James v Alinta Gas Networks Pty Ltd - [2006] WADC 6

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JAMES -v- ALINTA GAS NETWORKS PTY LTD & ANOR [2006] WADC 6

CORAM: COMMISSIONER POWER

HEARD: 8-10 MARCH 2005

DELIVERED : 31 JANUARY 2006

FILE NO/S: CIV 231 of 2001

BETWEEN: BRIAN NEIL JAMES
Plaintiff
AND
ALINTA GAS NETWORKS PTY LTD
First Defendant
PRECISION RESOURCES PTY LTD
Second Defendant

Catchwords:

Negligence - Damages - Left shoulder injury and property damage - Motor vehicle accident - Whether duty of care arises at common law - Content of duty of care - Breach of duty of care - Whether breach of duty caused loss and damage - Contributory negligence - Measure of past economic loss and loss of future earning capacity - Award of damages of $151,849.75

Legislation:

Nil

Result:

Judgment for the plaintiff in the amount of $151,849.75

Representation:

Counsel:

Plaintiff:     Mr D M Bruns
First Defendant             :     Mr G R Hancy
Second Defendant         :     Mr H M O'Sullivan

Solicitors:

Plaintiff:     Separovic & Associates
First Defendant             :     Phillips Fox
Second Defendant         :     Srdarov Richards Burton

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

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Donoghue v Stevenson [1932] AC 562
Graham Barclay Oysters Pty Ltd v Ryan & Ors (2002) 211 CLR 540
Home Office v Dorset Yacht Co Ltd [1970] AC 1004
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McLean v Tedman (1984) 155 CLR 306
Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 205 CLR 254

Case(s) also cited:

Andar Transport Pty Ltd v Brambles Ltd (2004) 78 ALJR 907
Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) A Tort Rep 81636
Australian Paper Plantations Pty Ltd v Venturoni [2000] VSCA 71
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 78 ALJR 933
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500
Pearson v Lambeth Borough Council [1950] 2 KB 353
Philco Radio and Television Corporation of Great Britain Ltd v J Sperling & Ors (1949) 2 All ER 882
Sullivan v Moody & Ors (2001) 207 CLR 562
Sutherland Shire Council v Heyman (1985) 157 CLR 424

COMMISSIONER POWER:

The plaintiff's claim

The plaintiff's claim against the first and second defendants is that their negligence caused an accident on 26 November 1999, in which the plaintiff suffered loss and damage.
The plaintiff's claim was particularised in the following way.
The plaintiff was riding his motor cycle in a northerly direction along Marmion Street, Cottesloe on the evening of 26 November 1999 when it collided with a pipe which was on the roadway of Marmion Street. The collision caused the plaintiff to lose control of his motor cycle and fall onto the roadway. As a result of the fall, he sustained personal injuries and his motor cycle was damaged.
The pipe with which the plaintiff's motor cycle collided came from an unsecured bundle of pipes, which had been left some short distance from the scene of the accident on the verge of the premises at 78 Forrest Street, Cottesloe on 25 or 26 November 1999.
The negligence of each of the defendants was particularised in the following way:
"[Each of the defendants] Failed to secure the bundle of pipes to the ground or to each other in the bundle so as to avoid the risk of the pipes being moved or displaced by third persons or weather conditions, the risk of which the defendant knew or ought to have known of."
The plaintiff abandoned his claim against the second defendant on the last day of the trial. Consequently, the claim against the second defendant was dismissed. The relevant costs were reserved. Accordingly, it is unnecessary to give any further consideration to the claim against the second defendant in these reasons for decision.
As a result of the accident, the plaintiff suffered a fracture of his left clavicle, a left upper brachial plexus traction injury, a closed head injury, an injury to his left supra‑scapular nerve causing a nerve palsy, an injury to his cervical spine resulting in nerve root stretch at C5/C6 and soft tissue injuries to his left shoulder, knee and hip. The plaintiff's injuries caused him pain, suffering, inconvenience and loss of enjoyment of life and were and are productive of a requirement for past and future treatment, past and future gratuitous services, past loss of income, loss of future earning capacity, property damage and associated loss and damage.

First defendant's defence

The first defendant was and is a corporation. Its defence to the plaintiff's claim was in the following terms.
Between 24 and 26 November 1999, underground gas pipelines were being installed in the vicinity of Marmion and Forrest Streets, Cottesloe. The work was being undertaken by the second defendant, which was an independent contractor engaged by the first defendant to undertake the work. The unsecured bundle of pipes, which were left on the verge of the premises at 78 Forrest Street, Cottesloe, were left at that location by another contractor which had been engaged by the first defendant.
The first defendant denied the accident and that it was caused by its negligence. If the accident occurred and involved a pipe from the bundle which had been left on the verge at 78 Forrest Street, it was moved and placed on Marmion Street by an unknown third party. The first defendant was not responsible for the actions of that unknown third party and the movement and placement of the pipe from its original location was not reasonably foreseeable.
In the alternative, if the accident occurred, it was caused by the plaintiff's contributory negligence. The plaintiff was negligent by failing to keep a proper lookout as to where he was riding his motor cycle, riding it at a speed which was unsafe in the circumstances and failing to take adequate care when riding his motor cycle from Forrest Street into Marmion Street. The remainder of the plaintiff's claim against the first defendant was denied.

Agreed facts

A number of facts were agreed between the parties. They were:
"1.The first defendant ordered pipes for delivery at the premises situated at 78 Forrest Street, Cottesloe, on 24 November 1999.
2.A bundle of pipes (not tied together) was placed on the verge at the premises at 78 Forrest Street, Cottesloe, on 25 or 26 November 1999 by the first defendant's agents.
3.As at the evening of 26 November 1999, the pipes remained at the premises at 78 Forrest Street, Cottesloe.
4.The premises at 78 Forrest Street, Cottesloe, are approximately 30 metres from the place of the accident."

Issues for determination

The issues requiring determination are whether the first defendant owed the plaintiff a duty of care in all of the circumstances. If so, the nature and extent of that duty of care. Assuming the existence of a duty of care, whether that duty was breached by the first defendant. If so, whether the breach caused any loss or damage. If so, the nature and extent of any such loss and damage. Assuming the first defendant was negligent, whether the plaintiff was contributorily negligent.
The first defendant also contends that the plaintiff has failed to plead a proper case in negligence. More specifically, it argues that the plaintiff has not pleaded:
(a)that the plaintiff was owed a duty of care by the first defendant;
(b)any relationship between the plaintiff and the first defendant or facts giving rise to such a duty of care;
(c)any facts from which it may be inferred that the first defendant knew or should have known of the alleged risks;
(d)any duty by the first defendant to protect the plaintiff from the conduct of unknown third parties or any facts to support such a duty;
(e)the content of any alleged duty of care;
(f)how the pipe with which the plaintiff's motor cycle is alleged to have collided came to be where it was; and
(g)what conduct engaged in by the first defendant constituted a breach of any duty of care owed to the plaintiff.

Duty of care

The classical pronouncement of a general formula for "duty" is Lord Atkins "neighbour test" in Donoghue v Stevenson [1932] AC 562, where he said:
"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." (at 580.)
An alternative expression of the duty is:
"If A can reasonably foresee that some act or omission of his may have the result that loss or damage may be suffered by B who was someone who would be closely and directly affected by the act or omission, there will be some circumstances in which a legal duty will be owed by A to B and some in which it will not." (Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1037H.)
Moreover:
"In answering the question which I have posed, help will sometimes be derived by considering the way in which claims arising in particular cases have been dealt with by the courts. Particular decisions in relation to claims arising from sets of facts comparable to those being investigated may, if approved, give guidance. But precedents do not fix the limits of what may be called duty situations; they illustrate them. If there are no clear‑cut precedents the Court may have to reach a decision whether, once the facts and circumstances of a situation are ascertained, it can be said that it was a 'duty situation.' " (Home Office v Dorset Yacht Co Ltd (ibid) at 1038B.)
In short, the categories of negligence are never closed (Donoghue v Stevenson op cit, at 619) and whether a duty of care exists or not in a given situation where there are no clear precedents, will often depend on the facts and circumstances of the particular case.
The simple description of the duty of care as an obligation, recognised by others, to avoid conduct fraught with unreasonable risk of danger to others (J G Fleming, "The Law of Torts", 9th ed, 1998 at 149) is a succinct expression of what is said about the duty of care in Graham Barclay Oysters Pty Ltd v Ryan & Ors (2002) 211 CLR 540 at 622 – 623 [230]:
"There are certain 'standard questions' (Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 475 [115]) dissect the composite notion of common law liability in negligence. Relevantly, those questions analyse the concept in terms of: (1) the duty of care; (2) the scope of the duty; (3) the breach; and (4) the causation of damage. Although these issues are commonly considered separately, it has been pointed out many times that 'each element can be defined only in terms of the others' (John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 241 – 242) for example, that 'the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it' (Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487). These words teach an important lesson. Excessive analysis and undue intellectual subdivision of what is basically a unitary concept can lead a decision‑maker into over‑sophisticated elaboration of a notion that is, at its heart, a reflection of practicality and common sense."
And at 628 – 629 [244]:
"… we seem to have returned to the fundamental test for imposing a duty of care, which arguably explains all the attempts made so far. That is, a duty of care will be imposed when it is reasonable in all the circumstances to do so."
Merely because the facts of a particular case do not fit within one of the well understood duty situations does not mean that there can be no duty of care owed by one party to another. More important is a proper examination of the facts to determine whether it is reasonable in all of the circumstances to impose a duty of care.
In the case of harm from a third party, the duty of care owed by one party to another has been described as arising in circumstances where the party to whom the duty is owed has some special vulnerability and the party who owes the duty has some special knowledge, the assumption of a responsibility by the party said to owe the duty or a combination of both (Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 205 CLR 254).
This is the legal framework within which this aspect of the plaintiff's claim should be considered.

