District Court New South Wales Medium Neutral Citation: Hyjer v Lopes [2018] NSWDC 8 Hearing dates: 20 November 2017 – 22 November 2017; 14 December 2017 Date of orders: 31 January 2018 Decision date: 31 January 2018 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) Judgment for the plaintiff; (2) The parties are to bring in Short Minutes of Order within seven days reflecting these reasons; (3) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed; (4) Liberty to the parties to approach the court if a different costs order is sought to that set out in (3) above; (5) Exhibits to be returned in 28 days. Catchwords: Torts-negligence-motor vehicle accident-conflicting expert evidence-extent to which the plaintiff's future earning capacity has been affected-approach to the award of a buffer for loss of future earning capacity-question of whether there is a need for future commercial care Legislation Cited: Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Boateng v Dharamdas [2016] NSWCA 183 Calcagno v Dent [2015] NSWDC 308 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Curtis v Harden Shire Council [2014] NSWCA 314 Dent v Calcagno [2016] NSWCA 289 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Logar v Ambulance Service of NSW Sydney Region [2007] NSWCA 274 Manley v Alexander [2005] HCA 79; 80 ALJR 413 Marien v Gardiner [2013] NSWCA 396 Mason v Demasi [2009] NSWCA 227 Miller v Galderisi [2009] NSWCA 353 New South Wales v Moss (2000) 54 NSWLR 536 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 Smith v Alone [2017] NSWCA 287 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths Ltd (2012) 246 CLR 182 Townsend v O'Donnell [2016] NSWCA 288 Wallace v Kam (2013) 250 CLR 375 White v Benjamin [2015] NSWCA 75 Category: Principal judgment Parties: Drew Garrett Hyjer (Plaintiff) Antonio Goncalves Lopes (Defendant) Representation: Counsel: H Halligan (Plaintiff) C Allan (Defendant) Solicitors: Beilby Poulden Costello Lawyers (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2016/00365375 Judgment 1. In these proceedings, the plaintiff, Mr Drew Garrett Hyjer, seeks damages under the Motor Accidents Compensation Act 1999 (NSW) ("the Act") for personal injuries alleged to have been suffered by him as a result of the negligence of the defendant in driving a motor vehicle which collided with the plaintiff's motor vehicle on 28 January 2015. 2. At the relevant time the plaintiff, who is an American citizen, was employed in Sydney in Australia. The plaintiff returned to the United States in 2016 and remains in fulltime employment. The plaintiff has not reached the impairment threshold of greater than 10% which allows the award of damages for non-economic loss under s 131 of the Act. 3. The plaintiff's claim was limited to one for past and future out-of-pocket expenses, a buffer for future loss of earning capacity and an amount for future commercial care. The pleadings 1. The plaintiff relies on a Statement of Claim filed on 6 December 2016. The Statement of Claim pleads that on 28 January 2015 at approximately 8am the plaintiff was driving his motor vehicle and commenced to drive in an easterly direction along Francis Street at Bondi in Sydney. It is pleaded that at that time the defendant was driving a motor vehicle which was a Ford taxi station wagon also in an easterly direction along Francis Street "when he attempted to overtake the Plaintiff's vehicle and he collided at speed with the front section of the Plaintiff's motor vehicle": paragraph 4. It is alleged that as a result of the accident, the plaintiff suffered injury caused by the negligence of the defendant. It is said that the defendant, inter alia, was driving his taxi at an excessive speed, was failing to keep any or any proper lookout, was failing to exercise due and proper care in driving the vehicle and failed to stop, swerve or slow down to avoid the collision. 2. The injuries alleged to the plaintiff were: 1. Whiplash injury to the cervical spine; and 2. Injury to the lower lumbar spine. A very considerable list of continuing disabilities was claimed including continuous headaches, continuous pain and aching in the cervical spine, restriction of movement of the cervical spine, continuous pain and ache in the lumbar spine, restriction of movement of the lumbar spine, inability to lift heavy objects, inability to walk long distances, inability to sit for any lengthy period of time and continual spasm in the cervical and lumbar spine. 1. In the Statement of Claim the plaintiff claims: 1. Past out-of-pocket expenses; 2. Future out-of-pocket expenses; 3. No loss of past earning capacity; 4. A future loss of earning capacity, essentially on a buffer basis; and 5. A future claim on a commercial basis in relation to assistance with very heavy or repetitive domestic tasks. 1. The defendant filed a Defence on 1 March 2017. The defendant disputes liability. The defendant admits that the plaintiff sustained soft tissue injuries to the cervical spine and the lumbar spine in the accident but does not admit the extent of the injuries relied on by the plaintiff in the Statement of Claim: paragraph 5. Contributory negligence is also pleaded. The plaintiff's evidence Photographs taken on the day of the accident 1. Exhibit A in the proceedings was five photographs which the plaintiff stated that he and his wife took on the day of the accident after the accident had occurred. 2. The plaintiff gave evidence that it was raining at the time of and soon after the accident. This is supported in the photographs by the road appearing to be wet and in one photograph by a man carrying a black umbrella. 3. The photographs show extensive damage to the front driver's side of a black motor vehicle identified by the plaintiff as being his motor vehicle including extensive damage to the driver's side door. In the photographs the plaintiff's car appears to have pulled out slightly from the left-hand kerb lane of a two lane street. It shows the plaintiff's car to be on the downward side of a crested hill. The photographs also show a white taxi with moderate damage to the front passenger side fender and front light area. The photographs are generally consistent with the plaintiff's description of how the accident occurred. 4. The plaintiff's oral evidence, which I will discuss in some detail shortly, was to the effect that the force of the collision pushed the plaintiff's car about half a metre. The photographs do not show that the plaintiff's car had exited the kerbside parking location completely. The oral evidence of the plaintiff 1. Oral evidence was given by the plaintiff by video-link. Evidence in chief 1. The plaintiff is currently living in California in the United States of America. He gave evidence that he was born in December 1987 and was thus 30 at the time of the trial. He said he came to Australia for work in October 2012, having secured employment with Caltex Australia Petroleum Pty Ltd ("Caltex"). This was initially as a marketing graduate and then as a business analyst. The plaintiff stated that he had a Bachelor of Arts in Business from University College Berkeley in the United States. 2. In his evidence in chief, the plaintiff indicated that as at the date of the accident, 28 January 2015, he was living with his fiancée and now wife Ms Hyjer (nee Miller) at an apartment in Francis Street in Bondi. 3. In relation to the collision, the plaintiff indicated that he and his fiancée were leaving to go to work. It was just before 8am and there was light rain. He stated that he and his fiancée got into his black motor vehicle which was parked on the left kerb of the street and both fastened their seatbelts. He said that he turned the car on and checked the rear vision mirrors, being the right hand rear vision mirror and the central rear vision mirror. He then put on his indicator and both he and his wife looked around to see that the area was clear. The plaintiff stated that his wife was an "anxious" passenger and she was overly cautious in relation to ensuring that no-one was coming. He said that the road was narrow, it was a two-way street and that cars were parked on both sides. He said that there was a car parked immediately in front of him but there was a car length vacant behind him. Mr Hyjer stated that he saw his wife turning her body around and looking out the rear passenger window of the car. 4. The plaintiff noted that Francis Street faced the ocean in the direction the car was located and the street included a hill with the part where the car was located being on the downward part of the hill below the crest. In cross-examination the plaintiff noted that the crest of the hill was about 50m behind where his car was. The plaintiff indicated that his wife stated to him words to the effect "it is okay to go" and he said he confirmed that as he also was looking to ensure that the coast was clear. As he saw no traffic and he had his blinker on he slowly proceeded to move away from the kerb: T6.30; T7.44. When the car was about at a 45° angle to the kerb, having pulled away from the parking spot, his wife exclaimed "Drew" and a taxi approaching over the hill at what the plaintiff said was "way over the speed limit" in due course collided with his vehicle: T8.4-.15. The plaintiff noted that he could not speed off or reverse in time to avoid the accident and he heard both the impact and also the sound through the closed windows of the taxi skidding, having applied the brakes before the impact of the collision. The plaintiff indicated that he felt a whiplash movement and that he hit his head on the side of the door. He said he was in shock but was concerned for his fiancée who cried out in pain and had started to cry. 5. The plaintiff said that despite the door to the car being damaged in the accident that he was able with some difficulty to open the door and he exited the vehicle. He stated that the taxi reversed after the impact a few metres to allow him to get out. He described the impact as being "big" and that it had caved in the driver's side door and pushed his car: T9.14. 6. The plaintiff said that he then went over to the passenger side where he consoled his wife for a period. After about a minute, he then proceeded to the taxi driver's vehicle. It was raining heavily at the time and he sat in the passenger seat of the taxi. The plaintiff gave evidence that he had a conversation with the taxi driver in words to the following effect: "Driver: "I'm sorry, I'm sorry I couldn't stop." Plaintiff: "You had plenty of room, you had plenty of time to stop. Why didn't you stop?" Driver: "I'm sorry I'm sorry." Plaintiff: "Are you going to exit your vehicle to look at the damage?" Driver: "Now I have to get my light fixed. This is going to ruin my day." (T11.1-.16) 1. The plaintiff said that he exchanged particulars with the driver of the taxi and found out that his name was Mr Lopes. The plaintiff stated that at no time did Mr Lopes suggest to him that he (the plaintiff) had pulled out from the kerb abruptly without warning. He noted that the defendant had apologised for not being able to stop. 2. Soon after, Mr Hyjer said that he attempted to call the emergency number to speak to the police. The operator asked whether he needed an ambulance and when he said he did not he was told that he did not fit the criteria for a police officer to write a report. Mr Lopes then left the scene and the plaintiff drove his wife to Prince of Wales Hospital at Randwick for treatment. He said he was at the hospital for a few hours while his wife had x-rays. 3. The plaintiff noted that his pain "settled in" as the shock wore off: T12.23. He noticed that he had neck/lower back spasms particularly in the lower back. He also noted arm pain going down his left arm. 4. The plaintiff indicated that he took his wife home from the hospital and that he did not go to work that day. The plaintiff gave evidence that he took 14 days annual leave after the accident which he corrected as being the total leave which he took at various times following the accident. In cross-examination, the plaintiff said that he had a few days off after the accident only. 5. The plaintiff was asked whether he noted any difficulties following the accident in his work at Caltex which he said was a desk job. He stated that his back was in spasms and it was difficult for him to sit at the desk for long periods. He said that to relieve it that he had to lie down and also he took pain medication. 6. The plaintiff gave evidence that he saw Dr Aroney, a general practitioner, on 4 February 2015 who referred him to a physiotherapist and for scans. He said that he had five sessions with the physiotherapist. He stated that the physiotherapist worked on his neck and lumbar region, particularly the lower lumbar area on the left side, and his neck and left shoulder. 7. The plaintiff stated that he also saw a Dr Herron who referred him to a sports physician Dr McDonald but he did not see Dr McDonald, as he was not able to afford his services. He stated that he was told that Medicare did not cover Dr McDonald's services. The plaintiff noted that he also took time off on numerous other occasions as a result of his injuries including working a number of half days. He said he would go home and lie down when his condition worsened and take medication. He said that this occurred once a week on average when the pain in his back became worse and he had back spasms and could not stand up or sit for long. He noted that his neck continues to give him problems. 8. The plaintiff stated that some months later he left Caltex and started work for AMP Technologies which was a 'start-up" company. In cross-examination he stated that he obtained this position which was in charge of Asia-Pacific and involved travel, from a family friend. He said the new position required him to be "quite mobile" and to travel. He said he went out of the office frequently to meet people. This also involved driving short distances to attend meetings. The plaintiff claimed that the pain which he had arising from the accident made it more difficult to get in and out of the car and to sit and stand. He said he often gave himself an "early mark" from work about twice a week to go home because of his pain. 9. The plaintiff gave evidence that he left AMP Technologies in about October 2016 after about seven months and returned to the United States. 10. The plaintiff gave evidence that he currently worked for Cushman & Wakefield which dealt with commercial real estate and that he was involved in sales and leasing of industrial and commercial offices. The plaintiff then gave evidence in relation to the printout from Cushman & Wakefield which is Exhibit B. 11. In his new position, the plaintiff gave evidence that he worked between 50 and 55 hours per week from Monday to Friday starting at 7am and continuing to 5 to 6pm. He stated that he was out in the field about 20 hours per week and was required to travel to real estate sites every day up to about 20 miles. He stated that he continued to have difficulties at Cushman in being active and walking around due to pain and spasms in his back and neck. He stated that this pain required him to go home early at least once per week. He said he had self-treatment of lying down and stretching but did not take medication. 12. The plaintiff gave evidence that he had seen a chiropractor and a physiotherapist in the United States but did not have reports from either of the practitioners as they did not want to become involved in an international court case. 13. The plaintiff said that he saw his chiropractor, Mr Gil Jackson, for four sessions in the last eight months particularly when his back had bad spasms. He had paid Mr Jackson $100 per session and gave evidence that the treatment had loosened up his muscular back spasms and it had involved electrical stem therapy and deep tissue massage which had given him benefits each time for a couple of weeks. 14. In relation to the physiotherapist, the plaintiff indicated that he had received free physiotherapy on three occasions from Ms C Stewart at University College Berkeley as a result of a request from his former football coach. This also involved very similar treatment to the chiropractor and included massage therapy and electrical therapy. He said it was difficult to get appointments with the physiotherapist. 15. The plaintiff gave evidence that his performance had been criticised at his current position by the managing director: T30.25. The plaintiff said that his performance in his current job would have been much better if he had not suffered from his accident related injuries as he could have met more clients and made more money: T31.8. It was noted that the plaintiff had only obtained a fee paying commission from 10 clients in the time he had been at Cushman according to Exhibit B. The plaintiff asserted that if he was physically active he would be able to see "closer to 30" and that this would involve 55 to 60 hours per week: T32.9. 16. No evidence was given in the proceedings by anyone from the plaintiff's current employment nor was there any other evidence which would support the plaintiff's assertion. 17. The plaintiff was then asked some questions about problems with domestic chores caused by the accident. He indicated that he had problems cleaning, vacuuming, carrying groceries and bending over since the accident: T34. He stated that in relation to outdoor activities, he had problems putting out the garbage and in cleaning his car. He said he lived in an apartment now and he estimated that he would need four hours of assistance per week. He said that despite him and his wife having physical difficulties they shared the domestic tasks and that they struggled through the tasks doing the best that they could: T35.32. Cross-examination of the plaintiff 1. In cross-examination, the plaintiff was asked numerous questions in relation to the extent and severity of his injuries arising from the accident, the treatment for those injuries and the medical consultations which he had in relation to the injuries. The plaintiff gave evidence that he attended hospital with his wife after the accident and whilst at the hospital he felt pain in his neck and back and referred symptoms in his arm, but conceded that he did not himself seek treatment at the hospital. He stated that his main concern at the time was for his wife and he did not consider that he needed treatment then. He agreed that he did not seek treatment until 4 February 2015 when he went to see Dr Aroney as he did not feel he needed treatment until his condition got worse: T40.29. 2. The plaintiff was then asked questions in relation to the leave he allegedly took after the accident. The plaintiff stated that he did not take 14 days leave immediately after the accident but took a few days leave and took other holidays intermittently when required. This was when the pain was "unbearable": T40.48. It was put to the plaintiff that Caltex's leave records showed that he did not take any time off work after the accident and he said that the records were incorrect. He stated that his manager must not have recorded the leave properly. He denied that he did not take any leave after the accident. 3. The plaintiff was cross-examined in relation to his claim that he could not afford to see a head and neck specialist to whom he had been referred by a general practitioner. He agreed that he was earning $1,200 per week at the time but stated that he was supporting his wife who only worked part-time and earned limited money and was also attending university. It was put to the plaintiff that he did not see Dr Sheu in relation to his condition arising from the accident. He denied this and said that that was one of the reasons he saw her as well as a return of his bronchitis. It was put to him that there was no mention in Dr Sheu's notes of anything to do with complaints in his neck and back but the plaintiff said that that was one of the reasons why he saw Dr Sheu. He agreed that he told Dr Sheu that he had played rugby union in America and was also playing it in Australia but denied saying that he played professional rugby. He stated that Dr Sheu would not provide him with a report. 4. It is noted that there is no reference in the records of Dr Sheu which are part of Exhibit 1, to the plaintiff complaining about his neck or back. However, some caution must be exercised in relying on medical notes: Mason v Demasi [2009] NSWCA 227 at [2]. 