Maycock v Armidale Dumaresq Council
[2007] NSWDC 301
•26 September 2007
CITATION: Maycock v Armidale Dumaresq Council [2007] NSWDC 301 HEARING DATE(S): 17, 18, and 19 September 2007
JUDGMENT DATE:
26 September 2007JURISDICTION: Civil JUDGMENT OF: Johnstone DCJ at 1 DECISION: Verdict and judgment for the plaintiff for $67,734.08 CATCHWORDS: NEGLIGENCE - extensive loose gravel left on the road by the Council from roadworks, causing plaintiff on motorcycle to lose traction and fall - no warning signs - the risk was not an obvious risk - the response of the Council to the risk was inadequate - contributory negligence: 20% LEGISLATION CITED: Civil Liability Act 2002: s 5F, s 5G(1) and s 16(3) CASES CITED: Barisic v Devenport [1978] 2 NSWLR 111
British Fame (Owners) v Macgregor (Owners) (1943) AC 197 at 201
C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [112]
Knight v McLean [2002] NSWCA 314 at [61]
Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529 at 532-3
Sheldrick v State of New South Wales [2007] NSWCA 105 at [53]
Wyong Shire Council v Shirt (1979-80) 48 CLR 40PARTIES: Mathew Paul Maycock (Plaintiff)
Armidale Dumaresq Council (Defendant)FILE NUMBER(S): 23/05 at Armidale COUNSEL: Mr G Gemmel (Plaintiff)
Mr Hickey (Defendant)SOLICITORS: Rice Moore & Gibson (Plaintiff)
DLA Phillips Fox, Lawyers (Defendant)
JUDGMENT
Introduction
1. Mr Maycock was injured in an accident while riding his motorcycle in the streets of Armidale. As he was turning a corner, the front wheel of the motorcycle struck some loose gravel left on the road by the Council from roadworks it was carrying out. Mr Maycock said that the gravel left on the road was excessive. This caused his motorcycle to lose traction, resulting in the accident in which he was thrown off the motorcycle, injuring his left shoulder and damaging his motorcycle. He said that he was not aware of the presence of the loose gravel, and that the Council should have either cleaned it up, or erected appropriate warning signs. He sued the Council alleging negligence.
2. The Council’s case was that the loose gravel left on the road from the roadworks was not excessive, but even if it was, the risk was obvious, and Mr Maycock is to be presumed to have been aware of the risk of harm: s 5F and s 5G of the Civil Liability Act 2002 (the Act). In the circumstances, Mr Maycock should have avoided the risk and negotiated the corner safely. The Council denied liability. In the alternative, it alleged contributory negligence.
3. The issues relating to liability are, in summary:
· Was the loose gravel left on the road excessive?
· Whether the risk was an obvious risk: s 5F of the Act.
· If so, did Mr Maycock prove he was not aware of the risk: s 5G of the Act.
· Whether Mr Maycock was guilty of contributory negligence.
The accident
4. Mr Maycock lived at No 5 Jones Avenue, Armidale, where he kept a Harley-Davidson motorcycle that was his pride and joy, which he had bought in 1989 for $19,000.00. He rode the motorcycle on a recreational basis, but also had a car that he used for driving to work and for other purposes. He had ridden motorcycles for most of his life, from about the age of 10, and had never before had an accident.
5. The accident occurred on a Sunday, 18 May 2003. In the two weeks before the Council, as the responsible authority, had been carrying out roadworks in Jones Avenue, which ran in an “L” shape, north from Simmons Avenue at one end, then east to Canambe Street at the other end: see Exhibit B. Mr Maycock’s house was on the corner of the “L”. It was his habit to proceed to and from his house east and west along Jones Avenue from his house, due to the direct access that provided to Dumaresq Street, rather than to use the Simmons Avenue route. He said he did not recall when he had last used the Simmons Street route. Although he was aware of the roadworks, and there had been roadwork signs in Jones Avenue in the weeks before, they were not there that day. Asked whether he was aware of the gravel at the corner of Jones Avenue and Simmons Street before his accident, he said, “Not really”.
