Gary John Keenahan v Allen Bros Asphalt Limited

[2001] NSWSC 279

CITATION:	Gary John Keenahan v Allen Bros Asphalt Limited [2001] NSWSC 279
FILE NUMBER(S):	SC 20155/97
HEARING DATE(S):	7-10/12/1999 15/12/1999 19-21/7/2000 24-27/7/2000
JUDGMENT DATE:	17 April 2001
PARTIES :	Gary John Keenahan Allen Bros Asphalt Limited
JUDGMENT OF:	Dowd J at 1

COUNSEL :	Mr M Holmes QC- Plaintiff Mr M Elkaim- Defendant
SOLICITORS:	Goldrick Farrell Mullan- Plaintiff Bartier Perry & Purcell- Defendant
CATCHWORDS:	Personal injury - Negligence - Paraplegia - Contributory negligence - Assessment of damages - Most extreme case - Domestic care - Recreational needs
LEGISLATION CITED:	Evidence Act 1995 Motor Accidents Act 1988
CASES CITED:	Fox v Wood (1981) 148 CLR 438. Nominal Defendant v Gardikiotis (1996) 186 CLR 49.
DECISION:	1. Verdict for the plaintiff in the plaintiff's action, and in the claim of contributory negligence; 2. Parties granted liberty to apply; 3. Costs reserved.

IN THE SUPREME COURT
OF NEW SOUTH WALES

DOWD J

20155/97

17 April 2001

Gary John KEENAHAN v ALLEN BROS ASPHALT LIMITED


REASONS FOR JUDGMENT

1    DOWD J: The plaintiff was the driver of a prime mover, owned by the company he controlled, to which was attached a tanker of bitumen, owned by the defendant. On 19 January 1988, the plaintiff was catastrophically injured when the prime mover and trailer of bitumen both left the road and crashed at an S-bend over the Melbourne-Sydney railway line with which the Yass-Harden Road intersects.

2    The plaintiff, by amended Statement of Claim, sued the defendant for negligence for failing to repair and maintain the trailer, as the defendant had agreed with the company by whom the plaintiff was employed. Under the agreement, the company by whom the plaintiff was employed, had contracted with the defendant to carry bitumen an. The defendant undertook to properly repair the trailer which it owned.

3    The plaintiff contended that due to a mechanical malfunction, the brakes on the front offside axle locked, causing the trailer to become uncontrollable and run off the roadway, causing serious damage to the plaintiff.

4    The defendant denied negligence and pleaded contributory negligence. The claim arises under the transitional provisions of the Motor Accidents Act 1988.

The Plaintiff

5    The plaintiff, who is now fifty-five, was aged forty-two at the date of the accident giving rise to these proceedings, having been born on 10 June 1945. He left school at the age of fourteen and worked as a tiler and spray-painter at Auburn, being subsequently employed at the NRMA at Lidcombe, from 1960 to 1966.

6    The plaintiff married in 1967 and was divorced in 1969. He worked as a self employed spray-painter and panel beater from 1966 to 1971 and worked from 1971 until the late 1970’s as a casual spray-painter, working on trucks. In the late 1970’s, the company owned and controlled by the plaintiff, contracted with the defendant to supply a prime mover for the defendant to deliver the defendant’s trailers of hot bitumen to the defendant’s customers. The defendant was to provide the trailer and maintain it. This activity was for a period of around six months each year, the plaintiff otherwise working painting trucks, repairing vehicles and conducting other truck-driving duties.

7    On 15 June 1974, the plaintiff married Rhonda Keenahan and lived in a caravan until saving up to buy a home, his present residence. There are two children of the marriage, his son Graham, born in 1976, and his daughter, Geanine, born in 1980.

8    The plaintiff, a very pleasant and remarkably optimistic man, is of low average intelligence and was and is now moreso, overweight. He is, both prior to the accident and subsequently, an extremely resourceful, and highly motivated individual. Before the accident, he carried out a very high level of sporting and recreational activity, and showed remarkable resilience and enthusiasm for entertaining himself and his family.

The Facts

9    The plaintiff was driving his prime mover with the defendant’s trailer of bitumen attached, late at night, from Sydney, to deliver the bitumen to Lake Cargelligo, travelling west along the Highway until he reached Yass, where he had a meal. After his meal, he turned off onto the Binalong Road, going through to Harden on Trunk Road No. 84. As he was passing the Illalong Creek Road on his left, the road makes a sharp right-hand turn and then a sharp left turn as it passes over a bridge over the main Melbourne-Sydney railway line.

10    The prime mover, comprised a large truck with a capacity to pull a trailer, having three axles, one at the front and two at the back. The trailer had two axles together in a configuration known as a ‘bogey’, at the rear of the trailer.

11    At the time of the collision, the gross vehicle weight of the tanker trailer was 36.4 tonnes. There was space left at the top of the trailer which allowed the tar to move dynamically with sideways movements of the vehicle. The leaving of space in such circumstances is described as ‘ullage’.

12    The subject road on which the plaintiff was travelling comprises two lanes of bitumen (one lane of bitumen in each direction), with gravel shoulders on both sides.

13    Coming from the east in the direction of the collision site, there was a crest in a generally flat road, after which, on the left hand side as the roadway gradually descends in a generally straight direction, approximately with a three to four percent downgrade, there is a “Road Narrows” sign. Some little distance further on, there is a “Reduce Speed” sign, and further on, there is an advisory speed sign indicating an S-bend to the right, with 35km/h as the advised speed, some 130m from the intersection of Illalong Creek Road, which is the commencement of the right-hand curve. The road is straight in that direction until the intersection with the Illalong Road to the left, when it curves around fairly sharply to the right and over the bridge and then left. The road surface was of asphalt and was in reasonable condition.

14    The plaintiff was followed for some distance by another driver, a plumber, Mr Norman Hatch, who was a former Army driver, having a truck license, although not for articulated vehicles. In April 1988, Mr Hatch made a statement concerning the accident, and gave evidence in the proceedings. He followed the plaintiff’s tanker from Yass, following it for some time before he overtook it. He then stopped and the plaintiff overtook Mr Hatch in turn. He eventually caught up with the tanker and travelled with it, some short distance behind, for some time.

15    Mr Hatch noticed that the truck went onto the wrong side of the road only at a point where there was a severe amount of gravel on the left-hand side. Mr Hatch lost sight of the tanker as it went over the crest of the hill and when he saw the tanker again, he noted that the brake lights were flickering, as though there was either a problem with the electrical system or that the brakes had been applied a number of times. At that stage, the tanker was still on the correct side of the road.

16    Mr Hatch said that the tanker was approximately at the zigzag sign, when he saw the tanker again after coming over the hill. He noticed that there was no reduction in the speed of the tanker as the brake lights were applied. Mr Hatch’s evidence was that the plaintiff had been previously driving consistently, remaining on the left-hand side of the road, Mr Hatch having been approximately 100m behind him. Travelling down the hill from the crest, the tanker was travelling at a speed of approximately 80-85km/h.

17    When Mr Hatch sighted the tanker, he said to his wife:

“I think he is going too quick for that corner”,

as the tanker was approaching the corner. The brake lights were on, but the tanker did not appear to be losing speed. The tanker was still on the left-hand side of the road.

