Barnes v Pacella - [2009] WADC 139

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BARNES -v- PACELLA [2009] WADC 139

CORAM: STAVRIANOU DCJ

HEARD: 8-12 JUNE 2009

DELIVERED : 4 SEPTEMBER 2009

FILE NO/S: CIV 1537 of 2006

BETWEEN: FINDLAY JOHN BARNES
Plaintiff
AND
MICHAEL PACELLA
Defendant

Catchwords:

Damages - Personal injury - 39-year-old mechanical fitter - Extent of loss of earning capacity - Turns on own facts

Legislation:

Evidence Act 1906, s 79C
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C

Result:

Judgment for the plaintiff in the sum of $882,051.54

Representation:

Counsel:

Plaintiff: Mr J G Staude
Defendant: Mr P E Jarman

Solicitors:

Plaintiff: Kakulas Legal
Defendant: Jarman McKenna

Case(s) referred to in judgment(s):

Malec v JC Hutton Pty Ltd [1960] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission(1995) 182 CLR 1
Paul v Rendell (1981) ALR 469
Southgate v Waterford (1990) 21 NSWLR 27

STAVRIANOU DCJ:

Introduction

The plaintiff, Findlay John Barnes ("Mr Barnes") is aged 39 years, having been born on 11 August 1970.
On 29 November 2002 Mr Barnes was the rider of a motorcycle which was involved in a collision with a motor vehicle ("the accident") then being driven by the defendant. In this action Mr Barnes claims damages for personal injury arising out of the accident.
Liability in negligence is admitted and the matter comes before the Court as an assessment of damages.

The accident

At about 3.15 pm on the day of the accident Mr Barnes was riding his motorcycle in an easterly direction along South Street, Beaconsfield. At the same time the defendant was driving his motor vehicle north along Edward Street, Beaconsfield when he cut across the path of Mr Barnes' motorcycle and collided with it. In the accident Mr Barnes' knee was struck by the defendant's motor vehicle. Mr Barnes was catapulted over the vehicle and landed on his back in the middle of the road.
He was taken to hospital by ambulance where he was examined and admitted.
The principal injuries which Mr Barnes suffered in the accident were fractures to the left femur and the left acetabulum. He also suffered injuries to his left knee and ankle, back and both elbows.
In hospital Mr Barnes was under the care of an orthopaedic surgeon who operated on him in relation to his injuries. Eventually on 11 December 2002 Mr Barnes was discharged. He has been re‑admitted to hospital on a number of occasions for further surgery.
Mr Barnes suffered considerable pain in hospital and was prescribed painkillers. When he returned home he received domestic and personal assistance from his wife.
Mr Barnes was unfit to return to any form of employment until 8 December 2003.

Background, work history and evidence of Mr Barnes

Mr Barnes was married on 15 November 2003. He has one child born on 12 April 2008.
Mr Barnes completed his education after Year 11. He then completed a trade certificate in engine reconditioning.
In 1988 Mr Barnes commenced employment with Johnson Truck & Marine in Geraldton as an engine reconditioner. His employment in that capacity continued until about 1992. In the early 1990s he also worked as a deckhand on a scallop trawler.
Between 1992 and 1994 Mr Barnes was employed as a fitter/deckhand on fishing trawlers.
In 1994 Mr Barnes commenced employment as a mechanical fitter on a mine site in Bullfinch. His duties included maintenance of excavators, rock crushers, chemical pumps and fixed plant. Mr Barnes would work three weeks on and one week off. He remained in that employment for approximately 12 months. In 1995 he worked for Wiluna Gold for approximately 12 months. At about that time he met his future partner and wife.
Between 1995 and 1996 Mr Barnes worked as a mechanical fitter at mine sites in the Goldfields and workshops in Welshpool.
Between 1996 and 1998 Mr Barnes was employed by Metzke Engineering, Canning Vale as a mechanical fitter. This involved working on drilling rigs and included some work in remote areas. On one occasion he was involved in the installation and testing of a drilling rig in Newman.
Between 1998 and 1999 Mr Barnes was employed by James Hardie Welshpool performing maintenance and operation of fibre cement production equipment.
In 1999 Mr Barnes was employed as a mechanical fitter by John's Engineering & Cranes and Princess Margaret Hospital.
In 2000 Mr Barnes commenced employment with MG Kailis Pty Ltd ("Kailis") in Fremantle where he remained until October 2006. His duties involved the maintenance and repair of marine equipment. On occasions he was required to service fishing vessels located in Exmouth.
The nature of Mr Barnes' pre‑accident duties were outlined by John Kenneth Atkinson who is the human resources manager of Kailis. Mr Barnes' duties involved the repair and maintenance of engines in vessels and required him to get into the engine rooms of vessels through hatches and to go up and down ladders.
Mr Barnes enjoyed his employment at Kailis. While still employed at Kailis he was on one occasion able to work for two or three months repairing tuna fishing vessels in South Australia. In 2000 Mr Barnes participated in a tuna tow.
Mr Barnes gave evidence that whilst employed by Kailis he had an opportunity to take five weeks unpaid leave. This enabled him to work on a scallop fishing vessel in Carnarvon at a higher rate of remuneration.
An issue between the parties is whether Mr Barnes, but for the accident, would have ceased employment with Kailis and commenced working in the mining industry on a significantly higher income. That employment would have been outside the Perth metropolitan area in a remote location probably in the North of the State.
Mr Barnes gave evidence that as at November 2002 he was earning $750 per week gross at Kailis. It was his evidence that this was at about the time the mining boom started. It was his evidence that if he had been able to secure employment on a mine there was a chance for him to earn between $120,000 to $130,000 per annum. As he had been mining in the past he was thinking of getting back into mining primarily for the money.
Mr Barnes gave evidence that when he returned to Kailis after the accident there were insufficient light duties available. He described the performance of his duties after the accident as a struggle.
Mr Barnes remained with Kailis from 8 December 2003 until October 2006. He gave evidence that in that period he was nowhere near his pre‑accident work capacity and found it difficult moving around on boats. At the end of each day he was in agony. Because of the persistence of pain he decided to seek alternate employment which he secured at the Araluen Golf Resort ("Araluen").
On 3 October 2006 Mr Barnes began work at Araluen. His duties involved the maintenance and repair of turf care equipment including mowers, tractors and spray units. The duties involved less strain on Mr Barnes' back than when he was at Kailis. He remained employed at Araluen for 12 months and then applied for a position as a mechanic at the Melville Glades Golf Club ("Melville Glades").
The position at Melville Glades was not immediately available and for that reason Mr Barnes obtained employment with Dogtainers. The employment involved the transport of domestic animals within the metropolitan area. He described this position as a fill‑in position until the Melville Glades position became available in January 2008.
Mr Barnes remains employed at Melville Glades. The work involves maintenance and repair of turf equipment. Mr Barnes gave evidence that he works Monday, Tuesday, Thursday and Friday for a total of 32 hours. By having Wednesdays off he is able to have a rest from work. This also enables his wife to work and for him to care and spend time with his child.
Mr Barnes gave evidence that he does not know how long he will be able to continue at Melville Glades in the sense of physically being able to do the job. It was his evidence that he is unable to participate in overtime.
Mr Barnes gave evidence that he has experienced considerable pain associated with the injuries he suffered in the accident. He has been restricted in a range of recreational and sporting activities.
In 2006 he unsuccessfully applied for a position as a motorcycle salesman. The effect of his evidence was that his lack of experience was a problem for him in securing that employment.

