On 3 June 2011, the Plaintiff saw a general practitioner, Dr Kooke, who referred her to Dr Mulford, orthopaedic surgeon. Dr Mulford's report [83] notes a suspected fracture in the right knee and an injury to the left hand. The Plaintiff was referred for an x-ray of her lumbar spine, CT of the left wrist and an MRI of her knee. The results of these investigations are to be found in Exhibit A p 35-36, being a report of Dr Cuganesan from Spectrum Medical Imaging, dated 23 June 2011. It is not clear whether the reference in that report to an MRI of the left knee was a mistake.
On 24 June 2011, the Plaintiff saw Dr Mulford [84] who continued non-operative treatment. He noted that the Plaintiff had a wrist brace and began a physiotherapy program. The Plaintiff continued to see Dr Mulford on 16 July 2011, 16 August 2011 and 18 October 2011. On the latter occasion he noted:-
"On 18 October I reviewed Rachel. She had remarked on an improvement, her right knee was now using only an intermittent brace but was off all crutches and mobilising fairly freely. She had a good range of motion of the knee and was stable.
In regards to her left hand, she was getting intermittent pain, however, she was almost out of her splint and was only taking simple analgesic. She still gets pain when she changes gears, undoing lids and weight bearing with shopping bags.
Clinically, on examination, she had a good range of motion of the hand. She had no tenderness of the CMC articulation but had some intermittent pain around the metacarpophelangeal joint of the little finger.
She is still experiencing lower back pain and pain around the pelvis but this has been improving with her physiotherapy program. I have recommended that she continue with her physiotherapy program and I was happy to discharge her from my care at that stage."
The Plaintiff also saw Dr Peckham, clinical psychologist, who she had previously seen for assistance for the management of her daughters and coaching around career and study choices. Dr Peckham's report, dated 7 November 2012, [85] states that, as there was a therapeutic connection, the Plaintiff wanted to return to clinical visits with her after the accident. The report describes the Plaintiff suffering from post-trauma symptoms such as social withdrawal, hyper vigilance and flash backs of the accident, both visually and auditory. Initially, the Plaintiff was provided with home visits as she avoided leaving home. Dr Peckham noted that the Plaintiff presented with feelings of grief and loss. She was diagnosed with Post Traumatic Stress Disorder with a depressed mood in accordance with DSM IV. She was provided with cognitive behaviour therapy and exposure therapy to assist her with facing daily tasks that she was avoiding due to the accident. It was noted that she was prescribed Zoloft.
On 8 August 2013, the Plaintiff came to see Dr Peter Lam, orthopaedic surgeon. [86] Dr Lam noted a history of left ankle pain during rehabilitation associated with left ankle instability, there was noted to be worse pain when walking, especially on stairs and on uneven ground and this was also associated with ankle swelling. It was noted that the Plaintiff was walking with a stick at the time as a result of her instability. The Plaintiff found strapping helpful in aiding her ankle instability and had a pair of orthotics to help reduce her lateral ankle pain. Dr Lam noted that an MRI on the left ankle and foot of 20 June 2013 showed evidence prior lateral ligament injury with deficiency of the lateral ligament complex. Dr Lam also noted that the Plaintiff would require a left ankle arthroscopy to address her ankle pain and lateral ligament reconstruction to reduce her ongoing instability.
An arthroscopy and left lateral ligament reconstruction was performed on 7 November 2013 at North Shore Private Hospital. The clinical notes recorded that the Plaintiff remained there overnight. [87]
The Plaintiff commenced physiotherapy on 11 December 2013. It was noted at discharge from hospital that she was to have subcutaneous Clexane injections for 2 weeks.
On 23 December 2013, the Plaintiff fractured her right fourth toe as she stubbed her toes on a wall after tripping in a CAM boot. She continued physiotherapy into 2014, consisting of soft tissue release, joint mobilisation, stretching, ankle range of motion exercises, regular icing and a progressive strengthening and proprioceptive exercise program. [88]
On 12 May 2014, the Plaintiff was reviewed by Dr Bradley Seeto, orthopaedic surgeon, who arranged an up-to-date MRI to assess the degree of degeneration which had occurred, post traumatically in the lateral compartment of the Plaintiff's knee, noting that the Plaintiff had symptoms of patello-femeral degeneration. This was carried out on 21 May 2014 by Dr Robertson. [89]
Dr Seeto reported on 14 May 2014 that if the Plaintiff felt that her symptoms had failed non-operative treatment, then she would require a total knee replacement. The Plaintiff was asked to represent if her symptoms warranted undergoing surgery.
