New South Wales Supreme Court CITATION : Tu Tran v Dos Santos [2008] NSWSC 1216 HEARING DATE(S) : 14-18, 21-24, 28-30 April,1-2 May 2008 JUDGMENT DATE : 20 November 2008 JUDGMENT OF : Smart AJ at 1 DECISION : Defendant held negligent. Plaintiff held contributorily negligent. Stood over for further evidence on limited damages aspects. CATCHWORDS : Motor vehicle accident - plaintiff very severely brain damaged - isues of negligence and contributory negligence - application of agony of moment/emergency principles to both parties - Assessment of Damages in view of plaintiff's condition - non provision of purpose built house - plaintiff unaware of his surroundings or his condition - rehabilitation improbable - limited physiotherapy - future medical care and treatment - limited life expectancy LEGISLATION CITED : Motor Accidents Compensation Act (1999) (NSW) Superannuation Guarantee (Administration) Act (1992) (Cth) CATEGORY : Principal judgment Cortis v Baker [1968] SASR 367 Leishman v Thomas; Hobbs (3rd Party) (1957) 75 WN (NSW) 173 CASES CITED : Medida Pty Ltd v Tobin (NSWCA, 20 December 1995-BC9501776) Nominal Defendant v Rowland-Smith [2003] NSWCA 65 Norris v Blake (No.2) (1997) 41 NSWLR 49 Shelley v Szelley [1971] SASR 430 PARTIES : Tu Tran Maria Dos Santos FILE NUMBER(S) : SC 20210/06 COUNSEL : H.J. Marshall SC and Mr Taylor (P) R.Stitt QC and H.M. Stitt (D) SOLICITORS : Keddies Lawyers (P) Sparke Helmore (D) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SMART AJ Thursday 20 November 2008 20210/06: TU TRAN V MARIA DOS SANTOS JUDGMENT Introduction 1 Tu Tran by his tutor Tam Thanh Tran, the plaintiff's brother, sues Mrs Maria Dos Santos for damages for negligence when on 14 November 2003 a car she was driving on Henry Lawson Drive, Georges Hall, collided with Tu Tran who sustained grievous injuries as a result, including extensive brain damage. It is feared that he will spend the remainder of his life in a bed or a special chair which has many of the characteristics of a bed. He cannot speak nor is there any reasonable prospect that he will be able to do so in the future. He was born on I May 1970. 2 There are substantial issues whether the plaintiff has proved that the defendant was negligent and whether he was guilty of contributory negligence. There are major issues as to whether the plaintiff can be rehabilitated or further rehabilitated, as to the provision that should be made and care provided for him and as to his future life expectancy. 3 The second amended statement of claim (2ASC) contains the following particulars of negligence, amongst others: a) Failed to keep any or proper lookout; b) Failed to keep her motor vehicle under any or any proper control; c) Failed to apply the brakes on her motor vehicle in time to avoid the said collision; d) Failed to steer or control her motor vehicle so as to avoid the said collision; e) Failed to heed the presence of the plaintiff on the roadway; f) Failed to slow or stop her vehicle or swerve to avoid the plaintiff when she first saw the plaintiff and a companion on the roadway; (g) Driving too close to the vehicle in front of her; (this was emphasised in the light of the defendant's statement to the police on the night of the accident); (h) Failed to swerve around the plaintiff. These were elaborated in some further particulars. 4 The defendant denied that she was negligent and contended that any injuries, loss or damage sustained by the plaintiff were due to his own or contributory negligence. She relied on the following particulars: (a) Running on a main road at night whilst there was high speed traffic travelling in both directions; (b) Attempting to flag down fast moving traffic (c) Running on the . roadway whilst his ability to take care for his own safety was affected by his consumption of alcohol and his use of a mobile telephone to call Emergency Services; (d) Placing himself in a position of peril on the roadway when he knew or ought to have known that he was difficult to observe and vehicles were travelling at a speed where they would be unable to stop, swerve or avoid a pedestrian; (e) Failing to heed the risk of running into traffic when he was pursued by an unknown assailant. The Prelude 5 Tu Tran and his friend, Van Le, had met at Campsie early in the afternoon of 14 November 2003. Van Le had driven them in the car of Graham Henderson to Cabramatta. They lunched at Cabramatta leaving the restaurant between about 3.30pm and 4pm. They walked around the area. Subsequently they went to a Club at Canley Vale in the late afternoon: Both were drinking. About 8pm they left; they went to a restaurant and had dinner. They had more to drink. They stayed for more than an hour. After dinner they set out to return to Campsie with Tu Tran driving. They proceeded along Henry Lawson Drive, an arterial road which carried a lot of traffic. At Georges Hall, Henry Lawson Drive passes through some parkland areas. On the eastern side there is the Georges River and a parkland area which includes Kentucky Reserve and on the western side there are the tennis courts known as Coleman Park and a golf course known as Riverwood Golf Course. Of principal concern is that section of Henry Lawson Drive between Haig Avenue and Tower Road. The weather conditions were fine and Henry Lawson Drive was dry. This map (taken from a reproduction of Exh 2) shows the general area. The arrow marks the approximate point where Van Le asserts that he and Tu entered the Kentucky Reserve. Exhibit 2 6 Tu Tran drove the car into Kentucky Reserve shortly prior to reaching Tower Road. According to Mr Van Le, Tu Tran parked the car near the river. Van Le noticed two fishermen. Van Le said that he and Tu Tran talked for about ten minutes. Each went for a short walk. They regathered. Tu Tran did not want to leave for another ten minutes. Van Le said Tu Tran went for another walk and that he (Van Le) went for a walk in the opposite direction. After he had walked about ten metres he heard Tu Tran shouting "Le, Le, Le" and "Help". Van Le said that he rushed to help Tu Tran and saw another male attacking Tran. Van Le said this male was Caucasian, about 40 years old, solid build, 165cm -170cm tall with short hair and wearing a navy blue T-shirt and very short dark coloured shorts. Van Le recalled seeing a truck parked near where their car pulled up. 7 Van Le said that he tried to pull them apart. In the course of the struggle the attacker hit Van Le several times. Van Le felt pain in his left arm. It was later ascertained that it was broken. The attacker ran away but returned a little later holding a weapon that Van Le thought was a knife and continued the fight. 8 Van Le in his statement to the police on 24 November 2003 said that the attacker chased Tu and that Tu ran across (the reserve) to the road and that he (Van Le) followed Tu. In his statement to a police officer at Fairfield Hospital shortly after the accident Van Le said: "7. Tu and I turned around and started running away. We ran out towards the road and ran along the road on the river side. Tu and I then crossed over and I saw the man was chasing us. He was holding a long knife about 30cros long. I was scared because the man had hurt us and I thought he was going to stab us with the knife. I kept running. 8. I was running towards a petrol station near another carpark and Tu was about 10 metres behind me. I could hear him talking on the phone. He was saying, `Help, Help, Help.' He said to me, 'where are we' I said, 'I don't know where'." [This broadly accords as to the conversation with what is recorded on the tape of the 000 call which is set out later] "9. We kept running and then I heard a loud bump. I turned around and saw a car had hit him. 10. I ran back to help Tu and he was laying on the ground. I'm not sure where the other man went." 9 In this version Van Le has telescoped events. He described the events leading up to the accident more fully in his statement of 24 November 2003 to the police. In that statement Van Le said that he ran beside the road on the opposite side to the river, Tu was running on the river side of the road and the assailant was running behind Tu on the river side of the road. They were running in the direction of Cabramatta. Van Le said that Tu crossed to his side of the road and that when he was in the middle of the road he waved his arm to stop a passing car. One car stopped and then it drove away. Van Le said that Tu continued running up the middle of the road and he (Van Le) ran along the side of the road. Van Le said that Tu used his mobile telephone to call the police and was shouting "Help, help, help" whilst he was running on the side of the road. At that time the male with the knife was about 8 to 10 metres behind Tu. Tu was running about 6 or 7 metres behind Van Le. 10 In his oral evidence in chief (T63, II 40-47) Van Le said when he reached Henry Lawson Drive he ran on the side close to the river and Tu was running on the side furthest away from the river. Van Le said that he saw the assailant with the object in his hand and that that man was running on the same side as Tu who was in front. They were running towards Cabramatta. Van Le said that about "halfway" Tu ran to his (Van Le's) side of the road. 11 At T72 Van Le said that the man with the knife or stick - it was night time - was running behind Tu. That man crossed the road. He was about 4-5 metres behind Tu. Van Le said he was roughly level with Tu. 12 In cross-examination (T102) Van Le said that the statement that he ran beside the road on the opposite side to the river and that Tu was running on the river side of the road was not correct. Van Le said that the statement that the man was running behind Tu on the river side of the road was not correct. Van Le said that the statement that the man chased Tu and Tu ran across the road and that he (Van Le) followed him was not true. Van Le insisted that Tu crossed from the river side to the park side. He agreed that he had told the policeman that Tu was in the middle of the road waving his arms at a passing car. Van Le said that Tu had crossed the road to his side and that meant that Tu was running on the side closest to the river when that happened. (T103) 13 Van Le agreed that when he saw the man cross the road to follow Tu that was at the beginning at Kentucky Reserve toward where the fight occurred. The man was on the golf course side chasing Tu. Van Le said that he was running towards Cabramatta and Tu was behind him. 14 Van Le said that it was after Tu crossed from the golf course side to the river side when he tried to flag down a car. Tu and he crossed the road again and it was then that Tu used his mobile phone. Van Le said that they were halfway there (probably, that means halfway between the illuminated petrol station at the corner of Henry Lawson Drive and Rabaul Road at the Cabramatta end of the parkland where Van Le and Tu were heading and a point on Henry Lawson Drive approximately opposite where they had parked the car in Kentucky Reserve). Van Le said that they did not see the assailant when he and Tu were crossing the road or subsequently. They suspected that the assailant was not far away and so they kept running. 15 Mr Nigel Gordon gave evidence that he was driving south along Henry Lawson Drive on his way to Newtown. He saw a man in a yellow shirt (Van Le) roughly in the middle of his lane walking north at about the southern end of the tennis courts. Mr Gordon swerved and avoided Van Le. Mr Gordon said that there was another man on the side of the road. He could not remember which man he saw first. They were roughly walking together. One might have been slightly behind the other. Mr Gordon was unable to say whether the man on the side of the road (presumably the plaintiff) was on the bitumen shoulder or on the adjoining dirt shoulder. He was not in the southbound lane. 16 In her statement to the police dated 14 November 2003 and made to Det Sgt Apolony Mrs Dos Santos, a Ranger, stated she was 31 years of age and had that evening with her husband and two young children, been visiting her sister at Georges Hall. They left about 9.50pm. She gave this account: "4. About 10.OOpm I was driving home along Henry Lawson Drive Georges Hall in our vehicle, registration number NEL-10S, a 1997 Ford Falcon sedan, silver in colour. We were heading in a southerly direction heading towards Canterbury Road to go back to Mortdale. I was driving along doing about 70 k.p.h. There was another vehicle about five to ten metres in front of us. I think it is an 80 k.p.h. zone. 5. I saw two males running along directly in the middle road towards us heading north in our lane. The male in front was stocky build, wearing a yellow jumper, similar to a sloppy joe, beige coloured pants similar to cargo pants and a light coloured cap. The second male behind him was young, medium build wearing some kind of shirt with design on the front. They appeared to be running side by side. I only saw the second males shirt when he it (sic) the windscreen. 6. I was driving along and the car in front swerved to the right and then back to the left into the lane. Within a second I saw the second male standing in the middle of the road. I braked harshly and the next thing this male hit the windscreen on the left passenger side of the car. 7. I stopped straight away and then we moved our car off to the side of the road. ...": Mrs Dos Santos said there was glass everywhere, that the windscreen on the passenger's side was shattered but the window was still together, that a section of the plastic protector shield on the bonnet of the car had been ripped off on the passenger side of the car. 17 The 000 call made by the plaintiff reveals that he telephoned that number at about 2153 hours. I was provided with two versions. One was the audiotape of the telephone call produced by the Police Department. The second version was described as an electronically enhanced version made by a company engaged on behalf of the defendant. The two versions are not identical but they are substantially similar. I was given a transcript by each of the parties to be used as an aide memoire as they were unable to agree on the one transcript. 18 Neither version is easy to follow and I have played and listened to each several times. Counsel correctly told me I would need to do this. The versions require considerable concentration and it is easy to miss words amongst the background noise. It is also necessary to replay the more indistinct parts many times. In some instances I have found the audiotape produced by the police easier to follow than the enhanced version. It contains times whereas the enhanced version does not. It seems that they were deleted in the enhancing as they sometimes coincide with what is being said. There was a dispute as to how much of the tape was intelligible and as to the noises that could be heard and what they represented. There was a further complaint that in the plaintiff's aide-memoire there was a translation of words apparently uttered in a foreign language. I haven't taken these into account as there is sufficient in the words in English to gather what is happening. I have noted where the words in a foreign language have been uttered. I thought that no good purpose would be served in having them formally translated. 19 Both aide-memoires contain numbered lines which often, but not always, correspond. I have summarised what I was able to gather from the tapes, omitting some formal and repeat phrases and material which did not seem to be of relevance. 20 It was common ground that the two tapes constituted the evidence and that the Court would have to do the best it could from the imperfect source materials. From both versions it appeared that when the plaintiff telephoned 000 he told the operator (seemingly from the voice, a lady) that someone wanted to kill him and "they got a knife." There was panic and fear in the plaintiff's voice. The plaintiff told the operator that he just stopped somewhere and they are near him and want to attack him. The operator said to the plaintiff, "Please listen, whereabouts are you?" She repeated, "Where are you?" She said, "What suburb". The plaintiff said, "we don't know ... [unintelligible] ... near the water." She replied, "Sylvania Waters?" The plaintiff answered, "Yes." [This was incorrect] There are some unintelligible portions and some background noise. The plaintiff says "wait" or "wake up Le". There are cries by the plaintiff for help. The plaintiff says "... somebody wanna kill me." 21 The phone cuts out. The operator telephones back and states, "I'm calling back Mr Tan Jan. He's getting chased. Sounds quite gruesome." The operator states, "This is the police. Please tell me where you are." The plaintiff does not do so and is probably unable to do so. The plaintiff again cries for help, asserting, "He got a knife in his hand now." The operator again asks, "Where are you?" The plaintiff replies, "I dunno ... I dunno where we are." The operator asks, "What has happened." The response is unintelligible. The operator states, "I can't understand you." The plaintiff cries, "Help me." The operator asks, "Where are you?" The response is unintelligible. The operator advises the plaintiff, "have a look at a sign." The plaintiff cries, "Please help. Please help". While the plaintiff's further response is hard to ascertain I think it is probably, "he's going to kill me" .The telephone cuts out. The operator telephones the plaintiff and re-establishes contact. 22 Counsel for the plaintiff contends his screaming is detectable on resumption of contact and probably correctly. The operator states, "I cannot understand you, where are you?" The plaintiff asks, "Where are we Le?" The operator asks, "Where are you?" and again "Where are you? Are you on a road?" The plaintiff replies, "He's close". Those words can be heard through the background noise. The operator enquires, "Where are you?" The telephone cuts out. The operator remarks,. "They're in Sydney, the mobile's in Sydney, that narrows it down." The operator telephones the plaintiff and re-establishes contact. He cries, "Help, help." She states, "You need to tell me where you are". He responds, "Can the Police." (Call) He cries, "Help, help." She asks, "Where are you?" His cries can be heard. 23 The operator asks, "Are you on a road?" There are sounds which I would assess as panting or the sounds of a man in distress. The operator next asks, "Are you injured?" There is further panting or distress sounds. There are further requests from the operator, namely, "Where are you?". Between panting the plaintiff says, "Le, Le". The operator asks the plaintiff "What's your name. I want to get the police to help you, whereabouts are you." There is a cry and a sound similar to that of a honking horn. 24 The plaintiff contends that what follows is: (Tyres screeching) and the operator saying "Hello?" (Tyres screeching) and the operator saying "Hello? It sounds like this guy has been run over. Hello." There is a distinctive noise consistent with a car striking a person. 25 The defendant's version is as follows: "[First skidding] [short electronic tone] background noise] [Second skidding] Voice - "Hello?" [Third skidding] ... [background noise] ... [fourth skidding] Voice - "I think this guy's just been run over. Hello?" 26 I doubt if it matters whether the description given is "tyres screeching" or "skidding". I thought I could detect at least three lots of screeching and there could have been more. There were "skid marks" from the defendant's vehicle on Henry Lawson Drive in the southbound lane and the defendant said she braked heavily. There were no skid marks from any other vehicle. 27 The voice in the passage quoted from the defendant's version is that of the operator. 28 What follows according to the defendant is: "Voice - `You fuckin' arsehole. You fuckin' arsehole. What are you walking in the middle of the road for?" (This female voice has not been positively identified) [Unintelligible] [background noise] Voice - "Hello?" (This is the operator's voice) [Background noise] [unintelligible] [Background noise] [unintelligible] Voice - "... guy with a knife ... [unintelligible] ... we run away [background noise]" 29 The plaintiff's version was: Unknown voice - "You fucking asshole. What were you doing on the road" [Heavy moaning] Operator: "Hello?" Unknown voice 2: "Get off the road" Operator: "Hello?" Van Le:"Guy with a knife, we run away [Indistinct background conversation]. 30 It seems that when the plaintiff and Van Le ran from Kentucky Reserve they were heading for the service station at the corner of Rabaul Street and Henry Lawson Drive. That was the nearest established illuminated point where they were likely to be able to obtain help. They had passed it on their way to the entrance to Kentucky Reserve but it was quite some distance back and they had had a lot to drink. Their fear and heightened awareness of the danger would have enabled them to overcome, at least in part, the effects of the liquor consumed. It seems that the plaintiff did not commence using his mobile telephone until he was some distance north of the Kentucky Reserve back along Henry Lawson Drive. While it cannot be stated with accuracy, the plaintiff and Van Le probably engaged in a mixture of running (jogging) and walking. Neither was in a condition to travel quickly on foot. The 000 telephone call began at about 2153 hours and the accident appears to have happened at about 2158 hours. About 21:55:10 the plaintiff cried out for help and stated that his assailant had a knife in his hand. At 21:55:38 the plaintiff sought help and expressed his fear. Throughout 21:56 the plaintiff called for help. At 21:58:30 about 30 seconds after the accident Van Le stated "Guy with a knife, we run away." 31 From the tenor of the telephone call it can be deduced that immediately before the accident the plaintiff was in an emergency situation in serious fear for his life or serious injury from the assailant. Van Le was similarly fearful. It can also be concluded that due to his fear of the assailant and attack the plaintiff was talking to the 000 operator on his mobile phone as he travelled along the road and up to the point of collision. I disagree with the defendant's contention that before the accident occurred the emergency had passed. 32 Although there was some confusion, especially in Mr Van Le's mind about which side of the road he and the plaintiff were on in the earlier stages of their flight, both shortly before and at the time of the accident, they were both on the golf course side of Henry Lawson Drive. 33 Mr Le struck me as a poorly educated and somewhat confused man. He had difficulty in expressing himself and did not seem to relate reasonably to either interpreter. He was far from fluent in English and his understanding and comprehension of English and his ability to speak English were limited. He possessed some, but not a complete and accurate comprehension of what was said to him. His ability to read English was similarly limited. I gathered that Mr Van Le's command of the Vietnamese language was basic. This was apparent from the mutual difficulties which he and the interpreters experienced in their exchanges. This is not an uncommon problem where the witness has had a limited education in his native country. Mr Van Le did not go well in the witness box but there were some aspects of his evidence which I thought were probably correct although at times he seemed to contradict himself and what he had earlier said. 34 At different stages as he and the plaintiff made their way in a northerly direction along Henry Lawson Drive from Kentucky Reserve towards the illuminated Service Station they were on different sides of Henry Lawson Drive. The plaintiff, in particular, was being pursued by the unknown assailant holding an attacking object and was terrified. Van Le was also fearful. 35 At a stage shortly before the accident both Van Le and the plaintiff were on the golf course side of the road. Van Le was slightly ahead of the plaintiff. I am unable to say how far. I doubt if it was 8-10 metres. At the stage when Mr Gordon saw the plaintiff he was on the side of the road. When Mrs Dos Santos first saw the plaintiff she "saw two males running along directly in the middle road towards us." She recalled the male in front wearing a yellow jumper, beige coloured pants and a light coloured cap. She said the second male "behind him was young, medium build" and "they appeared to be running side by side." After referring to the car in front swerving she said, "within a second I saw the second male standing in the middle of the road." 36 For at least three of the five minutes immediately before the accident the plaintiff was being closely pursued by the assailant. At 21:55:10 the plaintiff was crying out for "Help" and stating, "He got a knife". At 21:55:38 the plaintiff seeks help and also at 21:56:18, 21:56:32 and 21:56:38. There is the contemporaneous remark of the operator at 21:55:50, "He's getting chased. Sounds quite gruesome". In my opinion the plaintiff was in imminent danger at 21:56 and confronted with an emergency. 37 I am not surprised that Mr Gordon did not see the assailant. Although Van Le and the plaintiff emerged from the dark into the headlights of Mr Gordon's vehicle, I would have expected the assailant to have made himself scarce (absented himself) once he saw the first glimmer or trace of oncoming headlights. 38 The danger and emergency had continued for a considerable distance and was an ever-present threat. As the assailant was behind the plaintiff I would not reasonably expect the plaintiff and Mr Van Le to be conscious of the exact point at which the assailant ceased his pursuit. 39 About 11.25pm Acting Inspector Sullivan (then Det Sgt Sullivan) led a number of police officers in a crime scene investigation. This involved making a sketch of the accident area and taking a number of measurements. He used light pole T 3529 (shown as T3259 in the police notes) on the eastern side of Henry Lawson Drive as his point of reference. The streetlight on top of this pole was functioning on the night of the accident. This pole was about 12.8 metres from where tyre mark 1 (the nearside tyre mark) of Mrs Dos Santos' car commenced. That tyre mark continued to a point 32.3 metres south of the light pole, that is, it was about 19.5 metres long. Tyre mark 1 was 2.6 metres west of the eastern shoulder of Henry Lawson Drive. Tyre mark 2 (the offside tyre mark) commenced about 13.9 metres south of the light pole and continued to a point about 34.9 metres south of the light pole, that is, it was about 21 metres long. Tyre mark 2 was about 4.2 metres west of the eastern shoulder of Henry Lawson Drive. The tyre marks veered slightly towards the centre line of Henry Lawson Drive. There were overhanging trees along each side of the road. These trees contributed to making the area dark. 40 Det Sgt Sullivan on the evening of the accident estimated the point of impact as being 0.9 m west of the eastern edge lane of Henry Lawson Drive and 32.3 m south of light pole T3529 on the eastern side of Henry Lawson Drive. In selecting that point Det Sullivan was influenced by an area of bloodstain on the dirt shoulder about 33.5 m south of the light pole on the eastern side of Henry Lawson Drive, near the end of the nearside skid mark. 41 The two civil engineers who had studied road accidents and were experienced in accident reconstructions disagreed. Both thought that the point of impact was a little earlier. Mr W Keramidas, a highly qualified and experienced traffic and road accident reconstruction engineer retained by the defendant, prepared a diagram to scale in which he set out the potential range of impact locations being somewhere between 7.7 to 14.8 metres from the start of the skid marks and about 1.1 to 1.25 metres west of the eastern edge line of the southbound lane. He concluded that the impact occurred during the skidding with the likely point of impact being towards the southern end of the range. Mr G Johnston, a well-qualified and experienced traffic and road accident reconstruction engineer, retained by the plaintiff, agreed with the potential range of impact locations but thought that the likely point of impact occurred during the skidding but at a more northerly point. There was no certainty as to the point of impact. It could not be fixed on the balance of probabilities. Both Mr Keramidas and Mr Johnston thought that a speed of roughly 40 kph of the defendant's car when it hit the plaintiff was within the likely available range. Perhaps it was a little more if Mr Johnston's estimate of an earlier point of impact is correct. There was a difference as to how far west of the eastern edge line it occurred but that difference was slight and of no consequence. The Accident Scene 42 Henry Lawson Drive at Georges Hall has one northbound lane and one southbound lane. There is a broken centre line before, after and in the section in which the accident occurred. There is a painted white lane line on either side of the road. There is a bitumen shoulder beyond the painted line. There is a dirt shoulder beyond the bitumen shoulder. Each of the traffic lanes measured about 3.2 metres in width. The sealed shoulders varied but were generally about 1.2 to 1.7 metres on the eastern side and about 0.5 to 1.00 metre in width on the western side. 43 About 18 metres south of the intersection of Rabaul Road and Henry Lawson Drive on the western shoulder of the latter there was an 80 kph speed restriction sign for southbound traffic. A further 24 metres south but on the eastern shoulder of Henry Lawson Drive there was an 80 kph restriction sign for southbound traffic and a 60 kph restriction sign for northbound traffic. Rabaul Road marked the start of the built-up area where a 60kph sign and speed limit could be expected, whereas 80 kph was the speed limit through the parkland/golf course areas. 