Chadwick v Allen - [2012] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHADWICK v ALLEN
[2012] SADC 105
Judgment of His Honour Judge Tilmouth
28 August 2012
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
The plaintiff was a rear seat passenger in a motor vehicle driven by the defendant which collided with trees, throwing her through a rear door, fracturing her spine.
Held 1: Given the defendant's state of intoxication, the accident was plainly caused by his negligent driving.
Held 2: Whether or not the common law principle 'no duty/no breach' survives the passage of the Civil Liability Act 1936 (SA), the circumstances of this case would not have brought it within that class of case.
Insurance Commissioner v Joyce (1948) 77 CLR 39; Roggenkamp v Bennett (1950) 80 CLR 292; Cook v Cook (1986) 162 CLR 376; Gala v Preston (1991) 172 CLR 243; Miller v Miller (2011) 242 CLR 446; Civil Liability Act 2002 (WA); Barnard v Towill (1998) 72 SASR 27, referred to.
Joslyn v Berryman (2003) 214 CLR 552; Imbree v McNeilly (2008) 236 CLR 510; Avram v Gusakoski (2006) 31 WAR 400, discussed.

TORTS - NEGLIGENCE - STATUTES, REGULATIONS, ETC - APPLICABILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE
The defendant's blood alcohol level taken 1 hour and 50 minutes after the accident revealed a level of 0.202 per cent, making the probable level at the time of the accident 0.229 per cent.
Held 1: The presumption of contributory negligence involving a fixed statutory reduction of 50 per cent erected by s 47 of the Civil Liability Act 1936 (SA), applies.
Held 2: The plaintiff is not proven to have been aware the defendant was intoxicated, but it is proven that she ought to have been so aware.
Held 3: The plaintiff could not reasonably be expected to have avoided the risk entailed in entering the vehicle as a passenger, so that exception contained in s 47(2)(b) of the Civil Liability Act is made out, thus rebutting the presumption of contributory negligence.
Held 4: The phrase 'the injured person could not reasonably be expected to have avoided the risk' in s 47(2)(b) of the Civil Liability Act refers to an impossible situation or predicament in which no reasonable person placed in the position of the injured person could avoid, or has no choice but to accept.
Civil Liability Act 1936 (SA) s 31, s 47, s 47(2)(b), s 48(1) & (2); Motor Accidents Act 1988 (NSW) s 74(2); Wrongs Act 1936 (SA) s 35A(3)(a); Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002 (SA) s 24K(2)(b); Motor Accidents Compensation Act 1999 (NSW) s 138, referred to.
Joslyn v Berryman (2003) 214 CLR 552, applied.
Mackenzie v The Nominal Defendant [2005] NSWCA 180; Russell v Rail Infrastructure Corporation [2007] NSWSC 402, distinguished.
Ferrett v Worsley (1993) 61 SASR 234, discussed.

TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - APPORTIONMENT OF DAMAGES - SEAT BELTS
The plaintiff was not wearing a seat belt at the time of the accident. Section 49 of the Civil Liability Act presumes contributory negligence of 25 per cent for the failure of an injured person to wear a seat belt.
Held 1: The obligation to wear a seat belt contained in Rule 265(2)(c) of the Australian Road Rules creates an offence of strict liability.
Held 2: Properly construed the fixed statutory reduction does not apply where the injured person would have been found not guilty of a charge for the offence of failing to wear a seat belt.
Held 3: The plaintiff could not have made out such a defence as her failure to wear a seat belt was a decision made impetuously and out of annoyance.
Held 4: The plaintiff did not fall within the exception provided for in s 49(7) of the Civil Liability Act because she was a passenger in the passengers compartment of the vehicle.
Civil Liability Act 1936 (SA) s 49, s 49(1)(b)(ii); Road Traffic Act 1961 (SA); Road Traffic (Miscellaneous) Regulations 1999 (SA) Reg 36(5); Australian Road Rules R 265(2)(c); O'Connor v The Queen (1980) 146 CLR 64 at 80; He Kaw Teh v The Queen (1985) 157 CLR 523; Gammon Ltd v Attorney-General (Hong Kong) [1985] AC 1; Lim Chin Aik v R [1063] AC 160; Starri v SA Police (1995) 80 A Crim R 197; Ferrett v Worsley (1993) 61 SASR 234, referred to.
Gray v Kennewell (1991) 161 LSJS 86; Norcock v Bowey [1966] SASR 250; Mayer v Marchant (1973) 5 SASR 567; Gray v Kennewell (1991) 161 LSJS 86, applied.
Allan v Fletcher [2000] SADC 18, distinguished.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - GENERAL PRINCIPLES
The plaintiff was diagnosed with a fractured dislocation at T11/12 resulting in paraplegia, permanently confining her to a wheelchair.
Held 1: Damages for non-economic loss should be assessed on a scale of 52 under s 52(2)(a) of the Civil Liability Act at a dollar value of $211,530.
Held 2: It is appropriate to allow past gratuitous care at 1 hour per day.
Held 3: The appropriate levels of future personal care for the plaintiff are 1 hour per day, 10 hours per week to age 40 for combined domestic assistance, plus $45 per fortnight for car maintenance. An award for care after aged 40 to be subject to further submissions.
Held 4: Although the plaintiff has made out a case for a further hour per day in order to care for her children, that 'need' is not compensable according to the decision of the High Court in CSR Ltd v Eddy.
Held 5: It is appropriate to make an allowance for case management of 4.5 hours per week for 13 weeks, then 4 hours every six months for a maximum of 3 years, subject to further submissions as to the application of s 57 of the Civil Liability Act.
Held 6: It is further appropriate to make an award for future housing based on the cost of providing a project home plus the additional reasonable costs of alteration.
Held 7: Further heads of damages considered and discussed.
Skelton v Collins (1966) 115 CLR 94; Todorovic v Waller (1981) 150 CLR 402; Nominal Defendant v Gardikiotis (1995) 186 CLR 94; Civil Liability Act 1936 (SA) s 52(2)(a); Griffiths v Kerkemeyer (1977) 139 CLR 161; Wrongs Act 1936 (SA) s 58(d); Scarfe v State of Queensland [1998] QSR 233; Waller & Waller v Flinders Medical Centre & Burns (No 2) (2004) 233 LSJS 312; Terry v Leventeris (2011) 109 SASR 358; Nguyen v Hiotis [2002] SASC 244; Kars v Kars (1996) 187 CLR 73; Shell Harbour City Council v Rugby (2006) ATR 81-864; Kriz v King [2007] 1 Qd R 327; Clement v Backo [2007] 2 Qd R 99; Dust Diseases Act 2005 (SA) s 9(3); Parry v Cleaver [1970] AC 1; National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569; Crookdale v Drury [2005] 1 WLR 2129; Wotten v Calderdale Health Care NHS Trust [2005] Lloyds L1 R Med 398; Sowden v Lodge [2005] 1 WLR 2129; Peters v East Midland Strategic Health Authority [2010] QB 48; Freeman v Lockett [2006] LS Law Med 151; Motor Vehicles Act 1959 (SA) s 124AC, s 127A; Workers Rehabilitation and Compensation Act 1986 (SA) s 32; Marsland v Andjelic (1993) 31 NSWLR 162; Weideck v Williams [1999] NSWCA 346; Nicholson v Nicholson (1994) 35 NSWLR 308; Wells v Wells [1999] 1 AC 345; Rosecrance v Rosecrance (1995) 105 NTR 1; Campbell v Nangle (1985) 40 SASR 161; Carlon v Alison [1964] NSWR 946; Arthur Robinson (Grafton) Pty Ltd v Carter (1967) 122 CLR 649; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Parry v Cleaver [1970] AC 1; Peters v East Midlands Strategic Health Authority (2009) LS Law Med 229; Crookdale v Drury (2005) 1 WLR 2129; Wotten v Calderdale Health Care NHS Trust [2005] Lloyds Rep Med; Godbold v Mahmood [2005] Lloyds Rep Med 379; Freeman v Lockett [2006] LS Law Med 151; Chulcough v Holley (1968) 41 ALJR 336, referred to.
Insight Vacations Pty Ltd v Young (2010) 78 NSWLR 641; Van Gervan v Fenton (1992) 175 CLR 327; Reneham v Leeuwin Ocean Adventure Foundation Ltd (2006) 17 NTLR 83; Wann v Fire & All Risk Insurance Co Ltd [1990] 2 QdR 596; CSR Ltd v Eddy (2005) 226 CLR 1; Kite v Malycha (1998) 71 SASR 321; Weinert v Schmidt (2000) 84 SASR 307; Marsland v Andjelic (1993) 31 NSWLR 162; Nicholson v Nicholson (1994) 35 NSWLR 308; Burford v Allan (1993) 60 SASR, applied.
Veivers & Connolly [1995] 2 QdR 326; Marinko v Masri [2000] ATR 81-581; Grimsey v Southern Regional Health Board (1997) 7 TasR 67; Crochett v Roberts (2002) 11 TasR 393; Diamond v Simpson (No 1) (2003) ATR 81-695, distinguished.

WORDS AND PHRASES CONSIDERED/DEFINED
"aware or ought to have been aware", "the injured person could not reasonably be expected to have avoided the risk"

CHADWICK v ALLEN
[2012] SADC 105
Table of Contents
Introduction
The day of the accident
Evidence of drinking alcohol
The subject accident
The evidence of Ms Chadwick
The evidence of Mr Allen
The evidence of Mr Martlew
Immediate post-accident events
Expert evidence – accident
Accident dynamics
Plaintiff as a witness
Civil Liability Act engaged
The plaintiff’s appreciation of the defendant’s state of intoxication
Was the plaintiff aware the defendant was intoxicated?
Ought the plaintiff have been aware that the defendant was intoxicated?
Could the plaintiff not reasonably be expected to have avoided the risk?
Psychiatric evidence
Analysis – avoidance of the risk?
Seatbelts under the Civil Liability Act
The seatbelt issue – fact finding
No duty/no breach
Damages
Introduction
General pain and suffering
Past gratuitous services
Future care
Personal care
Future care
Plaintiff’s Life Expectancy
Case management
Future treatment and medication
Equipment and Consumables
Special Damages
Interest
Housing and accommodation
Holidays or vacation costs
Transport costs
Pre-judgment payments
An afterword – written submissions
Summary and conclusions
Introduction

Whatever might be said about the plaintiff Danielle Chadwick, if nothing else she was certainly an enigmatic person by the time she reached 21 years of age.[1] Her hopes, expectations and aspirations were all shattered after she was tragically thrown from the rear seat of a car in March 2007 causing serious injuries resulting in paraplegia.
[1] Date of birth 4 August 1985 (aged 26 at trial, 27 at judgment)
In these proceedings she sues her former partner and driver of the car Alex Allen for damages. A large component of her claim is for future care. Liability is denied on the basis that she well knew he was heavily intoxicated when she chose to become a passenger and because of her failure to wear a seatbelt. The defendant further alleges the plaintiff is not nearly so incapacitated as she claims to be.
The trial was set down for ‘urgent determination’ on the application of the plaintiff by a Master of this court, pursuant to Rule 6R 119 of the District Court Civil Rules 2006. The trial commenced on 7 November 2011. Originally listed for 25 days, it ultimately occupied 62 sitting days, amassed over 5,000 pages of transcript, approximately 1,000 pages of Exhibits comprising mostly dense expert reports and produced over 550 pages of written submissions, the last filed on 19 June 2012. Unsurprisingly there are a myriad of complex issues left with the court to resolve.
The day of the accident
On Saturday 10 March 2007 the couple and Ms Chadwick’s daughter Hope left Stirling in the Adelaide Hills where they were then living, for a short weekend break on the Yorke Peninsula. They slept overnight in the car in a parking bay just outside Port Pirie, some 200 km north of Adelaide. The following morning they met an old school friend of Allen’s, Mr Kym Martlew. He was then staying with his mother at Napperby, which is not far from Port Pirie.
Ms Chadwick and Hope, Mr Allen (then aged 28 years),[2] Kim Martlew (aged 33 at trial)[3] and Martlew’s two young children aged 3 and 6, left Napperby sometime mid-morning, travelling in Martlew’s 2001 Commodore station wagon, through Port Broughton to Kadina on the Peninsula, where a field day was underway. The plaintiff and defendant left their vehicle at Napperby. The rear seat of Martlew’s vehicle was occupied for the entire afternoon by Hope and Martlew’s two children. Hope was then aged 5.[4] It is unclear who first drove from Napperby.[5] After taking lunch at the Wallaroo Hotel and spending some time playing with the children on a beach, Ms Chadwick drove them to Port Victoria where they booked two rooms in a Motel attached to the Port Victoria Hotel. This was sometime in the late afternoon towards dusk. During the course of this journey Ms Chadwick shared her time and devoted her attention between ‘the boys’ and the children.[6] She maintained repeatedly that ‘the boys were doing their own thing pretty much all of the day’.[7]
[2]    Date of birth 9 March 1979
[3]    T4545.4-.5
[4]    Date of birth 28 January 2002
[5]    T3168.3-.6, T4549.4-.27
[6]    T131.14-.24, T1452.26-1453.14
[7]    T130.9-.13, T131.14-.24, T1361.10-1362.3, T1366.11-.19, T1367.36-1368.6, T1371.32-1372.8, T1452.7-.14
Evidence of drinking alcohol
Both men drank alcohol during the course of the journey, commencing in all probability after arriving at Kadina, if not sooner. They consumed spirit mixers variously described as Bundy, Jack Daniels or Woodstock, contained in pre-mixed cans, some retrieved from an esky placed in the rear cargo area of the car earlier that morning. Mr Allen gave evidence that he had a bottle of rum and possibly half a carton of rum in cans, although he said he was ‘pretty sure’ they were not Woodstock pre-mixed drinks.[8] Both continued to drink steadily thereafter over the course of the journey between Kadina and Port Victoria, as well as in the Wallaroo and Port Victoria Hotels.
