McLennan v Antonios

The differing versions of the accident 4The plaintiff was driving her vehicle south along Cumberland Highway to the intersection of Canley Vale Road at approximately 11:30pm. She proposed to make a right hand turn into Canley Vale Road. The first defendant's vehicle was travelling in the opposite direction along Cumberland Highway. The plaintiff's evidence was that she stopped at the middle of the intersection and waited until the lights facing her turned red then, after first checking in front of her, commenced a right hand turn. The traffic in the opposite direction having come to a halt at the red lights, except for the empty last lane, the plaintiff made her turn. The first defendant sped along the inside lane closest to the building alignment and collided with her vehicle. 5The first defendant gave a similar version of seeing the plaintiff's vehicle stationary in the middle of the road, but states that the lights were green in his favour at all times and that the plaintiff's vehicle, which he observed only when at the intersection to be stationary, suddenly "popped out of nowhere" (T 135). He had no opportunity to take any evasive action and the vehicles collided. 6There were no witnesses to the accident, but a driver, Mr Tran, who had made a right hand turn in the same direction as the plaintiff, and who had previously observed the plaintiff's headlights in his rear vision mirror, heard the sound of the accident and looked over his shoulder. He stopped his car and approached the plaintiff's car, observing smoke coming from the engine. Fearing the plaintiff's car was about to "blow up", he and an unknown passer-by pulled the plaintiff from the vehicle. 7This witness gave his details to the police and later completed a police statement. Whether the lights were green or red is not referred to in the statement. In the witness box, Mr Tran stated that, after he heard the sound of the collision, he observed the lights were still green in the first defendant's favour. 8Neither the plaintiff nor the first defendant saw Mr Tran's vehicle at any time.

The plaintiff's evidence 9The plaintiff, who was born in 1990 and who was 19 years of age at the date of the accident, completed her schooling to the Higher School Certificate level, although for insufficient subjects to have a percentile (T 6). An enthusiastic gymnast, she completed a Level 1 Coaches course, which enabled her to coach all sorts of children both inside and outside school. She had started working as a gymnastics coach whilst still at high school (T 5) and continued this work after completing her schooling, being employed by the YMCA in Epping to teach gymnastics from a stage of basic forward rolls, bunny hops, handstands, cartwheels, front flips, back flips, use of pommel horses and the like (T 7). As a gymnastics teacher she needed to be able to provide the children with safety and support, and physical fitness was important. 10On the day in question, the plaintiff had been given the day off work, as it was her boyfriend's birthday. She was travelling from her boyfriend's home to the home where she resided with her mother and father, and this was a road she was familiar with as she had travelled it "everyday" (T 10). She had not had anything to drink. The weather was fine and the roadway was dry. It was in these circumstances that she came to the intersection at which the accident occurred: "Q. As you drew up, or drove up to the intersection, what was the light in front of you? A. Green. Q. You moved out into the intersection? A. Yes. Q. What was the situation with oncoming traffic, if any? A. There was a few cars coming through, I couldn't get through, so I waited. Q. Whilst you were waiting, did that green light change at all? A. Yes. Q. To what? A. Yellow. Q. When that occurred, what was the position in respect of those oncoming vehicles that you just told us about? A. Three cars had come to a stop. Q. Just pausing now, I want you to have a look at exhibit B now? A. Yep. Q. You see that the lanes are marked A, B, and C and D? A. Yes. Q. Please tell us in which lane the vehicles had come to a stop? A. A, B and C. Q. When that occurred, what was the position with the light that was facing you? A. It was red. Q. I beg your pardon? A. Red. Q. Incidentally, I should ask, was there any other sort of arrow, red arrow, orange arrow? A. No. Q. Just a single red light? A. Yes. Q. What happened next? A. I proceeded with my turn. Q. How far had you managed to proceed into the turn before something happened? A. I was in front of lane D. Q. I beg your pardon? A. I was in front of lane D. Q. D for dog? A. Yes. Q. What happened? A. The car came and hit my car. Q. The car that hit your car immediately before that happened, did you see which lane it was travelling in? A. D. Q. I want you to describe for her Honour, Ms McLennan, whether it was a forceful impact or a small impact, can you tell us? A. It was a forceful impact. Q. Did something in fact happen to your seatbelt? A. Yes, it snapped. Q. Did your vehicle then move in a different direction? A. Yes. Q. Where did it go? A. It came back it went back towards where I started in the middle of the island. Q. But on the wrong side of Cumberland Road? A. Yes." (T 10-13) 11The plaintiff was certain that as she approached the intersection the lights were green and that there was no vehicle travelling directly in front of her as she entered the right turn lane: "Q. As you approached the intersection were the lights green or red? A. Green. Q. Were they green for the entire time as you call recall as you approached the intersection? A. Yes. Q. Was it just effectively a green dot, no arrow. A. Yes. Q. You told us that you approached the intersection and you went into the right turn lane, correct. A. Yes. Q. As you entered the right turn lane were there any vehicles directly in front of you? A. Only the one that was turning in the opposite direction. Q. Just so I understand it, you mean the vehicle in a right turn lane travelling in the opposite direction to which you were travelling. A. Yes. Q. Similarly turning right into Canley vale Road but to the other side of Canley Vale Road. A. Yes. Q. Perhaps I can be a bit clearer. Were there any vehicles travelling directly in front of your vehicle when you entered the right turn lane? A. No." (T 82-83) 12The plaintiff described the change of lights as follows: "Q. In any event, you say that you came up into the right turn lane, and correct me if I'm wrong, there was traffic travelling in the opposite direction, is that right? A. Yes. Q. When you first got to the lights you stopped did you? A. Yes. Q. Did you stop into the intersection or did you stop actually at the stop line. Do you understand what I mean by that? A. I stopped at the stop line and then moved forward. Q. When you first stopped at the stop line was there traffic coming the other way? A. Yes. Q. At what point did you move forward as in how long after you stopped at the stop line? A. I don't recall how long I waited. Q. In any event, you say you then moved forward into the intersection and, again, do you say that at the time you moved forward into the intersection there were no cars directly in front of you also turning right? A. There was noone in front of me. Q. Well I want to suggest to you that that's just wrong, isn't it? A. No. Q. There was a car directly in front of you wasn't there? A. No. Q. You say that the lights then changed to red, is that right? A. Yes. Q. You said that the lights turned red and that in fact a number of vehicles then stopped at the red lights, is that right? A. Yes. Q. How many vehicles do you recall stopped at the red lights? A. Three. Q. In which lanes were they, and if you want to adopt the same you remember the A, B, C and D Mr Khandhar asked you yesterday about? A. Yes, A, B and C were stopped. Q. They were three cars across next to each other on the stop line, is that right? A. Yes. Q. Were there any further cars stopped behind the cars in either A, B or C? A. I don't remember." (T 83-84) 13The plaintiff described her view of the oncoming traffic, including any traffic behind these cars which had stopped as follows: "Q. The position is that from where if in fact you were at that point, you were into the intersection and there were cars stopped across those lanes, I suggest to you that you would be able to see cars approaching beyond those cars wouldn't you? A. Yes. Q. Yet you say that right up until the moment of impact you did not see this car at all. That's the case, isn't it? A. Yes. Q. So that even from the time from when you were stopped in the intersection, you saw other cars pull up, correct. A. Yes. Q. You say this other vehicle that was ultimately involved was sight unseen, that's what you say. A. Yes. Q. But those cars then stopped, correct. A. Yes. Q. You say that vehicle still was sight unseen, correct. A. Yes. Q. Then as you proceeded to turn right again I suggest you still would have had a view beyond those vehicles, wouldn't you, up the street, up the hill? A. I wasn't looking for any other vehicles. Q. Well at what point do you say you stopped looking for other vehicles, at what point. Was it before you started to turn, was it in the course of your turn? A. It was in the course of the turn. Q. How far into the turn was it that you stopped looking for vehicles coming down the road? A. When I was halfway around. Q. So right up until the point in which you were halfway round that turn you saw no other vehicles? A. I saw no other vehicles. Q. You agree, don't you, that as you were in that first half of the turn you still would have had an opportunity to see any vehicles beyond the stationary vehicles, wouldn't you? A. Yes. Q. Yet you didn't see any? A. No, I didn't. Q. You say that you were halfway through the turn when you started to look somewhere else and I assume what you say is you start to look down the road you were into, is that right? A. Yes. Q. It was only moments, literally moments, after you stopped looking down the hill that impact happened, correct? A. Yes. Q. So just in terms of timing, you've proceeded into the middle of the intersection, then the lights turn orange and then red, correct? A. Yes. Q. There was then a period of time, I take it, where in fact you saw these vehicles approaching, correct, the other way? A. Yes. Q. You saw that they stopped, correct? A. Yes. Q. I take it they stopped as the lights changed, correct? A. Yes. Q. There was then a period of time, I take it, after it turned red where you say you were perhaps satisfying yourself that these vehicles weren't going to come through, correct? A. Yes. Q. Then you started to turn, correct? A. Yes. Q. So would it be fair to say that on your evidence before you even started to turn the lights had been red for some time? A. No. Q. Well they'd been read for sufficient time for the other vehicles to stop, correct? A. Yes. Q. For you to be satisfied they'd stopped, correct? A. Yes. Q. Then for you to start to commence your turn, correct? A. Yes. Q. So I suggest to you that the lights would have been red for at least a number of seconds before you started to turn? A. Yeah." (T 84-86) 14The plaintiff agreed (T 88) that when she actually entered the intersection, she had no idea when the lights could turn red or how long the lights had been green (T 87-88). She knew that she had to give way to cars travelling in the opposite direction, but had no idea how long she would have to wait when she entered the intersection (T 88). By the time the lights turned to red she was in a position where she was already in the middle of the intersection, which meant she could be obstructing any traffic that would have a green light coming along Canley Vale Road (T 89). That meant she had no choice but to proceed through what was, by that stage, a red signal according to her evidence (T 89 line 15). 15It was put to her that she had failed to observe the car directly ahead of her at the intersection, namely the car driven by Mr Tran. The plaintiff was insistent that there was no car in front of her (T 31). It was put to her that she directly followed Mr Tran's car through the intersection without stopping, and turned right behind him, but she denied this (T 89). It was also put to her that there were no cars stationary at the red light (T 90) and that, as she turned, there were other cars, including the car which struck her, coming in the opposite direction (T 90 lines 18-21). The plaintiff said that this was not the case. 16In re-examination, the plaintiff confirmed that she had proceeded on the red light, not the orange light and confirmed her account of the accident to the police. That account is as follows: "I was waiting in the middle of the intersection, waiting to turn right onto Canley Vale Road. And then there was a lot of traffic, then the lights changed and three cars stopped in front of me. Then I turned right because they stopped and I couldn't see anything else." (Exhibit E, p. 1) 17The plaintiff was asked by the police officer: "Q. Did you see any other cars travelling on the Cumberland [Road] in the other direction?A. Yes there was. There were a few gaps but I couldn't get through. That's why I waited.Q. What were the lights when you turned?A. Just the one red light, there was no arrow or anything. Q. When did you first see the car that you had the [accident] with?A. Just when we hit each other.Q. Did you have your lights on?A. Yeah." (Exhibit E) 18This statement was given on Sunday 9 August 2009, approximately two months after the accident in question. 19In practical terms, the plaintiff's version of her reason for turning right is that the lights had changed and that, as she was stationary in front of oncoming traffic with the green light along Canley Vale Road, it was necessary to complete her turn. She denied seeing the independent witness called by the defendant, Mr Tran. In order to determine the significance of this apparent omission, it is necessary to consider the evidence of the first defendant, Mr Antonios.

