Stock v Johnston

Judgment 1HIS HONOUR: The plaintiff, Julianne Rochelle Stock, brings an action for damages for personal injury sustained by her on Sunday 26 October 2008. The plaintiff's cause of action is in the tort of negligence. Aspects of the plaintiff's claim are governed by the Motor Accidents Compensation Act 1999 and also by the Civil Liability Act 2002. 2The plaintiff was attempting to cross Hill Street in East Ballina from west to east when she collided with a motor vehicle being driven by the defendant, Ms Kylie Ann Johnston. 3The main street of Ballina is known as River Street. At its eastern end, that is after it passes the Ballina Court House and police station, past the swimming pool and waterslide, it continues on under the name of Kingsford Smith Drive. It then comes to a roundabout where it intersects with Bentinck Street. The third of the three roads entering the roundabout is the road which crosses North Creek, an inlet of the Richmond River. The road is carried by Missingham Bridge. As the road continues beyond the bridge, it becomes known as Hill Street, which eventually runs into Pine Street and Pine Street carries on north-eastwards and becomes the main coastal road linking Ballina with Lennox Head and then Suffolk Park and then Byron Bay. The major direction of both Hill Street and its continuation, Pine Avenue, can be seen as being from south-west to north-east. It can be conveniently described as being from south to north. 4The road geometry and road layout are set out extensively in the report of Mr William Keramidas, an expert in traffic and transport engineering, which report is dated 10 November 2011. That description is this: "Hill Street at East Ballina can be described as a secondary road which has a general north/south orientation. The roadway is of paved construction and on approach to the incident location the roadway travels north over Missingham Bridge and comprises of two traffic lanes. To the north of the Missingham Bridge there is a sweeping left-hand horizontal bend on approach to the Park Street intersection, with the curve radius of the bend being approximately 200 metres. On the departure [northern] side of that bend the roadway exhibits a short straight which continues just north of the Park Street intersection. At the northern end of the straight the roadway exhibits a right-hand horizontal bend of approximately 190 metres radius, running through and beyond the incident location to the Compton Drive intersection. The incident location can therefore be said to be at the commencement of a right-hand horizontal bend applicable to northbound traffic. With respect to the vertical profile of the roadway, commencing from Missingham Bridge the roadway exhibits a gentle downhill grade from the elevated bridge section down to the normal surface level, and continues in a relatively flat and level profile until just after the Park Street intersection. On the departure side of that intersection the road exhibits an increasing uphill grade to about 8%, which is formed through a sag vertical curve leading up the 'hill' towards Compton Drive. In the immediate vicinity of the incident location therefore, the roadway exhibits an uphill grade of about 7.5% ... With respect to the cross-sectional aspect of Hill Street in the vicinity of the incident location, it was noted that the roadway exhibited a normal 'crown' with a crossfall towards the formed kerb and channel on both the eastern and western sides of the roadway. There was nothing unusual about the cross-sectional layout, with a relatively smooth transition from the straights to the bends. In addition, in the immediate area of the incident location the natural surface of the eastern side falls away quite dramatically down a grass embankment to a lower level where the carpark to the Shaws Bay Hotel and shopping strip exists ... In terms of the road layout, once again commencing from the Missingham Bridge there is provision for a single lane of traffic in each direction, separated by means of double white barrier lines. There is also a slip lane for northbound traffic to turn left into the roadway known as The Serpentine. Hill Street then continues through the left-hand horizontal bend as a single northbound traffic lane, as well as a single southbound traffic lane within the confines of the carriageway. On the northern side of that bend and on approach to the Park Street intersection the northbound portion of the carriageway widens to incorporate an auxiliary lane, therefore in the process creating two traffic lanes on approach to the incident location. In the vicinity of the Park Street intersection the two traffic lanes measured about 3.2 metres each and were separated by short broken continuation lines, indicating that the auxiliary lane was not a full traffic lane but rather was used to manoeuvre around turning vehicles and allow vehicles turning into Hill Street from Park Street to accelerate up to travelling speed. Approximately 20 metres north of the centre of the Park Street intersection the double white barrier lines separating north and southbound traffic flows changed to a painted median, which flared out over the next 20 metres to approximately 1.7 metres in width. During the introduction of this painted centre median the auxiliary traffic lane nearest the western kerb-line reduced in width as the painted median increased in width. Approximately 40 metres north of the centre of Park Street the author noted the installation of a raised concrete pedestrian refuge island, which extended over a distance of approximately 11 metres and at its widest was approximately 2.5 metres. At the northern end of this island there was a gap of approximately 2.85 metres before the raised concrete centre median resumed and extended, progressively narrowing through to the Compton Drive intersection. In line with the recommencement of the centre median, painted markings on the road surface [short broken white lines] provided for the introduction of an exclusive right-turn lane, essentially cut into the median. At the same time the auxiliary lane introduced for the Park Street intersection continued its progressive taper to a close, eventually terminating approximately 27 metres north of the gap in the centre median. By virtue of the painted markings on the road surface, the roadway at this location exhibited a right-hand horizontal bend with approximately 190 metres radius. Associated with the pedestrian refuge cut into the raised concrete median there was a concrete pedestrian footpath on both the eastern and western sides of the roadway. On the eastern side of the roadway the path followed the general line of the roadway, with a ramp providing access to the road surface. On the western side of Hill Street the footpath commenced from a point opposite the gap in the centre median and extended in a northerly direction towards a series of steps, which permitted pedestrian access to various residential streets to the north-west including Pine Avenue. To the south of the pedestrian refuge there was no formal footpath, with a concrete path recommencing about 10 metres from Park Street and extending south beyond that intersection. The pedestrian footpath leading up to the steps exhibited a grade in excess of 10% and was of reasonable quality. The road surface in the immediate area of the incident location could be described as being in a 'good' state of repair, with no pavement defects noted." 5The next section of Mr Keramidas' report comments on street lighting and then on night time visibility. Those questions are also canvassed by the plaintiff's expert, Mr Grant Johnston, but there is no issue that lighting has anything to do with the issues in the current proceedings. 6The plaintiff, immediately prior to the collision, had traversed the footpath on the western side of Hill Street coming from the foot of the stairs that led to the southern end of Pine Avenue. She then walked down that footpath to the ramp opposite the centre of the pedestrian refuge and she had the intention of crossing Hill Street from that ramp to the middle of the pedestrian refuge and then onto the other side to pick up the footpath on the eastern side, which she intended to follow southwards towards the Missingham Bridge. 7I should indicate that as a vehicle proceeds north along Hill Street, immediately after crossing the bridge, there is a road to the left known as The Serpentine and then further there is a road to the left known as Park Street. Almost opposite the entrance to Park Street but slightly to the north of the centre of Park Street is a road that turns off to the right, as one drives north along Hill Street. That road is known as Brighton Street and gives access to the Shaws Bay Caravan Park and the Shaws Bay Hotel and the shop nearby and some residences adjoining the hotel. 8On the evening of Saturday 25 October 2008, the plaintiff attended a wedding. The wedding ceremony was held at what the plaintiff described as "The Lookout" at Ballina at 3pm. That was followed by a reception at the Seagulls Rugby League Club in Bentinck Street, Ballina. That club adjoins Kingsford Smith Park, which forms, as it were, a wedge between Bentinck Street and Kingsford Smith Drive. The reception commenced at 4.30pm. The reception finished at 11.30pm. However, the bridal party and guests wished to continue their celebrations. The party moved to have an "after party" at the Skate Park near the Missingham Bridge. The Skate Park is on the south-eastern side of the Missingham Bridge and slightly to the east of the roundabout to which I have earlier referred. 