District Court New South Wales Medium Neutral Citation: Helen Kamateros v Belinda Monk [2014] NSWDC 6 Hearing dates: 24 - 27 February 2014 Decision date: 07 March 2014 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and judgment for the Plaintiff. For Orders see [119] Catchwords: Motor vehicle accident; pedestrian plaintiff; contributory negligence Legislation Cited: Motor Accidents Compensation Act 1999 Evidence Act 1995 Cases Cited: Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244 Allianz Australia Insurance Limited v Kerr [2012] NSWCA 13 Burden v Rath (1986) Aust Tort Reports 80-050 Dungan v Chan [2013] NSWCA 182 Egan v Mangarelli [2013] NSWCA 413 Golden Eagle International Trading Pty Ltd & Anor v Zhang and Anor (2007) 229 CLR 498 Harper v Bangalow Motors Pty Limited [1990] NSWCA 85 Husher v Husher (1999) 197 CLR 138 Ma v Keane [2003] NSWCA 50 Manley v Alexander (2005) 80 ALJR 413 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Nominal Defendant v Gabriel [2007] NSWCA 52 Nominal Defendant v Lane [2004] NSWCA 405 Penrith City Council v Parks [2004] NSWCA 201 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529 R v XY (2010) NSWCCA 181 State of New South Wales v Moss (2000) 54 NSWLR 536 Tame v New South Wales (2002) 76 ALJR 1348 Tsuji v Metromix Pty Limited (1998) 27 MVR 401 Turkmani v Visvalingam [2009] NSWCA 211 Vale v Eggins [2006] NSWCA 348 Category: Principal judgment Parties: Helen Kamateros (Plaintiff) Belinda Monk (Defendant) Representation: A D Campbell (Plaintiff) AJJ Renshaw (Defendant) Colin Daley Quinn Solicitors (Plaintiff) Ferguson Lawyers (Defendant) File Number(s): 08/319964 Publication restriction: Nil Judgment The Plaintiff's Claim 1The plaintiff claims damages for personal injuries she suffered on 11 November 2005. The plaintiff was then 18 years of age, and was a pedestrian on the Princes Highway at Kogarah when she was struck by a vehicle being driven by the defendant. 2The plaintiff suffered severe injuries including a fractured mandible, a fractured right fibular and injuries to her right knee, together with bruising and abrasions. She also suffered the loss of consciousness. She was taken by ambulance to St George Hospital where she underwent treatment for her fractures. She was discharged on 17 November 2005. 3The plaintiff commenced these proceedings on 8 November 2008. Paragraph 5 of her Statement of Claim pleads an admission by the defendant's CTP insurer of a breach of duty of care, together with an assertion of contributory negligence by the plaintiff of 70%. The defendant filed a Defence in which she denies liability, notwithstanding that earlier admission of breach of duty of care. That admission was made pursuant to s 81 of the Motor Accidents Compensation Act 1999 ("MACA"). The defendant relied on Nominal Defendant v Gabriel [2007] NSWCA 52 to assert its right to put liability in issue, and the trial proceeded on that basis. Circumstances of the Accident 4On the day of the accident the plaintiff had completed her Higher School Certificate exams, and had gone to the St George Leagues Club with two school friends to celebrate. Just before 8pm, the three young women left the Leagues Club and were intending to travel by bus to a nearby fast food outlet for dinner. The St George Leagues Club is situated on the eastern side of the Princes Highway at Kogarah. The bus stop was on the western side of the highway. At that point, the highway comprises three lanes for vehicles travelling south and three lanes for vehicles travelling north with a concrete median strip. The point at which the three women decided to cross was approximately 60 metres south of the intersection of the highway and Jubilee Avenue, an intersection controlled by traffic lights. 5The plaintiff and her two friends were therefore crossing from east to west. They did not cross together, but rather, one of them, Marina Naumceska, crossed first, and the plaintiff and another friend, Natalie Mitrevski, commenced to cross together. Marina crossed the three south-bound lanes and stopped on the concrete median strip. The plaintiff and Natalie were following her, when the defendant's vehicle approached from the north. Natalie stopped in the second lane. The plaintiff proceeded into the third lane, closest to the median strip, when she was struck by the defendant's vehicle. The Evidence Relating to Liability 6The plaintiff gave evidence that after she and her two friends left the St George Leagues Club they walked along the side of the Princes Highway for about 10 metres to a point approximately 60 metres south of the intersection with Jubilee Avenue. The plaintiff gave evidence that Marina suggested that they cross the road as a bus would be coming soon. 7The plaintiff gave evidence that she looked left and right. She saw two or three cars at the traffic lights at Jubilee Avenue in the right hand lane with their indicators on, indicating that they would turn right. She began to walk across the road. 8The plaintiff gave evidence that Marina was crossing in front of her, and Natalie was to her right. As she crossed through the second lane she was looking at Marina, who at that time had reached the median strip. She then proceeded into the third lane when she was struck by the car. 9The plaintiff gave evidence that she was walking across the road and that she heard nothing prior to being struck. She gave further evidence that she had had one alcoholic drink at the club, that the weather was perfect and visibility was very good. She said it was still light, but "more dusk". 10In cross-examination the plaintiff gave evidence that she had personally measured out the distance from Jubilee Avenue as 60 metres. She had been at the club for one and half hours before leaving and had consumed one "West Coast" alcoholic drink. 11The plaintiff denied that she hurried across the road and that she was running. Marina had crossed first and Natalie and she had crossed together. When asked how she came to be in front of Natalie, she said: "I would assume that she stopped." 12The plaintiff gave evidence that she looked left and right, but when she looked right she only saw two vehicles stopped in the right turn lane on Jubilee Avenue at the traffic lights and that she saw no other vehicles. 13It was put to the plaintiff that she was using her mobile phone when she was crossing. She said that she did not use her phone when crossing the road, however, she did intend to use it before she crossed the road, while she was walking down the footpath to send a text message to her mother. She was holding it in her hand but down by her side, as she crossed the road. 14The plaintiff identified her claim form (exhibit 2) and her description of the accident. She agreed she had stated, "I was intending to use my mobile phone to text my mother but did not do so since I and my friends started to cross the road". She agreed there was no reference on the document to seeing two cars in the right hand turn lane. It was put to her that had she looked, she would have been able to see the car that struck her before she left the kerb, to which she answered "I definitely looked. I remember looking but no, I did not see a car coming towards us". 15The plaintiff saw the car in the split second before it hit her. She described that as the moment of impact. She said that she had not seen it while crossing the road. 16The plaintiff had made a statement to the Police in December 2005. She agreed that she had told the Police that she did not remember whether she checked the traffic before she crossed. 17The plaintiff said that it was incorrect to say that they were in a rush to cross the road. She denied that she was still sending a message on her phone as she crossed the road. She said she intended to use her mobile phone but did not do so. She then said that she had begun texting her mother but clarified that to say that she was not using the phone as she crossed the road. 18The plaintiff gave the following evidence about the car: "Q: I'm just asking you to agree that this is what you said (to the Police)? A: Nat and I were in the second lane and I looked to my right and I seen Nat, then I saw a little red car." Q: Is that right? A: Yes. Q: What I'm putting to you is this; had you looked at any stage whilst you were crossing the road, the car wouldn't have hit you, would it? A: I don't - I don't know how you want me to answer that because I did look and I hadn't seen it, so-- Q: What I'm putting to you is that-- A: I didn't see it. Hey? Q: Whilst you were crossing the road you at no stage looked to your right, do you understand that? That's what I'm putting to you. A: Yes thank you. That's better. I understand that. Q: Do you agree or disagree? A: I did look around while I was crossing the road. Now for some reason I hadn't seen this car. I looked to my right definitely because I remember seeing Natalie. May be my oberservation wasn't as perfect as it could have been." 19It was put to her that Natalie had made a statement in which she had told the Police "I stopped in lane 2. Helen did not stop, she was using her mobile phone". The plaintiff said that was incorrect. 