Fleissig v Teamfox Pty Ltd - [2001] NSWSC 286

CITATION: Fleissig v Teamfox Pty Ltd & Ors [2001] NSWSC 286

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 21227 of 1996

HEARING DATE(S): 21 - 25 February, 16 - 19 October, 23- 26 October, 30 - 31 October, 1 November 2000.

JUDGMENT DATE:
19 April 2001

PARTIES :

Eric Fleissig
v
Teamfox Pty Limited
(First defendant)
Philip James Ward
(Second defendant)
Lopired Pty Limited
(Third defendant)
Oran Park Motor Sport Pty Limited
(Fourth defendant)

JUDGMENT OF: Brownie AJ at 1

LOWER COURT
JURISDICTION : Compensation Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER :

COUNSEL :
P Neil SC
J L Carr
(Plaintiff)
G Charteris
(First defendant)
In person
(Second and Third defendants)
R McIlwaine SC
(Fourth defendant)

SOLICITORS:
Bateman Battersby
(Plaintiff)
P W Turk & Associates
(First defendant)
P J Ward
(In person - Second and Third defendants)
Marsdens
(Fourth defendant)

CATCHWORDS: Voluntary assumption of risk considered : Paras 27 - 35 - otherwise no question of principle.

LEGISLATION CITED: Motor Vehicle Safety Sports (Public Safety) Act 1982, s 3 and s8; Motor Vehicle Sports (Public Safety) Regulation 1985, cl 5, cl14 and cl35; Workers Compensation Act 1987, s151G, 151H; Contracts Review Act 1980.

CASES CITED: Buckpitt v Oates [1968] 1 All ER 1145 at 1147; Bennett v Tugwell [1971] 2 QB 267 at 273-274; Bright v Sampson & Duncan Enterprises Pty Limited (1985) 1 NSWLR 346.

DECISION: See paragraph 180.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BROWNIE AJ

Thursday, 19 April 2001

21227 OF 1996 ERIC FLEISSIG v TEAMFOX PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff sues for damages for personal injuries sustained on 11 March 1992, when taking part in a go-kart race at the Oran Park Raceway. As he drove his kart into a bend called Champion Corner, the kart ahead suddenly lost speed. The two karts collided, the plaintiff’s kart overturned, and the plaintiff was thrown against a concrete wall bordering the racetrack on the outer side of the bend.

2 The raceway was used for different forms of motor vehicle racing: racing cars, production cars, trucks, motor cycles and go-karts. Depending upon the type of vehicles being raced on any given occasion, part only of the overall track was used, and the remainder was blocked off. Champion Corner, which is sometimes called Bitupave Corner, was located in a section of the track used for various forms of racing.

3 Vehicle speeds are continually increasing, and safety standards progressively evolving, and of course this case has to be judged according to the standards prevailing at the time of the plaintiff’s accident. The plaintiff tendered reports from two expert witnesses, Mr Tindall and Dr Olsen, neither of whom was required for cross-examination, and it is appropriate to accept most, if not all of what they said.

4 The nature of motor vehicle racing means that accidents will happen from time to time, so that good practice required steps to be taken to avoid or minimise the risk of injuries to drivers when an accident did occur; and the steps that should have been taken varied according to the nature of the vehicles being raced. In the main, the steps to be taken related to the absorption of energy generated by speeding vehicles, in such a way as to protect the drivers from injury upon impact. A go-kart driver, unlike a car or truck driver, has no surrounding vehicle framework to provide protection, so that what was principally needed was space within which to decelerate.

5 There was a concrete wall, 1.05 metres high, on the outer side of the track at Champion Corner, and for some distance on either side of that bend. Some time before the plaintiff’s accident, protective pads had been placed on the inner or track side of that wall, during motor cycle races. The padding was removed for car and truck races, because the padding provided little or no protection to a car or truck driver, but would be likely to be damaged, or even destroyed, if struck by a car or truck. A good deal of the debate about liability in the present case concerned the question whether the padding should have been in position during go-kart races in general, and during the race in which the plaintiff was injured in particular.

6 The plaintiff sued four defendants. The fourth defendant, Oran Park Motor Sport Pty Limited (“OPMS”) was the occupier of the premises where the raceway was located. A Mr Halligan “of L.T.R. Properties Oran Park Pty Limited” held a licence under the provisions of the Motor Vehicle Sports (Public Safety) Act 1982 (“the Sports Act”), permitting motor vehicle racing to take place on the premises. The relationship between OPMS on the one hand and Mr Halligan and his company on the other hand was not the subject of any evidence or submission, but the existence of the licence and the circumstances surrounding its annual renewal were treated as important.

7 OPMS hired the premises out to others from time to time, for the purposes of motor vehicle racing, and the third defendant, Lopired Pty Limited (“Lopired”), hired the premises from OPMS frequently, and regularly. The second defendant, Mr Ward, was a shareholder in, and, it seems likely, the person who solely controlled the affairs of both Lopired and the first defendant, Teamfox Pty Limited (“Teamfox”). The affairs of Lopired and Teamfox were intermingled, and the affairs of Mr Ward personally were also, to some extent, intermingled with the affairs of his two companies.

8 Lopired conducted functions called “corporate days” at the raceway, approximately once a month. On these occasions members of the public attended, and Lopired was paid to provide go-kart racing facilities, including the provision of go-karts and safety helmets, when needed. Mr Ward personally played a significant role in these events, particularly so far as concerned the actual racing.

9 At the time of his accident, the plaintiff was employed generally by Teamfox. He asserts, and Teamfox denies, that on the day in question he raced in the course of his employment.

10 When a licence under the provisions of the Sports Act fell due for renewal, officers of the relevant government department obtained a report from police officers, and consulted with those governing bodies of the relevant sports, nominated in clause 35 of the Motor Vehicle Sports (Public Safety) Regulation 1985 (“the Regulation”). It seems to be clear that each of these bodies provided input as to what was required by way of safety precautions generally, so far as concerned the sport which the relevant body controlled, and that the department made recommendations to the Minister, who in due course issued a licence which might incorporate ideas thrown up by the police or by the governing bodies. The procedure followed seems to have been quite a detailed, careful one, involving amongst other things inspections of the raceway premises.

11 Some considerable time before the plaintiff’s accident, the Auto Cycle Union (“the ACU”), which was the controlling body for motor cycle racing, took steps to see that padding was provided at and near Champion Corner during motor cycle racing. Initially, the padding consisted of pads approximately the shape of mattresses which were manually placed beside the wall before motor cycle racing, and manually removed before other forms of racing began. However, by 1 July 1991, when the licence was last renewed before the plaintiff’s accident, those pads had been suspended from a wire running on top of the wall, so that the pads could be readily flipped from one side of the wall to the other, depending upon what vehicles were about to be raced. The operation of flipping the pads from one side of the wall to the other only took about five minutes.

12 The plaintiff contends that the pads should have been in position during go-kart racing, and the defendants dispute this. The evidence establishes that the pads were the property of the ACU, and also that the body which controlled go-kart racing, called New South Wales Karting Association in the Regulation, but Australian Karting Association or AKA in evidence (no party contended that the distinction was significant) did not make any recommendation to the department for the provision of pads during go-kart racing, and there was no provision made in the licence requiring the pads to be used during go-kart racing.

13 There was a dispute between Mr Colgan of OPMS and Mr Ward about what had passed between these two men concerning the provision of padding for go-kart racing, prior to the plaintiff’s accident. On this topic the evidence of Mr Colgan seems to me to be more likely to be reliable. He said that he had discussed the pads with Mr Ward and had told Mr Ward that the pads were the property of the ACU, and that it would be necessary for Mr Ward to obtain the permission of the ACU for the pads to be used in go-kart racing; and he also said that he had seen the pads being used during go-kart races on more than one occasion prior to the date of the plaintiff’s accident, when racing was conducted under the aegis of Mr Ward.

14 I accept also that the pads were in position on the day of the accident, but placed on the outer side of the wall. Although Mr Ward denied this, other witnesses said they saw the padding, namely Mr Watters and Mr Smith, and it seems to me that it can be seen in the video tape, Exhibit E.

15 I do not think that it is really very important what the conditions attached the licence required or did not require. The question is whether the various defendants were negligent. The conditions attached to the licence did not mention the use of pads during motor cycle racing, but all parties apparently accept that it was appropriate that they be used then. Proceeding on the basis that they were physically there, but flipped over onto the outer side of the wall, and viewing the case as throwing up an allegation that the defendants were negligent, the question posed is whether the defendants, or one or more of them, should have flipped the pads over so that they were on the track or inner side of the wall; or whether they should have not permitted the race to take place without those pads or some other form of protection in position. On the evidence, none of the defendants ever sought the permission of the ACU to use the pads owned by the ACU; and one cannot say what fee, if any, the ACU would have sought for the use of its pads, or whether the ACU, if asked, would have consented to the use of its pads. On the evidence of Mr Colgan, they had been used in the past, on the occasion of go-kart racing, but perhaps without the knowledge or consent of the ACU.

16 It was plainly foreseeable, and had been foreseen, that if there was a collision at or near Champion Corner, in some form of motor vehicle racing, a driver might sustain injury by impact with the wall. That danger could have been prevented, and the risk of injury could have been greatly reduced, if not entirely eliminated, by the simple expedient of putting the pads into position against the wall. As I have said, the evidence suggests that no one ever asked the ACU for permission to use its pads, but assuming the ACU refused that permission, then the risk of injury could have been averted or minimised, and the extent of any possible injury greatly diminished, if not eliminated, either by putting other pads into position against the wall, or by not racing until something equivalent was done.

17 One argument advanced on behalf of the defendants was that it would have been illegal to put the pads into position during go-kart racing, because that would have been to use the raceway in a manner that was inconsistent with the terms of the licence. The premises the subject of the licence were a motor vehicle racing ground, as defined in section 3 of the Sports Act; and section 8 made it an offence to hold, promote or organise a race meeting otherwise than in accordance with the conditions of the relevant licence. Clause 14 of the Regulation provided that the licensee contravened the Regulation if any alterations or additions were made to the ground, i.e. the motor vehicle racing ground, without the approval of the Minister, or otherwise in accordance with the licence conditions. The argument advanced was that there was no approval by the Minister (a matter assumed, rather than proved), and that the licence did not permit any “alteration” or “addition” to the ground. The argument referred to clause 5 of the Regulation, which required an application for an initial licence to be accompanied by plans and specifications for the ground, showing amongst other things the width of the track, and any safety devices.

18 I do not accept the argument. First, there was no condition of the licence relating to the width of the track, or dealing with safety devices of the kind under consideration. Secondly, whilst the presence of the pads would have effectively reduced by some small number of centimetres the width of the track (about 14 metres), nothing in the legislation or the licence conditions prohibited the taking of otherwise sensible safety precautions. Thirdly, I doubt that reducing the track width in this way amounted to altering the ground. Fourthly, clause 14 was directed only to the licensee, Mr Halligan, and not to the defendants. And for what it is worth, nobody seems to have been concerned at the use of the pads during motor cycle racing, notwithstanding the argument now advanced.

