Allen v King - [2004] NSWSC 834

No judgment structure available for this case.

CITATION: Allen v King [2004] NSWSC 834

HEARING DATE(S): 26-27, 29-30 July, 2-4 August 2004

JUDGMENT DATE:
10 September 2004

JURISDICTION:
Common Law Division

JUDGMENT OF: Studdert J

DECISION: (1) Verdict and judgment for the plaintiff against the defendant in the sum of $6,946,536.00. (2) On the defendant's cross claim, verdict and judgment for the cross defendant. (3) Costs on the plaintiff's claim and on the defendant's cross claim are reserved.

LEGISLATION CITED: Motor Accidents Act 1988, s 74

CASES CITED: Brodie v Singleton Shire Council (2001) 206 CLR 512
De Blieck v Fraser (unreported, NSWCA, 19 November 1980)
Lee v Burn (1998) 37 MVR 186
Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638
March v Stramare (E. & M.H.) Pty Limited (1991) 171 CLR 506
Medlin v State Government Insurance Commission (194-95) 182 CLR 1
Nicholson v Nicholson (1994) 35 NSWLR 308
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Sullivan v Gordon (1999) 47 NSWLR 319

PARTIES :
Peter Christopher Allen (Plaintiff)
Shannon King (Defendant)
Harden Shire Council (Cross Defendant)

FILE NUMBER(S): SC 20271/03

COUNSEL: P.R. Hennessy SC/E. Romaniuk (Plaintiff)
R. Bartlett SC/R. Weinstein (Defendant)
M. McCulloch (Cross Defendant)

SOLICITORS: Messrs Butler & Company - Lawyers (Plaintiff)
Sparke Helmore (Defendant)
Phillips Fox (Cross Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Friday 10 September 2004

20271/03 PETER CHRISTOPHER ALLEN v SHANNON KING
JUDGMENT

1 HIS HONOUR: The plaintiff, Peter Christopher Allen, brings these proceedings against the defendant, Shannon King, seeking to recover damages for injuries sustained in a motor vehicle accident that occurred on 6 February 1999. The plaintiff was travelling as a front seat passenger in a vehicle being driven by the defendant when that vehicle left the road and overturned. Tragically, the plaintiff sustained spinal injury and has been rendered quadriplegic.

2 The defendant denies negligence and has pleaded contributory negligence in the failure of the plaintiff to wear a seatbelt.

3 The defendant has also pursued a cross claim against the Harden Shire Council. It is alleged that the cross defendant was negligent in the failure to alert road users by appropriate signage to the hazards of the curve where the accident occurred and as to the need to restrict speed in order to negotiate the bend. It is also alleged that the cross-defendant was negligent in failing to remove the earth embankment located at the accident site.

The issue of liability

4 The accident happened on the afternoon of 6 February 1999 on the Back Jugiong Road. This is a dirt road used principally for access to a number of grazing properties, and it links up with a sealed road that runs between Jugiong and Harden.

5 The plaintiff was unable to give any account of the accident. He said that on the day of the accident he accompanied friends to the river at Jugiong to go for a swim. After that he remembers leaving with the defendant and, whilst he has no recollection of going to a hotel, his last recollection was stepping off the veranda of the hotel to put his hand on a car door. His next recollection then was waking up in hospital in Sydney at a time when a nurse was removing a tube from his throat.

6 So it is that the plaintiff is unable to assist his case on the issue of liability. I accept that the plaintiff was being truthful in his evidence that he has no recollection of the accident.

7 Constable Rowley attended the accident scene in response to a telephone message and he found a utility lying on its passenger side facing generally south but off the western side of the road. The plaintiff was found lying on his back a short distance from the utility.

8 Constable Rowley took photographs of the scene after the plaintiff had been taken from the accident site by ambulance, and those photographs became part of Exhibit A. Many other photographs were later introduced into evidence, and I shall refer to them when considering the cross claim. However, at this point I propose to record a general description of the accident scene and, for the northbound motorist, of the road leading to it.

9 Access at the southern end of the Back Jugiong Road is from the main sealed road between Jugiong and Harden at a point approximately one kilometre from Jugiong. The accident occurred approximately five kilometres north of that entry point. As previously mentioned, the road is unsealed and Constable Rowley described it as “a single lane dirt road”. It is located in a derestricted area, so the speed limit is 100 kph. There are no advisory speed signs or any other roadside signs between the southern end of the road and the point where the accident occurred. Proceeding from the southern end of the road, the northbound motorist crossed a cattle grid about three and a half kilometres from that entry point. It is unnecessary to describe the course of the road before the upgrade that led to a crest approximately 100 metres south of the point where there is a cattle grid across the road, flanked by concrete buttresses. Between the crest and the grid there is a gentle downgrade in the road and that continues into the curve below. There are two tall poplar trees, one outside each grid-side buttress. The tops of these two trees are visible before the northbound motorist reaches the crest. Immediately north of the grid there is a sharp right hand bend with a radius of approximately sixty metres and beside the western edge of the road along that curve (treating the road as still proceeding north at this point) there is a low earth embankment.

10 On attending the accident scene Constable Rowley found marks on the roadway that indicated that the utility crossed to its incorrect side of the road to its very edge before then changing direction and crossing to the other side of the road to a point where the vehicle faced approximately 120° to its former path of travel. The front off-side wheel hit the bank on the western side of the road and the vehicle overturned and proceeded on to come to rest some eight metres off the road. According to Constable Rowley, his observations led him to conclude that the vehicle rolled two and a half times, but there is other evidence that leads me to find that the vehicle completed three-quarters of one turn (see the evidence of Mr Griffiths at T 99). Constable Rowley said that the distance between the grid and the point where the vehicle went to the eastern side of the road was seventy-three metres. The distance then travelled as the vehicle oversteered to strike the embankment on the western side of the road was a further fifteen metres.

11 Constable Rowley interviewed the defendant at the scene of the accident, and the defendant said this:

“I was returning to Harden after going for a swim at Jugiong, it was about 3.30 pm but I’m not real sure and I was just going about 70, but I can’t be 100% sure. I came over the grid too fast and went to turn and lost control, the ute then hit the embankment and rolled about 3 or 4 times. I had my seat belt on but Pete didn’t. After we stopped rolling I seen Pete wasn’t in the car, so I called his name out and looked for him. This is the first time I have been on this road.”

12 Constable Rowley interviewed the defendant again on 25 February 1999. He described what happened in these terms:

“I come up over the hill from Jugiong and I went over the ramp came on the corner a bit too quick and she veered to the right sideways on the dirt and then went to the left and hit the embankment and the right hand side front tyre blew out and then rolled over.”

13 Constable Rowley asked the defendant some questions about his speed:

“Roughly what speed um where you travelling at prior to the collision?

Between sixty and seventy, around seventy.

How do you know you were travelling about that fast?

I don’t, to be truthful with you.

So when was the last time you had looked at your speedometer?

That was on the way down on the highway.

So you didn’t prior to the accident once leaving Jugiong you hadn’t actually, noted, looked at your speedometer that you remember?

No.”

14 The defendant gave evidence, and I assessed him as being an honest witness who responded frankly to the questions he was asked. He was a friend of the plaintiff and on the day of the accident had been swimming in the river at Jugiong with the plaintiff and other friends. Others in the group, including the plaintiff, had alcohol. After they left the river, the defendant drove the plaintiff to the Jugiong hotel and there the plaintiff was drinking beer. The defendant only had Diet Coke.

15 Having left the hotel the defendant set off for Harden, taking the Back Jugiong Road. He had not travelled on that particular section of this road before. He described the journey on the dirt surface of the road, recalling that the road took him up a “pretty steep hill”. He said he observed the cattle ramp and slowed down, taking his foot off the accelerator. Before doing so he was travelling at “roughly seventy kilometres per hour”. He said he slowed down to “roughly sixty, sixty-five”. The defendant described the accident in the following responses to the following questions (T77-78):

“Q. Now then what happened?
A. I went over the cattle ramp, and there was a slight bend to the right so I - yeah, went over a bit too quick and she - the vehicle slid that way (indicates) so I--

Q. When you say ‘that way’ you're indicating in the witness box out to your left?
A. Yes, to the left. I tried correcting it and I went back to the right, slid to the right, I went into the embankment and the front right tyre rolled off the rim. That's when it rolled over.

Q. At the time that this vehicle was sliding, did you have your foot on the brake or what?
A. No.

Q. So you were trying to direct it out were you?
A. Yes, I was trying to correct it.

16 The defendant said that after the accident he observed the plaintiff lying on the ground behind the vehicle some ten to fifteen metres away. Unlike the plaintiff, the defendant remained in the vehicle at the time when it came to rest and he explained that at that time he still had his seatbelt on. He released the seatbelt and climbed through the window to go to the plaintiff, with whom he then remained until help arrived.

17 In cross examination he acknowledged that he had not told the police officer following the accident that he had slowed down but, in any event, he acknowledged that he was travelling too fast in the circumstances (T 83):

“Q. Would you describe 70 K's on this road very fast?
A. Yes, I would describe on the road, yes.

Q. But you did cross the grid at about 70 K's?
A. Between 60 and 70, yes, but 70.

Q. Well, would you describe that as very fast?
A. That sort of road I would describe it as, yes.

Q. So what you do know is that you negotiated the grid and travelled beyond the grid very fast?
A. All too fast for the grid, I would yes.

