Ross v Nominal Defendant

District Court of NSW|2013-06-06

Table of Contents Nature of case [1] Issues [2] Credit [3] Facts [4] - [59] Plaintiff's background [5] - [7] Non-contentious description of the events [8] - [16] Injuries [17] Initial medical assessment and treatment [18] - [22] Subsequent medical and allied assessments [23] - [51] Disabilities [52] - [58] Mitigation [59] Issue 1 - Circumstances of the accident [60] - [89] Issue 2 - Negligence [90] - [100] Issue 3 - Contributory negligence [101] - [113] Issue 4 - Due inquiry and search [114] - [149] Issue 5 - Assessment of damages [150] - [207] Probable lifespan of the plaintiff [151] Non-economic loss [152] - [154] Economic loss [155] - [168] Past gratuitous care [169] Past paid care [170] Future care [171] - [191] Future out-of-pocket expenses [192] - [199] Past out-of-pocket expenses [200] - [206] Summary of damages assessment [207] Disposition [208] Costs [209] Orders [210]

Nature of case 1The plaintiff, Dr Ysaiah Ross, an academic lawyer and writer, brings these proceedings against the Nominal Defendant for damages for injuries he sustained as a pedestrian in a motor vehicle accident involving an unidentified mini-bus on the Terminal 2 arrivals road of Keith Smith Avenue outside Domestic Terminal 2 at Sydney Airport at about 2.30pm on Friday 30 May 2008. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"] and the provisions of the Civil Liability Act 2002 ["CL Act"].

Issues 2The issues calling for decision in the proceedings can be conveniently outlined as follows: Issue 1 - Resolution of the disputed circumstances of the accident; Issue 2 - Whether the driver of the unidentified vehicle was negligent; Issue 3 - Whether there was contributory negligence on the part of the plaintiff; Issue 4 - Whether the vehicle that struck the plaintiff would have been identified after due inquiry and search; Issue 5 - The assessment of the plaintiff's entitlement to damages;

Credit 3No real issues arose concerning the credibility of the testimony of the plaintiff. Instead, questions concerning the reliability of the plaintiff's evidence require assessment in the context within which such questions arise, primarily in connection with Issue 1.

Facts 4In the paragraphs that follow, before addressing the liability and damages issues, I set out my findings of fact concerning the plaintiff's background, the non-contentious aspects of the circumstances of the accident, and the sequelae of the accident as they affected the plaintiff.

Plaintiff's background 5The plaintiff was born in New York in 1939. He is presently aged 73 years. He initially pursued undergraduate studies in Engineering and Arts. He obtained his Juris Doctorate in law from the University of California in 1964. After practising law in the USA for a number of years, mainly assisting the underprivileged, in 1970, he commenced his pursuit of an academic legal career. Since 1973 he has lived in Australia. He has been admitted as a barrister in NSW since 1983, principally as an academic practitioner. He is a well known and published legal ethicist, having published some 17 books as well as numerous articles in that field. 6The plaintiff has pursued a distinguished career as a Professor and Teaching Fellow, both in tenured and visiting positions at numerous universities, these being in Australia, New Zealand, Papua New Guinea, France, the United Kingdom, Africa, Japan and in the United States of America. 7Years before the subject accident, the plaintiff had some previous injuries that required medical attention. These included a fracture in his left foot and a crack fracture of the left elbow whilst playing basketball as an undergraduate, a left knee cartilage injury at the age of 26, a hernia repair at age 27, another at age 52, a torn right Achilles tendon at age 37, and a right hip replacement at age 67. Otherwise, the plaintiff was of reasonably good health and disposition before the subject accident. He had no symptoms in his feet or in his left hip before the subject accident.

Non-contentious description of the events of the accident 8What follows is a non-contentious summary of the circumstances of the accident as a background to making findings concerning matters of dispute relating to Issue 1. 9The plaintiff had attended Sydney Domestic Terminal 2 at Mascot airport to meet an overseas visitor. Whilst waiting for his visitor, he decided to walk from the terminal to his parked vehicle in order to check on permitted parking terms. 10In those events, the plaintiff stepped from the kerb onto the adjacent roadway in order to walk towards his vehicle, which was parked about 150 metres away. Shortly after taking his second step, the plaintiff was struck from the right by the front passenger side fender of an unidentified mini-bus, and his right foot was run over by the front passenger side wheel that mini-bus, which had travelled from the plaintiff's right. In those events, the plaintiff's right foot was temporarily pivoted onto the ground in the kerbside lane, and he fell backwards onto the roadway. The mini-bus then moved forward and it then stopped within a relatively short distance. In the process, the plaintiff's right foot was freed and the plaintiff then got to his feet. 11The plaintiff stated that before he had stepped off the kerb, he had looked to his right, and did not see any vehicles approaching from his right. In contrast, the defendant argued that the plaintiff had stepped off the kerb and into the path of the approaching mini-van without keeping a proper lookout. There were no other eyewitness accounts of the accident. 12Following the accident, the driver of the vehicle alighted and attended to the plaintiff, who by that time was already standing. After a short conversation with the plaintiff, that driver went to his mini-bus and then returned with a box of tissues to assist the plaintiff to tend to his bleeding lacerations or abrasions on either his right elbow or his right leg, or both. A further brief conversation with the driver then ensued. In those events, a number of other people had approached the plaintiff to check on his well-being. 13Whilst the plaintiff was conversing with those persons, he felt shocked by the events that had occurred. He also described feeling "groggy" or "woozy" at that time. During this time, the driver of the mini-bus drove away from the scene. Before driving away the vehicle had been stationary and located at a point a few feet away from where the plaintiff was standing. The plaintiff did not obtain or receive any identifying particulars of the mini-bus, its driver, or any of the persons who were in the vicinity at that time. 14At the scene of the accident, the plaintiff initially thought he had not been seriously injured. He walked to his parked vehicle. He made mobile telephone contact with his visitor who then made his way to the plaintiff's vehicle. Whilst they drove from the airport, the plaintiff realised and decided he should seek medical attention, and he proceeded to do so. 15A complication emerged in the plaintiff's investigation of the incident. At an early stage, it was wrongly assumed by the plaintiff that the accident had occurred at Terminal 3, whereas it had in fact occurred at Terminal 2. That error was not realised until 27 March 2009, some 10 months later, when the plaintiff was interviewed by a liability investigator who had been appointed by the Nominal Defendant. This matter has some bearing on the issue of due inquiry and search. 16In resisting the claim by the plaintiff, the defendant relied upon the decision in Nominal Defendant v Meakes [2012] NSWCA 66, and argued that the plaintiff had failed to establish that there had been due inquiry and search to seek to identify the min-van and its driver, as was required by s 34 of the MAC Act. The plaintiff sought to distinguish that authority, arguing that his obligation to carry out due inquiry and search had been fulfilled in the circumstances of this case. Those arguments require resolution in connection with Issue 4.

Injuries 17The plaintiff sustained a severe crushing injury to his right foot when the front passenger side tyre of the mini-bus involved in the incident had run over that foot. He then fell backwards and sustained a straining injury to that foot as it was released from the pressure of the tyre. He also sustained lacerations, scrapes and abrasions to his right elbow, lower limbs and hands. The right foot injury subsequently had reactive consequences for the plaintiff's left hip.

Initial medical assessment and treatment 18As the plaintiff was bleeding at the scene, he was given some first aid by the driver of the mini-bus provided him with a box of tissues as first aid to stem the bleeding. At that time he did not consider that he had sustained a significant injury. 19Shortly after leaving the airport with his overseas visitor, the plaintiff decided that he should obtain medical attention. He drove to the Prince of Wales Hospital in an endeavour to obtain medical assistance. On arrival at the hospital, it was determined that the waiting time to be seen in the accident and emergency department would be too long, so the plaintiff then decided to consult a nearby general practitioner, Dr Robert Mundell, whose practice was adjacent to the hospital. That consultation occurred about 90 minutes after the accident. Dr Mundell prepared an historical report dated 22 October 2008 concerning that consultation. 20In his initial examination of the plaintiff, Dr Mundell observed the plaintiff had presented in mild distress, having suffered an injury to his right foot, the patellar region of the left knee, and multiple abrasions and several lacerations, including to his left hand and fingers. He observed the plaintiff's right foot to be bruised, swollen and tender. An x-ray was ordered and this was arranged to be carried out at Randwick. 21That x-ray was initially reported as showing a small avulsion fracture at the base of the second metatarsal bone. The x-ray was misinterpreted, and a Lisfranc fracture went undetected until some 7 weeks later. At the time he was first assessed, the plaintiff was reluctant to see an orthopaedic surgeon, as he was about to embark on a planned overseas trip. 22The plaintiff's decision at that time was influenced by the fact that he was able to mobilise with relatively little pain. The treatment recommended to him was analgesia, ice packs and bandaging of the right foot. At that time the plaintiff was advised that the fracture was expected to resolve within 6-8 weeks without long term complications.

