Allen v Robbie

1. [1]

   McCOLL JA: I agree with Harrison J’s reasons and the orders his Honour proposes.

2. [2]

   SIMPSON JA: I agree with Harrison J.

3. [3]

   HARRISON J: Jeanette Robbie was injured on 15 April 2010 when she was struck by a motor vehicle driven by Lisa Allen on the Great Western Highway at Blackheath. Ms Robbie sustained severe injuries. She sued Ms Allen for damages in the District Court of New South Wales. The proceedings were heard by Williams ADCJ who found that the accident had been caused by the negligence of Ms Allen. His Honour gave judgment for Ms Robbie, undiscounted for contributory negligence, and awarded her damages in the sum of $685,580.

4. [4]

   Ms Allen appeals from that decision on the following grounds:

   1. (1)

      His Honour failed to make necessary findings of fact.

   2. (2)

      His Honour failed to engage in any rational examination or analysis of the evidence including:

   3. (3)

      His Honour erred in the approach adopted and findings made regarding the following:

   4. (4)

      In respect of damages, the trial judge erred in refusing to admit into evidence the expert report of Lance Kahler, Forensic Accountant, and generally in the approach his Honour adopted to the assessment of economic loss.

The accident

1. [5]

   The IGA supermarket at Blackheath is located on the eastern side of the Great Western Highway about 50 metres north of the north eastern corner of Leichhardt Street. Blackheath Primary School is located on the south eastern corner of Leichhardt Street and the highway. The supermarket has a vehicular driveway entrance on its northern side that gives access to a rear parking lot, and a corresponding vehicular driveway exit on its southern side. At about 12.20pm on 15 April 2010 Ms Allen was preparing to drive her white 1995 Corolla Seca sedan out of the supermarket premises using the exit driveway where she intended to turn right at the highway and head north towards the village of Blackheath. Shortly beforehand Ms Robbie had parked her Range Rover four wheel drive motor vehicle facing north on the western side of the highway about 15 to 20 metres from the northern edge of the supermarket exit driveway alignment.

2. [6]

   Ms Robbie alighted from her car with the intention of crossing the highway to purchase groceries at the supermarket. She stopped briefly near the painted white line that marked the division between the carriage way travelling north and the breakdown lane and waited for the traffic to clear. She then commenced to cross the highway in an easterly direction towards the supermarket. As Ms Robbie was crossing the highway, but before she had proceeded beyond the northbound lane, Ms Allen drove her car out of the supermarket exit turning right across the southbound traffic lane and into the northbound lane where it collided with Ms Robbie, knocking her to the ground.

3. [7]

   Although several other witnesses gave evidence about these events, and because the so-called objective evidence was limited, the case before the trial judge turned largely, although not exclusively, upon a comparison of what Ms Robbie and Ms Allen said had happened.

4. [8]

   Ms Robbie gave the following evidence:

5. [9]

   Ms Allen gave the following evidence:

The experts

1. [10]

   Each of the parties qualified an expert in the reconstruction and explanation of motor vehicle accidents. Mr Schnerring provided an opinion for Ms Robbie and Mr Keramidas provided an opinion for Ms Allen.

2. [11]

   Mr Schnerring came to the following conclusions:

3. [12]

   Mr Keramidas came to the following conclusions:

The judgment below

1. [13]

   With the assistance of this evidence and these opinions his Honour found in favour of Ms Robbie. His process of reasoning to that conclusion is the subject of the present appeal. His Honour’s judgment was relevantly in the following terms:

2. [14]

   Some additional reference to other portions of his Honour’s reasons is made below.

Ground 2 – failed to engage in a rational examination or analysis of the evidence

1. [15]

   It is convenient to examine these grounds together.

2. [16]

   Ms Allen contended that his Honour failed to make a series of factual findings that were central to his conclusions. They are as follows:

   1. (1)

      Where Ms Allen’s vehicle was parked.

   2. (2)

      The point of impact on the roadway.

