Stuardo bht Pinochet v Borsellino

Nature of case and undisputed facts 1At about 3.30pm on Monday, 5 November 2007, the plaintiff, Brandon Stuardo, who was then a 14-year old high school student, was injured in a motor vehicle accident that occurred on the roadway near a bus parked at a bus stop on Bunker Parade, Bonnyrigg, NSW. 2Shortly before the accident, the plaintiff and his younger sister then aged 11 years, amongst some other passengers, had alighted from the bus, which then remained stationary and parked at the bus stop to take on other passengers. The plaintiff and his sister had walked on the footpath for several metres away from the front of the bus and then onto the roadway, also in front of the bus. They were intending to eventually cross the road. At a point on the roadway some metres away from the bus, and approximately in line with the driver's side of the bus, an eastbound vehicle driven by Mrs Loredana Borsellino, the defendant, overtook the bus that was parked at the bus stop and collided with the plaintiff pedestrian, following which the plaintiff fell to the ground. 3As a result of the accident the plaintiff sustained an injury to his upper back as well as cuts, bruises and grazes to his limbs. Through his mother, Carolina Pinochet as his tutor, he has brought this action for damages for personal injury, claiming that the defendant was negligent in her driving at the time of the accident. The provisions of the Motor Accidents Compensation Act 1999 [" MAC Act " ] govern the proceedings.

Issues 4The defendant disputed the claim that she had been negligent, and claimed that she was unable to avoid the collision because the plaintiff had suddenly appeared on the roadway at the passenger side of her vehicle, and had made contact with her vehicle as she was passing the parked bus. The plaintiff disputed that there was alleged contributory negligence on his part in the events of the accident. 5The plaintiff's case was that he went to the aid of his younger sister in order to prevent her from inadvertently placing herself into a position of danger whilst crossing the road, and in doing so, he was struck by the defendant's vehicle. The defendant also disputed the quantum of the plaintiff's claim for damages. 6The determination of these issues involved a number of factual matters and related sub-issues, which I will identify where it is relevant to do so in the course of my reasons for judgment on those specific matters.

Summary of findings 7I summarise my findings as follows. At the time of the accident the plaintiff and his sister had walked some metres away from the front of the stationary bus but with the intention of crossing the road; the plaintiff's sister walked forward and to a position on the road near where overtaking traffic would pass. The plaintiff then stepped and reached forward in order to pull his younger sister to safety. He did so because his sister had been distracted whilst talking to their mother on her mobile telephone. As she did so she had walked into the area of the roadway where the collision with the plaintiff had occurred. Before the plaintiff's intervention, his sister was at risk of injury from being struck by the defendant's passing vehicle. 8As a consequence of those events, I have found that the plaintiff's sister required rescue from those circumstances. I have therefore found that since the plaintiff was engaged in the action of rescuing his sister, the issue of alleged contributory negligence on his part does not relevantly arise. 9I have found that the defendant had been negligent in the manner in which she drove her vehicle into collision with the plaintiff, and that such negligence was the cause of the plaintiff's injuries. I have assessed the plaintiff's entitlement to damages in the sum of $93,928.40.

Assessed heads of damage 10The parties adopted markedly disparate positions on the damages issues. The following table summarises the submissions of the parties, and my assessment of the plaintiff's entitlement to damages. Head of Damage claimed by plaintiff Plaintiff's Submissions Defendant's Submissions Award Paragraphs (a) Future loss of earning capacity $150,000 $Nil $80,000 [198] - [235] (b) Future loss of superannuation $16,500 $Nil $8,800 [236] (c) Future treatment expenses $77,250 $Nil $5,000 [237] - [248] (d) Past out-of-pocket expenses $1,439.30 $128.40 $128.40 [249] Totals $245,189.30 $128.40 $93,928.40

Array of oral evidence 11On the issue of liability, in the case for the plaintiff, oral evidence was given by the plaintiff and his younger sister Allison Stuardo. In the case for the defendant, oral evidence was given by the defendant Mrs Loredana Borsellino, and the driver of the nearby bus, Mr Gabi Awad. The only other oral evidence called was from the plaintiff's mother, Mrs Carolina Pinochet, principally on issues concerning damages. I will set out my conclusions on the credibility and reliability of the evidence given by these witnesses after summarising their respective account of the events.

Facts 12In the paragraphs that follow, I set out my findings concerning the plaintiff's background and circumstances, the conflicting factual accounts of the events of the accident, my findings concerning the resolution of that conflicting evidence, my findings concerning the plaintiff's injuries, matters of significance arising from the medical evidence, and the plaintiff's ongoing disabilities that relate to his claim for loss of earning capacity and future treatment expenses.

The Plaintiff's background and circumstances 13The plaintiff was born in 1994 and at the time of the accident he was aged 14 years and 6 months. He was aged almost 18 years at the time of the hearing. In the opinion of his family doctor, apart from having had the usual childhood illnesses, the plaintiff was in reasonably good health. 14Before the accident the plaintiff had participated in sports. He was in Year 8 at high school. He did not particularly enjoy his schooling. However, he enjoyed his woodwork course at school, and held the pre-accident ambition of becoming a carpenter, and he had hoped to work in the construction industry. Were it not for the accident, there is no apparent reason why the plaintiff would not have gone on to complete his secondary high school education, and then to go on to pursue a TAFE course with a view to acquiring a trade as a carpenter. 15In June 2011 he left school without completing Year 11. He did not like school and is not academically inclined. He was not working at the time of the hearing, and was in receipt of Centrelink benefits. At the time of the hearing he was due to commence a TAFE course with the intention of training as a hairdresser.

