Scicluna v Harris

[2018] NSWDC 51

District Court

New South Wales

Medium Neutral Citation:

Scicluna v Harris [2018] NSWDC 51

Hearing dates:

5, 6, 7 and 8 March 2018

Date of orders:

16 March 2018

Decision date:

16 March 2018

Jurisdiction:

Civil

Before:

Judge D. Russell

Decision:

(1)   Judgment for the plaintiff for $38,258.33.
(2)   Order the defendant to pay the plaintiff’s costs.

Catchwords:

NEGLIGENCE – collision between car turning right and motor cycle overtaking car

 

CONTRIBUTORY NEGLIGENCE – apportionment of responsibility – standard of care that of a reasonable person – degree of departure from standard of care

 

DAMAGES – no evidence to support particulars of economic loss – past and future economic loss – buffer

  EVIDENCE – use of and reliance upon video evidence – weight to be given to video evidence – nature and quality to be taken into account

Legislation Cited:

Motor Accidents Compensation Act 1999
Civil Liability Act 2002

Cases Cited:

Herne Investments (NSW) Pty Limited v Don Watson Pty Limited [2016] NSWCA 72
Penrith City Council v Parks [2004] NSWCA 201
Allianz Australia Insurance Limited v Kerr [2012] NSWCA 13
Pennington v Norris (1956) 96 CLR 10

Category:

Principal judgment

Parties:

Gary Scicluna (plaintiff)
Paul Gregory Harris (defendant)

Representation:

Counsel:
P. Webb QC, R. Di Michiel (plaintiff)
W. Fitzsimmons, M. Nesbeth (defendant)

  Solicitors:
Premier Compensation Lawyers (plaintiff)
Hall & Wilcox (defendant)

File Number(s):

2015/319648

Judgment

INTRODUCTION

1. On 29 June 2014 a motor cycle ridden by the plaintiff collided with a car driven by the defendant. The accident occurred on Yarramundi Lane at Agnes Banks. Both vehicles were travelling south. The car was in the process of turning right into the driveway of a fruit stall. The motor cycle was in the process of overtaking the car.

2. By a Statement of Claim dated 30 October 2015 the plaintiff sued the defendant for damages. The claim is governed by the provisions of the Motor Accidents Compensation Act 1999. The defendant disputed that he was negligent, and in the alternative alleged that the plaintiff was guilty of contributory negligence.

EVIDENCE OF THE PLAINTIFF

3. The plaintiff was born on 5 July 1959. He grew up in Sydney and attended Riverstone High School until the age of 15. He then worked in the pest control industry. He was married quite young and there were two girls of that marriage, which broke down very quickly.

4. He drove plant and equipment and obtained tickets to operate heavy machinery.

5. On a date which is unknown the plaintiff got into trouble with the law. He received a sentence of seven years, with a non-parole period of four years, for manufacturing amphetamines. He went to gaol. After he came out of gaol he moved to Queensland.

6. There he met a man named Mr Knipe who ran a company called Bali Pools. Mr Knipe taught him the work involved in the swimming pool industry. The plaintiff started out as a labourer, then became a supervisor and finished up as the manager. He did work on the tools including steel fixing and plumbing. He also dealt with clients.

7. After leaving Bali Pools the plaintiff started working for Mr Cannon in his business of Malibu Pools in Brisbane. Within a short time the plaintiff became a partner with Mr Cannon. He paid about $350,000 to buy a half share in the partnership. Mr Cannon became ill and the plaintiff bought the other half of the business for about $150,000.

8. While he was the proprietor of the business, he spent about 50% of his time on administration and dealing with clients, and the other 50% working on site and on the tools.

9. About six to twelve months before the motor cycle accident he started a relationship with Ms Ann Hennessy.

10. On the day of the accident the plaintiff was riding his motor cycle south on Yarramundi Lane at Agnes Banks. Ms Hennessy was a pillion passenger on the vehicle. This was a narrow two-lane road (one in either direction) through a rural area. On the left (east) was a sporting field and on the right (west) was an orange orchard.

11. As he rode south he approached the intersection of Inalls Lane, which ran off to his left, forming a T-intersection with Yarramundi Lane. In front of the plaintiff was another motor cycle, ridden by his second cousin Mr Luke Scicluna, then a utility driven by Mr Tyrrell, and in front a Mercedes car driven by the defendant.

