Henley v Tu [2009] ACTSC 37 (3 April 2009)

TORTS – negligence – motor vehicle accident – vehicle entering carparking space struck open door of vehicle in adjoining space – plaintiff suffered from complex regional pain syndrome involving injuries to left arm and shoulder region and depression – whether defendant failed to take steps to avoid accident – whether defendant paid proper attention – whether plaintiff guilty of contributory negligence in not keeping proper lookout – award of damages

Held: defendant liable and plaintiff guilty of contributory negligence – contributory negligence assessed at 50 per cent and damages awarded to plaintiff reduced accordingly.

EVIDENCE – rule against admissibility of opinion evidence – exception for expert evidence – accountant’s report tendered – objection on basis that opinions therein not wholly or substantially based on specialised knowledge – effect of abolition of rule against admissibility of opinions about matters of common knowledge

Heydon JD, Cross on Evidence (7th Australian ed, LexisNexis Butterworths, 2004)

1. The parties are to be heard as to the appropriate orders and on the question of costs.

1. On 1 October 2002, the plaintiff suffered an injury when the defendant’s motor vehicle struck her motor vehicle. At first, the plaintiff’s injuries appeared quite minor, but, as time passed, they developed into serious injuries which have had, and continue to have, a significant impact on the plaintiff’s quality of life and working capacity.

2. The plaintiff brings this action against the defendant, claiming damages for the tort of negligence. The defendant denies liability and, in the alternative, she alleges that the plaintiff was guilty of contributory negligence. In her defence, the defendant denied that the plaintiff suffered loss and damage as a result of the accident, but, by the conclusion of the trial, the defendant accepted that the plaintiff suffered and continues to suffer significant disabilities as a result of her injuries.

3. The plaintiff alleges that the defendant was negligent in that she drove without due care and skill failed to keep any or any proper lookout failed to see the plaintiff’s vehicle in sufficient time to avoid the accident or at all failed to stop, slow down, swerve or in any other way to manage or control the vehicle so as to avoid the collision; and drove at a speed which was excessive in the circumstances. As I have said, the defendant denies liability and, in the alternative, alleges contributory negligence. The particulars of contributory negligence are that the plaintiff failed to keep any or any proper lookout; failed to see the defendant’s vehicle in sufficient time to avoid the collision or at all; failed to take reasonable care, or any care at all, when opening her car door; opened her car door when the defendant’s vehicle was pulling into the carpark next to the plaintiff’s vehicle; opened her car door into the path of the defendant’s vehicle; opened her car door when it was not safe to do so; and failed to take proper care for her own safety.

4. It is common ground that, on 1 October 2002, the plaintiff’s 1989 Nissan motor vehicle was lawfully parked in the carpark at Canberra City Markets, Civic, in the Australian Capital Territory (“the carpark”) and that, at the relevant time, the defendant was the driver of a Mazda motor vehicle in the carpark. It is common ground that, at this time and place, the defendant’s vehicle struck the driver’s side door of the plaintiff’s vehicle. The plaintiff’s case is that, at the time of the accident, she was holding the door with her left hand and that, as a result of the collision, she suffered an injury to her left shoulder and left hand.

5. At the conclusion of the evidence, it was not in dispute that the plaintiff had parked her vehicle in a carparking space in the carpark. She was about to alight from the vehicle when the defendant’s vehicle pulled into the carparking space immediately to her right. As the plaintiff opened the driver’s side door of her vehicle, it was struck by the defendant’s vehicle. At the conclusion of the evidence, it was not in dispute that the part of the defendant’s vehicle which struck the plaintiff’s driver’s side door was that part at or above the front left wheel arch. It seems that the impact was not a particularly forceful one and that the defendant’s vehicle was travelling at a relatively slow speed at the time of the collision.

6. On the plaintiff’s case, she has suffered severe injuries as a result of the accident, and those injuries include what is called a complex regional pain syndrome affecting her left arm and shoulder region, and depression. On the plaintiff’s case, quite debilitating symptoms have resulted from those injuries. In addition to damages for pain and suffering, the plaintiff claims substantial amounts by way of past and future medical expenses, past and future economic loss, and past and future care.

7. The plaintiff called five witnesses: herself; the plaintiff’s husband; the plaintiff’s friend, Ms Belinda Johnson; an accountant, Mr Geoffrey Davis, and a medical practitioner, Dr Geoffrey Champion. Ms Johnson, Mr Davis and Dr Champion were honest and straightforward witnesses and I have no hesitation in accepting their evidence. For reasons I will give, there are aspects of evidence given by the plaintiff and her husband which I do not accept.

8. The defendant called one witness: herself. For the most part I accept her evidence, although, for reasons I will give, there are some aspects of her evidence which I do not accept.

9. In addition to the oral evidence, each party tendered a number of documents in support of her case.

10. The carpark no longer exists and what follows is a description of it as it existed in October 2002. The carpark consisted of three levels: a ground level, a first level (on which the accident took place) and a second level. Neither party put forward a plan of the first level showing the precise layout of the carpark and details such as the width of the carparking spaces. Each party put forward a drawing of the first level, but those drawings did not purport to be precise drawings of the layout of the first level. Nor did they show details of matters such as the dimensions of the carparking spaces.

11. There was a barrier to the entrance to the first level, which was not removed during the morning until some time after the second level had been opened. The plaintiff said that the first level opened at some time between 9.00 am and 9.30 am; “It just depended”. The carparking spaces on the first level were delineated by lines on the surface and there were arrows also marked out on the surface, indicating the correct direction of travel for motor vehicles circulating within the first level. The carpark on the first level had direct access to the shops.

12. On 1 October 2002, the plaintiff was working for a company trading under the name “Soho Dezigns”. She drove to the first level of the carpark and she planned then to walk to her place of employment. Her usual practice was to try and park as close as possible to the shopping centre. She entered the first level at about 9.25 am and before the defendant. The first level was “opening as [she] was getting there”. The plaintiff said that there were vehicles ahead of her as she entered the first level but she could not remember how many vehicles. She agreed that it was not hundreds of vehicles. She drove to a carparking space in accordance with her practice, and that was some distance from the entrance. The plaintiff said that she followed the arrows marked out on the surface of the first level to the carparking space she had selected, although she could not remember whether she went to the left or the right, and she could not remember the distance she travelled. The plaintiff said that the accident occurred about one minute after she had parked her vehicle. In that minute, she alighted from her vehicle and closed the driver’s side door. She then remembered that she had not secured her stereo and she re-entered her vehicle so that she could do so. The plaintiff left the door “a little bit open” after opening it to get back into the vehicle to retrieve her stereo. When back in her vehicle, and as she was retrieving her stereo, the plaintiff noticed the defendant’s vehicle, and she said that it was about 20-30 m away, and on her left. The plaintiff said that the defendant’s vehicle was travelling against the arrows. The plaintiff then looked out of her vehicle and in the mirrors of her vehicle, and went to alight from the vehicle.

13. The plaintiff had a particular way of alighting from her vehicle. The vehicle was a Nissan EXA Targa, “a two door sports”, and was low to the ground. The plaintiff is left-handed and the driver’s side door was heavy. The plaintiff said that she alighted from the vehicle by pushing the driver’s side door open with her right hand and then swinging herself around so that she was facing the driver’s side door. She would then place her left hand on the door handle and her right hand on the door frame. She would place her right foot on the ground and swing her left foot around. She did this on the day of the accident and was in a crouching (or semi-crouching) position with the driver’s side door open to a distance of about 60 cm when the accident happened. As to the position of the defendant’s vehicle, the plaintiff said that: “She came out of nowhere. I can’t recall.”

