Potts v Frost

[2011] TASSC 55

[2011] TASSC 55

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Potts v Frost [2011] TASSC 55
PARTIES:	POTTS, Joshua Andrew
v
FROST, Darren Stephen Ian
FILE NO:	219/2002
DELIVERED ON:	5 October 2011
DELIVERED AT:	Hobart
HEARING DATE:	15 – 19, 22 - 25 November, 2, 7 December 2010
JUDGMENT OF:	Porter J
CATCHWORDS:

Torts – Negligence – Road accident cases – Actions for negligence – Res ipsa loquitur – Motor cycle ran off roadway at a corner – Rider and pillion passenger both seriously injured with no recollection of accident – Inference of negligent riding drawn from circumstances.

Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; Lafranchi v Transport Accident Commission
(2006) 14 VR 359, applied.
Knott v Royal Exchange Assurance [1955] SASR 33, considered.
Aust Dig Torts [104]

Torts – Negligence – Contributory negligence – Particular cases – Road accident cases – Pillion passenger on

motor cycle – Joyride after rider and passenger drinking alcohol – Warning from friend in course of

journey – Passenger contributorily negligent to the extent of 30 per cent.

Holden v Robertson (1987) 6 MVR 468, considered.
Aust Dig Torts [65]

Torts – Negligence – Injuries to passengers – Defences – contributory negligence – Where affected by alcohol

– Pillion passenger on motor cycle – Joyride after rider and passenger drinking alcohol – Warning

from friend in course of journey – Passenger contributorily negligent to the extent of 30 per cent.

Aust Dig Torts [117]

Damages – Measure and remoteness of damages in actions for tort – Personal injuries – Voluntary obligations

– Services rendered with no legal or moral obligation to pay – Applicable principles.

Griffiths v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327, followed.
Aust Dig Damages [34]
Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries

– Other matters – Wilson v McLeay damages – Whether parental attendance at hospital "services relating to attendance" – Whether claim precluded by Common Law (Miscellaneous Actions) Act 1986, s5.

House v Forestry Tasmania [1995] Aust Torts Rep ¶81-331; Torrent v Lancaster [1991] Aust Tort Rep ¶81-
089, followed.
Grimsey v Southern Regional Health Board (1997) 7 Tas R 67, considered.
Aust Dig Damages [37]

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Prevailing standards of general damages – Reference to earlier decisions of the court or other courts for the purpose of establishing appropriate award permitted by Civil Liability Act 2002, s28 – Provision applies even though cause of action accrued before date of commencement of section.

Rodway v R (1990) 169 CLR 515; Robertson v City of Nunawading [1973] VR 819, applied.
Aust Dig Damages [54]

Damages – Particular awards of general damages – Tasmania – 18 year old male – 27 at trial – Incomplete

paraplegia – Non-economic loss of $180,000 – Total award of $1,840,335 after reduction of 30 per

cent for contributory negligence.

Aust Dig Damages [61]

REPRESENTATION:

Counsel:

Plaintiff:	D J Gunson SC and C H Hobbs
Defendant:	K E Read

Solicitors:

Plaintiff:	Ware & Partners
Defendant:	Dobson Mitchell & Allport

Judgment Number: Number of paragraphs:	[2011] TASSC 55
333

Serial No 55/2011 File No 219/2002

JOSHUA ANDREW POTTS v DARREN STEPHEN IAN FROST

REASONS FOR JUDGMENT	PORTER J 5 October 2011
Introduction

1             In January 2002, Joshua Potts, the plaintiff, was 18 years old. He was single and lived with his parents. On one night in that January, at White Beach in southern Tasmania, he went for a ride on a motor cycle with a friend, Darren Frost. Both were in a group of young men staying at a friend's shack. The bike left the roadway and hit a tree. Tragically, both men were very seriously injured. They are both now paraplegics. Neither has any memory of the accident. The plaintiff has sued Mr Frost, alleging that he was the rider and that he was negligent in the riding of the motor cycle. Mr Frost claims that, in the event of findings that he was the rider and that accordingly the plaintiff was the pillion passenger, the plaintiff was contributorily negligent.

2             For the reasons which follow, I find that the plaintiff was the pillion passenger and that the defendant was negligent in the way in which he rode the motor cycle. This caused the plaintiff injury. The defendant is liable to pay damages to the plaintiff. I adjudge that those damages should be reduced by thirty per cent for the plaintiff's contributory negligence. Taking into account that reduction, I award damages in the sum of $1,840,335.

The accident

3             The accident happened on Tuesday 8 January 2002. It occurred late in the evening; the time is roughly estimated to be about 11pm. Police arrived at the scene at 12.45am on 9 January. The location of the accident was White Beach Road which generally runs along the foreshore of White Beach, and very approximately in a north/south direction; more nor easterly/south westerly than anything. At the point of the accident the road is flat with the bitumen surface being approximately 11 metres in width. A short distance from the accident scene, Lagoon Road forms a "T" intersection with White Beach Road, running in from the east.

4             The evidence suggests that immediately before the accident, the motor cycle was travelling from south to north. The motor cycle and the two men were found near a tree down a vegetated embankment, on the western, or beach, side of the road. They were a little under 20 metres past the apex of a right hand bend, following a relatively straight line from the line of the roadway leading up to the corner. The evidence suggests that the motor cycle was travelling on the left hand side of the roadway, with the rider failing to negotiate the right hand turn with the cycle running off the roadway in a straight line, and colliding with the tree. I will come back to greater detail of the accident scene and the location of the motor cycle and the two men.

The plaintiff's evidence

5             On 7 January 2002 the plaintiff went to stay with friends at a shack at 30 Lagoon Road White Beach. The shack was owned by the father of one of the friends, Aaron Stirpen. Four young men were staying at the shack. In addition to the plaintiff and Mr Stirpen, Adam Bates and the defendant were also there. The defendant is about eight years older than the plaintiff. The four had played soccer together in the same team, and the purpose of staying at the shack was a "sort of team bonding"; a period of "relaxation before getting into pre-season training".

6             The plaintiff drove himself to the shack. The defendant went there on his motor cycle. The plaintiff said that he had known the defendant for a little over a year. In that time the plaintiff had not

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seen him drive a car, only the bike. In the time he had known the defendant, he had only seen one other person using the defendant's motor cycle. That was just before soccer training and the defendant allowed the other person to ride the bike on the grass.

7             The plaintiff had a motor vehicle licence but not a motor cycle licence, and had never held a motor cycle learner's licence. He said that he did not really know how a motor cycle operated other than a vague idea of the accelerator and brake being on the handles. He had no idea about the clutch or gears. He had had some experience riding as a pillion passenger. When he was about 13, he rode on a motor cycle with his father. There were not very many times when this happened and they involved short trips.

8             The plaintiff arrived at the shack at about lunch time. The group went to the beach in the afternoon, and after going back to the shack, then drove the short distance to Nubeena where they bought a carton of beer. This was early in the evening. Later the four set about drinking the beer. The played a "drinking game". This was described as follows:

"We played a game which is the first time I'd played it, but where we all just sat around and we had little shot glasses of – empty shot glasses and we'd fill it with beer and then you would drink 30 mils, and then a minute later you would have another 30 mils, and then another minute later you would have another 30 mils, and the idea is to get to a hundred and be a 100 club, but –".

9             The plaintiff said it was the first time he had played this game. He went to bed fairly late. He said he got to the 98th shot, went into the bathroom and "was unwell". He thinks that it was about 1am when he went to bed. He has a clear recollection of getting into bed and zipping up the sleeping bag. That is his last recollection. As noted, he has no memory at all of anything which occurred after he went to bed in the early hours of 8 January, and no recollection at all until he was in the Austin Hospital in Melbourne. He was in the Royal Hobart Hospital for two days and was taken to the Austin Hospital on 11 January 2002.

10           As both men sustained very serious injuries of a similar nature, they were both transferred to the Austin Hospital in Melbourne. Both men were later transferred to the Royal Talbot Rehabilitation Centre, the defendant being the first one transferred there. The plaintiff gave evidence of a very short and inconsequential conversation just before the defendant was moved. However the two spoke whilst at the Royal Talbot. Just before this conversation, the plaintiff had been told that the Motor Accidents Insurance Board ("the MAIB") was asserting that he was at the controls of the motor cycle. When he spoke to the defendant, the defendant said that it was amazing that their injuries were so similar; that it was like someone had attacked them with a baseball bat. The plaintiff said that he then told the defendant "the MAIB reckon I was driving". The defendant is alleged to have said that there was no way that he would have let the plaintiff ride the bike, especially if it was not on grass, and that he would never get on the back of it with the plaintiff. The plaintiff was not challenged in cross- examination about this conversation, nor asked about it at all.

The evidence of Adam Bates

11           Mr Bates said that he has known the plaintiff for about 10 years, and the defendant for possibly 15 years. Mr Bates knew that in early 2002 the defendant had a Yamaha motor cycle and had been riding that bike for about two to three years. Mr Bates had not ever seen the defendant with a pillion passenger on the bike.

12           On 4 January 2002 he had gone with Mr Stirpen to Mr Stirpen's father's shack at Lagoon Road Nubeena. He said that a few days later the plaintiff had come to the shack in his own vehicle. The defendant had also come to the shack on his bike, for which there was no spare helmet.

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13           On Monday 7 January, it being a rainy day, the four men stayed inside all day entertaining themselves by playing card games and the like. During the course of that day they all drank alcohol. It was still raining the next day, and they did the same thing except for a trip to the Nubeena bottle shop. He said that a carton of beer in stubbies was purchased and taken back to the shack. (I think I am entitled to note that there are 24 stubbies in an ordinary carton.) It was some time in the afternoon when they bought the beer, and that they had started to drink it when they got back to the shack. They played cards and drank the beer. It continued to rain mostly through the night as it had done through the day. In cross-examination, Mr Bates said that there were three who were drinking the beer from the carton. They were the plaintiff, the defendant, and himself. The carton was shared about equally and the entirety of it had been consumed before the plaintiff and the defendant left on the bike.

