Jones v Hughes
[1999] QSC 60
•25 March 1999
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No. 982 of 1994
Before the Hon. Mr Justice Shepherdson
[Jones v Hughes]
BETWEEN:
DANIEL EDWARD JONES
Plaintiff
AND:
JEFFREY ALLAN HUGHES
RespondentREASONS FOR JUDGMENT - SHEPHERDSON J.
Judgment delivered 25 March 1999
CATCHWORDS: NEGLIGENCE - collision - two motor cycles - one turning across others path - whether breach of duty of care by the defendant - whether breach of Traffic Regulation 28(1) - damages.
Fardon v. Harcourt-Rivington (1932) 146 LT 391
The Council of the Shire of Wyong v. Shirt (1980) 146 CLR 40Glasgow Corporation v. Muir [1943] AC 448
US Shipping Board v. Laird Line Limited [1924] AC 286
Graham v. Baker (1961) 106 CLR 340
Wilson v. McLeay (1961) 106 CLR 523
Munkley v. Connors & Anor [1961] Qd R 496
Traffic Regulation 28(1)
Counsel:Mr T Macklin for the plaintiff
Mr J.S. Miles for the defendant
Solicitors:Rick Byrne & Associates for the plaintiff
Bradley & Co for the defendant
Hearing date: 23 November 1998 - 27 November 1998
IN THE SUPREME COURT
OF QUEENSLANDBrisbane No. 982 of 1994
Before the Hon. Mr Justice Shepherdson
[re Jones v Hughes]
BETWEEN:
DANIEL EDWARD JONES
Plaintiff
AND:
JEFFREY ALLAN HUGHES
RespondentREASONS FOR JUDGMENT - SHEPHERDSON J.
Judgment delivered 25 March 1999
This action arises from a collision between two motor cycles, one ridden by the plaintiff and the other by the defendant.
The principal question is whether or not the plaintiff has proved the collision was caused by the defendant's negligence.
On the issue of liability the pleadings show that the parties agree:
1.That on 12 April 1993, the plaintiff was riding a Suzuki motor cycle registration No. IL-209 and executing a right-hand turn from the Mt Lindsay Highway into Granger Road, Park Ridge.
2.That at the same time and place the defendant was riding a Kawasaki motor cycle registration No. JX-456 in a southerly direction along the Mt Lindsay Highway.
3.That the motor cycles collided.
In the pleadings there was some dispute as to the time of the collision i.e. whether it was about 3.15 p.m. or 3.30 p.m., but whatever the exact time is immaterial; if it is necessary to do so, I find on the evidence of Mr Bell that the collision occurred at about 3.15 p.m. (T397).
It was also not in dispute that immediately before the plaintiff began executing his right-hand turn, he was travelling in a northerly direction.
Exhibit 45 is a print of part of an aerial photograph and this exhibit shows the intersection of Mt Lindsay Highway and Granger Road, and also the intersection of Mt Lindsay and Stoney Camp Road. The photograph was taken in 1996. Exhibit 45 shows a north point (but not placed there by the photographer) and also shows that vehicles travelling north along Mt Lindsay Highway are headed generally towards Brisbane, while vehicles travelling south along the highway are headed generally towards Logan Village.
I find that Stoney Camp Road intersected Mt Lindsay Highway on the western side of the highway almost, but not quite, directly opposite Granger Road which intersected Mt Lindsay Highway on its eastern side (see Exhibit 44). I find that for all practical purposes the intersection can fairly be described as the intersection of Mt Lindsay Highway with Granger Road and Stoney Camp Road.
Both the plaintiff and defendant gave oral evidence on the issue of liability as also did Lisa Michelle Jones, the wife of the plaintiff who was riding as pillion passenger on the Suzuki. Other witnesses relevant to the issue of liability were Frank Bandera (an eyewitness to the collision) Jeffrey William Bromley, a road designer/draftsman with Main Roads Department, through whom Exhibits 44 and 45 were tendered (T173), Raymond William Bell (another eyewitness to the collision) and Sergeant James Thomas Hickey (T444) who, on the date of the accident performed an accident investigation at the scene of the collision.
I find that Bandera was seated in the passenger seat of a stationary Toyota Hi Ace Van towing a trailer on which was a boat; that the Hi Ace was stopped on Mt Lindsay Highway on the northern side of the intersection and to the left of the marked centre line of the highway and facing in a southerly direction and that Mr Lutz, the driver of the Hi Ace, intended to turn right into Stoney Camp Road.
Bell was the driver of a Toyota Corona Station Wagon which travelled along Stoney Camp Road towards the intersection of Stoney Camp Road and Mt Lindsay Highway intending to make a right-hand turn at that intersection and then head south on the Mt Lindsay Highway. The Toyota Corona with Bell in the driving seat was stationary at the western side of the intersection at the time of the collision (T378).
Bromley tendered Department of Transport Roads Division plan of construction of the Mt Lindsay Highway, Granger Road intersection. This plan prepared in 1990 was in respect of work to be done on that intersection which was completed in April 1991.
In addition to the above findings, on all the evidence before me concerning the issue of liability I make the following further findings:
(a)at the time of the collision the weather was fine and clear with good visibility and the bitumen road surface of Mt Lindsay Highway was dry and in good condition (T397);
(b)at the time of the collision the level of traffic travelling on the Mt Lindsay Highway was light to moderate;
(c)Exhibit 44 represents what were then intended traffic lanes on Mt Lindsay Highway for a distance of 90 metres north of the intersection of the Highway and Granger Road and for a distance of 90 metres south of that intersection;
Exhibit 44 also represents work proposed on the eastern side of the highway and line marking in respect of that work which was for a distance of 90 metres north and 90 metres south of the intersection;
(d)Exhibit 54 made on 12 April 1993 by Sergeant Hickey is a sketch plan (not to scale) which includes representations of line marking then appearing on the intersection of Mt Lindsay Highway and Granger Road and Stoney Camp Road as well as the positions of the 2 motor cycles after the collision;
(e)I have already mentioned Exhibit 45 and its provenance.
Although the photograph from which Exhibit 45 comes, was taken several years after 12 April 1993, it confirms the line markings appearing on Exhibit 54 and particularly the "dotted diamond" turn lines appearing in Exhibit 54 in the middle of the intersection. This "dotted diamond" is not a rhombus - each of its four sides curves or arcs inwards.
(f)the photographs Exhibits 32 to 40 (all inclusive) were taken on the day of the collision and include photographs which show line markings then on or near the intersection as well as the damaged motor cycles. Of these photographs, I mention particularly Exhibit 37 taken from a point looking in a north easterly direction across the intersection of Mt Lindsay Highway and Granger Road and which shows part of the diamond turn lines to which I have referred. I mention also Exhibit 34 in which the photographer is facing in a southerly direction and which photograph shows more clearly the diamond turn markings to which I have referred.
(g)for traffic travelling north along Mt Lindsay Highway and approaching the intersection of Mt Lindsay Highway and Granger Road, Mt Lindsay Highway was two laned and bitumen sealed with bitumen shoulders until that traffic reached a point about 90 metres south of the intersection of Mt Lindsay Highway and Granger Road at which point the two lanes continued and line markings appeared as follows:
(i)on the western side of the two lane highway a lane began, which was bitumen surfaced and separated from the main north bound lane by a broken line (see Exhibit 33 for that broken line which continued in a northerly direction); that lane also gave access into Stoney Camp Road. I shall call this lane which continued north across and past the intersection of the highway and Stoney Camp Road the "western access/egress lane".
(ii)on the eastern side of the highway another lane began that lane being bitumen surfaced and separated from the main south bound lane by a broken line (see Exhibit 33 for that broken line). I shall call that lane which continued across and past the intersection of the highway and Granger Road the "eastern access/egress lane".
(h)for traffic travelling south along the highway and approaching the intersection of the highway and Granger Road, the highway was two laned and bitumen sealed with bitumen shoulders until that traffic reached a point about 90 metres north of the intersection of the highway and Granger Road at which point the two lanes continued and line markings appeared as follows:
(i)on the eastern side of the two lane highway a lane began, that lane being bitumen surfaced and separated from the main south bound lane by a broken line which broken line continued in a southerly direction. That lane was part of the "eastern access/egress lane";
(ii)on the western side of the two lane highway a lane began, that lane being bitumen surfaced and separated from the main north bound lane by a broken line which broken line continued in a southerly direction. That lane was part of the "western access/egress lane".
(i)at the intersection of the highway and Granger Road, the intersection was effectively four lanes wide (see the photographs Exhibit 32 and 33) - those lanes being the main north and south bound lanes of the highway plus the western access/egress lane and the eastern access/egress lane;
(j)the centre line of the Mt Lindsay Highway was marked on the highway as follows:
(i) for north bound vehicles approaching the intersection, by a clearly marked broken white line to the left of a continuous white line (see Exhibit 33) which lines ended when they reached the start of the diamond turn (see Exhibit 54)
(ii) for a south bound vehicle approaching the intersection by a clearly marked continuous white line to the left of a broken white line (see the photograph Exhibit 32) which lines ended when that centre line reached the start of the diamond turn (see Exhibit 34 and Exhibit 54).
(k)The speed limit for traffic travelling north bound or south bound on the highway and including crossing the intersection was 100 k.p.h.
