District Court New South Wales Medium Neutral Citation: Croizet v Shustov [2017] NSWDC 331 Hearing dates: 23, 24, 25 and 27 October 2017 Date of orders: 20 November 2017 Decision date: 20 November 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: In respect of the claim for Nervous Shock: (1) Judgment for the plaintiff in the sum of $664,241.00. (2) The defendant to pay the plaintiff's costs. In respect of the claim under the Compensation to Relatives Act 1897 (NSW): (1) Judgment for the plaintiff in the sum of $780,000 with such sum to be apportioned as follows: (a) Payment of the sum of $762,000.00 to Selina Croizet. (b) Payment of the sum of $6,000.00 to Daniel Croizet. (c) Pursuant to ss 75-77 Civil Procedure Act 2005 (NSW), payment of the sum of $12,000.00 being the sum to which Lewis Croizet is entitled to the Trust Account of the plaintiff's solicitors, Stiles Lawyers, with such sum to be invested in an appropriate Trustee investment by those solicitors and to be paid to Lewis Croizet upon his reaching the age of 18 years old with any appropriate interest earned thereon. (2) Defendant to pay the plaintiff's costs. Catchwords: TORT – nervous shock - plaintiff brings claim for damages following the death of her husband in traumatic circumstances near her home – admission of breach of duty of care – contributory negligence by the deceased - quantification of non-economic loss for severe psychiatric disabilities – no issue of principle Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B(2)(a), 5R and 5S Compensation to Relatives Act 1897 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9 Motor Accidents Compensation Act 1999 (NSW), s 138 Road Rules 2014 (NSW), rr 138, 140, 141, 144 and 150 Cases Cited: Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298 Crown v Panetta (1997) 26 MVR 332 Kraus v Sartori [2016] NSWDC 102 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 Zilio v Lane [2009] NSWDC 226 Category: Principal judgment Parties: Plaintiff: Selina Croizet Defendant: Leon Shustov Representation: Counsel: Plaintiff: Mr W M Fitzsimmons Defendant: Ms M A Kumar Solicitors: Plaintiff: Stiles Lawyers Defendant: Curwoods Lawyers File Number(s): 2016/59491 Publication restriction: Parties' names anonymised Judgment Introduction 1. The plaintiff brings proceedings for damages pursuant to the Compensation to Relatives Act 1897 (NSW) and the Motor Accidents Compensation Act 1999 (NSW) arising from the circumstances in which the plaintiff suffered nervous shock following the death of her husband in a collision at the intersection of Yarrara Road and Wells Street, Thornleigh, outside the Maronite Church. The plaintiff learned of the accident shortly after it occurred when someone at the Church telephoned one of her sons and she and the family went to the scene of the accident. 2. At the request of the parties I have de-identified the parties' names. The issues not in dispute 1. The defendant admits breach of his duty in that he: 1. failed to give way to the deceased's motorcycle (particular (d) of the statement of claim); and 2. cut the corner at the intersection of Yarrara Road and Wells Street (particular (e)). 1. The remaining particulars of negligence are denied. 2. A number of the heads of damage have been admitted, namely: 1. past economic loss: the sum of $51,600 ($400 x 129 weeks); 2. past loss of superannuation: $5,676 (11% of net loss); 3. future economic loss ($400/week x 666.4 less vicissitudes 15%): $226,576; 4. future loss of superannuation: $27,189 (12% of net loss); 5. past out-of-pocket expenses: $3,200. 1. The issues in dispute are: 1. contributory negligence; 2. non-economic loss (although the maximum of $527,000 is the subject of agreement as to the ceiling) (quantum for the claim under the Compensation to Relatives Act has been agreed at $780,000); 3. future out-of-pocket expenses. 1. The circumstances of the accident are agreed to be as follows. Joseph Croizet (the deceased) was riding his motorcycle south along The Esplanade, Thornleigh when he proceeded through the intersection with Wells Street and Yarrara Road, proceeding from the southbound through-lane. He collided with the front nearside of the vehicle the defendant was driving north on Yarrara Road, Thornleigh whilst the defendant was executing the right turn. The deceased suffered catastrophic injuries and died immediately. The plaintiff is his wife. The plaintiff exceeds 10% whole person impairment. Contributory Negligence 1. The particulars of contributory negligence set out in the further amended defence filed in Court on 24 October 2017 are as follows: 1. the deceased has exposed himself to a risk of injury which could have been avoided by the exercise of reasonable care; 2. the deceased drove his vehicle in contravention of rr 138, 140, 141, 144 and 150 Road Rules 2014 (NSW); 3. the deceased failed to keep a proper lookout; 4. the deceased failed to keep his motor vehicle under any or any proper control; 5. the deceased was travelling at a speed excessive in the circumstances. 