Dawson v Eicas - [2014] SADC 151

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DAWSON v EICAS
[2014] SADC 151
Judgment of His Honour Judge Stretton
29 August 2014
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES - FAILURE TO LOOK-OUT - GENERALLY
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES - FAILURE TO GIVE WARNINGS OR SIGNALS
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - ROAD ACCIDENT CASES
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
On the afternoon of Sunday 7 September 2008 the plaintiff was riding his motorcycle down the northbound left hand lane of Frome Road, also occupied by parked cars, when the defendant was also travelling on Frome Road but in the right hand lane. Not realising the plaintiff was about to pass her on the inside, the defendant manoeuvred towards a parking space to the left. A collision occurred and the plaintiff was seriously injured. Liability for the accident and the plaintiff’s loss and damage were in dispute.
Held:
1. Responsibility for the accident apportioned 80% to the defendant and 20% to the plaintiff.
2. Assessment of the plaintiff’s loss and damage undertaken.
Civil Liability Act 1936 (SA) ss 52, 54, 56, 58, and generally, applied.

DAWSON v EICAS
[2014] SADC 151
Introduction - a road accident occurs

At about 3pm on the Sunday afternoon of 7 September 2008 the plaintiff Peter Dawson (“the plaintiff”) was riding his 1050cc Triumph Sprint motorcycle from Rundle Street East in a northerly direction down Frome Road to North Adelaide. He was travelling between the Cold Rock Ice Cream franchises he owned in each of those locations. His partner was in the pillion seat. He was intending to meet other family members in North Adelaide for Fathers’ Day, and to show them a new dessert range he was planning to introduce.
The Plaintiff was riding along Frome Road in the left of two northbound lanes. That lane was primarily occupied by parked cars, however the plaintiff rode his motorcycle along in that lane next to the row of parked cars.
The defendant Edite Eicas (“the defendant”) and two of her friends were also driving north along Frome Road. The defendant drove in the right lane, the only lane in which car traffic could proceed, given the left lane was primarily occupied by parked cars. The defendant and her friends were looking to park, so that they could visit the SA Art Gallery.
The plaintiff’s motor cycle was adjacent the rear left hand corner of the defendant’s car.
The defendant saw a vacant park ahead, and moved left towards it. The two vehicles struck a glancing blow, and seconds later the plaintiff’s motor cycle struck the rear of the parked car at the front of the parking space the defendant had been intending to occupy.
The plaintiff and his passenger were thrown from the motorcycle, and were seriously injured. The defendant’s injuries were initially life threatening. At the time of trial, over 5 years later, the plaintiff remains significantly affected by his injuries.
Police attended, but notwithstanding the seriousness of the accident it was very poorly investigated. No accident plan or diagram was drawn up, no measurements were taken and no statements were taken from any of the three occupants of the defendant’s car, despite their offers at the time to give full statements.
The issues in the case – who caused the accident and what is the plaintiff’s loss
The plaintiff and the defendant disagree about who caused the accident.
The plaintiff says there was enough room for him to drive his motorcycle safely along in the left lane to the right of the vehicles parked in it, and that the defendant did not indicate before moving to the left, striking him and causing him to veer to the left and hit the back of a parked car. He called some witnesses to support that version of events. The plaintiff’s case is that the defendant was entirely responsible for the accident.
The defendant and her two passengers say that they were travelling under the speed limit along Frome Road looking for a parking spot. They say that the defendant saw a park up ahead, switched on the left hand indicator in good time, slowed and moved to the left. The defendant says that she looked in her rear view and right rear mirror to check the traffic behind, but did not consider that anyone would be, and nor should they be, riding a motorcycle up the edge of what she considered to be an occupied parking lane, so did not check her left hand side mirror. The defendant admits some responsibility but says that the plaintiff’s actions contributed to causing the accident.
The plaintiff and the defendant’s insurer also disagree about the degree to which the plaintiff has suffered loss and damage. There is no doubt the plaintiff was seriously injured and remains significantly affected and incapacitated. The main disagreement concerns the defendant’s future earning capacity, with the plaintiff claiming no future earning capacity and the defence asserting that the plaintiff has some future capacity to earn.
Who caused the accident?
The court has closely considered all the evidence that each witness gave about what happened on Frome Road on the day of the accident, and all the tendered material relevant to it. For clarity and brevity I will not summarise it at length or in detail, however it has all been carefully considered as have all of counsel’s oral and written submissions concerning the facts.
Again, for brevity and clarity I will also not list and separately discuss all the factual matters highlighted in counsel’s comprehensive and helpful addresses nor summarise the many arguments each made in support of their cases, however I have taken into account, closely considered and been assisted by everything raised and highlighted by counsel.
The evidence called about the accident
The plaintiff gave evidence himself[1] and called two witnesses, Mr Amrik Thandi[2] a passenger in a car travelling behind the parties and Ms Elena Tieri[3] a pedestrian who was walking south along the western footpath of Frome Road. The defendant gave evidence[4], as did her two passengers Ms Jennifer Remete[5] and Ms Joanne Bonner.[6]
[1]    T24-294, 463-465.
[2]    T478-500.
[3]    T561-578.
[4]    T581-621.
[5]    T655-670.
[6]    T743-753.
The plaintiff is a 57 year old man. He gave evidence that he had ridden motorcycles since he was 17 years old, and on the day in question was riding a 1050cc Triumph Sprint motorcycle which he had owned for about 7 months. His then partner Ms Shaan Sym Choon was a pillion passenger. He gave evidence that the weather conditions were clear and warm, and that he was familiar with the location.
The plaintiff said that there were two lanes for each direction of traffic at the point of impact. He said that while the left lane was also a parking lane occupied by parked cars there was on his estimation a 1.2 to 1.5 metre space between the parked cars and the white lane dividing line, which was sufficient to safely drive his motorcycle along. The plaintiff said his recollection of the accident was ‘very patchy’. He said that he thought the accident was at about 1pm, although he now accepts it must have been about 3pm. He said he could remember travelling at about 40-50 kilometres per hour north along Frome Road in the left hand lane ‘at least a metre from the white line’. He could only recall one other vehicle on the road, it was in the adjacent lane travelling at about the same speed as he was. The plaintiff said he had a recollection of that car moving rapidly towards him, and of thinking he needed to do something, but had no recollection of any impact involving his motorcycle. The plaintiff said he wasn’t sure whether he recalled it or had been told it, but he thought his body was level to the rear passenger door of the vehicle when he saw that vehicle moving rapidly towards him. Whilst he said he could not recall cars parked in the left lane at that point, he said they were obviously there as he knew he only had ‘that gap’ to ride in. The next thing he recalled was lying on the ground screaming, and of someone saying to him they were sorry and that they had done it to him. He had no recollection of police or ambulance officers attending, or of being taken to or admitted to the RAH.[7]
[7] T37-47.
In cross examination[8] the plaintiff agreed his motorcycle was powerful, and the first new bike he had purchased. He agreed that motorists frequently did not see motorcyclists on the road but that he rode defensively and that he was wearing all the right gear on the day in question. He agreed that riding in the left lane next to parked cars you needed to look out for opening car doors, and also that there were a number of entrances to the university along the road to his left that one should watch out for. He agreed there would have only been about 250-300mm between his handlebars and the line dividing the lanes for northbound traffic. He said he was ‘nearly 100 per cent sure’ that the other vehicle did not decelerate before it hit him. He said it was ‘nearly impossible’ that the car decelerated from 30-40 km/h to 10 or 20km/ before it moved to the left ‘because if it was travelling beside me at a similar speed and if it had braked 10 km/h I would be way in front of it’.[9] To the proposition that he may have accelerated to try and get past the car he said ‘I would suggest that that’s not the likely outcome’, as, although he could not remember, his reaction would have been to brake. He agreed that he had originally thought the accident happened in another way, however he had changed his view. He said:[10]
Q.So what I’m wondering is, what was your initial understanding of the circumstances of the accident.
A.An ambulance officer visited me, and I’m not sure when this is, before the police visited me, and said what he thought happened, so I took that to be what happened, and when officer Hoy visited me and showed me the photos and explained another scenario, then I had to drop the original scenario and adopt his, but it also had to make sense to me with what injuries I had.
[8] T162-183 re the accident itself.
[9] T176.
[10] T180.
No evidence was tendered as to what the plaintiff originally thought or said concerning the circumstances of the accident, the plaintiff saying he was ‘very vague on that’, however the plaintiff appeared to be referencing at least to some extent events at and subsequent the initial impact with the defendant’s car, which he did not remember. He agreed that rather than travelling in the available space left by parked cars in the left lane it would have been open to him to decelerate and move into the right hand lane and travel behind the defendant. He agreed that the driver of the vehicle was obviously unaware of where he was, and agreed that he did not consider whether the defendant might be looking for a park. He maintained that it was safe to drive where he did.[11]
[11] T181-183.
My initial impression of the plaintiff was that he was honestly trying to recount events, but that he had a very poor actual memory of them, unsurprisingly given the trauma of the accident, and that there were significant elements of reconstruction of what he thought would have happened or must have happened in what he said. In that respect, I cannot exclude the possibility that the plaintiff’s subjective recall may have been significantly affected by him taking what the ambulance officer and the police officer seemingly told him happened, as what happened.
I have some concerns about the role of the police officer in the investigation of this matter, both in his attendance at the hospital to “explain... another scenario” to the plaintiff which apparently the plaintiff adopted, and in, as I will discuss later, refusing to take statements from the defendant at the scene and refusing both at the scene and after the event, despite a direct request from the defendant, to take statements from her two eye-witnesses.
Mr Thandi was a passenger in a car driving along behind the plaintiff and the defendant. Mr Thandi gave evidence[12] that he was a very experienced driver himself, from his early days in the Indian Army and through his long experience as a taxi driver in Australia. He initially said that there were three northbound lanes where the events occurred and drew a tendered diagram to that effect, two for traffic to travel along and one for parking. That was plainly wrong, as is apparent from the photographs and all other witnesses. He said the accident occurred 25 metres from North terrace, which again on all the evidence was plainly wrong. He said he saw the defendant’s car in front of him travelling close to the left lane, with the plaintiff’s motorcycle about a metre from it. He said they were travelling, he felt, at the same speed, at about 45km/h. He said he believed the car found a parking space and all of a sudden veered to the left. He said he did not see any brake light or indicator at any time.
[12] T478-500.
A number of aspects of Mr Thandi’s evidence gave cause for immediate concern. Apart from being wrong about such basic issues of how many marked lanes there were and where the accident actually happened, he gave much of his evidence in a jumbled and confused way, and I had the strong impression at times that he was drawing no distinction between what he saw and what he assumed or had heard or thought must have happened.
A number of matters raised with him in cross examination added to, rather than diminished, the court’s concerns about the accuracy and reliability of Mr Thandi’s evidence. For example, he said that despite the presence of parked cars in the left lane, other cars could have safely driven along in that lane, and that the defendant was on Frome Road South of North Terrace rather than turned right from North Terrace into Frome Road. The first of these statements is impossible, and the second contradicted by a number of other credible witnesses. My initial impression of Mr Thandi was that whilst honest, he had a very poor and inaccurate picture of the accident, and I had the distinct impression that the line between what he actually saw and what he assumed after the event must have happened was irretrievably blurred. In all, my initial impression was that he was a very poor witness.
Ms Tieri was a pedestrian walking south along the western footpath of Frome Road. She said she first saw the cars coming towards her some 200-300 metres away. Then she said she first saw them about two car lengths away, then she said she couldn’t say how far away it was. She said she saw the plaintiff’s car in the middle of the right lane. She described it in the following terms;[13]
Q. Yes, tell me what happened then.
A.Then I see the car. The car is coming towards me. No-one is speeding. It’s coming down normal speed. The motorbike, I notice, is coming. It’s at the back of the car coming along as well in the left side of the lane because it was able to do that. Then I noticed the car in the right lane start to veer and slow and knew what she was doing. She was decelerating and shifting at the same time, so then she straddled the lane. That’s what I am trying to say.
[13] T566.
Ms Tieri went on to say that when she first saw the plaintiff and the defendant she thought the motorcycle was about half a metre behind the car. She said she thought they were going at about the same speed but that she couldn’t be sure, and that any estimate of speed would only be a guess, although they seemed to be travelling within the speed limit.[14] Shortly after she continued:[15]
A.Okay, I could – I could see what was about to happen and it appeared to me to be all in slow motion although it happened very quickly. But she – it wasn’t like a sudden turning it was – it was gradual but quick – the two don’t go together. She – I could see she moved without having thought about what she was doing because her focus was – this is me assuming again – but, I could guess that she was focussed on the car park and so although it wasn’t a sudden jerk of a movement it was quick enough to veer to one side.
Q.And what happened then.
A.Then – I could see what was about to happen and I tried to yell to warn the cyclist and the driver because I could see what was about to happen. The cyclist was just minding his own business, going quite nicely and then as the car veered in his way he clipped the window with the bike – the bike – car clipped the bike, whichever, and he tried to correct because it took him off course and he tried to correct and he couldn’t correct and went straight into the back of the parked car which I was standing near, so that is what happened.
[14] T566-7.
[15] T568.
Ms Tieri said the initial contact was with the side mirror, and that she did not recollect seeing any indication by the car. She said that while the car changed speed prior to the impact the bike had not. She did not hear anything as she was listening to earphones. In cross examination she did not disagree with the proposition that the car was doing 30-40 km/h, then slowed, then moved left. She said the bike did not slow, so it closed the gap came alongside and hit the car as it veered left. Ms Tieri agreed that she had spoken to an investigator on 30 October 2008 and told him ‘… the car had slowed down I’d say he’d probably – when he noticed the car slowing down picked up to 50 to continue the other side of the car’, agreeing that her memory had probably been better at that time than at trial. She agreed there were a number of entry and exit points to the universities on the western side of Frome Road.
My provisional impression of Ms Tieri was of an honest witness doing her best to recall events, with a reasonable recall of those events.
Neither the plaintiff’s partner and pillion passenger Ms Hallion, nor Mrs Thandi were called to give evidence. Investigating police officer Hoy was not called either.
The police file was tendered.[16] Both drivers were tested and no alcohol or drugs were detected. The ‘Police Incident Report’ contained within the file indicates that neither the plaintiff nor his pillion passenger remembered anything about the accident. The file indicates that Mr and Mrs Thandi’s niece was also in their following vehicle. She was also not called to give evidence.
[16] Exhibit P20.
The police file contains a statement from Nicholas Fisher, also not called, who said he was driving along behind the Thandi family and saw the accident. Whilst counsel have both asked me in different respects to have regard to Mr Fisher’s statement, and I have, no explanation for he not being called was given, and there are certain unsatisfactory aspects to what he said. For example, he says that both he and the defendant straddled the white line for some 200 metres prior to the accident, which on everybody else’s evidence the defendant did not do. Further, he said that despite the presence of Mr Thandi’s car between him and the defendant’s car and that he was in the right driver’s seat of his own car, he could see the left brake and indicator lights of the defendant’s car which, I find, is inherently unlikely. In all the circumstances and in the absence of him being called as a witness to explain his observations I find I can place little weight on his statement.
The photographs[17] and recorded police observations establish that the defendant’s car had a dent at the front of the rear passenger side door hinge, scrape marks along the left side of the vehicle, and that the left rear view mirror had been sheared off. A police officer’s statement on the file is to the effect that the damage is consistent with what the officer describes as a ‘sideswipe type collision’. That is plainly the case, and suggests that at least at the point of impact the motorcycle was travelling significantly faster than the car.
[17] Exhibit P7.

