Peter Andrew Owbridge v Arthur John Murphy
[2001] QSC 321
•4 September 2001
SUPREME COURT OF QUEENSLAND
CITATION: Peter Andrew Owbridge v Arthur John Murphy & Anor [2001] QSC 321 PARTIES: PETER ANDREW OWBRIDGE
(plaintiff)
v
ARTHUR JOHN MURPHY
(first defendant)
and
VACC INSURANCE COMPANY LIMITED
ACN 004 167 953
(second defendant)FILE NO/S: S 9259 of 2000 DIVISION: Trial Division PROCEEDING: Civil Proceedings ORIGINATING COURT: Brisbane
DELIVERED ON: 4 September 2001 DELIVERED AT: Brisbane HEARING DATE: 26, 27 July 2001 JUDGE: Holmes J ORDER: 1. Judgment awarded for the plaintiff against the defendants in the sum of $205,358.40.
2. Parties to make submissions as to costs.
CATCHWORDS: NEGLIGENCE – PERSONAL INJURIES – MOTOR VEHICLE
NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY – DAMAGES
Collision between motor vehicle turning into path of motorcycle – whether defendant failed to keep proper lookout – whether plaintiff’s speed excessive – whether plaintiff failed to react sufficiently quickly to turning vehicle ahead of him – whether plaintiff contributed to collision.Duffus v Collins [1966] 1 NSWR 464
R v Horvath [1972] VR 533COUNSEL: Mr Grant-Taylor SC with him Mr J MacDougall for the plaintiff
Mr Clifford QC for the defendantsSOLICITORS: Murphy Schmidt for the plaintiff
Gadens for the defendants
The plaintiff in this action was seriously injured on 29 October 1997, when the motor cycle he was riding collided with the station wagon driven by the first defendant. The accident occurred on Buccan Road, Buccan. At the time of the accident the plaintiff was riding north. The first defendant’s vehicle, which had been proceeding in a southerly direction, was executing a right-hand turn into the driveway of the first defendant’s home. The second defendant to the action is the insurer of the first defendant’s vehicle.
Buccan Road is in a semi-rural part of the Waterford/Beenleigh District. The road runs north/south between Dairy Creek Road and Hein Road, traversing, according to the plaintiff, two hills. The speed limit along it is 80 kilometres per hour. The residences along it are generally on acreage and are not visible from the road. There are gaps in the centre line markings to accommodate drivers wishing to turn into driveways. One of those driveways belongs to Mr Murphy, the first defendant, who lives at 57-63 Buccan Road, towards the junction with Dairy Creek Road. His driveway is about 150 metres south of the crest of the more northerly of the two hills referred to by the plaintiff.
The evidence which the plaintiff and first defendant were able to give as to the collision was limited. Mr Owbridge had sustained serious head injuries in the impact. His recollection of the events of the day ended some hours before the accident. The first defendant, Mr Murphy, did not see the plaintiff approaching prior to the collision. He had left the golf course where he was playing that day at about 2 o’clock to drive to his home, approximately a 15 minute journey. He had turned into Buccan Road from Dairy Creek Road. He had approached his driveway at a speed of about 60 kilometres per hour, signalling his intended right-hand turn about 100 metres before his driveway. He looked ahead along the road before commencing his turn and saw nothing approaching. At the time of commencing the turn he was travelling at between five and ten kilometres per hour. He became aware of the impact as the nose of his vehicle was in the driveway, when there was a sound like an explosion and the vehicle was spun round. The motor cycle had, it transpired, struck his vehicle at the front of the left side rear wheel arch.
