Armstead v The Nominal Defendant

[2005] NSWSC 472

CITATION:	Armstead v The Nominal Defendant [2005] NSWSC 472
HEARING DATE(S):	18/04/05 - 04/05/05
JUDGMENT DATE :	27 May 2005
JUDGMENT OF:	Cooper AJ at 1
DECISION:	See paragraphs 401 and 402 of judgment

CATCHWORDS:	Motorcycle accident - Unknown defendant - Quadriplegia care requirements - Past care costs - Future care costs
LEGISLATION CITED:	Motor Accidents Act 1988 Civil Liability Act 2002
CASES CITED:	Fox v Percy (2003) 214 CLR 118 The Nominal Defendant v Gardikiotis (1996) 186 CLR 49
PARTIES:	Richard Paul Armstead The Nominal Defendant
FILE NUMBER(S):	SC 20439 of 2002
COUNSEL:	D Wheelahan QC, P Frame (Plaintiff) B Gross QC, P J Gow (Defendant)
SOLICITORS:	Lamrocks Penrith (Plaintiff) McMahons National Lawyers Sydney (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
COMMON LAW LIST

ACTING JUSTICE COOPER

27 May 2005

20439 of 2002

RICHARD PAUL ARMSTEAD v THE NOMINAL DEFENDANT
JUDGMENT

1 COOPER AJ: In this case the plaintiff sues to recover damages to compensate him for very serious injuries resulting in quadriplegia sustained by him on the night of 9 March 2000 when the motorcycle he was riding and he parted company and he fell striking his head against the corner of the concrete kerb.

2 He alleges that an oncoming vehicle on his side of the road was about to collide with him head on and in order to avoid such a collision he was compelled to cross on to his incorrect side of the road in a rushed emergency manoeuvre thereby resulting in his fall and injuries. The defendant denies that there was any such oncoming vehicle and claims that the injuries were caused by the plaintiff driving round a left-hand bend in the roadway at an excessive speed.

THE LOCAL GEOGRAPHY

3 The plaintiff was travelling along a road at Newport which has been referred to as Crescent Road. This is a generally a narrow winding road sealed from kerb to kerb and 8 metres in overall width. Down the centre of the roadway is a set of double dividing lines.

4 When travelling north, as the plaintiff was doing, Crescent Road makes a sharp left-hand turn and is uphill to the intersection of that street with Cecil Road which enters from the plaintiff’s right (the east).

5 Opposite the mouth of that intersection is the crest of the hill and a sharp left-hand bend. There is a break in the centre lines opposite that mouth for approximately 9 metres. To the north of that intersection Crescent Road slopes steeply downwards (an 18% grade) to the intersection of Yachtsmans Paradise which enters Crescent Road on the left (the west). From the intersection of Cecil Road to the intersection of Yachtsmans Paradise is approximately 75 metres. At the bottom of the hill and at about the intersection of Yachtsmans Paradise is a set of 4 islands in the centre of the roadway. It is along the section of Crescent Road between the intersections of Cecil Road and Yachtsmans Paradise that the plaintiff came to grief.

6 It was dark but the weather was fine and the roadway was dry.

THE PLAINTIFF’S EVIDENCE

7 The plaintiff testified that he was familiar with this section of roadway having traversed it hundreds of times in both daylight and nighttime. He said that he understood it very well (p. 10). He was riding a 600cc Kawasaki motorcycle which was only about 3 months old. He was wearing an approved full-face helmet which was about the same age. Both were in excellent condition. He liked driving along that route to his then home because there were no traffic lights and he regarded it as a very pleasant route.

8 The speed limit in Crescent Road appears from evidence from Pittwater Council to have been 40 kilometres per hour although there is some dispute as to whether this was clearly indicated.

9 The plaintiff drove north along Pittwater Road and then turned right into Mona Street. He then turned right again into Waterview Street until he reached the intersection of Crescent Road. He then turned left in Crescent Road at which point there is a speed hump. He slowed the bike down and went over that hump approximately in third gear doing around 20 kilometres per hour. After Crescent Road passes the intersection of Phillip Road there is a distinct downgrade and then an upgrade with a general left-hand turn to the intersection of Cecil Road.

10 As the plaintiff was approaching the intersection of Cecil Road he described his speed as around 40 kilometres per hour and his position approximately half a metre to the left of the centre lines. As he came to the crest of the hill opposite Cecil Street he slowed down because the corner turns to the left more than 90 degrees.

11 As he rounded that left-hand bend he was confronted and blinded by a set of headlights on high beam approaching him on his side of the road. His evidence was that, at this stage, he was approximately where the double lines started again on the north side of the intersection of Cecil Road. In evidence he was unable to say how far away the lights were from him when he first saw them. At this time his motorcycle was leaning about 10 to 15 degrees to the left because he was going around a left corner at a speed of around 30 to 35 kilometres per hour. He testified that, had he continued on the path he was then travelling he would have hit the car head on.

12 His evidence was that on realising the danger of the imminent collision he applied his brakes, straightened the bike up to the perpendicular position, changed down a gear to slow down more, pushed down hard on the front brake to slow down quicker and then sharply turned off to the right to get out of the way of the oncoming vehicle. He said in answer to a question p. 19:

“I put a lot, a hell of force on to the front brake because that’s the better brake to use, and enough force on the back brake so I wouldn’t lose the back end out.”

13 He crossed the double lines and remembered putting the brakes on and he had a vague memory of going over the handlebars and remembers nothing else. So far as he could recall his motorcycle was then straight and stable going off to the right.

14 He said:

“I remember stopping, putting the brakes on, and change down gear and the bike went off to the right. So I instantly automatically steered myself to the right to avoid that car and that’s the memory I have, the set memory”.

15 His next memory was waking up in hospital.

16 He described the lights of the oncoming vehicle as set low and vaguely similar in height and size to a Hyundai Excel which he had owned before he acquired his motorcycle. When asked if he noticed anything about the speed of the oncoming vehicle relative to his own he said he did not really. He was just blinded with the light with his visor down. He denied attempting to turn into Cecil Street pointing out that he was already just past that intersection.

17 At p. 93 under cross-examination he said:

“I remember seeing a car and had a split second to make a decision. I put the brakes on, changed down gear and because the way the bike was slightly leaning to the left it stood up the bike in the vertical position and then I steered suddenly, quickly to the right and that’s all I remember.”

EVIDENCE OF THE LAY WITNESSES

18 Lee Morgan and Brendan Fowler had been visiting number 47 Crescent road. That house is located at the end of a steep uphill driveway, some 70 metres long, leading from Crescent Road. It is on the eastern side of that road.

19 When about 50 or 60 metres from the roadway he heard a screeching noise and then a collision. Before hearing that sound he had neither seen nor heard any motor vehicle going along Crescent Road from his right or from his left. He then ran down the driveway to Crescent Road. To the right of the driveway of Number 47 he saw a motorcycle and to the left of the adjoining driveway leading to Number 45 Crescent Road he saw the plaintiff with his head in the gutter. He described the location of the plaintiff as a metre or two to the south of the driveway to Number 45.