The plaintiff's evidence

The plaintiff gave evidence to the following effect at trial.
The plaintiff was born on 5 August 1957, making him 48 years of age. He described his current occupation as a fishmonger.
At about 8.30 pm on 26 November 1999, the plaintiff was riding his Ducati 748 cc motor cycle north along Curtin Avenue, Cottesloe. Night had fallen and it was dark.
The plaintiff's motor cycle was a sports machine, which was in good mechanical condition. The headlight fitted to the motor cycle was fitted in a fixed position, so that the beam of the headlight directly illuminated what was ahead of the motor cycle in line with its chassis, rather than illuminating what was in line with the front wheel when it was turned to one side or the other.
The plaintiff travelled north along Curtin Avenue until he reached its intersection with Forrest Street, Cottesloe. At the intersection, he turned the motor cycle left to head in a westerly direction along Forrest Street, intending to turn right to head in a northerly direction along Marmion Street. Marmion Street was roughly parallel with Curtin Avenue. As he approached the intersection of Forrest Street and Marmion Street, he saw an oncoming motor vehicle. He slowed his motor cycle to allow the oncoming vehicle to pass by him before he turned right into Marmion Street. There was no street lighting on the north western corner of the intersection of Forrest and Marmion Streets, although there was some ambient light from the street lights on Curtin Avenue. The ambient street lighting in the vicinity of the intersection of Forrest and Marmion Streets was dull.
After turning into Marmion Street, the plaintiff travelled about 5‑10 metres into Marmion Street before he lost control of his motor cycle and fell off it. The plaintiff described this event in the following way in his evidence:
"As the car went past I turned right into Marmion Street and the next thing I knew…the bike had just pulled out from my hands and not long after that I was laying on the road." (T30)
The plaintiff did not see anything on Marmion Street before losing control of his motor cycle. He was only able to estimate the speed at which his motor cycle was travelling when he lost control of it, but did not believe he was riding it at a speed which was unsafe in the circumstances. He estimated its speed was around 30 kilometres per hour, but he was not looking at its speedometer just before losing control of his motor cycle.
The plaintiff believes he lost consciousness shortly after losing control of his motor cycle and falling off it onto Marmion Street. When he regained his senses, he estimated that he was lying on Marmion Street about 5‑10 metres in from its intersection with Forrest Street. His motor cycle was lying on its side another 5‑7 metres further north along Marmion Street.
Shortly after the accident, the plaintiff was approached by a man who he now knows to be Mr Stanley Parkinson. Mr Parkinson drew his attention to a pipe which was lying on Marmion Street, not very far from the plaintiff. He was able to see the pipe clearly enough to distinguish it as a very long yellow plastic pipe with Alinta Gas markings on it. He estimated it to be 8‑10 metres in length with a diameter of approximately 50‑60 millimetres. The pipe was lying across the roadway on Marmion Street, very close to Forrest Street. It was about 5‑10 metres in from the intersection on Marmion Street. The plaintiff saw the pipe moved to the eastern verge of Marmion Street after the accident.
The plaintiff identified two photographs of the intersection (exhibits P10 and P11), which he took about 12 months earlier. He confirmed that the photographs showed no significant changes from the time of the accident. Although photographs do not always accurately depict their subject‑matter, it does appear from exhibits P10 and P11 and other photographs of the intersection (exhibits P1, P2 and P3) that Marmion Street is roughly down hill from Forrest Street and that the verges of the premises on the northern side of Forrest Street fall away towards the south and Forrest Street. There was no evidence about the gradients for Forrest Street or Marmion Street at or about the intersection of those two streets. Nor was there any evidence about the gradient of the verge outside 78 Forrest Street. It does appear from the photographs, that for an object to travel from the verge on 78 Forrest Street to a location about 5‑10 metres north into Marmion Street from its intersection with Forrest Street, that object would be travelling generally in a downhill direction. I was not asked to view the scene of the accident.
Mr Parkinson helped the plaintiff lift his motor cycle off its side. The motor cycle was rideable. Consequently, the plaintiff started it and rode home. At the time, he lived about half a kilometre from the scene of the accident.
When he got home, he had to park his motor cycle in the driveway, because he was unable to open the garage door to put it away in the garage. He started to feel faint. After removing his helmet and jacket, he noticed there was something wrong with his left shoulder. He unsuccessfully attempted to get some help from his neighbours. During this time, his pain was increasing. About 5‑10 minutes later, his brother arrived at his home and took him to Fremantle Hospital. By then, he was experiencing extreme pain in his left shoulder, which he believes was the cause of him losing consciousness. On arrival at hospital, he was admitted to the emergency section where he was treated with Pethidine, x‑rayed and told that he had a broken collar bone. He was given an arm sling to wear and discharged from hospital that night.
The morning after his accident, the plaintiff asked one of his neighbours, Mr Peter Van Veen, to retrieve the pipe. Shortly after, Mr Van Veen brought a section of pipe to the plaintiff's house. The section of pipe was said to have a tyre mark and scratches on it. The plaintiff kept the section of pipe, which was present in court during the trial. It was not tendered in evidence. I was not asked to, and consequently did not, inspect it.
In the ensuing months, the plaintiff returned to Fremantle Hospital as an outpatient for further review and treatment, still suffering from pain and a feeling of general weakness in his left arm and shoulder.
For about four months after the accident, the plaintiff continued to take pain‑killing and anti‑inflammatory medication in increasing quantities before deciding that he should cease and simply learn to put up with the pain and discomfort. During that time, he also received dressings for his grazes. His left arm was immobilised in a sling for about three weeks. After that, he received physiotherapy and mobilisation on his left arm and shoulder from Mr Bruce Paulik.
At the time of his accident, the plaintiff's general practitioner was Dr Jenkins. Dr Jenkins referred the plaintiff to Dr Goodheart, consultant neurologist, for review and treatment. In addition to Dr Goodheart, the plaintiff has been reviewed and treated by Messrs Bath, Ecker and Kagi, orthopaedic surgeons, in respect of his injuries.

About 12 months after the accident the plaintiff was operated on by Mr Kagi to assess the damage to his supra‑scapular nerve. It was necessary to re‑fracture and re‑set his left collar bone with a plate and screws. The plate and screws remain in place.
The plaintiff's present symptoms are stiffness in his neck, a tightness across the union site of his fractured clavicle where there are two prominent bony lumps, numbness of approximately a hand's width above and below the fracture site on his chest wall and tingling along an arc which can be traced from the inside of his left index finger to the inside of his left thumb. In addition, he has a general weakness in his left arm and difficulty sleeping on his left side due to a feeling of discomfort. The plaintiff also has a large scar which runs from just below his left ear along the line of his left clavicle towards his left shoulder. The scar is clearly visible and unsightly. It is well depicted in the photographs of the plaintiff's left shoulder region taken on 8 March 2005 (exhibit P7). The plaintiff also has a scar on his hip from where he struck the roadway after falling off his motor cycle.
The plaintiff's left shoulder is slightly lower than his right shoulder, since the accident. The discrepancy is said to be depicted in one of the four photographs which make up exhibit P7.
About 18 months after the accident, the plaintiff took up yoga to keep fit, to prevent his body from twisting and to keep it flexible. Since March 2003, he has been doing exercises to keep his upper body, including his left arm and shoulder, strong.
Prior to the accident, the plaintiff was physically fit and active. He swam, ran, sailed, board‑surfed and rode a mountain bike. He was able to do all of his household duties and was in good physical condition and health. The plaintiff described himself as someone who was very fit for all of his life. He started swimming as a child and by age 30 was doing triathlons, which he did for some six years. He used to run to the beach most mornings and then swim and run home again, as part of his exercise regime, when he was living in Cottesloe. The plaintiff now walks. He tried jogging, but it did not feel right.
It was about three to four months after the accident before the plaintiff was well enough to undertake much in the way of physical activities. In that time, he received some help from his friends with household duties, such as cooking, cleaning, washing and hanging out the laundry. His friends also drove him to the chemist and to appointments for treatment of his injuries, such as physiotherapy. The assistance from his friends averaged about 10 hours per week and continued for about four months after the accident.
In addition, the plaintiff's injuries and their sequelae interfered with his ability to look after and interact with his son during their time together.
The plaintiff completed his secondary schooling and one year in business administration studies at what is now known as Curtin University. He did not complete the business administration studies course.
Between 1976 and about 1983 the plaintiff travelled around Australia doing a variety of jobs, including rouseabouting.
In about 1983, the plaintiff started work in the family business, P C James & Co Pty Ltd. The business involved the manufacture of window furnishings and required the plaintiff to be proficient in a number of warehousing skills. The plaintiff's father decided to sell the business in about 1996 or 1997 and offered it to the plaintiff. At the time, the plaintiff did not consider that it would be viable for him to acquire and run the business. Consequently, he left the business when his father retired.
At about the same time, the plaintiff was in the process of a separation and divorce from his wife. Their 10‑year‑old daughter had died of a disease called haemophagocytic syndrome. It was a traumatic period in his life. The plaintiff decided that he would make some changes in his life and do something different. He had always been interested in surfing and sailing. The divorce and the subsequent sale of some of the joint assets freed up some funds, which he used to take some time off and go sailing overseas. When he returned, the plaintiff enrolled in a course at the Fremantle Maritime Centre with the intention of obtaining the Australian Yachting Federation yacht master qualification TL4.
The plaintiff was due to finish the yacht master course in January 2000. As at the date of the accident, he needed only to complete the celestial navigation and practical examination, which involved an 18 hour sea time examination with members of the Department of Transport as inspectors. The plaintiff did not complete the yacht master course, because the injuries suffered by him in the accident left him without the physical abilities necessary to do so. He was not able to operate the sextant with one arm and was not physically fit enough to complete the practical examination. His left shoulder was weak and painful and that made it impossible for him to do the practical examination.
The Fremantle Maritime Centre was, at all material times, part of the South Metropolitan College of TAFE. The plaintiff tendered three statements of academic record (exhibits P4, P5 and P6) and the course descriptions for the Yacht Master and Ocean Yacht Master certificates (exhibit P28). The documents confirmed that the plaintiff had almost completed the course requirements by the time of the accident.
Prior to the accident, the plaintiff had intended to travel to New Zealand for the America's Cup on attaining his yacht master qualification, with a view to making some contacts and getting a job as the master of a yacht. He had intended to travel to New Zealand some time between mid-February and mid‑March 2000, depending on his circumstances at the time.
Between leaving the family business and the date of the accident, the plaintiff was not engaged in full‑time employment.
The plaintiff's book of financial documents is exhibit P8. It contains a number of income tax returns disclosing the plaintiff's earnings in the financial years ending 30 June 1996, 30 June 1997, 30 June 2002, 30 June 2003 and 30 June 2004.
In the financial year ending 30 June 1996, the plaintiff's taxable income as a manager of P C James & Co Pty Ltd was $49,266. In the year ending 30 June 1997, his taxable income in the same position for the same employer was $24,494.
No income tax returns were tendered for the years ending 30 June 1998 through to 30 June 2001. Presumably, the plaintiff did not earn a sufficient amount in those years to require the filing of any income tax returns.
In the 12 months following the accident, the plaintiff was unable to obtain any gainful employment. He was in receipt of sickness benefits for most of 2000 and into 2001.
In 2001, the plaintiff moved to Roleystone and began working for a fruit wholesaler for minimal remuneration, to gain some appreciation of the fruit wholesale industry. In the following season, he became more involved. The season lasted six months. For the last part of his time in the fruit and vegetable industry, he worked for a company called Primeline Produce. His employment with that company lasted about six weeks. He was asked to put together a business plan and a marketing plan for the principals of that business. Unfortunately, the principals could not agree on how they wanted to run the business, with the result that he was eventually asked to go and do manual work at the markets. He did not see any future in that type of work and consequently resigned. The plaintiff's intention was to work in sales, not as a labourer.
In the year ending 30 June 2002, the plaintiff received dividends of $15,000 and an imputation credit of $6,428. In addition, he earned $5,216 as a fruiterer working for B J Fruitiers. The business activity for that business was described as a fruit picking service. The plaintiff's taxable income for that year was $26,644.
In the year ending 30 June 2003, the plaintiff received dividends of $19,000 and an imputation credit of $8,143. He also earned $25,005 from B J Fruitiers. His taxable income for that year was $52,148.
In the year ending 30 June 2004, the plaintiff received social security payments in the sum of $3,137, franked dividends in the sum of $13,000 and a franking credit of $5,571. In the same year, he received $8,783 from the business B J Fruitiers. His taxable income for that year amounted to $30,051.
In the three weeks prior to the trial, the plaintiff had been working looking after a friend's frozen fish stall, being run on the side of the highway in Ravenswood. The stall runs from Thursday through to Sunday. The plaintiff is in discussions with the owner to see if he can do some more work with a view to buying the business off him in the future. Deliveries are received at the business on a Thursday and packages range between 10 and 20 kilograms in weight. The plaintiff is able to manage the manual handling of those packages. The type of business appeals to him. There is not a lot of physical exertion involved.
In cross‑examination, the plaintiff agreed that by October 2000 he had almost fully recovered the power in his left shoulder, albeit that he still had some difficulty with external rotation.
The plaintiff also confirmed in cross‑examination that he had not seen any medical practitioners for the purpose of obtaining medical advice for the treatment of his left shoulder or arm since July 2001.
The plaintiff's complaint of tightness in the neck is, by the plaintiff's own admission in cross‑examination, a new complaint, which had not been made to any medical practitioner prior to February 2005.
The plaintiff has not had the steel plate and pins removed from his shoulder, because he cannot afford to do so at this time.
Since the accident, the plaintiff's injuries have made it difficult for him to engage in swimming, running, sailing, board‑surfing and mountain bike riding. His injuries have interfered in his physical ability to engage in these pastimes. Although he has swum, run, sailed, body surfed and ridden a mountain bike since the accident, his physical ability to engage in each of them has now been severely limited. For example, he doubts that he now has the physical ability to work the winches when sailing and walks rather than runs.