9The plaintiff left the after party at the Skate Park at approximately 2am. She walked over the Missingham Bridge on its eastern side and continued on the eastern pathway until the footpath reached the eastern side of the pedestrian refuge, which I have earlier described. She then crossed Hill Street from east to west and proceeded up the footpath to the steps at the foot of the southern end of Pine Avenue. The plaintiff was, at the time, residing in a residential flat or apartment in Pine Avenue. Having reached the foot of the stairs, the plaintiff declined to mount them. She had a problem with one of her knees and thought that it would aggravate her condition if she mounted the stairs. She accordingly turned around, having decided to return to the Skate Park, to which a taxi had been earlier summoned for her, but which taxi had not arrived at the time that she left the Skate Park at approximately 2am. The plaintiff walked down the western footpath of Hill Street and reached the end of it in the ramp in the kerb directly opposite the middle of the pedestrian refuge. The plaintiff then stopped. She told me that she stopped to look for traffic. She told me that she looked to her right, which means that she looked to traffic approaching her from the south, that is, looked in the direction of northbound traffic. According to the plaintiff, she saw nothing. She then turned to her left and saw a car coming from the north in a southerly direction but it appeared to be some distance away. The plaintiff then started to cross to the pedestrian refuge in the middle of Hill Street. She told me that she did not remember how many steps she took but it was probably two steps. That was her evidenceinchief and was confirmed in cross-examination. She then collided with the vehicle being driven by the defendant. 10The plaintiff has no memory of the impact with the defendant's motor vehicle. She can remember the "sound of air coming out of me". Her next memory is of "coming to" on the road surface of Hill Street with ambulance officers attending to her and then of her being conveyed to the Lismore Base Hospital. She told me that she was "in agony". She was experiencing pain in the right side of her body, in her head and her neck and her back and her arm. 11The plaintiff was born on 30 June 1974. At the time of this accident she was thirty-four years old. The plaintiff was examined on 27 June 2012 by Dr Chris Oates, a consultant occupational physician, at the request of the defendant. Dr Oates records that the plaintiff was of average build, a height of 162 centimetres and a weight of 63 kilograms. The notes of the Lismore Base Hospital indicate that in April 2009 the plaintiff weighed 65 kilograms. Accordingly, one can see the plaintiff as being about 162 centimetres in height and 65 kilograms in weight. 12The defendant, Kylie Ann Johnston, was born on 29 November 1987 and at the time of this collision was aged twenty years. She had a P2 provisional licence and, according to the COPS entry, had been driving for four years and eleven months at the time of the collision. At the time of the collision the defendant was pregnant to her then boyfriend, Mr Joshua Robert Bruen. The defendant was, like the plaintiff, a resident of Pine Avenue, East Ballina at the time of this collision. However, there is no suggestion that the plaintiff and the defendant were known to each other. The police records indicate that the plaintiff lived at 4/6 Pine Avenue and the defendant lived at 5/79 Pine Avenue. 13Like the plaintiff, the defendant had been out socialising on the evening of Saturday 25 October 2008. She and her then partner, Mr Bruen and friends attended a barbecue at Alstonville. She arrived there some time between 4 and 5pm and left at approximately 10pm. The party then drove back to Ballina, where they attended the Ballina RSL Club for a short time and then visited the Ballina Hotel, which was and still is almost opposite the Ballina RSL but which hotel has now closed down. Part of the Ballina Hotel was known as the "Beach Hut". I assume it was some sort of bar or function centre. According to the defendant, she left the "Beach Hut" about 1.30pm and then drove her two friends to their residence in West Ballina, "behind the Big Prawn", and then she proceeded to drive home with Mr Bruen as the front seat passenger. At the time, the defendant and Mr Bruen were cohabiting. 14The defendant told me that she crossed Missingham Bridge, driving at approximately 50 kilometres per hour. She then told me that she went along Hill Street, travelling past Park Street at 50 kilometres per hour. She was burning the headlights of her vehicle. There is no suggestion that there was any defect in the defendant's vehicle or that it had previously suffered any damage. The police records describe the plaintiff's vehicle as a Ford Festiva sedan, made in 1992 and coloured red. 15Annexed to the primary report of the plaintiff's expert is a document headed "Identicar Report", which gives me some details of the Ford Festiva vehicles manufactured between 1991 and 1994. The vehicle is a "hatch". The overall length of the vehicle is 3.615 metres. Its height is 1.460 metres and its width is 1.605 metres. Counsel approached the width of the defendant's vehicle as being 1.6 metres and I shall also do so. 16As the defendant was driving on Hill Street, she saw the plaintiff. Her evidence suggests but was not conclusive that she saw the plaintiff when she was at the intersection of Hill Street and Park Street. The "collision diagram" prepared by Mr Keramidas shows the approximate location of where the plaintiff was when she was first observed by the defendant. That diagram shows the plaintiff as being on the footpath on the western side of Hill Street under the branches of a nearby tree. That appears to have been based on intelligence communicated by the defendant to Mr Keramidas. It appears also to be accepted by Mr Johnston, who when commenting on the "collision diagram" mentions in [6.5] of his primary report that the "pedestrian was first seen around 30 metres from the western kerb where she stopped prior to entering the roadway." 17According to Mr Keramidas' report, the defendant could have detected the presence of the plaintiff somewhere in the order of one hundred metres or so from what was to become the site of the impact. That information is contained in the penultimate paragraph on p 19 of Mr Keramidas' primary report. That would put the sighting by the defendant of the plaintiff well south of the intersection of Park Street and Hill Street. Mr Keramidas points out that, in addition to what the defendant told him, what the defendant told him was consistent with what the defendant told the police on the day of the collision. 18The defendant told me that she kept the plaintiff under her observation. She said that when she perceived the presence of the plaintiff on the footpath she slowed down. When asked why, she pointed out that the plaintiff was, "not walking straight but walking quite fast." Those are my contemporaneous notes. 19In cross-examination, the word "stumble" was used but it became clear that what the defendant perceived was the plaintiff's zigzagging as she was walking down the footpath. The defendant made it clear that she perceived that the plaintiff was behaving erratically. She slowed her vehicle down, she told me, to 40 kph. She said that she saw the plaintiff walk to the "edge of the footpath", by which I infer she meant the ramp where the plaintiff had come to a stop, the ramp in the kerb. I should indicate that Mr Johnston in his report refers to the ramp as a "pedestrian invert" but I much prefer the terminology "ramp". 20The defendant said that she saw the plaintiff "turn and looked at" her - the plaintiff used the first-person pronoun, "me". That can only mean that the defendant perceived that the plaintiff was looking in her direction; that is, in the direction of her car. At the time that the plaintiff did that the defendant confirmed that she was standing on the ramp. The defendant went on to say that the plaintiff made "eye contact with me", but again I can only infer that that means that the defendant perceived that the plaintiff looked in her direction. The defendant, seeing the plaintiff look in her direction and seeing that the plaintiff was stationary, thought that the plaintiff would stay stationary on the ramp and permit the defendant to drive past her in the motor vehicle. The defendant maintained her speed, 40 kilometres per hour, and maintained her direction. She did not take any action such as the flashing of her headlights, the sounding of her horn, the changing of her direction by driving to the right-hand side of the lane in which she was travelling, or reducing her speed further. 21The defendant said that she saw the plaintiff take two rather large steps out towards her car, quickly and that she then brought her vehicle to a stop. The defendant says that she braked her vehicle as the plaintiff started to take the steps from the ramp onto the carriageway. She said that the plaintiff collided with the front passenger side panel of her vehicle and with the windscreen of her motorcar. 22Exhibit 4 is a photograph of the windscreen of the defendant's motor vehicle. It shows that the windscreen has shattered after being struck on the bottom of the windscreen in the section of the windscreen on the passenger side. The pattern of the shattering of the windscreen is of a quartercircle type of spider-web indicating to me, as a layman, that, whatever part it was of the plaintiff that collided with the windscreen, that part of her body struck the bottom passenger side of the windscreen on the left-hand bottom edge of the vehicle. 23Exhibit 5 is another picture of the car taken after the windscreen had been replaced on Monday 27 October 2008. That clearly shows damage to the front left-hand side of the vehicle. It is somewhat hard to determine whether that damage is over the front passenger tyre arch or slightly behind the front passenger side tyre arch. The notes made by Mr Keramidas indicate that he perceived that the damage, from the description of it given to him, was behind the front tyre arch, but doing the best I can by my observation of exhibit 5, I believe the correct finding to be, the damage is over the centre of the front passenger tyre arch. That indicates to me the first point of impact of the plaintiff's body with the vehicle being driven by the defendant. 