20 In his statement, Exhibit 10, he said at paragraph 11:

“Prior to hearing the sound of the collision I heard nothing else. As I walked down the driveway I wasn’t aware of any cars driving in a southerly along The Crescent. I believe that I would have been aware of any car passing the driveway in the time I was walking along it in the direction of my home. I didn’t hear the sound of any breaking or tyre screeching prior to the sound of the collision.”

21 In his evidence at p. 435 he pointed out that there is a tree about 5 metres to the south of the driveway to Number 45 and the plaintiff was between the driveway and that tree - he thought closer to the driveway.

22 Brendan Fowler was walking down the same driveway from Number 47 but was behind Lee Morgan. He was, therefore, at a higher level than Morgan. He said that he saw a red light about the same size as a tail light and, at the same time, he heard what sounded like a motorcycle engine at full throttle. The red light went from his left to his right upwards at an angle which he indicated at about 60 degrees from the horizontal and then downwards but he could not see its downward movement. Immediately after that, he heard a crunching noise of metal on something hard coming from Crescent Road. He ran down to the roadway and saw a rider to his left with his face down in the gutter and a motorcycle was on his right on its side at the driveway to number 47 with its rear wheel still spinning but the engine was not running.

23 I shall come back to the significance of this red light later.

24 Mr Fowler added that there was a chip of cement freshly missing from the top corner of the kerb about 1 metre south of the driveway to Number 45 at the point where the plaintiff was lying and which he surmised was most probably caused by the impact of the rider’s helmet with that corner.

25 In the light of this evidence plus the nature of the damage to the plaintiff’s helmet and the nature of his injuries (of which more will be said later) I am comfortably satisfied that Mr Fowler’s assumption is factually correct.

26 That night and again at 7 o’clock the next morning he looked for marks on the roadway. He saw scrape marks on the bitumen about 3 metres to the south of Number 45’s driveway. They were towards the centre of the southbound lane. He indicated that they covered an area of about 18 inches by 15 inches. He also looked on those two occasions for skid marks but saw none. In his search at 7:00am the next morning he went up to the corner of Cecil Road and saw no skid marks nor did he see any debris on the roadway. He said: “I couldn’t find anything”.

27 The other significant “witness” is Exhibit F which comprises a number of photographs of the subject motorcycle. These photographs show minor damage to its right hand side consisting, in the main, of scrape marks at varying angles. The expert witnesses called by both parties agree that such scratch marks are consistent with the motorcycle having slid down the hill on its right hand side and at the same time turning around whilst on its side.

28 In the light of the evidence of Messrs Morgan and Fowler as to the points at which the plaintiff and his motorcycle ended up it is clear that the plaintiff ended up approximately 31 metres north of the northern kerb alignment of Cecil Road and his motorcycle ended up approximately 10 metres further south in Crescent Road.

29 If, as the plaintiff said, he moved to his right and applied his brakes just past the recommencement of the double lines north of the intersection of Cecil Road, he ended up some 5 metres to his right and slightly under 30 metres to the north of his starting point. I accept the expert evidence that the movement to the right could cause his motorcycle to “high side”, that is fall on to its right-hand side, and throw him over the handlebars and result in his landing head first on the top corner of the cement kerb.

30 The fact that his motorcycle continued on for a further 10 metres is not indicative of high speed but rather of the steep downward slope coupled with the fact that the rear wheel was turning and it could have caused the cycle to move further if it came into contact with the kerb or the roadway.

SOME RED HERRINGS

31 The police report, Exhibit 2, states:

“There are no skid marks on the road. The motorcycle has minor damage to the front and left side.”

32 This last statement is incorrect. Exhibit F shows no damage on the left side whatsoever. All of the damage is confined to the right side.

33 The report also says that the speed limit in force was 60 kilometres per hour. This is incorrect. The plaintiff thought that it was 50 kilometres per hour but records from the Pittwater Council indicate that is was 40 kilometres per hour.

34 It would appear that although the police officer spoke to some people who live nearby he conducted but a superficial examination of the scene. It may well be that no marks were seen by him in the dark but there is no attempt to revisit the scene in daylight. There must have been some marks on the roadway. It appears that he was looking only for skid marks.

35 In addition to the chip out of the top corner of the cement kerb at the point where the plaintiff was found lying by Mr Fowler, the fact that the plaintiff hit that point head first is supported by evidence of damage to the helmet. This is described in the police report as: “a large crack in the middle front section.” It was described by Ms Goldsworthy as a crack above the eyepiece in the front about 2 inches long and a further crack down on the chin section. Ms Goldsworthy also testified that the helmet had no such cracks prior to the accident.

36 Mr Henderson, an expert engaged by the plaintiff, gave evidence of seeing a black mark on the vertical section of the kerb on the eastern side of Crescent Road at a point approximately 12 metres to the north of Cecil Road. He expressed the opinion that this was consistent with the faring of the motorcycle coming into contact with that part of the kerb. However when he was asked to identify any marks shown in the photographs of the motorcycle consistent with such a collision he was unable to locate any. Furthermore, if the faring had come into contact with that part of the gutter the probabilities are that the cycle would have fallen on to the grass adjacent to the kerb on the footpath and there would have been marks in the grass at that point. There were no such marks. Accordingly, on the probabilities I am satisfied that the mark indicated by Mr Henderson was not connected with this accident.

37 Mrs Goldsworthy, the then partner of the plaintiff, had been told by either police or by hospital staff members, that the plaintiff had ended up outside Number 45 Crescent Road and that local residents had given him assistance. Two days after the accident she went to the scene for the purpose of speaking to those people and thanking them for their assistance.

38 She said that she had a walk around to see if she could see why the accident had occurred. She saw nothing on the road that the plaintiff may have hit such as debris. She saw a short skid mark at the top of the hill and she marked its position and angle to the kerb line on Exhibit O.

39 The position and angle of the skid mark as drawn by her is inconsistent with the manoeuvre undertaken by the plaintiff and, therefore, is on the probabilities not connected with the accident. This was the unanimous view of all experts who were asked to give their opinion on it. She also described scrape marks which she said were on the eastern side of the road starting probably about 5 metres down from the crest of the hill. They were just scrapes as if something had scraped down the road and they went a little further than the spot where she was told the plaintiff had ended up. She also marked the position of those scrape marks on Exhibit O.

40 This evidence is contrary to the evidence of Mr Fowler who described a much shorter length of scrape marks further to the south than 5 metres down from the crest of the hill. I am therefore satisfied on the probabilities that her estimate of 5 metres is incorrect and, to the extent that that estimate is reflected in her drawing on Exhibit O it, likewise, is incorrect.

41 Mr Stuart-Smith and Mr Griffiths agree that the damage to the motorcycle shown in Exhibit F is inconsistent with it having tumbled side over side. Mr Griffiths said that the damage shows a bike that went on to its right side and then stayed there (p. 378). He was asked at the same page:-

“Q. So such a manoeuvre is completely consistent with a motorcycle having high sided, fallen on its right side and slid on the right side and down a fairly steep hill.

A: That was my view and when I expressed that view initially it seemed I was in the minority.”