20It was put to her that the three of them had run across the road, which she denied. She said that she was walking normally and not in a hurry and that it would take 5 to 10 seconds for her to cross the first two lanes. 21The plaintiff gave evidence that she knew it was important to keep a look out for traffic at all times and that she had ample opportunity to see the car if she had wished to do so. It was put to her that she had her mind elsewhere, to which she replied "No, I was not rushing, but I looked and didn't see the car". 22The plaintiff denied that she collided with the left-hand side of the bonnet of the car, but rather the car hit her right-hand side, that is the front of the car on the left-hand side of the bonnet hit her. She did not see Natalie stop and she was looking straight ahead at Marina who was on the median strip. 23Marina Naumceska gave evidence that the three young women left the club together with the intention of crossing the Princes Highway. When asked whether she looked both ways when she started to cross, and whether she saw anything, she said "I don't remember". She said that she crossed with a brisk walk, as she crossed that road every day. The plaintiff was behind her, and she became aware that she was hit when she was on the median strip. 24In cross-examination Ms Naumceska agreed that her recollection was pretty hazy. When it was put to her that she may have been hurrying, she said "I don't normally 'stroll'". She had heard the impact of the vehicle when it collided with the plaintiff. She was facing across the road when that occurred. 25Natalie Mitrevski gave evidence that when she was crossing the road she looked to see if there were cars coming to her right and did not see any cars. She proceeded to walk and Marina was just in front. She could not remember exactly where the plaintiff was, but she believed she was either beside her or behind her. When she looked to her right she could not see any cars coming, but she knew that cars were coming on her left. 26As Natalie walked across, when she was in the middle lane, she saw a car coming from her right very slowly. She could not estimate the speed of the car, but when she saw it she stopped. The reason she stopped was to let it pass, but as it did so, it hit the plaintiff. 27In cross-examination it was put to Natalie that the three of them were hurrying and she said they were walking at a fast pace. She had made a statement to the Police on 19 December 2005. In that statement she had told the Police that she had seen a car coming towards Helen and herself, and that she had stopped in lane 2. She agreed that she told the Police that Helen was using her mobile phone and did not stop. 28She also agreed that she had told the Police as follows: "Q: As Helen was crossing the road, did she look up at any stage? A: When we first crossed she looked, but for the rest of the time she had her head down." 29The plaintiff tendered a report of Mr N C McDonald, traffic engineer, dated 14 May 2007. Objections were taken to substantial parts of the opinions expressed in that report, which were substantially upheld (see separate judgment dated 25 February 2014). What remained of the report, being pages 1-11, paragraphs 5.30 - 5.33 and paragraph 6.5 (vii) became exhibit A. One of the salient assumptions upon which Mr McDonald's opinions were based was that the point of impact occurred between 20 and 30 metres south of the intersection of the Princes Highway and Jubilee Avenue. That assumption was not borne out by the evidence. I do accept the following opinions based on the examination of the damage to the vehicle by Mr McDonald: "4.8 This damage is consistent with a pedestrian being struck by the leading edge of the vehicle, at a position generally in line with the passenger side edge of the bonnet so that the pedestrian is wrapped onto both the bonnet and front guard resulting in the buckling and indentation to both components. 4.9 Being struck by the leading edge of the vehicle is also consistent with the reported fractures to the pedestrian's right leg." 30I also accept the opinion expressed by Mr McDonald at paragraph 5.32 of his report, namely, that the travel speed of the vehicle at the time of collision was in a range of 35-40kph. I am not, however, satisfied that the vehicle had previously slowed from a speed of 70kph. I do, however, accept Mr McDonald's opinion expressed in paragraph 6.5 (vii) as follows: "Ms Monk's vehicle has struck Ms Kamateros at a speed of 35-40 kph and at a time that she passed in front of the passenger side of the vehicle." 31The defendant called Nathan Dawson, who had been driving his vehicle in a northerly direction along the Princes Highway. He gave evidence that he saw three young women on the side of the road in the gutter, just past the Sizzler restaurant. That coincided with the plaintiff's evidence as to where they crossed. Mr Dawson gave evidence that he observed the three women cross the road, two went first and then the third girl was slightly behind. They were running and he observed the third woman to get hit. The car that hit her had been very close to them, when they started, about 10 metres away. He gave evidence that the first two women made it to the median strip, but that the third hesitated and was hit. He had seen the vehicle coming from the intersection approximately 60 metres away. The vehicle had proceeded approximately 40-50 metres before they moved off the gutter. When asked of his observation as to how they crossed he said "they pretty much bee-lined across". Mr Dawson also gave evidence that he observed the third woman who got hit by the car to be on her mobile phone at the time. He observed her to have the phone to her left ear. 32In cross-examination Mr Dawson said he could see the woman holding her mobile phone and believed it was to her left ear. When asked when he first recalled that he saw her holding the phone at that time, he said that he saw the phone on the ground when he attended to her after the accident. 33He did not know if he had mentioned that in his Police statement, but agreed that nowhere in that statement had he said that one of the girls had a mobile phone. 34Mr Dawson believed the girls were running before the incident and that she may have been distracted by following the two girls in front of her. He made a statement one hour after the event and believed that he would have told the Police about the mobile phone. His explanation for it not being in his Police statement was that he may have overlooked it at the time. 35Mr Dawson said he was keeping a careful look out and was very aware of the potential danger that might occur had the girls continued to cross the Princes Highway in front of him. He therefore kept a very careful eye on what they were doing. It was put to him that he was mistaken about his observations and that only one of the girls had made it to the median strip. He said he believed that two did. It was put to him that he was not paying attention or that he was mistaken and he said that he was paying attention and that he thought that they would allow the car to pass. It was also put to him that he was mistaken about the girls running and that they were in fact walking, which he denied. It was put to him that the woman who was hit could have had her mobile phone by her side, to which he answered "I don't think so". It was put to him that he had reconstructed his evidence about her using the mobile phone, which he denied. 36Mr Dawson gave evidence that he would have been in a position to stop his vehicle had the girls continued to cross the road, or that he could have swerved to avoid them as there were no vehicles travelling in the lanes next to him. The only vehicle travelling in the opposite direction was the defendant's vehicle. He agreed that the highway was a straight road, that there was no incline and that there were three lanes in both directions. 37When asked to estimate the speed of the defendant's vehicle, he said it was travelling under the speed limit definitely. He observed it slowing down 20-30 metres away from the girls. He gave evidence that "the driver slowed, but no one had run across the road at that stage". He was asked whether the driver could have taken evasive action, to which he replied "No". He believed that the collision occurred in the middle of the three lanes and his recollection was that it was in the middle lane. It was put to him that the defendant could have avoided the collision by swerving to the inside lane, to which he answered "No". His reason for that was that if the vehicle had swerved to the left it would have hit the plaintiff far worse. 