HILTON-COOK v GRICE - [2004] WADC 77

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HILTON-COOK -v- GRICE [2004] WADC 77

CORAM: MULLER DCJ

HEARD: 5-8 APRIL 2004

DELIVERED : 4 MAY 2004

FILE NO/S: CIV 245 of 2002

BETWEEN: TRACEY LEE HILTON-COOK
Plaintiff
AND
BENJAMIN ALLAN GRICE
Defendant

Catchwords:

Liability for motor vehicle accident at T-junction - Plaintiff stationary at intersection - Failure to observe oncoming car driven by defendant - Whether defendant's vehicle had lights on - Severe hip injury sustained by plaintiff - Assessment of damages

Legislation:

Motor Vehicle Third Party Insurance Act, s3

Result:

Plaintiff's claim allowed

Representation:

Counsel:

Plaintiff: Mr B G Bayly
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Bradley & Bayly
Defendant: Talbot & Olivier

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

MULLER DCJ: The plaintiff, who was born on 28 May 1972 and is now aged 32, was injured when the motor vehicle she was driving was involved in a collision with a panel van driven by the defendant at the intersection of Hennessy Way and Seabrooke Avenue in Rockingham. As a consequence of the accident the plaintiff suffered various injuries including a serious injury to her right hip. The plaintiff claimed damages for her injuries which she alleged were caused by the negligence of the defendant. The defendant has denied liability.

Circumstances of accident

On the afternoon of Saturday 6 October 2001 the plaintiff had helped a friend working in a video shop for two to three hours. She later had dinner at her Rockingham home and waited for friends to arrive. At about 9.00 pm she drove her then husband and friends to the Waikiki Hotel where they remained until closing time at midnight. When they left the hotel the plaintiff, who had not been drinking, drove the vehicle to a house in Hennessy Way in Rockingham where they remained for about half an hour. After leaving this house the plaintiff again drove the vehicle in an easterly direction in Hennessy Way towards the intersection with Seabrooke Avenue. Her husband was in the front passenger seat next to her and there were three passengers in the rear seat.
Hennessy Way terminates at its junction with Seabrooke Avenue. There are no traffic signs or signals at the T‑junction. Seabrooke Avenue runs north to south and is a continuing road. On reaching the intersection the plaintiff said she stopped her vehicle and remained stationary for approximately four seconds while she looked to her right and to her left twice and then back to her right again. As she was unable to see the lights of any oncoming cars in Seabrooke Avenue she moved off slowly into the intersection and began turning right to travel south in Seabrooke Avenue. She said she could recall straightening her vehicle after making a right hand turn but had no recollection of what happened immediately after that. Her next recollection was putting the gear shift of her vehicle into the park position and turning the vehicle's lights and ignition off. She must have realised she had been hurt because she asked her husband, who was sitting next to her in the front passenger seat, to telephone for an ambulance. She said she was able to recall someone yelling but she was in pain and unable to sit up. Her seat belt was still on. The police and ambulance came to the scene and she was taken to Rockingham Hospital.
Some weeks later after her discharge from hospital the plaintiff was interviewed by police officers at her parents' home and made a written statement relating to the circumstances of the accident. In cross‑examination she agreed that in her statement to the police she said she had stopped at the intersection and looked both ways to check whether there was any oncoming traffic. She agreed that she did not mention looking to her right and left on two occasions before looking to her right again. She also agreed she told the police that she could recall entering the intersection and beginning her turn but never told them she recalled straightening her vehicle after completing that turn. Finally, she agreed that she did not tell the police that she had put the gear shift into park or turned off the ignition after the collision.
I do not believe these inconsistencies are of any material significance. The plaintiff explained she was on medication at the time and regarded the police officer who interviewed her as unsympathetic and hostile. While I accept there were these discrepancies between her evidence and her written statement they do not, in my view, reflect adversely on her credibility. The critical issue is whether she checked for oncoming traffic and, if she did so, whether she did so adequately. The discrepancies referred to do not really relate to this issue at all.
Two police officers arrived at the scene of the accident just after 1.00 am on 7 October 2001. They assisted the plaintiff and prepared a sketch plan showing the position of the two vehicles. The damage to the plaintiff's car revealed that the front of the defendant's van had struck the driver's side door of the plaintiff's vehicle. The damage to the right side of the plaintiff's car was extensive. As the police were unable to find the driver of the panel van they went to a house in Keppell Mews, a very short distance from the intersection. A party was in progress at this house and the defendant was at or near that address. He was identified as the driver of the pan van. He was taken to the Rockingham Police Station where he underwent a breathalyser test at 2.03 am. This test disclosed a blood alcohol level of 0.149 per cent calculated back to the time of the accident.
Several other witnesses who had been at the scene of the accident either immediately before or after it happened were called by the plaintiff to give evidence. The first of these witnesses was Graeme Mackie, a resident of 6 Hennessy Way. He described how at about midnight on 6 October 2001 he had been disturbed by a group of youths making a noise outside and had gone out to confront them. Following this confrontation he returned home and telephoned the police. After making this telephone call he again left his house and walked to the house at 1 Hennessy Way at the junction of Hennessy Way and Seabrooke Avenue. He noticed that the youths were no longer in Hennessy Way and that the park on the eastern side of Seabrooke Avenue was empty. As he was about to cross Hennessy Way and walk back to his house on the northern side of the road he saw a vehicle with its headlights on travelling east in Hennessy Way towards the junction of Hennessy Way and Seabrooke Avenue. This must have been the plaintiff's vehicle. He allowed the vehicle to pass and then crossed the road from the southern to the northern verge where his driveway was. As he was crossing the verge onto his property he heard the sound of a vehicle which he described as being "under power" and "revving loudly". He said the sound only continued for a very short period of time and was over in a matter of seconds. Following this he heard the sound of the impact. He said he remained about 30‑40 metres from the scene of the accident and observed what happened. He said the sedan he had seen earlier was facing south in the intersection and the other vehicle involved in the collision, a panel van, was facing north. He described the position of the sedan as being on the kerb on the eastern side of Seabrooke Avenue and he believed the panel van was on the incorrect side of Seabrooke Avenue for vehicles travelling north. He disagreed with the positions of the vehicle as shown on the police sketch (exhibit 8).
Two significant factors emerge from Mackie's evidence. The first is his assertion that when he went to 1 Hennessy Way immediately before the accident there were no persons at or near the wooden railing between the verge and the park on the eastern side of Seabrooke Avenue. This evidence, if accepted, contradicts the evidence of the defendant's witnesses who claim to have been in that position before the accident and having seen the approaching headlights of the defendant's car. The second, but perhaps less significant, factor in Mackie's evidence was his description of the engine noise of the oncoming car and the duration of that noise. His evidence on this point may lead to an inference that the sound must have come from the defendant's car and that it was consistent with a vehicle accelerating heavily over a short distance prior to impact. This interpretation would be consistent with the vehicle having accelerated from a stationary position at the house in Keppell Mews where a party was in progress. I will return to both these issues at a later stage.
The other two witnesses who were at the scene and whom the plaintiff called were Sharon Baird and Andrew Church. Both lived at 1 Hennessy Way which is located at the south western corner of the intersection of Hennessy Way and Seabrooke Avenue. Sharon Baird described how she had been disturbed by her dog barking approximately 5‑10 minutes before the accident happened. She said she looked out towards the park on the eastern side of Seabrooke Avenue but was unable to see anyone. Shortly afterwards she heard the sound of a collision and went outside to see what had happened. She noticed two vehicles had collided in the intersection and she went to the panel van which, on the evidence, had been driven by the defendant. She said she saw two males in the front seat of the panel van. She then went to find her husband and when she looked back at the panel van she noticed that both front doors were open. She saw the driver kicking the panel van and swearing. Her evidence was significant in two respects: first it tended to confirm Mackie's evidence that there was no‑one in the park before the accident, and second, it suggested that the defendant was not alone but had a passenger in the front seat of the car at the time of the collision.
The evidence of Andrew Church added little to that of Sharon Baird. After the accident he went to help the plaintiff and noticed that at least 10‑12 people at gathered around the vehicles very quickly. He went to the plaintiff's vehicle and noticed she was the only person in the car. He looked at the van and noticed that both the front driver's door and passenger door were open. He saw the driver walking around in what he described as a daze.
Only one of the passengers in the plaintiff's car was called to give evidence. This passenger, Adam Smith, was seated in the rear seat behind the plaintiff at the time of impact. He said he recollected the vehicle in which he was a passenger approaching the intersection of Hennessy Way and Seabrooke Avenue. He said the plaintiff stopped the car and then moved out into the intersection. He heard someone shout "Look out" or words to that effect and looked to his right. As he did so he saw what he described as a white vehicle which he realised was going to collide with the vehicle he was in. At the moment of impact he said he believed the car in which he was a passenger had moved well into the intersection and was probably facing the park on the eastern side of the road or completing its turn when the impact occurred. He agreed with the accuracy of the police diagram showing the positions of the vehicles after the impact although he thought the car in which he was a passenger was probably at more of an angle with the rear of the vehicle facing Hennessy Avenue.

