Binks v North Sydney Council - [2006] NSWSC 463

No judgment structure available for this case.

CITATION: Binks v North Sydney Council & Anor [2006] NSWSC 463
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13/03/2006, 14/03/2006, 15/03,2006, 16/03/2006, 17/03/2006, 20/03/2006, 21/03/2006, 22/03/2006, 23/03/2006, 24/03/2006, 25/05/2006

JUDGMENT DATE :
25 May 2006

JUDGMENT OF: Hoeben J at 1

DECISION: Judgment for the plaintiff aginst the First Defendant in the sum of $330,253.00. Costs reserved.

CATCHWORDS: TORT - negligence - duty of care of road authority to motorist - motorist affected by alcohol - confusing nature of roadworks and signs - causation - contributory negligence and apportionment - damages - brain injury - claim for economic loss of unemployed musician - attendant care.

CASES CITED: Betts v Whittingslowe (1945) 71 CLR 637 at 649
Brodie v Singleton Shire Council (2001) 206 CLR 512
Chappel v Hart (1998) 195 CLR 232 at 238
Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 at [26-28]
Edson v Roads and Traffic Authority [2006] NSWCA 68 at [91]
Husher v Husher (1999) 197 CLR 138 at [7]
Joslyn v Berryman & Anor (2003) 214 CLR 552
Leichhardt Municipal Council v Montgomery [2005] NSWCA 432
March v Stramare (1990-1991) 171 CLR 506 at 520
Podrebersek v Australian Iron & Steel Pty Limited (1985) ALJR 492 at 494
State of New South Wales v Moss (2000) 54 NSWLR 536

PARTIES: Simon John Binks - Plaintiff
North Sydney Council - First Defendant
AG Maitland Pty Limited - Second Defendant

FILE NUMBER(S): SC 21088/96

COUNSEL: P Webb QC/R Royle - Plaintiff
M Joseph SC/N Polin - First Defendant
No appearance - Second Defendant

SOLICITORS: Selby Levitt - Plaintiff
Phillips Fox - First Defendant
No appearance - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Thursday, 25 May, 2006

21088/96 – Simon John BINKS v NORTH SYDNEY COUNCIL & Anor
JUDGMENT

1 HIS HONOUR:

Nature of claim
This is a claim by the plaintiff in negligence against the first defendant, North Sydney Council (hereafter called the Council) in respect of a motor vehicle accident, which occurred shortly before 1am on 20 July 1995. The plaintiff was travelling South in Alfred Street, Milsons Point and the accident occurred at the intersection of that street and Fitzroy Street. The Council had the management of road works, which were being carried out at that intersection. The plaintiff alleges that it was the Council’s negligent management of those road works which was a cause of his accident. When tested after the accident, the plaintiff had a blood alcohol concentration of .133.

Factual background

2 Although there were a number of disputed issues of fact, the general background was relatively uncontroversial. I have indicated those matters which were in dispute. Except as otherwise indicated, I find the factual background to be as set out in the following paragraphs.

3 The plaintiff was born on 27 November 1956 in Melbourne. He attended the Peninsula Church of England Grammar School and completed his final year at the age of 17-18. While at school he had no particular interest in academic pursuits. Upon leaving school his ambition was to be the best guitarist he could be.

4 He thereafter had a series of odd jobs for the next two or three years, which included work as a kitchen hand and work at a used car lot. Any money he saved he used to purchase musical equipment. Towards the end of this period he and some friends including James Reyne formed a band called “Spiff Rouch”. The plaintiff was receiving guitar lessons and developing his skills as a guitarist during these years.

5 The band “Spiff Rouch” achieved some success and remained together for a year. The plaintiff and James Reyne thereafter started their own band, “Australian Crawl”. That band started to achieve success in the Melbourne music scene in the summer of 1979. Between 1979 and 1986 it would be fair to say that the band “Australian Crawl” was one of the leading rock bands in Australia. During that period it produced a number of very successful songs. The plaintiff was the lead guitarist in the band and participated in the writing of most of the successful songs. James Reyne was the lead singer.

6 Although the plaintiff earned considerable sums of money during this period, he appears to have spent it as quickly as he received it. The band “Australian Crawl” broke up in February 1986 as a result of differences of opinion between band members, in particular the plaintiff and the lead singer, James Reyne. At that time the plaintiff’s assets comprised $10,000 and a collection of guitars and Japanese swords.

7 Despite that modest financial position, I accept the submission on behalf of the plaintiff, that at that time the plaintiff was recognised as a highly skilled and accomplished guitarist and had a high profile in the rock music industry, not only in Australia but also overseas. He had also gained valuable experience as to how the rock music industry operated.

8 Following the break up of the band, the plaintiff travelled to Japan and stayed for a year and a half. The plaintiff says he fell in love with Japan and that is why he stayed. He does not appear to have worked in any consistent way. He supported himself by selling his guitar collection and his Japanese swords.

9 After his sojourn in Japan, the plaintiff travelled to Los Angeles. He had about $20,000 with him. He spent his time there setting up a new band and collaborating with the band members in the writing of songs. He returned to Melbourne in February 1988 following the sudden death of his father.

10 Following his return to Melbourne, he worked for about six months as an employed guitarist with Broderick Smith. Broderick Smith was well known in the rhythm and blues music field and was the lead singer of a band “Carson”. The plaintiff received a regular but modest salary during this period.

11 In late 1988 the plaintiff was contacted by a friend, Chris Batson, who was based in Singapore. Mr Batson invited the plaintiff to go to Singapore to work in his uncle’s company, composing music to be used in advertising. The plaintiff accepted.

12 The first thing the plaintiff had to do when he arrived in Singapore was to rearrange the recording studio owned by Mr Batson’s uncle so that it could function effectively. The plaintiff was not paid for this and there appears to have been a falling out between him and Mr Batson’s uncle. As a result, the plaintiff went into business on his own account in Singapore, composing and recording music for use in advertising. Initially he used the studio owned by Mr Batson’s uncle, but later set up his own studio. He was writing, recording and producing the music which was used in the business.

13 The plaintiff appears to have been quite successful. He had clients not only in Singapore, but also in Indonesia, Kuwait and the Philippines. His evidence was that although the income was not regular, it was significant. The plaintiff estimated that he earned $250,000 for each of the years 1989 and 1990 before expenses and before taxation were deducted. The sort of expenses which needed to be deducted were the cost of a car, operating the studio and the cost of purchasing equipment, both for the studio and for use by the plaintiff at home. There were also travel expenses and the cost of office staff.

14 The plaintiff met his wife, Sharon, in 1989 and they were married in April 1990. She was unable to provide any detailed evidence as to the plaintiff’s earnings during this period. The effect of her evidence was that the plaintiff was leading a fairly lavish lifestyle, which included parties at his home. He was able to generously provide for her financially which included providing her with a credit card. Her evidence was that she spent a lot of money on clothes, shoes, holidays and entertainment and that the plaintiff did not restrain her in any way. Neither the plaintiff nor his wife was able to give evidence as to how much money was available after the deduction of expenses and taxes.

15 No document was produced in the plaintiff’s case in relation to this evidence. There were no bank records, no taxation records and no records of receipts and expenditure. Despite this lack of appropriate evidence, I am prepared to accept that the plaintiff did achieve a measure of financial success in Singapore at this time for a period of approximately two years. The absence of any detail in the evidence does not allow me to make a more precise finding.

16 The plaintiff and his wife returned to Melbourne in late 1991. The plaintiff’s evidence was that he did so because his wife was pregnant and he did not trust the Singapore health system. He thought it would be safer for her to have their child in Australia. Lizzie was born in February 1992.

17 In the third year of its operation, the plaintiff’s business in Singapore was not successful. The plaintiff explained this by saying that he was having problems with his wife’s former boyfriend, who was influential in Singapore society, and that this affected his ability to successfully conduct the business. While I am not prepared to accept the reason put forward by the plaintiff for why his business did not maintain its success, it is sufficient for these proceedings that I find that the business did not operate profitably in its third year of operation. This is confirmed by some incomplete letters from the Inland Revenue Department of Singapore in 1992 and 1994 which suggest that for the financial year ending 30 June 1992, the business was operating at a loss.

18 When the plaintiff and his wife returned to Melbourne, they had little by way of assets. The plaintiff expected that he would easily find work because of his previous reputation in the music industry, but he was disappointed in that expectation. The family moved into a flat in Toorak where rent was expensive. The plaintiff had little work and there were money problems. The plaintiff’s wife was unable to work due to post-natal depression and the only income was social services and royalties from songs which were written when the plaintiff was a member of “Australian Crawl”. Following the death of his mother, the family moved into the plaintiff’s mother’s house. These were rented premises. The death of his mother upset the plaintiff greatly.

19 Because there was no work for him in Australia, the plaintiff in early 1994 went to Jakarta. He was encouraged to do so by his friend Chris Batson. The plaintiff’s wife and child went to Singapore and lived with her mother while he commuted between Jakarta and Singapore. The plaintiff’s evidence was that there were problems in Jakarta with his business associates. They refused to pay him for recording equipment which he had brought with him to set up a recording studio. He said that although he earned $US110,000 he was only paid half of that amount. He and his family flew to Sydney in February 1995.

20 As with the period of employment in Singapore, there are no documents to support the plaintiff’s evidence as to his earnings in Jakarta. It seems to me that the 1994 Jakarta venture was not particularly successful for the plaintiff from a financial point of view. When he arrived in Sydney, he had $10,000 - $20,000 and a certain amount of recording equipment which he had successfully removed from Indonesia.

21 The plaintiff’s intention in moving to Sydney was to obtain musical work in the film industry. He was sick, he said, of writing jingles for use in advertising. The plaintiff and his wife rented a serviced apartment in Milsons Point before moving to Darley Street, Neutral Bay where he was residing at the time of his accident.

22 Between February and July 1995 the plaintiff did not actually perform any remunerative work. He spent his time with introductions and visiting agencies to make them aware of his availability and to provide them with his “show reel”. This was a visual demonstration of his work. He was also setting up a band with David Peach and Wayne Doyle. Before a new band could start, it had to have new songs and much of the time between February and July 1995 was spent writing and rehearsing new songs for this band. At the time the plaintiff’s wife was still not able to work.

