District Court New South Wales Medium Neutral Citation: Russell v Lozanes [2011] NSWDC 149 Hearing dates: 22, 23 and 24 August 2011 Decision date: 30 September 2011 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the defendant. (2) Liberty to apply on three days notice for any argument concerning costs. (3) Exhibits retained for 28 days. Catchwords: TORT - personal injury - inebriated pedestrian struck whilst running across the road at 1.30 a.m. - liability - alternative finding of 100% contributory negligence - causation and damages Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 126, 138(3) and 138(4) Uniform Civil Procedure Rules 2005 (NSW), Pt 31 r 31.10 Cases Cited: Daly v Liverpool Corp [1939] 2 All E R 142 Dennis v Keep [2002] NSWCA 227 Derrick v Cheung (2001) 181 ALR 301 Graham v Baker (1961) 106 CLR 340; [1962] ALR 331; (1961) 35 ALJR 174 Griffin v Lee-Brown [2000] QSC 299 Imbree v McNeilly & Anor (208) 248 ALR 647 Jones v Dunkel (1959) 101 CLR 298 Knight v MacLean [2002] NSWCA 314 Luxton v Vines (1952) 85 CLR 352 MacKenzie v Nominal Defendant (2005) 43 MVR 315; [2005] NSWCA 180 Manley v Alexander [2005] HCA 79 Miller v Galderisi [2009] NSWCA 353 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; (1985) 59 ALJR 492; (1985) Aust Torts Reports 80-321; [1985] HCA 34 Turkmani v Visvalingam [2009] NSWCA 211 Vale v Eggins (2006) 46 MVR 514; (2006) Aust Torts Reports 81-869; [2006] NSWCA 348 Wyong Shire Council v Shirt (1980) 146 CLR 40 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Principal judgment Parties: Plaintiff: Cherie Russell Defendant: Julie Ann Lozanes Representation: Plaintiff: Mr C Barry QC / Mr W Carney Defendant: Mr D Ronzani / Mr J Ryan Plaintiff: PK Simpson & Co Defendant: Curwoods Lawyers File Number(s): 2004/187603 Publication restriction: None Judgment Introduction 1These proceedings have a long history. The motor accident in which the plaintiff was injured occurred on Sunday 8 July 2001 at about 1.30am. The plaintiff's Statement of Claim and Particulars were not filed until 16 February 2004. In unrelated events, the plaintiff was taken into custody on 18 March 2005 and, on 21 July 2006, convicted of manslaughter, for which she was sentenced to imprisonment for 6 years with a non-parole period of 3 years concluding on 17 March 2008. 2While the plaintiff was in prison, a MAS report was prepared on 20 May 2007, almost 6 years after the accident. Further medical reports and evidence prepared since that time are of little assistance, not least because the particulars filed on 16 February 2004 have never been amended. The case before me proceeded on the basis of those 2004 particulars. 3The plaintiff's injuries meant that she has no recollection of the accident. Her companion on the night of the accident cannot now be located, according to the evidence adduced on behalf of the plaintiff, and the principal witness to the accident, other than the defendant, suffers a serious illness which prevents him from being cross-examined. The evidentiary and other problems flowing from these difficulties and delays are set out in more detail below. The issues in these proceedings 4This claim is governed by the Motor Accidents Compensation Act 1999 (NSW). The issues for determination may broadly be stated as liability, contributory negligence and quantum. The negligence the plaintiff must prove is the pleaded negligence as particularised in her 2004 Statement of Claim, as well as any breach of duty resulting in the cause of the accident. The evidence of the plaintiff 5The plaintiff, who is now 55 years old, has no recollection of the accident, but retains a general recollection of the events of the night in question. Her evidence was that she and Patricia Russell, her son Rodney's girlfriend or ex-girlfriend (it is unclear precisely what her status was) went to a hotel at about 6.00pm where they stayed "for a while". The plaintiff had loaned for car to her daughter Julie, who was supposed to pick the plaintiff up at 10.00pm. She said she and Patricia Russell had "a couple of drinks" and at 10.00pm telephoned Julie to be picked up. They were not able to get hold of her by telephone so the plaintiff rung a taxi on her mobile. She then said to Patricia Russell "I am going home" and the two of them left the hotel. The hotel was described as being "a fair walk, a couple of hundred metres" away. It was not close to the accident site. 6After leaving the hotel, the plaintiff continued to try to ring both a taxi and her daughter Julie. Her next memory is that she saw lights. After that her next recollection was of waking up in the hospital. 7In cross-examination, it was put to the plaintiff that she had had more than a couple of drinks and that she had in fact been drinking heavily, with no evidence of food having been consumed throughout since 6.00pm. Reports prepared by Professor Starmer (17 July 2005 and 13 October 2008 - Exhibit 1) put the plaintiff's blood alcohol concentration at the time of accident in the range of 0.188 to 0.229 (see paragraph 4 of the report of 13 October 2008). It was put to the plaintiff that she had been a regular drinker for many years and had drunk alcohol to the extent of becoming inebriated over a lengthy period of time including her 17 year relationship with her husband from the age of about 23 or 24. Although her history of drinking and domestic violence is extensively recorded in police and medical reports, the plaintiff said that there was "not a real lot of violence during her relationship" and that she had "just arguments like other married couples". Problems between the plaintiff and her husband requiring police intervention appear to have commenced in about December 1991 (Exhibit 2, document 27, 28, 29, 30, 31, 32, 33, 35, 36, 39, 40; Exhibit C (document v)) and to continue throughout the 1990s. On 28 February 2000, police attended the plaintiff's home following an argument between herself and her ex husband, both of whom were note by police to be intoxicated, and the plaintiff later sought an AVO against her former husband (Exhibit 2, document 45). The medical evidence points to the plaintiff having increasing problems with alcohol over this period of time. 8Then, in August 2000, the plaintiff suffered an injury to her back while working at Unistrut Pty Ltd. She suffered back pain and was either on light duties or not working at all up to the accident. The impact upon the plaintiff of loss of full time employment had more than financial consequences for her. Police were called to the plaintiff's house on several occasions in early 2001 where the plaintiff appeared to have been the victim in a series of family arguments, in one of which she was struck by her former husband so severely that her breast implant collapsed (Exhibit 2, document 6). 9The evidence before me does not explain, other than in a very general way, what the plaintiff was doing after 10.00pm, when she commenced to contact her daughter to picked up from the hotel, and 1.30am, the time of the accident. I have been cautious not to draw any assumptions about this time, as it has not been addressed by counsel on either side. However, the uncontroverted evidence is that the plaintiff cannot have been drinking for the period of time that it took her and her companion to travel the distance between the hotel and the site of the accident, during which time she was continuing to try to ring her daughter and a taxi. 10Although the plaintiff is unable to describe her injuries, there is some contemporaneous documentation in the form of information provided by the defendant in a short record of interview and by Mr Lamplough, the driver of another motor vehicle who saw the accident, as well as notes in the COPS report of some comments by the plaintiff's companion to the police. 11I shall deal with each of these in turn. The COPS report 12The COPS report described the crash as follows: "About 1.30am on Sunday the 8 th July 2001, vehicle 2 (the defendant) was travelling in lane 3 of 3 west bound lanes upon Richmond Road, Blacktown. Vehicle 2 has come to the intersection of Richmond Road and Lyton Street, where the driver has seen pedestrian 1 (the plaintiff) run across the road from the south bound kerb of Richmond Road to the north bound kerb. As a result, the driver of vehicle 2 has swerved to the right in an effort to avoid colliding with pedestrian 1, however has been unsuccessful, and has collided into pedestrian 1." 13The police officer compiling the COPS report notes that police spoke to both the defendant and the other motorist at the scene, Mr Lamplough. The COPS entry then records: "Police then obtained a signed statement from driver 2 where she stated that the pedestrian has ran [sic] across the road, and she didn't see her until she was 2 to 3 metres away from her. Driver 2 further states that she was only going 45-50km/h. Witness 2, who was travelling behind driver 2, confirmed this version of events." 14The police officer also noted a conversation which "witness 1" later identified as Patricia Russell, who was with the plaintiff at the time of the collision, although on the opposite side of the road at the time. 15The police who attended the accident consulted with Duty Officer Doherty at Blacktown Police Station, and the Duty Operation Inspector, Leanne Douglass. The Duty Operation Inspector subsequently contacted the referral officer at the crash investigation unit, but the crash investigation unit declined to attend or investigate the incident. Police did so because of their conclusion concerning the facts as identified by them. They were, however, investigating potential criminal proceedings, not an issue of civil liability, and police findings in this regard must be treated with caution. 