Q. And you lost control?
A. Yes.

18 The defendant was cross examined on photos annexed to the statement of Mr North, (Exhibit 5), and in particular on the photograph showing the view from a point some 72 metres from the grid (T 93-94):

“Q. I'm showing you some photographs which are part of a report of Mr North's and you don't need to worry about the name for now. Have regard to photograph 108?
A. Yeah. Right.

Q. Will you agree that that photograph shows the view which was available to you at a distance of a little over 72 metres from the cattle grid?
A. The view that shows the cattle grid. Is that what you are saying?

Q. Will you agree that the photograph 108 shows the view which was available to you as the driver on the day of the accident, of the cattle grid from about 72 metres before the cattle grid?
A. Yes.

Q. So when you said in your evidence that at some point you noticed the cattle grid --
A. Right.

Q. -- would it be fair to say it was about 70 metres?
A. Yes.

Q. Do you say that as soon as you noticed the cattle grid, you took your foot off the accelerator?
A. Yes.

Q. I take it to that point you had been accelerating?
A. Yes.

Q. Is that correct?
A. Yes.

Q. You had accelerated up the hill and over the crest. Is that correct?
A. I can't remember the way the road went but I remember accelerating up the hill, yes.
Q. Would you agree that the view you had, as shown in photograph 108 indicated the road went off to the right hand side?
A. In the photos it does, yes…

McCULLOCH: Q. Going back to photograph 108, do you agree that that photograph depicts the layout of the road as it appeared in February 1999?
A. As it appeared in February 1999?

Q. Yes?
A. I'm unsure of that. Sorry.

Q. What do you say to your recollection looks any different?
A. Nothing.

Q. Having given that answer, will you not agree that from a distance of about 70 metres from the cattle grid, it was quite apparent that the road went to the right immediately after the cattle grid?
A. In this photo, yes.

Q. Will you agree that that was the situation, that is, that you could see that the road went over to the right immediately after the cattle grid from about 70 metres away?
A. Yes.

19 I shall return to a consideration of the photos taken by Mr North and by the other experts when considering the cross claim. For the present, I observe, having assessed the photographic material and the evidence given by the defendant, that I am satisfied that the exercise of due care required of the defendant that he slow down before he reached the grid, particularly having regard to the approaching bend. I am satisfied that had the defendant been keeping a proper lookout he would have been alert to the deviation in the road beyond the grid from as far back as 70 metres south of the grid. There is no suggestion that the terrain in the relevant area changed between the date of the accident and the date that the various photos to which I have referred were taken, and, indeed, the defendant did not suggest in cross examination that there had been any changes. That the defendant did not appreciate before he reached the grid that there was a bend in the road beyond it, reflects that he failed to keep a proper lookout.

20 I find then that the defendant was negligent in the following respects:

(i) in travelling at a speed which was excessive in the circumstances;

21 I am satisfied that the defendant’s negligence was causative of the accident in that it led to his losing control of the vehicle.

Contributory negligence

22 The defendant has raised the issue of contributory negligence, alleging that the plaintiff was not wearing a seatbelt.

23 The defendant gave evidence that his utility was fitted with seatbelts and I accept that this was the fact. The defendant’s evidence satisfies me that there was a seatbelt available to the plaintiff. The defendant told Constable Rowley that the plaintiff was not wearing a seatbelt and it emerged from his evidence that this was the defendant’s conclusion by reason of the fact that the plaintiff was ejected from the utility before it came to rest (T 81). I consider that conclusion to have been well founded.

24 Two expert witnesses were called in this case: Dr Henderson was called by the plaintiff and Mr Griffiths was called by the defendant. Both experts were in agreement that the plaintiff could not have been wearing a seatbelt. They agreed that he must have vacated the vehicle at a fairly early point in time when the vehicle was rolling over. Dr Henderson gave this response to this question (T 40):

25 To the like effect, Mr Griffiths (T 98-99).

26 I find that the passenger seatbelt was in working order.

27 So far as the defendant was concerned, it was his evidence, and I accept it, that he believed the seatbelt was in good working order (T 73). The vehicle was repaired after the accident, but no repairs were made to the seatbelt, and no problems were experienced with its use subsequent to the accident (T 96).

28 I am satisfied on the evidence that the plaintiff was not wearing a seatbelt at the time of his accident. I am also satisfied that his failure to do so amounted to a failure to exercise reasonable care for his own safety.

29 An issue has however arisen in this case as to whether had he been wearing a seatbelt the plaintiff would have avoided the severe cervical injury which has rendered him tetraplegic. This is an issue upon which the experts disagree.

30 Dr Henderson was called in the plaintiff’s case. Dr Henderson is a Bachelor of Medicine who has been involved in traffic safety research and injury causation and control for over thirty years. His curriculum vitae became Exhibit B and was not the subject of challenge.

31 Dr Henderson, in his first report dated 4 May 2001, concluded that the plaintiff sustained his spinal injuries whilst still in the motor vehicle, but after considering Mr Griffiths’ reasons for concluding otherwise revised his own view and concluded that the plaintiff was not injured before he left the vehicle but after ejection. Dr Henderson said (T 39):

“A. I think Mr Griffiths quite correctly pointed out that if as I suggested, the injury was sustained while he was still in the vehicle, then he could not have been ejected in such a way as to have landed on the far side of the vehicle, because the vehicle only continued rolling about a quarter of a turn and that would not have sufficiently ejected him. Having considered that, I agreed with Mr Griffiths in that regard.

Q. On the assumption that where he was found (and you can take it as some considerable time after where he, in fact landed after this accident had finished) then you agree with Mr Griffiths that he must have vacated the vehicle at a fairly early point in time in the roll-over process?
A. That's correct, on the assumption that he was found as depicted in the diagrams which I and Mr Griffiths reviewed.

Q. As to when he sustained his injury, in fact in this event, did you have a view as to when that probably occurred?
A. I think it is most probable that he sustained his injury when he landed on the ground.

Q. Indeed, you acknowledge those matters I think in your second report from the outset and over the first couple of pages. Is that so?
A. Yes, that's correct.

HIS HONOUR: Q. Do you conclude from where he landed on the ground, that he had not been wearing a seat belt in the course of the journey?
A. I think that's a very likely conclusion your Honour.

HENNESSY: Q. In your experience?
A. That's right.

32 In his first report Dr Henderson opined that the plaintiff would have suffered the same injury whether he had been wearing a seatbelt or not. He remained of that opinion after reversing his opinion as to when the spinal injury was sustained.

33 Dr Henderson and Mr Griffiths were in agreement that the vehicle did not complete a full 360° roll before it came to rest on the passenger side.

34 In the view of Dr Henderson comparatively minor force was applied to the driver’s side door and roof and significantly greater force to the passenger side roof (T 31). Dr Henderson considered that had the plaintiff remained restrained within the vehicle his seatbelt would probably not have prevented his head at least from coming into contact with the roof whether the roof was crushed or not.

35 In Dr Henderson’s view, before the vehicle rolled and whilst the plaintiff was seated upright in his seat his head clearance would have been approximately 60 mm (T 33). In Dr Henderson’s opinion what occurred after control of the vehicle was lost and before it came to rest would have occasioned the seatbelt webbing to stretch. Dr Henderson gave the following evidence (T 33-34):

“…you in your report, tell us that that movement as your research would tell us is that initially in the roll-over event, the occupant on the passenger side will tend to move to the right and in that sense independent of the vehicle. And in that movement to the right, there maybe an extension or a loosening of the seat belt beyond its normal position. Is that so?
A. Yes. If I can answer it in a little more detail.

36 Added to this in Dr Henderson’s view was the factor of the roof distortion invading the passenger side space (T 34).

37 Dr Henderson had earlier written on 24 June 2004 (at p 15 of his report):

“It is generally acknowledged that in a rollover, human necks can be loaded beyond spinal cord injury tolerance in the absence of roof crush… The nature of the loading is a short sharp shock of high magnitude.

has

introduces

It is highly likely that both factors would have been influential in the case of Peter Allen: he probably would have first contacted the uncrushed roof, and his neck would then have been further exposed to compression by the crushing of the roof.”

38 Dr Henderson was dismissive of statistics upon which Mr Griffiths relied, stating in the same report (at p 17):

“First, while spinal cord injuries may be rare events among all road crashes, this is irrelevant to the particular case of Mr Allen’s crash. In any event, in the statistics sense Mr Allen would have been at particular risk if restrained in position because:

• he was riding in a four-wheel drive vehicle exceptionally prone to rollover;

• he was seated in the position away from the leading side of the roll, which gave rise to higher dynamic loads than those experienced by the driver;

• the roof was crushed and intruded into the passenger-side head space, which did not happen over the driver’s head.”

39 Dr Henderson gave evidence (T 45) that the degree of likelihood that the plaintiff would have sustained the same injuries had he been wearing a seatbelt was “in the order of eighty percent”. He said the mechanism of injury was the same “whether [the plaintiff] had compression and flexion of his neck when he hit the ground, or whether he compressed and flexed his neck as a result of the landing of the vehicle in an inverted position” (T 44).

40 Mr Griffiths was called by the defendant. Mr Griffiths is an engineer whose expertise in relation to the evidence he gave was unchallenged. He has had twenty-five years experience in road safety research. Consideration of Mr Griffiths’ report of 3 February 2004 in which the author concluded that the plaintiff was ejected from the vehicle before it rolled on to its roof influenced Dr Henderson to reverse his view as to when the relevant injury was sustained. Mr Griffiths wrote (at pp 25-26 of that same report):

“There is a possibility that he would still have sustained some injury if he had been wearing a seatbelt, however, the wearing of a seatbelt, on its own, would have changed the forces on the occupant, consequently changing his internal movements and resultant impacts with the vehicle interior. Because he was coupled to the vehicle by the seatbelt he would have tended to follow its rolling motion and have less relatively velocity compared to the vehicle interior. Road safety research statistics show that the prospects of spinal injury in a rollover crash, particularly for restrained occupants are very low.”