23 I will deal with the circumstances of the accident in detail under the heading “Liability”.

24 A matter in dispute was the extent to which the plaintiff’s headaches disabled him from employment before the accident. It was common ground that the plaintiff had experienced migrainous type headaches since the age of nine or ten. These headaches had afflicted the plaintiff while he was a member of “Australian Crawl”. A 1985 promotional video (exhibit F) included an interview with the plaintiff during the course of which he complained about the debilitating nature of his migraine headaches. These did not prevent him performing with “Australian Crawl”.

25 There was little evidence of the number and extent of the plaintiff’s headaches between the date of exhibit F and the plaintiff’s return to Melbourne in late 1991. The plaintiff’s wife said that during the period his migraines were intermittent, occurring once every couple of months. She noticed that they were becoming more frequent, and occurred mainly when the plaintiff was stressed. She was aware that he was receiving medical attention for his migraines while in Singapore. She had a specific recollection of one occasion when the plaintiff was so disabled by his headaches that she had to take him to a hospital in Singapore where he received an injection of Pethidine.

26 It is only after the plaintiff’s return to Melbourne that medical records exist which refer to his headaches. The earliest of these is a report from Dr Waterson, neurologist, in December 1991 to the effect that the plaintiff was experiencing bad migraine attacks once a week and that he had tried Propranol, Deseril and Sandomigrain without beneficial effect.

27 Throughout 1992 the plaintiff continued to suffer from migraine headaches. This was complicated by depression which developed in May 1992. On one weekend a general practitioner was called to see the plaintiff on three occasions because of his headaches. Pethidine was being prescribed for his headaches on a regular basis. The plaintiff’s evidence was that his headaches would only respond to Pethidine. More than one doctor expressed concern that the plaintiff was developing problems with drug dependence, with specific reference to Benzodiazepines and Pethidine.

28 The situation does not seem to have improved during 1993. The plaintiff’s headaches continued to respond only to injections of Pethidine. His headaches were often associated with neck ache. The plaintiff’s pain was described as chronic and severe in nature and medical opinion was that it was important for the plaintiff to find an alternative treatment to Pethidine.

29 There are no medical records which relate to the plaintiff’s headaches and treatment for them during 1994. This is not surprising since he spent most of that year in Jakarta and Singapore. There is nothing to suggest, however, that the headaches ceased or moderated in either their frequency or intensity. This can be inferred from the fact that almost immediately upon his return to Australia in February 1995, medical records indicate that the plaintiff was again being prescribed Pethidine for his migraine headaches. Handwritten clinical notes from the Big Bear Medical Centre dated 4 March 1995 refer to “claims Pethidine only for pain” and “possible substance abuse”.

30 In the plaintiff’s written submissions a convenient summary was set out of the plaintiff’s attendances at medical centres for his migraine headaches and neck pain problems.

31 In many of those attendances the plaintiff sought and was given Pethidine injections, although other medications were also prescribed. A report of Dr Peter King, psychiatrist, dated 3 July 1995, referred to the plaintiff’s history of medication as “including Pethidine starting from 1989, Panadeine Forte up to 20 a week and numerous other psycho-tropic drugs including Tricyclic antidepressants, Toroidal, Morphine, Sodium Valproate and many more”.

32 Against this background it was submitted on behalf of the Council that the plaintiff at this time was addicted to Pethidine and that this addiction, combined with his headaches and neck problems, meant that he would have found it very difficult to maintain any regular employment at the time of the accident.

33 On behalf of the plaintiff it was submitted that although he did have ongoing problems with migraine headaches, he was showing signs of successfully managing that problem and that in the past he had succeeded in managing it and in carrying on a successful career. The basis for the submission that the plaintiff was showing signs of managing his headaches at the time of the accident was that medical records revealed only one injection of Pethidine in June 1995 and none in July.

34 I am not prepared to conclude that as of the date of the accident the plaintiff was addicted to Pethidine, although that was certainly a concern expressed by a number of doctors whom he consulted between February and July 1995. I do find, however, that between February and July 1995 the plaintiff had a serious problem with migraine headaches and neck pain which at the time of the accident was not showing any real signs of improvement. The reference to one injection of Pethidine in June 1995 and none in July, says more about the unavailability of records than an improvement in the plaintiff’s condition. Neither he nor his wife gave evidence of any improvement before the accident. The effect of this finding on the plaintiff’s claim for damages I will deal with in due course.

35 As a result of the accident the plaintiff suffered a closed head injury, a fractured left scapula, a fractured left mastoid and a possible fracture at the base of the skull. He also suffered right and left occipital scalp lacerations which required a blood transfusion. A golden staph infection subsequently developed in those wounds. On admission to hospital a CT scan of the brain demonstrated contusions in the right temporal parietal region with generalised mass effect. No focal injuries were indicated. A subsequent CT of the brain on 31 July 1995 indicated a resolution of the contusions and no further neural damage.

36 The plaintiff was admitted to the Royal North Shore Hospital where he remained until 3 August 1995. On that date he was transferred to the Royal Rehabilitation Centre at Ryde. He remained an inpatient of the centre until he was discharged home on 22 August 1995. The reason for his discharge was that he had become impatient with treatment and wished to be at home with his family. He had post-traumatic amnesia (PTA) from which he did not emerge until 14 August 1995. This placed his injury in the category of “a severe head injury”.

37 Upon his admission to the Royal Rehabilitation Centre, he had a lower level nerve palsy affecting his left leg. There was some decreased sensitivity and power on the right side and a decrease in right hand fine motor control. He walked with an unsteady gait. Following intensive treatment, his mobility improved so that he was able to walk independently over all surfaces. He was left with a high-level balance problem. This produced a tendency to lose his balance when bending. He was left with a generalised weakness on the right side, particularly affecting right hand function. Given his previous expertise as a guitarist, this was of considerable concern to the plaintiff and caused him great anxiety.

38 Shortly before his discharge from the rehabilitation centre, the plaintiff underwent a neuropsychological examination. The results of that assessment were:

“The current assessment demonstrates severe memory and new learning difficulties, indicating a deterioration in functioning. Mr Binks’ memory performance indicates reduced encoding capacity, despite having adequate attention, concentration and sensory spans.

It is suggested that Mr Binks may have suffered some hypoxic damage as a result of the obstructed airways and profuse bleeding which occurred at the time of injury.

In addition to his impaired memory functioning, Mr Binks demonstrates some executive deficits, such as reduced fluency, perseveration and poor planning. Mr Binks’ disorganised and impulsive attitude towards tasks has reduced his overall performance.”

39 As of the date of trial, the plaintiff continued to have problems with fine movements in his right hand. He also appeared to have some difficulty in negotiating the steps in and out of the witness box. It is not clear whether that was due to large amounts of medication which he was taking, or to problems with ambulation. In his evidence (T.202) he indicated that once out of hospital he started running and in particular could run to Cremorne Point and back again and became quite active physically. That evidence is somewhat inconsistent with what I observed him to be able to do in court. On the other hand, he was assessed by physiotherapists from the Royal North Shore Hospital in October 1995 as having “good mobility”.

40 During the trial, it was obvious that there was some facial asymmetry affecting the left side of the plaintiff’s face. It drooped slightly by comparison with the right. This appears to be a direct consequence of the accident. On occasions the plaintiff’s speech was slurred while giving evidence. It is not clear whether this was due to the high levels of medication which he was taking or whether it was a direct consequence of the accident.

41 Following the accident the plaintiff continued to recuperate at home, perform prescribed exercises at home and attend the rehabilitation centre from time to time as an outpatient. He underwent a neuropsychological review on 2 August 1996. The results of that review by Ms Mariott-Lloyd, the same neuropsychologist who had previously examined him, were:

“Mr Binks presents thirteen months post severe head trauma. The current assessment indicates that the significant memory deficits, in both modalities, noted previously have not resolved. Mr Binks has a significant encoding deficit, despite immediate registration capacity. He also continues to demonstrate some organisational and manipulation difficulties.

In contrast, Mr Binks’ other executive deficits appear to have ameliorated. This improvement is evident in his increased insight, utilisation of feedback, decreased frustration, impulsivity and perseveration.

The change in Mr Binks’ insight is fundamental as he is now open to the use of compensatory strategies, can accept feedback and make realistic future plans.”

42 In April 1997 Ms Narci Sutton, a clinical psychologist from the Royal Rehabilitation Centre, who had been treating the plaintiff since his first admission there, reported:

“In a recent neuropsychological assessment he was found to have memory deficits in both modalities (verbal and visual). He also demonstrated significant encoding deficits and difficulties in organising and manipulating information. This is a particularly severe problem in situations where complex and diverse information needs to be analysed (ie a meeting, a social gathering). He performs best in one to one settings where environmental distractions are reduced.

I would like to emphasise that in spite of the above difficulties Mr Binks’ overall intelligence level remains above average. This is in fact one of the main contributors to his emotional and adjustment difficulties. He is able to compare and judge between what he could do prior to the accident and what he can do now, thus he can measure his loss and the impact this has in his relationships and his family’s future. Added to this, the brain injury directly impacts on his ability to deal with stressful situations.”

43 The plaintiff’s evidence was that he was seeking work after his discharge from the Royal Rehabilitation Centre but was unsuccessful. The plaintiff was rather vague as to the timeframe during which such applications for employment were made.

44 On 22 April 1997 the Commonwealth Rehabilitation Service prepared a report for use by the Royal Rehabilitation Centre. I propose to set that report out in full since it provides a useful assessment of the plaintiff’s capacities, both physical and mental, at that time. It also appears to be quite objective and does not show any signs of being contaminated by litigation considerations.

“Mr Binks referred himself to CRS on 05/09/95 after sustaining an Acquired Brain Injury in a Motor Vehicle Accident on 20/07/95.

Since the time of referral the following areas have been address:

* Driving – Mr Binks completed a Driving Assessment and then completed 2 driving lessons. After a second assessment, it was recommended he have his licence reinstated.

* Vocational Issues – Early in the Rehab Program, it was established that writing ‘jingles’ for Advertising Companies would be the quickest way to earn money. Setting up a studio from where he could work, was complicated by the fact that his equipment was missing and related insurance problems. A further difficulty was Mr Binks’ uncertainty that he could still “create”. Two simulated Work Training were set up with 2UE and George Patterson Advertising Company. During the latter, it was established that Mr Binks was able to “create” and received positive feedback from the Creative Director for his work.