38It was put to Mr Dawson that it was not the case that the girls ran out in front of the car when it was only 10 or 20 metres away from them, to which he answered "They shot across the front of the car". 39It was further put to him that when the girls commenced crossing the car was a lot further away than 10-20 metres, to which he replied "No, closer". 40It was put to Mr Dawson that the driver of the vehicle had a lot of time to see the girls in the gutter before they crossed and ample opportunity to stop. His answer was "The way they ran across I don't know how she would have missed them". 41The defendant then called Stephen Alain Dupas who observed the three young women on the footpath prior to them crossing the road. He was seated outside the Sizzler restaurant at a point he marked on exhibit 1, a few metres to the left of where the photograph was taken. He observed the three women standing on the footpath talking. At a point when a vehicle was travelling south towards them, he described what he observed as follows: "Q: What did you see them do? A: Start to run out across the road and a couple of them stopped, went back and with the other one yelling out to the third one to come back also but by then I was locked in on her and she continued across the road. Q: Did you notice anything about her? A: Just that she was running across the road and the traffic was coming and from what I could see it wasn't going to end well." 42Mr Dupas said the vehicle tried to stop and he observed the young woman to run into with the side of the vehicle. His observations were made from an elevated position above the road, sitting on a fence. 43In cross-examination Mr Dupas said that he had been sitting on the fence for a couple of minutes having a cigarette. He did not observe the three woman in the gutter, but on the footpath. He did not keep his eyes on them the whole time but was continually looking at them and back at the traffic. He first saw the vehicle driven by the defendant when it left the traffic lights. He said it was not the only vehicle stopped at the red traffic light. He observed the vehicle to take off from those lights at normal speed and did not recall the car sounding its horn prior to the collision. He had no recollection of seeing it swerve. 44Mr Dupas adhered to his evidence that two of the three women stopped by the end of the first lane and moved back. From that point he was focussed on the woman who continued. He described her as "still running across the road". 45He observed the vehicle travelling in lane 3 and the plaintiff just ran into the side of the car. Before that happened, her friends yelled out and she froze, but then ran into the side of the vehicle. She was thrown forward and slightly to the left. She hit the left-hand side of the vehicle around the front wheel area. 46Mr Dupas could not recall exactly where on the road she was when she froze for a split second. He said it was somewhere near the middle, before she resumed taking off at a running speed again. 47When asked about whether one of the girls had made it to the median strip, he said that his vision was locked on to the girl that got hit. 48Mr Dupas said that the three girls started out crossing the road by walking, but the plaintiff started running just after they stopped on the road. 49Mr Dupas agreed that he was concerned before they crossed the road that the girls would enter the roadway. He disagreed that the only vehicles stopped at the traffic lights at Jubilee Avenue were in the right-hand turn lane with their indicators on. Nor did he have a recollection of the girls being staggered over all three lanes of the road. He denied that the driver could have avoided a collision by swerving to miss the plaintiff. 50Prior to the commencement of the hearing, I gave leave pursuant to s 63 of the Evidence Act 1995 to the defendant to adduce the defendant's evidence by way of a statement made by her to the Police on the evening of the accident. The defendant was not available to give evidence for the reasons set out in a medical report from Dr Roy Abi-Hanna (exhibit 11). The defendant was undergoing a high-risk pregnancy and suffering from anxiety and depression. Given that the proceedings had commenced in 2008, and having regard to the matters set out in ss 56-58 of the Civil Procedure Act 2005, I granted leave, otherwise the hearing of this case would have had to have been delayed for a long and indefinite period of time. 51The defendant's statement (exhibit 14) reads relevantly: "Q: Can you tell me what happened? A: I was driving through the green light at Jubilee Avenue at the speed limit which is 70kph. I then saw these three girls running across the road in front of me. There was one girl in each lane and there was nothing I could do. I applied my brakes but couldn't turn away or try and avoid them otherwise I would have hit all of them. The front passenger side of my car collided with one of the girls. Q: What lane were you in? A: Middle one. Q: Were you wearing your seatbelt at the time? A: Yeah I wear my seatbelt every day. Q: Did you have anything alcoholic to drink prior to the collision? A: No. Q: How far down do you think past the lights at Jubilee Avenue? A: About 60 metres. Q: Are you injured in any way? A: No just shaken up. Q: Is there anything else you can tell me? A: No that was basically it. I just wish they had used the lights crossing." Legal Principles 52In Manley v Alexander (2005) 80 ALJR 413 the High Court said: "[11] ... Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger, and much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path. [12] It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events." 53The latter part of [12] has been described as a re-statement of the standard of care of a driver (see Vale v Eggins [2006] NSWCA 348 per Beasley JA (with whom McColl JA agreed) at [15]. However, that standard remains one of reasonable care and is dependent on the facts of the particular case - see Egan v Mangarelli [2013] NSWCA 413 per Tobias AJA (with whom Barrett and Ward JJA agreed) at [148] where his Honour said: "In my opinion the application of the general statement of principle at [11] of Manley is dependent on the facts of the particular case. What is required is 'reasonable attention' to what is happening on and near the roadway. Relevantly on the facts of Manley it required attention to what lay ahead of the defendant's vehicular path." 54The defendant relied on Ma v Keane [2003] NSWCA 50 which involved a pedestrian who was crossing the road and stopped just short of the centre line. She looked at the defendant's car approaching which was travelling at about 40kph. When that vehicle was 10 metres from her the pedestrian walked on and was struck by the vehicle. The trial judge found that there was no breach of the driver's duty of care. The driver drove in a normal manner at a slow speed and was at all times aware of the pedestrian. The trial Judge found that the defendant quite rightly continued to proceed at a slow pace and that once the plaintiff stepped from the centre of the road the driver could have done nothing more than what she did, namely, to brake and swerve a little. The Court of Appeal agreed. 55The plaintiff submitted that the driver could have done three things to avoid the collision, namely, sound her horn, move over to the left side of the road and/or slowed down to perhaps 10 or 15kph. Sheller JA (with whom Santow JA and Gazelle J agreed) referred to the following passage of the judgment of McHugh JA in Tame v New South Wales (2002) 76 ALJR 1348 at 1368. His Honour had emphasised the importance in considering the common law doctrine of negligence to take into account all reasonable conduct and said: "To repudiate it also ignores the right of citizens in a free society not to have their freedom of action and communication unreasonably burdened. Most motor vehicle accidents could be avoided if cars were driving at a speed less than 10kph. But to impose such a standard of care on drivers would unreasonably hamper the speed of travel, increase the congestion on the roads and burden the economy with unnecessary increases in the cost of transporting goods and persons." 