Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Nominal Defendant v Ismail [2014] NSWCA 432
• Hearing dates: 13 November 2014
• Decision date: 17 December 2014
• Before: Basten JA at [1]; Barrett JA at [76]; Emmett JA at [77]

Decision

(1) Allow the appeal and set aside orders (1) and (2) made in the District Court on 31 March 2014.

(2) Order that there be a retrial of the questions of liability and, if liability is established, contributory negligence.

(3) Dismiss the appellant's motion to allow further evidence on appeal;

(4) Dismiss the cross-appeal.

(5) Order that the respondent and cross-appellant (Ms Ismail) pay the costs of the appellant and cross-respondent (Nominal Defendant) in this Court, including the costs of the motion.

(6) Grant the respondent (Ms Ismail) a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL AND NEW TRIAL - order for new trial - findings based on inadmissible evidence - whether unchallenged findings sufficient to determine liability without need for a retrial - inconsistencies between witnesses' account of accident - whether inconsistencies can be resolved by appellate court - opportunity at trial to assess reliability of accounts on the basis of witnesses' oral presentation; DAMAGES - assessment - whether allowance for lost earning capacity inadequate - whether allowance for future domestic assistance inadequate - whether trial judge erred in reduction for vicissitudes; EVIDENCE - admissibility - expert opinion evidence - evidence of traffic engineer that inconsistencies between two witnesses were different perceptions of the same event - whether opinion based wholly or substantially on specialised knowledge of the expert - extent of expert's specialised knowledge - whether expert had any specialised knowledge in psychology - Evidence Act 1995 (NSW), s 79; TORTS - negligence - motor vehicle accident - unidentified vehicle(s) involved in accident - inconsistent accounts as to nature and actions of the unidentified vehicle - trial judge resolved inconsistency by finding there were two vehicles involved - whether evidence sufficient to determine what caused the accident - whether evidence sufficient to find there were two vehicles - whether evidence sufficient to determine the drivers of either of the unidentified vehicles were negligent
• Legislation Cited: Civil Liability Act 2002 (NSW), s 15B; Evidence Act 1995 (NSW), ss 76, 79; Motor Accidents Compensation Act 1999 (NSW), ss 34, 126, 141B
• Cases Cited: Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
• Texts Cited: Daniel J Simons and Christopher F Chabris, "Gorillas in our midst: sustained inattentional blindness for dynamic events", Perception, 1999, vol 28 at pp 1059-1074
• Category: Principal judgment
• Parties: The Nominal Defendant (Appellant/Cross-Respondent); Najibah Ismail (Respondent/Cross-Appellant)
• Representation: Counsel: Mr KP Rewell SC/Mr I Cullen (Appellant/Cross-Respondent); Mr MJ Cranitch SC/Mr R Taylor (Respondent/Cross-Appellant); Solicitors: TL Lawyers (Appellant/Cross-Respondent); Carroll & O'Dea (Respondent/Cross-Appellant)
• File Number(s): 2014/122017

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2014-03-31 00:00:00
• Before: Norton DCJ
• File Number(s): 2012/11486

HEADNOTE

[This headnote is not to be read as part of the judgment]

In August 2009, Ms Ismail was driving in the left hand lane of the M4 Western Motorway when she lost control of her vehicle and collided with a car in the far (right hand) lane. She alleged her loss of control was caused when an unidentified sedan tailgated her, overtook her vehicle, came in front of her and then made an abrupt stop. The driver of a truck behind the plaintiff was adamant there was no such vehicle; rather, the accident was caused by an unidentified semi-trailer attempting to merge into the left hand lane from the shoulder of the road.

The trial judge found that there was both a sedan and a semi-trailer which contributed to the accident. Why neither account included both was held to be a result of Ms Ismail and the witness each focusing on one vehicle to such an extent that they failed to perceive the other - an explanation the trial judge adopted from a report by a traffic engineer tendered by the respondent and admitted as an opinion based on specialised knowledge: Evidence Act 1995 (NSW), s 79. The trial judge found for the respondent, awarding damages in the sum of a little under $700,000 after a reduction for contributory negligence.

The appellant challenged the admissibility of the traffic engineer's opinion and the adequacy of the trial judge's findings in reconciling the inconsistent accounts of the accident. The respondent filed a cross-appeal in respect to the assessment of damages.

The Court (Basten JA, Barrett and Emmett JJA agreeing) held, allowing the appeal and dismissing the cross-appeal:

1. The report was inadmissible as expert evidence as the traffic engineer did not profess any specialised knowledge in identifying how events are perceived and recalled by different persons. The observation, furthermore, assumed both accounts were truthful and reliable. It was logically flawed to reason that because events may be perceived differently if you are focusing on one thing it necessarily followed that this occurred in the present case - especially considering the witness was adamant there was no sedan: [21]-[23], [29]-[30]

2. The finding on liability must be set aside as the approach taken by the trial judge to reconcile the accounts depended on the admissibility of the expert evidence. The question of liability can only be determined by resolving the inconsistencies between the accounts and that exercise should be undertaken at a trial by a judge who has the opportunity to assess their reliability on oral presentation: [31], [45]

3. With respect to the cross-appeal, calculations and assessments are very much a matter of impression for a trial judge and the respondent did not demonstrate any error of fact, principle or law that would justify interfering with the assessment of damages: [60], [71]

Judgment

1 BASTEN JA: On the evening of 24 August 2009, just before 6pm, Najibah Ismail was driving west along the M4 Western Motorway and had reached a section of the roadway just short of the Archbold Road overpass. The motorway had three lanes heading west, with a shoulder of similar width to a single lane. Ms Ismail was driving in the left hand lane (next to the shoulder) when she lost control of her vehicle, veered across two lanes and collided with a car travelling at a little under 110 kph in the third (outside) lane, next to the median strip. She suffered significant injuries.

