Pulford v Motor Accidents Insurance Board

[1991] TASSC 144

Serial No B30/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Pulford v Motor Accidents Insurance Board [1991] TASSC 144; B30/1991

PARTIES:  PULFORD
  v
  MOTOR ACCIDENTS INSURANCE BOARD
  JONES

FILE NO/S:  334/1987
DELIVERED ON:  11 June 1991
JUDGMENT OF:  Crawford J

Judgment Number:  B30/1991
Number of paragraphs:  124

Serial No B30/1991
List "B"
File No 334/1987

PULFORD v MOTOR ACCIDENTS INSURANCE BOARD
AND JONES

REASONS FOR JUDGMENT  CRAWFORD J

11 June 1991

1. On 29 August 1986 the plaintiff suffered serious injuries in a motor vehicle accident. There were two collisions. The first was between her Toyota Landcruiser flat tray truck, driven by her, and a Holden Camira sedan being driven in the opposite direction by Trevor Glen Haslock, who died as a result of the collision. The first defendant stands in his place as a defendant. The flat tray was then struck by a Toyota Hi Lux utility which was following her along the highway. It was being driven by her close friend, the second defendant.

1. By the pleadings the defendants admit that the first collision was caused by the negligent driving of the deceased and that the second collision was caused by the negligent driving of the second defendant. But they allege that both collisions were contributed to by the negligence of the plaintiff in the manner of her driving immediately prior to the first collision.

ACCIDENT CIRCUMSTANCES

1. The plaintiff had her 16 year old son, Mervyn Duncan, as a passenger when she pulled up in her flat tray outside the Bothwell home of the second defendant. She had pre–arranged with the second defendant that he would follow her north along the Lake Highway to her home at St Patrick's Plains, about 40 kilometres from Bothwell, where they planned to go spotlighting for kangaroos and possums that night. She sounded her horn and drove out of Bothwell on the highway. The second defendant left his house and followed in his utility, catching up just outside town. It was about sunset. She was wearing a seat belt.

1. For most of the trip the plaintiff drove at between 80 and 100 kmh and immediately prior to the events of the accident was driving at about 90 kmh, certainly no less than 80 or more than 100. In this regard generally I accept the evidence of the plaintiff, her son and the second defendant, who all spoke of speeds in this region. For most of the trip the utility was about 100 yards behind the flat tray according to the evidence of the plaintiff and the second defendant who, being the drivers, I accept. That was the approximate distance separating them immediately prior to the events of the collision.

1. In the vicinity of a property called "Hunterston", which is about 3 kilometres south of the accident scene, the plaintiff put her headlights on, as did the second defendant shortly after. The three occupants of the two vehicles all agreed on this. Darkness was gathering. It was not completely dark, but dark enough to warrant the use of headlights. Counsel for the defendants argued that I should find that the plaintiff's lights were not on at the time of the collision because it should be assumed that the deceased was keeping a proper lookout. That being so, it was argued, lack of lights on the plaintiff's flat tray explained why the deceased apparently failed to observe it and move out of its way. I reject this argument. There was no evidentiary basis for assuming that the deceased was keeping a proper lookout and I have no reason to doubt the truthfulness of the plaintiff, her son and the second defendant about the lights.

1. The plaintiff approached a sweeping left hand bend on which the collisions happened. I accept the evidence of the same three witnesses, and there was no evidence to the contrary, that she was travelling on the left half of the bitumen. The positions of the flat tray and utility after the accident, together with marks on the road caused by the vehicles, also support this conclusion. The width of the bitumen was six metres. Along the centre of the bitumen, at the place of the collision, ran a continuous white line and a broken white line which signified to drivers in the deceased's position that they were required to keep to the left of them, which is something the deceased plainly failed to do. On each side of the bitumen were gravel verges about one metre wide, at the extreme outside of which were occasional guide posts. Outside the verges the ground fell away down embankments.

1. As the plaintiff approached the bend she saw, through the trees, across the inside of the bend, the headlights of the approaching Camira. In evidence her estimates of the distance then separating her from it were 180 yards and 200 yards, although she did not dispute that she had mentioned 240 yards in her answers to some interrogatories. The Camira cleared the trees and the plaintiff could see that it was over onto her side of the road. The distance at which she could see this was, I find on her evidence, about 150 yards (137 metres). Mr Duncan gave as his estimate of when the Camira came clear of the trees as 100 to 120 metres, but he was prepared to agree with 150 or 160 yards.

1. The Camira was at least substantially on its incorrect side of the road. The plaintiff described it as being totally on her side of the road coming straight at her vehicle, without deviation before impact. Her son, Mr Duncan, agreed that it did not deviate, but he did not describe it as being totally on their side of the road. In an affidavit sworn by him for coronial purposes five days after the accident he referred to the car being "about 3 parts of the way on our side of the road" which literally suggests that three quarters of it was on the wrong side of the centre. In evidence he referred several times to it being "on the wrong side of the road" but he also said that "it was well and truly a third of the way over the white line". Almost immediately after he said that it was occupying most of their side of the road and then "very close to half the side of our road" and then "around about half of our side of the road because we was in the gravel". In cross–examination he said it "was more than a third of the way across". Still later he said that most of it was over the white line. To Mr Jones the Camira appeared totally on its incorrect side just before the collision but he accepted that he had little time for observation, and he saw only its lights and not the Camira itself. He was much further away and the flat tray would have been obstructing his view to some extent. In an affidavit for the inquest he had referred to the Camira appearing "not totally on its correct side of the road". It is possible that this was a reference to an earlier moment in time than the collision. I will return to the Camira's position later.

1. The three witnesses to the accident were asked to estimate the speed of the approaching Camira. It was close to dark and they had observed the approaching headlights during a very short period of time. Their estimates must be considered with doubt concerning their ability to accurately assess the speed. The plaintiff described it as a very high speed which she said was probably 100 mph (160 kmh), although she admitted that was a guess. In an affidavit for the inquest she said the oncoming car was "floating and was travelling at a very fast speed". Mr Jones described it as "coming pretty fast". He could not say a speed but believed it to be faster than 90 kmh. Damage to the flat tray and particularly to the Camira, as revealed by photographs, and the distance of the Camira from the point of impact after it came to rest, tend to support a conclusion that it was travelling at a high speed, but on all the evidence it is not open to find its speed with any precision. I find that it was 100 kmh at the very least. It is possible that its speed was as great as that guessed by the plaintiff, but in the conditions of poor light and shortness of time, with the Camira coming at her, I cannot be confident that her "guess" was accurate. On the basis that when the plaintiff first realised that the Camira was on the wrong side it was 137 metres away, that the flat tray's speed was then 90 kmh and that of the Camira between 100 and 160 kmh, the collision was then only 2 to 2.5 seconds away.

1. The plaintiff claimed to have reacted to the imminent collision in the following terms:

"Well I pulled off right on to the side of the road, so my left hand wheel was out on the gravel and I had to go past the guide post or knock it out, and I applied the brake and I didn't have much time for anything else because the vehicle was right upon us and it was just 'bang', but if I'd have pulled over too far to the left I would have rolled anyway, but I was as far off the road as I could get".

1. The plaintiff said that at impact her passenger's side wheels were on the gravel, that her speed would have slowed a little to about 80 kmh, and that the time between when she began to swerve and brake and when the collision occurred would only have been a matter of a few seconds. She said that at impact the Camira was completely on her half of the bitumen. In cross–examination she was adamant that her wheels went onto the gravel and that that was the situation at the moment of impact. She referred to pulling in around a guide post but I doubt that this occurred because it seems likely that the only guide post in the vicinity was adjacent to the point of impact. In an affidavit sworn by her for the inquest she did not mention taking any evasive action other than the application of her brakes. In evidence she maintained that she could not have swerved further to the left than she did.

1. Mr Duncan's evidence supported that of his mother concerning the movement of the flat tray onto the gravel. He said there were only two or three seconds between when he observed that the Camira was on the wrong side of the road and the collision and in that time the flat tray slowed to about 60 kmh. However it did not feel to him that it skidded. He said that the brakes would have been applied whilst the passenger's side wheels were in the gravel and that the flat tray was in that position at impact. In his coronial affidavit he made no mention of braking, slowing or moving to the left. The evidence of Mr Jones was that he did not observe any change in direction on the part of the flat tray nor did he observe any brake lights.