6. On the afternoon of the accident he left his house on his motorcycle, with a friend as pillion, and proceeded east along Jones Avenue, across Canambe Street into Dumaresq Street. He first went to the Civic Video shop in Rusden Street and collected a video. From there he dropped his friend off at his place in Kentucky Street. He then set off home, and turned into Canambe Street. Because he was coming from the south, he turned right into Simmons Street with a view to entering Jones Avenue from that direction. He reached the corner and began turning left into Jones Avenue. It was about 4.00pm, getting dark, and he said that he did not see any danger ahead. He was not looking directly down at the roadway in front of his wheel, as the configuration of the motorcycle seat positioned him at a slight backward angle. He was, however, looking ahead to where he was going. As he approached the corner he was travelling at a normal speed of about 20 to 25 kph, slowing down as he turned. As he came round into Jones Avenue, suddenly his front wheel hit loose gravel left from the Council’s roadworks, slid to the right, and ‘washed out’. He fell to the left. The primary of the motorcycle struck the road, whereupon it flipped back up and over to the right, throwing Mr Maycock over the handlebars onto the road, where he landed on his left shoulder. Such an event is commonly known as a ‘high-side’. It all happened in a matter of seconds. Although the manner in which the accident occurred was initially an issue, due to an affidavit sworn by Mr Maycock on 19 October 2005, by the end of the evidence it was no longer disputed by the Council that the accident occurred by way of a “high-side”. This was because of the fresh damage to the motorcycle on both the left and right sides, which was consistent with a “high-side” accident. I will come to the affidavit below.
7. Mr Maycock’s evidence was that had he known the extent of the loose gravel, or if there had been warning signs in Simmons Avenue, he would have negotiated the corner differently, by taking a wider arc involving less lean, and possibly by slowing down. As it was, everything happened very quickly and as the front wheels slid, he was unable to correct the motorcycle or apply the brakes. In any event, it is not appropriate to apply the brakes in loose gravel.
8. Mr Maycock was cut and bruised and felt a sharp pain in his left shoulder, but managed to dust himself off and pick up his motorcycle, which was damaged. As he did so, he noticed there was a lot of gravel all over the road where the accident occurred. He then went home with his motorcycle. From there he went by taxi to the Armidale Hospital, where he was x-rayed and diagnosed as having damaged his collarbone. He was given an icepack and painkillers then sent home. The next day he went to see his general practitioner for further treatment.
9. Also on the next day, he took his video camera and filmed the scene of his accident and the damage to his motorcycle: see the DVD being Exhibit C. The video also had audio and as well as what the camera depicted, there were sounds, including commentary by Mr Maycock, to which I will refer. The scene of the accident depicted in the DVD was largely unchanged from the previous evening, but the filming was taken in the morning, when the light was better. The point of the accident is clearly indicated by the long skid marks, at a point where there is a substantial amount of loose gravel. This is evident not just from a visual perspective, but there was also a clearly audible crunching sound of gravel underfoot. It is true that there is a section of new work that is of a different colouration, adjacent to the kerb in Jones Avenue, but the loose gravel does not extend beyond the alignment of the Simmons Street kerb, and would not be visible to someone proceeding down Simmons Street looking straight ahead. Nor am I satisfied that it would have been visible to a motorist or motorcyclist in Simmons Street until the vehicle was virtually into the corner. It was suggested that there was a tree that obscured the line of sight, but that tree was not in the line of vision to the point where the accident occurred. The kerb itself partially obscured the surface of Jones Avenue, but more importantly, having regard to the fading light, the loose gravel on the surface did not stand out in a differentiated way from the embedded aggregate in the carriageway, and was simply not discernible from a distance. I find, therefore, that Mr Maycock did not see the loose gravel, and could not have seen it from his motorcycle as he approached the corner.
