Radojka Backo v Kris Akhurst

District Court of NSW|2015-03-10

Judgment

The Plaintiff brings proceedings for personal injury damages arising out of a motor accident which occurred on 27 July 2011.
The Plaintiff stated that she left her home at about 9am and was walking to Coles supermarket in Dee Why. At the time of the accident the Plaintiff resided at a unit located at 18 The Kingsway, Dee Why. The evidence was that this roadway led to form a T-intersection with Pittwater Road which was the main arterial roadway. The latter road had three lanes of traffic heading north towards Mona Vale and three heading south towards the city. The Plaintiff's evidence was that it was her intention to walk along Dee Why Parade as there was an entrance at that roadway.
When the Plaintiff reached the intersection with Dee Why Parade, she stated that there was a green light for pedestrians. Her evidence was that the three lanes heading north towards Mona Vale were empty. She noticed that in the opposite direction heading south, the traffic was backed up. She proceeded to cross the road, noticed the light was flashing red during her journey. She claimed that she stopped in the middle of the road on a concrete median strip. According to her evidence the traffic was covering the pedestrian crossing. As the light was still flashing and the vehicles were stopped she proceeded to cross the roadway.
On a photograph which was Exhibit B, the Plaintiff marked the route which she traveled on the southbound lanes of Pittwater Road. She marked with a rectangle the car which she walked around. At the end of the path she traveled, she said she crossed two lanes closest to the median strip with vehicles not moving and that she was travelling at a slower than normal pace. When she reached the lane closest to the curb which was a bus lane, she looked to her left. Since it was clear, she started to cross. [1] She stated that she was in the middle of the last lane when she felt the impact but could not remember even being hit. The Plaintiff stated that she landed a few metres onto the left side, along the curb. She thought that she was facing north but was in a state of shock. She believed that she lost her shoes which someone had later returned to her.

FINDINGS

In weighing the evidence I do not accept that the Plaintiff commenced her crossing of Pittwater Road when the light was green. The statements recorded in Exhibits 1, 3 and 4 were more proximate to the collision and all record the Plaintiff as commencing her crossing when the light was flashing red. I accept the three northbound lanes were clear at the time and may have facilitated the Plaintiff's decision to cross at that time. The Plaintiff did not in my view satisfactorily explain the discrepancy in her evidence before me with the account given in the documents referred to. The flashing red light is consistent with her evidence of rushing across the northbound lanes.
What is not in question is that when the Plaintiff reached the traffic island in the centre of the roadway the lights were not indicating that she should walk. Even on her own version the lights were flashing red at this time. Nevertheless, I accept that the Plaintiff proceeded to walk as the southbound traffic was stationary across the pedestrian crossing and she felt it was safe to do so in the circumstances. Although the Defendant asserted that there was no traffic stationary across the pedestrian crossing I do not accept this as accurate. The Plaintiff was journeying to reach Coles via the back entrance in Dee Why Parade. In these circumstances it appears to me that there would be no logical reason for her walking further southwards along the median strip except to find a suitable location to walk between the stationary vehicles. It follows that I do not accept the Defendant's contention that the Plaintiff walked further along towards the Indian Emporium.
The Defendant's evidence was that she was travelling in the middle lane along Pittwater Road in a southbound direction and was intending to turn left into Howard Street. Her account that she moved into the kerbside bus lane before the intersection with Dee Why Parade was inconsistent with the account provided to the police in Exhibit 6. Bearing in mind her own concession as to her recollection being more accurate when she made her statement to the Police, I am satisfied that she did not merge into the kerbside lane until after she had passed the intersection. In doing so I am satisfied that she entered the bus lane to travel a distance of more than 100 meters from the intersection with Howard Street contrary to rule 154 of the Road Rules 2014.
I am further satisfied that once the Plaintiff had successfully navigated her way around vehicles in the first two southbound lanes she looked before seeking to cross the bus lane to see that there were no vehicles entering. At this point the Plaintiff's evidence was that she was a car length from the pedestrian crossing. It is not in question that she was outside the pedestrian crossing. The Plaintiff's evidence was that the collision occurred outside the medical centre in Pittwater Road and that she fell next to a sign. Certainly this is consistent with the route she marked on Exhibit B and the location of the medical centre shown in Exhibit 7. I accept her evidence on this issue. The Indian Emporium store was further south than the location where the Plaintiff says the accident occurred. I accept the Defendant's evidence that the location where the Defendant stopped her vehicle after the collision was outside the Indian Emporium. I do not accept that this was less than a car length away from the point of collision.
I am satisfied that the Defendant crossed the intersection on a green light, noticed a bank up of traffic and attempted to bypass it by veering onto the kerbside hand bus lane after passing the intersection. I do not accept the Plaintiff's evidence that the pedestrian light was still flashing red at this time. Her evidence was that she was travelling across this section of the roadway at a slower place. According to her own account she stopped to look for vehicles. If it were the case that there was a green traffic light it ordinarily follows that by this stage the pedestrian light would have been solid red. In any event the Plaintiff, having deviated from the pedestrian crossing, may not have noticed it, despite her evidence. Even so, it is clear from the Defendant's own evidence that in entering the kerbside lane she was looking directly ahead and she did not anticipate anyone coming out in front of her. In the circumstances I am satisfied that the point of collision was on the driver's side towards the front as this is consistent with the damage to the Defendant's vehicle [28]

PRINCIPLES

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 Act 2002 (NSW) [29] 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 principles, had the driver kept a proper lookout she would have seen the Plaintiff and could have taken the steps to apply the brakes fully to stop the vehicle rather than maintain the same speed. Clearly she should not have entered the bus lane at the time that she did. Even so, it was incumbent on her to ensure that in making the lane transition that it was safe to do so. As noted above, drivers must take account of careless behaviour by pedestrians. The time of the collision was such that it would have been anticipated that pedestrians were in the vicinity as the Defendant herself acknowledged. The driver may also have anticipated in view of the state of the traffic over the pedestrian crossing that some might bypass the pedestrian crossing by walking through another opening amongst stationary vehicles. In my view, breach of duty of care was 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 to the extent discussed later in these reasons.

