Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Maureen Townsend v Phillip O'Donnell [2016] NSWCA 288 Hearing dates: 6 October 2016 Decision date: 19 October 2016 Before: Beazley ACJ at [1] McColl JA at [2] Sackville AJA at [3] Decision: 1. Appeal dismissed 2. The appellant pay the respondent's costs of the appeal Catchwords: TORTS – contributory negligence – collision between motor vehicle leaving driveway and motorcycle driven by postman – breach of duty by driver of motor vehicle conceded – whether primary Judge erred in finding no contributory negligence – whether primary Judge erred in findings as to the motor vehicle's speed and the postman keeping a proper lookout DAMAGES – whether primary Judge erred in assessing damages for future economic loss – whether primary Judge applied the principles stated in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) ss 81, 126, 138 Civil Liability Act 2002 (NSW) ss 3B(2),5B, 5R, 5S, 55 Cases Cited: Amoud v Al Batat [2009] NSWCA 333 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51; 83 ALJR 34 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Manley v Alexander [2005] HCA 79; 80 ALJR 413 Mead v Kerney [2012] NSWCA 215 Nominal Defendant v Livaja [2011] NSWCA 121 O'Donnell v Townsend (Unrep, 17 December 2015, District Court) Tran v Nominal Defendant [2011] NSWCA 220; 58 MVR 462 Warren v Gittoes [2009] NSWCA 24 Williams v Commissioner for Road Transport and Tramways (New South Wales) (1933) 50 CLR 258; [1933] HCA 33 Category: Principal judgment Parties: Maureen Townsend (Appellant) Phillip O'Donnell (Respondent) Representation: Counsel: R.R. Bartlett SC (Appellant) R. McIlwaine SC (Respondent) R.E. Quickenden Solicitors: Moray & Agnew (Appellant) Peninsula Law (Respondent) File Number(s): 2016/5906 Decision under appeal Court or tribunal: District Court of New South Wales Citation: O'Donnell v Townsend (Unrep, 17 December 2015, District Court) Date of Decision: 17 December 2015 Before: Olsson DCJ File Number(s): 2012/373319 [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. BEAZLEY ACJ: I have had the advantage of reading in draft the reasons of Sackville AJA. I agree with his Honour's reasons and proposed orders. 2. McCOLL JA: I agree with Sackville AJA. 3. SACKVILLE AJA: The respondent brought proceedings in the District Court against the appellant claiming damages for personal injuries the respondent sustained in a motor vehicle accident that occurred on 5 August 2010. The primary Judge (Olsson DCJ) gave judgment for the respondent in the sum of $1,480,982.55. [1] This sum included $496,204.00 for future economic loss. 4. The background to the respondent's claim was succinctly described by the primary Judge as follows: [2] "The plaintiff was a postman employed by Australia Post. He was undertaking his regular round of postal deliveries on 5 August 2010. He was riding an Australia Post motorbike in Panorama Terrace Green Point at about 10 am. There is no bitumen or formed footpath in Panorama Terrace (or at least, that section of Panorama Terrace). In order to effect his deliveries it was necessary for him to travel on the nature strip. As he approached the letterbox of number 43, his bike was struck by a Mitsubishi Pajero 4WD vehicle driven by the defendant who was reversing down the driveway of her home. It was a steep driveway with a curve in it. The plaintiff was thrown from his bike and landed heavily on the roadway, the right hand side of his body taking the force of the impact. He sustained injuries which included a full thickness tear of the right supra spinatus and muscular ligamentous injury to his right shoulder and an injury to the L3/4 intervertebral disc. He underwent five operations between June 2011 and February 2014 as a result. The plaintiff returned to work on light duties but that employment was terminated by notice dated 24 July 2015 sent to him just prior to the commencement of this hearing. The defendant admitted that she owed a duty of care and admitted the breach of duty and the injury but not the nature and extent nor the loss and damage alleged. She pleaded contributory negligence pursuant to s 138 Motor [Accidents] Compensation Act 1999 (NSW) (MACA) and ss. 5R and 55 of the Civil Liability Act 2002 (NSW). A s.81 MACA notice was served alleging 30% contributory negligence." 1. The primary Judge found that there was no contributory negligence by the respondent. [3] Accordingly, her Honour rejected the appellant's contention that the respondent's award of damages should be reduced by reason of his contributory negligence. 