Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Allen v Robbie [2015] NSWCA 247 Hearing dates: 23 July 2015 Date of orders: 25 August 2015 Decision date: 25 August 2015 Before: McColl JA at 1; Simpson JA at 2; Harrison J at 3. Decision: Appeal dismissed with costs Catchwords: APPEAL – negligence – motor vehicle accident – plaintiff pedestrian struck by car turning onto roadway – findings – whether trial judge made findings of fact sufficient to support his conclusions – whether trial judge engaged in a rational examination or analysis of the evidence EVIDENCE – expert report– whether expert possessed special or particular knowledge or understanding of the plaintiff's pre-accident work – where expert offered opinions not based on expertise – whether trial judge erred in rejecting tender of expert report DAMAGES – economic loss – whether plaintiff's pre-accident earnings were a genuine reflection of her earning capacity Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Category: Principal judgment Parties: Lisa Victoria Allen (Appellant) Jeanette Robbie (Respondent) Representation: Counsel: R R Stitt QC & D Wilson (Appellant) J E Sexton SC & L T Grey (Respondent) Solicitors: Gillis Delaney Lawyers (Appellant) Slater and Gordon Lawyers (Respondent) File Number(s): 2014/318098 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: New South Wales Date of Decision: 10 October 2014 Before: Williams ADCJ File Number(s): 2013/54514 [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.] Judgment 1. McCOLL JA: I agree with Harrison J's reasons and the orders his Honour proposes. 2. SIMPSON JA: I agree with Harrison J. 3. HARRISON J: Jeanette Robbie was injured on 15 April 2010 when she was struck by a motor vehicle driven by Lisa Allen on the Great Western Highway at Blackheath. Ms Robbie sustained severe injuries. She sued Ms Allen for damages in the District Court of New South Wales. The proceedings were heard by Williams ADCJ who found that the accident had been caused by the negligence of Ms Allen. His Honour gave judgment for Ms Robbie, undiscounted for contributory negligence, and awarded her damages in the sum of $685,580. 4. Ms Allen appeals from that decision on the following grounds: 1. His Honour failed to make necessary findings of fact. 2. His Honour failed to engage in any rational examination or analysis of the evidence including: 1. the objective evidence; 2. the lay evidence; and 3. the expert liability evidence. 1. His Honour erred in the approach adopted and findings made regarding the following: 1. whether the appellant was at fault and the application of s 5B of the Civil Liability Act 2002; 2. contributory negligence and ss 5R and 5S of the Act; 3. causation and s 5D of the Act; 4. whether the accident was a "blameless motor accident" and ss 7A – 7F of the Motor Accidents Compensation Act 1999. 1. In respect of damages, the trial judge erred in refusing to admit into evidence the expert report of Lance Kahler, Forensic Accountant, and generally in the approach his Honour adopted to the assessment of economic loss. The accident 1. The IGA supermarket at Blackheath is located on the eastern side of the Great Western Highway about 50 metres north of the north eastern corner of Leichhardt Street. Blackheath Primary School is located on the south eastern corner of Leichhardt Street and the highway. The supermarket has a vehicular driveway entrance on its northern side that gives access to a rear parking lot, and a corresponding vehicular driveway exit on its southern side. At about 12.20pm on 15 April 2010 Ms Allen was preparing to drive her white 1995 Corolla Seca sedan out of the supermarket premises using the exit driveway where she intended to turn right at the highway and head north towards the village of Blackheath. Shortly beforehand Ms Robbie had parked her Range Rover four wheel drive motor vehicle facing north on the western side of the highway about 15 to 20 metres from the northern edge of the supermarket exit driveway alignment. 2. Ms Robbie alighted from her car with the intention of crossing the highway to purchase groceries at the supermarket. She stopped briefly near the painted white line that marked the division between the carriage way travelling north and the breakdown lane and waited for the traffic to clear. She then commenced to cross the highway in an easterly direction towards the supermarket. As Ms Robbie was crossing the highway, but before she had proceeded beyond the northbound lane, Ms Allen drove her car out of the supermarket exit turning right across the southbound traffic lane and into the northbound lane where it collided with Ms Robbie, knocking her to the ground. 3. Although several other witnesses gave evidence about these events, and because the so-called objective evidence was limited, the case before the trial judge turned largely, although not exclusively, upon a comparison of what Ms Robbie and Ms Allen said had happened. 4. Ms Robbie gave the following evidence: "Q. As you drove up to your property, did you stop somewhere? A. Yes. I stopped at Blackheath. Q. Why did you stop there? A. I stopped to buy some supplies, specifically bird seed, I think, at the IGA store. Q. Where did you park in order to go to the IGA store? A. I parked on the left-hand side of the Great Western Highway. Q. Approximately where in relation to where the IGA store is? A. Well, how do I describe it? Well, further west from the IGA store, about maybe 15 metres from the exit. Q. When you say 'west', I know it might seem like west -- A. Yeah, I know, I know. Q. -- but it's actually north-south. A. That's right. It is. Q. Do you mean north, or do you mean south? A. I mean north. Q. North. All right. A. Yeah. Q. Having parked there, do you remember what you did? A. Yeah. I got out. There was a fair bit of traffic. I remember considering – I remember it remarkably well considering I got, you know, a terrible bash on the head. I remember getting out of my car, standing beside the driver's door distinctly I would suggest for about 15, even up to 30 seconds I stood by that door waiting for the traffic to clear, and I also observed at the time that coming out of the exit from the IGA there was this little car, a little car. Q. Sorry. Beg your pardon. A. Yeah. I noticed coming out of the exit, or parked at the exit of the IGA store there was a little car, like just a little Japanese car, and -- Q. Was it moving, or was it stationary? A. It was parked. It was – actually I noticed at – when I first looked at it, it was inching forward, just moving very slowly, and I was distinctly looking at that car, and I observed what I thought were two women in the car. It turned out it was a long-haired boy, but it was a woman and her long-haired boy. But I watched them. I saw them, and she's parked, then I've – the traffic cleared, and I stepped out, just normal pace, walked across the road. Next minute bang. Q. Well, do you have any recollection of how far you got across the road? A. I would think I got about nearly halfway across the road. Q. There is a dividing line between the -- A. Yes. Q. --two, the north and southbound lanes. A. Yes. Very close to the -- Q. Compared to that, where did you get to? A . I'd say very close to the dividing line, as far as I recall, and next-- Q. Then what happened? A. Sorry? Q. What happened? A. What happened? Well, the car just came from nowhere at quite a speed. I obviously can't say how fast, but just bang, and hit me in round about the knee of my right leg, threw me up in the air, and all I – and then I came down in front of the car, couple of metres away from the front of the car, and I landed on my left-hand side, landed on my head and my shoulder and my femur, and I was lying in the middle of the road, and I remember a few people came running up, and the man from the IGA store came running out with a bottle of water, and I remember saying – I was lying there, and a big, a huge truck came up, and I just remember saying, 'Can you please get me off the road,' and that's when I think it was the off-duty fireman carried me off the road and sat me in the gutter – on the gutter. Q. Do you have any recollection of any part of you hitting the vehicle, apart from what you-- A. Well, my legs. That's all I remember. I don't know how it got a broken windscreen. I have no idea. Q. You're aware that the vehicle had a broken windscreen. A. I saw photos. I didn't know at the time it had a broken windscreen. Q. All right. At the time that the fireman came across-- A. Yeah. Q. --the person you thought was a fireman, where were you? A. Was lying on the road with a few people-- Q. Do you remember where you were on the road? A. Yeah, about – I'd say very close to the dividing line, sort of sprawled across the road and, as I said, I pleaded with them, 'Please get me off the road.' Was a very dangerous position obviously. … Q. So how long do you think you had [been] standing on the side of the road before you decided to cross? A. I would estimate between 15 to 30 seconds. Q. It may have been longer. A. It could have been. Q. Is this the