Conflicting factual accounts concerning the accident 16In the paragraphs that immediately follow I set out summaries and extracts of evidence concerning the differing factual accounts of the events of the accident as were recounted by the respective witnesses. Plaintiff's account of the events 17The plaintiff stated that on the day in question he had finished school at about 2.45pm and had travelled home, together with his younger sister, on their usual bus route. At about 3.30pm, the bus arrived at a stop near a park in Bunker Parade, which was not far from the plaintiff's home. On the day of the accident it was raining at the scene. 18At that bus stop, the plaintiff, his younger sister and two other children had alighted through the front doors of the bus. He stated that at that time, there were more than 10 other students from Bonnyrigg High School near the front of the bus. He stated that they were standing slightly away from the bus and near a bench seat adjacent to the footpath. The photograph comprising Exhibits "2" and "3" provide some perspective of the relative distances involved, but the evidence did not disclose any actual measurements of critical points and landmarks in the area. 19The plaintiff stated that usually, he did not wait for the bus to leave the bus stop before he crossed the road to walk towards his home because usually it took some minutes, which he estimated to be about 5-6 minutes, for the bus to wait in order to enable the waiting passengers to board the bus. This is a matter to which I shall return on the issue of alleged contributory negligence. 20The plaintiff stated that after alighting from the bus he was standing on the left of the kerbside of the bus, with the actual bus stop to his left. Beforehand, he had walked a short distance away from the bus, which was estimated by him, by reference to courtroom landmarks, to have been about 6.5m. In the circumstances in which that estimate was made, I did not consider it to have been proffered as an accurate measurement as it was made by reference to distances between items of court room furniture. The plaintiff stated that at this time he was about 1.5m away from the imaginary centre line of the bus when he was hit by the defendant's vehicle. He stated that his younger sister, who was at the time using her mobile telephone, was walking about two steps ahead of him and was talking on her mobile telephone: T22.25. 21The plaintiff described his location before the accident as being at a position on the roadway that was slightly in front of the bus, and in line with the driver's side edge. He said he had seen a gap in the traffic and looked left, then right, and at that time he saw what he perceived to have been the defendant's black four-wheel drive vehicle approach the area from his right. He stated that he believed that his sister was going to be hit by that vehicle, so he grabbed hold of her and pulled her back towards the lane in which the bus was parked, which resulted in his sister falling backwards, and onto her backside. 22The plaintiff stated that in the course of these events, namely by the time he had pulled his sister away from the roadway, he was facing away from the defendant's approaching vehicle. 23In those events the plaintiff became aware that he had been struck in the region of the upper back by the defendant's vehicle. He said he felt that in the circumstances he did not have enough time to move out of the way of the defendant's approaching vehicle. He was then aware of having been pushed by the vehicle, and falling straight to the ground, ending up in a position on the ground, which he thought was 2m away from the bus. He said that at the time of the accident, he had not had enough time to move himself out of the way. He said that after the collision, the defendant's vehicle had stopped some distance away from where the collision had occurred. He could not give a precise indication of the distance it took for the defendant's vehicle to come to a stop after the collision. 24When the plaintiff was cross-examined about those events, he denied the suggestion that he had not looked to his right for approaching vehicles when he reached the point in front of the bus near where he had been struck. Instead, he stated that when he had looked to his right towards the area from where the defendant had driven from, he had not seen any vehicles approaching from that direction. From the context, I infer that this occurred prior to his sister stepping forward into the line of roadway adjacent to where the parked bus was located. 25The plaintiff acknowledged that at the time of the accident he and his sister were trying to cross the road. In doing so, he said " we looked and we just crossed the road ": T50.30. In the context, I took the expression " we " to be a reference to his own actions. He further explained this as follows: "Q. ... A. Like, just got off the bus and then looked to the left because I was facing towards the park. Just, I looked to the left. That's when I could see the car. Just the car was coming. And I looked. There was nothing so then I turned around, followed my sister and then we went there and then we were walking slow because we wanted to check again and then after that, that's when I saw the car, the black Jeep, come and I just pulled my sister back." 26The plaintiff denied that he had simply walked into the defendant's vehicle at the time he was struck by that vehicle. He also denied that in the preceding events, he had been walking at anything other than a normal walking pace. 27The plaintiff denied hearing the sound of the bus horn before he was struck by the defendant's vehicle. 28The plaintiff explained that when the defendant's vehicle hit him, he fell to the ground, and he then did not quite know what had happened for about 2 seconds. He said that he then got up from the road. He thought that this had occurred with the assistance of someone who had alighted from the bus for the purpose of assisting him. Allison Stuardo's account of the events 29At the time Allison Stuardo gave evidence she was aged 15 years, and was in Year 10 at high school. At the time of the accident she was aged 11 years, and she was in Year 5 at primary school. 30Miss Stuardo confirmed that she had alighted from the bus together with her brother at Bunker Parade. She initially confirmed that at the time it was raining. She estimated that about that time there were probably 10 students from Bonnyrigg High School waiting at the bus stop in order to get on the bus. When her evidence as to how many students were waiting to get on the bus was tested in cross-examination, she first stated that she was sure there were ten of them, but she then conceded that there might " probably " have been six such students. At the time she made that concession I had the impression that Miss Stuardo was taking care to avoid giving inaccurate evidence. 31Miss Stuardo stated that after she had alighted from the bus she picked up her mobile telephone to take a call from her mother. She stated that she then became distracted by the use of that telephone in answering her mother's call. Miss Stuardo stated that by the time her mobile telephone had rung, she had taken about two or three steps from the gutter and onto the road when she answered the call from her mother. She said that she then took a further two steps past the edge of the bus. 32Miss Stuardo said that by the time she had taken those two further steps, she felt that her brother had grabbed her by her clothing, and had pulled her back. In that manoeuvre, her brother pushed her back, which from the context, was an obvious reference to being pushed away from the centre of the road and towards the kerb. At this time, she was still on her mobile telephone and was talking to her mother. 33She clarified her movements that comprised those last two steps by stating that when she was referring to having taken those additional two steps, they were from her position in line with the driver's side edge of the bus. In that regard, she said " I'd have to say the drive bit ". From the context, this was an obvious reference to the driver's side edge at the front of the bus. 34Miss Stuardo stated that after her brother had pushed her away and towards the kerb, he was then hit by a motor vehicle, and he then fell to the ground. There was no dispute that the vehicle that she was referring to was the defendant's vehicle. Mr Awad's account of the events 35Mr Gabi Awad stated that at the time of the accident, he was seated in the driver's seat of the bus that was parked at the bus stop in Bunker Parade. Despite his training to operate the flashing lights on the bus when dropping or picking up school children, he did not know whether at the time in question he had in fact operated the switch to show flashing lights on the exterior of the bus to passing motorists to indicate it was either a school bus or a bus carrying school children. He said that sometimes " we forget to do because its in a rush ". He had been the driver on this particular bus route for several years and he recognised the plaintiff and the plaintiff's sister as passengers who often travelled on his bus on that route. 36He said that at the particular bus stop where the accident occurred, on that day about 5 or 6 passengers had alighted, including the plaintiff and his sister, but not surprisingly, he could not exactly remember the numbers. He said he could not recall whether there were any people waiting at the bus stop in order to get on the bus. 37As to the events leading up to the accident, he stated that he had stopped the bus, put on the handbrake, opened the front door and let the passengers off. In his oral evidence, Mr Awad said he saw the plaintiff and his sister walk about 4-5 metres in front of the bus on the footpath at the side of the road. He said he then saw them " start to cross ". He stated that the plaintiff was in front at the time. 38Mr Awad gave a variable description of the manner in which he had seen the plaintiff and his sister walking. First he said they were " Just walking ". And he subsequently said that the plaintiff was walking " With fast steps ", with his sister behind him. Mr Awad said that he then looked in his right side mirror and saw a car coming. His evidence to that effect was as follows: "Q. Did you do anything? A. I just look at the mirror. I know he is crossing. And I tried to bip for him to let him know there is a car coming in. Q. All right. A. That's all. HIS HONOUR Q. Which mirror did you look in? A. On the right side. Q. That's your right hand driver's side mirror. A. Yeah. Where it's the driver. Q. Yes. And what did you see there? A. I see a car, dark coloured car, coming in. I couldn't exactly, what's the model, tell what's the model like. And - " 39Mr Awad explained that he " tried to pip " the plaintiff so he would not cross too quickly. He said " I horn the bus ", indicating that he sounded the horn. In his evidence in chief, Mr Awad gave the following detailed evidence on this topic: "Q. And then you said you tried to bip him, did you? A. I tried to pip for the boy so he is not to cross too quickly because the car coming. It's between me and him. Q. Do I understand you correctly when you say you pipped him, that means you sounded the horn on your bus? A. Yes. I horn the bus. Q. That's the motion you made with your hand. A. Sorry? Q. That's the motion you made with your hand? A. That's right. KHANDHAR Q. Did he he was in front of you. Correct? A. Yes. Q. In front of the bus. Did he appear to react when you beeped the horn? A. No. Q. Well what happened next? A. He just keep going and slam with the car. Q. What part of his body hit the body first, Mr Awad? A. Both hands first. Q. What then happened to his body? How did it move? A. Only, he fell on the side of the car. When the car trying to take, be away from him. Q. Now you have made a motion with your hand. It's very important. Let's do this slowly. When you moved your right hand in the fashion you did to say, "the car be away from him", what do you mean? It swerved away to the right? A. Yes. Q. Where did his body go? A. On the floor. On the street. Q. Did you see where the car went? A. I saw, like, they went the other side of the incoming traffic. Q. And then where did it go from there? A. It just stopped. Q. In the middle of the road? A. In the middle of the road. Q. How long did it stay there? A. Probably couple of minutes until things finished. Q. Your recollection is that that car stayed in the middle of the road? A. I think so. That's what I remember. HIS HONOUR Q. Towards which side did the boy fall, which side of his body? A. Just right in the middle of the on the on the white line, divided incoming traffic Q. Did he fall to one side of his body or the other side of his body, or flat on his face? What did he do? A. No, he fall like, soon as the car hit him, he fall like that, and then the rest of his body is crumpled like like that. Q. What you've motioned is a fall leaning to your left. A. Left, yes. Q. That's his left, was it? A. Yes. Q. Is that what you meant to convey? A. His left; on this side. KHANDHAR Q. When you looked in your right mirror, as you've described, when the boy started to move out, are you able to say, in car lengths, how far back the black car was when you first saw it? A. About two lengths of cars. Q. When the boy was in contact with the car, Mr Awad, can you remember where the sister was? A. Behind him." 40The evidence of Mr Awad that I have cited raised questions as to whether he was providing a factual account or a reconstructed account. I shall return to this matter in my assessment of the credibility and reliability of his testimony. 41In cross-examination, Mr Awad's evidence varied in some respects compared to his evidence in chief. 42Mr Awad was asked whether he had made factual statements concerning the events of the accident. It transpired there were two relevant statements. The first of these statements, which was more contemporaneous to the time of the accident, had been handwritten by him 2 days after the accident, and was in the form of an incident report: Exhibit "G". The content of that report was in the following terms: "I stopped in Bunker Pde to let out some students and to pick up some passengers. The students walked about 5 10 meters in front of the bus and they went to cross the road. I looked up and noticed a car hit the boy so I got out to help the boy. He got up and as it started to rain I told him to wait e in the bus for a (sic) ambulance. He said he had a sore wrist and back but seemed alright." [Overstruck alterations as in the original document] 43The evidence given by Mr Awad to the effect that the plaintiff and his sister had started to cross the road when they were about 4-5metres from the bus, which I took to be a reference to the front of the bus, if accepted as being accurate or reliable, raises the question of whether that was a safe place to cross the roadway. However, that evidence must be weighed alongside Mr Awad's alteration to his statement in the incident report, in which he stated that the distance of that point was 10 metres from the front of the bus. 44It appears that Mr Awad's more detailed evidence that went beyond the terms of his contemporaneous statement was based on a refreshment of his memory from a second statement given by him on 27 March 2010, which was prepared and typed by an insurance investigator some two and a half years after the accident, and which he had signed. That second statement was not tendered although the plaintiff had inspected it during the course of cross-examining Mr Awad after it had been called for. 45On the subject of whether there were other students waiting to get onto the bus at the bus stop in question, Mr Awad said that there were not always students from Bonnyrigg High at that bus stop. He re-iterated that he could not recall who had caught his bus at that stop that afternoon. This evidence reinforces the view that Mr Awad's recollection of the events in the 2 days following the accident was more detailed in material respects than was the case at the time he gave his evidence. 46There were some material differences between Mr Awad's contemporaneous statement and his oral evidence. In his oral evidence he was adamant that he could recall that it was fine weather and not raining on the day of the accident. In cross-examination he stated that he could not remember sounding the horn. He then explained he recalled placing his hands on the horn but did not recall hearing the sound of the horn. His statement made no reference to that matter 47Mr Awad could not recall whether the plaintiff's sister was talking into the mobile phone. He recalled seeing the plaintiff's sister with him on the roadway standing beside him within a half a metre, with the girl standing closer to the bus. He claimed he saw that the plaintiff did not stop, didn't look, and just kept on walking. 48At times it was difficult to discern whether Mr Awad was giving evidence based on an actual recollection or from a reconstruction of the events as he believed he had perceived them: "Q. Does that mean you can or you can't remember? I'm having difficulty with your accent. What did you just say? You can or you cannot? A. I can't remember, sir. Q. Cannot? A. That's right, I did I I remember I put my hands on the horn, but I didn't hear the horn going or not going. ... WELSH Q. That really all you saw was the actual accident itself. You weren't paying close attention to what those children were doing as they started to cross the road? A. My attention always when I pick up the kids and I count them and I let them go in straight away and without any bothering them, and so also my attention also to the other things for the bus. Q. Mr Awad, that's not an answer that responds to the question that I asked you? A. Can you repeat the question please again? Q. Your attention was drawn to these children crossing the road when the accident happened and you weren't paying close attention to what they were doing before then? A. Well, excuse me, that was after the kids was if I pick them up it was getting in and that's it. They already getting in, the kids, if there is any kids, I can't remember. If they get in they get in quickly and then I responding on something else to see what's if my. Q. Again, that is not an answer to the question that I asked. If you've got a problem with a question that I'm asking, if there's anything you don't understand, please say so. What I'm suggesting to you is that you were attending to other duties as a bus driver, other passengers most likely, until the accident happened, and it was only when the accident happened that you noticed where the children were on the roadway? A. Things happen quickly, so I when the when the passengers want to get in, they get in in one second, but otherwise my attention always to be watching the bus, in front of the bus." 49When Mr Awad was taken to his contemporaneous statement he gave the following evidence: "Q. This document which you completed two days after the accident is going to be far more accurate than what you recollected when you gave a statement in March last year, isn't it? A. I sorry, I didn't write those statement. Someone write it and I sign it. I read it and I sign it. Q. Which statement are you talking about now? A. The normal statement, the one the Q. The one to the investigator or this document that you've just read out? Are you saying this isn't your handwriting? A. That's my handwriting, yes, exactly. Q. But the statement that you gave which has just been given to me, that's not in your writing, someone typed it out for you? A. Yes. Q. I'm not suggesting that you typed it out. What I'm suggesting is that your recollection of events when you filled out this report is much, much better than your recollection of events when you did your statement two and a half years later? A. In the beginning when you do something like become hot and you don't know what you say and you probably write anything to just to organise something, and then when you settle down, someone write it and you go through it, you find everything correct in that. ... Q. What you recorded in this incident report was the truth, wasn't it? A. Well yes. That's what I saw, that's what I put in. Q. You see, you didn't say anything in there about you observing the children walking on the road at all? All you said was, "I looked up and noticed a car hit the boy"? A. Yes, that's what we supposed to tell the the West Bus, what happening in short terms, in short like shortcut. Q. There's nothing in there about hitting the horn, is there? A. Well, I didn't collect my information all in together to put them in one statement, you know what I mean? Q. But you do know from this that you were picking up some passengers? A. I can't remember I said. Q. But if you'd written it down here that is because it was true two days after the accident? A. No, excuse me, no. Sometime we say that because because that's what we're supposed to say, pick up and drop. Q. I see, so when you filled out this incident report you weren't concerned to tell the truth in it. Is that what you're saying? A. Part of the truth what is I put in paper. Not like the statement. Q. Mr Awad, I want to suggest to you that what you wrote down two days after the accident was your true account of what you saw when this accident happened. Do you agree with that or do you disagree with it? A. You mean what I write in here is the truth? Q. The truth, yes? A. Yes, it is. Q. That if it says you were picking up some passengers, that means when the accident happened you were picking up some passengers? A. I said so many times I can't remember this, I picked up passengers from the if I picked up without looking them coming in, that's another thing. Q. If you were picking up some passengers, that would explain why you didn't notice anything about this accident until it happened? A. Yes." 50The 10 metre alteration in Mr Awad's incident report Exhibit "G", in which it appears that there was an altered entry from either 5 or 50 metres to 10 metres, to describe the distance from the bus where the accident occurred, and Mr Awad's lack of recollection as to the circumstances of that alteration to his incident report, is also a material matter upon which his evidence should be weighed in order to consider whether it should be discounted as he now cannot recall the detail of why the alteration was made. I consider that the discrepancy in distances within the alterations creates a doubt about the reliability of his evidence. The defendant's account of the accident 51Mrs Borsellino, was driving a Suzuki Vitara vehicle east in the crescent that comprised Bunker Parade at approximately 50kph. She confirmed that it had started to rain shortly before the accident. She said there was no traffic in the area. She said her vehicle had approached the stationary bus from behind. She said the bus lights were not on and were not displaying any flashing lights to indicate the bus was being used as a school bus. 52Mrs Borsellino assumed from these circumstances that the bus was simply parked by the side of the road. A question immediately arose as to whether that was a reasonable assumption given it was the time of day when school children would be using buses to get home from school. As someone employed in a school, and whose work involved assisting in the schooling of autistic children, and with children of her own, this was something she most probably would have known. 53Mrs Borsellino described approaching and driving past the bus located in the lane to her left. In those events, she said she sensed that something had hit her car and she then swerved her vehicle to her right. It was not clear from her evidence as to whether her first awareness that something untoward had happened was hearing a " bang " or having " felt ... a push ". 54Mrs Borsellino was asked whether before the accident she had seen anything or anyone, and she answered that she had not. That evidence was directed to whether she was aware of anyone standing near the bus as she approached it from behind. The relevance of that evidence was that if there were such persons, and she had not seen them, this was some indication that she may not have kept a proper lookout. A further relevance of that evidence arises in that if such persons had been seen as she approached the bus in her vehicle, she would have been required to reduce her speed as she overtook the bus, as such circumstances would not have reasonably led her to believe that the bus was simply parked at the bus stop. 55After hearing the impact with the plaintiff, Mrs Borsellino, who was then travelling at about 50kph, which is the equivalent of 13.88 metres per second, said she then turned. I infer from this evidence that she had turned her head to her left, apparently whilst swerving, and she said that at this time she then saw the plaintiff " teetering backwards and fallen onto his bottom ". She described the plaintiff's movement of teetering backwards as having involved " a couple of steps " before he dropped to the ground. She later explained that she did not actually see which part of the plaintiff's body hit her car. Mrs Borsellino said that after swerving to the right, she then swerved quickly to the left and her vehicle then pulled over in about 2-3 car lengths. 56Mrs Borsellino said that she then alighted from her vehicle and saw the plaintiff sitting on the gutter in front of the bus. She said she also saw a girl, an obvious reference to the plaintiff's sister, standing in front of him, with her mobile phone in her hand. 57When cross-examined, Mrs Borsellino agreed that she had travelled on this particular portion of road before. She knew there was a bus stop where the accident occurred and she knew that there were a lot of school children travelling around on buses in that area at that time of the day. She also agreed that at the scene, Bunker Parade comprised a sweeping left curve, almost a semi-circle, on the approach to the bus stop from her direction of travel. 58Mrs Borsellino stated that she could not really say whether she had seen children waiting for buses at that place. She said that on this occasion, she had looked for flashing lights or parking lights on the bus, and absent such lights, she had assumed the bus was parked. Mrs Borsellino initially stated that she did not know the distance, between her vehicle and the bus, which separated the two vehicles as she passed the bus. She then ventured an estimate that this was perhaps a distance of 1 metre, and she asserted that it was a narrow road. She later agreed that the road was wide enough to pass the parked bus. She acknowledged she was " not very good with distances ". 59Although photographs of the area were tendered, one of which shows a parked vehicle, to give some impression of the width of the roadway, without evidence of the actual measurements, the photographs are of limited assistance in discerning the width of the road: Angel v Hawkesbury Council [2008] NSWCA 130, at [71] - [72], citing Blacktown City Council v Hocking [2008] NSWCA 144, per Tobias JA at [167] - [172]. 60Significantly, when Mrs Borsellino was questioned about the presence of children on the footpath near the bus on her approach to the scene, she stated first, that she did not see anybody, and when further pressed, she stated that there weren't any children there. When pressed further as to whether she had been keeping a proper lookout, on several occasions she denied that she had failed to do so. In rejecting that proposition, Mrs Borsellino stated that she was always careful in school zones and around buses with flashing lights, and she denied it was possible that at times, she had been inadvertent. 61Counsel for the plaintiff sought to embarrass that denial by obtaining Mrs Borsellino's acknowledgement that some 10 months after the accident, she had received a traffic infringement notice for exceeding the speed limit in a school zone. My purpose in mentioning that particular evidence is to make it clear that whilst I have not overlooked this evidence, I have nevertheless disregarded it as being irrelevant to the task of analysing what had actually occurred in the accident in question. 62Mrs Borsellino stated that in the events of the collision she had not seen the plaintiff's sister, and had only seen the plaintiff. 63Mrs Borsellino acknowledged that, in hindsight, her assumption that the bus in question was parked, proved to be incorrect, in circumstances where she knew it was a bus stop where, at this particular time of day, school students could be typically getting on and off buses on their way home from school. She re-iterated that the basis of her assumption that the bus was parked was the absence of display of any lights, and that she did not see anybody, which I took to be a reference to an absence of any persons around the bus. 64In that regard, Mrs Borsellino confirmed that it had not entered her consideration that at the time, the bus in question could be a bus used by school children. She also confirmed that at the time she was not looking out for pedestrians as she drove past the front of the bus. This was because she did not think there were any pedestrians there, and she therefore did not slow down as she passed the bus. She stated the position would have been different if she had been aware that there were people around the bus, in which case she said she would have slowed down in speed.