44 The collision between the defendant's car and the plaintiff occurred on Henry Lawson Drive approximately 5 metres south of the entrance to Coleman Park. 45 Mr Keramidas records that the police field notes contain a notation that the Ford Corsair in which the plaintiff and his companion arrived in the area was located approximately 500 metres from the location. This is much shorter than the distance of 1000 metres suggested by a study of Exhibit 2 as that which the plaintiff and Van Le had jogged/walked along Henry Lawson Drive. 46 The damage to the defendant's 1997 Ford Falcon GLI sedan indicates an impact location between the centre of her vehicle and the nearside, including a windscreen strike towards the nearside third of the vehicle and damage to the nearside external mirror and quarter panels area. 47 Mr Keramidas said that on approach to the incident location from the north and travelling south, the roadway is essentially straight from a point about 300 metres north of the incident location to a point about 85 metres beyond the impact location. Further south there is "a shallow left-hand horizontal bend (for south bound traffic) with about a 550 metre radius. Beyond this bend the roadway straightens again, running past the Riverwood Golf Course. The roadway is essentially flat along this section. Mr Gordon's Evidence 48 Mr Gordon was a scrupulously honest witness. In 2003 he was a catechist at the Anglican Church at Fairfield. As part of his duties he ran a Bible study each Friday night at a home in Birdwood Road, Georges Hall. They usually finished between 9.30pm and 10.30pm. He lived at Newtown. To return home he drove along Haig Avenue and turned left into Henry Lawson Drive. He had no recollection of what time the Bible study concluded on 14 November 2003, but believed it was the normal time. He recalled that the lights at the Haig Avenue corner were red and that he stopped. On the lights changing he turned left and proceeded along Henry Lawson Drive. The river was on his right hand side and the tennis courts of Coleman Park were on his left. He remembered, as he proceeded south, seeing a man in a yellow shirt roughly in the middle of his lane walking north at the southern end of the tennis courts. This was as much as he remembered. Mr Gordon was not able to specify the distance between his car and that man when he first saw him. Mr Gordon could not recall exactly what speed he was travelling at that time. He estimated that he was travelling at more than 50 kph but less than 70 kph. Mr Gordon was a cautious man and had only recently passed the 80kph sign. He was driving a small car, a manual 1991 white Nissan Pulsar - it was not a powerful car and he was not a fast driver. I think that Mr Gordon was probably travelling at little more than 50 kph when he first saw Van Le. 49 Mr Gordon said that there was another man on the side of the road. He could not remember which man he saw first. Mr Gordon said that the men were roughly walking together, one might have been slightly behind the other. As he saw the man (probably the one in the yellow shirt) in front of him he swerved his car to the right into the oncoming lane to drive around him. Mr Gordon's car was not out of control. He did not have to brake. At the point at which he had to move into the northbound lane there were no oncoming vehicles. Mr Gordon returned to the southbound lane after he had safely gone around the man. 50 Mr Gordon said that the tennis court lights were on and that apart from the reflected light from the tennis courts the rest of Henry Lawson Drive stretching out in front of him was dark. As Mr Gordon took the necessary evasive action to avoid colliding with the man in the yellow shirt and swerved around him he was focussing on this man in the south bound lane. 51 Mr Gordon said there was a second man on the side of or off the road on the edge, on the tennis courts side. Mr Gordon distinctly remembered seeing two men; one was off the road and the man in the yellow shirt was not. Mr Gordon could not remember whether the man in the yellow shirt was slightly in front of or slightly behind the other man. Mr Gordon agreed that the man off the road did not play any part in the evasive manoeuvre. 52 Mr Gordon said that after he performed the evasive manoeuvre he was a little rattled and slowed down somewhat. He could not remember to what extent. He continued driving south in his correct lane. 53 Mr. Gordon said that after he was back in the correct lane he looked in his rear vision mirror. As he drove away he said he saw the headlights of more than one car. He was unable to estimate the distance behind his car that these headlights appeared to be but the headlights were not immediately behind him. He continued looking in his rear vision mirror on and off. He could no longer see the man, but a little later he saw what appeared to be a silhouette of a man go up in the air and onto the eastern side of the road. He was unable to be precise as to what time elapsed between seeing the car headlights and seeing the silhouette in the air, but it was not very long - he could not be sure. 54 Mr Gordon said that the man in the yellow shirt came out of the darkness. Mr Gordon's headlights "lit him up". Mr Gordon said that the second man was not in the southbound lane. He could not say whether the second man was on the bitumen edge or the dirt shoulder. Mr Gordon's recollection was that both men were walking. 55 As Mr Gordon gave his evidence he was doing his best to tell the truth and I regarded him as a valuable witness. He was far from dogmatic. His manner was a little diffident. He gave me the impression of being far from certain about times and distances and the finer details of the accident. He was certain about the swerve manoeuvre he undertook and seeing the two men he mentioned. The two men came out of the dark just before the southern edge of the tennis courts. Mr Gordon gave the impressions that he was not able to say how far the nearest headlights were behind him and that it was very quickly after he first saw the headlights of following cars that he saw the silhouette in the air. Mr Haydar Kahla 56 Mr Haydar Kahla (Cahla in the transcript) was driving his Toyota Hi Ace Van about 10pm on 14 November 2003 along Henry Lawson Drive in a northerly direction towards Villawood. It was dark and there were no streetlights. The traffic was light and he had his headlights on low beam. He saw a white car travelling towards him swerve into his lane "just a little bit" for probably seconds and back into its lane. He was not apprehensive that there was going to be an accident. He was unable to state the distance that the white car travelled in the lane carrying northbound traffic nor was he sure how close it was to him. Mr Kahla did not need to apply his van's brakes or swerve. 57 Mr Kahla next saw behind the white car something large and unshaped in the air. At that time he did not know what it was. Mr Kahla said that the swerving car was a little bit in his lane at the moment he saw the object in the air. The swerving car had not passed him when he saw the object. It was still in front of him. Mr Kahla said that after he saw the object in the air he slowed down, approached it, pulled over and noted that it was the body of someone hit by a car. There were other cars behind the swerving car. 58 Mr Kahla was not able to say how close these other cars were to the swerving car. He observed a man on the ground and that he had a friend next to him. Mr Kahla heard the friend, who was wearing a yellow shirt, say that there was a man with a knife chasing him. 59 In his statement to the police on 14 November 2003 Mr Kahla said that he stopped the van and that was when he noticed the man who had been about two metres up in the air and who went straight down on the ground had been hit by the car behind the white car which had swerved. Mr Kahla said that he "looked down the road and saw a silver/grey coloured Ford Fairlane that hit the guy had stopped." Mr Kahla included in his police statement what Van Le had told him at the scene and that Van Le had an injured arm. It was a Ford Falcon rather than a Ford Fairlane. 60 In cross-examination Mr Kahla said that he was not familiar with Henry Lawson Drive and that he was travelling about 60 kph. Mr Kahla said that he did not know how fast the car which swerved into his lane was travelling. He did not see why that car had swerved partially into his lane. He did not see anything on the road to cause that to happen. Mr Kahla agreed that the object in the air appeared pretty quickly, that is in one or two seconds after the swerving car had swerved into Mr Kahla's lane. Mr Kahla also agreed that the whole incident took place over a matter of two or three seconds - it was very quick. 61 Mr Kahla agreed that he did not actually see any car hit anybody. Mr Kahla gave this evidence (T117 - 118): "Q. As I understand it, the sequence of events you're telling us about is this: You were driving on your side of the road? A. Yes. Q. There was traffic ahead of you and behind you? A. Yes. Q. Was there traffic coming towards you as well? A. Yes. Q. And at some point you saw this car swerve? A. Yes. Q. In the way you've described and then shortly thereafter you saw something up in the air? A. Yes. Q. And then you stopped and saw that it was somebody lying on the road; is that the correct sequence? A. That's correct. Q. And you are not able to say, firstly, how far you were from the car that partially swerved into your lane when that happened; that's correct? A. Yeah. Q. You're not able to say how far any car or vehicle was behind you? A. That's correct. Q. And you're not able to say when the actual impact occurred, other than that you saw him up -- A. That's correct. Q. Was he up above the level of the roof of the car that swerved? A. That's correct. Q. So you had a sideline? A. That's correct. " 62 Mr Kahla also tried his best to tell the truth. His evidence points to the plaintiff being struck while the swerving car was "a little bit" into Mr Kahla's lane. At that time the plaintiff was in the air. I accept that everything happened very quickly. I accept that Mr Kahla was not able to estimate the speed at which Mr Gordon was travelling and that he was unable to state the distance that Mr Gordon's car travelled, albeit partially in the lane carrying northbound traffic. Det Sgt Apolony 63 Det Sgt Apolony was called to the scene of the accident in Henry Lawson Drive on 14 November 2003. He noted the two skid marks in the southbound lane starting more or less at the entrance to the tennis courts and running south. At the completion of those skid marks on the eastern side of the kerb on the edge of the road there was an amount of red substance believed to be blood. 64 He took a statement, with the assistance of an interpreter, from Mr Van Le on 24 November 2003 and conducted a police video walk through with Mr Van Le on the next day. 65 At an early stage of their investigation the police treated this matter as potentially involving a criminal offence and that is why he was taking statements. Similarly the video-walk through was performed as part of the criminal investigation into what he regarded as potentially a serious crime. 66 Because the statement of Mrs Dos Santos was not related to the accident but to a criminal investigation her counsel submitted that the Court should 'be wary of attributing weight to it in an accident context. 67 It was apparent from the materials that Kentucky Reserve and the nearby area were used as stopping areas by large trucks and truck drivers. The Competing Contentions 68 The plaintiff contended that the defendant was negligent in that she was travelling too closely behind Mr Gordon's vehicle. Reliance was placed on her statement that she was driving south along Henry Lawson Drive about 70 kph and that there was another vehicle about five to ten metres in front of her vehicle. Thus it was said that she was not travelling a safe distance behind Mr Gordon's vehicle. She was following at a distance too close to the preceding vehicle of Mr Gordon and/or did not react in a timely manner to the appearance of a pedestrian on the roadway. 69 Alternatively, the plaintiff contended that if the Court accepted that Mrs Dos Santos was in error in stating the distance she was travelling behind the preceding vehicle of Mr Gordon as to 5 to 10 metres and she was in fact travelling much further behind Mr Gordon's vehicle the defendant was still negligent in that she did not react in a timely manner to the presence of a pedestrian on the roadway. On this approach she had enough time to avoid an accident by stopping or taking other evasive action. 70 The defendant submitted that, when regard was had to the objective evidence and Mr Gordon's evidence, Mrs Dos Santos must have been travelling a considerable distance behind Mr Gordon's vehicle (about 115 metres or perhaps a little less) and saw the plaintiff in the lane in which she was travelling far too late to avoid hitting him. The defendant relied upon the evidence of its reconstruction engineer whose detailed argument and polished evidence are summarised later. 71 In the meantime I will turn to the evidence of the reconstruction engineer called on behalf of the plaintiff. Mr Grant Johnston 72 Mr Grant Johnston, a civil engineer specialising in transport engineering and engineering construction with post graduate learning and extensive experience in traffic accident investigation who was called by the plaintiff issued his first report in December 2006 having inspected the area in which the accident occurred on the evening of Tuesday 20 December 2005, accompanied by senior counsel and the instructing solicitor, and on the afternoon of 11 October 2006. On this occasion he was assisted by a fellow engineer and a geometric survey was made. His second report was issued in July 2007. 73 For the preparation of his first report Mr Johnston only had certain of the available information and seemed to be under the impression that it was the plaintiff rather than Mr Van Le that Mr Gordon's vehicle (referred to as the "preceding vehicle" in his report) endeavoured to avoid. See too his confirmation at T319 that one of the assumptions on which his December 2006 report proceeded was that the pedestrian around whom Mr Gordon swerved was the plaintiff. Another assumption on which he proceeded in his first report was that the defendant's car was within 10 metres behind Mr Gordon's car. Mr Johnston conceded at T320 that these were the two major premises upon which his conclusions rested and that if these were incorrect his conclusions had to be altered in part. Mr Johnston agreed that in his report of 2 July 2007 he proceeded on the same factual premise, namely that it was Mr Tran around whom Mr Gordon swerved. 74 While Mr Johnston's first report, (the terms of which I have noted), ranges fairly broadly over some of the circumstances of the incident and makes a number of assumptions, he attaches considerable importance to Mrs Dos Santos travelling too close to the preceding vehicle of Mr Gordon and not reacting in a timely manner to the appearance of a pedestrian on the roadway. 75 It was Mr Johnston's contention that motorists should adopt a following distance behind the vehicle in front that allows sufficient space to react and avoid a collision. 76 Mr Johnston referred to the terms of the RTA Guide that, when following another vehicle, a total of three seconds crash avoidance space was needed to react and respond to a situation in front of a driver and that even longer may be needed in darkness. This Guide has remained to the same effect over many years. 77 At the time of his second report Mr Johnston had further information which superseded some of the assumptions he had made in his first report. In his second report Mr Johnston wrote that his conclusions (in his first report) were essentially unchanged. He wrote: "3.5 My conclusions are: Mr Tran was struck at a point 0.9 metres into the southbound lane from the eastern edge line, Mr Tran was likely travelling at a speed less than 3.6 metres/second (13 km/h) given the distance he had travelled, his ability to speak to Police on a telephone and call his companion, and his level of intoxication, Ms Dos Santos approached the point of impact at a speed of around 70 km/h, a short distance after entering the 80 km/h zone from a 60 km/h zone, Ms Dos Santos' vehicle struck Mr Tran whilst braking and travelling at around 40 km/h, A preceding vehicle driven by Mr Nigel Gordon had the ability to detect Mr Tran and veer around him, providing an indication of an imminent hazard to Ms Dos Santos and improving her line of sight to Mr Tran, Mr Keramidas - determination that Ms Dos Santos was travelling around 2.5 seconds behind the preceding vehicle indicates that she was travelling closer than the 3 seconds advised by the Roads and Traffic Authority handbook, The preceding vehicle was likely to be accelerating into the 80 km/h from 60 km/h which should has (sic) resulted in a greater following distance by Ms Dos Santos, If Ms Dos Santos had been travelling at 70 km/h and was at least 3 seconds behind the preceding vehicle, she should have been able to avoid a collision in it's entirety, or struck Mr Tran at a speed of less than 25 km/h thereby greatly minimising his risk of serious head injury by a factor of around three." 78 In his oral evidence in chief Mr Johnston said that assuming a vehicle was travelling at 70 kph the normal allowance for reaction time is 1.5 seconds where there is no warning and that a collision with Mr Tran should have been avoided if she had been able to see him at a distance of 34.2 metres back (T305). This was subsequently amended to 37 metres (T311). 79 Mr Johnston said that on the assumption that as Mr Gordon was proceeding there were two men walking, the leading man was on the roadway and he swerved around him and that Mrs Dos Santos observed the swerve this would have decreased her detection/reaction phase to about one second, but it was impossible to be accurate - there would be a dropping of about half a second for the detection phase 80 Mr Johnston said that the illuminated distance from the driver to an object depends on the reflectivity of the object. With a bright coloured object and light clothing type object generally the research suggests about 70 metres, whereas to a darker object the research generally suggests about 50 metres. 81 Mr Johnston said that if Mrs Dos Santos was following Mr Gordon's car at a distance of 10 metres and his headlights are on low beam and assuming she can physically see an object in his bright clothing on the left hand side of the road in front of Mr Gordon's car, she would have the benefit of the range of 70 metres plus 10. If Mrs Dos Santos were 30 metres behind Mr Gordon's vehicle and there was a bright object, a man in a yellow jacket, that man would be visible at 100 metres if the same assumptions applied, substituting 30 for 10 metres. 82 Mr Johnston expressed these opinions: (a) it would not have been possible for Mrs Dos Santos if she was travelling 10 metres behind Mr Gordon's vehicle to brake sufficiently to avoid hitting the plaintiff or to swerve out of the way (T312). (b) On the assumption that Mrs Dos Santos' vehicle was travelling 30 metres behind Mr Gordon's vehicle it would have been possible to swerve to avoid the plaintiff but not possible to brake in sufficient time to avoid striking him based on 1.5 second reaction time. On a one second reaction time, even if there is not enough time to stop, the speed is likely to be less because of more braking and the injuries less severe (T312-314). 83 Mr Johnston said that he had no knowledge of the detail of Mr Gordon's evidence. He had not heard or seen the transcript of his evidence. Apparently, he had been told that Mr Gordon had given evidence and been asked about the position if the pedestrians were walking. Mr Johnston said he had always worked on the premise that the man wearing the yellow shirt was Mr Van Le. Mr Johnston was asked to assume that Mr Gordon had said, "As I proceeded I remember seeing a man in a yellow shirt roughly in the middle of my lane [the southbound lane of Henry Lawson Drive] near the edge of, at the end of where the tennis courts were" and that the man in the yellow shirt was walking north. 84 Mr Stitt QC put in a fairly full summary, to Mr Johnston the effect of the remainder of Mr Gordon's evidence. 85 On the assumption that Mr Gordon's evidence and the sequence of events were accurate Mr Johnston agreed: a) there was a perception/reaction time by Mr Gordon to perceive the man in the yellow shirt in the middle of the southbound lane, and- 1' seconds; b) ime elapsed to swerve into the right hand lane and then back into the left hand lane, and- 2 to 3 seconds as a range; d) time elapsed as he continued to drive ahead in a southerly direction, and; e) time elapsed for him to look into his rear vision mirror and back to the road, and; f) look back in his rear vision mirror and back to road, and; g) seeing the silhouette indicating the elapse of further time. 86 Mr Johnston agreed as to (c)-(f) there would be a time period. It was difficult to say precisely what that period would have been. Mr Johnston seemed to agree that if all the events were added together they could take 6-8 seconds. I do not accept this exercise. It is theoretical and probably does not represent what happened. 87 Mr Johnston agreed that if the correct sequence of events was as deposed to by Mr Gordon, it was physically impossible for Mrs Dos Santos to have been travelling 10 metres behind Mr Gordon and that it was likely that it was impossible for Mrs Dos Santos to be travelling only 20 metres behind Mr Gordon (T328). 88 Mr Johnston agreed that if you accepted the time estimates of all the sequences mentioned Mrs Dos Santos could have been travelling up to 40 or 50 metres behind Mr Gordon's car (T328). 89 At T329 Mr Johnston was referred to the fifth conclusion of his second report (top p 14) and it was put that it was incorrect to refer to a preceding vehicle driven by Mr Gordon having the ability to detect Mr Tran and veer around him, providing an indication of an imminent hazard to Mrs Dos Santos and improving her line of sight to Mr Tran. Mr Johnston agreed that this conclusion had to be re-worked, especially the reference to Mr Tran. Mr Johnston pointed out that the swerve was still there, the indication of a potential hazard was still there, as was the swerve improving the line of sight. Mr Johnston agreed that the underlying geometry would change. 90 Mr Johnston agreed that if Mrs Dos Santos saw the manoeuvre of Mr Gordon's vehicle and the man with the yellow shirt her attention was likely to be focussed upon the swerving of the vehicle and the object around which it swerved. 91 Mr Johnston agreed that the likely approach speed of the defendant was between 65 and 70 kph approximately (T332). He did not disagree that the likely speed of the defendant at the commencement of the skidding was in the order of 65 kph. It was not quite true to say that the skid mark is not made until the wheels have locked. There is a short period of impending skid which is much lighter. He did not know if the police in this case included the very light portion at the start. Once the deep imprint is left on the ground the wheels are then locked and the car cannot be steered without releasing the locked wheels. 92 The direction the car is heading is the direction in which the vehicle will skid at the point the wheels are locked. The perception/reaction time to elapse involves the application of the brake at a time before the skid marks are laid. This is a short period of time. 93 He did not agree that the distance at which the defendant would need to have been travelling to successfully brake to a halt would be between 62½ and 69.7 metres. He thought she could "stop in shorter than that distance behind" (T333). 94 Mr Johnston agreed that in order to judge the reasonableness of a driver's behaviour these factors would have to be determined: i) the time at which the driver would be able to detect the plaintiff's presence on the road ii) the augmented distance which can be seen with the use of the headlights on the defendant's vehicle does not apply until the car in front moved out of the direct line of sight between the defendant's vehicle and the object iii) the presence of the van in the northbound lane, depending on its position - it could provide a hindrance to Mrs Dos Santos swerving into the northbound lane. 95 Mr Johnston agreed that the line of the skidmarks on the police diagram proceeds in a direction that takes the driver's side wheels almost to the centre line. One possibility is that there was an attempt to swerve but the brakes were locked. There was emergency braking by the defendant. 96 In re-examination Mr Johnston was asked to make the following assumptions: Mrs Dos Santos is travelling at about 70 kph. Mr Van Le is the man in yellow. The plaintiff was about 8-10 metres behind him. Mr Van Le is on the roadway as described by Mr Gordon and Mr Gordon made the manoeuvre described in his evidence. Mrs Dos Santos was focussing on what caused Mr Gordon to make the manoeuvre, that is the environment and the object or objects leading to the manoeuvre. 97 Mr Johnston was asked whether they would make a significant difference in either the time available to Mrs Dos Santos to swerve or brake. Mr Johnston gave this evidence at T340: "A. If the driver was responding to a person on the roadway and that person on the first assumption was the person the car was swerving around, and they were in a certain position, they would have had a certain time before they reached that person to react. If they were then - there was a further person behind them and they were deeper back or further in the environment, then there would obviously be more time elapsed before they reach that person. Everything else being equal, they would obviously take longer before they reach that person, who was further back. Q. In the scenario I've given you, on the assumption that Van Le is in the roadway and the plaintiff is back behind him but perhaps to his left, would the presence of the plaintiff be within that area that you refer to as the "environment" upon which Ms Dos Santos would have been focusing and Mr Gordon makes his manoeuvre? A. That's right." At T341 Mr Johnston continued: "...the environment because it was in the same primary cone of vision. They were still in the same area of the roadway where the person was looking. " Mr Johnston explained what he meant by "cone of vision": "Well, it's 5 degrees and your primary cone of vision, it's larger than your peripheral vision. The distance they were down the roadway, they would have been well within that 5-degree range of vision to the approaching driver. " and "5 degrees off centre of the person's line of sight." Mr Keramidas 98 The defendant relied heavily on the evidence of Mr Keramidas who prepared a detailed report based upon many assumptions provided by the legal representatives of the defendant. While there was material on which the assumptions of Mr Keramidas could be based I am not satisfied as to the accuracy of some of the assumptions. While at some stage or stages on their journey north along Henry Lawson Drive the plaintiff and Le were jogging they also walked for some of the distance and were probably walking when they were observed by Mr Gordon immediately before the accident. I do not discount what can be heard on the tape produced by the Police Department and the enhanced version. The plaintiff may not have been 8 to 10 metres behind Van Le when he and the plaintiff were seen by Mr Gordon and by Mrs Dos Santos. The plaintiff was probably a shorter distance behind Mr Van Le. Mr Gordon said that he saw both men before he commenced to swerve. It is not correct that Mr Gordon did not see a second man until he swerved. Mr Gordon could not say whether the second man was on the gravel shoulder or the bitumen shoulder. 99 It is not correct that the defendant was travelling some distance greater than 30 metres behind Mr Gordon. While Mr Gordon estimated his speed at 50 to 70 kph I think that the probabilities are, given his natural caution and the small/older car he was driving, that he was travelling about a little over 50 kph. Mrs Dos Santos was travelling at about 70 kph and closing on Mr Gordon in her more powerful car. 100 Mr Keramidas was asked to assume that the defendant saw a man with a yellow shirt move from approximately the centre of his lane to the eastern side of Henry Lawson Drive. There is no direct evidence of the defendant seeing Van Le doing so. Nor is this an inference which should be drawn. I am not prepared to speculate as to what the defendant saw. There is no direct evidence that the defendant saw Van Le pass down the passenger side of her vehicle. Nor is this an inference which should be drawn. Again I am not prepared to speculate as to what the defendant saw. What is known is that Van Le was not struck by a motor vehicle and that he says he was running along the side of the road and heard a thump, that is of the plaintiff being hit and that the plaintiff was behind him. An estimate of 4 to 5 meters was given by Van Le (T77 1142 - 43). At T79 (1121-25) Van Le said that he did not see the car hit the plaintiff. 101 Mr Keramidas was asked to assume that "almost immediately thereafter", that is, after the defendant saw Van Le pass down the passenger side of her vehicle, she saw the plaintiff running towards the front of her vehicle in about the middle of her lane in a slightly diagonal direction towards the eastern side of Henry Lawson Drive. 