Bold v Reed - [2003] WADC 226

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BOLD -v- REED [2003] WADC 226

CORAM: GROVES DCJ

HEARD: 24-26 MARCH & 20 JUNE 2003

DELIVERED : 23 OCTOBER 2003

FILE NO/S: CIV 183 of 2002

BETWEEN: JEFFREY WILLIAM BOLD
Plaintiff
AND
SAMANTHA JAYNE REED
Defendant

Catchwords:

Torts - Negligence - Motor vehicle accident - Plaintiff pedestrian struck down by defendant's car while crossing road - Failure of pedestrian to keep any proper lookout for own safety

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994, s 3C(3), s 3C(5)

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr K N Allan

Solicitors:

Plaintiff: Ilberys
Defendant: K N Allan

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

Fardon v Harcourt‑Rivington [1932] All ER 81
Fox v Wood (1981) 148 CLR 438
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81‑192
Pritchard v Evans, unreported; FCt SCt of WA; Library No 960146; 21 March 1996
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Chan v Fong (1973) 5 SASR 1
Gondoline Pty Ltd v Hansford [2002] WASCA 214
Jones v Bartlett (2000) 205 CLR 166
Pritchard v Evans unreported; HCt; 4 November 1996
Richmond Valley Council v Standing [2002] NSWCA 359
Wilkinson v Law Courts Ltd [2001] NSWCA 196

GROVES DCJ: On 21 September 2001 the plaintiff was proceeding as a pedestrian to cross Welshpool Road, Welshpool at a point some 100‑150 metres east of the traffic sign controlled intersection of Swansea Street and Welshpool Road. In the course of crossing Welshpool Road from the northern kerbside towards the southern side he was struck by a motor vehicle driven by the defendant in an easterly direction along Welshpool Road.
The plaintiff alleges that by reason of the negligent manner in which the defendant managed or controlled her motor vehicle a collision occurred as a result of which the plaintiff sustained serious injury and has been put to loss and expense and will be left with significant and permanent disabilities.
The defendant denies that she was negligent and says that if the plaintiff did suffer personal injuries, loss and damage the same were caused by or contributed to by the negligence of the plaintiff.

