On 19 March 2012, the plaintiff sustained severe personal injuries when he was the rider of a motorcycle on Queens Pinch Road, south of Mudgee. The plaintiff's motorcycle collided with a vehicle being driven by the defendant, in the course of the plaintiff overtaking the defendant's vehicle. By an Amended Statement of Claim filed pursuant to leave granted by me on 26 October 2015, the first day of the trial, the plaintiff pleaded his claim as follows:
"5 The Plaintiff noticed that the Defendant had her left indicator on and assumed that the Defendant was going to turn left. As the Plaintiff attempted to overtake the Defendant's vehicle, the Defendant made a sudden right hand turn knocking the Plaintiff to the ground.
6 PARTICULARS OF NEGLIGENCE
The Defendant was negligent in that she:
(a) Failed to turn left as she had indicated and instead turned right;
(b) Failed to operate vehicle in a safe manner;
(c) Failed to indicate her intention to turn right;
(d) Failed to warn the Plaintiff of her intention to turn right;
(e) Drive her vehicle at a speed which was excessive in the circumstances;
(f) Failed to have any regard to the position of the Plaintiff on the road way;
(g) Failure to make any or any adequate observation as to the presence of the vehicles approaching from behind before executing a right hand turn across the path of any such vehicle.
(h) Failure to consult her internal or external rear view mirrors before executing a right hand turn across the path of any vehicle that may have been approaching or overtaking her vehicle, from the rear.
(i) Failure to make an observation to the rear by looking to the rear through the rear window or otherwise before executing a right hand turn across the path of any vehicle that may have been approaching or overtaking her vehicle, from the rear.
(j) Making a right hand turn across the path of another vehicle which was overtaking.
(k) Failing to keep a proper lookout.
There was no evidence adduced to support the pleading that the defendant had her left indicator on. Particular (a) above, although not abandoned, was not relied on by the plaintiff.
The plaintiff suffered severe injuries which included, inter alia, a brain injury. It was common ground that he had no recollection of the accident, which occurred in the following circumstances. Both vehicles were travelling in a northerly direction along Queens Pinch Road. The vehicles collided at a point on the eastern side of that road, adjacent to the driveway of the defendant's home at number 823 Queens Pinch Road. The defendant was making a right hand turn into those premises when the motorcycle, which was overtaking her vehicle, collided with the rear of the driver's door of the defendant's vehicle. The plaintiff was thrown from his motorcycle and travelled in a generally northerly direction across the plaintiff's driveway, into the northern gate post of the entrance to that property. In the circumstances, the plaintiff alleges that the defendant breached her duty of care to him, and that that breach was causative of the injuries suffered by him.
[2]
The defence
The defence denied negligence and in the alternative, pleaded contributory negligence on the part of the plaintiff, the particulars of which were as follows:
"6 Particulars of contributory negligence
(a) Attempting to overtake the defendant's vehicle on the incorrect side of the road;
(b) Attempting to overtake the defendant's vehicle on the off-side notwithstanding that the defendant was indicating an intention to turn right;
(c) Travelling at an excessive speed in the circumstance;
(d) Failing to keep a safe distance behind the defendant's vehicle;
(e) Failing to steer or control his vehicle to avoid a collision.
[3]
The plaintiff's evidence
The plaintiff was born on 8 May 1970 and was 41 years of age at the time of the accident. He was an experienced motorcycle rider, having ridden motorcycles since he was a young boy and having held a license since he was 17 years of age. It was, throughout his life, his major recreational interest.
The plaintiff gave evidence that his last memory before the accident was being at home working on his motorcycle. His next memory was waking up in Westmead Hospital. He was asked whether he had a practice when he rode a motorcycle and became aware of a vehicle in front of him which he proposed to overtake, with regard to preparing for that manoeuvre. He gave the following evidence:
"A: Well, there were quite a few things involved. Initially, I'm trying to assess a driver's intentions. Now, a, a driver could do one of several things. So, initially, I need to gauge my closing speed on the vehicle, attempt to assess whether the driver is aware that I'm there, look for any, any indicators, such as a right or left indicator or brake lights. I need to assess whether the, that car is accelerating or decelerating, or coming to a stop. Only after I've assessed all of that, can I then begin to make a decision of whether I will attempt to overtake and I only ever overtake a vehicle if I believe it's safe to do so. If a vehicle has its right indicator on, it's definitely not safe to do so.
So in that circumstance I would not attempt to overtake a vehicle with its right hand indicator on. But I would slow down, adjust my speed, because if the vehicle in front of me is moving considerably slower than I am, then I need to reduce my speed considerably. Then once I've done that, and once I put myself in a position on the road where I'm most likely to be visible to any vehicle in front of me - and by that I mean positioning my motorcycle so that my, the headlight of my motorcycle lines up with their right hand mirror, their driver's side right hand mirror. So in most normal circumstances if a driver glances in their mirror the first thing they'll see is my headlight. I mean I always account for that and that's a habit that I've developed from a very young age (sic)."
On the day of the accident the plaintiff was riding a Kawasaki 1000cc model motorcycle. He was asked:
"Q: Do you have a practice with regard to engaging the headlamp, or did you then?
A: Yes, I normally start the motorcycle with the lights off and then once the, once the cycle's actually started and running, then I'll switch the lights from the off to the on position."
The plaintiff acknowledged that he was aware at the date of this accident that the area of Queens Pinch Road, where the accident occurred, was an area where a working farm straddled the road. He agreed that he had said in his police statement that he often saw, in that section of the road, vehicles pulling out of driveways and crossing to other parts of the farm. He agreed that he had described that section of the road as a "working section", because there were often stock movements across the roadway. The plaintiff also agreed that he had observed, prior to the accident, farm work vehicles on the road and that he knew, at the time of the accident, that a farm property straddled both sides of the road and there would in all likelihood be vehicles moving from one part of the property to the other. He was asked:
"Q: There was a very real risk of any slow moving vehicle fitting this description that you came across wanting to turn off the road into driveways, perhaps on the right, isn't that so?
A: I have no reason to, to know that beforehand.
Q: But you knew there was a risk of that didn't you?
A: I think the same risk applies anywhere."
The plaintiff went on to describe that he was aware of driveways all along the road, but said:
"The only thing that signifies that stretch of road as being different to any other is there is one sign and that single sign says, "stock crossing". There is no other sign which indicates entering or turning vehicles, watch for hidden driveways or anything of that nature."
The plaintiff did not deny saying to the police:
"Often there was stock moving across the roadway and cars are often pulling out of the driveways and crossing over to other parts of the dairy."
It was put to the plaintiff that stock and traffic on the road happened often enough for him to tell the police about it. His evidence was:
"A: I was aware of it but I didn't see it as a, a, a regular - I mean, most - nine times out of ten when I drove by there was no, there was no stock on the road, there were no vehicles entering or exiting driveways.
Q: But often there were vehicles entering the roadway and exiting the roadway in that area, weren't there?
A: At various times there were, yes.
Q: It was often enough for you to be aware that slow moving farm vehicles could in all likelihood be in that area. Firstly, on that road, correct?
A: Yes.
Q: That if there were slow moving, what appeared to you to be farm vehicles, there was an obvious risk of them turning off the road, sometimes to the right, that's correct also, isn't it?
A: I, I can't say, there was more of a risk for them to turn right or left. It - they could have turned either way.
Q: But once one passed the dairy on the western side of the road, the turnoff the road was to the right, wasn't it, in that driveway?
A: No, no, I disagree."
The plaintiff then went on to state that there was a turnoff both to the left and to the right, the right turn being into the driveway of number 823, the home of the defendant.
When asked in cross-examination to tell the court his practice in relation to overtaking a vehicle such as a truck, the plaintiff gave the following evidence:
"A: You need to be aware of the closing speed of the other vehicle, not to approach it excessively fast. Then I would position my motorcycle some distance behind the vehicle in front, maintaining at least a two second gap and I would position the front of my motorcycle to line up with their right side driver's rear-vision mirror. Then I'd need to check that my visibility is good, that I have clear vision for some distance down the road. I need to check for oncoming traffic. I need to look for any other hazards like vehicles turning out of driveways or side roads. Essentially I need to make sure my vision is not obstructed by anything else so I'm not surprised by something."
The plaintiff agreed that in his evidence in chief he had, when describing his usual practice in such a situation, not mentioned a two second gap between the vehicle he was overtaking, nor made any reference to oncoming traffic. He did agree that whatever speed the vehicle in front of him was travelling at, he should adjust his speed by lowering it when he came up behind that vehicle.
The plaintiff did not agree that there was always a risk that a slow moving vehicle proceeding north near the residence at number 823 Queens Pinch Road would turn into that driveway even if he did not see an indicator. He disagreed that travelling through this stretch of road at 90-100 km/h was an excessive speed. He agreed, however, that if there was a slow moving vehicle on the roadway ahead of him, a vehicle travelling as slow as 15 km/h, it was clearly an excessive speed.
The plaintiff agreed that if the vehicle he was overtaking had displayed a right hand blinker, he would never have attempted to overtake it, and that in those circumstances he would have been responsible for his own injuries.
The plaintiff also conceded that he would adjust his speed down to close to the speed of the slow moving vehicle in front of him until he had come to some reliable conclusion about what the driver of the vehicle was going to do. He was then asked:
"Q: Because following safe driving practice, you ought not to commit yourself to overtake at any speed, you'd agree, unless you can come to a reliable view as to what that slow moving vehicle is going to do; isn't that right?
A: Provided that the vehicle in front gave adequate warning of what it intended to do.
…
Q: But let's leave the blinker out of it for the moment. I'm asking you about a slow moving vehicle proceeding at 10-15 km/h clearly visible to you, and I'm asking you to agree -
A: I, I, I may not necessarily see the need to slow down to its speed unless I perceive a hazard.
Q: What's the best estimate you can make as to what is the speed following safe driving practices?
A: Well, I'd have to consider that when you're doing a given speed it takes a particular distance to stop and the faster you're going, the more that distance increases. As, as I decelerate I become aware of the fact that my braking distance is less.
Q: What's the speed?
A: I, I, I see no danger in overtaking a vehicle that you suggest would be doing a speed of approximately 15 kph. I, I see - if I perceive no risk or, or I see no indication that the driver intends to do anything other than to continue in a straight line, then I would safely overtake confidently at between 60 and 70 kph."
When asked to assume that the vehicle in front was slowing and that it was travelling close to the centre of the road, approaching the driveway leading into number 823, the plaintiff was asked:
"Q: You should not be travelling at that speed, should you?
A: No, I, I would consider that to be a little excessive.
Q: And if, of course, the blinker was on, it's more than excessive, isn't it? It's a highly dangerous manoeuvre for you to attempt to overtake a vehicle to the right when it's got its blinker on, isn't it?
A: If the blinker was activated in sufficient time and distance and I was aware of it then, yes."
The plaintiff went on to agree that based on those assumptions, travelling at 6-8 times the speed of the slow moving vehicle on the incorrect side of the road, was dangerous.
In re-examination, the plaintiff was asked:
"Q: If I ask you to assume that you're travelling on a straight stretch of roadway on a clear, dry day, and you see a vehicle in front of you travelling at a significantly slower pace than you, then otherwise doing nothing, do you see an impediment to passing that?
A: I would not see no, I wouldn't.
Q: In what circumstances, if any, would you slow down for such a vehicle?
A: If I perceived any kind of hazard such as indicators or brake lights or oncoming vehicles or any vehicles exiting from a side road possibly.
Q: In what circumstances, if any, would you slow down?
A: I may slow down if I perceive the speed of the vehicle in front of me is excessively slow and otherwise I wouldn't. Under normal circumstances I wouldn't particularly slow down. I may just decide to move out and overtake."