102 There was no direct evidence as to this. Nor should inferences to this effect be drawn. The defendant's statement was that she "saw two males running along directly in the middle road towards us heading north in our lane." She was driving along and saw Mr Gordon's car swerve to the right "and then back to the left into the lane". She asserts that "[w]ithin a second" she saw the second male "standing in the middle of the road." She "braked harshly and the next thing this male hit the windscreen on the left passenger side of the car." 103 Mr Keramidas said that since his report was prepared he had read the transcript of Mr Gordon's evidence. If that evidence was accepted as accurate he thought that none of the assumptions he had been asked to make and set forth on pages 7 and 8 of his report was inconsistent with the evidence of Mr Gordon. Mr Keramidas thought that the assumptions provided somewhat more accuracy. Mr Keramidas referred to Mr Van Le's evidence that the plaintiff was about 8-10 metres behind the man wearing the yellow T-shirt. Mr Keramidas thought that "the positioning of Mrs Dos Santos' vehicle behind him [Gordon] was certainly correct and the other elements as well" (T403). 104 Counsel for the defendant referred Mr Keramidas to and read him substantial portions of Mr Gordon's evidence. Mr Keramidas had a copy of Mr Gordon's evidence and followed it as counsel took him through it. Subsequently (T438) Mr Keramidas agreed in his evidence in chief that some parts of his report needed to be re-assessed if Mr Gordon's evidence was correct. Mr Keramidas adhered to the substance of his conclusions (T442-3). 105 Mr Keramidas said that Mr Gordon's initial observation of seeing the man in the yellow shirt on the roadway accords with his expectation of the potential detection distances which would be available to a driver travelling along this section of the roadway. Mr Keramidas said that Mr Gordon's description of the man emerging from the dark was consistent with what he would expect. Mr Keramidas said that he would have expected the observation of Van Le to have occurred first. This was because of Van Le's bright yellow top, light coloured trousers and cap being far more easily detectable in the headlights. Mr Keramidas said that the range at which he would expect to see someone in that situation would be somewhere between 50 and 70 metres and depended on the precise colouring of that yellow top. Mr Keramidas expected the detection range to exceed 50 metres but it was difficult to estimate by how much. Mr Keramidas said that he did not disagree with Mr Johnston's assessment of a 70 metre visibility distance but thought that would be towards the upper end of the range and that the likely detection distance would be a little less. 106 Because the plaintiff was not wearing bright clothing Mr Keramidas expected that at best the plaintiff would be detectable at a distance of 50 metres or perhaps slightly less. If the plaintiff was 2 or 3 metres to the left of Van Le, Mr Keramidas would expect that the distance at which the plaintiff would be visible to be somewhat less. 107 Mr Keramidas said that-with Mr Gordon having the benefit of a very bright target ahead and that target being potentially detectable at 50-70 metres he would require about 1.5 seconds of perception-reaction time before commencing any manoeuvre. Mr Keramidas thought that Mr Gordon was probably travelling at less than 70 kph and that the expected time it would take to complete the full swerving manoeuvre was about three seconds. He said that at the end there would also be a number of seconds after that to steady up the vehicle, keeping surveillance (looking ahead) rather than immediately seeing an event behind him. Mr Keramidas added: "... perhaps six seconds in total would be the lower end range ...given the perception-reaction-manoeuvre time, straightening up and having that first set of glances [in his rear view mirror] as to how much more than that I can't be certain. It could be six, seven, eight seconds." 108 I accept the evidence of Mr Kahla that the white car (Mr Gordon's) swerved into the northbound lane "just a little bit". This is an important indication of the extent of the swerve taken to avoid Mr Van Le. It was minor. I have not accepted various time estimates associated with the swerve as later explained nor that Mr Gordon first observed the silhouette of the plaintiff in the air some 6 to 8 seconds after he first noticed Mr Van Le. 109 Mr Keramidas said that if it is accepted that the time at which Mr Gordon observed the silhouette in the air was 6 to 8 seconds after he first noticed Mr Van Le then effectively the distance that the defendant's vehicle would have been travelling would be 6 times 70kph; 70 kph equates to about 19.4 metres for each second of travel. Multiplying that by 6, that is about 116 metres. He thought that at the point at which Mr Gordon's vehicle is moving around Mr Van Le is about the time that Mrs Dos Santos' vehicle would be clearing the immediately preceding intersection and coming into that block (T413). This was on the basis of both vehicles travelling at constant speeds. On these factual assumptions Mrs Dos Santos would not have been travelling at 10 metres behind Mr Gordon's car. However, I do not accept those factual assumptions apart from the mathematical calculations. Mr Keramidas stated (at T414) that if Mrs Dos Santos was travelling 10 metres behind Mr Gordon the impact would have occurred prior to Mr Gordon actually recovering the southbound lane, that is, while he was in the process of swerving back into the left-hand lane. 110 Mr Keramidas made the following written observations as to the physical evidence- Skid marks 111 These have a tendency towards the centre of the roadway, contrary to the direction which would have been expected if the vehicle had been travelling directly in line with the path of the roadway. The angle of the skid marks therefore indicates that the driver has attempted an evasive steering manoeuvre to the right prior to and through to the time of the wheels becoming locked. Any steering manoeuvre prior to the commencement of the tyre skid marks would only have an effect up to the wheels locking, after which any additional steering input would not result in the vehicle deviating from its path. 112 The front offside tyre of the Ford Falcon was about 200mm from the centre line at the end of its skidding, that is the vehicle had moved a further half metre towards the centre of the roadway during the skidding process, that is at an angle of just under 1.4 degrees. The total braking distance of the Ford Falcon was about 22.1 metres. 113 Pre-impact skidding was heard in the audiotape of the emergency call suggesting that impact must have been further than 0.9 metres from the edge line suggested by police. Rest position of plaintiff 114 His rest position includes a relative distance from the pole near the termination of the skid marks and a position to the left of the skid marks on the gravel shoulder. This meant that the trajectoryfollowed by the pedestrian during his post-impact motion was to the left of the vehicle which is consistent with an impact having occurred around the nearside corner of the vehicle. Damage to Defendant's Ford Falcon 115 There was some contact near the front nearside corner of the vehicle and an indication of a strike to the windscreen about mid height. The height of the impact strike to the windscreen can be used as a guide to the likely impact speed. 116 Mr Keramidas after making a calculation based on the length of the skid marks, and the application of a mathematical formula, expressed the view that it was quite likely that the vehicle's approach speed was between 65 and 70 kph. He thought that if the defendant's vehicle was travelling at 70 kph braking was likely to have commenced about 3.5 metres further south and would have taken a further 0.2 of a second to achieve. 117 Mr Keramidas stated that he had been asked to assume that at some point Van Le ran from the western shoulder onto the roadway, and in the course of doing so was in the middle of the southbound lane when observed by Mr Gordon. While at some earlier point of the journey Van Le moved from the western shoulder onto the roadway and crossed, it is incorrect to assume that it was in the course of doing so that he was observed by Mr Gordon in the middle of the southbound lane. Mr Keramidas records that he "has been asked to assume that Mr Gordon observed the plaintiff on his right-hand [western] side, on the gravel shoulder just off the edge of the bitumen at a time when Mr Gordon was in the process of swerving around Mr Le". Such an assumption is not correct. Perhaps the assumption should be that Mr Gordon observed the plaintiff on the eastern side of Henry Lawson Drive. Mr Gordon had seen the man with Mr Le probably before and not later than when Mr Gordon began his swerving manoeuvre. Mr Gordon could not recall which of the two men he saw first and I am not prepared to make a positive finding on this point. 118 Mr Keramidas wrote that several seconds later than when Mr Gordon was in the process of swerving around Mr Le the plaintiff came into collision with the front left portion of the defendant's vehicle. In the present case the plaintiff submitted that it was important to quantify the number of seconds as the seconds elapsed pointed to the distance likely to have been travelled. Counsel for the plaintiff recognised that such an approach was inviting the Court to attach importance to fine details where mistakes could be made. 119 Mr Keramidas, on the basis of his analysis and his assumptions, concluded: "It therefore appears that the plaintiff has entered the roadway and run either diagonally in a north easterly direction or across the road in an easterly direction between Mr Gordon first observing him and the plaintiff's eventual position at the point of impact. He would, in essence, have been moving from the Defendant's right side to her left side as the two approached each other and based on assumption 10 has moved at a slight angle towards the eastern side of the road," [Assumption 10, as earlier mentioned, was that almost immediately after she saw Van Le pass down the passenger side of her vehicle she saw the plaintiff running towards the front of her vehicle in about the middle of her lane in a slightly diagonal direction towards the eastern side of Henry Lawson Drive.] 120 I do not agree with that conclusion. That is not what happened. When Mr Gordon saw Van Le and the plaintiff they were close together with Van Le probably in the southbound lane and the plaintiff virtually beside him on the eastern side of the road even if slightly behind him. I think that Mr Gordon's evidence that when he saw the two men they were walking is probably correct, although it is difficult to be certain about this detail. 121 Mr Keramidas thought he detected a slight deviation in the skid marks. He said that the distance of the deviation had not been measured and at best could only be estimated off the photographs taken by the police. He had difficulty in identifying the deviation in the photographs in evidence. He described the deviation as subtle. He felt he had had access to better photographic prints where it was possible to pick up the deviation. Mr Keramidas wrote that the best estimate he could provide was that the deviation (and the point of impact) occurred about two thirds of the way along the skid mark - it was not precise. 122 Mr Keramidas thought: (a) as earlier mentioned, the point of impact is likely to have been somewhere between 7.7 to 14.8 metres from the commencement of the skid marks and about 1:1 to 1.25 metres west of the eastern edge line applicable to the southbound lane, (b) the defendant vehicle's speed at impact is likely to have ranged somewhere between 37kph (for the southern extreme of the likely impact area) to about 52kph (for the northern extreme). (c) as the plaintiff has been struck by the leading edge of the defendant's vehicle and subsequently struck areas of the bonnet and windscreen, the form of impact configuration would have been of a `wrap' type; the resulting projection distance for the plaintiff would have been somewhere between 13 metres for the northernmost point of probable impact and 5.9 metres for the southern extreme. (d) the potential speed of the plaintiff running towards the car needs to be taken into account. (Mr Keramidas tended to rely on the evidence of the taped telephone call and the plaintiff fleeing.) (e) the most likely impact speed was about 40kph with the most likely point of impact being about 13.7 metres from the start of the skid marks and about 1.25 metres from the eastern edge. 123 Mr Keramidas explained that a vehicle's stopping distance comprises two main elements; first, the perception/reaction distance for which 1.5 seconds is conventionally allowed, and, secondly, the braking distance. In total the stopping distance required from 65kph would be just over 49 metres while from 70kph this distance increases to just under 55 metres. The total time taken from the commencement of the perception phase to the end of the braking phase would be in the order of four seconds. 124 Mr Keramidas wrote that he had been asked to assume that the defendant's vehicle was travelling at a distance greater than 30 metres behind Mr Gordon's vehicle based on Mr Gordon's observation of the defendant's vehicle after he performed his evasive manoeuvre. Mr Keramidas thought that as the evasive manoeuvre was likely to have taken 1.5 seconds or more the defendant's vehicle was likely to have been at least 34 to 42.5 metres behind at the start of Mr Gordon's evasive manoeuvre, Mr Gordon travelling between 10kph and 30kph slower than the defendant. 125 The plaintiff was not on the western side of Henry Lawson Drive as Mr Gordon's vehicle approached and began its slight swerve. The plaintiff was on the eastern side of the roadway beside Mr Van Le, albeit slightly behind him. Both men at that stage were probably walking and in a northerly direction. 126 Mr Keramidas wrote that the likely detection range (that is the range at which the defendant would detect the plaintiff would be somewhere in the order of 25 metres to 40 metres, dependant largely on the path taken by the plaintiff and that in all likelihood the driver would be unable to respond quickly enough to avoid impact at that range. 127 During Mr Keramidas' evidence in chief I was taken through the plans to scale prepared by him and attached to his report and which illustrate the points he made as well as depicting the area of the accident. 128 Mr Keramidas said that Collision Diagram B incorporates the position of Mr Gordon's vehicle during the swerve manoeuvre and the approximate position of the approach path of the northbound van of Mr Kahla and shows the minimum distance of the defendant's vehicle behind Mr Gordon's vehicle on the plan, which he thought was about 30 metres. That was based on an assumption he was given. Mr Keramidas said that if Mr Gordon's evidence was accurate, Mrs Dos Santos's vehicle would have been a much greater distance behind Mr Gordon's vehicle at the time the swerve commenced. 129 Mr Keramidas said that Mr Kahla's van would have had to be broadly in the area he depicted on the plan. 130 Mr Keramidas (at T443) stated: "... if you were to take the plaintiff's body as a whole, he is somewhere around about one-third to one half of the lane width into the south-bound lane ... he is there at the point of impact, as to how he gets there, whether he moves immediately there from the shoulder, whether he moved onto the roadway and travelled into a northerly direction for some distance we can't say." 131 As to the contention by Mr Johnston, the plaintiff's traffic engineer, that a safe following distance was one of three seconds behind the car in front as stated in the RTA guidelines Mr Keramidas responded: (i) even taking the minimum likely times based on Mr Gordon's description Mrs Dos Santos' vehicle was significantly further back than three seconds. (ii) there is no basis on which three seconds as opposed to two seconds would be preferred. (iii) if you combine reaction time of 1.5 seconds with the time required to brake a vehicle to a halt in an emergency braking from 60kph it takes 3.75 seconds. At 70kph it takes 4.14 seconds. In a rural environment the reaction time is about 2.5 seconds. There is no scientific basis on which to hold the 3 second guide will enable an accident free level of safety to be maintained. 132 Mr Keramidas expressed these conclusions which were taken from pp.39­40 of his report and modified at T447-449 as indicated: 1. The likely approach speed of the defendant was estimated at between 65kph and 70kph in an 80kph speed zone. 2. The speed of the defendant's Ford at the commencement of the skidding is likely to have been in. the order of 65kph while her speed at the point of impact is likely to have reduced to about 40kph. 3. The distance at which the defendant would need to have been 'travelling in order to successfully brake to a halt would be between 62.5 metres and 69.7 metres and would therefore mean that she would need to have been travelling about 3.5 seconds or 14 car lengths behind the vehicle ahead (being driven by Mr Gordon) and to have been able to detect the plaintiff's presence at that time. [At T447 Mr Keramidas stated that the technical calculations as to the minimum distance were still correct but according to Mr Gordon's description the range would be longer than 3.5 seconds or 14 car lengths. Mr Keramidas again referred back to his assessment of 6 - 8 second range for the commencement and completion of the swerve.] 4. The street lighting in the vicinity of this incident would not have assisted the defendant in the early detection of the plaintiff with the maximum likely detection range under the defendant's headlights being "25 - 40" [amended at T448 to 50] metres. [Mr Keramidas would also delete the words "given that the plaintiff commenced his motion from the right­hand side of the roadway when Mr Gordon passed his position.] Both changes were made in the light of Mr Gordon's evidence. 5. It is extremely unlikely that the defendant could have avoided impact given the circumstances of this case. 6. The swerving action by Mr Gordon is not likely to have produced any benefit (or disbenefit) to the defendant's potential to avoid impact. The reason for this is that while the swerving action by the vehicle ahead would have heightened her alertness, it also would have diverted her attention as she would be expected to have focussed on that vehicle's motion, at least momentarily. [Mr Keramidas said that this was correct but probably should also include that Mr Le's position on the roadway would also have attracted attention, particularly if she caught a glimpse of Mr Le in Mr Gordon's headlights as he attempted to swerve. There was Mr Le's bright and light coloured clothing and the plaintiff's duller clothing and a lesser visual cue.] 7 In the context of the incident circumstances, a [further] swerve manoeuvre [to the right] was not available to the defendant as she is likely to have come into impact with the northbound van driven by Mr Kahla had she attempted such a manoeuvre. 8. ... the response of the defendant to initiate a swerve [initially] and apply emergency braking was appropriate under the circumstances. 133 Mr Keramidas' last conclusion deals with the reports of Mr Grant Johnston, the expert traffic engineer called by the plaintiff. 134 Mr Keramidas at T449 expressed the opinion that if the factual statements in Mr Gordon's evidence are correct, this accident was inevitable. 135 In cross examination Mr Keramidas agreed that in the introduction to his third report he had written: "The plaintiff was apparently fleeing an assailant and ran onto the roadway and into the path of the defendant's vehicle, where a collision occurred within the southbound lane." 136 Mr Keramidas said that this was an inference he had drawn and in totality the information indicates that. Nowhere in his statement did Mr Van Le say that the plaintiff ran onto the roadway and into the path of the defendant's vehicle. Mr Keramidas suggested that what he had written was a summary. He added, "... perhaps it's just poor wording on my part". 137 Mr Keramidas stated that between his reports the assumptions he was given changed. The latest set were the underlined assumptions in the third report. The non-underlined assumptions came from those originally provided. 138 Mr Keramidas agreed that he was aware that the defendant's vehicle was moved from the point of impact and that this was pretty obvious. 139 Mr Keramidas said that he measured in a temporal sense the length of the skid marks on the audiotape up to the point where the mobile phone indicates that there is an impact. He could not say whether the mobile phone had hit the ground or what it had hit or whether the vehicle had hit the plaintiff who was holding the mobile phone. 140 Mr Keramidas said that it was his recollection that the noise of the skid marks on the audiotape continued beyond the recording of the point of impact. He was unsure that the temporal length of the skid marks was in excess of two seconds but that was about the right timing for the length of the skid marks. 141 The length of time that the skidding continues after the impact could be a relevant factor to be taken into account in determining where the potential range of impact location is and the likely impact location. 142 Mr Keramidas said that he had not taken into account the time of the skid after the impact. 143 Mr Keramidas agreed that if, as she said to the police, Mrs Dos Santos was travelling at 70 kph (the equivalent of 19.4 metres per second) then travelling 5 to 10 metres behind a vehicle is exceedingly dangerous or potentially exceedingly dangerous. It is only a quarter to half a second behind. 144 Mr Keramidas was aware that the RTA recommends that an additional second be added to the three second rule in adverse conditions and that night time was an adverse condition because detection capabilities are slower. Mr Keramidas confirmed that a vehicle's headlights on low beam have a bias to the left. There is a greater strength of beam along the left hand side of the road than towards the centre of the road. 145 Mr Keramidas agreed that the RTA Road Users Handbook exhorts the road driver to look further than directly in front of his vehicle, and that would include beyond the vehicle in front of the driver. That would be to the extent that it was possible to see beyond that vehicle. Mr Keramidas agreed that Mrs Dos Santos told the police that the first thing she saw (after the car in front of her) were "two males running along directly in the middle road towards us heading north in our lane" with the male in front wearing a yellow jumper and light coloured clothes. He thought that the reflective indicator of the clothes that male was wearing was brighter than 10%. 146 Mr Keramidas agreed that Mrs Dos Santos' statement reads that before the Gordon manoeuvre she saw two men running towards the Gordon vehicle. She identifies the man in yellow and another man wearing some kind of shirt. According to her statement she doesn't do anything with the control of her car at that point of time. Nor, according to the statement has Mr Gordon done anything with the control of the car at that point. The statement next has Mr Gordon swerving to the right and back. 147 Mr Keramidas agreed that at the point Mrs Dos Santos first saw the two men on the roadway this should have alerted her that something unusual was happening. That would normally create a heightened sense of arousal to which a reasonable driver would respond. The statement does not reveal any response from Mrs Dos Santos. 148 On the sequence narrated in the statement with the Gordon swerve next occurring Mr Keramidas did not think that this would have made any difference to Mrs Dos Santos if she had seen the males running towards her. This is because she would have worked out that Gordon would brake, Gordon would hit them, or Gordon would swerve around them. In her statement Mrs Dos Santos does not refer to the males moving off the road. Potentially, Mrs Dos Santos ought, on her statement, to have been in a situation where she could mimic the three alternatives open to Mr Gordon. 149 On Collision Diagram B prepared by Mr Keramidas he has shown what he believed was the swerve path of Mr Gordon's car, the approximate position of Mr Gordon's car during the swerve when it moved over the centre line and the approximate position of Mr Van Le in the southern lane as Mr Gordon executed the swerve and Mrs Dos Santos' vehicle, which is shown as about 38metres (according to the scale) behind Mr Gordon's vehicle. Mr Keramidas remarked that Mr Le would be evident up to 70 metres on Mrs Dos Santos' headlights once Mr Gordon moved out of the way provided her vehicle was within 70 metres of Mr Le's position. Mr Keramidas was assuming that there were no obstructions. On Mr Keramidas' calculations, Mrs Dos Santos' vehicle would have been much more than 38 metres (or 30 metres) behind Mr Gordon's vehicle. He would expect that distance to be significantly greater than 54 metres based on the assumption that the swerving manoeuvre takes three seconds and that there had to be some additional time to that where the driver makes his observations. 150 On Collision Diagram B, Mr Keramidas has shown the plaintiff's position as being on the western side of the road in the northern lane. That was an assumption he made but he stated that if Mr Gordon's evidence was accepted the marking is incorrect. The marking is incorrect on the evidence available to this Court including the statement of Mrs Dos Santos. 151 Mr Keramidas explained that his time-frame of six to eight seconds from the start of the swerve to the time Mr Gordon looked up into his rear vision mirror involved about two or three seconds (probably the latter) for the evasive manoeuvre, probably three seconds by the time the vehicle recovers and is travelling normally in the southbound lane. Beyond that it is a case of reading and hearing Mr Gordon's evidence of what he then did and adding additional time. Mr Keramidas selected three to five seconds making a total of six to eight seconds. It was an assessment and judgment process. 152 On the assumption that there was a six second gap between Mrs Dos Santos' vehicle and Mr Gordon's vehicle and she was travelling at 70kph, Mr Keramidas calculated she would be 115 metres behind Mr Gordon's vehicle, and at 65kph 108 metres. Mr Keramidas agreed that at that distance (referring probably to 115 metres but including 108) she would have seen Mr Gordon's car ahead of her and his lights illuminating the road ahead of his car. Mr Keramidas said it was difficult to answer whether she would have seen a man in bright reflective clothing illuminated by the headlights on low beam (of Mr Gordon's car). Mr Keramidas added, "He would have been in view as Mr Gordon started to move around him. Whether he was detectable or not, I can't say". 153 Mr Keramidas was referred to Mrs Dos Santos' statement in which she appeared to be saying that before the manoeuvre commenced, the man (Van Le) was detectable to her: He gave me the impression that he was doubtful whether Mrs Dos Santos would have seen Mr Van Le until after Mr Gordon had begun his swerve. 154 Mr Keramidas agreed that at a distance of 115 metres behind Mr Gordon's car, just the manoeuvre of his car would have caused a heightened arousal with respect to that vehicle and that there was a potential hazard ahead. 155 Mr Keramidas said (T491) that six to eight seconds was made up of 1.5 seconds pre-passing swerves, 1.5 seconds post passing swerve, and 3 to 5 seconds of looking up and looking down. 156 Mr. Keramides said at the time Mr. Gordon commenced his swerve Mrs Dos Santos was marginally less than six to eight seconds behind. The reason was that when Mr Gordon is adjacent to Mr Van Le, Mr Gordon has from that point four and a half to six and a half seconds, being the second half of the swerve manoeuvre of one and a half seconds, plus another three to five seconds of observation, so four and a half seconds to six and a half seconds between when he passes Mr Van Le's position to the point where he sees Mr Tran in the air. This was based on Mr Van Le and the plaintiff being static. The times would be a little less if they were moving north so that the time period would not be six to eight seconds, but might be five to seven seconds. 157 Mr Keramidas said that if Mrs Dos Santos was travelling 7 seconds behind Mr Gordon at the time of his swerve and was aware of it she should have been able to stop within 3.65 to 3.85 seconds. That includes at the minimum a reaction time of 1.2 seconds and 2.45 seconds being the actual time to skid from 65kph to stop. 158 r Keramidas on being questioned on his answer in chief that the accident was inevitable pointed out that he was being asked to make different assumptions in cross examinations the key one being that Mr Gordon's swerve precipitated the emergency response rather than some detection of the plaintiff. If the assumptions put in cross-examination were correct Mrs Dos Santos had time to stop. 159 Mr Keramidas said at T494 "In saying that if she's 5 to 7 seconds behind, if Mr Gordon's manoeuvre doesn't just increase her level of alertness but actually commences the perception reaction phase she has plenty of time to stop." 160 He agreed that if her statement is accepted that she saw these men on the roadway before the Gordon manoeuvre commenced and was somehow able to perceive them in front of Mr Gordon's vehicle, she had even more time to stop. 161 Mr Keramidas (at T498) agreed that assumption 1 in his report (p 7) is not consistent with Mr Gordon's account. Mr Keramidas agreed that assumption No.2 includes a reference to `running' and that is inconsistent with Mr Gordon's account at the time he passed through. 