Pethybridge v D'Orsa

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT BENDIGO

COMMON LAW DIVISION

No. 30 of 2009

MALCOLM CARL PETHYBRIDGE	Plaintiff
v
JAMES D’ORSA	Defendant

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JUDGE:	VICKERY J
WHERE HELD:	BENDIGO AND MELBOURNE
DATES OF HEARING:	22–26 FEBRUARY (BENDIGO), 1–3 MARCH (MELBOURNE) 2010
DATE OF JUDGMENT:	26 MARCH 2010
CASE MAY BE CITED AS:	PETHYBRIDGE v D’ORSA
MEDIUM NEUTRAL CITATION:	[2010] VSC 90

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NEGLIGENCE – Motor vehicle accident – Driving negligently on public highway – Motor car towing horse float driven by Defendant on wrong side of highway – Collision with motor bike ridden by Plaintiff on correct side of highway – No contributory negligence – Personal injuries – Claim for loss of future earning capacity a speculative claim not giving rise to compensation on the claimed basis.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards SC and Mr A D B Ingram	Rogers & Every
For the Defendants	Mr M R Titshall QC and Mr A J Mc G Moulds	Solicitor to the Transport Accident Commission

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................................. 1

The Litigation................................................................................................................................. 1
Mr Pethybridge............................................................................................................................. 2
Dr D’Orsa....................................................................................................................................... 3

THE COLLISION............................................................................................................................... 4

Road Conditions............................................................................................................................ 4
Events Leading to the Collision.................................................................................................. 5

Mr Pethybridge.......................................................................................................................... 5
Dr D’Orsa................................................................................................................................. 7

The Collision.................................................................................................................................. 9
Physical Indicia.............................................................................................................................. 9

Motor Cycle............................................................................................................................... 9
Horse Float............................................................................................................................... 10
Leather Vest............................................................................................................................. 11
Witnesses Attending the Scene................................................................................................ 11
Gouge Mark(s)......................................................................................................................... 12
Brake Fluid............................................................................................................................... 13
Scrape Mark............................................................................................................................. 14
Mirror...................................................................................................................................... 15
Plastic Item.............................................................................................................................. 16
Conclusions Derived from Physical Indicia............................................................................ 16
Expert Opinion........................................................................................................................ 17

Assessment of Liability.............................................................................................................. 17

DAMAGES........................................................................................................................................ 22

Pain and Suffering Damages..................................................................................................... 25

History of Treatment............................................................................................................... 25
Long Term Disabilities Caused by the Accident..................................................................... 26
Medical Evidence..................................................................................................................... 30
Dr Douglas Li.......................................................................................................................... 30
Dr Hary Wisjaja..................................................................................................................... 31
Dr John Anstee......................................................................................................................... 33
Dr Sutcliffe – Total and Permanent Unfitness for Future Employment................................ 35
Dr Eisen - Methicillin Resistant Staphylococcus Aureus (MRSA) Infection........................ 39
Dr Marshall............................................................................................................................. 40
Dr Elder................................................................................................................................... 41
Dr Dooley................................................................................................................................. 44
Conclusion and Assessment of Pain and Suffering Damages................................................. 50

Claim for Loss of Earnings and Future Earning Capacity.................................................... 50

Defendant’s Submissions......................................................................................................... 53
Loss of Opportunity................................................................................................................. 55
Assessment of Loss of Past Earnings and Future Earning Capacity...................................... 56

Conclusion and Orders.............................................................................................................. 58

HIS HONOUR:

INTRODUCTION
The Litigation

In this proceeding the Plaintiff, Malcolm Carl Pethybridge (“Mr Pethybridge”), claims damages for personal injuries and loss of past earnings and future earning capacity arising from a transport accident which occurred on 14 January 2006 on the Maroondah Highway at Narbethong Victoria. The accident (the “accident”) occurred on a stretch of roadway known as the “Black Spur” when there was a collision between a horse float being towed by the Defendant, James D’Orsa (“Dr D’Orsa”) and a motor cycle being ridden by Mr Pethybridge (“the collision”).

It is alleged by Mr Pethybridge that the collision was caused by the negligence of Dr D’Orsa in the driving, management and control of the motor vehicle which he was driving and the horse float which he was towing. The essence of the Plaintiff’s case is that the Defendant drove his motor vehicle in such a way as to allow the horse float being towed, or part of it, to travel onto the incorrect side of the roadway. Mr Pethybridge, who was riding his motorcycle on the opposite direction, collided with the horse float, causing him to be severely injured.

On the other hand, it is alleged by Dr D’Orsa that, not only was his motor vehicle on the correct side of the roadway at the time of the collision, but that the motor cycle being ridden by Mr Pethybridge was at that time on the incorrect side. Accordingly, the Defendant denies negligence and alleges that, if there was any negligence on his part, the Plaintiff was guilty of contributory negligence in the riding of his motorcycle.

The pivotal point of this case is therefore whether the Plaintiff has established that the Defendant was driving part of his horse float on the wrong side of the road when the collision occurred.

The Transport Accident Commission has determined that, as a result of the collision, the Plaintiff sustained a serious injury within the meaning of s.93 of the Transport Accident Act1986 and thereby consented to the institution of this proceeding.

Mr Pethybridge

Mr Pethybridge at the time of the collision on 14 January 2006 was approaching 51 years old, having been born on 17 February 1955. He was a fitter and turner by trade.

He had a long standing passion for motor bikes and motor cycle riding, an activity which he has pursued most of his adult life. He rode motor bikes on his parents’ farm when he was young and when he got his licence at the age of 17 years and nine months he was accustomed to riding an old motorbike on public roads in Castlemaine where he lived. He rode a motor bike nearly every day to work and back. He sometimes rode with a social group of motorcyclists from Bendigo on the first Sunday of the month. They would meet at Lake Weeroona and would set off from there.

He owned a Kawasaki 250cc model motor bike.

However, the principal love of his life was riding his 1340cc Harley Davidson motor cycle, known as a “Heritage Soft-tail Nostalgia” (the “Harley”). He purchased this motor bike when he was aged 40 years in 1995, some 11 years before the accident. It was a classic design having the look of an older motor bike. It was a wide and heavy motor bike, being one of the heaviest on the road. The handle bars of the machine were about three feet wide.

I am satisfied that Mr Pethybridge was a careful and experienced rider of long experience. He had owned and ridden his Harley for some 11 years prior to the collision. He demonstrated a detailed knowledge of the mechanics of this motorcycle and its performance characteristics. He also demonstrated a considerable depth of experience in the handling of the machine, both from a practical and a theoretical stand point. He was well aware of the idiosyncrasies of the Harley when riding it on the open road.

Dr D’Orsa

Dr D’Orsa was a management consultant to an organisation called Catholic Education Systems. He obtained a degree in physics from Melbourne University and taught physics and mathematics for 20 years. He has a PhD and is known by the title “Dr D’Orsa”.

Dr D’Orsa lives in Warragul where he conducted a business of breeding and raising alpacas.

On Saturday 14 January 2006 he had driven from his home in Warragul to a property called Acheron Alpacas situated in Buxton. He transported with him two of his female alpacas for mating. He drove his Toyota Magna motor car (“the Magna”) which towed a double horse float which he used to cart his alpacas to Buxton.

It was agreed between the parties that the following dimensions applied to the Magna and the horse float:

Width of Horse Float (outside wheel to outside wheel): 2.13 m

Width of Magna Motor Car (outside wheel to outside wheel): 1.77 m

Width of Magna Motor Car (outside mirror to outside mirror): 1.99 m

Length of Horse Float (body): 3.8 m

Length of Magna Motor Car (body): 4.8 m.

The horse float was a double float capable of carrying two horses. It had two pneumatic tyres on each side with each tyre mounted on metal wheel rims. Aluminium stoneguards provided a partial surround to part of the front and the whole of the top of the tyres. At the time of the accident it was coloured burgundy around its body and had a white plastic roof.

The horse float (wheel to wheel), was wider than the Magna motor car (wheel to wheel), by a total of .36 metre or a little over 14 inches. On each side of the Magna motor car, the horse float therefore protruded beyond the width of the motor car on each side by .18 metre or a little over 7 inches.

THE COLLISION
Road Conditions

The tranquillity of surrounding bushland is sharply interrupted by the Maroondah Highway as it snakes its way through the “Black Spur”. A benign and lush environment gives way to a bitumen tarmac, motor traffic, and road safety furniture. For driver and rider alike, the area is replete with a series of hazardous bends calling for considerable care. Mr Axup, an experienced road accident assessor said that “it requires careful driving”.

The section of the roadway in the vicinity of the accident scene typified these characteristics.

From the perspective of Mr Pethybridge, in the course of riding his motor bike in an approximately northerly direction towards Narbethong, he entered a relatively sharp left hand bend (“the Curve”). The Curve took the highway through an approximately 90 degree left hand bend. The centreline of the roadway was clearly marked with continuous double white lines through the Curve. The double white lines ceased at the point where the Curve ended. At this point the centre point of the highway was marked by a single and continuous white line extending for the length of the straight section. Approaching the Curve it was not possible to see around it to the straight section of the highway. The Curve was situated at a higher level than the straight section. Navigating the Curve for Mr Pethybridge therefore involved a left hand turn coupled with a moderate descent onto the straightened portion of roadway.

The width of the road surface throughout this section of the roadway was approximately 7 metres in width. The road was divided into single lanes of traffic, with one lane devoted to each direction of travel. The traffic lanes each way were about 3.5 metres in width. The highway was cut into the hillside. The western side of the highway was flanked by an ascending embankment, and the eastern side descended into a steep gully. The eastern side was protected by a continuous steel traffic guard rail sited immediately to the east of the road surface seal. Road reflective furniture called “Cats’ eyes” were also situated intermittently to mark the centre line of the highway.

As Dr D’Orsa approached the accident scene he was travelling in the opposite, approximately southerly, direction away from Narbethong. He was driving his Magna sedan motor car with the double horse float in tow. He entered the straight section of the highway which led him towards the Curve. Again the total width of the road surface throughout this section of the roadway was approximately 7 metres. The straight section of the road had the same characteristics as I have earlier described. Accordingly, Dr D’Orsa had to navigate his way up a moderate incline towards the oncoming Curve, which for him was an approximately 90 degree right hand bend.

The physical driving conditions at about 4 o’clock in the afternoon of 14 January 2006 when the accident occurred were excellent. At the time of the collision near the accident scene the weather was fine and visibility was good. The road surface was dry.

Events Leading to the Collision
Mr Pethybridge

Mr Pethybridge met up with his social motorcycle group on the morning of Saturday 14 January 2006 at Lake Weeroona, Bendigo. They were to participate in a pleasure ride through parts of rural Victoria. He packed a sleeping bag and a change of clothes for an overnight stay. He was joined by his son, Mr Jamie Pethybridge (“Jamie”) and Jamie’s wife Rebecca Pethybridge. There were 16 riders in the group. He took his Harley on the journey.

Following the rendezvous, Mr Pethybridge followed the group on the trek. He rode at about position 12 or 13. The group was spread out some distance along its route. They eventually got to Healesville and then entered the Black Spur along the Maroondah Highway at a time which I accept from the evidence of Dr D’Orsa as being at about 4 pm.

Mr Pethybridge rode his Harley motor bike with his headlight on throughout the journey. This was undertaken as a safety measure. The headlight came on automatically for this purpose each time he started the motor.

