Pham v Shui

Court of Appeal (NSW)|2006-10-12|Before: Santow JA, Bryson JA, Brereton J

JUDGMENT OF: Santow JA at 1; Bryson JA at 107; Brereton J at 108

DECISION: Appeal allowed with costs. See orders at [106].

CATCHWORDS: TORTS - NEGLIGENCE - findings on causation - deduction for contributory negligence by cyclist riding on the footpath in breach of the Australian Road Rules. - PROCEDURE - effect of certificate given under s61, Motor Accidents Compensation Act 1999 - whether certificate conclusive as to causation of loss as well as for the purpose of the damages threshold - whether appropriate to exclude additional reports and oral evidence as to economic loss, given issue of certificate. - PROCEDURE - whether medical reports filed outside time justifiably admitted on the basis of exceptional circumstances within UCPR 31.18(4)

Australian Road Rules LEGISLATION CITED: Motor Accidents Compensation Act 1999 Pt 3.4, Pt 5.2, Pt. 5.3, s51, s58 s61, s63, s131 Uniform Civil Procedures Rules 31.18(4) Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 cl 26(1)

Anikin v Sierra (2004) 211 ALR 621 CASES CITED: Brown v Lewis [2006] NSWCA 87 Griffiths v Kerkemeyer (1977) 139 CLR 161 Nicholson v Nicholson (1994) 35 NSWLR 308

PARTIES: Tham Huu PHAM (Appellant) John SHUI (Respondent)

COUNSEL: S NORTON, SC/ M FRASER (Appellant) R R STITT, QC/ D M WILSON (Respondent)

SOLICITORS: Bryden's Law Office (Appellant) Sparke Helmore (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40251/06 DC 5575/03

SANTOW JA BRYSON JA BRERETON J

20 DECEMBER 2006 Tham Huu PHAM v John SHUI Judgment 1 SANTOW JA: INTRODUCTION This appeal (should leave be granted) arises in the following circumstances. There was a collision between a negligent driver (the opponent) and an elderly bike-rider (the claimant). The latter was injured only after he dismounted from his bike. He did so in order to avoid the driver who was exiting slowly driving forward in his car from a driveway onto the footpath, in course of which he collided with the claimant, injuring him. The driver had been looking to the right at the on-coming traffic in order to turn left. He was, it appears, unaware of the claimant standing in front of him in the brief two seconds or so that the dismounted bike-rider had to react before he was knocked down. 2 Compensation, as was common ground, is governed by the Motor Accidents Compensation Act 1999 ("MACA"). 3 This appeal challenges: (a) the finding of 35% contributory negligence, and (b) damages assessed at $8,235.15 after that 35% reduction. 4 As to damages, issues raised are: (a) The ambit of the conclusionary effect of the certificate given under s61 MACA following a review by a group of medical assessors under s63 of the Act; in particular, is such a certificate conclusionary beyond the threshold requirement for damages for non-economic loss and does it extend to the causation of the relevant impairment in a medical sense? (b) If the answer to (a) is in the negative, were two medical reports for the claimant and some oral evidence wrongly excluded by the trial judge, Hungerford ADCJ in relation to economic loss (domestic assistance) and the causation thereof? (c) Were certain medical reports for the opponent wrongly admitted by the trial judge, given that they were faxed to the claimant's solicitors on a Friday (28 October 2005) with the result under the Rules (UCPR 10.5(3)) that they were deemed served on the Monday (31 October 2005) outside the Registrar's ordered due date (28 October 2005); in particular did the trial judge's decision to find exceptional circumstances within UCPR 31.18(4) warrant appellate intervention? (d) Was the trial judge's allowance for domestic care vitiated by his treating the ambit of the conclusionary effect of the certificate under s61 MACA as extending to (i) the assessment of the need for domestic assistance, under economic loss, and (ii) related causal questions, such that this aspect of the damages should be redetermined at a new trial? If so, would this render issues (b) and (c) moot? (e) Depending on (d) above, could and should compensation for domestic assistance provided by the claimant's wife and daughter have been allowed for the period the claimant was in hospital? 5 Finally given that costs were awarded in accordance with liability (65% to 35%), in the event contributory negligence were successfully challenged, what implications does this have for the costs award?