2. The award of damages for future economic loss was based on the primary Judge's finding that the respondent had no residual earning capacity. Thus, in assessing damages for future economic loss, her Honour made the usual reduction of 15 per cent to allow for the vicissitudes of life and made no further allowance for the possibility that the respondent might be able to obtain remunerative employment in the future. 3. The appellant challenges the primary Judge's finding that the respondent was not contributorily negligent. The appellant contends that her Honour should have found that: * the appellant's vehicle was travelling immediately before the collision at about 10 kph and not (as her Honour found) [4] at 15-25 kph (Grounds 1 and 2(a)); and * the respondent was guilty of contributory negligence because he failed to keep a proper lookout to ensure that it was safe to proceed across the driveway (Grounds 1 and 2(b)). 1. The appellant challenges the primary Judge's award of damages for future economic loss on the ground that her Honour failed to apply the principles laid down by the High Court in Malec v JC Hutton Pty Ltd. [5] The appellant submits that the primary Judge should have assessed damages by considering the degree of probability that the respondent would be able to obtain remunerative employment in the future, but that her Honour did not do so. Instead she simply found on the balance of probabilities that the respondent had no residual earning capacity. The accident 1. The following account is based on the primary Judge's findings, including evidence of the respondent accepted by her Honour. The account is largely non-contentious. 2. At the time of the accident, the respondent was riding a 2007 Honda CT 110 Australia Post motorcycle. The motorcycle had two side bags which, when full, weighed about 12.5kgs each. The respondent had commenced his delivery round at about 9.15 am. By 10.00 am he had completed about a quarter of the deliveries. 3. Just before the accident, the respondent delivered mail to No. 45 Panorama Terrace, [6] the neighbouring property to the north of No 43. The respondent then proceeded in a southerly direction along the grass nature strip toward the driveway to No 43, there being no "formal footpath." [7] 4. Number 43 had a carport, in front of which was a paved area. The respondent kept a boat parked in the carport. Two large Otto garbage bins were located at the edge of the paved area, close to the roadway. 5. The driveway to No 43 was next to the carport. The driveway curved steeply up a hill towards the house. There were steps on the left hand side of the driveway, also leading towards the house. Mr Griffiths, whose expert report was tendered on behalf of the respondent, said that the gradient of the driveway was 35 per cent. Mr Griffiths regarded that gradient as significantly steeper than the maximum usually permitted by local government authorities. 6. The letter box of No 43 was on the right hand side of the driveway (to the south) and was built into the retaining wall on the boundary of the appellant's property. The respondent, in order to reach the letter box, first had to traverse the paved area in front of the carport and then the concrete driveway between the boundary of the appellant's property and the roadway. 7. The respondent steered the motorcycle "as wide as [he] could" along a path just inside the garbage bins. This meant that he followed a path close to the roadway. His next "target" was the post box for No 43. At this point, the respondent was travelling at about 10 kph. 8. The respondent first saw the Pajero when the front tyre of his motorcycle was on the driveway (the rear wheel still being on the pavement in front of the car port). The respondent said that the Pajero was "coming at speed" [8] and that he tried to "power" hit the motorcycle out of the driveway. [9] 9. The respondent's attempt to avoid a collision failed. The Pajero struck the left hand side of the motorcycle towards the "middle of the back". [10] The respondent was thrown onto the road and landed on his back, thereby sustaining his injuries. Photographic evidence and a sketch 1. There were two sets of photographs in evidence. One set, comprising rather poor quality black and white photographs, was taken by a representative of Australia Post who attended the scene about half an hour after the accident occurred. These photographs showed that the vehicles collided at a point on the driveway, quite close to the roadway. The photographs also showed the location of the garbage bins at the time of the accident. 