   3. (3)

      The point of contact with the vehicle.

   4. (4)

      The speed of Ms Allen’s vehicle.

   5. (5)

      Ms Robbie’s conduct before the collision.

   6. (6)

      Ms Robbie’s failure to see Ms Allen’s vehicle after it commenced to turn.

   7. (7)

      The dynamics of the collision.

   8. (8)

      Ms Robbie’s secondary rest position.

   9. (9)

      Whether the right hand [turn] indicator of Ms Allen’s vehicle was activated.

   10. (10)

       Damage to the vehicle.

3. [17]

   Ms Allen contended that had these findings been made it would have resulted in a verdict for her as there was no breach of duty of care that was causative of the accident.

4. [18]

   It is apparent from the way in which his Honour approached his task that he did not consider that the evidence was sufficient to enable him to make at least some of the findings for which Ms Allen contends. Principal among Ms Allen’s contentions is that a finding that Ms Robbie was not struck head on by Ms Allen but instead collided with the passenger side of her vehicle is inconsistent with a finding of fault on her part. Ms Allen contends in several contexts that a finding to that effect would have exculpated her as it suggests that Ms Allen had driven past Ms Robbie and in effect owed her no discernible duty in such circumstances.

5. [19]

   In my opinion the approach taken by his Honour was neither irrational nor erroneous. On the contrary his Honour clearly explained what he considered the evidence revealed to him and the way that it explained how the accident occurred. That approach appears to have produced the following conclusions and findings about what happened.

6. [20]

   Ms Allen was preparing to drive out of the IGA store and enter the Great Western Highway turning right across the traffic heading south and into the lane of traffic heading north. She necessarily had simultaneously to negotiate breaks in the traffic in each direction to do so. In a related fashion Ms Robbie was also preparing at that time to cross from the western side of the road across the same two lanes of traffic in order to reach the eastern side. It is a fair assumption that Ms Allen was looking to her left immediately before she returned her view to the front, and hence her intended direction of travel. She entered the northbound lane as, in his Honour’s words, she was entitled to do. Correspondingly it seems likely that Ms Robbie looked first to her right as she prepared to cross the northbound lane and that she turned to her left to watch for traffic coming from her left in the southbound lane as she did so. The break in the traffic in the northbound lane that induced Ms Allen to turn into it simultaneously permitted Ms Robbie to walk across it.

7. [21]

   At the point when Ms Robbie stepped into the northbound lane it was clear of traffic. His Honour concluded that when she did so Ms Allen was not even on the roadway. Conversely, at the point when Ms Allen drove onto the roadway it was not clear because it was then occupied by Ms Robbie. The likelihood is that when Ms Robbie was struck she was closer to the marked line separating the lane proper from the parking bay, because she was struck by, or walked into the passenger side of, Ms Allen’s vehicle. However, little turns on that in the final analysis. That is because on any version of the evidence Ms Robbie was in that lane when this occurred.

8. [22]

   It is also clear that Ms Allen was looking to the front, or northwards, at the point of the collision as she gave evidence of seeing Ms Robbie’s face or head as it struck the windscreen. Ms Allen undoubtedly failed to see Ms Robbie walking in her lane of traffic until that occurred. She should have seen her sooner and would have done so if she had been keeping a proper lookout. Part of the obligation that the law imposed upon Ms Allen was that she was required not only to negotiate vehicles that were or might have been in the lane of traffic into which she was proposing to drive but also pedestrians who were or might have been there as well.

9. [23]

   The fact that Ms Robbie walked into the side of Ms Allen’s vehicle does not exculpate Ms Allen because Ms Robbie was in her lane of traffic when this occurred and presumably looking to her left. In terms of the language of avoidability to which the experts both resorted, Ms Allen should have avoided the collision by seeing Ms Robbie in her lane of traffic moving in an easterly direction towards the centre of the road. Ms Allen should either have waited in the exit driveway until Ms Robbie had done so or stopped on the roadway to permit her to do so.