CONTRIBUTORY NEGLIGENCE

The Defendant pleads contributory negligence. [30] In considering this question I am required by s 5R of the 2002 Act to turn to consider s 5B (1) referenced s 5B (2). The relevant statutory provisions were recently restated in Verryt v Schoupp [31] by Meagher JA (with whom Gleeson JA and Sackville AJA agreed) where His Honour stated: "The relevant statutory provisions are referred to in my judgment in Davis v Swift [2014] NSWCA 458 at [23] - [26], [28] - [29]: Section 138(1) of the MAC Act provides 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 that section. The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility." The starting point is s 9(1) which provides that if the claimant "suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person" the damages recoverable in respect of the wrong "are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". That description of contributory negligence reflects the common law position that the claimant's lack of care must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21]. The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494 as follows: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage .... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance. Section 138(3) is in different terms to s 9(1) and the other State provisions based on s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (UK). Whereas those provisions require the Court when assessing what is "just and equitable" to have regard "to the claimant's share in the responsibility for the damage", s 138(3) provides: (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. … In a case that does not involve a finding of contributory negligence made under s 138(2) or deemed fault on the part of the owner or driver, an assessment of what is "just and equitable in the circumstances of the case" will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek. See the discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180; 43 MVR 315 at [54] - [63]. In Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [157] Hayne J considered s 74(3) [of the Motor Accidents Act 1988 (NSW), which is in the same terms as s 138(3)] to require the undertaking of such a comparison: cf Kirby J at [133]. Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence."
In T and X Company Pty Ltd v Chivas [2014] NSWCA 235. Basten JA (with whom Barrett JA agreed) reiterated the view that he had expressed in earlier cases [32] in stating at [53]-[54]:- "There are, as I sought to explain in Council of the City of Greater Taree v Wells [2010] NSWCA 147; 174 LGERA 208 at [107]-[108], 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."
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..
The actions of the Plaintiff to cross the roadway outside the crossing notwithstanding the pedestrian light telling her that she should not do so was clearly hazardous and a failure to have regard for her own safety. Her decision to do so was brought about by the presence of stationary traffic and the bus lane. However on my findings it was outside the pedestrian crossing and against the pedestrian light signal. I accept that she looked up the bus lane to see for oncoming traffic and may have anticipated that vehicles entitled to use it would more likely have entered it directly rather than veer into it in circumstances such as those employed by the Defendant. Nevertheless the risk of injury in the circumstances was high as was the likelihood of serious harm. The burden of waiting and not crossing the road was inconsequential and the social utility is not relevant.
The decision of the Defendant to enter the bus lane at a point where she should not have done so, involved a dangerous manoeuvre as her vision of what was immediately in front of her would have been obscured. It was also in the vicinity of pedestrian crossing. There was no evidence of any braking. It was incumbent upon the Defendant to ensure that she kept a proper lookout and her failure to do so led to the collision. The fact that particular conduct is prohibited is a factor pointing to the conclusion that reasonable care was not taken. [33]
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 weighing up the respective failures I accept the bearing in mind the light phases as I have found them the probability of harm was less from the Defendant's perspective (assuming the Plaintiff observed the lights), although the likely seriousness of harm was the same and the burden of taking precautions inconsequential. In my view the greater weight must be given to the Plaintiff's decision to cross the road against a red light and in the face of oncoming traffic. In the circumstances I find the Defendant's negligence contributed to the extent of 45% and, following from that, that the Plaintiff was responsible to the extent of 55%.