The plaintiff's background

The plaintiff was born on 18 August 1951 and was 50 years of age at the time of the accident. He was employed as a sales consultant with City Search Directories. He had held that position for about one and a half years. His role required him to call on prospective clients to solicit advertising in his employer's printed directories. He had previously worked in various occupations as a sales representative, in telemarketing and as an advertising consultant.
On 21 September 2001 at between 8.30 and 8.45 am he called on prospective clients on Welshpool Road, Welshpool. He had parked his motor vehicle in a parking area adjacent to those businesses. Those businesses are situated on the northern side of Welshpool Road. Having completed his business there he observed that over the road and on the southern side of Welshpool Road was the business premises of Opposite Lock. He had some time previously been referred to that business as a prospective client and decided then and there to make a call on Opposite Lock.
In the area where the plaintiff intended to cross, Welshpool Road has a four-lane carriageway and runs approximately in an east/west direction. The northern side two lanes are divided by a broken white line for traffic proceeding in an easterly direction. The southern side two lanes also divided by a broken white line, are for traffic proceeding in a westerly direction. The east and west bound lanes are divided by a double white line. Welshpool Road is for some distance in this area straight and flat.
The weather was sunny and clear and the roadway was dry. Before stepping from the kerb onto the roadway the plaintiff looked back to his right. About 100‑150 metres west of him Swansea Street joins Welshpool Road at an angle on the northern side. Well beyond that intersection to the west is the intersection of Albany Highway with Welshpool Road. When the plaintiff looked to his right he observed a white motor vehicle approximately 30‑40 metres beyond the Swansea Street intersection and in the kerbside lane travelling towards him. He looked left and observed approximately 300‑400 metres to the east that the boom gates at the railway crossing over Welshpool Road were rising and he observed traffic commencing to move from the crossing in a westerly direction towards him.
He stepped from the kerbside onto the roadway proceeding in a southerly direction. When he arrived at the broken white line on the east bound carriageway he observed a vehicle to come out of a driveway on the southern side opposite him and proceed into the kerbside lane travelling west. He also observed another vehicle further to his left (east) also turn from the south side onto Welshpool Road and into the centre west bound lane of Welshpool Road. The passage of these two vehicles prevented the plaintiff from proceeding straight across Welshpool Road and required him to stop and stand in a position approximately on the double white lines in the centre of the road. By the time those vehicles had passed the traffic from the railway crossing was approaching and it was not safe for the plaintiff to continue across.
The plaintiff observed a large truck in the centre lane approaching from his left and proceeding in a westerly direction. He described it as a large truck a little wider and over the lane in which it was proceeding. He recalled turning to his left (so he was effectively facing the oncoming truck) whereupon he was struck from behind in the area of his left buttock/hip. He did not know what had hit him. He was thrown into the air and came down on the roadway. As best as he could recall at least his head and upper part of his body were on or over the road surface and the rest of his body and legs were on or in adjacent proximity to the kerb on the northern side of Welshpool Road. He managed to get up and staggered two or three paces before falling to his knees. He was then assisted by two male persons onto a grass verge where he was laid down.
His recollection of events after the impact were hazy. He did not hear any sounds of a vehicle braking, a horn blowing or any other warning prior to the impact. He recalled coming down onto the road surface hitting the front left side of his head and his hands on the ground. Whilst lying on the grass he recalled some reference being made to damage to a bull bar and someone pointing to a small dark coloured four wheel drive vehicle which by then was off the roadway. He recalled a policeman coming to him. He also heard a female voice say words to the effect "Lexus of Perth" and he recalled thinking that the female person may have worked there. Lexus premises are on the corner of Swansea Street and Welshpool Road.
The plaintiff did not have a complete or clear recollection of what happened at or immediately following impact.
In cross‑examination he described the truck as being a "large truck, very wide" which appeared to be on the double line as it approached him. He twisted/turned his upper body to his left and acknowledged that he "could possibly have stepped back." In re‑examination he said that it was possible he may have stepped back but he did not have any actual recollection of stepping back.
A plan of the carriageway and depicting adjoining properties (Exhibit 5) indicates the width of the carriageway as some 13 metres. Each lane is 3.4 metres wide and from kerbside to centre double white lines is 6.8 metres. Thus, if plaintiff were struck whilst on the double white line he had to have been thrown some 6.8 metres to where he landed at kerbside.
The plaintiff was conveyed to Royal Perth Hospital by ambulance. He recalled experiencing pain in the area of his head, chest, the pelvic area and generally all over. A summary from the Royal Perth Hospital dated 22 September 2001 stated that the plaintiff had received:
"1. multiple abrasions
2.fracture of the infera pubic raumus of the pelvis on the left side
A CAT scan of the pelvis failed to reveal any other associated fractures or internal organ damage
He received grazes to both lower limbs. Although clinically he had fractured ribs, X-rays did not confirm this. He also underwent X-rays of the cervical spine, left shoulder, left foot and ankle, and chest and these failed to reveal any further fractures."
He was discharged from Royal Perth Hospital on 24 September 2001 on a walking stick and was given painkilling medication, Tramadol. A couple of days later he saw his general practitioner, Dr Ian Hewett, who prescribed further pain relieving medication. Dr Hewett (also a qualified physiotherapist) gradually commenced manipulation. The plaintiff went to stay with his parents for the first week after discharge and the following month at his girlfriend's place where she cared for him. He found the first six to eight weeks after discharge as being very difficult. He was severely hampered in walking and did so with the use of a walking stick for six to eight weeks. He had swelling of the legs and had to sleep with his legs up to avoid fluid collecting. His head injury which had been sutured repaired well. He had difficulty sleeping and was prescribed sleeping tablets. He was not able to return to work. His workers' compensation payments took some time to come through and in the interim he lived on his holiday pay entitlements. He had difficulty bathing and dressing himself and required help with domestic activities when he returned to his own residence.
He described his improvement as having been gradual and the pain experienced by him as becoming less severe over time. Pain in his left arm and shoulder lasted for about six weeks before it subsided. He still has some pins and needles in the left forearm but otherwise that condition has resolved. He still has pain in the left hip and pelvic area. About three or four weeks after the accident pain in the area of his cervical spine became apparent. To that stage any neck pain had been overshadowed by other areas of pain experienced by him. He also had pain in the lower back and noticed that about one month after the accident. The neck pain restricts movement of his head. The pain starts at his right shoulder and proceeds up into the neck and into the back of the head and he develops a neck ache with headaches. Pre‑accident he had no problems with his health or any parts of his body.
The plaintiff's current symptoms comprise neck pain, pain in the left side of the pelvic area and headaches every couple of days which are quite severe and for which he takes Panadeine Forte. His walking has improved and he finds that is now easier and he can walk up to 900 metre before the onset of pain in the pelvic/hip area. Likewise, he can stand for up to about one hour. Sitting gives him some difficulty and he compensates by distributing his weight onto his right side buttock and avoids sitting on hard surfaces. For some time after the accident he found driving difficult particularly using his left leg to work the clutch of his manual vehicle. Even now when travelling he needs to take a break every one to one and a half hours to stretch his legs and to take pressure off his left hip area.
Pre‑accident he engaged in the activities of water skiing each week in summer time, squash, hiking and jogging to keep fit which he did two times a week of up to three or four kilometres. He has not been able to undertake any of these activities since his accident. He has over the past six months had physiotherapy two times a month at $40 a visit. He continues to use Panadeine, 4‑6 tablets, per week and has a continuing Tramadol prescription.
Of his own volition he attempted a return to work in about April/May 2002 undertaking telemarketing for four hours per day three days per week for Consolidated Press. He managed to continue this for approximately three weeks but had to discontinue because of neck pain which he experienced and difficulty being seated all the time. The work environment was not flexible to enable him to get up and move about to exercise as he felt he needed to. That test satisfied him that he was still not then ready to return to full time employment.
Dr Hewett gave him a clearance to return to work and he went back to City Search Directories with a view to working reduced hours. When he presented himself at the end of May 2002 he was however given his redundancy cheque. Thereafter he actively sought employment in telemarketing working reduced hours. In November 2002 a friend offered him some part‑time work four hours per day three days per week which involved driving and getting in and out of his motor vehicle. He found that was still causing him difficulty. On 26 November 2002 he commenced employment with Controlled Marketing working four hours per day five days per week. He continued in this employment until 14 February 2003. He found the circumstances there to be quite arduous because of continuing pain in the neck and pelvic area and his circumstances could not be accommodated. That affected his performance and he left that employment. About a week later he commenced employment with Morrissey Malcolm (Marvet Pty Ltd) where at the time of trial he was continuing to work. He works from 9.00 am to 1.00 pm five days per week. This employer provides more flexibility in that he can get up and walk around and use a telephone head set and he finds that he can manage much better in this environment. He finds that four hours work is his limitation however.
I found the plaintiff to be quite frank in his assessment for the future. He feels that he would be now able to re‑engage in the type of employment he was in prior to the accident and which involves driving and walking to visit customers. He said that he felt that he could now do it and he would like to try to get into that line of employment. He believes that in time to come he will be able to get back to that work. He also said that since November 2002 his condition has stabilised with some minor improvement.
The plaintiff related to each of the doctors what he could recall as to the circumstances of the accident. There are variations in the accounts which he gave to each of the doctors but I do not regard those as being significant.
In cross‑examination certain statements said to have been made by him to the witnesses Bradley Reed and Constable McDermott were put to him. They were said to be admissions made by him at the scene. In respect to each of those statements the plaintiff's evidence was that he did not recall saying those things. That may well be understandable having regard to the traumatic experience which he had just experienced.
Medical reports of Dr Hewett and Mr Edibam of 1 June and 18 June 2002 respectively assessed the plaintiff as then being fit to return to full time employment albeit with qualifications. When asked as to why he did not believe he could then have got back to his pre‑accident occupation he said it was mainly because of his neck pain and secondly because walking around and getting in and out of a car can cause him discomfort. He described the pain as being low frequency at times and sharp at other times and that it does affect his performance at work.