1. In the course of submissions, these particulars were reformulated by the defendant to be as follows: 1. excessive speed; 2. contravention of Road Rules 2014 (NSW) relating to the deceased's overtaking manoeuvre, namely: 1. (i) rule 140 (not to overtake unless it is safe to do so); 2. (ii) rule 141 (overtaking to the left of a vehicle); 3. (iii) rule 144 (overtaking a vehicle too closely); and 4. (iv) rule 150 (driving on or over a continuous edge line of the road); 1. failure to keep a proper lookout (namely, failing to look for traffic "in front") (defendant's written submissions paragraph 7). Lay and expert evidence concerning the circumstances of the accident 1. The plaintiff obtained the services of Mr Mark George of Accident Investigation Services Pty Ltd, who noted the following conclusions at paragraph 65 of his report: "On the basis of the accumulative information and investigations to date, it is concluded that: 65.1 Mr Croizet's motorcycle and Mr Healey's Landcruiser have moved off from the Eddy Street traffic lights travelling side by side, which would have been a sedate rate of acceleration for the motorcycle; 65.2 As the carriageway narrowed at the end of the straight, Mr Croizet has most likely accelerated momentarily and overtaken the Landcruiser near the end of the initial straight section of The Esplanade and prior to reaching the slight bend and nearside kerb island; 65.3 The speed of Mr Healey's Landcruiser was ≈50 km/h when it was overtaken by the motorcycle. It was therefore not necessary for Mr Croizet to accelerate the motorcycle to an unreasonably high speed in order to overtake the Landcruiser; 65.4 Mr Croizet approached the intersection of Wells Street travelling in the right-hand through lane; 65.5 Mr Shustov did not identify the Mr Croizet's motorcycle or Landcruiser approaching the intersection, and has commenced a premature right-turn into Wells Street, illegally cutting the corner; 65.6 The impact with Mr Croizet and his motorcycle occurred ≈1.8 after Mr Shustov commenced his right-turn; 65.7 Mr Croizet was attentive to his riding and has commenced panic braking, unfortunately locking the front-wheel, which has caused the motorcycle to quickly fall onto its left side, whereupon Mr Croizet's head, neck and left shoulder have collided awkwardly with the front left guard, bonnet, windscreen and windscreen pillar of Mr Shustov's turning vehicle; 65.8 The overall physical evidence appears to be supportive of a pre-skidding motorcycle speed in the order of 59-67 km/h; 65.9 Mr Shustov's premature right-hand turn, travelling early onto the incorrect side of the roadway was a prime adverse factor associated with the cause of the collision; 65.10 Had Mr Shustov simply proceeded to the correct turning location within the intersection at the end of the double unbroken separation lines (adjacent the [sic] crash site), the collision would have been entirely avoided with Mr Croizet and his motorcycle." 1. The defendant retained Mr Hall of Hall Technical. His conclusions were as follows: "12.1 Based on the estimated rest locations of the motorcycle and Mr Croizet after the collision and the location of the road surface scrape/gouge marks, it is apparent that Mr Shustov was "cutting" the corner in a manner consistent with common practice adopted by drivers turning right into Wells Street. 12.2 The time from when Mr Shustov began to turn right to the moment of the impact, assuming a constant speed of 20 kph, was approximately 1.8 seconds. 12.3 If Mr Croizet had been in the process of slowing using his front brake when he first recognised that Mr Shustov was turning across his path, it was likely that his speed was above 70 kph prior to him applying emergency braking. 12.4 If Mr Croizet had not been in the process of slowing with his front brake when he recognised that the VW was turning, he was likely to have been travelling at 80 kph or more. 12.5 Based on the damage to the VW and the rest position of the motorcycle, it was unlikely that Mr Croizet was travelling faster than 90 kph. 12.6 Mr Healy would have been in a position to recognise the general magnitude of the difference in his speed compared with that of the motorcycle as it moved past him and forward of him. 12.7 At a time some 1½ - 2 seconds from the moment that Mr Shustov turned, the headlight of Mr Croizet's motorcycle would have been within Mr Shustov's field-of-view; 12.8 The offset alignment of following traffic was likely to have made detection and recognition of the motorcycle travelling adjacent to the Toyota difficult; 12.9 Once Mr Shustov had decided to turn, his focus would have been through the corner, away from the approaching traffic, and consequently, later detection of the movement of Mr Croizet would have been difficult. 12.10 The gap acceptance adopted by Mr Shustov for his turning in front of oncoming traffic was at the lower end of time normally adopted by turning motorists. 12.11 Mr Shustov did not apply his brakes, but chose to accelerate in an effort to avoid the collision. If Mr Shustov had applied his brakes, in the alternative, the collision would still have occurred. 12.12 Mr Shustov failed to give way to the oncoming motorcyclist. 12.13 Issues relating to whether Mr Shustov failed to keep proper lookout, failed to execute a right-hand turn in a safe manner or whether he had a valid reason for not giving way to the oncoming motorcyclist are matters for the Court to decide." 1. The experts agreed in conclave as to the following facts: 1. The deceased's skid mark was 6m long and the distance between the commencement and end of the gouge mark was approximately 13m. The likely point of impact was also agreed. 2. The turning speed of the Volkswagen was 20km/hr but it had cut the corner in that it had driven over the unbroken double separation lines separating the traffic on The Esplanade as well as driving over the painted traffic island on the south-eastern corner of the intersection. 3. If the Volkswagen had turned at the end of the unbroken separation lines, the motorcycle would have passed through the intersection prior to the Volkswagen commencing its turn and the collision would have been avoided. Mr Hall added only that this scenario did not preclude the possibility of Mr Croizet falling from his motorcycle (as opposed to colliding with it). 