[4]
Evidence relied on by the plaintiff
The plaintiff's court folder number 1 (Ex D), included a number of documents produced by the New South Wales Police. Those documents included a statement made by the plaintiff to the police dated 4 June 2012, which included the following passages on which he was cross-examined as set out above:
"15 I know the section of Queens Pinch Road near the dairy to sometimes have cattle signs out on the road. I call it a "working section" of road because they are often moving stock across the roadway and cars are often pulling out of the driveways and crossing over to other parts of the dairy, because the dairy is on both sides of the Queens Pinch Road. They are also sometimes cutting the grass along that section of road.
16 For those reasons it is always my habit to only travel at between 90 to 100 kph maximum along that section of the road and to always keep a good lookout along that section of the road for stock or vehicles. I only travel at 90 to 100 kph if it is day time and dry. If it is dark or raining or the cattle signs are out, it is my habit to drop my speed down to 60 to 70 kph along that part of the road."
Mitchell Swords made a statement dated 21 March 2012. He came across the scene of the accident shortly after it happened. His statement included the following:
"21 I could smell petrol so I turned the fuel off the motorbike. I also turned the ignition off. The ignition was on at the key. I noticed that the front headlight was on. When I turned the ignition to off, the headlight went off."
Senior Constable Costello also attended the scene. In a statement dated 21 March 2012 she recorded a conversation that she had with the defendant, who she referred to as Mrs Dawn Dent. That statement included:
"12 Dawn's son, Wayne, walked over towards where she was sitting. I heard Dawn say to Wayne 'I was just finishing in the paddock and I decided to come back to get some scraps for the pigs, I put my blinker on at the yellow sign and it hit me with such force that truck stopped.' Wayne said 'they come flying down over that hill'. I didn't hear them say anything else to each other. We all remained on the verandah (sic)."
Detective Senior Constable Holgate also attended the scene of the accident. In a statement dated 22 June 2012 he noted that he had conducted a record of interview with the defendant. He also stated:
"26 About 8.10pm Senior Constable Kremers and I checked the Kawasaki motorcycle and found that the headlight was in the 'on' position. When the power to the bike was turned on, the headlight came on and was working normally.
27 Senior Constable Kremers then checked the blinkers on the Maverick and found them both to be working normally."
Exhibit D also included the defendant's record of interview made on 19 March 2012, which is referred to below.
In a statement dated 1 July 2012, Senior Constable Crome of the Chifley Crash Investigation Unit, having reviewed all of the police investigations and the skid mark created by the defendant's vehicle, and having stated that he did not attend the scene of the collision at any time, calculated the speed of the vehicle at the commencement of those skid marks as between 14 and 15 km/h.
Based on an assumed speed of 15 km/h for the defendant's vehicle and 100 km/h for the plaintiff's motorcycle, whilst the defendant's vehicle was traversing the 97 metres from the dairy to point of impact, Senior Constable Crome stated:
"29 In simple terms, during the time it took the Ford to travel the 97 metres, the motorcycle travelled 637.1 metres. At the end of the time, both vehicles collided.
30 NB: The assumption of 637 metres assumes that the motorcycle was travelling at a constant speed of 100 km/h until the time of impact. However, we know this is not correct, as there was a period of time and distance that passed for the motorcycle as it commenced to brake, decelerate and collide, which would have placed the velocity of the motorcycle below 27.7 mps (100 km/h). Depending on what distance from impact the motorcycle commenced to lose speed would determine the true overall distance. Time remains the same for both vehicles.
31 We do know, however, where in distance and time that Ms Dent activated her indicator. That distance was 73 metres from where entered the roadway. At a constant 15 km/h she was 24 metres and 5.7 seconds from impact. If one were to assume that this is the earliest opportunity for the motorcyclist to perceive the impending danger, then at a constant 27.7 mps (100 km/h), the motorcycle would have been 157 metres from impact. Both vehicles were therefore separated by 133 metres at the time the indicator was activated.
32 NB: I am not advised as to what sight distance was available to Ms Dent when she looked prior to entering the roadway, however, viewing the photographs, it would appear that may have been less than 637. If that was the case, Ms Dent would not have had the motorcycle in view when she entered the roadway."
The opinion expressed in [32] above was correct in that the evidence established that the sight distance available to the defendant when she entered the roadway was in the vicinity of 440 metres.
Senior Constable Crome noted that his hypothesis was incomplete and relied on various assumptions.
[5]
The defendant's record of interview
The record of interview was conducted by Detective Senior Constable Holgate, commencing at 5.02pm on 19 March 2012 at the home of the defendant. The transcript records the following:
"Q: Yep. If you can tell me in as much details as you can, mate, exactly what happened then.
A: I was just driving back down the road.
Q: Yep.
A: And I pulled up at the gate just opposite across the road here.
Q: Yep.
A: But I didn't enter the gate, I just come back down the road and I put the blinker on to turn into the gate.
Q: So put blinker on to enter the -
A: The gate out there.
Q: The driveway is it?
A: Yeah, the driveway.
Q: Yep. The driveway that leads to your house. Is that right?
A: Yeah.
Q: O.K. Yep. And what happened then?
A: And the motorbike hit the door.
Q: Yep.
A: And it stopped the truck. And I realised I couldn't get out of my door and I got out the opposite side of the door.
…
Q: O.K. So he, did the bike stop when it hit the car or did it keep going?
A: No. When the bike hit the vehicle it just stopped stone dead and it just tossed him across the, across the driveway.
Q: O.K. Yep. And when the car stopped after being hit by the bike did you move the car at all?
A: No.
Q: No. O.K.
A: No.
Q: So where the car is now is where it stopped?
A: Yep, that's where it, yeah.
…
Q: Yep. O.K. And, and then you're driving down Queens Pinch Road. How fast were you going when you were driving down Queens Pinch Road to the house gate?
A: I wouldn't have been doing more than ten ks.
Q: Ten ks?
A: Ten, fifteen ks. I was only poking along.
Q: O.K. Yep. And, and what stage in that journey between the two gates -
A: Yep.
Q: --did you put your indicator on?
A: Probably at the yellow sign out here.
Q: Do you have a memory of when you put it on?
A: Well I can remember going like that to turn it on.
Q: O.K.
A: But I just turned into the gate and he just hit me.
Q: O.K. So turned, I might get you to show me exactly where that yellow sign is -
A: Yeah, yeah.
Q: --because I haven't got a picture of it in my head at the moment.
A: Yeah, yeah, yeah. Yeah.
Q: So you put your blinker on at the yellow sign.
A: Yep.
Q: And then how long after you put your blinker on did you turn?
A: I probably came down the road probably ten metres and then when I went to turn into the gate that's when he hit the door.
Q: O.K. O.K. So just so I've got that straight mate, you turned your blinker on at the yellow sign?
A: Yeah, thereabouts.
Q: Yep. And then travelled ten metres?
A: Yeah, ten or fifteen.
Q: And then you turned, you commenced your turn into the gate?
A: Into the gate.
Q: Is that, is that accurate?
A: I do it every day.
Q: Yep. O.K. And when was the first time that you, you, you realised that the motorbike was even there?
A: When he hit me."
In relation to her rear vision mirrors, the defendant said as follows:
"Q: Yep. O.K. At any stage during the trip between the two gates did you look in any of your rear vision mirrors?
A: Yeah.
Q: Yep. And at what stage was that that you looked in the rear vision mirror?
A: When I left to turn, to leave the first gate over here.
Q: Yep. Prior to making the turn into your driveway did you look in your rear vision mirror before you made the turn?
A: No.
Q: No?
A: I was looking straight ahead.
Q: Straight ahead? O.K. And did you lose control of your car at any stage prior to the collision?
A: No. When he hit the door the truck just stopped.
…
Q: Four or five seconds passed and then you started your turn. Is that, is that what you're saying?
A: Well I had the blinker on.
Q: Yep.
A: I approached the gate. And I turned and that's when he bounced off the door.
Q: Yep. O.K. So four or five seconds your blinker was going for and I think about ten metres you told me -
A: Yeah, about ten metres."
[6]
The evidence of the defendant in respect of liability
The defendant gave evidence that she had lived at the property on Queens Pinch Road for 36 years. She conducted a farming business in beef cattle, although the property had previously been a dairy farm. The property straddled both sides of Queens Pinch Road and there were occasions when stock and farm vehicles were driven from one part of the property to the other.
The defendant gave evidence that the house property was on the eastern side of Queens Pinch Road. Opposite the driveway to that property was a gate on the western side of the road which had not been used for about 12 years. Approximately 100 metres to the south, and also located on the western side of the roadway, was what was known as the dairy. There was a driveway and gate to that part of the property off Queens Pinch Road.
On 12 March 2012, the defendant had been checking on stock to the south of the property. She drove north along Queens Pinch Road and pulled off the road into the driveway, leading to the dairy. She gave the following evidence:
"A: I was going to go through the gate to check on the cows that were ready to calve and I realised it was a bit early, so I pulled - I looked over my shoulder, put the blinker back on, and started to head back down to my house."
When asked what she saw when she looked over her shoulder, the defendant answered:
"A: There was nobody on the road."
The defendant identified the right hand blinker as the blinker that she engaged when pulling back onto the Queens Pinch Road. When asked what speed she reached once she commenced to travel north, she said:
"A: Probably between 10 kilometres and 14-15 km/h."
Q: What did you do then as you were coming further down that road in relation to anything in your car?
A: There's a road sign to the left, probably 20 metres before my house gate and I always put the blinker on.
Q: What did you do?
A: I put the blinker on at the sign to turn into my house gate.
…
Q: Try to tell us what actually happened on this occasion?
A: I pulled away from the ramp at the dairy, I started to head home and I put the blinker on at the sign to turn into the gate. I was going home.
Q: The sign that you have referred to in your evidence is the sign visible in that photograph in front of you?
A: The yellow sign with the black arrow on it.
Q: Having applied your blinker at that stage, you continued to drive for a further distance before reaching your driveway?
A: Yeah.
Q: What did you do in relation to your move towards the driveway?
A: I slowed the vehicle down, back to first gear, and I probably touched the brakes lights to slow it down.
Q: What did you do?
A: I slowed down to turn into the gate, I knocked it back to first gear and I proceeded into the gate.
Q: Where were you looking as you proceeded to turn?
A: Straight ahead.
Q: Why were you looking in that direction?
A: Because there's a sharp corner and the traffic come home - well they're sitting on 100 kilometres and if I'm in the process of turning I can't make it across to my gate because that was a bad time of the day for all the traffic to be coming home and the school bus.
Q: How far into your turn were you when something happened?
A: I was probably a metre and a half away from the entrance of my gate.
Q: If one takes that very rough edge of the road where the grass joins the bitumen, are you able to estimate how far beyond that line you were with the front wheels of your car when the impact occurred, can you give us an estimation?
A; When the impact occurred all I had left on the tar was the back wheels of my vehicle.
Q: When the impact occurred, what did you feel in relation to what happened in your car?
A: I heard a loud bang on the door, I looked and the motorcycle rider was leaving the vehicle and he stopped at the strain post on my house gate.
Q: Did something happen in movement of your vehicle?
A: It pushed me sideways across the driveway, it pushed me north.
Q: Are you able to estimate how far across the driveway you were pushed?
A: A metre, a metre and a half.
Q: Was it heading in the same direction as you had originally been heading when you were entering the driveway, or was it further to the north?
A: Further to the north."
The defendant gave evidence that the impact of the motorcycle caused the cabin of the vehicle to be ripped off the chassis. Further, the motorcycle had come to rest just in front of her vehicle, partly to the right side. She gave this evidence:
"Q: I think you may have touched on this, what did you observe as far as the rider is concerned in relation to his movement? What happened to the rider?