41 In concluding that report, Mr Griffiths wrote:

“Because there was some roof intrusion into the left front occupant’s space during the rollover there was a small possibility of a restrained left front passenger receiving an injury of similar severity. Nevertheless, as discussed earlier here, road safety research shows that cervical spinal cord injuries are very rare events, and that wearing a seatbelt and remaining with a vehicle greatly reduces the probability of receiving a spinal cord injury.

For all the reasons described earlier in this report, the wearing of a seatbelt in this particular incident would have changed the direction and severity of the impacts forces applied to a left front occupants head so that there was a much smaller probability of sustaining a cervical spinal cord injury resulting in partial paralysis.”

42 Mr Griffiths considered the plaintiff would have been thrown through the windscreen in the first third of the roll because there was no later opportunity for this to occur (T 100). I accept that evidence.

43 In his report dated 25 July 2004 Mr Griffiths further addressed the chances of the plaintiff having sustained the same injuries had he been wearing a seatbelt (pp 6-7):

“The issue under review here is whether an unrestrained occupant who is ejected from a vehicle early in the rollover sequence has the same probability of receiving SCI [spinal cord injury] as a hypothetical restrained occupant who has some roof crush adjacent to their head space late in the rollover incident.

The factors which show that the probability of SCI in the hypothetical situation was less than the actual situation are:-

- this was a low energy crash, only three quarters of a roll

- the hypothetical time when a restrained occupant might have been exposed to forces which could lead to serious injury were later in the crash when the vehicle’s energy had been approximately halved compared to the time of ejection

- the roof damage is more indicative of a strong sideways component. A sideways component could have tended to deflect the head away rather than crush vertically.

- the depth of roof crush, as observed in the photographs, appears less than the critical depths of roof crush for serious injury as referenced in the Henderson and Pain report on roof strength requirements.

this

Earlier statistical data and deductions referenced in this report indicate the low statistical probability of receiving SCI in a motor vehicle crash with rollover.

The statistical data would indicate a probability in the order of less than 1% where rollover occurs.

Allowing a conservative doubling of risk factors for being a far side occupant under an area of roof crush, the overall probability of receiving SCI would appear to be safely less than 10%, and possibly significantly less.”

44 Mr Griffiths said further as to this in evidence (T 103):

“The available energy and velocity for the hypothetical case is later in the sequence when the vehicle has completed more of its roll, over or about two-thirds of a roll, and that the energy at that time is lower so if we, say, looked at it in terms of, say, velocity and, say, we hypothesise that the velocity of the vehicle; the sideways velocity of the vehicle at the time that it tripped and rolled over, because of fishtailing manoeuvres, say, it had been reduced to 30 kilometres per hour and we know at the end of the event that the velocity of the vehicle was zero so during the roll over process the vehicle is having contact with the ground and progressively slowing down and, in fairly simple or over simplified terms, perhaps, if we use those speeds we would say, "Well, he was thrown out when the vehicle had a general velocity of, say, 20 kilometres per hour and that's the actual event and the hypothetical ways which later on which go outside that same simplification would be, the velocity of the vehicle would be, say, 10 kilometres per hour so energy - or the force diametrically is basically a factor of velocity squared so using this simple comparison; the squaring the velocity of 20 would be, say, 400. Squaring the velocity of 10 kilometres per hour later on in the event would be 100 so in fact the amount of energy would be, in simple terms, around four times that available when he was thrown out compared to the hypothetical event so I'm saying, and that's fairly rough and it's an over simplification but if you use the general concept that we do know, which is the vehicle starts with a certain velocity and ends up with zero we can compare the sort of energy that's available to cause the injury. But that's one thing.

The other thing is that the movements inside the vehicle of the person are going to be different. If they're sitting there with a seat belt on compared to the fact we know what's happened to eject, that they're thrown outside the vehicle and the impact that causes the injury is either on the way out of the vehicle or when they come into contact with the ground but if they're seated inside the vehicle they're restrained by the seat belt.

45 Mr Griffiths had not applied his mind to the clearance there would have been between the plaintiff’s head and the roof of the utility (undamaged), but unlike Dr Henderson he thought the clearance would have been of the order of 100 mm (T 104).

46 A further factor that Mr Griffiths did take into account in assessing the risk to the plaintiff had he been wearing a seatbelt was the nature of the injury. There was, according to medical notes that he read, no complete transsection of the spinal cord and he reasoned from this that had the plaintiff been exposed to forces upon his spine in the car at a later stage the force was likely to be less than that to which he was in fact exposed and hence the risk of quadriplegia would have been reduced.

47 The photos of the vehicle after the accident show the extent of the damage to it. The roof was depressed significantly on the passenger side. However, there is a roll bar behind the cabin. Mr Griffiths opined (T 107) that the damage indicated sideways force:

“It tells me that the force had a primarily sideways component rather than a vertical downwards component.”

48 In cross examination of Mr Griffiths, it was made clear that the extent of the roof damage did not indicate the level of energy when the movement of the vehicle was arrested (T 110-112). The roll bar and the cargo barrier may well have prevented roof damage from downward force. Mr Griffiths agreed (T 113) that both sideways and downwards forces were significant, and further damage appears only to have been prevented by the roll bar. Mr Griffiths also agreed (T 117) that one of the peaks at which energy was expended in the rollover was when the roof damage was occasioned.

49 The above review of the evidence of Dr Henderson and Mr Griffiths only emphasizes the extent to which these two experts disagree upon what the plaintiff’s prospects of sustaining the same injury would have been had he remained within the utility wearing his seatbelt until such time as the vehicle came to rest in its upturned position.

50 It seems to me that extreme caution is called for in the use of statistics when seeking to determine what the plaintiff’s prospects of sustaining the same injury would have been. In my opinion, Dr Henderson was correct in what he said about the use of statistics in the passage from his report I referred to earlier (para 38). This is not a situation in which the plaintiff’s prospects of spinal injury in the hypothetical situation can be measured with mathematical certainty. However, reflecting on the competing evidence, Mr Griffiths’ evidence does not persuade me that the risk would have been as low as ten percent. I am not satisfied, having reflected upon the answers given in cross examination, that in making that assessment Mr Griffiths made due allowance for the downward force to which the roof of the vehicle was subjected when the utility landed on its roof. In addition, I consider that his conclusion is influenced by too great a regard to statistics. I therefore prefer the evidence of Dr Henderson, although I make no positive finding that the plaintiff’s chances of having the same injury had he remained restrained in the vehicle, would have been as high as eighty percent. Ultimately, I find myself in the position, after weighing the competing expert evidence, that the defendant has not persuaded me that the plaintiff’s injuries were more serious by reason of his failure to wear the seatbelt than had he remained restrained by it until the vehicle came to rest.

51 What follows from this?

52 The defendant has failed to prove on the balance of probabilities that the plaintiff’s injuries and damage are greater by reason of his failure to wear a seatbelt. On the application of common law principles, it would follow that the defence of contributory negligence would fail: see De Blieck v Fraser (unreported, NSWCA, 19 November 1980); Nicholson v Nicholson (1994) 35 NSWLR 308; and Lee v Burn (1998) 37 MVR 186.

53 However, because the Motor Accidents Act 1988 here applies the operation of s 74 of that Act is enlivened. It suffices for present purposes to refer to sub-ss (1), (2), (3) and (4):

“(1) The common law and enacted law as to contributory negligence apply to claims in respect of motor accidents, except as provided by this section.

(2) A finding of contributory negligence shall be made in the following cases:

………

Motor Traffic Regulations 1935,

………

(3) The damages recoverable in respect of the motor accident shall be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

(4) The court must state its reasons for determining the particular percentage.”

54 The operation of s 74 was considered by the Court of Appeal in Nicholson v Nicholson (supra). In that case the plaintiff was not wearing a seatbelt but was lying on the back seat. The trial judge found that this failure did not contribute to the extent of the injuries suffered (see the judgment of Kirby P at 317). Moreover, the trial judge found that the failure to wear a seatbelt was reasonable in the circumstances of the case. Nevertheless, the trial judge felt compelled by the language of s 74(3) to make some reduction in the damages to be awarded and proceeded to reduce the assessment by one percent. That decision was disturbed on appeal.

55 In his judgment, with which Meagher JA agreed, Kirby P determined that s 74 did not disturb the common law on the issue of onus of establishing the elements of contributory negligence. The President said, at p 315:

“Section 74 of the Act is silent on the issue of the onus of establishing the elements of contributory negligence. The section merely prescribes the circumstances in which a finding of contributory negligence shall be made. It is possible to infer from this that the legislature had no intention of disturbing the common law on the issue of onus. This construction is strengthened by the terms of s 74(2) of the Act which expressly reverses the onus in blood alcohol cases. I would reject the submission that her Honour erred in deciding that the onus remained with the defendant under s 74. In my view Mathews J was right. Had parliament intended to change the settled law as to the onus of proof relevant to contributory negligence, it would have said so expressly.”