24The point of impact on the roadway cannot now be ascertained with any exactitude at all. The police believed that the point of impact was some two metres east of the western kerb of Hill Street. Mr Keramidas estimated that the probable point of impact was 2.9 metres east of the western kerb of Hill Street. Mr Johnston believed that the point of impact was 3 metres east of the western kerb of Hill Street. There is no substantial difference in my view between 2.9 metres and 3 metres. From [5.7] of Mr Johnston's primary report, I know that the width of the auxiliary lane at the place where the plaintiff attempted to cross it was 2.2 metres. I know from that same place that the northbound lane was 3.2 metres in width. Accordingly, the total width of the carriageway between the ramp and the edge of the pedestrian island for northbound traffic was 5.4 metres. 25The defendant provided an accident report to the compulsory third party insurer. In that report she made a diagram that shows the pedestrian refuge in the middle of Hill Street, the footpath and ramp on the western side, a stickfigure indicating the plaintiff, and the defendant's vehicle in the middle of the carriageway roughly between the kerb and the pedestrian refuge. In the middle of that carriageway the defendant drew a dotted line. Learned counsel for the plaintiff suggested to the defendant that, by that dotted line, she was indicating the continuation line that separated the auxiliary lane from the primary through lane on the western side of the carriageway. The defendant would not accede to that proposition. The defendant said that what she represented by the dotted line in the diagram was the middle of the lane in which she was travelling. I am prepared to accept the defendant in that regard. 26Accordingly, one can see that between the plaintiff, standing on the ramp and the defendant's vehicle, as it was passing by the ramp, was the width of the auxiliary lane, 2.2 metres, and then a further 0.8 metres, giving a total distance of 3 metres between the ramp on which the plaintiff was standing and the left-hand side of the defendant's vehicle. As I have earlier indicated the through lane, the primary lane, was 3.2 metres wide. The defendant's vehicle was 1.6 metres wide. If I take 1.6 metres from 3.2 metres, I obtain a remainder of 1.6 metres, and if I divide that evenly I obtain 0.8 metres, being the distance on each side of the defendant's vehicle, between the continuation line on the left-hand side and the pedestrian refuge on the right-hand side. 3 metres, of course, is the distance that Mr Johnston estimated to be the point of impact, which is so close to the 2.9 metres estimated by Mr Keramidas to be, as I said, of no moment. 27The surprising thing about the way this case was presented and argued is that so little time was spent addressing me on the material provided by the experts. For example, the first expert to report was Mr Keramidas. His report bears date 10 November 2011. The primary report is 26 pages long. There are also a further 21 pages, one comprising Mr Keramidas' handwritten notes and the further 20 pages comprising photographs, followed by a lengthy curriculum vitae. Mr Grant Johnston, qualified by the plaintiff, prepared a report of 12 June 2012. It contains both his own opinion as well as his comment on Mr Keramidas' report. His primary report is 38 pages long, followed by 16 pages of his curriculum vitae and then a further 2 pages of the appendix to which I have earlier referred. Mr Keramidas then provided a supplementary report dated 9 July 2012, which is 10 pages long and to which Mr Johnston made a reply in a further report that is 12 pages long. 28The thesis of Mr Johnston is that the defendant had sufficient time to bring her vehicle to a stop prior to colliding with the plaintiff. However, that thesis suffers from the defect that one does not know precisely for how long the plaintiff stood stationary on the ramp prior to executing her two quick steps. Having seen the defendant being cross-examined and bearing in mind her presentation in chief, I do not believe that there was sufficient time for the plaintiff to have brought her vehicle to a stop from the moment that she perceived the plaintiff to be moving off the ramp until she collided with the defendant's vehicle. 29Before going on I should make some findings of other contested facts. The estimate of speed given by the defendant in her evidence in-chief is consistent with the version that she gave to police in a formal statement dated 26 October 2008, the day of the accident, although it may well be that the statement was actually made on Monday 27 October 2008. 30However, in her report of the accident to her insurer the defendant said this: "I was driving up Hill Street towards home on a 60 kilometre per hour road, I saw a lady walking fast down a footpath to my left, so I slowed down to 50 kilometres/hour. She came to the end of the footpath, turned and saw the car so I kept going. As I was passing her she [leapt] out into the front side of the car. I stopped to assist the lady with my partner who was also in the car." There is a further sentence to that description which I do not presently need to quote. 31When the defendant was interviewed by Mr Keramidas on Wednesday 6 July 2011, she told Mr Keramidas that she approached the accident scene at "between 50 to 60 kilometres per hour" and then slowed down to "about 40 kilometres per hour." As might have been expected, the defendant was crossexamined about those inconsistencies. The defendant pointed out that the description in the report of injury form was made on 19 August 2009, nearly a year after the accident, and the description to Mr Keramidas was given getting on towards three years after the accident, and she maintained that the version that she gave to the police very shortly after the collision was the correct version. Having seen and heard Ms Johnston, I am prepared to accept her in that regard. However, for reasons to which I will in due course turn, little in my view hinges on the speed at which the plaintiff was travelling at the time. 32There is some "corroboration" for the position taken by the defendant as to her speed by her then partner, Mr Joshua Robert Bruen. He maintained that the defendant always drove beneath the speed limit, but then told me that the defendant slowed the vehicle to about "30 kilometres per hour", which is hardly consistent with what the defendant herself said. It is patently clear that Mr Bruen was under the influence of alcohol on the night of the 25th and the early hours of the morning of 26 October 2008. The defendant, his girlfriend/partner at the time, was four months' pregnant. She was not taking any alcohol. That is confirmed by the police, as breath analysis conducted by the police on the defendant gave a reading of 0.00. However, with a dedicated non-drinking driver, Mr Bruen was able to take alcohol both at the barbeque at Alstonville, at the Ballina RSL Club, and at the Beach Hut at the Ballina Hotel. The defendant herself said that her boyfriend Joshua was moderately affected by alcohol. The extent of his intoxication may be gleaned from the fact that as far as Mr Bruen could remember, on the evening in question he and the defendant had merely attended a barbeque at the residence of friends of the defendant at West Ballina. The defendant clearly had friends who resided at West Ballina but Mr Bruen could not remember the barbeque at Alstonville or the subsequent visitation of both the Ballina RSL Club and the Beach Hut at the Ballina Hotel. To an extent, it appears to me that Mr Bruen's evidence is largely the result of reconstruction as to what happened on the evening in question, perhaps based on what he gleaned from the defendant herself. 33However, I accept the evidence of Mr Bruen about the damage which he observed to the defendant's vehicle, damage which he sought to remedy by, for example, taking the car to obtain a new windscreen on Monday 27 August and then making other repairs, for example to a damaged windshield and side mirror on the left hand side of the vehicle. 34The real question as for my determination on the question of liability is what, if anything, ought the defendant to have done when she saw the plaintiff? 35Manley v Alexander [2005] HCA 79 was a case in which a man was run over and injured as he was lying down on the carriage way of Middleton Beach Road, Albany in Western Australia. The plaintiff in that case had drunk twelve stubbies of beer in the preceding 8 hours. He had no recollection of how it came to be that he was lying on the carriageway. He had set out to walk home at 4am with his housemate, a Mr Turner. The route that they adopted took them along Middleton Beach Road. The defendant said, in evidence that he gave at trial, that he was driving along Middleton Beach Road when he saw a man standing on the road who it was accepted was the plaintiff's flatmate, Mr Turner. The defendant saw Mr Turner "moving around a fair bit like he had been drinking". The defendant kept his eyes on that pedestrian on the side of the road. The defendant did not slow down his motor vehicle and maintained a speed of between 55 and 60 kph. He, however, started to veer his car towards the centre of the carriageway. When he looked back onto the roadway he saw something lying on the road. He thought to brake his vehicle but did not. He thought that he ought not and he then ran over "something". What he ran over was in fact the plaintiff. At first instance there was a verdict for the defendant. The full court of Supreme Court of Western Australia allowed an appeal, found for the plaintiff and reduced his damages by 70% to account for the plaintiff's contributory negligence. The defendant appealed to the High Court of Australia. 36In the judgment of Gummow, Kirby and Hayne JJ the following was stated commencing at [11]: "11. No doubt the appellant's attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may 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 4.00am is properly to be described as 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". 