Mark Norman Zilm v Natasha Anne Botten No. 4266 Judgment No. SCGRG 92/1192 Number of Pages 21 Negligence Damages

[1993] SASC 4266

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BURLEY J

CWDS
Negligence- Collision between cyclist (plaintiff) and motorist (defendant) - car overtaking cyclist who veered into path of car - defendant's speed excessive and overtook too close to plaintiff - liability apportioned 50/50
Damages - Plaintiff sustained severe head injuries and soft tissue injury to neck and back - good recovery from head injuries but plaintiff left with mild cognitive defects - neck injury mildly disabling - back injury precludes heavy lifting in awkward and confined spaces - plaintiff a diesel mechanic - able to work but not as effectively as before - damages assessed.

HRNG ADELAIDE, 11-20 October 1993 #DATE 19:11:1993
Counsel for plaintiff:        Mr Cameron With Mr Genders
Solicitors for plaintiff:     Genders Wilson and Partners
Counsel for defendant:        Mr Mccarthy QC
Solicitors for defendant:     Phillips Fox

ORDER
Damages assessed.

JUDGE1 BURLEY J The plaintiff was injured in a collision between a bicycle ridden by the plaintiff and a motor vehicle driven by the defendant on 5th January 1990 at about 4.50 p.m. The accident took place near the junction of Brookvale Road and River Valley Drive Windsor Gardens. The plaintiff claims damages for personal injury alleging that the collision was caused by the negligent driving of the defendant. 2. For the purposes of these proceedings the parties have agreed that the relevant part of Brookvale Road runs in a north-south direction, the higher part of the road being to the north and the lower part of the road being to the south. That being the case, River Valley Drive, at the point where it forms a junction with Brookvale Road, is to be taken as running in an east-west direction. 3. It is common ground that the plaintiff sustained a serious head injury as a result of the collision and that, as a result of the head injury, he is unable to remember the circumstances of the collision. The fact of the collision, the time and date when it occurred and the approximate area of the collision are not in dispute. 4. It is common ground that, prior to the collision, the plaintiff was riding his bicycle in a southerly direction along Brookvale Road and that the defendant was driving her motor vehicle in a southerly direction along Brookvale Road. The defendant was to the north of the plaintiff. In his statement of claim the plaintiff has pleaded that, as he was proceeding south along Brookvale Road, "he was required to deviate to his right to avoid a pothole on the surface of the roadway". The defendant alleges that the plaintiff has failed to prove this assertion. 5. It is common ground that the front of the defendant's motor vehicle came into collision with the rear wheel of the plaintiff's bicycle. That impact dislodged the plaintiff from his bicycle such that he was thrown towards the windscreen of the defendant's vehicle and he collided with it. The windscreen was broken as a result of that collision. The defendant alleges that the inference should be drawn that the plaintiff, when he was dislodged from his bicycle, first hit the front of the bonnet of the defendant's vehicle and then hit the windscreen. 6. It is common ground that the defendant did not bring her vehicle to a stop for some distance past the point at which the collision took place. The precise distance between the point of impact and the point at which the defendant's vehicle came to rest is in dispute because the defendant contends that the plaintiff has failed to establish with any degree of precision where the collision took place. Be that as it may, it is clear from exhibit P21-4 that the defendant's vehicle travelled a distance of somewhere between 47 and 50 metres. Such an estimate is to be derived from the exhibit referred to and the evidence given by Mr Coulter who made measurements at the scene on the 10th January 1990 and the evidence of Constable Butterworth who attended the scene shortly after the collision took place. 7. The defendant said in her evidence that just prior to the collision the plaintiff moved to his right, that is in a westerly direction, into the path of her vehicle with a view to turning right into River Valley Drive. The plaintiff disputes that he was in the process of turning right into River Valley Drive when the collision took place, although he concedes that he moved to his right prior to the collision taking place. The difference between the two contentions is that, if I accept the defendant's case, I may find that the plaintiff deviated from his original path to a substantial degree. If I accept the case contended for by the plaintiff then the finding may be that the plaintiff deviated only slightly from his original path. 8. Both parties agreed that in order to establish the relative speed of impact with any degree of precision it was necessary to ascertain the speed at impact of the defendant's vehicle and the speed at impact of the plaintiff's bicycle and to deduct the latter from the former. Because the plaintiff was unable to adduce evidence as to the speed of the plaintiff's bicycle at the time of the collision, the plaintiff relied upon the evidence of Professor Joubert to establish the relative speed of impact by reference to the path taken by the plaintiff after he was dislodged from his bicycle by the impact. Mr McCarthy QC, counsel for the defendant, contended that such evidence should not be accepted. 9. Because the plaintiff was unable to recall the circumstances of the collision, the plaintiff has had to call evidence with a view to asking the Court to draw inferences based on that evidence. In his final address Mr McCarthy directed my attention to Nominal Defendant v Owens (1978) 22 ALR 128 where Muirhead J reviewed the authorities relating to the basis upon which a trial Judge might draw inferences from established facts. His Honour said (at page 132):
"In Luxton v Vines (1952) 85 CLR 352 the majority of
    the High Court cited a then recent decision of that Court in
    Bradshaw v McEwans Pty Ltd (1951) (unreported), a case referred
    to in several other authorities. The Court there said in
    dealing with the civil standard of proof: 'In questions of this
    sort, where direct proof is not available, it is enough if the
    circumstances appearing in evidence give rise to a reasonable
    and definite inference: they must do more than give rise to
    conflicting inferences of equal degrees of probability so that
    the choice between them is a mere matter of conjecture ... But
    if circumstances are proved in which it is reasonable to find a
    balance of probabilities in favour of the conclusion sought
    then, though the conclusion may fall short of certainty, it is
    not to be regarded as a mere conjecture or surmise ...'". 10. Muirhead J then proceeded to review a number of cases and, at page 133 said:
    "In Gurnett v MacQuarie Stevadoring Co. Pty Ltd
(1955) 72 WN (NSW) 261 at 264, Street CJ cited Loreburn LC in
Barnabus v Bersham Colliery Co (1910) 103 LT 513: "In cases
    under this Act ... the plaintiff must prove his case; and
    although he may establish a state of facts which leads one to
    think that his version is quite a possible version of what took
    place, he must do something more than show a state of facts
    which is consistent with one view or with another view." Street
    CJ went on to add: "A guess is a mere opinion or judgment formed
    at random and based on slight or uncertain grounds. In
    contra-distinction to such a conjectural opinion, an inference
    is a reasonable conclusion drawn as a matter of strict logical
    deduction from known or assumed facts. It must be something
    which follows from given premises as certainly or probably true,
    and the mere possibility of truth is not sufficient to justify