5. The plaintiff agreed that at the end of February 2015 he had driven with his wife to Byron Bay to see his wife's family. He stated that they shared the driving and stopped and rested on occasions. He agreed that he did not seek medical attention in Byron Bay but only on his return to Sydney in relation to his bronchitis. He agreed that at the time his bronchitis was more important than his injuries because he had trouble breathing. 6. The plaintiff was cross-examined in relation to his evidence in chief that he had seen a physiotherapist on five occasions in Australia. He said that he paid for the sessions with the same physiotherapist out of his pocket. He denied that he told Dr Bodel that he had only seen a physiotherapist on one occasion. He also denied saying to Dr Bodel that he was unable to have physiotherapy because of funding issues but said that he told Dr Bodel that he could not "continue" to have physiotherapy because of funding issues. The plaintiff said that he had difficulty affording the physiotherapy because it was more than $100 a treatment. The plaintiff also denied that he sought no further attention for his injuries after the first attendance with Dr Aroney and stated that he saw Dr Herron, also in March 2015. 7. The plaintiff was asked questions about why he did not seek more medical attention in relation to the pain he was allegedly suffering from arising from the accident. He said this was because he was receiving some physiotherapy treatment and a regime of home exercises which had been recommended for him. The plaintiff denied that the reason he did not see Dr McDonald as referred by Dr Herron was because he was improving and he said it was because he could not afford the medical consultations: T47.6. 8. The plaintiff agreed that he had gone on a camping holiday in the US in mid-2015 but said this was a family annual gathering and could better be described as "glamping" and was much less rigorous than normal camping. The plaintiff was asked why he did not request financial assistance from his parents for treatment. He said that he had but they were already helping him financially periodically anyway and declined to provide further assistance: T47.42. 9. The plaintiff was asked why he did not consult doctors in the second half of 2015 in relation to his accident injuries. It was put to him that the symptoms were not severe enough to do so. He denied this and said that there was nothing the doctors could do to improve his symptoms and he maintained his regime of home exercises. The plaintiff frankly conceded that he had received no treatment from any general practitioner after the middle of 2015 in relation to the accident injuries. He denied this was because he was not suffering any significant symptoms and said it was also because he could not afford continuing treatment from a physiotherapist. He denied that he was exaggerating the symptoms of his injury as at mid-2015. 10. The plaintiff was cross-examined as to why he left Caltex and then AMP Technologies. He conceded that this was for reasons unconnected to the accident. The plaintiff was cross-examined about his salaries but the cross-examination revealed that the payment from AMP Technologies was in US dollars which was an increase in the salary the plaintiff was paid by Caltex. 11. The plaintiff frankly conceded that he received no medical treatment for his injuries in 2016. He said this was not because the injuries were not troubling him at the time or impacting on his jobs in Australia. 12. The plaintiff was asked a number of questions about the commissions which he earned at his current job with Cushman & Wakefield. He agreed that it took him some months before he received his first commission in April 2017 and that he had to pay back a "draw" of $30,000 before he received further commissions. He agreed also that he was starting to receive increasing commissions and he hoped that his commissions would continue to increase in the future. He stated that he hoped to stay with that company. In giving this evidence the plaintiff was frank and in my view open and honest in his answers. 13. The plaintiff was asked some questions about the alleged difficulties which he had at home performing domestic duties. He said that the difficulties were with cleaning, vacuuming, mopping, cleaning the bathroom, undertaking grocery shopping and other household tasks. He gave evidence that he lived in a two bedroom two bathroom apartment which had both floorboards and carpet. The plaintiff gave evidence that prior to the accident he shared domestic duties with his fiancée and that they continued to share domestic duties now. In relation to shopping for groceries, he agreed that he could and did divide heavy bags so that they were easier to carry. It was put to the plaintiff that he was not going to pay anyone for undertaking cleaning or grocery shopping and he agreed that "at this point" he was not: T61.17. 14. The plaintiff was then asked a number of questions in relation to the accident. The plaintiff stated that he had been living at Francis Street for about six months at the time of the accident. He said that he very rarely drove to work but used the car daily for trips such as going to the shops. He said that the Black Holden Barina motorcar involved in the accident was owned by him and he had it for about one and a half months prior to the accident. Prior to the purchase of the Barina, he said that he and his fiancée had access to his fiancée's father's vehicle which they had driven for about a year. Both the plaintiff and Ms Miller had full licences at the time. 15. The plaintiff agreed that on the morning of the accident there had been heavy rain and that the car had been parked overnight on the street. He agreed that the car windows and the side mirror were wet with rain but gave evidence that neither was foggy. The plaintiff said that the vehicle parked in front of him was about 2 metres in front (T64.5) and he did not have to reverse to exit from the car spot. He agreed that there was a hill further to the west and, as indicated above, the crest of the hill was about 50 metres away (T64.31). He conceded that traffic approaching where his car was located from west of the crest was obscured from his vision (T64.35) and that it was important once he checked that there was no traffic approaching to exit from the parked location without delay. The plaintiff agreed that it was always important to look for approaching traffic. The plaintiff denied that it was important to pull out in a timely fashion if this meant pulling out quickly. He said he pulled out very slowly and cautiously so he could keep an eye on traffic: T65.3-.12. When it was put to him that he had no reason to pull out in a slow and cautious fashion he rejected that and said that he had every reason to be cautious as part of safe driving. He said that there was no delay in pulling out from the parked area but similarly there was no reason to drive out quickly. 16. The plaintiff was cross-examined further in relation to physiotherapy services provided. It was agreed between the parties that the plaintiff attended physiotherapy in Australia on four occasions in March 2015. The plaintiff said that he had attended the chiropractor in America on four occasions since his return to the US and he said that two of these were paid in cash without an invoice and he was provided an invoice for the other two services. The plaintiff appeared to be frank in relation to this matter and I accept his evidence that he had four chiropractor consultations in America despite only having invoices for two of them. 17. In relation to the physiotherapy received in Australia, the plaintiff conceded that he had no further physiotherapy after March 2015. The plaintiff gave evidence that the physiotherapist gave him a regime of home exercises to undertake as he informed the physiotherapist that he was not in a position to afford funding further physiotherapy treatment after March 2015. The plaintiff gave evidence that despite receiving more income at AMP he did not have the available funds because he was not paid for a few months at the end of his service with AMP. Whilst I accept that this was the case, the plaintiff did not start work with AMP Technologies until well after the accident. Although the plaintiff denied that after March 2015 he had recovered from his injuries, I think it likely that the physiotherapy treatment was seen as expensive by the plaintiff, he thought he was improving and that the obtaining of a home exercise regime from the physiotherapist meant that further consultations, although desirable, were not necessary. 18. The plaintiff was further cross-examined in relation to the accident. The cross-examination was in the light of an unsworn statement, a statutory declaration and a motor accident personal injury claim form which the plaintiff had signed. 19. In relation to the unsworn statement dated 10 July 2015 which became Exhibit 3 in the proceedings, the plaintiff confirmed that he had reviewed this and it was correct. 20. Paragraphs 14-23 of the unsworn statement are as follows: "14. Prior to the accident on 28 January 2015 about 8am I left home with my fiancée Rose. I was driving vehicle NSW registration BZ23ZT and Rose was seated in the front passenger seat. I had my vehicle parked directly out the front of my unit block. I was going to drive to work and drop Rose off at Bondi Junction. 15. I started my vehicle and indicated with my right blinker, then looked into my side mirror and over my right shoulder for any traffic. I saw that it was clear. I slowly started pulling out of the parking space and I now had my vehicle positioned in the middle of the road but on an angle. I was just about to start straightening the vehicle when Rose yelled out "Drew". 16. I then looked again in my mirrors and saw a taxi coming towards me from behind me. I braked and stopped assuming that the taxi would either stop or swerve to avoid me. When I first saw the taxi he was at the top of the hill. He had ample time to either stop or swerve to avoid the accident. 17. I heard skidding just prior to the accident. I then felt an impact. The front left portion of the taxi collided with the driver's door of my vehicle. When the taxi impacted with my vehicle the taxi was slightly turned to the right which suggests to me that he tried to swerve at the last second to avoid the accident. 18. The time from when I last looked in my mirrors and when Rose yelled out "Drew" was only a split second. I didn't delay leaving the car space after I last looked in my mirrors. 19. On a scale of 1 to 10 with 1 being minor and 10 being greater, I estimate the impact to be 9. 20. After the accident happened, both our vehicles stopped where the collision had occurred. 21. Upon impact I saw that Rose had hit her left shoulder and the left side of her head on the passenger door and window. I asked Rose if she was alright and she moaned. She was conscious and I heard her also say "Ow" upon impact. She appeared to be in shock and she remained in the vehicle. 22. I got out of my vehicle and walked around to Rose's side to make sure she was alright. I opened the passenger door and she stayed seated in the vehicle. 23. I then went to the taxi driver who was still seated in his vehicle. He said, "I'm sorry, I'm sorry, I couldn't stop." I saw no passengers within his taxi. I said, "Are you going to get out of the car?" He then got out of the taxi and looked at the damage to his car. He wasn't concerned at all with Rose or myself. He then said, "Now it's ruined my day, I have to get the car fixed." I saw that his taxi had a broken left headlight and the front bumper bar was bent." 1. Exhibit 5 in the proceedings was a Statutory Declaration signed by the plaintiff on 18 September 2015. 2. Paragraphs 2 to 9 of that Statutory Declaration are as follows 2. On 28 January 2015, at about 8:00am I left home with my fiancée Rosalie. I was driving vehicle NSW registration number BZ2 3ZT and Rosalie was seated in the front passenger seat. I had my vehicle parked directly out the front of my unit block. I was going to drive to work and drop Rosalie off at Bondi Junction. I started my vehicle and indicated with my right blinker, then looked into my side mirror and over my right shoulder for any traffic approaching from behind. I saw that there was no traffic approaching from the rear and the road was clear. I slowly started pulling out of the parking space and I now had my vehicle positioned in the middle of the road but on an angle. I was just about to start straightening the vehicle, when Rosalie yelled out, "Drew!'. 3. I then looked again in my mirrors and saw a taxi coming towards me from behind me. I braked and slopped assuming that the taxi would either stop or swerve to avoid me. When I first saw the taxi he was at the top of the hill. He had ample time to either stop or swerve to avoid the accident. 4. I heard skidding just prior to the accident. I then felt an impact. The front left portion of the taxi collided with the driver's door of my vehicle. When the taxi impacted with my vehicle, the taxi was slightly turned lo the right which suggests to me that he tried to swerve at the last second to avoid the accident. 5. The time from when I last looked in my mirrors and when Rosalie yelled out, "Drew!" was only a split second. I didn't delay leaving the car space after I last looked in my mirrors. 6. On a scale of 1 to 10 with 1 being minor and 10 being greater. I estimate the impact to be a 9. 7. After the accident happened, both our vehicles stopped where the collision had occurred. 8. Upon impact, I saw that Rosalie hit her left shoulder on the left side of her head on the passenger door and window. I asked Rosalie if she was alright and she moaned. She was conscious and I heard her also say, "Ow" upon impact. She appeared to be in shock and she remained in the vehicle. I got out of my vehicle and walked around to Rosalie's side to make sure that she was alright. I opened the passenger door and she stayed seated in the vehicle. 9. I then went to the taxi driver who was still seated in his vehicle. He said, "I'm sorry, I'm sorry, I couldn't stop". I saw that there were no passengers within his taxi. I said, "Are you going to get out of the car?" He then got out of the taxi and looked at the damage to his car. He wasn't concerned at all with Rosalie or myself. He then said, "Now it's ruined my day, I have to get the car fixed". I saw this taxi had a broken left headlight and the front bumper bar was bent. 1. The Motor Accident Personal Injury Claim Form that became Exhibit 4 in the proceedings had a picture drawn of the accident at question 14. The plaintiff gave evidence in re-examination that this was drawn by his solicitor under his direction. The picture showed that the car had virtually left the kerbside parking lane on the immediate approach of the taxi to it. 2. Question 15 was as follows: "Describe what happened in the accident. Include details of who you believe caused it." The plaintiff replied as follows (the plaintiff gave evidence that this was written by his solicitor but he did not disagree with it): "I was the driver of vehicle reg no B2232T. Rosalie was a front seat passenger. I started the engine, put on the right indicator, looked over my right shoulder, there were no vehicles approaching; looked into the right driver side mirror again no vehicles approaching, and then slowly moved the vehicle out from the kerb, Rosalie Miller my front seat passenger called out, I stopped the vehicle and the taxi vehicle collided heavily with my front driver's side door." 1. These various accounts are in general terms consistent, in my view, with the plaintiff's oral evidence. 2. Mr Hyjer was further cross-examined in relation to the accident. He claimed that when his vehicle pulled out from the kerb in Francis Street that there was a vehicle parked in front of him but not a vehicle parked immediately behind him: see also T7.33. He was shown a diagram which became Exhibit 2 which he agreed he initialled. It was put to him that there was not a car space behind him shown in that diagram. He denied that, and said there was sufficient space in the diagram for there to be a vacant spot behind his car. I accept Mr Hyjer's evidence on this issue as it appears to be consistent with the photographs in Exhibit A numbers two and four (recognising the caution which must be exercised with photographic evidence). There is no suggestion the diagram was drawn to scale. 3. Mr Hyjer indicated that the time period from when his fiancée called out "Drew" until the time of collision was between one and two seconds: T79.16-31. He gave evidence that he stopped the car after seeing the taxi. Mr Hyjer also stated that paragraph 15 of his unsworn 10 July 2015 statement was correct where he states: "I now had my vehicle positioned in the middle of the road but on an angle". 4. Mr Hyjer confirmed that he had fully pulled out from the kerb in his car but it was still at an angle. At one stage Mr Hyjer said that he had reversed his car back before he got out after the collision. Despite asserting that he had given this evidence in chief, he had not. Having regard to the later evidence of Mr Lopes, which I will come to, I accept that the photographs taken of the black car show the general position of the black car at the time of collision, although it may have been pushed a small distance forward and slightly closer to the kerb. 5. Mr Hyjer was asked why his wife saw the taxi approaching before he did. Mr Hyjer gave evidence that after he looked at the mirrors to satisfy himself that there were no vehicles approaching he started pulling out slowly and when his wife yelled out "Drew" he turned around and saw the taxi approaching and immediately braked and stopped his car. He agreed that when he saw the taxi it was about 50 metres away or "maybe less": T88.35. He agreed that he thought the taxi had ample time to stop. 6. Mr Hyjer denied that he had ample time to straighten up and proceed forward to avoid the collision. Although Mr Hyjer was cross-examined heavily in relation to this concept, Mr Hyjer's response that he thought it was not appropriate to continue was in my view the better and more prudent approach to adopt at the time. With the taxi approaching, in my view it was better to stop rather than to proceed out and involve the potential for a collision at a different angle and speed. 7. Mr Hyjer gave evidence that there was only light rain at the point of collision but after the accident the rain became very heavy. He denied that the taxi was not travelling at an excessive speed. Mr Hyjer also denied that he pulled out from the kerb without having his indicator on at all. 8. It was put to Mr Hyjer that he said to the taxi driver that he "did not see you coming." He denied this and denied that his lack of observation of the taxi caused the collision. 9. In re-examination, Mr Hyjer acknowledged that Exhibit 6, the Caltex leave records, did not indicate that he had taken leave after the accident. Despite this, he said that his clear recollection was that he did ask for leave and took some leave immediately after the accident. He said he asked his immediate manager. Mr Hyjer said that at the time, Caltex was going through a large restructure and many employees had been retrenched. This was put forward as a reason why his leave may not have been recorded. 10. In relation to the issue of physiotherapy treatment, Exhibit E which was a letter from CIC Allianz Insurance Ltd dated 18 March 2015 shows that approval was not given as at that time for sessions of physiotherapy by the insurer. Mr Hyjer gave evidence that he did not receive income for the last three months he was at AMP Technologies and he had to take out a loan of $12,000 for living expenses 11. The plaintiff struck me as giving his evidence honestly and to the best of his recollection. I did not gain the impression that he exaggerated his evidence or that he embellished it for the purposes of improving his case. I reject the defendant's attack on his honesty. Mr Hyjer made concessions where appropriate. The plaintiff readily conceded that he and his wife struggled through with their domestic activities after the accident, that the rate of his commissions was improving with his current job, that he hoped they would continue to improve and that he did not consult doctors apart from Dr Bodel in relation to his injuries arising from the accident in the second half of 2015 or in 2016. As the case developed some issues arose as to the accuracy and reliability of aspects of the plaintiff's evidence which I will consider further below. 12. The plaintiff gave evidence that he saw Dr Sheu but this is not referred to in her notes. 