Plaintiff's vision of approaching traffic

Photographs tendered as exhibits at the trial show there is a street light on the north eastern side of the junction of Hennessy Way and Seabrooke Avenue. The plaintiff, travelling east in Hennessy Way, would have stopped her vehicle diagonally opposite the street light. Looking south down Seabrooke Avenue from the junction at Hennessy Way the next street light is on the north eastern side of the junction of Seabrooke Avenue and Keppell Mews. The approximate distance from the centre of the junction between Hennessy Way and Seabrooke Avenue and this street light at the corner of Keppell Mews is about 55 metres. Both street lights were working at the time of the accident. Graeme Mackie, a resident of Hennessy Way, said the intersection is well illuminated and that, from a position at the T‑junction, it is possible to see the next street light at the corner of Keppell Mews. What emerges from this evidence is that a motorist who is stationary at the junction of Hennessy Way and Seabrooke Avenue would have an unrestricted view to the south down Seabrooke Avenue for some distance and that the section of Seabrooke Avenue between Keppell Mews and Hennessy Way, a distance of approximately 55 metres, would seem to have been reasonably well illuminated by the two lights I have already referred to.

Expert evidence relating to illumination and movement of vehicles

The plaintiff called evidence from an expert, Dr Stephen Chew, as to the visibility at night at the intersection and the probable movements of the vehicles involved in the collision. Dr Chew carried out a detailed examination of the intersection and its immediate surrounds and produced a report incorporating photographs of the intersection and the street lights located in the immediate vicinity. What emerged from his evidence is that Hennessy Way and Seabrooke Avenue formed a T‑junction and that there was a right hand bend in the southern approach of Seabrooke Avenue to Hennessy Way. There were four street lights along Seabrooke Avenue on the east verge. The first was diagonally opposite the intersection and the second on the north eastern corner of Keppell Mews. The first of these street lights was approximately 13.5 metres from the centre of the junction and the second 46.7 metres from the same spot. The third and fourth street lights were located 114.2 and 158.8 metres south of the intersection. Using specialised instrumentation Dr Chew measured the degree of illumination these street lights gave in Seabrooke Avenue south of Hennessy Way. What emerges from his report is that the degree of illumination was poor. Using an international standard providing a guide to the illumination of external working areas that fixes a standard of "20 lux" for normal motor traffic at speeds below 40 kilometres per hour Dr Chew said his experiments revealed that the readings in Seabrooke Avenue ranged from a minimum of 0.0 lux 10 metres from Hennessy Way to a maximum of 2.5 lux 50 metres from the same point. These figures, of course are dramatically below the international standard of 20 lux. Given these findings Dr Chew expressed the opinion that there was a high probability a person in a motor vehicle at the junction of Hennessy Way and Seabrooke Avenue would not see another vehicle driving north at night without head lights along Seabrooke Avenue approaching Hennessy Way until that vehicle had reached a point where it was within the range of the headlights of the stationary vehicle.
Apart from his observations on the degree of illumination at the scene Dr Chew also gave evidence of the times and distances relevant to the movements of the vehicles involved in the collision. Having conducted tests using a VS Holden Commodore Station Wagon – which he described as a vehicle fairly similar to that of the Ford Falcon driven by the plaintiff – Dr Chew described that a vehicle moving from a stationary position in Hennessy Way and turning right or south into Seabrooke Avenue would take approximately 4.3 seconds to complete that manoeuvre. He also expressed the view that a driver of average skill unaffected by alcohol would normally react to an emergency within 1‑1.5 seconds. On the assumption that a vehicle such as a Holden Commodore Falcon Sedan was travelling at 60 kilometres per hour on an ordinary bitumen surface Dr Chew said the vehicle could expect to be brought to a standstill within a distance of 14.5‑15 metres. This distance did not take into account the reaction time of 1‑1.5 seconds.
What emerges from Dr Chew's evidence is that with the illumination provided by the moon on the night of the accident – which the evidence established as being 84 per cent – and the position of and light from the street lights on the eastern side of Seabrooke Avenue a motorist stationary in Hennessy Way at its junction with Seabrooke Avenue would normally be able to see a distance of approximately 148 metres to the fourth light pole at the southern end of Seabrooke Avenue. If, however, an oncoming vehicle did not have its headlights on, and the driver of the stationary vehicle at the junction of Hennessy Way and Seabrooke Avenue did not see the oncoming car at an earlier stage, the stationary motorist would, in Dr Chew's opinion, only have one third of a second to see that car as it passed under the street light at the junction of Keppell Mews and Seabrooke Way approximately 46.7 metres from the point of impact. From the defendant's point of view a motorist travelling north in Seabrooke Avenue would take 31.3‑42.2 metres to stop if a vehicle came out of Hennessy Way and entered the intersection in front of him.

