Hare v Harmer

[2008] NSWDC 25

Pending Appeal:

District Court

CITATION:	Hare v Harmer [2008] NSWDC 25
HEARING DATE(S):	31 October, 1,2,5,6,7 November 2007
JUDGMENT DATE:	14 March 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict for the defendant. 2. The plaintiff is to pay the defendant’s costs of the proceedings. This order is suspended until 4pm on 2 April 2008 to allow either party to list the matter for further argument. 3. Exhibits will be retained for 28 days.
CATCHWORDS:	Motor vehicle accident - Causation - Speed - Bald Tyres - Wet Road - Obvious risk - Alcohol
LEGISLATION CITED:	Civil Liability Act 2002
PARTIES:	Gavin Brian HARE Luke HARMER
FILE NUMBER(S):	Wagga Wagga 86/2004
COUNSEL:	Plaintiff - M Cranitch SC - M B Inglis Defendant - B Hull
SOLICITORS:	Plaintiff - Commins Hendricks Defendant - George Mallos

JUDGMENT

1 Gavin Hare was very seriously injured on 6 November 1999 when the car he was driving crashed into a telegraph pole on Kooringal Road, Kooringal, a suburb of Wagga Wagga.

2 The car belonged to his friend, Luke Harmer, who is the defendant. All four of its tyres were completely smooth. The road surface was wet at the time of the crash.

3 The crash occurred after the rear wheels slid to the left as the plaintiff drove the car through the roundabout at the intersection of Kooringal Road and Lake Albert Road.

4 There was no issue that the plaintiff suffered severe injuries with ongoing significant disabilities.

5 The issues were:

(1) The cause of the crash. The plaintiff contended that he lost control of the car on the wet road because the rear wheel tyres were bald. The defendant contended that the cause was the speed at which the plaintiff drove the car.
(2) If bald tyres were the cause of the crash, whether the defendant was negligent in permitting the plaintiff to drive his car when it was not roadworthy.
(3) Whether the plaintiff took a risk that was obvious in driving a car, knowing it was not roadworthy.
(4) Whether responsibility for risk taking as between the plaintiff and the defendant is to be dealt with by the application of the principles of contributory negligence.
(5) The quantum of damages, if any, to be awarded to the plaintiff.

ISSUE 1 – THE CAUSE OF THE ACCIDENT

6 The car the plaintiff was driving at the time of the accident was a 1980 Ford Falcon Sedan. Its V8 engine had been modified to increase its cubic capacity. The cylinder head and camshaft had been machined to increase its power output. These modifications rendered the engine capable of delivering considerable power and acceleration to the wheels of the car when it was in particular power bands. The car was described as having a lumpy cam, that is, the transition through the gear box was not smooth. The engine was noisy when under acceleration.

7 The plaintiff does not remember anything of what occurred on 6 November 1999.

8 The evidence of witnesses indicated that the plaintiff applied heavy acceleration to the engine of the car as it left the roundabout. The question was whether in so doing he caused the car to slide out of control or whether this acceleration was an attempt to correct the sliding of the rear wheels before he reached the point at which he exited the roundabout.

Point at which slide commenced

9 The defendant was very drunk at the time of the accident. He was travelling in the front passenger seat. He said he found it difficult to remember what happened at the roundabout and he did not know the speed at which the car was travelling at the time. The defendant then stated that the car began to slide as it entered the roundabout.

10 Mr Wayne Halls was the rear seat passenger in the car. Mr Halls agreed that he was affected by alcohol at the time of the accident. He said that the rear of the car started to move out as it came to the middle point of its path around the roundabout and that as the car was leaving the roundabout it was sliding towards the gutter. Mr Halls was asked to place the point at which the slide commenced by reference to a clock face. He indicated a position at 10 o’clock or three-quarters of the way through the roundabout.

11 His evidence concerning the point at which the slide commenced appeared to receive some support from that of Mrs Rachel Harmer (formerly Slingo). Mrs Harmer was driving another car behind the car driven by the plaintiff. She observed that when the car driven by the plaintiff was about three-quarters of the way through the roundabout and just as it was coming off the roundabout, its rear started to slide to its left towards the gutter. In November 2002 Mrs Harmer provided a statement which she said:

As he went into the roundabout he was accelerating very hard … and about three-quarters of the way around the roundabout, the car started to slide.

These words were read onto the transcript of proceedings on 5 November 2007 at page 62. The statement was not in evidence.

12 In cross examination during the hearing she confirmed the details read to her that are set out in paragraph 11.

13 Mrs Harmer marked on Exhibit Q the point at which she stated that the car driven by the plaintiff started to slide. This position was inconsistent with her earlier evidence since it was virtually at the exit rather than three quarters of the way around the roundabout. Mrs Harmer agreed that the true position could have been one or two feet to the south of the position she marked.

14 Senior Constable Roesler drew in her notebook what was described by Detective Inspector Barr as a crude diagram of the marks that were made on Kooringal Road by the spinning tyres of the out of control car to the point where it collided with the telegraph pole. This diagram gave no indication that the tyre marks commenced as the car was turning the corner out of the roundabout. Detective Inspector Barr said tyre burn marks started at the apex of the roundabout, that is, at the head of the roundabout on its northern side, indicating the car was under harsh acceleration prior to impact. This was a proposition accepted by both Mr Bailey and Mr Griffiths, the traffic engineering experts.

Acceleration

15 The defendant’s evidence was that he told the plaintiff not to plant it. By this he said he meant that the plaintiff should not apply significant pressure to the accelerator. As to when this statement was made, the defendant exhibited some uncertainty, ultimately agreeing that he told the plaintiff not to plant it after the wheels had started spinning. Since it was necessary that significant pressure be applied to cause the wheels to spin, it became apparent that the warning to the plaintiff against planting his foot on the accelerator was given after the rear of the car began to slide.