The file contains a police interview with the defendant, who, by and large, said what she said at trial. She said she was slowing, looking for a park, checked her central rear view mirror, indicated, moved left and was struck by the motorcycle. She told police that as she was travelling slowly, with traffic backing up behind her, looking for a park, that the motorcycle rider must have got frustrated and tried to accelerate around her and that the police should speak to her two witnesses. For some reason, the police officer declined to do so. It is apparent from his comments during the record of interview that he did not seem to regard himself as under any obligation to gather all available apparently relevant evidence.
The defendant Ms Eicas gave evidence. She said that about 3pm on the day she was driving down Frome Road with her two friends looking for a park so that they could visit the Art Gallery. She had turned right at the lights onto Frome Road from North Terrace. She said cars were parked all along the western side of Frome Road. As she proceeded down the first part of Frome Road she saw a gap up ahead, so she slowed and put her left hand indicator on. She went through the first and then the second pedestrian crossing, and saw the gap in fact was where there was a gate into the university so was not a legal park. The plaintiff said that she therefore turned her indicator off and looked further up the road, where she saw another gap in the parked cars which she thought was a parking space. On seeing that gap she said she moved to the right of the lane initially to get a better view of the gap, looked in her right mirror and her rear view mirror, but then saw that the gap was large and that therefore she would be able to drive in forward rather than parallel park. She said she put her indicator back on. At that stage she was going about 20km/h. She said she looked to her left, but had no expectation that there would be any vehicles travelling in the left lane. She did not look in her left rear view mirror. She said that as she approached the parking space, she would have slowed, then there was a bump and then a big smash in front of her. She said she saw a person flip up in the air, she stopped her vehicle, and got out to find that a man was lying in front of her car. She ran to him to assist. She told the man she was sorry and tried to help him.
The defendant became emotional and upset as she described the accident both in evidence and cross examination. In cross examination she explained she did not expect a motorcycle to be in the left lane, as with cars parked in it she did not think the lane was wide enough for motorcycles to safely use and if anything, would be used by bicycles from the University as a bicycle lane. She said that while she couldn’t be categorical she thought she was still in her lane when she heard the bump. She estimated her car stopped about 10 metres from the point of the first bump, after she veered a little back to the right. She said she had a clear memory of everything up to the initial thump but that there were gaps in her memory after that. My provisional impression of the defendant was of an honest witness doing her best to recall events, with quite a good and detailed recollection of events up until the initial impact.
Ms Remete was a passenger in the front passenger seat of the defendant’s car at the time of the accident. She gave evidence that they turned right onto Frome Road from North Terrace, and were then driving slowly looking for a park so they could visit the Art Gallery. There was some conversation in the car and she heard the indicator being put on. Then she was aware the car was moving to the left to facilitate parking, then she saw something in her peripheral vision moving very rapidly past her window. She turned to look and saw a flash of blue past the window. She said the defendant then stopped the car and they got out. As soon as she got out she could hear the bike rider screaming, so she went straight over to him, then went to help the pillion passenger.
At some stage she and the other passenger Ms Bonner returned to the car. The engine was still running, and she saw Ms Bonner turn the indicator off, stop the engine and take the keys out. She said that both she and Ms Bonner came forward and offered to give the attending police officer statements, but that the police officer did not want to take statements from them, indicating ‘that won’t be necessary’.
In cross examination Ms Remete was taken through events again, and did not disagree with the proposition put by counsel that before the defendant started to manoeuvre towards the park she was travelling at about 45 km/h, and when the defendant’s vehicle started the manoeuvre it reduced speed. She said the speed reduced gradually from considerably before the impact, the order of events being ‘indicator, speed reducing, moving (opposite)[18] side of road and the impact was considerably later than that’. She said she did recall the blue flash to her left clipping the rear view mirror as it went past which she thought was the first point of collision. She denied that the speed of their car could have been 40 to 45 km/h at the point of impact. She said they had moved perhaps a metre to the left when the impact occurred. She said she heard the bike as it went by as well. My provisional impression of Ms Remete was also of an honest witness doing her best to recall events, with quite a good and detailed recollection of the events she recounted. She was a careful, considered and softly spoken witness who presented very well.
[18] ‘Opposite’ is in my recollection a typographical error in the transcript, and should read ‘over to the’ or ‘to the’. There was never any suggestion any car moved to the opposite side of the road, indeed such movement was impossible in light of the raised concrete median strip.
Ms Bonner was the other passenger in the defendant’s car. She remembered the events of Sunday 7 September 2008 as well. She was sitting in the rear left hand passenger seat. She gave evidence that the defendant was driving the car in the right lane north along Frome Road. She said there were quite a lot of vehicles parked in the left hand lane on the western side of Frome Road. She said the defendant was driving quite slowly as she approached the area where the accident occurred as they were looking for a park. She recalled some conversation and she heard the indicator. Then the vehicle started to move to the left. She said just to her left she heard a really loud cracking sound and a roar, like the engine of a motorbike. She called out ‘Edite’ to the defendant because she knew something was next to them and the defendant pulled to the right and almost immediately stopped. She got out of the car and went to the man on the motorbike who was now lying on the side of the road.
Ms Bonner said that at some stage she became aware that quite a big crowd was gathering and so she went back to the car as all their handbags were there. She said that when she got back to the car she saw the indicator was still on so she turned that off, took the keys out and locked the car. She said they waited to give statements to the police, but when they asked the police officer he said he did not want to speak to them. Ms Bonner was also cross examined. My provisional impression of Ms Bonner was of an honest witness with a very good and detailed recall of the events she recounted, who also presented very well.
Consideration of the evidence about the accident
I have carefully considered all the evidence, and closely considered all counsel’s submissions in relation to it. All witnesses were in my opinion honestly trying to recall and relate the events of 7 September 2008.
In my view the plaintiff’s recall of events was understandably coloured to a very considerable extent by the trauma of the accident, and by the visits of the ambulance officer and police officer telling him different scenarios which he in turn adopted, so there is a question as to its accuracy especially in relation to matters of detail. Mr Thandi was a very poor witness who, notwithstanding his long driving experience, gave evidence in a jumbled and confused manner, was patently wrong about basic facts, and upon who in the ultimate analysis the court can place no reliance whatsoever, particularly if contradicted by any other witness in the case. Ms Tieri was quite a good witness, whose presentation was good and had quite a good recall of events. She was walking and listening to headphones but had quite a good view of the accident. She was an ostensibly credible and reliable witness.
The defendant was also a good witness, who despite being still shocked and upset by the accident, had a very good recall of the events. She presented well, and was an ostensibly credible and reliable witness. Both Ms Remete and Ms Bonner gave evidence in a clear, measured and considered way. They had a good recall of events. I could detect no indication that the defendant had colluded with them, or they with each other, and their evidence was clear and impressive. They were both excellent witnesses.
I have concerns about the objectivity, competence and completeness of the police investigation in this matter, so whilst I have had regard to everything contained in the police file including statements given by the plaintiff and the witnesses no doubt drawn up by the investigating police officer, in my view the oral evidence given on oath by the witnesses is likely to more objectively and reliably reflect the events of the accident.
Some other observations must also be made. I find that the plaintiff legally came through the lights at the intersection of North Terrace after they had changed to allow him to do so, and axiomatically therefore some time after the defendant and her passengers had legally turned right from North Terrace. Therefore, at the point when the plaintiff entered Frome Road north of North Terrace, the defendant must already have been some distance ahead. As the plaintiff, only some 200 metres later, was only a metre or so from the left rear corner of the defendant’s vehicle he must have caught up, and must therefore have been driving faster than the defendant over that 200 metre distance.
Further, the damage to the left side of the defendant’s car from the ‘glancing’ blow struck by the plaintiff’s motorcycle is significant, and extends along the side of it from a dent to the rear left passenger door, a scrape all along the front left passenger door, to shearing off the front left rear view mirror. This also suggests, and I find, that the motorcycle was travelling materially faster at the point of impact.
These matters support the defendant and her witnesses’ version of events that the defendant was slowing, and had slowed considerably at the point of impact whereas the plaintiff had not slowed.
Whilst I accept that the plaintiff and Ms Tieri are being honest when they say they did not see or do not recall the defendant indicating, I prefer and accept the defendant and her two witnesses’ evidence that the defendant did indicate.
As well as having carefully considered the totality of the evidence called and tendered, I have had regard to all the submissions of counsel, the provisions of the Civil Liability Act 1936 (“the Act”) and the Australian Road Rules applicable at the time, and particularly to all the materials and authorities to which counsel have referred.
Overall, I find on the balance of probabilities that the accident occurred in the following way.
Conclusion about how the accident happened and the parties’ respective responsibility and liability for it
At about 3pm the defendant and her two passengers turned right on the green arrow from North Terrace into Frome Road. The lights changed and the defendant and other traffic crossed North Terrace and drove down Frome Road. The defendant was travelling at between 30-45kph, looking for a park.
The other traffic coming across North Terrace, including the plaintiff, travelled at about 50kph, with the plaintiff likely catching up with the defendant at or shortly before the point of impact. The plaintiff was travelling in the right hand lane. The left hand lane was full of parked cars, however there was a gap of perhaps 1.2-1.5 metres between those cars and the dotted white line dividing that lane from the right hand lane. The plaintiff elected to ride his motorcycle at about 50kph along the gap in the left lane.
At the point where the plaintiff caught up to within a metre or so of the defendant the defendant saw a vacant parking spot about 2-3 car lengths ahead, looked to her left hand side and also in her rear and right mirrors. She did not look in her left mirror and therefore did not see the plaintiff who was to her left rear. She then indicated and moments later moved left across the lane dividing line. I find that she was braking and decelerating as she indicated and then moved left. The plaintiff did not see the defendant’s indicators and when he noticed the defendant’s car move to the left into his path had insufficient time to evade it, and collided with it.
At the point of impact the plaintiff was still doing about 50 kph but the defendant had slowed from 30-45 kph to 20-30 kph, resulting in the plaintiff colliding initially with the defendant’s rear passenger door, then scraping along the defendant’s front passenger door, then shearing off the defendant’s left rear vision mirror located at the front of the defendant’s front passenger door. Due to that impact the plaintiff lost control of his motorcycle and collided with the back of the car parked at the front of the parking place the defendant had been heading towards.
I find that the defendant was negligent in failing to check her left mirror before braking and changing lanes, for failing to consider whether there might be a motorcycle about to pass her in the gap left by parked cars in the left lane and for failing to ensure that the gap in the left lane immediately behind her was unoccupied before moving left and decelerating. The defendant should have been more aware of the ‘blind spot’ where the plaintiff in fact was.
I find that the plaintiff was contributorily negligent in riding his motorcycle in the gap left in the left lane at 50kph up to and in such close proximity to the defendant, the adjacent parked cars, and the various entrances to the universities on the Western side of Frome Road. Whilst not illegal, riding in that gap at the edge of the parking lane unnecessarily created risks from opening car doors, vehicles’ egress from the various University entrances, and from cars just like the defendant’s, negotiating into or out of parking spaces or turning left into the University entrances. Riding up to within a metre of the defendant’s back corner in that gap left no room for error should such car decide to park or turn into any of the university entrances. The plaintiff should have been more aware that he may have been in a ‘blind spot’ to the left rear of the defendant and that motorists would not necessarily assume that anyone would be travelling where he was next to a row of parked cars, and should have driven more defensively than he did, either by leaving more distance between himself and the defendant or travelling in the one clear lane for northbound travel behind the defendant in the right hand lane.
The defendant in changing lanes without checking her left hand mirror was however primarily responsible for the accident.
On the evidence, I apportion responsibility for the accident 80 percent to the defendant, and 20 percent to the plaintiff.
Damages – the issues
There is no doubt the plaintiff was seriously injured in the accident that took place on 7 September 2008.
He was hospitalised for a considerable period and has undertaken considerable rehabilitation. He still suffers as a result of the injuries although the treating doctors all recommend a further operation that is hoped will assist the plaintiff considerably. He still receives various kinds of therapy. All agree it is likely he will have some ongoing pain and disability whether or not he has the operation.
The plaintiff submits his injuries are catastrophic, that he endured and continues to have significant pain, suffering and loss and that he has no future earning capacity. The defendant agrees that the plaintiff has suffered very serious injuries but submits that he has recovered his enjoyment of life to a material extent and has some earning capacity for example in a self-employed role.
The parties agree that the plaintiff is entitled to compensation for his non-economic loss,[19] past and future economic loss, gratuitous services he has received from his family, future care, assistance and medical treatment, future surgery and medication, special damages and interest. The parties disagree on how much should be allowed in each of these categories of loss.
[19] Defined as pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement, Section 3 of the Civil Liability Act, as assessed on a 1-60 scale per section 52(2) of that Act.
General observations and findings re the evidence of loss and damage
I accept all the qualifications and expertise of all medical witnesses called and from whom reports, records and notes were tendered. I also accept the medical opinions and findings of all the medical witnesses, with one qualification where such findings are predominantly reliant on an acceptance of the history and symptomatology given by the plaintiff.
Where the findings are so reliant, by and large I do still accept them, but with the qualification that the plaintiff’s evidence as to his functional ability was challenged by the defendant and the defence submitted that the plaintiff’s descriptions of his functional ability fell short of his actual ability, particularly in terms of the duration of activity he was able to comfortably perform. Therefore an acceptance of the medical findings based on the plaintiff’s history is dependent on the court accepting the accuracy of that history in light of the evidence on that topic at trial.
In this respect the defendant pointed to evidence of other witnesses, the evidence of the defendant’s ability to work long hours for periods since the accident and the date of trial, and a suggested disparity between what the defendant said in evidence he had done on the weekend a few days prior to giving evidence and what subsequently disclosed film in fact showed him doing on that weekend.
The plaintiff was asked in evidence what he had been able to do on the Saturday prior to giving evidence and he replied in effect that he had only been able to go to the market for half an hour, then bake cookies later in the day. He then agreed when shown video taken that day that he had been out for some three and a half continuous hours at two markets and McLaren Vale, before returning home to later do the cooking. He agreed that this was after an arduous week of trips into town and lengthy sessions with his lawyers preparing for trial. I accept his evidence that these activities did cause him discomfort requiring rest, but I find that those admitted activities indicate an ability to pursue activity for some several hours over the course of a day involving driving, walking around, carrying two shopping bags and placing them in and out of a car, that is somewhat greater than as described by him in evidence in chief and to some medical and functional assessment practitioners.
Whilst I find the plaintiff was an honest witness who has been genuinely injured and deeply affected by those injuries, I find that the plaintiff may have unconsciously over recounted some of his functional limitations, or in an effort to convey his real inabilities been more absolute about them than an objective assessment would be.
Having closely considered those matters, I accept the evidence of other witnesses about the plaintiff’s functional ability, and his activities as indicated by the film taken the weekend before trial, is likely to be more reliable, in an objective sense, than the plaintiff.

