District Court New South Wales Medium Neutral Citation: Grigoriadis v Sidiropoulos [2019] NSWDC 486 Hearing dates: 6, 7, 8, 9, 10, 13, 14, 15 August; 22, 25 October; 3 December 2018; 8 and 22 February 2019; (close of submissions 22 March 2019) Date of orders: 13 September 2019 Decision date: 13 September 2019 Jurisdiction: Civil Before: Judge Levy SC Decision: See [332] for orders Catchwords: TORTS – negligence – motor vehicle accident – factual findings concerning disputed factual circumstances and related determination of whether the first defendant was negligent and whether there was contributory negligence on the part of the plaintiff; DAMAGES – assessment of claimed heads of damage Legislation Cited: Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5R, s 5S, s 15B Mental Health Act 1990 (NSW), s 29, s 33 Motor Accident Compensation Act 1999 (NSW), s 136, s141B Social Security Act 1991 (Cwth), s 1160, s 1184 Uniform Civil Procedure Rules 2005, r 20.15 Cases Cited: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 Fox v Percy [2003] HCA 22; 214 CLR 118 Insurance Australia Ltd t/as NRMA Insurance v O'Rourke [2017] NSWSC 494 Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 Redding v Lee (1983) 151 CLR 117; [1983] HCA 16 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Todd v Bluescope Steel (AIS) Pty Limited [2006] NSWDDT 33 Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53 Category: Principal judgment Parties: Kiparissia Grigoriadis (Plaintiff) Harry Sidiropoulos (First Defendant) The Nominal Defendant (Second Defendant) Representation: Counsel: Mr E Romaniuk SC with Mr P Macarounas (Plaintiff) Mr R Cavanagh SC with Mr B Wilson (First defendant) Mr J Catsanos (Second defendant) Solicitors: AJB Stevens Lawyers (Plaintiff) Sparke Helmore (First defendant) Moray & Agnew (Second defendant) File Number(s): 2015/281176 Publication restriction: None Judgment Table of Contents Nature of case [1] Parties [2] – [3] Factual content to plaintiff's claim [4] – [7] Defences [8] – [9] Issues [10] – [12] Evidence overview [13] – [20] Transcription issues [21] – [27] Review of the respective factual accounts [28] – [65] Mr Christopher Grigoriadis [29] – [41] Plaintiff, Mrs Kiparissia Grigoriadis [42] – [54] First defendant, Mr Harry Sidiropoulos [55] – [65] Review of expert evidence on liability issues [66] – [155] Mr Jamieson - reports [67] – [72] Dr Gibson - reports [73] – [76] Dr McIntosh - reports [77] – [84] Mr Griffiths - reports [85] – [88] Joint report of liability experts [89] – [90] Concurrent oral evidence from liability experts [91] – [109] Evaluation and findings on liability expert evidence [110] – [154] Utility of expert evidence on liability issues [155] Credibility and reliability of testimony [156] – [177] Mr Grigoriadis [157] – [158] The plaintiff [159] – [168] The first defendant, Mr Sidiropoulos [169] – [177] Survey of relevant records relating to liability [178] – [187] Transcript of the call to 000 Emergency [179] – [181] Ambulance records [182] – [184] Hospital records [185] Recorded histories as to accident circumstances [186] – [187] Factual findings relevant to the issues to be determined [188] – [231] (1) Plaintiff's domestic circumstances [189] (2) Plaintiff's pre-accident health and medical history [190] – [194] (3) Injuries and initial treatment [195] – [206] (4) Subsequent medical and allied assessments [207] (5) Meeting of the psychiatrists and their joint report [208] – [209] (6) Concurrent evidence given by Dr Morse and Dr McClure [210] (7) Evaluation and resolution of matters of conflict in the medical evidence [211] – [212] (8) Disabilities that remain [213] – [217] (9) Domestic effects [218] – [230] (10) Mitigation [231] Issue 1 – Alleged involvement of an unidentified motor vehicle [232] Issue 2 – Circumstances in which plaintiff was injured [233] – [247] Issue 3 – Whether the first defendant was negligent [248] – [269] Issue 4 – Alleged contributory negligence [270] – [279] Issue 5 – Assessment of damages [280] – [329] (a) Non-economic loss [281] – [288] (b) Past personal care and domestic assistance [289] – [302] (c) Future personal care and domestic assistance [303] – [312] (d) Future s 15B damages – care for daughter [313] – [323] (e) Future medical and out-of-pocket expenses [324] – [327] (f) Past out-of-pocket expenses [328] Summary of damages assessment [329] Disposition [330] Costs [331] Orders [332] Nature of case 1. Shortly after 6.00pm on Monday 21 July 2014, the plaintiff, Mrs Kiparissia Grigoriadis, suffered a head injury and a C6/7 fracture of her cervical spine in a street accident that occurred near her home. A timely cervical fusion, which almost did not take place due to her post-injury combative resistance to recommended treatment, fortunately avoided her becoming quadriplegic. The circumstances of the accident remain in substantial dispute between the parties, with each party contending for differing findings of fact. Those positions were based on an array of differing expert opinions which require analysis. The provisions of the Motor Accident Compensation Act 1999 (NSW) ("MAC Act") and the Civil Liability Act 2002 (NSW) ("CL Act") apply to these proceedings. Parties 1. The plaintiff proceeds against the first defendant, Mr Harry Sidiropoulos, the driver of the vehicle from which she had alighted shortly before she was injured. 2. The plaintiff also proceeds against the second defendant, the Nominal Defendant, which was apparently joined because of a liability theory advanced by an expert witness retained by the first defendant. That expert postulated the involvement of an unidentified vehicle in the events of the plaintiff's injury. The possibility of an unidentified vehicle being involved was also the subject of passing reference in the ambulance records and in the hospital clinical notes where the speculative suggestion was made that the plaintiff sustained her injuries in a "hit and run" accident. Factual context to plaintiff's claim 1. On the afternoon in question, the plaintiff had been shopping, attended a medical consultation, and then attended at a café known as the Greek club in Harris Park. She was later driven to her home in Hammers Road, Northmead, by the first defendant, Mr Harry Sidiropoulos. Beforehand, the proprietor had arranged for the first defendant to drive himself and the plaintiff to their homes because it was closing time, the weather was inclement, and there was a delay in obtaining taxi transport home. 2. The plaintiff claims that when the first defendant's vehicle stopped in her street near her home, she alighted from the rear passenger's side and then closed the rear passenger door. The plaintiff claims that at the time, unbeknown to the first defendant, and also unbeknown to her, a corner of her knee length leather outer garment, variously referred to as a coat or a jacket, had become caught in the closed door of the vehicle from which she had just alighted. The plaintiff claims that after the vehicle door had closed, the first defendant then drove his vehicle away, and in the process, she was dragged along by the vehicle, for some distance. 3. The plaintiff claims that in those events, whilst she was for a short time still able to remain on her feet, she had attempted to run to keep up with the moving vehicle, and in the process, she had resorted to hitting the passenger side window with her hand in an unsuccessful attempt to try and attract the attention of the first defendant for him to stop the vehicle. 4. The plaintiff said that at some stage in those events, she hit her head on the side of the vehicle, and she later somehow became disentangled from her coat. In these events her coat also became free from the door of the vehicle, she fell to the roadway, thereby sustaining multiple physical injuries. But for a surgical fusion of an unstable life-threatening fracture to her cervical spine, the outcome of those events could have been very much different. Defences 1. The first defendant denied the factual correctness of the plaintiff's account of the events of the accident as summarised above. Instead, on his behalf, it was postulated that the plaintiff's injuries could have been due to her having simply fallen down onto the roadway, or that her fall was perhaps due to the involvement of an unidentified motor vehicle. 2. Consequent upon that latter assertion, as an alternative liability case, the plaintiff joined the Nominal Defendant as the second defendant to the proceedings. The second defendant denied the involvement of an unidentified motor vehicle, and maintained that version of events was implausible. Issues 1. The resolution of the disputed factual circumstances in which the plaintiff's injuries occurred must be determined according to the assessment of the credibility and reliability of the testimony of several witnesses. That task presents some difficulty in this case because of the content of some historical accounts of a number of unrelated adverse events in the plaintiff's past life and circumstances. Those matters mentioned in the voluminous documentary exhibits have led the first defendant to make substantial challenges to the credibility and the reliability of the plaintiff's testimony. This is a matter to which I shall return after reviewing the array of factual and expert evidence. 2. Apart from those matters of credit, the central issues calling for decision may be conveniently identified as follows: 1. Whether an unidentified motor vehicle was involved in the circumstances of the accident, and if so, was the driver of that vehicle negligent. My reasons for decision on that issue appear at [232] of this judgment; 2. Determination of the most probable factual sequence of events and circumstances that occurred at the time the plaintiff sustained her injuries. My reasons for decision on that issue appear between [233] and [247] of this judgment; 3. Whether the first defendant was negligent in the circumstances of the accident, and if not, did the circumstances of the plaintiff's injury constitute a blameless accident. My reasons for decision on that issue appear between [248] and [269] of this judgment; 4. Whether the plaintiff's entitlement to damages should be reduced on account of her own contributory negligence, as was alleged by the first defendant, and if so, by what degree of apportionment. My reasons for decision on that issue appear between [270] and [279] of this judgment; 5. The assessment of the plaintiff's entitlement to damages. My reasons for decision on that issue appear between [280] and [329] of this judgment. Those heads of damage claimed by the plaintiff are for: 1. Non-economic loss; 2. Past personal care and domestic assistance; 3. Future personal care and domestic assistance; 4. Damages for personal care and assistance required by the plaintiff's disabled adult daughter: s15B of the CL Act; 5. Future medical and out-of-pocket expenses; 6. Past out-of-pocket expenses. 1. An overview of the evidence and some matters concerning the transcription of certain parts of the evidence now follows. Evidence overview 1. In the plaintiff's case, in addition to the plaintiff's own evidence, oral evidence on factual matters was given by her estranged husband, Mr Christopher Grigoriadis. Their evidence requires close analysis. The remainder of the plaintiff's case comprised expert and documentary evidence, and evidence from a number of liability and medical experts. 2. The first defendant gave oral evidence of his understanding of the factual circumstances that prevailed at around the time of the plaintiff's injury. His account was that, on the afternoon of the day in question, he had driven the plaintiff to her home and had simply dropped her off, and once the rear door of his vehicle was closed by the plaintiff, and when she was clear of the vehicle, he had driven away in a normal manner, unaware of the existence of any problem of the kind described by the plaintiff. 3. Unfortunately, the cross-examination of the first defendant remained necessarily incomplete because during an overnight break in his evidence, he encountered a health event which resulted in his hospitalisation. There was a period of delay on that account. Later it became clear that he would not be able to continue with his evidence. The parties then sensibly reached a pragmatic consensus, whereby the hearing continued without adverse comment on the fact that the first defendant's evidence remained incomplete due to the force of those circumstances. 4. The parties relied on expert evidence concerning the liability issues. In that regard, the plaintiff retained Mr John Jamieson, an engineer with experience in accident analysis, and Dr Thomas Gibson, a biomechanical engineer. The first defendant retained Dr Andrew McIntosh, a biomechanical engineer and the second defendant retained Mr Michael Griffiths, a traffic accident research engineer, on those issues. Those experts prepared primary liability reports and they then prepared a joint report after a conclave meeting, following which they gave their oral evidence concurrently: T310 – T359. 5. The first defendant required the plaintiff's assessing orthopaedic surgeon, Dr James Bodel for cross-examination: T249 – T266. 6. On the damages issues of whether and, if so, to what extent the plaintiff should be awarded damages for past and future domestic assistance, the parties relied upon expert reports from occupational therapists. The plaintiff tendered reports from Ms Kate Dawson dated 6 September 2016 and 3 April 2018. The defendant tendered reports from Ms Natarsha Taylor-Fick dated 19 May 2016, 4 November 2016 and 31 July 2018. Those experts had a conclave meeting and produced a joint report dated 2 August 2018: Exhibit "D". They gave their evidence concurrently: T267 – T293. The evidence of the occupational therapists will be considered and evaluated in that part of these reasons that deals with the assessment of the claim for damages for past and future domestic assistance. 7. The parties tendered voluminous bundles of documents comprising, the clinical records relating to the plaintiff, reports relating to medical treatment, expert liability reports, expert medical reports and damages materials. 8. Included in those materials was a statement the compulsory third party (CTP) insurer had obtained from the first defendant on 18 September 2014, eight weeks after the accident: Exhibit "D2.5", Tab 1, pp 1 – 7. Transcription issues 1. The transcript of the plaintiff's evidence contained some minor transcription errors because of her accent. Nothing appears to turn on those matters. 2. The first defendant's legal representatives expressed a view or a concern that the evidence of Mr Sidiropoulos may not have been accurately or adequately interpreted from the Greek language into the English language. 3. After some debate about that matter, whilst acknowledging that there was a material difference between the dynamic process of spontaneous and contemporaneous interpretation of evidence as given in Court, and the less dynamically pressured process of an out of Court translation (T297.34), it was determined that the transcript of evidence and the audio recording of that evidence should be considered and compared. That exercise was made the subject of a reference to an independent Referee pursuant to Uniform Civil Procedure Rules 2005 ("UCPR") r 20.15. 4. A Referee was asked first to listen to the audio recording of the first defendant's evidence to form an opinion on whether or not the transcript represented a reasonable, fair and accurate interpretation of the evidence of the first defendant, and secondly, to report to the Court on that matter, either in the affirmative or the negative. If in the case of the latter, the Referee was asked to identify the detail of the aspects of the record that were not reasonable, fair or accurate. 5. The Referee who was initially appointed for that purpose baulked at the enormity of the prospect of the task when it was presented to her. That caused some further delay in finalising the proceedings due to the need to obtain a suitable replacement Referee who was willing to take on the role that had been abandoned by the first Referee. 6. Ultimately, a second Referee, Ms Shirley Zantis, agreed to take on the task. She prepared a differential handwritten pencilled commentary on the transcript of the first defendant's interpreted evidence and she prepared annotations at places in the transcript where she thought there were inaccuracies in the interpretation of the first defendant's evidence. In those instances she identified some omitted words and phrases, and she added some corrected text that accorded with her own interpretation of that evidence. The parties then arranged for the tender of that document in a typed form which incorporated those transcript annotations: Exhibit "H". 7. Ultimately it was agreed between the parties that although there were some areas of difference in the two interpretations of the first defendant's evidence, there were no substantive differences between those versions: T386.20 – T386.21; T389.2; T389.46. Review of the respective factual accounts 1. Before identifying my findings on the credibility and the reliability of the testimony of the respective witnesses, it is appropriate that I summarise the salient features of the factual evidence given by each of the witnesses. Mr Christopher Grigoriadis 1. In light of the attack the defendants made to the plaintiff's credit, it is convenient to commence with a review of the evidence of Mr Christopher Grigoriadis, her estranged husband. 2. Mr Grigoriadis did not witness the accident. He was told by a neighbour that the plaintiff had been found in an injured state on the roadway near her home. When he arrived at the scene he saw her lying on her back in a position where her head was close to the kerb in the kerbside lane, at an angle of about 90 degrees. 3. When Mr Grigoriadis attended the scene he saw an area of blood behind her head. He saw that others were tending to the plaintiff so returned to his house to continue to look after their adult daughter who had special needs, and who could not be left alone. At that time, it was already known that an ambulance had been summoned to take the plaintiff to hospital. 4. Mr Grigoriadis described how, after the plaintiff's return from hospital, she was "more angry", there were arguments for almost no reason, and "she was much worse than what she was before": T167.37 – T168.1. This implied she had previous issues of some kind. He also described a post-accident change in the level of the plaintiff's domestic and physical activities, and that since then, she was only attending to her daughter's basic needs: T168.37. 5. Mr Grigoriadis described how, before the accident, he and his wife did not have a very good relationship. Since 2013, after almost daily arguments, they decided to separate, but they continued to live in separate parts of the house, without a formal divorce: T169.27. It appears this arrangement was influenced by the care needs of their disabled adult daughter. 6. Mr Grigoriadis described how, after the plaintiff's accident, he took on a greater degree of housework inside the house, of the order of two to three hours per week: T170.37. He also took on about an extra two hours per week of shopping and about five or six hours per week of cooking: T171.26. He also did about an hour of laundry work per week (T171.45) and he also drove the plaintiff to any appointments that she needed to attend. 7. Mr Grigoriadis described a period of pre-accident family turmoil which had resulted in him seeking guardianship of his daughter. He stated that situation ultimately settled down before the subject accident, in about 2010, after the plaintiff had been hospitalised for a while. Mr Grigoriadis said since then, she had "felt better mentally" and she was making better decisions about the care of their daughter: T172.35. 8. In cross-examination, Mr Grigoriadis acknowledged that before the subject accident, the plaintiff "had some depression" and "some anxiety too": T173.16 – T173.20. He denied the suggestion that they had argued because of untruthfulness on her part (T173.24) and when questioned on the topic he stated that she was truthful to "the guardianship people", but had "her own point of view": T173.27 – T173.28. He denied that a pre-accident guardianship application had been supported by him because of his wife's mental health at that time: T174.28. 9. Mr Grigoriadis was asked questions about the plaintiff's transport and about her medical attendances. On the latter topic he was not able to provide useful answers as to whether those attendances related to the plaintiff or to his daughter, or to both of them: T176.45 – T178.50. No useful pattern or basis for a comparison could be gauged from his evidence in that regard. 10. Mr Grigoriadis confirmed that since the plaintiff's accident she did less domestic work: T179. He also stated that since the accident he has undertaken the tasks of grocery shopping, some washing and some laundry, and he continues to do so: T180 – T181. 11. The cross-examiner sought to elicit an opinion from Mr Grigoriadis as to whether the plaintiff had pre-accident mental health issues: T183.9 – T184.3; T185.45 – T186.12. Mr Grigoriadis was in a limited position to form an opinion on such matters as he has only spent between half to one hour per day in her presence and avoided having communication with her (T186.10 – T186.22) and he was plainly not qualified to speak on such matters of expertise. 12. On the subject of how the accident occurred, the cross-examiner sought to obtain verification of a note made by someone of a conversation that purportedly occurred between himself and a person from an organisation that provided care to his daughter. That evidence was, as follows: "Q. "He said that his wife has mental health issues, did not get hit by a car but came home by a taxi last night with a friend and fell when getting out of the car and hurt herself. To what extent he does not know but went by ambulance to Westmead. He has not spoken to her today so does not know the extent of her injury." First of all did you say to the care officer that your wife had mental health issues? A. Health issues? Q. Mental health, psychological. A. Mental health. Q. Did you say that the care officer. A. The care officer? Q. The care worker. A. The care worker. I don't remember about this. Q. Did you have a belief as of 22 July 2014 that your wife had mental health issues? A. No, no. Q. She did though, didn't she? Didn't she have mental health issues as of July 2014? A. No, not that they found, yeah. Q. Did you say, "She did not get hit by a car but came home by taxi last night with a friend and fell when getting out of the car." Did you say that to the care worker? A. No, I don't think I said anything like that because I didn't know who brought her home. I learned about that from my wife after a few days. I said, what happened and she told me that she was waiting for the taxi and the taxi was not coming so then she met that gentleman at the coffee shop, she knew him previously and he offered her to give her a lift and she said it would be better for her if she was still waiting for the taxi rather than to get him back home, what happened. This is what she told me. Up to that time I didn't know anything. Q. When did he tell you that she'd been offered a lift by this gentleman as you described him? A. After the accident when she could speak to me. Q. When was that; do you recall? A. When I saw her in the hospital after a few days. I said to her, "What happened" because I just found her outside on the street." [T184.31 – T185.23] 1. It follows from that evidence that Mr Grigoriadis was in no position to give reliable factual evidence as to how the accident occurred, or in relation to making any relevant admissions that were sought by counsel for the first defendant concerning how the accident had occurred. Plaintiff, Mrs Kiparissia Grigoriadis 1. The plaintiff was born in Drama, in Greece. She is presently aged 58 years. She was aged 53 years at the time of the accident. At age 12 years she left school at the end of her primary education in order to look after her father. She married in Greece at age 15 years. She arrived in Australia at age 17 years, and in that same year, gave birth to her disabled daughter who is now aged 42 years. She also has a son, a solicitor, aged 38 years. He was not called to give evidence. No necessity has been shown for him to have been called to give evidence in this case. No comment arises from his absence as a witness. 2. After the plaintiff's arrival in Australia, for a relatively short period, she worked in a coffee shop, and she then worked selling cookware. Ultimately, she ceased working due to the increasing needs of her daughter who had acquired permanent disabilities as a complication from Rubella, which she had contracted at age 6 weeks, and which has interfered with her development. The unchallenged evidence was that her daughter does not speak, she cannot live independently, she cannot care for herself, and she needs assistance with the activities of daily living. 3. As already observed, for many years, before the subject accident, the plaintiff and her husband did not have a harmonious relationship. They lived separately in the same house but they shared aspects of the care needs of their daughter. The plaintiff has formal guardianship and carer responsibility for their daughter: T35.33; T36.13. She achieved this against a background of family discord and conflict, including contested proceedings in the Guardianship Tribunal despite her own pre-accident physical and mental health difficulties. 4. On the afternoon of 21 July 2014, shortly before the accident the plaintiff had been shopping for various items, she visited her general practitioner for a prescription, and at about 5.30pm she was in Five Dock waiting for a taxi when the proprietor of a nearby Greek café or club invited her to take shelter from the cold and inclement weather to wait for her taxi. 5. In those events, a delay occurred in obtaining a taxi due to traffic. The proprietor was preparing to close the premises at 6.00pm. He suggested the plaintiff take a lift from another patron who was at the cafe, namely the first defendant, who was also about to drive the proprietor home. The plaintiff had been driven home by the first defendant on a previous occasion some years earlier. She therefore accepted the offer of a lift home and cancelled her taxi booking. The first defendant dropped off the café proprietor first, and then drove the plaintiff to her home. She was sitting in the rear seat behind the front seat passenger seat: T38.20. 