56Sheller JA found that the critical determinating factor was there was nothing unusual observed by the driver about the behaviour of the plaintiff. She walked across the road and stopped in the centre and then looked at the defendant's car. On that basis it was a reasonable expectation by the defendant that the plaintiff had stopped to allow the vehicle to pass. His Honour said at [24]: "The case then falls into the category which was described by Priestley JA in Tsuji v Metromix Pty Limited (1998) 27 MVR 401 at 404 where a driver is suddenly confronted with a pedestrian whom the driver had no prior reason to think might suddenly step in front of the vehicle. His Honour remarked that in that category of case, depending on the precise facts, drivers are frequently found not to have been relevantly negligent." 57The defendant also relied on Dungan v Chan [2013] NSWCA 182 which involved the collision of a taxi with a pedestrian on a pedestrian crossing controlled at traffic lights. Emmett JA (with whom Ward and Gleeson JJA agreed) set out the following principles: "[15] A driver is entitled to assume that others will observe the rules of the road. However, that does not mean that a driver may proceed at any pace he or she chooses or with complete indifference as to the possibility of a pedestrian emerging from somewhere as a result of accident, miscalculation, ignorance or recklessness. As a general rule, a person is entitled to assume that others will act in a non-negligent manner. However, where negligence is the issue, the real question is whether, in all the circumstances, the person charged with negligence exercise the degree of care that those circumstances required. The standard of care expected of the reasonable person requires him or her to take account of the possibility of inadvertent and negligent conduct on the part of others; Wheare v Clarke (1937) 56 CLR 715 at 723. [16] The reasonable person would accept that it is not the duty of a driver to drive such that there is no foreseeable risk of injury to others. However, it does not follow that risks may be ignored. One must bear in mind the extent of the damage that may be done by a driver to a pedestrian, the degree of likelihood that a pedestrian will suddenly come into the path of an oncoming vehicle, the consequent extent of the precaution that a driver must take against that eventuality and the extent of what a driver is able to do when confronted with such a danger. The damage that a driver may do to a pedestrian is great and that is an important matter when deciding what a driver must do. The inconvenience of driving more slowly is to be measured against what may be done to a pedestrian if the driver's estimate of the risk is wrong. Pedestrians act carelessly with sufficient frequent that a prudent person would take account of the possibility. Careless behaviour by pedestrians occurs often enough for a prudent driver to foresee it and take it into account: Stocks v Baldwin (1996) MVR 416 at 418. [17] Drivers of motor vehicles, being in charge of frequently lethal machines, are under a duty to drive reasonably in the circumstances in which they find themselves. Such circumstances include the fact that a driver is driving lawfully by obeying green lights and travelling within the limit proscribed by the law. On the other hand, other circumstances may need to be taken into account as well: Tsuji v Metromix Pty Limited. Thus a motorist may have some reason, because of the surrounding circumstances, to be aware that pedestrians are likely to behave carelessly. A driver may be guilty of breach of duty if it is established that, although driving at a pace, and a place, that is lawful, the driver has nevertheless been put on notice, by conduct that the motorist saw or should have seen, that a pedestrian might act in such a way as to put that pedestrian in danger from the motorist: Albert v Nominal Defendant (1999) 29 MVR 107. A motorist must always be conscious of the fact that a pedestrian may do something silly and must adjust his or her driving to account for that possibility. On the other hand, a motorist can hardly drive in such a way that he or she expects such accidents to occur every minute. Otherwise, no traffic would ever move, unless through some reason for a motorist to look to the right or the left, it is not surprising that he or she may be looking straight ahead when driving his or her motor vehicle: Stojanoska v Fairfax (1999) 29 MVR 387. [18] Before there should be a finding of breach of duty, the evidence must disclose some factor which would cause a motorist to reduce his or her speed below the applicable speed limit, particularly if he or she is keeping a proper look out. If a motorist slows down and does not see any particular danger, but has a clear explanation for not seeing a pedestrian, there may be no breach of duty. The mere fact that there is a possibility that pedestrian being on the road would not of itself require a driver to slow down to a speed where he or she could stop in any conceivable circumstances. Such a finding would impose absolute or strict liability on drivers: Mobbs v Kaine (2009) 54 MVR 179." The Facts 58Each of the witnesses who gave evidence in the trial was doing their best to recollect an event that took place over 8 years beforehand which was traumatic in itself and had serious consequences for the plaintiff. There were numerous conflicts between the evidence of all witnesses. Further, the defendant did not give sworn evidence, but relied on a statement given to the Police on the night of the accident. The statement therefore needs to be treated with some caution, given that it was unsworn and untested by cross-examination, was made in circumstances where it was likely to be exculpatory of the defendant's conduct, and on its face, conflicts with other evidence, including that of independent witnesses relied on by the defendant in her case. 59That there are conflicts in the eyewitness testimony of the various witnesses to the incident is hardly surprising. There were a few notable examples here; for example, of the two independent witnesses relied on by the defendant, Mr Dawson gave evidence that he observed two of the young women on the median strip prior to the collision. Mr Dupas gave evidence that two of them stopped at the end of the first lane and moved back to the kerb, and thus there was no one on the median strip. Mr Dawson gave evidence that he observed the plaintiff to be holding the mobile phone in what he believed was her left ear. Mr Dupas made no observation of the plaintiff carrying a mobile phone. These are examples of inconsistencies in eye-witness testimony, however, they do not render the whole of the testimony of each witness unreliable, particularly having regard to the traumatic nature of the main incident, namely, the fact that the plaintiff was struck by a motor vehicle and suffered severe injuries as a result thereof. It is well recognised that the central aspects of witnessing stressful incidents are remembered very well, even though peripheral details might not be - see R v XY (2010) NSWCCA 181 per Whealy J (with whom Campbell JA and Simpson J agreed). 60Against that background and having regard to the whole of the evidence, I make the following findings of fact: (1)At approximately 8pm on 11 November 2005 the plaintiff left the St George Leagues Club with her two friends, Marina Naumceska and Natalie Mitrevski and walked through the car park to the Princes Highway. (2)The three young women were intending to cross the Princes Highway for the purpose of catching a bus to a fast food outlet. (3)The Princes Highway at Kogarah comprises six lanes, it runs in a generally north-south direction and in the middle is a concrete median strip. (4)The three women walked approximately 10 metres in a northerly direction and stopped on the eastern side of the Princes Highway for approximately 4-5 minutes. They were intending to cross from the eastern side of the highway to the western side. (5)They were at a point approximately 60 metres south of the southern most point of the intersection of the Princes Highway and Jubilee Avenue, an intersection controlled by traffic lights. (6)The plaintiff had had one alcoholic drink in the time that she had been at the Leagues Club, a period of one and half hours. (7)The three women stopped first on the footpath, and then moved across the nature strip to the kerb and gutter of the highway. (8)Before she crossed the road, the plaintiff intended to use her mobile phone to send her mother a text message to inform her of her plans. (9)Marina Naumceska informed the plaintiff and the other young woman that the bus they intended to catch was due shortly. She was familiar with the highway as she crossed the road every day, and set off at a brisk walk. (10)I find that Marina Naumceska reached the median strip and was standing on the median strip facing east across the northern-bound carriageways of the Princes Highway when the collision occurred. (11)The plaintiff looked both left and right before she commenced to cross. She observed