14           Mr Bates does not remember any discussion about anybody going for a ride on the defendant's bike, but he saw the plaintiff and the defendant leave the shack. At this stage it was dark; he thinks it was late evening but does not remember the time. When the two left the shack on the motor cycle, the defendant was riding it, with the plaintiff on the back. Neither was wearing a helmet. Mr Bates got the keys to the plaintiff's motor car, got into that car, and attempted to follow the two on the bike. He agreed that as far as he knew the ride was nothing more than a joy ride.

15           He was able to follow them left from Lagoon Road onto White Beach Road. He continued to follow the tail lights of the motor cycle. When asked why he followed them, he said: "Just an instinct that it was safer to be – it just felt wrong, no helmets, no – basically no safety gear, just shorts and a tee shirt.… [I] just wanted to be there, just in case."

16           At the time of the accident White Beach Road followed the foreshore to where there was a creek. The road then took a sharp left turn up to a where a bridge crossed the creek. There was a small parking area where the road took the sharp turn to the left. (There is now a bridge across the creek at that point.) Mr Bates said he caught up to the pair just before the bend at a time when the bike was stationary on the left hand side of the road. He said that he was not sure but he thought he pulled up also on the left hand side. He spoke to the two men on the bike. He "suggested to them that they should head back to the shack". He felt that "everything was unsafe." He said that they both agreed and turned around on their bike and started to head back in a northerly direction towards the shack. At this time the defendant was the rider. By the time Mr Bates did a three point turn in the vehicle, the bike was out of his sight and he could not see them at all.

17           He drove along White Beach Road and then Lagoon Road to the shack which took him about a minute or two. The bike was not there when he returned. He and Mr Stirpen then got into Mr Stirpen's vehicle and went looking for the two men. He said that instead of turning left, or south, on White Beach Road, they went in the other direction. Not finding anything, they went back along White Beach Road, and returned to the shack. The plaintiff and the defendant still not being there, they set off again, this time turning left onto White Beach Road from Lagoon Road, effectively retracing Mr Bates' earlier trip in that direction.

18           As they were going south, Mr Stirpen remarked on a red reflection in his rear vision mirror, and they immediately stopped. Mr Bates said he jumped out of the car straight away and went down to a light which he saw in the bushes. The bike was on its side facing in a northerly direction and the two men were about half a metre above the bike (that is, closer to the road), facing the same direction; "Like the bike had just basically fell over and they just fell off and they were just laying there." The defendant was closest to the tree, and Mr Bates saw that both men were injured. The evidence shows that the accident site is 1.1 km from the shack.

19   By reference to police photographs, Mr Bates described the scene as follows:

• the motor cycle was lying on its right hand side;

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• both men were a short distance from the bike but "it kind of looked like they were sitting on the bike, but not actually sitting on the bike" – the legs of both men being the closest parts of their bodies to the bike;

• both men were lying on their right sides,

• the defendant was closest to the handle bars facing the same direction;

• the plaintiff was behind the defendant, also facing in the same direction.

20   I accept Mr Bates' evidence, there being no reason to doubt its reliability.

Investigation of the circumstances of the accident

21           Constable Darren Leary was on duty at the time and was called to go the scene of the accident. For the purposes of his evidence, Constable Leary's qualifications and experience were explored. For the five years before December 2003, he was attached to the Accident Investigation Branch. He completed a course in accident investigation and reconstruction. In that role he had attended about 270 fatal and serious accidents. He had an additional two years attached to a district traffic section, during which he attended other serious accidents. He said that he had been a "hobby" motor cycle rider before completing a qualification course to become a police motor cycle rider. That training was in about 1995 and he had been a police motor cycle officer for about seven to eight years, which I assume coincided with his attachment to a traffic section.

22           There was nobody at the scene when Constable Leary arrived. It was, of course, dark. He said that the bike was not visible from the road when heading in a southerly direction, and that it was difficult to see it down over the bank in the debris. The bike was in the area of the tree between the roadway and the beach, facing in a north easterly direction. He saw a mark on the tree which he thought was where the bike had hit it, as it appeared fresh.

23           Constable Leary gave evidence of a mark starting just in the gravel verge of the beach side of the roadway which, he said, showed the direction of the bike in the path to the tree. He attributed the mark to the wheels of the bike, although he went on to explain that it would have occurred as a "result of the transferral brakes from front to rear wheel, because you actually put more weight onto the front brakes as you actually apply the brakes, so …" [sic]. This was further explored as follows:

"You said the mark on the road is consistent with braking of the motor cycle, and did you say something about the load being transferred to the front wheel?....Yeah, it just shows the path that the bike's gone and it just shows there has been a clear transfer – the weight's transferred from approximately – I'd say the rear wheel to the front wheel – not that it's actually locked the bike up, but it's just a transfer of weight from rear to front because of the force."

24           Because of his experience, I accept Constable Leary's evidence as to theses matters. He said that the mark was about 6.2 metres in length, running from the gravel verge to a grass verge. From that point, there was a further 17.8 metres through grass and undergrowth to what he thought to be the point of impact with the tree. A plan of the roadway and mark, hand drawn by him, was tendered in evidence. It is convenient if I attach that exhibit to these reasons as Annexure "A". Although not purporting to be to scale, it was not challenged as a reasonably accurate depiction of the mark as it related to the roadway.

25           Constable Leary's traffic accident report was also tendered. From this, and from his evidence,

it appears that there was a speed limit of 60kmh at that point on the roadway. There was no street
lighting at the corner. As can be seen from the sketch, the front of the bike is noted as being
24 centimetres from the tree. It is not perfectly clear from the sketch, but the photographs tendered

show that the length of the bike was virtually at right angles to the immediate line of the roadway and

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slightly to the north of the tree. Constable Leary's conclusions were set out in the "Brief Description"
part of the accident report as follows:

"Unit 1 travelling in NE [direction] towards Lagoon Rd. Travelling into a right hand sweeping corner the driver of Unit 1 has lost control attempting to negotiate the corner and has travelled down through the scrub & collided with a tree."

26           Constable Leary took the view that the defendant was riding the motor cycle, but this view was based on the information which he had obtained from Mr Bates. No doubt this statement included a reference to the last sighting by Mr Bates of the motor cycle after he had suggested the two return to the shack.

27           In cross-examination, Constable Leary agreed that he was not able to reach any conclusion as to the cause of the accident: "It was inconclusive". He agreed that there were some possible causes that had occurred to him. The first was that the pillion passenger changed his position on the bike which, he agreed, could have an effect on both the driver and the bike itself. He explained this as follows:

"Normally, if you are coming into a corner you use the pillion passenger's weight to help you stabilize the bike, and if all of a sudden the pillion passenger sits upright or comes up out of the aerodynamics of the bike that can upset the structure of the motor cycle and it can cause you know the bike to just react a little bit differently."

28          He also agreed that a sudden application of the front brake "by reason of, for example, the rider suddenly seeing some wildlife in front of him or another vehicle" was a possible cause.

29           There is the aspect of the defendant's blood alcohol level. Apparently at the Royal Hobart Hospital, at 2.41am on 9 January 2002, a sample of blood was taken from the defendant for analysis. A certificate under the Road Safety (Alcohol and Drugs) Act shows that the analysis of the sample showed a nil concentration of alcohol in the defendant's blood. There was no evidence as to what this may have meant in terms of any blood alcohol level at the time of the accident, either in terms of metabolism between then and the time of the taking of the sample, nor any variations which may occur after the taking of the sample. These proceedings do not have the benefit of the presumptions which exist under the Act. Clearly though, the defendant had been drinking in a period not too distant from the accident. No doubt, although Mr Bates did not specifically put it this way, that was a factor in creating his concerns.

30           The last thing that needs to be mentioned in this section is a report of Transport Inspector John Wilson of the Department of Infrastructure, Energy and Resources, dated 30 January 2002. In that report, he sets out the detail of his examination of the bike. He states that prior to, and at the time of impact, the vehicle was in a roadworthy condition. His inspection revealed nothing that could have caused or contributed to the accident.

Who was at the controls?

31           The matter is in issue on the pleadings, but as Mr Read properly conceded on behalf of the defendant, the evidence points to the strong probability that the defendant was the rider. For the following reasons, I am satisfied that the plaintiff was a pillion passenger, and that the defendant was at the controls

32           First, there is the distance from the point where Mr Bates last saw the pair on the bike (with the plaintiff as passenger) and the place of the accident. This is about 200 metres or so. The time of travel between the two points would have been minimal. It is highly unlikely that in the time and distance involved, the plaintiff and the defendant swapped places on the bike. The only alternative scenario is that they rode past the point of the accident, travelled to some other part of White Beach,

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returned to a point to the south of the accident site, and returned along that road, with the plaintiff at
some point having taken over the controls. And this, all the while, evading the searching friends.

33           There are a number of reasons why Mr Bates would not have seen the two men and the bike after the accident when following them after his advice to return. The bike and the men were down an embankment in undergrowth. The area was not well lit. Mr Bates was not looking for them, and would not have been expecting to see them at that point.

34           The plaintiff referred me to a number of cases in which the so called "presumption of continuance" is referred to. A presumption that a person seen driving a motor vehicle shortly before an accident may be presumed to be driving at the time is not, in truth, a presumption. It is matter of drawing an inference. It is, as Dixon J said in Axon v Axon (1937) 59 CLR 395 at 405, "but a deduction from probabilities and must always depend on the accompanying facts". See also Carian v Elton [2000] NSWCA 175 at [28]. I have explained where I see the probabilities lie.

35           Next, there may be some dangers associated with acting in the absence of expert evidence on the evidence of the respective locations of the plaintiff, the defendant, the bike and the tree. However, this evidence is in my view far more consistent with the plaintiff having been the pillion passenger, than the rider.

36           Lastly, the evidence of the lack of experience on the part of the plaintiff in riding a motor cycle, and the attitude of the defendant to the plaintiff riding his motor cycle as shown by the statement made by him at Royal Talbot, add to the probabilities being in favour of the plaintiff being the passenger.

Was the defendant negligent?