Before he got to the area of the accident, Mr Pethybridge was following his daughter-in-law. He then passed her, but remained towards the back of the group. There were quite a few curves in the road as he approached the accident scene. The road was also downhill.

The details of the Plaintiff’s observations and actions as he rounded the Curve will be examined in greater detail at a later point in these reasons.

Immediately after he came out of the Curve, he observed a car coming towards him. He said that its front wheel was on the white line as it approached him. He thought that the car was starting to cut the corner quite early and in an evasive action he turned the throttle down and slowed the motor bike, and attempted to move his motor bike over to his left. He also saw that the motor vehicle was towing “quite a large horse float” as he put it.[1] He also saw that “the right hand wheel of the horse float was well in on my side of the carriageway, right in”.[2]
[1]Transcript p.77.
[2]Transcript p.78.

He said that the right hand wheels of the horse float intruded into his carriageway by about 2 feet.[3]
[3]Transcript p.80.

After having come around the Curve, Mr Pethybridge said that the wheels of his motor bike were on his side of the road about three feet in from the white line in the centre of the carriageway.

Mr Pethybridge was adamant that he was on his correct side of the carriageway at all times.

Mr Pethybridge said that he first hit the right hand front wheel of the horse float. This had the effect of pulling the motor bike over to the right, before it hit the second wheel, which it did quite heavily along with Mr Pethybridge’s right foot, leg and knee. The collision ripped the brake, the brake lever and the brake cylinder and its housing[4] from the right hand lower portion of the Harley. The brake cylinder housed brake fluid in a reservoir. As they slid past each other, Mr Pethybridge said that he came out of his seat and hit his hip on the float. He then attempted to regain his seat, however, the motor bike, then out of control, spun around in a half circle. It dropped onto its left hand side on Mr Pethybridge’s part of the carriageway pointing uphill in the direction which Mr Pethybridge had come from. It fell onto Mr Pethybridge’s left leg pinning him to the road surface. He lay across the white line in the centre of the carriageway with his head and torso extending into the southbound carriageway on Dr D’Orsa’s side. A lady came up and with “super strength from somewhere” as he put it, lifted the Harley from Mr Pethybridge.[5] With the help of another man, the motor bike was wheeled to the centre of the road and put up on its stand.
[4]Exhibit P4.
[5]Transcript p.83.

Mr Pethybridge was in considerable pain. Initially there was no feeling in his right leg, which was badly hurt and twisted into a remarkable position. It began to turn a dark colour with restricted circulation. A passing doctor attended and straightened the leg to open up the blood flow. An air ambulance was called. It flew Mr Pethybridge to the Alfred Hospital to commence treatment.

Dr D’Orsa

Dr D’Orsa’s version of the collision was starkly different.

After spending about an hour at the Buxton property, having dropped off his alpacas, Dr D’Orsa set off to return home. He had travelled the route on some 19 previous occasions. This was his twentieth trip. Having stopped for a short time at the Black Spur roadhouse, he set off in a southerly direction along the Maroondah Highway to the point of the collision, which was between about 500 to 600 metres away. The route followed by Dr D’Orsa he described as being:

fairly steeply uphill. ... As you come away from the roadhouse it curves away to your left, then it straightens up and comes into the section where the accident occurred.[6]

[6]Transcript p.363.

Dr D’Orsa observed that as the road progressed into the straight portion which went up to the Curve, there was a 40 kilometre per hour advisory sign. He said that he was familiar with the Curve and the roadway generally in the area.

Dr D’Orsa said that the traffic volumes were quite high, including local traffic and visiting weekend traffic. He also said that:

You have a serious lot of motor bikes going through that area; it’s a favourite track, it goes, there is a track from Pakenham to Healesville.

Dr D’Orsa observed a group of motor cycle riders passing him as he came out of the Black Spur roadhouse. He put his headlights on as a precaution.

He said that as he proceeded up the straight stretch of the highway: “I was on my side of the road”. This evidence takes on significance in the light of matters which were subsequently put to Dr D’Orsa in cross-examination.

He explained the collision in this way:[7]

As he [Mr Pethybridge] came round the bend, to me he was just another one of the cyclists that had gone past me, I had a number of them go past me already. As I moved further up it seemed to me against the background of the lines on the road he was moving across the road on a trajectory which brought him in my direction.
Was that in the course of his negotiating the bend?---In the course of his negotiating the bend.
As he came around the bend completely, what did his motorcycle do?---It just held to the trajectory that it was on. It didn’t move.
And did you notice him pass you, that is to say where you were seated?---Yes, he did. He went past me with a certain degree of relief, because I thought he was going to hit the car originally.
And then what happened?---Then there was an almighty bang, and I knew he’d hit the trailer, and I was looking to get off the road as quickly as I could to be of assistance, if I could.
[7]Transcript p.366.

The Collision

The mechanics of this collision were the subject of considerable conflict in much of the evidence called.

In addition to the first hand testimony of Mr Pethybridge and Dr D’Orsa, the case presented by the Plaintiff was in part founded upon physical indicia of the accident, found at the scene. This evidence was adduced both for the purpose of demonstrating the longitudinal position on the highway where the collision occurred, but also where it occurred in relation to the centre line of the carriageway

Physical Indicia
Motor Cycle

There was no damage to the front of the Harley. However, there was substantial damage to the right hand side.

A remnant of the right side of the Plaintiff’s Harley was admitted into evidence.[8] This section of the motor bike was ripped from the body of the machine during the impact. It was in a damaged condition, however the components are able to be readily identified. The remnant consisted of the following items which were all still linked together: a foot rest “running board” (this was bent to an angle of approximately 90 degrees); a foot brake pedal (this was slightly bent); a foot brake cylinder and brake fluid reservoir (the brake fluid reservoir was damaged in its front and rear portions, with parts of the metal container missing); further, the plastic cover which sealed the reservoir was absent; finally there was a metal flange and structure which originally secured the other components and bolted them to the right hand lower side of the motor bike (this too was bent).
[8]Exhibit P4.

An examination of the remnant of the Harley to which I have referred shows that this was the likely point where the motor cycle came into contact with the horse float. It was the most severely damaged part of the motor cycle, and the force of the impact not only caused the extent and type of damage to which I have referred, it was also sufficient to tear off entire section from the machine where it was bolted on.

The damage to the remnant section is consistent with the description of the course of the collision given by Mr Pethybridge from the time of first impact with the front wheel of the horse float.

Horse Float

The horse float too was damaged. The damage sustained was principally to the two right hand tyres and wheel rims.

Photographs taken of the horse float after the accident clearly depict the damage to the right hand tyres and wheel rims. The damage to the front right hand wheel shows lacerations to the outside wall of the tyre and in that vicinity an outward bending of the metal wheel rim where there is a small gouge. The damage to the rear right hand wheel is markedly more extensive. There is a deep cut in the outside tyre wall and directly adjacent is a much more pronounced outward bending of the metal wheel rim where there is a significant gouge. Dr D’Orsa said that before the accident there was no damage to either rim or tyre.[9] After the accident one or both of the right hand tyres deflated. There was other damage to the right hand side of the float: the front of the right hand mudguard was knocked in and up; on the right hand front side of the trailer there was also a fitting which was used to hold mobile fencing which was broken off; there were scratch marks on the side of the float; and at the back right hand side there was a stay to which the rear right hand lights were attached but the lenses and lights were broken.
[9]Transcript p.372.

Leather Vest

The black leather vest which Mr Pethybridge was wearing at the time of the collision was admitted into evidence.[10] It revealed damage to its back portion. Mr Pethybridge said that it showed blue paint marks from the horse float. I do not accept this evidence. In the first place, a close examination of the vest shows that the marks identified by Mr Pethybridge are consistent with scuff marks which resulted from tearing the top layer of leather down to the layer of suede beneath. This could have occurred in any one of a number of ways. In the second place, I am satisfied that Dr D’Orsa’s horse float at the time of the accident was coloured as follows: maroon front, back and sides; a white or cream upper portion and roof; and plain aluminium unpainted mudguards. No portion of the horse float was blue. In the third place, the description given by Mr Pethybridge of the movement of his body immediately following the collision, before it came to rest on the roadway surface, is not consistent with his back coming into contact with the side of the horse float.
[10]Exhibit P5.

I am satisfied that the description given by Mr Pethybridge of his leather vest being impregnated with blue paint from Dr D’Orsa’s horse float during the collision was a re-construction which did not accord with the reality of what occurred. It was a false memory. However, I do not take the view that I should reject the balance of the Plaintiff’s version of the accident, as he otherwise described it, for the reasons which follow.

Witnesses Attending the Scene

Apart from the two parties, there was no person present who witnessed the collision.

Evidence was called from two members of the motor cycle group who had travelled ahead of Mr Pethybridge and returned to attend to him following the accident soon after they heard what had happened: Mr Pethybridge’s son, Mr Jamie Pethybridge; and Mr David Farley, who was a Leading Senior Constable of Police. They both gave evidence as to their observations at the scene.

Gouge Mark(s)

Since the time of the accident, the roadway has been resurfaced in the area of the collision. Markings on the road surface which were observed by witnesses following the event have now been obliterated.

Mr Jamie Pethybridge said that he observed two gouge marks etched into the bitumen. He described these as “fresh” when he saw them. They were situated about two and a half metres uphill in a southerly direction from where Mr Pethybridge was lying on the road following the collision.

The gouge marks he observed were on the eastern side of the road (Mr Pethybridge’s carriageway) to the left of the centre line by over a foot.

On Sunday 13 August 2006 Mr Jamie Pethybridge re-visited the scene. He took photographs which included the two gouge marks which he had observed at the scene of the accident some seven months before.[11] The photographs show that the southernmost gauge is somewhat more pronounced than the northernmost mark. They commence a little over a foot on the eastern side of the road to the left of the centre line, and are together located on the straight stretch of the highway before the commencement of the double lines leading to the Curve.
[11]Exhibit P10.

However, when Mr Axup, the Plaintiff’s expert accident assessor, attended the scene of the accident scene some three months later, on 16 November 2006, he was able to observe only one gauge mark which was still identifiable on the road surface. He said that Mr Jamie Pethybridge pointed out this gouge mark to him on the roadway. Mr Axup took a photograph of the mark.[12] When he observed it, he said that the mark was difficult to see, but he would have expected the mark to have been more visible ten months before. He also explained that, as traffic passes over a mark of this kind, it will be flattened out, it will accumulate dirt and become less visible.[13]
[12]Exhibit P8 photograph # 04.
[13]Transcript p.263.

Based on the diagram prepared by Mr Axup which was annexed to his report, the gouge mark which he observed was about 28 metres north of the commencement of the double lines as they were marked on the centre of the carriageway as it began to round the Curve. This is consistent with photograph taken by Mr Jamie Pethybridge of the place on the roadway where he observed gouge marks some three months before.[14]
[14]Exhibit P10.

I am satisfied that the single gouge mark observed by Mr Axup on 16 November 2006 was more than likely to have been one of the two gouge marks observed by Mr Jamie Pethybridge on 13 August 2006. It was in the same vicinity as the marks observed by Mr Jamie Pethybridge and was generally consistent with the size and shape of the marks observed by him.

The explanation for the second mark observed by Mr Jamie Pethybridge not being observable on 16 November 2006 probably lies in the fact that, as at 13 August 2006, the southernmost gauge was somewhat more pronounced than the northernmost mark; secondly, with the passage of time and traffic flow, it was likely to have been flattened out.