16 Mr Halls said that, after the car started to slide, the plaintiff attempted to correct the slide but overcorrected and the car slid in the opposite direction.

17 Mrs Harmer stated that on approaching the roundabout the plaintiff touched the brakes of the car momentarily and then accelerated into the roundabout ahead of a car approaching from the right. Mrs Harmer stopped to give way to this car and then drove into the roundabout. She said the plaintiff continued to accelerate and:

The car was about out of the roundabout and the brake lights did not come on at all. … I could hear the revving sound of the car motor accelerating very hard and it was obvious he was trying to power out of the slide.

These words were also read to Mrs Harmer from her November 2002 statement and confirmed by her as correct.

18 There were problems with the evidence of the defendant, Mr Halls and Mrs Harmer.

19 The defendant agreed that his evidence could have been unreliable because he had at the time been heavily intoxicated. He said that his initially clouded memory of the circumstances of the accident had improved and that bits and pieces had come back over time. He agreed that he had spoken with Mrs Harmer often about the accident, as well as to lawyers and investigators. He accepted that he could not be sure that he had not been influenced by these conversations.

20 Mr Halls admitted that he was substantially affected by alcohol at the time of the accident. Further, Police Constable Roesler recorded in her notebook that Mr Halls stated:

Come around roundabout too quick it was slippery and we lost it.

21 It was apparent from other evidence given by Mrs Harmer that she was entirely unsympathetic to the plaintiff. She could not therefore be regarded as an unbiased or neutral witness. Mrs Harmer agreed that she had made no reference to the plaintiff’s accelerating into the roundabout when she spoke to Senior Constable Roesler at the scene of the accident or in her initial statement made in July 2002. She said she considered the initial statement to be deficient in its detail and she contacted the investigator to make a second statement in November 2002.

22 Mr Halls and Mrs Harmer did agree on one feature of the plaintiff’s driving as he negotiated the roundabout. They agreed that he took corrective action before the car spun around after it left the roundabout and collided with the telegraph pole. Mrs Harmer was satisfied that it was obvious that the plaintiff was attempting to power out of a slide.

23 Senior Constable Roesler’s diagram and the description of the position of the tyre marks provided by Detective Inspector Barr indicated that the wheels of the car started to spin under heavy acceleration after it had left the roundabout.

24 I find therefore that the rear wheels of the car commenced their slide at a point within the roundabout and that the plaintiff’s attempt to correct the slide by applying power to the engine caused the car to spin around and collide with the telegraph pole.

Speed

25 There remains the question of whether the initial sliding of the wheels was caused by the plaintiff’s driving the car through the roundabout at excessive speed.

26 Mr Bailey, the expert called by the defendant, was of the opinion that the most significant factor in the plaintiff’s loss of control of the car was his continued strong acceleration in a high powered vehicle, indicating that he travelled through the roundabout at a speed that was not reasonable.

27 Mr Bailey estimated the speed of the car at the time of impact at 50 – 60 kmh. This estimate was based on the damage caused to the car by the impact with the telegraph pole.

28 Detective Inspector Barr attended at the scene of the accident shortly after its occurrence. He noted that the collision had been to the side of the car at a point of strength where there are rails and pillars. He observed that the telegraph pole had intruded well into the cabin space of the car. Having regard to this damage and the distance of only 50 metres from the roundabout to the crash site, he formed the opinion that there had been a high speed impact.

29 Mr Griffiths, the expert relied on by the plaintiff, expressed doubt about the estimations of speed by reference to vehicle damage because they were based on testing carried out on later model vehicles. He said that there had been no testing of impact damage on cars manufactured in 1980 and thus the damage to this car could not be relied upon to estimate pre-impact speed.

30 Mr Bailey proceeded on the basis that the plaintiff lost control of the car as he was close to the exit of the roundabout. After considering the characteristics of the car and taking into account the modifications to its engine, he stated:

Torque at the rear wheels (in the Ford sedan) would be sufficient to induce a power slide by rapid acceleration on leaving the roundabout.

31 Detective Inspector Barr stated that the road was wet and he believed that the car had not been driven to the prevailing road conditions. These considerations, coupled with the marks of the tyres and the nature of the damage to the car lead him to the conclusion that the plaintiff had been driving at an excessive speed.

32 There was discussion between Mr Bailey and Mr Griffith concerning the speed at which the roundabout could be safely negotiated.

33 Mr Griffith’s estimate of a critical speed was based on a hypothetical 18 metre radius. His estimate was 40 kmh for tyres with good tread depth, reduced to 37 kmh for wet road conditions and to 21 kmh for tyres with no tread.

34 Mr Bailey disagreed with this calculation for two reasons. He said the appropriate calculation for wet road conditions based on an 18 metre radius was 39 kmh, reduced to 36 kmh to take account of smooth tyres. Further, he thought it was more realistic to calculate the critical speed of the roundabout in question on the basis that drivers would take a straighter path than following the 18 metre radius. He suggested a radius of 50 metres would be more appropriate.

35 Mr Bailey did not state his calculation of the critical speed for smooth tyres on wet road conditions for a radius of 50 metres. He did, however state that bald tyres were only dangerous at high speeds and that here we are talking about speeds under 50 kmh. Further, it was put by the defendant to Mr Griffiths that the critical speed for this roundabout on a dry road could be up to 80 kmh and on a wet road 50 kmh with minimal reduction to take account of smooth tyres.

36 The defendant stated that he had driven the car around this roundabout at 60 kmh on many occasions without adverse consequences.