A: When he impacted on the door, he left the motorbike and come in front of the vehicle and stopped in front of the strainer post at my house gate."
The defendant made no observations of the headlight of the motorcycle either before or after the accident. She did not see the motorcycle coming until it hit the door of her vehicle.
As to the location of the point of impact, the defendant gave the following evidence:
"Q: It may not be clear from your earlier answer, how far into your driveway had your vehicle reached at the point of impact?
A: Probably a metre.
Q: You mentioned that the rear wheels were left on the bitumen surface?
A: Yes.
Q: How far onto the bitumen surface, to the best of your recollection, at the point of impact?
A: The rear wheels were just touching the bitumen, and the tray was hanging on the bitumen.
Q: The rest of the vehicle was in your driveway entrance?
A: In my driveway."
The defendant also gave evidence that the gate opposite her driveway on the western side of Queens Pinch Road had not been used for 12 years and that she had never parked her vehicle on the left hand side of the road opposite her driveway, nor had she seen anyone else park their vehicle in that vicinity.
In cross-examination, the defendant conceded that she never saw the motorcycle before it collided with her vehicle, and that she never consulted her internal or external rear view mirrors during the course of her journey from the driveway of the dairy to her home, a distance of approximately 100 metres. She had undertaken that journey literally hundreds of times and basically regarded it as a journey from one part of her property to another. She did not engage her seatbelt for the purpose of that journey.
The defendant also conceded that she knew that the speed limit was 100 km/h and that vehicles frequently travelled along that section of the roadway at about 100 km/h.
When asked why she did not look behind her vehicle after leaving that driveway, her answer was:
"A: Because there was nobody coming when I had previously looked."
The defendant gave evidence that she did not have a routine for driving between the dairy and her home. She was not wearing a seatbelt on that day but did not concede that she never used a seatbelt when driving on that road. In respect of her evidence that she had the right blinker on for six or seven seconds prior to impact, she gave the following evidence:
"Q: Do you say that you had it on for six or seven seconds from the time that you engaged it to turn right?
A: Yeah, at the sign.
Q: How far is the sign from the entrance to your property?
A: 20 - odd metres.
Q: So you would agree with me, would you not, that the maximum distance over which you had that right blinker engaged, if you had it engaged, was about 20 metres?
A: Yes.
Q: And was that sufficient, in your view, to indicate your intention to turn right if a vehicle was following behind you?
A: Yes.
Q: But you didn't know if there was a vehicle following behind you, did you?
A: No.
Q: And do you suggest to this court that having a blinker engaged for 20 metres would have been sufficient notice to a vehicle following you at, say, 100 km/h, that you were going to turn right?
A: Yes."
The defendant gave evidence that the right hand blinker cancelled on impact, although she did not recall that. She did not recall telling the police that she could not hear the blinker at the time because of the radio in the vehicle. Notwithstanding that she gave evidence that she had heard the indicator on, and had observed the light within the cabin of her vehicle indicating that the indicator was on and blinking.
The defendant also agreed that rather than making a right angle turn, close to 90 degrees, the turn that the defendant made into the driveway was a gradual inclination across the roadway. She also gave evidence that the motorcycle slid across the driveway a little bit, after the impact.
The defendant was asked about her statement to the police that she, after engaging her blinker, came down the road "probably 10 metres and then went to turn into the gate". She agreed that was the case. She gave this evidence:
"Q: That's the fact of the matter? You travelled 10-15 metres with your indicator on and then turned into the gate?
A: Yep."
She agreed that it all happened very quickly and that she had told the police that the indicator had been on for four, five or six seconds. In not looking in her rear vision mirror when she turned into the house gate, the defendant conceded that she didn't follow her usual habit. She did, however, give evidence that she had her blinker on and to that extent, followed her usual habit. When driving from the dairy, she gave evidence that when she went through the same routine of what she did every day, but that on this occasion she omitted the vital step of looking around to see if anyone was coming from behind.
In re-examination, the defendant clarified that when she pulled into the entrance of the dairy, the position of her vehicle was parallel to the tarred roadway. She also gave the following evidence:
"Q: Before your vehicle was forced to the left by the impact, what was the course that it took in turn that it was then making? Was it the same as after the impact or different?
A: It would have been the same as on impact.
Q: What I'm asking you is, what about before the impact. How was your vehicle entering this driveway before the impact occurred?
A: As I do normally, just turning into the gate.
Q: Was it in the same position as it was depicted where those skid marks are, or in a different position?
A: No. No, it was back towards the motorbike."
[7]
The plaintiff's expert evidence
The plaintiff relied on a report from Mr John Jamieson dated 12 August 2014 (Ex D). Having reviewed all of the police evidence, Mr Jamieson described the collision between the motorcycle and the defendant's vehicle as a rear approach, side swipe impact. Based on the skid marks left by the motorcycle, he estimated the impact speed of the motorcyclist at no more than 40 km/h and a pre-braking speed of approximately 75 km/h. On the basis that the defendant did not look in her rear vision mirrors prior to commencing the right hand turn, it was Mr Jamieson's opinion that the motorcyclist was probably one second behind the defendant's vehicle at the time she activated her right indicator, which left him with insufficient stopping distance to avoid colliding with the defendant's vehicle.
[8]
The defendant's expert reports
The defendant relied on reports from Mr William Keramidas dated 19 June 2014 (Ex 1), 21 September 2014 (Ex 2), and a report dated 29 October 2015 (Ex 11), which was prepared and served during the hearing. In his primary report, Ex 1, Mr Keramidas reviewed all of the police documentation and expressed his opinion as to a number of matters which are summarised as follows:
1. That the vehicles collided at an angle of 30 degrees, i.e. the orientation of the defendant's vehicle was likely to have been about 30 degrees relative to the path of the motorcycle.
2. The speed of the defendant's vehicle at the point of collision was in the order of 16 km/h.
3. The impact speed of the plaintiff's motorcycle was within a range of 40-55 km/h.
4. The motorcycle's speed at the start of the skidding process was between 78 and 93 km/h.
5. The motorcycle's approach speed, assessed on a time/distance relationship between it and a crane being driven by Mr Dale Minchen, which was previously overtaken by the plaintiff, was estimated to be between 109 and 116 km/h.
6. The sight line to the point of collision was a distance of 535 metres.
7. Over that distance the plaintiff should have been in a position to identify the presence of the defendant's vehicle and then assess that it was travelling at a significantly slower speed and turning to the right.
8. The plaintiff should have had at least 56 metres in order to perform an evasive manoeuvre sufficient to avoid an impact with the defendant's vehicle. If he had taken "a pre-emptive cautionary approach, then in all probability, he would not have needed to take any emergency evasive action."
9. Mr Keramidas referred to the plaintiff describing in one version of the events that he observed the defendant's vehicle's left hand indicator operating. This was not established on the evidence.
10. The defendant could also have avoided the impact if she had checked her mirrors prior to commencing the turn, although the success of any avoidance manoeuvre on her part would depend largely on the plaintiff's response to those actions. It was Mr Keramidas' opinion that the plaintiff had decided early that he was going to overtake the Ford utility, "even though the visual cues indicated that the vehicle was travelling slowly and with its right turn indicator on, as well as being in the immediate proximity of a driveway at that location."
In his second report dated 21 September 2014 (Ex 2), Mr Keramidas responded to the report of Mr Jamieson dated 12 August 2014. Mr Keramidas, in that report, stated:
"The present author does agree with Mr Jamieson that the time difference between the indicator being activated 10 metres from impact or adjacent to the hazard warning sign, is significant, if not critical, to the analysis of the incident circumstances."
Otherwise, Mr Keramidas adhered to the opinions expressed by him in his primary report, Ex 1.
In his supplementary report dated 29 October 2015 (Ex 11), Mr Keramidas expressed his opinion in respect of issues raised by the Amended Statement of Claim filed on 26 October 2015, and particularly, the further particulars of negligence of the defendant as follows:
1. Failing to use her external mirrors to identify the presence of the plaintiff;
2. Turning right when a vehicle was approaching her from the rear;
3. Turning right when a vehicle approaching from the rear was attempting to overtake her vehicle; and
4. Turning across the path of a vehicle which was overtaking.
Mr Keramidas set out four main elements that affect the detection prospects for the defendant, of the plaintiff, in her rear vision mirrors. They were:
1. "The size of the rear view mirror;
2. The size of the object in the rear view mirror;
3. The contrast of the object in the rear view mirror; and
4. Intervening topography between the mirror and the object."
It was Mr Keramidas' opinion that the size of the motorcycle in the rear view mirrors would be small, and that the headlight would appear as a small spot. It was not possible to quantify the effect of each of the above elements, however, a detection distance of somewhere in the range of 150 metres was appropriate.
Mr Keramidas then set out a number of factors which could influence a driver's frequency of use of their external mirrors, the extent of the sight line being significant.
Once the defendant commenced her turn, Mr Keramidas expected that the focus of her attention would be on that manoeuvre. During that manoeuvre she would not be expected to be looking in her mirrors as she was in the process of turning and as she progressed through the turn her mirrors would progressively become less effective, i.e. less able to identify vehicles approaching from the rear.
Finally, Mr Keramidas expressed the opinion:
"That had the defendant looked and seen the plaintiff at a long range [at the time of her activating her right turn signal], then it would not be expected that she would necessarily alter her course or speed [although it would obviously be open to her]. Indeed, had the plaintiff maintained his course and speed, he would almost certainly have had enough room to pass the Ford on its left as it [the Ford] was in the process of turning out of the motorcycle's path."
[9]
Joint report of the expert witnesses
Mr Jamieson and Mr Keremidas were directed by the court to meet and identify any areas of agreement. Following their meeting, a document entitled 'Areas of Agreement' was tendered as exhibit 12 in the proceedings. It set out the following areas of agreement:
1. The point of impact between the motorcycle and Ford is defined by the existence of a gouge mark identified by police marker "F".
2. The pre-impact skid marks from the motorcycle indicate both front and rear wheel braking from the Kawasaki over a distance of about 20 to 21 metres.
3. The tyre marks from the Ford are post-impact marks and the vehicle was moved from its original rest position.
4. It is agreed that the post-impact marks from the Ford involved skidding and deflection from impact. It is not possible based on the physical evidence to quantify the extent of deflection.
5. William Keremidas indicated in his report a calculated pre-braking speed of 78 to 93 km/h. JJ, on reflection, considers the pre-braking speed of the motorcycle to be within the lower end of that range.
6. The location of the curve advisory sign was between 26 to 27 metres from the point of impact.
7. The approximate centre of dairy apron to the point of impact was about 100 metres.
8. It is agreed that the section of the WK report dealing with the potential motorcycle's approach speed is dependent on the precision of the location where the overtaking of the energy truck took place and therefore the potential speed of the motorcycle deduced from that information would be subject to a wide variation.
9. It is agreed that if the defendant had activated her right turn indicator for at least five seconds before impact, the crash was probably avoidable, by the plaintiff.
10. Assuming the defendant was travelling at a speed of 10 to 15 km/h, 5 seconds of indicator activation equates to 14 to 21 metres. Therefore if she activated her indicator only 10 metres from impact, then at these speeds the crash was unavoidable. Put another way, assuming she activated her indicator only 10 metres from impact, her indicator would only have been visible between 2.8 seconds and 4.2 seconds before impact.
11. Assuming the defendant was travelling at a speed of 10 to 15 km/h, and that she activated her indicator 27 metres from impact then it would have visible between 6.5 seconds and 9.7 seconds.
