Suzanne Lyons v Clay Fletcher

Defendant's Statement to Police 16Mr Fletcher gave the following version to Police in his ERISP interview, taken in the early hours of 21 September 2007: "Well I left work at 12.36 out at Pure Valley Lamb Abattoirs and I was going to pick my girlfriend fiancée up at her grandmother's place in Crown Street, and I went um via Gunnedah Road to pick her and I got up to the roundabout over the overpass coming up to the overpass and I looked to make sure to see that if my driving lights were off cause I know that you're not allowed to drive with driving lights in town in built up areas and in a matter of seconds I've heard this bang and I've looked up and my windscreen was smashed and I didn't want to stop I didn't in case something was wrong cause of that the place where I was at near being near Coledale um so I kept going and I pulled up to pick my um girlfriend up Tammy and um I rung her up cause she asked me to ring her up when I got up to the front of the house so she could come up cause she's got two little kids and she come up and I said that oh I think I better ring up my mother Marcia Kelly and see what she thinks that I should do and um my mother informed me to go straight over to the police station and tell them my um my um example of what happened when I was driving to pick um my girlfriend my fiancée up, and so I've come over here and I spoke to Constable Bevan and told him what happened ..." (sic)

The Expert Evidence 17The plaintiff's case was opened on the basis of reliance upon four reports of Mr Michael Griffiths, a biomedical and mechanical engineer. There was no challenge to Mr Griffiths' qualifications. His reports raised the following contentions. First, that had the defendant had his lights on high beam he would have been able to detect the plaintiff on the roadway in sufficient time to stop his vehicle before a collision took place. Secondly, had the defendant been looking at the roadway and seen the plaintiff, in the circumstances, a slight deviation of one metre or so to the right would have avoided a collision with her. On this basis the defendant failed to avoid the plaintiff on the roadway. 18The report of Mr Griffiths dated 12 August 2009 referenced a number of documents including Police reports, statements, photographs and medical records pertaining to the plaintiffs' injuries. It also contained a commentary on an investigation carried out on the accident by Detective Senior Constable Phillip Priest, extracts of which were annexed to the report as Appendix A. That document did not set out the qualifications of Detective Senior Constable Priest as a crash investigator, however, it set out the following conclusions (Exhibit B, p 31): "(a) In the early hours of Friday the 21st September 2007 a purple 2005 Ford Falcon sedan, registration AN 58SJ was being driven by a Clay Fletcher in a easterly direction along the Oxley Highway, Tamworth at a speed between 55km/h and 60km/h when the vehicle collided with a female pedestrian. (b) At the time of the collision it was dark, the pedestrian was wearing dark clothing and according to investigating Police who attended the scene, the general collision area was poorly lit. (c) The Falcon headlights both operated to a minimum standard, in that low beam illuminated the roadway ahead for at least 25 metres. (d) Allowing a perception/reaction delay of 2.5 seconds, the Falcon would decelerate to a stop in approximately 58 metres at 55km/h or approximately 65 metres at 60 km/h. (e) Taking into account the calculated total stopping distance of the Falcon (between 58 and 65 metres) as driven by Mr Fletcher, and the minimal distance low beam illuminates (25 metres), it is evident that if Mr Fletcher had seen a pedestrian on the roadway without being inattentive by looking at the dash area of his vehicle, then this incident could still have been an inevitable tragic accident." 19In his commentary on Senior Constable Priest's investigation, Mr Griffiths agreed with the calculations set out above. Mr Griffiths, however, relied on the New South Wales RTA Road Users handbook (a condensed version of the road rules) to contend that "At night time you should be able to stop within the distance you can see. To do this you may need to drive at a speed below the speed limit." In order to be able to stop within the distance he could see, the defendant needed to select either high beam headlights, or slow down to a speed at which he could stop if he saw a hazardous object on the roadway ahead. Had he done so, the defendant would have seen the pedestrian in sufficient time to be able to take successful crash avoidance action. 20In a report dated 20 April 2012 Mr Griffiths recorded that he had received reports of an expert qualified by the defendant, Mr William Keramidas, dated 10 May 2010 and 8 February 2012. He was also provided with good quality colour photocopies of the Police photographs for the first time. Mr Keramidas had proffered an opinion that the defendant had insufficient opportunity to avoid the incident, even if he had been using high beam headlights. That opinion was based on assumptions that the pedestrian was originally situated more than eight metres to the right of the lane in which the vehicle was travelling and that the pedestrian was running towards the lane of travel of the vehicle. On the basis of witness statements provided to him, Mr Griffiths was of the opinion that the evidence did not provide substantiation for a conclusion that the pedestrian commenced approaching the vehicle from a significant distance to the right of the vehicle's path of travel or that the pedestrian was running. In his opinion, the physical evidence of the contact on the front of the car indicated there was no significant left to right or right to left movement of the pedestrian at the time of impact. 21In commenting on Mr Keramidas' report, Mr Griffiths noted that there were large areas of agreement, with a few notable exceptions between the experts. An area of strong disagreement was whether there was movement of the pedestrian in a northerly direction across the vehicle's path. In Mr Griffiths' opinion, the physical evidence did not support that proposition. Mr Griffiths adhered to his initial opinion that if the defendant had been looking ahead, rather than gazing down at the dashboard for several seconds, he should have observed the pedestrian in time to initiate and complete successful crash avoidance action. 22In his subsequent reports dated 17 August 2012 and 29 August 2012 Mr Griffiths comments on a supplementary report prepared by Mr Keramidas dated 30 July 2012. One area of debate not relied on by the plaintiff and therefore not ventilated at trial, was whether items of clothing worn by the plaintiff had a particular reflective quality about it. The clothing was the upper garment and the shoes worn by the plaintiff. Having regard to the areas of damage to the vehicle which established an initial area of contact on the left side of the front of the car, Mr Griffiths was of the opinion that if the defendant had managed to steer/swerve one metre to the right, then he would have avoided frontal impact with the pedestrian. 