37 This brings the evidence to the following position:

(1) The defendant’s estimate of the critical speed in wet conditions at this roundabout was marginally less than 50 kmh;
(2) Testing of post 1980 model vehicles indicated a pre-impact speed of 50 to 60 kmh;
(3) The plaintiff had accelerated twice prior to impact with the telegraph pole:
(a) at the entrance to the roundabout in order to enter ahead of a car approaching from the right; and
(b) after the rear wheels of the car slid to the left.

38 This evidence suggested that at the time of the initial slide the plaintiff was travelling at a speed of less than the estimated impact speed of 50 to 60 kmh, assuming that this estimate can be relied upon. This was within the speed put forward by the defendant as that critical for a car with smooth tyres on a wet road.

39 The indication provided by this evidence was reinforced by Mr Bailey who, in response to my own questions concerning the dangers of driving with tyres having no tread, stated that smooth tyres are dangerous at higher speed and continued:

We’re talking lower speeds here, under 50 kilometres an hour. As speed goes up then in wet conditions there can be other issues. (Transcript 6/11/07, p. 48.39)

40 On the basis of this evidence I have not been satisfied that speed was the cause of this accident.

Wet Road Conditions

41 The plaintiff contended that the rear wheels of the car slid when traction was lost on the wet road surface within the roundabout. Mr Griffiths offered the opinion that it was highly likely that the bald tyres were a significant contributing factor to the cause of the crash. His opinion was based upon instructions that there was sufficient moisture on the road to provide a wet road surface.

42 The defendant challenged this opinion. There was much technical evidence concerning the road holding properties of tyres and the consequences of driving with bald tyres. I was pointed to the technical differences between hysteresis and adhesion, both of which are required to allow a tyre to remain in contact with the road surface.

43 Mr Griffiths’ opinion was that the necessary degree of friction to provide adhesion could be significantly reduced when the road surface was wet with particular consequences when bald tyres were used.

44 Mr Bailey disagreed, stating that a bald tyre was no more likely to lose contact on a wet road surface than a new fully treaded tyre unless there was an area of standing water. In that case, he said, a bald tyre would more readily aquaplane than a tyre with more than minimal tread. He defined standing water as water standing to a depth that covered the asperities in the road surface. Asperities are irregularities in the road surface created by the materials used in its construction.

45 Mr Halls, Mrs Harmer, Detective Inspector Barr and Senior Constable Roesler all described the road surface as wet at the time of the accident.

46 A certificate provided by the Bureau of Meteorology established that it had been raining intermittently at the Wagga Wagga Automatic Weather Station, believed to be at the Wagga Wagga Airport, a moderate distance from the roundabout in question, during the day on 6 November 1999. The showers appeared to be very light. Between 6:43 pm and 6:55 pm 0.8 mm of rain fell at the airport. The next rainfall was 0.6 mm between 8:00 pm and 8:30 pm. The accident occurred at about 8:15 pm.

47 It can readily be accepted therefore that at the time of the accident the road surface was wet.

48 The condition of the road surface within the roundabout at the time of the accident was not known because it was resurfaced in the week following the accident. Senior Constable Roesler said that she observed no pools of standing water in the area that she inspected, which appeared to extend from the point from which the tyre marks commenced.

49 Mr Bailey pointed to photos in evidence of the worn and uneven surface of Kooringal Road on its approach to the roundabout in a north-south direction. He said that this was the type of wear that was typical of a road where vehicles, particularly heavy vehicles, were required to apply brakes before they entered the roundabout. Further, it was the type of wear that would lead to the presence of standing water. I did not regard this material as providing any evidence to suggest that the surface of the roundabout was or was not similarly worn.

50 The defendant rejected as a possibility the presence of standing water in a small area of depressed surface within the roundabout that Mr Griffiths noted from examination of the levels shown on the drawing Exhibit Q. This area was said by the defendant to be too small to have been effective in causing the rear tyres of the car to aquaplane. It was also pointed out that there were cross falls in the immediate area of the depression that, in theory, would provide for standing water to drain away.

51 Notwithstanding the matters raised by the defendant, I have been influenced by the following factors in deciding this issue:

(1) The evidence of all witnesses that the road was wet.
(2) Having regard to the evidence of the small quantities of rainfall recorded as having fallen on 6 November 1999, observations of the wet road surface indicated that it had rained close to the time of the accident.
(3) Mr Halls described slippery road conditions to Senior Constable Roesler immediately after the accident.
(4) Mrs Harmer described the road as shiny.
(5) The evidence that road works were carried out in the roundabout within one week of the accident. This evidence suggested that its surface was in need of repair.

52 These factors point to a road surface that was wet and slippery, whether because the asperities had been worn down and it was smooth or because there was an area of standing water in the depression identified by Mr Griffiths.

Issue 1 - Findings

53 I find that:

(1) the rear wheels began to slide before the car left the roundabout;
(2) the plaintiff accelerated after the slide commenced in an effort to power out of the slide;
(3) this acceleration caused the wheels to spin and the subsequent loss of control of the car and its collision with the telegraph pole;
(4) the speed at which the car was driven at the time the slide commenced, in ordinary circumstances, was not excessive;
(5) the road surface was sufficiently wet to cause the bald rear tyres of the car to aquaplane and slide;
(6) the wet road surface and the bald tyres lead to a situation where, as stated by Detective Inspector Barr, the car was not driven to the prevailing conditions;

(7) the bald tyres were a substantial contributing factor to the accident.

ISSUE 2 - NEGLIGENCE

54 The particulars of negligence alleged against the defendant were:

(a) Failed to take any or any adequate precaution for the safety of the plaintiff;
(b) Failed to ensure that the motor vehicle being driven by the plaintiff was fitted with safe and roadworthy tyres;
(c) Failed to warn the plaintiff of the danger in driving the motor vehicle;
(d) Allowed the plaintiff to drive his vehicle which was not roadworthy and which not safe to be driven;
(e) Failed to maintain or adequately maintain the vehicle in a good and roadworthy condition.