2. The second set comprised coloured photographs of the scene taken by Mr Griffiths on 25 March 2013. Of course these did not show the vehicles, but the photographs depicted the layout of the nature strip, the carport and the driveway. There was no suggestion that the configuration of the site had changed significantly since the accident. 3. Mr Griffiths' report reproduced a rough sketch of the scene prepared on the day of the accident for the purposes of Australia Post. Although very rough, the sketch assists in visualising the layout of the scene: The Legislation Contributory negligence 1. Section 3B(2) of the Civil Liability Act 2002 (NSW) (CL Act) provides that Divisions 1-4 and 8 of Part 1A, including ss 5B, 5R and 5S apply to motor accidents. Those sections provide as follows: "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. … 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. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated." 1. Section 138 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) relevantly provides as follows: "(1) 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. … (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage. … (6) This section does not exclude any other ground on which a finding of contributory negligence may be made." Future Economic Loss 1. Section 126 of the MAC Act provides as follows: "(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." Primary Judgment Contributory Negligence 1. The primary Judge noted that the appellant admitted that she had breached her duty of care. [11] The appellant acknowledged in the evidence that she was looking in the mirror outside the driver's door because she was trying to avoid the steps to the left of the driveway. [12] The appellant accepted that she had not looked at either the passenger's side mirror or the rear vision mirror as she reversed down the driveway. [13] Nor did the appellant stop the Pajero until she felt it impact with the motorcycle. [14] 2. The primary Judge made the following findings: [15] 142 "I find that the [respondent] was travelling lawfully on the nature strip between numbers 41 and 43 Panorama Drive Green Point at or about 10 kilometres per hour which was an appropriate and legal speed. I find that his attention was appropriately directed towards the letterbox of number 43 but that he was also obliged to negotiate two Otto bins which were placed on the paved area immediately adjacent to the [appellant's] driveway. I find that the rear wheel of his motorbike was still on the paved area when he observed the [appellant] reversing her four wheel drive vehicle down her driveway at a speed which was faster than the speed that he was travelling and probably between 15 and 25 kilometres per hour. I find that the [respondent] had only a moment to make a decision about whether to brake or accelerate. The decision had to take into account the weight of the saddle bags with the weight of the bike (its momentum, in other words) and the power of the bike. His actions were reasonable and appropriate in the circumstances. 143 I accept the [respondent's] evidence that the [appellant] was proceeding at speed down her driveway and considerably faster than the speed at which he was travelling. He was unshaken in this evidence and it accords with the contemporaneous comment made in the accident report. Against it, the [appellant] could not remember or estimate her speed, saying only that it was slow. On balance, I prefer the evidence of the [respondent]. 144. I am satisfied on the balance of probabilities that he paid reasonable attention to all that was happening on and near the nature strip and roadway that may have presented a source of danger. I am satisfied that he gave simultaneous attention to a number of different features that were or might be ahead and in the path of his vehicle. Reasonable care, however, is just that – reasonable. The law does not impose a standard of perfection. 145. I find that the accident was caused by the manner and speed at which the [appellant] reversed her vehicle down a steep and curved driveway. I find that the [respondent's] actions were not causative of the accident and the standard of care exercised by the [respondent] in all of the circumstances was reasonable. Therefore I find that there was no contributory negligence by him." (Emphasis in original). Future Economic Loss 1. The primary Judge found that the respondent resumed work on light duties within two months of the accident. Initially he worked for three days per week, for three hours a day. By May 2011, he increased his time at work to four hours on each of three days. [16] However, the respondent required surgery in June 2011, and did not return to work until February 2014, because he was either recovering from surgery or undergoing rehabilitation. 