23In cross-examination Mr Griffiths conceded that the plaintiff would have been able to see a vehicle travelling towards her at night with low beam on from a distance of hundreds of metres. Given a high beam throw of between 70 and 90 metres, he gave this evidence: "Q: So that we can assume that if she is on the road and he's travelling at 50km/h with his low beam on in that 70 metres when he ought to have seen her if the high beam was on, on your hypothesis that she has had to stand pretty much in that general area when the high beam would be for at least five seconds for her to have become visible to him if he had his high beam on? A: Yes." 24Whilst in his first report Mr Griffiths said there was no footpath on either side of the roadway, he clarified that he intended to mean there was no footpath on the northern side of the road. 25Mr Griffiths was also challenged as to his assumption that there was no evidence that the plaintiff was running. That was important because if the plaintiff was in fact running that would have reduced the time available for the defendant to see her, and he conceded that. 26Mr Griffiths gave the following further evidence: "Q: You made the assumption that there would be no evidence that she was running? A: No witness evidence? Q: No witness evidence that she was running. You then have proceeded to prepare your reports on the basis that she was generally about 70 or so metres in front of the vehicle such that if he had his high beam on he could have seen her? A: Yes. Well, well - yeah, I mean, at some point in time the pedestrian was going to be 70-90 ahead of the vehicle as it approached, and what the assumption - or the deduction in that case that I made, is that if the pedestrian had of been there, then they should have been illuminated by the vehicle if it had its lights on high beam. Q: Well, let me come to it, Mr Griffiths - if she'd run across the roadway, at a shallow angle from the right hand side, it is possible she was never going to be 70 metres in front of the vehicle, such that a high beam spread would have illuminated her? That's possible, isn't it? A: Yes. Yeah, if the evidence was that she was running, then that would be the case." 27When asked as to the diagram contained in the plaintiff's personal injuries claim form (Exhibit 5), he gave this evidence: "Q: Again, of course if she'd gone in the direction shown on the diagram and she had run and the defendant had his high beam on, it is entirely possible he just would not have had time to see and avoid her? A: I think that's correct. I mean, Bill Keramidas, I think did some analysis on the basis of that and we are not at odds in terms of our analysis. It's really - the only areas we're at odds is in what you would put into the analysis at the start." 28In respect of the strong area of disagreement between himself and Mr Keramidas identified in paragraph 21 above, Mr Griffiths was asked about areas of other damage, including damage to the number plate. It was put to him that evidence of such impact would lend support to Mr Keramidas' view that there was likely to be some right to left movement. In respect to that, he gave this evidence: "Q: Well, let me put it this way. What the damage; the scuff mark on the bonnet; damage to the windscreen, at best can tell you, is the position of the plaintiff at the point of impact? Not what she was doing in the two or three seconds before, would you agree with that? A: Yes, yes. Yeah, if it's only just a single point - and if you have two very definite points of contact, and then you could, say, draw the line between the two points and say, 'well that's indicative of any lateral motion of the pedestrian at the time of impact'." 29Notwithstanding that evidence, Mr Griffiths disagreed with Mr Keramidas that the damage was indicative of a right to left hand motion, from the defendant's perspective. 30In respect of the hypothesis of Mr Griffiths that one of the things the defendant could have done was to swerve one metre to the right to avoid the plaintiff, he gave this evidence: "Q: But nevertheless, if you were to assume for a moment that she was coming from his right hand side, would you not agree it would be unlikely that he would, whether or not it would be the best thing to do, he would be unlikely to turn to his right? A: I agree with that, yes. Q: Of course he couldn't turn to his left because he was in the very left hand lane, wasn't he? A: That's correct. And it would have been less useful because he just - exposing the other half of the car (sic)." 31Mr William Keramidas prepared three reports on behalf of the defendant dated 10 May 2010, 8 February 2012 and 30 July 2012 (Exhibit 1). In the first of those he was qualified with the Police records and photographs of the scene. In carrying out an Incident Analysis, he concluded that, but for the location of the plaintiff's mobile phone being found in lane 2 for eastbound traffic, a more likely hypothesis was that the impact occurred within lane 1. Mr Keramidas assumed that the plaintiff was being "chased across the roadway by a companion". He calculated her speed across the roadway at a "jogging speed" to be at a rate of 3.8 metres per second and calculated the range of distance traversed by her was between 14.5 metres and 20.5 metres, depending on the angle at which she traversed the roadway (up to 45 degrees). On that basis, it would have taken the plaintiff somewhere between 3.8 seconds and 5.4 seconds to cross from the southern side of Gunnedah Road to the middle of the lane 1 for eastbound traffic. 32In the opinion of Mr Keramidas, unless the pedestrian was "lit up" whilst on the roadway, sufficiently to make her detectable within a range of 30.5 to 66.5 metres, then the defendant could not have avoided the collision. It would have been far easier for the plaintiff to detect the approaching vehicle's headlights from the moment she climbed over the barrier on the southern side of the roadway, and she would have had a continuing view of those headlights as she progressed in a northerly direction across the road. He therefore concludes that the plaintiff was in "a perfect position to avoid the collision right through the several seconds of her travel to the point of collision". On his analysis, the primary factor for the collision remained the unexpected and rapid movement of the plaintiff across the roadway at a location where pedestrian movements were neither expected nor catered for. He concluded that the plaintiff could have aborted her crossing at any time and thereby avoided the collision. 33In his second report dated 8 February 2012, Mr Keramidas responded to the report of Mr Michael Griffiths dated 12 August 2009. That report had referred to investigation of Detective Senior Constable Priest, referred to in paragraph 17 above. Mr Keramidas agreed with the assessment of low beam headlight illumination provided by Constable Priest, and concluded that the plaintiff would have likely entered the beam of the vehicle when the vehicle was approximately 22 metres from the point of impact. Whether the defendant's vehicle was travelling at 40 kph or 60 kph, on his calculations the pedestrian's "time in view would have been shorter than the expected response time of a driver in the circumstances, and therefore a collision between the two would have been inevitable once the pedestrian commenced her motion across the roadway at the point in time and in the manner which she did. The only way the collision could have been avoided would have been for the pedestrian to have altered her progress across the roadway". Mr Keramidas concluded that for the defendant to have had sufficient time to perceive and react to the presence of the pedestrian and bring his vehicle to a halt, he would need to have been travelling at a speed at or below 25kph, which was unrealistic in the circumstances. 