55 The defendant’s response was that:

(1) the defendant owed the plaintiff no duty of care in circumstances where the accident was caused or contributed to by the plaintiff’s driving the car at a speed that was too fast, with bald tyres on the wet road and affected by alcohol;
(2) alternatively, the defendant did not breach any duty owed to the plaintiff in circumstances where the plaintiff drove the car at a speed that was too fast knowing that the tyres were bald, the road was the wet and he was affected by alcohol;
(3) any breach of duty by the defendant was outweighed or overwhelmed by the plaintiff’s contributory negligence;
(4) the unsafe driving conditions created by the bald tyres were an obvious risk of which, by virtue of the provisions of the Civil Liability Act 2002, the defendant was not required to warn the plaintiff.

56 A number of matters arising from the pleadings and particulars were not in issue:

(1) The plaintiff returned a blood alcohol concentration of 0.1 when tested after the accident. The evidence of the witnesses, including Mrs Harmer, indicated that he showed no adverse signs of intoxication and he appeared to be capable of driving. Mrs Harmer said that she observed nothing untoward in the plaintiff’s driving until he accelerated into the roundabout. It was not therefore claimed by the defendant that s 50 of the Civil Liability Act 2002 applied.
(2) I have already decided that the speed at which the plaintiff drove the car in the roundabout was excessive only in the context of the prevailing conditions.
(3) The car was not roadworthy because all four tyres were completely smooth. There was no evidence of any other defect in the vehicle.

57 The remaining issues were:

(1) The extent of the plaintiff’s knowledge of the condition of the tyres on the car.
(2) The obligation, if any, of the defendant to warn the plaintiff of the condition of the tyres.
(3) The obligation, if any, of the defendant to prevent the plaintiff from driving the car.

The extent of the plaintiff’s knowledge

58 The defendant’s evidence was that his car had been off the road for about one month prior to 6 November 1999. It had been parked during this period at Mrs Harmer’s home where the defendant had worked on it to prepare it for registration. The plaintiff denied any memory of this.

59 Mr Harmer said that the plaintiff in the past had worked on his car with him but he had done none of the pre-registration work and he had not discussed this work with the plaintiff.

60 The plaintiff agreed that he sold the defendant the wheels that were on the car at the time of the accident. This transaction took place some time before the accident. The tyres on these wheels were described by the plaintiff as: …not real good.

61 Mr Wayne Halls had some memory of the events of 6 November 1999. He said he arrived at the plaintiff’s home at about 4 pm. He drank beer before he arrived, took a carton of beer with him and drank while he was there. Another friend, Tim, arrived. Tim’s surname and whereabouts were unknown to either party. Mr Halls said that Tim drove him and the plaintiff to the home of Mr Halls’ grandfather to pick up two tyres. These tyres had some tread on them. The plan was to fit the tyres to the defendant’s car and to take it to Elizabeth Avenue, near Wagga Wagga Airport to do burn outs.

62 The defendant arrived at the plaintiff’s home at about 5.30 pm, having been at an hotel drinking since 10 am. He agreed that he was so substantially affected by alcohol that he fell down the steps of the plaintiff’s home when the group left to pick up his car.

63 The defendant said that while at the plaintiff’s home he saw some tyres near the shed and asked if he could have them as his were not good. Tim then drove the plaintiff, the defendant and Mr Halls to Mrs Harmer’s home in Cochrane Street.

The requirement for a warning

64 Mrs Harmer said that the plaintiff, the defendant and Mr Halls arrived at her home at about 8 pm. The plaintiff and the defendant came into her lounge room where the defendant said that he wanted to take the car. She addressed them in the following terms:

I said they were fucking idiots for wanting to take the car because it’s been raining and it had three bald tyres.

The plaintiff said he was going to drive the car to his house. When she told him that he was not taking the car, the plaintiff grabbed the keys from the kitchen bench, went out and started the car. She said that Mr Halls was standing in the doorway of the kitchen and lounge at the time of this exchange.

65 Mr Halls denied any memory of this conversation. He did not remember any conversation concerning who was to drive or whether Mrs Harmer was in fact at home at the time.

66 The defendant agreed that there had been an argument with Mrs Harmer surrounding the fact that he had spent the day drinking in the course of which she said:

You’re a fucking idiot. You’re not taking the car, it’s got bald tyres on the back and it’s been raining. And where have you been? I’ve been with the kids all day.

He said the plaintiff went to the rear of her property and reversed the defendant’s car onto the road while he continued to argue with Mrs Harmer. The defendant walked to the car with the intention of driving. The plaintiff told him he was too drunk to do so.

67 I have already referred to the defendant’s apparently recovered memory and his agreement that he discussed the events of the night with Mrs Harmer. The statement he provided in July 2002 made no reference to this conversation.

The obligation to prevent the use of the car

68 The defendant agreed that he was aware that the tyres were bald and that he was aware that it was dangerous to drive on wet roads with bald tyres. He agreed that he could have stopped the plaintiff from driving the car. He said he was too intoxicated to judge who was and who was not driving.

69 The defendant said the plaintiff knew the tyres were bald, that the plaintiff wanted to drive and he did so.

Issue 2 - Findings

70 I have already expressed my doubts about the evidence of the defendant concerning his recovered memory, particularly in the light of his concession that he had discussed the events of the evening of 6 November 1999 a number of times with Mrs Harmer. I have therefore placed little weight on this evidence.

71 I was similarly unimpressed by the evidence of Mrs Harmer. Her evidence of a warning concerning the tyres of the car was undermined both by her obvious animosity towards the plaintiff and her statement that, having told the defendant in somewhat imperative terms that he was not to take the car, she then moved her own car to allow the plaintiff to drive it onto the road.