1. I find that her vehicle did not in fact move onto the gravel verge. The evidence of Senior Sergeant Morgan satisfies me of this. He impressed me as a careful investigator and honest witness. He was a member of the Accident Investigation Section and went to the scene of the accident that night with the responsibility of investigating what had occurred and analysing the scene. He had had some training and experience in this regard. He searched the scene for burn marks (from tyres), skid marks, gouge marks, scrape marks and debris. His search included both gravel verges and he found nothing consistent with tyre marks in the gravel which may have been caused by a vehicle travelling at the speed of the flat tray or by it skidding or throwing out gravel as it proceeded. His examination of the verges extended from about 90 metres north of the position at rest of the two Toyotas to about 150 metres south of them, which was about 90 or 100 metres south of the final position of the Camira. He was assisted with powerful lights. He admitted that he would not have noted what he would have considered to be minor tyre marks such as those one might expect to see from a vehicle driving gently along the gravel, his search being directed towards signs of gravel being scattered by a vehicle moving at speed or under brakes. He summarised his evidence by saying that he was looking for something out of the ordinary and something fresh.

1. The plaintiff could have travelled with the left wheels of the flat tray about 60 centimetres off the bitumen without incurring a risk of losing control because of the embankment about 1 metre off the bitumen.

1. The front of the flat tray collided with the front of the Camira. There was some oral evidence suggesting that the collision was between the right half of the front of each vehicle. However photographs show that the radiators of both vehicles were left untouched and I find that the right one third, or thereabouts, of the front of each vehicle collided with the other. The scale plan shows the width of the flat tray at 1.8 metres and I assume that the width of the Camira, being a sedan, was something less than that. Accordingly I find that at the moment of collision the overlapping fronts of the two vehicles occupied about 2.8 metres of the width of the bitumen, the Camira being entirely, but only just, on its wrong half of the road or if not then almost so. The flat tray was completely on its correct half of the bitumen. Precisely where cannot be ascertained. I also find that the deceased did not cause his vehicle to appreciably move to either side in an attempt to avoid the collision nor did he apply the brakes of the Camira sufficiently to cause skid marks to be left on the bitumen. The plaintiff's vehicle did not leave skid marks either.

1. If the flat tray had been .6 metre on to the gravel the vehicles would either have just missed each other or would have just clipped each other in which latter event the severity of the impact would have been considerably lessened.

1. Upon impact, which I find was adjacent to a guide post on the western side of the road in the vicinity of a group of three gouge marks, found by Senior Sergeant Morgan, the Camira was flung to its left and finished completely off the eastern side of the road over 30 metres away. Because of the absence of marks on the road it is likely that it was in the air for much of that distance.

1. I accept the evidence of the plaintiff and Mr Duncan that the flat tray rolled. They both gave evidence that it rolled completely at least twice, possibly three times. However I do not accept that the plaintiff was correct when she said that the vehicle rolled back to the south, in the direction from which she had come. It is more likely that its forward momentum caused it to continue in a northerly direction along the highway. Taking into account that the evidence clearly established that the second defendant's utility left a skid mark about 34 metres long before terminating at a point where it must have collided with the flat tray and also taking into account the gouge and scrape marks on the road surface, it was established that the flat tray must have continued in a general northerly direction following the first collision.

1. The second defendant applied his brakes and I accept his evidence that his vehicle slid along the road. He felt it collide with the flat tray. His utility came to a standstill facing north mainly on its left half of the bitumen but with its right side wheels a few centimetres over the centre line. Its front was in contact with the right front corner of the flat tray which came to rest on its wheels facing in a south easterly direction across the centre of the road. Those two vehicles first came into collision when the front of the utility collided with the roof of the cabin of the flat tray, which may still have been in the process of rolling, the flat tray's right side being on or immediately above the road surface and its front pointing in an approximate easterly direction. That collision may have been sufficient to cause the flat tray to roll over onto its wheels before coming to rest, although it is possible that it would have done so without the assistance of that collision. It was not a very violent one. The imprint of part of the number plate of the utility was left in the dust on the roof of the flat tray, and there was also some of the utility's green paint on that roof. A photograph of the front of the utility shows only minor damage to it which is suggestive of an impact with little force. This conclusion is supported by the evidence of the second defendant who described it as a "bang" which was not very big and as an impact which he did not feel a lot. It is also supported by his statement that the cost of repairing his vehicle was approximately $1,400. In cross–examination he described the impact as a small or light bump. Mr Duncan was not aware of the second collision. The plaintiff's evidence was that having rolled in a southerly direction she felt a bump, not a very big one and a squeak from behind and her vehicle was then pushed northwards. No doubt her impression of this came about as a result of her vehicle being suddenly bumped and jerked in that direction but, as I have said, the vehicle was already rolling that way.

1. With the second defendant about 100 yards (91 metres) behind the plaintiff he had seen the approaching Camira, apparently to him on the wrong side of the road. It occurred to him that there was going to be a collision and then there was what he described as a big explosion and a big "puff" of smoke into which he went. He described the period of time from first seeing the Camira on its wrong side until the collision as "split seconds" and that there was "no time for anything". It is not open to find that he should have realised that the Camira was on its wrong side at an earlier point of time than he did. It would have been partly obscured by the flat tray as it came round the bend. His evidence satisfies me that the time between his realisation and the collision was very brief. He said that at no time did he have a feeling of danger for himself. He applied his brakes and his vehicle started sliding. He had thought that the distance (of 100 yards) between him and the plaintiff's flat tray was a safe distance. He was unable to say whether he applied his brakes before, at or after the first collision. No doubt he would have been closer than 100 yards when he did apply the brakes. His vehicle did not begin to leave a skid mark on the road until about 14 metres before the point of impact of the first collision and that skid mark continued thereafter for about 20 metres until his vehicle caught up with the rolling flat tray and collided with it. It is therefore apparent that about 3 seconds elapsed from when the first collision occurred until his utility commenced to leave a skid mark on the road. The admission of negligence on his behalf, in so far as the second collision is concerned, can therefore be understood.

1. The majority of fault for everything that happened must rest with the deceased. His Camira was entirely on its incorrect side, or almost so. Until 2 to 2.5 seconds before the first collision the plaintiff was driving quite properly on the correct side of the highway. However between her and the deceased she should have apportioned to her a very small percentage of responsibility for her injuries and damages because of her failure to drive off the bitumen onto the gravel verge. The probabilities are that if she had done so either the collision would not have eventuated or the violence and result of the collision would have been substantially reduced. I assess her share of the responsibility at 10% but not more because she had only a small amount of time in which to assess the situation and take evasive action.

1. Notwithstanding that by his formal admission in his defence the second defendant admitted that his negligence contributed to the second collision I make no finding as to the extent of his contribution in that regard. It has not been established by the evidence on the balance of probabilities that any of the plaintiff's damages or injuries arose from the second collision, that is to say from his admitted negligence. The grievous injuries suffered by the plaintiff were caused by the negligence of the deceased and the contributory negligence of the plaintiff. The first collision was extremely violent. The second collision was relatively minor and I am not satisfied that any injuries resulted from it. Accordingly there should be judgment for the second defendant.

THE PLAINTIFF PRIOR TO THE ACCIDENT

1. The plaintiff was born on 5 August 1937. Her father was a shepherd. She was a shepherdess. Prior to the accident she lived almost all her life in the Lake Country. Her school education was slight, starting at age 9 and finishing at age 13. She can "just" read. At age 13 she worked for about 6 months on a horse farm. She then worked with her father for a few years. She had some experience, when a young woman, as a barmaid and waitress at the Miena Hotel. From about 1958 to 1961 she was employed full time as a shepherdess at a property called "Split Rock".

1. From about 1961 until 1974 she was similarly employed at a property on Skittleball Plains on the Marlborough Highway near Little Pine Lagoon. She had two children, Mervyn Duncan born on 9 June 1970 and Tanya Duncan born 29 September 1971. The father of the children left her at the end of 1973. Conditions at the house, which was provided by her employers, were primitive. There was no power. Water came from a well. Her work included driving sheep from down country to Skittleball Plains for summer grazing and back down again for winter. She regularly checked and moved stock, usually on horseback accompanied by dogs. In fact she was more usually on horseback than in a vehicle when working with stock. She did some fencing work. Generally she was caretaker of the property and cared for its stock of up to 3,000 to 4,000 sheep and about 60 cattle.

1. Living as a single parent with two young children in such a remote place and in such primitive conditions was understandably not to her liking and in 1974 she was able to secure alternative employment with a Mr Ellis on his property at St Patrick's Plains. It suited her as her growing children placed more demands on her time. It was not full time employment. She was in the nature of a caretaker who did casual shepherding. This state of affairs continued until the accident on 29 August 1986. She lived in a house on the property. No one else lived on it. She kept her eye open for any problems which needed attention, such as a hole in a fence or strangers coming onto the property without permission. She also did about 30 to 40 days a year of paid shepherding work on a casual basis for Mr Ellis. Most of her work was on horseback rather than in a vehicle. She participated in the droving of stock on roads, feeding out hay, drenching, wigging, gathering stock and some fencing work. She trained and used her own dogs and had her own horses. She also helped others with droving, but apparently not for reward.