The first defendant's evidence 20On the night in question, the first defendant was driving a vehicle belonging to his father (the second defendant). Like the plaintiff, he failed to notice Mr Tran's vehicle making a right hand turn within seconds of the plaintiff's vehicle. The first defendant described the accident as follows: "Q. Can you recall which lane you were driving in as you approached the intersection at Canley Vale Road? A. Yep, I was in the you would say I know across from the front of the lights there's four lanes, but one, the last lane is the right lane that turns right, I was in the one next to that which is the third lane over so if you would say C, if it was Q. So to put it another way, the lane closest towards the middle of the road that wasn't a right turn lane? A. That's correct, yeah. Q. Can you recall as you approached the intersection, firstly, what colour were the lights? A. Green. Q. For the period of time during which you approached this intersection, did the lights change at all? A. No, it was green. Q. So you proceeded down in that particular lane, approaching Canley Vale Road, is that right? A. That's right. Q. Do you recall whether there was any other traffic around you, travelling in the same direction? A. There was no other traffic, it was late at night, I remember seeing cars on the other sides of the road, but I was actually the only car on that side of the road. Q. As you approached the intersection, firstly can you give her Honour, or do you know what sort of speed you were travelling at? A. It was about between 60 and 65. Q. Can you tell us what happened, as you approached the intersection did you see any traffic on the other side of the intersection, do you recall? A. As in, in front of me, cars in front? Q. Yes? A. There was no cars in front of me, no. Q. Can you then tell her Honour what happened as you approached the intersection and entered the intersection? A. As I entered the intersection, or had just before, I realised there was a car on my right but as I was approaching, the car came to turn and stopped. Q. Where did the car stop? A. In my lane. Q. What, if anything, did you then do? A. Immediately tried to brake and turn away. Q. Yes? A. But it was obviously too late. Q. What happened? A. They collided at the front of her vehicle. Q. What part of your vehicle collided with the other vehicle? A. My whole left and front. Q. You collided with what part of the other vehicle you can recall? A. I just remember it was it was pretty front on, it was more the if you're looking at the vehicle, her vehicle, you're looking at it it's the right side. Q. What happened after the impact between the two vehicles? A. Well I had tried to swerve away, it wasn't successful and we had collided. Her car obviously got pushed back and I came off to the side of the road where the footpath is, after the lights. Q. At the time that you proceeded through the intersection what colour was the light? A. Green." (T 130-132) 21Although there was no other traffic on the road, according to the first defendant, he did not observe the plaintiff's vehicle until he entered the intersection or "just before". He said that he was proceeding through the intersection because he had the right of way by reason of the green light. However, his evidence in relation to the distance at which he saw the plaintiff's vehicle changed in cross-examination to being "from a distance". In addition, not only did he state that she had pulled out in front of him, but he stated that she had "turned and stopped": "Q. So you remember driving along and seeing the car that ultimately was involved in the collision there waiting to make a righthand turn do you? A. I wouldn't say waiting. As I was approaching the intersection the car had turned and stopped. So as I had took notice of the car it was stopped in the middle of the intersection. Q. But you said a few minutes ago you realised there was a car on your right, that's the first thing that you saw? A. That's right, from a distance. Q. So on your right would be on that car's correct side of the roadway would it? A. Sorry, can you ask that again? Q. You were travelling on one direction on the Cumberland Highway, that's right isn't it? A. Yeah. Q. It's pretty safe to assume, isn't it, that the car that was involved in the collision with you was going in the opposite direction originally on the Cumberland Highway? A. That's correct sir. Q. You didn't see that did you, you didn't see it travelling along on the Cumberland Highway, or did you? A. All I remember is that as I was approaching I took notice of a car which from a distance didn't realise or didn't you wouldn't think a car would pull out in front of you so so she turned and stopped." (T 132) 22The defendant then claimed that he had attempted to slow down at the lights, adding that "Why would I speed?": "Q. So the first time you saw that car was it stopped on its side of the road in that righthand turn lane on the Cumberland Highway? A. I had seen the car stopped the first time I had seen it. Q. With its blinker on? A. Yes. Q. Intending, pretty obviously, to make a righthand turn? A. Correct. Q. Correct? A. Yes. Q. When you saw it there did you slacken your speed at all or did you just keep going? A. Of course. You tend to as you approach any lights you slow down. Q. Well the speed limit in this area's 70 kilometres per hour isn't it? A. That's correct. Q. You're driving a high powered car, a six litre V8 Holden aren't you? A. That's correct, yeah. Q. It's late at night, that's right isn't it? A. Of course Q. According to you no traffic around except for this car, is that right? A. Yeah. Q. Why would you be doing 60 or 65 along that road rather than the speed limit? A. Why would I speed? I'm not in a hurry to get home. Q. Well Mr Antonios the answer "Why would I speed" you know why you would speed; because you enjoy doing it? A. No I don't. Q. In any event you see the car there and you slow down do you? A. I had seen the car and I slowed down towards the intersection, yep. Q. Then what did you see the car do? A. Pull out in front of me and stopped. Q. Across your lane? A. That's correct. Q. Then you tell us that you took evasive action by braking and swerving? A. That's correct. Q. But you were unable to avoid a collision? A. That's right." (T 133-134) 23The first defendant's statement "why would I speed?" lead to cross-examination about his driving record. I allowed the tender of the first defendant's driving record and indicated that I would give reasons for doing so in my judgment.