56 The President proceeded to determine the trial judge was correct in comparing the plaintiff’s actual injuries with the injuries he would have sustained had he been wearing a seatbelt in the front passenger seat. In this context the President referred to the decision in De Blieck v Fraser and to the approach to apportionment addressed in Podrebersek v Australian Iron and Steel Pty Ltd:

“In De Blieck v Fraser (Court of Appeal, 19 November 1980, unreported), Hope JA explained that contributory negligence involves some act or omission which has a relation to the plaintiff's damage itself and not to the act which may have caused the damage. The onus is upon the defendant to prove, on the balance of probabilities, that the plaintiff's injuries and damage are greater as a result of the plaintiff's failure to use a seat belt. In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; 59 ALR 529 at 532-533, the High Court of Australia said that:

‘The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.’

Keeping these principles in mind, I am of the opinion that Mathews J's comparison is the only logical one in the circumstances.”

57 The President proceeded to reject the proposition that s 74 compelled a reduction in damages. At p 317 Kirby P said:

“If the cross-respondent's failure to wear a seat belt was not unreasonable, and did not contribute at all to his injuries, it is understandable, and indeed logical, that his damages should not be reduced. But does s 74(2)(b) of the Motor Accidents Act preclude this interpretation? Failure to wear a seat belt automatically attracts a finding of contributory negligence. Section 74(3) of the Act says that the damages awarded shall be reduced. This could be a manifestation of the implementation of parliament's overall purpose that all motorists be restrained by seat belts while riding in motor vehicles with the relevant penalty for failure to do so being a reduction in any damages recoverable in the event of a motor vehicle accident. Yet, it would seem to be illogical to adopt a construction of the Act which would prevent a court from refraining from reducing a plaintiff's damages, even if it were the ‘just and equitable’ course to adopt in the peculiar circumstances of the particular facts. That would defy the explicit injunction to the court to perform the reductions but only according to what was ‘just and equitable’.

Although the appellant's actions did not contribute to his injuries, s 74 of the Motor Accidents Act appears to be mandatory that some ‘reduction’ is, at least ordinarily, required. In Pring v Hooper (McInerney J, 10 March 1993, unreported), McInerney J solved this quandary by holding: ‘I infer from [s 74] that I am obliged to apportion damages and in the circumstances I apportion 99% against the defendant and 1% against the plaintiff’…

Section 74(3)…is qualified by the phrase ‘just and equitable in the circumstances of the case’. This phrase, with its familiar instruction to a court of justice, provides the key to the construction of the section. By virtue of that statutory phrase it would be open to a court to reduce the damages otherwise recoverable by zero per cent if that would be the only way to achieve a ‘just and equitable’ result in the circumstances of the case…

I do not believe that it was parliament's purpose by the language used in s 74(3) of the Act to produce a logically inconsistent result. It is open to a trial judge to reduce a plaintiff's damages by zero per cent if it would not be ‘just and equitable in the circumstances’ of the case to do otherwise and if that were the only way to produce a "just and equitable" result. In this case, her Honour should not have felt compelled to reduce the cross-respondent's damages by a nominal 1 per cent. The law should discourage such charades which bring it into disrepute…”

58 Mahoney JA, in a separate judgment, instanced examples of harm suffered by a passenger in circumstances where such harm had nothing to do with the failure to wear a seatbelt (see his Honour’s judgment at pp 332-334). His Honour concluded, at p 334:

“I see no reason why, within s 74, a plaintiff should not recover the whole of the loss suffered if the failure to wear a seatbelt contributed nothing to the accident or the loss suffered.”

59 I return to the present case to address the task required of me pursuant to s 74(3).

60 I have found that the defendant was negligent in the circumstances leading up to the loss of control of the vehicle and to its rolling over. The plaintiff was thrown out of the vehicle during the rollover, sustaining the injuries which caused his ongoing disabilities.

61 The defendant has failed to prove that the plaintiff would not have sustained those same injuries had he remained restrained by a seatbelt in the vehicle until it came to rest. Moreover, the defendant acknowledged that he did not check to see whether the plaintiff had the seatbelt securely in place for the purposes of the journey. By reason of the trauma sustained, the plaintiff has no recollection of the journey up to where the accident occurred, and hence has been unable to account for his failure to wear a seatbelt. I am therefore unable to determine whether there was a reasonable explanation for that failure.

62 Because of the failure of the defendant to establish that the plaintiff’s injury and damage were greater as a result of the plaintiff’s failure to wear a seatbelt, and having regard to the circumstances reviewed, I consider it to be just and equitable that the damages otherwise recoverable should be reduced by 0%.

The cross claim

63 The defendant called two engineers, Mr Jamieson and Mr Milner. The relevant expertise of neither of these witnesses was challenged and I accept each witness to have been qualified to give the evidence that he gave.

64 Mr Jamieson inspected the accident scene in what he described as “fine, daylight conditions” on 3 June 2002. Having made his inspection, he identified three features which, in his view, called for signposting:

“(a) the expected free speed of vehicles using this road (up to 80 kph);

(b) the general geometry of the curve (producing a slide-off speed probably in the 60s); and

(c) the expected slide-off speed due to the cattle grid – probably in the 40s.”

65 Mr Jamieson concluded his report of 6 June 2002:

“It is considered that this site was…a trap. It is considered that appropriate signposting for such a curve beyond a cattle grid should have featured some highlighting elements such as a 35 kph curve right sign and/or special cattle grid warning signs with a supplementary Reduce Speed sign.”

66 In evidence (T 183) Mr Jamieson said:

“Q. I am assuming, first of all, from the evidence you gave beforehand, you say that you can first see some semblance of the grid 100 metres away from the grid and that you cannot readily appreciate that there is a corner until some time after 50 metres away?
A. Yes.

Q. So, between the 100 metres distance south of the grid and the 50 metres south of the grid, that is, you would expect the motorist to slow down to what extent?
A. Well, the free speed or the speed environment of that road I seem to recall was - just let me refer to my report. Just a moment. I cannot recall the exact range I quoted.

Q. I think you said 60 to 80.
A. Up to 80. 60 to 80, yes. Well, if hypothetically a vehicle was travelling at 70km per hour and they took their foot off the accelerator when the grid first becomes evident, the fence and the wings, for my expectation a driver would not apply the brakes so they would slow down to a speed of 70, 60, of that order. That makes the assumption the road goes straight ahead.

Q. Now, if, and assuming this to be the case, in accordance with your observations the road then becomes -the acute corner becomes apparent at somewhere less than 50, say about 40 metres away. If you are travelling and the speed is something like 60km per hour, you would be travelling at something like 17 or 18 metres each second?
A. That is right.

Q. So that by the time you perceive and react to the presence of the corner, the average perception reaction time being 1.5 seconds, you would be almost on top of the grid, wouldn’t you, before you could actually do anything?
A. That is correct.

67 Mr Jamieson considered that a sign ought to have been located 60-100 metres back from the grid, but the precise location was not determined by him and would require a site assessment (T 212).

68 Mr Milner visited the accident scene twice, the earlier occasion being in early February 2003, and the second occasion being some six weeks later. He said, by reference to the photos in Exhibit A, the topography and layout of the road appeared to be identical to that existing at the date of the accident. Mr Milner considered a suitable and safe speed environment on this road was generally 60-70 kph (T 141), but for the purposes of negotiating the grid and the curve beyond it, the safe speed was between 30 and 40 kph. He observed that the curve starts in the middle of the grid but that a motorist crossing the grid was restrained to cross parallel to the buttresses (T 141):

69 Like Mr Jamieson, Mr Milner considered a sign would have been appropriate to warn northbound traffic of what lay in front, and he was asked these questions and gave these answers (T 144):

“Q. In your report you have indicated an opinion that it would be appropriate for a sign such as that in photograph 7 to be erected on the approach of north bound traffic. Is the nature of the sign similar to that as shown in photograph 7?
A. Yes. That was the one that I proposed, and signs come in pairs, so there would be a similar one for the south bound traffic entering the curve.

Q. What speed would you have recommended in relation to such a sign?
A. For the north bound travel, given the juxtaposition of the grid and the immediacy of the curve thereafter, I would have proposed something of the order of 40 or 45 kilometres per hour.

HIS HONOUR: Q. Located where?
A. Sufficiently in advance of the grid that drivers can make adjustments to their vehicle speed. It would probably be back about 60 metres.

Q. 60 metres back from the grid?
A. Back from the grid, yes.

70 In cross examination (T 165) Mr Milner acknowledged that the council had no relevant accident history to inform it of the need to put up a sign and Mr Milner said he was unaware of any other information available to the council concerning such a requirement.

71 Mr Milner agreed (T 167) that a driver travelling at 70 kph shortly after passing over the crest of the hill would have been able to reduce his speed to 30 kph prior to the grid and to do so with ease. He also said that he would regard it as foolhardy for a motorist to cross the grid at more than 60 kph (T 166).

72 Mr Milner gave some evidence as to the cost of removing the bank which presented as the trip hazard to the defendant’s vehicle. He said that the cost involved was $5850 (T 170).

73 The cross defendant called Mr Johnston, who was also an engineer, and whose relevant expertise was not challenged. He visited the scene for the purposes of his principal report on 1 January 2004 and on that date he took photos to which I shall presently refer. Having made his assessment of the area, Mr Johnston concluded, contrary to Mr Jamieson and Mr Milner, that the provision of a curve warning and/or a speed advisory sign was not warranted (see para 6.3 of his report of February 2004). Mr Johnston considered the general speed environment to be 60-70 kph, but he considered the average driver would have problems in negotiating the curve at speeds in the mid 50s to 60 kph (T 235). Mr Johnston said he would not cross the grid much above 35-40 kph and he said he would have expected a driver to travel around the bend at 35-40 kph. He did not agree with the proposition that an advisory sign indicating a right hand curve and a speed of 35 kph should have been erected at the time of the accident for reasons given (at T239), and which I now summarise:

(i) the hazard should have been obvious to an oncoming motorist;

(ii) as a general principle, curve advisory signs are not used on unsealed roads;

74 Mr Johnston, in his principal report, adverted to reactive processes relied upon by road authorities, and considered it an important point that there had been no prior accident at the place where the subject accident occurred.