16The final entry is a note that the plaintiff's blood alcohol level was 0.16 at the time of the accident. The evidence of Mr Lamplough 17Mr Ronald Lamplough, a man of 43 years who has been driving since 17, and is an experience and careful driver, was driving his Toyota Corolla sedan, registered number TNG-320 along Richmond Road. On the night of the accident, he is described in the COPS report as having "confirmed" the defendant's version of events, which was that the pedestrian had run across the road and the defendant did not see her until she was 2-3 metres away from her, in circumstances where the defendant was going 45-50 km/h at the time. 18Mr Lamplough's statement about the events of the accident was taken on 4 December 2001, by an investigator. He said as follows: "6. On Sunday the 8 July, 2001 around 1.30am I was driving my Toyota Corolla sedan, registered number TNG-320 in a general westerly direction along Richmond Road. I had my headlights on low beam and had a good view of the road ahead. The weather was fine and the roadway was dry. I recall the traffic was quite light. However, I do recall I was following a Jeep. That vehicle was within the lane closest to the centre of the road. I was in the middle of the three lanes. I was driving about 60 kilometres per hour. The Jeep was about 50 metres ahead of me. I was not gaining or losing distance with that vehicle and formed the view the Jeep was also doing 60 kilometres per hour. 7. I saw the Jeep had its tail lights on. The Jeep was being driven normally. I recall the Jeep was approaching the intersection of Lyton Street. That intersection is controlled by traffic control lights. The traffic lights remained green in our favour the entire time I had the intersection under my observation. 8. As the Jeep approached the intersection I noticed a person running from the left-hand side of Richmond Road. I immediately formed the view that this person was running directly into the path of the Jeep. I would describe the running action of this person as quite quickly. The person was looking directly ahead and I did not see that person look to the right at any time prior to the accident. 9. I realised that the person was going to run directly into the path of the oncoming Jeep. I knew it was about to happen, so I looked away. I heard a thud and looked ahead. I saw the Jeep at a 30-degree angle to the right. The Jeep was stationary with the west bound lane. I was about 30 metres from the pedestrian when I saw that person commence to run from the southern kerb. I believe the person was very close to the intersection of Lyton Street at that time. 10. Because I had looked away from the impending accident I did not see the Jeep take any evasive action prior to the impact. However, as the Jeep had come to a stop at that angle, I believe the driver must have veered to the right. 11. I stopped my car in the middle lane about 5 metres from the person that had been hit. That person was laying between the number two and three west bound lanes. I stopped my car in the middle of the road to protect the pedestrian from any oncoming vehicles. I turned my hazard lights on and got out of the vehicle. I walked over to the pedestrian and saw that person was a female. I believe that person was wearing dark clothing. I cannot recall the type of clothing she was wearing apart from dark blue jeans. 12. I saw the female appeared to be unconscious. I could not see any blood on her or sign of obvious injury. I returned to my car and got a jumper which I placed over the pedestrian. When I was placing the jumper over her, I could smell what appeared to be alcohol coming from her. I am not a drinker. However, I have visited licenced premises and seen people affected by alcohol. 13. I also saw another female standing on the left-hand side of the road. They seemed to be near the point the pedestrian had crossed the road from. Those people were a male and a female. They both seemed distressed. I heard those people say, 'She's been drinking. She doesn't know what she was doing'. I did not have any further conversation with them. 14. I also went over to the Jeep to check on the occupants. I could see the driver was a young Asian girl. She appeared extremely upset. I did not have any conversation with her. I saw another young man, I believe was her brother, comforting her. 15. I did not notice any damage to the Jeep. I waited at the accident until police and ambulance arrived. The ambulance treated the pedestrian and took her away. I spoke with the police and gave the officer my details. I have not heard from the police since. 16. I had a clear view of the roadway ahead prior to this accident. The driver of the Jeep and I were driving at 60 kilometres per hour. The street lighting was on and the road appeared well lit. The pedestrian just ran from the left-hand kerb across the road. 17. At no time did I see that pedestrian check for oncoming west bound traffic prior to the impact." (Exhibit A, tab 2) 19In the course of the hearing, the plaintiff sought leave to rely upon what is asserted to be an unsigned statement by Mr Lamplough of more recent origin. The tender of this statement was opposed. An affidavit was prepared by the solicitor who had a telephone conversation with Mr Lamplough, for the purpose of attaching his diary note of this conversation. I was shown a copy of this unsigned statement, which contained a significantly different account of the accident, such as a claim that the defendant's car and Mr Lamplough's car were much closer together in term of distance. These were matters that have not been put to the defendant or to the defendant's expert witness. A further report prepared by the plaintiff's expert witness had considered this material, but that report, although marked for identification, had not been tendered. Nor was it the subject of submissions by either party. I accordingly have not taken this into account when considering the factual background relating to the plaintiff's accident. The evidence of the defendant 20In a signed record of interview taken at the scene of the accident, the defendant told police: "I was approaching the intersection of Richmond Road and Lyton Street, in lane 2 of 2 [sic] westbound lanes, when I noticed a woman run across the road from Lyton Street across to the northern kerb of Richmond Road. I swerved to the right in an effort to miss colliding with this woman but was unsuccessful and the woman hit the front left hand side of the car." 21The speed at which the defendant said she was travelling is hard for me to read in the police notebook. I note, however, in the typed version in the COPS report this is stated to be 45-50km/h. The defendant also said that the lights at the intersection were green and that she was about 2-3 metres away when she first noticed the woman. 22In the course of submissions, Mr Barry QC submitted that this statement was not taken at the scene of the accident but at a later stage when the defendant came to the police station, by which time she had had an opportunity to reconstruct the facts. 23This must be incorrect, as the time at which the police officer has described taking this statement is 1.30am when he came to the scene of the accident. The reference to 5.02am in the COPS entry is the time that these matters where all entered onto the computer for the purpose of recording what occurred after police had made the further enquiries referred to in the COPS entries, which included attending Westmead Hospital to speak to the treating doctor. The defendant was not cross-examined about attending the police station and all the evidence point to the contrary. The defendant's evidence was that she drove home after the incident. 24As well as signing the record of interview on the night of the accident in question within an hour of the accident, the defendant was called and gave evidence. 25The defendant gave clear and concise evidence of the events, of which she still had a good recollection, although she agreed in cross-examination that her recollection of events would have been stronger in 2001, when she made statements to the police. 26The defendant was born on 30 May 1983 which means she was only 18 years old at the time of the accident. Although this is a very young age for a driver, her evidence was that she obtained her licence as soon as she was old enough to do so, and from that time commenced driving the vehicle which she was driving at the time of the accident. This was the vehicle that she drove to school and to work, and learned to drive on (additional lessons being given by her brother, as well as lessons from a driving school) and use. She said it had an automatic transmission. 27In addition to being familiar with the motor vehicle she was driving, the defendant said she was familiar with the area. It was the area she had lived all her life. She had driven along this road many times. She knew of the Adam's Tavern, which she said was some distance back on Richmond Road. She was not able to say how far this tavern was from the intersection, but the unchallenged evidence is that it was a couple of hundred metres. It is not submitted that the tavern was sufficiently close to the scene of the accident for drivers to be alert to the possibility of drunken patrons exiting the hotel late at night. 28On the night in question, the defendant was the designated driver and was driving home her brother and two neighbours who were friends, all of whom were asleep in the car, it being 1.30 a.m. It had been her brother's birthday the day before, and they had spent the afternoon go-karting, following which they had dinner. The defendant did not drink any alcohol (although the others with her had), as she was the designated driver. 29The defendant said that despite the late hour, she was alert and awake and was watching the road. She had the radio on because it was "nice to have background music when you are driving". 30In both examination in chief and cross-examination, the defendant said that the first time she saw the plaintiff, she was already on the road, and running. She said she must have "slammed on the brakes", that she pulled over to the right and that the vehicle came to a stop across the intersection facing oncoming traffic. The median strip had prevented her from going over further, as the defendant's vehicle was in the furthest lane of traffic, than the line of traffic closest to the median strip, which was a raised concrete barrier. The impact occurred on the front left hand side of the vehicle rather than being a frontal collision. 31The defendant's evidence was that she was travelling between 50-60 km/h when she saw the plaintiff. She stated frankly, in relation to speed estimates, that she was unable to remember, as it was so long ago, but agreed that any estimate she had given at the time would have been more accurate than her recollection today. 