4. There was dispute about the motorcycle's pre-skidding speed. Mr Hall for the defendant considered it was 85-90km/hr, whereas Mr George considered the pre-skidding speed was in the order of 57km/hr. 1. Although the experts could not agree upon the speed of the deceased's bike (see (d) above)) the first difficulty for the court is that the role that speed played in the accident, if any, is not explained. The mere fact that a vehicle is travelling in excess of the speed limit may not, without some causative relationship with events, mean that there has been contributory negligence, and those causative facts must be established with some care in order to determine the degree of contributory negligence involved. The second difficulty is that some form of reliable evidence of the relevant speed must be established. 2. The police attended the scene of the accident very shortly after the collision and the extensive and careful steps taken to preserve the accident scene and to report on it have resulted in a particularly high degree of accuracy. 3. Surprisingly, in these circumstances, the defendant in written submissions submitted that the position of the deceased prior to the collision "is not a matter for expert opinion or the physical evidence, but rather this is a matter for the lay witnesses" on the basis that these witnesses had "a primary recollection of the deceased overtaking in the left-hand turning lane only", despite concessions made by the two witnesses called to support the defendant (Mr Foord and Mr Healey), which concessions were attributed to "the end of rigorous cross-examination" (paragraph 11 written submissions). 4. I shall set out the evidence of each of these witnesses in turn. The evidence of the defendant 1. I start by noting that Mr Fitzsimmons challenged the entitlement of the defendant to give any estimate of the speed he was travelling at the time of the accident at all. 2. The circumstances in which lay evidence on issues such as the speed of a vehicle may be given need to be considered with some care. The case relied upon by Ms Kumar (Crown v Panetta (1997) 26 MVR 332) is of limited assistance in personal injury proceedings, where issues of negligence rather than criminal conduct are in question. 3. By coincidence, the same rate of speed as that asserted in these proceeding (namely 70km/hr) was considered by the Court of Criminal Appeal in Crown v Panetta not to be rationally based on the evidence. It was the opinion of Hunt CJ at CL, writing the leading judgment, that the evidence should not have been admitted, having regard to the fact that the witness in question was in a car moving in the opposite direction at 70km/hr and that she had observed the approaching headlights of the other vehicle only for a few seconds. Hunt CJ at CL considered that objective evidence at the scene of the accident, such as the tyre marks and photographs, would have been of greater assistance. 4. Both these factors may be observed in these proceedings. In particular, the defendant similarly had only a very brief glimpse of the deceased prior to impact, as he acknowledged at T 153, when he admitted that his estimate of 70km/hr was "just a guess": "Q. And of course, all these observations that you were making were just in, effectively, a split second, weren't they? A. Yes." (T 153-154) 1. The defendant admitted (at T 153) that it was only because of the sound of the bike, rather than its movement, he had made an assumption that the bike was accelerating. As the plaintiff's expert noted, this was a very powerful bike, capable of loud noise. Bike noise is, in any event, hardly a satisfactory indicator of speed. 2. The defendant's evidence on a number of other issues was similarly unreliable or inconsistent with the objective evidence. First, he claimed that he executed the right turn without crossing any of the road markings, although this in fact had been conceded in the pleadings (T 130-133). It was put to him at T 133 that this evidence was patently untrue and he had in fact cut the corner: "Q. Correct? You are representing in that exhibit that you proceeded so far into the intersection that your car was well and truly clear of the centre line marking on Yarrara Road. Correct? A. Not well - I wouldn't say well and truly clear. Q. Well, you were clear of it. A. Clear of the double lines? Q. Yes. A. Yes. Q. And that you were essentially - if I can put it this way - you turned around at the end of those double lines to turn right into Wells Street. Correct? A. Yes. Q. Mr Shustov, I want to suggest to you that what you've depicted in that drawing as to your part is patently untrue, isn't it? A. No. Q. You cut that corner, didn't you? A. No." (T 133) 1. Although this inconsistency was pointed out, the defendant continued to deny that he had cut the corner, claiming that when he executed the right-hand turn, he had done so clear of the centre double lines: "Q. Mr Shustov, have you heard the expression, "Cutting a corner"? A. Yes. Q. You understand what that means, don't you? A. Yes. Q. And you accept that this drawing depicts - and if you assume the blue vehicle depicted in this is your vehicle, that if this drawing is correct, you've cut the corner. Correct? A. Yes. Q. Your say though - your evidence is you didn't cut the corner, correct? A. No, not in my‑‑ Q. Do you accept that? A. Yes. Q. What I want to suggest is that evidence that you gave - that is, that you didn't cut the corner - was patently untrue, wasn't it? A. The drawing I just did? Q. Yes. A. Yes. Q. Why, Mr Shustov, - this is your opportunity to explain to the Court - did you give evidence that only five minutes ago was patently untrue? A. Cause it - it's just my representation of how I went through the corner. Q. But you know it was wrong, don't you? A. Looking at - looking at this photograph. Q. I'm not asking you to look at that photograph. I'm asking your recollection on the night. You know that what you seek to represent before as the path you took into that corner was wrong. A. I - I don't know. I don't - I don't recall cutting the corner on the