18    In his statement of 1 April 1988, Mr Hatch did not mention that the lights were flickering. Initially at the corner, the tanker looked to him as though it was cutting the corner. There was no moon at that time and the night was dark. Mr Hatch said that he was some 100m behind the tanker when he lost sight of it.

19    The tanker left the road and broke through the barrier on the curve. The tanker became detached and the prime-mover moved down the embankment to the side of the railway line near the bridge, coming to rest at the side of the rail track. The plaintiff landed across the rails. The plaintiff was taken to hospital where he was treated for his terrible injuries.

Evidence on Liability

20    The plaintiff has no recollection of the collision itself or the period leading up to it. However, on his last delivery, returning from Cowra, the brakes were locking as he drove. He stopped at Bathurst and telephoned Graham Neill of the defendant company, and said words to the effect:

“… the brakes are still locking. I refuse to pull the tanker any further. It’s dangerous and its chopping pieces out of my tyres.”

21    The trailer was booked into the workshop and an alternate trailer was obtained. The system employed by the defendant was that a tanker was assigned to each driver and continued with that driver unless it was in for repair. A stand-by tanker was used if available. The system was to report the fault to Graham Neill, the person to whom the plaintiff had reported his defect.

22    The plaintiff had been pulling the same trailer for seven years, and in that time, he worked all over New South Wales. The system in the country is that the load of tar is taken to wherever the Department of Main Roads is working, the Department sprays it, and they put metal on top, doing five or six kilometres at a time. The driver would go to the job and sleep in the truck when finished. The driver would be woken up to go back to the defendant’s premises.

23    The plaintiff said that the difficulty with the sticking brakes which he demonstrated to Graham Neill, was that even though the car may be at walking speed, the plaintiff would rest his foot on the brake and the right-hand wheel would just lock up. Mr Neill, on this occasion, said:

“Put it in the workshop.”

24    The way that it was possible to tell if the wheel was locking, was that smoke would appear as the tyre surface rubbed off as the wheel locked, and that the wheel would continue to operate with a series of flat spots.

25    The plaintiff’s evidence was that the prime mover was fitted, in addition to the wheel brakes, with a brake called a ‘jake’ brake, which operates when the driver lifts the throttle off completely, the power of the engine is used to retard the forward movement of the vehicle and that it was possible to drive considerable distances without using the footbrake. It was possible also to use a low gear, to retard the vehicle.

26    The plaintiff said that he had been over the road where the accident had occurred, on a number of occasions.

27    The plaintiff’s evidence was that although it was possible to use the jake brake, on some occasions it might only take one application of the foot brakes to slow down the vehicle and you might only use one application of the brakes, rather than put the jake brake on, if you know the area. The plaintiff’s evidence at page 107 of the Transcript, was as follows:

“HIS HONOUR: Q: I think the question might be confusing. You start slowing down by taking your foot off the throttle?

A. Yes.

Q. And letting the momentum of the vehicle carry you without acceleration, is that right?

A. Yes.

Q. And at a later point in time you then touch the brakes to decelerate, is that right?

A. And you go down a couple of gears, between the engine and the foot brake.

Q. You use the engine retard as the major decelerant?

A. Yes

Q. But you would use the brakes as well?

A. Yes.”

28    The plaintiff’s evidence at page 109, line 22, of the Transcript was as follows:

“Q. In order to take the bend, you have got to be about what speed - take the bend safely?

A. 35.

Q. So you have got to get from 80 down to 35?

A. Yeah.

Q. In order to do that, what are the mechanisms you use?

A. Well, just as you come over the last crest you sort of brake and then go down maybe there gears; the engine brake on. Then you might have another application.

Q. Have you used your foot brake yet?

A. Yes, probably twice but just like - just boom like that and let it off.

Q. A dab?

A. Yeah, a dab and it would reduce probably a couple of more kilometres an hour between the engine brake and the braking; its a shared sort of control mechanism, you know.”

29    The plaintiff’s evidence further was, at page 111 of the Transcript:

“ELKAIM: Q. And I take it there’s no foot clutch?

A. Yeah, there is a foot clutch but you don’t use it; it’s not necessary.

Q. So with your experience and the use of the revs you can change the gear?

A. Yeah.

Q. You’re following this procedure as you’re going down the bend?

A. Yeah.

Q. You’re continuing to do it, are you, because you have got to come down to 35?

A. Yeah.

Q. As you’re going along do you need to use the foot brake?

A. Yeah. Well, you might say I’ll go down another 5 Ks so you go one application, you might go a fairly hard application, and brake and the truck just slows rapidly. The rest of the time you just use smooth application of the engine brake.

HIS HONOUR: Q. Your brake foot is your accelerator foot?

A. Yes.

Q. So that by taking your foot off the accelerator?

A. You have that.

Q. You have both?

A. Yes.

Q. You have the engine retard and the brake working simultaneously?

A. Yes, your Honour.”

30    The plaintiff’s evidence was that the characteristics of the vehicle depended on the load, and that if the load is 5 tonnes, the truck handles differently to when you have a load of 19 tonnes. The plaintiff’s evidence at page 112, line 52 of the Transcript, was:

“A….. So when you load the truck you assess what the truck’s going to be like because you have some bad habits, you stop at the lights and the tank sloshes forwards and backwards for seven seconds or something like that with the load shifting.

ELKAIM: Q. What was the load you had that night?

A. 19,000 litres.

HIS HONOUR: Q. And therefore it sloshed?

A. Yes.

ELKAIM: Q. I thought you may have said 17,000 and a half?

A. I got instructed to only take that much because I always used to have a tendency to take a little bit too much.

Q. If it’s 19,000 litres, it sloshes around, does it?

A. Yes.

Q. And you knew that?

A. Yes.

Q. So you have to adjust your driving accordingly, do you?

A. Yeah, slower than you normally would.

Q. Does that mean that going down into the corner where you had your accident, you would go down a lit slower than if you had a full tanker?

A. Yeah, maybe 5 kilometres an hour slower or something like that. You’d just assess what you reckon you could go around it at.”

31    The plaintiff’s evidence was that 30 kilometres an hour would have been a safe speed on that corner carrying that load.

32    The plaintiff’s further evidence at line 15, of page 116 of the Transcript was as follows:

“ELKAIM: Q. What I’m suggesting to you is that if you would have had a problem with your foot brake, you would have been able to slow your vehicle down to a speed that would have enabled you to take that corner; do you agree with that or not?

A. On this corner?

Q. Yes?

A. I doubt that from the distance you would have to change too many gears and there wouldn’t be enough actual road left to do that.

Q. You say that even though you have told us that you can descend from the Blue Mountains with a full load without using your foot brake?

A. Yes.”

33    The evidence of Mr Bannister, who was driving the same trip to Lake Cargelligo on 18 January 1988, as was the plaintiff, was that the drivers were under pressure to get the loads out, and that the mechanics worked long hours, particularly in summer which is the time of year when most major road works are undertaken. Gary Bannister was to be one of three drivers driving to Lake Cargelligo on the night, he being due at 8am. He arrived at 7am, having heard of the plaintiff’s accident, he having past that site at approximately 1am.