32In cross-examination, the defendant denied that she was tired even though it was 1.30am. She said she had been driving for an hour from the city, since approximately 12.30am. 33The defendant agreed that the area was very well lit. 34The question of how far away the plaintiff was at the time she was first seen by the defendant was a significant issue in relation to questions of liability. The plaintiff told police that when she first saw the defendant she was two to three metres away which would mean, if taken literally, that she did not see the plaintiff until the plaintiff was struck by the car and was therefore not paying attention to what was on the roadway. This evidence is examined in more detail in the analysis of the evidence of the experts. Patricia Anne Russell 35The other person present at the scene of the accident was Patricia Anne Russell, who was the plaintiff's son's girlfriend or ex-girlfriend. She is recorded in the police investigation as a witness. According to the material in the COPS report, the information she provided to the police was as follows: "Police then spoke with witness 1, who was with pedestrian 1 at the time of the collision. Witness 1 stated that she had been drinking with pedestrian 1, for some time at "Adam's Tavern", which is also located on Richmond Road. Witness 1 states that pedestrian 1 had consumed a large amount of scotch in the evening which may have been a contributing factor to the collision. In witness 1's view, pedestrian 1 was extremely intoxicated. Witness 1 further states that her and pedestrian 1 had been standing on Richmond Road, for some time in an effort to flag down a taxi, however had been unsuccessful. Witness 1 states that she was standing on the northern curb, and pedestrian 1, was running across the road to meet her." (Exhibit A, tab 1) 36Ms Russell also appears to be the person referred to by Mr Lamplough in his statement as set out above. 37The plaintiff relies upon an affidavit of Judith Gabbay sworn 23 August 2011 to prove attempts to locate that witness who would otherwise had been called in the plaintiff's case. 38That affidavit sets out an attempt made on 5 November 2009. What attempts were made prior to that date or subsequent to that date, if any, are not the subject of any evidence before me. 39The inquiries set out by Ms Gabbay are limited. For example, no attempt was made to retain a private investigator, or to make other enquiries of, for example, former solicitors or family members. Nor have any attempts been made, it would appear, since that time. 40In the submissions, Mr Barry QC states there is no evidence that Patricia Russell actually saw the accident. I do not agree. She describes the plaintiff as running across the road to meet her, according to the information she provided to the police. On the balance of evidence, the likelihood that she was not looking in the general direction of the plaintiff when this occurred is implausible. 41Accordingly, I draw a Jones v Dunkel inference ( Jones v Dunkel (1959) 101 CLR 298) against the plaintiff namely that this eyewitness, if called, would not have assisted the plaintiff's case. 42By reason of the long period of time since the accident, the limited evidence from Mr Lamplough, and the lack of contemporaneous records concerning the circumstances of the accident (for example, notes of the accident scene such as the presence or absence of skid marks) there are gaps in the evidence in the facts of these proceedings. Evidentiary problems 43The plaintiff's Statement of Claim and Particulars were filed on 16 February 2004. The Particulars were never amended during the intervening seven years, which means that the medical evidence (tendered on the understanding that it should not exceed the claim as particularized) needs to be read with caution. 44The plaintiff, because of her injuries, has no recollection of the circumstances of the accident. This makes it all the more unfortunate that a lengthy period has elapsed between the date of the accident and the date of the hearing. 45The proceedings were listed for hearing three times (on 5 April 2005, 22 October 2009 and 6 July 2010), but vacated on each occasion shortly before the hearing date. Mr Barry QC has asked me to defer dealing with the lengthy procedural history of this action until costs are determined. However, in any hearing which takes place more than ten years after the events in question, reconstruction of what occurred is likely to be difficult. 46The defendant was interviewed by police at the scene of the accident and there is a short record of interview; the COPS report also notes information from two persons at the scene of the accident. It is not in dispute that the three occupants of the defendant's car, who were asleep, saw anything of how the accident occurred. Mr Lamplough did, but he was too ill to be cross-examined and his 2001 statement was tendered. 47I note that the police officer at the scene, the ambulance officer and an unidentified male referred to in Mr Lamplough's statement were not called, although whether their evidence would have been of assistance is unlikely, particularly given the long passage of time since these events. The onus of proof and the drawing of inferences where the weight of factual evidence is an issue 48The main factual evidence in this case consists of the defendant's evidence at the time of the accident and in these proceedings, the police notebook and COPS entry and the statement of Mr Lamplough to the NRMA. Inferences to draw from absence of witnesses and documents 49The plaintiff submits that I should draw an inference, from the defendant's failure to produce a signed statements made by the defendant to an investigator "as a time much closer to the circumstances of the accident" that there was nothing in the defendant's version at the time which would have assisted the defendant's case. It is further submitted that the failure to show her the statement, or to adduce it in evidence, "also leads to the probable inference that the defendant's evidence in which she claims to have seen the plaintiff at a time before she was two to three metres away is a reconstruction" (Plaintiff's submissions, paragraph 5). 50The defendant had a good recollection of events of the accident and gave her answers clearly and concisely. She told the court, as she had told the police officer on the night of the accident, that her first sight of the plaintiff was when she was running across the road. 51Although witness statements are common in other civil proceedings, they are not used in personal injury litigation. While the need to give full disclosure in personal injury litigation may cause courts to order pre-trial production of surveillance video (see the cases discussed at Ritchie's Uniform Civil Procedure NSW , Uniform Civil Procedure Rules 2005 (NSW), Pt 31 r 31.10) , the drawing of an inference from failure to provide a document which would otherwise be the subject of a claim for privilege is not a step that should be taken other than in exceptional circumstances. In the present case, none of the significant delay since the plaintiff's accident has arisen by reason of delay by the defendant or her legal representatives. 52I do not propose to draw any inference from the failure of the defendant to produce and tender any statement prepared by her or her legal representatives. Inferences to draw concerning skid marks 53The accident scene was not investigated, for the reasons set out in the COPS report. The police officer at the scene made no observations or notes as to how the accident happened beyond the very crude diagram in the notebook which, as Mr Barry QC points out, omits the third traffic lane for turning vehicles. While this document contains an inaccuracy, it is so crudely drawn as to be of little assistance even if it were accurate. 54Mr Barry QC submits that the case would have been "entirely different" if there had been evidence of braking or skid marks on the roadway, and submits that as there is no evidence in the police records of any braking or skid marks, this is consistent with the plaintiff failing to keep a proper lookout. 55The evidence is silent as to whether or not there were skid marks. The defendant's evidence that she braked is the subject of expert evidence. I do not propose to assume that, in the absence of evidence that there were skid marks, there were no skid marks. Failure to cross-examine concerning obligations to sound the horn or swerve to the left 56Although not the subject of any expert evidence, Mr Barry QC submitted that the defendant could have averted the accident entirely by sounding the horn, or swerving right instead of left. This was not the subject of cross-examination, nor was it dealt with by the expert evidence and I propose to disregard it. 57If I have erred in this finding, I note that steps of this kind would not necessarily have avoided the accident, or made any difference, given the proximity of the plaintiff to the defendant's vehicle. The plaintiff's evidence was that she suffered severe deafness and her response to the horn being sounded, if it had been put to her in evidence in chief, is unknown. 58Further, in Dennis v Keep [2002] NSWCA 227 at [20], Foster AJA rejected a similar submission as that the driver could have avoided the accident by taking some additional steps such as sounding his horn or flashing his headlights. His Honour added: " As a matter of causation I would not be satisfied that had those precautions been taken, they would reasonably have had any effect, having regard to the condition in which the claimant was. However I do not consider, having regard to the reasonable ambit of the duty of care in this situation, that those precautions were called for." The submissions of the parties concerning the facts 59Mr Barry QC submitted that the extremely drunken state of the plaintiff, and the impact of her injuries, mean that she would have moved very slowly across the road, and that there was plenty of time for the defendant both to observe the plaintiff and to slow down in order to avoid her. It is submitted that the plaintiff was going much faster than the speed she told police at the time (45 km/h) and that she was in fact travelling 60 km/h, as was Mr Lamplough, but that the good lighting and clear view of the plaintiff meant that the defendant would have seen her the moment she stepped off the road (as Mr Lamplough did), and that the failure of the defendant to do so meant that she was failing to keep a proper lookout to observe the plaintiff proceeding across the roadway. 