Evidence of the defendant

The defendant, who was born on 17 September 1983 and was aged 18 at the time of the accident, had held a probationary licence since December 2000. At 8.30 pm on 6 October 2001 he went to a party in Rockingham where he remained for approximately 2‑3 hours and shared a bottle of bourbon with a friend. He was uncertain as to what time he left the party but claimed he was driven by a person named Denise Lebkuecher to another party at the Carmichael's house in Keppell Mews. He said he remained at the party for no more than half an hour before Denise Lebkuecher drove him to his home at 8 Parkland Way in Rockingham.
The defendant said he did not stay at home that night. He claimed he telephoned his girlfriend and arranged to go and see her. He said she lived in Arkwell Street which is located north of the intersection of Hennessy Way and Seabrooke Avenue.
Realising he had too much to drink the defendant said he decided to take a longer route to his girlfriend's house and avoid the most direct route via Read Street because he thought he might be stopped by the police on the more busy thoroughfare. He described the route he took which involved him entering Seabrooke Avenue and travelling north towards its junction with Hennessy Way. He said he recalled going around a slight bend approaching the junction of Seabrooke Avenue and Hennessy Way. As he did so he said he saw a car stationary in Hennessy Way at the junction with Seabrooke Avenue. He said he believed that the driver of the car was waiting for him to go past. He said as he approached the junction the other motorist pulled out in front of him. He said he was travelling at a speed of between 55‑50 kilometres per hour at the time with his headlights on. He said he was unable to stop his vehicle and the collision occurred. He said he had no time to take evasive action but believed his vehicle was on the correct side of the road and the other vehicle was in the centre of the intersection at the time of impact.
The defendant seemed considerably less certain of what had happened under cross‑examination. He said he could not recall sounding the horn of his vehicle but did not think he had done so. He could not remember if he had braked. He also conceded he had not seen the other car begin to move into the intersection. His evidence on these points contradicted what he had said in a statement to the police on 7 October 2001. In that statement he told the police he had sounded his vehicle's horn and applied the brakes. He also claimed to have seen a white Falcon move into the intersection. He was unable to explain these discrepancies between his evidence and what he had said to the police. He was adamant there were no passengers in his car but agreed that after the accident he became upset and began kicking his own vehicle and swearing. He claimed a passenger in the other vehicle spoke to him and told him that the driver was a female and that she had been hurt. He said he then decided to leave the accident scene and walk back to the Carmichael's house in Keppell Mews with Jason Carmichael and Brodie Eaton who were friends of his and who had arrived at the scene of the accident.

While he was at the Carmichael's house he described how the police came and he identified himself and underwent a breath test. He denied suggestions put to him in cross‑examination that he had been at the party in Keppell Mews immediately before the accident and that he had been driving his car from that address when the accident happened. He also denied that he had one or more passengers in his car when the accident happened.
Any suggestion that the defendant had been driving his car from the party at Keppell Mews towards the junction of Hennessy Way and Seabrooke Way when the accident happened is, in my view, contradicted by the direct evidence of the witnesses Gregory Dennison and Denise Lebkuecher. Dennison had gone out with the defendant earlier that night to a party at a house in McNicholl Street in Rockingham where the two had shared a bottle of Bourbon before being collected by Denise Lebkuecher between 11‑11.45 pm. After being collected she took them in her car to the party at the Carmichael's house in Keppell Mews. Both Dennison and Lebkuecher said they only remained at the house in Keppell Mews for 30‑60 minutes before leaving with the defendant and taking him to his house in Parkland Drive. Denise Lebkuecher, who had not been drinking that night, confirmed that the defendant had telephoned her at 11 and asked her to collect him from the party in McNicholl Street. She said she had taken him to the house in Keppell Mews for 30‑60 minutes before driving him home to Parkland Street. She then drove home herself with Dennison still in the car.
I am satisfied on the evidence that the defendant was taken home that night and that later he drove his own vehicle from 8 Parkland Drive to the place where the accident occurred. Whether he took the route he claimed he did is a matter I shall address later. The critical question is whether his vehicle's headlights were on as he approached the intersection of Seabrooke Avenue and Hennessy Way.

Particulars of negligence

The particulars of negligence relied upon by the plaintiff include driving at a speed that was unreasonable, failing to keep a proper lookout, failing to brake or otherwise avoid the collision, driving a motor vehicle in a condition of drunkenness and allowing the motor vehicle to drift onto the incorrect side of the road. The way the case was presented, however, really left only one crucial particular to be proved, that is, the alleged negligence of the defendant in driving his motor vehicle without headlights. While the case was fought on this issue, and there is really no need for me to make any findings in relation to the other alleged particulars of negligence, I might say that on the evidence available I would not have been able to find against the defendant on any of the other particulars of negligence set out in the plaintiff's statement of claim.