13. Although this is a matter to be taken into account, in my view caution should be exercised in placing too much weight on medical notes or in the history set out in medical reports for the reasons set out by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2]. See also Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 at [144]. 14. It may be that the plaintiff was mistaken in relation to what he told Dr Sheu but in my view it is equally possible that the doctor did not record these details. Another possibility is that he accompanied his wife when she saw Dr Sheu and mentioned to the doctor his own problems. Even if the plaintiff is in error in this matter, I do not regard it as substantially affecting his reliability or credit. I did not conclude that he was lying on this issue. The oral evidence of Ms R Hyjer 1. Oral evidence was given in the proceedings by Ms Rosalie Hyjer (also known as Ms Rosalie Miller) who was the plaintiff's fiancée at the time of the collision and later married him in July 2016 before their separate travel to America. 2. Ms Hyjer's evidence in chief, including in relation to the accident, was very similar to that of the plaintiff. She confirmed that their car was parked out the front of their apartment in Francis Street on the day of the accident and they left at about 8am in the morning. Ms Hyjer said that it had been raining in the night and it was lightly sprinkling when they got into their car. She said she was sitting in the passenger seat and she noticed her husband put the blinker on to pull out from the kerb. She gave evidence that she turned around to look out the back window of the car which she always did as she was an anxious passenger and knew that there was a crest at the top of the hill behind the car. She said she wanted to assist her husband to ensure that the way was clear. 3. Ms Hyjer noted that the car started to move out and she said words to the effect "it's all clear, it's all good to go". She said these words were stated by her just as the car was starting to move. She noticed that her husband was also looking behind and the car started to slowly pull away: T102.28. The taxi then came over the hill and she saw it and called out "Drew". She said that she saw that her husband turned around, applied the brakes and the taxi came quite quickly towards the stopped car. Ms Hyjer stated that she maintained eye contact through either the rear window or the rear passenger on the driver's side window until shortly before the car was hit, when she closed her eyes. Ms Hyjer confirmed that she could see clearly out of the window and it was not fogged and there was not heavy rain on the windows. She later gave evidence that a couple of seconds passed after she called out before the collision: T117.20. See also T124.41-125.3. 4. Ms Hyjer gave evidence that the impact of the collision was very hard (T103.18) and it threw her against the side of the car with her hitting her head on the window and causing bruises on her side. She said that she felt the car move, being pushed slightly about a metre or a little less: T103.40. 5. Ms Hyjer gave evidence that after the collision her husband turned to her and asked if she was all right. She said she was crying and he comforted and talked to her. He attempted to get out of the car which was a little difficult because the driver's door had been damaged. She said her husband walked around the car over to her side and opened the passenger door, unbuckled her belt and asked again if she was all right. 6. Ms Hyjer said that the taxi driver did not come to her in the car and that she had no discussion at any time with him. She gave evidence that the taxi driver remained in attendance after the collision for somewhere between 15 and 20 minutes. She heard her husband call the police in her presence, but they did not attend. 7. Ms Hyjer gave evidence that she was in a lot of pain and the plaintiff drove her to the Prince of Wales Hospital to ensure that she was all right. She spent a few hours there. After the accident she sought medical advice and treatment for her injuries and on occasions the plaintiff accompanied her, including to see Dr Sheu. 8. Ms Hyjer said that at the time of the collision she was working part-time during the university semester as she was attending university fulltime. Ms Hyjer confirmed that in the weeks following the accident she took some time off work and that the plaintiff also took some time off including for a few days after the accident which was consistent with the plaintiff's evidence: T107.39. She gave evidence that on occasions she had to come home early from work if her husband was complaining of problems with his back. Ms Hyjer gave evidence that the plaintiff had a lot of trouble during his work at AMP Technologies as he had to go to meetings and was more active and also worked at home on the computer which caused difficulties for him: T108.25. 9. Ms Hyjer confirmed that the plaintiff still had difficulties with his back currently in his work at Cushman & Wakefield and on occasion he had to leave early because of problems with pain. Ms Hyjer said that the plaintiff took painkillers and muscle relaxants as well as using heat packs and they had changed mattresses on their bed to get a more suitable mattress. She also noted that the plaintiff had undertaken exercises to strengthen his back and to relieve the pain and muscle spasms: T109.22. 10. In relation to their current accommodation, they lived in a "good size" apartment in which they shared domestic duties. Ms Hyjer noted that domestic duties were "pretty difficult" for both of them including heavier tasks such as taking out the garbage: T109.47. She said that the domestic duties were taken more slowly by both of them compared to previously to reduce the strain. Ms Hyjer noted that the plaintiff had a car which he used for his work which he washed and vacuumed regularly. 11. Ms Hyjer stated that they would be assisted by domestic help. She noted that they cleaned most days for about 30 minutes and also had to use a laundromat, as they had neither a washer nor a dryer: T109.39. Her figure of 30 minutes per day was domestic tasks for both of them. She indicated that the plaintiff washed his car and vacuumed it with the washing usually occurring weekly. 12. In her evidence in cross-examination, Ms Hyjer confirmed that it was only sprinkling when she and her husband left the apartment on the day of the accident. She said that the windows of the car were not foggy and she had "perfect vision" out of the windows. She noted that the car was parked underneath a tree which gave it some protection from rain. It was put to Ms Hyjer that there was no reason for her to look out of the window to check that there was no traffic coming. She agreed with that but said that she did it anyway as people sped over the hill in the street and cut through the street to go to other areas. She said it was her instinct to always check if there was traffic. Although confirming that there was no reason to check, she said she was a very anxious passenger and while she could not see out the driver's side mirror she could clearly look out the back window and the rear driver's side passenger window. 13. Ms Hyjer confirmed that her husband moved the car out slowly and he did not dart out: T114.49. She also confirmed that she was looking behind her for traffic the whole time out of the rear windows. She confirmed that as the car started to angle out of the kerb her vision was more through the passenger window behind the driver. Ms Hyjer also stated that she could see the plaintiff looking at the mirrors and over his shoulder through her peripheral vision, even though she was focusing on the rear windows. 14. Ms Hyjer said that she saw a car come over the crest of the hill when it was some distance away and she called out words to the effect "Drew, a car": T116.43, T117.16. She said that the collision was a couple of seconds after she said that and not a split second: T117.20. She said the car coming over the hill kept on coming. She assumed it would stop or go around their car but it came straight ahead and collided with their car. She said that the car involved in the collision was going "very fast" and not at a "regular speed". She rejected the suggestion that the taxi was going quite slowly. 15. It was put to Ms Hyjer that the plaintiff had time once he was aware of the taxi to straighten up the car and move off and that he should have undertaken that course. She denied that and said that would be "incredibly dangerous" and not a safe course to adopt: T118.37. She rejected the concept that the most dangerous step was to stop and said that in her view it was the safest option to take. 16. Ms Hyjer gave evidence that the car driven by the plaintiff was already in a lane of travel and had pulled away from the kerb and was about to straighten up. Ms Hyjer was taken to the photos which are Exhibit A. Initially, she stated that her husband reversed his car after the collision and that the photos were taken before he moved the car back: T120.25, T120.36 cf T83.36. At the time she gave this evidence, Ms Hyjer did not have the photographs before her. 17. When the photographs were placed before Ms Hyjer, she gave evidence that the photographs (or at least some of them) appeared to have been taken after their car had been moved: T121.46. Ms Hyjer then gave evidence that some photographs were taken before and some after the car had been moved. Ms Hyjer's evidence on this point was inconsistent and not impressive: see T120.20-123.3. Having regard to all of the evidence from the witnesses and the photographs themselves viewed in the light of that evidence, I accept the evidence of Mr Lopes on this issue that the plaintiff's car was essentially in the position at the time of the collision as shown in the photographs in Exhibit A. 18. Ms Hyjer was asked whether she and her husband went over the events of the accident between themselves. She said that this did not occur straight away as they were shaken. She said after the shock had reduced, they definitely talked about the accident but they did not come to an agreement as to what had occurred as they both had an understanding of what caused the accident: T125.19. 19. I accept this evidence. 20. Ms Hyjer was asked about her attendances with Dr Stephanie Sheu. She confirmed that the plaintiff had been with her a couple of times when she saw Dr Sheu who was being consulted in relation to Ms Hyjer's injuries. 21. It was put to Ms Hyjer that by July 2015, the plaintiff's injury did not appear to be troubling him to any degree. Ms Hyjer denied this. When asked why her husband did not seek more medical treatment in Australia after March 2015, Ms Hyjer said that he would have done so if he could have afforded it. There was then some cross-examination in relation to the household earnings and it was put to Ms Hyjer that based on their earnings they could have afforded to get more medical attention. She denied this and said that at the time she was also obtaining a lot of physiotherapy and could not afford the number of weekly physiotherapy sessions recommended to her (3 sessions per week at $150 per session: T131.50). 22. Ms Hyjer was subject to a fairly extensive cross-examination. Overall, I consider that Ms Hyjer's evidence in cross-examination was substantially consistent with her evidence in chief. I found her to be a careful and thorough witness who appeared to give her evidence honestly and to the best of her ability. I accept her evidence that she was a nervous passenger who had the practice of looking out windows when her husband was driving the car. 23. Some aspects of Ms Hyer's evidence appear to be incorrect. I will consider these aspects of her evidence further below. Evidence of Mr Ford 1. Short oral evidence was given by Mr Ford, the solicitor for the plaintiff. He confirmed that he drew the diagram in the claim form which is Exhibit 4 and that it was not drawn to scale. He also confirmed that he completed the description in paragraph 15 of the claim form. He agreed that he did not take down verbatim what Mr Hyjer had told him in relation to the accident but formulated the narrative himself from what he had been told. 2. Mr Ford gave some evidence in relation to the transfer of the plaintiff's file from his previous solicitors' firm and stated that some of the invoices, particularly for physiotherapy treatment, had apparently been mislaid. He said he could not think of any way in which to locate those invoices. The defendant's evidence 1. Oral evidence was given by the defendant, Mr Antonio Lopes. Mr Lopes is a taxi driver and was driving the vehicle which collided with the plaintiff's car on 28 January 2015 in Francis Street in Bondi. 2. Mr Lopes gave evidence that he was very familiar with the area. When asked what time it was when the collision occurred he said it was in the morning and while it was a while ago he thought it was around 9am. This should be contrasted with Mr Lopes' signed statement which became Exhibit F in the proceedings which indicates that the timing was much closer to 8am. That was also the evidence of Mr and Ms Hyjer. 3. Mr Lopes stated that it was raining heavily which should be contrasted with the evidence of Mr and Ms Hyjer who gave evidence that it had been raining heavily but was only sprinkling when they exited their apartment and entered their motor vehicle. 4. Mr Lopes gave a statement dated 14 March 2015. Mr Lopes states as follows in paragraphs 10 to 14 and 19 to 20 of his statement: "10. About 7.45am on Wednesday 28 January 2015 I acknowledged a job to pick up a fare in Francis Street Bondi but the fare was not there and after a while I left, I was alone in vehicle, I was wearing my seat belt and I was travelling towards Campbell Parade Bondi. I am very familiar with that area and I was travelling downhill at approximately 10-15 kph. It was raining heavily, I had my windscreen wipers on, it was heavily overcast although my vision was clear and there was no traffic on the roadway. 11. The street has parking on either side of the street and there is sufficient room for one lane of traffic in each direction. There was quite a few parked cars on either side of the street. 12. As I was approaching downhill, I was about half way down the hill, when all of a sudden a car that was parked on the left hand side, just pulled out of the kerb, at that time I was probably parallel to the car behind that vehicle which is about 3-4 metres behind. As soon as I saw this car pull out, I hit my brakes immediately, but as I was too close and with the rain my car did not stop in time and the passenger side bumper bar and head light collided with the driver's side front and rear doors of the other vehicle which I believe was a black colour Holden Sedan. 13. Before the impact I had not seen any person in any parked vehicle as I was concentrating on the road, although I know that the vehicle did not activate any right blinker to indicate that he was about to move. 14. When the accident occurred I remained in my taxi as it was raining heavily and I saw that the driver of the Black Holden, who was a male person, got out of his car and approached me at my window. He was getting soaking wet and when he approached me he said, "I didn't see you coming". I said to him, "You should have seen me because before you pull out of the kerb you should make sure that the road is clear. … 19. The impact was not severe but soft. 20. In my opinion the other driver was totally at fault as he did not keep a proper lookout before pulling out of the kerb, I did try to take evasive action by braking but was not able to stop in time." 1. In his oral evidence, Mr Lopes said that he was travelling towards the sea down Francis Street to Campbell Parade. He stated that he was travelling at about 30kph ("even under 30": T138.22) but the limit as far as he was aware was 50kph in the street. When asked why he was travelling 30kph he stated that it was because of the weather. He said it was pouring down and the wipers were operating at full speed. 2. This evidence should be contrasted with paragraph 10 of Mr Lopes' statement in which he states that he was travelling downhill at approximately 10 to 15kph. This, in my view, is a significant difference. Later Mr Lopes stated that he was travelling at a low speed and at or "under 30": T147.23. 3. Mr Lopes said that suddenly the plaintiff's car pulled out with no indicator showing to "the middle of the road" and he could not go to the other side of the car to avoid a collision. He states he hit the brake of the car and slid into the plaintiff's car. It should be noted that the concept of the plaintiff's car being in the middle of the road seems to be inconsistent with the photographs which are part of Exhibit A, which show the plaintiff's car closer to the kerb than the middle of the road, even allowing for the vehicle being moved slightly by the collision: see also T160.13. 4. Mr Lopes confirmed that the location of the collision was around 50 metres from the crest of the hill in Francis Street coming down the hill. Mr Lopes indicated that when he saw the plaintiff's car emerging from the kerb his vehicle was parallel to the second car behind the plaintiff. Later in cross-examination, he said he may have been parallel to the car behind the plaintiff. In paragraph 12 of his signed statement, Mr Lopes states that he was "probably parallel to the car behind [the plaintiff's vehicle] which is about 3-4 metres behind". 5. Mr Lopes said that after the impact he reversed the taxi a short distance to let the plaintiff out of the car. Mr Lopes gave evidence that he had a conversation with the plaintiff to the following effect: Mr Lopes: "You just ruined my day. Now I have to return my car". Plaintiff: "We'll see". T139.14. Mr Lopes denied saying to the plaintiff words the effect: "I'm sorry I could not stop." He said he did not say this because he regarded the accident as being the plaintiff's error. 1. In cross-examination, Mr Lopes was taken to his statement which became Exhibit F and the diagram attached to that statement. He confirmed in cross-examination that at the time of the collision the location of the plaintiff's car in the diagram was accurate. In relation to the speed limit in the street, Mr Lopes said he was not 100% sure that the speed limit was 50kph but said it was normally 50kph for suburban streets and his "best guess" was that the speed limit was 50kph. Mr Lopes said he was "pretty sure" that he was travelling not faster than 30kph but said that he did not have his eye on the speedometer but knew he was well under the speed limit. 2. Mr Lopes confirmed that he was between three and four metres away from the plaintiff's car when he first saw it move. He applied the brakes and his car slid until impact. This evidence was considered later by the experts and rejected. Mr Lopes expressly denied that he was travelling in his vehicle more than 30kph down Francis Street. 3. Mr Lopes confirmed in cross-examination that the distance between the crest of the hill to the point of impact with the plaintiff's car was roughly 50 metres. 4. Mr Lopes was cross-examined in relation to that part of paragraph 10 of his statement which provides that "I was travelling downhill at approximately 10-15kph". It was put to him that he said he was travelling about 30kph in his evidence in chief. Mr Lopes said that he said 30kph "or under" (T147.20) and said that that was the most he was travelling. He denied that he sped up in his taxi from 10 to 15kph to at least 30kph coming down the hill. He said he was sure he was not speeding and not exceeding 30kph: T147.11-148.25 especially T147.32. 5. Mr Lopes was cross-examined in relation to paragraph 12 of his statement where he says "As I was approaching downhill, I was about halfway down the hill" when the plaintiff's car pulled out from the kerb. It was put to him that if the distance from the crest of the hill to the point of collision was 50 metres then halfway down the hill would be 25 metres. Mr Lopes denied that and said he only saw the car about three to four metres away. In re-examination, he clarified the reference to "halfway down the hill" in paragraph 12 of his statement as being halfway from the top of the hill to Campbell Parade, not halfway from the crest of the hill to the point of impact: T160.50-161.4. In oral submissions, counsel for the plaintiff attacked that explanation as clearly wrong. If Mr Lopes was correct in this explanation, "half way down the hill" was where the collision occurred, not either where he first saw the plaintiff pull out or when he applied his brakes. The point of collision was about 50 metres west of Campbell Parade (Exhibit 8, Keramidas report page 12). 