75 I have not endeavoured in the above review of the evidence of the experts to do more than to seek to record the general approach which each of them adopted to the issue as to whether there ought to have been in place some sign or signs to alert motorists to what lay ahead of them as they approached the particular cattle grid. Plainly, there is a fundamental disagreement between Mr Jamieson and Mr Milner called in the defendant’s case and Mr Johnston called in the cross-defendant’s case. None of the experts resiled from the thrust of his evidence when cross examined, and I am required to evaluate the evidence given, accepting as I do that each of the opinions expressed are genuinely held by well qualified experts. Plainly, the council could have erected some advisory sign for motorists travelling towards this grid, and there is a sign of this type further north on the same road, but whether it was appropriate for it to have erected such a sign is an issue about which there is a difference of expert opinion.

76 Mr McCulloch submitted that there was no duty of care owed by the council to the plaintiff but I reject that submission. In Brodie v Singleton Shire Council (2001) 206 CLR 512 is to be found the following relevant statement of principle in the joint judgment of Gaudron, McHugh and Gummow JJ (at paras 150-151):

“[150] …Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.

[151] The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48., a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case.”

77 Consistently with the above statement of principle, I find that the cross defendant owed to the plaintiff, and to the defendant, as road users, a duty of care arising by reason of its powers concerning the road where the accident happened. As I see it, the contentious issues are whether the exercise of reasonable care required the erection of a sign such as Mr Milner and Mr Jamieson contemplated as being appropriate, and whether had such a sign been in place the accident was likely to have been avoided.

78 In determining whether the exercise of reasonable care required the erection of such a sign, it is relevant to take into account these matters:

(a) the volume of traffic that the road was accustomed to carry, and the nature of it;

(b) the system the council had in place for recording complaints and accidents;

(c) the accident-free history of the particular stretch of road;

(d) the frequency of the engineer’s travels on the road;

(e) the demands on the council’s financial resources;

(f) the requirements of the Australian Standard;

79 (a) As I observed earlier, the Back Jugiong Road is not the main link between Jugiong and Harden, but rather it is a road which is principally used for access to grazing properties along its length. Mr Giacomen, who was the Shire Engineer employed by the cross defendant between January 1994 and August 2002, gave evidence that the cross defendant, through his department, conducted traffic counts from time to time with a road counter. Records (see Exhibit 7) reveal that on four occasions in 1996 the daily vehicle count on the Back Jugiong Road varied between 30 and 33 vehicles. Mr Giacomen said that three vehicle movements per day were to be expected from the properties along the road, so that the record suggests that through traffic, and hence use of the road by strangers, was an unusual event.

80 (b) Mr Giacomen said that whilst he was employed by the council records were kept as to any complaints made about roads in the Shire and receipt of a complaint was recorded and followed by an inspection order and a works order. He was not made aware in the time that he was employed by the cross defendant prior to the plaintiff’s accident of any complaints concerning the subject cattle grid or of any report of an accident. He did learn of the plaintiff’s accident and went out to inspect the scene of it promptly on 8 February 1999.

81 (c) A statement was tendered from Mr Willsallen, who was the proprietor of Dunolly Station. That property has been in his family since 1946 and he arranged for the installation of the cattle grid in 1949. That cattle grid eliminates the need to fence his property along the roadway. Mr Willsallen has no recollection of there being any other car accidents on the roadway adjacent to his property, which, of course, takes in the area where this accident occurred.

82 (d) Mr Giacomen said that he used to travel along this particular roadway “possibly once or twice a week”, either for inspection purposes or on his way back from Harden. He did not at any stage conduct a formal risk analysis as to the Back Jugiong Road and he was not aware of any such analysis that had been conducted before February 1999. He was not asked any questions as to any perception he had of hazards presented by this particular curve. He was, however, asked questions about a sign that was erected further north on this road to indicate a bend and to provide an advisory speed. The explanation for that sign was that a complaint had been made to a councillor and this prompted a request from council to put up the sign. The total cost of that erection, including the cost of the sign itself, was approximately $150.

83 (e) Whilst the cost of the construction of that sign was modest, the evidence disclosed that the council is responsible for 400 kilometres of sealed road and 400 kilometres of unsealed road. Exhibit 10 does not suggest that the council had unlimited financial resources and Mr Giacomen’s evidence discloses that he was required to submit an annual report for the purpose of consideration by council of the allocation of funds for maintenance works.

84 In his report of 20 February 2003 Mr Milner specifically referred (p 11) to the historical circumstance that rural shire councils “have long had insufficient funding to maintain the roads under their control”, and that assertion was not the subject of challenge. I do not assume for the purposes of this case that the cross defendant had unlimited funds at its disposal available to improve Back Jugiong Road.

85 (f) The Australian Standard 1742.2 makes provisions concerning road signs. The Standard specifically notes:

“Generally, advisory speed signs are not recommended for use on unsealed roads”

“Advisory speed signs are generally recommended for use on sealed roads only. They should not be used on unsealed roads unless it can reasonably be expected that the advisory speed will remain constant over time and will not be subjected to significant variations due to changes in surface conditions caused by weather or pavement wear.”

86 In his statement, Mr Willsallen recorded the complaint that the road became rutted and corrugated between grading works and that this was particularly so after rain. Water on the surface during or after rain would also bear upon the appropriate speed to negotiate the curve in question. Considerations such as these would warrant the conclusion that there may be variations in the advisable speed for negotiating this curve due to changes in conditions.

87 (g) Whether or not the features of the grid and the road beyond it ought to have been apparent to oncoming motorists absent any sign is a matter about which the experts disagreed. Their evidence, of course, merits careful assessment. Close attention to the various photographs that were introduced into evidence is also required.

88 The defendant said that he saw the cattle grid when he was 70-80 metres away from it and he noticed the two trees beside it (T 92). During further cross examination by Mr McCulloch, the defendant gave the following responses to the following questions, when shown the photographs that had been taken by Mr North, surveyor (part of Exhibit 5) (T 93-94):

“Q. I'm showing you some photographs which are part of a report of Mr North's and you don't need to worry about the name for now. Have regard to photograph 108?
A. Yeah. Right.

Q. Will you agree that that photograph shows the view which was available to you at a distance of a little over 72 metres from the cattle grid?
A. The view that shows the cattle grid. Is that what you are saying?

Q. Will you agree that the photograph 108 shows the view which was available to you as the driver on the day of the accident, of the cattle grid from about 72 metres before the cattle grid?
A. Yes.

Q. So when you said in your evidence that at some point you noticed the cattle grid --
A. Right.

Q. -- would it be fair to say it was about 70 metres?
A. Yes.

Q. Do you say that as soon as you noticed the cattle grid, you took your foot off the accelerator?
A. Yes.

Q. I take it to that point you had been accelerating?
A. Yes.

Q. Is that correct?
A. Yes.

……………

McCULLOCH: Q. Going back to photograph 108, do you agree that that photograph depicts the layout of the road as it appeared in February 1999?
A. As it appeared in February 1999?

Q. Yes?
A. I'm unsure of that. Sorry.

Q. What do you say to your recollection looks any different?
A. Nothing.

Q. Having given that answer, will you not agree that from a distance of about 70 metres from the cattle grid, it was quite apparent that the road went to the right immediately after the cattle grid?
A. In this photo, yes.

Q. Will you agree that that was the situation, that is, that you could see that the road went over to the right immediately after the cattle grid from about 70 metres away?
A. Yes.

89 My own appreciation of photograph 108 in Mr North’s report is that the view shown from a position 72 metres south of the grid would alert a driver to the curve of the road beyond the grid and to the need to approach the grid with caution. It is hardly surprising therefore that the defendant responded as he did to the questions he was asked about that particular photo. Mr Bartlett submitted that the defendant’s responses ought not to be taken as acknowledging an appreciation of the witness prior to the accident, but only what he was seeing in the witness box as he looked at the relevant photo. I take that submission into account in assessing the evidence given by the witness. I should also refer to what he was asked in re-examination (T 96):

“BARTLETT: Q. On the actual day of the accident, when you were approaching the grid where the accident occurred --
A. Right.

90 Mr North’s photos were taken in July 2004. They showed a view from eye-height in a vehicle similar to that driven by the defendant, that is from a height of 1.5 metres (see p 4 of Exhibit 5). Further photos taken by Mr North included:

(a) photo 109 from 59.9 metres

(b) photo 110 from 43.9 metres

91 Is there any reason to find that Mr North’s photos do not convey a reliable appreciation as to the position when the defendant was approaching the grid on 6 February 1999?

92 Mr Bartlett pointed to the circumstance that it appeared to have rained prior to the time Mr North took his photos, and also that Mr North’s photos were taken more than five years after the event. On the other hand there is no suggestion that the road has been altered in any way or that there has been any relevant clearing done on land depicted in Mr North’s photos in the time that has elapsed since the accident.

93 Mr Milner, when asked to consider whether there had been any change since the accident, relying on the police photographs Exhibit A, said that the position appeared to be the same as at February 2003 (T 140 and T 146). He also considered Mr North’s report (T 146) and, having done so, said there had been very little change.