37Accordingly, it can be seen that the driver of a motor vehicle is required to drive giving reasonable attention to what is happening not only on the roadway but near the roadway that may present a source of danger. The duty of care of a driver of a vehicle is not limited only to those on the carriageway but also to those in the vicinity of the roadway, that is, those who may be on a footpath or verge or kerb and yet might enter onto the carriageway. 38Another case in questions is Evans v Lindsay [2006] NSWCA 354. That case was argued on 15 August 2006 and judgment was delivered on 11 December 2006. The next case to which I shall refer was argued on 17 October 2006 but judgment was also delivered on 11 December 2006. In both this case and the next one to which I shall refer, the primary judgment was given by Beazley JA. The facts of Evans v Lindsay can be gleaned from the head note. It is in these terms: "The respondent was walking along the middle of Kangaloon Road, Bowral, having earlier left the Bowral Hotel in an inebriated condition, when he was hit by a truck owned by the second appellant and driven by the first appellant and sustained severe brain injuries. The accident occurred in the early hours of 27 February 2000, in conditions that were dark and wet but illuminated by streetlights and the vehicle's low beam headlights. The first appellant had not previously driven along the road, which was in a built-up area, and had been driving within the speed limit of 60 kph. The trial judge found that the first appellant was negligent as he was driving too fast for the conditions and was not keeping a proper lookout, and that the respondent was 15 per cent contributorily negligent". 39The appeal was allowed and the extent of the finding of contributory negligence was increased from 15% to 75%. Commencing at [71], her Honour said this: "71. When a driver is confronted with a situation where there is a risk of injury there may be a range of steps that might be taken by way of a reasonable response. Should authority be needed for this proposition, it can be found in the majority judgment of the High Court in Anikin v Sierra [2004] HCA 64. See also Pledge v RTA [2004] HCA 13 at [32], where Callinan and Heydon JJ refer to the judgment of Dunford J at first instance. The possible range of responses has to be assessed, not in the reflective calm of a judge's chambers, but in the context of the dynamics that confront the driver that usually calls for quick decision making in circumstances of quite some stress. It will not always be negligent if a driver, in what is virtually split second decision making makes what, on later reflection, was the wrong decision. However it may be negligent if a driver was failing to keep a proper lookout so that she/he, in real terms, deprives her/himself of the ability to make decisions, other than the immediate reaction of 'slamming on the brakes'". 40Her Honour went on to hold that that was what happened in that case, as the driver of vehicle was not keeping a proper lookout and as his passenger perceived the pedestrian on the roadway earlier than the driver did. 41The other case decided on 11 December 2006 was Vale v Eggins [2006] NSWCA 348. Again, the facts from that case can be gleaned from the headnote: "The appellant sustained serious injuries after being struck on Anzac Parade, Chifley, by a motor vehicle driven by the respondent. The appellant had been 'stumbling' across the roadway in the direction of the lane in which the respondent was driving when, having appeared to have seen the respondent approaching, he turned and stumbled away from the respondent's line of travel. However seconds before impact the appellant, without warning, turned and 'quickly stumbled' back towards the lane in which the respondent was driving. Proceedings were brought by the appellant against the respondent and were dismissed in the District Court of New South Wales. The appellant appealed against that dismissal, on the ground that the trial judge erred in restricting her determination as to whether the respondent was negligent to the manner in which he drove in the last couple of seconds immediately before striking the appellant". 42As I mentioned earlier, the primary judgment was given by Beazley JA with whom McColl JA concurred. Bryson JA dissented. Again the headnote adequately sums up her Honour's reasoning. The relevant part is this: "(i) The trial judge based her conclusion on the respondent's decision in the seconds before impact, and thereby failed to deal with the essential case advanced on behalf of the appellant that the respondent, having sighted the appellant, should have slowed down so as to be able to avoid collision. (ii) The two-stage approach adopted by the trial judge was erroneous. The question to be determined was what was a reasonable response to the risk with which the respondent was confronted, namely, the presence of the appellant on the roadway. (iii) To meet the standard of care required, the driver of a vehicle must control the speed and direction of the vehicle in such a way that [he or she] may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events. It was incumbent upon the respondent when he first saw the appellant to take such reasonable steps as were necessary to react to the danger". 43The headnote goes on to comment upon ss 49 and 50 of the Civil Liability Act 2002 and then refers to the finding of contributory negligence. In that case the Court of Appeal held that the finding of 75% contributory negligence was within the proper discretionary range. 44In the current case the defendant distinguishes both Evans v Lindsay and Vale v Eggins on the basis that the danger presented in those cases was the presence of a pedestrian on the carriageway. However, it follows logically from what was said in the High Court of Australia in Manley v Alexander that a danger can also be presented by a person on the side of the carriageway, a person standing on a pedestrian ramp waiting to cross the carriageway or, to use another often encountered example, by children playing on a grass verge on the side of the carriageway. In Vale v Eggins a two-stage approach to the dissection of the plaintiff's conduct was held to be erroneous. The plaintiff in that case was behaving erratically and although the defendant perceived that the danger had past when the erratically acting pedestrian moved out of his lane he ought to have perceived that he could yet again act erratically and move back into the lane in which the defendant was driving and therefore cause a collision. 45In the current case the defendant perceived that the plaintiff was acting erratically. The defendant perceived that the plaintiff was "not walking straight" and that she was walking "quite fast". In cross-examination she agreed that the defendant was walking in a zigzag fashion. 46The plaintiff also made the point, which ought to have been obvious to everybody, that to see a mature woman acting in such a fashion at about 2.25am on a Sunday morning was unexpected and out of the ordinary. 47The defendant herself formed a view that the plaintiff might be intoxicated. However, by reason of s 49 of the Civil Liability Act 2002 the fact that the defendant perceived that the plaintiff might be intoxicated does not in any way affect the duty of care owed by the defendant to the plaintiff or indeed the standard of care owed by defendant to the plaintiff. Section 49 is in the following terms: (1) The following principles apply in connection with the effect that a person's intoxication has on the duty and standard of care that the person is owed: (a) in determining whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person's capacity to exercise reasonable care and skill is impaired as a result of being intoxicated, (b) a person is not owed a duty of care merely because the person is intoxicated, (c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person. (2) This section applies in place of a provision of section 74 of the Motor Accidents Act 1988 or section 138 of the Motor Accidents Compensation Act 1999 to the extent of any inconsistency between this section and the provision". 48Clearly, and it has not been argued otherwise, the defendant owed the plaintiff a duty of care. However the standard of care does not change merely because the defendant formed the view that the plaintiff might be intoxicated. I should add, for the sake of completeness, that s 50 of the Civil Liability Act 2002, which prevents the recovery of damages where a person is intoxicated, does not apply to the current case. 49However, in each of the three cases to which I have referred, there was an intoxicated plaintiff. The fact that the plaintiff was intoxicated was not of importance. What was of importance particularly in Vale v Eggins was the fact that the plaintiff was behaving erratically. Persons can behave erratically for a large number of reasons. The plaintiff may have been walking not straight and quickly because of some orthopaedic or neurological problem that affected the gait of the plaintiff or affected the speed at which the plaintiff might do things. The plaintiff may not have been suffering from intoxication but from illness which affected both her gait and the speed with which she was walking. The plaintiff may have been nauseous. The plaintiff may have been in need of medical treatment and was seeking to obtain it. Having perceived that the plaintiff was acting erratically, was it open properly to the defendant to form the view that the plaintiff would not continue to act erratically after the plaintiff had stopped on the ramp and proceeded to look to her right and then to her left? The answer is, in my view, no. 50The situation here is analogous to that which occurred in Vale v Eggins. The motorist in that case was still held to be negligent even though he perceived that the erratically acting pedestrian had moved out of the lane in which he was travelling. He ought yet have realised that the erratic behaviour of the pedestrian might continue and he could move back into the lane in which the defendant was travelling. Here, that is in this case, the defendant having observed erratic behaviour on the part of the plaintiff could not presume, as she did presume, that the plaintiff would completely desist from the erratic behaviour. 