6. When the first defendant stopped his vehicle in the plaintiff's street a little way along the street from the plaintiff's house, she alighted from the vehicle. The subsequent events of the accident occurred in darkness: T42.29. The plaintiff's evidence on those events was as follows: "Q. So when the car stopped, what did you do? A. WITNESS: And then I went to close the door, and I realise my coat was stuck in his door, and I dropped my bag and I thought I better do something before he goes fast, and then I started hitting him really hard, his window, with my ring so I can make some noise, and I was calling him, and I didn't get any response from him, and the car was going faster and faster, and then I started taking my coat off, which wasn't easy to do. First I try the right side. It wouldn't come off, and then I try the left side, and got eventually when I went closer for my house, I think one at the time it was one house down, then the coat came off my hand but I don't know, I lost my balance. I hit my head on his car, and then all I remember falling down, and after that nothing, everything went blank. The only thing I can remember is a young man, like there was a man telling me, "Don't move, the ambulance will be here soon." So after that, I don't remember anything. I don't remember how I got into the ambulance, how I went to the hospital, what happened there. The next thing I remember is on the third day when I was having an argument with the doctor because I didn't want to have the operation, but he was saying if I don't I will be paralysed." [T41.1 – T41.17] 1. The plaintiff explained that after closing the vehicle door, the bottom right corner of her coat or jacket was caught in the rear car door and she was unable to open the door from the outside with her right hand: T42.9. The plaintiff went on to explain that, in those events, she dropped her handbag to the road in order to be able to hit the window of the vehicle with her left hand, thereby making a contact noise between her finger ring and the window of the vehicle. 2. The described sequence of events that occurred between when the plaintiff exited the first defendant's vehicle and when she sustained injury was further clarified in cross-examination of the plaintiff by counsel for the Nominal Defendant: T147.22 – T151. That sequence was described by the plaintiff as follows: 1. She stepped out of the vehicle and onto the roadway; 2. She closed the door of the vehicle; 3. She then realised that part of her coat had become caught in the door when the vehicle was leaving and she then dropped her handbag and her shopping bag to enable her to use a free hand to try and free her coat from the vehicle; 4. She then became concerned and tried to pull the coat free but it was stuck and she found that she was unable to open the door; 5. She first started walking along with the movement of the vehicle, and then she ran with it for "another minute", which I do not take to be a literal description, but she then found that she could no longer run or run any faster; 6. She became increasingly concerned as the vehicle was moving so she started hitting the vehicle with her ring and calling out to the first defendant; 7. As the vehicle continued to move away she was trying to get herself out of her coat and the coat then stretched tight whilst she continued to run, until she managed to free the coat. After she had freed the coat, she hit her head on the side of the vehicle and immediately fell to the roadway. It is not clear as to how she had freed herself. The hospital records later described the "Jacket top as cut": Exhibit "C", Vol 1, p 328. 1. The plaintiff explained that when the investigating police interviewed her at Westmead Hospital she told them a taxi had been involved in the incident because, at that time, she was scared of her husband's reaction if she had said she had accepted a lift from a stranger: T43.10. 2. The first defendant made multiple credit challenges to the plaintiff's evidence. The content of the challenges included: 1. An allegation of a generalised difficulty in telling the truth: T105.50 – T106.1; T108.33 – T108.38; 2. Alleged untruthfulness involving an allegedly invented account of how the accident had occurred and as to what occurred in the events of the accident: T94.38 – T94.40; T94.46; T96.27 – T96.39; T99.8 – T99.12; T102.14 – T102.39; T103.6 – T103.7; T103.17 – T103.30; T110.1 – T110.16; T145.45 – T146.6; 3. Alleged untruthfulness about the nature and extent of her pre-accident difficulties and her need for domestic assistance: T113.11 – T114.29; 4. Alleged untruthfulness about her daughter's need for care and the extent to which her need for domestic assistance has increased since the accident: T103.38 – T103.43; T104.25 – T104.31; 5. Alleged exaggeration of her injuries and disabilities: T114.25 – T114.29; T131.34; T134.34; T135.33 –T135.38; T136.1; T136.19 – T136.27; T137.18 – T137.23; T138.7 – T138.16; T138.35 – T138.40; T140.9 – T140.22; T142.1 – T142.16. 1. The second defendant's cross-examination of the plaintiff (T147 – T153) did not raise any credit-based challenges to her evidence. Instead, it was in effect a recitation, clarification and confirmation of her evidence in chief. 2. Significantly, in that cross-examination by the second defendant, the plaintiff confirmed that once she realised her coat had become caught in the door of the vehicle, she tried to pull it free (T148.7 – T148.18; T148.40), and as the vehicle moved away, she tried to free herself of her coat (T148.47 – T149.1), at which time her coat was getting stretched tighter until a point had been reached when she managed to free her body from the coat whilst she was running beside the vehicle (T149.33) at which time she felt as if it had come off, at which time she hit her head on the vehicle and then fell immediately: T149.6 – T149.29. The hospital notes recorded that the plaintiff had her jacket, which was torn, with her in hospital, where hospital staff had discarded it because it was damaged (Exhibit "C", Vol 1, p 328), which suggests the jacket, or most if, had become free of the car door. 3. The evidence as to the plaintiff's injuries, her treatment, and her disabilities, and the domestic care arrangements, will be taken up in my findings of fact on these matters. First defendant, Mr Harry Sidiropoulos 1. The evidence in chief of the first defendant, Mr Sidiropoulos, was relatively brief. He was aged 80 years at the time he gave evidence: T198.31. He arrived in Australia in 1954 and had not undertaken any education since then: T198.25 – T198.46. He had worked as a truck driver and as a factory worker: T198.50 – T199.2. Some of his answers given in English, were variously, unresponsive or indicative of a lack of understanding of the questions that had been asked of him: T198.31 – T198.38. 2. Mr Sidiropoulos said that he had been at the place the plaintiff described as the Greek Club from about 1.00pm on the day of the accident. He said he left the Club at about 4.00pm or 4.50pm in the afternoon after he had been asked to give the Club proprietor and the plaintiff a lift home: T189.25 – T190.25. 3. Mr Sidiropoulos was asked about his recollection of the surrounding events of the accident. His answer was as follows: "Q. When you stopped, what did you do to the vehicle, to your vehicle? A. WITNESS: A. INTERPRETER: I stopped there, she opened the door, she took her shopping with her, she got out, she closed the door and that's all, I took off, I don't know anything after that. Q. I want to go back a bit, first of all, when you stopped did you do anything to your vehicle, did you turn the engine off, did you do anything to the gears or what did you do? A. INTERPRETER: When I stop the car I did not turn the engine off, I just use the parking gear and I waited until she got out of the car and then I put the gear back to drive and I took off slowly. Q. I want to ask you questions about what you saw Mrs Grigoriadis doing after you'd stopped the vehicle; do you understand that? I'm sorry, sir, I'll interrupt. Do you understand I'm going to ask you questions about what you saw Mrs Grigoriadis doing, I'm not asking you to explain at the moment. INTERPRETER: I'm sorry. ROMANIUK: Your Honour, I'm sorry, the fact is the witness said something. HIS HONOUR: Yes, I need to know what he said. Q. Can you just tell me what he said please? A. Didn't see anything. I didn't do anything. I only saw that she took her things that she had with her and got out of the car and closed the door. I didn't see anything else." [T191.18 – T191.45] 1. He later reiterated that evidence, as follows: "Q. What did you see her doing? A. INTERPRETER: Yes, I turned my head to see Mrs Grigoriadis. I saw her picking up her things that she had at the back seat. She got out of the car, she thanked me for the lift, she closed the door and then I looked ahead of me to check the traffic, I looked at the right hand side and then I took off." [T192.3 – T192.7] 1. Mr Sidiropoulos was adamant that he had placed his vehicle into gear and drove off slowly, and did not see or hear the plaintiff thereafter, and he also said that he did not hear any banging, thumping or dragging noises: T192 – T193. He was of the view that the plaintiff could not have had her coat caught in the door of his vehicle because if that were so, he would have heard that the door had not been closed properly: T193.29 – T193.42. He also said there was no sign of damage to the left side of his vehicle: T194.25. 2. It appeared that at the time Mr Sidiropoulos gave his evidence, he had some difficulty hearing the spoken word in Court (T196.42) although it was disclosed that he had a health assessment in 2017, which showed his hearing was normal at that time. 3. The cross-examination of Mr Sidiropoulos raised questions about the reliability of his evidence: T197 – T214; T197A – T214A. 4. The factual description within Mr Sidiropoulos' more contemporaneous statement dated 18 September 2014, taken some 8 weeks after the accident, differed markedly in some respects from his oral evidence: Exhibit "D1.5", Tab 1, pp 1 – 7. That statement comprised 27 paragraphs set out over 7 pages including a rough diagram. It was prepared with the aid of an interpreter who read the typed document to Mr Sidiropoulos before it was signed by him. Relevantly, the statement contains the following account:- "20. I have known Kiparissa (sic) Grigoriadis for about three months and I have seen her three times at the Coffee Lounge at Harris Park. I was not close friends with her. I do not know anything about her personal life. I am aware that she lives on Hammers Road at Northmead. I would describe her as being 55 to 60 years old. She is about 160 centimetres tall. She is skinny. I am not aware if she has suffered from any health problems. 21. About 2pm on the 21st July 2014, I woke up at my residential address. I stayed home to 3pm and travelled to a Coffee Lounge in Harris Park opposite the TAB. I do not know the name of the Coffee Lounge. I go there two to three times a week to pass my time and to play cards. I meet friends there. I drove there in my own vehicle and arrived there about 3.30pm. There I met with friends, I do not know their names. Kiparissia arrived there about 5.30pm to 6pm and she talked to other people. I do not recall what she was wearing. The staff member who makes the coffee being George told me that he was going to close the Coffee Lounge and he asked me to drive him home. I had driven him home before and he resides at Harris Park and about half a kilometre (sic) from the Coffee Lounge. Kiparissia was there also and she asked me also for a lift home. I did see her drinking alcohol at the Coffee Lounge. I heard her ask George for a whiskey with coke. She had at least one of these drinks, I do not know if she had more. I saw her drink this drink about 6pm. I did not consume any alcohol as I do not drink. I had previously driven her home once before. 22. We left the Coffee Lounge about 6.30pm and we then entered the vehicle and I was driving, Kiparissia was in the back seat on the left side and George was in the front seat. I then drove George home and he got out of the car and Kiparissia stayed seated in the back seat. She did not appear to be affected by alcohol and she spoke normally. I then drove from Harris Park and then onto Windsor Road. 23. About 6.40pm, I made a left hand turn from Windsor Road into Hammers Road at Northmead. I was travelling in an (sic) westerly direction at a speed of 50 kilometres per hour. At the time the traffic flow was light in the same direction I was travelling and light in the other direction. At the time it was night and the weather conditions were fine and the roadway was dry. I was wearing a seat belt. I was not using a mobile telephone. I did not have the car radio on and I was not distracted by anything. 24. I was travelling along the roadway and Kiparissia said that I had passed her house. I then stopped and the (sic) did a U-turn. She then asked me to stop and I stopped my vehicle. I was parked about one metres (sic) from the gutter. She then opened the back nearside door and she then took out her bags which contained some shopping. As she was doing this I was still seated in the driver's seat and I was looking straight ahead and not looking at her. She then said to me, "Thank you very much." I then looked to my left and behind and looked at her and at this point she was standing outside the car and the door was open and she was standing to the rear of the door. I then saw her close the door by pushing it and the door completely closed. I then looked forward and slowly accelerated and drove off. I did not look behind and I did not look in the rear vision mirrors. I never saw her after she closed the door. I did not see any item of her clothing being stuck in the door. I did not hear her say anything when I drove off. I did not hear any impact with my vehicle after I drove off. There was no one else around at that time. I then drove home and arrived home about 7pm. 25. I was first notified of this accident three days later when I attended the Coffee Lounge at Harris Park and George asked me what happened to the woman. I told him that I did not know. He told me that she is in Hospital and she had an accident with my car. I did not know anything about it. 26. I was interviewed by a Constable about three weeks later when they attended my address. I do not know the name of the Constable. I explained to the Constable what happened and the Constable looked at my car and saw that there was no damage. The Constable recorded something in his official Police notebook. I did not read or sign the notebook. The Police have not determined that I was at fault. 26.(sic) I do not know if there was any accident with my car." 1. Those matters will be taken up in my consideration and findings concerning the factual circumstances of the accident, including a comparison of the content of the oral evidence of the first defendant and the content of his statement as cited above. 2. The parties have agreed that no adverse comment arises from the incomplete state of the first defendant's oral evidence on account of his health issues which arose before his evidence could be completed. 3. The transcript of the first defendant's evidence as originally transcribed (T197 – T214) must also be read in conjunction with the version annotated by the Referee: Exhibit "D1.6". The parties ultimately agreed that the comparative translation differences are immaterial: T386.20 – T386.21; T388.2; T389.46. Review of expert evidence on liability issues 1. In the paragraphs that follow, the evidence of the liability experts is reviewed. None of the experts were aware of any studies or body of literature which analysed a mechanism of injury to persons whose jackets had been caught in a car door and dragged along until disengagement: T313.3 – T313.27. Mr Jamieson – reports 1. Mr Jamieson is a well-qualified engineer and surveyor. His first report was dated 28 September 2016: Exhibit "C", Tab 1, pp 1 – 64. His CV demonstrated that he was well qualified to give opinions on the mechanical aspects of how the plaintiff's injury could have occurred. He identified the assumptions that he had been asked to adopt: Exhibit "C", Tab 1, Annexure E, pp 48 – 50. 2. Mr Jamieson set out in some detail the methodology of his analysis and the considerations he took into account. He also undertook some ergonomic tests on a similar vehicle to that of the first defendant to test the plausibility of the plaintiff's factual account. 3. Mr Jamieson concluded (at p 20 and at pp 25 – 26 of his report), that a long leather coat could easily have been caught in the fully closed double sealed left rear door of a similar vehicle so that it was unable to be pulled free by normal forces, which I interpret to mean something akin to the plaintiff's ability to pull on the coat. He also concluded, by reference to the roadside lighting, that the presence and the location of the plaintiff should have been quite viewable to a normal driver in the situation of the first defendant at the time the plaintiff had alighted from the defendant's vehicle. 4. In addressing the issues raised for his analysis (at p 22), Mr Jamieson made estimates that, at the time, the incident in question would have taken about 10 seconds, but probably longer, the terminal speed at the time of the incident would have at that moment required the plaintiff to reach a fast jog speed of no more than 20km/h or 5 metres per second. He postulated other possible events such as the plaintiff having tripped over or fallen. 5. Mr Jamieson identified (at p 23), the safety requirement stated in an elementary driver training handbook, to the effect that licensed drivers should at all times be aware of what is around their vehicle, including pedestrians and recently alighted passengers. He was of the view that in such circumstances, a driver would be expected to either check the left external mirror or look over the left shoulder to ensure the passenger was clear before setting the vehicle in motion. He concluded the plaintiff would have been fully visible to the first defendant had he looked into his left external mirror or over his left shoulder before driving away from the point where he dropped off the plaintiff. 6. Mr Jamieson prepared a supplementary report dated 27 June 2018: Exhibit "C", Tab 1, pp 65 – 87. That report in reply provided a commentary upon the analysis undertaken by Dr Andrew McIntosh on behalf of the first defendant. In that supplementary report, Mr Jamieson pointed out that whereas Dr McIntosh's brief was to examine the incident from a biomechanical viewpoint, his analysis which went into precise injury mechanisms, and therefore went beyond the scope of Mr Jamieson's own analysis. Dr Gibson – reports 1. Dr Gibson's 23 page report was dated 9 July 2018: Exhibit "C", Tab 1, pp 88 – 110. His CV amply demonstrates he is a qualified biomechanical engineer who is qualified to give opinions on mechanisms of injury. 2. Dr Gibson was of the opinion (at p 2), that the plaintiff's injuries, which included a lateral compression flexion fracture to the cervical spine, and fractures to the right upper extremity and pelvis were due to impact with her right side. He also stated that these injuries were consistent with the applicant being dragged by the first defendant's vehicle moving after she had exited from the vehicle but remained caught by her coat, resulting in her falling to the road surface on her right side. 3. Dr Gibson also expressed the view (at p 2), that the plaintiff's injuries were not due to a simple fall onto the road, or a slip on the road, because if such described mechanisms applied, the upper arm injury and the cervical spine injury would be unlikely to have been as severe as had occurred. He also said it was unlikely that the plaintiff's injuries were due to pedestrian impact from a passing vehicle. 4. In his analysis (at pp 8 – 10), Dr Gibson went on to review the conclusions expressed in reports from Mr Jamieson, Dr McIntosh and Mr Griffiths. Dr McIntosh – reports 1. Dr McIntosh prepared two reports at the request of the solicitor for the first defendant: Exhibit "D1.1", pp 1 – 95. His primary report was dated 22 November 2016: Exhibit "D1.1", pp 1 – 52. His supplementary report was dated 5 August 2018 and comprised a commentary on the analyses contained within the reports of Mr Jamieson, Mr Griffiths and Dr Gibson: Exhibit "D1.1", pp 53 – 95. 2. In his first report, Dr McIntosh identified his task (at p 3), as being to prepare an accident reconstruction report that addressed three questions; first, the mechanism of the accident as pleaded in the plaintiff's statement of claim and as analysed in the report of Mr Jamieson; secondly, to look for any errors or inconsistencies that on his analysis may be evident within Mr Jamieson's report, arising from the assumptions made and the methodology adopted; and thirdly, whether the plaintiff's injuries were consistent with the proposed mechanism as pleaded in the statement of claim, and in Mr Jamieson's report. 3. Dr McIntosh gave consideration (at pp 7 – 8), to the police report which in effect concluded that the plaintiff's eventual account of having caught her coat in the door was credible. He also considered (at pp 9 – 16), the description and diagnosis in the plaintiff's personal injury claim form, the plaintiff's statement of claim, the ambulance report, and a number of medical reports that described the plaintiff's injuries. 4. Dr McIntosh set out his reasoning (at pp 17 – 25), on the three questions he was asked to address and (at p 25), concluded: 1. That the mechanism as pleaded in the plaintiff's statement of claim and as described in Mr Jamieson's report "is in totality unlikely", although in making that statement, he agreed that it was plausible that a person alighting from a vehicle could be dragged along with the vehicle as a result of clothing being caught in the vehicle; 2. That Mr Jamieson's report was based "on many assumptions and inconsistencies" and he argued that the initial assumptions were "inconsistent with any realistic and credible incident characteristics"; 3. That the plaintiff's injuries "are not consistent with the proposed mechanism of the accident as pleaded, or as analysed by Mr Jamieson". 1. Dr McIntosh's cited opinions require analysis to determine whether they truly represent reliable expert opinions or whether they are simply to be read as an attack on the plaintiff's case. 2. In his second report, Dr McIntosh noted that on 2 August 2018, he was asked to prepare an urgent report commenting on the reports of Mr Griffiths and Dr Gibson, and to consider a large volume of medical records and reports. He received a letter of instruction to that effect on 3 August 2018 (referred to at p 55), and he then produced his second report comprising 21 pages, on 5 August 2018. 3. In his second report (at p 57), Dr McIntosh noted he had been asked to assume that the plaintiff suffered a right pelvic fracture, no right wrist fracture, and that any injury to the right wrist was soft tissue in nature. 4. He also identified (at p 57), the three questions he was asked to address. The first such question was whether the additional material caused him to alter any aspect of his previous opinion. He answered that question in the negative. The second and third questions called for him to provide commentaries on the reports provided by Mr Griffiths and Dr Gibson. The conclusions reached by Dr McIntosh in his supplementary report were as follows: "4. CONCLUSIONS 56. The following is a summary of the opinions presented in section 3. On balance, it is my opinion that: 1. A simple fall from standing does not explain the claimant's injuries; including the multiple injury injuries, the multiple injury locations, the injury mechanisms and the injury severities. 2. There are important inconsistencies between the incident scenario considered by Dr Gibson and the assumptions regarding the incident listed in John Jamieson's 22 September 2016 report. 3. I disagree with Dr Gibson's analysis of the claimant's injuries and his incident scenario. If the claimant had been dragged by the vehicle and attained some of the vehicle's speed, the claimant would have fallen to the roadway and suffered superficial injuries to her upper and/or lower limbs as a result of sliding, rolling and/or tumbling. These injuries are not documented. If the claimant had fallen at approximately her walking speed, the incident would not be considerably different to the simple fall from standing that Mr Griffiths considered and which Dr Gibson disagreed. 4. If the Court determines from the medical evidence that the claimant suffered from a combination of acute fractures and pathological fractures, then it is my opinion on balance, that the claimant may have suffered those injuries in a simple fall from standing. 57. In the context of a road traffic accident, in my opinion on balance, the most likely explanation for the claimant's injuries is that an unknown vehicle struck her (see paragraphs 41 and 45 of my 22 November 2016 report)." [Exhibit "D1.1", p 71] Mr Griffiths – reports 1. Mr Griffiths' report setting out his biomechanical analysis, which comprised 27 pages, was commissioned by the solicitor for the second defendant, and was dated 26 June 2018: Exhibit "D2.1". He had been provided with a copy of the first defendant's statement dated 18 September 2014, as is extracted at [63] above. He was also given an investigation report. 2. Mr Griffiths commenced his analysis with a review of the reported incident dynamics (pp 5 – 9), and a review of the records of the plaintiff's injuries (pp 9 – 17), before providing a commentary on the 28 September 2016 report of Mr Jamieson (pp 17 – 21), and the 22 November 2016 report of Dr McIntosh (pp 21 – 23), before setting out his expert opinions. 