    an inference to that effect." 11. It will be necessary to bear these principles in mind when I come to the task of making findings of fact. 12. It was central to the defendant's case that she gave a wide berth to the plaintiff's bicycle. She said (at page 489.26-7) that in preparing to overtake the plaintiff she moved her car towards the centre of the road so that the car straddled the approximate centre of Brookvale Road prior to the collision. She said she turned to the right when she saw the plaintiff move to the right (page 490.6-17). She also said she applied the brakes. Much of what she said can be tested by reference to a skid mark shown in some of the photographs (exhibit P5-20) and the plan (exhibit P21-3), provided that the plaintiff has established on the balance of probabilities that the skid mark was made by the plaintiff's car at the time. 13. The skid mark was present on the 10th January when Mr Coulter saw it. Constable Butterworth saw tyre marks at the scene but, taken in isolation, his evidence is probably insufficient to enable an inference to be drawn that the skid marks referred to by him in evidence were present immediately after the impact. However, the evidence of Mr Harman is of assistance. He said that he saw the skid mark shown in the exhibits referred to above immediately after the collision and that he had not noticed it on the road before then. He was and remains a resident of Brookvale Road. He uses the road every day as a motorist and as a pedestrian. I have no hesitation in accepting his evidence and from it I draw the inference that the skid mark shown in exhibit P5-20 was made by the defendant's vehicle at the time of the collision with the plaintiff's bicycle. Given the evidence of the defendant that, when she saw the plaintiff move to the right she pulled the steering wheel to the right, and braked, it must be inferred that the path taken by the defendant's vehicle at the time of collision was in the direction of the skid marks. I draw that inference. It must follow that, prior to pulling to the right, the defendant was travelling in a direction east of the direction of the skid marks. In all probability that direction was parallel to the eastern kerb and I so find. 14. Given that the northern end of the skid mark was 2005 mm west of the eastern kerb (exhibit P21-5) it must follow that immediately prior to pulling to the right, the defendant was driving so that the near side of her car was no more than 2005 mm west of the eastern kerb. This is inconsistent with the defendant's evidence that her car was straddling the centre of Brookvale Road before pulling to the right. Brookvale Road is 8.2 metres wide (exhibit P21-2). The centre of the road is therefore 4100 mm from the eastern and western kerbs. There is no direct evidence of the actual width of the defendant's car, but the span of the windscreen (in a straight line) was approximately 46 inches (page 1 of exhibit P23). From my observation of the shape of the defendant's vehicle (exhibit P4) I estimate that the width of the vehicle was some 1500 mm approximately. If the defendant's vehicle had straddled the centre of Brookvale Road prior to the defendant pulling to the right, the near side of the car would have been about 3350 mm west of the eastern kerb. So much is evident from the scale drawing annexed to these reasons, the dimensions shown on which (other than that shown in square brackets) are taken from exhibit P21. I accept the accuracy of that exhibit, apart from the measurement of the length of the skid mark. Given my findings in relation to the skid mark, I do not accept the defendant's evidence that her car straddled the centre of the road prior to pulling to the right. Nor do I accept Miss Livesey's evidence that the off-side of the defendant's vehicle was close to the centre of the road, if by that she meant that the off-side was less than 500 mm east of the centre of the road. 15. The skid mark demonstrates that the point marked "X" on the road by Constable Butterworth as the approximate point of impact is inaccurate. This is so because it is common ground that the defendant's car struck the plaintiff's cycle at the mid-point at the front of the defendant's car. That being the case, the actual point of impact must have been west of the point marked by Constable Butterworth. The point of impact must have been along the line taken by the front centre of the defendant's vehicle after the defendant pulled to the right. 16. I must next ascertain, if I can, the longitudinal position of the point of impact. Was it prior to the commencement of, during or after, the skid mark? I exclude the first because that is too far from the point marked by Constable Butterworth. I accept that his evidence proves that he was shown a point by Miss Livesey which he accurately marked with a yellow "X" on the road's surface. Miss Livesey agreed that she pointed out the area of the impact to Constable Butterworth. She did not, in evidence, say that he marked the point inaccurately, although she did say that she went with him "to show him approximately where we were when the accident occurred." (Page 508.29-30). Whilst I accept that it is difficult to place a point of impact accurately when there is nothing on the road surface to indicate the point, I consider that Miss Livesey was not so inaccurate that she erred by up to 4 metres from the area she pointed out to Constable Butterworth. Hence I exclude the possibility that the collision took place prior to the commencement of the skid mark. In arriving at that conclusion I take into account the evidence of the defendant as to when she first applied the brakes, the detail of which I now turn to. 17. The collision may have taken place while the defendant's vehicle was skidding. The defendant's evidence was not clear as to when she applied the brakes. In evidence-in-chief she said that she braked as she hit the plaintiff's bicycle. Miss Livesey said the same. However, in cross-examination (page 493.18-20), the defendant said that she may have braked "a second or two before" the impact. In giving that answer, I consider that she was endeavouring, as accurately as she could, to recall what happened. I find that she applied the brakes such that they came into operation and locked the wheels prior to the collision. I find that the application of the brakes, the locking of the wheels and the collision took place almost simultaneously. It follows that the collision must have taken place at a point somewhere between the commencement and end of the skid mark. Consequently I find that the position of the rear of the defendant's bicycle was somewhere between 3250 mm and 2750 mm west of the eastern kerb when the collision occurred. 18. It seems to me to be of significance that, had the defendant, prior to attempting to overtake the plaintiff, moved to the centre of the road, a collision may well have been avoided. This is so because, if reference is made to the plan annexed to these reasons, it can be seen that, because the car hit the bicycle at the front mid-point of the car, and because I have found that the collision took place when the car was leaving a skid mark on the road, at any given time that the rear of the bicycle reached the line of actual travel of the centre of the defendant's car, the defendant's car would have been west of that point had the defendant travelled along the centre of Brookvale Road and pulled to the right when she saw the plaintiff move to the right. If the plaintiff had intended to turn right into River Valley Drive, he may have had time to cease that manoeuvre. If he had not intended to turn right into River Valley Drive, but merely to move to his right to avoid a pothole, he may never have crossed the path of the defendant's vehicle. These considerations are relevant to the question of negligence and contributory negligence. It is therefore necessary to move from the speculative to the more concrete. 19. What findings (if any) are able to be made as to the plaintiff's case that he moved to the right to avoid the pothole, and the defendant's assertion (repeated by Miss Livesey) that the plaintiff was in the process of turning right into River Valley Drive when the collision took place? As to the former, it seems to me that no finding one way or the other is possible. It would, in my view, be mere surmise to say whether or not the plaintiff so moved to his right. The pothole was 1500 mm west of the eastern kerb. The plaintiff acknowledged that, on any given day, he might ride along Brookvale Road at a distance of between 1 and 2 metres west of the eastern kerb. On the day in question he may or may not have moved to avoid the pothole. I know that he moved to the right, and I know that, when the collision occurred, the plaintiff was west of the line of the pothole. The plaintiff said that he always moved to the right to avoid the pothole. However, both the defendant and Miss Livesey said that, prior to moving to the right, the plaintiff had moved closer to the eastern kerb. Miss Livesey put the distance as one foot. Had that occurred, the plaintiff would have missed the pothole. He may then have moved to his right to maintain a more westerly position. In that sense, his position on the road resulted from avoiding the pothole by going between it and the kerb and then resuming a more westerly position. But again, this is mere speculation: and it is speculation directed to, not so much the path taken by the plaintiff, but rather, as to his reason for taking a particular path. Speculation does not form a legitimate part of the process of finding facts. Facts are to be found by reference to the evidence, either directly from credible evidence, or as a matter of inference. In this matter, the facts relating to the plaintiff's path prior to collision have been provided by the evidence of the defendant and Miss Livesey. I have no reason to disbelieve their evidence. Miss Livesey appeared to me to attempt to state what she recalled as accurately as she could. What she said as to the path followed by the plaintiff (as opposed to the path of the defendant's vehicle) before impact is generally consistent with the defendant's evidence. In the circumstances, I am unable to infer that the plaintiff's move to the right was precipitated by a desire to avoid the pothole by passing to the west of the pothole. 