12. Had she looked to the rear (mirrors or otherwise), immediately before engaging her right indicator, then she would or should have observed the motorcycle approaching or overtaking her vehicle. WK agrees, providing the headlight was relatively "bright".
[10]
Site diagram
Also tendered by the defendant as Ex 3 were four site diagrams comprising a collision diagram, reconstructed scene diagram, overall site diagram, and enlarged site diagram. These diagrams assist in an understanding of the physical layout of the scene of the collision, and the location of the various items of objective evidence referred to by the expert witnesses. These items include, for example, the pre-impact skid marks of the plaintiff's motorcycle, the gouge mark on the eastern side of the roadway, the skid marks of the defendant's vehicle, and the rest position of the both vehicles, together with various police markings.
[11]
Evidence of Mr John Jamieson
Mr Jamieson was required for cross-examination. He agreed that the collision was a significant impact to the defendant's vehicle. Mr Jamieson described it as both "a glancing blow" and "a side-swipe impact". When asked what he intended to convey by those expressions, he stated:
"A: Yes, a "glancing blow" or "side-swipe impact", they're marginally interchangeable. The motorcycle did not fully engage the truck or the truck did not fully engage the motorcycle, which means that, once contact was made between the motorcycle and rider to the driver's door of the truck, he deflected off to the right, towards a gate post."
Mr Jamieson agreed that it must have been a significant impact on the defendant's vehicle to force it to move some distance to the north. However, his evidence was that a "glancing blow" was an angular blow which could still impart significant force.
Mr Jamieson's opinion evidence as to the speed of the plaintiff's motorcycle, based on the trajectory of the plaintiff, was challenged in the following evidence:
"Q: You can't come to any reliable conclusions about speed based upon the trajectory of the motorcyclist when his trajectory was interrupted by the guide post, wasn't it?
A: My conclusions in relation to trajectory and the motorcyclist was in the context of him impacting the post.
Q: What you've said is that if he'd been going any faster, he would have travelled further in his trajectory? That's what you've said in essence, isn't it?
A: No, he did not. His trajectory was not interrupted by the post.
Q: You assumed it wasn't, correct?
A: Yes.
Q: You can't come to any reliable throw distance calculations based on trajectory if he's hit the post with sufficient violence to inflict brain damage on him, can you?
A: No."
Mr Jamieson also agreed that the distance from the advisory sign to the point of impact was longer than the straight line distance of 27 metres, and was in fact, a little under 30 metres travelled by the defendant's vehicle.
Mr Jamieson gave evidence that if the defendant had travelled that 30 metres at 10 km/h, the time would be calculated by 30 divided by 2.7 metres a second, which he assessed at "12 or something", but agreed that it was well over 10 seconds (in fact 11.11 seconds). At 15 km/h, a vehicle travels at 4 metres a second, which Mr Jamieson assessed at, "so there's 7, 8 seconds", whereas in fact, the calculation would be 7.5 seconds. He was then asked:
"Q: Yes, and both of those periods of time with a blinker displayed, you would agree, would you not, gives sufficient warning to any vehicle approaching from the rear, don't they?
A: Using these, using those assumptions, you're absolutely correct.
Q: In fairness, you have actually said in your report on the same page that we've last looked at, page 18, that the period of time when the blinker was on is critical to determining the avoidability of this accident, isn't it?
A: Have I said that, sorry?
Q: Because if that blinker was on display for six seconds, eight seconds, or even something as long as 12 seconds, the motorcyclist should not have been overtaking it, should it?
A: Well, if the, if the blinker was visible and working, you're correct."
Mr Jamieson was taken to the defendant's record of interview and particularly asked to read from question 158. He was then asked:
"Q: Do you agree that a fair reading of that discloses that, after putting her blinker on at the yellow sign, she travelled probably 10 metres and then went to turn?
A: Yes.
Q: So that, a fair construction of those answers on that page was that the turn commenced after she had travelled 10 metres with her blinker on?
A: Yes, look any number of things actually but--
Q: But that's a reasonable construction?
A: Yes.
Q: That's a different assumption than the one you made for the purposes of your report of a journey of 10 metres with the blinker on, isn't that right?
A: It could be explained either way.
Q: Is it not different to the one that you agreed, you assumed, when you referred to a distance of 10 metres? It's 10 metres plus the turn, isn't it?
A: Just a moment, yes.
Q: That means, accepting that that's what was said, that the distance on which the blinker was displayed was longer than the distance of 10 metres that you referred to in your report, isn't it?
A: Either a lot in the context of the measured position of the sign, through to a little if it was a sharp turn."
Mr Jamieson agreed that "four, five or six seconds before she starts to turn, that's a more than adequate warning". He went on to say that four seconds was too short, five was "margin", and six was "okay", meaning adequate warning. He agreed that he did not criticise a five second activation of the blinker in his report and he agreed that if the blinker was displayed for a distance of 27 metres, plus the turning distance, then the plaintiff should have been able to see it, if the blinker was roadworthy and functional.
Mr Jamieson was asked about [12] of Ex 12, and the agreement between him and Mr Keramidas, that had the defendant looked to the rear immediately before engaging her right indicator, then she would or should have observed the plaintiff. It was put to him that those words implied that had she looked earlier than immediately before engaging the right indicator, then the plaintiff would not have been observable. He denied that was implied, agreed that it was certainly possible, but qualified his answer by saying, for that to occur, the plaintiff would have needed to be travelling "very, very quickly", and certainly faster than the range of speeds given by Mr Keramidas.
Mr Jamieson also agreed that, based on his experience, motorists driving motor vehicles, even observant drivers of motor vehicles, frequently have difficulty picking up motorcyclists in their rear vision mirrors. Mr Jamieson was also asked about the reliability of measuring distances, in this case, in the context of the defendant's evidence that she indicated at the yellow road sign. He gave the following evidence:
"Q: Would you agree with this, that if you have a feature, such as the road sign in this case, identified by a witness, marked by police officers from her indications, that is a fixed point that one can accept and rely upon for the purposes of measurement, such as being put to you?
A: Yes.
Q: It's a more reliable method of measuring a distance than someone's estimate of what that distance was, do you agree?
A: Yes, but with a - with a qualification.
Q: What's the qualification?
A: While you are correct in your general proposition, if someone says, "I put the indicator in this instance at the sign", does it mean at the sign or commenced to perform the action of putting the indicator on at the sign, because there's some delay after that.
Q: It could be a metre either way, something -
A: No. It could be longer than that. It could be a second or two.
Q: All we know is that that's the reference point, don't we, allowing for some leeway as to what you've just described?
A: Yes, yes."
In re-examination, Mr Jamieson was referred to Ex 12. He agreed that [10] thereof, namely, the agreement that the crash was unavoidable, was from the point of view and perspective of the plaintiff. He further agreed that [12] directed attention to the activity of the defendant.
Mr Jamieson was further referred to photograph number 25 in Ex 10 and the skid marks shown therein made by the defendant's vehicle post-impact. He was asked:
"Q: Does that indicate to you any sign of lateral movement?
A: No."
[12]
Evidence of Mr William Keramidas
Mr Keramidas was cross-examined on his reports, being Exs 1, 2 and 11. He agreed that in his profession, estimates given by lay people, particularly of moving vehicles or in moving vehicles, of distances, are notoriously unreliable. Mr Keramidas was questioned about the site lines available to the defendant. He was asked:
"Q: In the context of the defendant having looked in a rear view mirror, and assessed that the motorcycle was approaching her, it would have been clearly open, in your expert opinion, for her to slow down further, correct?
A: Yes.
Q: Pull over to the left. Correct?
A: Less so, but yes.
Q: Not execute the turn across the overtaking lane?
A: Possibly, yes.
Q: There was nothing approaching her, from your understanding of the evidence, from the north?
A: That's correct."
Mr Keramidas was asked about the defendant's evidence concerning the 10 metre mark as follows:
"Q: The sole reference to 10 metres, I suggest to you, is not the COPS event entry, but there are other references in the material, particularly in the record of interview and the defendant's sworn evidence, that the 10 metre markers in alternative?
A: I agree with you, however, my understanding is that the 10 metres relates to the point where she started to turn, which if the turn, in my estimate, is about 10 metres to take the arc, is about 20 metres from impact, so I agree with you, but I've understood it to be slightly different in terms of the context.
Q: Did you not understand the evidence to be that she engaged the right hand indicator at about 10 metres from turning?
A: That's my understanding of in part what she said."
Mr Keramidas agreed that it was a reasonable proposition given testing of the motorcycle's ignition and lights, that the light was on before the incident. He was then asked:
"Q: It is the fact, is it not, that had she consulted her mirrors before engaging her indicator, be it at 10 metres before the turn or 27 metres before the turn, she would have seen the cycle?
A: That would be a reasonable proposition. The only reason why I hesitate from agreeing with that entirely is I don't know what the state of the act headlight brightness was. Assuming it was a reasonable condition, then I agree with you (sic).
…
Q: But assuming that it had been through regular registration checks, that would attend to that sort of matter generally speaking?
A: Generally speaking it would, yes."
In re-examination, Mr Keramidas was asked about the particular rear vision mirror on the driver's side of the defendant's vehicle:
"Q: What is the position as far as sight lines from a mirror of that construction and in that location?
A: Well, the sight line - mirrors are designed and constructed in order to provide approximate rear view of objects, so there's no magnification to them. It means that an object that is a considerable distance away will be quite small, and therefore while it technically might be in the, in the field of view, or within the mirrored surface, it might not actually be detectable against the background.
Q: Once a vehicle starts to turn, I think it's fairly obvious, but what happens to the vision that would be available in the mirror if one were then to employ it?
A: The field of view obviously changes to directly behind the vehicle's path, so the more you turn, the less view there is in the direction of the roadway from which you are turning.
Q: And the less view there is of any vehicle, for instance, in an overtaking position?
A: Correct."
[13]
Factual Findings
Having regard to the whole of the evidence, and the matters agreed between the expert witnesses, I make the following factual findings on the balance of probabilities:
1. The distance of the mid-point of the dairy entrance to the driveway of the defendant's home was approximately 100 metres.
2. From the driveway of the dairy to the south, there was a clear sight line of 440 metres.
3. From the driveway of number 823, the sight line to the south was 540 metres.
4. From the south towards the dairy, Queens Pinch Road had a slight downhill grade of 1.5 per cent. At a point between the dairy and number 823, that grade became 4.5 per cent. Thus, there was a shallow crest in the roadway approximately 60 metres to the south of number 823.
5. At a point 27 metres to the south of the driveway at number 823, on the western side of Queens Pinch Road, there was a yellow coloured traffic advisory sign for vehicles travelling north.
6. Opposite number 823, was a gate on the western side of Queens Pinch Road with a gravel turnout between the paved surface of the roadway and the gate.
7. I find that the plaintiff was riding his motorcycle north on Queens Pinch Road either at, or within the speed limit of 100 km/h for that road.
8. I find that the defendant, when leaving the driveway to the dairy and before driving onto Queens Pinch Road, looked to the south and saw no vehicle on Queens Pinch Road heading north.
9. I find that the defendant activated her right blinker before manoeuvring her four wheel drive vehicle onto Queens Pinch Road, but that the blinker de-activated shortly thereafter automatically.
10. I find the defendant accelerated her vehicle from stationary to travelling at 15 km/h north on Queens Pinch Road.
11. I find that the defendant intended to turn right into the driveway of number 823 Queens Pinch Road, and prior to doing so, she activated her right blinker and engaged first gear, thereby slowing her vehicle speed down.
12. I find that at no time prior to the impact did the defendant look in her rear vision mirror or side mirrors, for vehicles travelling behind her, after leaving the dairy.
