District Court New South Wales Medium Neutral Citation: Rachel Margaret Dunn v CIC Allianz Australia Insurance Limited [2017] NSWDC 203 Hearing dates: 1 – 3 August 2017 Decision date: 09 August 2017 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and judgment for the plaintiff. For Orders see [142] Catchwords: Tort; personal injury; contributory negligence Legislation Cited: Civil Liability Act 2002 Law Reform Miscellaneous Provisions Act 1946 Motor Accidents Compensation Act 1999 Cases Cited: Allen v Tobias (1958) 98 CLR 367 Container Terminals Australia Limited v Huseyin [2008] NSWCA 320 Fontin v Katapodis [1962] HCA 63 Fox v Percy (2003) 214 CLR 118 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Jones v Dunkel (1959) 101 CLR 298 Mason v Demasi [2009] NSWCA 227 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Miller v Galderisi [2009] NSWCA 353 Nominal Defendant v Bacon [2014] NSWCA 275 Podrebersek v Australian Iron and Steel [1985] HCA 34 Ruddock v Taylor (2005) 222 CLR 612 State of New South Wales v Riley [2003] 57 NSWLR 496 T & X Company Pty Ltd v Chivas [2014] NSWCA 235 Category: Principal judgment Parties: Rachelle Margaret Dunn (Plaintiff) CIC Allianz Australia Insurance Limited (Defendant) Representation: Counsel: C Hart (Plaintiff) J Guihot (Defendant) Solicitors: Slater & Gordon Lawyers Moray & Agnew File Number(s): 16/225828 Publication restriction: Nil Judgment The plaintiff's claim 1. The plaintiff claims damages for personal injuries she suffered in an incident in the early hours of the morning of 19 July 2015. She was a passenger in a taxi cab, driven by Mr Damon Goff, who subsequently died in February 2017. 2. The plaintiff alleges that she was injured when alighting from the said taxi cab outside premises in Toormina. As she was alighting, the plaintiff alleges that the vehicle suddenly accelerated, as a consequence of which, she fell and suffered severe injuries. 3. The plaintiff's claim is brought in negligence, the particulars of which are that the driver of the taxi: "(a) Failed to wait until the plaintiff had alighted from the taxi cab before he drove away; (b) Failed to warn the plaintiff that he was about to drive away as she was alighting from the taxi cab; (c) Failed to keep a proper lookout; (d) Drove at an excessive speed in the circumstances; (e) Failed to ensure that the plaintiff had alighted from the taxi cab before he drove away." 1. The defendant had filed a defence in which he denied negligence, but further pleaded that the plaintiff's injuries were suffered as a result wholly or partly of her own contributory negligence, particulars of which were as follows: "(a) Alighting from the defendant's vehicle whilst it was moving; (b) Failure to warn the defendant of her intention to alight the defendant's taxi; (c) Alighting from the defendant's vehicle whilst the engine was running and the vehicle was in motion." 1. The defendant also pleaded reliance upon Sections 5F, 5G, 5H and 5I of the Civil Liability Act 2002 ("CLA") (as amended). He pleaded that at the time of the accident the plaintiff was, or ought to have been, aware of the obvious risk of her actions in jumping from a moving vehicle. 2. The circumstances in which the plaintiff was injured were very much in issue in the proceedings. As a preliminary issue, I allowed the defendant to adduce into evidence a statement by the deceased defendant made on 12 November 2015, which became Ex 4. Issues to be determined 1. The following issues are to be determined: 1. Was the plaintiff injured as a result of the driver's breach of duty of care? 2. If so, is the plaintiff guilty of contributory negligence? 3. If so, what is the portion of liability for which the plaintiff bears responsibility? 4. The plaintiff is not entitled to damages for non-economic loss. Therefore the damages, if any, to which the plaintiff is entitled, are to be assessed for: 1. Out of pocket expenses; 2. Future treatment expenses. 3. Past gratuitous attendant care pursuant to s 141B of the Motor Accidents Compensation Act 1999 ("MACA"); 4. Paid commercial future domestic care and assistance; 5. Future economic loss or loss or earning capacity. Plaintiff's evidence 1. The plaintiff gave evidence that she was in 2015 a single mother with two children, a daughter born in 2010, and a son born in 2012. She gave evidence that in 2009 she had been assaulted by a taxi driver on the Gold Coast at night. She subsequently moved to Coffs Harbour, and in July 2015 had enrolled in a TAFE course, Certificate III in Business and Medical Administration. 2. The plaintiff gave evidence that on 18 July 2015, she attended a house warming party at Coffs Harbour. She arranged for her estranged partner to look after their two children, and was driven to the party by a friend. She took with her a six pack of pre-mixed bourbon drinks, which she consumed before midnight. During the night, her friend had left the party, and the plaintiff remained until approximately 5am, when a taxi was called to take her home. 3. When the taxi arrived, the plaintiff got in the rear passenger seat, behind the driver. During the trip through Coffs Harbour, she fell asleep. She was awoken by the taxi driver outside her home. She gave evidence that she saw that the taxi fare was in excess of $80. She then gave the following evidence: "Q. And what did you do then? A. I opened the door. Q. Why did you do that? A. So I could see in my purse to see, to get my money. Q. How was the purse on your body? A. It was over one shoulder so it was around my shoulder and to the side. Q. It was over her right shoulder down to her left side your Honour, and why were you looking in your purse? A. To get the money to pay for the Taxi. Q. And what was in your purse? A. I had my wallet my phone, so I've taken my phone out and put it on the seat next to me so I could get my wallet. Q. And then what did you see in your wallet? A. I didn't have enough money, I couldn't find my key card, because I was originally going to pay on my key card and I didn't have enough money, I only had a $50 note. Q. And then did you have a conversation with him about payment of the fare? A. Yeah, so first I handed him the $50. Q. And what did he say, if anything, to you? A. He said, that's not enough and then I said that I didn't have the right amount of money and he would have to come back at another date either tomorrow or the next day or I'd bring it to the taxi rank. Q. Did you provide him any other information about yourself? A. I gave him my drivers licence so he knew where I lived, so he knew that was my address. … Q. Yes, and then what did he say or do then next? A. He said that was - he wanted me to take the money to his house and I said no, and I said I can drop it to the Taxi rank or I could - you could come pick it back up from this address. Q. And what did he do or say then? A. He said no he was going to call the police. Q. All right, now at that time did you hear him make a telephone call? A. Yes. Q. And were you still in the taxi then? A. No, then I turned myself to the side because I was adamant I wasn't going to the police station with him. Q. By the way, did he give you back your ID? A. Yes. Q. Then what happened? Just describe it slowly to his Honour. A. And then once he gave that back, he said he was going to take me to the police station and I said, "No, I'm not going to the police station. I didn't pay this money. I'm going to have to pay it anyway." So‑‑ I'd already given him the money – the $50 and I said that I was going to pay it. I didn't want to go to the police station and have to get a lift back because I knew I wouldn't be able to get a lift back and‑‑ … Q. Did you have money in your bank account on that day that would have been able to pay it from your key card? A. Yes, definitely. … Q. Now, was the light still on in the cab at that time? A. Yes. Q. Now, tell the Court slowly as best you can remembering what happened next. A. So then I heard the - I went to go step onto my left foot to get out of the taxi and I heard the engine rev and the car moved forward and I fell on - I don't know how I fell, on my left hand to try and stop myself from getting hurt as‑‑ … Q. ‑‑happened to you. A. ‑‑the car has moved forward whilst I was half out of the taxi and then I've fallen onto my left side of my body and I hurt my left side of my face and my hand and my leg." 1. The plaintiff then gave evidence that she saw the vehicle do a u-turn, turnaround, and she hobbled off the road as best she could. She said "I thought he was going to run over me so I had to get out of the way. That's what I thought". The driver said to her 'You're an idiot. That's what you get", and he drove off. 2. The plaintiff gave evidence that she felt traumatised and scared at that point of time. She was in a lot of pain in her leg and her estranged partner was really reluctant to help her. Eventually, the plaintiff's mother was contacted and after approximately 40 minutes, she arrived. By that time the plaintiff had realised her phone was missing. Her mother rang the phone and a police officer answered. 