[8] T3162.5-3163.3
The probabilities are that Ms Chadwick commenced to drive no later than departing Kadina. This was because of the alcohol the two men had begun consuming:[9]
QAnd why did you drive
ABecause the boys had been drinking … that’s pretty much one of the main reasons. I hadn’t been drinking. I was pregnant, so it was just easier for me to drive
[9] T131.9-.13
She drank little alcohol herself at those times or later on.[10] The evidence was consistently that when she did, she rarely drank much at all. The plaintiff repeated a number of times in her evidence that she knew she was pregnant at this time and knew she had been so for nine to ten weeks.[11]
[10] T131.25-.32
[11] T130.24-.26, T131.9-.28, T146.23-.25, T147.7-15, T547.38-548.17
Once at Port Victoria the plaintiff and the three children occupied themselves in a nearby playground. The defendant was with them for a time, and at one point he fell off a see-saw. Later in the evening the adults retired to the front bar of the Hotel leaving the three children in one of the two Motel rooms. The men went ahead of Ms Chadwick. She had assumed the responsibility for showering and readying the children for bed, then waiting until they had fallen asleep.[12] The evidence is quite imprecise as to what point in time Ms Chadwick joined the two men who were seen by the Hotel Manager Karen Kneebone to be drinking mostly spirits, whiskey or rum.[13]
[12] T132.10-.38
[13] Exhibit P26, Kneebone Statement p 3
Despite her assertion that she drank no alcohol at all, Ms Chadwick was seen in the front bar by Ms Kneebone to have a shot of tequila and a Jack Daniels with coke. [14] The following Sunday morning she was tested for the presence of alcohol, however none was detected in her blood system so those drinks must have burnt-off in the meantime.[15]
[14] Exhibit P26, Kneebone Statement p 3
[15] Exhibit P26, Vozzo report p 2
All three eventually left the bar, Ms Chadwick insisting they should go as ‘last drinks’ had been called at around 11.30 or 11.45 pm.[16] She claims to have assisted a bar attendant to ‘pack-up’,[17] although there is no mention of this in the statement of Ms Kneebone. That is hardly surprising as the police would barely be interested in that kind of minor detail at the time. According to the statement of Ms Kneebone last drinks were called at 12.15 am.
[16] T133.5, Exhibit P26, Kneebone statement p 3
[17] T133.6-.8
There is scant evidence that the men continued to drink thereafter, still less in the vicinity of a veranda adjacent to the Motel rooms. According to Ms Chadwick they were getting so loud that she became worried they would be ‘kicked out’.[18] At some time between 1.30 and 2.00 am a puzzling decision was made to go for a drive, ostensibly looking for cigarettes. The children were left alone in one of the Motel rooms. There is no evidence as to who carried the keys. Nor is there any evidence that Ms Chadwick took her handbag or her mobile phone with her.
[18] T133.8-.15
The subject accident
What happened thereafter is a matter of considerable conjecture. Ms Chadwick drove Martlew’s car - so much is clear. She claims her decision to drive was made because:[19]
I'd been previously driving the vehicle. That's why I was driving the vehicle … it wasn’t anything to do with alcohol … Kym asked me to drive the car.
Martlew gave evidence that she drove ‘because she wasn’t really drinking’.[20]
[19] T1467.37-1468.19
[20] T4561.38
On all accounts they drove around the town and environs for several minutes at least. Her recollection was that they did so for upwards of 10-15 minutes, at one point leaving the township of Port Victoria itself finally ending up ‘in the middle of nowhere’.[21] Mr Martlew agreed they drove ‘out of town’ and that they could have been driving for as much as 10 to 15 minutes.[22] At these times he was in the front passenger seat whilst Mr Allen was in the rear behind her.
[21] T136.3
[22] T4589.10-.24
The situation at this time was somewhat chaotic, in that:[23]
… music was being played really, really loud in the car, so when the boys were trying to tell me where to go they were yelling over the top of the music, which was even harder to understand what they were saying.
and:[24]
When we were driving, like I said, the music was really, really, really loud and when the boys were telling me – they were screaming over the music “Go this way, go this way, go this way” and half the time I couldn’t understand them because, like I said, the music was really loud and they were having to yell over the music, so I didn’t know where in the world I was going. I was just being pointed in the direction, “This way, go this way”.
And still later:[25]
I didn't know where in the world I was going.
This account of those matters is supported by Mr Martlew to the extent that the ‘music was pretty loud’.[26] He said nothing about such matters in a statement he gave to the police on 23 April 2007.[27]
[23] T134.8-.11
[24] T135.7-.17
[25] T1470.4-.5
[26] T4588.29, 4589.12-.13, 4592.16-.21
[27] Exhibit P61
At one point towards the south-western outskirts of Port Victoria some 500 or 600 metres from the Hotel, Ms Chadwick stopped the vehicle and alighted, going behind some bushes at the side of the road in order to urinate. This was at an imprecise point next to Wauraltee Road but nevertheless not far from and probably within 10 m or so either side of its junction with Urania Road.[28] She returned to the vehicle to find the defendant at the driver’s wheel.
[28] Refer Maps Exhibits P18A and P18B
The evidence of Ms Chadwick
What transpired at critical moments thereafter on Ms Chadwick’s account of events was as follows:[29]
[29] T135.18-140.28
QDo you know how long you drove for.
AIt would have been a while. I was driving for quite a bit. 10, 15 minutes, probably about that. I'm not sure; maybe longer. I was driving for quite a bit. It seemed a while.
Q10 or 15 minutes in one direction or -
AOne direction, and then all of a sudden they have gone 'We're going the wrong way' and then 'You've got to turn this way. You've got to go this way' and, like I said, it was just so hard to understand what they were saying, the music was so loud, and then I turned around because they said I was going the wrong way and then when I turned around I drove - I don't know how long I drove for but I was busting like anything to go to the toilet, so I pulled over on the side of the road. I don't know where I pulled over. I pulled over, got out the car to go to the toilet and then when I came back Alex was in the driver's seat.
QWhen you got out of the car to go to the toilet was there a public toilet there.
ANo, we were in the middle of nowhere, there was nothing around us, there wasn't any lights. The only light that I could see was so far in the distance it didn't even look like a light. I wasn't sure what it was. It was just black all around me. If it was close, I would have waited and gone to the public toilet. If I thought I was at, you know, close to Port Victoria I would have waited and gone to the toilet in the hotel room or gone to the public toilet on the beach.
QDid you know where the public toilet was.
AYeah, it was right on the beach where I took the kids to the park.
QYou got out of the car -
AYes.
QTo go to the toilet. Was there anything on the side of the road that you noticed when you got out.
AI remember when I got out of the car, I remember there being like scrub or some kind of bush on the side of the road, something I could kind of hide behind when I went to the toilet and that's all I can really remember. I do remember that there was some kind of scrub, like I said, that I could hide behind to go to the toilet.
QWhen you were outside of the car could you see any houses.
ANothing, it was just black. Literally black. I couldn't see anything around me.
HIS HONOUR
QWere you on a dirt road or bitumen road.
ABitumen road.
XN
QWere there footpaths at the side of the road.
AThere was nothing, like nothing, it was just one long road that I had been on and nothing. Like I said, the only light that I could see was that far into the distance I wasn't sure whether it was a light or not, like what kind of light it was.
QAfter you had been to the toilet you came back to the car.
AYes.
QWhat did you see when you got back to the car.
AAlex was sitting in the driver's seat. I told him to get out. And he wouldn't get out of the driver's seat.
QWhere had he been sitting up until then.
AIn the back seat of the car.
QBehind the passenger or behind the driver.
AI don't know. I think he was actually sitting in the middle because he was leaning over and pointing and they were both yelling 'Go this way, go this way, go this way', so.
QWhat did you say to him specifically, can you remember.
ANo, I can't remember exactly what I said to him. I remember telling him to get out the car, that I had been driving. I remember him saying let him drive, basically it's all right, let him drive. I remember feeling like I didn't have a choice, because it wasn't my car. It was Kim's car and I remember feeling a little bit annoyed like, you know, I didn't want him to drive and after kind of all of that, it's little patches of it that I remember and then I remember kind of thinking to myself 'Where in the hell am I?', and I remember him saying 'Get the fuck in the car', like saying 'Get the fuck in the car' and feeling like I didn't - didn't have an option. I didn't know where the hell I was. I was in the middle of nowhere. I didn't know how far it was to the next place. I didn't know what the boys would have done if I got left there. The kids were at the motel, you know. I didn't know.
QDid you think you could walk back to town.
ANo way, it was bloody ages away from anywhere, whether it was the next town or wherever I was. I didn't know how far I would have had to go to have got anywhere. I was literally in the middle of nowhere. It was black. Like I said, the closest light I could see was that far away I didn't know what it was.
QDid you think you could get Alex to move out of the driver's seat.
ANo way. Can't make Alex do anything. Still I could never be able to get Alex to do anything. There's no way I would have been able to get him from the driver's seat.
QSo what did you do.
AI told him to get out and he didn't listen. And I remember thinking - I remember not knowing what to do. I remember again, like I just previously said, thinking I was in the middle of bloody nowhere, not knowing what way would I turn, what way would I have started walking. I didn't know where I was.
QDid you get back in the car.
AYes. Obviously, yes, I got back in the car because he told me to 'Get in the fucking car'.
QWhat happened when you got in the car.
AWhen I got in the car I didn't even get enough time to literally shut the door. He took off. When I got into the car I went to kind of go shut the car door and he'd taken off (INDICATES). I remember.
QDid the car door shut.
AIt did shut but I don't - I cannot sit there and say whether it would have shut properly. I didn't get enough time to literally shut the door; he had taken off and the door kind of - what's the word? Gravity. He took off so the car door kind of come in shut, like shut when I was in the car. I was behind the driver's side, I remember grabbing the bloody seatbelt and yanking and yanking and trying to pull this bugger and it would not come out, no matter what I did. I remember having previous problems earlier on in the day with it because I was having to put Chain in and out the car, and struggling with it. I was having - it kept getting stuck and I was having to pull it and pull it and slowly deal with it all day. So it was just an absolute headache all day. When I got in the car I just pulled and pulled the seatbelt, 'rafing' it, trying to get it on but it was just like it was stuck. The more I 'reefed', the harder it was. That was in a matter of seconds. Pulled, pulled, pulled, it wouldn't come out. So I've just gone 'Bugger this', gone to move kind of and I remember exactly, with my hands, jumping over to get to the other side of the car behind Kim in the passenger side. I remember jumping over because I remember exactly, with my hands, moving, helping me kind of jump over to get to the other side. I got to probably just near where the middle was of the car, and then all I remember was saying 'Look out'. The car was going sideways by then.
QWho said 'Look out'.
AI did because the car was going sideways. All I could see was that part of the - kind of passenger side of the seat.
QThe right-hand side.
ALeft-hand, the passenger side of the car, behind there, I was kind of just behind that part of the seat. So I could see that way - that the car was going that way so when I tried to put the seatbelt on it wouldn't work. I've gone to jump over. I got to literally that part of the passenger seat (INDICATES).
QWhere you could see between the seats.
AYes. And all I remember was the car going sideways and saying like 'Look out'. I can't remember if it was 'Alex, look out' or 'Look out'. I remember I screamed 'Lookout' and then I can't remember.
QUp until the time that you had that vision between the car seats, did you notice where you were driving or where Alex was driving.
AI was too busy trying to put my bloody seatbelt on. When that just kept getting stuck I moved. Like I said, I was concentrating on getting to the other side of the car.
QDo you remember feeling anything as you were driving, anything happening.
AKind of a little bit jolting around a little bit but not too much. Like I said, I was mainly concentrating on getting to the other side of the car.
QCan you tell us anything about the speed of the car.
AI can't. I really can't remember any of that. The next thing that I remember after all of that is being on the ground waking up.
QBefore you had that vision through between the car, do you remember anything about the sound of the car.
ANo, I can't - I, no, I can't remember any of - yeah, I can't remember, sorry.
QSo after you shouted out 'Look out' what do you next remember after that.
AWaking up on the ground and having Alex and Kim over me screaming at me while I was on the ground, saying - screaming, like, 'Danny, wake up, wake up, wake up' just screaming at me.
QWhat could you feel.
AWhen I woke up, all I wanted to do was get up. I remember I just wanted to get up but I couldn't move my back - the pain that I was in. Screaming wouldn't have, you know, made it any better. It was that bad pain that I just, I didn't know what to do. Alex is saying 'Don't anyone touch her, don't move her'. I remember hearing heaps of voices and people kind of around I guess. I don't know and I - I remember bits of the ambulance, I think the driver, or something, telling me to blow on something and I can't remember anything else until I was in hospital.

The plaintiff was interviewed whilst an in-patient at the Royal Adelaide Hospital (RAH) on 22 March 2007 by Senior Constable Lovell of the South Australian Police Major Crash Investigation Unit.[30] Lovell attended the scene on the night of the accident. She told him at the hospital (amongst other things):[31]
We argued for about five (5) minutes before I ‘gave up’ and jumped into the back seat. I don’t know why I jumped in; I wasn’t comfortable with Alex driving. I got into the car and slammed the door because I wasn’t happy but as I shut the door we took off.
…
I always wear a seatbelt when I’m in the car but I didn’t have an opportunity to put my seatbelt on that time.
The evidentiary use to which this statement may be put is considered later.