1. Mr Ellis gave her sole hunting rights on St Patrick's Plains. She could allow others, if she chose, to enter the property to shoot possums and kangaroos which was an activity from which she derived much pleasure and in which she engaged frequently and described as a "fever". She maintained a large vegetable garden and kept a variety of farm animals and poultry in addition to her dogs and horses. She persuaded Mr Ellis to connect electricity to the house and she installed hot water in the bathroom. She used a fuel stove for cooking and heating. The house was about one mile off the Lake Highway and about 40 kilometres from the nearest town, Bothwell. On school days her children travelled away but they were home at night, on weekends and during school holidays.

1. She was described variously by witnesses as "somewhat of a legend in the Lake Country", very confident, competent in the area in which she worked, an excellent horse rider, brilliant at looking after stock and droving, and "one of the best shepherds in the Lake Country without doubt" and the quality of her work was described as "the best you could get". She featured in a national television programme known as "The Big Country". Her qualities as a shepherdess, horse rider and Lake Country character were amply described by those witnesses, to the extent that her counsel's rendition of extracts from the Man From Snowy River in opening, although apposite, added little!

1. Immediately prior to the accident the plaintiff was in good health. She rarely saw a doctor. I accept the evidence of Dr Brennan that she was an independent, confident and happy person.

INJURIES AND TREATMENT

1. The plaintiff was lifted out of her vehicle and laid on the roadside. She had a shocking pain in her chest. After about 2 hours an ambulance took her to the Royal Hobart Hospital where the extent of her injuries were realized. An intercostal drain was inserted to drain blood from the left side of the chest. Insertion of the tube caused considerable pain. Early next morning she was transported by air and admitted to the Austin Hospital in Melbourne. When being placed in the aircraft she was screaming because of pain.

1. Her injuries consisted of the following. There was a fracture of the 5th thoracic vertebra which is about the level of the mid–back. There were multiple fractures of ribs on both sides, with air and fluid in the chest cavity and some major left lung contusions. She had an abrasion and large bruise on the right side of her forehead, another across the bridge of her nose and one just below the right corner of her mouth. There was a large swelling with bruising over the right side of her scalp and blood in the right ear canal. The front of her chest was bruised and it was noticed that there was decreased air entry at the base of both lungs and the upper part of the left lung. Her abdomen was distended and bowel sounds were absent. She had cuts to two fingers. Neurological examination revealed normal cranial nerves and nerves to her arms and chest but, because of the spinal fracture, there was complete paraplegia from the mid–chest down. In other words she had no feeling in the lower part of the chest, abdomen and legs nor muscle power in those places. This is permanent.

1. The thoracic fracture was treated conservatively. The chest injury was treated with mechanical ventilation, initially involving a tube through her mouth or nose but subsequently she underwent a tracheostomy in the interests of comfort. The tracheostomy tube was not removed until 8 October but the mechanical ventilation ceased by mid–September. Right and left intercostal catheters to drain the haemothorax were inserted. A lacerated finger was repaired on the day following admission.

1. Because of her paralytic ileus (paralysis of the intestine) a naso–gastric tube was used to drain her stomach. Her bladder was drained with an indwelling urethral catheter and an intravenous infusion was used for the administration of fluids and drugs. She was nursed on an Egerton electric turning bed to prevent the development of pressure sores and was lifted manually twice daily by a team of medical orderlies for attention to her bed and inspection for such sores. Over the next few days she made slow progress with fever, chest infection and prolonged paralytic ileus. She was heavily sedated and fortunately does not remember her early days in the Austin. By 6 September she was able to tolerate food and fluids and the naso–gastric tube was removed. The intercostal drain inserted at the Royal Hobart Hospital was removed on 1 September and both such drains inserted at the Austin Hospital were removed by 7 September. The hospital noticed definite progress by the second week in September. However there were a few complications which occurred and a further intercostal tube was inserted for a few days to drain a right pneumothorax.

1. On about 15 September she was transferred to the acutesub–acute spinal ward. Thereafter steady improvement occurred. At some stage she learned of the extent of her injuries and the fact that she would never walk again. She found this very difficult to cope with and as a result suffered from a depressive illness which required anti–depressant medication. After a few weeks she gradually improved in this regard. She commenced a sitting–up procedure on 15 September and sat out of bed in a wheelchair for the first time on 10 October. The procedure involved gradual raising of the head of the bed, in effect notch by notch. This caused a lot of pain through her chest. For about the first two weeks of using the wheelchair she was strapped into it, and even today she requires a strap so as not to fall out.

1. There then commenced a lengthy period of active rehabilitation and physiotherapy at the Austin Hospital. She was taught how to manage her skin, learning how to do pressure relief in her chair and bed by moving her position and learning what clothing would be appropriate for her to wear to avoid pressure sores developing. She learned how to conduct skin checks on all parts of her body using a mirror each morning and evening. Because of the high level of her paralysis she cannot effectively cough to void fluid from her lungs. This can be dangerous to her as infection could be encouraged. She was taught how to push in the area of her abdominal muscles or to have someone else do it for her to lessen the consequent risk of infection but she is permanently left with a tendency to such infection. She was instructed in bladder care including the use of a catheter and its care. She was taught to manually stimulate her bowel to empty the rectum.

1. She was taught how to sit up on her own and strengthen her arms by exercising with weights. It was necessary to strengthen the muscles in her upper chest and arms and to learn how to balance. She received extensive training in effecting transfers such as transfers from bed to wheelchair, wheelchair to commode, wheelchair to motor vehicle and onto and off the floor. All of these activities are extremely difficult for her. She has lost about ³ ₄  of the use of her trunk and as a result her ability to balance and to effect the transfers is impaired. She received instruction on daily stretching of the muscles below the level of the injury to avoid shortening and contracture and to assist in controlling spasm.

1. Occupational therapy was administered. She was instructed how to manage in a kitchen, particularly in how to move objects on a bench and stove without spilling the contents and burning herself. She also had some training with a vacuum cleaner.

1. She found learning to use a wheelchair very difficult at first. During the rehabilitation process she was most unhappy and depressed. This was no doubt partly contributed to by the fact that she received only infrequent visits from friends and relatives in Tasmania. I accept the evidence of Dr Brown that support from relatives and friends is most important in a case such as this. It assists the patient to understand that they are still worthwhile, to adopt positive attitudes and to know that they are loved and cared for despite their disabilities. Notwithstanding her distance from home she was fortunate in receiving some visits and support from those close to her. The visits also enabled some of them, particularly her daughter, to learn how to handle her to the extent that she was allowed to go home temporarily for Christmas 1986. She returned to the Austin Hospital on 3 January 1987. She was cared for at home by her son, daughter and the second defendant. The house at St Patrick's Plains was unsuitable for her. Particularly because of steps she had to be carried into and out of the house. Two people were required for this as they were for transfers to and from a motor vehicle. She needed the full time attendance of at least one person at all times.

1. She continued with therapy at the Austin Hospital from 3 January until final discharge home on 3 February 1987. During that time she learned how to change her indwelling catheter. During her stay at the Austin and while at home over Christmas she suffered from a lot of muscle spasm mainly in her legs, which was most uncomfortable and upsetting for her. Once again she moved back to the house at St Patrick's Plains. By this time Mr and Mrs Walter Jones of Ouse had offered a farmhouse for modification and then use by her. In the meantime she continued at St Patrick's Plains where she was cared for by the same three people. Evidence from the plaintiff was to the effect that she resided at the Douglas Parker Rehabilitation Centre from Mondays to Thursdays each week until 6 March 1987, returning home to St Patrick's Plains each weekend. However the records of the Centre do not bear this out, for they show that she lived at the Centre only from 3 to 6 March, then going home with the intention of returning on 16 March. On the night of 9 March the waterbed used by her overheated. Because of lack of feeling she did not realize and as a consequence she suffered a full thickness burn to her right hip. She was admitted to the Royal Hobart Hospital from 10 March until 22 May 1987. A skin graft was performed. On discharge she had lost many of the skills taught to her at the Austin Hospital and she required further therapy at the Douglas Parker Rehabilitation Centre where she resided from Monday to Thursday each week, commencing on 25 May and concluding on 9 July, with the exception of Monday 8 June. On 8 July the St Patrick's Plains house was destroyed by fire and she therefore took up residence in a house at Bothwell occupied by the second defendant and his mother, Mrs Eva Jones. She was still resident there at the time of the trial. The house of Mr & Mrs Walter Jones at Ouse, which was eventually modified as a residence to be used by her, was also destroyed by fire and no further attempts have been made at providing alternative accommodation.