3. The plaintiff gave this evidence: "Q. Then what happened? A. And then the police told us that - mum said that, "She has a broken leg and she needs to go to the hospital." And the police officer instructed us not to move, absolutely not, until he gets there to speak to us." 1. The plaintiff waited until the police arrived. She gave this evidence: Q. So do you remember what happened next? A. The police officer told me that he had spoken to the taxi driver and that I was stupid for jumping out of a taxi, and that he was going to charge me if I didn't go and pay for my taxi fare as soon as I could. Q. By that stage, how were you feeling, physically? A. Distressed. I was in really bad agony, and I just wanted to go to the hospital. … Q. Did you tell him your version of what happened? A. No, he didn't ask me. He was set in that I jumped out of a taxi and that was it; he didn't ask (me anything). Q. How long were they with you? A. May be about 40 minutes. Q. Did you notice him taking any notes or anything during the course of that? A. No, they didn't take any notes. Q. Did you speak at all to the female officer, or did she speak to you? A. Once the male officer had walked out of the room, she told me to go seek legal advice because it wasn't fair." 1. The plaintiff gave evidence that her mother then took her to Coffs Harbour Hospital, where she was first assessed by a triage nurse. She had been given painkillers and her left leg was put in a half-cast plaster. She arrived at the hospital at 7.30am and in addition to her injured left ankle, she had suffered injuries to her face, photographs of which were tendered and became Exs B and C. By the time the plaintiff saw a doctor at the hospital that afternoon, she was tired, had not been to sleep and was in "so much pain". She gave evidence that her mother spoke to the doctor. 2. The plaintiff was discharged from hospital on crutches. Her left leg was in a half-cast for two weeks, a full-cast for six weeks, and a CAM boot for six weeks. During that time, her mother had to help her with all of her household chores, and looking after her two children. Leaving aside what her mother did for the children, during the first three months, she cleaned cooked, helped bathe the plaintiff and drove her to doctors' appointments, the hospital and to TAFE. She also did the shopping, washing and hanging the clothes on the line. She would arrive about 7am in the morning and stay until 7.30pm. When asked what proportion of her mother's time was spent doing things only for the plaintiff, as opposed to helping her with her children, the plaintiff answered: "A: It was just she had to be there for both of us all the time. So she was supporting me the whole time as she was supporting the kids, so I needed her as much as the kids needed her, so she was helping us both. She was there to support me that whole time as well." 1. The plaintiff gave evidence that when the CAM boot was removed, she felt her leg was weak and she was afraid of hurting it again. Upon walking, she felt pain in her ankle and she sought physiotherapy treatment, however, the insurer refused to pay for it. It was recommended that she have 20 sessions of hydrotherapy, which she could not afford and the insurer refused to pay for. 2. In addition to the household chores, prior to the accident, the plaintiff mowed the lawn at her home. After the accident, her mother tried to mow the lawns, but a neighbour, who had a lawn mowing business, offered to do it. He mowed the lawns every two to three weeks for $70. 3. In 2015, the plaintiff completed her TAFE course, however, she gave evidence that her injury had an impact on how she performed in that course. In April 2016, she found work at the Coffs Harbour Yacht Club, but gave evidence that standing on her feet for too long caused her pain in her ankle. She therefore worked four to five hour shifts, whereas other employees did eight hour shifts. She also favoured her left leg by putting weight on her right foot at work, which gave her pain in the back. 4. In the last 12 months prior to hearing, the plaintiff had entered into a new relationship. She described suffering ongoing pain in her ankle, mostly after standing on her feet all day. When asked what she did to manage that condition, she gave evidence that she took magnesium and Nurofen. She spent $5 per week on Nurofen and $30 per month on magnesium. 5. The plaintiff gave evidence that managing her domestic situation inside the house was easier with her new partner helping her, and he also did the lawns and any heavy lifting and vacuuming stairs. The plaintiff estimated that her partner spent 10-12 hours each week doing household chores that she used to do herself. Outside the house he spent two to three hours every two to three weeks mowing and "whipper snipping'. 6. The plaintiff also described suffering migraine headaches following the accident. She had never suffered those before and went to the hospital where she had a CAT scan. She still had headaches when she had a stressful day at work. They occurred once or twice per week. 7. The plaintiff also described anxiety she now suffered on public transport and that she avoided travelling by taxi. 8. The plaintiff also gave evidence that a domestic cleaner could carry out the tasks that her partner was doing for her in approximately three hours per week at a cost of $25 - $30 per hour. 9. In cross-examination, the plaintiff agreed that the total taxi fare came to $84.75. She agreed that when she handed the driver a $50 note he said to her, "You need to pay another $34.75". She did not agree that she said "That's all I've got. I didn't know it would come to that". The defendant's case was put to the plaintiff as follows: "Q. I want to suggest to you that you said to him, "No, I'm a sole parent with two young children, I can't pay any more." That's what you said to him, wasn't it? A. No. Q. That was true, however, that you were a single parent, with two young children, wasn't it? A. Yes, but those weren't my words. Q. I want to suggest to you that the driver then said could he come back later in the day to get the rest. A. No. Q. You then said, "No, there's no one else I can get the money off." A. No, not correct. Q. I want to suggest to you that the driver then said, "In that case, I need to take you to the police station to have the matter sorted out." That's what he said, wasn't it? A. Yes, that's what he said. Q. When he said that, I want to suggest to you, that the vehicle commenced to move off from where it had come to a stop outside your home. Do you agree with that? A. No. Q. When he moving off, it got to a point where he was travelling somewhere about ten to 15 kilometres an hour. Do you remember it reaching a speed of that magnitude? A. No. Q. I want to suggest to you that, at that point, you opened the door and it was at that point you jumped out of the taxi and landed on the roadway. A. Absolutely not. Q. In other words, just so it's clear what I'm putting to you, is that it was only after the taxi moved off that you opened the door and it was only after you'd opened the door after the taxi had moved off, that you moved out of the taxi. That's right, isn't it? A. No, it's not. … Q. You did tell his Honour earlier that after you found yourself on the roadway you rose to your feet? A. To one foot, yes, and I hopped. Q. Well, I think your words were hobbled? A. Hobble; yeah, hop, hobble. Q. Well, did you-- A. Well, I couldn't put any pressure down on my foot, so no I didn't use it. Q. Well, you walked in that fashion heading towards your residence; that's right, isn't it? Whether it was a hop or hobble or whatever. A. Yes. Q. You do recall the taxi driver saying to you "That was a stupid thing to do"? A. Yes." 1. The plaintiff gave evidence that her mother told her that the police demanded that she not go to hospital until they had arrived at her home. She agreed that the police officer gave her phone back to her and was asked: "Q: He also asked you how you came, or claimed to be injured? A: Absolutely not. Q: Do you say he didn't ask you on any occasion how come you're lyiong there with your foot up? A: He already knew. He had come in and said he had thought that had happened and told me that's what had happened, and I just want to argue with him. I wanted to go the hospital, so I just didn't say anything to him. Q: You not only were asked for a version, you gave a very specific version as to how you came to be injured, to the police officer, didn't you? A: No." 1. The plaintiff denied that she told the police officer that she was unable to pay for the taxi. She could not recall telling the police that the driver was rude and abusive towards her, and she denied telling the police that being taken to the police station caused her fear as she had been sexually assaulted by a taxi driver in Queensland in the past. The plaintiff denied jumping out of the taxi for that reason. When it was put to her that she did not tell the police anything about being in a stationary taxi with the door open and her feet on the roadway, she answered: "A: The police never asked me what had happened." 