Credibility and reliability of testimony 65In the following paragraphs I set out my evaluation of the credibility and reliability of the testimony given by the respective witnesses.

The plaintiff, Brandon Stuardo 66In the course of his cross-examination of the plaintiff, counsel for the defendant attacked the credit of the plaintiff and the reliability of his evidence in a number of respects. 67These matters ranged from a suggestion that the plaintiff was putting forward a description of the events of the accident that best suited his case, a suggestion the plaintiff did not accept: T42.42-T43.9; that the plaintiff was an unreliable estimator of time and distance, as was apparent in various aspects of his testimony on the events of the accident, which was a matter to be gauged from his evidence as a whole; and that with regard to circumstances in which the accident occurred, the plaintiff had made contact with the defendant's vehicle with both of his hands rather than with his back as he claimed, a matter that was also denied by the plaintiff: T55.40; 68In final submissions, counsel for the defendant sought to extend the attack on the plaintiff's credit to additional matters that were not put to the plaintiff in cross-examination. 69One such matter was the suggestion that the plaintiff was exaggerating his condition by " editorialising ... to make his case sound worse than it is ... particularly given the medical evidence in this case ": T143.3 -T143.11. That was a suggestion that was not put to the plaintiff for comment when he was giving evidence. I consider that attack was therefore unavailable to the defendant in the circumstances. Furthermore, the basis of that submission was difficult to discern, since the medical expert retained by the defendant, Associate Professor Ryan, had stated that " Mr Stuardo displayed no sign of exaggeration, embellishment or pain behaviour ." 70Another such matter was the suggestion that in his evidence the plaintiff wanted to maximise the number of people standing around the bus stop at the time of the accident, the suggestion being that this would provide a basis for it to be argued on his behalf that the defendant would have had a greater opportunity to see them as she drove around the sweeping left bend in the roadway: T144.45. Similarly, that motive was not a matter that had been canvassed with the plaintiff in cross-examination. 71My assessment of the plaintiff as a witness was that he was candid, unsophisticated, and without guile in the manner in which he related his evidence. I considered his evidence was given honestly and without deliberate attempts on his part at exaggeration. The plaintiff gave what I thought was carefully considered evidence although at times this appeared hesitant. In my view this was because of the pace of questions, his age, and his unfamiliarity with the processes of the court. Because of the limited vocabulary of his answers to questions, and the at times halting flow of the content of his answers, his evidence required some interpretation as to the sequence of events. I considered that his evidence on damages issues was given in a non-exaggerated and understated manner. 72The only relevant reservation I found with the evidence of the plaintiff was that he gave estimates of the passage of time and the measurement of distances in a way that raised questions as to the reliability of his answers in that regard. It appeared to me that at some times when he used the expression " minutes ", he was speaking figuratively about what was in reality, moments or seconds, or a fleeting passing of time, indicating that his evidence as to speed and distances had to be considered and interpreted with some care, and not literally, where those estimates and measurements proved to be material.

The plaintiff's sister, Allison Stuardo 73At the conclusion of the evidence given by Miss Stuardo, I indicated to counsel that my initial impression of her evidence was that it was given completely without guile, and that she gave her evidence in a straightforward and honest manner. 74The context of that impression is that I had been informed that there were some concerns entertained as to Miss Stuardo's ability to give evidence as it was said she had a form of autism, Asperger's syndrome, and that she could possibly have some difficulty in getting her words out, or calmly dealing with the fact that there would be a number of people in the courtroom when she gave her evidence. No special arrangements were made in that regard as I did not see the necessity for this, and she gave her evidence in the presence of 3 court staff, 3 defence lawyers, 2 plaintiff's lawyers, her mother, her brother, an interpreter, and 2 claims representatives of the CTP insurer. 75As would have been expected in such circumstances, counsel took care as to the manner and pace of the questions that were put to Miss Stuardo in order to accommodate any such concerns. In her evidence Miss Stuardo made appropriate concessions when cross-examined, for example, acknowledging that instead of ten students at the bus stop, there could have been just 6 students. 76In his final address on behalf of the defendant, Mr Khandhar submitted that no adverse inferences ought to be drawn from the fact that the cross-examination of Miss Stuardo may have been less vigorously applied than might otherwise have been the case where a witness in her position did not have her described condition. I considered that to be an appropriate submission in the circumstances, and I have adopted that course in assessing her evidence. 77After taking into account those matters, I nevertheless formed the view that Miss Stuardo's evidence was reliable and could be relied upon as a truthful account of the events that she felt, saw and heard on the day of the accident. I detected no hint of exaggeration or tailoring of her evidence to suit the case sought to be made on behalf of the plaintiff.

The driver of the bus, Mr Gabi Awad 78In my assessment, Mr Awad gave very confused evidence of the facts surrounding the accident, and his evidence as a whole appeared to be reconstructed in an endeavour to assist. My assessment was that Mr Awad would not have had much opportunity to observe the full detail of the events of the accident that he had described and I considered that his evidence on factual matters should be discounted. 79Mr Awad was unable to recall many aspects such as the number of passengers alighting and entering the bus. He was also uncertain as to whether he put on the bus hazard lights. He said that through his side mirror he happened to observe the defendant's vehicle when it was about 2 car lengths away from overtaking his parked bus from behind and that he beeped his horn to warn the plaintiff of an impending collision, however these details did not appear in his written statement. 80In a written statement given 2 days after the accident he described the facts quite differently to some of his evidence given in court and which did not appear in this statement, which would be expected to be a more accurate description of events as these would have been fresh in Mr Awad's mind at the time he wrote it out. 81A question arose as to whether Mr Awad's inability to recall whether he had switched on the flashing lights on the bus when his passengers were disembarking should be taken to be indicative of an unreliable memory. In the circumstances of this case, I do not think that should be the conclusion that necessarily arises from this piece of testimony because the action described, switching on the flashing lights, would have been an action that Mr Awad had taken many, many times over the course of the years he drove on that bus route, and it would be unreasonable to expect that he should be able to recall whether or not he took that action on this particular occasion. 82When Mr Awad was asked to make a statement to a representative of the CTP insurer on 27 March 2010, this was the first time since the accident he had been asked to make a statement since filling out the incident report 2 days after the accident: Exhibit "G". In the intervening period of 28 months, it appears that he would have had no particular reason to give the matter further consideration. 83Mr Awad gave his evidence after refreshing his memory from the insurance statement dated 27 March 2010. It is plain from his refreshed memory that his oral evidence contained more detail than the material that was in the initial incident report Exhibit "G". The cross-examiner clearly took a course that avoided the possibility of the insurance statement being tendered by the defendant. As the statement was not tendered, it is not possible to examine its significance to the task of assessing the reliability of Mr Awad's evidence. 84In my view, a guide to the assessment of the reliability of the evidence of Mr Awad comes from the following extracted passage of his evidence: " ... A. Things happen quickly, so I when the - when the passengers want to get in, they get in in one second, but otherwise my attention always to be watching the bus, in front of the bus." 85Having regard to that evidence, in the context of this case, if there were some 6-10 passengers waiting to get into Mr Awad's bus as was claimed by the plaintiff and his sister, a matter that Mr Awad was not in a position to refute, then clearly, on this evidence, it would have been very unlikely that Mr Awad would not have been paying attention to those passengers boarding his bus, and instead, looking out of the front window of the bus, so as to be able to then see the things he claimed to have seen in describing the events of the accident. 86In my view, accepting as I do that there were some 6-10 passengers boarding as claimed by the plaintiff and his sister, given Mr Awad's duties as a bus driver, which included monitoring boarding passengers, I consider it very improbable that Mr Awad would have been able to observe and take in the detail of the matters he described in his testimony. This suggests to me that he reconstructed his evidence, albeit in an honest attempt to assist. However, in my view, in doing so, I consider he gave an inaccurately reconstructed account, which I consider to be unreliable, and I therefore do not accept it for those reasons. 87In my view, on this occasion he would have had to have been looking at those passengers entering his bus. This is because he would have to collect fares if there were passengers who did not have bus passes, as he explained in general terms would have been the case. He would also have to have considered whether those school children without a bus pass would probably be entitled to one as he explained, if in fact he did not ask for a show of passes. In addition, as it was raining, it was more likely he would have been paying attention to passengers getting off and on the bus, than looking out the window to the front of the bus. 88For the reasons I will identify in my liability findings, I have found Mr Awad's evidence to have been unreliable in a number of very material respects.