Brake Fluid

Both Mr Jamie Pethybridge and Mr Farley observed a deposit of brake fluid on the road surface when they attended at the scene of the accident after the collision had occurred.

Mr Jamie Pethybridge described a spill of fluid which he observed to be very close to the middle of the two gouge marks or near the marks which he observed. He observed the spill to be on top of the road surface and it hadn’t soaked into the surface. The spill was on the eastern side of the road (Mr Pethybridge’s carriageway) to the left of the centre line by about a foot.

Mr Farley also observed the spill at the scene which he positively identified as brake fluid.

I am satisfied that the descriptions of the shape of the spill given by both Mr Jamie Richardson and Mr Farley, when considered along with the expert evidence of Dr Richardson on the matter, were more consistent with being the product of a spill from a stationary vessel rather than from a vessel in motion. It had nothing of the tell tale characteristics of lateral momentum evidenced by an elongated spread or spatter of droplets in the direction of travel.

I am also satisfied that the brake fluid more than likely came from the damaged remnant of the right side of the Plaintiff’s Harley which separated from his machine following impact with the horse float. As noted earlier, the brake fluid reservoir was damaged in its front and rear portions, with parts of the metal container missing. Also missing was the cap to the brake fluid reservoir.

Scrape Mark

A curved scrape mark was also observed by Mr Axup on the roadway when he attended the accident scene on 16 November 2006. The scrape mark, extended for some 8.5 metres from a point some 5 metres south of the point of impact identified by the Plaintiff and his witnesses, on the western side of the carriageway (Mr Pethybridge’s side), to a point in the centre of the roadway on the centre line.

However, challenge was mounted by the Defendant as to whether the curved scrape mark was actually caused by the damaged horse float being towed by him. It was first discovered some 10 months after the accident in question, when Mr Axup visited the site on 16 November 2006. He said that the curved scrape mark was consistent with the rim of a wheel marking the roadway. However, he was unable to explain how, if the curved scrape mark was caused by a wheel rim of the damaged horse float, it stopped abruptly at the centre line of the carriageway and did not extend to the lay out area where the damaged horse float was towed soon after the accident, an area some 60 metres to the south.

Mr Farley who attended the scene not long after the accident did not observe the curved scrape mark. Although he was busy attending to a variety of matters at the time, including directing traffic around Mr Pethybridge as he lay on the road, he did take the opportunity to walk up the road in a southerly direction towards the Curve to look for signs of the accident. He did not observe the curved scrape mark.

Accordingly, I am not satisfied that the scrape mark observed by Mr Axup was in fact a mark which was present on the highway immediately following the collision or was caused by Dr D’Orsa’s horse float.

Mirror

The Harley had two rear vision mirrors mounted on its handle bars.[15] They were distinctive items. Each mirror was encased in a chrome silver housing embossed with a gold metallic eagle about to descend on its hapless prey. Inscribed into the casing were the words: “Live to Ride, Ride to Live – Free Spirit”. They were valuable items of memorabilia.
[15]Exhibits P6 & P7.

Dr D’Orsa observed a mirror which he said had come from Mr Pethybridge’s Harley. He said he found this over the guard rail situated on the western side of the carriageway, and four or five feet down the embankment off the road between two large trees. This was close to the Curve and in the vicinity where Dr D’Orsa said the accident occurred.

Dr D’Orsa said that he gave the mirror to a tow truck driver who attended the scene to pick up the damaged motor bike.

However, in the course of his evidence, he did not describe the mirror which he found and did not identify it by reference to the two mirrors from the Harley which were in evidence.

I am not satisfied that the mirror found at the scene by Dr O’Orsa was one of the mirrors from the Harley. There was no evidence that either of the mirrors from the Harley had been damaged or had came off the motor bike as a result of the collision. Both mirrors were subsequently recovered from the repair workshop where the Harley was later garaged by Mr Jamie Pethybridge some time after the accident.

Plastic Item

Upon revisiting the scene of the accident, Mr Pethybridge said that he also found a small piece of plastic which he identified as having come from his Harley. This he said was situated in an area adjacent to the point of impact identified by the Plaintiff and his witnesses, off-road and slightly downhill to the east of the guard rail.

On the other hand, Mr Pethybridge’s son Mr Jamie Pethybridge said that he thought he found the item himself, and that it was situated just under the guard rail on the eastern side of the carriageway and directly across from the position where he observed the gouge marks and the brake fluid spill.

Whoever found it, I am satisfied of the following matters: the piece was a missing piece of plastic from the front of the Harley; it was found either under the guard rail or slightly down hill to the east of the guard rail; and it was found in area which was immediately adjacent to the site of the gouge marks identified by Mr Jamie Pethybridge and the gouge mark later identified by Mr Axup. It was also immediately adjacent to the site of the brake fluid spill observed by Mr Jamie Pethybridge and by Mr Farley.

Conclusions Derived from Physical Indicia

It is not possible, from the physical evidence available at the scene, to identify precisely where on the highway the point of impact occurred.

Although the gauge marks, the brake fluid and the piece of plastic which I have described, were all in the same vicinity on or near the roadway where the accident occurred, and the marks and fluid were all on Mr Pethybridge’s side of the carriageway, they do not, either individually or collectively, establish precisely where the collision occurred. Their positions on the carriageway did tend to indicate the general location where the accident occurred, in the sense that they showed the area on the highway where, more than likely, the motor bike, or some of its damaged components, came to rest after the collision. However, I am not satisfied, as the Plaintiff contended, that they demonstrated the precise position where the collision occurred and I do not accept the evidence as going so far.

Expert Opinion

Mr Axup gave evidence for the Plaintiff in his capacity as an expert accident assessor. He said that, in his opinion, having observed the gauge mark pointed out to him by Mr Jamie Pethybridge, and the scrape mark which he observed, that the point of collision was on Mr Pethybridge’s side of the carriageway. In particular, he opined that the collision was in fact some one or two feet on the western side of the white painted centre line.

However, the flaw in this opinion, in my view, was that it was founded centrally upon the position and shape of the scrape mark observed by Mr Axup.

As I have not accepted that this scrape mark was present on the highway after the collision or was caused by Dr D’Orsa’s damaged horse float, I am compelled to reject the evidence of Mr Axup as to the precise point of collision.

Assessment of Liability

Having had the opportunity to observe Mr Pethybridge give his evidence during the trial, I accept his evidence that he was well aware of the precise whereabouts of the white lines on the centre of the roadway and the position of his motor bike in relation to them as he rounded the Curve on his journey northwards.

In cross-examination he said:

Your Honour, when I’m on a motor bike as we do in a car we know where the white lines are without looking down, we can see – our vision’s quite wide and we can see down and up without looking up and down, I know where the white lines were. I did not cross them.

As he described it, his vision was “quite wide” as he was seated on his machine. Having observed photographs of his Harley and a similar motor bike, I accept the evidence of the Plaintiff in this respect. There was nothing to obstruct his forward vision of the road surface of the highway or inhibit his capacity to accurately judge his navigation of the road in relation to the double and single continuous white lines which were clearly marked upon it. At all times as he rounded the Curve the Plaintiff was in a position to know exactly where the white lines were, and where he was travelling in relation to them. I do not accept that the blindness in his left eye materially inhibited his capacity in this respect.

Excessive speed was not a factor in the Plaintiff negotiating the Curve, and there was no suggestion that his fourth gear which he selected was not appropriate to maintain full control. In order to slow his motor bike I accept that he used his brake and dropped his gear from fifth gear, which was the top gear on the Harley, to fourth gear. As he said:

I had my – my motorbike in fourth gear, using the motor to slow down and the brakes to slow down around the corners and just take my time around the corners.

With the engine “running slow” as he put it, Mr Pethybridge estimated that his speed was about 35 to 40 kph as he approached the Curve.

Further, Mr Pethybridge was a motor cycle rider of long experience, and was particularly experienced in the riding of his Harley. The experience of Mr Pethybridge was well demonstrated when he described the turning procedure for a motor bike in the following terms:

A motor bike’s not like a car where you can instantly pull a steering wheel and move out of the way. A motor bike, you’ve got to get it to lean a little before you can get it to turn and so I was trying to get the motor bike to lean to get away from the car.
…
To get a motor bike to act instantly to the left, I must turn it to the right first … the motor bike has to lean so you’ve got to turn it to the right and they teach you this … when they train you to ride motorbikes, you turn them to the right which steers the wheels out from underneath you, then you go to the left.

This manoeuvre, called a “counter steer”, was also described as a standard motor cycle turning procedure by Mr Axup, the experienced motor accident assessor called by the Plaintiff.

However, I accept that this was very hard to achieve in the space and in the time open to Mr Pethybridge in the face of the oncoming car and horse float. He said that:

I tried it and it probably moved very – very little because it just happened so quick.

Mr Pethybridge did say that as he was travelling out of the corner he checked his left hand mirror too. He was cross-examined on this step with a view to demonstrating that it caused a distraction which explained his movement to the wrong side of the road. It was put that this was likely, given that he was blind in his left eye, resulting in him having to look at his left–hand mirror with his right eye. Mr Pethybridge described the incident in the following terms:

On the way out of the corner … I did check my left hand mirror. I – as I do on quite a lot of corners. The Harley–Davidson doesn’t turn as quick as a lot of other motor bikes and you’ve got to see if anyone’s coming up behind you so its just common practice. I think nearly everybody does it anyway.

I am satisfied that Mr Pethybridge’s observation through his left hand mirror was no more than a glance. It was easily undertaken by him by the use of his right eye, and was an exercise with which he was entirely familiar as a standard practice in executing turns on corners. Given the relatively slow pace at which the Harley turned, and because of its weight and size, I am satisfied that the glance at the left hand mirror described by Mr Pethybridge did not bring about any alteration in the course of the machine as it rounded the Curve.

At about 4 o’clock in the afternoon on the day of the accident, the road conditions were excellent. As he rounded the Curve, there was no traffic or obstruction on the highway which compromised his ability in any way to safely undertake the left hand turn and remain on his side of the road. I accept the Plaintiff’s evidence when he said:

The corner was a sweep, quite a long curve so I rode about - a bit to the left of the centre of my carriageway and just came around the corner quite easily, quite simply. It wasn’t hard to do at all …

In relation to the white lines marked in the road surface, I accept his evidence when he said “I did not cross them”.

This version of events, as I have found them to be, is not materially inconsistent with what Mr Pethybridge said to his appointed expert, Mr Axup, at the scene some 10 months after the accident.[16]
[16]Transcript p.279.

On the other hand, Dr D’Orsa’s evidence did not provide a satisfactory explanation of the collision.

In spite of being given the opportunity to do so, Dr D’Orsa did not say that, from his observations at the time, his horse float and his motor car were both on the left hand side of the marked continuous white lines. There was no evidence that he looked into his rear vision mirror to check the position of the horse float on the roadway as he approached the Curve. The following exchange in cross-examination reveals his position:

As you approached that area, had you allowed the wheels of the trailer to go to the wrong side of the road?---No.
And in saying that, did you make the estimate as to that because that’s the best you can do?---It’s very hard four years later to be precise as to where the car was four years ago.
All right?---To the best of my knowledge I was driving up the road much as we did the other day when we went to the view.

