Nebbia v Parravicini

[1996] QSC 150

IN THE SUPREME COURT

OF QUEENSLAND

Townsville

[Nebbia v. Parravicini & Ors]  No. 110 of 1992

BETWEEN:
  GARY LUIGI NEBBIA
  Plaintiff
AND:
  ROBERT PARRAVICINI
  First Defendant
AND:
  STATE OF QUEENSLAND
  Second Defendant
AND:
  CASIMER WILLIAM CHAROBIN
  Third Defendant

[Parravicini v. State of Queensland & Ors]  No. 137 of 1991

BETWEEN:
  ROBERT PARRAVICINI
  Plaintiff
AND:
  STATE OF QUEENSLAND
  First Defendant
AND:
  CASIMER WILLIAM CHAROBIN
  Second Defendant
AND:
  SUNCORP INSURANCE AND FINANCE
  Defendant by Election

REASONS FOR JUDGMENT  -  THOMAS J.

Delivered:21 June 1996

CATCHWORDS:      NEGLIGENCE - Duty of care owed by the police when they establish a roadblock on a highway - Collision between a utility which was parked at police roadblock and an oncoming prime-mover - Police negligent in failing to provide an adequate system of warning for oncoming traffic - Driver of utility not negligent in merely following police orders - Driver of prime-mover negligent in maintaining excessive speed and/or failing to exercise proper control

Apportionment - 75% police, 25% driver of prime-mover

DAMAGES - Quantum - personal injury - whiplash

-  2  -

Counsel:Mr Fraser QC with him Mr Pope for the Plaintiff in action No. 137 of 1992 and 110 of 1992

Mr Pack for the Second Defendant and the Defendant by Election in action No. 137 of 1992

Mr Durward for the First Defendant and the Third Defendant in action No. 110 of 1992

Mr Robinson for the First Defendant in action No. 137 of 1992 and the Second Defendant in action No. 110 of 1992

Solicitors:Dempsey Solicitors for plaintiff in action No. 137 of 1992 and 110 of 1992

Suthers and Taylor for the Second Defendant and the Defendant by Election in action No. 137 of 1992, and for the First Defendant and the Third Defendant in action No. 110 of 1992

Crown Solicitor for the First Defendant in action No. 137 of 1992 and the Second Defendant in action No. 110 of 1992

Hearing Date:                11-13 June 1996

IN THE SUPREME COURT

OF QUEENSLAND

Townsville

[Nebbia v. Parravicini & Ors]  No. 110 of 1992

BETWEEN:
  GARY LUIGI NEBBIA
  Plaintiff
AND:
  ROBERT PARRAVICINI
  First Defendant
AND:
  STATE OF QUEENSLAND
  Second Defendant
AND:
  CASIMER WILLIAM CHAROBIN
  Third Defendant

[Parravicini v. State of Queensland & Ors]  No. 137 of 1991

BETWEEN:
  ROBERT PARRAVICINI
  Plaintiff
AND:
  STATE OF QUEENSLAND
  First Defendant
AND:
  CASIMER WILLIAM CHAROBIN
  Second Defendant
AND:
  SUNCORP INSURANCE AND FINANCE
  Defendant by Election

REASONS FOR JUDGMENT  -  THOMAS J.