(l)Shortly before the admitted collision:
(i)the plaintiff was riding his blue and white Suzuki motor cycle towards the intersection and saw clearly straight ahead along the highway for a distance of at least 1 kilometre;
(ii)the plaintiff saw a motor vehicle which I find was the Hi Ace Van driven by Lutz, stationary at the intersection of the highway with Granger Road and facing in a southerly direction;
(iii)the Hi Ace Van was close to and on the eastern side (its correct side) of the marked centre line of the highway;
(iv)the Suzuki motor cycle when about 200 to 300 metres north of the intersection was travelling at about 100 k.p.h. and thereafter the plaintiff by changing down through the gears and heavy braking caused the motor cycle to "nose dive" on a number of occasions; the plaintiff continued to slow the Suzuki as he approached the intersection. The changing down of gears made a loud noise.
(m)very shortly before the admitted collision, the Suzuki, still moving in a northerly direction maintained a position fairly close to and on its correct side of the centre line marking as it approached the diamond turn markings on the intersection;
(n)the Suzuki made a sweeping turn to its right commencing its turn about 1 metre before the end of the marked centre line (see Exhibit 33 for the marked centre line) and therefore about 1 metre before the Suzuki reached the diamond turn marking, which curved to the right across the south bound lane of the highway;
(o)the speed of the Suzuki as it began and as it executed its sweeping turn was probably less than 40 to 50 k.p.h. but probably considerably more than 5 or 10 k.p.h.;
(p)in executing its sweeping turn the Suzuki was not vertical but leaned over to its right;
(q)before the admitted collision, the plaintiff did not see the Kawasaki motor cycle ridden by the defendant.
Before continuing with these findings, I should say that I reject the plaintiff's claims that he had slowed down to a walking pace and was travelling at about 5 k.p.h. if that, and was more or less rolling and then he turned to the right following the dotted line in a right-hand turn. I thought unacceptable the plaintiff's evidence as to his speed of turn and manner of turn. On these aspects I found him unreliable and not credible. He agreed in cross-examination that when interviewed by police some months after the collision he said "I was stationary before I turned I was stopped". (T79)
In cross-examination he also agreed that the police officer had asked him "How long had you been stopped before coming to the turn?" and that he answered "It would have been just slowing down pulled up looked 10 seconds may be I was stopped there for a while because of the Ute. I was a bit cautious of that I knew he was turning". He also agreed that when the police officer asked him "Can you clearly remember stopping before commencing to turn?" he answered "Yes". He agreed the police officer asked "On what part of the road did you stop?" and he answered "Just near the line near the middle of the road as far away as I could from the other traffic from behind. Just a safe position on the road".
Later in his cross-examination he agreed that he told the police officer a lie when he told him that he had stopped and knew that he hadn't stopped.
I thought that because the plaintiff lied (as he admitted that he did) in respect of stopping his motorcycle, his evidence before me concerning his riding of the motor cycle up to and including the collision was almost certainly given with an intent to portray his driving in a light as favourable to himself as possible. For instance he told me the head lamps of his motor cycle were alight, but I reject that claim.
I also reject the evidence of Mr Bandera, the passenger in the Hi Ace, as to the speed of the Suzuki during the turn. He said the speed was about 2 to 3 k.p.h. (T154). Although Bandera did say the plaintiff did not stop before commencing the right-hand turn, he did say there was a slight wobble in the Suzuki just before the turn was made, and that there was no great lean on the Suzuki as it made its right-hand turn. I reject that evidence.
I thought that of the two independent witnesses - Bandera and Bell - Bell was by far the more reliable and credible. When it came to the circumstances surrounding the collision, Bell was stationary in Stoney Camp Road at the wheel of his vehicle waiting to turn right and travel south along the Mt Lindsay Highway. Bell was, as I accept, an experienced motor cyclist, although it is true to say Bandera had had some experience with motor cycles.
I accept that Bell had been riding motor cycles since he was about 10 years old, had always owned a motor cycle, had raced motor cycles and had been involved with motor cycle sport for many years. I am satisfied he had ridden motor cycles with a 750cc capacity, and was familiar with the blue and white colour scheme of a Suzuki and particularly recognised the make of the plaintiff's motor cycle when he first saw it. Bell gave evidence, which I accept, that after hearing the plaintiff's motor cycle to the south and looking towards it he then turned and looked to the north where he saw the defendant's Kawasaki. I am satisfied that he was in a position to observe the approach of both motor cycles and also speak of other vehicles which he saw passing along the highway. Bandera was not in a position to see the approach of the Kawasaki from behind the Hi Ace.
At the time of trial Bell was employed as a fire and rescue training instructor by Chubb Fire Australia, and at the time of the accident he was employed as a fireman by Queensland Fire Service and had had some 10 years experience as such. I am satisfied he was trained and experienced in accident emergency and rescue situations and held various first aid qualifications.
Although he knew the defendant (who was a police officer) at the time of the accident, he did not know him socially and had only met him in a professional capacity whilst attending emergency situations. Where Bell's evidence differs from that of Bandera, I prefer Bell's.
I return now to the findings:
(r)the defendant was aged 35 years at the time of the collision and was at the time travelling to his home after having finished work at 3 p.m. at Browns Plains Police Station where he was at the time acting sergeant in charge of the traffic branch. The defendant's home was about 10 kms from Browns Plains Police Station.
(s)shortly before the admitted collision:
(i)the defendant travelled in the south bound lane of the Mt Lindsay Highway and intended to continue in that lane and travel across the intersection of the highway with Granger's Road and Stoney Camp Road and continue in a southerly direction along the highway;
(ii)before the defendant reached the intersection he was travelling at about 90 to 100 k.p.h.;
(iii)ahead of him he saw a light coloured van in the middle of the south bound lane which van was stationary at the intersection and appeared to the defendant to be waiting to make a right-hand turn into Stoney Camp Road.
I find this light coloured van was the Toyota Hi Ace Van to which I have already referred.
(iv)as the defendant approached the intersection he reduced the speed of his motor cycle to between 60 and 70 k.p.h.;
(v)as he approached the stationary van he veered his motor cycle to the left so that it entered the eastern access/egress lane, and then overtook and passed the stationary Hi Ace Van;
(vi)as the defendant drove his motor cycle past the passenger side of the stationary van his speed was about 60 to 70 kph;
(vii)immediately after the defendant had overtaken the van he drove his bike in a slightly westerly direction intending to move from the eastern access/egress lane into the south bound lane of the highway;
(viii)when he was on or almost on the broken line separating the main south bound lane of the highway from the eastern access /egress lane he saw a flash of blue and white out of the corner of his eye and saw a flash of blue and white hit the right- hand side of the front forks of his motor cycle;
(ix)the defendant did not see the Suzuki until a fraction of a second before the collision occurred.
I find it more likely than not that the Suzuki struck the Kawasaki rather than the Kawasaki struck the Suzuki the first point of impact probably being the front wheel of the Suzuki striking the right-hand front of the Kawasaki. (I have made this finding although I agree with defence counsel Mr Myles, that the question of which motor cycle struck which first is not crucial to the outcome of this case). The above finding which I have made relies on Exhibit 40 which shows considerable damage to the right side of the plaintiff's Suzuki including a red mark on the right-hand side of the front mud guard which red mark is consistent with having come from the red paint of the defendant's Kawasaki motor cycle. I accept the plaintiff's evidence that that red paint mark was not present before the collision. In addition, although not so compelling, was the presence of blue paint in the vicinity of the front fork on the right-hand side of the Kawasaki which was consistent with the blue colouring of the plaintiff's Suzuki. The defendant said those blue paint markings were not present before the collision.
Furthermore, I regard it as reasonably important that the evidence showed that after the collision the defendant's motor cycle travelled in a southerly direction some distance past the point of impact. I find that after the collision the plaintiff's Suzuki did not continue to travel in the generally easterly direction which it had been travelling while executing its right-hand turn.
I find that the Suzuki came to rest in the position in which it is shown in Exhibit 54 and which more or less straddled the line separating the south bound main highway lane and the eastern ingress/egress lane.
I find the point of collision probably was about 1 metre south of where the dotted diamond curve line intersects the broken line which divides the south bound highway lane from the eastern ingress/egress lane [for this position see Exhibit 54].
I find that as the Suzuki approached the intersection to execute its right-hand turn the Hi Ace Van which was ahead of the Suzuki and slightly to its right effectively partially blocked or obscured the plaintiff's vision ahead of the south bound lane of the highway and that the closer the Suzuki got to the van the greater did the van block and obscure the plaintiff's vision of the south bound lane ahead.
I find also that shortly before the collision two motor vehicles travelling south along the Mt
Lindsay Highway overtook and passed the stationary Hi Ace Van on its passenger side those vehicles continuing to travel in the eastern access/egress land past or across the intersection and proceed south along the highway.
The plaintiff initially did not recall seeing those vehicles but did recall a car stopped on Stoney Camp Road waiting to turn onto the highway.
I find that both plaintiff and defendant were familiar with the intersection of Mt Lindsay Highway, Granger Road and Stoney Camp Road.
In his cross-examination the plaintiff admitted (T72) that:-
(a)if he were travelling south bound on Mt Lindsay Highway and there was a vehicle ahead waiting to turn right into Stoney Camp Road he would be able to pass that vehicle on its left-hand [passenger] side by travelling into the adjacent lane [the eastern access/egress lane] past the right-hand turning vehicle and he would then be able to merge back into the straight ahead lane of the Mt Lindsay Highway.
(b)before he made his right-hand turn about two other vehicles had passed the stationary vehicle waiting to turn right into Stoney Camp Road [the Hi Ace] and in passing the Hi Ace had travelled along its left-hand [passenger] side (T81).
These admissions by the plaintiff disclose that not only was he aware of the type of manoeuvre which the defendant performed but before he began his right-hand turn he had on that afternoon seen two other vehicles travelling in a southerly direction pass the Hi Ace on its passenger side.