The defendant, Mrs Borsellino 89I considered that the defendant, Mrs Borsellino, gave an unembellished account of the events as best she could honestly recollect them. However, I consider that her version of those events was inaccurately reconstructed in some material respects. I will set out the details suggesting that view when stating my reasons for preferring the evidence of the plaintiff and his sister on the relevant sequence of events that occurred in the lead up to and during the collision. 90In stating that view, I do not intend to convey the impression that Mrs Borsellino was in any way dishonest in her evidence. On the contrary, I considered that she attended to the questions asked of her with some care and deliberation, but her answers nevertheless persuaded me that on critical matters, for the reasons identified in my findings of fact, I should not rely upon her evidence, because on crucial matters, it was based upon unreliable reconstruction.

Findings concerning the circumstances of the accident 91In order to determine the most probable sequence of events that unfolded in the lead up to, and which occurred in the course of the accident, it is necessary to resolve some matters that were raised as conflicting testimony.

Alighting from the bus 92There is no dispute that the bus from which the plaintiff and his sister had alighted had become stationary and parked near the bus stop on Bunker Parade. There is also no dispute that the plaintiff and his sister needed to cross the sweeping curve of Bunker Parade in order to walk to their home. 93The evidence as to the distance and juxtaposition of the bus in relation to the metal pole at the bus stop and the nearby ramp cutting in the kerbing was left in an imprecise state that did not permit definitive findings on this point.

Rain 94There was a dispute on the evidence as to whether it was raining at the time the accident occurred. The plaintiff, his sister, and the defendant, stated that it was raining. The evidence of Mr Awad on this topic varied from stating that it was raining at the time, as appeared in his contemporaneous incident report, Exhibit "G", and his statement in oral evidence to the effect that the weather was fine: T98.40. I considered Mr Awad's statement comprising exhibit "G" to be a more reliable source of factual information on this issue, and I find that at the time of the accident, it had been raining. The extent to which there were variations within the evidence as to whether it had just started to rain, or as to how heavily it was raining, were not matters that needed to be resolved.

Mobile telephone use by plaintiff's sister 95The question of whether the plaintiff's sister had been using her mobile telephone in the events immediately before the accident was the subject of differing evidence. The plaintiff, his sister, and his mother, who had been talking to her daughter on the mobile telephone at the time of the accident, all gave consistent and confirmatory evidence on this issue, and after the accident, the defendant had seen Miss Stuardo holding a mobile telephone in her hand. In contrast, Mr Awad could not remember seeing the plaintiff's sister using her mobile telephone in the events leading up to the accident. In these circumstances I do not regard Mr Awad's evidence as being contradictory of the evidence given by the plaintiff, his sister and his mother, and I accept that a mobile telephone was being used by Miss Stuardo at the time, as was stated by her and the plaintiff.

Whether other passengers were waiting to board the bus 96An issue emerged as to whether there were other passengers, namely school children, and if so, how many were waiting to board the bus at the time the plaintiff and his sister had disembarked from the bus. On this issue, the defendant, who was in the course of approaching the bus from behind in order to overtake it, did not see any children waiting to board the bus. In contrast, the plaintiff and his sister described the presence of children at the bus stop waiting to board the bus, the numbers of those children varying from about 6 to 10 children. 97The evidence of Mr Awad was that he could not remember whether there were other passengers waiting to be picked up at the bus stop. Mr Awad's evidence permitted the possibility that there were other students waiting to board the bus. This as evidenced by his acknowledgment that part of his duties involved checking bus passes, and of having taken on such passengers at that stop on other occasions, which happened to be school days. 98I consider that the plaintiff and his sister gave truthful evidence on this issue. Their evidence on the matter was not glaringly improbable, and seemed truthful to me, and I saw no sound reason for not accepting that evidence, although it is not possible to definitively resolve precisely how many school students were waiting at or near the bus stop at the time.

Intention to cross the road near the parked bus 99In my view it was clear from the evidence that the plaintiff and his sister had intended to cross the roadway at the point near where the accident occurred. It follows that they, or at least one of them, being the plaintiff as the eldest, and the one who had the responsibility of looking out for his younger sister, had intended to cross the road at some point to the east of the stationary bus, as he had done on previous occasions, as he explained in his evidence. 100This conclusion has some relevance first, to the issue of the alleged negligence of the defendant, because it has an impact upon whether the defendant would have been in a position where it was likely that she could have seen the plaintiff before the collision, and secondly, whether there was contributory negligence on the part of the plaintiff, as was alleged. I will give separate consideration to those matters in stating my findings on the issues of negligence, contributory negligence and causation.

Width of roadway at passing point 101The photograph comprising Exhibit "B(3)" shows a perspective view of the roadway in question. It shows Bunker Parade as comprising a single eastbound and westbound lane and the metal pole bus stop sign in the middle ground. Exhibit "3" shows a close view of the bus stop but the photographs are not taken on the same occasion as the bus stop sign in the respective photographs is different, as is the lane line markings in Exhibit "3", apparently. Co-incidentally, it appears that the same truck is parked at the kerbside of the westbound lane in Bunker Parade. 102No evidence was called as to the width of the eastbound lane of Bunker Parade. Similarly, no evidence was called as to the width of the bus or the defendant's vehicle. 103It is not appropriate to try and interpret photographs to estimate passing clearances and lane widths without such specific evidence: Blacktown City Council v Hocking . 104The defendant was unable to state how far from the bus her vehicle was as she drove " along the road ". I took that evidence to relate to the distance that separated the passenger side of her vehicle from the driver's side of the bus. The defendant said of that distance, " I don't know. A metre, perhaps ": T130.20. She also stated that she was not very good with distances: T131.39. She described the road as being narrow and said she stayed on her correct side of the road. She said the lane was wide enough for her vehicle to pass the bus and also remain on the correct side of the road, but she described it as a narrow passage, being a narrower passage than if the bus had not been there: T131.24. 105That evidence was uncontradicted.

Sequence of events leading to the accident 106I have concluded that the accident occurred in the manner described by the plaintiff and his sister. In reaching that conclusion, I have preferred the evidence of the plaintiff and his sister to the evidence of Mr Awad and Mrs Borsellino, where there were relevant differences, as follows. 107In that regard, I find that after the plaintiff and his sister had walked in an easterly direction on the footpath of Bunker Parade, at some point, being an uncertain distance from the front of the bus, but probably of the order of 10 metres or so (greater descriptive precision of the distance not being possible) both the plaintiff and his sister stepped out onto the roadway and walked into a position that aligned them with the centre of the front of the bus, but still at a distance of some metres away from the front of the bus. The distances were not the subject of accurate measurement. The bus had stopped a short distance before the metal bus stop pole. There was some unclear evidence as to distances around the pedestrian ramp in the kerb near that point. 108I find that at that time the plaintiff and his sister were walking close together, and in those events, the plaintiff had looked first to his left, and then to his right as he had stated, with the intention of crossing the road. In that regard, I consider that it was more likely that as the older one, the plaintiff would probably have been slightly in front of his sister in order to make that judgment. 109I find that as he did so, the plaintiff was able to observe the approach of the defendant's eastbound vehicle, and at the same time observe his sister take some steps forward, towards the south, on the road, either near or past the driver's side alignment of the side of the bus. I accept the evidence of Miss Stuardo to the effect that she had taken about 2 such steps from the position she was in at the centre of the alignment of the bus. I find that whilst this was occurring, Miss Stuardo had been distracted from her surroundings because she was speaking to her mother on her mobile telephone. 110I find that at that time, the plaintiff had observed his sister moving forward and into what he obviously thought was a situation of potential danger to herself, and so he then moved to both step and reach forward in order to grab his sister by her clothing, and to pull her away from the path of the approaching vehicle being driven by Mrs Borsellino. 111I find that in the course of the forward movements made by the plaintiff as he described, he then turned to push his sister away from where she was located, in order to push her towards the kerb with some force. I find that he in fact did so, forcing her onto her backside on the roadway. I find that in the course of these events, the plaintiff was struck in the region of his upper back by a portion of the defendant's passing vehicle. Following those events, the plaintiff then fell towards his left side, and onto the roadway, injuring various parts of his body, by way of bruises, cuts and abrasions, and including an injury to his left wrist. 112In reaching these conclusions, for the reasons that follow, whilst I accept that Mrs Borsellino felt and heard the impact between her vehicle and the plaintiff, and then undertook swerving and braking manoeuvres in her vehicle as she described, I have not accepted her evidence to the effect that after hearing and feeling the impact between her vehicle and the plaintiff, she turned to see the plaintiff teeter and fall away towards the roadway, notwithstanding that the plaintiff most probably became unbalanced with his footing after the impact, and in fact fell onto the roadway. 113Whilst I accept that Mrs Borsellino gave her evidence sincerely, and with the honest belief that she was recounting what she had seen, I consider that she was not in a position of advantage to observe or accurately observe the sequence of events she described. Whether or not this was due to the shocking and sudden circumstances is not a matter I have to decide. However, I have concluded that parts of her evidence were necessarily, but not accurately, reconstructed and not based on actual observations. 114In that regard, I considered that as Mrs Borsellino had not seen the plaintiff at the side of her vehicle at the time she had passed the bus, and because she had been travelling at about 13.88 metres per second, it was very unlikely that she would have had the opportunity to make the observations she related in her evidence, namely having heard and felt the impact of her vehicle with the plaintiff, then reacting by turning to see the plaintiff fall away to the left, whilst also at the same time managing to swerve to her right potentially onto the incorrect side of the road, and then swerve to her left, and also bring her vehicle to a stop in about 2-3 car lengths, in a very short space of time. 115In my view, that evidence indicates that Mrs Borsellino undertook a process of reconstruction in describing the events as she did, which, whilst understandable, and which I find was in no way intended to be inaccurate or untruthful, nevertheless requires that I regard that evidence as being unreliable on those specific matters for the reasons I have outlined. 116Furthermore, for the reasons that follow, I have not accepted the evidence of Mr Awad on critical matters, and I have instead preferred the evidence of the plaintiff and his sister. 117I found Mr Awad's evidence to be unreliable when compared to the evidence of the plaintiff and his sister. At paragraphs [78] - [88] of my reasons I have already in part outlined why I have considered Mr Awad's evidence to be less reliable than that given by the plaintiff and his sister. 118In essence, I consider that the combination of circumstances that prevailed at the time meant that Mr Awad was more probably than not preoccupied with his duties as a bus driver than observing the matters he described in his evidence. The circumstances to which I am referring include the fact that it was raining, people were alighting from the bus, others were either waiting to board the bus, or were in fact in the process of boarding the bus, Mr Awad would have given at least some of his attention to who was boarding his bus, whether they had to pay fares or had bus passes, or were otherwise entitled, as well as observing that those disembarking were doing so safely. 119In my view, in those circumstances, I consider it was unlikely that Mr Awad would have had a sufficient or adequate opportunity to take in and reliably recount the events that were at the same time taking place in front and some metres from his bus. 120Other features of Mr Awad's evidence that in my view cast doubt about the accuracy of his evidence were: the discrepancy between his initial statement and his evidence on the peripheral matter of whether or not it was raining; the further discrepancy concerning the distance from the bus that he perceived the plaintiff to have been crossing, namely 4-5 metres, compared to 10 metres; the fact that the discrepancies arose and remained unexplained notwithstanding that he had refreshed his memory from a non-contemporaneous statement; his inability to recall whether there were students waiting to board the bus at the stop in question; his non-recollection of whether the plaintiff's sister was using her mobile telephone, notwithstanding that he claimed to have seen both the plaintiff and his sister within half a metre of each other on the roadway in front of him; his apparent disavowal of his statement that was not in evidence and from which he had refreshed his memory, when he said of his incident report and the statement " Part of the truth what is I put in paper. Not like the statement "; and his acknowledgment that the events all occurred very quickly. 121In my view all of these matters cast doubt upon the reliability of his evidence in which he claimed that he was attending to his duties, and at the same time had looked in the side mirror, saw the defendant's vehicle approaching then attempted to sound the horn and then saw the plaintiff make contact with the vehicle with his hands before falling onto the road. 122On my consideration of these matters, I have concluded that albeit with the intention of trying to assist with an account of what he believed he had seen at the accident scene, Mr Awad has nevertheless provided an inaccurately reconstructed account of the events of the accident, which was therefore not reliable. 123I am reinforced in that view by Mr Awad's evidence in which he acknowledged that if he had been picking up passengers at that bus stop at the time, a matter that he could not in fact recall, that would explain why he did not notice anything about this accident until after it had happened. This would also explain why he then resorted to a process of reconstruction, which in my view was erroneous, and not to be preferred when compared with the more reliable accounts given by the plaintiff and his sister, both of whom were involved in the actual events, rather than simply having observed them for no particular reason. 124In my assessment, for the reasons I have stated, I prefer as being more likely and credible, the factual accounts given by the plaintiff and his sister.