The first defendant's driving record 24The first defendant objected to any cross-examination of the first defendant on his driving record. The first defendant in cross-examination said he considered he was a safe driver who did not speed on the night in question because "why would one speed" (T 134). He also disputed the reason for his current licence being provisional. 25The basis of the first defendant's objection were: (1)This evidence is tendency evidence (s 97 Evidence Act 1995 (NSW)) and no notice had been given; and (2)Relevance. 26The parties could not take me to any decisions dealing with such a submission. In Cartwright v Bluescope Steel Ltd (2013) 64 MVR 270 at [26]-[28], Simpson J noted: "[26] I'm satisfied that the plaintiff was not, on this occasion, driving differently from the manner in which he had regularly driven that route. The speed had been safe in the past; it was safe on this occasion, had there not been a variation in the load. [27] Having regard to the speed limit, and that there are no advisory or limiting signs in respect of heavy vehicles, I cannot say that a speed of 60.4kph (or even 61kph) was, in the circumstances appertaining to the road conditions, excessive. The evidence is that it was daylight, the weather was good, and the traffic light. Mr Currie did not observe anything untoward about the manner of the plaintiff's driving. [28] Curiously, the plaintiff's driving record was put in evidence in his own first witness statement. It is not good. He has a long history of offences of exceeding the speed limit. However, no attempt was made to rely on his record as tendency evidence (see s 97 of the Evidence Act 1995) and I do not propose to use it in that way. Indeed, in final oral argument, senior counsel for Bluescope disclaimed reliance on tendency evidence." 27In Thornton v Sweeney (2011) 59 MVR 155 the New South Wales Court of Appeal noted a similar submission was not developed (at [8]). 28The situation here is similar. The first defendant's driving record is not good. This evidence is relevant not only to his credit but as tendency evidence. No notice was given. 29Conformably with s 100 Evidence Act 1995 (NSW), I propose to admit the evidence, which is probative for the reasons noted by Simpson J. In doing so I have taken into account the checklist in s 100(4) Evidence Act 1995 (NSW) and s 56 Civil Procedure Act 2005 (NSW). 30Alternatively, I would dispense under s 190 Evidence Act 1995 (NSW) with compliance with s 97, having regard to the checklist at s 190(4). 31The relevance of such evidence is clear from the remarks of Simpson J at [26]-[28], and I reject the objection made in reliance upon s 55. 32Mr Lidden SC did not in fact rely upon the first defendant's driving record as tendency evidence. It was tendered essentially in relation to an issue of credit, in much the same way as appears to have occurred in Cartwright v Bluescope Steel Ltd, supra, at [26]-[28]. 33The first defendant's driving record is, however, relevant to his credit. It is not to the first defendant's credit that he sought to put himself forward as a safe driver (T 138 lines 1-11) when in fact at the time he was on a newly issued provisional licence because of loss of points, which licence had been issued 10 days prior to the accident in question. Not only did he state in his evidence that he considered he was a safe driver (T 138 line 3) but he disputed the circumstances in which his licence was suspended until shown his driving record (T 138 line 26-32). 34The first defendant agreed that the vehicle he was driving, which was purchased in his father's name because of the first defendant's uncertainty as to whether he would be able to drive such vehicle with his driving record (T 139), was "capable of very high speed" (T 139-140).

