Johns v Cosgrove

[1997] QSC 229

IN THE SUPREME COURT

OF QUEENSLAND

No. 599 of 1993
[Johns v Cosgrove & Ors]

BETWEEN:
  DALLAS MIDGLEY JOHNS
  Plaintiff
AND:
  JENNIFER MARGARET COSGROVE
  Defendant
AND:
  CHEVRON QUEENSLAND LTD
  (In Liquidation)  Second Defendant
AND:
  RODNEY SIDNEY MACHIN
  Third Defendant
AND:
  DIANNE HELEN LEWIS
  Fourth Defendant
AND:
  THEODORE HARVEY LEWIS
  Fifth Defendant
AND:
  PETER FINN
  Sixth Defendant

JUDGMENT  -  DERRINGTON J

Judgment delivered      12 December 1997

CATCHWORDS:     

Counsel:

Solicitors:        

Hearing dates:  
IN THE SUPREME COURT

OF QUEENSLAND
  No. 599 of 1993

[Johns v Cosgrove & Ors]

BETWEEN:
  DALLAS MIDGLEY JOHNS
  Plaintiff

AND:
  JENNIFER MARGARET COSGROVE
  Defendant
AND:
  CHEVRON QUEENSLAND LTD
  (In Liquidation)  Second Defendant
AND:
  RODNEY SIDNEY MACHIN
  Third Defendant
AND:
  DIANNE HELEN LEWIS
  Fourth Defendant
AND:
  THEODORE HARVEY LEWIS
  Fifth Defendant
AND:
  PETER FINN
  Sixth Defendant

JUDGMENT  -  DERRINGTON J

Judgment delivered 12 December 1997

The plaintiff was born on 3 June 1961 so that at the date of the accident on 24 April 1990 he was approaching 29 years of age and is now 36 years.  At about 10.30 p.m. on the date of the accident he was grossly intoxicated with a blood alcohol level that was measured shortly afterwards at .332.  He was standing at a bus-stop at Ferny Avenue, Surfers Paradise a little to the north of its intersection with Cavill Avenue and across the road from the rear of the then location of the Chevron Hotel.  It seems that he then moved rapidly onto the roadway and was struck by a vehicle driven by the First Defendant.

In that place, Ferny Avenue consists of four lanes, all north-bound, though only three of them were available to moving traffic, that on the left being a bus lane or a parking lane and somewhat narrower than the others.

The road was the north-bound section of the arterial road running through Surfers Paradise.  At that hour of the night it was relatively quiet but there was still a moderate volume of traffic.  At the time of the accident there was only one vehicle other than that of the First Defendant in the immediate area.

The plaintiff had been drinking at the Second Defendant’s Chevron Hotel in the Long Bar from late in the afternoon until closing time.  He had gone there to drink heavily and to become intoxicated in accordance with his usual habit and, again in accordance with his usual habit, on leaving the hotel he had found his way to traffic lights on Ferny Avenue and crossed safely at a pedestrian crossing there and moved to the bus-stop where he intended to catch a bus home.  His usual practice was known to at least some of the hotel’s staff.

The first defendant was driving her motor car northwards at a speed of about 50 to 55 kilometres per hour.  She saw the plaintiff swaying and holding onto the bus-stop sign-post with both hands, and she recognised that he was drunk.  She then averted her eyes towards the front to watch where she was driving and did not see him again until in the corner of her eye she caught sight of a movement.  She then saw that it was the plaintiff’s arms waving and he appeared to her to be moving in the air as though in the process of a jump.  He landed a few centimetres in front of the centre of her front bumper-bar in an upright position and was almost immediately struck.  He slid up the car’s bonnet and struck the windscreen on the driver’s side, shattering it;  and then he slid off and rolled forwards and to the first defendant’s right-hand side, finishing in the right-hand lane of the roadway. 