Evidence of Mr Stanley William Parkinson

Mr Parkinson was called by the plaintiff and gave evidence to the following effect.
Mr Parkinson was driving his motor vehicle north along Curtin Avenue, shortly after the plaintiff. He turned left from Curtin Avenue into Forrest Street and then right into Marmion Street. As he turned right into Marmion Street, he saw the plaintiff and the plaintiff's motor cycle lying on Marmion Street. He also saw a yellow pipe lying at right angles across Marmion Street. He stopped his motor vehicle on Marmion Street at a point to the south of the pipe, the plaintiff and his motor cycle. He got out of his motor vehicle, went over to the plaintiff and helped the plaintiff lift his motor cycle off its side. The plaintiff then got on his motor cycle and rode off.
Mr Parkinson described the pipe lying on Marmion Street as one of the yellow gas pipes which were being installed around Cottesloe at that time.
Mr Parkinson removed the pipe from Marmion Street and put it on the grass verge.

Evidence of Mr Peter Van Veen

Mr Van Veen was also called by the plaintiff and gave evidence to the following effect.
Mr Van Veen was a neighbour of the plaintiff at the time of the accident and had been a friend of the plaintiff's family for many years.
At about 9 am in November 1999, the plaintiff asked Mr Van Veen to go to the scene of the accident to retrieve the pipe. The plaintiff told Mr Van Veen that the pipe had been left on the verge on the side of Marmion Street. He described it to Mr Van Veen as about 8‑9 metres long and "yellow‑orangey" in colour.
When Mr Van Veen arrived at the scene of the accident, he saw a pipe matching the plaintiff's description of it on the eastern verge of Marmion Street. He cut the pipe into two or three pieces, tied a section of it to the top of his motor van and delivered it to the plaintiff. The verge from which Mr Van Veen retrieved the pipe was grassed.
Forrest Street was described as a street busy with both vehicular traffic and pedestrians. Pedestrians usually walked on the south side of the street, because of the absence of a footpath on the north side of the street. Forrest Street was a popular route for people travelling between the nearby train station and Cottesloe Beach.
Forrest Street west of its intersection with Marmion Street was described as falling slightly towards Curtin Avenue and Marmion Street. The verges on Forrest Street sloped gently from north to south. The verges on the north side of Forrest Street sloped all the way down to Marmion Street and Curtin Avenue. The verges on Forrest Street sloped towards Forrest Street.
As a resident of Cottesloe, Mr Van Veen could recall seeing gas pipes left in a number of areas around the streets of Cottesloe, but could not remember exactly where they were left. He could see no reason why the pipes which he saw could not have been secured in some way, implying that they were not secured in some way.

Evidence of Mr Gary Phillip James

In support of his claim for past loss of income and loss of future earning capacity, the plaintiff tendered copies of two letters from his brother, Gary Phillip James. Both letters were addressed "To whom it may concern" and appeared to have been obtained for the purpose of this trial.
The first letter is undated. It confirms that in late September 2003, the plaintiff's brother travelled to New Zealand for the America's Cup, where he obtained employment as a "skipper" transporting tourists to and from the America's Cup course and on tours around the viaduct in New Zealand. In the same letter, the plaintiff's brother states that he developed connections during that time that led to other positions as a "skipper", delivering boats around the north‑east of the North Island and on luxury charters and ferry work in and around Auckland Harbour. The letter states that in March 2004 he travelled to France to further his career as a captain and acquired a position as a first mate on a 26 metre motor vessel, the MV Negresca, which finally led to him obtaining the position of captain of that vessel in May 2004. The vessel now cruises around the Mediterranean, including Italy, Greece, Turkey, Croatia and France. At the time of writing that letter, the plaintiff's brother stated that he was earning €4,000 per month (tax free), plus accommodation and living expenses. As it was his first command, he did not receive the standard remuneration package, which was €5,000 per month. The letter is signed by the plaintiff's brother as captain of the MV Negresca, indicating that it was written no earlier than May 2004 (exhibit P9).
The second letter from the plaintiff's brother is dated 3 March 2005 (exhibit P20). In that letter, he states that he was born on 3 October 1958 and has a yacht master TL4 qualification, which allows him to captain vessels. It also states that he upgraded his qualifications in 2003 to those of a NZ Offshore Master. It records that between 1999 and 2002 he was earning $2,000 per month at Monkey Mia, $2,500 per month in the period 2002‑2004 as a "skipper" in Auckland, New Zealand, and $7,000 per month as a "skipper" in the period 2004‑2005 in Italy and France. In the letter, his brother also states that he captains a 26 metre super yacht in the Mediterranean and earns $A7,000 per month. He states that this has only come about by the courses and the work experience he has done over the last five years. He states also that he does not pay any tax on his remuneration, because he does not spend more than three months in any one country.

Evidence of Dr Evan Marlow Jenkins

Dr Jenkins was called by the plaintiff and gave evidence to the following effect.
The plaintiff had been a patient of the Westport Medical Centre since 11 December 1996 and Dr Jenkins had been the plaintiff's general practitioner at that practice for a number of years.
The plaintiff consulted Dr Jenkins or his colleague, Dr Graeme Martin, at the practice in respect of his injuries on 18 and 24 January, 25 February, 4 April and 19 May 2000 and more recently on 16 February 2005.
Dr Jenkins prepared four medical reports, which were dated 29 February 2000 (exhibit P17), 19 May 2000 (which was not tendered), 17 July 2000 (exhibit P18) and 2 March 2005 (exhibit P19).
Dr Jenkins described the injuries suffered by the plaintiff in general terms as a comminuted displaced fracture of the left clavicle with an associated supra‑scapular nerve stretch, resulting in severe supra‑scapular neuropathy.
In his first report dated 29 February 2000, Dr Jenkins recorded that the plaintiff was having physiotherapy twice a week, involving stretching and shoulder girdle strengthening exercises. In the same report, he described severe wasting of the infra‑spinatus and supra‑spinatus muscles and recorded the plaintiff's complaint of intermittently severe pains from his clavicular fracture site.
The history taken by Dr Jenkins on the plaintiff's initial consultation with him on 18 January 2000 was that the plaintiff was riding his motor cycle in Cottesloe on the evening of 26 November 1999 when he entered the roundabout at the intersection of Forrest and Marmion Streets. Dr Jenkins recorded the plaintiff telling him that there were some long pipes left on Marmion Street, measuring nine metres in length and 45 millimetres in diameter. He also recorded the plaintiff told him that he hit them and was thrown from his motor cycle, landing heavily on his left shoulder. There is an obvious discrepancy between the account taken by Dr Jenkins and the accounts of the other witnesses, in that Dr Jenkins has made a record which refers to more than one pipe being left on Marmion Street and describes a roundabout at the intersection of Forrest and Marmion Streets. This account does not accord with the remainder of the evidence, which is to the effect that there was only one pipe on Marmion Street and no roundabout at the intersection.
In his report dated 17 July 2000, Dr Jenkins recorded the results of his examination of the plaintiff as showing a mild and tender deformity of the mid‑shaft of the left clavicle consistent with a recent fracture. He also recorded that the plaintiff's supra‑spinatus muscle had wasted. The left shoulder did not appear to be significantly tender. Flexion was reduced to 60 degrees from the vertical and abduction to 80 degrees from the vertical. The plaintiff was unable to elevate his left hand between his shoulder blades with his shoulder in external rotation. Passive shoulder range was otherwise full, with some discomfort. Upper limb muscle tone was bilaterally normal. Power in his shoulder group muscles was significantly reduced, with marked weakness of the left supra‑spinatus. There was diminished sensation in the first and second rays of the left hand, consistent with a C7 distribution in all modalities.
In the same report, Dr Jenkins described the plaintiff's injuries in more detail as a comminuted displaced fracture of the mid‑shaft of the mid‑clavicle which had not united, a small postero‑lateral fracture of the distal clavicle which had not united, left supra-scapular neuropathy, a left upper brachial plexus traction injury, a left frozen shoulder, a mild closed head injury and grazes to his left shoulder, knee and hip.
The initial treatment for the plaintiff's injuries was described as conservative, with dressings to his grazes, a left arm sling (which was later removed after three weeks) and physiotherapy and mobilisation thereafter with Mr Bruce Paulik.
As at the date of that report, Dr Jenkins' opinion was that the plaintiff would be left with some permanent residual disability and would be unable to perform anything but very light and limited duties with his left arm and hand. He would be unable to take on any labouring duties or any kind of two‑handed lifting, as well as any manipulative work involving the left hand. He believed there was some scope for improvement in the plaintiff's level of functioning, but that a degree of adaptation to the likely residual neurological deficit would have to occur to maximise the plaintiff's upper limb functions. It was likely that the plaintiff would be largely incapacitated with his left upper limb function for about six months. The plaintiff was unlikely to fully recover his left shoulder function.

Dr Jenkins' last report dated 2 March 2005 reported on his last consultation with the plaintiff on 16 February 2005.
In that report, Dr Jenkins recorded a small residual distal clavicular deformity with mild numbness and tenderness around the site of the fracture. The range of shoulder movement was nearly full, with minimal discomfort at the extremes of movement. The plaintiff had a subjectively reduced sensation to all sensory modalities, the inner (ulnar) aspect of his left thumb, the skin overlying the left distal clavicle and his acromio‑clavicular joint. Tone, power and upper limb reflexes were all normal.
At that consultation, the plaintiff complained of a general residual feeling of left shoulder weakness, mild stiffness and tightness with movement. He also complained of a numb feeling over the inner aspect of his left thumb and the skin around the left distal clavicle. The plaintiff told him that his shoulder was continually sore and somewhat tender around the site of the previous fracture of the distal clavicle and that he found it difficult to sleep on his left shoulder. He also told Dr Jenkins that the metal plate used to fix the clavicular fracture had recently been found to be broken, with the result that the fracture had not united. The plaintiff complained of no psychological symptoms, apart from his ongoing adjustment to his changed life circumstances.
Dr Jenkins recorded that the plaintiff had made significant gains in his left shoulder and arm function, but noted that recovery was by no means complete and probably never would be complete. He expressed the view that the plaintiff was fortunate in making an almost complete and good recovery from the traction injury to his left upper brachial plexus and left supra‑scapular nerve.
As at the date of his last review, Dr Jenkins diagnosed the plaintiff as suffering from a persisting non‑united fracture of the left distal clavicle with breakage of the steel plate (subject to confirmation), mild residual sensory impairment of the left thumb, following a traction injury to the upper brachial plexus, and chronic left shoulder pain and stiffness, following his injuries to the left shoulder and clavicle. Dr Jenkins expressed the view that the plaintiff would be unable to undertake heavy physical work involving the left hand and arm and was at an increased risk of left shoulder, arm or hand injury if such work was attempted. He considered him fit for most other work duties.
In the same report, Dr Jenkins expressed the view that there may be a need for further surgical treatment of the left clavicle fracture, but that there was little scope for other treatment in respect of the nerve injury.
Dr Jenkins anticipated the plaintiff would slowly improve with regard to left shoulder pain, depending on treatment, if required, with an increased risk of earlier than normal onset of post‑traumatic osteoarthritis of the acromio‑clavicular joint and possibly the gleno‑humeral joint of the left shoulder.
According to Dr Jenkins, the plaintiff would have required some home help for the performance of daily tasks in the first few months following the accident. He understood from what the plaintiff told him that he was getting help from his friends with tasks such as mowing the lawn and everyday chores, because of the pain he was in and because he could not use his left arm very well. He believed the assistance included cleaning and cooking. Dr Jenkins believed that the degree of domestic assistance given to the plaintiff by his friends was consistent with his physical condition at that time.
Dr Jenkins confirmed the plaintiff did not return to see him after July 2001, other than on the recommendation of his lawyer. He also confirmed that the plaintiff had given him no history of ever having done any heavy physical work.

