoning of the Court of Appeal in Stretenovic that the award of a buffer or cushion is reserved to a situation where the precise loss of the plaintiff is difficult to determine and there is a "smallish risk" that the plaintiff's secure employment prospects will come to an end or the plaintiff's capacity has been clearly reduced but how that will inhibit his or her earning capacity in consequence of the tort-related injury suffered by the plaintiff is uncertain.
In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 McColl JA stated the following at [6]-[9]:
"[6] The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 ; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows:
84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]-[5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future", but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.
[7] The award of a buffer for future economic loss in circumstances "where earning capacity has unquestionably been reduced but its extent is difficult to assess" reflects the proposition that, to paraphrase, the want of precise evidence "does not necessarily result in non-recovery of damages": New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant's complaint about the adequacy of the claims assessor's reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is "necessarily impressionistic"; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing).
[8] While, as Giles JA said in the Nominal Defendant v Lane (at [67]), "s 126 is presumably intended to promote intellectual rigour", the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour, an element of impression must be involved. The claims assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise. The appellant has not identified any legal error in the award of the buffer.
[9] The foregoing should not be seen as a licence to award buffers indiscriminately. Where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer. Each case must turn on its own facts."
Basten JA stated the following at paragraphs [27]-[30]:
"[27] In summarising a comprehensive review of the principles to be applied in this area, Heydon JA stated in Moss at [87]:
The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.
To the extent that this court suggested in Nominal Defendant v Livaja [2011] NSWCA 121 at [39] that hypothetical elements should be established on the balance of probabilities, those statements were wrong and should be disregarded.
[28] Structural difficulties with the form of s 126 (and the more generally applicable equivalent provision, namely s 13 of the Civil Liability Act 2002 (NSW)) have been the subject of comment in numerous cases. It has been pointed out that the calculation of future economic loss depends not only upon assumptions about unimpaired future earning capacity, but also upon the extent to which earning capacity is, or is likely to be, diminished as a result of the injury. Section 126 makes no direct reference to the latter limb of the calculation, unless subs (3) is addressed to the broader set of assumptions and not limited to those referred to in subs (1).
[29] Further, subs (2) has been understood as referring, at least primarily, to the reduction commonly allowed for "vicissitudes" which, absent particular features warranting some other approach, is usually fixed at 15%. In circumstances where, for example, the employment situation of the claimant is inherently unstable, a greater percentage is allowed. In Amoud v Al Batat [2009] NSWCA 333 I explained my understanding of s 126(2) in the following terms at [25]:
Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that "the events concerned might have occurred but for the injury". There is clearly a step between the exercise addressed in subs (1) and that required by subs (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with subs (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by subs (2).
[30] The lacuna in s 126 may have occurred because the drafter was following the reasoning in Malec . The adjustment which was required in that case was to take account of the possibility that factors unconnected with the injury might have resulted in the same disability in any event: at 645. That problem aside, there is a point (which may be differently assessed by different courts) beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a "buffer", without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage. The suggestion that such a commonsense approach was precluded by legislation in the form of s 126 was rejected, as noted by the trial judge, in Penrith City Council v Parks [2004] NSWCA 201, by Giles JA at [3]-[5]. Since then, a similar approach has been adopted in at least 20 cases in this court: see, eg, Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [33] (Hodgson JA; Mason P and McColl JA agreeing); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; 172 IR 453; [2008] Aust Torts Rep 81-949, at [84] (McColl JA; Mason P and Beazley JA agreeing); Zreika v New South Wales [2009] NSWCA 99 at [29] (Ipp JA; Beazley and Macfarlan JJA agreeing); Gulic v O'Neill [2011] NSWCA 361 at [67]-[69] (Whealy JA; Campbell JA and James J agreeing). It was not submitted that in principle such a course was not open to the assessor, acting in conformity with s 126. Nor was it contended that s 126 varies general law principles in any material respect. Such a contention would involve a challenge to the reasoning in Penrith City Council at, for example, [58] (McClellan AJA)."
Macfarlan JA stated as follows at paragraph [66]-[67]:
"[66] I agree with the judgment of Basten JA but add the following observations in relation to the buffer that the assessor awarded in respect of future economic loss.
[67] It has been accepted since Penrith City Council v Parks [2004] NSWCA 201 that it is not inconsistent with s 13 of the Civil Liability Act 2002 or the similarly worded s 126 of the Motor Accidents Compensation Act 1999 for a buffer to be awarded to compensate an injured person for the possibility that he or she may suffer economic loss in the future as a result of a loss of capacity to earn income. In Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, Mason P spoke of such an award being usually reserved for "the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future" (at [2])."
The issue in the present case is to determine whether there is appropriate evidence establishing a possibility or "smallish risk" that the plaintiff may suffer economic loss in the future as a result of a loss of capacity to earn income.
I was not satisfied by the plaintiff's evidence of an assertion that he could have increased his clients threefold if he was not injured and not continuing to suffer physical problems arising from the accident. There was no independent evidence in relation to his current employer or from a senior manager of his current employer to establish this.
I accordingly turn to determine whether the award of a buffer as sought is appropriate in all the circumstances.
It is difficult to compare the plaintiff's employment at the time of the accident to his current circumstances:
1. In 2015 he was employed in Australia whereas now he is employed in the United States;
2. In 2015 he was paid a salary whereas now he is paid by commission;
3. In 2015 his salary was higher. However, on the commission basis he has the capacity to earn higher wages;
4. In 2015 he was employed by a major corporation;
5. His disabilities now cause him to go home early on occasions and thus restrict his earning activities;
6. I consider it less likely that the plaintiff would consider establishing his own business because of his current difficulties;
7. The plaintiff's current limitations require him sometimes to go home early from his present work.
I believe there is a clear possibility that the plaintiff will suffer economic loss in the future as a result of his loss of earning capacity within the above appellate authorities due to the continuing problems which Dr Bodel has identified in his report. On page 6 of his report, Dr Bodel expresses the opinion that the plaintiff should be able to continue with the type of work that he is currently doing into the future and this would include full-time office based work activity with travelling.