37   The particulars of negligence alleged are as follows. It is alleged that he:

"(a)	failed to keep adequate proper or sufficient lookout;
(b)	failed to properly negotiate a corner on White Beach Road thereby causing the motor cycle to leave the roadway and collide with a tree;
(c)	failed to stop, slow down, swerve or otherwise manoeuvre his motor cycle to avoid a collision with a tree;
(d)	rode the motor cycle at a speed that was excessive in the circumstances;
(e)	failed to brake or brake the motor cycle sufficiently or in time or manner so as to avoid running off the roadway and colliding with a tree; and
(f)	failed to so control manage and steer the motor cycle so as to avoid running off the roadway and colliding with a tree."

38          In addition, although not pleaded, as to which there is no requirement, the plaintiff relies on the principle of res ipsa loquitur.

39           The plaintiff says that all of the particulars of negligence have been made out, but that in any event the inference of negligence can be drawn from the fact the defendant simply failed to take a slight bend and ran off the road into the tree. The bitumen surface of the road was good and was flat in its relevant section.

40           The defendant submits that it is nothing more than speculation as to what caused the bike to leave the roadway, and that as the plaintiff has not established a cause he therefore cannot prove negligence. Further, the defendant says that the principle of res ipsa loquitur has no application because the fact of the bike leaving a roadway and striking a tree is not an occurrence of such a kind that in ordinary human experience would not occur without negligence on the part of the rider.

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41           As to the first part of the submission, reliance was placed on Constable Leary's evidence which I have set out above at [27] and [28]. Possible causes of the accident included the plaintiff suddenly changing his position on the bike causing an imbalance, and any sudden application of the front brake occasioned by an emergency such as encountering wildlife or another vehicle in front of the bike.

42          As to the res ipsa loquitur principle, Mr Read relied on passages from Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, and Lafranchi v Transport Accident Commission (2006) 14 VR 359. He stressed that in Schellenberg, Gleeson CJ and McHugh J at [25] restated the operation of the principle as involving three propositions, the second of which is that a plaintiff may rely on it where the tribunal of fact concludes that the occurrence was of such a kind that it does not ordinarily occur without negligence. (The other two propositions are that there is an absence of explanation of the occurrence which caused the injury, and that the instrument or agency which caused the injury was under the control of the defendant.) I would point out that along with Gaudron and Kirby JJ, their Honours were at pains to stress that the principle was not a rule of law but merely an application of a permissible reasoning process; a description of a mode of inferential reasoning: see [22] – [24], and Gaudron J at [69]; Kirby J at [105] and [121]. At [31] Gleeson CJ and McHugh J said:

"[W]hile res ipsa loquitur may ameliorate the difficulties that arise from a lack of evidence as to the specific cause of an accident, the inference to which it gives rise is merely a conclusion that is derived by the trier of fact from all the circumstances of the occurrence. When it applies, the trier of fact may conclude that the defendant has been negligent although the plaintiff has not particularised a specific claim in negligence or adduced evidence of the cause of the accident. But it does nothing more."

43           In Lafranchi a car had left a roadway and hit a pole. Expert evidence was given on both sides. The issue of the defendant's negligence was whether there had been a sudden unexpected loss of consciousness. At [33] Maxwell P and Neave JA (Mandie AJA agreeing), after referring to a number of cases, said that the decisions cited "do not establish that the RIL principle applies whenever a vehicle crosses to the wrong side of the road, or veers off the road, or in some other way 'ends up where it ought not to be'. This proposition was advanced as if it were a principle of law, such that any judge dealing with a motor vehicle accident of this kind would be constrained by authority to conclude that the principle applied" [original emphasis].

44           Their Honours went on to say that the cases decided no such thing; what they did show was that "in a case where a vehicle ends up off the road, on the wrong side of the road, the RIL principle can apply". Their Honours agreed with the proposition that "the mere fact of losing control of a vehicle can establish negligence on the driver's part — but (it follows) it will not necessarily do so … Where it applies, the RIL principle assists in the proof of matters of fact."

45           In Lafranchi, the Court held that on the expert evidence, it was shown that accidents of the type under consideration might or might not involve negligence. That being so, the occurrence had not been shown to be of the required kind, and the principle had no application. It is this aspect of Lafranchi upon which the defendant particularly relies. The defendant says that the accident might have involved negligence, but that it may not. However, the evidence in that case was not of evasive action or braking, and the expert opinion was that crashes of that type were characteristically caused by anything ranging from simple distraction to catastrophic loss of consciousness.

46          A useful starting point for the resolution of the issue is the observations of Reid J in Knott v Royal Exchange Assurance [1955] SASR 33, which remain pertinent. At 38 – 39 his Honour said:

"Collisions between vehicles, and between vehicles and pedestrians are so frequent, and the circumstances under which they occur exhibit such a diversity of human conduct, that usually no safe ground for presuming negligence is to be found in the

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mere happening of an accident occasioned in either of those ways. On the other hand, if a motor car which is being driven along a road suddenly overturns or runs off the road, there is at least ground for saying that the occurrence is unusual, and evidence of negligence may be found in its happening much more readily in the other classes of cases."

47           In this case, the line of travel as shown by the braking mark which commences at the gravel verge is of particular significance. The mark itself commences at a point just before the apex of the corner. Expert evidence is not required to conclude that, allowing for human reaction and mechanical response times, the braking action would have occurred a little distance before the commencement of the mark. Following the line of the roadway to the commencement of the mark shows that the rider had commenced to negotiate the corner but ran too wide as the angle of the corner increased, and basically travelled in a continuation of that line of travel towards the tree. The braking occurred just as the bike was leaving the bitumen surface. If the defendant had been forced to take evasive action for whatever reason, a far more sudden divergence from the previous line of travel would be likely. The line of travel as shown by markings is likely to have been quite different. I think it is more likely that the angle of the line of departure from the roadway is likely to have been more acute.

48           That, at least, is sufficient to put the case in a category of the kind of occurrence which does not ordinarily occur without negligence. That evidence makes the inference of negligence a more likely explanation. It is more consistent with negligence than with an innocent cause. Whatever the precise cause of the defendant running off the roadway, whether it be inattention, speed, or merely a failure to properly control the bike, or any combination, I am satisfied that it was negligently managed and that the defendant's negligence caused the accident. I think it is most likely to have been a combination of speed and inattention. At the least, I am satisfied that particulars of negligence (b), (c), (e) and (f) are made out.

Was the plaintiff contributorily negligent?

49           The first allegation of contributory negligence is that the plaintiff travelled on the bike without wearing a crash helmet so as to unnecessarily expose himself to injury. The principal remaining allegations of contributory negligence are of travelling on the bike when the plaintiff knew or ought to have known that it was unsafe in the circumstances, and of failing to alight from the bike at a time before the accident. The "circumstances" are said to include the consumption of alcohol by both plaintiff and defendant, the nature and state of the road, the purpose of the journey, and the plaintiff's lack of experience as a pillion passenger.

50           I will deal firstly with the discrete ground of the failure to wear a helmet. It is an allegation of failure to do something which may have lessened the severity of injury. It was an issue on which the defendant called no evidence and was not one which was enthusiastically pursued in closing submissions. The defendant needs to establish that there is a causative link between the failure to wear a helmet and a particular injury, or a particular degree of severity of injury. In addition to the spinal injury, the plaintiff suffered a closed head injury. External head injuries were predominantly to his face. There is evidence of some cognitive deficits arising from the head injury. A clinical psychologist, Dr Jennifer Nichols, described different mechanisms of closed head injury in which the brain hits the front and back of the skull interior, or rotates on its stem. This causes bruising and possibly long term cognitive deficits. Dr Nichols said that such deficits in the plaintiff could be explained by a closed head injury.

51           In the defendant's case, some documents were tendered but these were not of a medical

nature, and no witnesses were called. After the defendant's case had closed, the plaintiff sought to

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tender a number of expert statements and reports which had been served by the defendant's solicitors.1 One of the proofs tendered was from a consultant rehabilitation physician, Dr David Burke. The evidence of both he and Dr Nichols is to the effect that whilst the wearing of a helmet may possibly have prevented or made less serious the closed head injury, it is not possible to be at all precise, and it is quite likely that the plaintiff would have suffered the same degree of injury in any event. This type of issue was discussed in Taylor v Scriven [2007] WASCA 208 at [13] – [15], in which the evidence was that a securely protected head could be less vulnerable to injury than a lesser protected head in a high velocity impact, and that the plaintiff's head injuries were of the type seen with persons wearing securely fastened helmets. Wheeler JA (Pullin and Buss JJA agreeing) at [15] said that on the evidence, although it was possible that the plaintiff's injuries would have been reduced if the helmet had been secured, there was no evidence from which it was open to conclude that such an outcome was probable. Similarly, on the evidence in this case, I am not able to conclude that it is more likely than not that the head injury would not have been caused or would have been of less severity, had the plaintiff been wearing a helmet.

52           As to the remaining allegations, the defendant argues that the journey undertaken by the pair was no more than a joy ride; other than that, it had no purpose. On the evidence of both the plaintiff and of Mr Bates as to what occurred the night before, and of Mr Bates as to the particular night, I am satisfied that both the plaintiff and the defendant had been drinking in a period not too long before they set off. Assuming the carton contained 24 stubbies and that the completed carton had been shared equally between three, each of the plaintiff and the defendant had consumed eight stubbies. Mr Bates' evidence would allow a finding to that specific effect, but at the least, I am satisfied that the defendant had drunk more than a negligible amount; at least several stubbies. There was no evidence about how either the plaintiff or the defendant appeared to be just before they set off, and there was no expert evidence as to the effects of drinking. However, in terms of contributory negligence, I think that a reasonable person would or ought be aware that someone who has had at least several drinks of alcohol may be less well equipped to manage a motor cycle on roadway with a pillion passenger on board, than one who has not. In this context, account should be taken of the nature of the roads around White Beach, the time of day and the weather. All were factors known to the plaintiff.

53           I think of considerable importance in looking at this question, is the reaction of Mr Bates. His immediate reaction was that the two setting off on the bike was "wrong". He specifically mentioned the lack of safety gear, but he also said that he felt "everything was unsafe". His feelings were strong enough to prompt him to immediately follow the pair in the plaintiff's motor vehicle, even though he himself had been drinking. Having caught up with them he told them to return to the shack. Although there was no warning in any specific terms, Mr Bates' action ought to have alerted the plaintiff to the risks of what he and the defendant were doing. This sort of situation was considered in Holden v Robertson (1987) 6 MVR 468. A warning had been given to a prospective pillion passenger by an off-duty police officer that he and the rider should not be riding the motor cycle because they had been drinking. At 476 Asche CJ said that "once the constable had spoken the plaintiff was on notice and should have more closely examined the defendant or more carefully thought about continuing with him and should not have continued. In doing so he was careless of his own safety".