Conclusions concerning the account of the accident given by the first defendant 35The first defendant agreed he told the police that the plaintiff had "just popped out of nowhere and hit me". He was asked: "Q. Well that wouldn't be right would it because she didn't pop out of nowhere, you had seen her there with her indicator on intending obviously to make a righthand turn, that's not popping out of nowhere is it? A. My definition of "popping out of nowhere" is assuming a car's in your right lane, seeing a car approaching, you don't exactly turn in front of a car suddenly. Q. But you see that's not popping out of nowhere, that's popping out of somewhere where you've seen the car isn't it? A. Popping out would describe what I what I call a last minute Q. But I'm interested in the "nowhere" you see? A. Yeah that's my choice." (T 135-136) 36The first defendant went on to explain: "A. Well I've I do recall I would say something like "pop out of nowhere" yeah, because that's how you would describe something that was very sudden and, you know, like last minute, do you know what I mean. I wasn't exactly a planned turn, it was something that was very last minute; she saw the car approaching and in my eyes she broke and stood there so it was too late. Q. Well I'm going to read out a question and an answer to you Mr Antonios. The question is, "Did you see the car turn in front of you?" and your answer was "I know she was turning right, she just popped out of nowhere and hit me and my car spun around". Just assume from me that's in the notebook, you'll see that you left out anything about the car stopping in front of you, not a word about that was there? A. I haven't read the statement." (T 136) 37The first defendant acknowledged he had not said anything to the police about braking but denied that he had "whizzed" through a red light. He denied that he had any concerns about loss of his provisional licence if the accident were regarded as his fault (T 137). (I note in this regard that the plaintiff, who was also on a provisional licence, would have lost her licence for the same reason, and that this is not a motive which can be ascribed to the first defendant alone.) 38The first defendant's version of events in his evidence is internally inconsistent, and differs from his statement to the police. His claim that the plaintiff "just popped out of nowhere" is implausible, given the degree of visibility for oncoming traffic which he admits he had. On the first defendant's version, the plaintiff's vehicle remained stationary at the lights and then suddenly turned in front of his vehicle in circumstances where he either saw her stationary at the lights from some distance, or alternatively only first noticed her as he entered the intersection. 39This brings me to the evidence of Mr Tran.

The evidence of Mr Tran 40Mr Tran described the accident as follows: "Q. As you approached that intersection which way did you intend to turn? A. INTERPRETER: I intended to turn right from the Cumberland Highway into Canley Vale Road. Q. What are the lanes at Cumberland Highway in the area where you were turning? A. INTERPRETER: There was a righthand lane to turn into Canley Vale Road. Q. The intersection is controlled by traffic lights, is that right? A. INTERPRETER: Yeah, there was red lights on that day. Q. As you approached the intersection what colour were the lights for the way you were going? A. INTERPRETER: Green. Q. Was it a green circle, was it a green arrow, was it both, which one? A. INTERPRETER: A green circle. Q. As you approached the intersection and went into the right turn lane did you notice whether there were any cars behind you? A. INTERPRETER: Yes, there was a car behind me. Q. Do you know what sort of car it was? A. INTERPRETER: It was dark, it was night time, I just saw the headlights that's all. ... Q. You went into the right turn lane, what if anything did you see of other traffic? A. INTERPRETER: It was very little traffic at the time. Q. Was there any traffic coming the other way? A. INTERPRETER: There was a car. Q. What did you do? A. INTERPRETER: I saw it was a long way off and it was safe enough so I turned. ... Q. At the point that you commenced your turn where was this car that you had seen behind you? A. INTERPRETER: When I was turning I was more worried about turning so I didn't look in the rear vision. Q. Can you tell us what then happened as you commenced to turn? A. INTERPRETER: As I started to turn, make the turn into the Canley Vale Road I heard a very loud bang. Q. What, if anything, did you do when you heard the bang? A. INTERPRETER: I saw as I turned over my right hand shoulder, I saw the car that had been behind me had been hit and I stopped." (T 102-103) 41Mr Tran was cross-examined at some length about issues which are of little significance to the case. This included a claim that he had embellished his evidence, with a reference to there being flames coming from the vehicle (words were that there was "a lot of smoke but only a little flame" (T 113, line 19)), which was described as a "pretty dramatic phrase" which he had left out of his statement. In fact as Mr Tran's statement makes clear, he "thought the car was going to blow up so I pulled the girl from the car and put her on the footpath" (Exhibit F, paragraph 6). 42Mr Lidden SC said: "Q. You're trying to portray yourself as a bit of a hero for getting her out of a burning car, aren't you? A. INTERPRETER: Any person wouldn't leave someone in a burning car." (T 114) 43Mr Lidden SC sought to cross-examine Mr Tran about whether, from the state of the photographs of the plaintiff's vehicle, there would have been a fire. I did not permit this cross-examination and indicated that I would give reasons for refusing to do so in my judgment (T 117). 44In Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 and Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956 the Court of Appeal warned trial judges about interpreting matters requiring expertise from photographs. To be requiring a witness to postulate whether, from the state of a photograph, there had been a fire in a car engine is, in my view, evidence calling for the expression of an expert opinion. 45 I am satisfied that the description given by Mr Tran to police, namely that he feared the car was about to blow up, was an accurate description of the circumstances in which he had, together with another passer-by, and in circumstances of considerable risk, dragged the plaintiff from her vehicle. He said he was afraid that the car was going to catch fire (T 118) and I am satisfied that it was because he saw smoke and fear, or saw flame, that he took this step. 46In the course of giving this evidence, both Mr Tran and the interpreter appeared to be distressed. As I note at T 119, Mr Tran had his head in his hands several times and he appeared to be smiling. Mr Lidden SC submitted that this was misbehaviour on the part of the interpreter. 47In Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186, the Court of Appeal warned about the danger of misinterpreting the cultural responses of witnesses as being evidence of inappropriate demeanour. Conformably with the reasoning of the Court of Appeal in Goodrich Aerospace Pty Ltd v Arsic, supra, I do not regard the fact that both Mr Tran and the interpreter responded in this fashion as evidence of misbehaviour, lying or other wrongdoing. Nor do I consider it is necessary to enquire if the interpret comes from "the same culture as the witness" as requested by Mr Lidden SC (T 120, line 22). 48The real issue for determination is not the credibility of Mr Tran, who I find was a honest and straightforward witness doing his best to assist the court, but what to make of the failure to mention the green light in his statement to the police in circumstances where he now says in his oral evidence that the light was green in favour of the first defendant. His description of the accident in his police statement of 19 June 2009 was as follows: "5. I slowed down as I wanted to make a right hand turn onto Canley Vale Road. I saw that the traffic light facing me was showing a green light but there was no green arrow. I slowed and came to a complete stop at the intersection of the Cumberland Highway and Canley Vale Road. I could see that the yellow Excel was following me and was also in the turning lane directly behind me to turn right. 6. I could see another car's headlights on the other side of the road on the Cumberland Highway heading the opposite way. I had enough time to turn so I completed my right hand turn. When I finished my turn I heard a big bang. I looked into my rear view mirror and saw that the yellow Excel was spinning out of control. I pulled over and ran over to the Excel which was on the medium strip of the Cumberland Highway. I saw a female sitting in the drivers seat. She opened the door and I could hear her screaming "My leg hurts." I could see smoke coming from the engine and I could smell it. I thought the car was going to blow up so I pulled the girl from the car and put her on the footpath." (Exhibit F) 49Exhibit G is a letter from the Roads and Traffic Authority giving the phasing detail for the lights in question. It is clear that there are four seconds of amber signal, followed by a red signal. 50Although Mr Tran in his statement describes the plaintiff's vehicle as a yellow Excel directly following him and in the turning lane directly behind him, he said in his evidence that at the time he could only see her lights. 51Returning to the description of the accident by the plaintiff and first defendant, both described her vehicle remaining stationary at the intersection, suggesting that, rather than simply following Mr Tran's vehicle and turning right, she independently stopped for several seconds, during which time Mr Tran's car completed his turn. This would also explain why neither the plaintiff nor the first defendant saw the plaintiff's vehicle; if Mr Tran's vehicle had already completed its turn before the plaintiff commenced her turn, the fact that there had been another vehicle making a right hand turn would have been forgotten by both the plaintiff and the first defendant. 52Mr Tran was an honest witness who was doing his best to assist the court. However, it is clear from his evidence that, while he remembers those parts of the events which are of most relevance to him, such as hearing the bang and helping the plaintiff to get out of her vehicle, his recollection of other events at about that time is poor. He remembers speaking to a police officer at the scene of the accident and that the police officer took notes which he signed. However had completely forgotten going to the police station to make a statement which was typed up (T 107-110). He had not seen his police statement since. The police officer's notes for the accident neither do not exist or have not been tendered, but whether or not Mr Tran was interviewed, clearly he spent some time at the police station preparing his witness statement, and these are events that he had subsequently forgotten. The absence of a reference to the light being green in favour of the first defendant is, in my view, compelling evidence. 53In the course of oral submissions, Mr Lidden SC submitted that it was open to the defendants to have tendered any statement made by Mr Tran to the investigator or to the solicitors for the defendants to establish that the evidence of seeing the green light was not a reconstruction. As Mr Fitzsimmons points out in his submissions of 11 March 2014, these submissions by the plaintiff were misconceived. Firstly, the rule in Jones v Dunkel (1959) 101 CLR 298 does not permit such an interference to be drawn as the rule cannot be employed to fill in gaps in evidence: Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 347 at [232]-[234] per Heydon J; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136 at [50] per Heerey J. In addition, a party should not be called upon to waive legal professional privilege in such circumstances.