night of the events. Q. Do you have any recollection of what path you took as you turned this corner? A. Not if I had to draw it. Q. Mr Shustov, why then did you draw it before, when I asked you to draw it, if you really have no recollection? A. Don't know. Q. Have you heard the expression, "Exculpate"? A. No. Q. You were seeking to represent, by that diagram, that you did nothing wrong on this night. That's what you were seeking to do, weren't you? A. I don't know. Q. Mr Shustov, you accept, don't you, that if in fact you cut the corner, you accept that that manner of driving was unsafe. Do you accept that? A. Yes. Q. And do you accept not only was it unsafe but it was illegal. Do you accept that? A. Yes. Q. And that's in fact what you did, didn't you, on this night? You cut the corner, didn't you? A. No, not - not to my knowledge, no. Q. What I want to suggest: not only did you cross over the centre unbroken line on Yarrara Road, but you in fact crossed over the traffic island immediately to your right at the intersection of Wells and Yarrara, didn't you? A. No, not that I recall. Q. Well you can see from the photograph with the reconstruction that your vehicle is depicted crossing over the corner of that traffic island. A. Yes. Q. And I want to suggest that's exactly what happened, wasn't it? You crossed over that traffic island, didn't you? A. No, not as I recall." (T 135-136) 1. The defendant's evidence of his path is inconsistent with the objective evidence of the photograph and in fact with his own diagrammatic representation of his path of travel (Exhibit E). His insistence that he had no recollection of cutting the corner (see T 135-136 above) in the face of all this evidence lacks credibility and this must taint his observations generally, including his assertions about the speed of the deceased's bike. 2. The defendant's evidence as to when the deceased's bike began skidding (which he thought was before it went into the intersection) (see T 143-144) is inconsistent with the careful mapping out of the skid mark by the police on the night, with the result that his evidence is inconsistent with both the physical evidence and the agreed position of the collision as arrived at by the experts. 3. The defendant did not see the deceased's motorbike skidding in an upright position (T 144-145) which demonstrates that any claimed observations by him of the deceased's motorbike, let alone the estimate of speed, would be, to use the defendant's own words at T 140, "just a guess". 4. The defendant ultimately conceded (as Mr Fitzsimmons notes in his submissions in reply at paragraph 11) that his recollection of the events on the night of the accident might not be as clear as he was claiming: "Q. But, Mr Shustov, you told me before that you had a very good recollection of the events leading up to the accident, didn't you? A. Yes. Q. You told me before that you remember proceeding right up into the intersection, didn't you? A. Yes. Q. And you told me before that you recall turning right, clear of the lane line to your right, didn't you? A. Yes. Q. But do you say now despite giving that evidence, perhaps you're not so clear about that after all? A. Yes, I guess." (T 140) 1. In the witness box, the defendant was at times argumentative and unwilling to admit he bore any blame for the accident. His lack of objectivity was apparent. He is not a witness upon whom any weight should be placed (apart from admissions contrary to his interest) where that evidence is inconsistent with the objective evidence or the expert reconstruction of events. 2. The next question is whether the other two witnesses called by the defendant could provide that corroboration. The evidence of Mr Nicholas Healey 1. Mr Healey, a 53 year old man who is an experienced driver and familiar with the area, was stopped at a red light from which he pulled out when he passed what he called "a picnic style shelter" on the left-hand side of the road about 100m from the lights (T 163). At that point he heard what he called "a very loud noise" (T 163). He was unable to see what was on the ground below him but was aware of a motorcyclist going forwards in the lane that could only turn left. He described the motorcycle as cutting across in front of him "at a reasonably steep angle and essentially drives straight into a grey car" (T 168). That car was approximately halfway across the road making a manoeuvre (T 168). 2. Mr Healey's observations are even more fleeting in nature than those of the defendant, as he conceded in cross-examination: "Q. And do you accept that the period of time that you had it under observation, in terms of relative to you travelling and the lane you were in, was fleeting? A. Fleeting? Yes. Q. You accept that it would be very difficult for you to really estimate the speed differential between yours and the motorbike given you only had it under vision for that fleeting second? A. I accept that." (T 186) 1. Despite the experts making it clear that the defendant was riding a motorbike which would have made a very loud noise, particularly when it was skidding, Mr Healey had no recollection of the deceased's motorbike skidding at all: "Q. You accept, don't you, that if in fact that's what it was doing - and I want to use that expression so you understand what I'm talking about - that laying rubber on the road for six metres you accept that that would've obviously produced some smoke out of the back of the bike? A. Yes. Yeah, well I can only presume it would. I don't know. Q. You never saw that? A. I don't recall seeing that, no. Q. You never saw it skidding at all? A. No. Q. Is that right? A. That's correct." (T 183-184) 1. Mr Healey did not recall seeing any braking on the part of the motorbike or the brake light being illuminated: "Q. So do I understand what you're saying? You didn't