2. The respondent returned to light duties in February 2015. His duties included sorting mail and peeling stickers off sleeves to apply to envelopes. [17] During this period, the respondent worked four days per week for four hours each day, but he gave evidence that the repetitive work caused him significant pain. As has been noted, Australia Post terminated his employment shortly before the trial. 3. The primary Judge found that the respondent had an exemplary work history and that if he could find work, he would take up the opportunity. [18] Her Honour said that the next question was whether any employment would be available to the respondent, having regard to his physical condition, age (50 at the date of the trial) and limited employment skills. [19] 4. Her Honour was faced with competing vocational assessments tendered by each party. One report by Dr Pryor suggested that the respondent might be able to obtain employment in occupations not requiring heavy lifting. However, her Honour considered that Dr Pryor's report was unpersuasive, in part because the author failed to consider the respondent's physical limitations and his need for further surgery. [20] 5. The primary Judge preferred the view of the respondent's vocational psychologist, Mr Martin, who had prepared a report in March 2015, based on assessments that took place in March 2013 and November 2014. Mr Martin concluded that the respondent's prospects for alternative employment in the open labour market were "extremely poor". [21] 6. The primary Judge addressed the respondent's claim for future economic loss as follows: [22] 222. "Objectively the [respondent] is now 50 years old. All of his past employment has had a significant physical component and now he has significant physical limitations that restrict what he can lift and how long he can sit and walk. He has rudimentary computer skills and found the office duties that Australia Post was able to provide for him to be unsatisfying and boring. He is likely to require further surgery to his shoulder which is major and which will necessitate a further lengthy period of recuperation and rehabilitation. 223. It is likely given his work ethic and its importance to his sense of self-worth, that he will try to get a job and he may succeed but it also seems highly likely to me that any such job will be casual or of short given the limitations noted by Mr Martin. Moreover, it will be interrupted by the need for further treatment. 224. In Nominal Defendant v Livaja [2011] NSWCA 121 at [65] the Court of Appeal said: Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation. 225. On balance I am satisfied that the [respondent] has no residual earning capacity. The parties agreed that immediately before the accident Mr O'Donnell was earning $957.00 net. S. 126 [of the MAC Act] requires the court to make an adjustment (by reference to a percentage possibility) that the events concerned might have occurred but for the injury." 226. The parties agreed that a usual and appropriate figure for reduction to reflect the vicissitudes of life is 15% and I adopt that figure. ... 228. I find that the [respondent] would have worked another approximately 17.33 years until age 67. His net earnings at date of injury were $957.00. The multiplier for 17.33 years is 610. Thus (957 x 610) – 15% is $496,204.00 and I award that sum. (Emphasis in original). Reasoning: Contributory Negligence The Pajero's speed 1. The primary Judge's finding that the appellant reversed the Pajero down the driveway at a speed between 15 and 25 kilometres an hour was based on her acceptance of the respondent's evidence. Her Honour noted that the respondent had been cross-examined in close detail about the circumstances of the accident but was unshaken in his evidence. [23] The transcript of his cross-examination shows that the respondent constantly maintained that the Pajero was travelling "at speed" immediately before impact and he adhered to his estimate that the vehicle was moving at 15 kph, significantly faster than his own speed of 10 kph. 2. The primary Judge also took into account the terms of the Incident Report Form filled in on the day of the accident and signed by the respondent. The report described the accident as follows: "Car reversed out of Driveway at speed unable to get out of way Dived of [sic] bike on the road." 1. The report noted the factors contributing to the accident as "Poor visibility, boat in carport, car reversing at speed". Her Honour observed that the report constituted the respondent's almost contemporaneous record of the event, and was consistent with his oral evidence. [24] 2. The appellant did not directly contradict the respondent's estimate of the speed at which she was reversing down the driveway. In her evidence in chief, the only references to speed came in the following exchange: "Q. As you backed down the driveway how would you describe your reversing speed? A. Slow [25] … Q. You mentioned you were driving slowly. Did you change speed as you reversed down the driveway to your recollection? A. No." [26] 1. The appellant's counsel chose not to pursue the issue of speed any further. Thus the appellant was not asked whether she disagreed with the estimate of speed the respondent had already given in his evidence. 