I now turn to the categories of damages claimed by the plaintiff.
I take into account all the evidence given, which was extensive. For brevity I set out only a very brief overview, however I have had regard to it all.
The plaintiff
The plaintiff is a 57 year old man, born and raised in South Australia. He completed year 11 then worked in various unskilled jobs over time. He undertook a toy making course then after a period set up a toy making business which operated for several years. It made little money. He married in 1977 and after renting for a time built a house which was completed in around 1985.
The plaintiff worked in the building industry in various capacities, obtaining a restricted carpenter’s licence in 1986, subsequently an unrestricted carpenter’s licence, and eventually obtaining a builder’s licence in the 1990’s. He divorced in 2002. He worked building houses and otherwise in the building industry until the time of the accident in 2008.[20]
[20] Photos of various houses the plaintiff built were tendered as P8 and P9.
In 2005 he incorporated a company, Peter Dawson Constructions Pty Ltd through which he continued to operate his building business. In 2006 he incorporated another business, Peter Dawson Ice creams. In the 12 months from the end of 2006 the plaintiff purchased two Cold Rock Ice Cream franchises which he then began to operate as well. The plaintiff said that by 2007 he would have been working close to 80 hours a week in his various businesses.
The plaintiff’s tax returns and Peter Dawson Constructions’ tax returns were tendered. The plaintiff’s taxable income for the tax years 2004-2008 prior to the accident was as follows:
·2004 - $35,512
·2005 - $54,781
·2006 - $103,939
·2007 - $42,302
·2008 - $58,270
The plaintiff’s taxable income for the three tax years subsequent to the 7 September 2008 accident was as follows:
·2009 - $6200
·2010 - $9089 (rental property) loss
·2011 - $24,108 (after current and carried forward rental property losses of $15,218)
Peter Dawson Constructions’ taxable income for the years 2005-2012 was as follows:
·2005 - $11,164
·2006 - $18,250
·2007 - $25,370
·2008 - $7
·2009 - $4394             loss
·2010 - $4267             (but zero after offsetting prior year tax loss)
·2011 - $68,814          loss
·2012 - $1800             loss
At the time of the accident the plaintiff was in a relationship with Ms Sym Choon.
The plaintiff gave evidence that the accident caused him a great deal of pain. He recalls lying on the ground at the scene of the accident and next recalls being in hospital. He described serious pain, difficulties, embarrassment and discomfort throughout his hospital stay. In particular, urinating and defecating were initially attended by serious problems and were very painful and embarrassing. There were problems sleeping and difficulties with many other aspects of his time in hospital. He had to wear an external fixation device for his injuries for an extended period.[21] He was discharged to College Grove for rehabilitation, still wearing the external fixation device. He thought he was discharged and returned home in early December 2008. He underwent further periods of rehabilitation, being readmitted to College Grove in January 2009, and was readmitted to the RAH for further surgery.
[21] Depicted in photos tendered as P6.
The plaintiff gave evidence that his children had to initially take on running his businesses and performing and assisting with domestic tasks. After February/March 2009 he was able to use the wheelchair less, progressing to crutches, then to 2 walking sticks, and then one walking stick. His son Joel would take him to medical appointments, which arrangement continued over the next three years.
The plaintiff described significant pain and difficulty during the first half of 2009, including absence of erectile function. During March-June 2009 he was able to undertake business paperwork. Gradually over time some sexual activity returned with different treatments. Unfortunately, the relationship with Ms Sym Choon ended between 18 months and two years after the accident.
The plaintiff met his current wife in March 2012 and married her in May 2012. The relationship is going well.
He described the restrictions in his recreational activities, including for example how he could no longer undertake activities he enjoyed such as cycling, motorcycling or dancing.
The plaintiff described how he could not take any active construction or carpentering role in the building business, although he did return to his businesses in June 2009. He worked up to 60 hours a week. He had to utilise more subcontractors, and overall described how he would be very tired and unable to contribute the time and activity he had previously done in either the building or the ice cream franchise businesses. Income therefore decreased and expenses and debt mounted. He decided he could not continue with the building work and let his building licence expire, finishing up with the building business at the end of 2010. He continued with the North Adelaide Cold Rock franchise, hoping to develop it to a stage whereby he could sell it for a profit, incorporating an additional deserts business he had initiated. He said he worked for about 40 hours a week in that business from mid-2010 to mid-2012, comprising about 20 hours a week at the shop and 20 hours at home on the paperwork.[22] The plaintiff said that by June 2012 he was finding it too hard and decided to close it.[23]
[22] T138.
[23] T137.
In cross examination the plaintiff admitted that neither Cold Rock franchise made any money before his accident, and that they did not even generate a wage for him. He agreed that he borrowed significant amounts to acquire and set up the franchises although the Cold Rock disclosure statement recommended against borrowing substantial sums. The plaintiff indicated that new franchisors took over the Cold Rock business in 2009 and caused him significant problems with a range of bad business practices and actions which impacted on his profitability, and eventually obtained judgement against him in the Melbourne magistrates’ court, which he was unable to set aside. He agreed the last store was closed down for non-payment of rent. He denied that the Cold Rock businesses were likely to fail anyway, regardless of the accident.
The plaintiff said he had done no work since 2012 except unpaid work for a community group called “Adjust Earth” for a little over a year prior to trial. He said he went bankrupt in early 2013.
The plaintiff said that over time because he had to lie down and rest so often, he developed shoulder and related pain. He described the ongoing pain related to his original injuries, the level of which was to some extent dependent on the activities he undertook.
He described how his family had had to help him substantially since the accident, although less and less over time as his injuries improved and he was able to do more things himself. He gave evidence that he is still restricted in what he can do at home and around the house.
In cross examination he agreed he can perform many activities, such as cooking, lighter domestic tasks, washing the dishes and loading the washing machine and doing the shopping. He said he could only perform limited tasks in the garden. He agreed that after an initial 3 months of his son driving him, he resumed driving. He drove to and from court, and said that he could drive comfortably for an hour. When he and his wife go out, say for drives, he is mainly the driver.
I refer to without repeating earlier observations that the plaintiff was shown video of his activities in the week and weekend prior to trial. That video showed the plaintiff doing more and for longer than he had said at trial he could do. In particular it showed him actively out and about for an extended period, capable of lifting items and carrying bags, and for example not walking with the limp he said he had if he walked for more than 20 minutes. Having regard to the totality of his cross examination, regrettably the court cannot not fully accept his explanations that he had earlier in his evidence (before the film was shown) forgotten aspects of what he had done only a few days earlier, particularly on the Saturday immediately prior to trial.
I have also had regard to the detail of the plaintiff’s injuries, symptoms and treatment as recounted in all the tendered medical reports and records, and in the oral medical and other evidence called. Again, the following is only the briefest of outline. Again, I have had regard to all the evidence called.
Other evidence about the plaintiff
The plaintiff’s son Joel Dawson gave evidence. He is a carpenter and had worked closely with the plaintiff for significant periods and also with a Mr Forsyth who I will mention shortly. He said that after the plaintiff bought into Cold Rock in 2006 he spent less time in the building business, as he was running both businesses. The plaintiff’s son also described events after the accident. While the plaintiff was in hospital and then rehab the plaintiff’s son would visit the Cold Rock businesses and also bring in mail and bills for his father to attend to. He helped his father during his time in the wheelchair and as he progressed to crutches, walking frame and then walking stick. He said he would take his father to 7-9 appointments a week up until the plaintiff could drive again in April 2009. When his father first returned home the plaintiff’s son did all the housework, until a cleaner was employed. He described how the plaintiff was able to gradually return to tasks like cooking and other activities, and how the help he needed to give the plaintiff reduced over time. Over the period June 2009 to May 2012 he would mainly assist with shopping once week, do a little gardening and some periodic maintenance that for example involved heights such as gutters and the like. He said he stopped providing much assistance in May 2012 when the Plaintiff remarried. The plaintiff’s son was a straightforward witness who I by and large accept.