6. Mr Lopes denied that the plaintiff moved his car immediately after the collision (T152.36) and also denied that the force of the impact pushed the plaintiff's car to any degree: T152.43. He conceded it may have been pushed it one or two inches. He confirmed in cross-examination that the plaintiff's car as shown in the fourth photo in Exhibit A was in that position at the time of the collision: T160.9-.18. 7. Mr Lopes expressly rejected the plaintiff's version of the conversation where he said he was sorry. 8. Mr Lopes essentially maintained the main aspects of his version of events as set out in his statement apart from the speed he was travelling and his location in relation to other vehicles when he first saw the plaintiff pull out in his car. 9. Mr Lopes appeared to me to be attempting to give his evidence honestly and to the best of his ability. He was somewhat defensive in relation to the accident in my view, which is understandable. He altered aspects of his evidence as set out in the statement signed by him, particularly the speed and his location when he first saw the plaintiff's vehicle vis a vis the other parked cars. I will consider the question of which account of the accident I prefer below in these reasons. The plaintiff's medical evidence 1. The plaintiff gave evidence that immediately following the accident he rang up the emergency number and when informing the operator that an ambulance was not required, was told that the accident did not fall within the relevant categories for police to attend. The plaintiff then proceeded to take his fiancée Ms Miller to the Prince of Wales Hospital at Randwick in Sydney. The evidence shows that the plaintiff himself was not admitted to or examined at the hospital. 2. The plaintiff tendered as Exhibit D in the proceedings a bundle of medical reports and related materials. I will proceed to consider that material. Notes of Dr Theo Aroney 1. Part of the plaintiff's tendered medical records is a referral letter from general practitioner Dr Theo Aroney to a physiotherapist dated 4 February 2015. Together with other materials these establish that the plaintiff saw Dr Aroney on 4 February 2015 which was about a week after the accident. The notes include the following: "One week ago driver MVA. Stationary when rear ended – drivers rear corner. Initially felt a twinge in his lower back. Since, back muscle spasms. Now bilateral lower paralumbar pain. Movement and posture guarded. Right side worse. Also left lower paracervical vert tenderness and left arm tingling/left 3/4/5 finger numbness following whiplash injury one week ago. Requesting physio". 1. The plaintiff is recorded as being referred for a CT of the lumbar spine and a MRI of the cervical spine. Standard painkillers were apparently prescribed. 2. Dr Aroney also signed a medical certificate on 4 February 2015 diagnosing injuries as "neck and lower back whiplash injuries" which he stated as being consistent with the plaintiff's description of the cause of injury. The certificate was given for 28 January 2015 to 6 February 2015. It is noted by Dr Aroney that he has referred the plaintiff for a CT scan of the lumbar area and an MRI scan of the neck as well as a referral to physiotherapy and advice to take analgesia. Report of Dr Helen Scott 1. There is a report by Dr Helen Scott of a CT of the lumbar spine dated 21 February 2015. This notes minor disc protrusions at the L4–5 and L5-S1 levels. There is no suggestion of the nerve roots being impacted in Dr Scott's report. Report of Dr Hazan 1. Included in the plaintiff's material is a report of Dr Georges Hazan, radiologist, of a MRI of the cervical spine dated 24 February 2015. Dr Hazan notes mild canal stenosis between C3 and C7 without distinct nerve root impingement or myelomalacia. Medical certificate of Dr Guy Herron 1. There is a medical certificate dated 17 March 2015 by general practitioner Dr Guy Herron indicating that the plaintiff was being treated for low back pain and neck pain following a motor vehicle accident on 21 January 2015 and that Dr Herron had referred him to Dr Andrew McDonald, sports physician. 2. There is a referral letter from Dr Herron to Dr Andrew McDonald dated 17 March 2015. The plaintiff's history of the motor vehicle accident is noted with a claimed injury to the lower back and cervical spine. Dr Herron notes that the MRI showed that the cervical canal was developmentally narrow and no problems were seen to the lumbar spine on the CT scan. An examination by Dr Herron revealed spasms in the left neck with poor cervical lateral rotation to the left with the plaintiff claiming of tingling in his left hand. Dr Herron also noted left lower back spasms with poor lateral rotation to the left and poor flexion. 3. Dr Herron also noted that the scans showed no disc problems in the lower back and that the cervical spine reports showed some developmental stenosis but no nerve root impingement. It was stated that physiotherapy would commence the next day. Physiotherapy two to three times weekly was noted and that the plaintiff may need sports physician review. 4. The plaintiff indicated in his oral evidence that he was told that he could not claim on Medicare for consultations with Dr McDonald and that is why he did not attend that doctor. Report of Dr James Bodel dated 30 May 2016 1. The plaintiff relied on a report of Dr James Bodel, orthopaedic surgeon, dated 30 May 2016 following an examination on 29 February 2016. 2. In his report, Dr Bodel noted that the plaintiff informed him that he was off work for a few days only after the accident and then returned to his normal role. The doctor notes as follows: "He was at the time travelling in Francis Street in Bondi. The accident occurred at an intersection I understand that the vehicle in which he was travelling was hit on the right-hand side at the level of the driver's door. His vehicle was badly damaged." 1. This summary is incorrect as the evidence establishes that the accident occurred when the plaintiff pulled out in his vehicle from where the vehicle was parked at the kerb and was struck by the defendant's vehicle. 2. The report notes that the plaintiff informed Dr Bodel that he was shocked immediately after the accident and within a brief period of time he began to develop increasing left lower back pain and left buttock pain. It was also noted that the plaintiff attended the Prince of Wales Hospital but did not have a medical examination himself. Dr Bodel states that the plaintiff was offered physiotherapy but was never able to have that because of "funding issues" and that the plaintiff has continued a home based exercise programme. This is slightly inconsistent with the evidence. 3. The plaintiff's complaints were listed by Dr Bodel as: 1. Left sided lower back pain and buttock pain; 2. Prolonged sitting or bending, twisting or lifting can aggravate the pain; 3. He has had neck pain particularly at the base of the neck on the left-hand side; 4. Head down posture or the use of the arms overhead could aggravate the pain; and 5. Rotation of the neck can cause radiating pain down the left arm to the ring and little fingers of the left hand. 1. It was noted that the plaintiff was taking occasional Panadeine Forte but had not yet had any physiotherapy. Dr Bodel noted that the plaintiff's driving tolerance was about an hour and that he struggled with household maintenance and cleaning activities. 2. Dr Bodel expressed the following opinions: 1. The plaintiff was well muscled and there was no spinal deformity. He had tenderness in the trapezius muscles at the base of the neck on the left-hand side with a reduced range of neck flexion, extension and rotation in all directions and this is most restricted to the left; 2. There was discomfort at the extreme of the shoulder movement on the left-hand side and there was some pain in the trapezius muscles on resisted shoulder movement but there was no impingement or instability in the shoulders; 3. There were non-verifiable radicular complaints in the left upper limb particularly with rotational movement of the neck. There was tenderness at the lumbosacral junction on the left side and guarding in that area; 4. The plaintiff had restricted range of lateral bending mainly to the left; 5. There was no evidence of nerve root irritability and no clinical sign of radiculopathy; 6. Dr Bodel expressed the opinion that the plaintiff suffered soft tissue injuries to the neck and the back with non-verifiable radicular complaints to the left arm as a consequence of the motor vehicle accident. The plaintiff's overall prognosis was reasonable but he still had ongoing complaints in the neck and the back and would have flareups of pain from time to time. Dr Bodel did not anticipate any significant deterioration and expressed the view that the plaintiff's clinical condition had stabilised. Further treatment was recommended to include a self-directed home based exercise programme to improve physical fitness levels in the neck and the back. Dr Bodel saw no indication for injections or surgery or for any other invasive test or treatment; 7. Dr Bodel expressed the opinion that the plaintiff was able to continue with his then current occupation as director for AMP Technology indefinitely with full hours of work in his current capacity; 8. Dr Bodel noted no evidence of aggravation of pre-existing pathology; 9. Dr Bodel advised that it would be unwise for the plaintiff to undertake heavy labouring activities and the main limitations on his activities were to avoid repetitive bending, twisting or heavy lifting over above 15 kilograms.; 10. Dr Bodel expressed the opinion that the plaintiff may have flareups of pain from time to time and may need some intermittent physiotherapy and/or chiropractic treatment as well as an exercise based programme to minimise flareups and to optimise recovery; 11. No future or specialist review was recommended as necessary unless there was a significant deterioration in clinical function. Dr Bodel noted that the plaintiff would require some intermittent physiotherapy on an as needs basis to optimise recovery and non-prescription analgesic medication. A self-directed home based exercise programme to strengthen the neck and shoulder girdle areas as well as the back and abdominal area to improve core stability was stated to be "the mainstay of treatment"; 12. In relation to assistance, Dr Bodel stated that in his opinion the plaintiff did not require any ongoing specific domestic assistance at the time of the report nor was it likely to be required in the future. Dr Bodel stated that the plaintiff should be able to cope "quite reasonably with all but very heavy or repetitive tasks." The defendant's medical materials 1. Exhibit 1 in the proceedings were medical materials relied upon by the defendant. These included notes relating to the plaintiff's attendances with other general practitioners in 2015 relating to other complaints where no reference was made to restrictions in the neck or back arising from the accident. 2. Medical records were included from a visit in February 2015 to a Dr Stephanie Sheu. The plaintiff claimed that he had sought treatment from Dr Sheu in relation to his injuries arising from the accident and had sought a report but Dr Sheu said that she did not wish to be involved in a claim. The notes of Dr Sheu for 18 February 2015 include no reference to the accident. 3. Otherwise, the records relied upon by the defendant include the notes of Dr Aroney and records relating to other medical complaints in the period from 2013 to 2015. Findings in relation to the medical evidence 1. The medical evidence, particularly as recorded in the notes of Dr Aroney, is consistent with the plaintiff having a whiplash type injury to his neck and soft tissue injury to his lumbar spine. 2. In the absence of further evidence, I do not regard the reports of Dr Scott and Dr Hazan as establishing that the plaintiff's mild radiculopathy in those reports was caused by the accident. In particular, there is no suggestion that the minor disc protrusions at L4/5 and L5-S1 levels were caused by the accident. There is also no evidence that the plaintiff's nerve roots were relevantly impinged. In relation to the report of Dr Hazan, there is no evidence connecting the mild canal stenosis between C3 and C7 as being linked to the accident. Dr Hazan noted that there was no distinct nerve root impingement in his report. 3. The report of Dr Herron dated 17 March 2015 is consistent with the plaintiff continuing to have problems with his neck and lower back some seven weeks after the accident. 4. Having regard to all of the evidence, I accept the report of Dr Bodel that the plaintiff suffered soft tissue injuries to the neck and back with non-verifiable radicular complaints in the left arm as a consequence of the motor vehicle accident and no accident connected radiculopathy in the neck or back. 5. I also accept the views of Dr Bodel that the plaintiff's condition has stabilised, his overall prognosis is reasonable, there is no suggestion for the need for surgery or further specialist review and that the plaintiff has ongoing complaints in the neck and back which will involve flareups of pain from time to time which will require intermittent physiotherapy as required as well as an exercise based programme to strengthen the affected areas and further analgesia as required. I also accept that the analgesic medication is non-prescription and that the physiotherapy will be required on an as needs basis to optimise the plaintiff's recovery. 6. Overall, I accept that the plaintiff has continuing discomfort in his back and neck with spasms, but that it is not a serious condition which is affecting his working capacity in any significant fashion. The plaintiff's and his wife's evidence of occasional time off work with back complaints is in my view consistent with Dr Bodel's report. The expert traffic evidence Expert report of the defendant 1. The defendant relied on a report of Mr W Keramidas dated 8 September 2017 which became Exhibit 8 in the proceedings. Mr Keramidas is a highly qualified and experienced expert in relation to motor vehicle accidents. Annexed to Mr Keramidas' report is a site diagram and numerous photographs. The site diagram which is Appendix B to his report shows a vertical profile which illustrates the crest of the hill and the downward slope towards Campbell Parade. 2. Mr Keramidas was provided with a number of documents for the purposes of his report including the personal injury claim form, the statement of Mr Lopes dated 14 March 2015, the statement of Mr Hyjer dated 10 July 2015 and Mr Hyjer's statutory declaration dated 18 September 2015. Mr Keramidas also had the report of Mr Joy dated 15 May 2017. 3. In his detailed report, Mr Keramidas expresses the following relevant opinions and conclusions: 1. On page 11 of his report Mr Keramidas notes the photographs taken by the plaintiff annexed to Mr Joy's report. He states that the photographs reproduced by Mr Joy are relied upon by him as part of his analysis. In the course of his evidence, Mr Keramidas also had access to photograph number four in Exhibit A which Mr Lopes stated showed the position of the plaintiff's car after the impact. Mr Keramidas on page 13 of his report notes that the actual pavement width of Francis Street from kerb to kerb was 10.1 metres; 2. Mr Keramidas agreed with Mr Joy's assessment of the damage to the plaintiff's car. He also expressed the view that the damage shown in the photograph of the taxi was consistent with the damage observed to the plaintiff's car; 3. On page 19 of his report Mr Keramidas in Figure 2 to his report shows the point of impact with the rear passenger corner of the plaintiff's car still apparently in the kerb line of park. It should be noted that there was more than adequate room to the right of the plaintiff's car for the taxi to pass, assuming that there was no oncoming traffic. This was later confirmed by both experts; 4. Mr Keramidas identifies the likely impact speed to be somewhere between 10 to 15kph and Mr Joy's 15 kilometre per hour end of range was regarded by Mr Keramidas as "certainly consistent" with his assessment of the impact speed. It was assumed that the plaintiff's car was either stopped or nearly stopped at the time of impact; 5. Mr Keramidas assessed that the plaintiff's car would have been in motion for somewhere in the order of 2.5 seconds prior to impact. This should be compared to Mr Joy's three seconds; 6. The sight-line between the taxi and the plaintiff was in Mr Keramidas' opinion in the order of 50 metres, that is the likely visibility for a driver travelling east towards the impact location. Mr Keramidas expresses the opinion that depending on the speed at which the taxi was travelling (and even if it had been travelling at 60kph), he would have been in view prior to the plaintiff commencing to move off in the plaintiff's car; 7. Mr Keramidas assessed the likely pre-braking speed of the defendant's taxi to be 28 to 36kph (page 27); 8. Mr Keramidas expresses the opinion that it is unlikely that the defendant would have had sufficient time in order to perceive and react to the presence of the plaintiff's car in motion and successfully avoid impact with it; 9. The likely speed of the plaintiff's vehicle prior to the collision was assessed by Mr Keramidas as reaching a maximum potential of 10 to 12kph in the process of merging into the eastbound traffic from a parked position; 10. Mr Keramidas expresses the view that the plaintiff's actions were likely to have caused the collision by virtue of the fact that the taxi was likely to have been in view when he commenced to emerge from his parking spot and therefore he essentially failed to give way to a vehicle travelling along the roadway. If the plaintiff took a long time to merge he was creating an obstruction to eastbound traffic; 11. Mr Keramidas expresses the view that assuming a normal merging manoeuvre by the plaintiff, the defendant did not cause or contribute to the collision as his speed was well below the prevailing speed limit and his response to the movement of the plaintiff's car was carried out in a timely fashion. The view is expressed that the defendant's actions would only have contributed to the collision if at the time he crested the hill the plaintiff's car was already positioned across the eastbound portion of the carriageway and progressed no further; 12. Mr Keramidas says the plaintiff could have taken action to avoid or minimise the severity of the collision by either looking properly or increasing his pace of exit to avoid the accident. Mr Keramidas states that if the defendant had crested the hill and was confronted with the Holden already across the roadway, then a slower approach speed could have further minimised the severity of the collision, although not necessarily avoiding the collision outright. Expert report of the plaintiff 1. The plaintiff relied on an expert report of Mr Alan Joy dated 15 May 2017. Like Mr Keramidas, Mr Joy is a highly qualified expert in traffic engineering and motor accident analysis. 2. His report became Exhibit G in the proceedings. For the purposes of his report, Mr Joy was provided with various material including the statement of Mr Hyjer dated 10 July 2015. He did not have Mr Lopes' statement although he reviewed a copy of it before the finalisation of the conclave report between the experts. 