Since his Work Training, Mr Binks, with the assistance of his wife, has been to visit and promoted himself to many advertising companies. As of yet, he has received no work. Mr Binks is currently involved in other projects, which he hopes will generate financial income.

* Worksite Assessment – Mr Binks was experiencing right shoulder pain after working in his studio so a workplace assessment was completed. As a result, equipment was provided to ensure easier, more ergonomic access to his equipment was possible and an ergonomic chair was provided. Education was provided on posture and workstation setup.

*Physical Upgrading – Mr Binks underwent a Physical Assessment and joined the Physical Upgrading Group on 2 occasions. Both times, Mr Binks found it difficult to commit himself to attending the group. He feels that he still required physical upgrading and that a Home Program would be more appropriate. This has been set up for him by a physiotherapist. Mr Binks fatigues easily and experiences difficulty with high level coordination of his right hand.

* Other – Information was provided about Small business and Financial Assistance available.

* Liaison – Has been maintained with other treating professionals and the DSS regarding benefits.

Although Mr Binks, as yet, has not completed any paid work, it is felt that there is no further assistance that we can provide him at this time in regards to return to work in his chosen area of music. Discussion has taken place regarding exploring other options of 9-5 jobs. Mr Binks feels that this would not allow him to be free for other projects.

Mr Binks’ CRS file will therefore be closed and he has been informed, that should he require CRS assistance in the future in gaining employment, that he can refer himself to our service again. …”

45 The comment in the report as to the plaintiff’s unwillingness to explore “other options of 9-5 jobs” because “this would not allow him to be free for other projects” accords with my assessment. During this period and even up to the present time, the plaintiff has only been interested in jobs which related to the music industry. His evidence was replete with descriptions of “projects” which he tried to get off the ground, but which failed to eventuate either for lack of finance or because he was let down by other persons. These projects were all related to aspects of the music industry.

46 In 2000 the plaintiff was accepted for and attended what he described as the “Award School” which was a course conducted by the advertising industry. The course involved bi-weekly sessions of two to three hours where various forms of creative ideas and strategies for use in the advertising industry were discussed. Towards the end of this course on 5 June 2000 the plaintiff was successful in obtaining employment with an organisation called “Next Generation Entertainment”.

47 The plaintiff obtained the job by responding to an advertisement in a paper. The job involved writing music which would be used in computer games. It turned out that these were gambling games. Although the plaintiff said he was morally opposed to such games, he remained in that employment. “Next Generation Entertainment” was a new company which had offices in George Street, Sydney. The plaintiff was taken on with a number of other new employees. The hours of work were 9 to 5. The plaintiff was set up in a recording studio so that he could perform his work. The plaintiff performed some of the work in his own studio at home, outside the hours of 9 to 5. The music which he composed and produced was purely for background purposes and did not contain lyrics.

48 The plaintiff remained in that employment until October 2001 when he was retrenched. The termination of his employment had nothing to do with the way in which he was performing his work. The plaintiff was not the only person to be retrenched by “New Generation Entertainment” at that time. The plaintiff’s earnings for the year ending 30 June 2001 were $74,766 before tax (ie $978 net per week after tax).

49 The defendant called evidence from Mr Halprin, another employee of “Next Generation Entertainment” who was working with the plaintiff in 2000/2001 and who was retrenched shortly after the plaintiff. Mr Halprin was the person to whom the plaintiff reported when he was working with “Next Generation Entertainment”. He characterised the position of the plaintiff as between that of a sound engineer and a member of the production staff. He described the plaintiff’s work in the following terms:

“A. Sure, basically we would develop games for various clients and those games would have a sound component. So what we would do is essentially get together with Simon and work out whatever the brief was, it might be some musical themes, some sound effects that needed to be developed and he would write those.” (T.699.52)

“A. Yes he would write the music, he would play it, edit it and pull it all together in the software and provided us with, you know, final sound files that we could plug into the games.” (T.700.7)

50 Under cross-examination it was sought to establish through Mr Halprin that the plaintiff had difficulties in performing this work. I am not so persuaded:

…

51 From both the plaintiff’s evidence and that of Mr Halprin I am of the opinion that the job with “Next Generation Entertainment” did require intellectual analysis and some creative activity by him. He was particularly well suited to the job because not only did it involve music, but it involved the production and composition of music by use of sounds which were stored in a computer. This was an area in which the plaintiff had particular expertise (T.210). It was also a job where he could work on a one on one basis, rather than being required to work with a group or team. Clearly the plaintiff had no difficulties in commuting to and from work during the sixteen months of his employment, nor does he appear to have had any difficulty in dealing with the substantial sums of money which he earned. Some of that money was used to purchase equipment for the recording studio which the plaintiff set up in his home.

52 The plaintiff’s evidence was that he had no difficulty physically or mentally in performing that job (T.222). He had some difficulties with a person in a management position above him, but he attributed those difficulties to the personality of the other person. His major concern in relation to the job was that it involved performing work in the gaming industry, which he regarded as morally reprehensible.

53 Since his retrenchment in October 2001, the plaintiff has not engaged in any remunerative employment. He said that he had become disillusioned because he had applied for so many jobs and received so many knock backs. When specifically asked “Did you go back to seek advertising jobs” his response was:

“A. That was held up. Yes, but that was held up because I was trying to put a show reel together of newer stuff because you must remember the stuff I had in my show reel dated back to ’89-’90 so that it is 10 years old and in this industry if it’s 10 days old it is too old …”

54 The conclusion I have reached is that the plaintiff did apply for jobs of a similar kind to that which he had performed for “Next Generation Entertainment”, but that such applications were made over a relatively brief period following his retrenchment, and that his real interest was in his book and re-establishing himself in the music industry. In my opinion, the plaintiff has not looked for paid employment since shortly after being retrenched from “Next Generation Entertainment”.

55 There are a number of references in the plaintiff’s evidence to the book which he has been writing. He seems to have been engaged on that undertaking between 1996 and the present. Two documents were tendered in the course of the proceedings. The first was an early version of the book and the second was the most up to date version. It comprised approximately 35,000 words. The book is not complete but is, as the plaintiff explained, a work in progress. Attempts to have it published have not yet been successful.

56 The book uses as its theme the plaintiff’s life and with that as its narrative background, it comprises a series of reflections by the plaintiff on experiences which he has had and how they have affected him. It is very discursive and does focus significantly on his motor vehicle accident and its sequelae. It contains a number of quotations from philosophical and scientific works as part of the plaintiff’s commentary on his life experiences.

57 A striking feature of the document is the plaintiff’s ability to analyse accurately quite complex philosophical concepts and apply them appropriately. While one may not agree with the conclusions or the particular thesis being put forward by the plaintiff, there is no doubt that intellectually he is of above average intelligence despite the accident.

58 The other impression I gained from the book was that many of the plaintiff’s thought processes are unusual and he sees much of the world around him in black and white terms, without much room for compromise. This rigidity of thought and some obsessional features I believe to be a product of the accident.

59 Since October 2001, apart from working on his book, the plaintiff has been attempting to write and produce music in his recording studio at home. He has sought to teach the guitar on occasions, although the details of this are vague. He has continued in his attempts to promote and develop projects associated with the rock music industry. Many of these projects seem to involve getting together persons who were previously members of bands which were prominent in the 1980’s, or using their music in a more contemporary way. These projects have involved the plaintiff in attending a number of business meetings, but as indicated, none have as yet been successfully launched.

60 In 2002 the plaintiff became involved in litigation between himself and IBM. This arose because of a problem with the hard drive in one of the computers used by the plaintiff and was not remedied by a replacement computer. As a result, the plaintiff lost some material which he had composed. The details of the litigation and its outcome or current status were never clarified in evidence. It was, however, not suggested that the plaintiff’s claim was unfounded or vexatious. The plaintiff appears to have been able to instruct his solicitors appropriately in relation to that matter.

61 The income of the family has since 1998 come from the earnings of the plaintiff’s wife, royalties which he receives from his songs with “Australian Crawl” and from his disability pension.

62 The family moved back to Melbourne in July 2004. The plaintiff’s wife said that this was done because the plaintiff had family in Melbourne. That is where the plaintiff and his wife were residing at the time of trial. They were living in rented accommodation. The plaintiff had transferred his recording equipment from Sydney to Melbourne and had set up one of the rooms in the house as a recording studio.

63 As of the date of trial, the plaintiff was assisting some new bands in Melbourne in producing their songs. His difficulty in going into business as a producer of songs, the plaintiff explained, was a lack of confidence. Because it was so long since he had done this sort of work, he was concerned that he no longer had the necessary skills. He was also assisting a female singer and songwriter whom he had “discovered” and whom he believed had great talent.

64 A project which the plaintiff has in contemplation, if he had sufficient money, was to purchase a property where he could set up a music studio so that musicians could get away from the distractions of their daily work and focus on developing their music and making records. He thought the Mornington Peninsula would be an appropriate site. He pointed out that quality equipment these days was much cheaper than it had been (T. 250-251).

65 That was the plaintiff’s situation at the date of trial.

Liability

66 In May 1995 the Council entered into an agreement with AG Maitland Pty Limited, the second defendant, pursuant to which the second defendant would construct a roundabout and ancillary works at the intersection of Alfred and Fitzroy Streets, Milsons Point. The second defendant had been the successful tenderer for those works. The second defendant appears to have been regarded as a reputable company, experienced in the construction of road works at that time.

67 There was no appearance by the second defendant at trial. This is not surprising in view of a letter dated 13 January 2003 on the court file which indicated that the second defendant has not traded since 1999 and has been deregistered. Its insurer at the relevant time was FAI Insurance Limited, which has also somewhat notoriously gone into liquidation. The letter, which was signed by Bob Maitland, advised that at the time of its deregistration, the second defendant had no assets.

68 The Council appointed Mr Horace Marsh, an engineer, to supervise on its behalf the performance of the works by the second defendant. From his notes it seems that he attended the work site on most days that work was carried out.

69 It was agreed between the plaintiff and the Council that, in accordance with the authorities referred to in Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, where a road authority engages a contractor to do work on a road used by the public, such as to involve risk to the public unless reasonable care is exercised, the road authority has a duty to ensure reasonable care is exercised and the road authority will be liable if the contractor does not take reasonable care. In other words it was agreed that the duty owed by the Council to road users was non delegable.

