Pastuch v Transport Accident Commission

[2023] SADC 150

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Application)

PASTUCH & ORS v TRANSPORT ACCIDENT COMMISSION

[2023] SADC 150

Judgment of his Honour Judge Slattery  

9 November 2023

DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - INCOME LOSS AND LOSS OF EARNING CAPACITY - GENERALLY

On 6 November 2016 the first applicant, Mr Pastuch, was the driver of a road train motor vehicle travelling in a generally west/north west direction on the Eyre Highway outside of Penong in western South Australia.

At the same time and place, a Mr Brenton Kansy- Grosser was driving a road train vehicle on the same highway in a generally east south/east direction.

The vehicle driven by Mr Kansy-Grosser collided with the vehicle driven by Mr Pastuch. Mr Kansy-Grosser died as a result of the collision. The respondent, the Transport Accident Commission has accepted liability for the collision.

As a result of the collision, Mr Pastuch suffered a severe fracture of the upper right arm, right shoulder injuries, a fractured clavicle, and exacerbation of a pre-existing lower back injury and a severe psychiatric injury of Post Traumatic Stress Disorder and depressive symptoms.

The first applicant Mr Pastuch has not been able to return to his pre-accident employment as a road train driver since the collision. He claims against the respondent for damages for past and future economic loss, pain and suffering, medical expenses and other damages.

The second applicant Ms Samantha Lewis, the wife of Mr Pastuch, claims for loss of consortium of Mr Pastuch following the injuries suffered by him.

Before the trial the parties prepared a list of issues for the determination of the trial Judge which included a record of some matters agreed between the parties as follows:-

1. Liability is admitted by the respondent as to the occurrence of the accident but there is a 25 % reduction of liability on account of the first applicant’s failure to wear a seatbelt: Civil Liability Act s 49;

2.      The parties have agreed that the appropriate ISV Item Number of 12 based on the GEPIC Assessment of Dr Hundertmark and the parties agree that the ISV Item Number of 25 applies to the injury which for an accident occurring in the 2017 financial year gives a figure for general damages in the amount of $17,850;

3.      The parties agree that in the event the Court is minded to award damages based on commercial rates for services provided, the appropriate is $51 per hour;

4.      The parties agree that in the event the Court is minded to award damages for gratuitous care, the appropriate rate is in accordance with Regulation 19 of the Civil Liability Regulations, at a rate of $25 per hour (indexed);

5.      The parties agreed that the Court would be required to make findings and, if necessary, assessments in relation to past economic loss, past superannuation, future economic loss, future superannuation, Wilson v McLeay damages, gratuitous services, future care, past special damages, future medical expenses, interest and the loss of consortium claim of the second applicant Ms Samantha Lewis;

Whether as a result of the injuries suffered by him, the applicant Mr Pastuch has suffered any compensable loss including for loss of earning capacity past and future, non-economic loss, loss of superannuation entitlements past and future and any other form of pecuniary losses, medical expenses or special damages;

Whether the applicant Mr Pastuch has any claim for past gratuitous care and assistance or for future gratuitous care and assistance;

Whether and if so to what extent, the second applicant Ms Samantha Lewis has a claim for loss of consortium of the applicant Mr Pastuch;

Held:

1.      In the amount set out in the chart below, the applicant Mr Pastuch is entitled to receive assessed damages for:-

(a)    Non economic loss;

(b)    Past gratuitous care and assistance;

(c)     Past superannuation losses;

(d)    Future care and assistance;

(e)     Past medical expenses/special damages

(f)     Future medical expenses;

(g)     Pecuniary losses in the form of:-

(i)      Future economic loss

(ii)     Future superannuation losses

(iii)    Wilson v McLeay damages

(iv)    Gratuitous services

(v)    Future care

(vi)    Future medical expenses

2.      In the amount set out in the chart below, the applicant Ms Samantha Lewis is entitled to receive assessed damages upon her solatium claim;

3.      Summary of Damages

(1)     Mr Pastuch

(i)      Non-economic loss      $17,850

Past losses

(ii)     Past economic loss including for past loss

of superannuation benefits ($43,374) and

after an allowance of $25,000 for past earnings

less a reduction of 20 % pursuant to s 56A(5)

of the CLA       $353,928.80

(iii)    Past medical expenses and special damages

(as agreed between the parties)  $29,030.45

Total amount for past losses and non-economic loss      $400,809.25

Future losses

(iv)    Future economic loss including for future

superannuation losses, after a reduction for future

earnings ($60,000), a reduction of 25 % for

contingencies and after a reduction of 20 %

under s. 56A(5) of the CLA $718,045.20

(v)    Wilson v McLeay damages   $1,000

(vi)    Gratuitous services (past and future)  $16,172

(vii)     Future care after a reduction of 25 % for contingencies   $63,750

(viii)    Future medical expenses   $25,000

(ix)    Spargo v Greatorex damages  $30,000

Total amount for future losses   $853,967.20

Total amount of past and future losses and

non-economic loss       $1,254,776.45

Total past and future losses after 25%

Reduction under s 49 (3) of the CLA $941,082.00

(2)     Ms Lewis

(i)      Loss of consortium

(a)     After a reduction by 25% under

s 49(3) of the CLA $37,500

Total assessment of Applicants’ damages                  $978,582.34

4.      The court will hear the parties in relation to interest and other consequential orders.

Civil Liability Act 1936 (SA); Road Traffic Act 1961 (SA); Motor Vehicles Act 1959 (SA); Civil Liability Regulations 2013; Return to Work Act 2014 (SA), referred to.
Fox v Wood [1981] 148 CLR 438; Plumridge v Pandelis [2022] SADC 42; Raccanello & Ors v Motor Accident Commission [2023] SADC 84; Spargo v Greatroex [1992] SASC 3809; Wilson v McLeay [1961] 106 CLR 523. 106 CLR 523; Elliott & Anor v Andrew 2009 SADC 31; Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, considered.

PASTUCH & ORS v TRANSPORT ACCIDENT COMMISSION
[2023] SADC 150

1. The plaintiff Mr Danny Pastuch was born on the 22 December 1973 and, during 2016, was employed by the firm HPS Transport Pty Ltd (HPS Transport) as an interstate truck driver of road trains. The second applicant Mrs Samantha Lee Lewis is the spouse of Danny Pastuch. In November 2016, the defendant, the Transport Accident Commission, was the approved compulsory third party insurer pursuant to the Motor Vehicles Act 1959 (as amended) of a motor vehicle being driven by Brenton John Kansy – Grosser (deceased). Mr Kansy-Grosser died on 6 November 2016 as a result of injuries which he sustained in a collision of the vehicle driven by him with the vehicle driven by Danny Pastuch.

2. In this action, the liability of the defendant is admitted.

3. On 6 November 2016 at about 6.10 am, Danny Pastuch was driving a road train comprising a prime mover and two trailers northwest on the Eyre Highway, in South Australia. At that time, the road train was about 11 kilometres west of the Nundroo Roadhouse, Coorabie on the far west coast of South Australia. The deceased Brenton John Kansy-Grosser was at the same time driving a Volvo prime mover registration VV30JU in a south easterly direction, that is in the opposite direction from to the vehicle driven by Mr Pastuch. At a point very near to the position of the first applicant’s vehicle, the vehicle driven by Kansy-Grosser veered across onto the incorrect side of the road. Mr Pastuch as the driver, could see the other vehicle coming towards his vehicle. He tried every means available to him to notify the other driver of the fact that his vehicle was veering directly across the road and at the vehicle driven by Mr Pastuch. None of his efforts succeeded. In the end, Mr Pastuch drove off the bitumen and put the left side of his vehicle onto the shoulder of the highway and then caused the road train vehicle to turn onto its left side.  At that time, the vehicle driven by Mr Kansy-Grosser collided with the elevated right-hand side of the vehicle driven by Mr Pastuch. The vehicle driven by Kansy-Grosser cleaved through the whole of the right side of the vehicle driven by Mr Pastuch which ended up on its side. The vehicle driven by Mr Kansy-Grosser continued on into the scrub and burst into flames. Mr Kansy-Grosser died as a result. This was a collision of extraordinary violence. The whole of Kansy-Grosser’s vehicle, after ignition, became engulfed in flames. Nothing could be done to save Mr Kansy-Grosser.

4. Mr Pastuch lost consciousness as a result of the collision and awoke to find he was pinned to the passenger side door of the overturned prime mover.

5. Mr Pastuch has always blamed himself for the death of the other driver.

6. He was doused in diesel fuel which had leaked into the cabin from the ruptured fuel tanks of his vehicle. He could smell smoke and became aware of a fire. He immediately feared that his truck was on fire. He feared being engulfed in flames. He became aware of a very significant injury to his right arm and other injuries. His co-driver was able to escape from the prime mover. He was trapped because of his injuries. He was terrified. Ultimately, through the help of other passers-by, he was extracted from the prime mover and immediately became aware that Kansy-Grosser’s vehicle had been engulfed in flames and he had been killed.

7. As a result of the collision, Mr Pastuch suffered multiple fractures in his right arm, an injury to his coccyx, a fractured clavicle, injuries to his back and neck, lacerations to his nose, general body bruising and a post-traumatic stress disorder.

8. Following the collision, he was transported by ambulance to Ceduna and then by air ambulance to Adelaide. In Adelaide, he underwent surgery in the form of an arthroscopy and decompression to his right shoulder. He then underwent a course of physiotherapy and later received psychological counselling.

9. As a result of his injuries, Mr Pastuch suffers ongoing pain and disabilities, and ongoing psychological symptoms. These will continue.

10. Mr Pastuch alleges that he will continue to be restricted in his ability to undertake activities of daily living, to participate in social and recreational activities and that he has suffered a loss of earning capacity. He contends that his loss of earning capacity includes his usual ability to earn an income as well as a loss of those benefits consequent upon earning income including superannuation benefits. He contends that he has received and will continue to receive and require to receive the benefit of gratuitous services from his family members and he will continue to incur expenses for treatment, assistance, equipment and transport which, but for his injuries, he would not have required.

11. Mr Pastuch also contends that as a result of his injuries, he has been unable to provide his spouse, the second plaintiff, the society, companionship, assistance and services in the manner in which he was able to prior to his injuries.

12. For her part, the second plaintiff alleges that she has suffered a loss of consortium and she claims damages pursuant to s 65 of the Civil Liability Act 1936.

13. In summary, Mr Pastuch claims damages for personal injuries sustained by him in the motor vehicle accident of 6 November 2016. He brings his claim for an assessment of damages under the Civil Liability Act 1936 (the CLA) and the Civil Liability Regulations 2013 (the Regulations). Before proceeding to my assessment of the evidence, it is necessary that I first state the relevant legal principles applicable to my decision.

    Relevant legal principles: The application of the Civil Liability Act to claims for personal injury damages arising from motor vehicle accidents

14. The issues for my determination have been narrowed as a result of an agreement on a number of matters reached between the parties.

15. As a result of a number of recent decisions of the Court it is unnecessary for me to discuss at any length the development and the background to the application of the relevant principles. These principles are explained in a number of decisions of the Court, and I am unable to add anything to the discussion of principle recorded in those decisions[1].  I need only summarise them.

    [1]    c.f. Plumridge v Pandelis [2022] SADC 42 per Judge Thomas; Raccanello & Ors v Motor Accident Commission [2023] SADC 84 per Judge Deuter

16. Following the 2013 amendments to the CLA, damages for non-economic loss (pain and suffering), future economic loss, gratuitous services and consortium are subject to a threshold based upon an assessment of an injured persons ‘injury scale value’ referred to as the ISV. That threshold is defined in the regulations.[2] There are different thresholds set for each set of damages which depend upon the ISV assigned to the injured person’s injuries and these attract a numerical value on a scale of between zero to 100.

