I now turn to the question of damages. As set out above, the defendant admitted a breach of duty of care which she owed to the plaintiff. It is therefore necessary to consider the various heads of damages applicable and any residual symptoms or restrictions which the plaintiff has arising from the 26 April 2013 accident.
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 her: s 131 of MACA.
[2]
Past out-of-pocket expenses
It was agreed between the parties that the defendant has paid $5,949.40 for past out-of-pocket expenses and claims a defence under s 83 of MACA for that sum: see Exhibit E.
In the course of submissions, there was a dispute in relation to the plaintiff's claim for the sum of $5,862.25 as being connected to injuries arising from the 26 April 2013 accident. The parties requested that I make relevant factual findings in the case so that the issue can, if possible, be resolved after reasons for decision are handed down. I think that that is an appropriate course to adopt to avoid further cost to the parties.
Accordingly, in relation to the question of past out-of-pocket expenses, the parties should attempt to agree the relevant figure in accordance with these reasons. If an agreement cannot be reached, there will be a need for further submissions.
[3]
Future out-of-pocket expenses
The plaintiff claimed future out-of-pocket expenses totalling $46,971.89 for:
1. General practitioner consultations at the cost of $420 per year for the remainder of her life;
2. Ten hours of physiotherapy, acupuncture and therapeutic massage every year to treat exacerbations of her condition for her life expectancy;
3. Counselling as recommended by Dr Dragutinovich;
4. Additional services as recommended by Dr Endrey-Walder;
5. Future medication at a cost of $100 per month;
6. Attendance at a pain management unit or with a pain specialist at the cost of $10,000.
The defendant submitted that the only amount allowed should be for infrequent medical consultations with a general practitioner (as the plaintiff would be seeing her doctor anyway for her other conditions) and an amount for non-prescription analgesia.
As stated above, I prefer the more recent opinion of Dr Jones that the plaintiff has no relevant psychiatric condition established, to that of Dr Dragutinovich which is over four years old. The plaintiff seemed to be a resilient and stoic person. I am not satisfied of the need for any counselling as recommended by Dr Dragutinovich.
As stated above, I do not accept the plaintiff's evidence in relation to falls being caused by injuries to her right leg, as opposed to her pre-existing medical problems and more particularly the injury to the plaintiff's left leg. I also do not accept that the 13 May 2017 fall and fracture had any relevant connection to the 26 April 2013 accident. I am not satisfied on the evidence that the plaintiff's various falls after 26 April 2013 are connected to injuries in the motor vehicle accident as opposed to her pre-existing back and leg problems and the serious injury which she sustained in the 10 April 2013 accident.
I accept that the plaintiff still has some restrictions and symptoms in her neck, lower back and left shoulder arising from the soft tissue injuries identified in the reports of Dr Rosenthal and Dr Faithfull. These injuries include an aggravation or exacerbation to the plaintiff's prior neck injury, back injury as well as soft tissue injuries to the plaintiff's right hip, left shoulder and right thumb. I am not satisfied based on Dr Rosenthal's report that the plaintiff had any relevant injury caused to her right shoulder arising from the accident. I am also not satisfied that the soft tissue injury to the right knee has any continuing relevance.
In my view, these conclusions derive support from:
1. The injury details in the plaintiff's claim form at Exhibit C page 35;
2. The medical certificate of Dr Ghani dated 9 May 2013 (but not in relation to the lower back and right thumb);
3. The notes from Wollongong Hospital which support tenderness in the neck, pain in the lower back and left shoulder pain of a limited nature;
4. The plaintiff's evidence as to her falling on her right side;
5. The complaints to Dr Endrey-Walder as recorded in his report. I note Dr Endrey-Walder found a full range of movement of the right thumb and no clinical evidence of abnormality of the right knee. Dr Endrey-Walder noted that the plaintiff had functional deficit with her right hand and with her left upper limb;
6. The symptoms reported to Dr Dixon. However, I prefer the opinions of Dr Rosenthal and Dr Faithfull to the extent they are different to those of Dr Dixon whose opinions seem extreme in the light of the other medical opinions;
7. Dr Dan's 29 January 2016 opinion that the motor vehicle accident caused an exacerbation of the plaintiff's pre-existing lumbar dysfunction and cervical dysfunction;
8. The opinions of Dr Rosenthal and Dr Faithfull. I note Dr Rosenthal expresses the opinion that none of the plaintiff's subsequent falls are due to the motor vehicle accident injuries and appear to be due to the pre-existing left leg condition. I accept that the plaintiff had some continued restriction in movement in the neck, left shoulder and an exacerbation of her back pain;
9. The plaintiff's evidence at T76.39-82 and T207-209. I have been cautious in considering the plaintiff's evidence because of her habit of making wide statements and exaggerating her evidence.
I do not accept the defendant's reports provided by Dr Harbison and Dr Lowy to the extent they say the plaintiff no longer has any pain or restrictions to her neck and back. The plaintiff is stoic. I accept her evidence that she has some ongoing restrictions. However, the restrictions are limited. The surveillance video evidence which is Exhibit 2 shows the plaintiff to be reasonably mobile prior to the 13 May 2017 fall.