14. The defendant’s vehicle collided with the driver’s door of the plaintiff’s vehicle and the impact caused the door to go forward and then back. The plaintiff had her left hand on the door handle and was thrown back into her seat. The plaintiff described the effect on her as follows: “I just felt like I pulled a muscle on my left arm onto my neck.”

15. The plaintiff said that the defendant got out of her vehicle and inspected the damage. She said nothing. She then re-entered her vehicle, reversed the vehicle, and then went forward to park. The plaintiff said that the defendant parked in front of, but to the right of, the plaintiff’s vehicle.

16. A conversation ensued in which each party accused the other of being at fault, and licence details were exchanged. The plaintiff gave the defendant her husband’s mobile telephone number. The plaintiff said that the defendant was aggressive towards her. The plaintiff noticed some white paint on the door of her vehicle.

17. The plaintiff then went to work. At about 11.00 am she left work, collected her vehicle and drove to the Canberra Institute of Technology (“CIT”) to collect some books. When she later returned to the carpark, she could not park in the same carparking space and in fact was required to park on the second level.

18. The plaintiff went to the police station at lunchtime on the day of the accident but there was no one in attendance. She attended another police station that evening and obtained a form to complete in order to report the accident. The plaintiff completed the form overnight and returned it to the second police station the following morning.

19. In the course of cross-examination, the plaintiff said that she had seen the defendant’s vehicle prior to seeing it on her left and she said that she had seen it some time beforehand. The plaintiff said that, before alighting from her vehicle the first time, she looked to her right (which was the direction from which, on the plaintiff’s case, the defendant’s vehicle should have come from) and she looked behind her and in the mirrors. When asked whether she looked before attempting to alight from her vehicle the second time, the plaintiff said:

20. In the course of re-examination, the plaintiff said that the defendant’s vehicle was at the barrier or boom gate when she first saw it from her vehicle.

21. I do not accept the plaintiff’s evidence that, in the period before the accident, she fully alighted from the vehicle and then re-entered it to retrieve her stereo. I do not accept her evidence that, on re-entering the vehicle, she left the driver’s side door slightly open, or that, in the course of retrieving her stereo, she saw the defendant’s vehicle on her left. I reject that evidence for the following reasons.

22. First, the evidence is inconsistent with key aspects of the defendant’s evidence, which I accept. The defendant said that from the entrance she drove to a carparking space some distance in front of her and slightly to the right. She drove across vacant carparking spaces to the carparking space she had selected. She ignored the arrows rather than drove against them (in the sense of in the direction opposite to that indicated by the arrows). She saw the plaintiff’s vehicle entering a carparking space. The position of the plaintiff’s vehicle in relation to her vehicle was that it was some distance in front of her and to her left. She entered the carparking space she had selected from behind, indeed, she said, directly from behind.

The fact that I accept the defendant’s evidence on these matters means that the plaintiff would not have had sufficient time to alight fully from her vehicle and then re-enter it before the events immediately preceding the collision. In addition, if she had done that, her actions would have been seen by the defendant, and they were not. Furthermore, the plaintiff could not have seen the defendant’s vehicle on her left because it was never on her left.

23. Secondly, I reject her evidence on the matters outlined in the previous paragraph because there were other aspects of her evidence which were unsatisfactory and which affect her reliability as a witness. In reaching that conclusion, I have taken into account the fact that, at the time the plaintiff gave evidence, she was taking a considerable amount of medication. The plaintiff is clearly angry about what has happened to her and she sees the defendant as the cause of her problems. Specific matters which lead me to conclude that the plaintiff was not a satisfactory witness are as follows:

(1) The plaintiff’s vehicle was insured by Lumley General Insurance, and, after the accident, the plaintiff completed an accident report with the assistance of her husband. She dictated the answers and her husband wrote them down. The plaintiff said two things of significance in the accident report. First, she said that, after the accident, the defendant admitted that she was driving too fast and did not see her driver’s side door. That is inconsistent with her oral evidence, in the course of which she said that the defendant accused the plaintiff of being at fault. Secondly, she said that her estimate of the speed of the defendant’s vehicle at a point 50 m before impact was 60 km/h, and at impact was 20 km/h. Having regard to the point of impact on the plaintiff’s vehicle, namely, the end of the driver’s side door, and the relatively minor damage done (see the discussion below at [26]), I think it is highly unlikely the defendant was travelling as fast as 20 km/h at the time of impact, and, having regard to the defendant’s evidence, I find that the defendant was never travelling at a speed anywhere near 60 km/h at any time while on the first level of the carpark.

(2) Even if, at some point before the accident, the plaintiff did lean over to her left to retrieve the stereo from her glove box, it is difficult to accept her evidence that she did so by using her right, non-dominant, hand, rather than, as one would have thought more natural, her left, dominant, hand.

(3) I accept the defendant’s version of the events after the accident, and it is inconsistent with the plaintiff’s version. I find that the plaintiff did not move her vehicle from the carpark at the time she said she did, and I find that, after the accident, the plaintiff and the defendant spoke on the telephone on two occasions on that day. I refer to my summary of the defendant’s evidence set out below ([34-45]).

(4) The plaintiff gave evidence that she was holding the driver’s side door handle with her left hand at the time of the collision, and I accept that evidence. However, her evidence during the course of cross-examination about whether the driver’s side door hit her left shoulder was confusing and unsatisfactory.

24. Mr Henley gave evidence. Until a month before the trial, he worked for an insurance company as a manager. He was unemployed at the time of the trial. He said that, during the morning of the day of the accident, he received a telephone message from his wife to the effect that she had had an accident and that the other female involved in the accident would be contacting him. Between about 12 noon and 1.00 pm, and while having lunch with a client, Mr Henley received a telephone call from the defendant. The defendant was aggressive and said, a number of times, “You pay, you pay”. Mr Henley said that he told the defendant that the insurance company could sort that out and that the important thing was that no one was injured. He gave the defendant the name of the insurance company and “confirmed our registration”.

25. Mr Henley inspected the plaintiff’s motor vehicle that night and, shortly thereafter, he took the vehicle to a crash repairer, John Crossley Pty Ltd. A copy of that company’s estimate of the costs of repairing the vehicle dated 4 October 2002 was tendered in evidence.

26. Mr Henley described the damage to the plaintiff’s vehicle. There was white paint on the inside of the door and the door would not close properly. The door made a grinding sound. Mr Henley was present when “Ron” from John Crossley Pty Ltd inspected the door. Ron was able to adjust the door on the spot. The screws on the hinges of the door were tightened. There were two white spots on the end of the door, and a diagram prepared by Mr Henley showing the two white spots was tendered in evidence.

27. Mr Henley described the assistance he provided to his wife after the accident and his past and present involvement in carrying out domestic duties. His evidence is not entirely clear because it was not always clear whether he was dealing with the position before his son was born in March 2008 or after he was born. He was required to do a lot more after his son was born.

28. Mr Henley described the plaintiff’s vehicle. It was very low to the ground; it came with standard low profile tyres, and it was driven in a “lie-down” position. It was difficult to get in and out of the vehicle, and the plaintiff did that by twisting around and placing her left hand on the door, putting her other hand either on the seat or the door sill and “you throw one leg out and you twist and lift yourself up out of the vehicle”.