The Plaintiff was also seen by a number of medico-legal experts, Dr Barold, [90] Dr Akkerman, [91] Dr McClure, [92] Dr Giblin [93] and Dr Harvey. [94]
The Plaintiff was also assessed by the Motor Accidents Authority Medical Assessment Service on 22 May 2013 by assessor William Bye. His certificate, dated 29 May 2013, was in evidence. [95] It certified that the Plaintiff did not meet the non-economic loss threshold. A further assessment was undertaken in relation to psychological injuries by Dr Jones of the Motor Accidents Authority Medical Assessment Service on 7 May 2013. This certificate is dated 31 May 2013. [96] The impairment certified in this certificate also fell below the non-economic loss threshold.
The Plaintiff was not in employment at the time of the accident and does not pursue any claim in relation to non-economic loss. The damages claim is confined to past and future out of pocket expenses and past and future domestic assistance.
[2]
Past Out of Pocket Expenses
From Exhibit B, I was advised that past out of pocket expenses were agreed as being outstanding in the sum of $10,464.80, noting that the Defendant's insurer had made a payment of $7,714.09 pursuant to s 83 of the 1999 Act. This makes an amount of out of pocket expenses of $18,178.89 in relation to which the Defendant has a credit of $7,714.09. There is a dispute over the sum of $3,166.00 for disputed therapy. I was informed by the Defendant's counsel that the dispute was in respect of chiropractic treatment that the Defendant disputed based on Dr Harvey's report. [97]
The Defendant's written submission at [92] rests on Dr Harvey seeing no need for ongoing physiotherapy, chiropractic or acupuncture treatment.
In Exhibit A p 217, assessor Bye noted:-
"…periodically undergoes chiropractic when she can afford this. The chiropractic is aimed at the general facilitation of walking, advice about weight and strengthening exercises."
Dr Barold, in his report dated 10 November 2011, [98] referred to a need for a gym program focused on neck mobilisation and right quadriceps strengthening exercises.
A number of sessions for physiotherapy were on referral from Dr Kooke to the Balmain Sports Medicine Centre. These services were noted at the time of the Plaintiff's seeing Dr Mulford as improving the Plaintiff's pain. [99] Furthermore, Dr Mulford recommended that the Plaintiff continue her physiotherapy program. [100]
Dr Kooke, in his report of 12 November 2011, [101] noted that the Plaintiff's level of mobility improved significantly over the previous five months to the point where she no longer needed to take analgesic medication or use aids for mobility. However, since cessation of the physiotherapy she has had a marked deterioration with symptoms in both right knee and hand.
The Plaintiff's evidence was that, originally, the NRMA had paid for the physiotherapy but later had denied liability. [102] The Plaintiff stated that she attended chiropractic treatment mainly once a week on average. She stated that it was giving her some relief. She stated that she believed that it would be a long process because there was a lot of physical correction that would need to happen. Her evidence in this respect was unchallenged. As was her claim that she changed from physiotherapy to chiropractic because she was not getting the relief she needed from physiotherapy. [103]
On balance, I am satisfied that the claim for past therapy is reasonable and I allow the disputed amount of $3,166.00.
[3]
Future Out Of Pocket Expenses
The Plaintiff's evidence was that she takes Zoloft, Norspan patches and Panadeine Forte. There was some imprecision in her accounting of the expenditure on medication, so far as I can gather it was between $30 and $100 or more per month. [104] On this basis, the Plaintiff claims $25 per week which, on a multiplier of 917.5, totals $22,937.00. The Defendant disputes this, relying on Dr Harvey's report who did not recommend opioid analgesia but recommended Panadol and use of NSAIDs.