Mr Murphy’s vehicle had been followed for some distance by one driven by Mrs Susan Howie. She turned into Buccan Road about two car lengths behind his vehicle. She said that Mr Murphy’s vehicle was then travelling at about 70 kilometres per hour, but he had slowed down and indicated to turn about 50 metres before driving into a driveway. At the time Mr Murphy’s vehicle began its right-hand turn, there were no vehicles visible coming in the opposite direction. It was only when his vehicle was partly in his driveway that she saw the motor cycle. She estimated that it was travelling at a speed of about 160 kilometres per hour; but in cross-examination she conceded that in an earlier statement she had given an estimate of 100 kilometres per hour as the motor cycle came over the hill, and further conceded that she really had no idea how fast the bike was going. She accepted too, that her attention had been focussed on Mr Murphy’s vehicle, which had slowed considerably before making its turn.
I allowed, over objection, evidence from two witnesses who had seen a motor cycle and rider resembling the plaintiff and his vehicle shortly prior to the accident. (It is of course a question of degree as to how far from the collision evidence of the speed of a vehicle can be said to retain its relevance.[1] Mrs Gillian Pearce was travelling along Stegmann Road, which leads into Hein Road, when she was overtaken by a motor cycle. The rider was leaning down over the tank of the bike. She estimated its speed at about 120 kilometres. She proceeded along Buccan Road, where she saw at the scene of an accident a motor cycle with the same colours as that which had passed her, and a rider wearing a similar jacket. The distance between the point at which she had been overtaken and the scene of the accident was about a three minute drive, at 80 kilometres per hour.
[1]Duffus v Collins [1966] 1 NSWR 464; R v Horvath [1972] VR 533
Ms Judith Askew was visiting her mother at 121 Buccan Road when she saw a motor cycle pass at a speed she estimated at 140 or 150 kilometres per hour. Within 30 seconds or so she heard a thud which suggested a collision. She drove north along Buccan Road and came to the scene of an accident. She saw a motor cycle and rider of similar appearance to the one she had seen earlier. However, on being shown photographs of the motor cycle by the defendants’ counsel, she failed to recognise it as the one she had seen.
Two expert engineering witnesses were called, Mr King for the plaintiff and Mr Chaseling for the defendants. There was no challenge to their expertise, or to either giving his opinion as to the likely dynamics of the vehicles culminating in the accident. Each relied on information contained in a police report of the accident, which was not before the court but was not the subject of any objection; I take the details thus relied on to have been admitted. That information included the fact that there was a 37 metre tyre mark on the road which was, the experts considered, consistent with the back wheel of the motor cycle having locked. That view was supported by a patch of wear on the rear tyre being visible in police photographs of the motor cycle.
Mr Chaseling had undertaken some measurements at the scene of the accident. He established that a motor cycle rider sitting upright (with an eye height at 1350 millimetres) would be in a position to observe the top half of a vehicle such as Mr Murphy’s for a distance of 147 metres from the southern end of Mr Murphy’s driveway. If the rider were leaning forward (and thus had an eye height of 1150 millimetres) he would be able to see the vehicle at 140 metres. He accepted that the driver of the vehicle would have a similar range of vision, so that the helmet of the motor cycle rider would be visible from 140 metres away, and within 135 metres it could be expected that the driver of the car would see the whole motor cycle. It should be noted at this point that the plaintiff’s evidence was to the effect that the head light of his motor cycle came on automatically when the ignition was turned on; and the conditions on the day of the accident were fine.
Both experts had embarked on computer modelling based on the damage patterns and final position of the vehicles to establish the likely speed of impact. Mr King concluded that the plaintiff’s speed was most likely around 90 kilometres per hour while the first defendant’s vehicle was probably travelling at about 16 kilometres per hour. Mr Chaseling considered that these speeds should be given as a range, in the case of the motor cycle between 80 and 100 kilometres per hour. However, Mr King said that he had trialed his modelling at differing speeds, and a combination of 90 kilometres per hour on the part of the motor cycle and 16 kilometres for the car best reflected the rest positions of the vehicles. I accept, on the balance of probabilities, that the impact speeds of the motor cycle and vehicle were as Mr King proposed.