In his evidence-in-chief (T20-21) the plaintiff had told me that as he approached the intersection and was slowing his motor cycle he did not see any vehicles coming towards him from the opposite direction other than the stationary vehicle intending to turn right into Stoney Camp Road.
The plaintiff's case in negligence is based on a large number of particulars, many of which were added to the statement of claim in November 1998.
In his submissions Mr Macklin, counsel for the plaintiff, relies on the following:-
(a)The defendant driving the Kawasaki motor cycle from a place behind the stationary Hi Ace where, when the defendant was probably fairly close to the Hi Ace and the trailer, his motor cycle was hidden from the plaintiff's view and overtaking the stationary Hi Ace passing alongside its passenger side.
(b)His submission that the defendant's manoeuvre from the eastern access/egress lane back towards the main south-bound traffic lane of the highway was in breach of reg. 28(1) of the Traffic Regulations and inherently unsafe.
The problems faced by the plaintiff in proving the collision was caused by the negligence of the defendant are:-
(i)The defendant, travelling in the south-bound lane of a two lane highway was driving towards the intersection at a speed some 30 to 40 kilometres per hour less than the maximum speed limit prescribed for the road on which he was driving (100 k.p.h).
(ii)At the time the weather was fine and clear with good visibility conditions and the road surface was dry and in good condition.
(iii)The defendant, when he saw the stationary vehicle ahead of him apparently intending to turn right into Stoney Camp Road and having reached a point in the highway where the eastern access/egress lane had begun, moved his motorcycle left and into the eastern access/egress lane and, while travelling in that lane, overtook the stationary vehicle (the Hi Ace) passing the Hi Ace on its passenger side.
(iv)The defendant, having passed the Hi Ace, then steered his motor cycle by veering to his right intending to return to the main south-bound lane of the highway and he had only some 90 metres south of the intersection before the eastern access/egress lane ceased and merged with the south bound lane of the highway.
(v)While executing that manoeuvre the motor cycles collided at the point and in the manner I have already found.
(vi)The plaintiff knew that before he made his right-hand turn two other vehicles had passed on its passenger side the stationary Hi Ace which was waiting to turn right into Stoney Camp Road.
(vii)The plaintiff was familiar with the intersection and as I have already found (see paragraph 32 ante), he knew in effect that the defendant's manoeuvre which I just described was one which occurred at that intersection.
(viii)At the time when and shortly before the plaintiff began his right-hand turn, the Hi Ace and the trailer it was towing obscured to a substantial extent the plaintiff's vision ahead along the south-bound lane of the highway and particularly his vision of any vehicle which might be approaching the rear of the Hi Ace and trailer it was towing.
(ix)Without stopping or slowing his motor cycle the plaintiff began and partly executed his right-hand turn moving completely onto and part way across the south-bound lane of the highway - the collision occurred before he completed that turn.
The defendant, as rider of the moving Kawasaki motor cycle, of course, bore an obligation to exercise reasonable care towards the plaintiff as rider of the Suzuki. Did he breach that duty of care as alleged by the plaintiff?
I note that in Fardon v. Harcourt-Rivington (1932) 146 LT 391 at 392, Lord Dunedin with whose speech other members of the House of Lords agreed said:-
"If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man then there is no negligence in not having taken extraordinary precautions."
Since that case the High Court of Australia has spoken on the manner in which a tribunal of fact is to decide whether there has been a breach of the duty of care. In The Council of the Shire of Wyong v. Shirt (1980) 146 CLR 40, Mason J (as he then was) with whose reasons Stephen and Aickin JJ agreed said (at p.47-48):-
"A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone (1951) AC 850 may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
I therefore ask myself the first question referred to in the above quoted passage - would a reasonable man in the defendant's position have foreseen that his conduct involved a risk of injury to the plaintiff?
I answer this question "No" and my reasons are:-
(1)In judging the standard of care the defendant is to be regarded as a reasonable man and as Lord Macmillan said in Glasgow Corporation v. Muir [1943] AC 448 at 457:-
"The reasonable man is presumed to be free both from over-apprehension and over-confidence"
(2)The plaintiff, while his vision along the south-bound lane of the highway ahead of him was substantially obscured by the stationary Hi Ace Van towing the trailer chose, without stopping, to turn his motor cycle across the south-bound traffic lane although he was aware that south-bound traffic might execute the very manoeuvre which the defendant had almost completed at the time of the collision.
(3)In my view the plaintiff was reckless in executing the right-hand turn in the manner in which I have found he did and as Stanley J (with whose reasons other members of the Court agreed) said in Munkley v. Connors & Anor [1961] Qd R 496 at 501:-
"As I see it the defendant was only under a duty to take reasonable care to avoid injuring the third party; his duty of care did not extend to preserve the safety of the third party no matter how reckless the latter might be. Such a duty would be that of an insurer"
(4)The defendant who had slowed his motor cycle to 60 - 70 k.p.h. in a 100 k.p.h. zone could not reasonably have foreseen that an oncoming motorcyclist would, without stopping and while his vision was obscured by the stationary Hi Ace Van and trailer, turn into the south-bound highway lane and into the defendant's path of travel.
(5)In my view the defendant as a reasonable man must, if he thought about the risk of an oncoming motorcyclist acting in that way, have regarded the magnitude of the risk as extremely small indeed and the probability of it occurring as "nil". There was no reasonably foreseeable reason for the defendant to drive otherwise than in the manner he did. At the instant of collision the defendant was almost if not actually at the broken line separating the south-bound lane from the eastern access/egress road and if the plaintiff had not turned across the south-bound lane, the defendant must have re-entered that lane safely and without incident
(6)In my view the conduct of the defendant in reducing his speed as I have found, overtaking the stationary Hi Ace Van on its passenger side by travelling in the eastern access/egress road and then turning back towards the south bound lane of the highway was that of a reasonable motor cyclist. I reject the argument of Mr Macklin, counsel for the plaintiff, that the defendant was negligent in turning back to re-enter the south bound highway lane before it was safe for him to do so.
(7)As for Traffic Regulation 28(1) it is my view that the defendant did not breach that regulation which reads:
"28(1) A driver shall drive his or her vehicle as nearly as practicable entirely within a single marked lane or line of traffic and shall not move laterally from such lane or line of traffic until the driver can do so safely."
Here, the defendant moved towards the main southbound lane at a time when he reasonably could not have expected any person or vehicle to be on or in the southbound lane at or near the position to which the plaintiff had brought his Suzuki.
(8)The plaintiff, in my view, created the situation which led to the collision and I apply the following remark of Lord Dunedin in US Shipping Board v. Laird Line Limited [1924] AC 286 at 291:-
"It is not in the mouth of those who have created the danger of the situation to be minutely critical of what is done by those whom they have by their fault involved in the danger"
This dictum was applied by the High Court of Australia in United Uranium NL v Fisher (1965) Australian Argus Law Reports 99.
In my opinion the plaintiff has failed to prove the collision was caused by the negligence of the defendant. The present case is not one where the collision would not have happened without the negligence of both parties concerned. I shall therefore dismiss the plaintiff's action.
Damages
In case I should be wrong about my view that the plaintiff has failed to prove liability in the defendant it is necessary for me to assess the plaintiff's damages. The plaintiff was born 4 June 1972. In his statement of claim amended on 17 November 1998, he has pleaded a number of injuries primarily to his left arm and left foot. On 17 November 1998 he added the further particular “psychiatric and psychological injury and trauma”.
Among reports I have are reports from the Princess Alexandra Hospital, dated 8 February 1994 and 28 March 1994 (Exhibits 13 and 14), as well as reports from Dr Robert Cooke, dated 6 May 1994 (Exhibit 19), 20 October 1995 (Exhibit 20), 23 June 1998 (Exhibit 21), and 1 July 1998 (Exhibit 22). I also have written reports from Dr David Gilpin, dated 1 September 1994 (Exhibit 23), 31 August 1995 (Exhibit 24) and 26 August 1996 (Exhibit 25).
Both Doctors Cooke and Gilpin are orthopaedic surgeons but the latter has limited his practice in that field to surgery of the hand and upper limb, including micro-surgery. Each of these doctors also gave oral evidence.
I am satisfied that in the collision of 12 April 1993, the plaintiff suffered the following injuries:
1.A head injury with concussion;
2.A Galeazzi fracture/dislocation of his left forearm, including a fracture at the junction of the middle and distal thirds of the shaft of the left radius, dislocation of the distal radio-ulnar joint with fracture of the ulnar styloid and a fracture of the lunate with compression of the bone and possible disruption of the scapho-lunate articulation;
3.A crush injury to his left fore-foot with an undisplaced fracture of the base of the distal phalanx and head of the proximal phalanx of the left hallux, fractures of the necks of the second and third metacarpals with displacement of the head and necks, fracture of the base of the proximal phalanx of the fourth toe, and a fracture of base of the proximal phalanx of the second toe.