Subsequent medical and allied assessments 23In the paragraphs that follow, as an aide to analysis, including for the assessment of damages for non-economic loss, I have set out a chronological history summarising the plaintiff's post-accident medical examinations and assessments. 2008 24On 14 July 2008, after the plaintiff returned from his trip overseas, at the referral of his local doctor, he underwent a CT scan of his right foot by the Illawarra Radiology Group. This scan revealed a rupture or fracture dislocation of the Lisfranc ligament of the right foot with lateral subluxation of the bone of the metatarsal region. The scan also revealed multiple small fracture fragments and an ossific fragment suggestive of trauma to the third tarso-metatarso-phalangeal joint with slight subluxation of the fourth and fifth metatarsal bases. Advanced osteoarthritis in the first meta-tarso-phalangeal joint was also noted. 25On 22 July 2008, the plaintiff attended the fracture clinic at Wollongong Hospital and was then referred to and examined by Dr Yiu-Key Ho, an orthopaedic surgeon. Dr Ho diagnosed a Lisfranc fracture dislocation in the right foot that occurred 8 weeks earlier and which had been missed when the plaintiff was first x-rayed. Dr Ho referred the plaintiff to a foot and ankle specialist for further management. 26On 25 July 2008, at the referral of Dr Ho, the plaintiff saw Dr David Lunz, an orthopaedic surgeon specialising in foot and ankle problems. Dr Lunz confirmed a missed fracture of the Lisfranc joint complex of the right foot. Dr Lunz recommended fusion surgery to treat that injury as 2 months had passed since the injury and there was minimal chance of a successful reduction and restoration of normal joint alignment without surgery at that time. 27On 29 August 2008, at the Prince of Wales Private Hospital, the plaintiff underwent the surgery recommended by Dr Lunz. The first, second and third TMT joints and the first MTP joint were fused as had been planned. He subsequently wore a non-weight bearing cam boot. Orthotics, physiotherapy, podiatry and custom footwear were recommended. Dr Lunz was of the view that the need for the plaintiff to wear orthotics and modified footwear would be lifelong. He also thought the plaintiff was at risk of developing arthritis in the other joints of his right foot because the fusion placed increased stress on adjacent joints. 28On 16 September and on 13 October 2008, at the referral of Dr Lunz, the plaintiff saw Mr Bruce Overton, a physiotherapist for the fitting of a protective short leg cast, and later for the fitting of a post-surgical boot by an orthotist. At that time the plaintiff was mobilising using a single left crutch. 29On 19 November 2008, at the request of Dr Lunz, the plaintiff underwent further radiological scanning of his right foot. The report described the surgical arthrodesis and indwelling hardware, and confirmed that the fusion had been successful. 2009 30On 24 November 2008 the plaintiff was reviewed by Dr Lunz, who suggested that the plaintiff begin using normal footwear without the cam boot. He was advised to use spacers to keep his right toes apart and to obtain special shoes. 31On 9 February 2009 Dr Lunz noted that the plaintiff reported difficulty walking long distances and that his foot was swollen. Orthotics were then suggested when Dr Lunz saw the plaintiff again on 21 May 2009, stiff-soled rocker shoes were recommended to assist the plaintiff to walk. At this time Dr Lunz discharged the plaintiff from his care. 32On 26 October 2009, at the request of his solicitor, the plaintiff was examined by Dr James Bodel, an orthopaedic surgeon. Dr Bodel noted a history from the plaintiff of an absence of right foot problems apart from an awareness of an arthritic process in the metatarsophanlangeal joint of the right great toe. Dr Bodel noted a restricted range of right ankle movements in the plaintiff's arthrodesed right great toe. He expressed the view that the prognosis was guarded, and that the plaintiff will have indefinite pain, weakness and stiffness in his right foot and that his ability to lead a normal life has been significantly impaired by the effects of the injury in question. 33On 27 October 2009, at the request of the Motor Accidents Authority, the plaintiff was examined by Dr Julien Ginsberg, an orthopaedic surgeon. He was of the opinion that the plaintiff's injury had been complicated by weight bearing and the non-reduction of the fracture dislocation that had not been reported in the initial x-ray taken on 30 May 2008. Dr Ginsberg stated: "12. Work status: In your opinion as a result of the injuries sustained in the subject MVA does the claimant had [sic] an incapacity with respect to his earning capacity/gaining employment, in particular is the claimant fit for full time work duties compatible with his relevant education and training without restriction? Please comment on same. It is certainly not (sic) to be expected that following his Lisfranc fracture dislocation and surgery that he is not able to walk for long distances nor is he able to stand for long periods, in view of the tendency for the foot to swell he should take the necessary precautions when flying and travelling for long periods, that is he should be wearing surgical hose, he should always wear the appropriate surgical footwear and orthotics." 34On 26 November 2009, at the request of his solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad described the plaintiff's fracture dislocation as a substantial one, which had left him with ongoing pain and stiffness and a valgus deformity in the fused mid-metatarsal region of the right foot. Dr Conrad identified a range of treatments and assistance, and said that the plaintiff had an uncertain prognosis. 2010 35On 8 January 2010, Dr Lunz provided a report to the plaintiff's solicitor. At that time he thought the plaintiff's prognosis was good but he had not seen the plaintiff since 21 May 2009. He noted the risk of the plaintiff developing arthritis in the adjacent joints in the years to come. 36On 23 February 2010, the plaintiff was examined by Dr John Carmody, a consultant Neurologist. The focus of the consultation was the plaintiff's slowly worsening distal bilateral paraesthesia involving the soles of his feet. This was diagnosed as being mild distal sensory peripheral neuropathy, an unrelated condition. No active treatment was recommended. 2011 37On 11 January 2011, at the request of his solicitors, the plaintiff was re-examined by Dr Bodel, who confirmed his earlier findings on examination He recorded that the plaintiff still complained of pain, stiffness and swelling in the right foot and difficulty standing and walking because of aggravation of the pain. He also observed that the plaintiff's fourth toe was now crossing underneath the third toe, which was causing him some extra difficulty. He expressed a guarded prognosis because of the nature of the injuries. 38On 16 February 2011, at the request of his solicitor, the plaintiff was re-examined by Dr Conrad. Dr Conrad reported that the plaintiff's condition had remained unchanged since the previous examination in 2009, and he noted the plaintiff's ongoing complaints of pain and stiffness in the right foot, with a tendency for the foot to swell. He reported difficulty with activities such as walking, standing, negotiating stairs, sitting and driving. Dr Conrad reported that his examination of the plaintiff revealed him to have very little movement in the toes of his right foot. 39On 1 March 2011 the plaintiff underwent radiological examination of his lumbar spine, his pelvis and left hip. This was at the request of Mr Michael Ward, a chiropractor. The findings on that examination revealed a minor lumbo-sacral scoliosis, some minor spondylosis and facet joint arthrosis. Minor osteoarthritis was noted to be present in the left hip. 40On 15 March 2011, Dr Turner referred the plaintiff to Dr Horsley, an orthopaedic surgeon. Dr Horsley saw the plaintiff on 28 March 2011 and noted the plaintiff had moderate arthritis in the left hip. Dr Horsley did not recommend left hip replacement surgery at that time. He had replaced the plaintiff's right hip some 5 years earlier. 41On 21 June 2011, at the request of his solicitor, the plaintiff was examined by Mr Stewart Hayes, a podiatrist, for the purpose of biomechanical gait analysis. Bilateral rigid foot function was diagnosed, the right foot being worse than the left. Orthotics and a plan of management was identified. 42In July 2011, at the request of the solicitor for the defendant, Dr Ginsberg provided a commentary on the plaintiff's "current" problems. He did so in answer to a letter which was not in evidence. Dr Ginsberg said he found it difficult to concede that the plaintiff's left hip problems had occurred due to increased usage following the right foot injury. Dr Ginsberg's opinion was not supported by detailed reasons, and there was no acknowledgment of the Expert Witness Code. 43Dr Turner saw the plaintiff again on 25 November 2011, 17 and 24 January 2012, and 8 February 2012. A referral was made to Dr Cadden, at Wollongong, concerning the ongoing problems the plaintiff was experiencing with his feet. 2012 44On 8 February 2012, the plaintiff underwent further radiological scanning. The surgical hardware in the right foot was described as being intact and the fusions were described as being solid. Various sites of degenerative change in the foot were identified, as well as partial fusion between the bases of the second and third toes was described. Significantly, there was mild anterior subluxation of the proximal phalanges of the second, third, fourth and fifth toes. Some degenerative changes were also noted in the left foot. There was no indication that the x-ray changes seen in the left foot were symptomatic. 45On 15 February 2012, at the request of Dr Turner, the plaintiff consulted Dr Anthony Cadden, an orthopaedic foot and ankle surgeon. This consultation was a follow up consultation. Dr Cadden had apparently seen the plaintiff some two years earlier. There were no reports from Dr Cadden tendered in evidence concerning those earlier consultations. Dr Cadden noted the plaintiff had continuing swelling in the right foot, with decreased sensation in the foot, and the presence of solid fusion. He also noted a likely area of incomplete fusion between the bases of the first and second metatarsal region. Dr Cadden stated that the plaintiff's ongoing right foot pain was not an unexpected consequence. He also noted that the plaintiff's underlying neuropathy was confounding some of his other symptoms of pain and swelling in the right foot. 46On 15 February 2012 at the request of his solicitor, the plaintiff was examined by Dr Conrad for a third time. On this occasion Dr Conrad stated that the plaintiff's condition had deteriorated. In addition to the ongoing complaints of pain and stiffness in the right foot and ankle due to his hindfoot fusion, and irregular gait, the plaintiff had developed pain and stiffness in his left hip. X-rays of that hip revealed prominent degenerative changes. Dr Conrad also stated that the changes in the plaintiff's gait have produced a secondary right knee strain and substantial activation of symptoms in the plaintiff's arthritic left hip. 47Dr Conrad noted that the plaintiff had seen Dr Horsley, an orthopaedic surgeon, who had foreshadowed an eventual hip replacement procedure. 48On 1 March 2012 Dr Horsley saw the plaintiff, again at the request of Dr Turner, 6 years post right hip replacement surgery. Dr Horsley noted the plaintiff reported intermittent symptoms of osteoarthritis in the left hip but thought the pain was manageable at that time. He noted that the plaintiff had gained weight in the previous 12 months and suggested weight loss and regular exercise. 49On 2 April 2012, the plaintiff was assessed by Mr Donald Scott, a podiatrist, who confirmed the ongoing need for podiatry treatment as well as for orthopaedic footwear to accommodate his maligned foot. 50On 15 November 2012, at the request of his solicitor, the plaintiff was seen by Dr Conrad for a fourth time. On this occasion the plaintiff's earlier complaints were noted to have continued, but the plaintiff had by this time also developed pain and stiffness in his right knee. Dr Conrad's recommendations for future treatment and other assistance will be examined in the context of the assessment of the claimed heads of damage. 51On 18 December 2012 the plaintiff was re-examined by Dr Ginsberg, this time at the request of the defendant's solicitor. In his report of the same date, which was not objected to despite the absence of an acknowledgment of the Expert Witness Code, Dr Ginsberg commented on the claimed connection between the plaintiff's right foot injury and the deteriorated condition of the left hip. He cast doubt upon such a connection, in the following terms: "In essence, this claimant has suffered a severe injury to his right foot which has caused him a lot of grief, but once again I must opine that there is no medical evidence at all to endorse the fact that his left hip arthritic condition is as a result of his motor vehicle accident. I do opine that his left hip condition would have progressed, as it is progressing, had he not had the accident. His last hip x-ray, which was performed on 8/2/12 at Corrimal at the Illawarra Radiology Group, demonstrated that there were moderately prominent degenerative changes in the hip joint with some generalised narrowing, more prominent superolaterally . No other abnormalities are seen in the left hip. A total hip replacement prosthesis is present on the right. The prosthesis appears to sit well in the acetabulum and abnormal lucency is seen around the visualised aspects of the prosthesis. No focal lesions are seen in the bony pelvic girdle and the girdle appears fairly symmetrical. It is pertinent to note that examination of his left hip today revealed almost symmetrical ranges of movement, ie both hips demonstrated 110° of flexion, he had no internal rotation in the right hip whereas he had 15° in the left, external rotation to 30° right and 40° left, abduction 30° both hips, and adduction 25° right and 30° left. From this examination today, my clinical impression is that, with an almost normal gait and with his ability to rise from a seated position and also not experiencing severe discomfort during examination of his left hip, his left hip does not require surgical intervention at this stage. Once again, I need to emphasise the fact that I do not believe that the deterioration in the left hip is related in any way to the fracture dislocation of his right foot. He shows a normal predilection for arthritic hips and I therefore stand by my original statement that his left hip arthritis would have occurred anyway whether he had a injury to his right foot or not."

