Collis v Hagelstein; Hagelstein v Slater

[2015] NSWDC 351

District Court

New South Wales

Medium Neutral Citation:	Collis v Hagelstein; Hagelstein v Slater [2015] NSWDC 351
Hearing dates:	15 June 2015 – 18 June 2015
Decision date:	24 July 2015
Jurisdiction:	Civil
Before:	Cogswell SC DCJ
Decision:	1. Verdict and judgment for the plaintiff against the first defendant in the sum of $952,979. The Court notes that the verdict and judgment against the second defendant would be for $1,181,979.83, exceeding the extended jurisdictional limit. Accordingly, verdict and judgment is entered for the plaintiff against the second defendant in the amount of the extended jurisdictional limit of $1,125,000. 2. Verdict and judgment on the cross-claim for the cross‑claimant against the cross‑defendant for 65% of the damages awarded against the cross‑claimant on the statement of claim, namely $619,436.89. 3. The defendants are to pay the plaintiff's costs as agreed or assessed. 4. On the cross‑claim, the cross‑defendant is to pay the cross‑claimant's costs as agreed or assessed.
Catchwords:	CIVIL LAW – torts – negligence – personal injury – motor accident caused by cows on road – plaintiff’s employment options and lifestyle substantially impacted by accident – liability admitted by first defendant – second defendant failed to adequately fence land allowing cows onto highway – second defendant found to be liable in negligence – respective contributions of defendants – liability apportioned between defendants – award of damages – general damages – 40% of a most extreme case – compensable earnings – whether 13 week period sufficiently representative
Legislation Cited:	Animals Act 1977 (NSW), ss 7, 9 Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D District Court Act 1973 (NSW), 22 44, 51 Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Rylands v Fletcher (1868) LR 3 HL 330 Strong v Woolworths Ltd (2013) 246 CLR 182
Category:	Principal judgment
Parties:	David Allan Collis (Plaintiff) Errol Hagelstein (First defendant and cross-claimant) Darren Alan Slater (Second defendant and cross-defendant)
Representation:	Counsel: D Toomey (Plaintiff) D O’Dowd (First defendant and cross claimant)   Solicitors: Stacks Law Firm, Taree (Plaintiff) Hall & Wilcox (First defendant and cross-claimant)
File Number(s):	2013/93995

Judgment

Introduction

1. This is a case about a man who tried to stop his car on a coastal highway because some cattle had escaped from a nearby paddock onto the road.  Another car travelling behind came around a bend and crashed heavily into the back of the man's car.  The man has sued the driver of the second car and the owner of the paddock from where the cows escaped. 

2. The man's name is David Allan Collis.  He is the plaintiff in the case and was represented by Mr D Toomey of counsel.  The driver of the second car was Errol Hagelstein.  He is the first defendant in the case and was represented by Mr D O'Dowd of counsel.  He has admitted that he is liable in negligence for the accident although he says that the paddock owner must share responsibility.  The paddock owner is Darren Alan Slater. He is the second defendant in the case.  Mr Slater filed a defence in the proceedings, but then the solicitor acting for him filed a notice of ceasing to act. Mr Slater appears to have taken no more part in the proceedings.

3. Although Mr Collis has sued both the driver of the other car and the paddock owner in negligence, the statutory law is different for each defendant.  The law governing the claim against the other car driver, Mr Hagelstein, is the Motor Accidents Compensation Act 1999 (NSW). The law governing the liability of the paddock owner, Mr Slater, is the Civil Liability Act 2002 (NSW).

The Plaintiff

4. Mr Toomey called his client, Mr Collis, and his client's wife, Alisha Collis, to give evidence.  Mr Collis impressed me as a genuine and truthful witness.  This is reflected in Mr O'Dowd's cross‑examination.  Mr O'Dowd acknowledged in his cross‑examination of Mr Collis that he had a very good work history and Mr O'Dowd's cross‑examination focused on the significance of changes to where Mr Collis and his family were living and his ongoing capacity to undertake employment and domestic activities.  He also explored some of Mr Collis' previous injuries.

5. Mr Collis, who is now 47, lives with his family on a property called “Waterview” near Grafton.  It is about 120 acres.  He grew up in Sydney and left school after year 11.  Since leaving school, and until the accident, he has had steady and remunerative employment in various occupations.  He has received some training as a welder and also received qualifications as an excavator and backhoe operator.  His employment history mostly involves transport and logistics but he has undertaken different kinds of activities in that field.  Most of those activities, however, have been on the road.  For many years he maintained more than one job and would commute between his home in Sydney and the central coast to undertake a second job which also involved transport.  As a rule, the changes in his jobs had to do with businesses closing down or improving his own situation.