    [2] CLA s 52(3)-(6): s 56A: s 58(4) and s 58(2).

17. There are other changes made to the manner of the assessment of damages for injuries sustained in a motor vehicle accident. Those damages are to be assessed under the requirements and the restrictions of the CLA including that, the consequences of a person’s pain and suffering must be exceptional; no damages are to be awarded for non-economic loss unless the ISV is at the numerical value of 10 or more. Once that threshold is reached, the numerical value assigned determines a number of matters. For example, in relation to future economic loss, under the CLA, damages can only be awarded if the ISV measure is 7 or more.[3] The new ISV threshold for a claim for past gratuitous services and for consortium is 10 for each.[4]

    [3] s 52(3) CLA; s 56A (2) CLA.

    [4] s 58(4) CLA; s 65 CLA.

18. In assessing the ISV, I am required to apply the relevant rules prescribed in the regulations which set out the requirements for medical examinations and the assessment of injuries. This includes the manner of determining an ISV, the way that multiple injuries must be treated, the provisions regarding diagnosis, causation, prognosis, future treatment, care or support and any other relevant matters.[5] This will include taking into account any other matter that I consider to be relevant in assessing damages or determining a claim for entitlement.[6]

    [5]    s 52(3)b CLA.

    [6]    s 76(1) (h) CLA.

19. The application of rules for assessment of damages when assessing an ISV are mandatory.[7] I have earlier referred to the decision of Judge Thomas in Plumridge and Judge Deuter in Raccanello. I respectfully adopt the approach of both of those learned Judges. It will be only to the extent necessary that I will make comment upon matters which are pertinent to my decision in this matter. In that context, it is appropriate that I set out a discussion of the applicable regulations and the operation of those regulations and the CLA.

    [7]    Parts 2 regulation.

20. A medical assessment will assist the court to determine the whole person impairment when assessing an ISV. I am required to give greater weight to a medical assessment of whole person impairment on a percentage basis, based upon a criteria for the assessment provided under AMA 5 than otherwise.[8]

    [8]    Regulation 17.

21. When I assess the effect of an injury, I am required to determine if there has been a permanent impairment. This is defined to mean: ‘…the impairment an injured person has or is likely to have after maximal medical improvement within the meaning of AMA 5…’. Psychiatric impairment is defined to mean ‘…pure mental harm…’.[9] Consequential mental harm following a physical injury is to be treated as a feature of that injury. It is not a separate injury.[10] Where there is a claim for pure mental harm, that claim must be described as the ‘GEPIC rating’ for psychiatric assessment. The acronym GEPIC refers to the guide to the evaluation to the evaluation of psychiatric impairment for clinicians.

    [9]    Regulation 3 (1).

    [10] Regulation 13.

22. In reaching my decision it will be necessary for me to analyse all of the medical evidence having regard to each of the ISV categories and the actual physical injuries suffered by Mr Pastuch. I will need to have regard to the use of AMA 5 to assess the alleged whole person impairment relative to the physical injuries and then to the GEPIC in relation to psychiatric injuries. All of the impacts of the injuries will be required to be considered by me in making my final assessment. This includes that the medical evidence must be analysed having regard to the content of schedule 1 of the regulations and, in turn, this requires my assessment of the impact of the psychiatric injuries suffered by Mr Pastuch. I am therefore required to determine the ISV relevant to his mental harm suffered as a result of the accident and this assessment requires a GEPIC rating to be provided. This GEPIC assessment determines the item number and the range of the ISV. I must analyse the psychiatric reports to determine whether the GEPIC scale is appropriately applied and then determine where the claim sits within the range of ISV.

23. Following agreement between the parties, counsel announced that there are a number of uncontroversial issues, and they are as follows:

    1. Liability is admitted by the Respondent as to the occurrence of the accident but there is 25 percent reduction of liability on account of the First Applicant’s failure to wear a seatbelt: Civil Liability Act s.49

    2.   The parties have agreed that the appropriate ISV Item Number  is the figure of 12 based upon the GEPIC Assessment of Dr Hundertmark. The parties agree that the final ISV figure of 25 applies to injuries, which for an accident occurring in the 2017 financial year, gives a figure for general damages in the amount of $17,850.

    3.   The parties agree that in the event the Court is minded to award damages based on the commercial rates for services provided, the appropriate rate is $51.00 per hour.

    4.   The parties agree that in the event the Court is minded to award damages for gratuitous care, the appropriate rate is in accordance with Regulation 19 of the Civil Liability Regulations and is $25.00 per hour (indexed).

24. In relation to the balance of issues for my determination, there is some agreement between the parties even though a number of these matters await my determination.

25. Past economic loss must take into account workers compensation payments required to be reimbursed pursuant to s 66 of the Return to Work Act and following the decision of the High Court in Fox v Wood.[11] I will also need to determine the extent to which the first applicant has suffered a past loss of earnings capacity from the date of the termination of his employment to the date of hearing.

    [11] [1981] 148 CLR 438.

26. I will need to determine the loss of superannuation and it is agreed between the parties that the rate of Superannuation Guarantee Charge of 10 percent is applicable to the calculation of this amount.  This agreed rate is then subject to legislative changes to the amount of the superannuation guarantee charge (SGC) applicable until the date of assessment of damages. The rate of SGC has increased incrementally over time.

27. I need to determine the amount of future economic loss suffered by the applicant (if any) following my assessment of the extent of his injuries and his loss of capacity. An assessment of future economic loss will also require an assessment of the loss of future superannuation. That assessment is based upon the extent to which the applicant would not be able to work in employment which would attract payment required of an employer under the superannuation guarantee legislation.

1. The applicants seek an assessment of damages payable under the heading of ‘Wilson v McLeay damages’ for the assistance provided to him by the second applicant while he was hospitalised. I will also need to determine whether the first applicant has passed the threshold set out in s 58 of the Civil Liability Act 1936 in relation to claimed gratuitous services. Under s 58 (2) CLA, damages awarded for the recompense of gratuitous services of, for example, a spouse are not to exceed an amount equivalent to four times their average weekly earnings. I may make an award in excess of that limit if I am satisfied that the gratuitous services are reasonably required by the injured person and it would be necessary, if the services were not gratuitously provided by a spouse, to engage another person to provide the services for remuneration. There is a contention to be resolved between the parties in relation to the limit under s 58 (2) and the operation of s 58 (3) CLA.

2. In relation to future care, Mr Pastuch bases his claim on the activities of daily living report of the physiotherapist Mr Varricchio.[12] Which has measured the extent to which he will require services to be provided in the future. An issue arises about whether these will be provided voluntarily and how an assessment should be made. Mr Pastuch seeks these payments to be assessed at the agreed commercial rate.

   [12] Exhibit A6, tabs 11 and 12, pp 48-86; tab 13, pp 87-104

3. The quantum of past special damages has been agreed. The parties have identified the special damages claimed in a document filed 9 December 2022 (FDN 28) after the exclusion of three items, namely Dingo Dirtworx Landscaping, Bargain Steel Shed Centre and Catpad Enclosures. These latter three claims have been agreed at one third in value. The past special damages agreed are in the following amounts:

   1.   Medical $16,698.36

   2.   Hospital $3,454.70

   3.   Travel $3,147.63

   4.   Other goods and services $840.75

   5.   Dingo Dirtworx Landscaping $1,462.67 (1/3)

   6.   Bargain Steel Shed Centre $2,976.67 (1/3)

   7.   Catpad Enclosures $446.67 (1/3)

4. The total of these amounts is $29,030.45. This sum is agreed.

5. I will need to determine the extent to which the applicant will require treatment in the future for his injuries and therefore I am required to assess future medical expenses.

6. Interest is payable on my assessment of past economic loss, gratuitous services and Wilson v McLeay damages. It is agreed that the rate of 5 % applies to this assessment.[13] It is also agreed between the parties that interest on past economic loss would not accrue for a period of 2 years following the accident which is when the entitlement to income maintenance under the Return to Work Act would cease.

   [13] c.f. Plumridge v Pandelis [2022] SADC 42.

7. The second applicant, Ms Lewis, makes a claim for loss of consortium.

8. In this action the ISV figure is agreed. My task is to review how the medical experts have considered and dealt with the issues that have defined the ISV category having regard to the physical injuries and the psychiatric injuries allegedly suffered by Mr Pastuch. This will involve the use of AMA5 to assess whole of person impairment (WPI) and the GEPIC ranges for any psychiatric injury. My final assessment will depend upon the level of permanent impairment of the shoulder of Mr Pastuch, the claimed associated back injury (which is in contention) and the assessed WPI. It will then be necessary to assess Mr Pastuch’s psychiatric injury. My analysis of the expert psychiatric reports requires me to assess whether the GEPIC scale has been properly applied. These matters all depend on my assessment of the evidence to which I now turn.

   The evidence of Mr Danny Pastuch

9. Mr Pastuch was born on 22 December 1973 in South Australia where he has lived for the whole of his life. He received his primary and secondary education in Adelaide and left school in Year 11 in order to obtain employment. At that time, he lived with his family in a northern suburb of Adelaide.[14]

   [14] T29.

10. His first job involved doing labouring work in a furniture store and he then obtained an apprenticeship in carpentry. Initially he did wood machining work and then moved onto making deliveries in a truck. He found that he enjoyed truck driving more than working in a factory.[15]

    [15] T29-T30.

11. Mr Pastuch has always had an interest in motorsport and motor vehicles of all descriptions and from the time he obtained his driver’s licence, he rode motorcycles for enjoyment particularly at an off-road park near Port Gawler.[16] One of his hobbies included the building of racing cars and drag racing cars and he did some mechanical work on these vehicles which he enjoyed very much. His brothers were mechanics and panel beaters and he learned skills from them and eventually he was employed with his brothers in their businesses.

    [16] T31.

12. He built a full street drag racing holden Torana which he raced, repaired and preserved. He did all of the work on that vehicle.[17] Over time, he moved onto motorbike riding, jet ski skiing, water skiing and other water pursuits. The family did this on the River Murray between Mannum and Blanchetown. He did this almost every weekend with his brothers. He also had a boat which he used with his brothers and his father to go fishing.[18]

    [17] T31-32.

    [18] T31-32.

13. Prior to the accident he did a lot of work for friends on their motor vehicles. Friends would bring their vehicles to his home, and he would assist them in repairing these vehicles. This was something he really enjoyed.

14. He has an older son Brandon born on the 25 April 2000; Brandon was a child of a previous relationship of Mr Pastuch and he is now 23 years of age.[19]

    [19] T39.

15. In 2000, Mr Pastuch became a fulltime truck driver for the business North East Removals and he mainly travelled interstate from Adelaide to Brisbane. This was a generally a four-to-five-day turnaround. He would take two days to drive a semi-trailer to Brisbane, unload the truck and then re-load and take two days to get back to Adelaide. In Adelaide, the semitrailer would be unloaded, it would be reloaded and during that time, he would have one to two days off. He would then drive back to Brisbane. At that time, he involved himself in the actual physical loading and unloading of the furniture to be put into the removal truck. In that role he assisted in the job of loading and unloading furniture for the proprietors of homes which retained the business to carry their furniture and effects. He was therefore involved in loading the truck, unloading it and reloading it. In the period between 2001 and 2003, he drove by himself which he enjoyed. He has always enjoyed long trips driving semi-trailers.[20]

    [20] T35.

16. Eight years ago, he married his partner, Samantha. When they met, she lived in Melbourne and he was by then, driving to Melbourne on occasions. Between 2004 and 2006, he moved general freight for Lang Transport from Adelaide to Perth and Adelaide to Melbourne. His duties generally were driving, and he was only physically involved in the chains, straps and tarp work associated with securing his load.[21]

    [21] T36-T37.