20. As to the defendant's evidence concerning the plaintiff's movement to the right, that assertion must be divided into two parts: first, that the plaintiff moved to the right; and second, that the plaintiff moved to the right in order to turn right into River Valley Drive. There is no doubt about the first, but the second is, to a significant degree, a guess at the subjective intention of the plaintiff. Strictly speaking, evidence of the plaintiff's intention is inadmissible. However, the evidence was received on the basis that it was an indication of the extent of the plaintiff's turn to the right. 21. Be that as it may, if the evidence of the defendant and Miss Livesey were taken literally and accepted as such, a finding should be made that, immediately prior to the collision, the plaintiff turned across the path of the defendant's vehicle such that the plaintiff's bicycle was travelling at close to a right angle to the direction of travel of the defendant's vehicle. In my view, no such finding may be made. Neither the defendant nor Miss Livesey was asked by either counsel specific questions as to the angle of impact. The effect of the evidence of the defendant and Miss Livesey remains that the plaintiff moved to the right and an impact occurred. The path of the plaintiff's bicycle may have been, at the moment of impact, close to forming a right angle with the direction of travel of the defendant's vehicle. But it may also have been at a much lesser angle - as small as 10 degrees. In my view, the evidence tends to the latter conclusion but it is insufficient to enable a definite finding to be made. All I am able to say is that the plaintiff may have been in the process of turning right into River Valley Drive at the time of the collision and that is insufficient to form a basis of the finding of fact to that effect. This is so notwithstanding the contention of the defendant that turning right into River Valley Drive was consistent with the plaintiff taking a convenient route to his home. I agree that a right turn at River Valley Drive was just as convenient a route, and perhaps shorter, to the plaintiff's home when compared with the route which the plaintiff said that he took for several months prior to the collision. Nevertheless, I do not consider that it is open to me to find, on the balance of probabilities, that as a matter of inference, the plaintiff either intended to or was in the process of turning right into River Valley Drive at the time of the collision. He may have been doing so or he may have moved to his right to avoid the pothole or he may have moved to the right for some other reason. I have no means of knowing why the plaintiff moved to the right and it therefore follows that I cannot draw an inference as to the extent of his turn to the right by reference to such matters. 22. Another factor which needs to be considered is the relative speed of impact. This is derived by deducting the speed of the bicycle from the speed of the car at the time of the impact. The defendant's evidence was that she had been travelling at about 60 to 65 kph prior to braking. She agreed, as did Miss Livesey, that prior to the collision, the plaintiff had been cycling vigorously. This is consistent with the evidence of the plaintiff that, for several months prior to the collision, he travelled at a fast speed down Brookvale Road. However, none of the evidence enables me to make a finding as to the plaintiff's speed other than that he was travelling fast for a cyclist. 23. It was contended by the plaintiff that, based on the expert evidence of Professor Joubert, I should find that the defendant was, prior to braking, travelling greatly in excess of 60 to 65 kph. I do not accept that contention because the evidence does not support it. Professor Joubert relied upon research papers, parts of which are exhibit P24. Table 5. at page 106 sets out what happened to cyclists when struck by a car from the rear. It is based on a sample of four cases. Whereas the table indicates that the faster the impact speed, the further a cyclist is projected by the impact onto the car, the sample cannot, in my view, be taken as a clear indication 13 of the speeds involved such that they are applicable to all situations even as approximations. In addition, it is clear that, although the plaintiff hit the windscreen of the defendant's car, he also hit the front of the bonnet which was buckled and dented. This is apparent from the evidence of the defendant's father who repaired the bonnet after the collision. In my view, the only evidence available to me which may be used to make findings as to the defendant's speed prior to the impact, is the evidence of the defendant. 24. In accepting her evidence, I find that at the time when the defendant braked prior to impact, she was travelling at about 60 to 65 kph. I am unable to make any precise finding as to the speed of her car at impact, because, as I have already indicated, I do not know where the impact took place, other than that it occurred while the defendant's vehicle left a skid mark, and I do not know the extent to which the application of brakes by the defendant decelerated her vehicle. It is clear that her vehicle travelled for about 50 metres after impact. I do not know whether, during that time, the defendant continued to apply the brakes and, if so, to what extent. In those circumstances it is impossible, whether by working forward from the time at which she first applied the brakes, or working backwards from where the defendant's vehicle came to rest, or a combination of both, to find with any accuracy what the speed of the defendant's vehicle was at the time of impact. 25. In the absence of reasonably accurate findings as to the speed of the defendant's vehicle and the speed of the plaintiff's bicycle at the time of impact, no estimate may be made of the relative speed of impact. All I can find is that the impact was considerable. I base this finding on the condition of the car and the bicycle after the impact, the fact that the plaintiff both dented and deformed the bonnet and broke the windscreen and the fact that the plaintiff ended up some 50 metres from the point of the driveway of Mr Harman's house. In taking that last factor into account I do so only in a very general way. It is clear that he fell off the defendant's vehicle and rolled along the road coming to rest at the driveway of Mr Harman's house, but it is not clear at what point the plaintiff came off the defendant's vehicle. I also take into account the two gouge marks shown on exhibit P21-4. In accepting Mr Harman's evidence, I find that those marks were left by the plaintiff's bicycle. 