2 According to statement of claim filed in the District Court on 12 January 2012, Ms Ismail (the plaintiff) alleged that her loss of control was caused by an unidentified "mustard colour Ford sedan" which "began to tailgate" her vehicle, subsequently overtook it travelling at speed in lane 2 and "suddenly and without warning cut in front of" her vehicle in, braked and came to "a complete stop" in front of her vehicle. The driver of the Ford sedan was not identified. She sued the Nominal Defendant as liable for the negligence of the unidentified vehicle, pursuant to s 34 of the Motor Accidents Compensation Act 1999 (NSW).

3 At trial, there were two accounts of the accident. The first, given by the plaintiff, was largely consistent with the allegations in the statement of claim. A second account, given by the driver of a truck travelling behind the plaintiff, said, in summary, that very shortly before the plaintiff lost control of her vehicle, a semi-trailer had pulled out into lane 1 from the shoulder, requiring vehicles to slow significantly or merge into lane 2. The witness, Mr Gibson, was adamant that no vehicle had pulled in front of the plaintiff in the way described by her. His account implied negligence on the part of the semi-trailer driver, who was also unidentified.

4 The Nominal Defendant's position at trial (and on appeal) was that the evidence did not allow the judge to be satisfied on the balance of probabilities as to what caused the plaintiff to lose control of her vehicle. Further, if there were sufficient evidence to find that another vehicle was involved, the evidence nevertheless was insufficient to find which vehicle, and therefore was insufficient to find 5 that the driver of that vehicle had been negligent in a manner which caused the plaintiff's loss of control. Finally, if there were to be a finding of liability, the Nominal Defendant contended that there should be a high degree of contributory negligence attributed to the plaintiff.

5 The trial took place in the District Court between 10 and 13 March 2014. Delivering judgment on 31 March 2014, Judge Norton SC found for the plaintiff, awarding damages in the sum of a little under $700,000, the damages being reduced by 15% for contributory negligence.

6 The Nominal Defendant appealed, raising four issues.

7 First, it alleged that there had been a failure on the part of the plaintiff to make "due inquiry and search" to establish the identity of the other motor vehicle, pursuant to s 34(1AA) of the Motor Accidents Compensation Act. As identified in the notice of appeal, the aspect upon which the plaintiff was said to have failed was in attempting to locate and identify within a reasonable time after the accident the white semi-trailer observed by Mr Gibson. It was in fact the solicitors for the Nominal Defendant who located Mr Gibson and obtained a statement from him in early December 2009. The statement was not provided to the solicitors for the plaintiff. Apart from the fact that the plaintiff's attempts to obtain a statement from Mr Gibson had been unsuccessful, it was difficult to know precisely what should have been done by the plaintiff (who professed ignorance of the presence of the semi-trailer), or when it should have been done. The trial judge rejected the defence raised by the Nominal Defendant. There were no submissions on the appeal suggesting that the trial judge was wrong in this respect. The ground should be rejected.

8 Secondly, the appellant objected at the trial to the tender of a report by a traffic engineer, Mr Grant Johnston. After hearing quite lengthy evidence on a voir dire as to Mr Johnston's qualifications, the judge overruled the objection and admitted the report. For reasons to be explained below, the report was inadmissible and the critical passages in Mr Johnston's evidence should have been rejected. As the trial judge adopted a reconciliation of the conflicting accounts as to the cause of the accident largely in conformity with the approach suggested by Mr Johnston, rejection of his evidence will require that the finding of liability be revisited.

9 Thirdly, the appellant challenged the conclusions reached by the trial judge in seeking to reconcile the plaintiff's evidence with that of Mr Gibson. Although it is no doubt true that the plaintiff would be entitled to succeed against the Nominal Defendant whether there was only one unidentified vehicle involved, or there were two, the inconsistencies in the evidence needed to be resolved in order to address questions of causation and hence to apportion negligence. The findings of the trial judge did not sufficiently resolve these issues, providing a further basis to set aside the finding on liability.

10 Fourthly, the appellant challenged the apportionment of negligence which resulted in a finding of 15% contributory negligence on the part of the plaintiff. That finding, it was submitted, was inadequate. The finding of the degree of contributory negligence must fall as a consequence of the incomplete findings with respect to liability.

11 On the basis that the appellant is entitled to success with respect to the finding of liability, but not on a basis which necessarily leads to a conclusion that it is not liable, there is a consequential issue as to the appropriate relief. The question of liability must be reassessed and should, if reasonably practicable, be reassessed by this Court, so as to avoid the inconvenience, expense and delay resulting from a retrial. However, in the present circumstances, that alternative is not reasonably available and there must be a retrial.

12 The plaintiff filed a cross-appeal with respect to the assessment of damages. Putting to one side the reduction on account of contributory negligence, which will fall to be determined at any retrial, it is desirable to determine that cross-appeal. For the reasons to be indicated, it should be dismissed. Accordingly the matter should be remitted for retrial limited to determination of liability (including contributory negligence). If the plaintiff succeeds on liability, a judgment will be given on the basis of an award, before reduction for contributory negligence, of $818,440.

Admissibility of expert report

(a) the evidence

13 In an acknowledgment at the front of his report, Mr Johnston described himself as a "civilian forensic consulting engineer". His report was described as "Engineering Investigation Into a Motor Vehicle Incident ...".

14 Section 5 of the report was headed "The Road and Physical Environment". That section set out an uncontroversial description of the roadway in the vicinity of the accident, together with a map and two photos which provide some assistance in understanding the physical location.

15 The critical parts of the report, however, were sections 8 "Incident Analysis" and 9 "Conclusions". After noting the disparate descriptions given by the plaintiff and Mr Gibson, Mr Johnston stated at par 8.3:

"At first glance one might assume that Ms Ismail and Mr Gibson were observing different events but when one considers the overall duration of this incident and where there [sic] specific focus of attention is directed one realises that they have actually each seen different components of the same sequence of events just at different elements of time and with different focus on specific elements."

