Morrell v Sestich

[2003] WADC 225

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   MORRELL -v- SESTICH [2003] WADC 225

CORAM:   WISBEY DCJ

HEARD:   19-22 MAY 2003

DELIVERED          :   17 OCTOBER 2003

FILE NO/S:   CIV 976 of 2001

BETWEEN:   JOSHUA MORRELL

Plaintiff

AND

BRYCE LIAM SESTICH
Defendant

Catchwords:

Negligence - Highway - Intersection collision between road train driven by plaintiff, and defendant's sedan which failed to yield right of way when crossing Great Northern Highway
Negligence of defendant - Reduction for contributory negligence of plaintiff for failing to keep proper look out and wear seatbelt
Personal injuries - General damages for significant spinal injury - Assessment of loss of earning capacity

Legislation:

Nil

Result:

Judgment for plaintiff for $208,806

Representation:

Counsel:

Plaintiff:     Mr G Droppert

Defendant:     Mr K N Allan

Solicitors:

Plaintiff:     Dwyer Durack

Defendant:     K N Allan

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

Paul v Rendell (1981) 34 ALR 569

Sibley v Kais (1967) 118 CLR 424

Wilson v McLeay (1961) 106 CLR 523

Case(s) also cited:

Black v Motor Vehicle Insurance Trust [1986] WAR 32

Bresatz v Przibilla (1962) 108 CLR 541

CSR Readymix (Australia) Pty Ltd v Payne (1997) A Tort Rep 81-432

Ford v Barnett (1987) 5 MVR 95

Froom v Butcher [1976] QB 286

Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183

Graham v Baker (1961) 106 CLR 340

Hendrie v Rusli [2000] WASCA 420

Jongen v CSR Ltd (1992) A Tort Rep 81-192

Medlin v State Government Insurance Commission (1995) 182 CLR 1

National Insurance Company of New Zealand Limited v Espagne (1960-1961) 105 CLR 569

Ngo v Honing [2003] WADC 62

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492

Richards v Mills [2003] WASCA 97

Van Gervan v Fenton (1992) 175 CLR 327

Williams v Commissioner for Road Transport and Tramways (NSW) (1933) 50 CLR 258

Wright v Shire of Albany (1993) A Tort Rep 81-239

Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

1. WISBEY DCJ:  Joshua Wayne Morrell was involved in an accident on 20 August 2000 when the Kenworth truck he was driving in a southerly direction on the Great Northern Highway at Millendon, collided with a red sedan driven by the defendant in an easterly direction in Padbury Avenue, at the intersection of Great Northern Highway and Padbury Avenue.  The Kenworth was towing twin trailers and carrying 75 tonnes of sand.  Liability (that is contributory negligence) and quantum are in issue. 

Liability

1. In the statement of claim the plaintiff alleges that the defendant's sedan contravened a stop sign controlling traffic entering the intersection, when by reason of the proximity of the Kenworth it was unsafe to so do.  The defendant admits that he contravened the stop sign, and failed to keep any or proper lookout, but states that the plaintiff was negligent and contributed to the accident by: 

   (1)failing to keep any or proper lookout; 

   (2)travelling at a speed excessive in the circumstances; 

   (3) failing to take any or adequate action to avoid the defendant's sedan when he knew or ought to have known that it would enter the intersection contrary to the dictates of the stop sign and thus impede the path of his truck. 

2. The defendant further pleads that the plaintiff's failure to wear a seatbelt caused or contributed to his injuries. 

3. The plaintiff who left Cataby on the morning of the accident, was travelling south on Great North Highway towards Kewdale.  At the material time he was driving through the Upper Swan where the prescribed speed limit is 80 km/h.  He stated that he was "doing underneath the speed limit".  He confirmed that there were stop signs controlling traffic entering Great Northern Highway from Padbury Avenue.  Great Northern Highway had a single traffic lane in either direction separated by a white line, and there were vineyards on the western side at the approach to the intersection.  The plaintiff stated that as he drew close to Padbury Avenue he observed the defendant's sedan about 15 to 20 metres from the intersection heading east in Padbury Avenue.  He estimated that the defendant was travelling at about 40 to 50 km/h and anticipated that he would stop.  In fact the defendant proceeded into the intersection, slowing down a little in the northbound lane of Great Northern Highway.  The plaintiff stated that he saw people in the defendant's sedan and endeavoured to veer to the left to avoid colliding with the cab, but notwithstanding the right front corner of the truck struck the passenger side of the sedan approximately level with the front left wheel.  Before impact the plaintiff tried to apply the brakes, but was not sure whether the truck was braking at impact.  Following impact the truck careered across to the western side of Great Northern Highway rolling onto the passenger side.  Both trailers overturned. 

4. The plaintiff stated that the truck he was driving had an air assisted driving seat covered with sheepskin.  His evidence was that he did not know whether there was a seatbelt available, apparently because it was not of interest to him as "I don't wear lapbelts in a truck because it creates more problems and restrictions than anything". 

5. When he first observed the defendant's sedan the plaintiff estimated that the truck was 50 or 60 metres from the intersection.  He claimed to have observed the sedan between the righthand windscreen pillar and the driving mirror.  The plaintiff considered that it would have taken a good 100 metres to have brought his laden truck to an abrupt halt, and stated that when he first observed the sedan he would not have been able to bring the truck to a halt prior to the intersection had he desired to do so.  After the truck rolled on its side the defendant ended up rested on the passenger side door and claimed that he then tried to turn the ignition off but had no feeling in his legs.  It appears that it was necessary to use mechanical means to extract him from the truck, and he was evacuated by ambulance to the Swan District Hospital and from there to Royal Perth Hospital. 

6. In cross‑examination the plaintiff stated that his recollection was that as he proceeded along Great Northern Highway there were southbound vehicles in front of and behind him, although he was vague as to detail.  He put the time of the accident at about 7.00 to 7.15 am, and said the sun was just rising.  He stated that he was 50 metres from the intersection when he saw out of the corner of his eye the sedan 15 to 20 metres from the intersection.  He accepted that there was no reason why he would not have seen it earlier had he been looking.  He claimed that when he first observed the sedan it was not obvious that it would enter the intersection.  He kept it under observation and it did not slow down until it entered the northern lane of Great Northern Highway. 

7. The plaintiff confirmed that when the truck rolled onto its side he fell approximately 2½ metres from his position behind the steering wheel onto the passenger door – in fact he stated that he was thrown across the vehicle and hit the passenger side with significant force.  He confirmed that although he did not know whether there was a driver's seatbelt fitted in the vehicle he did not bother to look as he had no intention of wearing it.  He did not pay any regard to the obligation to wear one. 