Dr Giblin, in his report dated 27 February 2012, [105] stated that the Plaintiff's medical costs would be somewhat similar to those expended over the last 12 months on a pro rata basis and required for a further 12 months. Dr Barold, in his report dated 10 November 2011, [106] said that medication over the next 6 months would be for analgesia, anti-inflammatory agents and anti-depressants and would best be estimated at a cost of $600.00.
There is imprecision in the evidence, including as to the cost claimed. Notwithstanding Dr Harvey's views, I am satisfied that the bulk of what the Plaintiff is using is reasonable and necessary. It is clear that prescribed medication is being monitored by her general practitioner. In all, bearing in mind the imprecision, I would allow $20 per week which, on a multiplier of 917.5, totals $18,350.
Based on the Plaintiff's evidence as to the effect of ongoing chiropractic treatment, I am not satisfied that it is reasonable and necessary. The Plaintiff's evidence as to the ongoing effectiveness of chiropractic treatment is that it is a long process. The treatment is neither supported by any expert evidence nor is there any report from the chiropractor.
The Plaintiff gave evidence relating to seeing Dr Peckham before the accident. Dr Peckham noted in her report, dated 7 November 2012, that she provided the Plaintiff with cognitive behaviour therapy. [107] The Plaintiff has not had any psychiatric treatment. The Plaintiff gave an account of her symptoms after the accident as noted earlier. The Plaintiff stated that she continues to see Dr Peckham every 1 to 2 months and there has been some improvement in her condition. She described an ongoing fear of walking, hearing the noise of the collision, frustration in her inability to do things and interference in her social life.
Dr Akkerman, who reported on the Plaintiff on 3 February 2012, [108] noted that the Plaintiff's condition was stable but thought that the Plaintiff could benefit from seeing a psychiatrist and taking anti-depressant medication. The treatment would be fortnightly to monthly for about two years. This was not pursued, although the Plaintiff continues to take Zoloft, prescribed by her general practitioner. Dr Akkerman diagnosed Post Traumatic Stress Disorder.
Dr McClure saw the Plaintiff on behalf of the Defendant and reported on 12 June 2012. [109] Dr McClure diagnosed a chronic adjustment disorder with mixed anxiety and depressed moods. He noted that the Plaintiff had twenty occasions of psychological treatment and recommended ten further sessions of formal cognitive behaviour therapy. He also recommended that the Plaintiff's anti-depressants should be increased in dosage or ceased in favour of a more potent agent. He stated that Dr Akkerman's treatment suggestion was unspecified but the Plaintiff's adjustment disorder was more likely than not to have reached a stage of maximal medical improvement.
Dr Jones' medical assessment of the Plaintiff took place on 7 May 2013, when he issued the certificate previously referred to. He noted that the Plaintiff had not seen Dr Peckham for two months and that the Plaintiff had seen her infrequently. He proposed no further treatment at that moment. His diagnosis on assessment was consistent with Dr McClure's in finding a chronic adjustment disorder with mixed anxiety and depressed moods.
Overall I am not satisfied that the evidence supports the claim for further sessions with Dr Peckham as reasonable and necessary. There is no up to date information which details what treatment is being provided and the benefit to the Plaintiff continuing so long after the accident. I am persuaded in this view by the report of Dr McClure which places a finite limit on the therapy to be provided.
The Plaintiff claims four visits per annum to see her general practitioner. Her evidence supports the continued use of anti-depressants which was now prescribed by Dr Novotny. [110] I would allow four visits per annum at $65 each, being $5 per week based on the multiplier of 917.5 this comes to an amount of $4,587.50.
Both Dr Seeto and Dr Harvey can see that the Plaintiff may require a total knee replacement in the future. Dr Harvey assesses the current cost at $32,000.00. At Exhibit A p 207, however, Dr Harvey states that the joint services of the lateral libial condyl are so well preserved at the present time as to make it a possibility rather than a probability. Dr Seeto, however, in his report of 14 May 2014, states:-
"There has been significant worsening of the arthirtis in the retropatella surface. There was marked chondrol loss and subchondrol cystic formation."