17. In the period 2006-2008, Mr Pastuch was employed by the business Wakefield Transport, and he drove general freight interstate. In that work, he was involved in securing straps and tying down the loads. He then drove loads from Adelaide to Melbourne or Adelaide to Mildura. He also did some local delivery work for Inghams Chicken.[22]

    [22] T37-T38.

18. Initially, his relationship with his wife Samantha Lewis was long distance. They would meet up in Melbourne and go out for a meal and over time they decided that they would live together, and she would move to Adelaide. That necessitated her leaving her mother in Melbourne. When she first came to South Australia, Ms Lewis moved into the family home with the parents, and brother of the applicant. This was quite a ‘sea change’ for Ms Lewis as she had previously lived alone with her mother. Soon thereafter, they moved out to a house in Burton which was a three-bedroom home with an entertaining area, a pool, a spa, a pergola and barbeque areas.

19. The applicants then used the house at Burton as a place of entertainment and they entertained the family there with friends on many occasions. They regularly entertained many groups of people at that house. Mr Pastuch’s son Brandon would also stay with them every second weekend and on those occasions when Mr Pastuch was working, Ms Lewis looked after Brandon. This relationship worked well.[23]

    [23] T38-39.

20. In 2008, tragedy struck the family when Mr Pastuch’s brother Tony was killed in a motorcycle accident. This affected Mr Pastuch very deeply as the brothers had a very close relationship. Mr Pastuch then took on the role of fathering his brother’s children and he helped out around the property for his brother’s wife. It was not until 2009 that he returned to driving for Edgar’s Transport. He worked for that company between 2009 and 2010 and he was employed to drive road trains to Roxby Downs or to Melbourne. It was necessary for him to transport sulphuric acid between Adelaide and Roxby Downs. He obtained the special licence required to drive trucks carrying sulphuric acid. He only ever returned from Roxby Downs with an empty vehicle.

21. In 2009, his father suffered a stroke and died. Then in 2010, Mr Pastuch’s brother Andy died from a sudden heart attack aged only 41. He very deeply felt all of these losses as they were a very close family.[24]

    [24] T40.

22. In 2011, his daughter Jayda was born, and she was a very active child who loved the outdoors, water skiing and sport in general. She enjoyed the jet ski and riding with Mr Pastuch. She also enjoyed riding motorcycles.

23. Following the birth of Jayda, her mother, Ms Samantha Lewis, suffered postnatal depression and so Mr Pastuch continued working but at lesser hours so that he could give parenting assistance.[25]

    [25] T42-42.

24. Over time, Mr Pastuch changed employers on a number of occasions for better pay and better conditions. He always preferred to do long distance driving and more latterly this included working for a business ‘Old Number 7’ driving an Adelaide to Sydney run and an Adelaide to Melbourne run. Also, after his brothers passed away, he wanted to be near home with his partner Samantha and his daughter Jayda and so he cut back on the number of trips he was doing for lifestyle and conditions. He then worked for AR Transport during 2015 doing refrigerated van runs from Adelaide to Sydney and Adelaide to Melbourne.  It was his intention and I am satisfied that once the family situation stabilised then he would work to recommence his usual work patterns. At the time, he also realised that in order for the family capital and income position to be stabilised and for their dreams of another more remote home to be purchased it was necessary for him to work extra hours and shifts. This realisation evolved slowly over time. Mr Pastuch and his wife had a dream of living in a more rural environment on a larger block of land to improve their lifestyle and for better education opportunities for their daughter Jayda. This would always require a greater source of capital and income.

25. Later in 2015, he commenced employment with HPS Transport as an interstate driver doing refrigeration work. The loading work for the trucks was done by forklift and so he was not involved physically in doing any of the loading work. The business operated out of a Regency Park depot. [26]

    [26] T42-43.

26. At about the same time, he and Samantha commenced a limousine business doing driving, vehicle cleaning, weddings, school formals, school graduation and other special occasions. His intention was to commence this business, to develop it and to bring it to profitability so that he could reduce his highway work and then live closer to his family. However, after that business started, he was doing a lot more work, the business was not initially sufficiently profitable, and was a drain on capital and it was necessary for him to continue driving road trains.[27] This compounded the need to work more shifts in order to maintain the income and capital base of the family.

    [27] T43-44.

27. Mr Pastuch and Ms Samantha Lewis had by then also made a number of lifestyle choices. The home in Burton was mortgaged but they also had purchased a bigger, better property in order for the children to be able to recreate at home and do things such as ride their motorbikes. Their family could also grow. To that end, they decided to sell the limousine business and they purchased some land at Freeling and commence building work on that land.[28] They did not sell the Burton property and held it as an investment property. This was because Mr Pastuch’s older brother had investment properties and they considered their own retirement by holding the Burton property as a smaller property that they may return to when they retire.

    [28] T44.

28. The block of land in Freeling was 1800 square metres in size and a firm of builders was retained. The building work started about 12 months before the accident and the building work was completed reasonably quickly.[29]

    [29] T44-45.

29. At the Burton house, Mr Pastuch did all of the outdoors work such as maintaining the house and the yards, the pool, some of the cars and anything else. He also helped out on domestic chores at home. He did not want to get in people such as a cleaner and gardeners. He wanted to do it all himself as he considered himself a handyman. His wife was looking after their daughter and so he wanted to do as much as he possibly could outside of what she was doing. He also ensured that he would have a day with his daughter and son when he came home from doing a trip.

30. He found that the pool and spa were constant work and that this was necessary to be done because, for example, Jayda loved the pool. Another aspect of their activities was that Samantha Lewis does animal and wildlife rescue work. He was able to set up a sanctuary for her within the yard. Eventually their thinking became that the house at Freeling would be another step to get something later in life to operate an animal sanctuary or even to buy land as a sanctuary. Over time, he found that Samantha Lewis was always taking in stray animals at home which she was looking after and so the demand for these sanctuaries continued to increase. His plan before the accident was also to replicate the entertainment area at Freeling that he had at Burton. His plan was also to do this as a handyman because he was capable of doing a lot of the building work himself particularly, the yards, the shedding and other things such as the animal shelter.

31. The plan of Ms Samantha Lewis and Mr Pastuch was that Jayda would be educated at a country school which they thought would be better overall for her education. Also, his plan was to fund the building of the house at Freeling through truck driving and working generally and so he chased the best money he could possibly achieve through truck driving.[30] Therefore, he drove almost constantly for the period between the period between 2016 and 2017 when the accident happened. Outside of the driving work he was doing handyman work around the home, domestic work inside the home and also automotive work. He had a workshop shed at the Freeling home. It had a hoist, and he would work on motor vehicles at that place.[31]

    [30] T46-T47.

    [31] T47.

32. Prior to the collision, he had a lower back injury. He saw a physiotherapist for treatment regularly about every month or so but it was nothing major and certainly did not stop him working as a truck driver, as a handyman around the house, domestically or on vehicles in his workshop. The treatment given by physiotherapist was to do massages and to give him exercises which he did. He had no issues working because of any back injury prior to the accident.[32] It was more of a slight aggravation rather than an injury.

    [32] T47-49.

33. The only other injury he had was a cut to his right hand caused by an accident with a circular saw. That injury does not have any impact upon my deliberations. It was a serious cut and required a large amount of surgery to repair the hand. Mr Pastuch regained full function in his right hand. He was off work for a time. He was able to demonstrate to me that for example, he had full range of movement in his hand, and that he could open and close his fingers. He thought he had about 95 % use of that hand and had regained full feeling in the hand and in his fingers.[33] That injury also did not stop him from doing work around the home.

    [33] T47-49.

34. In their home Ms Samantha Lewis looked after their daughter Jayda. He then did jobs such as cleaning, sweeping, the dishes, washing clothes and anything else that needed to be done. He did everything because he does not like hiring outside help to do what he considers to be the household tasks that he could perform.[34]

    [34] T48-49.

    The Accident   

35. On the day of the accident, Mr Pastuch was driving for HPS Transport. The trip was to Western Australia. It was called a two-up drive, which means that he would be driving with a partner. And on this occasion, his driving partner was a friend, Mr Michael Ormos whom he called Mick. It was Michael Ormos who had encouraged him to seek employment with HPS Transport.

36. The truck left the Regency Park depot and Mr Pastuch was the first driver. He took the Adelaide to Iron Knob shift and then Mick Ormos drove from Iron Knob to Penong. He was then to take over at Penong and drive towards Perth.

37. They stopped at Penong at about 3.30 am to refuel. It was dark.[35] After leaving Penong, daylight gradually developed and Mr Pastuch can recall the sun in the east, in the background of the truck. This was about 6 – 7 am. He could see the first shafts of light and the lights of the truck were operating. The truck was approaching Yalata and was about ten kilometres to the east, or the Adelaide side of Yalata. This highway was a typical dual carriage road with a ‘shoulder’ on either side. There was a drop from the shoulder to the land level. Mr Pastuch recalls that although it was the open highway on which they were travelling, the carriageway was narrower rather than broader.

    [35] T49-50.

38. On the road, he could see another truck coming towards him. It was also a B-Double truck. He noticed that the headlights of that truck were over the centre line of the road. He initially thought that this truck could have been swerving around livestock or something on the road. That is not an unusual occurrence on the run across the Nullarbor. He thought that it was a warning to him because trucks swerve around things on the road.

39. He was initially not concerned about that truck when he first saw it but as the vehicle got closer and so approached nearer, he started to panic because he could see that truck was not resuming the correct side of the road, but it was driving more towards his side of the road. At the time, he tried to contact the other driver on the radio. When he was using the radio, he realised that there was going to be an accident because the other truck was not pulling back to its side of the road as would normally be expected. It just stayed out in his side of the road.[36]

    [36] T50-51.

40. Mr Pastuch said that he panicked. All the while he kept watching the other truck and was pulling his truck off to the left-hand side of the road as much as possible without hitting the dirt. He feared that he would lose control of his truck if he hit the dirt too quickly. Eventually he pulled his truck so far to the left that it did hit the dirt. At the very last second, he pulled the steering wheel of the truck very hard to the left to veer off the road so that the truck would roll off the road. At that point, the collision between the two trucks occurred. The other truck kept going straight at his truck.

41. His belief at the time and something that he was always told, was that if he was in a head on collision with two trucks, he would never survive. He knew that he was doing around 100 kmph, that the other truck would have been doing around 100 kmph and their combined speed would be 200 kmph. The combined weight of the trucks and their cargo was in the order of between 50 to 100 tonnes. All of these factors combined to completely terrify Mr Pastuch. He always believed he would not survive such a collision. His codriver was asleep in the cab of the prime mover.  He could do nothing to avoid the collision and he thought that his fate was sealed.

1. Despite his best efforts, and despite him pulling his truck to the left and rolling to one side, there was a head on collision. This was because as the road was not very wide, he had been trying to stay within his lane which was about 4 metres wide and there was only about 1 metre of dirt verge on the road. After the dirt verge, the road dropped straight off.[37]

   [37] T74.

2. He can recall that as he saw the other truck coming towards his truck, his thoughts were about how to swerve and avoid the truck and he thought that his survival instinct kicked in. He did not really think about death, just trying to avoid death via the collision. At the last minute, he thought that if he could roll the truck, he might survive, whereas, if he had a head on collision he would never survive. Therefore, the key was survival and that is why he pulled the steering wheel to the left. The other truck came straight across the road and hit head on. It all happened within milliseconds. He could not recall if he hit the horn of the truck but can recall flashing his lights and trying the radio. Despite his efforts, the other truck was all over the road, he was getting further and further onto his side of the road, and it reached the point of no return.[38]

   [38] T52.