16 Whether or not one did "realise" this, the explanation depended on understanding and applying "the concept of inattentional blindness": par 8.4. That concept was described as "the failure to perceive something that is directly visible within one's direction perceptual field as a result of the individual focusing their attention on some other item."

17 Mr Johnston has a bachelor of civil engineering degree (BE (Civil)) and a master's degree in engineering science (M Eng Sc), which he described as a degree in "traffic and pavements engineering", both from the University of New South Wales. He has also completed a course in "biomechanics of impact injury". He clearly has significant fields of expertise, but not, from these qualifications, in psychology.

18 In the course of the trial, senior counsel for the plaintiff sought to qualify him as having expertise in psychology. Mr Johnston gave evidence that his "general studies component" in his BE (Civil) was "human and animal behaviour" studied "through the School of Psychology." Explaining the link between psychology and traffic engineering he stated (Tcpt, 10/03/14, p 81(30)):

"[A]s a road safety practitioner which I am, we want to accommodate or design for so we can make the road system forgiving for the types of errors, misperceptions, variabilities that the human brings to the road system. So that's sort of the main reason why psychology or human factors is a fundamental element of traffic engineering practice."

19 Mr Johnston explained that some 20 years ago he had seen a 'gorilla video', to which he referred in his report, which was said to illustrate that participants in experiments who are shown films or videos and asked to focus on particular events or movements, will miss a person in a gorilla suit moving across the scene. He also gave evidence of involvement with experiments as part of road safety research, testing the capabilities of a driver to negotiate particular driving tasks when speaking on a mobile phone, under the influence of marijuana or when fatigued. He also referred to a paper by two psychologists, Daniel J Simons and Christopher F Chabris, "Gorillas in our midst: sustained inattentional blindness for dynamic events" published in Perception, 1999, vol 28 at pp 1059-1074. Although the paper was not tendered at the trial, the appellant sought to put it in evidence in this Court, to indicate the nature of the document relied upon by Mr Johnston. It will be necessary to return to that application shortly.

20 Mr Johnston was also taken to certain case studies he had presented at a "Driver Distraction Conference" in 2005: Tcpt, p 101(35). He described the case studies in the following terms:

"Basically they were driver perception of different situations where things have changed, where their attention is focused on other factors, where there's been a diversion. So we talk about 'change blindness'. That's where people don't realise that there's a diversion in place and they drive their normal route inattentive to the fact that there's signs and warnings directing them somewhere else. It talks about inattention blindness. Deals specifically, and this was when the mobile phone issue was emerging, talks about the mobile phone as a distraction and creating inattention blindness."

(b) admissibility

21 There are three difficulties with this material. The first is legal: the evidence was sought to be tendered under s 79 of the Evidence Act 1995 (NSW): Tcpt, p 97. Opinion evidence is generally inadmissible to prove the existence of a fact: Evidence Act, s 76. There are a number of exceptions, s 79 providing for admissibility where the opinion is given by a person who "has specialised knowledge based on the person's training, study or experience" and the evidence is "wholly or substantially based on that knowledge." There was little doubt that Mr Johnston had specialised knowledge as to the way people drive, what signs and other information may be absorbed by them and what kind of safety designs are effective to reduce accidents on roads. However, that kind of knowledge does not necessarily assist in identifying what is actually perceived by the driver as opposed as to what is recalled and described some time later. The point is made by one of Mr Johnston's own examples: a driver carrying on a conversation on a mobile phone may appear to be oblivious to his or her surroundings and unable to recall the trip later, but may have navigated successfully a winding country road. So much may be known through common experience; how and why it is achieved would require a level of psychological, or perhaps neuropsychological, expertise which Mr Johnston did not profess to have.

22 Secondly, the kinds of issues which had to be resolved at the trial were only marginally within the area of speculation in which Mr Johnston indulged. To say that different witnesses may have different perceptions of a particular event is a small part of the story. Mr Johnston's evidence assumed that the accounts of the plaintiff and Mr Gibson were both valid and simply needed to be reconciled. To the extent that psychological theory could provide assistance, it might be necessary to ask, (a) what the effect of serious physical injuries (though without loss of consciousness) might have on the recollection of the plaintiff as to events immediately preceding the trauma, (b) how the administration of morphine might have affected the plaintiff's immediate recounting of the events, and (c) long term psychological responses to a particular traumatic event; and for Mr Gibson, (a) the likely accuracy of his recollections three months after the accident, (b) the likely accuracy of his recollections four years after the accident, and (c) what was to be considered within his focus of attention immediately prior to the accident. On the plaintiff's evidence, she may have been partly distracted from attending to the road ahead by the conduct of the unidentified driver; there was however no equivalent "distraction" which might have affected Mr Gibson's perceptions. On that basis, were Mr Gibson's perceptions more reliable than the plaintiff's?

23 Thirdly, the fact that two witnesses may perceive an event very differently, especially when one is an outside observer and the other is an intimate participant, tells us nothing about whether their accounts are truthful or reliable. That is a matter which the trial judge had to assess for herself. Mr Johnston's theorising raised (without helping to resolve) an additional questions, such as did the plaintiff not see the semi-trailer, or not remember seeing it? Was it possible that the incident with the unidentified car had been transposed in time by the trauma?

24 In ruling on the question of admissibility the trial judge appeared to accept each of these points: Tcpt, pp 118(35)-119(5). First, she noted that:

"Somebody must design these roads and signs and the like. Mr Johnston seems to be one of them. So it appears to me it is an area of specialised knowledge."

25 In substance, this recognised correctly the area of Mr Johnston's specialised knowledge: what it did not do, however, was to consider the relationship of that knowledge to the opinion he sought to express.

