Dunnet v Brennan

[2000] NSWCA 211

Reported Decision: [2000] 31 MVR 362

New South Wales

Court of Appeal

CITATION:	Dunnet v Brennan [2000] NSWCA 211
FILE NUMBER(S):	CA 40189/99
HEARING DATE(S):	04/08/00 (Reasons for judgment given 11/08/00)
JUDGMENT DATE:	4 August 2000
PARTIES :	Robert Dunnet and David John Kerr (Appellants) Daniel Alexander Brennan (Respondent)
JUDGMENT OF:	Priestley JA at 1; Powell JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	9265/97
LOWER COURT JUDICIAL OFFICER :	Dent DCJ

COUNSEL:	J.R. Glissan QC / K.J. Kelleher (Appellant) C.E. O'Connor QC / C. Charteris (Respondent)
SOLICITORS:	Ferguson Holz (Appellant) Brennan Blair & Tipple (Respondent)
CATCHWORDS:	Negligence - whether driver of vehicle negligent when he continued to drive with passenger on the roof - whether the percentage of contributory negligence apportioned by the trial judge was too low - whether the damages awarded for non-economic loss, economic loss, future economic loss and future care by the trial judge were excessive. - ND
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1965
CASES CITED:	Martin v Howard (1983) Tas.R. 188 Wynbergen v Hoyts Corporation Pty Ltd (1997) 129 ALR 25 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
DECISION:	Appeal dismissed, with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40189/99
DC 9265/97

PRIESTLEY JA
POWELL JA
FITZGERALD JA

FRIDAY 11 AUGUST 2000

DUNNET v BRENNAN

JUDGMENT

1   PRIESTLEY JA: I am in accord with the reasons given by Fitzgerald JA for the orders made by this Court on 4 August 2000 for dismissing the appeal in this case, with costs. 2   POWELL JA: The reasons set out by Fitzgerald JA in his Judgment encompass the reasons which led me to join in the orders made by the Court on 4 August last. 3   FITZGERALD JA: The respondent, Daniel Alexander Brennan, was injured when he fell from a motor vehicle owned by the father of one of his friends, the appellant Robert Dunnet, and driven by another of his friends, the other appellant David John Kerr. The trial judge held that both Kerr and the respondent were negligent. The damages awarded to the respondent were reduced by 25 per cent because of his contributory negligence. 4   The appellants’ appeal in respect of both damages and liability was dismissed at the conclusion of the hearing on the basis that these reasons would be provided later.

5   The accident was the result of youthful irresponsibility. The parties to the appeal, the respondent’s brother, Matthew, and some of their friends attended a surf lifesaving carnival on 6 May 1994 at Kingscliff Beach. Some of the group, including the respondent, competed in the carnival. Later, a number, including the parties, went to a hotel in Kingscliff. Kerr is a diabetic and only had two schooners of beer. Others, including the respondent and his brother and Dunnett, drank a considerable amount of alcohol and became “well and truly intoxicated”. At about 7.30pm, the parties and the respondent’s brother left the hotel where they had been drinking to travel to another hotel at Bogangar where they expected to meet more friends. Because everyone else was too intoxicated to drive, Kerr was given that responsibility.