1. The vertebral fracture has healed and is unlikely to cause the plaintiff any future problems. There is a possibility however that she may experience more wear and tear at the disc spaces above and below the site of the injury which may lead to the onset of arthritis earlier than would otherwise have been the case. She is likely therefore to suffer some pain and limitation of movement due to this accelerated arthritis within 5 years.

1. Due to the relatively high level of her fracture she has experienced, and will continue to do so, difficulty with transfers from and to her wheelchair and in other respects. She is fairly stocky and her weight and bulk makes transfers more difficult. She is now 53 years of age and consequently improvement in strength and mobility is unlikely. I will deal further with the subject of transfers later.

1. Her extensive chest injuries have healed well. However, the paralysis of her lower chest muscles and all her abdominal muscles makes it impossible for her to cough effectively. She is therefore at increased risk of bronchial and lung infections and will require prompt treatment for respiratory infection with antibiotics and assisted coughing. There may be occasions when she will require the help of a professional physiotherapist and even hospital admission. It is possible that she will require mechanical ventilation on occasion to help clear her chest of pneumonia. This risk of infection has reduced her expectation of life.

1. Her longevity will also be affected by urinary tract infections. She is now prone to them and this tendency has been increased by the need to use an indwelling catheter for bladder drainage. She will at all times have bacteria in her urine while she has the indwelling catheter. At times there will be bacterial invasion of the bladder wall and it is possible that she will suffer other complications such as the formation of bladder or kidney stones and septicaemia. She is therefore more prone to have kidney damage at an earlier point of time in her life but for the injuries she received. She will require prompt treatment for any symptomatic urinary tract infection and whenever her urine becomes contaminated with proteus, which is a bacterium prone to cause stone formation. She will need to be reviewed by someone experienced in the management of people with spinal cord injuries at least yearly in order to detect complications at an early stage before they become serious and lead to permanent damage. Even with the best of care it is probable that she will suffer some urinary tract infections and other complications. With prompt and appropriate treatment it is unlikely that she will suffer serious permanent urinary tract damage in under 10 years following the accident. Renal failure is uncommon in the first 15 years after such an injury.

1. Her general health will depend to some extent on the care which her skin receives. She has been taught how to care for her anaesthetic skin. Provided she continues with this care and treats any minor skin complications properly, it is unlikely that she will suffer any serious skin breakdown. It is unlikely that her life expectancy will be reduced on this account. However because of the bladder and chest infections her life expectancy has been reduced by 15% to 20% in all because of her injuries. The parties agreed that her normal life expectancy immediately prior to the accident on 29 August 1986 was 31.61 years but at the date of the trial in October 1990 her life expectancy was 22 years.

1. For about two years until January 1989 her Bothwell general practitioner was Dr Brennan. He noticed that in the Jones' house there was obvious disharmony and he had treated the plaintiff, Mrs Eva Jones and the second defendant for stress related illnesses. The plaintiff was taking eight different medications and it was difficult to reduce the need for them. She had a series of urinary tract infections which became more resistant to treatment. She became pot bellied and heavier in her wheelchair and Dr Brennan observed that she was losing her skills with transfers. He thought that she had gone backwards in this regard "a good deal". He was seeing her on an average of once a week.

1. Dr Chapman has been her treating general practitioner at Bothwell since January 1989. He estimates that he sees the plaintiff two or three times a month and that about half of the consultations have arisen from her injuries. His observations of her principal problems have included urinary tract infections but he has also been concerned with chest infections and a complaint of weakness in her arm. As a result of urinary tract infection she became seriously ill and her life was threatened. She was admitted to the Royal Hobart Hospital for this from 29 October 1989 until 16 November 1989. Earlier in 1989 she was admitted to the hospital overnight because of rectal bleeding. The cause of it was not discovered. She was admitted to that hospital again from 3 to 6 June 1990 because of recurrent urinary tract infections. A cystoscopy was performed and a supra pubic catheter was inserted under local anaesthetic. The risk of infection has been reduced by the supra pubic catheter but it still exists.

1. The plaintiff suffers from intermittent rectal bleeding but Dr Chapman has not been able to find the cause. He also stated that in October 1988 the plaintiff suffered an injury to her left foot as a result of which there was damage to ligaments and her ankle is unstable and tends to fall in. This may lead to her inadvertently having her foot caught somewhere and slightly injured. By January 1989 she was experiencing weakness in the left arm and some minor symptoms of decreased pain and temperature sensation in that arm. Eventually the cause was diagnosed as a cyst in the spinal cord. If such a cyst spreads it can cause considerable disability and health problems. She was admitted to the Austin Hospital from 4 to 12 April 1989 when the existence of the cyst was confirmed. She was admitted again from 5 February 1990 to 24 February 1990 when the cyst was drained by a neurosurgeon. Following the operation the drainage tube slipped out of position but it is quite possible that the operation was a success. There is a 10 to 15 per cent chance that the condition will recur and require a further operation. Although the plaintiff says that her loss of sensation is about back to normal, she still complains of weakness in the arm. Dr Brown explained in evidence that the purpose of the draining of the cyst was to stop its progression and not to restore any function already lost.

1. The plaintiff has taken a considerable variety of medication since the accident and she will continue with much of that medication for the rest of her life. Examples of that medication are – Lioresal for the prevention of muscular spasm; Valium for relaxing nerves and muscles and as a tranquillizer; Voltaren which is an anti inflammatory; Prothiaden as an anti depressant; Coloxyl which is a faecal softener; Senacot as a bowel aperient; Vallergan to relieve itching of the skin; Noctec which is a sleeping drug; Fefol to increase the iron content in her blood; Oroxine an antibiotic.

THE NEED FOR FUTURE MEDICAL TREATMENT

1. She will need to see a spinal specialist once a year for review. A specialist from the Austin Hospital visits Tasmania each year for such a purpose. She may also need to see other specialists for treatment of chest infections, urine complications, development of a cyst, pressure sores, kidney stones or other conditions arising from her injuries. I accept Dr Brown's evidence that it is impossible to predict but on average a specialist may be required every two or three years. With increasing age this need will increase because of a decline in her reserve functions. She is likely to suffer from clinical urine infections two or three times a year and therefore need to be treated by her general practitioner for them. She will be more prone to chest infections in the future and may need physiotherapy as a result. Dr Millingen was of opinion that she will probably require hospitalization for about two weeks in each year. Dr Brown stated that on average a person with the plaintiff's injuries can expect to spend two to four weeks a year in hospital, the time increasing later in life. For reasons I will explain later, I tend to prefer the evidence of Dr Brown where there is a conflict. It is unlikely that the plaintiff will develop any major pressure sores, but it is a possibility in which event she could spend two to three months in hospital for treatment. Chest infections could mean hospitalization for two or three weeks at a time and urine infections could mean a week in hospital perhaps once every one, two or three years with the chance of it increasing later in life with damage to her kidneys.

DAILY LIFE AT THE TIME OF THE TRIAL

1. When the plaintiff moved into the Bothwell home of the second defendant in July 1987 her daughter Tanya moved with her but after two months she moved out. Her son Mervyn was also resident there for some of that period. Since September 1987 most of the plaintiff's personal and domestic needs have been provided by the second defendant and his mother.

1. The plaintiff has no control over her bladder. The supra pubic catheter comes out of her body and connects with a bag which she wears on the side of her leg. Every night the bag is taken off and sterilized and replaced with an overnight bag which itself is sterilized each morning. She sterilizes the catheter tube and every six weeks changes it. A day bag lasts about three months and a night bag for about a week. She has no normal control over her bowel. Every second night she dons rubber gloves and stimulates rectal emptying. On those nights she also has a shower.

1. On a typical weekday morning she is roused by the second defendant. Initially he worked close to Bothwell and he would wake her at about 6am and provide the assistance I will describe and leave for work at about 7.15am to 7.20am However in early January 1990 he changed his employment and commenced to work for Mr Walter Jones at Ouse. Then in April 1990 his employment changed again and he came to be employed by the Pitts at a farming property on the other side of Ouse. Because it takes him at least an hour to drive to work and sometimes closer to two hours depending on which of the Pitts' properties he is working on, he must rise very early in the morning, usually at 5.30am and sometimes earlier. Over the two week period before the trial he did not rouse the plaintiff and she was assisted in getting up by a woman who came into the house. Mrs Jones senior is elderly and cannot provide assistance requiring strength. Apart from the two week period prior to the trial, the typical weekday involves, as I have said, Mr Jones rousing the plaintiff. He takes her day bag, clothing and water for washing. He places "blueys" (waterproof undersheets) on the bed and rolls her onto them. He takes her night bag out, empties and disinfects it. While the plaintiff washes he goes about his own affairs. Having washed and dried herself the second defendant takes the water out and the plaintiff dresses herself fully. The second defendant passes her clothes to her but she is able to dress herself. The whole procedure from being roused until she is dressed takes her about an hour. The second defendant then puts her wheelchair next to her bed and bodily lifts her into it. She then wheels herself into the kitchen where he gives her a cup of tea and leaves for work. The procedure in the weekend is similar.