[30] T1689.17-29
[31] Exhibit P26, item 10, Statement of Danielle Louise Chadwick, p4
The evidence of Mr Allen
The evidence given by Mr Allen precious little light on what happened at critical times. He claims to have no memory of ‘going out for this drive’.[32] Senior Constable Lovell interrogated him during the mid-morning of Friday 15 June 2007 at the Holden Hill Police Station, an interview arranged in advance at which Allen attended voluntarily. At that stage he was under suspicion of causing injury by dangerous driving arising out of the subject accident.
[32] T3183.19-.21
In the interview with Lovell he admitted both he and Martlew began drinking after attending the field day in Kadina, for the most part rum and cola, and to consuming more at an Hotel in either Moonta or Wallaroo on their way to Port Victoria.[33] He told Lovell the drinking continued in the Port Victoria Hotel, including ‘shooters’ in addition to the rum.[34] He professed to be unable to recall the accident,[35] and he recalled they were ‘only going down to buy some smokes’.[36]
[33] Exhibit P26, Q’s & A’s, Item 57,107-115, 133, 169, 163, Statement of Sheldon Lovell
[34] Lovell statement, above Q’s & A’s Item 165-173, 191-192
[35] Lovell statement at Q’s & A’s 5, 31, 35, 195, 216, 220-228
[36] Lovell statement, Q & A 257
These statements to the police, like those of Ms Chadwick, are available as evidence in the case at large, either for or against either party depending on what weight the court is prepared to attribute to them, bearing in mind portions thereof may be self serving: Spence v Demasi.[37]
[37] (1988) 48 SASR 536 at 540-541
Mr Allen pleaded guilty in relation to a charge of aggravated harm caused by dangerous driving arising from the subject incident, in this court on 8 December 2008.[38] During the plea in mitigation his counsel submitted on his behalf that:[39]
·he was ‘clearly intoxicated’;
·the car travelled ‘a couple of kilometres down Wauraltee Road’ before stopping to allow the plaintiff to urinate;
·at the time he moved from the rear seat into the drivers’ seat;
·there was some discussion about him driving ‘but he resolved to drive’;
·there was no street lighting, ‘it was pitch-black and very poorly sign-posted’.
·he turned left into Wauraltee Road whilst ‘there was a lot of shouting and talking …(which)… caused the vehicle to be out of control’.[40]
[38] Exhibit P54, Judge Muecke
[39] Exhibit P54, P21.6-22.30
[40] This passage supports the conclusion that the situation in the vehicle was ‘somewhat chaotic’ in the period immediately before the accident
In January 2009 Mr Allen was sentenced to a suspended prison term of three years and four months with a non-parole period of two years for that offence.[41] He was disqualified from holding a driver’s licence for five years.[42] Ms Chadwick gave evidence on his behalf during the course of the hearing.
[41] Exhibit P54A sentencing remarks 30/1/09
[42] Exhibit P54A
A blood test taken from Mr Allen at about 3.50 am on the morning of Monday 12 March 2007 – that is to say close to 1 hour and 50 minutes after the accident - returned a reading of not less than 0.202 per cent alcohol per 100 millilitres of blood and 11-nor-9-carboxy-Δ⁹-tetrahydrocannabinol.[43] There is no significance for the purposes of this case of the presence of cannabis in Mr Allen’s blood stream.
[43] Exhibit P26, Harpas Report
Later estimates by the pharmacologist Professor White were that the defendant’s alcohol level was around 0.229% at the time of the accident.[44] He considered levels of that order were known to have ‘both general effects on behaviour and more specific effects on driving’, to the point that such a person would appear obviously intoxicated.[45] His opinion was that signs of intoxication would include slurred speech, impaired balance, increased sociability and raised volume of speech. Other consequences were slowed reaction time, increased risk of driver error and the diminished ability to react appropriately in difficult situations on the road.[46]
[44] T3897.9-.14, Exhibit P26, item 17, statement Jason White, p2
[45] Exhibit P26, Item 17, Statement Jason White, p 2
[46] Exhibit P26, Item 17, Statement Jason White pp 2-3 and T3897.9-3898.35, T3902.22-3904.17, T3906.22-3907.8
These opinions were not seriously challenged, although the capacity of others to detect impairment at such levels was certainly put under the microscope in cross-examination.[47] The blood alcohol level of the other participant in this accident Mr Martlew, was not tested as no blood sample was taken from him.
[47] T3908.11-3919.10
The submission by plaintiff’s counsel that Mr Allen’s account of the events of the day should be rejected as pure speculation, cannot be sustained. Whilst one might remain sceptical about the almost complete lack of recall, his level of intoxication suggests he would have difficulty in that regard, even though no evidence was led as to the precise effects of that degree of intoxication on the memory. It was put to him under cross-examination that he held a motive for not telling the truth because he was liable to reimburse the third-party insurer for any judgment that might be entered against it.[48] This suggestion carries little weight simply because if so minded, he might well have constructed a version of the events more adverse to the plaintiff. This he did not do on liability issues. Matters may stand differently when it comes to his evidence touching damages - that falls for later consideration.
[48] T3639.35-3640.14
The evidence of Mr Martlew
The evidence of Mr Martlew about the critical events was clearly reluctantly given under subpoena issued by the defence. He was a man of few words in the witness box.[49] He plainly continued to harbor a grudge against Mr Allen because of $20,000 damage caused to his vehicle for which it appears he was not compensated.[50] It was not possible to judge whether he favoured the plaintiff or otherwise, but no obvious reason for him to have done so emerged in the evidence. They had met briefly only once before.[51]
[49] T4982.1-.32
[50] T4582.25-.30, T4593.28-.33
[51] T128.24-.31, T4546.21-.24
Mr Martlew’s evidence in critical respects was this:[52]
[52] T4560.14-T4565.2, T4565.34-T4570.6
QWhat is your next memory at the Port Victoria Hotel.
AMessing around in front of the hotel rooms.
QOut the front of the hotel rooms, and was a decision made at a time when you were out the front of the hotel rooms in respect of leaving the Port Victoria Hotel.
AYes. We went for a drive around.
QCan you tell us as best you can as to your memory of why you decided at that point to go for a bit of a drive around.
AI think at that time looking for - went for a drive around the town to have a look at it and then for some reason looking for cigarettes and a phone box.
QAt that point in time when you decided to go for a bit of a drive around town, can you tell us about how you felt in terms of whether you felt the effects of alcohol or not.
AYeah.
QYou did.
AYeah, I was affected by alcohol.
QAffected. What about Alex.
AYeah.
QCould you draw a comparison between the two of you, as to who was the more affected.
AI would say Alex was.
QYou've known Alex for a very long time, is that right.
AYeah.
QYou had at this point. Had you seen him intoxicated before.
AYeah.
QHow does he appear to you when he's intoxicated.
ABit of an idiot at times.
QWhat does he do that makes you describe him as a bit of an idiot.
AStupid stuff.
QWhat do you mean by 'stupid stuff'.
AJust random.
QRandom.
AYeah.
QWhat about his speech, is his speech affected when he's affected by alcohol.
ANot really.
QDoes he get louder or quieter.
AProbably a bit louder.
QWhat about his ability to move around, does that get affected.
AYeah.
QWas that affected this night.
AYeah.
QBefore you left for the drive.
AYep.
QHow was his ability to move impaired.
AJust a bit unco.
QA bit -
AUnco.
QUncoordinated.
AYeah.
QHad you noticed that by this stage.
AYeah.
QAnd Danielle was still with you.
AYeah.
QWhen this decision to go for a drive was made, was anything said about who would drive.
ADanielle because she wasn't really drinking.
QDid you want to drive.
ANo.
QDid Alex say anything about driving.
AAt that time, no.
QNot at that time, no. Danielle got into the driver's seat, where did you get into the car.
AI don't know.
QWere you in the back or the front.
AI think I was in the front.
QAlex was in the back.
AYep.
QWhat about seatbelts.
ANo.
QYou didn't wear one.
ANo-one wore one.
QNo-one wore one.
AI don't think.
QYou told us if you don't put a driver's side belt on it beeps at you, is that beeping continuous or does it stop off after a bit.
AIt stops.
QHow long does it beep for.
AMaybe 30 seconds.
QDo you remember where you drove.
AAround the town a little bit, up the main street.
QWhen you say 'up the main street', do you mean away from the sea or towards the sea.
AAway from the sea.
QAnd do you know when you had driven up the main street away from the sea, do you know where you went next.
ANot really, no, we turned down another road.
QDown another road. And to get on to that road did you do a right turn or a left turn or straight ahead.
ARight.
QA right turn. Tell me this: you'd left the three children at the hotel.
AYep.
QHow long was it your intention to be away for.
AI don't know, maybe few minutes.
QWould you have left the children there for a longer period on their own.
ANo.
QHaving made that right turn did you proceed along that road.
AOnly for a short while to realise it was heading out of town.
QWhen you realised you were heading out of town.
AYep.
QWhat happened then.
ATurned around.
QWho was driving when you turned around.
ADanielle.
QAnd when you say you turned around, you turned around back in the direction you had come from.
AYes.
QWhat happened then.
AShe pulled over to go to the toilet.
QWhat did she do.
AWhat did she do? She got out of the car.
QShe got out of the car and how long was she out of the car for.
AA couple of minutes.
QDid you see any, was it open fields or was it -
AScrubby trees.
QDo you know how long she was out of the car.
AA couple of minutes.
QAnd what happened whilst she was out of the car.
AShe went to the toilet.
QWhat happened inside the car.
AI don't know. Alex hopped out of the car as well I think.
QWhat did he do.
AJumped in the driver's seat.
QWhen Danielle returned to the car where was Alex.
AStanding at the driver's door.
QHe was at the driver's door.
AYes.
QWhat did he do.
AHe said he was driving.
QHe said he was driving.
AYeah.
QWas anything said about that by Danielle.
ANot really
QDid she say anything at all.
ANot that I remember.
QShe said nothing about him driving at all that you can remember.
ANot really, I don't remember, no.
QDid you say anything about Alex's driving.
AI don't know. I think I said 'probably isn't the best idea'.
QNot the best idea.
AMm.
QAnd is that what you thought at the time.
AYep.
QWhy did you think it was not the best idea.
ABecause I wouldn't have been driving.
QYou wouldn't have been driving. What about from what you observed of Alex, had you formed an opinion as to whether he should be driving or not.
AI didn't think he should be driving, no.
QIn terms of Danielle and Alex when Alex said he was going to drive, was there any discussion between them about that that you recall.
ANot really, not that I recall, no.
QTell me this: is it the situation that you can't recall what was said between them, or that you can't recall a conversation.
AI can't really recall a conversation.
QCan't really recall a conversation. Did you hear any swearing between them.
ANo.
QWhat did you see Danielle do.
AShe just hopped in the back seat.
QWhich back seat.
ADriver's side.
QWhen Danielle got into the back seat and shut the door was the car still stationary or moving.
AStill stationary.
QStill stationary. What happened then.
AHe drove back into town.
QAs Alex set off on that journey back towards town, were you wearing a seatbelt.
ANo.
QWas Alex wearing a seatbelt.
ANo.
QWas Danielle wearing a seatbelt.
ANot that I know of, no.
QNot that you know of. What happened as Alex drove back towards town.
AHe drove into town.
QWhat rate of speed did he move off at.
ATook off normally, but then kept gaining speed, went over the ripple strips.
QWhere were the ripple strips.
AOn the intersection.
QAnd that is an intersection do you know with which roads. Obviously the road you are leaving but do you know what road you were coming to.
AComing into the town.
QComing into the town. By ripple strips do you mean yellow raised concrete markers in the middle of the road.
AYes.
QAnd did you say anything when that happened.
AYep.
QWhat did you say.
AI told him to slow down.
QAnd what happened.
AHe did slow down.
QHe did slow down.
AYes.
QWhere did he drive to.
AI think halfway up the main street and then turned between the median strip.
QWas that before you get down to the pub.
AYeah.
QNear the sea.
AYeah.
QWas that the first break in the median strip on Main Street.
AI think so.
QWhat did he do at that break in Main Street.
AAccelerated, smoked the tyres.
QSpun the tyres. He accelerated in what direction.
AHeading back out.
QHeading back out again, and what about as he came up Main Street again, do you remember having done that spinning of the tyres, do you remember what speed he travelled up the Main Street.
AI don't remember, no.
QYou don't remember that. Did you have cause to tell him to slow down again.
AAfter he spun the tyres, yeah.
QAfter he spun the tyres doing the U-turn.
AYeah.
QWhat did you say to him.
ATo slow down because it's pretty expensive tyres.
QSo you told him to slow down again. Do you remember if he responded.
ANot really. Because it was really a minute later when he was in the bushes.
QOnly about a minute later he ended up in the bushes.
AYeah.
QYou go back up the way you've come up Main Street away from the sea.
AYes.
Mr Martlew added in his evidence that the place where they stopped to enable Ms Chadwick to alight was ‘dark’ and that he too could not see any lights at the point in time she stopped the car and got out to relieve herself.[53] Whilst he later volunteered under cross-examination that there were lights ‘to the left and the right’ and town lights ‘straight ahead’, the geography is such that when the plaintiff was outside the vehicle she was on the lee side of the vehicle so far as lights were concerned.[54] Under cross-examination he conceded that when she returned to find Mr Allen at the driver’s wheel they ‘said something to each other’, yet he remained ‘pretty sure’ there was no argument between them.[55] He further maintained he would not have told Mr Allen he could drive the car.[56]
[53] T4589.32-.35
[54] T4591.15-.25
[55] T4601.11-.18
[56] T4603.30-.37
As with the other participants, Mr Martlew provided a statement to the Major Crash Investigation Unit. His was made on 23 April 2007 at the Port Pirie Police Station. In this he is reported as saying with respect to the change-over of driver on Wauraltee Road:[57]
We travelled for about 500 metres stopped. Danielle and Alex were arguing in the car. I don’t know what they were arguing about and Danielle got out of the car. I think she went to go to the toilet. After about two (2) minutes Alex sat in the driver’s seat just before Danielle got back to the drivers door. Danielle asked Alex to get out of the car. Alex said that he wasn’t and he was going to drive. It turned into a bit of an argument and I told Alex that he shouldn’t drive. I asked Alex to let Danielle drive and that he shouldn’t be driving.