26 Secondly, the judge continued:

"But, again, it seems to say no more than what common sense would say, in any event, that if you're focused on one thing you are going to miss other things."

If that were correct, it was not a field of specialised knowledge: there is much to be said for that view.

27 Thirdly, her Honour noted that "if it was being used to choose between one witness and another that would not be allowable, because that would be a matter for the judge". Again, this was correct: it did not support admissibility under s 79. In fact, it was precisely this last exercise which was undertaken in the opinions expressed by Mr Johnston.

28 Mr Johnston's report, and in particular sections 8 and 9, were inadmissible and should have been rejected.

(c) materiality of report

29 Although inclined to discount Mr Johnston's evidence as merely common sense, the judge in fact adopted his opinion as a central facet of her reasoning in reconciling the evidence of the plaintiff and Mr Gibson. This approach was logically flawed, a fact which was no doubt concealed by acceptance of Mr Johnston as an expert. The study which Mr Johnston referred to demonstrated, he said, that "under a number of different conditions, if subjects were not attending to a visual stimulus but were attending to something else in the visual field, a significant percentage of the subjects were 'blind' to something that was right before their eyes": at par 8.5. Accepting that to be a true summary of the results of the study, one would surely need to know what amounted to relevant "different conditions" and what constituted the "significant percentage". To leap, as Mr Johnston did, to the conclusion that "[t]his phenomenon appears to have occurred twice to some degree in relation to this incident" is unacceptable reasoning; to then jump from the conclusion that the phenomenon appeared to have occurred to an assumption that it did, again without adequate reasoning, is not only in itself flawed, but casts doubt on the expertise of the witness. Nevertheless, the trial judge adopted the same flawed approach.

30 There was a significant difficulty in amalgamating the two accounts as merely different perceptions of the same events. Mr Gibson's account had the plaintiff's car travelling behind the semi-trailer at the point at which the plaintiff lost control. The plaintiff's account was that she lost control when the mustard coloured car pulled in front of her and braked suddenly. In order to reconcile these accounts, it was necessary for Mr Johnston to dispose of the mustard coloured car. He did this, somewhat ungrammatically, by stating, "[t]he unidentified vehicle observed by Mr Gibson to pass the semi-trailer": at par 8.2. His meaning was not in doubt because he stated later that the plaintiff was "most probably responding to the vehicle which Mr Gibson observed travel around the semi-trailer": at par 8.10. The difficulty was that Mr Gibson was adamant that there was no such vehicle and he therefore did not "observe" it travel around the semi-trailer. The trial judge recognised the problem and also recognised that Mr Gibson had given no such evidence, but speculated that the unidentified car "was able, after braking, to go around the semi-trailer and proceed down the highway as Mr Gibson had observed vehicles to do": at [80]. Although the judge made such a finding "[o]n the balance of probabilities", there was no evidence to support it. Such a finding could not be made without saying why Mr Gibson's evidence to the contrary was rejected.

31 Mr Johnston's report was not only inadmissible, but formed the basis of the approach adopted by the trial judge. Accordingly, the finding as to inadmissibility requires that the finding on liability be set aside.

(d) application to admit further evidence

32 As noted above, the appellant sought to tender further evidence on the appeal, being a copy of the article by the two Harvard psychologists referred to by Mr Johnston, but not in evidence before the trial judge. That material went only to the admissibility of Mr Johnston's report. As that issue has been resolved favourably to the appellant, there is no occasion to determine the application to tender the evidence. The notice of motion should be dismissed on that basis. The costs of the motion should be costs in the appeal.

Flaws in finding on liability

33 If there were otherwise sufficient findings of fact, it might be possible for this Court to draw such inferences as were available in order to determine the question of liability without the need for a retrial. To determine whether that is so requires consideration of the critical findings made by the trial judge. They appear in a passage at [80]-[83] of the reasons, in the following terms:

[80] I find that there was an unidentified car that behaved in an intimidatory manner behind the plaintiff then overtook her and quickly cut in front of her and braked. This caused the plaintiff to panic and lose control of her vehicle. I do not accept that the unidentified car came to a complete stop in front of the plaintiff. On the balance of probabilities that car was able, after braking, to go around the semi-trailer and proceed down the highway as Mr Gibson had observed vehicles to do. I accept that the activities of the unidentified car distracted the plaintiff and contributed to her not noticing that there was a white semi-trailer attempting to move into lane one. I find, however, that there was such a semi-trailer and that if the plaintiff had been driving as a prudent driver and keeping a proper lookout she would have had some notice that it was about to enter lane one. This would have given her a better opportunity to avoid braking and steering in a way which resulted in her losing control of the vehicle.

[81] I accept that the plaintiff has a clear recollection of the car and its behaviour whilst it was behind her, overtaking her and when it appeared in front of her and braked. After that it seems to me the accident happened very quickly and the plaintiff has no clear recall of events. It is possible that Mr Gibson was correct and the plaintiff's vehicle moved slightly to the left and this caused her tyres to touch the ripple strip and in turn led to the over steer which led to the loss of control.

[82] I find the semi-trailer moved from the breakdown lane into lane one when it was not safe to do so and this started a 'chain reaction' which compounded actions of the unidentified car.

[83] I therefore find there was both an unidentified semi-trailer and an unidentified motor car and the actions of both contributed to the accident."

34 In the first two sentences of this passage, the judge found that it was the unidentified car which caused the plaintiff to panic and lose control. The second step in the reasoning involved an acceptance that there was a white semi-trailer and that the plaintiff did not notice it. The conclusion in the last sentence of [80] was that, had she noticed it, that would have "given her a better opportunity to avoid braking and steering in a way which resulted in her losing control of the vehicle." It is not clear that this last conclusion is consistent with the one first set out that the cause of the loss of control was panic resulting from the conduct of the unidentified car.