6. Before the accident, Mr Collis had an active lifestyle which included swimming and surfing and motorbike riding. He engaged very much with his family comprising his wife and two sons.

7. I do not propose to recount the evidence of Mr Collis apart from making those observations and apart from references that I will make in my findings and opinions.  I can say that I accept all that he has said and, I repeat, I find that he was a witness of truth who was reliable. I also accept the evidence of Mrs Collis.

The accident

8. I turn now to the accident and to what happened in the accident.  There are two eye witness accounts. One is from a policeman at the scene and the other is from Mr Hagelstein.  I should say at this point that Mr Collis himself has no personal memory of what happened.  After the crash, the next thing he remembers is waking up in hospital.  He knew that he had finished work at 6 o'clock and was driving home to South Grafton on the Pacific Highway.  That is the last thing he remembers.

9. The police were already at the scene of the accident before it happened. Some cows had escaped from Mr Slater's paddock and were on the road. This brought about what the police regarded as a dangerous situation for the traffic and they had been called out to manage it.  One of the police officers was Senior Constable Shane Pitt.  His statement was included in exhibit L.  He was at the scene at about 20 past 6 on the evening that the accident happened which was Friday 8 July 2011.  He saw cows on the road.  What he did was to place "the emergency red and blue lights on and my hazard lights on as it was pitch black".  He went on to say that the “situation was dangerous as the cows were black and brown.  Any motorist would have no chance of seeing these cows."  The cows were wandering over the road and the police were trying to get them off the road.  Senior Constable Pitt went on to say that "the situation was extremely dangerous as this location was now on a blind corner." 

10. The situation deteriorated.  A large truck emerged and hit a cow but kept going.  Senior Constable Pitt "called for urgent assistance".  Another cow went onto the road.  The situation "was very dangerous."  He and others "could do little as we were still on a blind corner."  Then he saw Mr Collis' car. It was travelling around the blind bend.  He applied his brakes and missed a cow on the road.  However, Mr Hagelstein's car was travelling behind.  It was towing a boat.  Mr Hagelstein also applied his brakes but, as Senior Constable Pitt observed, "has unavoidably collided into the rear” of Mr Collis' car.  Mr Collis' car was forced into another cow.  Mr Collis was trapped in the car.  Ambulance, the fire brigade and a lot of other assistance arrived in due course.

11. Exhibit A contains photographs of Mr Collis' car and of Mr Hagelstein's car.  The photographs show just how serious the collision was.  The rear of Mr Collis' car was effectively concertinaed and squashed.  It must be remembered that Mr Hagelstein's car was towing a boat, so there was additional momentum in the collision.

12. The other eye witness account comes from Mr Hagelstein.  He was driving north along the Pacific Highway.  He was towing a boat on a boat trailer.  He was in a line of three or four cars. He was the fourth one. They were travelling at about 80 kilometres an hour.  Near the point of the accident "the Highway is a single lane for traffic travelling north and south."  (His statement, I should add, became exhibit 3.)  He approached the bend just before the impact.  Mr Collis' car was about 20 to 25 metres in front of him and travelling at about the same speed.  There was a sweeping left‑hand bend.  The area along the left was tree lined.  The bend was such that it was "difficult to see any oncoming vehicles coming from around the corner or to see anything that may be occurring around the corner before you actually get around it.  It was also dark at the time."  Just before the bend, he said there was a sign indicating that the speed limit was 80 kilometres an hour. He said he himself was travelling “at about 80km/h as I went around this left hand bend.”

As he came out of the bend, he -

"noticed some headlights in the bottom of the gully approximately 100 meters or so in front.  I also believe I saw the red and blue flashing lights of a Police Vehicle at this time.  The next thing I recall seeing is a number of cows and people who appeared to be trying to get the cows off the road.  The vehicle in front of me braked heavily and appeared to move to its left apparently trying to avoid the cows."

Mr Hagelstein -

"braked heavily in an attempt to avoid the vehicle in front and also the cows.  I don't think the vehicle in front of me had stopped when I impacted with the rear of that vehicle with the front of my vehicle.  I believe the vehicle in front of me had started to move to the right as the impact with my vehicle caused this vehicle to slide across the highway coming to rest on the opposite side."