Since the preparation of Dr Bodel's report, the plaintiff has moved back to the United States and has taken on duties with Cushman & Wakefield, commercial real estate agents. The plaintiff's evidence was that his duties involved him travelling frequently going out to commercial/industrial and office premises in relation to sales and leases. He gave evidence that he found that on occasions this level of activity aggravated his condition in his back and neck which required him to go home early and to rest.
Although I have rejected the plaintiff's assertion that if he was in the condition he was in prior to the accident that he would have been able to increase the number of clients so far from which he obtained commissions from 10 to 30, I consider it is appropriate within the authorities that I have set out above to allow a buffer to the plaintiff.
Clearly the plaintiff's ongoing pain and restrictions in his back and neck limit him. I think it is likely that he will be limited in the future to some degree if he remains in commercial real estate or similar substantially office based activities where reasonable travel or physical exertion is required.
In my view, the impact of the plaintiff's injury and loss of capacity upon the economic benefit from exercising a full earning capacity is difficult to determine. However, it appears clear to me that the plaintiff in his current occupation would be able to apply himself with increased vigour if he was not injured in the accident and did not have his current restrictions. Based on Dr Bodel's report, the plaintiff's current problems are likely to continue for the foreseeable future. Following the injury, the economic effect of the plaintiff's reduced earning capacity cannot be determined other than by adopting the broad approach of a buffer. The approach to assessing such a buffer is necessarily "impressionistic" within the appellate authorities.
The assessment must also be made in the following circumstances:
1. After the accident the plaintiff left Caltex because he did not obtain a promotion he sought;
2. After the accident the plaintiff left AMP Technologies because it was having financial difficulties and he was not being paid regularly;
3. He then decided to return to the United States;
4. He obtained the employment with Cushman & Wakefield before he returned to the United States;
5. It was not unreasonable for the plaintiff to take that employment even though it appears to involve slightly greater exertion and less remuneration. The only limitations identified by Dr Bodel in his report were that it would be unwise for the plaintiff to undertake heavy labouring activities and that he should avoid repetitive bending, twisting or heavy lifting over about 15kg. Clearly the plaintiff would not have continued with the work he had in Australia.
Taking into account all of the above matters, I think it is appropriate to allow the amount of $50,000 by way of a buffer. This takes into account the continuing restrictions which the plaintiff has as a result of the accident, their effect on his current employment position, the fact that his current employment is reasonable and requires more exertion and further travel and the plaintiff's evidence of the difficulties which he has from time to time in his employment. In my view, an appropriate figure cannot be quantified with precision and the amount proposed as a buffer will compensate the plaintiff for potential economic losses arising from his continuing restrictions into the future. I accept that the plaintiff taking time off for complaints with his neck and his back may have some impact on his future earnings and promotion prospects even though that is difficult of assessment.
[6]
Commercial care
A claim is made by the plaintiff for an award of damages in the sum of $5,000 for commercial care. The defendant opposes any award.
The plaintiff gave limited evidence in relation to this issue but stated that he needed assistance with heavier tasks including washing his car. He quantified this need at four hours per week.
The evidence is that the plaintiff and his wife complete all domestic duties presently, including grocery shopping, but with some difficulties.
The evidence of Ms Hyjer is that they spend about half an hour a day doing domestic duties but this is shared between the two of them. She also gave evidence that the plaintiff washed and vacuumed his car and that sometimes this occurred weekly and sometimes fortnightly.
The defendant refers to the report of Dr Bodel which stated that the plaintiff "does not require any specific ongoing domestic assistance now or is it likely to be required in the future."
In Miller v Galderisi [2009] NSWCA 353, the Court of Appeal set aside an award of damages for commercial domestic assistance where it held that there was no evidence that the gratuitous assistance being provided to the plaintiff would cease. Accordingly, the Court of Appeal held that there was no evidence that commercial care was necessary. At [18] in Galderisi the Court of Appeal referred to "a need for commercial domestic assistance likely to arise in the future".
In White v Benjamin [2015] NSWCA 75 Basten JA (with whom Meagher JA agreed) considered at [85]-[88] for there to be a need to consider the whole of the family circumstances of the plaintiff and the provision of domestic assistance.
In the recent case of Smith v Alone [2017] NSWCA 287, Macfarlan JA (with whom Meagher and White JJA agreed) considered in detail the principles relating to commercial care and assistance at [72]-[78].
It is clear in the present case that no gratuitous care was provided to the plaintiff amounting to at least six hours per week and accordingly no recovery can be made for gratuitous care under the Act.
In Smith, Macfarlan JA referred to asking the question whether commercial care was "necessary" (at [73]) and whether commercial care would be "needed in the future": at [75]. At [77], his Honour stated that he considered that the appellant in that case had established "a need for commercial care and assistance".
Applying those principles to the present case, I do not consider that the plaintiff has established a need for commercial care and thus a need for damages for the provision of future commercial care as he asserts. In coming to this conclusion, I do not regard it as necessary for a plaintiff to establish a "need" for commercial care in circumstances where a plaintiff completes domestic duties with great difficulty or in great pain and over a lengthy period.
However, the plaintiff in the present case is only 30. His wife is also young. They are able to complete domestic duties including cleaning, grocery shopping and washing the family car if they assist each other and they pace their work. In those circumstances, I do not consider that it is appropriate to make an award for future commercial care for a need based on the authorities which I have referred to above.
[7]
Disposition
Accordingly, I would allow the following:
Past out-of-pocket expenses $1,292.15
Future out-of-pocket expenses $4,000.00
Future loss of earning capacity (buffer) $50,000.00
Future commercial care $0
Total $55,292.15
[8]
This sum should be reduced by 25% for the contributory negligence found which gives a sum of $41,469.11.