19 In any event, I repeat: the question is not whether the conditions attached to the licence were complied with, but whether the defendants were negligent. Compliance with the conditions attached to the licence is no doubt a relevant consideration, but it does not govern exclusively the issue whether negligence has been established; and if the race could not have been conducted safely, it should not have been conducted at all, until the licence conditions were amended.

20 In any event, the plaintiff’s case is stronger than is reflected by this debate. On the reports of his experts, there should not have been a concrete wall at or near Champion Corner at all. This proposition was not contested, and after the accident, someone - perhaps OPMS - completely removed both the wall and the earth bank which lay behind it, substituting an area of soft earth, generally flat and level, but with a corrugated surface, so that a driver whose vehicle was involved in an accident at that corner now skids to a stop across this surface, rather than violently striking the wall. The risk of injury is thereby greatly diminished, and if an injury is sustained, it is likely to be a relatively slight one.

21 Further, the plaintiff’s expert witnesses said that if there had to be a wall at the corner, whether made of concrete or some other hard substance, the wall and the track should have been designed so that a driver approached the wall at an angle of less than 45 degrees, with the consequence that if a driver struck the wall, the driver would tend to be deflected by the wall. However, as the wall stood in 1992, drivers approached it at an angle of greater that 45 degrees, so that a driver striking the wall would tend to rebound, rather than be deflected. That is, the driver’s body would decelerate much more quickly, with a greater risk of injury, and a greater risk that an injury sustained would be a severe one. This part of the plaintiff’s case remained completely unanswered.

22 In short, any of the defendants who owed the plaintiff a duty of care breached that duty.

23 The plaintiff also asserted that Teamfox, Mr Ward and Lopired were negligent in that Mr Ward had placed the plaintiff in a race with relatively experienced go-kart drivers, whilst he was inexperienced; that what experience he had was substantially limited to the go-karts used at an indoor racetrack at St Mary’s where the plaintiff worked for Teamfox; and this claim was supplemented by an allegation that there were significant differences between those go-karts and the go-karts used at the outdoor raceway at Oran Park. For the reasons discussed below, when dealing with the allegations of contributory negligence, I reject this part of the plaintiff’s case.

24 Each of the defendants asserted that the plaintiff voluntarily assumed the risk of injury, but I put that question aside for the moment, and consider the case in the absence of those assertions. Generally speaking, OPMS was the occupier of the raceway premises, and hired those premises out for the purposes of go-kart and other motor vehicle racing. Similarly, Lopired conducted go-kart races for financial reward, and each of these companies plainly owed the plaintiff a duty of care. Mr Ward personally involved himself in the active organisation and conduct of the races on the date of the accident. That is, he also owed the plaintiff a duty of care.

25 The position of Teamfox is rather different. In the main, the plaintiff worked at Teamfox’s indoor go-kart facility at St Mary’s, as the manager of that facility. However, to summarise part of the evidence of Mr Ward, a significant part of the plaintiff’s time there involved him in taking bookings for and answering inquiries about Lopired’s activities at Oran Park; it was important for the plaintiff, as an employee of Teamfox, to be able to deal proficiently with inquiries about Lopired’s activities at Oran Park; participating in races at Oran Park improved the plaintiff’s knowledge of what happened at Oran Park, so as to assist him to make those bookings and answer those inquiries proficiently; he went to Oran Park on corporate days sometimes, and whilst there promoted the activities of the indoor facility of Teamfox at St Mary’s; on the day of the accident he was at Oran Park under the direct control of Mr Ward who gave him instructions what to do and how to do it; and he drove a go-kart provided to him for the race, because he was an employee of Teamfox, rather than a fee-paying customer of Lopired.

26 It is true that the plaintiff had asked Mr Ward on several prior occasions if he might race at Oran Park, and that Mr Ward had always refused, until the occasion of the day of the accident, when not many people had booked to attend at the corporate day, but this does not mean, as Teamfox submitted, that the plaintiff had somehow departed from the course of his employment, as if on a frolic of his own. I find that he took part in the race in the course of his employment, and in circumstances where, prima facie, Teamfox owed him a duty of care, as employer.

27 Teamfox and OPMS both asserted that the plaintiff voluntarily assumed the risk of injury. (If proved, this would amount to a defence on the part of OPMS, but only to the equivalent of contributory negligence so far as concerned Teamfox: see s 1510 of the Workers Compensation Act 1987.) These defendants established that the plaintiff was generally aware that go-kart racing was a dangerous sport, but they did not establish that the plaintiff knew of, much less that he voluntarily assumed the risk that he would be injured by reason of the breaches of duty discussed above. These allegations fail.

28 Lopired and Mr Ward also pleaded that the plaintiff had voluntarily assumed the risk of injury, but their allegations started from a different point. They asserted, and I accept, that on the day before the accident the plaintiff signed a form entitled “Waiver and Indemnity Agreement”, Exhibit 15.

29 The respective Notices of Grounds of Defence filed by these defendants were rather unconventional, but in the course of the hearing I ruled that they did raise the defence of voluntary assumption of risk, that is, they denied the existence of a duty of care, because of the plaintiff’s execution of the agreement mentioned. Even if the pleadings lacked proper specificity, the relevant defendants made it clear that they wanted to raise this defence, so that it would have been appropriate to grant leave to amend the pleadings, if I had given a different ruling.

30 There was an issue of fact as to whether the plaintiff did sign Exhibit 15 on the day before the accident, as the defendants asserted, or whether he signed it some weeks later, under duress. I accept the evidence of Mr Cowan, whom I regard as a truthful and reliable witness, and who witnessed the plaintiff’s signature; and independently of that, on this topic, I prefer the evidence of Mr Ward, generally to the same effect as that of Mr Cowan, to the evidence of the plaintiff.

31 It was the practice of Teamfox to require people wanting to ride go-karts at the St Mary’s facility to sign a document in a generally similar form, and part of the plaintiff’s duties as manager at St Mary’s was to supervise the work of other employees of Teamfox, who had to obtain these forms from Teamfox’s customers. Similarly, Lopired required people participating in its corporate days to sign forms, similar in content to Exhibit 15. The contract between OPMS and Lopired required Lopired to act generally along these lines.

32 The plaintiff disputes that the legal effect of Exhibit 15 is to give rise to the defence of voluntary assumption of risk. The document is verbose, but in my view it operates in the manner contended for by the relevant defendants. It provides, in summary, that in consideration of the acceptance of the plaintiff’s application to participate, he agreed to indemnify the relevant defendants from all claims, etc, whether or not caused by negligence or other breach of duty. The form provided that the plaintiff waived and released all possible claims against these defendants, again whether or not arising out of negligence; and then the plaintiff covenanted to indemnify these defendants against any liability that might arise, again whether or not caused by negligence.

33 The case is one where there is an express statement by the plaintiff, to the effect that he took the risk of injury “howsoever caused”, arising out of the negligence of the relevant defendants, rather than the far more commonly encountered case where a defendant points to circumstances said to lead to an inference that the plaintiff voluntarily assumed the risk of injury. The plaintiff argued that the “contract” was not supported by consideration. It commenced: “In consideration of the acceptance of my application to take part as competitor…” in a race, but Mr Ward forebade the plaintiff to overtake other participants, so that, the plaintiff said, he was not truly a competitor in the race. Mr Ward appeared in person, and also represented Lopired, and he did not respond to the submission, but I do not accept it as correct.

34 First, the contract in question was made on the day before the accident, whereas Mr Ward’s prohibition on overtaking was given later, after the time that the contract was made; the plaintiff wanted to compete in a race (or races), and intended to compete, and the instruction given to him later can hardly mean that the contract already formed ceased to exist. Secondly, the argument attributes to the word “competitor” a degree of technicality and precision which seems artificial, and inappropriate. Thirdly, the plaintiff chose not to comply with Mr Ward’s instruction: it was his act of overtaking that was one of the causes of the accident. Fourthly, I so not accept that the presence of consideration is essential, or that the contract had to be legally binding: Buckpitt v Oates [1968] 1 All ER 1145 at 1147, Bennett v Tugwell [1971] 2 QB 267 at 273-274. The plaintiff knew, from his own past work experience, that he could not race unless he signed an appropriate form, and he therefore signed it.

35 Next, the plaintiff relied on the decision in Bright v Sampson and Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346, saying that the form operated to exclude liability for one category of negligence, but not another. I do not accept this, as a matter of construction of the form, but in any event that decision was concerned, not with a defence of voluntary assumption of risk, but with the proper construction of a term of a contract permitting the plaintiff to enter the defendant’s premises and to use the defendant’s facilities, upon terms that purported to exclude liability.

36 Finally, as to this part of the case, the plaintiff relied upon the provisions of the Contracts Review Act 1980. Again, Mr Ward did not respond to submission. I doubt that this Act applies, but will assume that it does. Finding that the plaintiff signed the contract on the day before his accident, as described by Mr Cowan, and because the plaintiff wanted to race at Oran Park, that he knew that in order to do so he was expected to sign the document, and had had prior experience in seeing to it that others signed similar forms before racing at St Mary’s, I do not consider that the contract, or any of its provisions, was unjust in the circumstances relating to the contract at the time it was made. Any form of motor vehicle racing is apt to be dangerous, and those who wish to race can hardly be surprised if those organising a race wish to exclude all liability connected with the race. That does not seem to me, by itself, to be “unjust”. It may be no more than part of the price to be paid, to be allowed to take advantage of the organiser’s work. As a matter of theory, one might say that the organiser is better placed than the participants to distribute loss through insurance, but the evidence here does not permit me to find that as a fact.

37 Assuming however that the contract or some provision in it was unjust, I do not consider that it would be just to make an order of kind now sought. It was the plaintiff who initiated the request to race, knowing that he would be expected to sign the contract. If it is relevant, I infer that Mr Ward and Mr Lopired are uninsured, and without significant funds; and the plaintiff has adequate remedies against both Teamfox and OPMS.

38 I conclude therefore that Mr Ward and Lopired have made good this ground of defence, but that the plaintiff has made good his case against Teamfox and OPMS. Those defendants (like the other defendants) raise a defence of contributory negligence, but it is convenient to deal first with the various cross-claims.

39 OPMS brought cross-claims against each of the other defendants, seeking contribution as between tortfeasors. This claim succeeds as against Teamfox, but fails as against Mr Ward and Lopired, because, in the circumstances I have found, they owed no duty of care to the plaintiff. As between OPMS and Teamfox, I think that the appropriate finding is that these defendants should bear equal responsibility for the damage (subject to the provisions of s 151Z of the Workers Compensation Act 1987). OPMS had the greater control of the raceway and its operations, being the entity having a relatively long-term, uninterrupted opportunity to see what was happening, and to take steps to prevent loss, but Teamfox was, through Mr Ward, present on the day of the accident, and as employer of the plaintiff, it owed him a duty of care, particular to the one race. That is, at the time of the race and in the period just before it, Teamfox had a duty to take care for the safety of the plaintiff; but in truth it seems to have done little or nothing relevant to protect him from the risk of injury thrown up by the unpadded concrete wall.