3. He can remember the impact quite clearly. He recalls tensing up and then on collision, everything going black. That was all he could recall. He woke up lying on the side of the truck in the passenger side and his truck was still sliding; eventually it came to a complete halt. When it came to a complete halt, he was lying again against the passenger side door of the truck. He was covered in diesel fuel. He was out of the driving chair and laying on the passenger side chair virtually in the corner of the door up against the windows. Diesel fuel was running down into the cabin of the truck. This was because the other vehicle took out the whole of the right-hand side of the truck and so ripped open the fuel tanks which had just been filled. The diesel kept pouring into the cab. When he realised that he was being covered in diesel fuel, he grabbed his quilt and wrapped himself in it to ensure that he did not get covered in diesel fuel.[39] He feared that his cab would burst into flames.

   [39] T52-53.

4. Mr Pastuch found that he could not get out of the cabin of the truck, and he was stuck there. He could not move. He could not get out. Soon afterwards, Mick Ormos his co-driver woke and asked what had happened. He was able to tell him that there was a head on collision. Mick had chest injuries and they both noticed that the motor and the truck was still running. They isolated the motor and Mick was able to climb up and out of the cabin and call for help.

5. At the time Mr Pastuch was also calling for help but at the same time he could also hear flames and an explosion. He could hear the sound of something burning. He was terrified. He thought it was actually his own truck that was on fire. If that was the case, then he would likely be incinerated because he was covered in diesel. He recalled screaming for help from the corner of the truck.[40] Mick Ormos got out of the truck through the top driver’s side door. Because of his injuries, Mr Pastuch was unable to get out of the truck. He was alone in the cabin. Mick got to the front of the truck and was looking in. At about that time, another Kalari truck arrived. He spoke to the driver of that truck and told him that he was trapped. Eventually, the other driver of the Kalari truck came and smashed the window of the prime mover. Unfortunately, in the middle of the Western Star truck, there is a steel bar which is a reinforcement rod that runs down through the window. It became necessary to not only smash the window but also to smash this steel bar and then the second window to enable Mr Pastuch to get through it.

   [40] T54.

6. Whilst this was all happening, he thought that his truck was on fire. He was then told that it is the other truck that is in flames. He asked about the welfare of the other driver and was told that he was dead.[41] He was devastated as he believed he had killed the other driver.

   [41] T54-55.

7. After he was rescued from the truck, by rolling through the hole in the window and pushing his way out, Mr Pastuch walked about ten to fifteen metres from the front of the truck. He found his microwave which had been thrown out of the cabin and he sat on it. He was in a daze. He saw that his truck was on its side, and he saw the other truck which was completely on fire. He thought it was the worst thing that anyone could ever see because of the carnage. He watched the other truck in which the other driver was killed continue to burn. This compounded his grief about believing he had killed the other truck driver. Mick Ormos was lying on the ground complaining of his chest injuries. He had thought he had a heart attack.

8. Eventually, other trucks stopped, and they were given assistance from personnel from a nearby mine. He vividly recalls watching the other truck being fully on fire and it continued to burn.[42] All he could think about at the time that it could have been him and although he was grateful for being alive, he thought that he could have died, and someone is dead.

   [42] T55-56.

9. The ambulance came after about two hours, and they were taken back to Ceduna from where the ambulance had come. When he was taken in the ambulance, he could still see the burning truck. Although he had limited reception on his phone, he was able to make a quick phone call to Mick Ormos’ wife and asked her to call his wife and to tell her that he had been in an accident. He recalls that at the time this call was made, he was terrified that his children would not have a father.[43]

   [43] T55-56.

10. He recalls that in the ambulance, he was given a ‘green whistle’ for pain relief. He was told to suck on that when the pain became too intense. Mick was sitting in the front seat of the vehicle and was being dealt with for his chest pains. He became aware that he could not move his right arm because it was just the top bit of bone that was moving. He was holding his right arm. He also became aware that the bridge of his nose had been ripped open and there was blood everywhere. He became aware that the skin on his nose on the right-hand side had been ripped and flipped. He recalls that he was not then in pain because he was in such shock. He knew that he had gone through something extraordinary and that every part of his body was sore.

11. As the effect of the shock started to wear off, he became aware of the pain that he was suffering. After about 30 minutes he could feel severe pain from his right arm and general soreness from the accident. He was in pain all over his body.[44]

    [44] T57-58.

12. He tried to ring his wife from Ceduna Hospital, but he could not speak when he heard her voice. He broke down. The nurse took the phone and spoke to his wife. He could not speak to his wife until he arrived at the Royal Adelaide Hospital; he was conveyed there by a Royal Flying Doctor plane. He recalls that he was quite ‘out of it’ when he got to Adelaide because the Ambulance Officers had injected him with pain killers. He knows he had been injected with morphine.

13. He thinks that his wife was at the Royal Adelaide Hospital when they arrived. He was then treated at the hospital. He was thinking then, and this thought process has happened constantly ever since about the other truck driver dying as a result of the accident. He knew of many friends who had passed away on the highway due to some sort of circumstances such as collisions. He always thought about them and especially about their families and how they are coping.

14. He recalls that at the RAH, his arm was clamped because the bone was completely smashed and only the top part of the bone shifted, when he moved his arm. He needed plates inserted by a surgeon because the bones would not sit properly and heal. He now has a large scar down the inside of his right arm.

15. While he was in hospital, Samantha Lewis visited him every day and she would clean and shower him. She would make his bed and she feed him. She did everything for him that he needed. He used a catheter bottle to urinate, and she helped him with that too.

16. He eventually had an operation on his arm, and he was discharged the following day. At that time, he was very distressed and was in pain.[45] He was not seen by a plastic surgeon at the hospital. The wound on his nose was covered and when it was reviewed, it was found that there was tissue growing over the wound and it could not be assisted by any form of plastic surgery. There were no stitches in the wound.

    [45] T60-61.

17. At the time, his boss at HPS Transport was Mr Tony Geanardo. He visited Mr Pastuch in hospital after a period of time. He said that he found it impossible to visit him earlier. This devastated Mr Pastuch because he thought that Mr Geanardo did not have the courage to come and face him because the accident was so bad, and it was only after about three days that he came to see him. Mr Geanardo apologised for failing to see him earlier.

18. He also was interviewed by the police at the hospital, but he could not recall everything that had happened.[46]

    [46] T61-62.

19. Mr Pastuch was discharged from hospital on 13 November 2016 and for the first eight to nine months after discharge, he lay on a lounge at home supporting his arm and watching TV. He could not do much activity. The arm was broken badly, it was plated and there was a significant wound. He also had shoulder pain. He was continuously at the doctors, and had physio to get movement back into his shoulder. He became very stiff in his joints and in his body and his back pain began to increase over time due to inactivity.

20. After being at home and in order to get to the doctors, his wife drove him to those appointments, or he would get a taxi. He could not drive for about seven or eight months. Eventually he started driving with his left hand in an automatic car.

21. When Mr Pastuch left hospital, his arm was in a sling and that remained the position for a couple of months because he had to keep resting the arm. He was then put on a return-to-work programme. He had to work a couple of hours a day and then put the arm back in a sling and relax his shoulder. He therefore wore the sling intermittently. He was also doing movement exercises with the physio so that his shoulder would not freeze up. He generally used the sling at home.[47]

    [47] T62-63.

22. At the time of the accident, the home at Freeling had been built and was at lock up stage. It was time to move into the home. However, at that time he was regularly being seen by the orthopaedic surgeon and the physiotherapist at the RAH. He could not really do any work in assisting the move from Burton to Freeling.[48]

    [48] T63-64.

23. He did not do any activity around the house until Christmas of 2016. He therefore spent about six months sitting around on the couch. He went back to work after about nine or ten months and after that time, he attempted to help out his wife. They brought a small light weight cordless vacuum so that he could help to vacuum the house, especially on the hardwood floors. He tried to take some pressure off his wife. His wife or cleaning people did most of the jobs. The maintenance people did his yard. Workcover funded the cleaner and when the cleaner was not there, his wife was the only person looking after him.[49]

    [49] T65.

24. Between January and June 2017 Mr Pastuch needed his wife’s assistance to cook, to use the shower, to get dressed and to use the toilet. At that time, he did nothing around the house and the gardener came in regularly to do all the gardening work. Apart from that, no one was doing the gardening and if that did not occur, there was a significant problem with weeds at Freeling. It is a rural farming community.[50] Weeds were a perennial problem because they would blow in on the wind and germinate quickly. They required constant attention. The usual daily routine was that his wife would get up at about 5 am and start doing the cleaning and the housework. She would then shower and dress him, and he would then walk around the house from room to room. She gave him meals whilst he sat on his recliner chair, and he would try to occupy himself for the rest of the day. He started to do more things after his physio gave him further exercises and asked him to do more movements and stretches. He did these himself but sometimes needed a hand from his wife to do those exercises.

    [50] T65-66.

25. He found that in the period after getting out of hospital until about the end of July 2017, he did not have anything to do with his daughter Jayda because he had become aggravated, rude and obnoxious through his constant frustration. He felt that his life had disappeared, and he really did not do anything with his family. Prior to that, he had a very good relationship with his daughter and had tried to be the best father that he could be.[51] After the accident his relationship with his daughter almost came completely to an end. This was because she was a very active chid and she wanted to be doing things all the time. He could not do those things and did not want to do them because they caused him pain. His evidence was that he became something of a vegetable and did not want to do anything. He became snappy with Jayda when she asked him to do things and she eventually stopped asking him. To this day, he does not do much with her. She is now between 11 and 12 years of age. He had brought her a new motorcycle for her to go out riding with him. That motorcycle is still sitting in the shipping container in the backyard because he does not take her out. He cannot take her riding because of his arm and shoulder injury and that is something that he used to do at least once a month. He cannot do this now no matter how much he wants to because it is too hard.[52]

    [51] T66.

    [52] T68.

26. Everyday reminds Mr Pastuch of the accident whether he is on the road, or in a truck, or doing anything else. He is also reminded when he gets any sharp pains in his arm when washing his hands, or when out in the backyard, or when his wife asks him to do something. It occurs when he looks in the mirror. No matter what he does, everything reminds him of the accident. He has found that it is something that will never go away, and he has tried to learn to live with it, but he has failed.[53] After the accident, he initially hated being on the road, and spent a lot of time being driven by someone else such as in a taxi, where he was not in control. If he drove, he found that he was driving over the white line on the left-hand side of the road in order to be as far away as possible from oncoming traffic. He would swerve away from a truck or a car if it was coming the other way in order to avoid it. This is still a problem for him. When he first began to drive and he saw trucks on the road, especially coming towards his vehicle he had a number of panic attacks. This was in the form of a really bad cold shiver through his body.  Then he would start sweating, he would breathe heavily, and he would have to pull over. In order to recover, he would need to get out of the vehicle, walk around and then have a drink.[54]

    [53] T69.

    [54] T69-70.

27. Workcover sent him to a psychologist for treatment for his panic attacks, but this did not assist because he did not know when they would come on, and why they would occur.[55] He also had problems filling up at a petrol station because he would detect the smell of diesel, and this made him panic and took him back to the accident. As a result, his wife had to fill up the vehicle. This panic also came upon him when he was working back at the yard at HPS Transport. He would smell diesel when the trucks were being refuelled and he had to go off and get away from that smell and then relax. He also had issues with panic attacks associated with aircraft. He recalls that his wife was flying out of Adelaide airport, and he had a real difficulty standing in front of the window and watching her get onto a plane because at the same time, a Flying Doctor Service plane landed. He started shaking and went into the foetal position. He was assisted by a number of people at the Adelaide Airport. He thinks that event lasted about ten minutes or so. He had the same experience when he was at the showgrounds, and he was walking toward the Royal Flying Doctors Service exhibit. He could not go near it and had to walk away to the other side of the pavilion. Things are improving as he has been able to attend at the airport recently, without having a panic attack.[56]

    [55] T70-71.

    [56]  T71-72.