34The report of Mr Keramidas dated 30 July 2012 was prepared in response to the supplementary report of Mr Griffiths dated 20 April 2012. This joined issue with Mr Griffiths' hypothesis that the evidence did not suggest any significant movement of the pedestrian to the left or right at the time of impact. On the basis of the entry in the Police records that the plaintiff was being chased across the roadway by Jason Dawson, and having regard to damage on the front of the vehicle, Mr Keramidas adhered to his opinion that there was clearly movement of the pedestrian from right to left from the driver's perspective. Other matters referred to in the report relating to the plaintiff's clothing and disability were not relied on and have been disregarded. 35In respect of Mr Griffiths' hypothesis that the defendant could have avoided the collision with the plaintiff by steering or swerving one metre to the right, Mr Keramidas gave the following evidence in chief: "Q: In that report, I think you know, Mr Griffiths comes to the conclusion that if the driver had managed to steer, or swerve, one metre to the right, then he would have avoided a frontal impact with the pedestrian, do you have a comment? A: Yes, I do. That scenario would hold providing the certain assumptions which necessarily need to be embedded within the whole. First of all, that the pedestrian was within line of sight for a sufficient distance for a manoeuvre to be undertaken, and perhaps most importantly, that there was no movement of the pedestrian from right to left, relative to the driver's position. The reason for that is that when consider driver responses to situations of a moving target, there is a phenomenon known as "Target Following" and that is - Q: I'm sorry, what was that? A: A phenomenon, Your Honour, known as "Target Following" and that is that if an object is moving from your right to left. If you are going to attempt to manoeuvre your vehicle, it's generally to the left. Your eyes follow the target and your movements follow with it. The second and more practical difficulty is that if we were to consider the point in time when the driver needs to decide that the most appropriate avoidance manoeuvre is to steer right, would be in a point of time when the pedestrian was still well to their right. In other words, the driver would need to make a conscious decision that he is going to have to steer towards the pedestrian on the basis that if the pedestrian keeps going, they will move out of his path, a very difficult thing to do." 36Mr Keramidas was asked in cross-examination whether the plaintiff could well have been standing at the point of impact for quite some time. He answered: "A: That wouldn't be consistent with the damage that I see to the vehicle and I understand that Mr Griffiths and I have a difference of opinion there. That doesn't accord with what I see in terms of the damage to the vehicle." 37His analysis of the impact damage to the vehicle, as well as the general injury pattern to the pedestrian, suggested that the speed of the vehicle at collision was between 55kph and 60kph. In respect of the driving lights, he gave this evidence: "Q: A driver paying attention to driving lights being on or off would be able to see, looking through the windscreen, whether they were illuminated or not, wouldn't he? A: They probably should be able to, yes." 38Mr Keremidas confirmed that a primary factor in coming to his opinion was that the plaintiff made an unexpected, and rapid movement across the roadway at a place where pedestrian movements were neither expected nor catered for. 39In respect of the headlights, Mr Keramidas was asked as follows: "Q: Would you agree with this proposition, that the use of high beam by the defendant would have or could have affected the outcome of the collision if in fact, rather than running, the plaintiff was walking across the road? You would have more time to pick her up if so? A: It's actually her relative position to his headlight beams, so if we assume that she is walking at - a normal walking pace is normally given as 1.35 metres per second. We expect a response time in the driver in this circumstance of about 2.2 seconds and we also expect about, say, of 50kph about 14 metres of braking distance. That's about another second, 3.2 seconds. If she's at normal walking pace she would be four and a half/five so that she would be at about the start of lane 2 of the eastbound traffic lane, so she's just crossed over the centre median by the time perception and response would need to start. On high beam she would be picked up at that point. So from high beam, yes, he certainly would be able to stop. Low beam, because she is to his right, the maximum distance there is about 25 metres, so she's effectively going to intercept with that beam so that it would still be hit on low beam. So effectively, I'm just working her back using a normal walking pace rather than running. Q: You don't resile from this proposition, do you, however, that if the pedestrian was walking and wearing even grey coloured clothing, then at detection distance in the order of 100 metres or so the collision was readily avoidable from the driver's perspective? A: Yes, easily. The difference there is that the distinction is that she is in a lighter coloured clothing irrespective of whether there is a single band of light on her, as a silhouette she is going to be picked up in the headlight beam because of the lighter overall contrast of her clothing, and high beam easily 100 metres, so she would be easily avoidable because the driver would be able to respond with that median an emergency response." (sic). 40The plaintiff's case was put to Mr Keremidas in the following terms: "Q: You will recall that at page 15.4 under line 17, you referred to the fact that Mr Griffiths raised the prospect of the collision having been able to be avoided if he, in short, had either activated high beam headlights, or reduced his speed to match the availability visibility distance and in general terms, you agreed with that proposition relating to high beam, that when adjusted for the specifics of this particular case, it's unlikely to have any significant effect in terms of avoidability of the collision, even though the detection distance would be more than double. The specifics of the particular case you were referring to, were they not running, and the fact that the defendant's vehicle was travelling at 5560kph? A: They are two of the factors, and there are others. Q: Is that all you wish to say? A: Yes. Q: But they are the significant factors, aren't they? A: They are two of the significant factors. Q: Just one minute. What are the other significant factors Mr Keramadis? A: The clothing she was wearing."