1. The plaintiff also denied telling the police that the taxi had driven towards her from about five metres or so away, causing her to be fearful that she was going to be run over. 2. The plaintiff denied telling Dr Maw that she had jumped out of a moving taxi. She said her mother gave that account to the doctor in her presence. She agreed that she did not make any effort to correct any information that her mother may have told the doctor as to how she came to be injured. She also denied telling the doctor that she jumped out of a moving taxi because she was "dumb and intoxicated". 3. The plaintiff agreed that some three to four weeks after the incident she told the police officer that the door to the taxi was open, that she had her feet out of the door and on the ground, that the driver had stated he was going to take her to Coffs Harbour Police Station, and that it was at that moment that the vehicle started to move. Prior to that, she had never been asked for a statement. She agreed that she did not tell the police that the car was driven towards her after the incident, such that she feared she was going to be run over. She was then asked: "Q: And that's because it simply didn't happen, did it? A: Yes, it did happen." 1. The plaintiff agreed that she had not reported it earlier as she wanted to speak to her solicitor first. 2. The plaintiff agreed that she was receiving a single parent pension at the time she commenced her employment at the Coffs Harbour Yacht Club. She agreed that there was a limit on the number of hours that she could work in paid employment before the amount of that benefit was reduced. She did not know what that limit was. She did not agree that she had to tailor her work hours to fit in with her children's day time commitments. 3. Counsel also challenged the plaintiff on her evidence as to the amount of domestic assistance she had required. In respect of her evidence that her present partner assisted her 10-12 hours per week, she said that he did cooking, cleaning, vacuuming, taking the garbage out, mowing lawns and whipper snipping. She denied that she was able to do all of those things herself. 4. Finally, the plaintiff was cross-examined again about the circumstances in which he was injured. She said she had both feet resting on the roadway whilst the taxi driver made a phone call to the police, which lasted for two minutes. She agreed that before that conversation concluded, she was aware of a possibility that the driver might require her to go to the police station. Further, that's what the driver told her. She denied that the driver said, "Well, I've been told to take you to the police station". It was put to her that she was intoxicated on the evening. She agreed she had been drinking, but was not intoxicated at 5am in the morning. 5. The plaintiff was asked about what occurred in these terms: "Q. And can I suggest to you that what prompted you to move from your seated position to get out of the position where you'd been for at least the two minutes while the conversation occurred was when you heard something about the engine. Do you agree with that? A. When I went to step on my foot and then I heard the engine rev and drive out. As soon as he said you're going to the police station, I said no. That's when I went to get out." There was no re-examination. Evidence of Ms Wendy Dunn 1. The plaintiff's mother gave evidence that she received a phone call in the early hours of the morning on 19 July 2015, and went to her daughter's home. She observed the plaintiff to be at the bottom of stairs in the basement of the property "crying and hurt". The plaintiff's ex-partner, Simon, was also present. Mrs Dunn carried the plaintiff up the stairs. She was told the plaintiff's phone was missing, so she rang her daughter's phone number and a policeman answered. She told the policeman that the plaintiff had been hurt and she had to take her to hospital, and was told that the plaintiff was going to have to stay there and wait until the police arrived. 2. Mrs Dunn was stressed by the presence of the plaintiff's ex-partner, and the plaintiff. When the police arrived, the male police officer said: "You jumped out of a taxi; that's a silly thing to have done." 1. Mrs Dunn gave evidence that she told the police officer that she would pay the outstanding fare. She did not observe either of the police officers to take any notes. As they were leaving, the female officer told her that she could take the plaintiff to the hospital, and they left straight away. 2. Mrs Dunn gave evidence that the plaintiff was in a lot of pain and "hysterics". She was given painkillers, and waited for four to five hours to see a doctor. She was asked: "Q: Did you ever speak to the doctors about the situation? A: They said, 'What did you do?', and I just didn't know; I said the policeman said she jumped out of a taxi. That's all I know." 1. Mrs Dunn gave evidence of helping the plaintiff whilst she was in a plaster cast and moon boot from 7am until the children were in bed. She did all of the household chores and looked after the children. She also helped mow the lawn, which she hated doing, and a neighbour offered to help. 2. She gave evidence that since the plaintiff had commenced work, she had complained of pain after being on her feet. She described the plaintiff's new partner as "a blessing". 3. Mrs Dunn was cross-examined about the circumstances in which the police arrived at her daughter's home on the day of the incident. They were there for half an hour or so. It was suggested to her that the police officer asked the plaintiff to tell him what had happened, however, Mrs Dunn answered: "I actually can't remember." 1. She did recall the plaintiff saying to the police officer that the taxi driver was rude and abusive towards her, and she also heard the plaintiff tell the police officer that the driver was going to take her to Coffs Harbour Police Station. She also recalled the plaintiff telling police, in her presence, that when the driver told her that, it caused her to be fearful. She did not recall the plaintiff saying to police that she jumped out of the taxi. 2. Mrs Dunn gave evidence that she told police that she would pay the balance of the fare owing. 3. Mrs Dunn gave evidence that she could only have told the doctors what the police had told her. She herself could not have given any description of how the plaintiff came to land on the roadway. 4. It was put to Mrs Dunn that most of the time she was assisting the plaintiff she was devoted to caring for her grandchildren. She answered: "A: I was caring for her too because I had to drive her places, do the shopping for her, just caring things like her stuff." 1. She agreed that the plaintiff was able to do more and more things for herself once the CAM boot came off. When asked whether by the end of 2015 the plaintiff was able to do most of the things that needed to be done, she answered, "Yes, she did her best". 2. In re-examination, Mrs Dunn gave evidence that the work she did looking after her grandchildren and the work that she did for the house and for the plaintiff, were all mixed up, in terms of what she had to do. Evidence relied on by the defendant 1. The defendant called Senior Constable Peter Risby, who attended at the plaintiff's home in the early hours of the morning on 19 July 2015. He had commenced his shift at 6am, and shortly thereafter, spoke to the taxi driver, Mr Goff, at Coffs Harbour Police Station. Mr Goff handed him a mobile phone, and a short time later when it rang, he answered it, and spoke to a lady. He recorded Mr Goff's details in his official police notebook. His notebook was tendered as Ex 3 and it contained the following entry, in addition to the details of the driver and the plaintiff: "Taxi; car 7 $84.70 Paid $50 POI; Rachelle jumped out on Mirroll left behind phone in car." 1. When he attended the plaintiff's premises in Toormina, Senior Constable Risby said he had a discussion with all three persons in the room in relation to the outstanding cab fare. He gave evidence that the plaintiff informed him that she didn't have the money to pay the fare at the time, and her ex-partner and mother both stated that they would pay the fare. He received advice from the taxi company the next day that the fare had been paid. He made no entries in his notebook about any of those matters. 2. Senior Constable Risby agreed that three to four weeks later he received some emails stating that the plaintiff was trying to contact him, requesting an Event number. He was asked: "Q: Did Ms Dunn say anything to you on that occasion about how the incident had occurred? A: Ms Dunn just went over the same version as she'd given me before, just with a little bit more detail involved in relation to the incident." 