35 This difficulty is compounded by the possibility, recognised at [81], that it was the moving to the left, causing the tyres to contact the ripple strip, which led her to oversteer and lose control. There is no express statement that the unidentified car led her to move to the left, nor that it was touching the ripple strip which led to the panic which was earlier described as causing the loss of control.

36 Finally, the proposition that the white semi-trailer started a "chain reaction" which "compounded" actions of the unidentified car introduced a yet further element into the causal mix without any explanation as to how the movement of the semi-trailer compounded the problem. Had that been explored, it would have been necessary to consider whether the unidentified car braked because the semi-trailer pulled out in front of it and, if so, why the driver would have pulled in front of the plaintiff, when his apparent intention was to overtake her because she was going too slowly. Unless the unidentified vehicle also failed to see the semi-trailer moving even more slowly than the plaintiff, the movement back in front of her makes little sense. (The next exit was two kilometres ahead.)

37 The appellant submitted that the two accounts were simply irreconcilable and that the fact finding of the trial judge miscarried because she sought a reconciliation which was not available. In one sense, the appellant was correct: a reconciliation could only be achieved on a selective basis. The question was whether there were grounds to allow such a selection to reach a conclusion on the balance of probabilities, or whether the trial judge could not have been satisfied that there was an unidentified vehicle which caused the loss of control, because without deciding which vehicle was involved she would not be able to determine the causal connection between its conduct and the loss of control by the plaintiff.

38 There is no doubt that the plaintiff faced serious difficulties in proving her case. The judge accepted that "both Mr Gibson and the plaintiff were doing their best to recall the events of 2009." As the judge noted the passage in Mr Gibson's evidence which was "truly inconsistent with the evidence of the plaintiff" was that when she commenced to brake "there were no vehicles between her car and the white semi-trailer and that if the plaintiff had not swerved she would have collided with the rear of the semi-trailer": at [73].

39 The trial judge apparently discounted Mr Gibson's evidence in that regard on the basis that it was "the type of detail which is likely to be lost with the passing of time, and indeed could be easily missed as the event was rapidly unfolding": at [74]. If that were true of Mr Gibson, it might also have given cause to look carefully at the plaintiff's evidence. The one factor on which the plaintiff was adamant was that the car in front of her "suddenly stopped" and she attempted to "swerve around" the unidentified sedan. She used this language on the evening of the accident, indeed a mere two hours after the accident occurred, as recorded in the medical records on her admission to hospital. She maintained that view in her evidence at trial: Tcpt, p 54(27):

"Q. Did it come to a full stop?

A. Yes, because he put the full brake. It stopped. He stopped. It wasn't moving. It stopped."

40 This central proposition, to which the plaintiff adhered without qualification over four and a half years, was rejected by the trial judge. (The judge said that the plaintiff "conceded" that the unidentified car "could not have come to a complete stop", but the concession was made by counsel, not the plaintiff: at [79].)

41 Exactly one month after the accident, at a time when she had a solicitor acting for her, the plaintiff signed a personal injury claim form which described the "weather and road conditions" as "raining, road was wet". In her evidence she said it had been raining but was no longer raining at the time of the accident, but the road was wet: Tcpt, p 51(35)-(43). The police report contradicted this fact; nevertheless, when asked in evidence whether one of the reasons that her car spun out of control was because of the wet road, she answered "obviously": Tcpt, p 44(15).

42 When the first statement of claim was filed on 12 January 2012 it contained, for the first time so far as the evidence revealed, an allegation that the unidentified vehicle "began to tailgate" the plaintiff's vehicle, subsequently overtook and then cut in front of the plaintiff and braked suddenly. This was the first reference to "tailgating".

43 By the time she gave evidence on 10 March 2014 (Tcpt, p 16(45)), the behaviour of the unidentified car had deteriorated:

"I see a car coming really close that's about to hit my back of the car. I start to panic a bit as I realise he starts to turn on and off the high beam lights and it's reflecting to my eyes in the mirror. It was too close that it was about to hit me. Then at that stage I was panicking. As I was panicking he finishes off with a big aggressively horn of his car really loud and then he overtakes me to the middle lane.

... He slowed down next to the same limit as I am. As I see a brown car, Ford Falcon, it's tinted window, I couldn't see only a shadow but the shadow looked like as a man. Looked at me and then he overtake me quickly went in front of me. That's when I started to brake then because he was too close. ...

...

He puts a full brake, a full brake. He stops a full brake. I couldn't believe it. I don't know why."

44 The difficulty is not merely that the key details originally recounted were wrong, but that the additional information was provided only late in the day and without any real explanation as to why it was omitted from earlier accounts.

45 In order to determine the question of liability it is necessary to resolve the inconsistencies between the plaintiff's account and that of Mr Gibson and to resolve which elements of each should be accepted. The ambivalence revealed in the findings made by the trial judge, as set out above, require that the exercise be undertaken afresh, without the distraction of Mr Johnston's report. Although it is true that the judge was satisfied that "both Mr Gibson and the plaintiff were doing their best to recall the events of 2009" (at [73]), that is not the only factor affecting the reliability of their respective testimonies. In accordance with our system of oral presentation, that exercise should be undertaken at a trial by a judge who has the opportunity to assess their oral presentation. The exercise cannot be undertaken by this Court. Accordingly, the question of liability must be remitted to the District Court for determination.

Cross-appeal - liability

46 The plaintiff's cross-appeal raised three grounds which appeared to be related. They were not specifically addressed in submissions, except by a statement in the written submissions that they had been "dealt with in the submissions on the appeal."

47 The first ground alleged error on the part of the trial judge in finding that the plaintiff should have been aware of the large slow moving semi-trailer entering lane 1 and that, had she been so aware, she may have been able to slow her vehicle and reduce the chance of losing control.