34    Mr Bannister’s evidence was that it was a fine night; the temperature was cool. He saw the skid marks on the way back, which he said were approximately 50m in length and crossed the centre line towards the lowest point in the camber of the road, headed in the general direction of the where the rig had come to rest, the tanker still being there when he came back along that road and inspected that site.

35    The evidence of the plaintiff as to responsibility for the tanker was supported by Mr Bannister and Mr Brian Alvis, another driver. There has not been any issue that it was the driver who was responsible for the tyres and brake lighting on the tanker, but that the responsibility for maintaining the balance of the vehicle was that of the defendant and that any mechanical problems detected are carried out by the defendant’s mechanics.

36    Mr Alvis’ evidence, which I accept, was that on his vehicle, there was a problem with an offside front wheel on the trailer bogey, locking under braking, and that the workshop looked at the matter several times without correcting the problem.

37    The witness, Mr Derek Mirfin, was admitted as an expert witness, based on his experience and training, under the provisions of the Evidence Act 1995, he having been employed by the defendant as a welder, working on the tankers.

38    Mr Mirfin explained the workings of how a bogey axel system works to share the load of the axles equally. His evidence was how he had test driven the vehicles and how he had received instruction in reaction engineering. Mr Mirfin further explained how his experience from 1973 - 1985, involved the fitting of axles to heavy vehicles, including in most case, the fitting of new bolts to attach the axle to the spring assembly.

39    Mr Mirfin also explained the function of the springs on the axles as being a mechanism for resolving the brake torque into the beam. They also laterally locate the axle by fitting into the hangers and they resolve brake torque and carry the weight of the vehicle.

40    Mr Mirfin’s evidence in relation to the bogey on this trailer was that there was too long a span between the trailer bogey and the skid plate, the latter being the device which attaches the trailer to the prime mover. This has the effect of limiting the load that the tanker can carry as only a certain weight per axle is permitted, and therefore created too much ullage or space at the top of the load, which enabled it to move too much from side-to-side with the movement of the truck and trailer, because of the failure to include longitudal baffles inside the tank.

41    His evidence was that the rotation of the cam-shaft or S-cams, was incorrect; that the cam-shaft should rotate in the same direction as the wheel, but that these were reversed on the subject trailer. This creates excess vibration, abnormal noise, and accelerated wear of braking components, and flattens rollers, wears cams, wears the shoe-eyes where the rollers fit, all of which abnormal wear causes sticking of the brakes, and poor performance of the brakes.

42    Mr Mirfin said that he visited the plaintiff in hospital, who asked him to examine the trailer which was a hockney trailer fitted with a bogey with which Mr Mirfin was familiar. On examination of the vehicle, Mr Mirfin found that a cure had been attempted for the sticking brake on the bogey of the trailer, being the fitting of an external spring. His evidence was that this was not a cure. He found that the cam-shafts were in the wrong rotation.

43    His examination of the vehicle, as demonstrated in the photographs and video admitted in evidence, showed a clearance between the bottom leaf of the spring and the top of the axle perch, and that he spring perch on the right front axle showed that it had been rounded off and tracked by the spring, which indicated that it had been loose for some time and not detected and corrected. This causes momentary locking of the brake because of needing to be in contact with the shoe and the drum causes the brake to rotate instead of obtaining a reaction between the tyre and the road.

44    When the axle stops rotating around the loose perch, braking force is transmitted by the brake mechanism to the axle beam. This exerts pressure on the welds between the spring perch and the axle. If the welds fail, the axle will rotate in the failed connection.

45    The photographs exhibited before the Court showed the welds to the axle shaft to have both broken. Mr Mirfin then examined the left front axle, which showed unusual damage of the spring pack, showing a forward pack clamp broken and it appeared that this bolt had been sheared. This indicates quite considerable brake torque. There was evidence of contact between the spring leaf and the radius rods which connect the axles to the vehicle and shows a substantial deformity of the left front spring, indicative of axle rotation.

46    Mr Mirfin’s evidence was that as the result of the axle rotation on the trailer bogey, the right-hand front axle connection having failed, the axle rotated inside this connection, but the left hand front axle, still being sound, rotated with the axle. This would cause the axle to steer the trailer, because the left front radius rod was deflected from its normal ride, thereby shortening the length between the forward radius rod anchor point and the left hand side of the axle beam itself. The result of this is that the front axle would steer violently to the right and showed axle displacement which is demonstrated in the photographs as 190mm (7.5 inches). His evidence was that the load would have shifted quite dramatically because of the flat eliptical profile of the tanker and the substantial ullage.

47    The evidence of the plaintiff was that a nurse had told him, when he had become conscious in hospital, that the plaintiff had said that the was a bang and a shudder, had been admitted.

48    It is Mr Mirfin’s evidence that the bang which the plaintiff heard would be his application of the brakes and that this would be the sounds made by the axle rotating and the bolt shearing. His evidence also was that the defendant fitted a different type of turntable, called a ‘restricted side oscillating turntable’, to the company tanker prime movers, but that this was not required of the sub-contracters. The RSO turntable bases significantly reduce adverse tanker torque reactions on the prime mover and improves controllability and driveability of the unit as a whole.

49    Mr Mirfin’s evidence was that the weight of the tanker means that the tanker tends to drive the prime mover and that as a result of the failure of the axle welds and the breaking of the spring assembly, caused the steering of the axle and the locking of the brakes.

50    At page 215, of the of the Transcript, Mr Mirfin, in cross-examination, said:

“Q. Just tell us if you can, in short words, the two. First, number one?

A. My- my theory of the spring contributing relates to the steering or in the involuntary steering of the tanker to the wrong side of the road. That has- and having said that, that has absolutely nothing to do with the loose U-bolts which cause sticky brake which cause brake lock-up which reduce the effectiveness of the brakes on the tanker of the trailer.

My opinion is that Mr Keenahan had no control over the direction the tanker was taking and he had greatly reduced control of the speed of the tanker because of the sticky brake syndrome and a locking up because sticky brake syndrome locks brake up and when you down anything like a normal brake procedure, you know, not locked up. You skid.

Q. Are you saying, sir, that the S-cam configuration- wrong way round?

A. Wrong way round.

Q. Without any involvement of the U-bolt looseness and its effects was one of the causes of this accident?

A. Yes.”

51    Mr Mirfin’s evidence was supported by a consulting engineer, Mr Russell Findlay, his opinion that the poor maintenance of the trailer and the failure to include an appropriate turntable, were causative of the locking of the brakes, of which the plaintiff had complained. This evidence was further supported by the opinion of Roger Perkins, a Consulting Transport Engineer, whose view was:

“The downhill run, plus braking forces on an already flat spotted tyres, cause a load shift to the left front of vehicle, or any one, or any combination of a number of possible inherent features and behaviour this tanker could have displayed, not the least of which would have been the fact that the right side front, trailer axel to spring seat welds may have already been broken at the last brake application whenever that was employed.”