1. Evidence was given by the plaintiff that on occasions she has got up without the assistance of the second defendant. She said that this occurred if he left for work at 3am She said she could manage. Mrs Jones provided assistance but as she is 75 years of age, the plaintiff is concerned for her own welfare. For example, if she fell onto the floor she could not pick herself up and Mrs Jones would be physically unable to assist her. If the second defendant is not in the house when the plaintiff gets out of bed she uses a slide board for the transfer from the bed to the wheelchair. Mrs Jones assists her with the transfer which the plaintiff finds difficult.

1. The Jones' house is not well designed for a person in a wheelchair although it is much better than the St Patrick's Plains house. The plaintiff can get her own breakfast but only with great difficulty. Cupboards prevent her from getting under the sink and she has difficulty in getting close to the stove. The wheelchair has badly damaged the cupboards and the stove, the latter being in a corner and therefore causing her great difficulty getting to it conveniently. She is able to wash dishes but once again causes damage to the cupboards which she said, no doubt with exaggeration, have been painted thirty times. She does little cooking because she finds it difficult. I find that she could reasonably do more of such domestic work, particularly if she had a more convenient home.

1. Once she is in her wheelchair she sits in front of the fire for most of the day. She can put wood on the fire but not fetch it from outside. She is unable to chop wood. However she is able to take herself outside on the wheelchair. There is no step at the back–door. She said that there is nothing for her to do outside but look at the graveyard which I presume is nearby. A cement footpath was constructed which enables her to go as far as a shed. There is little that she can do outside. The yard is frequently wet and muddy which, apart from restricting her mobility, causes obvious problems with mud getting onto the wheelchair and herself.

1. The plaintiff owns a Ford Falcon car which has been fitted with hand controls. She is able to drive it. However she is unable to transfer herself from the wheelchair into the car without assistance. When at the Austin Hospital in early February 1987 she was able to transfer herself with the use of a slide board, but she said that when she got home she was only able to effect the transfer unaided on two or three occasions. The level of the seat of the Falcon is lower than the vehicle in Melbourne. This makes it more difficult. She also believes that she has lost some of her strength and I accept this is so. Once she is in the Falcon she is able to fold her wheelchair and place it on the roof with the assistance of a hoist but someone must hook a strap onto it for her. She described getting into the car as taking ten to fifteen minutes and getting out of it taking the same time. She is also the owner of a four wheel drive vehicle fitted with hand controls. Its seat is much higher making unassisted transfers by slide board impossible. She uses the car on bitumen roads and the four wheel drive vehicle mainly on rough roads. For a time she had a four wheel buggy but found that she was unable to balance in it and so she disposed of it. At the end of her journey she is able to bring the wheelchair down from the roof but once again she said she is unable to transfer into it without the assistance of someone else. When transferring from the Falcon to the wheelchair, the wheel is higher and there is a risk if she uses the slide board that she will lose some of her skin on the wheel as she scrapes over it. She thought that if she had a car with a seat at the same height as the chair she would be able to effect a transfer independently using a slide board. For vehicle transfers she has considerable help from the second defendant and also from other friends and relatives. She obviously prefers not to travel on her own in case any problem should happen during the course of her journey. I am satisfied that it is reasonable for her to want someone to be with her when she gets into and out of vehicles and it is also reasonable for her to want someone to travel with her, although on occasions it would not be unreasonable to expect her to travel on her own. It must depend on the reasonable availability of assistance and where she is going.

1. About once a fortnight she travels to Hobart for shopping. She is accompanied and usually meets a friend in Hobart who takes her to the shops. Up to three times a week she goes to the local shop at Bothwell, occasionally on her own. If she sounds the horn a shop assistant will come out to her. The shop is only 300 to 400 metres away from her house and although she could get there by wheelchair she prefers not to do so because she is self conscious about being seen. Her general practitioner visits her at her home particularly because his surgery is not accessible to her in a wheelchair.

1. She attends to her bowel function every second night and so her bed–time routine varies depending on which night it is. She goes to bed at about 8.30 pm to 9.00 pm. On a non–bowel night the second defendant picks her up from her wheelchair and places her fully clothed on "blueys" placed on the bed. He then brings her water, a washer, a towel, disinfectant and her medication. The plaintiff undresses herself and gets into her night–dress after attending to herself. The second defendant said that he generally pulls the blankets up over her at the end of a procedure which takes about ¾ to 1 hour.

1. On bowel nights the procedure takes about 1 to 1½ hours. The second defendant lifts her from her wheelchair onto a commode and wheels her over the toilet. He pulls her bottom clothing down and leaves her with rubber gloves and a blanket to keep her warm. She then stimulates the emptying of her rectum. She is then pushed to the shower, still sitting on the commode. She is helped to undress completely. She could attend to this herself except that she cannot undo a brassiere if it has a fastening at the back. After she has completed her shower someone brings her a towel. She goes to her bedroom and the second defendant lifts her out of the commode onto "blueys" on the bed for the purpose of finishing drying. Every night she dresses the area of the supra pubic catheter with a sterile gauze pad and puts on her nightdress. She does not read.

1. She can only sleep on her side. If she happens to get on her back she cannot get over to her side and calls for assistance. She has an ability to roll over from a position on her side but sometimes she gets out of position on the bed, such as against a wall and she calls for assistance. She needs to roll over two or three times a night and she may call for assistance to get her urine bag from one side to the other. Usually the second defendant provides her with whatever assistance she needs. On an average she needs it about three times a night.

THE PLAINTIFF'S ABILITY FOR INDEPENDENT TRANSFERS

1. There was contention between the first defendant and the plaintiff concerning whether the plaintiff is capable of transferring herself without the assistance of others. The transfers are mainly between bed and wheelchair, wheelchair and commode, commode and bed, wheelchair and car and wheelchair and floor.

1. She has never been able to effect any transfer unaided by a slide board or by another person. When she was discharged from the Austin Hospital in February 1987 she was capable of transferring herself, with the aid of a slide board but without the assistance of another person, in all of the circumstances I have just mentioned with the exception of between wheelchair and floor. However in relation to transfers out of a commode, I accept the evidence of Dr Brown that she could only do that with difficulty.

1. Her ability to effect transfers has diminished particularly because of a reduction in strength brought about by a combination of circumstances. The two houses in which she has lived since February 1987, and the furniture and furnishings in those houses, have deterred her from living as independently as she might otherwise have done with appropriate and convenient facilities. In conjunction with this she has had the services of a loyal and devoted friend, the second defendant. He is strong and has facilitated most of the transfers she requires by simply lifting and moving her bodily. As a result she has become less independent and has lost some of her power, experience and confidence for transfers. She has also lost some power because of a combination of the aging process and a slight weakening of her arm brought about by the spinal cyst.

1. Provided that she uses a bed of the same height as her wheelchair she is presently capable of independent transfers between them. When referring to independent transfers I mean without the assistance of another person but with the aid of a slide board. I find that she is capable of an independent transfer from wheelchair to commode but she is incapable of independent transfer out of the commode and she will not be able to achieve this in the future at all. Her difficulty in transferring from the commode independently is compounded by the fact that the transfer is required following the taking of a shower and being wet, sliding is made extremely difficult. She is presently not capable of independent transfers between her Falcon car and wheelchair and her four wheel drive and wheelchair. However if her vehicle seat was of the same level as her wheelchair, and the vehicle door was sufficiently wide, she could effect such a transfer. It was achievable with a vehicle when she was in Melbourne in early 1987. Notwithstanding that she has that ability, I accept her evidence that she cannot clip her wheelchair to the roof of her vehicle and she will need someone to do that for her. She is not able to transfer from floor to wheelchair, nor will she ever be able to do so satisfactorily. She is naturally concerned that if she falls onto the floor she will need someone to get her up.

1. As she gets older her ability to effect independent transfers will diminish. I accept the evidence of Dr Brown in this regard. More and more she will require the assistance of another person. Eventually she may need special hoists together with the assistance of another for many of the transfers. I cannot make a precise finding, but by the age of 60 years I expect that it would be reasonable for her to want someone to assist her, or to be in attendance, for every transfer.

DAMAGES.

1. Future Equipment And Housing Conversion

1. The plaintiff claims damages for the cost of providing her in the future with light–weight wheelchairs, electric wheelchairs, battery replacements, wheelchair upholstery, wheelchair tyres, wheelchair cushions, a mobile hoist, water–mattresses, a commode, conversion costs to motor vehicles and car hoists. The parties agreed that the assessment of damages in respect of the claim for this future equipment should include $41,245.