Disabilities 52I have accepted the plaintiff as a credible witness in respect of his injuries and disabilities. I am satisfied that the medical practitioners who have provided reports following their examinations of him, have accurately summarised the complaints he made to them. I therefore take those unchallenged summaries to be evidence of his injuries and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. 53The plaintiff still has surgical fusion hardware remaining in his right mid-foot, and he has related, but well healed surgical scarring. He has residual stiffness and weakness of the right foot. He has a fusion of the medial 3rd tarsometatarsal joints of the right foot. He has subluxation of the 3rd, 4th and 5th toes of the right foot. His foot is deformed and mal-aligned. He has swelling, pain and discomfort in his right foot. He has degenerative changes and arthrodesis in metatarsophalangeal joint and the interphalangeal joint of his right great toe, with some flexion deformity. Some of the observed degenerative changes in that area apparently pre-dated the subject injury. 54The plaintiff is at risk of developing osteoarthritis in other areas of his right foot. He has pain and restriction of movement of his right foot, as well as reduced physical dexterity. Long term, the plaintiff must wear orthotics and specially made footwear. 55As a result of alterations to the plaintiff's gait, and after the surgery to his right foot, he has developed pain and stiffness in his left hip and in his right knee. He has difficulty with prolonged standing, walking and with going up and down stairs. He experiences a pressured feeling in his right foot when he walks. He has difficulty negotiating uneven ground and easily loses his balance. He had no such difficulties before the subject accident. In arriving at this conclusion, I have preferred the reasoned opinions of Dr Conrad to the sparsely reasoned opinion of Dr Ginsberg. I have also placed greater weight on Dr Conrad's views because they have been offered in the context of his acknowledgment of the Expert Witness Code, which gives greater confidence in their reliability where there is no logical basis upon which to doubt the reasons he has expressed for his opinions. 56The plaintiff has gained weight due to his less dynamic and reduced levels of physical activity. He has difficulty bending and has limited flexibility. He has reduced mobility and agility, and he has difficulty getting up because he is less able to pivot on the toes of his right foot. He is less able to sit and concentrate for prolonged periods due to discomfort and swelling in his right foot. This has had some adverse impact on his work productivity. He has been described by someone who knows him well as bring frustrated by his accident related physical limitations. 57There is unchallenged orthopaedic opinion to the effect that the plaintiff's ability to lead a normal life because of his accident related foot problems has been significantly impaired. He needs assistance with his domestic tasks indefinitely. If it were not for the subject accident, the plaintiff would not have had these problems. He faces the possibility of future surgical treatment, as well as the need for medical and allied treatment. 58Although the plaintiff also has some slow onset mild and unrelated distal sensory neuropathy involving the soles of his feet, this has had no impact on his accident related disabilities.

Mitigation 59The plaintiff had a duty to take reasonable steps to mitigate his situation both with regard to seeking treatment for his disabilities and with regard to his loss of earning capacity in connection with his claim for damages: s 136 of the MAC Act. There was no suggestion that there had been a failure on the plaintiff to fulfil that obligation.

Issue 1 - Circumstances of the accident 60The evidence of the circumstances of the accident was, to a degree, in a state of confusion and requires some analysis for the purpose of ascertaining, on the balance of probabilities, what is most likely to have occurred in the events of the accident. In order to understand and resolve that confusion, which arose from the plaintiff's recollection of the particular terminal at which the accident had occurred, it is necessary to review the oral evidence given by the plaintiff and the chronological sequence of the plaintiff's earlier statements touching upon the issue of liability.

Plaintiff's oral evidence on the liability issues 61The plaintiff described the roadway outside Terminal 2 as comprising 2 lanes. The plaintiff said he had looked to his right before commencing to cross. At that moment he said he saw no vehicles either approaching from his right or present in those lanes. At that time he had not stopped walking towards the kerb. He was still stepping forward but he was still on the kerb. He then took a step forward with his right leg, followed by his left leg, and in that continuum, very shortly after he had stepped off the kerb, he was struck from the right by the mini-bus. 62The plaintiff said that the mini-bus had come to the point of impact from an angle towards the kerb: T17.21. He clarified this by agreeing that he had not seen the mini-bus before it had struck him and he had no idea as to where it had come from: T67.24 to T 67.39. It is plain from that evidence that the plaintiff had assumed the vehicle had been driven at an angle to the kerb by reference to the position the vehicle was in at the time it had become stationary. In my view, the plaintiff's observation of the mini-bus having travelled towards him at an angle to the kerb was arrived at following a reasonable reconstruction analysis that he had undertaken some time later when he had revisited the scene in order seek an understanding of what had happened in the events of the accident: T68.1 to T68.5. The plaintiff's observation of the position of the mini-bus after the collision being at an angle to the kerb was based on his recollection, and was not a reconstruction. 63After the collision, the plaintiff had not noticed any names or signs on the mini-bus. The driver had approached him and had said to him words to the effect "I did not see you". The plaintiff made no immediate note of the registration details whilst the vehicle remained at the scene. Subsequently, he did not obtain any particulars from the driver of the mini-bus before it left the scene. 64Apart from the driver then running back to the mini-bus to get the plaintiff a box of tissues, and then later asking the plaintiff if he was okay, there was no other inter-action between the plaintiff and the driver. After the driver had given the plaintiff the box of tissues he then ran back to the mini-bus. At that time the plaintiff did not have it in mind that he should immediately seek to record the particulars of the vehicle or its driver. He was instead pre-occupied with wiping away the blood on his leg. In those events, and within a short space of time, when he next looked up from doing so, he noticed that the driver and the mini bus were no longer at the scene. 65According to the plaintiff's recollection, the mini-bus made no appreciable noise as it approached and then struck the plaintiff. The mini-bus was white, and carried no passengers at the time of the accident. The ordinary pick-up point for mini-bus passengers was apparently some 150-200 metres to the plaintiff's left of where the impact occurred. 66Some photographs of the accident scene were tendered: Exhibits "C", "D" and "F". These photographs were taken on an unspecified date after 27 March 2009. Exhibit "F" showed the presence of a boom gate located to the right of and opposite to the accident scene. The plaintiff was unable to say whether that boom gate was in that location on the day of the accident: T18.10. Other evidence indicated that the boom gate was in that location at the time of the accident, but that it was not operational, and was always in the open or upright position and never blocked: T198.40 to T199.6.

Claim form completed by plaintiff 67In the claim form the plaintiff completed on 30 October 2008, some 5 months after the accident, he gave the following very brief account of the event: "Was collided into by mini-bus or van in pick up area of Terminal 3, Domestic Airport, Mascot." 68There was nothing in that description in the claim form which conflicted with the plaintiff's oral evidence, apart from the mis-identification of Terminal 3 for Terminal 2, which is explained in the paragraphs that follow.

Interview of plaintiff by defendant's investigator 69On 27 March 2009, some 10 months after the accident, the plaintiff was interviewed by an investigator who was acting on behalf of the Nominal Defendant. The transcript of the recording of that interview showed that it was somewhat rambling, and in parts, to a degree, it appeared unstructured. The transcript included references to some non-transcribed portions of the plaintiff's answers. In their last written submissions dated 17 June 2013, the parties took the common position that nothing turned on those un-transcribed portions. An extract of that transcript follows: " ... PG: Yeah. The um, the event itself occurred on the 30th of May 2008, I'm reading off the claim form, about 2:30pm Terminal 3 at the Domestic Terminal, which is ah the Qantas Terminal. YR: That's correct. PG: Okay. I appreciate I've read collided with by mini-bus or van in the pick up area at Terminal 3. YR: It was more, it was more like a mini-bus I think. PG: Okay, can I get you to describe what happened and then we can, I can see where I need to elaborate on that. YR: Okay. Ah I had ah parked my car in, in one of those ah zones the you know limited time zone, ah there's, how can I explain it. In Terminal 3 there's like three different lanes ah there's an inside lane where the ah taxis and, and ah mini buses and so on ah pick up and drop off people. There's another lane next to that where I think they, they can go through, from my memory, this is in my memory and then there's a third lane only for people who are not in either one of those categories. (Mr Gilbert's telephone rang) PG: Excuse me. Sorry about that. YR: That's alright I should turn my phone off too. Ah so, so basically the inner lane is, is what I think it's 30 kilometres an hour, it's a very, it's you know this car basically ah ah it's private cars are not allowed in that inner lane okay? PG: Right. YR: Ah so I had been out, further out, I came walking into the Terminal to look to see I was picking somebody up to see ah where they work as they, they had not arrived yet and the plane was just oh landing then. So I walked out to go back to my car ah to wait for them at the car. I, I, I, there was no, no cars parked along that area because you're not allowed to park. Ah I, I think from my memory the road curved slightly you know when it comes around there. And so I walked I, I, I started to walk off, off the sidewalk, I looked to my right before I walked off and then I took a step out and then I saw, suddenly saw this white mini-van or mini-bus and it hit me. It happened very, very fast. At the time, before it hit me, I stepped back ah and, and I got hit with um sort of got clipped here, my foot got caught under the front tyre. Ah I ended up on the sidewalk, that's how close I was to the sidewalk ah, ah I landed on my, my watch broke, this wasn't the watch I was working, ah wearing, and I got um blood coming off my leg, my leg that hit the sidewalk was all you know bruised and, and lots of blood coming off. Ah then what happened was, I, I was obviously in shock ah my foot, the tyre was just on this, right here sort of on the foot but my foot was able to come out from under the tyre, so I pulled the foot out. I got up, the guy came running out from the ah from the mini-bus and he said to me ah I didn't see you and he said are you okay. I said, I said, and he ran back in and he got a whole bunch of tissues, gave me the tissues, I wiped all the blood off. He said are you going to be okay and I said yeah ah I said I feel okay and so I just ah he just ah ah I, I then walked off and he drove off and I went to my car, and I waited there for the, the person to arrive and he, he arrived and the first thing he said to me looks like you've been hit by a car, I said yeah, and he said ah that's why there was blood but he said, I said I'd like to go ah to the hospital, because I want to check out the ah my foot's still hurting ah and it's getting swollen and I want to check it out. So we went back to, I used to teach in the University of New South Wales, so I knew the ah Prince of Wales Hospital, so I went to go there and then I realised there was a family that, to wait in emergency I didn't feel like waiting in the emergency for a few hours, there was a family ah medical clinic around the corner there on High Street, so I went in there and um and, and saw him in around a half an hour and he sent me off for an x-ray and went off and yeah, okay. PG: Okay. YR: So I, I did something about it immediately. PG: Sure. YR: I mean ah ... PG: Okay. YR: ... and the fact was I didn't think it was serious and I didn't take ah, I mean the other thing was ah to be honest I was somewhat in shock but during that period I look back on it because I, you know, as you probably know I'm a Lawyer and I'm, I'm amazed if I give anybody advice I would take down the licence plate, the driver's licence and everything. I just didn't even think about it. I just thought it was this minor, it was a minor injury and I wasn't hurt so ah I just walked away and actually I didn't even think about it ah for a while until I really found out later on weeks later ah that it was really serious." 70During the interview with the investigator, the plaintiff expressed some misgivings about the discussion on liability related events concerning the description of the particular Terminal where the accident had occurred. The interview had proceeded on the erroneous assumption that the accident had taken place outside Terminal 3. 71In his oral evidence the plaintiff stated that in order to resolve that confusion in his own mind, on an unspecified date (T11.5) he attended at Terminal 3, and then Terminal 2 on his own. Later, he attended Terminal 2, with his solicitor, Mr Ian Bryden (T11.35). He did so to clarify his recollection of where the accident had occurred. 72In my view, no criticism of the plaintiff's credit arises from those measures taken by him in his attempts to ensure that his testimony was accurate. 73Whilst it is true that the plaintiff's statement taken by the Nominal Defendant's investigator makes no mention of the mini-bus having travelled towards the plaintiff at an angle, or of the mini-bus having come to a halt at an angle to the kerb, as described in the plaintiff's oral evidence, I do not regard such omissions as being matters of significance to the assessment of the reliability of the plaintiff's testimony. 74This is because of the relatively unstructured nature of that interview, and the fact that it was not evidence on oath, and the narrative cited at paragraph [69] above was not given in the context where it could be explored by cross-examination on oath, an opportunity that was available in these proceedings. Furthermore, the plaintiff's explanation in the statement that the roadway in question was slightly curved, could possibly explain why the vehicle in question ended up at an angle to the kerb. In those circumstances, I do not consider the plaintiff's account recorded by the investigator to be materially inconsistent with the plaintiff's oral evidence.