3. The solicitor for the second defendant asked Mr Griffiths a series of questions which he replicated in his report in conjunction with his answers to those questions (pp 25 – 27). 4. Those questions, and a summary of Mr Griffiths' responses, were as follows: 1. He was asked whether, on the balance of the probabilities, the plaintiff's injury could have been received in any of the manners alleged by the plaintiff, and if so, which one was more likely. Mr Griffiths did not answer that question directly in his discussion (at pp 25 – 26), in that he raised the possibility the plaintiff could have been injured as a result of a "simple trip and fall". Whilst he acknowledged that a trip and fall could have been initiated by some entrapment of her clothing, he said "there was no specific evidence to support that proposition". He discounted the theory of the plaintiff as a pedestrian, having been struck by a motor vehicle whilst on the roadway; 2. He was asked whether, the plaintiff's pattern of injury is consistent with: 1. Exiting from the vehicle, having part of her clothing entrapped, and then running alongside the vehicle for 50 metres at a speed accelerating up to 20km/h. In providing an opinion on that question he noted it was not necessary for the plaintiff to have been moving fast to have tripped and fallen and sustained the pattern and the magnitude of the injuries she received; 2. Being struck by the front of a vehicle whilst she was standing on the roadway. His opinion in response was that the plaintiff's injuries were not typical of a pedestrian having been struck by the front of a motor vehicle; 1. He was asked to provide a commentary on the reports of Mr Jamieson. Mr Griffiths' disagreement with Mr Jamieson's report seems to be that it was based on the plaintiff's account of how the accident occurred (p 17). This question will be revisited in my findings of fact as to the circumstances of the accident. He also criticised Mr Jamieson's methodology of testing a terry-towelling coat jammed in the door of a similar vehicle as being an invalid comparison (p 18), whilst arguing with Mr Jamieson's view that a driver in the position of the first defendant, if he had looked before moving off, would have seen the plaintiff standing adjacent to his vehicle (p 18), and he concluded (at p 21), that "a 50 + year old unfit woman, wearing a long coat and carrying shopping bags, could run alongside a car at a speed increasing up to 20km/h for a period in the (sic) of 10 seconds or more, would appear to be beyond the human capabilities of [the plaintiff], that is, it is an unrealistic proposition."; 2. He was asked to provide a commentary on the reports of Dr McIntosh. Mr Griffiths' commentary on Dr McIntosh's report in which he postulated that the plaintiff was injured in a simple fall (pp 21 – 23) was that it was an unsubstantiated speculative theory; 3. He was asked whether the plaintiff's injury mechanism was consistent with her account of events. Mr Griffiths' comment in response was that the plaintiff could not have kept pace with the first defendant's moving vehicle as postulated by Mr Jamieson, her injuries could be explained by a simple fall, and they were not typical of a pedestrian having been struck by a motor vehicle; 4. He was asked whether the plaintiff's injury pattern made it more likely that she received her injuries either whilst crossing the road (and falling), or being struck by another vehicle. Mr Griffiths' comment in response was that the plaintiff's pattern of injury was consistent with a simple fall whilst walking on the roadway. He did not entertain the clothing entrapment mechanism because "there was no physical evidence to make a determination". 5. He was asked whether the pattern of the plaintiff's injuries was consistent with any other injury mechanism. Mr Griffiths' comment in response was to reiterate his view that the plaintiff's pattern of injury could be explained by a simple trip and fall whilst walking. As to whether this could have been contributed to by a portion of her clothing remaining entrapped within a vehicle, he did not further engage with that possibility because "there is no physical evidence to make a determination". This raises the question of whether Mr Griffiths' opinions are based on a complete or sufficiently comprehensive analysis. Joint report of liability experts 1. On 8 August 2018, the four liability experts met in a conclave and prepared a joint report (Exhibit "D") which reached the following conclusions: 1. On the question of whether it was plausible that the plaintiff's leather coat could have become caught in the passenger door of the vehicle, Dr McIntosh, Mr Jamieson and Dr Gibson agreed it was plausible, whereas Mr Griffiths considered it uncommon, unlikely but plausible Exhibit "D", pp 1 – 2; 2. On the question of whether it was likely, on the probabilities, that the plaintiff would have been able to remain upright whilst still ambulating, and at what speed, Mr Jamieson and Dr Gibson considered the question was unclear, Mr Griffiths considered (with qualifications) the plaintiff's walking speeds would possibly have been in the range 6 – 8km/h. Dr McIntosh considered the question was vague but he considered the plaintiff may possibly have been able to momentarily achieve a speed of 10km/h: Exhibit "D", pp 1 – 2; 3. On the question of the balance of probabilities as to the most likely scenario to explain the plaintiff's injuries, Mr Jamieson excused himself from addressing questions relating to injury mechanisms as being outwith his expertise, whereas Mr Griffiths considered the plaintiff most likely fell on the roadway whilst walking, Dr McIntosh considered the plaintiff had been hit by a vehicle moving along Hammers Road, and Dr Gibson considered the plaintiff had fallen to the roadway whilst at a running pace because her coat had been caught in the vehicle door: Exhibit "D", pp 3 – 4; 4. The experts were asked to speculate on whether the opinions in sub-paragraph (3) above altered if it was assumed the plaintiff did or did not suffer an injury, whether a fracture or otherwise, to her right hip or pelvis. Mr Griffiths, Dr McIntosh and Dr Gibson adhered to the opinions they had expressed in their original reports. Mr Jamieson properly excused himself from addressing that question: Exhibit "D". Mr Griffiths accepted that either of the postulated mechanisms was possible. Dr McIntosh accepted that it was possible for the plaintiff to have injured herself by falling onto the roadway. Dr Gibson's opinions did not alter: Exhibit "D", p 6; 5. The experts were asked to identify the most likely cause of the plaintiff's injury from the vantage point of their particular areas of expertise. Mr Jamieson excused himself from addressing the question. Dr Gibson preferred the mechanism of the plaintiff having fallen whilst walking on the roadway. Dr McIntosh preferred the mechanism of the plaintiff having been struck by a vehicle. Dr Gibson preferred the mechanism of a fall after running at a pace after the plaintiff's leather jacket became caught in the vehicle door: Exhibit "D", p 6; 6. The experts were asked to identify their assumptions for the opinions expressed in sub-paragraph (6) above. Again, Mr Jamieson properly excused himself from addressing the question. The remaining experts all agreed the plaintiff's injuries were caused in a road traffic accident. The areas on which they expanded upon that position were identified as follows: 1. Dr McIntosh relied upon the assumption that the plaintiff had fractures to her cervical spine and pelvis; 2. Dr Gibson relied upon the assumption that the plaintiff's injuries, being to the cervical spine, pelvis and head, were right sided. He also considered it unlikely that the plaintiff was moving at a running pace. 3. Mr Griffiths maintained the position he set out in Section 7 of his report, citing the following factors: 1. The plaintiff was 50 years old, with osteoporosis; 2. The plaintiff wore a long coat and was carrying shopping bags; 3. The plaintiff was alcohol affected; 4. The plaintiff reported no regular exercise or sporting activity; 5. The plaintiff lacked grazes beyond the abrasion to her forehead. 1. [Exhibit "D", p 7] 1. The experts were asked to indicate, on the probabilities, which of three postulated mechanisms most likely caused the "extent" of the plaintiff's injuries: Exhibit "D", p 8. Mr Gibson, Dr McIntosh and Dr Gibson agreed that there was no difference between the concepts of the extent or the pattern of injury. Dr McIntosh considered that the terms were inadequately defined; 2. The experts were asked to indicate whether their opinions as cited in sub-paragraph (7) above changed if the plaintiff did, or did not, suffer a fracture to her right hip / pelvis; Their answers did not change: Exhibit "D", p 9; 3. The experts were asked to indicate whether their opinions as cited in sub-paragraph (8) above changed is the plaintiff did, or did not, suffer a fracture to her right hip / pelvis Their answers did not change: Exhibit "D", p 9. 1. In my assessment, Mr Griffiths' view to the effect that the plaintiff was "alcohol affected", as cited above, is of little probative value in this case. This is because the degree to which she may have been affected is undefined. The issue was only explored in the evidence to a very limited degree which did not give weight to the views of Mr Griffiths. Concurrent oral evidence from liability experts 1. The liability experts gave concurrent evidence on the eighth day of the trial: T310 – T359. In that evidence, they expanded upon, and to varying degrees, explained the opinions that they had earlier stated. 2. The questions posed to the experts for their conclave meeting necessarily limited their answers. They largely fell back to a position of reliance on their respective reports. Those opinions, and those reports, stand to be analysed in conjunction with the explanations provided by those experts in the evidence which they gave concurrently on the eighth day of the hearing. 3. There is no doubt the experts are suitably qualified to express opinions on matters of accident reconstruction. It is necessary to engage with, and to analyse their differing opinions, and to subject their evidence to a rational analysis to seek to resolve matters of conflict that are critical to the respective cases sought to be made by the parties: Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174, at [61]. 4. A summary of the oral evidence of Mr Jamieson, Dr Gibson, Dr McIntosh and Mr Griffiths now follows. Oral evidence of Mr Jamieson 1. In his oral evidence, Mr Jamieson clarified the assumption he had made in his report as to the turmoil speed, and identified a revised assumption as to the speed of the defendant's vehicle accelerating away from the stationary position, namely 5 to 10 km/h, which he described as a low speed that was not unusual in the case of an elderly driver, such as the defendant: T326.18 – T326.22. 2. Mr Jamieson identified a possibility that when the plaintiff's coat was caught in the door, if it was not caught up in the outer seal, it would not have offered significant resistance, but if the fabric did cover the outer seal, then resistance to being released would increase: T327.20 – T327.27. If, for example, the coat had been caught by a couple of inches by the outer seal, it would have been more easily pulled free: T336.34 – T336.36. He also identified the difference between the fabric being caught by overlaying the seals and being caught by the locking mechanism of the door of the vehicle: T327.29 – T327.42. 3. Mr Jamieson identified the prospect that with the vehicle accelerating away with the plaintiff's coat being caught or stuck in the door, at some point, an elderly person such as the plaintiff would not be able to keep up an accompanying speed, and would eventually trip over: T328.33 – T328.35. 4. Mr Jamieson confirmed that the version of events he had been asked to assume was plausible from the perspective of an engineer's analysis (T331.22 – T331.25), and that if he had considered the postulated manner of injury in any way implausible he would have said so in his report: T331.40 – T331.43. 5. Mr Jamieson explained that the ease of opening the vehicle door using the external handle was dependent upon the angle at which it was operated, in that the greater the angle between the operator and the door the less likely it would be that the handle would operate to open the door: T332.35 – T335.39. 6. In that regard, Mr Jamieson pointed to the fact that once the vehicle started moving, the plaintiff's hand would have been in a different position in terms of being able to readily or easily open the door by operating the handle as she would no longer have been adjacent to the door handle: T333.40; T335.12 – T335.23. 7. Mr Jamieson pointed out that as the line of the seal traversed the edge of the door, the distance between the outer and the inner seal varied by some 3 to 6 inches: T337.46. 8. Mr Jamieson also confirmed that if the hem of the coat was wedged in the seal, this might have contributed to a more firm wedging, and therefore resistance to being freed or extracted: T338.18 – T338.36. 9. I considered Mr Jamieson to be a reliable witness who took care to limit his evidence to matters that were truly within his area of expertise. Oral evidence of Dr Gibson 1. In his oral evidence, Dr Gibson did not materially alter the opinions he had expressed in his primary report or in the joint expert report on the liability issues. 2. In his oral evidence, Dr Gibson made the following points: 1. He cautioned against drawing conclusions based on cadaveric studies of the mechanisms of bony injury which were of guidance, but not definitive: T317.36 – T319.1. 2. He discounted the simple fall theory as an explanation of the plaintiff sustaining a 25 per cent compression fracture to her C7 vertebral body. Instead, he favoured a mechanism of the plaintiff being dragged along, introducing an additional velocity as a result of being pulled, adding that hitting the roadway from her vertical head height increased the possible force of impact "quite a lot": T321.22 – T321.47. 1. I also considered Dr Gibson to be a reliable witness who provided cogent reasons for the opinions he expressed. Oral evidence of Dr McIntosh 1. In his oral evidence, whilst Dr McIntosh did not materially alter the opinions he had earlier expressed, he made the following additional points: 1. He appeared to concede that the application of a vertical force to the cervical spine was likely to cause a compression injury: T315.48 – T316.3; 2. His cadaveric studies of bony injuries in crash testing related to the tolerance of the cervical spine to unusual loading in roll-over crashes: T316.44; 3. He acknowledged that the plaintiff's cervical spine injury was most likely caused by an axial compression force: T319.35, T319.44; 4. He conceded there was scope for variation between individuals as to how forces may cause bone fractures: T317.26; 5. He made assumptions as to the plaintiff's ability to remain upright and run as the vehicle accelerated based on her age and level of fitness: T328.45 – T329.15; 6. He conceded it was credible and plausible that the plaintiff's coat could have become caught in the vehicle's door as contended by the plaintiff: T336.7, T338.7, T338.48; 7. He disagreed with the plausibility of someone of about 162cms wearing a knee-length coat to remain upright, stating that it would have been increasingly more difficult for someone to remain upright once the coat was caught in the door "and then actually stand upright": T338.47; 8. He agreed that there was a difficulty in estimating speeds based upon perception: T340.30; 9. In addition, to the theories of a possible simple fall, or being struck by an unidentified vehicle, he raised the speculative possibility that the plaintiff could have been assaulted by someone: T353.7 – T353.26; 10. He initially avoided addressing the question which sought a concession that there was no objective evidence that the plaintiff had been struck by an unidentified motor vehicle: T352.39 – T352.45. His subsequent answers revealed the speculative basis for that theory: T355.8; 11. He sought to bolster his arguments by speculative reference to irrelevant scenarios, such as his investigations into injuries to bicycle riders: T356.22 – T356.31, T358.9. 1. The opinions stand to be analysed for their reasoning and their acceptability. I formed the impression that the opinions expressed by Dr McIntosh, to be strident and sweeping in nature, stand to be analysed by reference to the reliability of the foundations upon which they are based. Oral evidence of Mr Griffiths 1. The oral evidence of Mr Griffiths identified the following matters of significance: 1. He considered as credible, the coat caught in the door theory (T336.16 – T336.18) and that generally, with a pulling force, disengagement was possible: T336.43; 2. He said that there was scope for a wide range of the degree of garment entrapment, and therefore, the degree of horizontal force required to release the garment: T323.8 – T323.10; 3. If the plaintiff's clothing had been caught for a short time in the vehicle door then this would add to the lateral velocity so as to increase the probability of sustaining injury: T322.43 – T322.47; 4. He considered that such injuries would be "at the lower level" without explaining what he meant by that expression: T322.48; 5. He placed some significance on the fact that the plaintiff was not shown, on x-ray examination, to have sustained a pelvic fracture. In those circumstances, given the plaintiff's facial injuries, he considered there had been a vertical component of force applied high on the face, but not an axial compression to the head, and he considered it was possible to get those injuries from a simple fall: T322.9 – T322.25; 6. He introduced irrelevant analogies, such as persons with osteoporotic bone structures having fractures from a domestic fall: T323.48; 7. He considered all these postulated mechanisms to be plausible. He assigned a positive probability to the possibility of a fall and the garment entrapment theory. He discounted as being least probable, a vehicular strike, describing this as being a low probability: T324.5 – T324.26; T352.34 - T352.37; 8. He accepted that if the plaintiff's jacket had not completely come off, and was being worn in some way, this would have been protective from abrasions from roadway contact: T325.6; 9. He placed some emphasis on the plaintiff's relative age and assumed unfitness, in assuming that the plaintiff could not have maintained a running speed to keep up with the moving vehicle for a time: T329.25 – T329.31; 10. He agreed there was a range of possibilities for the coat being removable on pulling to not being able to remove it: T337.37 – T338.16; T339.20; 11. He stated he had not made assumptions for the purpose of his analysis, he had just reviewed propositions for scenarios of possible events: T344.48 – T345.4; 12. He said that in seeking to distinguish between running leading to tripping depends upon which leg was tripped. He considered the plaintiff's movements at the time would have been chaotic (T349.27) and he drew attention to a possible tumbling, or a sliding motion: T349.34; 13. He agreed it was possible and consistent that the plaintiff, with her coat caught in the vehicle door, could have fallen as she walked away from the vehicle, and with her out-stretched hand, she could have fractured her humerus: T350.33 – T350.44. Evaluation and findings on liability expert evidence 1. The matters of agreement and disagreement arising within the expert opinions are taken up in the following analysis. The resolution of the different positions taken by the experts is dependent upon the matters of fact that the experts have assumed. For example, this includes a comparison of the factual assumptions in Exhibit "D1.1", at p 59, i.e. par 14(8)-(10), compared with the factual evidence of Mr Sidiropoulos. 2. All three experts who ventured opinions on the feasibility of the mechanism of injury as postulated in the case for the plaintiff, namely Dr McIntosh, Dr Gibson and Mr Griffiths, acknowledged that there was no body of experimental literature that has either described or studied experiments on the mechanism of injury as postulated by the plaintiff in this case: T312.46 – T313.27. 3. The framework for analysing the expert evidence on the liability issues essentially involved a consideration of the following postulated mechanisms: 1. Injury caused by the plaintiff having simply fallen over on the roadway ("The simple fall theory"); 2. Injury caused by impact between the plaintiff as a pedestrian and an unidentified motor vehicle which then decamped from the scene ("The unidentified motor vehicle theory"); 3. Injury due to the plaintiff's coat having been caught in the vehicle door ("The coat caught in the door theory"). 1. Mr Jamieson, as an engineer, properly refrained from expressing any opinions on matters of a medical nature with regard to the cause or the extent of particular injuries as this was a matter outside his area of expertise: T313.3 – T313.5. 2. I now turn to consider the three liability theories that have been identified in the expert evidence. (1) The simple fall theory 1. Mr Jamieson offered no view on the simple fall theory: T314.1. 2. Acceptance of the simple fall theory as the factual basis of the plaintiff's injury would necessarily require a rejection of the plaintiff's otherwise not improbable evidence that, on alighting from the first defendant's vehicle, her coat became caught in the closed door of that vehicle before the first defendant's vehicle drove away and then dragged her along the roadway as the vehicle proceeded to leave the scene. 3. The only evidence to the contrary of the plaintiff's account was the inference-based evidence of the first defendant who had assumed that if the plaintiff's coat had been caught in the door of his vehicle, he would have known of this because, in that event the door would not have closed properly. Having regard to the considered opinion of the experts who thought that the mechanism advanced by the plaintiff was plausible, the first defendant's evidence must be discounted. In my view, the assumption made by the first defendant was speculative. It does not necessarily follow that the vehicle door would not have closed properly, or that he would have heard this, as much seems to depend upon where along the line of the door the coat was caught. 4. Dr McIntosh considered that the simple fall theory was supported by the proposition that the plaintiff's injuries were "consistent with just falling over" (T314.11), the assumption that the plaintiff had a "weakened bone structure" (T314.12), and the absence of any grazes to the elbows or knees "or somewhere like that" indicated to him, in terms of probability, that "the total pattern of injury favours just falling over whilst walking": T314.13 – T314.21. His opinion in that regard involved a great deal of speculation. 5. Dr McIntosh was asked to consider whether the plaintiff's winter clothing may have concealed grazing on the plaintiff. In response, he suggested in that event, there might have been some residual bruising: T314.23 – T314.30. The tentative manner in which that view was proffered indicated its speculative nature. 6. When the basis for Dr McIntosh's views was explored, he invoked a force analysis involving the number of Newtons that were thought to be required for particular injuries to occur: T315.32 – T317.50. In my view, this involved considerable speculation concerning the resolution of forces or vectors that was not supported by testable data or warranted on the evidence adduced. 7. In giving his opinion on the simple fall theory, Dr McIntosh did not exclude the possibility that other mechanisms could be invoked to explain the plaintiff's injuries: T314.19. It was also clear from Dr McIntosh's description that the opinions in the matter of the cause of the plaintiff's injuries, proceeded as "a matter of probabilities": T318.50 – T319.1. He said that the argument that the plaintiff's cervical spine fracture was due to the application of an axial force involved speculation: T319.34 – T320.35. 8. As I read his evidence, Dr McIntosh acknowledged that analysis was drawn from research that was based on cadaveric studies of fractures, which involved different shock absorbing effects from the surrounding musculature when comparing live and cadaveric injuries: T316.36 – T317.26. Furthermore, Dr McIntosh acknowledged that the forces required for particular injuries varied according to matters such as angle of impact velocity: T317.28 – T317.31. 9. Dr Gibson confirmed that cadaveric experiments for injury had limitations in that such studies provided a guideline that was not necessarily entirely correct: T318.5. 10. Dr Gibson was of the view that the severity of the plaintiff's injury, particularly her upper arm injury and the severity of the neck fracture, were too great for the simple fall theory to apply, and those injuries could not be reasonably explained simply by the operation of the force of gravity: T314.34 – T314.45. He considered instead that the injuries were not typical of a fall at a simple walking speed: T315.11 – T315.14. 11. Dr Gibson said that the assumption made by Dr McIntosh and Mr Griffiths to the effect that the plaintiff's condition of osteoporosis or weakened bone structure should be qualified by the fact that particular assumed process or condition was not graded according to a described scale. Furthermore, the published literature on the subject did not indicate how far down the scale the bone weakness would be required to cause the plaintiff to have fractures. T318.45. 12. Dr Gibson stated that the finding of a 25 per cent compression injury at the level of the C7 vertebral body and a fracture through the left articular facet of C7 with anterior sub-luxation could not be easily explained by a simple walking fall, but a trip at speed resulting in an uncontrolled fall following a jacket release whilst being pulled at a velocity, increases the possible force resulting in injury "quite a lot": T321.22 – T321.47. 