48 That finding was clearly available to the trial judge, although it was not exactly clear how it was intended to fit within her reasoning, a matter which has already been considered. It is not necessary or appropriate to say more about that issue, as there will need to be a retrial.

49 The second ground asserted that the plaintiff was faced, immediately prior to the accident, with "an agony of the moment situation" and the trial judge should have so found. This was presumably intended to lead into the third ground which was a complaint that the trial judge erred in reducing damages by 15% for contributory negligence.

50 This complaint supports the conclusion that the findings of fact with respect to liability were inadequate. If the loss of control was caused by the unidentified car pulling suddenly in front of the plaintiff and braking aggressively, an assessment of contributory negligence between zero and 20% might have been appropriate. If the negligence was in failing to observe the semi-trailer pulling into lane 1, one might have expected an assessment of contributory negligence of 50% or more. Given the need for a retrial, it is neither necessary nor appropriate to say more with respect to these grounds.

Cross-appeal - damages

51 The plaintiff also challenged aspects of the trial judge's assessment of her loss. These challenges fell into three categories, namely:

(a) an inadequate allowance for lost earning capacity;

(b) the reduction for vicissitudes of 25%, and

(c) an inadequate allowance for future domestic assistance.

(a) loss of earning capacity and vicissitudes

52 The first complaint in this regard was that the trial judge held that the plaintiff had lost 50% of her earning capacity. Even if that figure were not unduly low as a reflection of her current condition, the plaintiff noted that the medical evidence supported a likely increase over time of the arthritic condition in her hip and possibly in her ankle, with the result that her earning capacity would decrease over the years. The plaintiff contended that she was likely to become unemployable at age 56 and would not be able to work through to age 67, being the outer limit accepted by the trial judge. On that basis, the judge underestimated the overall diminution of earning capacity over the plaintiff's lifetime.

53 These are not matters to be dealt with on the probabilities, but rather by reference to the variable assessment approved in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638. These factors may be taken into account by determining a baseline figure for loss of earning capacity and making allowance by way of a calculation for vicissitudes, by which the uncertainty surrounding the timing and extent of any deterioration can be taken into account. Such an approach is mandated by the Motor Accidents Compensation Act, s 126.

54 The medical evidence with respect to the plaintiff's physical and psychological injuries was summarised by the trial judge in considering the amount which should be awarded for non-economic loss. In the course of that assessment, the judge accepted that the plaintiff "is highly likely to develop arthritis in her hip and possibly her ankle and that at some time in the future her pain will increase and she may require further surgery": at [121].

55 In considering her past economic loss, the judge noted the level of work being undertaken shortly prior to the accident, as she returned to the workforce while caring for her first child, and noting the expectation of her treating doctor that she should have been able to return to light duties by 17 March 2011: at [127]. The judge noted the undoubted need for restrictions on lifting. She referred to evidence as to possible occupations at [133]:

"Suitable work options were identified as out of school hours care worker, mail clerk and general clerk. It was suggested that the plaintiff would have transferable skills and would be suited to working in an administrative position in childcare."

56 The judge rejected the possibility of her working as a mail clerk or a general clerk, given her present level of pain: at [135]. She also noted the limits on her capacity to work in the childcare industry: at [136]. The findings with respect to past economic loss are not challenged.

57 With respect to future loss, the judge set out the positions of each party:

"[148] The schedule relied upon by the plaintiff calculates future economic loss as the net wage per week of $615.22 and on the basis that she will be entirely unemployed for three years and then have a residual earning capacity of $100 per week for the next 22 years to age 55 at which time she will again have no residual earning capacity. These calculations amount to a total of $415,548.61.

[149] The defendant conceded a $200 per week reduction in earning capacity for 37 years which is $178,720."

58 Referring to s 126 of the Motor Accidents Compensation Act, the judge noted that it was necessary for the Court to be satisfied about the plaintiff's "most likely future circumstances but for the injury" and to take account of the likelihood of some loss of capacity occurring for other reasons. The judge concluded:

"[153] I find that the plaintiff's most likely future circumstances but for the injury would be that she would have remained employed in the childcare industry but would have had between nine months and one year off around the birth of her second child and may not have always had full time work. I also accept that there was a slim possibility that she may have been promoted to an administrative position within that industry which may have brought with it a slightly higher level of remuneration.

[154] I also accept that due to the nature of her injuries the plaintiff will require a period of time for retraining and a recovery in her psychological condition before she can obtain suitable employment. I also accept that there is a possibility that because of her injuries she may not be able to work through to age 67 but I do not accept that she will become unemployable at age 56.

[155] I therefore allow 1 year loss at the rate of $600 net per week. I then assess the plaintiff has lost 50% of her earning capacity and I allow her $300 per week for the remaining 36 years. The normal reduction for vicissitudes is 15%. On the findings I have made there needs to be an adjustment for the possibility that the plaintiff would be absent from the workforce for some time surrounding the birth of her second child and may from time to time work part time. This would increase the reduction for vicissitudes to 30%; against this is the probability that she will have to leave the workforce before age 67 as a result of her injuries. I therefore find the appropriate discount figure is 25%."

59 In her notice of cross-appeal, the plaintiff complained that, far from making allowance for the likelihood of early incapacity, the judge in fact increased the usual amount on account of vicissitudes from 15% to 25%. However, as the reasoning at [155] reveals, that was not the exercise the judge undertook. Rather, having started with a baseline rate of $600 net per week (being broadly the figure relied upon by the plaintiff), she then made allowance for the possibility that the plaintiff would not be in full time employment throughout her life, which doubled the usual allowance for vicissitudes. That figure was then reduced to take account of the possibility that, because of her injuries, she would leave the workforce before age 67.