Further, there was cogent photographic evidence that Dr D’Orsa, some 250 metres short of the point of collision, had driven his motor car with its right hand wheels on and slightly over the centre line on the wrong side of the carriageway, resulting in the right hand wheels of the horse float he was towing being on the wrong side of the road. One of the lead motorcyclists in Mr Pethybridge’s group had a video camera mounted on his motor cycle. He took a film of the stretch of road to the immediate north of the accident scene. The film was admitted into evidence.[17] From this film, or another copy or possibly the original of the film, Mr Jamie Pethybridge produced six still photographs which were also admitted into evidence.[18] Certainly the first of those photographs in the series of six, and in my view the second photograph as well, show the right hand wheels of Dr D’Orsa’s motor car on or slightly over the white centre line, and the right hand wheels of his towed horse float over the white line on the wrong side of the carriageway. Dr D’Orsa conceded that the first photograph clearly showed the right hand side of the trailer being on the wrong side of the road, but did not agree that this was shown in the second photograph.[19] When he was asked whether crossing the centre line with a portion of his trailer was a deliberate act or a product of misjudgement, Dr D’Orsa answered: “I would say – well, it was misjudgement”.[20] The cross-examination proceeded:

So I put it to you again that it’s entirely possible that you made another misjudgement just a little further down the road as the motorcycle came around that corner?---Anything is possible.

[17]Exhibit P2.

[18]Exhibit P11.

[19]Transcript pp.384-385.

[20]Transcript p.387.

In this last answer, rather than denying that there was any misjudgement on his part as Mr Pethybridge’s motor cycle came around the Curve, based on his personal observations made at the time of the position of his own motor vehicle and its towed horse float, he conceded that a similar misjudgement as to their position, as had occurred a short time earlier, was possible.

Indeed this was the case. Dr D’Orsa’s view of the road and the position of his horse float upon it were impaired. A recent photograph of Dr D’Orsa’s motor vehicle with the horse float attached,[21] shows that the external rear vision mirrors on the motor car did not extend beyond the width of the horse float. It also shows that, because of the height of the horse float, the internal rear vision mirror centrally mounted within the motor car had its rear vision totally obstructed. Dr D’Orsa conceded that if he had extension mirrors mounted, it would have improved his ability to see the position of the trailer.[22] The result was that Dr D’Orsa had little capacity to observe precisely where his horse float was positioned on the carriageway at any particular time, and consequently had a reduced ability to judge where it was positioned in relation to the white centre line.
[21]Exhibit P21.
[22]Transcript p.382.

In any event, given that Dr D’Orsa did not say in his evidence that he actually looked in his rear vision mirror to check the position of the horse float on the carriageway as he approached the Curve, I find that he did not in fact do so.

Further, given Dr D’Orsa’s earlier misjudgment in relation to his horse float upon the carriageway, only some 250 metres short of the accident scene, I am satisfied that his ability to control his vehicle so as to avoid the horse float encroaching on the wrong side of the carriageway, was compromised. This was so in spite of Dr D’Orsa’s familiarity with the stretch of road in question, which I accept.

Upon the facts of the case, I am satisfied that the Plaintiff has proved his case on liability on the balance of probabilities. I find that it was more likely than not that the collision was caused by Dr D’Orsa driving his motor vehicle in such a way as to cause the right hand side of the horse float he was towing to travel on the wrong side of the centre line of the carriageway immediately prior to time of the impact. This caused an obstruction to Mr Pethybridge as he completed rounding the Curve on his motor cycle in the opposite direction which he could not avoid. In driving his motor vehicle in this manner, Dr D’Orsa was negligent. I do not find that Mr Pethybridge was guilty of any contributory negligence.

DAMAGES

Mr Pethybridge was a fitter and turner by trade. He completed his schooling in 1971 and in 1972 took up an apprenticeship as a fitter and turner with Castlemaine Mining and Engineering, which he served until 1977.

Mr Pethybridge, prior to the collision, enjoyed an excellent work record. He was a skilled and sought after employee, and pursued his career with dedication. Following completion of his apprenticeship he was quick to obtain employment, joining the workforce of a Bendigo enterprise known as Empire Rubber (Aust) Pty Ltd (“Empire Rubber”) in 1977. Empire Rubber manufactured rubber components for motor vehicles. He worked there as a maintenance fitter until 1981. He then took up a position as a maintenance fitter working underground for a mining company Wattle Gully Gold Mines NL where he worked between 1981 and 1985. Following this, he obtained employment as a fitter with Prince Engineering Pty Ltd between 1985 and 1987, and thereafter took up further employment between 1987 and 2000 as a fitter and turner, tool maker and maintenance supervisor with Australian Defence Industries (“ADI”). At ADI he worked at maintenance of defence equipment, including the machining of replacement gun barrels for the “Leopard” tank which was then in service. Following this period he then resumed work at Empire Rubber as a maintenance fitter where he remained until he was made redundant on 15 December 2005. He left Empire Rubber with a redundancy payment. Thus, prior to the collision he had approximately 30 years experience as a fitter and turner, although he was then not in actual employment.

As a consequence of the injuries he suffered in the collision, he has not worked since, other than being engaged at a Bendigo shopping centre to perform the role of Santa Claus during part of December each year, an activity for which he is paid approximately $300 for each Christmas season.

Mr Pethybridge’s literacy skills are not high and he has not been able to obtain alternative employment, save for the casual annual engagement to which I have referred. He is not trained for any employment other than his chosen career as a fitter and turner.

For three years after the accident he was paid a compensation wage by the Transport Accident Commission and has since been in receipt of a disability pension paid by Centrelink.

Mr Pethybridge was married in 1976 and has three children, Jamie Pethybridge born in 1977, Benjamin Pethybridge born in 1983 and Kyle Pethybridge born in 1986. He separated from his wife in 2003 and in 2005 commenced a relationship with Ms Belinda Harvey, which he maintains to this day.

Prior to the collision, Mr Pethybridge suffered some disability, but nothing which adversely impacted upon his work. In 1977 he lost vision in his left eye after being struck by a ball bearing in the course of his employment with Empire Rubber. Then in 1982 at the age of 27 years he suffered a fracture in his left patella in a motor bike accident. This necessitated surgery to his left knee. The surgery left him with some residual scarring. However, in both cases he adapted to the problems. I am satisfied that neither of these disabilities inhibited his capacity for work in his chosen career or limited the type of work he did in his trade. Nor did it impair his capacity to pursue an active lifestyle.

I accept what the Plaintiff said upon examination by his senior counsel as to his existing injuries prior to the collision with the Defendant:

You suffered an injury to your left knee in a motorcycle accident when you were about 27 years old in 1982?‑‑‑I did, Your Honour.
What had happened to your left knee as a result of that accident?‑‑‑I actually - my left knee had the patella taken off, the kneecap, on a fire hydrant cap in the road.
Following that injury were you significantly troubled by left knee symptoms or not?‑‑‑I learnt to overcome the problem. My left leg was a little bit weaker but the right leg built up and compensated for it. So it really didn't trouble me after that.
Had you also lost vision, become blind in your left eye at the age of about 22 when hit by a ball bearing?‑‑‑I did, Your Honour, yes.
Did that circumstance interfere with your work or your life in any significant way?‑‑‑I, once again, had to adapt for that but I can see and do anything that anyone else seems to do.[23]

[23]Court Transcript 24 February 2010, p.69, lines 12-29.

He described himself as an “outdoors man”. He loved water skiing and snow skiing.

Since the collision he has not been able to pursue these physical activities or his motorcycle riding because of his injuries.

Pain and Suffering Damages

The Plaintiff suffered serious injuries in the collision. In the Plaintiff’s statement of claim dated 26 February 2009, the following particulars of injury are alleged:

·Severe injury to the right leg with multiple fractures, including fractures of the right distal femur, a comminuted fracture of the tibia including the tibial plateau, as well as an avulsion of the patella tendon from the tibia; anterior compartment syndrome of the right leg; staphylococcal abscess of the right tibia; development of osteomyelitis; scarring constituting a significant cosmetic disability.
·Injury to and/or aggravation of previous injury to the left knee.
·Fracture of the right toe.
·Fracture of the middle finger.
·Pain and shock.

History of Treatment

The accident between Mr Pethybridge and Mr D’Orsa occurred on 14 January 2006. Mr Pethybridge was taken to the Alfred Hospital with the following injuries:

open comminuted fracture right distal femur, open comminuted fracture proximal tibia, acute compartment syndrome, disruption to extensor mechanism with patella tendon avulsion and distal pole patella fracture as well as superficial soft tissue wounds left knee.

On 15 January 2006, the Plaintiff had emergency surgery for “wound debridement and fasciotomies to right leg and fitting of external fixateur and screws and plates for internal fixation”. On 20 January 2006, the Plaintiff had surgery for “open reduction and internal fixation of proximal tibial plateau structure”.

On 27 January 2006, the Plaintiff was discharged from the Alfred Hospital to the Epworth Rehabilitation Centre.

On 10 March 2006, the Plaintiff was re-admitted to the Alfred Hospital due to a wound infection affecting the right lower leg. The infection involved two superficial ulcers over the metalware in the right tibia.[24] The Plaintiff needed surgery involving “wound debridement and VAC dressing – MRSA diagnosed – antibiotics commenced”. Between 17 March 2006 and 5 April 2006, the Plaintiff had five more surgeries involving “further wound debridement and VAC dressings” with one surgery involving “soleus flap to cover wound”. After these surgeries the Plaintiff was discharged back to Epworth Rehabilitation Hospital.
[24]Exhibit P15 - Medical Report of Dr Douglas Li dated 12 February 2010.

On 21 April 2006, the Plaintiff was discharged from Epworth Rehabilitation Hospital to attend the John Lindell Rehabilitation Unit in Bendigo for physiotherapy, occupational therapy and exercise therapy.

On 19 July 2006, the Plaintiff had further surgery involving “removing the K wire”; and on 2 May 2007, another surgery involving “removal of majority of metalware from femur and proximal tibia”.

On 1 January 2008, the Plaintiff ceased antibiotic treatment for the MRSA infection and in April 2008, ceased rehabilitation at the John Lindell Rehabilitation Unit.

Long Term Disabilities Caused by the Accident

The injury to his right leg as a result of the accident has left Mr Pethybridge with significant long term disabilities.

When questioned about the scarring to his right leg caused by the initial operation and the subsequent Methicillin Resistant Staphylococcus Aureus (MRSA) Infection, the Plaintiff stated:

Your Honour, the initial operation, they cut the right leg from the top to the ankle and that was mainly, first off, to relieve the pressure out of the muscles because they swelled up and they end up blocking their own blood off and apparently it kills the muscle. So it's a new procedure they've got, they open the muscles up and bleed them out. They also on the initial operation, put a little bit of metal up the top of my leg to hold the femur in line and the knee together. At that point - they also cut down the inside of my leg at that point to relieve pressure out of the muscles and I think that was the first operation. Then there was a later - and they also - sorry, Your Honour, I keep remembering things. They also drilled three holes in the top of my leg and three holes in the ankle and put an external - what do they call it - an external bracing to hold the leg in line. That was left there until it all settled down for a while. Then I went back, I think there's another date there, we went back into the operating theatre again for quite a lengthy operation where they put all the metal down the lower part of my leg and put the kneecap back on and put what they call a K wire in to hold it and fixed it all together.[25]
…
Would you describe again the areas of your leg where there have been muscle removed by reason of the - to treat the MRSA infection?‑‑‑Your Honour, the MRSA started with a little hole in my leg and just in a few days, I've never seen anything like it, it just ate the skin and muscle away and moved up the metal - it followed the metal up the leg. They put me on vancomycin, a drug, through all my system to settle it down. They put a vacuum - what they did, they cut it out, they cut all the dead muscle out and that, put the vacuum in it and had a little vacuum pump on me all the time sucking anything away from there. They kept this up until it settled down. As it settled down they kept me on the vancomycin, they moved me also onto rifampicin and fusidic acid and then seeing there was no tissue - there was not any tissue to put the skin on, the skin graft onto. They moved a muscle from my ankle up, the plastic surgeons apparently did that, they put it in place and put skin grafts over it. They also did the skin graft on the outside of my left, on the right leg, where the wheel had hit my leg and the skin had been damaged so bad it died. So they put a skin graft on there too.
Are you left also then with loss of muscle where they've removed it from the right calf?‑‑‑That's right, they actually took that muscle. The muscle is in two, there's only half of it there now.[26]

[25]Court Transcript 24 February 2010, p.99, lines 21-31; p.100, lines 1-12.