Initial treatment received by the plaintiff 125Surprisingly for this type of case, there was no primary material tendered from the Ambulance service or Liverpool Hospital concerning the initial assessment and treatment of the plaintiff's injuries. There was no explanation for the absence of this material, which if available, could have been tendered by either party if they thought fit to do so. 126The plaintiff tendered some medical records from the Children's Hospital at Westmead: Exhibit "D". The recorded principal diagnosis in those notes was " MVA with Back Pain ". The triage notes recorded that there were only x-rays of the cervical spine. Chest and pelvic x-rays were reported as having revealed no abnormality. The nursing notes made on arrival stated that the plaintiff had been complaining of back, abdominal and chest pain, and it was noted that morphine was administered for these problems. Several abrasions were noted as having been observed on the plaintiff's limbs. 127The Westmead notes contained 2 relevant entries concerning the manner in which the plaintiff came to be injured. 128The first such note was on page 5 of the notes and stated: "Involved in a car accident. Was protecting small sister off the bus away from the road when he got hit in the back by a bus travelling at 50-60km/hr. No LOC and got up and walked immediately. Was told by bus driver to sit down. Ambulance crew came and laid him down flat with a neck collar. Been complaining on (sic) upper back pains since. No neck, abdominal pains. Primary care at Liverpool - ABCD was normal. Clinicaly (sic) pain in upper back persists. CXR, Neck xray (upper 5 vert), pelvis - all normal." 129The second such note was on page 6 of the notes and stated: "MVA peds Vs car hit from behind by car travelling at 5-60kph fell and landed on back no LOC got up and ran off road sat up while waiting for ambulance put into hard collar" 130The significance of those portions of the notes which I have cited is that they show no inconsistency with the evidence of the plaintiff as to having been struck on the back whilst attempting to rescue his sister from danger. 131The hospital notes record that the plaintiff was complaining of tenderness in the thoracic spine in the region T4-5. A subsequent CT scan of the plaintiff's thoracic spine was arranged and reported on page 8 of the notes as follows: "A CT scan of the thoracic spine from the level of T1 to T7 was performed. There is very minimal anterior wedging of T3 which may be normal or related to a very minimal compression fracture. There is no paraspinal haematoma. The disc spaces are preserved and there is no subluxation." 132Repeat cervical spine x-rays taken in the hospital showed no abnormality. The hospital's plan at discharge was for the plaintiff to be referred to a specialist. 133The plaintiff's family doctor since 12 September 1995 has been Dr Susan Cubas Borges. The defendant tendered a report from Dr Borges addressed to the CTP insurer, Allianz, dated 1 February 2010. In that report, Dr Borges stated that the plaintiff first mentioned the fact of the accident on 5 November 2007 at the time when he had attended at her practice with his mother for a health check, 3 months after the accident, on 8 February 2008. 134Dr Borges took a history that the plaintiff had initially been admitted to Liverpool Hospital but then transferred to the Children's Hospital at Westmead, where he stayed for 2 days between 5 and 7 November 2007. On the occasion of the 8 February consultation, Dr Borges recorded that her examination did not show any abnormalities in the plaintiff. 135Dr Borges had sighted a report from the Children's Hospital, which recorded that the plaintiff had been hit on the back by a motor vehicle. Dr Borges cited the hospital notes as stating the plaintiff had upper back pain, chest pain, tenderness and bruising over the left wrist. It was recorded that he was given morphine for pain relief. It was also recorded that investigations revealed no fractures. It was not stated as to which parts of the plaintiff's body had been x-rayed on that occasion. 136The plaintiff tendered an extract from the progress notes of Dr Borges dated 7 September 2011. Those notes recorded complaints made by the plaintiff of his experience of upper and lower back pain on and off, with pain being present when sitting for a long time: Exhibit "E". Dr Borges noted that the plaintiff had ceased attending school in June 2011 without plans for further study. Those notes indicated that she counselled him extensively on further study and work opportunities. On this occasion Dr Borges ordered diagnostic imaging in the form of x-rays to the thoracic spines for evaluation of the previous anterior wedging found at the level T3. 137There was no evidence tendered or called to identify the results or the interpretation of that imaging. 138The defendant tendered a copy of the clinical file of Dr Borges that was produced on subpoena: Exhibit "4'. The only pages the defendant referred to in that bundle, which comprised the pages I have numbered 1 - 46, were the highlighted portions on pages 9, 11, 14, 16, 17, 21 and 32. 139Respectively, in the order of the identified flagging applied by the defendant, those pages contained information as follows: (a)an entry on 8 February 2008, when Dr Borges made a brief note of the fact of the motor vehicle accident and, where she had noted that the plaintiff was " well now ", and a further entry made on 12 May 2009 which referred to the plaintiff having had an accident at soccer in which he kicked a ball and felt a sudden pain in his anterior right hip, which reportedly involved a fracture of the anterior/inferior right iliac spine without displacement. On this occasion a medical certificate was given for school: page 9; (b)a further entry on 5 November 2009 in the context of a request by the plaintiff's mother for a medical certificate for the plaintiff in respect of the accident on 5 November 2007, for an undisclosed purpose, at which time Dr Borges noted the earlier hospitalisations, her consultation on 8 February 2008, and also noted that the plaintiff had not seen any doctor since his discharge from hospital: page 11; (c)a medical certificate from Dr Borges dated 19 November 2009 which recorded the plaintiff's history concerning the accident and stated that the plaintiff has " no persisting lesions " from the accident: page 14; (d)a copy letter addressed to Dr Borges and dated 29 November 2007 from the surgical registrar at Westmead Children's Hospital stating the fact that the plaintiff had been seen and discharged at that hospital, and noting that on a follow-up appointment on 29 November 2007 the plaintiff was " doing well with no pain or tenderness on the back ", and was given an appointment for follow up in the neurosurgical clinic in the following month. On 29 January 2008 Dr Borges made handwritten comments on that letter stating that the plaintiff had not attended that follow-up hospital appointment. She also made the note to the effect that the plaintiff had not presented to her rooms between the date of his discharge from hospital and the closure of her rooms for the Christmas holidays on 20 December 20[07] until, presumably, 29 January 2008: page 16; (e)a copy of a Children's Hospital out-patient note dated 22 November 2007, in which a Dr Soundappan noted that the CT scan showed a minimal fracture of T3, and that the plaintiff was well on that day, his pain had gone, there was no tenderness, and there was no concern: page 17; (f)a further copy of page 3 of the Westmead Children's Hospital notes comprising the primary survey at triage, noting " no neck pain or c spine tenderness, x-rays only to C$ (sic)": page 21. That note is difficult to interpret because it's timing is not clear and it follows an entry timed at 08:07 on 7 November 2007. A review in the following page 22, which was not flagged by the defendant, which consists of a nursing note entered at 22.07 on 5 November 2007, refers to the plaintiff having had morphine administered to him, which seems to have some relevance as to how the entry on page 3 of those notes should be interpreted; (g)a copy of the letter from Dr Borges dated 13 February 2011, which comprised an unsigned copy of a letter to Brydens, the solicitors for the plaintiff, the original of which had not been tendered: pages 32-33. There were no significant differences between the content of this letter and her previous letter to the insurer dated 1 February 2010, except for the addition of the citation of the results of the thoracic CT scan.

Injuries 140I find that the plaintiff suffered a blow from behind to his thoracic spine. In these events I have accepted there was a possible compression fracture of the level T3, which was the clinical diagnosis made at hospital. 141I find that in these events he fell to his left and onto his left wrist. I find that as a result of the accident the plaintiff sustained multiple bruising, grazes and cuts to his limbs, and he experienced chest pain. He also experienced significant pain and discomfort associated with those injuries. However, as no assessment of non-economic damages is required in this case, it is not necessary to further describe the nature and extent of the plaintiff's injuries.

Subsequent soccer injury 142On 8 May 2009 the plaintiff suffered an injury to his right hip when he mis-kicked a soccer ball, causing an avulsion fracture to some structures of his right hip. This involved an undisplaced fracture of the anterior interior iliac spine, following a " snap " feeling he experienced at that time. The defendant argued that this evidence cast doubt upon the plaintiff's evidence of inability to resume playing sport. 143In my view that submission overstated the true position. I accept the evidence of the plaintiff that after the accident he remained away from playing soccer for a year, and on resumption this caused him to experience pain. He then had intermittent time away from playing soccer. I accept the evidence of the plaintiff that he sustained the right hip injury in 2009 after an attempted return to soccer after a long absence. The plaintiff said, and I accept, that after not playing soccer for " that year ", he " then went to play that's when [his] hip fractured ". The interval of time between the motor vehicle accident and the soccer ball injury was about 18 months. He has not played soccer since his right hip injury.

Medical reviews of the plaintiff 144On 3 June 2010, at the request of his solicitor, the plaintiff was examined and assessed by Dr Peter Conrad, a consultant surgeon. The assessment made by Dr Conrad was to the effect that on the basis of the plaintiff's history of ongoing problems of pain, discomfort, restriction of movement of the thoracolumbar spines, including difficulty sitting or standing for prolonged periods, or performing repetitive lifting or bending, viewed against a history of a T3 compression fracture, those reported problems were permanent but stable. Dr Conrad was of the opinion that the plaintiff would be precluded from doing heavy labouring or similar work, and would be restricted to work in sedentary occupations where he is able to sit or stand at will and not lift weights of more than 5kgs, or heavy repetitive lifting or bending. 145On 22 June 2011, at the request of his solicitors, the plaintiff was examined and assessed by Dr James Bodel, a consultant orthopaedic surgeon. The assessment made by Dr Bodel was based upon a broadly similar history, but he noted that the plaintiff's upper back stiffness was aggravated by rotational or twisting movements. He also noted the presence of lower back pain and cramping in the thighs. Dr Bodel thought the plaintiff's prognosis was quite good, and that he should be able to tolerate light to moderate manual tasks in his working career with this type of injury. 146On 26 September 2011 Dr Bodel issued a supplementary report following his examination of x-rays taken of the plaintiff's thoracic and lumbar spines on 21 September 2011. That report was concerned only with the 21 September 2011 x-rays, and stated: " X-ray thoracic spine The previous CT is not available for correlation. There is minimal scoliosis convexed to the left. The spinal alignment otherwise appears normal with no subluxation or fracture. There is no significant wedging of the vertebral bodies. Early degenerative change is noted in the lower thoracic spine with small end plate osteophytes. The intervertebral discs appear normal. No other bony abnormality noted. X-ray lumbar spine There is mild scoliosis convexed to the right. The spinal alignment otherwise appears normal with no subluxation or fracture. There is minimal narrowing of the L5/S1 disc. There are sclerotic changes overlying the sacroiliac joints bilaterally suggestive of sacroiliitis. No other significant abnormality noted. The report of the x-rays of the thoracic spine therefore shows no definite evidence of fracture particularly in the upper thoracic region at T3. I have seen the films and I agree with that interpretation of these films. There is really no significant abnormality seen on these two sets of films. In light of this finding it is unlikely that a wedge compression fracture of any significance has occurred at the T3 level. He does, however, have asymmetry of movement in the upper thoracic region which is consistent with the injury and he therefore has the DRE Thoracolumbar Category II rating that I have identified in my supplementary report on 22 June 2011. He has the 5% Whole Person Impairment rating on the basis of the asymmetry of movement (dysmetria) whether there was a fracture at T3 or note (sic). The current x-rays that I have viewed do not show any evidence of a T3 vertebral body fracture." 147The issue of whether the plaintiff actually had a compression fracture of T3 is not critical. The important point is that this area was injured, it was asymptomatic before the accident and has become symptomatic since. This is a matter of some significance where the x-rays have been interpreted as showing degenerative changes in one so young. 148On 24 November 2011, at the request of the solicitor for the defendant, the plaintiff was examined and assessed by Associate Professor Michael Ryan, a consultant orthopaedic surgeon. The assessment made by Associate Professor Ryan was that on physical palpation, the plaintiff had pain in his thoracic region and in his rib cage. Associate Professor Ryan considered some undated x-rays which were interpreted as showing minimal anterior wedging of T3 which may be normal or related to a very minimal compression fracture. He was of the opinion that the plaintiff had made an uneventful recovery from his injuries. 149Associate Professor Ryan concluded that he could not identify any diagnosis referrable to the motor vehicle accident, and that the plaintiff's condition was stable at the time of his assessment. He did not identify anything arising from the motor vehicle accident that would serve to inhibit or restrict the plaintiff's occupational pursuits, which he did not define. He stated that if there were any such disability, it would arise from the effects of the 2009 soccer injury the plaintiff suffered on 8 May 2009, and which resulted in an avulsion of the anterior inferior iliac spine, which is the origin of the right rectus femoris muscle/tendon. 150There were no later medical assessments or allied assessment of the plaintiff's medical condition for the purpose of determining the ongoing problems, if any that flowed from the accident.