1 Rule 517 provides that a party may put in evidence against another party a statement served on him or her by that party in accordance with r516. Mr Gunson SC told me that he anticipated that the evidence would be called by the defendant and did not know otherwise until the defendant's case had closed. Mr Read argued that such a tender had to be made in the plaintiff's own case, and could not be made after a defendant's case had closed. I ruled that r517 was wide enough in its terms to contemplate the precise situation which had arisen. That is, a party may tender evidence pursuant to the rule after their case has closed, subject only to the operation of the provisions of the Evidence Act 2001. I said that if I was wrong about that, the application could be properly treated as one to re-open the plaintiff's case. The basis of the application would be a misunderstanding of law on the part of counsel as to the operation of the rule, and a misapprehension that the evidence was to be called by the defendant. I said that as the defendant specifically disavowed any suggestion of prejudice, leave to re-open should be granted, if it were necessary. The tender was sought pursuant to the Supreme Court Rules 2000, r517, and I ruled them to be admissible on that basis.

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54           After being spoken to by Mr Bates, the plaintiff could have quite easily walked back to the shack. A less safe option, but perhaps one less unsafe than continuing on with the defendant, was to get in the car with Mr Bates. In any event, I am of the opinion that a person of ordinary prudence would not have gone riding on the motor cycle with the defendant in all of the circumstances. That is more acutely so after Mr Bates had spoken to the pair. The plaintiff has unreasonably exposed himself to a risk of injury. The risk was in part caused by the reduced capabilities of the defendant because he had been drinking. I find that the plaintiff was in breach of the duty to take care of himself and thereby contributed to his injuries.

55           What needs to be considered are the comparative degrees of responsibility. The exercise is to assess the degree of departure from the standard of care of the reasonable person, and of the relevant importance of the acts of the parties in causing the damage. I have expressed my view as to the likely immediate cause of the bike leaving the roadway. On the basis that the plaintiff was negligent in going on, and continuing with the ride with the defendant in the circumstances, and making, as best one can, a comparison of the respective departures from the relevant duties of care, I think it is just as between the parties that the plaintiff be held liable for his own injuries to the extent of 30 per cent.

Damages

56           I will set out the material relevant to the plaintiff's pre-accident state, followed by an overview of the injuries suffered, their immediate treatment and broad long term consequences. I will then deal with the plaintiff's post-accident state and a number of issues which deal with the assessment process in the broad. All of the facts stated are my findings unless it is otherwise explicitly or impliedly clear. After this section I will turn to the individual heads of damages claimed.

The plaintiff before the accident

57           The plaintiff's date of birth is 13 October 1983. Up until about grade 8 he lived with his parents and younger sister in Canberra before moving to Hobart. He finished year 12 and had enrolled in an economics degree course at the University of Tasmania. He was due to start at the commencement of the academic year in 2002, but the accident intervened. I will later discuss greater detail of his performance in college subjects.

58           Both his parents had been in the RAAF, his father having been in that service for about 20 years. The plaintiff said that since he was a child he was interested in joining the defence force in one capacity or another. In September 2001, he made application to join the Australian Defence Force Academy (ADFA) in Canberra with a view to being an Army helicopter pilot. At the time he was on medication for acne. He said that he was told his application would not be considered until he had not been using the medication for a period of six months. He decided to stay on the medication. Although he enrolled in the economics degree course, he still had a desire to become an Army officer. He said he wanted to be a pilot, but if that was not an option then he would have been happy "doing fairly much any other job". At the beginning of 2002 his intention was to pursue his university education and to apply to join the Army Reserve when he could.

59           Apart from his acne, his health was good and he was physically very active. As previously

mentioned he played soccer, a sport in which he was particularly interested and at which he seemed to
excel. He was playing in senior divisions from a young age, making the A grade men's team on a full
time basis when he was 17, having had some experience in that division from when he was 14. The
season which finished immediately before his accident, was his first full season with the senior team,
he being the second highest goal scorer for the club. He started competing when he was in primary
school. Before moving from Canberra, he and a friend, when they were in their early teens, coached
an under 7s soccer team which he described as one of the highlights of his life thus far. He said he
enjoyed very much looking after them and teaching them how to play soccer. His parents were very

supportive of him in his pursuit of soccer. When asked whether he intended to continue playing into

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the future, he said that it was his dream to play: "I've always played soccer, it's always been my one
love and ever since I was five, and I just play it all the time, …".

60           In addition, he refereed soccer games from about the age of 14, often doing several games at a weekend, as well as playing in a game. He also represented his college in athletic carnivals in the two years he was there. The triple jump was his speciality. In addition, he played badminton in a mixed college team in years 11 and 12. He said that when he was at school he had a lot of female friends; he was "very social with the other sex", but that he had not had sexual intercourse before the accident. He said he had some good friends, with a circle of male friends, and a circle of female friends who would get together every lunch time and go to parties; "we were all hanging out together". He was asked about his thoughts of getting married. He said:

"It was always – always been, you know, a dream of mine, … that you know one of my – one of my dreams has always been to, you know, get married, have kids and teach them how to play soccer just like – well not like my dad, he couldn't play soccer, he was terrible, but you know, hopefully do that."

An overview of the injuries suffered

61           The plaintiff arrived at the Royal Hobart Hospital at about 2am on 9 January 2002. Many and varied investigatory scans and procedures were carried out. In the ICU he was intubated, ventilated and sedated, catheterised and placed in a drug-induced coma. On 11 January he was transferred by air ambulance to the Austin Hospital in Melbourne. Further diagnostic scans and investigations were undertaken. The predominant injuries were as follows:

• Burst fracture of L1 vertebra.

• Fractures to the T2, 3, 4, 5, 8 and 9 vertebrae.

• Head injury with a fracture at the skull base.

• Multiple rib fractures predominantly to the left.

• Interspinous ligament injury at T – 3, 4 with haematoma and oedema in the cord at that level.

• Haematoma in the spinal cord at T12.

• Multiple facial fractures and soft tissue injuries involving the right and left ethmoidal and frontal sinuses.

• Multiple rib fractures.

• Multiple fractures of the scapula.

62          The treatment he received at the Austin Hospital was extensive, and his time there was a very painful and traumatic one. A tracheotomy was performed on 14 January 2002. On 19 January 2002 corrective facial surgery was performed which involved an open reduction and internal fixation of the various fractures. Titanium plates were inserted above the right eye socket and into both cheekbones, with the jaw being wired. Two days later, he underwent major spinal surgery. This is described as an L1 corpectcomy and T12 – L2 fusion with Kaneda implants, titanium mesh cage and a rib and local bone graft. This involved removing the crushed body of L1 vertebra and replacing it with a titanium mesh cage filled with bone taken from the left tenth rib and the body of the L1 vertebra. T12 and L2 vertebrae were used fused together with a side implant and screwed into place. A postero-lateral T-T5 fusion was also carried out. Screws were placed into the pedicles on each side of the vertebrae and joined on by rods.

63           While those procedures were carried out, a feeding tube was inserted through the abdominal wall into the stomach. On 27 January the plaintiff was moved from ICU to a ward. It was a few days later when the tracheotomy tube was removed and the plaintiff was first able to gain a full

12   No 55/2011

understanding of what had occurred, and to talk to his mother about it. His first reaction was that he was "fucked" because he could not play soccer, although as he explained it in his evidence, "But then that was the least of my worries …". He had a lot of periods when he was depressed after finding out about his condition. He cried a lot and had nightmares.

64           His time at the Austin Hospital until late March 2002, and then at Royal Talbot until coming home on 10 July 2002, involved intensive recuperative and rehabilitative processes. The daily routine at the Royal Talbot consisted of physiotherapy and occupational therapy. Essentially, the training was directed to achieving a high level of independence. Included in the instruction were issues relating to showering, toileting, wheelchair skills, and cooking and other domestic skills.

65          His six months spent at the two hospitals was marked by a number of severe and ongoing complications, the principal of which were:

• a constant bowel infection which caused severe alternating diarrhoea and constipation, requiring him to be frequently washed down, and at one stage requiring 10 days in a dark isolation ward;

• periods of deep depression, exacerbated by the bowel infection, and culminating in a request for nursing staff to "shoot" him;

• severe pain in his right hip leading to extensive investigations for what was suspected to be heterotopic ossification (new bone growth in muscle tissue). This pain persists but is thought to be an imbalance in muscle operation;

• body spasms which involve sudden outward flexing of the legs from the quadricep muscles causing severe pain in the legs and right lower back. This condition persists and is treated with the drug baclofen;

• constant bladder infections due to the indwelling catheter until April 2002. (The plaintiff is unable to urinate without self catheterisation);

• a bad pressure sore on his sacrum, which sore was in excess of the size of a 20 cent piece and which took quite a time to heal;

• bouts of anger and frustration at his inability to perform simple mental tasks posed for occupational therapy purposes.

66           In short summary, the plaintiff is an incomplete mid-level paraplegic, the "incomplete" referring to the fact that he has some sensory function and some motor function in his lower limbs, but not to any great practical effect. He has an acquired brain injury with some cognitive impairment as a result, and with a loss of sense of smell and mostly of taste. He suffers bowel and urinary incontinence and loss of sexual function. The evidence is that his life expectancy has been reduced by approximately 10 per cent. There is potential for physical deterioration and an increase in the levels of functional impairment. He has a full insight into his disabilities and appreciation of the loss which he has suffered.

The plaintiff after the accident - the injuries and their consequences

67           When the plaintiff returned to his home in Lenah Valley, his time was mainly taken up with physiotherapy. He had been introduced to wheelchair tennis at Royal Talbot, and that became a regular part of his regime. Modifications were required to the Lenah Valley home. These included a new bathroom, a new bed and wardrobe, new heating, and carport extension to accommodate the movement of his wheelchair.