29. Mr Henley said that, before the accident, he and the plaintiff planned that they would set up a business involving designing clothes, with Mr Henley doing the “actual business side of it” and the plaintiff designing clothes.

30. The damage to the plaintiff’s vehicle was assessed by assessors and loss adjustors acting on behalf of the plaintiff’s insurer. David E Barber Pty Limited, assessors and loss adjustors, assessed the damage as being a minor dent in the trailing edge of the front driver’s side door above the mould.

31. Mr Henley was cross-examined about his wife’s answers on the accident report (see [23(1)] above). He wrote down what his wife told him. This included her estimate of the speed of the defendant’s vehicle at the point of impact (20 km/h) and 50 metres from the point of impact (60 km/h). When pressed as to whether he queried these speeds with his wife, he said he wrote down what his wife had said occurred. I did not find his evidence on this point convincing and I have taken that into account in assessing his evidence as a whole.

32. I accept Mr Henley’s evidence subject to two qualifications. First, I accept the defendant’s evidence as to the timing and content of her telephone conversation with Mr Henley in preference to the evidence of Mr Henley. Secondly, I think he was inclined to exaggerate the time he spent performing domestic duties before his son was born. I accept the estimate in the Amended Statement of Particulars filed on 26 May 2008 of 10 hours per week in preference to his estimate in evidence of 2 hours per day during the week and 10 hours over the weekend.

33. The plaintiff’s friend, Ms Belinda Johnson, gave evidence. She described how the plaintiff customarily exited her vehicle. She said that the plaintiff was left-handed and that her vehicle was a very low sports car. The plaintiff “always opened the door with her right hand, turned around, both feet on the ground, held the door with her left hand and pulled herself up”. In describing the “turning around” movement, Ms Johnson said she turned around on her bottom “with both feet on the ground while still sitting, holding the door with her left hand to help her up”. As I have said, I accept Ms Johnson’s evidence.

34. The defendant was 33 years old at the time of the accident, and she was employed by the Australian Taxation Office in the area of information technology. She regularly parked in the carpark. She said that the second level of the carpark opened before the first level and that the latter opened at about 9.30 am. On 1 October 2002 the defendant arrived at the carpark at about 9.20 am and waited in a queue of vehicles at the entrance to the first level.

35. The defendant said that she drove straight towards the carparking space she had selected. The carparking space was some distance from the entrance and slightly to the right of a straight line from the entrance. The defendant said that there were a number of vacant carparking spaces. She said that she did not follow the arrows marked out on the surface and that she drove straight to the carparking space she had selected, across vacant carparking spaces. She said that she was travelling at a speed of 2-3 km/h.

36. The defendant said that, as she was driving towards the carparking space she had selected, she saw the plaintiff’s vehicle on her left hand side driving into her carparking space. The defendant said that she entered her carparking space directly from behind and that, at that time, the driver’s side door of the plaintiff’s vehicle was not open. As the defendant drove into the carparking space she had selected, the area above her front wheel panel collided with the door of the plaintiff’s vehicle. At that time, she was about two-thirds of the way into her carparking space.

37. The defendant said that, after the accident, she had a conversation with the plaintiff and the plaintiff said words to the effect of, “Sorry, are you okay?” and the defendant said, “I am fine”. The defendant said that she saw only minor damage to her vehicle and no damage to the plaintiff’s vehicle. She said that the parties exchanged details from their respective licences and that there was a discussion about insurance. The plaintiff told the defendant that her husband worked for an insurance company and could get repairs done cheaply and that there was no need to report the accident to the police or the insurance companies. The parties exchanged telephone numbers. The defendant said that she parked her vehicle in the carparking space immediately to the right and next to the plaintiff’s vehicle.

38. The defendant then went to work. About half an hour later, the plaintiff contacted the defendant by telephone. She said to the defendant that she had been speaking to her husband and that she considered the defendant responsible for the accident. The defendant disputed this, and, eventually, said that she would report the matter to the police and her insurance company.

39. The defendant contacted her insurance company and went to report the accident to the police. As she had forgotten to obtain the registration number of the plaintiff’s vehicle, she contacted the plaintiff by telephone. The plaintiff told her that she could speak to her husband and she gave the defendant her husband’s telephone number.

40. The defendant contacted the plaintiff’s husband by telephone to obtain the registration number of the plaintiff’s vehicle. The plaintiff’s husband asserted that the accident was the defendant’s fault and the defendant asserted that it was the plaintiff’s fault. In the course of the conversation, the plaintiff’s husband said to the defendant that if he found that his wife was in any stress or that his vehicle was damaged then he knew where the defendant lived and he would come and find her.

41. The defendant did not obtain the registration number of the plaintiff’s vehicle so she went to the carpark, found the plaintiff’s vehicle in the same carparking space and obtained its registration number. Later that day, the defendant received a claim form from her insurance company. She returned to the carpark to obtain the make and model of the plaintiff’s vehicle. She found the plaintiff’s vehicle, although it had been moved and was in a different carparking space.

42. The defendant was cross-examined at length by the plaintiff’s counsel who submitted that she was an unreliable witness. I agree that her estimates of speed and distance must be approached with considerable caution. She said that she drove at a speed of 2-3 km/h when traversing the vacant carparking spaces. Although I am unable to make a finding as to the speed of her vehicle, it seems to me she must have been travelling faster than that. In her answers to interrogatories, she said, in answer to a question as to the speed she was travelling when the collision occurred, that she was “rapidly decelerating from 1-2 kilometres/hour”. Again, that statement cannot be right, as the defendant herself seemed to acknowledge in cross-examination. In answering one of the interrogatories, the defendant prepared a diagram showing her direction of travel and the position of the plaintiff’s vehicle when she first saw it. In cross-examination, she admitted that matters shown in the diagram were not strictly accurate; her direction of travel was more to the right and the plaintiff’s vehicle was closer to the carparking space it eventually parked in than was shown in the diagram. In answering one of the interrogatories, the defendant said the plaintiff’s driver’s side door was open to a distance of 30 cm at the point of collision, whereas in evidence she said it was more than this, and perhaps double that distance. In answering one of the interrogatories, the defendant said that she had braked before the collision, whereas, in evidence, she said that she had misunderstood the question, and had braked after the collision had happened.

43. Towards the end of her cross-examination, the following exchange took place in relation to the defendant’s answers to interrogatories:

44. The plaintiff also submitted that the defendant’s evidence of the conversation and events on the day of the accident was inconsistent with evidence given by the plaintiff and Mr Henley. That is true, but the fact is I accept the defendant’s evidence of those conversations and events.

45. In my opinion, the defendant was a witness of truth. There were difficulties with her evidence, and they were identified by the plaintiff’s counsel and are referred to above. They suggest that her evidence of speed and distances should be approached with caution. However, they do not (as the plaintiff submitted) lead to the conclusion that all of her evidence should be rejected. Her evidence was, for the most part, consistent and given in an objective manner. I found convincing her evidence that she drove across the vacant carparking spaces to the space she had selected and her evidence of the plaintiff’s husband’s threat.

46. Before stating my conclusions on liability, there are three matters I should address. The three matters are the inferences (if any) which should be drawn from the damage to the vehicles, the inferences or conclusions (if any) which should be drawn from the conversations and events after the accident and the significance (if any) of the plaintiff’s method of alighting from her vehicle.