13. I accept both of those accounts of the accident.  They were not challenged and indeed Mr Hagelstein's account was tendered by his counsel and Senior Constable Pitt's account was that of a trained police officer.

Liability of the first defendant

14. As I have already said, Mr Hagelstein admitted his liability in negligence for the collision with Mr Collis' car.  I also repeat that he claims that Mr Slater must share the responsibility. Indeed he has made a cross‑claim against Mr Slater.

Liability of the second defendant

15. As I have also said, Mr Slater was not represented in the proceedings.  I therefore need to make a finding or findings about the liability of Mr Slater. As Mr Toomey reminded me, the liability of Mr Slater is one which is determined according to the common law principles of negligence and not the older common law contained in Rylands v Fletcher (1868) LR 3 HL 330 (see Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520). Indeed, as Mr Toomey also pointed out, s 7 of the AnimalsAct 1977 (NSW) provides, by s 9, that the "rule in Rylands v Fletcher does not apply in relation to damage caused by an animal" and any other restrictions or qualifications relating to animals were abrogated by s 7 of the same Act.

16. Mr Toomey tendered a number of exhibits concerning the liability of Mr Slater.  An important one was exhibit K which were documents from the local council, the Clarence Valley Council, who were responsible for the place where Mr Slater's property was.  Part of exhibit K was a letter addressed to Mr Slater dated 22 June 2011, a few weeks before the accident.  It gave Mr Slater notice of the Council's intention to serve an order requiring Mr Slater to "fence the land that borders onto the Pacific Highway, to an appropriate standard for the area."  It specified those standards.

17. Part of exhibit K were also file notes regarding communications between representatives of the Council and Mr Slater.  One of the notes records that Council officers attended the property on 22 June 2011 (the date of the notice) and found a black cow on the road.  It noted that Mr Slater owned the property adjacent to the road.  Council officers a couple of weeks later - and only a few days before the accident on 5 July 2011 - went to see the person who occupied the property, a Ms Matthews.  She claimed to be the owner of the cows.  They told her that a notice would be issued to the owner regarding the need to fence the property.  Whatever Mr Slater did after 22 June 2011 was not regarded as satisfactory, because on 5 July 2011 the Council issued "EMERGENCY ORDER NUMBER 7" ordering Mr Slater to "fence the land that borders onto the Pacific Highway, to an appropriate standard for the area, to prevent stock from leaving your property onto public land and becoming a hazard for the travelling public on the Highway." What may have prompted that notice is the fact that some Council officers had attended nearby on that day and again found a cow on the highway.  One of the officers phoned the second defendant, Mr Slater, that same afternoon telling him about the emergency order that would be issued and given to the occupier of the property.  It was handed over later that afternoon.  Mr Slater phoned an officer that afternoon.  He was on his way back from Armidale.  He told the officer that "he had organi[s]ed 4 of his friends to attend his property this afternoon and make repairs to the fence to stop the cattle getting out.”  Mr Slater said “he had organi[s]ed for a large bale of hay to be placed at the rear of his property to stop the cattle wandering on to the Highway."

18. Two days later on 7 July 2011, some officers visited the property to check the repairs.  They took photographs.  The repairs were inadequate.  That is obvious from exhibit M, a statement from one of the officers with the photographs attached and dated.  They clearly show, especially number 5, the inadequacy of the repairs to the fence.  They phoned the occupier of the property. Despite the Council's commendable efforts at trying to get the fence repaired, the risk which they had exposed and attempted to deal with brought about the accident in which Mr Collis was injured.

19. The file notes in exhibit K go on to record that Mr Slater became aware of the accident and said "wild dogs must have chased the cattle".  He said that he "had walked the fence line on the night of the accident with the Police and the S.E.S and found where the cattle had been chased onto the Highway by wild dogs."

20. As Mr Toomey said in his submissions, the photographs in exhibit M show the dilapidated state of the fencing and gaps in the fencing.  I accept his submission that it was quite plain that the fence was dilapidated. Not only on 22 June 2011 when Council first started acting, but in the days up to and including the accident.

21. Exhibit O was a notice to admit facts.  It was served by the solicitors for Mr Hagelstein on Mr Slater, the second defendant.  It asked him to admit that at the date of the accident he was the owner of the property identified in the Council's papers, namely 6741 Pacific Highway, Glenugie in New South Wales and that he was "the owner of the cattle which escaped from the property…onto the highway on 8 July 2011 between 6.30pm and 7pm." Mr D Stoddart, the solicitor for Mr Hagelstein, gave evidence before me that he sent the notice to admit and had not received any notice disputing the facts contained in it.  The notice had been served by post on Mr Slater's last address.  Previous letters sent by registered post had been signed for.  There had been no response to this notice.  I accept that evidence and the facts which are contained in the notice to admit facts attached as part of exhibit O. 