6 Dunnett’s motor vehicle was a Toyota 4 Runner with what can be broadly described as having a station wagon configuration. The interior of the vehicle contained a front seat, a rear seat and a cargo space behind the rear seat. Access to the vehicle was through the front driver or passenger side doors or a door at the back of the vehicle. The rear door had a window which could be wound up or down only by means of a switch controlled by the driver. Roof racks across the vehicle were suitable for the attachment of surfboards. However, the back of the front passenger seat and at least the corresponding portion of the rear seat had been folded down and surfboards had been placed within the vehicle from front to back along the passenger side. The respondent and his brother and Dunnett sat in the cargo space. 7 As they approached their destination, the vehicle was travelling at about 50 to 60 kilometres per hour. It was dark and the road was wet. Kerr’s attention was attracted by either flashing lights or a car horn from a following vehicle, which it seems to have been assumed contained friends. The respondent and his brother and Dunnett decided to remove their clothing and expose their buttocks to the people in the following vehicle. All three stripped and at least the respondent and his brother climbed out of the rear window of the vehicle, which Kerr had opened. Kerr knew that his passengers were outside the vehicle. Initially, those outside the vehicle stood on the rear bumper bar and/or the rear window sill and grasped the rear roof-rack. The respondent and his brother then climbed onto the roof of the vehicle and kneeled there, holding the rear roof rack. These activities were accompanied by considerable noise. 8 Kerr knew of the danger to his passengers, and attempted unsuccessfully to persuade them to re-enter the vehicle. He could have slowed and stopped, but did not do so. He said that there were shops in the vicinity and he did not want to embarrass his friends who were naked. It was not far to their destination, and he drove on. When it became necessary to turn left, he slowed down to about 30 kilometres per hour. As the vehicle turned, the respondent was thrown from the roof onto the road and suffered serious injuries. 9 Although the appellants’ submissions in relation to liability were variously formulated, they contained two main propositions. One was that the trial judge erred when he found that Kerr was aware that one or more of his passengers was on the vehicle roof. The other was that the respondent had not established that he would not have been injured if Kerr had slowed and stopped instead of continuing and turning once he became aware that his passengers had climbed outside the vehicle. 10 It was open to the trial judge to reject Kerr’s evidence that he did not know that any of his passengers had climbed onto the roof. Not surprisingly, there were some inconsistencies in Kerr’s evidence at the trial and earlier accounts which he had given between the accident and trial. Even if he was an entirely honest witness, telling what he remembered to the best of his ability, his evidence might not have been reliable. Recollections commonly diminish personal responsibility. The trial judge saw and heard Kerr give his evidence. Further, he took into account the circumstances, including the fact that, after they had climbed onto the vehicle’s roof, those who had done so would no longer have been visible to Kerr in the rear view mirror. 11 In any event, even if he did not know that one or more of his passengers was on the roof of the vehicle, Kerr owed his passengers a duty of care which he breached by continuing to drive instead of slowing and stopping. 12 The appellant’s second major proposition is likewise not sustainable. It was open to the trial judge to conclude, and correct of him to do so, that the respondent would probably not have been injured if Kerr had slowed and stopped instead of continuing and turning the corner. 13 At first glance, the conclusion that the respondent’s damages should be reduced by only 25 per cent might seem curious. In his intoxicated state, he engaged in reckless folly. However, the making of the apportionment which s 10 of the Law Reform (Miscellaneous Provisions) Act 1965 requires does not only involve comparison of the degree to which the respondent and Kerr respectively departed from the standard of what is reasonable. “Regard must be had to the ‘relative importance of the acts of the parties in causing the damage’ and it is ‘the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination’”. [1] Further:

“A finding on a question of apportionment is a finding upon a ‘question, not of principle or a positive findings of fact or law, where a proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion as to which there may well be differences of opinion by different minds’ ….. Such a finding, if made by a judge, is not lightly reviewed.” [2]