8. When pressed as to the speed he was travelling prior to impact the plaintiff estimated 60 to 70 km/h but agreed that he had told the police shortly after the accident that he was travelling at 60 km/h.  He stated that his estimate that it would take at least a 100 metres distance to bring the truck to a halt was based on the assumption of a pre‑braking speed of 80 km/h, but even at 60 km/h it would be difficult to bring the truck to a halt in 60 or 70 metres. 

9. He agreed that in his police statement made 1 September 2000 he had indicated that the defendant's sedan was 15 metres from the intersection and travelling about 40 km/h when he first saw it, but was adamant that when he observed the sedan it was reasonable to conclude that it would stop at the intersection. 

10. In re‑examination the plaintiff stated that when he first observed the defendant's car he assumed that it would stop at the stop sign, and that some time after seeing it and it reaching the intersection, he concluded that it was not going to stop.  Thereupon he "reacted and tried to avoid the car and yeah, tried to hit the brakes". 

11. Paul Andrew White, a 40 year old road train operator, witnessed the accident.  He was driving an unladen Volvo road train south on Great Northern Highway proceeding towards Kewdale at 80 km/h, having set the cruise control at that speed.  He stated he had been following the plaintiff's vehicle for about 15 to 20 km, and during that distance the speed limit had changed from 110 to 90 and finally to 80 km/h.  Mr White was keeping a distance of between 50 to 100 metres behind the plaintiff's truck, and it follows from his evidence that shortly before the accident the plaintiff's truck was travelling at 80 km/h. 

12. Mr White stated that Great Northern Highway was straight on its approach to Padbury Avenue, and as he neared the intersection the plaintiff's truck was about 50 metres forward of his vehicle.  He stated that he noticed out of the corner of his eye a red sedan approaching Great Northern Highway from the right.  It did not appear to be slowing, and as it approached the intersection it became apparent that it was not going to stop.  Indeed it went straight through the stop line, colliding with the plaintiff's truck. 

13. Mr White stated that the defendant's sedan was travelling at about 50 km/h and that he would have expected it to have been reducing speed 30 to 40 metres prior to the intersection, but that did not happen.  He formed a view that the sedan and truck would collide at the intersection, and consequently touched his brakes.  He was able to bring his vehicle to a halt on the intersection, but it is to be remembered that it was unladen.  He stated that he would not have been able to stop had the vehicle been loaded.  His recollection was that the plaintiff's truck veered to the left on impact.  He was unable to indicate when the plaintiff's truck braked, but observed that the brake lights were on as it veered to the left. 

14. Mr White said he was approximately 150 metres from the intersection when he observed the defendant's sedan, and that it did not appear to slow down before impact.  After the collision he went across to the plaintiff's truck, pulled out the windscreen, and observed the plaintiff sitting on the passenger side door window with his feet down the side of the seat in what appeared to be a most uncomfortable position.  The plaintiff's truck was at that stage approximately 40 metres south of the intersection. 

15. Mr White felt he could have brought his vehicle to a stop prior to the intersection when he first observed the defendant's sedan, but that at the stage he assumed that the defendant would not stop at the stop line, the position was otherwise.  He would not have been able to stop the vehicle if it was laden, as its stopping distance at 80 km/h was of the order of 100/150 metres. 

16. Insofar as it was relevant to the seatbelt issue, the surgeon, Peter Ronald Woodland, gave evidence that the plaintiff sustained a serious spinal injury, being a burst fracture of the L2 vertebra, caused by a high energy or powerful force fracturing and shattering the vertebral segment in all directions.  Mr Woodland emphasised that he had no expertise in bio‑engineering, but stated that there was evidence that a lapbelt did not necessarily prevent spinal injuries in the thoraco lumbar area, and was commonly associated with that type of injury.  He felt it was impossible to say whether or not the plaintiff's situation would have been better had he been wearing a seatbelt.  He pointed out, however, that if the plaintiff had been wearing the belt he would have been anchored to the driver's seat and would not have been thrown about the cabin ending up in the position he did on the passenger door when the truck rolled on its side. 

17. Mr Woodland agreed in cross‑examination that it was absolutely clear that the plaintiff suffered a burst fracture of the L1/2 vertebra by reason of the forces of the accident, and probably because he was ejected from his seat across to the other side of the cabin when the truck rolled.  He accepted that the plaintiff suffered the burst fracture by reason of the forces imposed upon the spinal column when he was thrown several metres from the driver's position onto the passenger side door – that is that it was the throwing on to the passenger side of the vehicle that caused the injury.  He emphasised, however, that he had seen this type of injury suffered by persons wearing seatbelts. 

18. The defendant did not adduce evidence on liability. 

19. There can be no doubt, and indeed it is conceded, that the defendant was guilty of negligence causative of the accident.  The clear evidence is that he failed to stop at the stop line in accordance with the traffic control sign and yield right of way to the plaintiff's vehicle when by reason of its proximity to the intersection it was necessary so to do.  The evidence is also eloquent of the fact that he failed to keep a proper lookout. 

20. The issue for determination is whether the plaintiff was guilty of negligence which contributed to the accident and/or his injuries, and if so the extent to which his damages should be reduced to reflect that contribution (s 4(1) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947).  In this respect the defendant carries the burden of persuasion. 

21. I found Mr White to be a reliable witness and accept from his evidence that: 

    (1)at all material times the plaintiff was travelling at 80 km/h; 

    (2)at that speed the stopping distance of the truck in an emergency would be at least 100/150 metres; 

    (3)Mr White was about 150 metres from the intersection when he observed the defendant's sedan.  At that stage the plaintiff's vehicle was approximately 75‑80 metres from the intersection and the plaintiff ought also to have observed the defendant's sedan.  In fact it is probable that he would have observed it some time before that had he been keeping a proper lookout; 

    (4)the defendant's sedan was travelling at approximately 50 km/h and did not give any indication that it was slowing down as it approached the intersection; 

    (5)when the defendant's sedan was 40‑50 metres from the intersection Mr White reasonably concluded that it would not stop at the intersection; 

    (6)Mr White did not observe the plaintiff brake or take any other evasive measures until at or immediately prior to collision. 