Findings on issue whether defendant had headlights on

I have already outlined the evidence of both the plaintiff and the defendant as to how the collision occurred. Given the conflict between them I must decide which evidence I prefer. The plaintiff certainly made a favourable impression on me. I found her to be open and frank in her evidence and quite prepared to make concessions against her own interests. She was non‑argumentative and gave her evidence in a measured and balanced way. I have no criticism of her demeanour at all. I also take into consideration that she had not had anything to drink that night and had an unblemished driving record. I unhesitatingly accept her evidence that she stopped at the intersection of Hennessy Way and Seabrooke Avenue for about four seconds and looked both left and right the number of times she said she did before entering the intersection. I must take into account, however, that even if she were as careful as I have found her to have been there is still the possibility that she simply did not see the headlights of an oncoming car. According to the evidence of Professor Ross, whose testimony was accepted without question by plaintiff's counsel, it is possible for a motorist who looks for oncoming traffic to fail altogether to register the approach of an oncoming car. As the expert witness explained the rapid eye movement involving a change in the point of gaze can lead to what is termed saccadic suppression resulting in a momentary loss of vision. This loss of visual sensitivity is apparently most severe in the case of moving objects and, in this case, counsel for the defendant argued that the plaintiff, even if she had looked for an approaching vehicle, must have failed to see it because her visual sensitivity was quite possibly reduced as a consequence of the movement of her eyes. As against this, however, Professor Ross conceded that the likelihood of such a phenomenon occurring is reduced if a motorist takes the care of looking left to right several times in order to check for moving objects.
What the evidence discloses is that the plaintiff, having looked several times to her left and right in the manner I have found, failed to see an approaching car which was approximately 80‑100 metres away from her. I am prepared to accept that, if the vehicle did not have its headlights on, the plaintiff in all probability would not have been able to see it. While I have mentioned the position of the various street lights in the vicinity I am prepared to accept the evidence of Dr Stephen Chew, which was not seriously challenged in cross‑examination, that, given the state of the street lighting, there was a high probability a motorist in a stationary car at the junction of Hennessy Way and Seabrooke Avenue would not see another vehicle driving north at night without headlights approaching the intersection until that vehicle had reached a point where it was within the range of the headlights of the stationary vehicle.
The defendant said he had his headlights on. Given my finding that he travelled six kilometres over a period of approximately 10 minutes from his home to the point of the accident it seems highly improbable that his vehicle's lights could have been off. A video taped simulation of the drive undertaken by the defendant that night certainly suggests that such a feat would have been near impossible. The video tape introduced into evidence shows there were street lights on all the roads the defendant travelled on and, while the lighting in Rae Road was very good, the street lighting in other roads, including Safety Bay Road, June Road and Seabrooke Avenue, was perhaps only barely adequate. I agree with the observation of counsel for the defendant that a motorist could not possibly have travelled this distance at night with his headlights off. Quite apart from the possibility of being involved in a much earlier accident I very much doubt whether the motorist would have been able to see the markings on the road including the broken white line in the centre of the carriageways, stop signs, give way signs and other such features. The critical question, however, is whether the defendant is to be believed when he said he travelled this way.
This brings me to the evidence of the defendant. I have already outlined his account of the journey and the accident. I was not impressed by the defendant as a witness. I believe the evidence he gave was materially inconsistent with some of the statements he made to the police. Those inconsistencies, which I have already referred to, were material. I do not believe it is any answer to say that his memory at the time he made the statement is better than it is now. Allowing for his youth, and the fact that he was obviously under the influence of alcohol at the time this happened, I believe his evidence must be treated with the utmost caution. Given a choice between the evidence of the plaintiff and that of the defendant I would unhesitatingly accept that of the former. But the evidence of the defendant does not stand alone. It is supported by the evidence of the three youths who claimed to have been at the intersection when the accident happened.
The three witnesses, all of whom were young men who had been to school together, knew each other well and had been at the party at 12 Keppell Mews, said that they had seen the defendant's panel van approaching the intersection from the bend at the southern end of Seabrooke Avenue. Because the evidence of these three witnesses is critical I propose to discuss the testimony of each in turn.
The first of the three witnesses to be called was Jason Carmichael. He lived at 12 Keppell Mews and was celebrating his birthday on the night of 6 October 1985. The two other witnesses, Brodie Eaton and Daniel Niven, were guests at his party and were to spend the night there. Carmichael said about 10‑15 people were at the party initially including Denise Lebkeucher. He said he saw Denise come back to 12 Keppell Mews in her car at between 11.30‑12.00 midnight. He said the defendant and Gregory Dennison were in the car but did not come inside the house. After staying for approximately 10 minutes they left with Denise Lebkeucher.
Later that night he, Brodie Eaton and Daniel Niven decided to walk to the local BP service station to buy some food. They left the Keppell Mews house and walked north in Seabrooke Avenue to the intersection of Hennessy Way where they sat down on the wooden railing in front of the park. Jason Carmichael said he left the others there and returned home to collect his jumper and wallet. On his way back he recalled walking on the verge under the street light at the junction of Keppell Mews and Seabrooke Avenue when he saw a vehicle coming around the corner from the southern end of Seabrooke Avenue. He said he was pretty sure it had its headlights on and that it was approximately 30 metres away when he first saw it. He described how the car passed him and continued on towards the intersection of Seabrooke Avenue and Hennessy Way. He said that as the vehicle approached the junction of Seabrooke Avenue and Hennessy Way the car that had been stationary at the intersection pulled out in front of it. He was unable to estimate how far the car travelling in Seabrooke Avenue had been from the intersection when the other car pulled out from Hennessy Way. While he was uncertain about that distance he said he was pretty sure he heard the defendant sound his horn. After the accident he recognised the defendant in the driver's seat and described how the defendant got out of his car and began swearing and kicking the vehicle. Because the defendant was angry, and fearing a disturbance might occur, he said he and the others took the defendant back to his house where they waited until the police came looking for the driver of the other vehicle.
Carmichael's claim that he had seen the vehicle's headlights on was challenged in cross‑examination. When asked what he meant by his expression that he was "pretty sure" the car had had its lights on he said he was 70 per cent certain. He went on to say that after the collision he noticed that one headlight on the Ford panel van was on and the other was smashed in. He was also certain that he had not heard the Ford panel van's engine roaring or revving at a high rate as it approached the junction. In re‑examination, when asked to what degree of certainty he could say that the lights of the vehicle were on, he replied that he knew the lights were on.
Brodie Eaton, the second of the three witnesses who claimed to have seen the lights of the defendant's vehicle on as it approached the junction, had been at the party with the others and was sitting with Daniel Niven on the wooden railing at the eastern side of the junction between Hennessy Way and Seabrooke Avenue, when he claimed to have seen the panel van approaching from the south in Seabrooke Avenue. He also said he was "pretty sure" the vehicle had its lights on and explained that was the very reason why he noticed it. He had also noticed another vehicle in Hennessy Way stationary at the junction. He went on to say that just as the approaching Ford panel van was about to pass the point where he was seated the other car in Hennessy Way pulled out into the intersection and a collision occurred. In cross‑examination he said he would not have noticed the oncoming car if its lights had not been on and repeated his assertion that he was pretty sure it had its lights on as it approached the intersection.
The third and final witness who claimed to have seen the defendant's car approaching the intersection with its lights on was Daniel Niven. He had been seated with Brodie Eaton on the wooden railings opposite the junction of Hennessy Way and Seabrooke Avenue when he saw a car stationary in Hennessy Way at the intersection. He said this car had been there between 20‑30 seconds when he saw another vehicle approaching around the corner to the south in Seabrooke Avenue. He said the lights of this vehicle were on. He went on to describe how this other car reached a point approximately 10 metres from the junction when the stationary vehicle in Hennessy Way entered the intersection. He said there was insufficient distance for the vehicle travelling north in Seabrooke Way to brake before a collision occurred. In cross‑examination he agreed he had not been aware of the lights of the stationary car in Hennessy Way being on. He said he really paid no attention to whether that vehicle had its lights on. What he did observe was that it was stationary at the intersection for what seemed an unnecessarily lengthy period of between 20‑30 seconds and this led him to make a comment to his friend Brodie Eaton. He was certain the other vehicle coming from the south in Seabrooke Avenue had its lights on as it came around the corner.
The three witnesses knew each other well and had been at school together. At least one of them worked with the defendant. All three certainly knew the defendant. All three either recognised the defendant's vehicle immediately before or after the collision. All three had been drinking and had come from the same party in Keppell Mews. Another factor that cannot be overlooked is that Jason Carmichael and Brodie Eaton led the defendant away from the scene of the accident to the house in Keppell Mews. Their reason for this seems to have been a desire to keep the defendant out of further trouble. Whatever their motive may have been what they did was clearly inappropriate and they must have known it. It would also have given them the opportunity of discussing what had happened with the defendant and reaching some sort of collusive agreement as to what they should tell the police.
It is against this background that I propose to examine their evidence. Starting with Jason Carmichael I found him to be vacillating and uncertain on the critical issue of whether the vehicle driven by the defendant had its headlights on. He constantly used expressions such as "pretty sure" in describing his degree of certainty as to whether the headlights were on. While this might to a certain extent have been a figure of speech which he is in the habit of using I was still left in some doubt as to whether he actually saw what he claimed to have seen. When asked what he meant by the expression "pretty sure" he said he was 70 per cent positive. To my mind this in itself was a manifestation of his uncertainty. But it did not end there. When asked whether the defendant had sounded his vehicle's horn he again repeated that he was "pretty sure" he had. Once again he explained this expression by saying he was 70 per cent positive. In cross‑examination he was questioned extensively about his evidence on this point and the overall impression I gained is that he was uncertain as to whether the defendant's car did have its lights on. One surprising assertion he made in cross‑examination was that he saw one off the vehicle's lights on after the collision. He was the only witness to give this evidence. The other headlight, according to him, was smashed. I gained the distinct impression that he relied on this alleged observation after the accident to justify his assertion that the vehicle's lights must have been on prior to impact.
Brodie Eaton, the second of the three witnesses called by the defendant on this point, was even less impressive. I found him to be hesitant and uncertain in much of his testimony. He also said he was "pretty sure" the defendant's car had its lights on as it approached the junction. Even allowing for the fact that this was probably only a figure of speech which he normally used I found his evidence even less convincing than that of Jason Carmichael. I would not have accepted Eaton's evidence on this point if it stood on its own.
The third and final witness on this critical issue was Daniel Niven. Again I was not favourably impressed by him as a witness. I gained the distinct impression that he was more intent on impressing his friends in the gallery of the Court than in telling what he had seen in an honest and balanced way. One surprising feature of his evidence was his admission that he did not notice whether the stationary vehicle in Hennessy Way had its headlights. Given that he was allegedly seated on the wooden railing almost directly opposite the stationary vehicle it seems astonishing that he could not remember something as obvious as that. He obviously focused on the stationary vehicle because he said he noticed it remained stationary for what might be said to have been an unreasonably long period of time. He even said he made a comment on this to his friend who was allegedly next to him. But he was unable to remember whether the vehicle had its lights on. If, after focusing on this vehicle as he said he did, he was unable to say whether it had its lights on, I find it absolutely surprising that he was able to assert, as positively as he purported to do, that the oncoming vehicle driven by the defendant definitely had its headlights on.
Each of the three witnesses had been drinking. Each had been in the company of the others for the entire night. Being close friends, and knowing the defendant as well as they did, the three witnesses certainly had a motive to tailor their evidence to support the defendant. They also had the opportunity after the collision to speak to the defendant and discuss what they would say. I believe their evidence must be viewed with extreme caution.
If the evidence consisted only of the testimony of the plaintiff and the witnesses called by the defendant I would have been left in substantial doubt as to what finding to make. Fortunately the evidence does not stop there. The turning point on this critical issue is, in my view, the evidence of Graeme Mackie. He had gone out to see what had happened to the troublesome youths. He was looking for them in the park on the eastern side of Seabrooke Avenue. He said the park was empty. He walked as far as the driveway of 1 Hennessy Way on the corner of the intersection. He looked up the street and found it to be empty. The park was also empty. He did not see two young men sitting on the wooden railings on the eastern side of the intersection. He did not see a third person under the street light at the junction of Keppell Mews and Seabrooke Avenue. The street and the park were deserted. The street lights were on and he was standing very close to the positions whether Carmichael, Eaton and Niven claimed to be. He did not see anyone.
I accept Mackie's evidence without reservation. He had no interest in the case and had gone outside for the specific purpose of finding out what had happened to the rowdy youths whom he had reported earlier to the police. I cannot believe he would not have seen the three defence witnesses if they had been where they said they were. The collision occurred within seconds of Mackie walking back across the width of Hennessy Way onto the verge of his own house. There was a street light at the north eastern corner of the T‑junction. The wooden railing where two of the witnesses claimed to have been seated was adjacent to this street light. If they had been there Mackie could not have failed to see them. But he did not. He also did not see the third witness who claimed to have been at the junction of Keppell Mews and Seabrooke Avenue. There was a street light on that corner as well. Again it is unlikely Mackie could have failed to see him if the witness had been where he said he was. I am satisfied he was not there. I unhesitatingly accept Mackie's evidence that there was no‑one in the immediate area of the T‑junction or the park immediately before the collision.