68           Although regularly occupied with therapy programs, the plaintiff said that he was bored and

decided to re-enrol for the economics degree course. He started at the University of Tasmania in

2003, but soon struck difficulties. His problems with incontinence frequently led him to be late for

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lectures, and on one occasion, to miss a test. His absence of sense of smell means that he is not able to readily detect when he has fouled himself, and the embarrassment level is high. Furthermore, he found difficulties in maintaining his concentration. He found that he was not able to learn what he studied. He felt isolated and depressed. He managed to survive in the course through to the end of 2005 but was then excluded. After successfully appealing his exclusion, he was reinstated on a reduced workload, but was required to pass a number of subjects in 2006. This he failed to do, and at the end of the first semester in 2006, having lost his motivation, he did not re-enrol. He says that but for his injuries he thinks he would have been able to successfully obtain his degree. He found the facilities for disabled people somewhat lacking, and struggled to cope generally.

69           In 2005, the family moved home to a place in Rosetta where they still live. The plaintiff was having arguments with his father who was significantly suffering from a work-related back injury. They found a house with a self-contained flat underneath in which the plaintiff now lives. His mother does most of his domestic chores for him. He mostly has his evening meal with the family, negotiating a rather tricky course around the front of the house to get there, and a steep descent at the back to return. He wishes to live independently.

70           In December 2007, the plaintiff was able to find employment with a financial institution, having sought the assistance of the Commonwealth Department of Education, Employment and Workplace Relations. He said he was actively playing tennis and needed the money. It was negotiated that he start on a part time basis, but after a few months, he was required to work full time due to a merger with another organisation. He has now completed two TAFE courses, a Certificate II in Business, and a Certificate III in Financial Services. He is still employed on a full time basis, working from 8.30am to 5pm, but would like to reduce his hours.

71           The plaintiff's level of independence is much higher because of his ability to drive. After some initial difficulties with approval from an occupational therapist – which seem to have been resolved by the provision of a report from a neuropsychologist – he was able to obtain the relevant driver's licence. This was about two years after he came home. His pre-accident vehicle was of no use, and he got another vehicle which was modified for his use. That is now of some age and well worn. The family vehicle has also been modified for his use, because of difficulties he was having getting in and out of his own, particularly when manoeuvring his wheelchair tennis equipment.

Present disabilities

72           The incomplete paraplegia means that the plaintiff has full sensation down to his nipples, with patchy sensation to his abdomen. From that point, he describes it as "just pins and needles until about half way down my shins and I can't feel my feet at all". On his back, the patchy sensation starts at about shoulder level. He has some movement in the quadricep muscles in his legs, but nothing of any real effect. He is able to shuffle or fidget around on his seat, which is a little fortunate because the partial feeling in his buttocks means that he gets a burning sensation when he sits all day. Scoliosis is present in his spine, causing him to lean slightly to the left.

73           He has had pressure sores. One developed on his sacrum while he was in the Austin Hospital. Shortly after he returned home, his mother discovered one on his right heel, and in 2008 one developed on his right buttock which he had to ask his mother to investigate and confirm. These sores have to be cleaned and dressed, the last one requiring a few visits to the general practitioner over a period of about a month. The plaintiff said that he checks nearly every day as far as he is able with the use of a mirror.

74           In terms of cognitive deficits, the plaintiff says that when he is under stress and he is required to learn new things, he does not learn as fast as he used to. Previously, he could comprehend things with one reading, but it now requires a lot more work for him. He said that he was not a slow learner, but that is what is now happening. The plaintiff's mother, Mrs Lee Potts, gave evidence that his short

14   No 55/2011

term memory was bad when he was in hospital, and although it had improved somewhat, "it takes him longer – you used to only have to tell Josh something once and that was it; now … he takes a bit longer to remember some things, not everything, but some things."

75           The facial injuries caused the loss of the sense of smell and most of that of taste. He is able to taste things which are strongly salty, spicy or sour, but otherwise if things are bland, he cannot taste them and has no interest in eating them. He misses these abilities, and said that this loss is a lot worse than it seems. He often does not finish meals.

76           I have already mentioned the spasms in the upper part of the backs of his legs. They are a constant part of his life. They occur daily, almost always in the morning, but sometimes at night as well, and they are also less severe. This is notwithstanding that he takes the maximum dose of baclofen. He has had Botox injections and intensive stretching, but the spasms continue. In the morning, the spasms occur when he gets in the shower and is prepared for them. They dissipate after between 5 to 15 seconds. The plaintiff said that his body below the level of the lesion does not seem to sweat and cannot properly self–regulate its temperature; the spasms are even more frequent when it is cold. The cold "really affects" him.

77           As I mentioned before, the plaintiff has to self-catheterise in order to urinate. When and how he does this depends on his intended activity. Ordinarily, he carries out the procedure about four to six times a day, depending on how much he has been drinking. The catheter is inserted and he is able to discharge the urine directly into a toilet. He does not have sufficient feeling to enable him to detect the need to urinate. He gets a sensation like a full stomach, but generally just attempts to judge things. He suffers from urinary incontinence which means that he "leaks" between 20 to 100mls a day, again depending on how much he has been drinking and the number of times he has voided his bladder. This can cause embarrassing wet patches on his clothes and is particularly bad if he is playing tennis without the in-dwelling catheter.

78           An alternative means of urination is by means of an in-dwelling or, as he called it, "a semi- permanent" catheter. It is one which is put in place and connected to a bag which in turn is attached to his leg. This type constantly drains, and it is a question of feeling it to see how full the bag is. He is able to use an "able bodied" toilet to empty the bag. He said that he uses this catheter about once a week, mostly when he is going out with friends, and having a few drinks He also uses one when he is playing wheelchair tennis. There is a surgical procedure available to remedy the urinary incontinence, and which involves the installation of an "artificial sphincter". Essentially, it is an air inflated device which closes off the urethra, and when released allows urine to pass. The plaintiff said that he would like to undergo that procedure. He approached the MAIB for the funds for this procedure, but as his entitlements had expired, it would not accommodate him.

79           Constipation is a continuing problem. He regularly takes Senokot, a brand name for a natural product of the senna herb. The plaintiff has to evacuate his bowels by a direct manual process. This involves him massaging his abdomen and stimulating his rectum by digital penetration using a rubber glove and gel. Ordinarily, he does this every second day, but maintaining a balance between constipation and uncontrollable diarrhoea seems to be a constant battle. He has little feeling for when he needs to evacuate his bowels. By palpation, he can roughly assess, as he put it, "that at some time today either I'm going to have an accident or I've got to go to the bathroom". He said that sometimes he becomes paranoid and feels himself by putting his hand under his buttocks every 20 minutes or so. He finds this to be very embarrassing when he is at work, and often ties to disguise what he is doing as a readjustment of his clothing and the like.

80           When he has diarrhoea he sometimes has bad accidents which result in soiled clothing and he

needs to go home, shower and change. This can happen at any time. If in bed at home during the

night, he enlists his mother's help. Obviously, these incidents can cause significant disruption. On

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one occasion when he was in Melbourne playing tennis, an extremely bad episode of diarrhoea prevented him from going to a dinner, and took a considerable clean-up effort on the part of him and his mother. Mrs Potts gave evidence of three occasions on which she had to rescue him from university after bowel accidents, and two such occasions when he has been working at MyState. There are of course degrees of bowel accidents. The two most extreme events are the evacuation of the faecal matter, and the more extreme form of actual diarrhoea. Mostly, and fortunately as the plaintiff said, the bowel accidents occur at home. With this problem also, there is a surgical procedure available, called an ileostomy. It involves taking the small bowel to an external opening in the abdomen where the contents are collected in a bag attached to the abdominal wall. The bag is simply emptied once or twice a day. He does not presently wish to have this procedure done.

81           The plaintiff is not able to obtain a full erection and to have normal sexual intercourse. Rather than attempt to accurately summarise his evidence as to the situation and his experiences, it is best if I allow him to explain it for himself. His evidence was as follows:

"Can you have sexual intercourse?......Um, my ability to get an erection is gone. I can get a – I can get a semi-erection, but it's not, not useful enough to – to do anything with. It's not – it's not even – it's not hard enough, it's not just – there's no – I just can't, I can't do anything it's that embarrassing. And there's been that many times when I have, you know, met a girl and wanted to go home with her and it's just that embarrassing, I've got to come up with an excuse as to why, you know, she'll invite me home and I've to come up with an excuse as to why that's not a good idea and I'll go home by myself.

Have you tried means by which you can achieve a harder erection? I've tried everything under the sun. I have,… I started off with, you know, the tablets, so I've tried Viagra and Cialis, we tried that, and they had – all that I would get out of that was a semi erection for 24 to 48 hours, it was just no point to it at all. And then I went along and had – after that, … trying every dose of that from the smallest to the highest, we went along to see a guy … at the Royal who's a nurse there who deals with those areas, and he has the injections, or Caverject, and I'm not sure what the other – the other type one that only – so Caverject was no good and I tried from the lowest dose to the highest dose. I had a long partner, this was back early to my accident, I had a long term partner who was very forgiving with me and … I tried every injection from the lowest to the highest and it didn't do it, so the guy even said – put me on this other drug which he said they don't even use in paraplegics anymore because it had the problem of giving people erections for too long so they were having to come into hospital to get rid of them and I had that one and there was still – from the lowest to highest and there was still no effect so then I moved onto what's called the penis pump. So I've used that one with very limited success in that, you know, you get – you get an erection out of it but you get a big – it takes about – it took about forty five minutes to get an erection that way and that time of just pumping the thing and in that time all romance has definitely gone and – and at the end of it you end up with an erection that is blue and red and looks like it's bruised and it's not – not very attractive at all, and then – and then whilst we were having intercourse, … that was all well and good, but within about – it was only about two minutes, if even that, that the ring that was holding all the blood around the penis, because of the motions and the movement it just – it moved and the blood flowed and the erection had gone down to a level that it was no longer sufficient, but it wasn't – it didn't go down far enough that it was – that we were able to get the ring off, so we then spent another thirty minutes trying to get the ring off. So we had like an hour and a half, or an hour and fifteen or whatever it is, and for two minutes of intercourse and so that didn't get tried very often because it was that frustrating and my – my penis looked extremely – looked bruised for the next two, three days and it was just – it didn't look good when I was in the shower at all.