vehicles stopped at the traffic lights at Jubilee Avenue to her right, waiting to turn right into Jubilee Avenue. (12)As the plaintiff commenced to cross the road, Natalie Mitrevski was on her right-hand side. (13)The defendant was stopped at the lights according to the evidence of Mr Dupas which I accept. At that time, the three girls were on the side of the highway, either on the footpath or in the gutter waiting to cross the road. They were at a distance from the defendant of more than 60 metres (60 metres plus the width of the intersection) and would have been visible to her. (14)When the lights changed, the defendant's vehicle set off at a normal speed. (15)As the plaintiff crossed the road, she was looking down while she crossed until she looked straight ahead to see Marina on the median strip. (16)I do not accept the evidence of Mr Dawson that she was on the telephone and that she had it raised to her left ear. I make no finding that the plaintiff was using her mobile phone, however, she was carrying it in one of her hands, down by her side. (17)I do not accept the submission made by counsel for the plaintiff that she did not see the vehicle because her view was obstructed by Natalie Mitrevski, who was to her righthand side. I find that she did not look after she left the side of the road, and was unaware of the presence of the vehicle on the roadway until she stepped into the third lane, and saw the vehicle "a split second" before it struck her. (18)At that point in time I find that Natalie Mitrevski had stopped in lane 2, having observed the vehicle approach. Marina Naumceska was, as outlined above, already on the median strip. (19)I find that the plaintiff and Ms Mitrevski were walking briskly across the road, consistent with them hurrying to keep up with Marina Naumceska and to ensure that they caught their bus. I do not find that they were "running" as Natalie Mitrevski observed the defendant's vehicle and stopped in lane 2 to allow it to pass. (20)I find that the defendant slowed her vehicle as she approached the three pedestrians on the roadway. By doing so she must have been aware of the risk of a collision with them by proceeding at that speed. (21)The plaintiff was struck on her right side just after she entered lane 3. She was struck by the front of the defendant's vehicle in line with the passenger side edge of the bonnet. (22)The defendant's vehicle at that time was travelling at a speed between 35-40 kph. Determination of Liability 61The plaintiff submitted that the defendant had time to react to any danger from the time that she first saw the pedestrians on the side of the road. Reasonable care required her to proceed more slowly than she did, and make sure that she was in a position to stop or otherwise avoid colliding with the pedestrians or one of them. There was no other traffic in the lanes surrounding her and she could have sounded her horn. Essentially, however, the defendant was travelling too quickly in the circumstances to avoid a collision. It was further submitted that the Court would not accept the version of facts set out in the defendant's statement, exhibit 14, as it was unsworn evidence, untested by cross-examination and somewhat exculpatory and therefore not reliable. 62The defendant, by her counsel, submitted that there was an insufficient trigger for hypervigilance on the part of the defendant here and there was nothing she could do to avoid the collision. Had she swerved, she would have hit either of the other two young women. It was therefore submitted that there had to be a real notification to the driver in terms of the pedestrian behaviour to alert the driver that she should modify her driving, and here there was no notification of such behaviour. 63Applying the legal principles set out above to the facts as I have found them, I find that the defendant had the opportunity to observe the three young women on the eastern side of the Princes Highway during the time they were situated first on the footpath and then in the gutter of lane 1 for approximately 4-5 minutes before they commenced to cross the road. As they moved from the footpath to the gutter, it must have been clear to the driver of any vehicle heading south from the intersection of Jubilee Avenue that they intended to cross the road at that point. Such observation should have been made by the defendant, and should have alerted her to the need for vigilance in those circumstances, lest she collide with one or more of them. 64As the defendant approached the point of impact, she had the opportunity to observe the three young women crossing three lanes of the highway from her left to her right. The first crossed in time to reach the safety of the median strip. That must have occurred after the lights had changed and the defendant had proceeded to travel south. Having observed the first young woman on the roadway, the defendant should have altered her course of travel and speed so as to be in a position to avoid the other two pedestrians on the roadway. 65The situation here was not one where the defendant was suddenly confronted with a pedestrian whom the defendant had no prior reason to think might suddenly step out in front of the vehicle, so as to fall within the category of cases such as Ma v Keane and Tsuji v Metromix Pty Limited, supra. Here, the defendant had the opportunity of observing three pedestrians come from the footpath onto the gutter of a major highway. Reasonable care required her to control the speed and direction of her vehicle in such a way as to avoid those pedestrians if they came within the vehicle's path. In fact, she did slow the vehicle, but not enough to stop in the event that one of the pedestrians walked in front of it. As outlined above, I do not accept the defendant's statement to the effect that she saw three girls running across the road in front of her and that there was one girl in each lane, meaning there was nothing that she could do. Nor do I accept her statement that she applied her brakes but could not turn away or try to avoid them, otherwise she would have hit all of them. Having had the ample opportunity to observe the three pedestrians beside the road and on the road, she should have reacted to those events by driving her vehicle in a manner and at a speed so as to be able to avoid colliding with the plaintiff. 66I therefore find that the defendant was driving at a speed which was excessive in the circumstances and in a manner that she was unable to avoid the plaintiff. She therefore breached her duty of care to the plaintiff. That breach was causative of the plaintiff's injuries. Contributory Negligence 67The plaintiff, by her counsel, conceded that there has to be a finding of contributory negligence and submitted that the majority of the culpability rested with the defendant driver, given that the pedestrians were clearly visible on the side of the road. The plaintiff advocated a finding of 20% contributory negligence. 68Counsel for the defendant submitted that contributory negligence in this case by the plaintiff was 100%. The defendant had abated the speed on her motor vehicle, she was keeping a proper lookout and she had no prior warning that the plaintiff would cross in front of her. She was entitled to assume that if she had observed the three women standing in the gutter that they were waiting for her vehicle to lawfully pass. The plaintiff embarked on crossing the road, which she could have done safely at the traffic lights, in a foolhardy manner and therefore she was wholly responsible for the collision and her injuries. 69In Turkmani v Visvalingam [2009] NSWCA 211 the Court of Appeal reviewed the authorities relating to a trial judge's assessment of contributory negligence. The Court referred to the well known passage in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529 where the High Court said: (23)"The making of an apportionment as between the plaintiff and the defendant of their respective shares in responsibility for the damage involves a comparison both of culpability, i.e. the degree of departure from the standard of care of the reasonable man (Pennington v Norris) and the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to a comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 70In Turkmani, the trial judge assessed the plaintiff, who had crossed at traffic lights against a "Don't walk" signal, as 60% contributorily negligent to his injuries. The Court of Appeal increased percentage to 80% on the basis that the pedestrian had broken the law by going against the "Don't walk" sign and had thereby intentionally giving rise to a situation where he and other road users were put at serious risk (per Hodgson JA at [55], McColl JA agreeing). 