In cross-examination, the first defendant seemed to say that the plaintiff stopped dead where he landed, and this is taken to mean that he had no forward momentum;  but there appeared to be some confusion upon this, at least in the witnesses’ mind, and it is likely that she meant that there was in fact no forward movement, the reason being that he was struck almost immediately on landing.  Although it is not possible to give a cause and effect relationship to them, the plaintiff’s direction of travel along the bonnet of the car and then across the road was consistent with momentum from his earlier movement.  On all the evidence it is very unlikely that he was stationary when he was struck.  It is also unlikely that the jumped.  The probable explanation is that he lurched onto the roadway rapidly as the result of losing his balance. 

The accident was witnessed by Mr and Mrs Soire from their vehicle.  It was towing a boat-trailer in the centre trafficable lane not far behind the first defendant’s vehicle, which had slowly passed them a short distance before.  Both of them saw the plaintiff standing on the footpath waving his arms and tottering, and then ceased to watch him further because, like the first defendant, they did not foresee any danger from that source, particularly as they were a further lane’s width removed from him.  As with the first defendant, they too were wrong.  Had he not been struck by the first defendant’s vehicle, there is a strong likelihood that he would have been struck by theirs.

He would have taken about two seconds after leaving the kerb before reaching the spot where he was struck about 4.5 metres away.  It is likely that after the first defendant averted her gaze from him, he released his hold on the post, had difficulty retaining his balance, which was his state when he was seen by Mr and Mrs Soire, and then lurched to the point where he was struck. 

If when she first saw him the first defendant had slowed her vehicle appreciably and had kept a reasonable look-out for any such unexpected movement that his obviously heavy intoxication might produce, she should have had time to avoid colliding with him either by swerving or braking or both.  Because she failed to take this precaution, she was closer to him when he moved onto the roadway and as a result she had no opportunity to avoid him by those means.  Her fault then consisted only in wrongly assuming that he could not and would not release his hold on the post and stagger into her path either from loss of balance or for some irrational reason.  However, this is somewhat attenuated because his hold on the post and stationary position would have given somewhat less indication of danger than if he were mobile.

The plaintiff was grossly at fault in deliberately becoming heavily intoxicated knowing that he would then take himself in that state into the vicinity of such a busy thoroughfare, and he must pay for that in the way of a deduction of his damages for contributory negligence:  Kilminster v Rule 32 SASR 39; McPherson v Whitfield [1996] 1 Qd R 474. However the law does not relieve drivers of motor-vehicles from all duty of care to avoid injuring vulnerable persons such as children or intoxicated persons when that person’s abnormal condition is clearly visible and the danger reasonably foreseeable at a time when the motorist can avoid it by prudent precautions: Cotton v Commissioner for Road Transport and Tramways (1942) SR(NSW) 66, 68-69. This does not apply if the motorist had no reason to foresee the pedestrian’s abnormal behaviour: Trompp v Liddel (1941) 41 SR(NSW) 108, but it is not a question whether the movement was unexpected but rather whether its possibility was reasonably foreseeable.

Because of the gravity of the damage that may be inflicted upon a pedestrian by a motor-car, its driver is required to take appropriately higher precautions to avoid injury to others, even to those who place themselves in a position of danger through irresponsibility such as drunkenness or skylarking or even serious negligence:  cf Teubner v Humble (1963) 108 CLR 491; Kilminster v Rule (supra) at 46. It would not however apply to the case of an ordinary pedestrian who shows no sign of irrational behaviour nor to one whose presence cannot be observed until too late: cf Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. In the comparative attribution of fault, the capacity to inflict injury through the motor-vehicle is so weighted that, on the comparative scale, it elevates the liability of a driver whose fault may be small in comparing it with the more irresponsible behaviour of the victim. This is a principle of legal liability rather than one of moral responsibility, and it runs through all the pedestrian cases. The relative apportionment will depend on the circumstances of the particular case.