Taking into account all of the evidence and taking into account that the plaintiff would be seeing her general practitioner anyway for other problems unconnected to the accident and applying an appropriate discount for the fact that the plaintiff had an existing chronic problem with her neck and lower back and serious problems with her left knee which I find established on the balance of probabilities, I allow:
1. Two general practitioner consultations per year at the cost of $80 each for a period of five years ($80 x 2 = $160 ÷ 52 = $3.07 per week x 231.5 multiplier = $710.70) amounting to $710.70;
2. Occasional physiotherapy as required for a five year period to treat exacerbations or flaring up of the plaintiff's neck, left shoulder and back conditions. I allow a lump sum of $2,000 under this head;
3. I do not accept the recommendations for an amount for future surgery. However, I accept the recommendations of Dr Endrey-Walder for potential ultrasound guided injections in the plaintiff's right hip and left shoulder for a period of five years. I would allow $3,000 under this head;
4. The claimed attendance at a pain management unit or a pain specialist is not allowed as the plaintiff's primary pain seems to be directed at her neck, back, left leg and to some extent her pre-existing neck and back injuries. I do not believe that this significant expense as claimed is justified on the evidence;
5. The plaintiff is likely to need anti-inflammatory and over-the-counter analgesia as required. I also allow this for a period of five years. Having regard to the difficulty of assessment I allow $2,000 as a gross sum under this head.
The total allowed for future out-of-pocket expenses is therefore $7,710.70.
I have allowed the amounts only for a period of five years as I think this is reasonable in all the circumstances having regard to the fact that the injuries are only soft tissue injuries, the evidence shows that the plaintiff has had chronic neck and back problems and the radiological evidence shows continuing degenerative change in the plaintiff's neck and back.
[4]
Future care/assistance
The plaintiff no longer presses her claim for care of her horses. The following is sought:
1. Domestic assistance for four hours weekly at $47.80 per hour - $115,255;
2. Car washing at $60 per month - $8,346.46.
These figures are taken from the recommendations of Ms Mullen in her 11 February 2015 report: Exhibit C page 78 and page 87. Dr Endrey-Walder notes that the plaintiff's functional development as at 2014 would impact on her domestic work duties. Dr Dixon would only allow two hours a week for a commercial cleaner to do heavy cleaning.
As stated above, in my view the defendant has established that the plaintiff had chronic neck and back problems prior to the accident on the balance of probabilities. Accordingly, there must be a discount for the future possibility of these conditions becoming worse, having regard to their lengthy duration in the medical records. Further, the plaintiff has had a serious injury to her left leg and the fracture to her back in the 13 May 2017 accident. Ms Mullens' conclusions in relation to the plaintiff's limitations also appear to be somewhat inconsistent with the surveillance material and must take into account the plaintiff's pre-existing conditions.
Having regard to all of these matters, I think that the claim for domestic assistance which is limited to shopping, cleaning of her house and washing her car should be heavily discounted. It should also be given for the same period of five years which I have indicated above. In my view, having regard to the plaintiff's other injuries and pre-existing conditions, it is likely that the plaintiff would have required domestic assistance anyway by the time she reached her mid-70s. There accordingly should be a further discount in accordance with Metaxoulis at [81]. I therefore allow one and a half hours domestic assistance per week for five years at the rate set out in Ms Mullen's report (which was not disputed) ($47.80 x 1.5 per week = $71.70 x 231.5 multiplier = $16,598.55) which totals $16,598.55.
The claim for washing the plaintiff's car seems to be connected to a large car. Two cars were shown in Exhibit 2. I would allow $1,000 as a lump sum for this amount applying similar discounts. Accordingly, the amount I allow for future domestic assistance is $17,598.55.
Having regard to the continued disagreement in relation to past out of pocket expenses, I will request the parties to bring in short minutes of order to reflect these reasons.
[5]
Disposition
For the above reasons, I make the following orders:
1. Judgment for the plaintiff against the defendant.
2. I reserve the question of costs for further submission or agreement.
3. The parties are to bring in agreed short minutes of order within 14 days reflecting these reasons for decision.
4. The parties have liberty to apply to the Associate to Dicker DCJ on three business days' notice.
5. Exhibits to be returned after 28 days.
[6]
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: 26 November 2018
The defendant handed up a Statement of Issues at the hearing. This lists the issues in dispute as follows:
"LIABILITY
1. The circumstances of the subject accident.
2. Whether and if so to what extent, the defendant's breach of duty was causative of injury.
3. Whether the plaintiff was guilty of contributory negligence and if so, the appropriate reduction to be applied
QUANTUM
4. The nature and extent of any injuries and disabilities caused by the subject accident.
5. The nature and extent of any pre-accident medical conditions suffered by the plaintiff and how they ought be taken into account when assessing damages in the context of the principles discussed in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 at [93] -[109].