47. The damage to the plaintiff’s vehicle was minor, consisting of a minor dent on the trailing edge of the front driver’s side door and some white paint marks on the end of that door. I am prepared to accept that the hinges of the door were loose, but I do not think any particular significance should be attached to that fact. It was quickly fixed by the crash repairer. The damage to the defendant’s vehicle was also minor, consisting of minor scratching around and above the front passenger’s wheel arch. I think I should infer that the defendant’s vehicle was travelling at a relatively slow speed at the time of impact. I do not think the damage to the vehicles of itself enables any inference to be drawn as to the angle of approach of the defendant’s vehicle, or as to the precise distance between the defendant’s vehicle and the plaintiff’s driver’s side door at the moment the plaintiff commenced to open it. The plaintiff’s counsel submitted that the locations of the damage to the vehicles was evidence of negligence by the defendant. I reject that submission. I record the fact that neither party called the type of expert who might have been able to draw conclusions from the locations of the damage to the vehicles. I would not draw any inference in the defendant’s favour from the locations of the damage to the vehicles other than what is set out above.

48. As far as the conversations and events after the accident are concerned, neither party suggested that, on her case, the other party had made an admission against interest. Therefore, the conversations and events are relevant only to the issue of credit. As I have said, I accept the defendant’s version of events. I accept that immediately after the accident, the defendant spoke to the plaintiff and then moved her vehicle into the carparking space immediately to the right of the plaintiff’s vehicle. As to the conversations later in the day, the defendant’s version is consistent with the police report prepared as a result of the defendant reporting the accident. The police report records the fact that the defendant reported the accident at 1.35 pm on 1 October 2002 and, at that time, she did not provide the registration number of the plaintiff’s vehicle. It also records the fact that the defendant contacted the police at 2.40 pm and advised the police that she had Mr Henley’s mobile telephone number. It records the police contacting Mr Henley and advising him that his wife should report the accident.

49. As far as the significance (if any) of the plaintiff’s method of alighting from the vehicle is concerned, the plaintiff’s submission was as follows. The plaintiff’s injury to her left arm and shoulder occurred because she had her left hand on the driver’s side door handle at the point of impact. I accept that proposition, as indeed does the defendant. The plaintiff went on to submit that her method of alighting from her vehicle was such that she would have had one, possibly two, feet on the ground outside the driver’s side of her vehicle before the moment of collision. It followed, so the submission went, that the driver’s side door was open and part of the plaintiff’s body was outside the vehicle before the collision occurred. The plaintiff submitted that it followed from this that the defendant had ample opportunity to see the plaintiff alighting from her vehicle before the collision occurred. I would not draw any inference from the plaintiff’s method of alighting from her vehicle. I say that for two reasons. First, there were descriptions of the plaintiff’s method of alighting from the vehicle by each of the plaintiff, Mr Henley and Ms Johnson. They are not sufficiently precise and exact to enable an inference to be drawn that the plaintiff only put her left hand on the driver’s side door handle after she had one or both feet on the ground outside the driver’s side door. Secondly, I do not think that any useful inference can be drawn as to the time the movement took place. Even if the plaintiff were able to overcome the first point, it does not necessarily follow that it increased the time the defendant had to see the plaintiff.

50. In my opinion, the defendant was negligent. The plaintiff opened her driver’s side door to a distance of approximately 60 cm. That, or perhaps more, would be the normal distance a vehicle door would be opened to enable a person to alight from the vehicle. The defendant must have driven her vehicle to within a distance of approximately 60 cm of the plaintiff’s vehicle. At the time of the collision, the first level of the carpark had just opened. There were many vacant carparking spaces and the defendant said, and I accept, that other drivers were also driving across vacant carparking spaces. At that time of the morning, it was likely that drivers would park their vehicles and immediately alight therefrom. The defendant saw the plaintiff drive into a carparking space and she elected to park in the adjoining carparking space. It is not possible to make a precise finding as to the position of the plaintiff’s vehicle when the defendant first saw the plaintiff’s vehicle. Although I do not think the defendant was travelling particularly quickly, I think she underestimated her speed when she said that she was travelling at 2-3 km/h as she traversed the carpark and was wrong when she said that at the point of collision she was rapidly decelerating from 1-2 km/h. Having seen the plaintiff park her vehicle, the defendant should have anticipated that the plaintiff would attempt to alight from it. She should have entered her carparking space at a greater distance from the plaintiff’s vehicle or, if that was not possible, waited to see if and when the plaintiff would alight from the vehicle. Furthermore, or, in the alternative, although the opening of the plaintiff’s door and the collision would have happened in a very short space of time, I find on the balance of probabilities that, had the defendant been paying proper attention, she would have seen the plaintiff commencing the act of opening the driver’s side door in sufficient time to avoid the collision. Although, as I have said, I do not think the plaintiff’s method of alighting from her vehicle sustains that finding, I think the whole of the evidence sustains it. The plaintiff suggested that the defendant was in a hurry and therefore not paying proper attention. It is unclear as to whether the defendant was in a hurry; however, I find that she was not paying proper attention.

51. In my opinion, the plaintiff was guilty of contributory negligence. I do not accept her evidence that she checked in all directions (at one point, she said that she checked in all her mirrors) before commencing to alight from her vehicle. Had the plaintiff kept a proper lookout, she would have seen the defendant’s vehicle, which was behind her and to the right. A proper lookout is required by a driver opening his or her door in a carpark where there is a vacant carparking space immediately to the right; more so where the driver is aware that the carpark has just opened and there are a number of drivers moving to carparking spaces.

52. I must compare the culpability of the plaintiff and the defendant (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10). Neither was keeping a proper lookout. I have considered that question carefully and I assess the plaintiff’s contributory negligence at 50 per cent.

53. The plaintiff was born in Angola on 1 December 1974. Her family came to Australia in 1984 and settled in Adelaide, South Australia. The plaintiff completed year 11 at high school. She commenced work in the hospitality industry and, in 1995, she moved to Darwin. After some years in Darwin, she moved to Canberra.

54. The plaintiff has always been interested in clothes and accessories to clothes. While in Canberra, she was drawing her own designs and making her own clothes. At the time of the accident, the plaintiff was both working and studying. She was working part-time as a manager in a ladies’ boutique which traded under the name “Soho Dezigns”. She managed the shop and trained the staff. She had held that position for some time. The plaintiff was also undertaking a course of study for an Advanced Diploma of Design (Fashion Design) at the CIT. As I understand the evidence, with a further period of successful study, that would have led to the award of a Bachelor of Design (Fashion Design). The plaintiff commenced her studies in early 2002 and had performed well in the course in the period before the accident. Some of her work appeared in a fashion parade and on television. It was anticipated that she would complete her course of study at the end of 2004.

55. The plaintiff married Mr Nicholas Henley on 10 November 2001. She had known him for a number of years. The plaintiff and her husband had a son, Michael, who was born on 10 March 2008.

56. The plaintiff said that she did not sleep well during the night of 1 October 2002 and that, during the night, her left hand and arm started to swell up and change colour. She noticed a “horrible pain” through her arm when trying to open a door at work the following morning. She could not work that day, and left work and arranged to see her general practitioner. She has not worked since that day.