I have therefore placed little weight on her evidence concerning a warning.

72 There was evidence independent of this alleged conversation from which I have concluded that the plaintiff must have been aware of the condition of the tyres on the defendant’s car.

73 The plaintiff knew that the tyres on the wheels that he sold to the defendant were not good.

74 The very purpose of going to Cochrane Street to collect the car and bring it back to the plaintiff’s home was to replace the tyres with those obtained earlier in the day from Mr Halls’ grandfather. These tyres were said to have at least some tread on them.

75 I regard this evidence as sufficient to dispel the proposition that the plaintiff was unaware of the condition of the tyres on the car.

76 The proposition that the defendant, in a highly intoxicated condition, was in breach of his duty to the plaintiff in failing to prevent him from driving the car is also rejected.

77 The claim that a duty of care existed necessarily involves an element of reliance on the plaintiff’s part. I appreciate that the practice in dealing with motor vehicle accidents where the parties to a claim are frequently strangers has been to regard it as unnecessary to provide specific evidence of reliance.

78 In this case, the plaintiff was not only aware of the condition of the tyres, he exerted his will, prevented the defendant from driving and took responsibility as the driver for the car and its occupants.

79 I agree with Detective Inspector Barr that the plaintiff did not drive to the road conditions prevailing at the time of the accident. Those conditions involved the very dangerous combination of a wet road and bald tyres.

80 I find that responsibility for the accident rests with the plaintiff.

81 There will be a verdict for the defendant.

ISSUE 3 – OBVIOUS RISK

82 My finding that the plaintiff was aware of the condition of the tyres on the car he was driving at the time of the accident necessarily involves a finding that he took a risk that was obvious.

83 His claim therefore fails on this ground also.

ISSUE 4 – CONTRIBUTORY NEGLIGENCE

84 In the light of my findings concerning primary negligence, it is not necessary to consider the issue of contributory negligence.

85 Were it to be considered that, notwithstanding that the plaintiff was aware of the condition of the tyres and that he took control of the car, the defendant retained some responsibility to prevent him from driving the car, I would assess the plaintiff’s contributory negligence at 85%.

ISSUE 5 - DAMAGES

86 The parties were at issue on compensation to be allowed for non economic loss, past and future income loss, past and future personal and domestic care, and past and future medical expenses.

Non Economic Loss

87 The plaintiff had a significant pre-accident history of anti-social behaviour and physical injury. It was acknowledged on behalf of the plaintiff that he was no angel prior to the accident.

88 His behaviour prior to the accident displayed a degree of immaturity and an absence of self control. He had a driving record that included offences of speeding, failing to obey a stop sign, driving without a licence and driving an unregistered and uninsured motor vehicle. He had a criminal record involving malicious damage and use of offensive language in a public place.

89 Notwithstanding the plaintiff’s denials, there was evidence that he regularly drank to excess.

90 There was domestic violence in the course of his four year relationship with Megan Foley. One such incident lead to her requiring hospital treatment. Others witnessed the plaintiff verbally abusing Ms Foley. There was evidence of temper outbursts at his mother’s home in the course of which he smashed walls.

91 Many of the plaintiff’s pre-accident physical injuries were the result of his off road motor cycling activities in the course of which he suffered injuries to his knees, clavicle, leg, wrist and toes. He suffered wrist and elbow injuries while employed at Cargill Foods. The plaintiff said that none of these injuries was of lasting effect. There was no evidence that he suffered from any physical disability at the time of the accident.

92 It is against this background that damages are to be assessed.

93 At the time of the accident the plaintiff was 21 years old, he is now 30. It was agreed that his whole person impairment as a result of his injuries exceeded 10%.

94 His injuries included an extremely severe traumatic brain injury, some physical injuries, in particular affecting his right arm and dominant right hand, and multiple bruising and abrasions. The brain injury has resulted in cognitive and physical impairment. His earliest memory of events preceding the accident was of driving from Brisbane to Wagga Wagga in August or September 1999. His first memory after the accident was of his birthday on 8 January 2000. Medical records indicated that he suffered a period of 72 days post traumatic amnesia.

95 The plaintiff was admitted to Wagga Wagga Base Hospital after the accident. One month later he was transferred to the Liverpool Hospital Brain Injury Unit where he was treated until May 2000. He was then transferred to the Tarkarri Rehabilitation Centre in Albury and from there he returned to his mother’s home in Stillman Street, Kooringal.

96 After the plaintiff recovered consciousness he had little physical or mental capacity. He was unable to speak or walk. He used a wheelchair for five to six months. At the Brain Injury Unit he was treated with speech therapy and occupational therapy in order to restore some of his capacity.

97 At Easter 2000, in the care of his brother, he stayed overnight at a Chatswood Motel and spent a day at Taronga Zoo. It was necessary for his brother to assist him in and out of a wheelchair and in eating because he still lacked the co-ordination necessary to feed himself. He remained on a diet of soft foods. His right arm remained weak and could not be straightened. He was unable to hold things.

98 The plaintiff demonstrated significant anger and frustration throughout his period of rehabilitation because of his lack of capacity. His time at Tarkarri was not happy. It was reported that he failed to co-operate with rehabilitation providers and was intent on returning to his home.

99 He was ultimately discharged in June 2000, into the care of his mother. Mrs Hare stated that at that time he was walking and speaking a little. His continued rehabilitation was provided by Wagga Wagga Base Hospital where he had speech therapy and by the Commonwealth Rehabilitation Service.

100 The CRS arranged a fitness program at a local gymnasium and retrained him in driving so that he regained his driving licence. It was reported that he worked very hard at the gym program. He has ridden his motorcycle in the bush since the accident but he stated that he has since sold the motorcycle.