6. The nature and extent of any post-accident injuries and conditions suffered by the plaintiff and whether they constitute a Novus Actus Interveniens, or alternatively how they ought be taken into account when assessing damages.
7. The plaintiff's most likely future circumstances but for the accident.
8. Whether and if so, to what extent the treatment and out of pocket expenses claimed to date and into the future are:
8.1 causally related to the subject accident.
8.2 reasonable and necessary.
9. Whether the plaintiff requires future care and if so:
9.1 what is the proper measure of the plaintiffs need for care.
9.2 whether the claim for care of horses is compensable.
9.3 whether and to what extent the need for care is causally related to the subject accident.
9.4 whether it is appropriate to make an award of damages for care on a commercial basis."
As indicated above, the plaintiff has an extensive prior medical history. This will need to be considered in some detail to determine both the plaintiff's medical conditions prior to the accident and her most likely position but for the accident.
The submissions of the parties
The parties made detailed written and oral submissions.
The plaintiff, in general summary, made submissions as follows:
1. While it was accepted that the plaintiff had idiosyncratic characteristics, was prone to loquaciousness, used florid language and often gave a stream of consciousness in the course of her oral evidence, she should be found to be largely a witness of truth. Examples given were that the plaintiff's claim that Dr Ghani was a highly qualified general practitioner (T114.45) was established by his qualifications: Exhibit C page 143. Further, it appears clear that the plaintiff did attend the fracture clinic at Wollongong Hospital before going to the Emergency Department on 26 April 2013: Exhibit C page 236.
2. The plaintiff should be regarded as a person who is generally stoic and resilient: Exhibit C page 101. The surveillance film which is Exhibit 2 should be viewed in that light. The plaintiff should be accepted that she struggled through with her activities after the accident even with her pain. The plaintiff's activities as shown in the surveillance film were not inconsistent with her presentation to the occupational therapist Ms Mullen in early 2015;
3. The plaintiff's version of the motor vehicle accident and what was said by her and by the defendant should be accepted, apart from the fact that the window that was down was that on the passenger side rather than the driver's side of Ms Dowell's car. The plaintiff's version of shouting, the defendant looking at her and the plaintiff and others banging on the defendant's car and being ignored by the defendant should be accepted. It was open to the court to find that the defendant did not hear the plaintiff's shouting;
4. In the case of the claim by the defendant of contributory negligence, this should be rejected. The plaintiff was crossing the road in the company of Mr Early. It must be accepted that the defendant reversed the car without her or Ms Elder seeing the plaintiff. The plaintiff's evidence is clear that she was behind the defendant's car when it was reversing about one third of the way across the back of the car on the driver's side. It appears from the evidence that the plaintiff was walking towards her own car with her right hand side facing the defendant's car: T32.25-.32; T231.31; see also Exhibit B. The plaintiff was in a full leg brace with a crutch under her left arm and holding a handbag. It should be accepted that the plaintiff unselfishly pushed Mr Early out of the way so that he was not struck by the car, in the course of which the crutch under her left arm fell to the ground. Having regard to the plaintiff not having a crutch, being in a full leg brace and thus of limited mobility and having unselfishly pushed Mr Early out of the way, there should be no finding that the plaintiff did not take reasonable care for her own safety. There should be no discount for contributory negligence. It should be accepted that the plaintiff managed to fall away from the defendant's reversing vehicle and fall on her right side;
5. The records when the plaintiff presented to the Emergency Department at Wollongong Hospital confirm complaints of cervical spine tenderness and right hip, lower back and left shoulder pain. It should be accepted that the plaintiff initially felt numb but over time began to feel pain in the right side of her body and that she was sent home with medication;
6. Although the plaintiff had a long-standing history of consultation with Dr Dan stretching back to the mid-1970s, Dr Dan's report provided in 2016 is significant at Exhibit C page 91. He states that although the plaintiff had a long history of lumbar spine and right lower leg symptoms his opinion was, on the history provided by the plaintiff, that the accident caused an exacerbation of her pre-existing lumbar dysfunction. He also noted the plaintiff's history of several falls, up to six or eight in a day, due to her right leg giving way. This account should be accepted and is consistent with the plaintiff's evidence;
7. The plaintiff's evidence that her right leg drags and then gives way is also consistent with various references in the evidence apart from Dr Dan's 2016 report. See the references in Dr Ghani's notes: Exhibit 1 page 66 for 12 March 2015; Exhibit 1 page 45 for 27 March 2017; Dr Cherukuri's report dated 1 September 2017 at Exhibit 1 page 93; Dr Dragutinovich's report dated 23 October 2014 at Exhibit C page 48 in the reference to the right leg losing power. Dr Dan's report, in particular, is significant having regard to his prior knowledge of the plaintiff;
8. The defendant bears the burden of demonstrating what effect (if any) the plaintiff's pre-existing condition would have had on her capacity: Purkess v Crittenden (1965) 114 CLR 164. In the light of the plaintiff's explanations and evidence, it should not be accepted that the defendant has been able to establish that the plaintiff's subsequent injury to her spine on 13 May 2017 was not causally related to her motor vehicle accident. While it is accepted that the plaintiff had longstanding neck and lower back problems which must be taken into account, Dr Dan's report in 2016 supports an exacerbation of her condition;