42 In his statement to the police on 14 October 2000 the plaintiff said:

“As I rode over the apex I saw a set of lights coming up on the wrong side of the road towards me. They were about 20 metres away from me.”

43 Ten days later he gave a statement to an insurance investigator and in paragraph 13 said:

“As I hit Cecil Road, I saw headlights approaching from the opposite direction. These lights were on high beam. They blinded me. I had my visor down at his time. When I saw these headlights they were about 20 metres north of the intersection. The trouble is with that intersection, you can’t see the approaching traffic until you the hit the corner as it goes around on itself. Those lights appear to be fully on my side of the road. Those lights appeared to be going quicker than me.”

44 On behalf of the defendant it is submitted that if the distance between the plaintiff and the oncoming vehicle was only 20 metres they would have been approaching each other at such a speed that a collision was inevitable. With this I agree.

45 The plaintiff gave evidence that he was reluctant to tell both the police and the investigator how far away the vehicle was when he first saw it. He was pressed to give a distance and he expressed the opinion of 20 metres. Such an estimate however is totally unreliable. He was blinded by the oncoming headlights and therefore would have been unable to distinguish any of the surrounding features which would enable him to make any reliable estimate. Furthermore he was confronted with an emergency and had to react in an emergency. With the benefit of hindsight and in the calmer atmosphere of the Court he has said that it was more likely that the oncoming vehicle was further away. I have no hesitation in accepting this evidence.

46 What is not doubt that the plaintiff ended up on his wrong side of the road and in collision with the kerb. On behalf of the defendant it is submitted that this was because he had taken the left hand curve of Crescent Road at an excessive speed, crossed on to the wrong side of the road and lost control as he was trying to get back again to his correct side. This submission is supported by some of the evidence of experts called on its behalf.

47 In my view, of greater significance is the fact that all experts agree that the objective facts are consistent with the plaintiff having made an emergency turn to his right to avoid a perceived danger and in the course of so doing the motorcycle became unstable, it went on to its side, he was thrown over the handlebars and ended up hitting his head on the top corner of the kerb.

48 This is not a case to be determined by the opinions of experts. The real issue is: has the plaintiff satisfied the court on the balance of probabilities that his version of the causes of the accident is to be accepted. Indeed, in relation to much of the evidence of experts on both sides who sought to give evidence of reconstruction of how the accident occurred I would repeat with respect the words of Callinan J in the case of Fox v Percy 214 CLR 118 at p. 167.

“Rarely in my opinion will such evidence have very much, or any, utility. Usually it will be based upon accounts, often subjective and partisan accounts, of events occurring very rapidly and involving estimates of time, space, speed and distance made by people unused to the making of such estimates. Minor, and even unintended but inevitable discrepancies in relation to any of these are capable of distorting the opinions of the experts who depend on them. It is also open to question whether the variables in relation to surfaces, weather, and the tyres, weight and mechanical capacities of the vehicles involved can ever be suitably accounted for so as to provide any sound basis for the expression of an opinion of any value to a court.”

WAS THERE AN ONCOMING CAR?

49 On behalf of the defendant it is submitted that the evidence of the plaintiff should not be accepted because, amongst other reasons, he has given no less than 8 different versions of the accident.

50 The first alleged version is said to have been given some 2 or 3 weeks after his admission to the Royal North Shore Hospital to Dr Soden who spoke to him in her capacity as a data collector for the Register of Spinal Cord Injury cases. She spoke to him whilst he was in intensive care. This was within the period within which the plaintiff says he has no memory.

51 She asked him a number of questions the first one being: “what was the victim doing at the time of injury event”. She wrote down an answer: “Travelling home on motorbike with full face helmet. ETOH 0.08.”

52 She explained that ETOH means blood/alcohol reading. At that stage the plaintiff was unaware of an alcohol reading and in fact his blood/alcohol reading was different from 0.08. Dr Soden could not satisfactorily identify the source of this information, but agreed that it may have been in some medical notes.

53 The second question was: “What went wrong? Describe how things went to precipitate the entire incident or injury sequence.”

54 The answer she recorded was:

“Came over a rise and hit rain from stormy weather. Hit debris on the road from previous days rain”.

55 The next question is “What actually inflicted the injury”. The answer recorded is: “Impacted face on kerb and head forced into extension.”

56 In evidence the plaintiff agreed that there could have been rain on the day before the accident and that when there is rain there is sometimes debris on the road but he explained that it is always in the gutter and his motorcycle was nowhere near the gutter. Furthermore, having heard the plaintiff speak I consider it highly unlikely that he would use a phrase such as: “forced into extension”.

57 Dr Soden said that she was satisfied that the plaintiff was then conscious and alert. She was unable to say on what she based this information.

58 The lack of reliability of her evidence is exemplified by the following passage at pp 34 and 35:-

“Q. But as long as you get the information from some source that you convey to the Central Register, that’s all you need, isn’t it?
A. Yes, but the patient – we also need to get a vignette which creates the scenario as close as possible to the injury event.
Q. Yes but you would have been told by anybody that had or was alleged to have had.
A. That is one of the failings of the system. It can be either the patient’s reporting or a reporting in the notes, that are deficient in these catastrophic injuries.”

59 It is also clear that she got the location of the accident wrong. She noted it as Mona Vale. It took place at Newport.

60 Of particular significance is the following question and answer:-

“Q. Thank you Doctor. May I encapsulate all of this material with this proposition? Doing the best you can to provide a record for the case registration data base in South Australia, you have done your best to glean the information that is set in Box 26 from whatever source it was available.
A. Yes.”

61 In addition to this, there is the evidence of Ms Goldsworthy to the effect that two to three weeks after his admission into Royal North Shore Hospital, the plaintiff was still fighting for his life. He had had a tracheostomy and was unable to speak unless it was capped. Dr Soden was unable to recall whether it was capped or not.

62 In the light of all of this evidence I am comfortably satisfied that if the plaintiff did in fact give Dr Soden this information (as to which I have some doubt) then it was the consequence of his befuddled state of mind and cannot be relied upon as an expression of an accurate factual account.

63 The second alleged version is that the plaintiff gave evidence that while in Royal North Shore Hospital he had no recall of the events of the accident. He was in that hospital from 9 March to 29 May 2000, a period of 11 weeks. His evidence was that he was not able to recall the events concerning the accident until he was an inpatient in the Moorong Rehabilitation Centre to which he was admitted on 29 May.

64 In this evidence he is corroborated by Mrs Goldsworthy, his then partner, who gave evidence that he was asking her what had happened. He kept on asking this question and she told him that he had had a motorbike accident and was paralysed. He failed to understand what she was telling him because he answered with words to the effect: “don’t worry, I’ll be out in a week.”

65 She gave evidence that over a period of at least 6 weeks he was in such a confused state that he had no comprehension of the extent of his injuries but seemed to think that everything was going to be all right.