94 When he was asked to consider Mr North’s photos, Mr Johnston, in the passage I referred to earlier (T 241), conveyed that he considered Mr North’s photos afforded the best appreciation of the driver’s opportunity to see and appreciate the bend. Mr Johnston’s own photographs were taken from a height of 1.15 metres, so they did not show the view the defendant had approaching the curve and, for my part, his photo figure 9, taken from 50 metres south of the cattle grid, does not provide me with any appreciation of the curve of the road beyond the poplars. The photos provided by Mr Johnston are coloured photos and at least two of these photos (photographs 5 and 6) depict a road that is green in colour. I cannot accept that these photos convey the true colour of the road surface since there is no explanation for a colour change at the location where figures 8 and 9 were taken. Not only are Mr North’s photos taken at the height relevant to the vehicle the defendant was driving, but I regard them generally as being more reliable as to quality, having regard to the unexplained colour differences in Mr Johnston’s photos.

95 Mr Jamieson was cross examined about Mr North’s photos, having given evidence (T 182) that the acute right hand curve was only visible from a distance of less than fifty metres from the grid. Mr Jamieson was asked the following questions and gave the following answers (T 203-205):

“Q. Would you agree that a driver who observed the grid as depicted, and I will ask you to assume in photograph 108 of Mr North's report and for a person who was travelling at 70 kilometres per hour, allowing for the general reaction time, would be able to reduce his or her speed to 30 kilometres per hour with ease before negotiating the grid?
A. Yes.

Q. And, indeed, if such a person chose to they will be able to reduce their speed within a distance of about 30 metres, wouldn't they?
A. From 70 or 80?

Q. Yes?
A. Yes.

Q. Just while we've photograph 108 before us. Would you agree that the photograph depicts quite plainly and unambiguously that the road proceeds to the right after it crosses the grid?
A. Yes, based on the growth of the grass and so on. It's clear from photograph 108 that the road goes to the right some time after the grid.

Q. And you're familiar, aren't you, in photography terms with the concept of framing?
A. Yes.

Q. Would you agree that from over 100 metres away from the cattle grid the poplar trees indicate by a method of framing the possibility that the road proceeds between them?
A. Yes.

Q. The only other possibility is that the road goes around them and the trees might be a potential hazard?
A. I agree with the former.

Q. Why won't you agree with the latter?
A. It - well, it's a possibility, yes.

Q. So that someone unfamiliar with the road approaching from some distance who couldn't see the cattle grid and what lay beyond it would be told by the visual cues presented by the trees that either the road went between the trees, correct?
A. Yes.

Q. Or the road, although it appeared to head directly towards the trees, did not go between them and thus the trees might be a potential hazard?
A. That's reasonable, yes.

Q. You would agree, wouldn't you, that the speed environment of this road from a distance of about 40 metres south of the grid presented itself as one at which 30 kilometres per hour as a safe speed?
A. From 40 metres south?

Q. Yes?
A. Yes. I think from 40 metres south of the grid it would start to become clear to a north bound motorist that the, firstly, the grid in the immediate north background and then the road veers off sharply to the right following.

Q. And would you agree that the same would apply for 50 metres?
A. Not really 50. By then the effect of the crest comes in and you can't really see the road beyond the grid.

HIS HONOUR: Q. Crest, what crest?
A. Not the crest, your Honour. The effect of the terrain.

MCCULLOCH: Q. Go please to photograph 110. I'm puzzled by that last answer. Would you not agree that photograph 110 shows clearly and unambiguously that the road has a continuous path across the grade and then to the right?
A. Well, photograph 110 is taken at 43. Possibly the more relevant one is the one above it at 59.9 but from these photographs I would agree with you.

Q. Would you please answer the question. I asked you in respect of photograph 110, first, do you agree that it depicts clearly and unambiguously that the road travels across the grid and then around to the right?
A. Yes.

Q. And so does photograph 139?
A. Yes.

96 Mr Jamieson said however that he formed a different appreciation when he was at the scene (T 205):

97 Upon further questioning and having also been shown the photos in Exhibit C, Mr Jamieson’s evidence proceeded

(T 205):
“Q. I'm asking you about the obviousness of the road geometry?
A. No. If the question relates to obviousness and the road geometry then it wasn't obvious.

Q. You had no idea from 60 metres out, do you say, that there was a road which went across the grid and then around to the right?
A. That's a different question.

Q. Do you say that from 60 metres south of the curve it was obvious to you when you did your site inspection that the road went across the cattle grid and then around to the right?
A. It was evident that the road went to the right beyond the grid.

(T 206):
“Q. And perhaps if that could be returned. So, Mr Jamieson, is this the position: From 60 metres south of the cattle grid it is obvious to anyone who's watching where they're going while they're driving that the road passes over the grid and then moves to the right?
A. Yes, evident.

(T 207):
“For this purpose I want you to agree with me that this was entirely obvious what the road did as from 60 metres out?
A. No. I strongly disagree. I think it was evidenced that the road veers to the right from some range as to the south. What was not obvious was the severity of the curve immediately beyond the grid.

98 Of course the issue I have to determine is not whether the severity of the curve justified the erection of a warning sign but whether the council, in the exercise of reasonable care, should have erected such a sign prior to the date of the plaintiff’s accident.

99 Whilst I am mindful that the council had to consider road users driving vehicles lower to the ground than the utility the defendant was driving, I nevertheless find I am particularly assisted by Mr North’s photos in determining the issues that arise on the cross claim. The distance from which the photos in Exhibit 5 were taken have been precisely measured and the photos are themselves of good quality.

100 There are, of course, other photos that have been introduced into evidence. Exhibit A contains the photographs taken by the police shortly after the accident. I do not find that these photos assist me in determining what a motorist could be expected to see as he approached the grid traveling north.

101 The photos comprising Exhibit C were taken in July 2000 and were accompanied by a document containing a description of what the various photos show. Photos 2, 3, 4 and 5 show the view towards the accident scene taken from 110 metres south, 90 metres south, 70 metres south, and 50 metres south respectively.The location of “the accident scene” for the purposes of those measures is not defined in Exhibit C but there is no feature of these photos which suggests any change in conditions from the time the photos in Exhibit A were taken. Nor do I find any inconsistency between Exhibit C and the photos in Exhibit 5.

102 Mr Milner said he took the photos in Exhibit 2 from a standing position. His photo 1 was taken before the crest and Mr Milner estimates at a distance approximately 120 metres back from the grid. The description in his report for photo 2 is that it was taken at a distance of approximately 75 metres to the south of the grid. I observe that this photo does not show as wide a view as Mr North’s photo 108 which was taken from 72.6 metres, and even allowing for some distance in the height from which Mr Milner’s photo 2 was taken, I consider it likely that Mr Milner’s photo was taken further back than from a distance of 75 metres, preferring as I do Mr North’s precise measurement to Mr Milner’s approximation as to distance. I do not find that I am assisted by Mr Milner’s photo 2, nor am I assisted by the remaining photos in Exhibit 2. Photo 3, which is the only other photo taken to the south of the grid, is a view taken off the roadway looking across to the grid.

103 Mr Jamieson took some photos forming part of Exhibit 3. His photo marked 2.3 was taken about 110 metres south of the curve and shows the road framed by the two poplars, but none of the road beyond them. His photo marked 2.4 was taken about 60 metres from the grid, and quite clearly shows the sharp curve beyond the grid. Its content is entirely consistent with Mr North’s photos 109 and 110.

104 I accept the evidence that Mr Milner gave that the speed environment generally in the area was 60-70 kph but that this was reduced to 30-40 kph at the grid and the curve beyond. I also accept Mr Milner’s evidence that a driver travelling at 70 kph shortly after passing over the crest south of the grid would be able to reduce his speed to 30 kph prior to the grid, and to do so with ease.

105 It is, of course, for the defendant to satisfy me on the balance of probabilities that in the exercise of due care the cross defendant ought to have erected an appropriate road sign and/or that it ought to have removed the earth embankment prior to the plaintiff’s accident. The defendant has failed to discharge the onus of proof on either of these issues. Having considered all the evidence, I am not persuaded that the evidence of Mr Milner and Mr Jamieson is to be preferred to that of Mr Johnston in respect of these matters. Indeed, it seems to me that a motorist keeping a proper look out could be expected to become sufficiently aware of the grid and of the curve beyond in time enough to reduce speed appropriately, and the cross defendant would have been justified in having come to this conclusion, supported as it was by past experience in the use of this road.

106 Moreover, I am not satisfied that had there been a sign in place such as that proposed by Mr Milner and Mr Jamieson its presence would have avoided this accident. I am satisfied that Mr North’s photos evidence what the defendant should have seen as he was approaching the grid and the curve. I have found that the defendant was negligent in that he was travelling at a speed which was excessive in the circumstances and in that he failed to keep a proper look out. The defendant gave evidence to the effect that had there been an advisory sign beside the road he would have slowed down. Whilst I do not find that evidence to have been given dishonestly, I do not find it to be reliable. Having regard to the defendant’s concessions in cross examination, I am satisfied that the defendant failed to observe features of the scene confronting him as he approached the grid and which ought to have been evident to him and which called for him to reduce his speed. In the circumstances, I am not satisfied that had there been an advisory sign beside the road, the defendant would have become alert to that additional feature either.

107 For the above reasons the cross claim fails and the cross defendant is entitled to judgment accordingly.

Damages

108 The plaintiff was born on 7 April 1980, so that at the date of the accident he was eighteen years of age, and he is presently twenty-four years old. He sustained in the accident a fracture of C6 with a C5-6 dislocation. These injuries resulted in quadriplegia, resulting in grave permanent disabilities.