12. The plaintiff gave evidence that as the Mercedes approached Inalls lane, it had a left blinker on and it slowed down. At that point the plaintiff proceeded to overtake all three vehicles in front of him – the motor cycle ridden by Luke Scicluna, the utility and the Mercedes. The plaintiff gave evidence that the Mercedes, instead of turning left as was indicated, turned right into the fruit stall. The plaintiff by that time was riding his motor cycle in the northbound lane, and was in the process of overtaking all three vehicles.

13. The plaintiff hit the rear quarter panel of the Mercedes and flew up the road. He somersaulted and eventually landed on his feet. He was injured and could not stand up. An ambulance came and took him to Westmead Hospital. He there had surgery for some fractures.

14. The plaintiff then left hospital after a couple of days and stayed at Werrington at Ms Hennessey’s residence. The couple then went back to Queensland, where the plaintiff had been living for some time before the accident.

15. The plaintiff gave evidence that after the accident he did not perform any work associated with the business of Malibu Pools. He went to the office just a few times to see what was going on. He said that he could not do any of the physical work in the business. He said that he did not do any other work such as administration or selling. Mr Sean Lynch was the salesman for the business, and he was promoted to be the manager. Mr Lynch did not work out and he was replaced.

16. The plaintiff said that he got into more trouble with the law after the accident for “smoking pot”. The plaintiff gave evidence that a few months after the accident he and Ms Hennessey decided to purchase rural land near Mudgee. They initially purchased a 50 acre property at Green Gully and lived in a shed on the property. They then purchased a 250 acre property, some 30 kilometres away from Green Gully, and lived in a house on the property. He started mixed farming on the land. He ran cattle and planted oats. He bought a tractor and did a variety of work on the property including plumbing, fencing and looking after the cattle.

17. The only evidence the plaintiff gave as to his ongoing problems caused by the accident was as follows (T 23/5-29):

“Q. Are you still having physical problems?

A. Physical.

Q. Yeah.

A. Pain?

Q. Well you had injuries to your shoulders and your

A. Yeah, I can't lift me arms up.

Q. feet and your wrists.

A. Yep, and me hands hurt when it's cold. They hurt normally. My shoulders hurt when I lift up above my head.

Q. But when you're working on the farm, you have the opportunity to suit yourself about how many hours you work?

A. That's correct.

Q. Do you think you've arrived at a time where you could go back to doing the heavy work involved in pool construction?

A. No, not at all.”

18. The plaintiff was cross-examined firstly about liability matters. He was taken to a copy of the claim form, which he signed to declare as correct. He was cross-examined about a diagram in the claim form, which showed the Mercedes doing a U-turn in the mouth of Inalls Lane. The plaintiff acknowledged that the diagram was wrong. He also acknowledged that there was no utility drawn in that diagram. He also acknowledged that the diagram was incorrect, because it showed the impact occurring in the southbound lane, whereas the plaintiff said it happened in the northbound lane when he was in the process of overtaking the three vehicles.

19. He was cross-examined about the description of the accident in the claim form and acknowledged that it was not correct in that it did not make any mention of the utility.

20. The plaintiff was then cross-examined about a statement taken by a police officer on 9 October 2014. The statement is in the usual handwritten question and answer form. It is signed by the plaintiff. In the police statement he said that the car he eventually hit was pulled over on the left-hand side of the road. The plaintiff explained in cross-examination that it might have been pulling over, but he did not know. The plaintiff acknowledged that everything he had told the police officer was the truth. However, later in the cross-examination he said that the police wrote it down wrong and he signed a wrong statement unintentionally (T 34/2). Agreement was reached between counsel for the parties that there was no need to call the police officer, as senior counsel for the plaintiff accepted that the plaintiff had acknowledged the accuracy of what was written in the police notebook.

21. To the police officer the plaintiff had said that he did not know whether the Mercedes had its right hand indicator on. The plaintiff had given oral evidence that the indicator was not on, but he said that this came not from a memory of the day, but from looking at the CCTV footage of the accident. The plaintiff was adamant that he had seen a left-hand blinker on the Mercedes prior to the accident. The plaintiff acknowledged that the accident happened as the Mercedes was turning into the fruit stall on the right-hand side of the road.

22. Again the plaintiff was asked why he signed the police notebook if he was now saying that the version was not true and correct. He replied (T 39/42):

“No, because I really didn’t give a shit. I just wanted to get my bike fixed.”