Evidence as to Mr Barnes' intentions and employment

By about the time Mr Barnes had reached the age of 25 years he was predominantly working in Perth. He gave evidence that as the relationship with his wife developed they began considering their futures.
Mr Barnes' wife Joanne Carol Barnes gave evidence that he was not happy working at Kailis, and that before the accident he was contemplating engaging in different employment. She gave evidence that no firm decisions had been made, but that mining was an option because of the money. She was a truthful and impressive witness.
Mr Barnes gave evidence that before the accident he had spoken to an employee of Kailis about leaving that employment.
Travis Noel Sheehy is a friend of Mr Barnes and gave evidence that he is a marine refrigeration mechanic who has been employed by Kailis for 10 years. He gave evidence he had spoken to Mr Barnes before the accident and Mr Barnes had told him that he was going to go back into mining or heavy industry or something like that. The reason given by Mr Barnes was that there was good money in that type of employment.
Mr Sheehy was thoroughly cross‑examined about his conversation with Mr Barnes. In the end I am satisfied that Mr Sheehy was a credible and reliable witness and that the conversation with Mr Barnes did occur as he described.
Mr Barnes gave evidence that employment on mining sites involves a 12 hour day working on rough terrain. It was his evidence that he had not gone to work in the North in the year before the accident because the money was not that good. He was asked about whether he would have remained for the rest of his working life in the North and he said he did not know, but there was a "fair chance" that he would have. He had discussed the matter with his wife and had discussed moving to a country town, but no plans had been made.
Mr Barnes gave evidence of employment opportunities which he could have taken up in the mining industry. During his evidence he produced a number of advertisements relating to employment on mine sites. These were dated between July 2005 and January 2008 and indicated rates of pay of up to $44 per hour for heavy duty fitters. One advertisement dated 16 July 2005 indicated a salary of $122,000 per annum for a person experienced with heavy mining equipment. This involved working two weeks on, one week off. In his evidence he said the advertisements were "Jobs and money that I'm missing out".
Mr Barnes gave evidence that he has considerable experience working in the mining industry. In order to provide security for his family he would have taken the opportunity to work in the North. He said he had no doubt that he would have obtained one of the positions which had been advertised. He had a good chance of obtaining employment and referred in his evidence to the fact he had never had any error reports concerning his work.
Trent Joseph Bettesworth has been the operations manager for Weldtronics Maintenance & Technical Services Pty Ltd since September 2007. Mr Bettesworth is a friend of Mr Barnes. However I did find his evidence was given in an objective and straightforward manner. I accept his evidence as reliable and truth. It was his evidence that the Weldtronics business is predominantly labour hire to the mining, resource, oil and gas industry. His role as operations manager involved placement of employees with clients. These included boilermakers, mechanical fitters and riggers.
In 2004 he had been employed by the Skilled Group of companies. Skilled is one of Australia's largest labour hire companies. His duties involved the placement of tradespeople with employers.
It was Mr Bettesworth's evidence that from 2004 he had placed in employment or hired to clients persons in positions as mechanical fitters or fixed plant mechanical fitters. It was his evidence that when he started with Skilled there was a huge demand for skilled labour, so much so that often Skilled was unable to meet its clients' requirements. The persons he had placed had earned an equivalent of over $125,000 per annum. The persons placed included boilermakers and fitters and were paid up to $44 per hour. He explained that persons placed by him work two weeks of 84 hours and then have a week off. It was his evidence that in the six to nine months before trial there had been a dramatic downturn in demand.

Report of Charles Mulvey

Mr Barnes applied at trial to tender, a report dated 15 August 2008 written by Professor Charles Mulvey. The tender of part of the report was objected to. As the tender was sought to be made just prior to closing submissions the parties agreed that the admissibility of the report should be dealt with in this judgment.
The report was divided into three parts. The first part which appeared under a heading of "Heavy Duty Fitter: Average weekly earnings 2003 ‑ 2007" was not objected to and that part of the report can be received.
The first part notes that in the most recent Census of Population conducted in August 2006 the average weekly earnings of a full‑time male heavy duty fitter in Western Australia was $1,315. By application of an indexation factor to that sum a calculation of average weekly earnings for each of the years between 2003 and 2008 is made. The calculated rate as at August 2003 was $1,085 per week and increasing each year to a sum of $1,488 per week in May 2008.
The second part of the report is headed "Earnings of HD Fitters in the Mining Industry 2004 – 2008". The tender of this part of the report was objected to.
The tender of the third part of the report headed "Employment Availability" was not pursued.
Mr Barnes sought to tender the second part of the report pursuant to s 79C of the Evidence Act 1906.
The effect of section 79C of the Evidence Act 1906 is to provide that statements in a document of fact or opinion made by a person who may reasonably be supposed to have personal knowledge of the matters dealt with by the statement will be admissible as evidence of that fact or opinion. The maker of the statement (described as a qualified person) must be called as a witness unless certain exceptions apply, one of which being that the witness was out of the State and it was not reasonably practicable to secure his attendance.
It was accepted that at the date of hearing Professor Mulvey was out of the State and it was not reasonably practicable to secure his attendance.
The second part of the report refers to and repeats information as to market surveys conducted by a certain firm. It appears the survey information referred to in the report was accessed from a website maintained by the firm.
The defendant's submission is that the second part of the report does not contain the expression of an opinion. In the defendant's submission what is contained in the report recites information obtained from a search of a website. It is submitted that the report has simply copied information from the website.
Mr Staude submitted on behalf of Mr Barnes that the evidence of Professor Mulvey was not opinion evidence, but evidence Mr Barnes is able to give because he is qualified and able to identify the source of the information. The submission is that the report was admissible as a statement made by a qualified person who might reasonably be supposed to have had at the relevant time personal knowledge of the matters dealt with by the statement.
There is no expression of opinion in the second part of the report. There is no evidence that the website surveys referred to are reliable.
I am not satisfied that Professor Mulvey had personal knowledge of the information reproduced from the website. Accordingly, the second part of the report is inadmissible.