Plaintiff's statement prepared with the assistance of the his solicitor 75On 27 July 2010, with the assistance of his solicitors, the plaintiff prepared a Statutory Declaration for the purposes of providing an explanation to the Nominal Defendant for the delay in bringing his claim. The declaration included the following text: "8. On 30 May 2008 I went to the Sydney Domestic Airport at Mascot to pick up a man named Leo Angart who is a consultant associated with a business which my former de facto wife and I operate which is separate to my legal and writing endeavours. I drove my car to the airport, I parked outside the arrivals terminal which is the downstairs section of the terminal. It was my intention to go into the terminal to check on the arrival of the flight and then go and move my car into the car park. 9. I parked my car adjacent to the traffic island which is immediately outside the terminal. That meant that I had to cross a couple of lanes of traffic to go in and check on the arrivals. I did that. I discovered that the flight I was waiting for had just landed and so I decided that I would see if I could wait outside the airport for Leo to arrive. I decided to go back to my car and wait and see if it was alright to leave my car where it was. 10. I left the terminal and made my way across the footpath intending to cross the road to go back to my car. As I reached the edge of the footpath and went to step onto the roadway I realised that a white mini bus was in the lane adjacent to the footpath driving almost in the gutter. I went to step back out of his way but I was unable to. As the bus driver pulled the bus to a halt it came to rest with its nearside front tyre on my right foot, I fell back onto the footpath and instinctively pulled my foot out from under the tyre. My left elbow was grazed and was bleeding. I broke my watch and I also grazed my left leg. 11. The driver of the bus came to my aide. He went and got some tissues to arrest the bleeding. He said "I didn't see you, do you need any help?". 12. I was very shaken up. I said "I think I am okay". I got myself up off the ground and the bus driver got back in his bus and drove off. I went back to my car and looked after my grazes and Leo arrived shortly afterwards. 13. At the time of the accident I had some grazes and some bleeding and my foot was a bit numb and a bit sore but I really thought that I was okay. As I said I was shaken up. I thought that I was going to be alright, it all happened in a matter of minutes and it did not occur to me to get the registration number of the bus in the state that I was in. It was a small white mini bus of the sort that you see at airports all the time. 14. I drove to Prince of Wales Hospital intending to attend the emergency department but there was a family medical centre which was across the road and so I went there. I saw Dr Robert Mundell. I had an x-ray. He told me that I had a small fracture in my foot and that I would be okay. 15. Prior to the accident I had made arrangements to travel overseas on approximately 5th of June to Los Angeles and then around the world. I thought I would be alright to travel and so I didn't change my plans. I left Australia on approximately 5th of June 2008 and returned on approximately 5th of July 2008." 76Whilst the statement of the plaintiff taken by his solicitor contains additional material to the statement given by the plaintiff to the Nominal Defendant's investigator, namely that the mini-bus was almost in the gutter just prior to the collision, and at paragraph 12, where no reference was made to the driver having attended to the plaintiff and obtained a box of tissues to assist the plaintiff with his bleeding leg before driving off, a matter more fully dealt with in the plaintiff's oral evidence than in his statement to the investigator, I do not see those matters as detracting from the plaintiff's credit or from the reliability of his testimony. The statement dated 27 October 2010 was principally aimed at explaining the delay in bringing the claim, and whilst it contained an account of the underlying events, it was not at that time intended to comprise the full content of the plaintiff's evidence on the liability issues.

Findings on disputed factual circumstances of the accident 77Despite the identified elements of confusion as to the factual circumstances, I accept that the plaintiff made earnest endeavours to be accurate and truthful in giving his evidence. I do not accept, as was put to the plaintiff by counsel for the Nominal Defendant, that he was "making up" his evidence as he went along: T84. 78Taking the entire material into account, in my view, there is an essential consistency, or no material inconsistencies, between the separate accounts of the facts of the accident provided by the plaintiff. I consider that to the extent there are differences in those accounts, those differences are not material, and do not justify or sustain the defendant's attack upon the plaintiff's credit to the effect that he was making up his evidence as he went along. My impression of the plaintiff's efforts at recounting the events did not accord with the assumed basis of that attack. 79In coming to my conclusions on those matters I have had regard to the manner and content in which the various statements and accounts of events have evolved. At the scene the plaintiff, who was shaken up by the accident, initially dismissed the event as not being all that serious. Soon afterwards, when he sought medical attention and had the interpretation of the x-rays, albeit erroneously, explained to him, he was justified in thinking the injuries would resolve in a matter of weeks. It was only when he returned from a pre-planned overseas trip that he came to a different understanding as to the seriousness of his foot injury. That conclusion that was only open to him because of the effects of the passage of time on the medical advice he had earlier been given. It was in that context that he sought to make the present claim for compensation for those injuries. 80In those events, the claim form, which contained only a brief statement of the facts, was signed and provided by the plaintiff on 30 October 2008, some 5 months after the accident. Aside from the erroneous reference in that statement to Terminal 3, there is no material inconsistency between the account in the claim form and the plaintiff's testimony given in the proceedings. 81Understandably, the Nominal Defendant arranged for an investigator to interview the plaintiff on 27 March 2009. At that time, that statement did not have the same characteristics of sworn and focussed oral evidence open to be explored in the same way as the oral evidence given in these proceedings. In those circumstances, I do not consider the plaintiff's oral evidence to have been at all embarrassed by the content of that statement. 82As a result of an element of confusing ambiguity, which arose during that interview with the investigator on 27 March 2009 concerning the actual Terminal at which the accident had occurred, understandably, the plaintiff set about seeking to clarify that confusion. This resulted in him visiting the scene, first by himself, and then later with his solicitor, and then providing his statement dated 27 July 2010. I do not consider those events as undermining the credibility or the reliability of the plaintiff's oral evidence given in these proceedings. 83It is against that background of analysis that I now set out my findings on the factual circumstances of the accident. 84At the time the plaintiff walked from the terminal towards his parked vehicle he thought that the kerbside lane of the adjacent roadway was unavailable to motor vehicles for the purposes of setting down or picking up passengers. The evidence of the airport employee identifying the roadway as comprising a parking lane and a through lane was not necessarily in conflict with the plaintiff's account in this regard because the plaintiff's description of parking restrictions in that lane was not contradicted. 85I find that as the plaintiff walked towards the kerb outside Terminal 2, and before entering onto the roadway from the kerb to walk to his vehicle, he had looked to his right, and at that time he did not see any vehicles approaching from that direction. I find that he then looked away from his right, and he then looked ahead as he continued walking towards his vehicle. At the time when the vehicle made its approach on the curved roadway, and at an angle to the kerb, the plaintiff was no longer looking to his right. In my view, this explains why he had not seen the vehicle approach, notwithstanding that the plaintiff had an unobstructed view to his right: T67.43. 86At that time, just before stepping off the kerb, the plaintiff continued to walk forward and placed at least one, if not two, feet onto the roadway, leading with his right foot. He undertook that manoeuvre as a continuum without stopping before entering onto the roadway. 87Exhibit "E" is a plan of the roadway in question. It identifies a curved or angled section of the roadway near traffic islands at the location of the boom gate. The photograph comprising Exhibit "F" assists in understanding the plaintiff's evidence that the roadway was curved at one point. 88That evidence assists in assessing the plaintiff's evidence that he looked to his right with an unobstructed view and saw no vehicles approaching before he commenced to cross onto the roadway. When the location of the traffic island is considered, it is apparent that vehicles entering the Terminal roadway to get to the kerbside would have to be driven at an angle to the kerb in order to get to the kerbside. In my view, this explains why the plaintiff did not see the vehicle that hit him until immediately before impact when it was too late for him to stop or step back because his legs were in motion. It also suggests that in the moment between when the plaintiff looked away from his right and when he was hit, the vehicle had approached relatively quickly, although on the evidence its actual speed is not capable of being estimated. 89I find that at that time, the vehicle then approaching the plaintiff on his right continued to move forward towards the plaintiff and at an angle to the kerb. The front fender of the vehicle then struck the plaintiff somewhere on his right, probably on his right lower leg before the plaintiff had an opportunity to either stop walking forward, or to step backwards. In those events, the plaintiff's right foot was crushed under the front passenger wheel of the vehicle, and the plaintiff was momentarily pinned in that position until he was able to withdraw his foot from underneath the tyre of that wheel. In those events the plaintiff fell backwards onto the sidewalk. In those events he received his lacerations, bruises and abrasions, and the later detected Lisfranc fracture of his right foot.