Evidence of Mr Peter J Bath

Mr Bath was not called to give evidence by the plaintiff, but his two reports dated 9 December 1999 (exhibit P21) and 2 February 2000 (exhibit P22) were tendered as part of the plaintiff's case.
In his first report dated 9 December 1999, Mr Bath confirmed that the plaintiff had sustained a comminuted fracture of the left clavicle. He described his management at Fremantle Hospital and Health Service as conservative. He expressed the view that the fracture was likely to heal satisfactorily with time. He noted that the plaintiff's left arm would be in a sling for the first six weeks and it would probably be a good three months or so before the fracture was well enough healed for the plaintiff to take part in physical activities.
In his second report dated 2 February 2000, Mr Bath confirmed that he reviewed the plaintiff that day, some 10 weeks following his comminuted displaced fractured left clavicle and associated stretch injury to his supra‑scapular nerve (reflecting the degree of violence at the time of the injury). He confirmed the plaintiff's report that he did not have a problem with his neck after the accident. Mr Bath thought it unlikely that the plexus had a stretch injury at the roots. He believed the ongoing management of the supra‑scapular nerve palsy would be conservative. He noted some stiffness in the gleno‑humeral joint, which the plaintiff would need to work on to regain mobility. He also noted that the healing process of the fracture might require that it be plated and grafted.

Evidence of Dr Ross S Goodheart

Dr Goodheart was also not called to give evidence by the plaintiff. Like Mr Bath, his three reports dated 21 January 2000 (exhibit P23), 1 February 2000 (exhibit P24) and 30 March 2000 (exhibit P25) were all tendered in evidence as part of the plaintiff's case.
The plaintiff first consulted Dr Goodheart in respect of his injuries on 21 January 2000. The details of that consultation are recorded in Dr Goodheart's report of the same date.
In that report, Dr Goodheart recorded that the plaintiff had told him of the onset of paraesthesia involving the thumb and index finger of the right hand soon after recovery. He recorded the plaintiff's complaint of generalised weakness in the left arm and ongoing pain, particularly around the shoulder and supra‑clavicular region.
Dr Goodheart's physical examination on 21 January 2000 showed the plaintiff's cranial nerve function was normal and that he had a good range of neck movement. There was some wasting of the infra‑spinatus and supra‑spinatus muscles, as well as an apparent global wasting of the left arm muscles. Formal testing of muscle power was limited by pain. There was significant weakness of external rotation of the left shoulder, but the more distal muscles were strong. The deep tendon reflexes were brisk and symmetrical and formal testing of sensation over the left thumb and index finger did not show any major deficit.
Electrophysiological studies showed some evidence of significant supra‑scapular neuropathy. Although some minor changes were seen in the left arm muscles, there was no definite evidence of brachial plexopathy.
Dr Goodheart expressed the view that it was likely the left supra‑scapular neuropathy was related to the impact at the time of the accident. He did not believe the current non‑union of the plaintiff's left clavicle would have contributed. He also expressed the view there had been a stretch injury to the brachial plexus, but there was no major clinical nor electrophysiological evidence of any residual. He considered it likely that the continued subjective paraesthesia in the thumb and index finger could be localized to the brachial plexus, but there was no major motor involvement. He considered it possible there was some additional soft tissue injury in association with the gleno‑humeral joint.
The electromyography report, attached to Dr Goodheart's first report, recorded that the nerve conduction studies in the plaintiff's left arm yielded essentially normal results. EMG examination showed florid denervation changes in the infra‑spinatus and supra‑spinatus muscles. Some minor denervation changes were seen in the left arm muscles. There was no electrophysiological evidence to suggest severe supra‑scapular neuropathy. No active motor unit potentials were seen and no definite denervation was seen in association with other branches of the brachial plexus.
Dr Goodheart's second report dated 1 February 2000 dealt with his review of the plaintiff on the same date.
In that report, Dr Goodheart noted the MR scan of the plaintiff's brachial plexus failed to show any major abnormality, although the radiologist who performed the scan commented on some probable oedema around the C5/C6 nerve roots and the upper trunk region. Dr Goodheart considered it "certainly probable" that there had been some stretch in this area. On a clinical basis, he considered nerve root avulsion was unlikely. It did not appear to him there was any structural abnormality within the course of the supra‑scapular nerve. He noted the MR scan of the left shoulder showed some possible tendonitis or tearing associated with a supra‑spinatus tendon.
Dr Goodheart did not propose neurological intervention at that stage. He considered there was a good chance there would be recovery in the infra‑spinatus and supra‑spinatus muscles over the next month or two. He considered it likely that the predominant sensory systems in the left arm would settle.
In his final report dated 30 March 2000, Dr Goodheart recorded continued denervation change in the supra‑spinatus and infra‑spinatus muscles and some electrophysiological evidence to suggest continued, complete supra‑scapular neuropathy. In addition, he recorded some evidence suggesting isolated involvement of the nerve to the pronator teres, suggesting local entrapment. Given the absence of denervation change in other muscle groups studied in the left arm, he considered involvement of a lateral cord or middle trunk of the brachial plexus unlikely.

Evidence of Mr Geoff Ecker

Mr Ecker was also not called to give evidence. His report dated 24 May 2000 (exhibit P26) was also tendered in evidence as part of the plaintiff's case.
In that report, Mr Ecker described the plaintiff's injuries as a comminuted displaced fracture of the mid‑shaft of the left clavicle, which had not radiographically united. He recorded that it felt stable and was not symptomatic. He also noted a small postero‑lateral non‑united fragment of the clavicle at the acromio‑clavicular joint, which was asymptomatic and painless on performing acromio‑clavicular joint provocative manoeuvres.
Mr Ecker considered it highly probable that the plaintiff had an upper brachial plexus traction injury. He noted that the plaintiff became aware of numbness in the left hand after his surgery, which had subsequently improved. Electrophysiologically and on MRI scan, the plaintiff had a supra‑scapular nerve deficit. However, it was not possible to reliably test the supra‑scapular innervated muscles, because he had a frozen left shoulder.
In the same report, Mr Ecker noted a MRI scan of the plaintiff's cervical spine demonstrated that the plaintiff had lost the anterior cervical CSF column at the C3/C4, C4/C5 and C5/C6 levels. Mr Ecker was given no history of neck pain. Therefore, he concluded there was a high probability that this was unrelated to the accident.
Mr Ecker also expressed the view that the finding of differential changes in the infra‑spinatus, greater than the supra‑spinatus, might be a good prognostic indicator of some degree of reinnervation occurring.

Evidence of Mr John Kilton Kagi

Mr Kagi was called by the plaintiff to give evidence at the trial. His five reports, which were dated 27 October 2000 (exhibit P12), 17 November 2000 (exhibit P13), 17 January 2001 (exhibit P14), 26 May 2003 (exhibit P15) and 22 February 2005 (exhibit P16) were each tendered in evidence.
In his first report, Mr Kagi recorded the history given to him by the plaintiff of numbness in the (left) index finger and thumb and some weakness in the (left) forearm muscles shortly after the fracture of his (left) clavicle in the accident. He also recorded that the plaintiff still had reduced sensation in the tip of his thumb, but had regained all power in his arm (except for external rotation of the shoulder).
In the same report, Mr Kagi noted wasting of the supra‑spinatus and infra‑spinatus fossae, but with surprisingly good active external rotation. He attributed this to his extremely well developed posterior deltoid, which in turn was the result of his swimming prowess as a triathlete.
At the time of his initial report, Mr Kagi concluded the plaintiff's left supra‑scapular nerve had most likely been avulsed from its take‑off at the upper trunk of the brachial plexus. The indications for this were the velocity of the injury, the associated fracture of the clavicle, the marked wasting and, probably most of all, the length of time which had elapsed with no convincing signs of recovery. An avulsed supra‑scapular nerve would explain the other transient plexus symptoms and would be consistent with Dr Goodheart's electrical findings.
In his second report dated 17 November 2000, Mr Kagi recorded the results of his exploration of the plaintiff's left supra‑scapular nerve on 15 November 2000. It was necessary to re‑divide the fracture of the clavicle at the original fracture site to get adequate visualization. This revealed the nerve was detached from its insertion into the spinatae. It was quite attenuated when followed down to its termination, anterior to the scapula, well away from the supra‑scapular notch. The notch was empty. In the circumstances, he did not consider himself able to effect a repair. The clavicle was internally fixed with a plate following the exploration.
In his third report dated 17 January 2001, Mr Kagi recorded the outcome of his review of the plaintiff of the previous day. He recorded the plaintiff's advice that the clavicular osteotomy was not bothering him and that the union appeared to be progressing radiologically. He recorded that the plaintiff would be concentrating on strengthening his posterior deltoid.
Mr Kagi next reviewed the plaintiff on 13 March 2003, when he ordered an EMG and x‑ray of his left shoulder. The plaintiff consulted Mr Kagi again on 26 May 2003, with the results of those investigations. The fourth report of the same date is addressed to the plaintiff's solicitors, Separovic & Associates. In that report, Mr Kagi recorded the plaintiff's history that he fell off his motor cycle when he hit a piece of pipe on the roadway travelling at about 40‑50 kilometres an hour. The plaintiff told him he fell onto his left shoulder and was slightly concussed at the time. He also told him he sustained a graze to his left shoulder, a bruise on his left hip, a fracture of his left clavicle and was immediately aware of numbness in the left thumb and index finger and pain in the left shoulder.
In that same report, Mr Kagi noted the initial treatment given to the plaintiff as comprising a sling for the plaintiff's left arm, analgesics and physiotherapy.
Mr Kagi confirmed he recommended exploration of the supra‑scapular nerve, because of the complaint of persistent paralysis in the spinati muscles around the left shoulder. The exploration, referred to in the second report, revealed that the supra‑scapular nerve appeared to be attenuated, namely, to have been injured and stretched approximately 100 to 125 millimetres distal to the upper border of the scapula and to be travelling anteriorly, rather than posteriorly to the scapula, giving the impression that it was avulsed from its insertion into the musculature.
The plaintiff was reviewed post‑operatively on 23 November 2000 and 16 January 2001. On the latter occasion, x‑rays showed the osteotomy was uniting. Mr Kagi noted that the plaintiff appeared to be making some motor recovery. His power on external rotation was improving. However, it was not clear to Mr Kagi at that time whether that was due to recovery in the spinati or the posterior deltoid.
Mr Kagi did not then see the plaintiff again until 13 March 2003.
As at 26 May 2003, the history given to Mr Kagi by the plaintiff was that he was no longer taking medication for his left shoulder. Instead, he practised yoga every second day for his left shoulder and upper body.
Mr Kagi recorded the plaintiff's advice that he felt weakness in the left shoulder on engaging in activities such as surfing or swimming and a tightness from the left side of his neck down to his left shoulder. He also noted the plaintiff's advice that he felt weakness on lifting anything heavier than 10 or 15 kilograms and that he felt his left arm was lazy. For example, he involuntarily rested it between changing gears (presumably in a motor vehicle). Mr Kagi also recorded the plaintiff's advice that he experienced tingling in his left thumb spreading across the index finger on the back of his left hand. He also recorded the plaintiff's advice that he had a sensation that his upper body was twisted to the right. The plaintiff told him that it was for this reason that he practiced yoga every second day. It was Mr Kagi's understanding that the power in the plaintiff's left arm had improved since he had last seen him.
The occupational history given by the plaintiff to Mr Kagi and recorded by the latter was that he was a right hand dominant company director who was temporarily out of work at the time of the accident. Mr Kagi recorded that the plaintiff told him he was totally unfit for two years following the accident, but had since been working as a wholesale fruiterer.
Mr Kagi also recorded that the plaintiff did all of his own housework, despite the symptoms in his left shoulder. The plaintiff told him he did not drive as much as he did prior to the accident, finding it difficult to change the gears in older motor vehicles. Mr Kagi recorded that the plaintiff had resumed mountain bike riding and sailing, but was unable to proceed with his yacht master's certificate because of the accident. He told Mr Kagi he gave up the idea of proceeding with his yacht master's certificate, because of the lack of strength and confidence in his left shoulder.
In the same report, Mr Kagi noted the results of his physical examination of the plaintiff. He recorded slight generalized wasting around the left shoulder, compared to the right. The plaintiff's spinati appeared to have regained bulk since his initial examination. He noted the surgical scar on the lateral side of the neck/posterior triangle, which was not all that obvious to him. There was also numbness for a hand's breadth above and below the scar and a lump at the site of the clavicular fracture and osteotomy. The lump was not tender and the osteotomy felt solid. He noted a full active and passive range of movement in the left shoulder, with only slight discomfort on full active abduction. He considered the plaintiff had full power. He noted he had regained apparently normal power in the spinati. Neurologically, he noted some blunting of sensation in the pad of the left thumb, across the web of the thumb on the dorsal aspect to the radial side of the index finger as far as the tip. Otherwise, he noted no weakness in the musculature of the plaintiff's left upper limb.
Mr Kagi commented on the plain x‑rays taken on 16 January 2001, which was two months post‑operatively, in the same report. He noted they showed advanced healing at the osteotomy site. He also noted an EMG taken on 5 October 2000 showed changes in the supra‑spinatus and infra‑spinatus muscles consistent with paralysis of these muscles due to injury to the supra‑scapular nerve. An EMG taken on 7 April 2003 showed complete recovery in both the supra‑spinatus and infra‑spinatus muscles. An x‑ray of the left clavicle taken on 12 May 2003 showed the plate had broken but the osteotomy had united. Mr Kagi also recorded changes associated with the acromioclavicular joint, which were unrelated to the current injury.