SALIENT FACTS 6 On 1 February 2002 the claimant was riding his bicycle in a westerly direction along the northern footpath of Cabramatta Rd East at about 6.45pm. The claimant was aged 72 at the time of the accident. The claimant had vision problems (including cataracts) and rode on the footpath as he was fearful of road traffic. Evidence from the claimant's daughter indicated that he also had problems with deafness in both ears and often removed his hearing aids due to irritation. The claimant had sought Department of Housing accommodation based on disabilities related to hearing, vision and arthritis. The claimant and his wife moved from a Granny Flat on their son's property to a Department of Housing flat in late 2002. 7 The footpath intersected with a driveway that allowed vehicles to exit a Burger King and a BP petrol station complex. Cars exiting the premises could only turn left on Cabramatta Rd East, and would commence this turn in the footpath area before reaching the roadway. 8 As he approached this area the claimant saw the opponent's vehicle about 5 or 6m away from him. He noticed the driver was checking the traffic to his right with his head turned in that direction. The claimant stopped, dismounted and took his helmet off in the vicinity of the driveway. The vehicle then collided with the claimant at a slow speed (estimated to be 5 km/h by the police officer attending). It was submitted, and not challenged, that the claimant had about two seconds to react. 9 The claimant was taken to Liverpool Hospital by ambulance. 10 As a result of the accident the claimant fractured his right hip and injured his right femur and knee and hit his head. He underwent surgery on 11 February 2002 to insert a rod and screws to secure his right femur. He later developed a post-operative pulmonary embolus (14 June 2002). The claimant did not recover his former mobility and suffered extensive cognitive deficits. 11 The claimant was discharged from Liverpool Hospital on 1 March 2002 and immediately admitted into Braeside Hospital for rehabilitation. He was discharged from Braeside into the care of his family on 15 March 2002. The medical notes upon discharge indicated that the claimant had regained some mobility, with the assistance of a frame, and could shower himself. The claimant became an outpatient of Braeside Hospital. 12 Notes from the Rehabilitation Registrar from 8 May 2002 record that the claimant had recovered well and was independent in terms of self-care activities and only required a walking stick for longer distances. 13 The claimant then suffered a stroke, shown on a CT Brain Scan on 21 June 2002. 14 The claimant's daughter attended to the claimant while in both hospitals. When he returned to the granny flat, she visited him three to four times a week for 4-5 hours doing cleaning and cooking, with the claimant's wife helping him to shower. The claimant's wife (Ms Ho) gave evidence that she provided constant care to the claimant. 15 The claimant was generally somewhat confused during this period, including sometimes when dressing himself, and was forgetful. The assistance by the claimant's daughter continued until the claimant suffered another stroke in November 2004. The claimant was in hospital for two weeks. He was unable to speak or see for around ten days but then recovered his senses. His mental state was much the same as before the stroke. His daughter recommenced the previous visiting and care arrangements upon his return home. 16 The claimant was retired at the time of the accident and so there was no claim for economic loss relating to earnings. The claims for economic loss were related to past and future out of pocket expenses and domestic assistance (attendant care 24 hours/7 days).

The claimant's Claim 17 The claimant's initial claim was against four defendants - the opponent, the local Council, Burger King and BP. The claims against the last three defendants were settled. 18 The claimant's wife, Ms Ho, acted as his tutor in the proceedings below, as his English was limited. 19 The opponent put a case based on 75% contributory negligence by the claimant (failing to wear a helmet, keep a proper look-out etc) and challenged the requirement for domestic care (see Judgment 5-6 for summary of challenge).

The Primary Judgment 20 The trial judge in an earlier interlocutory judgment of 7 November 2005 resolved a preliminary question with respect to medical assessments conducted under Pt 3.4 of Ch 3 of MACA. The trial judge held that the relevant certificates issued (by medical assessors and a medical assessors' review panel) were conclusive evidence that the injury sustained (a) had stabilised, (b) was caused by the accident, and (c) amounted to permanent impairment of no more than 10%. This third matter meant that s131 MACA prevented compensation for non-economic loss. The trial judge found that s61(7) prevented the Court from substituting its own determination as to the matters covered by the certificates. 21 The trial judge identified three key questions to be resolved (Judgment, 6): (a) apportionment of liability between the claimant and opponent; (b) contributory negligence by the claimant; and (c) the need for domestic attendant care.

Liability 22 The claimant had great difficulty recalling the details of the accident (Judgment, 11). The trial judge preferred the oral evidence of the claimant to the contents of the claimant's statement to Police (of 18 March 2002) where they were inconsistent (Judgment, 15). 23 The trial judge preferred the evidence of the claimant to the statement of the opponent (who did not give evidence at the hearing) (Judgment, 16). The key inconsistent statements that were therefore set aside were that the claimant had ridden into the car and was riding on the road in the opposite direction to the traffic at the time of the collision. (Neither was in issue on the appeal.) 24 The trial judge found that the opponent was negligent by not keeping a proper lookout and by failing to abide by r74 of the Australian Road Rules, which obliged the opponent to give way to the claimant (Judgment, 16). 25 The trial judge found that the claimant was negligent by riding on the footpath in breach of cl 26(1), Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999. That provision obliged him to ride on the roadway as he was over 12 years of age (Judgment, 17). The trial judge found that the claimant negligently failed to take appropriate evasive action to avoid the collision and failed to take reasonable care of his own safety by stopping in the middle of the driveway with the opponent's car approaching (Judgment, 18). There is a live dispute on appeal as to whether the trial judge was in error in finding that the claimant was knocked down on the driveway, as distinct from on the pathway, as his own evidence stated, there being no express rejection by the trial judge of his account of what happened.) 26 On the question of apportionment for contributory negligence, the trial judge placed primary responsibility on the opponent, by reason of the failure to look to his left (Judgment, 20). The claimant's contributory negligence was not an insignificant contribution, but the driver had an over-riding responsibility to keep a proper lookout and give way to users of the footpath (Judgment, 20-21). The trial judge therefore apportioned liability 35% against the claimant and 65% against the opponent (Judgment, 21).

Damages 27 Past out of pocket expenses for medication were agreed at $1153 (Judgment, 21, 41).