Both experts had then set about reconstructing prior speeds and travelling times from the impact speeds and the evidence of the tyre mark. Working on a deceleration rate of 0.7, Mr King had concluded that the motor cycle’s speed at the time braking was commenced (ie at the beginning of the tyre mark) was 121 kilometres per hour. From there to the point of impact would involve a period of 1.26 seconds. Mr Chaseling considered that higher deceleration values should be considered. At .09g, the speed of the motor cycle would have been 129 kilometres per hour, and the braking time 1.22 seconds.
Mr Chaseling pointed out that the distance from the point at which the first defendant’s vehicle would have been visible to the plaintiff to the beginning of the skid line was at least 100 metres. (To be precise, it would have been 103 metres if he were leaning over the bike, and 110 metres if he were sitting up). The maximum reaction time to be expected was 2 seconds. For that to have been insufficient to stop short of the first defendant’s vehicle, the plaintiff must have been travelling at 180 kilometres per hour. If his speed were not as high as that, he had ample opportunity to brake earlier and avoid the accident.
The more probable conclusion, in my view, is that the plaintiff was not travelling at a speed as high as that posited by Mr Chaseling. It seems more likely that he saw the vehicle but did not brake immediately, either because he failed to see the indicator, or, if he saw it, thought that the vehicle would turn sufficiently quickly for it to be unnecessary for him to alter his course. It is possible that he thought at that stage he could go round it while it was turning, not appreciating that it was followed by Mrs Howie’s vehicle.
I accept, on the balance of probabilities, that at the time he commenced to brake the plaintiff was travelling at something of the order of the 121 kilometres per hour estimated by Mr King. In reaching that conclusion I have disregarded the evidence of Mrs Pearce which, on reflection, is too remote from the point of the accident to have any weight. However, I consider the evidence of Ms Askew to be of some limited assistance. Although she failed to recognise the motor cycle in the photographs shown to her at trial, I consider it nevertheless a reasonable inference that the motor cycle she saw passing her mother’s yard was the same she saw after having heard the noise of a collision and driven in the direction of the sound. I would treat her estimate of the motor cycle’s travelling at 140 to 150 kilometres per hour with considerable reserve because of the difficulty of estimating speed. However I am prepared to conclude from it that the plaintiff was likely to have been doing something substantially in excess of the speed limit, and that evidence lends weight to Mr King’s conclusion.
It was suggested by counsel for the plaintiff that the length of the tyre mark and the impact speed of the motor cycle might not be reflective of its earlier speed, if in fact the plaintiff had only applied the rear brake of the motor cycle, rather than both front and rear brakes. There was no evidence to support such a proposition. The plaintiff did not speak of any practice of not using the front brakes, and it was not suggested that he was so inexperienced as not to understand the limitations of relying only on the rear brakes. In any event, it seems most improbable to me that a motor cycle rider faced with an imminent collision would not apply all the braking power available to him.
Proceeding on the basis that the plaintiff did so at the point where the tyre marks start, I accept Mr Chaseling’s evidence that the motor cycle could have stopped in time if it was travelling at less than 81 kilometres per hour, that is to say, within the speed limit. That is another reason for concluding that the plaintiff was travelling substantially in excess of the speed limit, and for accepting Mr King’s evidence as to his likely speed.
Mr Chaseling calculated that if the plaintiff were travelling at 120 kilometres per hour, it would take him 3 seconds to cover the distance from the point at which Mr Murphy’s vehicle became visible to him (and his helmet became visible to Mr Murphy) to the commencement of the skid line. Thus, between the first point of visibility and the actual impact itself, a period of between 4.22 and 4.26 seconds elapsed.
Moving to the perspective of the first defendant as he approached the scene of the accident, Mr King estimated the distance to be covered by his vehicle from the point on the roadway at which he commenced his turn to the point of impact at about 9 metres. At an acceleration from 5 to 15 kilometres per hour, it would have taken between 2 and 3 seconds for Mr Murphy’s vehicle to clear the oncoming lane. According to Mr King almost 3 seconds were taken up with manoeuvring the vehicle, then at its lowest rate of acceleration, across the centre line. During that 3 seconds, on his calculation, the motor cycle should have been visible to Mr Murphy. In that position Mr Murphy should have had sufficient reaction time to stop his vehicle, which was travelling at a low speed.