66 She went further and said (p. 391) that approximately 6 weeks after the accident he said that he remembered bright lights and swerving to miss them. He was extremely frustrated and could not remember the day of the accident at all. It was over the ensuing weeks that he remembered bit-by-bit different parts of the day and not necessarily in proper order. He later recalled being at the hotel at Cremorne and then driving around Crescent Road. Her evidence was that from the time that he mentioned the lights to the time any new information came forth was some two to three weeks.

67 Subsequently the plaintiff contacted his present solicitor who was recommended by his brother who had gone to school with the solicitor. It was the plaintiff’s brother, Michael, who made the initial contact with the plaintiff’s present solicitor and later Mrs Goldsworthy was asked to give him a call. She was asked by the solicitor to make an effort to find out if anyone knew anything about the accident. As a result, she prepared a pamphlet which she dropped in letterboxes in the street.

68 In that pamphlet, Exhibit M, reference is made to the fact that the plaintiff only recently recovered his memory of the events.

69 On behalf of the defendant it was submitted that the gradual onset, piece-by-piece, of memory of the events about the accident is highly improbable. I cannot agree with this submission. In my view, particularly having regard to the description of the regaining of memory given by Mrs Goldsworthy, it is highly probable and acceptable.

70 What is claimed to be the third version is contained in the plaintiff’s Personal Injury Claim Form (Exhibit 1) signed by Mrs Goldsworthy on behalf of the plaintiff. It reads so far as is relevant:-

“Heading north along The Crescent. As I came up the hill and began to lean into the curve, I saw a set of headlights on my side of the road. I attempted to pick the bike up out of the left and swerve right around the vehicle. The bike slid on the right-hand side and I hit the gutter with my head.”

71 In evidence the plaintiff said that the last sentence was based on something he had been told. The first part he remembered.

72 The sketch forming part of the claim form shows the plaintiff swerving to the right in about the mouth of Cecil Road with the oncoming car almost touching him. This was clearly not a drawing to scale. However it does show a reasonable representation of what happened although not necessarily in the correct position on the roadway. It is certainly not inconsistent with the evidence which the plaintiff gave in Court.

73 The fourth alleged version is contained in a statement dated 14 October 2000 given by the plaintiff to Senior-Constable Pringle (Exhibit 2). The relevant part reads:-

“I turned left into The Crescent from Waterview Road, Mona Vale. I was in third gear as I turned into the street. I drove down the gully and changed up gears. When I hit the bottom of the gully I changed down. The whole street sweeps around to the left and I came to the crest of a little hill that sweeps around the corner. As I rode over the apex I saw a set of lights coming up on the wrong side of the road towards me. They were about 20 metres away from me. I basically hit the brakes, kicked the bike out of the left-hand corner, tried to go right. I went over the top of the handlebars. That’s basically all I remember. . . . I was going about 30 kilometres per hour.”

74 With the exception of the estimate that the lights were about 20 metres away from him, this version is substantially the same as he gave in evidence.

75 What is said to be the fifth version is contained in a statement to an insurance investigator on 28 October 2000, Exhibit 6. The relevant parts of this stated:-

12 “I was riding at a speed of about 30 kph, getting down that area. When I hit Cecil Road I was going 30 kph ……I was riding on my correct side of the roadway positioning myself to go through the bend, leaning the bike to the left.
13 As I hit Cecil Road, I saw headlights approaching me from the opposite direction. These lights were on high beam. They blinded me. I had my visor down at this time. When I saw these headlights, they were about 20 metres north of the intersection. The trouble is with that intersection, you can’t see the approaching traffic until you hit the corner as it goes around on itself. Those lights appeared to be fully on my side of the road. These lights appeared to be going quicker than me.
14 When I first saw these lights, I was right at the apex of the corner and little bit to the right, of the middle of my lane. I picked my bike up, by this I mean I straightened it up out of the lean, and I hit the brakes. I tried to turn right up into Cecil Road to try and avoid the car. I then remember going over the handlebars, and that’s about it. I don’t remember the headlights passing me at all. I believe the car must have passed me still driving in the northbound traffic lane.
15 The car appeared to be a small two door, but I am not sure. I can’t say what colour this car was. I can’t say how many persons were in this car. I can’t describe the numberplates at all. All I saw was the bright lights ahead of me. If I had kept going in my lane I would have hit him head on. He would have got me regardless either head on, or on the left-hand side.
16 The next thing I remember is being in hospital, with my partner, Karen alongside me in intensive care. This was about 4 weeks after the accident.”

76 With certain exceptions this is substantially the same as he gave in evidence in Court. The first exception is his estimate of 20 metres. The second exception is that he thought that the other car was going faster than him. The third exception is that he tried to turn right up into Cecil Road to try and avoid the car.

77 The plaintiff explained that he was pressed to give an estimate of his distance from the oncoming car and that reluctantly he did so. He also said that he did not tell the investigator that he tried to turn right up into Cecil Road and added that such a manoeuvre was impossible because at the time he saw the oncoming headlights he was almost at the northern edge of that intersection. Indeed had he tried such a manoeuvre he would have collided with the kerb much closer to intersection of Cecil Road than he did.

78 What is alleged to be the sixth version is a passage in the report of Dr Buckley of 1 June 2001. Dr Buckley says that he was told that:-

“He was driving his new motorbike wearing his helmet and full gear when he came around a bend to find a car on the wrong side of the road. He thinks he braked, to avoid the vehicle, but in any event, lost control, striking the gutter. He was found by some people in the street. His last memory of the accident was braking. His next memory was 3 weeks later in Royal North Shore Hospital.”

79 This, of course, is Dr Buckley’s paraphrasing of a potted version of the accident given to him by the plaintiff. It is not inconsistent with the substance of the plaintiff’s evidence.

80 The alleged seventh version is comprised in a diagram drawn by Mrs Goldsworthy on behalf of the plaintiff, sent to the plaintiff’s solicitor and then transmitted by the latter to Mr G Moir and reproduced in his report (Exhibit 7). This shows the plaintiff’s motorbike making a sudden deviation to the right at or just past the northern end of the mouth of the intersection of Crescent Road with Cecil Road and then a curve to the left immediately after that sudden right deviation.

81 This is neither consistent nor inconsistent with the plaintiff’s evidence. He did not know the entirety of the course which his motorcycle took. He was aware he turned to the right, was aware or vaguely aware that he went over the handlebars and that’s all he knows. The balance is a reconstruction by Mrs Goldsworthy.

82 The alleged eighth version is what the plaintiff said in Court. I have already referred to some exceptions. In addition the plaintiff in evidence described the oncoming vehicle as a small vehicle when judged by the height of its headlights. He did say in his evidence that he thought, but was not sure, that it was a two-door vehicle. In evidence he went into a lot more detail as to the application of the brakes and the gearing down of his vehicle and trying to swing to the left than he did in any of the previous versions. But this added information was given in Court in answer to searching questions.

83 In short, the plaintiff has given a consistent version of the accident involving his coming around the corner, being confronted by oncoming headlights blinding him on his side of the road and, as a result, having to take emergency action to get out of its way. This has been consistent from as early as 22 June 2000. This consistency in my view tends to render his version of how the accident occurred and in particular the presence of an oncoming car on his side of the road, all the more probable.