position, that you at no stage observed the defendant's vehicle approaching you? A. I did a few seconds before it hit me – or a split second. Q. At that stage it had made a right-hand turn and was proceeding up the highway. A. Yes. Q. It was on its correct side of the road, was it not? A. I think it was. Q. You stepped into the side of it, did you not? A. The side of the car? Q. Yes. A. No, I did not. … Q. You say that you have seen the damage to the windscreen in a photograph and you don't understand how that could happen. A. I have absolutely no idea how that could have happened. Q. Let me suggest to you that it happened because your head hit the windscreen, on the bottom side corner of the windscreen, and broke it. A. That's not correct. Q. Do you dispute that? A. I certainly do. Q. You struck the side of the car and you fell backwards onto the road. A. I struck the front of the car. Q. Let me suggest to you that there is no damage to the front of the car and all of the damage is to the side of the car and that you walked into the side of the car and then fell backwards on the road. A. I was hit by the front-- Q. Do you dispute that? A. Totally, I do dispute that. … Q. You didn't see the car approach you and you didn't see the car before it hit you, did you? A. I repeat what I said before, and that is, I saw her a split second before she hit me. For a split second I saw her. Q. But you said to her, 'I'm sorry, I didn't see you.' A. I did not say that. Q. And you said, 'I've just come off my horse and I'm still recovering.' A. Oh, good heavens. I certainly did not say that. Certainly did not." 1. Ms Allen gave the following evidence: "Q. Did you drive in to the supermarket which had a driveway in and a driveway out? A. Yes. Q. You drove in and around the back of the supermarket? A. Yes, and I parked at the side of the supermarket. Q. You parked at the side. And when your nephew came out what happened then? A. I waited until his seat belt on and then asked him if he was right and ready for the car to start moving. … Q. What did you then do? A. I turned the car on and slowly made my way towards the edge of the driveway. Q. That was the edge of the driveway at the footpath or at the highway? A. At the edge of the driveway near the highway. Q. You were familiar with that driveway. Can you describe the topography of the driveway at that point when it exits and joins The Great Western Highway? A. There's quite a large dip between the edge of the driveway and the top of the road. Q. Was that a dip with which you were familiar? A. Yes. Q. Before you reached that dip what did you then do? A. I proceeded to stop the car to make sure that there was nobody crossing the footpath and moved a little bit further forward towards the edge of the driveway. Q. What were you intending to do? What path were you intending to take? A. I was intending to turn right. Q. Onto the Great Western Highway? A. Onto the Great Western Highway. Q. Did you do anything in relation to signalling that intention? A. I put my indicator on. Q. Which indicator? A. My right-hand. Q. Was it operating and flashing? A. Yes. Q. When you came to a halt in the way you've described, how long did you remain stationary? A. I can't be quite certain of exactly the amount of time. Possibly the length of two changes of traffic lights. Q. There were traffic lights further up The Great Western Highway to your right. Is that … A. It my right, yes. Q. You think that there may have been two changes of those lights? A. Quite possibly, yes. Q. What was the traffic like? This was at about 12 noon in the middle of the day? A. Yes. Q. What was the weather conditions like? A. Very warm and very sunny. Q. You were telling us you were stopped at the crossing and you were waiting for the traffic. Was there a lot of traffic on the Great Western Highway at that time of the day? A. Yes, there was quite a lot. Q. Was it travelling in both directions? A. Yes. Q. So I'm sorry to ask you again, but how long do you believe that you actually sat there waiting for the break in the traffic before you could turn right into the highway? A. A lengthy time. I'm not entirely sure of the exact amount of time. Probably about a minute, maybe a bit more. … Q. What did you then do when you decided to enter the highway? What did you actually do? A. I waited to make sure that there was a significantly safe gap considering I had my nephew in the car with me, and I – I pulled out when there was cars roughly up to maybe a hundred metres away coming in the west-bound lane and … Q. And in what gear were you travelling? A. First. Q. So what did you then do? A. I proceeded to slowly pull out once there was a big enough gap and … Q. And which direction did you turn? A. Right. Q. How far had you proceeded in this manoeuvre? A. Not very far at all. At most, possibly 15 metres. Q. 15 metres. A. At most. Q. Were you still in first gear at that stage? A. Yes. Q. I know it's difficult, but how fast do you think you were travelling in first gear at that stage, just making that turn? A. I would have been nowhere between maybe 15, 20, maybe. I'm sorry, I don't really know. Q. You don't really know. Where had you reached in your turn had you got completely onto the highway in making that turn? A. I had made it successfully into my lane. Q. Was the whole of your car successfully in your lane? A. Yes, it was. … Q. Were you proceeding forward? A. Yes, I was. Q. What was the next thing that happened? A. The next thing that happened was I saw a woman's face in my windscreen. Q. Did you hear anything? A. I heard a squeal as she hit the windscreen. Q. Did you see her head hit the windscreen? A. Yes I did. Q. Where was she then in relation to your car? In relation to the juxtaposition of the car and the pedestrian? A. She was between the very front corner of the car and the join of the passenger side door. Q. Near the front-- A. She – the front quarter panel. Q. Front quarter panel. After you saw her face and her head hit the windscreen, what did you next see? A. I saw her fall down beside the side of the car. Q. What did you do? A. I instantly stopped. Q. When you stopped did you see this pedestrian on the road? A. I could only see very little of her on the – sorry – next to the car. … Q. I know you're upset, but just we need to do this. Whereabouts on the road was she? A. She was close to the – sorry – close to the line for the breakdown lane. Q. Was there parked cars in that breakdown lane, as you call it? A. Yes, there was. Q. How close was she to those or that parked car? A. She was closer to the parked cars than the centre of the road. Q. Than the centre of the road. A. Yes. … Q. The next thing I want to put to you is if you had seen her at any point as you negotiated the east-bound lane at the speed you said you were travelling you could have brought the whole vehicle to a halt before hitting her. A. If I managed to be able to see her before, I wouldn't have even left the gutter. Q. Or alternatively if you had left the gutter and you had seen her the other thing you could have done was to have slowed down enough to enable her to cross sufficiently far in front of you so that you could have gone around behind her in the western lane. That's another possibility, isn't it? A. If I had seen her start to cross during my turn I would have stopped my vehicle." The experts 1. Each of the parties qualified an expert in the reconstruction and explanation of motor vehicle accidents. Mr Schnerring provided an opinion for Ms Robbie and Mr Keramidas provided an opinion for Ms Allen. 2. Mr Schnerring came to the following conclusions: "Based on the material provided for review, my inspection of the site, my specialised knowledge and experience in traffic engineering, engineering physics and accident investigation and reconstruction, I conclude Ms Robbie indicated that impact was in the centre of the road. I assumed that to be the centreline. If impact occurred on the centreline, then the car would have been in the process of turning right, rather than having completed the turn and proceeding along the highway in the traffic lane. The Police reported a pre-crash speed of 20km/h, consistent with the car making a turn rather than having completed the turn and proceeding along the lane. Assuming impact was on the centreline, Ms Robbie would have walked about 3.9 metres. Her walking speed was considered to have been about 1.4 m/sec. Her exposure time on the roadway probably would have been about 2.8 seconds. Ms Robbie was considered to be visible and conspicuous. The average perception and reaction time for drivers in the circumstance of this crash was considered to be 1.7 seconds. Calculations in this report showed that the driver very likely would have been in a position to commence evasive action when her car was about 7 to 8 metres from Ms Robbie. The speed of the car at that time was calculated to be about 20km/h to 21 km/h, based on uniform acceleration from rest at a rate of 0.2g or 0.26g. The required braking rate to stop was calculated to be about 0.21g, a reasonably gentle rate of deceleration and almost certainly well within the friction supply of the roadway and within the capabilities of the car. If the car driver did not brake before impact, then her perception and reaction time would have been in excess of 2.8 seconds; 85 percent of drivers typically respond in 2.4 seconds or less in the circumstances of a crash such as this one." 1. Mr Keramidas came to the following conclusions: "Based on the author's review of the available information, including an inspection of the site and calculations performed, the following conclusions were reached: 1. This incident took place on the Great Western Highway outside the IGA Supermarket at Blackheath, at a time when the Plaintiff [being a pedestrian] attempted to cross the highway from west to east and the Defendant [being the driver of a Toyota Corolla RV Seca] was making a turn onto the highway so as to travel north from a driveway exiting the IGA Supermarket. 