Findings of Fact 41Having regard to the totality of the evidence, I make the following findings of fact: (1) Gunnedah Road runs in a generally east-west direction and as it approaches the intersection of Duri Road Tamworth, it is elevated so as to pass over a railway line. (2) There is a walkway on the southern side of Gunnedah Road over the railway line. Between that walkway and Gunnedah Road is a barrier. (3) Gunnedah Road is comprised of two lanes travelling in a generally westerly direction, a concrete median strip and then two lanes travelling in a generally easterly direction. Immediately adjacent to the northern most lane, that is for traffic travelling in an easterly direction, is a barrier, and there is no provision for pedestrian access on the northern side of the overpass. (4) The intersection of Gunnedah Road and Duri Road is a roundabout which is well lit at night. Traffic travelling towards Tamworth proceeds through another intersection controlled by a roundabout, some several hundred metres to the west of the intersection with Duri Road and proceeds up an incline to cross the overpass. Whilst there is some street lighting provided on Gunnedah Road between those two roundabouts, on 21 September 2007 it is common ground that at least one of the street lights on the southern side of Gunnedah Road and close to the roundabout marking the intersection of Duri road was not working. (5) The overpass on Gunnedah Road is on the outskirts of Tamworth. Whilst there was some residential development to the west of the overpass, for vehicles travelling across the overpass towards Tamworth it could not be described as a built-up area. (6) On 21 September 2007 at 12.30am the defendant finished his shift at the abattoirs outside Tamworth. He travelled in his vehicle along Gunnedah Road towards Tamworth to pick up his fiancée, who was staying at her grandmother's place in Crown Street Tamworth. When he left the abattoirs, which was not in a residential area, he had his high beam lights illuminated. (7) The vehicle driven by the defendant, in addition to having high beam illumination, had another feature known as driving lights. These were lights placed at the front of the vehicle below the headlights which provided further illumination immediately in front and to the side of the vehicle. It was the defendant's understanding at the time that it was unlawful to drive in built-up areas with these driving lights illuminated. (8) I find that the defendant, as he approached the overpass on Gunnedah Road, heading towards the roundabout at Duri Road, had switched off his high beam lights and was proceeding within the speed limit of 60kp/h. I find on the balance of probabilities that he was driving between 55 and 60 kp/h. (9) I find that as he approached the overpass, travelling east towards Tamworth, the defendant looked down at his dash to check whether the warning light for the driving lights on his vehicle was activated. In doing so, his eyes were diverted from the roadway for a number of seconds. (10) I find that the plaintiff entered the roadway by climbing the barrier between the walkway on the southern side of Gunnedah Road and the first of the west bound lanes. (11) She did so at a place where the roadway was poorly lit, and she was wearing dark clothing. (12) I find that the plaintiff had consumed a number of illicit drugs intravenously during that day, and was well affected by those drugs. (13) I find that the plaintiff, having crossed the barrier between the walkway and Gunnedah Road, proceeded to cross Gunnedah Road in a generally northerly direction at a faster than walking pace, on the balance of probabilities she was jogging across the road. (14) I find that at the point where she entered Gunnedah Road, if she had availed herself of the opportunity, the plaintiff would have had the opportunity to observe the defendant's vehicle proceeding towards her from the west by a distance of well over one hundred metres. (15) I find that the plaintiff proceeded across the two west bound carriageways of Gunnedah road and the median strip, and had crossed the first carriageway for east bound traffic and was in the lane closest to the northern barrier on Gunnedah Road when she was hit by the defendant's vehicle. (16) I find that she was hit by the front of that vehicle, consistent with the damage to it, on the balance of probabilities, first near the number plate and then near the left head light before she was thrown into the left hand side of the windscreen of the vehicle, causing the windscreen to smash. (17) I find that the defendant did not at any time prior to that collision see the plaintiff, or anything else, on the roadway. (18) At the time that the collision occurred, I find that the defendant knew, having seen people on the overpass late at night, that that was a place where people might be seen, even in the early hours of the morning. For example, his very reason for leaving the scene of the collision without stopping was that he was aware that things had been thrown at cars at that particular place by "kids" and because he was on his own and it was the middle of the night, he kept going. (19) I find that on low beam, the headlights on the vehicle driven by the defendant would have illuminated the roadway ahead for at least 25 metres. (20) Further, I find that allowing for a perception reaction delay of 2.5 seconds, a vehicle such as that driven by the defendant, had the driver seen the plaintiff on the roadway, could have been brought to a stop if travelling between 55 and 60 kp/h within approximately 60 metres. (21) I accept the evidence of Mr Dawson that the plaintiff was crossing the road at jogging speed. She was therefore crossing at a rate approximately 3.8 metres per second. I find that she crossed relatively directly from south to north and therefore covered a distance of approximately 15 metres prior to the collision with the defendant's vehicle. I therefore find that it would have taken the plaintiff between four and five seconds to cross from the southern side of Gunnedah Road to the middle of lane 1 for east bound traffic where the collision occurred. (22) I further find that had the defendant illuminated his high beam lights, they would have illuminated the roadway ahead for a distance of between 70 and 90 metres.