52    This load shift to the left would lift weight off the right side. The defective suspension, would cause brakes to actually ‘lock-up’ on the right hand side instead of the usual ‘vibration’ and ‘shudder’ of straight line stopping. In the Report No 1, 9/3/88 of the plaintiff’s crash investigator Mr Hatch is reported as saying, “Large cloud smoke appear as brake lights of vehicle flashed on”, from the locked up brakes.

53    Mr Hatch’s evidence, in respect of which the defendant suggests there is no attack on his credibility, as summarised under ‘Facts’, earlier in this judgment.

54    The defendant in addition to relying on evidence obtained by the plaintiff’s witnesses, relied on the evidence of Mr Mark George, who is a former police man and accident investigator. Mr George examined the site of the accident and the photographs which were taken and exhibited before the Court. His evidence was that trucks tended to cut the particular corner where the accident occurred and that it was possible to decelerate on the hill by using the exhaust brakes. He said the examination of the photographs demonstrated that the vehicle was already tracking on the wrong side of the road.

55    Mr George’s evidence was not helped by the fact that he was not aware of the particular configuration of the truck nor the nature of the load, taking his evidence from standard text books as to how vehicles would perform. At page 302 of his evidence in cross-examination, Mr George said, in answer to a question from Mr Holmes, at line 35:

“HOLMES: Q. So from that do I understand that it’s your evidence that you based your report on the fact that the skid marks commenced on the wrong side of the road?
A. No, no, when you say I based my report, I reported that the skid marks commence in the photographs not to be construed to mean that that was where the skid marks started in the physical sense on the ground. They may have started some distance east of where they were in the photographs, I don’t know, but where they appear in the photographs they are the skid mark. The skid marks themselves are on the incorrect side of the road but the vehicle would have been straddling on both sides of the road the middle of the road.”

56    And further at page 302, at lines 49 onwards:

“Q. Did you understand that the skid marks commenced only from one set of wheels on the driver’s side of the vehicle or the driver’s side of the trailer?

A. Yes. If I could use the element of the tyre marks as tyre marks, because there are skid marks and there are yaw marks, they are different types of marks altogether. The tyre marks at the eastern side of the intersection were skid marks, dual skid marks.

Q. That was from one set of tyres on the right-hand side of the vehicle or trailer?

A. Yes, I would suggest it would be from the trailer.

Q. How many wheels did this truck have, truck and trailer have? You’re the expert, tell me?

A. I have no clear recollection. I’m not sure if I would have that information. It could have been a 22 wheeler, I’m not sure it would have had a bogie drive or triaxial.

Q. Isn’t that important in working out what the skid marks you see in the photos represent?

A. I wouldn’t be able to see three sets of skid marks from three sets of dual tyres because they would be following each other.”

57    His evidence also was that the trailer could yaw, that is move, to the left. His evidence at page 308 of the Transcript was that:

“Q. You see Mr George, you’ve told us that the generally uniform curved path is indicative of a heavy brake application after the driver has commenced to steer right?

A. Yes

Q. Where did he apply the heavy brake application?

A. I don’t know.”

58    Further at page 314 of the Transcript, lines 17-22, Mr George said:

“The fact that wheels lock means that the brakes have then become inefficient. In a typical sense they are not working to slow the truck down any more. The wheels have locked and the only thing slowing the truck down with respect to the tyres is the friction that is generated between the tyre and the road pavement.”

59    His evidence at page 316 of the Transcript was that he did not know the height of the centre of gravity of this vehicle and that he made no particular calculations in relation to the subject vehicle. Mr George did not take into account the evidence of Mr Hatch. He largely just read his 1994 report.

The Plaintiff’s Submissions on Liability

60    It was submitted on behalf of the plaintiff that the defendant operated a workshop involved in maintaining and servicing the tankers. It was submitted that there were a number of problems with the condition of the tankers. Mr Derek Mirfin, called by the plaintiff, engaged in lengthy experience in the construction and maintenance of tankers and underbody components, and assisted in the remedying of the problems. He left that work on 19 December 1986.

61    The plaintiff claimed that he had experienced problems with the subject tanker, particularly the brakes and specifically the front wheel of the trailer bogey on the driver’s side, which was locking when the brakes were applied. This evidence was corroborated by the defendant’s records. This continued over a lengthy period, and the tanker was then put into the defendant’s workshop where a brake realignment was carried out on 6, 7, and 8 January 1998.

62    It was further submitted that a short journey was made by the plaintiff in the metropolitan area, after the plaintiff picked up the tanker. There were no problems. He then proceeded to the trip to Lake Cargelligo.

63    The plaintiff submitted that the only witness to the accident, Mr Hatch, corroborated the evidence as to the sticking of the brakes. His case was also based on the evidence of experts Mr Derek Mirfin, Mr Phillip Hayden and Mr Gibbons; the video-tape of the examination of the springs; and the photographs which showed damage to the near kerbside tanker bogey wheels. It was submitted that the totality of all the evidence showed that the cause of the accident arose from the defendant’s negligence in servicing and repairing the tanker. In particular, it was submitted that the S-cam axle rotation was contrary to the manufacturer’s recommendations, and that the defendant ought to have known that this caused severe vibration.

64    Furthermore, the defendant ought to have known that the repairs effected to the brake linings and bushes generally only provided temporary relief and that the vibration would have caused the loosening of the U-bolts on the suspension, which ultimately caused all of the brake torque to cause the small welds holding the spring perch to the right hand side front axle to fail. The axle then, on the right hand side, rotated inside the loose U-bolts, then when subjected to brake pressure, the front half of the left-hand front springs then have to absorb most of the torque of both brake units, which the nearside unit suspension cannot handle and the springs suffer gross distortion and this causes the front radius rod to cause a deflection of the steering, by bringing the nearside wheel forward.

65    The plaintiff asserted that the condition of the trailer was so bad, as supported by the expert evidence called by him, that this was the root cause of the accident. The plaintiff said that the evidence of Mr George, called for the defendant, was based on the evidence of the tyre marks, and did not consider what effect speeding would have had on a situation of proven mechanical failure.

66    The plaintiff’s case, in short, was that based on the inherent probability of events, the plaintiff had clearly demonstrated that the accident was caused by the defendant’s negligence in repair and maintenance of the brake system, and that there was no evidence of contributory negligence at all. This view was based on the circumstances leading up to the accident, including the history by the plaintiff of complaints of sticking brakes; the evidence of his steady driving from Yass to the crest of the hill; and the ‘on/off’ application of the brakes for some 220m prior to the collision site.

The Defendant’s Submissions on Liability

67 The defendant submitted that the plaintiff failed to establish necessary links in the chain of causation, in the complicated evidence in the case. The defendant said that Mr Mirfin’s evidence should not be accepted, and, notwithstanding that his evidence was admissible under s79 of the Evidence Act 1995, that does not make him into an expert.

68    It was also submitted that the evidence of Mr Mirfin, on which the plaintiff’s case largely relied, should not be accepted, because he is very close to the plaintiff; acts as an advocate for the plaintiff; sets himself up as an expert in every area related to the accident; and that he worked for the defendant and had failed to carry out the tasks which he was employed by the defendant to do.