60 These calculations and assessments are very much a matter of impression for a trial judge. The plaintiff did not demonstrate any error of fact, principle or law in the approach adopted by the trial judge: the challenge to the amounts awarded on these grounds must be rejected.

(b) future domestic assistance

61 After the accident, the plaintiff went to live in her parents' house. She made a claim for gratuitous domestic assistance in the past, which the trial judge dealt with over a number of periods. For a period of six months following the accident, the plaintiff comfortably satisfied the minimum criteria prescribed by s 141B(3) (formerly s 128(3)). She also satisfied the statutory criteria for the next two years and was awarded damages for those periods. Thereafter, the judge concluded that the level of care provided fell below the statutory minimum and no further amount was awarded for past gratuitous domestic assistance.

62 There was also a claim for future assistance for the plaintiff's son, as her dependant, which was assessed pursuant to s 15B of the Civil Liability Act 2002 (NSW). Because the plaintiff's mother, it was held, would have provided such assistance during weekdays, were it not for the accident, the claim was rejected because the remaining weekend period did not satisfy the statutory minimum. That decision is not challenged.

63 Consistently with the finding that the level of services provided to the plaintiff for domestic assistance had dropped below the statutory minimum with respect to gratuitous assistance, the trial judge did not award anything for gratuitous assistance for the future. However, the plaintiff also made a claim for domestic assistance on a commercial basis, namely "for 8.45 hours per week for the rest of her life": at [179]. The trial judge approached that claim on the basis of two contingencies. The first was that her parents would not be able to continue providing assistance indefinitely, due to their aging, although when they might cease to be able to provide assistance was uncertain. The second contingency was that the plaintiff remained at home. The judge said that it was "by no means clear when, or indeed if, the plaintiff shall leave her parents' home": at [181]. Taking these contingencies into account, the trial judge delayed the appropriate payment for domestic assistance for a period of three years: at [182].

64 That delay was challenged by the plaintiff, on the basis that the plaintiff had expressed a preference to engage commercial care if finance were available, even while she remained in her parents' home. She complained that the trial judge did not deal with that expression of her wishes, but merely noted that there was "no evidence of the plaintiff's mother's attitude to paid help": at [182].

65 In fact the judge did refer to her expressed preferences: at [169]. Thereafter the reasoning may have been sparse, but it is tolerably clear that the judge did not think that the plaintiff, who is dependent on her mother to a large extent, would have obtained commercial assistance in her parents' home, without her parents' approval. The judge was not satisfied that that would be forthcoming. No doubt some allowance could have been made for the contingency, but, given the further contingency as to when gratuitous domestic assistance was likely to terminate, over-precision in such a calculation is not to be expected. Although the plaintiff's mother was called, there was no submission in this Court that the issue of commercial assistance was raised with the mother in her evidence. Accordingly, there is no basis for this Court to intervene in the assessment made in this respect.

66 The final issue concerns the limited hours permitted by the trial judge and the period over which the domestic assistance was calculated. The judge accepted a need for domestic assistance of two hours per week over a period of 45 years, rather than the plaintiff's life expectancy.

67 Dealing with the period first, it is almost inevitable that some allowance must be made for the needs of most elderly people for domestic assistance in their later years, regardless of the tortious injury. This can be dealt with by allowing a reduction for vicissitudes, or by limiting the period over which domestic assistance is calculated. Either mechanism is available in order to limit the amount claimed to that which is consequent upon the accident. Allowing assistance until the plaintiff turned 75 was a reasonable approach.

68 So far as the number of hours is concerned, it must be recalled that economic loss was assessed on the basis that the plaintiff retained 50% of her earning capacity, but with restrictions on lifting. Consistently with that approach, the judge accepted that some assistance would be needed with heavier household tasks.

69 The trial judge referred to a report provided by Dr Stephen Buckley, a consultant physician in rehabilitation medicine, dated 8 June 2012. Dr Buckley noted the plaintiff's assertion that she was "entirely independent in activities of daily living", but was unable to help "with all the chores at home", although she still made her own bed. Dr Buckley found that she was "unfit to carry out ordinary handyman duties" and opined that she required "three hours a week of handyman assistance for outdoor domestic maintenance, for an average size suburban cottage." He also concluded that she required five hours a week of housekeeper assistance "to carry out the ordinary indoor domestic maintenance tasks of cleaning, scrubbing, washing and vacuuming, for an average size suburban cottage."

70 The trial judge accepted part, but not all, of Dr Buckley's assessment. In particular, she noted that the plaintiff had a child and if she lived outside her parent's home, would not require an average-sized suburban cottage. The trial judge also referred to the evidence of Dr Joan Chen, and her report of 1 August 2012 in which she expressed the view that the plaintiff would require "ongoing assistance with vacuuming and mopping of the floor and cleaning of the bathroom" but believed that she would be able to do the laundry. Dr Chen noted that the plaintiff had "no restriction with overhead reaching". In Dr Chen's view her main requirement for domestic assistance was with vacuuming, mopping and cleaning of the bathroom which, with reference to a three bedroom, one bathroom single storey house similar to that in which she had lived prior to the accident, would involve between 1.5 and two hours to complete: at [168]. It is clear that the trial judge accepted this evidence in allowing two hours per week at $35 per hour.

71 Again, it must be accepted that such calculations are impressionistic and will depend to some extent upon the judge's assessment of the plaintiff as well as the assessment made by rehabilitation physicians. Further, it is clear that the judge accepted the physical attributes of the premises on which Dr Chen's calculation was based, and expressly rejected the assumption made by Dr Buckley in that respect. In these circumstances, there is no basis to interfere with the trial judge's assessment.