1. The police COPS entry was tendered over objection, and became Ex 2. Senior Constable Risby had created the narrative contained in Ex 2 on 8 October 2015, nearly three months following the incident. The computer entry was created after he had spoken to the plaintiff. The narrative contained the following: "About 3-4 weeks later police were contacted by the P/N requesting an Event number for the incident as she had spoken to a solicitor and was seeking compensation against the taxi service. At this time the P/N stated to police that she offered the driver to fix it up at a later time but the driver refused. She again stated that the VIC/DRV was aggressive and abusive and that she was feeling scared and intimidated. The P/N states that as this conversation was taking place that she had the door open and that she had her feet out the door and on the ground. Again the P/N stated that the VIC/DRV stated that he was taking her to the Coffs Harbour police station. At this time she was feeling afraid and has attempted to exit the taxi. The P/N states that the driver had seen her trying to exit the vehicle and has driven off to try and prevent this, causing her to fall over and injure her ankle. Police asked P/N why she didn't report this at the time and the P/N stated that she was in pain and just wanted to get to the hospital. Police asked her why she didn't report it later that day or over the next week, and she replied that she wished to speak with her solicitor first. Police told her that there was no Event as it was sorted out civilly and no complaint was received and that the police would be happy to explain that to her solicitor. Police also informed the P/N that if a statement was obtained that it would be of the incident." 1. The narrative referred to the author speaking with "supervisors and prosecutors" and went on to state: "The P/N version has also slightly changed as she has given more detail later on. The P/N states this is because she was in pain on the day and was only concerned with getting to the hospital." 1. In his evidence in chief, Senior Constable Risby was asked: "Q: Did you ask Ms Dunn to give an account of what she said had happened? A: I did, yes." 1. Although counsel said he would come back to that evidence, Senior Constable Risby gave no further evidence about what the plaintiff said at her home on the day of the incident. Rather, the defendant relied on the narrative, Ex 2. 2. In cross-examination, Senior Constable Risby said he wrote in his police notebook (Ex 3) the word "jumped" because that was the word Mr Goff had used. He was told that the plaintiff jumped out of the taxi and Mr Goff saw her limping off the road. He also told Senior Constable Risby that the plaintiff was intoxicated when she got out of the taxi as well. When asked whether that conversation was something he should have put in his notebook, with the benefit of hindsight, he answered, "I could have recorded the entire conversation I had with him at the time, yes". 3. Senior Constable Risby did not recall that it was the plaintiff's mother he spoke to on the phone at the police station. He did not recall being told that the plaintiff had suffered an injury and that her mother wished to take her to the hospital. He denied saying to the plaintiff's mother, "No, you wait there. I'm going to bring the phone over. Wait there until I get there", by saying: "No, I wouldn't have said that." 1. Senior Constable Risby said the purpose for visiting the plaintiff was to investigate the matter and speak to her and find out what had occurred. He believed the plaintiff lived in a single-storey house and that when he spoke to her she was lying on a lounge with her foot on the armrest. He denied saying to the plaintiff when he arrived, words to the effect, that he had spoken to the taxi driver, that the plaintiff was stupid for jumping out of a taxi, and that he was going to charge her if she didn't pay the fare as soon as she could. He gave the following evidence: "A: I would have said something along the lines of 'I'm here to investigate an allegation in relation to you failing to pay for the taxi fare, and I would have got her version of what she believed, and spoke any further before I put the allegation to her of what the taxi driver had informed me." 1. He agreed there was no entry in his notebook to that effect. 2. Senior Constable Risby agreed that it was clear that the plaintiff needed to go to the hospital, and he believed that he offered to get an ambulance to check on her, which she refused. 3. Senior Constable Risby had no recollection of the plaintiff suffering facial injuries and could not recall the injuries demonstrated in Exs B and C. After stating that he offered the plaintiff an ambulance, he was asked: "Q. And at that point isn't it the case that this became more than a traffic ticket issue? This became in effect a person that on all the information you had had at least suffered a fairly major injury possibly requiring hospitalisation after jumping out of a cab. Correct? A. She never stated how the injury occurred. Q. No. Just answer my question. A. I did. … Q. By this stage you knew she had an injury serious enough for you to offer her an ambulance. Correct? A. That's correct. Q. And it's no longer a traffic ticket issue then, is it? It's an issue of a person suffering a personal injury jumping out of a taxi. Correct? A. Well, as I said, sir, she never disclosed how she got the injury. Q. At that time. A. At that time. That's correct." 1. Senior Constable Risby gave evidence that he received two emails asking him to contact the plaintiff, three to four weeks later. In a phone conversation, she gave him her version of what happened, but he denied that that was for the first time. 2. After speaking to the plaintiff, he spoke to the prosecutors and his supervisor, and created the narrative contained in Ex 2 on 8 October 2015. It was put to Senior Constable Risby that he was, in effect, trying to reconstruct what he remembered from what had occurred on 19 July 2015. He answered: "A. The first part of it is, yes, where I speak about what Mr Goff and what Ms Dunn state, yes. The second conversation that I had with Ms Dunn and paragraph where it says that I spoke to the victim and informed him that she wished to make a report about the matter, that was from that day I believe." 1. He agreed that there was no reference to Senior Constable Durham in the narrative. 2. In re-examination, Senior Constable Risby gave evidence that the narrative accurately recorded the conversations that he held with Mr Goff and the plaintiff. Statement of Mr Damon Goff (deceased) 1. As outlined above, the defendant was given leave to adduce into evidence the statement of Mr Goff made on 12 November 2015 (Ex 4). It relevantly contained the following: "I drove to near Toormina shopping plaza and I stopped the cab. Turned around to speak to the passenger for directions and she was sound asleep. I kept talking to her to wake her up and when she finally responded she said "33 Mirrool Crescent". I then drove to near opposite Mirroola Crescent and the passenger said "Pullover here". I stopped the cab on the opposite side of the roadway to where her residence was. I tallied up the fare which came to $84.75. The passenger handed me a fifty dollar note. I said 'I need another $34.75'. She said 'That is all I have got I didn't know it would come to that much'. I then said 'Can anyone else on the premises pay the remainder?' She said 'No I am a sole parent with two young children, I can't pay anymore'. I then said 'Could I come back later in the day to get the remaining balance when you get it from someone else?' She said 'No there is no else I can the money off'. I said 'In that case I need to take you to the police station to have the matter sorted out'. I commenced to drive away with the passenger in the back seat, the interior light was not on so I knew the back door was shut as if the door is only slightly open the interior light comes on, and further a light lights up on the computer on the dash board. I drove away slowly and I would have reached a speed of about 10 to 15 kilometres an hour when the interior light came on. I commenced to slow down and I heard a thud noise on the roadway. I stopped my cab, put it in park at the side of the roadway, I got out of the cab and saw the door was wide open and the female passenger walking towards Nyah Place which runs along the side of 33 Mirrool Crescent. I saw that she was limping. I yelled out to the female passenger 'That was a stupid bloody thing to do wasn't it?'. I drove away in my cab to go to the Coffs Harbour Police Station and on the way I heard a mobile phone ringing on the back seat. I checked the phone, I did not answer the phone. I then got another job and after completing that run I went to the Coffs Harbour Police. Before going to the Police Station I was informed by an operator that the lady was making threats towards them and me. At the Police Station I spoke to Constable Risby who took a verb report from me into his notebook. He informed me that the event number was E61770883. I handed the mobile phone to the Constable and I saw him answer a call on it and after he got off the phone he informed me that the caller was the passenger's mother. He also informed that he was taking the phone back to Rachelle and her mother and he was going to inform her to pay the balance of the fare by Monday afternoon or otherwise she would be given a $500.00 fine for evading a taxi fare. I know that the balance was paid into the office of the taxi company and I was given the money to square off my books." Other relevant evidence 1. The plaintiff tendered a bank pass sheet for a Visa debit card which demonstrated she had sufficient funds in her account to pay for the taxi fare on 19 July 2015. 