13. Mr Griffiths explained, based on literature, that whilst it was possible for the plaintiff's injuries to have resulted from a simple fall, the more energy involved in the process increased the probability of injury: T322.21 – T322.25. He also qualified that view by stating that he considered it was possible that a lower level of applied force could cause such injuries: T322.43 – T322.48. 14. In my assessment, based on a review of the cited evidence, there is no credible evidence to provide a factual basis to support the simple fall theory. (2) The unidentified motor vehicle theory 1. In my assessment, there is no credible foundation in the evidence to support the unidentified vehicle theory as a cause of the plaintiff's injuries. The entries in the clinical records suggesting the involvement of an unidentified vehicle are based upon unproven speculation. There is no physical evidence to support the proposition that there was a vehicle strike to any part of the plaintiff's body. That theory, involving a hit and run type collision, is entirely speculative. 2. Dr McIntosh did not directly address the question asked on behalf of the second defendant, to the effect that there was no objective evidence that the plaintiff was struck by an unidentified motor vehicle, and instead speculated on the cause of an assumed pelvic fracture, and which Mr Griffiths pointed out, was not borne out by the x-ray evidence. When pressed on the question Dr McIntosh retreated to the novel alternative proposition that the plaintiff could have been assaulted by someone, a matter not referred to in her evidence, and not the subject of any assumption that Dr McIntosh or any other expert had previously been asked to make: T352.39 – T352.40. 3. As explained in the course of the analysis of the simple fall theory, at [115] to [128] above, an acceptance of the unidentified vehicle theory would require a rejection of the plaintiff's otherwise not improbable evidence of her coat having been caught in the closed door of the first defendant's vehicle before he drove away from the scene. 4. Dr McIntosh later acknowledged that in the absence of any lower leg injury suffered by the plaintiff, his suggested mechanism of the plaintiff having been clipped by the front of the motor vehicle whilst a pedestrian, involved speculation: T353.50 – T355.3. He also speculated on the possibility that the plaintiff may have been hit by a bicycle but ultimately he also discounted that possibility: T355.40 – T358.9. 5. Whilst Mr Griffiths considered all three options to be possible, he considered the option of a simple fall to be plausible and that the option of assumed impact from an unidentified vehicle to be the least plausible of the three identified scenarios: T324.1 – T324.26. However, he could not assign a probability other than to say that the more force involved, the greater the probability that injury would occur: T324.30 – T324.32. He considered the unidentified vehicle theory the least probable. (3) The coat caught in the door theory 1. All four liability experts, with varying degrees of enthusiasm, considered that the coat caught in the door theory, was a plausible explanation for the plaintiff's fall and her resultant injuries. Mr Jamieson used the term plausible according to its plain meaning. He said that if he had considered there were elements of implausibility he would have said so: T331.1 – T331.43. 2. Mr Jamieson considered an accelerating speed of 5 to 10 km/h was a possible mechanism: T326.19. Mr Jamieson agreed that if the plaintiff was running beside the accelerating vehicle with her coat caught in the door, the acceleration would eventually cause her to trip over and fall: T328.30 – T328.35. Dr Gibson and Mr Griffiths agreed that scenario was possible, but that at some point during vehicular acceleration, the plaintiff would not have been able to keep up with the vehicle: T329.19 – T329.31. 3. As a lay assessment rather than an expert assessment, Mr Griffiths accepted that a mechanism of injury where the plaintiff could have for "a fairly short duration", run 6 to 8 km/h as the vehicle accelerated whilst her coat was entrapped in the closed door of the vehicle, before being thrown to the side: T325.34 – T326.1. 4. Dr McIntosh said he expected that a 50 year old woman would be able to pull a leather coat free from an entrapment in the door of the vehicle if it was caught by 1 to 2 inches at the bottom: T326.40 – T327.12. Dr Gibson and Mr Griffiths agreed with him: T327.6 – T327.12. Mr Jamieson was in general agreement with that proposition, depending upon where and to what extent the coat was caught in the door in relation to the seal along the line of that seal: T327.20 – T327.42. 5. Mr Griffiths discounted the entrapped clothing theory because in his assessment, there was no physical evidence to determine the viability of that theory. In my view, Mr Griffiths' approach in that regard completely ignored the observation described in the hospital notes of the plaintiff's jacket or coat having been torn. His approach also ignored the plaintiff's own evidence. On those accounts, I consider that Mr Griffith's analysis represents an incomplete and therefore a flawed approach to the consideration he was required to make. 6. Mr Griffiths properly identified other influential factors such as the presence of an accelerating force, how easily the coat became disengaged, whether the coat was entrapped between the door seal and the door frame, or whether the entrapment was close to the locking mechanism. He said these factors provided scope for a very wide variation in the degree of entrapment and the extent of any required horizontal force to enable the release of the garment: T322.50 – T323.10. 7. Mr Griffiths considered that in the case of a mechanism of the application of lateral energy, such as a dragging action, there was a greater likelihood of occurrence of grazes associated with that mechanism: T324.45. 8. The experts agreed that ordinarily, the vehicle door should have been capable of being opened from outside by operating the door handle: T329.34 – T330.32. However, other factors required consideration. 9. Mr Jamieson considered that in the case of a moving vehicle, the angle between the person opening the door and the door handle itself would mean that operating the handle was less likely to open the door: T332.35 – T332.39. In contrast, all experts agreed there should have been no difficulty in opening the door if the plaintiff had been facing the door and the vehicle had not moved: T333.1 – T333.23. 10. Mr Jamieson qualified that proposition by identifying the possibility that the plaintiff may have been trying to open the door from a sub optimal position: T334.7 – T334.18. He also identified the possibility that with the particular type of locking mechanism on that vehicle, the door could have effectively locked when the plaintiff exited the vehicle so that she could not have then opened it from the outside: T334.26 – T335.1. A failure of the door to open was explicable in a number of ways, on varying credible assumptions: T335.3 – T336.18. 11. The experts agreed that one of the variables was the extent and degree of firmness with which the plaintiff's coat was caught in the door of the vehicle: T336 – T338. Another variable was the plaintiff's posture at the time in relation to the door and a position where her coat was caught in that door: T338 – T339. In my view, these are significant matters to be taken into account when considering the likelihood of the plaintiff's description of events being correct. 12. The experts agreed that another significant variable was the general cognitive process whereby crash participants may be presumed to have imprecisely estimated factors such as speed and time before, during and after traumatic events: T339.41 – T340.20. 13. From the questioning of the experts it became apparent that some of the significant variables for the coat caught in the door theory included the rate of vehicular acceleration and "how people typically drive a car": T341.1 – T341.4. 14. Another significant variable was that the plaintiff did not remember precisely where she had been dropped off by the first defendant: T79; T341.40. That factor obviously had a significant variable effect on the drag distance and the assumptions entertained by the experts as to the plaintiff's walking, jogging, or running speed, and the acceleration rate and speed of the vehicle. 15. Mr Jamieson agreed that it was self-evident that once the facts (such as those described above) change, including considerations of distance, vehicular speed and running speed, then the conclusions must vary: T345.16 – T345.21. 16. The process of testing the assumptions made by the experts revealed an ambiguity or inconsistency between the various ambulance and medical surveys of the plaintiff's injuries, notably an injury to the left forehead, which affected Dr McIntosh's analysis: T346.35 – T347.3. On the evidence, it is not possible to accurately determine the sequence in which that injury occurred. 17. On the subject of whether, on the plaintiff's account, one would have expected to see injuries to the left side of the plaintiff's body, just as likely as to the right side of her body, as proposed by Dr McIntosh, Dr Gibson pointed out that she need not have hit the car with one side or the other. He said that she could have just slid down the side of the vehicle (T348.48), and that the difficulty with the postulated analysis was that the trajectory of contact between the plaintiff and the vehicle was not known: T347.35. Dr Gibson explained why it was not necessarily the case that the plaintiff would have had grazes or abrasions to her left side after becoming free of her coat: T347.45 – T348.20. 18. Mr Griffiths pointed out that even in that scenario the analysis of how the plaintiff's injuries occurred was dependent upon the factual assumption of how she had tripped: T349.25. Mr Griffiths seemed to have accepted there could have been a tumble or a sliding motion involved in the events of the plaintiff's fall: T349.34. 19. Dr Gibson maintained the view that the mechanism of the coat being caught could have triggered the plaintiffs fall: T350.48. 20. Dr Gibson acknowledged that the plaintiff's injury could possibly have occurred as a result of a fall from a loss of balance incurred after stepping away from the vehicle whilst her coat was caught in the door: T351.1 – T351.5. It is speculative and conjectural to seek to draw inferences in this case to the sequence of the plaintiff's injuries and whether one side or the other side was the first to be injured: T351.43. 21. Dr McIntosh pointed out the difficulties of analysing the causation mechanism of falling after running or walking because of the intrinsic variables involved: T349.46 – T350.3. Utility of expert evidence on liability issues 1. In my assessment, the preceding survey and analysis of the expert evidence indicates that it is of limited utility in resolving the liability issues calling for decision in this case where the plaintiff gave a credible and otherwise not improbable account of the circumstances of the accident. None of the experts were in a position to contradict her description of how the accident had occurred. Credibility and reliability of testimony 1. In the paragraphs that follow I record my assessment of the credibility and the reliability of the respective witnesses whose oral evidence has been summarised in the preceding paragraphs. No credit issues arose from the expert evidence. Given the nature of the challenges to the plaintiff's evidence, it is convenient to first consider the evidence of Mr Grigoriadis. Mr Grigoriadis 1. I considered Mr Grigoriadis, the plaintiff's estranged husband, to be a generally truthful and reliable witness. Whilst he was understandably disinclined to elaborate upon the interpersonal difficulties that subsisted between himself and the plaintiff before the accident, I did not obtain the impression that his diplomatic description of the plaintiff having "her own point of view" was intended to mislead or to obfuscate. 2. In my view, Mr Grigoriadis gave straightforward, unembellished and acceptable evidence. No credit issues emerged from within this evidence. Apart from his observation that the plaintiff had blood at the back of her head (T166.27 – T166.28), his evidence did not contain any relevant information that could throw light on the factual circumstances of the plaintiff's injury. His opinions on whether or not, or the extent to which, the plaintiff may have had a pre-existing mental illness, was limited as he was not qualified to express such opinions. Plaintiff 1. The expert evidence on the liability issues in this case became somewhat complex. As already indicated, it must be assessed according to the cornerstone of the credibility and reliability of the plaintiff's evidence. 2. In light of the opening address by counsel for the first defendant, in which it was suggested that the plaintiff had a tendency to lie or make up stories because of some asserted underlying personality characteristics, before the plaintiff gave her evidence, I took the opportunity of reading the opinions of the respective psychiatric experts. 3. When the evidence of the plaintiff concluded, I was left with the impression that she had given her evidence in a calm, measured and relevantly focussed way, and not histrionically, as had been suggested. In her responses to questions, she largely restricted her answers to the factual matters which she was called upon to address. My preliminary impression to that effect was exposed to counsel on the fifth day of the hearing during the concurrent evidence of the consultant psychiatrists: T229.50 – T230.17. 4. In light of the content of the factual matters referred to in the documentary material tendered by the parties, and in light of the psychiatric evidence and the challenges made to the plaintiff's evidence, that identified tentative view required a deeper consideration before reaching a concluded view as to the credibility and the reliability of her evidence. That consideration now follows. 5. The first defendant sought to attack the plaintiff's credit as to her description of the factual circumstances of the accident by asserting that, on account of an alleged personality disorder, she had a propensity to tell lies: T11.37. There was no adequately reasoned medical evidence to support that extraordinary assertion. 6. In making that attack, counsel for the first defendant specifically disavowed any notion of reliance on expert evidence on the plaintiff's tendency to tell untruths: T20.23. In my view, contrary to the first defendant's submission in that regard, having considered the whole of her evidence and the documentary exhibits that related to her, the plaintiff gave measured, generally credible and reliable evidence. 7. The first defendant sought to gain traction for the attack on the plaintiff's credit along those lines by reliance on the plaintiff's acknowledgment that she had initially lied to investigating police about an aspect of the pre-accident circumstances, in which she had said that she had been driven home in a taxi, rather than in the first defendant's vehicle. Having considered that matter, I have concluded that the plaintiff has satisfactorily explained that she had given that initial admittedly incorrect account because she was fearful of the reaction of her estranged husband in that regard: T42.46 – T43.10. I do not regard that cited evidence as providing a reasonable foundation for the more far-reaching attack that the first defendant sought to make on the plaintiff's credit. 8. Those circumstances will be analysed in my factual findings after taking into account the plaintiff's life history and cultural background. At this point it is sufficient to say that I do not accept the first defendant's cited submission by which the veracity of the plaintiff's account of the events was attacked. The plaintiff's admitted initial lie to the investigating police was identified and corrected by her at an early stage. In my view she has sufficiently and satisfactorily explained the circumstances on account of her stated apprehensiveness over the potential adverse reaction of her estranged husband to the circumstances. 9. In my view, the wider adverse credit finding sought by the first defendant, based upon an alleged personality disorder, is not justified on the evidence. I consider that the plaintiff gave her evidence truthfully, in a matter-of-fact manner, and without embellishment. 10. I take the opportunity to here record that although I have considered the evidence as a whole in arriving at my credit findings relating to the plaintiff, for convenience, my findings of fact on the issues of liability and damages, based on my assessment of the plaintiff's credit, appear at separate locations in my reasons. The first defendant, Mr Sidiropoulos 1. My conclusions on the credibility and the reliability of the evidence of the first defendant, Mr Sidiropoulos, must take into account the terms of the agreement reached between the legal representatives of the parties that no adverse comments arise from the fact that the plaintiff's cross-examination of him remained incomplete. 2. That said, my reading of that cross-examination, when considered against the background of his evidence in chief, and having regard to the factual matters that needed to be canvassed, indicates that the cross-examination of him appeared to have been substantially complete. 3. Mr Sidiropoulos, a retired man aged 84 years, has been in Australia since 1956. He has worked in factories and he has worked as a truck driver. He appeared to have a very limited command of the English language. His evidence was at times, given partly in the Greek language through an interpreter, and partly in the English language. He gave the impression that he was hard of hearing as he appeared not to have heard some of the questions directed to him, and did not appear to understand some questions, even when they were put to him in the Greek language. Some of his answers to questions were not responsive to the questions that had been asked of him. 4. There is no dispute that, on the occasion of a health check carried out on the first defendant in 2017, his hearing had been assessed as being normal. The defendant's legal representatives understandably relied on that test result to submit there was no issue as to Mr Sidiropoulos' facility for hearing the spoken word. However, given Mr Sidiropoulos' advanced age, and given that the historical test result was not contemporaneous to the time of the trial, I do not discount my own observation, as exposed to the parties, that Mr Sidiropoulos appeared to be hard of hearing when he gave his evidence: T215.44. 5. Mr Sidiropoulos gave his evidence hesitantly at times. He adamantly and repeatedly stated that in connection with the events in question, that he had given the plaintiff a lift home in daylight hours in the afternoon. That evidence was contrary to a more contemporaneously prepared written statement that he signed with the assistance of an interpreter, on 18 September 2014. 6. Mr Sidiropoulos was also adamant that at the time he was driving away from the place where he had dropped off the plaintiff near her home, he had not heard the plaintiff's hand banging on the side window of his vehicle and similarly, he had not heard any noise that attracted his attention. He was also adamant that the incident had occurred in daylight, a matter that was plainly inconsistent with his more contemporaneous statement. 7. My overall impression of the first defendant's evidence was that he was determined to repeat the notion that he had not done anything wrong and the plaintiff's injuries were not related to any action or inaction on his part. 8. Allowing for the fact that Mr Sidiropoulos' evidence was left incomplete, I nevertheless found him to be an adamant but unsatisfactory witness whose evidence was given contrary to the known and undisputed facts of the circumstances surrounding the plaintiff's accident. His evidence was in parts contrary to a more contemporaneous statement he had given concerning his knowledge of the factual circumstances of the accident. 9. My impression of the first defendant's evidence concerning the circumstances of the accident was that it was unreliable when compared to the account provided by the plaintiff. Survey of relevant records relating to liability 1. In the paragraphs that follow, the content of the emergency call, the ambulance records and the hospital records are surveyed and considered. Transcript of the call to 000 Emergency 1. The recording of the 000 emergency call was tendered (Exhibit "A"), along with a transcript of what could be heard in that call. The male caller, initially described the scene as : "There's a, there's a lady on the side of the road whose in distress and appears injured". In a subsequent three way interchange between the operator, the person rendering assistance and the person who was indisputably the plaintiff by reference to time markers, a conversation ensued in which the following was said: "OPERATOR: Okay so you've got a lady in distress? CALLER: That's correct, yeah she's um, to be bleeding, um. OPERATOR: Where's she bleeding from? CALLER: Um I can't really tell at the moment – OPERATOR: What happened to her? CALLER: Have you been struck by a vehicle or something? OR – FEMALE: [0.52] Yes CALLER: Hit and run is it? FEMALE: [0.54] My jacket was stuck in the door. CALLER: Ah it looks like she's been involved in a hit and run. FEMALE: [0.59] UNCLEAR OPERATOR: Okay FEMALE: [0.59] – You help me? CALLER: Yes, yes we will do that. FEMALE: [1.04] UNCLEAR" [Exhibit "B", pp 1 – 2] 1. The caller told the operator that the plaintiff was very close to the road, was basically incoherent and very distressed, bleeding from the nose, and that she had a shoulder injury, and a possible fracture of the collar-bone. The caller stayed on the line until ambulance personnel arrived at the scene: Exhibit "B", pp 3 – 9. 2. The caller's comment concerning the possibility that the plaintiff had been involved in a hit and run accident was plainly based upon unsupported speculation. Ambulance records 1. The ambulance records show that at 18:47 hours an ambulance was called, at 18:50 hours it despatched to the scene; it arrived there at 18:56 hours; the plaintiff was loaded into the ambulance at 19:09 hours arriving at hospital at 19:17 hours. The plaintiff was triaged at 19:23 hours and taken off the stretcher at 20:07 hours: Exhibit "D1.5", Tab 5, pp 25 – 26. 2. The ambulance records refer to a history of a vehicle versus pedestrian collision where the plaintiff was found sitting supported on the road. The version of events as recorded by ambulance personnel was: "Pt stated while exiting taxi, jacket caught in door. Pt stated taxi drove off and pt fell to ground. Pt denies LOC, full recollection of event. Pt stated ETOH. Pt difficult to manage, non compliant, unable to provide full care. OE alert, oriented, well perfused. Good general appearance…": Exhibit "D1.5", Tab 5, p 26. 3. The ambulance survey of the plaintiff's injuries was that she had bruising to the right eye, an abrasion and graze to the right forehead, bleeding from the nose which had ceased, and pain in the region of the right humerus aggravated by movement and palpation. Spinal immobilisation was applied with anatomical support and sand bags: Exhibit "D1.5", Tab 5, p 27. The final ambulance record of assessment of the plaintiff's injuries was that of a closed fracture of the right humerus and a closed head injury: Exhibit "D1.5", Tab 5, p 30. Hospital records 1. The voluminous bundles of tendered hospital and medical records were not well organised as was observed by Dr McClure, who considered that of the 6 volumes of material sent to him for review, only 1cm of papers was relevant: Exhibit "D1.1", Tab 4, pp 1 – 18; T226.37 – T227.11. They related to the plaintiff's pre-accident health history, her accident related treatment and her post-accident treatment and assessments. These will be analysed in the paragraphs that will shortly follow. Recorded histories as to accident circumstances 1. In cases where there are disputed or conflicting factual accounts, the contemporaneous records take on significant importance: Fox v Percy [2003] HCA 22; 214 CLR 118. In that regard, in the sub-paragraphs that follow, the contemporaneous accounts given by the plaintiff, as recorded in the ambulance and hospital notes, were as follows: 1. The very first recorded description of how the accident occurred was by the ambulance telephone operator who took a version from the person who called for assistance at 18:49:23. The recorded comment was: "LADY IN DISTRESS HIT AND RUN. 1. The incident involves a vehicle -v- pedestrian": Exhibit "C", Vol 1, Tab 3, p 230; 2. The first detailed record of an account of how the accident occurred was the plaintiff's description as summarised by an ambulance officer at about or shortly after the ambulance officers attended at the scene from 18:56: Exhibit "C", Vol 1, Tab 3, p 224; 3. The next recorded account was in the Westmead Hospital Emergency Department Clinical Triage Record which commenced at 19:23 and which stated: "BIBA – jacket got caught in car door – car drove off dragging pt ? unknown amount. Nil LOC. epis taxis. c/o control neck pain – refusing collar. c/o Rt humeral and rt hip pain. GCS = 15 PEARL. ETOH ++" [Exhibit "C", Vol 1, Tab 3, p 234]; 1. At 19:45 on 21 July 2014 an Emergency Department nurse noted the plaintiff had a haematoma over her right eye, was unco-operative and yelling, was talking in full sentences, she was alert and oriented. At that time, the following note was made: "NURSING: Pt biba post fall. Pt was dragged, unknown length off (sic) taxi when jacket got caught on the door." [Exhibit "C", Vol 1, Tab 3, p 240]; 1. The next note was made by a nurse in the emergency department at 20:00 on 21 July 2014, as follows: "NURSING: Pt requested to be given all her belongings including her bag of jewelleries. CDA informed, Pt husband took all back to their house. Only belongings noted brought in by ambulance was red handbag which was placed in belongings bags, Jacket top was cut and put in bin …" [Exhibit "C", Vol 1, Tab 3, p 238] 1. The next record appears in the Westmead Trauma Team notes at 04:00 on 22 July 2014, where the incident details were recorded as follows: "Getting out of car, coat got stuck in car door, car took off at high speed. Pt very non-compliant → screaming and refusing to consider if hit head or any LOC. Unable to obtain further hx." [Exhibit "C", Vol 1, Tab 3, p 236] 1. The secondary survey examination notes at that time noted the plaintiff was difficult to examine. The notes relating to examination of the plaintiff's head and face are difficult to read and are probably misspelled. My interpretation of the notes is that after the words "R forehead", the next word is an abbreviation for reddening. The next words, describing the face are "R peri-orbital haematoma": Exhibit "C", Vol 1, Tab 3, p 237. 