28. After leaving hospital, Mr Pastuch did not sleep well. He kept waking up screaming and his wife told him that she could hear him in his sleep screaming words to the effect of ‘get me out of here’. He does not recall many of these dreams. He remembers the dreams of the trucks colliding, and the dream then switches to his truck lying on its side and then he wakes up.[57]

    [57] T72-73.

29. Anything can bring on thoughts of the accident and cause Mr Pastuch to revisit its terror. This could be a TV show or a loud noise. He saw a TV report of another truck accident near Tailem Bend during a news item and then had a very large panic attack in the loungeroom of his home. This is because he cannot forget his own accident and he is always remembering something about it.[58]

    [58] T73.

30. Initially Mr Pastuch had problems driving or driving in a vehicle on metropolitan roads. He is now getting better because when he is driving, he knows he has the option to pull over. This now happens most frequently on the highway. He feels much safer on metropolitan roads because he is more relaxed than he is on the highway. Even so, he is still apprehensive around the city when cars are coming towards him on a road. He is worried about driving to the Riverland for skiing and jet skiing because it is a single lane road and cars are always coming toward him. He finds himself getting more and more tense the longer he drives in the country.[59] All of this has made him consistently irritable, grumpy and snappy with his family whilst he is at home.[60]

    [59] T73-74.

    [60] T85.

31. Mr Pastuch returned to work at HPS Transport in the second half of 2017. Initially he went back for a few hours per day for a couple of days a week. He was involved in a ‘get back to work’ scheme where he worked to increase his hours and days until he felt better able to cope.[61]

    [61] T75.

32. He found that initially, he had real difficulties with his right arm at work, even performing light duties. He was mostly driving a work utility to pick up parts for trucks, and then stacking them on shelves. When he had to do fifty or so of these tasks repetitively, his arm became sore. It was not the weight of what he was doing, but rather the repetition. He also did some sweeping around the yard, and he found that he was really not happy being around trucks even though there were trucks everywhere in the truck yard. In particular, he was affected by the fact that the truck he was driving, and which was involved in this accident was still in the yard when he went back to work. That stayed there for at least eight months after he was back at work.[62]

    [62] T75-76.

33. Mr Pastuch’s shoulder problems caused by the accident got worse when he was at work. He therefore consulted with his GP and then with the shoulder specialist Dr Ward. He first saw Dr Ward in April 2018 and further surgery was recommended as his symptoms were getting worse. He had a further operation on 16 May 2018 and then further physio treatment. He got some assistance from the operation because he was able to increase movement in his shoulder by 30 %. The shoulder joints were scraped, and the bicep was dropped to allow for more movement. Mr Pastuch went back to work after the second operation, but still on light duties. He found that he was able to do more around the house, not necessarily with the right arm but he was able to help with cooking and other smaller tasks. He could not use his right arm to cut anything, or to open any jar or bottle as he could only use one hand. This has now resolved. He still cannot hold things for an extended period of time, he cannot change a tyre on his car; and he now uses his left hand for anything that requires strength.[63]

    [63] T77-79.

1. On his return to work at HPS Transport, he was again placed on light duties through Workcover. Over time he was pushed by management to do harder and harder work. He was eventually told by HPS Transport that they wanted him to get back to truck driving, including, initially semitrailer work and then road train work.  He was not prepared to do this. He was not prepared to get back behind the wheel of a truck. These conversations occurred about three months before he was sacked by HPS on 6 March 2021 and after Workcover’s return to work process had finished.[64]

   [64] T79-81.

2. Ms Lewis recalls that Mr Pastuch had a second shoulder operation in May 2018. Prior to that time, his general mood was very angry, and he would fly off the handle for no reason. He would come home from work grumpy and sore.[65] His condition improved after the second shoulder surgery, but he pushed himself too hard at work. He became very self-conscious of the unsightly scars on his arm and on his back from the surgery. He also had a scar on his nose. When he went back to work, he thought that HPS Transport were forcing him to do things that he did not want to do and could not do. He did not want to go to work and because of the security system within HPS Transport, he was always under observation. He could not take a break. He complained about taking a break and then being called to the office to explain what he was doing.

   [65] T305.

3. Before the accident and when he was living at Burton, it took little time to get to his workplace. After they moved to Freeling, he is considerably further away from his work and initially it took about 45 – 50 minutes to get there. This compared to 20 minutes travelling when he lived at Burton. When he did road train work to Perth for instance, he would only need to travel to work once per week. Since the accident and then his return to work, he travelled to work six times per week.[66]

   [66] T98-99.

4. Mr Pastuch’s principal problem, over and above his physical injuries was that he was continuing to have psychiatric problems. He had panic attacks when driving out on the highway and when driving locally. He would start sweating, breathing heavily and would have to stop his vehicle and try to calm himself down. When these panic attacks initially happened, he rang his bosses, and they were understanding. He was told to take it easy and get the truck back to the depot. He waited until he calmed down and it was safe for him to drive and brought the truck back. The first trigger for these attacks was just being in a truck. Next it was going around a roundabout and doing other work required of a truck driver. On the first occasion, he was told to go home and have the day off.[67] However later there were times when he did not get a favourable reaction when he had a panic attack. He was told that the company could not give him any assistance. He had to get himself back and he was required to do his job or get fired. He just had to continue.[68]

   [67] T81-82.

   [68] T82.

5. He took time off work as a result of these panic attacks which he called stress leave. At the same time, he had also been having suicidal thoughts. These had occurred since the accident as he did not think that he should be alive. He became very depressed at home. He thought everything in general was his fault and he did not want to live with the thoughts of seeing a head on collision every day running through his head. He just could not do it anymore.[69]

   [69] T83-84.

6. Mr Pastuch continued to have flashbacks of the accident and the other truck hitting his truck, the images surrounding the circumstances of the collision; and the photographs that he had seen. It was continually recurring vision of the accident. He often visualised another truck hitting him whilst driving on a road and another truck was coming towards him. He has been there before and knew how it happened.[70] He also found that at work, he lost his temper when previously he would not have done so. He told his employer that there were things he just could not physically do, like heavy pallet jacking, loading trailers and similar work. In the yard, this work was done by forklifts but on the road, it had to be done by manual labour.

   [70] T84.

7. On one occasion Mr Pastuch got so angry that he raised his voice and swore at his superior, telling him that he could not do the sort of work required of him and he would not be doing it. He was disrespectful because he was in agony, and he was continually asked to do work that he could not physically do. Swearing and raising his voice was very much out of character for him because he was brought up and taught by his parents, especially his father, to be respectful.[71] His biggest problems were however out on the road, because it was there that he was required to do jobs that, he just could not do anymore.

   [71] T84-87.

8. He was terminated from his employment with HPS Transport on 16 March 2021. The lead up to his termination was that he had been required to drive a semi-trailer up the freeway and then towards Lenswood.[72] It was then necessary for him to pallet jack 34 pallets, which he could not do because of his arm. He also did not want to drive that far because he knew by then that the was suffering from a post-traumatic stress disorder. He dropped into Mount Barker and stopped for a while to have a break. Eventually he got to Lenswood. When he left the premises of HPS Transport he was told that it was a simple load, but this was not the case. He refused to do the work that was required of him and then he got very angry.[73]

   [72] The stated destination area was the apple growing area of Lenswood but nothing turns for the difference.

   [73] T88-89.

9. He did not do any loading work at Lenswood; he swapped trailers and came back down to the depot in a very bad mood and was told to go home.[74] He had abused and sworn at one of his supervisors.

   [74] T89.

10. A couple of days later he was called into work for a meeting. His wife went with him and after a discussion, his bosses told him to go home, and they would think about what they were going to do. He spoke to his GP on the 11 March 2021 and he was advised that he needed time off work. On 16 March 2021, his work rang him and told him that he was fired. He received a letter of termination.[75] The sole reason he had continued doing the work, knowing that he could not do it, was because he had bills to pay. He had a family to support, and he had no choice. He had debts on two houses. After being terminated, Mr Pastuch was unemployed for a period of about a year. He tried to get work but found that in his condition he could not. It was either going back on the highway, doing long haul work or not working at all.

    [75] Exhibit A1, page 269-296; T89-91.

    Current situation

11. Sometime later Mr Pastuch became aware, through a friend, that a tow truck was available for purchase. He was told that tow truck work was light work and so he purchased the tow truck, which he funded through his wife’s inheritance. Her mother had recently passed away. He started to offer services as a tow truck operator to retrieve vehicles that had broken down. He found the tow truck work easy; he could work his own hours and do only the jobs that he wanted to do. He also only went to break downs, and not accidents, as he could not be at an accident site. Mr Pastuch is currently self employed as a tow truck driver. Most of his work is on call, and therefore he can choose his own hours. If he is sore on any particular day, he finds another driver to do the jobs that come up, or just does not accept any jobs on that day.

12. The mechanism on the tow truck is a hydraulic automatic lifting mechanism. Mr Pastuch can use an air lever that shifts up and down and he can do that left-handed.[76] His wife does all of the administrative side of the business, which operates as a partnership, and all of the current earnings are used for fuel repairs and capital.[77]

    [76] T93-94.

    [77] T94.

13. Most of the driving required is in the country, and Mr Pastuch sits on 90 kmph in a 110 kmph, zone just to be cautious. He finds he is very cautious when driving, perhaps over cautious. He sometimes has minor panic attacks when driving, whereby he holds onto the steering wheel very tight and closes his eyes. This does not happen very often. He always keeps a significant distance between himself and the next vehicle. I understood his evidence on this topic to mean that the distance so maintained may otherwise be viewed as excessive.

14. He found that he was not able to continue with semi-trailer and road train driving.  He is simply not able to do that work anymore. He does the tow truck work because it is the only thing that he believes he can do. He intends however to employ another driver to take over the driving side, because he finds that driving every day is a reminder of what can happen. He is continually scared and ‘freaks out’ about other people driving trucks towards him on the open road.[78]

    [78] T95-96.

15. The second applicant, Ms Samantha Lewis does all of the administrative work for the business essentially because Mr Pastuch is not able to do it. He is not good with computers, and he does not think he could be trained to use them. He does no paperwork, only the logbook work and signatures. This was also the case when they ran their limousine business. If he is to employ someone else, he would have to pay wages to that person. This is likely to occur as when Mr Pastuch is driving, he finds that his right arm gets quite ‘dead’ when it is on the steering wheel for a significant period of time. He cannot do full swings with his right arm to turn around corners and he must use his left arm to turn corners. His shoulder hurts when he has to turn quickly. This gives him a sharp pain and leaves him in agony for the next day.[79]

    [79] T111.

16. Eventually, Mr Pastuch and his wife made a decision that they would have to sell the Burton property. They also sold the jet ski and the big fishing boat before buying a smaller fishing boat.[80] Before the accident Mr Pastuch could do jobs around the house. This included painting and clearing gutters. He cannot now do those activities because of his right arm injury. He cannot climb a ladder to do gutters. He cannot do anything for which he needs right arm strength. He has brought a lightweight whipper snipper that he can use with his left arm. He is always cautious when using his right arm because he can experience sharp pains from the simplest of activities such as washing his hands by rubbing them together.[81] Therefore, six years after the accident, Mr Pastuch is still avoiding tasks that require the use of his right arm.[82]

    [80] T95.

    [81] T111-112.

    [82] T113.

17. In daily life, he has relied more and more upon his wife especially in the last few years. He knows that he would not be where he is now without her, even though they have not had any form of relationship since the accident. They did have a active sexual relationship before the accident but since, Mr Pastuch’s temper, his lack of motivation, his anger, his thoughts about his life, his depression and his general despair bring the whole family down. They have no ongoing sexual relationship. In their house, his daughter occupies one room, his wife another and he another. They barely talk since the accident. This is very different for Mr Pastuch as before as he was ‘happy go lucky’. It is no longer a happy household.[83]

    [83] T97.