51The question then becomes, what could or ought the defendant to have done? The defendant could have flashed her lights. A flashing light, a flickering light, a strobe light, can often impress upon the senses more than a fixed light. Whether the plaintiff would have reacted to this increased visual cue is problematic, bearing in mind that the plaintiff did not react to the obvious visible cue of the defendant's approaching headlights. The fact that the plaintiff could be seen by the defendant means the plaintiff should have seen the defendant. 52The defendant could have sounded her horn. Whether that may have caused the plaintiff to perceive the presence of the defendant on the carriageway on the defendant's approach is again problematical because the plaintiff missed the auditory cue of the sound of the plaintiff's vehicle on the carriageway, her engine's noise and of her needing to accelerate the vehicle to maintain a speed of 40 kph as she continued to up the hill, up the incline towards the top of Hill Street. However, the sound of a blaring horn at 2.25am on a Sunday morning could well have taken the plaintiff out of her 'reverie', her disregard for her own safety formed because of her own condition, to which I shall in due course turn. 53The plaintiff could have reduced her speed further. It is argued by Mr Keramidas in his primary report that essentially such would require the defendant to have brought her car to a stop and let the plaintiff pass whenever it was the plaintiff decided to enter onto the carriageway to make her crossing of Hill Street. That depends upon a reductio ad absurdum. The defendant, as I pointed out, lived in Pine Avenue, East Ballina. She was almost home. There appears to have been very little traffic. Although the plaintiff herself said that she saw a vehicle approaching from her left, that is not corroborated at all and is, in my view, unlikely. It is certainly inconsistent with the evidence of the defendant and her passenger, Mr Bruen. Furthermore, the evidence only establishes that one car came upon the accident scene travelling north from Ballina township itself prior to the arrival of the emergency services. Traffic therefore was light. The defendant could have slowed her car down to walking pace in which case, even if the plaintiff launched herself in front of the defendant's vehicle, very little damage would occur either to the defendant's vehicle or to the plaintiff. 54However, there is one further consideration which in my mind is critical. In [9.8] of his primary report Mr Johnston said this: "Alternatively Ms Johnston indicates that she had observed the pedestrian as she approached the incident location and suggests that she took contingency action including slowing her vehicle. It would therefore also be reasonable to expect that another element of contingency action available to the defendant driver was to bias [sic] her vehicle towards the right side of her lane to provide greater clearance to the pedestrian. The presence of the median prevents providing additional clearance by crossing the road centreline. Assuming the driver deliberately biased their [sic] vehicle to the right such that the outside edge was 0.3 metres from the right edge of the lane this would provide a clearance on the left side of the vehicle to the lane of about 1.3 metres. Adding the width of the axillary lane this would give a maximum potential crossing distance of around 3.5 metres." 55That suggestion of Mr Johnson meets with some approval from Mr Keramidas. At p 6 of his report of 9 July 2012 Mr Keramidas says this: "The one additional comment the present author would make however, is that the positioning of the vehicle laterally within the traffic lane should be considered in the context of the fact that the pedestrian in this case, while she approached the kerb-line, did in fact stop, and according to the Defendant even looked in the direction of the vehicle making eye contact. In those circumstances it would create a different expectation in the driver's mind compared to a situation where the pedestrian continued in one motion from the footpath onto the roadway." 56On the following page Mr Keramidas says this under the heading "Point of Impact": "In this section of his report Mr Johnston agrees at a crossing range to the point of impact of between 3.0 and 3.5 metres, indicating that the 3.5 metre end of the range incorporates a contingency available to the defendant driver to bias[sic] her vehicle towards the right side of her lane [to provide greater clearance to the pedestrian]. This argument does have merit in the general case." He then turns his attention to the specific case. 57It is not uncommon for a motorist seeing pedestrians on or near the carriageway to give the pedestrian a "wide berth". If traffic conditions permit, a motorist might drive in the middle of the carriageway or pass wholly on the incorrect side of the carriageway in order to give a pedestrian on or near the carriageway a "wide berth". Here a "wide berth" could not be great because of the presence of the pedestrian refuge, the concrete island in the middle of Hill Street. It limited the extent to which the defendant could move her vehicle to the right. Furthermore, although there may have been no traffic coming in the opposite direction, for the defendant to have driven onto the incorrect side of the carriageway and wholly driven in the lane on the eastern side of the carriageway with the pedestrian refuge on her left would have been "suicidal" because of the short distance from the northern end of the pedestrian refuge to both the entrance to Compton Drive and the top or summit of the hill further north on Hill Street. 58However, on the argument put forward by Mr Johnston, which is valid, it was open to the defendant to move her vehicle a half a metre to her right. This, for reasons to which I will shortly come, is very important but before I can point out how important it is, it is necessary for me to discuss one further issue, and that is the speed at which the plaintiff herself may have been moving. 59According to the information in Mr Johnston's report, the median "normal" walking speed of a pedestrian is 1.42 metres per second. The data available for females aged between 30 and 39 suggests an average walking speed of 1.6 metres per second. Mr Johnston provides a table which shows the walking speeds for those impaired by alcohol. If the blood alcohol concentration is 0.18, the average walking speed for an adult aged over 20 is 1.32 metres per second. 60Similar information was given by Mr Keramidas in his primary report, although the data provided by him is a little more accurate in the sense that it is not rounded off or rounded down. A female aged in her thirties would be expected to have a walking pace of between 1.45 metres per second and 1.85 metres per second. Those are the speeds for the fifteenth and the eightyfifth percentiles. The median walking speed is 1.65 metres per second. At the top of p 18 of his primary report Mr Keramidas continues thus: "Accepting that the pedestrian's motion was at a more rapid pace than a normal walk, it would be expected that the minimum velocity for her would be 1.85 metres per second, which is equivalent to the 85th percentile normal walking pace for females of her age. This velocity therefore becomes the minimum threshold for her velocity, while it is unlikely that she would have been moving as quickly as someone in her age group and gender [sic] jogging, which translates to a speed of between 2.7 and 3.8 metres per second for the 15th and 85th percentile respectively. Essentially therefore, in creating an upper and lower bound [sic] it would be likely that the plaintiff in this case attempted to cross the roadway at a velocity of between 1.85 and 2.7 metres per second." 61That suggestion of Mr Keramidas is not accepted by Mr Johnston who believes in the lower figures. However, based on what both the defendant and Mr Bruen have told me, I accept that the plaintiff moved quickly and briskly. Indeed Mr Bruen suggested the plaintiff may have launched herself into the defendant's vehicle. Though I do not accept that, I do accept that she moved quickly. I accept that she moved more quickly than 1.85 metres per second. Doing the best I can, I accept that the plaintiff moved at a rate of 2 metres per second. 62If the plaintiff was moving at 2 metres per second she would move half a metre in one-quarter of a second. Travelling at 40 kilometres per hour is a speed of 11.1 metres per second. In a quarter of a second the defendant's vehicle, being driven at 40 kilometres per hour, would move 2.8 metres. The defendant's vehicle was 3.615 metres long. However, according to p 25 of Mr Keramidas' primary report in the paragraph numbered 3, the plaintiff struck the defendant's vehicle "about 1.5 metres behind the front near side corner". That is consistent with my finding. If I take 1.5 metres from 3.615 metres I have a distance of 2.115 metres, which of course is much less than 2.8 metres. In other words, if the defendant had moved over to the right-hand side of her lane rather than staying in the middle, and the plaintiff moved onto the carriageway in the manner in which she did at the time at which she did, the plaintiff would have crossed behind the defendant's vehicle because the defendant would have had sufficient time to drive past at 40 kilometres per hour. 63I have repeatedly in judgments both in the civil jurisdiction and the criminal jurisdiction pointed out that I am mathematically challenged. My background is as a linguist, not as a mathematician. However, I have carefully considered this and gone through the figures repeatedly. Again it appears to me pure logic that if the defendant had moved her vehicle a half a metre to the right, kept to the right-hand side of her lane rather than in the middle of it, she would have driven past the plaintiff before the plaintiff could have collided with her vehicle. Therefore the accident could have been avoided by the defendant taking the precaution of driving closer to the right-hand side of her lane than merely staying in the middle. 