Delivered 21 June 1996

These two actions were heard together.  It will be convenient to deal firstly with the question of liability by reference to the pleadings in the Nebbia action.
The plaintiff Nebbia was a passenger in a Falcon utility driven by his stepfather Robert Parravicini who is a defendant in this action and the plaintiff in the other action.  At around 10 p.m. on the night of 22 May 1991 Mr Parravicini was driving south along the Bruce Highway approaching the area of Rollingstone which is north of Townsville.  The main feature of this area from the viewpoint of those passing through is a BP service station on the eastern side of the highway.  The police had been in the area for about five hours, in consequence of an accident involving a semi-trailer which had overturned to the south of the BP service station.
Mr Parravicini's vehicle was stopped by Constable Stock some distance to the north of that accident scene.  During the preceding hours the police had permitted traffic to proceed in a single lane, with alternately the northbound traffic being stopped while southbound traffic proceeded and vice versa.  Apparently by about 10 p.m. the stage had been reached at which the police decided to close off the entire highway to allow the final clearance of the semi-trailer to occur.  It was Constable Stock's task to stop the southbound traffic.  Other police officers south of the Rollingstone area had the task of stopping the northbound traffic.
Constable Stock had only completed his police academy training five months previously.  His course had not given him any particular training in controlling situations of this kind.  He and other police officers from the traffic squad in Townsville had been called to the scene about one hour previously.  He was sent to the northern end of the controlled area to handle the southbound traffic by himself.  He was not given any special equipment, and apparently did not even have a police torch.  There was occasional drizzling rain, and he wore a blue mackintosh which did not have reflective markings.  The method that he used for stopping the traffic was probably that which some other police officer at the scene suggested to him.  It did not involve any manual control.  That is to say, no one at all would be on the road directing the traffic.  The signalling was all done from the constable's police car which he parked half on and half off the left (west) side of the highway with the car facing in a northerly direction.  As he was working alone, and the only form of communication with the police at the southern end of the control area was by means of a radio in his car, it was probably not feasible for him to leave the car for more than brief periods.  In any event, without appropriate clothing and equipment it does not seem that manual control of the traffic would have been a safe option for him.
During the hour preceding the accident which is the subject of these proceedings, Constable Stock had succeeded in stopping about forty southbound vehicles.  All of these had been allowed to proceed before the total closure of the road occurred.
The highway bends to the left for southbound traffic just before the BP station at Rollingstone.  However, before that bend the road is relatively straight with a slight uphill gradient for southbound traffic and there is good visibility.  Constable Stock parked his vehicle to the north of the bend and he had a clear view to the north of something around 600 metres.  His method was to wait until he saw approaching lights in the distance.  He would then turn on the headlights of the police vehicle and flick the high beam and low beam lever so that those beams alternated.  There were also two other switches near the centre console which would operate flashing lights on the roof of the police vehicle.  One switch operated red and blue revolving lights at either end of a bar on the roof, and the other operated smaller round lights (called mickey-mouse lights) which are smaller blinking lights which also operate from the roof.  He would generally depress both of these switches at about the same time, shortly after commencing to flash his headlights from beam to beam.
Constable Stock did this as Mr Parravicini approached.  Mr Parravicini saw the lights and stopped his vehicle.  He was at that stage the first southbound vehicle.  Constable Stock alighted from the police vehicle and told Mr Parravicini that there was an accident ahead and that a vehicle was being cleared and that he would have to wait.  He told Mr Parravicini to turn off his motor.  Mr Parravicini did so and also turned off his headlights, leaving on his parking lights and tail-lights.  Constable Stock did not suggest he should do otherwise.  The Constable then returned to the police vehicle.
The Falcon utility came to a halt in the ordinary driving position in the southbound lane of the highway possibly about 10 metres north of the stationary police vehicle.  No suggestion was made that he should move his vehicle to any other situation.  It was obviously intended that this vehicle should be the first in line of a new southbound queue that could proceed in due course.
About five minutes later a prime-mover with a semi-trailer approached, driven by the defendant Casimer Charobin.  Although he had 600 metres' visibility, Constable Stock only noticed the approaching truck when it was about 300 metres away.  He then turned on his headlights and flashed the beams, followed soon after by the activation of the flashing blue and red lights on the roof of the police vehicle.  Mr Charobin was distracted initially by the flashing headlights, but realised there must be something of an emergency when he saw the coloured flashing lights.  When he applied his brakes, they locked, and his vehicle skidded for about 100 metres into the back of the stationary Falcon utility.  There was a very severe impact which spun the utility forwards for about 15 metres.  The truck missed the police vehicle, veered to the right into a fixed water pipe on the western side of the highway and then jackknifed to a halt.
There is a good deal of variation in the evidence concerning the nature and duration of the flashing signals given by Constable Stock, although some reconciliation is possible.  I accept that the headlights were activated and that the coloured flashing light systems were then activated within a fairly short time, probably within a few seconds.  Mr Parravicini said that only "a second or so" elapsed between the time when the coloured flashing lights came on and the occurrence of the accident.  Mr Nebbia noticed the police headlights come on and "straight after that" that the flashing lights came on, and that "straight after that" the back windscreen of the utility was flooded with light.  He then heard a screech of brakes and then they were struck from behind.  He made the fairly commonplace observation that it all happened very quickly, but his evidence and that of Mr Parravicini in a general way support the conclusion that Constable Stock left it till a fairly late stage to activate the coloured lights.  Initially Mr Nebbia translated his opinion of "very quickly" into a period of "ten or fifteen seconds" but he subsequently abandoned that estimate as too long.
Mr Charobin's evidence was that he noticed a car flashing its lights at him and checked his beam to make sure he was not on high beam.  He said he would have been within 100 to 200 hundred metres away when he first noticed the high beam flashing.  When he was about 100 metres away he saw the blue lights come on.  He realised there must be a problem, dropped one gear and "as I got closer I just nudged the brakes and from there on everything just locked up".  His admission to Sergeant Cole at the scene was that he saw "headlights and shortly after blue and red flashing lights . . . about a hundred metres or so" from the scene.  Constable Stock said that he saw the truck about 300 metres away, that he activated the various switches for the lights and that when the truck was about 100 metres away the air-brakes sounded and the wheels locked up.  He found it difficult to give an accurate account of the truck's speed but noted that "it would have been between 70 and 85 kmh quite easily".  I accept that the air-brakes sounded and that the wheels locked when the truck was about 100 metres from the scene. 