40 There is one other cross-claim, brought by OPMS against Lopired, for contractual indemnity. Again, there is a factual dispute between Mr Colgan of OPMS and Mr Ward as to what were the relevant facts, and, again, I prefer the evidence of Mr Colgan. Lopired hired the premises from OPMS approximately once a month. It was the practice of OPMS to send out to hirers such as Lopired a standard form of agreement. Exhibit 35 is such a form, although that particular form came into existence some time after 1992. The form in use in 1992 was apparently not significantly different. It had been the practice of OPMS for some years before 1992, having indicated to Mr Ward that the raceway was available for hire on a specified date, to send to Mr Ward on behalf of Lopired the relevant form. Mr Ward caused it to be returned, duly completed, together with a cheque in favour of OPMS for the hiring fee. Sometimes the completed form and cheque were returned to OPMS after the event in question, but the form and the cheque always arrived in time, without any protest, question or debate. Sometimes a date for which a booking had been made was changed, and the practice then was to procure a fresh signed form. Again, these forms were returned, without demur. Mr Colgan said, without challenge, that OPMS expected to receive the hiring fee, and always received it; and that it expected to receive the completed form from Lopired.

41 It was the case of OPMS that the relevant forms for 1992 had been lost. The evidence as to this is scarcely convincing, considered by itself, but there is really nothing to the contrary, except the assertion by Mr Ward that he never saw such a form before. However, it seems to me that in all the circumstances it would be wrong not to accept the general thrust of Mr Colgan’s evidence, as to the standard procedure that was adopted as between OPMS and Lopired concerning the routine hiring of the premises. I find therefore that the terms of the contract between OPMS and Lopired concerning the hire of the raceway on the occasion of the plaintiff’s accident included terms, generally to the effect provided for in Exhibit 35, providing that Lopired promised to indemnify OPMS against, amongst other things, OPMS’s liability to the plaintiff.

42 I deal next with two related sets of issues, namely the plaintiff’s allegations that Teamfox, Mr Ward and Lopired acted negligently, in placing the plaintiff in a race amongst experienced drivers, and the defendants’ assertions that the plaintiff was guilty of contributory negligence. In this context the plaintiff was at a tactical disadvantage, in that he said he had no recollection of the events of the day of his accident, so that he was in difficulties in effectively challenging the case advanced by the defendants.

43 The proposition that he had significant pre- and post-accident amnesia was an important aspect of his case in damages, since it constituted one of the circumstances said to lead to the conclusion that he had suffered significant brain damage. I will deal with this issue in more detail, when dealing with the question of damages, but I should say now that I do not accept the plaintiff’s evidence that he remembered nothing of the events of the day of the accident. In particular, that statement is inconsistent with his own written statement, Exhibit D, prepared, it seems, by his solicitors pursuant to a direction of the court and tendered as part of his case; and it is very difficult, if not impossible, to reconcile his oral evidence, denying a recollection of any event on the day of the accident, with his statements made on the day of the accident, recorded in the ambulance and hospital records.

44 The starting point for these allegations of negligence, made in the plaintiff’s case, was that the plaintiff was inexperienced at driving go-karts. In my judgment, the contrary is clearly established, particularly by evidence of Messrs Cowan, White and Cameron, each of whom I accept as truthful and generally reliable. Whilst I do not accept the whole of the evidence of Mr Ward, I do accept his evidence on this topic. I also accept the evidence of Ms Sawyers on this topic. Perhaps the most telling point against the plaintiff, in this context, is the evidence of Mr White, explaining what can be seen on the video tape of the race in which the plaintiff was injured, Exhibit E.

45 There were undoubtedly differences between the indoor track at St Mary’s and the outdoor track at Oran Park. For example, the St Mary’s track was bordered with tyres, calculated to protect drivers as well as to keep their karts on the track, whereas the Oran Park track lacked any such feature; overtaking was generally impermissible if not impossible at St Mary’s, whereas it was often possible to overtake at Oran Park, and overtaking seems to have been regarded by most drivers as an ordinary incident of racing; and greater speeds were achieved at Oran Park. However, viewing the matter as a whole, these differences do not seem to me to be significant, in terms of any of the issues now under consideration, except for the presence of tyres at the St Mary’s track and the lack of them at Oran Park. If that circumstance stood by itself, then Teamfox and OPSM would have been on stronger ground in relation to their defence of voluntary assumption of risk, but, of course, this circumstance does not stand in isolation. The plaintiff contended that there were substantial and significant differences between the go-karts used at the two tracks, but I reject this part of the plaintiff’s case also. There was one obvious difference, in that the karts used for indoor racing had four stroke engines, whereas the karts used for outdoor racing had two stroke engines, but this difference arose from environmental considerations: two stoke engines produced so much exhaust that they were by reason of that circumstance unsuited for use indoors.

46 There were some other, relatively minor differences, perhaps partly or wholly consequential upon this difference. However, it is not accurate to say, as the plaintiff said, that karts used for outdoor racing were very much faster than those used for indoor racing. Nor does it seem to be accurate to say that there was any significant difference, causally related to the accident, arising out of any difference in the mechanical operations of the two sets of karts. I prefer the evidence of Messrs White and Cowan to that of the plaintiff in relation to these issues.

47 I accept also that the plaintiff had much greater experience and skill than he acknowledged, both in relation to motor vehicle sports generally, and in relation to go-kart driving in particular. I accept the evidence of Mr Cameron, corroborated to some extent as it is by the entries in the plaintiff’s diary, to the general effect that prior to the plaintiff’s accident Mr Cameron sold the plaintiff a go-kart that was “a proper racing machine”. I do not overlook the concessions made by Mr Cameron in cross-examination, that his written statement, Exhibit 34, prepared by some investigator, went too far as to a number of matters.

48 On the day of the plaintiff’s accident, races were arranged in three categories, called “A”, “B” and “C”, these being references in descending order to the supposed skill and experience of the participating drivers, and the plaintiff was placed in a category “A” race. I find that there was nothing inappropriate, much less negligent about this.

49 As to contributory negligence, Mr Ward said that on the day of the accident he instructed the plaintiff, as an employee, that he was not to overtake other drivers, that is the paying customers. This instruction has to be seen in the context that each race started with the karts already in motion, and with the drivers placed in designated positions relative to each other: it was “a rolling start”. On Mr Ward’s evidence the plaintiff started at the back of the field, with instructions to stay there, and not to overtake. Remembering my rejection of some parts of Mr Ward’s evidence, and recognising the forensic difficulties of the plaintiff flowing from his assertion that he could not remember any of the events of the day of the accident, I accept this evidence by Mr Ward.

50 In particular I find, particularly by reference to the evidence of Mr White, but also by reference to the evidence of Mr Ward and to the history given to Dr. Anderson (that the plaintiff had been advised to work his way up the field, from the back of the grid), that the plaintiff disobeyed those instructions. For present purposes it is of little more than historical interest that the plaintiff overtook other drivers at different times. What is significant now is the fact that the impact between the plaintiff’s kart and the kart ahead of the plaintiff occurred as the plaintiff attempted to overtake that other kart. The parties agree that during a go-kart race, a kart might suddenly lose speed, without warning, at virtually any time. One may predict that this will happen from time to time, but not when it will happen, and the slowing down of the kart ahead of the plaintiff, as the two karts entered Champion Corner, was an unpredictable or “random” event. It was one of the events that the parties ought to have had in contemplation, although no one could have predicted that it would happen at that spot or at that moment. However, I accept the evidence of Mr White, given by reference to the video tape Exhibit E, that when the kart ahead of the plaintiff slowed down, the plaintiff then attempted to overtake it.

51 If one had to apportion responsibility for the collision between the two karts, one would have to say that the plaintiff was significantly to blame. However, that is not the relevant inquiry. Rather, I have to inquire into the plaintiff’s share in the responsibility for the damage, and in this case the damage consists of the plaintiff’s injuries and their sequelae. As the evidence of Mr Tindall and Dr Olsen, in particular, makes clear, far and away the greatest contributing factor towards that damage was the presence of the unguarded concrete wall, in close proximity to the track, and to the position at which the collision between the two karts occurred. If the wall had not been there, there would have been little or no injury sustained. If the wall had been at a different angle to the track, the injuries would have been much less severe. If the wall had been effectively padded, the injuries would, once again, have been much less severe, and perhaps only trivial.

52 There was some debate as to whether the pads would have been effective to prevent the plaintiff being injured. To some extent, the evidence of Mr Tindall and Dr Olsen is undermined by the assumptions they made about the plaintiff’s speed just before his kart collided with the other kart, these assumptions being in my judgment effectively contradicted by the evidence of Mr White in particular, but the central thrust of what they say is the only evidence on the subject. Speculation that the pads might not have been effective is, on a proper view of the whole of the evidence, just that: speculation. The evidence is not entirely satisfactory, but doing my best with what evidence there is, I hold that the plaintiff’s damages should be reduced by 10%, having regard to his share in the responsibility for the damage.

53 There was some evidence that there were no marshals, or an insufficient number of marshals, at the race track at the time of the accident. This seems to have been a breach, or at least an aspect of a breach of a duty of care, but the evidence does not establish a causal connection between this breach and the plaintiff’s accident.

54 There is no question but that that the plaintiff was seriously injured: apart from soft tissue injuries and a fracture of the right wrist, all of which healed without residual disability, he sustained fractures of four spinal vertebrae and some brain damage. However, it is equally plain that he has exaggerated his disabilities, deliberately and fraudulently. The evidence of fraud is uncommonly voluminous, clear and persuasive. In this context, the plaintiff might be described as having been doubly unfortunate. His case was that, since the accident, he has been unemployed and unemployable, and that he has needed a great deal of domestic assistance. However, some years after the accident, Mr Ward was approached by a Mr Chironna, who said that the plaintiff had worked for (or with) him, as a cleaner; and Mr Chironna handed to Mr Ward some video tapes. These were apparently taken by someone responsible for the security arrangements at the Summer Hill Hotel, and they showed the plaintiff working at that hotel as a cleaner on a number of different shifts. Whilst each shift appears to have been of only a short duration, the tapes showed the plaintiff performing fairly heavy physical work, repetitively, and without any apparent difficulty, and together with the other evidence, they serve to destroy his case that he was unemployable, or unemployed.

55 Additionally, the plaintiff asserted that he had been provided with domestic assistance by Ms Sharyn Sawyers, who was his girlfriend at the time of the accident, and his de facto wife later on. He said that she looked after him on a virtually full time basis for about a year after the accident, with the level of care subsequently reducing. However, after she had lived with him (intermittently) for some years, and borne two children by him, their relationship ended and she gave evidence for the defendants, corroborating some parts of his evidence, but contradicting him on several significant topics. In particular, she said that at and just after the date of the accident she was employed, but lost no time from work looking after him; and it seems obvious that she provided the defendants with other video tapes as well as some still photographs, showing various activities of the plaintiff, inconsistent with his case.

56 The net result of all this was that the trial became quite prolonged, as a multitude of details came to be disputed, and these details were explored in evidence. In the end, the plaintiff’s credibility was so damaged that I do not think it would be safe to rely upon anything he said, either in evidence or in statements made out of court, unless and except to the extent that his statements were corroborated.