109 Damages are to be assessed in accordance with the provisions of the Motor Accidents Act 1988.

110 There has been substantial agreement reached as to the appropriate measure of damages, and I record the heads of damage upon which agreement has been reached and the sum agreed in respect of each of these heads:

340,000.00

111 It is to be noted that agreement was reached as to the last of the above items after I had reserved my decision in this matter. Counsel’s letter advising of the agreement reached has been marked as Exhibit H.

112 There have been two matters upon which the parties have been unable to agree:

(i) the cost of future care

113 I will consider each of these matters in turn.

Provision for future care

114 The plaintiff gave evidence of an intention to leave Harden and to move to Canberra. He said he has also given consideration to moving to Port Macquarie or some area around there and ultimately stated the position (T 301):

“Q. Yesterday you told us of your intention to move to Canberra, is that so?
A. That's right.

Q. Have you in the past considered other places that you might move to?
A. Yes I have. I've considered moving to Port Macquarie and other such areas around that area.

Q. Yes, all right. Do you dismiss those now as not being the case or how do you regard those alternatives compared with Canberra?

A. I probably still consider Canberra my main destination but other areas are always open for consideration.

115 I accept that the probability is that the plaintiff will leave Harden after this case is over and will probably go to Canberra. Harden lacks the facilities that the plaintiff will require in the long term, which facilities Canberra can afford.

116 Accordingly, it seems to me to be appropriate to proceed to assess the plaintiff’s future care costs upon the basis that in the very near future he will go to Canberra to live.

117 That being so, what provision is appropriate for the plaintiff’s future care? It is common ground that the plaintiff will require twenty-four hour per day live-in help. The only real issue is how meeting this requirement is to be costed.

118 The plaintiff relied upon evidence in the form of correspondence from Dial-an-Angel Pty Limited and Ms Robertson, a director of that organisation, gave evidence. The defendant relied upon a report from Complete Domestic Care. Neither the author of that report nor any other representative of that organisation gave evidence.

119 In the past the plaintiff has had paid carers provided by Flexible Carer Services and that arrangement has worked to his satisfaction, but paid services were provided only four hours per day, seven days per week and the balance of the plaintiff’s needs were met by his family. Obviously, it would be unreasonable to expect that arrangement to continue. Provision must now be made for the remainder of the plaintiff’s life, having due regard to commercial rates for the provision of necessary care.

120 The plaintiff gave evidence as to his wishes. He does not want to be responsible for employing a carer on a master/servant basis. This would create what he perceives to be problems, in looking after wages and superannuation and insurance, and matters that he has not had to deal with in the past. He is also apprehensive about the difficulties that would arise if he wished to dismiss a carer. The plaintiff’s concerns in relation to these matters are understandable, and I do not consider that they are unreasonably entertained.

121 Ms Robertson was asked to consider how the situation would need to be addressed if the plaintiff’s carer was required to attend to him more than twice per night during what might normally be considered to be sleeping hours. Ms Robertson responded that if during the night the carer was required to attend to the plaintiff more than twice, then there may be a need for a second night carer. However, I am not persuaded by the evidence that there would be a need for a second carer at night and, in any event, a claim for additional costs for such provision was not ultimately pursued (T 317-318).

122 Ms Robertson gave evidence as to the cost of provision of agency employed staff in Canberra on a twenty-four hour per day care basis. It was envisaged that two carers would be involved, one working four or five days per week, and the other working two or three days per week. The cost of that regime was calculated in Exhibit G (work sheet 2). Services provided in this way would be provided by agency employees managed by the employment agency. This approach would address the plaintiff’s concerns referred to above. The weekly recurring cost of the provision of twenty-four hour per day care upon this basis would be $4854.

123 An alternative basis upon which twenty-four hour per day care could be provided would be in a situation where the agency found and provided the carers but they were employed by the plaintiff. The cost of this regime, as originally itemised in Exhibit G (work sheet 4), was greater than the cost of providing agency employed and agency managed care. However, errors in the costing in work sheet 4 were detected and in the course of submissions Mr Hennessy presented a corrected version of work sheet 4 which discloses a weekly cost for the provision of services for the plaintiff where he employs the carers but the agency provides management of $4274.49. That costing has included in it an ongoing agency charge for case management. The case manager would, according to Ms Robertson, “make sure everything was running smoothly and therefore do all the administrative work” (T 309). The manager’s services would include ensuring wages were paid and appropriate provision for taxation purposes was in place.

124 A third basis upon which twenty-four hour per day care could be provided would be where the agent found and provided the carer, but the plaintiff employed the carer and he also managed matters once the agency placed such carer. The cost of such a regime was set out in Exhibit G (work sheet 6). As with work sheet 4, errors were detected in work sheet 6 and a corrected work sheet presented by Mr Hennessy in the course of his final submissions disclosed the weekly cost of this regime to be $3974.49 per week.

125 The most costly of the three approaches would, of course, be the approach of providing services where the agency employed and the agency managed all aspects of the carer’s engagement (Exhibit G, work sheet 2). That arrangement would, of course, address the plaintiff’s concerns about being involved in administrative aspects, but so too would the second approach where the agency provided the carers in the first place but also provided management services. That second approach would seem to me to properly address what I perceive to be concerns reasonably held by the plaintiff. The second approach would provide the necessary services and at a lesser cost. I conclude that the first approach should be put to one side.

126 What of the third approach? It would not address the concerns voiced by the plaintiff and identified above. Once the agent had provided a carer all aspects of management would become the responsibility of the plaintiff.

127 It seems to me that it is reasonable in the circumstances of this case to make provision for carer services on the basis that whilst the plaintiff employs the carers the agency provides the personnel and management services. In other words, that the second of the three approaches earlier identified should be adopted.

128 On the basis of the evidence as to costs given in the plaintiff’s case, the cost of this approach would be $4274.49 per week. Is that a reasonable assessment? The only alternative costings to those provided by Dial-an-Angel were from Complete Domestic Care. The report from this source dated 26 July 2004 records the daily rates of three agencies and then expresses an average daily rate for a live-in carer below $320. To that would have to be added food costs and leave entitlements. The report does not cost the additional charges. Mr Bartlett, in final submissions, did present calculations, presenting a weekly cost of $3181 on New South Wales rates and a weekly cost of $3448 when a component of twenty percent was included for workers’ compensation insurance.

129 When cross examined by Mr Bartlett about the rates presented by Complete Domestic Care, Ms Robertson gave evidence that the rates were not supportable for agency employed staff (T 323). As I see it, the letter from Complete Domestic Care does not provide what that agency would perceive to be total weekly costs including all items in the work sheets comprised in Exhibit G as corrected by Mr Hennessy in his final submissions.

130 In the circumstances, I prefer as a starting point the calculations presented by Mr Hennessy.

131 It has been agreed between the parties that the plaintiff has a life expectancy of forty-five years, so that the multiplier on the five percent tables is 950.4.

132 Whilst I am satisfied on the balance of probabilities that the plaintiff will move to Canberra and settle there, it remains a very real possibility that at some stage in the future he could move again. In cross examination the plaintiff did not rule out moving at some stage to a warmer climate, and in cross examination said (T 301):

“BARTLETT: Q. And those other areas, I take it, are they essentially on the north coast of New South Wales?
A. Anywhere there's sort of a warmer climate, I guess.

Q. And you did indicate initially in your evidence that it was your intention to go back to TAFE and possibly pursue some work. Is that still the case?
A. That would be the case, yeah.

Q. So I take it if the TAFE opportunities or the work opportunities avail themselves Sydney, which is also north, wouldn't be out of the question?
A. I probably wouldn't come back to Sydney due to just the nature of the city. It's, Canberra and Port Macquarie and areas like that, are large places but they're not overly sort of large in the sense that they're, Sydney's like a pretty big place and I don't do so great in big places like that.

133 The provision of care in Canberra is made more expensive than the provision of care in New South Wales because of the costs of workers’ compensation insurance in Canberra. Whilst the current premium on gross wages in the ACT is twenty percent, it is only 5.75% in New South Wales (Ms Robertson T 309).

134 It seems to me in the circumstances that the contingency that the plaintiff might move back to New South Wales in the next forty-five years should not be ignored.

135 It is also possible that as time goes by and the plaintiff adjusts to full time paid live-in care, he may decide at some stage that he is capable of doing the management tasks for which he would otherwise have to continue to pay the agency.

136 It is also possible that the plaintiff may find ongoing services can be provided more cheaply through some agency other than Dial-an-Angel. The author of the Complete Domestic Care report of 26 July 2004 referred to the variation in fees and charges from one agency to another.

137 It seems to me, having regard to these contingencies, that I should discount the figure otherwise arrived at on the five percent tables by reference to the work sheet 4 figures. The lump sum presently required to provide for a weekly cost of $4274.49 for forty-five years has been calculated at $4,062,471.12. I discount that figure by fifteen percent for the contingencies I have identified and arrive at an allowance of $3,453,100, rounding the calculation off. That sum I allow for future domestic care.

Allowance for cost of carers for plaintiff’s children

138 The plaintiff claims provision in his award for the added costs of caring for his children, by reason of his being unable to attend to their care. The claim is advanced, relying upon the decision of the Court of Appeal in Sullivan v Gordon (1999) 47 NSWLR 319. Does that decision support the claim at present being made?