18. Before the accident Mr Pastuch’s plan was that as his daughter got older, he would increase the amount of interstate driving work that he would perform.[84] I accept this evidence. The plan was to increase his workload to do ‘…one and a halves to Perth’.[85] The plan meant he would be away from home for five and a half to six days per week and have only one day off work. This would increase his earnings.[86]

    [84] T99.

    [85] T99.7.

    [86] T99.9.

19. This was necessary for a number of reasons. The limousine business was not sufficiently profitable and was sold to fund in part the purchase of the Freeling land. It was necessary to build a house on this land, and then improve the surrounds by landscaping. Ms Samantha Lewis was no longer employed and had taken up her interest in animal rescue at their cost. Their daughter was nearing the age of puberty and as parents they needed to satisfy the extra cost pressures that this entails. I am satisfied that it became necessary for Mr Pastuch to take on extra driving duties; that was his intention. I find that on balance, but for the collision, this is the way he would have worked until retirement.

20. I received into evidence exhibits A3 and A4. These are two affidavits of Personal Injury Particulars of Mr Pastuch dated 4 June 2021.[87]  and 25 November 2022.[88] Exhibit A5 shows the plans for the house and a number of other matters. I also asked Mr Pastuch to show to me the scarring on his nose and on his arm. There is slight scarring on Mr Pastuch’s nose however there is an elevated and quite unsightly scar on his right arm. I accept that he does not swim without a shirt, and he thinks that his scarring looks disgusting. I accept the evidence of Dr Bastian that the scar measured 19 cm from top to bottom and was about 2 cm in width. It is also lumpy and elevated.[89]

    [87] Exhibit A3, Affidavit of Personal Injuries Particulars dated 04 June 2021 (FDN 12).

    [88] Exhibit A4, Affidavit marked Second Affidavit of Personal Injuries Particulars dated 25 November 2022.

    [89] T113-115.

21. In cross examination, Mr Pastuch confirmed that from 2009 until the date of the accident, he was working fulltime except for when they had the limousine business. However, he could not give up truck driving because he loved the work. The limousine business was purchased to enable Samantha Lewis to stop working at an insurance company, so that she could look after their child while she was doing office work. He cleaned, maintained and drove the limousines.

22. He undertook that work in and about his other truck driving work. For example, with the Old Number 7 Company, he worked Monday to Wednesday then worked in the limousine business on the other four days of the week. He cut back on his highway driving at the time because he wanted to spend time with his family. He was aware that he did not ever see his son grow up. He could not give up the three days of driving per week because the family desperately needed the money. Also, he did not like local driving. He had tried it, but did not enjoy it.[90] The work at HPS Transport was between 3 ½ days and 5 days per week. Whilst at HPS Transport, the limousine business was sold, and the money used to purchase the Freeling property. He had earlier tried to do tow truck driving work and did not like it much because it was so localised. He was a very good road train driver.

    [90] T116-118.

23. Now in the tow truck work, and whilst living in the heart of the Barossa Valley, he does no more than about 2.5 hours driving whether to Renmark or to Port Augusta or to some other place. He does not do local metropolitan work because the competition is so fierce. He also could not do the work at the charged rates. He is also doing less work so that he could enjoy the work and pay the bills.[91]

    [91] T121-123.

24. He has done the occasional long trip in this truck. He did a trip to Hay in central west New South Wales, in the company of another driver. He drove to Mildura on his own once, and hated it. He had a number of panic attacks on that busy highway.

25. He knows now that he could not operate an excavator, a loader or a forklift because he cannot use his right arm for those tasks.[92] He also could not work fulltime in the trucking industry doing local deliveries because of the demands upon his right arm.

    [92] T225-226.

26. Although his back is nowhere near as bad as his shoulders, it is worse now than it was before the accident.[93] He has limited movements in his shoulders, and he cannot put his right arm above his shoulders or behind his back.[94] He certainly denies the shoulder injury is better than he is saying it is.[95] I accept this evidence.

    [93] T123.

    [94] T124-125.

    [95] T226.

27. When he did light work at the HPS yard, he did drive some trucks. He did this every once in a while when he would be asked to go down to the Western Star premises to drop off a truck and then come back in a utility vehicle.[96] After he had his second shoulder operation on 16 May 2018, he came back to work on a part time basis and at that time, he was told by HPS Transport that his part time career was over and they wanted him to start driving trucks locally. At the time, he was not washing trucks for them because they had an automatic washing machine.[97]

    [96] T129-131.

    [97] T131-133.

28. Mr Pastuch is aware that the physiotherapist Mr McFarlane did a workplace assessment report on the 15 February 2018. He saw Mr McFarlane on a few occasions. He saw him before his second shoulder surgery. However despite what Mr McFarlane says Mr Pastuch’s evidence is that he has never done local delivery work for HPS Transport, and it was only towards the end that he started driving trucks to customers. He did not ever drive a truck to Port Augusta or to do a dog run.[98] His local driving work involved about 50% of his time. This was in semi-trailers and about 50 % of his time in rigid trucks. He found rigid trucks easier to drive. He also wanted to drive on double laned roads as much as possible.

    [98] T142.

29. In relation to the report of Mr McFarlane of 15 February 2018, 21 June 2018 and 6 January 2023.[99] He agrees that he was operating forklifts for the spare parts, and he was assisting in the workshop doing stocktakes and orders.

    [99] A6 tabs 28, 29 and 30 and especially at page 203.

30. He also did deliveries and pickups for parts using utility vehicles and provided general assistance around the workshop.[100] He was climbing in and out of trucks and he was not hitching trailers. He could lower the stand in a trailer by using his left hand, but his main work or job was to drive the work ute to go out to pick up parts and work in the yard.[101]

    [100] T134-135.

    [101] T135-136.

31. From November 2018 he started doing more local driving work and did not take any time off for his physical problems. He found that exhausting. He has not been working fulltime since being terminated but he now recovers better from the work that he is doing. Earlier, he did the work and spent the whole weekend trying to recover. He was compensating by using one side of his body and not the other and so he was bound to get sore.[102] On occasions, he has thought about changing careers and moving to forklifts fulltime, but he has not done so because he could not do that work fulltime.[103]

    [102] T145-147.

    [103] T148-149.

32. In cross examination Mr Pastuch said, and I accept, that he brought the tow truck prior to losing his job with HPS. He lost that employment following an altercation in relation to a Lenswood load as he had refused to load a truck, he had refused to answer the phone and he used an offensive word to describe the operations manager in front of other employees. He admitted that he was stressed from not being able to do his job properly and ‘flipped out’.[104] He said that he did not buy the tow truck to start a business. He often buys vehicles, repairs them and on sells them for profit to support his family. Eventually, he thought that the tow truck might be a way of making some money and it was cheap. He bought it before he decided to become a tow truck driver. There was an evolution in his thinking process.[105] He did not tell Dr Economos about the tow truck business because he was not doing it part- time at that time, but can’t explain why he did not tell him he was doing it fulltime. He was about four months into the business by then. He was currently looking for a new driver to relieve him and he has not had someone to relieve him in the past. He passes work onto another driver, but that driver uses his own truck. His work with the truck is reasonably light. It is usually only tying down a load at a breakdown.

    [104] T157-159.

    [105] T149-151.

1. I therefore accept the assessment made by Ms Bossert under scenario 2 of her report, exhibit A10 page 2.  I make the following findings in relation to Mr Pastuch:-

   1.His past economic loss amounts to $395,423.00

   2.His past loss of superannuation amounts to $43,394.00

   3.Fox v Wood allowance $28,594.00

   4.Total $467,411.00

2. It is necessary for me to reduce that assessment by the anticipated earnings for the tow truck business to the 30 June 2023. In light of the evidence before me, I would allow $25,000 for those anticipated earnings. This is because Mr Pastuch gave evidence that he was in the process of bringing on a driver to take the work that he could not take. I think that some further assessment needs to be made of profitability which, in my opinion, is properly assessed at $25,000. That is using a broad axe approach which I must in these circumstances. This takes account of the early payment and accounting for the embedded costs which have been paid and which would not again be included as capital costs. Earlier in these reasons, I explain that if those ‘Sunk’ capital costs were ignored, the profit of the business would have been in the order of $8,000 per annum for a business then in its infancy. That leaves a total of $442,411.00. That amount must be reduced under s.56A(5) of the Civil Liability Act ($442,411 x .2 = $88,482.20).  After deduction this leaves a balance of $353,928.80. To this sum must be added the agreed amount of past medical expenses and special damages of $29,030.45.

3. I assess these past losses of Mr Pastuch in the amount of $382,959.25.

4. I turn to the question of future economic loss.

   Future Economic Loss

5. The contention of the applicant is that there was no reason to doubt the assertions of Mr Pastuch about his intention to go on working in the future. In my view, there is a distinction to be made between the subjective assertion of Mr Pastuch about his intention, which I generally accept and the objective facts about his health and capacity. In his evidence, Mr Pastuch said that prior to the accident he reached the point where he was very overweight, and he underwent lap band surgery. His weight had ballooned to around 130-150 kgs. He is not a tall man. At the time he gave evidence, he was overweight but not seriously so. In my view, some provision would need to be made on a contingency basis for difficulties that I consider Mr Pastuch would always have encountered in fulfilling any job in the future bearing in mind his difficulties with the control of his personal weight. These difficulties appear to have a fairly broad effect. That is a matter that I have taken into account in reaching my assessment.

6. The physiotherapist, Mr Olivio Varricchio, in his report of 10 October 2022 made an assessment of the activities of daily living for Mr Pastuch. The report has been received by consent and is in evidence.[242] At page 81 and following, Mr Varricchio sets out his summary and conclusions. He identified the purpose of the report, the effect of the injuries reported to him by Mr Pastuch, the content of the medico legal reports prepared by Dr Bastian, the ISV medical assessment made by Dr Bastian and his diagnosis. Mr Varricchio then states that Mr Pastuch continues to report ongoing intermittent right shoulder pain with pain referral into the right upper arm and right side of lower back pain. He exhibits gross limitations in his active right shoulder and lumbar spine movement which Mr Varricchio opined was consistent with the medical reports that were provided.

   [242] Exhibit A6, tab 12 page 67 et seq.

7. Mr Varricchio then addressed the history of the lower back pain, the lower back strain suffered by Mr Pastuch some ten years earlier which settled with no ongoing symptoms or dysfunction. His current position of ongoing back pain is to be contrasted with the position prior to the accident. Mr Pastuch was in good health, he had no shoulder or chronic lower back pain, injury or dysfunction and lived an active and independent life. The symptoms reported by Mr Pastuch are set out on page 82 of the report of Mr Varricchio as follows: -

   Mr Pastuch reported that his symptoms continue to be aggravated form activities involving any heavy, repetitive and/or prolonged:

   ·Sitting (for longer than 30 minutes);

   ·Standing (for longer than 10 minutes);

   ·Walking (for longer than 30 minutes);

   ·Bending/Stooping;

   ·Squatting/Kneeling;

   ·Twisting;

   ·Climbing stairs and ladders;

   ·Reaching above shoulder height or at low levels, particularly with the right arm;

   ·Driving (for longer than 1-2 hours);

   ·Lifting and/or carrying(greater than 5kg in the right hand and 10 kg in both hands);

   ·Pushing and/or pulling.

8. Following this expression of the functional limitations of Mr Pastuch, Mr Varricchio at page 82 also said as follows:-

   Therefore, this has resulted in the following functional limitations:

   ·Difficulty with aspects of personal care;

   ·Inability to attend to the larger, heavier and higher/lower domestic cleaning tasks

   ·Difficulty with larger, heavier and higher/lower laundry tasks;

   ·Difficulty with the larger and heavier grocery shopping tasks;

   ·Inability to attend to the larger, heavier and higher/lower gardening and general home and property maintenance tasks;

   ·Difficult with regularly washing and cleaning his car by hand.