57. The plaintiff had a course of physiotherapy and saw a neurologist, Dr Gytis Danta. Dr Danta carried out a number of nerve block injections, or stellate ganglion block injections. The injections produced a numb feeling in her neck, arm and shoulder. In addition to these measures, the plaintiff was given medication to take and she has continued to take medication to the present day.

58. The plaintiff said that, in the period shortly after the accident, she was in a lot of pain and that she could not engage in activities such as dressing herself and drawing. Her husband helped her with these tasks. The plaintiff could not continue with her course at the CIT.

59. In 2003, the plaintiff was seen by a psychologist, Ms Antoinette Harmer. She also started a course of hydrotherapy.

60. The plaintiff resigned from her employment with “Soho Dezigns” in March 2003 and she moved to Queensland at about that time. The plaintiff hoped that the warmer weather would alleviate the swelling in her arm. The plaintiff’s husband had secured employment in Queensland.

61. The plaintiff was prescribed “Stilnox”, which she took for about three years. That caused her to engage in some unusual behaviour, which she described in her evidence. She was involved in a motor vehicle accident on 28 April 2006 and she suffered bruising as a result. She does not remember the circumstances surrounding the accident, and she stopped taking Stilnox after it occurred. The plaintiff did not suffer any long term injuries as a result of the accident on 28 April 2006.

62. Since the accident the plaintiff has attended pain management meetings or sessions.

63. The plaintiff described significant changes in her mood and lifestyle since the accident. She said that she can become very aggressive.

64. The plaintiff described the domestic activities that she has been unable to perform. She described the period immediately after the accident and said that she needed assistance with her toilet and washing herself and she was unable to lift or move things. She started to use her right hand for eating. The plaintiff said that she had a person come in to help with household tasks and that her husband performed a number of domestic duties.

65. The plaintiff described the present situation with respect to domestic assistance. She said that she receives assistance from a person employed by the business “Dial an Angel”, who visits the plaintiff’s home once a fortnight and is paid $86 per fortnight; a person employed by the plaintiff, who visits her home once a fortnight and is paid $55 per fortnight; and from her husband, who performs domestic duties for approximately 3-4 hours per day. I find the plaintiff’s evidence as to the amount of domestic assistance provided by her husband difficult to accept. It is inconsistent with her Amended Statement of Particulars filed on 26 May 2008, in which she refers to her husband providing 10 hours’ care and assistance per week. Even if in some way she was intending to restrict her answer to the period after her son was born (and that is by no means clear), her Amended Statement of Particulars was filed some time after her son was born and, in any event, it seems to me to be improbable that after working during the day Mr Henley would provide domestic assistance for 3-4 hours every night.

66. The plaintiff described other problems she has experienced since the accident, including migraines, difficulty sleeping, swelling and twitching in her left arm, and pain and discolouration in that area. She said that she has difficulty holding things and that she had to give up breastfeeding her baby because of the pain. She cannot sew. She is still taking painkillers and anti-depressant medication.

67. The plaintiff said that she had a very active life before the accident which she is no longer able to pursue and she described her involvement in dancing, sports, bike riding and motorcycling. The plaintiff said that she had put on considerable weight since the accident.

68. The plaintiff said that her mood changes had improved in recent years. Nevertheless, she has noticed problems with her memory and concentration. The plaintiff said that her sexual relationship with her husband has been affected adversely by the injuries she suffered in the accident.

69. The plaintiff gave evidence of her employment plans immediately prior to the accident and of her employment plans now. She said that, before the accident, she proposed to complete her course of study and then continue working as a manager at “Soho Dezigns” for three to five years. At the end of that period she hoped to develop her own label and to own her own business. She said that, had she not been successful in conducting her own business, she would have kept working as a manager in the fashion industry. The plaintiff gave evidence of various jobs she believed she could do once she had completed her degree. The plaintiff said that her present wish is to go back to work and perhaps own her own store. However, she does not think that she could undertake her course of study or manage a store at the present time.

70. As I have said, the plaintiff said that her mood changes had improved since the accident. She said that some of the treatment she had received had been of benefit to her, and that Dr Katrina Samios had helped her to “get through things”. She thought her physical condition had improved because she was dealing with her pain “a lot better” and she described one of the drugs she was now taking as being of assistance to her. She said that she was managing lifting her left hand, “a lot better now”.

71. The plaintiff has seen a psychiatrist, Dr Katrina Samios, with whom she has established a good relationship. The plaintiff has not seen Dr Samios in recent times because Dr Samios has been on maternity leave. No medico-legal reports from Dr Samios were tendered in evidence and that fact was explained by the plaintiff on the ground that Dr Samios considered that to do so might imperil her relationship with the plaintiff. An affidavit from Dr Samios, sworn in April 2007, was tendered. In it, Dr Samios states that the plaintiff is well engaged in a therapeutic relationship with her, and that she remains optimistic of the plaintiff’s potential for recovery in the longer term.

72. The evidence of Mr Henley corroborated aspects of the plaintiff’s evidence as to her symptoms and disabilities.

73. The plaintiff tendered over thirty medical and other reports dealing with her condition. Only one medical practitioner gave oral evidence and was cross-examined. The defendant’s counsel said that he did not anticipate much dispute about the plaintiff’s diagnosis, but what it meant would be “a matter for argument”.

74. I propose now to summarise, as concisely as I can, the effect of the medical and other reports tendered by the plaintiff.

(1) The plaintiff’s initial symptoms were pain, discolouration, swelling and coldness in the left arm. At an earlier stage, she was diagnosed with a complex regional pain syndrome involving the left arm. The plaintiff’s treatment consisted of medication, psychotherapy and left stellate ganglion blocks. The plaintiff was prevented from pursuing her employment and her studies. She was paid workers’ compensation. At a fairly early stage, the plaintiff was examined by a psychologist.

(2) The plaintiff’s symptoms meant that she could not exercise and, as a result, she started putting on weight. She had difficulty sleeping at night and she began experiencing bad headaches and migraines.

(3) The plaintiff undertook psychological testing, and the results revealed that, on the depression scale, the plaintiff scored within the high range for pain patients; on the anxiety scale, she scored within the very high range for pain patients; and, on the somatisation scale, she scored within the average range for pain patients.

(4) In late 2003, Dr Marc Walden, a pain medicine physician, prepared a detailed report about the plaintiff’s medical condition. He described the diagnosis of complex regional pain syndrome as one of exclusion, that is, “there is no particular test or diagnostic manoeuvre that confirms the presence of complex regional pain syndrome”. He went on to say the following:

Dr Walden said that the secondary diagnosis for the plaintiff was one of clinical depression and anxiety. Dr Walden expressed the opinion that the plaintiff was unable to use her left hand for prolonged periods “making writing and use of a computer difficult. Both of these tasks she is required to do as a student.”

(5) Clinical and psychometric testing by a clinical psychologist, Dr Lynda Melville, in late 2003, indicated the importance of psychological factors in the plaintiff’s physical presentation. Dr Melville said:

(6) Clinical and psychometric testing was also carried out by a group called “PainLogic”, which conducts an interdisciplinary pain management programme. The plaintiff took part in a three-week programme which included measures designed to address anxiety, anger and depression and pain experience. The reports from the group indicate that the plaintiff gained some benefits from participating in the programme.