71That was not the case here. Rather, the plaintiff and her two companions were in full view of the defendant as she approached in her motor vehicle from the north. However, in my view, the plaintiff did contribute to her own injuries in a significant manner. There was a safe means of crossing the highway, which was a major thoroughfare, 60 metres further down the road. The plaintiff's own evidence was that she did not see the defendant's vehicle on the roadway until a split second before she was struck by it. I do not accept her evidence that she looked whilst crossing but did not see the defendant's vehicle. To merely follow her friend Marina across the road without looking out for her own safety was a contributing factor to her injuries. A further factor to be weighed is that Natalie Mitrevski was able to avoid a collision with the defendant's vehicle by stopping. I therefore find that the plaintiff should bear a large proportion of the responsibility for the accident and I find that she contributed, by her own negligence, to the extent of 40% contributory negligence. Damages 72The plaintiff was assessed by MAS as not qualifying for an award of damages for non-economic loss. The Court was informed that it was that assessment process which accounted for much of the delay for bringing the proceedings to trial. The plaintiff's damages were therefore confined to claims for past gratuitous care, future gratuitous care and paid care, past and future economic loss, treatment expenses and future treatment expenses. 73The treatment expenses were agreed between the parties in the sum of $36,828.99. The defendant seeks a credit for payments made pursuant to s 83 of MACA in the sum of $26,915.52. 74Notwithstanding that there is to be no award of damages for noneconomic loss, in order to determine an award of damages for each head of damages outlined above, it is necessary to assess the evidence of the injuries suffered by the plaintiff and their effect on her. The injuries she suffered are conveniently summarised by Dr de Burgh Norman as follows: * "A closed head injury with loss of consciousness for a short period (query 2 minutes). There was a period of post-traumatic amnesia. * A compound (open), complex and comminuted fracture of the mandible symphysis menti. * A closed fracture of the left mandible condyle [with overlapping of fragments] and condylar neck ... * Laceration beneath the chin and further mucoperiosteal wounding indicated the fracture compounded from both within and without. * A closed and undisplaced fracture (intra articular) of right lateral tibial plateau associated with haemoarthrosis. * A closed undisplaced fracture of the right fibular head and neck. * Abrasion lateral aspect of left foot ... * Closed injury to left thumb, associated with bruising and swelling. * An unspecified injury to the right little finger. * Unspecified injury to the left knee with a large lipohaemarthrosis. * Dental injuries including probable devitalisation of mandible incisors in the line of fracture and adjacent the line of fracture. It is not beyond the bounds of possibility that a concussive injury at the moment of impact caused pulpal damage to the maxillary incisor or canine teeth." 75On 12 November 2005 the plaintiff underwent an open reduction and internal fixation and interdental wiring of her mandible to secure the arch bars. The operation was described in the operation report as follows: * "Application of maxillary and mandible arch bars with interdental wiring * Exploration of fractures of the mandible para symphysis. Internal fixation achieved with two bone plates and screws. A butterfly segment of the mandible was noted. Following haemostarsis and further oral toilet and irrigation the wound was closed and appropriate post-operative instructions were enumerated. * The operation took three hours." 76Whilst in hospital the plaintiff was under the care of the plastics, trauma and orthopaedic teams. She commenced physiotherapy and was discharged from hospital on 17 November 2005. The Plaintiff's Evidence Relevant to Damages 77The plaintiff gave evidence that the arches were removed from her teeth on 3 February 2006 by Dr Sherring. She then came under the care of an orthodontist, Dr Vakirtzis, who reapplied braces. She was having difficulty eating hard foods such as meat, and was clenching her teeth when asleep. Her teeth were misaligned as a result of the fracture to her jaw. She also suffered headaches immediately following her discharge from hospital and she has continued to suffer headaches. She has ongoing pain in her mandible and also suffers tinnitus, more on the right side than the left. She came under the care of Dr Howson about that in 2009. Her tinnitus worsens when she is in loud areas and therefore she avoids crowds. 78The plaintiff has had extensive physiotherapy for ongoing problems with her jaw, her knee and lower back. 79The plaintiff's knee was in a brace and following her discharge from hospital, in a wheelchair, she went on to use crutches for mobilisation for a few months. 80The plaintiff had intended commencing a TAFE course in fashion design in 2006. She had commenced part-time work with Emoda Couture and had completed two Saturday shifts. She intended to continue working parttime with that business whilst she completed her three year TAFE course, and full-time during her vacation. 81The plaintiff commenced her TAFE course in 2007 and completed it on time in 2009. She obtained casual work two days per week with Johanna Johnston, Bridal Boutique in Paddington, where she worked as a sales assistant, but also as a seamstress. 82The plaintiff gave evidence that she had a lot of assistance from her mother with her TAFE course and the practical work involved. During the whole of her TAFE course she suffered from back pain and headaches. It was her intention to work full time once she completed her TAFE course and then to eventually open up her own bridal boutique. She enjoyed working for Johnanna Johnston, however, she suffered back pain and her headaches became worse, as a result of which she left that job in August 2010. At about the same time she consulted a psychologist to confront emotional issues which had affected her. 83In June 2010 she had become engaged to her husband, Nick Lazaru. They married in September 2011 and the plaintiff's first child, Miaa, was born on 15 October 2012. Her husband has a plumbing business and she assists part-time with secretarial and clerical work in that business. 84In 2011 the plaintiff had been referred to Dr Peter Whetton, psychiatrist, who prescribed anti-depressants for her. She was still taking Lexapro at the time of the hearing. She was also taking Propanol for her headaches. 85When asked how long it took for her to resume doing household chores, she gave the following evidence: "A: It took a long time. The first year, I was pretty much in physio three times a week, then in between seeing other doctors - so the first - 2006, was pretty much nothing. Mum was doing everything. And then 2007, I started TAFE, so its - by the time I would come home from TAFE, I'd be pretty tired. So it probably went on till about 2009. I mean, that's not to say I wouldn't help, you know, if mum was cooking, go and get, you know, the ingredients from the fridge or the cupboard or something, but yeah." 86Prior to the accident the plaintiff gave evidence that she had assisted her mother with much of the housework as her mother worked full time. She estimated the time that she used to contribute to household domestic chores as being at least 3 hours per day. Following her accident, her mother stopped work, and she had been doing all of the housework since. 87Following their marriage in September 2011, the plaintiff and her husband lived for a time with her parents. They subsequently moved into their own home, and since then, the plaintiff gave evidence that her husband assists by doing the household chores, including washing, cooking and the cleaning at least 8-10 hours on average per week. Her mother also assisted once or twice a week for several hours. Since December 2013 she had paid cleaners $90 a fortnight to clean the home. 88In cross-examination the plaintiff gave evidence that the anti-depressant medication had assisted her depression. She gave evidence that she required assistance in doing the practical work during her TAFE course. 89The plaintiff was also cross-examined about a Facebook page for a business Miaa Couture which she had commenced as a TAFE project. Another area explored was an on-line business known as "Forever Love Miaah Soy Candles", a business which the plaintiff stated was her mother's business which her mother had tried to involve her in to assist her overcoming her injuries. In fact she did not participate by making any candles. Her mother, Maria Kamateros, was not challenged on this when she gave evidence. 