64I am therefore satisfied on the balance of probabilities that the defendant has been negligent in failing to take the further precautionary steps of flashing her lights, sounding her horn, slowing down further, but, in particular, in failing to keep to the right-hand side of the lane to give the plaintiff as "wide a berth" as possible. The defendant would still have been driving lawfully. The defendant would still have had a clearance of 30 centimetres between the right-hand side of her vehicle and the median strip. That is an argument advanced in this case by Mr Johnston in his report. He has not set out the mathematics but clearly it is an argument with which Mr Keramidas agrees in principle. The defendant ought to have done such things, bearing in mind that she had already perceived that the plaintiff behaving erratically, and she erred in deciding that the risk had passed because she had seen a temporary lapse in the plaintiff's erratic behaviour. 65I therefore find that the defendant was negligent. However, here the question of contributory negligence looms very, very large. I shall deal with that after a belated luncheon adjournment. 66Before the luncheon adjournment I had indicated that I was turning to the question of contributory negligence. Before I do that, however, I should add this. Earlier in my reasons I pointed out that I accepted that the defendant was initially driving at 50 kilometres per hour and that she reduced her speed to 40 kilometres per hour. I pointed out the inconsistent histories and then said that even if the defendant was initially driving at 60 kilometres per hour and reduced her speed to 50 kilometres per hour it would have made little difference to the result. That is because if the defendant had been travelling at 50 kilometres per hour at the time of the collision she would have been travelling at 13.8 metres per second. In one-quarter of a second her vehicle would have travelled 3.47 metres and of course that, added to 1.5 metres, far exceeds the length of the defendant's vehicle, such that if the defendant had been driving at 50 kilometres per hour in the quarter of a second it would have taken the plaintiff to traverse a further 0.5 of a metre the defendant's vehicle would have been even further past the plaintiff at the time when she, in fact, collided with the defendant's vehicle. 67I turn then to the question of contributory negligence. The defendant relies upon a report of Associate Professor Graham Starmer of 31 July 2011. There is no contest about Dr Starmer's findings. The plaintiff leads no evidence to the contrary, other than her personal recollections of how much alcohol she had consumed in the afternoon and evening of 25 October 2008 and in the early hours of the morning of 26 October 2008. The plaintiff in her evidence told me that she did not take any alcohol before 4.30pm, which was the time of the commencement of the reception. How much she had to drink thereafter is a matter of conjecture. A blood sample was taken from the plaintiff at 4.17am on the morning of 26 October 2008. The reading recorded as a result of analysis of that blood sample is 0.274 grams of alcohol per 100 millilitres of blood. 68Professor Starmer considered that the plaintiff's most likely blood alcohol concentration at the time of the collision would have been 0.302 grams in 100 millilitres of blood, in a range of 0.293 to 0.321. The Professor realised that ambulance officers had administered Hartman's solution and morphine to the plaintiff before she was admitted to the Lismore Base Hospital. The result of the Harman's solution would have only been a slight reduction of the concentration of alcohol in the plaintiff's blood. The Professor pointed out that the taking of morphine could affect the absorption of orally administered drugs including alcohol. It will retard their absorption. However, based on the history given by the plaintiff that she had finished drinking alcohol more than an hour before the collision, the Professor formed the view that the morphine would not have any significant effect on her blood alcohol concentration because of the time lapse. He therefore concluded that the most likely blood alcohol concentration was 0.302. 69At the foot of p 4 of his report the Professor says this: "To attain a blood alcohol concentration of 0.274 g/100 ml at 04:17 hours, Ms Stock would have needed to have consumed about 190 g (range: 159-251 g) of alcohol. This is equivalent to the alcohol delivered by nineteen [19] standard drinks. A standard drink delivers 10 g of alcohol and may be a middy [285 ml] of full strength beer, a nip [30 ml] of spirits or a glass [110 ml] of table wine." 70Earlier the Professor pointed out that in her motor accident personal injury claim form the plaintiff stated that she had consumed approximately eight stubbies of XXXX Gold beer. The plaintiff also told the police that she had consumed at least eight stubbies of beer and a shot of Sambuca and the plaintiff told hospital personnel that before the accident she had consumed twelve drinks. The Professor continued thus: "Assuming that Ms Stock started drinking at 4pm and applying this calculation to the scenarios above, I am of the opinion that, at the time of blood sampling (04:17 hours), Ms Stock's blood alcohol concentration would have been about: (i) zero (ii) 0.072 g/100 ml (iii) 0.199 g/100 ml." 71In other words, assuming that the plaintiff only had eight stubbies and commenced drinking at 4pm her blood level ought to have been "zero", but if she had consumed the alcohol of which she told the police her blood alcohol reading would have been "0.072 g", and if she had drunk the amount indicated to the hospital personnel her blood alcohol level should have been "0.199 g". I should indicate that there is some problem with the first estimate of the Professor in that although he starts the plaintiff drinking at 4pm on an assumptive basis he had earlier thought that the plaintiff indicated that the eight stubbies that had been consumed in a twelve hour period before the accident and that may have affected the zero result. In any event, what is abundantly clear is that the plaintiff's histories as to the amount of alcohol she had ingested are quite erroneous and she had much more to drink that she thought that she had. 72What was the effect of this blood alcohol concentration on the plaintiff? Paragraphs [7], [8], [11] and [12] of the Professor's report are these: "[7] Alcohol exerts its major effects on the structures of the brain which are responsible for balance and co-ordination. Alcohol reduces peripheral awareness as well as impairing speed and distance judgments. The ability to successfully divide attention between two or more inputs is significantly degraded at blood alcohol concentrations as low as 0.05 g/100 ml and impairment increases exponentially with a rising blood alcohol concentration. Glare resistance is also reduced under alcohol ... and perspective is distorted. [8] Ms Stock's estimated blood alcohol concentration at the time of the collision is very high. Alcohol, when, taken in large doses is a potent central nervous system depressant and death from alcohol abuse is usually due to depression of respiratory function or other complications, such as aspiration of vomitus. In this context, it should be noted that, for normal individuals, the generally-accepted minimum lethal blood alcohol concentration is about 0.250 g/100 ml. At blood alcohol concentrations around 0.300 g/100 ml, most individuals would be stuporous. A blood alcohol concentration of 0.300 g/100 ml would be close to the mean lethal level for non-tolerant individuals, while the lethal level for tolerant individuals lies between 0.450 g/100 ml and 0.600 g/100 ml. [11] Extensive research over the last decade has shown that alcohol exerts its major effects on the structures of the brain which are responsible for balance and co-ordination. Alcohol also reduces peripheral sampling efficiency and the ability to divide attention amongst several inputs is often reduced to the point of apparent confusion. Sometimes an alcohol-affected pedestrian does not make any attempt to avoid the oncoming motor vehicle or may stop and partially face the vehicle. On other occasions, the pedestrian starts to run or walk across the road, realises that a motor vehicle is bearing down on her and either 'freezes' or runs on or back into the path of the vehicle. In many collisions involving alcohol-intoxicated pedestrians, although the pedestrian has shown to have detected the presence of an oncoming vehicle, he has continued to cross the road. This has usually been attributed to an alcohol-induced increase of time-intervals between detection, decision and evasive action. Even if the presence of the vehicle is perceived, the ability of intoxicated individual to process all the incoming information correctly and quickly enough for an avoidance strategy to be formulated, is severely compromised. Another feature common to many such collisions is an increase in uncertainty on the part of the intoxicated pedestrian. Often, the pedestrian realises her miscalculation and stops or hesitates just before the impact. If an avoidance strategy is decided upon, then the intoxicated pedestrian experiences other difficulties, in terms of decreased agility and lack of co-ordination. At night, as noted above, the periods of total and partial blindness after exposure to glare is greatly extended under alcohol. These deficits, taken together with increased perception and reaction times, substantially reduce the chances of successfully avoiding an impact. The variable nature of all these reactions renders the behaviour of intoxicated pedestrians inherently unpredictable and their ability to interact with traffic is greatly reduced. [12] Of course, factors other than Ms Stocks' intoxication might have contributed to the collision, but it is difficult to imagine that alcohol impairment alone did not adversely influence her ability to make a decision that she could cross the road safely and then to complete the crossing. Even if she had perceived the presence of the on-coming vehicle, both her ability to process the relevant information in time and her motor co-ordinative ability would have been severely compromised." 