The parties should check my calculations and bring in agreed Short Minutes of Order to reflect the damages to be awarded.
I accordingly make the following orders:
1. Judgment for the plaintiff;
2. The parties are to bring in Short Minutes of Order within seven days reflecting these reasons;
3. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed;
4. Liberty to the parties to approach the court if a different costs order is sought to that set out in (3) above;
5. Exhibits to be returned in 28 days.
[9]
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: 02 February 2018
In cross-examination, the plaintiff was asked numerous questions in relation to the extent and severity of his injuries arising from the accident, the treatment for those injuries and the medical consultations which he had in relation to the injuries. The plaintiff gave evidence that he attended hospital with his wife after the accident and whilst at the hospital he felt pain in his neck and back and referred symptoms in his arm, but conceded that he did not himself seek treatment at the hospital. He stated that his main concern at the time was for his wife and he did not consider that he needed treatment then. He agreed that he did not seek treatment until 4 February 2015 when he went to see Dr Aroney as he did not feel he needed treatment until his condition got worse: T40.29.
The plaintiff was then asked questions in relation to the leave he allegedly took after the accident. The plaintiff stated that he did not take 14 days leave immediately after the accident but took a few days leave and took other holidays intermittently when required. This was when the pain was "unbearable": T40.48. It was put to the plaintiff that Caltex's leave records showed that he did not take any time off work after the accident and he said that the records were incorrect. He stated that his manager must not have recorded the leave properly. He denied that he did not take any leave after the accident.
The plaintiff was cross-examined in relation to his claim that he could not afford to see a head and neck specialist to whom he had been referred by a general practitioner. He agreed that he was earning $1,200 per week at the time but stated that he was supporting his wife who only worked part-time and earned limited money and was also attending university. It was put to the plaintiff that he did not see Dr Sheu in relation to his condition arising from the accident. He denied this and said that that was one of the reasons he saw her as well as a return of his bronchitis. It was put to him that there was no mention in Dr Sheu's notes of anything to do with complaints in his neck and back but the plaintiff said that that was one of the reasons why he saw Dr Sheu. He agreed that he told Dr Sheu that he had played rugby union in America and was also playing it in Australia but denied saying that he played professional rugby. He stated that Dr Sheu would not provide him with a report.
It is noted that there is no reference in the records of Dr Sheu which are part of Exhibit 1, to the plaintiff complaining about his neck or back. However, some caution must be exercised in relying on medical notes: Mason v Demasi [2009] NSWCA 227 at [2].
The plaintiff agreed that at the end of February 2015 he had driven with his wife to Byron Bay to see his wife's family. He stated that they shared the driving and stopped and rested on occasions. He agreed that he did not seek medical attention in Byron Bay but only on his return to Sydney in relation to his bronchitis. He agreed that at the time his bronchitis was more important than his injuries because he had trouble breathing.
The plaintiff was cross-examined in relation to his evidence in chief that he had seen a physiotherapist on five occasions in Australia. He said that he paid for the sessions with the same physiotherapist out of his pocket. He denied that he told Dr Bodel that he had only seen a physiotherapist on one occasion. He also denied saying to Dr Bodel that he was unable to have physiotherapy because of funding issues but said that he told Dr Bodel that he could not "continue" to have physiotherapy because of funding issues. The plaintiff said that he had difficulty affording the physiotherapy because it was more than $100 a treatment. The plaintiff also denied that he sought no further attention for his injuries after the first attendance with Dr Aroney and stated that he saw Dr Herron, also in March 2015.
The plaintiff was asked questions about why he did not seek more medical attention in relation to the pain he was allegedly suffering from arising from the accident. He said this was because he was receiving some physiotherapy treatment and a regime of home exercises which had been recommended for him. The plaintiff denied that the reason he did not see Dr McDonald as referred by Dr Herron was because he was improving and he said it was because he could not afford the medical consultations: T47.6.
The plaintiff agreed that he had gone on a camping holiday in the US in mid-2015 but said this was a family annual gathering and could better be described as "glamping" and was much less rigorous than normal camping. The plaintiff was asked why he did not request financial assistance from his parents for treatment. He said that he had but they were already helping him financially periodically anyway and declined to provide further assistance: T47.42.
The plaintiff was asked why he did not consult doctors in the second half of 2015 in relation to his accident injuries. It was put to him that the symptoms were not severe enough to do so. He denied this and said that there was nothing the doctors could do to improve his symptoms and he maintained his regime of home exercises. The plaintiff frankly conceded that he had received no treatment from any general practitioner after the middle of 2015 in relation to the accident injuries. He denied this was because he was not suffering any significant symptoms and said it was also because he could not afford continuing treatment from a physiotherapist. He denied that he was exaggerating the symptoms of his injury as at mid-2015.
The plaintiff was cross-examined as to why he left Caltex and then AMP Technologies. He conceded that this was for reasons unconnected to the accident. The plaintiff was cross-examined about his salaries but the cross-examination revealed that the payment from AMP Technologies was in US dollars which was an increase in the salary the plaintiff was paid by Caltex.
The plaintiff frankly conceded that he received no medical treatment for his injuries in 2016. He said this was not because the injuries were not troubling him at the time or impacting on his jobs in Australia.
The plaintiff was asked a number of questions about the commissions which he earned at his current job with Cushman & Wakefield. He agreed that it took him some months before he received his first commission in April 2017 and that he had to pay back a "draw" of $30,000 before he received further commissions. He agreed also that he was starting to receive increasing commissions and he hoped that his commissions would continue to increase in the future. He stated that he hoped to stay with that company. In giving this evidence the plaintiff was frank and in my view open and honest in his answers.