The plaintiff’s daughter Tulani Kertes gave evidence. She described how the plaintiff was a good father, a good person, was well liked, and assisted her in a range of ways, particularly prior to the accident. She described how the accident had affected him. She helped him over the month immediately after the accident, and also described how without her father’s supervision the Cold Rock businesses did not appear to be being run well by the staff. She was very supportive of her father, although some of her evidence as to his present incapacities, such as her evidence that he has to consider whether there is a disabled park wherever he goes and is incapable of walking the 200 metres to the beach[24] are not consistent with the video of the plaintiff’s activities shown to the court, and is I find not reliable.
[24] T554 and T559.
A long-time friend and work colleague Mr Forsyth gave evidence. At the date of trial he had known the plaintiff for the best part of 21 years. He said the plaintiff was a good builder and worker in a range of ways, and that they worked together on jobs for 6 years, ending 6 to 7 years prior to trial. He also visited the plaintiff after the accident, recounting the changes he saw in the plaintiff. He told the court that the plaintiff suffered dejection, anger and depression, although the plaintiff is resilient and has improved. Mr Forsyth was a straightforward witness who I accept.
Another friend, Mr Roper, gave evidence. He had known the plaintiff since 2004. The plaintiff built his house in 2005, did a good job, and they had become friends. He had also seen the plaintiff since the accident. He said he had been impressed by the plaintiff’s emotional state, and his positiveness. Mr Roper was a straightforward witness who I accept.
Medical evidence about the plaintiff
Dr Pohl was the treating orthopaedic surgeon. He reported that the attending ambulance crew had noted distress and severe pain and that there had been no initial loss of consciousness. The plaintiff was admitted to the RAH. He was discharged to a rehabilitation facility on 13 November 2008 but readmitted on 24 November for further treatment prior to discharge home the following day.
Dr Pohl summarised the plaintiff’s injuries, treatment and condition in his final report of October 2013:[25]
Mr Dawson suffered multiple injuries in the subject accident including an “open book” pelvic ring disruption comprising pubic diastasis and fractures of the superior and inferior pubic rami bilaterally. The superior pubic rami fractures extended to involve the acetabula bilaterally. There was widening of the sacroiliac joints, more apparent on the right. He suffered pelvic bleeding from multiple left internal iliac artery branches, not amenable to embolization. He suffered an associated partial rupture of the membranous urethra and a defect on the right side of the bladder wall. His progress was complicated by a right middle lobe pulmonary artery embolus. He was treated with intravenous Heparin initially and an inferior vena cava filter was inserted. He underwent external fixation of his pelvis on 12 September 2008 when a cystoscopy was also performed, demonstrating a partial rupture of the membranous urethra and a defect on the left side of the bladder wall. His post-operative progress was complicated by the development of a pulmonary embolus. Mr Dawson’s inferior vena cava was removed on 20 October 2008. On the same day he developed life threatening haemorrhage with frank haematuria due to bleeding from a right vesicle artery.
Mr Dawson’s external fixator was removed on 24 December 2008.
Mr Dawson suffered an avulsion of his right rectus abdominis muscle from the pubis. The muscle remains currently retracted superiorly.
As a result of Mr Dawson’s current symptoms and his need to rest or recline, he has developed secondary shoulder subachromial bursitis. His progress has also been complicated by the development of low back pain, and general fatigue. He is now left with current residual symptoms of pain between the shoulder blades and bilateral shoulder pain; pain in the ischial tuberosity area and perineal area; low back pain “shooting” pain in the left buttock sporadically and general fatigue, as detailed in the main body of my report, above. He has the additional symptoms of urinary dribbling and sexual dysfunction, as described in my previous report dated 26 June 2012. As a result of his current residual symptoms he described restrictions to his working capacity, in his recreational activities, in his activities of daily living, in his sleeping and emotionally, as detailed in the main body of my report, above.
Clinical examination revealed a restricted range of right shoulder motion, a restricted range of back motion, tenderness over the symphysis pubis and pelvic instability with associated tenderness over the symphysis pubis, and pain on stressing the right sacroiliac joint. There was decreased power of straight leg raising and adduction on the right.
[25] Report of Dr Pohl, 5 October 2013, at page 28 of P1.
In the same October 2013 report, Dr Pohl adhered to his earlier June 2012 opinion that the plaintiff would benefit from further surgery. In his June 2012 report[26] he had stated:
I believe that your client would benefit from further surgery in a multidisciplinary setting. That would include open reduction of his pubis symphysis deformity, augmented by bone grafting, utilising bone harvested from the iliac crest. His right rectus abdominis muscle has been avulsed from the pubis and is retracted superiorly. He would benefit from an attempt at drawing the rectus abdominis inferiorly. I anticipate that the gap between the muscle and the pubic bone will not be fully corrected and that a supplementary mesh graft would be required to augment the muscular attachment. An improvement in the biometrics of his anterior abdominal wall may alleviate some of the symptoms he suffers in the abdomen with various physical activities. Further, under the same anaesthetic your client would benefit from surgery to his bladder to correct the residual recurrent urinary tract infection he experiences. That surgical procedure would be performed by Mr James Aspinall, Urologist.
[26] Report dated 26 June 2012, at page 19 of P1.
As at the date of trial the plaintiff had declined to undertake the recommended surgical procedures, indicating he may do so at some stage in the future.
Dr Aspinal a urologist provided reports of several reviews of the plaintiff that he conducted, summarising the plaintiff’s post hospital discharge urological issues. In his first report dated July 2010 he recorded the plaintiff’s complaint of certain sexual difficulties which he had had some success addressing with medication. He noted scars and calcification from his inpatient treatment and ongoing urinary tract infections and difficulties with bladder function. Subsequent reports note some improvement in both sexual function and bladder function over time, and a reduction in urinary tract infections. Dr Aspinal indicates in his July 2012 report that MRI scans had shown that the reason for the plaintiff’s ongoing urinary tract infections was a herniation that Dr Aspinal could remedy with surgery, which he recommends. In his final report of October 2013 Dr Aspinal summarises the plaintiff’s urological condition:
At the present time, Peter suffers from two major side effects in relation to his previous motor vehicle accident; firstly he has lower urinary tract symptoms which lead to recurrent urinary tract infections. He fortunately has now been infection free over the last six months with a change in both his diet and the use of a number of alternative therapies. He does however have quite significant lower urinary tract symptoms including a post-micturition or after urination dribble. His stream is reduced and he gets up twice at night. This unfortunately is exacerbated by his inability to feel his urination, due to significant nerve damage associated with pelvic fracture.
Secondly, he suffers from quite significant erectile dysfunction which necessitates the use of PDE5 inhibitor drugs and at the present time he usually uses Viagra. Unfortunately, this medication does give him a “hangover” type feeling afterwards, a common post-Viagra side effect. He now is only sexually active once a month and despite the use of this medication will still occasionally fail in sexual activity. Not surprisingly, this has caused quite a significant issue in his relationship and affected the spontaneity associated with sexual activity. His urinary symptoms have been greatly increased by a combination of reduced nerve supply to his bladder due to the pelvic fracture as well as the present situation where he has malunion of his symphysis pubis, with an associated projection of his bladder between the two bony ends.
We have planned a multi-disciplinary surgical approach to this with Dr Tony Pohl performing the orthopaedic component and myself, the urological component, with the removal of his bladder from a wedged position within the two bones. This surgery would hopefully reduce his residual urine, reduce the chance of him having urinary tract infections and also improve his urinary flow. At no stage would this surgical procedure have any effect on his erectile dysfunction.
In my opinion his inability to work is related to his orthopaedic and not his urological issues, and as such his urological issues would lead to lifestyle changes such as difficulties with erections and urinary difficulties.
The surgical procedure that I would perform at the time that Dr Pohl is working on his pelvis would be a minor component of his surgery, and I do not believe it will contribute significantly to his rehabilitation which will be mainly related to his orthopaedic recovery. I feel it is imperative that this gentlemen does undergo this surgery, and at the present time he continues to put that off due to financial difficulties. I have again reiterated with him that we need to go ahead and sort this out. However, he is not keen to do so until he knows where he stands legally.