Danielle gave up arguing and got into the back seat.
[57] Exhibit P61, pp 4-5
Although this statement was tendered in evidence, the use to which it might legitimately be put was a matter of some tactical posturing. Under examination-in-chief, Ms Powell QC for the defendant managed to bring him to the point of acknowledging he gave the police ‘information to the best of [his] knowledge’.[58] When taxed about the prospect that the plaintiff argued with the defendant as to ‘whether he should drive’ he answered ‘No, I didn’t really know what I said to the police’.[59] Under cross-examination by Mr Krupka for the plaintiff, he was shown the statement and acknowledged his signature at the foot of each page.[60] Then again when confronted with the passage quoted above, he said that it did not refresh his memory.[61]
[58] T4572.14-.16
[59] T4590.18-.20
[60] T4609.29-36
[61] T4606.29-4607.30
It is tolerably clear therefore that Mr Martlew admitted making the statement, so it is at the very least available as going to his credit on the topics to which it relates. It is however unclear whether he unequivocally adopted the truth thereof. If not, such statements as ‘Danielle and Alex were arguing in the car’, are not probative of the underlying facts therein. If he did adopt the statement, they are probative of such facts: Driscoll v The Queen,[62] R v Jacquier.[63] Given that the defence conducted its case on the basis that the statement was available as evidence of the truth of the matters to which it relates,[64] and the plaintiff applied to tender his statement with full evidentiary effect,[65] it is proposed to approach the fact finding process on that mutually held understanding.
[62] (1977) 137 CLR 517 at 536
[63] (1979) 20 SASR 543 at 554-555
[64] T4333.22-.26, T4917.37-4919.12, T4982.32-.38
[65] T4609.26-4610.19, T5141.5-.24, T5156.18-.30
Immediate post-accident events

Returning to the narrative, Martlew promptly drove back into Port Victoria in order to alert the police, leaving Mr Allen to tend Ms Chadwick on the side of the road. It was about 1:55 am on the Monday morning when he spoke to Brevet Sergeant Ingham at the local Police Station.[66] Ingham immediately telephoned for an ambulance. Shortly thereafter Martlew returned to the scene. An ambulance stationed at Maitland arrived soon after.
[66] Exhibit P26 Item 1, Statement of Ingham p 1
There is no doubting the fact that the plaintiff was thrown from the vehicle through the right rear passenger door, almost certainly because it was forced open on impact with a tree or trees. She remembers waking up on the ground in severe pain, unable to move her back. Not unexpectedly she retains little memory of the events.[67] She was taken to the Maitland Hospital and from there air evacuated to the Royal Adelaide Hospital, where she was admitted during the early hours of 12 March 2007.
[67] T140.29-.36
It was suggested to the defendant in cross-examination that he became aggressive to Constable Ingham and the helicopter pilot at the Maitland Hospital, which he either denied or could not remember.[68] Given the grave circumstances and that he was not allowed to fly out with Ms Chadwick to the hospital, this episode cannot be regarded as reflecting more generally on his character.
[68] T3569.14-3572.22
The diagnosis made at the RAH in respect of Ms Chadwick’s injuries was a fractured dislocation of the 11^th and 12^th thoracic joints of the spine through to the right transverse process of the first lumbar spine (T11/12-L1), due to a crush from retropulsion of the fractured dislocation.[69] This has tragically resulted in paraplegia. She is now permanently confined to a wheelchair for the remainder of her life. The injury was treated surgically by open reduction and internal fixation by Drs Macdonald and Tizzard, who inserted metal screws rather than a spinal fusion. They noted ‘sensory loss below T11/T12’ and ‘exposure of the T11/T12 disruption of ligaments’.[70]
[69] Statement of Dr Marshall, Exhibit P7, p 58, T2655.12-.16
[70] Above at p 59
The treating doctor at the Hampstead Centre Dr Ruth Marshall at first assessed her as suffering L2 incomplete paraplegia according to accepted classifications, on the basis that Ms Chadwick had ‘regained some sensation’.[71] Dr Marshall has since revised this assessment to a more serious complete L3 motor and sensory lesion of the spinal cord.[72] This re-diagnosis arose after Dr Marshall later ‘found her to have no perianal sensation and no deep anal sensation’.[73] She elaborated on her reasons for coming to this conclusion in a letter to the plaintiff’s GP, Dr Bachok:[74]
It had been a long time since I assessed Danielle in terms of her level. I do not believe that I had done this since she had been in the acute hospital. Danielle reported to me on questioning that she did not have any sensation across her buttocks or around her anus and could not feel the microenema when it was inserted. She had feeling to her knees but not proper feeling beyond them and also has reduced vaginal sensation. She had no feeling of emptying her bladder except within her abdomen – certainly not urethrally.
…
I therefore classified her spinal cord injury as having an L3 motor sensory complete lesion.
[71] Above at p 59
[72] T1545.37-1546.8, T2744.14-.21
[73] T1598.6-.10
[74] Exhibit P7, Report 3 November 2011, P 3, at p 104
Ms Chadwick was transferred to the Hampstead Rehabilitation Centre on 30 March 2007, from which she prematurely discharged herself on 14 May 2007.[75] She professed her reason for doing this was in order to care for her daughter Hope,[76] ‘I didn’t want her to feel like she was neglected and didn’t have anyone’.[77]
[75] T1559.22-.28
[76] T157.19
[77] T160.21-.22
Expert evidence – accident
Senior Constable Lovell and other police officers took several statements from local residents of the township who heard, and in one case (Ms Kneebone) saw, the subject vehicle in the minutes preceding the accident. These are incorporated in the agreed bundle of documents, Exhibit P26. Lovell later returned to the scene where he plotted various tyre marks on the roadway and into the adjoining scrub attributed to Martlew’s car, which he translated into a plan, Exhibit P27.
Another member of the Major Crash Unit Sergeant Spence, observed a number of tyre marks visible on the roadway he attributed to the Commodore. Spence formed the opinion these ‘scuff’ marks were ‘partly as a result of the vehicle being in a yaw (moving partly sideways while facing in a different direction)’.[78] He added:
From the start of the first tyre mark (T1) to the end of the last tyre mark (T7) the Holden Commodore travelled approximately 75 metres.
[78] Exhibit P26 Statement of Sargeant Spence, 5 December 2008 p 4
He proffered further opinions in relation to what he described as ‘collision dynamics’:[79]
The physical evidence indicates that the Holden Commodore Station Wagon was travelling in an easterly direction along Wauraltee Road and it was attempting to negotiate a sweeping left hand bend. It appears that the Holden Commodore has crossed at least partly onto the west bound traffic lane during this manoeuvre and it is also possible that the rear end of the vehicle has started to ‘step out’, or rotate anti-clockwise at this time. It thereafter appears that the driver has steered in an effort to straighten the vehicle but has applied too much steering and over corrected. As a result the Holden Commodore, while straddling the centre of the carriageway, has started to rotate in a clockwise direction, with the rear tyre tracking outside the front tyres. The vehicle was therefore yawing along the road with the front pointing in one direction and the vehicle itself moving in a different direction.
From the available evidence it further appears that the driver has continued to apply steering in an effort to regain control of the vehicle. After leaving the roadway on the southern side the Holden Commodore has straightened briefly before starting to rotate in an anti-clockwise direction, with the rear again tracking outside the front tyres, albeit on the right side now as opposed to previously when the rear tyres were tracking on the left side of the front tyre.
While rotating in an anti-clockwise direction across the southern scrub land the right side of the Holden Commodore has impacted with a small tree before the rear right side of the vehicle has then impacted heavily with a mature tree. As a result of the second impact the Holden Commodore has straightened slightly and continued back onto the bitumen carriageway.
[79] Above p 6
Sergeant Spence calculated the speed of the vehicle on impact with the trees at 63 kph. This estimate was heavily qualified as he himself acknowledged, firstly because his calculations did not take into consideration ‘any braking of the vehicle while it was “yawing” along the tyre marks’ and secondly because of the impact on speed with two trees.[80]
[80] Above, pp 8-9
The precise impact speed did not in the event prove to be of much relevance according to the extensive expert evidence presented in the case. The mechanical engineer and accident reconstruction expert Mr Hall proffered the opinion that the speed was likely to be greater than that suggested by Sergeant Spence, but he was not prepared to put a figure on it.[81] Mr Hall who was retained for the plaintiff, prepared two reports which became part of Exhibit P31. He visited the scene and conducted an analysis of the likely course of the vehicle in the minutes immediately before impact, based primarily on the statements taken by the police comprised in Exhibit P26, including that given by Mr Martlew.[82]
[81] T1891.1-1893.34
[82] Exhibit P61
Accident dynamics
It is evident from the extensive passages taken from the evidence of the plaintiff, that the subject accident occurred on her account within a relatively short space of time and over a very short distance after she returned to the car and entered the back passenger compartment:[83]
I got in the car I didn’t even get enough time to literally shut the door … he took off … I just pulled … the seatbelt, rafting it ..This was a matter of seconds … I remember jumping over to get to the other side of the car … the car was going sideways by then.
[83] T138.18-139.10
On the other hand her case was conducted throughout on the basis that there was a preceding return loop through the centre of Port Victoria. It is obvious that she considered herself to be in the middle of the countryside, too far from the township to permit her to walk back, ‘the only light that I could see was so far in the distance it didn’t even look like a light’.[84] The objective evidence was that there was street lighting in the distance, both in Victoria Street to the north and in the vicinity of Songvaar Street to the south east, about 200 m away from the accident site in each direction.[85] The combined evidence of the local resident Mrs Schultz and the Asset Manager of ETSA Utilities, renders it highly likely that they were alight during the morning in question.
[84] T136.4-.6
[85] T338.19-.23, T340.7-.11, Exhibit D56, p50 Appendix ‘A’ to Griffiths report
On Mr Martlew’s evidence what occurred after Mr Allen turned for a second time into Wauraltee Road, was this:[86]
[86] T4567.29-4568.18
QThen in what direction does the car go?
AVeering right onto that same road.
QVeering, so you make a right-hand back onto the road you had been on only a short time before.
AYep.
QAnd when you took that right-hand corner do you remember anything happening.
AYes. Accelerated, the car kicked back a gear and slid out to the side and hit the gravel near the trees.
QAt what point do you think Alex lost control of the car.
AWhen he went into it, on the corner.
QHe lost control on that corner.
AYes.
QSo you didn’t think he was in control for all the time that you were travelling down Wauraltee Road, if you assume that was the name of the road that you had been on earlier.
ADo I think he was in control of the car?
QYes.
ANot really, no.
QDo you remember the direction, if the car changed direction at all, was it on the right side of the road, the wrong side.
AIt went through an intersection about the middle, there is a bit of loose gravel there, he accelerated, kicked back, spun the tyres, hit the gravel and he fishtailed it into the trees.
QYou thought that he lost control so that the rear-end of the car was moving.
AYep.
QDo you remember actually colliding with the trees.
AYep.
QWhat part of your vehicle collided with the trees.
AAll the driver's side.
QAnd what happened to you in the accident if anything.
ANothing.
QNothing. Were you thrown about in the car at all.
ANot really.
QDid you see Alex being thrown about in the car at all.
AI wasn't really looking at Alex.
QYou certainly didn't hurt yourself in the accident.
ANo.
QYou weren't thrown forward or sideways or -
ANo.
Q- anything like that. What happened after the right-hand side of the car hit the tree.
AThe car like sort of skimmed off the trees and went back to the road and I looked back and Danielle wasn't in the car.
QWhat happened then.
ASo I told Alex to stop and turn the car around.
QAlex stopped and turned the car round.
AYes.
Plaintiff as a witness
Before embarking upon the process of fact finding, it is necessary to make some observations of the plaintiff as a witness. A sustained attack was made upon her, as evidenced by the fact that she was cross-examined over no less than 11 days, but then again many of her answers were unduly turgid, repetitive or querulous. She was demonstrably an unsatisfactory witness in relation to a number of key issues. In some instances these are so important that they reflect more widely upon her reliability and credibility as a witness of truth in general, going beyond the topics to which they relate.
The most outstanding of these by far was the plaintiff’s oft repeated claims that she was unable to transfer from or into her wheelchair without assistance, that is without more than simply ‘stand-by’ assistance. Her evidence was that by the time she took up residence at South Terrace Strathalbyn in September 2007, the defendant had to ‘lift me and put me in the shower and lift me back out of the shower, as well as the toilet and the car’.[87] The transcript of her evidence is replete with references of a persistent inability to accomplish independent or unassisted transfers of any sort.[88]
[87] T175.17-.25, T181.15-.28, T645.21-646.31,
[88] T161.7-.20, T171.4-.36, T172.25-173.20, T175.7-.26, T180.23-181.1, T208.13-.16, T214.16-.38, T218.12-.19, T222.5-.21, T577.5-579.11, T588.7-589.5, T315.23-.29
In September 2007 she was referred by the Hampstead Rehabilitation Centre to the physiotherapist Ms Sargeant. Ms Sargeant initially visited her twice weekly at the South Terrace home, until 11 December 2007.[89] On 27 September she prepared an ‘Activities of Daily Living Report’ based on an assessment conducted on 22 September.[90] In this she reported seeing the plaintiff pivot transfer independently from her wheelchair to a lounge, her bed, a low chair, into the shower and indeed onto the floor. She also reported that the plaintiff told her she could pivot transfer independently to and from the toilet.[91]
[89] T3924.15-3925.28
[90] Exhibit D58
[91] T3929.31-3932.33, T3937.6-3939.11
Under cross-examination the plaintiff persistently denied these capabilities.[92] To take one example:[93]
[92] T601.1-613.37
[93] T604.7-.23
QI suggest to you that you told Ms Sargeant on this day, as opposed to demonstrating to her, that you were able to pivot transfer on and off your toilet independently.