162 Inasmuch as assumption 5 refers to crossing the road from the western to the eastern side that is probably inconsistent with what Mr Gordon saw because he talks about them travelling in a northerly direction. Mr Keramidas did not think there was an indication of an angle anywhere in the relevant materials. 163 Assumption 6 was challenged in that it is stated that Mr Gordon saw a second man in the course of his swerve whereas his evidence was that he saw both men (Van Le and the plaintiff) before he commenced to swerve. 164 As to assumption 7, Mr Keramidas agreed that if Mr Gordon's evidence and the timeframe extracted from it were accepted, Mrs Dos Santos' vehicle was 100 to 114 metres behind that of Mr Gordon and that his evidence was that he was travelling between 50 and 70 kph rather than 40 to 60 kph. 165 As to assumption 9, that Mrs Dos Santos saw a man with a yellow shirt move from approximately the centre of her lane to the eastern side of Henry Lawson Drive and she saw him pass down the passenger side of her vehicle, Mr Keramidas appeared to accept that there was no direct evidence of these matters other than that Mrs Dos Santos did not hit Mr Van Le. Mr Keramidas could not remember where this assumption came from. Perhaps it was comprised of inferences. Mr Keramidas agreed that he had no idea whether Mr Van Le was on the right side of her car or the left. 166 Mr Keramidas said that he had followed assumption 10. That reads: "Almost immediately thereafter [i.e. after she saw the man with the yellow shirt pass down the passenger side of her vehicle] the defendant saw the plaintiff running towards the front of her vehicle in about the middle of her lane, in a slightly diagonal direction towards the eastern side of Henry Lawson Drive." Mr Keramidas did not regard this assumption as inconsistent with Mr Gordon's evidence but it was inconsistent with Mrs Dos Santos' statement. He had been given this assumption. 167 Mr Keramidas stated that to the 6 to 8 second time estimate for the swerve there needed to be added the perception reaction time of 1.5 seconds and that an earlier answer suggesting that the perception reaction time was included in the 6 to 8 seconds was incorrect. 168 Mr Keramidas agreed (at T512) that as to paragraph 5 of his conclusions, namely that it was extremely unlikely that the defendant could have avoided impact given the circumstances of the case, this depended very much upon a number of circumstances. 169 It depends on the time Mrs Dos Santos had available to her to detect the plaintiff on the roadway. There is the related question of what distance she was behind Mr Gordon. With the possibility of Mr Van Le being in Mr Gordon's headlights the likely prospect of Mrs Dos Santos seeing that was in excess of 70 metres for Mr Van Le. At a detection range of 70 metres Mr Dos Santos could have stopped her vehicle. If Mrs Dos Santos' braking effort was in response to Mr Van Le and she was able to miss him, the lead pedestrian, she was able to miss the plaintiff assuming he was further behind Mr Van Le. 170 Mr. Keramides stated that if Mr. Van Le became visible to Mrs. Dos Santos at the instant that Mr Gordon was performing his evasive manoeuvre that identified for her that something had happened ahead and in seeing Mr Van Le she could also identify what the hazard was. That does not identify the plaintiff as a hazard. He would not be expected to be visible at this point. Mr Keramidas stated that what essentially would be happening was that Mr Gordon and Mr Van Le would be creating strong visual cues and attraction to the driver's gaze, whereas unknown to Mrs Dos Santos the actual hazard is a pedestrian not yet visible 8 to 10 metres behind Mr Van Le. 171 Mr Keramidas thought that detecting Mr Gordon's swerve would not of itself generate an emergency response in a following driver. It would not have generated a response from Mrs Dos Santos that emergency braking was required. Mr Keramidas said that if she was to see Mr Van Le at the point that Mr Gordon swerves she would be able to keep Mr Le under surveillance. If he continued running on the roadway in a northerly direction into her path he would expect an emergency response by her and she could probably brake and stop in time to avoid colliding with Mr Van Le. If Mr Van Le moved off the roadway to the eastern shoulder, then having seen Mr Gordon swerve around an object that appears to be Mr Van Le and Mr Van Le now being off the roadway, the hazard is no longer there for her, so Mr Keramidas would not expect that to precipitate an emergency response of braking. 172 Mr Keramidas thought that the scenario he was advancing was consistent with the statement in paragraph 6 of Mrs Dos Santos' statement, namely: "I was driving along and the car in front swerved to the right and then back to the left in the lane. Within a second I saw the second man standing in the middle of the road, I braked harshly." 173 I regarded Mr Keramidas as an accomplished advocate of the views he was advancing on behalf of the defendant. Factual Findings 174 I have earlier indicated my views on some of the evidence and I will not repeat them. 1. After Mr Gordon's vehicle turned into Henry Lawson Drive he probably slowly built up speed as he proceeded south. He saw two men, one of whom was in a yellow shirt and roughly in the middle of the southern lane about the southern end of the tennis courts. The second man was not in the southern lane. As he gave his evidence Mr Gordon was sure that the man in the yellow shirt was in the southern lane but unsure as to his approximate position in that lane. 2. Mr Gordon's vehicle was probably travelling a little over 50 kph as he proceeded south along Henry Lawson Drive. Mr Gordon was not able to state the distance between his vehicle and the man in the yellow shirt when he (Gordon) first saw him, It was probably of the order of about 70 metres. Mr Gordon said that his headlights lit up the man in the yellow shirt and that that man came out of the darkness. This is probably correct. Mr Gordon decided that he could safely swerve around the man in the yellow shirt and did so. 3. I have accepted the evidence of Mr Kahla that Mr Gordon's white car swerved into the northbound lane "just a little bit". The swerve was slight. Mr Gordon described the manoeuvre as "sharp" in the sense that he had to take evasive action. But not sharp in the sense of the vehicle being out of control. I do not think that Mr Gordon's vehicle travelled other than slightly into the northbound lane. Mr Gordon conceded that he was a little rattled by what had occurred and slowed down. Mr Kahla correctly appreciated what had happened. 4. Evidence was given by both Mr Keramidas and Mr Johnston of the estimates of the likely times taken by Mr Gordon from when he first observed the man in the yellow shirt, through the swerve manoeuvre and until he saw the silhouette of a person in the air. They do not sufficiently take into account the very minor manoeuvre and the coalescing of the various steps taken. The analysis has become over refined and extended in time what occurred. 5. The defendant saw two males (Van Le and the plaintiff) heading north along Henry Lawson Drive. I am unable to accept her statement that she "saw two males ... directly in the middle road" if she was intending to convey that both men were either in the middle of Henry Lawson Drive or in the middle of the southern lane of Henry Lawson Drive. I accept that the man in the yellow shirt may have been slightly in front of the other man (the plaintiff). 6. I am unable to fix with precision where the defendant's vehicle was on Henry Lawson Drive when she saw the two males. I am unable to determine whether she then took emergency action. I am also unable to determine whether the two males were running or walking at the point when the defendant first saw them and subsequently and whether the plaintiff was at any stage stationary. 7. The defendant was travelling at a faster speed than Mr Gordon and in a more powerful car. She was gaining on him. 8. The defendant was travelling too close to Mr Gordon's vehicle. She referred to another vehicle "about five to ten metres in front of us." She said in her statement also "the car in front swerved to the right and then back to the left into the lane." That was a reference to Mr Gordon's vehicle. The defendant's vehicle was a very short distance behind Mr Gordon's vehicle, I think, she was gaining on him. By a "very short distance", I include distances a little greater than 10 metres. I think Mrs Dos Santos was in the best position to assess how far she was travelling behind Mr Gordon's vehicle. Mr Gordon was not correct in his suggestion that the following vehicle was further behind him based on his erroneous assessment, via his rear vision mirror, of the position of the vehicles following his vehicle. 9. If Mrs Dos Santos had been keeping a proper lookout she would have seen Mr Van Le very shortly after Mr Gordon picked up Mr Van Le in his headlights. Shortly thereafter she would have seen the plaintiff. The nearside headlight tend to be stronger and have greater range than the offside headlight. 10. At some stage, which cannot be fixed with precision, Mr Van Le moved from the southern lane of Henry Lawson Drive onto the side of that road. This was probably after Mr Gordon's vehicle passed Mr Van Le. It is also probable that the plaintiff moved from the side of that road into the eastern section of the southern lane, but I am not able to say exactly when this occurred. From the terms of the 000 call the plaintiff was fearful of his assailant up until he was struck by the defendant's vehicle. I would infer from all the circumstances that the plaintiff was trying to stop a vehicle or vehicles in order to obtain help. Some Legal Principles 175 Both parties relied on what is colloquially called the "agony of the moment principle". Both parties accepted that this passage in the judgment of Street CJ in Leishman v Thomas; Hobbs (3rd Party) (1957) 75 WN (NSW) 173 at 175 stated the law as it has been applied in New South Wales: "This so-called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise." 176 In Medida Pty Ltd v Tobin (NSWCA 20 Dec 1995 - BC 9501776) Gleeson CJ and Priestley JA recognised the distinction between a negligent act and an act done, in the agony of the moment, and in response to a situation of unexpected danger, which, although it may have been seen to be imprudent if there had been adequate time for reflection, does not, in the circumstances involve fault. 177 There are two decisions of Bray CJ which are helpful. In Cortis v Baker [1968] SASR 367 at 369 (citation omitted) he said: "But the rule in The Bywell Castle does not mean that what a party does in an emergency created by the fault of another can never amount to negligence. It means no more than this, that he is only required to exercise such care and skill as a person of ordinary prudence, firmness and experience in the circumstances of the emergency." 178 In Shelley v Szelley [1971] SASR 430 at 431 the Chief Justice said: "The general rule was enunciated by Lord Blackburn (citation omitted) in the following words: 'When a man is suddenly and without warning thrown into a critical position due allowance should be made for this but not too much.' The rule is subject to the important qualification that the emergency must not be brought about by the negligence of the party whose conduct after it is under consideration ..." 179 The Chief Justice also refers at 432 to Lord Dunedin's comment (citation omitted) "'it is not in the mouth of those who have created the danger of the situation to be minutely critical of what is done by those whom they have by their fault involved in the danger." 180 In the Nominal Defendant v Rowland-Smith [2003] NSWCA 65 the respondent was injured when she collided on her bike with the second of two parked cars in daytime conditions of good visibility. She sensed a car was fast approaching her from behind and was too close. She corrected to the left after she passed the first parked car thinking that she could then avoid the second parked car but just failed to do so. At [68] Santow JA, with whom Giles JA and Gzell J agreed, said: "But as to negligence in the execution of that manoeuvre, as Trindade and Cane, The Law of Torts in Australia, 3rd ed, 1999, at 458 conclude: 'a person faced with an emergency is only required to exercise such care and skill as a person of ordinary prudence, firmness and experience might have exhibited in the circumstances of an emergency'. The authority for this proposition is Cortis v Baker [1968] SASR 367. This proposition demonstrates that even if the situation in which the cyclist found herself was not a true 'agony of the moment' situation such as to completely defeat a defence of contributory negligence, 'allowance can still be made for the fact that under pressure and 'in the heat of the moment' less care and foresight can reasonably be expected than when there is ample time for reflection and planning'; Leishman v Thomas (supra). That this proposition applies equally to negligence of a defendant and contributory negligence of a plaintiff was established in Shelly v Szelly [1971] SASR 430 per Bray CJ". 181 In the present case the defendant cannot rely on an act done in the agony of the moment or in an emergency situation. Her vehicle was too close to Mr Gordon's vehicle. She could not avoid an accident if an emergency arose on the road in front of her. 182 In support of her submission that she was confronted with an agony of the moment or emergency situation the defendant relied on travelling in an 80 kph zone in a dark bushland area at 9.50pm on an arterial road connecting two major areas of metropolitan Sydney. She had just left a built up area. She would not have expected pedestrians to be walking or running along the roadway. However, these considerations are more than offset by her vehicle being much too close to Mr Gordon's vehicle. If any emergency arose she was in no position to take evasive action. It was not safe for her to travel at such a short distance behind Mr Gordon's vehicle. By travelling much too close to Mr Gordon's vehicle she contributed significantly to the emergency which arose. If she had been travelling a safe distance behind Mr Gordon's vehicle she would have been able to avoid the accident. In my opinion, by travelling at a short distance behind Mr Gordon's vehicle the defendant was guilty of negligence. 183 Despite being chased by an assailant the plaintiff acted unreasonably and was negligent in being in the southbound lane of Henry Lawson Drive in the area to the south of Coleman Park (the tennis courts). The speed limit of 80 kph allowed for fast moving traffic. The area was dark and it was 9.50pm. Oncoming drivers would not be expecting pedestrians to be on the roadway in such an area at such a time. Drivers of oncoming vehicles may well be reluctant to stop in such area at 9.50pm. While the plaintiff was terrified and could not be expected to weigh up matters in a cool and detached fashion it was unreasonable because of the area, the darkness restricting vision and the likely speed of the traffic on an arterial road for the plaintiff to be on the carriageway. It was obvious that he ran the very considerable risk of being hit by an oncoming vehicle that could not stop in time. In the prevailing and obvious circumstances it was evident that any, flagging down of oncoming vehicles to obtain help had to be done from the side of the road, although this would probably not be so effective. 184 While I have held the defendant to be negligent I think that the plaintiff was even more negligent by being on this roadway in the prevailing conditions. Despite the pressures the plaintiff was under and his need of assistance it should reasonably have occurred to him not to enter the southbound traffic lane of Henry Lawson Drive in the bushland area at 9.50pm for fear of being hit. The plaintiff's intoxication would not have helped him to act reasonably. 185 For the reasons given I would apportion liability and responsibility for the accident as to 60 per cent to the plaintiff and 40 per cent to the. defendant.\ Injuries and Treatment 186 There was a major contest between the views of Dr S.R. Buckley a Senior and experienced Rehabilitation physician and Dr P.J. Spira, a Senior and experienced Neurologist. Both accepted that the plaintiff had suffered very serious injuries. Dr Buckley's approach was that rehabilitative measures were worth taking in an effort to try and improve the plaintiff's dire lot, even though they may not be successful and any improvement would be limited to developing the plaintiff's cognition. If the steps advocated by Dr Buckley were taken and were successful the plaintiff would still require constant care and be an invalid wholly dependant on others and unable to speak. 187 Dr Spira thought that the plaintiff would never improve beyond his present dire lot and that nothing of substance could usefully be done for him. The plaintiff was beyond any worthwhile improvement. He rejected Dr Buckley's plan and thought that it was futile to embark upon the steps suggested. Dr Spira emphasised the plaintiff's lack of brain function and the contractures of his limbs. I was helped by the evidence of both these specialists. 188 Dr Buckley adopted a "can do" and "give it a try" approach in an effort to improve the plaintiff's lot, accepting that any improvement would be limited. Dr Spira thought that the steps proposed by Dr Buckley would result in no improvement and were futile. Dr Spira thought that the plaintiff's future was one of maintenance of his present condition and deterioration. 189 Dr Tam supported Dr Spira's views but he last saw the plaintiff in 2006 and unlike Drs Buckley and Spira had not seen him in 2008. 190 The details of the disagreements of the doctors appear from the summaries which follow. 191 Dr S R Buckley, a consultant physician in rehabilitation medicine retained on behalf of the plaintiff examined him on 15 August 2006 and 11 October 2006 Dr Buckley's diagnosis in his report of 15 October 2006 was "traumatic brain injury in the extremely severe range from which he has extremely severe disability". The plaintiff's condition has been described as "persistent vegetative state" and "extremely severe physical impairment involving all four limbs. Dr Buckley did not accept that the persistent vegetative state was irreversible or permanent but wrote that "the statistical likelihood of his recovery from his current condition would be extremely small". Dr Buckley further wrote that there was a reasonable presumption that the plaintiff is, as at October 2006, "in status epilepticus and seizing either permanently or intermittently." That does not seem to be applicable in 2008. It was questionable in 2006. 192 In his report of 13 March 2008 following his examination on the previous day Dr Buckley's diagnosis was: "Traumatic brain injury in the 'extremely severe' range resulting in the 'Minimally Responsive' State and extremely severe physical impairment involving all four limbs". 'Minimally Responsive' is marginally better than 'persistent vegetative state' as previously diagnosed but there is little in the distinction. 'Minimally Responsive' connotes an extremely severe brain injury. Dr Buckley wrote: "Taken in conjunction with the DVD revealing the possibility of one blink for yes and two blinks for no in various patterns I believe it is more likely than not, but not conclusive, that Mr Tran does not have some significant interaction with his environment". 193 Shortly after the accident the plaintiff was admitted to Liverpool Hospital where he was diagnosed as having suffered severe head, skull and brain injuries, multiple facial fractures and internal injuries. 194 The plaintiff underwent numerous major operations and procedures. On 15 November 2007, the day after the accident, there was a neurosurgical operation for the insertion of a burr hole and intracranial pressure monitor. An x-ray of his chest showed significant right upper lobe collapse. A CT scan of his head revealed multiple intracerebral contusions and multiple facial fractures. A CT scan of his abdomen revealed multiple lacerations within the right lobe of the liver. 195 On 17 November 2003 the plaintiff underwent a decompressive craniectomy with burr hole and insertion of an extra ventricular drain. Dr Buckley explained that after severe traumatic brain injury the brain swells. The only way to relieve the pressure that builds up sufficient to maintain blood circulation is to remove part .of the skull and thus decompress the pressure within the box. 196 On 26 November 2003 the plaintiff underwent open reduction and internal fixation of his multiple facial fractures. He developed hydrocephalus. and subsequently on 23 December 2003 had insertion via a neurosurgical operation of an intraventricular peritoneal shunt. 197 On 23 January 2004 the plaintiff underwent an operative procedure for the insertion of a percutaneous tracheostomy and a feeding tube. 198 On 27 February 2004 the plaintiff underwent an autologous cranioplasty. This involves replacement of the bone of the skull. That is a critical procedure "in returning the closed box physiology of the brain". Often the bone that was removed is used but there is a significant risk of infection. He became ill. 199 On 4 March 2004 he underwent an operative procedure which involved a burr hole and the drainage of an extra dural abscess which had developed. On 10 March 2004 the plaintiff underwent an operative procedure for the removal of an infected skull flap. Thereafter the plaintiff was left with skin over the hole in his skull. Various tests were carried out from late March to mid May 2004. On 24 May the plaintiff underwent gastroscopy and insertion of PEG (percutaneous enteral gastrostomy ) feeding tube and PEJ (percutaneous enteral jejunostomy) feeding tube. He was given food through the PEJ tube and medications through the PEG tube. On 3 June 20004 the plaintiff underwent a further gastroscopy and a new PEJ tube was inserted. 200 On 26 July 2004 the plaintiff was transferred from Liverpool Hospital to Canterbury Nursing Home where he has since remained. 201 Dr Buckley thought that the scalp had retracted due to air pressure from outside squeezing in and, in Mr Tran's case, to a major extent. 202 Dr Buckley relied on a letter dated 26 July 2004 by the Physiotherapist and Occupational Therapist of Liverpool Hospital that the plaintiff could initially follow single step commands and had a left hemiplegia. They reported: "Following cranioplasty on 27/02/04 his condition deteriorated due to infected skull flap which was removed on 4/03/04. He developed severe hypertonus in trunk and all limbs. He also developed heterotophic ossifications in multiple joints including hips and knees. In the past several months Mr Tran's intervention has been aimed at maintaining muscle length for hygiene, comfort and pressure relief. His stretches include hip and shoulder adductors. These are difficult to apply as Mr Tran's tone increases in response to touch. His brother is usually able to apply these with more success. Mr Tran has periods of alertness but is unable to follow commands. He continues to have severe increased muscle tone and has developed significant contractures in most muscle groups. … We have been unable to sit Mr Tran out of bed due to episodes of increased tone in hip and trunk extensors. Stretches are incorporated into his positioning and are re-adjusted through the day." 203 In his oral evidence (T525) Dr Buckley said that where a person has severe traumatic brain damage, any illness is likely to worsen the demonstrable neurological impairment particularly infections with high fever. He explained that normally, if the infection is successfully treated, the person's neurological function would recover back to the way it was before the infection. It was desirable for the infection to be identified early, treated quickly and effectively and the complications limited. Thus the neurological deterioration is limited in time and severity. 204 Dr Buckley stated that normally, if there had not been the deterioration with infection, the hemiplegia (paralysis of the left arm and leg associated with that increased tone or spasticity or spasm) described by the therapists would have improved and the degree of spasticity managed and probably reduced. 205 Dr Buckley advocated, if it was determined to be technically feasible and likely to be successful by a neurosurgeon, an operation in which a plastic piece was inserted in the plaintiff's skull to cover the existing depression in his skull. Dr Buckley said that there was no guarantee that such a procedure would be successful. 206 In reporting on his examinations in August and October 2006 Dr Buckley wrote: "There was frequent eye blinking of a sustained character, with a right facial twitch. There was no vocalisation and no response to commands.." 207 Dr Buckley detailed some of the limitations of Mr Tran and described his accommodation in a three bed room of Spartan style. Dr Buckley's general impression was of a dated, worn, hospital type nursing home room. 208 Dr Buckley regarded Mr Tran's present condition as unacceptable and requiring stabilisation through significant medical input. He recommended his early transfer from the nursing home to a private rehabilitation hospital with a likelihood of a treatment program extending to approximately twelve months. Dr Buckley proposed that Mr Tran should have at an early stage, if technically feasible neurosurgically, a cranioplasty to reduce the severe ex vacuo scalp deformity. This may have to await the healing of the pressure sores. He outlined a detailed regime of post operative care and treatment, most of which should take place in the rehabilitation hospital. Dr Buckley thought that with the treatment proposed Mr Tran should improve at least to the state he was in the first month after the accident insofar as he was able to follow one step commands. 209 Dr Buckley thought that if Mr Tran could achieve following one step commands he may do even better. He thought that if there is some significant cognitive improvement and reduced overall quadriparetic spasticity "it may then be feasible to consider joint operations in order to at least achieve a reasonable sifting posture, so that his entire life is not spent in bed". 210 Dr Buckley said that after about one year working through these issues in a private rehabilitation hospital Mr Tran would require the full time care and supervision of others. Dr Buckley wrote: "... his present care, having resulted in his present condition, is indicative of its inadequacy. I do not mean by this to criticize the nursing care received because his physical condition with respect to ordinary care requirements, is good. Rather, the available resources in a nursing home including medical care resources, therapy resources, neurology resources, plastic surgery resources, neurosurgical resources, and indeed all the requirements for ordinary medical care, are not available. I believe that the most appropriate location for his care is in his own home. He would require the care of a house couple, one member of whom was a Registered Nurse. The reason for the requirement of a house couple is that his heavy nursing requirements are physically more than could be managed by a single carer." 211 Dr Buckley also thought that Mr Tran required an independent case manager, who was not involved in his day to day care, but who was a health professional. Dr Buckley made recommendations as to the medical care, physiotherapy and occupational therapy required, the features of the house in which he and his carers should be accommodated, hydrotherapy, handyman, transport (vehicle which is wheelchair accessible) and funds management. 212 Dr Buckley further wrote: "In my opinion, there is a reasonable expectation that with medical interventions as described (in particular, cranioplasty and improved epileptic seizure control), Mr Tran is likely to have significantly improved cognition and insight into his condition. He is likely to have considerable physical improvement so that, for example, his care can be contemplated beyond simple bed rest. Nevertheless, despite such a program, it is highly probable that he will remain dependent upon the care of other people, and will require a house couple, one member of whom is Registered Nurse, to provide it. Further, he is likely to remain unemployable on the open employment market." 213 In his report of 26 March 2007 Dr Buckley wrote that Mr Tran is characterised by two principal reversible medical conditions, that is severe intracranial deformation caused by the absence of his skull and the presence of either status epilepticus or frequent intermittent seizures. Dr Buckley continued: "If these two conditions were to be treated, then taking into account the known fact that he was able to obey one step commands one month after his accident it seems reasonably likely that he would have achieved much more physical and cognitive capacity than is presently available." 214 There was a major dispute as to these matters. 215 Dr Buckley further wrote in his report of 26 March 2007: "Although at an early stage he was noted to have a left hemiparesis, it appears that there was not severe right sided arm and leg deficits. In so far as he was obeying one step commands and was 'clearly not in coma one month after the accident, the likely outcome would have been that he would have obtained mobility despite the hemiparesis. Even if he had not obtained mobility, but had good right arm and leg movement, then there would be a reasonable apprehension that his life expectancy would be at least the equivalent of a person with paraplegia." 