9. If the court finds that the fall on 13 May 2017 is due to the 26 April 2013 motor vehicle accident, then the court should refer the matter back to the Authority for further assessment pursuant to s 62 of MACA. Although a discretion is involved in this decision, it would be appropriate if the plaintiff loses the opportunity for claiming significant further damages;
10. The plaintiff claims all of the heads of damage set out in her schedule. However, the claims for assistance in relation to the plaintiff's horse maintenance activities are no longer pressed. The plaintiff claims the counselling recommended by Dr Dragutinovich. The plaintiff claims the various assistance recommended by Dr Endrey-Walder including the recommendations for medical assistance. The plaintiff also claims attendance for pain management with a pain specialist. Domestic assistance for four hours per week is claimed including for car washing per month. It is open to the court to discount the domestic assistance claims for the plaintiff's pre-existing injuries although any discount should be minor. It is necessary to look at the plaintiff's capabilities prior to the fall on 10 April 2013 and the motor vehicle accident on 26 April 2013 and compare them to her current position. The plaintiff was active and able to undertake all activities prior to the accidents. It is open for the court to make a discount in relation to the left leg, and the existing neck and the existing back problems. However, Dr Dan's report should be accepted that the instability with the right leg means the plaintiff does not have support if she has problems with her left leg. The plaintiff is in need of domestic assistance in relation to shopping and cleaning her house.
Findings of fact
Having regard to all of the evidence and the submissions made by the parties, I make the following findings of fact:
1. The plaintiff, Ms McPherson, lives in Nowra in New South Wales in a Housing Commission one bedroom ground level residence and is retired and keeps horses. She was born in July 1949 which made her 69 years old at the time of the final trial and 63 years old at the time of the motor vehicle accident in question on 26 April 2013;
2. The plaintiff had a lengthy history of medical problems which I will consider in the part of this judgment dealing with the medical evidence;
3. In March or April 2013 the plaintiff moved from her then residence to live in a caravan at a property at Jaspers Brush. The evidence suggests that the plaintiff had fallen over a number of times whilst carrying boxes in the course of moving residences: Exhibit C page 196;
4. On or slightly before 10 April 2013, the plaintiff had another fall and severely injured her left knee. The plaintiff also made complaints in relation to her left thumb, wrists, ankles and right knee: Exhibit C page 196. The evidence suggests that there was a twisting type injury with significant pain and swelling. Other evidence establishes that the left knee had given way multiple times in the two weeks after the accident which occurred on or about 10 April 2013: Exhibit 1 pages 174-175. The plaintiff was placed in a Zimmer splint leg brace and given crutches to mobilise. With the assistance of the brace and her crutches, the plaintiff was able to drive her car, do some shopping and feed her horses at the property where she was staying;
5. The plaintiff described the left leg injury as providing her with a lot of pain and with extensive limitations: T37.24-.35. I accept that evidence;
6. The plaintiff described the injury as "smashing" her left leg: T17.39. She was referred to the fracture clinic at Wollongong Hospital for ongoing treatment;
7. On 26 April 2013 the plaintiff drove to Kiama and parked her four wheel drive vehicle in Collins Street. She was intending to go to the NRMA to obtain CTP insurance, obtain a pink slip for her vehicle and then proceed to the fracture clinic in Wollongong for treatment to her left leg. After the plaintiff completed her business at the NRMA she proceeded to cross Collins Street towards her parked vehicle. The defendant's vehicle was parked to the south of the plaintiff's four wheel drive vehicle. Mr George Early, an elderly gentleman, offered to assist the plaintiff in crossing the road and in due course accompanied her in the crossing of the road;
8. As indicated above, I accept the versions of Ms Dowell and Ms Elder that they did not see Ms McPherson or Mr Early when Ms Dowell was reversing her car. I also accept their versions that there was no eye contact with the plaintiff, no grimacing by Ms Dowell and that they did not hear or see the plaintiff or any other person shouting at them to stop reversing or that any person including the plaintiff repeatedly struck their car. As I have indicated above, I think these matters are inherently improbable and I prefer the accounts of Ms Dowell and Ms Elder who were reliable witnesses. The plaintiff is likely to have called out when the car was near her but I find that neither Ms Dowell or Ms Elder heard any call;
9. The defendant has admitted liability and has admitted that in reversing her car she struck the plaintiff. As the defendant and Ms Elder did not see the plaintiff or Mr Early, despite not accepting her on other aspects, I accept the plaintiff's evidence that Ms Dowell was reversing her car towards her and Mr Early, that the plaintiff pushed Mr Early out of the way as he had become "frozen" to the spot when he saw the car reversing, that she was struck on the right hip and then fell towards her right hand side. I accept the plaintiff's evidence that the parts of her body which hit the ground were the right side of her knee, her right hip, her right shoulder and then her head hit the ground at the back of the right side. I also accept that the plaintiff hurt her left shoulder when she pushed Mr Early out of the way;
10. I accept the plaintiff's evidence that she initially believed she had not suffered any serious new injury as a result of the collision (Exhibit C page 44) and that she felt somewhat numb. I reject the plaintiff's evidence as an exaggeration that she felt numb below the neck;