84 It is also submitted on behalf of the defendants that if the plaintiff was travelling at only 30 – 35 kilometres per hour and if that speed was reduced by heavy braking and gearing down, it should have virtually come to a halt and would be unlikely to continue such a long distance to the north striking the eastern kerb, scraping along the road and causing such serious damage to the plaintiff’s helmet and neck.

85 In the first place there is no evidence that the motorcycle struck the kerb prior to the plaintiff falling off it. In the second place the distance between the point at which the plaintiff started his right-hand turn and where he came to rest was on the probabilities less that 25 metres.

86 In the third place the contention of the defendant is based on the estimate that the plaintiff struck the kerb at 30 kilometres per hour. I find little or no objective evidence to support this estimate. The plaintiff’s helmet came into collision with the top corner of the cement kerb where the vertical section meets the horizontal section. In other words there was a very narrow area which exerted force on the plaintiff’s helmet. None of the calculations given by the experts appear to have taken this into account.

87 I do agree with the defendant’s contention that vehicles normally do not travel on the wrong side of the road. However the statistical improbability of such an event does not mean that it did not happen on this particular occasion.

88 The plaintiff gave evidence that he was not aware of the oncoming vehicle passing him. In view of the fact that his attention was concentrated on getting the motorcycle out of the way and that he was blinded by the oncoming lights I do not regard this as tending to establish that there was no such oncoming vehicle.

89 However there is the evidence of Mr Morgan and Mr Fowler to the effect that they neither heard nor saw any southbound vehicle before the sound of the plaintiff’s motorcycle falling on the roadway.

90 This evidence however must be viewed in the light that the other vehicle was a small vehicle and that these men were then some 50 and more metres away from the roadway and that there were at that time a large number of trees around them which would have the effect of deadening sound coming from the roadway.

91 As against all of this it is necessary to look at the history of the plaintiff.

92 He was born on 24 June 1959 and attended school until 1976 after which he commenced and completed an apprenticeship as a fitter and turner. From the time he left school up to the date of the accident he was in regular employment earning quite good money. At times he took on a second job.

93 His first marriage ended in separation in 1993 and dissolution in 1996. His former wife was a paranoid schizophrenic and the plaintiff sought and was awarded sole custody of their daughter, Gina, whom he then raised as a sole parent until meeting Mrs Goldsworthy, the woman with whom he cohabited for a few months prior to the subject accident.

94 He obtained a motorcycle rider’s licence when he was 18 and rode this motorcycle for something like 10 years in the intervening years to the date of his accident.

95 As mentioned earlier he was familiar with Crescent road and its twists and bends and hills. He rode his motorcycle to work daily.

96 On the day of the accident he came home from work, had a shower and went to Sydney City Kawasaki Bike Shop in Redfern to view some equipment.

97 He then rode to the Strata Hotel on Military Road, Cremorne near the intersection of that road and Spofforth Street. He gave evidence that he there drank five or six full strength metric schooners of beer with some friends and also ate some sandwiches and chips. He was at the hotel from approximately 6:45 pm to 9:45 pm. So far as he was aware he was unaffected by alcohol.

98 He then drove down Military Road on to the Spit Bridge up to Seaforth and from there to the Wakehurst Parkway and joined Pittwater Road at Narabeen. He then drove along Pittwater Road turning off into Mona Street and then followed the route described earlier.

99 Over this journey he had ridden along main roads which are heavily trafficked and which have traffic lights, without any adverse problems.

100 An example of the reliability of the plaintiff as a witness is demonstrated in the report from Professor Starmer to the defendant’s insurer of 5 January 2001.

101 The plaintiff gave evidence that between about 6.45 and 9.45 on the evening of 9 March 2000 he consumed 5 or 6 schooners of full strength beer.

102 At paragraph 4 of his report Professor Starmer says:-

“Given the body weight (85 kg) and gender (male) of an individual, the amount of alcohol consumed (73.9 grams) and the time frame of the drinking episode (he started drinking at 6.45 pm), it is possible to make an estimate of the most likely blood alcohol concentration at some later time point. Applying this calculation to Mr Armstead, I am of the opinion that at the time of blood sampling (23:59 hours), his blood alcohol concentration should have been about 0.059 grams per millilitres, which is in reasonable agreement with the police finding. His recall of his drinking over the period in question is therefore likely to have been accurate.”

103 The plaintiff impressed me as a witness who was doing his very best to tell the truth. He gave his evidence in a clear manner and under robust cross examination was prepared to concede matters (including his consumption of alcohol) which may have been against his interests but nonetheless were consistent with his overall version of events.

104 Having seen and heard the plaintiff and after considering all of the evidence I am satisfied on the probabilities that his version of an oncoming car with its lights on high beam forcing him to take sudden emergency evasive action is eminently probable and believable. In coming to this conclusion I have disregarded Mr Fowler’s evidence of the moving red light.

The Moving Red Light

105 But there is a further matter to consider and that is what was the moving red light described by Mr Fowler in his evidence.

106 To answer this question it is necessary to set out the relevant passages from his evidence.

107 At pages 438/9

“Q. Approximately how far were you from where the driveway enters Crescent Road?
A. Over 50 metres.

Q. So what did you notice at this stage?
A. What I saw was a red light about the same size as a tail light and, as I heard an engine wind out I saw a red light more or less in front of me, and it went from my left to my right, and it was on an incline, like that.

Q. You show in an arc which goes from the bottom of the arc to the top, but you have not shown any further - you have shown the upward arc. You did not see any downward arc?
A. No.

Q. Did you hear any noise? Can you describe the noise you heard?
A. As I saw the light moving I heard an engine, small engine, wind out.

Q. And the engine sounded like what type of engine?
A. Motor cycle.

HIS HONOUR: Q. What do you mean by winding out?
A. Full throttle, take it to full throttle.

GROSS: Q. Did you hear any other sound at all?
A. Shortly after that I heard a crunching noise, a crashing noise, metal on something hard.

Q. Where did you hear that noise?
A. I heard that noise about two metres from the top of the driveway when I started running down.”

108 At page 440:-

Q. Would you do it again - maybe about three inches across. Are you trying to make a circle?
A. It is a rounded rectangle. I saw a light about that size.

Q. A rounded rectangle about three or four inches across, three inches across and two and a half inches vertically.

HIS HONOUR: Q. I just want to understand the movement you saw of this light?
A. My line of sight from where I was positioned, Crescent Road four years ago, could be seen, you could see a bit of the road and the telegraph pole, there is the road there, I saw a red light from where the corner bit should be, come from my lower left and it went upwards to my right, and then disappeared.

GROSS: Q. Along what line relative to Crescent Road?
A. That would be going down Crescent Road.

Q. From left to right - you are indicating with your hands?
A. Yes.
HIS HONOUR: Q. Could you help me. You said it was going down Crescent Road, Which direction in Crescent Road, downhill?
A. Yes. It was - it was coming from Cecil Road directly, down Cecil Road and straight down Crescent Road.

Q. And straight down Crescent Road, how could you tell it was on the road?
A. The light was not on the road. The light was airborne.