The conclusion I come to is that the motor cycle was coming into view over the crest of the hill as Mr Murphy prepared to turn. It is not surprising that Mrs Howie, who was further back and had her view obscured by Mr Murphy’s vehicle, was not able to see the motor cycle at that stage. But Mr Murphy should, had he been keeping a proper lookout, have seen the motor cycle and aborted the turn. However, the collision was clearly contributed to in a substantial degree by the plaintiff’s excessive speed and his failure to react sufficiently quickly to the turning vehicle ahead of him. Had he been travelling within the speed limit he could have avoided the accident; had he kept a proper lookout and responded quickly he could have avoided it. In those circumstances I think it appropriate to make an apportionment. In my view, primary responsibility for the collision lies with the first defendant, who turned across the path of the oncoming motor cycle. The plaintiff, however, contributed very significantly by his speed and failure to react appropriately. I find that the plaintiff was 40 percent responsible and the first defendant 60 percent responsible for the occurrence of the accident.
Mr Owbridge was 19 years old when he was injured. A number of medical reports as to the injuries he sustained in the accident and their aftermath were tendered by consent. He was admitted after the accident to the Princess Alexandra Hospital. A report from a senior medical officer from that hospital indicates that he was assessed as having a severe head injury with a Glasgow Coma Scale reading of 5/10. A catheter was inserted for intracranial pressure monitoring. Scans showed diffuse cerebral injury; a large right pneumothorax; a large amount of intraperitoneal blood with extensive pelvic haematoma. There was a diastasis at the symphysis pubis. A laparotomy with resection of the small bowel was performed.
Mr Owbridge had sustained fractures of the right radius and ulna, which were reduced, and K wires applied to the right distal radius. He had also sustained a compound fracture of the left tibia and fibula. A nail was inserted to fix that fracture. He had a lacerated scrotum with haematoma and the right testis exposed. Those wounds were debrided and sutured. He had multiple lacerations to the neck which were given a compound scrub. He required intensive care treatment and a massive blood transfusion. On secondary investigation he was found to have an oblique fracture of the tibial plateau of the right knee which was splinted. Some 12 days after the accident, a second laparotomy was performed to divide adhesions and relieve a small bowel obstruction. He was also found to have a ruptured urethra which required a catheter.
On 24 November 1997, Mr Owbridge was moved from the intensive care unit to the infectious disease unit for management of a superficial MRSA infection. On 4 December 1997 the K wires were removed from his radial fracture. On 8 December 1997 he was transferred to the head injury unit and discharged from hospital on 16 January 1998. At that time he was suffering from a right foot drop, the result of nerve damage from a pressure sore where a cast had been applied to his leg. He was provided with an ankle orthosis to relieve it.
Mr Owbridge was examined for medico-legal purposes in late 1998 and mid-1999 by Doctors Gillett and Fraser, orthopaedic surgeons. X-rays showed that the wrist fracture had healed while the tibia and fibula fractures had healed with rod and screws in place. Dr Fraser considered x-rays of the right knee taken in October 1997 to be unremarkable, while Dr Gillett described a slight sloping of the lateral tibial plateau. Both, however, assessed a residual disability from the knee injury, in respect of which the plaintiff complained of continuing intermittent pain. Both allowed also for residual problems associated with the left leg fracture. Dr Gillett, in addition, assessed a ten percent impairment of the right leg function due to the nerve palsy associated with the foot drop.