In cross examination the plaintiff said that he had faith in his specialists and after the trial will pursue the orthopaedic and urological surgery recommended.
The plaintiff saw a number of other medical professionals. He was referred by his lawyers to Dr Bastian a rehabilitation consultant specialist who reported in November 2009 and subsequently in numerous reports that the plaintiff had a partial incapacity for work, and commented on and recommended various ongoing treatments. For example, as at November 2010 he expressed the view that the plaintiff had a 7.5% impairment of the whole person for sexual impairment, 5% impairment of the low back and lumbar spine, and 15% of the whole person for pelvic trauma. Dr Bastian agreed with the suggested operation and said that if successful it would significantly reduce the plaintiff’s pain and improve his functional abilities. In cross examination Dr Bastian said that the plaintiff’s escalating fatigue might be a consequence of pressures and stress, and that psychological factors do amplify chronic pain.
The plaintiff was also referred by his lawyers to psychiatrists.
In October 2009 Dr Raeside reported that in his opinion the plaintiff had suffered a chronic adjustment disorder with mixed anxiety and depressed mood, but did not have a post-traumatic stress disorder. He regarded his psychiatric prognosis as good, and that there was a good chance his adjustment disorder would resolve.
In May 2011 a further psychiatrist Dr Davis said that he thought the plaintiff had suffered a major depressive disorder and post traumatic symptoms which were maximal around late 2010 but had settled to some extent such that the plaintiff was at the time of the report more troubled by anxiety than depressive symptoms. Dr Davis said that much of his distress would settle when the plaintiff could find some form of financial solution to his various problems. No psychiatric condition was diagnosed or need for psychiatric treatment recommended.
In his second report of November 2013 Dr Davis noted that the plaintiff’s major depressive disorder and post-traumatic stress disorder had to a large extent resolved. In his opinion however the plaintiff still experienced chronic pain syndrome with a presumed contribution from both physical and psychological factors, with symptoms of a chronic adjustment disorder with mixed emotional features including anxiety, depression, frustration and anger. Dr Davis indicated that much of the anger and frustration was in the context of the legal proceedings and the attitude of the insurer to his case.
In evidence and cross examination Dr Davis said that the plaintiff would continue to experience chronic pain, however the operation would address the pain as would future psychological support. When the case is concluded with the reduced stress and improved mood there would likely be improved pain and improved functioning. He assessed the plaintiff as having strengths and resourcefulness.
The plaintiff consulted a psychologist Mr Tuckfield from January 2010. In March 2011 Mr Tuckfield reported a diagnosis of major depressive disorder and post-traumatic stress disorder as at 20 January 2010. He recounted the plaintiff’s reported symptoms of impaired mobility, debilitating pain, bladder and sexual dysfunction and mental reduction in ‘significant life pleasures’. He noted a prognosis that the plaintiff is ‘an extremely resourceful and resilient individual’, but that he had not yet completed the ‘grieving process’ for the loss of his physical abilities nor his traumatic memories of the crash and his hospitalisation. He assessed a 22% impairment of psychological function.[27] In a further report dated December 2013 Mr Tuckfield reports an improvement in post-traumatic scores, but that he had elevated traumatic stress scores. He predicts an improvement in psychological condition once the litigation concludes.[28]
[27] Report dated 2 March 2011, page 112 of P1.
[28] Report dated 1 December 2013, page 125 of P1.
The plaintiff was referred to an occupational therapist Ms Opperman for an ‘activities of daily living assessment’, which was conducted in January 2010. There was a further, follow-up assessment conducted, this time by another occupational therapist Ms Osborne, in March 2011. Those reports costed the equipment and functions that the writers assessed would or might need to be provided for the plaintiff in the future. The plaintiff was also referred to a rehabilitation physiotherapist Mr Tippett for a ‘functional capacity evaluation’, which was conducted in May 2011. I have regard to the resulting reports, although they each comprise primarily a detailed history from the plaintiff whereby the plaintiff recounts to the writer what he could and could not do, together with some tests and observations. It is also reported in these reports that the plaintiff returned to work in June 2009 and was undertaking full time work at about 60 hours a week by about August 2009, as at January 2010 was working about 40 hours a week in building and also was visiting the two Cold Rock Ice Cream franchises each week, and in May 2011 was working 16 hours a week at the Cold Rock Ice Cream franchises. Each were of the view that the plaintiff was not fit to resume work as a builder or carpenter. Ms Opperman said that the plaintiff had the capacity for up to 38 hours a week of light level work, and that doing that would be both physically and psychologically beneficial for him. Mr Tippett said that the plaintiff could work as a project manager for construction work but would be limited in the amount of time he could spend on site. Mr Tippett was also of the opinion that the plaintiff could work in a full time capacity in an administrative or managerial capacity with appropriately modified office equipment.
The plaintiff was reviewed by a neurosurgeon Mr Carney who provided a report in March 2011. Mr Carney commented generally but indicated that the plaintiff’s primary injuries were outside his area of speciality.
The plaintiff was reviewed by an orthopaedic surgeon Mr Middleton who provided two reports in 2010. Mr Middleton assessed his orthopaedic injuries as resulting in a 30% whole person impairment, concluding that while he was significantly impaired the plaintiff, in Mr Middleton’s opinion, could work full time in a supervisory capacity.
Two brief handwritten reports were tendered from a dentist Mr Jensen to the effect that the plaintiff broke a tooth in the accident and would need a crown for that tooth at a cost of $1200.
In turning now to assessing the plaintiff’s losses and categories of damage, I have had regard to all the evidence, and also in particular the comprehensive and detailed written and oral submissions of counsel. Again, in an attempt and clarity and brevity, I do not set out the evidence nor those arguments, although I have had close regard to them all.
Non-economic loss – pain, suffering and loss of amenity
Section 52 of the Civil Liability Act 1936 (“the Act”) prescribes how non-economic loss is to be assessed.
I find that the plaintiff qualifies for an award of damages as per section 52(1) his life was significantly impaired for a period of at least 7 days and medical expenses of at least the prescribed minimum have been reasonably incurred in connection with the injury.
As agreed by the parties, the plaintiff’s loss must be assigned a number from 1 to 60, and the legislation then applies a formula to that number to arrive at a dollar value. A schedule of the agreed non-economic loss values applicable to the plaintiff was tendered.[29]
[29] Exhibit D8.
The plaintiff plainly suffered severe injuries requiring extensive hospitalisation, surgery and ongoing rehabilitative treatment. He suffered very significant pain, embarrassment and difficulty in the early stages of his recovery. His sex life suffered severely, particularly at the outset. His overall condition has improved over time, although he still suffers significant pain, discomfort and restriction in his life and activities of daily living.
He has successfully remarried and currently can, as the evidence including the tendered video indicates, live fairly self-sufficiently, go out, shop, attend markets and socialise with those he meets. He cooks, socialises and contributes to a voluntary organisation. All agree that the plaintiff is a positive and resourceful person who is likely to do all he can to bounce back and achieve a positive lifestyle.
The plaintiff has to date refused the further surgery that all his medical advice recommends, however I find that it is likely he will undergo that surgery after judgement is delivered in this case, and that it is likely albeit not guaranteed that such surgery will significantly improve his pain, discomfort, quality of life and functional ability.
I also find on the basis of all the evidence that a proportion of the plaintiff’s current psychological state and his perceived pain and consequently perceived functional restriction has been exacerbated and is currently being maintained by the plaintiff’s stress, anger and frustration at the insurer and the fact that the legal proceedings have not resolved satisfactorily to him prior to trial. I find that the resolution of these proceedings by judgment is likely to improve the plaintiff’s psychological state, lessen his perceived pain to some degree and improve his consequent functional capacity to a degree.
Accordingly, it is likely that the further surgery and the cessation of legal proceedings will significantly improve the plaintiff’s quality of life.
The plaintiff will however, notwithstanding these positives, likely continue to suffer significant discomfort and restriction in his capacity and enjoyment of life.
Taking into account the plaintiff’s age, the nature of his injuries and the totality of the evidence, and giving detailed regard to all the matters submitted by counsel, the court assesses the numerical value of the plaintiff’s non-economic loss on a 0-60 scale at 30.
This equates to $79,430 on the agreed scale.
Past loss of earning capacity
