Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gordon v Truong; Truong v Gordon [2014] NSWCA 97 Hearing dates: 24 February 2014 Decision date: 04 April 2014 Before: Basten JA at [1]; Macfarlan JA at [40]; Simpson J at [54] Decision: (1) Allow the appeal and cross-appeal. (2) Set aside the judgment and order as to the costs of the trial, made in the District Court on 7 December 2012. (3) In place of the judgment of the District Court, order that the defendant pay to the plaintiff damages in an amount of $265,934, such judgment to take effect from 7 December 2012. (4) Make no order as to the costs of the proceedings in this Court. (5) In the absence of agreement, the parties have leave to file and serve within 14 days of the date of this judgment a notice of motion with submissions not exceeding three pages (together with any offers of compromise relied upon) as to: (a) the calculation of the judgment in order (3) above; (b) any variation of order (4); and (c) the orders sought with respect to costs in the District Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: DAMAGES - motor vehicle accident - damages for commercial domestic assistance - gratuitous domestic assistance currently provided - whether gratuitous domestic assistance would continue - Motor Accidents Compensation Act 1999 (NSW), ss 128, 141B TORTS - negligence - contributory negligence - motor vehicle accident - whether error in finding no contributory negligence by pedestrian - failure of plaintiff to use a pedestrian crossing - failure to keep a proper lookout - Motor Accidents Compensation Act 1999 (NSW), s 138 Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5R, Divs 2, 8 of Pt 1A Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9 Motor Accidents Compensation Act 1999 (NSW), ss 125, 126, 128, 138, 141B Supreme Court Act 1970 (NSW), s 75A Cases Cited: Anikin v Sierra [2004] HCA 64; 79 ALJR 452 Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Miller v Galderisi [2009] NSWCA 353 Pennington v Norris [1956] HCA 26; 96 CLR 10 Richards v Gray [2013] NSWCA 402 Smith v McFarland [2013] NSWCA 378 Smith v Zhang [2012] NSWCA 142; 60 MVR 525 Water Board v Moustakas [1988] HCA 12; 180 CLR 491 Watt v Bretag (1982) 56 ALJR 760 Texts Cited: Review of the Law of Negligence: Final Report (September 2002), pars 8.7, 8.11 Category: Principal judgment Parties: Jarryd Adam Gordon (Appellant/Cross-Respondent) Kim Hung Truong (Respondent/Cross-Appellant) Representation: K P Rewell SC/M A Cleary (Appellant/Cross-Respondent) P Semmler QC/C Thompson (Respondent/Cross-Appellant) Curwoods Lawyers (Appellant/Cross-Respondent) Carroll & O'Dea (Respondent/Cross-Appellant) File Number(s): 2012/395470 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-12-07 00:00:00 Before: Phegan ADCJ File Number(s): 2011/213377 HEADNOTE [This headnote is not to be read as part of the judgment] On 8 July 2008, Mr Kim Hung Truong (the plaintiff) was attempting to cross Regent Street, Chippendale, which consisted of five traffic lanes and no marked safety refuge in the centre. The plaintiff was not crossing at a pedestrian crossing or an area controlled by lights; there was a dispute as to whether the plaintiff failed to keep a proper lookout when crossing. When the plaintiff had reached the third traffic lane, a vehicle being driven by Mr Jarryd Adam Gordon (the appellant) had already entered Regent Street. Seeing the appellant's vehicle, the plaintiff prevaricated, moving forward and then back. The appellant's vehicle struck the plaintiff. At trial, the appellant conceded liability for the accident. The dispute on appeal turned on whether the plaintiff was contributorily negligent and the refusal of one head of damages. The trial judge held there was no contributory negligence and that no award for future commercial domestic assistance should be made on the basis that gratuitous domestic assistance was being provided at a level which was not compensable. The appellant challenged the finding that there was no contributory negligence while the plaintiff, by a cross-appeal, challenged the failure of the trial judge to award damages for future commercial domestic assistance. The issues for determination on appeal were: (i) whether the trial judge erred in failing to find that the plaintiff was contributorily negligent; (ii) whether the trial judge erred in failing to make an award for future commercial domestic assistance. The Court held, allowing both the appeal and cross-appeal: In relation to (i) (per Basten and Macfarlan JJA) 1. The plaintiff's evidence was that when he stepped onto the road he was checking right and left as he was crossing. The primary judge needed to weigh the plaintiff's evidence against the circumstances relating to the accident. The size of the lanes, the walking speed of the plaintiff and the driving speed of the car would suggest that the appellant's vehicle should have been visible to the plaintiff the moment he crossed the road. The probabilities are therefore that if the plaintiff had kept a proper look, he would not have proceeded and the accident would have been avoided: [7]-[10], [46] 2. The appellant's concession as to liability was not based on any particular ground, but it is clear that he failed to keep a proper lookout. Responsibility should be apportioned 65% to the appellant and 35% to the plaintiff: [36], [49] (per Basten JA) 3. The assessment of contributory negligence is to be conducted in accordance with s 138 of the Motor Accidents Compensation Act 1999 (NSW). Section 5R of the Civil Liability Act 2002 (NSW) provides the applicable standard of contributory negligence for s 138. The purpose of s 5R is to impose the same standard of care on both plaintiffs and defendants: [15]-[17] (per Basten JA) 4. A pedestrian crossing a major thoroughfare (with five lanes of traffic) other than at a place marked for pedestrian crossing or controlled by lights (or both), should adopt a heightened level of attention to traffic: [12] (per Macfarlan JA) 5. The primary judge did not err in rejecting the appellant's contention that the plaintiff was contributorily negligent in failing to use a pedestrian crossing and in acting as he did upon seeing the appellant's vehicle: [41]. (per Simpson J dissenting) 6. There was no evidence that the plaintiff was aware of any pedestrian crossing and there was nothing to indicate that he ought to have been aware. The suggested inference that the plaintiff failed to keep a proper lookout cannot stand in the face of explicit evidence that he maintained a vigil to his right. The plaintiff's conduct on the road was an attempt to avoid the collision and did not denote a failure on the part of the plaintiff to take care of his own safety. There is no basis for a finding of contributory negligence: [102], [107], [113]-[115] In relation to (ii) (per Simpson J, Macfarlan JA agreeing) 7. The primary judge erred in largely rejecting the plaintiff's claim for damages in respect of future domestic assistance. The unstated assumption of fact by the judge in declining the award was that the gratuitous assistance provided to the plaintiff would continue to be provided, as it had been in the past. An inference could be drawn in the present case that the plaintiff's children and his wife would eventually cease to provide gratuitous domestic assistance. The plaintiff is entitled to an award of domestic assistance at commercial rates: [51], [124]-[128], [134] Miller v Galderisi [2009] NSWCA 353 distinguished. (per Basten JA dissenting) 8. The plaintiff has not established an entitlement to an award calculated on a commercial basis for domestic assistance. Where domestic assistance is being provided gratuitously and there is an absence of evidence that such assistance would cease either immediately, or at some time in the future, it would be inconsistent with principle to make an award for commercial domestic assistance to commence immediately: [30] Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; Miller v Galderisi [2009] NSWCA 353 applied. Richards v Gray [2013] NSWCA 402 referred to. Judgment 1BASTEN JA: On 8 July 2008, the respondent, Mr Kim Hung Truong, was struck by a car whilst crossing Regent Street, Chippendale, on foot. It is convenient to refer to Mr Truong as "the plaintiff". 2The appellant, Jarryd Adam Gordon, was the driver of the vehicle which struck the plaintiff. By the time of the trial in the District Court, the appellant had conceded liability. The dispute turned on a defence of contributory negligence and the proper assessment of damages. The trial judge (Phegan ADCJ) found that there was no contributory negligence on the part of the plaintiff. In assessing damages he declined to award any amount for future domestic assistance. The first of these findings is challenged on the appeal; the latter by way of cross-appeal lodged by the plaintiff. Brief factual background 3The circumstances of the accident have been identified by Simpson J and it is sufficient to refer only to specific features which are presently relevant. The description may be assisted by reference to a map (Attachment A) and an aerial photograph (Attachment B), annexed to this judgment. 4On the morning in question, the plaintiff wished to visit the Registry of Births, Deaths and Marriages, which he understood (correctly) to be on the west side of Regent Street, although he was not aware of the precise location. He came by car, approaching Regent Street from the north. That involved driving down Lee Street (in a southerly direction) with Central Station and then railway lines on his left. Lee Street merges with Regent Street at a Y intersection, Regent Street coming in from the right as one heads south. At that intersection, Regent Street had three lanes heading south but widened after approximately 50 metres to incorporate a fourth lane in which cars could park. 5The plaintiff parked, got out of his car, and commenced to cross Regent Street in a westerly direction (away from the railway lines). He was required to cross three lanes of traffic before reaching the relative safety of a narrow median strip formed by parallel unbroken double lines. When the appellant's vehicle struck him, according to the findings of the trial judge, he was in "lane 3" which is the middle of the three traffic lanes: judgment, p 3. 