57 The claim for damages turned in part upon the disabilities resulting from his undoubtedly severe spinal injuries, and in greater part upon the disabilities resulting from his brain damage. It is of course necessary to consider the totality of his disabilities, as they affect him as a whole, but it is convenient to begin by considering separately the disabilities resulting from the back injuries, and then to consider the disabilities resulting from the brain damage.

58 The plaintiff was taken by ambulance from the scene of the accident at Oran Park to Camden District Hospital, where he remained for some hours before being discharged. He then spent some two days at home before being taken to Mt Druitt Hospital on the night of 13 March 1992. Since there was no “orthopaedic cover” at that hospital over a weekend, he was transferred the next day to Westmead Hospital. He remained a patient there from 14 to 21 March 1992, and was subsequently seen at the fracture clinic attached to that hospital on six occasions over the next year. He appears to have been treated by two orthopaedic specialists: Dr Bokor initially, and later Dr Cummine.

59 The early medical records are a little difficult to follow, but it seems clear enough that the plaintiff sustained fractures at the C7, T1, T4 and T6 levels. On 18 March Dr Cummine wrote to Dr Bokor, reporting that Dr Cummine had cleared the plaintiff to sit up and get out of bed and “within pain limits commence ambulation”. He recorded a statement that the plaintiff ran his own business and was keen to return to work, predominantly clerical and sedentary work, and Dr Cummine expressed the hope that he would be able to clear the plaintiff to do this “sometime through next week”. The letter concluded with the expression that the plaintiff “has certainly been a lucky man”. No doubt this has to be read as referring to the severity of the plaintiff’s spinal injuries. On 21 March Dr Cummine reported that the plaintiff was “suitable for discharge, ambulant”. The nursing notes record that on that day, before discharge, he had gone by himself to a balcony to smoke, had showered himself, and that upon discharge that day he was to be picked up by his girlfriend.

60 Over the next twelve months, the plaintiff attended at the fracture clinic on six occasions, but seems to have been given little or nothing by way of treatment. A note in the hospital records states that the plaintiff said that Dr Cummine had advised that physiotherapy was “too dangerous”, and therefore that no appointment had been made for the plaintiff to have physiotherapy, but Dr Cummine recorded that the plaintiff had said that he was living with his discomfort, and avoiding drugs, and that he had ceased having physiotherapy because he did not find it helpful. In May 1993 Dr Cummine recommended that he “continue activities within discomfort limits”; that there was union of all fractures; that no additional treatment was indicated; and that there was some risk of the future development of post traumatic degenerative disc disease.

61 This is to be contrasted with the histories given to others. For example, the plaintiff told Dr Searle, an orthopaedic surgeon retained by the plaintiff’s solicitors to report, that he was kept in bed and given pethidine for about three weeks, that he asked to be allowed to go home, was discharged in a wheelchair, and at home had to be helped to the toilet; that after about another month he was able to walk alone, but it was very painful; that as late as 1999 he still required physiotherapy every second day; and that he had to lie on the floor each afternoon to relieve the pain.

62 In examination-in-chief, he said that during the first six months after discharge from hospital he was unable to “walk, move, do anything”, and could not even go to the toilet on his own; and he stated as the reason that Ms Sawyers moved in to live with him was to look after him:

“The doctors would not release me unless there was somebody at home.”

63 He said that she “quit her job to stay with me, done everything, washing clothes, dressed me, went with me to the toilet, helped with showers and stuff like that”. He said that she did this every day, all day, for twelve months, although he was a little more mobile during the second half of this period. Asked about the expression “all day”, he said that she spent four to six hours per day doing these things. He then said that in the second year after the accident he was a little better, but that there were some days when he could not get out of bed.

64 He described receiving social security benefits, and said that, having difficulties sleeping at night, he had assisted a friend on one occasion, doing cleaning work: he went along not to work, but to keep the friend company, but that whilst there he had tried unsuccessfully to use a vacuum cleaner. He was not paid anything for what he did.

65 He also described visiting another friend in a computer shop in 1995, perhaps for a week:

“I just hung around for the experience.”

66 He also said that Ms Sawyers bought a second-hand business in 1998, after which he tried to do things for her, including driving a truck but not making deliveries. He said that he had tried riding a motorcycle once, apparently about the end of 1999, and spoke of trying to ride a go-kart once, in about 1995, but he had been unable to persist with either of these activities. Ms Sawyers had done a great deal to look after him until their relationship ended; and later he formed a relationship with a Ms Wagner, who thereafter provided him with a great deal of necessary domestic assistance.

67 Unhappily for the plaintiff now, he and Ms Sawyers went on a picnic on 27 March 1992, six days after his discharge from hospital, and they video taped various activities of each other on that day. By itself, the video tape is damaging to the plaintiff’s case about the level of his physical incapacity, but coupled with his evidence in cross-examination of the events of this day, it is very damaging to his credit. It shows him with his wrist still in plaster, and moving about in a way which is somewhat restricted, and not doing anything at all strenuous. To deal with only one of the aspects shown on the tape and explored in evidence, he started off denying that he drove his car that day, and later said that he had not driven until a couple of months after the accident, when he was still wearing a neck brace; and later he said that he did not drive again until some months later, and did not drive regularly again until 1994.

68 Confronted with the video tape, showing him driving on 27 March 1992, he said that he had driven at times, but only “for short spans”. Taxed with the detail of what the tape showed, he quibbled about details in a way which did him nothing but harm. His description of how he operated the video camera, whilst filming Ms Sawyers driving, defies belief, when one views the tape.

69 As to the domestic service provided in the period immediately after his discharge from hospital, Ms Sawyers said (and the plaintiff agreed in cross-examination) that at that time she was in employment, from 8am until 4pm, five days per week, and that she continued at work, without losing any time to look after the plaintiff, until June 1993, when she left shortly before her first child was born. She also described him, in the period up to his discharge from Westmead Hospital, as being in considerable pain, and for a time in a wheelchair. She was not present when he was discharged from hospital, but saw him at home the following day, and because of his pain and the need to assist him, she moved in to live with him, apparently shortly after 21 March 1992. She said that she helped him out of bed, to the toilet, into the shower, but “that’s about it”. Some little time later, and by reference to other evidence, by 27 March 1992 he was able to walk about, and to drive a car.

70 She said that the plaintiff went to work at the Penrith RSL Club as a cleaner, in about June 1992, and he worked there for a short time. The plaintiff denied that, but then admitted that he had gone there, “to do some work”, although he said that he had not been paid for it. Later, he agreed that he went there “for a week”. There is no other evidence that he actually worked there, or about the detail of any work he did there, and the source of the knowledge of Ms Sawyers is limited to what the plaintiff told her, apart perhaps from observations of his coming and going; but I accept that he told her that he went there, to work.

71 In August 1992 the plaintiff and Ms Sawyers went to Coffs Harbour for a holiday. Again, they video taped various activities of each other, and these and some still photographs were eventually tendered. By itself this body of evidence is not particularly significant, but when examined together with what the plaintiff said in cross-examination about the matters depicted, they are damaging to his case, and more damaging to his credit. Without going into the details, which do not seem to me to be important at all by themselves, I refer to the video tape of the plaintiff paddling a kayak - of itself almost an irrelevancy - and to the cross-examination of the plaintiff about that event, and to the photo of the plaintiff on horseback, Exhibit 13J.

72 In October and November 1993, the plaintiff worked as a cleaner for, or at least with, Mr Chironna. At the very least he worked several shifts, perhaps only of about two hours duration, at the Summer Hill Hotel. The video tapes of these events show him doing moderately heavy work, cleaning the hotel in the early hours of various mornings. Once again, the real sting against the plaintiff comes not so much from what the tapes show as to how the plaintiff responded to them, when cross-examined about what they showed. In relation to these, and other matters, the more detail there was explored, the more his credit was damaged by his evasions, and shifts. One aspect of the tapes about this work will serve as an example: he said initially that he went along to the hotel with a friend because he could not sleep, but the evidence of Ms Sawyers, which I accept, was that she had to wake him up, in effect, to send him off to work. She said that he did this work two or three days a week for about three or four months.

73 The evidence does not establish with any precision at all when he started this work, when he ceased this work, what hours he worked, how much he earned, what name he worked under, or whether he worked only at the Summer Hill Hotel, or at other hotels as well, but I accept that he did some work as shown in the video tapes, more likely than not for a wage, and perhaps he did this work at hotels other than the Summer Hill Hotel.

74 I also accept that, later on, he did some work, both in the E & S Computer Business, and in the second-hand business conducted in the name of Ms Sawyers. I will discuss the evidence about these jobs below, but the work done there does not seem to have been of any real significance in relation to the question about the measure of his physical disability, resulting from his spinal injuries. I observe that the defendants tendered other video tapes showing the plaintiff carrying out various activities at other times. Once again, by themselves, these tapes do not seem to me to be particularly significant: what they show the plaintiff doing was not anything of great significance in relation to the question of the measure of his disabilities resulting from the spinal fractures. Again, however, the plaintiff’s responses when cross-examined about the tapes did not help his case.

75 It is also clear that, at least at times, the plaintiff has continued to participate in motor vehicle sports. Thus, in about 1996 he, Ms Sawyers and others went on holidays to the Oberon district, to drive Honda Odysseys (four wheeled vehicles, rather like large go-karts, equipped with roll bars: see the photo Exhibit 8). Whilst there the plaintiff drove these over rough ground and “jumps” and whilst he later complained of a sore back and bad asthma, he continued driving. This is hardly the lifestyle he related to Dr Searle.

76 Still focussing temporarily only upon the plaintiff’s physical injuries and the resultant disabilities, I turn back to the medical evidence. The evidence proffered by the plaintiff in this regard was limited to one report from Dr Cummine, dated 1993, and reports from Doctors Searle and Thompson who examined the plaintiff for medico-legal purposes. The history given to Dr Searle is inaccurate in a number of respects, summarised above. Additionally, I do not accept that the plaintiff described his condition to the doctor accurately, when asked to do so. For example, he told the doctor of difficulties when bending and lifting, but I do not think this can be reconciled with what the video tapes show. He described having to lie on the floor each afternoon to relieve the pain, but this is utterly incompatible with the way he presented in court: apart from one rather theatrical episode, he appeared to be perfectly normal. He complained to Dr Searle of pain in his wrist, but did not complain of this to other doctors. Indeed, on one occasion, he could not even remember which wrist had been broken. He also told Dr Searle that he was still having physiotherapy, but this appears to have been untrue: there is no other evidence that he was having physiotherapy, he did not tell others about it, and as I understand it, no claim was made for out of pocket expenses for physiotherapy, except perhaps in the first few months after the accident.

77 The defendant put into evidence reports from Doctors Hammond, Anderson and Walker, each of whom was retained for medico-legal purposes, as well as another report from Dr Cummine. As often happens, the doctors retained for the defence for medico-legal purposes were less inclined to accept the plaintiff’s histories and complaints than were the doctors retained for medico-legal purposes on behalf of the plaintiff. They were also given inaccurate histories, and the plaintiff made complaints to them which I do not accept, but the detail of this does not seem to be significant. In the main they accepted that the plaintiff might well have some pain and limitation of function in his neck and thoracic spine, and that there may be future deterioration, but these matters could not be assessed accurately. I accept the general thrust of this, and prefer these views and the views of Dr Cummine to the views of Doctors Searle and Thompson.