1. As earlier explained by the plaintiff, the recorded factual account of the involvement of a taxi in the described incident was plainly incorrect. Factual findings relevant to the issues to be determined 1. Before addressing the issues identified at [8] to [9] above, it is necessary to review the evidence and record my fact findings on relevant matters that must be taken into account when considering and determining those issues. In the paragraphs that now follow, unless otherwise qualified, I set out my factual findings on matters in contention concerning: (1) the plaintiff's domestic circumstances; (2) her pre-accident health and medical history; (3) her injuries and the initial treatment she received; (4) the subsequent medical and allied assessments that were undertaken; (5) the psychiatrists' meeting and their joint report following that meeting; (6) the concurrent evidence of Dr McClure and Dr Morse; (7) the evaluation and resolution of conflicting medical evidence; (8) the remaining disabilities; (9) the domestic effects; (10) mitigation of damages. (1) Plaintiffs domestic circumstances 1. As already observed, the plaintiff has not been gainfully employed in any work for many years. This has been because she has been the primary carer of her 42 year old disabled and dependent daughter. Since 2001, the plaintiff and her husband have been estranged due to marital discord and disagreement on many matters. Although, they are not divorced, they have for some time led separate lives, living in different quarters at the same premises. They have minimal dealings with each other, however, they seem to cooperate together to achieve what is necessary to meet the needs of their disabled daughter, although since the accident, the plaintiff has had some difficulty in continuing to fulfil that role. That has been a problem for her since the accident until the present time. The plaintiff's adult son is independent of her. (2) Plaintiff's pre-accident health and medical history 1. The plaintiff's prior injury history comprised a fractured right wrist in a fall. She gained a good recovery from that injury. She has had a prior history of emotional and psychological health issues. The records that refer to those matters are not expressed in definitive diagnostic terms. 2. Dr Bonovas' records show that the plaintiff consulted him on numerous occasions between 1999 and July 2014: Exhibit "D1.5", Tab 6, pp 83 – 87. The plaintiff's pre-accident medical history as recorded by Dr Bonovas between 2000 and 2014, was: fracture of the right radius (2000); left sided cerebrovascular accident (2000); depressive anxiety disorder (2001); elevated cholesterol (2009); hypertension (2009); mild to moderate mitral regurgitation (2009); myocardial infarction without ST elevation (2009); Grade III cervical carcinoma in situ (2010); osteoporosis (2010); vitamin D deficiency (2010); hysterectomy (2011); removal of colonic polyps (2011); dislocation of the right distal radio-ulnar joint (2013); chronic obstructive pulmonary disease (2014); right carpal tunnel syndrome (2014) and pulmonary nodules (2014): Exhibit "D1.5", Tab 6, p 36. 3. As no substantive reference was made to those matters in evidence or argument, it is therefore unnecessary to review the details of those consultations and the medical correspondence and test results which related to those consultations: Exhibit "D1.5", Tab 6, pp 87 – 272. 4. The plaintiff's pre-accident clinical records from Concord Hospital reveal further details of a complicated past history which included the following: 1. On an uncertain date in August 2001, at age 39, the plaintiff was transferred to Concord Hospital from Westmead Hospital for an ICU admission for burns to 55 per cent of her body after being doused with methylated spirits against a background history of depression, alcohol abuse, a poor domestic situation and queried domestic violence. She had singed hair, facial burns and blistering, burns to her neck with blistering, burns to her chest, and soot in her airways requiring intubation: Exhibit "D1.5", Tab 7, p 273. Her son denied there was any domestic violence: Exhibit "D1.5, Tab 7, pp 275. 2. On 24 August 2001, the plaintiff's son gave a history to a Concord Hospital Social Worker that the plaintiff had a long history of mental illness for which she refused treatment, blaming men in her life for her problems (father, brothers, son, and lately her husband). The son's account was that there was no domestic violence, and that the plaintiff's burns were due to self-immolation using methylated spirits and a cigarette lighter whilst wearing nylon pyjamas. He requested that his mother have a psychiatric assessment and that she receive treatment when she was well enough. The plaintiff's depression was said to be secondary to amenorrhea: Exhibit "D1.5", Tab 7, pp 275 – 277; 3. On 10 September 2001, the plaintiff presented to Concord Hospital as a person detained pursuant to s 29(2) and s 33(1) of the Mental Health Act 1990 (NSW). Her admission was stated to be for a mental state assessment in the context of a significant burns injury, with delirium and manifest extreme confusion, agitation, lack of co-operation and paranoid ideation. The diagnostic conclusion of the attending psychiatrist was a resolved delirium without the need for treatment. The plaintiff was assessed as being oriented, lucid, co-operative with medical care, and no longer posing a safety risk: Exhibit "D1.5", Tab 7, pp 298 – 301; 4. On 10 September 2001, in that latter regard, the Concord Hospital psychiatric consultation notes record the following summary of a conversation the psychiatrist had with the plaintiff's husband: "… P/C to husband this morning – he states that Vicky has always been an unhappy person who used to make suicidal threats even before she was married. He feels things deteriorated in 1980 when they realized their daughter was mentally retarded. She was depressed again in 1993 when she had chemotherapy for malignancy (? skin ??) at Westmead in 1993 she became very anxious in 2000 when she was told her WCC was high. For the last 3 years Vicky has been drinking heavily – usually about ¼ bottle scotch daily. She also gambles regularly (pokies) + has spent all her daughters' saved finances from her DSP. - he says Vicky has been seeing a psychologist in the City – Mr / Dr Jackman - she has never seen a psychiatrist who (sic) had a psychiat (sic) admission - she has never taken antidepressants - he is unaware of her taking benzodiazepines …" The assessing psychiatrist's diagnostic impression of the plaintiff at that time was thought to be a delirium due to sepsis and not due to alcohol, The plaintiff's scheduled mental health detention was rescinded against a background of conflicting histories: Exhibit "D1.5", Tab 7, pp 312 – 313. 1. The plaintiff's last pre-accident consultation with Dr Bonovas was about 2 hours prior to the accident, at 16:24 on 21 July 2014 for prescription medication and for referral to Professor Maitz, for respiratory issues: Exhibit "D1.5", Tab 6, p 37. (3) Injuries and initial treatment 1. At the accident scene, Mr Grigoriadis had observed the plaintiff to have an area of blood at the back of her head: T166.27 – T166.28. This suggests she had a head injury of some kind. 2. The contemporaneous ambulance records show that the first assessment of the injuries the plaintiff received in the accident comprised a head injury evidenced by bruising around the right eye, an abrasion and a graze to her right forehead, a minor injury to her face which had caused epistaxis, an injury to her neck, and to the humerus of her right arm, and to her right hip, with associated pain in those areas. The ambulance personnel found it difficult to manage the plaintiff due to her non-compliance, which resulted in her refusing precautionary neck immobilisation. No history of loss of consciousness was recorded. The Glasgow Coma Scale assessment was not described as being abnormal: Exhibit "D1.5", pp 26 – 27. 3. The hospital records show that at 19:22 hours, the above information as obtained by the ambulance personnel was also noted by the hospital triage nurse: Exhibit "C", Tab 3, p 234. 4. The plaintiff waited about 9 hours in the emergency department before being medically assessed. In that time she was very non-compliant, screaming, and refusing to answer a question as to whether she had hit her head. At that time it was noted that the plaintiff had been difficult to examine: Exhibit "C", Tab 3, pp 236 – 237. She had been very aggressive and combative throughout the night, and had initially refused to have x-rays or a CT scan: Exhibit "C", Tab 3, p 457. 5. The records show that between 19:45 hours on 21 July 2014 and 06:30 hours on 22 July 2014, the plaintiff was managed by nursing staff. It was noted that in that time she had behaved abusively to the nursing staff: Exhibit "C", Tab 3, pp 240 – 243. 6. When the plaintiff was first assessed in hospital, it was noted that she had a right periorbital haematoma and forehead reddening, with non-specific neck tenderness in the mid-line, and generalised pelvic pain, right shoulder pain, and a right wrist deformity: Exhibit "C", Tab 3, pp 236 – 237. After some resistance on the plaintiff's part, some imaging studies were conducted of her upper limb and spine. 7. On 22 July 2014, following x-rays and a CT scan, an orthopaedic assessment was carried out. Some of the initial diagnostic notes are indecipherable. The assessment noted the plaintiff had a fracture of the superior articular facet joint of her seventh cervical vertebra with some antero listhesis of C6 on C7. The right upper limb x-ray revealed an old united fracture of the right wrist, and a fracture of the right humeral head near the shoulder. The plaintiff was noted to have a raised troponin level. A subsequent cardiac consultation in relation to that latter finding revealed no issue of concern but she was prescribed Clopidogrel, a blood thinner, as a precaution: Exhibit "C", Tab 3, p 244; p 250. 8. The fracture of the C6 vertebral body was identified as being a 25 per cent compression of the left side of that vertebral body, and a second fracture of that area was also identified: Exhibit "C", Tab 3, p 464. No pelvic fracture was identified: Exhibit "C", Tab 3, p 468. The finding of no pelvic fracture is puzzling. Dr Gibson, the biomechanical engineer who provided an opinion on liability issues, had been provided with a paginated bundle of medical records. At page 7 of his report (Exhibit "C", Tab 1, p 94), he noted that on 6 August 2014, a nuclear medicine bone scan (at page 12 of the bundle that he examined), showed the plaintiff to have sustained multiple acute fractures in her right hemi-pelvis. That finding does not appear in the bundles of materials that were tendered. He also noted that the plaintiff had a history of left-sided weakness to an unspecified arm and to an unspecified leg. 9. On 22 July 2014, the plaintiff was assessed by a psychiatrist because of concerns over her capacity to make decisions about her current treatment. The assessing psychiatrist noted that there had been a period of loss of consciousness during the accident but the plaintiff was irritable, argumentative, and a thorough assessment was not possible. The psychiatrist noted a need to being tested for post-traumatic amnesia in view of the history of loss of consciousness and possible traumatic brain injury: Exhibit "C", Tab 3, pp 255 – 261. 10. Ultimately, the plaintiff was surgically treated with a posterior fusion of her spine between the levels C5 to T1: Exhibit "C", Tab 3, p 468. 11. On 30 August 2014, the plaintiff was discharged from Westmead Hospital into the care of her general practitioner and a psychiatric review was suggested: Exhibit "C", Tab 3, p 476. When the plaintiff was discharged from hospital plans were made for follow-up CT scans of her chest, abdomen and pelvis on 1 August 2014 and a bone scan on 6 August 2014, and for further x-rays of her neck and thoracic spine in a further 2 weeks: Exhibit "C", Tab 3, p 47. 12. It may be that the multiple hemi-pelvis fractures noted by Dr Gibson were identified at that time. That issue has been left unclear. (4) Subsequent medical and allied assessments 1. Before identifying my findings concerning the plaintiff's accident-related disabilities, I set out a summary of my review of the chronology of medical assessments and treatment the plaintiff has received since her accident, as follows: 1. On 13 July 2015, at the request of the solicitor for the plaintiff, the plaintiff was assessed by Associate Professor Michael Fearnside, a consultant neurosurgeon, who issued a report of the same date: Exhibit "C", Vol 1, Tab 2, pp 165 – 171. Associate Professor Fearnside reviewed the plaintiff's complaints of neck pain, headaches and restricted right-sided neck movements with limited right upper limb movements, with pain, and related the plaintiff's injuries to the subject accident: Exhibit "C", Vol 1, Tab 2, p 167, p 170. He made no findings in relation to a possible traumatic brain injury; 2. On 13 July 2015, at the request of the solicitor for the plaintiff, Associate Professor Fearnside issued a whole person impairment assessment of the plaintiff at 37 per cent: Exhibit "C", Vol 1, Tab 2, pp 172 – 173; 3. On 11 August 2015, at the request of the solicitor for the plaintiff, the plaintiff was assessed by Dr Peter Morse, a consultant psychiatrist, who issued his report on the same date: Exhibit "C", Vol 1, Tab 2, pp 134 – 147. He considered (at p 135 and p 141) that the plaintiff's ongoing complaints were not surprising having regard to the severity of her injuries. He considered (at p 141) that in addition to the plaintiff's physical complaints, a brain MRI demonstrated physical damage to her frontal lobes in the subject accident contributed to her disinhibition, and her angry and irritable state. He also noted that the effect of her injuries has been influential on the plaintiff's underlying personality dysfunction and the plaintiff's emotional state. Dr Morse noted (at p 142) the plaintiff's ongoing depression and anxiety, her sleep disturbance and feelings of inadequacy, her lack of motivation and interest due to her emotional state, and the further depression due to the effects of the accident. He also noted the plaintiff's personality dysfunction and past history of depression have been contributors to her emotional state to a degree that is difficult to predict. Overall (at p 142), he considered the experience of the accident, the time in hospital, the ongoing physical symptoms and the difficulties caring for her disabled daughter, have caused the plaintiff to experience a depressive reaction in response to the accident. In that context, he also noted that the plaintiff's pre-existing dysfunctional personality would have made it more difficult for her to deal with the traumatic event of the accident and the effect it has had on her life, with her pre-accident depressed state having become more severe because of the accident. Dr Morse (at p 145) specifically rejected the notion of a psychosomatic, hysterical or functional condition, with appropriate supporting reasons, including the overwhelming traumatic nature of the accident and the major injury suffered by the plaintiff; 4. On 11 August 2015, at the request of the solicitor for the plaintiff, Dr Morse issued a whole person impairment assessment of the plaintiff at 15 per cent: Exhibit "C", Vol 1, Tab 2, pp 148 – 151; 5. On 20 October 2015, at the request of her solicitor, the plaintiff was assessed by Dr James Bodel, a consultant orthopaedic surgeon. His report of that assessment is dated 21 October 2015: Exhibit "C", Vol 1, Tab 2, pp 111 – 118. Dr Bodel stated (at p 116) that the prognosis for the plaintiff's neck problems remains guarded because of the severity of the neck injury which involved an unstable fracture at C6/7 which required a posterior fusion and stabilisation procedure from C5 to T1 levels; 6. On 21 October 2015, Dr Bodel issued a second report that dealt with the question of the plaintiff's assessed whole person impairment: Exhibit "C", Vol 1, Tab 2, pp 119 – 120. His assessment (at p 120) was 31 per cent whole person impairment; 7. On 23 October 2015, Dr Bodel issued a further whole person impairment report in which he assessed the plaintiff's whole person impairment at 31 per cent: Exhibit "C", Vol 1, Tab 2, pp 131 – 132. His previous assessment (at p 131) of 31 per cent whole person impairment remained unchanged; 8. On 22 March 2016, at the request of the solicitor for the first defendant, the plaintiff was examined and assessed by Dr Alan Home, a consultant in occupational medicine, who prepared two reports of the same date following that assessment: Exhibit "D1.1", Tab 1. Dr Home's reports, which detailed the plaintiff's history, her injuries, and her disabilities, were unremarkable. Dr Home identified the plaintiff's main complaints as neck pain with pain and restriction of movement in the right shoulder, with mild pain, weakness and stiffness in the right wrist: First report, p 8. Dr Home considered the injuries were supported by the radiological evidence, that her treatment had been reasonable and necessary, and that her related disabilities arose directly from the accident: First report, p 9. Dr Home expressed the opinion that the plaintiff's injuries had caused her to experience difficulty with lifting above shoulder height and caused her to use her left arm for most manual handling activities because of her right upper limb problem, and that her sitting and walking tolerance was limited to 30 minutes primarily due to neck pain and some lesser pain in her lower back: First report, p 10. Dr Home considered the plaintiff was able to continue her previous task of caring for her daughter, and described exacerbation of symptoms when performing light domestic chores. He also considered the plaintiff may go on to experience further degenerative changes of the right shoulder and post-trauma degenerative changes in the right wrist, with mild increase in symptoms in both areas, with progression of symptoms: First report, p 10. Dr Home's opinion concerning the plaintiff's need for domestic assistance to care for her daughter was expressed in expert terms: First report, p 11. His second report only relates to questions of whole person impairment, which do not require further analysis: Second report, pp 1 – 5; Exhibit "D1.1", Tab 1; 9. On 3 May 2016, at the request of the first solicitor retained by the first defendant, the plaintiff was examined and assessed at her home by Ms Natarsha Taylor-Fick, an occupational therapist, her report of that assessment is dated 19 May 2016: Exhibit "D1.1", Tab 5, pp 1 – 36. That report will be considered and analysed in the context of assessing the plaintiff's claim for damages for domestic assistance; 10. On 8 August 2016, at the request of the solicitor for the plaintiff, the plaintiff was assessed by Ms Kate Dawson, an occupational therapist, whose report of that assessment was dated 6 September 2016: Exhibit "C", Vol 1, Tab 2, pp 182 – 202. Ms Dawson's report will be analysed in relation to the assessment of damages for domestic assistance; 11. On 8 August 2016, Ms Dawson issued a separate report dealing with the assessment of the plaintiff's claim for domestic assistance concerning the care of her disabled daughter: Exhibit "C", Vol 1, Tab 2, pp 203 – 221. That report will also be considered when assessing damages claimed pursuant to s 15B of the CL Act; 12. On 2 October 2016, the plaintiff presented to Concord Hospital with chest pain and was investigated for cardiac issues. She was noted to be a difficult historian, jumping from topic to topic. Her cognition was assessed as being intact and discharged with the diagnosis of minor coronary disease: Exhibit "D1.5", Tab 7, pp 280 – 291; 13. On 13 October 2016, the plaintiff underwent a psychiatric assessment at Concord Hospital because she sought to be discharged against medical advice in the context of feeling frustrated at being in hospital. The community liaison psychiatrist noted the plaintiff's stressors to be: frustration at being in hospital; looks after disabled daughter; financial stress at high cost of paying for her daughter's carer; tiredness because of limited sleep (2 – 3 hours per day) in recent months; pain; upset at missing her medical appointment with her GP that day; "adamantly denied 7OSH/SI (sic)"; having to pay a carer $45 per hour whilst in hospital. The psychiatric assessment was that of no perceptual disturbance, intact judgment and reasonable (presentation), no current evidence of a major mental illness or psychiatric disorder; intact cognition, and no current indication for psychotropic medication: Exhibit "D1.5", Tab 7, pp 291 – 292; 14. On 13 October 2016, the first solicitor retained by the first defendant requested Ms Taylor-Fick to prepare a supplementary report, which she then provided on 4 November 2016: Exhibit "D1.1", Tab 6, pp 1 – 4. That report will also be considered in connection with the assessment of damages; 15. On 25 July 2017, at the request of the plaintiff's solicitor, the plaintiff was re-assessed by Dr Morse, who issued a further report on the same date: Exhibit "C", Vol 1, Tab 2, pp 152 – 161. Dr Morse stated (at p 157) that the plaintiff's frontal lobe brain injury has produced a cognitive impairment, disinhibition, and a lack of judgment, as well as other symptoms of post-traumatic stress disorder, and she has an adjustment disorder. Overall, Dr Morse considered the plaintiff presented with complex factors, but the accident caused her to be depressed and anxious in addition to her distress at her situation. Dr Morse (at pp 159 – 160) again rejected the notion that the plaintiff's condition might be psychosomatic, hysterical or functional in nature; 16. On 25 July 2017, at the request of the solicitor for the plaintiff, Dr Morse issued a whole person impairment according to PIRS at 13 per cent: Exhibit "C", Vol 1, Tab 2, pp 162 – 164; 17. On 9 January 2018, at the request of the second solicitor for the first defendant, the plaintiff was examined and assessed by Dr Andrew McClure, a consultant psychiatrist, who prepared a report of that assessment: Exhibit "D1.1", Tab 3, pp 1 – 22. Dr McClure interviewed the plaintiff without the assistance of the interpreter who was present, because he considered her to have excellent English skills. Dr McClure noted (at p 8) that he had access to six lever arch folders of materials and he selected various items of history from those records. He focussed on an extensive pre-accident medical history, including an alleged history of domestic violence and conflicting medical histories (pp 9 – 13), followed by a focus on post-accident in-patient psychiatric assessments (at pp 13 – 15), following which he stated (as at 9 January 2018), the plaintiff did not meet the criteria of a mentally ill or mentally disordered person. Dr McClure concluded (at p 20), that: "From her self report, Ms Grigoriadis' continuing disabilities are predominantly physical in nature". Dr McClure stated his opinion (at p 19) that the plaintiff had markedly understated her alcohol use and that she had neglected to mention suicide attempts and an involuntary admission to a psychiatric hospital. It is difficult and perhaps procedurally unfair to base adverse credit findings against the plaintiff on that analysis without specific evidence of the questions asked of the plaintiff at the interview: Mason v Demasi [2009] NSWCA 227, at [2]. In my view, that latter assessment must be discounted in terms of significance because (at that time) Dr McClure was not given the Concord Hospital records. Significantly, Dr McClure noted (at p 9) the plaintiff's son had given a telephone account to hospital psychiatric registrars which were recorded to state she had a "habit of lying". The reliability of that statement requires close evaluation, especially since the plaintiff's son was not called to give evidence to elaborate upon that stated proposition. Dr McClure's diagnosis was as follows: "Diagnosis The question does arise of a head injury sustained at the time of the subject accident. This may explain Ms Grigoriadis' 'combative' presentation in the Emergency Department of Westmead Hospital and her subsequent non-cooperation with proposed medical treatment (for which a Guardianship Tribunal Hearing had to be sought) as she had previously been a treatment-seeking individual with indeed multiple unexplained physical symptoms. The documents do demonstrate a long history of maladaptive behaviour including alcohol misuse, unstable mood, domestic violence and tenuous relationships. Although 'depression' is a recurrent theme, there is no suggestion of prolonged (longer than 3-4 days) episodes of pervasive unrelieved depression associated with biological features, as typically seen in Bipolar Disorder, for example. At times Ms Grigoriadis has been described as speaking rapidly and having a labile affect but she is able (according to a number of observers) to control these behaviours. These factors, including Ms Grigoriadis' multiple unexplained physical symptoms, are more consistent with a longstanding pre-accident 'Cluster B' (histrionic/narcissistic) personality disorder than with an acute/recurrent mental illness as such. Since the subject accident Ms Grigoriadis has continued to be troubled, from time to time, by brief feelings of depression. She has resorted (as she has done on past occasions) to 'comfort-eating.' She does allege some anxiety in traffic and claims to be unable to cross roads