10. There was, however, other relevant probative material disclosed on the DVD. During the course of videoing the scene of the accident Mr Maycock says things like: “This is the stuff I slipped on”, and, “This has been like this for the last couple of weeks”, and “This is the loose gravel that caused the accident”, and, “If the loose gravel hadn’t been here, the accident would not have happened”. Not unexpectedly, he was cross-examined about these comments. It was put to him that he knew the gravel was there and had been there for a couple of weeks. He said that he had been referring to the other end of the street, near his house. It is clear from the DVD that the extent of loose gravel on the surface of Jones Avenue varied from location to location, and it is likely that it changed from day to day as the roadworks progressed. It is clear that Mr Maycock knew there had been loose gravel around on Jones Avenue from the roadworks over the preceding weeks. Indeed he admitted having seen it from his house and acknowledged that there had been roadworks signs along the street. The evidence does not disclose whether there was loose gravel on Jones Avenue between his house and Canambe Street. In my view, it is more probable than not that, although he was generally aware that there had been loose gravel in his street in preceding days, and he should have been aware of the possibility of loose gravel remaining in parts of the street, he was unaware of the extent of the loose gravel present on this day at the Simmons Street end of Jones Avenue where the accident occurred.
11. Several days after the accident, Mr Maycock rang the Council to complain, and spoke to Mr Lance Tracy, who in turn spoke to another officer from the Council. It seems that the loose gravel could not be cleaned up because the street sweeper was “off the road”, so Mr Tracy was instructed to put up loose stone signs in the area: see Exhibit A4. Warning signs were then installed in Simmons Street: see Exhibit A5. I pause here to note that the Council did not call any of its officers to give evidence.
12. I come now to the affidavit Mr Maycock swore on 19 October 2005, which was filed and then served on the Council. It is not clear why the affidavit was filed and served, but its contents were misleading and caused considerable evidentiary difficulties at the trial for both parties. Firstly, Mr Maycock swore that he was only travelling at 5 kph when he turned into Jones Avenue (paragraph 22). Second, he did not describe a “high-side” accident, rather he swore that the motorcycle slipped from under him and he fell heavily on his left side (paragraph 24). This was inconsistent with what he told the hospital staff on the day of the accident, and the doctor the following day: see Exhibit A7 and A8. Attempts to explain away these untruths as mistakes were unconvincing. In my view, they reflected poorly on the general reliability of Mr Maycock as a witness, such that in areas of doubt, it was appropriate to require independent objective corroboration of his testimony before accepting him at face value.
13. Against this background, I turn to consider the issues requiring determination.
Was the loose gravel left on the road excessive?
14. The first issue to be determined is whether the loose gravel left on the road from the roadworks was excessive. The Council submitted that it was not reasonable to expect that the roadway should be left like a “swept floor” and that some gravel was acceptable. The gravel present was in an “acceptable quantity”. It called no evidence from its own officers, but relied upon the opinion of Mr Stuart-Smith, the expert qualified on its behalf. In his report of 15 June 2006, he said that the video does not appear to show an extensive layer of loose aggregate on the recently sealed surface, and the extent of loose stones appears to be minimal, with only “the odd loose piece of aggregate” being present: see page 10. When I read this I wondered whether I had viewed a different video, because that was not what I saw. It is instructive that in cross-examination he did not recall the crunch of the loose gravel underfoot that I heard on the DVD. Indeed he said he thought the video he observed had no sound.
15. One only has to see and hear the DVD to appreciate that the presence of loose gravel at the site of the accident was excessive. With respect to Mr Stuart-Smith, it was not a case of the odd piece of loose aggregate. The crunching sound and the extent of the skid marks clearly underline how extensive it was.
16. It was common ground between the experts that the greater the amount of loose gravel, the less traction available, and the greater the risk of sliding. The effect of loose gravel on a hard surface underneath is not unlike travelling over marbles. Leaving excessive amounts of loose gravel is not good practice, and is dangerous, more particularly for motorcycles than cars. Where there is excessive loose gravel, it is good practice to either remove it, or at the very least, erect warning signs. Mr Ross Strudwick, the Council’s Property/Investigations Officer, who wrote the investigation report agreed: see Exhibit A5.