On the day of the accident, plaintiff was admitted to the Princess Alexandra Hospital on transfer from the Logan Hospital. He underwent surgery to his left arm and left foot. On 20 April 1993, he was discharged as an in-patient but suffered some skin breakdown over the dorsum of his foot. On 4 May 1993 he was re-admitted to the Princess Alexandra Hospital as an in-patient for a plastic surgical review with respect to skin grafting. The plastic surgeons decided skin grafting was unnecessary and on 10 May 1993 he was discharged home. On 10 June 1993 he was seen at the Hospital and it was noted the foot wounds were much improved and the range of movement of his forearm was good. (I note that Exhibit 13 refers to "right forearm" but this is an obvious error). On 8 July 1993, the wound on his left foot was noted to be improving but he was having left wrist problems. It was therefore arranged for him to be reviewed by Dr Gilpin who was the hand surgeon at the Princess Alexandra Hospital. On many occasions he was seen at the out-patients’ department of the Hospital (but not necessarily on referral by Dr Gilpin). On 5 August 1993, at Princess Alexandra Hospital, Dr Gilpin diagnosed Kienbock’s disease of the left lunate. (See Exhibit 24) I infer from the reports of Dr Gilpin and the Hospital (Exhibit 13) that this meant the plaintiff had suffered a vascular necrosis of the lunate with collapse of the carpus of the left wrist. The plaintiff was offered arthrodesis of the left wrist but he declined. He continued to attend the Hospital because symptoms in his left wrist had, he felt, increased further. He decided in early January 1995 to have his left wrist arthrodesed. On 9 January 1995, this occurred with bone graft from his left hip. According to Dr Gilpin’s report (Exhibit 24) the plate in his left forearm (which I infer was inserted on 12 April 1993) was removed, a neurolysis of the left radial nerve occurred and the left distal radio-ulnar joint was reconstructed. He was an in-patient in hospital for a few days. His left forearm was in a plaster of paris cast and he had K-wires in place to fix the arthrodesis. These wires were removed under a local anaesthetic with sedation on 29 March 1995 "as a day case".
The plaintiff is naturally right-handed but although I accept that his left wrist should be pain-free and stable, he does have a continuing problem with it. Dr Cooke has examined and reported on the plaintiff over a period of years. When he saw him in 16 June 1998, the plaintiff complained of problems relating to the stump of the ulnar styloid. I accept that as a result of the arthrodesis of the left wrist, the distal end of the styloid of the plaintiff’s left ulna was excised and when the plaintiff regained function of his left forearm and hand, the ulna tended to sublux or stick out in different positions with and pronation of his left wrist and hand, and this caused the plaintiff some pain and discomfort.
I am satisfied that despite the problem I have just mentioned, the plaintiff has had a good result from the surgery to his left arm. I find that from a practical point of view the normal structure of the radius and ulna bones is that they rotate around each other along an axis that goes from the tip of the ulnar styloid through to the head of the radius, such that it is like a quadrilateral structure and they maintain a constant relationship to each other through pronation and supination. I am satisfied that the effect of the surgery has been to disturb the relationship in one of the sides of the parallelogram so that the normal anatomical relationship no longer exists and the result now is that when he rotates the radius which is the intact bone, the ulna moves away from or towards, whichever way the radius is going.
Although there was some dispute between Doctors Cooke and Gilpin as to the percentage of permanent partial disability in the plaintiff’s left arm, I am satisfied that that disability is substantial and that the 40 percent assessed by Dr Cooke is in effect the same as the percentage assessed by Dr Gilpin who used a different set of tables.
From an orthopaedic point of view, the more serious disability has been to this right-handed man’s left arm. This is not to say that the consequences of the injury to his left foot are of minimal importance. I accept Dr Cooke’s opinion that he has a 15 percent loss of function of the left lower limb as a result of the injuries to his foot. I find that he is left with loss of function of the inter-phalangeal joint of his left big toe, loss of function of the metacarpophalangeal joints of the second and third toes, and fixed flexion deformity of those joints due to scarring. I am satisfied that these matters prevent him from running and participating in any activity that involves running and/or jumping, and make it uncomfortable for him to walk barefoot. I noted that he appeared to walk normally when entering and leaving the witness-box.
Dr Cooke mentioned some loss of function in the lumbosacral spine. Although no injury to the lumbosacral spine was pleaded, nevertheless an attempt was made to prove that the plaintiff had, on the balance of probabilities, injured his lumbosacral spine in the accident of 12 April 1993. Having considered the oral evidence of Dr Cooke, I have come to the conclusion that the plaintiff has failed to satisfy me that on the balance of probabilities, he did suffer such an injury. I should add that in relation to the plaintiff’s left hand, although his wrist has been arthrodesed, he has a full range of movement in the fingers and thumb, and the intrinsic musculature is intact as also is his sensation. From a practical every-day point of view, these matters are important and satisfy me that the plaintiff’s ability to use his left hand is impaired little if at all. I should add that I am satisfied that there is no reason to think that the plaintiff’s left wrist is likely to deteriorate further. I note that Ms Bentley observed the plaintiff performing a tea-making activity. She said in her report - "While performing this task he appeared to be using both hands normally without any obvious favouring of his left upper limb."
Psychiatric Claim
The evidence in the plaintiff’s case concerning the plaintiff’s alleged psychiatric condition and its relationship to the motor cycle accident was far from clear cut until I heard oral evidence from Dr Reddan who was called by the defence.
I find that for almost 4 years the plaintiff has been seen and treated by Dr Greg Apel, a psychiatrist who has given the plaintiff’s solicitors a number of reports which are in evidence before me. Dr Apel also gave oral evidence. After having treated the plaintiff for over three and a half years, Dr Apel changed a diagnosis of the plaintiff’s condition which he had made several years earlier.
It is necessary that I say something of Dr Apel’s reports and oral evidence.
His first report was dated 10 January 1996 (Exhibit 26). I find that on 31 May 1995, the plaintiff’s general practitioner, Dr Goodall of Woodridge, referred the plaintiff to Dr Apel who initially saw him on 16 June 1995. I find that thereafter, throughout the rest of that year Dr Apel saw the plaintiff on some sixteen occasions. Dr Goodall referred the plaintiff to Dr Apel because of depressive symptoms. At the date of Exhibit 26 the plaintiff was an inpatient in the psychiatric ward at Logan Hospital for assessment of depression. Dr Apel had referred plaintiff to that hospital for that assessment and in Exhibit 26 made it plain that he was writing Exhibit 26 from the perspective of a treating psychiatrist.
Jumping ahead slightly, I note that it was not until 24 November 1998 when Dr Apel furnished his last report to the plaintiff’s solicitors, (Exhibit 52) that Dr Apel said he first learned of the existence of a discharge summary for the plaintiff from the Princess Alexandra Hospital relating to his admission there between 18 and 24 July 1995 under the care of a consultant psychiatrist, Dr Paul Schneider. Dr Apel says this report noted that the plaintiff was suffering a manic episode arising in the context of significant depression and post-traumatic stress disorder. This report by Dr Apel is Exhibit 52 and I shall refer to it again.
Before 24 November 1998 it seems that Dr Apel believed the plaintiff had been hospitalised only twice for a psychiatric condition namely “major depression”. Looking at Exhibit 16, which is a copy of a report from the Logan Hospital, I am satisfied that on 5 January 1996 the plaintiff was admitted to a psychiatric ward after referral by Dr Apel. He was discharged on 31 January 1996. I find that he was not continuously an inpatient at Logan Hospital during this 26 day period. Exhibit 58 is a bill for the Hospital services during this period. It shows bed charges for only 7 days and "went on leave" for the remaining days. No explanation was sought or offered for the "went on leave" entries in Exhibit 58 but, because the parties have agreed the quantum of the bill claimed is part of plaintiff's special damages, I infer that of this 26 day period plaintiff was actually an inpatient requiring use of a bed on 7 occasions, probably when Electro Convulsive Therapy or ECT was given. The report Exhibit 16 shows the final diagnosis was “major depression”. During this time electro-convulsive therapy (ECT) was thought to be of benefit to the plaintiff and the plaintiff agreed to this therapy. Exhibit 16 shows that the plaintiff “had a total of seven unilateral treatments and his mood improved substantially”.
On 8 February 1996 he was admitted again to the Logan Hospital “with a resurgence of his depressive symptoms and some vague suicidal ideation”. See Exhibit 15 from the Logan Hospital which notes: "He reported that since his discharge his mood had gradually slipped again. On the night prior to his admission he had drunk a bottle of whiskey and became angry and aggressive with his family." The report described an assault on his wife and records that his wife had left the marital home to stay with her mother.
Again he was diagnosed as having major depression and there are notes “He discharged himself against medical advice on 12 February and he subsequently followed this up with his family and private psychiatrist who felt he could be managed as an out-patient”. Exhibit 58 shows a bed charge on 8 February 1996 only.
I return to Exhibit 26. This document contains information concerning the motor vehicle accident supplied by the plaintiff to Dr Apel and some of that information is quite incorrect. For example, the plaintiff told Dr Apel (as I so find) that the collision occurred at a major set of traffic lights, that he had suffered a traumatic loss of three toes, that the K wires were removed from his left wrist “without anaesthetic” [in evidence he said his arm was totally sedated]. In Exhibit 26 which is quite a long document Dr Apel made the following diagnoses of the plaintiff:
1.Major depressive disorder secondary to slowness of recovery from physical injury;
2.Post-traumatic stress disorder, mild to moderate severity;
3.Substance induced mood disorder (anti-depressant induced hypomania - two episodes);
4.On-going physical pain and disability secondary to his motor cycle accident.
In Exhibit 26, Dr Apel gave a guarded prognosis saying that “he has spent almost three years of physical and psychiatric illness of disabling severity and given this duration of illness and despite twelve months of intense psychiatric treatment he still remains only partially recovered”.