Conclusions concerning the circumstances of the accident 54When a dramatic event such as a motor vehicle accident occurs, the most honest of witnesses can be in error about issues such as a few seconds of timing. On the balance of probabilities, I am satisfied that the plaintiff did not follow in the wake of Mr Tran's car, but that she stopped before turning right, and that, in the course of so doing, the lights changed from green to amber to red. She then had to make her turn because she was stationary in front of oncoming traffic. The omission from Mr Tran's police statement of a reference to the light being green and being seen by him to be green after he heard the bang is in my view significant. I accept the plaintiff only turned right after the lights changed, and that the first defendant sped through the red light having either failed to observe the plaintiff at all, or assuming she would remain stationary. 55Accordingly, the plaintiff has established liability.

Contributory negligence 56A claim for contributory negligence was pleaded as follows: (a)Failing to keep a proper lookout. (b)Failing to take any or any adequate precautions for her own safety. (c)Failing to give way to the first defendant. (d)Making a right hand turn across the first defendant's path. (e)Failing to steer, control and manoeuvre her motor vehicle so as to avoid a collision. (f)Failure to apply her brakes in time, or at all, so as to avoid the collision. (g)Failing to make her presence known to the first defendant. (h)Failing to give way to oncoming traffic. 57I was not addressed on this topic at all by either counsel. No mention was made of contributory negligence by either counsel at any stage during the trial, including during the opening as well as during the closing submissions. In those circumstances, I propose to treat the claim for contributory negligence as having been abandoned. Any finding of contributory negligence would in any event be inconsistent with my findings on liability. 58This brings me to the issue of quantum.

Quantum 59The plaintiff has not achieved the threshold for non-economic loss. Accordingly, the relevant heads of damage are: (1)Past and future out of pocket expenses; (2)Past and future economic loss; and (3)A claim for future home care. 60The issue of quantum has been clouded by the fact that the plaintiff suffered an additional accident on 20 August 2010 when she was thrown forward after a bus stopped suddenly. Her principal injuries on that occasion were to her right knee and to her nose. There is the possibility of arthritic change to her knee, but there is no evidence that arthritic change is likely to occur to her right lower leg in relation to the injury in the accident the subject of these proceedings. 61The plaintiff brought proceedings in relation to the subsequent injury to her right knee, and I take into account that there has been a settlement in relation to that claim, the terms of which are not before me. However, as is set out in the doctors' reports below, it is clear that the injury the subject of these proceedings is the principal injury. 62I have had the benefit of reading the reports of the treating doctor, Dr Jayker Davé. Dr Davé's reports carry considerable weight not simply because he was the treating doctor but also because, unlike the other experts who provided medicolegal reports for the plaintiff, he saw the plaintiff prior to her second accident.

Dr Jayker Davé 63Dr Davé in his report of 16 March 2011 stated: "Ms McLennan has seen me in the rooms on the 07/07/2009 and the 07/08/2009, 18/09/2009 and finally on the 23/11/2010, when her fracture has been documented to have healed. Last x-ray report dated the 11/09/2009 shows excellent alignment and bone union, not yet complete. At that stage Kirsty had done well and had returned back to work as a gym instructor, but unfortunately had a bus accident on the 20/08/2010, when the bus she was travelling in stopped suddenly and flung her forwards onto the windscreen. She hit her knee onto the driver's console." 64Dr Davé describes the injuries from the "two distinct accidents" as being: "The injuries are as noted above, with two distinct accidents being recorded. The first accident caused the fracture of her tibia along with the other soft tissue injuries as noted, whilst the second injury has caused the injury to the patellofemoral joint." 65Dr Davé notes in his second report (31 August 2011) that the plaintiff had "returned back to all activities" as a gymnastic teacher, including running, jumping and flipping (p. 2). 66Dr Davé paints a picture of the plaintiff as having returned to all her activities as a gymnastic teacher and as having made a successful recovery from her injuries. 67Mr Lidden SC submitted that I should pay scant regard to these findings, as they are the findings of a doctor who is concerned only with the treatment of the plaintiff. I find this submission difficult to accept. To have recorded that she has returned back to all her activities as a gymnastic teacher, and not express any concern about her doing so, in circumstances where she had not in fact recovered, would be dangerous to the health of the plaintiff. 68Dr Davé's reports are those of a surgeon who is taking into account not only the plaintiff's injuries and disabilities, but also her ability to return to her former employment. Rather than viewing his reports as overconfident or overenthusiastic, I see them as the careful and considered opinions of the expert with the closest knowledge of the plaintiff's state of health.