13. I find that the point of impact between the vehicles was on the eastern side of Queens Pinch Road, adjacent to the southern border of the gravel driveway entrance to number 823, just to the north of the termination of the motorcycle's skid mark. This was defined by the existence of the gouge mark identified by police marker 'F'.
14. At that point in time, the defendant's vehicle was turning into the driveway, and it was placed almost fully across the eastern side of Queens Pinch Road.
15. The motorcycle collided at a relative angle of 30 degrees between it and the defendant's vehicle.
16. The impact was a severe impact of considerable force, forcing the defendant's vehicle to the north of its intended course of travel.
17. Following impact, the plaintiff was thrown from his motorcycle in a generally north-easterly direction until he collided with the northern gatepost to the property.
18. The defendant braked heavily, causing her vehicle to skid to a stop, facing generally north-east across the driveway.
19. The plaintiff's motorcycle left skid marks indicating both front and rear wheel braking of about 20 to 21 metres, on the eastern carriageway.
20. Prior to the collision, the headlight on the motorcycle was on.
21. I find that had the defendant looked to the rear by means of her rear view and/or side mirrors, immediately before she engaged her right indicator, she would or should have observed the plaintiff's motorcycle approaching or overtaking her with its headlight on (thus making it more visible to her).
22. I find that the plaintiff slowed his motorcycle's speed as he approached the defendant's vehicle from behind.
23. I find the plaintiff commenced to overtake the defendant's vehicle by proceeding on to the eastern side of Queens Pinch Road.
24. At a point just to the south of the skid marks made by the motorcycle braking, the plaintiff perceived that the defendant was turning her vehicle into the driveway of number 823 Queens Pinch Road and undertook emergency braking. The collision was, at that point, unavoidable.
25. The plaintiff was a very experienced motorcyclist whose usual practice was to overtake vehicles in front of him when he considered it safe to do so.
[14]
Issues to be determined
With respect to liability, there are two significant factual issues to be determined on the balance of probabilities, namely:
1. For how long was the defendant's indicator activated prior to impact?; and
2. What was the speed of the plaintiff before he braked?
Subject to the resolution of those matters, the following issues are to be determined:
1. Was the defendant negligent in the driving management and control of her motor vehicle?
2. If so, was the plaintiff guilty of contributory negligence? and;
3. What are the plaintiff's damages?
The determination of these matters requires application of the following legal principles and legislation.
[15]
Legal principles and applicable legislation
Pursuant to s 3B(2)(a) of the Civil Liability Act 2002 (NSW) ('CLA'), Divisions 1-4 and 8 of Pt 1A (Negligence) apply to motor accidents. Therefore, in determining whether a driver of a motor vehicle breached his duty of care, and whether such breach was causative of the plaintiff's injuries, the court must apply ss 5B, 5C and 5D of the CLA.
In Manley v Alexander (2005) 80 ALJR 413, the plurality of the High Court stated, in relation to a driver's obligation to others using the roadway, in that case the respondent, who was intoxicated and lying on the roadway:
"11 Driving requires reasonable attention to all that is happening on and near the roadway but that present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.
12 It may readily be accepted that the possibility that someone would be found lying on a roadway, like Middleton Beach Road at 4am, is properly to be described at remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction 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."
In Marien v Gardiner; Marien v HJ Heinz Company Australia Ltd [2013] NSWCA 396, another pedestrian case, Meagher JA (with whom Macfarlan and Emmett JJA agreed), further explained the duty of care as follows:
"33 The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.
34 The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).
35 Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'. That in turn requires 'simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path'.
36 The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
37 Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."
The following are relevant regulations extracted from the Road Rules 2008 (NSW), which the parties agreed were applicable at the time of the accident:
"48 Giving a right change of direction signal
(1) Before a driver changes direction to the right, the driver must give a right change of direction signal in accordance with rule 49 for long enough to comply with subrule (2) and, if subrule (3) applies to the driver, that subrule.
(2) The driver must give the change of direction signal for long enough to give sufficient warning to other drivers and pedestrians.
140 No overtaking unless safe to do so
A driver must not overtake a vehicle unless:
(a) the driver has a clear view of any approaching traffic, and
(b) the driver can safely overtake the vehicle.
142 No overtaking to the right of a vehicle turning right etc
(1) A driver must not overtake to the right of a vehicle if the vehicle is turning right, or making a U-turn from the centre of the road, and is giving a right change of direction signal.
144 Keeping a safe distance when overtaking
A driver overtaking a vehicle:
(a) must pass the vehicle at a sufficient distance to avoid a collision with the vehicle or obstructing the path of the vehicle, and
(b) must not return to the marked lane or line of traffic where the vehicle is travelling until the driver is a sufficient distance past the vehicle to avoid a collision with the vehicle or obstructing the path of the vehicle."
As to the content of the duty of care of a driver making a right hand turn in circumstances where there was an overtaking vehicle coming from behind him in the same direction, the plaintiff relied on the High Court of Australia's judgment in Cocks and Anor v Sheppard (1998) 25 ALR 325. At p 331, Gibbs J (as he then was), Barwick CJ, Stephen and Aickin JJ agreeing, said that the driver of the turning vehicle was guilty of a want of reasonable care for his own safety; …
"in making his turn without reasonable steps to ascertain whether there was any vehicle behind him which was likely to overtake him. … The respondent was not entitled to ignore the possibility that some other fast moving vehicle had come on the scene, because no driver can act on the assumption that there is no other vehicle on the highway without looking to see whether the assumption is correct."
The court thus found that the driver of the turning vehicle, by not first looking to see if it was safe to do so, was guilty of contributory negligence (he being the injured party).
In Ilsley v Boots (1970) 2 NSWLR 551, the defendant gave a signal indicating his intention to turn right 100 feet prior to reaching a gateway in which he intended to turn. Prior to turning he veered his vehicle to the left of the road and then commenced to turn his vehicle into the gateway. It was then he became aware from the screech of tyres from a vehicle overtaking his vehicle that a collision was inevitable. The trial judge concluded that the defendant was not negligent, however, the Court of Appeal held that the defendant breached his duty of care by not ascertaining that there was no car approaching from behind him at the time when he commenced his turn, or that no car was approaching in such proximity that he should take that proximity into account. The defendant did not see the car in which the plaintiff was travelling, and he knew nothing of the state of traffic on the road behind him when he commenced the turn. This was a failure to make a proper observation of the roadway, and a breach of the driver's duty of care that was still operating and operative at the time when the collision occurred. Jacobs JA (with whom Mason P and Holmes JA agreed), went on to hold that if the defendant had looked and seen the approaching vehicle, that vehicle was so close that some delaying action was required before the defendant commenced to turn.
Finally, in Richards v Picco [2000] NSWCA 35, Meagher JA (dissenting), referred to Cocks v Sheppard and stated at [18]:
"There is no doubt duty exists to take reasonable care to prevent a foreseeable injury to a vehicle travelling behind one."
However, the majority (Heydon JA, Mason P agreeing) found on the facts in that case that the failure of the driver to check the whereabouts of an overtaking cyclist was not causative of the injury suffered by that cyclist as, if she looked immediately before putting on her right hand indicator and immediately before turning, she would have seen nothing different from what she had seen earlier, save that the cyclist was closer to her vehicle. There was nothing to indicate that the cyclist was about to pass or overtake her.
Contributory negligence in relation to a motor accident is to be determined by application of both s 138 of the Motor (Accidents Compensation) Act 1999 ("MACA") and ss 5R and 5S of the CLA.
Section 138 of the MACA provides relevantly as follows:
"138 Contributory negligence - generally
(1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.
…
(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.
(4) The court must state its reasons for determining the particular percentage."
Division 8 of the CLA is headed "Contributory negligence". It provides:
"5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose;
(a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) The matter is to be determined on the basis of what that person knew or ought to have known at the time.
5S Contributory negligence can defeat claim
In determining the extent of the reduction in damages by reason of contributory negligence, a court may determine a reduction of 100 per cent if the court thinks it is just and equitable to do so, with the result that the claim for damages is defeated."
In Gordon v Truong [2014] NSWCA 97, Basten JA (Macfarlan JA agreeing), set out the principles applicable in determining contributory negligence by application of s 138 of the MACA and ss 5R and 5S of the CLA as follows:
"15 The principles applicable in determining whether a person has been negligent include the "General principles" set out in s 5B. Applying these principles as required by the statute is not without its difficulties. Where the plaintiff and defendant are both drivers in control of similar vehicles, questions of negligence and contributory negligence can readily be assessed according to the same broad standards. However, where the plaintiff is a pedestrian and the defendant a driver of a vehicle, the negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is, generally, to be assessed against a risk of harm to him - or herself. (It is possible that the carelessness of a pedestrian may create a risk of harm to other drivers, for example, if a car is forced to swerve to avoid a pedestrian, but that is not this case). The harm which the motor vehicle is likely cause to the pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind.
16 The purpose of s 5R may be gleaned from the recommendations in the Review of the Law of Negligence: Final Report (September 2002) which are, in this case, reflected in the statute. At par 8.7, the Report stated:
Should the law allow people to take less care for their own safety than it requires others to take for their safety? … Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?
17 The Report then stated at par 8.11:
Leading text book writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same. There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendant. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel's view, this approach should not be supported.
18 The penultimate sentence was supported by reference to three judgments in the High Court and two in the South Australian Supreme Court. The comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760 at 762-763, are in point. Referring to the South Australian equivalent of the 1965 Act, s 9(1)(b), Murphy J stated:
The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision. … For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision."
The correct application of these principles was further explained in Davis v Swift [2014] NSWCA 458 by Meagher JA (with whom Leeming JA agreed) as follows:
"23 Section 138(1) of the MAC Act provides that the 'common law and enacted law as to contributory negligence' apply to an award of damages in respect of a motor accident, except as provided by that section. The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act 1965 (NSW (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility.
24 The starting point is s 9(1) which provides that if the claimant 'suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person' the damages recoverable in respect of the wrong 'are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage'. That description of contributory negligence reflects the common law position that the claimant's lack of care must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21].
25 The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; 59 ALJR 492 at 494 as follows:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
26 Section 138(3) is in different terms to s 9(1) and the other State provisions based on s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (UK). Whereas those provisions require the Court when assessing what is 'just and equitable' to have regard 'to the claimant's share in the responsibility for the damage', s 138(3) provides:
(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.
27 Section 74(3) of the Motor Accidents Act 1988 (NSW) is in the same terms. In Nicholson v Nicholson (1994) 35 NSWLR 308 at 333-334, Mahoney JA suggested a reason for the use of the broader language. The concept of contributory negligence involves the plaintiff's lack of care contributing to the damage. However, the effect of s 74(2) which is in similar terms to s 138(2), is to require a finding of contributory negligence in cases where the act or omission may not have caused or contributed to the damage claimed. Relevantly in that case, s 74(2)(c) required a finding of contributory negligence 'where the injured person … was … not wearing a seat belt as required' by law. That being the position, the broader language may have been used to allow the Court in such cases to recognise that it would be unjust and inequitable, where there was no such causation or contribution, to reduce the damages otherwise recoverable. The remaining members of the Court, Kirby P with Meagher JA agreeing, also held that the finding of contributory negligence required by s 74(2)(c) did not constrain the inquiry as to what was 'just and equitable' or prevent consideration of all of the circumstances, including whether the absence of a seat belt contributed to the damage claimed.
28 In a case that does not involve a finding of contributory negligence made under s 138(2) or deemed fault on the part of the owner or driver, an assessment of what is 'just and equitable in the circumstances of the case' will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek. See the discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180; 43 MVR 315 at [54] - [63]. In Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [157] Hayne J considered s 74(3) to require the undertaking of such a comparison: cf Kirby J at [133]].