216 Dr Buckley discussed the difficulties in making an estimate of future life expectancy for people with traumatic brain injury and concluded: "Taking into account all the circumstances, I would therefore propose that he has a life expectancy of 91% of the years that would normally remain, if he receives the management I have advised" 217 Dr Buckley again attended at the nursing home and examined Mr Tran on 12 March 2008. Ihave earlier set out his diagnosis. He re-iterated what he regarded as the Requirements for Care but he deferred his opinion as to life expectancy pending the outcome of rehabilitation and medical programs. 218 Dr Buckley summarised what occurred during his visit. He had previously been shown DVD movies of Mr Tran's responses to his brother, primarily. Dr Buckley expressed this opinion: "Taken in conjunction with the DVD revealing the possibility of one blink for yes and two blinks for no in various patterns I believe it more likely than not, but not conclusive, that Mr Tran does have some significant interaction and with his environment." … It is my opinion that he probably meets the criteria for assessment as 'minimally responsive.' [That is a patient whose responses 'are inconsistent but indicative of meaningful interaction with the environment.']" The blinking code set out by Dr Buckley is the reverse of that propounded by the elder brother. 219 To reinforce his view, Dr Buckley relied on a range of staff members in the nursing home having identified responses from the plaintiff. Dr Buckley said that on his examination in March 2008 the staff in the nursing home clearly believed that the plaintiff responded to them on a regular basis. Dr Buckley thought that the plaintiff was now responding to commands to an extent-but not always entirely reliably-to him (Buckley), the plaintiff's mother, his brother and some staff members (T528). 220 Dr Buckley did not think there was an indication of good cognitive function but an indication that Mr Tran does have some comprehension and was able to express some desires. It was highly unlikely that Mr Tran had a comprehension of his circumstances. 221 In his oral evidence Dr Buckley said that he believed it was not unlikely that Mr Tran could communicate his desires and needs to his carers if the program of rehabilitation and medical management suggested were applied to him. Dr Buckley stated that there was no guarantee. 222 Dr Buckley was of the opinion, that whether or not a cranioplasty was carried out, Mr Tran should have more intervention medically for his spasticity. Spasticity is very similar to pain for people in Mr Tran's position. 223 Dr Buckley said that if the cranioplasty cannot be feasibly and successfully performed the application of an extra rehabilitation program such as he has advised would not be required, although Mr Tran may well benefit from a few months in a rehab unit to try and reduce the spasticity and to deal with the possibility that he is suffering seizures. Within 3 months it would be known how far one could proceed and whether any useful outcome could be achieved with such intervention. 224 Dr Buckley stated that if the cranioplasty could be successfully performed the likelihood of it making a significant improvement in Mr Tran's condition cognitively and physically, was somewhat more than 50 per cent. However, there was quite a high risk that Mr Tran would not improve. Dr Buckley said that every cranioplasty including subsequent cranioplasties is associated with a risk of infection occurring of around ten per cent. The ordinary precautions to prevent infection would be taken and infection can be treated if it occurred. 225 If the second cranioplasty operation was successful, Dr Buckley envisaged daily physiotherapy and daily treatment by a speech pathologist who would be involved in all forms of communication and deeply involved in providing assistance with feeding. 226 Dr Buckley said that he had looked after many people with brain injuries not dissimilar to those of Mr Tran with successful outcomes based on the kind of rehabilitation program recommended for Mr Tran. 227 Dr Buckley also envisaged the employment of a psychologist to assist in the establishment of the communication process but not on as regular basis as the speech pathologist. An occupational therapist would also be employed in tasks such as prescribing and fitting seating arrangements, making splints for the arms to try and reduce the spasticity and developing any hand function that might become available. 228 Dr Buckley considered that it was generally accepted that aged care nursing homes were an inappropriate environment for younger people who had different interests and needs. He stated that the amount of nursing care available within a nursing home was insufficient to adequately manage a person with Mr Tran's level of impairment and disability. He has in the past developed pressure sores on his ankles which should be prevented, but nursing homes do not have the nursing staff with the time to do so. 229 In cross-examination Dr Buckley stated that in the normal course of events neurological improvement of any significance from the two year period after the injury is unlikely and in 2006 expressed the view that if nothing was changed or done the likelihood of recovery from his current condition would be extremely small. Dr Buckley said that Mr Tran had clearly improved to the extent that he now demonstrates interaction with his environment and particularly the obeying of some simple commands. 230 Dr Buckley agreed that when he examined Mr Tran he (Buckley) visually threatened Mr Tran's eyes and he did not visually respond. On his first visit when Mr Tran was in a vegetative state Dr Buckley thought that Mr Tran was unconscious and therefore unable to react to visual threatening of his eyes. On his visit in March 2008 Dr Buckley thought that Mr Tran was conscious and that his lack of response to a visual threat was strongly indicative that Mr Tran was blind, with no useful vision. It was not conclusive that he was blind. Dr Buckley drew the conclusion from the latter test in 2008, that blindness should be considered as a possible part of his deficits. Dr Buckley agreed that if Mr Tran was blind or had no useful vision then the concept of him looking at television or following people with his eyes is nonsensical. It was not a nonsense that he blinked his eyes to change television channels as he may prefer the sound of a different television channel. 231 Dr Buckley believed that the absence of a successful cranioplasty leads to brain deformation and brain stem deformation. Dr Buckley believed every patient with a PEG tube should have speech pathology to assist with the ongoing management of oesophageal reflux and the person's capacity to swallow. The aim is to be able to remove the PEG tube and commence a swallowing program. Dr Buckley agreed that the question of Mr Tran swallowing food does not arise at the moment and has not arisen over the last five years, but it might arise in the future. This was because there was a significant probability that with proper medical management Mr Tran's condition may improve. It was unlikely that without a successful cranioplasty Mr Tran would achieve swallowing. 232 Dr Buckley did not regard swallowing as the crucial issue. He thought the issue was Mr Tran's capacity to communicate with his family and those caring for him. His only way of communicating presently depended on the blinking motion. On the examinations in 2006 Dr Buckley obtained no reliable blinking responses from Mr Tran. In March 2008 he obtained what he believed to be a reasonable possibility that Mr Tran was responding. Dr Buckley did not believe that his findings at that time were entirely conclusive. 233 Dr Buckley did not agree that Mr Tran demonstrated the condition of aberrant nerve reinnervation in relation to the facial nerve. While Dr Buckley had observed that when Mr Tran blinks his eye his upper lip moved he thought that while it was possible it was very unlikely in his case to be an illustration of aberrant nerve reinnervation. Dr Buckley was unaware of Mr Tran having facial nerve injury. Dr Buckley disagreed that there was no movement in Mr Tran's face apart from blinking. Dr Buckley had observed the mouth movement at the time Mr Tran blinks. 234 As to life expectancy Dr Buckley agreed that if there is little or no physical activity, reduction in life expectancy follows. There were other factors including absence of motor function, inability to feed orally, inability to self feed and inability to use any hand or arm function. He was not sure that the inability to communicate has been shown specifically to affect life expectancy in traumatic brain-injured patients but would have thought it offered a slight increase in mortality. Dr Buckley said usually what kills people in Mr Tran's situation is pneumonia. He thought that when Mr Tran was being PEG fed he was very unlikely to choke. 235 Dr Buckley said that if Mr Tran was cared for in the manner that he is currently cared for and there is no change in his medical management, his life expectancy would be much less than the 91 per cent which he has suggested. 236 Dr Buckley said that if Mr Tran stayed in Canterbury Nursing Home his life expectancy would be 15 to 20 years, but that a person in his condition could easily die almost any time. 237 On the first occasion Dr Buckley thought that the blinking and mouth movement could easily indicate continuing epilepsy. On the second occasion he did not see anything that suggested Mr Tran was having an epileptic seizure but on the assumption that he had been having such seizures, Dr Buckley thought that he would continue at times to have seizures. In his subsequent examinations of Mr Tran Dr Buckley did not see any signs that Mr Tran was suffering from the presence of frequent intermittent epileptiform seizures. 238 There was another point raised by Mr Stitt, that there was a non­resuscitation order in place with Mr Tran. That was believed to mean that the family had advised the nursing home staff that should Mr Tran suffer a cardiac arrest he should be permitted to die. It did not extend to other ordinary medical management Dr Buckley said he took into account that there was such an order. It did not affect his opinions. 239 There is some doubt whether such an order is still in force. The Director of Nursing of the Canterbury District Nursing Home gave evidence that there was not now such an order. 240 Dr P.J. Spira, a specialist neurologist, was called by the defendant. His main association in patients with traumatic brain injury is in the medico-legal framework. The main carer of patients with such injuries fall into rehabilitation in the longer term. A neurologist's involvement is usually in the acute phase but may be involved later where patients have involved complications. 241 Dr Spira examined Mr Tran on 20 October 2006 and again on 18 April 2008. In his detailed report of 13 November 2006 Dr Spira sets out some of the multiple injuries Mr Tran suffered and some of the processes he underwent. Dr Spira wrote: "Mr Tran remained deeply unconscious and continued to have excessively high intra cranial pressures even a month following his admission. An entry [in the Liverpool Hospital notes] on 12 January 2004 indicated that Mr Tran was opening his eyes spontaneously but was not tracking and did not follow commands. His condition has never risen above this level to the present time." 242 The entry in the Hospital notes refers to Mr Tran "not tracking consistently." Dr Spira further wrote: "Overall Mr Tran has shown no evidence of cognitive recovery and he remains in severely obtunded state with no apparent awareness of his surroundings." 243 Dr Spira expressed this opinion: "Mr Tran suffered extreme cerebral trauma in the motor vehicle accident of 14th November 2003 which now sees him totally unaware of himself or his surroundings. He has no use of his limbs which are disfigured due to he effects of chronic hypertonus producing joint deformity. He is totally dependent on others for feeding (via PEG tube) as well as for mouth, skin, bladder and bowel care. In essence Mr Tran is in a chronic vegetative state from which he will never emerge. He is at considerable risk of aspiration pneumonia as well as being prone to pressure areas leading to cutaneous infections. His care should involve vigilance on the part of his carers in relation to such features as abdominal distension, the emergence of fever or signs of skin breakdown. He will undoubtedly require courses of antibiotic therapy to deal with respiratory, cutaneous or urinary tract infections as they arise and he will need regular visits from his general practitioner. With more significant infections I believe he will require further admissions to Canterbury Hospital for intravenous antibiotic therapy. I believe that Mr Tran's care needs are very well met by Canterbury District Nursing Home where he seems to be treated particularly well. As long as the nursing staff and Mr Tran's family remain vigilant, I feel that continued care in the nursing home would be the appropriate way of dealing with his needs. It is a tribute to the nursing care he receives that he has survived over 2 years with as few complications he has had despite his severe level of disability. I have read Ms Sandford's suggestions and note in particular her recommendation that Mr Tran be moved to a purpose built home in an attempt to offer him `environmental enrichment.' Whereas I accept that this may be a general ideal to be strived for in most cases, I regard the comment to be totally misplaced in Mr Tran's case as he is and will . remain totally oblivious of his surroundings and he can not respond in any way to such enrichment. I also disagree with her comments regrading the fact that keeping Mr Tran in a nursing home does not provide '... social interaction or variations in his environment such as outings ...' It appears that she greatly overestimates Mr Tran's cognitive state and that he is totally incapable of any form of social interaction and considering his condition, an outing is firstly of no value to him and, secondly, would in fact be medically contraindicated. Similarly her comments regarding continuity of care providers allowing `both parties to develop familiarity' is surely not recognising the fact that Mr Tran has no familiarity with anything in his surroundings and he is essentially unaware of even himself. I believe that to move Mr Tran to a purpose built home would place an unfair burden on his family as they would be forced into the position of being his primary carers, albeit with a great deal of assistance. Such a move could be justified if Mr Tran were aware of his surroundings and could gain from the move but this is simply not the case. Ms Sandford refers to maintenance of the status quo as depriving Mr Tran of the chance of improvement. The best Mr Tran can hope for is maintenance of the status quo and in fact it is deterioration which is expected irrespective of where care is provided. Given the fact that Mr Tran could gain no benefit from a transfer to a purpose built house I believe he is best left where he is at present. Considering his level of disability the environment he has at the nursing home has met his need more than adequately..." 244 Dr Spira explained (T557) that the initial basis for his finding of chronic vegetative state from which Mr Tran will never emerge was that he was seeing Mr Tran in October 2006 well beyond the time that recovery was expected and there were no demonstrable evoked responses. The recovery time is about 18 months to 2 years during which the patient has about 98 per cent of any likely recovery; the first 9 months sees about 75 per cent of that recovery. 245 Dr Spira said Mr Tran had decerebrate posturing, probably the highest level of brain disorder, he has damage to the highest level of brain function. Three of the four major brain lobes are severely damaged and those three lobes provide most of the cognitive function. 246 Mr Stitt took Dr Spira through some of the reports from the Radiology Department of Liverpool Hospital (Ex 24). Dr Spira said that the best indicator of any recovery in a traumatic brain injury case is a sign of cognitive response, that is something that requires the patient to think to produce that response. Dr Spira explained that those treating the patient look for responses every day from the patient. That is the way in which they track patients. Dr Spira could not see any clinical evidence suggesting Mr Tran was in cognitive response at any relevant time and said that this indicated Mr Tran was at the extremity of severity of brain injury. 247 Dr Spira said that far more important than any investigation is the result of a good physical examination. Dr Spira agreed that as a neurologist he relied primarily on his physical examination and he supports that by going back and looking at the extent of the injury. Dr Spira said that neurologists have ways of examining people that gives a very clear picture of their level of cognitive state and their level of physical function. Dr Spira explained that EEG examinations on 24 March 2004 revealed indications of diffuse brain dysfunction. There was no evidence of epileptic activity during the EEG on 21 April 2004. 248 Dr Spira did not feel he could make a definite comment as to Mr Tran's level of function pre-infection. The Hospital notes were not sufficiently clear. Dr Spira added that what he had seen in the notes indicates that Mr Tran had no limb function and no responses - basically there was no function. 249 The infected bone had to come out. Once "that came out and his infection was treated theoretically he could have returned to where he was if no additional damage had been done." Dr Spira continued: "The infection itself I doubt had damaged him. What may have damaged him is the presence of infection and the presence of the plate [bone] again created excessively high intracranial pressures, and added to his disability on the basis of inadequate perfusion of his brain. So that there is a third insult in the equation." 250 Dr Spira said that he would need to re-read the Hospital notes because it had been years since he looked through the day to day records of Mr Tran's care. 251 Dr Spira did not think the infection in its own right could be held responsible for Mr Tran's current state. 252 Dr Spira disagreed with Dr Buckley's evidence as to intracranial deformation caused by the absence of Mr Tran's skull and that causing brain and brainstem tortion because it pushes the brain down onto the brainstem. Dr Spira was not aware of anyone who has been in any way harmed by not having their plate put back. Dr Spira said that there have been situations where the plate is not put back and there have been no torsional syndromes. Patients have been discharged from hospital with a craniectomy and returned some months later to have the plate put back. There has been no evidence of any dysfunction during that time nor any improvement in their function once the plate is put back. The brain is in a closed box as it is covered by a layer of very thick membrane known as the dura mater which has the stretchability of canvas. Mr Tran's dura has been closed. His brain is covered. Dr Spira continued, "The way in which it is not covered is, one, cosmetically and secondly in terms of the risk of trauma to be surface of the brain." 253 Dr Spira stated that Mr Tran does not now need a cranioplasty to prevent brain deformation and brainstem deformation for two reasons: (a) a cranioplasty would not achieve such results; and (b) Mr Tran is not at risk of the deformations mentioned. 254 A cranioplasty for cosmetic reasons is not a serious consideration. Dr Spira thought that a cranioplasty would not alter Mr Tran's situation by one iota. It is not and cannot be a cosmetic issue for Mr Tran. And, on enquiry his brother and his mother were reluctant to subject him to any further surgery and were accepting of his appearance. 255 Dr Spira had heard what was said about certain evoked responses but he did not see any on the occasions he saw Mr Tran. Dr Spira thought that Mr Tran had no awareness of the condition of his body nor any awareness of his surroundings. 256 Dr Spira conducted a further clinical examination of Mr Tran on 18 April 2008 at the nursing home. Mr Tran's cognitive function had not changed appreciably since he saw him in October 2006. Dr Spira added, "...on one or two occasions I wondered whether he was following me with his eyes but the difficulty was that he looks at things without necessarily focussing on them". His eyes are divergent and he never maintained gaze. He did not respond to the visual threat test. He administered this test 20-25 times, but there was no blink that coincided with a threat. This suggested that Mr Tran had no useful vision but Dr Spira could not say that categorically. Mr Tran's blinking was, Dr Spira stated, a reflex action. 257 Dr Spira thought that the plaintiff had a condition known as "aberrant nerve reinnervation". This occurs when a peripheral nerve not part of the brain, is damaged. Dr Spira said that Mr Tran clearly had facial nerve damage to create this condition and there was simultaneous movement of two groups of muscles. If at the same time as the patient blinks, his upper lip moves this is a clinical indication of the condition. The video provided on behalf of the plaintiff shows, according to Dr Spira, that every time Mr Tran blinks his upper lip moves. 258 Dr Spira said that he was with Mr Tran for over an hour (in April 2008) and did not see any volitional movement of any form. It was very much the same situation as he had observed in 2006. Dr Spira said he saw no cognitively determined movement on Mr Tran's part despite his brother and he (Spira) trying on numerous occasions. Dr Spira said that he accepted that others have seen what could be described as cognitively determined movement. Dr Spira posed the issue 'Does Mr Tran have some level of cognition or is it imagined?' 259 Dr Spira believed that it was important that Mr Tran receive more care than he was getting at the moment (April 2008). That care should be in the form of a dedicated nurse or qualified person to look after him. The staff at the Canterbury District Nursing Home have formed an attachment to Mr Tran and deal with him in an extremely friendly and caring way and the concern of the Director of Nursing about him remaining there was that there was a great deal of demand on the staff. 260 Dr Spira said that the idea that Mr Tran, who doesn't respond to a threat to his vision is watching television and actually deciding between programs is ludicrous. Dr Spira thought that the rehabilitation regime suggested by Dr Buckley was well placed for another patient, but not a man in Mr Tran's condition. He had not shown any evidence of recovery in four years. 261 Dr Spira re-iterated that there was no value in putting a cranial plate back from the point of view of cognitive function. Dr Spira saw no evidence that Mr Tran suffered from epilepsy. However, whether he does or does not it must be remembered that Mr Tran is on two major anti-convulsants which are covering him for epilepsy. To add more agents it is necessary to demonstrate some clinical manifestation which is suspected to be epileptic. 262 Dr Spira thought Dr Buckley mistook aberrant nerve reinnervation and lip moving for the possibility of seizure disorder. Dr Spira accepted that Mr Tran was liable to have seizures. There was no evidence that Mr Tran has frequent seizures or continuous epilepsy impairing day to day brain function. It was possible to do a portable EEG at the nursing home. If Mr Tran went to a rehabilitation unit and an EEG was obtained which was normal, he would be maintained on his current anti-convulsants so that the only reversible component offered by rehabilitation would be gone. Dr Spira could see no function that a speech therapist could perform in a man in Mr Tran's situation. Reliable co-operation could not be obtained from Mr Tran. A dietician is much better placed to attend to his nutrition. His nutrition plan was already in place and he is receiving adequate nutrition. He was putting on weight and was in better physical condition in 2008 than in 2006. Mr Tran was being slowly trickle-fed 24 hours a day. This minimises the likelihood of reflux and reflux pneumonia. 263 Dr Spira was cross-examined at some length. He said that he was not absolutely certain that Mr Tran had a capacity to hear, but he (Spira) suspected that this was so. 264 Dr Spira was taken to a video (Exh T) and agreed that it showed Mr Tran's eyes being closed. (There was evidence that prior to this, a command was given, "close your eyes"). Dr Spira agreed that it appeared on the video that he kept his eyes closed until the next command was given, which, on the evidence was "Open your eyes". Dr Spira agreed that the video showed Mr Tran doing so. There was evidence that the next command was "Close your eyes". The video showed Mr Tran closing his eyes. Dr Spira agreed that what had been shown on the video was not blinking and that Mr Tran was responding in a cognitive fashion to commands. 265 Dr Spira was taken to some of the Liverpool Hospital notes. He felt that some of the notes were not sufficiently informative in that they did not make clear, for example , whether the action relied upon was a reflex action or volitional, the latter being a sign of cognitive function. When referred to an entry on 6 January 2004 of "Appears tracking and more alert" Dr Spira said that if Mr Tran was truly tracking that is a sign of cognitive function. Dr Spira mentioned the necessity of consistent observation, and that of not just one person. 266 The entry on 17 January 2004 "Consistently, not following any command" suggested that Mr Tran's level of consciousness was fluctuating; the level of consciousness affects the patient's cognitive response. The entry "following commands" on 19 January 2004 is indicative of cognitive function. 267 Dr Spira said that post craniectomy and pre-cranioplasty, there appears to have been some improvement. Dr Spira was referred to some photographs of Mr Tran sitting up in a chair holding in one hand a mobile phone, wiping his face with a towel himself and agreed that these activities in the absence of any other explanation were consistent with the operation of some cognitive process. Dr Spira commented that with the insult of infection following the cranioplasty there could be many mechanisms by which there could be a regression of Mr Tran's cognitive function. One such matter could be a significant increase in intracranial pressure. (The affront of the subsequent infection appears to have contributed to Mr Tran's intracranial pressure increasing significantly). 268 Dr Spira was correctly guarded about expressing any view as to whether any further damage had occurred to the brain after the cranioplasty. He did not think he had seen any CT scans subsequent to that procedure. Any further damage may or may not be revealed by scan subsequent to the cranioplasty. 269 Dr Spira did not think that Mr Tran had ever seen himself. Nor did he have any idea where he was and it did not matter where he was from his point of view. Thus he would not be aware that he was in a nursing home with demented patients. If he was aware where he was and of the presence of demented patients that would render his present nursing home unsuitable. 270 While Dr Spira believed that the staffing levels at the nursing home could be improved to Mr Tran's benefit, he described the nursing home as one of he best he had seen and said "it's run by a lady who is clearly intelligent and has an understanding of this man's needs ... To say anything about this nursing home I believe does them a huge disservice, they are remarkable." Having heard and seen the Director of Nursing at this nursing home I agree with Dr Spira's comments. Dr Spira said that the Director of Nursing thought that the demands on her nursing staff exceeded what was reasonable. She wanted help to ease that burden. 271 Dr Spira stated that his primary role was diagnostic rather than day to day care. He accepted that there was material in the Liverpool Hospital notes that the plaintiff was obeying commands. Dr Spira stated that the plaintiff certainly opens his eyes spontaneously, but he (Spira) was not sure that the plaintiff was tracking. Dr Spira had grave doubts whether the plaintiff has vocal responses. Dr Spira agreed that if what he saw on the short video was in fact occurring Mr Tran has emerged from a chronic vegetative state. 272 Dr Spira thought that it is fundamentally wrong to suggest that Mr Tran is watching television and selecting his own programs. Dr Spira said that they (he and the older brother) literally had no responses out of Mr Tran in over an hour of trying. 273 Dr Spira accepted that in the Liverpool Hospital notes there were periods of inconsistent responses and said that during his first examination of the plaintiff, which lasted several hours, and his second examination which lasted for over an hour, there was one occasion when he (Spira) wondered whether Mr Tran was fixing on his (Spira's) face. It lasted for a few seconds, then Mr Tran's eyes were elsewhere. That was as close as he came to seeing anything that was equivocally a cognitive response. 