6The plaintiff's case was that when hit he was some 70 metres south of the intersection of Regent Street and Lee Street. Prior to commencing to cross Regent Street, he had looked to his right (being the direction of potential oncoming traffic) and had seen no vehicles approaching. From the outside of the parking lane, he must have crossed at most two lanes when he saw the appellant's vehicle close to him, prevaricated and was struck. His prevarication apparently involved moving forward and then back. The appellant also prevaricated, but changed direction to the same effect as the plaintiff. 7The evidence accepted by the primary judge was that the appellant's vehicle was travelling at between 40 km/h and 50 km/h as it approached the plaintiff. The appellant was driving a van along Regent Street and had stopped at the lights at the Lee Street intersection before turning south into the continuation of Regent Street. Counsel for the respondent referred to the van as "a 2003 Mercedes Sprinter". The implication (which could not be expressly relied upon because there was no evidence to support it) was that the vehicle was capable of picking up speed quickly from a standing start. On any view, however, and accepting that the vehicle never reached a speed greater than 50 km/h (being the speed limit in the area) his average speed can have been no greater than 40 km/h. 8The trial judge noted the expert evidence that at 40 km/h the vehicle would cover approximately 11 metres per second ("m/s") and at 50 km/h, 14 m/s. The trial judge then concluded that the appellant "would have taken approximately five to six seconds from a standing start to reach where the plaintiff and defendant first saw each other": judgment, p 5. Although described as being from a standing start, the distance of 70 metres does not appear to have been calculated by reference to the stop lights in Regent Street (the distance would have been somewhat greater in all probability) and if taken from a standing start, the average speed must have been below 50 km/h. However, the calculation may be accepted on the basis that it would have been roughly accurate once the van had commenced its right hand turn into Regent Street, at which point the plaintiff should have been visible to the driver, and the van to the plaintiff. 9The expert evidence of Mr Grant Johnston was that the width of the lanes southbound on Regent Street was variable and therefore difficult to calculate without knowing the precise point of the collision. He measured the lanes as between 3.2 and 3.5 metres in the general area where the collision was believed to have taken place. On the assumption that the plaintiff, getting out his car, commenced to walk from the outside of the parking lane, he would have had approximately seven metres to cross to reach the beginning of the third traffic lane (lane 4), being the lane closest to the median strip. Mr Johnston adopted the mid-range walking speed assigned to males of the plaintiff's age, namely 1.5 m/s. On that basis, he would have crossed two lanes in approximately 4.5 seconds. If he had hurried, he would presumably have crossed three lanes comfortably before the van reached him. Even if the van took six seconds to reach him, and he had not hurried, he would have been close to the median strip, assuming that the van itself was in the lane closest to the median strip when it came around the bend into Regent Street, assuming further that it did not slow down on approaching him and assuming that it did not deviate (as in fact it did) into the middle traffic lane. 10There are two probable inferences available on these calculations: one is that the van should have been visible to the plaintiff from the moment he started to cross the road. The second is that, as he did not see the van he cannot have been keeping a proper lookout. Accordingly, on the findings of fact accepted by the trial judge, there was a significant level of contributory negligence on the part of the plaintiff. 11There were two additional elements of carelessness. First, the plaintiff gave evidence that he thought it was safe to walk because, prior to setting off, he had looked to the north and seen a red light. There is no reason to suppose that he could possibly have seen the traffic lights controlling southbound traffic which might approach him, whether it were coming from the direct extension of Regent Street to the north (Lee Street) or the other branch of the Y, being Regent Street heading north-west. The only traffic lights he could have seen would have been those facing south down Regent Street; if they were red, it was to stop traffic heading north across the Lee Street/Regent Street intersection, which was likely to be to allow traffic to come out of Regent Street, southbound (or possibly if a right turn were permissible, from Lee Street into Regent Street) but, on either view, to allow traffic to come south along Regent Street towards the plaintiff. 12Secondly, a pedestrian crossing a major thoroughfare (with five lanes of traffic) otherwise than at a place marked for pedestrian crossing or controlled by lights (or both), and with no marked safety refuge in the centre, should adopt a heightened level of attention to the traffic. Indeed, attention should be directed virtually continuously to the direction from which traffic may come. The plaintiff's conduct should be judged against such a standard. Relevant principles 13The assessment of contributory negligence is to be conducted in accordance with the requirements of s 138 of the Motor Accidents Compensation Act 1999 (NSW). This provision, relevantly, adopts two principles. The first is that "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": s 138(3). That language reflects the standard applied by the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1). 14Secondly, the Motor Accidents Compensation Act requires that the "common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section": s 138(1). The reference to the common law may be put to one side: apportionment of liability on account of contributory negligence is a creature of statute in this jurisdiction. Importantly, however, the "enacted law as to contributory negligence" picks up Divs 2 and 8 of Pt 1A of the Civil Liability Act 2002 (NSW) which expressly apply to motor accidents: s 3B(2)(a). Division 8 includes s 5R which is in the following terms: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 15The principles applicable in determining whether a person has been negligent include the "General principles" set out in s 5B. Applying these principles as required by the statute is not without its difficulties. Where the plaintiff and defendant are both drivers in control of similar vehicles, questions of negligence and contributory negligence can readily be assessed according to the same broad standards. However, where the plaintiff is a pedestrian and the defendant a driver of a vehicle, the negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is, generally, to be assessed against a risk of harm to him- or herself. (It is possible that the carelessness of a pedestrian may create a risk of harm to other drivers, for example, if a car is forced to swerve to avoid a pedestrian, but that is not this case.) The harm which the motor vehicle is likely to cause to the pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind. 16The purpose of s 5R may be gleaned from the recommendations in the Review of the Law of Negligence: Final Report (September 2002) which are, in this case, reflected in the statute. At par 8.7, the Report stated: "Should the law allow people to take less care for their own safety than it requires others to take for their safety? ... Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?" 17The Report then stated at par 8.11: "Leading text book writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same. There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendants. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel's view, this approach should not be supported." 18The penultimate sentence was supported by reference to three judgments in the High Court and two in the South Australian Supreme Court. The comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760 at 762-763, are in point. Referring to the South Australian equivalent of the 1965 Act, s 9(1)(b), Murphy J stated: "The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision. ... For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision." 19The application of the principles in the present case is complicated by the fact that, the appellant having admitted liability, there was no proper consideration of the nature of his breach of duty. Counsel for the plaintiff submitted that such a consideration was unnecessary given the concession: however, that is not correct. If a defence of contributory negligence requires an apportionment of liability based upon the responsibility of each for the accident, the comparative exercise cannot be adequately carried out unless the degree of responsibility of the driver is assessed. On the other hand, what the plaintiff could fairly submit was that because the proof of contributory negligence lay with the driver, who had an interest diminishing the degree of his responsibility, to the extent that he did not undertake that task, he could not be heard to complain if the assessment of contributory negligence was less than it should have been. 20Apart from the mistake in relation to the traffic lights, the responsibilities of each for the accident fell within a similar range. Thus, each should have seen the other in ample time to take evasive action. It might have been arguable that the negligence of the plaintiff was greater because it should have been easier to see a large van approaching than for the driver to see a pedestrian against a background of parked cars. On the other hand, the driver's evidence did not allow much room for leniency: the proper inference was that he was simply not looking. 21In terms of possible responses, the culpability of the driver was probably greater. If he had seen the plaintiff in reasonable time, he could either have slowed down or changed lanes so as to leave ample room to avoid the plaintiff. The options open to a pedestrian may be more limited. 22Taking these factors into account, I agree with Macfarlan JA that an appropriate allowance for contributory negligence is 35%. Domestic assistance 23The cross-appeal challenges the refusal of the trial judge to award an amount on account of "attendant care services" to be calculated at commercial rates. 