26. My findings as to the collision are as follows. Prior to the collision both the plaintiff and the defendant were travelling in a southerly direction along Brookvale Road. The plaintiff was ahead of the defendant's vehicle. The defendant first became aware of the presence of the plaintiff on the road when she was at the crest of Brookvale Road which was located at least 200 metres north of the point where the impact occurred. At the time when the defendant first saw the plaintiff, the plaintiff was at the bottom of the rise. The plaintiff was then 1 to 2 metres west of the eastern kerb, travelling in a southerly direction and pedalling vigorously. His bicycle was a standard racer type having 12 gears. It is likely that when the defendant first saw the plaintiff the plaintiff had engaged the fastest gear on the bicycle. The defendant continued down the rise and the plaintiff continued to ride vigorously in a southerly direction. The speed of the defendant was faster than that of the defendant so that as they both proceeded south the distance between them narrowed. When the defendant had reached the bottom of the rise, the vehicle was travelling at about 60 to 65 kph and she continued on at this speed. As the two vehicles approached the junction of River Valley Drive and Brookvale Road the defendant decided to overtake the plaintiff. I am unable to make any finding as to the distance between the eastern kerb and the nearside of the defendant's vehicle when she decided to overtake the plaintiff. She may or may not have moved to her right prior to overtaking the plaintiff. If she did move to her right then she moved no more than to a point where the nearside of her vehicle was approximately 2 metres west of the eastern kerb of Brookvale Road. As the motor vehicle and the bicycle approached the junction of Brookvale Road and River Valley Drive the plaintiff moved to a position closer to the eastern kerb of Brookvale Road. Given the difference in the evidence between the plaintiff and Miss Livesey as to the extent to which the plaintiff came closer to the eastern kerb, I find that when the plaintiff moved towards the eastern kerb he did so to a point where his bicycle was somewhere between 500 mm to a 1000 mm west of the eastern kerb. The defendant continued with her intention to overtake the plaintiff's bicycle. She maintained her speed of approximately 60 to 65 kph. Had the plaintiff continued on his course and the defendant on hers, the defendant would have passed within 1000 to 1500 mm to the west of the plaintiff. When the front of the defendant's vehicle was relatively close to the plaintiff's bicycle, the plaintiff moved to his right without warning into the path of the defendant's vehicle. I am unable to state the distance between the front of the defendant's motor vehicle and the rear of the plaintiff's bicycle at this point. When the defendant saw this manoeuvre, she pulled her steering wheel to the right and applied the brakes of her vehicle in an effort to avoid a collision. The plaintiff continued in his movement out from the eastern kerb such that a collision took place between the centre front of the defendant's motor vehicle and the rear extremity of the rear wheel of the plaintiff's bicycle. I am unable to say with any precision as to how far the point of impact was from the eastern kerb of Brookvale Road but it would have been somewhere in the vicinity of 3 metres. That means that the plaintiff moved from the position of somewhere between 500 mm and 1000 mm west of the eastern kerb to a position some 3000 mm west of the eastern kerb when the impact occurred. The force of the impact between the defendant's motor vehicle and the plaintiff's bicycle was considerable, such that the plaintiff was dislodged from the bicycle, hit the front of the bonnet of the car and the windscreen of the car and then subsequently rolled off the car as it proceeded for a distance of some 50 metres in a southerly direction after the point of impact. I accept the evidence of the plaintiff that she had no opportunity to avoid the collision once the plaintiff moved to the right in the manner described above. However, that does not necessarily mean that the defendant was not guilty of negligence. I turn to a consideration of the negligence alleged against the defendant in the plaintiff's statement of claim. 27. It is alleged that the defendant drove at an excessive speed in the circumstances. I consider that the plaintiff has established this ground of negligence. The defendant approached the plaintiff's bicycle from the rear. In such circumstances the overtaking vehicle must be careful to ensure that if an emergency occurs to the front, he or she is able to take evasive action. The reasonableness or otherwise of the defendant's speed must be judged by reference to the distance between the two paths of the vehicle immediately prior to the overtaking manoeuvre. In this case the path of the plaintiff was, prior to the plaintiff moving to the right, parallel to the eastern kerb and about half a metre to a metre west of the eastern kerb. The path of the near side of the defendant's vehicle was parallel to the eastern kerb and, prior to the defendant pulling to the right, no more than about 2 metres west of the eastern kerb. Consequently, the distance between the two parallel paths, as the defendant commenced to overtake the plaintiff, was somewhere between 1 to 1.5 metres. In my view it was negligent of the defendant to attempt to pass the plaintiff in that manner travelling at a speed of between 60 and 65 kph. 28. When dealing with the speed of the defendant's vehicle prior to overtaking it is also convenient to consider, at the same time, the allegations contained in paragraph 5i and 5j of the statement of claim. By those paragraphs the plaintiff asserts that the defendant came too close or failed to allow a sufficient distance between her vehicle and that of the plaintiff prior to overtaking. I consider that the plaintiff has established that ground of negligence. The combination of the speed of the defendant's vehicle and the distance between the respective paths taken by the bicycle and her vehicle prior to the collision constituted negligence on the part of the defendant because she put herself in a position that, if an emergency arose ahead of her, she would not be able to react to that emergency. The fact is that an emergency did occur by virtue of the plaintiff moving into the path of the overtaking vehicle. The defendant's speed and direction were such that she had no opportunity to avoid a collision between the plaintiff's bicycle and her vehicle and a collision occurred. 29. I do not consider that the plaintiff has established that the defendant failed to keep a proper lookout. I accept the evidence of the defendant that she became aware of the plaintiff when she reached the crest of the hill and that she kept him under observation thereafter. 30. Paragraph 5(c) of the statement of claim alleges, in effect, a failure to avoid the collision. It constitutes a generality which is absorbed by the greater specificity of other particulars. 31. The plaintiff alleges that the defendant was negligent in failing to sound her horn or otherwise give adequate warning of her approach. It seems to me that this ground has been made out by the plaintiff if only because, if the defendant were to have rendered the overtaking procedure safer, she should have sounded her horn, given the speed at which she was travelling and the relatively short distance between the respective paths of her vehicle and the bicycle. In other words, if she was going to pass so close to the plaintiff and at such a speed, then it was encumbent upon her to give warning of such an approach to the plaintiff by sounding her horn. 32. The allegation in paragraph 5e of the statement of claim is a generality which is dealt with specifically by other particulars. 33. Paragraph 5f raises matters which are dealt with more appropriately by reference to paragraph 5d of the statement of claim. 34. Paragraph 5g of the statement of claim was not pursued. Paragraph 5h of the statement of claim contains a general allegation which is more appropriately dealt with by reference to the more specific allegations in paragraph 5. 35. I do not consider that the allegation contained in paragraph 5k, even if it constituted negligence, was causative of the collision. 36. Paragraph 5l of the statement of claim alleges that the plaintiff failed to apply the brakes of her vehicle properly or at all. I do not consider that this allegation has been made out. I accept the plaintiff's evidence that she applied her brakes as soon as she became aware of the fact that the plaintiff was moving to his right. I have already indicated that she was then in a position where she could do nothing to avoid the collision. Consequently, if there was any failure properly to apply the brakes, that was not causative of the actual collision. However, in any event, the plaintiff has failed to establish that the plaintiff did not properly apply the brakes. 