I have no basis for doubting the sincerity of the evidence concerning the accident given by any of the witnesses, but am inclined to use the evidence of Mr Parravicini and Mr Nebbia as a starting point, excepting of course Mr Nebbia's estimate of time.  The flashing of the headlights probably commenced when the truck was somewhere between 200 and 300 metres from the scene, and some further distance must have been travelled by the truck before the less ambiguous lights (i.e. the flashing coloured lights) were activated, giving Mr Charobin a warning that clearly called for some action on his part.  The dominant impression left by the evidence is that only a short period elapsed between the activation of the lights and the occurrence of the accident.  I am therefore inclined to discount Constable Stock's estimates on that point and consider that the duration of the warning was most likely somewhere between his estimate and that of Mr Charobin.
Unfortunately, and surprisingly in my view, the police did not see fit to measure the length of the skid-marks or make any observation as to their nature.  In the present circumstances it is impossible to make any more precise findings than I have so far indicated.  They are based upon inexact observations of various witnesses concerning times and distances at night time.
I consider that the primary negligence causing this incident was that of the police.  No satisfactory system or method of night time traffic control was planned or insisted upon.  If police take control of a particular area of the highway they owe a duty to ordinary road users to exercise due care.  The duty exists not only in the individual police officers who attend at the scene, but also in the Commissioner who owes members of the public a duty to have a system which gives reasonable instruction and methodology, and which within reasonable limits makes appropriate equipment available to officers who are called upon to control traffic.  Once police take over control, they must be careful not to subject those under their control to unnecessary risk.  (Compare Ticehurst v. Skien (1985-1986) 3 MVR 307, 319 per Wood J.)
Deficiencies are apparent at all levels of the police response in this instance.  The lack of any appropriate clothing or lighting apparatus contributed to the decision to halt all traffic from a car and meant that in the end there was no manual control.  The device of flicking lights from low to high beam from a stationary vehicle half on the road was at best ambiguous and at worst positively distracting to oncoming traffic.  The use of flashing coloured lights on the roof was the best warning, but this was only used intermittently, and on this particular occasion, later than it should have been.  Constable Stock was of the opinion that if he operated these lights continuously, even with the motor running, it would run the battery down.  I rather doubt this, but in the absence of expert evidence am unable to make a specific finding other than that he could have run his motor and used his lights far more than he chose to do.  This only highlights the lack of proper training and equipment.  If he is correct in thinking that he could only run flashing lights for short periods, then there is surely a duty upon the Commissioner to supply some alternative equipment which will enable flashing lights to be run for appreciable periods.  Had flashing coloured lights been visible continuously, Mr Charobin would have had 600 metres to respond to the situation.  In the event, the police vehicle was in darkness for the first 300 metres (at least) of his approach, and it was not until he was somewhere within 200 metres of the scene that the coloured flashing lights alerted him.  Even then there was no one available to give a clear "stop" signal to oncoming traffic, and drivers such as Mr Charobin were simply expected to guess that they should stop.
It was submitted that the police negligence was compounded by permitting the Falcon utility to remain stationary where it stopped on the carriageway, and in permitting it to remain on the northern side of the police vehicle rather than moving it to the southern side.  I do not think that these factors are of primary importance.  The operative negligence lay in the use of an inadequate system of warning together with Constable Stock's failure to activate that system (such as it was) at a sufficiently early stage.  In short, there was inadequate instruction, training and equipment supplied or organised to enable a road-block function to be properly carried out;  and Constable Stock did not keep a proper lookout, and he did not give a proper warning in sufficient time.
Mr Parravicini was not guilty of negligence causing Mr Nebbia's injuries, and was not guilty of contributory negligence.  It was faintly argued that he should have kept his own headlights on.  In my view he was in effect under police control and what he did was what the average motorist would do in such a situation.  He did not know how long he would be stopped, and the policeman told him to turn his motor off.  There was no dissent from the policeman when he turned off his headlights, leaving on his parking and tail-lights.
I consider that Mr Charobin was guilty of negligence.  On his own estimate he was travelling at 80 kmh, which was the prescribed maximum speed limit at this point.  He knew that this particular area was slippery, that fellow truck-drivers recognised the area as one where sliding easily happened, and in his own words that it was "extremely hazardous". He kept driving (on his own account) at the maximum speed in this known dangerous area for an appreciable time after the police headlights were flashed.  There was also a Main Roads sign indicating by symbols that the road was slippery when wet.  I find it hard to accept the totality of his evidence which alleges a speed of 80 kmh, "just slight pressure" on his brakes, the wheels locking up and the motor cutting out followed by a skid of probably the better part of 100 metres.  The dangerous situation of course was initially created by the inadequate police warning, but in my view a coloured lights warning of approximately 200 metres should have been enough for him to have been able to stop his vehicle without such serious consequences.  In this respect it is to be noted that to Sergeant Cole's question " Do you consider you had sufficient warning of the approaching hazard?" he replied "Yes".  It is true that the road surface was slippery in this area but he was aware of that fact.  The slipperiness was not doubt enhanced by the light drizzle that was then falling, but he was also aware of that circumstance.  In the event I consider that he was subjected to a rather late warning but that his reactions were not appropriate.  He was guilty of one or more of excessive speed in the circumstances and failure to exercise proper control.  However as the dangerous situation was created by the police I consider that Mr Charobin's responsibility for the occurrence was not as serious as that of the police.
In the event I apportion liability as to seventy-five percent against the State of Queensland and as to twenty-five percent against the defendant Charobin.  This finding will carry though to the various cross-claims that have been made between the defendants.