PLAINTIFF'S TREATMENT

Following the accident, the Plaintiff was treated at the Dee Why medical centre where she received treatment from Robyn Maiolo. [34] The history obtained was of no pre-accident injuries or illnesses. The Plaintiff's evidence did reveal an injury to her back in 2004 when she was mopping at work and twisted it, but she did not regard it as a major accident or injury. [35] Neither party submitted that any significance should be attached to this event.
Dr Maiolo's examination, referred to in the report dated 10 November 2011, revealed abrasions to the right finger and hand, tenderness of the anterior right shoulder with full range of movement, tenderness over the right hip with no visible bruising, tenderness and some swelling of the right ankle anterior to the lateral malleolus. A diagnosis was given of soft tissue injury. It was recommended that the Plaintiff apply a cold pack to the ankle and shoulder and take some paracetamol.
The Plaintiff at the time was working in catering and was not able to immediately return to work following the accident.
On 2 August 2011, the Plaintiff presented to her general practitioner Dr Kalajdzic. At that time she was complaining of pain to the right side of her body, shoulder, hip and ankle. She was noted to have had a large bruise on her shoulder and a reduced range of movement. There were multiple bruises and grazes on her right hip and skin. Her right ankle was bruised and swollen. It was noted that she was able to walk, though slowly and with a minor limp. A diagnosis of multiple soft tissue injuries was made and pain relieving topical lasonil cream was advised. [36]
Photographs of the Plaintiff's injuries were taken by the Plaintiff's son around the same time as she saw Dr Kalajdzic which was a week after the accident. Those photographs of the Plaintiff's left leg, right arm, left knee, right leg and right ankle, right shoulder and arm were marked Exhibit D in the proceedings. [37]
Thereafter, the Plaintiff returned to work approximately one month after the accident. She was able to continue working under pain relieving medication in tablet and cream form but her evidence was that she was suffering pain, particularly in the back and shoulder. She described her back pain as emanating from the hip and buttock across the waistline on the right side. [38]
The Plaintiff described her duties on returning to work as "light," not requiring her to lift heavy items or push trolleys. She stated that she had difficulty at the end of the week and felt "bad." [39]
The clinical notes reveal that, on 18 October 2011, the Plaintiff returned to see Dr Kaljdzic. [40] Dr Kalajdzic noted that the Plaintiff was still in pain and was disappointed with the slow recovery. The main complaint was ongoing pain and very limited movement in her right shoulder. Her other injuries (ankle, knee and hip) were noted to have been slowly improving with mild residual swelling and pain. It was noted that, clinically, the shoulder had very limited abduction and internal rotation which was suspicious of supraspinatus tendon inflammation or possible partial tear. [41] An ultrasound and x-ray was arranged, revealing bursitis overlying the supraspinatus tendon. [42]
On 20 October 2011, Dr Kalajdzic completed a medical certificate in which he noted the clinical findings as follows:- "Bruising right shoulder, limited range of movement, right ankle swelling/bruising, right hip pain and graze on left elbow." [43]
On 31 October 2011, it appears that Dr Kalajdzic referred the Plaintiff for a guided right shoulder injection. [44] The Plaintiff declined a steroid injection due to needle phobia. [45] She was prescribed Temaze. [46]
On 7 December 2011, the Plaintiff was referred to Dr Jane Campion, physiotherapist, for x-rays of the right hip and left knee. The x-ray from Dr Barter revealed as follows:- "No joint space narrowing or significant abnormality at the right hip." And, "…Normal bone and joint appearance at the left knee." [47]
The referral to Jane Campion noted that the Plaintiff's main problem was with right shoulder pain but also complaining of right hip and knee pain. [48] On 13 January 2012 the Plaintiff was referred to see Dr Stuart Watson by Dr Kalajdzic. It appears that Dr Stuart Watson referred the Plaintiff for an MRI to the pelvis and right hip, this was performed by Dr Lucas on 10 April 2012. It noted:- "Prominent hamstring enthesopathy with partial thickness tearing of the conjoint tendon and peritendonitis. This may account for buttock type pain. No significant gluteal enthesopathy. Supple anterior/superior labral tear without significant condral loss or arthrosis at this stage. No osteonecrosis or bone oedema pattern or stress fracture." [49]
On 17 May 2012, Dr Stuart Watson prepared a report which noted that the Plaintiff had pain and stiffness in her neck, right shoulder, wall pain in the right side of her chest, left knee pain which was mainly anterior and medial, right hip pain, lumbar spine pain and discomfort with walking. In his report, Dr Watson stated as follows:- "The MRIs show evidence of some more overuse type tendonopathy at the attachment of the hamstring. There is some slight effusion in the right hip and there is evidence of some soft tissue swelling and irritation in the trochanteric region consistent with a direct blow but there is no serious damage to the hip joint itself or to the gluteal musculature. There is not a frank trochanteric bursitis, either deep or superficial. The slight anterior superior labral tear looks degenerative rather than acute." [50]
Dr Stuart Watson recommended physiotherapy and hydrotherapy and an assessment from Dr Mark Horan who is referred to as a rehabilitation specialist.
On 14 August 2012, the Plaintiff underwent a CT scan upon referral from Dr Kalajdzic to Dr Duncan, radiologist. That scan was in the range of L2 to the upper sacrum. The report of Dr Duncombe noted:- "There is borderline central canal stenosis at L3/4 secondary to broad-based disc bulging and a small parocentral protrusion. Disc bulging but no focal protrusion at L4/5." [51]
On 21 August 2012, an MRI was performed by Dr Lucas of the cervical and lumbar spine. The report showed:- "Degenerative change in the cervical spine and lumbar spine, degenerative disc and disc bulging but no evidence for any fracture." [52]
On 24 August 2012, the Plaintiff saw Dr Horan at the Delmar Private Hospital Wellness Centre, who noted that the Plaintiff was struggling with walking, stairs, grooming, showering and dressing. He prescribed Endep 25-50mg noct. He referred the Plaintiff to Mona Vale Hospital, at the patient's physiotherapy and occupational therapy services, for treatment of musculoskeletal complaints and to improve overall fitness in the gym, pool and review self-care issues. [53]
On 21 November 2012, the Plaintiff commenced twice weekly physiotherapy at Mona Vale Hospital for four weeks. [54]
On referral from Dr Kalajdzic, the Plaintiff had an MRI of the right shoulder and left knee, performed on 20 December 2012. The report of radiologist Dr Lucas, showed the following in relation to the left knee:- "Medial meniscal tear and medial compartment condral wear. Posteromedial tendonopathy and peritendonitis. Small joint effusion and popliteal cist." [55]
In relation to the right shoulder, Dr Lucas noted his impression as:- "Cuff tendonopathy without a full thickness tear. Minor bursitis. Superior labral tear at the bicep's anchor."
On 23 January 2013, the Plaintiff saw Dr Drew Dixon at the request of her solicitors. His report [56] noted diagnoses as follows:- 1. Direct injury to her right shoulder with post traumatic stiffness with residual biceps tendonitis and supraspinatus tendinosis with a superior labral tear and residual subacromial bursitis. 2. Back strain injury with residual lumbo-sacral facet arthralgia on the right with disc lesions at L3/4 and L4/5 and radicular complaint with right buttock sciatica, sometimes extending down the leg. 3. Contusion to her right hip and bilateral knee injuries with post traumatic retro-patellar crepitus following direct blows. 4. Injury to her left elbow, and soft tissue injury to her right ankle now settled. 5. Impaction of her back strain injuries on her activities of daily living. 6. Reliance on analgesic medication.
On 31 May 2013, the Plaintiff was reported on by Dr Graeme McDougal to whom she was referred by Dr Kalajdzic. [57] Dr McDougal noted that most of the Plaintiff's problems had resolved, however, she had persistent chronic shoulder pain. He recommended an ultra sound guided injection of Celestone and Marcain into the subacromial to be followed by a long period of hydrotherapy at Delmar. He noted that there needed to be a significant behavioural change and adaption from a chronic pain behaviour response to a more normal response which would allow the Plaintiff to overcome her fear of exercising the shoulder.
On 13 June 2013, the Plaintiff underwent an ultra sound guided right shoulder injection. [58] She had earlier declined the injection because she was too anxious. [59] She noted that the injection had not given her any assistance. On 2 July 2013, the Plaintiff underwent hydrotherapy which appeared to her to provide some assistance. [60]
On 22 August 2013, the Plaintiff was seen by Dr Harris, orthopaedic surgeon, on a medico-legal basis at the request of the Defendant. Dr Harris found no evidence of significant underlying pathology. The right shoulder was noted to have significant restriction of movement but this was not consistent over time and not consistent with the findings of minor degenerative changes in the rotator cuff. The symptoms and restrictions found on examination and the results of the imaging studies were found to be not consistent with significant traumatic injury from July 2011. [61]
On 30 October 2013, the Plaintiff saw Dr Kalajdzic who noted that she had completed 10 weeks of hydrotherapy at the Delmar Private Hospital, however, there was minimal improvement and she was still bothered by pain and limited rotation of movement of the right shoulder, lower back pain, right hip and left knee. She was prescribed Panadeine Forte. [62]
On 11 December 2013, the Plaintiff was reviewed by Dr McDougal who noted that the Plaintiff had had some improvement in her right shoulder function and recommended a repeat of hydrotherapy and referral to Greg Carr for an opinion as to long term management. [63]
An MRI taken of the Plaintiff's left knee on 20 December 2012 demonstrated a posterior horn medial meniscal tear
The Plaintiff has continued to see Dr Kalajdzic and has had largely conservative treatment since that time. On 28 April 2014, the Plaintiff was referred to Dr Robert Hoy in relation to left knee pain. She was seen on 9 May 2014. [64] The Plaintiff gave evidence that Dr Hoy advised her that if she did not have bad pain then she would not require an operation, however, if the pain became worse then she would need an operation. He apparently gave the Plaintiff a referral for an MRI, however, the Plaintiff decided not to undergo the MRI as she decided against pursuing the avenue of an operation. [65]

DID THE PLAINTIFF SUSTAIN INJURY TO HER LEFT KNEE, NECK AND LOWER BACK?