[26]Court Transcript 24 February 2010, p.100, lines 20-31; p.101, lines 1-13.

I had the opportunity to view the scarring to the Plaintiff’s right leg, and I accept his evidence in this regard.

Mr Pethybridge also described continuing swelling and discomfort in his right leg in the following terms, which I accept:

What are the areas of your leg that swell?‑‑‑The knee. The knee mainly and down around the ankle.
Is there pain in that leg there all the time or does it come and go?‑‑‑It's there all the time, Your Honour, but depending on what I do it gets worse and comes up and down. I've just got to learn to handle it, learn to live with it.[27]
[27]Court Transcript 24 February 2010, p.100, lines 13-19.
…
You said there's pain there all the time but it gets worse depending on what you do?‑‑‑That's right, Your Honour.
How long are you comfortably able to spend on your feet?‑‑‑Your Honour, if I move I can stand up longer, if I'm walking, until it gets to a stage where the knee swells up through moving. Standing still, I think, I did as long as I could there standing still, it just swells and just starts aching and hurting - did you want to know how long I can‑‑‑?
Yes. The way you were at the end of standing in the witness box for about an hour, how bad was that for you?‑‑‑That got quite bad at the end, yes, I couldn't stand it.
How much weight were you trying to take on your hands towards the end?‑‑‑I was taking weight on my hands, it was just - it swelled to a point, it just started hurting all of a sudden really bad at the end there, yes. All it does - all I've got to do is sit down and put my leg up for a while, elevate it for a while and it settles down again.
In terms of sitting, how comfortable is it for you to sit still for half an hour or an hour at a time?‑‑‑Sitting down it does still swell a bit, I like to put it up somewhere. Like, if I'm at home, I put it up at home. If I'm down the street I quite often sit down and put it up on another chair. Just sitting there still it will start to play up. The more I move it - if I've got to move it quite often when I'm sitting down I'll just wiggle my foot or move it and it helps the blood flow get moving again.
In terms of walking, is there a milk bar you walk to from your home?‑‑‑I actually go down to - it's a supermarket around the corner.
A supermarket, sorry?‑‑‑Yes, it's about two blocks down. I go down and get my shopping, come home and sit down, hopefully let it calm down again.
By the time you've walked to that supermarket and back, what do you say as to whether you could walk any further comfortably than that?‑‑‑That's the distance I walk, yes. I get back from there and I've got to sit down and it'll calm down again and then I can do whatever I've got to do. I'll put the groceries away then or‑‑‑
You say that the pain gets more severe at times?‑‑‑If I do more things, yes, it does.
At its most severe how is it for you that pain?‑‑‑It does get quite sore and if I overdo it too much I have trouble sleeping at night then. I usually take a Panadol or something like that, it helps me sleep if I've pushed it too far.[28]

[28]Court Transcript 24 February 2010, p.101, lines 18-31; p.102, lines 1-31; p.103, line 1.

The Plaintiff was then asked about his level of pain experienced in day-to-day life. I accept his description when he said:

How severe is the level of pain that you live with on a daily basis?‑‑‑Your Honour, you sort of learn to live with pain, it's a thing you've got to sort of keep above, yes. If I can keep above it it's - you've just got to live with it. Your Honour, the leg swells sometimes, some days it's worse than others and sometimes it's not. Where it's going to end up who knows?
We saw you before in the witness box, you said it had reduced you to tears?‑‑‑It did a bit, yes.
Are there times when the pain gets too much for you?‑‑‑Yes, it can do, Your Honour. It does, yes. The best thing to stop is to sit down, elevate the leg and wait for it to come good a bit.

Belinda Harvey has been in a romantic relationship with the Plaintiff since about four months before the accident in which the Plaintiff was injured. She gave evidence regarding the Plaintiff’s continuing pain and discomfort arising from his injuries, which I accept:

In terms of his current circumstances as far as his knee is concerned if we take for example the other day when he got home from court can you tell His Honour what happened, what you had to do when you got home from court that day, the first day I think he'd been‑‑‑?‑‑‑The first day - nearly every day to be honest.
Sorry, the second day he was in court?‑‑‑The second, yes, straight after going up to the Black Spur. His leg was extremely - he was just in so much agony. He put himself down on the lounge chair, it's a recliner, reclined himself down and he was nearly asleep. He was in that much agony, I have actually not seen it like that since pretty much the beginning of all of - like with the accident and his injuries.
It took a lot out of him. He was napping a bit not long after that and we were in bed quite early and very much asleep, but then he was waking through the night with cramps and aches and pains just - yes, he probably - he woke, I'm not even sure how many times because neither of us did much sleeping, but he did wake quite a numerous amount of times throughout the night with aches and pains.
In terms of his normal sleeping habit how does that correlate to that?‑‑‑He doesn't wake every morning with a cramp usually around six o'clock in the morning, I seem to have got that pattern worked out, and when he gets out of bed he has to sit on the bed first, and then when he stands up he's got to sort of - he pauses say for a few seconds and to think about, okay I've got to get the leg to move again. It does take him a bit to get around the bed, and it's quite sore until he gets it moving again, yes, but the cramps start at about six in the morning.
How has his leg injury affected your sexual relationship?‑‑‑It has changed it incredibly. How can I put this. What we were doing before the accident is no longer a part of our life now. We've had to totally change our whole lifestyle to accommodate Mal's leg, the cramping, the positions, everything.[29]
[29]Court Transcript 26 February 2010, p.325, lines 29-31; p.326, lines 1-31; p.327, lines 1-3.

Medical Evidence

I accept all of the following medical evidence put on by the Plaintiff, which was tendered in the form of reports without challenge by way of cross-examination or submission.

Dr Douglas Li

Dr Douglas Li is a practicing Orthopaedic Surgeon who treated the Plaintiff on 14 January 2006 at the Alfred Hospital. By way of patient background, he stated in his report dated 12 February 2010:

Mr Malcolm Pethybridge was brought to the Alfred Hospital Trauma Centre on January 14, 2006 following a motorbike accident earlier that day. He was a 51 year old man who had a past history of a motorbike accident many years ago resulting in a fractured patella which was excised. Furthermore he had a work injury resulting in left eye blindness. Apart from hypertension he was otherwise fit and healthy.
On January 14, 2006 Mr Pethybridge was involved in a motorbike accident. According to the ambulance notes he hit a car and horse float at approximately 60kmph. He sustained a serious injury to the right lower limb resulting in transfer to the Alfred Hospital. Upon arrival at the Alfred Hospital Trauma Centre the multiple traumas team assessed him and the majority of his injuries were musculoskeletal. He was referred to the orthopaedic fellow (Dr Hans Boegl) who assessed his injuries. Dr Boegl contacted me, as I was the on-call orthopaedic and trauma surgeon. The injuries to the right knee were as follows:
1Floating right knee with significant soft tissue compromise and compartment syndrome
2Grade 2 Open Comminuted fracture right distal femur (intercondylar)
3Grade 2 Open Comminuted fracture proximal tibia (medial and lateral plateau with extension to shaft – Schatzker 6)
4Disruption to extensor mechanism with patella tendon avulsion and distal pole patella fracture

5 Acute compartment syndrome right leg
6 Left knee soft tissue superficial wounds.

As to the surgical events which occurred at the Alfred Hospital, Dr Li states:

Mr Pethybridge was taken to the emergency operating room in the early hours of January 15, 2006. He underwent debridement of his three right leg and two-left leg wounds. He had two incisional fasciotomies to the right leg to decompress the anterolateral and posteromedial compartments and fortunately the muscles were viable. A bridging external fixateur (3-pins to femur and 3-pins to tibia) were performed to stabilise the floating knee. A Periloc plate was applied to lateral distal femur and the intercondylar fragments were stabilised with interfragmentary screws and the distal femur fracture stabilised with the plate and screw construct.

On January 20, 2006, Dr Li states the Plaintiff returned back to the operating rooms for further surgery to the right leg:

The right Schatzker 6 procimal tibial plateau fracture was openly reduced and internally fixed with plate and screw construct. The disrupted extensor mechanism with patella tendon avulsion was reconstructed and the repair augmented with a cable. The lateral femoral condyle osteochrondral fragment fixation was revised.

Commenting on his most recent review consultation with the Plaintiff on 17 January 2008, Dr Li says the following:

On that day he reported that he had been off his antibiotics for the past three weeks without any recurrence of infection. He only complained of pain about the right leg after exercise. He note that his mobility was somewhat limited and he could not walk far distances. He was walking without the aid of any gait devices. Nonetheless he was happy that he had a leg to stand on. Examination demonstrated that scars about the leg had healed. There were no overt signs of infection. There was a quadriceps wasting. The knee had a range of motion of 0-70 degrees. The knee was stable to ligamentous stress testing. The x-rays demonstrated the fractures to the right distal femur and right proximal tibial had united. There was secondary degenerate disease involving the femoral tibial articulation.

Dr Li decided at that consultation that no further treatment would be indicated and that the Plaintiff was to continue with his own exercises to maintain motion and strength about the knee. Dr Li warned the Plaintiff that in the future he would require further surgery at the right knees as the Plaintiff had secondary degenerate joint disease which would gradually deteriorate enough until the pain and stiffness were severe and debilitating, requiring further surgery either in the form of total knee replacement or knee fusion.

Dr Hary Wisjaja

Dr Wisjaja is a Consultant Physician in Rehabilitation Medicine at the Epworth Rehabilitation Centre, involved in the Plaintiff’s rehabilitation. By way of background he stated in his report dated 4 December 2006:

Mr Pethybridge was first transferred to the Epworth Rehabilitation Centre on 27 January 2006 after having been involved in a motor cycle accident on 14 January 2006. His acute care was undertaken at the Alfred Hospital. From the transfer information it was noticed that he sustained the following injuries:
1Comminuted fracture of the right distal femur. This was treated with internal fixation
2Comminuted fracture of the right proximal tibia, involving the medial and lateral plateau. This was treated with internal fixation also
3Avulsed patellar tendon with fractured distal pole disrupted extensor mechanism. The patellar tendon was repaired and meniscectomy was undertaken as well
4Fractured neck of the right 3^rd metacarpal
5Mr Pethybridge developed compartment syndrome, requiring the fasciotomy of the femur.