In summarizing his report, Mr Kagi recorded the plaintiff appeared to have made a good recovery from his main injury to the left supra‑scapular nerve portion of the brachial plexus. He noted that the injury, in the fullness of time, appeared to have been an axonotmesis, being temporary damage to the nerve, rather than a neurotmesis, being a division of the nerve. Mr Kagi expressed the view the nerve had recovered completely leaving the plaintiff with normal power of the muscles, but with a subjective feeling of weakness in the shoulder. As Mr Kagi later explained in cross‑examination, the most likely explanation for recovery in the plaintiff's supra‑scapular nerve was that it had repaired itself, because the anatomical pathways were still intact.
In addition, Mr Kagi expressed the view the plaintiff still had evidence of an associated injury to another portion of the left brachial plexus, most likely the C6 root either adjacent to the cervical spine or in its passage through the posterior triangle or behind the fractured clavicle. He considered this to be his lesser injury, the only residual disability being the tingling or slight blunting of sensation in the left thumb and index finger region. He did not detect any motor weakness to this portion of the injury. He also noted the fractured steel plate did not appear to be causing any discomfort or producing any disability.
Mr Kagi expressed the opinion in that report that the plaintiff was fit for light duties from approximately November 2001, initially part‑time and subsequently, after approximately three months, full‑time. Part‑time light duties were defined as less than 20 hours per week.
Mr Kagi also expressed the view the plaintiff would be unfit for heavy or physically demanding work in the future.
With respect to future treatment, Mr Kagi noted the plaintiff was not taking any medication at the present and would only need to see his general practitioner irregularly, once or twice per annum. After removal of the fixation device, the plaintiff would need three attendances on medical specialists for that year, but not thereafter.
Mr Kagi considered the plaintiff would require therapy sessions and was content to regard the yoga sessions he was then having as a type of physiotherapy. He considered the plaintiff would require up to 20 such sessions per annum.
Mr Kagi considered the plaintiff would require further surgery, being the removal of the steel plate and screws from his left clavicle region. He noted it would require a general anaesthetic, two days in hospital and result in total unfitness for about one month, with the prescription of analgesic medication throughout that period. He did not envisage any other type of surgical intervention.
Furthermore, Mr Kagi did not foresee any change in the plaintiff's condition in the future. He considered he had a permanent disability in his left arm, by reason of the symptoms in his left shoulder and the residual numbness in his left hand. He did not believe it possible or likely that the plaintiff's level of permanent disability would increase due to either the effects of daily living or acceleration of the degenerative process.
Mr Kagi next saw the plaintiff on 22 February 2005 for the purpose of a medico‑legal report. The report is dated 22 February 2005 and is the last of the reports tendered through Mr Kagi.
In that report, Mr Kagi recorded that, in addition to the injuries mentioned in the earlier report, the plaintiff also advised him of having injured his neck at the time of the accident.
Mr Kagi also recorded the plaintiff had no specific treatment for his injuries since the time of his last report, but had seen his general practitioner once during that time. He recorded the plaintiff's advice that he had continued with his yoga exercises, usually three quarters of an hour every second day and a quarter to half an hour daily. He also recorded the plaintiff's advice that he was taking no medication at the time.
In the same report, Mr Kagi recorded the plaintiff's complaints at that time. The plaintiff told Mr Kagi that his left arm felt a lot weaker than his right. He also complained of feeling tight from the neck across the left shoulder and into the left biceps region. He said he found it hard to sleep on his left side. Consequently, he had to sleep on his right side, because of this tightness. He told Mr Kagi that it seemed to be worse early in the mornings and eased up as the day progressed or if he rubbed the back of his neck (in general) or after doing his yoga exercises. He said his left shoulder was stiffer. He also told Mr Kagi that the lump at the fracture site was large and annoyed him and pulled on the skin in the region and the left side of his chest as he moved. He said he would like the plate and screws removed and for the size of the lump to be reduced by removing as much bone as possible. He still had numbness in the left index finger and thumb and in an arc between the two.
The plaintiff told Mr Kagi at the date of his last review that he was working four days (40 hours) per week as a fishmonger.
The plaintiff also told Mr Kagi that at that time he was able to manage all of his housework, except that at times it was hard to get his arm up to the clothesline to hang up the washing. He said he could not lift anything heavier than about 7‑8 kilograms with his left arm. With both arms, he could lift nothing heavier than about 20 kilograms. He told him he avoided the heavier aspects of gardening.
The plaintiff also told Mr Kagi that his left arm seemed to get lazy when driving and he had to concentrate to keep it holding the wheel.
The plaintiff also told Mr Kagi that he did not swim or board‑surf as he did before the accident, because of his left shoulder. He said he could swim, but not at the level at which he was swimming prior to the accident. Mr Kagi knew him as a leading triathlete who would, for example, have considered swimming in the Rottnest swim.
At the time of that review, Mr Kagi conducted a physical examination of the plaintiff. He noted the plaintiff's left shoulder was slightly wasted compared to the right. It looked a little bonier than normal, quite apart from the lump at the clavicular fracture site. The lump was prominent, but not tender. There was still a scar at the site of the plexus exploration. The scar was curved and measured 230 millimetres, extending down the lateral side of his neck and along the left clavicle. The scar was not tender, but there was a hand's breadth of numbness distal to it on the left chest wall.
Mr Kagi recorded that the plaintiff had a full active and passive range of movement of the left shoulder in all directions, but the last 20‑30 degrees of active abduction and flexion were reported as producing discomfort in the left shoulder. There was no similar complaint in the right shoulder.
Mr Kagi noted no muscle wasting or weakness in the plaintiff's left upper limb compared to the right, including all muscle groups in the upper limb and shoulder. Sensation was recorded as slightly blunted to light touch in the palmar aspect of the left index finger and thumb, but regarded as adequate for protective function.
Mr Kagi's examination of the cervical spine recorded no deformity, nor any tenderness. The range of movement was less than normal for the plaintiff's age and build. However, the plaintiff could forward flex, so that his chin reached within two finger breadths of his chest and extend at 25 degrees or so. Lateral flexion was recorded as being approximately 30 degrees to either side and lateral rotation was recorded as 60 degrees to one side, with discomfort at the extremes of all movements except flexion.
The plaintiff's deep tendon reflexes were recorded as present, brisk and equal in both arms.
A pale dramatic scar just above the left iliac crest measuring 30 millimetres by 10 millimetres was also noted. The scar was not found to be tender.
In summary, Mr Kagi confirmed the plaintiff had sustained a left brachial plexus injury in the fall, affecting the supra‑scapular portion of the plexus and to a lesser extent the C6 nerve root. The former had, in Mr Kagi's opinion, completely recovered. The latter had left him with a numbness in his left hand and had not fully recovered. Mr Kagi also confirmed the fracture of the plaintiff's left clavicle had left him with symptoms in that region and a large bony lump at the clavicular fracture site.
Mr Kagi also considered the plaintiff had sustained a cervical sprain super‑imposed on his pre‑existing degenerative changes in his neck, which had left him with some stiffness in that area.
Mr Kagi noted the plaintiff had, in addition to the scars on the left side of his neck at the site of the exploration of the brachial plexus, some scarring at the site of the abrasion on his left hip.
Mr Kagi recorded there had not been any material change in the plaintiff's condition since his last report. He described his injury as mild to moderately severe.
Mr Kagi considered the plaintiff's capacity for work as slightly restricted in that, as a wholesale fruiterer or fishmonger, he would be limited to lifting around 20 kilograms with both arms and 7‑8 kilograms with his left arm and would be likely to remain limited in that way in the future.
In cross‑examination, Mr Kagi confirmed the plaintiff had told him he had hit a pipe with his motor cycle when travelling at 40‑50 kilometres per hour.
In cross‑examination, Mr Kagi also confirmed he had concluded by the time of his examination in October 2000, that the plaintiff had regained all of the power in his left arm, except for external rotation of the left shoulder.
Mr Kagi went on to confirm that, based on the plaintiff's presentation to him on 26 May 2003, the plaintiff would have been able to work. He would not have expected the plaintiff's condition to have worsened between that date and 22 February 2005. He also confirmed that by 26 May 2003, with full power and movement and restored muscle bulk of his left shoulder, the plaintiff should have been able to lift his arms or hang up the washing and he should have been able by that time to swim, walk or surf, albeit with some limitation.
Mr Kagi noted, in cross‑examination, that the neurological deficit, namely, the numbness in the left hand extending in an arc from the tip of his left index finger around to his left thumb, was representative of some mild permanent damage to the plaintiff's C6 nerve root.
Finally, Mr Kagi confirmed in cross‑examination that he did not record any difference in height between the levels of the plaintiff's shoulders and there was nothing to indicate to him that there had been any twisting of the plaintiff's body as a result of his injuries.