78 I accept also the evidence of Ms Wagner and Ms Sawyers to the general effect that the plaintiff complained to them about his back and that from time to time he appeared to them to be in pain, but I also accept the evidence of Ms Sawyers that the plaintiff told her both that he would not do various things, out of a fear that “the insurance company” would observe his activities, and that the insurance company had been following him. A number of doctors remarked upon the fact that the plaintiff has gained a lot of weight, particularly in recent years, totalling 25 kilograms or more since the accident, apparently due to the lack of physical activity. Perhaps it is true that at some stages his physical inactivity arose in part from laziness (as Dr. Anderson and Ms Sawyers suggested), and I see force in the proposition that he has now adopted the role of an invalid, supported as he has been by the services of Ms Sawyers and later Ms Wagner, and the receipt of social security benefits, but it may very well be the case that his physical inactivity is brought about, in whole or in part, by his fraudulent desire to exaggerate the extent of his disabilities, in order to increase the damages he hopes to have awarded. I am satisfied that he has such a motivation, and in all the circumstances I am not satisfied that there is any other factor, resulting from the accident sued upon and his physical disabilities sustained in the accident, which increases his level of physical incapacity beyond that accepted by Doctors Cummine, Hammond, Anderson and Walker. For the purposes of assessing damages as against the first defendant, this equates to an assessment of permanent physical impairment of about 10% of a most extreme case.

79 The plaintiff denied that he had sustained any injury to his spine before the accident sued upon. However, I accept the evidence of Mr Cameron that, before the accident sued upon, the plaintiff told Mr Cameron that he had seriously injured his back in a racing accident when the plaintiff fell from his bike, that the plaintiff was on some kind of social security benefit and could not work because of his sore back, and that the plaintiff was “going for an insurance claim”. My acceptance of this evidence more readily leads me to the view that Mr Ward should also be accepted when he described the plaintiff as saying things consistently with the plaintiff having had a back disability, the consequence of a trail bike accident, prior to the accident sued upon. However, I do not think that the evidence establishes that this prior back disability was truly significant for present purposes. I do not know what level of his back had then been injured or anything at all about it really, except what he told Messrs Cameron and Ward. It seems to be a matter more significant in assessing the plaintiff’s general credibility, than in terms of measuring his loss of capacity for work, and loss of amenities of life, resulting from the accident sued upon.

80 The measure of the plaintiff’s brain damage, and the measure of the plaintiff’s disability resulting from that brain damage is a more complicated and difficult question. Since many of the experts’ opinions expressed turn, at least in part, upon the accuracy of the histories given, both as to the extent of the plaintiff’s amnesia consequent upon the accident, and upon a comparison of his state before and after the accident, I will start with an examination of the evidence about these matters.

81 The plaintiff’s case was that, as a consequence of the accident, he suffered from a degree of amnesia. He said that he remembered nothing between the time he went to bed, the night before the accident, and a time when he was in the Westmead Hospital, several days after the accident, a matter which various expert witnesses regarded as being significant, both as to the measure of the pre-accident and post-accident amnesia. All of the relevant evidence about the plaintiff’s amnesia comes ultimately from the plaintiff, either from his evidence or from what he told other people, and in this context his general mendacity tells against him. However, the case against him on this topic is stronger than that. In his written statement, tendered as part of his case, he spoke of his recollection of various events on the morning of the accident. Further, the Camden Hospital records contain the following entry:

“Accident happened too fast but remembers race (insists we see it on a video!).”

82 It is also necessary to look in some detail at the plaintiff’s employment record, before the accident. Except at isolated points, the sole source of information on this topic consists of statements made by the plaintiff on various occasions, and these accounts vary. The matter is significant, in part because of the significance attached by various expert witnesses to the plaintiff’s pre-accident record, and in part because it goes to the measure of the likely level of the plaintiff’s income had he not been injured.

83 There was for a time a question whether the plaintiff was born in 1965 or 1967, but in the end his counsel addressed on the basis that the former date was correct. The plaintiff said consistently that he left school at the age of 13, that is, about 1978 or 1979. He also said, reasonably consistently, that he then worked for Keith Lord, and then North Shore Honda, and then at “Hextiles”; that he was then unemployed for a time, travelling around Australia, living mostly on social security benefits; that he then went back to school at some stage, studying there for some months, but not sitting for the School Certificate examination; that he was then some how associated with a lawn mowing and general handyman business in the Lismore area; that he was then associated with two refrigeration businesses; that he then worked for Outback Autos; and that then he was employed by Teamfox.

84 It seems that the plaintiff worked for Keith Lord for about six months, but there are conflicting accounts about his work at North Shore Honda. In evidence, he said he worked there for a few weeks, basically making coffee and just helping out. However, he told Professor Broe that he was there (“Hornsby Honda”) for four months detailing cars, and Dr Langeluddecke a year. There is scarcely any information about the job with Hextiles, but it was evidently only for a short time. In evidence, he said that he was 14 years old when he started travelling around Australia. At some stage, he arrived in the Lismore/Tweed Heads area. The sequence of events in that district is not clear, but for some time he lived at a church presbytery; at some time he spent about a year operating a lawn mowing/general handyman service, funded by some Government project apparently calculated to ease him back into the work force; at one time he worked in a soup kitchen run by a church; and at another time he spent perhaps a year studying at Year 10 level or its equivalent. It is unclear whether he completed his School Certificate examination and if not, why not. At about this time he married his wife Sharon, who is to be distinguished from Sharyn Sawyers, who later became his de facto wife. At different times, the plaintiff gave different estimates of his age when he went back to school: he told Dr Lewin he was 15, Professor Broe 16 or 17, Dr Anderson 18 and Dr Hammond 20. None of this seems to me to be particularly significant, except to demonstrate that, at best from his point of view, the plaintiff is an unreliable historian, and that, until the end of this period when he lived in the Lismore/Tweed Heads area he had not done any work other than of an unskilled kind, probably for only a modest wage; and it is also clear, from other evidence, that his capacity to write and to spell is poor.

85 Apart from a job in an unidentified factory, held for about two or three weeks, his next employment was in a refrigeration business. The documentary evidence about this is limited to the plaintiff’s income tax return for the year 1988-89. This shows that for the period 1 July 1988 to 3 November 1988 he was employed by Dominic Casey, who evidently traded as Aim Refrigeration. A tax stamp sheet annexed to the return shows that his standard weekly wage was apparently $300 gross, or $262 net, and, perhaps, $350 gross and $296.60 net for the last two weeks of his employment. However, he earned some extra money, presumably from over-time, roughly every fourth week. The document lists his gross earnings as $9391.13, but on its face, this sum seems to be wrong: the sums paid weekly by way of wages add up to only $5,777.38. Additionally, during this financial year he earned $945 gross or $802 net, working for Pepsico Australia Pty Limited, which traded as Pizza Hut, during the period 1 February 1989 to 22 March 1989 - about $117 per week net average - and he received social security benefits of $5,370 during the period 22 November 1988 to 23 May 1989.

86 The plaintiff told Professor Broe that he earned $500 per week whilst employed by Aim Refrigeration and that at the same time he ran his own business repairing, buying and selling fridges and other things. He did this from his own home, saved up his money whilst employed by Aim, and at the age of about 21 or 22 developed his own company, Performance Refrigeration Pty Limited, which he ran for approximately 18 months. He told Dr Shores that at one time he ran a successful refrigeration company which he later sold. He told Dr Anderson that he trained as a refrigeration mechanic, that he started up his own business, that the business did quite well, and that he sold it. He told Dr Allsopp that he worked as a refrigeration mechanic, and then had his own business selling and servicing commercial refrigerators, which he operated for four years, before selling it to make a capital gain. He told Dr Batchelor that he was in the refrigeration business for four years, established his own refrigeration company, and operated it for about 18 months. He told Dr Lewin that he had managed at least two businesses and had had his own business for a number of years, which he sold to advantage. It is not clear whether this was a reference to the refrigeration business or to his relationship with Outback Autos. He told Dr Hammond that he spent two years working in refrigeration, after which he formed a company which was sold after about twelve months. He told Dr Walker that between 1985 and 1987 he had a refrigeration mechanical business, sold at a profit.

87 In a written statement, tendered in his evidence in-chief, he said only that he had managed the company Aim Refrigeration for approximately a year, and had owned Performance Refrigeration for approximately two years. In cross-examination he said initially that he had worked for Aim Refrigeration for about one and a half to two years, before setting up Performance Refrigeration. At Aim, he was not managing the company, but organising the staff of about 20, and dealing with clerical matters. He initially said he was paid $300 per week net, but then accepted that it was $300 per week gross. He then accepted that he had only been employed by Aim for about four months. He said at one stage that he was doing refrigeration repairs, but then said he was not. Speaking of Performance Refrigeration, he said that he set up the company, which built “cool rooms and things like that”. He said that he closed this business down because he did not want to operate it any more. He could not remember whether he operated it for a year or two years, but there were short periods when he was not working but looking for work, and that there were quite a few of these periods. He acknowledged receiving unemployment benefits whilst operating the company, but said that he earned a sum which did not exceed the amount which he was permitted to earn whilst continuing to receive benefits.

88 Later, he said that he operated Performance Refrigeration whilst employed by Aim Refrigeration. Asked about the taxation return in evidence, mentioned above, he said that he probably did not earn any money through Performance Refrigeration during that year, and then he said that so far as he knew Performance Refrigeration had not earned a profit. It seems that he did not lodge any tax return for the years between 1 July 1989 and 30 June 1991.

89 Later again, the plaintiff was cross-examined about the history given to Dr Lewin. He gave varying accounts about some of these details, but said that he had done some refrigeration repair work whilst at Aim; and he said that when he closed down Performance Refrigeration he had some jobs on hand, but they were not worth any money. The defendants submit that the appropriate finding is that the plaintiff attempted to deceive me about his work in these two companies, and I think that this is so.

90 At another point the plaintiff said that he had worked for Aim as a trainee refrigeration mechanic for about six months, and then he agreed that he had been employed as a clerk, and then he said that he was learning about refrigeration work, without being paid to do so. It seems that any unpaid work might have been carried out whilst he was in the receipt of social security benefits.

91 His next employment was with Outback Autos. He told Doctors Batchelor, Walker and Hammond that he worked as the manager of a car yard for two years. His history to Dr Lewin and his written statement, part of his evidence-in-chief, were not significantly different. He told Professor Broe that he managed Outback Autos, a caryard, for two years, earning an approximate salary of $1,000 per week. He told Dr Anderson that after selling his refrigeration business, he then bought a car yard, and that later on, the proceeds of sale of that car yard went to his wife and daughter, upon his divorce. His history to Dr Allsop did not mention Outback Autos, but rather suggested that, after selling his refrigeration business, his next job was with Teamfox.

92 In cross-examination, he said that he had been employed by Outback Autos for about two or three years, as manager of the car yard, selling cars and doing their paper work.

93 Asked why he left, he said at one point that he was offered a job with Teamfox, and at another point:

“Just a career change, sort of thing.”