Issue 2 - Alleged negligence of the driver of the unidentified vehicle 90The question of whether or not the driver of the vehicle that struck the plaintiff was negligent must be determined according to the requirements of s 5B and s 5D of the CL Act. 91Broadly stated, the duty of a driver of a motor vehicle requires the exercise of reasonable care to control the speed and direction of travel of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events: Manley v Alexander [2005] HCA 79; 223 ALR 413, at [12]. 92In the context of this case, at the time of the accident, it must have been foreseeable to the driver of the mini-bus that there would be pedestrian traffic walking from the kerb of the Terminal and onto the roadway towards the car park, or towards vehicles parked in the near vicinity: s 5B(1)(a) of the CL Act. In the context of the roadway being adjacent to an airport terminal, the risk of injury to pedestrians in such circumstances was not insignificant as the driver of the mini-bus ought to have anticipated that pedestrians would walk onto the roadway: s 5B(1)(b) of the CL Act. 93The driver would also have been aware, as was described by the plaintiff, that in the vicinity of where the plaintiff had stepped onto the roadway, vehicles such as the mini-bus were not permitted to stop to either pick up or set down passengers. At that time, given that there was no other traffic in the area, there would appear to have been no reason for the mini-bus to have travelled so close towards the kerb at an angle close to the kerb with its front passenger side wheel located in a position that was almost in the gutter at the accident scene whilst the plaintiff was showing signs of commencing to cross the road at that point: s 5B(1)(c) of the CL Act. 94If reasonable care was not taken towards pedestrians in the area in question, there would be a heightened risk of injury to pedestrians using the area, and that serious harm could be occasioned to a pedestrian if a collision with a vehicle had occurred in that vicinity: s 5B(2)(a) and s 5B (2)(b) of the CL Act. In those circumstances it was incumbent upon drivers to take reasonable care to avoid injuring pedestrians, and the taking of such care should not be seen as being unduly burdensome in those circumstances: s 5B(2)(c) of the CL Act. The social activity of driving should not be at the expense of unreasonably exposing pedestrians to the risk of injury: s 5B(2)(d) of the CL Act. 95The evidence makes clear that if the driver of the unidentified vehicle had been keeping a proper and anticipatory lookout, as explained in Manley v Alexander, he would have had an unobstructed view of the plaintiff walking on the pavement and towards the edge of the kerb without indications of the plaintiff showing signs of showing down or stopping before stepping off the kerb. 96In those circumstances, the driver of the vehicle would have had no reason to, without warning, steer a course across the kerbside lane and towards the kerb, and towards the plaintiff in a collision course as the plaintiff was stepping off the kerb. This is so particularly as the driver would have been able to see that the plaintiff was no longer looking to his right as the vehicle made its approach towards where the plaintiff was located. 97I find that the actions of the driver of the vehicle in taking the course that he did, and in that manner, amounted to a breach of the duty of care he owed to the plaintiff and that therefore this amounted to negligence according to the assessment template provided by s 5B of the CL Act. 98In my view, a driver acting prudently in those circumstances would have avoided the collision by steering a course that did not take the vehicle in an angled path and into such close proximity to pedestrian traffic near the gutter, especially since that driver had no reason to either park, pick up, or set down passengers at that immediate location. Additionally, a prudent driver would have sounded a warning on the plaintiff, and applied the brakes earlier, and with greater force, to avoid a collision. 99Whilst the evidence does not accurately describe the speed of the vehicle, I infer from the fact that the driver was able to bring the vehicle to a stop with its front tyre on the plaintiff's right foot, that an earlier and more timely application of the brakes, the accident would have been avoided: s 5D of the CL Act. 100This is especially so where, if the driver had been keeping a proper lookout, he would have been able to see that the plaintiff was no longer looking towards his right, and was clearly intending to continue to walk onto the roadway in an area where it was reasonable to anticipate the presence of pedestrians. The circumstances were very different to an intersection or a standard roadway with an adjacent footpath where pedestrians had less reason to be on the roadway than was the case adjacent to an airport terminal, which was a shared roadway: T181.36 to T181.43. There was no evidence that pedestrians were not permitted in that area.

Issue 3 - Alleged contributory negligence by the plaintiff 101The Nominal Defendant pleaded the following allegations of contributory negligence against the plaintiff: (a)Failure to keep a proper lookout; (b)Walking into the path of the Defendant's (sic) vehicle; (c)Failure to have regard to the presence of motor vehicles in and about Terminal 3 (which on the evidence should be taken to be a reference to Terminal 2); (d)Failure to cross the roadway at pedestrian crossing available to the plaintiff and other pedestrians within a reasonable distance of the scene of the accident. 102On behalf of the Nominal Defendant, it was submitted that the plaintiff's contributory negligence should be assessed at 60 per cent. On behalf of the plaintiff, it was submitted that there should be no reduction of his damages on account of alleged contributory negligence. In the alternative, on behalf of the plaintiff it was submitted that on the assumption of a finding being made that the plaintiff should have looked to his right again within a few seconds of having first looked to his right, there should only be a slight reduction of around 10 per cent on account of such contributory negligence. For the reasons that follow, I do not accept either of those submissions. 103As to the allegations of failure on the part of the plaintiff to keep a proper lookout, and the related allegations of walking into the path of the vehicle that struck him, and failure to have regard to the presence of vehicles in and about the terminal, I do not accept that the plaintiff had not properly kept an initial lookout. This is because I accept that he had first looked to his right and saw no vehicles approaching in the kerbside lane as he moved to the edge of the kerb to the point where he intended to enter upon the roadway. The plaintiff only became aware of the vehicle that struck him as he stepped forward onto the roadway, which suggests that he looked to his right again after looking ahead, but this was at a time when it was too late for him to avoid being struck by the vehicle. I consider that late recognition of the pressure of that vehicle was because of the angled approach of the vehicle from the feeder road around the traffic islands. 104However, that said, it is plain that the plaintiff failed to maintain a proper lookout as he proceeded onto the roadway. I consider that this failure occurred at the time when he ceased looking to his right and when he proceeded to step out onto the roadway. In my view, especially since all sections of the roadway in question was exclusively reserved for one way traffic and it was always foreseeable to someone in the position of the plaintiff that traffic could appear from his right at any time, which required that he maintain a lookout for traffic entering the area from his right, especially as there was no need for him to check for traffic approaching from either ahead of him or to his left. 105In those circumstances, I consider that a reasonable person in the position of the plaintiff ought to have had in mind the risk of traffic entering the area from his right, which required that he make further efforts to check for traffic coming from that direction whilst he was crossing: s 5R of the CL Act. This omission on the part of the plaintiff therefore requires a finding that there was contributory negligence on his part. 106As to the allegation that the plaintiff failed to cross at a pedestrian crossing that was within a reasonable distance from the scene of the accident, the evidence is that the pedestrian crossings were "a long way away" or about 150 metres away: T 130. 107In those circumstances, I consider that within the array of actions expected of a reasonable person in the position of the plaintiff, this would have included the chosen option of seeking to cross the roadway at that point as it was easier to get to his car, provided that he maintained a proper lookout of traffic entering the scene from his right: s 5R of the CL Act. I therefore do not accept that the plaintiff's failure to seek out and use an available pedestrian crossing some 150 metres away necessarily amounted to contributory negligence in the circumstances of this case. 108On the question of apportionment, the required evaluative exercise is to comparatively balance and determine the extent to which it is just and reasonable to reduce the plaintiff's damages on account of his own contributory negligence: s 5S of the CL Act; Podbrebersek v Australian Iron & Steel Pty Ltd [1885] HCA 34; (1985) 59 ALJR 529, at [8] and [10]. 109In weighing the respective culpabilities of the driver of the unidentified motor vehicle and that of the plaintiff, I consider that in this instance, the driver should bear a much greater blame for causing the accident. 110This is because the plaintiff's action in looking away from his right and thereby failing to take care for his own safety was in effect a single casual act of momentary inattention, in circumstances where he had already looked to his right and had decided that it was safe to cross. The plaintiff's consequential contribution to the accident occurred within a very short space of time over the course of him taking two further steps forward. 111This was not quite as simple as having just walked out in front of the vehicle as was put on behalf of the Nominal Defendant. This is because the collision occurred in very close proximity to the gutter. There was no reason for the vehicle to be driven to close to the kerb with pedestrians such as the plaintiff being in the immediate vicinity, and obviously by his movement intending to cross the road. 112In contrast, to the plaintiff's actions, there were successive failures on the part of the driver of the unidentified vehicle to adhere to the standard of reasonable care. These failures were, in order, whilst driving, failure to have regard to the plaintiff's direction of travel towards the roadway, failing to steer a course away from a potential collision with the plaintiff, changing direction in an angled manner towards the kerb and driving almost in the gutter, failing to observe that the plaintiff was not looking to his right as the vehicle approached, failure to adjust the speed of the vehicle to avoid a collision and failure to stop his vehicle in time to avoid a collision. These failures all occurred simply because the driver did not see the plaintiff in circumstances where he ought to have done so. He ought to have anticipated pedestrian traffic on the roadway adjacent to the terminal, including the possibility that pedestrians may not have necessarily been looking for approaching traffic or taking adequate care for their own safety. 113In terms of assessing the respective causative potencies of these actions, in my view, the driver's actions demonstrated a course of sequential careless driving compared to the plaintiff's single momentary act of inattention. In those circumstances, I consider that the negligence of the driver considerably outweighed the contributory negligence of the plaintiff. This justifies the driver of the unidentified vehicle bearing the far greater blame for the accident. In my view, the respective culpabilities ought to be apportioned as being 80 per cent to the driver of the unidentified vehicle and 20 per cent being to the plaintiff.