22. Much of the foregoing is consistent with the plaintiff's evidence. 

23. On all the material I find that when the plaintiff observed the defendant's sedan his truck had almost reached the intersection, indicative of the fact that he was not keeping a proper lookout.  This is confirmed by the fact that there is no evidence that he applied the brakes of the truck prior to reaching the intersection.  Further the speed at which he was travelling was excessive in the circumstances.  The regulated speed limit was 80 km/h but that simply identifies the maximum speed that vehicles may travel.  To travel at 80 km/h in that area at that time of the day with a load of 75 tonnes of sand in a vehicle that of itself would be of considerable tare weight, is clearly negligent, since the capacity to bring that vehicle to an emergency stop in a reasonable distance is greatly restricted.  At the least it required more vigilant attention to the surrounding traffic than maintained by the plaintiff. 

24. The plaintiff's evidence regarding the non‑use of the seatbelt was unequivocal.  He was indifferent as to whether or not there was a seatbelt fitted in the truck since he had no intention of wearing one – there was a conscious disregard of the requirement.  I am satisfied on all the evidence, particularly of Mr Woodland, that the plaintiff sustained the significant spinal injury when and because he was ejected from the driver's seat during the collision.  Indeed the application of commonsense says so.  Whether or not the plaintiff would have sustained any injuries, and if so the nature of those injuries, if he had applied the seatbelt, is purely speculative.  I am satisfied on balance that the spinal injury he received was directly referable to his default, and standing alone would warrant a reduction of 25 per cent. 

25. The plaintiff's negligence in failing to keep a proper lookout and travelling at a speed excessive in the circumstances prevented him from taking any action to avoid the collision, or to lessen the force of the impact.  It materially contributed to the calamity.  As was pointed out in Sibley v Kais (1967) 118 CLR 424 at 427:

    "The obligation of each driver of two vehicles approaching an intersection is to take reasonable care.  What amounts to ' reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected." 

26. The plaintiff did not have his truck sufficiently in hand in all the circumstances.  Taken together with the failure to wear a seatbelt I am of the view that the appropriate overall reduction to reflect his contribution on comparative examination of the degree of culpability of each party is one of 35 per cent. 

Quantum

1. The plaintiff, who was born on 28 November 1972, resides in Wongan Hills with his partner and their two young daughters, and is a bulk freight truck driver.  It appears that he has always lived in the Wongan Hills area.  He left school at the age of 15, having demonstrated rudimentary scholastic achievement.  After leaving school he worked as a mechanic's hand for six months in 1988, thereafter engaged in welding work, and in or about 1995/96 commenced work as a truck driver for Armstrongs Transport Pty Ltd, Wheatbelt Transport, Brad Auhl and Shane Auhl.  Before the accident he engaged in recreational activities including motor cross, basketball, football, water and jet skiing, shooting and fishing; although it is to be observed that he had sold his motor cross bikes prior to the accident preparatory to a trip to the USA.  His social activities appear to have centred around the local hotel, and casual parties. 

2. The plaintiff stated that before the accident he engaged in general and/or bulk carting for Shane Auhl.  He indicated that there was a greater physical component to general cartage, and although there were physical activities to perform with bulk freight such as levelling loads and applying tarpaulins, they were not frequent or exhausting.  He indicated that he was able to handle those duties, including climbing and entering the bin of the truck and levelling out loads with a shovel or by hand, although he experienced low back pain performing such activities.  The plaintiff has engaged in bulk cartage work since the accident but has not been able to return to general freight work. 

3. Immediately before the accident the plaintiff had been working for Mr Brad Auhl, having earlier done the Broome run for him for about four to six months.  Shortly before the accident he had done four Kununurra return trips for Mr Brad Auhl, the proceeds of which he claimed had not been brought to account in his tax returns, although they were recorded in his invoice book (they appear to include the Port Hedland trip during which the accident occurred). 

4. Prior to the accident the plaintiff's general health was good although he was an Insulin dependent diabetic since early childhood, requiring ongoing Insulin intake and a medical examination every year as a condition of retaining a driver's licence. 

1. Following the accident the plaintiff was admitted to the Royal Perth Hospital.  He stated that he had a lack of sensation in the lower limbs, and considerable pain in the lower back.  He was given opiate based analgesics.  After a day and a half he was transferred to Shenton Park Rehabilitation Hospital intensive care where following stabilisation he underwent surgery on 29 August 2000 for what he understood to be "a broken back".  He remained at the hospital for about two months post‑accident and was gradually mobilised with walking aids.  He required catheterisation and medication.  Whilst at Shenton Park he underwent intensive physiotherapy to build up the strength in his leg muscles preparatory to ambulation.  He stated that the rehabilitative component of the hospitalisation was extensive and painful. 

2. Following discharge from hospital he required home assistance for about two months with daily activities such as toileting, showering and dressing.  In addition he was unable to prepare food.  He was assisted in those activities by his partner, and claimed that he required assistance for the majority of the day. 

3. Fortunately, and no doubt due to his commitment to rehabilitation, the plaintiff's physical condition improved, and it appears that from January 2001 he was essentially independent, although clearly experiencing back pain, numbness in the legs, pain above the right knee, and altered sensation about the lower limbs. 

4. Mr Woodland operated to remove metalware from the plaintiff's back on 5 June 2001. 

5. Having recovered from the effects of the surgery the plaintiff underwent vocational rehabilitation, commencing as a buddy driver with Shane Auhl, doing occasional driving and avoiding any manual component.  It appears this commenced at about the end of July 2001.  He began working a few days a week driving for short periods of time, and although he was uncomfortable and experiencing back pain, gradually increased the driving and the hours until Mr Auhl offered him full‑time work commencing the week ending 2 November 2001.  He has remained working as a bulk transport driver with Mr Auhl. 

6. The plaintiff stated that he was discharged from hospital with a supply of medication and has since used Tramal, Oxycodone and Nurofen, (analgesics) and Indocid (an anti‑inflammatory).  He was prescribed Lovan (an anti‑depressant) recently when back pain associated with work activities was getting him down.  He engages in stretching and other exercises (as advised by a physiotherapist) and some bike riding. 

7. Whilst in hospital the plaintiff was visited frequently by his partner and parents who provided him with assistance. 

8. The plaintiff stated that he experiences frequent back aches, sharp pain above his right knee, does not sleep well, and feels fatigued.  Upon waking in the morning he experiences stiffness and discomfort which lessens with activity, although back pain remains.  Sitting in a truck driving for lengthy periods results in  back stiffness.  He indicated that he would drive between 14 to 16 hours a day with a six hour break from Perth to as far as Darwin.  A Darwin return trip took seven days including a day's break in Darwin and the last Darwin trip was about two months prior to the hearing.  At the end of a three day journey the plaintiff was very sore and fatigued.  The driving was not always on sealed roads.  His symptoms increased commensurate with the degree of physical activity, and driving over corrugated gravel roads, a not infrequent occurrence, aggravated his symptoms.  When engaged in the Wongan Hills area the plaintiff would drive about six or seven days in succession. 