139 Points of distinction between the present case and Sullivan v Gordon must be recognised. The plaintiff in Sullivan was a young woman who suffered frontal lobe brain damage in a motor vehicle damage. The plaintiff was, by virtue of her disability, rendered incapable of caring for daughters born after her accident, and it was held that the plaintiff was entitled to be compensated for the cost of providing necessary care for the daughter who remained with her. The brain damage suffered by that plaintiff affected her ability to decide whether it was appropriate and reasonable to have children and that is an element in the chain of causation absent in the present case. Here the plaintiff’s prospects of having a child would depend upon planning and specialised medical assistance, to which I shall later refer.

140 In Sullivan Mason P agreed with Beazley JA, as did all the other members of the court, but the President said this (at para 14):

“The birth of children is also linked to the accident, in a sense, because the appellant's brain damage impacted upon her ability to determine whether it was appropriate or responsible or sensible for her to have children: see at [67] of Beazley JA's reasons. I incline to the view that it would make no difference if this unusual link were absent, but I express no final view on the matter. An injured plaintiff's own need for personal care includes changing needs occurring throughout his or her lifetime. Nevertheless, it may be necessary to consider whether it is always reasonable to lay at the tortfeasor's door the cost of care for children born after the injury. Pure logic is not the only matter at play in this difficult area of the law.”

141 Whilst I recognise the points of distinction in Sullivan and whilst I am alert to the implications of the above dicta of the President, I am of the opinion that a plaintiff who fathers children after suffering compensable injury is entitled to the reasonable cost of providing care for those children which, but for the injury sustained, he would have been able to provide and would have been likely to provide. Although the plaintiff in the present case was at the time of the accident a single and unmarried man, it was foreseeable that he might marry and have children. It is not unreasonable that the plaintiff hopes to marry and to become a father, and if he does so then he will have the legal responsibility of providing necessary care for those children. To make provision for meeting this possible need does not, in my view, involve a departure from the approach to causation defined in March v Stramare (E. & M.H.) Pty Limited (1991) 171 CLR 506 and applied in Medlin v State Government Insurance Commission (1994-95) 182 CLR 1.

142 In principle then I am persuaded that the claim made is of a kind which is maintainable. What is the evidence in point?

143 The plaintiff is a single man. He gave evidence of his wish to marry and to have children and I accept that he does in fact have the wishes he expressed. He gave evidence he had a girlfriend at the time of the accident and whilst that relationship did not persist he has subsequently had two other girlfriends. Presently there is no relationship of this kind, but the plaintiff said he had no trouble in meeting girls and he did not see the wheelchair as a hindrance. He said (T 272):

“Being in the chair, I don't see it as a hinderance, I don't have a problem with the chair and I am sure if the right lady comes along, or right woman comes along and they can accept me for who I am and look past the chair, I don't see we will have any issues later in life.”

144 The plaintiff impressed me as a determined young man with a positive approach to the future. Whilst the plaintiff is by no means certain to marry, I consider that there is a real chance that he may do so.

145 If the plaintiff does marry, the medical evidence indicates that he would be able to father children, although Dr Middleton says this would require specialised assistance (see the report of Dr Middleton of 17 October 2001, being part of Exhibit E).

146 The plaintiff has said he would like to have two children, and if the plaintiff does marry it is possible that he could father two children.

147 In written submissions the plaintiff’s claim under this heading was presented thus:

“An appropriate and reasonable allowance is as follows:-

(a) whilst the infant child is 0 to 5 years of age, allow 5 hours per day including weekend days;

(b) whilst the infant child is 6 to 18 years of age, allow 4 hours per day, including weekend days;

(c) Ex F:187 costs agency employed and agency managed casual nanny’s at $224.40 for 5 hours and $187.00 for 4 hours;

(d) 5 hours per day at $224.40 x 7 days = $1,570.80 per week x 231.5 = $363,640.20, deferred 9 years x 0.614 = $223,275.08;

(e) 4 hours per day x 7 days for the next 13 years = $1,309 per week x 502.3 = $657,510, deferred 14 years x 0.505 = $332,042;

(f) accordingly, provision for one child is $555,317;

(g) allow provision for a second child, discounted for overlap and further deferral, say 66% of $555,317, $366,509;

(h) accordingly, total provision is $921,826;

(i) discount entire award for chance of Plaintiff not meeting life partner and/or not proceeding to have children, discount of 75%, $230,456.

148 In my opinion, such an allowance would be far too high even if the plaintiff’s prospects of marrying and of having two children were to be rated as a twenty-five percent chance, and I do not consider that they ought to be.

149 There are a number of reasons why I consider the approach invited in the written submissions to be unacceptable:

(i) If the plaintiff does marry and does have children, I consider that to compensate for five hours per day seven days per week would be excessive. Had the plaintiff not been injured he would have been at work at least on weekdays and whilst he could have been expected to help in caring for an infant child, I consider it highly unlikely that his involvement would have aggregated more than fifteen hours per week.

(ii) Then to proceed on the basis that the plaintiff would have provided four hours per day of care after any child reached school age and until such child became an adult would, again, be to allow too much, having regard to the same considerations. Moreover, as any child develops in school years the nature of that child’s need for his or her father’s care would change, and the need for manual assistance would progressively decrease. The costings presume that the plaintiff, had he been uninjured, would have provided compensable care four hours per day until a child reached the age of eighteen years, but how that time was to be taken up was not detailed in submissions. If the plaintiff does have children, there are still many important parental responsibilities he can discharge as a father notwithstanding his disabilities, and I reject the submission that it would be reasonably necessary for him to engage paid help twenty-eight hours per week to do what he could not do from the time that his child starts at school until that child reaches adult age. In my view any compensable need of the plaintiff would start under fifteen hours per week and would gradually reduce in the twelve year span here being considered.

(iii) The same considerations would apply to a second child, if one was to be born. It is to be expected that the two children contemplated would be close in ages, and it seems to me that the approach invited in the calculations advanced does not allow sufficient by way of overlap.

(iv) In my opinion, an allowance of $48 per hour would be excessive.

(v) Moreover, it is to be borne in mind that the plaintiff is, in any event, to be provided with the cost of twenty-four hour per day care, and he might reasonably expect if he has a child or children that the paid carers available to meet his needs might also respond to reasonable requests made by him to address some of the needs of any child he may have such as he might otherwise have acted to meet if not disabled.

150 Whilst I am of the opinion that the principle in Sullivan v Gordon may extend to a male parent who has lost the capacity to care for a child or children, the application of the principle in the circumstances of this case must, in my opinion, be approached with caution, having first assessed the chances of the plaintiff marrying and becoming a father. I do not regard the chances of those events occurring to be so low as to be speculative and thus non compensable; see Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638 and in particular the judgment of Deane, Gaudron and McHugh JJ at 643. However, as I have already indicated, the chances fall far short of amounting to a probability.

151 I am satisfied that the plaintiff is entitled to some allowance to provide against the possible future need to pay for assistance in caring for a child or children in respects which he would have addressed but is now unable to address because of his disabilities. In arriving at that allowance, I bear in mind the plaintiff does not presently contemplate marriage before the age of thirty (T 270), so that any provision is to address a deferred need which would not commence for some seven to ten years.

152 I have above criticised the submissions advanced on behalf of the plaintiff, and it seems to me to be undesirable and, indeed, impossible to arrive at an appropriate allowance on a strictly mathematical basis. That is not to say that the actuarial tables cannot be used as some guide, and I have so employed them here. Doing the best I can, I have decided that an appropriate allowance in this case is the sum of $45,000.

153 To the agreed heads of damage amounting to $3,448,436.23 set out in para 109 above, there are therefore to be added the following sums:

154 Omitting cents, the plaintiff’s total damages amount to $6,946,536.

Formal orders

155 1. Verdict and judgment for the plaintiff against the defendant in the sum of $6,946,536.00.

2. On the defendant’s costs claim, verdict and judgment for the cross defendant.

**********

Last Modified: 09/13/2004

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Citations

Allen v King [2004] NSWSC 834

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Astley v AusTrust Ltd [1999] HCA 6

Vairy v Wyong Shire Council [2005] HCA 62

CITATION:	Allen v King [2004] NSWSC 834
HEARING DATE(S):	26-27, 29-30 July, 2-4 August 2004
JUDGMENT DATE:	10 September 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Studdert J
DECISION:	(1) Verdict and judgment for the plaintiff against the defendant in the sum of $6,946,536.00. (2) On the defendant's cross claim, verdict and judgment for the cross defendant. (3) Costs on the plaintiff's claim and on the defendant's cross claim are reserved.
LEGISLATION CITED:	Motor Accidents Act 1988, s 74
CASES CITED:	Brodie v Singleton Shire Council (2001) 206 CLR 512 De Blieck v Fraser (unreported, NSWCA, 19 November 1980) Lee v Burn (1998) 37 MVR 186 Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638 March v Stramare (E. & M.H.) Pty Limited (1991) 171 CLR 506 Medlin v State Government Insurance Commission (194-95) 182 CLR 1 Nicholson v Nicholson (1994) 35 NSWLR 308 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Sullivan v Gordon (1999) 47 NSWLR 319
PARTIES :	Peter Christopher Allen (Plaintiff) Shannon King (Defendant) Harden Shire Council (Cross Defendant)
FILE NUMBER(S):	SC 20271/03
COUNSEL:	P.R. Hennessy SC/E. Romaniuk (Plaintiff) R. Bartlett SC/R. Weinstein (Defendant) M. McCulloch (Cross Defendant)
SOLICITORS:	Messrs Butler & Company - Lawyers (Plaintiff) Sparke Helmore (Defendant) Phillips Fox (Cross Defendant)