Issue 4 - Whether due inquiry and search for the unidentified vehicle 114The statutory framework within which this claim must be considered provides that if the owner or driver of a motor vehicle causing injury or death cannot be established, a claim for damages may be brought against the Nominal Defendant as if it were the owner or driver of the vehicle in question: s 34(1) and s 34(3) of the MAC Act. 115In order to protect the Nominal Defendant from fraudulent claims, as a condition precedent, a claimant is required to pursue due inquiry and search aimed at identifying the owner or driver of the unidentified motor vehicle: s 34(1AA) of the MAC Act. 116Simply put, the issue in this case is whether the plaintiff has shown that the identity of the vehicle would not have been established after due inquiry and search. 117In the context of this legislation, and its predecessors couched in similar terms, the phrase "due inquiry and search" has been considered and defined by appellate courts on numerous occasions. 118 In Blandford v Fox (1944) SR (NSW) 241, in giving the judgment of the court at p 245, Jordan CJ explained that due inquiry and search meant such inquiry as was reasonable in the circumstances, being as prompt and as thorough as the circumstances would permit, the inquiries being instituted before the scent became cold, pursuing all means that were reasonably practicable and in all quarters where there was a reasonable prospect of obtaining information. 119In more recent times, the requirement of making due inquiry and search has been formulated as placing greater emphasis on the obligation to make inquiries that were due in the circumstances. In considering the circumstances of the case, questions as to whether any failures on the part of a claimant to record identifying details of a vehicle were "understandable", "excusable" or not "unreasonable" are not determinative: Nominal Defendant v Meakes at [56]; Nominal Defendant v Browne [2013] NSWCA 197 at [10]. 120Overarching what might be considered to be due inquiry and search in a variety of factual scenarios is the truism that each case must depend upon its own circumstances: Nominal Defendant v Meakes, at [75], 121The defendant submitted that on an application of the binding authority of Meakes v Nominal Defendant, the plaintiff has failed to make inquiries that were due in the circumstances, thus indicating that the plaintiff's claim should be dismissed. 122In contrast, the plaintiff has submitted that the decision in Nominal Defendant v Meakes is distinguishable on a comparative analysis and it does not represent a barrier to the plaintiff's success in this case. In response to that submission the defendant argued there were no relevant distinguishing features that justified such a course. 123In order to deal with those arguments it is necessary to briefly revisit the factual circumstances that prevailed at the accident scene. 124The first observation to be made is that in its submissions the Nominal Defendant conceded on the evidence that a collision occurred between the plaintiff and a mini-bus adjacent to the arrivals hall of Terminal 2 of the Sydney domestic airport terminal. 125Following that collision, at no time during the events leading up to the driver of the mini-bus leaving the scene of the accident did the plaintiff have any reason to believe that the driver of the vehicle that struck him would not fulfil his legal obligation to remain at the scene for as long as was required to both render assistance to the plaintiff and to also provide particulars of himself and of his vehicle. 126In fact the indications were to the contrary: the driver candidly conceded to the plaintiff that he had not seen him before the collision; he asked the plaintiff about his well being; and he went to fetch a box of tissues to assist the plaintiff to stem his bleeding. It was whilst the plaintiff was tending to his bleeding that the driver left the scene without the plaintiff observing that he was doing so. At no stage did the plaintiff have the impression that the driver would seek to avoid his responsibilities as a motorist who had been involved in an accident. 127The Nominal Defendant has placed great emphasis upon the fact that the driver had left the scene at a time when the plaintiff was already standing on his feet and had been spoken to by a bystander who had apparently said to him words to the effect that he should have looked to his right. It was argued that in these circumstances the plaintiff should have been in a position to ascertain the registration number of the vehicle in question, and that he could have asked the driver to write down his details and the registration number of the vehicle before he left the scene. 128The factual difficulty with that argument is that at that time, the plaintiff, who was groggy and confused following the incident, was not certain as to what was said to him in that conversation because of what he had described as his loquacious way of speaking. The plaintiff was responding appropriately to the circumstances by attending to the mitigation of his bleeding at the time when the driver left the scene after having provided the plaintiff with a box of tissues. Those matters are not cited here as being understandable or reasonable excuses for the plaintiff not making inquiries at the time, factors determined in Nominal Defendant v Meakes, at [56], to involve erroneous considerations. Instead, those matters are simply identified as being part of the prevailing circumstances in which the plaintiff found himself. 129In those circumstances, the plaintiff had no notice that the driver was about to leave the scene of the accident, contrary to his legal obligation to remain at the scene to assist and to provide particulars. The plaintiff only ascertained that the driver had in fact driven away from the scene after he had looked up from tending to his bleeding wound. 130At that time it was too late for the plaintiff to do anything about identifying the vehicle or its driver. Furthermore, there was no evidence that persons who had been passing by at the time of the collision had remained at the scene and could have been in a position to take a note or an identifying photograph of the vehicle, or to record relevant identifying details from the driver. 131It is at this point that the question arises as to what inquiry and search was "due" in the particular circumstances: Nominal Defendant v Meakes, at [56]; Nominal Defendant v Browne, at [10]. 132In my view, at the time the plaintiff realised that the vehicle had left the scene he was in reality faced with the prospect of what Barwick CJ described as taking steps that would amount to no more than an unproductive ritual: Harrison v Nominal Defendant (1975) 7 ALR 680; (1975) 50 ALJR 330, at p 681- 682; p 331. In that sense, the trail was already effectively cold and without clues as to the identity of the vehicle or the driver, especially given that the events took place at an airport terminal where the pedestrian and vehicular traffic was very likely to have been transitory. This was unlike a setting with shops, houses or businesses located in the vicinity, where more permanently located persons might have been able to make a relevant observation as to the identity of the vehicle. 133In those circumstances, like in the case of Harrison v Nominal Defendant where the driver had left the scene, I consider that there was nothing which the plaintiff or the police or anyone else could have done that was likely to establish the identity of the driver that had caused the collision: Nominal Defendant v Meakes, at [40], following Harrison v Nominal Defendant, at p 683; p 331. 134The Nominal Defendant raised a number of arguments that I consider to have been informed by hindsight considerations. These were to the effect that at the time the plaintiff could have seen the vehicle registration number as the vehicle drove away (notwithstanding that the plaintiff had not seen the vehicle leaving the scene); or that the plaintiff could have asked someone at the scene to obtain the identification details of the vehicle and the driver (notwithstanding that the driver gave no indication of intending to decamp the scene without providing such particulars); or that the plaintiff could have returned to the terminal before leaving in order to report the incident and to seek out possible CCTV footage (notwithstanding that he needed medical attention and assuming without evidence that registration details would have been captured on such footage); or that he could have made subsequent telephone enquiries with police and airport staff (notwithstanding that the plaintiff held the mistaken belief that the incident occurred at Terminal 3). 135For the reasons identified in parentheses in the preceding paragraph, I consider that such inquiries would have been unlikely to yield any practicable results tending to identify the vehicle or the driver. In my view, once the unidentified vehicle had left the scene, the scent on the trail was effectively cold and unyielding to further investigation. 136I now turn to consider some features of the present case that in my view distinguish it from the circumstances that were ultimately determined to apply in the case of Nominal Defendant v Meakes. 137First, unlike the position in Nominal Defendant v Meakes, where at [61], it was determined that case did not involve a difficulty in ascertaining the identity of the vehicle or its driver, in the present case the plaintiff was not in a position of close proximity where he could have seen, identified or recorded identifying details of the vehicle. 138Secondly, in Nominal Defendant v Meakes the plaintiff's circumstances involving his own juxtaposition to the vehicle and its driver, and the on hand availability of pen and paper were found to have required that the plaintiff should have taken the "simple step" of recording the registration of the vehicle; [59]; [65]. In contrast, although the present plaintiff was a lawyer, he did not have the means on hand by which to make a record of such information, and he was never in a position where he could have seen the registration details of the vehicle before it left the scene. 139Thirdly, in Nominal Defendant v Meakes, at [67], emphasis was placed on that plaintiff's post-injury mental condition in that it did not preclude him from recording the registration details of the vehicle. Instead, that plaintiff was pre-occupied with attending an appointment to fulfil his professional obligations to a prearranged client transaction. In contrast, the plaintiff in the present case described himself as feeling "groggy" or "woozy" at the scene. This clearly had an influence on his capacity to immediately determine the need for him to take steps to record the registration details of the vehicle, and to determine the timing of the taking of such steps in the course of due inquiry or search before the driver decided to leave the scene without indicating to the plaintiff that he intended to do so. 140Fourthly, in Nominal Defendant v Meakes, at [64] it was recorded that plaintiff was aware of a significant injury that had been caused by the vehicle that had struck him, whereas in the present case, apart from the laceration or abrasion that was bleeding, the seriousness of the foot injury was not immediately apparent to the plaintiff at the time. 141Fifthly, in Nominal Defendant v Meakes, at [25] and at [46], citing paragraph [251] of the primary judgment, it was recorded that the plaintiff in that case had stayed at the scene for a little over a minute before he had decided to leave the scene in order to attend to his appointment after first waving the driver away without taking her particulars. That was in circumstances where the driver's particulars could have been readily obtained had that plaintiff remained at the scene and if he had not waved the driver off. In contrast, in the present case, the driver of the mini-bus decamped from the scene whilst the plaintiff's attention was directed to tending to his bleeding wound in circumstances where the plaintiff had not waved the driver off, and had not yet had an opportunity of broaching the matter of exchanges of particulars. Whether or not this was because the driver had deliberately left the scene in order to avoid detection, probable prosecution and loss of points from his licence, as was submitted on behalf of the plaintiff, is a matter that is unnecessary to determine. 142The evidence in the present case discloses that neither the driver nor any bystander had provided the plaintiff with the particulars of the vehicle that struck him. Furthermore, the driver of the vehicle that had struck the plaintiff did not indicate to him that he intended to leave the scene without providing his particulars, and he in fact left without providing such particulars. This was in circumstances where it was the legal obligation of that driver to stay at the scene, and to provide his particulars to the plaintiff. 143The fact that the plaintiff had not immediately obtained the driver's particulars was because he felt groggy and he was in shock, and at that time he was concerned about mitigating his bleeding wound. 144During cross-examination of the plaintiff, the defendant sought to emphasise the plaintiff's understanding, from tort law, as to the existence of the Nominal Defendant and the need for due inquiry and search: T 45 to T 46. As was observed in Nominal Defendant v Meakes, at [59] and [71], irrespective of that plaintiff's legal qualifications, it is appropriate that the plaintiff be regarded as a reasonably informed member of the community who would have been expected to know (also as a licensed driver) the importance of obtaining identifying details of the driver of a motor vehicle involved in an accident. 145The question that therefore arises is whether the plaintiff had a practicable opportunity to obtain such identifying details at the accident scene. 146I conclude from the circumstances immediately following the accident that it was not practicable for the plaintiff to have correctly identified the vehicle at the time of the accident before the driver had left the scene: Nominal Defendant v Meakes, at [73]. At that point, in my view, the scent became cold: Blandford v Fox, at p 245. Beyond that point, the subsequent inquiries instituted on the plaintiff's behalf, both with the police, through advertisements and with the airport authority, were destined to be futile: Harrison v Nominal Defendant, at p 682. In my view, this was irrespective of the mis-description of the accident scene as being outside Terminal 3 when it was in fact Terminal 2. 147In that regard, there seemed to be little point in the plaintiff's solicitors, Brydens, writing to the Desk Sergeant at Liverpool Police Station on 1 October 2008 when the accident occurred at Mascot: Exhibit "K". Similarly, there seemed to be little point in those solicitors directing correspondence to the Sydney Airport Corporation Ltd and to Qantas Airways Ltd in October 2008 erroneously referring to an incident at Terminal 3 and seeking CCTV footage especially where such footage was only kept for a month: Exhibit "H". The newspaper advertisements lodged by those solicitors on 4 October 2008 referring to Terminal 3 and providing the incorrect accident date of 29 March 2008 instead of 30 March 2008 was also a ritualistic exercise in futility: Exhibit "J". 148In my view, it follows that the plaintiff has established, on the balance of probabilities, that due inquiry and search (at the accident scene) would not have, and has not (subsequently), established the identity of the vehicle that struck him in the accident: Meakes v Nominal Defendant, at [55]. 149I now turn to the matter of the assessment of the plaintiff's entitlement to damages.