2. In the cross-examination, the appellant failed to clarify her reference to a "slow" speed, as shown by this exchange [27] : "Q. You've told us that you slowly came down the driveway, correct? A. Yes Q. But you didn't tell us what speed you were travelling down the driveway did you? A. No. Q. You don't know what speed you were travelling down the driveway? A. Just slowly. Q. What do you say is a slow speed? A. I don't know." 1. Mr Bartlett SC, who appeared for the appellant, accepted that on the basis of the evidence given by the respondent and the appellant, it was well open to her Honour to find that the Pajero was travelling at 15 kph to 25 kph immediately before the collision. He submitted, however, that her Honour should have taken into account the expert report of Mr Griffiths which, so he argued, cast doubt on the respondent's evidence. Mr Griffiths was not required for cross-examination. 2. There are three difficulties with this submission. The first is that as Mr Bartlett accepted, it was not put to the primary Judge that Mr Griffiths' report contained material that was inconsistent with the respondent's estimate of the Pajero's speed. Indeed, so far as the transcript reveals, no submission was made to the primary Judge on the appellant's behalf that the respondent's estimate of speed should not be accepted. It is hardly a legitimate basis for criticism of a Judge that he or she has not taken into account evidence that neither party suggested was relevant to the particular factual issue in dispute. 3. Secondly, Mr Griffiths' report did not address the accuracy of the respondent's estimate of the speed the Pajero was travelling. Mr Griffiths was aware of the respondent's claim that the Pajero was approaching the motorcycle too fast to stop and included in his report as a possible "scenario" that the Pajero was "initially travelling very fast" and was unable to avoid the collision. It is true that Mr Griffiths "deduced" from the rest positions of the Pajero and the motorcycle as depicted in the black and white photographs that both vehicles were "nearly stopped at the time of impact". However, the report does not explain why Mr Griffiths found that view and does not suggest that his deduction was inconsistent with the respondent's claim that the Pajero was travelling too fast to stop. 4. Mr Griffiths expressly acknowledged that his report had necessarily been prepared without the benefit of findings based on the evidence given at the trial. Since he was not required for cross-examination, he did not address the significance of the appellant's evidence that she did not see the motorcycle before the impact and did not change speed as she reversed down the driveway. Nor did Mr Griffiths address the significance, if any, of the respondent's evidence that the Pajero stopped within a foot or eighteen inches after impact. It is therefore a matter of speculation as to whether these matters would have caused Mr Griffiths to change his opinion that the circumstances were consistent with the Pajero travelling too fast to avoid a collision or that the vehicles had nearly stopped when the collision occurred. 5. Thirdly, passages in Mr Griffith's report relied on by Mr Bartlett as inconsistent with the primary Judge's finding are equivocal as to the speed the Pajero was travelling prior to impact. For example, in one passage relied on by Mr Bartlett, Mr Griffiths considered the significance of the fact that the collision occurred close to the end of the driveway, near the roadway. Mr Griffiths concluded that the location of the collision indicated that the accident occurred either because the Pajero was travelling too fast or the appellant responded too slowly, or both. This conclusion is consistent with the respondent's evidence and with the primary Judge's findings. 