AAgain, I had assistance with all of my transfers.
QOn the same day again you demonstrated to Ms Sargeant that you could pivot transfer independently into your shower chair.
AThat's literally impossible. I really have nothing to say about that because again I couldn't. The chair was too high. It was physically impossible for me to be able to get in and out of my shower.
QYou told her that you bathed yourself without the need for assistance.
AI always had Alex or Hope helping me with that. That's why my daughter was having showers with me.
QDid you say that.
ANo, that's incorrect.
The plaintiff was referred by her solicitor to the occupational therapist Mr Campanella, an employee of the South Australian Spinal Injuries Service as an outpatient clinical specialist. His role was ‘predominantly in the assessment and intervention of spinal injured patients … with regards to their seating and upper limb function post discharge …’.[94] It was however through his private practice that he came into contact with Ms Chadwick. Mr Campanella prepared a report following an assessment of her capacities at the South Terrace home on 16 January 2008.[95] In this report he made the following observations:[96]
[94] T2218.19-2219.3
[95] Exhibit P7, pp 210
[96] Exhibit P7, p 212-213
Personal Care
Ms Chadwick is independent with all aspects of her personal care utilising appropriate equipment for her level of spinal injury.
Showering
Ms Chadwick showers independently in a static shower chair. The chair has been padded on the back and seat for skin protection. These pads are consumable items that require yearly replacement.
Dressing
Ms Chadwick dresses independently on the bed and is able to manipulate her clothing in the wheelchair as required.
Toileting
Ms Chadwick is independent with toileting using a standard toilet. She is able to adjust her clothing as required to complete this task during the day.
Grooming
Ms Chadwick is independent with all aspects of grooming whilst seat in her wheelchair.
Mobility
…
Ms Chadwick has adequate wheelchair skills to negotiate the common architectural barriers around her home and in the community. She was observed to safely negotiate her ramps and the surrounds of her home during the assessment without any difficulty.
Ms Chadwick has a gopher which she uses for community mobility around her local area. This is used when shopping to transport items and when accompanying her daughter.
Transfers
Ms Chadwick is independent and safe with pivot transfers as listed:
-       Bed to wheelchair
-       Wheelchair to toilet
-       Wheelchair to static shower chair
-       Car transfers
-       Wheelchair to lounge chair
-       High-low transfers
Called by the plaintiff, he described in-chief actually observing the plaintiff transfer without assistance:[97]
QWas she able to, on the transfers that you witnessed or observed her perform, was she able to do those without any assistance.
AThe transfers between the bed and the wheelchair and the lounge and the wheelchair were safe and what I would call independent transfers. The transfer onto the static shower chair in the bathroom, because there was a large step up into the shower of approximately 150 mm, was a tenuous transfer but she was able to do it.
[97] T2229.28-.37
Mr Campanella was told by her that ‘getting on and off the toilet was not a problem’, although he did not observe her doing that himself.[98] Later in 2008 Housing SA with whom the plaintiff had been on a waiting list, made a house available for her in Fresian Drive Strathalbyn, into which she moved on 29 November 2008.[99] It was assessed for suitability in an unoccupied state by Mr Campanella on 1 October 2008, accompanied by the plaintiff. On this occasion he watched her undertake a 180º pivot transfer to a toilet seat and from her car.[100]
[98] T2231.8-.9
[99] Exhibit D65, T216.5-27
[100] T2237.10-.17, T2240.24-.32
Under cross-examination about these observations, the plaintiff was noticeably evasive and demonstrably unconvincing:[101]
[101] T640.22-644.37
QDo you have a memory of doing some demonstrations for Mr Campanella of what you could do and what you couldn't do.
AYes, I remember a few, again at the place I'm currently at and then showing him how I could and couldn't get around the house.
QAnd at the South Terrace house as well.
AThat's correct.
QIn addition to showing him what you could and couldn't do, you also told him what you could and couldn't do.
AThat's correct.
QNow we've already discussed the 15 cm step-up into the shower and you told us that you think that's quite wrong, did you either demonstrate, and tell me if you can remember demonstrating, or did you tell Mr Campanella that you were independent with all aspects of your personal care utilising appropriate equipment for your level of spinal injury.
AI would have told, I never demonstrated any transfers of any sort or any -
QYou didn't demonstrate any.
ANo, not that I can remember.
QDidn't ask you to do that.
ANo, not that I remember.
QDid you tell Mr Campanella you shower independently in a static shower chair at South Terrace.
AI would have probably told, again I don't remember demonstrating anything to Mr Campanella or showing him with Alex how I was able to do anything. It was more discussing.
QDid you tell him you dressed independently on the bed and you were able to manipulate your clothing in the wheelchair as required.
AYes, I was able to take my upper body clothes on and off in the wheelchair and then on the bed able to take clothes, upper body clothes on and off. I still was having assistance with lower clothes.
QIt would be quicker if you tell us if you said these things rather than describing for us again what you do.
AYes.
QDid you tell him you were independent with toileting using a standard toilet.
AI may have, I don't remember. I remember Alex not wanting me to have any more assistance and trying to make it that I was able to do more than what I was able to do. Alex was assisting me with all of my transfers.
QWas Alex home when Mr Campanella was there.
AI can't remember on this circumstance.
QYou say that you're saying things to Mr Campanella now because Alex told you to say them, is that what you're saying.
ANo that's not what I'm saying. I'm just saying I may have made it that I was able to do a little bit more than I was able to. Alex was assisting me with anything and everything back then.
QDid you tell Mr Campanella you were able to adjust your clothing as required to complete toileting tasks during the day.
AI guess so, I was able to do a lot of my stuff with my clothing and things like that. I was still having help getting on and off the toilet. Alex was assisting with pulling my skirts or pants up.
QDid you tell Mr Campanella you were independent with all aspects of grooming while seated in your wheelchair.
AThat's correct. I am able to brush my hair and do all of that stuff myself.
QDid you tell Mr Campanella you were independent and safe with pivot transfers as follows. First -
AYes, that's correct. I was getting assistance with pivot transfers throughout the whole time, so that's absolutely correct.
QBut you were independent and safe.
AI wasn't ever doing anything independent, I always had Alex with me.
QLet me suggest to you that you either demonstrated or conveyed to Mr Campanella that you were independent and safe with pivot transfers, bed to wheelchair, wheelchair to toilet, wheelchair to static shower chair, car transfers, wheelchair to lounge chair, high to low transfers.
AAgain I never demonstrated anything to Mr Campanella.
QDid you say that.
AI don't - I don't recall exactly what I said. Again I may have made it that I was able to do a little bit more. We weren't wanting to get any assistance at the house. Alex wasn't wanting us to have more help at the house, but I never demonstrated anything. Again Alex was helping me with all my transfers.
QIs it the fact that you are trying to say that if Mr Campanella comes along and gives evidence and says that you told him or you demonstrated - you told him you could do -
ATold, that's correct.
Q- all of these things all of these specific transfers we'll go through them one by one in a minute, if he comes along in court and says that, and you've heard Ms Atkins opening saying that you're going to be calling him as a witness.
AYes.
QThat you're saying that you might have not told him the truth because Alex didn't want any more care in January 2008. Is that what you're saying.
AWe didn't want to have stranger coming in and out of our house.
QSo for that reason you didn't tell Campanella the truth, is that what you're saying.
ANo, that's not what I'm saying -
QWhat are you saying.
A- ask for help when I really needed it.
QIf Mr Campanella were to come along and say that you had told him that you could transfer independently without assistance from the wheelchair to your toilet in January 2008 at your South Terrace home, if he were to come along and say that evidence, would you have any explanation for why he might be saying that.
AAgain, as I've just previously said, he won't be testifying to say that he's seen me doing any of these things, that we discussed them. Everything that Mr Campanella would be saying is from the truth from his best knowledge, as well as what I have been doing.
QI'm just not sure what you're saying in your evidence. Are you saying you told fibs to Mr Campanella in January 2008.
AI'm saying that I may have led on that I didn't need as much help as what I did. Again, Alex wasn't wanting me to have any assistance from anyone else other than himself. He didn't want any other carers in the house at that time.
QYou've said that many times. We've heard your reasons for what you say you exactly could or couldn't do but, you see, this is not a bit of exaggeration, this is the difference between whether you can transfer independently and safely or whether you can't transfer independently and safely.
AAgain -
QWhat did you say to Mr Campanella.
AI can't recall exactly what I said word to word with Mr Campanella but I can say that I was having full assistance with the –

Between late February and early November 2009 the plaintiff’s carer was Leah Correll. Ms Correll’s evidence was to the effect that she did not assist Ms Chadwick to effect any transfers at all early on, but that she did in the later stages when the plaintiff had undoubtedly put on a considerable amount of weight during the latter stages of her pregnancy with Isobella.[102] In stark contrast it was the evidence of the plaintiff that Ms Correll always assisted with showers, onto the toilet and in and out of the car.[103]
[102] T3752.13-.32, T3754.20-3756.32, T3757.18-3758.1, T3772.13-.19, T3779.1-.16, T3803.20-.27, T3805.1-.18, T3808.25-3809.5, T3833.10-3834.11, T3841.8-3843.25
[103] T214.19-.38, T663.3-666.31
It was just after Ms Correll became her carer that Ms Chadwick saw the physician Associate Professor Flett, a specialist in rehabilitation medicine and defence witness. During an examination conducted on 2 March 2009 he requested her to move out of her wheelchair, which she did. According to Dr Flett she ‘willingly … got to the floor … without assistance’ and then transferred from the floor back into the wheelchair without difficulty, albeit that he firmly held the wheelchair from behind.[104]
[104] T2334.12-.34
The plaintiff gave a very different and contradictory account of this examination:[105]
[105] T676.16-678.10
QHe asked you to undertake a floor to your wheelchair transfer.
AYes, that's correct. I couldn't do it. I couldn't get back into my chair. I remember.
QHang on just a sec. You got out of your chair.
AWith assistance from Dr Flett, he was there with me, assisting and helping me.
QDid he put his hands under your bottom.
ANo, I was with - again, he was there assisting me. He was standing right next to me and basically I believe I had to actually put some of my weight on him to be able to get out of my wheelchair. Getting back in, I had quite a lot of difficulties.
QYou found it difficult to get out of your wheelchair on to the floor but you did so without assistance, didn't you.
AAgain, I had Dr Flett there were me while I was doing that.
QI suggest that you did so; you got out of your wheelchair onto the floor, albeit with some difficulty, but you did so without assistance.
AAgain, I remember, and I remember actually this very clearly, having problems getting out of my chair. I actually had to put some of my weight and lean on Dr Flett to get out of the wheelchair, and getting back in I had quite a lot of problems, I couldn't do it.
QThen what could you do when you were down on the floor.
AI remember him asking - I remember again there was problems with the bed there, that I couldn't get in and out.
QWe are on the floor.
AI remember - I can't remember much of what he got me to do while I was on the ground. Again, we couldn't examinate properly because we didn't have the right equipment in the office.
QYou could move around on the floor.
AYes, I can move around on the floor.
QAnd you could move on to your sides and on to your stomach.
AYes, I can move on to my sides. On my stomach I can but, again, it was made very - and quite clear - that I couldn't do that for a matter of more than a couple of minutes. It was causing quite a lot of pain.
QTell us how you got back in your wheelchair.
AWith assistance. I remember I had quite a lot of problems trying to get back into my wheelchair.
QWhat sort of assistance.
AI had assistance from Dr Flett having to help, and put weight on Dr Flett to help get me back into my wheelchair. I remember having quite a lot of problems trying to do so.
QYou got back into your wheelchair with Dr Flett holding the wheelchair from behind.
AI believe that my chair was actually placed against a wall to stop it from moving. I had problems with my brakes at the time which I do so, unfortunately, quite a lot. I just remember having quite a lot of difficulties trying to get back up into my chair.
QBut you transferred up from the floor into your chair independently.
AI remember actually having to be placed on my bottom footstool because I couldn't make the distance from my bottom footstool to my wheelchair. My cushion kept ripping up and again there was quite at lot of difficulties.
QLet me put that to you again. You got up from the floor into your wheelchair independently.
ANo, I had assistance. I had help getting back into my wheelchair. Dr Flett was there, he was having to assist me and I was having to literally put my weight on him to get back into my wheelchair.