17. The risk of injury from excessive loose gravel was indisputably foreseeable. The response of the Council to the risk was inadequate having regard to the probability of an accident and the disproportionate effort and expense required to remove it, or alleviate it: Wyong Shire Council v Shirt (1979-80) 48 CLR 40 at pages 47 - 48. The road should have been swept and cleared of the excessive gravel. At the very least warning signs should have been erected. I am satisfied that if warning signs had been present in Simmons Street, before the accident, Mr Maycock would have responded and negotiated the corner more cautiously, and not skidded.
18. For these reasons I find that the Council was in breach of its duty of care to Mr Maycock. That breach of duty was directly causative of Mr Maycock’s injuries.
Was the risk an obvious risk?
19. The Council contended that the risk, in the circumstances, would have been obvious to a reasonable person in the position of Mr Maycock: s 5F of the Civil Liability Act 2002. He was aware of the presence of gravel from the roadworks that were being carried out, and the signs that had been erected in Jones Avenue. On approaching the corner, he failed to look at the road ahead of him. If he had, he would have seen the loose gravel.
20. The findings I have made, however, lead me to the conclusion that the risk posed by the excessive gravel left from the roadworks was not a risk obvious to Mr Maycock in the circumstances, nor would it have been obvious to a reasonable person in his position. And even if it was, I am satisfied on the balance of probabilities that he was not aware of the risk: s 5G(1).
Was Mr Maycock guilty of contributory negligence?
21. The final issue for determination on liability is whether in the circumstances Mr Maycock failed to take reasonable care for his own safety, thereby contributing to his injuries and loss. The Council carries the onus of proof in this regard.
22. It was submitted for Mr Maycock that I should find that he was not guilty of any contributory negligence. I agree with the submission that I should not make too much of his evidence that he was looking 50-80 metres ahead. It is more probable that he was looking 20 or so metres ahead. In any event I accept that he was looking ahead at the line of his direction of travel, including the corner, and the findings I have already made are such that he would not have seen the excessive gravel around the corner until it was too late to take evasive action. It is, however, incontrovertible that he was aware that there had been loose gravel in his street in preceding days, and he should have been aware of the possibility of loose gravel remaining in parts of the street, including at the corner where the accident occurred. It was, in my view, reasonably foreseeable that there might be excessive gravel left in parts of the street following the roadworks.
23. In these circumstances, it was unreasonable for Mr Maycock to have negotiated the corner in the normal way at normal speed, and in taking reasonable care for his own safety, he should have had regard to the possibility of the presence of excessive loose gravel, taken a less acute arc, travelled more slowly than normal when turning, and stayed more upright, thus minimising the risk of slipping.
24. The determination of the issue of contributory negligence is a question of fact that depends on the circumstances of the particular case: Knight v McLean [2002] NSWCA 314 at [61]. In my view, Mr Maycock’s conduct amounted to a failure to take reasonable care for his own safety. It cannot be dismissed as mere inadvertence or thoughtlessness: Sheldrick v State of New South Wales [2007] NSWCA 105 at [53]. A reasonable person in his circumstances should have been alert to the possible existence of some risk: C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [112].
25. I find, therefore, that it is just and equitable that Mr Maycock’s damages be reduced by reason of his contributory negligence.
26. The question then becomes, to what extent is it just and equitable to reduce his damages. In considering this issue I must take into account his relative culpability in comparison to that of the Council: Barisic v Devenport [1978] 2 NSWLR 111. I am guided also by the statement of principle in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529 at 532-3:
“ A finding on a question of apportionment is a finding upon a “question, not of principle
or of positive findings of fact or law, but of proportion, of balance and relative emphasis,
and of weighing different considerations. It involves an individual choice or discretion,
as to which there may well be a difference of opinion by different minds”: British Fame
(Owners) v Macgregor (Owners) (1943) AC 197 at 201.”