9. The plaintiff stated that he experiences difficulty picking up his 1 year old daughter, and is unable to pick up the oldest child.  He also experiences difficulty with every day tasks such as putting on his socks and shoes.  He stated that although his back was not too bad when he recommenced truck driving, it appeared to be worsening.  He is unable to run or jump, but still participates in his hobby of beach fishing.  His symptoms have curtailed his social, sexual and domestic activities – put simply he cannot be as physical as he was pre‑accident.  He stated that he was unable to engage in any heavy maintenance work such as changing the brakes on the vehicles he was operating, although it appeared from his evidence that he does some maintenance work. 

10. The Kununurra trips undertaken prior to the accident took three and a half to four days to complete, and but for the accident the plaintiff would have continued to do the Kununurra run for Brad Auhl.  He was paid $1,210 for the Kununurra run, and expressed the view that had he continued to work for Mr Brad Auhl he would have picked up casual work from other contractors in between the Kununurra trips which involved one week off in every three. 

11. The plaintiff indicated that he did not expect to be able to continue truck driving much longer, and contemplated getting some further educational qualifications to equip him for more sedentary work.  He was contemplating obtaining work as a ranger or APB officer. 

12. The plaintiff's parents in partnership with the father's brother, own and operate an 1,800 hectare farming property in the Wongan Hills area.  The plaintiff stated that he had no intention of going on to the farm, and there had never been any talk of him so doing. 

13. The plaintiff said that he enjoyed his work as a truck driver but it was getting to the point where it was becoming too much for him physically.  Immediately before the accident his driving activities were on a contract basis and as a consequence he did not receive superannuation, annual holidays, public holidays or sick leave.  Those advantages are presently available to him as an employee of Auhls Transport. 

14. The plaintiff's pharmaceutical requirements were purchased from the Wongan Hills Pharmacy but as it is not necessary to obtain a prescription for Nurofen he purchases it as and when required.  The plaintiff produced a printout of his pharmaceutical requirements from the Wongan Hills Pharmacy (Exhibit P4). 

15. In cross‑examination it was put to the plaintiff that although his evidence was that had the accident not occurred he would have worked for Brad Auhl doing the Kununurra run two weeks out of every three and obtained casual work in the non‑run week, the pleaded claim was on the basis that he would have done the run weekly for $1,210 gross, or $890 net, and in addition would get up to $300 net per week for casual jobs.  His explanation for the divergence between the pleadings and the evidence was unsatisfactory.  The misrepresentation carried through into the schedules of loss filed during the pre‑trial conference process, and also in an amended schedule of past and future economic loss dated 16 May 2003.  It was also pointed out to the plaintiff that his claim that he would receive $1,210 gross per Kununurra trip was incorrect since a GST component of $110 was included in that amount.  The plaintiff stated that it was only several days prior to the trial that Mr Brad Auhl explained the arrangement that would have been made in respect of that work. 

16. The plaintiff confirmed that he would have been working on a subcontract basis and would not have received any superannuation contribution, holiday pay or sick leave.  He denied having told Professor Harper that he anticipated going back to the family farm. 

17. The plaintiff's evidence concerning the frequency of his visits to his general practitioner was less than convincing. 

18. In respect to pharmaceutical requirements the plaintiff stated that he was taking the mild anti‑inflammatory and analgesic Nurofen, Oxycodone, and more recently Tramal.  In fact he commenced Tramal about a month prior to trial and additionally commenced an anti‑depressant Lovan.  He agreed that Exhibit P4 demonstrated that he had paid $117 on medication from 1 August 2000 to trial, but claimed that he had taken a lot of medication home from hospital, and endeavoured to do without medication as much as possible.  He also claimed that he had been taking a lot of Nurofen.  He stated that he had been to the local gym at Wongan Hills a few times at a cost of $5 a visit. 

19. The plaintiff confirmed that since returning to work with Mr Auhl, he had been averaging around 50 hours driving a week.  Because he was an employee he was entitled to annual leave, public holidays, sick leave and superannuation.  Although he had worked consistently up until trial he claimed he had been in significant pain and discomfort.  He stated that he had submitted his resignation approximately a month before trial because he had enough of back pain and discomfort and had become depressed about his position.  He confirmed that as a truck driver he was required to have a half hour break after five hours driving, and could only work 14 to 16 hours in any 24 hour period.  He stated that when he was working for Brad Auhl during the Kununurra run it was pretty common for him to return and drive one of Shane Auhl's trucks. 

20. The plaintiff stated that because of his youngest daughter's health problems he was contemplating moving to Perth or Mandurah, and felt that if he did he would have difficulty getting long distance truck driving. 

21. Shane Andrew Auhl, a 36 year old transport operator residing in Wongan Hills, gave evidence that he employed the plaintiff and six other truck drivers.  He stated that he did bulk transport and a general freight transport.  The bulk transport work was related to agriculture and the live export market, and was seasonal and variable.  The general freight work was more consistent.  Depending upon the availability of work, drivers were allocated different duties including vehicle maintenance which involved servicing trucks and trailers and relining brakes.  He confirmed that the plaintiff was driving one of his vehicles when involved in the accident.  He engaged the plaintiff on a buddy driver basis as part of his rehabilitation and when one of his other drivers left, engaged the plaintiff on a full‑time basis.  The plaintiff was engaged in bulk tipper work as he was not suitable for general cartage work.  The bulk freight or bulk tipper work did not involve a physical component.  He was unable to say what would happen if bulk work was not available, as that situation had not arisen.  He denied having any recent discussions concerning the plaintiff's vocational future, but stated that the plaintiff had made mention to him that he did not know whether he could continue the work.  When pressed he stated "he has mentioned that he wasn't sure whether he could continue and very well might have to finish up". 

22. Mr Auhl agreed that at the time of his accident the plaintiff was working for Mr Brad Auhl but was filling in for him as one of his drivers had a week off.  It did not appear from his evidence that had the arrangement with Mr Brad Auhl continued the plaintiff would have been in a position to work for him on any consistent basis in his weeks off.  He suggested that the plaintiff was presently working up to 168 hours a fortnight. 