69    Furthermore, although Mr Mirfin felt strongly about the S-cam rotations, he had left the defendant’s employ after 3½ years, with that work incomplete. Also, it was submitted that he made all assumptions in his evidence in favour of the plaintiff; he clearly attempted to steer fault away from the plaintiff; and his evidence was inconsistent. The defendant pointed out a series of inconsistencies in the evidence of Mr Mirfin, between his various statements and his oral evidence.

70    It was also submitted by the defendant, that the independent witness, Mr Hatch, who was following the plaintiff, confirmed that semi trailers frequently cut the corner and that thus his evidence supported the defendant’s case that the plaintiff was driving at an excessive speed. The defendant submitted that it was inconsistent with the brakes being locked, for the brake lights to flicker on and off. If the pedal brake is released, the brake should unlock. If the brakes are unlocked, there should not be continuous skid marks. This fact was not included in Mr Hatch’s statement of April 1988.

71    It was further submitted that Mr Hatch’s evidence that the vehicle did not appear to be slowing down, must be treated with caution, as it was early in the morning; there was no independent lighting; and his distance behind the trailer was uncertain.

72    It was submitted on behalf of the defendant that the evidence of the witnesses: Mr Alvis, and Mr Bannister, do not assist the plaintiff, as Mr Bannister conceded that the skid marks may not have been those left by the plaintiff’s vehicle, and Mr Alvis’s description was inconsistent with the photographic evidence and that the photograph at page 124 of exhibit B1 is consistent with Mr George’s opinion and consistent with the skid marks being on the correct side of the road.

73    The defendant contended that the essential missing link in Mr Mirfin’s evidence, and therefore in the plaintiff’s case was that the axle that it is essential for that case, that the axle went out of alignment before the roll-over, and that Mr Mirfin could not exclude the possibility and that the crucial part of Mr Mirfin’s evidence is, that in terms of steering and control, the important timing is when the axle went out of alignment and that Mr Mirfin could not exclude the possibility that that occurred when the truck went rolling down the hill.

74    The case for the defendant was that no matter what the standard of maintenance, no matter what was broken or what was fractured, if the Court cannot conclude that the axle went out of alignment before the roll-over, then the plaintiff must fail.

75    The defendant submitted that Mr George’s evidence, he being an expert, should be accepted, in that his evidence was that articulated vehicles encroached on the wrong side of the road and that the trailer was tracking outside the prime-mover immediately before the roll-over, as against tracking inside, as it normally should, if approaching at a correct speed. Mr George contended that tracking outside was consistent with an excessive speed injury into the corner.

76    The defendant relied on the evidence of both the plaintiff and Mr Mirfin, that to negotiate the bend safely, it was only necessary to use the ‘exhaust brakes’ or ‘jake brake’, to descend from the crest to the east of the collision point, and therefore why was a heavy application of the brakes necessary at all if the plaintiff, alert and driving at a sensible speed, could have used such means to close the brakes and that the inference should be drawn that the heavy application of the brakes is consistent with the plaintiff suddenly realising that he was going too fast for the corner, a corner which the skid marks indicated that he entered under control.

77    The defendant also relied, particularly, at the photograph on page 124 of the plaintiff’s exhibit B1, as contradicting the evidence of Mr Mirfin, and suggests that there was a deliberate cutting of the corner.

78    On the issue of contributory negligence, the defendant suggested that if the plaintiff lost the ability to control the semi, because the axle had come out of alignment, it was still consistent with him having approached the curve too quickly and that the axle’s displacement was likely to have occurred under braking, and that the only explanation for heavy braking is to effect a rapid slow down because of excessive speed.

79    It was further submitted, alternatively, that if the Court was satisfied that the plaintiff was experiencing axle-hop vibration, chattering, or abnormal noise, then he had shown a clear disregard for his own safety.

Findings of Fact

80    The defendant said that one of the difficult aspects of the plaintiff’s case is its reliance on the evidence of Mr Derek Mirfin. It was submitted by the defendant that Mr Mirfin’s evidence should not be relied on because he was a close friend of the plaintiff’s and was very close to the plaintiff during the course of the proceedings. It was further submitted for the defendant that Mr Mirfin was partisan in the way that he gave his evidence and endeavoured to do anything to not make admissions which would harm the plaintiff’s case. The evidence of Mr Mirfin should therefore not be relied on, and the plaintiff’s case should therefore fail.

81    The evidence and theory of the cause of the accident, of Mr Mirfin, was supported by the supporting experts, Mr Findlay and Mr Roger Perkins, and it is not Mr Mirfin’s evidence alone for which the plaintiff relies. There is no doubt that Mr Mirfin was close to the plaintiff and that in his evidence, he endeavoured to argue the plaintiff’s case at times, and that the did avoid making concessions which might harm the plaintiff’s case and that he endeavoured in the framing of his answers, to assist the plaintiff.

82    Mr Mirfin, although an expert, is not a professionally qualified person of higher education, and therefore is clearly not skilled in the niceties of Court presentation and the experience of giving evidence, and thus his manner to be an undisciplined witness. I am of the view that he endeavoured to avoid giving answers that were harmful to the plaintiff but, I was, however, particularly through the voir dire examination, very conscious that he had become emotionally involved in the plaintiff’s case and therefore watched him closely.

83    However, examining the video evidence, the photographs and the way in which he gave his evidence in the way the actual mechanics of the brake failure, I am satisfied that Mr Mirfin was truthful in that evidence and was giving evidence to the best of his ability and that he did not fabricate the theory for the benefit of the plaintiff and that he sincerely and honestly held the view that he expressed, which was supported by the photographs, the video and models which he manufactured, about which he gave evidence. I accept his evidence as to how the accident occurred.

84    It is to be noted that there was substantially no evidence produced by the defendant as to the actual circumstances of the brake failure. The evidence produced by the defendant was of an alternate theory, form Mr George, in which he made assumptions largely based on the skid marks which he observed. I do not accept the submission that the whole of the plaintiff’s case relies on Mr Mirfin alone. I rely also on the evidence of Mr Perkins and Mr Findlay.

85    Mr George did not take into account, in particular, in giving his opinion, the evidence of Mr Hatch, a witness, largely unchallenged.

86    Mr Hatch’s evidence is not challenged by the defendant. I accept the evidence of Mr Hatch that he saw the tail light flicking on and off, and I draw the inference that this is as a result of the plaintiff’s applying the brakes to slow down his vehicle, and that the brakes locked.

87    I find that the defendant had a duty to maintain and repair the braking and suspension systems of the trailer which it provided to the plaintiff’s company, and that it owed a duty of care to the plaintiff as the driver of that vehicle. The evidence before me leads me to the view that in failing to correctly provide a proper plate joining the trailer to the prime mover, but particularly the failure to properly maintain the brakes and suspension systems, the defendant breached its duty of care to the plaintiff.

88    On the evidence before me, the plaintiff was driving at a moderate and reasonable speed, on the evidence of Mr Hatch. The plaintiff was driving a vehicle which recently had work done on the brakes which would have dampened the effect of the symptoms which brakes would demonstrate to a driver from being worn.

89    In my view, the cause of the failure of the spring assembly and the breaking of the axle welds, which led to the locking of the brakes, was an application of the brakes at some stage which caused the failure of the brake system and the locking of the brakes.