1. The plaintiff also claims $25,000 for the cost of converting a house to enable it to be used by her with a wheelchair. The parties agreed that the present day cost of such a conversion would be $25,000 and I find that a reasonable need for it was created by her injuries. It was common ground that $25,000 was in fact spent on the conversion for her of Mr and Mrs Walter Jones' house at Tor Hill, Ouse which was destroyed by fire on 5 March 1988 before she took possession. Of that conversion cost $7,000 was paid by the first defendant and the parties agree that that sum should be included in the assessment, subject to its deduction from the final award of damages pursuant to s.27(1) of the Motor Accidents (Liabilities & Compensation) Act 1973. The plaintiff also claims that the balance of $18,000 should be included in the assessment and the defendants dispute this.

1. Counsel for the defendants submitted in his closing address that the need for the sum of $18,000 was met "from the Commonwealth" and that the defendants were entitled to the benefit of that sum "contributed by the Commonwealth". He submitted that it was in effect a community service provided to the plaintiff where no claim would be made on her by the provider of it, that is to say by the community at large. "So the community through this Commonwealth agency contributed the funds". He submitted that the plaintiff was under no liability to repay the sum. The plaintiff's counsel submitted that the $18,000 "fits into that category of things called a bounty from the Commonwealth". He further submitted that the payment was gratuitously made and accordingly it should be ignored. He conceded that the sum of $7,000 could only be awarded once in the assessed damages and in that regard the destruction of Mr and Mrs Jones' house should be ignored.

1. There was almost no evidence about the matter. The plaintiff said that the work on the Tor Hill house "was being done by the MAIB, the Commonwealth Government, I think". I can recall no other evidence which explains the matter further. It was not explained which Commonwealth department provided the funds nor the legal basis upon which the funds may have been provided, in particular whether or not the plaintiff has a legal liability to repay the money. The whole subject was left up in the air by the evidence. Being satisfied as I am that there was created a reasonable need for the expenditure the sum of $18,000 will be included in the assessment of damages. Nothing has been put before me on behalf of the defendants to persuade me that it should not. The other $7,000 is included under item 12.

1. Accordingly, my assessment will include the sum of $59,245 being a total of the sums of $18,000 and $41,245.

2(a)     Future Medication

1. It was agreed by the parties that the present day value of pharmaceutical products provided to the plaintiff to the time of the trial because of her injuries was $25 per week. Based on a remaining expectation of life of 22 years and applying a 3% discount rate in accordance with Todorovicv Waller (1981) 150 CLR 402 the plaintiff seeks $21,100 under this heading. Counsel for the defendant agreed with the mathematics involved but submitted that $17,500 would be a reasonable allowance. He argued that the sum to be awarded should be reduced to take account of the possibility of a decrease in the plaintiff's needs for medication which might be expected if she manages to improve her strength and body tone with exercise and rehabilitation.

1. Dr Chapman gave evidence that he expected he will be able to wean the plaintiff off Valium once the litigation is over. The evidence of Dr Millingen was that he thought the need for medical treatment would diminish with the end to litigation. But there was other evidence which leads to the conclusion that the plaintiff will require increased medication as she gets older. Dr Chapman's evidence was that with increasing age she will have less resistance to infection and the number of visits to her doctors are likely to increase. Dr Brown was of the opinion that she will probably spend a greater time in hospital towards the end of her life and that the chances are that hospitalization will be more frequent later in life with damage to her kidneys resulting from her paraplegia. He also thought that her need for medical treatment will increase because of the normal decline in reserve functions with increasing age. I accept his evidence that the plaintiff will probably suffer arthritic degeneration in the spine earlier in life than if she had not had the injury. This may result in increased medication.

1. Taking all this evidence into account I find that the sum of $21,100 is a reasonable sum in compensation for the cost of future medication and it will be included in the assessment.

2(b)     Future Cost Of Sterile And Toiletry Items.

1. It was agreed by the parties that the present day value of such products used by the plaintiff because of her injuries is $25 per week. Based on a remaining expectation of life of 22 years with a discount rate of 3% it was agreed that the appropriate sum to be awarded the plaintiff under this heading is $21,100 and it will be included in the assessment.

1. Accordingly, for the cost of medication and sterile and toiletry items in the future the total of $42,200 as claimed will be awarded.

1. Future Hospitalization.

1. It was agreed that the damages should include $149,624 for the cost of future hospitalization.

1. Future Medical Visits

1. It was agreed that because of her injuries the plaintiff will need to attend a general practitioner six times each year at a present charge of $20 per attendance and she will need to attend a specialist medical practitioner twice a year at a present charge of $40 per visit. The plaintiff's counsel submitted that allowance should also be made for ten attendances per year on a physiotherapist at an agreed present charge of $15 per visit. The defendants' counsel submitted that nothing should be allowed for a physiotherapist because any physiotherapy required will be provided in a hospital, the charges for which are included in item 3.

1. The evidence established that the plaintiff will probably need to be admitted to hospital from time to time for chest infections. It also established that while she was in the Austin Hospital she suffered chest infections for which she required physiotherapy and assisted coughing. In a report of Dr Brown which was admitted into evidence he said that there "may be occasions when she will require help of a professional physiotherapist and even hospital admission". That evidence suggests that the chances of an out of hospital physiotherapist being required are real. In cross–examination he was asked whether he would be surprised that nothing had been heard in court of the need for any chest physiotherapy since the plaintiff was discharged from the Douglas Parker Rehabilitation Centre in July 1987. Dr Brown's response was:

"Well you only get it if you need it ... she may not need any for the first 5 or 6 or 8 years, then she might get one bout of infection. She might get it next winter, but its very unpredictable ...".

1. Evidence was also given by Dr Millingen that, having seen the plaintiff in August 1988, he thought that she would require physiotherapy in the future although she was not receiving physiotherapy at that time.

1. The evidence was vague but I infer from what both those specialists said that it is likely that the plaintiff will require out of hospital physiotherapy for chest infections from time to time in the future. An allowance for this should be modest, taking into account that there was comparatively little evidence and the onus of proof rests with the plaintiff. I will allow $550 in this regard.

1. Accordingly, for this item I allow the following:

Charges of a general practitioner based on $120 per

annum and of a specialist on $80 per annum = $3.85 per

week for 22 years agreed life expectancy.  $3,300

Charges for physiotherapy  $ 550

Total:  $3,850

1. Future Travelling Expenses

1. The plaintiff also claimed travelling expenses either for her to attend the relevant doctor or physiotherapist or for the attendance on her. It was agreed that 25 cents per kilometre is the reasonable present day cost of travelling in one's own motor vehicle. It is not known where the plaintiff will be living for the rest of her life. It is likely that she will live in a country area. I will assess this item upon the basis that she will continue to live in Bothwell and that her general practitioner will also live there, but any specialist she will visit will be practising in Hobart and that will involve a round trip of 150 kilometres per visit. I have no evidence of the likely situation of a physiotherapist but it is reasonable to assume that such a person will generally be in the Hobart area and not in the area of Bothwell. I assess $1,900 for this item.

1. Visits By Relatives

1. The plaintiff claims $5,419 for the expenses of her two children and the second defendant incurred when they travelled to Victoria to visit her in the Austin Hospital. There were other similar expenses which are included in item 13 and allowed by agreement. The defendants admitted that $1,419 should be included but their counsel argued that the other $4,000, which was incurred in regards to visits by the second defendant, should be disallowed. In view of my finding that the evidence did not establish that the second defendant was responsible for the plaintiff's injuries, that argument necessarily fails. The defendants' counsel agreed that in such event $4,000 should also be allowed.

1. Accordingly, $5,419 will be included in the damages.

1. Past Travelling Expenses

1. The plaintiff claimed $594 for certain travelling expenses in the past. After pointing out an arithmetical error, counsel for the defendants advised that $592 is admitted. It will be included in the damages.

1. Voluntary Nursing And Other Care In The Past

1. The plaintiff claimed $2,500 for the cost incurred by the second defendant in the months following the accident when travelling from the plaintiff's home at St Patrick's Plains, where he went to reside to care for her children, to his place of employment at Bothwell and return. The arithmetic involved in the claim was particularized in a document as 8 months or 180 days (5 working days each week) at 90 kilometres per day at a cost of 25 cents per kilometre. The daily distance and cost were common ground. The arithmetic was bad. The product of the multiplication is $4,050 and not $2,500.

1. The defendants' counsel submitted that nothing should be awarded because the second defendant was a tortfeasor who caused the need for the services he provided. I have found that he is not liable for the plaintiff's damages as a tortfeasor. Counsel did not submit that nothing should be awarded on any other basis, but argued that the amount should be reduced to 80 days of travel.