Medical evidence relating to Mr Barnes' injuries and the extent of his incapacity

The medical evidence was not generally in issue. There is no suggestion of any exaggeration of symptoms or that Mr Barnes is not an accurate historian.
The evidence of the treating specialist Mr Kimberly and other medical practitioners who have reviewed Mr Barnes establishes that the principle injuries suffered by him in the accident were:
(a)Fractured left acetabulum;
(b)Closed comminuted fracture of the mid shaft of the left femur;
(c)Fractured left patella;
(d)Moderate to severe ligament damage within the left knee joint.
Mr Kimberley has been the treating orthopaedic surgeon throughout and gave oral evidence on behalf of Mr Barnes.
Mr Kimberley noted in a report dated 13 February 2003 that Mr Barnes had been admitted to hospital on 29 November 2002 and discharged on 11 December 2002. During that time two major operative procedures were performed. The first on 30 November 2002 involved fixing of the left patella and the insertion of an intermedullary nail. The second procedure on 6 December 2002 involved open reduction and fixation of the left acetabulum.
Mr Kimberley wrote a report dated 13 February 2003 in which he opined that Mr Barnes was totally unable to do any form of physical work and would be severely restricted in any sedentary form of activity with regards to work.
Mr Kimberley reviewed Mr Barnes and wrote a report dated 25 March 2003 in which he noted that the fractures of the acetabulum and patella had healed.
On 31 March 2003 Mr Kimberley again operated on Mr Barnes at which time a bony fragment was removed from the femur and the patella wires were removed.
On 19 May 2003 Mr Kimberley did further repairs to Mr Barnes' left patella.
On 21 April 2004 Mr Kimberley removed wires and screws from the knee and screws from the femur.
Mr Kimberley wrote a report dated 18 May 2004 in which he opined that Mr Barnes had experienced ongoing neck and back pain since the accident which were entirely related to the accident.
Mr Kimberley wrote a report dated 27 May 2009 following a review on 23 April 2009. In the report he opined that Mr Barnes' medical condition had plateaued. Mr Barnes continued to experience left hip pain, left femur pain, left knee pain and instability, an altered gait pattern and lumbar spine related pain. He noted that the lumbar spine has deteriorated to some degree as had the hip and knee pain.
Mr Kimberley had seen Mr Barnes about two weeks before trial. It was his evidence that prior to that consultation he had been mainly dealing with the injuries to the left hip, left knee and left leg. In the consultation he considered the injuries to the right elbow and the left ankle.
In Mr Kimberley's view the right elbow showed a degree of post‑traumatic arthritis. There was some loose bone demonstrated on a scan which was preventing full extension. It was his view the injury was partly accident related and partly related to the subsequent rehabilitation when Mr Barnes was on crutches for a number of years. It was his view arthroscopic surgery was appropriate to remove the loose bone. A revision would be required in five to 10 years. The arthroscopy should in his view be performed reasonably soon.
The left ankle symptoms were in Mr Kimberley's opinion the result of ligament damage and a ganglion which had developed through joint damage. Mr Kimberley considered that the ganglion could be removed at a cost of about $4,000. At the same time it would be possible to trim and tidy any damage that has occurred. It was his view the prognosis in relation to the ankle was 10 to 15 years of reasonable function with possible difficulties thereafter.
Mr Kimberley considered that Mr Barnes' current disabilities are mainly related to pain, instability and weakness in the left knee, left hip pain and lumbar spine pain. In his opinion the instability and pain involving the left leg was leading to Mr Barnes' altered gait which was affecting his back and would do so in a cumulative fashion. The back problem had in his view got worse over the years.