3. After considering the material provided, Mr Joy expressed the following opinions in his report: 1. Mr Joy noted that the speed limit in Francis Street was 50kph. Francis Street is a two-way street with cars parked on each side. Francis Street retains approximately six metres of roadway for traffic movement. Approximately 40 metres west of the accident site a crest exists. The line of sight from the crest of the hill to the impact location was measured as approximately 47 to 50 metres. The former measurement is in Mr Joy's report and the latter measurement was agreed by the experts during their oral evidence; 2. It would have taken approximately 3 seconds from the commencement of the manoeuvre of the plaintiff's vehicle out of the parking location until Mr Hyjer stopped following Ms Hyjer's warning; 3. If it is assumed at that time that the plaintiff could not see the taxi and had concluded that it was "all clear", then the taxi travelling the 50 metres distance in three seconds indicated a speed of at least 60kph: paragraphs 9.5-9.12. Mr Joy estimated the collision speed of the taxi with the plaintiff's car to be probably not more than 15 to 20kph with the taxi braking heavily which indicated that the initial approach speed of the taxi was higher than the average speed of 60kph. In cross-examination, Mr Joy accepted that it was unlikely in the light of the collision speed and the distance, that this speed was correct if the plaintiff could not sight the taxi in his mirror; 4. A speed of no higher than 40kph for the taxi was appropriate in the circumstances; 5. A professional driver in an urban traffic environment such as Francis Street could reasonably be expected to be alert to the possibility of vehicles entering the roadway from the kerbside parking and numerous residential driveways. The collision almost certainly occurred as a result of the taxi travelling at a speed above the prevailing speed limit on approach to the incident site; 6. At speeds below 50kph in the prevailing wet conditions, a reasonably alert driver should have been able to stop the taxi before colliding with the plaintiff's vehicle; 7. The collision almost certainly occurred as a result of the taxi travelling at a speed above the prevailing speed limit on approach to the incident site location or was a result of the taxi driver being inattentive to the roadway ahead or a combination of those matters Conclave report 1. Mr Keramidas and Mr Joy prepared a joint experts' report for the purposes of the proceedings dated 3 November 2017 which became Exhibit H in the proceedings. 2. The two experts in their joint report agreed on a number of matters including: 1. The road geometry including the pavement width, gradient and general condition; 2. The likely skid resistance given the wet road and steepness of the terrain; 3. The nature and severity of the damage to the vehicle; 4. The impact speed range for the taxi being 15kph; 5. The plaintiff's vehicle being stopped or almost stopped at the time of impact; and 6. The approximate available approach sight distance for the taxi driver to see the plaintiff's vehicle signalling and/or pulling out was about 50 metres and similarly, the sight distance to the approaching taxi from Mr Hyjer's position to the taxi's headlights was also 50 metres. 1. The two experts disagreed on a number of matters: 1. Observability - Mr Keramidas' report discounts the visibility of the plaintiff's vehicle or signal being activated before or as he was beginning to pull out. Mr Joy disagrees in all the circumstances including that there was a vacant car space behind the plaintiff's car. Mr Keramidas agrees that if there was a vacant car space behind the plaintiff's car it would make it easier to detect that car and its indicator; 2. Time taken for the plaintiff's car to pull out - Mr Joy says Mr Hyjer was likely to have pulled out cautiously and slowly. A slower movement gives approaching drivers more opportunity to take evasive action. Mr Keramidas agreed with this but suggests that the restricted sightlines should have forced Mr Hyjer to expedite his exiting manoeuvre; 3. Ongoing checking for traffic - Mr Joy expressed the opinion that Mr Hyjer, after checking for approaching eastbound vehicles, would have needed to watch in front at least until clear of the next vehicle in front. Mr Keramidas agrees but notes that if this manoeuvre was slow there should have been an opportunity to Mr Hyjer to maintain at least some surveillance of the roadway behind; 4. The taxi driver's version of his travel speed - Mr Keramidas concedes that the precise speeds and locations quoted by Mr Lopes cannot be correct but are consistent with the incident circumstances; 5. Timing of a last look by Mr Hyjer - Mr Keramidas notes that if the timing of Mr Hyjer's last look prior to moving off as indicated in his statement of 10 July 2015 is accepted, then the time/distance relationship between the Holden black car and the taxi "does not match". That is because whilst the plaintiff claims that he could not see the taxi, the timing and speeds indicate that the taxi was within the view of Mr Hyjer as he commenced to pull out but was not detected by him. 6. Approach speed of the taxi - Mr Joy noted that when Mr Hyjer was pulling out he was readily observable. If that was accepted, then the taxi could have been brought to a stop by Mr Lopes in 24.2 metres from 36kph. Oral evidence of the experts 1. Mr Keramidas and Mr Joy gave oral evidence together in a conclave form. 2. A number of important opinions were expressed by the experts in the course of their oral evidence as follows: 1. Mr Joy was asked to assume that the defendant's evidence was that he first observed the plaintiff pulling out at about three metres away from the point of impact. He was asked whether it was possible for the defendant in those circumstances to have braked sufficiently to cause a skid or a slide (as Mr Lopes alleged in his evidence). Mr Joy said it was not, as the distance between the taxi and the plaintiff's vehicle at the time of the alleged observation would have been too short at that point to allow sufficient reaction time for the defendant to apply the brakes to cause a skid or a slide: T166.31-166.47. Mr Joy said the same answer would apply if the first observation came at four metres: T168.43. This answer had implications for Mr Lopes' evidence and indicates that this part of his evidence was incorrect; 2. Both experts agreed that the distance from the point of collision to the sight line at the crest of the hill was between 47 and 50 metres: T167.3; T176.43; T186.5; T186.20 3. Mr Joy was asked to assume that the moment the defendant first observed the plaintiff's vehicle was halfway between the crest of the hill and the point of impact being 23.5-25 metres. He was asked at what speed the taxi would have to have been travelling in order to avoid the collision. Mr Joy replied that the collision could have been avoided by the defendant acting promptly and applying his brakes promptly and this would have caused the taxi to have halted before the point of impact. The taxi would have had to have been travelling at no more than 30 to 35kph to avoid a collision on these assumptions: T167.5-167.33. Mr Keramidas agreed with this view: T191.48-192.12. It should be noted that the oral evidence of Mr Lopes as set out above was that he was travelling at or under 30kph when he was coming over the crest of the hill (which was contrary to his statement evidence of 10 to 15kph). Mr Joy accordingly concluded that Mr Lopes was travelling at a speed faster than 30 to 35 kmh or the collision was caused by the defendant not being attentive or thinking that he did not need to stop at the time to avoid the car pulling out: T167.35-167.44; 4. Mr Keramidas in point 2 on page 30 of his report, noted that in his view the defendant's vehicle was travelling in the range of 28 to 36kph, with the vehicle under braking, prior to impact. In Mr Joy's opinion this establishes that the plaintiff's vehicle was first observed by the defendant about half way down the hill between the crest and the point of impact. This establishes not only that the defendant's car could not have slid or skidded with the application of brakes as he alleges but also it must have been incorrect that he only saw the plaintiff's vehicle three to four metres prior to the collision: see T168.45-169.40; 5. Mr Joy expressed the opinion that on Mr Keramidas' calculations if the defendant's vehicle had been travelling at 28-36kph prior to the collision and with the impact collision speed being 15kph, the defendant, assuming reasonable reaction times, first perceived the plaintiff's car at a distance of about 23.5-25 metres from the point of impact: T169.35-170.17. This again is inconsistent with Mr Lopes' evidence; 6. Mr Joy was asked questions about the plaintiff avoiding a collision upon sighting the defendant's vehicle by accelerating as opposed to stopping the vehicle: see point 9 on page 31 of Mr Keramidas' report. Mr Joy said that one needed to consider issues relating to how fast the plaintiff's vehicle could accelerate and the plaintiff's assessment of whether sufficient acceleration could be achieved having regard to the fact that it was a front wheel drive vehicle and the presence of rain. Mr Joy said that there was every possibility of the wheels spinning on the road if acceleration was applied as suggested which leaves a risk of some reduction in the level of control of the vehicle: T170.21-171.17; 7. Mr Joy was taken to point 1 on page 4 of the joint report as to the observability of the plaintiff's vehicle. He expressed the opinion that if there was a vacant car space behind the plaintiff's vehicle then the view of the defendant of the plaintiff's car signalling would have been from the crest or slightly before the crest and the defendant would also have had an unimpeded view of the right side of the plaintiff's car as it moved from the kerbside: T171.19-171.31. Neither expert accepted that the plaintiff's indicator being on or off was central to their conclusions. Mr Joy indicated that the indicator being on was significant as it was a warning of intention to move. A plaintiff pulling out represented the plaintiff's car as a potential hazard. However it depended when the indicator was first put in operation: T171.38-171.50. Mr Keramidas agreed with Mr Joy and said it was not a central basis of his opinion that the indicator was not on but the operation of the indicator established a potential hazard. He expressed the opinion that the motion of the plaintiff's vehicle was the trigger point for a response: T172.5-172.12; 8. Mr Keramidas expressed the opinion that it would not have been possible for the defendant to have applied his brakes, assuming he was travelling at 28-36kph if he had first seen the plaintiff's vehicle three to four metres from the point of impact: T173.49-174.21. He expressed the view that the assessment by Mr Lopes of such a distance was clearly an underestimate: T174.10. He said there would have been no slide through the application of brakes at such a distance because of the time needed to react to apply the brakes; 9. Mr Keramidas agreed with Mr Joy's view that the acceleration manoeuvre referred to in point 8 on page 31 of his report may not have been appropriate depending on the time between the first observation by the plaintiff of the taxi and the collision as well as the speed being travelled by the defendant: T174.49-175.17. In answer to the suggestion that it would be a "fairly bold move" to accelerate and the plaintiff was better advised to stay at a stopped position, Mr Keramidas said it depended on the obstacle that the plaintiff's vehicle created, the speed the defendant was travelling and the time for reaction. In particular he said it would be better to be struck from behind than heavily in the driver's door location: T175.31-175.37; 10. Mr Keramidas agreed with counsel for the defendant that if the defendant's vehicle had been travelling more than 60kph then he could not have stopped it to 15kph at the point of collision: T177.12; 11. Mr Keramidas stated that if the car was at a 15° angle then Ms Hyjer could not have seen up the hill 50 metres out of the windows to the rear of the car and this would have been further reduced if the vehicle was not fully out from the kerb: T177.47-178.46; 12. Mr Keramidas' attention was drawn to point 5 on page 5 of the joint report and expressed the view that on the conclusions he had made about the speed of the taxi and the speed of collision, the taxi must have been within the view of Mr Hyjer when he had commenced the manoeuvre of his vehicle to exit from the kerb: T178.48-179.33. Mr Keramidas agreed that it was almost impossible for the defendant's car to have been travelling at 15kph at the time he first sighted the plaintiff's vehicle and that a speed of roughly 30kph or "just under" 30kph were far more plausible: T185.31. After a short adjournment and some further consultation between the experts and the performance of further calculations, Mr Joy and Mr Keramidas in their calculations accepted: a) that if the taxi was travelling at 55kph with the collision at 15kph the time taken over the period of 47 to 50 metres would have been 4.1 seconds, b) at 60kph 4.05 seconds and at c) 36kph 5.4 seconds: T186.48-187.14. On the basis of these calculations and allowing 2.5 to 3 seconds for the manoeuvre to have occurred and for the plaintiff to have braked following his wife's warning, the plaintiff should have had time to see the taxi at the commencement of the manoeuvre before he commenced moving. Both experts agreed with this: T187.16-.26; T194.26-195.12; 13. The plaintiff had indicated that he had his vehicle positioned in the "middle of the road" but on an angle both at the time that he stopped the vehicle and at the time of collision: Exhibit 3 paragraph 15; Exhibit 5 paragraph 2. Both experts stated that the photographic evidence they had seen including the photographs in Exhibit A showed that the plaintiff's vehicle was not in the middle of the road but was closer to the kerb from which the plaintiff was exiting but at an angle: T187.43; T188.26; T189.29; T190.24. Both experts seemed to agree that if the plaintiff's vehicle was located as shown in the fourth photo in Exhibit A, it was not in the middle of the road and it would have been easier (possibly easier according to Mr Keramidas) for the defendant to swerve to avoid the plaintiff's vehicle: T190.10-191.44. Mr Joy qualified his answer to say as long as there were no cars approaching the taxi from the opposite direction; 14. Mr Joy accepted that the speed in his report that he opined the defendant was travelling was likely to be inaccurate because anything above 55kph meant that braking to have a collision speed of 15kph was not possible. He also agreed that this was the position at a speed of 55kph: T193.6-194.14; 15. Both experts agreed that even at 55kph and assuming it took the plaintiff between 2.5 and three seconds to commence to exit, be warned and to stop, the taxi would have been visible by the plaintiff for 1.1-1.6 seconds prior to the plaintiff's exit manoeuvre commencing: . This would increase if the speed of the taxi was reduced to 36kph: T194.26-195.10; T200.11-.36; 16. Both experts accepted that on all of the assumptions that it was impossible for the taxi to have been at the top of the crest and for the plaintiff not to have visibility of it having regard to the distance and the collision speed. Mr Joy's caveat however was that it depended on the time that it took the plaintiff's wife to see the taxi and provide the warning to him: T198.9-199.18; 17. Mr Joy accepted that the option for the defendant to steer evasively to avoid a collision depended on where he was when he first saw the plaintiff emerging from the kerb. It was impossible for either expert to determine the precise location of the defendant's vehicle at this time. Mr Joy noted that consideration had not been given to the other option of the cause of the accident being that the defendant was being inattentive: T202.14-203.45; 18. Mr Joy expressed the opinion that if the taxi was located at the time it stopped in the position in photograph 4 in Exhibit A that there was ample room for the defendant to undertake an overtaking manoeuvre as he had at least four metres plus available to do so. He agreed that this would have been the case even if the plaintiff's car was parked in front of the defendant's taxi as located in the fourth photograph in Exhibit A. Mr Keramidas agreed that there was sufficient room to undertake an overtaking manoeuvre even if the plaintiff's car was in a location in front of where the defendant's taxi was in photograph 4 in Exhibit A: T204.47-205.46. Problems with the Non-expert Evidence 1. The expert evidence raises questions about the accuracy of the evidence of the plaintiff, Ms Hyjer and the defendant. 2. In relation to Mr Hyjer and Ms Hyjer: 1. The experts concluded that Mr Lopes' vehicle was travelling at 15kph at the point of the collision; 2. The expert evidence concludes that Mr Lopes was not exceeding the speed limit of 50kph and was travelling probably at 28-36kph, contrary to the evidence of Mr Hyjer and Ms Hyjer: T194.30; defendant's written submissions paragraphs 16-17; 3. The expert evidence concludes that Mr Hyjer must have been able to see Mr Lopes' vehicle in his rear vision mirror before he commenced his exiting manoeuvre contrary to Mr Hyer's evidence. Ms Hyjer's evidence must also be incorrect that the vision was clear when the manoeuvre commenced: T187.16-.26; T194.26-195.12; 198; 4. The evidence suggests that the taxi could not have been at the crest of the hill when it was first seen by Ms Hyjer or Mr Hyjer, contrary to their evidence: T198. 1. Counsel for the defendant attacked other aspects of the reliability and credit of Mr Hyjer and Ms Hyjer in her written submissions: see in particular paragraphs 25-26, 52, 55-56 and 63. Counsel for the plaintiff submitted that I should find Mr Hyjer and Ms Hyjer to be generally honest and reliable witnesses. 2. Having considered the submissions made by counsel for the defendant, I am not willing to find that Mr Hyjer and Ms Hyjer were either generally unreliable or liars: cf paragraph 25 of the defendant's written submissions. They struck me as honest, straightforward witnesses. However, clearly the matters referred to above require me to carefully consider their evidence and balance it with the other evidence in the case. 3. In relation to the defendant's evidence, there were also difficulties: 1. His position when he first saw the plaintiff's vehicle must be incorrect: T166.31-166.47; T168.43; T174.10; 2. His position when he first braked must be incorrect: T173.49-174.21; 3. His statement evidence of his speed of 10-15kph must be incorrect: T185.31. Submissions 1. The parties relied on detailed written and oral submissions. The defendant submitted there was no liability or in the alternative, that there was contributory negligence which should reduce the plaintiff's damages by 85%. It was submitted that there was no evidence to allow the court to find where the defendant's vehicle was when either he first saw the plaintiff's vehicle or first should have seen the plaintiff's vehicle: written submissions paragraphs 36-38 and oral submissions. The Plaintiff submitted that the defendant was negligent. It was submitted that there was compelling evidence that the defendant's vehicle was at least 25 metres away from the point of impact when he first saw the plaintiff's vehicle emerging/having emerged from the kerb lane and that he was easily able to stop his vehicle and/or safely swerve or overtake and thereby avoid the collision. Factual Findings 1. Having regard to all of the evidence and the submissions made on behalf of the parties, I make the following factual findings: 1. The plaintiff, Mr Drew Hyjer, was born in December 1987. He was 30 at the time of the final hearing and about 27 at the time of the motor vehicle accident on 28 January 2015. At that time, he lived with his then fiancée and now wife, Ms Rosalie Hyjer (nee Miller) at an apartment in Francis Street in Bondi in Sydney; 2. The defendant Mr Lopes was an experienced professional taxi driver and was 75 years of age at the date of the motor vehicle accident: Exhibit F paragraphs 5-6; 3. Both the plaintiff and the defendant were competent and experienced drivers as at the date of the accident; 4. It had been raining during the night prior to the time of the accident. The plaintiff and Ms Hyjer gave evidence that it was lightly raining or sprinkling at the time of the accident and the rain increased in intensity after the accident. Mr Lopes gave evidence that the rain was heavy at the time of the accident. I prefer the evidence of the Plaintiff and Ms Miller on this point as they had to leave their apartment to get into their car and are more likely to remember the heaviness of the rain at the time. I find that it was raining lightly at the time of the accident. However, the difference between the parties does not appear to be relevant; 5. At about 7:45am on 28 January 2015, Mr Lopes acknowledged a job to pick up a taxi fare in Francis Street in Bondi but the traveller was not there and after a short while he left, travelling west in his taxi towards Campbell Parade, Bondi. He was very familiar with the area. Having regard to the fact that Mr Lopes had had a failed fare, with the intended passenger not being there, I think it likely that he would have been keen to leave the area to pursue other fares; 6. Mr Lopes gives evidence