Disabilities that remain 151The following summary draws upon the plaintiff's oral evidence and the summaries of his disabilities as recounted by medical experts who examined him after taking a history from him: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25. 152The plaintiff continues to have ongoing pain, discomfort and restriction of movement in his thoraco-lumbar spine. He finds it difficult to stand or sit for long periods of time or to perform repetitive lifting and bending. He has found that on prolonged sitting he experiences " twitches " in his back, which requires that he get up and move about in order to relieve this sensation. He also finds it difficult to run, as this brings on back pain. His back pain is also associated with stiffness, and a medical examiner has observed paravertebral muscle spasm at a time when the plaintiff's back pain was associated with tenderness in the thoracic spine. 153The plaintiff's back pain and stiffness is aggravated by activities such as when bending, twisting or rotation of the thoracic spine, and he has restricted rotation to the left. He also gets occasional cramping in the thighs. The plaintiff's back pain is episodic in that it varies in intensity, and it is dependent upon the nature and the level of his activities. 154Once the plaintiff's back pain occurs, it remains with him for days, and he requires medication to relieve it. He receives occasional back massages from his mother to assist in relieving the effects of the pain and the feeling of hardness in his back, which may be a reference to muscle spasm. He carries out a form of stretching exercise to relieve the pain but it stays with him and he has to " deal with it ". I accept that these complaints are ongoing. I have accepted the opinions of Dr Conrad and Dr Bodel in preference to the opinions of Associate Professor Ryan for the reasons I have earlier identified. I therefore accept that the plaintiff's complaints as summarised above are ongoing. 155As there is no claim for non-economic loss, I will defer analysing the effects of the plaintiff's 2009 soccer injury in terms of any ongoing disabilities that might flow from that injury. I will give consideration to those effects in connection with my findings on the issue of future loss of earning capacity at paragraphs [198] to [235] of my reasons.

Mitigation 156It is a requirement that the plaintiff must have mitigated his damage: s 136 MAC Act . There is no suggestion that the plaintiff has failed to seek out appropriate treatment for his problems. Whilst there may have been some scope for arguing that his lack of employment to date since leaving school has been due to insufficient effort on his part possibly evidenced by Dr Borges giving him extensive counselling on further study and work opportunities, as stated in Exhibit "E", since there is no claim for past loss of earning capacity, the issue does not require further consideration, and was not canvassed in detail in the evidence.

Findings concerning negligence 157Essentially, the plaintiff claimed that the defendant had been negligent for having driven at an excessive speed in the circumstances; having failed to heed the presence of the plaintiff; having failed to brake or slow down; having failed to sound a warning and for having failed to take appropriate evasive action. 158It is beyond argument that a reasonable driver must exercise care so as to be able to control the speed and direction of travel of the vehicle in such a way that such a driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events: Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228, at [12]. In the context of this case, that duty extends to observing and noting the presence of school students at or near a bus stop. 159The duty owed includes the need to anticipate that persons such as pedestrians might, with reasonable foreseeability, behave unpredictably, and place themselves in a position where their own safety might be at risk as a result of their inadvertence or negligence. 160This and other statements along those lines from numerous authorities were considered and reviewed by McColl JA in Mobbs v Kain [2009] NSWCA 301, at [58]-[90]; for example, Stocks v Baldwin (1996) 24 MVR 416, McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306; Clarke v Freund [1999] NSWCA 197; Rowe's Bus Service v Cowan [1999] NSWCA 268. 161In Mobbs v Kain , at [71]-[77], McColl JA also reviewed and considered the remarks of the High Court in Derrick v Cheung [2001] HCA 48, citing a distinguishing feature of that case as being the case of an unattended infant who had darted out in front of a relatively slow moving vehicle on a busy road rendering a collision unavoidable. 162In the present case, the relevant elements of the events occurring in the immediate lead-up to the time of the accident were that: the defendant was driving around a sweeping curve in the roadway to the left, at a speed of about 50kph, without taking any steps to reduce her speed, in rain conditions, whilst her vehicle was approaching a stationary bus from behind, not knowing whether it was parked, or was disembarking passengers, knowing that she would have to drive close to the side of the bus as her vehicle drew closer and overtook it, at a time of the day when it was likely that students may be disembarking from such a bus, and someone from amongst such students might imprudently attempt to cross the road in front of the bus whilst it was still parked and possibly disembarking or taking on other passengers, and where a person intending to cross the road in front of the bus in such circumstances may have restricted views of her approaching vehicle. 163In this case the plaintiff had seen, and was able to see the defendant's vehicle. This was the fact which prompted him to go to his sister's rescue. 164In my view, for the reasons that follow, when the above combination of elements is viewed prospectively, avoiding hindsight considerations, a compelling conclusion is reached that the defendant was relevantly in breach of her duty of care as a driver, and was therefore negligent in her manner of driving. 165I consider that if the defendant had been driving in a prudent manner, and had been keeping a proper lookout as she drove into the sweeping left curve at that time of the afternoon, she would not only have seen the stationary bus at the bus stop, but she would also have seen the students near the front of the bus either waiting to board the bus, as described by the plaintiff and Miss Stuardo, irrespective of whether flashing lights were being displayed at the rear of the bus. Such observations would not have only have required her to reduce her speed, but also her road position and readiness to take evasive action. 166I consider that the fact that it was raining, and the fact that the bus was stationary at a bus stop at that time of day in the known vicinity of schools and school children, required that the defendant reduce her speed and then drive with greater vigilance and care as to her road position in order to be on the alert for pedestrians who might be tempted to hurry across the road in the rain, as the defendant suggested was the case with the plaintiff. If the defendant had acted with greater vigilance she would have been ready to take prompt evasive action as she approached the bus when preparing to overtake it whilst it was in its stationary position. There is no evidence that she had reduced her speed in response to those circumstances. 167The defendant explained that she did not do these things because she had assumed that the bus was simply parked at the bus stop because of the absence of any display of flashing lights on the bus. 168In my view, the defendant's assumption was an unwarranted one for the time of the day, the rainy conditions and the location of the bus near a bus stop. The fact that the defendant did not make any attempt to slow down her speed in order to take in the approaching scene, and to test her assumption is also significant, and in my view indicative of a failure to take due care by reducing her speed and adjusting her road position with regard to how close she was driving next to the bus. 169These matters, in combination with the fact that in order to overtake the bus the defendant would have to adopt a road position near the centre line on the road whilst she passed in close proximity to the bus, indicated that she should have significantly reduced the speed of her approach. 170In my view, all of these matters are causally relevant because, as can be seen from the fact that at a stated speed of about 50kph, and without prior attempts at reducing her speed, the defendant successfully managed to stop her vehicle in extreme conditions in a distance of about or " perhaps " 2-3 car lengths, including with 2 components of swerving first to the right, and then to the left. 171Whilst neither party introduced any measurement evidence as to the length of the bus or the defendant's vehicle, or the lane and vehicle widths, I consider that the matters identified in the preceding paragraphs give rise to a compelling conclusion that at a lesser speed, or at a distance not so close to the side of the bus, the defendant would have been in a materially better position to stop or take effective evasive action by swerving her vehicle to mediate a materially different outcome. In my view this is a very different and distinguishing position to the " mere speculation " involved in assuming a lesser speed that was critically reviewed in Derrick v Cheung at [13]. 172The foregoing analysis is a different one to the one that might have been applied if it had been the plaintiff's sister who had been struck by the defendant's vehicle as she carelessly crossed the road. Because Miss Stuardo was distracted, and was not looking where she was going, and had she not been rescued by her brother, it would have been difficult for the defendant to avoid a collision with her as she crossed, because as a careless pedestrian, she would probably have kept walking into the defendant's path. 173But that is not the position with the plaintiff's case here. Instead, to rescue his sister, the plaintiff had to reach a point close to the alignment of the bus, about 10 metres away from the front of the bus. As the defendant's vehicle approached the point of the collision with the plaintiff, had she kept a proper lookout, and had earlier seen students at the bus stop, and if she acted in a manner expected of a prudent driver by adjusting her speed and road position, she would have anticipated the possibility of someone attempting to cross the road in front of the bus. In my view, the defendant ought to have adopted that state of vigilance and she ought to have been observing the road in front of the bus as she neared and passed it. 174Had she done this, she would have seen, at a point about 10 metres ahead of the bus and to her left, that not only was Miss Stuardo walking towards a collision course with her vehicle if she did not swerve to the right, but that the plaintiff was moving forward in order to grab his sister, which was another reason for her to swerve to the right, because in that quick time sequence, the defendant may not have appreciated what it was that the plaintiff was in fact trying to achieve. At that time, there was no impediment to her swerving to her right, even if that meant crossing over the broken white dividing line on the roadway. 175Instead, she did not see Miss Stuardo or the plaintiff at all, and she first realised the presence of a pedestrian on the roadway to her left when an impact with the plaintiff had already occurred, thus in my view confirming that she had not kept a proper lookout. It was only then that she swerved, and it was confirmed by her that there was room for her to swerve. This in my view indicates that there was a reasonable opportunity for her to avoid the collision if, with the required degree of vigilance, she had acted earlier, and swerved to her right, including swerving from a slower speed, had she slowed down earlier, as I consider she should have done. 176For the above reasons, I find that the defendant had driven negligently at the time that her vehicle struck the plaintiff.