Q. At that stage what made you think it was airborne?
A. I have lived there for so long, I knew the telegraph pole, I used to watch for the pizza delivery coming around the corner, I knew where I saw the light it was not touching the ground. That light was airborne. It had left the ground.

109 At pages 440 and 441:-

GROSS: Q. I appreciate you see the light in its upward arc, not any further arc, but if that arc was continued, where would it take that light?
A. It would have taken that light to just the right of my drive.

Q. In Crescent Road?
A. In Crescent Road.

Q. Apart from that light did you see any other light or lights?
A. A street light on the telegraph pole, that was the only other light. No vehicles.

Q. You did not see any light or lights, consistent with any other vehicles?
A. No.

Q. And the light you saw, was it a single light?
A. A single light.

110 At pages 445 and 456

Q. I think you're aware that down through the trees below where you've put the circle and to the left of the circle, there is actually the house to number--
A. There's a white house all through there just to the right of the red circle is number 45. So the red light I've seen has occurred - I've seen through a gap between the house at number 45 and all the foliage next door to them. That's where my vision has been, through that area.

Q. For what period of time did you have the red light under observation. Was it just a split second, fraction of a second?
A. One and a half seconds.

Q. During that one and a half seconds, did you have it under observation the whole time, did you?
A. Until the red light was no longer in my vision.

Q. When you first heard a noise, did the noise appear to be coming from where you've now indicated the red circle or appear to be coming from up near the intersection?
A. No, with the red circle. It all ran together simultaneously.

111 At pages 447 and 448 he was questioned with photograph number 3 in exhibit J:-

HIS HONOUR: Q. That indicates what, that arrow?
A. That's the position of where approximately I can see lights coming up or down Cecil Road.

Q. Cecil Road?
A. Yes.

Q. What about Crescent Road?
A. On Crescent Road where the circle is on the picture, that's approximately the vision I have to the left of my driveway of Crescent Road.

Q. What about the intersection of Crescent Road and Cecil Road?
A. Is the same position as the circle.

Q. Same position as the circle?
A. Yes. I can't see the far left edge of that intersection because that's obscured by a house. What I can see is the right side of that intersection.

Q. So a vehicle going up Crescent Road to the south past Cecil Road would be making a right-hand turn?
A. Yes.

FRAME: Q. What I'm suggesting to you, if you were looking towards the arrow that we now know to represent traffic in Cecil, right, knowing that at that point the Crescent does a right turn?
A. Yes.

Q. If you were standing at the top of the driveway looking towards that arrow, vehicles turning right as it were, with the curvature and going along the Crescent would appear to be going from your left to your right?
A. Level, left to my right, level.

112 And at pages 449 and 450:-

Q. You've told us today that it appeared to be going up and then you lost sight of it?
A. Yes. The light went from the left to my right on a steep incline, and because I only saw a red light, and at the other end of the red light should have been a white light, right, which is the head lamp. From the height that I was standing at that was - yeah, they were the estimates that I made with him at the top of the driveway.

Q. So you estimated that it was 4 feet because you couldn't see a headlight. Is that right?
A. We estimated it was 4 feet from where my line - where I could see the telegraph pole. That road drops down, so that's where we stood at the top there. This is before any telemetry was done.

113 At page 451

Q. What I want put to you is from your vantage point, if you saw anything, it would have been a light similar to the light that you see here being a tail light of a vehicle disappearing around the corner moving from right to left. Do you understand what I'm saying to you - moving from left to right?
A. Level, it's moving - a car going around Crescent Road southbound to Mona Vale, its tail lights actually come into vision and move on the same plane away from you and disappear, whereas what I saw was actually moving up where there is no road there.

114 At page 453:-

A. Are you trying to get at, is it possible that it might have been another vehicle driving away?

HIS HONOUR: Yes.

A. That is what you're trying to get at?

Q. Yes, you put it precisely; what is your answer to it?
A. My answer to that is, no, your Honour.

Q. Why?
A. The altitude, the sharpness of the small red light that I saw has gone up at this kind of angle, whereas a vehicle going southbound around Crescent Road, while it still goes from my left to right, it is a shorter distance and there is no incline to be had.

115 To understand Mr. Fowler’s evidence it must be borne in mind that his observations were made from a point of the driveway to Number 47 Crescent Road which is substantially higher than the adjacent roadway and approximately level with the crest of the hill at the intersection of Crescent Road and Cecil Road. There were trees between that position and the intersection. The light that Mr Fowler saw was observed, as it were, through portholes in the foliage of those trees. His view of the roadway immediately to his left of the driveway was obscured by the house at Number 45.

116 The motorcycle coming towards him would have had its headlight, and not its taillight, facing him. Over the top of the taillight is a form of cowling which prevents one seeing that light from immediately above the motorcycle.

117 He said that the light was airborne and had left the ground. For this to have occurred the motorcycle must have either achieved a position where it had somersaulted over its front wheel or was airborne and had turned sideways 90 to 180 degrees. All experts agree that the damage to the motorcycle was not consistent with the bike having somersaulted end-over-end or even side-over-side. At page 348 Mr Stuart-Smith the expert engaged by the defendant was asked:-

“Q. So it might have been running on its front wheel with its tail up in the air.
A. It couldn’t really have been doing that for the tail to have come up in the air. Theoretically that would be possible, but in practice highly unlikely.”

118 On behalf of the defendant it was submitted that the red light was visible because the cycle was in the horizontal, or close to horizontal, position and turning around so that the red light was visible. However the damage is such as to render it in my view highly improbable that the motorcycle was airborne while it was turning around. I accept that when it was turning around it was on the ground sliding downhill and not in the air.

119 The key to understanding Mr Fowler’s evidence is that he said he could see the streetlight on the telegraph pole which he identified as the one on the western side of the Crescent Road opposite the mouth of Cecil Road. He said that he could not see the eastern side of that intersection but he could see the Western side.

120 Mr Fowler said: “I knew the telegraph pole, I used to watch for the pizza delivery coming around the corner.”

121 That pizza delivery coming around the corner would be travelling in a northerly direction towards him. Accordingly he would be able to see it because it was on the western side of the carriageway. That is the same side as the telegraph pole to which he referred.

122 I am satisfied on the probabilities that the light that he saw was in fact the vehicle described by the plaintiff going up the last part of the hill on its wrong, or western, side of the road and then disappearing around the right turn of the corner of Crescent Road. That vehicle, on the probabilities would have reached that position at about the same time as the plaintiff lost control of his motorcycle causing Mr Fowler to hear the sound of the cycle engine winding out followed immediately by the sound of the crash.

123 From the vantage point of Mr Fowler, a tail light on the offending vehicle travelling south in the northbound lane would appear to move slightly upwards and from right to left as it was commencing to turn round the right hand bend and then disappear as it was completing that turn. The level movement of the oncoming pizza delivery to which Mr Fowler referred may well apply to a southbound vehicle in its correct lane, but not to a southbound vehicle in its wrong lane.

124 For all of these reasons taken collectively and individually I am comfortably satisfied that the plaintiff came to grief because he was forced to take emergency evasive action to avoid a head on collision with a vehicle approaching him on its incorrect side of the roadway.