Medical background and assessments 28 Before dealing with future out of pocket expenses and Griffiths v Kerkemeyer damages, the trial judge reviewed the claimant's injuries and medical treatment. 29 The claimant's wife and daughter reported providing almost constant care for the claimant, including help with self-care, cooking and cleaning (Judgment, 23-25). 30 The claimant's medical records include a series of minor problems, excluding the leg injury, that are unrelated to the accident with the opponent (Judgment, 26). 31 Dr Barrett, an orthopaedic surgeon, saw the claimant on 17 March 2004. His notes recorded that the claimant could wash and dress himself but was still experiencing right thigh pain. Dr Barrett concluded that the claimant was embellishing the ongoing disability and was in fact no longer disabled as a result of the accident (Judgment, 27). The doctor concluded that the accident had not significantly interfered with the claimant's ability to lead a normal life (Judgment, 28). 32 Dr Zeman, a rehabilitation consultant, assessed the claimant in September 2005. Dr Zeman expected that no long-term complications would arise from the right leg injury (Judgment, 29). He considered that the claimant had progressive dementia, which was primarily unrelated to the accident (Judgment, 29). He considered that the accident had not affected his ability to lead a normal life (Judgment, 29-30). Dr Zeman considered the injuries arising from the accident justified 10 hours of care and assistance per week for six months. He connected the ongoing need for care to the stroke, visual and other cognitive problems rather than the accident (Judgment, 30). The trial judge appears to have accepted that assessment. 33 Dr Pham, the claimant's GP, provided a report on 26 August 2002 recording ongoing osteoarthritic pain and stiffness in the right hip. 34 Dr Le, the claimant's GP after he moved to the Housing Commission flat in 2002, provided a report on 1 June 2004 that the hip and thigh pain persisted. 35 Dr Conrad, a surgeon, assessed the claimant on 2 June 2003 based on an incomplete history that ignored the claimant's pre-accident medical problems and a stroke recorded on a CT carried out on 21 June 2002. Dr Conrad recommended ongoing rehabilitation and physiotherapy and home care assistance of 25 hour per week. 36 Dr Ellis, an orthopaedic surgeon, saw the claimant on 26 June 2003 and provided a report on 6 August 2003. He emphasised a right ankle problem but overall assessed the claimant's right leg function as good. Dr Ellis questioned whether removing the rod and screws would be necessary. 37 Dr Tam, a consultant physician and geriatrician, saw the claimant on eight occasions between 30 January 2003 and 12 May 2005 and provided three reports, dated 24 June 2004, 23 May 2005 and 9 November 2005. The recorded prognosis was poor, emphasising progressive dementia associated with likely future strokes and mobility problems.

Section 61 MACA assessments 38 The trial judge reviewed the s61 certificates and associated medical assessments. 39 Dr Carroll, an ENT specialist, examined the claimant on 1 September 2004 (report 7 September 2004) and reported a stable 56.3% hearing impairment that was unrelated to the accident. 40 Dr Giles, a plastic surgeon, assessed the claimant's leg scars on 13 September 2004 (certificate 14 September 2004) and reported they were stable and satisfactory, and presented no permanent impairment. 41 Dr Delaney, an ophthalmic surgeon, examined the claimant on 16 September 2004 (certificate 22 September 2004) and diagnosed a stable 38% loss of eyesight that was unrelated to the accident. Part of the visual defect could be linked to the June 2002 stroke. But Dr Delaney left it to the neurologist to decide whether the stroke was caused by the accident (Judgment, 36). 42 Professor McLeod, a neurologist, examined the claimant on 27 October 2004 (certificate 28 October 2004). He found that the stroke and progressive dementia were not causally related to the accident. He found that any permanent impairment to the right leg and hip was unable to be determined because of inconsistency and difficulty in examining the claimant (Judgment, 37). Following this inconclusive opinion, a medical assessment review panel was convened (25 May 2005). It arranged for Associate Professor Cameron to assess the claimant on 20 June 2005. The panel reported on 31 July 2005, finding that the progression of the claimant's nervous system complaint was not caused by the accident. The panel found that the injuries arising from the accident had stabilised at 7% of total impairment (5% nervous system and 2% femur).

Life expectancy 43 Given the claimant's medical history, the trial judge decided not to use the normal tables for determining life expectancy (at 39). Dr Zeman estimated less than 5 years and Dr Tam estimated 5-10 years. The table listed 9.8 years. The trial judge preferred Dr Zeman's view (Judgment, 40). The trial judge adopted a five-year life expectancy (Judgment, 40).

Out of pocket expenses 44 The trial judge rejected the claim for the future out of pocket expenses of an operation to remove the screws and rod (Judgment, 40). It was unlikely to occur given the claimant's overall health. 45 Future out of pocket expenses of $1.00 per week were conceded by the opponent (Judgment, 40). There was little evidence on the claimant's medication (Judgment, 41). The trial judge allowed the claimant's claim of $7/week, drawing on the agreed past rate of $6.05/week (total $1,620.50) (Judgment, 42).

Gratuitous attendant care 46 The trial judge dealt with the claim for gratuitous attendant care during the claimant's hospitalisation (Judgment, 44). The trial judge held that the attentions of the claimant's wife and daughter while he was in hospital were not compensable as Griffiths v Kerkemeyer damages because the services were not therapeutic or nursing in nature (Judgment, 46). 47 For the period after discharge from hospital, the trial judge was satisfied that part of the care provided was required by reason of the leg injury from the accident (Judgment, 47). The difficulty was in isolating these compensable services from the claimant's other needs by reason of the dementia etc (Judgment, 47). The trial judge relied on the evidence from Dr Zeman, which included that the compensable impairment justified only assistance of 10 hours per week for the 6 months after the accident (Judgment, 48). His view was supported by Dr Barrett and the discharge notes from hospital. His Honour preferred the evidence of Dr Zeman to that of Dr Tam on this point (Judgment, 49). 48 The trial judge therefore allowed the claim for 10 hours per week for 12 months after discharge from hospital (total $9,895.60) but not thereafter (Judgment, 50). 49 All damages allowed are summarised at Judgment, 50-51. After accounting for contributory negligence, the verdict was $8,235.15.