Evidence of Dr William Breidahl

Dr Breidahl's report dated 16 May 2000 was also tendered by consent in evidence. He was not called to give evidence.
In his report on an ultrasound on the plaintiff's left shoulder, he noted the following. The supra‑spinatus tendon was intact. There was mild tendinopathic change present in the anterior fibres of the tendon. There was no large partial thickness or full thickness tear. The region of the subacromial‑subdeltoid bursa was normal. He could not demonstrate impingement on active abduction.
Dr Breidahl also noted from the ultrasound that the infra‑spinatus tendon was intact. There was considerable atrophy of the infra‑spinatus muscle, consistent with long standing denervation.
Dr Breidahl also noted that the sub‑scapularis and long head of the biceps tendon were intact and normal. A small effusion surrounded the long head of the biceps tendon, a non‑specific finding which may be associated with adhesive capsulitis.

Plaintiff's credibility as a witness

The plaintiff impressed me as someone who was prepared to do his best to give honest and accurate answers to the questions which were put to him in the course of his evidence. His answers did not appear to be evasive and there were no significant inconsistencies in his evidence.
The plaintiff also impressed me as someone who was prepared to accept his circumstances and do his best to live with them, rather than dwell on what might have been and tend to make more of his pre-accident prospects than the circumstances would otherwise warrant. He did not impress me as someone who was prone to exaggeration or dishonesty.
In short, I found him to be an honest and reliable witness.

The existence and content of the duty of care, breach of duty and causation

Before making any findings about whether there was a duty of care, what that duty was, whether it was breached and if so, whether that breach caused any loss or damage, a careful review of the evidence is necessary, to determine what findings should be made and what inferences should be drawn.
There are a number of matters about which there was no evidence. No‑one, including the plaintiff, saw the plaintiff's motor cycle collide with the pipe which was found on Marmion Street after the accident. If the plaintiff's motor cycle did collide with that pipe, there is no evidence about how much of the pipe was on Marmion Street or where or how it was positioned on Marmion Street immediately prior to the collision. Acknowledging the agreed facts, there is no evidence about how long the pipe, or part of it, had been on Marmion Street prior to the collision. There is no evidence about the manner in which the bundle of pipes were left (unsecured) on the verge at 78 Forrest Street. It is not known whether they were left stacked on each other or lying side by side. It is not known whether they were left in a way which might increase any propensity for one or more to roll down the verge. It is not known if they were left lengthways or at right angles to the gradient.
Nor does the evidence disclose how the pipe, if it did come from the bundle of an unknown number of pipes left on the verge at 78 Forrest Street, came to be moved from its original location to the place where the plaintiff's motor cycle is alleged to have collided with it. It is not known whether that occurred as a result of a single event. For example, someone taking the pipe from the bundle and placing it on Marmion Street. It may be that the pipe was moved by a combination of two or more events, one or more involving human intervention and one or more involving natural forces, such as gravity and wind.
It does not follow that the movement of the pipe from the bundle onto Marmion Street must have been entirely the result of some deliberate act by a third party or criminal conduct on the part of some third party. Alternative explanations are available.
There was no suggestion that the first defendant would not be vicariously liable for the conduct of its agent in leaving the bundle of pipes unsecured on the verge at 78 Forrest Street. Indeed, the trial appeared to proceed on the assumption that it would be. Certainly, no argument to the contrary was put.
The pipes were left on the verge at 78 Forrest Street for subsequent use by the second defendant, which was installing them for underground gas reticulation in Cottesloe.
The pipe had an Alinta Gas marking on it, was yellow in colour and similar to other pipes which were being installed in Cottesloe at that time for underground gas reticulation.
It is apparent from the agreed facts that there was a reasonable prospect that the pipes, which were left on the verge at 78 Forrest Street, would not be installed immediately following delivery.
The failure to secure the pipes to each other or to the ground meant that one or more of them could be more easily moved from the bundle than if they were secured in those ways.
The evidence does not disclose why the bundle of pipes was left where it was on the verge at 78 Forrest Street. It may be that it was a point most convenient to the place(s) in which they were to be ultimately installed.
However, what is clear is that the bundle of unsecured pipes was left in a location close to roadways carrying motor vehicle and other traffic. The propensity for one or more of the pipes from the bundle to be moved in some way onto the surrounding roadways was increased by the failure to secure them to each other or to the ground in some way.
The placement of the bundle of pipes on the verge of 78 Forrest Street adjacent to that roadway and the intersection of Forrest and Marmion Streets was deliberate and would or should have been made with knowledge of the proximity of those two streets and that they were open to and carried vehicular traffic during daylight and after nightfall.
It would or should also have been apparent that the surrounding topography was more conducive to one or more of the unsecured pipes from the bundle coming to rest on either Forrest Street or Marmion Street than not, if one more of them were to be sufficiently disturbed and subjected to sufficient human intervention or to sufficient forces of nature, such as wind and gravity. There was no obvious barrier to prevent the movement of one or more of the pipes onto the relevant roadways. The distance to be covered in such a movement was not great.
It should or would also have been apparent to those putting the pipes where they did, on the verge at 78 Forrest Street, that the failure to secure the pipes to one another or to the ground would increase the likelihood of movement by disturbance, including human intervention, than if the pipes were secured in those ways. There was no evidence of any obvious impediment to such disturbance or human intervention.
It should or would have been known that there was a very real prospect that the pipes would not be immediately installed. In other words, they would be left unsecured and exposed to disturbance and movement, by human intervention and natural forces, until such time as they were secured in some way in their location on the verge or installed underground.
If one or more pipes from the bundle was moved and came to rest on either Forrest Street or Marmion Street, it would very likely constitute a hazard to vehicular traffic. The danger presented by one or more of the pipes lying, partly or wholly, on Marmion Street or Forrest Street after nightfall, would be even greater, because they would be less clearly visible than during daylight.
As counsel for the first defendant quite correctly recognised, during the trial, it was reasonably foreseeable that a pipe from the bundle could come to rest on Marmion Street.
The plaintiff lost control of his motor cycle suddenly and 5‑10 metres into Marmion Street, north of its intersection with Forrest Street. There was no challenge to this evidence.
I am asked to infer that the sudden loss of control was due to the plaintiff's motor cycle striking a pipe which was on Marmion Street at about that point and that the pipe came from the bundle of pipes left on the verge at 78 Forrest Street. I am prepared to draw these inferences for the following reasons.
The motor cycle was in good mechanical condition. The loss of control was sudden and the plaintiff's description of the event is consistent with the front wheel of the motor cycle colliding with something, thereby causing the immediate loss of control.
The pipe, which was found in the immediate vicinity on the roadway at Marmion Street immediately after the accident, was the only obstruction consistent with and explaining the sudden loss of control. It had markings on it consistent with being struck by a vehicle of some sort. There was no evidence of any other hazardous object on Marmion Street, which could have caused the sudden loss of control.
The proximity of the bundle of unsecured pipes, which was similar to the pipe found on the roadway, on the verge at 78 Forrest Street, and the absence of any other similar pipes in the vicinity, makes it highly probable that the pipe which was found on Marmion Street after the accident came from the bundle of unsecured pipes on the verge at 78 Forrest Street.

In these circumstances, I am prepared to and do find that the plaintiff's sudden loss of control of his motor cycle was caused when its front wheel collided with a pipe, which had come from the bundle of pipes at 78 Forrest Street and had somehow been moved so as to come to rest in the plaintiff's path of travel on Marmion Street.
As previously indicated, there is no evidence about how much of the pipe was on Marmion Street, where it was on Marmion Street or the way in which it was positioned on Marmion Street prior to the collision.
The plaintiff did not see the pipe before his motor cycle collided with it. Although the headlight on the plaintiff's motor cycle was illuminated, it was also fixed in position on the motor cycle, so that it did not rotate with the front wheel of the motor cycle when it was turned from the straight ahead position. On the plaintiff's evidence, the headlight on his motor cycle did not illuminate enough of Marmion Street to make the presence of the pipe on the roadway visible. Being unaware of the danger posed by the presence of the pipe on Marmion Street, the plaintiff was not in a position to take any steps to avoid the collision and, not surprisingly, did not do so.
There is no evidence about the precise movements of the pipe, the motor cycle or the plaintiff immediately after the collision, other than what may be gleaned from their particular locations, namely, that the pipe was south of the plaintiff and his motor cycle and the plaintiff's motor cycle was 5‑7 metres further north on Marmion Street from where the plaintiff came to rest.
In the circumstances, it should not be assumed that the location of the pipe on the roadway immediately after the collision accurately represents its location on the roadway immediately prior to the collision. All that can be said about the pipe is that it was positioned in such a way as to be an obstruction on the roadway for the plaintiff and his motor cycle and was enough of an obstruction to generate sufficient forces to cause the plaintiff's sudden loss of control over his motor cycle and the sequelae of that sudden loss of control.
On the evidence, I can make no finding about how long the pipe had been in the position it was in on Marmion Street before the plaintiff's motor cycle collided with it.
Nor does the state of the evidence allow me to make any finding about how the pipe came to be moved from its original location, as one of the bundle of unsecured pipes, on the verge at 78 Forrest Street to its immediate pre-accident location on Marmion Street. It may have been moved as the result of one or more events, involving only human intervention or only the forces of nature or a combination of them. To attempt to reconstruct that movement now would be merely speculative.
However, I am prepared to and do conclude that the placement of the pipe as one of a bundle of unsecured pipes on the verge of the roadway adjacent to Forrest Street and Marmion Street and generally uphill from both and their intersection made the movement of the pipe onto Marmion Street, at about the point of the collision, something which was reasonably foreseeable.
The deliberate act of placing the unsecured bundle of pipes on the verge at 78 Forrest Street must also, in my view, result in the conclusion that the plaintiff, being a person controlling a vehicle on Marmion Street, is one of a class of persons who would be both so closely and directly affected by the first defendant's act that it should reasonably have had them in its contemplation as being so affected when directing its mind to the placement of the unsecured bundle of pipes on the verge as 78 Forrest Street. In short, it gave rise to a duty of care owed by the latter to the former to take reasonable care to avoid a foreseeable risk of injury to road users, such as the plaintiff, namely, the risk of one or more of the pipes moving or being moved onto and coming to rest on one or more of the adjacent roadways. The risk could have been avoided by securing the pipes in one of the ways alleged. It was the propensity of an unsecured cylinder to roll which needed to be controlled. Controlling that propensity for one or more of the pipes to roll in the manner alleged, by securing them to each other or to the ground, would have been a relatively simple and inexpensive way of preventing that from occurring. Such a conclusion reflects both practicality and common sense. The conduct of the first defendant in placing the unsecured bundle of pipes where it did was, in my view, conduct of a kind which was fraught with an unreasonable risk of danger to others, such as the plaintiff.
As I have indicated, the decision by the first defendant to allow the pipes, which were placed on the verge at 78 Forrest Street, to remain there unsecured in any way, when it would have been a relatively simple, inexpensive and effective means of preventing the movement of any pipes from that location to secure them to each other or to the ground, was a failure by the first defendant to take reasonable care to avoid a foreseeable risk of injury.
The failure to secure the pipes in the bundle in any way meant that any one or more of them could more easily be moved from that location to some other location, such as the adjoining roadways, as a result of human intervention, natural forces or a combination of both.
Once on the roadway, a pipe of the kind with which the plaintiff collided on his motor cycle would present a very real risk of injury to a user of the adjacent roadways, such as the plaintiff, particularly after nightfall when the pipe would not be as obvious a danger as during daylight hours.
In the circumstances, I am satisfied the first defendant breached its duty of care to the plaintiff.
I am also prepared to conclude, on the evidence, that the failure to secure the bundle of pipes in the manner particularised at the location at which they were left was what caused the pipe to come to rest where it did on Marmion Street, and thereby present a danger to road users, such as the plaintiff, on his motor cycle. It was also what caused the plaintiff's accident and any resultant loss and damage (March v E & M H Stramare Pty Ltd (1991) 171 CLR 506).
It will be evident from my findings to this point that I have concluded that the facts necessary to establish a duty of care, its content, its breach and that the breach caused the loss and damage claimed have been pleaded, agreed or assumed in the conduct of the case. I am not satisfied that there is any fatal deficiency in the way in which the plaintiff's case has been pleaded or conducted. Accordingly, I do not accept the first defendant's submission that the plaintiff's case should fail, because it has failed to plead a proper case in negligence against the first defendant.