In my view, based on Dr Seeto's report, I do not find the prospect of a knee replacement as a possibility but rather something likely to occur into the future, and I assess the prospect at 85%. On this basis, I would set the Plaintiff's submission of a deferral of 10 years, based on the amount of $32,000.00 multiplied by 0.614, the amount in present day terms is $19,640.00, in respect of which 85 % is $16,694. Accordingly, the summary for future out of pocket expenses totals $39,631.50.
[4]
Past Domestic Care
The Plaintiff claims past domestic care based on her evidence which I accept that she had 18 months of gratuitous assistance for 10 hours per week. That assistance meets the threshold pursuant to s 141B of the 1999 Act, and I would allow 18 months until approximately 6 November 2012 at the submitted rate of $26 per hour, being in accordance with s 141B. This totals in the amount of $20,280.00.
Thereafter the amount of domestic assistance fell below the s 141B(3) threshold. From the time that the Plaintiff went to the North Shore Private Hospital to February/March 2012, the Plaintiff's evidence was that she again had ten hours of domestic assistance per week. This period corresponds with 7 November 2013 to February/March 2014. Although the Plaintiff's next period of claim for domestic assistance is less than 6 months, I consider it reasonable on the evidence to equate this to 14 weeks. The Defendant disputes any entitlement during this period based on Hill v Forrester. [111] The Defendant's submission does not cite what part of the judgment supports its submission. The majority view is that of Tobias JA and Sackville AJA. Tobias JA agreed with the view of Sackville AJA, expressed at [100]-[103], that the duration requirement needs only to be satisfied once so that damages may be awarded for periods of less than six consecutive months, both before and after the duration requirement is met. On this basis, the Defendant's submission is rejected. Although the legislation under consideration in Hill v Forrester concerned an analogous provision, [112] neither party suggested that the decision was not applicable in relation to the similarly worded s 141B (3) of the 1999 Act. I accept the Plaintiff's claim at $27.72 pursuant to s 141B and allow an amount in relation to this second period in the amount of $3,895.00. this makes the total past domestic care damages $24,175.00.
The parties both accept that past paid cleaning services should be allowed in the sum of $10,000.00 and I allow it.
[5]
Future Domestic care
For the future, the Plaintiff's evidence was that she paid a cleaner approximately $100 per fortnight. Although the Plaintiff claimed that if she could afford it, she would have the cleaner come more regularly, it is not clear what additional requirements are left unfulfilled by the current arrangement. Dr Harvey considered 1 to 2 hours of domestic assistance indefinitely as a consequence of the accident. There is a history that the cleaner at that stage was coming for two hours per week whereas the evidence was sometimes weekly and sometimes fortnightly. Overall I accept on the Plaintiff's unchallenged evidence and consistent with Dr Harvey's opinion an average of 1.5 hours per week, being an amount of $75. Although greater hours were supported by Dr Barold in his report of 10 November 2011, these were not supported by the Plaintiff's evidence. Allowing $75 per week, on a multiplier of 917.5, makes a total future allowance of $68,812.50.
[6]
CONCLUSIONS AND ORDERS
Accordingly, the damages in summary are as follows:
1. Past out of pocket expenses (agreed including amount paid by insurer): $18,178.89;
2. Past out of pocket expenses (in dispute but allowed): $3,166.00;
3. Future out of pocket expenses: $39, 631.50;
4. Past domestic assistance: $24,175.00;
5. Past cleaning: $10,000.00; and
6. Future domestic assistance: $68,812.50.
This makes a total award of $163,963.89 less 30% for contributory negligence being an amount of $114,774.72
Pursuant to s 83 (5) of the 1999 Act the Defendant has a defence to the extent of $7,714.09 in respect of payments made.
Accordingly there will be a verdict and judgment for the Plaintiff in an amount of $107,061.00 (rounded off).
The Defendant is to pay the Plaintiff's costs.
Liberty is granted to relist the matter within 14 days upon 48 hours' notice for the hearing of any further application as to costs.
The exhibits are to be retained for 28 days.
[7]
Endnotes
hereinafter '1999 Act'
T 26.4
T 26.10
T 61.40
T 61.50
T 68.22
T 67.39
T 67.45
T 68.10
T 68.22-.33
Exhibit A, p 252
Exhibit A, p 29
T 67.40
T 67.45
T 66.20
T 67.5-.10
See T 66.25-67.4
T 64.33
hereinafter the '1995 Act'. See also T 47.40-48.10.