Evidence of Samantha Jayne Reed

Ms Reed is aged 31 years and is employed in sales and marketing. On the morning in question she was driving her Suzuki Sierra motor vehicle in a westerly direction along Welshpool Road in the kerbside or northern most lane. The speed limit in the area is 60 kilometres per hour and she was travelling at that speed. She is familiar with the area and whereas the traffic on Welshpool Road is usually quite heavy at this hour of the morning she observed that on this occasion it was sparse. There were no other vehicles travelling in the same direction in near proximity to her.
It was her evidence that as she was proceeding along Welshpool Road she observed a male person walking across the footpath on her left ahead of her. She was not able to say how far ahead. She had a clear view of the person as he walked in a southerly direction across the footpath off the kerb and onto the roadway and across the kerbside lane in which she was travelling. Ms Reed did not adjust her speed of travel as the person cleared her lane and moved into the adjoining or centre most lane for traffic travelling east. She said that the person did not proceed as far as the centre double line when without warning the person "turned on his heel away from her", ie to his left (which would indicate his back to her), "and without warning double backed in the direction from which he had come without stopping". He walked immediately into the path of her vehicle. As she was now only a short distance from him it left her no time to avoid the person. When she realised the dangerous situation she applied her brakes. She was unable to say whether the brakes had any retarding effect prior to impact. She maintained her line of travel in the kerbside lane throughout and did not deviate. The front right hand side (driver's side) of her vehicle struck the defendant. She observed him to go across the bonnet to her left and towards the kerb.
Ms Reed stopped her vehicle a short distance from the point of impact in the kerbside lane outside the premises of Gronbek Security. As she was alighting from her vehicle she called emergency services on her mobile phone. She proceeded to walk around the front of her vehicle to the kerbside and she observed the defendant walking along the footpath not far away. She went to him and suggested that he sit down which he did. She observed two men come out from the adjoining premises of Gronbek Security. One went to get a towel. She said that the plaintiff was conscious. He said to her "I'm sorry". Ambulance and police arrived a short time later. Ms Reed did not move her vehicle from its position wholly on the roadway in the kerbside lane. She called her husband who later came and moved it onto the parking area.
In cross‑examination she described having observed the plaintiff's movement as he crossed the footpath onto the road and as he walked across the left hand lane into the centre lane. She maintained that he turned on his heel in a continuous movement without stopping and proceeded to walk back in front of her car. She was adamant that she was travelling at 60 kilometres per hour and added "if anything a little less". She agreed that in her written statement to police she did not suggest that she was travelling at less than 60 kilometres per hour.
She did not slow her vehicle at any time as the person was proceeding in a southerly direction. She said there was no need for her to do so. When she was aware of the danger she went for her brakes but was not able to say if she had slowed at all before impact.
She was referred to two statutory declarations which she made in December 2001. She acknowledged that in neither of those declarations did she state that she saw the plaintiff on the footpath. In one declaration she said that "When I first saw him he was crossing the road…". In May 2002 she saw Constable Johnson and offered him a copy of the statutory declaration signed in December 2001. She adopted that statement again declaring it to be true by signing it as her statement. She agreed that on three occasions (two statutory declarations and on affirmation) she made no reference to seeing the plaintiff crossing the footpath. Her explanation in re-examination so far as the final statement was concerned was that she had provided to the investigator a copy of her earlier statutory declaration, which was simply copied into the later document.

In one of the statutory declarations (par 44) she states that she struck the plaintiff centrally. Her evidence was that she believed that it was towards the right hand side where the vehicle first struck the plaintiff and he flew up onto the bonnet.
Pressed again and with vigour by plaintiff's counsel she maintained that she first saw the plaintiff as he was walking across the footpath. She agreed it was possible that she did not get her foot on the brake before impact. She also did not deny that she was travelling at 60 kilometres per hour at impact.
In re‑examination leave was granted to defence to put to Ms Reed answers which she had given to interrogatories. My reasons for allowing what was otherwise a self‑serving statement be put to the defendant in re‑examination were stated at trial. Her answers to interrogatories sworn 21 August 2002 were in fact to the like effect as the account given in her evidence at trial. They state that she first saw the plaintiff "walking across the footpath on the north side of Welshpool Road", that she was travelling at 60 kilometres per hour and that when she observed the plaintiff to double back towards her she braked immediately. Thus her evidence was not of recent invention.

Evidence of Ian Gordon Hewett

Dr Hewett was the plaintiff's general practitioner and as well as his medical qualifications he also has a Diploma in Physiotherapy and a Graduate Diploma in Manipulative Therapy. The plaintiff attended him on 25 September 2001 following his discharge from hospital. He provided medical certificates certifying the plaintiff as being totally unfit for work. His report (Exhibit 10A) dated 26 November 2001 stated that the plaintiff "…currently remains unfit for work because of ongoing pain and lack of mobility in relation to his fracture as well as to his soft tissues of his spine." In his medical certificate dated 5 May 2002 Dr Hewett certified the plaintiff "Fit to return to pre‑disability duties, but requires further treatment". He wrote on the certificate:
"…patient remains symptomatic but is fit to return to work but will require further medical surveillance at least initially. To avoid prolonged standing, prolonged walking, possibly prolonged sitting. Phone work would be appropriate and some client contact."
Dr Hewett in his report of 1 June 2002 (Exhibit 10B) assessed the plaintiff as continuing
"…to show evidence of his significant trauma and particularly in relation to his ongoing spinal soft tissue injuries. The presence of a cervical disc protrusion are consistent with his traumatic injury and I believe may well have been caused by the injury but definitely would have been made worse by the injury."
His prognosis was for ongoing symptoms related to permanent residual dysfunctions of the cervical and lumbar spines, worse on the left side and vulnerable to further exacerbations from time to time. He said that the plaintiff will be restricted in all forms of physical activities, employment wise, social and in normal activities of daily living.
He considered that "telephone work" was worth a trial and expressed the view that a headset would be preferable to holding a telephone to the ear all day long which would provoke symptoms. He considered that prolonged sitting would aggravate his symptoms and he would require to be able to get up and move about frequently.
The last occasion Dr Hewett saw the plaintiff was 6 August 2002 when he certified him off work through to 27 August 2002. In cross‑examination he referred to the soft tissue injury and the radiological evidence of a disc protrusion. Asked whether that might be simply as a result of degenerative change he said that such a conclusion could be open to interpretation. However, the radiological evidence, ie disc protrusion could have been caused by the accident, was consistent with having been accident caused or was consistent with being aggravated by the accident.

Evidence of Alan Home

Dr Home is a consultant in occupational medicine. He saw the plaintiff on 29 May 2002 (report Exhibit 11). It was his opinion then that the plaintiff "…has regained a capacity for full time work in his pre‑accident employment as a sales consultant." Expanding on that he said that includes telephone work, driving around and visiting clients. The radiographs and CT scans of 20 February 2002 showed longstanding degenerative changes in the lower cervical spine and mild degenerative change involving the lumbo‑sacral facet joints. It was his evidence that these degenerative changes were commensurate with a person of the plaintiff's age. As the plaintiff did not have a previous history of back pain that would indicate that his symptoms were asymptomatic prior to the accident. Given that five months post accident they were symptomatic Dr Home was satisfied "on balance the accident is what has caused these symptoms to occur."
On the plaintiff's clinical presentation the limited analgesia which he was using and the fact that he told Dr Home that he was looking for work the doctor formed the conclusion that the plaintiff was then fit for work. He found it a little surprising that the plaintiff was still intolerant to work full time. It was his view that provided the plaintiff is able to get up and walk around at regular intervals he would be able to undertake work full time. Prolonged sitting however could cause some exacerbation. The plaintiff indicated to him that he had a tolerance of walking for 45 minutes.