9. At page 83, Mr Varricchio sets out the tasks upon which Mr Pastuch places reliance upon his wife for completion. They are as follows:-

   Mr Pastuch has relied on his wife and paid services to attend to the tasks that he can no longer perform because of the functional limitations caused by his right shoulder and lumbar spine injuries and because of aggravation his pains and the associated symptoms. These tasks include:

   ·The heavier, larger higher/lower domestic cleaning tasks;

   ·The heavier, larger and higher/lower laundry tasks;

   ·Aspects of the heavier, larger and higher/lower gardening and general home and property maintenance tasks;

   ·The car washing and cleaning.

10. At page 83 and following, Mr Varricchio sets out his recommendations. They are as follows: -

11. In his submissions, Mr Pastuch said that any allowance that I should make to reflect earning capacity from the tow truck business should only be minor because the business has only recently commenced, he was not really personally committed to undertaking the work through lack of desire, and it is not a fulltime business.

12. In my assessment of past economic loss, I have made a larger provision in relation to this business than as contended for by the applicant. I do not adopt the same approach in making my assessment for future economic loss for the following reasons. The evidence satisfies me that Mr Pastuch made a genuine attempt to involve himself in the tow truck business. I am of the view that he was then full of good intentions, but the practical application of those good intentions created problems that he found insurmountable. The very task of driving a truck upon a road created problems and issues for him that he just could not overcome. The panic he felt about a truck travelling in the opposite direction did not abate. He became a danger to himself at least. This is all part and parcel of his psychiatric condition. Over time he found that he could not operate as efficiently as he intended. He lost interest in the task, not because he did not want to work and provide for his family but because with his condition he could not do so. I am satisfied that as time has progressed, Mr Pastuch has become incapable of fully commercialising his business. For the reasons earlier explained, the employment of a substitute driver does not provide a solution because of all the usual costs involved. The tow truck business is suited to his present position because as Dr Begg opined, it is something he can do on his own time and on his own terms.

13. It has been proved to my satisfaction on the balance of probabilities, and I think there is no doubt, that Mr Pastuch suffers from a post-traumatic stress reaction to the extraordinary violent collision in which he was injured. There was no challenge to the evidence of Mr Pastuch that when driving on a road, he is constantly confronted by a stress reaction when another truck is travelling in the opposite direction. This is worsened when the other truck might veer slightly to his side of the road. He often needs to pull to the side of the road and regain his composure. These reactions inform his desire not to go on doing truck driving and his consideration of employing another person to perform this work. I therefore accept the submissions of the applicant that he vulnerable to a severe stress reaction if any such incident were to happen on the road.

14. The applicant submits that a provision should be made for the probability of the deterioration of the applicant’s left shoulder. This opinion was expressed by Dr Bastian on the basis that in light of the history, there was a probability of the deterioration of that shoulder. The foundation of this view was that because Mr Pastuch continually favoured his right arm, he would use his left arm and shoulder more than would usually be the case, almost to the exclusion of his right arm. Dr Bastian thought that if Mr Pastuch favoured his right by continually using his left arm, then it may be expected that there will be adverse arm changes to his left arm and shoulder joint compared to the position of both arms being used. This was the expression of an expectation borne out of experience and observation. This was not a view formed following his review of diagnostic tests such as x- ray, MRI scans or the like of the left shoulder joint of Mr Pastuch. The applicant also contends that in light of the fact that, the applicant has been using his left shoulder more than would otherwise be the case, there is an increased likelihood of deterioration of that shoulder. Dr Economos did not accept either proposition.

15. I accept the respondent’s contention that no provision should be made in relation to these aspects of the claims. Dr Economos expressed his view based upon the diagnostic tests and the materials that he had seen. He preferred to express a view based upon that material. Even though I consider that when regard is had to the ordinary common sense, the view expressed by Dr Bastian is probably correct, it is necessary for me to remove my own subjective judgment from considerations. Dr Economos could detect no signs of deterioration in the left shoulder joint based upon the objectively available evidence.

16. I am satisfied on the evidence that, when addressing the requirements of s.56A of the Civil Liability Act, the percentage likelihood that the business of the applicant will remain at a very low level (described by the applicant in his submissions as a hobby level) is more than 75 %. I am satisfied that this business will remain at the current level, and therefore such a level of activity will reflect its profitability.  It will not reach a commercial level of the exploitation of the resource. I am also satisfied that, as a result of the evidence that I have heard, Mr Pastuch has a vulnerability to a severe post-traumatic stress reaction as a result of any incident that he encounters on the road and, I am satisfied that there is at least a 75 % probability that he will encounter problems in the future as a result of those difficulties as well as those difficulties combined with the other difficulties that he suffers. That is, the consequences of his post-traumatic stress reaction, the consequences of his physical disabilities and the overall consequences of the combination of those matters will cause these problems for him.

17. I refer to my earlier findings and discussion about Mr Pastuch’s ability to earn any other form of income given that the effect of the injuries suffered by him and their sequelae.

18. I have accepted the opinion of Dr Bastian that Mr Pastuch is not employable on the open labour market. Dr Bastian opined that the optimum position for Mr Pastuch was to work in his own towing business according to his capacity from time to time. Dr Economos did not strongly disagree with this view.

19. The evidence of Ms Bosset is that currently, this business is barely profitable. The evidence of Mr Pastuch is that he no longer wishes to be a truck driver but he has no other skills.

20. I am satisfied on the evidence that Mr Pastuch has always been a truck driver apart from a limited amount of work he did as a carpenter in the early years after he left school. The evidence of Dr Begg is that people such as Mr Pastuch are proud of their capacity as truck drivers, that is their passion and their life’s work.  This has now been taken from Mr Pastuch. He is also in a position where he has no capacity for manual work and he does not have the intellectual capacity for more complex work, different from the roles he has always performed. He has no capacity to be retrained into a higher level position for such work.

21. Dr Bastian said and I accept that he is unemployable. Dr Economos did not strongly disagree with that view. These views inform my approach to the provision that should be made in reduction of my damages assessment for future losses. Mr Pastuch is unemployable, his business is at best marginal and he plans to burden that business further by seeking to employ another driver to do the work he would otherwise have done. Such a decision is problematic for the reasons I earlier explained and the future of the business is therefore fraught.

22. Taking all of these matters into account, I am satisfied that the appropriate deduction for future earnings of Mr Pastuch is $60,000. In making this calculation, I have taken account of his age, his skills, his experience, his physical capacity and his intellectual capacity. In the end, as Dr Bastian said, the horrors of these events and their sequelae have rendered him unemployable.

23. In exhibit A10, Ms Bossert has made a calculation of future loss. I accept her assessment of economic loss in the amount of $1,116,051 and for loss of superannuation of $160,691 giving a total loss of $1,276,742. I deduct a contingency of 25 % leaving a sum of $957,556.50. I have earlier explained why I have made a contingency deduction of greater than the usual amount of 15 %. This includes evidence regarding Mr Pastuch’s weight and other maladies and reasons that he would not maintain the requirements of long-distance truck driving until the age of retirement at 67. A further deduction to account for some future earnings in the amount of $60,000 should then be applied. This reduces damages to $897,556.50 that amount must be further reduced by 20 % for s 56A(5) of the Civil Liability Act ($179,511.30). Upon those calculations an amount of $718,045.20 is achieved. I will round this figure up to $720,000. I have accepted the approach of Ms Bossert that a retirement age of 67 years should be accepted. I am unable to accept the applicant’s contention that an older age, such as 70 should be used. I am mindful of the stressors associated with long distance truck driving and other aspects of the health of Mr Pastuch. I am unable to find on the balance of probabilities that Mr Pastuch would have proceeded to work past 67 years, the notional date for retirement.

24. The applicant seeks Spargo v Greatroex damages.[243] This is usually understood as the measure of damages for the inability of the applicant to contribute his own labour to domestic tasks such as building work around a home and so obviate the incurring of costs for that work. I have made provision for damages under this head and my assessment is made more difficult because of the increased cost of work by trades and because of the rural environment in which that work would need to be done. A higher than usual allowance therefore needs to be made. I have decided to allow the amount of $30,000 under this head of claim. The evidence satisfies me that Mr Pastuch did all of the work around the house, he was a genuine handyman and he very competently did all of this work. I am also satisfied from the photographic evidence that there is a very large amount of work to be done around the Freeling property which would otherwise have been done by Mr Pastuch and I accept that, formerly, he did not need to engage tradespeople to do this work.

    [243] Spargo v Greatroex [1992] SASC 3809.

25. Each party has addressed a calculation of Wilson v McLeay damages. [244] These damages are payable for the assistance provided by Ms Lewis, as the spouse of the applicant during the period that he was hospitalised. Each of the parties has assessed these damages at $1,000. I would make that allowance.

    [244] Wilson v McLeay [1961] 106 CLR 523.

26. The terms of s 58 of the Civil Liability Act provide that damages for gratuitous services are awarded only in respect of services provided by a parent, a spouse, a domestic partner or child of an injured person.

27. Earlier in these reasons, I have recounted the services that were provided by the second applicant Ms Lewis and the mother of the first applicant, Ms Van Geel. Section 58 of the CLA provides as follows: -

    58—Damages in respect of gratuitous services

    (1)     Damages are not to be awarded—

    (a)to allow for the recompense of gratuitous services except services of a parent, spouse, domestic partner or child of the injured person; or

    (b)to allow for the reimbursement of expenses, other than reasonable out-of-pocket expenses, voluntarily incurred, or to be voluntarily incurred, by a person rendering gratuitous services to the injured person.

    (2)     Damages awarded to allow for the recompense of gratuitous services of a parent, spouse, domestic partner or child are not to exceed an amount equivalent to 4 times State average weekly earnings.

    (3)     However, the court may make an award in excess of the limit prescribed by subsection (2) if satisfied that—

    (a)the gratuitous services are reasonably required by the injured person; and

    (b)it would be necessary, if the services were not provided gratuitously by a parent, spouse, domestic partner or child of the injured person to engage another person to provide the services for remuneration,

    but, in that event, the damages awarded are not to reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.

    (4)     Despite the preceding subsections, in a case involving an injured person who has suffered personal injury arising from an MVA motor accident—

    (a)     damages referred to in subsection (1) are not to be awarded unless—

    (i)the injury scale value that applies under the regulations in relation to the injury exceeds 10; and

    (ii)     the services are provided or to be provided—

    (A)    for at least 6 hours per week; and

    (B)     for a period of at least 6 consecutive months; and

    (b)any hourly rate used for the purposes of determining any damages awarded to allow for the recompense of gratuitous services of a parent, spouse, domestic partner or child is not to exceed a rate prescribed by the regulations for the purposes of this paragraph.

    (5)     Furthermore, in a case involving a person who is a participant in the Scheme under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013, subsection (1) operates subject to the qualification that damages are not to be awarded for the recompense of gratuitous services of a parent, spouse, domestic partner or child of the participant in respect of any assessed treatment, care and support needs, as defined or determined under that Act (whether being past or future needs), that relate to the motor vehicle injury (as defined by that Act) in respect of which the person is a participant in that Scheme.

    (6)     A reference in subsection (5) to a person who is a participant in the Scheme under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 will be taken to include a reference to a person who has been an interim participant in that Scheme (and who has received any treatment, care and support needs under that Act).

1. There were significant submissions about the meaning and effect of s 58(4)(a)(ii)(A)(B) of the CLA. In my opinion, there are a number of approaches to the interpretation of these sub paragraphs. I will focus on only two approaches to interpretation which were the subject of submissions. Section 58(1) of the CLA is the enabling provision which authorises damages to be paid for gratuitous services provided by a limited range of people and for a limited purpose. S 58(2) CLA prescribes the limit of the damages and s 58(3) is an exclusion provision of that limitation. This exclusion will apply if the gratuitous services are reasonably required by the injured person and otherwise it would have been necessary for another person to have been retained to provide those series for remuneration.