6. The primary Judge's finding as to the speed the Pajero was travelling was based in part upon her Honour's assessment of the respondent's credibility. Mr Bartlett did not identify evidence that was directly inconsistent with the respondent's estimate of speed, much less that her Honour's finding was glaringly improbable or contrary to compelling inferences. [28] I reject the challenge to the primary Judge's finding as to the speed the Pajero was travelling. Failure to keep a proper lookout 1. In assessing the appellant's contentions that the primary Judge should have found that the respondent was contributorily negligent because he did not keep a proper lookout, a number of matters need to be borne in mind. 2. First, the appellant did not submit that the primary Judge failed to apply the correct legal principles. Her Honour referred to ss 5B, 5R and 5S of the CL Act and clearly bore those provisions in mind. Her Honour also referred to the observations of the majority of the High Court in Manley v Alexander, [29] where their Honours pointed out that: "recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path." 1. Secondly, the primary Judge found that the respondent paid reasonable attention to all that was happening that might have presented a source of danger to him. [30] The respondent was lawfully on the nature strip (a matter not in dispute), travelled at an appropriate speed and gave simultaneous attention to a number of different features that were in his path. Furthermore, the respondent took a path that took him away from the point at which the driveway emerged from the appellant's premises. On his account, he was prevented from going onto the roadway itself by the gutter that was in place between the nature strip and the roadway. 2. Thirdly, the appellant bore the burden of proof on the issue of contributory negligence. [31] The onus was on her to establish that the respondent failed to exercise the standard of care that would have been exercised by a reasonable person in his position. A proper lookout 1. Mr Bartlett relied on the respondent's evidence as to when he first saw the Pajero reversing down the driveway to support the contention that the respondent failed to keep a proper lookout as he proceeded towards the letter box. The respondent said that he first saw the Pajero just after his motorcycle had passed the Otto bins at the roadside end of the paved area. He said that at that point the rear wheel of the motorcycle was still on the paved area, while the front wheel had reached the appellant's driveway. The respondent saw the Pajero "out of the left-hand side of [his] eye" [32] because he was not looking straight up the driveway, but towards the letter box. 2. Mr Bartlett submitted that the respondent's evidence showed that he could have seen the Pajero earlier, had he been keeping a proper lookout. Had he kept a proper lookout, he would have had sufficient time to avoid the collision even though the appellant could not see the motorcycle and could not stop in time. This justified, so Mr Bartlett submitted, findings that the respondent did not exercise reasonable care for his own safety and that his failure to do so contributed to the accident. 3. This submission is rather at odds with the thrust of the cross-examination of the respondent at the trial. Although it was put to the respondent that he had failed to keep a proper lookout (which he denied), the questioning was primarily directed towards demonstrating that the respondent had sufficient time, after he saw the Pajero reversing down the driveway, to take evasive action. Indeed, at one point the cross-examiner put to the respondent that he had five seconds to avoid a collision. The appellant's counsel pursued the point in final submissions, contending that the respondent was contributorily negligent because he should not have attempted to avoid a collision by increasing his own speed. This contention, however, has not been maintained on the appeal. 4. Mr Bartlett attempted to extrapolate from the photographs in evidence an estimate of the time that was available to the respondent between him noticing the Pajero and the vehicles colliding. On the assumption that the front wheel of the motorcycle was on the driveway when the respondent first saw the Pajero, Mr Bartlett interpreted the photographs to indicate that he would have only have had one second or so to take evasive action. This submission effectively invited the Court, without the benefit of expert evidence, to interpret indistinct copies of black and white photographs to deduce the distance between points that were not themselves identified with any precision. 