11. I also reject the plaintiff's account of what Ms Dowell allegedly said to her in relation to any new injury being irrelevant as she had already broken her leg. I think this is highly unlikely having seen Ms Dowell and I prefer the evidence of Ms Dowell on this issue. The inaccuracy of this evidence raises real doubts in relation to the plaintiff's reliability on contested issues;
12. In these findings, I have accepted part of the plaintiff's evidence but not other parts. In making factual findings, a court may accept part only of the particular witnesses' evidence and may do so even if it is found that a witness is lying as to part of the evidence of the witness: Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [118]-[123]; Danckert v Tonkin [2015] NSWSC 1570 at [152]; Croucher v Cachia [2016] NSWCA 132 at [129];
13. I find that the plaintiff then drove her car to obtain the pink slip for it and then proceeded to the fracture clinic at Wollongong Hospital. In the clinic, the plaintiff complained of pain and swelling to her left knee and that the left knee had given way multiple times since she was seen in the Emergency Department on 10 April 2013: Exhibit C page 174. I accept that this occurred. This reinforces the significant nature of the left knee injury;
14. I accept the plaintiff's evidence that she then began to feel quite unwell and went to the Emergency Department at Wollongong Hospital. Radiological tests were undertaken in relation to the plaintiff's chest, cervical spine, lumbo-sacral spine and pelvis. No fractures or other abnormalities, other than degenerative changes particularly in relation to the cervical spine, were noted: Exhibit C pages 164-165. The plaintiff did not attend the Emergency Department of Wollongong Hospital until 5:10pm on 26 April 2013: Exhibit C page 152. The plaintiff complained of lower cervical spine tenderness, pain in the lower back, pain to her hands, left shoulder and hips as well as striking her head. Other records show the plaintiff complaining of neck pain and right hip pain. Complaints of left shoulder pain were put down to a muscular strain due to a full range of movement: Exhibit C page 159. It was concluded in the hospital that there was likely soft tissue strain to the plaintiff's neck, left shoulder and chest and she was discharged home. No bony injuries were identified: Exhibit C page 159. As indicated above, I found the plaintiff to be an unreliable historian in relation to medical issues and where there is any inconsistency, I prefer the contemporaneous records;
15. The plaintiff drove home. Despite her various injuries, the plaintiff was able to water and feed her horses over the subsequent days but with some difficulty. She has not been able to undertake care of the horses in relation to covering them with heavy rugs, grooming and maintenance of their hooves;
16. On 3 May 2013, the plaintiff attended the Wollongong Hospital fracture clinic and said that it was painful to weight bear on her left leg and complained of the left knee giving way. However, she was still driving her car and feeding her animals at the property: Exhibit C page 175;
17. On or about 26 June 2013, the plaintiff was involved in another motor vehicle accident in which her car was written off when it was hit by part of a falling tree. The plaintiff complained of a flare-up of knee pain in both knees. At a fracture clinic at Wollongong Hospital on 2 August 2013 following this accident, the plaintiff complained of instability in her left knee with it giving way and that she was having physiotherapy. The plaintiff also complained of right hip pain and lower back pain: Exhibit C pages 177 and 179.
18. The plaintiff complained that her condition following the 26 April 2013 accident deteriorated over the next several years and that her right leg was giving way. I will consider this further in the medical findings part of these reasons. In summary, I am not satisfied on the evidence that the plaintiff was having problems which she claims due to the 26 April 2013 accident in her right leg giving away as opposed to her left leg giving way;
19. Despite the plaintiff's claims of a deterioration in her condition, the surveillance evidence which became Exhibit 2 in the proceedings is significant. It shows that prior to the plaintiff's serious fall on 13 May 2017, the plaintiff appeared to be moving freely without the need to use a crutch or walking stick for support. This is a somewhat different presentation to that made by the plaintiff to the occupational therapist Ms Mullen in early 2015 and to the defendant's Dr Harbison in 2016. The plaintiff appeared to be able to move fairly freely, was able to turn her head and bend, and could fill up and carry a relatively heavy bottle of water and lift it into her car to take it to assist in feeding and watering her horses. Whilst the plaintiff asserted in her evidence that she had restrictions and pain and she merely put up with it, the surveillance evidence shows that up to the accident on 13 May 2017, the plaintiff at least was able to move fairly freely and bend without the need for a crutch or walking stick;
20. On 13 May 2017, the plaintiff had a serious accident where she fell into a deep dip in a paddock which is described in places in the medical evidence as "a hole". This is likely to have been the term used by the plaintiff to describe it. The plaintiff claims that this was somehow due to her right foot dragging but I do not accept that and there is no evidence other than the plaintiff's to support it. I find that the plaintiff whilst walking across the paddock did not see the hole and tripped in it and fractured the L1 vertebra in her back when she fell. This is reflected in the surveillance evidence which shows the plaintiff wearing a back brace after the accident and moving in a more restricted fashion;
21. I accept the plaintiff's evidence that she has trouble undertaking some basic domestic chores such as mopping, using a vacuum cleaner, undertaking extensive sweeping, undertaking frequent changing of her bedding, cleaning the bathroom and, on occasions, shopping. Whether this is due to the 26 April 2013 accident will be considered further below;
22. I find that the plaintiff is able to feed and water her horses herself with some difficulty. I find that she cannot groom them or undertake maintenance of their hooves: T212.10-.44.