2. Section 58(4) of the CLA is a further limitation upon an applicant claiming for gratuitous services. Under s 58(4)(a)(ii)(A) and (B) of the CLA the services in respect of which a claim is made must be provided for at least six hours per week and for a period of at least six consecutive months. The rate is that prescribed by regulations.

3. On one of view, the services to be provided by those entitling persons named under s 58(1) of the CLA must be provided for at least six hours per week and for a period of at least six consecutive months. In the absence of proof of those matters, on the first argument, the claim would fail. On the first argument, it is necessary to prove that the services are provided by persons for whom a claim may be made (viz s 58 of the CLA and the definition of the ‘entitling persons’) and those services must be provided by them for six hours per week for six months at least. On this argument similar services provided by other ‘not entitling’ persons are not to be taken into account in the calculation of the six hours per week for the six-month period.

4. The second argument is that the expression ‘the services’ as used in s 58(4)(a)(ii) of the CLA are a reference to all services of a gratuitous nature supplied for the benefit of an applicant following an injury. As long as a person or person supplied those services for at least six hours per week and, for at least six consecutive months, it is still possible to claim for any services provided by those persons defined under s 58(1)(a) of the CLA. (my emphasis)

5. I consider the second argument is correct. It is consistent with the approach taken by other intermediate Courts of Appeal in other Australian States but a limit of relevance of those decisions is the different legislation applicable.

6. The reasoning which underpins this view is largely self-evident. Currently under s 58(4)(a)(ii) of the CLA, the term ‘…the services’ simpliciter is used and it appears that the reference is not directed at only those services provided by the persons prescribed in s 58(1) of the CLA. The entitlement to claim arises only in respect of the services provided by those persons. The prerequisite to the claim an assessment of damages is that the service must be performed for at least six hours per week for six months. The limitation of those in respect of whom (the entitling persons) services may be claimed also implicitly carries the inference that there will be others providing such services but in respect of which, no claim may be made.

7. In turn this means that where there are ‘entitling’ and ‘non entitling’ persons providing services for at least 6 hours per week and for a period of at least 6 months the requirements of s 58(4)(ii) of the CLA are satisfied, but under the operation of s 58(4) (ii) of the CLA a claim may be made only for services provided by those who are referred to in s 58 (1)(a) of the CLA at the rate prescribed under s 58(4)(b) of the CLA.

8. The rate for gratuitous services assistance payable has been agreed between the parties at $25 per hour and for commercial services $51 per hour. There is no dispute that the limitations under s 58 CLA are applicable only to care provided gratuitously and not to paid commercial care. I accept the submissions of the respondent, that based upon the report of Mr Varricchio of 24 February 2020 and 10 October 2022 and the report of Mr Ross Tippett of 26 June 2020, that from no later than 24 February 2020, the applicant has not required more than about 2.25 hours of domestic services/care per week. I am satisfied on the evidence that care has been provided gratuitously to the applicant in the past, but no claim has been advanced for past paid care.

9. I will first address the threshold requirement of s 58 (1) of the Civil Liability Act. As a result of the injuries suffered by him, the applicant relied upon his wife, the second applicant for almost all of his personal care and domestic tasks. In my view, this position is clearly established on the evidence earlier discussed by me. The respondent contended that even though this was the position, the applicant was not bed bound and did not need the provision of these services. I am unable to place any significance upon that contention because I am satisfied on the evidence that the second applicant provided for almost the whole of the applicant’s personal care and domestic tasks following his release from hospital. I am satisfied that he was physically incapable of caring for himself and that these services were necessary for his care.

10. I am also satisfied that in the period from ten months after he was released from hospital, the applicant undertook some of his own personal care activities, but he relied on his wife, for all domestic tasks. He required intensive personal care for a period of about six weeks after his surgery following the collision. He obtained independence with some of his personal care such as toileting by about December 2016.

11. As may be expected the personal care provided by Ms Lewis in the immediate period following the release from hospital of the applicant was intense. She described it as being at around two to three hours per day. I consider that an estimate of twenty hours per week is reasonable and in my view is conservative.

12. By about December 2016 and through until about September 2017, Ms Lewis continued to provide domestic services for the applicant at least at the rate of one to two hours per day. I think that a reasonable estimate is in the order of fourteen hours per week. After his return to work in September 2017, it reduced to about one hour per day or seven hours per week.

13. The respondent contends that there is no particular way in which it could be assessed whether this time spent was ‘reasonably required’. I am unable to accept that contention. The evidence supports the assessment that all of these services were reasonably required. Mr Pastuch was incapable of doing any heavy lifting; he could not remove wet clothes from a washing machine, he could not completely dry himself, he was limited in his ablutions, he could not resume daily tasks as he had done previously, such as cooking. He was in pain and quite debilitated.

14. I accept the respondent’s contention that, based upon the reports of Mr Varricchio and Mr Tippett, from about 20 February 2020, Mr Pastuch has not reasonably required more than about two to three hours of care each week. I also accept the contention of the applicant that since about 1 March 2019, there has been little, if any change in the applicant’s capacity and he did not reasonably require more care. As a result, the ongoing six-hour threshold has not been met. I accept that from between September 2017 to March 2019 the threshold has been met because I am satisfied that the applicant required at least seven hours care per week. I am also satisfied in the period between December 2016 to September 2017, the applicant required at least ten hours of care per week. This is a period of about 41 weeks. In the period between November 2016 and December 2016, which was the period of the most intense care requirement, the applicant required twenty eight hours or more of care per week. I also consider that some further allowance needs to be made having regard to the need for Mr Pastuch to undergo further surgery by Dr Ward in May 2018.

15. I am unable to accept the contentions of the respondent that in the period between November 2016 to December 2016, the applicant required only 18 hours of care per week. I am satisfied on the evidence that he required at least four hours per day from his discharge from hospital for a period of about twenty weeks. This is an amount of 20 weeks x 28 hours x $26.20 being an amount of $14,672.

16. I am satisfied that Mr Pastuch required ongoing care until his return to work in about September 2017. I consider that a proper allowance is 16 hours per week for 20 weeks at an increased rate of $26.71 being an amount of $8,547.20. Further domestic services were supplied to Mr Pastuch as a result of the further surgery by Dr Ward in May 2018. In my opinion, using a broad axe approach, a further $1,500 should be allowed and therefore I will allow the amount of $1,500 for the financial year ended 30^th June 2018.

17. I consider that for the financial year ended 30 June 2019, 2020, 2021, 2022 and 2023 that a reasonable allowance is one hour per week in light of the fact that I am satisfied that Mr Pastuch and his wife have remained married and although there is ‘marital disharmony’ they are together, and I accept the evidence of Ms Lewis that she is determined to try and work things out between them. The rates for those years were $27.33, $27.69, $28.35, $28.70 and $30.04. I will hear the parties further on that matter.

18. In relation to commercial care which is a agreed at the rate of $51 per hour, the respondent contends that no allowance should be made merely as a substitute for gratuitous care in order to circumvent the limitations within s 58 of the CLA. The respondent further contends that if commercial domestic care was unlikely to be retained in the future, then no compensation should be allowed for it. The circumstances of the case must be taken into account. I have taken into account some of those circumstances in my earlier discussions. I have accepted that the marriage of Mr Pastuch and Ms Lewis is continuing albeit that there is disharmony. This assessment must be made in the background of my satisfaction that such services would at some point be available in place of gratuitous care. In Van Gervan v Fenton,[245] the High Court held that merely because services of the type needed had previously been supplied to the plaintiff by members of his family is irrelevant and marital or family obligation do not affect the level of damages to be assessed. In Mr Varricchio’s second report of 10 October 2022, he makes an assessment of services required on a weekly basis amounted to 2.3 hours per week. This calculates to a sum of $117.30 per week. The whole of life multiplier as identified by Ms Bossert is in the amount of $871.66. The applicant contends that, based upon this actual figure, a base figure of $102,288 is the starting point for the assessment for future care/activities of daily living.  There is also a necessity to build in an assessment for contingencies such that, with time, a physical condition is naturally likely to worsen and require a higher level of care. For example, Mr Varricchio in his second report makes a provision for car washing in the amount of $637 per year which equates to $12.25 per week and using the multiplier at $872, a loss of $10,680 is allowed.

    [245] [1992] HCA 54; (1992) 175 CLR 327.

19. In my opinion, some provision must be made for future care based upon the very likely deterioration in the physical position of Mr Pastuch as a result of the accident. I am unable to accept the submission of the respondent that no allowance should be made. However, equally I am unable to accept the contentions of the applicant in relation to the sum claimed.

20. In the end, I have arrived at a broad axe approach of allowing $85,000 including for all of those matters identified by the experts in their reports. I would reduce that amount by 25 % on a contingency basis to the sum of $63,750.

21. In relation to future medical expenses, I would use the same broad axe approach. I think an allowance should be made for visits by Mr Pastuch to his general practitioner and for physiotherapy visits and for psychological assessments according to the evidence of Dr Begg. It is known that Ms Cassie Peters charges an amount of $180 per session. Using the same broad axe approach, I would allow future medical expenses in the sum of $25,000. I would not reduce that figure for a contingency amount as I am satisfied on the evidence that Mr Pastuch’s medical condition will progressively deteriorate in an accelerated way over time. The need for these services will therefore become more acute not less.

22. The calculation of interest is complicated by the payment of workers compensation. Interest should be allowed only at the rate of 5% from the second year after the injury. I will hear the parties further upon the calculation of that amount.

23. I turn to the claim of the second applicant. She makes a claim for loss of consortium. I accept that prior to the accident, the two applicants had a happy, intimate and prosperous lifestyle. They enjoyed outdoor activities, they socialised as a family, they were able to overcome significant issues arising out of the death of the applicant’s brothers, they were planning for the future, and they had committed themselves to a plan in relation to the future. They were sharing their lives with all of the ups and downs that such a decision brings. They were together in the fullest sense of that word; they were in a loving relationship of mutuality including in relation to their physical relationship.

24. The contrast to the present position could not be more stark. They occupy a large house; they occupy separate parts of the large house, and the relationship is strained. In making my assessment, I have had regard to the relevant authorities, as summarised in the decision of Judge Clayton in Elliot and Anor v Andrew.[246] I have taken all of those matters into account. I would allow $50,000 to the second applicant on her claim for loss of consortium. I will hear submissions in relation to the apportionment of that sum between past and future.

    [246] 2009 SADC 31.

    Summary of Damages

(1)     Mr Pastuch

Past losses

(i)        Non-economic loss

$17,850

(ii) Past economic loss including for past loss of superannuation benefits ($43,374) and after an allowance of $25,000 for past earnings less a reduction of 20 % pursuant to s 56A(5) of the CLA

$353,928.80

(iii)      Past medical expenses and special damages (as agreed between the parties)

$29,030.45

Total amount for past losses and non-economic loss

$400,809.25

Future losses

(iv) Future economic loss including for future superannuation losses, after a reduction for future earnings ($60,000), a reduction of 25 % for contingencies and after a reduction of 20 % under s. 56A(5) of the CLA

$718,045.20

(v)        Wilson v McLeay damages

$1,000

(vi)       Gratuitous services (past and future)

$16,172

(vii)      Future care after a reduction of 25 % for contingencies

$63,750

(viii)     Future medical expenses

$25,000

(ix)       Spargo v Greatorex damages

$30,000

Total amount for future losses

$853,967.20

Total amount of past and future losses and non-economic loss

$1,254,776.45

Total past and future losses after 25% reduction under s 49 (3) of the CLA

 $941,082.00

(2)     Ms Lewis

(i)        Loss of consortium

(a) After a reduction by 25% under S 49(3) of the CLA

$37,500

Total assessment of Applicant’s damages

$978,582.34

 Interest

Parties to be heard