10. [24]

    The putative failure of his Honour to make the findings of fact for which Ms Allen contends is not destructive of that analysis.

11. [25]

    First, the point at which Ms Robbie parked her car is not critical to his conclusions. The difference in the distance between the two possible locations is no more than about three lengths of the car Ms Allen was driving. Ms Allen is likely to have been travelling in first gear, as she said she was, and at or about the same speed in either case.

12. [26]

    Secondly, the point of impact on the roadway is also not critical. Accepting both that Ms Robbie collided with the side of Ms Allen’s vehicle and that that occurred at some position on the northbound lane, it is not possible to say precisely where the collision occurred. Both experts accepted that there was no objective evidence from which they could identify the precise location in the road where the impact occurred. His Honour cannot therefore be criticised for failing to make a finding about it. It would have been artificial for him to have done so. Its apparent significance also recedes once it is accepted that the collision was not a front end collision. Ms Robbie insisted in her evidence that it was, but the evidence otherwise reveals that she must be wrong about that.

13. [27]

    Thirdly, the point of contact was accepted by both experts to be on the passenger side of the vehicle. His Honour expressly stated that the “expert testimony tended to be to the effect that rather than Ms Allen hitting Ms Robbie, Ms Robbie walked into the side of Ms Allen’s vehicle.” He went on to say that the precise manner of the collision was “not necessarily to the point.” His Honour did not proceed upon the basis that Ms Robbie was struck head on by the front of Ms Allen’s car, a matter about which Ms Allen cannot in the circumstances complain.

14. [28]

    Fourthly, the speed of Ms Allen’s vehicle could not have been precisely determined. She told the police that she had been travelling at approximately 25 km/h. Her evidence at the hearing was that she was travelling at about 15 or 20 km/h although, quite significantly in the present context, she said “I don’t really know.” In cross-examination Ms Allen maintained that she was still in first gear and had been taught never to change from first gear until she had reached 20 km/h. Ms Allen contended that his Honour should have found that she was travelling at 20 km/h. It seems apparent that that is a fair assumption or conclusion to draw from the evidence but his Honour’s failure to make a specific finding to that effect does not reliably inform or suggest that if he had made such a finding it would have produced any different result.

15. [29]

    Fifthly, Ms Allen contended in this Court that the most likely circumstance is that Ms Robbie left her vehicle after Ms Allen commenced exiting the driveway at which time her attention was directed to the traffic on the road. This was posited upon the basis that Ms Robbie was on Mr Keramidas’ view within 1.0 to 1.5 metres of the fog line or in other words had taken no more than a few steps when the collision occurred. Once again that contention does not accord with his Honour’s conclusions. His Honour was satisfied that Ms Robbie exited her vehicle, was waiting for a break in the traffic and had seen Ms Allen’s vehicle at the exit of the IGA. His Honour was also satisfied that Ms Robbie “had entered the roadway to cross it as she was entitled to do”. Ms Allen’s complaint that his Honour somehow failed to make a specific finding about whether Ms Robbie left her vehicle after Ms Allen commenced to leave the driveway is in these circumstances either wholly irrelevant or insignificant. The so-called failure neither derogates from his Honour’s findings in general nor advances the case proposed by Ms Allen in particular.

16. [30]

    Sixthly, Ms Allen submitted that a probable explanation for Ms Robbie not seeing Ms Allen’s vehicle travelling northbound is that she was at that time “engaged in removing herself from [her] vehicle in order to cross the road.” Ms Allen submitted that a finding to that effect “ought to have been made by the primary judge” and that his Honour “erred in failing to consider this central question.”

17. [31]

    The difficulties with that contention in my view are that there was no evidence to support the making of any such finding and it was not central in any event. It seems to be a logical and available conclusion, as I have earlier described, that Ms Robbie and Ms Allen each took advantage of the same break in the northbound traffic either to cross the road or drive onto it. It is unrealistic to suggest that Ms Robbie could still have been in her car when Ms Allen commenced to do so, especially given Mr Keramidas’ view, and the associated evidence to support it, that Ms Robbie was well into the lane when she was struck. His Honour’s so called failure to make this finding is neither surprising nor relevant.