Evidence of Dr Ratan Edibam

Dr Edibam is an orthopaedic surgeon. He was called on behalf of the defendant. The plaintiff had been referred to him by the defendant and he saw him in June 2002 and March 2003 (reports Exhibit 13A and 13B). At the first consultation Mr Edibam reviewed X-rays and CT scans of the plaintiff's cervical spine and lumbar spine. He noted that the X-rays of the cervical spine showed degenerative changes at C5/6 and C6/7 as well as C7/T1 levels. He considered the findings were of long standing degenerative changes. The X-rays of the lumbar spine showed no evidence of any abnormality, there was no evidence of any bony injury and the disc heights were well maintained. Mr Edibam's report does not indicate the date of the X-rays which he reviewed and nor was he able by reference to his notes to indicate a date. He was not able to say he had not seen at the first consultation the X-rays and CT scans taken on 20 February 2002. He considered that those changes had taken place over a number of years preceding the accident. He concluded that the degenerative changes in the cervical spine were of long standing and that it was possible that the plaintiff may have sustained soft tissue injuries imposed upon the degenerative changes. His prognosis was that they will ultimately resolve with time. As regards the lumbar spine there was no evidence of any soft tissue or bony injury and he considered the plaintiff may have sustained minor muscle or ligamentous injury.
He opined that there "seems to be some exaggeration of his symptomatology and there was no inconsistency between his symptoms presentation and clinical findings." He could see no reason why the plaintiff could not return to his pre‑accident employment as a sales consultant on a full time basis. It was apparent, however, that he was devoid of any information pertaining the nature of or demands of the plaintiff's job in which he was engaged pre‑accident. He also noted that there appeared to be a quite exaggerated response to palpation as far as tenderness was concerned, but otherwise there was no evidence of any other objective clinical disc inconsistency. The basis for so concluding was that the plaintiff had responded in a way "greater than he had expected." He concluded that there did not appear to be any permanent disability as a result of the accident apart from the plaintiff's symptomatology that he complains of.
Mr Edibam reviewed the plaintiff again some nine months later and upon clinical examination, with some minor variances, his findings were much the same. On clinical examination he found tenderness over the mid and lower cervical spine and at the cervico‑occipital junction. Examination of the lumbar spine found tenderness from L4 down to the lumbo‑sacral junction. On this occasion he concluded that the plaintiff was then
"…partially incapacitated as he is only working part‑time. He feels that he cannot undertake full time work however over a period of time he would be able to get full time work and I would estimate that to be no more than 3‑4 months."
Some residuary symptoms will remain but in his view they will not be incapacitating.

Evidence of Professor Francis Louis Mastaglia

Professor Mastaglia is a consultant neurologist. He was called by the plaintiff. He saw the plaintiff on 26 April 2002 (report Exhibit 14).
It was Professor Mastaglia's opinion:
"As it is now some nine months since the accident, and in view of the fact that (the plaintiff's) neck symptoms and headaches have continued to recur in spite of ongoing treatment, I think it is unlikely that he will make a full recovery and it seems likely that he will be left with residual symptoms and that he will require ongoing treatment."
After taking a history and examination it was his conclusion that, in addition to the fractured pelvis and rib fractures the plaintiff had sustained an injury to the cervical spine as well as a mild concussive head injury. He considered that the plaintiff's continuing headaches were of cervical origin and related to his neck injury.
As to his findings of a "mild concussive head injury…" he based that on the plaintiff's account that he was unclear as to whether or not there was a period of unconsciousness and the fact that the plaintiff was not aware that there had been a loss of consciousness. He indicated that if it was the finding that the plaintiff only had a patchy or hazy memory of events post impact that too would confirm the suggestion of a mild concussive head injury. Further, the severity of the head injury consequent upon impact on the road would be compatible also with there having been a loss of consciousness. That loss of consciousness might only have been brief and only a relatively mild concussion.
There was no indication of retrograde amnesia in that the plaintiff's ability to describe events prior to impact was clear. He indicated that if there had been a brief period of unconsciousness he would afterwards be able to talk and communicate but he did not consider that the plaintiff would have a 100 per cent recollection of detail and he did not think that such recollection would be very reliable at all.

Evidence of Dr G Mastaglia

Dr Gino Mastaglia is a physician in rheumatology. He saw the plaintiff in February 2002. His report of 27 February 2002 was tendered by consent (Exhibit 9).
At the time of his review the plaintiff still had pain and swelling in the right leg, a painful stiff neck with headaches, pain extending onto the trapezius muscles and into the interscapular area of the thoracic spine. He was also experiencing low back pain especially left sided, around the hip, pain in the left arm and tingling of the hands. His report concluded:
"He has significant musculo skeletal problems which will take time to recover from and he will do best by exercising using the muscle relaxant and having his Tramadol as back‑up."

Evidence of Dr Philip Hardcastle

Dr Hardcastle is an orthopaedic surgeon. His experience is in orthopaedic and spinal disorders. He reviewed the plaintiff for a medico/legal assessment on 26 June 2002. His report of that date was tendered by consent (Exhibit 12). He was not called to give evidence.
At the stage of his review he found the plaintiff's recovery had been adequate "…and what would be expected from such injuries in the absence of any skeletal injury or neural compression." He expected there would be further recovery but said that was likely to be slow. He was not able to determine whether there would be any permanent disability but was satisfied that the short term significant impairment was likely to continue for at least another six months. He assessed loss of cervical function of 20 per cent and a loss of thoraco lumbar function of 15 per cent.

Evidence of Senior Constable Mark David McDermott

Senior Constable McDermott was attached to the Cannington Police Station and attended the scene at Welshpool Road shortly after the accident. On arrival he observed an ambulance pulled up on the parking area in front of the business premises of Gronbek Security. He also observed stationary in the kerbside lane immediately out the front of Gronbek Security a small four-wheel drive dark coloured vehicle. The police car was parked a couple of metres behind that vehicle. Constable McDermott had no conversation with the driver of that vehicle. He ascertained that there was a male person lying on a stretcher in the back of the ambulance. He went to the back doors of the ambulance to ascertain from the ambulance officers the condition of that person. He observed blood on the patient's face. He did not speak directly to the patient. The patient did however volunteer to him that he was walking across the road, that he turned back and that it was his fault. Constable McDermott and the ambulance officers were standing at the back doors of the ambulance when that was said.
In cross‑examination he acknowledged that he made no notes of the conversation at that time, that it was his police partner who spoke with the defendant and that when he was at the back of the ambulance his partner was getting the name of witnesses, etc. The witness was not cross‑examined on what he claimed to have heard the plaintiff say and that evidence went unchallenged.