24It is not in dispute that the findings of fact precluded an award on the basis of gratuitous domestic assistance, the test in s 128 of the Motor Accidents Compensation Act not being satisfied. (Section 128 was renumbered as s 141B in 2012.) The question was whether the plaintiff established an entitlement to an award calculated on a commercial basis, as to which there is no requirement that services be provided for any specified number of hours per week, or over any particular period. 25Awarding damages for this head of loss is anomalous. The imposition of limits on an award for gratuitous care services requires an assessment of how the plaintiff will cater for his accident-caused disabilities in the future, a matter which is usually irrelevant. As explained in Richards v Gray [2013] NSWCA 402 at [110] (Bathurst CJ), and at [176]-[177], damages are generally awarded for a lost capacity to earn, or the needs resulting from a disability created by the accident. In the case of care services, where governed by statute, the plaintiff must not only establish a need but establish that he or she has or will purchase services from a commercial provider. This case is only concerned with the future. He had to establish that, in the future, he would obtain services on a commercial basis for the accepted level of accident-caused need. The assistance which the trial judge found was required amounted to between two and four hours per week. 26The future possibility, namely that the plaintiff will obtain domestic assistance on a commercial basis, does not involve a finding on the balance of probabilities, but an exercise in prediction, in accordance with the principles established by Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638. As Deane, Gaudron and McHugh JJ stated at 643, "the court assesses the degree of probability that an event ... might occur, and adjusts its award of damages to reflect the degree of probability." It is arguable that this exercise has been varied by provisions such as s 126 of the Motor Accidents Compensation Act. It is also arguable that a claim for commercial domestic assistance is a form of "future economic loss" within the meaning of that provision (although it does not fall within the terms of s 125). This point may be put aside for present purposes, as it was addressed by neither party. On the other hand, the standard allowance for vicissitudes is an application of the principle articulated in Malec with respect to future and hypothetical possibilities. 27The evidence in support of the plaintiff's case could have come only from the plaintiff and his wife, Ms Pham. With respect to this evidence, the appellant stated in written submissions: "19. Nowhere in his evidence does the [plaintiff] state that: (i) his wife (or children) are not prepared to continue to provide these few hours of domestic assistance in the future; or (ii) his wife is, or for any reason may become, unable or unwilling to provide that small amount of assistance." 28Further, the appellant submitted, that nowhere in Ms Pham's evidence did she refer to any inability or unwillingness on her part to continue to provide gratuitous assistance, or that she would prefer (or would accept) the provision of commercial services: written submissions at par 23. 29These propositions were not challenged by the plaintiff (cross-appellant). Rather, counsel emphasised, as did the trial judge, the established need. 30If the party who bears the burden of establishing facts calls witnesses who have the relevant information to supply in respect of those facts but are not asked to give any evidence about the matter, there is no reason to infer that, if asked, they would have favoured that party's case. There is no point in seeking assistance in respect of factual inferences from other cases. No case is a precedent for a factual finding. On the other hand, where domestic assistance is being provided gratuitously and there is an absence of evidence that such assistance would cease either immediately, or at some time in the future, it would be inconsistent with principle to make an award for commercial domestic assistance, to commence immediately: Miller v Galderisi [2009] NSWCA 353 at [15]-[17] (Allsop P, Basten and Macfarlan JJA). The Court in Miller continued: "[19] The evidence accepted by the primary judge [as to] the additional domestic assistance required as a result of the accident ... was, since the accident and at the time of trial, being provided by the respondent's wife, with limited assistance from his son. Whether that assistance would continue to be provided by them on a gratuitous basis was a factor which the primary judge was entitled to take into account. If that circumstance were to change in the future, domestic assistance would, foreseeably, be required from a commercial provider. However, that expense was neither immediate nor inevitable. No doubt the likelihood of the contingency would increase with time, but other factors would have a contrary tendency. [20] There are four relevant variables, three of which relate to the condition of the respondent and the fourth to the circumstances of the carers. ... Secondly, the greater proportion of his disabilities resulted from his pre-existing condition and not from the accident. ... Thirdly, ... due to the respondent's state of health, age alone is likely to create a similar need for domestic assistance, in later years, to that created by the accident. [21] The fourth factor concerns the ability and willingness of family members to provide assistance." 31On the facts of that case, the Court held it was not appropriate simply to "pluck a figure out of the air because there is a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future": at [24]. In my view, the same conclusion should follow in the present case and the trial judge was correct to refuse to make such an award. 32If a different view were taken, a calculation of an award starting immediately and continuing throughout the life expectancy of the plaintiff could not be countenanced consistently with principles identified in Miller. The only approach available is to pluck a figure (to be described as a buffer) out of the air. If that course were to be taken (which I do not favour) the figure should not exceed $40,000. That figure takes into account the likelihood of the plaintiff not obtaining commercial assistance immediately and the likelihood that his other health problems will at some point overwhelm the limited needs assessed as resulting from the accident. Costs 33The successful parties should have their costs of the appeal and the cross-appeal in this Court. 34Depending on the outcome of these proceedings, it is unclear what order should be made for the costs of the trial. In the absence of agreement, the parties should have leave to file and serve submissions not exceeding three pages (together with any offers of compromise relied upon), within 21 days of the date of this judgment. Conclusions 35According to these conclusions, the Court should make the following orders: (1) Allow the appeal and set aside the judgment in favour of the plaintiff in the amount of $322,819 and the order as to costs. (2) Dismiss the cross-appeal. (3) In place of the orders in the District Court, order that the defendant pay to the plaintiff damages in of $209,832. (4) Order that the respondent pay the appellant's costs of the appeal. (5) Order that the cross-appellant (Mr Truong) pay the cross-respondent's costs of the cross-appeal. (6) In the absence of agreement, the parties have leave to file and serve within 21 days of the date of this judgment submissions not exceeding three pages (together with any offers of compromise relied upon) as to the orders sought with respect to costs in the District Court. 36In the results, Macfarlan JA and I are agreed that the appeal should be allowed and damages reduced by 35%. With respect to the cross-appeal, Macfarlan JA and Simpson J are agreed that there should be an award of damages for domestic assistance calculated (in accordance with the plaintiff's submissions) at commercial rates for three hours per week for the remainder of the plaintiff's life, as an amount of $86,310. The judgment below is calculated on the following basis: to the judgment in the District Court of $322,819 has been added the additional sum for domestic assistance of $86,310, the total being reduced by 35% on account of contributory negligence. 37There is much to be said for the view that, each party having had a measure of success, there should be no order as to the costs of the proceedings in this Court. However, the parties have not been heard on that issue and should have an opportunity to propose alternative costs orders, if that exercise is in the interests of their respective clients. 38Further, in the event that either party, having consulted with the other party, considers there has been a miscalculation of the damages, he may within the prescribed period of 14 days seek a variation of order (3). 39In the circumstances, the orders of the Court are as follows: (1) Allow the appeal and cross-appeal. (2) Set aside the judgment and order as to the costs of the trial, made in the District Court on 7 December 2012. (3) In place of the judgment of the District Court, order that the defendant pay to the plaintiff damages in an amount of $265,934, such judgment to take effect from 7 December 2012. (4) Make no order as to the costs of the proceedings in this Court. (5) In the absence of agreement, the parties have leave to file and serve within 14 days of the date of this judgment a notice of motion with submissions not exceeding three pages (together with any offers of compromise relied upon) as to: (a) the calculation of the judgment in order (3) above; (b) any variation of order (4), and (c) the orders sought with respect to costs in the District Court. 40MACFARLAN JA: I have had the advantage of reading Simpson J's judgment in draft. I gratefully adopt her Honour's description of these proceedings and the circumstances that gave rise to them. 41I agree with her Honour's conclusions that the primary judge did not err in rejecting the appellant's contentions that the plaintiff was contributorily negligent in failing to use a pedestrian crossing and in acting as he did upon seeing the appellant's vehicle. In further support of the rejection of the former contention, I note the evidence given by the appellant, who frequently drove down the relevant part of Regent Street, that "people used to often cross from the eastern side of Regent Street to the western side in the general area of where [the] accident happened" (Transcript p 148) and the expert evidence of Mr Johnston that one of the purposes of having an area in the centre of the road bounded by painted lines was "to provide a central pedestrian refuge for pedestrian crossing" (Transcript p 77). I also note that there was no reasonably accessible pedestrian crossing on Regent Street on the opposite side of the accident site from Regent Street's intersection with Lee Street. 