The plaintiff was asked some questions about the alleged difficulties which he had at home performing domestic duties. He said that the difficulties were with cleaning, vacuuming, mopping, cleaning the bathroom, undertaking grocery shopping and other household tasks. He gave evidence that he lived in a two bedroom two bathroom apartment which had both floorboards and carpet. The plaintiff gave evidence that prior to the accident he shared domestic duties with his fiancée and that they continued to share domestic duties now. In relation to shopping for groceries, he agreed that he could and did divide heavy bags so that they were easier to carry. It was put to the plaintiff that he was not going to pay anyone for undertaking cleaning or grocery shopping and he agreed that "at this point" he was not: T61.17.
The plaintiff was then asked a number of questions in relation to the accident. The plaintiff stated that he had been living at Francis Street for about six months at the time of the accident. He said that he very rarely drove to work but used the car daily for trips such as going to the shops. He said that the Black Holden Barina motorcar involved in the accident was owned by him and he had it for about one and a half months prior to the accident. Prior to the purchase of the Barina, he said that he and his fiancée had access to his fiancée's father's vehicle which they had driven for about a year. Both the plaintiff and Ms Miller had full licences at the time.
The plaintiff agreed that on the morning of the accident there had been heavy rain and that the car had been parked overnight on the street. He agreed that the car windows and the side mirror were wet with rain but gave evidence that neither was foggy. The plaintiff said that the vehicle parked in front of him was about 2 metres in front (T64.5) and he did not have to reverse to exit from the car spot. He agreed that there was a hill further to the west and, as indicated above, the crest of the hill was about 50 metres away (T64.31). He conceded that traffic approaching where his car was located from west of the crest was obscured from his vision (T64.35) and that it was important once he checked that there was no traffic approaching to exit from the parked location without delay. The plaintiff agreed that it was always important to look for approaching traffic. The plaintiff denied that it was important to pull out in a timely fashion if this meant pulling out quickly. He said he pulled out very slowly and cautiously so he could keep an eye on traffic: T65.3-.12. When it was put to him that he had no reason to pull out in a slow and cautious fashion he rejected that and said that he had every reason to be cautious as part of safe driving. He said that there was no delay in pulling out from the parked area but similarly there was no reason to drive out quickly.
The plaintiff was cross-examined further in relation to physiotherapy services provided. It was agreed between the parties that the plaintiff attended physiotherapy in Australia on four occasions in March 2015. The plaintiff said that he had attended the chiropractor in America on four occasions since his return to the US and he said that two of these were paid in cash without an invoice and he was provided an invoice for the other two services. The plaintiff appeared to be frank in relation to this matter and I accept his evidence that he had four chiropractor consultations in America despite only having invoices for two of them.
In relation to the physiotherapy received in Australia, the plaintiff conceded that he had no further physiotherapy after March 2015. The plaintiff gave evidence that the physiotherapist gave him a regime of home exercises to undertake as he informed the physiotherapist that he was not in a position to afford funding further physiotherapy treatment after March 2015. The plaintiff gave evidence that despite receiving more income at AMP he did not have the available funds because he was not paid for a few months at the end of his service with AMP. Whilst I accept that this was the case, the plaintiff did not start work with AMP Technologies until well after the accident. Although the plaintiff denied that after March 2015 he had recovered from his injuries, I think it likely that the physiotherapy treatment was seen as expensive by the plaintiff, he thought he was improving and that the obtaining of a home exercise regime from the physiotherapist meant that further consultations, although desirable, were not necessary.
The plaintiff was further cross-examined in relation to the accident. The cross-examination was in the light of an unsworn statement, a statutory declaration and a motor accident personal injury claim form which the plaintiff had signed.
In relation to the unsworn statement dated 10 July 2015 which became Exhibit 3 in the proceedings, the plaintiff confirmed that he had reviewed this and it was correct.
Paragraphs 14-23 of the unsworn statement are as follows:
"14. Prior to the accident on 28 January 2015 about 8am I left home with my fiancée Rose. I was driving vehicle NSW registration BZ23ZT and Rose was seated in the front passenger seat. I had my vehicle parked directly out the front of my unit block. I was going to drive to work and drop Rose off at Bondi Junction.
15. I started my vehicle and indicated with my right blinker, then looked into my side mirror and over my right shoulder for any traffic. I saw that it was clear. I slowly started pulling out of the parking space and I now had my vehicle positioned in the middle of the road but on an angle. I was just about to start straightening the vehicle when Rose yelled out "Drew".
16. I then looked again in my mirrors and saw a taxi coming towards me from behind me. I braked and stopped assuming that the taxi would either stop or swerve to avoid me. When I first saw the taxi he was at the top of the hill. He had ample time to either stop or swerve to avoid the accident.
17. I heard skidding just prior to the accident. I then felt an impact. The front left portion of the taxi collided with the driver's door of my vehicle. When the taxi impacted with my vehicle the taxi was slightly turned to the right which suggests to me that he tried to swerve at the last second to avoid the accident.
18. The time from when I last looked in my mirrors and when Rose yelled out "Drew" was only a split second. I didn't delay leaving the car space after I last looked in my mirrors.
19. On a scale of 1 to 10 with 1 being minor and 10 being greater, I estimate the impact to be 9.
20. After the accident happened, both our vehicles stopped where the collision had occurred.
21. Upon impact I saw that Rose had hit her left shoulder and the left side of her head on the passenger door and window. I asked Rose if she was alright and she moaned. She was conscious and I heard her also say "Ow" upon impact. She appeared to be in shock and she remained in the vehicle.
22. I got out of my vehicle and walked around to Rose's side to make sure she was alright. I opened the passenger door and she stayed seated in the vehicle.
23. I then went to the taxi driver who was still seated in his vehicle. He said, "I'm sorry, I'm sorry, I couldn't stop." I saw no passengers within his taxi. I said, "Are you going to get out of the car?" He then got out of the taxi and looked at the damage to his car. He wasn't concerned at all with Rose or myself. He then said, "Now it's ruined my day, I have to get the car fixed." I saw that his taxi had a broken left headlight and the front bumper bar was bent."