22. Although there is also evidence that the occupier of the property owned the cattle, I accept that Mr Slater has acknowledged that he owned the property and also the cattle.  It is not necessarily inconsistent with the evidence that somebody else owned the cattle as well.

23. The case against Mr Slater, as Mr Toomey reminded me, is the subject of the Civil Liability Act. Mr Toomey took me to the general principles on liability contained in s 5B of that Act. Section 5B(1) provides that a "person is not negligent in failing to take precautions against a risk of harm unless" certain conditions are fulfilled. I agree with Mr Toomey that the risk was foreseeable; indeed it was foreseen and drawn to the attention of Mr Slater. The road was, I agree, a major highway on the eastern seaboard of Australia. I accept Mr Toomey's submission that the risk "was not insignificant". It was obviously a dangerous situation. The evidence of the police alone makes that apparent. A reasonable person in Mr Slater's position would have taken precautions against the risk. Indeed, the precautions were a requirement of the local council.

24. Mr Toomey took me to s 5B(2) which requires me to consider certain matters in "determining whether a reasonable person would have taken precautions against a risk of harm." The probability of harm, I agree, was quite high. It was so high that a number of official agencies were involved in reducing the risk to the public because of that probability of harm. The agencies were the local council and the police. The likely seriousness of the harm was great. The property was near a bend described as a blind bend. It was the middle of winter and in an area where the speed limit was 80 kilometres an hour. The burden of taking precautions was quite reasonable. It simply required Mr Slater to maintain his property to a reasonably appropriate standard, indeed one which was required by the law.

25. The social utility of the activity creating the risk is not really a relevant consideration, Mr Toomey argues, because the activity which created the risk was the failure to mend the fence.  I agree with him in that submission. 

26. I agree with Mr Toomey so far as s 5C of the Act is concerned. There is nothing militating against the breach. It was unreasonable for Mr Slater not to take the precautions which he was required to take. It was a very specific risk. It was not a vast area and it was a relatively short boundary fence on a highway. The inadequacy had been drawn to Mr Slater's attention.

27. So far as s 5D of the Civil Liability Act is concerned, I am satisfied that Mr Slater's negligence was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of Mr Slater's liability to extend to the harm.  If Mr Slater had discharged his duty and repaired the fence, I think it unlikely that the cattle would have escaped from an appropriately repaired fence and the accident would not have happened.  At the very least, Mr Slater's negligence materially contributed to Mr Collis' harm.  Mr Toomey, in that regard, drew my attention to the High Court's decision in Strong v Woolworths Ltd (2013) 246 CLR 182.

28. For the reasons that I have given, I am of the opinion that Mr Slater is liable in negligence to Mr Collis for the accident which caused the injury to Mr Collis.

Contribution of the defendants

29. I turn now to the question of the respective liabilities of Mr Hagelstein, the driver of the second car, and Mr Slater, the owner of the paddock.

30. Mr O'Dowd argued that I should apportion liability 80% against Mr Slater and 20% against his client.  He relied upon the submissions of Mr Toomey (which I have just been referring to in making my findings against Mr Slater).  He emphasised Mr Slater's actual knowledge and the series of warnings which he had been given.  Mr O'Dowd described Mr Slater's negligence as gross given that there was actual knowledge.  He relied on the statement of Senior Constable Pitt containing the narrative of the accident including the expression in para 12 asserting that Mr Hagelstein's car had "unavoidably collided" with Mr Collis' car.  He acknowledged that there had been a blind bend.  He argued that, as I say, his client should bear 20% of the responsibility at the very most. 

29. I agree that Mr Slater should bear more responsibility but I do not think that it should be as high as 80%. Emphasising what Mr O'Dowd argues was the gross negligence of Mr Slater does not relieve me of assessing the relative responsibility of his client. 

30. There were a number of factors about the accident which need to be taken into account.  One is that Mr Hagelstein was entering a blind bend.  Another is that he needed to keep a safe distance from the car in front of him.  A third is that he had to maintain a speed which would enable him to stop in time.  The indication on the road by the road signs that the speed limit was 80 kilometres an hour would tell him that that was a safe speed at which to negotiate the bend.  It did not tell him what a safe speed was to go into the blind bend at night following another car or at what distance he should follow that car.  He was also drawing a boat on a trailer behind him.  The likely seriousness of a rear end collision would be increased by the added weight of the boat.  The realisation of that possibility is obvious from exhibit A.