Dr Apel’s next report (Exhibit 27) is dated 9 January 1997 and is described as “a follow up report to my original report dated January 10, 1996". The plaintiff continued to see Dr Apel throughout 1996 and eleven occasions are noted in exhibit 27. Dr Apel described the plaintiff’s medical state as having improved marginally since January 1996 and said he remained markedly disabled for psychiatric reasons. At Dr Apel’s direction the plaintiff had had further ECT at Logan Hospital. But according to Exhibit 27 the plaintiff told Dr Apel of suicide attempts by overdose and also at times formation of highly practical plans for suicide choosing a rope and a location at which to hang himself. In Exhibit 27 Dr Apel set out “future prospects” and these in summary are:
1.He then saw the plaintiff’s psychiatric disability persisting at least for two to five years into the future;
2.The severity of the depressive illness was such that further hospitalisations were highly likely and "I would restate the ongoing risk of successful suicide in this man”;
3.The plaintiff is highly unlikely to return to the workforce within the next three years;
4.The plaintiff’s capacity to enjoy life has been almost completely eradicated;
5.The plaintiff had lost contact with almost all his friends and his principal support remained his wife and his parents although, as he pointed out, the plaintiff’s wife had left him on two occasions previously. He described the plaintiff’s sexual drive and performance as “virtually nil”
I should point out that Dr Apel appears at that stage to have relied heavily on what he was told by the plaintiff. The plaintiff in my view was not and is not an accurate historian and he was prone to exaggerate in any given situation to paint himself in the best possible light.
Dr Apel’s next report is Exhibit 28 dated 12 May 1997. By that time he had read a report dated 11 January 1997 given by Dr JG Reddan to the defendant's solicitors. Dr Reddan was and is a consultant psychiatrist.
By the time of Exhibit 28 Dr Apel considered the plaintiff to be profoundly depressed and he diagnosed the plaintiff as having bipolar affective disorder. I mention that Dr Apel later abandoned this diagnosis and I shall come to that shortly. As at 12 May 1997 Dr Apel was quite guarded about the plaintiff’s psychiatric outcome saying:
“His illness has been of a catastrophic severity and of such persistent duration that does not bode well for the future. I would see it extremely unlikely that he be able to return to the workforce in any gainful manner within the next 4 to 5 years”.
On 9 September 1998 Dr Apel sent to the plaintiff’s solicitors a further report (Exhibit 29) which he described as a follow-up to the reports which are Exhibits 26 and 27. It is apparent from Exhibit 29 that he had seen the plaintiff eight times between 29 December 1997 and 17 August 1998 (both inclusive). In Exhibit 29 Dr Apel said the plaintiff continues to suffer a major depressive illness and in respect of "management" said:
“His depression has failed to respond to a wide range of antidepressant medication and he develops a substance induced hypomanic state on treatment from antidepressants further hampering his management. A trial of ECT in Logan Hospital proved fruitless. As such, the poor results of treatment have left him with ongoing pain and suffering.”
He concluded the report by saying:-
“All up I would see his difficulties persisting for some time into the future and certainly at least 2 to 3 more years. I would see no reason for his pain to ameliorate but over a longer span of 5 to 10 years he will learn to accommodate this and live with his pain.”
Dr Apel noted that suicide remains an ongoing serious risk.
His final report was dated 25 November 1998 (Exhibit 52) and I have already referred to this. Exhibit 52 contains “an update of events”.
After referring to the existence of the discharge summary for the plaintiff from Princess Alexandra Hospital referring to his admission there between 18-24 July 1995 under the care of Dr Schneider Dr Apel went on:-
“In my initial reports I understood that Mr Jones had not been on any antidepressant medication until two months prior to this admission. He had as well given me a history of significant mood swings of hypomanic type for several months prior to this, dating back at least to late 1994. On the consequence of my original information as such, I arrived at the diagnosis of a bipolar disorder. However, noticing this in the discharge summary, this suggested he has only had hypomanic mood swings in the context of a background of depression and medication with antidepressants.”
Dr Apel wished "to confirm matters" and as he said in Exhibit 52 got in touch with a doctor who had taken over Dr Goodall’s practice and was able to find out that the antidepressant Prozac was initially prescribed for the plaintiff on 10 August 1994 at a dose of 20 mgs per day. Dr Apel said in Exhibit 52 "The notes indicated that he had received further scripts."
As a result Dr Apel revised his diagnosis of the plaintiff to:-
1.Recurrent major depressive disorder.
2.Substance induced mood disorder with manic features.
In Exhibit 52 Dr Apel went on to say that he agreed with the thoughts which Dr Reddan expressed on 12 January 1997. I assume he was referring to Dr Reddan’s report of 11 January 1997 in which she expressed quite a number of views. Nevertheless in Exhibit 52 Dr Apel made it clear he differed from Dr Reddan “in the consequences of the change in my diagnosis”.
On the evidence thus far I find that on 10 August 1994 the plaintiff was first prescribed an antidepressant Prozac and he had further scripts for this drug. It may be that Dr Apel did not see Exhibit 16 which is the three page document from Logan Hospital concerning the plaintiff’s admission there from 5 January 1996 to 31 January 1996. In that report under the heading “Past Psychiatric History” is the reference to “one previous admission to PAH in August 1995 leading to his referral to Dr Apel for ‘chronic depression’.”
In any event I am satisfied that Dr Apel abandoned the earlier diagnosis of the plaintiff suffering bipolar affective disorder or manic depressive illness which he said was its alternate name (T288).
Dr Apel was quite candid in the witness-box and conceded in effect he was not a true expert witness but rather one who gave evidence as the psychiatrist treating the plaintiff. He conceded that being the treating doctor obscured objectivity and that he had good rapport with the plaintiff.
Dr JG Reddan provided the defendant's solicitors with four reports on the plaintiff and also gave oral evidence.
I do not find it necessary to refer to her reports. Suffice to say I have considered them and her oral evidence.
Of the two psychiatrists I prefer the views of Dr Reddan to those of Dr Apel who, as I have mentioned, conceded his objectivity in this case had been obscured. This comment is not meant in any way to be disrespectful of Dr Apel. I should however say that Dr Apel’s opinions over the years until late 1998 were based in part on what, in my view, were some incorrect facts given him by the plaintiff and more importantly on Dr Apel’s unawareness until late 1998 that as early as August 1994 the plaintiff had been prescribed the anti-depressant Prozac and had thereafter had repeat scripts for the drug.
First, I decline to find that the plaintiff suffered post-traumatic stress disorder as a result of the motor vehicle accident in April 1993. I find that the plaintiff has no recall of the actual collision. I find that an essential feature of post-traumatic stress disorder is a significant traumatic event that has to be experienced with horror and threat to life at the time (T474). I find that the plaintiff did not experience such an event. He may well have been told of the event and had the event described to him by other persons and he may thereby have developed in his mind's eye a picture of the collision but after hearing Dr Reddan I am well satisfied that that could not cause the plaintiff to develop post-traumatic stress syndrome.
Next, I find that the motor cycle accident brought on in the plaintiff episodes of major depression and at times when he was put on more than one anti-depressant at a time and had not had a mood stabilising drug to cover him the plaintiff developed very short lived episodes of hypomania in which his mood was out of contact with reality - I find only one of those episodes required hospitalisation and that was in 1995. I decline to find that the plaintiff suffered bipolar affective disorder.
I accept Dr Reddan’s definition as to the difference, from a diagnostic point of view, between bipolar affective disorder and major depression. Her definition is:-
“Major depression is merely meaning that the episode of mood disorder is of the depressed kind. Bipolar affective disorder implies that there are episodes of pervasive mood disturbance of both the elevated kind and the depressed kind. People can become hypomanic or even manic due to antidepressants but that is less common. But it is the nature of the mood disturbance - in fact they are almost at opposite ends - that largely defines the different diagnoses.” [T465]
I find also on the balance of probabilities that, pre-accident this plaintiff had, a disposition to develop depression. I find he had and has narcissistic and obsessional traits in his personality and that these traits meant that this plaintiff who I am satisfied was, pre-accident very interested in his physical fitness and performance, was a person more prone to develop major depression following the physical injuries he suffered on 12 April 1993.
I find that the accident of 12 April 1993 brought to light this disposition to develop depression and that in the future plaintiff will, on the balance of probabilities suffer one or more episodes of depression for which he will require treatment but not treatment as a hospital inpatient.
I find that these episodes will probably be of short duration because it is my view that once this present litigation ends plaintiff will get on with his life and his mood will be and generally continue to be euthymic i.e. neither significantly elevated nor depressed. So long as his mood remains euthymic, and the probabilities of this occurring are high, I find he will be unlikely to develop depression.
It is not possible to forecast when such episode or episodes or depression will probably occur but I am satisfied after hearing Dr Reddan that when he has such an episode it is very important that the plaintiff be treated with the correct drugs. I find that in view of the history of substance induced hypomania if plaintiff needs more than one antidepressant at a time he will need to have and will have a mood-stabilising drug as well.
I should add that although Dr Reddan said it is still possible the plaintiff will develop episodes of mania or hypomania spontaneously I regard those as being extremely unlikely to occur. I also take account of her view that people who develop substance induced or drug induced hypomania are at greater risk of developing bipolar affective disorder. I take that into account in a very marginal way only because it is my view that once this litigation is completed this plaintiff will put the events for the last six years behind him and get his life back on the rails and within one or two years return to the workforce working fulltime.
I add also that I accept and find that in the case of this plaintiff it is quite likely that had he not had the motor vehicle accident of 12 April 1993 he would at some stage in his life have developed at least one episode of depression. However, despite that predisposition no one can say at what stage or age in his life, if he had not had the 1993 accident, the plaintiff would have developed his first episode of depression.
I propose to assess damages for the psychiatric injury as a separate head and to allow for the likelihood of at least one further episode of major depression at some indefinite time or times in the future.