27. In addition to all the factors to which I have adverted in the discussion above, I take into account on the one hand Mr Maycock’s experience as a motorcyclist, which equipped him to know the risks associated with motorcycling, particularly from dangers such as loose gravel, and the difficulties posed to forward vision by the posture required when riding a motorcycle. On the other hand, the simplicity of the means available to the Council for minimising the risk, and its responsibility to the public, acknowledged by Mr Strudwick, persuade me that the Council’s conduct was, in relative terms, appreciably more blameworthy. I assess the contributory negligence of Mr Maycock at 20 per cent.
Damages
28. I turn to the assessment of damages. Mr Maycock was born on 5 September 1971 and is now 36. He was 32 at the time of the accident. As a result of the accident, he was diagnosed with and treated for a Grade III acromioclavicular (AC) joint disruption on the left side.
29. It is his case that the injury to his left shoulder has not recovered and has caused him considerable pain and discomfort. It will never fully recover. Future surgery is indicated to stabilise the dislocated joint. His damaged shoulder has caused him to favour the left arm and shoulder, placing excessive stress and pressure on his right arm, causing problems in that arm. The combination of these disabilities has caused him difficulty in performing his pre-accident duties, resulting in lost earnings and a diminution in his earning capacity. In particular, it was alleged that Mr Maycock was forced, by his ongoing problems, to leave his pre-accident employment, and prevented from receiving certain promotions he would otherwise have achieved. The Council disputes the extent of the impact of the injury and its consequences. It says, in particular, that he has not suffered any significant loss of earnings, having returned to his normal work six weeks after the accident, and his earning capacity is unimpaired.
The injury to the left shoulder
30. The Council’s legal representatives arranged for Mr Maycock to be examined for medico-legal purposes by a Dr Bhattacharyya. However, no report from that doctor was served, from which I infer that it was unhelpful. In the result, the Council served no expert medical evidence. The only report in evidence from a specialist doctor was that of Dr David Duckworth, a well respected orthopaedic surgeon, specialising in shoulder and elbow problems. In the circumstances I have no hesitation in fully accepting the opinion of Dr Duckworth, notwithstanding the considerations discussed above concerning the credit of Mr Maycock, except as to one aspect relating to evidence of degenerative changes having been found in Mr Maycock’s right AC joint subsequent to Dr Duckworth’s examination.
31. Dr Duckworth examined Mr Maycock in May 2006, some 3 years after his accident. He found an obvious deformity around the left AC joint. Elevation was uncomfortable and there were restrictions on rotation and abduction. Surgery was recommended to excise the distal clavicle and stabilise the joint. The doctor considered, however, that the prognosis was guarded and his shoulder will always feel abnormal and cause difficulty with overhead use and heavy lifting.
32. Dr Duckworth was specifically asked to comment on the complaint that Mr Maycock developed right-sided shoulder pain and biceps tendonitis following overuse of his right arm as a result of the injury to the left arm. The doctor said that although Mr Maycock did not describe any problems with his right shoulder at his examination, it was possible that right-sided biceps tendonitis and cuff irritation might develop in that way. However, his right shoulder problems are likely to be addressed by the stabilisation procedure recommended. This would result in him having a shoulder that is aligned, without the clicking sensation he experiences, although it may always cause him pain and some weakness in the overhead position.
33. Mr Maycock said that he has not been able to afford the operation to date, but will undertake the procedure if he recovers damages in this case. The Council submitted that his failure to have the operation is evidence of a failure to mitigate his loss, given that he could have sold his motorcycle if he really wanted the operation. After all, he has been prepared to register and insure it every year since the accident. In my view there is some force in this submission. On balance, however, I accept the submission that it was unreasonable to have expected Mr Maycock to sell the motorcycle, unrepaired, at a loss. Nevertheless, his failure to have the operation is a factor I take into account in assessing the true extent of the effects of the injury on his daily life and his capacity for work.