T 14.15-.25
T 42.28
T 43.34
T 41.31-43.35
T 11.40
T 11.46
T 12.15
T 12.35
T 12.7
T 12.50-13.5
T 13.14
T 13.25
T 13.28
T 23.26
T 23.35
T 23.40-.45
T 25.37-.43
T 26.30-.50
T 45.2
T 45.11
T 51.5
T 52.40
T 53.49
T 60.7
T 64.33
T64.40
T 65.12
T 65.25
T 66.32
T 66.38
T 67.1
T 67.3
T 67.5-.22
T 69.45
T 70.45
T 71.17
T 72.4-.25,
T 66.32
T 66.39
T 64.33
T 64.38
T 69.5
T 70.45
T 73.13
[5] Amended Statement of Claim
Exhibit C
Exhibit A, p 253
Exhibit A, p 29
Exhibit B
T 67.8
T 60.10-.18
T 25.34
T 25.44
T 18.30-19.1
T 19.2
T 88.20-.40
T 83.15-.25
Exhibit A p 109
T 47.40-48.10
Exhibit A p 93
Hereinafter the '2002 Act'
T 70.45
See [58]-[59]
Exhibit A p 107
Exhibit A p 109
Exhibit A p 127
Exhibit A p 132
Exhibit A p 133-188
Exhibit A p 189
Exhibit A p 197
Exhibit A pp 93-106
Exhibit A pp 111-117
Exhibit 1
Exhibit A pp 118-125
Exhibit A pp 200-210
Exhibit A pp 212-230
Exhibit A pp 237-259
T 77.20
Exhibit A p 101
Exhibit A p 110
Exhibit A p 110
Exhibit A p 108
T 36.20
T 35.30
T 35.35-.46
Exhibit A p 123
Exhibit A p 101
Exhibit A p 129
Exhibit A p 111
Exhibit 1
T 34.42
(2010) 79 NSWLR 470
s 15(3) Civil Liability Act 2002
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: 08 May 2015
The obligations of drivers in such circumstances were recently restated in Warth v Lafsky [2014] NSWCA 94 by McColl JA (with whom Preston CJ of the LEC and Tobias AJA agreed) where Her Honour said at [55]-[56]:-
"55. The principles concerning the duty of care a driver owes to other road users, and those germane to breach of duty by reference to s 5B of the Civil Liability Act, were recently summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner [2013] NSWCA 396 as follows:
'[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.
[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 - 48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).
[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'. That in turn requires 'simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path'.
[36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.'
56. Notwithstanding the conclusion in Derrick v Cheung [2001] HCA 48; 181 ALR 301, it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines: Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 (at 418) per Mahoney P; Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 (at [16] - [17]) per Emmett JA (Ward and Gleeson JJA agreeing). A greater standard of care is required of motorists when young children are in the vicinity of a road, or reasonably expected to be in the vicinity: Gunning v Fellows (1997) 25 MVR 97 (at 98) per Beazley JA (with whom Mason P and Cole JA agreed); Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 (at [87]) per McColl JA (Macfarlan JA agreeing). Motorists should "exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections": Turkmani v Visvalingam [2009] NSWCA 211; (2009) 53 MVR 176 (at [28]) per Hodgson JA (Beazley and McColl JJA agreeing)."
I accept the risk of harm for the purposes of s 5B (1) of the Civil Liability 2002 [80] was the risk of the Plaintiff being stuck by a motor vehicle upon entering the roadway. I am satisfied on the evidence that, consistent with the aforementioned authorities, had the driver kept a proper lookout she would have seen the Plaintiff standing behind her vehicle at a distance of at least 45 metres striding out towards the centre of the carriageway and could have taken the steps of applying the brakes fully to stop the vehicle or steering away to the side, bearing in mind there were no vehicles coming in the opposite direction and there were no vehicles parked, according to the Defendant's own evidence [81] . In my view, breach of duty of care was clearly established in that the risk was foreseeable, not insignificant and a reasonable driver in the Defendant's position would have taken those precautions (bearing in mind the factors in s 5B (2) of the 2002 Act). Having regard to the principles in s 5D of the 2002 Act, I am satisfied that causation has been established. It follows I do not need to consider the application of the blameless accident provisions in Part 1.2, Division 1 of the 1999 Act.