Evidence of Thomas John Bradley

Mr Bradley is 46 years of age and is employed with Gronbek Security. He heard an impact. He was standing at the roller door of his employer's premises with a fellow employee Roccy Coomer. The roller door is about 30‑40 metres from the roadway. He went towards the road and observed a male person staggering along in the vicinity of the crossover which leads into Gronbek Security's parking area. The person was moving to Mr Bradley's left (an easterly direction) towards the adjoining car yard. Mr Bradley went to him and told him to stop and to lie down and he assisted him to the ground on an area off the footpath but adjoining the adjacent premises. He observed that there was also a young lady (who he later learned was the driver of the car) present and shortly after others came to the scene. He observed the plaintiff bleeding from the head and he called for a wet towel. There was also a reasonable size bump on the right side of the head and the plaintiff complained to him of pain in his hip and leg on the right side. The plaintiff was not screaming out in pain but by Mr Bradley's observation he was in a great deal of pain. Mr Bradley talked to the plaintiff whom he said "…appeared to be quite lucid, looking at us and he said he was pretty silly as he crossed the road and turned back and got hit." He repeated that or words to similar effect on at least two if not more occasions.
He recalled that the plaintiff's mobile telephone rang and Roccy Coomer answered it. It was the plaintiff's employer calling. The girl at the scene asked the plaintiff if she could do anything for him and he requested that she call his parents or his mother and his wife. Mr Bradley remained with the plaintiff for approximately 20 minutes until the ambulance arrived. He observed the defendant's vehicle to be parked in the left hand lane right out in front of the area where the plaintiff was laid on the ground. He remained adamant under vigorous cross‑examination that the plaintiff had said that he had "crossed the road and turned back" and said that "I was silly" and words to the effect "it's my fault I turned around".

Evidence of Roccy Francesco Coomer

Mr Coomer is the manager of Gronbek Security at Welshpool. He was in company with Mr Bradley when he heard a squeal of brakes and a thud. Realising there had been an accident he proceeded out towards the road and observed a male person in the area of the crossover into Gronbek's parking area staggering along in an easterly direction. Mr Bradley went to the person's aid and assisted him to the ground in a grassed area at the front of his premises and adjacent to its eastern boundary. In approximately the same area and in the kerbside lane, he noticed a vehicle parked at the kerb. On subsequent examination he noticed denting to the bonnet of this vehicle.
Mr Coomer remained with the injured person who was conscious and by Mr Coomer's assessment aware of what had happened. This person said on two or three occasions that "… it was his fault …" and "… he was going to cross the road and turned back …" and "… he didn't look …". He reiterated Mr Bradley's evidence regarding the telephone calls. Again by Mr Coomer's assessment the injured man was lucid and had no difficulty in providing the telephone numbers to the girl present so she could make calls on his behalf.

Plaintiff's allegation of negligence

The plaintiff alleges that the motor vehicle being driven by the defendant struck him by reason of the negligent manner in which the defendant managed or controlled the vehicle. It is pleaded that the defendant was negligent in that she:
"a.failed to take any or any proper lookout
b.failed to observe the plaintiff who had been positioned and stationery in the centre of Welshpool Road
c.entered into Welshpool Road at speed and in such a manner as to negligently collide into the plaintiff who was positioned and stationery in the centre thereof
d.failed to swerve, apply her brakes or take such other evasive action so as to avoid the plaintiff, the existence of whom the defendant knew or ought to have known."

The defendant's response

The defendant denies that she was negligent as alleged and says that if, which is denied, the plaintiff did suffer any personal injuries, loss and damage the same were caused by or contributed to by his negligence in that he:
(a)after proceeding to cross Welshpool Road from north to south and having reached the righthand side lane for eastbound traffic turned without notice and immediately proceeded to reverse his direction of travel so that he travelled from south to north back into the kerbside lane straight into the path of the defendant's vehicle;
(b)failed to keep any or any proper lookout;
(c)(deleted);
(d)failed to heed adequately or at all the presence of the defendant's oncoming vehicle.

The plaintiff's reply

Prior to trial the plaintiff had not filed any reply to the defence. At the commencement of trial the plaintiff sought and was granted leave to present a reply. By the reply the plaintiff denied that he was in the northernmost lane on Welshpool Road when struck by the defendant's vehicle. Furthermore, and pleaded in the alternative, it was said that:
"If the collision occurred as pleaded by the defendant, then the collision was caused by the negligent manner in which the defendant managed or controlled her vehicle …"
and that she was negligent in that she:
"(a)failed to keep an adequate lookout;
(b)drove at an excessive speed in the circumstances of the plaintiff being present as a pedestrian on the eastbound lanes on Welshpool Road;
(c)failed adequately or at all to brake or otherwise manoeuvre the defendant's vehicle so as to avoid colliding with the plaintiff;
(d)failed to slow down as she approached the plaintiff whilst he was a pedestrian on the eastbound lanes of Welshpool Road."

Analysis of the evidence

Before stepping off the kerbside the plaintiff observed a white motor vehicle approximately 30‑40 metres beyond the Swansea Street intersection in the kerbside lane travelling in an easterly direction towards him. That would put the vehicle approximately 130‑190 metres away to the plaintiff's left. He stepped onto the roadway. There was no evidence that he subsequently checked the rate of progress of this vehicle towards him. I infer from that that he did not look again to his right after he stepped onto the roadway.