Before there is any apportionment of liability, it is necessary to consider the allegation of negligence against the second defendant which owned and controlled the Chevron Hotel.  Its bar staff continued to serve the plaintiff until he reached the state of intoxication described above.  For some time before he left the hotel, he must have been patently affected by his intoxication and yet he was supplied with liquor to the degree revealed by his blood alcohol level. 

There was no direct evidence that he remained at the hotel until shortly prior to the accident, but this is strongly inferred from the circumstantial evidence.  He was seen there over a period of some hours and about two hours before the accident, he was plainly in a befuddled state.  In such circumstances it was his habit to continue to drink at the hotel until closing time and to go from there to the bus-stop where the accident occurred.  He was not in the habit of drinking at other hotels in that area, and it is unlikely that he went a night-club on that evening.

There was conflicting evidence as to the policy of the hotel in respect of supply of alcohol to intoxicated customers.  On all the evidence such customers were supplied, the only disparity in the evidence being the degree of intoxication involved before refusal to serve.  A former employee claimed that the benchmark was only rudeness or abuse or disturbance of other customers by the customer.  Another employee said that it was the time when the customer had difficulty picking up change from the counter or was staggering.  The difference is minimal and irrelevant in the present case.  Whatever the rule, the plaintiff was served up to the state of gross intoxication when he was a danger to himself, for it was known to the bar staff that he would then go home by a route that would take him into close proximity to a busy highway. 

Again, the primary responsibility was the plaintiff’s, but, knowing that an intoxicated person would place himself into a position of danger on leaving the hotel, a publican cannot continue to supply him with the means of greater intoxication without regard to the danger to which he is thereby contributing.  While the plaintiff’s fault is enlarged because he deliberately drank intending to become heavily intoxicated, there is some substance to the argument that at a certain stage his judgment as to how far he should go would be impaired.

There are authorities in Australia, England and Canada supporting the principle that a publican must take reasonable care in such circumstances not to contribute to the danger in this way:  Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; Hay v Sheargold (Unrep. NSW S Ct 18.4.96;  Munro v Park Holiday Estates Ltd [1984] TLR 138; Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222, approving Jordan House Ltd v Menow (1973) 38 DLR (3d) 105, which in essential detail was close to the present case in principle. At 111-112 Laskin J said:

“          In the present case, it may be said from one point of view that Menow created a risk of injury to himself by excessive drinking on the night in question.  If the hotel’s only involvement was the supplying of the beer consumed by Menow, it would be difficult to support the imposition of common law liability upon it for injuries suffered by Menow after being shown the door of the hotel and after leaving the hotel.  Other persons on the highway, seeing Menow in an intoxicated condition, would not, by reason of that fact alone, come under any legal duty to steer him to safety, although it might be expected that good Samaritan impulses would move them to offer help.  They would, however, be under a legal duty, as motorists for example, to take reasonable care to avoid hitting him, a duty in which Honsberger failed in this case.  The hotel, however, was not in the position of persons in general who see an intoxicated person who appears to be unable to control his steps.  It was in an invitor-invitee relationship with Menow as one of its patrons, and it was aware, through its employees, of his intoxicated condition, a condition which, on the findings of the trial Judge, it fed in violation of applicable liquor licence and liquor control legislation.  There was a probable risk of personal injury to Menow if he was turned out of the hotel to proceed on foot on a much-travelled highway passing in front of the hotel.

There is, in my opinion, nothing unreasonable in calling upon the hotel in such circumstances to take care to see that Menow is not exposed to injury because of his intoxication.  No inordinate burden would be placed upon it in obliging it to respond to Menow’s need for protection.  A call to the police or a call to his employer immediately come to mind as easily available preventive measures;  or a taxi-cab could be summoned to take him home, or arrangements made to this end with another patron able and willing to do so.  The evidence shows that the hotel had experience with or was sensitive to the occasional need to take care of intoxicated patrons.  The operator had, in other like instances, provided rides.  He also had spare rooms at the time into one of which Menow could have been put.