Ms Stephens was another HenderCare employee assigned to assist the plaintiff from 27 October 2009 to 19 March 2010.[106] Her evidence was that she was never called upon to assist Ms Chadwick to shower, to go to the toilet, or in getting in and out of a car, other than to balance the wheelchair and engage its brakes.[107] All this was once again vehemently denied by Ms Chadwick when put to her under cross-examination.[108]
[106] Exhibit D59
[107] T4040.32-4041.31, T4043.1-.37, T4047.36-4049.6, T4051.15-.16, T4056.10-4059.6, T4060.6-.27, T4070.14-4071.28, T4076.16-.35
[108] T778.35-780.15, T1244.11-1247.6, T1251.12-.33, T1300.32-.37
A third HenderCare worker for Ms Chadwick was Lyn McIver. She was so employed in the period between 6 September 2010 and 11 April 2011.[109] She said that she never rendered assistance to the plaintiff in showering, toileting and in vehicle transfers (except that she held the wheelchair).[110] Although it does not appear as if the topic of transition was raised directly with this witness, the ability to independently transfer without assistance was denied repeatedly by the plaintiff in the transcript references already identified and in which she stated specifically that as of April 2011 she was not so able to transfer without assistance.[111]
[109] Exhibit D60
[110] T4479.23-4489.9, T4489.32-4490.8
[111] T276.3-.15
The last HenderCare witness called by defence counsel was Sarah Bariesheff. She cared for the plaintiff between 8 July 2010 and 23 October 2010.[112] Her evidence was that she never saw the plaintiff being assisted when going to the toilet, showering or in doing transfers, once again apart from steadying the wheelchair.[113] Although not specifically put to Ms Chadwick it is absolutely clear that this evidence was disputed by her as well.
[112] T3696.26-.31
[113] T3699.33-3370.37, T3712.32-3714.35, T3732.6-.12
What’s more, the stark evidence of an adroit ability to transfer to and from motor vehicles, including vans and four-wheel drive vehicles where seats are higher off the ground, clearly appears in the surveillance films taken of the plaintiff between 3 January 2011 and 12 October 2012.[114] This plainly shows apparently pain free unassisted vehicle transfers on no less than 22 occasions.[115]
[114] Exhibit D5
[115] On 3/3/11 at 2:13pm, three transfers on 17/3/11 between 2.08pm and 3.07pm, on 18/3/11 at 5:43pm, two transfers on 6/4/11 between 9.49am and 11.50am, on 10/4/11 between 12.11pm and 12.26pm, 2 transfers on 16/4/11 around 4.40pm, on 18/4/11 at 2.40pm, on 18/4/11 at 3.55pm, on 18/4/11 at 5.16pm, on 3/6/11 at 5.43pm, on 4/6/11 at 3.03pm, on 7/6/11 at 6.18pm, on 23/6/11 at 4.11pm, on 25/7/11 at 1.20pm, on 15/8/11 at about 5.40pm, on 17/8/11 at 5.49pm, 2 transfers on 19/8/11 between 8.49am and 9.20am, 2 transfers on 7/9/11 between 11.16am and 2.14pm, and on 15/10/11 at about 12.33pm
Despite valiant attempts by plaintiff’s counsel to limit the effect of this evidence,[116] the combined weight of all this material is simply overwhelming so far as the plaintiff’s credibility is concerned. She was so adamant so many times that she was unable to transfer without assistance, when practically all the evidence indicates otherwise. It is such an important issue, because the greater her incapacity the larger her award of damages is likely to be, that it not only destroys her evidence on this topic but it undermines her credibility as a witness altogether. It is as inevitable as it is inescapable that she has lied profusely about her ability to transfer in order to enhance her damages claim.
[116] Paragraph 46, Detailed submissions
In reaching this conclusion the evidence of the defendant and his mother Mrs Allen which was to the same effect as that of the carers, can be put to one side. A number of criticisms in relation to both were made by counsel,[117] however in light of the strength of the evidence presently under discussion, reliable and sustainable findings of fact can be made on balance without taking into account the evidence of either. And for the same reasons I reject the evidence of Mr Jones on the topic of the plaintiff’s capacity to transfer.[118]
[117] Submissions in reply paras 10 & 11, pp36-42
[118] T2066.37-2068.5, T2137.10-.28, T2139.4-2140.7, T2140.32-2141.3
There is another significant topic on which the plaintiff was shown to be incapable of telling the truth, namely as to the ability to insert her own enemas. This is necessary in order to stimulate the rectal wall to promote bowel movements.[119] The plaintiff has no voluntary control over such movements since her bowel is paralysed.
[119] T1541.36-1542.10
Here again the plaintiff doggedly and persistently maintained that she was unable to achieve this task by herself. She made matters worse by adding the unpalatable and unbelievable assertion that her daughter Hope undertook this for her. The following passage is wholly representative of her assertion about this topic, referring to a point in time when she moved from the Hampstead Centre to the Northfield home of Sayed:[120]
QWhat stage were you toileting at, at that stage. How did you manage your bowels when you first got into that house.
AI still needed to have enemas which I've never been able to do myself. I tried to learn while I was in hospital but it was quite hard to be able to reach. I had the same chair that I had while I was in hospital with a hole underneath so it was easier for Hope to be able to push me over the toilet or to be able to push me into the shower using the same chair. So transfers weren't necessary because obviously it was harder and I wasn't able to actually transfer from my chair to the toilet. I had to actually transfer from my bed into this actual chair with the hole in it and then because it wasn't like a normal chair to push around, I had to actually have Hope push me from the bedroom to the toilet and then from the toilet to the shower and then back again obviously when I finished. I couldn't do my legs and staff like that. I wasn't able to move any of my legs then; I didn't have any functionability at all so Hope would have to wash my legs and stuff like that for me and help me with all of that.
[120] T161.36-162.19
She repeated this stance many times and maintained that she was unable to insert enemas herself even to the present time.[121] When cross-examined about what role her carers played in this she maintained she always had carers to assist her.[122] She furnished the reason why she could not do so in re-examination:[123]
QIs there another reason why you find it difficult to administer your enemas.
AYes, I've never felt comfortable, for one, doing it myself. It's really, really hard to do and, for two, I can't feel it. I don't know if it's in the right spot.
[121] See for example T164.10-.21, T168.3-.9, T237.33-238.10, T279.13-.17, T770.15-.29, T774.27-.35, T1258.1-.6, T1271.11-.12
[122] T1250.32-1252.1, T1300.32-.37
[123] T1506.36-1507.2
Dr Marshall said in her experience a mishap on account of this type of problem was most unlikely:[124]
I've never heard of it happening, but it would be theoretically possible. Most patients just feel around and make sure they are in the right spot, but that is why it is important also to lubricate it so that it actually slips in nicely rather than having to push it.
And again later:[125]
QAnd, of course, that's dependent upon you accepting that she's telling you the truth when she says she can't insert her own enemas.
AI accept the truth that she says that she cannot insert her own enemas, what I cannot explain to the court is why she cannot insert her own enemas. There is of course another possibility and that is that she fundamentally does not like inserting enemas and prefers to have it done by somebody else. Now, that sounds a bit odd but in fact, there are a significant number of patients, there is a significant number of patients, who for various reasons would prefer a carer to insert an enema or enemas than doing it themselves.
[124] T1594.29-.33
[125] T3003.2-.14
Dr Marshall accepted that there was no physical reason why Ms Chadwick was incapable of inserting her own enemas.[126] Moreover she confirmed that Ms Chadwick ‘certainly could manage her bowel care when she left hospital originally’ and accordingly that it was ‘very hard to say why she couldn’t insert the enemas’.[127] If that were not enough, all four of the HenderCare workers gave evidence with one voice that they never assisted with inserting enemas, or of seeing anyone else do so.[128]
[126] T3000.23-.37
[127] T3001.37-3002.23
[128] T3752.20-.32, 3778.5-.19, T3793.35-3794.4 (Leah Correll), T4041.24-.34 (Trish Stephens), T4479.35-4481.8 (Lyn McIver), T3703.37-3704.5 (Sarah Bariesheff)
Quite frankly, the plaintiff’s evidence on this topic can only be regarded as pure fabrication, for reasons best known to herself. Once again it infects her reliability as a witness of truth comprehensively. That does not mean to say she is necessarily to be completely rejected on all topics, for as will be seen that is not always the case. It does however mean that her evidence has to be considered carefully on the particular topic or issue under discussion, and more particularly whether it is supported by other evidence or by inferences that arise from objective or proven facts.
Civil Liability Act engaged
Given Mr Allen’s undoubted state of intoxication and the effect that must have had on his driving ability causing him to veer over to the incorrect side of the road, in addition to the evidence emanating from the various crash investigators and expert witnesses, there is no doubt whatsoever (quite apart from the evidence of Mr Martlew previously quoted) that the defendant’s manner of driving was in breach of the ‘standard of care … of a reasonable person in the defendant’s position …’.[129] The defendant did not contend otherwise. Putting to one side for the moment the question whether a duty of care was owed at all, the plaintiff has therefore succeeded in establishing a primary case in negligence. Since the force of impact with the trees towards the right rear door catapulted Ms Chadwick out of the car throwing her to the ground where she sustained the acute spinal cord injuries, she has also established the necessary ingredients of causation and damage so as to complete her cause of action in the tort of negligence.
[129] Section 31 Civil Liability Act 1936 (SA), commencing on 1 May 2004, South Australian Government Gazette 29 April 2004, pp 1172
The parties were at one in accepting the Civil Liability Act 1936 (SA)[130] applies to this action. The sections of that Act appearing hereafter were introduced into Parliament following a Review of the Law of Negligence, September 2002 (the IPP Committee Report).[131] Part 6 of the Civil Liability Act deals with the requisite standard of care and negligence. Section 47 thereof provides:
[130] Hereafter the Civil Liability Act
[131] Refer Hansard House of Assembly 16 February 2004 p 1186 and Fleming’s The Law of Torts 10th Ed Lawbook Co, 2011 para 12.160
47- Presumption of contributory negligence where injured person relies on care and skill of person known to be intoxicated
(1) If—
(a)     the injured person—
(i)    was of or above the age of 16 years at the time of the accident; and
(ii)relied on the care and skill of a person who was intoxicated at the time of the accident; and
(iii)was aware, or ought to have been aware, that the other person was intoxicated; and
(b)     the accident was caused through the negligence of the other person; and
(c)     the defendant alleges contributory negligence on the part of the injured person,
contributory negligence will, subject to this section, be presumed.
(2) Subject to the following exception, the presumption is irrefutable.
Exception—
The injured person may rebut the presumption by establishing, on the balance of probabilities, that—
(a)     the intoxication did not contribute to the accident; or
(b)     the injured person could not reasonably be expected to have avoided the risk.
(3)In a case in which contributory negligence is to be presumed under this section, the court must apply a fixed statutory reduction of 25 per cent in the assessment of damages.
(4)A passenger in a motor vehicle is taken, for the purposes of this section, to rely on the care and skill of the driver.
(5) If, in the case of a motor accident, the evidence establishes—
(a)     that the concentration of alcohol in the driver's blood was .15 grams or more in 100 millilitres of blood; or
(b)     that the driver was so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle,
the fixed statutory reduction prescribed by subsection (3) is increased to 50 per cent.
(6)This section operates to the exclusion of the defence of volenti non fit injuria insofar as it relates to the voluntary assumption of a risk arising from the intoxication of another.
Section 47 thus erects knowledge or imputed knowledge of the driver’s state of intoxication, as matters amounting to contributory negligence.
Since the defendant’s alcohol content was above .15 g in 100 millilitres of blood, he is deemed to be ‘so much under the influence of intoxicating liquor … as to be incapable of exercising effective control’. As a consequence, the fixed statutory reduction of 50 per cent in the assessment of damages applies (s 47(5) Civil Liability Act). The defendant further relies on the evidentiary aids to proof erected by s 48(1) & (2) of the Civil Liability Act. These provide:

48—Evidentiary provision relating to intoxication
(1) A finding by a court that there was present in the blood of a person, at or about the time of an accident, a concentration of alcohol of .08 or more grams in 100 millilitres of blood is to be accepted, for the purposes of this Part, as conclusive evidence of the facts so found and that the person was intoxicated at the time of the accident.
(2) A finding by a court that a person was at or about the time of an accident so much under the influence of alcohol or a drug as to be unable to exercise effective control of a motor vehicle is to be accepted, for the purposes of this Part, as conclusive evidence that the person was, at the time of the accident, so much under the influence of alcohol or a drug as to be unable to exercise effective control of the motor vehicle.

The plaintiff’s appreciation of the defendant’s state of intoxication

When it comes to Ms Chadwick’s appreciation of the defendant’s level of intoxication, there can be no doubt she was all but constantly in his company for probably 10-12 hours beforehand, during which he consumed a good deal of alcohol. Over such an extensive period of time she must have seen him drinking multiple times during the afternoon and evening, in the Hotels as well as in the car and on the beaches. It is highly unlikely Allen and Martlew drank only when she was not in their company, even accepting that she must have been distracted by the children and occupied herself with entertaining them for significant periods, in between times. That however was not the situation after the children had gone to bed.

I anticipate her indecision may be due in part to the fact that these proceedings are outstanding and her options are somewhat limited until she knows the outcome. Otherwise no explanation emerged explaining her perplexing inaction on this account. It is impossible to accept as a matter of plain common sense that she would not have accepted the opportunity of improving her situation had Housing SA offered her better accommodation options. The birth of Isabella changed the dynamics and therefore increased her need of improved housing, and yet she has failed to explore such options, especially with Housing SA.
Counsel were unable to point to any authority in which a plaintiff suffering paraplegia was awarded the unqualified total capital costs of erecting a purpose built home. The plaintiff in Grimsey v Southern Regional Health Board was an infant child who suffered negligence causing cerebral palsy at birth. She had quite specific and quite different provable needs than the plaintiff has in this case. The qualification imposed by the Trial Judge was this:[527]
In the present case the evidence supports the view that existing homes, suitable for modification to accommodate the plaintiff’s needs if living in a domestic environment, are few and far between, and the cost of alterations and additions necessary to cater for her inexpressibly grave disabilities will be high. It seems to me that a fairer and more appropriate method of approaching compensation is to allow the cost of a purpose design new home and then to consider the likely expenditure which the plaintiff would have incurred, had she grown to be a normal adult earning an average income, in providing accommodation for herself and also, possibly, her family and then deducting that cost, discounted for present value from the sum allowed for lost earning capacity.