2. Observed damage to the subject Toyota along with a description of damage to that vehicle indicates that the most likely impact configuration involved the pedestrian walking into the front near-side guard of that vehicle at the time of impact. 3. Based on the available material, the likely impact location longitudinally along the Great Western Highway was assessed as being near the northern 'entry' driveway to the IGA Supermarket, and at a point reported by Police as being about 66 metres north of the pedestrian crossing across the highway. 4. Based on the longitudinal position of the point of impact, the expected turning path of the vehicle entering the highway, as well as the impact configuration based on damage and injury profile, the likely lateral position of the point of impact was assessed as being 1.0 to 1.5 metres east of the edge-line separating the northbound traffic lane and parking lane on the western side of the highway. 5. While the precise motion of the pedestrian is not known, it is assumed that she was moving perpendicular across the highway at a speed consistent with an average walking speed for a person of the Plaintiff's age and gender. That speed was assessed to be about 1.4 metres per second. 6. The time it would have taken the pedestrian to reach the point of impact was calculated to be 0.7 to 1.1 seconds. 7. The expected acceleration rate for the Toyota turning onto the highway would be between 0.15g and 0.25g, resulting in an end velocity at impact of between 27 to 25 km/h and taking 4.0 to 5.0 seconds to complete. 8. Based on the relative time between the commencement of the vehicle's turning motion and the commencement of the pedestrian's crossing manoeuvre, it appears that the pedestrian has commenced her motion between 2.9 and 4.3 seconds after the vehicle commenced its turn. 9. The expected response time of a driver confronted with the circumstances which presented themselves to the Defendant in this case would be 1.9 seconds [as an average] or up to 2.6 seconds [at the 85th percentile response level]. 10. Based on the exposure time of the pedestrian and the required PRT for the driver, it is extremely unlikely that the collision could have been avoided by any actions taken by the driver, while the collision could have easily been avoided had the pedestrian been looking in the direction of the turning vehicle. 11. Having examined the report prepared by Mr Fred Schnerring of Jamieson Foley Consulting Forensic Engineers, the present author can indicate that the methodologies adopted by that author were consistent with the methodologies adopted by the present author. The most significant variation between the two relates to the point of collision across the highway. It is difficult to criticise Mr Schnerring's assessment, as it is apparent that he did not have available to him detailed information regarding the damage sustained by the Toyota, nor any version of events provided by the Defendant. There is nothing contained within Mr Schnerring's report which causes the present author to alter any of the conclusions outlined above." The judgment below 1. With the assistance of this evidence and these opinions his Honour found in favour of Ms Robbie. His process of reasoning to that conclusion is the subject of the present appeal. His Honour's judgment was relevantly in the following terms: "No doubt, at vast expense, the plaintiff and defendant have tendered detailed reports from, and called, two traffic accident reconstruction experts, Mr Schnerring and Mr Keramidas. There is no great dispute between them as to the physics and mechanics of what they were able to glean from the poor quality photographs and the various witness statements. At least they have been able to provide measured plans of the accident scene but, as in most cases, their determination of what happened, comes down to the reliability of witnesses placing marks on photos and plans well after the event. This fact also affects my determination of liability. Despite this volume of expert material, I do not see that liability is overly complicated. … In the present case, I am satisfied that Mrs Robbie exited her vehicle and was waiting for a break in the traffic. She saw Mrs Allen's vehicle at the exit of the IGA. At that time, Mrs Allen's vehicle had not entered either traffic lane of the Great Western Highway. Mrs Allen, however, had not seen Mrs Robbie waiting to cross the road. Why she did not is not explained in the evidence. Perhaps she was concentrating on gauging the break in the traffic to enable her to make her right-hand turn. In her police interview, Mrs Allen thought a contributing factor to her not seeing Mrs Robbie may possibly have been the glare from the cars parked on the other side of the road or the autumn colour of the leaves, but I doubt that. After all she had seen the Hatswells crossing the same road moments before. Mrs Robbie had entered the roadway to cross it as she was entitled to do. Mrs Allen should have observed her and been alerted to the probability that Mrs Robbie was going to cross the road in a suitable gap in the traffic. Indeed at this point in time there was no evidence that Mrs Allen was even on the roadway of the Great Western Highway. She was in a private driveway waiting to exit. If Mrs Robbie could see Mrs Allen then Mrs Allen, if she was keeping a reasonable lookout, should have been able to see Mrs Robbie, bearing in mind her awareness of pedestrians crossing the road in that area and having seen the Hatswells crossing the road immediately beforehand. Whilst Ms Allen might have been in the lane for travellers heading west, I find she had only arrived in that lane momentarily before the accident and was not in the same position of a driver who had been travelling in that lane for some time or distance. … the defendant argues that as the plaintiff did not observe the car approaching her before she stepped forward and only saw it a 'split second' before the collision, it follows as a matter of unarguable logic that she did not see the car as it approached and that she did not look to her right before she started walking. This submission elides the responsibility of the driver and what the pedestrian did or did not do, forgetting that there is an obligation on the driver as much as there is an obligation on the pedestrian and the fact that the plaintiff may have walked into the side of the car does not reverse the causative effect of the car being where it was not reasonably expected to be. It is stated that the defendant was unlikely to have been able to avoid a collision but the plaintiff, on the other hand, could easily have avoided it by simply looking in the direction of the approaching vehicle and either not stepping into the highway or alternatively simply stepping backwards out of the path of the car (c.f. Keramidas Report Exhibit 5, p.43, line 9). One could equally argue the exact opposite, which does little to resolve the responsibilities of the parties in the situation they found themselves in. In any event I find Mrs Robbie was looking in the direction of Mrs Allen's vehicle but Mrs Allen, for reasons unknown, did not see Mrs Robbie. Mrs Allen could have avoided any confrontation with the pedestrian had she waited until Mrs Robbie crossed the road as Mrs Allen said she would have done if she had seen Mrs Robbie. … However, exactly how Mrs Robbie came into contact with the vehicle is not necessarily to the point as to whether or not there is any breach of duty of care by Allen to Robbie or any contributing lack of care for herself on the part of Mrs Robbie. Regrettably there is no truly objective evidence as to the circumstances of the accident and no amount of reconstructive effort will overcome that deficit. … I have no doubt that Mrs Robbie and Mrs Allen would have been looking predominantly to their right being the lanes in which traffic was likely to impede their progress at first instance. Neither of them mentions a vehicle having just gone past in the lane closest to them from respectively their right to their left, although that must be the effect of Mrs Allen's evidence in regard to waiting for gaps in the