23. In cross‑examination Mr Auhl confirmed that he made a 9 per cent superannuation contribution and that the plaintiff was entitled to four weeks annual holiday, public holidays and sick leave.  He stated that he was quite satisfied with the plaintiff's work and that there was nothing to indicate to him that the plaintiff was not prepared to continue.  In particular the plaintiff had not submitted his resignation.  In respect of the availability of work he pointed out that his drivers were all full‑time employees and that if work was not available they worked in the shed and earned the basic award of approximately $535 per week. 

24. Bradley John Auhl, Shane Auhl's older brother, operates a transport business at High Wycombe.  He confirmed that he had a contract for the Kununurra run.  The plaintiff had driven for him previously on a Broome run, and had also done the Kununurra run shortly before the accident when he was on holiday in the United States.  He stated that it had been his plan to have the plaintiff and one other driver assist him with the Kununurra run, each doing two weeks on, and one off.  He agreed that during the week off the plaintiff would be at liberty to take other work.  He stated that it was possible for one of his drivers to pick up extra trips to Kununurra during the year if for any reason another driver was unavailable.  Presently Mr Auhl pays his drivers $1,430 per trip of which $130 is a GST component.  At the time of the accident the rate was $1,100 plus a GST component of $110.  He was not able to say when the rate changed.  He pointed out the work involved a heavy manual component of loading and unloading. 

25. Ann Helen Lewis has been the plaintiff's general practitioner for about three years, and managed him since the motor vehicle accident. 

26. In a report of 5 May 2003 Dr Lewis confirmed having reviewed the plaintiff on 29 April 2003 when he informed her that he was stiff and sore on getting out of bed most mornings, and that pain troubled him during the night.  His back loosened up during the day.  She recorded that the plaintiff claimed he had become low and depressed over a four month period prior to the review, and there was a deterioration in his overall functioning which he attributed to a realisation that he would not be able to manage driving for much longer.  Dr Lewis prescribed an anti‑depressant medication Fluoxetine (Lovan) on 23 April 2003.  She was of the view that it was likely that it would get harder and harder for the plaintiff to maintain his truck driving activities, particularly as his injury was likely to give rise to degeneration.  Dr Lewis confirmed that the plaintiff was a diabetic, a condition which required monitoring, but which on her evidence would not appear to have debilitating consequences with appropriate management, although there was an increased risk of cardiovascular disease. 

27. Dr Lewis considered that because of the plaintiff's injuries, work with a heavy physical component and driving, particularly of heavy vehicles, was not satisfactory.  She said "certainly he has been doing it (driving) and he can do it on one level but its how long he can do that for and whether that's going to compound the damage that's already there".  She confirmed that she had prescribed the analgesic Tramal which appears to be somewhat milder and more appropriate than Oxycodone. 

28. Dr Lewis did not feel there was a need for long term counselling, but favoured periodical radiological monitoring of the plaintiff's condition.  She stated that she had seen the plaintiff in respect to his accident caused injuries on 26 October 2000, 9 February, 8 June and 30 October 2001, and 18 March and 23 and 29 April 2003.  The consultation on 18 March 2003 related to a necessary vocational clearance when Dr Lewis certified that the plaintiff was fit to engage in driving duties; and the consultations on 23 and 29 April 2003 appear to be related to preparation for trial. 

29. The orthopaedic and spinal surgeon, Peter Ronald Woodland, attended the plaintiff in the acute phase of his injuries, and has managed him since.  His various reports were received in evidence and confirmed by him. 

30. In his report of 22 August 2000 Mr Woodland recounted the circumstances giving rise to the injury, stating that he first saw the plaintiff on 21 August 2000 when he noted that there had been definite improvement in the loss of sensation in the lower limbs.  On examination Mr Woodland concluded that there was reasonable sensory preservation in the lower limbs, but with some significant weakness on the right.  Radiological reports suggested a relatively minor wedge compression fracture at the L1 level and a more significant fracture at the L2 level; and a CT scan confirmed a comminuted burst fracture at the L2 level with significant canal compromise due to retropulsed fragments.  Bilateral transverse fractures were also noted, as was a flexion compression fracture at L1.  An MRI scan provided additional confirmation.  Mr Woodland was hopeful that the injuries would not result in paraplegia, particularly with appropriate spinal stabilisation. 

31. In his report of 29 August 2000 Mr Woodland confirmed that surgical stabilisation was undertaken on 29 August 2000 by way of application of metal support, namely L1/L3 titanium pedicle screw fixation, and it appears that because of the excellent operative management the plaintiff's condition improved significantly. 

32. On 12 April 2001 Mr Woodland reported: 

    "He sustained severe spinal injuries with a fracture dislocation at the L2 level with near complete paraplegia on arrival in hospital.  With operative treatment he has made outstanding improvement.  He is now walking independently, essentially with no limp and on examination his posture is good.  He has moderate restriction on thoraco lumbar movements but the only abnormality on lower limb neurological assessment is that of absent right ankle jerk and some reduced sensation over the left anterior thigh.  In regard to symptoms Josh was making good progress; he does have some mid lumbar back and bilateral iliac crest discomfort also intermittent pain around the medial aspect of the right knee but overall he's doing extremely well." 

33. In a detailed report to the plaintiff's solicitor dated 16 May 2001 Mr Woodland recorded the plaintiff's description of the accident inter alia as "he told me that a car was driven out from an intersection with no chance of Joshua braking to avoid collision".  He recorded that the plaintiff had been discharged from hospital following surgery on 20 October 2000. 

34. Referring to an assessment made 12 April 2001 Mr Woodland reported: 

    "On specific questioning this man reported discomfort in both buttock/hip regions, also some stiffness in the lower back, worse in the morning.  Nonetheless he avoided medications, taking Paracetemol very sparingly.  …  On examination he looked fit and well, walking normally without limp.  He had excellent posture.  There was a well healed lumbar wound.  There was very minor tenderness at the lower lumbar region, in fact 10 cm below the injured segment.  He had a surprisingly good thoraco lumbar movement with fingertips reaching just below the knees on forward flexion but with about 50% restriction on extension.  In regard to lower limb neurological examination, I could find reduced feeling over the front of the left thigh, also the right ankle jerk was absent.  His lower limb strength was entirely normal, i.e. with no weakness." 