The Defendant contends that the evidence of Dr Maiolo at the Dee Why Medical Centre noted complaints of right shoulder, right ankle and right hip in his report. [66] However, six days later Dr Kalajdzic, the Plaintiff's own general practitioner, noted complaints of right shoulder, right hip, right ankle and graze to left elbow. It was submitted that in neither case were there reported complaints of left knee, neck or lower back pain.
The Plaintiff was cross-examined about these omissions and stated:- "I was crying. I was shaking, I was in a state of shock, and I did say my whole body was sore - pretty much my whole body, as I did mention in particular my right side and my back. I actually felt that my entire body was falling apart." [67]
The Plaintiff was asked about not telling Dr Kalajdzic about the other areas where there is a lack of documented complaint. The transcript records:- "Q. You were not in such a state of shock when you saw Dr Kalajzic that you weren't able to tell that doctor what problems you had resulting from the accident, were you? A. INTERPRETER: I told Dr Kalajzic what was the problem, but he said, "Let's concentrate on your right side now and on your bruises." Q. What I want to suggest to you was that you only complained of pain in the right shoulder, right hip and right ankle and a graze on your left elbow? A. INTERPRETER: I had bruises all over my body. Some of these bruises came out a bit later, but my entire body was sore. Q. You didn't make any complaint of left knee pain to the doctor, did you? A. INTERPRETER: I have. I've complained and I've told them. Q. You didn't make any complaint of neck or low back pain to the doctor, did you? A. INTERPRETER: I have, but she said that it's just from I just got barely hit and it will take a few months to recover and then we'll see about it later on. That's why I haven't seen her after that for a long time. I thought I'll just take tablets and wait and see what happens." [68]
Mr Ghabar, who appeared on behalf of the Plaintiff, drew attention to the contents of the referral by Dr Kalajdzic to Jane Campion, [69] which noted on 7 December 2011 a reference to left knee pain. Then, on 16 December 2011, the Plaintiff's left knee was x-rayed at the request of Dr Kalajdzic. It showed normal bone and joint appearances. [70] On 13 January 2012, Dr Kalajdzic referred the Plaintiff to Dr Stuart Watson. [71] Where the referral mentions the sacral area ("uses a cushion, cannot sit for long") and left knee. Dr Watson's report, dated 17 May 2012, certainly notes that the Plaintiff had pain and stiffness in her neck, the right shoulder and wall pain on the right side of her chest, left knee pain (mainly anterior and medial), right hip pain, lumbar spine pain and discomfort with walking. [72]
There is also a further report from Dr Haran [73] which notes that the Plaintiff had mechanical right side shoulder, chest wall, upper and lower limb pain and back pain since a motor vehicle accident in July 2011.
In a report, dated 4 June 2014, Dr Kalajdzic prepared a letter, [74] which reads as follows:- "This is to clarify Ms Radojka Backo's history re: injury sustained in MVA on 27/07/2011. She presented for review on 2/08/2011 when an MVA medical certificate form was completed. At that presentation she was mainly complaining and focusing on the injuries causing most pain (large soft tissue, bruises mainly on the right side of her body, shoulder, hip, ankle) subsequent visits revealed other issues (after shock passed and bruising settled), mainly relating to lower back, hip, knees and ankles. She has had treatment to all of these areas and still suffers from consequences in her everyday functioning."
The context in which this correspondence was written was not clear although in Exhibit J Dr Kalajdzic noted on 25 September 2014 that the Plaintiff was extremely frustrated regarding the insurance claim and wanted all records reviewed as she felt that not all her injuries sustained were documented.
Photographs taken by the Plaintiff's son which were Exhibit D in the proceedings, certainly do show injury to the Plaintiff's right arm, right and left legs, at least in terms of bruising.
The Defendant contends that, based on the certificate from Dr Wing Chan, the Plaintiff's complaints in relation to neck, knees and lumbar spine were not causally related to the accident.
In relation to the lumbar spine, the Plaintiff's counsel conceded that the evidence was "imperfect." [75] In the circumstances, I am not satisfied that the Plaintiff's lumbar spine had sustained injury in the subject accident. I accept the views expressed by Dr Chan in his certificate at Exhibit 5 p 33 that the lumbar spine CT and MRI conducted more than a year after the accident showed age related degeneration and did not reveal any evidence of fracture or trauma to the lumbar spine. [76] In relation to the cervical spine, I also accept the views of Dr Chan in his report found at Exhibit 5 p 17 that the Plaintiff suffers from age related degenerative changes. [77] Both these views accord with Dr Harris. [78]
In relation to the left knee, I accept that the Plaintiff occasioned some injury. Dr Stuart Watson states that the pain relates to the patella femoral joint and medial capsule and there is no effusion in either knee and no obvious mechanical signs. [79] Based on the MRI of the left knee dated 20 December 2012, Dr Harris states that there is no significant abnormality. [80] As I have noted earlier the Plaintiff did not follow with a further MRI.as suggested by Dr Hoy. Dr Dixon describes the Plaintiff suffering from contusions with post traumatic retro patellar crepitus, [81] following direct blows. Dr Chan in his certificate stated that there was no injury to the right or left knee that was casually related to the accident. He based this view on the fact that there was no contemporaneous evidence and the absence of radiology in relation to the right knee and the first x ray the left knee was on 16 December 2011. Whilst in respect of the left knee I accept the views of Dr Harris that there was no significant gap between the time of the accident and the development of symptoms [82] I am not satisfied on the evidence that any meniscal tear demonstrated in the left knee MRI was caused by the accident. Within the terms of s 5D of the 2002 Act. I n any event I accept Dr Harris's view that the Plaintiff did not suffer significant abnormality arising from the accident to the left knee.