All right, thank you for that. Can you ejaculate?……The irony there, yes, I can, but I can't even get an erection so I don't know how that works, but it's a semi – semi erection and I can, but you know with stimulation, but it's – I don't understand why.

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And do you have any feeling when you ejaculate?……I get – I get some sort of feeling but it's not – it's not the same, it's obviously a different – different feeling, it's – it sends my spasms – I do spasm when I'm doing it and it's not – it's not the most pleasant thing but it's not the most unpleasant either, so it's sort of a – I'm not sure what the feeling is, but –"

82           As to this disability, he has discussed with a urologist an option of a permanent penile implant. This involves an inflatable tube inserted down the side of the penis, with a small balloon-like device in the scrotum. It makes the penis air inflatable. He has expressed an interest in having the procedure but said that he wanted a partner to discuss it with at the relevant time, because it was a serious step and there were some complications. He has not yet discussed the issue with his recently found partner.

83           Not surprisingly, the plaintiff has suffered bouts of depression, and continues to suffer general anxiety and panic attacks. He generally cries more often, saying in evidence that he feels he has lost control of his emotions. He has moments of acute embarrassment, and also moments of annoyance when people ask him what happened, challenge his level of disability, or show a prurient interest in his sex life.

84           In 2003 he took antidepressant medication for a while but found the side effects difficult to deal with. Sometimes he gets worried and distressed, particularly about how things might unfold in the future. For a time he had panic attacks lasting for about 20 or 30 seconds. Those attacks continue, but to a much lesser degree. He has "moments" during which he gets deeply distressed at his loss and cries. He often has "negative thoughts" about embarrassing moments in the past with his incontinence problems, and generally about what the future might hold. He explained this as follows:

"I think about what's going to happen in the future. I think about, you know, what possibly can and can't happen. What, you know, what if such, you know, what if – I just think about the future and I can get just down on that. And I think about what I would have been doing when, you know, there will be some – I'll be like, 'Oh, I would love to have done that', and then the next minute I'll be down. I don't always – I don't always cry but I can get quite, you know, feel – get quite a few feelings of depression and it brings my mood down and that happens, you know, reasonably regularly but I am coping with it at the moment."

85           The plaintiff's body is considerably scarred due to the surgical procedures, although he does not seem to be overly concerned at the disfigurement. The major scar runs from the lower right abdomen at an angle upwards across the left lower rib area and up to a point at about mid-spine level, halfway between his side and the spine itself. There are very obvious suture marks. There is also a vertical surgical scar starting at the base of his neck and finishing just below shoulder blade level straight down the line of the spine.

The domestic situation

86           The plaintiff is able to get himself out of bed in the morning, and by use of the wheelchair,

make his way to the modified shower. He showers whilst seated, puts himself back in the wheelchair
and then dresses himself. The dressing exercise he finds to be extremely difficult. He is able to put
himself into his vehicle, and then dismantles the wheelchair and stows it in the car. This is a rather
arduous process which I saw him perform by way of a view, at his home. When he goes to work, the
reverse wheelchair process happens when he reaches his car park, and of course the reverse two
procedures occur at the end of the working day. He says that he is "just buggered" when he gets
home from work, and normally has a sleep before dinner. His mother cooks his dinner for him, but on
occasions when she is away, he fends for himself. He says however that on those occasions he tends

to sleep when he gets home, eats later, and less well. He goes upstairs for his dinner; if it is raining

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his mother brings the meal to him. The kitchen facilities in the flat are not entirely suitable for people
with his disabilities.

87           When spending time in the flat, the plaintiff needs to be careful about temperature control. He has four panel heaters in order to heat up the entire area. There is a difficulty with his body self- regulating temperature. He is seriously affected by cold. He is generally a lot more uncomfortable when cold, and when he gets cold, he suffers more spasms.

88           His mother helps him when he has soiling accidents through diarrhoea. She does all his washing and makes his bed. There are no laundry facilities in his present flat. The plaintiff gave evidence that he wanted to move out of the flat when financially able to do so. He was asked what issues he thought were important in making him want to move out. He replied:

"The independence. I want privacy from my parents. They're upstairs, they're on their own, but they still – still too close to live to your parents. You know, the – I just want a place of my own. I want to you know look after myself. I just want to be independent and, you know, while I appreciate everything my Mum does for me, I wouldn't – yeah, I do want to do it – go out and live by myself. That's what I've, you know, I've always wanted to do. I didn't see myself at – what am I, 27 – and living at home."

89           There are things which he would be able to do if he lived independently, and things which he could not do. He is capable of looking after himself personally to the extent already discussed. With suitable facilities he would be able to cook and prepare meals. He can look after his feet – for instance clipping toenails – but does suffer minor injuries to his feet. He says these are things for which he should go to a podiatrist "but I don't have time to at the moment".

90           Although the plaintiff said that he could not do normal garden maintenance, he said that he would like to have a house with a little bit of garden so that he had some space between him and the neighbours. He thinks he would struggle putting the rubbish bin out. He cannot do that at his present because of the slope of the driveway. He thinks he would generally struggle with the task. Depending of course on height, he says that because of his long arms, he can reach to the back of things such as fridges and cupboards, but generally finds vacuuming and cleaning floors difficult. He said he tried vacuuming but when he pushes the cleaner one way, his wheelchair goes the other. It is the same with mopping. He cannot see himself changing the bed linen; "in fact it would be a great difficulty".

91           As far as shopping is concerned, he has done trips to the supermarket for a small number of items. He has tried to push a supermarket trolley but, I infer, it was too much for him. He said he would not be able to do a family's grocery shopping.

92           Generally, the plaintiff said that he valued his independence very highly, that he craved independence from his mother, and was a person who wanted to get on with things in life. In her evidence, Mrs Potts confirmed the domestic chores which she did for the plaintiff. She thoroughly cleans the flat once a week, which includes vacuuming and washing the floors, scrubbing the bathroom and trying to remove marks from the walls left by the wheelchair. She cooks for him every evening and makes his bed on a daily basis. She changes the bedding and does all his washing and ironing. Occasionally she vacuums his car.

The work situation

93           The plaintiff presently works in the Retail Service and Support section of MyState Financial, which is a "call centre" type environment. His daily tasks include dealing with direct debit issues such as where the authority has been cancelled, the wrong name has been used, etc, setting up periodic transfer payments, resolving ATM disputes and other issues, dealing with stopped cheques and generally, as he described it, acting as "a help desk for the branches". The internal level at which

18   No 55/2011

he works is described as "entry level", but the manager of the section, Ms Tracey Walker, said that he was very competent in the role which he performed. "It's a repetitive task, so he – the work flow itself is the same on each occasion, so he performs that to a high standard. … He works very well with the colleagues that he has in his team, so he's a very good team player and gets on very well with his team members."

94           In his evidence, the plaintiff was asked whether he thought he could continue to work in this job full time, or whether he was finding it too demanding in the physical sense. He said that he thought at some time he was going to wear out because he was already wearing out. He gave an instance of not long beforehand being run down to the extent that he got shingles and was having heart palpitations. He thought that working full time did take its toll. It was very difficult for him to work full time and fit in the medical and physiotherapy appointments which he needed. He could not see himself working full time for long in the future. Ms Walker said that they had noticed that he tires during the day. He took longer to do things such as going to the fax machine, and his tone of voice tended to plateau to the extent that his hours on the customer 'phone line had to be limited.

95           When asked as to how he would cope living independently and at the same time working full time, he said that he could not see that he would be able to do both; that is, do all the things necessary to look after himself and to work full time. He more saw himself working on a part time basis. He pointed out that that is what he had originally applied for and the basis on which he had started. Ideally he would like to work part time, in the order of three days a week. He did not see reduced hours per day as an option, preferring the notion of three full days. In cross-examination, he agreed that he was a very social person and that his work helped satisfy his social needs. Indeed that was where he had met his current female partner. I will return to aspects of the plaintiff's work at MyState when dealing with the claim for loss of earning capacity.

Sport and recreation

96           Before the accident, there was of course, the plaintiff's keen interest in soccer. He played at a high level of competition. He now maintains an interest but it seems restricted to watching English Premier League on television. He was interested in camping and going to the beach. He was always outdoors, hardly spending any time indoors at all. He said that he missed the outdoor life; he does his best to cope, "but it's difficult". He did however acknowledge that wheelchairs with large balloon tyres are available to enable access to sandy areas such as beaches, and to uneven terrain.

97           The plaintiff plays wheelchair tennis twice a week. He plays in an able-bodied pennant competition on Thursdays, and then practices with a tennis coach on the weekends. He has to play in an able-bodied competition because there are no longer any wheelchair tennis competitions as such in Tasmania. (The rules are modified for him in the able-bodied competition.) He travels to mainland Australia as many times as he can manage given his work commitments, to play in wheelchair tennis tournaments. These tournaments closely follow the able-bodied tournaments, so where there is a major tennis tournament, there is a parallel wheelchair tennis event. He has played in the Australian Open – three or four times – and the Victorian Open in Melbourne, in the Sydney International, and in competitions in parts of regional Australia. The parallel tournament situation exists elsewhere in the world; for instance, there are US Open and French Open wheelchair tournaments. He was the recipient of a State encouragement award for young sportspersons.

98           He enjoys the game a great deal. He says that he is a very competitive person and wheelchair

tennis is his outlet; "that's all I'm getting". He wants to continue to compete as he loves doing it. He
has played against men who have gone on to compete in the Paralympics, and that is obviously an
ambition. Longevity in wheelchair tennis is better than in the able-bodied game. The major reason
for that is that the wheelchair athletes are not exposed to the stress and strain on the knees. He gave

an instance of the Australian No 1 player who was playing well into his thirties and his now nearly 40.

19   No 55/2011

His world ranking at the time of the trial was 243. He said that one can compete internationally as an individual, provided the resources are available, and he said that it was one of his dreams to play in Europe.