Costs 50 A $50,000 plus costs offer of compromise was made on 1 November 2005 (before the trial scheduled to commence on 7 November 2005) and was open for three days (Judgment, 52). The trial judge considered that the offer was not reasonable in the circumstances (specifically timing and the state of the claimant) (Judgment, 53). Given the small final verdict, the claimant was not genuinely "successful" in the proceedings (Judgment, 53). Given the apportionment of liability, his Honour ordered the opponent pay 65% of the claimant's costs (Judgment, 54).

DISPOSITION Contributory Negligence 51 It is significant that whilst the trial judge did not make any adverse credit finding against the claimant, nor against his daughter who attended the accident scene, beyond noting that there was much that the claimant could not remember (Judgment, 11), the trial judge nonetheless concluded, contrary to the oral answers which the claimant gave at trial, that he was "in about the centre of the driveway" when he stopped riding (Judgment, 17). The critical passage in the judgment proceeds as follows: "Other aspects of the plaintiff's conduct are disquieting. He was aware cars exited along the driveway from the shopping complex and said in the statement to Senior Constable Jones " always slow down & stop because I am careful of cars leaving the driveway." On this occasion, however, he saw the first defendant's vehicle when he was five to six metres away from him and knew the driver could not see him because his head was turned to the right; it was only then that he stopped riding, which was at a point in abut the centre of the driveway. He then dismounted from the bicycle and stood holding it, but with sufficient time to remove his helmet and place it over his arm before the car struck him. One would think the prudent and reasonable action by the plaintiff would have been to stop riding before entering the driveway and see if cars were using it. To stop in the middle of the driveway and stand there with the car moving towards him was, in my view of the circumstances, a negligent failure of the plaintiff to take reasonable care for his own safety. It also was a failure to take appropriate evasive action. With the riding of the bicycle on the footpath and those other actions, I am satisfied the plaintiff relevantly contributed to the collision." (Judgment, 17-18). 52 Earlier, the trial judge stated that he preferred and proposed to adopt the plaintiff's account of the accident over that of the first defendant (the driver) in his statement where they were inconsistent; Judgment, 16. The inconsistency however relates to the driver's account. However, the driver failed to give evidence to enable his version of events (that the claimant was struck whilst on the road riding his bike) to be tested. 53 Subsequently, the trial judge appears to accept the part of the claimant's evidence that he first saw the car five to six metres away, moving slowly; Judgment, 15. He also appears to have accepted that the claimant did "get off his bike, remove his helmet, place the helmet over his arm and then stand facing the oncoming car"; Judgment, 15-16. The trial judge adds "why the plaintiff took that action rather than some evasive action is perhaps inexplicable but, on his own evidence, that is what he did"; Judgment, 16. 54 The trial judge refers to the claimant's evidence as "clear and persistent evidence … as to what occurred"; Judgment, 16. 55 The trial judge then notes that rule 74 of the Australian Road Rules, subrule (1)(c), requires a driver to give way to "any vehicle or pedestrian on any road related area that the driver crosses to enter the road"; Judgment, 16. The trial judge concludes that the driver "negligently failed to do so". Negligence was conceded, though only on the fourth day of the trial. 56 However, less explicably, the trial judge then refers to "the admitted conduct of the plaintiff in riding his bicycle on the footpath" as being "in breach of cl 26(1) of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999" (the Regulation). He quotes this as stating that "a rider of a bicycle who is 12 years of age or older must not ride on a footpath". The trial judge does not accept the plaintiff's submission that he was a pedestrian, stating that he was satisfied that on the facts "he was at all relevant times riding his bicycle on the footpath" and that "by getting off the bicycle when he saw the car coming towards him on the driveway does not … suddenly change his status from rider to pedestrian". He thus concludes that "breach of cl 26(1) was negligence"; Judgment, 17. 57 I respectfully disagree. That the claimant dismounted before the collision occurred means that he became a pedestrian at the relevant time and was injured, not while riding his bike but when dismounted from his bike. This is so, whether this occurred on the driveway as the trial judge determined or on the pathway as the claimant stated. The fact that there was a very brief interval between dismounting from the bike and being struck is really not to the point. There was no breach of cl 26(1) by reason of which the accident occurred, save in the entirely adventitious and but-for sense; that he would not have been at the intersection of the driveway and the pathway but for having got there by riding his bike. Clearly then, the trial judge took into account an irrelevant consideration (the Regulation) in determining whether the claimant was also negligent in a contributory sense. Moreover, so far as the negligence of the opponent was concerned, he indubitably had to be alert to persons riding on the footpath such as children under 12. Even were the claimant not on the footpath but on the driveway, the obligation of the driver would be no less in taking proper precaution as regards the reasonably foreseeable possibility that a pedestrian may be on that driveway. And even if there had been a breach of cl 26(1), it does not follow that there was contributory negligence, which would be established only if the breach was a failure to take reasonable care for the cyclist's own safety. The purpose of cl 26(1) is not the protection of cyclists, or of drivers of vehicles exiting from premises, but the protection of pedestrians from cyclists. A cyclist does not fail to take reasonable care for his or her own safety by breaching that clause. 58 There was indeed considerable evidence that the claimant was on the footpath when he was hit. Examination of the photographs (tab 17, exhibits A to F) shows in exhibit A the location where he was found on the ground and not moving by his daughter immediately after she came to the accident scene. That location was on the footpath to the left as depicted on the photograph, close by the side of the kerb and near the grass verge shown in exhibit F. 59 That is entirely consistent with his oral evidence usefully summarised by the claimant as follows: Transcript reference Witness Evidence TS 7/11/2005 23.54 Plaintiff He's hit me on the spot there as he was turning left. TS 7/11/2005 26.31 Plaintiff I was standing on the side of the kerb of the road. I was standing very near the kerb near the grass. TS 7/11/2005 26.36 Plaintiff Q. Near the grass near the kerb, is that what he said? A. Yes. TS 7/11/2005 27.22 Plaintiff The car was moving about to turn left when he hit me. TS 7/11/2005 26.56 Plaintiff Q. Did you fall with the bicycle onto the roadway? A. We fell on the footpath, not on the road. TS 8/11/2005 13.2 Thuy Pham (daughter) Cross marked on Exhibit A Q. Do you know whether they had moved your father in order to treat him? A. I don't think so, but I don't think so because I saw my father still lying on the ground. Q. Where was the bike? TS 8/11/2005 37.8-10 Thuy Pham A. I think I remember it was somewhere nearby. Q. Was it closer to the road than your father? A. My father was I think closer to the road and the bike was somewhere inside, more inside. Q. How close was your father to the road? A. I think it was - he was quite close to the road because the ambulance was stopped nearby and he was quite close to the ambulance. Q. The ambulance was on the road and your father was close to the ambulance, is that correct? A. Yes, close by. Not next to it. Q. But close to it? TS 8/11/2005 38.2 Thuy Pham Interpreter: She said because there was a paramedic in between. Q. A paramedic between your father and the ambulance? A. Yes, I remember there was someone crouching or sitting very close to the car. Q. To the ambulance? A. Yes. TS 8/11/05 40.3 Constable Darren Robert Jones Q. Whereabouts was he? A. From memory he was on the outer footpath, driveway, I'm not too sure whether it was the footpath or the driveway. TS 8/11/05 43.7 Constable Darren Robert Jones Q. Were you able to identify a precise point of impact? A. No I couldn't.