90    The fact that the plaintiff had detected no problems prior to descending the hill towards the accident site, was as a result of the new parts on the braking assembly which Mr Mirfin said had been done correctly, and should have alleviated any thing which would have caused the plaintiff to have detected any problem. In my view, therefore, the defendant was guilty of negligence towards the plaintiff as alleged, and had breached its duty of care to him.

Contributory Negligence

91    The claim on contributory negligence is put on two bases, the first being that the plaintiff, on the evidence, was travelling too fast, and secondly, that he was on notice that the vehicle had problems, but nonetheless drove, and therefore contributed to the accident.

92    There is no evidence that the plaintiff was driving other than responsibly, and was driving within the safe limits of the vehicle. The evidence of Mr Hatch concerning the speed of the vehicle at the collision site, was consistent that with the weight of the prime mover and trailer, the brakes having failed, the whole vehicle skidded towards the railing with which it ultimately collided.

93    There is no other evidence that the plaintiff was travelling too fast in the circumstances, and in light of the experience of the plaintiff, and the evidence of the way in which he was driving and in the circumstances of the failure of the breaking to which I have referred above, I can draw no inference that the plaintiff was exceeding the speed limit and contributed to the negligence of the defendant.

94    The claim of the defendant that the plaintiff was aware of the problems may have been valid in respect of previous trips, but in this particular case the plaintiff had pointed out that there were problems in the brakes and had asked the defendant to fix those brakes which the defendant did, without as it happened, solving the problems which ultimately brought about the collision of the vehicle.

95    On this particular trip, the plaintiff would not necessarily have been put on notice of any problem through chatter or axle-hop, nor was there any other evidence that there were any problems with the braking system. The plaintiff would have been entitled to assume that the problems had been solved by the defendant. The defendant therefore fails to establish contributory negligence on the part of the plaintiff. I find, therefore, a verdict for the plaintiff on the plaintiff’s action, and a verdict for the plaintiff on the claim on contributory negligence.

Damages

Non-Economic Loss under the Motor Accidents Act 1988

96 Section 79(3) of the Motor Accidents Act 1988 (‘the Act’), provides for indexation of the amount of damages to be awarded. This is indexed on 1 October each year. The maximum sum permitted by the Act as at 1 October 2000, is $284,000.

97    The Act requires that there be a determination based on whether the injured person’s liability to lead a normal life, has been significantly impaired. There is no issue on this factor.

98    The amount of damages to be awarded is a proportion, determined according to the severity of non-economic loss, of the maximum amount which may be awarded. The maximum amount shall only be awarded in a most extreme case.

99    It was submitted by the plaintiff that this was a most extreme case. The defendant submitted that it was an extreme case, but not a ‘most extreme’ case.

100    The plaintiff was an active, hard-working driver. In his spare time, he would spray-paint trucks and panel beat and work on vehicles that were ‘written off’. He was highly active in sporting activities, sailing a dinghy and a powerboat. He would regularly go fishing with friends and take his two children sailing on a lake. He was a dedicated family man, spending a lot of his time with his children and would often visit his father at Jervis Bay for weekends and holidays. The plaintiff owned trail bikes and would take his children riding through the bush near his father’s home. That lifestyle has been seriously curtailed and he has had a total disruption of his former happy family life.

101    At the time of the accident, the plaintiff was thrown across the railway tracks. When he was discovered, he was flailing his arms trying to drag himself off the tracks, as he was unable to move his legs. The hot bitumen from the tanker had partly covered his body and head, leaving significant burns to a large part of his body, which resulted in his skin being very susceptible to skin irritations and further damage.

102    The plaintiff has a thoracic paraplegia, with no feeling below the nipple line. He was subjected to protracted hospital treatment and had to learn self-catheterisation bowel care, and aspects of daily living, including wheelchair skills. His size and weight meant that he had difficulty transferring in and out of his wheelchair.

103    The plaintiff had several changes in accommodation in the period of rehabilitation. During that time, his relationship with his family and wife began to break down due to the financial, emotional, and sexual strains on the relationship as a result of his injuries, he being incapable of performing any sexual functions. In 1991, the plaintiff separated and moved with the children to Cabramatta. He divorced in 1997, the children remaining with their mother. He has a regular relationship with his son, but his daughter only infrequently sees him.

104    The house at Cabramatta is not wheelchair accessible. Simple functions such as going to the toilet, washing, and getting in and out of bed are an ordeal. The plaintiff is prone to urinary tract infections and has frequent hospital admissions to various hospitals in the region where he lives. The plaintiff’s loss of bowel and bladder function causes the plaintiff to have frequent bowel and bladder accidents, which is extremely embarrassing to him as well as extremely inconvenient. It takes a considerable part of his day clearing up such functions and having others clear those functions, which causes him distress. He has to self-catheterise.

105    Being insensitive to pain in most of his body, the plaintiff frequently injures himself and frequently receives serious burns, of which he has no knowledge at the time, through a lack of pain. The plaintiff has lost much of his lung capacity and capacity to sit up straight, requiring him to hold himself erect with his arms. His food requires a high level of careful mastication and he is unable to have a denture plate fitted. He is subject to spasms in his upper body as well as having numbness down the outside of his left arm and left little finger.

106    The plaintiff has frequent accidents, falling out of the wheelchair, often having to spend hours in an often awkward position before someone can come and help him. He has severely lost his quality of life. The plaintiff has to spend a great part of his waking hours dealing with his problems and he is unable to enjoy a large part of his life.

107    All of the matters that I have set out above have to be offset against the plaintiff’s remarkable good humour and optimistic approach to life and enthusiasm for activities. These latter characteristics however, do not offset the fact that in my view, although there are worse cases, this is a most extreme case in terms of the legislation, and the plaintiff should be awarded the maximum to which he is entitled for non-economic loss.

Life Expectancy

108    The plaintiff at his present age, would have a life expectancy of 24 years, in normal circumstances.

109    The contentions of the plaintiff and the defendant vary to the extent that the estimate of the loss of life expectancy are between 10 and 15 percent for the injuries that he has sustained. The evidence also shows that same range.

110    It appears to me that in having a high level of accident potential because of his high level of activities, notwithstanding his terrible injuries, and the very frequent urinary tract infections and the injuries his activities bring about, cause me to consider that he has a slightly lower life-expectancy than the 10 percent contended and I find, for those reasons, that the proper reduction in life expectancy should be 12.5 per cent.

Economic Loss

111    The plaintiff is a spraypainter by trade, but worked as a contract driver which was seasonal work. In the winter months, the plaintiff would use his prime mover, working on container berths and using his spraypainting skills for private clients.

112    The plaintiff intended to work until sixty-five (65) years of age, a fact which is not unchallenged by the defendant, and thus I find that calculations should be made on a working life of sixty-five years. I can see no basis for assessing other than the normal fifteen percent (15%) reduction for vicissitudes which I find should be applied to these calculations.