99           For a short time, the plaintiff also played wheelchair basketball. This led to his involvement in an organisation called The Glenorchy Youth Taskforce. He was contacted because of his sport involvement. The organisation's aim is to help under privileged and disadvantaged youth, designed to involve them in community-based activities and advance general skill levels. He was involved in this program from the end of 2006, but his work now prevents him from doing much, although he maintains contact. Gymnasium activities are something which he did in the past and has an interest in pursuing in the future. He went to the gym for a while, but had a bowel accident and became very self-conscious. At about the same time the benefits payable to him expired and he did not have the money to pay for it himself. He got enjoyment and benefit from it, but does not think it would be practicable to consider going to the gym on a regular basis whilst he is in full time work. If he were working part time, it is something that he thinks he would resume; "I did enjoy being there and I would think that hopefully it would have the added effect of increasing my fitness, but you know, I'm not sure, I'd hope so."

Social activities and personal relationships

100         Going out with friends to hotels and restaurants is a regular event, although whether it is weekly or less frequently is not clear. Obviously there are some difficulties in going to some places more than others, depending upon access and facilities. The plaintiff said that he sometimes goes to the Casino and to a hotel at Glenorchy, he thinks he may have been to the Casino on weeknights. Sometimes he goes to social events with his old soccer club, although he does not have much involvement at all with his previous soccer friends.

101         As mentioned in the course of his evidence about sexual dysfunction which I have set out, the plaintiff had a long term girlfriend, the relationship with whom started in about mid-2004 and lasted for about 10 months. She was his first girlfriend and he ended the relationship, acknowledging that he "sort of pushed her away and wanted to see other people". Some time later, he met another girl who lived in Launceston. She came to Hobart and stayed with him for a few nights each week. This went on for about two months until he suffered bowel incontinence when they were in bed together. He said that she broke off the relationship the next day. As at the time of the trial, he had developed a relationship with a girl with whom he worked. They were good friends for a while and "decided to take that to the next level and things are going all right at the moment."

327        The issue of when the principle is invoked, and the effect of procedural provisions was discussed in Rodway v R (1990) 169 CLR 515. In a joint judgment, at 518 and 521, the court said:

"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively

62   No 55/2011

because it will prescribe the manner in which something may or must be done in the
future, even if what is to be done relates to, or is based upon, past events ...

But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity." [My emphasis]

328         I conclude that the provision does not operate so as to impact on existing rights and obligations which accrued at the time of the tort. It merely "takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that": Robertson v City of Nunawading [1973] VR 819 at 824. Accordingly, the issue of retrospectivity does not arise. The provision enables a court merely to refer to a decision of a court in this State "or other courts for the purpose of establishing the appropriate award in the proceedings". I think that as such, it is a matter of procedure. I hold that the section applies to these proceedings, and that the decisions from other jurisdiction which were brought to my attention were properly done so.

329         That however is not the complete end of the matter. What weight is to be given to these cases is another question. In Dodge v Snell [2011] TASSC 19, Wood J seems to have been referred to a number of cases from New South Wales and Victoria in relation to an assessment of damages for non- economic loss forming part of a broader assessment. Her Honour warned as follows:

"[490] Some general observations may be made about the approach of referring to a few isolated cases from other jurisdictions as the basis for a submission that the range reflected by awards from this Court ought to be increased. The cases are too few in number to provide an adequate guide to the range of awards for a particular jurisdiction. While the facts of one of the cases may be broadly similar, the award reflects details of the circumstances of the plaintiff that are quite different to the facts here.

…

[492]    The other observation to be made is that the awards referred to from this Court and interstate are difficult to rationalise, and it is difficult to see how they might, together, operate as a guide to future assessments."

330   Her Honour then set out what I would respectfully agree to be the proper approach, as

follows:

"[494]	Having regard to these observations I return to fundamental principles that assist with the task ahead. These principles were stated over 40 years ago by the High Court in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125, and, of course, well before the reforms in the [Civil Liability] Act, but they still provide sound guidance today. Of primary significance here is the principle that there is no 'standard' to be derived from a consideration of amounts awarded in other specific cases, and that damages must be fair and reasonable compensation for the injuries received and the disabilities caused. However, it is also right to be aware of and give weight to general ideas of fairness and moderation.
[495]	The modern approach should be the same, with the refinement that by virtue of … s28, regard may be had to decisions of other courts in obtaining a general idea of fairness and moderation. I bear in mind the observations I have made about the decisions from Victoria and New South Wales which require a most circumspect approach.
[496]	Ultimately my consideration of the award in this case will be governed by a careful consideration of the injuries received by Mr Dodge and disabilities caused. Subject to the matters of fundamental principle in Planet Fisheries, I

63   No 55/2011

bear in mind other awards of general damages made in this jurisdiction and the
awards to which I have been referred from this Court, and also other courts."

331         I have already detailed the grave and extensive injuries which the plaintiff initially suffered. He has been left with little sensation and complete immobility from the area of his high waist down. He will be confined to a wheelchair for mobility for the rest of his life. Fortunately, his head injury was not as grave as it may have been, but he has been left with some deficits in intellectual functioning. His day-to-day life involves arduous showering and dressing procedures. He has to self- catheterise for urination, and bowel evacuation is done manually. The personal difficulties he faces from day-to-day have been set out earlier. He is to be commended for his fortitude and the sensible and determined way he seems to go about dealing with his disabilities. He should not be disadvantaged by showing such resilience. He was a young man at the time of the accident and will have to carry these injuries for a long time. There are risks of significant deterioration in his condition, although the hope is that his life will not be more seriously affected, at least for some very considerable time hence. I regard the figure of $180,000 as one which properly reflects all of the matters which need to be taken into account under this head.

Outcome

332   I have assessed damages as follows:

Miscellaneous expenses	$68,736.91
Home modifications	$257,600.00
Home maintenance and operating costs	$36,000.00
Provision of motor vehicle and modifications	$45,000.00
Capital loss on resale of home	Nil
Provision of mobile telephone	$1,000.00
Domestic services and attendant care	$732,000.00
Nursing care	Nil
Assessments for retaining licence to drive motor vehicle	$2,304.00
Special equipment	$189,000.00
Interstate and overseas travel	$45,000.00
Insurances — home and contents	$5,000.00
Insurance — travel	$400.00
Pharmaceutical and general health requirements	$68,757.26
Future medical, therapy and counselling requirements	$165,250.00
Travelling expenses	$7,750.00
Loss of earning capacity (salary component)	$783,000.00
Loss of earning capacity (superannuation)	$127,238.00
Vocational counselling and rehabilitation	$3,494.36
University HECS fees	Nil
Health Insurance Commission reimbursement	$1,224.05
Scheduled benefits paid by MAIB	$209,305.36
Pain and suffering; loss of amenities and enjoyment of life	$180,000.00

Total $2,928,059.94

333         That total sum needs to be reduced by thirty per cent. The figure of $209,305.36 being the scheduled benefits paid by the MAIB needs to be deducted from the resultant total. That leaves a sum of $1,840,336.60. Judgment should be entered for $1,840,335.

64   No 55/2011

APPENDIX A

65   No 55/2011

APPENDIX B

DOMESTIC SERVICES AND ATTENDANT CARE

1         Whilst residing at Riverview Parade, Rosetta - estimate 2 years to in or about April 2013

Item Annual Cost Weekly Cost

14.0 Meal Preparation and cooking

Domestic assistance 2 hours/week x 52 weeks/year x $32.32/hour	$3,361.28	$64.64
15.0 Domestic activities
Domestic assistance 1.5 hours/week x 52 weeks/year x
$32.32/hour	$2,520.96	$48.48
21.0 Attendant Care
Attendant care 2.5 hours/day x 5 days/week x 48 weeks/year @
$35.50/hour	$21,300.00	$409.62
Attendant care 2.5 hours/day x 2 days/week x 48 weeks/year @
$44.38/hour (weekends)	$10,651.20	$204.83
Attendant care allowance for training 12 hours/year @
$35.50/hour	$426.00	$8.19
Attendant care day shift on holidays 14 hours/day x 5 days/week x
4 weeks/year @ $35.50/hour	$9,940.00	$191.15
Attendant care day shift on holidays 14 hours/day x 2 days/week x
4 weeks/year @ $44.38/hour	$4,970.56	$95.59
Attendant care sleepover shift on holidays 7 nights/week x 4
weeks/year @ $121.28/shift	$3,395.84	$65.30
Holidays attendant care mainland accommodation expenses 28
days/year @ $276.00	$7,728.00	$148.62
Additional allowance for 12 public holidays in Tasmania day shift
(50% surcharge) 2.5 hours/day x 12 days @ $17.75	$532.50	$10.24
Additional allowance for public holidays sleepover shift on
holidays (50% surcharge) say 2 nights average pa @ $60.64	$121.28	$2.33
Total	$1,248.99

This component is therefore calculated as follows : $1,248.99 pw x 2 years (discounted at 7% for present payment : multiplication factor 98) = $122,401.00.

2         Additional requirements when the Plaintiff resides independently in his own home - anticipated to commence in or about April 2013

Item Annual Cost Weekly Cost

Brought forward from 1.	$1,248.99
15.0 Domestic Activities

Domestic assistance 3.5 hours/week x 52 weeks/year x 32.32/hour	$5,882.24	$113.12
Garden maintenance assistance 4 hours/month 3 x 12 months/year
@ $50.00/hour	$2,400.00	$46.15
Home maintenance assistance 20 hours/year @ $50.00/hour	$1,000.00	$19.23

Total $1,427.49

66   No 55/2011

It is anticipated the Plaintiff will incur expenses detailed in the table above on a weekly basis in the sum of $1,427.49 to at or about the age of 50, when it is anticipated requirements will increase commensurate with a deterioration in his functional capacity.

This component is therefore calculated as follows : $1,427.49 x 22.5 years less first 2 years (discounted at 7% for present payment : multiplication factor 603 less 98 = 505) = $720,882.00.