35. Mr Woodland reported that the plaintiff had demonstrated excellent progress, and was of the view that dependent on the exact nature of duties would be able to return to work as a truck driver.  He estimated that the plaintiff had suffered a 45 per cent loss of efficient use of the back.  He did not think that the plaintiff would need any specific ongoing treatment, but may require the use of anti‑inflammatory and analgesic medications from time to time, suggesting that he would have up to a 10 per cent chance of developing significant lumbar back pain or thoraco lumbar junction pain in the long term.  His view was that the plaintiff had made outstanding progress. 

36. On 5 June 2001 Mr Woodland reported that the plaintiff had been admitted to hospital on 5 June 2001 for removal of the screw fixation device and was discharged thereafter with no particular problems. 

37. In a report dated 6 October 2002 Mr Woodland stated that at review on 25 March 2002 approximately 18 months post‑injury it appeared that symptoms had stabilised.  There were the expected residual symptoms including lumbar back ache and stiffness with some aching and numbness involving both thighs.  Mr Woodland reported: 

    "As mentioned above, your extremely well motivated client did indeed return to work as a truck driver, which he had always aimed to do.  Indeed he was working long hours, up to 50 hours per week on average.  I would not modify comments in my last report that he would have the ability to continue working as a truck driver but again I would mention that this would depend on the exact nature of the truck driving duties.  I would still place restrictions on him in regard to lifting and bending.  For example, he would not be expected to lift weights greater than 12 kilograms – 15 kilograms on a regular basis.  Mr Morrell did indeed report some difficulties as a truck driver, including aggravation of symptoms with prolonged sitting.  In my opinion he would have difficulty carrying out some more physical aspects of his work, eg changing truck tyres.  I must say there would still be some doubt whether he would be able to continue working full time as a truck driver in the long term.  However I still feel strongly that he will be able to work in some type of capacity on a full time basis, even if it were not truck driving, eg he should be able to work full time in sedentary/semi mobile type work." 

1. Although accepting that there would be ongoing residual symptoms, Mr Woodland considered the prognosis was favourable. 

2. On 11 November 2002 Mr Woodland wrote to the plaintiff's solicitor confirming the views expressed in his earlier reports that "this highly motivated and skilled young man should be able to stay in the workforce in the long term".  He noted, however, that the plaintiff claimed to be struggling to keep working as a truck driver because of the physical component and symptom aggravation when negotiating uncertain rough road surfaces.  He recommended alternate work, and a sensible ongoing self‑motivated exercise programme. 

3. In a pre‑trial report dated 14 May 2003 Mr Woodland recorded that at review that day the plaintiff stated that he had been suffering increased upper lumbar and lower thoracic pain but notwithstanding continued to work as a truck driver at least 50 hours per week.  He was finding that as time went on he had increased symptoms.  On physical examination there were no significant changes and he retained a reasonable standing posture but moderate restriction of thoraco lumbar movement and straight leg raising. 

4. In a supplementary note Mr Woodland agreed that it was appropriate for the plaintiff to be reviewed by his general practitioner every three months; for specialist orthopaedic review once a year; engagement in physical activity; and a continuation of his pharmaceutical regime. 

5. Mr Woodland's oral testimony confirmed the contents of his reports, both as to diagnosis and prognosis.  In respect to the plaintiff's capacity to lift, Mr Woodland indicated that he would be restricted to weights of 12‑15 kg on a regular basis because although the lifting of heavier weights would not necessarily cause further damage, it would be associated with increased pain.  Dealing with the plaintiff's work capacity Mr Woodland indicated that truck driving covered a wide range of activities and his experience was that straight truck driving on sealed roads should not cause too many problems for someone in the plaintiff's position.  Long haul driving, driving over rough roads, and driving which included a physical component, would cause difficulty.  He emphasised that there was no perfect job for a person in the plaintiff's position. 

6. When asked in re‑examination to address the plaintiff's capacity for truck driving Mr Woodland stated: 

   "You would expect most people with that type of injury to have trouble doing work involving significant physical activity, that is, repetitive bending and lifting or maintaining awkward positions or whatever.  Truck driving is in a grey area and the thing that would concern me most about truck driving is that if his career is dependent on truck driving where he's got to maintain the vehicle, change tyres, mechanical repairs in the outback, changing road, he couldn't do it.  In my opinion if he really – for the rest of his life he had to be expected to do all those things with loading and unloading I agree that he would have trouble.  If it was straight truck driving around town like an oil tanker driver and all they do is you know, turn the steering wheel, he probably would be alright to do that.  …  I fully accept that he would have increased symptoms driving over rough terrain and over long distances and I accept what he tells me basically.  He tells me that on long haul driving he will develop increased symptoms towards the end of the day and I accept that.  Its very consistent with what I would expect with that type of injury." 

7. The plaintiff's partner, Caroline Jane Partington, confirmed that she went with his parents to the Swan Districts Hospital immediately after the accident, and then to Royal Perth Hospital.  Thereafter for a couple of weeks she stayed in Perth so that she could visit the plaintiff in hospital daily.  After returning to Wongan Hills she visited Perth most weekends.  Upon the plaintiff's discharge from hospital she assisted him with his personal needs including showering, toileting and dressing for several months. 

8. She stated that prior to the accident the plaintiff would mow the lawns, chop wood, and do general house maintenance, but these activities and others including moving LPG bottles were now undertaken by his father. 

9. Ms Partington described the difficulties the plaintiff had playing with children, and referred to the curtailment of his sporting and social activities.  She claimed that the plaintiff submitted his resignation about a month prior to the accident, although he did not proceed with it. 

10. The plaintiff was reviewed on 20 May 2002 and 17 April 2003 at the request of his solicitors by the occupational physician, Professor Harper, whose reports dated 20 May 2002 and 22 April 2003 were received in evidence.  In the first report Professor Harper referred to an accident in which the plaintiff was involved during Easter 2001 when the utility he was driving at 80‑90 km/h hit a pig, went into a culvert, and rolled over squashing the cab.  A passenger was killed.  The plaintiff apparently did not receive any injuries or aggravate his back pain on that occasion, which speaks volumes for the recovery he has made. 

11. Professor Harper recorded that the plaintiff indicated that he wished to continue as a truck driver for some time and then manage the family farm, although being restricted in many farming activities.  Professor Harper stated that the plaintiff was capable of driving a truck as at 20 May 2002 but felt that was medically inadvisable.  He concluded the plaintiff had a moderately severe residual disability of the thoraco lumbar spine. 