37. The defendant, in her defence, alleges that the plaintiff was guilty of contributory negligence. I do not doubt that the plaintiff was contributorily negligent. It was central to the defendant's case on contributory negligence that the plaintiff veered to the right without warning so that he came within the path of the defendant's vehicle. I accept the defendant's contention that this constituted contributory negligence on the part of the plaintiff. 38. Having found that the defendant was negligent and the plaintiff contributorily negligent, I must apportion liability between the parties. Where the driver of a motor car overtakes a cyclist, the driver of the motor vehicle has a duty to the cyclist to overtake in as safe a manner as the circumstances permit. In this case the defendant should have given "a wide berth" to the plaintiff. She failed to do so. There was no oncoming traffic and there was no reason therefore why she should not have moved to the middle of the road prior to overtaking so that, if the cyclist acted erratically, she would be in a position to avoid a collision. The extent of her duty to the plaintiff is reflected in the fact that she was driving a motor vehicle and he was riding a bicycle. The plaintiff as a cyclist was much more vulnerable to injury than the defendant who was driving a motor car. The defendant was driving the overtaking vehicle approaching from the rear. A combination of those circumstances placed upon her the duty to drive at a safe speed and at a safe distance from the plaintiff prior to and during the overtaking manoeuvre. She failed to do so. 39. As to the plaintiff, he moved without warning into the path of the defendant's vehicle. There was no indication that he would do so and, in light of my findings as to the respective paths travelled by the two vehicles prior to the plaintiff moving to the right, the defendant could have reasonably expected the plaintiff to continue in a southerly direction along Brookvale Road as she proceeded to overtake him. Both the plaintiff and the defendant had a duty, one to the other, to drive defensively. Instead the plaintiff moved into the path of the defendant's vehicle without giving any warning of his intention to do so. It is obvious that he failed to look behind him before executing that move. Had he done so he would have seen the defendant's vehicle and would not have attempted it. It seems to me that, in essence, the position of the plaintiff and the defendant was that the plaintiff created the emergency by moving to his right without warning and the defendant was unable to avoid the emergency because of the speed at which he was travelling and the path taken by her immediately prior to her noticing that the plaintiff moved to his right. In those circumstances I consider that each has contributed equally to the happening of the collision and accordingly liability ought to be apportioned 50 per cent to the defendant and 50 per cent to the plaintiff. DAMAGES

40. The plaintiff was born on 12th October 1971. He completed schooling until the end of year 11 at Gilles Plains High School. In January 1988 he commenced an apprenticeship as a diesel mechanic with the Australian National Railways. The apprenticeship was for a period of 4 years. After the collision on 5th January 1990 he was taken by ambulance to the Modbury Hospital and then transferred by ambulance to the Royal Adelaide Hospital. A CT scan revealed a left acute sub-dural haematoma. He immediately underwent a fronto-parietal craniotomy and evacuation of the haematoma. After the operation he was placed in the intensive care unit of the Royal Adelaide Hospital. He remained unconscious for approximately 10 to 14 days after the accident. 41. On 8th January 1990 a further CT scan revealed right-sided extradural haematoma. This was evacuated and he was returned to the intensive care unit where he remained until 14th January 1990. He remained at the Royal Adelaide Hospital until 30th January 1990 when he was transferred to the Julia Farr Centre. On 19th February 1990 he was readmitted to the Royal Adelaide Hospital for further surgery. On recovery from that operation he returned to the Julia Farr Centre on 26th February 1990. He had to be readmitted to the Royal Adelaide Hospital again on 5th March 1990 to deal with complications of subdural collections. 42. On 12th March 1990 the plaintiff was discharged from the Julia Farr Centre. He then commenced attendance at the Payneham Rehabilitation Centre and continued with Rehabilitation until 25th May 1990. On 28th May 1990 he returned to work to resume his apprenticeship. He completed his apprenticeship in January 1992 and at about that time his employment with Australian National Railways ceased. 43. On 30th January 1992 he obtained employment as a diesel mechanic at Bulls Transport Salisbury and he resigned from that position on 7th June 1992 to take up work with O.D. and E Pty Ltd as a lease hand. He remained employed with O.D. and E Pty Ltd until 21st October 1992 and in November 1992 he commenced employment with Northern Machinery at Laura as a diesel mechanic. He is still in that employment With the consent of the defendant the reports of Mr B.P. Brophy, neurosurgeon were tendered and they are exhibit P7. After the evacuation of the extra-dural haematoma the plaintiff made steady progress. It was noted that the plaintiff was suffering from double vision and this was due to a right third nerve palsy. The surgery carried out on 19th February was for bilateral autogenous cranioplasties. The double vision persisted and he was seen by Dr John Crompton in that regard. 44. In his report of 4th January 1991 Mr Brophy said that the plaintiff had never had any seizure problem arising from his head injury but he was taking prophylactic Tegretol. Mr Brophy reviewed the plaintiff on 3rd December 1991. The plaintiff complained of back discomfort, present most of the time. The plaintiff said that he obtains relief from back pain by exercise and keeps himself very fit. He also told Mr Brophy that he had some difficulty remembering the names of people and that that difficulty was being assessed by Dr Michael Wood. Mr Brophy noted that the plaintiff was not taking any medication and that he played squash, ran regularly, rode a bicycle and performed aerobics. On examination Mr Brophy found that the neurological examination was within normal limits. He said that the plaintiff had a good range of spinal movement and found the plaintiff's discomfort to be localised in the thoraco-lumbar region. Mr Brophy thought that the plaintiff had made a good recovery from the injury sustained which he described as "a closed head injury complicated by bilateral intracranial haematomas". He thought that the plaintiff had minimal symptoms of a neuropsychological nature although he suggested that that should be carefully assessed by psychologists. He thought that there was possibly a small risk of epilepsy developing. He was unable to find a cause for the back discomfort although he thought it possible that the plaintiff had sustained some undisclosed soft-tissue injury which "may flare at a later stage". 45. Dr. J.L. Crompton's report of 18th January 1991 was tendered by consent. It is exhibit P9. In the report Dr Crompton dealt with the neuro-ophthalmic complications arising from the plaintiff's injuries. He first saw the plaintiff on 2nd February 1990. On examination he found a residual but resolving traumatic right third cranial nerve palsy as a result of the head injury. The plaintiff was able to fuse the images of the two eyes by adopting a compensatory face turn. However, the plaintiff found it more comfortable to use an eye patch most of the time. Dr Crompton noted that the plaintiff had a "droopy eyelid" and he noticed considerable improvement in that condition. He also noted that the right pupil was decreasing in size. He said that the rest of the neuro-ophthalmic examination was normal and, as at January 1991, predicted a good recovery. He reviewed the plaintiff on 16th March 1990. The plaintiff told him that he had recovered from the double vision some three weeks prior to the 16th March. On examination he found that the plaintiff "had a tendency for the eyes to diverge on extreme up gaze". On examination Dr Crompton found that the "traumatic right third nerve palsy had virtually been completely cured." 46. The plaintiff called Mr Peter Oatey, neurosurgeon, and his report dated 21st February 1992 is exhibit P10. He first saw the plaintiff on 17th February 1992. He estimated the duration of the post traumatic amnesia to be approximately 10 days. His estimate of retrograde amnesia was about 20 minutes. From the hospital notes he observed that on admission to hospital after the accident there was a fixed dilated pupil. This suggested raised intracranial pressure paralysing in the third cranial nerve due to downward herniation of the brain through the tentorium. There appeared to be significant brain dysfunction either from the initial trauma or as a consequence of the intra cranial clots which developed as a result of the trauma. 