Sharon Baird also saw no‑one in the vicinity of the park when she looked out of the window five to ten minutes before the accident. But her evidence does not exclude the possibility of the three defence witnesses being in the positions they claim to have been at the time the collision occurred. I do not need to rely on her evidence at all. I accept the evidence of Mackie on this point and I need look no further.
I prefer to make no finding on whether the defendant had a passenger in his car. There is evidence which, if accepted, might lead to this inference being drawn. I do not believe it is necessary to draw it. Accepting, as I do, the evidence of the plaintiff and that of Graeme Mackie I must reject the evidence of the defendant and the three witnesses he called. I do not know what route the defendant travelled to the scene of the accident. I need not make a finding on that issue. I am unable to explain how he managed to reach the intersection without his vehicle lights being on. Again, I do not have to make a finding on that point except to consider it as one of the circumstances affecting the onus of proof which the plaintiff bears. Applying the appropriate standard of proof what I am certain of is that the defendant's witnesses were not where they claimed to have been. They did not see the defendant's car approaching the intersection with its headlights on. If they did not see what they claim to have seen they must have concocted their story
I find that the most probable explanation for the plaintiff's failure to see the defendant's vehicle was because the defendant did not have his panel van's lights on. I find that the defendant was negligent in driving without his lights on and that his negligence was the cause of the collision that occurred.