18. [32]

    Seventhly, upon my reading of his Honour’s reasons, a failure by him to dissect the technical possibilities of the cause of the accident ought not to be permitted to disguise the fact that he accepted that the collision was not a head on collision but occurred when Ms Robbie came into contact with the side of Ms Allen’s car. Mr Keramidas expressed the view that the evidence about this was “quite conclusive” and positively excluded even the possibility that the accident could have been a frontal impact. He said that “the most likely impact configuration involved the pedestrian walking into the front near-side guard of that vehicle at the time of impact” and Mr Schnerring did not offer a different view. There is nothing either expressly referred to by his Honour in his judgment or implicit in it that he came to any other conclusion.

19. [33]

    Eighthly, Ms Allen also emphasised what she said was the importance of Ms Robbie’s secondary rest position, or the position to which she was taken following the accident from where she initially came to rest on the roadway. Ms Allen contended that consideration by his Honour of the evidence about that would have permitted him to make a finding as to Ms Robbie’s initial rest position and therefore the likely point of impact on the road surface.

20. [34]

    Concern with this issue overstates the significance of attempting to isolate where the collision occurred with geographical certainty. What seems to be beyond doubt is that Ms Robbie was on the road surface somewhere in the northbound lane when she was struck. As such, on her case, Ms Robbie was within full view of an attentive driver travelling in her direction at approximately 20 km/h on a fine and clear day. Once again it may have been critical to make such a finding if the dispute between front end collision and side impact were alive and maintained. It is not.

21. [35]

    Ninthly, the issue of whether Ms Allen had or had not activated her right turn indicator seems to me to be wholly unrelated to the determination of any significant issue with respect to Ms Allen’s liability. The only evidence about this issue came from Ms Allen who said that her indicator was on. Ms Robbie did not suggest that it was not. Whatever the position, Ms Robbie stepped from the side of the road into the traffic lane. Her decision to do so does not appear to have turned upon whether or not Ms Allen’s indicator had been activated. If it had not been activated it does not inform a conclusion about Ms Allen’s negligence. If it had been it could only be relevant to the issue of Ms Robbie’s contributory negligence. This is referred to later in these reasons.

22. [36]

    Finally, there was evidence of the nature and extent of the damage to Ms Allen’s vehicle. With the exception of the smashed windscreen, the damage is both minor and difficult to detect. There is no damage to the front of the car at all. His Honour said that “regrettably there is no truly objective evidence as to the circumstances of the accident.” That statement has to be understood in its context. The damage to the vehicle was objective evidence. It excluded a front end collision. It was consistent with a side collision. However, the evidence of damage was inconclusive as to precisely what led to the accident or, in his Honour’s words, “as to the circumstances of the accident.” His Honour was presented with conclusive evidence of a side collision but it remained inconclusive on the issue of who was responsible.

23. [37]

    In my opinion, none of his Honour’s suggested failings is consequential. The evidence of Ms Allen and Ms Robbie is a rich source of information about the accident and an adequate collection of observations from which his Honour could arrive at his conclusions. Ms Allen has not demonstrated a connection between the nominated failures to find specific facts and an erroneous outcome.

24. [38]

    Evident in the manner in which his Honour approached his task was a tacit recognition of the fact that the evidence did not all point in a single direction. It was not however suggested in this Court that there was no evidence capable of supporting a verdict in her favour. The burden of Ms Allen’s submissions was that it was not possible to discern a rational or logical process of reasoning from the available evidence to a decision in favour of Ms Robbie.

25. [39]

    Tellingly in my opinion, Ms Allen conceded in cross-examination that if she had seen Ms Robbie start to cross during her turn she would have stopped her vehicle. It is clear that Ms Robbie did start to cross during Ms Allen’s turn but Ms Allen did not stop. It is implicit in his Honour’s reasoning that he concluded that Ms Allen should have seen Ms Robbie and should have stopped. It is equally clear that his Honour was entitled to conclude that Ms Allen was at fault in the circumstances.