60 Constable Darren Jones while producing written notes showing the claimant on the roadway conceded in his later oral evidence that he could not identify a precise point of impact. 61 There is therefore no basis for concluding otherwise than that the collision occurred at a place proximate to that identified in exhibit A, namely on the footpath just past the driveway. Indeed whether it was literally on the footpath that the collision occurred or inside the driveway, it certainly did not occur at the centre of the driveway as the trial judge concluded. However, I doubt much hangs on that precise location. It is difficult to see how there would be any greater degree of negligence implied by the accident occurring on the edge of the footpath as distinct from the edge of the driveway; in either case the driver had the primary responsibility to avoid the collision. 62 In response, the opponent relies on both the examination in chief and cross-examination of the claimant in rendering the claimant wholly or predominantly responsible for his injury. Thus he states, for example, at the second day of hearing on 8 November 2005 at T, 1: "Q. So you knew that the driver could not see you? A. He did not look at me.

Q. So you knew that the driver did not see you? A. Yes.

Q. And you stood there until the car ran into you? A. Yes."

There are similar questions and answers at T, 6-8. 63 The problem with this questioning of the witness is that at no point was it put to him that he could have avoided the car by stepping backwards, as was submitted by Mr Stitt, QC for the opponent or, one might add, by stepping sideways. It must be remembered that the events took place with around two seconds from the time the claimant first sighted the slow moving vehicle moving at 5 kph and his being struck by the car, during which sequence of events he needed to get off his bike and remove his helmet. The claimant was an elderly man. He may well have had insufficient time to work out what evasive action he should take or may have thought that an evasive move was unnecessary because the driver would eventually see him. If the opponent had kept a proper look out there would have been nothing for an evasive move to achieve. 64 At no point did the cross-examiner attempt to ascertain whether the claimant, whose English was such that he answered questions through his daughter as tutor, appreciated the difference between what he knew at the time of the accident and what he worked out afterwards by ex post facto reconstruction. Clearly enough in the events that happened the driver did not see the claimant and was looking to the right. But could one reliably conclude, in circumstance where the onus is on the defendant to establish contributory negligence, that Mr Pham, acting prudently in his own behalf, should have (a) moved in the seconds available to him away from the oncoming car, and (b) appreciated that if he did not do so the collision would occur? No questions were asked which precisely established either proposition. Even if the reason for this reticence was the cross-examiner's inhibition due to the non-availability of his client, nonetheless I am comfortably satisfied that no contributory negligence on the part of the claimant was ever established. 65 While extrapolation from the facts of one case to another in negligence is notoriously unreliable, nonetheless the general observations made by the majority in Anikin v Sierra (2004) 211 ALR 621 at 46 are apposite: [46] This was not, therefore, a case like Luxton v Vines 54 where the possibilities were equally open and neither could be said to be more likely. Nor was it a case like Derrick v Cheung 55 where the defendant came upon the infant victim, emerging from two parked vehicles onto the road in the path of the defendant's vehicle driving within the prescribed speed limit. Here, there was a range of visibility available to the bus driver, a professional motorist, if he were keeping a proper lookout. Most importantly, there was an unimpeded capacity to move the vehicle to the right. Had that been done even at a late stage the serious injury to the appellant would have been avoided. True, the appellant was obliged to keep a proper lookout for his own safety. However, the bus driver, who was in charge of a powerful vehicle had obligations to exercise care for pedestrians in the position of the appellant.56 54 (1952) 85 CLR 352. See also Nominal Defendant v Owens (1978) 22 ALR 128 at 132; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141, cited in Sierra [2003] NSWCA 11; BC200300879 at [12]. 55 (2001) 181 ALR 301 ; 33 MVR 393. 56 Pennington v Norris (1956) 96 CLR 10 at 16-17.