I also take account of what I am satisfied is a continuing risk and quite a high risk of this man committing suicide. The matter of suicide has been discussed by both Drs Reddan and Apel. Both doctors agree that the risk of suicide is significant in the plaintiff’s case. I am satisfied that the plaintiff is not prone to repeated substance abuse. I accept the evidence of Dr Reddan that the risk is that 10% to 15% of individuals with major depression will ultimately over the course of a lifetime suicide (T468). As against that the plaintiff has, as Dr Reddan said, “showed fairly good self-control”. He has not taken numerous overdoses and there have not been numerous gestures towards suicide.
She also points out that the newer antidepressants are much safer than the old ones and “it’s very difficult to kill yourself with the newer antidepressants”. Of course, suicide can occur in ways other than by drug overdose.
Nevertheless, the matter of the risk of suicide does play some part in my assessment of the damages and has tended to depress components for future damages.
Impairment of earning capacity - past
I make the following findings. The plaintiff was qualified carpenter/joiner at 12 April 1993. He had been apprenticed and apparently continued to work for his employer after he became a tradesman. On 13 November 1992 he ceased with the company Jacalta Pty Ltd and then on 17 November 1992 began work with Deleray Pty Ltd who I infer from plaintiff's evidence traded as Glentone Shopfitters remaining with them until 5 March 1993.
He became a casual employee with Albatross Swimming Pools (Aust) Pty Ltd, working for that company for 4 days in early April 1993. I note that he told Ms Bentley he took this job "because it was closest to home" and he regarded it as a "fill in job".
The defendant does not dispute that $400 net per week is an appropriate sum to use in the calculation of past loss of impairment of earning capacity. If the plaintiff had earned $400 net per week for working continuously over the period of 6 years since the accident then he would have received in the vicinity of $124,800. I reduce this figure to $124,000 - this judgment is delivered some weeks short of the 6 years. Exhibit 61 discloses the plaintiff's net income post accident and shows his total receipts from all sources since the accident and up to December 1998 to be as follows:
Income from employment (net) $23,877.74
Social Security 28,320.58
Superannuation or termination receipts 3,131.29Total $55,329.61
The above figure of $23,877.74 is not accurate - it should be $23,077.74. Exhibit 61 shows that the plaintiff worked for Albatross Swimming Pools for 2 days in October 1993, and on the basis that he earned $75 per day from Albatross and $350 per annum as an odd job handyman for 3 years as shown in Exhibit 61 then the above figure of $23,077.74 should be altered to $24,277.74. I propose to adopt this figure. The defendant is prepared to accept this figure and when it is deducted from $124,000 the balance remaining is $99,723. I round out this figure to $100,000.
The plaintiff is not wholly incapacitated and his counsel argues that the above figure of $99,723 should not be discounted at all. The defendant argues that this figure should be discounted to take into account the plaintiff's earning capacity which has existed but has not been fully exercised since he recovered from the arthrodesis of his left wrist performed in January 1995. Mr Miles for the defendant rightly points to the plaintiff's own evidence as to work which he has performed in renovating his home and restoring his utility motor vehicle details of which appear later in these reasons. He submits that this evidence shows that plaintiff had and has a reasonable level of residual earning capacity post arthrodesis. While it is apparent and obvious that the work performed in the home renovation and restoration of the motor vehicle must almost certainly have brought some reward to the plaintiff by increasing the value of his home, and the value of the vehicle, it is said on behalf of the plaintiff that by reason of his disabilities including his psychiatric condition, he has not been able to utilise fully his earning capacity and has to work at his own pace - a pace which is not competitive in the open labour market.
Mr Miles further argues that the so called "vicissitudes of life" including such matters as non-accident related illness or unemployment result in discounting of the above figure.
If I were not to discount the figure of $100,000, I would be assuming that the plaintiff, had he not been injured, would have worked full-time since 12 April 1993. His pre-trial work history shows that when he left Deleray Pty Ltd on 5 March 1993 he did not immediately re-enter the work force. When he did he worked on a casual basis for 4 days in early April 1993.
I am far from satisfied that had plaintiff not been injured he would have worked continuously until the present. I propose to discount to a minor extent for this reason.
I also propose to discount further to a minor extent because plaintiff has failed to satisfy me that since he had the K-wires removed from his left wrist he has used his earning capacity as fully as he could have done. His actual work history as an employee since the accident has shown a willingness to enter gainful employment other than as a tradesman carpenter/joiner. He performed clerical duties for Blackwood Hodge from 23 March 1994 to the 30 January 1995 and worked as a sales representative for another company CH & PL Palmwoods Pty Ltd from 6 February 1995 to 20 June 1995. In each of these occupations he was in virtual continuous employment for 15 months and this included the period when he underwent the arthrodesis. The total net earnings from these companies show on average $355 per week ($23,077¸65) - with Blackwood Hodge it was some $380 net per week.
In my view the plaintiff has been capable of earning income at the rate of about $355 net per week since recovering from the arthrodesis, but he has not exercised that capacity as fully as he might have done. He is obviously an intelligent man and his success in 1994-1995 in the other occupations indicates that his earning capacity is not limited to that of a tradesman carpenter/joiner. I find he was and is capable of earning a reasonably substantial income.
I recognise that since at least August 1994 he has suffered periods of depression and episodes of drug induced hypomania and these matters militate against continuous or substantially continuous fulltime employment. They are factors which have caused me not to discount even further the component for impairment of earning capacity up to date.
It should be noted also that I accept Dr Cooke's opinion stated in his report dated 20 October 1995 (Exhibit 20) that while plaintiff was then still having some psychological difficulties in coming to terms with loss of movement of his left wrist, there was no doubt that he then had a pain free stable wrist with improved overall function of his left-forearm, wrist and hand as a result of the wrist being stabilised in the position of function and that with appropriate retraining and rehabilitation plaintiff should have then been able to return to work as a joiner and that although he might experience some difficulties with some aspects of his work he will be able to overcome these by modifying the manner in which he performs these particular tasks.
In his report dated 23 June 1998 (Exhibit 21) Dr Cooke said, in a passage which I adopt:
"Mr Jones' condition is now stable and unlikely to alter significantly in the short to medium term.
His employment prospects would seem to be reasonable. He is a tradesman carpenter/joiner with experience in the industry. Further he is currently putting his experience and training to use in the renovation of his own home. It would seem that with appropriate rehabilitation he should be suited to either returning to work as a joiner or perhaps some other form of employment in the building and construction industry such as sales or supervision. In spite of his ongoing disabilities I can see no reason for him not being able to pursue full-time gainful employment until retirement. I do not believe that his residual suffering and disability is such that he should withdraw from the workforce at the age of 26 years and at the beginning of married life."
Dr Cooke's opinion is borne out by the plaintiff having worked for Blackwood Hodge and Palmwoods Pty Ltd. His opinion is also confirmed by the work done by the plaintiff in renovating his home and utility.
In accepting Dr Cooke's opinion, I have taken account of the lengthy occupational therapy report on the plaintiff dated 28 August 1998 prepared by Jacki Bentley, an Occupational Therapist and Counsellor (Exhibit 66) and her opinions expressed in it and in the witness-box. I allow $75,000 for past impairment of earning capacity and in arriving at that figure, I have taken account of the benefit to the plaintiff being the value (in a general way) of the renovation work I am about to refer to.
Renovation of home and restoration of utility
I am satisfied that during a period of about 2 years before the trial the plaintiff performed a considerable amount of work which was non remunerative in the sense that it did not produce money in his hand. I find it was remunerative in the sense that it increased the value of the article or place on which he had performed the work. In my view, I am entitled to take that increase in value into account - albeit in a general way. Although there is no figure placed on that value, it is my view that if an injured plaintiff remains away from the work place when he is capable of re-entering it and uses his working skills at home to benefit himself financially, the defendant is entitled to have the component for loss of impairment of earning capacity discounted because of the financial benefit the plaintiff has in effect bought himself.
I find that during the period of about 12 months in 1996, the plaintiff fully restored an old 4 wheel drive utility and this restoration involved everything from fully stripping the utility through to the installation by the plaintiff of a sunroof and timber side rails and to painting it.
I find also the plaintiff performed, largely and solely unaided, numerous jobs in and around the house which he and his wife bought in about Christmas 1996 after having rented it. The work included:
(a)the installation of a skylight involving inter alia cutting a hole in the ceiling, framing above the ceiling and installing a sheet of clear perspex in the roof;
(b)the installation of two new windows involving (inter alia) cutting bigger holes in the wall using a power saw; and
(c)the building of a new verandah at the front of the house involving everything from digging holes and inserting posts to mixing concrete and welding, to nailing floor boards in place and building a pergola. The dimensions of the deck were about 7 metres by 4 metres and it was built over a period of 6 months in the second half of 1997.
(d)the installation of a new bathroom involving everything from demolishing the old bathroom to building the new bathroom including plumbing, installation of the bath, tiling, building a vanity unit and using power tools in the process;
(e)the installation of a linen cupboard in late 1997;
(f)half renovation of the kitchen - including the installation of a pantry, cutting out walls, using power tools, replacement of ceiling panels and cornicing as well as painting;
(g)renovation of the laundry including plumbing; the installation of a broom cupboard;
(h)the commencement of construction of a rear deck involving digging holes, inserting posts and mixing and pouring concrete;
(i)the construction of an aviary involving laying a concrete slab with concrete mixed in a concrete mixer and building a cage;
(j)renovations to the work shop involving the building in of a lean-to adjacent to a double garage about 2 years ago and creating a doorway from the lean-to into the double garage;
(k)the construction of built-in wardrobes;
(l)renovating the house inside more or less completely.
I find all these works were overall works of a substantial nature.