12. In his report of 22 April 2003 Professor Harper recorded that the plaintiff felt that back pain had increased, and was depressed.  Professor Harper supported the plaintiff's decision to discontinue truck driving and seek alternative employment. 

13. During evidence Professor Harper confirmed the views expressed in his reports.  He somewhat reluctantly supported the reference in his reports to the plaintiff having expressed an interest to go on the family farm.  Professor Harper felt that the plaintiff was fit for full‑time sedentary duties.  He did not seem to consider that there was a necessity for ongoing medical intervention, but supported an exercise programme and medical review. 

14. Professor Harper's notes of his consultation with the plaintiff on 17 April 2003 recorded that the plaintiff said to him:  "I've had enough, its taking too much out of the body and the mind.  I'm going to resign tonight". 

15. Professor Harper's note concerning the discussion about the family farm read: 

    "He said that his interest is to continue driving as long as possible and then go home to the farm which is a grain, sheep and cattle farm.  His plan is to return and run it but the family is talking of selling it so he doesn't really know.  He then says that he would be limited but he felt that he would be able to handle most things." 

16. A book of rehabilitation reports was received in evidence by consent (Exhibit 10). 

17. The plaintiff's father, Wayne Arnold Morrell, gave evidence that his wife, brother, and himself own and operate an 1,800 hectare farming property at Konnongorring via Wongan Hills.  He is 56 years old.  Essentially the plaintiff had never worked on the farm.  Mr Morrell stated that following the accident his wife and himself visited the plaintiff in hospital almost daily for the first week, and thereafter as regularly as possible.  Upon the plaintiff's discharge Mr Morrell visited him frequently at home and carried out odd jobs which he was unable to do such as installing a TV antenna, fixing taps and shifting gas bottles.  He confirmed that since the accident the plaintiff visited the farm from time to time, mainly driving his utility around and going shooting.  Occasionally he went fishing with the plaintiff and observed that on the fishing trips "he tends to get up and stand and stretch quite a lot, especially when you are in a boat rocking around, you know, he can't just sit there on a seat with a fishing rod in his hand for hours on end.  He basically gets up and moves around the boat". 

18. Mr Morrell stated that the farm was not a profitable venture and was of the view that the plaintiff did not have the skills to manage it, nor was there any prospect of him so doing. 

19. The defendant did not give evidence but tendered a wages schedule (Exhibit D2) and the transport workers general award (Exhibit D3). 

Conclusions on quantum

Loss of amenities

1. Mr Woodland, a most impressive witness, has the advantage of being directly involved in the plaintiff's management in the acute phase of his injury and throughout his rehabilitation.  Acceptance of his evidence necessarily leads to a finding that the plaintiff sustained an extremely serious spinal injury, namely a flexion compression fracture at L1 and a comminuted burst fracture at the L2 level with significant canal compromise due to retropulsed fragments.  Additionally there were bilateral transverse fractures.  Clearly in the immediate post‑accident period the plaintiff suffered considerable pain and distress.  Although the injuries had the potential to result in paraplegia, surgical stabilisation undertaken on 29 August 2000 eliminated that possibility.  As a result of Mr Woodland's expert treatment, combined with the plaintiff's very positive attitude to overcome his disabilities, relatively speaking he has made a very satisfactory recovery.  He has returned to work, although with reasonably constant upper lumbar and lower thoracic spine pain particularly exacerbated by long distance driving and other heavy physical activities.  The substance of Mr Woodland's reports and testimony is that the plaintiff is now restricted to the lifting of weights of no more than 12 to 15 kilograms, and to truck driving on sealed roads for reasonable periods of time, absenting any physical component. 

2. It is apparent that the plaintiff's injuries have compromised his capacity to engage in heavy physical activities, and I accept that his condition also limits his capacity to engage in many social, sporting and domestic activities generally expected to be undertaken by a young family man.  Having said that it is to be observed that he engages in beach fishing, which has a reasonable physical component, and has been in full-time employment as a truck driver since November 2001.  The medical evidence establishes that the plaintiff's residual symptoms which are essentially spinal pain, limitation of movement, and some neurological consequences, will be with him for the rest of his life, no doubt deteriorating to some extent with age, will require ongoing management, and he is only 30 years old.  Fortunately the evidence discloses that he does not require much in the way of medication. 

3. I assess the plaintiff's loss of amenities as amounting to 35 per cent of a most extreme case, or $87,150. 

Gratuitous services and Wilson v McLeay allowance

1. The plaintiff claims an allowance in respect of the hospital visits by his partner and parents pursuant to Wilson v McLeay (1961) 106 CLR 523 where his Honour Taylor J determined that there could be an allowance in general damages in respect to hospital visitation by loved ones insofar as the visits were of therapeutic consequence. The evidence does not establish that the visits went beyond a manifestation of the love and concern that would be expected to be demonstrated by those involved.

2. The plaintiff further seeks an allowance for gratuitous services in that since the accident he "has been dependent upon his girlfriend, friends and relatives for travel, personal care and other services but for which he would have required the services of commercial agencies."  The claim as particularised covers such services as cooking, cleaning, making beds, washing, ironing, assistance with showering and dressing, and driving to and from medical appointments.  The parties have agreed that $15 per hour is the appropriate commercial rate for such services. 

3. The evidence both as to the content and extent of the services provided, was vague and general. I have no doubt that some of the domestic services supplied by the plaintiff's partner would have been provided to the plaintiff in any event. Whilst I have no doubt that some services properly falling under this head, were provided, the deficiencies in the evidence do not enable a calculation of their value such as to conclude that it would exceed $5,000. In the circumstances, and in accordance with the requirements of s 3D of the Motor Vehicle (Third Party Insurance) Act 1943, I am unable to make any allowance therefore. 

Loss of earning capacity

1. In the further and better particulars the plaintiff claims that as a result of his injuries he was unable to commence contract driving to Kununurra (the Brad Auhl contract) for which he would have been paid $890 net per week.  Further that he would have received an additional sum of $300 per week from casual driving. 

2. Brad Auhl's evidence was that he had a contract to transport goods to Kununurra on a weekly basis and that he employed two drivers to assist him.  The truck was operated by dual drivers, with the result that each driver had one week off in every three.  Mr Auhl had no problem with a driver doing casual work on his week off; and there was the possibility of extra trips becoming available if a driver required time off.  A driver was entitled to have four weeks leave, but being under contract did not receive any allowance for holidays, long service, sickness or superannuation. 

3. There is no doubt that the plaintiff would have been so engaged but for the accident; and that his injuries prevent him undertaking such work. 