In his report dated 27 May 2009 Mr Kimberley stated:
"This gentleman's accident is the chief ongoing cause for his unfitness for his previous duties and the results of the injury will have a direct affect on his employability in the future and may well shorten his working life as well as lead him to have to change or (sic) nature of his employment to suit the disabilities that he has."
Mr Kimberley opined that Mr Barnes has not at any stage been fit to resume his pre‑accident employment to its full level. In his report dated 27 May 2009 he opined that Mr Barnes will have to continue to change the nature of his employment over time in order to avoid further operative procedures and further morbidity. Mr Kimberley was of the view that working as a mechanic was increasing the wear and tear on Mr Barnes.
Mr Kimberley's evidence concerning the effect of further surgery included the following:
"… For a knee replacement I'd say, once again, 12 weeks off - actually it would be 12 weeks off light duties and probably for more physical‑type duties, it would take as long as six month before someone could return. And one would argue, if you've had a knee replacement you probably shouldn't be returning to physical duties. Most people tend to retire or just do office duties after a knee replacement. It's not really meant to do physical work on.
After a knee replacement? ‑ Theoretically, anyway, you know, what the studies say. I'm sure there are people out there doing it, but it's not really what surgeons agree is appropriate.
STAUDE, MR: And again, moving up, the - the left hip ‑ ‑ ? ‑ The left hip is - the issue with the left hip is he's had a fractured acetabulum, so the socket of the hip was fractured, and with that there was cartilage damage. The fracture was repaired with plates and screws. There is evidence on recent x‑rays that there is arthritis within
the hip, that he has post-traumatic arthritis, and he has also had symptoms, and I feel that within five years he'll need to have the hip replaced, on that basis.
And does that procedure also involve a period of time off work? ‑ Certainly; I think three months off work for that.
Okay? ‑ Hip replacements have a better reputation than knee replacements in terms of allowing people to return to duties, but, once again, there is a slight issue amongst surgeons as to whether it's appropriate to do physical work in this instance."
Mr Kimberley gave evidence he would not be doing hip and knee replacements to enable Mr Barnes to go back to heavy duties.
Surgery would in Mr Kimberley's view increase function in the sense of reducing pain, but the surgery would not result in Mr Barnes resuming his pre‑accident occupation.
Mr Kimberley considered Mr Barnes' current employment should be regarded as being a temporary arrangement over a period of between two to five years. Mr Barnes' future employment in Mr Kimberley's view should involve minimal lifting, carrying, squatting and walking on uneven ground. In his view Mr Barnes' future employment needs to be light physical work.
Mr Phillip Hobson Hardcastle is a consultant orthopaedic surgeon who first saw Mr Barnes on 6 July 2006 at the request of Mr Barnes' general practitioner Dr Berns. Clinical examination demonstrated a good range of movement without any obvious neurological deficit. In his evidence Mr Hardcastle described the problem as being mainly mechanical low back pain. It was Mr Hardcastle's opinion that Mr Barnes had reached his maximal level of improvement in relation to the injuries to the pelvis and left lower limb. Mr Hardcastle reviewed the radiological evidence and considered Mr Barnes had long‑standing pre‑existing degenerative change involving disc and facet joints.
Mr Hardcastle opined that Mr Barnes had a significant limitation with respect to weight bearing including walking, negotiating stairs and ladders as well as squatting. He considered that the lower back symptoms will increase with time and Mr Barnes would need to consider alternative work of a less physical nature within five years. Mr Hardcastle considered that Mr Barnes was likely to develop degeneration in the left knee in the long term and probably have to retire by the age of 60.
Mr Hardcastle reviewed Mr Barnes on 15 May 2008 at which time he considered that there had been no drastic change in relation to the pelvis and lower limb.
As to future treatment Mr Hardcastle considered that a spinal fusion was a long way off.
Mr Hardcastle's most recent review of Mr Barnes was on 19 May 2009. In his report dated 25 May 2009 Mr Hardcastle opined that the prognosis was poor for the left hip and left knee and Mr Barnes would require joint replacement surgery.
Dr John Balliol Salmon is a medical practitioner who for 25 years has practised as a pain specialist. He examined Mr Barnes on 31 August 2006 at the request of Dr Berns. Dr Salmon provided a report dated 31 August 2006 in which he opined that Mr Barnes had developed persistent pain and related psychological dysfunction and disability following the accident.
It was Dr Salmon's view that Mr Barnes was struggling to continue his work as a marine fitter. He recommended a course of cognitive therapy. He also prescribed the medication Lyrica. Dr Salmon's opinion was that Mr Barnes' clinical presentation was consistent with significant neurosensitisation predominantly in the L4 and L5 distributions. For that reason he prescribed Lyrica and indicated an x‑ray guided lumbar epidural and left L4 and L5 sleeve injection and pulse radiofrequency ganglionotomy treatment may be of benefit. In his report he indicated that Mr Barnes should be looking at light work options in the future.
Dr Salmon provided a report dated 8 April 2008. In his report and evidence he opined that Mr Barnes was a candidate for a trial of spinal cord stimulation. The claim for future treatment based upon the opinion of Dr Salmon was not pursued at trial.
Dr Simon Harold Berns is a general medical practitioner. Dr Berns gave evidence that he had been involved in the management of Mr Barnes in relation to the accident.
It was Dr Berns' evidence that he referred Mr Barnes to physiotherapy for treatment in relation to his orthopaedic injuries. He considered that further physiotherapy would be of limited value.
Dr Berns noted that Mr Barnes was using Nurofen and Paracetamol for pain relief together with a local cream which he was rubbing into his leg and thigh. Insofar as Mr Barnes' psychological and psychiatric symptoms are concerned Dr Berns was of the view that he does suffer from mood swings, but has not diagnosed Mr Barnes as suffering from depression.
Mr Geoffrey James Gee is a specialist in pain management. He reviewed Mr Barnes and noted that upon examination he continued to experience lower back pain, left buttock pain and left leg pain.
Mr Gee opined that Mr Barnes may ultimately require a left hip replacement.
It was Mr Gee's opinion that the left hip and knee pain that Mr Barnes was suffering was mechanical and that there may be some neural pain associated with the hip and knee. It was his view Mr Barnes had significant injuries to his pelvis, hip, femur and knee which was in his view the reason for his ongoing pain.
Andrew Craig Harper is an occupational physician who reviewed Mr Barnes at the request of his solicitors.
It was the opinion of Mr Harper that Mr Barnes in his work as a mechanic was exceeding his work capacity. He considered Mr Barnes could work at a bench but would need to avoid heavy lifting. He considered it was inappropriate for Mr Barnes to continue in his current employment. His condition would in his view deteriorate with time irrespective of what Mr Barnes does.
In Mr Harper's view knee replacement or hip replacement surgery were likely to decrease pain and increase function but did not consider that the surgery would enable Mr Barnes to return to mechanical fitting. Following surgery Mr Barnes should not be putting undue stress on the hip and knee joints.
Mr Harper recommended vocational assessment. He considered Mr Barnes was totally incapacitated for his pre‑accident occupation as a marine fitter. He considered Mr Barnes could carry out supervisory work. The emphasis however was that the duties be sedentary.
The defendant did not call any witnesses and tendered by consent the reports of two orthopaedic surgeons and a psychiatrist. Mr Michael Alexeeff, an orthopaedic surgeon wrote a report on behalf of the defendant dated 17 September 2008. He considered that Mr Barnes had had a major injury to his left femur, pelvis, left hip joint with a significant left knee injury. He noted that Mr Barnes was restricted in the type of work he can perform. When he examined Mr Barnes he considered he was restricted in the performance of heavy manual work. The restrictions were likely to be indefinite. He did not consider there was a requirement for domestic assistance.
Mr Edibam wrote a report dated 1 March 2006 at the request of the defendant's solicitors. He noted in his report that Mr Barnes has suffered significant multiple injuries in the accident. The injuries included fractures to the left knee, hip and femur and also soft injuries to both elbows and the right shoulder, and back and neck pain. He considered that it was possible that in the long run Mr Barnes' working life will be shortened if he develops degenerative changes in the left hip and knee. The chance of this occurring was in his opinion fairly high compared to the general population.
Mr Barnes was reviewed on 4 September 2008 by Mr Victor Cheng, consultant psychiatrist. He wrote a report dated 4 September 2008 and concluded that Mr Barnes was not suffering from any psychiatric illness. In his view Mr Barnes emotional symptoms were consistent with the normal range of emotional experience considering his then current situation. He presented as normal on the mental state examination.
Dr Salmon in his report of 31 August 2006 referred to Mr Barnes having psychological dysfunction related to accident caused injuries. Dr Berns in his report dated 5 May 2004 referred to Mr Barnes suffering from some post‑traumatic stress disorder.
I accept based upon the evidence of Mr Cheng, who is a specialist psychiatrist, that Mr Barnes does not have any kind of psychiatric disorder. He has what is a normal reaction to the severe injuries which has caused ongoing pain.
Insofar as there is any conflict between the evidence of Mr Kimberley and the other medical practitioners who had seen and reviewed Mr Barnes, I would prefer the opinion of Mr Kimberley. He was the treating specialist throughout. He had seen Mr Barnes on a number of occasions and the views he expressed as to the injuries, past and future treatment, prognosis and residual disabilities were clear, concise and logical.