94 The plaintiff’s tax return for the year 1991-1992 contained a statutory declaration explaining why the return was lodged without a group certificate (there was a dispute between the plaintiff and Teamfox, with litigation pending), and asserting that the plaintiff was employed by Teamfox from 24 September 1991 to 22 March 1992. He disclosed no income from Outback Autos. Asked about this, he said that he was paid on a commission basis, and that he was allowed to earn up to $50 per week but did not go above this threshold. There was perhaps some confusion as to whether he was speaking of a social security threshold or some threshold, real or imaginary, relating to income tax. However, he said, clearly enough, that he did not earn as much as $50 per week.

95 Pressed further, the plaintiff said that he was the only employee of Outback Autos; that he saw the car yard with three cars in it, and left a note on the gate enquiring if he could work there, and thereafter he did that work for some two and a half years. He acknowledged that if he had told Professor Broe that he earned a salary of about $1000 per week (as the Professor said), that would have been untrue; and he explained this on the basis that he had been depressed and had hated the idea of making himself look bad. Challenged about that explanation, he said that he became confused about things. Asked about the history to Dr Shores, he said that that would have been untrue. Generally, his evidence about all this conveyed to me the impression was that he earned virtually nothing whilst employed by Outback Autos. Perhaps the job was only a part time-one, but this is not clear. Perhaps he earned more than he had been content to disclose.

96 It seems likely, from the plaintiff’s diary (Exhibit 23) and from what he said about it, that his employment with Outback Autos ended in May 1991, after the proprietor of the business offered to sell it to the plaintiff at a price that the plaintiff regarded as too high: see the entries for May 8 and 10. The entries for June suggest that he then went away on a holiday, and thereafter he appears not to have used the diary until, perhaps, early November, although the fact that some pages have been removed makes an assessment of the reliability of the diary as evidence rather uncertain.

97 Asked about his failure to lodge an income tax return for the year 1990-1991, he said that he did not think he had to, because he was “a pensioner”. He offered no real explanation as to why, if he had earned any salary from which income tax had been deducted, and in respect of which he was presumably entitled to some refund, he had not lodged a return.

98 There are significant disputes as to the detail of his employment with Teamfox before the accident, and in relation to this topic, the evidence is quite voluminous, and more sharply focussed. It is common ground that he was employed by Teamfox for some months before the accident and that he had the title “manager”, but virtually everything else is in dispute.

99 The plaintiff told Dr Shores that he was responsible for running the business of Teamfox. He told Professor Broe that he obtained the job of managing the business at about the age of 24, that the job involved racing go-karts, and that he cleared approximately $1125 per week. He told Dr Allsop that he was the manager of the centre and had been for one year before the accident. He told Dr Lewin that he managed the go-kart centre and ran the business entirely. He told Dr Walker that he managed the centre, had commenced to do so at the age of 22, and that he supervised 32 employees, but did mostly clerical and banking work. He told Dr Hammond that he held the job for about six months before the accident.

100 In-chief, he said that he had been employed for about six months before the accident, and was paid $500 per week net. He said he answered a newspaper advertisement, and was interviewed by “Frank William”. This was not explored at the time, but is perhaps a reference to Mr Frank Galea. The plaintiff said that Mr Ward later “appeared on the scene” at Teamfox, but that Mr Ward did not tell the plaintiff how to do his work or what to do. Instead, the plaintiff established his own paper work and his own format for the business, and he continued from there. When he started, there were about six staff members, and he subsequently employed up to 32, some mechanics, some engineers, and others track staff. He was responsible for the day to day supervision of all those staff members and did everything from arranging rosters, paying bills, purchasing goods as needed, and generally managing the business. He had to dismiss some staff members “quite often”, and he hired replacement staff. He was a signatory to the business cheque account, and after Mr Ward arrived, he and Mr Ward were the co-signatories. He was on duty from 10am to midnight, seven days per week (although, it seems clear, he was able to, and in fact did take breaks from time to time). He was happy with the job, and occasionally, perhaps once a week, drove a go-kart after hours for 20 or 30 minutes.

101 In cross-examination he initially resisted but then accepted the proposition that he had commenced employment with Teamfox on 1 November 1991, a little less than 19 weeks before his accident. This date is apparently confirmed by a copy of a group certificate, Exhibit 31, but is inconsistent with the statutory declaration made by the plaintiff attached to his tax return, Exhibit 11, in which he said he had been employed from 24 September 1991. The date 1 November appears more likely to be correct, and, as I have said, the plaintiff conceded that it was.

102 There are a surprising number of disputed circumstances about these matters. It seems that two men, Messrs Galea and Stokes, acquired some land at St Mary’s upon which there was a building used, perhaps, as squash courts. The building was substantially altered, so as to make it fit for use as an indoor go-kart centre. At some stage, not established with precision, Messrs Galea and Stokes entered into an arrangement with Mr Ward, to the general effect they sold to him a half share of the business then being started or just started. Perhaps three months later, and probably during November or December 1991, they sold him the remaining half of the business, but they remained the owners of the premises for some years thereafter.

103 Teamfox was a “shelf company”, acquired by Mr Ward and his wife (who evidently played no active role in any of the events the subject of this litigation), about 11 September 1991, or perhaps a couple of weeks earlier: see Exhibit 32. Mr Galea said that he and Mr Stokes had employed the plaintiff as manager, before they sold the first half share in the business to Mr Ward. The general thrust of Mr Galea’s evidence was that he and Mr Stokes sold the second half share of the business after the plaintiff commenced to work there. Mr Galea said that before the sale of the second half share in the business, he had occasion to visit the premises four or five times a week, and after the sale of the first half of the share two or three times a week.

104 Mr Galea described the plaintiff in glowing terms. He said that the plaintiff was a clean cut young chap, very presentable, well liked by the staff, and seemed to have good management skills. He had “several” staff under his care, and Mr Galea had nothing but high praise for the plaintiff’s performance. Mr Galea accepted the assumption put to him that the plaintiff was 23 or 24 years old at the time and said that he had not realised that the plaintiff was so young. He said that the plaintiff demonstrated management skills far above that age. (In fact the plaintiff was 26 at the time, although this does not seem to be particularly significant). He said that the plaintiff seemed to be always on the job, that he had a smile that could light up a room, was enthusiastic, and was always eager to come up and talk about ideas for increasing the potential of the business. He could not recall what the plaintiff was paid, and said that all of the records of the business were handed over upon the sale of the second half of the business. He also spoke in terms of praise of the plaintiff’s capacity to juggle the different ideas of Messrs Galea, Stokes and Ward, as to how the business should be run.

105 None of this was the subject of cross-examination, but the evidence was given relatively early in a long trial, and the subsequent evidence contradicted or undermined a good deal of it. It also emerged subsequently that there had been a good deal of friction between Mr Ward on the one hand and Messrs Galea and Stokes on the other hand.

106 Mr Ward said that he approached Mr Galea to rent the premises to build a go-kart track, and that he, Mr Ward, funded and managed the building work that this involved. He said that Messrs Galea and Stokes did not pay him for their agreed share of doing this, and that he had trouble obtaining a lease from them. According to Mr Ward, he arranged for the position of manager of the business to be advertised, but Mr Galea “turned up” with the plaintiff, and told Mr Ward that the plaintiff would be the manager. Mr Ward said that it was not his style to sack people without good cause, and he kept the plaintiff on, because he was doing a reasonable kind of job.

134 Mr Stein presented initially as an attractive witness, but in the end, I conclude, sadly, that his evidence is quite unreliable, although I do not feel able to make a finding just why this is so. Through Greenjinx he conducted a trucking business. In 1994 that business used a computer to keep its business records, and it seems that neither Mr or Mrs Stein had any significant computer skills, except that they used their own computer, as consumers. In 1994 they contemplated upgrading the computer that they had, and Mr Stein spoke to a friend, who recommended to Mr Stein that he see the plaintiff. Mr Stein did see the plaintiff, operating a business called E & S, conducted from the garage of the plaintiff’s then home in Upton Street, South Penrith. After discussions, the plaintiff recommended a particular supplier to Mr Stein, and Mr Stein bought a computer from that supplier.

135 Two or three weeks later, Mr and Mrs Stein decided to set up their own computer business. This, by itself, is remarkable: they knew virtually nothing about computers at that stage. However, according to Mr Stein, he spoke to the plaintiff, and a short time later, Greenjinx established a computer business in Coombes Drive, and took over the name of E & S from the plaintiff, without payment. The business, previously conducted from the garage in Upton Street, was transferred to Greenjinx, also without payment, and thereafter it was conducted by Greenjinx; and the plaintiff attended at the Coombes Drive premises from time to time, irregularly, helping out the Greenjinx staff, and without payment.

136 It is at this point that the evidence of Mr Stein is important, as supporting the plaintiff’s case about brain damage. Mr Stein described how the plaintiff attended at unpredictable intervals, and how on some days he was an invaluable help to Greenjinx in conducting its business, but on other days the plaintiff did not attend, or lacked concentration, application, enthusiasm or interest: it was not clear which; and Professor Broe pointed to this evidence as demonstrating the existence and the effects of the plaintiff’s brain damage.

137 Greenjinx provided the plaintiff with a Suzuki car for his own use, and it lent to the plaintiff and/or Ms Sawyers the money with which she bought a Toyota van. Both vehicles bore the name of E & S Computers. The plaintiff introduced to Greenjinx some business with “Cash Converters” (apparently a chain of pawn shops) through another friend of the plaintiff. This business involved Ms Sawyers driving the van, daily or almost daily, around to various branches of Cash Converters, picking up computers that needed repairs or servicing, and delivering those computers to Greenjinx. Mr Stein said that she was not paid money for this work. At that time both the plaintiff and Ms Sawyers were in receipt of Social Security benefits, and it may be that Mrs Stein arranged to pay Ms Sawyers money, not recorded in the books and records of Greenjinx, but this is not clear. Similarly, it may be that some money was paid to the plaintiff, not recorded in the records of Greenjinx, but, again, this is not clear.

138 Asked about establishing the business of Greenjinx, Mr Stein was surprisingly vague. He denied that the plaintiff had been involved in the selection of the premises at Coombes Drive, but in terms that almost demanded scepticism, and said that the plaintiff provided some of the initial equipment for the business: “a few old computers, some software, bits and pieces of tools, soldering iron, a few things like that”; but the effect was to close down the business in Upton Street when the Coombes Drive business was started up.

139 Mr Stein said that the Greenjinx business had two aspects: selling computers, and carrying out repairs and maintenance work on computers. Neither he nor his wife had any prior experience in either of these fields. He said that all of the staff (putting out of consideration Mr and Mrs Stein and the plaintiff and Ms Sawyers), came from the Commonwealth Employment Service, pursuant to an arrangement whereby the Government paid half their wages. At the commencement of the business, the company had no computers in stock, or - he conceded later - two computers in stock, and there seem to have been no firm arrangements in place with any supplier, so that Greenjinx might have promptly fulfilled any purchase order that it succeeded in obtaining. Additionally, the premises were in an industrial area, rather than a shop or retail area, and the only advertising carried out was in a local newspaper, so that it seemed unlikely that an ordinary citizen, wanting to buy a computer, would know that Greenjinx was in business, would know what its business was, or would know what computers Greenjinx had for sale.