traffic. That is that a vehicle having gone past Mrs Allen from right to left, the gap she had was to the next vehicle which was near the fish and chip shop. Mrs Allen did not see any vehicle coming from left to right at least as far as the top of the hill and that is some considerable distance from the accident scene. It seems to me that the probabilities are that Mrs Allen, aware that nothing was coming from her left, exited the driveway in the wake of a vehicle going past from right to left which may have obstructed her seeing Mrs Robbie until it was too late. She should have seen Mrs Robbie before that vehicle passed because it is highly improbable that Mrs Robbie would have still been in her car at that time and in any event, Mrs Robbie says she was out of her car when she saw Mrs Allen's car in the driveway. It also needs to be remembered that the Hatswells, having seen Mrs Robbie in her vehicle, had time to cross the road, enter the store and move to the back of the store, before the collision occurred. … Nor do I think that this is an appropriate case to enter into a treatise on the law of negligence as it has been interpreted up to the present time. The cases referred to above more than succinctly delineate the present law and the issue is to apply those principles to the present circumstances. It is also unproductive, in my view, to minutely analyse the event second by second and metre by metre factoring in what the experts have said, the various areas pointed out on the photos by many different people and the slightly differing evidence as to where particular facts were said to have occurred. To do so renders events such as this to the level almost of a scientific equation the resolution of which depends on the values attributed to each factor. Life does not happen like that and once a traumatic event has ended, the various persons memories of that event begin to become corrupted, not for dishonest reasons but simply because of the physiology of the human brain." 1. Some additional reference to other portions of his Honour's reasons is made below. Ground 1 – failed to make necessary findings of fact Ground 2 – failed to engage in a rational examination or analysis of the evidence 1. It is convenient to examine these grounds together. 2. Ms Allen contended that his Honour failed to make a series of factual findings that were central to his conclusions. They are as follows: 1. Where Ms Allen's vehicle was parked. 2. The point of impact on the roadway. 3. The point of contact with the vehicle. 4. The speed of Ms Allen's vehicle. 5. Ms Robbie's conduct before the collision. 6. Ms Robbie's failure to see Ms Allen's vehicle after it commenced to turn. 7. The dynamics of the collision. 8. Ms Robbie's secondary rest position. 9. Whether the right hand [turn] indicator of Ms Allen's vehicle was activated. 10. Damage to the vehicle. 1. Ms Allen contended that had these findings been made it would have resulted in a verdict for her as there was no breach of duty of care that was causative of the accident. 2. It is apparent from the way in which his Honour approached his task that he did not consider that the evidence was sufficient to enable him to make at least some of the findings for which Ms Allen contends. Principal among Ms Allen's contentions is that a finding that Ms Robbie was not struck head on by Ms Allen but instead collided with the passenger side of her vehicle is inconsistent with a finding of fault on her part. Ms Allen contends in several contexts that a finding to that effect would have exculpated her as it suggests that Ms Allen had driven past Ms Robbie and in effect owed her no discernible duty in such circumstances. 3. In my opinion the approach taken by his Honour was neither irrational nor erroneous. On the contrary his Honour clearly explained what he considered the evidence revealed to him and the way that it explained how the accident occurred. That approach appears to have produced the following conclusions and findings about what happened. 4. Ms Allen was preparing to drive out of the IGA store and enter the Great Western Highway turning right across the traffic heading south and into the lane of traffic heading north. She necessarily had simultaneously to negotiate breaks in the traffic in each direction to do so. In a related fashion Ms Robbie was also preparing at that time to cross from the western side of the road across the same two lanes of traffic in order to reach the eastern side. It is a fair assumption that Ms Allen was looking to her left immediately before she returned her view to the front, and hence her intended direction of travel. She entered the northbound lane as, in his Honour's words, she was entitled to do. Correspondingly it seems likely that Ms Robbie looked first to her right as she prepared to cross the northbound lane and that she turned to her left to watch for traffic coming from her left in the southbound lane as she did so. The break in the traffic in the northbound lane that induced Ms Allen to turn into it simultaneously permitted Ms Robbie to walk across it. 5. At the point when Ms Robbie stepped into the northbound lane it was clear of traffic. His Honour concluded that when she did so Ms Allen was not even on the roadway. Conversely, at the point when Ms Allen drove onto the roadway it was not clear because it was then occupied by Ms Robbie. The likelihood is that when Ms Robbie was struck she was closer to the marked line separating the lane proper from the parking bay, because she was struck by, or walked into the passenger side of, Ms Allen's vehicle. However, little turns on that in the final analysis. That is because on any version of the evidence Ms Robbie was in that lane when this occurred. 6. It is also clear that Ms Allen was looking to the front, or northwards, at the point of the collision as she gave evidence of seeing Ms Robbie's face or head as it struck the windscreen. Ms Allen undoubtedly failed to see Ms Robbie walking in her lane of traffic until that occurred. She should have seen her sooner and would have done so if she had been keeping a proper lookout. Part of the obligation that the law imposed upon Ms Allen was that she was required not only to negotiate vehicles that were or might have been in the lane of traffic into which she was proposing to drive but also pedestrians who were or might have been there as well. 7. The fact that Ms Robbie walked into the side of Ms Allen's vehicle does not exculpate Ms Allen because Ms Robbie was in her lane of traffic when this occurred and presumably looking to her left. In terms of the language of avoidability to which the experts both resorted, Ms Allen should have avoided the collision by seeing Ms Robbie in her lane of traffic moving in an easterly direction towards the centre of the road. Ms Allen should either have waited in the exit driveway until Ms Robbie had done so or stopped on the roadway to permit her to do so. 8. The putative failure of his Honour to make the findings of fact for which Ms Allen contends is not destructive of that analysis. 9. First, the point at which Ms Robbie parked her car is not critical to his conclusions. The difference in the distance between the two possible locations is no more than about three lengths of the car Ms Allen was driving. Ms Allen is likely to have been travelling in first gear, as she said she was, and at or about the same speed in either case. 10. Secondly, the point of impact on the roadway is also not critical. Accepting both that Ms Robbie collided with the side of Ms Allen's vehicle and that that occurred at some position on the northbound lane, it is not possible to say precisely where the collision occurred. Both experts accepted that there was no objective evidence from which they could identify the precise location in the road where the impact occurred. His Honour cannot therefore be criticised for failing to make a finding about it. It would have been artificial for him to have done so. Its apparent significance also recedes once it is accepted that the collision was not a front end collision. Ms Robbie insisted in her evidence that it was, but the evidence otherwise reveals that she must be wrong about that. 11. Thirdly, the point of contact was accepted by both experts to be on the passenger side of the vehicle. His Honour expressly stated that the "expert testimony tended to be to the effect that rather than Ms Allen hitting Ms Robbie, Ms Robbie walked into the side of Ms Allen's vehicle." He went on to say that the precise manner of the collision was "not necessarily to the point." His Honour did not proceed upon the basis that Ms Robbie was struck head on by the front of Ms Allen's car, a matter about which Ms Allen cannot in the circumstances complain. 