42I do not however agree with her Honour's conclusion that the primary judge did not err in rejecting the contention that the plaintiff failed to keep a proper lookout. That contention was particularised in the appellant's Amended Defence, was pressed in the appellant's closing submissions at first instance, was included in the primary judge's summary of the particulars of contributory negligence, was maintained in the Notice of Appeal and was pursued in oral argument on appeal. 43The primary judge appears to have rejected this allegation of contributory negligence on the basis of an implied acceptance by him of the plaintiff's evidence that after he stepped onto the road he was "checking right and left as [he was] crossing" (see [92] in Simpson J's judgment). Whilst it was not expressly put to the plaintiff in cross-examination that his evidence in this respect was inaccurate, the allegation of a failure to keep a proper lookout was maintained despite this evidence, thereby indicating that it was in issue. 44In my view, the primary judge needed to weigh the plaintiff's evidence that he kept a proper lookout against the following circumstances relating to the accident. 45It was common ground on the appeal that the intersection of Regent and Lee Streets was about 70 metres from the accident site and that the appellant's vehicle travelled towards the plaintiff at no more than about 50 kilometres per hour after the traffic lights turned to green at that intersection. As 50 kph equates to 14 metres per second, it would have taken the appellant's vehicle at least five seconds to travel from the intersection to the accident site. Bearing in mind that the vehicle appears to have had a standing start, the period is likely to have in fact been longer. It was also common ground that the plaintiff did not see the appellant's vehicle until it was about 15 metres from him and, thus, about one second away. Accordingly, there were at least four seconds whilst the appellant's vehicle was travelling towards him during which the plaintiff did not see it. 46Estimates differed as to how long it took the plaintiff to walk across the road from the lane in which his vehicle was parked to the accident site. On appeal, his counsel contended that it would have been about three seconds. If that was so, the appellant's moving vehicle would have been in sight when the plaintiff set off and he should have observed it and been deterred from proceeding. The primary judge's estimate was about five seconds and that of Mr Johnston, an expert, about six seconds. If either of these were the case, the plaintiff would have seen the appellant's vehicle at about the time he set off or, if he kept checking to his right (as he said he did), almost immediately thereafter. In either case he could not prudently have proceeded. 47In my view the inevitable conclusion is that the plaintiff did not carefully check to the right for oncoming traffic at the time that he set off to cross the road, or at least did not continue to do so as he crossed. If he had done this, he would have had at least about five seconds warning of the approach of the appellant's vehicle rather than the one second he in fact had. The probabilities are therefore that if the plaintiff had kept a proper lookout, he would not have proceeded and the accident would have been avoided. The plaintiff was thus guilty of contributory negligence. 48I turn then to the question of apportionment of responsibility between the plaintiff and appellant. 49In my view responsibility should be apportioned 65% to the appellant and 35% to the plaintiff. As the appellant admitted liability and the primary judge did not consider apportionment (he having found that the plaintiff was not contributorily negligent), there were no findings as to the respects in which the appellant was negligent. However, it is clear that the appellant must have failed to keep a proper lookout for the same reasons I have concluded above that the plaintiff failed to do so. The plaintiff would have been in the appellant's field of vision for a number of seconds prior to the time at which he in fact saw him. On the judge's estimate of the plaintiff's walking speed, that would have been about four seconds. Whilst 50 kph may not have been an excessive speed in the circumstances, it was a significant speed at which to be travelling on a city street. It required the appellant to be especially vigilant, particularly when he knew that pedestrians frequently crossed the road in the area where he was driving. If he had kept a proper lookout, he would have had time to brake or, as he in fact tried unsuccessfully to do, to manoeuvre his vehicle around the plaintiff. 50Relevant to the apportionment exercise in this case is in my view the fact that the appellant was in charge of a fast moving vehicle that had the potential to do great harm to people or things in its path, whereas the consequence of carelessness on the part of the plaintiff was more likely to be, as it was, only harm to himself (Pennington v Norris [1956] HCA 26; 96 CLR 10 at 16; Anikin v Sierra [2004] HCA 64; 79 ALJR 452 at [46], [48] - [52]; Smith v Zhang [2012] NSWCA 142; 60 MVR 525 at [12] - [16]). The cross-appeal 51I agree with Simpson J's conclusion that the primary judge erred in largely rejecting the plaintiff's claim for damages in respect of future domestic assistance. In Miller v Galderisi [2009] NSWCA 353, this Court concluded that the evidence did no more than establish that there was "a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future" (at [24]). As Simpson J concludes, inferences should however be drawn in the present case "that Tony and David will cease the provision of their gratuitous services, and that Ms Pham will return to work and do likewise" (see [133]). Thus the plaintiff in this case is likely to need and obtain commercial domestic assistance in the future if an award is made under this head. The appellant accepted that if the evidence justified this conclusion, the plaintiff was entitled to recover under this head notwithstanding the stated contingency (that is, an award of damages under this head being made). 52I agree with Simpson J as to the quantum of the award. Orders 53Orders to give effect to the differing views of the members of the Court should be made in the terms stated in [39] of Basten JA's judgment. 54SIMPSON J: By Statement of Claim filed in the District Court on 30 June 2011 the plaintiff, Kim Hung Truong, claimed damages for personal injury sustained by him on 8 July 2008, when he was struck by a motor vehicle driven by the defendant, Jarryd Adam Gordon. The claim was governed by the Motor Accidents Compensation Act 1999 (NSW). 55The proceedings were listed for hearing on 8 October 2012. Shortly before that date, the defendant admitted breach of duty of care (which he had previously denied). He maintained an earlier plea that the damages to be awarded to the plaintiff should be reduced by reason of contributory negligence on the part of the plaintiff. 56The plaintiff claimed damages under a variety of heads, of which only one remains in issue. That was a claim by him for a component in the award of damages for domestic assistance that he would require into the future. 57Two issues arose for determination in the District Court. They were: (i)whether the plaintiff was guilty of contributory negligence; (ii)the quantum of damages to be awarded. 58On 7 December 2012 Phegan ADCJ delivered judgment. He rejected the defendant's claim of contributory negligence on the part of the plaintiff. He awarded the plaintiff damages under all heads claimed, other than for future domestic assistance. The total sum awarded was $322,819. 59By Notice of Appeal the defendant appeals against the rejection of the plea of contributory negligence. By Notice of Cross-Appeal, the plaintiff appeals against the refusal to award damages for future domestic assistance. Background 60The plaintiff is an Australian citizen, born in Vietnam in 1956. He came to Australia in 1975. Since 1980 he has lived in a de facto relationship with Ms Thi Pham, and they have one child, a son aged 26 at the date of hearing. Ms Pham has two adult sons from a previous relationship. One of her sons (now 41 years of age) has an intellectual disability resulting from brain damage suffered in an accident when he was eight years of age. For some years (prior to 2008) Ms Pham had been in receipt of a carer's pension to enable her to look after her son. She had, however, until 2008, also worked three days per week as a cook in a hotel restaurant. She was able to do this because the plaintiff assisted in looking after her son. As a result of the plaintiff's injury, Ms Pham gave up this employment in order to care for him as well as for her son. 61From his arrival in Australia in 1975 the plaintiff worked in a variety of occupations. In 1983 he opened a restaurant in Sutherland which he operated for about 10 years. 62In 2003 the plaintiff suffered a stroke from which he has substantially recovered. He also suffers from hypertension, gout and diabetes. The gout has been recurrent and has intermittently affected his ability to walk and stand. At times it has been incapacitating and he has required assistance from Ms Pham and their son. A significant issue in the District Court proceedings concerned the extent (if any) to which the plaintiff's pre-injury conditions affected his mobility. The evidence relevant to this issue will be considered in more detail below. 63In 2006 the plaintiff was granted a disability pension. He was still in receipt of that pension in July 2008. In 2007 he sought and was granted a disabled parking permit. The appeal The motor vehicle accident 64The motor vehicle accident occurred just before midday on 8 July 2008, on Regent Street, Chippendale. The plaintiff drove from his home in Panania to Regent Street in order to call at the Registry of Births Deaths and Marriages. He was unfamiliar with the area. 65Regent Street runs generally north-south, commencing at Broadway (also known as Parramatta Road). At a point a little south of Broadway, it veers towards the west, at approximately a 45 degree angle, and forms a Y-intersection with Lee Street. Lee Street is almost a continuation of that part of Regent Street that is south of the intersection. About 10 metres north of the intersection, in Lee Street, is a pedestrian crossing. 