Mr Pethybridge reported a past history of a motor bike accident, having had the left patella excised. He also had blindness in his left eye and hypertension.

On admission to the Epworth Rehabilitation Centre, Dr Wijaja stated that Mr Pethybridge’s:

right leg was immobilised in a Zimmer knee splint and his ankle was quite restricted in Dorsi flexion. The power was generally acceptable, except inversion. The surgical wound was satisfactory. The right hand had severe bruising and swelling present.

During the Plaintiff’s in-patient care at Epworth Rehabilitation, Dr Wijaja stated that he “remained stable” and “pain was manageable”. However:

[Mr Pethybridge] developed partial skin necrosis in the lateral aspect of the right leg. He was reviewed by Professor Kossman, and dressing protocol was commenced. He also developed some wound breakdown on the right side (the old pinsite) associated with a low grade fever and raised septic parameters. He was commenced on intravenous antibiotics. A would swab did grow MRSA and he was treated with appropriate antibiotics. He was subsequently transferred to the Alfred Hospital for a further surgical procedure on 10 March 2006.

Following his return to the Epworth Rehabilitation Centre on 11 April 2006, Dr Wijaja states Mr Pethybridge had “debridement and washout as well as vacuum dressing. A skin graft was performed”. As to his observations of Mr Pethybridge upon readmission, Dr Wijaja stated:

Clinically the wound was satisfactory. Medically, he remained stable and continued to be on oral antibiotics. Physically he progressed well and was ambulant with crutches and independent with his transfers. Functionally, he was self-caring.

By Dr Wijaja’s report, the Plaintiff was well enough for discharge home on 21 April 2006, and a follow up was arranged through local facilities.

As to his long term prognosis of the Plaintiffs’ condition, Dr Wijaja was of the view that it:

[his prognosis] remains guarded until bone union occurs. I would imagine continued treatment will be undertaken at the Alfred Hospital. Whether further surgery will be required will depend upon his progress. I would anticipate that he would remain unfit for work for a further six months.

Dr John Anstee

Dr John Anstee is a Plastic and Reconstructive Surgeon who assessed the Plaintiff on 4 February 2010.

Dr Anstee’s understanding of the history of the Plaintiff’s injuries was in line with the medical reports of both Dr Li and Dr Wijaja. Dr Anstee stated the following:

Mr Pethybridge was on a motorcycle and negotiating a left hand bend. An oncoming car was towing a horse float which clipped the right pedal of Mr Pethybridge’s Harley Davidson … His right leg was twisted under the trailer and he suffered:
·A fracture of the right femur
·A fracture of the right tibia
·A fracture of the right patella
·A fracture of the right fibula
·A fracture of the 1^st metatarsal
·A fracture of the metacarpal of the right middle finger

Mr Pethybridge had extensive soft tissue injuries and the patellar tendon was avulsed from the right tibia.
Mr Pethybridge underwent emergency surgery on his arrival at the Alfred Hospital. His treatment included a fasciotomy for an anterior compartment syndrome on the right. Open reduction and internal fixation of the fractures was carried out and his post operative progress was slowed by skin necrosis on the lateral aspect of the right leg and an antibiotic resistant staphylococcal infection.
Mr Pethybridge had several further operations to deal with the tissue loss and infection. Further surgery included a gastrocnemius flap using the medial portion of that muscle to cover the right tibial fracture.

Dr Anstee went on to comment that “[Mr Pethybridge’s] recovery was, however, far from complete”. Dr Anstee then listed the Plaintiff’s current complaints and their subsequent treatment:

·He is unable to do things which he could achieve easily prior to the accident.
·“the accident has turned me into an old man”.
·He is unable to walk more than about 200m without developing severe pain in the right knee.
·He has constant pain in the right knee which is worsened by cramping when he walks.
·He has cramps in both the anterior and posterior compartments of his right lower leg which makes recovery difficult.
·He is unable to stand for more than 10 minutes without pain and manages better if he can move around.
·The scars are of some concern.
·He is unable to climb ladders.
·He finds it difficult to get out of a chair.
·He has not worked since the accident.
·He finds that the scarred areas sunburn easily.

Upon completing his clinical examination, Dr Anstee noted the Plaintiff as a “pleasant and co-operative man who has had several other serious injuries not related to this accident. The range of movement of the right hand is normal”. Dr Anstee then listed the scarring as:

·580mm x 210mm with a contour defect of 10mm on the right anterior leg affecting both upper and lower leg.
·170mm x 150mm split skin graft donor site anterior aspect right thigh.
·The medial portion of the right gastrocnemius muscle has been detached and transposed to cover a fracture in the right tibia.

Dr Anstee analysed his findings in the following way:

Stabilisation:
I believe Mr Pethybridge’s right hand movements and scarring are stable.
Impairment Evaluation:
Mr Pethybridge falls into Class 2 on page 280 of the AMA Guides to the Evaluation of Permanent Impairment, 4^th Edition. I believe that he is in a significantly worse situation than the example 6 on page 283 of the Guides. I say that as it is unlikely that he will progress from middle to old age without episodes of wound breakdown or ulceration in the extensive grafted and scarred areas described above. Constant treatment is required and I note that Mr Pethybridge has already determined that the area sunburns easily. It is vitally important that he protects the scarred area from sunlight. Constant care and support of the scarred area will be necessary to reduce the number of episodes of ulceration or infection to a minimum. I would put his whole person impairment, due to the scarring alone, at 10% even though I feel he is in a worse situation than example 6 as stated above.
Lifestyle Assessment
Mobility: Reduced by the scarring as Mr Pethybridge will require constant protection of the scarred and grafted areas.
·Personal relationships: adversely affected by the scarring.
·Home and work activities: adversely affected by the scarring
·Leisure activities: adversely affected by the scarring.

As to his prognosis, Dr Anstee stated the following:

Fitness for work:
Reduced by virtue of the scarring alone.
Period of Future Incapacity:
Mr Pethybridge is unlikely to get through his middle and old age without episodes of ulceration or wound breakdown. Conservative management will probably be sufficient but the scarred and grafted area is more susceptible to injury and should ulceration occur, healing will take longer than would be the case in normal skin.
Future treatment:
I doubt that any further treatment of his scarring is appropriate.
Review date:
Not set.
Examination by other specialists:
Mr Pethybridge’s main problems relate to his orthopaedic injuries and the views of an orthopaedic surgeon should be sought.

Dr Sutcliffe – Total and Permanent Unfitness for Future Employment

Dr Helen Sutcliffe is an Occupational Physician who assessed the Plaintiff on 10 February 2010 and interviewed him over a period of one hour.

In her report dated 17 February 2010, Dr Sutcliffe begins with stating her understanding of the Plaintiff’s occupational history, job description, past medical history, and training and education history. As to the history of the Plaintiff’s condition, Dr Sutcliffe stated the following:

Mr Pethybridge sustained injuries as a result of collision with a car towing a trailer which crossed the white line which (sic) travelling on a curving road. Mr Pethybridge was riding a motor cycle and he described how the trailer was extending past the level of the car and he could not swerve out of the way to avoid contact.

·Claim for Compensation form, 15.01.06
·Outpatient rehabilitation plan, 31.05.07
·Dr S Snow, 11.12.06,06.10.07,11.12.06
·Dr H Wijaja, 04.12.06
·Mr Doug Li, 11.01.07, 08.03.07, 26.07.07
·Dr D Eaton, 19.02.07
·Excerpts fro FOI The Alfred Hospital – discharge summary, operation reports, ambulance case sheets and radiology reports.

Dr Dooley’s understanding of the Plaintiff’s clinical history is in accordance with that of the Plaintiff’s statement of claim and previous expert reports. As to his “Physical Evaluation” of the Plaintiff, Dr Dooley stated the following:

[Mr Pethybridge] walks with a limp affecting both legs, mainly the right leg. As stated, there was no further injury to his left knee. Here, he has an adherent scar on the front of the knee, with knock-knee deformity of 10 degrees and severe lateral compartment osteoarthritis. The patella has been excised. His knee straightens fully and flexes to 125 degrees. The ligaments in his left knee are sound.
Examination of his right leg reveals no leg length discrepancy. His right hip joint is normal. The fractures in the right leg have united with 10 degrees of valgus deformity, which affects predominantly the supracondylar fracture of the femur, but to a lesser extent the fractures of the tibia.
There is extensive scarring over the right side of the leg, extending from the mid-thigh level to almost ankle level, 50cm long. This was necessary, to conduct the extensive surgery for plating of the comminuted fracture of the proximal tibia and intercondylar fractures, as well as plating of the supracondylar fracture of the femur. In addition, he has a 28 cm scar over the inner side of the calf and shin, for the compartment syndrome. In the midsection, there is a muscle flap with adherent split skin grafting over it, measuring 9cm long x 4cm wide.
As a result of the extensive crushing of muscle in his right lower leg, he has limited movements in his right ankle joint. There were no intra-articular fractures affecting his right ankle or hindfoot, but he has limited movements in the right ankle joint, with extension to 5 degrees only and plantar flexion of 25 degrees. He also has mild loss of movements in his right hindfoot, with inversion to 15 degrees and eversion to 10 degrees.
Examination of his right knee joint reveals hyperextension of 10 degrees, with flexion from 0 to 65 degrees. The ligaments in his right knee joint are sound, both cruciate and collateral ligaments. There is moderate swelling and thickening of the right knee joint. The most obvious abnormality is the gross retropatellar crepitus noted on flexion of the knee, due to patellar cartilage damage and the avulsion of the patellar ligament.
Examination of his right hand revealed a depressed knuckle of the third metacarpal head, but he had a full range of movement present in all joints of the right hand. In particular, movements in his right middle finger were normal. The right hand was otherwise normal .

Dr Dooley continued his report with an examination of X-rays and concluded as to the Plaintiff’s condition as follows:

X-rays of his right lower femur, right knee and tibia and fibula, on 7 March 2006, showed the fractures in the supracondylar area of the femur, treated with long plate and screws, uniting with 10 degrees of valgus deformity. The patellar ligament had been avulsed and replaced, and held in position temporarily by a circumferential strong wire through the patella and tibial tubercle area of the tibia.
The latest x-rays of the right knee, of 16 August 2007, showed no loss of articular cartilage in the knee joint, in either the lateral or medial compartments. There was joint incongruity in the lateral tibial plateau with the lateral fragment angulated 5 degrees.
…
Mr Pethybridge, already disabled by severe post-traumatic arthritis affecting his left knee joint, following an old motor cycle accident some twenty years ago, following a further motor cycle accident on 14 January 2006, sustained serious multiple injuries to his right leg, with a comminuted unstable supracondylar fracture of the right femur and a comminuted fracture of the upper half of the tibia and fibula involving the right knee joint, with a separate injury to his right knee joint with avulsion of the patellar attachment of the ligamentum patellae.
All three injuries required reconstruction, using plates and screws from the femoral and tibial fractures, as well as repair of the ligamentum patellae with temporary wiring of the patella to the tibia to protect the operative tendon repair.
Overall, he had made a reasonable discovery from those severe injuries. The long term prognosis is guarded. He already had gross patello-femoral arthritis, and the probabilities are that in the not-too-distant future he will develop severe post-traumatic arthritis affecting his right knee joint.
In time, he may require bilateral total knee replacement arthroplasties for severe osteoarthritis of both knee joints. Obviously, the TAC would not be responsible for the treatment of his left knee condition.