70 The bald facts of the accident were that shortly before 1am on 20 July 1995 the plaintiff was driving his 1970 Mercedes motor vehicle in a southerly direction in Alfred Street in Milsons Point. As the plaintiff approached road works which were being undertaken at the intersection of Alfred Street and Fitzroy Street, his vehicle veered to the right, mounted the western kerb and collided with a telegraph pole. The major point of impact with the telegraph pole was the left rear door. There was a 25 metre tyre mark leading to the stationary vehicle. A blood alcohol sample taken approximately one hour after the accident showed that the plaintiff had a blood alcohol concentration of .133.

71 The plaintiff’s case on liability was that on 20 July 1995 there was a failure to comply with the Australian Standard 1742.3 (1985) (hereafter referred to as the Standard) in relation to the signposting and delineation of the road works at the intersection. As a result of that failure, confusion was likely to be created in the mind of a driver approaching those road works from the North, in particular as to whether or not the southbound lane through the intersection was blocked. Before dealing with the question of liability, it is necessary to make factual findings against which this question can be determined.

72 From the Council records it would seem that although work had been performed to realign the western kerb in June or early July 1995, work was not commenced on the centre island of the roundabout and the splitter islands before 17 July 1995. This is clear from the diary notes of Mr Marsh. The reason for the delay was the unavailability of suitable signs.

73 It was submitted on behalf of the Council that the intersection between Alfred Street and Fitzroy Street had operated as a roundabout for some weeks, if not months, before this accident. That proposition was put to the plaintiff’s liability witnesses. On no occasion was that proposition positively accepted. Some witnesses denied it, others said they could not remember or did not know and others agreed that this might have been the case. There was no evidence from the Council to that effect. The only evidence which might support such an inference was the existence of the two roundabout signs on the edge of the eastern kerb. There was, however, no evidence to indicate when those signs were erected. Their presence is equally consistent with them having been erected at or about the time when work was commenced at the intersection in anticipation of a roundabout ultimately being constructed there. In those circumstances I am not prepared to find that the intersection operated as a roundabout before 17 July 1995.

74 The evidence of the plaintiff and his wife was that there were three alternative routes, which he could take from the eastern suburbs to his residence. At the time of the accident, he was residing in Darley Street, Neutral Bay. One of these routes involved using Alfred Street and Fitzroy Street, but it was not the route which he normally used. I accept this evidence and I also accept the plaintiff when he said that prior to the night of the accident he was unaware of any road works at the intersection of Alfred Street and Fitzroy Street.

75 The only evidence as to how the road works were configured, what signs were erected and what other markings or indicia were present comes from photos, which were taken by the Crash Investigation Unit of the Police Service, from the evidence of three persons who regularly used Alfred Street and from the security guard who came to the assistance of the plaintiff, immediately following the accident. It was not clear when the police photos were taken. Quite clearly some were taken on the night of the accident and they require no further comment. Others appear to have been taken within a day or so of the accident. Since it was the practice of the Crash Investigation Unit to take such photographs as soon as possible after an accident, it is a reasonable inference that the daylight photographs were taken the following morning and I so find. There was no evidence of any change to the signage or configuration of the road works between the time of the accident (12.55am) and when the daylight photographs were taken. I accept that the daytime photographs show the situation as it was at the time of the accident.

76 In the police report the conditions at the accident site were described as follows:

“Road surface was dry, weather fine, level gradient, one independent witness, visibility open, road works, partial lighting not operating, 60 km/h speed limit.”

77 The meaning of the phrase “partial lighting not operating” was not clear. Constable Dunn, who prepared the report, gave evidence. Understandably after more than ten years, his recollection was not particularly good. He did recall that the place where the accident occurred was “darker than normal” (T.453). He did not recall what he was referring to when he made the note “partial lighting not operating”. He thought he was referring to the streetlights. Under cross-examination it was suggested to him that the note referred to the light on the pole with which the vehicle had collided and that this light might have been damaged in the collision. Constable Dunn was not able to confirm or deny that proposition. The independent witness was the security guard who heard but did not see the accident.

78 I am only prepared to conclude that there may have been a part of the intersection which was darker than normal when Constable Dunn attended on the night of the accident, but the extent of that was never clarified. I am not prepared to find that lighting played any part in the occurrence of this accident. Even if there were a problem with the lighting, there was no evidence as to how long that problem had existed or whether, as was suggested, it had been caused by the accident itself.

79 For completeness it should be noted that in his notebook and subsequently in a plan prepared by him, Constable Dunn recorded a skid mark of approximately 25 metres in length from the centre line of Alfred Street towards the southwest to the place where the plaintiff’s vehicle ended up. He had measured that distance by pacing it out on the night of the accident. The experts were not able to conclude whether the skid mark represented braking or whether it indicated that the car had yawed while the driver was trying to change direction. The security guard, Mr Russell, referred to hearing “a squeal of brakes, tyres on the road” (T.425). I do not regard that evidence as decisive and am unable to conclude whether the plaintiff applied his brakes or not.

80 In relation to the speed of the vehicle, it was eventually agreed between the experts that if the plaintiff had braked fully before the collision then the likely maximum speed at which he was travelling was about 77 km/h and if he had not braked but the vehicle had yawed, the likely speed range would have been about 60-70 km/h at the point where the skid mark commenced.

81 The only clear evidence as to signs and other indicia which could warn drivers of the presence of the road works came from the photographs. They reveal that plastic web safety mesh was wrapped around the splitter island to the North of the intersection and also around the central roundabout island itself. This was coloured white and orange. There was a single red traffic cone positioned at the tip of the northern splitter island, but photograph C2 showed other red traffic cones behind and partially obscured by the plastic web safety mesh around that splitter island.

82 Three warning lights were depicted in the photographs as follows:

(i) Above the ‘keep left’ sign but facing away from it.
(ii) Facing towards southbound traffic in the centre of the webbing, relatively close to the first light (C3).
(iii) Attached to the trestle barrier bearing the sign ‘changed traffic conditions ahead’. There was no evidence as to whether this was a flashing light or not.

83 The following signs were shown in the photographs:

84 Because the ‘changed traffic conditions ahead’ sign was positioned in the eastern parking lane and was not raised above car level, it was suggested by the plaintiff’s experts that on the night of the accident it may well have been obscured by a parked car. While I accept that the positioning of this sign did not comply with the Standard and that it could have been obscured by a parked car so as not to be seen by a driver travelling South in Alfred Street, I am not prepared to find that it was so obscured. There was simply no evidence as to the presence of parked cars in that part of Alfred Street at the time of the accident.

85 Mr Morrison, a traffic engineer retained on behalf of the plaintiff, based his opinion not only upon the Standard but also upon the RTA manual for ‘traffic control at work sites’. It was his opinion that a road authority in the position of the Council supervising road works of this kind should have had regard not only to the Standard but also to this RTA manual. I disagree. As Mr Stuart-Smith, the traffic engineer retained on behalf of the Council pointed out, this manual had only been published in June 1995. Consequently not only was it unreasonable to expect the Council to have regard to it in mid July 1995, but it was unlikely that the Council would have had access to the document at that time. In any event the purpose of the document was rather different to that of the Standard. Much of it was directed to the safety of RTA personnel or contractors carrying out road works.

86 It follows from my rejection of the RTA manual as an appropriate guide for the delineation of these road works that I do not accept that the failure of the Council to have in place a separate document entitled ‘traffic control plan’ in relation to these road works amounted to negligence. I accept the opinion of Mr Stuart-Smith who said that in 1995 it was comparatively rare for Local Councils to prepare such a document in respect of road works of this kind.

87 Implicit in the two reports by Mr Morrison is the assumption that the signs and devices depicted in the police photographs were the only indicia of the road works at the site. I am not prepared to make that assumption. There may well have been other signs or indicia, which were not photographed by the police. Having said that, however, I am not prepared to draw any inference in favour of the Council that such other signs or indicia as may have been present but not photographed, would have had any effect on the occurrence of this accident. There is simply no evidence one way or the other and to go further than that which is depicted in the photographs would involve unwarranted speculation.

88 The Council was not able to provide information as to the existence of other signs or indicia of the road works beyond those depicted in the photographs. Exhibit V, which was a letter from the Council to a firm of solicitors Messrs Curwood and Partners dated 19 February 1998, indicated the extent of the material available to the Council at that time. From that letter one can infer that from at least 1997 inquiries were being made by the Council as to the relationship between these road works and the plaintiff’s accident. It seems to me to be a reasonable inference that if the Council had evidence of other signs beyond those depicted in the photographs which may have had some effect on the occurrence of this accident, it would have produced that evidence. Neither side called the Council contract works engineer who was supervising the road works, Mr Horace Marsh.

89 There was considerable debate between the experts as to what use should be made of the Standard and the extent to which the signs shown in the police photographs complied with the Standard. It seems to me that compliance with the Standard is not decisive in determining whether or not negligence has been established. The Standard operates as a useful guide as to what at the time was regarded as good practice when erecting signs and other indicia of road works so as to appropriately warn, inform and guide motorists who could be expected to negotiate such road works.

90 Because the specific problems created by these road works were not expressly covered by an example in the Standard, Mr Morrison tried to find an example which came closest. He chose figure 5.7 which indicated the signs and other indicia which should be used with a four-lane road which had a centre lane fully closed. As Mr Stuart-Smith pointed out, because that example required motorists to make a substantial lateral movement, lateral shift markers (LSMs) or other clear indicators that a lateral movement was necessary, would need to be installed on the approaches to those road works. Mr Stuart-Smith thought that no such need existed in relation to these road works because there was not a lateral movement such as was shown in the example.

91 While I accept the criticism of Mr Stuart-Smith that this example in the Standard was not on all fours with the particular road works under consideration, I also accept the approach of Mr Jamieson that if an exact example was not available in the Standard, what ought be done by a traffic authority was to comply as best it could with the principles of road works, signposting and delineation set out in the Standard.

92 Exhibit U comprised a plan of these road works as they were to be constructed in 1995. It is clear from that plan that the central island in the roundabout is not positioned in the centre of Alfred Street but is significantly to the East of that centre point and substantially encroaches onto the southbound lane of Alfred Street. To safely negotiate the road works relating to the splitter island and the central island in the roundabout would of necessity involve a significant lateral movement to the East for southbound motorists. Such a movement would not be as great as in figure 5.7 of the Standard, but it would be significant. In my opinion, compliance with the principles in the Standard did require the positioning of some form of LSMs or other device to make it clear to motorists heading South in Alfred Street that there was a change requiring a significant lateral move to the East in order to negotiate the road works.