Exhibit 5 in the proceedings was a Statutory Declaration signed by the plaintiff on 18 September 2015.
Paragraphs 2 to 9 of that Statutory Declaration are as follows
2. On 28 January 2015, at about 8:00am I left home with my fiancée Rosalie. I was driving vehicle NSW registration number BZ2 3ZT and Rosalie was seated in the front passenger seat. I had my vehicle parked directly out the front of my unit block. I was going to drive to work and drop Rosalie off at Bondi Junction. I started my vehicle and indicated with my right blinker, then looked into my side mirror and over my right shoulder for any traffic approaching from behind. I saw that there was no traffic approaching from the rear and the road was clear. I slowly started pulling out of the parking space and I now had my vehicle positioned in the middle of the road but on an angle. I was just about to start straightening the vehicle, when Rosalie yelled out, "Drew!'.
3. I then looked again in my mirrors and saw a taxi coming towards me from behind me. I braked and slopped assuming that the taxi would either stop or swerve to avoid me. When I first saw the taxi he was at the top of the hill. He had ample time to either stop or swerve to avoid the accident.
4. I heard skidding just prior to the accident. I then felt an impact. The front left portion of the taxi collided with the driver's door of my vehicle. When the taxi impacted with my vehicle, the taxi was slightly turned lo the right which suggests to me that he tried to swerve at the last second to avoid the accident.
5. The time from when I last looked in my mirrors and when Rosalie yelled out, "Drew!" was only a split second. I didn't delay leaving the car space after I last looked in my mirrors.
6. On a scale of 1 to 10 with 1 being minor and 10 being greater. I estimate the impact to be a 9.
7. After the accident happened, both our vehicles stopped where the collision had occurred.
8. Upon impact, I saw that Rosalie hit her left shoulder on the left side of her head on the passenger door and window. I asked Rosalie if she was alright and she moaned. She was conscious and I heard her also say, "Ow" upon impact. She appeared to be in shock and she remained in the vehicle. I got out of my vehicle and walked around to Rosalie's side to make sure that she was alright. I opened the passenger door and she stayed seated in the vehicle.
9. I then went to the taxi driver who was still seated in his vehicle. He said, "I'm sorry, I'm sorry, I couldn't stop". I saw that there were no passengers within his taxi. I said, "Are you going to get out of the car?" He then got out of the taxi and looked at the damage to his car. He wasn't concerned at all with Rosalie or myself. He then said, "Now it's ruined my day, I have to get the car fixed". I saw this taxi had a broken left headlight and the front bumper bar was bent.
The Motor Accident Personal Injury Claim Form that became Exhibit 4 in the proceedings had a picture drawn of the accident at question 14. The plaintiff gave evidence in re-examination that this was drawn by his solicitor under his direction. The picture showed that the car had virtually left the kerbside parking lane on the immediate approach of the taxi to it.
Question 15 was as follows: "Describe what happened in the accident. Include details of who you believe caused it." The plaintiff replied as follows (the plaintiff gave evidence that this was written by his solicitor but he did not disagree with it):
"I was the driver of vehicle reg no B2232T. Rosalie was a front seat passenger. I started the engine, put on the right indicator, looked over my right shoulder, there were no vehicles approaching; looked into the right driver side mirror again no vehicles approaching, and then slowly moved the vehicle out from the kerb, Rosalie Miller my front seat passenger called out, I stopped the vehicle and the taxi vehicle collided heavily with my front driver's side door."
These various accounts are in general terms consistent, in my view, with the plaintiff's oral evidence.
Mr Hyjer was further cross-examined in relation to the accident. He claimed that when his vehicle pulled out from the kerb in Francis Street that there was a vehicle parked in front of him but not a vehicle parked immediately behind him: see also T7.33. He was shown a diagram which became Exhibit 2 which he agreed he initialled. It was put to him that there was not a car space behind him shown in that diagram. He denied that, and said there was sufficient space in the diagram for there to be a vacant spot behind his car. I accept Mr Hyjer's evidence on this issue as it appears to be consistent with the photographs in Exhibit A numbers two and four (recognising the caution which must be exercised with photographic evidence). There is no suggestion the diagram was drawn to scale.
Mr Hyjer indicated that the time period from when his fiancée called out "Drew" until the time of collision was between one and two seconds: T79.16-31. He gave evidence that he stopped the car after seeing the taxi. Mr Hyjer also stated that paragraph 15 of his unsworn 10 July 2015 statement was correct where he states: "I now had my vehicle positioned in the middle of the road but on an angle".
Mr Hyjer confirmed that he had fully pulled out from the kerb in his car but it was still at an angle. At one stage Mr Hyjer said that he had reversed his car back before he got out after the collision. Despite asserting that he had given this evidence in chief, he had not. Having regard to the later evidence of Mr Lopes, which I will come to, I accept that the photographs taken of the black car show the general position of the black car at the time of collision, although it may have been pushed a small distance forward and slightly closer to the kerb.
Mr Hyjer was asked why his wife saw the taxi approaching before he did. Mr Hyjer gave evidence that after he looked at the mirrors to satisfy himself that there were no vehicles approaching he started pulling out slowly and when his wife yelled out "Drew" he turned around and saw the taxi approaching and immediately braked and stopped his car. He agreed that when he saw the taxi it was about 50 metres away or "maybe less": T88.35. He agreed that he thought the taxi had ample time to stop.
Mr Hyjer denied that he had ample time to straighten up and proceed forward to avoid the collision. Although Mr Hyjer was cross-examined heavily in relation to this concept, Mr Hyjer's response that he thought it was not appropriate to continue was in my view the better and more prudent approach to adopt at the time. With the taxi approaching, in my view it was better to stop rather than to proceed out and involve the potential for a collision at a different angle and speed.
Mr Hyjer gave evidence that there was only light rain at the point of collision but after the accident the rain became very heavy. He denied that the taxi was not travelling at an excessive speed. Mr Hyjer also denied that he pulled out from the kerb without having his indicator on at all.