Quantum - Robert Parravicini

At the time of the accident (22 May 1991) Mr Parravicini was a thirty-one year old cane farmer.  He had completed grade 12 and obtained a TE level of 750.  In 1990 he married Irene Nebbia, a lady who had been seriously injured in an accident some four years previously.  She was to some extent an invalid and he needed to provide about ten hours per week special care for her.  His father died later in that year.  He attempted to continue running the farm with his mother, but a number of problems existed including friction between his mother and Irene.  It was decided to sell the farm and it was advertised in December 1990.  During the 1989 and 1990 seasons Mr Parravicini had demonstrated his ability as well as running his cane farm to make additional income as an independent contractor doing billet cane planting.  He did this activity in partnership with Mr Mansini.  His income from that activity in 1990 was $17,000 net, and in 1991, $15,000.  It occupied about three months of the year, usually around May, June, July.

In May 1991 he asked Irene's son Gary if he was interested in working on the farm.  Gary, then aged sixteen and having left school prematurely, was interested, and they spent a few days together during which Mr Parravicini introduced him to the basic techniques and the basic equipment.  That was the stage they had reached when they were returning from the farm on the night of the accident.
There was a very severe impact to the rear of Mr Parravicini's vehicle.  No bones were broken, but there was a whiplash injury.  He suffered pain in his neck and lower back, and a deep laceration to his forehead required eight stitches at Townsville General Hospital.  He was kept in hospital for the following day, but at 7 p.m. his wife visited him and he discharged himself because she was under stress and complaining of her own injuries.