Out of pocket expenses
34. There is no dispute as to the mathematics in respect of the past out-of-pocket expenses, as set out in the Plaintiff’s Schedule of Damages. The amount claimed is $462.25, and relates to medication, medical expenses and associated travel. The claim accords with the evidence and I am satisfied that the amount is reasonable, appropriately incurred and attributable to the consequences of the accident. I therefore find past out-of-pocket expenses proved in that sum, which together with interest comes to $532.65.
35. As to the future, I am satisfied that Mr Maycock will undergo the surgery recommended by Dr Duckworth, and that he will do so as soon as possible. There is no dispute as to the estimated costs and I am satisfied those future out-of-pocket will amount to $7,446.65, as claimed. In addition, the evidence of Dr Duckworth supports an allowance of an additional small amount for analgesics associated with the occasional need for relief from pain. It is also reasonable to assume some occasional attendances on his general practitioner will be required. In total, therefore, I find future out-of-pocket expenses proved in an amount of $10,000.00.
Past economic loss
36. There is a substantial claim made for past economic loss, of $36,651.00. However, there are a number of features surrounding this claim that need to be examined more closely. It was Mr Maycock’s case that in addition to an initial period off work of 6 weeks, he has lost earnings because he was unable to cope with his pre-accident work, leading to his resignation, further periods of unemployment, and working in alternative, less remunerative jobs. Not only was he incapacitated by his injured left shoulder, but due to favouring that shoulder he developed debilitating symptoms in his right shoulder and arm.
37. When he gave his evidence-in-chief, Mr Maycock blandly asserted that his net pre-accident earnings at Bi-Lo were approximately $550 a week. This was simply untrue, and not supported by the documentary evidence: see Exhibit 11. He then went on to assert a reduction in hours and reduced earnings. But the true position was that he in fact earned more after the accident: see Exhibit 11. This lack of candour led to an attempt to cross-examine Mr Maycock on what his tax returns might disclose. However, he did not produce his tax returns and refused to answer any questions about them on the grounds of self-incrimination. There was, therefore, an aura of doubt around the question of whether Mr Maycock suffered any diminution in his earnings. Attempts to establish such a loss by other corroborative evidence was unconvincing. There was, for example, no evidence from Bi-Lo. There was evidence from a fellow worker, Mr Cubis, to the effect that Mr Maycock was a cheerful, high-spirited worker, who after the accident complained of pain and tended to use his right arm, favouring his left shoulder. But that did not establish either a loss of earnings, or an inability to perform his normal duties. He continued to work at Bi-Lo for a year following the accident, without any evidence of complaint to a supervisor. When resigning in August 2004, he cited personal reasons.
38. The final factor to be considered in evaluating Mr Maycock’s claim of an inability to perform his normal work is the lack of medical support for his position. He did not complain to his general practitioner, nor did he tell Dr Duckworth he was unable to do his normal work. In the result, there is no medical opinion to support his contentions. Such medical evidence as there is, indicates that his right shoulder problems might equally be due to underlying degenerative problems.
39. Having regard to all these factors, and his unreliability as a witness of credit, I am not satisfied that Mr Maycock suffered any loss of earnings due to the accident other than the initial 6 weeks off work.
40. I therefore find that past wage loss is only proved in an amount of $2,149.00. To this must be added superannuation of $236.39 and interest of $477.08, a total of $2,862.47.
Future economic loss
41. Turning to the future, having regard to the findings I have made, I am not satisfied that Mr Maycock is suffering any current actual loss of earnings. He does, however, have a permanent disability that has certain incapacitating features that reduce his capacity to work in employment involving heavy lifting and overhead work. No doubt these limitations will become more significant as he gets older. It must also be taken into account, however, that his physical problems will be improved to some degree by the surgery proposed. It is appropriate to compensate him for this loss by the award of a buffer, which I assess at $25,000.00.