Contributory negligence

Although the issue of contributory negligence was raised on the pleadings there was no evidence that, even if the defendant did not have his vehicle's lights on, the plaintiff could still reasonably have taken steps to avoid a collision.

History of plaintiff's injuries

Following the accident the plaintiff was taken by ambulance to Rockingham Hospital where she remained for four hours before being transferred to Fremantle Hospital. She remained in intensive care for two to three days before being transferred to an orthopaedic ward for a similar period. She was then transferred to Royal Perth Hospital where she underwent surgery to her hip. She was discharged from hospital on 26 October 2001 and went to live with her parents. On her discharge she was in a wheelchair which she had to continue using until 28 December 2001. Her degree of disablement was such that for six weeks she was unable to shower herself and had to rely upon her mother to assist her. Her father, who had retired at the time, spent three months looking after her on a full‑time basis. During this time he made her meals, took her to medical appointments and took her outside the house. Because the plaintiff was not allowed to place any weight on her right leg she required constant care during this period. After she discarded the wheelchair she began using crutches. Between February and April 2002 she managed on one crutch. She estimated that during the period she was totally dependent on her parents they spent approximately 10 hours daily attending to her needs.
In February 2002 the plaintiff's condition had improved to the extent that she was able to spend the nights at her own home and the days at her parents' home. On 17 April 2002 she returned to her previous employment with Mid Chime Pty Ltd where she worked 2‑4 hours a week over a two day period. At this time she was still dependent on a single crutch and was only able to do typing work. When she was able to discard her crutch she increased her working hours but continued to be restricted to typing work. Whereas before her accident when she had worked for the same employer she had undertaken a number of physical tasks such as banking, stocking the fridges with alcohol and similar activities, she found she was no longer able to do that side of her work. As her condition improved she increased her working hours to between 14‑20 hours weekly depending upon the amount of typing available. She was also able to do some banking using a vehicle to travel to and from the bank.
In January 2004 the plaintiff underwent further surgery for the removal of screws in her damaged hip. She was in hospital for two days and after her discharge her recovery continued. Following the surgery she resumed her work with Mid Chime Pty Ltd doing the typing and other secretarial duties. She said in evidence she had reached the stage where she felt capable of working full‑time. Because she enjoyed her work with Mid Chime Pty Ltd, and felt a sense of loyalty towards her employer, she said she wanted to continue working part‑time in her present occupation but find other part‑time work elsewhere in order to increase her working hours. She agreed she was capable of taking up full‑time employment as a secretary/receptionist but that she had not looked for any full‑time positions.
At the time of trial the plaintiff agreed that her condition had improved to the extent that she was capable of full‑time employment as a secretary/receptionist but that she chose to continue working part‑time with Mid Chime Pty Ltd while looking elsewhere for additional part‑time work which, up to the date of trial, she had not managed to find. What she could no longer do was the stocking of fridges, the purchasing of food stuffs for the two night clubs owned by her employer, the carrying and lifting of stock and the other physical duties that had previously been part of her work position.

Loss of amenities

Prior to the accident the plaintiff had been married and her husband had worked outside Perth. He remained away from home for seven weeks and returned home for one week. During this time the plaintiff did all the housework and gardening except the mowing of the lawns. Following the accident her marriage broke up in acrimonious circumstances. She has since begun a relationship with another person with whom she lives in the Baldivis area. She is no longer able to do the gardening and her ability to do household chores is limited. She can still cook, make the beds and do the ironing but her partner has to help her mop the floors and vacuum because of the pain and discomfort she feels when doing these tasks. All the gardening is left to her partner who also helps her carry and hang out the washing.