125 The driver of that unidentified vehicle was clearly guilty of negligence and that negligence caused the plaintiff’s injuries.

Contributory Negligence

126 I now pass to the issue of contributory negligence.

127 The police report, Exhibit 2, reveals that a blood sample was taken when the plaintiff was admitted to Royal North Shore Hospital at about midnight on 9 March 2000. A reading of that sample revealed a blood/alcohol level of 0.064. The report goes on to say that it had been decided that police will exercise their discretionary power in not taking action against the plaintiff for low PCA due to the serious and permanent nature of his injuries.

128 Section 138 of the Motor Accidents Compensation Act provides:-

“A finding of contributory negligence must be made in the following cases……
(a) Where the injured person….has been convicted of an alcohol or other drug related offence in relation to the motor accident unless the plaintiff satisfies the Court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident”.

129 There is no such conviction, consequently the mandatory requirements of this section do not apply.

130 It is submitted on behalf of the plaintiff that even if he had been convicted he has established that alcohol did not contribute in any way to the accident.

131 He was confronted with an immediate danger. In order to avoid a head on collision he had no choice but to deviate to the right and the evidence establishes to my satisfaction of the balance of probabilities that manoeuvres such as those which the plaintiff was compelled to undertake are likely to have the result that ensued - namely that there was a “high siding” incident causing him to be thrown from his cycle. It is unfortunate that he struck a hard and narrow unforgiving surface such as the top corner of the kerb with his head.

132 On behalf of the defendant it is submitted that there was contributory negligence in two respects. First that the plaintiff was travelling at an excessive speed and secondly that he was affected by alcohol.

133 In relation to the first I am satisfied that the plaintiff was not travelling at a speed which was excessive in the circumstances. In relation to the second it is necessary to have consideration to the report of Professor Starmer.

134 Professor Starmer expresses the opinion that, accepting that the blood sample was taken at 23:59 hours (approximately 1 hour and 19 minutes after the crash) and applying the well-established formula for the rate of elimination of alcohol from the system, then the plaintiff’s most likely blood alcohol concentration at the time of the crash would have been about 0.084 grams per 100 millilitres. He did not think that it would have been lower than 0.077 grams per 100 millilitres or higher than 0.090 grams per 100 millilitres.

135 The Professor expresses the opinion that the facets of rider control can be shown to be greatly impaired at blood alcohol concentrations below 0.064 grams per 100 millilitres which is a conservative estimate of his blood alcohol concentration at the time of the crash.

136 He also points out that, in the circumstances of this case, reduction in glare resistance might have been a causal factor in the collision. He refers to experiments which show that an alcohol dose of 0.7 gm per kg reduced glare resistance in some subjects. I would emphasise here that Professor Starmer says it might have been a causal factor in the collision and that the alcohol dose of 0.7 grams per kilogram reduced glare resistance in some subjects.

137 His report concludes:-

“In conclusion, it appears that Mr Armstead’s blood alcohol concentration would probably have been near or within the middle range prescribed concentration for drivers and riders. As an experienced motorcyclist, he would have only been slightly to moderately impaired, depending on his tolerance to alcohol (and this should be established), but, apparently through no fault of his own, he found himself in a hazardous situation where the alcohol which he had consumed reduced his ability to cope.”

138 It also has to be borne in mind that the plaintiff was wearing a full head visor and the effects of the glare through the eyeglass and inside his helmet would have aggravated the effects of the oncoming light. I am satisfied that it is the experience of most drivers, who have not consumed alcohol, that the glare at night-time from oncoming headlights on high beam has the effect of reducing vision of the roadway almost to nil. From the time the plaintiff first saw the oncoming lights to the time his head struck the kerb he travelled somewhat less than 25 metres. At 30 kilometres per hour (8.28 metres per second) he would have covered this distance in under three seconds. I am satisfied that an alcohol free driver or rider would not have recovered full vision in this time particularly having regard to the fact that the plaintiff was engaged in trying to control his motor cycle whilst escaping from the path of the oncoming car.

139 The evidence satisfies me that the plaintiff did react appropriately in the circumstances and that he manoeuvred appropriately in the circumstances. With or without the effects of alcohol a fall from the bike was highly likely to occur. The essential cause of the gravity of the plaintiff’s injuries is that he was unfortunate enough to suffer a collision between the area of his forehead and the top corner of the cement kerb.

140 I am satisfied that this consequence was in no way related to his consumption of alcohol.

141 It is appreciated that in most cases one would find that a blood alcohol of 0.084grams per 100 millilitres would be a fault on the part of the plaintiff which contributed to the plaintiff’s share in the responsibility for his damage.

142 But one has to apply the provisions of section 9(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1965 to the facts as found in this particular case. The task is to reduce the damages to such extent that the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

143 In this particular case the situation which the unidentified vehicle created was of such a nature that I am satisfied (regardless of whether the onus be upon the defendant or the plaintiff), that his consumption of alcohol in no way contributed to the damage which he suffered.

144 It is very easy to say that in normal situations such a blood alcohol level would contribute to the damage which the plaintiff suffered in the light of findings of experiments on other people. Once, however, must be careful to look at the particular facts of the case and to apply the law to this particular case.

DUE INQUIRY AND SEARCH

145 It is not really in issue between the parties that due inquiry and search was made for the unidentified vehicle.

146 There is evidence that Mrs Goldsworthy prepared a pamphlet (Exhibit M) which she dropped into the letterboxes of houses near the accident scene and received no substantial help in identifying the vehicle. There is evidence of the insertion of advertisements in newspapers seeking help none of which resulted in any information leading to the identification of the vehicle.

147 The plaintiff was unconscious after the accident and suffered post traumatic amnesia for a period of some 3 or 4 weeks. He did not recall the circumstances of the accident until about a month later and then only partially. Attempts to identify the vehicle were commenced shortly afterwards.

148 The police were unable to take any action to locate the unidentified vehicle shortly after the accident because the people they interviewed were unaware of its involvement and the plaintiff was unconscious. The police attempted to interview the plaintiff at Royal North Shore Hospital on 10 March and again on 30 March 2000 and were informed that he was not then fit to be interviewed. See Exhibit 2.

376 The recommendation is for setup services costing $660.00 annualised at $220.00 and once off training costs totalling $2,460.

377 Installation of driver softwares and delivery are usually done as part of the initial purchase. There would however be the cost of installing non-standard items. The plaintiff would also have to be trained in their use. I would therefore allow a one off cost of 4 sessions at 2 hours plus travel amounting to $1,960.

378 The cost of an adjustable height desk of $880.00 written off over 6 years and $147.00 per annum plus a copyholder and disk boxes of $90.00 written off 4 years at $23.00 per annum, I consider reasonable.

379 Mr Smith also includes an allowance for home automation. These to some extent are already included within the architectural costs of the house and I would not allow them here.

380 Telephone technical support as needed is a reasonable requirement but I consider the $495.00 as excessive and would allow $200.00 per year only. I would also include within this $200.00 the allowance for warranty which may or may not be required.