Issue 5 - Assessment of damages 150In the paragraphs that follow, after identifying the plaintiff's probable life span for the purposes of a damages assessment, I set out my assessment of the claimed heads of damage.

Probable life span of the plaintiff 151There is nothing from in the evidence that reasonably suggests the usual statistical median life span would not apply to the plaintiff's circumstances for the purpose of projection of future losses. At age 73 years, the plaintiff has a probable median life span of 14.04 remaining years. The 5 per cent multiplier for 14 years is 529.3.

Non-economic loss 152On behalf of the plaintiff it was submitted that the appropriate award for non-economic loss in this case should be in the amount of $225,000. In contrast, on behalf of the defendant, it was submitted that a damages award for non-economic loss should be of the order of $120,000. 153In assessing the plaintiff's claim for damages for non-economic loss I have referred to the matters set out in paragraphs [16] to [58] above, particularly the plaintiff's disabilities referred to at paragraphs [52] to [58]. Those matters, which need not be repeated here, continue to have a permanent and significant adverse impact on the plaintiff's mobility, agility and his normal amenity of life. In my view, the appropriate assessment of damages for non-economic loss should be $200,000. In coming to that view, I have not overlooked the need to consider and take into account matters of relativity regarding the plaintiff's age, as was discussed in Reece v Reece [1994] NSWCA 259, at [5] - [10]. 154I therefore assess the plaintiff's damages for non-economic loss in the amount of $200,000.

Economic loss 155On behalf of the plaintiff it was submitted that the appropriate award for economic loss should be in the buffer amount of $50,000. In contrast, on behalf of the defendant, it was submitted that there should be no damages awarded for economic loss. 156There is no dispute that the plaintiff was incapacitated from fully carrying out his usual activities for a considerable period of time after the true nature of his foot fracture was recognised. This incapacity not only included tasks requiring physical mobility and agility, but also sedentary tasks associated with his writing and his professional work. 157The plaintiff's pre-injury work pattern and income flow was not precisely or predictably definable. For that reason, I do not regard the plaintiff's income tax records to be reliably definitive of his claim for economic loss. It is therefore necessary to take a global view of his situation in order to assess his claim for economic loss or loss of earning capacity against the background of what would have been the plaintiff's probable circumstances if the injury in question had not occurred. 158In my view, other than taking into account normal vicissitudes, there is no reason in the evidence to suggest that the plaintiff would not have continued to derive intermittent income from his professional writing activities for a significant period of time. It was the type of intellectual work that was well within his capacity, it was unrelated to his age, and concerned his facility for commentary upon contemporary events. 159Whilst the plaintiff's injuries had no effect upon his university connections and activities, the effect upon his advisory work has been considerable. After the cast was removed from his foot he found that his ability to sit at his computer was initially not feasible, and then later, it was limited to a couple of hours at a time, compared to his previous ability to do this work for 5, 6 or 7 hours at a time. His consequential shorter working times and the interruption to his concentration caused him to fall behind in his writing. He has not been able to return to the field of advisory work on matters of ethics. 160Initially, he did not seek to return to advisory work because he was committed to the completion of his books after falling behind in his programme of writing due to the effects of the accident. 161In the meantime, as a result of his inability to attend to his writing for The Australian newspaper, his editor found someone else to write the articles that he would otherwise have written. With the exception of one recent commission since the accident, he has not written any further articles for newspapers Before the accident the plaintiff had written a significant number of such articles for The Australian. Some examples were tendered as Exhibit "G". In 2007-2008 he wrote six such articles. 162The plaintiff stated that the interference the accident had caused to his earning capacity was largely restricted to advice work because initially, whilst he was completing his books, he did not seek out such work, and the people who had previously sought out his opinions, knew he had been injured, the implication being that they did not approach him for that reason. In the other areas, the effect on his writing work was productive of delay. These were obvious flow on effects of the accident. 163The plaintiff acknowledged that his income from his professional activities had fluctuated both before and after the accident. However, I do not consider that concession meant he has not suffered a financial loss. Rather, it simply confirms that the plaintiff's financial loss is difficult to measure in this case. In those circumstances, which are not unique in damages cases of this kind requiring assessment, I am satisfied that the plaintiff's earning capacity has been interrupted and interfered with as a consequence of his injuries and disabilities. I am also satisfied that such interference has resulted in the plaintiff suffering a financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. 164As that financial loss is difficult to identify or to calculate in precise monetary terms, this is an appropriate case for the award of a monetary buffer amount as compensation for that loss: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], citing State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [87]; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 338, at [49]. 165At age 73 years, there is no indication from within the evidence, or from any other process of reasonable inference from the evidence, that the plaintiff would by now have been retired or would have ceased to exercise his earning capacity. His work has been largely of an intellectual character, and but for the accident, it was work that was well within his capacity to continue as he had beforehand. 166It is common knowledge that from the time of the plaintiff's injury until the present time, the continuum of contemporary events in society has not led to a reduction in opportunities for skilled insightful analysis, ethical commentary and advice on legal matters. This applies equally to the fields of business, politics, law, the professions, and the affairs of individual participants within those spheres. 167The plaintiff clearly has not lost his intellectual capacity to continue to contribute in those areas, evidenced by his continuing productivity in publishing his books. 168What has changed for the plaintiff is his opportunity to market himself and to reposition himself into his former situation of being available to give advice, which he had to relinquish whilst he was incapacitated. As a result of his unavailability, his work as a columnist also dried up as it appears that the newspaper publisher who had previously sought out his opinion pieces has had that need accommodated by others. As a result, these avenues of work, especially his advisory work, have been largely curtailed. These are matters that are relevant to the assessment of the plaintiff's financial loss and justify the award of a buffer amount. I therefore assess the plaintiff's damages for economic loss in the buffer amount of $40,000.

Past gratuitous care 169On behalf of the plaintiff it was initially submitted that the award for past gratuitous care should be in the amount of $25,974. This head of damage was subsequently agreed in the amount of $8580, representing 10 hours of care per week over 8 months at $25 per hour. In giving effect to that agreement, I therefore assess the plaintiff's damages for past gratuitous care in the amount of $8580.

Past paid care 170The parties have also agreed on the amount to be assessed in respect of past domestic assistance that had been paid for by the plaintiff, in the amount of $3786. In giving effect to that agreement, I therefore award the plaintiff damages for past paid domestic assistance in the sum of $3786.

