Damages Threshold - s109(3)(b)
76As to the issue of liability, Mr Ronzani in his written submissions argued "the most likely decision" in any hearing would be a verdict for the defendant and that it was therefore "futile to permit these proceedings to continue."
77On the other hand, Mr Goodrich argued that on the evidence the plaintiff may in fact not only win the proceedings but do so in circumstances where a court would not find that the defendant has established any degree of contributory negligence.
78The meaning of the word "likely" within section 109(3)(b) has been considered by the Court of Appeal on a number of occasions. In Sinclair v Darwich [2010] NSWCA 195 it was held at [36] that this word does not mean "more likely than not" but rather that there is a "real chance" or a "real prospect" that the relevant damages threshold will be exceeded. A similar view was taken in Eades v Gunestepe [2012] NSWCA 204. In that case, Hoeben JA at [36] stated that "the simple meaning of the word "likely" in the context of this Act is that there is a "real chance" or a "real prospect" or that such may well be the situation." His Honour at [37] went on to state that the "structure of the Act...is to assume that the plaintiff will succeed however the court has to assess whether there is a real chance of the verdict exceeding the barrier after considering the reduction for contributory negligence." His Honour also determined that despite the usual general law requirement that contributory negligence is to be raised and proven by the defendant, it is the plaintiff who bears the onus of establishing the "likely" level of contributory negligence.
79In the current matter, at paragraph 4 of her affidavit the plaintiff described the accident occurring as follows:
The accident on 17 March 2009 occurred at approximately 5.30pm. My car was parked in the main street of Temora in a 45-degree angle parking spot. I gad been at work that day and done some shopping afterwards. I went back to my car and backed out from the parking spot onto the roadway. I had my right hand on the steering wheel and my left hand on the gear stick changing from reverse to drive when all of a sudden another car struck me from behind.
80In cross-examination the plaintiff agreed that she told Mr Morgan that "she had reversed out of a 45-degree angle parking space in Hoskins Street and was in the process of changing gears to move forward - that is, she was in the middle of the carriageway - when she was struck from behind."
81On the basis of this statement, it was put to the plaintiff that she at no point told Mr Morgan that she looked before she reversed and she agreed that this was probably the case but went on to state that she "would have told him I looked first before reversing."
82She was then taken to her personal injury claim form in which she wrote, inter alia:
"I was reversing back. I went out and in again three times, even looked at a shopfront window, looked again, looked at a pedestrian crossing which I was parked only four car spaces from it. Checked again and reversed. When I was reversing I was struck on the back of my car a ute.... I told him "I didn't see you." His answer was "I thought you were going to stop!"...... I do believe that I was already on the road when we collided and that he was going too fast for me not to see him..."
83In re-examination she gave the following evidence:
Q. Madam, you mentioned about going, I think, in and out, or words to that effect, out of this parking spot three times. Can you just explain why you were going in and out of this parking spot?
A. Just making sure that it is actually safe for me to reverse back.
Q. So that we can understand step by step, how far were you going in or out of this spot to make sure it was safe?
A. Just enough space for me to actually see the oncoming traffic.
Q. And you did that on each occasion, did you?
A. I do it all the time, because of my height.
HIS HONOUR
Q. How tall are you?
A. Sorry?
Q. How tall are you?
A. I'm not even 5 foot.
GOODRIDGE
Q. And you mentioned looking at a shop window. Was that in addition to checking or was that instead of checking directly with your own eyes down the road without a reflection?
A. I looked - I turned my whole body back, my neck, to look, the oncoming traffic. Then that's when I went in and out.
HIS HONOUR
Q. Why do you go in after you come out?
A. Sorry?
Q. Why do you go back in after you've come out?
A. Because obviously there's actually oncoming traffic coming.
Q. So you reversed out, saw some traffic?
A. Yep.
Q. And, to get out of the way, went back in again?
A. Yep.
Q. And then you reversed out and the same thing happened two or three times?
A. Yes. As stated, there is actually a pedestrian crossing where the accident occurred.
84On the basis of this evidence, whilst it is quite possible that the plaintiff may lose her claim entirely, I do not consider it to be futile. However, even if the defendant after seeing the plaintiff's vehicle reversing decided not to brake as he thought she was going to stop, which I would regard as a breach of duty, the plaintiff's above mentioned method of reversing out of her parking spot far enough to allow her to see if there were any approaching vehicles was fraught with danger. In my view the lowest level of contributory negligence established by the plaintiff as being "likely" as defined above is 60%.