2. The defendant tendered notes from the Coffs Harbour Health Campus which included the following entries: (1) Triage COF at 7.36am on 19 July 2015 Triage presenting information: "Fall out of slow moving car. Hit side of head on gravel road and grazed left hand and twisted left ankle. Nil LOC taken disprin x 2 at homr. Swelling left lateral malleolus and unable to weight bear. Nil other bony tenderness." (2) Dr Andrew Maw at 12.13pm on 19 July 2015 – Progress Note "26 year old woman presents with left ankle injury HX: About 5.30am jumped out of a moving taxi, unsure how fast was going but possibly 40 kilometres per hour. Unsure how she landed but landed on concrete, hit her head and her left hand and her left ankle. Has not been able to weight-bear since. Was not knocked out. Remembers the event, was just too fast to remember how she landed. Has been moving her left wrist and hand with no difficulty, just a bit sore. No change in vision, no weakness, no change in sensation. No headache. Denies other injuries. Reports she did it because she was dumb and was intoxicated. She denies that she did it to get away from anyone, and she does not have concerns for her safety." The defendant's submissions 1. The defendant submitted that there ought to be a verdict for the defendant on the basis that the court would accept the incident occurred in the circumstances outlined by the defendant in his statement. Contributory negligence was governed by s 138 of the MACA, s 8 of the Law Reform Miscellaneous Provisions Act 1946, and sections 5R and 5S of the CLA. The matter relating to contributory negligence raised by the plaintiff's reply, were met by the New South Wales Court of Appeal's decision in State of New South Wales v Riley [2003] 57 NSWLR 496 per Hodgson J at [104] to [107]. 2. In respect of liability, learned counsel for the defendant submitted that the court would be comfortably satisfied that the statement of Mr Goff provided an accurate and correct account of the incident. It was only after the vehicle had been driven some distance and gained some speed, that Mr Goff observed the light to come on in the cab and also on the dash board, and became aware that the plaintiff had left the vehicle. Consistent with that, he told the police on that day that the plaintiff had jumped from the vehicle, which was recorded in the police notebook, Ex 3. 3. The defendant submitted that the plaintiff first provided an account of how she came to be injured to the police officer on the morning of 19 July 2015. Although there was no entry in the police notebook to that effect, that is what Senior Constable Risby had recorded in the COPS entry, Ex 2. 4. The defendant further relied on the notes made by Dr Maw, referred to above. 5. It was submitted that there was a consistency of these contemporaneous accounts which would lead to a finding that the plaintiff had jumped out of a moving vehicle. 6. It was submitted that the court would not accept the plaintiff's explanation that she did not tell any version to the police officer on the day of the incident because she was not asked. It was submitted that that evidence was implausible. Further, she had not told police that she was fearful of being run over. The plaintiff's evidence that her mother provided the history to the doctor was not acknowledged by her mother, and further, the plaintiff took no steps to correct it if it was an incorrect history. 7. In response to a written submission submitted on behalf of the plaintiff, to the effect that the narrative recorded in Ex 2 by Senior Constable Risby was inadequate, it was submitted that the police officer had made no such concession at all. 8. It was further submitted that in the event that the Court found that Mr Goff had breached his duty of care to the plaintiff, any negligence on his part was not causative of the plaintiff's injuries. 9. Alternatively, it was submitted that by reason of the plaintiff's own failure to take care for her own safety, her claim ought to be defeated pursuant to s 5S of the CLA. 10. I refer to the defendant's submissions on damages below. Plaintiff's submissions on liability 1. The plaintiff relied on a written outline of submissions on liability which were marked for identification as MFI 6. It was submitted that the plaintiff's evidence was consistent, and with one exception, corroborated by contemporaneous records. That exception was the note of Dr Maw, referred to above. At the time the plaintiff spoke to Dr Maw, she was in a state of severe pain and distress. 2. The reference in that note that the vehicle was travelling at "possibly 40 kph" could not be accepted. It was simply "out on a limb" on any understanding of the evidence. The deceased driver had stated that the vehicle was travelling at 10-15kph. Further, the plaintiff denied describing the speed as 40kph to Dr Maw. 3. The plaintiff submitted that the evidence of Senior Constable Risby was effectively a reconstruction based on the narrative Ex 2. That narrative was created after the plaintiff had been told to obtain an Event number and registration details by her solicitor. She had spoken to Constable Risby three or four weeks following the incident, and it was submitted that the contemporaneous record contained in the narrative was inadequate. It did not accurately reflect what occurred. 4. The plaintiff submitted that Senior Constable Durham was not called and therefore an inference could be drawn pursuant to Jones v Dunkel (1959) 101 CLR 298, that her evidence would not have assisted the defendant's case. 5. The statement of the driver, Ex 4, was untested by cross-examination. It was signed after the second contact by Constable Risby with Mr Goff which occurred on 29 September 2015. 6. It was submitted that it was important that the deceased's statement, Ex 4, was silent on the issue of whether the plaintiff agreed to be taken to the police station. That was said to constitute a lacunae in the defendant's case. 7. The plaintiff had given sworn evidence that the door was opened by her to see what she was doing to find her wallet and that it remained open whilst she offered part-payment of $50, and provided her identification. She denied opening the door after the taxi commenced to drive off. 8. It was further submitted that an inference may arise from the destruction of the taxi DVD evidence by the taxi company, that any film of the incident would have been adverse to the deceased driver, relying on Allen v Tobias (1958) 98 CLR 367. 9. It was submitted that the plaintiff was a credible witness whose demeanour was that of a forthright and credible person. It was submitted that she made appropriate concessions, but was sturdy in her evidence as to the contested facts. On the other hand, the insurer was relying on Senior Constable Risby, who in some respects was "combative and not credible". 10. It was submitted that if the plaintiff is accepted as a witness of truth, then her claim in negligence should succeed. 11. On the question of contributory negligence, the plaintiff submitted that any apportionment should be carried out in accordance with the High Court's decision in Podrebersek v Australian Iron and Steel [1985] HCA 34 at [10]; and T & X Company Pty Ltd v Chivas [2014] NSWCA 235. The statutory provisions to apply are those contained in s 5R of the CLA, and the principles of s 5B of that Act must be applied to the conduct of the plaintiff. 12. It was submitted that there was no evidence to support a finding that the plaintiff was otherwise than acting with due care. If her version is accepted, she took reasonable care to reject the proposition that the deceased driver would take her to the police station. She had partially extricated herself from the vehicle, the door was open, and without warning, the deceased driver had commenced to drive the vehicle away. There is no reference in his statement of checking the safety of her position in the car before he commenced to so drive, or receiving any verbal communication that she had agreed to go to the police station. In those circumstances, a finding should be made that the plaintiff was not guilty of contributory negligence. 13. Alternatively, if the court found that the vehicle was in motion before the plaintiff opened the door, any apportionment must reflect the reasonableness of the plaintiff's decisions at that time. It was submitted that if any adverse finding was made to the plaintiff on that basis, her contribution or apportionment should be no more than 30%. 