in his statement dated 14 March 2015 that he was travelling downhill "at approximately 10-15kph": Exhibit F paragraph 11. In his oral evidence, he changed that version and said that he was not speeding and was travelling at or just under 30kph. This change is significant. The plaintiff and Ms Hyjer suggest that Mr Lopes was speeding and was travelling in excess of the speed limit. The speed limit in the street was 50kph. Having regard to the expert evidence, the concessions of Mr Joy, the joint expert view that the speed at impact was 15kph and the distance from the point of collision to the line of sight at or just prior to the crest of the hill, I find that Mr Lopes was travelling at or slightly under 30kph, consistent with his oral evidence. That speed accords generally, in my view, with the expert evidence and the probabilities having regard to the weather and the need for caution. The claims of excess speed by Mr and Ms Hyjer were based on their perceptions turning around and looking back and in my view are less reliable and not consistent with the expert evidence and I reject them. I accept the defendant's submissions on this point; 7. I accept in general terms the accounts of the plaintiff and Ms Hyjer as to them entering into the Barina vehicle from their apartment, engaging their seatbelts, Mr Hyjer putting on the indicator to exit from the parked kerbside location and Mr Hyjer looking in the central rear vision mirror and the driver's side rear vision mirror for other cars before he caused the car to commence its exiting manoeuvre. I also accept that Ms Hyjer was looking behind to see that there were no vehicles approaching as she was an anxious and cautious passenger as she claims. I also accept that Mr Hyjer caused the car to exit slowly and cautiously and that it took at least 2 ½ to three seconds to begin the manoeuvre until he stopped the vehicle following Ms Hyjer's warning of seeing the defendant's taxi. This is consistent with the expert evidence (T198.38), the evidence of Mr Hyjer and Ms Hyjer and the poor weather. In coming to this finding, I prefer the evidence of Mr Hyjer and Ms Hyjer to that of Mr Lopes who said that no indicator was operated by the plaintiff when he pulled out. Mr Hyjer was an experienced driver and both he and his wife gave unshaken evidence that the indicator was used. I think that this is more likely and I prefer their evidence in this regard to that of Mr Lopes. I also accept the evidence that Mr Hyjer pulled out slowly and cautiously as that is consistent with the weather and the built up conditions in the street; 1. The plaintiff said that he did not see the defendant's vehicle approaching as he commenced his exiting manoeuvre. Ms Hyjer also gave evidence to that effect. Although Ms Hyjer claimed that her vision to the rear was unimpeded, I think it likely that she did not have a fully clear view of the crest of the hill from her seated position as she claims. I prefer Mr Keramidas' evidence in relation to that issue. That is not to say that Ms Hyjer did not have some vision towards the crest of the hill but I do not think it was an unimpeded vision before the car commenced to exit from the kerb. In coming to this conclusion, I take into account the evidence of Mr Hyjer and Ms Hyjer that there was a car space vacant behind them which I accept. Mr Lopes gave no cogent evidence on this issue; 2. In my view, Mr Hyjer failed to see the defendant's taxi approaching when it was in his potential line of sight when he initially checked his mirrors before commencing the exiting procedure. This is more likely with the evidence of the experts that there was clear time available to Mr Hyjer to see the defendant's vehicle approaching having regard to its likely speed in the light of the collision speed and the distance between the line of sight of the taxi and the plaintiff's vehicle with its indicator on; 3. I reject Mr Lopes' evidence that he first saw the plaintiff's vehicle only three to four metres prior to the collision and that he applied the brakes and that the taxi slid or skidded into the plaintiff's vehicle. 4. Both experts are of the view that Mr Lopes would not have had sufficient reaction time from that distance to have applied his brakes to cause a slide or a skid into the plaintiff's vehicle at the expert agreed speed of impact. I find the speed of impact was 15 kph as concluded by the experts. This raises real doubts as to the reliability of Mr Lopes' evidence in relation to when he first saw the plaintiff's car. 5. Accordingly, at the speed I have found Mr Lopes was travelling down the hill in Francis Street before he commenced braking, he was able to see the plaintiff's car well before three to four metres from the point of collision. This is consistent with him having sufficient time to brake. See the table at page 16 of Mr Joy's report. 6. When should he, as a reasonably experienced driver, first have seen the plaintiff's vehicle exiting from the kerb slowly? Based on all the evidence, including the evidence of the experts, and the evidence of Mr and Ms Hyjer as to the exiting manoeuvre (including its time and speed) and the evidence of Mr Lopes, I find that as the plaintiff had the indicator on and as there was a vacant space behind his car, and having regard to the speed at the time of impact and the fact he had time to react to brake, Mr Lopes was reasonably able to see, and should have seen, the plaintiff's car at least 25 metres from the point of collision; 7. In my view, contrary to the defendant's submission, there is clear evidence to support this finding as follows: 1. Both Mr and Ms Hyjer gave evidence which I accept that Mr Hyjer engaged the indicator in his vehicle before he commenced his exiting manoeuvre from the kerbside parking lane; 2. I accept Mr Hyjer's evidence that there was a vacant space behind the plaintiff's car. Both experts accept that this would have assisted Mr Lopes in detecting the vehicle and the plaintiff's vehicle's indicator: Conclave report point 1 page 4; 3. The experts state that while an indicator on a vehicle in a kerbside lane is an indication that would put a driver on alert that there is a potential for a vehicle to undertake an exiting manoeuvre, it is the motion that then generates the trigger point for a response to that vehicle: TT171.33-171.12. However, an indicator would in my view require a driver approaching to pay particular attention to the indicating vehicle; 4. As stated above, I accept Mr Hyjer and Ms Hyjer's evidence that the exiting manoeuvre was undertaken slowly and cautiously. I accept the experts' assessment that this manoeuvre would have taken 2½ to three seconds: T198.35-.38; 5. Mr Hyjer and Ms Hyjer give evidence that Ms Hyjer then saw the taxi and yelled out her husband's name. There must have been a very small passage of time when this occurred: see Mr Joy's comment at T199.15 which I accept; 6. There was then a passage of a couple of seconds from this time until the collision: T8.10; T79.16-31; T102.50; T117.20; T124.41-125.3. To the extent there is a difference between Mr Hyjer and Ms Hyjer on this point, I prefer Ms Hyjer as according to her evidence she was looking at the taxi; 7. Mr Lopes' evidence is clearly wrong as to his location when he braked. He accordingly must have seen the plaintiff's vehicle when he was further towards the crest of the hill; 8. There is the table in Mr Joy's report at page 16 which was reproduced in Mr Keramidas' report at page 29 and the calculations in it which were not questioned. At 30kph the stopping distance would have been less than at 35kph (see column 9) and thus less than 4.1 seconds; 9. There is the fact that Mr Lopes had at least sufficient time to apply his brakes so he had at least the 1.6 seconds perception/reaction time; 10. There is the evidence of Mr Hyjer and Ms Hyjer that when Ms Hyjer saw the taxi it was "at the top of the hill": T8.7; T79.26; T102.33-.40. I approach this evidence with some caution as it appears that the taxi may well have come partly down the hill; 11. The 2½-3 seconds manoeuvre time plus the two seconds until the stop of the plaintiff's vehicle to the collision equals 4.5-5 seconds at least where the plaintiff's vehicle was visible; 12. There is the experts' evidence of the ability of Mr Lopes to stop whilst travelling at 36kph at Conclave report point 6 page 5, T200.29-.50; 13. Mr Lopes' evidence at T161.1 is likely to be wrong as half way down the hill is 50 metres beyond the crest which is the point of impact yet he had sufficient time to react to apply the brakes; 1. As stated, I also accept Ms Hyjer's evidence that as the plaintiff's vehicle began to emerge from its parking spot that she saw the taxi and that she called out to the plaintiff to stop, who then checked his mirrors and turned around and saw the defendant's taxi and decided to apply the brakes and stop his vehicle; 2. I reject the possibility put forward by Mr Keramidas and relied upon by the defendant, that the safest course to adopt in the circumstances was for the plaintiff to accelerate from that stopped position out into the street towards Campbell Parade and proceed promptly down the hill rather than to stop where he was. I prefer the evidence of Mr Joy on this issue and the evidence of the plaintiff and Ms Hyjer that this would have been a potentially dangerous manoeuvre to take. Prompt acceleration in the wet conditions may have caused the wheels of the plaintiff's car to spin and for him to lose control of it. In my view, and I find, the course he adopted to stop his vehicle on seeing the approaching taxi was the appropriate, reasonable and cautious approach to adopt in all the circumstances; 3. In those circumstances, and having regard to my findings that the defendant was travelling at about 30kph or slightly under before braking and was able to see the plaintiff indicating at least 25 metres prior to the point of collision, I find that the defendant, having a clear view of the plaintiff's car with its indicator on, was able to stop his vehicle before a collision. He could also have taken evasive action to avoid a collision: see the evidence above including Exhibit H point 6; T167.32; T171.48; T189.39-.47; T191.48-192.12. There was no evidence before me from any witness that there was any traffic approaching from Campbell Parade up Francis Street at or near the time of the collision. The evidence of both experts was that there was clear room even with parked cars on both sides of the road for the defendant to undertake an overtaking procedure. In addition, I find that the defendant had sufficient room to swerve to avoid a collision; 1. The defendant did not take action to stop his car in time, did not take appropriate evasive action and did not take steps to overtake the plaintiff's car. He could have taken any of those steps but particularly the step of applying his brakes promptly to stop the taxi before the point of impact. As he did not, the defendant must have been, and I find that he was, inattentive and not carefully looking where he was driving; 2. I do not accept the plaintiff's evidence that at the time he stopped the car, he was "in the middle of the road" but at an angle. Mr Lopes gave evidence that the plaintiff's car was as indicated in photograph 4 in Exhibit A and that it may have moved slightly following the impact. I prefer this evidence to that of the plaintiff at T9.16 where he stated that his vehicle probably skidded half a metre just from the impact of the collision. I also reject the evidence of Ms Hyjer that the photographs must have shown the plaintiff's vehicle after it had been moved. There is no cogent evidence which I accept that both vehicles had been moved when the photographs were taken. I accept Mr Lopes' evidence on this point and both experts agreed that they had assumed the photographs were correct and if so, that they did not show the plaintiff's vehicle "in the middle of the road". I think it is unlikely that the plaintiff would have moved his own car prior to taking the photographs as he appears to have been keen to record the incident. If he had moved his vehicle I think he would have moved it more back into the kerbside lane to avoid a continuing obstruction; 3. There were a number of aspects of Mr Lopes' evidence which concerned me. First, in his statement he said that he was travelling downhill at 10-15kph whereas he changed that in his oral evidence to at or just under 30kph. Secondly, he said that he slid or skid into the plaintiff's car after applying the brakes 3-4 metres from the point of impact when he saw the plaintiff suddenly exit. The evidence of both experts was that this was virtually impossible and I reject it. Thirdly, Mr Lopes said that he saw the plaintiff's vehicle for the first time about three to four metres from the point of impact. He initially said that he was "pretty sure [he] was parallel to the second car behind him or even a bit further" (T138.47) but then said that was "probably a mistake" and he was at the second car behind the plaintiff's vehicle: T149.30-.37. The evidence of the experts establishes that is impossible because it would not have permitted the defendant to slow down to an impact speed of 15kph. Fourthly, the defendant gave evidence that he saw the plaintiff "crossing to the middle of the road or getting at least half over the line he was on": T138.24. Mr Lopes gave evidence that the plaintiff's car was in the same position at the point of impact as shown in photograph 4 in Exhibit A which in my view does not show the plaintiff crossing "to the middle of the road". Fifthly, Mr Lopes said that the accident occurred "probably around nine or before nine, somewhere around there" (T137.28), whereas both his statement evidence and the plaintiff's evidence was that the accident happened at around 8am. Mr Lopes said he did not recall whether the plaintiff entered his car: T153.50-T154.5; T157.31. I think the defendant should likely have remembered whether he got in the car due to the potential for a confrontation. The above matters raise issues in relation to Mr Lopes' recollection: see also T154.8-.22. Further, paragraph 15 of Mr Lopes' 14 March 2015 statement suggests that the plaintiff did get into the front passenger seat of the taxi and details were exchanged. At T153.48 Mr Lopes gave evidence that he and the plaintiff "exchanged details outside of the cars"; 1. I do not accept Mr Lopes' evidence that the plaintiff said to him, "I didn't see you coming". I think it is much more likely in the light of my findings that a conversation occurred to the effect given by the plaintiff and as set out in paragraph 23 of his 10 July 2015 statement. The fact that Mr Lopes said "I'm sorry, I'm sorry, I couldn't stop" is not, however, in my opinion, definitive that he accepted he was at fault; 2. I find that the plaintiff and the defendant exchanged details and that the police declined to attend the scene of the accident. The defendant then left. I find that the plaintiff took his fiancée Ms Miller to the Prince of Wales Hospital for a check-up. The fact that the plaintiff himself did not seek medical assistance at the hospital in my view is not decisive as I accept his evidence that he was more concerned in relation to his fiancée's wellbeing. 3. I accept the plaintiff's evidence that he took some time off work after the accident. This was confirmed by his wife who I also accept on this issue. In my view, the plaintiff's absence not being recorded in the Caltex leave records which are Exhibit 6 is not decisive. The plaintiff gave evidence that there had been a major restructure and retrenchments at Caltex at this time and it may well have been that the leave was overlooked to be recorded or notified by the plaintiff's supervisor; 4. I find as it was an agreed fact that the plaintiff attended the Bondi Physiotherapy and Sports Injury Centre on four occasions in March 2015 for physiotherapy. The plaintiff gave evidence that he could not afford further physiotherapy treatment because of its cost. This was heavily challenged by counsel for the defendant. The plaintiff gave evidence that on the last occasion he received advice from his physiotherapist as to a regime of home exercises and strengthening; 5. I was initially sceptical that the plaintiff could not afford further treatment in Australia having regard to his level of income and also Ms Hyjer's income about which she gave evidence. However, in the end, I accept the plaintiff's evidence that he perceived that he could not afford more regular treatment from his physiotherapist having regard to: 1. His wife's injuries where she also was receiving medical treatment and particularly fairly frequent and expensive physiotherapy services (according to her evidence): T132.1; 2. The initial view of the plaintiff that his wife's condition was more serious than his own; 3. The defendant's refusal to approve physiotherapy for the plaintiff as they were "still investigating liability for your claim": see Exhibit E; 4. The fact the plaintiff and Ms Hyjer were renting at the time. The plaintiff also gave the reason that there were problems with him receiving his income from AMP Technologies. However, this was much later than the first part of 2015. I think the plaintiff was concerned in relation to his wife's injuries and although his own injuries were giving him problems, they were improving to some degree and he was dealing with them with the use of analgesia, rest and a home exercise regime as recommended by his physiotherapist. Consideration Duty of care and breach 1. Under s 3B(2)(a) of the Civil Liability Act 2002 (NSW) ("CLA"), Divisions 1-4 and 8 and Part 1A (Negligence) apply to "motor accidents". Accordingly, in determining whether a driver of a motor vehicle has breached his or her duty of care and whether any breach was causative of any injury suffered by a plaintiff in any motor vehicle accident, the court must apply the sections in those divisions including ss 5B, 5C and 5D (relating to causation). 2. It is useful to set out some of the general principles accepted by appellate courts in relation to the obligations which a driver of a motor vehicle owes to others. 3. In Manley v Alexander [2005] HCA 79; 80 ALJR 413 the majority of the High Court stated as follows: "[11] No doubt the appellant's attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path. [12] It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Rd at 4.00 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events." 1. This statement has been referred to with approval in Townsend v O'Donnell [2016] NSWCA 288 at [45]: "[45] First, the appellant did not submit that the primary Judge failed to apply the correct legal principles. Her Honour referred to ss 5B, 5R and 5S of the CL Act and clearly bore those provisions in mind. Her Honour also referred to the observations of the majority of the High Court in Manley v Alexander, where their Honours pointed out that: recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path." 1. A more expansive consideration of the duty owed by drivers was made by Meagher JA (with whom Macfarlan and Emmett JJA agreed) in Marien v Gardiner [2013] NSWCA 396 where his Honour stated as follows at [33]-[37]: "[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B. [34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47–48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1). [35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48 ; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path". [36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle. [37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision." 1. Marien has also been approved recently by the Court of Appeal: Logar v Ambulance Service of NSW Sydney Region [2017] NSWCA 274 at [142]. 2. Accordingly, in my view the defendant owed a duty of care to the plaintiff as another road user to exercise reasonable care in the driving of his motor vehicle as he was proceeding down Francis Street on the morning of the accident. 3. Sections 5B and 5C of the CLA are as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 1. As found above, the plaintiff had put on his indicator to warn of his intention to move out from the kerb parking position; the defendant was proceeding at or under 30kph down Francis Street towards Campbell Parade; the indicator would have warned the defendant of a potential exiting manoeuvre; the plaintiff had moved his vehicle out from the parking position at an angle to the kerb with part of the rear of the vehicle still within the kerb lane when he was alerted to the presence of the defendant's vehicle coming down the hill and he brought his car to a stop; as the defendant was proceeding down the hill at or under 30kph it was lightly raining; the plaintiff had failed to see the defendant's vehicle which had come over the hill when he commenced pulling out from the kerb; and the defendant had failed to see the plaintiff's vehicle even though the indicator was on and the exiting manoeuvre had commenced until he was halfway down the hill from the crest at least 25 metres from the point of collision. 