Dr Gillett considered the x-rays to show a marked irregularity of the symphysis pubis with deformity in the inferior pubic ramus on the left and the superior pubic ramus on the lateral side. Both doctors made a percentage assessment of the pain and discomfort associated with the pelvic injury. Dr Fraser did not consider there was any permanent partial disability remaining from the right wrist fracture, but Dr Gillett assessed a ten percent right arm impairment resulting from it, with some remote risk of development of osteoarthritis. Dr Gillett on the whole assessed the combined effect of Mr Owbridge’s orthopaedic injuries at twenty-five percent impairment of bodily function; Dr Fraser at twelve percent. The two concurred in considering Mr Owbridge unable to follow a career in the navy. His recreational activities were likely to be limited. Dr Fraser thought him capable of lighter sedentary work.
Dr Lee Atkinson, a neuro-surgeon, also examined Mr Owbridge in 1999. He considered him to be at a five percent risk of future epilepsy as a result of his organic brain injury. He assessed a two percent permanent impairment of the whole person as a result of the brain injury, and a further two percent impairment as a result of the injury to the nerves of the right leg. Dr Atkinson considered Mr Owbridge’s employment opportunities to be restricted. He would not be able to do heavy labouring work.
Dr Andrew Jenkins, a plastic and reconstructive surgeon, in April 1999 reported on Mr Owbridge’s scarring arising out of the accident. He described a red hypertrophic scar on the left side of the neck over an area 110 millimetres x 100 millimetres; a pale scar on the chest 25 millimetres x 12 millimetres; a scar on the abdomen 28 centimetres long which was stretched and conspicuous; and a 12 centimetre long scar over the scrotum. There was also a scar over the right leg 4.5 x 2 centimetres associated with the nerve injury; and three scars, respectively 9.5 centimetres x .7 centimetres, 3 centimetres x .5 centimetres, and 7 centimetres x 0.8 centimetres, over the left leg. He expected the scars to improve to some minor degree in the following six months. In court, I examined the neck scar which was noticeable although not disfiguring, the scar on the right leg which was in the form of a small depression, and a set of puncture scars on Mr Owbridge’s right wrist where the K wires had been inserted. (These last were not referred to in Dr Jenkin’s report.) Dr Jenkins did not advocate surgical revision for any of the scarring.
Doctors Gray and Nothling, psychiatrists and Mr Brad Johnston, a psychologist also saw Mr Owbridge. Mr Johnston conducted testing to establish Mr Owbridge’s level of cognitive functioning. He assessed a full scale IQ of 107, which placed Mr Owbridge in the average to high average range of intellectual ability. Mr Johnston considered that consistent with his pre-morbid intellectual skills. Mr Owbridge’s memory abilities were intact, but there was some slowing of his mental processing speed. There was some prospect of future improvement. Mr Johnston also administered the MMPI-II, designed to elicit any sign of psychological pathology, to Mr Owbridge but no findings of clinical significance emerged.
Dr Nothling also had the assistance of a psychological assessment, and similarly concluded that Mr Owbridge had made a good recovery in terms of cognitive functioning. He had reported increased irritability and disturbed sleeping patterns since the accident. Dr Nothling regarded both as symptoms to be expected following a traumatic injury of such severity. He did not consider Mr Owbridge to require psychiatric treatment.
Dr Curtis Gray examined Mr Owbridge in November 1998, and again in
October 2000. On the first occasion, he considered him to be adjusting to his injuries well; but on the second he described significant symptoms experienced by Mr Owbridge in mid-2000 after reading various reports in relation to the accident. (That account to Dr Gray is consistent with a report from Mr Owbridge’s general practitioner, who notes that in June 2000 Mr Owbridge was anxious and depressed, and dwelling on his injuries. He commenced him on an anti-depressant, Cipramil and noted improvement on that medication.) Dr Gray considered Mr Owbridge to have been effectively treated. He anticipated that he would require continued medication and treatment for up to two years.
Mr Owbridge in his evidence described symptoms of aching in his right wrist and knees, particularly after working as a pizza delivery driver and a waiter. He was now able to move his foot fully, but there was a sensation of numbness and tingling in the skin on the top of his foot and up his right leg. The scar on his right neck was itchy and painful at times, particularly in hot weather. As a result of his abdominal injuries and the removal of part of his small intestine he had suffered from chronic diarrhoea. It was necessary for him to take a medication called Imodium twice daily. That caused him painful wind. In addition to that medication he was continuing to take Cipramil.