90During her employment with Johanna Johnston in 2009 and 2010, the plaintiff increased her part-time work from two days to three days and sometimes four day a week. She was still having physiotherapy which gave her temporary relief from her back pain and jaw pain. She also did exercises. 91When asked whether she was going back into the workforce, the plaintiff said that she was just helping her husband as much as she could and caring for her child. She started work in her husband's business in 2013 doing office work and chasing up accounts. She was paid $750 as an income splitting arrangement which paid their mortgage, however, she gave evidence that she would not be paid $750 if she was working for someone else. She gave evidence that she had not thought of designing dresses for a very long time. She had tried her very best to recover from her injuries but she was still suffering from a lot of back pain and a lot of headaches. 92In re-examination the plaintiff confirmed that whilst she had been working part-time for Emoda Couture prior to the accident, she was about to commence full time employment with that business before her TAFE course commenced in 2006. She expected to be paid $350 a week. A letter confirming her part-time employment at Emoda Couture was tendered as exhibit 9. 93Mr Kamateros gave evidence that his daughter could not cope with her job and continued to complain of pain in her back, headaches and tinnitus. 94The plaintiff's husband also gave evidence of the effect that working had on the plaintiff. She was, however, depressed when she left that job. Mr Lazaru also gave evidence about the plaintiff's participation in the plumbing business which he conducted in partnership with his brother. He corroborated her problems with her jaw and inability to carry out domestic duties. She was unable to do any kind of heavy lifting and relied on her mother and cleaners who were paid to clean the house. In crossexamination Mr Lazaru gave evidence that the plaintiff had at no stage indicated that she might go back into a shop selling bridal wear. 95The plaintiff's mother, Mrs Maria Kamateros, gave evidence that it was over a year before the plaintiff was able to start to assist in domestic chores, including cooking, cleaning and washing. The plaintiff found her TAFE course difficult and her mother helped her do much of the practical work so that she could finish the course. She had trouble working in 2010 because of pain and headaches. 96Following the accident, Mrs Kamateros stopped work to look after her daughter. For at least six months to a year, she did everything for her including showering her, taking her to the bathroom, cooking and cleaning and taking her to medical appointments. She estimated that she spent 20 hours per week doing the tasks that the plaintiff did before the accident. 97Mrs Kamateros gave evidence that since the plaintiff had moved into her own place, she still assisted her by cleaning for 10 hours per week. 98Mrs Kamateros was cross-examined on the history given by the plaintiff in her presence when interviewed by an occupational therapist qualified by the defendant on 24 February 2009. 99Mrs Kamateros gave evidence the plaintiff had slept with her for the first six to eight months following the accident because she had nightmares. Prior to the accident they had been living at the plaintiff's grandmother's house whilst the family home was renovated. The plaintiff's grandmother would cook dinner but Mrs Kamateros would do everything else by way of domestic chores. It took the plaintiff many years after the accident to get back to doing domestic chores. The Medical Evidence 100Both the plaintiff and defendant tendered a large bundle of medical evidence in support of their respective cases. No doctor was called for cross-examination so as to challenge any opinion expressed by them. Notwithstanding that the plaintiff did not qualify for an award of damages for non-economic loss, it is clear from the hospital records, and reports of her treating specialists (Dr D Sherring, Dr J Vakirtzis, Dr M Dineen, Dr Cordato, Mr Curtis, Dr P Whetton and her GP Dr Ma) that the plaintiff suffered a number of severe and frank injuries from which she continued to suffer ongoing disabilities. They were principally ongoing pain and dysfunction in her jaw, headaches and lower back pain. The plaintiff had also suffered a reactive depression which had been characterised as a major depression and post-traumatic stress disorder. She was still taking anti-depressant medication. 101The defendant relied on a large volume of medical reports, a great deal of which comprised reports from medical assessors on the question of whether the degree of permanent impairment suffered by the plaintiff as a result of injuries caused by the motor vehicle accident was greater than 10%, for the purpose of the Medical Assessment Service. The authors of those reports were not compellable and other than elucidating the injuries and their sequelae, the reports were not relevant to the issues on damages to be determined by me. There was no real issue as to the frank injuries suffered by the plaintiff. The real issues were the effect of those injuries on her ability to carry out domestic activities, and whether, as a result of those injuries, she had suffered a diminution of her earning capacity. 102As to the first issue, the defendant relied heavily on the report of Ms Amanda McLaughlin, occupational therapist, who assessed the plaintiff on 24 February 2009. In respect of her psychological reaction, the defendant relied on the report of Dr Lee dated 7 June 2010 in which he said that he could not reject "the possibility of abnormal illness behaviour" to a significant degree. Mr D Cipriani, psychologist, in a report dated 14 December 2010 adopted that opinion. Despite concluding that the plaintiff had developed Acute Stress Disorder and "some ongoing post-traumatic stress symptoms which have largely resolved", he expressed the opinion that she was grossly exaggerating her complaints in the pain, disability, cognitive, emotional and personality domains in order to enhance her claim. He was of the opinion that the plaintiff was fit for work in sales and service positions and in the fashion industry, and that her prognosis is excellent. In a subsequent report dated 26 March 2012, Mr Cipriani maintained that opinion stating that the plaintiff's reasons for ceasing work at Johanna Johnston Bridal Design in September 2010 "lacked credibility". 103I do not accept those opinions. The plaintiff was a credible witness who gave her evidence candidly. She was the product of a somewhat protective family who have responded appropriately to care for her needs, having regard to the severity of the injuries that she suffered, and the setbacks that they represented to her at a rather critical time of her formative years. I accept that the plaintiff contributed to the family household prior to her accident as both her parents were working in the family business. Further, I accept that her mother stopped work immediately to care for her daughter and did so on an almost full time basis for the year following the accident. Thereafter she continued to assist her by attending to the domestic chores that her daughter would otherwise, but for the injuries, have carried out, and also lent her assistance in a practical sense by helping her with the work required for her to complete her TAFE course. I do not accept the opinion of Ms McLaughlin, occupational therapist, relied on by the defendant, that the plaintiff required assistance for only 14 weeks post injury for a period of hours per week, and thereafter for a period of 12 weeks at 2 hours. It does not accurately reflect the severity of the plaintiff's injuries and their effect on her, as borne out by her evidence and the opinions of her treating doctors referred to above. Assessment of Damages - Past Economic Loss 104I accept that the plaintiff's TAFE course was postponed by one year, and that she had demonstrated limited earning capacity prior to the accident. However, she was embarking on a career in the fashion industry and had obtained part-time employment with Emoda Couture and was to gain further experience with that business prior to and during her TAFE course. I accept that the plaintiff had developed a passion for her ambition to work in the fashion industry, and would ultimately have qualified by way of a TAFE course, then worked in that industry and worked towards having her own business. In that she would have been supported by her parents who ran their own family business. This approach is consistent with the Court of Appeal's judgment in State of New South Wales v Moss (2000) 54 NSWLR 536 per Heydon JA at 558. In calculating damages for the past, the Court must also have regard to the fact that the plaintiff married in 2011 and her first child was born in 2012. 