31. To my mind, Mr Hagelstein should bear 35% of the responsibility for the accident and Mr Slater should bear 65% of the responsibility for the accident.

Damages

34. Having determined the liability of Mr Slater and Mr Hagelstein's liability having been admitted and having determined the respective contributions of the two defendants to the accident, I now turn to the question of damages. 

The medical evidence

35. Both Mr Toomey on behalf of his client and Mr O'Dowd on behalf of his client tendered medical evidence.  The medical evidence supporting Mr Collis' case is contained in exhibit B.  It comes from an orthopaedic surgeon qualified to provide an opinion.  He is Dr James Bodel.  It includes a psychiatrist also qualified to give an opinion.  He is Dr Brian Parsonage.  It includes a good deal of evidence from a Dr Marc Russo, who is a specialist pain medicine physician who treated Mr Collis.  It also comprises evidence from a rheumatologist and some radiological evidence as well as an additional rheumatologist and ophthalmic surgeon.

36. Dr Bodel's diagnosis was a "soft tissue injury to the neck and probable minor disc pathology" caused by the accident.  He thought that Mr Collis'  "ability to find work on the open labour market has been compromised." He thought he needed assistance for domestic chores.  That opinion was expressed on 28 August 2012.  Dr Bodel has seen Mr Collis regularly since then and provided up to date reports.  His most recent report is dated 11 June 2015 where he expressed the opinion that the effects of the accident "do cause ongoing disability in regards to work."  Dr Bodel noted that Mr Collis was working 25 hours a week doing bar work in a hotel and agreed that Mr Collis, "may well struggle with that from time to time because of the effects of injury."  He said that Mr Collis is "not able to engage in work that is repetitive or heavy and he needs to be able to take regular breaks."  He added that it would be "prudent for him to be able to stand, sit or walk throughout the working day at will." Dr Bodel confirmed that Mr Collis not fit for heavy or repetitive work and probably remains unfit for work as a plant operator.

37. In a report dated 13 November 2014 Dr Bodel confirmed his diagnosis of "a significant head injury and neck injury as a result of the motor vehicle accident”. He thought his prognosis remained guarded.  That was because Mr Collis "has not responded well to all of the treatment modalities that have been undertaken."

38. Mr Collis' GP had sent him to a rheumatologist, a Dr Peter Wong.  He provided a series of reports to the GP as well as one to Mr Collis' solicitors, dated 9 March 2015.  His diagnosis was of "[n]on-radiographic spondyloarthropathy in the setting of previous neck injury related to motor vehicle accident". That itself was unrelated to the motor vehicle accident and is being adequately treated and not contributing to any work incapacity.  It means that that is not a problem that stems from the car accident or contributes to any incapacity for work.

39. The psychiatrist, Dr Parsonage, diagnosed Mr Collis as suffering an adjustment disorder with mixed anxiety and a depressed mood.  That diagnosis is "secondary to his painful and disabling conditions which arose from the accident."  His improvement will depend "largely on whether any further improvement is made in his painful and disabling physical conditions."  Dr Parsonage thought that Mr Collis' "psychological injuries alone would prevent him working in his same position but he could perform less than 20 hours per week in a less demanding position."  He thought that he should have about ten hours of psychological or psychiatric treatment.  In his most recent report dated 16 June 2014, Dr Parsonage said that in Mr Collis' case "there is the ongoing stressor of pain and associated disability."  He therefore expected a "persistence in symptoms."  He said in fact that the "presence of a psychological condition in addition to a physical injury can interact causing a vicious circle of negative interactions between physical and psychological symptoms causing an escalation of both."

40. Mr Collis has been managed by his GPs regularly and actively treated.  The history of his treatment including referrals to specialists, in particular Dr Russo, is set out in a chronology which Mr Collis verified and which became exhibit E.  I accept that and exhibit F, which is Mr Collis' curriculum vitae.