(7) In August 2005, the plaintiff was seen by a Ms Jo Chandler. Ms Chandler, who prepared a report at the request of the relevant workers’ compensation insurer, assessed the plaintiff’s ability to perform activities associated with daily living. In the report, Ms Chandler outlines the domestic tasks the plaintiff is and is not able to perform. In the section of the report dealing with outcome and recommendations, Ms Chandler writes:

(8) In September 2005, a psychiatrist, Dr Georgiana Antoce, diagnosed the plaintiff as suffering from a major depressive disorder and she said that the plaintiff had developed a “comorbid Pain Disorder associated with both psychological and physical factors (DSM IV TR)”. Dr Antoce formed the opinion that the psychological factors were playing a significant role in the plaintiff’s pain syndrome and were contributing to a perpetuation of symptoms.

(9) As I have said, the plaintiff was involved in a minor motor vehicle accident on 28 April 2006 when her vehicle collided with a power pole (see [61] above).

(10) The plaintiff was seen by Dr Geoffrey Champion on 12 September 2006 and again on 10 June 2008. Dr Champion is a consultant physician in Rheumatology, Musculoskeletal Medicine and Pain Medicine at St Vincent’s Clinic in Darlinghurst, New South Wales, and he is highly qualified. After examining the plaintiff on 12 September 2006, Dr Champion wrote a report dated 14 November 2006. In that report, Dr Champion said:

It will be seen that Dr Champion referred to a spinal cord stimulator in the above report. He was asked to provide estimates of the costs associated with such a medical device and he did so in a written report dated 3 April 2007. He said that costs of a spinal cord stimulator varied. A summary of his estimates is as follows:

1. Costs of a trial for the spinal cord stimulator are in the order of $5,000-$8,000.

2. Costs of a spinal cord stimulator when implemented are in the order of $15,000-$20,000, including the pain management programme which is commonly combined with it. Annual costs associated with the spinal cord stimulator are in the order of $3,000-$4,000.

3. The costs of referral to a pain management unit depend very much on what is done. The costs associated with a comprehensive pain management course are in the order of $4,000-$5,000 in the first year, and much lower costs subsequently of the order of $500 per annum.

Dr Champion prepared a written report dated 11 June 2008 after he examined the plaintiff on 10 June 2008. He referred to his previous diagnosis. He described the plaintiff’s progress since he last saw her and the results of his examination of her. Dr Champion said that he considered that the plaintiff was a genuine person who was severely afflicted by a chronic pain disorder. He maintained his previous diagnosis and his opinion that the plaintiff’s condition resulted from the motor vehicle accident. The plaintiff was unfit for work and likely to remain so in the foreseeable future. Dr Champion stated that she has a number of symptoms in addition to an inability to use her left arm and he again referred to the option of a spinal cord stimulator. He recommended that she use her left arm as much as possible. Otherwise, there had been “no major development in pharmacotherapy or other management of this disorder”.

Dr Champion gave evidence by telephone. He described the features of a spinal cord stimulator. A trial is conducted as to the suitability of the patient for the device and it is not necessarily suitable for all patients. The patient’s psychological status must be taken into account. It is not always successful. Dr Champion supports the suggestion that the plaintiff should be considered for the trial by the appropriate pain service. Dr Champion said that, if the spinal cord stimulator proved successful in the plaintiff’s case, he considered that she could expect an improvement rate of between 15 per cent and up to 60 per cent or even 70 per cent. Dr Champion’s opinion is that the plaintiff’s essential disorder is chronic pain syndrome which is in turn augmented by her particular coping strategies and emotional responses. Dr Champion did not evaluate whether the plaintiff’s personality played a part in her ability to adapt to her injuries.

(11) Dr Antoce examined the plaintiff again on 19 May 2008 and she prepared a written report dated 27 May 2008. Dr Antoce’s diagnosis is of symptoms of a chronic major depressive disorder and associated pain disorder with recent peri-natal exacerbation of affective symptoms, and complications of a strained marital relationship. Her written report goes on to say:

(12) Ms Rebecca Peng, general medical practitioner, expressed the opinion that the plaintiff will require her pain medications indefinitely and that the likelihood of her ceasing the use of pain medications in the future is “very low”.

75. Ms Johnson gave evidence of some observations she made of the plaintiff after the accident.

76. Mr Davis prepared what was called an economic loss report. It contained an estimate of the plaintiff’s past and future economic loss, including past and future loss of superannuation, based on certain assumptions. The defendant objected to the tender of the report on the ground it offended the opinion rule in s 76 of the Evidence Act 1995 (Cth) and was not within the exception in s 79. It was submitted by the defendant that the opinions expressed in the report were not wholly or substantially based on specialised knowledge held by Mr Davis. I rejected that submission and the report was received into evidence.

77. I considered that Mr Davis had the necessary specialised knowledge to express the opinions set out in the report. Although the man or woman in the street might be capable of making the calculations Mr Davis makes, the necessary tools in terms of mathematical formulae, etc would be further from his or her grasp than from that of Mr Davis: cf Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70; (2007) 159 FCR 397 at 411 [55]. Furthermore, s 80(b) of the Evidence Act 1995 (Cth), which abolishes the common law rule against the admissibility of opinions about matters of common knowledge, permits Mr Davis’ opinion to be based in part, albeit not a substantial part (see s 79(1)), on matters of common knowledge: Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402; 187 ALR 233 at 416; 253 [82] per Gaudron J; see also Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 205 FLR 217 at 290 [294] per Barr and Hall JJ.

78. The defendant relied on a passage in Heydon JD, Cross on Evidence (7th Australian ed, LexisNexis Butterworths, 2004) at 930 [29050]:

79. However, in the first part of the sentence preceding this passage, in which the learned author cites Parente v Bell [1967] HCA 19; (1967) 116 CLR 528 and Tzouvelis v Victorian Railways Commissioners [1968] VR 112, it is stated: “[a]n actuary may be called to provide calculations based on life expectancy tables”. There is no reason to think that there should be a distinction between an actuary and an accountant in applying the relevant principles.

81. The substance of the plaintiff’s evidence as to the pain and disabilities she has suffered since the accident is supported by the evidence of her husband, her friend, Ms Johnson, and the statements and opinions in the medical reports, which I have summarised above. I accept the plaintiff’s evidence as to those matters.

82. I accept the opinion of Dr Champion that the plaintiff suffers from a complex regional pain syndrome with impressive peripheral and central neuropathic mechanisms. The best explanation is a traction injury to the brachial plexus. I accept the opinion of Dr Champion that the accident is the cause of the condition. I accept the opinion of Dr Champion that the natural history is one of continuing chronic pain, sensitivity in skin and deep tissues to innocuous stimuli, pain easily provoked by movement of the joints of the upper limb (and cervical spine) leading to long term chronic painful disuse of the limb. I also accept the opinion of Dr Champion that there is no pharmacotherapy which will transform the plaintiff’s condition, and cognitive and behavioural therapy can only improve her situation slightly.

83. I also accept the various opinions expressed as to the plaintiff’s mental state. They were all to similar effect. Dr Antoce’s diagnosis was of a chronic major depressive disorder and associated pain disorder with recent peri-natal exacerbation of affective symptoms, and complications of a strained marital relationship. I accept that diagnosis.

84. I also accept that there has been some improvement in the plaintiff’s condition since the accident. I accept that there is likely to be some further improvement in the plaintiff’s condition although it will fall well short of complete recovery. I base my finding of the likelihood of further improvement on the opinion of Dr Samios and on the fact that I think that part of the plaintiff’s present condition is caused by this proceeding and the anger she feels towards the defendant. Furthermore, I rely on the fact that, over time, it is to be expected that the plaintiff will learn to adapt to her disabilities. However, the plaintiff’s improvement is likely to fall well short of complete recovery, as the respective opinions make clear.