5. While there may be some circumstances in which photographs can be used to estimate approximate distances, [33] great care must be taken in interpreting photographic evidence. This is particularly the case where there is no evidence as to the precise position of the camera when the photographs were taken and the photographs themselves are indistinct. [34] To accept Mr Bartlett's invitation would require impermissible speculation. 6. In any event, there is a more fundamental difficulty confronting Mr Bartlett's submission. He did not direct the Court's attention to any evidence that would have enabled the primary Judge to determine when the respondent should first have observed the reversing Pajero. To resolve that issue, her Honour would have had to take into account the likely position of the Pajero on the driveway (having regard to the speed it was travelling), the respondent's line of sight towards the driveway as he approached along the nature strip, the presence of structures or objects (such as the boat parked in the carport) that might have obscured or impaired the respondent's view of the Pajero and the path that the respondent followed (which went close to the Otto bins, near the roadway). Nor was there evidence demonstrating that, had the respondent exercised reasonable care, he should have seen the reversing vehicle in time to avoid a collision. A resolution of that issue would have to take into account the primary Judge's finding that the Pajero was travelling at a minimum of 15 kph down a very steep driveway. 7. It is possible that the appellant could have profitably explored these issues at the trial, but this did not happen. As I have noted, the appellant bore the burden of establishing that the respondent had been contributorily negligent. In the absence of evidence on the issues I have identified, in my view the appellant has not shown that the primary Judge erred in failing to find that the respondent did not keep a proper lookout or that he failed to exercise reasonable care for his own safety. Reasoning: Future Economic Loss 1. Mr Bartlett's challenge to the primary Judge's award of damages for future economic loss essentially rested on what he said was an inconsistency between two findings made by her Honour. The first was the finding that the respondent would be likely to try to obtain a job and that "he may succeed", but that any such job would be highly likely to be casual or short term and interrupted by the need for further treatment. [35] Her Honour was also satisfied "on balance" that the respondent had no residual earning capacity. [36] 2. The inconsistency, so Mr Bartlett argued, showed that her Honour failed to apply the principles stated in Malec v JC Hutton Pty Ltd: [37] "…questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the courts will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability." 1. Mr Bartlett submitted that instead of assessing the degree of probability that the respondent might be able to exploit his residual earning capacity in the labour market, limited as that capacity might be, her Honour had concluded on the balance of probabilities that the respondent had no residual earning capacity. This, he contended, was an error. 2. If the primary Judge reasoned in the manner Mr Bartlett attributed to her, she would have committed an error of law. However, I do not think that this is a fair reading of the judgment. 3. The primary Judge quoted s 126 of the MAC Act, which she was required to apply. She found, in accordance with s 126(1), that but for the injury, the respondent would have continued his employment with Australia Post until his retirement at age 67. Her Honour clearly appreciated that s 126(1) is concerned with baseline earning capacity, not a plaintiff's earning capacity taking into account his or her accident-related injury. [38] 4. Her Honour then had to make a "practical assessment" of the respondent's residual earning capacity, having regard not only to his impaired physical ability and limited employment-related skills, but the realities of the labour market. Her Honour also appreciated this, as shown by her citation of Nominal Defendant v Livaja. [39] 5. The primary Judge preferred Mr Martin's assessment of the respondent's employment prospects and earning capacity over that of Dr Pryor. Mr Martin noted that the respondent had not demonstrated a capacity to work "on the open labour market" since he sustained multiple injuries in the accident. In his report, Mr Martin undertook a detailed analysis of the respondent's injuries, work history, very limited literary levels and transferrable work skills and also took into account employment opportunities in any reasonable accessible labour market. 