CONTRIBUTORY NEGLIGENCE
The Defendant pleads contributory negligence although its submissions were at [77] of its written submissions and at T86.20- 88.48 were largely made in the context of a blameless accident.
In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34, Gibb CJ, Mason, Wilson, Brennan and Deane JJ said, in relation to the apportionment of liability, at [8]:-
"A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v. Macgregor (Owners) (1943) AC 197, at p 201. Such a finding, if made by a judge, is not lightly reviewed."
In [38] of the Plaintiff's written submissions, the Plaintiff's counsel, after referring to Podrebersek stated:-
"However, consistent with Pennington v Norris and cases which have followed it, the Plaintiff respectfully submits that this approach should be tempered in favour of the Plaintiff, given the propensity of Motor Vehicles to cause severe injury to pedestrians."
This was the contention which the Plaintiff did not pursue in oral argument in light of the Defendant's submission that it was contrary to the decision in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139. In that case, Basten JA considered the application of s 5R of the 2002 Act which applies by reason of s 138(2) of the 1999 Act. His Honour questioned whether s 5R overrode the comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760 at [762]-[763]. At [99]-[100] Basten JA stated:-
"Assuming that the requirement that people should take responsibility for their own lives and safety is now reflected in s 5R, and was intended to override the approach of Murphy J in Watt, there is a question as to whether the statements in Talbot-Butt still reflect the law in this State. The potential dangerousness of heavy machinery and fast vehicles can no doubt be applied universally, although the consequence of its application will vary depending on whether one, both or neither party is in control of such a vehicle. On the other hand, applying the general principles in s 5B(2) one could approach the matter differently. Thus, the probability that harm would occur if care were not taken and the likely seriousness of the harm would operate differentially with respect to the driver of the forklift and the pedestrian, but with the same result. That is, no distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally.
A purposive approach to the operation of s 5R (and s 5B) requires that this approach be adopted. To approach the matter in this way is not to decline to follow applicable earlier authority of this Court. Talbot-Butt long pre-dated the Civil Liability Act; it also pre-dated s 74 of the Motor Accidents Act, the forebear of s 138 of the Motor Accidents Compensation Act."
Emmett JA agreed with the reasons of Basten JA. McColl JA took a different approach stating that s 5R in so far as it picks up s 5B of the 2002 Act reflects the common law proposition concerning contributory negligence as explained by McHugh J in Joslyn v Berryman [2003] HCA 34. [82]
Basten JA further considered the matter in Gordon v Troung [2014] NSWCA 97 where His Honour reiterated the views expressed in Boral Bricks Pty Ltd v Cosmitis (No 2).
In Nominal Defendant v Ross [2014] NSWCA 212, Hoeben JA reiterated the relevant paragraphs from Basten JA's judgment from Gordon v Truong stating, at [45]-[48], as follows:-
"45. The exercise of the discretion was considered by Basten JA in a similar factual context in Gordon v Truong; Truong v Gordon [2014] NSWCA 97 at [13] where his Honour said:
"Relevant principles
13 The assessment of contributory negligence is to be conducted in accordance with the requirements of s 138 of the Motor Accidents Compensation Act 1999 (NSW). This provision, relevantly, adopts two principles. The first is that "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": s 138(3). That language reflects the standard applied by the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1).
14 Secondly, the Motor Accidents Compensation Act requires that the "common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section": s 138(1). The reference to the common law may be put to one side: apportionment of liability on account of contributory negligence is a creature of statute in this jurisdiction. Importantly, however, the "enacted law as to contributory negligence" picks up Divs 2 and 8 of Pt 1A of the Civil Liability Act 2002 (NSW) which expressly apply to motor accidents: s 3B(2)(a). Division 8 includes s 5R which is in the following terms:
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 contributory 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.