Findings concerning causation 177In order to prove causation of harm, it is insufficient for the plaintiff to simply show that the collision was caused by negligence. He must also prove, on the balance of probabilities, that the negligence of the defendant was a necessary condition for the occurrence of the harm that he suffered: s 5D and s 5E of the Civil Liability Act 2002. 178Applying those provisions to the facts of this case I am satisfied that the plaintiff has established causation in the required legal sense. 179I consider this to be so because, were it not for the negligence of the defendant in failing to slow down to a lesser speed in recognition of the fact that there was a stationary bus at a bus stop with students in the vicinity, the defendant would have been more vigilant as to what was going on at a point on the roadway about 10 metres in front of the bus. An awareness of that position ought to have been available to her as that scene progressively came into her view as she approached the sweeping curve, and as she was passing the stationary bus. It is noteworthy that the plaintiff's actions in exposing himself to the risk of collision were as a result of him having seen the approach of the defendant's vehicle. This raises the question of why the defendant did not see the plaintiff. 180In the circumstances I have described, the defendant would have been better prepared to safely swerve to her right on seeing the plaintiff, especially if she had been travelling at a lesser speed than about 50kph. 181This is a different circumstance to the one which faced the unsuccessful plaintiff in Mobbs v Kain, where it was held that the failure of the plaintiff to identify a safe alternative speed to the one adopted by the defendant in that case, was one of the reasons that precluded recovery by the plaintiff in those proceedings: per McColl JA, at [109]. 182Unlike the position in that case, here it is simply sufficient to observe that although the evidence did not permit an alternative safe speed to be identified, which if adopted, would have avoided the accident, it was the failure of the defendant to reduce her speed, and her subsequent failure to swerve and take evasive action from a lesser speed and in a timely manner, that tipped the scales in favour of the plaintiff on the consideration of causation. 183This made the described negligence a necessary condition for the harm because a more timely and effective swerve manoeuvre by the defendant, performed from a lesser speed, would have avoided the collision simply because the plaintiff had not embarked upon a collision course with the defendant's vehicle. The plaintiff was not intending to venture further out onto the roadway than he needed to in order to rescue his sister. He was not engaged in the course of crossing the road. Instead, at that point he was in the course of stopping his sister from crossing the road. Therefore, if the defendant had kept a proper lookout and had seen Miss Stuardo and the plaintiff earlier, she would most likely have swerved earlier than before the impact, and would also have probably sounded her horn to warn those on the roadway they were in a position of potential danger form an impending collision. If those events had occurred, then the plaintiff would most probably have not been injured. 184I therefore find that the plaintiff has satisfied the requirement of s 5D and s 5E of he CL Act for proof of causation.

Findings concerning alleged contributory negligence 185In essence, the allegations of contributory negligence raised against the plaintiff concerned an alleged attempt to cross the road at an unsafe place; an alleged failure to keep a proper lookout before or whilst crossing the road when it was unsafe to do so; walking or running into the path of the defendant's vehicle; and contravening Rule 234 of the Australian Road Rules, which relates to crossing at or near pedestrian crossings, for which there was no evidence in this case. 186In my view the defendant has failed to make good any of its allegations of contributory negligence. I have reached this conclusion on several bases. 187The defendant has failed to prove that the plaintiff was actually in the course of attempting to cross the road at the time the accident occurred. Instead, I have found that although the plaintiff had earlier intended to cross the road at or near the point where the accident had occurred, and had probably intended to cross the road in front of the stationary bus some 10 metres from it, he was not actually pursuing that intended course at the time of the accident. He had interrupted that intended course by looking to see if it was safe to proceed, and he obviously decided it was not, so he did not continue with his intended crossing. 188I have found that the only reason the plaintiff was on the roadway at a location that placed him in harm's way of a collision with the defendant's vehicle was that he was attempting to rescue his younger sister from a situation of danger, where she had placed herself in a position of peril of injury. In doing so, the plaintiff acted selflessly and commendably. 189The plaintiff's actions in that regard come within the purview of s 55 - s 58 of the CL Act because they come within the definition of a " good Samaritan ". This is so because he satisfies the criteria of having acted in good faith, without expectation of payment or other reward, and because he went to the assistance of his sister who was at risk of being injured. 190Those provisions apply by force of s 3B(2) of the MAC Act . In conformity with the policy behind that legislation it would be wrong to make a finding of contributory negligence on the plaintiff in those circumstances. 191Whilst it is true that the plaintiff had intended to cross the road at the point near where the accident occurred because he believed that it would take some minutes for the bus to take on the passengers waiting to board, and whilst it is true that such an intended course was an inherently dangerous undertaking which would ordinarily merit a finding of contributory negligence if in fact the plaintiff was embarking on that course at that time and place, it still remains for the defendant to prove that the plaintiff was in fact in the course of crossing the road when the accident occurred. For the reasons I have already identified in my liability findings, the defendant has not established this essential pre-requisite. 192Instead, it is clear that the plaintiff remained in a position on the roadway approximately in line with the driver's side of the bus. He had paused to observe traffic conditions before he completed his crossing. At that point he was not in a particular position of danger for so long as the bus remained stationary, although it was unwise for him to have commenced that course of crossing. However, at that time, as he had not yet taken the further step of moving out onto the roadway, and into the line of travel of vehicles such as the one being driven by the defendant, it cannot be reasonably said he was embarking upon a course of conduct that placed him in danger of injury, so as to attract a finding of contributory negligence. 193At the time, the plaintiff's main options were to either wait there until the defendant's vehicle had passed, or alternatively to return to the kerb and wait for the bus to eventually move away, in order to provide him with a clearer view of the area where he intended to cross before he proceeded to embark upon that crossing. A further option might have been to return to the kerb and choose a different crossing point further to the east of the bus. 194It appears to me that the plaintiff was taking the first option of waiting, which does not of itself amount to perfected contributory negligence. What then changed the position were the actions of his sister, in walking further out onto the roadway, thereby placing herself at risk of a collision, which then compelled the plaintiff to go to her rescue. In my view, the plaintiff's reaction to those circumstances does not attract a finding of contributory negligence. 195If, contrary to my findings, it was found that the plaintiff had in fact been engaged in the course of crossing the road at the time of the impact with the defendant's vehicle, this would necessarily constitute a significant departure from the duty to take care for his own safety. It would also necessarily mandate a contributory negligence finding against the plaintiff. If that were the case, in my view, in balancing the respective culpabilities in such circumstances, they would have to be assessed as being equal, and such contributory negligence would have to be apportioned as being 50 per cent responsibility for both the plaintiff and for the defendant.

Assessment of damages 196In the paragraphs that follow, after identifying the plaintiff's remaining probable or statistical life span, I set out my assessment of the heads of damage claimed by the plaintiff in these proceedings. 197As the plaintiff's problems did not satisfy the whole person assessment criteria as required by s 132(1) of the MAC Act , he is not entitled to an award of damages for non-economic loss for his pain, suffering, and his loss of enjoyment and amenity of his life. At age almost 18 years, in the absence of any evidence that suggests a shortened life span, the plaintiff's median statistical life expectancy is for 70 remaining years, and the 5% multiplier for this is 1034.3.