85. The plaintiff is entitled to a substantial award by way of pain and suffering. I award the sum of $40,000 for past pain and suffering and the sum of $60,000 for future pain and suffering. The plaintiff is entitled to interest on past pain and suffering. I will award interest on the basis of 5 per cent per annum over a period of 5.8 years, which results in a figure of $11,600.

86. As far as past medical expenses and other out-of-pocket expenses are concerned, the amount of these expenses was agreed at $164,808.71. There is no evidence to suggest that the plaintiff is not entitled to these expenses and I will award this sum.

87. As far as future medical expenses and other out-of-pocket expenses are concerned, the plaintiff claimed the sum of $40,616 plus the costs associated with a spinal cord stimulator. The sum of $40,616 comprises medication expenses of $18,222, costs of visits to the plaintiff’s general practitioner of $3,919 and costs of visits to Dr Samios of $18,475.

88. The defendant contended that the allowance for future medical expenses and out-of-pocket expenses should be $26,257, consisting of medication expenses of $5,042, costs of visits to the plaintiff’s general practitioner of $2,790 and costs of visits to Dr Samios of $18,245. The defendant submitted that no allowance should be made for the costs associated with a spinal cord stimulator because the plaintiff is a doubtful candidate for such a procedure.

89. The main difference between the parties relates to the costs of Neuronton. I think the plaintiff’s submission that this drug is not covered by the safety net is correct: Vaughan v Smith [2007] ACTSC 45 at [36]. I allow the cost of future medication at the figure claimed by the plaintiff, viz, $18,222.

90. I allow the cost of future visits to the general practitioner and to Dr Samios at the figures claimed by the plaintiff of $3,919 and $18,475, respectively.

91. As far as costs associated with a spinal cord stimulator are concerned, I have already referred to the evidence of Dr Champion ([74(10)]). There is no guarantee that the plaintiff is a suitable candidate for such a procedure. As the defendant pointed out, in one of the earlier medical reports a consultant occupational physician, Dr Nicholas Burke, said that evidence supporting the option of spinal cord stimulation was “not strong”. On the other hand, the plaintiff is a relatively young woman and, if successful, a spinal cord stimulator may provide her with considerable pain relief. She said in evidence that she was contemplating the use of such a device.

92. I do not think I can take other than a broadaxe approach to the question. An allowance should be made (see Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638), and I propose to allow the sum of $25,000 for the costs associated with a spinal cord stimulator.

93. I allow the sum of $65,616 for future medical expenses and out-of-pocket expenses.

94. The total allowance for past and future medical expenses and out-of-pocket expenses is $230,424.

95. The plaintiff received payments of workers’ compensation from the workers’ compensation insurer. The parties are agreed that the plaintiff is entitled to an award of $12,312 in accordance with the principle stated by the High Court in Fox v Wood [1981] HCA 41; (1981) 148 CLR 438.

96. It is well established that, if the plaintiff’s injuries give rise to a need on the part of the plaintiff for domestic assistance and care, then damages may be recovered, not only for paid services, but also for services rendered gratuitously by family and friends: Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. As a general rule, the plaintiff’s damages in this area are to be assessed by reference to the market cost of providing the services: Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327.

97. The plaintiff has received domestic assistance and care from both paid workers and from her husband. The cost of the domestic assistance and care she has received from paid workers in the past has been met by the workers’ compensation insurer and is not the subject of a claim under this head. The plaintiff’s claim for past domestic assistance and care is restricted to the services provided gratuitously by her husband. The plaintiff’s claim for future care includes both paid domestic assistance and care and services to be provided gratuitously by her husband.

98. I start with her claim for past domestic assistance and care. I have no doubt that, following the accident, the plaintiff required domestic assistance and care and that, in addition to paid help, domestic assistance and care was provided by her husband. The activities she needed assistance with included going to the toilet, washing herself, combing her hair, certain cleaning tasks, washing and ironing, certain cooking tasks and shopping. The evidence of the assistance actually provided by the plaintiff’s husband was given by the plaintiff, Mr Henley and Ms Johnson. The need for such domestic assistance and care is clearly established by the medical evidence. The difficulty is in quantifying the need for domestic assistance and care, and that is where the dispute lies. It would be unusual for a person to make observations of the precise hours spent by a family member providing gratuitous services. Furthermore, in this case the position is complicated by the fact that, between the date of the accident and the date of the trial, the plaintiff’s condition improved. The plaintiff herself admitted that she has improved and is now able to lift up to 3 kg with her left arm. The plaintiff claims that she had a need for domestic assistance and care involving 10 hours per week between 1 October 2002 and 10 March 2008, and 20 hours per week from the latter date and trial. The plaintiff’s son was born on 10 March 2008. I have already referred to the unsatisfactory nature of the evidence of the plaintiff and Mr Henley as to the quantum of domestic assistance and care provided by the latter. Nevertheless, it seems to me that the evidence supports an allowance of 10 hours per week from the date of the accident to the date of trial. The defendant’s suggestion of 10 hours per week for the first year after the accident and 3 hours per week thereafter until the date of trial does not adequately reflect the plaintiff’s need for domestic assistance and care. The defendant submitted that no allowance should be made for the plaintiff’s inability to care for her newborn child and she referred to CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1. I accept the defendant’s submission and I will proceed on that basis.

99. I will allow 10 hours per week from the date of the accident to the date of trial at the rate the plaintiff put forward in her Amended Statement of Particulars filed on 26 May 2008, that is, $18 per hour. The resulting figure is $54,288. Interest at 5 per cent on this sum from the date of the accident to the date of trial is $15,743.52.

100. As to future domestic assistance and care, the plaintiff claims for paid help and for domestic assistance and care to be provided gratuitously by her husband. I am not satisfied on the balance of probabilities that the plaintiff will require paid help in the future. In reaching that conclusion, I have had regard to all the evidence, but in particular I have had regard to the evidence of Ms Chandler (see [74(7)] above), and the sparseness of the evidence as to the need for paid help. Furthermore, I note that paid help was not part of the plaintiff’s claim for future domestic assistance and care in her Amended Statement of Particulars filed on 26 May 2008.

101. The plaintiff’s claim for future domestic assistance and care to be provided gratuitously by her husband was calculated as follows: 10 hours per week at $22 per hour for 17 years (when the plaintiff will be 50 years of age) (multiplier (compound interest 3 per cent per annum) 697) $220 x 697 = $153,340 – 15 per cent for contingencies = $130,000 approximately. The defendant’s case is that the amount should be calculated as follows: 3 hours per week at $18 per hour for 10 years (multiplier (compound interest 3 per cent per annum) 451.8) $54 x 451.8 = $24,397.

102. On the evidence, it is difficult to be precise. It seems to me not unreasonable to allow a period of 17 years. However, I think it is appropriate to use a figure of 7 hours per week because, although it may be up to 10 hours per week at the beginning of the period, I think it will be a good deal less towards the end of the period. An allowance of 7 hours per week is as accurate as one can be. At the rate of $18 per hour (the rate identified in the Amended Statement of Particulars filed on 26 May 2008) the calculation is as follows: 7 hours per week at $18 per hour for 17 years (multiplier (compound interest 3 per cent per annum) 697) $126 x 697 = $87,822. Unlike future economic loss, I would not reduce this sum for contingencies because I do not think there are any of sufficient significance.