15 The principles applicable in determining whether a person has been negligent include the "General principles" set out in s 5B. Applying these principles as required by the statute is not without its difficulties. Where the plaintiff and defendant are both drivers in control of similar vehicles, questions of negligence and contributory negligence can readily be assessed according to the same broad standards. However, where the plaintiff is a pedestrian and the defendant a driver of a vehicle, the negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is, generally, to be assessed against a risk of harm to him - or herself. (It is possible that the carelessness of a pedestrian may create a risk of harm to other drivers, for example, if a car is forced to swerve to avoid a pedestrian, but that is not this case.) The harm which the motor vehicle is likely to cause to the pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind.
16 The purpose of s 5R may be gleaned from the recommendations in the Review of the Law of Negligence: Final Report (September 2002) which are, in this case, reflected in the statute. At par 8.7, the Report stated:
"Should the law allow people to take less care for their own safety than it requires others to take for their safety? ... Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?"
17 The Report then stated at par 8.11:
"Leading text book writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same. There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendants. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel's view, this approach should not be supported."
18 The penultimate sentence was supported by reference to three judgments in the High Court and two in the South Australian Supreme Court. The comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760 at 762-763, are in point. Referring to the South Australian equivalent of the 1965 Act, s 9(1)(b), Murphy J stated:
"The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision. ... For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision."
19 The application of the principles in the present case is complicated by the fact that, the appellant having admitted liability, there was no proper consideration of the nature of his breach of duty. Counsel for the plaintiff submitted that such a consideration was unnecessary given the concession: however, that is not correct. If a defence of contributory negligence requires an apportionment of liability based upon the responsibility of each for the accident, the comparative exercise cannot be adequately carried out unless the degree of responsibility of the driver is assessed. On the other hand, what the plaintiff could fairly submit was that because the proof of contributory negligence lay with the driver, who had an interest diminishing the degree of his responsibility, to the extent that he did not undertake that task, he could not be heard to complain if the assessment of contributory negligence was less than it should have been.
20 Apart from the mistake in relation to the traffic lights, the responsibilities of each for the accident fell within a similar range. Thus, each should have seen the other in ample time to take evasive action. It might have been arguable that the negligence of the plaintiff was greater because it should have been easier to see a large van approaching than for the driver to see a pedestrian against a background of parked cars. On the other hand, the driver's evidence did not allow much room for leniency: the proper inference was that he was simply not looking.
21 In terms of possible responses, the culpability of the driver was probably greater. If he had seen the plaintiff in reasonable time, he could either have slowed down or changed lanes so as to leave ample room to avoid the plaintiff. The options open to a pedestrian may be more limited."
46. While it may be said that the negligence on the part of the respondent and the driver of the minibus was of a similar kind, i.e. neither kept a proper lookout, other considerations are also relevant. A failure by a pedestrian to keep a proper lookout might result in injury to himself. A failure by a driver of a large vehicle, such as a minibus, might result in not only injury to himself, but serious injury or death to an innocent party. In that regard, moral culpability weighs more heavily against a driver than against a pedestrian, even though their actions may, to a similar degree, have contributed to the accident. That has been the approach traditionally adopted by the courts.
47. In Pennington v Norris [1956] HCA 26; 96 CLR 10 the court (Dixon CJ, Webb, Fullagar and Kitto JJ) made similar observations at p16 in an analogous case. There both the driver and the pedestrian failed to keep a proper lookout but the driver was travelling at an excessive speed:
"15 Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiff's conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration. The defendant's position was entirely different. The learned judge found only that he was negligent in not keeping a proper look-out, but there were several other important elements in the case, as Mr Wright pointed out. We think, indeed, that the equal allocation of responsibility by his Honour must have proceeded from an overlooking of these elements. The first matter is his speed. It could not on the evidence have been found to be less than thirty miles per hour. Again, there was a large number of people in the vicinity ... It was a misty night, and the road was wet. Visibility must have been impaired by these factors, and it was further impaired by mistiness on the inside and outside of the windscreen. To drive at thirty miles per hour in a town at night under these circumstances seems to us to have been to do an obviously dangerous thing, and to have amounted to negligence of far greater culpability than anything that can possibly be attributed to the plaintiff.""