47. The plaintiff complained of scalp tenderness and of back pain. He said that he had difficulty in pushing and lifting objects above his head. Mr Oatey noted that the plaintiff had good flexibility and could bend well. He also noted that he played squash, ran and performed aerobics. 48. On neurological examination he noticed some decreased sense of smell on the left. There was no indication of significant frontal lobe injury. He carried out some neuropsycological testing. 49. He thought that the risk of epileptic seizure in the future was low - in evidence he said as low as 2 per cent or 3 per cent. He thought that the bone flaps in the area of the cranioplasties were "a little soft" and that future operative treatment to improve protection from the skull may be necessary. He thought that there was probably some neuropsychological impairment and some diminution of the rapid reflex responses and ability to concentrate and learn and retain new information. He said that from "the neuropsychological viewpoint and from the viewpoint of fine motor function I am unable to objectively quantitate any long term impairment but suspect that this may be in the region of 5 per cent". 50. In evidence he said that there was a relationship between injury to the left temporal lobe and the function of short term memory. He thought from his examination that short term memory was reasonable but he noted that the plaintiff complained that he had difficulty with new learning which he said provided subjective evidence that there was difficulty with learning and retaining new information. He also said that mood and personality change was consistent with the head injury sustained by the plaintiff. 51. Mr Oatey thought that, from the point of view of the plaintiff's work, he would be somewhat slower in his mechanical work than would otherwise be the case, although he thought from a physical point of view the plaintiff "functions quite nicely". He said that stress diminishes the plaintiff's ability to cope so that he would perform better in the work situation if he has more time to carry out particular tasks. Although he thought that there was a possibility that the plaintiff's condition may improve in the future, such improvement would be difficult to measure and any change for the better would be relatively minimal. 52. In relation to future operative treatment he thought that if the plaintiff were to undertake any body contact sports it might be appropriate for a titanium plate to be inserted to strengthen the skull. 53. He agreed that the neuropsychological tests carried out by neuropsychologists were more sophisticated than those carried out by neurosurgeons and are a better guide to the extent of neurological deficit following head injury. However he qualified this to some degree when he said, at page 405.26-34: "Certainly more accurately than a neurosurgeon can, but I would like to add, sometimes in the final analysis the patient's history is a very important issue, and neuropsychological testing, whilst it is much better than my neurosurgical testing, I think there are elements, where in the end one has to consider what the patient says and what other people say about him, as to the significance of that, but yes, certainly the neuropsychology tests of memory are very good now." 54. The reports of Dr Michael Wood, were tendered in evidence. They are exhibit P8. In his report of 6th April 1991 Dr Wood said that he interviewed the plaintiff on 25th March and 6th of April 1991. The plaintiff said that his reflexes were slower and that his coordination was not as good as prior to the accident. He also complained of impaired memory. He said that the plaintiff "is aware that he has to put a great deal more effort into his work to achieve similar results as he would have obtained prior to the accident." The plaintiff told Dr Wood that he became depressed at times. in his report of 6th April 1991 Dr Wood said:-
    "Formal intellectual assessment indicated that Mr Zilm
    is currently functioning in the average range. On the basis of
    a word pronunciation test and his academic record it is
    estimated that he had function in the average range prior to the
    accident and the estimate of premorbid functioning was very
    close to that actually determined by testing. It was noted
    however that he was slow on a coding task which is timed." 55. However some testing did indicate some impairment. Dr Wood said:-
    "On the basis of the tests carried out he is currently
    functioning intellectually in the average range. There was some
    indication that he was slower than expected on a timed coding
    test which tends to be sensitive to the effects of brain trauma.
    On a well standardised test using meaningful information there
    was no indication of any memory impairment for the retention of
    either verbal or visual information. However, there was some
    evidence that he has impaired ability to learn more complex
    unrelation information, which is consistent with the effects of
    a severe closed head injury." 56. Later he said:- "His history since the accident does support the view that he can retain information gained from formal instruction although it requires considerably more effort on his part." 57. Dr Wood saw the plaintiff again on 30th March 1993. He noted an improvement in cognitive functioning. The history taken on this occasion indicated that the plaintiff became frustrated and angry and that he continued to have bouts of depression. Dr Wood thought that the difficulty that the plaintiff experienced in controlling his emotions may be related to his brain injury although he found no evidence of such an interrelationship on formal testing. 58. The defendant called Mr Mark Reid, a neuropsychologist whose report of 23rd November 1992 is exhibit D31. Mr Reid's conclusions were not dissimilar to those of Dr Wood. He carried out similar testing. He said that although he was unable to demonstrate any residual cognitive deficits, it was likely that the plaintiff had some mild "high level" deficits perhaps under adverse conditions only such as tiredness. Despite that he thought that the plaintiff should be able to cope with cognitive tasks consistent with his intellectual level. In evidence he said that he had noted that when Dr Wood performed the Rey Auditory Verbal Learning Test the plaintiff had some difficulty with that. He also noted that the plaintiff had had difficulty with a test involving a coding task. When equivalent tests were performed by Mr Reid the plaintiff, according to Mr Reid, achieved the tasks set within the range of average intelligence without difficulty. He thought that the plaintiff's memory was normal and that his ability to learn was normal. He was of the view that if the plaintiff did have a memory impairment it was not as a result of the head injury sustained by him in the accident. 59. He also explained in his evidence what he meant by "high level" deficit. He explained that in a test situation a psychologist was not necessarily able to duplicate the stresses and complexities of working life. To that extent problems with concentration and memory might not be picked up. He allowed for the possibility that to some extent the memory deficit and lack of concentration complained of by the plaintiff may occur when he is under stress at work. Nevertheless, it remained the opinion of Mr Reid that whatever problems the plaintiff may have in relation to cognitive performance, it was not related to acquired brain damage. This contrasts with Mr Oatey's evidence and to a lesser degree that of Dr Wood. Mr Oatey in particular was of the view that the difficulties experienced by the plaintiff with cognitive performance may well be attributable to the head injury. In these circumstances the evidence of the plaintiff and the evidence of those witnesses who observed the personality and performance of the plaintiff both before and after the accident assume some significance. 