105The income splitting arrangement between the plaintiff and her husband is not determinative of the assessment of her diminished earning capacity - see Husher v Husher (1999) 197 CLR 138. I find that the arrangement by which she is paid $750 per week to enable them to make mortgage payments does not reflect her true earning capacity on the open market for labour. In any event, she only started that work in 2013, after her baby had been born. For the past, I therefore award the plaintiff as follows: 2006 - Loss of earning at $350 net per week = $18,200.00 2007 - 2009 - Loss of part-time earnings during TAFE course, allowing for full time work during vacations @ $10,000 net per annum $30,000.00 Period of employment by Johanna Johnston Nil September 2010 to March 2014 - cushion $17,500.00 Total $65,700.00 Future Economic Loss 106The test for determining whether the plaintiff is entitled to damages for diminution of her earning capacity into the future is whether those injuries are or may be productive of financial loss - see Medlin v State Government Insurance Commission (1995) 182 CLR 1. 107I do not accept the defendant's submission that the plaintiff has not pursued her ambition to work in the fashion industry and has put aside such ambition as a result of marrying her husband. The submission has no jurisprudential basis and ignores the reality of most working couples in our community. Further, the Courts have long recognised this type of submission to be discriminatory - see Burden v Rath (1986) Aust Tort Reports 80-050, which was applied in Harper v Bangalow Motors Pty Limited [1990] NSWCA 85 per Kirby P. Ultimately, the defendant submitted however, that the plaintiff was entitled to an award by way of a buffer for both past and future diminution of earning capacity. 108Before an award of damages for future economic loss may be made, the Court must be satisfied that the assumptions about future earning capacity or other events on which the award is to be based accord with the plaintiff's most likely future circumstances but for the injury - see s 126(1) MACA. In this case, such an award is based on the following assumptions about her future earning capacity, but for the injury: (1)The plaintiff would have commenced her TAFE course in 2006 and completed it in 2008. (2)During that course she would have continued to work for Emoda Couture, or other fashion industry outlets, part-time during her course and full time during vacation periods. (3)By the time she had completed her TAFE course the plaintiff would have been experienced in retail selling and well placed to obtain employment in that industry. That she obtained employment towards the end of her time at TAFE with Johanna Johnston merely confirmed that assumption. (4)The plaintiff, but for her injuries, would have continued working for Johanna Johnston or some other retail outlet, gaining experience beyond her qualifications in all aspects of the fashion industry. (5)The plaintiff would have taken time out from her employment from time to time for the purpose of having children, but would have otherwise worked in the fashion industry, particularly after her children reached school age. (6)The plaintiff would have had the opportunity to operate her own business in the fashion industry had she so decided at some stage in the future. 109The Court is required by s 126(2) of MACA 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". Such an adjustment may be nil. This is a case where arithmetic calculation of the plaintiff's loss is not possible and therefore the correct approach is to award a lump sum of buffer for her loss. In doing so, there is no deduction required by way of an adjustment for the percentage possibility that the events concerned might have occurred but for the injury - see Allianz Australia Insurance Limited v Kerr [2012] NSWCA 13, as explained in Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244 per Basten JA (with whom McColl and Macfarlan JJA agreed) at [40] - [48]. See also Penrith City Council v Parks [2004] NSWCA 201 and Nominal Defendant v Lane [2004] NSWCA 405. Having regard to those principles, I assess the plaintiff's diminution of earning capacity into the future by way of a buffer in the sum of $125,000.00. 110I assess the plaintiff's loss of superannuation benefits payable on both past and future diminution of earning capacity in the sum of $17,500.00. Past Care 111In respect of past care, I accept that the plaintiff was totally dependent on her mother for a period of 12 months following the accident, and that, given the severity of her injuries and the disabilities she suffered from, she is entitled to the maximum of 40 hours gratuitous care per week. Thereafter, it is reasonable to award the plaintiff 8 hours gratuitous care per week. Damages are therefore calculated as follows: 50 weeks x 40 hours x $22 = $45,760.00 7.4 years x 8 hours x $24 = $72,420.00 Paid cleaning assistance 3 months @ $45 per week = $540.00 Total $118,720.00 Future Domestic Assistance and Paid Care 112The plaintiff has claimed 8 hours gratuitous care per week for the rest of her life, together with $45 per week paid care for cleaning for the rest of her life. This is not, in my view, an appropriate case for an award for the rest of her life. I accept, however, that the plaintiff continues to have ongoing problems with low back pain and headaches which interfere with her capacity to carry out heavier household duties. I propose to allow her claim of 8 hours per week for gratuitous care into the future for a period of 5 years only and to add to that, an amount for paid care in the sum of $45.00 per week for 5 years. Applying the 5% multiplier to both amounts, the calculation is as follows: 8 hours x $26 x 231.5 = $48,152.00 $45 x 231.5 = $10,417.50 Total $58,569.50 Future Treatment Expenses 113The plaintiff is having ongoing physiotherapy treatment for her low back pain and her jaw. She will require medical supervision by way of her general practitioner, her psychiatrist and occasional specialist review by an orthopaedic specialist. She also requires ongoing dental treatment for her mal-aligned teeth and splints, together with the removal of hardware from her mandible in due course. 114I am not persuaded that the plaintiff will undergo three separate surgical procedures on her knee, however, I have allowed for one arthroscopic debridement/chondroplasty as recommended by Dr Deveridge. I therefore allow the plaintiff's various claims for future treatment as follows: Supervision by GP four times per year ($6 per week), physiotherapy once per fortnight ($35 per week) and medication (at $10 per week) for ten years. $21,058.00 $51 x 412.9 = Psychiatric treatment and counselling $4,650.00 Future surgery to knee, including hospitalisation and rehabilitation services $10,000.00 Future dental treatment including splints and removal of hardware $6,500.00 Total Future Treatment $42,208.00 115To the above amount should be added the agreed treatment expenses in the sum of $36,828.99. Summary - Award of Damages 116I therefore award the plaintiff the following damages: Past Economic Loss $65,700.00 Future Economic Loss $125,000.00 Loss of Superannuation Benefits $17,500.00 Past Gratuitous Care $118,720.00 Future Domestic Assistance and Paid Care $58,570.00 Future Treatment Expenses $42,208.00 Past Treatment Expenses $36,829.00 Total $464,527.00 I have rounded the total damages out to $464,500.00. Deduction for Plaintiff's Own Contributory Negligence 117From the above total must be deducted the sum of $185,800.00 being 40% of the total damages representing the plaintiff's contributory negligence. There will there be a judgment for the plaintiff in the sum of $278,700.00, subject to a credit for the s 83 expenses. 118I note that the defendant has sought a credit in the sum of $26,915.52 in respect of treatment expenses it has paid pursuant to s 83 of MACA. Notwithstanding the reduction of the damages for the plaintiff's contributory negligence, the insurer is entitled to a credit for all of its payments - see Golden Eagle International Trading Pty Ltd & Anor v Zhang and Anor (2007) 229 CLR 498. Orders 119I make the following orders: (1)There will be a verdict and judgment in favour of the plaintiff in the sum of $251,785.00. (2)The defendant is to pay the plaintiff's costs of the proceedings unless a special costs order is applied for within 28 days. (3)The exhibits are to be returned forthwith. (4)Grant the parties liberty to apply in respect of any special costs orders sought within 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: 07 March 2014