12. Fourthly, the speed of Ms Allen's vehicle could not have been precisely determined. She told the police that she had been travelling at approximately 25 km/h. Her evidence at the hearing was that she was travelling at about 15 or 20 km/h although, quite significantly in the present context, she said "I don't really know." In cross-examination Ms Allen maintained that she was still in first gear and had been taught never to change from first gear until she had reached 20 km/h. Ms Allen contended that his Honour should have found that she was travelling at 20 km/h. It seems apparent that that is a fair assumption or conclusion to draw from the evidence but his Honour's failure to make a specific finding to that effect does not reliably inform or suggest that if he had made such a finding it would have produced any different result. 13. Fifthly, Ms Allen contended in this Court that the most likely circumstance is that Ms Robbie left her vehicle after Ms Allen commenced exiting the driveway at which time her attention was directed to the traffic on the road. This was posited upon the basis that Ms Robbie was on Mr Keramidas' view within 1.0 to 1.5 metres of the fog line or in other words had taken no more than a few steps when the collision occurred. Once again that contention does not accord with his Honour's conclusions. His Honour was satisfied that Ms Robbie exited her vehicle, was waiting for a break in the traffic and had seen Ms Allen's vehicle at the exit of the IGA. His Honour was also satisfied that Ms Robbie "had entered the roadway to cross it as she was entitled to do". Ms Allen's complaint that his Honour somehow failed to make a specific finding about whether Ms Robbie left her vehicle after Ms Allen commenced to leave the driveway is in these circumstances either wholly irrelevant or insignificant. The so-called failure neither derogates from his Honour's findings in general nor advances the case proposed by Ms Allen in particular. 14. Sixthly, Ms Allen submitted that a probable explanation for Ms Robbie not seeing Ms Allen's vehicle travelling northbound is that she was at that time "engaged in removing herself from [her] vehicle in order to cross the road." Ms Allen submitted that a finding to that effect "ought to have been made by the primary judge" and that his Honour "erred in failing to consider this central question." 15. The difficulties with that contention in my view are that there was no evidence to support the making of any such finding and it was not central in any event. It seems to be a logical and available conclusion, as I have earlier described, that Ms Robbie and Ms Allen each took advantage of the same break in the northbound traffic either to cross the road or drive onto it. It is unrealistic to suggest that Ms Robbie could still have been in her car when Ms Allen commenced to do so, especially given Mr Keramidas' view, and the associated evidence to support it, that Ms Robbie was well into the lane when she was struck. His Honour's so called failure to make this finding is neither surprising nor relevant. 16. Seventhly, upon my reading of his Honour's reasons, a failure by him to dissect the technical possibilities of the cause of the accident ought not to be permitted to disguise the fact that he accepted that the collision was not a head on collision but occurred when Ms Robbie came into contact with the side of Ms Allen's car. Mr Keramidas expressed the view that the evidence about this was "quite conclusive" and positively excluded even the possibility that the accident could have been a frontal impact. He said that "the most likely impact configuration involved the pedestrian walking into the front near-side guard of that vehicle at the time of impact" and Mr Schnerring did not offer a different view. There is nothing either expressly referred to by his Honour in his judgment or implicit in it that he came to any other conclusion. 17. Eighthly, Ms Allen also emphasised what she said was the importance of Ms Robbie's secondary rest position, or the position to which she was taken following the accident from where she initially came to rest on the roadway. Ms Allen contended that consideration by his Honour of the evidence about that would have permitted him to make a finding as to Ms Robbie's initial rest position and therefore the likely point of impact on the road surface. 18. Concern with this issue overstates the significance of attempting to isolate where the collision occurred with geographical certainty. What seems to be beyond doubt is that Ms Robbie was on the road surface somewhere in the northbound lane when she was struck. As such, on her case, Ms Robbie was within full view of an attentive driver travelling in her direction at approximately 20 km/h on a fine and clear day. Once again it may have been critical to make such a finding if the dispute between front end collision and side impact were alive and maintained. It is not. 19. Ninthly, the issue of whether Ms Allen had or had not activated her right turn indicator seems to me to be wholly unrelated to the determination of any significant issue with respect to Ms Allen's liability. The only evidence about this issue came from Ms Allen who said that her indicator was on. Ms Robbie did not suggest that it was not. Whatever the position, Ms Robbie stepped from the side of the road into the traffic lane. Her decision to do so does not appear to have turned upon whether or not Ms Allen's indicator had been activated. If it had not been activated it does not inform a conclusion about Ms Allen's negligence. If it had been it could only be relevant to the issue of Ms Robbie's contributory negligence. This is referred to later in these reasons. 20. Finally, there was evidence of the nature and extent of the damage to Ms Allen's vehicle. With the exception of the smashed windscreen, the damage is both minor and difficult to detect. There is no damage to the front of the car at all. His Honour said that "regrettably there is no truly objective evidence as to the circumstances of the accident." That statement has to be understood in its context. The damage to the vehicle was objective evidence. It excluded a front end collision. It was consistent with a side collision. However, the evidence of damage was inconclusive as to precisely what led to the accident or, in his Honour's words, "as to the circumstances of the accident." His Honour was presented with conclusive evidence of a side collision but it remained inconclusive on the issue of who was responsible. 21. In my opinion, none of his Honour's suggested failings is consequential. The evidence of Ms Allen and Ms Robbie is a rich source of information about the accident and an adequate collection of observations from which his Honour could arrive at his conclusions. Ms Allen has not demonstrated a connection between the nominated failures to find specific facts and an erroneous outcome. 22. Evident in the manner in which his Honour approached his task was a tacit recognition of the fact that the evidence did not all point in a single direction. It was not however suggested in this Court that there was no evidence capable of supporting a verdict in her favour. The burden of Ms Allen's submissions was that it was not possible to discern a rational or logical process of reasoning from the available evidence to a decision in favour of Ms Robbie. 23. Tellingly in my opinion, Ms Allen conceded in cross-examination that if she had seen Ms Robbie start to cross during her turn she would have stopped her vehicle. It is clear that Ms Robbie did start to cross during Ms Allen's turn but Ms Allen did not stop. It is implicit in his Honour's reasoning that he concluded that Ms Allen should have seen Ms Robbie and should have stopped. It is equally clear that his Honour was entitled to conclude that Ms Allen was at fault in the circumstances. Ground 3 – error in application of legal principles Section 5B 1. Ms Allen contended that his Honour misapplied s 5B of the Civil Liability Act because he directed his consideration of the provision not to the question of breach of duty but to the question of the existence of a duty. 2. Section 5B is in these terms: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 1. His Honour referred to the provision in the following terms: "The duty of care in s 5B(1) involves a consideration of all of the elements set out in subparagraphs (a), (b) and (c) not just some of them. From Ms Allen's point of view and knowledge, the risk was foreseeable, the risk was not insignificant and she could have taken easy precautions against the eventuation of that risk by staying where she was, off the highway. The fact that a driver is inside a metal object capable of doing serious harm to an unprotected individual places a significant onus on a driver in areas where pedestrians can be expected or should be visible. The defence (DSR 2.6) referred to the expression of the duty of care in section 5B(1)(c) of the Civil Liability Act as it was expressed in Knight v Maclean [2002] NSWCA 314, namely:- 'It is not the law that a driver complying with the minimum requirements of the law negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey.' The submission continued referring to Marion v Gardiner [2013] NSWCA 396 where Meagher JA said: 'The driver is not required to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events … the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle … Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the limits of visibility and control so as to be able to react to whatever may venture into the vehicle's path'." 