unaccompanied (but can do so with another person, even a stranger, or a group). Diagnostically, therefore, I would suggest that Ms Grigoriadis has a longstanding pre-existing Mixed Personality Disorder, as well as a Traffic Phobia of more recent onset." [Exhibit "D1.1", Tab 3, p 20] Dr McClure properly noted that the assessment of the effect of the plaintiff's accident-related traumatic brain injury was a matter beyond his expertise: Exhibit "1", Tab 3, p 21; 1. On 23 January 2018, at the request of her solicitors, the plaintiff was re-examined by Dr Bodel, who issued a further report on that date: Exhibit "C", Vol 1, Tab 2, pp 121 – 129. He confirmed the plaintiff's disabilities are stable and that her ongoing complaints of head, neck and right shoulder, right wrist and right hand problems are consistent with, and were caused by, the longstanding effects of the subject injury; 2. On 23 January 2018, at the request of the plaintiff's solicitor, Dr Bodel issued a report commenting on the occupational therapy assessment of Ms Dawson. He agreed in principle with the recommendations made by Ms Dawson on 6 September 2016, but noted the report was issued 20 months previously: Exhibit "C", Vol 1, Tab 2, pp 132 – 133; 3. On 13 February 2018, at the request of the solicitor for the first defendant, the plaintiff was re-assessed by Dr Home, who prepared a report of that assessment: Exhibit "D1.1", Tab 2, pp 1 – 16. In that report Dr Home expressed a number of opinions, some being of a medical and diagnostic nature, and others being in the nature of a commentary on the plaintiff's claim of a need for domestic and carer assistance. Those matters will be further analysed in connection with my findings resolving conflicting medical and allied opinions; 4. On 14 March 2018, at the request of the solicitor for the plaintiff, the plaintiff was re-assessed by Associate Professor Fearnside who issued his further report on the same date: Exhibit "C", Vol 1, Tab 2, pp 174 – 180. Associate Professor Fearnside noted (at p 179) that his findings on this examination had remained much the same as on his previous examination and he considered her symptoms were referrable to the subject accident; 5. On 14 March 2018, at the request of the solicitor for the plaintiff, Associate Professor Fearnside issued a whole person impairment assessment of the plaintiff at 37 per cent: Exhibit "C", Vol 1, Tab 2, p 181; 6. On 12 July 2018, at the request of the solicitor for the first defendant, Dr Home prepared a supplementary report in which he commented on medical reports and an occupational therapist's report served on behalf of the plaintiff. The questions that Dr Home was asked to address were not in evidence. He provided that commentary without further examination of the plaintiff: Exhibit "D1.1", Tab 2, second report at that tab, pp 1 – 4; 7. On 24 July 2018, at the request of the second solicitor for the first defendant, Dr McClure prepared a supplementary report following the consideration of some further 5 lever arch folders of materials. His commentary related to reports and records within those materials sent under cover of a letter from the solicitor for the defendant dated 23 July 2018. The letter to Dr McClure was not attached to his supplementary report. Dr McClure was not given the opportunity to re-examine the plaintiff in this context to discuss any matters requiring clarification. Dr McClure expressed his disappointment at the random way in which the material had been "organised". The supplementary report dealt with the pre and post-accident history of the plaintiff: Exhibit "D1.1", Tab 4, pp 1 – 18. Dr McClure annexed some additional un-numbered pages of materials apparently copied from Centrelink records. Dr McClure was asked a series of questions about his assessment of those records. In response, Dr McClure expressed the following opinion: "OPINION You have requested that I advise on the following: 1. Whether your opinion has been altered since your last assessment and report My review of this voluminous documentation does not require any change in the opinion which I had expressed in my report dated 9 January 2018. 2. Any relevant opinion or comment in relation to the documentation provided. The documents reveal Ms Grigoriadis to be an anxious and "needy" individual, who is coping poorly, long-term, with the breakdown of her marital relationship and the care of her disabled daughter. She has evidently alienated all the services to which she and her daughter have been referred. She has unrealistic expectations of her treating doctors and of hospital staff. She demands immediate attention. She takes little or no responsibility for her situation and its amelioration. Throughout the documents, there is evidence that Ms Grigoriadis has a substantial sense of entitlement and a propensity to "acting out" behaviourally and experiencing strong negative emotions such as distress, anxiety or anger. Although the claimant's presentation has sometimes resembled mania, these symptoms have not been persistent and the claimant has been able to modify her behaviour in response to environmental exigencies. The most likely diagnosis remains a Personality Disorder with prominent "cluster B" features. 3. A clear description and your professional opinion regarding the Plaintiff's pre-existing psychological condition, events, treatment and history. Ms Grigoriadis has a longstanding pre-existing Personality Disorder. There is no evidence of an acute or recurrent formal mental illness. Considering her history: • The agent of causation of the extensive burns which the claimant sustained in 2001 is a matter of speculation. • The important stressors maintaining Ms Grigoriadis' psychological dysfunction are the care of her disabled daughter, conflict with her husband and financial strife. • For many years, Ms Grigoriadis has had regular counselling sessions with Maria Petrohilos, a psychologist employed by the Greek Welfare Centre, for a number of years. Her records indicate that the subject of discussion has centred around Ms Grigoriadis' day to day difficulties. • The subject motor accident on 27 July 2014 involved the claimant either falling from or being dragged along a distance by the motor vehicle of an acquaintance who had given her a lift home. 4. Whether you believe that at the time of the subject motor vehicle accident, she was suffering from a pre-existing psychological condition. At the time of the subject motor accident, Ms Grigoriadis was suffering from a longstanding, pre-existing Personality Disorder. 5. If your answer above is yes, your opinion as to whether the Claimant's alleged post-accident psychological injuries and symptoms are attributed to her pre-existing psychological condition and history. Reviewing your various files and comparing the claimant's symptoms and behaviour before and after the subject motor accident, there has been little change. There is "stress", sleep disturbance, intermittent depression (but no thoughts of self-harm), alleged domestic violence on her husband's part and regular arguments with her husband, her son, and the professional carers to whom her daughter has been referred. Ms Grigoriadis has reportedly subjected the latter to abusive language on a number of occasions. There is a history of allegedly excessive alcohol use in recent years, but allegations of pathological gambling have not been sustained. The only additional post-accident symptom (which can be attributed to the subject accident) is anxiety around traffic and alleged inability to walk across roads unaccompanied. In my opinion, this constitutes a simple phobia. I have recommended some psychological treatment in my previous report." 1. Those questions, and Dr McClure's responses to them, will be considered in the course of analysing the conflicting psychiatric opinions in conjunction with the joint reports and concurrent evidence given by the consultant psychiatrists. 2. On 31 July 2018, at the request of the second solicitor for the first defendant, Ms Taylor-Fick prepared a further supplementary report which commented upon 35 items of additional material listed on pages 1 and 2 of that report: Exhibit "D1.1", Tab 7, pp 1 – 13. The letter of request from the solicitor for the first defendant was not in evidence, but the three general questions she was asked to address were replicated in that supplementary report. That report will be revisited in connection with the assessment of damages. 3. On 2 August 2018, Dr Morse and Dr McClure met by way of a telephone conclave and addressed a series of questions which resulted in a joint report of the matters discussed at that meeting. Those matters traversed: (1) the plaintiff's diagnosis and prognosis of the accident-related psychological problems; (2) the plaintiff's pre-existing psychological condition; (3) matters relating to past treatment; (4) matters relating to future treatment; and (5) matters related to various aspects of the plaintiff's claim for domestic assistance. Those matters are analysed in the paragraphs that follow. (5) Meeting of the psychiatrists and their joint report 1. Following their meeting, the psychiatrists prepared a joint report dated 2 August 2018 (Exhibit "E") in which they expressed their agreement on the following matters: 1. The plaintiff had a pre-existing personality disorder with mixed Cluster "B" features. They agreed this was a longterm condition that was present before the accident and that this could not have been caused by the accident; 2. There is little evidence of an exacerbation or an aggravation of the underlying personality disorder; 3. The effects of the accident (as evidenced by Dr McClure's diagnosis of January 2018 summarised at sub-paragraph (17) of [207] above), have meant that the plaintiff's continued symptoms are made worse by the plaintiff "having a personality disorder and previous acute emotional disturbance"; 4. The prognosis for those conditions is poor; 5. The treatment that the plaintiff has undergone to date has been reasonable, necessary and causally related to the accident; 6. The plaintiff would benefit from future consultations with a clinical psychologist for treatment of anxiety and depression, including for phobic symptoms; 7. The plaintiff requires referral to a psychiatrist for further assessment and treatment of a pre-existing mood disorder in combination with her personality disorder, including the prescription of psychotropic medication for her affective disorder. 1. It is not necessary to at this point consider the views of Dr Morse and Dr McClure on the question of quantification of the cost of domestic assistance because, without intending any disrespect to them, the evidence does not suggest that, they are qualified to express definitive opinions on that subject: Sampco Pty Ltd v Wurth [2015] NSWCA 117; Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443. (6) Concurrent evidence given by Dr Morse and Dr McClure 1. The views expressed by Dr Morse and Dr McClure, both in their respective reports, and in the joint report of their meeting in conclave, must be read in light of the oral evidence they gave concurrently at the hearing. Their concurrent evidence was given on the fifth day of the hearing: T225 – T247. In their oral evidence, the following matters emerged: 1. Dr Morse and Dr McClure agreed that the plaintiff had a pre-existing personality disorder with mixed Cluster "B" features: T230.40 – T231.15. Dr McClure qualified this by agreeing that the plaintiff's presentation was consistent with, rather than diagnostic of, that condition: T228.1 – T228.4. Dr Morse explained Cluster "B" personality disorder is a very complex condition: T232.34; 2. Dr McClure explained that such a personality disorder is characterised by longterm difficulties in the person's relationships with others and the world in terms of work, social and other relationships: T227.39. He explained that the term histrionic refers to a tendency to express things dramatically and in an exaggerated manner: T228.37. In expressing that view, in considering the pattern emerging from historical documents, he allowed for the possibility that some of the recorded reactions of others making historical statements about the plaintiff may have involved making judgments about her in situations of conflict: T228.45 – T229.3; 3. Dr Morse and Dr McClure agreed that the effect of experiencing traumatic circumstances could be a factor to be taken into account in assessing the day-to-day functioning of a person with such a condition in that the added stressor on an affected person has the psychological effect of a more pronounced reaction in the sense of being less able to cope: T230.46 – T231.36. Dr Morse went on to explain that branding a person with a personality disorder in the medico-legal context, can obfuscate the emotional reaction of such a person to the effects of a traumatic event: T232.10 – T232.16; 4. Dr Morse explained that in any attempt to discern the material difference between the ongoing effects of the plaintiff's personality disorder as if the accident had not occurred, and the condition as affected by the accident, was not a simple matter because he believed the plaintiff suffered from an affective disorder in the nature of a depressive, manic and hypomanic condition (T231.28), and in that regard, he could not divorce those matters when assessing the plaintiff's psychological state, given the plaintiff is affected by evidence of frontal lobe brain damage from the accident, which makes it more difficult for the plaintiff to deal with other people because of the effect of the accident on top of her underlying personality disorder, also taking into account her psychological reaction to her special injury and the need for surgery: T233.39 – T234.5; 5. Dr Morse explained that the effect of the accident has been to make the plaintiff's depression and her hypomanic symptoms more intense and more frequent, and make it more difficult for the plaintiff to "deal with the world": T233.47 – T234.5; 6. Dr Morse considered that in January 2015, the plaintiff had an affective disorder. He did not know of the extent to which the accident had made this worse, but "it probably hasn't helped": T234.16. Dr McClure was in general agreement with this, and stated it could not be determined whether the pre-existing condition has been exacerbated, but he agreed that question was separate to the psychological consequences of the accident: T235.16 – T235.20; 7. Dr McClure agreed that in cases of Cluster "B" personality the individual is more susceptible to every day stress and crisis reaction to stress is common in such cases, and Cluster "B" behavioural responses are more obvious when the person is under stress: T235.36 – T235.43; T236.13; 8. Dr McClure agreed that the experience of ongoing pain and physical debilitation would operate as a continuing stressor or trigger for symptoms associated with a Cluster "B" personality: T236.12 – T236.33; 9. Dr McClure agreed that in the context of the plaintiff's background of an unfulfilled life due to her early marriage and then the ongoing need to care for her disabled daughter, the accident has unfortunately made her situation worse: T236.43 – T237.4; 10. Dr McClure noted that since the accident, in the context of the plaintiff's pre-existing personality and mood disorders, two new symptoms have emerged which were associated with traffic: T241.25 – T241.39; 11. Whilst Dr McClure said it was difficult to identify the extent of difference to the plaintiff with respect to her pre and post-accident situation (T242.4), Dr Morse explained the position as follows: "WITNESS MORSE: It is difficult to identify except that she claims to be more distressed when I first saw her. Her state on examination in the second interview was of quite out of control anger and disorganisation and although we tend to - for the question of a physical state, there's no doubt that such a physical experience, the diagnosis operation, the anaesthetic, the continued need for drugs can cause anger in itself and is a cause of anyone of being depressed and down. I agree with the question you asked me was it difficult to ascertain, whether there's exacerbation, and it is very difficult because the nature of the previous emotional condition is not clear, is it just a depressive reaction, an anxiety reaction to the difficulties of having a personality disorder, the vicissitudes of life, with a disturbance with her husband, with a disabled daughter or is part of a bipolar disorder is probably a mixture of both. But is extremely difficult to state whether it is an exacerbation or it's something completely different. HIS HONOUR: The legal question I have to address is whether the accident has had a material contribution on the underlying state, so as to exacerbate it. Do you have a view on that? WITNESS MORSE: It's difficult your Honour, as Dr McClure has said, anyone with a personality disorder finds it difficult to deal with stress, especially a major stress of an accident and a significant spinal injury. That's not an exacerbation of the personality disorder, it is as we've mentioned Dr McClure and I have mentioned having a personality disorder and a previous probably significant emotional affective disorder also makes it more difficult to deal with the stress of the accident and the subsequent physical and emotional symptoms. The word exacerbation is extremely difficult, it is not an exacerbation of her previous if diagnosis is correct or not, I'm not saying it is, of a bipolar disorder, it's not an exacerbation of that. It's not an exacerbation of her personality disorder, it is however, the presence of extra emotional symptoms and the word exacerbation to some extent with due respect, is somewhat irrelevant given the nature of the accident and her subsequent state and the previous responsibility that she had in terms of a disabled child, difficult relationship with her husband and her obviously difficulty dealing with matters due to a personality disorder." [T242.8 – T242.42] 1. On the question of whether the plaintiff suffered a head injury, Dr McClure said the evidence supported that possibility but this was a matter outside of his field of expertise: T243.41 – T243.48. Dr McClure agreed that the plaintiff's combative behaviour in hospital, including her resistance to treatment even though she could have been rendered quadriplegic without it, was, on the balance of probabilities, capable of being explained by a head injury: T244.24 – T244.38. (7) Evaluation and resolution of matters of conflict in the medical evidence 1. Dr Morse and Dr McClure remained in disagreement as to the nomenclature to describe aspects of the plaintiff's diagnosis in respect of her psychological problems. There was a debate as to whether the plaintiff had an adjustive disorder with anxiety as opined by Dr McClure or whether there was a mixed adjustment disorder due to the effects of the accident, with anxiety and depression. Given that Dr McClure stated that the analysis was difficult, and given that Dr Morse explained that the plaintiff's past history of an emotional disorder and that the depression was an exacerbation of a previous mixed anxiety state (Exhibit "E", p 2), I prefer Dr Morse's formulation because he cogently explained the basis for that view. 2. In my view, the question of nomenclature is of diminished importance. On whatever the label, the plaintiff's pre-existing personality disorder has meant that the plaintiff's continuing psychological symptoms and lack of progress indicates that her symptoms have been made worse by those pre-existing problems, and that the prognosis is poor: Exhibit "E", p 3. (8) Disabilities that remain 1. The plaintiff's pre-accident health issues have already been identified at [190] to [194] above. Those conditions, and the plaintiff's underlying personality issues, as described by Dr McClure and Dr Morse, are matters in respect of which the first defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18]. 2. The plaintiff's accident-related disabilities have been variously noted by those practitioners who have examined her and who have provided reports. I have drawn upon the historical summaries within those reports and also on the plaintiff's evidence, in recording my findings as to her ongoing disabilities, which I find to be as follows: 1. Headaches; 2. Surgical scarring due to cervical fusion surgery, and ongoing pain, discomfort and right-sided restricted neck movements, exacerbated by activity. The plaintiff's post-accident neck pain is different from the episodes of neck pain she had experienced beforehand. The prognosis for those latter problems remains guarded; 3. Limitation in right upper limb movements, including painful shoulder movements and difficulty lifting the arm above shoulder height, with resultant restriction in manual handling activities. The plaintiff has also experienced numbness in the four fingers of the left hand, possibly from her mild stroke: T122.32; 4. Psychological disturbance involving depression, anxiety, sleep disturbance, feelings of inadequacy, amotivation where the plaintiff's pre-existing dysfunctional personality dysfunction made it more difficult for her to deal with the effects of her injuries rendering the effects more severe for the plaintiff than would otherwise have been the case; 5. Reduced sitting and walking tolerance and associated low back pain, and leg pain associated with prolonged sitting; 6. Cognitive impairment, disinhibition, impaired memory and judgment, probably due to brain injury; 7. Traffic phobia; 8. Reliance on painkilling medication; 9. Post-traumatic stress disorder and adjustment disorder. 1. The plaintiff's traffic phobia has ameliorated to a degree. Initially, she could not travel in cars because she would get panic attacks: T54.32. The defendant sought to undermine the plaintiff's complaint of traffic phobia by pointing to the fact that after the accident she had undertaken a 19 day bus tour in Greece: T131.48 – T132.12. The plaintiff explained that she had the problem for about 3 years and the problem had lessened when she went to Greece: T138.40 – T139.7. In my view, there is no relevant inconsistency. Dr McClure acknowledged that taxi travel did not preclude the possibility that this could result in anxiety: T243.17. Dr Morse pointed to the plaintiff's history that she had a fear of travel and of crossing roads engendered by the evidence and could only travel with somebody: T243.25. He also pointed out that the explanation that travelling in a bus in Greece, with people around her, with support from her brother, was a relevant distinction and explanation for the apparent anomaly relied upon by the defendant: T243.24 – T243.36. 2. The plaintiff's psychological and emotional problems have been superimposed on her underlying personality disorder. In that regard the first defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60. The context of those issues has been aptly summarised by Dr Morse, as follows: "CAVANAGH: Yes. And when you refer to in the last sentence of 2.1, however, an exacerbation of pre existing depression is itself difficult to confirm given the pre morbid fluctuations in Mrs Grigoriadis' mental state, is that still your view? WITNESS MCCLURE: Yes, in other words, it's very difficult to identify whether her pre existing condition is still the same or may have worsened. CAVANAGH: And it's difficult to identify isn't it whether other than the symptoms you've identified in answer to question 2.1, whether she suffers from any additional symptoms from that which she was suffering before the accident, do you agree with that Dr McClure? WITNESS MCCLURE: I think it's difficult to identify. CAVANAGH: Dr Morse? WITNESS MORSE: It is difficult to identify except that she claims to be more distressed when I first saw her. Her state on examination in the second interview was of quite out of control anger and disorganisation and although we tend to for the question of a physical state, there's no doubt that such a physical experience, the diagnosis operation, the anaesthetic, the continued need for drugs can cause anger in itself and is a cause of anyone of being depressed and down. I agree with the question you asked me was it difficult to ascertain, whether there's exacerbation, and it is very difficult because the nature of the previous emotional condition is not clear, is it just a depressive reaction, an anxiety reaction to the difficulties of having a personality disorder, the vicissitudes of life, with a disturbance with her husband, with a disabled daughter or is part of a bipolar disorder is probably a mixture of both. But is extremely difficult to state whether it is an exacerbation or it's something completely different. HIS HONOUR: The legal question I have to address is whether the accident has had a material contribution on the underlying state, so as to exacerbate it. Do you have a view on that? WITNESS MORSE: It's difficult your Honour, as Dr McClure has said, anyone with a personality disorder finds it difficult to deal with stress, especially a major stress of an accident and a significant spinal injury. That's not an exacerbation of the personality disorder, it is as we've mentioned Dr McClure and I have mentioned having a personality disorder and a previous probably significant emotional affective disorder also makes it more difficult to deal with the stress of the accident and the subsequent physical and emotional symptoms. The word exacerbation is extremely difficult, it is not an exacerbation of her previous if diagnosis is correct or not, I'm not saying it is, of a bipolar disorder, it's not an exacerbation of that. It's not an exacerbation of her personality disorder, it is however, the presence of extra emotional symptoms and the word exacerbation to some extent with due respect, is somewhat irrelevant given the nature of the accident and her subsequent state and the previous responsibility that she had in terms of a disabled child, difficult relationship with her husband and her obviously difficulty dealing with matters due to a personality disorder." [T241.41 – T242.42] 1. The plaintiff had a mild stroke on 1 March 2017: T125.31; T139.12. She recovered from that stroke after a few months. Until she recovered she had some weaknesses on her left side: T139.32. She also appears to have had a heart attack after the accident: T113.3. Whilst in Greece, the plaintiff had an episode of accidental electrocution and she gave that history to her cardiologist, Dr Petrellis, in October 2013: T64.9 – T64.39. There appears to have been no lasting sequelae of significance from that event. (9) Domestic effects 1. Before the accident the plaintiff had a regular domestic regime that centred around the care needs of her disable daughter: T28 – T30. She was able to care for herself without the need for any assistance. 