Given the relationship between Menow and the hotel, the hotel operator’s knowledge of Menow’s propensity to drink and his instruction to his employees not to serve him unless he was accompanied by a responsible person, the fact that Menow was served, not only in breach of this instruction, but as well in breach of statutory injunctions against serving a patron who was apparently in an intoxicated condition, and the fact that the hotel operator was aware that Menow was intoxicated, the proper conclusion is that the hotel came under a duty to Menow to see that he got home safely by taking him under its charge or putting him under the charge of a responsible person, or to see that he was not turned out alone until he was in a reasonably fit condition to look after himself.  There was, in this case, a breach of this duty for which the hotel must respond according to the degree of fault found against it.  The harm that ensued was that which was reasonably foreseeable by reason of what the hotel did (in turning Menow out), and failed to do (in not taking preventive measures).”

It is not negligence merely to serve a person with liquor to the point of intoxication;  but it is so if because of the circumstances it is reasonable foreseeable that to do so would cause danger to the intoxicated party, such as, for example where the intoxication is so gross as to cause incapacity for reasonable self-preservation when it is or should be known that he or she may move into dangerous circumstances, and where no action is taken to avert this.  This is not to impose an excessive burden on publicans if it is fully understood.  In Mayfield Investments Ltd at 232, the Court said:

“          I doubt that any liability can flow from the mere fact that Mayfield may have over-served Pettie.  To hold that over-serving Pettie per se is negligent is to ignore the fact that injury to a class of persons must be foreseeable as a result of the impugned conduct.  I fail to see how the mere fact that an individual is over-imbibing can lead, by itself, to any risk of harm to third parties.  It is only if there is some foreseeable risk of harm to the patron or to a third party that Mayfield and others in their position will be required to take some action.

This standard of care is the second ‘duty’ identified by the respondents and the Court of Appeal.

It is true that applicable liquor control legislation in Alberta, and across the country, prohibits serving alcohol to persons who are apparently intoxicated.  Counsel for the respondents pressed that point in argument.  There are, however, two problems with this argument.  The first is that it is not clear that there was any violation of liquor control legislation in this case, given the fact that Pettie was apparently not exhibiting any signs of intoxication.  Moreover, even if it could be said that Mayfield was in violation of legislation, this fact alone does not ground liability:  Canada v Saskatchewan Wheat Pool (1983), 143 D.L.R. (3d) 9, [1983] 1 S.C.R. 205, 23 C.C.L.T. 121. Without a reasonably foreseeable risk of harm to him or a third party, the fact of overserving Pettie is an innocuous act. Therefore, liability on the part of Mayfield, if it is to be found, must be in their failure to take any affirmative action to prevent the reasonably foreseeable risk to Gillian Stewart.”

The danger would be enlarged if it were known that the intoxicated person would be negotiating dangerous traffic such as would be found where the hotel was situated between two major arterial roads, and his habit of going home unescorted was known.  The second defendant is therefore liable and the only question remaining is the apportionment of responsibility between the various parties.  In this respect, it is true that the plaintiff’s only negligence is to have deliberately become so heavily intoxicated that he could not take care of himself, his other behaviour in lurching onto the roadway being the result of the intoxication rather than of any negligence.  While there should therefore be no doubling of responsibility for the same basic fault, it is still necessary to take into account that when he deliberately became intoxicated he knew that he would be returning home by this route, thereby placing himself in dangerous circumstances where his behaviour of the kind that led to his injury was clearly foreseeable.  There is a heavier responsibility than in the case of inadvertent or unpremeditated intoxication, or where the dangerous consequences would not be so inevitable.

If all of the relevant circumstances are taken into account including those emphasised above, on the principles that are usually applicable in these cases the responsibility should be apportioned to the plaintiff to the extent of forty-five percent, as to the first defendant to the extent of thirty percent and to the second defendant to the extent twenty-five percent.