101 His activities since he resumed driving have lead to the loss of his driving licence. The record indicated a number of traffic violations including speeding offences and a charge of mid-range PCA. On 29 July 2006 he became frustrated at the continued barking of a neighbour’s dog, took his mother car and drove it around doing skids and stuff. Mrs Hare said that the plaintiff’s hearing appeared to be more sensitive since the accident and the dog had been barking all day. The plaintiff became annoyed and aggressive. He took her car and, after driving around, deliberately drove it at the gates in her driveway, shattering the windscreen. She said he had never behaved in this way in the past. Fearing for his safety, she called the police. It was as a result of this incident that the driving licence has been suspended.

102 The plaintiff has received a warning from the Roads and Traffic Authority, as an habitual offender, that he faces the prospect of the permanent loss of his licence.

103 There was evidence before the court that was highly suggestive of a continuing practice of drinking to excess.

104 The plaintiff complained of the following difficulties and disabilities:

(1) His right arm remains weak and he is still unable to straighten it. He finds it very difficult to write, his handwriting being messy and hard to read. His left arm is said to be stronger because he places greater reliance on it.
(2) His memory has improved but it is still affected.
(3) His speech remains affected, particularly when he is tired.
(4) He has headaches, which have reduced in frequency to about one per week.
(5) He continues to walk with an awkward side to side rocking gait.
(6) He continues to have difficulties maintaining his balance.
(7) He continues to become easily agitated and aggressive.

The claim in respect of these disabilities was amply supported by the medical evidence.

105 The plaintiff’s balance difficulties were said to be responsible for a fall he suffered at home. He injured his head and required 10 stitches. There was an indication in the hospital clinical notes that at the time of the fall the plaintiff was affected by alcohol.

106 Although he has balance problems when walking, the plaintiff is able to cycle for extensive distances around Wagga Wagga. The plaintiff said that he travelled close to 600 kilometres in 12 to 18 months, his only difficulty being when he negotiates a turn to the left.

107 He stated that he used a wheelchair for two months prior to the hearing because of the development of increasing pain in his left leg. His balance difficulties made it necessary to use a wheelchair rather than crutches. He denied that his leg pain was the result of climbing a fence in response to the barking dog. Both the plaintiff and Mrs Hare stated that under no circumstances would he be capable of climbing a fence. Mrs Hare said that she had suggested that he use the wheelchair.

108 The plaintiff continues to cycle notwithstanding this pain.

109 Mrs Hare said there had been many changes in the plaintiff since the accident. His pre-accident quick-tempered nature is now much worse and he easily becomes agitated, worked up and aggressive. She said she does her best to calm him but he has broken doors in the house and put his fists through several walls. Mrs Hare also stated that he used very bad language, much worse than before the accident.

110 The defendant has maintained contact with the plaintiff. He agreed with Mrs Hare that he was now shorter tempered.

111 The main dispute between the medical experts for the parties related to the extent of the plaintiff’s impairments.

112 South Western Brain Injury Rehabilitation Services reported on the plaintiff’s progress in the period of its care. The report confirmed his problems with ataxic gait. The right hand was described as slower and less accurate because of decreased strength and control. His pincer grip was reduced. The contracture at the elbow and poor shoulder control reduced his capacity to reach in all directions. He was impaired in communication because of difficulties with speech, which were worse when he was fatigued. He encountered word finding and expressive language difficulties.

113 The neuropsychological assessment undertaken at the Brain Injury Unit indicated severe impairments of attention, processing, verbal generativity, verbal expression and visual memory. The plaintiff was described as distractible, impulsive and disinhibited.

114 It was evident that there was some improvement in the plaintiff’s condition after the date of this assessment, the difference between the parties relating to the extent of that improvement.

115 Dr Langeluddecke tested the plaintiff in September 2003. She assessed his pre-accident intellectual capacity to be within the low average to average range. Her tests indicated a current borderline intellectual capacity. Dr Langeluddecke pointed to a number of limits and deficiencies found on testing. She reported limits in attention, mental and motor speed, immediate short term memory, capacity for new learning, intellectual and executive adoptive functions. These, she said, were typical of an extremely severe traumatic brain injury. In addition she noted that the plaintiff had significant emotional, social and behavioural sequelae from his injury. In Dr Langeluddecke’s opinion the plaintiff was not likely to improve further.

116 An MRI scan of the plaintiff’s brain was undertaken in November 2003. Dr Coffey reported in December 2003 that the scan indicated major and diffuse brain damage. He made particular reference to the presence of damage to frontal regions of the brain, greater on the right. He said that this strengthened the possibility that the plaintiff’s personality might have been changed as a result of the accident.

117 Dr Lowy in November 2005 agreed. He reported that the MRI showed major and diffuse brain damage and that the resulting major cognitive impairment was inescapable and lifestyle limiting.

118 Dr Lowy also reported that the plaintiff had made an outstanding whole person recovery but he was over confident and lacked insight into the extent of his permanent brain injury, his impairments and disabilities. Dr Lowy said there was an urgent requirement for occupational therapy to undertake an assessment of the plaintiff’s functional impairments. He expressed concern that without this assessment the plaintiff would become increasingly isolated and depressed. He was concerned that the plaintiff was drinking to excess.

119 Dr Mellick in November 2005 took a different view of the MRI scan. It appears that Dr Mellick administered only minimal verbal testing. He accepted at face value the reports of gains made by the plaintiff rather than applying the sceptism expressed by Dr Lowy. He regarded them as indicating significant improvements and said that there was potential for further improvement. Amongst the matters referred to by Dr Mellick as indicating that the plaintiff was no longer behaving abnormally was his capacity to drive to Sydney for his appointment.