381 Internet costs, being access fees to a broadband service, of $720.00 per annum appears high when there are many companies advertising broadband at $50.00 per month or $600.00 per year. However there are some additional costs including telephone lines and I would therefore allow for this $650.00 per annum.

382 I would not allow the cost of cable television. This is something that can be purchased if the plaintiff wants it as part of his general recreation but it does not in my view constitute a matter which should be included within these damages.

383 For consumables such as printer cartridges, electricity costs and household insurance an annual cost of $500.00 is nominated. This figure may be a norm for a healthy person but for the plaintiff his use of these items would limited and I would therefore allow him $150.00 per annum.

384 To summarise:-

ALLOWANCES FOR COMPUTER

ITEM	EST LIFE IN YEARS	COST	COST P.A.
Home Computer	4	2950.00	737.50
Printer and Scanner	4	588.00	147.00
CD Stacker	4	1721.00	430.25
SCSI card	4	132.00	33
Microphone	4	639.00	159.75
Trackball Mouse	4	639.00	159.75
Anti Virus Program	0	0	70.00
Special Software	5	900.00	180.00
Training	26	1960.00	75.38
Adjustable height desk	6	880.00	147.00
Copy holder, disk boxes	6	90.00	23.00
Telephone Technical Support and Warranty	1	200.00	200.00
Internet Costs	1	650.00	650.00
Consumables	1	150.00	150.00
11499.00	3162.63

385 The sum of $3162.63 per annum capitalised at 5% over 26 years equals $46,590.90.

HOLIDAY REQUIREMENTS

386 I consider most of the claim for holiday requirements as quite excessive. The assumptions upon which the report from Travel World are based are inapplicable to the plaintiff’s circumstance. He intends to move to Brisbane where he will be within reasonably close proximity to his family members.

387 I consider it reasonable to allow him the costs of 4 weeks holiday per annum. It is unlikely that he will require airfares. If he wishes to embark upon this then it is something for which he will have to pay and I consider it unreasonable to visit such costs upon the defendant.

388 Furthermore I have already allowed within the transport costs an allowance for use of the vehicle for the purpose of taking him on holidays. No additional amount should be allowed.

389 On top of this I have already allowed within the costs of carer a full-time carer on rotation for 24 hours per day plus a second for 3 hours per day. I am not satisfied on the probabilities that an additional carer is required if he does go away.

390 I consider it appropriate to include within the plaintiff’s damages the cost of an extra room to accommodate the carer at $232.50 per night for 28 nights and also sustenance of $100.00 for the carer for 28 days. These total $9,310 per annum which is equivalent to $178.42 per week. Capitalising this for 26 years at 5% per annum the result is $137,151.45 and this is the amount I allow for holiday requirements.

391 It is appreciated that the plaintiff may incur greater expenses in some years and lesser expenses in some years. What I have tried to do is to establish a fair average over the next 26 years.

COST OF FINANCIAL MANAGEMENT

392 On behalf of the plaintiff it is claimed that due to cognitive losses caused by the subject accident the plaintiff has difficulty in managing money, keeping track of paying bills and therefore requires financial advice for the establishment of his funds even though he does not require the services of the Protective Commissioner.

393 On behalf of the defendant it is submitted that no damages should be allowed under this heading. It is further submitted that the plaintiff does not have a tutor, no suggestion has been made that he would ask for or consent to or be made subject to an order under the Protected Estates Act. Furthermore the plaintiff considers he is able to manage his financial affairs.

394 Professor Jones did say in evidence that if the plaintiff were his patient he would recommend that he have some financial advice in the administration of any verdict he obtained. However the Professor did not indicate whether this was due to any mental deficit caused by the accident or whether it was due to the plaintiff’s lack of experience with substantial sums of money.

395 I have carefully considered the evidence of Dr Jungfer, Dr Buckley and the report of Mr Rawling (all of which have been set out earlier), and I am satisfied on the balance of probabilities that the only cognitive deficit which the plaintiff has is some slight lapses in his short-term memory. He is however capable of thinking things through. His answers to questions were logical. In short I am not satisfied on the balance of probabilities that he suffers from any mental deficit which would prevent him from managing his own funds.

396 I would, with respect, paraphrase what Professor Jones said and say that if he were my client I would recommend that he get financial advice. This is not on the basis of his mental deficit but rather on the basis that as a person in possession of a substantial sum of money he is vulnerable to people who might try to relieve him of it and also because he is totally lacking in experience in handling such sums.

397 In the case of The Nominal Defendant v Gardikiotis 186 CLR 49, Brennan CJ, Dawson, Toohey and Gaudron JJ said at p. 52:-

“True it is that, but for the accident the respondent would not have a verdict to invest and, thus, would not need assistance in its management. But it is contrary to commonsense to speak of the accident causing the need for assistance in managing the fund constituted by her verdict monies in circumstances where her intellectual abilities are not in any way impaired.”

398 McHugh J in the same case said at p. 55:-

“But a different area is reached when the plaintiff seeks damages, not for expense necessarily incurred as the result of a disability caused by the defendant’s negligence, but for an expense arising merely from the size of an award of damages and the exercise of the choice by the plaintiff as to how to invest those damages. The expense of exercising that choice is not the consequence of the plaintiff’s injury. It is the result of the plaintiff’s decision to invest his or her money (usually in a professionally managed fund) rather than to spend it or to invest in a fixed asset or some other form of investment. It is true that such an expense would have not been incurred but for the defendant’s negligence. But the Common Law of Australia has rejected the “but for” test as the legal test of causation although “applied as negative criterion of causation, that test has an important role to play in the resolution of the question”.

In this particular case I am satisfied on the probabilities that any cost of financial management is an expense not necessarily incurred as the result of a disability caused by the defendant’s negligence but for an expense arising merely from the size of an award of damages and the exercise of the choice by the plaintiff as to how to invest those damages.

399 Accordingly I would not allow the cost of financial management.

SUMMARY

400 Set out below is a summary of the amounts allowed in the plaintiff’s damages.

ITEM	AMOUNT ALLOWED
Non Economic Loss	341000.00
Past Economic Loss	176163.55
Future Economic Loss	378062.00
Past Superannuation	14093.08
Future Superannuation	34025.58
Past Out of Pocket Expenses	137632.20
Future Medical Expenses	136277.86
Past Care	129937.00
Wheelchair and Other Special needs	76399.61
Future Care	4078076.48
Future Chemist Expenses	84164.96
Para/Quad Needs	80329.15
Gardener/Handyman	26251.10
Transport Costs	89631.56
Architectural Needs	437236.86
Computer Needs	46590.90
Holiday Requirements	137151.45
Financial Management – Nil Allowed	00.00
TOTAL	$6,403,023.34

401 I make the following findings:-

i. The plaintiff’s injuries were caused by the negligent driving of a motor vehicle the identity of which cannot after due inquiry and search be ascertained.

ii. The plaintiff was not guilty of contributory negligence.

iii. The plaintiff’s damages are assessed at $6,403,023.34

402 At the request of counsel I reserved the questions of interest and costs and I invite submissions on those matters. Counsel are also at liberty to address me on perceived mathematical errors.

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