14   The trial judge correctly placed considerable emphasis upon the circumstances that Kerr was in control of the situation and knew of his passengers’ reckless folly, the danger in which they had placed themselves and that their judgment was seriously affected by their intoxication. He could have terminated the danger to his passengers by slowing down and stopping, but did not do so. 15   While other minds might consider it just and equitable that the respondent’s damages should be reduced by more than 25 per cent, that conclusion was open to the trial judge, and is not one with which this Court is entitled to interfere. [3] 16   The appellants’ challenge to the trial judge’s award of damages for the respondent’s non-economic loss accepted his Honour’s description of the respondent’s injuries and their sequelae, which are reproduced as a Schedule to these reasons. However, it was submitted that the conclusion that “all of this amounts to a state of affairs which represents 80 per cent of a most extreme case”, was wrong, and that no more than 60 per cent of a most extreme case was demonstrated. 17   As the appellants accepted, a comparison between an injured person’s condition and a most extreme case requires a value judgment related to circumstances which vary in significance from person to person. Different opinions are legitimately open. This is another area in which an appellate court is not justified in interfering with a trial judge’s decision unless there is discernible error or the decision is so unreasonable that it cannot be correct. 18   The appellants’ arguments did not demonstrate any error in the trial judge’s approach, or persuade me that the figure of 80 per cent of a most extreme case was not open to his Honour. 19   Two separate complaints were made by the appellants in relation to the damages which were awarded to the respondent for future economic loss. 20   The appellants’ first point was that no discount for vissisitudes was applied to the economic loss awarded to the respondent in respect of the period between the end of the hearing and the end of the year in which the matter was heard and decided. As was pointed out during the hearing in this Court, the trial judge was entitled to be satisfied that what would occur in that short period was sufficiently certain that a discount was not warranted. 21   The appellants’ main complaint in relation to the trial judge’s award to the respondent for future economic loss concerned his Honour’s conclusion that the respondent’s “earning capacity to age sixty five [was] … no more than half of his currant nett earnings which are $240 per week…”. Broadly, it was submitted that that conclusion underestimated the respondent’s prospects. It was also submitted that the trial judge took too favourable a view of the respondent’s prospects prior to the accident. 22   The trial judge obviously formed an excellent impression of the respondent and his pre-accident future and was understandably pessimistic about the situation with which he is now faced as an unskilled employee, with significant deficiencies, in a volatile industry which is prone to economic fluctuations. While other views were again open, there is nothing to indicate any error by the trial judge. 23   Finally, the appellants argued that the respondent was awarded too much for care. However, after noting that divergent views had been expressed in the medical evidence, the trial judge accepted expert opinion that supported the amount which he awarded. It was permissible for him to do so. 24   In summary, the appeal was dismissed because no appealable error was demonstrated.

Schedule

The plaintiff is a single man who was born on the 23rd September 1974 and who at the date of the accident was living with his mother and father in their home at Bayview. The manner of this young man is best described I believe by quoting in full form his leaving school reference given by Brother Earnest the Headmaster of St Josephs College Hunters Hill.

“This is to certify that Daniel Alexander Brennan has been a student at St. Josephs College Hunters Hill for the past three years, from 1990 to 1992. During this time he has proved to be a most impressive young man. He has pursued his studies very conscientiously and involved himself most positively in all areas of College life. He has consistently obtained excellent grades in the areas of conduct, courtesy and co-operation.
As a student Daniel is of average ability and deserves credit for his constant application to his studies. He has improved his aggregate mark through a determined study effort.
While at the College Daniel has been involved in many activities. He represented the College in Rowing, Rugby and Cross-Country Running. He was a member of the College 3rd IV, winners at the 1991 GPS head of the river and also a member of the College 1st VIII and the Under 18 Rugby XV. He assisted staff with the coaching of junior boys in sport and performed this task with skill and good sense. He was actively involved in social work, assisting by his volunteer work at the Matthew Talbot Hostel and was a regular blood donor. He was always very prominent in the activities of year 12.
I have always found Daniel to be a very positive, pleasant and industrious young man. He is a genuine, sincere and caring person. He is highly respected by his peers and staff for his strong convictions and principles. He is a young man of strong character and self-discipline and highly motivated to give his best.
In conclusion Daniel has demonstrated to me that he is reliable, generous and talented young man. I have always found him to be sensible, responsible and honest. He can be relied on to perform his responsibilities seriously and well. I give him my highest recommendation and wish him well for his future.”

I quote also from the reference of his rowing coach at that school and that is dated the 17th August 1992 and formed part of Exhibit F
“I have known Dan for 2 years in my capacity as rowing coach and boarding school supervisor at St Josephs College. I have also come to know his family, and his parents are very stable, happy and supportive people. This is very evident in Dan’s personality, as I have seen him mature into a fine young man.
Dans strongest features are his immense popularity among both his peers and his teachers, his ever friendly disposition (I have never seen him lose his cool), his level0headedness, his ability to do large amounts of physical work to the very best of his ability without complaint, and a very mature toughness under pressure for one so young.
I don’t know about his grades, but of the hundreds of boys that I have dealt with, to get a job done well Dan would be someone I would like on the team.
I recommend his highly”.


I am satisfied that prior to the subject accident the plaintiff was in glowing health and that the conduct he displayed which had brought him into a situation where the subject accident could occur was by no means representative of his then or likely future lifestyle but merely a bit of youthful folly by way of relaxation at the end of a major surf championship in which he had competed.