Dr Dooley then assessed the Plaintiff’s percentage of scarring and orthopaedic impairment as well as impairment to his lifestyle:

IMPAIRMENT ASSESSMENT (ORTHOPAEDIC AND SCARRING)
[Mr Pethybridge’s] assessment is as follows:
14.02.08 AMA Guides (Fourth Edition)
All joint movements measured with a goniometer

DESCRIPTION TABLE % IMPAIRMENT

1.0 RIGHT LEG Table 64 3/85 10% whole person

1.1 Supracondylar fracture of femur, united with 10% of valgus Table 64 3/85 5% whole person

1.3 Gross patello-femoral crepitus with subluxation
Table 64 3/85

(not applicable, as right knee joint is being assessed by the Loss of Motion Model)
3% whole person

1.4 Right ankle
Mild loss of movements Table 42 3/78 3% whole person

1.5 Right hindfoot
Mild loss of movements Table 43 3/78 1% whole person

1.6 Right knee joint
Moderate loss of motion Table 1.41 3/78 8% whole person

2.0 SCARRING – right leg
Gross scarring with numb patches between scars Table 2 13/280
Class 1 2% whole person

3.0 RIGHT HAND

Full range of movements, all joint of right hand – in particular, right middle finger
Figs 19,21,23
3/31 – 3/34 incl. 0% right upper extremity

TOTAL PHYSICAL IMPAIRMENT, RIGHT LEG:

(To be combined with assessment figure for scarring given by Professor Marshall)

§ 10% whole person combined with 8% whole person = 17% whole person

§ 17% whole person combined with 5% whole person = 21% whole person

§ 21% whole person combined with 3% whole person = 23% whole person

§ 23% whole person combined with 2% whole person = 25% whole person

§ 25% whole person combined with 1% whole person = 26% WHOLE PERSON

LIFESTYLE ASSESSMENT
Mobility: Still markedly limited
Personal relationships: unchanged.
Work and domestic life: He has always worked as a fitter and turner. It is doubtful whether he will be able to return to any work involving repetitive lifting, and standing on his feet all day, etc. he is now moderately severely disabled by post-traumatic arthritis affecting his left knee joint following the first transport accident, and now by the severe injuries affecting his right leg.
The probabilities are that, in time, in the next few years he will develop moderately severe post-traumatic arthritis affecting his right knee joint .
He would be better now to teach fitting and turning in a trades school, as this would not involve heavy physical work, and he could alternatively sit and stand in lecturing and demonstrating.

Dr Dooley ended his report with the following prognosis:

Mr Pethybridge was already disabled by severe post-traumatic arthritis affecting his left knee joint, following a motor cycle accident some twenty years ago. Following a further motor cycle accident, on 14 January 2006, he sustained serious multiple injuries to his right leg, involving a comminuted unstable supracondylar fracture of the right femur and a comminuted fracture of the upper half of t he tibia and fibula, involving the right knee joint. There was a separate injury to his right knee joint, with avulsion of the patellar attachment of the ligamentum patellae.
All three injuries involved reconstruction, using plates and screws for the femoral and tibial fractures, as well as repair of the ligamentum patellae with temporary wiring of the patella to the tibia, to protect the operative tendon repair. As a result of the avulsed patella, he is left with severe stiffness affecting his left knee joint. I have assessed this impairment under the Loss of Motion Model, rather than under the Injury Model. In this instance, he is not entitled to additional impairment for the severe post-traumatic patello-femoral arthritis.
I have assessed his other injuries under the Diagnostic Related Estimates for the fractured femur and fractured tibia.
I have measured his total physical impairment at 26% whole person.
Finally, he has made good recovery following the fractured third metacarpal neck in his right hand, which has healed leaving him with no loss of motion in his right middle finger or in the other fingers and thumb of his right hand.
The long term prognosis for the severe injuries to his right leg is guarded. He already has gross patello-femoral arthritis and, because of the nature of the fractures, the probabilities are that, in the not-too-distant future, he will develop severe post-traumatic arthritis affecting his right knee joint, and probably involve to a major degree the lateral compartment of the knee, as he already has a valgus deformity following mal-alignment of the fractures, and in addition, did have a fracture involving the lateral tibial plateau, which has united with joint incongruity.

In Dr Dooley’s second report dated 12 February 2010, his physical evaluation of the Plaintiff remains largely unchanged, with the only additions being his note of the Plaintiff’s use of a walking stick and the reference to the audibility of his right knee when walking. Dr Dooley stated in his second report:

[Mr Pethybridge] walks with a limp affecting both legs and uses a walking stick, i.e. a one-armed crutch in his left arm to protect his right leg.
In his left leg he has an adherent scar on the front of the knee, with knock-knee deformity of 10 degrees and severe lateral compartment osteoarthritis, and he has had a patellectomy performed. Despite this his knee straightens fully and flexes to 125 degrees.
Examination of his right leg reveals no leg length discrepancy compared with his left leg. His right hip joint is normal. There is extensive scarring in the right leg; on the outer side of the leg there is a 50cm long scar extending from the mid-thigh level to almost ankle level, and, in addition, he has a 28 cm scar over the inner side of the calf and shin, for the compartment syndrome. In the midsection, there is a muscle flap with adherent split skin grafting over it, measuring 9cm long x 4cm wide. Fortunately there are no signs of recurrent infection in the right tibia. The fractures in the right leg have united with 10 degrees of valgus deformity, which affects predominantly the supracondylar fracture of the femur, but to a lesser extent the fractures of the tibia.
Examination of his right knee joint reveals hyperextension of 10 degrees, with flexion from 0 to 70 degrees. The ligaments in his right knee joint are sound, both cruciate and collateral ligaments. There is moderate swelling and thickening of the right knee joint. The most obvious abnormality is the gross retropatellar crepitus noted on flexion of the knee, which is audible on almost every step he takes.
As a result of the extensive crushing of muscle in his right lower leg, he has limited movements in his right ankle joint. There were no intra-articular fractures affecting his right ankle or hindfoot, but he has only 5 degrees of extension and plantar flexion of 25 degrees, with mild loss of movements in his right hindfoot with inversion to 15 degrees and eversion to 10 degrees. He has normal movements in the right forefoot, except in the great toe where he has no active flexion but excellent extension to 35 degrees.
Examination of his right hand revealed a depressed knuckle of the third metacarpal head, but he has a full range of movement present in all joints of the right hand including the middle finger. The right hand was otherwise normal.

Concerning the X-rays, Dr Dooley notes the most recent of the knee joint in 16 August 2007, which:

showed no loss of articular cartilage in the knee joint in either the lateral or medial compartments. If more recent x-rays show loss of articular cartilage in the tibio-femoral joints of the right tibia and fibula, then he would be entitled to additional impairment beyond the 2% whole person given for the patello-femoral arthritis.

Dr Dooley concludes the second of his two reports, by answering specific questions posed by Mr Michael Mullins, Common Law Strategic Coordinator for the Transport Accident Commission:

1. The prognosis for Malcolm Pethybridge’s injuries.
Following the further motorcycle accident on 14 January 2006, this man sustained serious multiple injuries to the right leg, which have been detailed; namely, a comminuted unstable supracondylar fracture of the right femur and a comminuted fracture of the proximal half of the tibia and fibula involving the right knee joint. I indicated that there was a separate injury to the right knee joint, with avulsion of the patella attachment of the ligamentum patellae but his right knee joint is still to be assessed according to the Injury Model and not according to the Loss of Motion Model. The probabilities are that he has not developed severe post traumatic arthritis in his right knee joint at this time, but no x-rays are available for reassessment as to whether there has been loss of chondral lining and cartilage interval in the right knee joint. Fortunately he has not developed reoccurrence of infection.
The prognosis for the injuries is only fair, in that there is a high chance that he will develop post traumatic arthritis involving all three compartments of his right knee joint at some time in the future that might require surgical treatment.

2. Whether any operative or other treatment is required.
At this stage no further treatment is required but, as indicated, in time he could require a total knee replacement arthroplasty should he develop bone upon bone severe post traumatic arthritis involving all three compartments in his right knee joint. To date there has been no recurrence of infection in the proximal tibia but with knee replacement surgery there is the added risk that the knee replacement surgery might be complicated by the development of recurrence of this infection, as in a sense it always remains dormant and likely to flare should further surgery be performed in the area of the previous osteomyelitis, i.e. total knee replacement surgery.
3.In what way do the injuries interfere in any way with Malcolm Pethybridge’s ability to work?
I believe he is permanently unfit to return to work as a maintenance fitter because of the severe injuries; not only to his right leg in this accident, but also because of the previous injuries to the left leg over twenty years ago, and as indicated in my previous report, in theory he might be fit to teach fitting and turning in a trade school, but no such work is available and he has been on the Disability Support Pension, given by Centrelink, for over one year. This man is highly motivated and should suitable light work, particularly teaching in his trade, become available to him, then he would have no hesitation in accepting that work and come off the Invalid Pension.
4.Do the injuries interfere in any way with Malcolm Pethybridge’s domestic and leisure activities?
Only to a minor degree – he is able to help with the domestic chores and has a positive approach to life.

5. Any other comments you consider relevant.
He is reasonably mobile and able to drive an automatic car. He is legally blind in one eye.

Conclusion and Assessment of Pain and Suffering Damages

Having reviewed the uncontested medical evidence it can be said with some confidence that the Plaintiff’s injuries have unfortunately been severe and long term. Furthermore, they are likely to leave him with a permanent disability which causes constant pain and severely disrupts his day to day living.

He can no longer pursue his leisure activities, and he is totally and permanently unfit to work.

The range of the Plaintiff’s claim for pain and suffering damages pursuant to s.93(17) Transport Accident Act1986 falls between $250,000 and $300,000. An appropriate allowance under this head is towards the upper end of that range, given the severity of the Plaintiff’s injuries. I assess pain and suffering damages at $285,000.

Claim for Loss of Earnings and Future Earning Capacity

The Plaintiff claimed loss of earnings and future earning capacity.

Immediately before the accident on the 14th January, 2006, he had accepted a redundancy package from his then employer Empire Rubber. Tax returns prepared for Mr Pethybridge showed that he earned $58,955 gross income during the 2003-2004 tax year and $55,027 during the 2004-2005 tax year with Empire Rubber, although no break up of his earnings between full-time and overtime was provided in the evidence, and there was no evidence of superannuation contributions paid by his employer.

The Plaintiff pitched his claim for loss of earning capacity on the basis that he was planning to go into the mining industry interstate. Work in the mining industry had the potential to earn him approximately twice the income he had earned as a fitter and turner with Empire Rubber.

It was submitted that Mr Pethybridge had previously experienced working underground with Wattle Gully Gold Mines NL (“Wattle Gully”) between 1981–1985 where he worked as a maintenance fitter. He accepted the package from Empire Rubber because, as he said in his evidence:

I just thought I’d take the package and I had nothing holding me here in Bendigo so I thought I was going to leave Empire Rubber and move into the mining industry, of which I’d worked there before so I’ve got the skills for.

Further:
… my kids had left home, my wife had gone and Empire Rubber was about to be taken over by John Schulz … I actually went to one of the meetings and I thought this is not going to go very good, so it was time for me to go anyway”.[30]

He said that working in the mining industry was attractive to him.[31] He said:
I enjoyed working in the mining industry. They were at that time and still are chasing turner and fitters in the mining industry. They have trouble getting fellows in the mining industry because it’s out in the middle of nowhere and to get single blokes – fellows out there they don’t stay because they want to go back to their wives. I was single so I thought this would suit me down to the ground and I could make quite a bit of money in the mining industry and probably make up a bit of money that my wife had split with me so I thought I’d probably get back to where I was once before.