Future loss of earning capacity 198The plaintiff identified a claim for an economic buffer in the amount of $150,000 for compensation for his loss of earning capacity. In contrast, the defendant submitted that no sum should be awarded for this claimed head of damage. 199The evidence given by the plaintiff that touched upon the issue of future loss of earning capacity was that he was not academically inclined, and before his accident, that he thought he wanted to be a carpenter and wanted to be involved in construction work. His reason for this was that he liked woodwork and the related tasks. He had been undertaking studies in that subject since Year 7 at high school as part of his industrial technology course work, and this was the subject he enjoyed the most. 200Following the accident, on his return to school after a relatively short absence, he took painkilling medication due to his experience of pain. He continued with woodwork at school without apparent difficulty because it did not involve any lifting and similar tasks. The plaintiff's mother explained that she had no part in the plaintiff's decision to leave school, and she felt things might have been different with the continuation of his schooling if she had been in the country when the decision was made by the plaintiff and his father that the plaintiff leave school. 201This had occurred during a period when his mother had to urgently attend to family matters in Chile, and whilst he was under the supervision of his father. The plaintiff said that he left school as he did not like it. The plaintiff has not worked in the previous 7 months in the lead-up to the trial, and there is no claim for past loss of earnings. He is currently receiving social security payments. 202The plaintiff gave evidence that he has decided to undertake a TAFE course in order to train as a hairdresser. That course was due to commence on the third day of the trial of these proceedings. His perception is that although the work of a hairdresser might involve sitting or standing for prolonged periods, he would manage such problems by taking painkilling medication. He has enrolled in the hairdressing course because he feels, realistically in my view, the work of a carpenter involves heavy lifting and similar tasks, and he feels that this would be beyond him. 203The plaintiff's current experience of back pain is that it recurs every few weeks depending upon what he has been doing. For example, if he goes for a run, his back starts to hurt, and the pain stays with him for a while. I have already outlined my findings concerning the plaintiff's ongoing disabilities at paragraphs [151] - [155] of my reasons. 204However, it remains necessary to consider the medical evidence that touches upon the plaintiff's future earning capacity. 205Dr Borges made no comment on the issue of loss of earning capacity. There is no evidence that she had been asked to address that issue. 206Dr Conrad expressed the opinion that the plaintiff's permanent back condition would preclude him from doing any heavy labouring work or similar work. Dr Conrad thought the plaintiff may be able to carry out clerical work, or work involving sales or similar tasks, where he could sit or stand at will. Dr Conrad's view was that the plaintiff should not lift weights of more than 5kgs, or undertake activities involving heavy repetitive lifting or bending. He suggested a structured rehabilitation programme for the plaintiff, which I infer from the context, should be aimed at acclimatising the plaintiff to work tasks within those limits. 207Dr Bodel expressed the view that with the type of injury sustained by the plaintiff, he should be able to tolerate manual tasks in his working career. Dr Bodel did not define the nature of, or limitations upon, those manual tasks. 208Associate Professor Ryan was asked to consider whether, within the terms of his specialty, the plaintiff is, or will be, capable of any form of employment. His response to the question asked of him was in the following terms: "If anything inhibits Mr Stuardo or limits him in occupational pursuits, it is likely to arise from the injury he suffered playing soccer, an injury he suffered on the 7 May 2009, a year and a half following the accident. He avulsed the anterior inferior iliac spine which is the origin of the right rectus femoris. This was managed non-operatively. In the usual course of events in a person of his age, he should make a full recovery from it." 209As none of these medical experts were called to give oral evidence, their reasoning on the question of the plaintiff's future earning capacity requires evaluation based upon the contents of the reports alone, without explanatory evidence. 210In that regard, I have concluded that the report of Dr Borges is non-contributory on the issue of future loss of earning capacity. 211I have also concluded that the terms of Dr Bodel's response to the earning capacity question asked of him implies that the plaintiff is in fact likely to encounter some difficulty with manual work. Dr Bodel has used the expression that the plaintiff could " tolerate moderate manual tasks ". In this context, in my view, that phrase implies a degree of difficulty or discomfort, will be experienced by the plaintiff with some types of manual work. 212Insofar as Dr Bodel has restricted his comments to moderate manual tasks, I consider this implicitly excludes the more strenuous types of unskilled manual work that could generally be expected of young men such as the plaintiff who were otherwise healthy, and who were at the beginning of their working lives. I therefore read Dr Bodel's report as providing a supporting basis for the plaintiff's claim for loss of earning capacity involving non-moderate manual tasks. 213It is clear from the report of Dr Conrad, that it is also supportive of the plaintiff's claim for loss of earning capacity. 214It is therefore necessary to weigh this array of opinions that support a claim by the plaintiff for future loss of earning capacity with the opinion expressed by Associate Professor Ryan, which implies a contrary position. 215The way in which I interpret Associate Professor Ryan's opinion on the issue at hand, is that his use of the prefatory expression " If anything " in the passage I have cited at paragraph [ 149 ], in conjunction with reference to the 2009 soccer injury sustained by the plaintiff, connotes that whilst there may be some ongoing effects of the 2007 accident impacting upon the plaintiff's future earning capacity, any such effects would be completely overshadowed by the effects of that later injury. However, the justification for that interpretation is unclear and not the only one available on an analysis of the report of Associate Professor Ryan. 216The difficulty with Associate Professor Ryan's opinion in that regard is that when his report is examined to identify the historical basis for his opinion, that basis is plainly absent from the structure of his report. His report dealt with the history of the plaintiff being injured, followed by an expressed conclusion that the plaintiff " made an uneventful recovery from his injuries and returned to playing soccer ". 217In that context, there was no reported exploration of the plaintiff's current symptoms, either as being present or absent. Associate Professor Ryan's report dealt with current treatment, which by inference related to the effects of the soccer injury leaving the plaintiff with pelvic or hip pain, a description of the plaintiff's current activities, the results of his physical examination of the plaintiff, a review of recent imaging, and responses to specific questions that the solicitor for the defendant had asked Associate Professor Ryan to address. 218It is clear from the structure and content of the report of Associate Professor Ryan, that he has not included any summary of the plaintiff's present complaints as a result of the accident, such as concerning back pain recurring every few weeks depending upon specific activity. In my view, this is a matter of significant omission from his consideration of the plaintiff's condition, as the report does not address the complaints related by the plaintiff in his evidence, and it does not reflect the complaints elicited from the plaintiff by the other doctors who have examined him for the purpose of providing reports. There is no explanation for these discrepant summaries of the medical histories. 219This is a matter of some curiosity because Associate Professor Ryan went on to conclude that the plaintiff displayed no signs of exaggeration, embellishment or pain behaviour. This begs the unanswered question of what particular aspects of the plaintiff's pain were being addressed in the report. 220It does not appear from Associate Professor Ryan's report that he was considering the products of a full evaluation of the plaintiff's thoracic spine in the course of his examination. I make this conclusion because of the terms of Associate Professor Ryan's comment that the plaintiff's " body habitus did not allow precise palpation of the upper thoracic spinal process ." I read this phrase as meaning that the plaintiff's thoracic spine was not completely or fully palpated, thus leaving open the possibility that the nature of the examination undertaken by Associate Professor Ryan left scope for the plaintiff's complaints to remain incompletely identified or elicited at this examination. 221Whilst it may be arguable that Associate Professor Ryan was intending to convey the impression that the plaintiff had no complaints of ongoing problems referrable to his thoracic spine, hence his use of the expression " uneventful recovery ", I am not prepared to draw that inference in the absence from within the report, of a specific summary statement of the nature of the plaintiff's ongoing complaints, or alternatively, the inclusion of a statement to the effect that the plaintiff made no ongoing complaints concerning his thoracic spine when questioned, and whether or not that area continued to cause him any pain or limit his activities. 222Having considered these reports from the viewpoint of the claim for loss of earning capacity, I am left unpersuaded that the report of Associate Professor Ryan adequately sums up the position of the plaintiff's future earning capacity. This is because of the limited nature of his reasons to support the opinion he expressed, and because it does not appear that he has considered the plaintiff's history of ongoing upper back problems when forming his views on whether or not the plaintiff suffers any impairment to his earning capacity. 223Instead, I prefer the views of Dr Conrad and Dr Bodel, who have albeit in varying ways, expressed justified and reasoned opinions grounded on their assessments of the plaintiff's ongoing disabilities, to the effect that the plaintiff in fact has restrictions upon the exercise of his future earning capacity, especially with activities involving lifting and bending, and involving the repetitive work that was described by Dr Conrad. 224In my view, these impairments in a young man who has no other skills, and who is at the beginning of his working life, represent significant restrictions that ought to sound in damages for future loss of earning capacity. On the evidence in this case, whilst that incapacity cannot be reasonably assessed by reference to a particular recurring weekly loss for projection, this does not preclude the assessment of an economic buffer to cushion the plaintiff against the adverse impact of his disabilities upon his future earning capacity. I take that view because of the intermittent and recurring nature of the plaintiff's back complaints that result from activity on his part, and which are likely to cause him to suffer financial loss from time to time. 225The provisions of s 126 of the MAC Act apply to this type of damages assessment. That provision requires that I state the assumptions upon which an award of future economic loss is based, including the plaintiff's most likely circumstances but for the injury. Those assumptions are set out in the ensuing paragraphs. 226First, the plaintiff now carries the burden of an intermittently recurring and permanent back condition in the form of pain and discomfort, together with medically advised restrictions concerning his future work activities. This is in contrast to what I consider would have been his most likely circumstances if he had not been injured, namely, an earning capacity unburdened by pain and restrictions. 227Secondly, the permanent and recurring nature of the restrictions that I have accepted as affecting him are matters of great and adverse significance in the case of an almost 18 year old man at the commencement of his working life where all he has to offer in the labour market is his physical ability to carry out manual work, absent any other special skills or any evidence of any likelihood that the plaintiff would have acquired such skills in the near future. 228Thirdly, the work of a carpenter, which the plaintiff reasonably had in mind before the accident, is now closed to him because at times, the nature of that work can be described as being heavy. Furthermore, there are ongoing concerns that the plaintiff's chosen alternative career in hairdressing may give him problems because that work will involve him in working whilst standing and sitting for significant periods of time, these being activities that Dr Conrad has suggested he should avoid. Furthermore, painkilling medication may not be a sufficient help to the plaintiff to manage that work in the long term. This is an adverse vicissitude that impacts upon the defendant in this case. 229Fourthly, there is no acceptable medical evidence that reasonably suggests there is scope for optimism to the effect that the plaintiff's physical disabilities will resolve or lessen so as to enable him to have, and to exercise, an unrestricted earning capacity at any time in the foreseeable future. 230When the above matters are taken into account together with the fact that uninjured, the plaintiff would have been able to sell his labour on the open labour market without restrictions, I consider that a lump sum award of damages is appropriate in the form of an economic buffer of the kind envisaged in State of NSW v Moss [2000] NSWCA 133, and the subsequent decisions in cases which have confirmed and followed that authority. 231In these circumstances I am satisfied that but for the back injury the plaintiff sustained in the motor vehicle accident, he would not have the identified physical restrictions on his earning capacity: s 5D and 5E of the CL Act . 232This leaves the question of the appropriate discretionary amount to be assessed for impairment of earning capacity that is referable to the plaintiff's back injury. I consider that the appropriate amount to be assessed in that regard is the lump sum buffer of $80,000. 233In arriving at that figure I have not ignored the fact that the plaintiff has had another injury, namely to his pelvis, caused by him attempting to kick a soccer ball in 2009. However, I do not consider that injury to be one that either subsumes, obliterates or eclipses the effects of the 2007 injuries sustained by the plaintiff in the motor vehicle accident because the injury from that accident continues to have an ongoing and independent effect on the plaintiff. Instead, I consider that the plaintiff's 2009 injury is a matter that should be regarded as being a vicissitude that has already crystallised, and which should be the subject of an allowance by way of discount. 234I have tested the reasonableness of the amount of $80,000 in the following way. In broad terms, it is the rough equivalent of an amount of a little over $100 per week net, which is a modest proportion of published average net weekly earnings rates projected on the 5 per cent tables over 47 years to the plaintiff's age of 65 years (x 965.1) less a higher than usual discount on account of possible adverse vicissitudes of 20 per cent, noting that one such adverse vicissitude has already come against the plaintiff in the form of his soccer injury sustained in 2009. In identifying that process of testing I emphasise that it is simply a method of testing and not a method of formulating a calculation of loss. 235I therefore assess the plaintiff's damages for future loss of earning capacity in the buffer amount of $80,000 .

Future loss of superannuation 236Essentially, the claim for loss of future superannuation is dependent upon the award for future loss of earning capacity. The conventional approach is to award 11 per cent of the net amount assessed for future loss of earning capacity. In following that approach, I assess the plaintiff's damages for future loss of superannuation benefits in the amount of $8800.

Future treatment expenses 237On behalf of the plaintiff a claim for future treatment expenses was made in the projected amount of $77,250, representing the projection of $75 per week over the plaintiff's remaining probable life span. In contrast, the defendant submitted that the plaintiff's claim as asserted was not justified. The defendant further submitted that no allowance should be made for future treatment expenses. These disparate positions require examination. 238The plaintiff's evidence touching upon the issue of future treatment expenses was somewhat sparse. It was limited to intending to take painkilling medication, receiving back massages from his mother, and following the exercise programme that had been suggested for him. The evidence of the plaintiff's mother on this subject was that when the plaintiff was troubled by back pain, every once in a while he would take medication and she would use massage creams on his back. She estimated that this occurred twice per week. 239The factual basis for justifying this large claim made on behalf of the plaintiff for future treatment expenses is not readily apparent from that evidence. It is therefore necessary to survey the medical evidence touching upon this topic. 240There was nothing from within the material from Dr Borges that served to justify any component of damages for future treatment expenses. 241The report from Associate Professor Ryan, which was commissioned by the defendant, expressed the view that the plaintiff had made an uneventful recovery from his injuries. Associate Professor Ryan was specifically asked to consider the question of whether the plaintiff would require any future treatment of an orthopaedic nature. His response was a simple no answer without accompanying reasons. In examining that report, it could be inferred, although not entirely clear, that Associate Professor Ryan had predicated that opinion on his earlier expressed view that the plaintiff had made an uneventful recovery from his injuries in the motor vehicle accident. 242Dr Bodel, whose report was commissioned by the solicitor for the plaintiff, was also asked to consider the question of whether the plaintiff would need future treatment, and if so, details were sought as to the nature and cost of such possible treatment, including medication. Dr Bodel responded by stating that the only treatment he would recommend would be an exercise programme to strengthen the plaintiff's back and abdominal areas. He did not provide any evidence of the possible cost of fulfilling that recommendation. 243The report of Dr Conrad, which was commissioned by the solicitor for the plaintiff, stated that the condition of the plaintiff's thoracic spine, with the associated symptoms of pain, discomfort and restriction of movement, was stable and permanent. That said, he then went on to express the opinion that at this stage, the plaintiff needed conservative treatment, and may need physiotherapy. He also suggested that the plaintiff should have a structured rehabilitation programme. 244It is apparent from the above summary of my survey of the evidence, that there is simply no justification for the extent of the claim that was put forward on behalf of the plaintiff for future treatment expenses. There was no attempt to define the likely costs of the claim for future treatment expenses by the tender of supporting evidence. 245However, in these circumstances, given that I have accepted the opinion of Dr Conrad, and the underlying evidence of the plaintiff, to the effect that there is an ongoing and permanent back condition that affects the plaintiff, it is appropriate that the plaintiff should be awarded some damages in order to cushion him against the cost of possible treatment he may need over his remaining lifetime, plus some allowance for an initial structured rehabilitation programme. 246At best, the treatment component of the claim is necessarily limited to a recommended exercise programme of indeterminate cost, the possibility of physiotherapy of undefined frequency, duration or cost being required to manage the plaintiff's back pain, and by inference, the cost of occasional pain killing medication of unknown cost. It is also foreseeable that over his lifetime, with a permanent condition affecting his upper back, the plaintiff may need to seek out occasional medical advice. 247In my view, these matters cannot be accurately quantified and therefore justify the assessment of a buffer sum, which I assess in the amount of $3000, which when analysed over the plaintiff's statistical lifespan of 70 years, is the equivalent of an award of a little under $3.00 per week, which seems reasonable in the circumstances. 248To that sum I would add a lump sum allowance of $2000 towards the cost of a short term rehabilitation programme to accommodate the suggestion in that regard made by Dr Conrad. I therefore assess the plaintiff's damages for future treatment expenses in the sum of $5000.

Past out-of-pocket expenses 249On behalf of the plaintiff, a claim for out-of-pocket expenses was initially made in the sum of $1439.50. At the conclusion of the evidence, out-of-pocket expenses were eventually agreed in the sum of $128.40. I therefore assess the plaintiff's damages for out-of-pocket expenses in the buffer sum of $128.40.

Summary of damages assessment 250My assessment of the plaintiff's damages is summarised as follows: (a) Future loss of earning capacity $80,000 (b) Future loss of superannuation $8,800 (c) Future out-of-pocket expenses $5,000 (d) Past out-of-pocket expenses $128.40 Total $93,928.40

Disposition 251The plaintiff has succeeded on all the issues calling for decision and he is therefore entitled to a verdict and judgment in his favour in the assessed amount of $93,928.40.

Costs 252As the plaintiff has succeeded in the proceedings, he is entitled to have his costs paid by the defendant on the ordinary basis, unless otherwise ordered.

Orders 253I make the following orders: (a)I find a verdict for the plaintiff against the defendant in the sum of $93,928.40 ; (b)The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis, unless otherwise entitled; (c)The exhibits may be returned; (d)Liberty to apply on 7 days notice if further orders are required; DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2012