Cross-appeal - damages: conclusion

72 The plaintiff's cross-appeal should be dismissed.

Costs

73 The appellant has been successful in its appeal and successful in resisting the cross-appeal. The parties largely, if reluctantly, accepted that in the event the finding on liability were to be set aside, the matter would need to return to the trial court. In these circumstances, there was no suggestion that any order for costs should be made other than the usual order that they follow the event. Accordingly, Ms Ismail must pay the costs of the appeal and cross-appeal.

74 The order made by the trial judge with respect to the costs of the trial should be set aside. Those costs should remain in the discretion of the judge hearing the retrial on liability.

Orders

75 The Court should make the following orders:

(1) Allow the appeal and set aside orders (1) and (2) made in the District Court on 31 March 2014.

(2) Order that there be a retrial of the questions of liability and, if liability is established, contributory negligence.

(3) Dismiss the appellant's motion to allow further evidence on appeal;

(4) Dismiss the cross-appeal.

(5) Order that the respondent and cross-appellant (Ms Ismail) pay the costs of the appellant and cross-respondent (Nominal Defendant) in this Court, including the costs of the motion.

(6) Grant the respondent (Ms Ismail) a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal.

76 BARRETT JA: I agree with Basten JA.

77 EMMETT JA: This appeal arises as a consequence of injuries suffered by the respondent, Ms Najibah Ismail, when she lost control of the motor vehicle that she was driving in a westerly direction on the M4 early in the evening of 24 August 2009 and collided with another vehicle travelling in the same direction. Ms Ismail sued the appellant, the Nominal Defendant, on the basis that the collision was caused by the negligence of the driver of an unidentified mustard-coloured Ford sedan. The Nominal Defendant filed defences in which, relevantly for present purposes, it alleged that Ms Ismail's injuries were suffered as a result wholly or partly of her own fault and contributory negligence.

78 Subsequently, the Nominal Defendant filed a defence in which it denied that there was a mustard-coloured Ford sedan involved and that Ms Ismail's injuries were suffered when she braked suddenly when an unidentified white semi-trailer started to move into the lane in which she was travelling. The Nominal Defendant alleged that Ms Ismail's version of the collision as alleged in her statement of claim was deliberately false and misleading. That prompted Ms Ismail to file an amended statement of claim in which she alleged, alternatively, that an unidentified semi-trailer was involved in causing the collision that gave rise to her injuries.

79 At the trial in the District Court, the trial judge heard evidence from Ms Ismail and from Mr Daniel Gibson, who was driving a truck several vehicles behind Ms Ismail in the same lane. Ms Ismail's evidence was that a mustard-coloured Ford vehicle first tailgated her, then overtook her, then pulled in front of her and then stopped suddenly, causing her to lose control of her vehicle. She said that she did not see a white semi-trailer. Mr Gibson, on the other hand, said that he did not see a mustard-coloured Ford and that Ms Ismail's vehicle approached the white semi-trailer that was moving into her lane, braked suddenly, moved to the left and then to the right across two lanes and collided with another car. The two versions were irreconcilable.

80 Before the trial judge, Ms Ismail tendered a report by Mr Grant Johnston expressing an opinion as to the circumstances of the collision. The trial judge admitted Mr Johnston's report over the objection of counsel for the Nominal Defendant.

81 The trial judge said that the thrust of Mr Johnston's report and his oral evidence was that, although there were differences between what Ms Ismail and Mr Gibson now recalled seeing, they were in fact seeing different components of the same sequence of events. That was because they were each focusing on individual components: Ms Ismail's focus was on the unidentified mustard-coloured Ford and Mr Gibson's focus was on the unidentified white semi-trailer. Her Honour observed that that was an example of "inattentional blindness", which, her Honour said, was defined as the failure to perceive something that is directly visible within one's direct perceptual field as a result of the individual focusing of attention on some other item. Her Honour considered that that was a scientific explanation of what is a common occurrence of people not seeing "what is hidden in plain view".

82 The trial judge found that there was an unidentified mustard-coloured car that behaved in an intimidatory manner behind Ms Ismail's car, then overtook her and quickly cut in front of her and braked. Her Honour found that, after braking, the unidentified car was able to go around the white semi-trailer (which her Honour found was also present) and proceed down the highway. Her Honour found that if Ms Ismail had been driving as a prudent driver and keeping a proper lookout, she would have had some notice that the semi-trailer was about to enter her lane. Her Honour found that the semi-trailer moved from the breakdown lane into lane 1 when it was not safe to do so and that that started a chain reaction that compounded the actions of the unidentified mustard-coloured car. Her Honour therefore found that there was both an unidentified white semi-trailer and an unidentified mustard-coloured motor car and that the actions of both contributed to Ms Ismail's accident.

83 In its notice of appeal, the Nominal Defendant's grounds of appeal include that the trial judge erred in admitting Mr Johnston's opinion evidence and in permitting him to give oral evidence as to his opinion. I have had the advantage of reading in draft form the proposed reasons of Basten JA for concluding that the appeal should be upheld. I agree with his Honour's reasons for concluding that Mr Johnston's opinion evidence should not have been admitted by the trial judge. Mr Johnston is a traffic engineer and, while certain of the evidence in his report was admissible, his opinion evidence concerning inattentional blindness was not. The evidence did not establish that Mr Johnson's opinion was wholly or substantially based on specialised knowledge of Mr Johnston that is based on Mr Johnson's training, study or experience within s 79 of the Evidence Act 1995 (NSW). Hence, s 76 of the Evidence Act, which provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed, rendered Mr Johnson's opinion evidence inadmissible. I also agree with Basten JA that, in the circumstances, unfortunate though it is, there must be a new trial on the question of liability and, if liability is established, on contributory negligence.

84 Ms Ismail also cross-appealed in relation to the assessment of damages. I agree with Basten JA, for the reasons proposed by his Honour, that the cross-appeal must be dismissed.

85 I agree with the orders proposed by Basten JA.

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Decision last updated: 17 December 2014