42. There were suggestions of a career path at Bi-Lo involving promotion. Leaving aside the fact that a claim based on potential promotion was not particularised, it is in any event unsupportable on the basis that there is nothing in his physical restrictions that would prevent him from being promoted. In my assessment of him he was not a likely candidate for promotion. Unlike Mr Cubis, he lacked the drive, enthusiasm and ambition to progress much beyond what he had already achieved at Bi-Lo.
43. I am satisfied that the following assumptions about Mr Maycock’s future earning capacity accord with his most likely future circumstances, but for his injury: he would have worked till the age of 65 in the same or similar employment, at similar levels of seniority and at similar levels of earnings. His poor motivation and erratic work pattern is unlikely to have been materially different: s 13 of the Civil Liability Act 2002.
44. There are no special circumstances that are to be taken into account, and I find therefore that the damages that would have been awarded are to be adjusted by reference to an 85% possibility that the events concerned might have occurred but for his injuries, and are thus liable to be discounted by the accepted standard 15% for contingencies.
45. There will, however, be some future wage loss incurred in connection with the proposed surgery. The amount claimed is $3,360.00, and in my view that claim is reasonable and I will allow it.
46. In all the circumstances, I award damages for future economic loss in a total amount of $28,360.00 net. To this I add superannuation at 11% of $3,119.60, producing a total of $31,479.60.
Non-economic loss
47. The Council submitted that I should assess the severity of the non-economic loss (as a proportion of a most extreme case) in the order 17 to 20%. Counsel for Mr Maycock submitted that an appropriate assessment should be at 23%.
48. In assessing the damages for non-economic loss for Mr Maycock, I have regard to the totality of his circumstances. In particular, I take into account his age. He has already suffered over 4 years with pain and discomfort. In particular he has had to perform his work in circumstances where he experiences pain, and has had to favour the injured shoulder. Although not productive of wage loss, he is entitled to be compensated for it by way of general damages. He will have ongoing pain and difficulty for the rest of his life, although this will be alleviated to some extent by the surgery. He will have a permanent slight deformity.
49. Other considerations include the inconvenience of a future operation, and the impact on social and sporting activities, in particular his impaired ability to play golf.
50. I determine that the severity of the non-economic loss as a proportion of a most extreme case is 22%. That produces a statutory amount of $19,000.00: s 16(3) of the Civil Liability Act 2002.
51. I find, therefore, that Mr Maycock’s non-economic loss should be assessed at $19,000.00.
Property damage
52. Mr Maycock claimed property damage of $18,902.63 made up of the estimated cost of cosmetic repairs to his motorcycle of $13,152.63, which was not disputed, and $5,750.00 for the cost of correcting the alignment damage to the motorcycle. The costs estimates are not disputed, but the Council disputed the second of these claims, for the alignment repairs, submitting that if the motorcycle was in registrable condition, then there is nothing to be repaired. In my view, however, Mr Maycock is entitled to have his motorcycle restored to its pre-accident condition.
53. I find, therefore, that the property damage is proved as claimed. Interest of $1,890.26 is claimed and I consider that amount is reasonable, and allow interest accordingly.
54. The damages are, therefore, to be calculated in accordance with the amounts set out in the Table below:
Non-economic loss (20% MEC) Past out-of-pocket expenses (including interest) Past economic loss (including superannuation and interest) Future out-of-pocket expenses Future economic loss (including superannuation) Damage to motorcycle Interest on damage to motorcycle Total damages Less 20% for contributory negligence Net damages
55. I therefore find total damages in accordance with the amount set out above in the Table.
56. The total damages found are reduced by 20% for the contributory negligence, and the net damages to be awarded are as set out in the above Table.
Disposition
57. I therefore enter a verdict for the plaintiff for $67,734.08.
58. I direct the entry of judgment accordingly.
59. I will hear submissions as to the appropriate order as to costs.
60. The exhibits are to remain in court for 28 days, after which period they may be returned to the parties.
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