I have had regard to the tax returns of the plaintiff and his businesses, and the detailed assessments of the plaintiff’s businesses and income by two forensic accountants called in the matter, Mr Clifton and Ms Orr. I accept each as well qualified, competent and good witnesses, whose assessments of the plaintiff’s financial situation are useful.
The assessment of the plaintiff’s past loss of earning capacity between the accident on 7 September 2008 and trial is complicated by the fact that although he was a moderately successful builder for many years, from 2006 he purchased then operated two Cold Rock Ice Cream franchises, which were at all relevant times unprofitable.
Although the full contractual terms of the Cold Rock franchise agreements were not tendered, they were for 10 years from 2006, and the plaintiff agreed that he was looking at continuing to operate them for that period.
I have had regard to everything put by both accountants and the submissions of counsel, however I find the most helpful starting point for an assessment of the plaintiff’s loss of earning capacity for the period between the accident and trial is the plaintiff’s own assessable income for the five years prior to the accident.
In the circumstances of this case, in my view that figure best represents the ultimate net return to the plaintiff from the matrix of work, business and financial structures the plaintiff had in place at the relevant times, for each of those tax years. There are many reasons for this, for example whilst Mr Clifton has for some tax years purported to add back a modest company profit figure to the plaintiff’s income, that profit was never paid to the plaintiff, and it is unclear whether the sum represents actual cash that the company possessed and could be paid out or not, whether it was required for working capital, needed to repay debt or for any number of other reasons would not have ever been available to pay out as a dividend to the plaintiff. I am also not satisfied that absent the company structure and the way the plaintiff was consequently able to structure his work and activities those monies which appear in the books as corporate profit would have been actual, earned and paid to the plaintiff working as a sole trader.
The plaintiff’s assessable income for the five years prior to the accident was as follows.
·2004 - $35,512
·2005 - $54,781
·2006 - $103,939
·2007 - $42,302
·2008 - $58,270
I do have regard to the fact that in addition to this assessable income, modest superannuation was also paid to the plaintiff by his construction business in preceding years such as 2007 and 2008, which likely would have continued in the future.
The figures show that the plaintiff was moderately successful as a builder, and his business was improving for the three tax years ending 30 June 2004, 2005 and 2006. The higher 2006 figure was in part due to the timing and completion of contracts, and also as he was doing more managing and supervising rather than hands on work. From the mid-2006 start of the 2007 tax year he was however devoting increasing time and effort to starting up and then running two Cold Rock Ice Cream franchises. These produced no net income for the plaintiff and required a very significant allocation of his time and effort. Also, contrary to the recommendation of the Cold Rock organisation, he had borrowed a significant sum of money to acquire the franchises and consequently also needed to service that debt prior to the realisation of any profit. The net result of this can be seen in his personal income in the two full tax years of 2007 and 2008, when he was operating both businesses full time.
The plaintiff’s aim was to operate the franchises until they became profitable, build them up, then sell them for a capital profit after repayment of the debt incurred to purchase, set up and initially run the businesses. In light of the performance of the two Cold Rock businesses over those two years, and the plaintiff’s significant debt levels in those businesses, and his ongoing commitments to his building business, I find it unlikely that the Cold Rock franchises would have achieved profitability and hence saleability over the course of the contracted franchise term. It is most likely, I find, that the plaintiff would have continued to try and run each of the businesses over the ensuing years, with the ongoing lack of profitability being an ongoing impediment to sale and a drain on his construction business.
With the plaintiff in full health, in my view the plaintiff could I find have probably maintained the Cold Rock and building businesses at their 2007 and 2008 levels, and financially survived. The Cold Rock franchises would not have been lost as they were, but on balance I find it very unlikely that they would have achieved profitability during the contracted 10 year franchise term. I accept that there are all manner of contingencies and possibilities, both positive and negative that must be factored in. I accept there are the range of contingencies discussed by both counsel in their addresses.
Ultimately I find that the most likely course of events is that the plaintiff would have continued to earn, and accordingly had for the period between accident and trial, income at, and a capacity to earn at, very approximately, his 2007 and 2008 years’ level, and would probably have continued to receive some superannuation contribution.
As required by section 54(1) of the Act, I ignore the first week’s loss of past earning capacity. From 7 days after the accident to the date of trial is a period of 5 years and 4 months. I take into account CPI over that period.
Taking everything into account, I assess the plaintiff’s past loss of earning capacity at $275,000.
Future loss of earning capacity
In my view, although I am satisfied that absent his injury it is likely that the plaintiff would have continued to run his ice cream franchises in conjunction with his building business up to the date of trial, keeping them afloat but not achieving any or any significant profitability enabling their profitable sale, in my view by the time of trial the plaintiff would likely have been looking to exit them for that very reason, and likely would not have in any event continued with them after the expiration of the 10 year franchise terms in 2016.
It is also likely that the plaintiff would have continued to operate his construction business profitably, and upon exiting the ice cream business would have had capacity to either put more into his construction business, pursue other business interests, or become more involved in the voluntary and alternate activities which the evidence demonstrates he has an interest in, such as “Adjust Earth”.
Whilst the plaintiff is a positive and resourceful person, the evidence does not demonstrate him having any substantial prior financial success apart from in the building industry, and indeed his boundless enthusiasm to embark on untried ventures for which he had no qualifications or experience, such as for what on the evidence were potentially quite financially flawed and leveraged Cold Rock franchises may have been his own worst enemy. On this basis, future alternate business ventures post-Cold Rock may not have been successful in any event.
However, it is likely that from around the date of trial or not too long after, the plaintiff would no longer have had the significant distraction of, and the profitless drain on his efforts occasioned by the Cold Rock franchises. He may of course have had other unprofitable ventures. However, it becomes in my view more valid to have recourse to pre-accident average earnings over extended periods that embrace his earning endeavours over times that include periods of work solely in the construction business, as they more accurately reflect his general loss of future working capacity.
In my view the plaintiff does presently retain some working capacity. I find that as things immediately stand he can do light work, including paperwork, cooking and supervisory duties, for up to several hours a day. As things currently stand I find he is in a practical sense unemployable on the open competitive labour market. He is however currently capable of working in such light duties on a self-employed basis either alone or in conjunction with others. Further, if as is in my view likely, he undertakes the recommended surgery, that working capacity will increase, and he may have a small capacity to work in particular part time in an employed role, as well as being better able to more comfortably undertake the several hours a day in a self-employed capacity in the light and organisational duties outlined. I find that he is likely to have the operation and that such improvement is likely to occur, resulting in that moderate working capacity. He will still be significantly disadvantaged in finding work in the open competitive labour market, but will have the capacity and motivation to embark on self-employed work. His long history of successful self-employment and his positive and resourceful attitude bodes well in that regard. I also take into account that he may not feel up to having the operation, and I take into account the chance that if he does have it that it may not be successful in improving his working capacity.
The plaintiff was 57½ years old at the time of trial. I find that absent the injury it is likely that the plaintiff would have worked until around the ages of 65 to 67. Given the plaintiff’s positive attitude I take into account the possibility he may have worked on beyond that age.
The average of his assessable income for the 5 years prior to injury is a total of $294,804 divided by 5, equalling $58,961 annual assessable income. He was also paid a total of $38,543 superannuation over the latter 4 years, averaging $9636 a year. Utilising that average superannuation figure, the average total assessable income and superannuation prior to the accident was equivalent to a gross sum of $68,597 a year. I do not add back in a figure for company profit as Mr Clifton has done, as for reasons earlier expressed in the context of past earning capacity calculations, there are many reasons why on balance I am not satisfied the plaintiff on balance would have had any such cash sum available to him or actually received such sums.