Contributory negligence
As stated above, the defendant has admitted a breach of duty of care owed to the plaintiff and that the plaintiff whilst crossing Collins Street Kiama on the day of the accident was struck by the defendant's reversing vehicle: Statement of Claim paragraph 2; Defence paragraph 1. The particulars of contributory negligence pleaded by the defendant are set out in paragraph 3 of the Defence and are as follows:
"3. As to paragraph 5 of the Claim, if the Plaintiff suffered injury, loss and damage as is alleged in the Statement of Claim (which is specifically denied) such injury, loss and damage was caused or contributed to by the negligence of the Plaintiff.
PARTICULARS OF CONTRIBUTORY NEGLIGENCE
a. Failing to give way to the Defendant's reversing vehicle;
b. Acting recklessly and dangerously in the circumstances;
c. Placing herself in a position of peril;
d. Failing to take any or any proper precautions for her own safety;
e. Crossing the road when it was unsafe to do so;
f. Exposing herself to a risk of injury that could have been avoided by the exercise of reasonable care."
In Hyjer v Lopes [2018] NSWDC 8 I stated the following in paragraph 162:
"[162] 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)."
Sections 5R and 5S of the Civil Liability Act 2002 (NSW) ("CLA") provide as follows:
"5R Standard of contributory negligence
(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 a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
In Jay v Baker [2018] NSWDC 270 I stated as follows at paragraphs 561-563:
"[561] In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (with whom Barrett and Gleeson JJA agreed) stated as follows at [161]-[162].
[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 ss 5B and 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 38(3) requires the court to reduce the damages recoverable "by such percentage as the court thinks just and equitable in the circumstances of the case".
[562] The decision of the Court of Appeal in Grills was quoted with approval by Gleeson JA (with whom Leeming JA and Davies J agreed) in Boateng v Dharamdas [2016] NSWCA 183 at [129]. See also the analysis of Meagher JA in the Court of Appeal in Davis v Swift [2014] NSWCA 458 at [23]-[29].
[563] Following these principles, in applying s 5R of the CLA, a court considering contributory negligence is required in determining whether a person has been contributorily negligent to apply the provisions of ss 5B and 5C of the CLA which I have set out above."
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."
Accordingly, 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 may be found 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 [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 admitted in the Defence caused the injuries of which the plaintiff complains.
The defendant submitted, in general summary, as follows:
1. The plaintiff's submission that the matter should be referred back for assessment depending on the court's findings in relation to the 13 May 2017 fall which led to a fracture at the L1 level, should be rejected and is misconceived. The court has a broad discretion in any application under s 62 of MACA: Trazivuc v Motor Accidents Authority [2010] NSWCA 287 at [77]-[79]. It is not appropriate to refer the matter back after a trial has concluded. The plaintiff could have sought to refer the matter back prior to commencing proceedings and after the accident. The proceedings were commenced in January 2018. There is no medical evidence that the fracture at the L1 level which occurred on 13 May 2017 was related to the motor vehicle accident. The plaintiff's evidence is not sufficient as to this issue. What occurred on 13 May 2017 was a simple fall. It would be unfair to refer the matter back after the trial was run and evidence was completed;
2. The plaintiff's credit is challenged and she should be rejected as a reliable witness. While she is idiosyncratic in nature and has many years of life experience, the problems with her evidence in relation to what occurred during the motor vehicle accident cannot be ignored. Ms Dowell and Ms Elder were very impressive witnesses and should be preferred. The plaintiff's evidence should be rejected that she and others shouted and bashed the plaintiff's car. It should be held that this did not happen. In particular, it should be rejected that Ms Dowell said to the plaintiff that it did not matter that she had been hit as she had already broken her leg. Such a statement would be outrageous and would appear to be completely inconsistent with the presentation given by Ms Dowell. The plaintiff's willingness not to tell the truth and to exaggerate impacted on her evidence throughout;
3. There should be a reduction of 25% for contributory negligence. While the defendant cannot give evidence as to what the plaintiff did before she was struck, the plaintiff placed herself in a perilous position only 5 metres away from the reversing car: T26.5-.32; T27-T28. It should be held that the plaintiff did not call out as she should have. The evidence at T26 suggests that the plaintiff must have walked across the path of the moving vehicle particularly as she was hit in the side. This amounted to a failure by the plaintiff to take reasonable care for her own safety;
4. It should be found that the cause of the plaintiff's various falls are the problems with her left leg rather than her right leg. The left leg injury predates the accident, is on the medical evidence a significant injury, is an injury which is an obvious source of instability for the plaintiff and was referred to by the plaintiff in the MAS assessments as reflected in the reports of Dr Rosenthal and Dr Faithfull which were about 12 months apart. Dr Rosenthal accepted that the left leg giving way caused the fracture of the plaintiff's right hand when he saw her in June 2015: Exhibit C page 106. The plaintiff's references to problems with the right leg are not as reliable.