ECONOMIC LOSS

The Plaintiff was born in 1956. Between 1984-5 she worked as a waitress in a coffee shop in Croatia. Following the outbreak of the war in 1995 she moved to Serbia where she worked with her husband in a butcher's shop. She was married in 1974 and moved to Australia with her family, including two daughters and a son in May 2000. She undertook courses in English after arriving in Australia before commencing work in October 2000 for a company named Sodexho Australia at the Collaroy Conference Centre. Her job there was as a catering worker. In that position she served customers and assisted in the kitchen. She described her position in the following way:- "Q. What sorts of things were you doing on a day to day basis in that job? A. INTERPRETER: In the morning we served breakfast, then we clean tables after the breakfast finished, then we would put dirty stuff like dishes onto the trolley, we were pushing these trollies, take the rubbish out then we vacuum. Sometimes we were required to clean windows around, then we do preparations for lunch. So after lunch we would do the same thing like clean tables, take the dishes away, then we make preparations for the following day, breakfast the following day, like juices, milk, et cetera. Then after lunch we would vacuum again, then we also make preparations for upcoming dinner. So after the dishes were cleaned and washed we would put it away. After we finish everything, which would be around 3 o'clock, we would go home." [83]
The Plaintiff's position was as a casual although could include working seven days per week. She said that her job involved standing and walking. [84] She was required to work essentially all day, apart from a break of 15 minutes in the morning and 30 minutes for lunch. [85] In respect of her work, she said the following:- "We were working constantly, there were things to be done all the time; preparation; preparing cakes; preparing juices for morning tea, or afternoon tea, water for dinner, juices for breakfast and there was always something. We were helping in the kitchen when they needed a hand in the kitchen." [86]
The Plaintiff gave evidence of helping in the kitchen which she described as:- "Putting ham in the roast pan; preparing sausages for breakfast; cutting cakes for morning tea, or afternoon tea; putting them on trays, sometimes making salads." [87]
The Plaintiff also outlined how she carried items, such as salad and tomatoes from the cool room as well as taking out rubbish. [88] She stated that prior to the accident she had no difficulty with the job. [89] In December 2009, her employer became Catering Industries, however, there was no change in her work duties. Just before the accident, her employer changed again to the Salvation Army. She was required to sign a contract with the Salvation Army, a copy of which was tendered in evidence and was dated 26 July 2011. [90]
In 2004, whilst at work, the Plaintiff twisted her back and had a short time off work. This injury did not assume any significance in the hearing. [91] The Plaintiff stated that, following the accident, she was in constant pain in her shoulder and left knee. She had 4 weeks off from work during which her pains changed and she began to feel better. She was at home, taking tablets for said pain. [92] The Plaintiff stated that, thereafter, she returned to light duties [93] although her hours remained the same. [94] The Plaintiff stated that she was not required to lift heavy items or push trolleys. [95] She was also not required to raise her arm. [96] The Plaintiff stated that she remained on restricted duties following her return to work. [97] She stated that even after having been back at work some time, she still felt sore at the end of the working week. [98]
The Plaintiff stated that, during 2003, there were many occasions when she did not work. These were days when she would be scheduled to work or asked to work and did not do so. She stated that she did not go to work on occasion even if rostered to do so. On such occasions, the Plaintiff stated that she would contact her employer and state that she was unable to attend work. [99] The Plaintiff stated that in late October/November 2003 she was in constant pain in her right shoulder but had to go to work. She stated that because she was not a full-time employee there were no records of that fact. [100] The Plaintiff agreed with the proposition that, in the latter part of 2013, there were large amounts of time when she would not attend work due to pain. The Plaintiff indicated that, in early 2014, there was a flare-up in her lower back pain and she was off work in the latter part of January and into the middle of March 2014. [101] She stated:- "…because when I got to work, I aggravate my pain more. I'm talking about my shoulder and my back, it hurts more. I would like to work but I can't." [102]
The evidence was that the Plaintiff tried to undertake some work shifts in March. She stated in regards to the period following 25 April 2014:- "I didn't go to work because I had a bad pain in my shoulder and in my back, mainly because I had been working previously and I aggravated my pain. I tried to see whether I'll get better." [103]
The Plaintiff went back to work, according to her evidence, on 29 October 2014 although she was not quite certain. [104] Upon her return, the hours and days were flexible and the Plaintiff gave evidence that whatever time she wanted to spend working, she was asked to let her manager know. [105]
In cross-examination, questions were put to the Plaintiff regarding her return to work. In particular, it was put that she had worked one 7 day week and two 6 day weeks. She indicated "maybe" but she could not remember. [106] The Plaintiff had a similar response when it was put that to her that she worked overtime. [107]
It was further put to the Plaintiff that she injured her finger at work on 27 January 2012 and as a consequence she was away from work until 7 February 2012 when she was provided with a medical certificate for light duties until 17 February 2012. The Plaintiff agreed [108] but also acknowledged that she did not receive a medical certificate for her motor vehicle accident, [109] stating "people at work are extremely helpful."
It was next put that, following a return to work in February 2012, the Plaintiff worked 13 days straight. The Plaintiff stated that she could not remember. Nor could she remember four double shifts within those 13 days. [110] The Plaintiff was further questioned about working two shifts of overtime in March 2012. She stated that she could not remember doing any overtime after the accident apart from an hour or two to help out with "light stuff." [111] The Plaintiff maintained that the work that she did was light and that she had assistance. Nonetheless, she acknowledged that she was on her feet for most of the day, serving meals, preparing meals, cleaning and wiping tables with her left hand. The Plaintiff reiterated that she ceased work, not only because of the pain in her knee but also due to her back and shoulder. She stated that since returning to work she tried 5, 6 or 7 hours for two days per week. She also tried a 7 hour shift packing lunch sandwiches. She denied being able to do some of the same duties that she was performing in September 2011 and denied being able to do the hours that she was working in late 2011 and into 2012.
Evidence was given from Ms Nada Smit, who was a chef and supervisor in the kitchen of the Collaroy Conference Centre. Her evidence was that in the course of her employment she had observed the Plaintiff being an excellent worker. She stated that, after the accident, the Plaintiff could not work the "hard job." [112] She stated that the Plaintiff could not work many hours and she was asking for "light duty, easier job." [113] When asked to describe these she stated:- "I told you, the tray up, cakes already made on the plates and we need everything putting on the bench for her to prepare everything and sometimes clean vegetables, for example, carrot, potatoes, so whatever and clean up cutlery, what we need many people do it because we are busy and we just prefer her for that job." [114]
Ms Smit acknowledged that Ms Linfer Hillman was the supervisor in the dining room and would play a role in finding jobs for the Plaintiff to perform. [115] Ms Smit confirmed that, since 2011, she had not noticed improvement in the Plaintiff's ability to conduct her duties. [116] In the past few months, Ms Smit stated that the Plaintiff "was losing like energy, or something, I don't know." [117] Ms Smit stated that she tried to give the Plaintiff tasks which required sitting down. [118] More than half the Plaintiff's time was spent in the kitchen, depending on which job was easier for her as the Plaintiff could not clean tables or vacuum. [119]
In cross-examination, the hours of work that the Plaintiff worked following the accident were put to Ms Smit but it was clear that Ms Smit was not working the same hours as the Plaintiff. [120] She stated that, although she worked in the kitchen area and the Plaintiff worked in the dining room, she could see what the Plaintiff was doing as it was open. [121] She stated that the Plaintiff would come to the kitchen 3 to 4 days per week and worked for more hours than with the dining supervisor. [122] When she was not there, there were other chefs. Ms Smit's evidence confirmed that the Plaintiff was only performing light duties, consistent with the Plaintiff's evidence.
The Plaintiff's attendance records were Exhibit F in the proceedings.
Ms Linfer Hillman did not give evidence, however, a record from the Collaroy Conference Centre, dated 4 February 2014, stated:- "… Radojka has always been a very dedicated and hard worker/employer, however, since her accident on 27 July 2011 her performance and work capability have changed and she can only do light duties, no heavy lifting, no vacuuming etc. She used to work most of the weekdays, weekends and public holidays but now she is only able to work minimum hours." [123]
The Plaintiff's tax returns from 2004 to 2014 were tendered in the proceedings as part of Exhibit E. The Plaintiff claims that the average figures over a five year period from 2007 to 2011 disclose a net weekly income of $670.00 per week. The Defendant disputes this figure, stating that the 2010 earnings, which were $805.00 per week, distort the Plaintiff's earnings as it was an unusually high amount.
The Plaintiff claims an allowance of $10,000.00 for loss of earnings on a buffer basis between 2012 and 2013. She submits that the taxable income was derived in 2012 of $37,476.00 and in 2013 $36,102.00. The Defendant submits a taxable income in 2012 of $39,186.00 and in 2013 of $39,445.00. Needless to say, the Defendant's figures are higher but they are in line of what the Plaintiff was earning in 2011, submitted by the Plaintiff as $37,479.00 gross and by the Defendant as $39,186.00 gross.
Beyond four weeks, immediately following the accident, there is no evidence that the Plaintiff suffered a loss of earnings. Indeed, to the contrary, the evidence was that the Plaintiff worked extensively, including overtime and double shifts, albeit on light duties. [124] On the evidence, I am not satisfied that the Plaintiff's loss of earning capacity has demonstrated a loss of earnings in the 2012 and 2013 financial years beyond four weeks referred to;. which I will allow at $2,680 plus $295 for loss of superannuation .
The Plaintiff's evidence was that, during 2013, there were many occasions when she did not work. The Plaintiff's counsel describes this as follows:- "The Plaintiff did not work at all between July and August 2013, along with substantial periods in October, November and December 2013." [125]
In fact, the evidence in Exhibit F shows that the Plaintiff did work a number of shifts in July but not in August. They also show work in October, November and December, albeit with gaps. The Plaintiff's evidence was that when she had pain in the shoulder or back, she would not go to work. The Plaintiff gave evidence that, in the early part of 2013, she had a flare up in lower back pain and did not go to work in January. This continued on when she went back to Delmar Hospital for hydrotherapy and into March. She said that she was still in pain and staying at home because she was hoping that the pain would be better because work had aggravated her pain to her shoulder. Exhibit F demonstrates that the Plaintiff did have some time off work after 25 April 2013. The Plaintiff makes a claim based on the difference between her pre-accident taxable income, (being $37,479.00 in 2011) and the taxable income in 2014, (being $17,488.00), being an amount of some $23,000.00; in respect of which a net sum of $20,000.00 is claimed for the financial year ending on 30 June 2014. The Defendant's taxable income figures were $39,186 in 2011 and $17,738 in 2014.
The medical evidence in respect of this period has been described earlier. On 30 October 2013, Dr Kalajdzic records treatment at Delmar Private Hospital and noted that the Plaintiff was still bothered by pain with limited rotation of movement in the right shoulder and lower back pain. It noted pain in the right hip and knees (left more than right) and that the Plaintiff was unable to work for months. On 5 December 2013, Dr Kalajdzic recorded that the Plaintiff had a recent flare up in back pain and could not work for one month, being bed ridden, but was now improving. It noted aching in her neck, shoulders, lower back and left knee, for which she was receiving physiotherapy. On 28 April 2014, it was noted that the Plaintiff's left knee was unbearable, that she required Panadeine Forte daily, was affecting her sleep and had a poor response to hydrotherapy. On 4 June 2014, the Plaintiff was given a prescription for Panadeine Forte.
In all, I am satisfied that the Plaintiff's accident injuries did contribute to her absences however, it is difficult to determine the precise extent. Bearing in mind the limited nature of my findings on injuries arising from the accident, I consider that it is appropriate to allow a buffer in respect of this period in the sum of $10,000.00, which is based on approximately half the difference in earnings recorded in 2014 compared to the figures in 2011. [126] This amount includes any associated loss of superannuation.
For 2014 to date, the Plaintiff claims $670.00 from 1 July 2014 to mid-October 2014 and from mid-October 2014 to date (being an amount of 31 weeks) in the sum of $450.00 per week. That sum is derived on the basis that the Plaintiff averages a loss of $450.00 per week due to her six shift per week average before the accident and would, but for the accident, have continued such earnings. The Plaintiff's evidence was that she returned to work on 29 October 2014 and worked for 5 or 7 hours with breaks. She said that she was able to manage two days, sometimes one day, and if she did not feel up to it then she would not return to work on other days. There is no up to date medical evidence regarding these absences. A consultation with Dr Kalajdzic on 1 December 2014 [127] records lower back pain, worse lately, shoulder waking her up, left knee causing trouble walking and managing to work four hours on and off.
The Plaintiff's claim in relation to this period comes to, on my calculations, $24,000.00. The Defendant submits that a buffer of only $5,000.00 should be allowed for the past.
There is a high level of imprecision in the calculations submitted on behalf of the Plaintiff and I am unable to determine on the evidence that her absences were solely due to the injuries occasioned in the accident. In the circumstances, I will allow an amount of $12,000.00 in relation to the period from 29 October 2014 to date.
In relation to the past, therefore, I will allow a total of $24,680.00. The buffers for past loss incorporate any loss of superannuation.
In respect of the future, I do not accept Dr Dixon's analysis that the Plaintiff's working life would have been cut short by five years as a particular consequence of the accident. But for the accident, I am of the view that the Plaintiff would be able to continue working light duties as she had done immediately following her four weeks of absence. I accept that the Plaintiff would have been confined to light duties and to that extent may have required some time off from time to time. Her time off since the accident has been magnified due to injuries which I do not consider to be related to the accident on my findings. The Plaintiff did manage to adjust well, following the accident, to light duties work and she had a sympathetic employer. She clearly enjoys working and I satisfied that, but for the accident, she would have continued in the position that she had. She managed, since the accident, to adjust her work insofar as her right arm is concerned; however, it is clear that it is difficult to make adjustments in relation to other parts of her body where she experiences symptoms of which I do not find caused by injury suffered in the accident. In the circumstances I consider it best to deal with this matter by way of a buffer to take account of the time when she may be absent and the diminution of the general labour market that she will suffer. She is currently 59 years of age and has 8 years of working life but for the accident. I consider the appropriate allowance to make into the future would be by way of buffer which, in broad terms, equates with 18 months of earnings. Accordingly, I would allow a buffer in the sum of $55,000.00 which includes loss of superannuation.