The defendant's Suzuki Sierra is a dark grey colour with a silver bull bar on the front. On her evidence she was proceeding in an easterly direction in the kerbside lane. She was not aware of any other traffic around her proceeding in the same direction. Her statutory declarations omitted mention of observing the plaintiff crossing the footpath before stepping onto the roadway. That is a matter of detail. Whether she did or not does not detract from her evidence. That she saw the plaintiff prior to him stepping on to the roadway is not suggestive that she should have taken any extra precaution. The fact is she observed the plaintiff to cross the kerbside lane ahead of her safely and without there being any need on her part to slow or otherwise take any precautionary measures.
It was apparent to the defendant that the plaintiff was intending to cross to the southern side of Welshpool Road. She had him in view throughout the time that he was on the roadway. She had no reason to anticipate his next movements that being as she described, that he "turned on his heel away from her and without warning doubled back in the direction from which he had come without stopping".
That he "turned away from her" is consistent with the plaintiff's recollection that he did turn to his left. He acknowledged that he may have stepped back although he did not have an actual recollection of having done so.
The plaintiff's recollection as to his movements after he observed the large truck approaching from his left are sketchy. He did recall turning to his left so he was effectively facing the on coming truck. He may have stepped back from the centre line given that he observed that the truck was "a little wider and over the lane in which it was proceeding." Understandably if that were the case and he had been standing on the centre double white lines it would have been prudent for his own safety that he step back some distance at least to allow the truck to pass by him safely. What is apparent from his own evidence is that if he did step back he did not look behind to see what if any vehicles might have been in near proximity to him and travelling in the eastbound lanes.
The plaintiff was struck by the defendant's vehicle in the area of the left hip. He was thrown up onto the bonnet. Photographs of the vehicle indicate denting of the bonnet centrally at the front and to the centre and right of the bonnet (as one looks at the front of the vehicle). From the drivers perspective the plaintiff when struck was thrown up onto the bonnet and across to the left side of the vehicle. That is consistent with the dents to the vehicle as shown in the photographs.
Neither the plaintiff nor the defendant was able to say to what height or distance the plaintiff was thrown after being struck. On the plaintiff's evidence he recalled coming down onto the road surface. His body was either on or in close proximity to the kerb on the northern side of Welshpool Road with his head and upper part of his body on or over the road surface. If he had been at the centre double lines of the roadway when struck it would have required the defendant's vehicle to be travelling close to the double lines in the centre most lane and for him to have been thrown some 6.8 metres across both of the east bound lanes for his body to come to rest at or in close proximity to the northern kerb line.
The defendant observed the plaintiff upon being struck going across the bonnet of her vehicle to the left. That would suggest a lower trajectory of his body and the probability that when he came off the bonnet he fell more closely to the left side of the vehicle. That is in contradiction to the possibility that when struck his body was thrown high and wide to the left and across two lanes before striking the road surface. In those circumstances the probability derived from the objective facts is that the defendant's vehicle was travelling in the kerbside lane rather than in the centre lane travelling eastwards. That accords with the evidence of the defendant and I have no reason not to accept her evidence as to that.

Findings as to the allegation that the defendant was negligent

It is appropriate to state at the outset that the plaintiff and the defendant both impressed me as witnesses who testified to the best of their recollections. However, I find that the plaintiff's recollection of events both immediately preceding and post impact were hazy, fragmented and unreliable. That undoubtedly is attributable to the trauma he sustained in the accident. On the other hand the defendant's account was consistent and unequivocal. She did not prevaricate. She impressed me as a reliable witness who "told it as it was".
The plaintiff claims to have been "positioned and stationary in the centre of Welshpool Road" when he was struck by the defendant's vehicle. Putting aside for one moment the defendant's evidence there are other considerations that suggest that to be improbable. The plaintiff's evidence was that he arrived at the double centre lines when his further passage was obstructed. If a large truck were approaching and was over the width of the double centre lines, as the plaintiff suggested, an oncoming vehicle (such as the defendant's, if it were in the centre lane) would unlikely be approaching so close to the double centre lines such that the front right of the vehicle would strike the plaintiff if he were positioned where he claims to have been.
If it were so that a large over width truck was approaching from the left, the plaintiff must have stepped back at least some distance to allow clear passage for the truck which he turned his body towards. Whether or not he did step back and if so how far he knew not. He speculated that he might have stepped back. Simply stated, he had no idea where on the roadway he was when struck by the defendant's vehicle. It is equally possible that with the approach of the over width truck and other traffic from his left, which had apparently banked up at the railway boom gate, that he turned before he reached the double lines to head back to the safety of the kerb to wait for the traffic to clear before again attempting to cross the road. It would only have taken at most two or three short steps back to the point where, on the defendant's account, the plaintiff was struck.
Furthermore, the position where the plaintiff came to rest after impact would, in my estimation, suggest that having been thrown up onto and across the bonnet of the defendant's vehicle he would have come down in near, as opposed to distant, proximity to the left side of the vehicle. If that were so it is more probable than not, given where he ended up, that the vehicle was travelling in the kerbside lane at the moment of impact. I would regard as much less probable, even improbable, the submission that he was thrown some 6.8 metres from the double centre lines to the kerb.
The defendant had the plaintiff within her view for some distance prior to impact. I accept that she observed the plaintiff step off the kerbside some distance ahead of her. He was sufficiently far ahead of her not to necessitate her having to reduce speed. She observed the plaintiff to proceed across her path and clear the kerbside lane. She maintained a constant speed. She was adamant that the plaintiff did not get as far as the double lines before he turned, although she could not say how far into the centre lane he did get.
I accept that the accident occurred in the way as enunciated by the defendant and in the circumstances I accept her account in its totality.
Having regard to the foregoing I find that:
·The plaintiff's assertion that he was standing on the double white lines in the centre of the road when he was struck by the defendant's vehicle is rejected.
·At all times the defendant's vehicle was travelling wholly within the kerbside lane in an easterly direction.
·The defendant had a clear and uninterrupted view of the plaintiff as he proceeded from the northern kerb across her path of travel into the centre lane and back into the path of her vehicle and accordingly she kept a proper lookout.
·The plaintiff was not "… positioned and stationary in the centre of Welshpool Road" as alleged in par (b) and par (c) of his particulars of negligence.
·The point of impact was in the kerbside lane in close proximity to the broken white line dividing the kerbside lane and the centre lane.
·The plaintiff was proceeding back towards the northern kerb when the impact occurred.
·Before proceeding back towards the northern kerb the plaintiff did not look to see if there were any oncoming vehicles in near proximity so as to ensure that it was safe for him to cross back to the kerb.
·There is no evidence to support par (c) of the particulars of negligence that the defendant "entered into Welshpool Road at speed …".
·The plaintiff was proceeding along Welshpool Road at no more than 60km/h which is the speed limit for the area.
·The defendant did apply her brakes immediately the risk became apparent.
·Her braking was of little if any effect prior to impact.
·The defendant stopped her vehicle within a very short distance from the point of impact and in the kerbside lane.