Dr James Bodel 69Dr Bodel saw the plaintiff after the second accident on 15 November 2011 for medico-legal purposes. He states: "Progress x-rays show that the fracture was slow to heal. She was given further time and remained on the crutches for about three to four months and then on a walking stick for another four or five months. She was off work from all activities until December 2009 when she was able to return on a modified fashion. She could not demonstrate gymnastic activities and worked with smaller group. She also had to reduce her hours. All other areas settled and the only ongoing complaint was in the region of the fracture of the right tibia and fibula. She was unable to continue work with the elite squad of the girl gymnasts whom she had been working with." (Report of 15 November 2011, p. 2) 70His conclusions are: "In response to your specific questions I would indicate the following: 1. The nature and extent of the injuries sustained by our client. This lady suffered a serious injury in the first accident on 18 June 2009 where she suffered a fracture of the right tibia and fibula. She suffered a more minor accident on 20 August 2010 where she suffered a closed head injury, contusion to the chest wall and an injury to the left elbow. Ongoing disability mainly relates to the fracture of the tibia. 2. The nature and extent of the continuing disabilities from which our client is suffering. This lady's continuing disabilities are pain and stiffness and swelling in the region of the right leg. This is principally at the fracture site and in the region of the right ankle. 3. Our client's capacity and fitness for work in general, particularly as to the effects of the injury. This lady has returned to her pre-injury involvement in work as a gymnastics instructor. She is struggling however as she cannot demonstrate all of the apparatus as she used to. She does not have the same skill set that she had prior to the injury. 4. The need for past and future domestic assistance. This lady does require some domestic assistance for household maintenance and cleaning activities although I note that she indicates that she is managing. As a result of the ongoing pathology in the region of the right leg I would recommend two hours domestic assistance per week on a commercial basis as a result of the effects of that ongoing disability in the right leg." (Report of 15 November 2011, p 5) 71In a further report of 22 February 2013, Dr Bodel states: "3. Our client's capacity and fitness for work in general, particularly as to the effects of the injury. This lady has returned to work to her pre-injury style of work although in a reduced capacity and decreased hours. In the longer term she will need to retrain in alternative duties which are predominantly of a sedentary type. She should be able to upgrade to full time hours of work in appropriately modified duties. 4. The need for past and future domestic assistance. This lady does require domestic assistance for household maintenance and cleaning activities. At the time of the original injury on 18 June 2009 she did require eight hours' domestic assistance per week for a period of about eight months and then four hours' domestic assistance a week for another eight months and then two hours' domestic assistance a week ongoing after that. She required a slight increase in her domestic assistance needs after the accident on 20 August 2010 for about four months and then back to the base level of required domestic assistance after that. 5. Your prognosis. This lady's prognosis from the point of view of the fracture of the tibia is quite good." 72As Dr Bodel's reports show, his reports conflate the first and second accidents, and he does not specifically allocate the plaintiff's injuries and disabilities to one accident or the other. He does, however, note that her prognosis from the point of view of the fracture of the tibia is "quite good". By reason of Dr Bodel's failure to differentiate between the two accidents, his reports are of limited assistance.

Dr Peter Conrad 73Dr Conrad's report of 14 December 2011 notes the plaintiff's history as follows: "She was in hospital for a few days and then was discharged on crutches. She was followed up by Dr Dave. She had physiotherapy, but no further surgery. At the time of the accident she was working as a gum instructress, doing about twenty-five hours per week. She was off work until September when she returned to light part-time work. She got back to her full duties and then had a second accident on 20th August 2010 when she was a passenger in a bus when the bus stopped suddenly and she was fluing forwards onto the windscreen. She hit her right knee on the driver's console." 74Dr Conrad's report of 14 December 2011 went on to say: "OPINION: This lady was involved in two motor vehicle accidents, as previously described. As a result of the accident of the 18th June 2009, she sustained principally a fracture of the midshaft tibia and fibula, which were fixed with an intramedullary nail and screws and has united satisfactorily. This was aggravated by the accident of the 20th August 2010 in which her principal injury was to her right knee and an injury to her nose, which has settled. She has ongoing pain in her right lower leg and right knee and she needs conservative treatment. She may need physiotherapy from time-to-time. She is well motivated and continues to work as a gym instructress, doing about fifteen hours per week and is able to do this providing she does not do an excessive amount of work involving jumping on her right leg or an excessive amount of running. This should all be part of a structured rehabilitation program. There is a possibility that she may need removal of either the intramedullary nail and/or associated screws at a present day cost of some $5,000.00 to $6,000.00 and she would be off work for four weeks. In the meantime she may need physiotherapy from time-to-time. Her prognosis is guarded." 75Dr Conrad's report of 21 August 2013 adds: "Ms McLennan continues to be well motivated and continues to work as a gym instructress, doing some six hours per week and she is able to do this, providing she does not do an excessive amount of work involving jumping on her right leg or an excessive amount of running, squatting or lifting heavy weights. She may be able to do this work up until about 12 hours per week. Alternatively, she would be able to do light work, up to 20 to 25 hours per week, such as light retail work or cleaning work or similar work, where she does not do an excessive amount of standing, walking, squatting or kneeling. This should be part of a structured rehabilitation program. There is a possibility that she may need removal of her hardware, either the intramedullary nail and/or the associated screws at a present day cost of some $6,000.00 and she would be off work for about four weeks. She may need physiotherapy from time-to-time. I have seen a report by Dr Clark, a Psychiatrist, assessing this aspect of her injury. Her prognosis is guarded." 76Dr Conrad's reports similarly comment on the plaintiff's medical condition in relation to both accidents. His reports, likely Dr Bodel's reports, should be viewed with caution in this regard.