I am satisfied that despite submissions to the contrary, that the plaintiff at the time of the subject accident was settled in his chosen vocation. He was an apprentice carpenter and the evidence of his employer indicated to me that in all probability he would have continued to follow the task of acquiring skills and knowledge within the building trade. I accept the plaintiff’s evidence that he loved working with wood and intended to pursue his qualifications as a carpenter and then as Clerk of Works, so as to qualify his as a building foreman and/or a licensed builder.

I have carefully considered the evidence of his employer at the time of the accident and the evidence of his father and mother as to the nature of the plaintiff and the family make up, and I am sure that he would have received every support from his family in the pursuit of his ambitions, and that those ambitions were well within his reach. The view I have of the plaintiff and his family structure is that it is a close and supportive family of people who are committed to their ambitions and that they are people who do not do things by halves. When one considers the evidence emanating from the family and from the plaintiff’s employer at the time of the accident I am satisfied, well satisfied, that the plaintiff’s ambitions were not only achievable in his hands but would have been achieved in all probability but for the happening of the subject accident.

I reject as improbable any submissions that I ought to discount the plaintiff’s realisation of the achievement of his ambitions in the carpentry and building trade upon the basis that there was only a percentage likelihood of them being achieved. True it is that what is required of the court is the valuation of the loss of a future chance, and that in the face of this plaintiff, I value the loss of his opportunity to become (a) a carpenter and (b) a Clerk of Works and (c) a builder in his own right, as a loss of a chance which in all probabilities was a certainty. When one allies the achievement of those qualifications to the plaintiff’s demonstrated personality and character, highlighted by his immediately seeking work on the achievement of his secondary education, and his determination to return to that work at an early stage after the happening of the injuries, persuades me that no other conclusion is available to me other than that having achieved his qualification the plaintiff would be a sought after employee and a maximum earner in employment and a success in the avocation of a builder in his own right as and when he chose to enter self employment.

In the subject accident the plaintiff received the following injuries which I take from the amended particulars under Part 12 Rule 4 a:

(a) Laceration and Contusion to Occiput (back of head);
(b) Fractured Right Occipital bone going up through to the left parietal;
(c) Loss of consciousness;
(d) Amnesia:
(e) Brain Damage including multiple bilateral frontal contusions, contusion of the right temporal lobe, linear sub-dural;
(f) Abrasions to the back;
(g) De-gloving injury to the left hand;
(h) Headache;
(i) Soft Tissue injuries to the right wrist;
(j) Injury to the tendons of right wrist;
(k) Soft tissue injury to the Lower back;
(l) Shock


On the day following his admission to the Intensive Care Unit of the Gold Coast Hospital, he required emergency Craniotomy through the right frontal region with drainage of an intra-cerebral haematoma and a removal of a portion of the right frontal pole. He was discharged from that hospital to Mount Wilga Hospital New South Wales on the 13th March 1994 for rehabilitation. He required further surgery in 1995 when a Doctor Betts operated on his right wrist to correct a subluxation of the right extensor carpi ulna tendon at the wrist, but this surgery was only partially successful and I accept the opinion of Doctor Searle derived from his examination of the plaintiff a strength testing of grip that the right hand is significantly less forceful than the left hand in that the right grip is a 37kg grip and the left hand was 49kgs.

The injury to the plaintiff’s back became obvious after leaving Mount Wilga Hospital and an increase in activity. I accept Doctor Searle’s opinion that this is caused by lumbar ligament strains suffered in the accident, and that as with the wrist, there is permanent disability rendering him unfit for work which requires prolonged standing or prolonged sitting, lifting or repeated bending, or regularly travelling moderate to long distances.

The wrist injury has left the plaintiff unfit for work with the right arm which requires strong or repetitive movements of the hand and wrist, and I accept that this is permanent and I accept the opinion of Doctor Searle that he is in fact permanently unfit for his pre-injury work as a carpenter from an orthopaedic stand point or from any “physical work” involved in the building industry. By the latter opinion I take it that the Doctor is of the view that the expression “physical work” means heavy physical work.