60Mr Ronzani put two alternatives before me. First, he submitted that the plaintiff, well accustomed to alcohol by long usage, and not enfeebled by her back injury, was determined to get across the road quickly by running across the road, which she did so quickly that the defendant's vehicle, a considerable distance in front of Mr Lamplough's vehicle, had insufficient time to avoid hitting her even though the defendant was keeping a lookout and saw the defendant as soon as she left the kerb. Alternatively, if the defendant did breach her duty of care by not observing the plaintiff until she was some short distance across the roadway, the result was an inevitable accident through no fault of the defendant since the plaintiff would have been struck in any event. By reason of the many gaps of knowledge concerning the events of the night in question there is no basis for preferring one scenario over another and accordingly, on the evidence (see Luxton v Vines (1952) 85 CLR 352 at 358 - 360), the party seeking to establish negligence has failed to discharge the onus of proof of negligence. 61The defendant further relies upon Mr Schnerring's table (Report of 18 June 2010, p. 12) to demonstrate that if the defendant was travelling at between 50 - 60 km/h, and the plaintiff was running at 2.0 metres a second (a speed conceded to be "possible" by Mr Schnerring), an accident was unavoidable, given the need to factor in reaction time of up to two seconds. 62This brings me to the evidence of the expert witnesses. Before considering their report in some detail, I should note that, as both experts agreed, there are many facts in this case which are not known, and this creates a problem in relation to the finding of factual issues. In particular, the point of impact, the place the plaintiff came to rest after impact and whether she ran across the road in a straight line are not known. The expert evidence 63Both parties submitted that this was a case where by reason of the uncertainty of many of the facts surrounding the accident, the Court should be more than usually careful in placing weight upon the reports of traffic engineering investigation experts. 64At my request, the parties agreed that the experts should have a conclave prior to giving evidence but Mr Barry QC requested that each of them be cross-examined separately in the "traditional way". It is therefore necessary for me to analysis their reports separately. Report of Mr Fred Schnerring 65Mr Schnerring inspected the road site on 14 June 2010, nine years after the accident. While the topography remains similar, this is not a report which has been prepared by someone with the advantage of attending the scene shortly after the accident, as some times occurs with these reports. 66Mr Schnerring notes that the lane width was 2.9 metres, which would leave 0.6 metres between the lane edge and the left side of the vehicle. He concluded that this would suggest that Ms Russell, if she crossed from the kerb to the point of impact, would have travelled a total of 6.6 metres. 67Mr Schnerring calculated the speed of the plaintiff as between 1.8 to 2.4m/s for the reasons set out by him at paragraph 9.2 of his report, based on his involvement in "little athletics" for the past eight years. He took into account that the plaintiff had a previous back injury for which she was receiving physiotherapy and also that she was not dressed for the occasion in which she was not wearing a jogging suit, something he considered was a significant factor having regard to a study by Eubanks on jogging speed. As it would appear the plaintiff was attempting to get across the road to see her friend on the other side and could have been in a hurry, he considered the speed would therefore be between "hurried walking" at 1.8m/s and a 15 th percentile jogging pace of 2.4m/s. He considers the fact that she was not wearing jogging gear would cancel the "30% increase in speed" factored in by Mr Stuart-Smith. 68A considerable amount of cross-examination of Mr Schnerring related to the assumptions from "little athletics" and that she was walking at a pace between hurried walking and jogging. 69While the plaintiff suffered a back injury of some significance, none of the medical evidence point to the plaintiff as limping while she walks or otherwise having difficulties in walking. The evidence of Mr Lamplough and the defendant was that the plaintiff ran quickly and suddenly across the road. Assumptions that she was walking at a pace between hurried walking and jogging had been made without any regard to this evidence. 70The report of Mr Stuart-Smith estimated a speed of 50-60 km/h but Mr Schnerring considered that there was evidence indicating the speed could have been as low as 40 km/h. While the defendant was of the view that she was travelling at 45 km/h, the likelihood was that, on a large roadway with little traffic where the speed limit was 70 km/h, she was more likely than not to have been travelling at the speed of 60 km/h or slightly below, taking into account that she was approaching an intersection. Both Mr Stuart-Smith and Mr Schnerring considered the likelihood of her speed at impact to be around 45 km/h. This is however a difficult issue for determination given the lack of other information. 71Both Mr Schnerring and Mr Stuart-Smith agreed on a perception and reaction time of 2 seconds (Jamieson Foley report at page 18). 72Mr Schnerring's conclusions, and my findings in relation to them, are as follows: The speed of the Jeep could not be determined from the available physical evidence. The Police material indicated the speed of the Jeep to be between about 40km/h and 50km/h. Comment : I note that Mr Lamplough's evidence puts her speed at 60 km/h. The estimate of 45 km/h at the time of collision was the defendant's. The pedestrian probably was on the roadway for between about 3.0 and 3.8 seconds based on the distance from the side of the road to the point of impact and her likely speed. Comment : I have rejected this contention, as the plaintiff was described as running, not walking fast or jogging, by both Mr Lamplough and the defendant. She was wearing running shoes and comfortable clothing and I do not accept that her clothing had any impact on her speed. At a speed of between 40km/hy and 50km/h, the Jeep probably was between about 33 metres and 53 metres from the pedestrian when the pedestrian started to cross the roadway. Comment : The likely speed of this vehicle, in a 70 km/h zone, was the speed estimated by Mr Lamplough, namely 60 km/h, and I consider the vehicle was likely to be closer to 33 than 53 metres away from the plaintiff, given Mr Lamplough's evidence. The pedestrian was reportedly wearing a white jumper and commenced her crossing close to a street light. The road was well lit. My inspection of the site showed that the pedestrian would be visible to the driver at the above distances. Comment : It is not in dispute that the road was well lit. As to whether the plaintiff was wearing a white jumper, the best evidence is that of Mr Lamplough, who describes the plaintiff as wearing dark clothing, and dark blue jeans. The driver stated that she did not see the pedestrian until the pedestrian was 2 to 3 metres away, suggesting some form of distraction or inattention. Comment : Both experts agree that although the defendant gave this estimate, it must be incorrect. The most likely explanation for this measurement is that the plaintiff was only seen by the defendant when she was running across the road, in the same way that Mr Lamplough first saw her doing this, and that she saw her just before the collision. It is a measurement which should not be taken too literally. At an approach speed of 40km/h to 50km/h, the driver probably was in a position to stop, or to slow to a speed of about 22km/h at impact. Comment : If the defendant was not able to stop, then the accident was inevitable. However, if the defendant was travelling at 60 km/h prior to seeing the plaintiff, as is Mr Lamplough's estimate, then any assumption that the defendant could stop must be incorrect. In addition, if I accept Mr Stuart-Smith's faster estimate for the plaintiff's running speed, that would make the accident unavoidable at any speed over 45 km/h, the speed given by the defendant at the time of the accident. Impact speeds of 20km/h to 25km/h are broadly considered to result in minor injuries, a lower injury outcome than that evidently sustained by Ms Russell. Comment : This is not the subject of any medical evidence, but I am prepared to accept this contention. 73Mr Stuart-Smith's report challenged the findings of Mr Schnerring concerning the speed at which the plaintiff was crossing the road. As all the evidence pointed to the plaintiff running and not jogging, he considered that the jogging speed set out in Eubanks (J. Eubanks, Pedestrian Accident Reconstruction , Lawyers & Judges Publishing Co., 1994) to be irrelevant, noting that Vaughan & Bain (R. Vaughan & J. Bain, Acceleration and Speeds of Young Pedestrians : Phase II, SAE 2000-01-0845) explained that running speeds for young women were generally around 35% faster than their jogging speeds and that this percentage increase did not appear to be related to age. 74If the plaintiff was indeed running, as described by the defendant and Mr Lamplough, Mr Stuart-Smith considered that a range of 3 to 4m/s, with a likely running speed of 3.5m/s is the most likely running speed of the plaintiff. This would mean that she had reached the approximate point of impact, 6.6 metres into the roadway, in the 2 second interval for response time agreed to by both experts, which would make the accident inevitable. It would mean that the time at which the plaintiff left the kerb was actually within this 2 second period, or so close to the edge of it as to make collision inevitable. 75In oral evidence, Mr Stuart-Smith explained that what prevented the defendant from driving further to the right was the median strip, a raised concrete construction which continued up to the intersection. She was not able to drive to the wrong side of the road until reaching the intersection, which the car came to rest facing the oncoming traffic. 76It is not without significance that Mr Lamplough, from his position considerably further back when he first saw the plaintiff run across the road, was still only able to bring his car to a halt 5 metres from where the plaintiff laid on the roadway. His impression that an accident was inevitable is also not without significance. 