2. The defendant was in my view clearly inattentive and careless in not seeing the plaintiff's vehicle exiting at an angle from the kerb with its indicator on and reacting promptly by applying his brakes. 3. Applying s 5B of the CLA to the facts of the case: 1. The risk of the defendant's vehicle hitting the plaintiff's vehicle and causing injury if the defendant did not stop or take evasive action or overtake the plaintiff's vehicle was clearly a foreseeable risk, being a risk of which the defendant ought to have known; 2. The risk was clearly not insignificant. The plaintiff's vehicle was emerging and it would have been clear to a reasonable person that if the defendant proceeded down the hill in the left hand road lane that his vehicle would come in to collision with the plaintiff's vehicle. The circumstances therefore required him to halt or to take evasive action or to overtake; 3. In all the circumstances, a reasonable person in the defendant's position would have taken the precautions of stopping, taking evasive action or overtaking the plaintiff's vehicle in a slow and cautious manner; 4. There was a high probability that a collision would occur if care was not taken by the defendant; 5. The harm which could have occurred as the driver's door was at an angle partly facing the defendant's vehicle was serious; 6. The burden of taking precautions on the defendant to avoid the risk of harm by stopping his vehicle, swerving or overtaking was not significant; 7. The social utility of the defendant in driving his taxi was not such that the risk of harm created should be excused. 1. The defendant points to Section 5C of the CLA and the statements of Meagher JA in Marien. In my view, the defendant should at least have taken steps to stop his vehicle in all the circumstances. 2. Accordingly, in my view the defendant failed to take reasonable care for the safety of the plaintiff and any passengers in his car having regard to all the circumstances of the case. The standard to apply is an objective and impersonal one and is to be addressed prospectively by reference to what a reasonable driver in the defendant's circumstances would have done. A reasonable driver would clearly have taken at least steps to stop his vehicle and/or swerve and/or overtake the plaintiff's vehicle. 3. Accordingly, I find that there was a breach of the duty of care owed by the defendant to the plaintiff for the reasons which I have given. Causation 1. Sections 5D and 5E of the CLA provide as follows: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 1. Therefore, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. 2. The relevant principles in relation to Section 5D of the CLA are set out in the following cases: Strong v Woolworths Ltd (2012) 246 CLR 182 at [18]; Wallace v Kam (2013) 250 CLR 375 at [16]-[19]; and Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22] per Bathurst CJ at [198], at [197] per Beazley P and at [319]-[324] per Basten JA. 3. The determination of factual causation in accordance with Section 5D(1)(a) of the CLA involves the application of a "but for" test of causation. That is to say, a determination that in accordance with the section that negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd, above, at [18]. 4. The question in the present case is whether the breach of duty of care by the defendant caused the collision and caused the injuries of which the plaintiff complains. But for the breach of duty in the present case the collision would have been avoided and the plaintiff would not have suffered the injuries of which he complains. 5. Accordingly, causation is established. There is no reason why it is not appropriate for the scope of the defendant's liability to extend to the harm so caused: s 5D(1)(b) of the CLA. There is also no reason why responsibility for the harm should not be imposed on the defendant: s 5D(4) of the CLA. Contributory negligence 1. In Calcagno v Dent [2015] NSWDC 308 Mahony DCJ stated the following general principles in relation to contributory negligence under the Act and ss 5R and 5S of the CLA: [87] Contributory negligence in relation to a motor accident is to be determined by application of both s 138 of the Motor (Accidents Compensation) Act 1999 ("MACA") and ss 5R and 5S of the CLA. [88] Section 138 of the MACA provides relevantly as follows: "Contributory negligence — generally (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. … (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage." [89] Division 8 of the CLA is headed "Contributory negligence". It provides: "Standard of contributory negligence 5R (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." [90] In Gordon v Truong [2014] NSWCA 97, Basten JA (Macfarlan JA agreeing), set out the principles applicable in determining contributory negligence by application of s 138 of the MACA and ss 5R and 5S of the CLA as follows: "15 The principles applicable in determining whether a person has been negligent include the "General principles" set out in s 5B. Applying these principles as required by the statute is not without its difficulties. Where the plaintiff and defendant are both drivers in control of similar vehicles, questions of negligence and contributory negligence can readily be assessed according to the same broad standards. However, where the plaintiff is a pedestrian and the defendant a driver of a vehicle, the negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is, generally, to be assessed against a risk of harm to him — or herself. (It is possible that the carelessness of a pedestrian may create a risk of harm to other drivers, for example, if a car is forced to swerve to avoid a pedestrian, but that is not this case). The harm which the motor vehicle is likely cause to the pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind. 16 The purpose of s 5R may be gleaned from the recommendations in the Review of the Law of Negligence: Final Report (September 2002) which are, in this case, reflected in the statute. At par 8.7, the Report stated: Should the law allow people to take less care for their own safety than it requires others to take for their safety? … Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims? 17 The Report then stated at par 8.11: Leading text book writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same. There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendant. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel's view, this approach should not be supported. 18 The penultimate sentence was supported by reference to three judgments in the High Court and two in the South Australian Supreme Court. The comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760at 762–763, are in point. Referring to the South Australian equivalent of the 1965 Act, s 9(1)(b), Murphy J stated: The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision … For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision." [91] The correct application of these principles was further explained in Davis v Swift [2014] NSWCA 458 by Meagher JA (with whom Leeming JA agreed) as follows: "23 Section 138(1) of the MAC Act provides that the 'common law and enacted law as to contributory negligence' apply to an award of damages in respect of a motor accident, except as provided by that section. The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act 1965 (NSW (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility. 24 The starting point is s 9(1) which provides that if the claimant 'suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person' the damages recoverable in respect of the wrong 'are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage'. That description of contributory negligence reflects the common law position that the claimant's lack of care must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21]. 25 The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34 ; 59 ALJR 492 at 494 as follows: The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance. 26 Section 138(3) is in different terms to s 9(1) and the other State provisions based on s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (UK). Whereas those provisions require the Court when assessing what is 'just and equitable' to have regard 'to the claimant's share in the responsibility for the damage', s 138(3) provides: (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. 27 Section 74(3) of the Motor Accidents Act 1988 (NSW) is in the same terms. In Nicholson v Nicholson (1994) 35 NSWLR 308 at 333–334, Mahoney JA suggested a reason for the use of the broader language. The concept of contributory negligence involves the plaintiff's lack of care contributing to the damage. However, the effect of s 74(2) which is in similar terms to s 138(2), is to require a finding of contributory negligence in cases where the act or omission may not have caused or contributed to the damage claimed. Relevantly in that case, s 74(2)(c) required a finding of contributory negligence 'where the injured person … was … not wearing a seat belt as required' by law. That being the position, the broader language may have been used to allow the Court in such cases to recognise that it would be unjust and inequitable, where there was no such causation or contribution, to reduce the damages otherwise recoverable. The remaining members of the Court, Kirby P with Meagher JA agreeing, also held that the finding of contributory negligence required by s 74(2)(c) did not constrain the inquiry as to what was 'just and equitable' or prevent consideration of all of the circumstances, including whether the absence of a seat belt contributed to the damage claimed. 28 In a case that does not involve a finding of contributory negligence made under s 138(2) or deemed fault on the part of the owner or driver, an assessment of what is 'just and equitable in the circumstances of the case' will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek. See the discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180 ; 43 MVR 315 at [54]–[63]. In Joslyn v Berryman [2003] HCA 34 ; 214 CLR 552 at [157] Hayne J considered s 74(3) to require the undertaking of such a comparison: cf Kirby J at [133]]. 29 Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence." [92] More recently, 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. Although the decision of Mahony DCJ was overturned by the Court of Appeal (Dent v Calcagno [2016] NSWCA 289) his Honour's consideration of the principles of contributory negligence was not questioned: see at [58] and [91]. 2. The decision of the Court of Appeal in Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, to which Mahony DCJ referred, was quoted with approval by Gleeson JA (with whom Leeming JA and Davies J agreed) in Boateng v Dharamdas [2016] NSWCA 183 at [129]. 3. Accordingly, under s 5R of the CLA, a court is required in determining whether a person is contributorily negligent to apply the provisions of ss 5B and 5C of the CLA which I have already set out above in relation to the breach question. 4. In the present case, I have found that Mr Hyjer pulled out from the kerb without seeing the defendant driving his car down the hill from the crest of the hill. 5. In my view, this was careless and inattentive of him and he should not have pulled out from the kerb spot until the defendant had passed unless he was of the view that he could safely and clearly complete the manoeuvre before the defendant was close to his vehicle. Having regard to the rain and the fact that he had to pull out slowly from the kerb, in my view this was a very difficult manoeuvre to complete safely in the circumstances. 6. Applying the principles in ss 5B and 5C in determining whether the plaintiff is contributorily negligent: 1. The risk was foreseeable of the defendant potentially not having time to stop his car and was a risk of which Mr Hyjer ought to have known; 2. The risk in my view was not insignificant in all the circumstances having regard to the rainy conditions; 3. In my view, a reasonable person in the position of Mr Hyjer would have taken the precaution of not pulling out from the kerb until the taxi passed; 4. The probability that a collision would have occurred was in my view slight but more than insignificant; 5. A collision was potentially serious as it would hit the side of the car where Mr Hyjer was the driver; 6. The burden of taking precautions to avoid the risk of harm by not pulling out from the kerb was insignificant; 7. The social utility of Mr Hyjer's activity which created the risk was not of a nature as to mean that he should not have taken the steps. 1. Accordingly, in all the circumstances I find that Mr Hyjer did not take reasonable steps for his own safety when he pulled out from the kerb without seeing the defendant's vehicle. 2. Therefore, in my view Mr Hyjer was contributorily negligent. 3. Section 138 of the Act provides as follows "138 Contributory negligence—generally (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. … (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage." 1. I accordingly have to consider the appropriate percentage which I think is just and equitable in the circumstances of the case by which the damages to be recovered by the plaintiff should be reduced. In approaching that task I take into account the principles stated in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 at [8]-[10] concerning relative culpability and causal potency. 2. I take into account all the circumstances of the case including: 1. That the plaintiff's car was black; 2. That it was raining lightly; 3. That the plaintiff had applied his indicator before pulling out from the kerb; 4. The plaintiff pulled out slowly from the kerb; 5. That the plaintiff was obliged to give way to traffic proceeding eastwards down Francis Street; 6. The fact that the defendant's vehicle could be seen by a reasonable person but was not apparently seen by the plaintiff before he started pulling out; 7. The fact that the street was apparently a fairly busy street with traffic cutting through from other areas; 8. The potential for a serious accident; 9. The greater difficulty of the defendant stopping his car because of the rain; 10. The fact that the plaintiff was looking behind him whereas the defendant was facing the plaintiff's vehicle and could see the indicator of the plaintiff on; 11. The fact that the defendant eventually saw the plaintiff and applied his brakes; 12. The fact that the plaintiff stopped on seeing the defendant's vehicle; 13. The distance between the defendant's vehicle and the plaintiff's vehicle when the defendant should have seen the plaintiff's vehicle; 14. The ability of the defendant to stop in time to avoid a collision with the plaintiff's vehicle. 1. To determine what is just and equitable in the circumstances of the case involves, as part of the evaluative process, a comparison of each party's conduct. 2. Taking into account all the circumstances of the case, in my view the conduct of the defendant in all the circumstances was far more significant than that of the plaintiff. The defendant was driving ahead and could see the indicator. He was coming over the crest of the hill and proceeding down the hill and in my view would have had a clear view of the plaintiff's indicator during that process. He was proceeding at a slow speed no doubt because of the weather. Accordingly, in all the circumstances he should have stopped when he saw the plaintiff's vehicle exiting to allow it to continue with the manoeuvre of pulling out from the kerb. There is no evidence that another vehicle was coming the other way or was in the vicinity. 3. Taking into account all the circumstances, in my view the plaintiff's damages should be reduced by 25% on account of his contributory negligence. Damages Introduction 1. It is necessary to now turn to the question of damages. As set out above, I have found that the defendant breached the duty of care which he owed to the plaintiff. It is therefore necessary to consider the various heads of damages applicable. 2. As referred to above, the plaintiff was not assessed as having a greater than 10% whole person impairment as a result of the accident. Thus no damages for non-economic loss are recoverable by him. Past out-of-pocket expenses 1. The parties agreed that the past out-of-pocket expenses were $1,292.15: T207.1. Future out of pocket expenses 1. In relation to future out of pocket expenses, the defendant says the appropriate figure is $1,000 (written submissions paragraph 60) whereas the plaintiff seeks $10,000. 2. As indicated above, I generally accept the conclusions as to the plaintiff's injuries set out in the report of Dr Bodel. There was no specialist orthopaedic surgeon report relied upon by the defendant. 3. There was evidence before me that the plaintiff had consulted a physiotherapist and a chiropractor in the United States on a number of occasions. Exhibit 7 established that the plaintiff had consulted with Mr Gil Jackson on two occasions. However, the plaintiff said that he had consulted Mr Jackson on two other occasions and paid him cash. I accept the plaintiff's evidence in this regard. The plaintiff said he had also been provided free physiotherapy services on a few occasions. 4. In his report dated 30 May 2016, Dr Bodel recommends the following: 1. A self-directed home based exercise programme to improve physical fitness levels of the plaintiff in the neck and the back. In my view, this could be planned for the plaintiff by a physiotherapist in the United States. The plaintiff has already engaged in a home based exercise regime in Australia; 2. Some intermittent physiotherapy and/or chiropractic treatment as needed following the flareups of pain from time to time. Although Dr Bodel uses the words "may need" this is in the context of pain arising in the plaintiff's back and/or neck. See also Dr Bodel's answer to paragraph 15 on page 7 of his report where he states: "He will require some intermittent physiotherapy on an as needs basis to optimise his recovery"; 3. Non-prescription analgesic medication of the type that he is currently taking. 1. The defendant points to the limited physiotherapy and chiropractor services which the plaintiff has actually obtained since the accident. 2. In my view, the defendant's allowance is too low but the plaintiff's allowance is excessive having regard to the plaintiff's limitations and his limited access to physiotherapy and chiropractor services in the 2016-2017 period. 3. There is no direct specific evidence of the cost of these various items in the United States other than Mr Jackson's account. Doing the best I can on the limited evidence before me, I would allow $4,000 for the future for analgesia and physiotherapy/chiropractic services together with the planning of a home based exercise regime as recommended by Dr Bodel. Past loss of earning capacity 1. The plaintiff tendered as Exhibit C in the proceedings an economic loss schedule with pay advice statements and taxation records relating to the plaintiff's employment whilst at Caltex. 2. The plaintiff also sought an amount for past economic loss in his counsel's written submissions (paragraphs 44-46). 3. However, no claim was made for past loss of earning capacity by the plaintiff in his pleading. The claim for past economic loss was not pressed by the plaintiff in final oral submissions. Future loss of earning capacity 1. The defendant opposed any award under this head. The plaintiff sought, in effect, an award of $55,000. 2. The plaintiff tendered in the proceedings as Exhibit B a document on the letterhead of Cushman & Wakefield which is a commercial real estate company. The plaintiff gave evidence that he worked as an employee for Cushman & Wakefield at the time of the final hearing and had been employed by them since October 2016 when he returned to the United States from Australia. 3. Exhibit B shows that the plaintiff, who worked only on a commission and not a salary or salary/commission basis, earned for his company gross commissions of $73,388.17 since his employment commenced of which he received 50% amounting to $36,694.08. The plaintiff confirmed in cross-examination that the 10 transactions for which brokerage commission was received related to either buy/sale transactions or leasehold arrangements. 