93 In his reports and in his evidence, Mr Stuart-Smith placed considerable weight on photographs 1-4 in his report of 11 February 2005. Those comprised four photographs taken at approximately 10pm from various distances to the North of the intersection of Alfred Street and Fitzroy Street starting at 100 metres away and reducing to 25 metres. In relation to those photographs, I agree with the criticism by Mr Jamieson that the photographs appear to be slightly over exposed and therefore produce an effect somewhat brighter than the naked eye would see. Nevertheless they provide broad guidance as to the difficulties for a motorist in making precise observations when driving at night in that direction.

94 It was the evidence of Mr Stuart-Smith that by a close examination of photograph 3 (taken 50 metres away from the commencement of the intersection), it was clear that although the central island of the roundabout did significantly intrude upon the southbound lane of Alfred Street, one could clearly see a gap between the end of the central island and the commencement of the entrance into Fitzroy Street. That evidence assumed that the coloured mesh surrounding the central island would have been positioned very close to its final dimensions (which was not established but which could be inferred from the positioning of the mesh around the northern splitter island).

95 While I agree with Mr Stuart-Smith that a close examination of that photograph does allow such a conclusion to be drawn, I doubt very much that a driver heading South in Alfred Street at a speed in the order of 60 km/h would have had time to make such a close examination. That driver would be depending upon impression as much as exact observation given the time of night. If the driver were travelling at a faster speed, or if his faculties were adversely affected by disability or alcohol, then such an accurate observation would be all the more difficult. Contrary to the evidence of Mr Stuart-Smith, I am of the opinion that photograph 3 makes it clear how difficult it would have been for a driver heading South in Alfred Street at night to determine whether the southbound lane was blocked or not when both the North splitter island and the central island of the roundabout were surrounded with orange and white safety mesh.

96 A view of the intersection was conducted on the afternoon of 20 March 2006. The benefit to be gained from the view was limited in that it seemed to be generally accepted by the parties that there had been changes to the intersection and in particular to parts of the central island and splitter islands between 1995 and the date of the view. The exact nature of the changes was not known. What the view did emphasise was the effect of the slope in Alfred Street, particularly in the 30 metres immediately before the intersection with Fitzroy Street. The view confirmed the impression given by the photographs that this slope does reduce the level of observation available to a driver travelling South in Alfred Street. The night photographs taken by Mr Stuart-Smith emphasised that this reduction in vision increased at night.

97 Apart from the need for some form of LSMs, the expert witnesses were at issue as to the adequacy of the signs and their positioning. By reference to the perception reaction time of a driver travelling South in Alfred Street, the plaintiff’s experts concluded that the sign ‘changed traffic conditions ahead’ was too close to the intersection to provide adequate warning. It was generally agreed that this sign was positioned approximately 25 metres to the North of the commencement of the intersection.

98 The experts identified a distance before the road works as the “critical zone”. They disagreed as to the extent of this zone but the concept was accepted. There had to be sufficient distance within the zone to enable a motorist heading South in Alfred Street to perceive the presence of the road works and react adequately to them. That reaction would involve a change in speed and/or a change in direction. It seems to have been accepted that the average reaction time for a normally alert driver is approximately 1.5 seconds. Where the object in relation to which the driver needs to be alerted is unusual the reaction time can be considerably greater. Reaction times increase at night. It goes without saying that the reaction time for an intoxicated driver would also be greater.

99 The plaintiff’s experts were of the opinion that the apparent blocking of the southbound lane, which was the impression created by the configuration of these road works, was so unusual as to produce an extended reaction time of at least 2.5 seconds and probably more. Consequently the ‘changed traffic conditions ahead’ sign was much too close to the intersection to have the effect of providing adequate warning. By the time a driver saw it, he or she would have been too close to the road works to react adequately and in any event, in the absence of LSMs, it provided insufficient information as to the problem created by the road works.

100 Mr Stuart-Smith conceded that the Standard specified that the Advance Warning Sign should be between 40-80 metres from the commencement of the works for speeds less than 60 km/h. He relied upon the first black and yellow roundabout sign to fulfil that function since it was located approximately 40 metres away from the road works.

101 It seems clear, even on the approach of Mr Stuart-Smith, that the ‘changed traffic conditions ahead’ sign was too close to the intersection and road works to comply with the Standard. The conventional black and yellow roundabout sign would not operate as a warning. It was a conventional traffic sign which would not particularly attract the attention of a southbound driver at night. It would certainly not alert a southbound driver to the fact that something unusual was occurring ahead such as road works which gave the impression that the southbound lane was blocked.

102 It was agreed between the parties that the ‘keep left’ sign did not comply with the Standard. It was vertically oriented and the lettering was smaller than the Standard recommended. I also agree with the criticism that at night it would be very hard to read from a distance and would tend to merge with the mesh behind it. It is not without significance that in photograph C2 this sign appears as simply a white post.

103 It was the opinion of the plaintiff’s experts, based on photographs C1, C2 and exhibit U, that for a driver approaching the road works from the North in Alfred Street at night, the mesh surrounding the northern splitter island and the central island would give an impression that the southbound lane was blocked. There was nothing in the signage (except the vertical ‘keep left’ sign) to indicate otherwise. It was their opinion that a reasonable response by a southbound driver would be to think that the only way through the intersection was to drive through the roundabout on its western side, ie on the incorrect side of the road. The fact that the southbound lane still remained open would not be obvious until the driver was almost into the intersection. In those circumstances, as Mr Jamieson put it:

“It is therefore considered that if a driver was approaching this site at (say) 65 km/h and moved across to the oncoming northbound lane, a predictable response to this “wrong” decision would be to heavily brake or turn the wheel to re-enter the southbound lane. Either action would produce a “yawing” movement of the vehicle – which would then result in a sideways skid and an impact with the pole positioned on the western side of Alfred Street.”

104 I appreciate that it is dangerous to reach conclusions based on photographs. What they depict is often different to that which the human eye sees. In this case it is clear that photographs C1 and C2 were taken from the kerbside lane and not from the centre lane where a southbound driver would be positioned. When the view was conducted, I placed myself in the kerbside lane at approximately the position from where the photographs were taken and then in the southbound driver’s lane in order to assess the difference in perspective. While such a difference existed, it was not particularly great. Accordingly, I have formed the opinion that photographs C1 and C2 do give a reasonably accurate impression of the perspective, which a southbound driver would have had of the road works, even though the photos were taken in the kerbside lane.

105 Based on that, and on the opinion of the plaintiff’s experts and on photographs 1-4 in Mr Stuart-Smith’s report of 11 February 2005, ie the four photographs taken at night, I am of the opinion that to a driver travelling South in Alfred Street at approximately 12.55am on 20 July 1995 the road works would have given an impression that the southbound lane was entirely blocked and that this impression would not have been corrected until the driver was very close, ie within 25 metres from the commencement of the intersection. On that issue I accept the opinion of the plaintiff’s experts in preference to that of Mr Stuart-Smith.

106 Evidence was given by some persons who regularly used Alfred Street in 1995 as to their observations of these road works. Mr Boursicot owned a building in Alfred Street. He used visit the building 3-4 times per week. He clearly remembered the first occasion that he became aware of the road works. He was travelling South in Alfred Street to visit a friend who lived in Kirribilli. He could not remember what signs were present. He remembered what he described as barriers with yellow colours. He gained the impression that the southbound lane was blocked and it was only when he slowed down, very close to the intersection, that he became aware that the southbound lane was still open. Until then he thought that it was necessary to drive to the West, ie on the incorrect side of the road to go through the intersection. This observation by him was made during daylight hours.

107 Mr Haldezos ran a restaurant in Alfred Street. He used drive South in Alfred Street through the intersection between 4am and 4.30am each morning. It was at this time of the day when his headlights were on that he first became aware of the road works. He described their colouring as red and white. When he approached the road works he thought the southbound lane was blocked and he drove through the intersection to the West, ie on the incorrect side of the road. It was only when he was passing through the intersection that he realised that the southbound lane was still open. He could not remember any signs being present without the assistance of the photographs. He did not slow down when entering the intersection.

108 Mr Cappie travelled to and from work by car every day in 1995 down Alfred Street, through the intersection with Fitzroy Street. He remembered when the construction of the roundabout commenced, although he could not offer a precise date. When travelling South in Alfred Street he had the impression that the southbound lane was blocked. He had no difficulty passing through the intersection because he slowed down.

109 Mr Russell was a security guard who was present in the offices of Kimberly-Clarke at 52 Alfred Street on the night of the accident. He heard what he thought were the squeal of brakes and a thump. From a balcony, which extended over Alfred Street, he saw the plaintiff’s car almost below him against the pole. It was his evidence that in the days before the accident when he was present in that building at about that time of night, on three or four occasions he heard drivers applying their brakes hard in circumstances where he believed they were travelling South in Alfred Street. It should be noted that he did not actually see this happen, but was relying upon what he heard. The view revealed that the balcony to which Mr Russell referred was positioned close to the intersection, overlooking it. He thought that the mesh had only been in position for a few days before the accident.

110 That evidence, particularly from Mr Haldezos, confirmed the conclusion, which I arrived at from my own consideration of the photographs, my inspection of the site at the view and my analysis of the competing evidence from the experts. It seems that for the first few days after work was commenced on the central island of the roundabout, the road works were so configured that they were capable of giving the impression to drivers travelling South in Alfred Street that the southbound lane was blocked at the intersection. The signage in place at the time does not seem to have altered that impression for those drivers who gave evidence.

111 Against that factual background, what are the legal principles which determine liability? The appropriate test is that set out in Brodie v Singleton Shire Council (2001) 206 CLR 512.

112 At p 577 [para 150] the majority stated the duty in the following terms:

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

113 Is the duty there articulated owed only to careful road users? The authorities suggest not. In a case, the facts of which bear a similarity to these, Deane J (with whom Gaudron and McHugh JJ agreed) made it clear that the duty was owed to persons who were not careful road users.

(March v Stramare

Clarke v Coleambally Ski Club Inc

114 The Council sought to distinguish this dicta on the basis that it applied only to the obligations of one driver to another. It was submitted that Brodie was authority for the proposition that a road authority only owed a duty to those using a road who took ordinary care. The Council cited cases where the duty of a council to pedestrians was stated in those terms.