even see the bike apply its brakes. A. I don't recall seeing the bike applying his brakes. Q. You didn't see a brake light? A. Well - I - no, no I didn't. The lights were on of the motorcycle but I didn't see it get much brighter. Q. Do I understand that you had a clear view of this motorbike, though, in front of you? A. I did. Q. And yet you didn't see any braking at all on the motorbike? A. No, I don't recall that." (T 184-185) 1. All of this evidence is inconsistent with the objective evidence at the scene of the accident, which is the evidence upon which Hunt CJ at CL placed so much weight in Crown v Panetta. It is also in contradiction to the agreed estimates and reconstruction of the accident by the expert witnesses in relation to the points set out above. This must cast real doubt upon his ability to recall any of the events accurately, let alone the speed of the deceased's vehicle. 2. Mr Healey presented as an honest witness doing his best to assist the Court, but his concessions to Mr Fitzsimmons in cross-examination confirm that his observations were of the briefest nature and were impressions at best. As Mr Fitzsimmons noted in his closing submissions, if Mr Healey's evidence was corroborative of anything, it was corroborative of the version of events given by the plaintiff's expert, which would mean that the deceased's bike was not travelling at any excessive speed. The evidence of Mr Foord 1. Mr Foord, who was travelling in the same direction as the defendant, was also called to give evidence. He told the Court he is now 23 years of age, but that he had been driving since he was legally able to do so. He was 21 at the time of the accident. 2. Unlike Mr Healey, who retained only a general impression of events, Mr Foord painted a vivid and dramatic picture of the accident occurring so close to him that he feared his own vehicle would be struck. He said that he "effectively witnessed the accident" in his driver's side rear vision mirror (T 194). 3. Although dramatic, Mr Foord's evidence, upon closer examination, is inconsistent with what occurred. Part of the reason for this may be that, unlike Mr Healey, he was not interviewed by police on the night of the accident, so there is no contemporaneous record of his observations. 4. At the time that Mr Foord first saw the defendant's vehicle, he was already ahead of it and would have moved even further ahead as it was slowing down at the intersection while Mr Foord proceeded through (T 196-197). He was travelling at 60km/hr. Nevertheless, he considered that the defendant's vehicle had stopped: "Q. It pulled up. A. Yes. Q. Now, was that truthful or not, Mr Foord? A. I can't recall. Q. Well, why did you say then that it pulled up and then agreed with me that it had stopped? Did it stop or not? A. I can't remember if it - it came to a complete stop or whether it came to a rolling stop, as they call it, where instead of pulling up where the wheels are completely stopped in position or whether it, like, slowed right down rather. Q. You understand the expression "pulled up", don't you? A. Yes. Q. And when you use the expression "pulled up", what you're conveying is that it had stopped. Correct? A. Yes. Q. And so when you used the expression "pulled up", what you were saying was the Golf had stopped. Correct? A. Yes. Q. Now, given that you're ahead of the Golf during this entire time that you've seen it - do you understand it? A. Yes. Q. You're travelling at 60 kilometres an hour. A. Yes. Q. It slowed down to go into the right turn lane. You're continuing to travel at 60 kilometres an hour. Correct? A. Yes, correct. Q. And then it comes to a stop at the intersection. By the time it's at the intersection, you would be well and truly through the intersection, wouldn't you? A. Yes, I was. I was through the intersection. Q. Through the intersection. Well through the intersection. Past it. Correct? A. No, I was through the intersection. I wouldn't say too much - I wouldn't say I was well through it. I was through it. Q. Well, you were on the other side of the intersection, weren't you? A. I think I was pulling - pulling out of the intersection, yes." (T 198-199) 1. It was put to Mr Foord that what he described was simply not possible: "Q. And it stops. You are still doing 60. Are you suggesting or asking this Court to accept that at the point it stopped in the intersection, you're only just going through or just cleared the intersection? Is that what you're suggesting? A. Yes. Q. It's just not possible, is it, given the differential in speeds between the two of you? Do you accept that? A. I think it is - that - that's my version of events. What I remember is that I was pulling out of the intersection as the Golf had approached to turn. Q. But, Mr Foord, do you accept that it's just not possible given the speed differential over that distance? You're always ahead of it. You've never slowed down at all. You're still doing 60. A. Yeah. Q. It's slowing down into a right turn lane until it gets to a point where it stops. And are you suggesting that at the point it stops in the intersection, you're just through the intersection? A. Yes. Q. It's just not physically possible, I suggest. Is it? If you think about it. A. You can - once you pull out into the left‑hand lane, there's - there's a fair distance for a car to pull up beside you if it's going slightly quicker than you are. Q. Sorry? What left lane? What are you talking about? A. So where the right‑hand turn lane - where - where the lane turns into a right‑hand turn lane, it's quite a distance, and so I - I was still ahead, but only marginally by that point, because I think the car had slightly caught up to me once I'd - once I was in the - 'cause he was turning into the slip through to turn right lane. So I think he'd probably gained - he wasn't - I