Legal Principles 42The driver of a motor vehicle has a duty of care to other road users to keep a proper look out. That duty was explained by the plurality in the High Court in Manley v Alexander (2005) 80 ALJR 413 at 415 in the following terms: "11 ... But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And, much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path. 12 ... But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events." 43In Little v Mackellar [2012] NSWCA 331, Basten JA (with whom Campbell and Barnett JJA agreed) approved of the following passage from the judgment of Mahoney JA in Stocks v Baldwin (1996) 24 MVR 416 at 417: "The use of motor vehicles in the city [and it might be added, the country] creates real dangers: vehicles may strike pedestrians or they may collide with one another. But the fact that such dangers are created and that it is apparent that they exist does not mean that vehicles must be driven and pedestrians must be controlled in such a way that these dangers are entirely removed. The foreseeability of the dangers which motor vehicles create and the degree of proximity that exists between a motorist and a pedestrian together mean that drivers have a duty of care to pedestrians. But that duty of care does not require that drivers drive in such a way or that pedestrians be so controlled that all danger is removed and that no damage can occur."

Determination 44The plaintiff had no recollection of the circumstances in which she was injured, and Mr Jason Dawson was a most unimpressive witness. I accept his evidence to the extent that it confirmed that the plaintiff and himself were well affected by drugs they had taken intravenously during the previous day. His evidence was therefore fairly unreliable, given his concession that he did not know what was going on that evening until he saw the car hit the plaintiff. However, his evidence did confirm that the plaintiff crossed over the barrier from between the walkway and Gunnedah Road and then proceeded to run, albeit at a jogging pace, across the road until she reached the lane closest to the northern barrier when she was struck by the defendant's vehicle. 45The evidence of Ms Dixon was no more impressive than that of Mr Dawson, however, she at least confirmed that the plaintiff was struck whilst in the carriageways for east bound traffic and had walked straight across the road. Her observations however, were made from some distance away from the point where the plaintiff entered onto Gunnedah Road and again, was affected by her ingestion of drugs. 46I prefer the evidence of Mr Keramidas to that of Mr Griffiths in two significant respects. First, I do not accept the opinion of Mr Griffiths that the plaintiff was not moving from south to north immediately before the collision. The evidence supports the fact that she was so moving, at a jogging speed. The physical damage to the vehicle also supports that conclusion. 47Secondly, I do not accept the opinion of Mr Griffiths that one of the things the defendant could have done was to swerve one metre to the right. I rely on his evidence at paragraph 30 above and prefer the evidence of Mr Keramidas set out at paragraph 35 above. 48I do not accept the opinion of Mr Griffiths that as a matter of law, the defendant was required to drive at night so that he would be able to stop within the distance he could see. The defendant has submitted that proposition is wrong in law, relying on South Tweed Heads Rugby League Football Club Ltd v Cole & Anor (2002) 55 NSWLR 113, per Ipp AJA at [61], with whom Heydon JA, as he then was, and Santow JA agreed. I accept that submission. 49The law requires that a driver must take reasonable care to avoid foreseeable injury to other road users. The question to be determined here is whether the defendant breached his duty of care by diverting his gaze from the road ahead and looking at his dash for several seconds, and/or by failing to illuminate his high beam lights as he approached the overpass, and if so, whether that breach or those breaches caused the plaintiff's injuries. 50The defendant has submitted that he did not owe the plaintiff any relevant duty of care. I do not accept that submission. By diverting his gaze from the roadway for a few seconds to his dashboard to check whether his driving lights were illuminated, when there were two alternative methods by which he could check them (by means of the switch on the lever or stalk, or by looking in the immediate vicinity of the road in front of the car), the defendant drove in a manner which meant that he did not "know what was happening in the vicinity of the vehicle in time to take reasonable steps to react to those events" (see, Manley supra at paragraph 42 above). 51The fact that the defendant did not see what he hit, and left the scene not knowing what he hit, establishes that he was paying insufficient regard to the roadway and was in breach of his duty to take reasonable care. 52The plaintiff has not relied on the defendant departing from the scene without stopping as giving rise to an inference of consciousness of guilt on the part of the defendant (eg see Nominal Defendant v Puglisi, High Court of Australia, unreported, 3 August 1984, applying Holloway v McFeeters (1956) 94 CLR 470), and in this case I would not draw such an inference. However, his reason for leaving the scene, i.e. the possibility of the presence of people in the vicinity of Gunnedah Road, underlines the necessity for him to have been alert to their presence on the roadway. 53I therefore find that the defendant breached his duty of care to the plaintiff by failing to keep a proper look-out. 54I do not find that the defendant breached his duty of care to the plaintiff by failing to illuminate his high beam headlights as he was proceeding over the overpass and approaching the intersection of Duri Road. The defendant had passed through a built up or residential area prior to his approach to the overpass. Also, the roundabout at the intersection of Gunnedah Road and Duri Road was well lit, and as he approached it, he was a relatively short distance from it. In those circumstances, there was no obligation for him to have his high beam lights on. The very fact that the defendant was distracted by trying to determine that his driving lights were switched off as he approached a built up area, merely confirms that the overpass was not an area where it was necessary for him to have his high beam lights illuminated. As I have already found that the defendant was not looking at the roadway for a number of seconds, and that the plaintiff came from the southern side of the roadway at a jogging speed, I am not persuaded, on the balance of probabilities, that having the high beam lights illuminated on his vehicle would have enabled the defendant to see the plaintiff in sufficient time to take evasive action in any event. 55The defendant has submitted that even if the defendant did breach his duty of care to the plaintiff by diverting his gaze from the road to his dashboard to check the warning light for his driving lights, such breach was not causative of any injury to the plaintiff. He submitted, "they could only be causative if the view of Mr Griffiths that the defendant would have seen the plaintiff if the defendant's high beam was on and the plaintiff was generally in front of the motor vehicle at a point where the high beam would illuminate for at least 5 seconds (assuming the defendant did not slow down), was accepted". 56The plaintiff had a clear view of the defendant's vehicle for a considerable distance. By entering the roadway and crossing into the path of his vehicle as she did, the plaintiff created the hazard, or "risk of harm", namely, the risk that she would be struck by the defendant's vehicle and injured. The defendant was travelling within the speed limit. I find that, but for his failure to keep a proper look out, he would have seen the plaintiff only after she had entered Gunnedah Road and commenced to cross from the southern side. 57Given that his lights would not have illuminated the southern edge of Gunnedah Road, the defendant would not have had the opportunity to observe the plaintiff until she was well on to the roadway. Further, as there was no pedestrian facility on the northern side of Gunnedah Road immediately to his left, he could not have reasonably been anticipating any pedestrian activity moving from the south side of the road to the northern side. At most, the defendant would have had three seconds or less in which to perceive her on the roadway and respond to that risk. 58Given an average perception time of 2.5 seconds, travelling at 55kp/h the defendant would have had insufficient time in which to respond by braking or controlling his vehicle so as to avoid a collision with the plaintiff. I accept the evidence of Mr Keramidas, as did Mr Griffiths in crossexamination, that it was unlikely that the defendant would steer his vehicle to the right, namely, in the direction from which the plaintiff was running, so as to avoid her. 59Section 5D of the Civil Liability Act 2002 applies to claims for damages for personal injuries arising from motor vehicle accidents (see s 3B(2)). Thus, to determine that the defendant's "negligence" caused the particular harm to the plaintiff (namely her injury) comprises two elements, namely: (a)That the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b)That it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). In making the determination under paragraph (a) above, the "but for" test applies - see Adeels Palace Pty Limited v Moubarak (2009) 239 CLR 420. In the present case, based on the findings I have made, I am not persuaded that but for the defendant's negligence, the defendant caused the plaintiff's injuries. Therefore the plaintiff has not established factual causation in this matter. 60On the balance of probabilities therefore, I am not persuaded that the defendant's breach of his duty of care by failing to keep a proper look out for a few seconds was in this case causative of the plaintiff's injuries. 61There will therefore be a verdict for the defendant.