It was put to Mr Hyjer that he said to the taxi driver that he "did not see you coming." He denied this and denied that his lack of observation of the taxi caused the collision.
In re-examination, Mr Hyjer acknowledged that Exhibit 6, the Caltex leave records, did not indicate that he had taken leave after the accident. Despite this, he said that his clear recollection was that he did ask for leave and took some leave immediately after the accident. He said he asked his immediate manager. Mr Hyjer said that at the time, Caltex was going through a large restructure and many employees had been retrenched. This was put forward as a reason why his leave may not have been recorded.
In relation to the issue of physiotherapy treatment, Exhibit E which was a letter from CIC Allianz Insurance Ltd dated 18 March 2015 shows that approval was not given as at that time for sessions of physiotherapy by the insurer. Mr Hyjer gave evidence that he did not receive income for the last three months he was at AMP Technologies and he had to take out a loan of $12,000 for living expenses
The plaintiff struck me as giving his evidence honestly and to the best of his recollection. I did not gain the impression that he exaggerated his evidence or that he embellished it for the purposes of improving his case. I reject the defendant's attack on his honesty. Mr Hyjer made concessions where appropriate. The plaintiff readily conceded that he and his wife struggled through with their domestic activities after the accident, that the rate of his commissions was improving with his current job, that he hoped they would continue to improve and that he did not consult doctors apart from Dr Bodel in relation to his injuries arising from the accident in the second half of 2015 or in 2016. As the case developed some issues arose as to the accuracy and reliability of aspects of the plaintiff's evidence which I will consider further below.
The plaintiff gave evidence that he saw Dr Sheu but this is not referred to in her notes.
Although this is a matter to be taken into account, in my view caution should be exercised in placing too much weight on medical notes or in the history set out in medical reports for the reasons set out by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2]. See also Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 at [144].
It may be that the plaintiff was mistaken in relation to what he told Dr Sheu but in my view it is equally possible that the doctor did not record these details. Another possibility is that he accompanied his wife when she saw Dr Sheu and mentioned to the doctor his own problems. Even if the plaintiff is in error in this matter, I do not regard it as substantially affecting his reliability or credit. I did not conclude that he was lying on this issue.
Duty of care and breach
Under s 3B(2)(a) of the Civil Liability Act 2002 (NSW) ("CLA"), Divisions 1-4 and 8 and Part 1A (Negligence) apply to "motor accidents". Accordingly, in determining whether a driver of a motor vehicle has breached his or her duty of care and whether any breach was causative of any injury suffered by a plaintiff in any motor vehicle accident, the court must apply the sections in those divisions including ss 5B, 5C and 5D (relating to causation).
It is useful to set out some of the general principles accepted by appellate courts in relation to the obligations which a driver of a motor vehicle owes to others.
In Manley v Alexander [2005] HCA 79; 80 ALJR 413 the majority of the High Court stated as follows:
"[11] No doubt the appellant's attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.
[12] It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Rd at 4.00 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events."
This statement has been referred to with approval in Townsend v O'Donnell [2016] NSWCA 288 at [45]:
"[45] First, the appellant did not submit that the primary Judge failed to apply the correct legal principles. Her Honour referred to ss 5B, 5R and 5S of the CL Act and clearly bore those provisions in mind. Her Honour also referred to the observations of the majority of the High Court in Manley v Alexander, where their Honours pointed out that:
recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path."
Causation
Sections 5D and 5E of the CLA provide as follows:
"5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5E Onus of proof
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
Therefore, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
The relevant principles in relation to Section 5D of the CLA are set out in the following cases: Strong v Woolworths Ltd (2012) 246 CLR 182 at [18]; Wallace v Kam (2013) 250 CLR 375 at [16]-[19]; and Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22] per Bathurst CJ at [198], at [197] per Beazley P and at [319]-[324] per Basten JA.
The determination of factual causation in accordance with Section 5D(1)(a) of the CLA involves the application of a "but for" test of causation. That is to say, a determination that in accordance with the section that negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd, above, at [18].
The question in the present case is whether the breach of duty of care by the defendant caused the collision and caused the injuries of which the plaintiff complains. But for the breach of duty in the present case the collision would have been avoided and the plaintiff would not have suffered the injuries of which he complains.
Contributory negligence
In Calcagno v Dent [2015] NSWDC 308 Mahony DCJ stated the following general principles in relation to contributory negligence under the Act and ss 5R and 5S of the CLA:
[87] Contributory negligence in relation to a motor accident is to be determined by application of both s 138 of the Motor (Accidents Compensation) Act 1999 ("MACA") and ss 5R and 5S of the CLA.
[88] Section 138 of the MACA provides relevantly as follows:
"Contributory negligence - generally
(1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.
…
(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.
(4) The court must state its reasons for determining the particular percentage."
[89] Division 8 of the CLA is headed "Contributory negligence". It provides:
"Standard of contributory negligence
5R (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose;
(a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) The matter is to be determined on the basis of what that person knew or ought to have known at the time.
5S Contributory negligence can defeat claim
In determining the extent of the reduction in damages by reason of contributory negligence, a court may determine a reduction of 100 per cent if the court thinks it is just and equitable to do so, with the result that the claim for damages is defeated."
[90] In Gordon v Truong [2014] NSWCA 97, Basten JA (Macfarlan JA agreeing), set out the principles applicable in determining contributory negligence by application of s 138 of the MACA and ss 5R and 5S of the CLA as follows:
"15 The principles applicable in determining whether a person has been negligent include the "General principles" set out in s 5B. Applying these principles as required by the statute is not without its difficulties. Where the plaintiff and defendant are both drivers in control of similar vehicles, questions of negligence and contributory negligence can readily be assessed according to the same broad standards. However, where the plaintiff is a pedestrian and the defendant a driver of a vehicle, the negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is, generally, to be assessed against a risk of harm to him - or herself. (It is possible that the carelessness of a pedestrian may create a risk of harm to other drivers, for example, if a car is forced to swerve to avoid a pedestrian, but that is not this case). The harm which the motor vehicle is likely cause to the pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind.