Future care 171On behalf of the plaintiff it was submitted that the award for future care should be in the amount of $226,035. That sum was calculated by reference to the projection of 10 hours of domestic assistance per week, valued at the stated rate of $45 per hour over the plaintiff's life span. That amount requires adjustment as to the correct multiplier, the hours claimable by reference to the evidence, and as to the applicable hourly rates, also by reference to the evidence. 172In contrast, on behalf of the defendant, it was submitted that damages for future domestic care should be assessed at 2.5 hours per week at $25 per hour over the plaintiff's statistical life span in the amount of $31,394. That amount also requires adjustment as to the assessed hours and the correct multiplier. 173The assessment of the plaintiff's claim for future domestic assistance requires a consideration of the evidence of the plaintiff, the evidence of the witnesses called to support this component of his claim, and a consideration of the medical evidence. 174The plaintiff could not attend to any domestic work after he returned home from his overseas trip in July 2009. This was because of his increased level of pain and the recognition of the true nature and seriousness of his injury. 175The plaintiff began receiving help from his neighbour Ms Dianne Power who came in to his home to clean and wash dishes for him. He also hired a professional cleaner, Ms Belinda Dodds, to clean the house for him. A friend used to drive him to do the shopping and to at times cook for him or bring him food. His neighbours, Mr and Mrs Richter and their sons occasionally assisted the plaintiff with outdoor tasks as well. The plaintiff's need for such assistance increased after his surgery and the plaintiff still receives domestic assistance along those lines. As the quantum of the claim for past domestic assistance, both paid and unpaid, has been agreed, it is not necessary to analyse those matters further, except to assess the hours required. 176At present, the plaintiff continues to receive assistance from Ms Dodds, who cleans the house every few weeks. He pays Ms Dodds $25 per hour for those services. To date, the extent of the assistance from Ms Dodds has been limited by the plaintiff's budget. He also receives intermittent help from his former partner, Ms Wendy McDonald, who comes to his home for a whole day once per month to assist him by cleaning and carrying out some chores around the house. The plaintiff cannot easily move things around his house due to his disabilities. 177Essentially, the domestic assistance required by the plaintiff relates to any tasks requiring sustained weight bearing and agility. These tasks include cleaning, vacuuming, washing, using ladders, small tasks round the house, carrying out minor repairs or maintenance, gardening and lawn mowing activities. 178Ms Dodds gave evidence that at present she cleans the plaintiff's house for about 2.5 hours every 3 to 4 weeks. That regime is at present limited by what the plaintiff can afford, and it is below what she considers to be necessary. She considered that a minimum of 3 to 4 hours per week should be allocated to cleaning alone. The plaintiff considers that he would need about six hours per week of domestic assistance to cover the required chores. I considered the plaintiff's estimate to be reasonable. 179Ms McDonell, the plaintiff's former partner, has also provided him with domestic assistance since the accident, and continues to do so. She described the plaintiff's home before the accident as having been reasonably clean and well ordered. Since the accident, and in recent times, she has been attending his home about every 5 weeks to provide the plaintiff with assistance. This has included tidying up, clearing up garden debris and helping him organise his home at times of bush fire alert. 180Mr Richter, and his wife, who have known the plaintiff as a neighbour for about 8 years, used to assist the plaintiff before the accident with some occasional gardening, lawn mowing, landscaping and tree cutting. This was to the extent of several times per year, perhaps every few months. The plaintiff's house is on an allotment of about 600 square metres. 181After the plaintiff's accident the assistance from the Richter family increased to a frequency of either monthly or sixth weekly, for approximately 5 to 6 hours per month. That arrangement, and the arrangement that subsisted before the plaintiff's accident. is unlikely to continue into the future as Mr and Mrs Richter have placed their home on the market for sale, and intend to move away from the area. This will require that the plaintiff obtain similar assistance, but at a commercial cost. 182The medical evidence tendered on behalf of the plaintiff supports the claim for domestic assistance. Dr Bodel noted the plaintiff had continuing pain, stiffness and weakness in his right foot, with swelling. He said these problems would remain indefinitely. He thought the plaintiff's ability to lead a normal life was significantly impaired as a result of his injury. In his second report, Dr Bodel expressed the view that the plaintiff would need domestic assistance for about three hours per week to manage the heavier aspects of housework. In his view, that need would be indefinitely. Dr Conrad considered the plaintiff would need about 6 hours per week of domestic assistance. Dr Conrad maintained that view consistently following his examinations of the plaintiff in 2009, 2010 and 2012. 183The medical evidence tendered on behalf of the defendant was to the contrary. Dr Ginsberg stated that as at October 2009, the plaintiff did not require domestic assistance as he considered that there was very little restriction on the plaintiff's activities of daily living. That report of Dr Ginsberg had not acknowledged the Expert Witness Code and the reasoning in support of his opinion was sparse. Dr Ginsberg's subsequent report of 5 November 2011 did not acknowledge the Expert Witness Code either. Despite Dr Ginsberg being specifically asked to comment upon the plaintiff's current domestic arrangements, he offered no opinion on those matters in his second report. He simply recorded that the plaintiff employed a cleaner and a gardener, and that he no longer performed maintenance in his home. Dr Ginsberg's third report dated 18 December 2012 did not offer any opinion on domestic assistance at all. 184I find Dr Ginsberg's reports unpersuasive, both because of the lack of acknowledgment of the Expert Witness Code, and because of the very limited reasons concerning the issue of domestic assistance. I also consider that Dr Ginsberg's opinions do not take into account the detail of plaintiff's evidence given in these proceedings concerning his inability to perform domestic duties. I therefore prefer the opinions of Dr Conrad to the opinions of Dr Ginsberg. 185Having regard to the above matters I am satisfied that the plaintiff's estimate of 6 hours per week of domestic assistance is reasonable. Within that estimate of 6 hours per week I have included all indoor domestic tasks and assistance with shopping. In addition to those matters, I consider that an additional 1.5 hours per week should be allowed to cover the cost of employing outdoor assistance of the kind provided by the Richter family and some of the occasional assistance provided by Ms McDonell, comprising garden maintenance, lawn mowing and clearing leaves and other garden debris. I find that the plaintiff's need for such assistance is due to the effects of the subject accident. 186The competing arguments for the basis of assessment of this component of the plaintiff's claim are $40 per hour on behalf of the plaintiff, based on the Home Care rates within Exhibit "L", and $25 per hour on behalf of the defendant, based upon the hourly amount the plaintiff pays to Ms Dodds. 187The assessment of the value of those services involves a two-stepped calculation. I consider the plaintiff's rate of payment to Ms Dodds represents the market cost of similar services. That said, I consider that the market cost of providing outdoor services such as gardening, lawn mowing and clearing, should be assessed at the Home Care rates. The calculations are as follows. 188First, the assessment of 6 hours per week for domestic assistance at $25 per hour, or $150 per week, projected over the plaintiff's statistical median life span (x 529.3) yields the sum of $79,395. 189Secondly, the assessment of 1.5 hours per week at $40 per hour, or $60 per week, projected over the plaintiff's median life span (x 529.3) yields the sum of $31,758. 190The total of those amounts is $111,153. Although the amounts comprising that total have already been discounted for mortality, I consider that sum should be further discounted for other potentially adverse vicissitudes by applying a conventional discount of 15 per cent. This yields an assessment of $94,480. 191I therefore assess the plaintiff's damages for future paid domestic assistance in the amount of $94,480.

Future out-of-pocket expenses 192On behalf of the plaintiff it was submitted that the award for future out-of-pocket expenses should be in the amount of $35,161. 193In contrast, on behalf of the defendant, it was submitted that future medical treatment should be allowed at $40 per week over the plaintiff's remaining life span, and that an allowance of $12,055 should be made for podiatry and orthotics. These amounts total $32,147. 194The medical and allied evidence tendered in the case of the plaintiff supported this component of the claim. Dr Hayes, a sports podiatrist, recommended about 8 visits per year to a podiatrist at an estimated annual cost of between $360 to $560, as well as orthotics at a cost of about $400 per year, as well as 2 pairs of special shoes per annum. Dr Bodel supported the need for extra depth shoes and insoles to be replaced once or twice per year. He also recommended medication, indefinitely. Dr Conrad estimated ongoing treatment comprising orthopaedic supervision, physiotherapy, podiatry and footwear at an overall cost of between at least $3000 to $3500 per annum. Dr Conrad also identified the probability of a left hip replacement at a present day cost of $20,000. 195Dr Ginsberg's reports tendered on behalf of the defendant argued that the plaintiff's left hip problems were unrelated to the subject accident. I do not consider Dr Ginsberg's opinions to be persuasive on this issue. His reports have only limited reasoning to support his views on this issue, and without an acknowledgment of the Expert Witness Code, I consider his reports should carry little weight. He does not appear to have considered or placed much importance on the effect of the plaintiff's altered gait on the evolving condition of the plaintiff's left hip problems, and seems to have focussed upon a pre-existing condition of the left hip. The guiding principle is that the tortfeasor must take the plaintiff as he is found. I prefer the opinions of Dr Conrad to those of Dr Ginsberg on the relationship between the plaintiff's left hip problems and the subject accident. 196For the defendant to establish that an underlying condition of the plaintiff's left hip was the cause of the plaintiff's need for a future hip replacement procedure without material contribution from the plaintiff's accident related altered gait, something more in they way of evidence is required: Watts v Rake [1960] HCA 58; (1960) 180 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. 197I consider the lower end of Dr Conrad's estimate of $3000 per year for the recurring components of the plaintiff's ongoing expenses to be the appropriate method by which to compensate him for his future treatment needs. This is the equivalent of $57.69 per week. The projection of that sum at 5 per cent over 14 years (x 529.3) yields the sum of $30,353. In consider that sum should be discounted for potential adverse vicissitudes unrelated to mortality, by a conventional 15 per cent. This yields the amount of $25,955. 198To that sum must be added an allowance for the probable cost of a left hip replacement at a present day cost of $20,000. The total of these amounts is $45,955. In the light of that analysis, this shows the amount claimed by the plaintiff in the sum of $35,161 to be reasonable. 199I therefore award the plaintiff damages for future treatment expenses in the amount of $35,161.

Past out-of-pocket expenses 200On behalf of the plaintiff it was submitted that the award for past out-of-pocket expenses should be in the amount of $27,168. The defendant "agreed mathematically" with that sum. 201That agreement is ambiguous, and is unhelpful to resolving the task at hand in circumstances where the individual accounts that go to make up the claimed total have not been tendered in evidence. Because of the lack of accompanying details to explain the limited nature of the agreement, individual assessments of the particular elements of the claims and therefore the total amount, are precluded. 202I interpret the agreement between the parties to mean that the plaintiff has incurred the expenses claimed, and that the expenses were incurred as a result of, and therefore attributable to, the accident, subject to a determination of the liability issues. 203In the absence of an unambiguous agreement, damages for out-of-pocket expenses usually require proof. It is not usual to leave such matters to be decided based upon impression. This is a matter which ought to have been anticipated by the plaintiff's legal advisors, so that proof of these details would be on hand at the trial in the customary manner: Morvatjou v Moradkhani [2013] NSWCA 157, at [110], per Tobias AJA. 204Having regard to the matters of fact concerning the chronology of medical assessment and treatment as set out in paragraphs [17] to [57] above, my impression is that the sum of $27,168 seems reasonable, and should be awarded to the plaintiff in respect of his past put-of-pocket expenses. 205If either party considers that I am incorrect in that assumption, although inconvenient and burdensome as to costs, the parties may relist the proceedings before me on due notice for the purpose of an inquiry as to whether the individual items of expense were in fact properly incurred for treatment of the plaintiff's accident related issues, or for any required adjustment to the judgment sum by consent. 206On that qualified basis, I therefore assess the plaintiff's damages for past out-of-pocket expenses, in the amount of $27,168.

Summary of damages assessment 207My assessment of the plaintiff's damages is summarised as follows: (a) Non economic loss $200,000 (b) Economic loss $40,000 (c) Past gratuitous care $8,580 (d) Past paid care $3786 (e) Future care $94,480 (f) Future out-of-pocket expenses $35,161 (g) Past out-of-pocket expenses $27,168 Total $409,175

Disposition 208In the result, the plaintiff plaintiff's damages assessed at $409,175 require reduction to take into account an apportionment for contributory negligence assessed at 20 per cent. Accordingly, the verdict in the plaintiff's favour in the amount of $409,175 is reduced by apportionment to the sum of $327,340, and the plaintiff should have a judgment entered in her favour against t Nominal Defendant in that sum.

Costs 209As the plaintiff has succeeded in obtaining a judgment against the Nominal Defendant, he is generally entitled to have his costs of the proceedings paid by the Nominal Defendant on the ordinary basis unless it can be shown that some other costs order should be made, subject to a consideration of the appropriate order for costs due to the adjournment that was necessitated on 1 March 2013 at the request of the plaintiff's legal advisors because a wrong witness without relevant knowledge of the facts had been called to give evidence on that date. I will hear the parties on that issue before making a final order as to costs of the proceedings, and as to who should bear those wasted costs.

Orders 210I make the following orders: (1)Verdict for the plaintiff in the assessed sum of $409,175; (2)After applying the assessed apportionment of 20 per cent for the plaintiff's contributory negligence, judgment is entered in favour of the plaintiff in the apportioned sum of $327,340; (3)Before making an order for costs I will hear the parties on the appropriate order for the costs of the adjournment of the proceedings on 1 March 2013; (4)The exhibits may be returned; (5)Liberty to apply on 7 days notice if further orders are required.

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: 19 July 2013

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