66On the western (northbound) side of Regent Street are three traffic lanes, two of which carry moving traffic, and one of which was occupied by parked vehicles. On the eastern (southbound) side, three lanes carry moving traffic, and one accommodates parked vehicles. Two unbroken lines mark out an unraised median strip. There was no uniformity in how the lanes were referred to (by numbers) in the evidence, and that has been the cause of some confusion. It can now be taken as agreed that the four lanes in the southbound carriageway are referred to as lanes 1-4, with lane 1 being the parking lane, lane 4 being the lane adjacent to the median strip. 67The precise circumstances of the accident are the subject of some controversy, relevant to the allegation of contributory negligence. 68In what is probably the first account given of the accident, the defendant made a statement to a police officer who attended the scene. The statement is recorded in the police officer's notebook, relevantly as follows: "I was stopped at the intersection Lee St and Regent St. The lights have gone green and I started to travel south on Regent Street in lane 3 [lane 4]. I had travelled about 50m from the intersection when the pedestrian was standing on the line between lanes 2 [lane 3] and 3 [lane 4]. It looked like he was about to take off, to run across the road. So I then tried to move into lane 2 [lane 3]. The male looked at me, then stopped and started to move backwards. I then slammed the brakes on but couldn't stop in time before hitting the male. He pretty much hit the centre of my car ..." The defendant estimated his speed, at the time of collision, as about 40 to 50 kph. (It became clear that, when the defendant said that the plaintiff was "on the line between lanes 2 and 3" he was counting only the moving traffic lanes, and that, on his account, the plaintiff was on the line between what are now agreed to be lanes 3 and 4 - that is, entering the lane nearest the median strip.) 69In oral evidence, the defendant said that he was travelling in lane 4. When the lights turned green in his favour, he proceeded around the bend in that lane, and that was where he saw the plaintiff on the line dividing lanes 3 and 4. He estimated that when he first saw the plaintiff he was "maybe" 40 metres away. Contrary to what he had said in his police statement, he gave evidence that his speed was (he imagined) under 40 kph. 70The defendant said that the plaintiff reached the dividing line, "sort of stopped" and apparently decided "to go"; "he went to take off, took a step to run". The defendant said that he (the defendant) then checked to see if any vehicle was in the lane next to him, and tried "to get out of the way". He saw the plaintiff then stop, take a step back to the centre line, and appear to panic. He again identified the point of impact as in lane 3, almost on the line between lanes 3 and 4. 71When asked further about the plaintiff's actions, the defendant said that the plaintiff "took a fairly big step" (forward, towards the west), then "took a step backwards". He said the plaintiff did not turn. The defendant said that when he saw the plaintiff take the step forward (west) he (the defendant) swerved to the east; it was when he saw the plaintiff "retreat" (to the east), that he first braked, and that he then attempted to veer to the west. 72Given the way the proceedings were conducted in the District Court (see below) it was not necessary that the primary judge make findings about the credibility of the defendant. It is apparent, however, merely from reading the transcript, that he was a difficult, and to some extent unco-operative and combative, witness, and unreliable when it came to estimations of speed and distances. 73The plaintiff's evidence was given through an interpreter. He gave evidence that he had once, two years earlier, been to the area, but that, although he had some directions from a friend, he did not know where the Registry of Births Deaths and Marriages was. He drove through the Lee Street intersection from the northern part of Regent Street. Just before midday he parked his car in the first available parking spot, about 70 metres south of the intersection. There was no pedestrian crossing, either to the north or to the south, visible from where he parked his car. 74Before commencing to cross the road he looked to the right and saw that the traffic lights at the Regent Street/Lee Street intersection were red, and that no traffic was coming through the intersection. He looked to the left and then to the right again and saw that the lights were still red and that there was still no traffic coming from the north. He therefore commenced to cross, walking quickly. As he did so "I continue check on my right hand and my left hand side before continuing to walk". He reached about the middle of lane 3. He saw the defendant's van driving quickly towards him from the intersection. It was also in lane 3. He turned 180 degrees to his left, took about three steps, and stopped on the white line between lanes 2 and 3. He was then facing the eastern kerb. It was there that the van hit him. He heard the sound of braking. He said that he turned 180 degrees because his right leg often felt weak, and he could not step backwards. The following questions and answers appear in the transcript: "Q Can you describe please what happened after you saw that vehicle coming from the right? A ... so I saw that car from the distance around 50 metre from me and then I turn around 180 degree to my left and I stop at the white line between the second lane and third lane, then that van hit me while I was standing on second lane. Q You said you saw the car coming from a distance of about 50 metres. Did you form any impression as to the speed with which it was approaching you? A I think that they were at fast speed. Q Why did you turn 180 degrees? A Because my right leg is often I feel weak so I cannot step backwards. That's why I bear on the left leg and I turn 180 degree." Immediately before that, the plaintiff had said: "I can walk as a normal person and I travel fast." 75The collision was observed by Mr Kevin Andronos, a barrister, who was driving north in Regent Street. His attention was attracted by the sound of sharp braking coming from the defendant's van. Mr Andronos saw the plaintiff in the middle of lane 3, his body facing west, his head turned to the right (north). The van was travelling south in the same lane. The plaintiff was looking towards the van. He "looked to take a step forwards, and then he looked to take a step backwards". The van deviated to the west, and then to the east. Mr Andronos saw the van strike the plaintiff. At that point the plaintiff was still "pretty much in the centre of lane 3". Mr Andronos said: "Now, perhaps I should explain the reason he looked to me to be taking a step forward, then backwards, is that simultaneous with his movement, the van looked to deviate from its straight travel along the lane, to the van's right [that is, west], which was to my left, which was also to the pedestrian's forward, and then deviated again to the van's left [that is, east], to my right, which was the pedestrian's backwards and the impression I had was of both the pedestrian and the van becoming aware of each other and seeking to avoid each other, but inadvertently moving in the same direction on both occasions." No objection was taken to this evidence. 76It will be observed that the evidence of Mr Andronos concerning the defendant's attempts to avoid striking the plaintiff were the direct opposite of that of the defendant himself. The defendant said that he first swerved east, as the plaintiff stepped forward, and then swerved west when he saw the plaintiff step back. Mr Andronos said that the defendant first swerved west, and then east. 77Mr Andronos' evidence casts doubt on the plaintiff's evidence that he turned to his left, 180 degrees, to face east. Mr Andronos saw the plaintiff looking to his right, towards the defendant's vehicle. The proceedings in the District Court 78It is important to understand how the case was conducted in the District Court. It was not there conducted on the basis that it was unsafe for a pedestrian to attempt to cross Regent Street other than at a marked pedestrian crossing. Essential to the case as presented on behalf of the defendant was the contention that the plaintiff's mobility was, by reason of his various health issues, impaired. It was that asserted fact that, on the defendant's argument, rendered it unsafe for the plaintiff to attempt that crossing other than at the pedestrian crossing some distance away in Lee Street. 79The basis on which, on behalf of the defendant, breach of duty of care was admitted was not spelled out in the District Court. Attention was primarily focussed on the allegation of contributory negligence made against the plaintiff. Contributory negligence was there particularised in the Amended Defence as follows: "(a) failing to keep a proper lookout; (b) failing to cross Regent Street when it was safe to do so; (c) staying on Regent Street longer than necessary to cross the road safely; (d) failing to cross Regent Street by the shortest safe route; (e) failing to cross Regent Street at the pedestrian lights at the intersection of Lee Street; and (f) moving into the path of the defendant's vehicle." 