274 Dr Spira was not aware that Mr Tran was aware of who is near him and who is not. Dr Spira did not agree that Mr Tran's responses were greater with those with whom he is familiar than with those with whom he has no familiarity, because he (Spira) was at the nursing home at the time when they were trying to get responses and his brother did not get responses. 275 Dr Spira doubted whether blinking could be regarded as a response. He added, "... if blinking is to be used (as a response) we are using something that he is doing anyway." Dr Spira accepted that if Mr Tran was able to close his eyes and keep them closed in response to a request reliably that is a cognitive response. Dr Spira thought that the suggestion that rehabilitation can achieve anything in Mr Tran who has been in his condition over four years is ludicrous. 276 Dr Spira stated that there are patients who make dramatic responses during rehabilitation but not three or four years down the track. If the best level of function at this point of time is that irregularly, and not entirely credibly, he blinks in response to questions then there is not going to be a better level of function in the future and no level of intervention of physical therapists or rehabilitationists or occupational therapists or any other therapist is going to make any difference. 277 The condition of syncinesis (aberrant nerve reinnervation) does not occur without facial nerve injury. Seizure activity is not a possible cause of the condition as the movement of the lip is time linked to blinking. 278 Dr Spira thought that if a patient is bed bound and not mobile he is likely to develop muscle contractures and a physiotherapist has an important role in ensuring that these problems do not supervene. Physiotherapy has a role to play in Mr Tran's case. He did not believe a speech pathologist has or had any role. There is no speech and the swallowing has been resolved with his PEG tubes. The doctor assumed that Mr Tran received physiotherapy in Liverpool Hospital. He did not know if Mr Tran received formal physiotherapy in the nursing home. Dr Spira observed that any carer is giving physiotherapy, including his brother who is very devoted to Mr Tran's care. He said, "the differences over that two points in time [when he had seen Mr Tran] are such that I believe I can draw the line for the rest of this man's life and that is the optimal." 279 Dr Spira did not believe that Mr Tran needs 24 hour care, but that he certainly needs full time care during the day. He should have a dedicated nurse or someone who will look after him through his waking hours. At night he needs to be turned on a few occasions. 280 Dr Spira further stated that if it can be repetitively demonstrated that Mr Tran can close his eyes for a prolonged period when asked to do so, that is an indication of cognitive function. If there is some evidence of cognitive function (which Dr Spira had never seen) it would be incorrect to describe Mr Tran as being in a chronic vegetative state from which he will never emerge. 281 Dr Spira agreed that the Liverpool Hospital notes revealed that before the cranioplasty there were various different examinations which produced no evidence of cognitive function, equivocal evidence of cognitive function or some evidence of cognitive function. 282 Dr Spira said that his prescription for Mr Tran's future did not depend on it being essential that he was in an irreversible vegetative state. It would also apply if Mr Tran was in a minimally responsive state. The irreversible vegetative state and the minimally responsive state are very close together. Mr Tran's nursing needs would not change if his current state was called "minimally responsive" or "chronic vegetative". 283 Dr Spira accepted that there has been an extraordinary deformation of the skull. After referring to the three insults to Mr Tran's brain, the last one being the cranioplasty, he continued: "... which became infected and appears to have given him yet another bout of raised intracranial pressure which, in my opinion, is the mechanism of his poor state, but if there was improvement that was taking place, it was taking place in the presence of that cranial defect." 284 In discussing the desirability of attempting another cranioplasty Dr Spira said that the optimal improvement is 20-25%. Dr Spira explained: "The real sadness with Mr Tran is he can make a 100 per cent improvement in his condition and still be in the hopeless situation he is now. So to replace his plate for a 100 per cent improvement, which has never been contemplated in the syndrome of the trephined, when we will end up with him being in exactly the same state he is now, which would be a reality at 100 per cent improvement, I don't know if its worth the risk of going through the same episode which produced his final downturn. Because no one can say that the new piece, whether it's plastic or made of anything else, is not going to become infected." 285 Dr Spira did not disagree that with cranioplasty operations there was about a 10 percent risk generally. On the basis that such an operation would not enable Mr Tran ever to speak or walk again but that the 20 per cent improvement was limited to his capacity to understand and react to his environment, Dr Spira regarded 20 per cent cognitive improvement in the plaintiff as negligible. 286 Dr Spira said that if what he saw in the short video shown in court is correct Mr Trans is responsive on very rare occasions for very brief periods. 287 Dr Spira was inclined to think that the critical issue was not how much cognitive function Mr Tran has as he is going to be totally bed bound, will have no movement and no capacity to communicate with others, if eye blinks are as good as it is going to get. He found the eye blinks unreliable. 288 Dr Spira pointed out that what had to be improved was the brain, that physiotherapists deal with limb function and that there was no evidence that rehabilitation does anything for brain function. Dr Spira added: "You can't instruct a brain to improve. Brains improve through the passage of time". Dr Spira emphasised that Mr Tran was way beyond the principle that at 2 years he was at the point of full recovery. 289 Dr Spira stated that Mr Tran has got adequate care in the sense that he is thriving for a man in his condition. He has put on weight and looked a good deal better on the second examination than the first in terms of his physical appearance. Nevertheless he could die very quickly. While Dr Spira could not exclude the possibility that Mr Tran could recover further, he regarded that possibility as remote. 290 Dr Spira thought that the main problem was contractures not spasticity. Mr Tran had fixed joints which are not going to move again. Virtually every joint was constricted. This is vey difficult to overcome. It was not muscular resistance but tissue resistance. The range of movements has gone. 291 Dr Spira stated (T610-611): "Physiotherapy in Mr Tran is exceedingly limited because we are not talking about remobilisation, he doesn't have the joint or the limbs to move on, because they are all rigid. He has no hand or arm function, no lower limb function at all, so fundamentally in that sense he had locked in, in the sense that you can draw a line across there and there is not a muscle that moves below that, other than by reflex. Above that level he has eyes, and his eyes blink, and he can move his jaw and swallow, so we have swallow function, eye blinks from time to time. The comment that' he arches his back, that is a reflex movement. This is purely reflex, none of these are willed, they are all reflex." (T 610-611) Dr Spira said that Mr Tran's limbs were absolutely rigid and that he would never recover limb function. 292 Dr Spira agreed that reflex action in a brain damaged person may be misunderstood as cognitive activity. Dr Spira did not believe that any carer (including a treater) will be able to communicate with Mr Tran to the point he can co-operate with any rehabilitation program. The minimum requirement for transferring a person to rehabilitation is that they understand instructions and respond to those instructions. 293 The defendant also called Dr Ernest Tam who holds the appointment of senior staff geriatrician through the public service. He said that he also practises as a general physician and in rehabilitation in his private practice. His specialty in study has been geriatrics and geratology, but his training and experience have involved general matters. He had extensive experience in the United Kingdom, Hong Kong and Australia. Dr Tam assessed Mr Tran on 6 September 2006 and made a report on that assessment on 7 August 2007. 294 Dr Tam described Mr Tran in his report as being in a vegetative state , conscious with eye opening but no eye contact and not obeying verbal command. Mr Tran had multiple contractures involving both shoulders, hands, hips and knees wit both feet being deformed with pressure sores.. Mr Tran's prognosis was very poor, he. did not need any specific medical and surgical treatment except when required" for relief of spasticity and for blocking VP shunts and PEG tube". The functional retina of the eyes is disconnected from the brain; he has cortical blindness. 295 Dr Tam said that Mr Tran's physical condition could not be improved, that Mr Tran did not demonstrate any cognitive activity and what was observed were primitive reflexes. Nothing could be achieved with a rehabilitation program. He explained (T619): "Rehabilitation means you have to learn, you have to have potentially reversible capacity in the brain physically or cognitively to gain through learning and he did not demonstrate all these abilities...he did not have adequate cerebral function to benefit from meaningful rehabilitation" 296 Dr Tam felt that Mr Tran did not have the immune ability to deal with the high fatality risks which may occur. 297 Dr Tam rejected the proposal that Mr Tran should be accommodated in a purpose built home. There was no indication that Mr Tran would improve if accommodated in such a home. Further, the facilities at such a home can never equal 24 hour care in a quality nursing home. There are always sudden medical conditions which require prompt attention, attendances of nurses and doctors and medical, nursing and resuscitation procedures. He added that in Mr Tran "we are talking about maintenance of life to minimise his suffering." Dr Tam stated that there was no feed back from Mr Tran as to how he suffered and that he will not produce communicative symptoms. 298 As to the suggestion that Mr Tran was able to respond to a command by moving his eyelids, such eye blinks as a response to a command have to be reproducible, reliable and consistent. 299 Dr Tam, while accepting that Mr Tran needed 24 hour care wrote that Mr Tran's care needs can be met by remaining in his present nursing home or similar nursing home and that there was no other additional assistance he would require. 300 Dr Tam thought that Mr Tran's remaining life expectancy was in the range of 2 to 5 years from 7 August 2007. 301 Dr Tam said his examination of Mr Tran lasted over two hours and that his brother was present. In cross-examination Dr Tam stated that Mr Tran will have responses but there were no cognitive elements underlying them. Whether eye tracking has a cognitive element depends on whether there is a constant repetitive response. If not, there may not be a cognitive element. If there is eye tracking it depends on whether there is a full interaction between the person and the observer. Random eye tracking carries no meaning. One observation of eye tracking is not reliable. The eye tracking has to be persistent. 302 Dr Tam, on being referred to entries in the Liverpool Hospital notes on 14 and 19 January 2004 of Mr Tran following commands had no comment to make save that observations to the same effect were no longer observable later. Dr Tam suggested that Mr Tran could have lost any cognitive response in September 2006. 303 Dr Tam did not think that Mr Tran could blink to command. He tried to have Mr Tran do so and so did his brother. Dr Tam said that while there were responses recorded in the nursing notes those responses were not cognitive ones. Dr Tam said that the position was irreversible and that it was highly unlikely that Mr Tran could ever recover. 304 Dr Tam did not agree that, if it could be demonstrated that Mr Tran closed his eyes shut to command and opened them to command, this was indicative of some cognitive faculty. 305 Dr Tam agreed that one of the factors which affects life expectancy is the cognitive response which the individual has. Unless the cognitive response is substantial the prognosis is still poor. 306 Dr Tam said that by a substantial cognitive response he meant that the person is able to comprehend, understand and execute. This involves "interactive cerebral cognitive function" and "interactive connections between all the faculties, all the eyes, ears and inside the brain". To participate in the rehabilitative process there has to be insight by the patient into what he is doing, that is "a high level of mind to participate" and also the body must have the capacity to be improved. Dr Tam thought that Mr Tran's body lacked that capacity. 307 Dr Tam said (T632) that Mr Tran's "brain had been cut off from his limbs. That is why he has got all this spasticity and that developed the contractures". The brain has been severely damaged and Mr Tran has not been able to control his four limbs. This leads to the development of contractures. With physiotherapy the contractures can be minimised but nothing can be done to reverse the spasticity and loss of power and control of the limbs due to a damaged brain (i.e. a person in a vegetative state). Dr Tam agreed that in a patient with a substantial cognitive capacity it would be worth exploring the possibilities of improvement with rehabilitation. There is some potential in an individual with spasticity for improved limb function where there is substantial cognitive activity. Dr Tam regarded the contractures that presently exist as irreversible. Dr Tam said that even if Mr Tran has interactive cognitive function his contractures, spasticity and unusable limb functions would not improve. Dr Tam said that Mr Tran has no rehabilitation potential, even if his cognitive function were intact. 308 Dr Tam was unaware that at nights there was one registered nurse on duty caring for 106 people at the Canterbury District Nursing Home. The issue of other staff on duty was not raised. Dr Tam agreed that Mr Tran needed to be turned frequently so as to prevent pressure sores developing and that this required two people. 309 Dr Tam explained that by the time he assessed Mr Tran, the information in Liverpool Hospital notes was becoming irrelevant because any indications of cognitive interaction there were not present when he (Dr Tam) assessed Mr Tran in August 2006. Dr Tam stressed that there had to be substantial cognitive interaction. It was for these reasons that he said he did not include in his report any references to the information in the Liverpool Hospital notes as to cognitive interaction. 310 Dr Tam said that he took into account the comments of the staff in the notes of the Nursing Home, but it was his judgment that even if Mr Tran had or made cognitive responses they were quite insignificant. He had not felt it necessary to refer to these notes in his report. 311 Dr Tam said that before any treatment was provided in a rehabilitation facility for the spasticity evident in Mr Iran's limbs there were two requirements, first, an assessment whether the treatment was necessary considering the harm and benefits to the person and secondly that the person had to have (substantial) cognitive capacity. Assuming substantial cognitive capacity, a course of treatment for the spasticity (including Botox injections) may ease the spasticity and may ease the contractures but it may not restore the power. There are risks attendant upon the injection of Botox. Successful treatment could relieve the spasticity and possibly the accompanying pain, but would not have any effect on recovery of the person's motor power. 312 So far as verbal commands were concerned, Dr Tam had Mr Tran's brother convey the commands. The brother spoke to Mr Tran in his native language. 313 In re-examination, Dr Tam was asked to assume that during the period November 2003 - February 2004 there were a number of entries in the Liverpool Hospital notes which indicate Mr Tran was not following commands and was not responding to directions or instructions. That assumption was justified on the notes. Dr Tam said that if this assumption was correct it was consistent with the clinical findings which he made on his examination of Mr Tran and his opinion that Mr Tran has no cognitive function. Dr Tam thought that Mr Tran was "well past meaningful rehabilitation prospects" because of the effluxion of time and the severe brain damage and its effects. That condition is permanent. 314 Mr Tam Thank Tran, the plaintiff's elder brother, first saw the plaintiff in hospital some hours after the accident and subsequently visited him every day, spending 2 to 3 hours with him. The elder brother washed the plaintiff's face, cleaned his mouth, talked to him and massaged the plaintiff when he felt sore and helped to change the nappy for him. The nurses showed the elder brother how to perform these tasks. The plaintiff was not able to get up and go to the toilet. The elder brother said that he had to change the nappies and clean the plaintiff. The elder brother said that he spoke to the plaintiff, but the plaintiff was unable to answer him in words, and that the plaintiff moved his head and his hands during his stay in Liverpool Hospital. Some five photos of the plaintiff taken about four to five months after the accident were admitted. Photo D1 shows the plaintiff holding a fan in his hand. The elder brother said he showed the plaintiff how to use a fan and that the plaintiff moved the fan to get some fresh air. Photo D2 also shows the plaintiff in a special wheelchair in a courtyard at Liverpool Hospital holding a mobile phone in his hand. The elder brother said that he gave the plaintiff the mobile phone and that the plaintiff pressed some buttons. The elder brother conveyed that he would ask the plaintiff something, eg, do you want to lie down?, and that the plaintiff would indicate on his face what he wanted, that is by screwing up his face or returning his face back to normal. 315 The elder brother said that when he handed a tissue or small towel or face cloth to the plaintiff and asked him to clean his eye, the plaintiff did so. See photos D3 and D4. In photo D5 the plaintiff is shown washing his ear (T30). 316 The elder brother said that after the' plaintiff was transferred to the Canterbury District Nursing Home he visited the plaintiff there every day up to the present time. The elder brother spent about two hours with the plaintiff on each visit. Their mother came with the elder brother every second day. The elder brother continued to perform the tasks he had done at Liverpool Hospital. At the Canterbury Nursing Home he did not have the same interaction with the plaintiff that he (the elder brother) had at the hospital; the plaintiff's condition changed. He often got sick. The records show that the plaintiff was transferred to Canterbury Hospital on a number of occasions for treatment. The elder brother said that when he talked to the plaintiff he did not appear to re-act as he did in the Liverpool Hospital. When their mother went to the nursing home she gave him a drink, collected all his dirty clothes, cleaned and washed them. This was a continuing process. She talked to him. He made little noises in reply, such as something like "or", "ar". 317 The elder brother said that he employed a system by which he communicated his requests to the plaintiff. The elder brother's evidence continued (T35): "Q: Can you describe that system. A: If I ask him a question and if I want him to say yes or no he will show me by blinking his eye. If he blink one time Yes, if he blink -- Witness: No. [ The elder brother interrupted the interpreter] A. If he blink one time it mean no and two time, it mean yes. Q: What questions have you asked him. A: Just suppose I ask him 'Do you feel cold? Do you need a blanket? Do you need a drink? Do you need some water?' Q: In response to your question what have you observed? A: So he show me by blinking his eye. If he blink once it means no, if he blinks twice, it means yes...." 318 The elder brother understood and spoke some English but his ability to understand and speak in the English language was limited. He said he understood normal conversation and added "provided it is very simple". The apparent change in the terms of the system employed was probably due to interpreter difficulties. There was a prompt correction of the misinterpretation or misunderstanding or possible slip of the elder brother. What occurred did not destroy the value of the elder brother's evidence on the point. The elder brother's evidence continued further (T3): "Q: What other ways, if there are any ... does your brother to your mind attempt to communicate with you? A: When I ask him to close his eye, he close it. If I ask him to open his eye, he open it." 319 The elder brother said that the plaintiff always responds yes or no to the elder brother's questions, except when the plaintiff was sick in the nursing home. The elder brother said that if he endeavours to clean the plaintiff's eye and he does not want this to occur he moves his head to another position. Similarly, if the elder brother endeavours to open the plaintiff's arm or his hand the plaintiff will close them. 320 The elder brother said that when he shows the plaintiff a programme on television and asks him if he liked it he will blink to say yes or no. The elder brother maintained that when he moved around the nursing home room the plaintiff's eyes follow the elder brother's direction. In cross-examination the elder brother stated that he did not say "more" (move?) around the room. The elder brother gave evidence of the plaintiff moving his head slowly on. some occasions, of an arm movement and a leg movement. From the way in which the elder brother gave his evidence, I gathered that the arm and leg movements were not extensive and that they only occurred on occasions. 321 The elder brother said that on occasions he spoke to the plaintiff in English. He used English and. Vietnamese. On the video exercise the elder brother spoke to the plaintiff in English and Vietnamese. There was some confusion about exactly when the video exercise was undertaken, that is April or March 2008 322 The elder brother agreed that when he undertook the video exercise he understood that the subject matter was the plaintiff's reactions to the elder brother's questions and he tried to show the plaintiff's reactions. The elder brother said that he did not have to do things to try to obtain reactions from the plaintiff who understood what he (the elder brother) was saying. He did not agree that he tried to wipe the plaintiff's eyes many times. The elder brother seems to have agreed that he tried once or twice but added that the plaintiff did not like it and turned around (? away). The elder brother believed the plaintiff looked up at the TV. He said the plaintiff "looks straight at me, may be look on the side it is true." 323 The elder brother said that plaintiff cannot drink out of a cup or glass. Water is put on a sponge which is on a stick. The sponge is then put in the plaintiff's mouth. 324 Ms Pariso Mukundwi, a registered nurse, had the care of the plaintiff from late July 2004 until December 2006. She became the Director of Nursing at the Nursing Home as from 1 January 2007. She said that the plaintiff does not talk, "but we talk to him and he responds in a way", and "He makes some movement and some noises, sometimes." She said that she could differentiate between his groaning when he was in pain and the noise he makes when he wants to say something. She said that the plaintiff can move his head and his eyes and that if you inflict pain on him, he moves. 325 She gave two examples of the plaintiff's responses: She said when cleaning his teeth with a sort of toothbrush he closes his mouth and bites down; if you ask him to release it, he opens his mouth and you can release the "toothbrush". This happens frequently. When flushing water through him, he makes some movements acknowledging the presence of the staff member. She said that such acknowledgments occur each time a staff member attends to him. She said that he has gradually improved over the period he has been at the home and that he was now a totally different person. 326 In the six months prior to the hearing he was more alert than previously. She said: "If you spend more time with him, you can really differentiate from the previous time ... So if you spend more time with him, you talk to him, he has got a way of responding", and 'If you ask for him to blink his eyes, he can blink'." She also said: ... if you ask him to close his eyes, he can close his eyes." 327 She disagreed that the plaintiff was totally oblivious or unaware of his surroundings because of his responses to commands. She said that with increased therapy the plaintiff had become more responsive. 328 Ms D L Lanyon has worked at the Canterbury district Nursing Home for 7 years, mostly as a recreational Activity officer (RAO) In May 2007 she was promoted to Senior Recreational Activity Officer. Her task as an RAO was to provide diversional activity. That included aromatherapy, stimulation by talking to people and by playing music to them. As an RAO she attended to Mr Tran's diversion needs. As the Senior RAO she still attends upon Mr Tran. As an RAO she estimated that two or three times per week approximately she spent approximately 15 to 20 minutes with Mr Tran. Other RAO's also attended upon him when she could not. She massaged Mr Tran, put on his TV or radio, whatever he preferred, kept him company and chatted to him. She prepared the RAO care plan. She had noted on it that he was unable to communicate verbally but responded by blinking his eyes. She had observed and noted that to answer questions she would tell him to blink once for yes and twice for no. This is the reverse of the method followed by the elder brother. She said that in her observations and experience he responded in this way. She said that when he blinked in answer to questions he held his eyes for very slightly longer than with normal blinking. Ms Lanyon gave an illustration of turning the TV on and Mr Tran liking a particular program. This may have been because of the sound. Mr Tran has a radio and indicates by blinking the stations he prefers, as Ms Lanyon switched stations 329 She said that as soon as she walks into Mr Tran's room, which he shares with two others, his eyes follow her. She had observed Mr Tran's reaction when his elder brother arrives. She said that Mr Tran's eyes tend to open much wider and he follows his elder brother with his eyes. 330 She said that it was the aim of the nursing home for an RAO to see Mr Tran every day but this was not always possible. There are 100 residents in the nursing home. She said that when she took Mr Tran out to the courtyard of the nursing home, probably about a month prior to 17 April 2008, his face "just lit up". She observed that Mr Tran's eyes "just widened like I never noticed that before from Mr Tran". She was only able to keep him outside for 10 minutes. She was not aware of him being taken outside on any other occasion. 331 In cross-examination Ms Lanyon said she had not seen the video (taken by the elder brother) of Mr Tran being asked questions. She said that when she thought about it she had noticed that there was slight movement in Mr Tran's upper lip when he blinks his eyes. This was the time when she asked about the programme he wants on the TV and/or radio. 332 I agree with Dr Spira that Ms Lanyon was bright and cheery and very friendly. She had a winsome personality and her voice conveyed enthusiasm and care. A patient would wish to respond to her. She was well able to communicate her care for and interest in the patients and residents. 333 Dr Spira cautioned against too ready an acceptance of non medical opinions; carers tend to be optimistic and relatives tend to see all sorts of things which they believe occur whereas they do not in fact occur. Reflex actions are taken to be representations of responses and recovery. Dr Spira believed that everyone treating Mr Tran at the nursing home and his family "would dearly love to see him recovering but they are talking about four years plus after the event and they are waiting for miracles..." It was a theme of Dr Spira's evidence that time was the great healer but after four years little further improvement could be expected or was likely. Cognitive Function 334 Issues were raised as to the extent of the cognitive function of the plaintiff in late 2003-early 2004, in 2006 and in 2008. 335 The Liverpool Hospital Notes revealed that before the cranioplasty operation (27 Feb 04) there were various different examinations which revealed no evidence of cognitive function, equivocal evidence of cognitive function or some evidence of cognitive function. Dr Spira felt the notes were not sufficiently informative as to Mr Tran's responses, some of which were arguably reflex actions. 336 There was the possibility that the extra cranial pressure which built up after the cranioplasty and the infection could have worsened Mr Tran's condition. There was evidence of a degree of recovery prior to the cranioplasty. 337 Dr Buckley attached weight to the observations of various staff members in the nursing home, the Liverpool Hospital Notes and the DVDNideo of the plaintiff's responses to his elder brother. 