113    It is submitted by the defendant that the plaintiff was a modest income earner, and that the plaintiff’s company produced a taxable loss of $11,000 in the 1986/1987 financial year, and paid the plaintiff a gross wage of $14,000, in addition to $3,933.40 in Social Security payments. The defendant submitted that the net weekly wage at the date of the accident derived by Dolman Bateman by averaging the three previous years, was $359.00, and there is nothing to suggest that this wage earning pattern would have reduced, except perhaps in terms of spending more time on recreational pursuits.

114    The defendant therefore submitted that the proper wage loss should be $500.00 per week for the balance of his working life less fifteen percent (15%).

115    It is submitted on behalf of the plaintiff that past and future economic loss should first be based on the average of the plaintiff’s pre-accident earnings, secondly based on figures supplied by the Financial Management Research Centre (FMRC) for Road Transport Operators.

116    The unusual nature of the plaintiff’s activities in spending a considerable part of his time in recreation and the seasonal nature of his work, makes an estimate of future of past and future economic loss difficult to assess.

117    The plaintiff, being paraplegic, cannot return to his pre-accident employment, and his skills would make it difficult to adapt to the workplace. His intellectual impairment would make it difficult for him to learn a more sedentiary occupation.

118    I consider that it is likely that the plaintiff would earn nearer to his previous income than to the figure calculated on the FMRC rates, and I therefore find that the sum of $520.00 per week for past and future economic loss. I will grant leave to the parties to submit draft orders based on the calculations made in that finding. I note that the calculation in the plaintiff’s submissions of the average of the Dolman Bateman amounts of $449.00 and $662.00 is suggested at $581.00. I consider that the average of the two amounts should be $556.00.

Out-of-Pocket Expenses

119    Subsequent to judgment being reserved, the parties have by letter advised agreement on out-of-pocket expenses as at 8 August 2000, at being $362,970.81, which I allow, and the HIC charge of $3,792.10, which I also allow. I grant leave to the parties to bring these figures up to date to the date of judgment.

Home Care

Past Gratuitous Care

120    The plaintiff’s claim for past gratuitous care is on the basis of his hospitalisation from 19 January 1988 to 4 July 1988. He was then transferred to a CRS operated house at Auburn and then to one at Ashfield, remaining until August 1989. It is conceded on behalf of the plaintiff that he has a poor recollection of everyday events. It is also clear on the evidence which he gave, that he did not recollect matters which clearly had occurred fairly recently, as deposed by Zully Nadile, the person providing him with considerable care.

121    Whilst at the CRS homes, the plaintiff’s family, as evidenced by the statement of Rhonda Keenahan and Graham Keenahan, would visit the plaintiff on weekends, and would provide gratuitous care. During the week, the plaintiff’s wife would visit him.

122    Whilst the parties resided at Berala House at Regents Park, which is owned by Paraquad, they rendered gratuitous assistance to the plaintiff, his evidence being that it was up to ten hours per day. The plaintiff only claims thirty-eight hours per week, less six hours for gratuitous assistance.

123    From the separation of the plaintiff and his wife, the plaintiff’s workers compensation insurer paid for home care for five hours per day. In addition, he received gratuitous care from friends, neighbours and children for two hours per day (Transcript 72.55, Transcript 73.35-55, Transcript 74.15, and Transcript 75.20-40).

124    The worker’s compensation insurer suspended payments because of the close friendship which had formed between the plaintiff and Zully Nadile. She has provided personal and domestic care for at least five hours per day, she being a trained nurse’s assistant. Ms Nadile assists the plaintiff with shower, bladder and bowel care, and regular catheterisations. The plaintiff has used the Bureau of Statistics’ average weekly earnings as the basis for calculating the cost of services.

Personal Care

125    It is submitted, and I accept, that there has been an acceleration in the plaintiff’s needs, and in his capacity to cope. The claim is for five hours of assistance per day to the age of sixty (60) years, which in the circumstances is modest. I accept that this assistance will accelerate. The plaintiff said that because of his obesity and high-level paraplegia, he will require a full-time carer from the age of sixty onwards.

126    I do not consider that the rate of deterioration, because of the nature of the plaintiff and his capacity to endure suffering, will require full-time care at that age. I do however consider that his need will increase by two hours per day from sixty onwards to age sixty-six (66) and thereafter full-time. This is as best an estimate that can be made. I allow the rate claimed for Dial-an-Angel which I prefer as set out in Exhibit B 2.405, which should be calculated using the five percent (5%) tables. I grant leave to the parties to submit the necessary calculations.

127    I reject the probability as suggested by the defendant that Ms Nadile will necessarily be providing future care. On the evidence, this is not an assessment that can be made on the basis of being more probable than not. It is a distinct possibility, but I cannot make that finding on the evidence and in the circumstances. All relationships are difficult. This relationship has additional complicating factors relating to the children of Ms Nadile.

Domestic Assistance

128    The circumstances of the plaintiff are such that the plaintiff cannot rely on friends and family to assist him with shopping, house-cleaning, cooking, making the bed, gardening and car-washing. He is, however, a very resourceful person and will be able to use his Nippy Wheelchair Transporter to do some shopping. However, the claim for shopping at three hours per week is, in my view, modest, and cleaning at five hours per week, is also modest.

129    I allow the fee of $18.00 per hour for shopping and $20.00 per hour for cleaning. I allow a handyman for car wash and gardening at $50.00 per week, and meal preparation by a dietitian at $37.00 per week, relying on the report of Ms Victoria Klymenko: Exhibit B2.327. I grant the parties leave to carry out the necessary calculations based on the date of judgment.

Accommodation

130    There is clearly a need to provide suitable residential accommodation to cover the plaintiff’s quite unusual needs. The plaintiff has produced a report of Mr Peter Hardiman, which sets out in considerable detail the necessary changes that need to be made for the plaintiff’s special needs, including adjustment of furnishings and service areas such as kitchens, telephone needs and security alarms. These are based on the plaintiff’s need to change to a suitable house on the same land. The present house is extremely dilapidated and in very poor condition. The present house is hopelessly unsuitable for wheelchair access both internally and externally. The plaintiff quite naturally wishes to stay in an area where he has had a long association, and my view, adaptation of the existing house would not be cost-effective.

131    On the evidence before me, the plaintiff’s house should be demolished, and a purpose-built house built on the same site should be constructed. In my view, this requires a pool and hydro-therapy pool because of the plaintiff’s special skin problems and the need for exercise. It seems to me that the proposed rooms for an enlarged bedroom and bathroom with additional storage, and a room for carer or friend, and a room for gym and exercise equipment and access laundry is a reasonable assessment. I am not satisfied that there is need for an additional room for computer equipment and study, but the adaptations to the house to include air conditioning and hydra-therapy room are essential to the plaintiff’s living. I would allow the sum of $500,000, largely based on Mr Hardiman’s report for this purpose, and ongoing maintenance costs of $18,000 per annum.

132    The plaintiff claims the sum of $43,680.00 for eighteen months rent paid when he came from Berala and separated from his wife. The defendant concedes that the rent was paid, but does not concede that it was an allowable expense.

133    The separation from his wife was as a result of her inability to cope with the plaintiff’s terrible injuries and the breakdown of the marriage, which was a result of the accident, and the consequent inability to perform to be a normal husband, including providing sexual satisfaction. I will therefore allow this sum.