Medical evidence

Following her transfer from Fremantle to Royal Perth Hospital the plaintiff was found to have sustained a comminuted fracture of the right acetabulum, a lung contusion, a punctured lung and cardiac contusion. After her transfer from Fremantle Hospital to Royal Perth Hospital she underwent surgery for the repair of the comminuted displaced fracture of her right acetabulum and pelvis. In a report dated 5 August 2002 Mr Dermot Colloby, the orthopaedic surgeon who performed the surgery, commented that the plaintiff made a relatively uneventful recovery from the operation although she did complain of considerable pain in the post‑operative period and had to rely on crutches for a considerable period. Given the extent of her injuries Mr Colloby was of the view that the plaintiff was completely incapacitated for work for a period of eight months from the date of the accident and then partially incapacitated for a further six months. He also foreshadowed the possible development of post‑traumatic arthritis as a consequence of the acetabular fracture.
This prognosis of future complications has proved correct. The plaintiff was reviewed by another orthopaedic surgeon, Mr Greg Finch, who prepared two reports dated 25 September 2003 and 24 February 2004. In his evidence given on commission de bene esse Mr Finch said that radiological findings of 26 February 2004 confirmed his view that the plaintiff would in the future need a total hip joint replacement. This procedure would not be a lasting one and, in his opinion, she would require multiple revisionary procedures as time progressed. He also expressed the opinion that she would have to undergo a hip replacement at any time between 5‑15 years.
Further confirmation of the plaintiff's need for a hip replacement in the future is to be found in the report of a third orthopaedic surgeon, Mr Desmond Williams, dated 10 March 2004. Mr Williams reviewed the plaintiff on 4 March 2004 and noticed that her current problems included stiffness in the right hip and ongoing right hip pain. He observed that she walked with a limp and that her ability to walk distances was limited. Internal screws had been removed from her pelvis during surgery performed at the Royal Perth Rehabilitation Hospital on 28 January 2004. Following this surgery her right hip was capable of being flexed to 90 degrees compared to 120 degrees in the left hip. External rotation of the right hip was reduced to half range and abduction was significantly reduced to 10 per cent compared to 30 per cent in the left hip. Significantly, Mr Williams confirmed the development of post‑traumatic osteoarthritis in the right hip and expressed the view that the plaintiff would need surgical intervention within a period of 10 years from the date of his report. He expressed the view that she would continue to need support with ongoing physical rehabilitation and access to exercise programmes. Given her physical limitations Mr Williams expressed the view that she would have difficulty with prolonged standing, awkward postures, negotiating stairs and ladders, lifting heavy objects and walking on irregular ground.
As a consequence of the surgical procedures she has undergone the plaintiff has an extensive area of scarring and irregularity over the left hip, spreading down across the left thigh, most of the way to the knee. In a report dated 5 September 2002 Dr Matthew Hanson, a plastic surgeon, describes a 22 centimetre long transfer scar just below the line of the iliac crest that joined a 30 centimetre scar spreading down the lateral area of the thigh towards the knee. He also noted that just above the transverse scar were several small lumps corresponding to underlying screws used to fix her pelvis. Just below the point where the two scars joined and anterior to it there was a fairly marked indented area due to loss of subcutaneous tissue and muscle. Further down the vertical scar there was another area of marked indentation and below that a localised soft tissue swelling measuring about 15 centimetres in diameter. This swelling, according to Mr Hanson, is a post‑traumatic pseudo lipoma caused by displacement of the fatty tissue following the trauma. In his report he also says that the areas of indentation are due to losses of underlying fatty tissue as a direct result of the trauma. In the earlier of his two reports he expressed the view that the plaintiff had sustained very extensive scarring and deformity of the right thigh and that the scars would remain in their current dimensions but would improve slightly in appearance as their colour faded. He also believed the contour irregularities due to the damaged fat of the subcutaneous tissues could well progress over time particularly if the plaintiff put on weight. If that happened the bulging areas would become even more prominent. In a later report dated 23 July 2003 Mr Hanson repeated an earlier opinion that scar revision would not be appropriate. Photographs of the plaintiff's scars were tendered at the trial and they show marked disfigurement, including swelling and bulging, in the areas referred to in Mr Hanson's reports.
A further complication arising from the plaintiff's injury is her capacity to give birth by normal vaginal delivery. In a report dated March 31 2004 Dr Leslie Gan expressed the view that vaginal delivery would be hampered because of the limited movement in the plaintiff's right hip and a probable narrowing of the right hemi‑pelvis. These factors would, in his opinion, prevent engagement of the head and rotation within the uterine cavity during delivery of the baby. He was of the view that a caesarean section would be the most appropriate form of delivery. Later in the same report Dr Gan discussed the presence of the screws in the plaintiff's right pelvis which he believed was another factor making a caesarean section more appropriate than normal delivery. He did emphasise, however, that there should be no significant long term consequences or complications of residual disability associated with the plaintiff having a caesarean section compared with a natural childbirth.
The defendant also adduced medical evidence of the plaintiff's injuries. Mr Peter Bath, an orthopaedic surgeon, saw the plaintiff on 27 August 2003 and prepared a report dated 11 September 2003 in which he confirmed that her right hip lacked 10 degrees of full flexion, 10 degrees of full abduction and a similar restriction of range of internal and external rotation in extension. All of these movements were, according to his observations, associated with some pain at the extremes of such movements. He also observed some wasting of the right quadriceps and the right buttock but expressed the view that all relevant muscles were still working. He believed the residual incapacity following these injuries included right hip function, superficial nerve involvement, the cosmetic aspect of the right thigh and the potential need for a caesarean section. Mr Bath also believed that the plaintiff will have a permanent degree of stiffness above the hip and will continue to have what he described as "catching symptoms" when actively flexing or lowering the hip. In his report he also referred to the possible severe complication of arthritis in the right hip but, given the x‑ray reports available to him, he was unable to find any evidence of such a development in the material before him. He has now had the opportunity of reviewing more recent material relating to the plaintiff's condition and has changed that view, believing that a hip replacement within the next 10‑15 years is a real possibility.

Psychological evidence

On 10 December 2001 the plaintiff saw a psychiatrist, Dr Dennis Tannenbaum, and complained of multiple symptoms of a severe major depression with associated symptoms of agitation, irritability and stress. In a report dated 19 December 2001 Dr Tannenbaum expressed the view that the plaintiff was struggling to adapt to her level of pain and with her future prospects. He believed at the time she was suffering from a severe major depression which required treatment. He saw the plaintiff again on 14 July 2003. On this occasion he noticed she no longer suffered from depression. He believed her earlier symptoms had gone into remission and he did not think there was any reason why she should not continue to improve. He did say, however, that a significant proportion of persons whose symptoms had gone into remission suffer a relapse within 15 years.
The plaintiff was also seen by a second psychiatrist, Dr Peter McCarthy, who was called as a witness by the defendant. In a report dated 13 November 2003 Dr McCarthy confirmed that she suffered from a major depressive disorder of moderate severity in the weeks following the accident. It is significant, however, that in his view the motor vehicle accident, while a significant contributing factor to her condition, was not the only cause of her depression. Another major contributing factor was the acrimony and stress of her marital break‑up in December 2002.

Plaintiff's work history

After leaving school at the age of 16 having completed year 11 the plaintiff worked in a variety of positions. She began work in an ice cream parlour and later moved to a large supermarket before taking on a position as a medical receptionist at Casuarina Prison. From that time on she focused on secretarial work although most of the positions she held also involved physical activities such as standing for lengthy periods and carrying and lifting stock. In June 2000 she began work as a receptionist with a company named Mid Chime Pty Ltd as a receptionist. Her employer operated two night clubs and she was responsible for the banking, filing, typing, and stocking the bars in both night clubs. She had to carry alcohol from the cool room to the two bars in the same building. She worked full‑time, 38 hours a week, until May 2001 when she stopped worked after a disagreement with one of her employers. It was during this period after she had left Mid Chime Pty Ltd and before she began working again that the accident occurred.
After the accident she resumed work with Mid Chime on 17 April 2002. Initially she worked two to four hours a week over a two day period. Later her hours increased to between 14‑20 hours weekly but she was restricted to typing and clerical activities and could no longer do the physical tasks she had done before her accident.

Past loss of earning capacity

On 7 October 2001 when the accident occurred the plaintiff was unemployed. She had left work on 1 May 2001 after a disagreement with one of her employers. She was still a valued employee and her job was left open for her to return to. She said she intended to take a break for six months before returning to work. Accepting her evidence on this point it follows that, but for her injuries, she would have returned to work on 1 November 2001.
Following the accident on 7 October 2001 the medical evidence establishes that the plaintiff was permanently incapacitated for a period of eight months from the date of the accident and then partially incapacitated for a further six months. Accepting this evidence the earliest date on which she could reasonably be expected to have returned to her former employment in a part‑time capacity would have been around May 2002. In fact the plaintiff returned to work on 17 April 2002 when she began working 2‑4 hours a week which she gradually increased to between 14‑20 hours as her condition improved.
In 2001 the plaintiff's earnings were $358 gross per week ($310 net per week). Her past losses were as follows:
1.Loss from 1 November 2001 (date on which the plaintiff expected to return to work) to 17 April 2002 (date on which plaintiff actually returned to work):
23 weeks x $350 net per week = $8,050.
2.Loss between 17 April 2002‑30 June 2002 when plaintiff working limited hours because of her physical restrictions:
10 weeks x 350 =   $ 3,500
Less actual earnings   $ 1,950
Total $ 1,550
3.Loss 1 July 2002‑30 June 2003:
52 weeks x $350 net per week =     $18,200
Less actual earnings  $ 6,541
Total$11,749
I believe the plaintiff is entitled to this component of the award because, while she had recovered from her depression as early as January 2003, she still had severe physical restrictions and discomfort flowing from her injuries and the treatment she had received. Some of the screws that were initially inserted in her hip were only removed in January 2004. Between 1 July 2002‑30 June 2003 she still had surgery pending and I believe it would be unreasonable to have expected her to find alternative full‑time employment before the end of June 2003.
After 30 June 2003 the evidence establishes that she certainly had the capacity to work full‑time as a receptionist or in some sedentary clerical position. However, she chose not to look for full‑time work. She remained working on a part‑time basis with her current employer and, as I said earlier, is now looking for another part–time position to increase her working hours. Counsel for the plaintiff invited me to make a global award for the plaintiff's loss of working capacity during the period 1 July 2003‑5 April 2004. Given my finding that she had regained her capacity to return to full‑time employment as a receptionist by 1 July 2003 I decline to make any award for such period.