80No evidence supported, and no argument was addressed to, the particulars lettered (c) and (d). With respect to particular (e), the evidence showed that there were no pedestrian lights at the Lee Street intersection; the pedestrian crossing in Lee Street was about 10 metres further to the north. That crossing was about 115 metres from the point on the eastern kerb of Regent Street from which the plaintiff commenced to cross the road. 81In the particulars there was no express assertion that the plaintiff suffered from "impaired mobility". At an early stage in the proceedings some consideration was given to separating the issues of contributory negligence and damages. In that context, counsel who appeared for the defendant told the court that he proposed, on the issue of contributory negligence, to ask the plaintiff some questions about "his mobility problems at the date of the accident". Senior counsel who appeared for the plaintiff inquired about the relevance of the plaintiff's medical conditions to that issue. Counsel for the defendant replied: "It would fall within para 5B, your Honour, of the amended defence, failing to cross Regent Street when it was safe to do so. That embraces both the prevailing traffic conditions and his limitations." Both the primary judge and senior counsel for the plaintiff accepted that evidence of mobility restrictions making it unsafe for the plaintiff to cross the road could be relevant to that particular. (It may here be interpolated that no evidence was called to support the allegation that "the prevailing traffic conditions" affected the safety of the plaintiff's attempt to cross Regent Street. To the extent that any evidence was given concerning traffic conditions, it appears to have suggested that traffic was light. Mr Andronos observed two cars travelling south, a little distance behind the defendant.) 82It was thus never the defendant's case that it was, per se, unsafe to cross Regent Street other than at a marked crossing. The defendant's case throughout was that it was unsafe for the plaintiff, in his particular circumstances, to do. The "particular circumstance" relied upon was what was asserted to be his impaired mobility resulting from one or more of his medical conditions. That assertion called for a finding of fact as to whether the plaintiff's mobility was impaired, and, if it were, the extent of the impairment. 83In the District Court, some emphasis was also placed on the allegation that the plaintiff failed to keep a proper lookout. On appeal (but not in the District Court) emphasis was also placed on particular (e), asserting that the plaintiff moved into the path of the defendant's vehicle. Although that was there pleaded, no submissions were directed to it. 84The entirety of the defendant's submissions in the District Court, which were in writing, with respect to contributory negligence, was as follows: "42 Particular (b) above embraces the concept of the plaintiff's knowledge of his own restricted movement. This was addressed at an early stage in the proceedings. The defendant's case is that the particular location chosen by the plaintiff was not safe for him to cross by reason of the volume of traffic in combination with his mobility restrictions which were longstanding and had necessitated a disabled parking permit some months before the accident. The plaintiff himself made reference to restrictions of movement in his evidence. 43 Viewed objectively, the defendant's case is that the plaintiff ought to have known the location was unsafe for him to cross and he should have used the pedestrian crossing lights which were available to him. 44 The defendant's case on contributory negligence is not limited to the mobility issue as can be seen by the evidence of Grant Johnson (sic) discussed above. It is plain from that evidence that the plaintiff has failed to keep a proper lookout for the defendant's vehicle, and thereby deprived himself of the opportunity to take appropriate evasive action with sufficient time to avoid the collision. Such action could have been taken at a stage well before the plaintiff entered the lane occupied by the defendant and well before the plaintiff ultimately attempted to avoid the collision. 45 It seems clear from the plaintiff's evidence that he erroneously assumed the red light to the north meant that no vehicles were coming from that direction. This may explain his failure to see the defendant's vehicle before he did so. In these circumstances, the court should comfortably be satisfied of a finding of contributory negligence on the part of the plaintiff." The reference in para 42 to the plaintiff's evidence concerning restrictions of movement was a reference to his evidence that weakness in his right leg meant that he could not step backwards. Despite the reference in that paragraph to "volume of traffic" there was, as noted above, no direct evidence to establish what that volume was. Certainly there was no evidence to suggest a conclusion that the volume of traffic was such as to make it unsafe for the plaintiff to attempt to cross the road. In this respect, the defendant's case stood or fell on the assertion that the plaintiff's mobility was impaired. 85Oral evidence was given in the plaintiff's case by Mr Andronos, the plaintiff, Ms Pham, two medical practitioners and by a consulting engineer, Mr Grant Johnston. Mr Johnston had been retained to prepare an expert report at a time when the defendant's liability was in issue. He was specifically asked to report on whether the defendant had exercised reasonable care, and whether any act or omission "by the driver of the unidentified vehicle" was causative of the collision. (The reference to an "unidentified vehicle" is a mystery. Nowhere in the relevant material is there any reference to any relevant vehicle other than that driven by the defendant. Mr Johnston seems to have misunderstood this part of his instructions; his brief response to that question also focuses upon the defendant.) 86Because his role was to provide an analysis with respect to the defendant's liability, Mr Johnston's report is of limited assistance. His oral evidence is more useful, directed to contributory negligence on the part of the plaintiff. 87Both the plaintiff and Ms Pham gave evidence about the plaintiff's pre-accident physical condition. In his evidence in chief, the plaintiff said that he had made a full recovery from the stroke in 2003. He said that he was granted a disability pension principally because of the gout in his right knee which caused weakness, but also because of high blood pressure, a heart problem, and diabetes. Notwithstanding those conditions, he said, he walked normally. He said that he suffered "episodes" of gout, and that these "episodes" caused pain in the knee, and affected his capacity to walk and to stand. Other than during these "episodes", he could walk and stand normally. He said that on the day of the accident he was not having an "episode". He said that his walking and driving on that day were normal. 88Ms Pham gave evidence to similar effect. She said that by 2008 the plaintiff was suffering no after-effects of his stroke. She also gave evidence of intermittent pain from gout, but said that in the period immediately preceding the accident, the plaintiff was having no problems with his knee. The judgment in the District Court 89The primary judge noted the variation in the three descriptions of what had happened. He held that it was more likely than not that the plaintiff had reached lane 3, and that he then looked "again" to the right. It was at this point that he saw the defendant's vehicle approaching. He accepted that the defendant was travelling at between 40 and 50 kph. He took the view that the account given by Mr Andronos was likely to be the most reliable of the three. 90The primary judge summarised the defendant's case on contributory negligence as: * "that the particular location chosen by the plaintiff was not safe for him to cross by reason of the volume of traffic in combination with his mobility restrictions" (italics added); * "the plaintiff ought to have known the location was unsafe for him to cross, and he should have used the pedestrian crossing lights which were available"; * "the plaintiff failed to keep a proper lookout for the defendant's vehicle, and therefore deprived himself of the opportunity to take appropriate evasive action with sufficient time to avoid the collision". There was no suggestion in this summary that the defendant had presented a case that the plaintiff was negligent by moving into the path of the defendant's vehicle (particular (f)). 91With respect to the plaintiff's asserted "mobility restrictions", the primary judge considered that the plaintiff's evidence, that he suffered no after-effects from the 2003 stroke was "an overstatement", and that he did suffer some after-effects which had not entirely dissipated by the time of the motor vehicle accident in 2008, and that those after-effects as well the gout was still in evidence at that time. However, he held: "The evidence also supports the conclusion that the gout had stabilised by July 2008, that is the time of the motor vehicle accident and there were times when the plaintiff, as far as that condition is concerned, was entirely free of symptoms. According to the plaintiff's evidence, the morning of the motor vehicle accident was such a time. He was untroubled by what he understood to be the residual symptoms of gout rather than any other medical condition and that on that occasion he was able to walk quickly without difficulty when he crossed the road. ... I am satisfied that the evidence does not go far enough to establish that the plaintiff was negligent in choosing to cross the roadway at the point he did, that he was on that occasion able to move freely and to walk reasonably quickly, which was what necessary to cross the road with safety. It was therefore not a failure on his part to exercise reasonable care, in not choosing another point to cross the road. There was, on his evidence, and there is no evidence to contradict it, no traffic in sight, particularly to his right when he started to cross the road. On that evidence he was entitled to assume that he had sufficient time to get at least to the median strip before encountering any oncoming traffic." No ground of appeal challenges these findings of fact. 92The rejection of the contention that the plaintiff's mobility was impaired undermined the defendant's case as pleaded in particulars (b) and (e), and the first and second of the defendant's contentions at trial as summarised by the primary judge. The primary judge then turned to consider the allegation that the plaintiff had failed to keep a proper lookout. In that respect, he said: "The plaintiff's evidence, again unchallenged, was that before he started to cross the road, that is, when he was standing at the rear of his vehicle, he looked right and left and right again and was at that stage satisfied that there was no traffic within his view proceeding south along Regent Street. On the evidence of Mr Johnston there would have been no more than five seconds between his starting to cross the road and his reaching the point where he looked right and saw the defendant's vehicle, at that stage closely approaching him. It is quite possible, although there is no evidence to this effect, that the plaintiff had looked right again, that is between his starting to cross the road and finally seeing the defendant's vehicle, at a point when the defendant's vehicle was still out of view. He was asked in the course of his evidence in chief: 'Q. You were checking right and left as you were crossing?' and this answer was 'Yes.'