PAST OUT OF POCKET EXPENSES

The parties have agreed mathematically on an amount of $5,061.70 relating to injury sustained in the accident by way of out of pocket expenses. There is a balance of $1,365.85 which is related to the left knee that the Defendant disputes. Based on my findings, however, there is some causal relationship although I do not consider there to be significant abnormality arising from the accident. In the circumstances I would allow the sum of $6,427.55 for past out of pocket expenses.

FUTURE OUT OF POCKET EXPENSES

In assessing the claim for future out of pocket expenses, the Plaintiff claims continued medication of $30.00 per month at $6.92 per week. I consider this reasonable based on the evidence, in particular, of Dr Dixon in his report. [128] Visits to general practitioners are claimed at $60.00 per month. Dr Dixon only allows for three monthly visits from 2015 onwards. I also note that visits with Dr Kalajdzic are less frequent in 2014 and in relation to the injuries relating to the accident. In the circumstances I consider it reasonable to allow for four visits per year at $60.00 each, being an amount of $4.60 per week.
I do not consider the provision of physiotherapy and hydrotherapy as reasonable and necessary. In relation to physiotherapy there is no evidence from Jane Campion, to whom the Plaintiff was referred by her general practitioner. The Plaintiff was also referred for physiotherapy to Mona Vale Hospital by Dr Haran. [129] The outcome from this referral was not disclosed on the evidence. In relation to hydrotherapy Dr Kalajdzic noted on 31 October 2013 [130] that this provided minimal improvement. The Plaintiff's evidence was that it had helped "a bit." [131] Dr Dixon, in his report, [132] only recommended self-managed hydrotherapy for one year; a time period which, bearing in mind the date of the report, has since passed. Dr McDougall, in his report dated 31 May 2013, [133] recommended home physiotherapy.
In all of the circumstances I accept Dr Harris' view [134] that the Plaintiff has not received any significant benefit from any of her treatments to date including injections, physiotherapy and hydrotherapy and therefore it is unlikely that ongoing therapy would provide any benefit.
Insofar as specialist consultations are concerned, it is noteworthy that the Plaintiff has seen various practitioners both for medico-legal and for treatment purposes. Dr Dixon recommends seeing a sports injury physician but only "as required." [135] In the circumstances, I do not see any benefit in ongoing management by a specialist and decline to make any allowance. On this basis I would allow a sum of $11.52 per week, which on the multiplier of 809.6 equates with a sum of $9,326.59.