29 Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence."
More recently, in Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (Barrett and Gleeson JJA agreeing) said as follows:
"161 The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case.
162 As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a) - (d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 138(3) required the court to reduce the damages recoverable 'by such percentage as the court thinks just and equitable in the circumstances of the case.'"
[16]
Determination of the factual issues (referred to in [77] above)
[17]
The defendant's indicator
The evidence established that estimates given by drivers of moving vehicles as to time and distance in a dynamic situation such as one leading to a major collision, are notoriously unreliable. In this case, no issue has been raised as to the credit of the plaintiff, who had no recollection of the accident as a result of his brain injury, nor the defendant, who was clearly shocked by the incident, and made frank concessions, particularly about her failure to look in the rear vision mirror, or side mirror, of her vehicle at any relevant time before the collision. The defendant's evidence as to when she activated the right hand blinker to signal her intention to turn right into the driveway at number 823 Queens Pinch Road, was, however, unreliable for the following reasons.
1. When first asked by the police at what stage in her journey between the two gates did she put her indicator on, the defendant answered "probably at the yellow sign out here." She was then asked:
"Q: Do you have a memory of when you put it on?
A: Well I can remember going like that to turn it on.
Q: Okay.
A: But I just turned into the gate and he just hit me."
1. Notwithstanding that the yellow advisory sign that the defendant was referring to was situated 27 metres to the south of the driveway into which she was about to turn, she was asked:
"Q: Then how long after you put your blinker on did you turn?
A: I probably came down the road probably 10 metres, then when I went to turn into the gate, that's when he hit the door."
1. The defendant repeated her evidence that she had travelled 10 metres after she had turned her blinker on, before she turned into the driveway. She later described that process by saying:
"But all I, put the blinker on, turned into the gate and the next things he bounced off the door and he was gone … that's what I remember."
1. The defendant was then asked:
"Q: How long was your blinker on for? Like I think we said, I think you said 10 metres?
A: Well, …
Q: How many seconds though would it have been on for?
A: Well I don't know, probably four, five, six.
Q: So you say four, five or six seconds before you started to turn. Is that what you're saying?
A: Yeah.
Q: Four or five seconds passed and then you started your turn. Is that, is that what you're saying?
A: Well I had the blinker on.
Q: Yep.
A: I approached the gate. And I turned and that's when he bounced off the door.
Q: Yep okay. So four or five seconds your blinker was going for and I think about 10 metres you told me …
A: Yeah, about 10 metres."
1. The defendant's evidence in respect to this issue is set out at para [43] above. In that evidence she said she had the blinker on for six or seven seconds. In cross-examination, the defendant said it was six or seven seconds before impact. She said it was engaged at the sign until the entrance of her property, a distance of "20-odd" metres, which was a sufficient warning to any overtaking vehicle of her intention to turn right.
2. When cross-examined on the evidence outlined above in relation to the distance of 10 metres travelled before she turned into the gate, the defendant agreed that she had travelled 10-15 metres with her indicator on before turning into the gate (see [46] above). She also agreed that she did not follow her habit on this occasion when she turned into the house, and that the journey she was undertaking was a routine journey from one part of the dairy property to the homestead. In that routine, she agreed that she had admitted the vital step of looking around to see if anyone was coming from behind.
I therefore do not accept the defendant's evidence as to the time her right indicator was illuminated. Having regard to all of that evidence, I find, on the balance of probabilities, that the defendant activated her right hand indicator, indicating her intention to turn into the driveway of 823 Queens Pinch Road, at a distance of approximately 10 metres to the south of the southern edge of that driveway. At that time, her vehicle was travelling at 15 km/h and therefore the time period during which the right hand indicator was activated prior to the defendant commencing her turn, would have been two and a half seconds. Allowing for an additional three metres of travel by the defendant's vehicle once she commenced her turn into the driveway, would result in a time approximating three seconds. On that analysis, there was insufficient time for the plaintiff to take evasive action, as he was already in the process of overtaking the defendant's vehicle.
The finding set out above is more probable than interpreting the defendant's evidence to mean that she commenced to activate her right hand indicator at a distance of 27 metres from the driveway (i.e. adjacent to the travel advisory sign), and then commenced her turn into that driveway 10 metres further to the north, as that would involve the vehicle turning in a shallow arc over a distance of 17 metres until it reached the driveway. That is not consistent with the objective evidence, namely, the skid and gouge marks referred to above, nor her evidence of turning into the gateway of her property.
[18]
The plaintiff's pre-braking speed
Mr Keramidas estimated the pre-braking speed of the motorcycle within a range of 78-93 km/h. Mr Jamieson estimated that the speed was within the lower band of that range. It is impossible to make a concise finding of the exact speed of the motorcycle, but it is unnecessary to do so. What the expert evidence does confirm is that the plaintiff had slowed his motorcycle from the speed at which he had been travelling, namely, at approximately 100 km/h, which was the speed limit, down to a speed where he would have believed it was safe to travel to overtake the slow moving vehicle ahead of him. As outlined above, he was already on his incorrect side of the road, and inferentially, had commenced his overtaking procedure at the time when he perceived a hazard, namely, that the vehicle in front was about to turn right, and engaged in emergency braking of his motorcycle. Whilst it is somewhat speculative, one possibility is that the plaintiff, having commenced his overtaking procedure, may have commenced to accelerate his motorcycle before engaging in emergency braking.
[19]
Determination as to liability
In determining liability in this matter, I am conscious that the plaintiff, due to his head injury, has given no evidence of what actually occurred on the day in question. His evidence was confined to his usual practice, albeit a longstanding practice, given his almost life long experience in riding motorcycles. The defendant gave her evidence as to what occurred in a frank and forthright manner, and it was not submitted on behalf of the plaintiff that her credit was impugned. Rather, it was the reliability of her evidence as to the circumstances which brought the vehicles into collision that was put in question. Whilst this is not a case of weighing one party's testimony against that of another party, I am mindful that I must have regard to the evidence establishing the objective facts, the witnesses' motives, and the overall probabilities - see Nominal Defendant v Smith [2015] NSWCA 339.
The objective facts establish the point of impact (i.e. the gouge mark), and the fact that the plaintiff was already in the course of overtaking the defendant's vehicle at the time he commenced emergency braking (the motorcycle skid marks). The other objective evidence was that the motorcycle's light was on before impact.
The defendant conceded that at no time prior to impact did she look in either her rear vision mirror or side mirrors for any vehicles travelling behind her. The last occasion on which she looked to the south was before she drove onto the roadway from the dairy entrance, 100 metres to the south of the point of impact. At that time, she had a clear line of sight of some 440 metres to the south. From a stationary start, she accelerated her four-wheel drive farm vehicle to a speed of approximately 15 km/h before she commenced to turn into the gateway of her home. On the balance of probabilities, that journey would have taken in the order of 30 seconds or more, allowing for time taken for the vehicle to reach 15 km/h. A vehicle travelling at 100 km/h travels a distance of 27.77 metres per second. Therefore, in the time taken by the defendant to travel from the dairy entrance to the commencement of her right turn, the plaintiff, travelling at 100 km/h, would have traversed over 800 metres in distance.
The evidence of the two experts in this matter, namely, Mr Jamieson on behalf of the plaintiff, and Mr Keramidas on behalf of the defendant, is not determinative of the issue of liability. Both experts acknowledged that the opinion they expressed in respect of various matters depended on assumptions made by them and were subject to the fact finding process of the court. Their evidence was, however, of assistance in that fact finding process, particularly Ex 12, which set out the areas upon which they agreed. Further, both made appropriate concessions when assumptions were put to them which differed from the assumptions upon which their evidence was based. For those reasons, it is unnecessary to further analyse the opinions expressed in their reports and determine which is to be preferred. What was clear, was that both agreed that the time difference between the indicator being activated 10 metres from impact, or adjacent to the hazard warning sign, were significant, if not critical to the fact finding process (see [51] above).
Applying the authorities set out above, the defendant had a duty to take reasonable care for the safety of other road users, including the plaintiff, who was travelling in the same direction and approaching her from behind. Pursuant to s 5B of the CLA, the relevant risk of harm here was that she would make a right hand turn across the path of an overtaking vehicle, the presence of which she was not aware, because she at no time looked in her rear vision mirror or side mirrors, before turning. That risk was foreseeable and not insignificant. Therefore, in my view, a reasonable person in her position would have taken those precautions as required by s 5B(1) of the CLA, namely, to look in her rear vision mirror and side mirrors. As agreed by the experts called on behalf of the parties, had the defendant looked to the rear, by use of mirrors or otherwise, immediately before engaging her right indicator, she would or should have observed the motorcycle approaching or overtaking her vehicle. Its headlight was on and there was no reason why, had she looked, she would not have seen the plaintiff's motorcycle, and stopped her slow moving vehicle before turning thereby avoiding a collision. By not doing so, she breached her duty of care.
As to causation, pursuant to s 5D of the CLA, generally, in motor vehicle accident cases, where negligence is established pursuant to ss 5B and 5C, there is little issue that factual causation follows pursuant to s 5D(1)(a), and once that is established, there is usually no issue that it is appropriate for the scope of the appellant's liability to extend to the harm caused to the injured party, pursuant to s 5D(1)(b) - see for example Nominal Defendant v Bacon [2014] NSWCA 275 at [15] and [16]. The appropriate test for factual causation is the "but for" test, and I find in the circumstances pertaining here, that test if satisfied and the scope of liability is clearly established. I therefore find that the defendant was liable for the plaintiff's injuries. In so finding, I reject the defendant's submission that had she looked in those mirrors, she may not have seen a motorcycle in any event. The headlight was on, and would have been readily visible. Further, the defendant was not entitled to assume, once she left the dairy, that there would be no traffic on the road behind her, particularly as she was travelling at a very slow speed, and the speed limit was 100 km/h. Richards v Picco, supra, may be distinguished on its facts.
[20]
Contributory negligence
As set out above, s 138 of the MACA and ss 5R and 5S of the CLA govern the determination of the issue of contributory negligence. In accordance with the authorities cited above, the negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is to be assessed against a risk of harm to himself. That risk of harm may be seen to be greater in the case of a motorcycle rider who may be considered to be more vulnerable to serious injury by being unprotected. However, consideration must be given to the statutory proscriptions in ss 5B and 5C of the CLA in determining whether the plaintiff contributed to his own injuries.
The fact finding analysis set out above has established that the plaintiff was travelling at or below the speed limit as his motorcycle closed in on the defendant's vehicle. He was aware that the road was subject to stock movements and use by farm vehicles. As he approached the defendant's vehicle, he slowed the speed of his motorcycle and had clearly made a decision to overtake the vehicle travelling slowly in front of him. That decision placed him on the incorrect side of the roadway, however, there was no vehicular traffic travelling south, and had the defendant's vehicle not turned, he would have safely overtaken it. The evidence established that the defendant did not brake, so the plaintiff was not warned by the brake lights on the vehicle he was overtaking. As set out above, the first notice the plaintiff could have had of the defendant's intention to turn right was the illumination of the right hand indicator light on the defendant's vehicle, approximately three seconds prior to impact. Having regard to the known perception/reaction time of approximately 1.5 seconds, it was only upon observing that indicator that the plaintiff took evasive action by means of emergency braking of both front and rear wheels on the motorcycle as evidenced by the skid marks left on the incorrect side of Queens Pinch Road. Whilst that emergency braking slowed the speed of the motorcycle to approximately 40 km/h at the time of impact, it was insufficient to avoid what was, by then, an inevitable collision between the vehicles.