Dr David Maxwell 77The plaintiff was also seen by Dr Maxwell on behalf of the defendants. 78Dr Maxwell's report of 30 August 2012 stated: "She came under the care of orthopaedic surgeon, Dr Jay Dave. The next morning she had an operation. She had an intramedullary nail inserted into her right tibia with cross screws inserted to prevent rotation. She was in hospital for 4 days. She went home with crepe bandages on her leg using crutches. When she got home she lay on the couch. Because she said she was unsteady on her feet her dad took away her crutches after she had nearly slipped over. She then started to "hop around". After one month her father gave her crutches back. She was followed up by Dr Davé who told her not to weight bear for 3 months. She then gradually started to weight bear. She changed to one crutch and then a cane. After 6 months she walked without support and returned to work. She said she has recovered quite well. Her right leg had become weak from inactivity. She had to rehabilitate her right leg." 79Dr Maxwell further stated: "She had a series of x-rays of her right tibia commencing on the 30/06/2009. It was noted that she had an intramedullary nail with cross screws. The alignment was excellent. There was a small butterfly fragment anteriorly. Sequential x-rays showed gradual healing of the fracture. It had united by the 10/2/2010. The last x-ray taken on the 30/3/2011 showed the fracture had completely healed. There was some excessive callus formation causing some swelling at the fracture site. There were 2 proximal pins and distal screws. The overall alignment was anatomical." 80Dr Maxwell gave the following diagnosis and opinion: "DIAGNOSIS AND OPINION: Kirsty McLennan was involved in 2 motor vehicle accidents. The 1st motor vehicle accident was more serious when she turned right at an intersection. At the time she admitted the light had changed to red. She was hit by a car that she claims was coming through the red light. She sustained a fractured tibia and this has healed in excellent position. She still has the intramedullary nail insitue. The 2nd less severe accident occurred on the 20/8/2010. The bus stopped suddenly and she was thrown into the windscreen causing a contusion to her forehead and some soft tissue bruising. The effects of this injury settled rapidly. Her minor continuing disability is due to the 1st motor vehicle accident. I will answer your specific questions; 1. History - I have outlined the history in the body of the report. There were 2 motor vehicle accidents. The 1st was more severe. 2. Details of any prior or subsequent injuries or other condition affecting the claimant - The only other operation she has had was an operation on her jaw. 3. Diagnosis - She had had a fractured right tibia which is now united. She has very minimal residual disability with some discomfort after physical activity. There is no disability in relation to the motor vehicle accident of the 20/8/2010. 4. Is the treatment to date reasonable and necessary - I consider the treatment for the 1st motor vehicle accident was reasonable and necessary. There was no specific treatment required for the 2nd motor vehicle accident of the 20/8/2010. 5. Fitness to undertake pre-injury duties - I consider she is fit to undertake pre-injury work duties as a gymnastic instructor. She would also be fit for administrative work or any other form of work. She was restricted from carrying out her usual work following the 1st motor vehicle accident but only missed 3-4 days off after the 2nd motor vehicle accident. 6. Fitness for domestic duties - She is quite fit to undertake domestic duties without restrictions. 7. Prognosis - I consider her condition has stabilised. 8. Does the claimant require further surgery - She may require further surgery to remove the intramedullary nail if she continues to experience minimal symptoms. This would be related to the accident of the 18/6/2009. 9. Is the claimant fit to return to work as a gym instructor following the accident on the 20/8/2010? - Yes. The claimant was fit to return to work as a gym instructor following the 20/8/2010 motor vehicle accident. 10. Would the claimant have been fit to return to work as a gym instructor following the 18/6/2009 accident? - Yes. The claimant had been fit to return to work as a gym instructor following the 18/6/2009 motor vehicle accident." 81Dr Maxwell's updating report of 26 November 2013 states: "Ms McLennan does not experience as much swelling at the fracture site but occasionally it is a little tender and aches. She sometimes experiences an unusual symptom of her leg going completely numb from the knee down. She has to allow five to 10 minutes for the numbness to improve. This numbness comes on intermittently. She states she was in the surf and she developed numbness, was hit by a wave and was thrown into a rock. She went back to Dr Tablante who took another x-ray of her right knee on 18 February 2013. She states that her right knee hurts if she walks up hills. She states she still favours her right knee when demonstrating gymnastic manoeuvres. She still however uses the beam and does tumbling. She states she lands mainly on her left leg. Currently she does not have any effects from the head injury. She feels that she has recovered from the soft tissue injury to her left forehead. She has no symptoms in relation to her chest or ribs. She has no symptoms in relation to the soft tissue bruising to the right hip. She has no symptoms in her knees. She has no symptoms in relation to her right and left elbow. She does not have any symptoms in relation to an alleged injury to the left leg. She has no symptoms in relation to an injury to her nose. She said that all the bruising and abrasions have completely healed without scarring and when I mentioned it was stated she had gross shock, she shrugged her shoulders and said she does not feel any currently symptoms of shock. She stated however occasionally she gets anxious about being in a bus and occasionally gets nightmares about having bus or car accidents but these have improved significantly." 82Dr Maxwell went on to state: "On examination, there was no shortening of her right leg. She demonstrated a pain-free range of movement of her right knee and right ankle. There is slight swelling in the mid-shaft of the tibia at the site of the fracture but this is not particularly tender. This was due to the callus formation. There is a 4cm vertical scar over the right knee which is very difficult to perceive, and three more scars on the lateral aspect of her right lower leg at the site of insertion of the cross screws, these were also difficult to perceive. The ligaments of the right knee were stable. Her right thigh measured 47cm and left 47.5cm. Her right calf measured 37cm and left 36cm. She looked generally fitter and appears to have lost weight since my last examination. She now weights 70 kilograms. DIAGNOSIS AND OPINION Ms McLennan continues to recover. She has become more physically active and has lost weight. There is no significant muscle wasting in her right thigh indicating good function, and no loss of motion of her right knee or right ankle. She has no complaints in relation to the other alleged soft tissue injuries as a result of the bus accident. She has done a course to become a personal trainer and attends an outdoor gymnasium on an almost daily basis." 83Dr Maxwell further stated: "a. The history she gives, both in relation to her prior general physical condition, her onset of symptoms and the extent to which she relates his [sic] onset of symptoms to the injuries he [sic] alleges. I have outlined the history in relation to her prior general physical condition, and the onset of her symptoms, and I have noted the extent to which she relates the onset of symptoms to the injuries she alleges. It should be noted that she has no symptoms in relation to the bus accident. Her residual minimal symptoms in relation to her right lower leg are due to the initial motor vehicle accident which occurred on 18 June 2009. b. Her current medical condition and your opinion as to diagnosis. She has some vague symptoms in relation to a loss of sensation in the right lower leg which comes on intermittently. It is difficult to prescribe a pathological cause for these symptoms. c. Her capacity to work. She is quite capable of working in an unlimited capacity as a gym instructor and as a personal trainer." 84He described her prognosis as "excellent". 85Unlike Dr Bodel and Dr Conrad, Dr Maxwell does separate the two accidents, noting that, in his opinion, the plaintiff has "very minimal residual disability with some discomfort after physical activity" in relation to the first accident and no disability in relation to the second.

Conclusions concerning the medical evidence 86All of the evidence points to the plaintiff as having made a very good recovery from the fracture of her tibia. Her ability to work as a gymnast has continued. 87The highest Dr Bodel puts the plaintiff's problems are that she does not have the same "skills set" that she had prior to her injury, that she suffers pain, stiffness and swelling in the right leg at the fractured site, and that in the long term she will need to retrain in alternative duties. Dr Conrad opines that the plaintiff is able to continue with her present position as long as she does not do an excessive amount of work involving jumping on her right leg or an excessive amount of running. These views are contradicted by Dr Maxwell and by Dr Davé. For these reasons set out above, I have preferred the opinions of Dr Maxwell and Dr Davé.

Plaintiff's schedule of damages 88The plaintiff provided a schedule of damages as follows: (a) Non Economic Loss Nil (b) Past out of pocket $4,002 (c) Future out of pocket $10,000 (d) Past wage loss ($200 per week for 14 weeks) $2,800 (e) Future loss of earning capacity $100,000 (f) Future paid domestic assistance $35,000 Total $151,802

89The plaintiff falls below the threshold and no damages may be awarded for non-economic loss.

Past and future out of pocket expenses 90The past out of pocket expenses of $4,002 are agreed. The future out of pocket expenses relate principally to the cost of removal of the hardware inserted at the fracture site in the plaintiff's leg. At present, Dr Davé has indicated this is not necessary, but it is possible in the future. 91The removal of the pin is seen as a possibility, rather than an inevitability. In those circumstances, and taking into account the fact that the plaintiff is not currently seeking anything other than sporadic assistance with her ongoing concerns about her injuries in this accident, I am of the view that an allowance of $10,000 as a cushion for future out of pocket expenses is excessive. I would award the sum of $5,000.

Past wage loss 92Past wage loss of $200 per week for 14 weeks is claimed totalling $2,800. This figure is agreed by counsel for the defendant to be reasonable.