103. I award the sum of $54,288 for past domestic assistance and care, the sum of $15,743.52 for interest on past domestic assistance and care, and the sum of $87,822 for future domestic assistance and care. The total sum is $157,853.

104. The plaintiff, who was working and studying at the time of the accident, has not worked since the accident. The defendant did not suggest that, as far as past economic loss is concerned, the plaintiff had a residual earning capacity.

105. I find that the plaintiff had a real and genuine enthusiasm for the fashion industry. At the same time, I have no evidence from third parties as to her capabilities. No one from her employer or the CIT gave evidence. I find on the balance of probabilities that, but for the accident, the plaintiff would have completed her course. I find, in accordance with her evidence, that thereafter she would have worked at “Soho Dezigns” for three to five years. In broad terms, that would take her from the end of her course to the date of trial. As I understand it, there is no dispute between the parties that, for the period during which the plaintiff was studying and working part-time, the appropriate figure is about $365 net per week. The plaintiff’s case is that, for the period from 1 January 2005 until the date of trial, her weekly net salary would have been considerably more than that, and Mr Davis performed calculations by reference to salary ranges for textile designers, patternmakers and related occupations. The difficulty with that analysis is that the plaintiff said that she intended to return to “Soho Dezigns” and there is no evidence of any positions being available at that business, other than the position she held at the time of the accident. In my opinion, past economic loss after 1 January 2005 should be calculated on the basis of $533 net per week, which is the figure for a 38-hour week extrapolated from the figure of $365 net per week for a 26-hour week. The defendant submitted that there should be no allowance for past economic loss after 10 March 2008, being the date of the birth of the plaintiff’s son. I will make some allowance for the period between 10 March 2008 and the date of trial, on the basis that the plaintiff may have returned to part-time work or taken a short period off and then returned to full-time work. My calculation of past economic loss is as follows:

	$
1 October 2002 to 31 December 2004	42,705
1 January 2005 to 10 March 2008	88,478
10 March 2008 to 17 July 2008	5,330
Total figure	136,513

106. The plaintiff received weekly payments of compensation from the workers’ compensation insurer, totalling $77,012.45. The plaintiff is entitled to interest on the difference between that figure and the figure awarded for past economic loss of $136,513. The interest I award, using a figure of 5 per cent for a period of 5.8 years, is $17,255.

107. The plaintiff also claimed the loss of past superannuation benefits and there seemed to be no dispute that this was calculated (somewhat imprecisely) by taking a figure of 11 per cent of the net loss. That results in a figure of $15,016.

108. The multiplier for a 33½ year old woman at compound interest of 3 per cent to age 65 years is 1049. If one takes the figure of $533 net per week, assumes no residual earning capacity and allows for contingencies by deducting 15 per cent, the resulting figure is $475,249. Neither party contended for that approach. The plaintiff contended for a much higher net figure per week, submitted that she had no residual earning capacity and accepted a reduction for contingencies of 15 per cent. The defendant contended for a lower net figure per week and submitted that the plaintiff had a substantial residual earning capacity. She also sought a 20 per cent reduction for contingencies.

109. The plaintiff said that, after the period of three to five years with “Soho Dezigns”, she had hoped to open her own store and, after a time, to sell her own designs. She wanted to become a fashion designer and hoped to become the “next Christian Dior”. The plaintiff also gave evidence that, if her business had not succeeded, she would have stayed in the fashion industry as a manager. Mr Henley also gave evidence that the couple’s long term plans involved the acquisition of their own business.

110. The plaintiff also gave evidence that, after completing her course of study, she would have been qualified to work as a designer, machinist or patternmaker. She gave that evidence by reference to job advertisements she had obtained. The salaries set out in those advertisements ranged from $55,000 plus superannuation for a patternmaker to $100,000-$150,000 for a senior designer.

111. The plaintiff put before the Court evidence from a director of Permanser (Mr Michael Harris), an organisation which provides a recruitment service to the textile, clothing and footwear industries. Mr Harris expressed the following opinions:

112. Mr Davis performed his calculations on the assumptions of a gross annual salary of $60,000 between 1 September 2007 and 31 August 2009, $70,000 between 1 September 2009 and 31 August 2011, and $80,000 between 1 September 2011 and 1 December 2039. He did that by reference to indicative figures for a patternmaker and designer with nil to five years’ experience, and then with in excess of five years’ experience.

113. Mr Davis was unable to prepare figures on the basis that the plaintiff and her husband conducted their own business because he did not have the material to do that. It seems to me that that is not fatal to the plaintiff’s claim for future economic loss because I do not think the plaintiff would have conducted a business, either at all, or for very long, if she could not earn as much as an employee in one of the positions she was qualified to fill.

114. The defendant submitted that I should look at average weekly earnings for those engaged in the retail trade. She tendered two documents entitled “Average Weekly Earnings of Total Employees, Australia” and a document setting out gross and net weekly wages at various levels and at various times. The effect of the defendant’s submissions is that I should take as a starting point a gross figure of $787 per week, resulting in a net figure of $640 per week.

115. Although I find that the plaintiff would have completed her course of study, I think I should take a fairly conservative approach to her earning capacity. As I have already said, no significant evidence of the plaintiff’s particular capabilities was put before the Court. Nor was any evidence as to the nature of the fashion industry and the employment opportunities within that industry put before the Court. I propose to adopt a figure of approximately $50,000 per annum gross. That results in a weekly figure of $950 gross, and $750 net.

116. I note the opinion of Dr Champion ([74(10)]) and Dr Antoce ([74(11)]) that the plaintiff is unlikely to return to work in the foreseeable future. However, she has improved and there will be some improvement in the future. I think she will be capable of some employment, particularly as she learns to adapt to her disabilities. The defendant suggested that the plaintiff had a residual earning capacity of almost 40 per cent of her full earning capacity. I think that is probably too optimistic, and, on all the evidence, I would assess her residual earning capacity at 30 per cent of her pre-accident earning capacity.

117. I see no reason why contingencies should not be reflected in the award by a deduction of the “generally appropriate” figure of 15 per cent: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 497-498 per Dawson, Toohey, Gaudron and Gummow JJ.

118. I award the sum of $468,116 for future economic loss, calculated as follows: a starting figure of $750 net per week, reduced by 30 per cent, with the resulting figure multiplied by 1049. The resulting figure from that calculation is then reduced by 15 per cent for contingencies.

119. I also award loss of future superannuation of $51,492.76, being 11 per cent of the award for future economic loss.

Past	40,000.00
Future	60,000.00
Interest on past pain and suffering	11,600.00

Past	164,808.71
Future	65,616.00

Past	54,288.00
Future	87,822.00
Interest on past domestic assistance and care	15,743.52

Past	136,513.00
Past Superannuation	15,016.00
Future	468,116.00
Future Superannuation	51,492.76
Interest on past economic loss	17,255.00

121. The defendant was negligent and the plaintiff was guilty of contributory negligence. The damages awarded to the plaintiff against the defendant must be reduced by 50 per cent on account of the plaintiff’s contributory negligence. I will hear the parties on the appropriate orders and on the question of costs.

I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of His Honour Justice Besanko.

Supreme Court of the ACT

Henley v Tu [2009] ACTSC 37 (3 April 2009)