Failure to take evasive action

It remains necessary that I consider whether in these circumstances the defendant was negligent in failing to appreciate earlier than she did that there was a risk of the plaintiff turning and moving back into the kerbside lane in front of her, and in failing to take appropriate measures in response to that risk. It is argued on behalf of the defendant that she could not reasonably have anticipated that a seemingly able bodied adult man would suddenly turn about and walk into the path of her vehicle without looking. While I accept that the ordinary reasonable person would regard such an event as unlikely, that does not necessarily mean that it is unforeseeable. As was stated from the well‑known passage from Wyong Shire Council v Shirt (1980) 146 CLR 40:
"A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [1951] AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far‑fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable." (Mason J at 47‑48).
Similarly in Fardon v Harcourt‑Rivington [1932] All ER 81, Lord Dunedin held:
"…if the possibility of the danger emerging is reasonably apparent then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions."
In the same case Lord McMillan stated:
"…the user of the road is not bound to guard against every conceivable eventuality but only against such eventualities as a reasonable man ought to foresee as being within the ordinary range of human experience."
In Pritchard v Evans, unreported; FCt SCt of WA; Library No 960146; 21 March 1996 Anderson J at page 6 said:
"It is trite to say that the onus was upon the appellant to establish on the balance of probabilities that there was a want of due care and attention on the part of the respondent. In the particular circumstances of this case, the appellant had to satisfy the trial judge that 'a proper coordination of speed and braking with an adequate lookout would have averted the collision.' Chan v Fong (1973) 5 SASR 1 per Walters J at 4."
It was the plaintiff's contention in closing that when distance and time were analytically assessed the conclusion could be drawn either directly or inferentially that the defendant did not firstly, keep an adequate lookout and did not see him until she was about to hit him and secondly, that she failed to act as a reasonable driver would have done faced with a pedestrian on the roadway some distance from her. It has to be said that the analysis towards either of these alternatives only invites speculation and it would be dangerous for any court to determine the issue of negligence on that basis. The plaintiff's analysis is founded upon a "guesstimate" as to what distance the plaintiff might have travelled after turning and proceeding into the path of the defendant's car, how long it might have taken the plaintiff to turn and travel that distance with the conclusion that whatever the result (given that there are variables in both time and distance) the plaintiff should have anticipated that the plaintiff would do as he did (regardless for his own safety) and thereby avoided an impact.
That proposition even standing alone is hardly worthy of consideration. More so for the reason that the plaintiff believed he was in the centre of the road when struck. The plaintiff's evidence provided no reference measurable against what the defendant said happened against which the defendant's conduct can be judged. Any testing of the defendant's behaviour in that respect was basically hypothetical.
The defendant was not able to say how far she was from the plaintiff when he "turned" or how far he had proceeded into the centre lane before he turned. No conclusion of assistance to the plaintiff can be drawn from that so far as estimating distances and time are concerned. That she cannot be specific as to those matters does not lead to the conclusion that she was not aware of what was happening ahead of her and that she was thereby negligent.
I have no reason not to accept the defendant's evidence that she reacted immediately the risk was presented. Regrettably that was too late to avoid the impact which on her evidence and which is the only reliable evidence upon which any assessment can be made was almost instantaneously.
As to the suggestion that the defendant might have taken evasive action to avoid the plaintiff altogether the options were only twofold. She might have swerved hard to her left into the kerb and up on to the footpath. To have attempted that would have been fraught with danger. Alternatively by swerving hard to the right might still have risked impact with the plaintiff either more centrally or to the left front of the vehicle and worse still risk putting her into the path of the oncoming truck. In any event it is again only speculation that by taking such action impact with the plaintiff might have been avoided.
In the circumstances I find that by the time the defendant became aware that the plaintiff was likely to move back across the path of her vehicle it was then too late for her to take any evasive action. She "went for the brakes". Whether or not the brakes took effect prior to impact she was not able to say. The impact was almost instantaneous. That gives an indication as to the close proximity that she was to the plaintiff at the time when it was apparent to her that he was crossing back into her path.
In conclusion I am satisfied that the possibility of danger emerging was only a mere possibility and then when the danger presented itself as a consequence of the plaintiff changing direction and stepping into the path of the defendant's vehicle it was too late to take any evasive action so as to avoid the plaintiff.
It behoves any pedestrian proposing to cross a major thoroughfare, as Welshpool Road is, to be alert, to keep a sharp lookout and to take care for their own safety.
It is my finding that the accident occurred wholly by reason of the plaintiff's failure to take care for his own safety. He failed to observe the presence of the defendant's vehicle before stepping onto the roadway or whilst on the roadway. When he turned and proceeded back towards the kerbside he did not look to see whether any vehicle was coming up from behind him and he stepped into the path of the defendant's vehicle without being aware of its presence.
In coming to that conclusion I have not relied at all on the admissions made by the plaintiff immediately after the accident. I have no hesitation in accepting that the statements were made by him to or in the presence of the witnesses. I simply observe that the admissions are consistent with the account given by the defendant. It might be said that therein lies the truth of the matter.
The plaintiff's action must be dismissed.

Footnote on damages

Had the plaintiff been successful in his claim on liability then the court would proceed to assess to damages. Albeit that he has failed on liability I will nevertheless proceed to assess damages in case at some future time that will otherwise become necessary.

Past economic loss

By reason of his accident caused injuries the plaintiff claims that he has suffered a past loss of earnings in that he was unable to return to his pre-accident employment as a sales representative.
By mid 2002 (9 months post-accident) the doctors were indicating that the plaintiff was fit to return to work with some qualifications. Dr Hewett in a Workers' Compensation Progress Medical Certificate dated 5 May 2002 noted "patient remains symptomatic but is fit to return to work but will require further medical surveillance at least initially. To avoid pro-long standing, pro-longed walking, possibly pro-longed sitting. Phone work would be appropriate and some client contact." His medical certificate of 17 May 2002 noted "fit to return to pre-injury work." In his report of 1 June 2002 (Exhibit 10B) Dr Hewett noted:
"In early May, Mr Bold and I had a long discussion, and following an examination, it was decided that he should attempt some form of return to work program. He was granted the chance to attempt to return to work with restricted duties. By 17 May 2002 it would appear that he was coping despite his ongoing symptoms and he should attempt to return to work to his previous duties."
On 29 May 2002 Dr Home reported "it is my opinion that Mr Bold has regained a capacity for full-time work in this pre-accident employment as a sales consultant." It was his evidence that the plaintiff would need to be able to get up and walk around at regular intervals as pro-longed sitting could cause some exacerbation. On 18 June 2002 Mr Ratan Edibam reported (Exhibit 13A) "…I see no reason why Mr Bold can not return to his re-accident employment as a sales consultant on a full time basis." He felt that there was some exaggeration of his symptomatology albeit that there was no inconsistency between his symptoms presentation and clinical findings. However in his report 11 March 2003 (Exhibit 13B) he reported "…he is partially incapacitated as he is only working part-time. He feels that he can not undertake full-time work, however over a period of time he would be able to get back to full-time work and I would estimate that to be no more than 3‑4 months." It is unclear as to whether the assessment of "partially incapacitated" was that of the doctor or of the plaintiff on the basis that he was then only working part-time. Nevertheless the estimate of being able to get back to full-time work within 3‑4 months was consistent with the plaintiff's evidence as to his assessment of his future work capacity.
Mr Hardcastle in this report of 26 June 2002 (Exhibit 12) noted that the plaintiff's recovery to that stage had been adequate and he expected further recovery though it was likely to be slow. He assessed the plaintiff as having a capacity for work and considered 25‑30 hours a week in a light duties type of position of a supervisory or clerical nature appropriate. He was not able to determine whether there would be any disability but considered the short-term significant impairment was likely to continue for at least another 6 months. That would take the plaintiff's work capacity up to the end of 2002.