115 I do not read Brodie in that way. It seems to me that Brodie draws a distinction between the duty owed to a road user in a vehicle and pedestrians. The point of distinction is obvious. A pedestrian because of his or her mode of locomotion has more time and more opportunity to examine the surface over which he or she is walking (Brodie [163]). Those advantages are usually not enjoyed by a motorist who is necessarily travelling at a greater speed and who may have other impediments to his or her vision. (See also Edson v Roads and Traffic Authority [2006] NSWCA 68 at [91]).

116 It seems to me that the duty owed by a road authority to motorists is not restricted only to those taking ordinary care. I cannot see why as a matter of logic there should be a distinction between the duty owed by one motorist to another (as in March v Stramare) and that owed by a road authority to a motorist. This is particularly so when in March v Stramare one of the vehicles had been left in a dangerous position.

117 The difficulty is to determine what are the appropriate limits to the duty. This is not a task which I propose to embark upon. It may well be impossible to specify precise limits in that each particular case will have to be looked at in accordance with its own facts. What does seem clear, however, is that the duty does extend beyond persons who are careful and sober when using the road and it ought have regard to inadvertence and thoughtlessness and those whose faculties are impaired, either naturally or by reason of the effects of alcohol. The grey area is the extent to which a road authority has to have regard to those persons. As was pointed out in Brodie ([161]) it is the precise nature of the defect which is important when considering the question of those persons to whom the duty extends.

118 On this issue I respectfully accept the analysis of Brodie by Bryson JA:

“… I respectfully observe that their Honours had not earlier formulated the duty in terms which required that a road be safe only for users exercising reasonable care for their own safety, although the terms of that sentence suggest that they had. In paras [150] to [152] there is no limitation of this kind to the class of road users to whom a duty is owed. The earlier formulation referring to persons using the road and themselves taking ordinary care is found in para [160] dealing with questions of breach of duty.

Sutherland Shire Council v Henshaw

119 Applying those principles, the Council as a road authority and as the entity supervising the road works through its servant Mr Marsh, owed a duty to the plaintiff to take reasonable care not to create a foreseeable risk of harm to him as a motorist. In fulfilling that duty it also had to take into account the possibility that as a motorist the plaintiff might be inattentive, might be driving too fast in the circumstances and that his faculties might be impaired, at least to the extent that his reactions were slowed.

120 It was foreseeable, as the Council appreciated, that unless appropriate signage and other indicia were put in position, the road works at the intersection of Alfred Street and Fitzroy Street could create a risk of harm to road users. On that analysis alone there was an obligation to properly signify and delineate the fact and nature of the road works.

121 The matter can be looked at in another way. Once the road works were commenced and surrounded by safety mesh, further content was given to the duty. An obligation arose to check that the signage and other insignia used were adequate to achieve the original purpose of not creating a foreseeable risk of harm to road users. That common law duty is in line with clause 2.5.7 of the Standard:

“On completion of the erection of the signs and devices and after any change is made in the arrangement, supervisory personnel should carry out an inspection before and after opening to traffic. This inspection should be carried out at the normal traffic speed, along the travel path, and past all of the signs and devices. The same inspection should be carried out at night with dipped headlights. If it is considered that the arrangement is confusing or unsatisfactory, it should be adjusted and reinspected.”

122 It follows from the findings of fact which I have made that after the road works had been commenced and the various warning devices shown in the photographs had been placed in position, it was reasonably foreseeable that drivers travelling South in Alfred Street might gain the impression from the signage and overall configuration of the works that the southbound lane was blocked and act accordingly. That such was a foreseeable risk was readily ascertainable by Mr Marsh had he travelled South in Alfred Street and made his own assessment. This was something which he was obliged to do when performing his function as supervising engineer on behalf of the Council.

123 This same proposition was put slightly differently by Hodgson JA:

“25 It can be said that a road authority that undertakes work on a road involving risk to road users is so placed in relation to road users as to assume a particular responsibility for their safety.

DAMAGES

153 Because of the date of the accident, the plaintiff’s damages are to be assessed under the common law without statutory restrictions.

General damages

154 In order to assess the plaintiff’s general damages, it is necessary to determine with some precision the injuries which he suffered in the accident. Except for the plaintiff’s headaches there is little dispute as to the physical consequences of the accident. There was no real issue that the plaintiff suffered a degree of permanent brain damage in the accident, but its extent was in dispute.

155 The plaintiff has been left with sensory loss on the right side of his body and a reduction in his ability to use his right hand in fine movements. Although he has been able to resume playing the guitar, that disability has prevented him regaining the high level of skill which he had before the accident. That is a loss which is keenly felt by him.

156 Although he is able to walk and even run, he does have a high level balance loss which can lead to him losing his balance unless he is careful. There is a small degree of facial asymmetry on the left side. I am not persuaded that his occasional slurring of speech is due to brain damage. I believe it is due to the substantial quantities of medication which he has been taking.

157 One of the issues at trial was whether the plaintiff’s headaches, which he now experiences, were a continuation of those headaches from which he was suffering at the time of the accident or whether they were something new and a direct product of the accident. Surprisingly, there is no medical opinion on this question.

158 The plaintiff is currently taking a substantial cocktail of medication on a daily basis (T.227-229). He takes Doloxene and Codeine for pain. I assume that this is a reference to his headaches. He takes Acimax for a stomach problem which was not identified; he takes Effexor for depression. He said that he took the pain medications Doloxene and Codeine five times a day. It was apparent from time to time while the plaintiff was giving evidence that the ingestion of this medication did cause some slurring of his words and appeared to slightly affect his mental acuity.

159 It was the plaintiff’s evidence that the headaches which he experienced after the accident were different to those which he had experienced before. He said that the pre-accident headaches were definitely migrainous in nature producing nausea and what he described as a knife-like pain. They were more debilitating and occurred more frequently than after the accident. Since the accident the headaches had been more diffuse in their extent, ie they affected the whole of the occiput, were less intense and occurred about three times per week.

160 The plaintiff’s realisation that the headaches after the accident were different to those before appears to have occurred some years after the accident. No such differentiation was made by him in histories given to the doctors who examined in 1995, 1996 and 1997. He did, however, in the histories given to the doctors on those occasions indicate that the headaches were less intense and occurred less frequently than before. Nowhere in those medical reports could I find any history that the headaches were different in type.

161 No doctor has expressed an opinion as to why the plaintiff requires the regime of medication which he is currently taking. The only exception relates to his anti-depressant medication. There are reports, which refer to the plaintiff’s need to take antidepressants such as Effexor. Dr Wright has indicated the background to that prescription. Unfortunately Dr Wright was given a quite incorrect history of the plaintiff’s pre-accident health, both as to headaches and as to problems with anxiety. Accordingly, his attribution of the need for anti-depressants to the accident has to be qualified.

162 It is also noteworthy in the reports of Dr Wright that contrary to his advice, the plaintiff continued to take nine 25 mg capsules of Zanax on a daily basis. Zanax is a medication which assists in the treatment of anxiety. Dr Wright was understandably concerned that taking that quantity of Zanax would produce memory problems and could produce an hypnotic effect on the plaintiff.

163 The plaintiff gave evidence about how difficult it was to find an appropriate GP, who would prescribe the medication which he needed, after the move to Melbourne in July 2004. It seems that the plaintiff sought treatment from a number of general practitioners who by implication appear to have refused to prescribe the medication which the plaintiff was seeking. I am of the opinion that to a large extent the plaintiff is self-medicating in relation to his headaches and that he is seeking treatment only from doctors who are prepared to prescribe the medication which he asks for.

164 There was insufficient evidence in the plaintiff’s case to persuade me that the headaches, of which the plaintiff currently complains, and in relation to which he takes massive quantities of Doloxene and Codeine are different to those from which he was suffering before the accident. It follows that I am not prepared to find a causal connection between his headaches and the accident. I do not propose to take those headaches into account in my assessment of general damages.

165 It is asserted on behalf of the plaintiff that as a result of his brain injury his personality has changed. It was the plaintiff’s evidence that he was a more outgoing, jovial person before the accident. It was his wife’s evidence that he was not as quick witted as before, and that he had entirely lost his sense of humour. She described him as being quieter, very withdrawn and not speaking unless spoken to. She had observed that it was difficult for him to initiate conversation.

166 I certainly found the plaintiff to be somewhat dour in presentation and there was never any suggestion of levity or humour in anything that he said. That appears to contrast with his presentation in the promotional video of 1985 (exhibit F), which is the only reasonably objective evidence which I have for his pre-accident personality.

167 I accept the assessment of the plaintiff’s wife on this issue and I find that the plaintiff has suffered a significant personality change as a result of the accident and as described by his wife:

“He is not as quick witted as before with the comebacks, and his sense of humour, which was the very thing that I loved about him, has totally in my opinion has totally gone. He is a lot quieter, very withdrawn, doesn’t speak unless spoken to, finds it very hard to initiate conversation unless I make them and there is no small talk with him, and it is just very quiet, very different.”

168 Relying upon a series of reports from Dr Roberts, the Council submitted that the plaintiff not only did not suffer from memory problems or cognitive defects as a result of his brain injury, but that he was deliberately feigning such deficits when he underwent psychological testing by Dr Roberts, Mr Blows and Dr Golus. The opinion of Dr Roberts on this issue was significantly weakened when it emerged that she had wrongly calculated some of her test results, particularly in relation to those tests which were designed to detect persons who were deliberately attempting to falsify psychological test results. Her modified opinion became:

“In conclusion, the main grounds for exaggeration rest on the fluctuations in test scores. As I indicated in giving my evidence factors also likely to be involved in explaining the fluctuations in test scores are emotional problems and possible medication use but an element of exaggeration is not ruled out.”

169 I formed the opinion that the plaintiff was quite prepared to tailor his evidence to suit his case on occasions. His evidence as to the effect of alcohol upon him and as to his recollection immediately before the accident is an example of this. Nevertheless, I do not believe that the plaintiff was deliberately exaggerating his disability when he underwent psychological testing.

170 The point made by Dr Roberts as to fluctuations in scores is a good one. Her schedule of comparative test results was very useful. Of its nature traumatic brain damage does not deteriorate. It can improve. Accordingly one needs to look for an explanation where there are significant variations in scores achieved as a result of psychological testing. In this case the explanation is readily available in the plaintiff’s emotional problems and his ingestion of powerful medication. In addition, if he was deliberately exaggerating it is difficult to explain why some of his highest scores were achieved when he last saw Dr Roberts.