Damages

Prior to the accident the plaintiff was single, although twenty-nine years of age.  He had had a relationship with a girl which had terminated some months before.  He was a heavy drinker with his friends on about three or four nights a week.  As an excuse for his irresponsibility in relation to his employment, he told his employer that he was drinking heavily as a response to the break-up of his relationship with his girlfriend but as this had happened six months before and he was associating with another woman there is a strong suspicion that he was merely seizing on a feature that might attract sympathy and that he simply liked to drink too much.  On a number of occasions he was markedly late in arriving at work or missed work, all of which caused his employer considerable inconvenience.  After some threats, his employer warned him that he would be automatically dismissed if he were late the next day, and that happened.  Consequently, the plaintiff had been unemployed for several days prior to the accident.

His earlier work history bears some similar features.  With the exception of the period of his last job for some years prior to the accident, he had had a number of different types of jobs, and there were usually many months of each year when he was unemployed.  It is not without significance that during this period he had three convictions for drink-driving.  On one of these occasions, he was in control of a bicycle, but it is his intoxication that is the relevant feature.  Because of his general behaviour before and up to the accident, these earlier indications mean that it cannot be found that he had a sober sense of responsibility towards employment.

In mitigation of this, it must be recognised that he was a single man with no dependents, but at his age, his failure to support himself through work when he could probably have done so for the most part is consistent with some enduring irresponsibility and instability that his association with a woman had not mitigated.  When he did work, it seems that in some respects he could perform well when he was not diverted, and his last employer would probably have re-employed him if and when he had achieved reasonable stability.  However, he was plainly not headed in that direction at the time of the accident.

Before the accident, he was often in conflict with his family.  His mother had remarried when he was young, but his relationships with his stepfather and half-brother were not good and this led to conflict between him and his mother.  This has been exacerbated by his injuries, and perhaps by his mother’s misjudgment of the situation and attempts to control him in some situations where his behaviour is influenced by his head injuries.  There could also well be a desire to control him in respect of his lifestyle of which she does not approve.  This has bred resentment on his part with  responsive conduct compounding his mother’s contribution to the conflict.  At the time of trial, he was residing with his family but this is plainly not successful on any lengthy basis.

There is not much difficulty in identifying his injuries but his residual disability has attracted a serious conflict of evidence, the major point of disagreement being the effects of his head injuries.  Unfortunately, there has been a degree of bias in the evidence of some of the experts led in the plaintiff’s case.

His injuries are described in the hospital report as follows–

1.Head injury - small left frontal subdural haematoma.

2.Fractured left tibia and fibula.

3.Ligamentous injury right knee.

4.Laceration right fronto-temporal region.

There was also a fracture of the seventh cervical vertebra through the spinous process, which healed with callous formation around it.

He is left with a ten to fifteen percent disability of the left leg and a seven to ten percent disability of the right knee, but these do not cause him much trouble unless he puts persistent stress on them.  He should not undertake heavy labouring work.

He has a permanent disability of the neck of three to four percent magnitude.  This is of little consequence except that it may contribute to his headaches, which may be significant and have not been properly investigated or treated.  His reporting as to these has been somewhat inconsistent.

Of the evidence relating to the effects of his head injury, the most reliable and convincing was that of Dr Cameron, a neurologist led for the defence.  He had the benefit of seeing the reports of the witnesses relied on by the plaintiff and searched for but could not find symptoms that were said by the plaintiff’s neurologist to have been present some relatively short period before.  Although it is said that a later examination by the latter virtually on the doorstep of the court was said to reveal those clinical indications again, Dr Cameron’s evidence is far superior and should be accepted.  His approach to his evidence was much more objective and fair.

He acknowledges that the plaintiff suffered serious head injury.  Having seen the plaintiff on 31 July, 1995, he said–

“On the information to hand it would seem that this man did suffer a significant head injury as a result of being struck by a car on the 24 April 1990.  His memory preceding the event appears impaired although this could be partly due to the large quantity of alcohol he had consumed just prior to the event.  His next recall was some three days later.  A head scan demonstrated a small fronto-temporal subdural collection which gradually resolved without treatment.