think he'd probably gained on me rather than be directly behind me like he had when it was one lane. I think he probably pulled up slightly - he had pulled up slightly closer then but was still behind me at that point. Q. So are you suggesting that despite you going straight ahead at 60‑‑ A. Yes. Q. ‑‑and it intending to turn right, it was accelerating? That is, it was going faster than you? A. I - it - it could have been. Q. Well, it must've if you're saying it caught up to you, mustn't it? A. Maybe, yeah, I - yes. Q. It must be the case, mustn't it? So it's accelerating despite it being in the right turn lane and turning right ahead. A. Yes." (T 200) 1. Mr Foord was given a pen and asked to draw where he thought the vehicle was stopped. When it was put to him that the defendant's vehicle did not stop at all, he replied "I don't recall" and said he was "a bit confused" (T 201). He eventually admitted that the defendant's vehicle never proceeded as far into the intersection as he had drawn, to which he agreed (T 201-202). He said it was "a bit hard to draw on a piece of paper", and that he was "under a bit [sic] pressure" (T 202). He acknowledged that when he corrected his drawing it was a very big difference (T 203). I also note that Mr Foord failed to observe the deceased's motorbike braking heavily prior to impact (T 212-213). 2. Although in his evidence in chief, Mr Foord had volunteered that the motorcycle driven by the deceased was attempting to overtake the four-wheel drive in the left-hand turn lane (T 190), he effectively conceded that most of his evidence was wrong. This must cast grave doubts upon his estimates as to the speed of the deceased's vehicle. His evidence cannot corroborate the defendant on any issue, including speed. Conclusions concerning the defendant's speed and overtaking manoeuvre 1. The defendant's submission that the deceased was in contravention of rr 140, 141, and 144 Road Rules 2014 (NSW) cannot be made out on the lay evidence. Each of the witnesses described events and gave estimates inconsistent with the objective evidence such as the skid marks. Mr Healey's evidence was less inconsistent than that of Mr Foord or the defendant, but what evidence he gave is in fact consistent with the analysis of the plaintiff's expert Mr George as to the likely path of the deceased's motorbike. 2. Although not called to give evidence, Constable Wall noted that he had parked his vehicle behind Mr Healey's Landcruiser, which was stationary in lane 2, approximately 20m from the middle of the intersection. As Mr Healey had estimated that his vehicle was 35-40m from the intersection where the accident occurred (see T 180), that must mean that Mr Healey accepts that at the time of his accident, his vehicle would have been adjacent to the traffic island, and that was in fact his evidence at T 185. He accepted, conformably with the experts' evidence, that the deceased's motorbike must have passed his vehicle before the traffic island in those circumstances. Accordingly, although Mr Healey acknowledged doubts about his own testimony, it does in fact support the evidence of the defendant. 3. All of the contemporaneous police investigation records support the analysis of the experts. Mr Healey's evidence also supports this issue. 4. The sole outstanding issue upon which the experts cannot agree is the question of speed. However, as already noted, it is unclear to me what role, if any, the experts say that the deceased's speed played in this incident. All that is submitted is that the deceased was travelling above the speed limit, whereas the "safe and reasonable speed limit" was 60km/hr or below. While I am invited to draw an inference that speed contributed to the collision (written submissions, paragraph (j)), the manner in which speed contributed to the motor vehicle accident must be set out and explained. 5. As to speed, Mr Fitzsimmons submits, and I accept, that the defendant has failed to establish the parameters of the speed at which the deceased was travelling and that the defendant has failed to discharge the onus of proof. There is insufficient reliable evidence to show the speed at which the deceased was travelling. In addition, I was not addressed as to how the defendant's decision to accelerate interacted with the plaintiff's speed. 6. Nor is there any evidence that the deceased was failing to keep a proper lookout. The deceased had completed his overtaking manoeuvre well before the traffic island. Thus, there are no breaches of rr 140, 141 and 144 Road Rules 2014 (NSW). The accident occurred because the defendant's vehicle cut the corner and despite the deceased's motorbike's heavy braking (evidence he was keeping a proper lookout), the accident was unavoidable. At all relevant times, the deceased was travelling wholly in the southbound lane and he commenced his emergency braking well before the intersection. 7. Again, there is no explanation as to how the failure to keep a proper lookout was causative of the accident. The relevant principles of law 1. The relevant provisions are set out at s 138(1) Motor Accidents Compensation Act 1999 (NSW), s 9 Law Reform (Miscellaneous Provisions) Act 1965 (NSW) and ss 3B(2)(a), 5R and 5S Civil Liability Act 2002 (NSW). 2. The defendant submits that the deceased was riding a motorcycle at an excessive speed and/or without keeping a proper lookout to oncoming traffic and/or overtaking in the left-hand turn only lane, which foreseeably give rise to a risk of harm of the kind amounting to contributory negligence (paragraph 24). This is asserted to be based on the lay evidence that the plaintiff was travelling at an excessive speed and that he was overtaking in breach of the pleaded road rules, that he adopted "an unreasonable road position on the roadway" in that he was in the left-hand only lane and that the defendant was put in an "agony of the moment" situation (written submissions, paragraph 26), which caused him to accelerate to try to avoid the crash, a decision the experts agreed contributed to the accident. The defendant submits that damages should be reduced by 50% to allow for contributory negligence. 