[30]Transcript p.68.

[31]Transcript p.68.

As part of his redundancy package from Empire Rubber, Mr Pethybridge was offered a course to be conducted in Bendigo TAFE in driving heavy earthmoving equipment. He thought that this would be very useful in the mining industry, because, as he said: “ … the mining industry uses all these machines”.[32] The course was due to take place not long after the accident. He enrolled for training but was forced to cancel the program because of his injuries.
[32]Transcript p.73.

I accept that Mr Pethybridge, between about the time of his redundancy and the time of his accident, had conversations with his partner, Belinda Harvey and his son Jamie Pethybridge, about taking up work in the future in the mining industry. I accept this as evidence of the intentions of Mr Pethybridge to pursue this type of employment pursuant to ss.64(3) and 66A Evidence Act2008 which provide:

64(3)If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by -
(a)that person; or
(b)a person who saw, heard or otherwise perceived the representation being made.

66AThe hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.

Mr Pethybridge called Mr Timothy Sale (“Mr Sale”) to give evidence. Mr Sale was a fitter and turner but was younger than Mr Pethybridge, being a 41 year old man. He was well built and displayed no obvious health problems. He too worked at Empire Rubber in Bendigo but left without being offered a redundancy package. He then worked for a number of mining enterprises in remote locations in Western Australia. While working for a company called BGC he earned a gross salary of $125,000.

The Plaintiff also called Mr Sasha Cust (“Mr Cust”) to give evidence. Mr Cust was a 37 year old man in good health. He had two children from a second marriage aged three and a half and seven months. From December 2009 he was made the operations manager of UME based in Bendigo. He earned $120,000 per annum together with fringe benefits which included a car. In a management role, he was involved in administrative work requiring paperwork skills which the Plaintiff did not possess. He said that when he started in the mining industry the normal rate for a fitter and turner in the industry varied somewhat between $38 per hour to between $55 to $60 per hour.

Mr Pethybridge also said that he would have continued to work as long as he was fit to do so. He was a skilled worker and he had worked consistently throughout his life. From this it is possible to draw the inference that he could obtain work in his chosen trade if it was available locally.

Defendant’s Submissions

The Defendant did not concede any of the matters contained in the particulars of special damage which have been filed.

It was submitted on behalf of the Defendant in particular that his claim for loss of earnings on the basis that he could have entered the mining industry had not been established. It was said that: as at the date of the accident, the Plaintiff was a 50 year old man about to turn 51; in the month beforehand he had been made redundant; he had been a life long fitter and turner; he had osteoarthritis developing in his left knee and was blind in his left eye, albeit this was something he had learned to compensate for in the course of his employment; he had not worked in the mining industry for 21 years; he had made no application to return to the mining industry; and was not familiar with the company UME which was an organisation in Bendigo which organised mining work for fitters and turners within Victoria and interstate. He had a 76 week redundancy package available to him and was planning to take a break in employment for a period of time.

It was also submitted on behalf of the Defendant that the Plaintiff had significant ties within Bendigo which would have been likely to inhibit any plans he might have had to join the mining industry interstate. He had commenced a serious relationship with Ms Belinda Harvey, a Bendigo woman who had three children by a previous marriage, the youngest of whom was aged 18 years and was living at home with her. Mr Pethybridge was born in Castlemaine but had lived in Bendigo since he was aged 21 years. He had three children of his own and grandchildren, who all lived in the Greater Bendigo area. He had previously worked outside Bendigo for a period of time at Prince Engineering at Geelong. However, on being offered a supervisor’s job, he had not taken it on because of family commitments in Bendigo.

It was submitted that the only work he had done in mining was at Wattle Gulley which was situated in Castlemaine between 1981 and 1985 and that he didn’t apply for further work in the mining industry because he didn’t have a particular interest in it. His interest was in fitting and turning in the manufacturing industry, so it was said.

It was submitted that at no stage had he taken any step towards moving from doing fitting and turning work in the manufacturing industry locally to mining work interstate.

Accordingly, it was submitted that it was highly unlikely that Mr Pethybridge would have taken up work in the mining industry interstate. It was said that the conversations with Ms Harvey and with his son Jamie Pethybridge were statements of mere intention at the time and did not translate into any affirmative action upon which a positive assessment of likelihood could be undertaken. Further, although the Plaintiff may have talked about working in the mining industry, there was no evidence that he had talked about working in the mining industry in Western Australia.

Accordingly, it was submitted on behalf of the Defendant that at best, it may be accepted that if the Plaintiff was to be re-employed following his redundancy, it would have been locally, as a fitter and turner in the non mining sector.

The Defendant also submitted that on the evidence there was no justification for assuming that the Plaintiff would work beyond 60 years of age. This was so in spite of the evidence adduced from Mr Cust that there were examples of people working, for example as a maintenance manager, at the age of 65 years. However, there was no evidence that Mr Pethybridge was qualified to work as a maintenance manager.

Loss of Opportunity

In Malec v J C Hutton Pty Ltd[33] the High Court explained the approach to assessing damages for future or potential events in the two passages which follow:

… earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the plaintiff has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history.[34]
When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle(1970) AC 166, at p 174; Davies v Taylor (1974) AC 207, at pp 212, 219; McIntosh v Williams(1979) 2 NSWLR 543, at pp 550-551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.[35]

[33][1990] 169 CLR 638.

[34]Ibid, 639 per Brennan and Dawson JJ.

[35]Ibid per Deane, Gaudron and McHugh JJ at 642-643.

Subsequently, in Poseidon Ltd & Sellers v Adelaide Petroleum NL,[36] the High Court said:

In Malec v JC Hutton, this court drew a distinction between, on the one hand, proof of historical facts – what has happened – and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category but not to the second, particularly when it is necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages.

[36](1994) 179 CLR 332, 350.

Then in Seltsam Pty Ltd v Ghaleb[37] the New South Wales Court of Appeal (Ipp JA, with whom Mason P agreed) summarised the effect of Malec in the following terms:

(a)In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b)The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c)The court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d)These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.

[37][2005] NSWCA 208 at 5 [103].

Malec has been consistently applied by this Court in the calculation of future loss in commercial cases[38] and in personal injury cases involving claims for loss of future earning capacity.[39]
[38]See: G W Sinclair & Company Pty Ltd v Cocks [2001] VSCA 47.
[39]See: Caddajin Pty Ltd & Ors v Tasevski [2003] VSCA 19.

Assessment of Loss of Past Earnings and Future Earning Capacity

In my opinion, the prospects of the Plaintiff joining the work force in the mining industry as a fitter and turner on the available evidence are problematic to such a degree that the chance should be regarded as speculative. Accordingly, the chance such that it was, ought to be disregarded in assessing the damages which should be awarded to the Plaintiff.

In arriving at this conclusion I have taken into account the age of the Plaintiff; his physical disabilities as they were prior to the time of the accident, the most significant of which was his permanent blindness in the left eye; the fact that he and his partner had strong domestic, family and social ties to the Bendigo area; the fact that he had not worked in the mining industry for 25 years; and the fact that he had taken no positive step since his redundancy to join the mining industry. Enrolling in the heavy vehicle handling course at TAFE was part of the Plaintiff’s redundancy package and did not in itself indicate a commitment to join the mining industry. Further, the conversations he had with his partner and son about the possibility of him joining the mining industry were inconclusive. No firm plan ever materialised.

There was no evidence led as to any entitlement the Plaintiff may have had to superannuation payments nor was there evidence as to what superannuation payments had been paid to him in the past. Nevertheless, there was no challenge made to the basis of his claim for superannuation, or that an employer is obliged at law to pay 9% of the earnings of an employee towards the employee’s superannuation. Accordingly, I will make the appropriate allowances for past and future earning losses in respect of superannuation.

I have determined that the appropriate award for damages for loss of future earning capacity payable to the Plaintiff should be assessed by applying the following parameters, which would have prevailed, had it not been for the accident:

(a)I assess Mr Pethybridge’s prospects of obtaining further employment in the Bendigo area as a fitter and turner as extremely high, to the point where it would have been a near certainty. He was a skilled tradesman and enjoyed an excellent work record throughout his working life. He was dedicated to his trade and thrived on the work. I have no doubt that, but for the accident, following a spell, the Plaintiff would have rejoined the workforce as a fitter and turner in the Bendigo area and, the usual exigencies accepted, he would have been fully and gainfully employed in this capacity until his retirement;
(b)As a locally employed fitter and turner he would have derived a gross annual salary of $57,000;
(c)Given his pattern of work and his evidence that he would have continued to work for as long as possible, which I accept, it is highly likely that Mr Pethybridge would have worked until he was 65 years; and
(d)Following the accident, the Plaintiff had and continues to have no capacity to earn an income from regular employment whatsoever.

This gives rise to the following calculation of lost past and future earnings:

Loss of past earnings (s.93(10)(a) Transport Accident Act 1986)
1.Assume fitting and turning work in the non-mining sector in the Greater Bendigo region: Gross $57,000 per annum = $1096 gross less tax of $304 = $792 net per week.
(a) 14 July 2007 – 30 June 2008 - 50 weeks at $792 net per week = $39,600
(b) 1 July 2008 – 30 June 2009 - 52 weeks at, say $819 net per week = $42,588
(c)1 July 2009 – 2 March 2010 - 32 weeks at, say $850 net per week = $27,200

Sub – total $109,388

2. Less 10% for Vicissitudes
Loss of past earnings: $98,449

3.        Plus superannuation at 9%: $8,860
Total loss of past earnings: $107,309.
Loss of future earnings:
4.        Multiplier at 6% to Age 65 = 395.5
5.        $850 net per week continued to Age 65 = $850 x 395.5 = $336,175
6.        Less 15% for Vicissitudes = $285,749
Loss of future earnings: $285,749

7. Plus superannuation at 9%: $25,717

Total loss of future earnings: $311,466.

Conclusion and Orders

By way of conclusion the pain and suffering damages pursuant to s.93(17) of the Transport Accident Act1986 which should be awarded to the Plaintiff amount to $285,000 and his damages for loss of past earnings and future earning capacity total $418,775.

I will hear counsel on the form of the orders which should be made.

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DESCRIPTION	TABLE	% IMPAIRMENT
1.0 RIGHT LEG	Table 64 3/85	10% whole person
1.1 Supracondylar fracture of femur, united with 10% of valgus	Table 64 3/85	5% whole person
1.3 Gross patello-femoral crepitus with subluxation	Table 64 3/85 (not applicable, as right knee joint is being assessed by the Loss of Motion Model)	3% whole person
1.4 Right ankle Mild loss of movements	Table 42 3/78	3% whole person
1.5 Right hindfoot Mild loss of movements	Table 43 3/78	1% whole person
1.6 Right knee joint Moderate loss of motion	Table 1.41 3/78	8% whole person
2.0 SCARRING – right leg Gross scarring with numb patches between scars	Table 2 13/280 Class 1	2% whole person
3.0 RIGHT HAND Full range of movements, all joint of right hand – in particular, right middle finger	Figs 19,21,23 3/31 – 3/34 incl.	0% right upper extremity

[2010] VSC 90

26 MARCH 2010