Contributory negligence

The evidence that the plaintiff slowed his motor cycle when travelling west on Forrest Street approaching its intersection with Marmion Street, to allow an oncoming motor vehicle to pass him by, was not contradicted by any other evidence. In the circumstances, I am prepared to accept it.
After the motor vehicle had passed, the plaintiff began to turn his motor cycle right into Marmion Street, before heading north on Marmion Street. He was only 5‑10 metres into Marmion Street when he lost control of his motor cycle. As there was no evidence to contradict the plaintiff's account of his position in Marmion Street, when he suddenly lost control of his motor cycle, I accept his evidence on that aspect as well.
At trial, he estimated the speed of his motor cycle at the time of the collision with the pipe as being about 30 kilometres per hour. There is evidence that he had previously estimated his speed to be between 40 and 50 kilometres per hour. He confirmed that he was not looking at his speedometer immediately prior to losing control of his motor cycle. In the circumstances, his estimates of speed should be treated with circumspection. They can only have been estimates and should be treated accordingly.
More important, in my view, is the fact that he slowed his motor cycle to allow an oncoming vehicle to pass him on Forrest Street and then had ridden only 5‑10 metres into Marmion Street before the accident occurred. His description is more consistent with his motor cycle travelling at a relatively low speed at the time of the accident, rather than travelling at a speed which was unsafe in the circumstances.
For these reasons, I am not satisfied that the plaintiff rode his motor cycle at a speed which was unsafe in the circumstances.
It is also alleged against the plaintiff that he failed to keep any or any adequate lookout as to where he was riding his motor cycle. It is clear that the plaintiff did not see the pipe prior to the collision. At the time of the accident the lighting in the vicinity was dull. Night had fallen. The plaintiff's motor cycle had a fixed headlight, which did not turn with the steering wheel when it was being turned from the straight ahead position. As I have previously indicated, I accept the plaintiff's evidence that the sudden loss of control occurred 5‑10 metres from the intersection on Marmion Street. He was executing a right hand turn on his motor cycle shortly before the collision. He had only travelled a very short distance into Marmion Street. Not knowing the position of the pipe on Marmion Street prior to the collision, it is difficult to know whether it would have been illuminated by the headlight on the motor cycle prior to the collision and if so, for how long. The plaintiff's evidence is to the effect that he was unaware of it. In the circumstances, I am not prepared to conclude that the plaintiff's failure to see the pipe on Marmion Street prior to his motor cycle colliding with it and him suddenly losing control of his motor cycle was because he failed to keep any lookout or any adequate lookout as to where he was riding his motor cycle.
No reliable conclusion can be drawn about the visibility of the pipe prior to the accident, from its visibility after the accident. It may have been in a different position. The plaintiff's attention was specifically drawn to it after the collision. The plaintiff was stationary at that time.
There is nothing in the evidence to indicate that the plaintiff did not act as a reasonable and prudent man (Commissioner of Railways v Ruprecht (1979) 142 CLR 563). On the evidence, any failure on his part would be more properly characterised as mere thoughtlessness or inadvertence, not contributory negligence (Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 and McLean v Tedman(1984) 155 CLR 306).
The plaintiff's failure to see the pipe on Marmion Street before his motor cycle collided with it is not in itself evidence demonstrating contributory negligence on his part. The first defendant bears the onus of satisfying me that the plaintiff failed to keep any or any adequate lookout as to where he was riding his motor cycle. It has not discharged that onus.
The general allegation that the plaintiff was contributorily negligent in failing to take any or any adequate care riding his motor cycle was not further particularised. Nor was the allegation further developed in the course of the trial. There is nothing in the evidence to indicate that the plaintiff failed to take any or any adequate care when riding his motor cycle from Forrest Street into and on Marmion Street. In the circumstances, the allegation is not made out.
For all of these reasons, I am not prepared to conclude that the plaintiff was contributorily negligent. Accordingly, I find there was no contributory negligence on the part of the plaintiff.

Assessment of loss and damage

The parties were able to agree a number of the items of claimed loss and damage.
The plaintiff's claims in respect of the following items were agreed in the following sums:
Past travelling expenses  $259.50
Future travelling expenses  $100.00
Past treatment expenses  $7,391.90
Past and future pharmaceutical expenses                $300.00
Future consultations with the plaintiff's general
medical practitioners  $200.00
Future consultations with the plaintiff's specialist
medical practitioners  $500.00
Property damage  $2,881.00
Consequently, the items of loss and damage requiring assessment are general damages, past loss of income, loss of future earning capacity, past and future gratuitous services and future treatment, being yoga sessions and surgery.
The rate of $30 was agreed as the cost of a yoga session and a rate of $15 per hour was agreed for the purpose of calculating gratuitous services.

General damages

The accident involved a significant degree of force and violence. Therefore, it is not surprising that the plaintiff should suffer some significant injuries when he fell from his motor cycle onto Marmion Street.
The plaintiff's injuries were a comminuted displaced fracture of the mid‑shaft of the left clavicle and a small postero‑lateral fragment of the left clavicle at the acromio‑clavicular joint, a left sided brachial plexus injury, which included temporary damage to the left supra‑scapular nerve and an associated injury to the C6 nerve root, either adjacent to the cervical spine or in its passage through the posterior triangle or behind the fractured clavicle, a frozen left shoulder, a mild closed head injury and grazes to the left shoulder, knee and hip. The injuries to the plaintiff were moderately severe, painful and for some time significantly disabling.
It was three to four months before the plaintiff was well enough to undertake much in the way of physical activity. During the first three weeks of that period, his left arm and shoulder were immobilised by the use of a left arm sling. After that, he received physiotherapy and exercises to mobilise his left arm and shoulder. During the first four months after the accident, he also used pain‑killing and anti‑inflammatory medication for his injuries, in increasing quantities, before deciding to stop using those medications and learning to put up with the pain and discomfort. His grazes were treated with dressings. During that same time he returned to Fremantle Hospital as an outpatient, still suffering pain and a feeling of general weakness in his left arm and shoulder.
During the same period, the plaintiff was getting help from his friends with household duties such as cooking, cleaning, washing and hanging out his laundry. His friends also assisted him by driving him to and from the chemist, physiotherapy and medical appointments.
The plaintiff's injuries also restricted him significantly in his ability to engage in his pre‑accident pastimes of swimming, sailing, surfing, running and mountain bike riding. He had tried to resume most, and been able to resume some, of these activities, albeit it with some limitations, by March 2003. The plaintiff does not now swim, run, sail or mountain bike ride to the same extent as he did prior to the accident, because he now lacks the physical ability to do so.
The plaintiff's injuries have also left him with some residual physical disabilities. They include some tightness across the area of his fractured clavicle where there is a pronounced bony mass, some numbness of approximately a hand's width on either side of the fracture site of his left clavicle on the chest wall, a tingling sensation and numbness along an arc from the inside of his left index finger to the inside of his left thumb, a general weakness in his left arm, difficulty sleeping on his left side because of discomfort, a visible scar on the left lateral side of his neck which is curved and runs down and along his left clavicle measuring 230 millimetres and a pale dramatic scar just above the left iliac crest measuring 30 millimetres by 10 millimetres. Neither scar is tender to touch.
The plaintiff's injuries and their sequelae impacted significantly on the plaintiff's physical abilities, including not just his ability to return to the fit and active lifestyle he led prior to the accident, but also his ability to interact with his son during scheduled access.
I am not satisfied that the plaintiff sustained a cervical sprain in the accident, which was superimposed on pre‑existing degenerative changes in his neck and leaving him with stiffness in the neck, primarily because there is no evidence that he complained of any such injury or symptoms about his neck immediately following the accident. If it was caused by the accident, it is likely it would have been symptomatic at or about that time. Furthermore, the plaintiff confirmed in cross‑examination that the symptoms in his neck were new and had not been the subject of any complaint to a medical practitioner prior to February 2005.
I accept that the plaintiff also genuinely perceives his body to be twisted and perceives that his left shoulder is lower than his right, as a result of the injuries he suffered in the accident. However, having observed him for some time in the witness box when giving his evidence, I was unable to discern any obvious signs of twisting of his body. Nor was I able to discern any obvious signs that his left shoulder was lower than his right. Any real discrepancy in shoulder height from the photographs of the plaintiff's shoulders (exhibit P7) was not marked. My observations in these respects were confirmed by the evidence of Mr Kagi, who noted no such twisting in the plaintiff's body, nor any discrepancy in shoulder heights.
In the circumstances, I would make an award for general damages in the sum of $40,000.

Past loss of income

I accept the evidence which the plaintiff gave about his work history prior to the accident and from the date of the accident to the present as an accurate and truthful account of those matters.
I am satisfied that the plaintiff was totally incapacitated for work until approximately August 2001. I note Mr Kagi's evidence that the plaintiff would not have been fit for light duties until approximately November 2001. Mr Kagi also gave evidence that the plaintiff would be fit for full time light duties from February 2002. It would appear from the evidence that the plaintiff considered himself fit to resume work at the earlier time of August 2001.
In exhibit P8, there are two income tax returns for each of the financial years ending 30 June 2002 and 30 June 2003. In each of those years, an income tax return was submitted in which the plaintiff's earnings from the business B J Fruitiers was not declared. The plaintiff was cross‑examined by counsel for the first defendant as to why he had submitted returns without declaring that income and later submitted corrected returns for each of those financial years declaring his income from B J Fruitiers. It was put to him, in effect, that the returns were corrected for the purpose of inflating his claim for damages. The plaintiff explained that he submitted the original income tax returns for each of those years on the understanding which he had at that time, namely, that he had earned insufficient income from the business of B J Fruitiers to require it to be declared. That misconception was later corrected and that was the reason for the subsequent income tax returns declaring the income from B J Fruitiers in each of those financial years. Having regard to my assessment of the plaintiff's credibility as a witness, in particular the manner in which he answered the questions put to him in cross‑examination on these income tax returns, I am satisfied that he genuinely, but mistakenly, held the belief at the time of submitting the original income tax returns for each of these financial years that he was not required to declare the income he had earned from B J Fruitiers.
Apart from a period in his early working life, when he appears to have engaged in work requiring a degree of manual labour, the vast bulk of the plaintiff's working life has not required him to perform work which could be described as generally heavy or physically demanding. On the contrary, it would appear that the vast bulk of his work experience has been largely managerial and administrative in nature.