Doctor Bornstein, qualified by the defendant, accepts the existence of both injuries but does not see the back injury as restrictive of work activity, but rather of the plaintiff’s vigorous sporting activities. Doctor Bornstein thought the back had some potential for resolution and that the condition of the plaintiff’s wrist was static. To me these Doctors are saying much the same thing about the plaintiff orthopaedically. The plaintiff is a man who is doing his best to earn a living despite those injuries but I accept as a matter of common sense that the heavier use he is from time to time forced to put his right wrist and back to, cause him temporary disability and are a matter of personal concern, and the validity of his conviction that his disabilities exclude him from a longtime career in the building trade.

It goes without saying that the orthopaedic disabilities suffered by the plaintiff must restrict him in achieving his full potential in his sporting activities and avocation’s requiring total physical fitness, but in the ordinary course of events when dealing with one as young as the plaintiff and with the pre-accident personality of the plaintiff the restrictions so imposed would be expected to be compensated for by diversification of the profit or income earning activities in which the plaintiff indulged. Sadly in this case the plaintiff received what can only be described as gross injury to his brain, particularly focalised in the frontal lobes. The frontal lobe damage is permanent and irreversible and carries with it even now a small risk of the development of frontal lobe epilepsy. Its present and continuing consequences for the plaintiff are that he is now sadly a person who is reduced in overall functioning by organic limitations within the brain structure itself and quite profound personality changes.

Were I to rely upon the plaintiff solely in assessing the impact of the brain injury upon him one would be faced with a somewhat hazy picture, because it is clear to me as the trial judge who has observed the plaintiff at length in the witness box, that he seeks to diminish the real effect of the injuries upon his life and potential future and it is quite clear that the real limitations imposed upon the plaintiff have to be gauged by a close study of the views of Doctor Rodney Milton who gave viva voce evidence and Doctor Langeliddecke, Psychologist who gave viva-voce evidence, and whose views I accept as a full and fair presentation of the plaintiff’s limitations from a medical standpoint, and close examination of the evidence of his father and mother and his pre-accident employer, Mr Brett Walinski, coupled with a close and careful study of the plaintiff as he presented to the court.

The plaintiff who had entered his second year of apprenticeship with Mr Walinski as a carpenter, in the views of his medical experts re-entered employment at an inappropriately early stage of his rehabilitation, and I make due allowance for that fact in considering the evidence of Mr Walinski, but with all due allowance for that fact, one is left with the evidence of Mr Walinski a very clear picture of a young man who was exceptionally skilful and dedicated prior to the accident, returning to the work force as a pathetic, disorganised person who could not even be allowed to work with electric tools through fear that he might injure himself. That which Mr Walinski observed alarmed him and he wisely restricted the range of the plaintiff’s duties and discussed the problem with his parents. The plaintiff’s response to Mr Walinksi seeking to protect him was one of resentment which led to a mutual parting of the ways. Now years after the accident the plaintiff presented as a witness in this court, and I rapidly came to conclusion watching him and listening to him, that which would be obvious to any interested observer that this young man was to use the vernacular, not right in the head. His responses to questions were babbling and verbose and it is clear from the lay evidence that I have heard from his parents that this is not a presentation triggered by the stress of having to give evidence, but the normal presentation of the plaintiff. This amounts to a very severe deficit in his present ability to successfully communicate with others and my layman’s description of his conduct is that he talks at people rather than with them. His father pin points it as a feature which in the family is handled by gently chiding, but one can readily see that this communication limitation has and will have the effect to which they particularly allude.

His father has sworn and I accept without hesitation that the plaintiff has become virtually friendliness and that he only has two friends, his father being one of them. This is a very understandable result of this plaintiff’s presentation. He is not interested in the views of others or the conversation of others. His interest seems to lie in talking at them. In his personal relations he has I am sure lost a very wide circle of friends. In his relationships with the opposite sex, the effect is I am sure devastating, and on the balance of probabilities I am persuaded that the plaintiff has no present or future chance of establishing a long term or permanent relationship with a member of the opposite sex, for the reason alluded to by his parents that a member of the opposite sex would shrink form (sic) his company out of the boredom. This consequence of personality change, has together with a serious short term memory deficit, been determinative of his many quite short periods of employment in various jobs from his return to work with Mr Walinski to the present time, and his many, many very brief relationships with the opposite sex from the time of the accident to the present time.