Ground 3 – error in application of legal principles

1. [40]

   Ms Allen contended that his Honour misapplied s 5B of the Civil Liability Act because he directed his consideration of the provision not to the question of breach of duty but to the question of the existence of a duty.

2. [41]

   Section 5B is in these terms:

3. [42]

   His Honour referred to the provision in the following terms:

4. [43]

   Ms Allen submitted that:

5. [44]

   Ms Allen also submitted that in considering the matters to be taken into account in determining whether a reasonable person would have taken precautions in accordance with s 5B(2):

6. [45]

   Ms Allen submitted that his Honour did not apply s 5B in that way. Rather, his Honour simply referred to the matters listed in s 5B(1) and suggested that Ms Allen could have “taken easy precautions against the eventuation of that risk by staying where she was, off the highway.” Ms Allen contended that that was a misapplication of s 5B and imposed an overly burdensome duty on the driver of a motor vehicle. Ms Allen contended that a reasonable person in her position would have behaved in precisely the manner in which she did. Ms Allen submitted that when she commenced her right hand turn and joined the highway it “is highly improbable” that Ms Robbie had entered upon the roadway.

7. [46]

   It seems to me with respect that these submissions cannot be correct. His Honour expressly accepted Ms Robbie’s account that she was out of her vehicle and standing by the road from where she observed Ms Allen’s vehicle in the driveway. It is also apparent from his Honour’s reasons and reasoning process that he accepted that Ms Allen left the driveway at much the same time that Ms Robbie commenced to cross the road. The underpinning proposition of Ms Allen’s submissions is that Ms Robbie was instead still either in her car or at the very least standing in a stationary position beside the road. It is also an essential part of Ms Allen’s attack upon the judgment that Ms Robbie did not commence to walk from the side of the road until at least Ms Allen was level with her and in that sense that Ms Robbie walked into the side of her passing vehicle.

8. [47]

   I have no difficulty with the proposition that a motorist would not be required to stop or take any other evasive or precautionary action against the contingency that a stationary pedestrian beside the road might enter it. However, a proper reading of his Honour’s judgment makes it clear that he considered that Ms Robbie was not stationary beside the road but had entered onto it and was in the course of walking on the road surface. As already discussed, that is clear from the available inference that both women simultaneously took advantage of the same break in the northbound traffic to make their move. Ms Robbie had walked as far into the roadway as she could get in the time it took Ms Allen to drive to the same point.

9. [48]

   This is not a case of Ms Allen being entitled to ignore a stationary pedestrian beside the road but a case of her having a duty not to strike a pedestrian in her path or moving in a direction that would bring her into collision with the side of her vehicle when as the driver she had time to see her and to stop. It is clear that his Honour rejected the finding that Ms Robbie was either in her car or stationary beside the road. More importantly, it is also clear that his Honour concluded that when Ms Robbie entered onto the roadway it was clear of traffic until Ms Allen’s “vehicle suddenly appeared on the roadway where a reasonable person would not have expected it to be.” Once that is appreciated Ms Allen’s criticisms of his Honour’s approach to s 5B necessarily fall away.

10. [49]

    His Honour dealt in part with the issue of contributory negligence in the following terms:

11. [50]

    Ms Allen relied upon what Mr Keramidas said in his report, that the accident could have been avoided completely had Ms Robbie taken the simple and easy precaution of looking for northbound traffic before stepping onto the northbound carriageway and, having seen Ms Allen, remained stationary or stepped backwards from the road. Apart from appearing to be an attempt to breathe some life into the long dead corpse of the last opportunity rule, the submission is based entirely upon a misconception of the evidence. I entirely reject Ms Allen’s (curiously phrased) submission that “[t]here was no evidence that [Ms Allen’s] vehicle was not already on the highway when [Ms Robbie] commenced walking onto the road.” His Honour specifically found that when Ms Robbie stepped onto the roadway “Ms Allen’s vehicle … at that time was not even on the highway.”