The plaintiff of his on volition attempted work in April/May 2002 however found that he was not able to manage. When he returned to his pre-accident employer in May 2002 he was made redundant. Since 26 November 2002 to trial the plaintiff had been in almost continuous part-time employment he manages by taking regular breaks and use of telephone headset. At trial he frankly volunteered that he felt that he had the capacity to then return to full-time employment.
As I have identified some of the medical evidence suggests that the plaintiff was fit to return to his pre-accident employment full-time about mid 2002. That was said however with the reservations of avoiding prolonged sitting or standing and having the opportunity to get up and walk around at intervals. His attempt at return to work however did not accommodate these needs. Mr Hardcastle indicated part-time work from mid 2002 with his short term significant impairment continuing through until at least the end of 2002. At the other end of the scale Mr Edibam in his pre-trail report of 11 March 2003 indicated a return to full time work 3‑4 months hence, viz June/July 2003.
Having regard to the plaintiff's evidence as to his own assessment of his capacity for full-time work at trial and finding a balance between the medical assessments I have come to the view that as at the date of trial the plaintiff was then fit to return to full-time pre-accident employment. Thus up to trial the plaintiff is entitled to his past loss of earnings less the amount earned since he has been working part-time.
I find that the plaintiff was at the time of the accident earning $47,464 gross per annum or $693.76 net per week. The period from the date of the accident 21 September 2001 until the date of trial 24 March 2003 is 78.5 weeks.
$693.76 per week x 78.5 weeks = $54,509.00
Less moneys earned
Controlled Marketing 26/11/2002–14/2/2003 (11 weeks)
Gross wages         $2,124.50
Per week$   193.13
Less tax                $     14.00
$   179.13 net pw
x 11 weeks           $1,970.50

Marvet Pty Ltd 24/02/03-20/03/03
Gross wages $   626.45
Less tax     $   148.00
Net wages   $   478.45

Past economic loss = $54,509-($1,970.50 + $478.45)
= $54,509.00 - $2,548.95
= $52,060.05

The evidence indicates that the plaintiff would have lost the employment he had with his pre‑accident employer in any event by mid/late May 2002 and it is not certain that he would have immediately obtained commensurate employment. A reduction of 15 per cent for that contingency reduces the sum to $44,251.

Interest

Interest on loss of earnings would be allowed in the sum of $1,250.

Fox v Wood component

A total of $22,551.43 gross by way of weekly payments of compensation were paid by the workers' compensation insurer for the period to 22 April 2002. It would be reasonable to treat that sum as including approximately $4,500 by way of income tax and that sum would be allowed by way of the so‑called Fox v Wood (1981) 148 CLR 438 component.

Past superannuation

Past superannuation at 8 per cent on gross wages of $912 per week from 21/09/01 – 30/6/02 a period of 40.5 weeks.
$912 per week x 40.5 weeks x 0.08 = $2954.80
Past superannuation at 9 per cent on gross wages of $912 per week from 1/7/02–24/3/03 a period of 38 weeks.
$912 per week x 38 weeks x 0.09 = $3,119
Total past superannuation = $6,073.80.
This sum to be reduced by 30 per cent for the Jongen v CSR Ltd & Anor (1992) A Tort Rep 81‑192 deduction.

Future Economic Loss

In an amended schedule of economic loss the plaintiff has put forward the proposition that he has only a retained earning capacity of $220 per week net. That is approximately one third only of his pre-accident net earnings. I do not accept that proposition.
Furthermore it is my finding that since trial the plaintiff has a full earning capacity in his pre-accident employment and there is no evidence that his working life has been shortened at all by reason of his accident caused injuries. Having regard to the medical evidence and the plaintiff's own assessment I do not accept that he will continue to suffer a future loss of earning capacity or that he will be unable to engage in his pre-accident employment as a sale representative or will be restricted in undertaking that type of employment.
Accordingly it would not be appropriate for any allowance to be made under this head.

Future medical expenses

The plaintiff had indicated a claim for future medical expenses at a rate of $10 per week. This amount was not particularised in evidence. The evidence does indicate that the plaintiff is continuing to take Panadeine for relief of headaches etc and continues to be prescribed Panadol. Although not indicated by any evidence I accept that it may be necessary for the plaintiff to attend on his general practitioner from time to time for review and for further scripts. However in the absence of specific evidence a modest allowance only can be indicated. A sum of $1,500 would be appropriate for future medical expenses.

General damages for loss of amenities

Had the plaintiff been successful he would be entitled to general damages for the accident itself and for the consequent pain and suffering, loss of amenities and loss on enjoyment of life.
In that respect I find that the plaintiff suffered the injuries in the accident as have been identified earlier and that he has through his rehabilitation suffered pain, discomfort and restriction of movement. Furthermore the plaintiff has and is likely to continue to suffer a significant loss of enjoyment of life in that he will be restricted insofar as his pre-accident sporting, social and domestic activities are concerned.
The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s 3C of the Motor Vehicle (Third Party Insurance) Amendment Act1994 ("the Act"). This section imposes a limitation upon an award of damages for non-pecuniary loss and it applies to the present case. Section 3C(3) provides that the maximum amount of damages that maybe awarded for non-pecuniary loss is, at the present time, $249,000 and that amount may be awarded only a most extreme case.
Having regard to those matters identified and to the evidence generally I find that the plaintiff's initial injuries and symptoms, their progression and treatment, their current status and the effect that they have had and will have on the plaintiff's enjoyment of life puts the plaintiff's case at 15 per cent of a most extreme case. That percentage of the maximum amount that maybe awarded of $249,000 equates to $37,350. By s 3C(5) of the Act if the amount of non‑pecuniary loss is assessed to be more than $12,500 but not more than $38,000 then from the award made is to be deducted the sum $12,500.
Therefore 15 per cent = $37,350 reduced by $12,500 = $24,850.
Accordingly general damages would have been allowed in the sum of $24,850.