171 I am of the opinion that the plaintiff does have genuine memory problems, but I have had difficulty in assessing their extent. The problem arises not only from the fluctuations in tests results, but from the plaintiff’s evidence that he can read a book and recollect its contents and that he can remember some things and not others. It is usual when dealing with memory loss as a result of brain damage for the deficit to be consistent and more clear-cut. Both Professor Jones, a rehabilitation specialist, and Dr Somerville, a neurologist, conducted short form memory tests of the plaintiff in 1998 and neither reported any memory deficit. Quite obviously those tests are not as extensive as the psychological tests as to memory, but they are designed to reveal gross memory dysfunction if it existed.

172 I have concluded that the plaintiff does suffer genuine memory problems as a result of his brain injury, but that they are not as extensive as asserted by Mr Blows or by Dr Golus and that they do not have the debilitating effect suggested by Dr Buckley. It is not without significance that the high quantities of Zanax, to which Dr Wright referred, were being consumed by the plaintiff at the time when he attended Dr Roberts and Dr Golus in 1999 and underwent his psychological testing.

173 As a result of my observation of the plaintiff over a considerable period of time in the witness box, and as a result of my perusal of parts of his book, I am also of the opinion that his rigid mode of thinking, perseveration and obsessional traits are part of the personality change brought about by his brain damage. His long and discursive answers to many questions in which the plaintiff appeared to lose the thread of his response, I also attribute to his brain damage. This is indicative of the reduction in organisational skills, which the psychological tests revealed.

174 One of the more poignant features of the plaintiff’s brain injury is that he has retained most, if not all, of his pre-accident intelligence. He is therefore able to appreciate what he has lost. This, it seems to me, accounts for much of his anxiety, frustration and shortness of temper.

175 Taking those matters into account, I assess the plaintiff’s general damages at $175,000. I attribute half of those general damages to the past. Interest on general damages to the date of trial is $19,250.

Past economic loss

176 This case highlights the two considerations which have to be taken into account when calculating damages for economic loss:

Husher v Husher

177 It is clear that as a result of the accident the plaintiff lost the ability to work as a lead guitarist in the music industry. This would reduce, if not entirely eliminate, his ability to play as a guitarist in a working band.

178 The plaintiff appears to have lost, at least in part, some creative ability. I draw that inference from the fact that he has not produced any new songs or any music of any significance between the date of the accident and the present time. That was of the opinion of Dr Milton. One does not need to lose much of one’s intellectual ability for that creative spark to be seriously compromised. Nevertheless, he has obviously retained some creative ability or he would not have been able to hold down the job with “Next Generation Entertainment” for sixteen months.

179 The changes to the plaintiff’s personality, to which I referred in my analysis under general damages, has also reduced his capacity for employment. In the Furzer Crestani report upon which the plaintiff relies one of the two bases for calculating the plaintiff’s entitlement to economic loss is that uninjured he would have been able to successfully become part of the advertising industry and earn the same sort of money as he was earning with “Next Generation Entertainment” on a consistent basis.

180 I accept that submission. The plaintiff’s current somewhat humourless demeanour, coupled with his rigidity of thought and obsessional traits, would make him unsuitable for that industry. The reduction in his creativity and memory problems would make it less likely that he would be successful in such an industry. As indicated, the job which the plaintiff was actually able to perform for sixteen months was particularly suited to his limitations and it is unlikely that there would be other similar jobs available to him. This is particularly so if the plaintiff had to compete with persons of similar skill and talent with more ebullient personalities.

181 That is not to say that the plaintiff is unemployable. His responses when giving evidence and the high intellectual ability displayed in his book, persuade me that the plaintiff could work in a clerical position. This is particularly so given his high level of computer skills and the fact that such work does not require team work or significant co-operation within a group. As the CRS report made clear, the plaintiff would not like performing such work, either before or after his accident, but I am of the opinion that it remains within his capacity. I do not regard the plaintiff as totally unemployable.

182 I make that finding notwithstanding the evidence of Dr Buckley (T.495). In my opinion Dr Buckley’s assessment of the plaintiff’s intellectual ability was unduly pessimistic and he did not adequately appreciate the nature of the work which the plaintiff had been able to perform at “Next Generation Entertainment”. Dr Buckley did not fully appreciate the high level of computer skills which the plaintiff possessed.

183 In very general terms the measure of what the plaintiff has lost is the difference between what he would earn in a clerical job and what he would have earned in the advertising industry as calculated by Messrs Furzer Crestani. In attachments A1 to A4 to the Furzer Crestani report the wage rates for a number of clerical jobs are set out.

184 The more difficult question is to work out to what extent the plaintiff would have made use of his undoubted abilities had he not been injured.

185 “Australian Crawl” broke up in February 1986. In the nine years which elapsed between that date and the date of the accident, the plaintiff only worked on a reasonably successful basis for approximately two years while he was in Singapore in 1989-1990. There is even some doubt about the level of success enjoyed during that period, given the lack of documents. His work in Jakarta in 1994 could not be regarded as successful.

186 There were no signs at the time of the accident that the plaintiff was going to settle down and look for steady employment outside the music industry. On the contrary, in the five months that he was in Sydney before the accident he was trying to recreate another successful band. Since the break-up of “Australian Crawl” the plaintiff had been unsuccessful in finding any remunerative work in Australia. It is not clear whether and to what extent that situation would have changed if the plaintiff had not been injured.

187 The other complication in trying to work out what the plaintiff would have earned had he not been injured, is his state of health at the time when he was injured. The plaintiff’s evidence was that his headaches at that time would only respond to Pethidine. Although I have found that the plaintiff was not at the time addicted to Pethidine, he was certainly very close to it. When he was affected by a migraine headache, he was unable to work. Those headaches were occurring on a frequent basis per week. Rehearsing after hours with David Peach and other band members is quite different from trying to hold down a conventional job with regular hours of employment.

188 I am not persuaded that the plaintiff would have been capable of performing work in the advertising industry on a regular basis unless and until his headache and neck problems were properly treated. It is clear from the medical evidence for the period December 1991 – July 1995 that virtually no success had been achieved in either identifying the source of the plaintiff’s headaches and neck problems or in treating them. There was no indication at the time of the accident that a successful resolution of those problems was likely to occur in the future.

189 On the other hand, after the accident the plaintiff was able to work on a fulltime basis in the advertising industry for sixteen months despite the presence of the headaches for which he is currently taking medication. It is true that the plaintiff’s headaches following the accident do not appear to be as severe as they were before. In view of my finding that the headaches both before and after the accident have the same source, I am of the opinion that there was at least a reasonable prospect of the plaintiff’s headaches resolving sufficiently between July 1995 and the present time to enable him to have worked fulltime in the advertising industry.

190 In order to take those two matters into account, I propose to reduce by 50% the plaintiff’s claim for past economic loss.

191 It follows from the above analysis that I reject entirely the suggestion that the plaintiff would have been successful in starting up a new band and replicating anything like the success of “Australian Crawl” had he not been injured. There is not, in my opinion, sufficient evidence to justify such a claim being allowed even on a loss of opportunity basis.

192 The Furzer Crestani report provides calculations which indicate the plaintiff’s loss of earnings in the advertising industry over the period since the accident. There were no calculations other than the general wage rates in attachments A1 – A4 to indicate what the plaintiff might have earned in the sort of clerical position which I believe he would have had the capacity to fill. Quite clearly such a clerical position would be paid at a lower level than the job identified in scenario two of the Furzer Crestani report. Although I have no precise figures, using the approach in State of New South Wales v Moss (2000) 54 NSWLR 536 it seems to me that a difference of $500 net per week over the period would be appropriate to represent the plaintiff’s reduction in earning capacity brought about by the accident.

193 If one then reduced that by fifty percent to have regard to the plaintiff’s poor employment record and the effect of the plaintiff’s pre-accident headaches and neck pain, and deducted half of the plaintiff’s actual earnings from “Next Generation Entertainment” the amount which I award for past economic loss is $110,375.

194 Since that loss was suffered over the whole of the period, I propose to use an interest rate of 4.5% per annum to have regard to the prevailing interest rates between 1995 and the present. Accordingly, the plaintiff is entitled to interest on past economic loss of $53,791.

Future loss of earning capacity

195 On behalf of the plaintiff it was submitted that by the date of trial, the plaintiff uninjured would have realised that he was unlikely to replicate the success of “Australian Crawl” in the music industry and would have settled into a more regular employment which ought be calculated either by reference to earnings in the advertising industry or by reference to the average weekly earnings of males in New South Wales. Because of the plaintiff’s pre-accident health problems, it was submitted that an additional 10% should be added to the amount to be deducted for vicissitudes, ie 25%. This deduction should be applied to either scenario one or scenario two in the Furzer Crestani report.

196 For the Council it was submitted that the best indication of what the plaintiff was currently able to earn was what he had actually earned with “Next Generation Entertainment”. When one combined that with his pre-accident health difficulties and difficulties in obtaining and holding employment, the plaintiff’s claim for future economic loss was modest and would be adequately dealt with by the award of a financial cushion. The figure of $100,000 for both past and future was submitted.

197 I propose to follow the same line of reasoning which I did in relation to the past with this exception. I am prepared to accept that by date of trial, had the plaintiff not been injured, he would have sought and obtained more steady employment probably in the advertising industry. I agree with the submission, put on behalf of the plaintiff that the most appropriate way of dealing with the plaintiff’s pre-injury health problems is to apply an increased figure for vicissitudes. I propose to apply a discount of 30% to have regard to those matters. In relation to the amount for future loss of earning capacity, it seems to me that the $500 net per week differential which I assessed for the past, is equally valid for the future for the same reasons. Using that approach the plaintiff’s damages for future loss of earning capacity are $232,750.

198 Using the Furzer Crestani approach to the calculation of superannuation losses, both past and future, the plaintiff’s loss of superannuation is $52,822.