14. It was further submitted that if the court accepts the version of the plaintiff, she had, prior to the movement of the vehicle, clearly informed the driver that she was not willing to travel further with him. In the absence of consent, the deceased driver took her liberty away by the deliberate movement of the vehicle, thereby causing her injury. He had no right to do so, and in the circumstances, his conduct constituted false imprisonment of the plaintiff, insofar as there was an intention, without her consent, to restrain her liberty and take her to the police station. Liability for that tort may be considered, it was submitted, as strict liability, relying on Ruddock v Taylor (2005) 222 CLR 612 at [140] per Kirby J. Thus, a defence of contributory negligence was unavailable, relying on Fontin v Katapodis [1962] HCA 63. 15. Those written submissions were supported by oral submissions by counsel for the plaintiff. As to the notes of Dr Maw, counsel referred to the evidence of the plaintiff's mother, that she spoke to the doctors and said that "the policeman said she jumped out of the taxi". 16. It was submitted that the court would be impressed by the candour and demeanour of the plaintiff. On the other hand, the driver's statement was untested by cross-examination and should be given less weight. On the balance of probabilities, the court would accept the plaintiff's version as to what occurred. 17. Counsel for the plaintiff relied on the absence of any evidence that the defendant even looked to see whether the plaintiff was in the vehicle before he drove off. In breach of his duty of care, therefore, the plaintiff was entitled to a verdict. Counsel then rehearsed the written submissions as to contributory negligence. 18. The plaintiff's submissions as to damages are referred to below. Findings of fact 1. In arriving at the following factual findings, I formed a favourable impression of the plaintiff as a witness of truth, who gave her evidence in a credible fashion and adhered to her version of events when challenged in cross-examination. I was also impressed with the evidence of the plaintiff's mother, who gave frank and unembellished evidence. In circumstances where the defendant was allowed to rely on the statement of Mr Goff, subsequently deceased, which was untested by cross-examination, and therefore approached with some caution, I have, however, had regard to any contemporaneous evidence in accordance with the principles enunciated by the High Court in Fox v Percy (2003) 214 CLR 118. Having regard to the whole of the evidence, and on the balance of probabilities, I find as follows: 1. The plaintiff fell asleep on her journey in the taxi cab driven by Mr Goff and was awakened by him outside her home in Toormina. 2. The plaintiff arrived at approximately 5.30am when it was dark. 3. The plaintiff opened the door of the taxi cab in order to search her wallet for her debit card, given the fare exceeded $80. 4. The plaintiff took her phone from her wallet and placed it on the rear passenger seat of the taxi during that search. 5. The plaintiff was unable to locate her debit card, and offered $50 to the driver, Mr Goff, in part payment of the fare. 6. Mr Goff asked the plaintiff whether there was anyone else at home who could complete the payment and she answered "No". 7. The plaintiff told Mr Goff that he would have to come back on another date, "either tomorrow or the next day" or that she would bring the money to the taxi rank. 8. The plaintiff gave the driver her driver's licence which disclosed her address. 9. The driver told the plaintiff that she could take the money to his house and she said "No". The driver then said he could come and pick it up from this address and the plaintiff said "No". 10. The driver then said he was going to call the police. 11. The driver spoke to the police in a phone call that took approximately two minutes. 12. During that phone call, the plaintiff placed her feet outside the rear passenger seat of the taxi and on the ground, in preparation to alight from the taxi. 13. The driver spoke to the police and then told the plaintiff he was going to take her to the police station. 14. The plaintiff said "No I'm not going to the police station", and that she would pay the balance outstanding. 15. The plaintiff had money in her debit card account to pay the outstanding amount. 16. At the time the plaintiff refused to go to the police station, the car door was open and the light was on. 17. The driver drove the car forward, causing the plaintiff to fall as she alighted from the vehicle. The plaintiff fell forward out of the taxi, rolled her left ankle, and fell on her left side and hit her head on the concrete. 18. The driver drove a short distance before doing a u-turn and returning to outside the plaintiff's residence. At that point, he wound down the passenger side window and said words to the plaintiff, "You're an idiot. That's what you get". 19. The driver then drove off and, after taking another fare, reported the matter to the Coffs Harbour Police Station. 1. In deciding the above facts, I have not drawn any inferences unfavourable to the defendant based on any failure to call Senior Constable Durham (pursuant to Jone v Dunkel), or based on the destruction of any CCTV footage in the taxi (pursuant to Allen v Tobias), and I reject the plaintiff's submissions to that effect. Determination – Was there breach of the driver's duty of care? 1. I find Senior Constable Risby's evidence as to what occurred in the early hours of Sunday 19 July 2015 somewhat unreliable. He made no notation in his police notebook of any conversation that occurred at the home of the plaintiff. I find that the reason he made no notation was that the plaintiff, or her mother, agreed to pay the fare that day, and the police officer considered that was the end of the matter and no criminal action would be required. Senior Constable Risby's evidence was also unreliable in respect of the following matters: 1. He could not recall that the phone call that he received at the police station was from the plaintiff's mother; 2. He gave evidence that he attended the plaintiff's residence which was a "single storey house", when in fact it was a two-storey house; 3. His evidence as to what occurred at the plaintiff's residence is outlined in [58] above was prefaced by the words "I would have". For those reasons, I prefer the evidence of the plaintiff and her mother as to what occurred at the plaintiff's home on the morning of 19 July 2015 to that Senior Constable Risby. 1. I accept the plaintiff's evidence that the police officer did not ask the plaintiff what had occurred when he attended her home on the morning of the incident. That was revealed in his evidence recorded at [61] above, when he said that "she never disclosed how she got the injury". 2. The plaintiff contacted the police officer some three to four weeks later, after consulting with her solicitor. It was clear that she required an Event number for her claim for personal injuries, and that was the purpose of her contacting him. She then gave a version of the incident which was consistent with her sworn evidence. 3. As set out above, the driver's statement made on 12 November 2015 to an investigator, was untested by cross-examination. It was made four months following the incident. The statement does not refer to a phone call made to the police station whilst the vehicle was stopped outside the plaintiff's residence. It also records that on the morning of the incident, Senior Constable Risby informed Mr Goff that the Event number was E 61770883. That was incorrect, as the Event number was not created until Senior Constable Risby commenced the COPS entry on 8 October 2015, three months after the incident. 4. Other than the notebook entry "Rachelle jumped out on Mirroll", there is no contemporaneous police record of the incident. Having spoken to the police prosecutor and his superior officer, Senior Constable Risby then created the narrative on 8 October 2015, almost three months after the incident. That narrative, and in particular the extract recorded at [52] above, necessarily involved some reconstruction of the events, relying on Senior Constable Risby's memory, without the benefit of recourse to any contemporaneous notes taken by him. I accept the plaintiff's evidence that she had not given a version of what occurred to the police officer on 19 July 2015, notwithstanding the defendant's submission that to not do so would be otherwise implausible. The plaintiff was in considerable pain as a result of suffering a spiral fracture of her ankle, and the police officer was concerned to ensure payment of the $34 outstanding. Once a civil resolution of that matter was achieved, the police officer took no further action. 5. Nor is the note attributed to Dr Maw later that afternoon at the Coffs Harbour Health Campus a reliable source of what occurred. First, it is inconsistent with the history taken by the triage nurse at 7.36am, i.e. "fall out of slow moving car". Secondly, there is no corroborating evidence that the vehicle was moving at 40 kph. Thirdly, the plaintiff denies that she gave Dr Maw that history, given that she was in considerable pain, had been given painkillers, and was awaiting treatment. The plaintiff believed her mother spoke to the doctor, however, her mother had no recollection of providing a history. Rather, she believed she would have told the nursing staff and doctor what she had been told by police. Dr Maw's progress note suffers the problem identified by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2]. See also, Container Terminals Australia Limited v Huseyin [2008] NSWCA 320 at [8]. It cannot be accepted as reliable evidence of what in fact occurred. 