140 At some stage, a business card was printed, reading as follows:-

“E & S Computers

Sales and Service

Eric Sawyers

Parts upgrades

CD Rom backup

All your computer and software needs”

141 The card also bore a logo, a telephone number, a fax number, a mobile telephone number and the words “six days a week”. Both the plaintiff and Mr Stein gave unsatisfactory explanations about the card, but in the end, it seemed quite clear that it was the plaintiff and not the Steins who had it printed, and that it was printed for the purposes of the business of Greenjinx. The mobile telephone number was that of the plaintiff, and Greenjinx paid the plaintiff for the cost of both his home telephone service, and the mobile telephone service, as well as the running costs of the Suzuki car and the Toyota van.

142 The plaintiff had possession of a key to the Coombes Drive premises, and there were times when he unlocked the premises in the morning, or closed them up at the end of the day’s business, or perhaps both. It is not clear how often he did this. Ms Sawyers said of the plaintiff, and his work at Greenjinx, that the plaintiff instructed the staff there what to do:

“He was sort of like a manager”.

143 Mr Stein said that, at the end of the relationship, after the business was closed down, the plaintiff owed him (or Greenjinx) about $10,000, treated as a loan.

144 It eventually emerged that the business name “E & S Computers and Electronics” was registered in the name of Mrs Stein, but most of the evidence on the topic suggested that Greenjinx carried on business under that name, and Mr Stein sometimes spoke of the business as if it was his alone.

145 At the end of the re-examination of Mr Stein, I commented that the picture he had painted was unsatisfactory, and I invited the plaintiff to lead evidence corroborating what Mr Stein had said. Later, the plaintiff tendered a considerable volume of the business and accounting records of Greenjinx and of a related entity, the Kevin Stein Family Trust. These records appear to be incomplete, but they do appear to show that Greenjinx advanced money to E & S Computers, and tend to suggest that neither the plaintiff nor Ms Sawyers was recorded as an employee, but otherwise the records do not show very much that is relevant to the case. In further cross-examination Mr Stein agreed that the business was, at least in part, a cash business, and that the banking records did not reveal all of the cash received by the business. He said that Ms Sawyers was paid some money in cash, and that this was paid by Mrs Stein, out of money kept separately from the money of Greenjinx.

146 He also said that he had lent the plaintiff $2000 to enable the plaintiff to obtain a driver’s licence; and he dated this event at about August 1995. However, in November 1994 the plaintiff obtained a licence, valid for five years. This discrepancy remains unexplained.

147 According to Mr Stein, the plaintiff played little real role in the business, but in May 1996, at the expense of Greenjinx, Mr Stein and the plaintiff both attended a meeting of the local chamber of commerce. This is a very minor matter, but it seems odd, and Mr Stein’s explanation of it seemed lame. Finally, on this point, Mr Stein said at one time that the business had a turnover of $10,000 to $15,000 per month, but the records showed a turnover for the year ending 30 June 1997 of about $445,000.

148 Ms Sawyers said that, and I accept, that the plaintiff told her that he had sold the business. Assuming in favour of the plaintiff some degree of exaggeration in his statement, the circumstance tends to point towards the plaintiff having at least played some role in the making of the decision to sell it.

149 I do not know what all this means, but do record my entire dissatisfaction with this evidence. I am not satisfied that the picture painted by and on behalf of the plaintiff is truthful or accurate; I am not satisfied that the plaintiff worked without payment; and I not satisfied that the work he did was as he and Mr Stein described it. I think that the plaintiff may well have had some concealed interest in the business, but am unable to make a specific finding that this is so. I think that he and Ms Sawyers were probably rewarded in ways which are not recorded, as well as in the ways which I have mentioned. The evidence as to this is, however, scarcely satisfactory.

150 I note that Mr Galea said that, when he encountered the plaintiff at some stage, the plaintiff told him that he was the manager of E & S Computers. Again, the point seems a minor one, and it is possible that the plaintiff was on that occasion exaggerating the significance of his position, whatever that position might have been.

151 The evidence does not establish that the plaintiff was capable of establishing or conducting a business such as that of E & S Computers, but neither does it establish or corroborate the case advanced by the plaintiff that his brain damage operates to prevent him from doing so.

152 Commencing in August 1997, the plaintiff was associated with a business called New and Used Bargain Bazaar and Auctions. He said that Ms Sawyers purchased that business from a Mr Perry (who was a mutual friend of the plaintiff and of Ms Sawyers, whom the plaintiff first met after the accident), and that for about a year thereafter he tried to help her to run the business. He described the business as being in second hand goods. He said that he had too many problems but was able to drive the truck on a couple of occasions, although he “did not do deliveries or anything like that”.

153 Pressed gently for details in the early part of his cross-examination, he said that Ms Sawyers and he went to the shop as customers, and Mr Perry’s sister (Mrs Teagle: in fact she and Mr Perry were the co-owners of the business), told them that the business was for sale. At that stage, the plaintiff and Ms Sawyers were separated, and the next that the plaintiff knew was that Ms Sawyers told him that she was interested in buying the business; and he said that he was not involved in the negotiations which led to her ultimately buying it, or in relation to the price, or in her acquiring the finance to purchase the business. She told him that the vendors agreed to her paying the purchase price off by instalments, she being in receipt of social security benefits at that time. He did not learn of the fact that she had purchased the business until a month after she had done so.

154 He explained his disinterest in this new business by reason of their separation, but said that he had told her that she needed a second-hand dealer’s licence, and he advised her to go to the police to obtain one; he had advised her to open a bank account; on a couple of occasions she had him go to an auction to buy stock; and he had gone with her to auctions, buying stock. Altogether he went to perhaps six auctions in a year.

155 Sometimes he drove a truck, but did not help to load it; and he said that Ms Sawyers had some “big guys” who did that. He said that at one stage, Ms Sawyers moved the business to other premises, just around the corner, and that she had then closed it down; and he said that at about that time he ceased seeing her, because she was complaining about his relationship with his girlfriend. (Presumably, this was a reference to Ms Wagner. She said, and I accept, that she met the plaintiff in March 1998 and that they “decided to become more serious” in May 1998.)

156 This general account of the plaintiff, and the view expressed by Professor Broe concerning the effects of the plaintiff’s brain damage, were supported, at least in part, by the evidence in chief of Mr Watters and Mrs Teagle. Mr Watters came to be employed in the business, for about ten weeks, commencing a little time before the business moved premises. Mr Watters fixed that date, without being certain about it, as about April or May 1998, but I think that this is erroneous. He obtained the job through the Department of Social Security, which subsidised the wages he was paid. It was, perhaps, a coincidence that he came to be employed in this business when he already knew and was friendly with the plaintiff. He agreed in cross-examination that the plaintiff had asked him to work there, and he did so. He said that he thought that Ms Sawyers owned the business, and that to his observation the plaintiff helped out occasionally, doing paperwork and more or less supervising. Later, he said of the plaintiff’s activities there:

“He walked around, he scratched, he talked, he spoke on the phone”

157 Mr Watters agreed that the plaintiff drove a truck sometimes; agreed that he, Mr Watters, bought the truck for $5000, from his funds; and he said that he did this because the plaintiff was a good friend. When the business moved to the new premises, “they” employed “another girl” to work there, to lessen the workload of Ms Sawyers. He would not agree that Ms Sawyers did not attend at the new premises.

158 Mrs Teagle described how the plaintiff and Ms Sawyers came into the shop as customers, and how in the course of conversation the plaintiff proffered gratuitous comments that the shop could be better run, leading to Mr Perry asking the plaintiff why he did not buy the business, and to the plaintiff replying that his back condition would prevent him from doing the necessary lifting work. She then spoke of another conversation, some months later, when Ms Sawyers said that she would not mind running the business, but did not have the money to buy it, and the plaintiff responded that he would help her; and Mrs Teagle and her brother then sold the business to “them” for $25,000, payable at $5000 per month. Mrs Teagle paid Mr Perry for his half share of this purchase price, and later Ms Sawyers paid Mrs Teagle $25,000 over the period between 1 October 1997 and 4 February 1998. Mrs Teagle said that Mr Perry took Ms Sawyers to the Department of Fair Trading, to obtain a second hand dealer’s licence. Mrs Teagle also described how, after contracting to sell the business she called in from time to time, partly to “stickybeak” about what new stock there might be for sale, and partly to collect the instalments of the purchase price, and on these occasions she saw Ms Sawyers working, but she only saw the plaintiff once or twice, not working.

159 She described an argument between the plaintiff and Ms Sawyers, concerning “the police book”, a book kept to record dealings in second hand goods. She said that Ms Sawyers accused the plaintiff of making wrong entries in the book; Ms Sawyers said that it was her business; and Ms Sawyers said that she would get into trouble on account of the wrong entries. Having regard to the evidence of Ms Sawyers, I think that Mrs Teagle was in error about the detail of this argument: the point to the argument was that Ms Sawyers had been told by a policeman that she personally had to make all entries in the book, since she held the relevant licence, and she remonstrated with the plaintiff, not because he had made a wrong entry in the book, but because he had made any entry in the book at all. Additionally, I think that the incident tends to support that part of the defendants’ case that asserted that it was the plaintiff rather than Ms Sawyers who in fact conducted the business: the plaintiff treated it as if it was his own.

160 It is clear that it was the plaintiff who drew up the documents evidencing the agreement that Mr Perry and Mrs Teagle sell the business: Exhibit 26. These documents are perhaps best described as a layman’s attempt to draft documents normally drafted by lawyers, but they show that the purchaser of the business was the plaintiff, and not Ms Sawyers, and that it was the plaintiff, and not Ms Sawyers who provided the vendors with security for the outstanding purchase price.

161 During the latter part of the period when Mr Perry and Mrs Teagle conducted the business, they drew $500 per month from the business, each. There were no other employees, and they worked six days a week, as well as often working at night, and the business made no profit. They sold it for $25,000, representing less than the value of the stock and the fittings; they apparently accepted that they could not recover the value of the stock plus the value of the fittings.

162 Mrs Teagle also said that, she called into the shop to collect the instalments on the purchase price, Ms Sawyers said that she needed to check with the plaintiff that there was money available to pay the instalment when it was due, before Ms Sawyers actually made the payment. Sometime early in 1998, Mrs Teagle went to the shop again, and saw Ms Sawyers, who told her that the business had moved to new premises. Mrs Teagle went to the new address on the same day, and again on a later day, and did not see the plaintiff or Ms Sawyers at the new address.

163 Against this background, I will review the further cross-examination of the plaintiff and the evidence of Ms Sawyers. He denied that he bought the business, denied that he had asked her to put it in her name in order to deceive the “insurance company”, and insisted that she bought it. He said that he purchased the truck used in the business, using monies he borrowed from Mr Watters. He conceded that he drove the truck but not daily; and conceded that he unloaded it on occasions. He denied that he kept control of the finances and income of the business, or that he made all the decisions concerning the business, and in particular he denied that he made the decision that the business move to the new premises, although he said that he advised her to move. Pressed further, he agreed that the rent payable in respect of the new premises was three times the rent on the former premises, but denied that this was a source of friction between them.