6. Mr Martin expressed his opinion in slightly different language at various points in the report, but held out little prospect that the respondent would be able to secure employment in the future. Mr Martin opined that the respondent's "ability to adapt to alternate employment on the open market…is considered to be very poor" and stated that the respondent "is…not currently employable on the open labour market". Mr Martin also said that the respondent "has no realistic prospects of returning to the open labour market because of his injuries and disabilities" and that the respondent "has no earning capacity in the foreseeable future". The primary Judge referred at length to Mr Martin's reasoning and conclusions. 7. Her Honour acknowledged that the respondent would try to obtain a job, but thought it "highly likely" that any such position would be casual and would, in any event, be interrupted by the need for further treatment. In concluding "on balance" that the respondent had no residual earning capacity, I do not interpret her Honour as reaching this conclusion on the balance of probability. While the expression "on balance" is perhaps inapt, I think it is a reference to her Honour's assessment of the evidence, rather than to a standard of proof. 8. I construe the judgment as incorporating a conclusion that, in view of Mr Martin's assessment of the respondent's lack of residual earning capacity, no adjustment was required to the usual 15 per cent discount allowed for the vicissitudes of life. In her Honour's view, the possibility that the respondent might earn small amounts in intermittent, casual employment did not require any adjustment to the usual discount. 9. Mr Bartlett pointed out that at one point in Mr Martin's report, he introduced the phrase "on the balance of probabilities". However, elsewhere in the report, Mr Martin's conclusions were expressed unequivocally and without reference to any legal standards. I do not consider this as a reason to interpret the primary Judge's analysis otherwise as I have explained. 10. For these reasons, I do not think the primary Judge erred in her assessment of future economic loss. Orders 1. The appeal should be dismissed. The appellant should pay the respondent's costs of the appeal. ************ Endnotes 1. O'Donnell v Townsend (Unrep, 17 December 2015, District Court) (Primary Judgment). 2. Primary Judge at [2]-[5]. The plaintiff was the present respondent and the defendant was the present appellant. 3. Primary Judgment at [145]. 4. Primary Judgment at [142]. 5. (1990) 169 CLR 638; [1990] HCA 20 at 642-643 (Deane, Gaudron and McHugh JJ). 6. The primary Judge, reflecting an error made by counsel at the trial, incorrectly referred to No 45 as No 41. Nothing turns on the error. 7. Primary Judgment at [26]. 8. Black 72. 9. Black 74. 10. Black 20. 11. Primary Judgment at [125]. 12. Primary Judgment at [70]. 13. Primary Judgment at [71]. 14. Primary Judgment at [72]. 15. Primary Judgment at [142]-[145]. 16. Primary Judgment at [43]. 17. Primary Judgment at [51]. 18. Primary Judgment at [206]. 19. Primary Judgment at [207]. 20. Primary Judgment at [217], [220]. 21. Primary Judgment at [207], [221]. 22. Primary Judgment at [222]-[228]. 23. Primary Judgment at [36]. 24. Primary Judgment at [41], [142]. 25. Black 124 26. Black 125 27. Black 133 28. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] (Gleeson CJ, Gummow and Kirby JJ). 29. [2005] HCA 79; 80 ALJR 413 at [11] (Gummow, Kirby and Hayne JJ). 30. Primary Judgment at [142], [144]. 31. Williams v Commissioner for Road Transport and Tramways (New South Wales) (1933) 50 CLR 258; [1933] HCA 33, at 264 (Dixon J, Evatt and McTiernan JJ agreeing); Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34, at [18] (McHugh J). 32. Black 72. 33. Warren v Gittoes [2009] NSWCA 24 at [3] (Hodgson JA). 34. See Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51; (2008) 83 ALJR 34 at [16]-[18] per curiam; Warren v Gittoes [2009] NSWCA 24 at [54]-[55] (Tobias JA, Hodgson JA and MacFarlan JA agreeing); Tran v Nominal Defendant [2011] NSWCA 220; 58 MVR 462 at [172] (McColl JA, Campbell JA and Sackville AJA agreeing). 35. Primary Judgment at [223], reproduced at [31] above. 36. Primary Judgment at [225], also reproduced at [31] above. 37. (1990) 169 CLR 638; [1990] HCA 20 at 643 (Deane, Gaudron and McHugh JJ). 38. As shown by the citation in the primary judgment at [199] of Amoud v Al Batat [2009] NSWCA 333 at [23] (Basten JA, Allsop P and Ipp JA agreeing). 39. [2011] NSWCA 121 at [65] per curiam cited in the Primary Judgment at [224], reproduced at [31] above. See also Mead v Kerney [2012] NSWCA 215 at [18] (MacFarlan JA, McColl JA and Sackville AJA agreeing). 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: 19 October 2016