77Mr Stuart-Smith says as much at paragraph 7.2 of his report where he states: "Since the defendant reacted within a typical perception response time, a collision was unavoidable. In order for the defendant to have been able to avoid a collision, her perception response time would need to have been faster than was the case. The difference in time would need to have been sufficient for the defendant to have commenced braking at an earlier point equivalent to the distance between the front of the vehicle at rest and the POI. Since the vehicle's precise rest position was not measured, the precise required decrease in the defendant's perception response time cannot be determined. Nonetheless, based on estimates from the Police sketch, the defendant would have been required to have reacted approximately one second faster to have stopped before reaching the POI. Even if the defendant had reacted 0.4 seconds earlier (the difference in time between the upper end of her possible perception response time of 1.6 to 2.4 seconds and a typical time of 2.0 seconds), the plaintiff would still have collided with the side of the car (although at a point slightly closer to its front)." 78Mr Stuart-Smith's conclusions were as follows: 1. Based on conservative assumptions in relation to pedestrian running speeds, a typical driver with a typical night time perception response time would not have had sufficient time to be able to avoid a collision from any reasonable speed. Comment : As 2 seconds is an agreed figure by both experts, this is an opinion I accept. 2. The defendant's reaction in braking and attempting to swerve was a reasonable response from a road safety perspective. Comment : Mr Barry QC submitted that the absence of evidence about skid marks is evidence that the defendant did not brake. I have indicated elsewhere that I reject his submission concerning whether or not there were skid marks. The defendant's evidence was that she braked and attempted to swerve. Both experts agreed that this was an appropriate course of conduct. Submissions by Mr Barry QC that she should have swerved to the left, or sounded the horn, are not matters about which I have received any expert evidence and I have rejected these submissions in any event. 3. The plaintiff attempted to cross the road on the opposite side of the intersection from a pedestrian crossing and with her destination blocked by a barrier, which would normally prevent crossing at the location she chose. Comment : These facts do not appear to be in dispute. 4. Base on the information available, the defendant would not have had sufficient time to have avoided a collision. Conclusions concerning expert reports 79While I propose to treat the expert reports with caution, given the uncertainty about where the plaintiff was struck and fell, the lack of information about skidmarks and the other uncertainties concerning the evidence, the experts ultimately agreed that with a reaction time of 2 seconds, some form of accident was inevitable. Even if the defendant had seen the plaintiff standing on the street and divined that it was possible the plaintiff was likely to want to cross the road, despite the barrier on the opposite side (and there is no evidence she was standing on the road, or otherwise making clear any intention to cross the road), it would not have been possible to avoid striking the plaintiff when she suddenly and without warning ran in front of the defendant's vehicle. 80Having made these findings of fact I now turn to a consideration of the legal issues for determination. The relevant standard of care 81The duty of care owed by motorists to pedestrians is a very high one: Daly v Liverpool Corp [1939] 2 All E R 142 at 144 per Stable J. The relevant standard of care is that which a reasonable person would observe in driving a motor vehicle, which is an operation with the capacity, if carelessly executed, to cause great harm to others. The standard is an objective one and the personal characteristics of the driver are irrelevant. Issues relevant to breach of the driver's duty of care 82The requirement for establishing a breach of the driver's duty of care requires consideration of what a reasonable driver would have done in all the circumstances of the case, and whether that person would have foreseen the risk of injury. If the reasonable driver would have foreseen the risk of injury, the question is what a reasonable driver would have done by way of prevention or response to the risk: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48 per Mason J. This calls for a consideration of the magnitude of the risk, the degree of probability of its occurrence and any other responsibilities which the driver may have. 83It is not sufficient for a driver to be driving in accordance with the road traffic regulations or with the conditions at the time of the collision, because a reasonable driver is expected to take into account the possibility of inadvertence or negligence by other road users, and particularly pedestrians. Drivers must maintain a proper lookout at all times, not only to see immediate danger, but potential danger, so as to avoid a collision with the physically vulnerable plaintiff who comes into the vehicle's path. 84The question of what constitutes a proper lookout where the pedestrian is intoxicated, and/or runs across the road suddenly, has been the subject of analysis in a series of decisions in the High Court and in the NSW Court of Appeal. 85The High Court in Derrick v Cheung (2001) 181 ALR 301 held that the driver of a car had kept a proper lookout despite her focus of looking straight ahead, which affected her ability to see the pedestrian emerging through the row of parked cars adjoining her driving lane. 86The principles discussed in Derrick v Cheung were referred to in the NSW Court of Appeal in Dennis v Keep , a pedestrian with a high blood alcohol reading suddenly ran across the road in front of the defendant's vehicle. The defendant had seen the pedestrian beforehand, but had been unable to stop. Foster AJA observed at [18]: "Indeed in the recent decision of the High Court in Derrick v Cheung (2001), High Court Appeal 48, it is indicated, in my view, that, in cases of this kind, a common sense overall appraisal of the situation confronting a motorist, travelling within the appropriate speed limits, when a pedestrian enters his or her line of travel, is required, rather than an over-meticulous evaluation of what might have occurred if he or she had been driving at a lesser speed." 87The principles discussed in Derrick v Cheung were also applied in Knight v MacLean [2002] NSWCA 314, where an inebriated pedestrian stepped in front of the defendant's car without prior warning. Heydon JA, with whom Meagher JA and Young CJ in Eq agreed, said at [68] - [69]: "[68] It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. Yet in the circumstances of the present case the trial judge's test would entail that duty. [69] The plaintiff bore the burden of proving negligence on the part of the defendant. This meant that in substance the plaintiff bore the burden of proving that the defendant failed to keep a proper lookout and of proving that if he had kept a proper lookout, he would have seen the plaintiff in sufficient time to avoid the collision. These burdens could not be discharged by the mere fact of the collision. To the extent that the nature of the locality at the time of the accident called on the defendant for an explanation as a practical matter, an acceptable explanation consistent with keeping a proper lookout, for the defendant seeing the plaintiff only at the last moment may be inferred from the circumstances." 88Mr Barry QC referred to Manley v Alexander [2005] HCA 79 and to Vale v Eggins (2006) 46 MVR 514; (2006) Aust Torts Reports 81-869; [2006] NSWCA 348. In both these cases, the pedestrian was seen on the road some distance away, behaving erratically. Where a pedestrian is noticeable to oncoming traffic by stumbling or behaving erratically on the road, the foreseeability of injury is both very different and very much higher. Courts have tended to find a breach of duty where the conduct of the pedestrian alerts the driver to the possibility that the pedestrian may behave erratically, especially where, if properly attentive to the presence of this pedestrian, the motorist could have avoided the collision by taking appropriate precautions; see also Griffin v Lee-Brown [2000] QSC 299 (pedestrian crouched on the road). 89The plaintiff's submissions assert (paragraph 25) that there was "no evidence that the defendant had braked" and that "the only evasive action that she did take and could have taken in the circumstances was to swerve to the right". I do not accept this submission. The defendant said that she braked, and the manner in which she was able to bring her vehicle to a stop is indicative that she did in fact brake and swerved to the right in an attempt to avoid the plaintiff. As is already indicated, I decline to draw any inference that the defendant did not brake because there was no evidence of skid marks on the roadway. The police records consisted of a crudely and inaccurately drawn diagram. The fact that there is no notation of any braking does not mean that no braking took place. I do not accept that the defendant could have stopped in time to avoid a collision. Mr Lamplough was able to do so, but he was at a considerably longer distance back. In any event, he was only able to stop 5 metres away from where the plaintiff lay. 90Senior counsel for the plaintiff places great weight on the fact that Mr Lamplough saw the plaintiff a great deal further away from where the defendant saw her. However, both Mr Lamplough and the defendant saw the plaintiff at the same time. Mr Lamplough had the advantage of seeing the plaintiff from a further distance, which meant he was able to stop in time. The defendant was unable to do so. Conclusions concerning liability 91Accordingly, I do not accept that the defendant's awareness of the plaintiff was late, or in breach of her obligation to keep a proper lookout. The speed at which the plaintiff chose to cross the road, in the path of oncoming traffic, would have taken any motorist by surprise. If I have erred in this regard, then the inevitability of this accident, and the issue of causation, would mean that if by reason of the failure to keep a proper lookout the defendant failed to see the plaintiff either standing on the footpath or about to commence or commencing a run across the road, an accident was inevitable. 