120 Since the date of Dr Mellick’s report, however, the plaintiff’s licence has been suspended as a result of his aberrant behaviour and he is in danger of a permanent loss of his licence.

121 The episode involving the suspension of the plaintiff’s driving licence as well as other evidence of continued abnormal behaviour and disinhibition, lead me to place little weight on Dr Mellick’s opinion.

Findings

122 The disabilities to which I have already referred established a significant degree of permanent physical and intellectual impairment.

123 The plaintiff’s behaviour prior to the accident was less than optimal but he had prospects for improvement with increasing maturity. Since the accident his capacity for self control has clearly decreased.

124 The plaintiff displayed a level of frustration that demonstrated that he was keenly aware of the physical and intellectual limits imposed upon him since the accident.

125 I have assessed his non economic loss at $275,000.

Income Loss

126 At the time of the accident the plaintiff had a reasonable work history for a young man of 21 years without skills or qualifications. He left school midway through year 9, having repeated year 8. He secured an apprenticeship in carpentry working with his brother. He pursued the apprenticeship until a down turn in available work lead to the closing of his brother’s building business. He then obtained work laying cables for cable television.

127 In 1997 he moved to Canberra with Ms Foley and obtained employment there in a number of unskilled positions. In 1999 he moved to Brisbane where his father lives. He returned to Wagga Wagga when he was unable to find work in Brisbane.

128 Shortly after his return he commenced employment with Byrne Trailers, initially cutting lengths of steel for fabrication. The plaintiff said he worked well with Mr Anthony Jones, his supervisor, and that Mr Jones had proposed training him as a welder through an apprenticeship. According to Mrs Hare it had been proposed that he start on this work in the week following the accident.

129 Mr Conway gave evidence that he had completed a welding apprenticeship at Byrne Trailers and had worked there as a design draughtsman. The plaintiff had cut steel to Mr Conway’s designs. He said the plaintiff held a responsible position because inaccuracy in the cutting of steel resulted in costly waste. He described the plaintiff as energetic, efficient and accurate in his work. The plaintiff also undertook some occasional welding which had impressed him and the production manager. He confirmed that consideration had been given to putting the plaintiff on as a welder.

130 The plaintiff has attempted some work since the accident. CRS obtained a work experience position for him detailing cars in a car yard. He found the work difficult and dull. He was not offered a job at the end of the work experience period.

131 Between October and December 2000 he returned to work at Byrnes Trailers. He worked as a cleaner part time, working four hours per day for three days per week. His tasks included sweeping and mopping. He said he was slower at this work than the full time cleaner and the work was difficult because of his balance problems. Mr Conway was able to observe the plaintiff on his return to work. He said that the plaintiff was unable to do his previous work of sawing lengths of steel. He said he became frustrated and angry and was unable to carry out even the simplest of tasks.

132 The medical experts agreed that the plaintiff could not return to his pre-accident employment.

133 Dr Mellick was of the opinion that the plaintiff was not totally incapacitated but did not express an opinion concerning the work that the plaintiff might be capable of performing.

134 Dr Coffey and Dr Lowy reported that the plaintiff’s prospects of obtaining employment were minimal, both suggesting that he might be capable of part time sedentary work in a protected work place.

135 Dr Langeluddecke considered the plaintiff unlikely to obtain employment in the open market.

136 Dr Sharp said that the plaintiff was fit for work that took into account his motor problems and his altered cognitive functions. He suggested that a vocational assessment be undertaken.

137 Mr Ravagnani undertook a vocational assessment of the plaintiff. He said the plaintiff was unlikely to cope with any form of employment because of his functional limits, problems with anger management, unsteady gait and balance problems and susceptibility to fatigue. Mr Ravagnani was of the view that the plaintiff’s best prospect was part time work in a supported environment.

138 The plaintiff agreed that he was very keen to obtain some form of paid employment. All experts, including the occupational therapists, made reference to the plaintiff’s expressed wish to return to work. Dr Sharp suggested that the plaintiff would thrive on any work that was offered to him.

139 It was not suggested to the plaintiff that he had made no effort to find work and there were frequent references in the expert material to the plaintiff’s expressed wish to return to some appropriate form of work.

Findings

140 I have regretfully come to the conclusion that there is no realistic prospect that the plaintiff will secure employment in the open market. There is an outside possibility only that he will find a part time position in a supported environment. It is now more than eight years since the date of the accident and in this period no such position has become available. This possibility has been provided for in an allowance for vicissitudes of 20%.

141 The defendant argued that the plaintiff’s income loss should be calculated by reference to the figures shown in his pre-accident tax returns. This submission overlooked the plaintiff’s youth and inexperience in the years leading up to the accident. At the time of the accident he appeared to have settled into a position where his work and abilities were respected and where he had prospects of advancement.

142 There was no evidence of what would have been involved in a welding apprenticeship or of the level of income that might have been earned by the plaintiff while apprenticed. I have calculated his past loss of income on the basis that he would have earned one half of his pre-accident income for an apprenticeship period estimated to be three years.

143 Thereafter I have assessed his past income loss in the amount claimed. I have assessed his future income loss in the amount claimed, reduced by 20% for vicissitudes.

144 The assessment is:

Past economic loss $151,086
Past superannuation $16,731
Future economic loss $353,920
Future superannuation $37,193

Care Requirements

145 Mrs Hare gave evidence of the extensive personal care provided to the plaintiff whilst he remained in hospital and after he was discharged. After the plaintiff was discharged to her home she and Ms Foley together provided for his personal care needs. The plaintiff’s relationship with Ms Foley ended shortly after he was discharged. Mrs Hare then became his sole carer.