Assessment and findings

Mr Barnes was a reliable and truthful witness and I have no hesitation in accepting his evidence. There was no issue in relation to his credibility. He has done the best he can to deal with the severe injuries sustained and consequent residual disabilities.
At the date of accident Mr Barnes was 32 years of age and in good health. He described the pain he experienced after the accident as the worst pain that he could imagine.
Mr Barnes in his evidence described his injuries in detail. The description he gave was confirmed by Mr Kimberley.
I accept and find that as a result of the accident Mr Barnes suffered the following injuries:
(a)Fractured left acetabulum;
(b)Comminuted fracture of the left femur;
(c)Compound injury to the left knee associated with an open fracture of the patella;
(d)Severe ligament damage within the left knee joint;
(e)Soft tissue trauma to the cervical and lumbar spines;
(f)Injuries to both elbows;
(g)Soft tissue trauma to the right shoulder;
(h)Injury to the left ankle.
The injuries to the left hip, left knee, back and left ankle have had the most significant impact upon Mr Barnes. The injuries have caused considerable pain and he has been left with a significant disability.
As a result of his injuries Mr Barnes required surgical procedures to be performed as described by Mr Kimberley. The procedures were undertaken in November 2002, December 2002, March 2003, May 2003 and April 2004. Mr Barnes was discharged from hospital on crutches.
He has had physiotherapy and hydrotherapy treatment and been required to take medication, including painkillers. His treatment has been extensive.
Following each operative procedure Mr Barnes required and was provided considerable assistance from his then partner who was required basically to do everything for him in the home. Before the accident Mr Barnes and his wife would share equally household responsibilities and the performance of domestic duties. For a period of time he was unable to do gardening. He is now able to do gardening and mow the lawn.
Mr Barnes swims twice a week to try to develop muscles in the left leg. He no longer attends physiotherapy.
Mr Barnes has extensive scarring to the left side of his body which I had an opportunity to view during the course of the trial. The scarring constitutes a cosmetic disability.
He attends his general medical practitioner regularly, for review but has not received treatment for some time. For a year after the accident his pelvis was still sore and unstable, and resulted in sharp pain and aching pain around the back.
The description of the effect of the accident upon Mr Barnes given in his evidence was not challenged. In any event his evidence was supported by the evidence of his wife and his mother‑in‑law Carol Ann Crossley, each of whom I found to be truthful and reliable.
I am satisfied that Mr Barnes is a highly motivated and hard‑working individual. The evidence of Mr Christopher John Reid of Dogtainers and Mr Michael John Brunswick of Melville Glades supports that finding.
The prognosis is that Mr Barnes' disability will continue and he will probably require hip and knee replacement. Surgery may assist his level of pain and functioning, however will not allow him to return to work as a mechanical fitter.
As far as recreational activities are concerned, Mr Barnes gave evidence that he did enjoy surfing and was now unable to engage in that activity. He is able to play golf and continues to enjoy riding motorbikes.
He has in the seven years since the accident lost the opportunity to obtain the benefit of his employment qualifications and experience. That loss is present and continuing.
Mr Barnes and the defendant were represented at trial by experienced and competent counsel who made detailed submissions as to each head of damage.

General damages

The general damages in this case are required to be assessed in accordance with s 3A to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943.
Non‑pecuniary loss is defined in the Act as pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
Subsection (2) of s 3C provides:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded."
Subsection (3) of s3C provides:
"(3)The maximum amount of damages that may be awarded for non-pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case."
Amount A is at present $327,000.
In Southgate v Waterford (1990) 21 NSWLR 27 the New South Wales Court of Appeal considered the provisions of s 79(2) of the Motor Accidents Act 1988 which provided that the amount of damages to be awarded for non economic loss for personal injuries suffered in a motor vehicle accident should be a proportion, determined according to severity of that loss, of the maximum amount which may be awarded. In their joint judgment Gleeson CJ, Kirby P and Meagher JA said at 440:
"There are a number of ways by which trial Judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for 'non-economic loss', it is appropriate for the trial Judge to consider and to make findings on those elements in the evidence which are relevant to such loss. This will require the Judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the Judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000, but in a ratio which the Judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'."
The injuries suffered were severe. There has been extensive treatment and Mr Barnes has significant disabilities.
The range of assessments provided by counsel was between 35 per cent to 50 per cent of a most extreme case.
I find that the plaintiff's initial injuries and symptoms, their progression and treatment, loss of amenities, pain suffered, the residual disabilities and effect on enjoyment of life, puts the plaintiff's position at 50 per cent of a most extreme case. I therefore assess general damages in the sum of $163,500.

Loss of earning capacity

Mr Barnes is a qualified fitter with experience working on remote mine sites. He has been a hard worker and has been engaged in a variety of different occupations in the city and in the country. He has worked at mine sites as a fitter and his duties have included the maintenance of heavy machinery.
Mr Barnes' claim for past loss of earning capacity is put in two ways. First, that he would have continued in his employment with Kailis as a marine fitter. Second, that he would have sought and obtained work as a mechanical fitter at remote mine sites within 12 months of the accident. If he could not obtain that employment then it is submitted he would have continued with Kailis.
As at the date of accident Mr Barnes was employed by Kailis in Fremantle and receiving $550 nett per week without overtime. His duties included engine reconditioning and mechanical fitting and he worked 38 hours per week. Before the accident he had also been involved in tuna and scallop fishing. A claim for loss of earning capacity based upon either of these sources was not pursued.
After the accident Mr Barnes struggled to perform light duties at Kailis. There was aggravation of the left leg, knee and hip pain. Eventually he sought alternate employment involving less bending or lifting at Araluen. The effect of working was to increase pain.
On 21 January 2008 Mr Barnes commenced his current employment at Melville Glades as a mechanic.
I accept as Mr Kimberley has said that the accident is the cause of Mr Barnes' unfitness for his pre‑accident occupation at Kailis. The injury has affected his employability in the future and may well shorten his working life as well as lead him to have to change the nature of his employment to suit the disabilities that he has. The unfitness is permanent.
I am satisfied that because of the injuries he sustained in the accident Mr Barnes has lost the capacity to engage in employment as a mechanical fitter on a mine site.
I accept that in 2007 Mr Barnes did suffer from testicular cancer and that there was a consequent period of incapacity. I have not taken that period into account in the assessment of loss of earning capacity.
In about 1994 Mr Barnes had met his future wife and by about 1996 his employment was essentially within the metropolitan area of Perth.