1. Ms Allen submitted that: 1. the risk of a mature adult walking into the side of a moving vehicle was not foreseeable; 2. such risk was insignificant in that it was not something which a reasonable driver would ordinarily anticipate would occur; 3. a reasonable person in the appellant's position would not have taken precautions against the risk of a mature adult walking into the side of the vehicle. 1. Ms Allen also submitted that in considering the matters to be taken into account in determining whether a reasonable person would have taken precautions in accordance with s 5B(2): 1. the probability that harm would occur if precautions against the unforeseeable risk were not taken was low; 2. taking the precautions to avoid a mature adult walking into the side of a moving vehicle is burdensome in that it would require all motorists to stop and give way to adult pedestrians standing on the side of roadways. This obligation is contrary to the pedestrian's absolute duty not to cause a traffic hazard or obstruction; 3. the social utility of the activity that creates the risk of harm is the driving of registered vehicles on public roads. The utility of that activity is such that it ought not to be a breach of duty of care for a motorist to not take a precaution against the risk of an adult pedestrian walking into the side of a moving vehicle. To take the only precaution that would obviate the risk by stopping the vehicle would interfere with ordinary domestic and commercial life so as to jeopardise the orderly conduct of society. 1. Ms Allen submitted that his Honour did not apply s 5B in that way. Rather, his Honour simply referred to the matters listed in s 5B(1) and suggested that Ms Allen could have "taken easy precautions against the eventuation of that risk by staying where she was, off the highway." Ms Allen contended that that was a misapplication of s 5B and imposed an overly burdensome duty on the driver of a motor vehicle. Ms Allen contended that a reasonable person in her position would have behaved in precisely the manner in which she did. Ms Allen submitted that when she commenced her right hand turn and joined the highway it "is highly improbable" that Ms Robbie had entered upon the roadway. 2. It seems to me with respect that these submissions cannot be correct. His Honour expressly accepted Ms Robbie's account that she was out of her vehicle and standing by the road from where she observed Ms Allen's vehicle in the driveway. It is also apparent from his Honour's reasons and reasoning process that he accepted that Ms Allen left the driveway at much the same time that Ms Robbie commenced to cross the road. The underpinning proposition of Ms Allen's submissions is that Ms Robbie was instead still either in her car or at the very least standing in a stationary position beside the road. It is also an essential part of Ms Allen's attack upon the judgment that Ms Robbie did not commence to walk from the side of the road until at least Ms Allen was level with her and in that sense that Ms Robbie walked into the side of her passing vehicle. 3. I have no difficulty with the proposition that a motorist would not be required to stop or take any other evasive or precautionary action against the contingency that a stationary pedestrian beside the road might enter it. However, a proper reading of his Honour's judgment makes it clear that he considered that Ms Robbie was not stationary beside the road but had entered onto it and was in the course of walking on the road surface. As already discussed, that is clear from the available inference that both women simultaneously took advantage of the same break in the northbound traffic to make their move. Ms Robbie had walked as far into the roadway as she could get in the time it took Ms Allen to drive to the same point. 4. This is not a case of Ms Allen being entitled to ignore a stationary pedestrian beside the road but a case of her having a duty not to strike a pedestrian in her path or moving in a direction that would bring her into collision with the side of her vehicle when as the driver she had time to see her and to stop. It is clear that his Honour rejected the finding that Ms Robbie was either in her car or stationary beside the road. More importantly, it is also clear that his Honour concluded that when Ms Robbie entered onto the roadway it was clear of traffic until Ms Allen's "vehicle suddenly appeared on the roadway where a reasonable person would not have expected it to be." Once that is appreciated Ms Allen's criticisms of his Honour's approach to s 5B necessarily fall away. Contributory negligence 1. His Honour dealt in part with the issue of contributory negligence in the following terms: "…having regard to the way this case has been run, it is difficult to understand the dogmatic reliance that has been placed on Ms Allen's evidence to the exclusion of all of the other surrounding factors. As I stated earlier, the issue of fault is not to be determined by expert evidence in a case like this and even if I accept that the laws of physics have Ms Robbie walking into the side of Ms Allen's vehicle, that does not eliminate responsibility for the collision on the part of Ms Allen, whose vehicle suddenly appeared on the roadway where a reasonable person would not have expected it to be. Much was made of Ms Robbie not seeing the vehicle until the last minute, as if that was her only evidence. But that was not the case. Ms Robbie got out of her vehicle and was standing on the road waiting for a break in traffic. She saw Ms Allen's vehicle which at that time was not even on the highway, as did Ms Hatswell who had crossed the road just beforehand. Ms Allen is the one who, on her own evidence, did not see the plaintiff until split seconds before the accident. Ms Robbie was entitled in my view to expect that Ms Allen had seen her waiting to cross and would not enter the road while that was happening or enter in such a way as to avoid the risk of any collision occurring. It was her driving that in my view deprived Ms Robbie of any reasonable opportunity to get out of the way, the impact occurring according to the defence, in the middle of the westbound [sic, northbound] lane. …The difficulty I have is that I cannot see what more Ms Robbie could have done to avoid injury to herself in crossing the road. No one has disputed that she was crossing in a break in the traffic. Is she expected to act to avoid a vehicle waiting to enter the highway but not on it when she is legitimately already on the highway? In my view the answer to that question is no." 1. Ms Allen relied upon what Mr Keramidas said in his report, that the accident could have been avoided completely had Ms Robbie taken the simple and easy precaution of looking for northbound traffic before stepping onto the northbound carriageway and, having seen Ms Allen, remained stationary or stepped backwards from the road. Apart from appearing to be an attempt to breathe some life into the long dead corpse of the last opportunity rule, the submission is based entirely upon a misconception of the evidence. I entirely reject Ms Allen's (curiously phrased) submission that "[t]here was no evidence that [Ms Allen's] vehicle was not already on the highway when [Ms Robbie] commenced walking onto the road." His Honour specifically found that when Ms Robbie stepped onto the roadway "Ms Allen's vehicle … at that time was not even on the highway." 2. Once again the nature of his Honour's conclusions provides the answer. Ms Robbie was on the roadway where she was struck by Ms Allen who drove onto it shortly thereafter but failed to see Ms Robbie until the last second. Ms Robbie was entitled to be on the road and was in motion in an easterly direction. She did not contribute to her own harm. His Honour's conclusion to that effect is unexceptionable. 3. Nor is the position different if Ms Allen's turn indicator was activated. That would no doubt have informed Ms Robbie that Ms Allen was intending to turn to her right and in Ms Robbie's direction. At the point when Ms Robbie stepped from the side of the road, the prospect that Ms Allen might turn in her direction does not foreclose Ms Robbie's entitlement to do what she did. Ms Robbie's presence on the roadway undoubtedly contributed in a causative sense to what happened to her but she was not negligent in not having remained beside the road simply because Ms Allen's turn indicator presaged her intention. Causation 1. Ms Allen's submissions on this issue are a restatement of her complaints based upon the proposition that she could not have been negligent if Ms Robbie was stationary at the side of the road when Ms Allen left the driveway. It will be apparent that I do not accept that his Honour found any such thing, and in fact proceeded upon the basis that Ms Robbie was in the course of walking eastwards on the road surface of the northbound lane when she was struck. No reformulation of Ms Allen's complaints in the language of causation does anything to advance her position. Blameless motor accident 1. Although Ms Allen made lengthy submissions concerning the question of whether or not this was a blameless accident within the meaning of s 7 of the Motor Accidents Compensation Act 1999, that issue was ultimately not pressed. Ground 4 – erroneous assessment of economic loss 1. Ms Allen contended that his Honour erred in rejecting the report of Lance Kahler dated 28 April 2014. 