73One can see some confusion continuing in the plaintiff's mind even after she would have recovered from her massive alcohol intake. A statement of the plaintiff is recorded in Senior Constable Woolven's police notebook of 3 November 2008. Extracts from it are set out on p 7 of Mr Keramidas' primary report. It contains this statement: "As I was about to cross back over the street [Hill Street], I looked for cars. I saw some oncoming lights coming from my left, up the hill. I saw that this car was a fair distance away. Because of this I began to cross the street. Prior to crossing, I did not see any cars coming from my right, a direction from Missingham Bridge. As I crossed the street, I was hit by a car. I did not see a car. Next thing I remember is waking up with a man standing over me and the Ambulance attending ..." 74The plaintiff says she saw lights coming on her left which would have been from on top of the hill, by which the plaintiff may have meant to indicate by using the words "up the hill". There may not, accordingly, be confusion of left and right at that time. However, an extract from what is contained in the plaintiff's personal injury claim form is set out by Mr Keramidas. In that she said this: "After attending a wedding on 25/10/08 I was walking home up Hill St. A car was coming from my right over the hill and as I was watching that vehicle another vehicle coming from my left hit me". 75If the plaintiff was looking in the direction in which she was to travel, on her left was the top of the hill, over which a car may have been travelling. There clearly here is confusion of left and right. It may well be, on the evening in question, that the plaintiff looked to her right and saw the plaintiff's vehicle and looked to her left and saw nothing and then perceiving that the vehicle, which was on her right, was in fact on her left, proceeded to cross the road, thereby colliding with the defendant's vehicle. 76Clearly, the plaintiff's state of inebriation contributed to this motor vehicle accident. There can be little doubt about it. No submission was put to the contrary. Clearly, the plaintiff, if she looked to her right, could have seen the defendant's vehicle and should have stopped. Either she did not see it and thereby was negligent or she saw it but misperceived it as being on her left-hand side, rather than her right-hand side. Such misperception would be attributable to her inebriation. 77I am required to apportion responsibility between the plaintiff and the defendant for this accident according to the relative culpability of each of the parties for this motor vehicle accident. In my view, the major contribution to this accident was caused by the plaintiff's inebriation. Of course, I must decide every case on its own facts. Findings in other cases are often of little utility because each case depends on its own facts. However, there are remarkable similarities in the present case to the three cases that I discussed earlier on in my reasons. The defendant has submitted that I should apportion between seventyfive percent and eighty percent of the responsibility for this motor vehicle accident to the plaintiff. I have formed the view that I should attribute threequarters of the responsibility for this accident to the plaintiff, such that the plaintiff's damages will be reduced by seventy-five percent for contributory negligence. 78The remaining issue is damages. There is not a great deal of difference between the submissions of the parties in regard to damages. Perhaps the best succinct overview of what has happened to the plaintiff since the accident is contained in the history accorded by Dr Chris Oates, following upon his examination of the plaintiff on 27 June 2012. 79Under the headings "history, current status and current treatment", Dr Oates records this: "She was taken by ambulance to Lismore Base Hospital. She complained of right shoulder pain to the ambulance officers. At Lismore Base Hospital there were complaints of neck and right shoulder pain. An x-ray showed a partially-impacted comminuted fracture of the anatomical neck of the humerus. She was discharged five hours later in a sling. She attended Dr Hudson, orthopaedic surgeon, Lismore at his fracture clinic. She had physiotherapy at Ballina. She saw her GP, Dr O'Neill, in Lennox Head and returned to work as a high school administration officer on 8 December 2008. Two weeks after the motor vehicle accident she noted loss of sense of smell and taste and also vertigo. She had a CT scan of the brain which was normal. She had ongoing right shoulder pain and movement was stuck at 90° of abduction. She had a MRI scan on 7 April 2009 showing a fractured neck of humerus and rupture of the transverse ligament with a lateral and anterior subluxation of the long head the biceps tendon. On 9 April 2009 Dr Hudson performed surgery in the form of osteotomy of the greater tubical bony spur. She was in a sling. She was off work. She had physiotherapy. She had an ultrasound scan on 21 July 2009 showing subdeltoid bursitis. Active abduction was limited by discomfort. She saw Dr Boyce, neurologist and independent examiner, on 28 June 2010. He diagnosed chronic vertigo with almost complete loss of sense of smell and decreased range of movement of the right shoulder and neck pain and he assessed 16% whole person impairment. She was seen by MAS Assessor Hew on 10 November 2010 who noted cervical dysmetria with decreased range of movement in the right shoulder but full range of movement in the left shoulder and he assessed the neck at DRE Category II giving 5% whole person impairment but felt the right shoulder was not at maximum medical improvement as it would improve with a subacromial bursal cortisone injection. She was reassessed by MAS Assessor Hew on 14 September 2011 when he found flexion of the right shoulder to 120°, abduction 150° with a positive impingement sign and he assessed 3% whole person impairment arising from the right shoulder. Assessor Hew apparently told Ms Stock that on this occasion he did not think that a cortisone injection would be of any benefit to her shoulder. She was reviewed by MAS Assessor Payten on 9 November 2010 and assessed with 3% whole person impairment for a loss of sense of smell and on 24 November 2011 and awarded 0% whole person impairment for vertigo which he felt had resolved. She still has loss of taste and smell sensation and daily occipital headaches arising from the cervical spine for which she takes Panadol and deep-seated pain within the right shoulder joint. She finds that driving is not too much of a problem. Right shoulder pain will disturb her sleep if she lies on her right side too long. She has Panadol fourth-hourly on a bad day and on a good day, two in the morning and two in the afternoon. She has been on Lexapro for the last five months, prescribed by her GP, Dr Flanagan in Casino, for post-natal depression. She was trying to find an acupuncturist to try this form of therapy for her headaches and shoulder discomfort." 80I should indicate that the joint assessments of Drs Hew and Payten of whole person impairment have been certified to amount to a combined permanent impairment of 11%. That entitles the plaintiff to obtain damages for non-economic loss. 81Quoting from the report of Dr Oates, I mentioned the assessment of Dr Boyce as being a 16% whole person impairment. Dr Oates, for the defendant, assessed a 5% whole person impairment, so that the assessment of the Motor Accident Medical Assessment Service is between that of the plaintiff and that of the defendant. 82Dr Payten assists me. He tells me this about the causation of the plaintiff's partial loss of sense of smell: "Ms Stock's partial loss of sense of smell has been caused by a blow to the head at the time of her motor vehicle accident, which caused a laceration of the scalp and also a short episode of loss of consciousness. This blow to the head caused some damage to the olfactory nerve roots as they pass through small holes in the bony roof of the nose before becoming attached to the brain." 83As far as the plaintiff's vertigo was concerned, Dr Payten said this of the causation of the vertigo: "Her benign positional vertigo is caused by the presence of otoconial debris lying loose in the right posterior semi-circular canal. These otoconia have become dislodged as the result of a concussive blow to the head sustained at the time of her motor vehicle accident." 84I should say that the evidence is clear that the plaintiff did have a blow to her head causing a laceration, for which some treatment was provided, inter alios, by the plaintiff's then partner, Mr Tony Watkins. 85In his second report, Dr Payten said the plaintiff had no permanent impairment because of her vertigo. It was based on this history: "Since last October 2010, she has been performing Epley's manoeuvre and, as a result of this, her positionally-induced vertigo began to improve slowly. She has not had any episodes of vertigo in the past couple of months." 