The plaintiff has a degree of insight into his problems and I am sure that insight is in itself an exasperating experience for him. He seeks to compensate by learned devices for his lack of short term memory, even to leaving his mobile telephone on the floor between his bed and the door, so he must as it were bump into it as he would set about leaving for work of a morning. But once at work the short term memory deficit means that if he is asked to do three things he will in fact perform the first of the three and forget what the others were, and return for further instructions as to what he has to do that he has forgotten.

I am positively of the view that the plaintiff’s demonstrated capacity to find employment for himself in a wide range of physical work until the present time flows from his underlying personal drive to be a contributor in the work. That which he has achieved on this evidence represents the maximum that he will ever be able to achieve, and that achievement is tinged with orthopaedic discomfort and over-shadowed by his personal disappointment that he at the best a carpenter’s labourer or general building labourer, when his role in life ought to be that of a qualified carpenter and Clerk of Works. He expressed in evidence the desire to move away from manual work where he feels he has a limited future and enter into the area of sales representative work. His father I am sure is a successful insurance salesman. Having listened to the plaintiff I thought this ambition quite unrealistic, despite his evidence of selling door to door in Western Australia and in Victoria, for the very reason that his father illustrated in evidence that to be a successful salesman one has to have the capacity to listen to and understand the customers’ needs and not talk constantly at them.

The plaintiff’s success, if you could describe it as that, in employment to the present time I am convinced is underpinned by the structured and loving environment provided for him at present. The plaintiff has expressed the desire or ambition to shortly leave home and set up in a flat with a young lady he refers to as “Fi”, who appears to have been his companion during his work seeking travel interstate.

The plaintiff’s description of his relationship with Fi at that time is limited. The court has had no evidence from Fi and that comment is not critical of the plaintiff’s case. The plaintiff’s fruit picking and thereafter employment venture with Fi in the state of Victoria came to a short and sorry end in circumstances given in evidence by the plaintiff, which I do not prepose to repeat in this judgment. The lady is described by the mother as a long term friend of the plaintiff, a bit wild, lovely and really fond of him, but my interpretation of the body language of the parents about the long term prospects of Fi or any other person being the plaintiff’s companion, coincide with my own judgment of the plaintiff’s future based upon my complete acceptance as reliable of the opinions of Doctor Rod Melton and Doctor Langeluddecke, consulting psychologist. Despite views expressed to the contrary in the medical evidence, which I do not accept, I am persuaded on the balance of probabilities that the plaintiff’s capacity to maintain an earning capacity is very much linked to his being assisted by a structured environment which will be provided by his parents for so long as he is prepared to stay with them, but will not be provided by short term essentially unsatisfactory relationships with the opposite sex which the plaintiff may enjoy in the future, because his track record from the accident to the present time demonstrates a common sequel to injury to the part of the brain where he has suffered injury, and that is the incapacity to form intimate relationships.

It is instructive to look at the plaintiff’s behaviour patterns at the present time as established through the evidence of his parents. During the working week his life must be disciplined because of the nature of the work that he does. His mother “Does” for him, as so many mothers do for their children, whether they need it or not. I am satisfied from the testimony of his parents that in fact he does need it. During the working week he is in need of a companion who will listen to him and his babbling conversation. His mother and father fulfil that role and he remains a home body during that period.

Of a Friday night his father serves as companion to accompany him to the local. For Saturday night he commences his companionship at Bilgola beach, where apparently a gathering of young people “hang”, from there proceeds to pubs and clubs and parties. The working week behaviour pattern is illustrative of that which his father speaks of, that he had ceased to have friends and there is an emotional dependence upon the home and father son and mother son relationship. If fortuity or personal decision take the plaintiff out of his present structured environment it will have to (sic) replaced by a substitute. In my view it is so highly unlikely that that structured substitute environment will arise form (sic) a long term relationship with a woman, that a need has been created for the provision of professional assistance to order the plaintiff in his day to day affairs and provide him with the companionship of a person who is prepared to listen kindly to what I suspect is an endless conversational flow. The view of Doctor Milton in this area, which I profoundly respect, is that should the family structure be withdrawn from the plaintiff he will need one of the creatures of yesteryear, a professional companion. I am sure this is so. If this structured environment is not provided for in the plaintiff’s future he will be what he now is, a friendless person virtually, driven outside his working hours to seek company on a daily basis in pubs and clubs where he will be tedious to those exposed to him and inevitably affected by an inappropriate level of liquor consumption. Once immured in that lifestyle the plaintiff’s reliability as an employee will in the natural course of events be diminished and his earning capacity will accordingly suffer.