41. Dr Russo provided a series of reports to Mr Collis' referring general practitioner.  Dr Russo has actively treated Mr Collis over some years.  He has treated him with a powerful pain reducing medication.  He noted that Mr Collis "presented with persistent focal neck pain, post motor vehicle crash" and had a whiplash associated disorder which "appear to be a combination of myofascial pain and probable facet joint pain."  Dr Russo described in his report of 11 April 2012 (which is contained at p 47 of exhibit B) the "multi‑modal treatment" that he recommended which included self‑help, psychological and pain relieving medication and what he described as a "screening medial branch block of the third occipital nerve."  He thought Mr Collis fit for modified duties.  Dr Russo has been treating him over the years and his treatment came to include radiofrequency neurotomy which had a satisfactory result in eliminating his headaches and residual pain.  He still had to take medication.  He required a repeat of that procedure but as at 18 March 2014 was "still getting irritation of the occipital nerve through functional entrapment from forward head posture and ongoing muscle spasm and, therefore, he'll need specific treatment for that."  He recommended some pain reducing medication.

42. I accept the evidence of the doctors from whom I have quoted.

43. The medical evidence tendered by Mr O'Dowd included a report from a psychiatrist, Dr John Albert Roberts.  Dr Roberts found that he was unable to confirm a diagnosable psychiatric condition and thought that Mr Collis had experienced a "catastrophic response in the context of a minimal motor vehicle accident with no apparent demonstrable physical sequelae."  He did not think that reaction was "readily explicable on psychiatric grounds." 

44. I do not accept Dr Roberts' opinion.  It is inconsistent with the diagnoses of the qualified orthopaedic surgeon, Dr Bodel, and the treating pain specialist, Dr Russo.  I also accept that Mr Collis has been genuinely pursuing pain relief since his accident and that there is a genuine basis for his pain. 

45. Another reason for not accepting Dr Roberts' opinion is his description of the accident as "minimal".  I appreciate that Dr Roberts may not have had access to what I have in exhibit A. The accident was far from minimal.  Dr Roberts assumed that from "the information contained in reports of a physical nature" Mr Collis should have long recovered from the accident.  That is inconsistent with the reports of the doctors I have referred to. Indeed it is inconsistent with the report of an orthopaedic surgeon qualified to give an opinion in Mr Hagelstein's case. That doctor is Dr Robert Breit.  He took a history of the accident and had information concerning it and found that Mr Collis had an ability to work fulltime but with suitable duties.  The duties would need to be of a sedentary nature and Dr Breit thought that Mr Collis would need to have "a proper vocational assessment to determine the range given his education and skills."  Dr Breit thought that the "disability is entirely related to the accident."

Jurisdictional limit

46. Before turning to an assessment of the damages, I need to refer to a question about my jurisdiction. This question was properly raised by Mr Toomey. My jurisdictional limit is $750,000. That follows from s 44 of the District Court Act 1973. But as Mr Toomey argues in a note which he sent to my associate and copied in Mr O'Dowd (the note was sent at my request), there was no objection to the Court's jurisdiction raised in the three months preceding the trial. The statement of particulars, he argued, conveys a claim exceeding $750,000. Furthermore, he argued, the result of s 51(4) of that Act is that the maximum amount for which I may give judgment is increased by another 50% so that I have jurisdiction to enter judgment against Mr Slater up to an amount of $1,125,000.  (There is no jurisdictional limit so far as any judgment against Mr Hagelstein is concerned.)  I accept that submission by Mr Toomey and I will mark his note MFI 13.

General damages

47. I turn now to an assessment of damages against the respective defendants.  General damages is not available against Mr Hagelstein but is available against Mr Slater.  I will, therefore, first turn to the question of general damages.

48. Mr Toomey argued on behalf of his client that the assessment should be 40% of a most extreme case.  He argued that the medical evidence demonstrated that his client had suffered a very severe whiplash ‑ I use that general description to cover the diagnoses that I have referred to.  I agree that the evidence (which I have accepted from Mr Collis and his ongoing treatment) indicates that he is still suffering and will continue to suffer.  His diagnosis is guarded. I accept that.  He has had extensive medical treatment, including severe pain limiting medication.  There has been a very serious disruption to their family life.  Mr Collis, I accept, was ambitious and hardworking.  He had improved himself a number of times over the years.  He was a relatively young man in his 40s when the accident happened.  He was particularly active.  The activity included buying and developing rural properties and engaging very much with his children and his family in recreational activities.

49. I accept the evidence given by Mrs Collis.  As Mr Toomey argued, Mr Collis’ life has effectively fallen apart.  He is physically not the man that he used to be. The accident and his reaction to the pain and disability have caused a significant tension between him and his wife and within the family.