3. I do not accept these submissions. First, it was not the expert evidence that the defendant failed to observe any danger until 1.8 seconds before the collision; this was the estimate of the experts for the time that the turning manoeuvre would have taken. The expert evidence does not establish that the deceased was incapable of being seen prior to the turning manoeuvre. To the contrary, his position on the roadway should have been clear to the defendant. 4. Then there is the unreliability of the lay evidence. A number of the statements of asserted facts set out by the defendant (written submissions, paragraph 14) were in fact resiled from by Mr Foord and the defendant in cross-examination, which means that their evidence in chief needs to be read in the context of the subsequent admissions. In particular, since all of the evidence points to the deceased travelling wholly in the southbound through-lane, it is hard to see how the defendant could have thought that the motorcycle was turning left onto the bridge when the deceased had already left that lane. 5. All of the evidence points to the collision occurring because the defendant cut the corner, despite the deceased already being in the southbound lane. The defendant has failed to establish the speed at which the deceased was travelling, as the evidence of the lay witnesses is inherently unreliable and the experts are unable to agree. In addition, the defendant has failed to establish what role speed played in the accident. 6. Having regard to the unsatisfactory nature of the defendant's evidence on these issues, the clear and unambiguous objective forensic evidence from the scene of the accident and the unanimity of the experts' reports on most of the relevant issues, I am satisfied that there should be no finding of contributory negligence. 7. It is generally the practice, where a finding of this kind is made, to provide alternate findings in the event that the findings of fact are in error. That is very difficult in the present case because the causative role of speed, if established, has not been identified. The contributory negligence issues in this case are similar to those raised in Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298, where the court set aside a finding of 10% contributory negligence in circumstances where speed was asserted to be one (but not the only) factor. 8. Doing the best I can in those circumstances, and having regard to the relevant principles as set out in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34, the role that the deceased's speed played in the accident occurring could not have been more than a minor contributing factor. The defendant's submission of 50% is excessive, having regard to the conclusions of the experts as to the causes of the accident. I would estimate that contributory negligence percentage at 15%. Non-economic loss and future medical expenses 1. I will not set out in any detail the very distressing evidence the plaintiff gave about the impact of these events, especially the circumstances of her discovery of her husband at the scene of the accident near her home, upon her. She was not cross-examined. All the other heads of damage are agreed, including total loss of future earning capacity. The medical and lay evidence is overwhelming. Neither counsel referred to the medical evidence in their respective submissions other than in the most general manner. 2. I will, however, note the contents of the report prepared by Associate Professor Michael Robertson for the defendant, which was in fact re-served by the plaintiff (see Exhibit A), who not only confirms the diagnosis of chronic post-traumatic stress disorder and a comorbid major depressive disorder entirely due to the motor vehicle accident and considers that her depressive symptoms "have intensified since Dr Bertucen's examination" (report 15 March 2017, page 7). He describes her condition as stabilised, as demonstrating chronic psychopathology, noting only that it "may diminish over time" (page 8 of the report). 3. The factors put as relevant by the defendant are: 1. An assertion that the plaintiff "is responding well to psychological treatment" and that she reports that it helps her (T 70-71). 2. Statements by Dr Bertucen about treatment and about the plaintiff's "psychological rehabilitation" which will be "a matter of time and adequate support (report 7 October 2016 at page 4). 3. Statement by Dr Bertucen that the plaintiff is unemployable for the next 12 to 18 months (report 7 October 2016, page 5). I note, however, that future economic loss has been agreed and the plaintiff is acknowledged on the basis of the medical evidence to be incapable of long-term employment. 4. The oral evidence which demonstrates that the plaintiff has a loving network of family and friends. 1. I will deal with this last point first. One of the plaintiff's two sons Daniel gave evidence and it is clear that they are young men planning to make their lives in an independent fashion, including leaving home, settling into permanent relationships, marrying and working full-time. There is concern by the medical practitioners as to how this will impact upon the plaintiff, given that the lay evidence (which was not the subject of cross-examination) is that all that effectively keeps her alive is her obligations to her two sons. As the plaintiff grows older, her future grows darker, not brighter, and the longer she remains in the emotionally crippled state in which she currently finds herself, the worse she will become. I will not distress the plaintiff by setting out that evidence in any detail beyond noting one example. She recently suddenly cut her hair off. This was volunteered by her to explain her comparatively normal appearance in the witness box, which is due to the intervention of a friend who not only restyled her hair, but was able to colour it. 2. I do not see any kind of early resolution of these issues for the plaintiff of the kind advanced by the defendant in submissions. Associate Professor Michael Robertson's view that she will continue to demonstrate chronic psychopathology must be accepted. 