On the whole, Mr Owbridge seems to have made a remarkably good recovery from severe injuries. His counsel, Mr Grant-Taylor SC, proposed an award for pain, suffering and loss of amenities and scarring of $80,000. Mr Clifford QC, for the defendants, suggested $70,000. Both figures seem to me soundly based and reflective of an appropriate range. I think that I cannot do better than adopt the mid-point; that is, $75,000. Interest at 2 percent on 25,000 of that amount, as the
pre-trial component for the 3.85 years to trial, amounts to $1,925.
The parties agreed on a figure for past care at $3,500, with interest at $1,050. There was also agreement as to medical and hospital expenses met by the Health Insurance Commission at $640.55, and travelling expenses, pharmaceutical expenses, retraining expenses and other out-of-pockets at a total of $5,705.40. Interest on this last amount, at 5 percent for 3.85 years, gives $1,098.29. There was a claim by the plaintiff for $1,000 for future medical treatment and $5,000 for future medical expenses, which was not agreed. The figures provided by the plaintiff were clearly no more than a guess. However given Mr Owbridge’s need for medication for his bowel condition for the indefinite future, and one assumes, some degree of medical monitoring, I think an allowance of $5,000 in this regard is reasonable.
The area of real contention was, not surprisingly, economic loss. Mr Owbridge had left school mid-way through grade 11 in June 1994. He said that he had lost interest in his studies at that time. In December 1994, he undertook three days of paving for a family friend who paid him $150. From 13 June 1995 to 23 January 1996 he had work at Dreamworld as a ride attendant and a character actor. From January 1996 he travelled overseas for about eight months. On his return he did not work for remuneration again prior to the motor vehicle accident, although he did undertake some work experience at Opera Queensland with a view to obtaining entry to the National Institute of Dramatic Art. He applied to join the Navy in August or September 1997, and he was advised in February 1998 (after the accident) that he had been accepted for the March 1998 intake. He could not, of course, accept the offer because of his injuries.
After his convalescence, Mr Owbridge obtained a job as a pizza delivery driver, which he held from April 1998 to August 1998. From September 1998 to November 1999 he worked as a food and beverage attendant at the Broncos Leagues Club. He gave up that work for a combination of reasons. He suffered from aching in his knees and legs; he was bored; and he could see no future in the work. He followed that employment by two short episodes of work as a waiter to the end of 1999.
In 2000 Mr Owbridge returned to secondary studies, which he hoped to complete at the end of 2001 with a Senior Certificate, and an OP score sufficiently high to enable him to enrol in a Bachelor of Biomedical Science degree at Swinburne University of Technology. That course would take four years and would qualify him for work in medical technology. The third year of the course involved paid work experience. He expected to graduate to a salary between $30,000 and $50,000 per year. He was optimistic as to his prospects for entry to the course; his results thus far had indicated that his OP score would be sufficient.
Lieutenant Mark Harrington of the Royal Australian Navy provided some evidence as to terms of entry and rates of pay for a recruit to the Royal Australian Navy. Mr Owbridge had aspired to work as a combat systems operator. Lieutenant Harrington said that the drop out rate for recruits was probably of the order of ten percent. The period for which a combat systems operator would be enlisted was six years as a minimum. After a year as a seaman, an entrant would be entitled to apply for promotion to the position of able seaman. Thereafter he could become a leading seaman; the probability of promotion was 34 percent. It was possible that a seaman recruited as a combat systems operator could acquire an electrical or mechanical trade while in the Navy. Lieutenant Harrington said that there were two career points at which seamen commonly left the navy. The first was after the initial term of service, that is six years; and the second at the 10 to 12 year mark. Few remained until retirement.