." 93In saying that there was no evidence that the plaintiff had looked right again after leaving the kerb, his Honour overlooked some evidence given by the plaintiff, which, in fact, the primary judge mentioned in the very next sentence. That answer was preceded by this answer: "So I continue forward and I continue check on my right hand side and my left side, before continuing to walk." 94On the basis of that conclusion, the primary judge rejected the third of the defendant's contentions concerning contributory negligence, that is, that the plaintiff had failed to keep a proper lookout. No ground of appeal challenges the findings of fact inherent in the passage above. 95Notwithstanding the conclusion that the plaintiff had "overstated" his recovery from the stroke, the primary judge accepted the plaintiff as a generally truthful witness. It is plain that he accepted the plaintiff's evidence that he had continued to monitor the road as he crossed. The grounds of appeal 96Although 10 grounds of appeal were pleaded, they were conveniently refined, in the defendant's written submissions, to three categories: (i)failure to keep a proper lookout (grounds 2-5); (ii)failure to use a pedestrian crossing (grounds 6-7); (iii)the respondent's conduct on seeing the appellant's vehicle (grounds 8-9). 97The written submissions filed on behalf of the defendant in respect of the first and second categories depended heavily on what was said to be a finding by the primary judge that the plaintiff did suffer from impaired mobility. Indeed, in respect of the second category, it was put that: "61 The critical point was whether the [plaintiff's] mobility was impaired. Once the Primary Judge found that it was impaired, his Honour erred in failing to find that the [plaintiff] failed to take reasonable care in crossing Regent Street where he did." This betrayed a misreading of the relevant finding of fact. 98I will deal with the proposed grounds in a slightly different sequence than stated above. (ii) Failure to use a pedestrian crossing 99In the written submissions filed in this Court on behalf of the defendant, it was acknowledged: "It may have been reasonable for a pedestrian whose mobility was unimpaired, to cross Regent Street where the respondent did. There was an opportunity to use the painted median area in the centre of Regent Street as a 'pedestrian refuge', if traffic approached. The crossing could be completed in two stages, if necessary." (underlining in original) This reflected the position taken in the District Court - that is, that it was the (asserted) impaired mobility of the plaintiff that made crossing Regent Street other than at a pedestrian crossing unsafe. 100The submissions that followed proceeded on the basis that the primary judge had found as a fact that the respondent's mobility was impaired. This was not so. The primary judge, in fact, found to the contrary, as set out above. 101In oral submissions, the ground shifted somewhat, to the proposition that the plaintiff suffered from "restricted agility", and that, therefore, he ought to have used the pedestrian crossing some distance away in Lee Street. There is, in my opinion, little difference between "impaired mobility" and "restricted agility". To the extent that there is a difference, the new position adopted by the defendant is a departure from the way the case had been conducted in the District Court, and should not now be allowed. In support of the proposition that the plaintiff suffered "restricted agility", senior counsel relied on the evidence given by the plaintiff concerning what happened after he first saw the defendant's van, that he had turned 180 degrees because he could not step backwards. This was the only evidence of restricted agility on the part of the plaintiff. He is restricted in stepping backwards. There was no reason why he should not walk forward, as he intended to do when he left the kerb. 102There was no evidence that the plaintiff was aware of the pedestrian crossing in Lee Street, and nothing to indicate that he ought to have been so aware. He had driven through the Regent Street/Lee Street intersection, but from the northern end of Regent Street. The pedestrian crossing was some distance north in Lee Street. There was nothing to suggest that it was visible from the intersection when the plaintiff passed through, nor that he ought to have been looking for a crossing. He was unfamiliar with the area. It was not visible from where he parked his car, and there was no other pedestrian crossing in sight from where he parked his car. When he began to cross the road, he looked to the right, to the left, and to the right again. The traffic lights at Lee Street were red, and there was no southbound traffic in Regent Street. There was no reason that he should not commence his crossing at that point. 103I would reject these grounds of the appeal. (i) Failure to keep a proper lookout 104As initially outlined in the written submissions, the argument in support of these grounds also depended upon what was said (erroneously) to have been a finding by the primary judge that the plaintiff's mobility was impaired. In oral argument, that was abandoned. The "limited agility" point was relied on only in support of the category (ii) grounds. 105As developed orally, the argument was that the plaintiff ought to have maintained a vigil to his right in order to alert himself to any oncoming traffic, but failed to do so. Had he done so, he would have been in a position to take evasive action, either by hastening to the median strip, which would have afforded a measure of pedestrian refuge, by stopping on the dividing line to allow the defendant's vehicle to pass, or by retreating to the eastern kerb (or the parking lane). 106This ignores the evidence, implicitly if not explicitly accepted by the primary judge, that the plaintiff did precisely what it is now contended he ought to have done - that is, maintained a vigil to his right. 107There was in the argument a considerable amount of evidence concerning the precise time at which the plaintiff first became aware of the defendant's vehicle, and his location at that time. From the relevant evidence, it was suggested that an inference was available that the plaintiff had not looked to his right after he commenced the crossing. Such an inference cannot stand in the face of the explicit evidence. (iii) The plaintiff's conduct on seeing the appellant's vehicle 108As particularised in the District Court, the defendant's claim in this respect was that the plaintiff moved "into the path of the defendant's vehicle" (particular (f)). The particular is not specific as to whether this was intended to be a reference to the plaintiff first stepping forward towards lane 4 (as described by Mr Andronos and the defendant), or stepping back towards the eastern kerb. 109On the appeal, senior counsel abandoned any reliance on the plaintiff's step back as indicative of contributory negligence. It was recognised that the plaintiff's action in stepping back was to take appropriate evasive action. The collision occurred because the defendant also took evasive action; the result was that both parties moved into the same lane. Neither can be criticised for this. 110Reliance was placed solely on the plaintiff having taken one step forward. This was not a case made in the District Court. The defendant should not now be permitted to attempt to make a different case: Water Board v Moustakas [1988] HCA 12; 180 CLR 491; Smith v McFarland [2013] NSWCA 378. 111In any event, in my opinion, one step forward, taken instantaneously after the plaintiff first saw the defendant's vehicle, cannot be characterised as negligent. It was not inappropriate that the plaintiff seek to avoid the danger by hastening his walk to the relative safety of the median strip, before realising that the time available would not permit this to be achieved. 112Moreover, the evidence given by Mr Andronos was to the effect that both the plaintiff and the defendant sought to avoid each other but did so by moving in the same direction - first to the west, then to the east. The plaintiff could not have anticipated that the defendant would take evasive action in the same direction that he did. 113Further, it was not the step forward that was the cause of the collision and therefore the plaintiff's injury. It was the step back that brought him into collision with the defendant's vehicle. That was an attempt to avoid collision. In my opinion it does not denote a failure on the part of the plaintiff to take care for his own safety. 114In my opinion these grounds fail. 115In my opinion, once it is accepted (as it is by the defendant) that it was not negligent for the plaintiff to cross Regent Street in the location that he did, and the finding of the primary judge that the plaintiff's mobility was not, on the day in question, impaired, there is no basis for a finding of contributory negligence. 116I would dismiss the appeal. The cross appeal Domestic assistance/attendant care 117It has long been recognised that it is, frequently, an inevitable consequence of traumatic injury that the injured person will require additional assistance in the activities of daily life: see Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161. Such services are frequently provided by family members, without charge. Often that is because there is no practical alternative. 118Section 141B of the Motor Accidents Compensation Act imposes a limit on the extent to which a plaintiff to whom the provisions of the Motor Accidents Compensation Act apply may recover damages for gratuitously rendered services. Sub-sections (1)-(3) provide as follows: "(1) Compensation, included in an award of damages, for the value of attendant care services: (a) which have been or are to be provided by another person to the person in whose favour the award is made, and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section. (2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident. (3) Further, no compensation is to be awarded unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months." Where the services are not provided or to be provided gratuitously, s 141B has no application. 