Contributory Negligence 62If I am wrong in my determination of the question of liability in this case, then I am required to assess the plaintiff's contribution to her own injuries, on the basis that she entered the roadway wearing dark clothing, in the early hours of the morning, at a place where there was no pedestrian access to or egress from a major thoroughfare. I acknowledge the difficulty in doing so, given my finding on liability. The plaintiff had the opportunity to view the approach of the defendant's vehicle from a considerable distance, and was well affected by the ingestion of illicit drugs at the time of the incident. The plaintiff has also conceded that a finding of contributory negligence would be made against her interests, submitting that her contribution to her injuries should be assessed at 25%. The defendant has submitted an assessment of 80%. 63Having regard to all of the circumstances of this matter, I would assess the plaintiff's contribution to her own injuries as being a major contributing factor, outweighing, in this case, the fact that the defendant was driving a vehicle which had potential to cause considerable harm to other road users. The defendant was driving within the speed limit, however, by directing his attention from the road to check his dashboard for the warning light for his driving lights, he failed to have sufficient regard to others who may have been in the vicinity of the roadway. In those circumstances, I find that the plaintiff's contribution to her own injuries would have been assessed at 75%.

Damages 64The plaintiff was taken from the scene of the accident to Tamworth Base Hospital by ambulance. She suffered an epileptic seizure in the ambulance on the way to the hospital. On arrival she was admitted to the intensive care unit suffering the following injuries:

1. Closed head injury.
2. Right haemopneumothorax requiring intercostal drainage.
3. Open fracture of the right upper tibia and fibular with intra articular extension.
4. Closed fracture of the left upper tibia and fibular.
5. Right buttock laceration.
6. Segmental closed fracture of the right humerus.
7. Contusion around the left kidney
8. Fractures of L3 and L5 transverse processors and fracture of the L4 pedicle of the lumbar spine. 65A CT scan of the brain showed no abnormality. Her initial glascow coma scale score was assessed at 7/15 and this dropped to 6/15 at the scene of the accident. In the ambulance her GCS dropped to 5/15 when she was sedated and intubated soon after her arrival in the emergency department. 66The plaintiff suffered retrograde amnesia for approximately one week before her injuries and post-traumatic amnesia of ten days duration following injury, indicative of an extremely severe brain injury. 67The plaintiff underwent the following surgical procedures:
9. 21 September 2007 - debridement of the open wound of her right upper tibia with open reduction and internal fixation using a plate and screws.
10. 23 September 2007 - intramedullary locked nailing of the fracture of the left upper tibia.
11. 23 September 2007 - nailing of the segmenta fracture of the right humerus.
12. 27 March 2008 - exchange intramedullary nailing and bone grafting of the humerus.
13. 13 January 2009 - revision surgery by way of removal of the nail and plating with bone graft and insertion of bone morphogenic protein to the fractured right humerus.
14. 13 January 2009 - removal of plate from right upper tibia and anterior cruciate ligament reconstruction of the right knee as a result of knee instability, secondary to injury.
15. 15 July 2009 - osteotomy of right tibial fracture, extension debridement of scar tissue, insertion of intramedullary nail and bone graft from left iliac crest. Confined to a wheelchair for three months post surgery.
16. 20 July 2010 - removal of distal locking screw of right tibia.
17. 12 October 2010 - removal of right tibial nail and implants, refixation of right upper tibial fracture using bone graft from segment of right fibular. 68The plaintiff has been left with significant neck pain and radicular symptoms into her right arm. She suffers ongoing skin changes of paraesthesia and contraction in her right arm and has a genu valgus deformity of 10% on the right side of her right leg. The plaintiff suffers a 20% malalignment angulation through the upper tibial fracture site of her left leg and has very significant scarring on both lower limbs, with paraesthesia and contraction around the scars. She has been assessed by Dr Hopcroft, general surgeon, as 37% whole person impairment as a result of her physical injuries on 16 December 2009 and more recently, by Dr Monica Ling, as suffering 28% whole person impairment as at 8 June 2011. In respect of her psychological injury, Dr Yungfer, who examined her on 3 March 2010, has diagnosed an adjustment disorder with depressed and anxious mood secondary to her head injury and chronic pain complaints, and assessed a psychiatric impairment amounting to 17% whole person impairment. 69Prior to the accident the plaintiff had a substance abuse disorder, however, this no longer impacts upon her clinical presentation. Dr Yungfer was of the opinion that her presentation "is consistent with someone who sustained a clinically significant head injury, has chronic pain, and difficulties adjusting to those experiences". 70The plaintiff has required a significant amount of nursing care and domestic assistance which has been provided by her husband. They were separated at the time of her injury, and following her injury, he moved back to the matrimonial home to care for her and their three children. One of those children, Russell, had been diagnosed, well before the accident, suffering an attention deficit hyperactivity disorder and was under the care of Dr David McDonald, staff specialist paediatrician at the Paediatric Clinic at Tamworth. He required significant care and supervision which the plaintiff has been unable to provide to him following her injuries. 71The plaintiff has submitted the following schedule of damages: Non-economic loss $325,000.00 Treatment expenses $95,621.00 Future treatment expenses $112,214.00 Past care $87,933.00 Future care $297,680.00 Total $918,448.00

72The defendant's schedule of damages is as follows: Non-economic loss $200,000.00 Past Treatment expenses - agreed at $95,621.84 Future treatment expenses (buffer) $25,000.00 Past domestic assistance Nil Future domestic assistance $98,000.00 Total $418,621.84

73The plaintiff was 33 years at the time of the accident and is now aged 38 years. I find that she has a life expectancy of 50.28 years. I further find that she has suffered very severe injuries which have had a significant impact, and will continue to have a significant impact on all aspects of her daily activities for the rest of her life. Having regard to all of the physical injuries, surgical procedures and continuing disabilities, including instability in her right leg requiring the use of a moon boot and walking stick, together with her chronic pain, scarring and psychological injury, I assess her damages for non-economic loss at $300,000.00 74I note that past treatment expenses are agreed in the sum of $95,621.84 75For future treatment, I note that the plaintiff may require knee replacement (see report of Dr Davis, exhibit C, 22 at pg 9.7) and will require review by general practitioner, orthopaedic surgeon, together with physiotherapy. The plaintiff will also require treatment for her psychological injury and I accept Dr Yungfer's opinion that she will require 20 consultations to assist her with pain management and adjustment to her injuries. I therefore award the following amounts for future treatment: (i) Cost of future surgery for bilateral knee replacements at a cost of $30,000 each, deferred for the right knee for 10 years and for the left knee for 15 years, which I round out to $31,000.00 = $31,000.00 (ii) Cost of ongoing physiotherapy for neck at $20 per week, for a period of five years ($20 x 52 x 5) = $5,200.00 (iii) Review by GP for five years, $7 per week = $1,820.00 (iv) Review by Orthopaedic Surgeon for five years, $5 per week = $1,300.00 (v) Future psychiatric consultations $3,000 = $3,000.00 (vi) I also allow for a rehabilitation program, review by onthotist and podiatrist, and by occupational therapist as recommended by Dr Ling = $10,000.00 Total = $53,320.00

Past Care 76The plaintiff's claim for past care was quantified as follows: Stage 1 - 18 weeks at maximum prescribed rate of $918 per week $16,574.00 Stage 2 - 13 weeks at statutory maximum of $988 per week $12,584.00 Stage 3 - 33 weeks at 8.5 hours per week and 22.80 cents per hour $6,395.00 Stage 4 - 8 weeks at maximum of $916 per week $7,326.00 Stage 5 - 18 weeks at 8.5 hours per week at $22 per hour $3,366.00 Stage 6 - 4 weeks at maximum of $924 per week $3,696.00 Stage 7 - 48 weeks at 8.5 hours per week at $22 per hour $8,976.00 Stage 8 - 2 hours per week at maximum $916 $1,832.00 Stage 9 - 10 weeks at 8.5 hours per week at $22 per hour $1,870.00 Stage 10 - 12 weeks at maximum $916 $10,992.00 Stage 11 - 8.5 per week for six weeks at $22 per hour $1,122.00 Stage 12 - 35 weeks at 8 hours per week at $22 per hour $6,160.00 Stage 13 - From October 2011 to August 2012 - 40 weeks at 8 hours per week at $22 per hour $7,040.00 Total $87,933.00