[527] At 98
The plaintiff in Crockett v Roberts sustained brain damage that went undiagnosed and untreated in public hospitals. She was proved to be in need of a full-time carer requiring ‘a sleep over shift 365 days’ living in an adjoining flat,[528] hence her needs were demonstrably different as well. Both decisions are distinguishable on their facts, essentially because there was no other reasonable or practical alternative housing option other than those proposed by the respective plaintiffs. A similar qualification or reduction to that made in Grimsey v Southern Regional Health Board was made in this case as well.[529] The local precedents so far as they go have confined awards to the additional costs of modification: Nguyen v Hiotis[530] and Elliott v Andrew.[531]
[528] At 172
[529] At 422, [194]
[530] [2002] SASC 244
[531] [2009] SADC 31
Nevertheless, the defendant contends that since there has been no evidence led to prove the need for building a purpose built home and because no particular location was in mind and no particular reason for one was given, the Donato proposal was simply arbitrary,[532] theoretical and in any case would impermissibly provide a ‘windfall capital gain to the plaintiff or her family whilst relieving her of the obligation to pay for accommodation at all’.[533]
[532] T1967.23-1968.18
[533] Defendant’s submission, part 2, tab 6.10 para 22
The latter proposition is to be rejected largely for the reasons given by Kirby P and Meagher JA in Marsland v Andjelic,[534] especially since Ms Chadwick is so young. The two considerations raised by their Honours apply only more acutely to the exigencies of this case. It was, I observe, a stance rejected for much the same reasons by Wright J in Grimsey v Southern Regional Health Board[535] and by Underwood J in Crockett v Roberts.[536]
[534] Above at 176
[535] Above at 96-98
[536] Above at [194-199]
Based on the authorities the court is bound to apply the proposition that an appropriate award is one which is reasonable, rather than one which is ideal. The applicable principles can be gathered from the decision of the Full Court in Burford v Allan:[537]
At the trial, the respondent's claim fluctuated substantially. She led evidence from an architect, Mr Earle Scott, as to the cost of a house, excluding land, which would be suitable for the respondent, her family and the nurses at approximately $2.1 million. His Honour found, however, and was clearly right in doing so, that the design offered by Mr Scott was for the respondent's "ideal rather than reasonable requirements".
It appears that the final submission of the respondent's counsel was that it was appropriate for an award in the region of $300,000.
An issue arose as to whether or not it was correct to approach this aspect of the matter upon the footing that what should be allowed for is the cost of erecting a special extension at the rear of the respondent's step-father's house. In my opinion, his Honour was correct on the evidence in declining to approach the matter in that way. Instead, he allowed what he considered to be the reasonable cost of "adapting the sort of house that the plaintiff would live in if she was not disabled, to meet her special requirements".
[537] (1993) 60 SASR 428 at p441-442 per Perry J (King CJ and Duggan J agreeing)
A subsidiary issue has emerged in relation to aspects of damages concerning the evidence given in this case about the potential availability of other housing though Housing SA or other sources. The courts have long resisted the temptation to reduce a plaintiff’s entitlement in principle on account of entitlements being available from the public sector: Parry v Cleaver,[538] Peters v East Midlands Strategic Health Authority.[539] Of particular note in the context of this case are Crookdale v Drury,[540] where damages for future care were not reduced on account of the availability of care available through a local authority because of its inadequacy, and Wotten v Calderdale Health Care NHS Trust,[541] on account of the uncertainty of the local authority’s capacity to provide care into the future, as also appears to have been the case in Godbold v Mahmood.[542]
[538] [1970] AC 1 at 14
[539] (2009) LS Law Med 229 at paras [53] and [56]
[540] (2005) WLR 2129
[541] [2005] Lloyds Rep Med
[542] [2005] Lloyds Rep Med 379
Accordingly, although the failure to pursue options that at face value appear to be realistically available through Housing SA, that consideration should not operate so as sound in a reduction of the level of damages otherwise appropriate, even though it forms one part of the matrix of facts relevant to the question of the need of a purpose built home in the first place. Nor should it be seen as a failure to mitigate loss, for the defendant has failed to prove that the plaintiff’s failure on this account was unreasonable: Watts v Rake[543] and it has further failed to demonstrate that Ms Chadwick actually knew this Housing SA option was available to her:[544] See Eley v Bedford.[545]
[543] (1960) 108CLR158 at 159
[544] T1420.35-.38
[545] [1972] 1QB 155 at 185
The availability of alternative public housing to this particular plaintiff is shown to be an uncertain option, at least according to the opinion of various witnesses in the case.[546] As Tomlinson J observed in Freeman v Lockett,[547] a plaintiff should not be relegated ‘to a state of uncertainty … whether there will be available funds assessed as necessary to meet her needs’, and that it is necessary to provide ‘an element of unfettered flexibility as to where she lives’.[548] To express matters in another way, the plaintiff should not be required to rely on the whims of policy in that respect: Godbold v Mahood.[549]
[546] T1636.2-1637.8 (Dr Marshall), T4779.7-4780.37 & T4770.21-4773.27 (Mr George), T4821.36-4822.36 (Mr Young) and refer the unmet needs list D68
[547] [2006] LS Law Med 151 at [32]
[548] Above at [34]
[549] [2005] Lloyds Rep Med 379 at [26]
Returning to the evidence, the combined considerations discussed above, lead to the conclusion that a purpose built home is unnecessary and unreasonable. Firstly a basic and yet quite sufficient house can be modified far more cheaply than the plaintiff’s more ideal proposal. The plaintiff’s position, based on the evidence of Mr Donato, was costed at $775,000, reduced by an unsubstantiated nominal $200.00 per week to allow for rent the plaintiff would have been liable for in any case,[550] whereas the defendant’s position is based on a proposal by Mr Penglase to purchase a ‘kit’ home and make modifications to it.
[550] Plaintiff’s written submission p142 para 60.9
The concession of a reduction of $200 per week no doubt reflects the reductions in the cost of housing that would have been involved irrespective of the accident stemming from the two Tasmania cases discussed above. However, as defence counsel points out in a further written submission following questions posed by the Court to the parties, ‘no evidence was tabled as to the rental value of any notional house, let alone a specific home’. That comment equally applies to the rent the plaintiff pays at Fresian Drive and what was paid at South Terrace for that matter.[551]
[551] P11 para 26.7
Mr Donato accepted the initial modification costs estimated by Mr Penglase at $89,000 (including GST) was reasonable.[552] It was further accepted by Ms Allach that the Penglase plan ‘should meet [the plaintiff’s] basic requirements in terms of access, and the bathroom and toilet, kitchen, laundry etc’.[553] Another minor adverse consideration to the plaintiff’s position is that her proposals were taken from Australian Standards relating to commercial premises.[554] Moreover the original proposal for a purpose built residence was very much dependant upon the discredited assumption that the plaintiff’s disabilities extended to an incapacity to transfer. As of 15 February 2011, when Ms Allach prepared her report, that situation no longer pertained, yet she founded upon the now discredited premise that the plaintiff was ‘not transferring independently’.[555]
[552] T2004.18-.37
[553] T2904.5-.9
[554] Exhibit P7 pp 127-129 and pp 200-205, T2965.2-.25
[555] Paras 5.41 and 5.43
The proposal the plaintiff seeks for a separate room for care workers and a covered swimming pool, were not supported by the evidence.[556] Furthermore there are a number of minor variations identified by Mr Donato enhancing the costs which were additional to Ms Allach’s recommendations.[557]
[556] Exhibit P7 P128-129, paras 4.32-4.36
[557] These are detailed in the Defendant’s written submissions, Part 2, tab 6.10, para 9-97
Mr Donato further acknowledged that the Penglase option was standard compliant, and that it was appropriate to provide for a dual exercise/storeroom.[558] The major difference between the two proposals was the provision of an extra room.[559] Furthermore, Mr Donato accepted the cost of a project home without modifications was about $175,000, excluding the cost of purchasing land and associated conveyancing charges.[560]
[558] T2023.28-2024.7
[559] T2004.18-2005.3, T2010.12-.21, T2012.1-.11
[560] T2026.36-2027.19
Mr Penglase selected a Jennings Pinnacle home as the base for alterations to meet the plaintiff’s needs because of the ease of modification involved, which be amended later to incorporate suggestions by Dr Marshall, which raised the modification costs to $115,582.[561] These were equally assessed by Mr Penglase to meet the plaintiff’s basic needs for disability access.[562] As it happens, this proposal was similar to one Mr Donato had himself achieved in the past.[563] On the basis of all this evidence the modified Penglase design is proven to be reasonable and appropriate for the specific needs of the plaintiff.
[561] Exhibit D56, item 8 page 87, T3962.23 & T3011-3020 (Dr Marshall)
[562] T3966.22-3969.2
[563] T2010.22-.25
It must follow from the entirety of the evidence that the need for a purpose built house of the level proposal by the plaintiff is not made good. Moreover, on the basis of the above findings, the modified Penglase proposal fits squarely within the description of the sort of suitable adapted home the plaintiff would live in if she were not disabled. The plaintiff’s contention that the Donato proposal minus the swimming pool of about $575,000 is therefore rejected, as is the back-up proposal for a smaller purpose built house costed at $350,000.[564]
[564] Plaintiff’s further submissions in reply para 22.15
There was a debate between counsel in relation to the onus of proof on this specific issue. Whether the plaintiff was required to prove the reasonable needs called for a purpose built home, as I think to be the correct position, or the defendant was required to prove alternative options were available and better suited, becomes academic. The conclusion is that the plaintiff has failed to demonstrate on balance that a purpose built home is reasonable and necessary for her needs and correspondingly, the defendant has demonstrated on balance that it is not.
It is not appropriate to discount any award on this aspect of the damages claim for the reasons mentioned already, even though there is no direct evidence that the plaintiff actually intends to purchase and modify such a project home. Irrespective of other contingencies such as remaining at Fresian Drive, or moving into alternative rental accommodation, the probabilities are that she would take this option because of the significant deficiencies in the Fresian Drive premises and the additional strain thereon occasioned by the birth of Isabella. Still further, a plaintiff is entitled to spend her damages award as he or she chooses: Van Gervan v Fenton.[565]
[565] Above at 335
How these conclusions translate the money terms is not an altogether straight forward exercise. For the time being it may be indicated that an award is appropriate to cover the costs of the purchase of an AV Jennings Pinnacle 190, 3 bedroom home at $175,000 and for the necessary varied modifications recommended by Dr Marshall at $115,582. Whether the plaintiff seeks an award for the projected cost of purchasing an appropriate block of land and associated transfer costs is unclear. The parties should have liberty to speak to the appropriate orders in light of those findings.
Holidays or vacation costs
According to the submissions of the plaintiff’s counsel, it flows from the Griffiths v Kerkemeyer principle that if the plaintiff needs to support her children in their recreational requirements and activities, then those needs are compensable. The associated inconvenience and loss of amenity is certainly relevant to the level of damages for non-economic loss. Her inability to fully and actively participate in the children’s recreational and extra-curricular school activities, as well as her reduced capacity to go camping or take holidays has been factored into that assessment already, and a (small) allowance has already been made for holiday assistance under the separate head of future care.
However the submission is that the court can and should make a separate award of damages for taking vacations in the future. Her counsel points out that when considering this question special problems arise in holiday situations, particularly organising transport, handling luggage, dealing with unfamiliar and possibly incompatible environs for wheelchair patients and in supervising children at fun parks and the like.
The evidence was that before this accident the plaintiff certainly did spend a good deal of her leisure time camping with the defendant. They went on an extensive driving holiday around Australia. That appears to have been a lifestyle choice they made for the time being. There was of course the particular three day excursion which led to this tragic accident in March 2033. There was another overnight trip to the Victorian alps on a very inexpensive basis,[566] the motoring trip to Port Lincoln in late January 2010 and a visit to relatives in Whyalla, quite apart from the interstate journeys around Australia and to Kununurra.
[566] T639.12-.23
The plaintiff said during the course of her evidence-in-chief that she loved travelling, ‘its probably one of the main things that makes me feel normal’.[567] It remains her intention to take holidays with the children, especially to theme parks on the Gold Coast, at least according to her current carer and partner Mr Jones.[568] The focus then is not the cost of the holidays themselves for they would have been incurred anyway, but the cost of the additional care that is entailed, if any. In essence the plaintiff identifies the costs of bringing carers and accommodating them during vacation periods, plus the extra expense that entails, such as providing meals, accommodation and travelling expenses for such carers. Eventually her claim was for a modest award of up to $30,000 for these projected expenses, without elaboration as to how that figure was derived.[569]
[567] T353.16-.31
[568] T2122.22-.31
[569] Plaintiff’s submissions in reply para 23.4
The defendant contemplates the plaintiff may well continue with recreational pursuits in the manner of the past, but argues that these would be modest at best, given the limited finances that would have been available to her, that they were likely to be of short duration and taken at local rather than interstate destinations. It is further submitted that to allow additional care over and above standard weekly care would effectively amount to double counting.