PAST DOMESTIC ASSISTANCE

In respect of the past, the Plaintiff claims the sum of $17,351.50 in respect of 7.25 hours at $26.00 per hour for 39 weeks from 27 July 2011 to 27 April 2012.
The Plaintiff's contention is set out at [50]-[54] of the Plaintiff's written submissions. In short, it is argued that Dr Chan issued a certificate, dated 28 June 2014, [136] where he found that the accident caused certain injuries that provided the need for domestic assistance from the date of the accident to the date of the assessment, being 5 June 2014. The certificate specifically relates to the injuries found by him to be caused by the accident and finds:- "The need for domestic assistance for tasks including making the bed, cooking, vacuuming, cleaning the bathroom, washing the clothes and grocery shopping from the date of the accident to the date of the MAS Assessment."
A further certificate was issued on 4 September 2014 by Belinda Shepherd. [137] In considering the causally related injuries and the treatments noted for assessment, the assessor summarises the need for Ms Backo's care from 27 July 2011 to 27 April 2012 as follows:- "Bed making - 0.25 hours per week Cooking - 3.5 hours per week Vacuuming - 0.5 hours per week Cleaning the bathroom - 0.5 hours per week Washing the clothes - 0.5 hours per week Grocery shopping - 2 hours per week Total = 7.25 hours per week"
These items correspond with the references to activities in Dr Chan's certificate.
The Plaintiff argues that Ms Shepherd's reasons form part of the certificate. [138] The Plaintiff further claims that this meets the threshold of the award of damages for domestic care as it was for more than 6 months and for more than 6 hours per week. The Plaintiff further contends that, having regard to s 61(2) of the 1999 Act, the Plaintiff and the Defendant are bound by these findings in respect of the past care claim.
The Defendant draws attention to Dr Chan's certificate which states that it would be reasonable for the Plaintiff to have care for the first six weeks after the accident. The Defendant contends that this opinion does not form part of the certificate and is not binding but it is nevertheless highly persuasive. Dr Chan, however, did find that 0-6 hours of domestic assistance arising from the injuries caused by the motor vehicle accident was not reasonable and necessary in the circumstances. [139]
The Defendant further draws attention to the certificate issued by Assessor Shepherd which certifies that 0, 1, 2, 3, 4, 5, 6, 7 and 7.25 hours of domestic assistance is not reasonable and necessary. [140] It contended that the certificate was binding, however, the view expressed that 7.25 hours per week of care was reasonable and necessary up to 27 April 2014, was not binding as it did not form part of the certificate. [141] It contended that the level of work which the Plaintiff was performing when she resumed work in September 2011 was inconsistent with the level of care suggested by Assessor Shepherd.
In this respect, it is important to consider the relevant statutory provisions. S 61 of the 1999 Act relevantly reads as follows:- "61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter 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. … (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. …"[emphasis added]
It can be readily seen that the section distinguishes between certificate, matters referred for assessment, medical assessment matters and reasons for any findings as to any matter certified in the certificate. Medical assessment matters are defined in s 58 as follows:- "58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as "medical assessment matters" ): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, …"
Allianz Australia Insurance Limited v Serria Girgis & Ors, [142] Adams J stated at [48]:- "It is important to note that the questions posed by paragraphs (a) and (b) of the subsection are narrowly phrased, pointing to "the treatment provided or to be provided " and " such treatment" (emphasis added). This is a reference, to my mind, to the treatment proposed by the contending parties and not in the abstract. If it had been intended to permit a Medical Assessor to certify as to the treatment which, in his or her opinion would be reasonable and necessary and related to the injury caused by the accident, this would have been a simple matter to provide. Its absence fortifies my view of the limited character of the "medical assessment matter" to which these paragraphs refer, in respect of the certification of which conclusiveness is ascribed. In this case, there is another complicating feature capable of reflecting on the assessment of need for domestic services, namely the significant psychological injury to which I referred and which had the effect, it is clear from Assessor Broomfield's reasons, of adversely affecting Ms Girgis' functioning and thus affecting the domestic assistance which was and will be appropriate. Assessor Broomfield did not deal with this aspect distinctly, simply referring in a general way to Ms Girgis' disabilities. In my view, as Assessor Broomfield decided, he was bound by the Medical Assessor's rejection of the appropriateness of the assistance proposed by Ms Girgis but he was not bound to accept the Assessor's view as to the appropriate level of such assistance."
This view was followed in Assurance Australia Limited t/a NRMA Insurance v Banos [2013] NSWSC 1519.
In my view consistent with the analysis of the legislation and authorities referred to, reasons in certificates are not binding as the Plaintiff asserts, although I accept that they are binding in relation to medical assessment matter as defined in s 58. This is consistent with the alternative argument as expressed by the Plaintiff in oral submissions. [143]
Accordingly, Dr Chan's views in relation to the kind of domestic assistance which the Plaintiff is unable to perform during the period is, in my view, binding. Bearing this in mind the certification by Dr Chan and Assessor Shepherd in relation to hours the views expressed in the reasons are not binding.
Dr Dixon, in his report, [144] stated as follows:- "She requires gratuitous domestic assistance of her household chores provided by her husband of half an hour per week, making the bed of three and a half hours per week, half an hour per week vacuuming, half an hour per week cleaning the bathroom, half an hour per week washing the clothes and two hours per week grocery shopping, totalling seven and a half hours per week. This appears reasonable and necessary."
Dr Harris, in his report, [145] noted:- "Regarding her activities of daily living, she has difficulty sitting, standing, elevating the right arm, performing household duties such as cooking and cleaning, sleeping and activities of self-care such as dressing and showering."
Dr Chan found it reasonable that, as Ms Backo has returned to work one month after the accident, it would be reasonable for her to have some help to perform some of the daily home chores for the first six weeks after the accident in which she had injured her right shoulder. As she was able to return to work approximately one month after the accident, Dr Chan was of the view that she does not require any assistance with home chores thereafter.
In respect of the period immediately following the accident accept that in the period the Plaintiff's husband Nikola Backo and to a lesser extent the Plaintiff's daughter took on additional household duties as disclosed in the evidence of Mr Backo. The hours and duties he gave evidence of spending were broadly consistent with those recorded in Assessor Shepherd's certificate. Overall on the evidence I accept the history obtained and opinion expressed by Assessor Shepherd and consider it reasonable and necessary to allow the Plaintiff past domestic assistance based on 7.25 hours per week for 39 weeks. At $26.00 per hour, this comes to an amount of $7,351.50.