2. The plaintiff's pre-accident regime concerning her daughter involved her rising at 7.30am and going off duty at around 10.00pm. In that period, in addition to tending to her own domestic tasks, she would wake her daughter and get her ready for the day ahead. On weekdays for four days per week, Mr Grigoriadis would take their daughter to a school where she undertakes activities. She leaves at about 8.30am and she would return at about 3.30pm. 3. On the daughter's return from her activities, the plaintiff would prepare food for her, provide her with drinks, and assist her with art and craft activities that occupied her, and generally provide a background supervisory presence for whatever the daughter was doing because she could not be left on her own: T31.24. She would also on occasion take her daughter on outings: T32.7. Since 2014, the plaintiff has been unable to take her daughter on outings: T143.50 – T144.2. 4. After the accident, the plaintiff was unable to shower her daughter. Consequently, arrangements were made from hospital for a lady to come to the house to shower her daughter for an hour per day from about 6.00pm: T45.30 – T46.2. 5. After the accident, as a result of her own injuries, the plaintiff found that she was unable to prepare her daughter's meals and "a lot of things" so she organised daily assistance from Baptist Care: T46.7; T46.42. In addition, Mr Grigoriadis took over the task of meal preparation for their daughter and cleaning up afterwards, for about half an hour per day: T46.10 – T46.33. 6. In addition, to those domestic arrangements, the plaintiff was provided with about an hour per day of personal assistance. She could not precisely recall the period, and estimated that this was for about 6 to 8 months: T47.1 – T47.14. 7. In that period, and continuing for about 3 years until July 2018, the plaintiff received 4 hours of domestic assistance per week for housework, cleaning, laundry and changing bed linen: T47.16 – T47.37; T48.20. That assistance ceased because the plaintiff was under the age of 65 (T47.40), which triggered a Government imposed limit for eligibility for such assistance: T47.41. The Government assistance and the assistance from Baptist Care were provided to the plaintiff and not to her daughter: T104.33 – T104.39. 8. In that time, after about a year, the plaintiff gradually took on domestic tasks such as starting the washing machine, doing things for herself, and showering her daughter T47.45 – T47.49. 9. Since the accident, the plaintiff has found herself unable to do art and craft activities with her daughter: T51.27. She occasionally received some additional private help every few weeks: T52.13. She has privately obtained domestic assistance in the form of a lady coming to the home every second week for 3 hours at a cost of $25 per hour, which equates to $75 per fortnight or $37.50 per week: T52.13 – T53.26. 10. The first defendant challenged the plaintiff's evidence on those mattes and suggested that the plaintiff was receiving the same level of commercial cleaning assistance both before and after the accident. The plaintiff rejected that proposition. I accept her evidence in that regard. She agreed that before the accident she had an hour and-a-half of domestic assistance per week: T112.49 – T113.6; T113.26 – T113.32; T126.50 – T127.5. 11. The plaintiff explained that the reason she was unable to shower herself in the period of about 6 to 8 months after the accident was that during that time she was unable to lift her hand and use her shoulder to shower herself: T127.28 – T127.34. I infer this was a reference to her injured right upper limb. 12. The plaintiff did not have a reliable memory of precisely when she was able to resume her own personal care. The proposition put to her was that this was by December 2014, which was less than the statutory 6 month period provided by s 141B of the MAC Act: T129.38 – T129.47. However, she was adamant that the assistance she needed was for 6 months. She described those as being the worst months: T131.23 – T131.27. 13. That evidence will be evaluated in the context of my findings relating to the claim for damages for domestic assistance. (10) Mitigation 1. The plaintiff is required to mitigate the deleterious effects of her injuries and losses: s 136 of the MAC Act. The defendants did not make any submissions to the effect that the plaintiff has failed to take reasonable steps to mitigate her losses. There is no basis from within the evidence to suggest or to support a finding of a failure to mitigate on her part. Dr Morse and Dr McClure both agree that the treatment the plaintiff has had to date for her post-accident problems has been reasonable, necessary and causally related to the accident: Exhibit "E", p 4. Issue 1 – Alleged involvement of an unidentified motor vehicle 1. In my opinion the evidence does not reasonably support a finding that an unidentified motor vehicle was in any way involved in the circumstances of the plaintiff's injuries. The suggestion that such a vehicle was involved is an entirely speculative notion. There is no credible or reliable evidence for the proposition that the plaintiff's injuries were caused by contact with an unidentified motor vehicle. The question of whether the driver of such a vehicle was negligent, does not relevantly arise for consideration. Accordingly, the Nominal Defendant is entitled to a verdict and judgment in its favour on the plaintiff's alternative claim made against that defendant. Issue 2 – Circumstances in which plaintiff was injured 1. I accept the plaintiff's evidence that when she alighted from the first defendant's vehicle, it was about 6.30pm and it was dark, although there may have been some street lighting at the scene. I do not accept the first defendant's evidence that when the plaintiff alighted from his vehicle it was still daylight. I find that proposition unlikely to be correct at 6.30pm in the evening, in winter, on 21 July. 2. I find that when the plaintiff alighted from the first defendant's vehicle and closed the rear passenger door, a portion of the corner of her knee length leather coat became caught in the door of the vehicle, and it remained entrapped in that position for a time as the first defendant proceeded to drive his vehicle away. 3. It is unclear on the evidence as to the precise length or portion of the entrapment. It is also unclear as to the precise location along the length of the outer or inner edge of the seal of the door that her coat was entrapped. It is also unclear as to whether the entrapment was all the way across the rubber door seals, or only partially so, or whether the entrapped coat corner lay entirely flat, or was folded over in a double or curled layer. 4. In those circumstances, I consider that the efforts of the retained liability experts to seek to arrive at an analysis of the forces at play whilst the plaintiff's coat remained entrapped in the door as the vehicle moved away, involve too many variables to enable an accurate analysis of the mechanical forces that operated in the sequence of events that led to the plaintiff's injuries. 5. In arriving at those findings, I have considered the simple fall theory that was debated amongst the liability experts. I do not accept that theory as the plaintiff gave clear evidence as to the sequence of events and I accept that evidence. That finding renders the simple fall theory to be an irrelevant consideration. 6. I find that very soon after the plaintiff had closed the vehicle door the first defendant commenced to drive away from where the plaintiff was standing beside his vehicle. I do not accept the first defendant's evidence as set out in his statement to an insurance investigator 8 weeks after the events to the effect that he had first looked to see if the plaintiff was clear of the vehicle before he commenced to accelerate away from the scene. I have reservations about that statement. No evidence was called to explain the detail and the sequence of events as to how that statement was compiled or composed. 7. The oral evidence of the first defendant did not suggest that before he commenced to drive away he had either looked in his left side mirror or over his left shoulder to see if the plaintiff was clear of the vehicle before he accelerated away. 8. I accept the evidence of the plaintiff to the effect that when the first defendant's vehicle commenced to move away from the scene, she tried to attract the attention of the first defendant to her predicament. I find that she did so by shouting, and then hitting the vehicle with her left hand, including hitting the rear passenger window with her ringed hand. That action on her part would ordinarily have been expected to have created an audible sound within the cabin of the vehicle. I find that for whatever reason, whether due to the possible presence of other ambient noise, or possible engine noise from the vehicle, or because of possible inattention by the first defendant to the significance of any such sounds, muffled or otherwise, he either did not hear or react to those sounds. It is not necessary to speculate on the state of the first defendant's hearing acuity at that time, given the results of the first defendant's hearing tests that were carried out in 2017. 9. I find that in the course of the events described in the preceding paragraphs, the plaintiff became increasingly more frantic in her attempts to not only try to free herself from her entrapped coat, but also in her attempts to keep pace with the first defendant's moving vehicle whilst she was still on her feet. In those events, I find that as the first defendant's vehicle continued to move at an accelerating speed whilst the portion of the plaintiff's coat that had remained entrapped in the vehicle door became increasingly stretched taught. I accept that in those events she was continuing to try and free herself from her coat. I accept that in those frantic events, she succeeded in doing so, either wholly or in part. Shortly afterwards, she made contact with the vehicle and she then fell to the roadway and sustained bodily injury. 10. In my view, it is not possible, without impermissible speculation, to reach a conclusion as to the precise sequence of events that occurred in those circumstances, or as to the duration of time or distance travelled over which the plaintiff somehow managed to free herself of her coat whilst she was being pulled or dragged along by the moving vehicle. The estimates of speed and distance were too imprecise to be reliable for such an analysis. Whatever the sequence was, the plaintiff's coat most likely became torn when it was freed from entrapment in the door of the vehicle. 11. There was much speculation within the assumptions the liability experts were asked to make in their analysis of the events of the accident. I consider the that the evidence of the estimated distance from the plaintiff's home where she was dropped off by the first defendant, the speed of the first defendant's accelerating vehicle, and the distance over which the plaintiff was pulled or dragged, and as to how she came to be freed of her coat, or how the coat came free of entrapment in the vehicle door, are all matters of imprecise estimation that preclude precise analysis. 12. Those matters all represent significant factual variables that would have affected the plaintiff's ability to pull her coat free when the vehicle started to move off, and at different stages whilst the coat remained caught in the door of the vehicle. Those uncertainties also preclude precise expert analysis to identify relevant pulling angles and the calculation and resolution of forces that had operated whilst the plaintiff was attempting to free herself of her coat. 13. I am satisfied that in the described events, very shortly after the first defendant's vehicle moved off, the plaintiff would most probably have found herself unable to keep up with the moving vehicle, whether by fast walking, jogging, or running. I find that at some point in that sequence she either fell or tripped before ending up on the roadway. 14. It is unnecessary to seek a more precise explanation of the sequence of those events leading to the plaintiff's injury. Her injuries, as documented by the ambulance and the hospital staff, could have occurred due to the operation of different forces that prevailed at the time, whether by direct contact with the vehicle, impact with the road, or a combination of those mechanisms, whilst she maintained a degree of momentum as she was attempting to keep up with the moving vehicle. 15. I am satisfied that somehow, in those chaotic circumstances, the plaintiff's coat became freed of the entrapment. I find that the coat, which was damaged in those events, was then taken with her in the ambulance, and later discarded in a bin at the hospital due to its torn and damaged condition as described in the hospital notes. I do not consider the sequence of events described and relied upon by the plaintiff to be inherently implausible. It is unnecessary to arrive at a concluded view of a more precise sequence of those events. Issue 3 – Whether the first defendant was negligent 1. The plaintiff's amended statement of claim filed on 6 July 2017 pleaded the following particulars of negligence alleged as against the first defendant: 1. Failing to heed the presence of the plaintiff on the roadway; 2. Failing to keep a proper lookout; 3. Failing to ensure the plaintiff had cleared the vehicle before driving away; 4. Failing to wait for the plaintiff to completely clear the vehicle and walk upon the footpath before driving away; 5. Failing to check to see if the plaintiff had cleared the vehicle before driving away; 6. Failing to check over his shoulder to see if the plaintiff was clear of the vehicle before driving along Hammers Road, Northmead; 7. Failing to check his left mirror to see if the plaintiff was clear of the vehicle before driving along Hammers Road, Northmead; 8. Failing to heed the plaintiffs warning that the plaintiff's jacket was caught in the rear passenger door of the vehicle; 9. Failing to stop, steer or otherwise manoeuvre the vehicle so as to avoid the motor accident; 10. Driving the vehicle with the plaintiff's jacket caught in the rear passenger side door of the vehicle; 11. Failing to stop the vehicle in a timely manner or at all after the plaintiff's jacket became caught in the rear passenger side door. 12. Failing to take reasonable care for the plaintiff's safety; and 13. Placing the plaintiff in a position of peril in the circumstances. 1. In order to sustain her claim of negligence against the first defendant she must identify the relevant risk of harm and also satisfy the requirements of s 5B and s 5C of the CL Act. 2. In this case, the relevant risk of harm was bodily injury to the plaintiff as a pedestrian in close proximity to a motor vehicle. In those circumstances, injuries could be caused by a variety of means due to the manner and circumstances of operation of the first defendant's motor vehicle on a public roadway, in darkness where a proper lookout was required. 3. Section 5B of the CL Act provides 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. 1. Section 5C of the CL Act provides as follows: 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. A consideration of those factors required by s 5B(1) of the CL Act now follows. 2. In my view, in the described circumstances there was a foreseeable risk that a person alighting from the rear passenger seat of a motor vehicle in darkness whilst wearing a long leather coat, could have part of the coat caught in the door of the vehicle after the door had been closed: s 5B(1)(a) of the CL Act. In my view, that risk was not far-fetched, fanciful or insignificant: s 5B(1)(b) of the CL Act. In my view, a person in the position of the first defendant would have taken precautions against that risk by keeping a proper lookout of the area where the passenger was alighting and refraining from driving the vehicle forward until it could be seen that the plaintiff had stepped away and was well clear of the vehicle: s 5B(1)(c) of the CL Act. 3. I find that the plaintiff has satisfied the three preconditions required by s 5B(1) of the CL Act to base a finding that the first defendant was negligent. 4. I find that in the described circumstances, the first defendant failed to take reasonable precautions that were appropriate to those circumstances. 5. The first defendant failed to make a proper assessment of whether the plaintiff was clear of the vehicle before he commenced to drive away. Had he properly looked to his left, either over his shoulder or in his left side mirror, he would have seen that the plaintiff had remained very close to the side of the vehicle. Those circumstances meant that it was unsafe for him to drive off as she was in very close proximity to his vehicle. 6. Had the first defendant adequately looked in the plaintiff's direction he ought to have seen that she was trying to free her coat, and was hitting the side of his vehicle to attract his attention. A driver exercising reasonable care in such circumstances would not have driven away without first satisfying himself that there was a sufficiently safe distance between his vehicle and his recently alighted passenger. Such a driver would also have reacted to the plaintiff's gesticulations by keeping the vehicle stationary until the basis for such gesticulations had been investigated and satisfactorily resolved. 7. In addition to satisfying the three pre-requisites of s 5B(1) of the CL Act, the plaintiff must also satisfy the respective requirements of s 5B(2) of the CL Act. 8. If those precautions had not been taken then the probability of the plaintiff becoming injured whilst in close proximity to the vehicle was significant. For example, she could have misplaced her footing, tripped and fallen against the moving vehicle. The vehicle could have been driven away other than in a straight line so that the likelihood of bodily contact between the plaintiff's body, or a limb, became increased. It is not necessary to survey a comprehensive or exhaustive list of the probabilities: s 5B(2)(a) of the CL Act. 9. There are many forms of injury that a person could acquire by coming into contact with, or being dragged along by a motor vehicle. The likelihood of serious harm is ever present, as has materialised in this case: s 5B(2)(b) of the CL Act. 10. In the described circumstances of the plaintiff alighting from the first defendant's vehicle in darkness, the precaution of ensuring the vehicle remained stationery until the plaintiff was a safe distance away, and was well clear of the vehicle was a negligible burden that was an unremarkable facet of keeping a proper lookout: s 5B(2)(c) of the CL Act. 11. The social utility of the first defendant giving the plaintiff a ride home was real, but that did not relevantly create the risk of harm to the plaintiff in this instance: s 5B(2)(d) of the CL Act. 12. The burden of taking the identified precautions was a common place aspect of exercising reasonable skill and care in the management of a motor vehicle: s 5C(a) and (b) of the CL Act. The factors relating to s 5C(c) of the CL Act do not arise for consideration in this case. 13. It remains necessary to consider the causation issue. Section 5D of the CL Act provides 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. 1. I find that but for the defendant's negligence, the plaintiff would not have been injured in the manner that occurred: s 5D of the CL Act. 2. Factual causation has been established in this case because, but for the negligence of the first defendant, the plaintiff would not have been injured as she was: s 5D(1)(a) of the CL Act. 3. On the question of legal causation, there is no issue that in light of the damages scheme for compensation for third party liability, the responsibility for the harm suffered by the plaintiff should be imposed on the first defendant: s 5D(4) of the CL Act. It is therefore appropriate for the scope of the first defendant's liability in this case to extend to the harm suffered by the plaintiff in this case: s 5D(1)(b) of the CL Act. 4. In view of the finding that the first defendant was negligent, the need for a consideration of the blameless accident provisions of the MAC Act does not arise. Issue 4 – Alleged contributory negligence 1. The first defendant's defence filed 29 September 2017, which was in response to the plaintiff's amended statement of claim filed on 6 July 2017, raised the following particulars of alleged contributory negligence: 1. Failing to take any or any adequate care for her own safety; 2. Failing to keep a proper lookout; 3. Failing to alight from the vehicle safely; 4. Failing to ensure that all of her clothing was clear of the vehicle; 5. Failing to warn or adequately warn the driver that she had failed to alight the vehicle safely; 6. Failing to warn or adequately warn the driver that her clothing was not clear of the vehicle. 1. The defence of alleged contributory negligence is one for which the first defendant carries the onus of proof avoiding to the requirements of s 5B, s 5R and s 5S of the CL Act. 2. Section 5R of the CL Act provides as follows: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 1. Section 5S of the CL Act provides as follows: 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated. 1. The alleged failures outlined in subparagraphs (a) to (d) of [248] above have to be considered in light of the prevailing circumstance of darkness. 2. In my view, an insurmountable obstacle the first defendant faces with regard to an acceptance of the submitted contributory negligence argument is that the first defendant has not been able to show that the plaintiff either knew or ought to have known that in the surrounding circumstances of darkness, her coat was or was likely to be caught before she closed the rear door of the vehicle. Once the plaintiff had alighted from the first defendant's vehicle and closed the door, she was necessarily limited in her ability to step away from the vehicle because of the restraint of her coat which was caught in the closed door. 3. At best, the plaintiff's actions amounted to no more than a casual moment of inattention, in poor light conditions, for which no liability for alleged contributory negligence should arise. She had safely alighted from the vehicle. The fact that she did not see that a portion of her coat had become entrapped in the closed door was a function of the dark surroundings. The fact that her coat was caught in the door does not of itself give rise to a finding of contributory negligence against her. 4. If I am wrong in that analysis, I nevertheless consider the first defendant should bear 100 per cent liability for the plaintiff's injury because he had the opportunity to ensure a different outcome by simply keeping his vehicle stationary for the amount of time required for the plaintiff to step away sufficiently clear of the vehicle before he commenced to drive away. 5. In my view, the alleged failure of the plaintiff to warn the first defendant, as outlined in sub-paragraphs (e) and (f) of [270] above, are not made out. The plaintiff was, initially unaware that her coat was caught in the closed door. If she had been given the chance to step away, she might have come to that realisation earlier than she did. I do not accept that she did not warn the driver that her clothing was not clear of the vehicle. Unfortunately, the first defendant did not hear the plaintiff's attempts to attract his attention to make him aware of the situation. He simply proceeded to drive away. 6. For the above reasons I do not accept the first defendant's submissions to the effect that there was contributory negligence on the part of the plaintiff in the circumstances in which her injuries occurred. Issue 5 – Assessment of damages 1. In the paragraphs that now follow, the heads of damage claimed by the plaintiff are assessed. (a) Non-economic loss 1. The plaintiff initially made a submission that her claim for non-economic loss should be assessed in the range of $350,000 to $400,000: MFI "2". That submission was later varied to $475,000: MFI "16". In contrast the first defendant submitted that the plaintiff's claim for non-economic loss should be assessed in the sum of $100,000: MFI "21". 2. In my assessment both of those submissions are wide of the mark. The plaintiff's submission represents an excessive assessment. The first defendant's submission pays insufficient regard to the plaintiff's disabilities, and it therefore represents an inadequate assessment. 3. The physical assessments undertaken by Associate Professor Fearnside and Dr Bodel have identified the plaintiff's continuing neck pain and restriction of movement, and her related headaches and right upper limb problems as being accident-related. In his oral evidence, Dr Bodel did not resile from his earlier expressed guarded prognosis for the plaintiff's neck problems. 4. The plaintiff's underlying psychological problems have made her vulnerable to reacting adversely to the deleterious effects of the accident, in the form of exacerbation, as was originally identified by Dr Morse. I consider Dr Morse's explanation, as to the nature of that exacerbation, represents a more reliable analysis compared to Dr McClure's more tentatively expressed view. Dr Morse has also identified a mild traumatic brain damage which has not been contradicted. 5. Dr Bodel was of the opinion that the plaintiff requires analgesic medication and specialised pain management treatment: Exhibit "C", Tab 2, p 117. He noted that in the past, the plaintiff had obtained occasional acupuncture and physiotherapy treatment when she could afford to do so: Exhibit "C", Tab 2, p 124. He considered further treatment posed a difficult issue. He considered the plaintiff needed an exercise-based programme to strengthen her neck and shoulder girdle, and she also needed referral to a pain clinic: Exhibit "C", Tab 2, p 127. 