The defendant submits that Mr Barnes would not have availed himself of the opportunity to work in the north‑west. This is because Mr Barnes was a person with strong family connections who would not have wished to leave his partner. Further, it is submitted that the evidence does not establish that Mr Barnes would have obtained work as a mechanical fitter in the North of the State.
Before the accident Mr Barnes did discuss with Mr Sheehy the prospect of working in the north‑west. However, he did not take any steps or make any enquiries concerning that employment.
I accept that Mr Barnes has a strong commitment to his family. However the increased remuneration he would have received from working outside the metropolitan area and in a remote area probably in the North would have provided security and helped to establish the family. He had in the circumstances very good reason to further utilise his earning capacity and receive remuneration beyond what he was achieving at Kailis. He had worked outside the Perth metropolitan area in the past.
I do not accept that Mr Barnes was at Kailis as a career. This is clear from his discussions with Mr Sheehy and his wife.
I accept that but for the accident Mr Barnes would have taken steps to secure employment in more remunerative employment in the North.
There were positions available from 2005. Mr Barnes was qualified and experienced.
There should be an allowance made to Mr Barnes for the lost opportunity to exercise his earning capacity in a more highly remunerated position than he had at Kailis.
In Medlin v State Government Insurance Commission (1995) 182 CLR 1 the High Court (at p 3) identified that a court in assessing loss of earning capacity must be satisfied as to two matters:
"The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injuries. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the 'diminution of ... earning capacity is or may be productive of financial loss' (Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347)."
In Malec v JC Hutton Pty Ltd [1960] HCA 20; (1990) 169 CLR 638 the approach to the assessment of the likelihood of future or potential events occurring was dealt with by the High Court. Deane, Gaudron and McHugh JJ in their joint judgment said at 642 ‑ 643:
"... When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219; McIntosh v Williams [1979] 2 NSWLR 543 at 550 ‑ 551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."
Brennan and Dawson JJ stated at 639, that the ascertainment of future earning capacity involves an evaluation of possibilities as distinct from establishing a fact as a matter of history. Their Honours said at 639 ‑ 640:
"Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past."
Lord Diplock in Paul v Rendell (1981) ALR 469 at 471 expressed the matter of assessment as follows:
"... The assessment of economic loss involves the double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured."
Mr Barnes filed detailed particulars of past loss of earning capacity. As I have said, the claim is put on two basis. The first basis is that Mr Barnes would have remained working at Kailis. The defendant accepted the calculations made on behalf of Mr Barnes in his particulars as to the claim on that basis save for the claim for overtime. No issue was taken as to any of the calculations.
Mr Barnes was unfit for work from the date of the accident until 8 December 2003 when he was certified fit for light duties.
Kailis paid out all Mr Barnes' sick leave and annual leave in that period being a total of $3,700.01. That sum was refunded by the insurer for the defendant to Kailis. The defendant's insurer has made advances to Mr Barnes of $28,337.80 and made repayment of leave entitlements of $4,129.89.
Mr Barnes was off work for a total of 47 weeks between 11 January 2003 and 8 December 2003 suffering a nett loss of $25,580 (47 weeks at $550 per week) together with loss of superannuation entitlements of $2,081.58 (9% of $703 gross x 47 weeks less 30% for taxation and administration charges 9%).
In his schedule of loss Mr Barnes' claim for past loss of earning capacity on the basis he remained at Kailis is calculated in the sum of $70,228.96 to 8 June 2009 inclusive of superannuation entitlements and lost overtime opportunities. $11,725 is claimed for loss of overtime whilst employed by Kailis together with an unspecified sum in relation to loss of overtime at Melville Glades.
The defendant submitted that an appropriate quantum for past loss of earning capacity would be in the range of $36,466 to $51,466 exclusive of interest and the reimbursement of leave payments.
The evidence of Mr Atkinson did not establish an entitlement to overtime on the basis of $35 nett per week as claimed whilst employed by Kailis. In a letter dated 28 September 2005 from Kailis there is a reference to overtime being offered. There is also evidence from Mr Brunswick that there has been overtime available. I am not satisfied that it is a matter capable of precise calculation. I would assess the loss of overtime on a global basis in the sum of $7,000. That would represent approximately $1,000 per year from the date of accident.
The second alternate basis put for calculation of past loss is that if Mr Barnes had obtained employment at a mine within one year of the accident he would have been earning $44 gross per hour working two weeks on, one week off. Relying upon the evidence of Mr Bettesworth, it is submitted his nett earnings would have been $1,710 nett per week.
The period between 1 January 2004 and 2 June 2009 comprises 283 weeks. In that period Mr Barnes' nett income was $178,648.73.
If Mr Barnes had been earning $1,710 nett per week between 1 January 2004 and 2 June 2009 he would have earned a nett income of $305,281.27. It is submitted on behalf of Mr Barnes that by reference to his actual nett earnings for that period a loss of $305,281.27 is arrived at. When loss of superannuation entitlements, losses prior to 1 January 2004 and overtime is added a sum of $369,371.58 is arrived at. That sum less advances made by the defendant is $337,333.77. This is said to be the starting point for the assessment of loss which Mr Barnes submits should be assessed in the sum of $200,000 exclusive of interest and advances.
The sum of $369,371.58 assumes that Mr Barnes would have worked in the mining industry between 1 January 2004 and 2 June 2009.
The defendant's submission as to past loss of earning capacity is that if it is accepted by the Court that Mr Barnes had established that there was the availability of employment and a chance that he would have done it, and the level of remuneration has been established then in relation to the sum of $337,333.77 nett an allowance calculated on the basis of approximately 20 per cent of that sum is appropriate. A global sum of $70,000 was appropriate.
I am satisfied that if the accident had not occurred Mr Barnes would have sought more remunerative employment than he was obtaining at Kailis. I am also satisfied that he had good prospects of obtaining such employment. The accident and injuries deprived him of the chance to obtain such employment. As I have said, I am satisfied Mr Barnes is hard working and would have taken steps to secure the employment.
The evidence of Mr Bettesworth was that from 2004 he was placing people in positions within the mining industry. There is also evidence of advertised positions the first of which is dated 2005 and continuing through until January 2008. The advertisements were all for positions which Mr Barnes said he could have applied but for his accident related injuries. There is no certainty that he would have obtained a position or the period of time he would have been prepared to work on a shift basis of two weeks on, one week off.