338 The elder brother produced five photos (D1-5) of the plaintiff at Liverpool Hospital taken about 4-5 months after the accident. It is not clear whether they were taken before or after the cranioplasty. They show the plaintiff undertaking activities and probably possessing some cognition of the activities being undertaken. The evidence of the elder brother as to the instruction and/or requests issued to the plaintiff supported the case of the plaintiff having some cognitive function. 339 In the latter half of 2006 (September-October) neither Dr Tam nor Dr Spira could, despite trying and using the elder brother, elicit a cognitive response from the plaintiff. 340 In 2008 Dr Spira, despite trying for over an hour and using the older brother, could not elicit a cognitive response from the plaintiff. 341 Ms Mukundwi and Ms Lanyon were impressive independent witnesses who had observed Mr Tran over a number of years and their descriptions of what they had observed cannot be put to one side. The elder brother was devoted to the plaintiff and assisted where he could. It is probable that the plaintiff would respond more readily to Ms Mukundwi and Ms Lanyon than either of Drs Spira and Tam, even allowing for his brother being present. If the elder brother were on his own or with his mother it is probable that the plaintiff would respond more readily. Dr Buckley's experience was that patients responded more readily to their relatives and carers. Dr Buckley did not suggest that there an indication of good cognitive function but an indication that the plaintiff does have some comprehension and was able to express some desires. However, I do not find that the responses of the plaintiff to his elder brother were regular and consistent. The response of the plaintiff to his carers probably occurred when they were engaged in caring for him and his needs in concentrated periods. 342 In my opinion the correct finding is that the plaintiff responds on some limited occasions to the questions, commands and requests of his carers and members of his family. On other occasions he does not respond to the questions commands and requests, especially if emanating from people (including doctors) whom he does not know. It is probable that the plaintiff is able to hear reasonably well what is said to him and what is said on the radio and the TV when they are switched on in his near vicinity. It is probable that the plaintiff relies principally on what he hears and perhaps to some extent, on what he senses. It is probable the plaintiff has very restricted vision. It may not be useful. I do not accept that he can effectively watch TV or effectively watch people moving around his room. He is probably conscious of people being in his room and moving around. Cranioplasty 343 Dr Buckley thought that if a cranioplasty could be successfully performed the likelihood of it making a significant improvement in the plaintiff's condition physically and cognitively was somewhat more than 50 percent. Dr Buckley acknowledged that there was quite a high risk that the plaintiff would not improve. 344 On the other hand, Dr Spira thought that such an operation, if successful, would only have a cosmetic benefit and would not materially advance the plaintiff's well being. He was not in favour of the proposal and gave strong reasons for his opinion with which I agree. When he discussed it with the plaintiff's mother and brother they did not favour the proposed further operation. 345 I am not persuaded that the proposed cranioplasty is desirable or reasonable nor that it will materially advance the plaintiff's well being. Rehabilitation 346 As to physiotherapy, Dr Buckley in his report of 15 October 2006 wrote that the plaintiff "will require regular [monthly] review by a Physiotherapist who will train and correct,his carers in chest management and contracture management for range of movement exercises". This appears to relate to the period after the plaintiff had spent about 12 months in a private rehabilitation hospital as does the similar recommendation in his report of 13 March 2008. 347 Dr Buckley thought that irrespective of whether the cranioplasty is performed the plaintiff should have more active intervention medically for his spasticity as it is very severe and spasticity is very similar to pain for people in the plaintiff's position. 348 Mrs Mukundwi said that with increased therapy, she had noticed that Mr Tran became more responsive. The Physiotherapy Assessments (Ex 8) of 16 May 2006 and 18 July 2006 (completed on forms headed Initial Assessment Form) record that Mr Tran is non-responsive to verbal commands and that he is immobile. They prescribed daily passive upper and lower limb exercises and daily repositioning every 2 to 3 hours. The aim of the treatment was to prevent further contractions to upper and lower limbs and to prevent cardiopulmonary complications. The assessment of 18 July 2006 also prescribed "to wear splints on upper limbs". The Reviews of 19 September 2007 and 14 January 2008 recommended physiotherapy 3-5 times per week. Both contained the notation that Mr Tran was "non responsive to verbal commands". 349 Dr Spira's view was that spasticity was not the principal problem but that the principal problem was the extent of the contractures. The limbs were rigid and would never be moved again. The resistance was not muscular resistance but tissue resistance and to overcome this is very difficult. Dr Spira said, "Physiotherapy in Mr Tran is exceedingly limited because we are not talking about re-mobilisation". 350 Dr Tam said that any treatment, which may include Botox injections, may ease the spasticity and the contractures but it may not restore the power to the limbs. Sometimes treatment can do the person harm (T. 640). Dr Tam regarded the contractures that presently exist in Mr Tran as irreversible. 351 Both Drs Spira and Tam thought the plaintiff had no rehabilitation potential. They did not refer to operative intervention for the contractures. Dr Buckley contemplated that possibility and furnished estimates of costing for such an operation (attachment 6 of 1 February 2007). From Dr Buckley's 15 October 2006 report (P.8) the question of possible operative intervention for joint contractures arises if there is some significant cognitive improvement. That will probably not occur. At T 534 Dr Buckley gave this evidence as to medical management of the plaintiff's spasticity: "Well in his case I would start with oral medication and the physiotherapy management. Given the severity of the condition as it stands, it is unlikely that will resolve some of the severe contractures that he has, but it would identify whether, for example, one should proceed to operative intervention to correct some of those contractures. And generally one would hope that one could achieve flexibility of arms and legs to allow reasonable positioning in bed, perhaps even a seated positioning simply to allow some alteration in posture and some general comfort of posture". This seems to proceed upon the premise that the plaintiff would start to show significant cognitive improvement. 352 The physiotherapy review of 14 January 2008 contained in the records of the Nursing Home recommended physiotherapy 3-5 times per week. Further stiffness developing should be prevented and the existing stiffness in Mr Tran's joints should be managed. Both propositions are correct. Ms Mukundwi thought that Mr Tran's physiotherapy needed to be done by a trained physiotherapist possibly 4-5 times per week. I have placed weight on Ms Mukundwi's observations that with increased therapy the plaintiff becomes more responsive. 353 In view of Dr Tam's cautions about the harm that can be done in treating someone in Mr Tran's condition, Ms Mukundwi is probably correct when she expressed the view that the physiotherapy needed to be done by a trained physiotherapist. On the evidence there should be the limited physiotherapy envisaged for 3 months, 4 times per week by a trained physiotherapist and thereafter monthly supervisory visits by a trained physiotherapist to ensure that the plaintiff is being correctly treated. 354 In attachment 1 of 13 March 2008 Dr Buckley refers to physiotherapy fees for a consultation in the home of $140. I doubt whether that fee should be applied to the treatment of the plaintiff in a nursing home for 3 months, 4 times per week. The physiotherapist may well have other patients at the nursing home. Neither of the parties suggested the course which I think should be followed. On the evidence I cannot make a sensible assessment of the cost and I will allow both parties to lead further evidence on the limited issues mentioned, that is, the cost of physiotherapy treatments for 3 months, 4 times per week and thereafter of the monthly supervisory consultations. The physiotherapist would direct the attendant carer. 355 In my opinion it is not reasonable to place the plaintiff, in his present condition and with the lapse of time, in a private rehabilitation hospital for 12 months from the present time and take the course recommended by Dr Buckley. It would not serve a useful purpose. The plaintiff's cognition is insufficient. If that course had been taken in late 2004 or 2005 or possibly 2006 that may have been warranted. From 2006 to 2008 it appears that the contractures have probably intensified with the extended periods of being confined to a bed. Epilepsy 356 In Dr Buckley's initial diagnosis he thought that as at October 2006 there was a reasonable presumption that he was "in status epilepticus and seizing either permanently or intermittently". 357 Dr Spira thought that Dr Buckley mistook aberrant nerve reinnervation and lip moving for the possibility of seizure disorder. The two doctors proceeded on different premises. Dr Buckley was not aware of any facial nerve damage whereas Dr Spira, while conceding there was no evidence of any facial nerve injury, believed, correctly, that such damage must have occurred as there is no other mechanism for what he had seen. 358 At T. 579 Dr Spira said: "I am told he has had occasional seizures. The fact that he is liable to have seizures is undeniable, that's why he is on anti­convulsants to try and prevent that phenomenon but the fact he is having seizures as we speak or that he has got continuous epilepsy impairing day to day brain function...there is no evidence for...He has already had an EEG that demonstrated that he wasn't having epilepsy...and that was at the time [in April 2004 in Liverpool Hospital] when he was more likely to have epilepsy than he is now..." 359 Dr Buckley said that the April 2004 EEG was quite irrelevant and unimportant to the diagnosis of epilepsy in 2006. Dr Spira said that the matter could easily be resolved by having another EEG done. 360 I am not satisfied that the plaintiff was in status epileptus at any time from 2004 to April 2008. I accept that the plaintiff is liable to have seizures. He is on anti-convulsant medication to prevent that phenomenon. That medication appears to have been effective. I do not think that he needs the treatment suggested by Dr Buckley. Purpose built House and Home Care 361 Dr Buckley recommended that the plaintiff be accommodated in a purpose built house with accommodation for a house couple, one member of whom was a registered nurse. His heavy nursing requirements are physically more than could be managed, by a single carer. The accommodation for the couple should include a separate bathroom and a small sitting area. The house should also have guest rooms appropriate for relief carers or family to stay over. 362 The house couple, after appropriate consultation, would be responsible for the development and realisation of an activity program throughout the week designed to stimulate and encourage Mr Tran, both cognitively and physically. 363 Dr Buckley's description of the plaintiff's present accommodation was not flattering. However, the defects were more than balanced by the care he received from the staff at the nursing home, despite their many other demands. 364 Dr Buckley's reasons for advocating a purpose built house were as follows: (a) Aged care nursing homes are inappropriate environments for younger people- this is accepted across all levels of Government and the medical profession. The interests of the two groups differ markedly as do the activities that attract them. (b) The amount of nursing care available within a nursing home is insufficient to appropriately manage a person with Mr Tran's level of impairment and disability. Pressure sores should be prevented. (c) His environment should be attractive. He should be able to be taken outside the house. (d) The domestic arrangements should be to his liking, for example his meals, feeding and his bathing (showering). (e) An activity program designed to stimulate and encourage Mr Tran could be readily devised and implemented. This could utilize the resources available to Ms Tran in his own home and the greater potential for supervised outdoor activities. 365 Dr Spira rejected the suggestion that the plaintiff should be moved to a purpose built home for these reasons: (a) The plaintiff could gain no benefit from such a transfer as he was and would remain totally oblivious of his surroundings. (b) The plaintiff is incapable of any form of social interaction and an outing is of no value to him and would be medically contra-indicated. (c) The plaintiff is essentially unaware of even himself. (d) It would place an unfair burden on his family as they would be forced into the position of being his primary carers, albeit with a great deal of assistance-this is not justified when Mr Tran is not aware of his surroundings. (e) The best the plaintiff can hope for is maintenance of the status quo; deterioration is expected irrespective of where care is provided. 366 Dr Tam also rejected the proposal that Mr Tran should be accommodated in a purpose built home. He stated that there was no indication that Mr Tran would improve if accommodated in such a home. The facilities at such a home can never equal 24 hour care in a quality nursing home. There are always sudden medical conditions which require prompt attention. 367 Ms Mukundwi envisaged the transfer of Mr Tran to another facility that was better for him: The nursing home primarily cared for aged persons and it had limited resources. She felt that there were some areas that were not being addressed properly. She instanced physiotherapy. Ms Mukundwi thought that Mr Tran could "benefit from better than the treatment he is getting" (T 247). She referred to a number of procedures which should be carried out every day and were not including: (a) music therapy; (b) showing of Vietnamese videos, DVD's; (c) some massage to the plaintiff's feet and hands. 368 She stated that the Nursing Home did not have the staff to cope with all the needs of the residents and that the Nursing Home did not have enough special chairs for Mr Tran to be placed in one every day. He was not taken out into the courtyard every day to experience the fresh air. She explained that with additional staff there is more communication with the plaintiff and that this is advantageous. She said that if a special chair was provided for Mr Tran at the Nursing Home that would be welcomed as would full time persons to care for him 24 hours per day. Such persons would have to be cleared by the Police and be acceptable to the Nursing Home. She thought that the requirements would be satisfied by an Assistant in Nursing. A registered nurse would still be available to attend to Mr Tran as needed. 369 I think that Dr Spira is probably correct in his assessments that the plaintiff does not have any idea where he is, that it does not matter where he is from his point of view and that he was totally unaware of himself and his surroundings and still is. Dr Spira's assessment is further supported by the Eyesight Report of 16 August 2004 by the optometrist. That report records that Mr Tran has difficulty seeing small objects and has no useful vision. The optometrist has noted that Mr Tran's side vision is normal. Both Drs Spira and Tam thought that the plaintiff suffered from cortical blindness. 370 I have had regard to the integrated notes of the nursing home from 10 February 2006 to 1 April 2006, in November and December 2007 and from 7 to 12 January 2008. These record treatment given by various members of the Home's care team. Amongst others, there are references to physiotherapy, massages, aromatherapy and music therapy, full assistance with all daily living activities (ADL) his feeding and nutrition and administration of medication. There is a reference on 28 March 2006 to Mr Tran's limbs becoming "more stiff' and "muscle strengthening exercise to upper and lower limbs for 30 mins". 371 It is not the case that Mr Tran's needs and condition were ignored. Ms Mukundwi's point was that more should be done for him and that the Nursing Home did not have the staff or the resources to do so. Dr Spira thought that the plaintiff should receive more care and recommended additional assistance. 372 It is unfortunate that the Community does not have adequate facilities to care for younger people who have suffered grievous injuries and that after their discharge from Hospital they are accommodated in aged care nursing homes. This Court has to do the best it can with the facilities which exist. Perhaps, in the future, there will be more suitable facilities. The solution in the present case is not to accommodate the plaintiff in a purpose built home but to provide sustained additional assistance in a nursing home, Dr Spira envisaged engaging a registered nurse. Ms Mukundwi thought that an Assistant In Nursing would suffice with a registered nurse being available as required. Such assistance should be available during the plaintiff's waking hours, that is, from 6am to 10.OOpm. That would lead to the engagement of two assistants in nursing one from 6am to 2pm and one from 2pm to 10pm on weekdays and also on weekends. I do not accept that less is required. The plaintiff has heavy needs and requires the assistance I have stipulated otherwise intolerable burdens will be placed on the Nursing Home staff and the plaintiff will not receive the attention and assistance he needs. The attendant carers or assistants in Nursing will be able, amongst other things to assist with and, ultimately under supervision, carry out the exercises recommended by the physiotherapist and carry out the procedures and therapy suggested by Ms Mukundwi (T 247). Importantly, they will also be able to spend time with the plaintiff. Life expectancy 373 As earlier mentioned in his report of 13 March 2008, Dr Buckley wrote as to Life Expectancy "Opinion to be deferred pending outcome of rehabilitation and medical programs". That is an understandable approach. Dr Buckley hoped that his recommended courses of action would result in significant improvement in the plaintiff's health. 374 In his report of 26 March 2007 Dr Buckley suggested a life expectancy of 91% of the years that normally remain if the plaintiff received the management that Dr Buckley advised (and presumably responded as Dr Buckley hoped). 375 I have not been able to agree with the major steps proposed by Dr Buckley, that is, 12 months in a private rehabilitation hospital including a cranioplasty and accommodation in a purpose built home. I thought that Dr Buckley was unduly optimistic about the plaintiff's prospects of recovery. 376 Dr Buckley did not express a view as to life expectancy if the plaintiff did not receive the management Dr Buckley proposed but received the management indicated in these reasons. As mentioned, Dr Buckley agreed that there were a number of factors that tended to reduce life expectancy including little or no physical activity, absence of motor function, inability to self feed and inability to use any hand or arm function and possibly to a slight degree inability to communicate. Usually what kills people in Mr Tran's situation is pneumonia. Also as earlier mentioned, Dr Buckley thought that if there was no change in the plaintiff's management, his life expectancy would be much less than the 91% suggested. Dr Buckley stated that if Mr Tran stayed in the Canterbury Nursing Home his life expectancy would be 15-20 years, but that a person in his condition could easily die almost any time. 377 In his report of 13 November 2006 Dr Spira estimated Mr Tran's life expectancy to be of the order of 5-7 years. Dr Spira had earlier referred to the risks faced by the plaintiff including aspiration pneumonia and significant infections requiring intravenous antibiotic therapy. 378 In cross examination Dr Spira said that, to some extent, his life expectancy estimate of the plaintiff was dependant on an absence of cognitive responses. It was an important part of the equation as were his absolute immobility and depending on others for all aspects of care. 379 Dr Tam's estimate of the plaintiff's life expectancy was 2-5 years from 7 August 2007. 380 In my opinion Dr Buckley's estimates do not sufficiently allow for the permanent parlous condition of the plaintiff and the risks he faces. Dr Tam's estimate took into account, "a bad run of severe brain injuries multiple contractures...over four limbs and multiple episodes of aspiration pneumonia infection...and other life threatening complications...". He relied on these and other high fatality risk complications which may occur at any time. Dr Tam had not seen the plaintiff since September 2006. His physical condition has improved since then and he has continued to survive. Dr Spira was aware of the devotion of the plaintiff's mother and brother and the practical help they gave. 381 In my opinion considerable allowance has to be made for that valuable assistance. I would infer from the evidence of the elder brother and Ms Lanyon that the plaintiff is probably aware of the general support of his mother and brother but not the details and also the support of his carers but again probably not the details of that support. His awareness and appreciation may well fluctuate. 382 I have considered the opinions of the doctors. It is 5 years since the accident occurred. The plaintiff has proved to be a survivor in very difficult circumstances. Whilst fully appreciating the serious risks to the health of the plaintiff but based upon the improvements of his physical condition since late 2006, his demonstrated power of survival, the continued support of his brother, his mother and his carers and the proposed appointments of additional carers I would estimate his life expectancy at 9-11 years and take a mean of 10 years from the date of this judgment. Loss of Earning Capacity 383 The defendant accepted that the plaintiff has no earning capacity and never will have any such capacity. As pointed out in Norris v Blake (No.2) (1997) 41 NSWLR 49 at 64 the relevant head of damage is the loss of earning capacity. The plaintiff has proved a substantial diminution in earning capacity which has been and will be productive of financial loss. The defendant submitted that the appropriate approach in assessing the damages for his impairment of earning capacity is to apply the wages which he in fact earned with some slight increase for the future having regard to the possibility that wage rates would increase. 384 Mr Tran commenced employment at Star City Casino in September 1999 as a kitchen hand washing dishes, pots and pans and cleaning the kitchen. He became a cocktail server-casual in the Food and Beverage Department of Star City effective from 2 October 2000. He was confirmed in this position effective from 30 October 2000. Mr Gush of Star City said that he commenced employment with Star City Casino in August 2000 as a bar attendant. Mr Gush was appointed as a Beverage Supervisor and subsequently to the position of Assistant Food and Beverage Manager. On occasions, probably at least four times per week, he worked on the same shifts as Mr Tran. Mr Gush said that Mr Tran had moved from a back of house position to a front of house position where he inter-acted with customers and dealt with cash. He had to have a good grasp of the English language and had to comply with and administer the Casino's responsible service of alcohol policy. Mr Tran also had to administer any responsible gambling issue that may arise in his position. 385 In March/April 2001 Mr Gush was appointed to the position of Beverage supervisor. Mr Tran fell under Mr Gush's supervision for about just over a year. Mr Gush said that Mr Tran did his work well, and importantly, his customer service was very good. He worked well unsupervised which was important. Mr Gush said the level of tipping of bar attendants and cocktail servers was a minimum of between $100-and $150 per week. 386 The written terms of the plaintiff's employment, as specified in Star City's letters of 31 August 2000 and 26 October 2000 included: Base salary- $25,111.0080 per annum plus shift loadings dependant on the hours worked. The salary was based on working 76 hours per fortnight. There was a base rate of $12.7080 per hour. 387 The letters stated that Mr Tran was to report to the Beverage supervisor. The pay records of the plaintiff as a cocktail server for the period of 13 October 2000-13 November 2003 show that he received - Gross Wages Net $98, 135.33 $76, 227.68 This works our on a yearly basis to approximately: Gross Wages Net $31,000 $24, 000 388 Mr Gush said that if Mr Tran had continued to work as a cocktail server his base salary would have been $28,500. Shift loadings and penalty rates would have to be added. Mr Gush produced records of the parent company showing that the ordinary hourly rate for a bar attendant/cocktail server at Star City had risen in March/April 2008 to $17.01 per hour. There were no corresponding figures for the years between November 2003 and March 2008. In August-October 2000 the base hourly rate was $12.7080. I have proceeded on the footing that the base rate is what is later described as the ordinary hourly rate. The increase over 5 years is between 33 and 34 per cent. 389 The plaintiff relied on these figures of his earnings: Period Total Nett Earnings Average Nett per week 30.6.00 – 28.6.01 $25, 369 $487 29.6.01 – 27.6.02 $23, 627 $455 28.6.02 – 26.6.03 $25, 112 $482 27.6.03 – 11.12.03 $11,110 $465 390 Mr Gush produced the records of three employees of Star City (Tabcorp, being the parent company which handled the wages). Two of these employees were bar attendants and one was a cocktail server. Bar attendants and cocktail servers are paid the same wages and do shiftwork. 391 The plaintiff relied on this analysis of the pay records: Period Bar Attendant Cocktail Server Bar Attendant Year 1 (KOOL) (Guo) 2 (Madigan) Average Ended 26.6.03 $499 nett p.w $527 nett p.w - $513 Year Ended 24.6.04 $558 nett p.w $544 nett p.w - $551 Year Ended 23.6.05 $527 nett p.w $568 nett p.w $547 22.6.06 $537 nett p.w $551 nett p.w $544 23.6.06 – 23.11.06 $591 nett p.w $589 nett p.w $590 Fortnight ended 23.3.08 incl. Easter weekend $755 nett p.w $739 nett p.w $739 $744 Fortnight ended 6.4.08 $650 $619 $759 $676 392 There are two major difficulties in using amounts paid to other cocktail servers and bar attendants. First, the number of hours worked may not co­incide. Secondly, the shifts worked may vary. The hourly rate payable varies according to the shift worked. The records of the amounts paid to the three employees cannot be used directly. These employees and the amounts paid to them are not directly comparable. At best they amount to no more than a general guide of the amounts that could have been earned by the plaintiff. For the year ended 26 June 2003 the plaintiff earned $482 per week net whereas bar attendant 1 earned $499 per week nett and the cocktail server $527 nett per week, the mean being $513. For the period 27.6.03 to 11.12.03 the nett earnings of the plaintiff are shown as $465 nett per week. The payment made on 11 December is unusually large and there is no explanation for this. I doubt if this should be taken into account. For the year ended 24 June 2004 bar attendant 1 earned $558 nett per week and the cocktail server $544 nett per week. 393 The assessment of the nett weekly earning capacity of the plaintiff from 15 November 2003 onwards is a matter of some difficulty. There is a danger in taking a period of less than one year. The busy and the less busy periods have to be taken into account and an average struck. The period of 27.6.03 to 15.11.03 may, on the whole, be a less busy period. When considering the period 15.11.03 to 24.6.04 it is necessary to take into account the festive and holiday season of mid December to mid January, the Easter holidays and possibly the Queen's birthday weekend and holiday. I think it is probable that on average the plaintiff would probably have earned on average $470 nett p.w for the period 15.11.03 to 24.06.04. 