I award the plaintiff $21,349 for her past loss of earning capacity.

Interest on past loss

3.5 years x 3% x $21,349 = $2,241.

Future loss of earning capacity

While the plaintiff has regained her capacity to work full‑time in a sedentary or semi‑sedentary occupation, or even do work of a light manual nature, she has permanently lost the capacity to do work requiring heavy manual handling or any sustained physical activity. While she is now capable of finding employment at the same or at an even higher rate of remuneration than she earned before the accident the substantial diminution in her capacity to do manual or physical work places her at risk of future unemployment or less remunerative employment. With her physical restrictions she will not be an attractive proposition to an employer who, like her current employer, wants an employee to combine secretarial work with a certain amount of manual labour. If, for example, the plaintiff is employed on short term contracts, and is required to change her employment from time to time, there is a real risk that, given her physical restrictions, prospective employers may be unwilling to engage her. This might well lead to substantial gaps in the continuity of her employment. Furthermore, she will require time off work for future hip surgery and this in itself may be another obstacle to her finding suitable and lasting employment. She must be compensated for the mere chance or risk of future unemployment or less remunerative employment. See Luntz Assessment of Damages for Personal Injury and Health, 4^th ed 5.3.7.
I would award the plaintiff $20,000 for future loss of earning capacity.

Future costs of hip replacements/revision

According to the report of the orthopaedic surgeon, Desmond Williams, the plaintiff will in all probability require an artificial hip replacement in 10 years time. Following that replacement a revision may be required every 10 to 15 years. The cost of this procedure was agreed upon by the parties at $27,500. In my view the plaintiff is entitled to compensation calculated as follows:
1.First hip replacement in 10 years time.
$27,500 x 0.558 =   $15,345
2.Revision in 22.5 years
$27,500 x 0.270 =   $ 7,425
3.Revision in 35 years.
$27,500 x 0.130 =   $ 3,575
Total $26,345

Future medical costs

According to the evidence the plaintiff is entitled to the following compensation:
Four general practitioner visits per annum ($35 per visit).
One orthopaedic review per annum ($60 per consultation).
X‑rays.
I do not believe any mathematical calculation is appropriate in assessing the plaintiff's medical costs and I would award her a lump sum of $4,000 to cover this head of damage.

Past voluntary services

The evidence discloses that the plaintiff certainly needed assistance for a period of about four months. During this time she was substantially incapacitated. She was in a wheelchair until 28 December 2001 and after that had to use crutches, gradually progressing from two crutches to a single crutch, until April 2002. When she first returned home after her discharge from hospital she required constant attention and assistance. Her mother had to shower her and for three months her father looked after her on what she describes as a full‑time basis. She lived with her parents and received constant care from them until February 2002 when she returned to her own home at night but continued to spend the day at her parents' home. Given the extent of the initial care she needed over the four months period when she was almost totally incapacitated I believe the award sought in the plaintiff's schedule of damages is a reasonable one. I would award the plaintiff $6,720 calculated as follows:
16 weeks x 28 hours per week x $15 = $6,720.

Future services

Counsel for the plaintiff submitted that an award for future services was appropriate. While the plaintiff's current partner helps her in the house and does all the gardening counsel submitted that the time may come when, because of her disability, she might have to rely upon paid help to perform the work and chores her current partner is now doing. I believe this contingency is too remote and I decline to make any award for future voluntary services.

Special damages

(As agreed) $7,154.

General damages

In assessing an appropriate award under this heading the first factor I must take into account is the extent of the injuries suffered by the plaintiff as a consequence of the accident. Whilst those injuries, apart from the plaintiff's right hip, were resolved after the accident, they were still very serious and were described by one of the medical specialists who attended to the plaintiff as life threatening. Following her surgery she underwent a considerable period of immobility, pain and discomfort. In January 2004 she had to undergo further surgery for the removal of screws that were causing her considerable discomfort.
The plaintiff's scarring is extensive. I have already discussed the report of the plastic surgeon and described that scarring in some detail. She has been left with a substantial degree of disfigurement including scarring and contour irregularities in her right thigh.
During her recuperation the plaintiff suffered from clinical depression and, according to one of the psychiatrists who examined her, the prospects of a recurrence of that condition are relatively high. She also has to contend with the knowledge that she will have to undergo a hip replacement within the next 10‑12 years and subsequent revisions of that procedure at regular intervals. Finally, while there is no evidence as to whether she intends having children, childbirth in her case will necessarily have to be by way of caesarean surgery.
I am satisfied the plaintiff's injury must have had an enormous impact on her life. She is still a young person and her sense of loss must be substantial. Quite apart from the factors I have already mentioned she has also lost the opportunity of working on a full‑time basis with an employer whom she obviously has a high regard for. She will no longer be able to enjoy leisure pursuits such as gardening. Counsel for the defendant invited me to assess her case as no more than one eighth of the most extreme case (s 3 of the Motor Vehicle Third Party Insurance Act). Counsel for the plaintiff, however, said it was capable of being assessed as being more than 25 per cent and in the area of 30 per cent.
I believe an assessment of 20 per cent of the most extreme case is appropriate.
$249,000 (prescribed amount) x 20% = $49,800.

Summary of award

Past loss of earning capacity  $ 21,349
Interest on past loss  $    2,241
Future loss of earning capacity  $ 20,000
Future costs of hip replacement/revisions       $ 26,345
Future medical costs  $    4,000
Past voluntary services  $    6,720
Special damages  $    7,154
General damages  $ 49,800
$137,609