Impairment of earning capacity - future
I propose to consider this component on the basis that the plaintiff would, if presently working for remuneration be earning $400 per week net. His supplementary statement of loss and damage shows a claim based on this sum. He has now turned 27. Mr Macklin contends that the component for future impairment of earning capacity should be assessed on the basis that plaintiff would have continued to work until he is aged 65. Mr Macklin argues that the appropriate sum is $360,800 (present value of $400 per week for 38 years on the 5 per cent tables) discounted by no more than 5 per cent on account of the risk of suicide and by no more than 15 per cent in total on account of all contingencies. He submits that a higher discount of say 30 per cent (as submitted by Mr Miles) is not appropriate in this case where, apart from the risk of suicide there is no evidence that the plaintiff has suffered any reduction of life expectancy, where the plaintiff was well qualified and well motivated for work and on the plaintiff's work history prior to the accident there was a lower than average risk that the plaintiff would not have gone on to realise the full potential of his earning capacity.
Mr Miles has submitted that the above figure of $360,800 should be discounted by 30 per cent to recognise the fact that he is not totally unemployable for the rest of his working life and "the usual contingencies and vicissitudes of life".
The figure of $360,800 for which Mr Macklin contends is tantamount to saying this plaintiff is virtually unemployable, and will remain so for the rest of his working life - some 38 years. This is against the evidence of Dr Cooke, which I have already mentioned. Dr Cooke is supported by Dr Apel who suggests that while plaintiff is not presently capable of working he may be capable within a few years perhaps 2 to 3 and by Dr Reddan whose evidence is that if the plaintiff's mood remains reasonably euthymic i.e. more or less level he will be capable of returning to work. Certainly, in the witness-box the plaintiff expressed the hope of returning to work. Ms Bentley's views are much more cautious and she maintained that from a physical point of view the plaintiff's future prospects for work are not reasonably good. She accepts that the plaintiff has performed the renovation works at his home - they were spelled out to her in great detail by Mr Miles - but she points out that he had done them at a pace which would not be commercially viable for an employee in open industry. I find that before she gave oral evidence Ms Bentley was not aware, of the extent of the work plaintiff did at home (see Exhibit 66 p.13).
It seemed to me after hearing Ms Bentley, that she was to some extent influenced by what the plaintiff told her. For instance, she was concerned about the plaintiff's limited ability to stand because of his injuries and the pain which then became a quite intervening factor. She conceded that if in fact the plaintiff did not suffer the pain to the extent of which he told her, and if in fact he could stand for longer periods than he told her then it would probably be true that his work capacity is increased accordingly.
At the end of the day in looking at this man's earning capacity, I do not place any significant weight on the opinion of Ms Bentley and I do so primarily because I consider that statements plaintiff made concerning his pain and standing ability and work he had done at home were not reliable indicators of those matters. I decline to find that plaintiff would not be commercially productive in his chosen field.
I find on all the evidence that plaintiff's earning capacity has not been totally destroyed. He has a capacity to earn a reasonably substantial income not only in his trade but in performing clerical and sales representative duties at least. He has demonstrated a capacity to earn at about $355 per week net of tax - as I have already mentioned.
It is my firm view that once this litigation ends this plaintiff will return to the workforce and will earn income although it may be up to 2 years before he does so. I consider it more likely than not that he will not be self-employed but there is a high probability that he will work fulltime in a clerical or semi-clerical position or sales position for an employer engaged in the building and construction industry (including building supplies).
While I accept that this plaintiff has suffered periods of depression since the 1993 accident, I have had and continue to have doubts about the reliability of his evidence. That he has the physical capacity to work as a carpenter or joiner or clerk or salesman is not in doubt. That he has some permanent partial disability in his left foot is not in doubt. He worked for Blackwood Hodge and for CH & PL Palmwoods (see Exhibit 61) through periods when he was hypomanic from anti-depressant abuse.
He has not worked fulltime since June 1995, but has demonstrated since then his ability to do quite heavy physical work at his home, working as a carpenter and joiner and as a concreter and welder. Although he says he can work only at his own pace - a slow pace - I have had and still have grave doubts about the validity of that claim and I reject it. Plaintiff has demonstrated an ability and propensity to slant his statements in his favour e.g. the statement to the police that he stopped the motor cycle before turning.
He has received social security payments totalling $28,320.58; his wife worked and brought in income and he has had no real incentive to return to the workforce. This present litigation from which he hopes to obtain some compensation will not have encouraged him to return to work.
Although I find that he is permanently partially impaired in his capacity to work, it is my firm view that he is nowhere near as disabled from work as he would have me believe.
I accept that he lives with a 10%-15% risk of suicide but as against that he is an intelligent man; the probabilities are that his mood will generally remain euthymic and thus the risk of suicide will be reduced.
I assess the component for future impairment of earning capacity recognising that "an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss" (Graham v Baker (1961) 106 CLR 340 of 347) I award $200,000 for this component and in doing so have attempted to arrive at a figure designed to compensate the plaintiff for his loss under this head. A 30 per cent reduction in the $360,800 would arrive at $252,560. This is the figure for which Mr Miles contends. I accept that if plaintiff were not to return to work for the next 2 years he would lose some $40,000. Thereafter, I consider he will reenter the workforce and although he probably will earn less than $400 per week net after tax there is his demonstrated capacity to earn some $355 per week net pre and post arthrodesis.
If he earned at such a rate his loss would be $45 per week. Assuming he had a continuous loss at that rate for 36 years commencing in 2001 then the present value in 2001 of such a loss would be $39,825. That figure would require slight discounting to 1999 present values. Thus if he did not begin to work for the next 2 years and then earned $355 net per week till age 65 he would lose slightly less than $80,000.
This sum is not sufficient to properly compensate this plaintiff. I accept that he will be at some disadvantage on the open labour market and will probably suffer one or more periods of depression. In my view, the figure of $252,560 for which Mr Miles contends is too high and fails to take proper account of what I find is the extent of plaintiff's residual earning capacity and income he will earn from exercising that capacity. I have concluded that proper compensation for the plaintiff on this head of damages is $190,000.
Mr Macklin does not seek any component for loss of future superannuation contributions. If I were to have awarded such a component I would fix it at $20,000.
Griffiths v Kerkemeyer claim
The plaintiff, his mother and his father provided the only evidence to support the plaintiff's claim for an award of damages on the Griffiths v Kerkemeyer principle. Neither the plaintiff's wife nor his brother gave evidence on this topic. Detail was generally lacking save for the evidence of the plaintiff's mother, Mrs Jones during her cross-examination.
I thought the evidence-in-chief of the plaintiff and his mother showed exaggerated claims. Their cross-examinations confirmed this view.
I propose to adopt the defendant's suggestion and deal with the claim to date for various periods taking into account the times when the plaintiff was admitted and readmitted to hospital.
First period
This is from the date of the accident to 20 April 1993 when plaintiff was discharged from hospital. Mrs Jones gave evidence of visiting the plaintiff in hospital and his father gave evidence of picking up his wife from hospital and driving her home. Having heard their evidence, I am not satisfied that the time which the plaintiff's mother spent visiting him was "of some importance in the alleviation of [his] condition". I thought Mrs Jones merely wished to be close to her son and this is not a basis for an award of damages (Wilson v McLeay (1961) 106 CLR 523). I do not award any damages for this period.
Second period
This was from 20 April 1993 to 23 April 1993 being the first 3 or 4 days after plaintiff was discharged from hospital. Mrs Jones gave evidence that before the accident she performed numerous tasks for the plaintiff on a daily basis such as cooking his meals (T201/35). I find that pre-accident plaintiff lived with his parents. He was not then married. Mrs Jones agreed that on most days of the week she would cook dinner for her family and I find that that situation continued after the plaintiff had his accident. Her evidence was to the effect that in the first 3 or 4 days the time taken up in assisting the plaintiff involved in an extra 10 to 15 minutes at dinner time (e.g. cutting his food), about three-quarters of an hour at lunch time and about 15 minutes for breakfast making a total of about 1.25 to 1.5 hours per day (T202).
I find also Mrs Jones had to help the plaintiff with toileting about 5 or 6 times each day. She did not allot any specific time for this task, but I find this task took in all about 30 minutes each day. I accept also that she assisted the plaintiff with bathing and that this took about 1 hour per day. I find she assisted the plaintiff with dressing the wound to his foot and that involved about 2 hours per day. In all, for this period, I propose to assess damages at the rate of 5 hours per day for 4 days making a total of 20 hours. The agreed rate is $9 per hour and damages for this period I assess at $180.
Third period
This was from 24 April 1993 to 4 May 1993 on which latter date the plaintiff was readmitted to hospital. During this time, I am satisfied Mrs Jones assisted the plaintiff for breakfast, lunch and dinner for about 1 to 1.5 hours per day (T203.5). Toileting continued at about 30 minutes per day. She continued to dress his foot for about 2 hours per day, and she continued to bathe the plaintiff the time taken being about 1 hour each day.
I note in passing that the reason the plaintiff returned to hospital on 4 May 1993 was because the foot wound was not healing as quickly as expected. I propose to award damages for this 10 day period at 4.75 hours per day. The total number of hours is 47.5 hours and at $9 per hour the damages amount to $427.50.
Fourth period
This lasted from 10 May 1993 until he was readmitted to hospital on 21 June 1993 - a total of 42 days. The plaintiff's mother continued to assist him with his meals. I am satisfied she did so until his arm was out of plaster. Although the plaintiff said in evidence his arm was in plaster for about 9 weeks, I note in Exhibit 14 that on 10 June 1993 he had good movement in his forearm. I find therefore that it is more likely than not that the plaster was removed early in June. Having said that I note the defendant does not dispute that some additional assistance might well have been need by the plaintiff in the early period after the plaster was removed and I find that after the accident the plaintiff needed assistance with meals for about 9 weeks.