3         Additional assistance required commensurate with deterioration in functional capacity from at or about the age of 50 years

Item Annual Cost Weekly Cost

Brought forward from 2.	$1,427.49
14.0 Meal preparation and cooking

Domestic assistance 2 hours/week x 52 weeks/year x $32.32/hour	$3,361.28	$64.64
15.0 Domestic activities
Domestic assistance 1 hour/week x 52 weeks/year x $32.32/hour	$1,680.64	$32.32
21.0 Attendant care
Attendant care 2.5 hours/day x 5 days/week x 48 weeks/year @
$35.50/hour	$21,300.00	$409.62
Attendant care 2.5 hours/day x 2 days/week x 48 weeks/year @
$44.38/year (weekends)	$10,651.20	$204.83
Additional allowance for 12 public holidays days in Tasmania day
shift (50% surcharge) 2.5 hours/day x 12 days/year @ $17.75/hour	$532.50	$10.24

Total $2,149.14

It is anticipated the Plaintiff will incur expenses detailed in the Table above on a weekly basis in the sum of $2,149.14 throughout the period age 50 to age 60. At age 60 it is anticipated that he will have significant functional difficulties precluding ability to transfer independently with a commensurate increase in need for daily assistance.

The calculation for the period age 50 to age 60 (10 years) is as follows : $2,149.14 pw x 32.5 years less first 22.5 years (discounted at 7% for present payment : multiplication factor 686 less 603 = 83) = $178,379.00.

4         Additional assistance required at or about the age of 60 due to deterioration in functional capacity precluding ability to transfer independently

(Alternative to NURSING CARE / Institutional Care).

Item Annual Cost Weekly Cost

Brought forward from 3.	$2,149.14
21.6 Attendant care

337 nights/year sleepover shift @ $121.28/night	$40,871.36	$785.99
Additional allowance for public holidays sleepover shift (50%
surcharge) balance (refer 21.0) 10 days @ $60.64	$606.40	$11.66

Total $2,946.79

The calculation is therefore as follows : $2,946.79 x 52 years less first 32.5 years (discounted at 7% for

present payment : multiplication factor 748 less 686 = 62)= $182,701.00.

67   No 55/2011

Summary of Claims

1.       Whilst residing at Riverview Parade, Rosetta - estimate 2 years to in or

about April 2013 $122,401.00

2        Additional requirements when the Plaintiff resides independently in his

own home - anticipated to commence in or about April 2013 $720,882.00

3        Additional assistance required commensurate with deterioration in

functional capacity from at or about the age of 50 years $178,379.00
4.	Additional assistance required at or about the age of 60 due to deterioration in functional capacity precluding ability to transfer independently $182,701.00
Total $1,204,263.004

68   No 55/2011

APPENDIX C

SPECIAL EQUIPMENT

1         Current requirements based on present functional capacity

Replacement

Item Unit Cost Annual Cost Weekly Cost

Period - Years

2.0 General physical abilities
Evolv standing frame with

postural supports (replacing

Easystand 5000)	$7,595.00	5	$1,519.00	$29.21
Annual service of standing
frame	$190.00	1	$190.00	$3.65
Height adjustable exercise plinth with knee break and head raise and safety sides – Firm n Fold	$3,000.00	7	$428.57	$8.24
Height adjustable gas lift stool –
Firm n Fold	$130.00	3	$43.33	$0.83
3.0 Sensation
KCI foot hugger @ $1,000 x 2	$2,000.00	5	$400.00	$7.69
Electric lift chair - Pride C-5	$1,395.00	7	$199.28	$3.83
VibrAlarm allowance for strobe and pillow vibrating alarm - and for installation	$297.00	10	$29.70	$0.57
Annual servicing of VibrAlarm	$190.00	1	$190.00	$3.65
4. Balance and transferring skills
Likolight mobile hoist	$4,573.00	10	$457.30	$8.79
Annual servicing of Likolight	$200.00	1	$200.00	$3.84
Customised slings x 2 @

$348.00 $696.00 3 $232.00 $4.46

Slide board	$273.00	5	$54.60	$1.05
5.0 Mobility

Decpac multi-purpose

transportable wheelchair ramp

with bag	$570.00	5	$114.00	$2.19
Jay Active pressure cushion with additional incontinence cover	$829.59	3	$276.53	$5.32

Allowance for 2 tennis

wheelchairs	$12,000.00	5	$2,400.00	$46.03
Annual servicing of 2 tennis
wheelchairs $250.00 x 2	$500.00	1	$500.00	$9.62
Rigid frame manual wheelchair	$6,000.00	3	$2,000.00	$38.46
Annual servicing of rigid frame
manual wheelchair	$250.00	1	$250.00	$4.81

69   No 55/2011

Replacement

Item Unit Cost Annual Cost Weekly Cost

Period - Years

Allowance for Magic Mobility

Extreme 4x4 motorised

wheelchair	$13,500.00	7	$1,928.57	$37.09
Annual servicing of Extreme	$250.00	1	$250.00	$4.81
Mobility Plus Equaliser folding
manual wheelchair	$2,800.00	5	$560.00	$10.77
Annual servicing of folding
manual wheelchair	$250.00	1	$250.00	$4.81
Access Solutions Xcella grip
mitts x 24 @ $85.00	$2,040.00	1	$2,040.00	$39.23
Tyre Pump – Mobility Plus	$55.00	5	$11.00	$0.21
Air Compressor – Mobility Plus	$150.00	10	$15.00	$0.29
9.0 Communication skills
Electronic Organiser - HP IPAQ	$499.00	3	$166.33	$3.20

10.0 Personal activities of daily living

Self-propelling shower

commode chair with padded seat

– LifeHealthCare	$1,200.00	3	$400.00	$7.69
11.0 Toileting
Bidet - Hyundai Bidet toilet seat	$1,290.00	5	$258.00	$4.95
12.0 Eating and drinking
Stable Table – Kmart	$27.95	3	$9.32	$0.18
13.0 Sleeping
Acton gel bed pad	$935.00	3	$311.67	$5.98
Snooze Osteo Supreme Queen
mattress for slat bed	$1,599.00	7	$228.43	$4.39
Over bed table standard – Relpar	$215.00	7	$30.71	$0.59

Moodmaker Queen sized

woollen underlay	$385.00	3	$128.33	$2.47
Dartex cover x 2 @ $340.00 –
Foam Sales	$680.00	3	$226.67	$4.36
14.0 Meal preparation and cooking
LifeHealthCare mobile kitchen
trolley	$195.00	7	$27.86	$0.54
16.0 Transport/driving skills
Norden Easy Seat	$0.00
Annual servicing of Easy Seat	$0.00
Chair topper – Wymo wheelchair
hoist	$0.00
Annual servicing of Wymo	$190.00	1	$190.00	$3.65
Wheelchair trailer	$3,500.00	10	$350.00	$6.73
Annual servicing of wheelchair
trailer	$150.00	1	$150.00	$2.88
Airhawk car cushion	$297.98	3	$99.33	$1.91

70   No 55/2011

Replacement

Item Unit Cost Annual Cost Weekly Cost

Period - Years

Car washing/detailing vehicle

$45.00 per fortnight $1,170.00 1 $1,170.00 $22.50

18.0 Employment/studies/computer

Commercial Seating Solutions electric height-adjustable corner desk – Stretch Now	$3,175.00	7	$453.57	$8.72
19.0 Recreation and leisure
Allowance for the modification

of recreational/sporting

equipment $850.00 1 $850.00 $16.30

Customised equipment

allowance $3,000.00 5 $600.00 $11.51

Total $388.00

Expenditure at the level detailed in the above Table at the rate of $348.32 will continue to at or about the age of 50 at which time needs will increase commensurate with a deterioration in functional capacity.

The calculation is as follows : $388.00 x 22.5 years (discounted at 7% for present payment : multiplication factor 603) = $233,964.00.

2         Additional equipment required commensurate with deterioration in functional capacity at or about the age of 50

Replacement

Item Unit Cost Annual Cost Weekly Cost

Period - Years

Brought forward from 1.	$388.00
4.0 Balance and transferring skills
Liko fixed track ceiling hoist

(x2x metre tracks straight)	$7,000.00	7	$1,000.00	$19.23
Annual servicing of ceiling hoist	$200.00	1	$200.00	$3.85
Liko Viking hoist – Medicraft
Hill-Rom	$5,334.00	5	$1,066.80	$20.52
Minus Liko Light mobile hoist
– no longer required	-$4,573.00	10	-$457.30	-$8.79
Customed slings x2 replaced
more frequently	$696.00	2	$348.00	$6.69
Minus customised slings x2
with 3 year replacement	-$696.00	3	-$232.00	-$4.46
5.0 Mobility
TDX 5 motorised wheelchair - a
reasonable allowance	$18,000.00	5	$3,600.00	$69.23
Annual servicing of wheelchair	$250.00	1	$250.00	$4.81
Minus rigid frame wheelchair	-$6,000.00	3	-$2,000.00	-$38.46
Minus annual servicing of rigid
frame wheelchair	-$250.00	1	-$250.00	-$4.81
Minus 2 tennis wheelchairs	-$12,000.00	5	-$2,400.00	-$46.15
Add 1 tennis wheelchair	$6,000.00	7	$857.14	$16.48

Engrit Rehabilitation King

single hi/low bed with upper posture and knee break, including freight	$2,275.00	7	$325.00	$6.23
PRM special pressure-reducing
mattress - King single	$530.00	3	$176.67	$3.40
Minus Snooze Osteo Supreme
Queen mattress for slat bed	-$1,599.00	7	-$228.43	-$4.39
Minus Moodmaker Queen sized
woollen underlay	-$385.00	3	-$128.33	-$2.47
Minus Dartex cover x2 @
$340.00 – Foam Sales	-$680.00	3	-$226.27	-$4.36
Should the Plaintiff develop pressure sores - Nimbus III and rebatable foam king single mattress (with allowance for a deduction to take account of other sleeping requirements no longer required)	$15,490.00	5	$3,098.00	$59.42
Annual servicing including call out, labour and replacement cells, handsets	$250.00	1	$250.00	$4.79

Total 454.53

The calculation is therefore as follows : $454.53 x 52 years less 22.5 years (discounted at 7% for present payment : multiplication factor 748 less 603 = 145) = $65,907.00.

Summary of Claims

1	Current requirements based on present functional capacity	$233,964.00
2	Additional equipment required commensurate with reduction in
functional capacity at or about the age of 50	$ 65,907.00
Total	$299,871.00