16 The purpose of s 5R may be gleaned from the recommendations in the Review of the Law of Negligence: Final Report (September 2002) which are, in this case, reflected in the statute. At par 8.7, the Report stated:
Should the law allow people to take less care for their own safety than it requires others to take for their safety? … Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?
17 The Report then stated at par 8.11:
Leading text book writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same. There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendant. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel's view, this approach should not be supported.
18 The penultimate sentence was supported by reference to three judgments in the High Court and two in the South Australian Supreme Court. The comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760at 762-763, are in point. Referring to the South Australian equivalent of the 1965 Act, s 9(1)(b), Murphy J stated:
The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision … For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision."
[91] The correct application of these principles was further explained in Davis v Swift [2014] NSWCA 458 by Meagher JA (with whom Leeming JA agreed) as follows:
"23 Section 138(1) of the MAC Act provides that the 'common law and enacted law as to contributory negligence' apply to an award of damages in respect of a motor accident, except as provided by that section. The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act 1965 (NSW (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility.
24 The starting point is s 9(1) which provides that if the claimant 'suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person' the damages recoverable in respect of the wrong 'are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage'. That description of contributory negligence reflects the common law position that the claimant's lack of care must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21].
25 The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34 ; 59 ALJR 492 at 494 as follows:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
26 Section 138(3) is in different terms to s 9(1) and the other State provisions based on s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (UK). Whereas those provisions require the Court when assessing what is 'just and equitable' to have regard 'to the claimant's share in the responsibility for the damage', s 138(3) provides:
(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.
27 Section 74(3) of the Motor Accidents Act 1988 (NSW) is in the same terms. In Nicholson v Nicholson (1994) 35 NSWLR 308 at 333-334, Mahoney JA suggested a reason for the use of the broader language. The concept of contributory negligence involves the plaintiff's lack of care contributing to the damage. However, the effect of s 74(2) which is in similar terms to s 138(2), is to require a finding of contributory negligence in cases where the act or omission may not have caused or contributed to the damage claimed. Relevantly in that case, s 74(2)(c) required a finding of contributory negligence 'where the injured person … was … not wearing a seat belt as required' by law. That being the position, the broader language may have been used to allow the Court in such cases to recognise that it would be unjust and inequitable, where there was no such causation or contribution, to reduce the damages otherwise recoverable. The remaining members of the Court, Kirby P with Meagher JA agreeing, also held that the finding of contributory negligence required by s 74(2)(c) did not constrain the inquiry as to what was 'just and equitable' or prevent consideration of all of the circumstances, including whether the absence of a seat belt contributed to the damage claimed.
28 In a case that does not involve a finding of contributory negligence made under s 138(2) or deemed fault on the part of the owner or driver, an assessment of what is 'just and equitable in the circumstances of the case' will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek. See the discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180 ; 43 MVR 315 at [54]-[63]. In Joslyn v Berryman [2003] HCA 34 ; 214 CLR 552 at [157] Hayne J considered s 74(3) to require the undertaking of such a comparison: cf Kirby J at [133]].
29 Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence."
[92] More recently, in Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (Barrett and Gleeson JJA agreeing) said as follows:
"161 The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case.
162 As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a) - (d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 138(3) required the court to reduce the damages recoverable 'by such percentage as the court thinks just and equitable in the circumstances of the case.'"
A more expansive consideration of the duty owed by drivers was made by Meagher JA (with whom Macfarlan and Emmett JJA agreed) in Marien v Gardiner [2013] NSWCA 396 where his Honour stated as follows at [33]-[37]:
"[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.
[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).
[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48 ; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path".
[36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."
Marien has also been approved recently by the Court of Appeal: Logar v Ambulance Service of NSW Sydney Region [2017] NSWCA 274 at [142].
Accordingly, in my view the defendant owed a duty of care to the plaintiff as another road user to exercise reasonable care in the driving of his motor vehicle as he was proceeding down Francis Street on the morning of the accident.
Sections 5B and 5C of the CLA are as follows:
"5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
As found above, the plaintiff had put on his indicator to warn of his intention to move out from the kerb parking position; the defendant was proceeding at or under 30kph down Francis Street towards Campbell Parade; the indicator would have warned the defendant of a potential exiting manoeuvre; the plaintiff had moved his vehicle out from the parking position at an angle to the kerb with part of the rear of the vehicle still within the kerb lane when he was alerted to the presence of the defendant's vehicle coming down the hill and he brought his car to a stop; as the defendant was proceeding down the hill at or under 30kph it was lightly raining; the plaintiff had failed to see the defendant's vehicle which had come over the hill when he commenced pulling out from the kerb; and the defendant had failed to see the plaintiff's vehicle even though the indicator was on and the exiting manoeuvre had commenced until he was halfway down the hill from the crest at least 25 metres from the point of collision.
The defendant was in my view clearly inattentive and careless in not seeing the plaintiff's vehicle exiting at an angle from the kerb with its indicator on and reacting promptly by applying his brakes.