Motor Vehicles

134    The plaintiff’s claim for motor vehicle’s is based on the fact that at the time of the accident, the plaintiff owned a prime mover, a Fairline, a Holden Utility, a Datsun, a Charade and a Nissan Navaro. The plaintiff carried out adaptations and modified a vehicle which was a Volkswagon Kombie Van, and a Holden Utility with additional wheelchair hoist, controls and power steering.

135    The plaintiff clearly needs a larger wheeled vehicle to accommodate the wheelchair, kumodechair, Quadrunner and luggage. To take these away, the vehicle would need to have a greater towing capacity to tow his ride-on mower to his on-site van at Swansea. In my view, the plaintiff needs a vehicle with towing and luggage capacity, and I think that a claim for replacement every three years is reasonable. This vehicle can serve for local needs as well, except for the use of the Nippy, the Nippy being a motorised tricycle which is obviously convenient and useful. This Nippy should be replaced on a ten-year basis. I will need to hear submissions on the proper figures for such a vehicle and for transport costs, and I grant leave to the parties to make submissions.

Diversionary Therapy

136    The plaintiff’s lifestyle has involved interest in motor vehicles and mechanical applications. He uses his skills to build pieces of equipment and modify equipment to suit his needs. He has remarkable skill at adapting the more complicated parts of a motor vehicle. The plaintiff has been using a fork lift which does not have power steering or manual commission, it has a difficult clutch, and it is difficult to access. It seems to me that the work the plaintiff will have to do to adapt vehicles, and the activities that he participates in, an automatic fork lift is a not unreasonable allowance which, including modifications, I allow at $29,950.00.

137    The plaintiff has learnt to use a computer and does his own accounts and filing, and although not computer literate, will require some training. This will permit paying bills and banking. The plaintiff claims $61,829.00, including furniture, training and ongoing service and software. It seems to me that this could be done at a cheaper rate for the period that he is likely to need such assistance, and I would allow the sum of $40,000 for this purpose.

Special Equipment

138    The plaintiff claims special paraplegic aides based on the report of Paraquad dated 28 January 1998, exhibited before me, and the Schedule annexed to the report of Victoria Klymenko of 7 February 1998. The special needs include aides such as pillows, a portable folding chair, a set of glide rims, an electric recliner chair, angle-held mirror, elastic shoelaces, long-handled shoe horn, long-handled bath sponge, and a long-handled toe washer amounting to some $1,900.00, in addition to the Paraquad report, which includes a series of chemicals, appliances, disposable gloves, shower hoses, medical detection exercise equipment and wheelchairs. It seems to me that the claim of $423.00 per week is reasonable, in addition to a claim for a $10,000.00 for the ceiling hoists listed by Ms Klymenko. I grant the parties leave to carry out the necessary calculations on the findings that I have made.

Recreational Household Needs

139    It is clear from the evidence that the plaintiff has been an avid user of water sports, and has purchased a Quadrunner Motor Bike, which enables him to go for a swim, ride on sand and ride into the surf, but its need to be submerged and thus become rusted requires replacement every two years. The two quotes obtained for different models is $10,415.00, and on the basis of replacement, calculates at $100.00 per week, which will need to be calculated with the appropriate multiplier.

140    The plaintiff also claims the cost of modification of his aviary, and claims $5,000.00. I would allow $3,000.00 for this.

141    The plaintiff’s needs for washing products and increased care for his ware on a clothes washer and clothes dryer, and claims $12,060.00 for the costs associated with that increase, based upon the five percent (5%) multiplier. I allow this figure to be calculated by the parties, based on the needs for an additional clothesline, portable clothes hanger and laundry basket and trolley. I would allow the claim of $1.80 per week, and I grant leave to calculate the amount.

Boating

142    A considerable amount of the evidence related to the plaintiff’s needs for boating, and his desire to sail in a vessel such as a Sloop which would permit him wheelchair access. I have examined the evidence of both the plaintiff and defendant, and took into account that he did take his children out but is now no longer likely to do that. Being a very optimistic person, the plaintiff has made several attempts to continue to sail, but his evidence was that he needs a boat large enough to accommodate a shower, toilet and somewhere to lay down to change his clothes in the event of him having a bowel accident. He said that he would like a boat large enough for him to sail in the Whitsundays, and use it as a caravan. The plaintiff claims an amount to compensate him in such way as properly reflects the amount he will incur by reason of his injuries, to properly sail, as he formerly intended.

143    This is an extremely difficult area in terms of what is likely that the plaintiff can achieve, taking into account his future physical deterioration and his growing obesity.

144    Taking into account the plaintiff’s various needs and the high level of incapacity, to provide entertainment on a reasonable cost basis. In addition, the plaintiff wishes to have a campervan which is appropriately modified. The one that he has now is derelict. It is estimated that the additional costs will be some $12,000.00.

145    I consider that the sum of $250,000.00 should be allowed to cover the various potential for construction and maintaining an appropriate vessel and a campervan and on-site van. It is very difficult to predict the likely course of the plaintiff’s incapacity, but this should allow for his purchase or renting of appropriate water vessels whether they be a cabin cruiser or sailing vessel appropriately modified for the plaintiff, and an appropriately modified campervan and on-site van.

146    I would allow the plaintiff the cost of a mobile phone, and accept that $10.00 per week represents an appropriate sum. The parties can make the necessary calculations.

Future Medical Expenses

147    The plaintiff has considerable ongoing medical needs, and claims the sum of $11,493.00 per annum, which I allow to be calculated in accordance with the findings I have made. I also allow $5,000.00 per annum for the cost of physiotherapy for the remainder of his life, as being clearly a need as a result of the injuries he has sustained.

Fox v Wood

148    A Fox & Wood Allowance has been agreed at $33,930.00 as at the hearing, but I will allow the parties to make any further submissions in relation to this.

Costs Fund Management

149    The plaintiff has not had a claim for brain damage, but he now has problems with his memory. The plaintiff demonstrated considerable deterioration in the witness box when affected by an infection. He is not educated, and will have difficulty accessing normal financial institutions. The plaintiff claims a need for fund management.

150    It seems to me that a plaintiff who is capable of operating a computer and who has run his own business, notwithstanding his intellectual restrictions, is capable of managing his own affairs, and is no less able to do it because of his injuries. In applying Nominal Defendant v Gardikiotis (1996) 186 CLR 49, I consider that the case has not been made out for the fund management.

151    Obviously, the plaintiff is not going to make any business decision when he is ill, but he is, in my view, because of his resourcefulness, is capable of making the necessary decisions, with whatever assistance he is able to obtain from the usual agencies.

Superannuation Loss

152    I have not heard from the parties on this matter, and will grant leave to the parties to address on this.

Orders

153    The orders therefore that I propose are as follows:

1. Verdict for the plaintiff on the action;
2. Verdict for the plaintiff on the claim of contributory negligence;
3. I grant leave to the parties to make submissions or propose draft orders bringing up to date calculations in respect of the findings that I have made;
4. I grant the parties liberty to apply in respect of any matter not covered in this judgment;
5. I reserve any question of interest; and
6. I reserve the question of costs.
oOo

Last Modified: 05/04/2001