I find that at this time the plaintiff no longer needed help with toileting. As for bathing, Mrs Jones said it was necessary for her to assist the plaintiff for about 6 to 7 weeks post-accident, and this lasted until 1 June 1993. I propose to assess for gratuitous assistance during this 42 day period at 2 hours per day. The total hours therefore were 84 and at $9 per hour the damages for this period I assess at $756.
Fifth period
21 June 1993 to 23 June 1993 when the plaintiff returned to hospital (Exhibit 15). I find there was no entitlement to Griffiths v Kerkemeyer damages during this period.
Sixth period
23 June 1993 to 9 January 1995. Mr Miles has submitted that the plaintiff has failed to prove on the balance of probabilities the need for any gratuitous assistance during this period. The plaintiff's mother said it was about 3 months after the accident before the plaintiff could handle things himself (T207). The 3 months expired on 12 July. I propose to allow during this period for gratuitous assistance for 22 days at 1 hour per day, making a total of 22 hours at $9 per hour. Thus the damages for this period are $198.
Seventh period
From 9 January 1995 to 11 January 1995. During this time the plaintiff was in hospital having his left wrist arthrodesed and there is no entitlement to Griffiths v Kerkemeyer damages.
Eighth period
12th January 1995 to 2 February 1995. This period covers the 3 weeks after the plaintiff was discharged from hospital. There is some dispute between the parties concerning the quantum of entitlement in this period. The evidence of Mrs Jones suggests that she was with the plaintiff for about 10 hours per day. The plaintiff claims 50 per cent of the actual time which his mother spent with him (T211/30). This means his claim is for 5 hours per day for 15 days at $9 per hour.
In my view this claim is excessive. In cross-examination, Mrs Jones agreed that the amount of time involved in assisting the plaintiff after he came out of hospital from his arthrodesis was less than the assistance she rendered him in April 1993. She said "It was just that I didn't want him to be on his own at all because he was in bed in the lounge with the hip." She said in cross-examination she spent about 15 minutes helping the plaintiff with breakfast, about 15 to 30 minutes getting him lunch, about 30 to 45 minutes getting him dinner, and in addition spent about 15 to 30 minutes providing him with medication, helping him with toileting and other general assistance. Added to these times was a period of about 20 minutes travel each way between Mrs Jones' house and the plaintiff's sister's house where the plaintiff was living at the time. The total time claimed therefore amounts to 2 to 2.5 hours per day during this period. I propose to allow on the basis of 2.5 hours per day over 15 days at $9 per hour and this amounts to $337.50.
Driving plaintiff to and from hospital and doctors appointments
The evidence on this was rather scanty. I have no doubt that the plaintiff did need assistance for these purposes. Furthermore, waiting time at these appointments must be taken into account. I find a total of 50 hours is appropriate. At $9 per hour the award is $450.
Claim for assistance provided plaintiff around the home
This was not seriously pressed but as I have already mentioned the plaintiff has spent considerable time and effort renovating the home. I am not satisfied that he has demonstrated any need for assistance from any other person while he was doing that work. In addition, I note that in evidence the plaintiff's father agreed that if the accident had not happened he would have helped the plaintiff out with his home renovations in any event (T220/47). I note that Jacki Bentley the Occupational Therapist says the plaintiff "is now fully independent in all aspects of self-care".
I do not allow any damages for assistance around the home as I have set out.
Overall the damages under this head to date I assess at $2,349 which I round out to $2,350. I award interest on that sum at the rate of 2 per cent from the date of the accident to today and this amounts to $280.
Griffiths v Kerkemeyer - future
There is no evidence before me to justify my making any finding that the plaintiff has established any need for future gratuitous care and assistance. At the time of trial plaintiff was separated from his wife, and his wife did not give evidence of assistance (if any) which she had rendered him in the past. The plaintiff's own evidence regarding his renovation of the house and restoration of his motor vehicle proves that he is capable of carrying out all the necessary tasks of daily life without such assistance. The statement of Ms Bentley quoted in paragraph 145 above is against this claim. At time of trial he was living with a friend, and there was no evidence from that friend as to what any of the plaintiff's daily needs were at that time.
I should add that Mr Macklin urged upon me that the claim for future need really flows from the plaintiff's psychiatric condition. He submits that by virtue of the effects of the major depressive disorder and substance induced disorder with manic features there will be a need for assistance in the future.
Given my earlier finding that at some time in the future the plaintiff probably will suffer a major depression with an episode or episodes of hypomania a need may then arise. I do not consider the need will be other than minor. I propose to allow $500 on this head. I find that at present the plaintiff has no need justifying such damages. Given that such a need may arise in the future the likely cost of meeting that need must be discounted to present value of money - hence the $500.
Special damages already paid
The parties have agreed that special damages paid to date amount to $5,034.11. They have also agreed that that amount attracts interest at 5 per cent per annum from the date of the accident. Interest at 5 per cent on $5,034.11 for 6 years equals $1,510 at which sum I fix the interest.
Special damages remaining unpaid
There are three components and they are:
1.Refund to Princess Alexandra Hospital - $8,400
2.Refund to Logan Hospital - $7,633
3.Health Insurance Commission refund - $6,800
The total of these sums is $22,833. This sum does not attract interest.
Future psychiatric and medical treatment
The parties have agreed since the trial that the present day costs of psychiatric treatment for plaintiff is $90.50 per treatment. The reports from Dr Apel, plaintiff's treating psychiatrist show that plaintiff has been attending sessions with the doctor on an average of about once a month (see Exhibit 28 and Exhibit 29). I do not accept Dr Apel's view expressed in his report of 25 November 1998 (Exhibit 52) that the plaintiff may need life long treatment. His earlier report (Exhibit 29) said that the plaintiff's difficulties would persist "for some time into the future and certainly at least 2 or 3 more years". I find that on that basis his difficulties could reasonably be expected to end in about 2001.
I propose to assess the present cost of future psychiatric treatment for 3 years. Therefore, 36 visits at $90.50 per visit totals $3,258. This sum must be discounted to a present value. In addition there may be occasional visits beyond that 3 year period if the plaintiff at some time in the future requires treatment for future episodic depression.
As Mr Miles correctly pointed out there is no medical evidence as to the frequency at which psychiatric treatment will be required in the future (after the first 3 years). Mr Miles asked me to take account of a possibility that another quite independent event might cause major depression which would subsume the present psychiatric illness and the risk of suicide. I have decided to allow $4,000 for the present cost of future psychiatric treatment.
On the matter of medication there was no evidence as to the cost to the plaintiff of anti-depressant medication, save that he said when he did pay for them himself, it cost him about $3.20 per month after taking into account the discount he obtained as a recipient of social security benefits. The evidence showed that in the past about 80 per cent of his anti-depressant medication had been provided free of charge by Dr Apel and there is no medical evidence as to how long the plaintiff is likely to require that medication.
I accept Mr Miles submission that given that Dr Apel considers the plaintiff's difficulties will persist for at least 2 or 3 more years an award should be made on the basis that for the next 3 years it will cost the plaintiff about $3.20 per month. I propose to allow $100. This award does not take into account medication which has been provided free of charge by Dr Apel, and which the plaintiff is probably still using, nor does it take into account the possibility that Dr Apel might provide future medication free of charge.
Plaintiff claims that he spends about $4 per week for pain killers in the form of panadol and aspirin. If for example, plaintiff required this pain killing medication for the rest of his life then, assuming he lived until say aged 76 - another 49 years then at $4 per week the present value on the 5 per cent tables of the sum required to pay for that medication would be $3,888. This amount must be discounted to cover future contingencies including the risk of suicide. I propose to allow $3,000 for the future cost of medication.
Summary of damages
1.Pain suffering and loss of amenities of life $40,000.00
2.Interest on $20,000 at 2 per cent for 6 years $2,400.00
3.For psychiatric component of plaintiff's injuries $10,000.00
4.Interest on $8,000 at 2 per cent for 6 years $960.00
5.Impairment of earning capacity - past $75,000.00
6.Interest on impairment of earning capacity - past - interest
calculated on $43,447 at 5 per cent over 6 years is $13,034 (the sum of
$43,447 takes into account social security receipts and superannuation
and redundancy repayments received (see Exhibit 61)) - I allow $13,000.00
7. Impairment of earning capacity - future $190,000.00
8.Griffiths v Kerkemeyer component - past $2,350.00
9. Interest on Griffiths v Kerkemeyer - past $280.00
10. Griffiths v Kerkemeyer - future $500.00
11. Special damages paid by plaintiff $5,034.11
12. Interest on special damages $1,510.00
13. Special damages - still unpaid $22,833.00
14. Future psychiatric and medical treatment $7,000.00
Total $370,867.11
I therefore assess the plaintiff's damages including interest at $370,867.11
ResultI dismiss the plaintiff's claim and in the action I give judgment for the defendant against the plaintiff. I shall hear from the parties on costs.
INDEX
1. Question of Negligence p.1
2. Damages p.18-psychiatric claim p.22
-Impairment of earning capacity: pastp.31
-Impairment of earning capacity: future p.36
-Griffiths v Kerkemeyer claim: past p.40
-Griffiths v Kerkemeyer claim: future p.44
-Special Damages: paid p.45
-Special Damages: unpaid p.45
-Future psychiatric and medical treatment p.46
-Summary of damages p.47
3. Result p.48
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