Here once again, the touchstone of the inquiry is the entitlement to ‘such reasonable expenses as will be reasonably incurred: Chulcough v Holley.[570] It might be observed at this juncture that an award of this kind was made in Nguyen v Hiotis.[571] Similarly in Diamond v Simpson (No. 1)[572] a severely disabled cerebral palsy plaintiff was awarded $330,000 at trial for the additional vacation costs of two carers over 50 years, reduced on appeal to $200,000, on the broad-axe basis that it was unlikely to involve overseas trips every four years and that it was more reasonable to assume the plaintiff would ordinarily holiday within Australia.[573] Such an award was disallowed in Elliott v Andrew[574] as ‘unreasonable’ on the evidence.[575]
[570] (1968) 41 ALJR 336 at 338
[571] Above at [63] $18,500
[572] (2003) ATR81-695; [2003] NSWCA67
[573] At [188]-[192]
[574] (2009) 262 LSJS 127; [2009] SADC 31
[575] Above at [267]
It must be borne in mind that assistance is provided these days by airlines for wheelchair bound travellers and that as things presently stand, the plaintiff has been awarded some carer assistance for the future. Quite apart from that more and more destinations now provide accommodation modified for wheelchair access.[576] Such accommodation was in the opinion of Ms Allach suitable enough on the understanding that the plaintiff could transfer independently, which is proven to be the position.[577]
[576] T2887.36-2888.17
[577] T2888.21-.30
Since any basis for this aspect of the claim depended substantially upon proof of transition incapacity or to attend to everyday toileting has been discredited, the claim reduces to one of what further assistance, if any, might be involved in taking holidays for a maximum and ideal duration of four weeks per year.
It can be appreciated there would be additional stresses and difficulties travelling with two children for a wheelchair bound parent, even if accompanied by a partner or carer such as Mr Jones. One can foresee this could easily involve the hire of a larger vehicle for transport to and from airports at the very least. Otherwise, the cases show that an additional allowance is made usually only when carer assistance is demonstrably required, which it is not this case. Taking all these considerations into account and without pretending to be precise or even particularly scientific about it, a modest sum of say $300.00 per annum over 50 years is allowed. Given the modesty of the proposed award over a reduced life span of 54 years, it is not proposed to reduce the consequent lump sum of $18,000.00 on account of present day value simply because it is a modest sum and because the bulk of this is more likely to be expended whilst the children remain relatively young.
Transport costs

The plaintiff acquired a modified Calais for transportation fitted with hand controls, which she used to keep medical appointments and attend hydrotherapy services at Noarlunga. The evidence was that she could drive herself effectively enough, even though she got into trouble from time to time with speeding offences and consequent losses of licence, which are not causally related to the subject accident. As recounted several times already, the plaintiff could not only transfer in and out of a modified vehicle independently, but she was able to dismantle and stow her wheelchair unassisted in the front seat.[578]
[578] T3210.16-T3211.6, T3297.4-.28 (Mr Allen), T3753.12-.16 and T3756.20-.23 (Ms Correll), T3713.22-.30 (Ms Bariesheff), T4043.20.-29 (Ms Stephens) and T4482.22.-.31 (Ms McIver)
Recommendations for a larger vehicle later in life are predicated upon the proposition that the shoulder and wrist problems are likely to compromise the ability to transfer, which has a secure foundation, given the findings made in relation to those matters earlier in these reasons.[579] The Calais was damaged in early 2011 when driven by Mr Jones and has not since been repaired. There is no evidence about the accident or any fault element involved. Although there is some evidence of an ability to obtain the services of Access cabs, there are limited options in the small country town of Strathalbyn, which is about an hour’s drive from Adelaide. There have in the past been lengthy waiting periods at times and unreliability of attendance at others, or when they arrive late – as has happened – that compromises Ms Chadwick’s ability to attend promptly for medical appointments.[580]
[579] Exhibit P7, p 56 & p168
[580] T1296.8-.24, 1353.24-1354.11, T2208.24-2209.17
Her case is based upon the purchase of a new vehicle, preferably a station wagon fitted with a hoist to enable the wheelchair to be lifted into the vehicle. This was recommended by Ms Allach and supported by Dr Marshall.[581] The question of hoists has already been disposed of for the time being.
[581] Exhibit P7, p 192 (Ms Allach)
The cost of a suitably modified conventional vehicle is estimated at about $30,000. The cost of a van to accommodate a powered wheelchair is about $130,000.[582] For the reasons already articulated it is not likely that the plaintiff would need this level of support calling for a van for perhaps several decades, but as time goes on and she becomes more and more dependant on a motorised wheelchair, her needs in this respect are likely to become correspondingly greater.[583] The plaintiff, through her counsel, acknowledges that it is ‘impossible to predict exactly when she will require a van.’[584] It may be accepted that public transport is not a reliable option, at least whilst she continues to reside in Strathalbyn. There are limitations on public transport in the metropolitan area anyway.
[582] Exhibit P7, p 192
[583] Exhibit P7, p56 & 171, T1770.14-.17, T2946.9-.17
[584] Submission in reply, para 24.4
The plaintiff puts forward again a broad-axe assessment for an award of between $75,000 and $150,000. If we were to assume a reliable vehicle were purchased once every 10 years, that would cost $60,000.00 and take the plaintiff to age 46 when the prospect of requiring a van would become more pronounced. The higher sum of $150,000.00 leaves $90,000.00 for a single van, which is a modest residual amount given the present day costs of such vehicles. It might be noticed however that in Crockett v Roberts the trial Judge made an award for a motor vehicle but then reduced ‘the claim for the cost that the plaintiff would have incurred in any event by owning and running a car for her own use’.[585] Neither party appears to have countenanced this particular contingency. Accordingly, the parties ought to be further heard upon these questions and whether it is necessary to reflect present day value, bearing in mind vehicles are likely to cost more in 10 and 20 years time, and thereafter than they do now.
[585] Above at 414 [170]
It may be acknowledged that the guidelines for levels of attendant care for paraplegic patients with complete T1 – T4 do not indicate the need of a vehicle.[586] However, given the fact that the plaintiff had the successful use of a hand-controlled vehicle in the past when one was roadworthy and she retained a licence to drive, and given the fact that she lives in a small country town without access to public transport having quite limited taxi services, the provision for a car in her case turns out to be both reasonable and necessary to her specific identifiable needs.
[586] Exhibit D29, p 182
The defendant points out that the particular question of cost of the modified vehicle was provided to the plaintiff in October 2007, which vehicle was effective enough for meeting her needs at least until damaged by Mr Jones in the accident of February 2011.[587] No evidence was adduced as to the circumstances of the accident or as to who was at fault. The fact is that she is unable to afford its repair.
[587] Exhibit D30 and T191.22-.24, T608.12-.33, and T1513.33-1514.16
Pre-judgment payments
The defendant’s position is that the compulsory insurer has already paid $158,389.42 on the plaintiff’s behalf as at 13 March 2012 and at another point $172,192.42 on account of past commercial care.[588] In addition it claims to have advanced interim payments of $67,000 ‘on account of damages generally’,[589] for which it seeks full recompense, as well as reimbursement for care payments ‘exceeding 10 hours per week from December 2008’.[590] Section 124AC of the Motor Vehicles Act 1959 (SA), provides:
If an amount claimed as expenses incurred as a result of death or bodily injury caused by or arising out of the use of a motor vehicle is paid by an insurer to or on behalf of the claimant, the amount of any damages payable to the claimant in respect of the death or bodily injury is reduced by the amount so paid.
[588] Written submission, Part II, Tab 6.2, para 2
[589] Written submission, Part II, Tab 6.5, para 3, and the schedule thereto
[590] Written submission, Part II, Tab 6.2, para 10
The fine details of what has and has not been paid by the insurer are set out in the defendant’s written submissions.[591] Since the parties have not addressed these issues and since some of the exact figures are yet to be agreed, it is proposed to postpone the outstanding matters relating to past treatment and special damages for later determination. The defendant is to formulate precisely what sum is to be deducted from the plaintiff’s aggregate award, as required by s 124AC of the Motor Vehicles Act.
[591] Written submission Part II, tab 6.5, paras 1-6
An afterword – written submissions
I mentioned at the outset the provision of over 500 pages of written submissions by counsel in this case. After the evidence was concluded, the hearing was adjourned for a number of weeks to enable the parties to prepare oral addresses over two days. They were given leave to file such written submissions as they saw fit. In retrospect, more time for the presentation of oral submissions might have been the better course, especially considering a case of this size and complexity. In giving leave to file those submissions the parties were specifically directed not to indulge in lengthy quotes from the transcript or the cases, but simply to provide page and line numbers as to the former, and citation and page (or media neutral paragraph number) in the latter.[592]
[592] T3669.6-.9
Speaking for myself, counsel should understand that from here on I am likely to be more reluctant to allow unrestrained written submissions and counsel should expect that explicit directions are likely to be given as to content, structure and length.[593]
[593] There are a plethora of distinguished Australian materials available on the topic of written submissions, for example Glissan ‘Advocacy in Practice’ 4^th Ed Butterworths 22005 Chapter 9.4, Curthoys Advocacy An Introduction LexisNexis Butterworths Australia 2006 chapter 3, McMurdo in Blank (Ed) Appellate Practice The Federation Press 2008, Chapter 8, Hampel Advocacy Manual Australian Advocacy Institute 2008 Chapter 9, Pagone in Gray (Ed) Essays in Advocacy Barr Smith Press 2012, Chapter 11.
Summary and conclusions
The detailed analysis of the evidence above has led the court to reach the following conclusions:
1.     At the point in time the plaintiff moved into the rear passenger seat of Mr Martlew’s vehicle shortly before 2.00 am on Monday morning 12 March 2007 she did not turn her mind as to whether the defendant was intoxicated or not, but she ought to have been aware that he was intoxicated, (s 47(1)(a)(iii) Civil Liability Act).
2.     Shortly thereafter the defendant lost control of the vehicle which impacted on its right hand side with a tree or trees on the right hand dirt verge of Wauraltee Road, Port Victoria, throwing the plaintiff from the vehicle; these events were caused by the gross negligence of the defendant.
3. The plaintiff could not reasonably be expected to have avoided the risks involved, within the meaning of s 47(2)(b) Civil Liability Act in the exigencies of the moment, so that the fixed statutory reduction of 50 per cent of her damages does not apply.
4. At all points in time the plaintiff was in the rear seat of the vehicle she was not wearing a seatbelt, on account of her annoyance with the defendant. The circumstances are such that she had reasonable opportunities to fasten the seatbelt so that the fixed statutory reduction of 25 per cent in the assessment of her damages applies on the basis of presumed contributory negligence under s 49(3) of the Civil Liability Act. In any event the exception provided for in s 49(2) did not apply to the facts as she was in the passenger compartment of the vehicle at the time of the accident.
5.     For the reasons outlined herein it is proposed to award various heads of damages in some cases and in others to take further submissions from the parties as to how the primary findings of fact made in relation thereto translate into dollar terms. Accordingly no final judgment is yet entered until those matters are resolved.
For present purposes those findings in relation to damages may be summarised as follows:
1.non-economic loss - an allowance of $211,530 based on a value of 52 points pursuant to s 52(2)(c) of the Civil Liability Act;[594]
[594] Paragraphs [214], [215]
2.past gratuitous services – two hours per day until 3 May 2010, at an hourly rate yet to be fixed, subject to adjustments;[595]
[595] Paragraphs [229]
3.future personal care – 7 hours per week, 10 hours per week for all combined domestic assistance plus one week per year for critical events to age 40;[596]
[596] Paragraphs [244] - [247]
4.future care after age 40 - to include four weeks per year for critical event care,[597] and six hours per week for hydrotherapy, the parties to be further heard on the precise calculations;[598]
5.case management - 4.5 hours per week for 13 weeks, then 4 hours every six months for a maximum of three years. Counsel to be heard further on the applicable rate per hour and translation into a present day dollars and the application of s 57 of the Civil Liability Act on this aspect of the award for damages;[599]
6.future treatment and medication - to be subject to further submission and assessment, consistent with the primary findings made herein and as to the application of s 127A of the Motor Vehicles Act;[600]
7.equipment and consumables - the immediate provision of a powered wheelchair as a back-up, with a greater allowance from the age of 40, the projected cost to be further addressed by the parties.[601] The plaintiff is also awarded the cost for the provision for incontinence pads, which she has yet to quantify.[602] The parties should address the evidence supporting the provision of hoists in the future, bearing in mind the preliminary conclusions reached earlier in this judgment;[603]
8.special damages – the parties have liberty to make further submissions at large on this topic;[604]
9.interest – to be allowed on the award for past gratuitous services and outstanding special damages at the rate of 6.5 per cent;[605]
10.housing and accommodation – it is proposed to allow the cost of an AV Jennings Pinnacle 190 3 bedroom home at a cost of $175,000 plus additions at a cost of $115,582. The parties should make further submissions as to the precise dollar figure appropriate in accordance with the primary findings, as to the question of whether or not the cost of purchasing a block of land is, or should be allowed, as to any associated transfer or conveyancing costs and the question of what measure of housing costs were likely to be incurred irrespective of the accident;[606]
11.holiday or vacation costs – it is proposed to allow a modest $18,000 lump sum award under this head;[607]
12.transport costs – it is proposed to allow a broad-axe sum of $150,000 for the future transport needs of the plaintiff, plus a car maintenance allowance of $45 per fortnight, subject to further submissions as to potential reductions on account of pre-judgment payments, present day value and the cost of a vehicle that would have been expended anyway.[608]
13.pre-judgment payments - the defendant is to formulate precisely what sum is to be deducted from the plaintiff’s aggregate award as required by s 124AC of the Motor Vehicles Act.[609]
[597] Paragraph [244]
[598] Paragraph [248]
[599] Paragraph [271]
[600] Paragraphs [279] - [282]
[601] Paragraphs [284] - [285]
[602] Paragraph [286]
[603] Paragraphs [283], [287], [288], [289]
[604] Paragraph [290]
[605] Paragraph [291]
[606] Paragraphs [323] - [327]
[607] Paragraph [336]
[608] Paragraphs [248], [341]
[609] Paragraph [345]
The parties should of course be heard as to any consequential issues arising out of these reasons, in relation to the identified areas in which further submissions prove necessary, the appropriate final orders to give affect to them and on the question of costs.