The bench is often accused of living in ivory towers removed from the real world. This is rarely true, and it would be a poor Judge in my view, whose life experiences deprived him or her of the capacity to reasonably foresee the future of this particular young man without the benefit of a structured environment to support him.

The elements based upon the above finding of fact of any verdict for the plaintiff must provide awards for non-economic loss, past and future diminished earning capacity, and past and future care provided by a structured environment to support him, together with past and future necessary medical and the like support.

Non-Economic Loss


The plaintiff is still a very young person who could be fairly described as having the world at his feet prior to the subject accident. He could not have achieved what he achieved as a pupil at St Josephs without being a very special person spoken of in the references that followed him from that institution. His athletic prowess was such that at the time of leaving school that he was offered a placement in the Australian Institute of Sport. He had rejected that because of his deeply felt need to enter into the field of carpentry, which had become at a relatively early age a passionate interest.

I observe in passing that the capacity to be a carpenter is one thing. The passion to work with wood is another. I am satisfied from the plaintiff’s evidence that his desire to inherit his grandfather’s tools and skills as a carpenter represented the latter aspiration. It is quite clear from the lay and educational evidence before the court that the plaintiff was a natural leader and a person to whom others were drawn, and that he had a wide circle of friends and companions prior to the subject accident. His love of the sport of rowing had been continued into his early working life by his entering into the role of a rower of surf boats. His mother’s evidence satisfies me that he was a very popular young person at school, and she notes that they had a school religious service known as a mass for him every day after his accident. He was clearly an exuberant person. The activity on the evening of the accident that formed part of this disaster was but an example of the exuberance, and while the activity may be one that would bring frowns to the brows of some of us, one has to see it as part of the make-up of a young man who explained to one of his medical examiners that his favourite movie was Brave Heart, in which the Australian actor Mel Gibson starred, and in which the particular activity or “mooning” by an army of kilted highlanders provided an episode of high amusement in that spectacular film. He enjoyed the company of girl-friends and doubtless enjoyed the respect in which he was generally held in his employment and with his community generally. He was a superb athlete. One has to contrast that with what the plaintiff now is and will remain. I have referred to it in detail above, but I repeat its salient points.

(a) He is virtually a friendless person;

(b) He seem (sic) incapable of forming intimate relationships with the opposite sex

(c) He is a brain damaged person incapable of achieving that which he clearly would have achieved but for the accident and he is aware of it.

(d) He is a significantly damaged young person orthopaedically who has had to give up what must have been the love of his life, rowing in a surf boat crew, and windsurfing.

(e) He has totally lost his sense of smell and has but a scintilla of his sense of taste and has been permanently robbed of the pleasurable experience that those senses bring to the human being, and the capacity to protect himself from danger that those senses provide.

(f) He has lost the social skills that arise from having a normal capacity to memorise and self organise. This otherwise strong young man turned his face to the wall and broke down when questioned by his counsel about the experiences of returning to re-unions at his school because he cannot now remember the people who were around him in what must have been glorious days of school boy success, and his present day to day interactions with humanity are dogged by a loss of memory for the names of people that he knows he knows and all that flows from that.

(g) He has the insight to realise that most of the above is affecting him and to realise that these problems are with him for the rest of his life. Within the principles of assessment established in this area I am well satisfied that all of this amounts to a state of affairs which represents 80% of a most extreme case and this will be awarded accordingly.

*************

End Notes
1. Wynbergen v Hoyts Corporation Pty Ltd (1997) 129 ALR 25, 29.
2. Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, 493-494.
3. Cf Martin v Howard (1983) Tas.R 188

Revision Reasons
Hyperlinked End Notes added - 02/05/07