119The plaintiff claimed damages for services of this kind to the date of trial and thereafter. The primary judge made an award in respect of the period prior to trial. No issue arises on the appeal in respect of this award. 120The plaintiff claimed a need for assistance in the future amounting to 9 hours per week. The primary judge rejected that claim and found that he had established a need for only "between 2 to 4" hours per week. This represented domestic services provided by Ms Pham, and outdoor house and garden maintenance undertaken by one or other of two able-bodied adult sons. 121Because the plaintiff's need failed to reach the threshold specified in s 141B(3)(a), his Honour rejected the claim. He considered himself bound to do so by the decision of this Court in Miller v Galderisi [2009] NSWCA 353. 122The relevant evidence was as follows. At the date of hearing (December 2012) the plaintiff and Ms Pham lived in Panania. Also living in the house were Ms Pham's father, Ms Pham's two sons, Phuong (then 41 years of age and disabled) and Tony; David, the son of the plaintiff and Ms Pham; and Tony's wife. Ms Pham's younger son, Tony, was variously described in the evidence as a graphic designer, and as operating his own restaurant at Bankstown. By the time of the hearing he was married but still living with the plaintiff and Ms Pham. His age was not given in evidence. David was 26 and in his third year studying pharmacy at the University of Newcastle. It appears that he travelled daily to and from Newcastle. 123Prior to the plaintiff's injury, Ms Pham worked three days a week in a restaurant. She did this concurrently with looking after her disabled son, Phuong. She received a carer's pension to enable her to look after Phuong. The plaintiff assisted in the care of Phuong. As a result of the plaintiff's injury, Ms Pham surrendered her employment, in order to care for both Phuong and the plaintiff. In the early stages, the plaintiff needed quite intensive care. As time went on, that need diminished. 124There was no question that the assistance given to the plaintiff by Ms Pham and the two sons had, to the date of hearing, been provided gratuitously. It was not in question that the plaintiff will continue to be in need of such assistance at the level found by the primary judge - between 2 to 4 hours per week. The direct evidence, however, was lacking as to the basis on which it could be anticipated that those services would, in the future, be provided. 125The primary judge considered himself bound by the decision in Miller to decline to make an award for future services. His decision was based upon an unstated assumption of fact. The unstated assumption was that the services would continue to be provided, as they had been in the past, on the basis that the plaintiff was not liable to pay for them. 126That assumption was, in my opinion, unwarranted. The probabilities are that both of the able-bodied sons, Tony and David, will, in due course, move out of the plaintiff's home and establish their own homes. It cannot be assumed that they will be in a position to devote the time that they have to date to the care of the plaintiff. Indeed, the evidence was that, prior to the plaintiff's injury, they had done little by way of domestic work. 127Moreover, the probabilities are that Ms Pham will elect to return to her part-time employment, which she gave up only because of the need to care for the plaintiff. If Ms Pham does return to her employment, it will be necessary to replace her contribution to the plaintiff's care with paid services. 128Despite a reference by the primary judge to "the very clear statements of general principle" made by this Court in Miller, that was a case decided on its own facts. The primary judge in this case considered that the facts in Miller bore "an uncanny resemblance" to the facts in the present case. 129In Miller, the plaintiff was also injured in a motor vehicle accident. He had significant pre-existing medical history. The trial judge found that he had an increased need for domestic assistance as a result of the motor vehicle accident, of 4 hours per week, which he allowed at commercial rates. The evidence showed that, to the date of trial, that assistance was being provided by his wife, and, to a limited extent, by an adult son who lived with the plaintiff and his wife. The Court treated the assistance as having been provided gratuitously. The judgment in this Court does not reveal that any finding was made about the likely continuation of that gratuitous assistance, which suggests that none was made. The Court said: "15 ... The appellant pointed out, correctly, that there was no evidence that this gratuitous assistance would cease at some time in the future. 16 In our view, the award made by his Honour cannot be justified. It was made upon the assumption that the respondent required commercial domestic assistance immediately and would continue to do so for the rest of his life. However, it is clear that he did not require it immediately because it was being provided gratuitously, though to the extent that it could be attributed to the accident, not at a level of intensity that permitted recovery from the appellant." 130Notwithstanding an apparent correspondence of facts, there is a very significant point of differentiation between the facts of Miller and the facts of the present case. In Miller, the plaintiff's wife was in receipt of a carer's pension, granted for the very purpose of enabling her to provide care to the plaintiff. Although it was not given as a reason in this Court, it seems to me that, to award damages to enable the plaintiff to pay for assistance at commercial rates, while his wife continued to receive a pension for that very purpose, would amount to unjust enrichment, and be contrary to principle. In fact, it is difficult to say that the services in Miller were being rendered gratuitously. They were being paid for, although not by the plaintiff, and the plaintiff was not liable to pay for them. The implicit finding of this Court was that the assistance would continue to be rendered, and it would continue to be paid from resources other than those of the plaintiff. In the terms of s 141B, therefore, they were services for which the plaintiff would not be liable to pay. In the circumstance that the plaintiff's wife was in receipt of a carer's pension for the very purpose of providing the services it was an inevitable conclusion that the services would continue to be rendered on the basis that the plaintiff would not be liable to pay for them. 131In this case, Ms Pham was also in receipt of a carer's pension, but well before the plaintiff's injury. That pension had nothing to do with the plaintiff's injury. Unlike in Miller, services rendered by Ms Pham to the plaintiff, additional to those she rendered pre-injury, were rendered gratuitously. There is not the same basis for a finding - or an assumption - that Ms Pham will continue to render the services gratuitously, once the plaintiff has funds. 132An underlying fact in relation to s 141B is whether, in future, services will be provided on a basis that does not expose the plaintiff to a liability to pay. That is a predictive exercise. In this case, there was no direct evidence that Ms Pham would continue to look after the plaintiff on the same basis as she had done in the past. The judge was required to draw inferences from the evidence (as does this Court). 133There was no evidence of the plaintiff's pre-injury financial position, or that of Ms Pham, other than that the plaintiff was in receipt of a disability pension, and Ms Pham in receipt of a carer's pension. From that, it may be inferred that it was (financial) necessity that resulted in Ms Pham providing the services that she did without payment. Following the award of damages to the plaintiff, necessity will not dictate the provision of services without payment. It may be inferred that Ms Pham will return to work, and the plaintiff will be obliged to pay for additional services. That he has a fund available to him should not disentitle him to an award of damages for that purpose. The damages he was awarded for compensation under other heads should not be depleted in order to permit him to receive the care to which he is entitled. 134It was an error for the primary judge to conclude that Miller obliged him to decline to make an award. Having found that the plaintiff was in need of domestic assistance for between 2 to 4 hours per week, it was necessary for the judge to consider on what basis those services would be provided. That is a finding of fact that was not made. The evidence in that respect was scanty. Neither counsel made any attempt to explore the willingness of Ms Pham or Tony or David to continue to do what they were doing, nor their likely capacity to do so. That finding must be made, as best it can, by inference from the evidence that was given. Section 75A of the Supreme Court Act 1970 (NSW) permits this Court to draw the necessary inferences, provided the evidence is available. I would draw the inferences set out above - that Tony and David will cease the provision of their gratuitous services, and that Ms Pham will return to work and do likewise. 135There is no reason to depart from the finding of the primary judge that the plaintiff required domestic assistance between 2 to 4 hours per week. It was not established that that assistance will be provided gratuitously in the future. Section 141B has no application unless that is established. The plaintiff is entitled to an award of damages for domestic assistance at commercial rates for 3 hours per week for the remainder of his life. His life expectancy is 30 years. The commercial rate of assistance is $35 per hour. Applying the appropriate multiplier, the plaintiff claims to be entitled, in addition to the damages awarded, to an award of $86,310 under this head of damages. I would therefore allow the cross-appeal and direct the parties to undertake the necessary calculations to give effect to these conclusions. 136The orders I propose are: (1) Appeal dismissed. (2) Cross-appeal allowed. (3) The parties to bring in short minutes of order to reflect the conclusions above. ********** 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 April 2014