394 For the period from 24.6.04 to 23.6.05 Bar Attendant 1 earned $527 nett p.w and the cocktail server $568 nett p.w. The plaintiff in earlier years tended to earn a little less than they did. Allowance also has to be made for inflation and the general increase in wages. While there is evidence of the plaintiff showing enthusiasm for his work it is not clear how many hours he wanted to work and how many hours would have been available to him and on what shifts. For the 12 months from 24.6.04 to 23.6.05 I should proceed on the basis that he would probably have earned $500.00 nett p.w. For the year from 23.6.05 to 22.6.06 bar attendant 1 earned $537 nett p.w. and the cocktail server $551 nett p.w. When a mean is taken there was a drop of $3 per week in the earnings of bar attendant 1 and the cocktail server from the year ended 23 June 2005 to the year ended 22 June 2006. Some allowance should be made for inflation and the likely increase in the wages paid. For that year I propose to proceed on the basis that the plaintiff would probably have earned $510 nett p.w. 395 For the period 23.6.06 to 23.11.06 bar attendant 1 earned $591 nett p.w and the cocktail server $589 nett p.w. Again undertaking the exercise previously mentioned I would proceed on the basis that the plaintiff would probably have earned $540 nett p.w during the period mentioned. There is little evidence of the position between 23.11.06 and November 2008. As the Table earlier set out shows bar attendant 1 and the cocktail server received greatly increased remuneration for the fortnight ending 23 March 2008 (including Easter weekend) and increased remuneration for the fortnight ending 6 April 2008. A twelve month period is a better guide as the highs and lows tend to even out. The ordinary hourly rate had increased to $17.01 by March 2088-1-pfeee€d on the basis that about 23 November 2006 the plaintiff would probably have earned $570 nett p.w. if he had continued as a cocktail server. It may well have been more but the evidence does not allow me to so conclude. The increase in the hourly rate from $12.7080 to $17.01 amounts to an increase of $4.3020 which is between 33 and 34 per cent. It would be incorrect to apply $570 nett p.w. to the whole of the period from 23.11.06 to the present. It would be appropriate to apply the rate of $570 per week from 23 November 2006 to 30.06.07 and from 1.7.07 to date a rate of $600 per week. 396 Mr Gush said that the drink waiters (cocktail servers) and the bar attendants are not salaried employees. If they do not turn up for a shift they are not paid unless there is relevant reason, for example, production of a medical certificate, a funeral, compassionate leave, in the case of full time employees. On the other hand, the Supervisors are salaried employees. 397 There was a contest whether Mr Tran, if he had remained with Star City, would have become a supervisor. He had never applied for the position of supervisor and he would have to wait for a vacancy to occur. As at November 2003 he had worked as a cocktail server for just over three years. There was no evidence that he wanted to become a supervisor. Since 2003 vacancies for supervisors had occurred. They had been filled from the ranks of the bar attendants and people working in positions such as that of Mr Tran. 398 Mr Gush indicated that Mr Tran would have been eligible to apply for the position of supervisor and his application would have been considered along with those of the other applicants. Mr Gush said: "It is very subjective as to exactly whether he would have filled the position but he was an ideal candidate to apply. He had all the attributes, the work ethic and the personality to be seriously considered for the position". 399 Mr Gush added that there are a lot of employees who are ideal candidates but sometimes they are not interested. 400 Mr Gush said that Mr Tran's TAFE trained hospitality qualification was an advantage. Mr Gush said that if Mr Tran had had four to five years experience as a cocktail server and had applied at that point for a supervisor's position Mr Gush would have supported Mr Tran's application. Mr Gush described his role in the decision making process as very important. He said that if he wants someone he usually gets them. He agreed that the ultimate decision was made by the Food and Beverage Manager and an officer from Human Resources. 401 Counsel for the defendant placed great weight upon the plaintiff being verbally counselled on two occasions. On 24 February 2001 he was counselled for not providing medical certificates for 17 sick days (7 Sundays, 10 Saturdays and 6 after RDO's). There were 21 sick days in 11 months. This probably included part of the period the plaintiff worked as a kitchen hand. He also failed to provide a minimum of 2 hours notice prior to shift of being unable to attend. 402 He was required to provide a doctor's certificate for sick days and a minimum of 2 hours notice prior to shift when unable to attend. The trend of absenteeism was to cease immediately. He received the usual warning if there were any further breaches. 403 The plaintiff received verbal counselling on 12 November 2003. Apparently on 8 November 2003 he was asked by his supervisor to go to Star City Lounge and refused to go. It is recorded on the Counselling form that he would accept any reasonable request from his supervisor or manager and that if he had any queries about his duties he should ask and that he could contact a nominated person by phone if he had any problems. It was further noted, that he should carry his 'work to back form' with him at all times on shift. He was given the usual warning if there were any further breaches. 404 The reference to "work to back form" may be a misnomer. One possibility is that Mr Tran declined to do what he was asked and did not have his "back to work form" indicating a restriction with him. What has been written in the counselling form is less than comprehensive. Mr Gush did not regard these instances as standing in the way of the plaintiff's promotions. It was apparent that Mr Gush attached prime importance to the plaintiff's customer service being very good. Next was his ability to work unsupervised. 405 It is probable that those making recommendations and selection decisions would concentrate on the positive features that they regarded as important to advance Star City's business interests, for example, very well serviced customers spending their money. While not ignoring past deficiencies of the kind revealed in the counselling forms, the recommending officer and the selection panel were unlikely to give them great weight. It was evident that Mr Gush thought highly of the plaintiff's skills and the plaintiff. It is probable that the selection panel would have acted on Mr Gush's recommendation as the plaintiff, if appointed as a supervisor, would have come under Mr Gush's control and reported to him as his immediate supervisor. It is probable that if the plaintiff had applied for a position as a supervisor after Mr Gush was appointed to his present position in 2007 the plaintiff would probably have secured a position as a supervisor if he had applied. I am not able to make a finding as to what would have occurred prior to Mr Gush's appointment. I am not satisfied that the plaintiff would have been promoted prior to 2007. 406 The more difficult question is whether Mr Tran would have applied for a position as a supervisor. Accepting, as I do, the evidence that Mr Tran's customer service was very good and that his work skills were good, it is probable that his income from tips was substantial. He might have preferred to remain as a cocktail server. The evidence does not enable me to say whether the plaintiff treated the whole or any part of his tips as taxable income. I make no assumption as to this. 407 The plaintiff relied on the net weekly salary paid to two Beverage Supervisors (based on the data contained in Ex AE). The nett weekly salaries paid were: Salary Beverage Beverage A June 2006 $744 $772 $758 September 2008 $766 $795 $780 408 That represents a substantial increase on the salaries earned in the period 23.06.06 to 23.11.06 by the bar attendant and the cocktail server of an average of $590. I did not regard the figures for the period ending 23 March 2008 (including Easter weekend) as being a reliable guide to the average nett weekly earnings of a bar attendant/cocktail server. 409 If I am correct in taking and applying a figure of $600 nett per week from 1 July 2007 to date that leaves a difference of $158 nett per week to $180 nett week between the nett salary of a cocktail server and a supervisor. To bridge the financial gap would require a high level of tipping, especially if the tips were included in the recipient's taxable income. Much may have depended on the level of tipping obtained by the plaintiff and of the amounts received from this source whether he applied to become a supervisor. The hours which the plaintiff wished to work would also be relevant. 410 I am not persuaded that the plaintiff would have sought the position of a supervisor. He may have. He had not made an application as at November 2003 but I do not regard that as important because by that stage he had only been a cocktail server since October 2000. The matter has to be assessed objectively. While the financial incentive to seek a position as a supervisor would appear to have been strong it is difficult to draw a positive conclusion on this point in the absence of evidence as to the amounts received by way of tips and their taxation treatment. The plaintiff had been with Star City for four years. There was no evidence suggesting that he was not going to stay there. According to the elder brother (T 25) the plaintiff enjoyed his job at Star City serving drinks and was happy to work there. 411 As to calculating the plaintiff's loss of earning capacity for the future I think that the base figure which should be used is a loss of $660 nett per week. He was born in 1970 and I would assess his future loss of earning capacity as extending over 27 years, that is from age 38 to age 65. 412 That includes the sum of $600-nett per week earlier mentioned earlier and $60 per week nett for tips. I have taken a figure of about $100 per week for tips, and reduced it to $60-nett per week to. allow for it being included in the plaintiff's taxable income. It may be that the figures I have selected are on the low side but I do not think that that evidence safely permits me to select higher figures. 413 I propose to adjust the figures to correspond with the financial years. The following should be allowed in respect of past loss of earning capacity: a) 15.11.03 to 30 June 2004 32 weeks (less the first five days) at $470 nett per week $ 15 040 b) 1.7.04 to 30.6.05 52 weeks at $500 nett per week $ 26 000 c) 1.7.05 to 30.6.06 52 weeks at $510 nett per week $ 26 520 d) 1.7.06 to 23.11.06 21 weeks at $540 nett per week $ 11 340 e) 24.11.06 to 30.06.07 31 weeks at $570 nett per week $ 17 670 f) 1.7.07 to 28.11.08 74 weeks at $600 nett per week $ 44 400 g) One bonus payment $250 Total $ 141 220 414 As to future loss of earning capacity I propose to use a figure of $660 nett per week and a period of 27 years. This produces a figure of $516, 780 using the 5% multiplier tables ($660 x 783). I deduct 15% for the vicissitudes of life resulting in a figure of $439, 263. I have adopted the conventional figure of 15% because that is the appropriate figure in this case. Inter alia, the plaintiff was employed in a casino and was not a salaried employee. His very good customer service and his good ability to work unsupervised would tend towards his being kept on in tough financial times. He was unlikely to leave Star City as he was happy there. 415 I have not allowed anything for future bonuses as their payment is problematical and depends on a number of factors including meeting customer service requirements targets for the workforce as a whole and probably the financial well being of the business of the employer. There was very little evidence about the payment of bonuses. They do not appear to be substantial sums. Non Economic Loss 416 Both parties accepted that if the plaintiff is to receive damages the maximum amount of $381, 000 that can be awarded under s. 134 of the Motor Accidents Compensation Act (1999) (NSW) should be awarded for non- economic loss. Domestic Assistance and Past Gratuitous Care 417 From 15 November 2003 to 25 July 2004 the plaintiff's elder brother attended daily at Liverpool Hospital for 2 hours per day and assisted with the plaintiff's care. He was shown what to do by the nurses. His mother attended every 2nd day and also assisted. This involved a long train journey each day. 418 Since 27 July 2004 the plaintiff's elder brother has attended daily on the plaintiff at the Canterbury District Nursing Home (and also Canterbury District Hospital) for 2 hours per day and assisted with the plaintiff's care. Initially he travelled there by train, the journey taking about 1 and a half hours. He bought a car for about $500- and drove from Bourke Street, Surry Hills. His mother went with him every second day. She took the plaintiff's dirty clothes back home and washed them. She also talked to him. With the limitations on staffing at the nursing home, the care of the elder brother and the mother was valuable, and probably essential. 419 The plaintiff claimed re-imbursement for 1 hour of time spent driving by his brother from Surry Hills to Canterbury and return. Those journeys each day across a large part of Sydney would have taken more than 1 hour. A claim of travel time of 1 hour per day 7 days per week for the period of 26 July 2004 to 28 November 2008, that is 226 weeks is reasonable. 420 There was also a claim for the time spent at the Nursing Home by the plaintiff's elder brother providing gratuitous attendant care of 2 hours per day. 421 In both cases the rate sought was $21.50 per hour. The amount awarded is determined by the market value of the services rendered. There is no direct evidence of such market value. 422 It seems that the elder brother washed the plaintiff's face, cleaned his mouth, talked to him, massaged him if he felt sore and helped to change his nappy sometimes and clean him. The elder brother talked to the plaintiff and generally assisted him. These are services rendered at Liverpool Hospital and, it seems at the Nursing Home (T 32). At the Nursing Home the plaintiff's mother gave the plaintiff a drink (by placing sponges on a stick in his mouth and removing them), talked to him, collected his dirty clothes, took them home, cleaned and washed them. 423 There was a claim of travel time of 1 hour for the mother every second day and 2 hours tor care every second day both at the rate of $21.50 per hour. Apart from the time spent at the Nursing Home the mother would obviously take time to soak the plaintiff's clothes, clean and wash them. Cleaning and washing the clothes of a person being nursed in a nappy is time consuming and unpleasant. 424 The question arises as to the hourly rate which should be allowed. According to Premier Care's letter of 28 April 2008 the hourly rate for an attendant carer to assist with the plaintiff's needs during the day, Monday to Friday is $36.20, on Saturday $44.75 and on Sunday $46. 425 I think that the value of the travel time and the attendant care should be assessed at a rounded figure of $21 per hour seven days per week. I have assumed that the care by the elder brother and mother (including the travel time) have continued during the period judgment has been reserved. If this is not accepted the matter will have to be proved, otherwise the claim will be disallowed. Subject to the matter last mentioned I propose to allow the following: (a) travel time of plaintiff's elder brother between Surry Hills and Canterbury, 1 hour per day at $21.00 per hour 7 days per week­$147 p.w. for 226 weeks. =$33, 222 (b) time spent by plaintiff's elder brother providing gratuitous attendants services- 2 hours per day at $21 per hour 7 days per week-$294 per week for 226 weeks. =$66, 444 (c) travel time of plaintiff's mother between Surry Hills and Canterbury- 1 hour every second day at $21 per hour at $74 per week for 226 weeks. =$16, 724 (d) time spent by plaintiff's mother providing gratuitous attendant services- 2 hours every second day at $21 per hour at $148 per week, for 226 weeks. =$33, 448 (e) out of pocket travel expenses incurred by brother and mother in attending Nursing Home (see Ex AO- items marked in red). =$1659.93 Total=$151, 497.49 Loss of Superannuation Benefits 426 The total impairment of the plaintiff's earning capacity has led to the past and future loss by him of superannuation benefits. 427 Under the Superannuation Guarantee (Administration) Act (1992) (Cth) Star City was bound to make contributions to the superannuation of the plaintiff. 428 The plaintiff while acknowledging the importance of the Commonwealth legislation used a method of calculating those losses that is widely used in Common Law matters, by the Court, the legal profession, insurers and plaintiff's (by their legal advisors), that is 11 % on the nett earnings. This has been found to be approximately equal to the statutory formula of 9 % of an employee's notional earnings base. The adoption of the method mentioned avoids lengthy argument and the necessity for separate detailed calculations and thus expense. No objection was taken to this course. 429 I have earlier assessed the plaintiff's past loss of earning capacity on the basis of net weekly earnings at $141, 220. 11% of this sum is $15, 344. That is the amount I have allowed for past loss of superannuation benefits. I have earlier assessed the plaintiff's future loss of earning capacity at $516, 780. 11% of this sum is $56, 845. From this sum I deduct 15% to allow for the vicissitudes of life. This results in a figure of $48, 319.00. That is the amount I allow for future loss of superannuation benefits. Future Nursinq Care and Canterbury District Nursinq Home Fees 430 I have rejected the proposal that Mr Tran should be accommodated in a purpose built home. I have found that additional nursing care should be provided for him in a Nursing Home from 6am to 10pm seven days per week. I have accepted the evidence of Ms Mukundwi, that this care be provided by an Assistant in Nursing, or as described in the letter of 28 April 2008 of Premier Care Pty Ltd attendant care to supplement the plaintiff's care as a resident of the Canterbury Nursing Home. Two carers are required to cover the waking hours of Mr Tran. The letter notes that all equipment/aids will need to be made available including protective clothing to enable staff to attend to the patient's care needs. 431 Ms Prue Sandford, an experienced occupational therapist undertook a detailed review of the costs of caring for the plaintiff. She proceeded on the basis that he would live until he attained the age of 85.4 years. I have found that Mr Tran has a life expectancy of 10 years from the date of this judgment. Ms Sandford's report bears date 13 June 2006 and her assessment dates are stated to be 20/2/06 and 10/4/06. I have preferred to take the current figures of Premier Care Pty Ltd. 432 Based on the Canterbury District Nursing Home Fees of $784.77 per week, the plaintiff's life expectancy of 10 years and the cost of additional assistant in nursing care for 16 hours per day at Premier Carer rates, I would allow, using the 5 per cent tables (412.9), $2, 182, 279. For this calculation I have relied on the figures provided by the plaintiff's legal representatives. Transport 433 I do not propose to allow any sum for the purchase of a vehicle or for taking the plaintiff on outings because the plaintiff is not aware of his surroundings or of his condition other than probably realising in a general way that he is in a nursing home /hospital receiving nursing care. a was of the view that taking the plaintiff on outings was medically contra-indicated as the plaintiff had aspiration difficulties and was at risk of catching pneumonia. Agreed Past Out of Pocket Expenses and Commonwealth Payback 434 Out of pocket expenses were agreed at $66, 699.98 and the Commonwealth payback for expenses at $200, 072.61. Under this heading I allow $266, 772. Future Treatment 435 In his report of 13 November 2006 Dr Spira wrote the plaintiff will require courses of antibiotic therapy to deal with respiratory, cutaneous or urinary tract infections and that he will need regular visits from his general practitioner. He also thought that the plaintiff would require further admissions to Canterbury Hospital for intravenous antibiotic therapy. Dr Spira noted in his oral evidence that the plaintiff was on anti-convulsant medication and should be maintained on that medication. 436 Dr Waran in his letter of 24 August 2007 wrote that the plaintiff has been his patient since July 2006. He has listed the plaintiff's medications as at August 2007 and that the plaintiff is on continuous parenteral feed with Jevity. Dr Waran has also written that he does not foresee major changes in the plaintiff's medications in the foreseeable future. Dr Waran thought that assessment by a dietician to better manage the plaintiff's chronic constipation would be helpful. There are letters from the Pharmacy Guild dated 21 and 28 August 2007 as to the likely cost of various items. 437 As the plaintiff's submissions point out no information has been provided as to the frequency and quantity of the administration of the medications prescribed. 438 From the limited source material available the plaintiff's counsel, have constructed likely usage and likely cost and arrived at a total weekly cost of pharmaceutical items of $42.70 per week. The accounts of the Canterbury District Nursing Home (Ex R) show pharmacy costs of the plaintiff for November 2007 as $55.25 and for December 2007 as $39.50. 439 While the plaintiff's schedule of Treatment Expenses as at 11/4/08 contains some details of the treatment received and some indications of costs it is not of great assistance in trying to calculate the cost of future treatment. 440 The defendant's assessments of the future costs of medications (including pharmacy items) of $20 per week may be on the low side but the evidence is scanty. The defendant's suggestions ranged from $4630 to $8258. 441 While I appreciated the efforts of junior counsel for the plaintiff in constructing an assessment of pharmacy expenses the court does need Dr Waran or some other qualified person to work out the average weekly usage of pharmacy items and medications of the plaintiff for the future assuming he remains at the Nursing Home. Once that is known the cost can probably be calculated. 442 If the pharmacy supplying the items has a ledger card of the plaintiff's pharmacy expenses over the last 12 to 18 months that may provide corroborative evidence of the anticipated future pharmacy expenses of the plaintiff. The Nursing Home also may have a record of the amounts spent on pharmacy items for the plaintiff over the last 12 to 18 months. Considerable effort was devoted to obtaining the requisite information but that provided fell short of what is required. I am prepared to permit both parties to re-open on this issue. On the limited materials presently available I cannot make a sensible assessment. 443 As for GP visits/investigations the defendant suggested a figure of $32.40 p.w and submitted an assessment $7,500 to $13, 378, the earlier figure applying approximately to a life expectancy of 5 years d the lat figure to a life expectancy of approximately 10 years. 444 In attachment 1 to Dr Buckley's report of 13 March 2008 he makes the following assessment of costs for a consultation by a General Practitioner at a place other than his or her consulting rooms - Level B Item AA 100- $ 99.00 Level C Item AA 110- $148.00 445 There is an apparent gap between the rate of $32.40 per week propounded by the defendant and the figures mentioned by Dr Buckley. Dr Buckley was envisaging a visit to a private home and about 12 visits per year. If Dr Waran see several patients at the Nursing Home on his visits that may affect the fee charged. Allowance has to be made for Dr Waran being called in specially to deal with a particular problem affecting the plaintiff either at the Nursing Home or at Canterbury Hospital. The evidence as to the costs of a medical general practitioner is not relevantly comprehensive and the evidence as to this needs to be supplemented or the amount agreed based on a life expectancy of 10 years. 446 The defendant submitted an assessment of $20,000 to $30,000 for public hospital admissions. Dr Spira thought that there would probably be a number of these over the years. He envisaged the plaintiff being transferred to Canterbury Hospital. 447 Dr Buckley in his attachment 4 of 1 February 2007 has written: "Private Hospital estimated costs for hospitalisation for antibiotic treatment: Bed day costs ($790 per day) say 2 weeks $ 11, 060 448 Counsel for the plaintiff submitted that although the plaintiff has not experienced a severe infection or other health emergency in the last year or so the plaintiff is at risk of contracting infections and/or suffering a health emergency on a reasonably regular basis. While to date treatment had been obtained through Canterbury Public Hospital it was submitted that the plaintiff should be entitled to treatment in such cases in a Private Hospital with at least one such attendance being allowed each year. 449 The plaintiff relied on the costs set out in Dr Buckley's attachment of 1 February 2007, namely, cost of accommodation, pathology and radiology of $11, 743. 450 The plaintiff converted this to a weekly cost over 1 year of $225.83 per week for about 43 years ($225.83 and $938.83) and claimed $212, 013 for this item. 451 Dr Tam pointed to admissions to Canterbury Hospital for 9-10 days in November 2004, 4-5 days in June 2006 and 6-7 days in August 2006, it does not seem that there has been an admission since 9 August 2006. With the increased assistance from the additional carers I anticipate that there may be less need for his admission to hospital but his parlous condition and the attendant risks to his health point to some hospital admissions especially for intravenous therapy or treatment for stomach distension. The duration of any admission is uncertain. The plaintiff when transferred is likely to need prompt attention and bed availability will be a consideration. I have assumed that if the plaintiff is admitted to a public hospital in the future it will be as a private patient. Although it is appreciated that the plaintiff may be transferred to another nursing home, Canterbury Hospital is within a short distance of Canterbury District Nursing Home. 452 With the present well publicised difficulties in the bed availability in public hospitals provision should be made on the basis of the admission of the plaintiff to a private hospital for a period of 10 days annually with bed costs of $790 per day and pathology of $443 and radiology of $240. That would total ($7900, $443 and $240) $8583. The weekly cost over 1 year would be about $165 per week. I would allow this for 10 years. That amounts to $68, 145 ($165 x 413) using the 5% tables. Miscellaneous 453 There are a number of items where provision for costs has been claimed on the basis that the plaintiff was accommodated in a purpose built house. These include podiatrist visits and hair care. I do not know is these are covered by the Nursing Home. If not, then an allowance should be made for the cost of these services in a nursing home provided every 2 months. These will need to be checked with the Nursing Home and costed. There may be other items, the costs of which it does not meet but which are reasonable. 454 I expect that the additional attendant carers/assistants in nursing will have to be provided with items of protective clothing, for example, gloves and some water proof items when assisting to bathe and shower the plaintiff. There may be other steps, such as the use of sterilizing fluid. 455 The matters of protective clothing and the provision of equipment/aids were mentioned in the letter of 28 April 2008 from Premier Care (Ex 29). These matters will need to be identified and costed. 456 It is necessary that a special chair/wheelchair be provided for the plaintiff so that he does not have to spend all day in bed and he can be heeled into the courtyard and grounds of the nursing home. 457 Such a special chair (sometimes called a pressure care recliner) in 2006 is stated to cost $2540- and to require replacement after 10 years. The cost will need to be updated. The chair will need to be kept in repair and maintained. I would allow $4 per week for 10 years for such repairs and maintenance. Using the 5 per cent tables that results in $1652. Summary 458 There should be a verdict for the plaintiff on the issue of negligence but the plaintiff was guilty of contributory negligence. I would apportion liability as to 60 per cent to the plaintiff and 40 per cent to the defendant. 459 I calculate the damages. as follows: Non economic loss: $381,000.00 Agreed out of pocket expenses including $266,772.00 Commonwealth payback: Loss of earning capacity $141,220 Past: $439, 263 Future: $580, 483.00 Interest on amounts awarded for past loss of earning capacity: $ (to be calculated) Loss of Superannuation Benefits: $15, 344 Past loss: $56, 845 Future loss: $72, 189.00 Future Nursing Care and Canterbury District $2,182,279 Nursing Home Fees: Past Gratuitous Care: $151, 497 Future Medical Expenses for Doctors (Subject to further evidence): Hospital Cost for future hospitalisation $68,145 Future Physiotherapy costs: $ (Subject to further evidence) Miscellaneous: $ (Subject to further evidence) Management and Trustee Fees: $ (to be calculated) 460 A suitable date to deal with the matters on which further evidence may be called should be set. I have taken the unusual course of allowing further evidence on a limited number of damages issues. While I have considered the submissions of counsel for the plaintiff and counsel for the defendant I have made assessments. There were many disputed facts and the parties could not be expected to know what evidence would be accepted and what views I would form. The matter was one of some complexity. I have endeavoured to indicate my views on the questions of principle. I have used the date of 28 November 2008 in working out various figures. That may need to be adjusted. If so, that may result in some small variations to the figures if the parties prefer another date. Thereafter, the figures will need to be finalised and questions of interest and costs determined. My calculations should be checked for arithmetical errors. ********** 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.