6. The issue of breach of duty of care is determined by application of s 5B and 5C of the CLA. On the facts outlined above as I have found them, there was a significant risk of harm to the plaintiff once she opened the door to the taxi and offered part payment of the fare (and identification by way of her driver's licence to the driver) if the vehicle was driven forward. The driver must have known at that time that the light in the vehicle was on and therefore the door was open. Further, the plaintiff was seated directly behind him, and to drive off before he was satisfied that she was fully within the cab, clearly constituted a breach of his duty of care to her. 7. Further, the defendant's breach was causative of the plaintiff's injuries, pursuant to s 5D of the CLA. The defendant submitted that the plaintiff had not made out causation in the circumstances. Generally, in motor vehicle accident cases where negligence is established pursuant to ss 5B and 5C, there is little issue that factual causation follows pursuant to s 5D(1)(a), and once that is established, there is usually no issue that it is appropriate for the scope of the driver's liability to extend to the harm caused to the injured party, pursuant to 5D(1)(b) – see for example, Nominal Defendant v Bacon [2014] NSWCA 275 at [15] and [16]. Pursuant to s 5E of the CLA, the plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. I find both factual causation and scope of liability made out against the defendant here. 8. The defendant made no submissions in respect of his reliance on ss 5F, 5G, 5H and 5I of the CLA as pleaded. Having regard to my findings of fact as set out above, there was no obvious risk in the plaintiff alighting from the vehicle, rather, the risk of harm arose from the defendant driving off while she was doing so. 9. I therefore conclude that the defendant was negligent. Was the plaintiff contributorily negligent? 1. Division 8 of the CLA is headed "Contributory negligence". It provides: "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 the reduction in damages by reason of contributory negligence, a court may determine a reduction of 100 per cent if the court thinks it is just and equitable to do so, with the result that the claim for damages is defeated." 1. In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (Barrett and Gleeson JJA agreeing) said as follows: "161 The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case. 162 As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a) – (d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 138(3) required the court to reduce the damages recoverable 'by such percentage as the court thinks just and equitable in the circumstances of the case.'" 1. On the facts as I have found them, the plaintiff told the taxi driver that she was not going to the police station with him. She had good reason for doing so. First, in 2009 an incident occurred when she was assaulted in a taxi cab. Secondly, the police station was located in the city of Coffs Harbour and she had no way of getting home from there. Thirdly, at the time that conversation took place, after the driver had made the telephone call to the police station, the rear passenger door was open and her feet were already out of the vehicle. 2. In applying s 5B of the CLA to the situation in which the plaintiff was then in, to alight from the vehicle did not constitute a want of care for her own safety. The risk of harm manifested only when the driver drove the vehicle forward, causing her to fall. The standard of care required pursuant to s 5R(2) of the CLA, is that of a reasonable person in the position of the plaintiff and as set out above, the matter is to be determined on the basis of what the person, i.e. the plaintiff, knew at that time. In the circumstances, I'm not satisfied that the defendant has made out its case that the plaintiff was guilty of contributory negligence as pleaded in 7(a) - (c) of the Defence. The plaintiff did not alight from the defendant's vehicle whilst it was moving and there was no obligation on her to warn the defendant of her intention to alight from the vehicle. Rather, she had already told him that she was not going to the police station with him. She could not have known that he would drive off when she was partly out of the vehicle. In the circumstances, I decline to make a finding of contributory negligence. 3. There is therefore no need for me to make a determination on the Reply as pleaded by the plaintiff. However, the question of intentional tort does not arise, based on the findings that I have made as outlined above. 4. There will therefore be a verdict for the plaintiff. Damages 1. The plaintiff relied on a schedule of medical evidence which comprised two reports. The first from Dr F Machart dated 15 August 2016, followed an examination of the plaintiff on 26 July 2016. Dr Machart recorded that the plaintiff had suffered a fracture to her left ankle described as a "Weber B fracture". She also suffered abrasions to her face and concussion. The plaintiff's current symptoms were described as follows: "There was left ankle clicking and ache. Pain was evident when standing for prolonged periods of time. She found it difficult to wear high-heels shoes. She experienced pain after being on her feet for prolonged periods of time. She found it difficult to stand for prolonged periods of time. Her standing tolerance was four hours. Walking up and down stairs caused pain. She could not drive for the first six months. She was unable to attend gym as per pre-injury. She was unable to conduct gardening or lawn care." 1. On examination, the plaintiff had mild swelling around her left ankle and tenderness over the distal fibula. Dr Machart was of the opinion that there was a possibility that she could develop osteoarthritis in her ankle, less than 5%. It may not be evident for 10-15 years. 2. Dr Spira examined the plaintiff on behalf of the defendant's solicitors on 21 December 2016. His report dated the same date was re-served by the plaintiff's solicitors on the defendant's solicitors. Dr Spira, a consultant neurologist, recorded her history of treatment. That history included: "Her ankle tends to give her trouble primarily on exertion such as in gym exercises or with prolonged standing or walking. … She merely takes either Panadol or Nurofen at times of flare up of ankle pain.' 1. Dr Spira also noted that the plaintiff continued to experience recurrent headache and had, since the incident, suffered considerable anxiety, "primarily focussed on travel". Prolonged walking, standing or exercise led to pain centred over the left lateral malleolus. The plaintiff had been making steady recovery until she went back to work in April 2016. The pressure of work accentuated her ankle pain and headaches and she felt that she had been deteriorating over time. 2. Dr Spira was of the opinion that the plaintiff's injuries had resolved and her ongoing symptomatology was psychogenic. He deferred to the opinion of an orthopaedic surgeon in respect of her ongoing ankle pain. 3. Dr Metelo, from the Coffs Harbour Health Campus, described the fracture suffered to the plaintiff's left ankle as a "spiral fracture of the lateral malleolus". It was not displaced, and there was no widening of the ankle joint. 4. Exhibit N comprised hospital notes from the Coffs Harbour Health Campus relating to examination of the plaintiff by Dr Hart in respect of her head injury, three days following the accident. A provisional diagnosis of post-concussive syndrome was made and an MRI brain scan carried out with no abnormality detected. The plaintiff complained at that time of ongoing headaches. 5. The defendant relied on a report of Dr L Pierides dated 15 December 2016. Dr Pierides is an occupational physician. He examined the plaintiff on 14 December 2016 and was of the opinion that her injuries had fully resolved, and her prognosis was excellent. Dr Pierides was of the opinion that she would not have required any gratuitous care at 12 weeks post the subject accident. 6. The plaintiff advocated a schedule of damages which was marked for identification (MFI 2). It included the following heads of damages: Future economic loss based on (loss of ability to compete), and vicissitudes of 20% $127,725.00 Future superannuation 14.1% of net future loss $18,009.00 Past treatment expenses: HIC charge $412.00 Crutches $15.00 $540.40 Fiberglass cast $25.00 Physiotherapy $88.40 Total Future treatment expense: Medications per week @ $5.00 $5,045.00 20 sessions of physiotherapy @$75 $1,500.00 $7,545.00 10 sessions of counselling for stress $1,000.00 Total Past paid assistance for lawnmowing $1,820.00 Past gratuitous care – 6 months @ 14 hours per week $10,705.24 From 18 January 2016 to date @ 8 hours per week $19,187.20 $29,892.44 Total Future paid care and services – 2 hours per week at commercial rate of $35 per hour $70,630.00 Total $256,161.84 1. Counsel for the plaintiff submitted that the plaintiff was a witness of truth whose evidence would be believed. Dr Machart had relied on the small possibility of onset of osteoarthritis for a spiral fracture that involved the articular surfaces of her left ankle. The current symptoms he recorded were consistent with her evidence. Her injuries had plateaued, but not resolved. 