It is not necessary to discuss the medical evidence at length.  Suffice it to say that the X-rays produced to the court by Dr Giles demonstrate at least some radiological support for the symptoms of which Mr Parravicini has complained ever since.  Three areas of his spine suffered damage, and he has been left with chronic residual soft-tissue injuries in these areas, namely L4-S1, the lower cervical spine, and the interscapular part of his thoracic spine.  He also frequently suffers from pins and needles symptoms in both hands, and this is probably explained by the slightly unusual (though not abnormal) existence of a rudimentary cervical rib, which makes such symptoms more likely as a consequence of trauma of this kind.
He suffered a good deal from headaches during the earlier stages.  Performance of work such as welding cause an increase in the pins and needles leading to numbness and pain in his hands.  Heavy activities such as shovelling aggravate the pain in the thoracic area.  Generally speaking labouring activities cause an increase of pain in the areas mentioned.  Despite this he has been engaged mainly in physically active employment since his accident and this has mitigated his economic loss to date.  But it is probable that he has been doing so at a price.  Dr Giles, whose evidence I accept, describes him as a stoic with a high work ethic.  He considers that surgery could become necessary if he keeps doing heavy work.
The above brief statement probably does not do justice to the grit that this plaintiff has shown and it does not sufficiently emphasise the pain that he has suffered in continuing to play the role of breadwinner and placing his own problems as secondary to those of his wife, whom he loyally supports.  His condition has become chronic and he will not be able to sustain in the long term the heavy kind of work that he has been so far doing.
After his accident the farm remained available for sale.  An attempt was made to present a case on the footing that Mr Nebbia would probably have solved the problems that required the farm to be sold, but I do not think that this case has been made out.  His wife's condition, and her need to live in Townsville made it inevitable in my view that the farm would have been sold, with or without the occurrence of the accident.  In 1992 he employed another person to do the work that he would have contributed to the billet planting enterprise, and this will be allowed for in pre-trial economic loss.  He sold his interest in that enterprise, and sold the cane farm in July 1992, the contract being completed in December 1992.  By May 1993 he had obtained work as a builder's labourer which he performed until the end of 1995.  After a period as a machinist he obtained employment as a tradesman's assistant at a quarry.  This work involved greasing conveyors, replacing screens and driving a truck.  His present work causes him pain and his employer is to some extent aware of this.  I infer that his employer identifies some of his qualities above and beyond his capacity for physical work, but that is not to say that his future employment is secure.
I find that it is probable that this plaintiff's left knee was also injured in the accident, probably causing a meniscal tear.  The knee gives way from time to time.  He had never had such symptoms previously, and they came on within a month of this accident.  It is in itself not a particularly significant injury, but it adds to the combination of his disabilities.
It was submitted for the defendants that the evidence shows that the symptoms associated with loss of feeling in the hands is probably attributable to some independent cause such as carpal tunnel syndrome.  I do not think that the evidence establishes this to be a probability.  I consider that this symptom appeared at an early stage along with the others that are plainly attributable to the accident.  Complaint of it on 15 July 1991 is recorded by Dr Watson and in the following month by Dr Fraser.  Dr Giles did not consider that it was attributable to any carpal tunnel problems.
The plaintiff did not offer much evidence of extra-curricular activities, but he and his wife enjoyed a modest social life before the accident and he would occasionally go fishing or crabbing.  His social life is virtually non-existent now, and he does not pursue his past interests any more.  His life has been rendered very difficult by reason of the accident, and the future will not probably be any better.  He has been subjected to considerable pain and will have to put up with this in the future.  I assess damages for pain suffering and loss of amenities at $40,000.  Interest will be allowed on $15,000 for five years at ten percent, namely $1,500.
With respect to past economic loss, I reject the premise that he would have continued to be entitled to the profits of cane-farming, and assess damages on the footing that soon after May 1991 he would have commenced earning income by other activities similar to those that he has in fact undertaken.  Of course he would have started other work earlier than he did, because his injuries intervened.  I also think that his physical prowess would have been greater, and would justify an expectation of slightly higher earnings.  I assess damages for past economic loss at $12,500.  Interest will be allowed at ten percent for three years - $3,750.
It is very difficult to assess future economic loss in this case.  He is a man of some initiative and has various skills of the kind that self-employed farmers acquire.  His good character and serious frame of mind are fairly evident.  I therefore think that despite his declining physical abilities, he probably has some economic future.  But that future is rendered far more uncertain, and is less in his own hands than it would be if he had his physical abilities.  His value on the labour market has been significantly impaired.  He will probably hold employment of the present kind for the next five years, but of course there is a risk that he will not.  I also take into account the view that his present earning capacity is probably slightly lower than it would be were he not injured.  The possibility of his becoming a leading hand or foreman is by no means impossible, but no reliable forecast can be made on such a point.
I have performed a number of exercises and mention by way of illustration that if he were allowed $50 per week for the next five years, and then $150 per week for twenty years it comes to a total of just under $90,000.
He is presently aged thirty-six, and he is a person who would, but for the accident have been engaged in remunerative activity for most of his life, and I am confident in thinking that in his case this would have been beyond age sixty. 
The above exercise does not sufficiently allow for the unfavourable contingency that, when he is no longer fit for heavy manual labour, there may be lengthy periods of complete unemployment.  All things considered the sum of $100,000 seems to be a reasonable amount to allow for future economic loss.  The parties agree that there is an additional factor to be allowed for superannuation and that this may be roughly calculated by taking five percent of the notional gross wages lost.  This comes to approximately $6,700.
Special damages are admitted at $2,252.15.
Future expenses are agreed at $3,250.00.
The total of damages and interest is $169,952.15.