Out-of-pocket expenses

199 No amount for past out-of-pocket expenses was claimed on behalf of the plaintiff.

200 In relation to future out-of-pocket expenses it was agreed between the parties that the plaintiff’s life expectancy was 36 years. Accordingly, the relevant 3% multiplier was 1156. The regime claimed on behalf of the plaintiff was calculated by reference to the opinions of Dr Buckley and Dr Murray Wright in respect of psychiatric treatment and the recommendations by Dr Buckley for specialist and general practitioner consultations. The claim for medication costs was made by reference to that medication which the plaintiff specified he was currently using. The total claim was $95,800.

201 It was conceded, on behalf of the plaintiff, that some offset would have to be made to have regard to the medication costs being incurred by the plaintiff at the time of the accident. In my assessment of general damages I found that the plaintiff’s headaches following the accident were not related to it. It follows that the plaintiff is not entitled to the cost of medication which he is taking for those headaches. Applying that finding and that concession on behalf of the plaintiff, I award the plaintiff $32,000 for future out-of-pocket expenses.

Past domestic assistance

202 The case put on behalf of the plaintiff was that he was entitled to Griffiths v Kerkemeyer damages for past assistance provided by his wife for 14 hours per week at a rate of $18 per hour. The plaintiff relied upon the evidence of his wife that after the accident she did all of the housework, the banking and that she did most of the cooking. It was also necessary for her to put up signs in the house such as “turn off the stove”, “turn off the lights”.

203 Reliance was placed on the evidence of Dr Buckley, a rehabilitation expert. Dr Buckley’s evidence on this subject was set out in his report of 3 May 1999, which he confirmed in his later report of 30 September 2002. In the report Dr Buckley said that because of the plaintiff’s hemiparesis, he would require handyman assistance for minor repair jobs, gardening and lawn mowing at the rate of 3 hours per week. He was of the opinion that because of the plaintiff’s hemiparesis he would require 5 hours per week of housekeeping assistance.

204 Towards the end of his evidence (T.532), Dr Buckley significantly altered the basis of that assessment:

205 Although that answer was not further elaborated on, I infer from Dr Buckley’s earlier evidence that what he was referring to was a problem with the plaintiff’s organisational skills and the need for him to be prompted to do various things.

206 On behalf of the Council it was submitted that the only time that the plaintiff required assistance was for about 12 months following his discharge from the Royal Rehabilitation Centre and that an undifferentiated sum of $20,000 would be sufficient to meet that claim. The Council submitted that physically there was nothing to prevent the plaintiff performing housework or performing handyman duties, provided he did not have to climb a ladder where his balance problems might come into play. It was also pointed out that the plaintiff and his family since the accident had been living in rented accommodation where most handyman duties would be performed by the landlord. The Council relied upon the assessment of Professor Jones in 1998 that the plaintiff did not require such assistance. Reference was made to the evidence that the plaintiff carried out repairs on the family car when required.

207 I accept that following the accident the plaintiff’s wife did the housework, did most of the cooking and did the household shopping. That does not mean that the plaintiff himself was not able to perform these tasks. There was no need for him to do so since they were being dealt with by his wife.

208 It was apparent from his wife’s evidence that the plaintiff was able to do housework, but simply chose not to because he was not interested in it. He did on occasion perform housework. The plaintiff was able to cook for himself and did so on occasions. The problem was that he was untidy and would not clean up afterwards (T.43.23).

209 In relation to shopping, the plaintiff does not seem to have been interested in shopping for groceries and household items. He did, however, do his own shopping particularly when acquiring equipment for his recording studio and for his computer and when purchasing medication (T.99-100).

210 The plaintiff’s wife resumed employment in 1998/1999 and has continued in employment since that date. While she was at work the plaintiff used work in his recording studio at home or otherwise engage in his own activities. The care of Lizzie was shared between the plaintiff and his wife depending on which of them was at home at the time.

211 The plaintiff’s wife gave evidence of an occasion in 1997 when she and Lizzie went to Singapore to visit her mother and the plaintiff was left to look after himself. She described the state of the house as being filthy when she returned from that holiday. That suggests to me not that the plaintiff was unable to carry out housework but that he was either not interested in doing so or needed to be prompted to do so. That latter consideration seems to be what Dr Buckley had in mind [204].

212 The concession by the Council of there being a significant need for assistance following the plaintiff’s discharge from the rehabilitation centre is reasonable and the allowance of $20,000 would seem to be appropriate. The difficulty is to calculate whether and to what extent the plaintiff has required assistance from his wife from then on, ie from late 1996 onwards.

213 The plaintiff’s evidence on this subject was that his wife looked after the domestic and the financial affairs of the family. As indicated, that was not entirely correct in that the plaintiff uses the money he receives from royalties for his own purposes and did likewise in relation to his earnings from “Next Generation Entertainment”.

214 His response to the proposition that his wife was likely to leave him following the trial was:

215 I do not accept the original opinion of Dr Buckley that the plaintiff’s physical disabilities prevent him in any way from looking after himself, performing housework etc. I am, however, concerned about problems with his organisational ability, his need to be prompted to do things or reminded to do things and what appears to be a lack of interest in looking after household matters, such as was demonstrated when his wife was on a holiday in Singapore during 1997. The assistance which the plaintiff’s wife has been providing in the past has in reality been of an organisational kind in running the household and prompting the plaintiff when appropriate. Doing the best I can on the limited evidence available, I am of the opinion that this assistance of a prompting kind has amounted to about 5 hours per week, ie $90 per week.

216 In accordance with that reasoning, I calculate the plaintiff’s entitlement to damages for past assistance to be $20,000 for the first year following his discharge from the rehabilitation centre and thereafter $45,630. I calculate interest on those damages at 4.5% per annum to be $31,749.

Future assistance

217 The same reasoning applies to the claim for future assistance. If, as seems likely, the plaintiff will have to live on his own for the future, he will be able to adequately look after himself provided he receives some assistance in organising himself and by way of prompting. It was agreed between the parties that an appropriate hourly rate to allow for future assistance would be $25. It seems to me that one hour of such assistance per week day, ie 5 hours per week, would satisfy the need which has been created in the plaintiff in this regard. That would give to the plaintiff damages for future assistance of $144,500.

Financial management

218 It was Dr Buckley’s opinion that the plaintiff’s deficits of higher cognitive function were such that he required assistance in the management of his financial affairs but that his deficits were not sufficiently serious as to require the intervention of the Protective Commissioner. The evidence of Dr Buckley was the only direct evidence on this issue.

219 Before his accident the plaintiff had not been a good manager of money, which he freely admitted. There was evidence in the trial that although the plaintiff’s wife looked after family finances in the sense that she co-ordinated the spending of her own earnings and the plaintiff’s pension, he managed the monies he received by way of royalties and had managed the monies he received from “Next Generation Entertainment”.

220 There was no direct evidence that the plaintiff’s ability to manage money had been reduced by the accident. I have found, however, that the plaintiff’s organisational abilities have been adversely affected and that he will require assistance in that regard and also by way of prompting and reminder insofar as the management of his home is concerned. It seems to me consistent with those findings that the plaintiff will also require some assistance in managing the verdict monies from this judgment. I anticipate that such assistance will involve an annual consultation with a financial adviser for at least the next 10 years. I propose to allow $1,000 per annum for the cost of that consultation and award damages of $9,000 under that heading.

Conclusion as to damages

221 My assessment of the plaintiff’s entitlement to damages is as follows:

General damages	$175,000.00
Interest on general damages	$ 19,250.00
Past economic loss	$110,375.00
Interest on past economic loss	$ 53,791.00
Future loss of earning capacity	$232,750.00
Superannuation loss	$ 52,822.00
Future out-of-pocket expenses	$ 32,000.00
Past assistance	$ 65,630.00
Interest on past assistance	$ 31,749.00
Future assistance	$144,500.00
$917,867.00
Less contributory negligence of 65%	$321,253.00
Financial management costs	$ 9,000.00
Total	$330,253.00

222 I enter judgment in favour of the plaintiff against the Council in the sum of $330,253.00.

223 No submissions were made as to costs. I propose that costs should follow the event unless either party wishes to make submissions in relation to costs for which purpose liberty is granted to either party to approach the court on seven days’ notice.

**********

31/05/2006 - Orders made pursuant to costs hearing on 31 May 2006 - Paragraph(s) 223

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Citations

Binks v North Sydney Council [2006] NSWSC 463

Most Recent Citation

North Sydney Council v Binks [2007] NSWCA 245

Cases Citing This Decision

1

North Sydney Council v Binks [2007] NSWCA 245

Cases Cited

12

Statutory Material Cited

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Leichhardt Municipal Council v Montgomery [2005] NSWCA 432

Vairy v Wyong Shire Council [2005] HCA 62

CITATION:	Binks v North Sydney Council & Anor [2006] NSWSC 463 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13/03/2006, 14/03/2006, 15/03,2006, 16/03/2006, 17/03/2006, 20/03/2006, 21/03/2006, 22/03/2006, 23/03/2006, 24/03/2006, 25/05/2006
JUDGMENT DATE :	25 May 2006
JUDGMENT OF:	Hoeben J at 1
DECISION:	Judgment for the plaintiff aginst the First Defendant in the sum of $330,253.00. Costs reserved.
CATCHWORDS:	TORT - negligence - duty of care of road authority to motorist - motorist affected by alcohol - confusing nature of roadworks and signs - causation - contributory negligence and apportionment - damages - brain injury - claim for economic loss of unemployed musician - attendant care.
CASES CITED:	Betts v Whittingslowe (1945) 71 CLR 637 at 649 Brodie v Singleton Shire Council (2001) 206 CLR 512 Chappel v Hart (1998) 195 CLR 232 at 238 Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 at [26-28] Edson v Roads and Traffic Authority [2006] NSWCA 68 at [91] Husher v Husher (1999) 197 CLR 138 at [7] Joslyn v Berryman & Anor (2003) 214 CLR 552 Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 March v Stramare (1990-1991) 171 CLR 506 at 520 Podrebersek v Australian Iron & Steel Pty Limited (1985) ALJR 492 at 494 State of New South Wales v Moss (2000) 54 NSWLR 536
PARTIES:	Simon John Binks - Plaintiff North Sydney Council - First Defendant AG Maitland Pty Limited - Second Defendant
FILE NUMBER(S):	SC 21088/96
COUNSEL:	P Webb QC/R Royle - Plaintiff M Joseph SC/N Polin - First Defendant No appearance - Second Defendant
SOLICITORS:	Selby Levitt - Plaintiff Phillips Fox - First Defendant No appearance - Second Defendant