2. Mr Kahler is a certified practising accountant and was retained by Ms Allen to express an opinion concerning Ms Robbie's claim for economic loss. That claim was based upon the assertion that at the time of the accident Ms Robbie was earning $180,000 per annum before deduction of expenses and tax. 3. Ms Robbie is a licensed real estate agent and gave evidence that she had worked in the real estate business from 1989 until the date of the accident. The business that paid her was known as Real Estate Investors Network. It was sold in June 2010, about two months after the accident. Notwithstanding that fact, the proprietor of the business, Mr Downs, continued to pay Ms Robbie substantial amounts of money and that continued up until the hearing before his Honour. Ms Robbie and Mr Downs had formerly been in a domestic relationship. 4. The business had been engaged in the sale of real estate for investment. Mr Kahler approached his task of assessing the value of Ms Robbie's economic capacity by reference to the fact that she was a real estate agent. His Honour rejected Mr Kahler's report after some evidence from him as follows: "HIS HONOUR: The reasons why I reject the report is, having regard to the answers given as to his experience of the particular type of work that the plaintiff was doing, having regard to the evidence of Mr Downs in particular and her own evidence, the only value that this report has is to deal with a possible economic loss related to the plaintiff being a real estate agent of residential properties, which is not the case. He makes assumptions in the report that there's no evidence to support the assumptions that he makes. Put to him he wasn't put into a straightjacket of assumptions. Well, he should have been put into a straightjacket of assumptions. … The report fundamentally doesn't comply even with a watered down version of Makita v Sprowles and for that reason the report is rejected." 1. Ms Allen argued that his Honour's rejection of the report was unwarranted and demonstrated error. Mr Kahler did not lack the requisite expertise to express an opinion, and his report was relevant to a fact in issue in the proceedings. His Honour's error is said to have been compounded inasmuch as he accepted that Ms Robbie was earning $180,000 from Real Estate Investors Network at the time of the accident. 2. Ms Allen submitted that his Honour's approach to the assessment of both past and future economic loss was erroneous in that: 1. it was based on the assumption that Ms Robbie was in fact earning $180,000 at the time of the accident; 2. it did not take into account the opinion of Mr Kahler that Ms Robbie had a notional earning capacity of $628.63 net per week; 3. the award of damages did not adequately reflect the fact that at the time of the accident Ms Robbie had not returned to full time work following a horse riding incident at the end of 2009; 4. his Honour did not take into account the fact that Ms Robbie had continued to receive an income from her employer and domestic partner after the accident whilst not working and that it was likely to continue. 1. In summary Ms Allen submitted that as a result of this erroneous approach to the assessment of economic loss the award of damages was manifestly excessive. Even if there were a loss of earning capacity caused by the accident, it is unlikely ever to have been productive of economic or financial loss of the order allowed by his Honour. 2. Ms Robbie contended that there was evidence before his Honour that her pre-injury earnings were $180,000 per annum before tax in the years from 2004 to 2010. His Honour accepted that evidence. He did so upon the basis that he accepted that Ms Robbie was doing work that supported the salary she received: "I accept that Ms Robbie had skills and experience that took her well outside the normal real estate sales arena. Those skills and experience were no doubt enhanced by some 12 years in that particular area of real estate sales. I accept that it required on her part a more physical and mental involvement than might otherwise be the case. Not only was she involved in sales to others but also managing investment properties of her own and Mr Downs. Whilst her income of $180,000 was 'discretionary' in one sense, I am satisfied that she was doing the work to support such a salary." 1. Ms Robbie's loss of earnings to the date of the trial was also supported by post-accident tax returns. However, his Honour reduced Ms Robbie's claim of $227,000 for past economic loss to a rounded sum of $160,000. He reduced the claim of $213,000 for future economic loss to a rounded sum of $130,000. In taking that approach his Honour considered all of the lay evidence and Ms Allen's submissions before concluding that the claimed figures should be discounted in order to take into account likely variations in income even if Ms Robbie had remained in partnership with Mr Downs and had set up the new business that had been proposed. 2. Ms Robbie also submitted that his Honour correctly rejected Mr Kahler's report. He did not have the requisite expertise to express the opinions upon which his report was founded. Mr Kahler had little understanding of what Ms Robbie did in contrast to the listing and selling activities of real estate agents in general. Mr Kahler had not been asked to make assumptions about Ms Robbie's activities or to express a view about whether or not the income she earned for the assumed work was justified. 3. Ms Robbie submitted in the alternative that even if the report had been admitted into evidence it remained open to his Honour to have rejected Mr Kahler's characterisation of what Ms Robbie's work involved. Mr Kahler had no proper knowledge or understanding of her work or of how the real estate selling model adopted by Mr Downs and Ms Robbie operated in fact. Mr Kahler's report could not have been given significant weight in any event. 4. Mr Kahler was examined in advance of his Honour's decision to exclude the report. He gave the following evidence: "Q. Mr Kahler, what's your experience in the conduct of investment selling of real estate? A. I've no specific experience in working in that industry. Q. In terms of the duties of an investment agent were you asked to make any particular assumptions about how investment agents operate as opposed to list and sell agents? A. I was not, no. Q. Were you given any material asking you to make assumptions about how the plaintiff, Ms Robbie, actually conducted her practice as an investment agent? A. Well, I had access to records such as the statement of claim, the plaintiff's statement, statement of Mr Jim Downs, so I used those documents to form – also the claim form. There was duties listed in the claim form, so I relied on those documents to form a view as to what the general duties were. Q. My question to you was were you asked to make any assumptions about how she actually conducted her practice as an investment agent? A. Not that I recall, no. Q. You weren't present when evidence was given by various people about the business model? A. No, I wasn't. Q. I take it in your practice as an accountant you've never had to review business models for people conducting practices as investment agents, for example, selling units off a plan for bodies like Meriton in bulk? A. No, I've never really, no. Q. In this report you have assumed, without being directed to, that Ms Robbie was, in effect, operating in a very similar way to a list and sell agent. You know what I mean by a list and sell agent, I suppose, do you? A. I do. Well, I've assumed that her duties were akin to those of a real estate sales person, so-- Q. Yes. A. Her main role, yes. Q. But you're not able to say what the difference between, for example, someone working in a suburban real estate office selling real estate for clients who wanted to buy or sell their houses was, on the one hand, compared to what people who were doing bulk selling of apartments off the plan for developers such as Meriton on the other? A. Only through sort of general knowledge and, I guess, on that basis, not through specific experience." 1. It is clear that, through no fault of his own, Mr Kahler had no special or particular knowledge or understanding of the enterprise in which Ms Robbie was engaged and which generated her income. Notwithstanding that fact, Mr Kahler had proffered the following opinion in his report: "2.5 In my opinion, the claims made for Past and Future Loss of Earnings are (a) grossly overstated, and (b) should be entirely disregarded. 