92I note that the inevitability of this accident is the primary submission of the defendant. I am satisfied, however, that the defendant, who was approaching an intersection with which she was familiar, where there was a barrier on one side of the road which would prevent pedestrian crossing, was watching the road ahead of her, and that this constituted in the circumstances keeping a proper lookout. 93In the event that these findings concerning liability are in error, I set out my findings concerning contributory negligence. Contributory negligence 94It is not in dispute that the principles explained in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; (1985) 59 ALJR 492; (1985) Aust Torts Reports 80-321; [1985] HCA 34 would, if applied to the facts of this case, result in a significant reduction of damages for contributory negligence. The issue is the percentage. 95The plaintiff's submissions ask me to take a number of factors into account, in submitting that an appropriate percentage for reduction would be 40 - 60%. 96The first is that the defendant was driving a 4-wheel drive motor vehicle capable of inflicting catastrophic injuries. I was not taken to any authority on this point, or to any expert evidence as to what different features, if any, arose from the circumstances of the defendant driving a 4-wheel drive. 97In Imbree v McNeilly & Anor (208) 248 ALR 647 the High Court extensively reviewed the law of contributory negligence in an appeal where the appellant had permitted a 16 year old to drive a 4-wheel drive motor vehicle. The issue of the danger caused by a 4-wheel drive being a relevant matter to determine such an issue was neither raised nor discussed. 98In the absence of evidence to support this claim, I am of the view that it is not a factor which should mitigate any claim for reduction of the contributory negligence percentage. 99The second is that the plaintiff had misjudged the speed of approach of the defendant's vehicle and failed thereby to exercise reasonable care for her own safety because she was intoxicated. However, she had not set out on a night of drinking without making proper arrangements for a safe return home, in that she had made arrangements with her daughter to pick her up. She had been let down by her daughter, and had been unsuccessful in telephoning a taxi from the hotel, which was why she "found herself on the kerb trying to find transport home" (written submissions, paragraph 51). It is submitted that there is a distinction to be drawn between an intoxicated pedestrian who goes to a hotel intending to drink a substantial amount of alcohol but makes no arrangements to get home safely and a person who finds themselves "marooned". 100There is no evidence that the plaintiff misjudged the speed of the defendant's vehicle. Mr Lamplough's statement clearly shows that the plaintiff was not looking at the defendant's vehicle at all. She ran across the road without looking. The defendant points out that the plaintiff did not call either Ms Russell or her daughter in support of the claim that the plaintiff made proper arrangements to be collected and found herself marooned when her daughter failed to collect her. Nor is there any explanation as to why, if the plaintiff's daughter was to collect her at 10.00pm, she was still in the street at 1.30am. 101The plaintiff's written submissions propose that a proper apportionment of contributory negligence should be between 40 - 60% on the basis that this was the same percentage as was adopted by the trial judge in Turkmani v Visvalingam [2009] NSWCA 211. 102However, the trial judge's finding of 60% was set aside on appeal, by majority, and a finding of 80% made by the Court of Appeal (Hodgson JA at [56], McColl JA at [60]). 103Furthermore, the pedestrian in Turkmani emerged at a jogging pace (3.4 m/s) to cross the road against a "Don't Walk" sign at an intersection, at the peak hour time of 5.25 p.m. 104The factual situation here is very different. Not only was there no "Don't Walk" sign, but there was a barrier on the opposite side of the road. The reduction for contributory negligence should start at a level higher than Turkmani in order to take into account the higher level of contributory negligence. 105The inevitability of the accident is such that the degree of contributory negligence is exceptionally high. 106Sections 138(3) and 138(4) Motor Accidents Compensation Act 1999 (NSW) provide: "(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage." 107The question what is "just and equitable" is explained by Giles JA in MacKenzie v Nominal Defendant (2005) 43 MVR 315; [2005] NSWCA 180 at [63]. Giles JA stated: "[63] What is just and equitable must be determined in a principled way, and as Priestley JA observed (in a judgment dissenting in the result) in Bradshaw v Wallis (1996) 23 MVR 472 at 481, "... to comply with s 74(3) requires the court to arrive at a percentage which inevitably involves as part of the process some kind of comparison between the balance to be attached (in this case) to the driver and the plaintiff". In the comparison, the degree of departure from the standard of care of the reasonable man and the relative importance of the acts of the parties in causing the damage will call for attention. In the present case, neither the appellant nor the respondent suggested that the approach described in Podrebersek v Australian Iron & Steel Pty Ltd was inappropriate." 108The appropriate exercise to determine what is "just and equitable" is to balance the blame to be attached to the driver and to the plaintiff. The degree of departure from the standard of care of the reasonable person, and the acts of the parties in causing the damage, are each of importance. 109In MacKenzie v Nominal Defendant at [93], Giles JA warned: "[93] When arriving at his assessment of 100% contributory negligence, the judge proceeded upon his findings as to the appellant's conduct and his actual knowledge. He did not exclude from his consideration that the appellant was intoxicated, or the circumstances in which he came to be intoxicated. His attention was drawn to those matters in the appellant's submission recorded in his [165], and he did not reject them as irrelevant. Rather, given his findings as to the appellant's conduct and knowledge, he did not think they took the case out of a worst situation of contributory negligence. The appellant's complaint should not have been that the judge applied an objective test in determining a just and equitable percentage reduction, but that his subjective basis in the appellant's conduct and knowledge was flawed because not tempered by regard to whether in acting as he did, and with the knowledge found, the appellant's intoxication caused him to act impulsively and without full consideration of what might occur." 110In the present case, the plaintiff's evidence was that she was using her mobile telephone to attempt to get transport home. She was sufficiently aware of her actions to be able to make such arrangements. While the plaintiff's blood alcohol level of 0.16 was high, her prior history (set out in more detail in the section of this judgment on quantum) is that of a person with a long history of consumption of alcohol. Unlike the plaintiff in Vale v Eggins , who was a teenager and unused to alcohol, the plaintiff is a middle-aged woman with a long history of alcohol use. She was well aware of what she was doing. 111This accident occurred entirely as a result of the inattention of the plaintiff, who ran into the path not only of the defendant, but also Mr Lamplough, in circumstances of the utmost danger. Some form of impact was inevitable and accordingly contributory negligence should be assessed at 100%. Conclusion concerning liability 112Accordingly, in the event that I have erred in regard to liability, my finding as to contributory negligence would be a finding of 100%. Quantum issues 113In the event that any findings I make concerning quantum are of assistance if my findings concerning liability and contributory negligence are erroneous, I set out findings in relation to quantum. It is necessary to deal with each of the plaintiff's injury separately, as many are exacerbations of medical problems which the plaintiff had suffered prior to the accident. Causation issues 114The plaintiff clearly sustained a traumatic brain injury in the accident and there is a MAS assessment from Dr Cameron grounding an entitlement to non-economic loss. It is submitted on behalf of the defendant that this finding is not binding on the issue for consideration concerning quantum, namely whether the problems identified are caused by the accident. 115The plaintiff was assessed by a series of clinical psychologists and neuro-psychiatrists following the accident (Ms Walker, 15 November 2001; Mr Taylor, 14 May 2002 (not tendered); Dr Langeluddecke, 15 October 2004, 22 March 2011; Ms Batchelor, 22 September 2010). 116Ms Batchelor's report states, as the defendant points out at paragraph 70 of the written submissions that "there is no definitive evidence of an injury related impairment of memory". Ms Batchelor considered it was possible that the plaintiff's prior history of alcohol abuse, domestic violence and depression may explain the plaintiff's decreased functioning. There are similar comments in the report of Dr Langeluddecke of 22 March 2011. 117A significant problem in relation to causation is the lengthy gap in relation to some of the reports; for example, Dr McCarthy's report of 26 November 2001 has not been updated. In addition, as have been noted elsewhere, the Particulars were never amended after 2004. 118A particular difficulty is Dr Jungfer's comments that she had difficulty assessing the plaintiff because the plaintiff came to the interview under the influence of alcohol. The plaintiff when asked about this in cross-examination denied that she was affected and also denied that this had been raised with her by Dr Jungfer. 119The report tendered by the plaintiff of Dr Steven Buckley, a consultant physician in rehabilitation (17 September 2010), does not refer to what are clearly chronic and longstanding alcohol problems or domestic violence history. 120In addition, there is a report of Dr Sydney Smith, a renowned neuro-psychiatrist. He states that the accident has caused no significant change to the plaintiff's intellect, memory or personality. 