4. At the date of the accident the contract rate, including a GST component of $110 was $1,210, with the result that the driver received $1,100 gross per trip.  On the basis of 35 trips per year that would result in a gross annual earning of $38,500.  I accept that the plaintiff would also have done some casual work probably increasing his gross annual earnings by $10,000 to $48,500 or a net return of $36,816. 

5. The present contract rate including a GST component of $130 is $1,430, with the result that the driver receives $1,300 gross per grip.  On the basis of 35 trips per year that results in gross annual earnings of $45,500.  On the basis that the plaintiff supplemented that with casual earnings of $10,000 his potential gross annual earnings would be $55,500 or a net annual return of $40,924. 

6. Mr Auhl was unable to indicate the date of the contract price increase, so I proceed on the basis that it occurred on or about 20 August 2002. 

(a)  past economic loss

1. Had the plaintiff been employed on the Brad Auhl contract his earnings since the date of the accident would be: 

   (i)20.8.00 – 20.8.02  $  73,632.00

   (ii)20.8.02 – 17.10.03 (60 weeks)     $  47,220.00

   $120,852.00

2. Since returning to full‑time employment on 29 October 2001 the plaintiff has earned an average of $814 net per week truck driving, or a total over 102 weeks until 17 October 2003 of $83,028. 

3. In addition the plaintiff has recovered the benefit of the statutory superannuation contribution: 

   (a)  29.10.01-30.6.02 $1115 gross x 34 weeks x 8% x 70% =  $  2,122.96

   (b)  1.7.02–17.10.03 $1115 gross x 68 weeks x 9% x 70%   = $  4,776.66

   Total        $  6,899.62

   The plaintiff's past loss is therefore: 

   Potential earnings     $120,852.00

   Less actual earnings                 $83,028.00

   Plus superannuation                $  6,899.62

   $89,927.62                 $ 89,927.60

   Loss        $ 30,924.40

4. Having regard to the fact that the plaintiff received net workers' compensation of $37,572 I do not make any allowance for interest.  I do, however, allow $11,243.10 in respect of the income tax relevant to the workers' compensation. 

(b)  loss of future capacity

1. The valuation of the plaintiff's loss of capacity in the context of the evidence in this case is a difficult exercise.  As Lord Diplock said in Paul v Rendell (1981) 34 ALR 569 at 571:

   "The assessment of damages in actions for personal injuries is not a science.  A judgment as to what constitutes proper compensation in money terms for pain, suffering of deprivation of amenities of life, can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured." 

2. I do not accept that the plaintiff will have to cease his present employment in the immediate future.  The evidence discloses that he has been in employment as a truck driver on a full‑time basis since November 2001, and there is no suggestion that he has required time off.  As a matter of commonsense one would think that with the passage of time he would become physically conditioned to that type of activity.  It is also to be borne in mind that he has required little in the way of analgesic support.  All that is entirely consistent with the assessment of Mr Woodland that the plaintiff is well motivated and has the capacity to continue working as a truck driver provided that the work does not have a substantial physical component.  Mr Woodland placed a caveat on his assessment that "there would still be some doubt whether he would be able to continue working full‑time as a truck driver in the long term", (report dated 6 October 2002) although he appeared to be considerably more optimistic in evidence. 

3. Having regard to the plaintiff's domestic responsibilities, his youngest daughter's health problems, and his own health requirements arising from diabetes, there must be considerable doubt as to whether he would have engaged in long distance driving for the remainder of his working life.  It is also doubtful that he would have continued to extend himself to the extent that he claimed in evidence. 

4. The evidence does not establish that the plaintiff is presently suffering any diminution in earnings.  Indeed when one takes into account the fact that as an employee he receives an employer superannuation contribution, holiday pay, and sick leave entitlement, he would appear to be better placed than if he was a contractor.  He is, however, at risk in the future, particularly if he were to loose his present position and his vocational capacity has clearly been reduced not only as a truck driver but in many areas of manual activity.  Those factors must be reflected in the assessment. 

5. I am satisfied on all the evidence, particularly that of Mr Woodland, that the plaintiff will be able to continue in his present or similar employment for at least another 10 years, and thereafter will be fit to work in a capacity which will enable him to at least earn the State minimum wage of $448.40 gross.  If that position was to eventuate his potential economic loss would be the difference between his present earnings and the minimum wage over that period, ie: 

   Present net earnings per week              $814.00

   Plus superannuation contribution         $  70.25

   $884.25$884.25

   Less

   Net minimum wage per week               $376.00

   Plus superannuation contribution         $  28.25

   $404.25$404.25

   Potential loss  $480.00

   Multiplier for 34 years to age 65           772

   Less multiplier for 10 years                  395

   Actual multiplier      377

   The potential loss is therefore $480.00 x 377 = $180,960.00. 

6. After making an allowance for the hypothetical nature of this calculation and adverse contingencies including the diabetic condition, I reduce that figure to $160,000 which in my judgment appropriately reflects the plaintiff's loss of capacity. 

(c)  Cost of future treatment

(i)Pharmaceutical – the evidence does not

provide a basis upon which any realistic
calculation  can  be  made  of  the  likely
pharmaceutical costs during the plaintiff's
lifetime.  He seems to have expended very
little  on medication  to this  point of time,
which is indicative of his positive  attitude

to rehabilitation.  Clearly, however, he will
require  medication  from time to time and
I allow:   $6,500.00

(ii)medical reviews per annum

General practitioners  4 x $40        =     $160.00

Specialist1 x $118  =     $118.00

$278.00

per week$    5.35

The plaintiff has a life expectancy of 47 years

and the appropriate multiplier is 838. 

$5.35 x 838 =            $  4,483.30

(iii)Radiological investigations if and when

required$  4,500.00

(iv)Allowance for future surgery and other

required incidentals  $  3,000.00

Total    $18,483.30

Special damages

The plaintiff produced a schedule of agreed special

damages as follows: 

Statutory benefits  $  8,765.00

Rehabilitation costs  $  3,949.45

Pharmaceutical  $     117.35

Travelling$     607.15

Total$13,438.95

Summary of heads of damage: 

General damages  $  87,150.00

Past economic loss  $  30,924.40

Fox v Wood component  $  11,243.10

Loss of capacity  $160,000.00

Cost of future treatment  $  18,483.00

Agreed special damages  $  13,438.95

$321,239.45

Less 35% reduction for contributory negligence       $208,805.64

1. The plaintiff is entitled to judgment for $208,806.