6. Professor Fearnside considered that the plaintiff would need to be reviewed from time to time by her treating doctors but no future treatment was required from a neurological perspective: Exhibit "C", Tab 2, p 171, p 181. 7. Dr Morse considered the plaintiff needed at least a trial of psychotropic medication under the supervision of a psychiatrist for her disturbed emotional state: Exhibit "C", Tab 2, pp 145 – 146. He considered that for as long as her physical symptoms continued this would be a cause for the plaintiff to have anxiety, reduced activity and depression into the future: Exhibit "C", Tab 2, p 158. 8. In my assessment, the exacerbation of the plaintiff's psychological condition as explained by Dr Morse, and which has significantly affected the plaintiff's functioning, and the enjoyment of the amenity of her life which was already impeded by having other health issues and the need to look after her disabled daughter. The defendant must take the plaintiff as she is found in that regard: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18]. Those matters when taken together with the physical disabilities and their effects as identified at [213] to [216] above, including surgical scarring indicates that a fair and appropriate sum to compensate the plaintiff for those matters, whilst not unfair to the first defendant, is the amount of $275,000. I therefore assess the plaintiff's damages for non-economic loss in the amount of $275,000. (b) Past personal care and domestic assistance 1. The plaintiff makes a claim for the value of the past domestic assistance she has received since the accident. The amount claimed is in respect of three consecutive periods, namely 26 weeks, 134 weeks and 51 weeks, to the total value of $60,834. That submission was later reduced to $52,500: MFI "16". The first defendant submitted that no allowance should be made for this head of damage. 2. The plaintiff's evidence on the topic of the need for past domestic assistance, including as summarised at [218] to [229] above, is in my view, insufficiently explanatory to justify a monetary assessment of that head of damage. That evidence was imprecise and mixed. It was of no assistance in identifying a quantifiable accident-related need for domestic assistance compared to her pre-accident situation. She has received some domestic assistance before and after the accident. I did not discern a coherent explanation in the evidence for an accident-related past need for domestic assistance that met the statutory assessment threshold. 3. The occupational therapy assessment undertaken of the plaintiff by Ms Dawson, noted (at p 5 of her report: Exhibit "C", Vol 1, Tab 2, pp 182 – 202), that she had difficulty obtaining a coherent history from the plaintiff: T269.38. Ms Dawson's assessment proceeded on the basis of the summary of the plaintiff's history (as recorded ibid, at p 6), as follows: "Ms Grigoriadis reported that prior to the injury she had a heart condition, high blood pressure, allergies and a lung problem. She reported to have some arthritis and denied any other injuries. She reported that she was independent in the performance of all of her usual personal and domestic tasks and cared for her daughter on a full time basis. She had limited domestic services from Homecare for 90 minutes per week to perform heavy domestic cleaning tasks only. Upon review of Ms Grigoriadis' medical notes it is evident that she had a pre-existing psychological condition diagnosed as a personality disorder. Post-accident, Ms Grigoriadis had difficulty with or was unable to perform routine daily living activities requiring heavy lifting, bending, reaching above shoulder level, right upper limb reaching and repetitive movements and prolonged standing. These limitations have resulted in a significant decrease in her contribution to domestic tasks. She has relied on some ad hoc commercial assistance and due to her stoic nature has persevered with other activities. Based on the functional abilities Ms Grigoriadis demonstrated during the assessment, commercial assistance for domestic tasks is recommended now and into the future." 1. Ms Dawson's initial assessment catalogued the plaintiff's capacity for mobility and her ability to perform the many activities involved in daily living. Her reasoning (at p 10 : Exhibit "C", Vol 1, Tab 2, pp 182 – 202) was as follows: "Ms Grigoriadis experiences ongoing pain, reduced strength and reduced range of motion in her neck, thoracic spine, right wrist and right shoulder with consequent functional limitations. Accordingly, she had difficulty performing activities that required prolonged standing, bending, heavy lifting/carrying, strenuous/repetitive right upper limb movements, and reaching above shoulder level. She therefore experienced difficulty with a number of domestic tasks. Ms Grigoriadis presented with significant psychological symptoms of anxiety and appeared to be quite agitated during the assessment. In his report dated 11 August 2015, Dr Peter Morse (Consultant Psychiatrist) concluded that "From the evidence available, in my opinion Ms Grigoriadis has experienced brain damage in the accident. It is difficult to outline the extent and nature of impairment in cognitive functioning compared to before the accident". He also provided a diagnosis of Adjustment Disorder with moderate to severe depression "because of her life situation due to the accident". Ms Grigoriadis presented with significant chronic pain and, as a result, she had ongoing difficulty managing her domestic responsibilities. Upon review of the medical information provided, it appears that Ms Grigoriadis' condition has stabilised. In his report dated 21 October 2015, Dr James Bodel (Orthopaedic Surgeon) assessed Ms Grigoriadis as having 31% whole person impairment in relation to her right shoulder and cervical spine injuries. He reported that "This lady's prognosis from the musculoskeletal point of view remains guarded because of the severity of the injury to the neck" and indicated that "She will require ongoing domestic assistance indefinitely." Based on my assessment of Ms Grigoriadis and the provided medical information, commercial domestic assistance is recommended to minimise aggravation of pain symptoms and ensure that Ms Grigoriadis is able to continue her current roles within her home." 1. Ms Dawson's first report did not identify an assessment for past domestic assistance. This appears to be because of the difficulty she experienced in obtaining a coherent history from her, as observed at [291] above. Ms Dawson therefore went on to consider the plaintiff's need for future domestic assistance. 2. Whilst Ms Dawson concluded that the plaintiff would in the future need assistance with domestic chores to the extent of 8 hours per week, I do not consider that evidence to be a reliable basis for inferring that there was a similar extent of need for such assistance in the past. 3. Ms Dawson's future domestic care recommendations for the plaintiff comprised: 2 hours per week to vacuum and mop floors and to clean the bathroom; 1.5 hours per week to change bed linen, and to wash and hang out sheets and towels; 1.5 hours per week for shopping assistance for bulky items; and 3 hours per week for meal preparation assistance. 4. On the premise that there was no-one else available in the household to carry out those tasks on an ad hoc gratuitous basis, Ms Dawson recommended (at p 11: Exhibit "C", Vol 1, Tab 2, pp 182 – 202), the supply of commercial domestic assistance at $46.94 per hour at Home Care rates, which equates to $375.42 per week. Those rates have since been updated by agreement in final submissions. 5. On 28 February 2018, Ms Dawson prepared a supplementary report in which she confirmed her earlier identified recommendations for future domestic assistance for 8 hours per week. It appears she remained unable to assess the plaintiff's past need for domestic assistance because of the same prior inability to obtain a coherent history from the plaintiff. 6. In that supplementary report, Ms Dawson addressed the plaintiff's need for domestic assistance due to her experience of chronic neck, thoracic and right upper limb pain, and related functional limitations that caused her difficulty or inability to perform routine daily living activities requiring heavy lifting, repeated upper limb tasks such as reach above shoulder level and prolonged standing. At that time, Ms Dawson noted the plaintiff's stoic nature, and her continued efforts to persevere with other activities. 7. In contrast, at the request of the first defendant, Ms Taylor-Fick's estimated assessment of the extent of past domestic assistance received by the plaintiff was broken up into activities comprising meal preparation and cooking, washing and putting away dishes, household cleaning, bed making, laundry and shopping. She identified her estimate of that assistance as follows: 1. For the first 10 days post-accident, 3 hours per week; 2. For the ensuing 8 weeks, 8.5 hours per week; 3. For the ensuing 5 weeks, 7 hours per week; 4. For the ensuing 4 weeks, 3 hours per week; 5. For the ensuing period (to the date of her assessment on 3 May 2016), being 74 weeks, 3.5 hours per week. 1. On 2 August 2018, the occupational therapists met in conclave and a joint report of the effect of their meeting was transcribed: Exhibit "D". In that conclave report, Ms Dawson again noted (at p 9 of Exhibit "D"), that at her initial assessment, the plaintiff appeared confused, had difficulty remembering events following the accident, and that her psychological distress at that time made it difficult for her to accurately assess the level of care the plaintiff had received since the accident. 2. Ms Dawson agreed (at p 11 of Exhibit "D"), that Ms Taylor-Fick's views, as summarised at [299] above were considered to be reasonable, based on the nature of the plaintiff's injuries and her assessed functional capacity. 3. It follows from the matters set out in the preceding paragraphs, that the evidence of the plaintiff's post-accident need for past domestic assistance in the period up until the hearing, does not meet the minimum statutory threshold of 6 hours per week for 6 months for assessment of damages: s 141B(3) of the MAC Act. Accordingly, I find that the plaintiff is not entitled to any damages for past domestic assistance. (c) Future personal care and domestic assistance 1. The plaintiff makes a claim for future domestic assistance assessed at commercial rates, for 8 hours per week in the total projected sum of $304,200. That submission was later reduced to $267,300: MFI "16". That submission was based on a reduced claim of 6.5 hours per week projected over 31 years (x 833.8) at the updated rate of $49.32 per hour. The first defendant submitted that no allowance should be made for this head of damage. 2. Both Ms Dawson and Ms Taylor-Fick agreed that the plaintiff will continue to require assistance in performing domestic household tasks in the future because of the effects of the accident, but they disagreed on the number of hours that are required to fulfil that need: Exhibit "D", pp 11 – 15. 3. Ms Dawson stood by her original assessments to the effect that the plaintiff will need 8 hours per week for future domestic assistance, whereas Ms Taylor-Fick took a different view. 4. Ms Taylor-Fick pointed out that in any assessment the plaintiff's need for domestic assistance was multifactorial, and that in view of the fact that the plaintiff was receiving 1.5 hours per week for domestic assistance prior to the accident for tasks involving heavy domestic cleaning, she considered the effects of the plaintiff's injuries did not amount to a significant (or apparently assessable) post-accident need for domestic assistance: Exhibit "D", p 13. 5. In my view, as indicated in the summary in the preceding paragraph, Ms Taylor-Fick has correctly identified a substantive need to discount Ms Dawson's assessment of the claim for future domestic assistance. 6. Ms Taylor-Fick concluded that the plaintiff's reasonable post-accident injury-related need for domestic assistance would be met by a total of 90 minutes for assistance with household cleaning, assistance with hanging out heavier laundry items and changing bedding: Exhibit "D", p 14. In my view, that estimate is inadequate for the tasks involved. I do not accept Ms Taylor-Fick's formulation on the grounds of insufficiency of the time allowed for those tasks. Furthermore, her assessment does not make adequate allowance for assistance with shopping. 7. In my assessment, the plaintiff should be provided with damages to cover the cost of 4 hours of accident-related commercially provided domestic assistance. However, that allowance should be the subject of two relevant discounting factors. The first being for the period of time over which the projection should be made on account of the plaintiff's pre-existing and unrelated health problems which are likely to adversely impact upon her ability to carry out domestic tasks as she ages, irrespective of the effects of the accident. The second being for conventional vicissitudes which are usually accommodated by a 15 per cent discount on a projected calculation. 8. In identifying the need for discount, I am cognisant of the need to avoid a double discount, or over-discounting, because the conventional discount of 15 per cent is for factors that overlap with the discount for the likely consequences of the plaintiff's other adverse health issues. A balance is therefore required. The balancing exercise, by its nature, cannot involve precision. It is necessarily intuitive. 9. The plaintiff is presently aged 58 years. In my opinion, the required balance in the assessment of this head of damage is fairly achieved by limiting the projection period for the future domestic assistance claim to 20 years rather than the plaintiff's remaining statistical mean life span of 30 years, and limiting the vicissitudes discount on that projection to 5 per cent: Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53, at [19]. 10. An allowance of 4 hours per week at the updated rate of $49.32 per hour, or $197.28 per week, projected over 20 years on the 5 per cent actuarial tables (x 666.4) and discounted by 5 per cent for vicissitudes yields the sum of $124,894. I therefore assess the plaintiff's damages for future paid domestic assistance at $124,894. (d) Future s15B damages – care for daughter 1. The plaintiff claimed $740,214 for the value of future care provided to her disabled adult daughter. That claim proceeded upon the basis of a calculated projection of 18 hours per week for the balance of the plaintiff's remaining life expectancy of 31 years (x 833.8) at the commercially paid rate of $49.32 per hour, without discount. 2. The first defendant submitted that no allowance should be made for this head of damage: MFI "21". The first defendant argued that as the plaintiff was in receipt of a carer's pension in respect of her care of her disabled daughter, where that pension was paid pursuant to the Social Security Act 1991 (Cwth), she is not entitled to damages pursuant to s 15B of the CL Act. That submission derives from the wording of s 15B of the CL Act, namely the description "providing the service has not been paid or is not liable to be paid", this being the definition of "gratuitous domestic services" in that Act. 3. It is not necessary to determine that point because there is no claim for past gratuitous services within the meaning of s 15B of the CL Act. However, it is necessary to consider the point in a more general sense in respect of the claim for future domestic services relating to the claimed need to provide care for the plaintiff's disabled daughter. 4. In my view, contrary to the submission of the first defendant, the fact that the plaintiff receives a carer's benefit in respect of her daughter's disability does not preclude an award of s 15B damages. This is because: 1. The carer's benefit is not a payment for defined physical tasks or services provided by reference to an hourly rate. Instead, it is a payment based on the existence of the status of being a carer, having satisfied an assets test. It is a payment in the nature of an income support; 2. If s 15B damages were to be awarded, that event would trigger a repayment of benefit obligation and a period that would preclude the plaintiff from receiving further benefits for a calculated time: s 1160 and s 1184 of the Social Security Act 1990 (Cwth), as explained in Insurance Australia Ltd t/as NRMA Insurance v O'Rourke [2017] NSWSC 494, at [8], [35], [69]-[72], following Redding v Lee (1983) 151 CLR 117; [1983] HCA 16, at [71]. 1. To the extent that the first defendant's argument was based on the decision in Todd v Bluescope Steel (AIS) Pty Limited [2006] NSWDDT 33, the plaintiff argued, correctly in my view, that decision is distinguishable from the facts of the present case because it turned on the factual question of whether payment had been made for the service comprising care: [139]; [141]. The factual distinction identified by the plaintiff in the present case was not identified or considered in that case. 2. Ms Dawson's initial assessment of the plaintiff's need for domestic assistance to care for her daughter was the subject of a separate addendum report dated 3 April 2018. In summary, she concluded that the plaintiff had an accident-related need for the provision of assistance to care for her daughter as being 4 hours per week for outings and 2 hours per day, or 18 hours per week, to provide personal care and assistance with showering, brushing of hair, trimming toe nails as required, washing bed linen, meal and snack preparation and the provision of suitable activities. She quantified those recommendations at $1,053.04, being: 1. $51.87 hours for 14 weekday hours ($726.18); 2. $72.70 per hour for 2 Saturday hours per week ($145.40); 3. $90.23 per hour for 2 Sunday hours per week ($180.46). 1. At this point it is relevant to observe that the pre-accident domestic arrangement for the care of the plaintiff's daughter was an arrangement that was shared between the plaintiff and her estranged husband. The plaintiff has been in receipt of a carer's pension for that activity. 2. In order to assess this component of the plaintiff's claim it is necessary to survey the undisputed evidence as to what needs to be done to care for the plaintiff's disabled daughter to determine whether there is reliable evidence that the plaintiff is no longer able to carry out those tasks herself to meet her daughter's needs. That survey of the household routine reveals that: 1. A passive supervisory presence in the house is required between 9.00pm and 6.00am whilst the daughter sleeps: T30.36. Pre-accident, that need was fulfilled by the plaintiff and her estranged husband who lives in the separate quarters in the premises; 2. In the mornings between 6.00am and 7.30am the daughter occupies herself: T30.40. Between about 7.30am and 8.30am she is prepared for the day's activities; 3. In the mornings, between 7.30am and 8.30am, after rising, the daughter is prepared for the day. Breakfast is variously prepared for her by her father or by the plaintiff, a sandwich is made for her, and fruit is cut up for her: T28 – T29; 4. On weekdays, it seems for four days per week, the daughter attends North West Disability Centre. She is collected from home at 8.30am and her father collects her from that centre and brings her home by 3.30pm: T28.26 – T28.45. That regime has prevailed both before and after the plaintiff's accident; 5. In the afternoon the daughter is occupied with watching television, reading books within her range of abilities, typing on an electronic tablet device or on a computer. This activity is undertaken in circumstances of a general supervisory presence in the background: T29 – T30. The accident has not changed that activity; 6. The daughter cannot be left alone for any extended period: T31.24. She is taken on occasional outings and needs to have her hand held whilst crossing the road: T31.4 – T31.21, T32.7. She needs to be given water when needed: T31.37; 7. Each day Baptist Care provides between half an hour to an hour to organise things for the daughter. This was in addition to the personal care the plaintiff received for about an hour a day for some months after the accident. For about a year, the plaintiff utilised carers from Baptist Care to shower her daughter until she could take over the task herself: T46.41 – T47.49. It seems this assistance was government funded: T47.40; 8. As a result of the plaintiff's disabilities, she is not as active in assisting her daughter with activities, such as with art and craft, and as a result, she stated that her daughter is not as happy as she was previously: T51.19 – T51.27. 1. Whilst it is agreed that the plaintiff receives a carer's pension in respect of her daughter and her daughter receives a disability support pension, and whilst it is also agreed that regime existed both before and after the accident (T159.11 – T159.17), in view of the analysis at [314] to [317] above, the carer's pension is not a relevant consideration. 2. As to the basis of Ms Dawson's recommendations for the future care of the plaintiff's daughter, in my view, those recommendations do not sit well with and do not reasonably equate to the evidence of the plaintiff as to the daughter's needs as summarised at [321] above. I therefore do not accept Ms Dawson's formulation of 18 hours per week. It does not bear a true or sufficiently similar relationship to the evidence of what the daughter's needs have been shown to be on the evidence adduced: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. 3. In my assessment, the matters listed at [320] above indicate that the daughter's needs are largely of a supervisory and organisational nature. In my view, the activities relating to the care of the plaintiff's daughter do not require the plaintiff to apply and expend her physical and emotional resources beyond her post-accident ability, capacity or endurance so as to justify a claim in respect of this head of damage. Dr Bodel's opinion to the contrary (at T261.36), is not supported by a level of cogent reasons compliant with UCPR Sch 7 that would make his opinion compelling on this topic. I find that this component of the plaintiff's claim has not been made out on the evidence adduced. I therefore make no award of damages for the future care of the plaintiff's daughter. (e) Future medical and out-of-pocket expenses 1. The plaintiff initially claimed for future medical and out-of-pocket expenses in the sum of $79,239.30. This was later reduced to $50,000: MFI "16". In contrast, initially the first defendant submitted that the appropriate assessment for this head of damage is $2,500. The first defendant later submitted no allowance should be made to this head of damage: MFI "21". 2. A survey of the various medical reports tendered with regard to the future treatment recommendations has already been undertaken and this has been set out at [288] to [291] above. In that regard, Dr McClure and Dr Morse agree that the plaintiff would benefit from consultations with a clinical psychologist for treatment of her anxiety, depression and phobic symptoms. They suggested regular treatment for between 10 to 15 sessions at about $250 per session. This equates to $3750. 3. Those experts also agree that the plaintiff requires referral to a psychiatrist for further assessment and treatment, including with psychotropic medication. Although there was doubt that the plaintiff would accept a referral of that kind, consistent with the obligation to mitigate damages, I consider that a buffer allowance should be made for this component of the plaintiff's treatment needs over the remainder of her lifetime, due to the entrenched nature of her personality disorder, and the effect that the accident has had upon that underlying condition. 4. Dr Bodel supported the claim for an allowance for future treatment in the form of supervision from a general practitioner, medication and physiotherapy: T265.10; T264.36; T265.15. Those suggestions are not capable of precise estimation or projection, but they must nevertheless be taken into account in selecting an appropriate buffer amount for future treatment expenses. Having regard to all of those factors I assess the plaintiff's damages for future treatment in a buffer amount of $15,000. (f) Past out-of-pocket expenses 1. The plaintiff made a claim for past out-of-pocket expenses in the sum of $23,497.86. It appears from the evidence that part of that claim was for the plaintiff's payment to a cleaner to come to the house for 3 hours per fortnight at the rate of $25 per hour, or $37.50 per week: T52.35 – T52.50. On 22 March 2019, after judgment was reserved, the parties identified an agreement that the plaintiff's past out-of-pocket expenses should be assessed at $16,100. Accordingly, I assess the plaintiff's damages for past out-of-pocket expenses in the amount of $16,100. Summary of damages assessment 1. My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $275,000 (b) Past domestic assistance $Nil (c) Future domestic assistance $124,894 (d) Future care for daughter $Nil (e) Future treatment expenses $15,000 (f) Past out-of-pocket expenses $16,100 Total $430,994 Disposition 1. The plaintiff is entitled to a verdict and judgment in her favour as against the first defendant, in the amount of $430,994. The Nominal Defendant is entitled to a judgment in its favour as against the plaintiff. Costs 1. I will hear the parties on the question of the appropriate orders to be made in relation to costs. Orders 1. I make the following orders: 1. Verdict and judgment for the plaintiff against the first defendant in the sum of $430,994; 2. Verdict and judgment for the second defendant on the plaintiff's claim against the second defendant; 3. I will hear the parties on the question of costs; 4. The exhibits are to be returned; 5. Liberty to apply on 7 days notice if further or other orders are required. ********** 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: 13 September 2019