50. I agree with Mr Toomey's submission that the extent of general damages should be 40% of a most extreme case. That comes to a figure of $229,000.

Past out of pocket expenses

51. There were some uncontentious matters in the damages.  The past out of pocket expenses were not challenged on behalf of Mr Hagelstein.  Of course, Mr Slater was unrepresented but I accept the evidence of the expenses which have been incurred by Mr Collis and substantiated by exhibit N. Hence, I find that both defendants are liable for the past out of pocket expenses which amount to $98,164.83.

Fox v Wood

52. There is a figure representing what is commonly known as the Fox v Wood component of damages.  That is agreed at $25,000 and I accept that estimate and find that that should be payable by both defendants.

53. There remain in controversy damages for past economic loss, future economic loss, future out of pocket expenses and future care.

Past economic loss

54. The damages for past economic loss claimed on behalf of Mr Collis are $236,293. That is itemised which are set out in one of the schedules which became MFI 12.  That is a controversial figure because it is calculated by reference to comparable earnings, that is, earnings which someone in Mr Collis' position would have earned. This is contested by Mr O'Dowd.  Mr O'Dowd has made available on behalf of his client in MFI 8, a calculation which amounts to $178,150 based upon actual earnings in the job which Mr Collis was doing for a period of some 13 weeks.  The controversy is whether the appropriate comparable earnings are the ones provided by Mr Toomey covering a period of about three years or the ones provided by Mr O'Dowd covering a period of some 13 weeks. 

55. I find that Mr Collis intended to stay on in his employment with the same employer that he was with when he was injured.  I think it likely that he would have stayed on in that area and continued in that work or comparable work with another employer.  He had been working in that kind of work on highways for some years.  They had moved to the property and he was intending to stay in that kind of work and commute.  He had commuted before.  He was a tireless worker and was prepared to travel for his employment. 

56. On the one hand we know from Mr Toomey what an excavator driver on road construction work would earn. We know from Mr O'Dowd what Mr Collis' actual earnings were for 13 weeks up to the date of the accident.  Those actual earnings were lower than the comparable earnings provided by Mr Toomey.

57. The period of 13 weeks of the actual earnings is over autumn and winter.  It is not a whole year.  It was affected by rain.  When it rained Mr Collis did not necessarily work.  But of course the rain that affected the employment in that period of 13 weeks would not necessarily affect employment to the same extent over one year.  I infer that all road construction to some extent will be weather affected.  Mr Collis acknowledged that one cannot work on a road in a quagmire.  To my mind, the better comparable figure is the average over three years provided by Mr Toomey.  I accept his submissions in this regard. Although, as Mr O'Dowd argues, his figures display the actual earnings of Mr Collis on that job, those earnings were only for 13 weeks of the year.  On the other hand the earnings provided by Mr Toomey are for each of three years, and would reflect weather effects over that period.  In a sense, what Mr Collis actually earned, as Mr O'Dowd argues, would be more accurate than the comparables but the difficulty with the actual earnings is the limited period that they cover.  One would hardly take, for example, a period of say four weeks and base comparable earnings on that.  It would be unfair and not reflect the whole year.  To my mind, Mr Toomey's comparables are preferable because they reflect a longer period than the limited weather-affected period of the earnings provided by Mr O'Dowd.

58. I accept the calculations contained in MFI 12 for the past loss of earnings contained in the schedule and I find a past loss of earnings of $236,293.

Residual earning capacity

59. There was some argument about Mr Collis' residual earning capacity.  He works about 25 hours a week in a hotel behind the bar and collecting glasses.  There is no doubt that Mr Collis has a residual earning capacity.  He has been exercising it at the hotel. But in my opinion he is at the limit of his capacity.  I accept the evidence of his wife, Mrs Collis, about her husband being exhausted and needing rest before and after work.  I also accept that Mr Collis worked longer hours at the hotel but had to cut back.

60. Mr Collis was very proactive in looking for employment before getting this job. He was making up to five applications a week.  He was cooperating with an employment agency.  There was no work for someone with his capacity until he found the hotel job.  I must make a practical assessment of the likelihood of him obtaining work to suit his capacity.  To my mind, the work which he presently does at the hotel reflects his residual earning capacity and indeed reflects the limit of his residual earning capacity.