2.6 This is because, in my opinion, the methodology adopted by the plaintiff in framing her claim for Past and Future Loss of Earnings is fundamentally flawed. 2.7 I have reached this conclusion as, in my opinion, based on the available evidence, the amounts paid to the plaintiff both prior to and after the accident appear to have had no correlation to the commercial value of the earning capacity the plaintiff was exercising either prior to or after the accident. Rather, I am of the opinion that the amounts paid to the plaintiff both prior to and after the accident were likely amounts paid at the discretion of Jim Downs who controlled the relevant businesses. 2.8 For example, based on the various particulars provided by the plaintiff, it appears that prior to the accident she worked an average of 20 hours per week in the property investment advisory and sales business and her role in the business was most akin to that of a Real Estate Salesperson. In my opinion, a salary of $180,000 before tax per annum far exceeds the commercial value of the services the plaintiff was providing to the business controlled by her domestic partner, Jim Downs. In this regard, I note that, based on the available average weekly earnings statistics, I have estimated the commercial value of the plaintiff's earning capacity as a Real Estate Salesperson working 20 hours per week to be in the vicinity of $36,000 before tax per annum. 2.9 Further, it appears that Mr Downs sold the property investment advisory and sales business to a former employee of the business (and/or that employee's associates) in or around June 2010 (i.e. approximately two months after the accident) and moved to Darwin. Accordingly, I query whether Mr Downs would have had the capacity to continue to pay the plaintiff a salary of $180,000 before tax per annum in any event. ASSESSMENT OF ECONOMIC LOSS 2.10 I have not attempted to quantify the lump sum Past and/or Future Economic Loss amounts suffered by the plaintiff because I am of the view that, based on the available evidence, there must be some doubt as to whether, and for how long, the plaintiff would have continued to work as a Real Estate Salesperson subsequent to June 2010, regardless of the accident. 2.11 In this regard, I note that: 2.11.1 The plaintiff was almost 64 years of age at the date of the accident. 2.11.2 In or around June 2010 (i.e. approximately two months post-accident), it appears that the plaintiff's domestic partner, Jim Downs, sold the property investment advisory and sales business that the plaintiff had previously worked for to a former employee of the business (and/or that employee's associate). 2.11.3 Thereafter, Mr Downs relocated to Darwin to pursue real estate sales activities in that location. 2.12 Accordingly, in my view it is a matter for the Court to determine if, and for how long, the plaintiff would have continued to work as a Real Estate Salesperson, but for the injuries sustained in the accident. 2.13 Based on the available statistical data, I estimated the commercial value of the services provided by the plaintiff prior to the accident as a Real Estate Salesperson working an average of 20 hours per week to be $628.63 after tax per week. 2.14 In absence of specific evidence that indicates the commercial value of the services provided by the plaintiff to Mr Downs' property investment advisory and sales business prior to the accident exceeded the aforementioned amount, I am of the opinion that the most appropriate measure of the plaintiff's past and/or future economic loss is a notional earning capacity of $628.63 after tax per week less any residual earning capacity, for whatever period the Court determines the plaintiff would have continued to work, but for the accident." 1. It is unsurprising that his Honour rejected the report. Mr Kahler's opinion was based upon an unfounded assumption, amounting to speculation, that Ms Robbie was overpaid for the work she performed or, in other words, that it was not a reflection of her actual pre-injury earning capacity. His opinion, based on that assumption, was therefore that any comparison or estimation of her post-accident losses could not be based on what she had earned, even notwithstanding that Ms Robbie had declared the sum of $180,000 as income in the several years preceding the accident. 2. Mr Kahler had neither the expertise to express his opinion nor any supporting evidence upon which to base it. He clearly did not satisfy the prerequisites for expressing an expert opinion as one drawn from specialised knowledge based upon his training, study or experience. His obvious expertise as an accountant was entirely beside the point. His Honour made no error by rejecting the report. 3. His Honour closely analysed the evidence concerning the nature and extent of Ms Robbie's injuries and disabilities following the accident. His conclusions were predicated upon the following findings: "At the time of the accident, Mrs Robbie was, I am satisfied, earning from REIN a salary of $180,000 per annum before deduction of expenses and tax. Her job was to find real estate properties which fitted financial advice and financial structures which had been set up or recommended by Mr Downs and herself, and to conduct the sale of those properties to the investors. This often involved taking prospective investors to building sites to show them where the apartment of interest was located and to enable them to get an idea of any views or other features that might affect the value of the investment. This required her to negotiate rough construction areas and stairs. Mrs Robbie had injured herself in a horse-riding accident in November 2009, and before the motor vehicle accident, she had not returned to full-time work, although the nature of the job that she had was not one where she worked set business hours in the office. However, by the time of the car accident, she said she had recovered to the stage where she could carry out 80% of the duties and responsibilities of the position she had been working in before the horse-riding accident. Mrs Robbie suffered fractures of the pelvis in apparently attempting to get on the horse, and the sequelae were still affecting her as at the date of the car accident to a degree. However I would accept that but for the car accident, there does not appear to be any reason why Mrs Robbie would not have been able to resume her full duties with REIN. … Since the accident on 15 April 2010, Mrs Robbie claims she has since been physically incapacitated by virtue of her orthopaedic injuries and traumatic brain injury for her employment for which she was suited by her age, education and experience. While she has remained an employee of REIN and has continued to be paid a salary, she has not been able to provide the services to REIN she had provided pre-injury in that she no longer has the capacity to scramble around building sites. However she continued to hold the real estate licence. Due to restructuring of the company and Mr Downs moving into alternate endeavours in Darwin and Southport, the funds available to pay Mrs Robbie have dwindled. Mr Downs says that he will continue to pay her something depending on the availability of funds from their previous enterprises. They remain close friends but no longer live as a couple. But for the accident, Mrs Robbie says that she would have continued to work in her pre-injury employment because she needed to. The claim is until her 70th birthday. … The plaintiff claims a loss of $2,335.24 net per week (equivalent to $180,000 gross per annum) from 1 April 2014 to date, and continuing until her 70th birthday [in May 2016]." 1. I am not satisfied that Ms Allen has demonstrated that his Honour made any error in his calculation of Ms Robbie's economic loss. Ms Allen's submission that his Honour's assessment is manifestly excessive appears to be predicated upon the unfounded concern that her pre-accident earnings were not a genuine reflection of her earning capacity. That is the same unfounded and erroneous assumption that confounded Mr Kahler's report and it would appear similarly to have infected Ms Allen's submission. It was open to his Honour, recognising the discretionary nature of his task, and the artificiality of attempting to produce arithmetical or mathematical certainty in his calculations, to assess Ms Robbie's loss by the adoption of a lump sum apparently reflecting her loss of earning capacity. Ms Allen has not suggested that his Honour acted upon a wrong principle or that he allowed extraneous or irrelevant matters to guide or affect him. Nor has it been suggested that his Honour has somehow mistaken the facts, or that he has either failed to take account of some material consideration or has taken account of an irrelevant matter. 2. I am satisfied that his Honour was entitled to approach the question of Ms Robbie's economic loss in the way that he has. He fell into no error in doing so. Conclusion and orders 1. It follows in my opinion that the appeal should be dismissed with costs. ********** 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: 25 August 2015