Conclusion 66 I conclude that the opponent as defendant had not satisfied the onus upon him to establish contributory negligence on the part of the claimant in the circumstances. Accordingly, no contribution, whether of 35% or a lesser percentage, was warranted in the circumstances.

Ambit of the conclusionary effect of the certificates given under s61 MACA and whether medical assessments for the claimant were wrongly excluded 67 In an interlocutory judgment of 7 November 2005 the trial judge began by identifying the following preliminary question: "That the certificates issued in this matter by medical assessors and a medical assessor's review panel pursuant to s61(1) of the Motor Accidents Compensation Act 1999 are conclusive evidence in these proceedings of the matters so certified in them, namely (1) the relevant injury sustained has stabilised; (2) the relevant disability or impairment found was caused by the subject accident; and (3) the degree of permanent impairment of the plaintiff was not greater than 10 per cent." 68 The trial judge appears to have accepted in that judgment that the conclusivity of the certificates extended beyond whether the respective injuries had stabilised and whether the degree of impairment was less than 10%. Thus the judgment quotes the summarised elements of the certificate put by senior counsel for the opponent as including the following elements: "(2) They conclusively establish whether the degree of permanent impairment concerning each disability was caused by the subject motor vehicle accident and that the disability results from the injury in that accident.

(3) They conclusively determine the degree of impairment as a result of the injury caused by the motor vehicle accident." 69 I pause to observe that what senior counsel there submitted accorded with Mr Stitt, QC's submission on appeal. 70 The judgment then refers to s58(1)(d) of MACA which provides as follows in relation to Pt 3.4 (of which s61 forms part): "This Part applies to a disagreement between a claimant and insurer about any of the following matters: … (d) the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident …" 71 The judgment then refers to s61(2)(a) which provides as follows: "(2) Any such certificate as to: (a) whether the degree of permanent impairment of the injured person is greater than 10 per cent … is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned." 72 The judgment also makes reference to s61(3) pressed by the claimant which is in the following terms: "Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or any assessment by a claims assessor in respect of the claim concerned." 73 I should for completeness refer to s61(9) which, though not referred to in the judgment, provides as follows: "(9) A certificate is to set out the reasons for any finding of the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence." 74 The interlocutory judgment then concludes as follows: "Importantly here on the question of the causal nexus or connection between the accident and the resultant injury, counsel for the plaintiff said para (a) only dealt with the degree of permanent impairment and not whether such impairment was the result of the injury caused by the motor vehicle accident. On the other hand, senior counsel for the defendant said causation was necessarily to be included as a matter within para (a) because of the corresponding words used in s58(1)(d) where 'permanent impairment' covered by Pt 3.4 is referred to as that 'as a result of the injury caused by the motor accident'. I agree with senior counsel's construction as being that which gives a workable, consistent and harmonious relationship with s61(2)(a) which refers to 'the' degree of permanent impairment. That means, it would follow, that issues of evidence as to causation dealt with in the certificate are, pursuant to s61(2), conclusive. If, then, they are conclusive, it seems to me that the finding sought for the defendant on the present certificates must be successful, and that is so whether the Court is required to assess non-economic loss or economic loss. If it were otherwise, s61 would have to be read down and the conclusive nature of the certificates as to the matters dealt with would be effectively reduced. That cannot be, in my view, the intention of the legislation.