Summary

Damages for pain suffering and loss of amenities   40,000.00

Interest  1,500.00
Past economic loss  12,500.00
   Interest  3,750.00
Future economic loss  100,000.00
Special damages  2,252.15

Superannuation  6,700.00

Future expenses   3,250.00

Total:$169,952.15

Quantum - Garry Nebbia

Garry Nebbia was sixteen when he was injured in this accident.  He had left school twelve months previously at age fifteen - "I was not expelled or anything like that, I just got bored with school-work".  His mother married Robert Parravicini in that year.  He (Gary Nebbia) was unable to find employment.  He assisted his mother in exchange for pocket-money.  He spent some time visiting Mr Parravicini's farm, but had not, until a few days before the accident, seriously attempted any farm work.  I accept however that he was looking forward to the new arrangement and was trying to learn basic farm skills when the accident happened.  One cannot predict the outcome within any certainty, but there were good chances that the arrangement would have worked, that he would have learned how to participate in the billet planting operation and have been able to earn income from that quarter even when the farm had been sold.  In other words there were good chances that he would have made some start to an economic life.

He was shaken by the accident and on the following day developed severe neck, back and shoulder pain.  He attended Dr Fraser who prescribed physiotherapy and a pain-killer.  His attendance for physiotherapy during the following week confirms pains in these areas.  He was incapable of any active function for one or two months by which time a degree of improvement occurred.
Imaging procedures undertaken under the supervision of Dr Giles (an MRI examination on 12 May 1995) clearly demonstrate a loss of disc height at L5-S1 and a mild disc protrusion at L4-L5.  Further, there is clear evidence of degenerative disc changes at T11-12 and T12-L1, described as Schmorl's nodes, that is to say disc herniation into the vertebral bodies.  I accept Dr Giles' evidence that these findings resulted from the motor vehicle accident.
This plaintiff is constantly aware of low back and neck pain and stiffness.  The greater problem is with his lower back.
It may be noted that earlier conventional X-rays did not reveal these irregularities, and it is likely that the absence of visible bony changes influenced the opinions of some of the doctors who have examined and reported on his condition.
He was unable to resume the planned farming activity, and by the time he had recovered a reasonable degree of physical competence the farm had been sold.  His economic loss falls to be assessed as a young man basically dependent upon his physical abilities who was rendered, at age sixteen, incapable of any further heavy work, or even, it would seem, of sustained light work.  He can perform a few heavy activities, but his back stiffens and becomes painful after a few hours of most forms of activity.
Like many young persons of his age, he had not gained confidence in his own ability, and his failure to obtain a job has compounded his difficulties.  He presents well and is a pleasant young man.  He has applied for many positions (as schedule A to his quantum statement verifies).  On many occasions he has disclosed to potential employers (reasonably I think) his back problem, and of course that understandably creates a degree of fear in many employers.  The one job that he did obtain was as a security assistant with Breakwater Security Services (at the Casino Hotel).  He worked there between 15 September and 22 October 1995, after doing a preliminary course in "crowd control" which in effect qualified him to be a "bouncer".  The techniques are designed to avoid unnecessary physical confrontation, but some techniques of eviction are necessary.  His shifts ranged between six and nine hours, and at his request he was given the shortest shifts of six hours.  It soon became obvious that this was causing him difficulty and he would usually be in pain after four hours.  This is confirmed by the manager.  He made a request for still shorter shifts, but the manager was unable to arrange this.  The manager's statement confirms that he made a genuine effort, but was not physically able to cope.  Other than this he was considered to be a good employee - "Unfortunately, we don't have the short two-three hour shifts Gary would need to be able to work".
The evidence suggests that work is difficult to obtain, particularly for young persons in the Townsville area.  This plaintiff is now aged twenty-one and he has not successfully started any working career.  His problems, particularly his back, are likely to be permanent.  There are still activities that he might be able to do such as light gardening, light trades-assistant work, car-park attendant and the like.  But his physical limitations, particularly those of endurance, place him under a very severe disadvantage in the labour market.
It is relevant to note, however, that in assessing economic loss, it should be remembered that he may have had difficulties in holding employment in any event, and that it would be inappropriate to assess damages on the footing that he would have been continuously employed.  He falls to some extent into the category of plaintiffs who have not by the time of the accident yet demonstrated the extent of their earning capacity.
It should also be noted that he showed a positive attitude to rehabilitation and can drive vehicles.  From time to time he does body-building exercises to keep up muscle strength.  Generally speaking he is a fit young man, but he has the weaknesses mentioned above.  His position is fairly accurately stated in a report of Ms Coles as follows:

"Mr Nebbia is not unemployable but his present status is such that he could be at a disadvantage when competing with other unimpaired, equivalently suited job applicants."

She also noted at that stage a "negative attitude and associated despondency".  He periodically uses mild pain-relief pharmaceuticals to relieve pain.  The impression I have is not of a person who suffers a great deal, but rather of one who protects himself to the degree necessary to avoid it.  He currently lives with his girlfriend at her house.
There is not a great deal of evidence concerning loss of amenity.  Plainly the accident has had a dominating influence on his life.  I assess damages for pain suffering and loss of amenities at $40,000.  Interest will be allowed on $15,000 for five years at two percent, namely $1,500.
Past economic loss should be assessed at a modest level having regard to his age, lack of qualification and lack of proven capacity, and with a mind to a probability of periods when he would not have been employed.  The loss should be assessed for a period of five years at $150 per week.  This is intended to include whatever superannuation benefits he may have accrued.  This comes to $39,000.
Interest will be allowed at ten percent on $19,500 for five years, namely $9,750.
Future economic loss should cover a future period of between thirty-five and forty years.  I must choose a figure which takes into account that he is not unemployable (although his prospects are not good and will probably be intermittent) and the fact that he was not in any event guaranteed to be fully employed.  I should also take into account that as the projection is for a very long period, some effect should be given to adverse contingencies.  I note that a projection of thirty-seven years on the five percent actuarial tables at a rate of $180 per week produces a present loss figure of $160,920.  I shall round this to $160,000 for this component of damages, again indicating that this is intended to cover whatever benefits of superannuation he would have obtained.
Special damages are admitted at $911.47.
His need for regular physiotherapy or massage is demonstrated.  This is now provided for him by his girlfriend who is a trained masseuse.  It is a valid claim under the principles of Griffith v. Kirkemeyer and the parties now agree that $6000 should be allowed for past services of this kind (with $240 interest), and that $40,000 as the value of future services of this kind.

Summary

Damages for pain suffering and loss of amenities   $   40,000.00

Interest  1,500.00
Past economic loss  39,000.00
   Interest  9,750.00
Future economic loss  160,000.00
Special damages  911.47

Griffith v. Kirkemeyer (past)  6,000.00

Interest  240.00
Griffith v. Kirkemeyer (future)                    40,000.00

Total:$297,401.47

Orders
In Mr Parravicini's action (No. 137 of 1992) there will be judgment for the plaintiff for $169,952.15 against both defendants.  As between the first defendant and the second defendant I declare that the responsibility of the first defendant is seventy-five percent and that of the second defendant twenty-five percent.  I shall hear submissions on costs.  Liberty to apply on matters of mathematical adjustment and interest.
In Mr Nebbia's action (No. 110 of 1992) there will be judgment for the plaintiff for $297,401.47 against the second defendant and the third defendant.  The plaintiff's action against the first defendant will be dismissed.  As between the second defendant and the third defendant I declare that the responsibility of the second defendant is seventy-five percent and that of the third defendant twenty-five percent.  I shall hear submissions on costs.  Liberty to apply on matters of mathematical adjustment and interest.