5. The reference in Dr Dan's report at Exhibit 1 pages 91-93 merely recites a history given by the plaintiff who was an unreliable witness. The reference in Dr Dragutinovich's report at Exhibit C page 48 does not say that the plaintiff's right leg "gave way", only that it lost power. This report is also several years old. The plaintiff had significant back problems prior to the accident including with sciatica with the need for L4/L5 pain injections. These are likely to have been the cause of symptoms in the plaintiff's right leg. There is not sufficient evidence before the court of a medical nature to downplay the significance established on the medical evidence of the left knee injury;
6. The accident on 13 May 2017 involved the plaintiff falling in a hole. There is no evidence this was due to instability in the right leg and the plaintiff's evidence of her right leg dragging should be rejected. In any case, she still fell in the hole;
7. Further, the plaintiff took two weeks after the 26 April 2013 accident to see Dr Ghani. Her complaints in hospital of pain were only of a low grade pain of 2/10. The x-ray and CT scans showed no major problems arising from the 26 April 2013 accident. The plaintiff was able to drive home. There was no mention of the 26 April 2013 accident in the fracture clinic notes and there was a four month gap after the initial consultation the day after the plaintiff saw her solicitor, before she saw Dr Ghani again: see Exhibit 1 pages 70-71. There was no reference to right leg problems in the consultations after that gap. In that time, however, the plaintiff had been involved in another serious motor vehicle accident on 26 June 2013. The reference on 5 June 2013 in Dr Ghani's notes does not refer to her right leg giving way. The history of medical consultations in the defendant's written submissions shows a long history of back, neck and sciatica problems;
8. The court cannot accept in relation to causation that the plaintiff's later falls were connected to the motor vehicle accident or the right leg giving way in the light of the 26 April 2013 accident being very minor from the hospital notes. The court should find that causation is not established in relation to any of the plaintiff's current problems;
9. If causation is established, the court should find that the defendant has satisfied the Seltsam onus in the present case. There should be a heavy discount for the possibilities of any of the plaintiff's current problems being due to her pre-existing neck and back problems and the significant left leg injury. At the most, any amount for domestic assistance should be heavily discounted and should be for a closed period. There should also be a discount for the likelihood of the plaintiff having problems anyway and should be also discounted having regard to the plaintiff's age: Metaxoulis v McDonalds Australia Ltd [2015] NSWCA 95 at [81]. The closed period should only be for a very limited period of a few years going forward at the most. Any domestic assistance allowance if the plaintiff gets past the causation issue should be limited. See the report of Dr Endrey-Walder;
10. The surveillance film is significant and shows the plaintiff having limited restrictions prior to the 13 May 2017 accident;
11. In relation to future treatment, Dr Harbison's report says there is no need. At the most it would involve occasional medical review and analgesia and would involve significant discounting as the plaintiff would be seeing the doctor anyway for her other problems;
12. The defendant has a defence for past out-of-pocket expenses under s 83 of MACA;
13. Dr Dan's report at Exhibit 1 page 91 should be seen as a medico-legal report setting out the plaintiff's medical history. In relation to complaints, he merely recites the history given by the plaintiff to him and gives an opinion based on that history. Any references to the right leg giving away by Dr Ghani were not made initially but were made much later on following a history given by the plaintiff.
Sections 5B and 5C of the CLA provide 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."
Section 138 of MACA provides as follows:
"138 Contributory negligence - generally
(cf s 74 MAA)
(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.
…"
In my factual findings above, I have found:
1. That as admitted by the defendant, she breached her duty of care owed to the plaintiff and the vehicle she was reversing struck the plaintiff;
2. That at no time did the defendant or Ms Elder see the plaintiff or Mr Early as Ms Dowell was reversing her car;
3. That the defendant reversed at least substantially due to Ms Elder telling her that it was safe to do so from her perspective. See also T253.44-254.3;
4. That the plaintiff and Mr Early were in the path of the defendant's vehicle as she reversed from her car spot;
5. That in crossing the road the plaintiff was suffering from the consequences of her recent serious injury to her left leg and had the support of a leg brace and a left crutch;
6. That Mr Early became "frozen" to the spot as the defendant's car began reversing towards him and the plaintiff and that the plaintiff pushed Mr Early out of the way to avoid him being struck;
7. That the plaintiff was slightly struck by the defendant's vehicle on her right side and in attempting to get out of the way fell on her right side;
8. That because of her left leg injury and the loss of the left crutch in pushing Mr Early out of the way, the plaintiff had limited mobility;
9. That the defendant should have seen the plaintiff and Mr Early whilst reversing her car. Why she did not do so is unclear;
10. I have found that I prefer the defendant's and Ms Elder's versions of what occurred when Ms Dowell's car was reversing. In particular, I reject that there was eye contact between the plaintiff and the defendant or that there was yelling or bashing on the car which the defendant ought to have heard or perceived. I accept that it is likely that the plaintiff called out as the car was near her but was not heard.