12. [51]

    Once again the nature of his Honour’s conclusions provides the answer. Ms Robbie was on the roadway where she was struck by Ms Allen who drove onto it shortly thereafter but failed to see Ms Robbie until the last second. Ms Robbie was entitled to be on the road and was in motion in an easterly direction. She did not contribute to her own harm. His Honour’s conclusion to that effect is unexceptionable.

13. [52]

    Nor is the position different if Ms Allen’s turn indicator was activated. That would no doubt have informed Ms Robbie that Ms Allen was intending to turn to her right and in Ms Robbie’s direction. At the point when Ms Robbie stepped from the side of the road, the prospect that Ms Allen might turn in her direction does not foreclose Ms Robbie’s entitlement to do what she did. Ms Robbie’s presence on the roadway undoubtedly contributed in a causative sense to what happened to her but she was not negligent in not having remained beside the road simply because Ms Allen’s turn indicator presaged her intention.

14. [53]

    Ms Allen’s submissions on this issue are a restatement of her complaints based upon the proposition that she could not have been negligent if Ms Robbie was stationary at the side of the road when Ms Allen left the driveway. It will be apparent that I do not accept that his Honour found any such thing, and in fact proceeded upon the basis that Ms Robbie was in the course of walking eastwards on the road surface of the northbound lane when she was struck. No reformulation of Ms Allen’s complaints in the language of causation does anything to advance her position.

15. [54]

    Although Ms Allen made lengthy submissions concerning the question of whether or not this was a blameless accident within the meaning of s 7 of the Motor Accidents Compensation Act 1999, that issue was ultimately not pressed.

Ground 4 – erroneous assessment of economic loss

1. [55]

   Ms Allen contended that his Honour erred in rejecting the report of Lance Kahler dated 28 April 2014.

2. [56]

   Mr Kahler is a certified practising accountant and was retained by Ms Allen to express an opinion concerning Ms Robbie’s claim for economic loss. That claim was based upon the assertion that at the time of the accident Ms Robbie was earning $180,000 per annum before deduction of expenses and tax.

3. [57]

   Ms Robbie is a licensed real estate agent and gave evidence that she had worked in the real estate business from 1989 until the date of the accident. The business that paid her was known as Real Estate Investors Network. It was sold in June 2010, about two months after the accident. Notwithstanding that fact, the proprietor of the business, Mr Downs, continued to pay Ms Robbie substantial amounts of money and that continued up until the hearing before his Honour. Ms Robbie and Mr Downs had formerly been in a domestic relationship.

4. [58]

   The business had been engaged in the sale of real estate for investment. Mr Kahler approached his task of assessing the value of Ms Robbie’s economic capacity by reference to the fact that she was a real estate agent. His Honour rejected Mr Kahler’s report after some evidence from him as follows:

5. [59]

   Ms Allen argued that his Honour’s rejection of the report was unwarranted and demonstrated error. Mr Kahler did not lack the requisite expertise to express an opinion, and his report was relevant to a fact in issue in the proceedings. His Honour’s error is said to have been compounded inasmuch as he accepted that Ms Robbie was earning $180,000 from Real Estate Investors Network at the time of the accident.

6. [60]

   Ms Allen submitted that his Honour’s approach to the assessment of both past and future economic loss was erroneous in that:

7. [61]

   In summary Ms Allen submitted that as a result of this erroneous approach to the assessment of economic loss the award of damages was manifestly excessive. Even if there were a loss of earning capacity caused by the accident, it is unlikely ever to have been productive of economic or financial loss of the order allowed by his Honour.