I must include in any assessment of past loss of earning capacity a component of interest on the past loss at 3 per cent for the period of 6.5 years from the date of accident.
The assessment is not capable of precise arithmetical calculation. The assessment of Mr Barnes' damages for past loss of capacity should in the circumstances include an allowance for the loss of a chance of obtaining more remunerative employment as a fitter on a mine site or other heavy industry. Doing the best I can, I consider that a reasonable award would be $175,000 for all components of past loss of earning capacity, interest and superannuation. The sum of $175,000 is exclusive of advances and leave repayments.
Mr Barnes is currently in receipt of approximately $665 net per week at Melville Glades. If still employed at Kailis his income would be $845 nett per week.
The evidence of Mr Bettesworth establishes that heavy duty fitters in the mining industry are capable of earning $1,710 nett per week. This would involve employment outside the Perth metropolitan area. Professor Mulvey's report refers to an average weekly earnings for a fitter of $1,488 as at May 2008.
The Australian Bureau of Statistics' figures establish as at February 2009 the average weekly nett wage for a full‑time male adult is $1,190.30. The male weekly nett minimum wage is $493.40 per week.
Mr Barnes in his submissions identifies three distinct periods in relation to the claim for future loss of earning capacity.
The first period is the five years from the date of trial. For this period Mr Barnes claims a loss of $1,045 nett per week being the difference between his income at Melville Glades of $665 nett per week and his potential earnings in the mining industry of $1,710 nett per week. The application of a multiplier of 226.3 (five years at 6 per cent) to the weekly sum of $1,045 produces a loss of $236,483.50. Alternatively, the claim is put on the basis of a loss of $525.30 per week being the difference between the average weekly nett wage of $1,190.30 and $665. On that basis and again applying a multiplier of 226.3 a loss of $118,875.39 is arrived at.
Accordingly, Mr Barnes submits a range of $118,875.39 to $236,483.50 for the first period.
The defendant's submission is that in this first period of five years Mr Barnes' loss would be approximately $181 nett per week being the difference between his earnings if still employed by Kailis and his current earnings from Melville Glades. On that basis the loss for the first period would be in the order of $41,000.
The second period is the period five years from trial to when Mr Barnes attains the age of 60 years. The evidence of Mr Kimberley which I accept was that within five years Mr Barnes will require joint replacement surgery. By that time he will because of physical limitations arising from his injuries be unlikely to earn more than the minimum wage of $493.40 nett per week. On that basis Mr Barnes submits that his loss of earning capacity for 16 years to age 60 based on a capacity to earn at least average earnings of $1,190.30 nett per week will be $696.90 nett per week. By application of a deferred multiplier of 420.7 to that sum a loss of $293,185.83 is arrived at.
The defendant's submission is that in this second period of 16 years Mr Barnes' loss would be approximately $181 nett per week. On that basis the defendant submits that the loss to age of 60 would be $114,713.
The third period is the period between when Mr Barnes reaches the age of 60 years and when he would have retired. Mr Barnes submits that for 10 years from age 60 to age 70 (deferred multiplier, 109.7) he will suffer a loss of $1,190.30 nett per week. The application of a suitable multiplier results in a loss of $130,585.91.
The defendant's case is that if it is accepted that after the age of 60 Mr Barnes will not have an earning capacity, then the loss should be calculated only to age 65 years and as follows:
Weekly multiplier for 27 years (709.8) – weekly multiplier for 22 years (647) = 62.8 x $845 nett per week less 6% contingencies = $53,066 (say, $53,000)
The difference between Mr Barnes' current income and the average wage is $525.30. Mr Barnes is 39 years of age. When 698.7 (multiplier for 26 years) is applied to the sum of $525.30 a loss of $367,027 is arrived at. That calculation does not take into account changes in Mr Barnes' earning capacity.
Mr Barnes' calculations of loss to age 60 based upon the difference between his current income and the average nett wage of $1,190.30 for five years and thereafter the difference between $1,190.30 and $493.40 nett is a sum of $412,061 ($118,875.39 (par 168 above) plus $293,185.83 (par 171 above). To that sum would need to be added an allowance for incapacity between the ages of 60 years and 65 years. Given the nature of the occupation it is inappropriate to extend loss of capacity beyond the usual retirement age. An approach based very broadly upon Mr Barnes' calculations is appropriate in this case and more closely accords with his loss of capacity than does the calculations made by the defendant. There would need to be allowances for contingencies.
In this case, as I have said, Mr Barnes has suffered very severe injuries. He is likely to require a number of surgical procedures to his left hip, left knee, left ankle and right elbow. There will of necessity be further periods of time when he is off work. His disabilities will make it difficult for him to obtain employment should he become unemployed. He may require further training and periods of rehabilitation. He also has suffered a future loss of superannuation entitlements.
Mr Kimberley and Mr Harper's evidence which I accept is that the work at Melville Glades is too demanding for Mr Barnes given the residual disabilities arising from the accident caused injuries. His working life as a mechanic at Melville Glades is limited. Within five years he will require a hip replacement. He will probably have to look at different work at that stage.
All of Mr Barnes' employment skills and experience relate to the performance of physical work. The defendant's submission is that Mr Barnes is fit for full‑time employment of a sedentary supervisory role and is fit for bench‑level work.
I accept that this is not a case in which a precise arithmetical calculation is appropriate. Indeed each counsel submitted that a lump sum award was appropriate.
Whilst recognising that a lump sum award is appropriate the calculations do assist and provide some guidance. The range submitted to me by counsel was $200,000 to $500,000.
I accept that but for the injuries he suffered in the accident Mr Barnes would have been able to work as a mechanical fitter in mining or other heavy industry.
In all the circumstances I am satisfied that there was a real chance Mr Barnes could have earned a significantly greater sum than he was earning at Kailis. Following joint replacement surgery, in approximately five years his earning capacity will be further reduced. This was the view of Mr Harper and Mr Kimberly which I accept.
There will be periods of increased incapacity to the date of retirement as a result of the effect of the injuries.
In my view a loss calculated broadly on the basis of the difference between the average nett weekly earnings and Mr Barnes' nett income is appropriate.
In all the circumstances I am satisfied that an appropriate award for loss of future earning capacity would be $425,000.