The plaintiff sought past economic loss at a rate of $50 per week for the period between the date of the accident on 29 October 1997 and 29 March 1998 when Mr Owbridge might have entered the navy. Thereafter past economic loss was claimed on the basis of loss of wages as a recruit and as a seaman, and, after 1 July 2000, as an able seaman. The total, after deducting the plaintiff’s actual income, was $93,000. The defendants, while accepting that figure, proposed that it should be discounted to an amount of $50,000 to recognise the plaintiff’s ability to work in 2000 and 2001.
In my view the plaintiff’s return to full time study in 2000 and 2001 was a proper step in mitigation of his damages, given the loss of his alternative career in the navy. However, I doubt that his actual net income from personal exertion in the years 1998 and 1999 ($11,194.84) really reflects his capacity during that period; and it seems probable also that he had some capacity for part-time work in years 2000 and 2001. On the basis that one might reasonably have expected him to be able to earn another $10,000 in 1998/1999 and at least $5,000 annually while a part-time student, and also with some minor discounting for the prospect that he might have thought better of navy entrance soon after joining, I propose to discount the amount claimed to a figure of $70,000. Interest on that amount after deduction of Centrelink payments at $11,115.20 for 3.85 years at five percent gives $11,335.32. A further $4,900 should be allowed as representing loss of superannuation at seven percent of the award.
The plaintiff claimed future economic loss as an able seaman to November 2008. It was argued that the modesty of the claim as restricted to an able seaman’s income was in itself a discount. Thereafter the plaintiff should be allowed a loss of $100 per week for 35.25 years. In my view recognition of the loss of the income which might have been earned in naval service should not extend beyond the end of 2005, when the plaintiff is expected to finish his degree. At that time I consider he is likely to be capable of earning a similar income to what he might have received in the navy. After period, there must be some recognition of his diminished earning capacity by reason of his inability to work in heavy jobs.
The ADF pay rates from March 2001 were tendered in evidence. Accepting that Mr Owbridge could have expected remuneration as an able seaman, Group 4, his gross weekly income would have been $626.87. His service allowance would have added another $132, and sea-going allowance (assuming 60% of his time would be spent at sea) would add $99.25. His nett weekly income, after totalling those amounts and allowing for tax, would be of the order of $655. If one were to allow four years and six months loss as an able seaman to the end of 2005 one arrives at figure, on the 5% discount tables, of $138,205. However that component of the future economic loss award must, I think, be discounted to allow for, firstly, the prospect that he would not have continued in the navy and, secondly, the prospect that he will earn income during the course of his degree. It is the case too, that, while there is a good deal to be said for Mr Owbridge undertaking a course which will prepare him for the workforce as naval training might have, he will emerge from it with a higher level of qualification than he could have gained in the navy. I propose to allow $100,000 to reflect his loss of income to the end of 2005, and a further $50,000 thereafter as a recognition of the limitations which his injuries have placed on his general work capacity, giving a total of $150,000 for future economic loss. 8.5 percent of that amount, as representing loss of future superannuation contributions, adds another $12,750.
Description $
Pain and Suffering and loss of amenities 75,000.00 Interest at 2% per annum on $25,000 of that $75,000 for 3.85 years 1,925.00 Special damages - HIC, travelling, pharmaceutical, retraining and out-of-pocket expenses 5,705.40 Past loss of wages 70,000.00 Interest at 5% per annum after deduction of Centrelink payments of $11,115.20 for 3.85 years 11,335.32 Past loss of superannuation contribution at 7% of award 4,900.00 Loss of future earning capacity 150,000.00 Loss of future employer superannuation contributions at 8.5% 12,750.00 Past care 3,500.00 Interest on $3,500 past care 1,050.00 Interest at 5% on $5,705.40 for 3.85 years 1,098.29 Future medication etc 5,000.00 TOTAL:
$342,264.01
Adjusting, then to allow for the apportionment for contributory negligence referred to earlier, I give judgment for the plaintiff against the defendants in the sum of $205,358.40.
I will hear the parties as to costs.
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