1. The evidence revealed that the second defendant spent a week in Melbourne from the Wednesday following the accident. He then lived at the plaintiff's home at her request to look after the children and travelled to work each day to Bothwell. She came home from the Austin Hospital for Christmas and returned to Melbourne on 3 January 1987. From then until she was finally discharged from the hospital on 3 February 1987 he lived at his Bothwell home. Thereafter he lived at her home to assist until her admission to the Royal Hobart Hospital on 10 March. She resided at the Douglas Parker Rehabilitation Centre from 3 to 6 March but I assume that he continued to travel to work from her home each working day during that period. Following her discharge from the Royal Hobart Hospital on 22 May 1987 she resided at the Douglas Parker Rehabilitation Centre, usually from Mondays to Thursdays, from 25 May until 9 July during which time the second defendant resided mainly at her home minding Tanya when the plaintiff was not there and assisting to care for the plaintiff when she was. The evidence was somewhat vague for this period.

1. Allowing for some vagueness, and for public holidays when he would not have been working, I assess this part of the claim upon the basis of 125 days of travel at 90 kilometres per day at a cost of 25 cents per kilometre that is, $2,800.

1. The defendants admitted the plaintiff's claim for $392 in respect of a week spent by the plaintiff's daughter at the Austin Hospital receiving training in the care of her mother.

1. It was admitted that if I reject the argument that the plaintiff's claim for damages for the value of services needed by her and provided by the second defendant should be disallowed because he was a tortfeasor, the damages should include $784 for care provided to the plaintiff in her home between 19 December 1986 and 3 January 1987.

1. Apart from periods when she was resident at the Douglas Parker Rehabilitation Centre, the plaintiff resided at her old home at St Patrick's Plains from 3 February until 10 March 1987 and from 22 May until 9 July 1987 when she finished at the Centre and, because the house had been destroyed by fire, moved into the home of the second defendant and his mother at Bothwell. The days on which she so resided at St Patrick's Plains totalled about 8 weeks. She reasonably needed the services of others in that home as a result of her injuries, in accordance with the principles established by Griffiths v Kerkemeyer (1977) 139 CLR 161. She has based her claim on an hourly rate of $7 for those services and that figure appears to be common ground.

1. The St Patrick's Plains house was most unsuitable for her, confined as she was to a wheelchair. The house was remote being 40 kilometres from the nearest town and about a mile off the highway. Hot water was connected only to the bathroom. Because of steps she had to be carried in and out of the house by two people or at least by a strong person. There was an obvious danger to her if she was left alone. Even the bedroom had a step into it. Outside the house was a rough gravel track over which she needed assistance. There was no inside toilet. Cooking was done on an old wood stove. She could not get close to it. The cooking therefore had to be done by others. She could not independently get out of the house to a clothes–line or to attend to any other chores outside the house. I also take into account that her times at St Patrick's Plains between February and July 1987 followed periods of hospitalization and she would have required for a time extra assistance in the home until she was better able to cope through experience and re–adjustment.

1. During this period she made at least sixteen trips to Hobart or back again to attend the Douglas Parker Rehabilitation Centre and she required the services of someone, usually her son, to drive her. This would have taken 3 or 4 hours of his time on each occasion.

In all these circumstances it is reasonable to allow a sum equivalent to the provision of services for about 8 hours a day for about 8 weeks in all. I will allow $3,000.

1. For the period 9 July 1987 until the trial the plaintiff lived in the home of the second defendant and his mother. Although far from ideal, the house is much better suited for a person confined to a wheelchair than the St Patrick's Plains house. She has needed more care from others at the Bothwell house than she would have needed if she had moved to the Tor Hill house which was altered for her use but which was destroyed by fire on 5 March 1988, just before she intended to occupy it. Counsel for the defendants submitted that the damages to be awarded in accordance with the principles of Griffiths v Kerkemeyer should be assessed upon the basis of the reduced amount of care she would have needed if the Tor Hill fire had not occurred and she had moved into that house.

1. I reject this argument. The Tor Hill house was being made available for her use through the generosity of its owners, Mr and Mrs Walter Jones. The sum of $25,000 to renovate it was made available by $7,000 contributed by the first defendant, and the balance by "the Commonwealth". There is no reason to think that the first defendant made its contribution on any basis other than by way of a payment related to its obligations to pay scheduled benefits under the no fault insurance scheme. There is also no reason to think that "the Commonwealth" was under any obligation to make its contribution and that its payment was other than gratuitous. In these circumstances I am not persuaded that the first defendant is entitled to have the damages reduced upon the basis that the care she has needed as a result of the negligent driving of the deceased would have been less if the largely gratuitous efforts of others had been successful in reducing the need for some of that care.

1. I will assess this element of the plaintiff's damages in this item to the end of this year and upon the basis that until then she will continue to reside in the Jones' house, but thereafter will reside in a house which she will have acquired and adapted so as to make life easier for her. The amount of care she will need will then be reduced, and I will consider that further in item 9.

1. I preferred the evidence of Dr Brown to Dr Millingen. He was an impressive witness and one with considerable experience with spinal injury patients. His evidence was that for personal care at home when rising and going to bed the plaintiff needs someone available for about 2½ hours a day on average. However, for some of the periods totalling that time, constant attention is not required although the availability of an attendant is. In addition to the need for this personal care, she has needed some domestic assistance, although in this regard I find that she could have done more than she has and would have done so if it had not been for the fact that the second defendant and his mother have lived in the same house and have done so much for her. She has also needed assistance when going out in her car, at both ends of a journey, and occasionally during some trips it was reasonable for her to require the company of another. I find that to allow for an average of between 3 and 3½ hours each day for all forms of care while living at the Bothwell house since 9 July 1987 is reasonable as having been required because of her injuries and is a proper basis for assessment of damages. Deducting something for periods during which she was hospitalized over the relevant period I propose to include in the damages the sum of approximately $43,000 which allows for a gradual increase in the relevant hourly rate for the value of assistance from $7 in 1987 to $10 now. Adding the other parts of this item to which I referred earlier, the damages will include a total of $50,000 for nursing and other care provided in the past and until the end of this year.

1. Nursing And Other Care In The Future

1. Damages under this heading will be assessed from the end of this year. Once the plaintiff has moved into a house which has been adapted for her needs she will require less assistance, mainly in relation to domestic work, than she needs at present and significantly less than she has actually been receiving. About 2½ to 3 hours a day is an appropriate amount.

1. But as she grows older more assistance will be required. Life will become more difficult. In this regard I accept the evidence of Dr Brown. Certainly, by the age of 60 she will require significantly more help with tasks such as dressing and undressing, bowel care, transfers and domestic work to the extent that by then extra assistance in the order of an hour a day will be required. This extra need will gradually develop from now until that age. The present agreed cost of such assistance is, as I have said, $10 an hour.

1. For the period from age 65 to the end of her expected life at age 75 she has claimed that she should be awarded a sum based on the agreed current cost of residence in a nursing home, being $477 per week.

1. Dr Brown explained that the physical affects of old age will be felt by her much earlier than in an uninjured person. Her physical independence will decrease earlier. Following the age of 65 the degree of her dependence on others will be far greater. She will need people around a lot more for many personal and domestic tasks. He thought that she might then need to look at special accommodation where meals are provided and someone is available all the time to attend when wanted by her. A cluster housing arrangement with a number of residents who might require assistance at different times of the day might be appropriate. She will become more and more house–bound unless someone is available to take her out. If she stays in her home she may well need someone for 2 hours a day just to prepare meals and do necessary domestic work, and in addition she will need substantial assistance for personal care, trips away from the home, shopping and management of her financial and other affairs. Without some satisfactory arrangement being made, a nursing home will be the only alternative. Clearly, the plaintiff would prefer not to be admitted to a nursing home.

1. Allowing for periods of hospitalization, for which damages are assessed elsewhere, I propose to include in the damages for future care a present day cost of about $360 per week, for the years between the ages of 65 and 75. This is a figure arrived at as representing a fair assessment of the reasonable cost of satisfying her needs created by her injuries, also taking into account contingencies such as the chance that notwithstanding her injuries she may have needed assistance in her old age in any event.

1. Upon the basis explained $230,000 will be included in the damages for the value of nursing and other care needed by her in the future.

1. Lost Earning Capacity And Related Benefits

1. In the year leading to the accident the plaintiff was in receipt of certain income from her employer, Mr Ellis, and earned certain benefits from her right to occupy his St Patrick's Plains property and its house. The annual value of her financial relationship with Mr Ellis was as follows. The figures in brackets are the adjusted values of the items in October 1990, the date of the trial, fixed either because they were agreed by the parties or because there was no evidence of change.