77In addition, the plaintiff claims pursuant to s 15B of the Civil Liability Act 2002, additional care provided by her husband Jeffrey Walker to supervise and care for their son Russell for one hour per day from the date of accident until August 2011, an amount which equated to 7 hours per week for 256 weeks at $19 per hour, leaving a total of $34,046.00. The plaintiff claimed no further amount beyond August 2011. 78The evidence revealed that the plaintiff's husband, Jeffrey Walker, was on a carer's pension paid by the Commonwealth of Australia. 79The defendant has submitted that the plaintiff's claim for domestic assistance, pursuant to s 141B of MACA, must fail as the care that is being provided to her is not being provided gratuitously as required by that section in that Mr Walker is being paid for the care and that that payment is being made by the government. The defendant further submits that the claim for gratuitous care provided to date should also fail because neither the plaintiff nor her husband gave any detailed evidence as to the hours of domestic assistance provided to her that he would not otherwise have provided. Thus, there was no factual basis for the opinions given by the medical practitioners relied on by the plaintiff. I do not accept either submission. 80The receipt by Mr Walker of a carer's pension is not relevant to the award of gratuitous care damages pursuant to s 141B - (see National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569). The payment of such a pension is entirely irrelevant to the assessment of damages for past care. Further, it is irrelevant whether the Commonwealth will require a repayment of such pension. 81There is ample evidence of the plaintiff's inability to care for her self. First, her own evidence as to her disabilities and her inability to carry out the various household tasks. Secondly, the severity of her multiple injuries, and the absence of any challenge to the opinions of her treating doctors and in particular the opinions of Dr Ling and Ms Wolfgang as to her various needs (I note upon tender of the plaintiff's medical reports no application was made by the defendant to limit the use of the evidence in any respect). I am therefore of the opinion that there is ample evidence that the plaintiff's claim for damages for past care is amply supported by the evidence and that she passes the statutory threshold in respect of such an award of requiring that care for in excess of six months and in excess of six hours per week. 82What is not clear on the evidence is whether part of the plaintiff's claim is duplicated in respect of any of the periods of time when she was hospitalised for the various surgical procedures outlined in paragraph 62 above. I therefore round out the award of damages under this head to the sum of $80,000. 83In respect of the plaintiff's claim for damages pursuant to s 15B of the Civil Liability Act 2002 for the additional care provided by Jeffrey Walker to their son Russell, I would assess the damages pursuant to that section at $34,000.00.

Future Care 84The plaintiff's claim for future care is based on the report of Dr Davis (Exhibit C23) who agreed with the assessment made by the Occupational Therapist, Rebecca Wolfgang, following an assessment of the plaintiff's requirement carried out at her home on 6 May 2010. Dr Davis was of the opinion that Ms Lyons is significantly functionally impaired and unable to withstand any periods of prolonged standing, bending, lifting or carrying and would require assistance with setting up for meals and food preparation, as well as cooking, together with general domestic chores. It was his opinion that the plaintiff would require ongoing care of at least 12 hours per week. Dr Ling (Exhibit C30) was of the opinion that the plaintiff required domestic care into the future of between 6-9 hours per week, together with gardening and home maintenance of between 1-2 hours per fortnight. 85The defendant conceded that there may well be a need for some assistance for heavier household tasks. The defendant therefore submitted that an award of 3 hours of paid domestic assistance should be allowed for the future until the plaintiff achieves 80 years of ages, at which time it was likely that assistance would be needed in any event. Therefore the defendant advocated an award of $98,000.00 for future domestic assistance. 86I do not accept that the plaintiff's claim for future assistance should be restricted to 3 hours per week. To do so would be to grossly under compensate the plaintiff if she was otherwise entitled to damages. The plaintiff has a life expectancy of just over 50 years and I accept that the average cost of commercial assistance, according to the evidence of Ms Wolfgang (Exhibit C29) is $38.50 per hour, and that the average cost of commercial assistance for outside assistance and home maintenance is $47.00 per hour (Exhibit C28). 87The plaintiff calculates the loss for both future commercial domestic assistance together with home gardening and maintenance as a total of $297,680.00. I discount that claim to $250,000, having regard to the fact that such care as would be required would diminish towards the end of her life.

Summary of Assessment of Damages 88I therefore would assess the plaintiff's damages as follows: Non-Economic Loss $300,000.00 Past Treatment Expenses $95,621.84 Future Treatment Expenses $52,320.00 Past Domestic Care $80,000.00 Past Additional Care pursuant to s 15B $34,000.00 Future Care $250,000.00 Total $811,941.84

89I note that the defendant makes a claim for expenses paid by it pursuant to s 83 of MACA and therefore seeks a credit for those payments, but having regard to the orders that I have indicated above, such order is not necessary.

Conclusion 90For the reasons I have expressed above on liability, there will be a verdict for the defendant.

Orders 1.Verdict for the defendant. 2.The plaintiff to pay the defendant's costs. 3.Exhibits to be returned. 4.Parties to have liberty to apply on seven days notice in respect of costs if a special order is to be applied for. 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: 13 November 2012