146 Mrs Hare said that when the plaintiff came home he could walk very little. He had no wheelchair and therefore needed assistance with mobility.

147 For two months she provided him with all personal assistance and domestic care. At the end of two months he was able to do things such as making a sandwich and helping to make his bed.

148 She took him to his gymnasium and waited for him. She took him to doctor’s appointments at least fortnightly. She said that she was unable to leave him at home alone.

149 Mrs Hare estimated that in the period commencing two months after the plaintiff was discharged from hospital until June 2002 she spent three to four hours a day on the plaintiff’s care. Since that period and continuing she continued to provide considerable assistance, estimated at between half an hour and 2 hours per day.

150 The assistance provided included assistance with showering. The shower in Mrs Hare’s home is over the bath. The plaintiff’s balance problems are such that he cannot stand in the bath and he therefore sits to shower. At times he needs assistance in getting out of the bath.

151 The plaintiff sits on the edge of the bath to shave. Mrs Hare said that he tries to do this himself but most often his current girl friend, Gail, shaves him.

152 Mrs Hare stated that she did not believe that the plaintiff would be able to care for himself if she or Gail were not available.

153 Both Dr Coffey and Dr Langeluddecke were of the opinion that the plaintiff would require supervision. Dr Coffey also reported that it was unlikely that the plaintiff could live independently.

154 Ms Prue Sandford and Ms Anna Castle-Burton, occupational therapists, were asked to consider the plaintiff’s needs for ongoing care and support. They agreed on the impairments, both physical and cognitive, from which the plaintiff continues to suffer some eight years after his injury. They agreed that further provision was required for physiotherapy, including a gymnasium program, and occupational therapy. They disagreed on the needs that those impairments generated for care, special equipment and house modifications.

155 The major difference between them was the level of the plaintiff’s dependence on others in activities of daily living such as personal hygiene, shopping, food preparation, cooking, washing and transport.

156 I have reviewed the reports of both occupational therapists carefully. It appeared that Ms Sandford had paid greater attention to the way in which the plaintiff actually functioned within his current household and that she reported in much greater detail on his difficulties and impediments.

157 Amongst the matters that she addressed that were not referred to or considered necessary by Ms Castle-Burton were:

(1) house modifications and items of equipment directed at increasing the plaintiff’s independence in personal hygiene, relieving his back pain when sitting and avoiding the need to bend and reach in the course of undertaking household tasks;
(2) the requirement for a wheelchair, manual or powered;

(3) the requirement for assistance with child care in due course.

Other matters addressed by Ms Sandford included a wheelchair accessible motor vehicle and computer hardware, software and training. The plaintiff did not press for an allowance for these items.

Findings

158 Whilst I accept that the plaintiff can prepare light meals, wash clothes and place them in a clothes dryer and, if required, undertake other household chores of a lighter nature, I find that he remains heavily reliant on Mrs Hare and Gail for assistance with many day to day activities, including those affecting his personal care.

159 I find that his impaired gait, capacity for balance, fine motor skills, and use of his dominant right arm, render it necessary to provide something more than a few hours per week for heavy housework. I find that his impaired intellectual capacity renders it necessary to provide for a level of supervision on a daily basis.

160 Concerns expressed by a number of experts at the plaintiff’s increasing social isolation, lead me to find that his carer will need time to attend to his social needs.

161 The evidence of the plaintiff’s driving record since the accident was also of concern and I find that there is a real probability that his licence will be permanently cancelled, resulting in the need for assistance with transport.

162 There was no evidence to explain the cause of the recently developed pain in the plaintiff’s left leg or to connect it with injuries suffered in the accident. Further, there was no evidence to indicate that this condition generated the need for a wheelchair. I accept, however, that the plaintiff is likely to require a wheelchair in due course. I am not prepared to allow two wheelchairs. I have made provision for a powered wheelchair, deferred for 20 years.

163 Applying these findings my assessment of the plaintiff’s future needs under this head of damage is:

(1) Personal and domestic care:

(a) Past : the amount of $193,034.89 is allowed as claimed.
(b) Future : Mrs Hare’s estimate of one half hour to two hours per day has been averaged to allow nine hours per week for personal care. Seven hours per week has been allowed for shopping, cooking, cleaning, supervision and social activities. Four hours per week has been allowed for transport, case management, garden and handyman needs and child care assistance.

Future care requirements are assessed in the sum of $600,000.

(2) Equipment

(a) The allowance for grooming needs is assessed in the amount claimed of $4,739.05.
(b) The allowance for seating is assessed in the amount of $4,229.
This assessment provides for an ergonomic armchair, a transportable backrest, which can be used in the dining room or car, and a raised toilet seat.
(c) I have disallowed a number of the items claimed for manual handling on the basis that provision is already made for the services to which they relate under the heading of domestic care. Those items are: the combined washing machine and dryer, dishwasher, refrigerator/freezer, steam mop and shopping trolley.
The allowance for manual handling is assessed in the sum of $8,367.53.
(d) The allowance for personal safety is assessed in the sum claimed of $9,799.78.
(e) It will be necessary to provide for some house modifications. Taking into account the allowance already made for cupboards and a bidet, the allowance for house modifications is assessed in the sum of $17,000.
(f) The allowance for a powered wheelchair, deferred for 20 years, is assessed in sum the sum of $38,015.

(3) Out of Pocket Expenses

(a) Past out of pocket expenses are assessed in the agreed sum of $11,264.95.
(b) Future out of pocket expenses are assessed in the agreed sum of $14,870.39.

ORDERS

1. Verdict for the defendant.

2. The plaintiff is to pay the defendant’s costs of the proceedings. This order is suspended until 4pm on 2 April 2008 to allow either party to list the matter for further argument.

3. Exhibits will be retained for 28 days.

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