Direct income for 35 to 40 days of casual work

at $52 per day ($80).  $2,000    ($3,200)

Additional payment for use of her horses, dogs,

vehicle and equipment.  $ 800    ($ 800)

Value of free accommodation at $25 per

week ($40).  $1,300    ($2,080)

Value of possum and wallaby skins gained and

sold.  $1,000    (nil)

Value of 6 to 8 sheep given to her by Mr Ellis

each year for consumption by her and her children.         $ 175    ($ 210)

Sales of eggs produced.  $ 180    ($ 180)

Value of eggs produced for consumption by her

and her children.  $ 60    ($ 60)

Sale of butter and milk produced  $ 64    ($ 64)

Value of milk produced for consumption by her

and her children.  $ 84    ($ 84)

Value of butter produced for consumption by her

and her children.  $ 72    ($ 72)

Value of vegetables produced for consumption by

her and her children.  $ 975    ($ 975)

Value of pigs produced for consumption by her

and her children.  $ 300    ($ 420)

Value of fowls produced for consumption by her

and her children.  $ 120    ($ 120)

Value of ducks produced for consumption by her

and her children.  $ 120    ($ 120)

Value of 1 calf produced for consumption by her

and her children.  $ 300    ($ 400)

Value of firewood for cooking and heating,

regardless of whether or not the children were

living with her.  $ 480    ($ 480)

$8,030    ($9,265)

Less expenses incurred in gaining that income

as agreed.  $4,183   ($4,183)

  

$3,847    ($5,082)

1. The plaintiff's counsel argued that most of the expenses were incurred by her in pursuit of her "hobby" of hunting possums and wallabies and in maintaining a lifestyle which gave her pleasure. On this basis he submitted that she should be allowed credit for the above income and benefits without deduction of expenses. I reject this argument. Under this item of damages the court's task is to assess the value of her lost earning capacity with the object of awarding her a sum of money to compensate her for the financial loss she has suffered as a result of her injuries. Whether or not she enjoyed the activities which gained her income is irrelevant. The injuries have deprived her of the gross income and have also saved her the expenses. It is reasonable that she should give credit for them. The loss of her ability to enjoy life in certain respects falls to be reflected in the award of general damages for loss of the amenities of life.

1. The starting point is therefore about $3,850 per annum nett financial benefit from the plaintiff's financial relationship with Mr Ellis.

1. At the time of the accident her son had commenced employment. Her daughter was still at school, but within about a year she was also in employment and both children had left home. By that time there was no need for her to produce so much food for household consumption, and she would not have done so. No claim has been made that she would have kept up production and increased the amount of food sold. It should also be taken into account that the market for animal skins has fallen, and that expenses in gaining them would probably have fallen also as a result. Skins are virtually valueless at present although the plaintiff believes that the "Green" influence will wane and the market will recover one day.

1. Disregarding for now the plaintiff's claim with which I will deal shortly, that once the children were off her hands she could have sought full time employment, I assess the value of her financial loss for the period of almost five years since the accident at $16,000.

1. I have disregarded the fact that the house at St Patrick's Plains was destroyed by fire in July 1987. No point was made by either counsel in this regard and I have inferred from the way the case was conducted that it should be assumed that the fire would not have occurred if the plaintiff had not been injured and had not been at the Douglas Parker Rehabilitation Centre on the night of it.

1. The plaintiff gave evidence that once the children had grown up she would definitely have gone back to full time shepherding work. It would logically follow from her evidence that in about September 1987 she would have commenced to search for full time work, although she did not expressly say so and her counsel submitted that damages should be assessed upon the basis that she would have worked full time from January 1990, without explaining why he chose that date. In cross–examination she said that she did not have a lot of money when living at St Patrick's Plains, but she had a lot of fun. She had enough to get by and loved the lifestyle. She would have liked to continue to lead that lifestyle for the rest of her life. If the accident had not occurred she might possibly have remained at St Patrick's Plains and picked up more casual work in the area. She was positive that she would have done extra work once the children had left home, and she would have been prepared to move away from St Patrick's Plains if a full time job elsewhere had become available.

1. Evidence was called by the plaintiff, particularly from Mr Dickinson, by which she established that full time shepherding work becomes available from time to time in different places in Tasmania, including the general area of Bothwell and the Lake Country.

1. The effect of Mr Ellis' evidence was that the amount of casual work available at St Patrick's Plains was likely to gradually increase. He has begun to develop land thereby increasing the carrying capacity. If he develops more land and reaches the stage of wintering 4,000 sheep there he will build a shearing shed on the property and shortly after that a house. Then the shepherd's work will become a full time job. Whether this eventuates will depend on wool prices and he said it is probably five years away. He had intended to develop a new run in the 19901991 summer, but had decided instead to put the project on hold until he saw what happened with the wool industry. I take judicial notice that since he gave evidence the wool industry has become more depressed and there has been a general reduction in stock numbers. The likelihood of full time work becoming available at St Patrick's Plains is therefore reduced.

1. The defendants' counsel submitted that the plaintiff's claimed intention to look for full time work was a recent invention. In answer to interrogatories sworn in February 1989 she explained the terms and conditions upon which she had occupied the St Patrick's Plains house and said that it had been her intention to continue living on the property, subject to those terms and conditions, for the rest of her life. Particulars of her claim delivered by her solicitors to the defendants' solicitors in 1988 claimed a loss of income in the future commensurate with a continuation of her previous lifestyle, but in relation to those particulars they were plainly not thought out for they did not include references to what Mr Ellis had been paying her, nor to the value of food produced on the property. In August 1990, less than two months prior to the trial, more comprehensive particulars of the claim were supplied, showing a much larger claim, but even then the basis for the claim for loss of future income was the income and other benefits gained prior to the accident.

1. Her son Mervyn Duncan, gave some evidence about his mother's expression of her future intentions when he was a boy. It was not conclusive and it was consistent with an expression of an intention to remain at St Patrick's Plains and to continue with the same volume of shepherding work.

1. I am not persuaded that the plaintiff would have actively sought full time shepherding work for the period commencing in September 1987. To do so she would probably have needed to move off St Patrick's Plains. If it had been her intention to seek such work only a year or so after the accident, I would have expected a positive claim to have been made on that basis well before it was made. But I am persuaded that sometime after the last child left home she would have become dissatisfied with life at St Patrick's Plains without more to do. Even if the second defendant had gone to live with her there, she would have had the days to herself, including school holidays, with little to do. She was an active and healthy woman who enjoyed work as a shepherdess and I do not believe she would have been content to be so idle as to work on only 40 days a year. But it is also my assessment that enjoyment of her lifestyle was more important to her than earning a significant income.

1. It was agreed that in October 1990 a shepherd's wages amounted to $317 per week gross and $265 per week nett. If a house was provided by the employer its value was agreed at $40 per week. Some meat, firewood and some other benefits might also be provided. Of course a shepherd would not necessarily live on the employer's property.

1. There was also evidence that some shepherds continue in employment past the age of 65 years.

1. It is not possible to assess damages under this head with any precision. I propose to allow $125,000 for her lost earning capacity and related benefits.

1. Miscellaneous Special Damages

1. The plaintiff claims $437 for the following items:

Royal Hobart Hospital  $ 33

Douglas Parker Rehabilitation Centre  $180

Vic Ambulance  $224

1. The defendants' counsel stated that this amount is admitted and accordingly it will be included in the damages.

1. Special Damages Paid By The First Defendant

1. It was agreed by counsel that the first defendant paid by way of scheduled benefits special damages totalling $41,322 and that sum should be included in the assessment of damages. It includes the sum of $7,000 referred to in item 1 above.

1. Pain, Suffering And Loss Of Amenities

1. Facts relevant to this aspect have been sufficiently stated. I take into account her age at the time of her injuries and particularly the impact of them on a person whose life was so physically orientated and who can only "just" read. The damages will include for this item $90,000.

SUMMARY

1. The assessment of damages is:

1       Future equipment and housing conversion  $ 59,245

2       Future medication, sterile and toiletry items  $ 42,200

3       Future hospitalization  $149,624

4       Future medical visits  $ 3,850

5       Future travelling expenses  $ 1,900

6       Visits by relatives  $ 5,419

7       Past travelling expenses  $ 592

8       Voluntary nursing and other care in the past  $ 50,000

9       Nursing and other care in the future  $230,000

10     Lost earning capacity and related benefits  $125,000

11     Miscellaneous special damages  $ 437

12     Special damages paid by the first defendant  $ 41,322

13     Pain, suffering and loss of amenities  $ 90,000

Total  $799,589

90% after contributory negligence  $719,630

Less scheduled benefits paid by the first

defendant and to be deducted pursuant

to s27(1) of the Motor Accidents
(Liabilities and Compensation) Act 1973  $ 41,322

Total  $678,308

1. There will be judgment for the plaintiff against the first defendant for $678,308. There will be judgment for the second defendant against the plaintiff.