Although the work in which he has been engaged since the accident has required some manual labour on his part, the preponderance of it again appears to be largely managerial, administrative or sales type work. His work in the fruit industry was largely sedentary in nature, although some manual work was required. He left a job in that industry when it was apparent to him that managerial and sales type work would no longer be available to him. His work in the fishmongering business suits him. It does involve some manual work. It also involves some managerial and sales type work. The manual work is within his physical capabilities. Indeed, it would appear it does not require a lot of physical exertion.
On the evidence, it would appear that the plaintiff is well suited to sedentary work, particularly work with a managerial, administrative or sales focus. His work history demonstrates a pre‑disposition to this type of work. Leaving to one side, for the moment, the plaintiff's evidence about his intentions to obtain employment as a yacht master, his pre‑disposition to sedentary work with a managerial, administrative or sales focus was confirmed by his evidence to that effect and the type of work that he has been doing since the accident.
Nonetheless, it is clear from the evidence, including the evidence of Mr Kagi, that the plaintiff's parameters of employment have been reduced. He can no longer engage in work that is heavy or physically demanding. However, it is also the case that he has not engaged in such work since the accident and had not engaged in such work for some time prior to the accident.
The plaintiff's claim for past loss of income is for $114,600. That sum is calculated on the basis that the plaintiff was totally incapacitated for work until approximately August 2001, when he commenced employment as a fruit wholesaler. He contends that he would have worked as the master of a vessel from about February 2000 to the present and for the foreseeable future, were it not for the injuries suffered by him in the accident. He has claimed that he would have earned $1,000 gross per week from February 2000 to March 2005 were it not for the accident. The plaintiff uses the nett sum of $710 per week for that period of 260 weeks to arrive at the sum of $184,600. From that sum the plaintiff deducts his actual earnings, from his own personal exertion, for that period, which he maintains are no more than $70,000 nett.
The success of the plaintiff's case that he would have earned $1,000 gross per week and $710 nett per week from February 2000 to March 2005 as a yacht master is dependent on him discharging the onus on a number of matters.
First, to obtain gainful employment as a yacht master, it would appear, from the evidence, to be necessary for the plaintiff to obtain the Australian Yachting Federation yacht master qualification TL4. I am satisfied that the plaintiff would have completed the course, but for the physical limitations imposed on him by the injuries he suffered in the accident.
Secondly, it is necessary for the plaintiff to satisfy me that had he obtained the qualification he would have travelled to New Zealand for the America's Cup, where he would have made the necessary contacts and obtained employment so as to earn a living as a yacht master. Whilst I am satisfied that the plaintiff would have travelled to New Zealand at or about the time of the America's Cup had he obtained the qualification, with a view to making the necessary contacts and obtaining gainful employment as a yacht master, I am not satisfied, on the evidence, that he would either have made the necessary contacts or obtained gainful employment as a yacht master.
Finally, it would be necessary for the plaintiff to satisfy me that as a yacht master he would have earned the weekly sum claimed, namely, $710 nett. Underpinning his claim for that amount is the evidence of his brother, Gary Phillip James, which was comprised solely of two letters, being exhibits P9 and P20. Again, for reasons which I will shortly outline, I am not satisfied that the plaintiff would have earned $710 nett per week, even if he was able to obtain employment as a yacht master.
I am not satisfied that the plaintiff, had he obtained the yacht master qualification and travelled to New Zealand at the time of the America's Cup, would have obtained gainful employment as a yacht master for a number of reasons.
First, I do not know how much of that type of work was available at that time, how it would or could have been obtained, what was required of an aspirant to obtain it, what terms and conditions would have applied to it were it obtained or whether the plaintiff would have had the qualities required to obtain it. There is no evidence about any of these matters, on which I can safely rely, to make any findings about the plaintiff's prospects of obtaining such employment.
Secondly, it is apparent from the evidence of the plaintiff's brother, that the plaintiff's qualifications are not equivalent to his brother's qualifications. His brother appears to have upgraded his qualifications in 2003. I do not know from the evidence if the same opportunity would have been available to the plaintiff or whether the plaintiff would have been able to avail himself of such an opportunity were it available. As the plaintiff's brother has stated in his letter dated 3 March 2005, his income of $A7,000 per month has only come about by the courses and work experience he has done over the last five years. I cannot be satisfied on the evidence before me that the plaintiff would have acquired the same work experience or qualifications as his brother. To find that the plaintiff would have obtained gainful employment as a yacht master, equivalent to that which was obtained by his brother in New Zealand at the time of the America's Cup, and would have continued to be so gainfully employed, in the same way as his brother, since that time, would be little more than speculation on the evidence which has been led about these matters.
There was also no other evidence about what work would have been available to the plaintiff, how likely he might have been able to obtain it and what remuneration could be derived from that work, had the plaintiff obtained his yacht master qualification and looked for work of that kind other than in New Zealand at the time of the America's Cup.
In all the circumstances, I am not satisfied that it is appropriate to infer that the plaintiff would have obtained similar employment to his brother and been remunerated at the same level had he completed his yacht master qualification and travelled to New Zealand to seek work as a yacht master, or sought similar work elsewhere.
The first defendant's counsel also submitted that as of March 2003, the plaintiff could have completed his yacht master qualification and sought and obtained work as a yacht master had he wanted to do so. In other words, that his opportunity to obtain that type of work had merely been delayed, not lost.
The plaintiff's evidence that he had attempted sailing on a couple of occasions since the accident and found it difficult suggests that he may not be capable of working as a yacht master. However, there is no evidence from which I can safely conclude what the physical requirements would be for a yacht master to be able to successfully execute his duties and responsibilities. It may be that the physical capabilities required of a yacht master depend on the size and nature of the vessel and its crew. I simply do not know. It may be there are minimum physical requirements to fulfil the position. Again, as there was no reliable evidence about these matters, I simply do not know. In the circumstances, I am left in the position of not knowing whether the plaintiff could perform the work of a yacht master or not.
Therefore, even if I were satisfied that there was and would be work available to the plaintiff had he obtained his yacht master qualification or were he to do so at some time in the future, I simply do not know whether he could discharge the physical requirements of the yacht master's position or not. The evidence in this respect was quite unsatisfactory.
In all of the circumstances, it is not appropriate for me to assess the plaintiff's past loss of income on the premise that he would have completed his yacht master qualification and obtained work as a yacht master, were it not for the injuries suffered by him in the accident. Even if the premise was proven, the state of the evidence would not permit me to make any reliable assessment of any such losses.
However, I am satisfied that from approximately August 2001, when the plaintiff commenced employment as a fruit wholesaler, he had the capacity to undertake the same type of work that he was doing when employed by P C James & Co Pty Ltd, namely, sedentary work of a managerial or administrative type. I make no allowance for past loss of income after that date. The plaintiff's income was determined by the work he chose to do, rather than the work he was able to do.
In the financial year ending 30 June 1996, the plaintiff's taxable income as a manager of P C James & Co Pty Ltd was $49,266. I have assumed that to be representative of the plaintiff's earning capacity as a manager at that time. Using that as a basis for calculation and making some allowance for an increase in earnings in that type of work, the nett sum of $710 per week claimed by the plaintiff is not altogether unreasonable as a figure representing the nett weekly loss. The period from the end of November 1999 until August 2001 is a period of approximately 91 weeks. Using the nett rate of $710 per week as the nett weekly loss for that period, results in a figure of $64,610. In my view, this figure more accurately represents the plaintiff's past loss of income. I would in addition to this sum, make an allowance for interest on past loss of income, using the rate claimed by the plaintiff, namely, 4 per cent per annum. Using that rate would result in a figure for interest on past loss of income of $11,371.35.

Loss of future earning capacity

The plaintiff's parameters of employment have clearly been reduced. By reason of the injuries suffered by him in the accident and his residual disabilities, the plaintiff has lost the capacity to engage in heavy or physically demanding work.
Apart from a period very early in his working life when he appears to have engaged in some work of that kind, his work history from well before the accident and since is much more consistent with him being capable of and choosing to undertake sedentary work with a managerial, administrative or sales focus. His most recent work as a fishmonger, although it does involve some manual work, is apparently within his physical capabilities.
Nonetheless, it is appropriate to make some award for the reduction in his parameters of employment. There is some prospect that he would have undertaken heavy or physically demanding work, but the prospect would appear to have been and remains small.
There is no evidence about what his earnings might be if he chose to undertake employment involving heavy or physically demanding work. It may be more or less than what he is presently capable of earning. Again, there was a dearth of evidence in this respect.
In all of the circumstances and doing the best I can on the evidence before me, such as it is, I would make a global award, allowing for the usual contingencies, for the loss of parameters of employment in the sum of $10,000.

Future surgery expenses

It appears that the plaintiff's left clavicle has now re‑united, but the plate which was inserted to assist the union has broken and needs to be removed. On the evidence, the likely cost of the surgery and the likely associated costs amount to $4,166. On the evidence, that surgery will need to occur at some time in the future. It will involve an operation to remove the plate and screws from the left clavicle region, it will require a general anaesthetic, two days in hospital and will result in total unfitness for work for about one month and the prescription of analgesic medication throughout that period. Accordingly, I make an award of $4,166 for the costs of the future surgery to remove the plate and screws and the costs associated with that surgery.

Past gratuitous services

I accept that it was three to four months before the plaintiff was well enough to undertake much in the way of physical activities. I also accept that in that time he received about 10 hours per week of assistance for four months from his friends in attending to household duties, such as cleaning, cooking, washing and hanging out the washing. Furthermore, I accept that his friends also assisted him by driving him to and from the chemist, therapy and medical appointments. Using the agreed rate of $15 per hour, I would make an allowance of $2,700 for past gratuitous services. The plaintiff makes no claim for interest on this amount.

Future gratuitous services

Mr Kagi considers the plaintiff will be totally unfit for about one month following the surgery to remove the plate and screws from his left clavicle region. The plaintiff claims $3,600 for gratuitous services following that operation. Assuming a similar rate of $15 per hour, there being no other rate put forward, that would translate to a claim by the plaintiff for 24 weeks of gratuitous services on the basis of 10 hours per week.
There is little or no evidence about the precise nature and extent of the plaintiff's likely level of physical disability after his surgery, whether the plaintiff would require gratuitous services following the surgery, for how long he would require gratuitous services and for how many hours per week.
The plaintiff required gratuitous services for 10 hours per week for four months after the accident. I am not satisfied, on the evidence, that there will be a need for 10 hours of gratuitous services per week for 24 weeks following this surgery. It does not seem that the plaintiff will be as disabled as he was after the last surgery. For example, his left clavicle will not be re‑fractured and need to mend.
Doing the best I can with the evidence available and perhaps erring on the side of caution, I am prepared to allow two months for future gratuitous services, calculated on the basis of 10 hours per week at a rate of $15 per hour, following the surgery. I do so relying on Mr Kagi's evidence that the plaintiff will be totally unfit for about one month and the plaintiff's evidence about his earlier period of four months' incapacity immediately after the accident. Doing the best I can, on the evidence, I have assumed that he will be partially unfit for a further month. On that basis I would allow $1,350 for future gratuitous services.

Future yoga expenses

About 18 months after the accident, the plaintiff took up yoga as a form of therapy for his injuries and their sequelae. Relying on the evidence of Mr Kagi, I accept that the yoga is an appropriate form of treatment for the plaintiff's injuries and their sequelae. I find that the plaintiff will require therapy, which would include yoga, for up to 20 times a year. The plaintiff's claim is for 20 such sessions per year for the next 15 years. The need seems to be ongoing. Therefore, I accept the period of 15 years as a reasonable estimate of the future need. Using the agreed rate of $30 per session and the multiplier of 521.8, I would make an allowance of $6,020 for future yoga requirements.

Summary

In summary, I find the plaintiff's claim against the first defendant proven, make no finding of contributory negligence and award the plaintiff damages of $151,849.75, made up in the following manner:
General damages  $40,000.00
Past travelling expenses  $259.50
Future travelling expenses  $100.00
Past treatment expenses  $7,391.90
Past and future pharmaceutical expenses  $300.00
Future consultations with the plaintiff's general
medical practitioners  $200.00
Future consultations with the plaintiff's specialist
medical practitioners  $500.00
Past loss of income  $64,610.00
Interest on past loss of income  $11,371.35
Loss of future earning capacity  $10,000.00
Future surgery expenses  $4,166.00
Past gratuitous services  $2,700.00
Future gratuitous services  $1,350.00
Future yoga expenses  $6,020.00
Property damage  $2,881.00
Total$151,849.75