4. The plaintiff's evidence was that he received this commission (on which he paid about 30% income tax) for working between a 50 and a 55 hour week. He gave evidence that if he was in the same physical condition as he was prior to the accident and did not have his ongoing disabilities arising from the accident, he believed that instead of having only 10 clients from whom he earned commissions he would have had 30 clients but this would have involved him working between 55 and 60 hours per week. 5. There was no evidence before me as to the level of work which Cushman & Wakefield had in the relevant period and whether if the plaintiff was able to physically work harder to his pre-accident capacity, that he would have had more transactions available to him on which to earn commissions and which would have resulted in increased earnings. I was not satisfied from this evidence that it was more probable than not that the plaintiff would have enjoyed the significant increase in clients and earnings which he indicated in his oral evidence. 6. Only a buffer is sought by the plaintiff in the present case for loss of future earning capacity. 7. The award of damages for future loss of earning capacity is governed by s 126 of the Act. Section 126 of the Act provides as follows: "126 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. In New South Wales v Moss (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]-[71] and [84]: [70] First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of "general damages". Like other types of "general damages", as Fullagar J said in Paff v Speed at 559, they are "of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much 'at large'. They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them". In Russell v J Hargreaves & Sons Pty Ltd [1957] QSR 440 at 445, Taylor J said: "Since … it is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly." The field is an "uncertain" one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169, per Street CJ. [71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed at 566, per Windeyer J. Evaluation of the worth of a loss of capacity to earn — of a lost chance to earn — is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis — that the plaintiff will have undiminished capacity — which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. H Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, at 91 [1.9.18], said: "it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act". In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639, Brennan J and Dawson J said: "the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history". They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages …". The majority (Deane J, Gaudron J and McHugh J) in Malec v J C Hutton Pty Ltd said (at 643) that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry — the process of estimation of possibilities — is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender material[s]": Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830; [1962] NSWR 871 at 877, per Evatt CJ, Herron J and Sugerman J. That language, unlike the reference to permitting "guess work or speculation" elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd (1963) 63 SR (NSW) 598 at 607; 80 WN (NSW) 999 at 1006, per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffmann (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259, per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792, per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as "matters of prophecy or judicial guesses" in Paul v Rendell (1981) 55 ALJR 371 at 376; 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570: "when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award." 1. In Sretenovic v Reed [2009] NSWCA 280 McColl JA (with whom Beazley JA agreed) considered the assessment of future loss of earning capacity. Her Honour stated as follows at [79]-[81]: [79] I turn then to the issue of future economic loss. The primary judge's finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent's future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded. [80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412). [81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future". 1. It is clear from the reasoning of the Court of Appeal in Stretenovic that the award of a buffer or cushion is reserved to a situation where the precise loss of the plaintiff is difficult to determine and there is a "smallish risk" that the plaintiff's secure employment prospects will come to an end or the plaintiff's capacity has been clearly reduced but how that will inhibit his or her earning capacity in consequence of the tort-related injury suffered by the plaintiff is uncertain. 2. In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 McColl JA stated the following at [6]-[9]: "[6] The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 ; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows: 84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future", but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present. [7] The award of a buffer for future economic loss in circumstances "where earning capacity has unquestionably been reduced but its extent is difficult to assess" reflects the proposition that, to paraphrase, the want of precise evidence "does not necessarily result in non-recovery of damages": New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant's complaint about the adequacy of the claims assessor's reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is "necessarily impressionistic"; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing). [8] While, as Giles JA said in the Nominal Defendant v Lane (at [67]), "s 126 is presumably intended to promote intellectual rigour", the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour, an element of impression must be involved. The claims assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise. The appellant has not identified any legal error in the award of the buffer. [9] The foregoing should not be seen as a licence to award buffers indiscriminately. Where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer. Each case must turn on its own facts." 1. Basten JA stated the following at paragraphs [27]-[30]: "[27] In summarising a comprehensive review of the principles to be applied in this area, Heydon JA stated in Moss at [87]: The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility. To the extent that this court suggested in Nominal Defendant v Livaja [2011] NSWCA 121 at [39] that hypothetical elements should be established on the balance of probabilities, those statements were wrong and should be disregarded. [28] Structural difficulties with the form of s 126 (and the more generally applicable equivalent provision, namely s 13 of the Civil Liability Act 2002 (NSW)) have been the subject of comment in numerous cases. It has been pointed out that the calculation of future economic loss depends not only upon assumptions about unimpaired future earning capacity, but also upon the extent to which earning capacity is, or is likely to be, diminished as a result of the injury. Section 126 makes no direct reference to the latter limb of the calculation, unless subs (3) is addressed to the broader set of assumptions and not limited to those referred to in subs (1). [29] Further, subs (2) has been understood as referring, at least primarily, to the reduction commonly allowed for "vicissitudes" which, absent particular features warranting some other approach, is usually fixed at 15%. In circumstances where, for example, the employment situation of the claimant is inherently unstable, a greater percentage is allowed. In Amoud v Al Batat [2009] NSWCA 333 I explained my understanding of s 126(2) in the following terms at [25]: Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that "the events concerned might have occurred but for the injury". There is clearly a step between the exercise addressed in subs (1) and that required by subs (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with subs (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by subs (2). [30] The lacuna in s 126 may have occurred because the drafter was following the reasoning in Malec . The adjustment which was required in that case was to take account of the possibility that factors unconnected with the injury might have resulted in the same disability in any event: at 645. That problem aside, there is a point (which may be differently assessed by different courts) beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a "buffer", without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage. The suggestion that such a commonsense approach was precluded by legislation in the form of s 126 was rejected, as noted by the trial judge, in Penrith City Council v Parks [2004] NSWCA 201, by Giles JA at [3]–[5]. Since then, a similar approach has been adopted in at least 20 cases in this court: see, eg, Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [33] (Hodgson JA; Mason P and McColl JA agreeing); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; 172 IR 453; [2008] Aust Torts Rep 81-949, at [84] (McColl JA; Mason P and Beazley JA agreeing); Zreika v New South Wales [2009] NSWCA 99 at [29] (Ipp JA; Beazley and Macfarlan JJA agreeing); Gulic v O'Neill [2011] NSWCA 361 at [67]–[69] (Whealy JA; Campbell JA and James J agreeing). It was not submitted that in principle such a course was not open to the assessor, acting in conformity with s 126. Nor was it contended that s 126 varies general law principles in any material respect. Such a contention would involve a challenge to the reasoning in Penrith City Council at, for example, [58] (McClellan AJA)." 1. Macfarlan JA stated as follows at paragraph [66]-[67]: "[66] I agree with the judgment of Basten JA but add the following observations in relation to the buffer that the assessor awarded in respect of future economic loss. [67] It has been accepted since Penrith City Council v Parks [2004] NSWCA 201 that it is not inconsistent with s 13 of the Civil Liability Act 2002 or the similarly worded s 126 of the Motor Accidents Compensation Act 1999 for a buffer to be awarded to compensate an injured person for the possibility that he or she may suffer economic loss in the future as a result of a loss of capacity to earn income. In Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, Mason P spoke of such an award being usually reserved for "the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future" (at [2])." 1. The issue in the present case is to determine whether there is appropriate evidence establishing a possibility or "smallish risk" that the plaintiff may suffer economic loss in the future as a result of a loss of capacity to earn income. 2. I was not satisfied by the plaintiff's evidence of an assertion that he could have increased his clients threefold if he was not injured and not continuing to suffer physical problems arising from the accident. There was no independent evidence in relation to his current employer or from a senior manager of his current employer to establish this. 3. I accordingly turn to determine whether the award of a buffer as sought is appropriate in all the circumstances. 4. It is difficult to compare the plaintiff's employment at the time of the accident to his current circumstances: 1. In 2015 he was employed in Australia whereas now he is employed in the United States; 2. In 2015 he was paid a salary whereas now he is paid by commission; 3. In 2015 his salary was higher. However, on the commission basis he has the capacity to earn higher wages; 4. In 2015 he was employed by a major corporation; 5. His disabilities now cause him to go home early on occasions and thus restrict his earning activities; 6. I consider it less likely that the plaintiff would consider establishing his own business because of his current difficulties; 7. The plaintiff's current limitations require him sometimes to go home early from his present work. 1. I believe there is a clear possibility that the plaintiff will suffer economic loss in the future as a result of his loss of earning capacity within the above appellate authorities due to the continuing problems which Dr Bodel has identified in his report. On page 6 of his report, Dr Bodel expresses the opinion that the plaintiff should be able to continue with the type of work that he is currently doing into the future and this would include full-time office based work activity with travelling. 2. Since the preparation of Dr Bodel's report, the plaintiff has moved back to the United States and has taken on duties with Cushman & Wakefield, commercial real estate agents. The plaintiff's evidence was that his duties involved him travelling frequently going out to commercial/industrial and office premises in relation to sales and leases. He gave evidence that he found that on occasions this level of activity aggravated his condition in his back and neck which required him to go home early and to rest. 3. Although I have rejected the plaintiff's assertion that if he was in the condition he was in prior to the accident that he would have been able to increase the number of clients so far from which he obtained commissions from 10 to 30, I consider it is appropriate within the authorities that I have set out above to allow a buffer to the plaintiff. 4. Clearly the plaintiff's ongoing pain and restrictions in his back and neck limit him. I think it is likely that he will be limited in the future to some degree if he remains in commercial real estate or similar substantially office based activities where reasonable travel or physical exertion is required. 5. In my view, the impact of the plaintiff's injury and loss of capacity upon the economic benefit from exercising a full earning capacity is difficult to determine. However, it appears clear to me that the plaintiff in his current occupation would be able to apply himself with increased vigour if he was not injured in the accident and did not have his current restrictions. Based on Dr Bodel's report, the plaintiff's current problems are likely to continue for the foreseeable future. Following the injury, the economic effect of the plaintiff's reduced earning capacity cannot be determined other than by adopting the broad approach of a buffer. The approach to assessing such a buffer is necessarily "impressionistic" within the appellate authorities. 6. The assessment must also be made in the following circumstances: 1. After the accident the plaintiff left Caltex because he did not obtain a promotion he sought; 2. After the accident the plaintiff left AMP Technologies because it was having financial difficulties and he was not being paid regularly; 3. He then decided to return to the United States; 4. He obtained the employment with Cushman & Wakefield before he returned to the United States; 5. It was not unreasonable for the plaintiff to take that employment even though it appears to involve slightly greater exertion and less remuneration. The only limitations identified by Dr Bodel in his report were that it would be unwise for the plaintiff to undertake heavy labouring activities and that he should avoid repetitive bending, twisting or heavy lifting over about 15kg. Clearly the plaintiff would not have continued with the work he had in Australia. 1. Taking into account all of the above matters, I think it is appropriate to allow the amount of $50,000 by way of a buffer. This takes into account the continuing restrictions which the plaintiff has as a result of the accident, their effect on his current employment position, the fact that his current employment is reasonable and requires more exertion and further travel and the plaintiff's evidence of the difficulties which he has from time to time in his employment. In my view, an appropriate figure cannot be quantified with precision and the amount proposed as a buffer will compensate the plaintiff for potential economic losses arising from his continuing restrictions into the future. I accept that the plaintiff taking time off for complaints with his neck and his back may have some impact on his future earnings and promotion prospects even though that is difficult of assessment. Commercial care 1. A claim is made by the plaintiff for an award of damages in the sum of $5,000 for commercial care. The defendant opposes any award. 2. The plaintiff gave limited evidence in relation to this issue but stated that he needed assistance with heavier tasks including washing his car. He quantified this need at four hours per week. 3. The evidence is that the plaintiff and his wife complete all domestic duties presently, including grocery shopping, but with some difficulties. 4. The evidence of Ms Hyjer is that they spend about half an hour a day doing domestic duties but this is shared between the two of them. She also gave evidence that the plaintiff washed and vacuumed his car and that sometimes this occurred weekly and sometimes fortnightly. 5. The defendant refers to the report of Dr Bodel which stated that the plaintiff "does not require any specific ongoing domestic assistance now or is it likely to be required in the future." 6. In Miller v Galderisi [2009] NSWCA 353, the Court of Appeal set aside an award of damages for commercial domestic assistance where it held that there was no evidence that the gratuitous assistance being provided to the plaintiff would cease. Accordingly, the Court of Appeal held that there was no evidence that commercial care was necessary. At [18] in Galderisi the Court of Appeal referred to "a need for commercial domestic assistance likely to arise in the future". 7. In White v Benjamin [2015] NSWCA 75 Basten JA (with whom Meagher JA agreed) considered at [85]-[88] for there to be a need to consider the whole of the family circumstances of the plaintiff and the provision of domestic assistance. 8. In the recent case of Smith v Alone [2017] NSWCA 287, Macfarlan JA (with whom Meagher and White JJA agreed) considered in detail the principles relating to commercial care and assistance at [72]–[78]. 9. It is clear in the present case that no gratuitous care was provided to the plaintiff amounting to at least six hours per week and accordingly no recovery can be made for gratuitous care under the Act. 10. In Smith, Macfarlan JA referred to asking the question whether commercial care was "necessary" (at [73]) and whether commercial care would be "needed in the future": at [75]. At [77], his Honour stated that he considered that the appellant in that case had established "a need for commercial care and assistance". 11. Applying those principles to the present case, I do not consider that the plaintiff has established a need for commercial care and thus a need for damages for the provision of future commercial care as he asserts. In coming to this conclusion, I do not regard it as necessary for a plaintiff to establish a "need" for commercial care in circumstances where a plaintiff completes domestic duties with great difficulty or in great pain and over a lengthy period. 12. However, the plaintiff in the present case is only 30. His wife is also young. They are able to complete domestic duties including cleaning, grocery shopping and washing the family car if they assist each other and they pace their work. In those circumstances, I do not consider that it is appropriate to make an award for future commercial care for a need based on the authorities which I have referred to above. Disposition 1. Accordingly, I would allow the following: Past out-of-pocket expenses $1,292.15 Future out-of-pocket expenses $4,000.00 Future loss of earning capacity (buffer) $50,000.00 Future commercial care $0 Total $55,292.15 1. This sum should be reduced by 25% for the contributory negligence found which gives a sum of $41,469.11. 2. The parties should check my calculations and bring in agreed Short Minutes of Order to reflect the damages to be awarded. 3. I accordingly make the following orders: 1. Judgment for the plaintiff; 2. The parties are to bring in Short Minutes of Order within seven days reflecting these reasons; 3. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed; 4. Liberty to the parties to approach the court if a different costs order is sought to that set out in (3) above; 5. Exhibits to be returned in 28 days. ********** 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: 02 February 2018