2. It was submitted that the plaintiff's claim for past domestic assistance was a modest claim. The court would accept the evidence given by the plaintiff's mother as to her contribution. It was clear that the domestic tasks carried out were on behalf of both the plaintiff's two children, and the plaintiff. The plaintiff's Amended Statement of Particulars claimed that for the first period of three months whilst the plaintiff was in a cast and CAM boot, she required 14 hours per week domestic care and assistance. For the following period of three months she required 7 hours per week care. 3. The plaintiff made no claim for past wage loss. However, her evidence, supported by Dr Machart, established on the balance of probabilities that her work was limited to five 4 hour shifts, a total of 20 hours per week. Whilst that would demonstrate a 50% loss of earning capacity, the plaintiff had limited her claim to a diminished earning capacity of 20%, and applied a discount of 20% for vicissitudes, given the young age of her children. Her Amended Statement of Particulars limited that claim to a lump sum of $75,000.00, inclusive of superannuation, by way of a buffer for future economic loss. 4. The plaintiff also made a claim for future paid domestic assistance associated with heavier household cleaning tasks and/or lawn mowing equivalent to 2 hours per week. 5. Counsel for the defendant submitted that there was no marked divergence between the medico-legal opinions obtained on behalf of both plaintiff and defendant. The plaintiff had suffered an undisplaced spiral fracture of her left lateral malleolus. It was submitted that she had made a full recovery from that injury and had minimum recent treatment. 6. It was submitted that the plaintiff's claim for ongoing medication for the rest of her life was overstated, and there was no basis for any claim for future treatment. 7. In respect of the plaintiff's claim for future economic loss, there was no evidence that the plaintiff will require any time off work, and therefore there was no basis for the award of damages by way of a buffer. 8. In respect of the plaintiff's claim for past domestic care, it was submitted that the Court would not be satisfied that the plaintiff had crossed the threshold for an award of such damages. The evidence given by the plaintiff's mother demonstrated that most of the care and assistance was directed towards the plaintiff's children, and no claim for damages pursuant to s 15B of the CLA had been made by the plaintiff. There was no evidence of what assistance the mother gave to the plaintiff during the first period of six months, and therefore there should be no award of damages for past care. 9. In respect of the claim for paid care into the future, there was no medical evidence supporting the need for such assistance. Even if there was such a need, the care was being provided by the plaintiff's partner on a gratuitous basis. Therefore, relying on Miller v Galderisi [2009] NSWCA 353, the need for such care had not been established. In any event, the only medical support for such care was from Dr Machart, who had opined that it would be required for a period of 12 months, which had now expired. Assessment of damages 1. I accept the plaintiff's claim for past treatment expenses as outlined above in the sum of $540.00. I accept Dr Machart's findings on examination in respect of the injury suffered by the plaintiff to her left ankle. Dr Spira deferred to that opinion. I therefore do not accept the opinion of Dr Pierides, an occupational physician, that by December 2016 the plaintiff's injuries had fully resolved. I also accept that she requires painkilling medication for ongoing pain in her left ankle, however, that will not be required for the rest of her life. I am not persuaded that the plaintiff will ever require an arthrodesis of her left ankle. There is no medical support for such a finding. I therefore award the plaintiff the sum of $2,000.00 for ongoing treatment expenses, including weekly medication and physiotherapy if it is recommended for her. 2. The plaintiff is employed on a casual basis at the Coffs Harbour Yacht Club and is not suffering a wage loss as a consequence of the accident. Hence, she has made no claim for past wage loss. Her claim for future economic loss is brought on the basis that "it is inevitable that she will require further time off work". In addition, if she required an arthrodesis to her ankle, that would necessitate an extended period of time off work, or in a worst case scenario, early retirement. 3. I am not satisfied that the plaintiff will require any time off for a surgical procedure. Section 126 of the MACA provides as follows: "126 The future economic loss/claimant's prospects and adjustments (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." 1. At the time of her injury, the plaintiff was studying a Certificate III course at TAFE. But for the injury, she would have completed that course, as she did, and then looked for work compatible with that qualification, i.e. business administration. In the event that she was unable to find such work, the plaintiff has shown a capacity to work in hospitality, but only for four hour shifts, whereas other workers employed by the same employer work eight hour shifts. It has to be taken into account that the plaintiff has young pre‑school age children, which also limit her capacity in the short-term to work longer hours. 2. The test to be applied is whether the plaintiff's diminished earning capacity is, or may be, productive of financial loss as a result of her injury – see Medlin v State Government Insurance Commission (1995) 182 CLR 1. Given the ongoing nature of pain in the plaintiff's ankle, and that she is required to work standing, I find the diminution of her earning capacity may be productive of financial loss into the future. Notwithstanding the difficulty in assessing that loss, the Court is required to do so, and based on the assumptions that I have set out above, I assess her loss as a lump sum of $30,000.00, to include any future superannuation entitlement. 3. The plaintiff's claim for past domestic assistance is confined to a period of six months following her accident. I accept the evidence of the plaintiff as to the gratuitous domestic care and assistance she required from her mother over the first six months following the accident. For a period of three months, the plaintiff's mother attended at her home for up to 12 hours per day. It is clear that a great deal of that assistance was directed to the care of the plaintiff's children. However, the plaintiff also required her mother's care, and I accept that it was reasonable that such care was required for two hours per day, or 14 hours per week for the first three months. The evidence also established a need for care thereafter of one hour per day or seven hours per week for a further period of three months, as well as the cost of lawn mowing over a period of one year. I am therefore satisfied that the plaintiff has satisfied the threshold in s 141B(3) of the MACA and is entitled to damages for past gratuitous care and services: 13 weeks x 14 hours x 29.41 = $5,352.00 13 weeks x 7 hours x 29.41 = $2,676.00 Total $24,816.00 I also allow for lawn mowing the sum of $1,820.00 1. I am not satisfied that the plaintiff has established a need for future care and assistance to be provided on a commercial basis. Rather, the evidence established that those services will be provided on a gratuitous basis and therefore I decline to award damages for future paid care – see Miller v Galderisi, supra. 2. I therefore assess damages as follows: Past out of pocket expenses $540.00 Future treatment expenses $2,000.00 Future economic loss $30,000.00 Past gratuitous care and assistance $8,028.00 Past paid lawn mowing $1,820.00 Total $42,388.00 Conclusion and Orders 1. There will therefore be a verdict and judgment for the plaintiff in the sum of $42,388.00. There will no apportionment of the judgment amount based on any contribution by the plaintiff by way of contributory negligence. 2. I make the following orders: 1. Verdict and judgment for the plaintiff in the sum of $42,388.00. 2. The defendant to pay the plaintiff's costs of the proceedings. 3. Exhibits to be returned forthwith. 4. Any special costs order is to be applied for by way of Notice of Motion and affidavit in support, giving 5 days' notice to the opposing party. ********** 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: 10 August 2017