After income tax on $58,961 of $10,709[30] and superannuation deposit tax of 15% on $9636 of $1445, and deduction of estimated annual Medicare levy of $884[31] the average net income including superannuation per year is $55,559
[30] ATO online Income Tax calculator.
[31] 1.5% Medicare levy of the gross assessable income of $58,961 is $884.
I uplift that by 10% to approximate CPI to the date of trial, to $61,115.
The net present values of $61,115 to 30 June 2021 (the plaintiff turns 65 on 3 June 2021), 30 June 2023 (when the plaintiff is 67) and 30 June 2026 (when the plaintiff is 70) can be calculated as follows utilising the 5% discount rate prescribed in sections 3, 54 and 55 of the Act.[32]
[32] This approximates the methodology utilised by Mr Clifton at pages 99 and 133 of his report dated January 2014 tendered as part of Exhibit P3. I have applied his annual discount factors for the relevant years.

Net Income Year 5% D/count Factor NPV est

1 July 2014 to 30 June 2015 $61,115 1.5 0.9294 $56,800

1 July 2015 to 30 June 2016 $61,115 2.5 0.8852 $54,099

1 July 2016 to 30 June 2017 $61,115 3.5 0.8430 $51,520

1 July 2017 to 30 June 2018 $61,115 4.5 0.8029 $49,069

1 July 2018 to 30 June 2019 $61,115 5.5 0.7646 $46,729

1 July 2019 to 30 June 2020 $61,115 6.5 0.7282 $44,504

1 July 2020 to 30 June 2021 $61,115 7.5 0.6936 $42,389

1 July 2021 to 30 June 2022 $61,115 8.5 0.6605 $40,366

1 July 2022 to 30 June 2023 $61,115 9.5 0.6291 $38,447

1 July 2023 to 30 June 2024 $61,115 10.5 0.5991 $36,614

1 July 2024 to 30 June 2025 $61,115 11.5 0.5706 $34,872

1 July 2025 to 30 June 2026 $61,115 12.5 0.5434 $33,210

These net present values equate to $345,110 for the period 1 July 2014 to 30 June 2021 when the plaintiff would have just turned 65, $423,923 to 30 June 2023 at the age of 67, and $528,619 to 30 June 2026 at the age of 70.
I would apply a discount of approximately 10% for the normal vicissitudes of life, that for whatever reason the plaintiff would have been unable at some stage to continue to work, or work at the rate and extent that he was hitherto able. I would apply a discount of approximately 10% to reflect the capacity he has in the future to engage in paid work on a part time basis, particularly in a self-employed capacity or co-operatively with others.
Applying this 20% discount to the above figures results in sums of $276,088, $339,138 and $422,895, depending on whether the plaintiff would have worked to the ages of 65, 67 or 70.
Taking everything into account, I assess the plaintiff’s future loss of earning capacity at $350,000.
Gratuitous services
Section 58 of the Act regulates an award of damages for gratuitous services provided to a plaintiff. Such damages are limited to those provided by a parent, spouse, domestic partner or child of an injured person, and the reimbursement of reasonable out of pocket expenses voluntarily incurred by such a person. Those damages are not to exceed an amount equivalent to 4 times State average weekly earnings unless those services are both reasonably required and it would otherwise have been necessary to engage another person to provide the services for remuneration. In that event, the damages awarded are not to reflect a rate of remuneration in excess of State average weekly earnings.
No allowance can be made for any services provided by Ms Sym Choon or the plaintiff’s 2012 new wife as neither falls within the definition of spouse on the day of the accident, indeed none are sought by the plaintiff.
The vast majority of gratuitous assistance was provided to the plaintiff by his son Joel Dawson.
The plaintiff gave detailed evidence about the assistance he received, as did his son Joel. Whilst, as I have said, the plaintiff was by and large an adequate witness, I refer to my earlier general observations about his evidence, and indicate that Joel was in my view a straightforward and honest witness whose evidence I primarily rely on as the most reliable and accurate as to the assistance he gave the plaintiff. I also take into account the limited assistance provided by daughter Tulani, which I have regard to but do not repeat.
In the period the plaintiff was in hospital and in the rehabilitation centre Joel said he would drop things in to his father such as food, water and mail. He had a roster with his sisters to do that.
When his father returned home, Joel described having to be his father’s full time carer for the six to eight weeks that he was in a wheelchair.[33] His father was then on crutches up to maybe June 2009, and used a walking frame for a time. Then he used a walking stick for a couple of months.
[33] T509.
Joel said he took his father to between seven and nine appointments a week. Some were just up the road, others like the physio were maybe half an hour away. Joel said he did that every couple of days over a couple of months until his father could drive in around April and May 2009.[34] Joel said that at the start he did all the housework until they got a cleaner paid for by the insurer. He would still do clearing up, for example pick things up off the floor. He Joel still cooked and did the dishes. He did all the cooking for the first three months then they took it in turns again, as they had done prior to the accident. Between January and June 2009 Joel did the shopping by himself until just prior to June 2009 when his father was well enough to come along and then they did it together. He Joel pushed the trolley and lifted the bags.
[34] T511.
Overall, Joel said that for at least two to three months after his father came out of hospital he helped the plaintiff for a total of three or four hours a day, plus the time he had to spend taking him to appointments of about 15 to 16 hours a week. During that period he would have to do quite personal things such as help him shower and dress.[35]
[35] T514.
Joel then gave evidence about the period June 2009 through to the plaintiff’s marriage in May 2012. June 2009 was the time the plaintiff returned to work in his construction business.
During that 2009-2012 period Joel gave evidence that he would still take his father shopping each week, and although the plaintiff was soon provided with a gardening service, he would still do heavy lifting, bits of gardening, gutters twice a year and occasional maintenance around the house. He said he helped him for some time every week, it being down to maybe a few hours a week by the time the Plaintiff met his new wife.[36]
[36] T516.
I have regard to without repeating all the evidence concerning the cost of providing such services. In 2010 Ms Opperman reported that Safework SA’s award rate for a casual cleaner was around $20 an hour.[37] Ms Dwyer provided a report in 2011 indicating the hourly range of costs for domestic assistance in areas such as cleaning and gardening, at about $25 an hour for local contractors sourced through local newspapers and community boards, to larger commercial service providers at between $35 and $38.50 an hour.[38] Ms Dwyer provided a final report in January 2014 wherein she stated that as at 2014 ‘commercial cleaning rates’ were about $41-44 an hour and some other domestic tasks $65 if commercially provided.[39] In evidence at trial Ms Dwyer said that, in relation to for example gardening, you could currently retain local contractors (at perhaps a little more than the 2011 cost of about $25 an hour earlier reported), or you could go to services such as Dial-an Angel for $41 an hour or Jim’s Mowing at about $65 an hour.[40] She said that as at between 2009 to 2012 the domestic assistance rate, which I assume is the commercially provided rate, not the local contractor rate, was between $35 and $39.[41]
[37] Exhibit P1, at page 169.
[38] Exhibit P1, at pages 131-149.
[39] Exhibit P22, T634.
[40] T646.
[41] T650.
I find that a blend of local contractors and commercial contractors would have been reasonable. The cost would have ranged over the parameters described in evidence. In the final analysis, accepting that some service providers would have been more, and some less, an average rate of $30 an hour is reasonable. On the basis that Joel provided full time assistance to the plaintiff for two to three months after he was discharged from hospital, then the gradually reducing monthly care over time through to May 2012 that he gave in evidence, I assess the value of past gratuitous services.
I find that the plaintiff’s family, primarily though Joel, provided full time support (in the sense of around a full time working week’s hours of up to 37.5 hours a week) for the plaintiff for about the first three months after discharge from Hospital.
Full time assistance at $30 an hour is $1125 per week, which for 13 weeks totals $14,625.
I find that the plaintiff was then provided with assistance over the next three years until his May 2012 marriage, the assistance gradually decreasing as his capacity increased, which I average at 10 Hours a week over that period. 10 hours a week at $30 an hour equals $300 a week, in other words $15,600 for a 52 week year. An average of 10 hours a week for the three years to May 2012 years totals $46,800.
Accordingly I assess the value of past gratuitous services provided by Joel at $61,425, which I round up on the basis of miscellaneous other assistance received from the family over time, including the plaintiff’s daughter, to $65,000.
Future care, assistance and equipment
I have regard to all the evidence concerning the plaintiff’s need for future care, assistance and medical treatment.
In relation to future domestic assistance, I have regard to the evidence in particular of Ms Dwyer, who quantified the future services she said the plaintiff would need based on his reported level of functioning and ability.
I have regard to the tendered actuarial certificates of Brett and Watson, and the present values of the cost of the services identified by Ms Dwyer.
The relevant whole of life multiplyer of $1 a week is $757.
I have regard to the fact that for reasons earlier discussed the plaintiff likely has slightly more functional ability than he reports, and that his functional ability will likely improve on resolution of these proceedings and will likely improve further upon his probable undertaking the surgery recommended by his treating specialists. I accordingly discount the quantum of services identified and quantified by Ms Dwyer somewhat, and further adjust the assessment in light of the significant likely improvement in the plaintiff’s functional ability due to the factors mentioned.
Based on the evidence and submissions of the parties I would include an assessment of the value of $15,000 for the cost of future house painting. I include an assessment of $2000 for the likely need for provision of equipment to assist him around the house.
Taking everything into account, I assess the value of future domestic assistance including required future equipment and the need for future house painting at a total of $127,000.
Future surgery
I find it is highly likely that the plaintiff will undertake the surgery recommended by his specialists and that accordingly an undiscounted allowance should be made for the cost of it.
The cost of the combined surgical procedure anticipated to be undertaken by Dr Pohl and Dr Aspinall totals $7400, together with post-operative rehabilitation as assessed by Dr Bastian of up to $2000.
It is also likely that the plaintiff will undergo implant surgery at a cost of $18,000-$22,000, and dental crown work to the value of $1200.
I add an allowance for the contingency that supplementary surgical costs re muscle repair may be incurred, the possibility of the need for further surgery, and supplementary rehabilitation.
Taking all this into account I allow $40,000 for future surgery and associated rehabilitation.
Future non-surgical medical treatment
The plaintiff seeks the cost of future medical treatment in the form of GP and urologist reviews, psychological treatment, Bowen therapy, massage, physiotherapy, hydrotherapy and gym memberships.
Allowance for ongoing GP and urological review is not in dispute, as is an allowance for massage and hydrotherapy. The plaintiff had discontinued physiotherapy in the months prior to trial. I find that there is a need for short term continuing psychological treatment, however that this will likely cease when the stresses of trial are over and the operation and consequent rehabilitation and symptom reduction have likely occurred.
I am not persuaded on the evidence that there is objective need for further physiotherapy or for Bowen therapy, although I accept that the plaintiff perceives at least some short term subjective relief from them.
From the schedule of future treatment submitted by the plaintiff, I extract and quantify the plaintiff’s reasonable future treatment as follows:

Urologist ($215 at 1-2 times a year) Weekly cost (say) $7

GP visits ($55 every 2 months) Weekly cost $6

Psychologist ($200 every 2 months) Weekly cost $23

Hydrotherapy Weekly cost $23

Massage Weekly cost $85

Gym membership Weekly cost $20

Physiotherapy No allowance -

Bowen therapy No allowance -

Applying the whole of life actuarial multiplier of $757 to the resulting figure of $164 gives $124,148.
I discount that figure on the basis that psychological treatment should only be required for a limited period to tide the plaintiff through the trial aftermath and his likely operation. I take into account all relevant contingencies.
Taking everything into account, future non-surgical medical treatment is assessed at $115,000.
Future medication
The medications taken by the plaintiff were not in substantial dispute. A schedule of them was provided drawing together the plaintiff’s evidence, and the price and actuarial calculations were also not in dispute.
The need for some of those medications was however in dispute.
Of those medications the plaintiff agreed he had not used Endep for six months prior to trial, and had ceased taking fish oil.[42]
[42] T229-232.
Of considerably more monetary significance, the plaintiff said he continued to take several non-prescription ‘complementary medicines’. Two of those are called Ethical Nutrients Inner Health Plus and Ethical Nutrients Urinary Tract Support. The plaintiff proposes to continue to take those medications, and they represent a large proportion of the cost of claimed future medication, $4,639 and $32,077 respectively, totalling $36,716 of the $47,870 claimed for future medication.
There is almost no evidence as to the utility and need for these ‘complementary medicines’. Almost in passing, the urologist Dr Aspinall is asked in evidence;
Q.Is it your understanding that Mr Dawson has an aversion to taking medication.
A.I’d think that Mr Dawson has gone through major trauma. I’m not surprised that he wants to try to reduce the medicalization of his life but yes, he is averse to taking a lot of medication.
Q.I think perhaps, partly connected with that, you’re aware of the fact that he takes complementary medicine, if I can put it that way, to address the urinary tract issues.
A.Yes, and I encourage that in all my patients.
Q.Would you encourage him to continue taking that complementary medication until at least the operation has been undertaken.
A.Correct.
Q.Would you encourage him to continue taking that complementary medication even after the operation.
A.No, I would normally suggest that the complementary medication would be ceased to see whether or not he has a need to take it any longer.
There is no evidence as to the specific therapeutic effect of “Inner Health Plus” or “Urinary Tract Support”, nor whether Dr Aspinall was familiar with those specific products or recommending them beyond the fact that he was generally in favour of complementary medicines for all his patients.
In fairness to the plaintiff, and on the balance of probabilities, despite the dearth of evidence, on the thinnest support from Dr Aspinall, I am prepared to regard the taking of these products as reasonable but only up to the time of the operation which would be anticipated to address and treat the urinary tract infection issue. As earlier discussed, it is likely the plaintiff will have the operation within a reasonable time after the trial, which after taking into account all contingencies, I allow two years. The combined weekly cost of those medications per the actuarial schedule is $6.13 for Inner Health Plus and $42.39 for Urinary Tract Support, totalling $48.52 a week. I allow 104 weeks, totalling $5046. Similarly I allow the other two ‘complementary medicines’ cranberry tablets and magnesium tablets, for 104 weeks. Although ‘Sleep sound formula’ is a complementary medicine, I am prepared to find that may be required into the future in light of the totality of the plaintiff’s likely residual symptoms even subsequent to a successful operation.
Accordingly I allow the following for future medication, based on the agreed schedules of medication and actuarial calculations, adjusted for the matters I have discussed above.

Temez as per schedule $545

Panadol as per schedule $726

Endep no longer used -

Viagra as per schedule $978

Asprin as per schedule $90

Inner Health Plus and
Urinary Tract Support $5046

Tramadol as per schedule $311

Valium as per schedule $212

Cranberry tablets 104 weeks @ $2.04 $212

Magnesium tablets 104 weeks @ $2.14 $222

Sleep sound formula as per schedule $1807

Fish oil no longer used -

These figures total $10,149. In light of all contingencies, including the possibility the plaintiff may against his medical advice not have the operation, and the risk that the operation may not improve his situation as anticipated by the medical advice, I round this figure up to $17,500.
Special damages
Some outstanding special damages in the amount of $813.40 have been agreed.[43]
[43] As set out on page 1 of P28, per paragraph 3.13.2 of the plaintiff’s final written submissions.
Further items were not agreed. On the basis of the evidence of Dr Pohl, I find on the balance of probabilities that it is likely that the prolonged bed rest required by his primary injuries likely resulted in the bursitis, and that accordingly ultrasound to detect this to the value of $415 is payable by the defendant. The past physiotherapy and hydrotherapy recommended by Dr Bastian I find was reasonably incurred, totalling $912.80 and $285 respectively, and are accordingly payable by the defendant.
It is agreed that pursuant to a Medicare Notice, $2,283.80 is payable to the HIC, and such sum is to be included in any judgement sum.
These sums total $4,710.
Special damages paid
The defendant has paid a total of $221,239.73 prior to trial. In light of the apportionment of liability of 20% to the plaintiff, the plaintiff is liable to refund 20% of this sum to the defendant. That sum totals $44,247.90.
Interim payment already made
It is agreed that the defendant has already paid the plaintiff the sum of $155,000.[44]
[44] Plaintiff’s final written submissions paragraph 3.14.3.
Interest
The plaintiff is entitled to interest on damages for past loss of earning capacity and past gratuitous services.[45]
[45] Section 56 of the Civil Liabilty Act (1936).
Conclusion as to liability
Liability for the accident is apportioned 80% to the defendant and 20% to the plaintiff.
Conclusions as to damages
The numerical value of the plaintiff’s non-economic loss assessed on the statutory 0-60 scale is 30. This equates to $79,430 for non-economic loss before apportionment.
The plaintiff’s past loss of earning capacity is $275,000 before apportionment.
The plaintiff’s future loss of earning capacity is $350,000 before apportionment.

The value of past gratuitous services provided by to the plaintiff is $65,000 before apportionment.
The value of future domestic assistance including required future equipment and the need for future house painting is $127,000 before apportionment.
$40,000 is assessed for future surgery and rehabilitation from that surgery before apportionment.
Future non-surgical medical treatment is assessed at $115,000 before apportionment.
Future medication is assessed at $17,500 before apportionment.
Outstanding special damages inclusive of monies payable to the HIC total $4,710.
Apportionment and adjustments
The total assessed damages are accordingly $1,073,640 before apportionment. 80% of that sum is $858,912, after a reduction of 20% for contributory negligence.
That sum must be reduced by the $155,000.00 already paid and the repayment of $44,247.90 in special damages, being 20% of special damages paid prior to trial.
Orders
I will hear the parties on interest, costs, ancillary and final orders in light of the above conclusions.

Net Income	Year	5% D/count Factor	NPV est
1 July 2014 to 30 June 2015	$61,115	1.5	0.9294	$56,800
1 July 2015 to 30 June 2016	$61,115	2.5	0.8852	$54,099
1 July 2016 to 30 June 2017	$61,115	3.5	0.8430	$51,520
1 July 2017 to 30 June 2018	$61,115	4.5	0.8029	$49,069
1 July 2018 to 30 June 2019	$61,115	5.5	0.7646	$46,729
1 July 2019 to 30 June 2020	$61,115	6.5	0.7282	$44,504
1 July 2020 to 30 June 2021	$61,115	7.5	0.6936	$42,389
1 July 2021 to 30 June 2022	$61,115	8.5	0.6605	$40,366
1 July 2022 to 30 June 2023	$61,115	9.5	0.6291	$38,447
1 July 2023 to 30 June 2024	$61,115	10.5	0.5991	$36,614
1 July 2024 to 30 June 2025	$61,115	11.5	0.5706	$34,872
1 July 2025 to 30 June 2026	$61,115	12.5	0.5434	$33,210

Urologist ($215 at 1-2 times a year)	Weekly cost (say)	$7
GP visits ($55 every 2 months)	Weekly cost	$6
Psychologist ($200 every 2 months)	Weekly cost	$23
Hydrotherapy	Weekly cost	$23
Massage	Weekly cost	$85
Gym membership	Weekly cost	$20
Physiotherapy	No allowance	-
Bowen therapy	No allowance	-

Temez	as per schedule	$545
Panadol	as per schedule	$726
Endep	no longer used	-
Viagra	as per schedule	$978
Asprin	as per schedule	$90
Inner Health Plus and Urinary Tract Support	$5046
Tramadol	as per schedule	$311
Valium	as per schedule	$212
Cranberry tablets	104 weeks @ $2.04	$212
Magnesium tablets	104 weeks @ $2.14	$222
Sleep sound formula	as per schedule	$1807
Fish oil	no longer used	-