There is evidence that he did have some brain injury in the immediate phase following the accident.  Apparently he was found to have slurred speech, weakness down the right side of his body and ataxia with memory and high intellect impairment.

I believe this man, however, has made a very good recovery from his injuries.  He is still left with some symptomatic disturbance of higher cortical function.  On simple office testing he performed reasonably well although there is some evidence of mild frontal and temporal lobe disturbance still persisting.

I do not anticipate this man will develop any further problems as a consequence of his injuries.  I believe he will continue to recover over the next 12 months or so and by that time his condition could be regarded as stable.  There is a very small chance he could subsequently develop post-traumatic epilepsy.

With respect to his head injury I believe this man has suffered at this stage a partial impairment of whole person function at around 10%.

I believe he is capable of still working as a labourer with some supervision on a full-time basis. He has shown an interest in growing palms and alovera.  I think he could certainly work in a nursery with some supervision from time to time.

An EEG study was performed and the Report is enclosed.  The study was normal.”

There seems to be little contradiction of the view that the chance of post-traumatic epilepsy is small, since that is now confirmed by the plaintiff’s neurologist.

It should be remarked that Dr Cameron’s opinion is supported by the plaintiff’s own presentation in the witness-box, even with appropriate caution as to the danger that he could present himself better than he actually is.  After allowance for this, careful scrutiny of his performance revealed a good understanding of what was beneficial or otherwise to his case, a reasonably good capacity to express himself, and a moderately good memory.  It also confirmed some clear signs of intellectual deficit such as a slowness of speech.  Although he did not exhibit it in the witness-box, it is quite possible, and on the evidence even likely, that he is generally somewhat distractible from his tasks, though the reason for this may vary from disinterest, resentment, the effects of his headaches, or even some feigning for personal reasons in situations of conflict or to avoid domestic work.

This and other symptoms may also be partly attributable to his abuse of marijuana.  While this use is consistent with his former abuse of alcohol, its present effects should not be exaggerated since he has little money to spend on it.  Nevertheless, it could be causing some of his behavioural problems that are inconsistent with Dr Cameron’s view of his residual state, and he should avoid that substance.

There also may be some reduction in his responsibility as to money matters.  Generally his capacity appears to be sufficient, but it is somewhat likely that he would be vulnerable to persons who would prey upon him if he had control of a large sum.

In general, he is capable of functioning independently.  He can do everything he needs for himself, but he seems to lack motivation for domestic cleanliness and orderliness from time to time.  Some of this might reasonably be attributable to his intellectual injury.  So too might his preference to provide food for his dog before himself, but this could at least in a substantial part be attributable to eccentricity and his shortage of money.  It is not satisfactorily proved that he will not adequately care for himself for the most part.  His budgeting has been hampered by his marijuana purchases and caring for his dog which must be difficult to budget for on a pension.

Mr Allen’s account should be discounted in that it did not correspond with that of the plaintiff’s mother, and he says that he himself did nothing to abate the dirty and unhygienic conditions he described, when he could easily have done something and probably would have done so had it been as he described.  There could well have been some minor matters of that kind but the plaintiff was a single man who may well have let these standards slip temporarily in the ordinary course of his living.  In any case, some of these matters may have been produced by boarders in the house since the conduct was consistent with their character.

It is noteworthy that in an emergency situation he returned to work for about ten days about six months after his injuries, and although he was incapable of performing the skilled work competently the fact that he actually did it does not sit well with some of the more extreme claims now made as to his incapacity.

His deficit consequential upon his injury makes it probably desirable that he should have modest standard domestic supervision and assistance to help him keep the house clean and to organise his domestic affairs in a generally supervisory role.  This should be allowed for four hours per week on average to include an allowance for some difficult periods.  The work would require no great training or expertise.  It could easily be performed by a neighbour, if one were available, or other suitable person that the plaintiff himself could find and select.  Hostel accommodation for intellectually injured people would be satisfactory with some limitations, but it is likely that he would mostly prefer to live independently, which, because of his residual capacity, is reasonable.  The agreed rate for this domestic assistance is $10 per week for the past, including interest, and the same rate for the future but without the interest component.