Past and future gratuitous services

Past gratuitous services and interest on that loss were agreed at $25,000 and I would allow that sum.
The claim for future gratuitous services is put on the basis that Mr Barnes will require heavy domestic and gardening assistance for the rest of his life.
The claim is made upon the basis of a requirement of approximately half an hour a week for the next two years increasing to four hours per week by the time Mr Barnes is 60 years old.
Mr Barnes in his particulars calculates a loss of $26,312 as follows:
1.Currently and for the next two years Mr Barnes will require approximately half an hour assistance per week at a cost of $16 per hour. The weekly multiplier for two years is 98.5:
0.5 hours x $16 per hour x 98.5 = $788
2.Between the ages of 40 to 50 years Mr Barnes will require approximately 1.5 hours assistance per week at a cost of $16 per hour. The weekly multiplier for 12 years is 450.5 minus the weekly multiplier for two years is 352.0:
1.5 hours x $16 per hour x 352.0 = $8,448
3.Between the ages of 50 to 60 years Mr Barnes will require approximately 2.5 hours assistance per week at a cost of $16 per hour. The weekly multiplier for 22 years minus the weekly multiplier for 12 years is 647.0 minus 450.5 or 196.5:
2.5 hours x $16 per hour x 196.5 = $7,860
4.By the age of 60 Mr Barnes will require approximately four hours' assistance per week at a cost of $16 per hour. Mr Barnes has a life expectancy of 42.8 years. The weekly multiplier for 42 years minus the weekly multiplier for 22 years is 818.0 minus 647.0 or 144.0:
4 hours x $15 per hour x 144.0 = $9,216
Total = $26,312
Mrs Barnes gave evidence as to the assistance she had provided to her husband. This had decreased since the first year after the accident. It was her evidence, which I accept, that she now does the majority of the housework. It was her evidence that after mowing the lawn Mr Barnes is sore. It was her evidence that Mr Barnes lies on a mattress on the floor to recover after having performed that type of activity.

Mr Kimberley's evidence was that in terms of household maintenance type activities Mr Barnes is capable of most of these but has to suffer with pain through the activities. He would have difficulty with more physical type activities particularly with lifting, squatting and any prolonged activity lasting more than half an hour. This would lead to him having to restrict activity due to pain.
I accept that Mr Barnes' needs for assistance will increase as the effects of injuries become more pronounced. He does have some capacity to perform household duties.
There will be periods following surgery when Mr Barnes will require increased assistance. The defendant submits that the hours in Mr Barnes' particulars are an over‑estimate and that a global sum of between $10,000 ‑ $15,000 is appropriate.
I consider that an appropriate award in the circumstances for future gratuitous services would be $20,000.

Future treatment

I am satisfied based upon all of the medical evidence that Mr Barnes will continue to require treatment for the balance of his life.
Mr Kimberley and Mr Hardcastle agreed that surgical procedures on the left knee, hip and elbow were required.
In his report dated 27 May 2009 Mr Kimberley described the future treatment required by Mr Barnes as follows:
"With regard to hip and knee replacement surgery is two procedures that could be performed for this gentleman specifically the hip replacement would probably need to be done in five to ten years. The knee replacement is less likely more like ten to twenty years but I would point out that I (sic) different type of procedure such as stabilisation of the knee or an osteotomy may be required prior to this. The longevity of hip replacements is probably a little better than knees for people of this age and I would be keen not to rush in with a knee replacement for him.
With regard to his lumbar spine there is no obvious reason for surgery at this point, but he may need considerable physiotherapy and other type treatments and there is no guarantee that his problem will not come to surgery in the future. Were he to have a hip replacement with five to ten years there is a high likelihood that he would require revision of this hip replacement at least on one occasion and possibly on several occasions over the course of his life.
The cost of treatment of the lower back pain would be approximately $500.00 ‑ $1,000.00 for a full course of physiotherapy or gym based exercise and I believe this may mean me perhaps having to look at a gym program over the years to prevent deterioration of the back with membership being $500.00 ‑ $1,000.00. He will require ongoing pain management for these problems with cost approximately $300.00 ‑ $500.00 in the terms of medication."
Mr Barnes in his particulars of damage relies upon an assumption of a life expectancy of 46 years and an appropriate multiplier of 834.1. The defendant in submissions agreed a number of the claims. The particulars of further treatment are as follows:
(i)Review by a general practitioner every three months at $39 each or $3 per week. (Agreed)
(ii)Access to heated swimming pool for exercise at $150 per three months or $12 per week. (Agreed at $11.54 per week)
(iii)Heat packs at $18 with a 12 month life or $.035 per week.
(iv)Panadol or Nurofen at $4 per 24 at one packet per month being $1 per week. (Agreed at 0.46 cents per week)
(v)Allegron at $17.70 per 50 tablets at one tablet per day or $2.50 per week.
(vi)Arthroaid at $24.95 per tube at three tubes per year or $1.50 per week.
(vii)Mr Barnes is likely to require approximately five sessions of physiotherapy per year at $60 per session or $6 per week, particularly following orthopaedic surgery.
(viii)Mr Barnes will require review by an orthopaedic surgeon with radiological investigation such as MRI scans or CT scans every year at a cost of $300 for each visit or $6 per week. (Agreed at $2 per week)
(ix)Travelling expenses to attend medical treatment and swimming at $2.50 per week: (Agreed)
$35 per week x 834.1 = $29,193.50
In the result the defendant contended that this part of the claim should be assessed at $15,885.56.
The present value of the loss in relation to future surgery is particularised as follows:
Knee replacement (in 10 years), $20,000 x 0.558:             $11,475.75
Knee replacement revision (25 years), $20,000 x 0.233: $4,660.00
Hip replacement (in five years), $20,000 x 0.747:              $14,940.00
Hip replacement revision (in 20 years), $20,000 x 0.312: $6,240.00
Knee reconstruction (in eight years), $10,000 x 0.627: $6,270.00
Right elbow arthroscopy (presently required):   $4,000.00
Right elbow arthroscopy revision (10 years),
$4,000 x 0.558: $2,232.00
Left ankle ganglion excision (presently required): $4,000.00
The defendant accepts that Mr Barnes is likely to require a knee replacement and a hip replacement.
Mr Barnes also claims an allowance in relation to the chance he would require surgery to the left ankle. The left ankle surgery was described as a possibility by Mr Kimberley.
The present value of ankle surgery is $2,232.00 (in 10 years, at a current cost of $4,000 x 0.558).
The present value of a spinal fusion is $10,015.20 (in 15 years, at a current cost of $24,000 x 0.4172). I am not satisfied that any allowance for a spinal fusion should be made. Only Mr Hardcastle mentioned it and he said it was some years away. Mr Kimberley did not refer to it.
The range of quantum submitted to me was $60,000 to $75,000.
I am satisfied based upon the evidence of Mr Kimberley that the surgical expenses outlined are reasonable and that the time periods for revisions and reviews are reasonable.
Given the significant extent of the injuries and the treatment required, I consider that a reasonable award would in all the circumstances be $70,000.

Special damages

Special damages and interest were agreed at $3,551.54 and I would allow that sum.

Summary of award

For the above reasons, I consider Mr Barnes is entitled to a judgment of $882,051.54 as follows:
General damages  $163,500.00
Past loss of earning capacity including interest
and superannuation  $175,000.00
Future loss of earning capacity  $425,000.00
Past gratuitous services and interest $25,000.00
Future gratuitous services $20,000.00
Future treatment $70,000.00
Special damages and interest    $3,551.54
TOTAL$882,051.54