I should refer to s61(3) which was relied upon for the plaintiff to save the position of evidence as to economic loss. However, in that respect the answer to that submission is short - if, as I have found, causation of the permanent impairment is covered by the matters then it is covered for all purposes." 75 This issue became relevant in the subsequent trial. In his later judgment of 2 December 2005 the trial judge went further. The trial judge first concluded that the certificates under MACA necessarily included the accompanying reasons. He admitted the relevant certificates in the present case including the later certificate of the review panel, the latter being the certificate principally relevant. The trial judge then held that the certificates, including reasons, were conclusive evidence as to the degree of permanent impairment of the appellant. He also held that the certificates were conclusive as to the degree of impairment as a result of the injury caused in the motor accident and the nature of the injuries "sustained by the plaintiff in the accident". Thus in the judgment at 38 he concludes: "Accordingly, pursuant to s61(2) of the MAC Act the assessor's certificates, which incorporated the reasons, are conclusive evidence for present purposes that the relevant injuries sustained by the plaintiff in the accident were impairment of the nervous system in the form of delirium and fracture of the right femur giving rise to a permanent impairment of respectively 2 per cent and 5 per cent, a total of 7 per cent. The remaining conditions experienced by the plaintiff of loss of vision, loss of hearing, strokes, Alzheimer's disease or dementia, osteoarthritis of the knees and shoulder, additional cognitive impairment, confusion, occasional urinary incontinence, stomach problems and behavioural and emotional difficulties have no necessary causal connection with the subject accident." 76 The claimant's submissions from Ms Norton, SC were to the effect that the trial judge erred in holding in effect that the disability or impairment found by the MAS doctor was all that could be compensable under the Act including in particular for economic loss. The claimant's submission was that the certificates under MACA were no more than the gateway to damages for non-economic loss under s131, which is in the following terms: "131 Impairment thresholds for award of damages for non-economic loss No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%." 77 There were further consequences from that holding. The trial judge held that evidence contradicting the matters dealt with in the certificates and accompanying reasons was therefore inadmissible for all purposes, including for the purpose of establishing economic loss. On this basis he rejected expert evidence tendered on behalf of the claimant as follows: (a) Dr Paul Teychenne (MFI 2-6); (b) Parts of the Dial-An-Angel report; (c) Dr Griffith, 16/3/2005 (MFI 7); (d) Dr Roy Beran, 25/6/2002 (MFI 8); (e) Roseanna Arena, 6/12/2004 (MFI 9). 78 The trial judge also rejected questions asking family members about the appellant's mental state and his activities; see, for example, T, 8.19 November 2005. 79 Essentially the claimant's submission was that these reports and the oral evidence bore directly upon the question of economic loss. While they were concededly not available to contradict the certificate in relation to non-economic loss, they should not have been treated as conclusionary against any compensation for the economic loss here consisting of domestic care. 80 That left essentially uncontradicted the evidence of Dr Zeman in the form of a report given by him as a rehabilitation expert (Tab 18, Exhibit 19); that is to say uncontradicted by the disallowed evidence that the claimant wished to advance. Thus, for example, the report of Dr Tam dated 9 November 2005 (Tab 17, Exhibit S) was of material relevance for the claimant's case, given that Dr Tam was a consultant physician and geriatrician. It attested that the claimant's subsequent cardio-vascular accident (CVA) requiring admission to Liverpool Hospital on 29 November 2004 was a minor stroke with relatively short length of stay and minimal increase in neurological disability, concluding that it would not have made any impact on Mr Pham's long-term prognosis and burden of care. Moreover, it attested to his need "to be supported at home attended by his family members, with provision of 24 hours domestic and personal care, and supervision of medications and nutritional intake …". 81 None of the medical practitioners were called to give evidence. The claimant was left at a substantial forensic disadvantage by the exclusion of the reports to which I have earlier made reference. They could only have been properly excluded if s61 had conclusionary effect beyond non-economic loss under its threshold in s131 MACA. I come now to that question, upon which turns whether the reports and oral evidence were wrongly excluded. 82 I should first identify the certificate that relevantly applies. It is the certificate described as being "issued under s61(1)" and being "review assessment of the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle accident" (Tab 18, item 1 in the Schedule of Respondent's Exhibits). 83 The certificate is preceded by a description of the process of the review, the available information the subject of the review, the additional information required and, within that, the results of clinical examination and additional clinic records provided. It concludes with material under the heading "Panel Deliberations". This could be said to constitute the reasons for the conclusions reached. It included the paragraph below: "The Panel was satisfied that the motor vehicle accident was a cause, or a significant contributing factor, to the permanent impairment due to delirium that was apparent at the time of Mr Pham's discharge from Braeside Hospital." (at 6) 84 Reference is then made to any later deterioration being "due to other and unrelated factors which would include the subsequent CVA and progressive mixed dementia" (at page 6). 85 Then appears the following; "The Panel confirmed that the subsequent stroke(s), the additional visual impairment, and the mixed dementia were not caused or contributed to by the subject MVA [motor vehicle accident] because there is no clinical information to support this. The sequence of events was consistent with the development of delirium due to the factors listed in this report and subsequent significant deterioration due to the onset of new pathological processes that are not plausibly medically linked with the subject MVA." 86 There then follows (at 7) percentages attributed to what is described as a "Mental Status" impairment of 5% whole person impairment. Reference is made to a subtrochanteric fracture of the right femur resulting in a "2% whole person impairment" (at 7). 87 Then it is stated that "therefore the 5% WPI due to impairment of the nervous system is combined with 2% WPI [whole person impairment] as a result of the subtrochanteric fracture of the right femur to give a total permanent impairment of 7% WPI caused by the subject MVA". 88 All of this precedes the ultimate findings of the certificate itself, the key part of which I quote below: "The findings of this review in relation to injuries that were caused by the motor vehicle accident on 1/02/2002 are as follows:

The following impairments give rise to no permanent impairment. · Right knee injury · Right ankle strain · Neck strain