The plaintiff relied on the Court of Appeal's decision in Jones v Rice (1987) 5 MVR 77, as authority for there being no finding of contributory negligence in circumstances where an overtaken vehicle deviates from its normal course, such as by turning right, and where the overtaking driver can be seen to have been acting reasonably in the circumstances. That case may be distinguished on its facts as prior to turning right, the defendant veered to the left and braked. Further, the plaintiff was emphatic that no right turn indicator signal had been activated.
Here, the plaintiff knew that there was a working farm property straddling Queens Pinch Road, and that the road was used by farm vehicles crossing that road. In approaching a vehicle travelling at 15 km/h from behind, on a rural road, the plaintiff, in taking reasonable care for his own safety, should have been aware of the possibility of the defendant's vehicle making a right hand turn into her property, and should have slowed his speed before committing to overtaking that vehicle to a speed where he was reasonably certain the vehicle would not turn into his path, and that it was safe for him to overtake. In the circumstances I find that the plaintiff was travelling at an excessive speed for him to do so, and was too close to the defendant's slow moving vehicle. Precautions were available for him to avoid a collision, namely, travelling at a lower speed and keeping a safe distance behind the defendant's vehicle until he was satisfied it was safe for him to overtake (see particulars of contributory negligence (c) and (d) as pleaded by the defendant).
Applying the principles set out above, the plaintiff did not take sufficient care for his own safety by taking those precautions against the risk of harm of collision with the defendant's vehicle and thereby injuring himself, and it is just and equitable in all of the circumstances that any damages he received be reduced by 25 per cent for his own contributory negligence.
[21]
Damages
The parties have agreed that the plaintiff is entitled to an award of damages for non-economic, loss pursuant to the MACA, of $300,000.00. The parties have also agreed that the plaintiff's past treatment expenses (inclusive of Medicare expenses) is the sum of $7,011.00. Further, the parties agree if the plaintiff is to be awarded damages for future paid care, the appropriate rate of payment is $44.00 per hour.
The remaining heads of damages claimed by the plaintiff and to be assessed by the court are past and future economic loss (including lost superannuation entitlements), future domestic assistance on a paid commercial basis, and future treatment expenses.
The plaintiff's claim in respect of those heads of damages is as follows:
Past wage loss $55,352.00
Future economic loss $275,000.00
Past and future loss of superannuation entitlements $45,456.00
Future paid care $324,262.00
Future out of pocket expenses $60,000.00
[22]
The defendant's submissions in respect of those heads of damages may be summarised as follows:
Past wage loss $5,000.00
Future economic loss - either a buffer, or discount economic loss into the future by way of vicissitudes well in excess of 50%
No domestic care on a paid basis into the future, or alternatively, a modest allowance of no more than one hour per week
Future treatment expenses $10,000.00
[23]
The plaintiff was born on 8 May 1970 and was aged 41 years at the date of the accident and is now aged 45 years. The plaintiff had suffered a number of physical injuries in motorcycle accidents at age 16 and 17. His injuries included a fractured left ankle and fractured wrists, and a fracture at T5 level. In respect of that injury, which he suffered at aged 16, he still required care with lifting prior to the subject accident. At age 17 he suffered a head injury with loss of consciousness and a period of post-traumatic amnesia for one week, but suffered no brain impairment sequelae following that accident. He also had a work injury, losing the tip of one of his fingers.
The plaintiff completed his School Certificate in 1986 and left school the following year. He commenced an apprenticeship as a roof plumber, but did not complete it.
The plaintiff had a difficult childhood. He had been left by his parents with some relatives while his parents travelled to Italy and was sexually abused by a relative during the time they were away. Upon his parents' return to Australia, he met for the first time an older brother who returned with them. They formed an abusive relationship in which the plaintiff was threatened and intimidated by his older brother for most of his childhood. He ceased contact with that brother at age 18. The plaintiff's father died in 1992 when he was in his early 20's. In 1997, his mother died when he was 27 years of age. He had been very close to his mother and he described her as "a very loving kind of woman. She was very religious. She was very forgiving and she supported me in every way that a good mother would support her son."
The plaintiff described being emotionally devastated by his mother's death. It caused him to fall into a very severe depression which he subsequently struggled with ever since. He remained in the family home for two years following his mother's death, following which, he was confronted by his older brother who threatened him. The family home was sold and he received a portion of his parents' estate. With that money he started looking for a property and eventually found one at Bocoble, near Mudgee, where he has lived from 2001 until the present time.
Up until 1997, the plaintiff had sporadic employment in the building construction industry as a trade's assistant or labourer. He partially completed a carpentry apprenticeship. Up until that time, he worked full-time from time to time and at times he worked a six day week. However, he gave evidence that he was only employed six months of the year. He described having difficulties with depression and at times anxiety, up until the time of his mother's death and thereafter he found it extremely difficult to work full time. He sought help from counsellors and a psychiatrist and was prescribed medication. From the year 2000, he came under the care of Mr Greg Anning, a counsellor. Dr Hawkins, psychiatrist, treated him from 2008 in Mudgee. He was prescribed Zoloft which helped improve his mood.
After he moved to Mudgee, the plaintiff was able to find occasional part‑time work at a tourist attraction known as Honey Haven in 2005 or 2006. He did general maintenance work, three days a week. He then worked as a sales assistant at a business in Mudgee known as Express Hobbies, working two days per week, for eight hours per day. The plaintiff worked there for about six months in 2010. That employment was arranged through an employment provider and was subsidised.
The plaintiff entered a similar arrangement with Mr Justin Penny, a builder, in late 2011. He worked for Mr Penny for approximately six months before his accident. He worked generally two days per week, eight hours per day; however, the work was flexible. He worked as a trade's assistant doing builder's labouring, cleaning up job sites. He also did delivery of materials, and towards the end of his employment, started to use tools such as electric saws, nail guns, powered equipment and the like. The plaintiff gave evidence that he felt good about that change in his work duties as he felt he had turned a corner and that further down the track he could renew his carpentry apprenticeship.
The plaintiff gave evidence that he hoped to do more work and that whilst he was earning $160.00 for two days work with Mr Penny, he believed he was about to progress to three days per week.
Since the accident, the plaintiff has not been able to return to work.
In the accident on 19 March 2012, the plaintiff suffered a fractured left femur, fractured left wrist, an injury to the left knee and a severe head injury involving severe traumatic brain injury. He was taken to Mudgee Hospital and then airlifted to Westmead Hospital where he was admitted to the Intensive Care Unit. A CT trauma study revealed a tiny linear avulsion fracture related to the posterior aspect of the right C5/6 facet joint measuring approximately 2 mm in length, a T4 vertebral fracture, L1 and L2 left traverse process fractures, a manubrial fracture and an undisplaced anterior cortex sternal body fracture, and multiple left rib fractures. The study also revealed a left pneumothorax, together with compound comminuted fractures of the left distal femur and tibial plateau and a mildly displaced fracture of the inferior aspect of the left patella. The plaintiff underwent an urgent laparotomy and splenectomy, together with debridement and lavage of the left knee.
On the following day, the plaintiff underwent an open reduction and internal fixation of his left femur and percutaneous fixation of the tibial plateau. He was discharged from the Intensive Care Unit to the Brain Injury Unit where he remained until 24 March 2012.
The plaintiff remained in hospital and on 29 March 2012, underwent a CT brain angiogram which revealed a right internal carotid dissection extra cranially with new ischemic changes in the right cerebral hemisphere involving frontal and parietal lobes with sub-acute infarct. On the same day, a radiological study of his left wrist revealed minimally displaced fractures of the radial and ulnar styloid processes. He underwent numerous other studies of his head, neck and chest and on 11 April 2012, was admitted to the Brain Injury Unit at Westmead Hospital. On 12 April 2012 he emerged from post-traumatic amnesia after 23 days, which was consistent with an extremely severe traumatic brain injury.
On 27 April 2012, the plaintiff was admitted to Lourdes Hospital in Dubbo for rehabilitation and on 10 May 2012, he was discharged from Lourdes Hospital to Mudgee Hospital for further rehabilitation.
On 14 May 2012, the plaintiff was accepted as an interim participant in the Lifetime Care and Support Scheme pursuant to the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW). He was discharged from that Scheme in May 2014.
On 24 July 2012, the plaintiff was referred back to Lourdes Hospital where he participated in a four week rehabilitation scheme. He was eventually mobilised independently using Canadian crutches, but had to wear a left leg brace. The plaintiff suffered several minor falls at home and in July 2013 was admitted to Dubbo Hospital following an incident where the left femoral plate broke. His left femoral fracture was reconstructed and he was hospitalised for approximately two weeks.
The plaintiff gave evidence that he had suffered a stroke from the accident. This was confirmed by a CT brain angiogram which revealed a right internal carotid dissection with ischemic changes in the cerebral hemisphere. It affected of the left side of his body. He gave the following evidence:
"A: Well, I'd essentially lost all, all the sensation on the left side of my body, most noticeably my hand. I couldn't feel my hand at all, I couldn't, if I touched something, I couldn't feel what I was touching. I'd lost all of the dexterity and fine motor movement in my left hand so controlling or coordinating anything that required fine manipulation was virtually impossible."
The plaintiff described the following effect of his injuries on his ability to look after himself:
"Well, doing chores round the house now are extremely difficult. Things that take physical effort, I, I tend to avoid because it puts me in a lot of pain and discomfort so I just won't do it. I, organising anything is difficult, putting anything in sort of a proper order is difficult so my, as a result, you know, my house is fairly untidy and messy and generally before, you know, like, I was able to keep things somewhat organised, but now it, things are just kind of a shambles and I've no assistance or help with that, so it's something that I just feel like it's out of my control."
When asked what assistance he needed at home, the plaintiff gave the following evidence:
"Well, someone who could help with just some general cleaning because, you know, getting down on the floor is next to impossible because of my knew - it only bends to 90 degrees. I can't get down on the ground. So sweeping, cleaning up the floor, cutting the grass, you know, looking after your yard is just something I can't do any more, general, you know, duties like repairing a fence or something like that - it's not something I can do. And cutting the firewood - I, I buy the firewood and I only cut firewood if I can't afford to buy. It's the only reason that I cut it."
The plaintiff used a cane for support whilst mobilising because his left leg would not support his weight fully.
The plaintiff gave evidence that he had hoped to eventually return to full time employment at some time in the future, but for the accident. He would have worked to the normal retirement age of 65.
The plaintiff had some physiotherapy treatment which was of benefit to him, but it was no longer funded and he could not afford it. He also gave evidence that if recommended, he would undergo a left knee replacement.
In cross-examination the plaintiff agreed that prior to the injury in March 2012, he had applied for and been granted a disability support pension in approximately 2008. He continued to receive that pension whilst working at the hobby shop and for Penny Constructions. He also continued to receive the pension following the accident and was presently paid $800.00 per fortnight.
The plaintiff also conceded that he had been employed by a business known as Summertime Chickens in 2001, but between April 2001 and June 2005, he had been unemployed. Prior to his disability pension, he received a Newstart Allowance.
The plaintiff agreed that the work he commenced in 2010 was arranged under a wage subsidy scheme whereby the Government reimbursed to the employer his wages. That applied to his work at the hobby shop for a period of six months. It also applied to his job with Penny Constructions. He agreed that he had only ever worked for two days per week in that job.
The plaintiff gave evidence that he could not return to sales work because his brain injury would affect him too much. Nor could he do work riding on a lawnmower because it would put too much stress on his left leg. The plaintiff also conceded that he had, since the accident, acquired another motorcycle which was larger than the one he was riding at the time of the accident.