In Hawthorne v Hillcoat [2008] NSWCA 340 Hodgson JA (with whom Ipp JA and Gyles AJA agreed) said at [47]:
"... The standard in respect of a driver ... to be able to take reasonable steps to react to events is itself a standard of reasonable skill and care; and although the standard of reasonable skill and care required of drivers is a high standard (because cars are so dangerous, and can so easily cause serious injuries), it is not a standard measured by success or perfection assessed with the wisdom of hindsight. "
Beazley P agreed with the views of Hoeben JA and Meagher JA also agreed on the question of contributory negligence.
Nearly three weeks later, the Court of Appeal handed down its decision in T and X Company Pty Ltd v Chivas [2014] NSWCA 235. In that case Basten JA reiterated the view that he had expressed in earlier cases referred to above, at [53]-[54] he stated:-
"……… difficulties in applying the same legal principles in determining negligence of the defendant and determining whether the injured party was contributorily negligent in failing to take precautions "against the risk of that harm". Secondly, it is not entirely clear whether, by an implication from the statement in s 5R(1) (that the principles applicable in determining negligence also apply in determining contributory negligence), the standard of care identified in s 5R(2) in relation to the injured person is that which applies to the person causing the injury: cf D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, Law Book Co, 2013) at 247.
The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety. It appears to have been this factor, however, which led the trial judge to place a greater share of responsibility on the driver than the pedestrian."
Barrett JA agreed with Basten JA. Beazley P, who had agreed with Hoeben JA in Nominal Defendant v Ross (supra), dissented, after referring to cases as to the damage that a motor vehicle may do to a pedestrian. Her Honour stated at [10]:-
"Those cases were decided prior to the introduction of the Civil Liability Act. Nonetheless, the case law has continued to recognise the relevance of the harm that can be done by a motor vehicle for the purposes of determining breach of duty of care. Thus, in Duggan v Chan [2013] NSWCA 182; 64 MVR 249 Emmett JA (Ward and Gleeson JJA agreeing) observed, at [17]:
"Drivers of motor vehicles, being in charge of frequently lethal machines, are under a duty to drive reasonably in the circumstances in which they find themselves. Such circumstances include the fact that a driver is driving lawfully by obeying green lights and travelling within the limit proscribed by the law. On the other hand, other circumstances may need to be taken into account as well: Tsuji v Metromix Pty Ltd [1998] NSWSC 691; (1998) 28 MVR 401 at 403-4. Thus, a motorist may have some reason, because of the surrounding circumstances, to be aware that pedestrians are likely to behave carelessly ... A motorist must always be conscious of the fact that a pedestrian may do something silly and must adjust his or her driving to account for that possibility.""
In Zheng v Wallace (2015) 69 MVR 301, Price J followed T and X Company Pty Ltd (supra). His Honour also followed Town of Port Headland v Hodder (2012) 43 WAR 383 in holding that what a reasonable person would have done for the purposes of s 5B (1)(c) of the 2002 Act involved the application of an objective standard. I accept that T and X Company Pty Ltd (supra) correctly states the current position to be followed on contributory negligence.
In this instance the Plaintiff clearly saw the Defendant's vehicle but anticipated that the Defendant would have sufficient time to stop. Her concentration was on the safety of the dog although she looked and observed the presence of the Defendant's vehicle. She was confronted with a dynamic situation. She placed herself in a position which was hazardous and her safety depended on the Defendant keeping a proper lookout and noticing her presence accentuated by a hand signal. Any potential of withdrawing from its path diminished with time and to the extent she did not do so failed to have regard to her own safety. The Defendant did not see the Plaintiff at any time prior to the collision. For a short part of the time her vision may have been more limited, in part, by parked vehicles, however, it is clear from her evidence that her attention was focussed on the movement of the dog, even after it was no longer in her path. The Defendant clearly did not keep a proper lookout, not seeing the Plaintiff until colliding. She had the means and time to avoid the collision. I am satisfied that her view was not impeded by either the lighting or the Plaintiff's dress. She was aware that Turner Street was a residential street and at the time pedestrians may be present. Overall I would assess the Plaintiff's contributory negligence at 30%.