The following impairments are permanent and are assessed as giving rise to a whole person impairment which, in total, is not greater than ten percent. · Head - brain damage · Subtochanteric fracture - left femur " 89 One may treat this certificate and the accompanying material as supplanting the earlier medical assessments. This is because the review process under s63 MACA essentially has that result and renders s61 applicable to that new certificate. 90 This certificate was required for the purpose of determining whether, within s131 MACA, damages could be awarded for non-economic loss. The certificate was conclusive that the degree of permanent impairment of the injured person was not greater than 10%. I consider that s61(2)(a) can have no other meaning than that the certificate's conclusivity applies only to the bare conclusion that the degree of permanent impairment for that purpose was (or was not) greater than 10%; here that it was not greater than 10%. As Mason P observed in Brown v Lewis [2006] NSWCA 87 at [23] "Section 61(2)(a) only deals with the threshold issue whether the degree of permanent impairment is greater than 10%", having earlier emphasised that "extreme caution is required before anything relevant or useful could be extrapolated from a certificate under s61(2) for the purpose of calculating economic loss" [emphasis added]. 91 I understand the latter reference to be to the degree to which such a certificate can constitute evidence which is not conclusive bearing upon economic loss. I do not take that reference to mean that the certificate has any extended conclusivity beyond the matters specifically referred to in s61(2). 92 Moreover, as Mason P points out in the same paragraph, the way in which s133 requires the calculation of "greater than 10%" to be made, based on MAA Medical Guidelines and the American Medical Association's "Guides to the Evaluation of Permanent Impairment", means that it "does not concern itself with the economic consequences of injury, and excludes information (derivative psychiatric or psychological injury, impairment or symptoms; see s133(2)) that may be critically important to assessing economic loss". 93 That very methodology of s133 therefore points to the inappositeness of extrapolating from the matters certified under s61(2) for purposes not related to the s131 non-economic loss threshold; in particular for purposes of determining economic loss to which Pt 5.2 rather Pt 5.3 applies. The structure of MACA reinforces that conclusion. The regime in Pt 5.2 is clearly a separate and distinct regime concerned with economic loss. It operates as a parallel universe to Pt 5.3 dealing with damages for non-economic loss. 94 What I have said earlier concerning s61(2) applies a fortiori to what s61(3) refers to as "any other matter". The latter is expressed to be "evidence" but "not conclusive evidence" as to the matters certified in any court proceedings. While it is true that s61(9) requires the certificate to set out the reasons for any finding by the medical assessor or assessors, this is only "as to any matter certified in the certificate in respect of which the certificate is conclusive evidence". 95 Relating this to s58, there is no doubt that its provisions have a wider ambit than the strict subject matter of conclusivity set out in s61(2). In particular s51(1)(d) renders Pt 3.4 applicable to a disagreement between a claimant and an insurer about "the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident" [emphasis added]. 96 Mr Stitt, QC for the opponent placed great emphasis on the words "caused by". He contended that this language, with other textual indications, meant that the certificate was conclusive as to what he called the medical aetiology, meaning the medical causation of the relevant "injury". So much can be accepted. But what does not follow is that the certificate, incorporating as it does reasons which may range from surmise to certitude, are thereby rendered conclusive, outside of the strict limits of s61(2). In particular there is no conclusivity extending to a matter outside s61(2) such as that in s58(1)(d) ("the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident"). Rather, matters falling outside s61(2) are simply capable of constituting evidence, but not conclusive evidence, as to the non-s61(2) matters insofar as they are "certified" in terms of s61(3). 97 There is an issue, not needing to be decided here, as to whether that category of non-conclusive evidence can be admitted not only in relation to damages for non-economic loss under Pt 5.3 but also as to damages for economic loss under Pt 5.2. There, the stricture of Mason P earlier quoted becomes relevant. If it be capable of being non-conclusive evidence in the latter category, it must even so be used with extreme caution; that is especially given the very different methodology for assessing degree of impairment under Pt 5.3, to which the certificate is directed. I therefore would not exclude it at the threshold from bearing on Pt 5.2 in relation to economic loss. Rather I would adopt Mason P's "extreme caution"- as to its likely relevance.

Conclusion 98 The review certificate (and the earlier certificates to the extent they remain relevant at all) insofar as certifying to the matters stated in s61(2) is conclusive, but only for the purposes of non-economic loss. It is not conclusive for the purposes of economic loss. The reasons which are incorporated in the certificate may be evidence as to the matters certified, but extreme caution is required in admitting such evidence in relation to damages for economic loss governed by Pt 5.2, having regard to the different methodology of Pt 5.3. 99 It necessarily follows that the claimant's reports and certain oral evidence were wrongly excluded.

Consequences of the earlier conclusions 100 The conclusions of the trial judge to the effect that damages should be reduced by a finding of contributory negligence cannot stand. 101 The conclusions of the trial judge as to non-economic loss were in my opinion vitiated by the incorrect approach to the conclusivity of the review certificate with the consequent exclusion of relevant reports and oral evidence sought to be advanced by the claimant. 102 The appropriate order is for the matter to be remitted to the District Court on the basis that there was no contributory negligence. Damages for economic loss must be re-assessed, with no exclusion of evidence based upon the supposed conclusivity of the review certificate under s61 as applicable to non-economic loss. 103 It also follows that the trial judge's order for costs to be awarded in accordance with liability (65% to 35%) cannot stand. Costs of the proceedings to date should, in my opinion, be awarded to the claimant, both at trial and on appeal. 104 It is no longer necessary to consider the issue which I set out under para (c) at [4] concerning the alleged wrongful admission by the trial judge of certain reports served out of time by the opponent, since they will have been served within time for the new trial. 105 It will be for the new trial to determine the proper scope for allowance for domestic care, bearing in mind the difficulty of taking into account domestic care insofar as it coincided with time in hospital; see Nicholson v Nicholson (1994) 35 NSWLR 308 at 323 per Kirby P.

OVERALL CONCLUSION 106 The claimant should have leave to appeal and in my judgment has succeeded in the appeal. Accordingly I propose orders as follows: (1) Leave to appeal granted. (2) Appeal allowed. (3) The orders made by Hungerford ADCJ to be set aside. (4) The matter to be referred back to the District Court for a re-trial limited to the question of damages for economic loss without any deduction for contributory negligence on the part of the appellant. (5) Respondent to pay the appellant's costs in this Court and the court below and to have a certificate under the Suitors Fund Act if qualified. 107 BRYSON JA: I agree with Santow JA. 108 BRERETON J: I agree with Santow JA. **********

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.

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Parties

Cases Cited (9)

Cited By (30)