The plaintiff agreed that following his mother's death he had been treated with either Zoloft or Avanza for depression. He also gave evidence that he had had an involuntary admission to Bloomfield Hospital in 2004. He described that period as the worst time of his life as his depression had got worse and he was also suffering pain in his lower back. He was discharged to the care of the Mental Health team and had periodic treatment from them. The plaintiff conceded, as a result of those problems, he had difficulties looking after both himself and his home over the years leading up to the accident in 2012.
The plaintiff also conceded that he had at one stage been a chronic user of cannabis, but that he had not used that drug since 2010.
It was put to the plaintiff in cross-examination that, given his work history, it would be unlikely that he would be working more than two days a week after the accident, had it not happened, with which he disagreed. He did agree that he would have needed the subsidised wage system to be available to him for him to obtain any regular employment in the short to medium term, but not in the long term. He agreed that it would be a possibility that there would be lengthy periods of time when he would be out of work had the accident not happened.
The plaintiff disagreed with the proposition that, as far as his ability to look after himself and care for himself on the property was concerned, that overall he was really back to something similar to the way he was before the accident.
In re-examination, the plaintiff gave evidence that he had told medical practitioners, who had examined him for the purpose of the proceedings, that he was in receipt of a disability pension. Further, he had no time off for any back condition whilst he was working for Penny Constructions.
Mr Justin Penny gave evidence via telephone link. The plaintiff was one of three employees who had been employed pursuant to a Disability Scheme. He gave evidence that the plaintiff was employed two days a week, but they were flexible. The job was labouring, however, he described the plaintiff as also "doing a bit of trade assistant stuff with a little bit of work on the tools". He saw no sign of physical restriction on the part of the plaintiff with regard to performing his work, nor did he complain about any physical restriction. He described his attitude towards work as follows:
"A: He was a very pleasant guy to have around and, as I said, he's the, the one that we had with us for the longest up until he had the bike accident and because he was a good guy to have around, he was cooperative, he listened, he could take, you know, a set of instructions without having to come back and asking. He was just a good guy to have around in general, so."
Q: Had he not had this accident, would you have kept him on?
A: Yep, absolutely. … And, you know he was, he was missed and I would have kept him on. He was just, as I said, a good guy to have around, more than capable at his job. Just a, a pleasant guy and yeah, I would have kept him on for sure.
Q: Have you had work that would have been available for him since the time of his accident?
…
A: Yeah, absolutely. Yeah, well, I mean, we've got - you know, I employ casual labour as - on a pretty regular basis. And so - and no doubt, like I have to find someone else to fill the role that Steve was going for me. And, you know, even if it was quiet week, I'd always find something for him to do because he was keen to work."
Mr Penny gave evidence that the plaintiff's salary was paid by the Disability Support Group, however, a labourer's rate was $19.00 an hour.
Mr Penny was cross-examined about the Disability Subsidy Scheme for employers. He agreed that the plaintiff was employed from 6 October 2011, and he worked consistently 16 hours a week. He understood that the plaintiff suffered from depression and at times that was evident, but he gave evidence that as he progressed through his employment, he observed a significant improvement in the plaintiff.
[24]
The medical evidence
As a result of the agreement between the parties as to the award of damages for non-economic loss, it is unnecessary to analyse the whole of the medical evidence relied on by each party, save for that evidence that is relevant to the awards of damages for loss of earning capacity, paid commercial assistance in the future, and future treatment.
The thrust of the plaintiff's medical evidence is to the effect that the plaintiff is permanently unfit for his pre-injury employment as a labourer working two days per week. Associate Professor Jones provided a number of reports on behalf of the plaintiff. In the first of those reports, he opined that the plaintiff would never be capable of returning to the building industry, but may be able in time to return to work, given his specific interest, in the hobby shop. Associate Professor Jones later amended that opinion and said that he would remain unemployed and on a Disability Support Pension.
Associate Professor Jones was required for cross-examination, and during that cross-examination, the plaintiff's work history prior to the accident was put to him. He agreed that the plaintiff had told him that he was in reasonably regular employment in a variety of jobs. He had told him that he had been out of work from time to time, but not for years at a time.
Associate Professor Jones gave evidence that having reviewed his progress because of multiple injuries and brain impairment and degenerative disease, he felt it was most likely that the plaintiff would be unable to return to work. He did, however, agree that, from a physical perspective, a knee replacement may give him a better chance of being able to return to work as a sales assistant.
Associate Professor Jones agreed that the plaintiff's condition had improved up until October 2015, when he last examined him. That improvement was described as cognitive improvement and improvement with the femoral fracture. He still had substantial limitation in movement of the left knee.
[25]
The defendant's medical evidence
Dr P J Spira, consultant neurologist, in a report dated 6 November 2014, stated that the plaintiff's "accentuated depression and residual symptoms preclude his working physical demanding tasks of the level he performed prior to the accident". Dr Spira went on to opine that the plaintiff had physical capacity to work part time in a sedentary occupation.
Dr Sydney Smith, psychiatrist, was of the opinion that the plaintiff aggravated his long-standing major depressive disorder. Dr Smith described the plaintiff's major problems as being with working memory, information processing and mental flexibility, indicating problems with frontal lobe functioning. Notwithstanding that, he described the plaintiff's problems as having been "relatively minor".
Dr Seamus Dalton, in a report dated 6 February 2015, recommended heel raise for the plaintiff's left shoe and a self-directed home exercise program. Dr Dalton was of the opinion that the only ongoing treatment required by the plaintiff was management of his depression and psychological support. Dr Dalton stated that the plaintiff was independent in all aspects of personal care and could manage normal activities of daily living without assistance. He was able to chop firewood in a "limited capacity" and purchased firewood whenever he could afford it. There was therefore no ongoing requirement for domestic assistance or attendant care, consistent with the findings of the Lifetime Care and Support Scheme.
Finally, Dr Dalton was of the opinion that the plaintiff had a reduced capacity for work due to his "pre-morbid depression and personality disorder". As to his work capacity, Dr Dalton said:
"Unfortunately this man's ability to find suitable employment, even on a part‑time basis, is limited not only by his pre-morbid depression and psychological difficulties, but also by his lack of transferrable skills, limited employment history and physical restrictions arising from the subject accident which would prevent him from resuming his pre-injury employment as a labourer. Mr Calcagno is only fit to work in a light manual capacity and would be limited to semi-sedentary or sedentary work. I suspect that because of this difficulty, initiation and lack of motivation, he would need to work in an environment where he is supervised and he would certainly require some assistance with job seeking. … His prospects of finding part-time employment are poor, particularly given that he needed assistance to find part‑time employment six months prior to the subject MVA. He would require assistance from a Disability Support Service to find part-time employment. From a physical point of view, he is capable of working part-time in a light manual capacity and were it not for his cognitive and psychological difficulties, then Mr Calcagno would have a greater chance of finding employment on the open labour market."
Dr Dalton went on to attribute the plaintiff's physical disabilities involving his left leg and left upper limb, as being wholly attributable to the subject motor vehicle accident. He was of the opinion that his psychological difficulties are to a large extent attributable to the pre-morbid depression and personality disorder, but appear to have been compounded by worsening of his depression following the subject motor vehicle accident. He went on to state:
"He also appears to have mild residual cognitive impairments attributable to his traumatic brain injury and cerebrovascular accident."
[26]
Assessment of Damages
The first head of damages relates to the plaintiff's wage loss from the date of accident to the date of judgment, that is from 19 March 2012, to 18 December 2015, a period of 3.75 years. The plaintiff claims his net weekly earnings at the time of accident of $296.00 for the whole period, whereas, the defendant submitted his claim should be heavily discounted, relying on the plaintiff's work history for a period of over 10 years prior to the accident, in which he was unemployed for a substantial period of time, worked no more than six months in any one year and was, from 2009, in receipt of a Disability Support Pension. Importantly, the plaintiff's employment with Mr Penny, subsidised as it was, was due to come to an end within weeks of the motor vehicle accident. I was, however, impressed with Mr Penny's evidence as to the plaintiff's approach to work and I accept that he was valued as an employee and, if the circumstances permitted, would have been offered ongoing work by Mr Penny. However, some allowance has to be made for the fact that it was part-time, casual employment, and the plaintiff would have continued to receive his Disability Support Pension.
I accept the defendant's submission that the calculation is incapable of arithmetic precision. Given those factors, I assess the plaintiff's past wage loss at $35,000.00, including any superannuation entitlement.
For the future, the same considerations apply. I accept the plaintiff's medical evidence, particular that of Associate Professor Jones, that he is now totally unemployable and will in all likelihood never work again. I do not, however, accept that he would have increased his work from two days per week to three and a half days per week to age 65, but rather, he would have continued to work from time to time in part-time, casual employment. Pursuant to s 126(1) of the MACA, the most likely future circumstances of the plaintiff, but for his injury, were that he would remain on Disability benefits and principally depend on them. I accept the defendant's submission that he would be unlikely to remain in regular employment, but I find that he had the opportunity, in working for Mr Penny, to increase his skills, with the result that he may also have increased his prospects of obtaining and retaining employment as well as earning higher wages from time to time. However, given the impact of his long-standing depressive disorder and poor work record, his diminished earning capacity into the future is incapable of arithmetic calculation. I am satisfied that the severe injuries, both physical and his brain injury, suffered in this accident, have resulted in a diminution of his earning capacity which is or may be productive of financial loss - see Medlin v State Government Insurance Commission (1995) 182 CLR 1.
Any lump sum must represent a period of some 20 years for the plaintiff's potential working life. I therefore award the sum of $100,000.00 as a buffer, together with loss of future superannuation benefits of $13,560.00.
I accept the plaintiff's evidence that he requires assistance with the heavy duties for which he has relied on neighbours to provide in the past. The need for such assistance has been established. I do not accept Dr Dalton's opinion set out above, that he has no need for such assistance "consistent with the findings of the Lifetime Care and Support Scheme". Given the severity of his injuries, there is no basis for such a finding. The evidence has established that the plaintiff requires assistance with heavy household and domestic chores and there is no one available to him to provide those services gratuitously - see Miller v Galderisi [2009] NSWCA 353 at [18]. I therefore allow four hours per week of paid care at $44.00 per hour for a period of 40 years. Using the 5 per cent multiplier of 921.2, the plaintiff is to be awarded the sum of $162,130.00 for future paid care.
For future treatment expenses, the plaintiff has claimed $60,000.00 and the defendant allowed $10,000.00. The plaintiff will require review by his general practitioner on a quarterly basis and specialist attention, both neurological and orthopaedic. I accept his evidence that he would have ongoing physiotherapy and, if advised, he would undergo a knee replacement. I accept the plaintiff's submission that any award of damages for that procedure should be deferred for 10 years. He would also require psychiatric review for the next five years for any aggravation of his psychological condition caused by his injuries. There is no evidence that he will require ongoing medications into the future beyond what he was taking for his depression prior to the accident. For all of his future treatment therefore, I award the sum of $55,000.00.
[27]
Summary of damages
I therefore assess the plaintiff's damages as follows:
Non-economic loss, as agreed $300,000.00
Past treatment expenses, as agreed $7,011.00
Future treatment expenses $55,000.00
Past wage loss $35,000.00
Future economic loss $100,000.00
Future loss of superannuation benefits $13,560.00
Future paid care $162,130.00
Total $672,701.00
[28]
From the above amount there will have to be deducted 25 per cent representing the plaintiff's contributory negligence. The total award will therefore be $504,525.00.
[29]
Orders
I make the following orders:
1. Verdict and Judgment for the plaintiff against the defendant in the sum of $504,525.00.
2. The defendant is to pay the plaintiff's costs of the proceedings.
3. The exhibits are to be returned forthwith.
4. The parties have liberty to apply on seven days' notice in respect of any special costs order.
[30]
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: 18 December 2015