In the light of the above matters, I now turn to consider the principles in ss 5B and 5C of the CLA to determine whether the plaintiff should be found to be contributorily negligent:
1. The risk was foreseeable of the defendant potentially not seeing the plaintiff whilst reversing. Whilst this was a risk which in my view the plaintiff ought to have known having regard to the fact that the defendant was reversing slowly, the plaintiff reasonably seems to have formed the view that she was likely to be seen by the defendant;
2. The risk in my view that the defendant had not seen the plaintiff was a fairly insignificant one in all the circumstances of the case;
3. In my view a reasonable person in the position of the plaintiff walking with Mr Early would have taken particular care in crossing the road. The fact that she was with Mr Early is relevant. Similarly, it is relevant that the plaintiff unselfishly pushed Mr Early, who was an elderly gentleman, out of the way;
4. Having regard to the speed the defendant was reversing and the fact that there appears to have been a reasonably clear view behind the defendant's car, the probability that the defendant had not seen the plaintiff and may collide with her was relatively insignificant;
5. A collision with the plaintiff was potentially very serious as she was a pedestrian even though the defendant's vehicle was travelling slowly;
6. The burden of taking precautions to avoid the risk of harm was relatively insignificant to the plaintiff;
7. The social utility of the plaintiff crossing the road was not of a nature to mean that she should not have taken precautions in crossing the road.
I accept the plaintiff's evidence that she did not see the defendant or Ms Elder getting into Ms Dowell's car. I accept the plaintiff's evidence that the first time she realised the car was reversing was when the reversing lights went on and it started to move. The fact that the plaintiff took steps to unselfishly push Mr Early out of the way and in doing so hurt her left arm and lost her crutch which was supporting her, appear to me to be relevant. As the plaintiff was crossing the road before she saw the car reversing, I do not consider that the plaintiff failed to take reasonable care for her own safety.
Although there are inconsistent authorities on the issue, in my view I am entitled in considering contributory negligence to have regard to the plaintiff's age and physical infirmities with her left leg at the time of the accident: Smith v Zhang [2012] NSWCA 142 at [21]-[22]; Serrao v Cornelius (No 2) [2016] NSWCA 231 at [61]. See also Allen v Chadwick (2015) 256 CLR 148 at [61].
Having regard to all of these matters, in my view the plaintiff was not contributorily negligent as alleged by the defendant. She did not act recklessly or dangerously or place herself in a position of peril and did not cross the road when it was unsafe to do so having regard to there being no evidence of other cars and having regard to the presence of Mr Early. I am not satisfied on the evidence that the plaintiff in all the circumstances could have manoeuvred herself to get out of the way of the defendant's reversing vehicle as claimed. The plaintiff had an injured left leg, had lost her left crutch, thus had limited mobility and had just pushed Mr Early out of the way. In my view, looking at the evidence as a whole, the plaintiff had not failed to take reasonable steps to protect her own safety.
I have set out my medical findings above. In summary, the collision caused a number of soft tissue injuries to the plaintiff which did not resolve quickly.
As set out above, I am not satisfied on the evidence:
1. That the plaintiff's right leg as opposed to her left leg has been giving way as claimed;
2. That the various falls which the plaintiff has given evidence of are due either to her right leg giving way or that if that has occurred that that is due to any injury in the motor vehicle accident;
3. That the fall on 13 May 2017 in which the plaintiff fractured her back at the L1 level was due to any injury caused in the 26 April 2013 accident. It appears on the evidence that the plaintiff simply did not see the dip or hole in question and fell into it thereby injuring herself. I do not accept the claim by the plaintiff that the right leg was dragging or that it in any way contributed to the accident. No such apparent disability was apparent in the surveillance material which became part of Exhibit 2. Her right leg dragging is also not established on the medical evidence. I refer to my analysis above.
Accordingly, causation is established only in relation to the soft tissue injuries which I have found arose from the 26 April 2013 accident. There is in my view no reason why it is not appropriate for the scope of the defendant's liability to extend to the harm so caused which I have found: 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. These injuries which I have found appear to cause ongoing difficulties and restrictions with shopping and domestic duties as set out in the plaintiff's oral evidence and Ms Mullen's evidence (which must be reviewed with some caution). I therefore find taking into account all the conflicting evidence, that but for the accident, the plaintiff's most likely position is that she would have been able to undertake some shopping and some domestic duties but with difficulties. The left leg and back brace would have given her support. The injuries suffered in the accident exacerbated her pre-existing problems and have made shopping and domestic duties even more difficult and more painful and she has ongoing restrictions to a limited degree as a result of the accident.