85Accordingly, it would seem to me that in these circumstances to satisfy the provisions of section 109(3)(b), the plaintiff must establish she has a "real chance" or a "real prospect" that her total damages will be assessed at an amount which after a 60% reduction for contributory negligence results in a figure of $97,500. Such figure is $243,750.00.
86As to the quantification of the plaintiff's "likely" damages, she relies upon, inter alia, the assessment made by her present solicitor, Ms Layton, as contained in her affidavit of 3 May last (exhibit B1). In my view, such estimate is an extremely high one and even includes a future out-of-pocket entitlement of well over $300,000. I regard it as of little assistance.
87Whilst the plaintiff does not yet have a binding assessment under MAS entitling her to non-economic loss, I note that in his report of 13 March 2013, Dr Clark assesses her relevant WPI in relation to her psychiatric/psychological injuries flowing from the subject accident at 19%. This assessment clearly breaks the non economic loss threshold of 10%. The only WPI assessment in relation to the plaintiff's physical injury from the subject 2009 accident is that of Dr Reid (exhibit 1) which he assesses at 8%, below the relevant 10% threshold. I note that physical and psychiatric/psychological WPI cannot be added together to achieve a breaking of such threshold. Nevertheless, if the plaintiff's psychiatric/psychological assessment at MAS does break it, which on the unchallenged assessment of Dr Clark, is highly probable, the plaintiff's physical injuries can be taken into account in the common law type assessment of her non economic loss entitlement. Such an assessment has, in my view, a "real chance" of resulting in a figure of $150,000.00 to $200,000.00 sum for non economic loss.
88As to economic loss, Dr Barrett, orthopedic surgeon, in exhibit D finds that as a result of the soft tissue cervical injury the plaintiff received in the subject 2009 accident she "does appear to be partially unfit for work" but "would be capable working as a travel agent without restriction". He also finds that she would be "capable working as a checkout operator however she is unfit for work which involves repeatedly bending will work in cramped spaces."
89There is also a medical report from Dr Davis of the 12 March last annexed to exhibit B1 in which he opines that as a result of the subject 2009 accident the plaintiff "will not be capable of returning to work as a checkout operator at Woolworths and would only be capable of working within restrictions with the opportunity to change postures as required for comfort."
90From a psychiatric perspective, Dr Clark found that the plaintiff was "moderately injured" under the relevant "Descriptor" which is defined to mean that she cannot "work at all in the same position as previously" and that she can "perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different, e.g. less stressful".
91The plaintiff's 2009 notice of assessment reveals a net income of approximately $625 per week. Her 2010 tax records reveal a significant drop in her income. The latest notice of assessment is for the 2011 year in which she earned in her position as a shop assistant with Woolworths a little over $11,000.00 net including a tax refund. In her affidavit, the plaintiff deposes that she has not worked since September 2010 when she "ceased work due to a contribution of my injuries and the birth of my youngest child" but also that she has "ongoing restrictions in my capacity to work due to my injuries." It is not explained in the evidence how, if the plaintiff ceased work in September 2010, she had earned the above mentioned sum in approximately the first 3 months of that financial year.
92Whilst it is very difficult to make an assessment of the plaintiff's "likely" amount for past and future economic loss flowing from the 2009 accident, based on the medical evidence, I find that she has a "real chance" of also achieving a six figure sum for same. She is currently approaching 38 years of age and has another potential 29 years left in the workforce. A loss of just $150npw on the relevant 5% tables (multiplier 809.6) discounted by 15% for contingency produces a figure of some $103,000.00. In making this finding, I also accept that her economic loss could be assessed at a much lesser figure.
93On the basis of all this material, whilst there would undoubtedly be a considerable dispute as to the plaintiff's damages at any hearing, she would nevertheless, in my view, seem to have a "real chance" or "real prospect" of exceeding the relevant figure of $243,750.00. In reaching this conclusion I have also not had regard to any claim for, inter alia, domestic assistance.