86However, the plaintiff's sworn evidence, which I accept in this regard, is that although she does perform the manoeuvre which has been taught to her, she does from time to time have a recurrence of vertigo and she then needs to perform the manoeuvre on a few occasions before the vertigo will go away. When she does experience vertigo it can last for a number of days. I therefore accept that there is ongoing intermittent vertigo, despite the fact that Dr Payten thought that there was no permanent impairment caused by that condition. What is clear is that the dislodged otoconia cannot have reattached themselves to their anatomical position and are therefore prone to cause vertigo from time to time. 87As far as the plaintiff's neck is concerned, the diagnosis offered by Dr Hew is of soft tissue injury and although I have been, over the last eighteen years sceptical of such a diagnosis, it appears to be acceded to by Dr Oates. He says, inter alia, this: "The prognosis is for a continuation of symptoms arising from the cervical spine in the form of cervicogenic headaches, and for restricted range of movement and loss of endurance for physical activity, particularly for activities with the right arm at and above shoulder height on account of the right shoulder injury. At this stage, almost four years after the subject accident, the situation is not likely to alter greatly." 88Accordingly, I must accept that there is an ongoing soft tissue damage to the plaintiff's cervical spine, which causes, inter alia, cervical pain and also an occipital headache. There clearly is permanent damage to the plaintiff's right shoulder. She is right hand dominant and clearly, it causes her ongoing problems. 89The plaintiff is now thirty-eight years old. She is now in a new relationship with Mr Chris Edwards, with whom she commenced to cohabit in February 2010. The plaintiff and Mr Edwards are engaged to be married. They have been blessed with a daughter who, as I understand it, is now about four months old. The plaintiff is currently on maternity leave but intends to rejoin the workforce in February 2013. 90The plaintiff has a life expectancy of 50.31 years on the appropriate tables. There is nothing to suggest that her life expectancy has been compromised, nor could any such compromise be anticipated, unless the plaintiff continues to drink the amount of alcohol which she drank on the night of the 25th and the morning of 26 October 2008. No doubt the responsibilities of parenthood would dissuade her from that course of action, as has the damage she suffered in this motor vehicle accident. 91The plaintiff's damages for non-economic loss are at large, subject to the statutory maximum of $450,000. Damages under the Motor Accidents Compensation Act 1999 are not in proportion to a most extreme case but, as I said, are at large. The plaintiff has submitted that her general damages should amount to $175,000. The defendant has submitted that they ought be $150,000. It appears to me that the latter submission is the proper one and I accordingly am prepared to award $150,000 by way of damages for non-economic loss. The plaintiff's out-of-pocket expenses have been agreed to at $1,622.98. The plaintiff makes no claim for future out-of-pocket expenses. 92The plaintiff's past economic loss amounts to $6,217.75. That claim is not contested by the defendant. 93The plaintiff claims, as a buffer for future economic loss, the sum of $50,000. The defendant has submitted that a more appropriate buffer is between $25,000 and $30,000. Prior to going on maternity leave, the plaintiff was working in office administration for a firm of accountants in Casino. She eventually obtained that job after being made redundant by the Department of Education as a school administrator. When the plaintiff last worked, she was earning $580 per week net. In support of the defendant's arguments, Mr Turnbull submitted that an allowance of economic loss for one year might account for problems that the plaintiff might have in the future if she loses a job and needs to apply for another job and where her ongoing physical problems may cause her a difficulty in finding employment. There is much force in that submission. However, bearing in mind that the plaintiff has a minimum work expectancy of 29 years for the future, it appears to me that merely allowing one year future economic loss would be inadequate. Economic loss for one year for $580 per week net represents a lump sum of $30,160. I round that off at $30,000. It appears to me that the appropriate buffer for future economic loss is $45,000. 94A past loss of superannuation is $684. There is no contest in that regard. Unfortunately, Mr Radburn, for the plaintiff, made an error in his calculation, which is contained in MFI 3. He claimed past superannuation loss calculated at nine percent of the net amount, whereas it should have been eleven percent of the net past economic loss. The amount is $684 and there is no contest in that regard. 95There is also a claim for future loss of superannuation. If allowance is made for future economic loss, nine percent of the gross amount ought be awarded for loss of superannuation but eleven percent of an amount based on a net economic loss. As I said, I base my calculation of $45,000 on a net future economic loss and the lost future superannuation is $4,950. 96The only real contest between the plaintiff and the defendant concerns past and future care. Between the date of the accident, 26 October 2008 and October 2009, the plaintiff was living with her then partner, Mr Tony Watkins. The plaintiff deposed to Mr Watkins doing most things on her behalf as far as her care and normal household activities were concerned. From the date of the accident until December 2008, the plaintiff and Mr Watkins were living in Pine Avenue, East Ballina but then they moved to a rural acreage at Marom Creek, which is on the Bruxner Highway between Alstonville and Lismore. In respect of that period, the plaintiff claims gratuitous home care for 10.75 hours per week. The defendant submits that I should allow only one hour per day or seven hours per week. I am prepared, in the circumstances, to allow ten hours per week at $23 per hour for a period of twelve months. That amounts to $11,960. 97The plaintiff ceased to cohabit with Mr Watkins with the ending of their relationship in October 2009. For a period of two months between October and December 2009, the plaintiff moved to live with a friend of hers, Jeannine Torrisi at Lismore. Apparently Ms Torrisi occupied a two-bedroom house and the plaintiff lived in the bottom half of the house. Based on what the plaintiff told me, I am not persuaded, on the balance of probabilities, that Ms Torrisi provided to the plaintiff a minimum of six hours gratuitous care per week. Between December 2009 and January 2010, the plaintiff was living at Goonellabah in an apartment by herself. She was assisted in various ways by her parents. However, I am not satisfied, in respect of that period, that the plaintiff obtained gratuitous care for six hours per week, as required by the statute. 98Since February 2010, the plaintiff has been living with Mr Chris Edwards at his home at Casino. The plaintiff's claim is for 10.75 hours per week gratuitous care. The defendant submits that I ought only allow seven hours per week care. The plaintiff, to a large extent, relies upon an assessment made by Mr Matthew Underwood, an accredited occupational therapist. He provided a lengthy report dated 9 March 2012. That is very detailed but some of the detail is quite inappropriate and some of what he states is just plainly erroneous, on the evidence of the plaintiff herself. Clearly, there has been some double counting prior to the plaintiff's commencing to live with Mr Edwards. Mr Edwards was living in his home by himself and doing much that he now still does. In the circumstances, I am prepared to allow the plaintiff seven hours gratuitous care per week at the rate of $25 per hour. Seven hours at $25 per hour is $175 per week. On my calculation, between the commencement of February 2010 and today there have been 131 weeks. 131 times 175 is $22,925. The total I allow therefore for past gratuitous care is $34,885. 99For future care the plaintiff claims $160,310. The plaintiff's claim is based on the cost of paid commercial care for four hours per week. The defendant has submitted that two hours paid commercial care per week would be appropriate to do the heavier aspects of housework and the like, and I accede to that submission. It appears to me that the four hours per week is excessive. 100I allow two hours per week at the commercial rate, which I am told is $41 per hour; that is, I allow $82 per week. The multiplier I am told for 50.31 years into the future, the plaintiff's life expectancy, is 977.5. Applying that multiplier to $82 per week, I reach a lump sum of $80,155. 101The final amount claimed by the plaintiff is for "future equipment." This is based upon Mr Underwood's assessment that the plaintiff ought recover damages for a therapeutic natural pillow, an easy-twist jar and bottle opener, a left-handed vegetable and potato peeler, a Bamix V-slicer and multibox, a Messaluna Rocker knife, a foldaway hand-truck, a form of trolley, and a twotier laundry trolley. I am surprised he did not include in his list of requirements a motorised pepper grinder. Although Mr Radburn relies upon that assessment and claims $1,661.75, it appears to me that this is a wildly inflated claim and I allow nothing "future equipment." 102I am pleased to advise that the adding up of all of these amounts of money has been done by my Associate rather than me, so that the final sum ought be accurate. The plaintiff's total claim for damages was for $436,217.14. On the sums that I have allowed, the total comes to $323,514.73. One-quarter of that amount is $80,878.68. 103Are any further reasons for judgment required? PRIESTLEY: Not from the defendant your Honour. HIS HONOUR: Mr Radburn? RADBURN: Please the Court. 104HIS HONOUR: I have enquired of counsel for the parties whether any further reasons for judgment are required and am told that none is so required. For those reasons I give verdict and judgment for the plaintiff against the defendant for $80,878.68. 105Is there any argument about costs? RADBURN: No your Honour. PRIESTLEY: No about costs, but there is an application for a stay from the defendant your Honour. 106HIS HONOUR: I order the defendant to pay the plaintiff's costs. 107HIS HONOUR: I grant a stay of proceedings for twenty-eight days. Exhibits to be retained.