3. Counsel for the defendant has provided me with a list of comparable verdicts. Many of these relate to personal injuries or (as is the case in Zilio v Lane [2009] NSWDC 226) are alternate findings when the plaintiff is unsuccessful on liability. 4. None of the judgments provided to me by the defendant consisted of analysis by the New South Wales Court of Appeal of the correct approach to take. I have, however, been greatly assisted by reading South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 as to the correct method of assessment of non-economic loss, where the competing contentions were 30% and 40% (at [54]). The experts in those proceedings were, however, not speaking with a unanimous voice, as is the case here. I have followed the observations of the Court of Appeal as to the function of a trial judge dealing with such issues and have been guided by this. 5. One of the judgments to which I was referred by the defendant is Kraus v Sartori [2016] NSWDC 102 where Elkaim SC DCJ awarded non-economic loss of $350,000 to a plaintiff who was a severe and chronically psychiatrically ill man whose state was likely to deteriorate over time. He suffered physical injuries as well, from which he had recovered. Elkaim SC DCJ noted that the plaintiff would additionally suffer from aches and pains from time to time as a result of his physical injuries (at [42]). While the plaintiff in those proceedings retained a residual working capacity, his injuries were complicated by the interaction of the physical and mental disabilities that he suffered and this is reflected in the calculation of non-economic loss. 6. Without wishing to derogate from the pain of the plaintiff's suffering, the significant impact of constant chronic pain and the daily humiliations arising from physical disabilities, disfigurement or significant loss of mobility do not form part of her daily life. Nor is she troubled by the mental delusions which were a feature of the disabilities under consideration by Elkaim SC DCJ. Any sum for non-economic loss awarded to the plaintiff should be for a figure proportionate with the nature and extent of the plaintiff's disabilities and how these relate to her ongoing life. 7. That is not to say that the future for the plaintiff, from the obvious concerns of her family and friends, is anything other than bleak. The medical reports confirm this. I consider it more likely than not that the plaintiff will substantially deteriorate in the future. Accordingly, an appropriate figure for non-economic loss is $300,000. Future out-of-pocket expenses 1. The plaintiff claims future out-of-pocket expenses for psychological counselling once a week at $180 per consultation for the next 5 years, by which time it is hoped that the plaintiff will require only one visit every 2 months per year for the rest of her life. One visit per week at $180 per consultation for 5 years amounts to $41,670 whilst 6 visits per year at the same rate for the rest of her life amounts to $14,408. Mr Fitzsimmons acknowledged this was a somewhat artificial estimate, but it is clear that the plaintiff must have this assistance, and that she also requires medication, at least in the short-term. The plaintiff will need to see her general practitioner on a regular basis. It was put to me that she needs to see her doctor once a month ($70 per visit) for the rest of her life. 2. The defendant proposes a buffer of $20,000 for future treatment expenses inclusive of the agreed figure of $1,600 for medication. 3. I agree that a buffer is probably a better approach to the plaintiff's future out-of-pocket expenses but consider $20,000 to be manifestly inadequate, given the level of psychological counselling that the plaintiff will require. A more appropriate figure would be to allow the sum of $50,000 for future out-of-pockets. Schedule of damages 1. The plaintiff is entitled to damages as follows: Non-economic loss $300,000.00 Past economic loss 51,600.00 Past loss of superannuation 5,676.00 Future economic loss 226,576.00 Future loss of superannuation 27,189.00 Past out-of-pocket expenses 3,200.00 Future out-of-pocket expenses 50,000.00 TOTAL $664,241.00 Costs 1. Costs should follow the event. I have granted liberty to apply. Orders 1. I make orders as follows: In respect of the claim for Nervous Shock: 1. Judgment for the plaintiff in the sum of $664,241.00. 2. The defendant to pay the plaintiff's costs. In respect of the claim under the Compensation to Relatives Act: 1. Judgment for the plaintiff in the sum of $780,000 with such sum to be apportioned as follows: (a) Payment of the sum of $762,000.00 to Selina Croizet. (b) Payment of the sum of $6,000.00 to Daniel Croizet. (c) Pursuant to ss 75-77 Civil Procedure Act 2005 (NSW), payment of the sum of $12,000.00 being the sum to which Lewis Croizet is entitled to the Trust Account of the plaintiff's solicitors, Stiles Lawyers, with such sum to be invested in an appropriate Trustee investment by those solicitors and to be paid to Lewis Croizet upon his reaching the age of 18 years old with any appropriate interest earned thereon. 1. Defendant to pay the plaintiff's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2017