60. The effect of the plaintiff's evidence, which is corroborated by the evidence of Mr Scott, Mr Hills, Mr David Zilm the plaintiff's father and Mr Thompson the plaintiff's present employer, is that since the accident he has been able to achieve the same performance but it has required a great deal more effort. I bear in mind that Mr Scott's evidence as to the plaintiff's work performance before and after the accident is limited to his observations before the accident and up to the completion of the plaintiff's apprenticeship. In addition, Mr Thompson has only observed the plaintiff's work performance for the last twelve months. The plaintiff's father was only able to give evidence as to his observations outside the work situation. The evidence of Mr Hills, however, is useful both as to pre and post accident observations. Bearing all that evidence in mind and allowing for its limitations, there nevertheless emerges a strong case to the effect, that 30 in particular, the plaintiff's work performance has been less than that which he achieved prior to the accident. In arriving at that conclusion I have specifically excluded from consideration the evidence to which I shall shortly turn, relating to the plaintiff's complaints about injury to his back and neck. That aspect of the plaintiff's claim needs to be the subject of separate consideration. Notwithstanding the opinions expressed by Mr Reid, I am of the view that the plaintiff has established on the balance of probabilities that his intellectual performance since the accident was not as good as that as prior to the accident. I do not consider the intellectual impairment to be other than mild and the impairment, such as it is, only relates to short-term memory and the ability to learn. 61. In arriving at the above conclusions relating to intellectual deficit, I have taken into account the evidence of Mr Stilwell a psychologist who was called by the plaintiff. His report is exhibit P13. He administered a number of tests but they were not neuropsycological tests. Nevertheless some of the tests performed by Mr Stilwell gave an indication of intellectual functioning. 62. In his report Mr Stilwell provided a summary of his findings. He said:-
     "Although Mr Zilm presents in the interview situation as
    a genuine, highly motivated person who will attempt to press on
    in the face of his disabilities, he is extremely vulnerable on
    the open labour market. He has quite massive mood swings and
    bouts of depression and the lack of confidence with spontaneous
    anger outbursts, which are reflected directly in his personality
    profile. He has ongoing memory and concentration problems.
     He is not academically inclined, is extremely anxious, tense,
    frustrated and with a negative self concept. He continues to
    suffer quite pronounced and significant physical disabilities,
    making the likelihood of returning to his current employment for
    the indefinite future very unlikely, together with reducing his
    prospects of regaining other employment on the open labour
    market. I believe that work as a diesel mechanic would have
    suited him ideally in view of all of the results of
    psychological appraisal and personal presentation at interview,
    together with consideration of his employment and educational
    background, had it not been for the significant disabilities
    resulting from the subject motor accident. I believe that his
    overall employment prospects have been severely diminished and I
    have grave reservations about his ability to gain employment on
    the open labour market into the future." 63. In my view, when the evidence of the plaintiff given at trial is considered and taken in conjunction with the reports of the neuropsycologists, the picture painted by Mr Stilwell is too gloomy. I would agree that the plaintiff has experienced mood swings but I would not call them "massive". Spontaneous outbursts of anger have occurred but I do not consider that the plaintiff has a continuing lack of confidence in himself. Quite the contrary impression was created in the witness box. I accept that he has moments of self-doubt but, in my view, he obviously has the strength of character not to let such doubts unduly interfere with his work performance. I do not consider the plaintiff to be "extremely anxious, tense, frustrated and with a negative self concept". The indications are to the contrary when the evidence of the neuropsychologists is considered. 64. The plaintiff said in evidence that he only became aware of pain in his neck and back whilst he was at the Julia Farr Centre. Even then no particular difficulty was caused. He was more concerned with his head injury. However, as his rehabilitation continued and the time for return to work approached, he became more conscious of pain and disability in his back and neck. This awareness increased after he returned to work. 65. It is, in my view, readily apparent that the plaintiff must have suffered injury to his body in addition to the head injury. When the car collided with his bicycle he was dislodged from the bicycle, hit the bonnet of the car and then the windscreen with such force that he shattered the windscreen; he then rolled off the car and rolled along the road for quite some distance. The plaintiff said that he first became aware of the neck and back injuries when he was at the Julia Farr Centre recuperating from his head injury. He was questioned as to why he had not earlier complained of back and neck injury, and his answer was, not surprisingly, that he had up till then been more concerned with his head injury. I accept without reservation that the plaintiff suffered soft tissue damage to his neck and back as a result of the collision and that those injuries have left him with disabilities. He still suffers from tense muscles in the neck which he relieves by stretching exercises. It is difficult to say when this aspect of his injuries will resolve. It seems to me that there has been gradual improvement in the neck injury since the accident and his neck is unlikely to trouble him after one or two years from now. 66. I accept the plaintiff's evidence that since the accident, and more particularly since his return to work, he has had difficulties with his back and neck. He now has to be quite careful as to how he lifts heavy objects and he has particular difficulty when lifting heavy objects above his head. While some of the evidence given by Dr Jose, an orthopaedic surgeon called by the defendant, may be said to support the contention that the back and neck injuries did not necessarily occur as a result of the collision, I have no hesitation in finding that the plaintiff's neck and back were damaged in the collision such that when the effects of the serious head injury sustained by him began to wear off, the neck and back injury became apparent. I consider, and so find, that the back disability has persisted since the return by the plaintiff to his apprenticeship and during the employment that he has managed to obtain and remain with since then. I accept that when the plaintiff was employed with Bulls' Engineering and subsequently with O.D. and E Pty Ltd the nature of the work was on occasion so physically demanding that it was too much for him in light of his back injury and to a lesser extent the injury to his neck. The plaintiff may have had other reasons for changing employment but I consider it unlikely that he would be able to continue with the heavy work involved on a permanent basis. I consider that he is just able to cope with his present employment. That is evident from the evidence of his employer Mr Thompson. 67. The plaintiff called Professor Dennis Smith. He is an expert in rehabilitation medicine. His reports are exhibit P6. In his report of 6th June 1991 he said that the injury to the plaintiff's back may well have consisted of an annular disc tear at the L3-4 level. He saw the plaintiff on the 3rd December 1991 after an MRI scan had been performed. The scan revealed that there was no evidence of disc herniation although degeneration at the L4-5 level was noted. He noted the plaintiff's main complaint was of back pain made worse by lying in unaccustomed positions for any length of time. He thought that that pain was likely to continue for another 5 or 6 years and it could be permanent. He was of the view that the plaintiff's employability on the open market was likely to be very limited. 68. The defendant called Mr Geoffrey Jose, an orthopaedic surgeon, whose reports are exhibit D32. He saw the plaintiff on 25th August 1992. He noted a full range of movement in the cervical spine and an excellent range of back movement. He noted that the plaintiff had some difficulty with lateral flexion of the spine giving rise to mid-lumbar pain. He said that the plaintiff was tender over the lower three lumbar interspaces, probably maximal at around L4 spinous process. In his report of 25th August 1992, at page 8, he said:-