Future economic loss

61. That brings me to the question of his future earning capacity.  Mr O'Dowd argues that Mr Collis' residual earning capacity is somewhere between $525 a week and $900 a week.  Mr Toomey argues that his average weekly earnings at the moment of $469 a week are his limit.  I am prepared to estimate that his residual earning capacity is, say, $500 a week.  There may be some small improvement but I would not put it greater than being reflected by a capacity of $500 a week.  I do not think that there is evidence to suggest that Mr Collis would turn a profit from his farming. Indeed, as Mr O'Dowd points out, particulars were not supplied in respect of such a claim.

62. The comparable earnings suggest that, but for the injury, Mr Collis would be earning about $1,300 a week. So the gap between $1,300 a week and $500 a week is an ongoing loss of about $800 a week.

63. Turning to Mr Toomey's MFI 12 and the calculation for future economic loss contained in that document, I would accept the formula which is there provided except that I regard the differential as $800 a week.  The multiplier is 666.4 and I would allow 15% discount for contingencies.  The figure which is produced by my calculations, is $453,152. I would award this amount for future loss in earning capacity.

Superannuation

64. The past loss of superannuation, I should have said, on the assessment of past economic loss of $236,293 should be 11% and the figure I award is $25,992.  That is the figure claimed by Mr Toomey in MFI 12.

65. The allowance for future earning capacity is $453,152 and a future loss of superannuation is calculated at 12%. By my calculations that throws up a figure of $54,378.

Future out of pocket expenses

66. There are two remaining heads of damages. Both of them were controversial.  One is the figure for future out of pocket expenses.  Mr Toomey did a calculation which is contained in MFI 12.  Mr O'Dowd took issue with a few of those items.  He argued that there should be an allowance made for a Medicare reimbursement in respect of attendance on a general practitioner and that an allowance for future neurotomy can be made but perhaps not every two years into the future for as long as is claimed.  Mr O'Dowd also argued that the allowance for physiotherapy should not be as generous as is claimed because Mr Collis had discontinued the physiotherapy and indeed Mr Breit thought that it need not be continued.  There is some force in these arguments. 

67. The claim made by Mr Collis was for $68,760.  I do agree that I should make some allowance for physiotherapy.  As Mr Toomey argued, it is the likelihood of the need for physiotherapy. That is a prediction.  The difference between the claim made on behalf of Mr Collis and the claim acknowledged by Mr O'Dowd is only about $14,000.  The claim acknowledged by Mr O'Dowd is contained in MFI 11. 

68. I would be prepared to award an amount of $60,000 for future out of pocket expenses, bearing in mind what I have said.

Future care

69. Finally, I come to the claim for future care.  As Mr O'Dowd argues, his claim is not for work inside but outside the home.  It covers things like mowing and gardening and the heavier handyman work.  The work aggravates his pain, as Mr Toomey points out.  Mr O'Dowd argues that Mr Collis does his own work and has returned to his inside tasks and, so far as his outside tasks are concerned, he paces himself.  He does some mowing but when it gets too hard, he stops and comes back a few hours or a few days later.  Mr O'Dowd said that there is no garden at present and we do not know whether any future garden will require maintenance.  It could be a garden which does not require maintenance.  To my mind the variables in such an estimate would include whether gratuitous assistance would be available in the future (Mr Collis has two sons aged at present twelve and nine) and whether the garden would be a low maintenance garden, and indeed whether Mr Collis would continue such tasks in any event until the age of 75.  The kind of garden which is developed at the property is in the control of Mr Collis and his wife and his sons may well assist with the heavier tasks in the near future.

69. Mr Collis did not really present himself as needing domestic assistance from an outside provider for those heavier outside tasks.  In that sense he did not assist his own case.  That is commendable, but it is not for me to award him for not mounting a solid claim.  As I said, I think he is a very good and honest witness. However, I am not satisfied on the balance of probabilities that he has made out a claim for any future care.

Orders

71. Accordingly, I enter a verdict and judgment for the plaintiff against the first defendant in the sum of $952,979. I note the verdict and judgment against the second defendant would be for $1,181,979.83.  That exceeds the extended jurisdictional limit. Accordingly, I enter a verdict and judgment for the plaintiff against the second defendant in the amount of the extended jurisdictional limit of $1,125,000.

72. On the cross‑claim, I enter verdict and judgment for the cross‑claimant against the cross‑defendant for 65% of the damages awarded against the cross‑claimant on the statement of claim, namely $619,436.89.

73. The defendants are to pay the plaintiff's costs as agreed or assessed.

74. On the cross‑claim, the cross‑defendant is to pay the cross‑claimant's costs as agreed or assessed.

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Decision last updated: 08 February 2016