121The failure to update particulars after 2004, gaps in reports and failure to provide a full history to treating doctors such as Dr Steven Buckley create real problems for assessment of the degree to which the plaintiff suffered injury. 122As can be seen by an analysis of each of the injuries claimed, of which the head injury is the most significant, this is a problem in relation to all aspects of the plaintiff's quantum claim. 123I shall now deal with the plaintiff's history of back problems. The plaintiff's history of back problems 124The plaintiff was on light duties or off work up until the time of the accident by reason of an injury she sustained in the course of her duties at Unistrut Pty Ltd (see the report of Dr Wallace, 22 November 2000; Exhibit 2, document 4). She commenced a course of physiotherapy (which she only continued for one week, contrary to the information provided to the plaintiff's motor vehicle reconstruction expert) as well as allergy medication. She remained off work for some time, according to the report of Dr Raymond Wallace of 22 November 2000, from approximately the beginning of November. During this time she was involved in a series of domestic incidents in which she was a victim; police were called to the house on 7 and 31 January and again on 11 April, and on 12 March, Susan Arnold noted that following an altercation between the plaintiff and her then husband, she had been struck with such force that her breast implant had leaked (Exhibit 2, document 6). By 18 May 2001, the plaintiff was complaining to Dr Mastroianni that she was only able to work three hours a day (the plaintiff being on light duties from some time towards the end of 2000) and was unable to do any house work, which was being done by her daughter. 125In a report dated 20 June 2001 Dr Peter E Giblin states: "DIAGNOSIS Soft tissue injury to her back, with referred symptoms to the legs, consistent with the disc bulge at L4/5 noted on the CT scan and MRI scan, and consistent with her symptoms and history of injury. PROGNOSIS Her condition has stablised. Surgery is unlikely to be required. Her symptoms will persist on an episodic and indefinite basis, permanently restricting her from heavy repetitive bending lifting and twisting. In addition, these restrictions will apply in parallel to her domestic and recreational activities. There will be a gradual deterioration, as she gets older. Her back will be more susceptible to repeat soft tissue injury as well as the effects of post-traumatic degenerative change. TREATMENT AND MANAGEMENT On going therapy will be largely medial and directed by her family doctor. The costs will be similar to that over the last six months on a pro-rate basis and will be required indefinitely. At the same time, she will require at least seven hours per week physical assistance, indefinitely, for her heavy domestic responsibilities. I would anticipate that she will be permanently unfit for her pre-injury job, and the most optimistic scenario, would be a light sedentary work environment, preceded by the appropriate vocational rehabilitation. Meanwhile in the short-term, she remains fit for her restricted part-time duties. OPINION It would be my view that, notwithstanding a certain amount of presumed, pre-existing asymptomatic age-related changes, this lady has, directly as a result of her subject injury of August 2000, 25% permanent impairment of her back, with 7.5% permanent loss of efficient use of each leg at or above the knee, taking into account all symptoms in each leg as a whole." 126In a report dates 7 November 2001, Dr John Roth states: "Although she was involved in a road traffic accident on the 08/07/01 which aggravated her back condition, she has in fact stopped working in approximately April or June 2001 because of back pain and her incapacity at this time is still substantially related to the injury which she sustained at work in August 2000." 127On 15 November 2001, Dr Walker provided a report stating that the plaintiff was capable of returning to her previous work prior to the motor vehicle accident (Exhibit C, document (d)). I note, however, that Dr McCarthy in an assessment of 15 November considered that she was not fit to work due to her brain injury. I have dealt with this history in the next section. 128The plaintiff undoubtedly suffered an exacerbation of her prior back injury in the motor vehicle accident. The degree to which the motor vehicle accident was a contributing factor appears to have been minor. The plaintiff's history of head injury 129The plaintiff had a series of violent relationships with men. She told Dr Bruce Westmore on 17 August 2005 that 26 years beforehand, when married to her first husband, she had a "nervous breakdown" (these words are put in inverted commas by Dr Westmore in his 19 August 2005 report, at page 5). He went on to describe her as informing him that she was thrown out of a moving vehicle by her first husband, following which she "probably" became depressed as she didn't want to live and feared her husband may kill her. 130The plaintiff's daughter Tanya describes the violent home in which she grew up and two occasions when the plaintiff had to be taken to hospital after she had slashed her wrists. The plaintiff was not cross-examined about this, and I shall disregard it. 131Dr McCarthy's report of 15 November considered the plaintiff was not fit to work by reason of her brain injury (Exhibit C, document (e)). There is, however, a gap between the report of Dr Sydney Smith of 5 September 2002 and October 2004, when the plaintiff was reviewed by Dr Langeluddecke on behalf of the defendant. The plaintiff had bilateral breast implants removed on 28 November 2002 but it is not in dispute that this is unrelated to the accident. Apart from a vocational assessment of Ross Girdler dated 17 February 2005, no further material is served on behalf of the plaintiff, who the following month, on 18 March 2005, killed her de facto partner and was taken into custody, subsequently pleading guilty to manslaughter. A report prepared by Dr Bruce Westmore of 19 August 2005 relates essentially to the criminal charges and the next report served on behalf of the plaintiff was the report of Dr Steven Buckley of 17 September 2010, which as I have indicated, is unfortunately deficient in a number of respects by reason of his not being provided with the relevant information. Other reports served by the plaintiff in September 2010 include reports of Dr Batchelor (a neuropsychologist), Janice Williams (an occupational therapist), and Dr Nigel Curtis (an oral and maxillofacial surgeon). 132To these were added the report of Dr Jungfer in October and a report of a Dr Scoppa in December concerning the plaintiff's hearing loss, which had been a problem of the plaintiff for a considerable period of time. 133These are enormous gaps in the plaintiff's medical history. During the periods of time covered by this gap, significant other forces and issues, such as the plaintiff's domestic violence problems and alcohol problems, clearly played a significant part in her decreasing intellectual ability and health problems. 134Part of the problems in relation to the plaintiff's mental health problems is the plaintiff's denial about alcohol problems. For example, she denied having alcohol related blackouts (Dr Westmore, 17 August 2005, page 5). Her alcohol consumption is of long standing; she told Dr Westmore that her alcohol consumption "increased" after she met her late partner Jeff because he "pressured her" to drink although she did not drink daily. However, the information contained in Dr Jungfer's report about the plaintiff attending her premises affected by alcohol is one of a series of matters which indicated the plaintiff has a long standing problem in relation to alcohol, with which she clearly has not come to terms. Neuropsychological and neuropsychiatric reports 135Dr Pauline Langluddeke, in her report of 22 March 2011, has helpfully summarized the contents of the reports she appraised in her report of 15 October 2004 and in particular the neuropsychological reports of Dr A Walker (assessment date 15 November 2001), Mr W J Taylor (14 May 2002) and Dr J Batchelor (22 September 2010), and I have been guided in my interpretation of these reports by her helpful comments. All noted the well below average intellectual and cognitive function; Mr Taylor was uncertain whether the impaired results represented acquired or longstanding functions. Dr Batchelor's report, prepared eight years after the other two, notes the plaintiff's functioning had decreased since earlier testing in 2002. Dr Batchelor's report considered possible reasons were alcohol abuse, domestic violence, emotional factors and not trying hard enough in the test. However, as Dr Langluddeke notes (page 4), Dr Batchelor does not comment on the plaintiff's longstanding history of alcohol abuse as documented in police records that were available to her. Although Dr Batchelor refers to alcohol as a possible factor, it would have been helpful if this issue had been addressed in the light of that material. Psychiatric evidence 136The plaintiff has some real difficulties with psychiatric evidence to support her claim. The report of Dr Sydney Smith of 5 September 2002 refers to brain damage exacerbated by alcohol and narcotic abuse, and his report of 15 November 2004 suggests, as Dr Langluddeke notes (at page 6 of her 22 March 2011 report) that there was no evidence of cognitive decline after the accident. 137The report of Dr Bruce Westmore, prepared on 19 August 2005, is a careful and helpful report on which I have placed a great deal of weight, but it is a report prepared for the purposes of the charges relating to the death of the plaintiff's partner and deals with her claimed loss of memory of this event, rather than specifically addressing the injuries in the motor vehicle accident, although this is referred to as a factor. 