An additional amount should be allowed for the period of six weeks of his convalescence at home with his parents.  Any care provided beyond this was not reasonably necessary.  In the result, the total figure for past care and assistance is $16,500.  For the future, after allowance for all the contingencies of life in both directions, he should be allowed $33,500. This is assessed on the five percent tables, which is appropriate having regard to current investment rates, for about thirty years.

His loss of earning capacity presents more difficult problems because of his poor pre-accident work history and some doubt as to his present earning capacity.  Because he was single and mobile, there is no reason to believe that his voluntary unemployment in each year before the accident was due to any serious difficulty in finding work.  He seems to have had an attitude of limiting the period he spent in employment and living on his savings supplemented by unemployment benefits.  In the period prior to his accident his heavy drinking and irresponsibility in his work attendance was consistent with his earlier lifestyle, though it seems that he was a capable worker when he chose to be.

The evidence as a whole suggested that he drank too heavily because he enjoyed it as routine recreation in company with his friends.  Although he had held his last job for about eighteen months, his general capacity to remain in a job seems to have been seriously reduced by his attitude.  Unfortunately he had reached an age where any substantial improvement through greater maturity was a fading prospect, but he should be allowed the chance that he may have taken on larger personal responsibilities that would have induced him to maintain more stable employment.  The problem with this is that he had not formed any stable relationship with a woman by the age of twenty-nine. 

Because of his competence and adaptability, he probably would have been able to find work when he chose to do so except perhaps in times of serious recession, so apart from the normal contingencies of life, the only major limitations to his earning capacity were his drinking problem and his general attitude.  His excessive drinking may also have injured his health in the course of time.  Although since his accident he has generally ceased to drink alcohol, this is probably because of its effect upon him and he has had recourse to marijuana.  This is limited by his income, but his use is probably excessive in the circumstances and is probably detrimental to his resources for food and other necessities.  The latter has some significance, though subject to his drinking problem, it had abated somewhat in the later years prior to his accident.  The assessment for this head of damages should be based upon a pre-accident earning capacity of an average of $350 per week. 

His present capacity to perform full-time commercial employment is probably seriously limited by the combination of his head injuries and his orthopaedic disabilities to his legs.  Again Dr Cameron’s assessment should be accepted but with one qualification.  It is likely that the practical effect of the head injury upon his former character has had a compounding effect, so that he would probably now be capable only of working in jobs in which he is interested and his unreliability would probably be magnified.  He is not unintelligent and he will probably wish to take up suitable occupation within his capacity, but with some latitude for his moods and distraction.  This of course will not be easy to find and retain, but with his natural inclination and interest in plants, he should be able to obtain occasional unskilled casual work under supervision as a nurseryman and to maintain some low level of employment, particularly with a sympathetic employer who would have advantages associated with casual employment.  After an appropriate allowance for the pre-accident diminishing factors that continued after his accident in somewhat exaggerated form, overall his present earning capacity should be regarded as averaging $80 per week.

The result is that his average loss is $270 per week, and although he was totally disabled for a period after he was injured, because he was also unemployed, that average should be applied for the whole of the pre-trial period. 

On these figures, the loss to the date of trial should be set at $108,000.  After allowing for his having received $60,000 social security during that period, $40,000 of which should be attributed to the period that he would notionally have been earning the amount awarded, the interest on the balance at six percent (being one half of a suitable average for the period) should be rounded to $30,000.  For the future a period of loss of twenty-two years should be allowed to reflect the contingencies of life.  On the five percent discounting scale, the result is $190,000.  A further component of $20,000 should be allowed for loss of superannuation.