    "My opinion would be that undoubtedly he did have some
    soft tissue straining to his neck and low back, the degree of
    which is not possible to tell. I do not believe he had any
    significant disc injury. The appearances shown in the MR
    scanning are not necessarily the result of any injury. Through
    the general straining of these areas he may have a tendency to
    stiffen which I think will improve rather than worsen and would
    most respond to stretching exercises and massage rather than
    repeated manipulative treatment which I believe only tends in
    the long run to aggravate the stiffening and so long as he can
    help himself with his own stretching exercises he should rely
    very largely on that." 69. As to the presence of degeneration in the lumbar spine it was Professor Smith's view that this was not caused by the accident but was probably pre-existing. He nevertheless thought that the condition would have been aggravated by the accident such that symptoms were produced. He thought that the plaintiff should refrain from unusual heavy lifting, ie, lifting heavy objects in awkward positions. 70. On the basis of the evidence of Mr Jose and Professor Smith, I find that the plaintiff sustained soft tissue damage to the lumbar spine and that this has restricted, and will continue to restrict the plaintiff in his work as a diesel mechanic. In particular he has been, and will be indefinitely, precluded from lifting heavy objects in awkward positions. It is evident from the evidence of the plaintiff that there is a continual requirement to work in confined spaces and in awkward positions doing heavy work. Consequently the injury to his back has constituted and will continue to constitute a significant disability. 71. When the mild cognitive defects suffered by the plaintiff are taken in conjunction with his physical limitations in relation to the back, and to a lesser degree, the neck, the plaintiff has, and I so find, a significant disability. The disability is most apparent with his employment, although the impairments affect adversely his life outside the employment sphere. In so far as his ability to retain employment is concerned. I have taken into account, as well as the evidence of Mr Jose and Professor Smith, the evidence of Dr Mills, an occupational phycisian called by the plaintiff. I am of the view that it is likely that the plaintiff will be able to continue with his present employment so long as he continues with the determination to work effectively as a diesel mechanic. However, his limitations impose constraints which affect the quality of his life. He no longer obtains the same satisfaction with his employment as he did previously. In his social life he is not the outgoing personality that he used to be. 72. I turn to a consideration of the various heads of loss claimed by the plaintiff. Past special damages have been agreed in the sum of $26,667.50 and I award that sum. 73. Damages have been claimed in accordance with the entitlement enunciated in Wilson v McLeay and Beck v Farrelly. The evidence of benefit to the plaintiff under both heads is a matter of inference because no detailed evidence was called in that regard. It is clear to me that the plaintiff derived benefit from the visits of his parents to hospital and the Julia Farr Centre and that he was looked after by both of them when he eventually returned home. A modest sum has been sought in the sum of $1500. I consider that to be a reasonable claim and I award that sum. 74. Damages for non-economic loss are to be assessed by reference to the provisions of section 35a of the Wrongs Act 1936. In summary the plaintiff sustained severe head injury from which he has made a remarkable recovery. He has been left with mild cognitive deficiencies which affect his quality of life and his employment. He also sustained moderate soft tissue damage to the neck and lumbar spine which will resolve with the passage of time. I have to assign a number between 0 and 60 as a reflection of the severity of the injuries. I consider the the appropriate number to fix is 20. The prescribed multiplier is $1240. I award the sum of $24,800 damages for non-economic loss. 75. As to past loss of earning capacity, the plaintiff was totally incapacitated from 6th January 1990 to 25th May 1990 when he resumed his apprenticeship. He continued with his apprenticeship until 21st January 1992. His employment with the Australian National Railways was terminated in February 37 1992. He then obtained employment with Bulls' Transport until June 1982. He left that employment and obtained employment with O.D. and E. Pty Ltd where his average weekly gross pay was $720. Although the heavy work undertaken by him in his employment with O.D. and E. Pty Ltd was a factor in his decision to leave that employment and take up employment with Northern Machinery at Laura in November 1992, it was not the only reason for that decision. As a floorman he was working out of his trade and he wanted to maintain his trade skills. However, I accept that he had had difficulty in coping with the heavy work which formed part of his employment with O.D. and E. Pty Ltd.. I also accept that, but for the injury, it is likely that he would have continued with the more remunerative work for a longer period of time. It is common ground the he was paid income maintenance amounting to $5,713.88. I agree with the plaintiff's submission that that does not represent a proper amount to be awarded for past loss of earning capacity. He had the capacity to earn significantly more than the amount payable to him as a diesel mechanic by Northern Machinery. This is evidenced by his employment with O.D. and E. Pty Ltd.. For approximately 12 months prior to trial his average gross wage with Northern Machinery, as appears from exhibit P33, was $453.86. When making an allowance for taxation the difference between the wages paid by O.D. and E. Pty Ltd and northern Machinery is approximately $180 per week. I consider it appropriate to allow for loss during this period in the manner contended for by the plaintiff. The loss amounts to approximately $9000. This needs to be added to the gross amount paid by way of income maintenance, namely $5713.88. Taking a broad axe approach, I award the sum of $15,000 for past loss of earning capacity. 76. As to the future, the actuarial certificate exhibit P15 indicates that the appropriate multiplier applicable to the plaintiff until age 65 at a discount rate of 5 percent is $910. Given my conclusions as to economic loss in the past, it follows that the current difference between what the plaintiff is presently earning and what he might have earned as a young man but for the accident is approximately $180. This produces a gross amount of $163,800. That figure must be discounted to reflect the position that it is unlikely that the plaintiff would have continued in the more highly paid jobs indefinitely. He may have done so for the next 3 or 4 years, but I consider it unlikely that he would have continued in such employment once he married and had children. I must also take into account my findings that the plaintiff's ability to retain and obtain employment has been affected by his cognitive and physical disabilities. The latter, as I have said, will resolve with time. The former are permanent. I must allow for the possibility that he may lose his current employment and if he does so, then I consider that he may have some difficulty in gaining further employment. I think that the likelihood is that he will remain largely in employment for the remainder of his working life. In all the circumstances I consider that damages for future loss of earning capacity ought to be assessed in the sum of $100,000. 77. The plaintiff claims for future medical expenses. There is only a slight risk of epilepsy in the future and there is no other evidence of the plaintiff incurring expenses in the future relating to his disabilities. I consider that an award in the sum of $3000 under this heading is appropriate. 78. In summary my assessment is as follows:-
    Non economic loss   24,800.00
    Loss of earning capacity
     Past   15,000.00
     Future   100,000.00
    Special Damages
     Past   26,667.50
     Future  3,000.00
    Gratuitous Services etc                 1,500.00
            Total  $170,967.50 Damages are to be reduced by 50 per cent. I will hear counsel as to interest and costs.