138Dr Akkerman assessed the plaintiff in June 2007 on referral from the Motor Accidents Authority Medical Assessment Service and diagnosed an Adjustment Disorder with Anxious and Depressed Mood (Mild) as a result of the accident, which a Whole Person Impairment (Psychiatric) at 5%. Other factors relevant to the plaintiff's intellectual difficulties 139Dr Westmore considers that the plaintiff's problems arise from a combination of difficulties, namely: (a)Constitutional or genetic factors; (b)The head injury following the motor vehicle accident; (c)"Possible acute episodes of alcohol consumption"( page 9 of his report); (d)An extended history of extreme violence from her partner Mr Cook. I note the plaintiff told Dr Westmore that her first husband was also violent, and threw her from a car, and that her daughter Tanya refers to the plaintiff's leg being broken, as well as numerous other serious episoded of domestic violence; (e)These problems are complicated by her borderline intelligence and hearing problems. Conclusions concerning the plaintiff's head injury 140I accept the submissions of the defendant that there are significant causation issues in relation to the plaintiff's head injury. The plaintiff has, however, suffered a significant head injury in the accident. The plaintiff's history of breast implant problems 141The plaintiff had two breast silicone implants in 1980. 142A report dated 12 March 2001 by Susan Arnold, an occupational therapist, records that the plaintiff discussed her breast implant leak with her general practitioner, Dr Bong, on 21 st February 2001, and that: "It was clearly understood by myself that both Dr Bong and Ms Russell did not feel that the leak was due to any injury sustained at work. Rather, it was attributed to an altercation Ms Russell had experienced when with her then husband." 143In his report of 15 May 2002, Dr Lyons notes the ultrasound ordered by Dr Bong on 7 February 2002 showing silastic extravasion "reasonably rules out the pedestrian accident as a cause." 144There is no doubt the plaintiff suffered a haematoma to the breast during the accident as this is recorded in the hospital notes. However, the breast implant problem was pre-existing. 145The removal of implants was recommended by Dr Thomas Lam in his report of 12 July 2002. He notes she fell on her chest in the August 2000 work accident and "subsequently" developed discolouration. He does not suggest that this was as a result of the accident. 146In her evidence, the plaintiff referred to pain in her breasts as a significant problem for her. The plaintiff told Dr Bruce Westmore on 17 August 2005 that her partner Jeff, with whom she had commenced living after the motor vehicle accident, used to kick her frequently in the breasts and that she "now gets chronic bleeding, particularly in the right breast." 147The plaintiff's breast implant problems are unrelated to the motor vehicle accident. The plaintiff's history of deafness problems 148The plaintiff was first diagnosed with 35% deafness in 1970. Professor Jones, in his report dated 30 June 2004, notes she said this was due to German measles (at p. 8) but Dr Sydney Smith notes the possibility of accident-related trauma. 149The plaintiff's longstanding history of deafness problems pre-dates the accident. I note the opinion of Dr Sydney Smith but, on the balance of the evidence, I am not satisfied that any problems with deafness increased by reason of the accident. The plaintiff's dental and weight loss problems 150The plaintiff told Dr Giblin in June 2001, before the motor vehicle accident, that she had lost a lot of weight following her work injury, dropping from a weight of 65 to 52 kilos. Her weight is noted as 6 stone in November 2001 by Dr Roth, suggesting her weight before and after the accident remained relatively stable. 151The plaintiff's dental problems were not the subject of submissions. She told the Court she lost all but two of her teeth. She now has dentures. Dr Curtis says she lost "several teeth" in the accident, as well as suffering an undisplaced fracture of the right orbit. This is a significant injury and I have taken it into account in assessment of damages. 152The plaintiff's weight loss problems pre-dated the accident and I accordingly had not taken it into account. Conclusions concerning non-economic loss 153The plaintiff claims $345,600, a sum which was expressed to be "80% of the most extreme case" (see the plaintiff's outline of damages). As Mr Barry QC agreed in the course of his oral submissions, that is not the basis upon which to approach awards of non-economic loss in motor vehicle accidents. Noting however, the issues of causation raised by the defendant, I accept the defendant's submissions that since there is evidence of traumatic brain injury and some aggravation of pre-existing psychological problems, as well as back problems, a figure of $240,000 is appropriate. Past and future out of pockets 154Past medical expenses are hospital expenses ($6,815.65) and a HIC current charge of $891.10, making a total of $7,706.75. This amount should be awarded. There is no claim for future medical expenses and the plaintiff said she takes no medication. The plaintiff's partner, who gave evidence, gave evidence concerning the plaintiff taking medication but this evidence was both vague and unsatisfactory and in circumstances where the plaintiff was quite definite that she was not taking medication, and no claim is made for it, I would not be prepared to make any award. Past and future loss of earning capacity 155The plaintiff was already on light duties at the time of accident. I note the opinion of Dr Giblin set out in more detail in the section concerning the plaintiff's back injuries. The plaintiff had already suffered significant diminution in her earning capacity prior to the accident. There is a strong argument that the plaintiff's earning capacity may not have been further compensable by reason of her pre-existing condition ( Graham v Baker (1961) 106 CLR 340; [1962] ALR 331; (1961) 35 ALJR 174). 156The defendant in written submissions (paragraph 88) points to her severe asthma, noting that she presented to Blacktown Hospital Emergency Department in April 2000. I do not regard this as being of significance. Persons who suffer from asthma still have a significant work capacity and I do not regard her asthma problem as relevant to her capacity to work. 157However, the plaintiff does have a significant criminal record for dishonesty, as well as a conviction for manslaughter. There are real problems for any employer confronted by a perspective employee with a criminal record such as the plaintiff's. In addition, the plaintiff's significant alcohol problems remain untreated. 158Section 126 of the Motor Accidents Compensation Act 1999 (NSW) provides as follows: "(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 159The strong likelihood is that the plaintiff would never have returned to any gainful employment. The list of factors given by Dr Westmore in his report of 17 August 2005, which is set out earlier in this judgment, indicates that the head injury following the motor vehicle accident is a part, and only a small part, of significant problems the plaintiff has faced in relation to her intellectual capacity for some time, problems which were about to engulf her whether she suffered this motor vehicle injury or not. 160The plaintiff has not satisfied me that she is entitled to any assumptions about future earning capacity. The plaintiff's "most likely future circumstances but for the injury" would have been a departure from the workforce due to her increasing alcohol related problems and the domestic violence cycle in which she had become entrapped. 161The plaintiff claims past economic loss of $94,793.97, plus superannuation loss of $10,245.94 and long service leave loss of $2,501.97. This has been framed, as I understand it, to take into account that the plaintiff was in jail and therefore unable to earn for the period of her custodial sentence, but assumes that she would have been able to obtain employment whilst on probation. 162Doing the best I can, I am satisfied that there is a small economic loss for the period from the time of the accident in 2001 upon until earlier 2005, when her alcohol and other related problems, in my view, took over her life, and played an important part in the circumstances in which she killed her then de facto partner. 163Accordingly, I would award past economic loss in the form of a cushion , to include some entitlement for superannuation and past long service leave, of the kind the reflects the plaintiff's part time light duty employment prior to the accident. Doing the best I can with the very limited information I have, I would assess this past economic loss as a cushion of $30,000. 164In the future, however, the plaintiff is unemployable by reason of her ongoing alcohol problems, her criminal history and her increasing deafness. I would assess her future loss of earning capacity as nil. Past and future home care assistance 165The plaintiff's evidence was that she lived alone, although her boyfriend came to stay with her occasionally. She has clearly been able to look after herself and has lived alone since going to prison for killing her de facto partner. She was able to look after herself in prison and since that time she told the court she has lived alone. 166Mr Barry QC put to me that the plaintiff's presentation was that of a person who plainly needs support of a physical and organisational nature. The plaintiff's evidence was that she got lost and relied upon her boyfriend to take her to medical appointments, as otherwise she would get lost. I am not satisfied that any problems the plaintiff has add up to a sufficient amount so as to overcome the threshold imposed by s 128 of the Motor Accidents Compensation Act 1999 (NSW). I note there is a report of Ms Barela to the effect that five hours per week of organisational support is appropriate; this is below the threshold. 167Dr Buckley's opinions suffer from a defect that he had insufficient evidence about the plaintiff's alcohol and other related problems. 168In relation to care provided by the plaintiff's boyfriend, Mr Ackley, there is no evidence that the cost of any such assistance would be incurred, and any claim for commercial care should be rejected: Miller v Galderisi [2009] NSWCA 353. Mr Ackley was, if anything, even vaguer than the plaintiff, being unable to tell the court whether he lived with the plaintiff or not, the name of his employer, whether he worked full or part time and what he did for a living. 169Accordingly, I would not make any allowance for past or future home care. Costs 170The parties asked me to reserve costs with liberty to apply and I have done so. Orders (1)Judgment for the defendant. (2)Liberty to apply on three days notice for any argument concerning costs. (3)Exhibits retained for 28 days. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2011