FUTURE DOMESTIC ASSISTANCE

In relation to the future, Dr Chan certified as follows:- "The following treatments, namely: Need for domestic assistance for tasks including making the bed, cooking, vacuuming, cleaning the bathroom, washing the clothes and grocery shopping from the date of the MAS assessment continuing for the claimant's life expectancy DO NOT RELATE TO THE INJURIES caused by the motor accident." [146]
The Plaintiff alleges that this certificate is not conclusive and it should be set aside. The basis of the first contention is that the determination of damages for future care, as opposed to the medical opinion of the various medical practitioners as to what the Plaintiff requires, has always been a function of the judicial officer deciding that personal injury case. There is nothing in the 1999 Act to permit that function to be assessed by way of the provision of a MAS Assessment.
This submission has no substance. S 58(1)(a) applies to the medical assessment regime to disagreements as to whether the treatment provided ought to be provided to the injured person was or is reasonable and necessary in the circumstances.
Next, the Plaintiff contends that the Court may reject a certificate in the circumstances described in s 61(4) of the 1999 Act. This provision reads as follows:- "61 Status of medical assessments (4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party."
It will be noted that this section refers to the inadequacies of the certificate. The inadequacies contended relate to the finding as to causation and the fact that the Plaintiff did not have the opportunity to put lay evidence in the same manner that was done with respect to the question of care. It is also put that the Plaintiff did not have the opportunity of having an advocate at the assessment.
It is necessary to state that if circumstances activating a finding under s 61(4) arise, then the power of the Court under s 61(5) is to refer the matter again for assessment and adjourn the proceedings until a further certificate is given and admitted into evidence in the proceedings. S 61(7) specifically states that a Court may not substitute its own determination as to any medical assessment matter. The Plaintiff has not contended that this should be done. Whilst I am satisfied that causation has been established in relation to the left leg, bearing in mind the nature of this injury as I have found it, I am not satisfied that substantial injustice has been occasioned and it follows that I find that the certificate is conclusive.
Accordingly, I decline to award any sum for future domestic assistance.
Even if I am wrong in this view, I would not accept that the evidence of Dr Dixon as supporting that future care as referred to is reasonable and necessary. Dr Dixon's expertise is as an orthopaedic surgeon and it is not clear that the assessment of the number of hours to undertake domestic duties is the kind of expertise normally attributed to an orthopaedic surgeon. [147] Moreover, his assessment of the Plaintiff's injuries do not accord with that of other doctors, particularly Dr McDougall whose report states:- "Most problems have resolved somewhat, however, she has persistent chronic shoulder pain." [148]
The Plaintiff's other contention rests on different opportunities that are presented through the assessment process as opposed to a Court hearing. It is noted the medical assessment regime was brought about by the referral of the medical assessment matter by the parties and neither party in this instance exercised the right that was available to them to seek a review under s 63 of the 1999 Act.

CONCLUSION

For these reasons there will be a verdict and judgment for the Plaintiff comprised as follows: 1. Past out of pocket expenses - $6,427.55 2. Future out of pocket expenses - $9,326.59 3. Past economic loss - $24,680.00 4. Future economic loss - $55,000.00 (buffer) 5. Loss of superannuation - 11% on past $295.00 6. Past domestic assistance - $7,351.50 7. Future domestic assistance - Nil
This totals $103,080.64 which, less 55% for contributory negligence, makes for an amount of $46,386.29.
Accordingly, the orders will be: 1. Verdict and judgment for the Plaintiff in the sum of $46,386.00 (rounded off); 2. The Defendant is to pay the Plaintiff's costs; 3. The parties are granted liberty to apply within 14 days to relist the matter in relation to any special costs orders; 4. Exhibits are to be retained for 28 days.

Endnotes

T 16.45
T 39.40-42.15
T 40.45
T 41.35-42.10
T 33.40
T 54.5
T 54.8
T 55.3
T 55.30
T 56.9
T 60.32
T 60.48-.50
T 57.30
T 57.36
T 57.44
T 57.18
T 129.10-.49
T 145.40
T 145.47
T 146.14
T 146.33-147.11
T 139.19
T 133.38, 136.7
T 137.41
T 142.20
T 142.45
T 144.35-.45
Exhibit E, p3 shows damage to the Defendant's vehicle
Hereinafter the '2002 Act'
See 1999 Act, s 138,
[2015] NSWCA 128 at [20]
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 at [99]-[100] and Gordon v Troung [2014] NSWCA 97 [13]-[21],
Kollas v Scurrah [2008] NSWCA 17 at [76] (per Bell JA with whom Mason P agreed)
See Exhibit E p 213
T 11.50
Exhibit E p 217
T 19.15-20.35
T 21.5-20
T 22.25
Exhibit E p 225
Exhibit E p 218
Exhibit E p 218
Exhibit E p 220
Exhibit E p 225
Exhibit E p 218
Exhibit E p 225
Exhibit E p 238
Exhibit E p 229
Exhibit E p 334
Exhibit E p 265
Exhibit E p 335
Exhibit E p 338
Exhibit E p 336
T 24.12
Exhibit E p 337
Exhibit E p 252
Exhibit E p 260
Exhibit E p 2064
T 25.23
T 25.33-.37 and Exhibit E p 262
Exhibit 5
Exhibit J
Exhibit E p 262
Exhibit J
T 27.20-.45
Exhibit E p 213
T 67.40
T 67.50 - 68.18
Exhibit E p 229
Exhibit E p 238
Exhibit E p 216
Exhibit E p 265
Exhibit E, p 336
Exhibit E ,p 219
T 172.7
Exhibit 5, p 33
Exhibit 5, p 31
Exhibit 5, p 9
Exhibit E, p 265
Exhibit 5, p 9
Exhibit E, p 252
Exhibit 5, p 7
T 9.37-.48
T 10.23
T 10.26
T 10.32
T 10.39
T 10.49
T 11.50
Exhibit A
T 11.50
T 21.45
T 21.50
T 22.3
T 22.7
T 22.11
T 22.20
T 22.24
T 26.5
T 26.20
T 26.33
T 27.8
T 27.49
T 28.15
T 28.32
T 72.38
T 72.37-.41
T 73.28
T 73.37
T 73.47
T 74.9
T 94.35
T 95.12
T 95.15
T 95.45-.50
T 97.3
T 97.34
T 97.40
T 98.20
T 100.45
T 102.45
T 104.37
Exhibit G
See Exhibit F
See Plaintiff's synopsis and schedule of damages, p 33
$39,186.00 for 2011, less $17,738.00 in 2014
See Exhibit J
Exhibit 5 p 292
Exhibit 5 p 336
Exhibit J
T 25.33
Exhibit 5 p 292
Exhibit 5 p 261
Exhibit 5 p 9
Exhibit 5 p 292
Exhibit 5 p 14
Exhibit 5 p 43
Exhibit 5 p 45
Exhibit 5 p 17
Exhibit 5 p 43-44
Allianz Australia Insurance Limited v Serria Girgis & Ors [2011] NSWSC 1424
[2011] NSWSC 1424
T 170.35
Exhibit 5 p 252
Exhibit 5 p 7
Exhibit 5 p 16
Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 at [47]
Exhibit 5 p 260 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: 03 June 2015

D Villa, Annotated Civil Liability Act 2002(NSW)

Civil Liability Act 2002(NSW)s 5B, 5D, 5R

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Judgment (13 paragraphs)

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