His out of pocket expenses are agreed at $20,454.16 inclusive of interest.  For medication expenses he should be allowed $8 per week as a global figure to take into account the contingencies, including the effect of his award of damages on his pension.  To the present time, that should be limited to $3 per week.  Consequently, the pre-trial component is $1200 on which there should be interest of $500, and the discounted figure for the future component is $6500. 

Protection Order

Because his intellectual deficit is such that the plaintiff is in danger of being imposed upon by unscrupulous strangers, his disability is such that he needs the benefit of a protection order which will be made.

On the award which he will receive, as the result of the protection order that will be made, there will be public trustee fees of $5000.

General Damages

The plaintiff is now thirty-six years old.  Apart from his head-aches which have a doubtful association with the injuries, and which have doubtful intensity, he suffers little in the way of pain or discomfort.  His principal loss in this respect is his intellectual deficit and some physical disabilities consequent upon his brain damage.  Some of these are mildly obvious, but he presents well.  There is probably also some disability in his legs that gives rise to pain on excessive exertion and some pain in one hand.  There is a small possibility of epilepsy.

These things probably interfere fairly substantially with his lifestyle, even by comparison with his pre-accident state.  He is disabled from general employment and heavier physical recreations, though he can still swim in the surf and swimming pools when he chooses.

He has no tolerance for alcohol and uses marijuana as a substitute.  This of course is unsatisfactory and he probably misses the company of his drinking friends.

His use marijuana may make the effects of his brain damage more pronounced and he should not do it, but this would enlarge the deprivation he suffers in that it is a substitute for alcohol, which probably has a worse effect on him.  However, part of his behaviour can be attributed to this conduct and so the perception of the effects of his injuries as distinct from this cause should be adjusted appropriately.

Apart from the effect of his physical disabilities, the impairment of his speech and concentration and his reduced emotional stability have interfered to some extent with his social interaction, so that he is probably deprived of the pleasures of ordinary living to some extent in these matters.  His unfortunate relationship with his family has probably been exacerbated by his condition and his reaction to it.  He leads a more isolated life and relies more on the companionship of his dog and television as substitutes.  Hopefully when he resumes some form of work and has sufficient money for his ordinary needs, he will become more sociable.

He has had a relationship with a couple of women since the accident.  It is difficult to say but it is somewhat likely that these were not as satisfactory as his pre-accident associations, such as they were.

General damages should be set at $75,000 of which $20,000 should be apportioned for past loss.  Interest on that is $3000.  This gives full allowance to the justifiable features of the submissions in the plaintiff’s case.

Summary

Griffith v Kerkemeyer component
Pre-trial loss, including interest	$16,500.00
Future loss	$33,500.00
Loss of earning capacity
Pre-trial loss	$108,000.00
Interest thereon	$30,000.00
Future loss	$190,000.00
Loss of superannuation	$20,000.00
Special damages, including interest	$20,454.16
Recurring medication costs
Pre-trial loss	$1,200.00
Interest thereon	$500.00
Future loss	$6,500.00
General damages	$75,000.00
Interest thereon	$3,000.00
Total:	$504,654.16

If this figure is reduced by forty-five percent to allow for the plaintiff’s contributory negligence, the resulting figure is TWO HUNDRED AND SEVENTY-SEVEN THOUSAND, FIVE HUNDRED AND SIXTY DOLLARS ($277,560.00).

Orders

There will be judgment for the plaintiff against the defendants in the sum of TWO HUNDRED AND SEVENTY-SEVEN THOUSAND, FIVE HUNDRED AND SIXTY DOLLARS ($277,560.00) together with costs including reserve costs except the costs reserved by the order of White J of 15 April 1994 to be taxed.  There will be a protection order in respect of the plaintiff according to the draft order initialled by me and in respect of the Public Trustee’s fees and charges the defendants are to pay the plaintiff the sum of  FIVE THOUSAND DOLLARS ($5000.00).

Liberty to apply.