8. [62]

   Ms Robbie contended that there was evidence before his Honour that her pre-injury earnings were $180,000 per annum before tax in the years from 2004 to 2010. His Honour accepted that evidence. He did so upon the basis that he accepted that Ms Robbie was doing work that supported the salary she received:

9. [63]

   Ms Robbie’s loss of earnings to the date of the trial was also supported by post-accident tax returns. However, his Honour reduced Ms Robbie’s claim of $227,000 for past economic loss to a rounded sum of $160,000. He reduced the claim of $213,000 for future economic loss to a rounded sum of $130,000. In taking that approach his Honour considered all of the lay evidence and Ms Allen’s submissions before concluding that the claimed figures should be discounted in order to take into account likely variations in income even if Ms Robbie had remained in partnership with Mr Downs and had set up the new business that had been proposed.

10. [64]

    Ms Robbie also submitted that his Honour correctly rejected Mr Kahler’s report. He did not have the requisite expertise to express the opinions upon which his report was founded. Mr Kahler had little understanding of what Ms Robbie did in contrast to the listing and selling activities of real estate agents in general. Mr Kahler had not been asked to make assumptions about Ms Robbie’s activities or to express a view about whether or not the income she earned for the assumed work was justified.

11. [65]

    Ms Robbie submitted in the alternative that even if the report had been admitted into evidence it remained open to his Honour to have rejected Mr Kahler’s characterisation of what Ms Robbie’s work involved. Mr Kahler had no proper knowledge or understanding of her work or of how the real estate selling model adopted by Mr Downs and Ms Robbie operated in fact. Mr Kahler’s report could not have been given significant weight in any event.

12. [66]

    Mr Kahler was examined in advance of his Honour’s decision to exclude the report. He gave the following evidence:

13. [67]

    It is clear that, through no fault of his own, Mr Kahler had no special or particular knowledge or understanding of the enterprise in which Ms Robbie was engaged and which generated her income. Notwithstanding that fact, Mr Kahler had proffered the following opinion in his report:

14. [68]

    It is unsurprising that his Honour rejected the report. Mr Kahler’s opinion was based upon an unfounded assumption, amounting to speculation, that Ms Robbie was overpaid for the work she performed or, in other words, that it was not a reflection of her actual pre-injury earning capacity. His opinion, based on that assumption, was therefore that any comparison or estimation of her post-accident losses could not be based on what she had earned, even notwithstanding that Ms Robbie had declared the sum of $180,000 as income in the several years preceding the accident.

15. [69]

    Mr Kahler had neither the expertise to express his opinion nor any supporting evidence upon which to base it. He clearly did not satisfy the prerequisites for expressing an expert opinion as one drawn from specialised knowledge based upon his training, study or experience. His obvious expertise as an accountant was entirely beside the point. His Honour made no error by rejecting the report.

16. [70]

    His Honour closely analysed the evidence concerning the nature and extent of Ms Robbie’s injuries and disabilities following the accident. His conclusions were predicated upon the following findings:

17. [71]

    I am not satisfied that Ms Allen has demonstrated that his Honour made any error in his calculation of Ms Robbie’s economic loss. Ms Allen’s submission that his Honour’s assessment is manifestly excessive appears to be predicated upon the unfounded concern that her pre-accident earnings were not a genuine reflection of her earning capacity. That is the same unfounded and erroneous assumption that confounded Mr Kahler’s report and it would appear similarly to have infected Ms Allen’s submission. It was open to his Honour, recognising the discretionary nature of his task, and the artificiality of attempting to produce arithmetical or mathematical certainty in his calculations, to assess Ms Robbie’s loss by the adoption of a lump sum apparently reflecting her loss of earning capacity. Ms Allen has not suggested that his Honour acted upon a wrong principle or that he allowed extraneous or irrelevant matters to guide or affect him. Nor has it been suggested that his Honour has somehow mistaken the facts, or that he has either failed to take account of some material consideration or has taken account of an irrelevant matter.

18. [72]

    I am satisfied that his Honour was entitled to approach the question of Ms Robbie’s economic loss in the way that he has. He fell into no error in doing so.

Conclusion and orders

1. [73]

   It follows in my opinion that the appeal should be dismissed with costs.