Applying s 5B of the CLA to the facts of the case:
1. The risk of the defendant's vehicle hitting the plaintiff's vehicle and causing injury if the defendant did not stop or take evasive action or overtake the plaintiff's vehicle was clearly a foreseeable risk, being a risk of which the defendant ought to have known;
2. The risk was clearly not insignificant. The plaintiff's vehicle was emerging and it would have been clear to a reasonable person that if the defendant proceeded down the hill in the left hand road lane that his vehicle would come in to collision with the plaintiff's vehicle. The circumstances therefore required him to halt or to take evasive action or to overtake;
3. In all the circumstances, a reasonable person in the defendant's position would have taken the precautions of stopping, taking evasive action or overtaking the plaintiff's vehicle in a slow and cautious manner;
4. There was a high probability that a collision would occur if care was not taken by the defendant;
5. The harm which could have occurred as the driver's door was at an angle partly facing the defendant's vehicle was serious;
6. The burden of taking precautions on the defendant to avoid the risk of harm by stopping his vehicle, swerving or overtaking was not significant;
7. The social utility of the defendant in driving his taxi was not such that the risk of harm created should be excused.
The defendant points to Section 5C of the CLA and the statements of Meagher JA in Marien. In my view, the defendant should at least have taken steps to stop his vehicle in all the circumstances.
Accordingly, in my view the defendant failed to take reasonable care for the safety of the plaintiff and any passengers in his car having regard to all the circumstances of the case. The standard to apply is an objective and impersonal one and is to be addressed prospectively by reference to what a reasonable driver in the defendant's circumstances would have done. A reasonable driver would clearly have taken at least steps to stop his vehicle and/or swerve and/or overtake the plaintiff's vehicle.
Accordingly, I find that there was a breach of the duty of care owed by the defendant to the plaintiff for the reasons which I have given.
Accordingly, causation is established. There is no reason why it is not appropriate for the scope of the defendant's liability to extend to the harm so caused: s 5D(1)(b) of the CLA. There is also no reason why responsibility for the harm should not be imposed on the defendant: s 5D(4) of the CLA.
Although the decision of Mahony DCJ was overturned by the Court of Appeal (Dent v Calcagno [2016] NSWCA 289) his Honour's consideration of the principles of contributory negligence was not questioned: see at [58] and [91].
The decision of the Court of Appeal in Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, to which Mahony DCJ referred, was quoted with approval by Gleeson JA (with whom Leeming JA and Davies J agreed) in Boateng v Dharamdas [2016] NSWCA 183 at [129].
Accordingly, under s 5R of the CLA, a court is required in determining whether a person is contributorily negligent to apply the provisions of ss 5B and 5C of the CLA which I have already set out above in relation to the breach question.
In the present case, I have found that Mr Hyjer pulled out from the kerb without seeing the defendant driving his car down the hill from the crest of the hill.
In my view, this was careless and inattentive of him and he should not have pulled out from the kerb spot until the defendant had passed unless he was of the view that he could safely and clearly complete the manoeuvre before the defendant was close to his vehicle. Having regard to the rain and the fact that he had to pull out slowly from the kerb, in my view this was a very difficult manoeuvre to complete safely in the circumstances.
Applying the principles in ss 5B and 5C in determining whether the plaintiff is contributorily negligent:
1. The risk was foreseeable of the defendant potentially not having time to stop his car and was a risk of which Mr Hyjer ought to have known;
2. The risk in my view was not insignificant in all the circumstances having regard to the rainy conditions;
3. In my view, a reasonable person in the position of Mr Hyjer would have taken the precaution of not pulling out from the kerb until the taxi passed;
4. The probability that a collision would have occurred was in my view slight but more than insignificant;
5. A collision was potentially serious as it would hit the side of the car where Mr Hyjer was the driver;
6. The burden of taking precautions to avoid the risk of harm by not pulling out from the kerb was insignificant;
7. The social utility of Mr Hyjer's activity which created the risk was not of a nature as to mean that he should not have taken the steps.
Accordingly, in all the circumstances I find that Mr Hyjer did not take reasonable steps for his own safety when he pulled out from the kerb without seeing the defendant's vehicle.
Therefore, in my view Mr Hyjer was contributorily negligent.
Section 138 of the Act provides as follows
"138 Contributory negligence - generally
(1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.
…
(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.
(4) The court must state its reasons for determining the particular percentage."
I accordingly have to consider the appropriate percentage which I think is just and equitable in the circumstances of the case by which the damages to be recovered by the plaintiff should be reduced. In approaching that task I take into account the principles stated in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 at [8]-[10] concerning relative culpability and causal potency.
I take into account all the circumstances of the case including:
1. That the plaintiff's car was black;
2. That it was raining lightly;
3. That the plaintiff had applied his indicator before pulling out from the kerb;
4. The plaintiff pulled out slowly from the kerb;
5. That the plaintiff was obliged to give way to traffic proceeding eastwards down Francis Street;
6. The fact that the defendant's vehicle could be seen by a reasonable person but was not apparently seen by the plaintiff before he started pulling out;
7. The fact that the street was apparently a fairly busy street with traffic cutting through from other areas;
8. The potential for a serious accident;
9. The greater difficulty of the defendant stopping his car because of the rain;
10. The fact that the plaintiff was looking behind him whereas the defendant was facing the plaintiff's vehicle and could see the indicator of the plaintiff on;
11. The fact that the defendant eventually saw the plaintiff and applied his brakes;
12. The fact that the plaintiff stopped on seeing the defendant's vehicle;
13. The distance between the defendant's vehicle and the plaintiff's vehicle when the defendant should have seen the plaintiff's vehicle;
14. The ability of the defendant to stop in time to avoid a collision with the plaintiff's vehicle.
To determine what is just and equitable in the circumstances of the case involves, as part of the evaluative process, a comparison of each party's conduct.
Taking into account all the circumstances of the case, in my view the conduct of the defendant in all the circumstances was far more significant than that of the plaintiff. The defendant was driving ahead and could see the indicator. He was coming over the crest of the hill and proceeding down the hill and in my view would have had a clear view of the plaintiff's indicator during that process. He was proceeding at a slow speed no doubt because of the weather. Accordingly, in all the circumstances he should have stopped when he saw the plaintiff's vehicle exiting to allow it to continue with the manoeuvre of pulling out from the kerb. There is no evidence that another vehicle was coming the other way or was in the vicinity.
Taking into account all the circumstances, in my view the plaintiff's damages should be reduced by 25% on account of his contributory negligence.