164 It emerged that the lease of the premises was in the name of “Eric Sawyers and Sharyn Lee Sawyers trading as New and Used Bargain Bazaar of 4 Upton Street, Penrith”, and that the plaintiff had signed his own (adopted) name, and also the name “S Sawyers”. The address had been their address for some years, although they were separated at the relevant time, and he was living elsewhere. The plaintiff said that he signed in the name of Ms Sawyers, and asserted that he did so with her authority, because “she was not there at the time”. He agreed that he took over the conduct of the business, but fixed the date for doing that as being about a week before the business closed down; and he did not state the date of that event. He said that just before this happened, there were no employees, but then conceded that his nephew David was working there. In fact David appears to have been employed in the business from about August 1997 onwards, although this is not clear. Later still, the plaintiff said that the occasion when Ms Sawyers and he finally separated was not related to the business moving to the new premises, but agreed that she had left the business, two or three weeks before that separation occurred; he insisted that she had worked at the new address, and that she had hired a new employee to work there; and then he identified that new employee as Mr Watters.

165 Ms Sawyers said that the plaintiff simply told her that “we” were going to buy the business, that she played no role in the negotiations to buy it, and that he told her that the business would be in her name, to conceal the purchase from the “insurance”. She said that she did not know the amount of the purchase price initially: the plaintiff simply told her that they would be paying it off at $5000 per month, and that that was all she knew on the topic until Mrs Teagle gave her a receipt for the first instalment (the sum actually paid on that occasion was only $4000, but nothing turns on this), and the receipt recorded that there was a balance payable of $21,000: Exhibit Q.

166 Ms Sawyers said that she worked in the business seven days a week, that the plaintiff worked there also, and that they employed his nephew David after a month or two, the plaintiff having organised that employment, and for the Government to subsidise David’s wages. She described how Mr Watters purchased the truck and signed it over to her; and she said that the plaintiff drove it daily, making deliveries, usually by himself (so that it was suggested, I think correctly, that more likely than not he loaded or unloaded it, generally speaking, if not always). She attended to the record keeping, banking, and payment of creditors. She thought that the business “was still going, but going downhill”, at about the time she left.

167 On her account, the plaintiff decided, without consulting her at all about it, to move the business to new premises. She thought that this was economically foolish, and this was the last straw, so far as concerned their personal relationship. She had “just had enough”. She resented, amongst other things, his doing things for other people, but not for her, purportedly so as to conceal his activities from the defendants, and to his making decisions without consulting her. She refused to move to the new premises, went to the Department of Fair Trading, and signed some papers which she thought had the effect of transferring the business to him, and she effectively brought the personal relationship to an end. Not long after that, she commenced proceedings against him in the Family Court, and in an affidavit filed in those proceedings she recorded the date of final separation as being 1 February 1998.

168 Speaking of the decision to move to the new premises, she said that when she challenged his decision, he replied:

“What would you know?”

169 Neither the plaintiff nor Ms Sawyers drew any money out of the business during the period she worked there: both were in receipt of social security benefits. This might explain, in part, a capacity to pay Mrs Teagle $5000 a month, but the evidence leaves unanswered where the rest of the purchase money came from.

170 I note too that, more likely than not, the plaintiff did some work managing the activities of a band, but the evidence about this is quite imprecise.

171 Some aspects of the evidence concerning the plaintiff’s activities with E & S Computers and with the second hand business support Professor Broe’s thesis about the effects of the brain damage upon the plaintiff, but overall the evidence points to the conclusion that the plaintiff has lied, repeatedly, deliberately, and for the purpose of attempting to recover a greater sum of damages than would otherwise be appropriate. I find that he suffered significant brain damage. I also find that he has not proved more than this generality, so far as concerns its effect upon his earning capacity and so far as affects him in a non-economic sense, so that attaching a dollar value to particular elements of damages is anything but a scientific exercise. Ms Sawyers said, and again I accept, that during the period of their relationship the plaintiff always seemed to have money available, and he did not ask her for money. She said that he dealt in various goods, buying and selling, and although I take this to have been a reasonably constant activity, it does not seem to have been one likely to have attracted much by way of profit, considering the position over a long period. At the same time, the plaintiff seems to have lived with a degree of comfort incompatible with the notion that he has lived on social security benefits alone; he has gone on holidays, engaged in various motor vehicle sports, and supported (sometimes) a mobile telephone, and the habit of smoking both tobacco and marijuana.

172 He now enjoys a relationship with Ms Wagner, who spoke of her love for him, and how she looked after him, in a way which I find to be unnecessary. I consider that her devotion to him coupled with his statements and conduct towards her, have to a large extent blinded her to the reality of his true state. I accept her without question as an honest witness, but do not accept the reliability of the views she expressed. I consider that he has deceived her, just as he has attempted to deceive others.

173 The defendants submitted that the plaintiff had not called as witnesses various relatives of the plaintiff, who might reasonably have been expected to have been called, to support his case if it was true, and invited me to infer that these relatives would not assist his case. This appears to be correct.

174 Mr Galea spoke of the apparent change in the plaintiff’s dress sense after the accident, and of other changes, and each of Mr Watters, Mr Smith and Ms Sawyers gave generally similar evidence. That is, there are pointers to the existence and the effect of brain damage.

175 In conclusion, I find that the plaintiff suffered significant brain damage, and this considered together with his spinal injuries, constitutes a serious injury for the purposes of s 151 H of the Workers Compensation Act, resulting in the plaintiff’s ability to lead a normal life being significantly impaired for the purposes of s 151 G. However, I am not satisfied that he is as disabled as he asserts. I accept that he is probably unable to manage a business on his own successfully, but I am not satisfied that he would have been able to do so but for the accident. If it is the fact that he conducted the business of Performance Refrigeration on his own account, that business produced no, or no significant income. Further, I note that Dr Shores considered that the results of the tests he administered to the plaintiff were somewhat inconsistent with the history that the doctor obtained to the effect that the plaintiff had worked before the accident in a managerial position.

176 There were occasions when Ms Sawyers told others of matters that helped the plaintiff’s case. To the extent that she gave evidence inconsistent with these statements, I prefer her evidence, and accept that the plaintiff asked her to lie, as part of his plan of deception. Generally speaking, I regard her as a truthful and reliable witness. I have some reservations about some parts of her evidence, considering that, even now, she harbours a wish to see him recover significant damages. I note that this might be to her financial advantage. I also accept her evidence that the plaintiff kept things from her, during the period of her relationship.

177 As between the plaintiff and the first defendant, I assess damages as follows:

(a) Agreed out of pocket expenses $ 2,075
(b) Past impairment of earning capacity

(i) 13 weeks @$450 per week $ 5,850
(ii) 39 weeks @ $350 per week $ 13,650
(iii) 422 weeks @ $250 per week $ 105,500
(iv) Loss of superannuation benefits
6% of the sum of (i), (ii) and (iii) $ 7,500.00

(c) Future impairment of earning
capacity:the present value of $250
per week for 29 years, discounted @
5% p.a, less 15% for contingencies $ 174,675

(d) Loss of superannuation benefits:
9% of (c) $ 15,721.00

(e) Non-economic loss: 1/3 of a most
extreme case $ 68,000.00

Total $ 392,971
Less 10% for contributory negligence $ 353,674

178 As between the plaintiff and the fourth defendant, I assess damages as follows:

(a) Out of pocket expenses $ 2,075
(b) Past impairment of earning capacity

(i) 13 weeks @$450 per week $ 5,850
(ii) Interest thereon for say 9.05 years
from 1 April 1992 at an average of
11.87% p.a. $ 6,284
(iii) 39 weeks @ $350 per week $ 13,650
(iv) Interest thereon for say 8.5 years
from 26 October 1992 $ 13,772
(v) 422 weeks @ $250 per week $ 105,500
(vi) Interest thereon, for say 4.1 years
from 13 March 1993 $ 51,344
(vii) Loss of superannuation, 9% of the
sum of items (i), (iii) and (v) $ 7,500

(c) Future impairment of earning capacity:
the present value of $250 per week for 29
years, discounted by 3% p.a, less
15% for contingencies $ 220,596

(d) Future superannuation benefits:
9% of (c) $ 19,854

(e) Non-economic loss $ 150,000

(f) Interest on past non-economic loss:
say 9.1 years on $75,000 @ 2% p.a $ 13,650

Total $ 610,075
Less 10% for contributory negligence $ 549,067

179 I have included in the various figures for non-economic loss an allowance for the provision of domestic assistance, and such out of pocket expenses as have been incurred or will in future be incurred, not the subject of agreement. Generally speaking, I have proceeded on the assumption that Ms Sawyers provided considerable domestic assistance for some weeks, but without taking any time off work, and that what has been required thereafter is relatively trivial.

180 I give the following judgments and make the following orders:

1. I give judgment for the plaintiff against the first defendant for $353,674.

2. I give judgment for the second and third defendants against the plaintiff.

3. I give judgment for the plaintiff against the fourth defendant for $549,067.

4. On the first cross-claim I give judgment for the cross-claimant for $176,836.

5. On the second cross-claim I give judgment for the cross- defendant.

6. On the third cross-claim I give judgment for the cross-claimant for $549,067.

7. On the fourth cross-claim I give judgment for the first and second cross-defendants, and judgment for the cross-claimants against the third cross-defendant for $176,836.

181 I invite submissions as to costs.

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Last Modified: 04/20/2001

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

CITATION:	Fleissig v Teamfox Pty Ltd & Ors [2001] NSWSC 286
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 21227 of 1996
HEARING DATE(S):	21 - 25 February, 16 - 19 October, 23- 26 October, 30 - 31 October, 1 November 2000.
JUDGMENT DATE:	19 April 2001
PARTIES :	Eric Fleissig v Teamfox Pty Limited (First defendant) Philip James Ward (Second defendant) Lopired Pty Limited (Third defendant) Oran Park Motor Sport Pty Limited (Fourth defendant)
JUDGMENT OF:	Brownie AJ at 1

COUNSEL :	P Neil SC J L Carr (Plaintiff) G Charteris (First defendant) In person (Second and Third defendants) R McIlwaine SC (Fourth defendant)
SOLICITORS:	Bateman Battersby (Plaintiff) P W Turk & Associates (First defendant) P J Ward (In person - Second and Third defendants) Marsdens (Fourth defendant)
CATCHWORDS:	Voluntary assumption of risk considered : Paras 27 - 35 - otherwise no question of principle.
LEGISLATION CITED:	Motor Vehicle Safety Sports (Public Safety) Act 1982, s 3 and s8; Motor Vehicle Sports (Public Safety) Regulation 1985, cl 5, cl14 and cl35; Workers Compensation Act 1987, s151G, 151H; Contracts Review Act 1980.
CASES CITED:	Buckpitt v Oates [1968] 1 All ER 1145 at 1147; Bennett v Tugwell [1971] 2 QB 267 at 273-274; Bright v Sampson & Duncan Enterprises Pty Limited (1985) 1 NSWLR 346.
DECISION:	See paragraph 180.