Future loss of earning capacity 93The task of assessing future economic loss in motor accident cases is governed by s 126 Motor Accidents Compensation Act 1999 (NSW) which provides: "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." 94Section 126 is not a code which covers all aspects of the exercise, but one which involves the application of general law principles of assessment of damages: see Amoud v Al Batat (2009) 54 MVR 167 at [23]-[28] per Basten JA. 95The plaintiff in these proceedings, unlike the plaintiff in Amoud v Al Batat, supra, had no pre-injury, vulnerabilities or limitations. She was a fit and healthy young woman. 96The plaintiff's evidence about her pre-accident income was incorrect: "Q. So, just so I understand it, at the time of the accident you had been working fulltime for a number of years? A. Yes. Q. Working fulltime for a number of years earning 600 a week at the YMCA? A. Yes. Q. So about 1200 a fortnight? A. Yes. Q. The fact was that your hours varied greatly in terms of the hours you were doing for week to week at the YMCA before the accident, didn't they? A. Yes, yes. Q. You say that you had been doing that 600 a week for some years. I want to suggest to you that's certainly not reflected in your tax returns is it? A. No. Q. If I can just ask you to assume that for the year ended 30 June, you understand the financial year, you put in tax returns for each financial year? A. Yes. Q. That for the year ended 30 June 2008 your gross income was 7396. A. Yes. Q. If you were earning 600 gross a week for that full financial year your gross income would be well over 25,000 a year, wouldn't it? A. Yes. Q. Why is it then that your tax returns only showed 7396 as your gross income? HER HONOUR: This is for 2008? FITZSIMMONS: Yes. WITNESS: I may have my numbers wrong with my hours." (T 34-35) 97The plaintiff was further cross-examined regarding the increase in her income subsequent to the accident in 2009: "Q. The position was that by the year ended 30 June 2011 I suggest there had been a significant increase in your income, do you agree with that? A. Yes. Q. Can I simply put these figures to you, and again you may not remember them but I wanted to put them to you, according to your tax returns for the financial year ended 30 June 2008? A. Yep. Q. Your taxable income was 7,396. For the 30 June 2009 it went up to 11,383 although I want you to understand about 4,300 of that was Newstart? A. Yes. Q. Then for 30 June 2010 it was 10,526, do you understand? A. Yes. Q. But that included 2,430 of Newstart. Then what I want you to assume is by 30 June 2011, which was the full financial year just before this injury happened, your taxable income was up to 26,545? A. Yes. Q. Which included the sum of 1,586 of Newstart. So it appeared in terms of your actual income that your income had gone from roughly about $8,000 in terms of your actual income 30 June 2010 and you were up to your actual income excluding Newstart, about $25,000, correct? A. Yes. Q. That was from the work, the combined work that you were doing at the YMCA and also Belgravia, correct? A. Yes." (T 64) 98Counsel for the defendants pointed out that the plaintiff's income had in fact increased since she suffered the accident. I do not place very much weight on this, as that is not uncommon in cases involving young persons on the threshold of an adult earning career. Nevertheless, the onus lies on the plaintiff to prove loss of earning capacity: Kallouf v Middis [2008] NSWCA 61 at [68]-[93]. The court sets out at [89]-[90]: "[89] Section 126, as Giles JA observed in The Nominal Defendant v Lane [2004] NSWCA 405 (at [61]) "'enshrines in legislation the method for asserting an uncertain career path that was adopted in Norris v Blake (No 2)' [as] has been noted by Professor Luntz in Assessment of Damages for Personal Injury and Death, 4th ed (2002) para 1.28 [sic, 11.2.8]". [90] The combined effect of s 126(1) and s 126(3) is to require the Court to identify and state the "assumptions about future earning capacity or other events on which the award [of damages for future economic loss] is to be based", while s 126(1) requires satisfaction that these assumptions "accord with the claimant's most likely future circumstances but for the injury". Section 126(2) requires an adjustment of 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 might have occurred but for the injury"; and s 126(3) requires the Court to state "the relevant percentage by which damages were adjusted": Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145 (at [3]) per Hodgson JA (Stein AJA agreeing); see also Bryson JA (at [52]) (speaking of s 13 of the Civil Liability Act which is in identical terms to s 126)." 99As counsel for the defendants pointed out at T 168, the plaintiff conceded she had returned to full duties and was in fact working longer hours than she had been before the accident. This included working all day and on some nights during special training camps. She has consistently reported to her doctors that she has returned to full gymnastic duties and the hours she was working demonstrate a capacity to perform those tasks she had been able to perform before the accident. 100Taking all of the medical evidence into account, I cannot be satisfied that the plaintiff has suffered any ongoing loss of earning capacity as a result of this accident. Having regard to the principles first enunciated in Graham v Baker (1961) 106 CLR 340, there is no evidence that any such loss of earning capacity would be productive of financial loss. The plaintiff has in fact demonstrated a capacity for hard physical work which indicates her recovery from the injuries suffered. 101The plaintiff's submission that she should be entitled to a cushion, even one of modest proportions, cannot detract from the plaintiff's obligation to establish that loss of capacity is likely to be productive of financial loss. 102I decline to make any award for future loss of earning capacity.

Future paid domestic assistance 103The plaintiff is a fit and healthy young woman whose complaints about housework are of a generalised nature in relation to vacuuming. Counsel for the defendants submits, and I accept, that for the plaintiff to have returned to the type of gymnastic work she has been doing while claiming she is not able effectively to participate in shared domestic chores is implausible (T 170). The evidence of the plaintiff's circumstances to date shows that in each of the domestic situations she has participated in, she has been able to perform domestic tasks herself without the need for assistance. Accordingly, I am satisfied that there is no need for domestic assistance in the future given the degree to which the plaintiff has been able to carry out home duties since the accident. If I have erred in making this finding, I would not be satisfied that such assistance is likely to be sought on a commercial basis at some time in the future on the mere generalised evidence that the plaintiff would pay for such services if she was not able to call upon a spouse or other relative to perform them. 104The circumstances in which a claim for future paid commercial care in Miller v Galderisi [2009] NSWCA 353 was permitted do not extend the principle of future paid domestic care to all cases where a plaintiff who is otherwise in good health and has a history such as the plaintiff states in the witness box that future paid care of some unspecified kind may be necessary in the future. 105The plaintiff's claim for future paid domestic assistance is not made out.

Summary of damages award (a) Non Economic Loss Nil (b) Past out of pocket $4,002 (c) Future out of pocket $5,000 (d) Past wage loss ($200 per week for 14 weeks) $2,800 (e) Future loss of earning capacity Nil (f) Future paid domestic assistance Nil Total $11,802

Conclusion 106I gave judgment for the plaintiff in the sum of $11,802. As this sum falls below the threshold in r 42.35 Uniform Civil Procedure Rules 2005 (NSW) I have reserved the issue of costs.

Orders (1)Judgment for the plaintiff for $11,802. (2)Costs reserved. (3)Liberty to restore in 28 days. (4)Exhibits retained for 28 days.

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: 01 July 2014