23. The plaintiff said that he was probably travelling at about 70 kilometres per hour in a 60 kilometre per hour zone, as he had to go a bit faster to get around the three vehicles.

24. The plaintiff was then cross-examined about damages. The plaintiff said that he undertook fencing on the property and looked after sheep (when he had them) and cattle. He drenched cattle and horses on the property. He used a tractor to do ploughing and sowing. Both of these tasks required 20kg bags of material to be lifted by hand into spreaders attached to the rear of the tractor.

25. The plaintiff repeated that he had only been to the office of Malibu Pools a couple of times since the accident. He accepted he was capable of doing physical work on the farm. He accepted he was capable of doing managerial work. He said that he was capable of going out and getting quotes. He accepted he was capable of going out and supervising jobs. He accepted he was capable of going out and seeking work through advertising. He accepted he was capable of doing plumbing work (T 50/1-36).

26. The plaintiff agreed that he had been doing renovation work on his house at Mudgee by assisting a builder. The plaintiff had been involved in putting a frame up, affixing gyprock, affixing cladding, doing plumbing and assisting with additional roofing.

27. The plaintiff was then cross-examined about his injuries and disabilities. He accepted that from time to time before the accident he suffered from back pain. In April 2013 he attended his GP on the Gold Coast and gave a history of a disc protrusion some time before. He told the doctor that he had pain radiating down to the buttocks and also occasional pins and needles, tingling and numbness in the left foot after walking. He was treated with acupuncture. On 3 May 2013 the plaintiff returned to his GP complaining of lower back pain and was referred for an x-ray. In December 2013 he attended for another flare-up of lower back pain and was given acupuncture treatment twice in that month.

28. The plaintiff next saw the GP after he returned to the Gold Coast following the accident. On 18 July 2014 he had acupuncture to his lower back. On 24 July 2014 he attended for a right hamstring strain which the plaintiff said happened in the accident.

29. In August 2014 the plaintiff attended his GP who noted that he had “new” back pain. The plaintiff said that straight after he came out of Westmead Hospital he had seen a doctor at Werrington in Sydney. There was no report from that doctor.

30. The plaintiff was taken to a Discharge Summary from Westmead Hospital, which recorded that on discharge there was a full range of motion in the neck and the back, with no tenderness in either location. The plaintiff explained that when he was in hospital he was more concerned about the welfare of his partner Ms Hennessey.

31. The plaintiff said that he still had back pain now and had had it since the accident. It went down into his left hip and down his leg. He said it was why he attended a chiropractor in Mudgee for treatment. There was no report from that chiropractor.

32. The plaintiff acknowledged that he had three days in prison in October 2015 and three months in prison between October and December 2016. The detail of offences he committed were not really explored in the evidence. The plaintiff suffered a heart attack just before going into prison in October 2016. This was treated with a stent. In prison he was given medication for his heart condition, and also non-prescription pain medication.

33. On release from prison he was subject to supervision by the Probation and Parole Service. In September 2017 he told them that he was going well and that the farm was keeping him busy. There was a similar report to the Service in October 2017.

34. The plaintiff was asked about the financial records of Malibu Pools. He said that he was familiar with the finances and financial records of the business.

35. The demeanour of the plaintiff in the witness box was argumentative and combative. However, as senior counsel for the plaintiff submitted, this did not affect his credibility. Indeed, no attack was made on the plaintiff’s credibility by counsel for the defendant, no doubt because the plaintiff was quite frank in accepting the physical tasks which he has been and is capable of. Further, there was so little actual evidence given by the plaintiff about his disabilities, and none given concerning the financial position of Malibu Pools, that counsel for the defendant was no doubt content to leave the evidence as it stood at the end of the examination-in-chief.

36. I accept the plaintiff in relation to his pains and problems, and his abilities at various times to do physical work. In relation to the accident itself, for reasons set out below I accept the evidence of the plaintiff that the Mercedes did put its left-hand indicator on before Inalls Lane. For reasons set out below I do not accept the plaintiff in his evidence that there was no right-hand indicator light on the Mercedes just before the turn into the fruit stall. For reasons set out below I prefer the evidence of Mr Luke Scicluna, to the effect that Mr Luke Scicluna was the first bike to overtake the utility and the car, and he was followed in this overtaking manoeuvre by the plaintiff.

EVIDENCE OF MR LUKE SCICLUNA

37. Mr Luke Scicluna was riding his motor cycle south in Yarramundi Lane, ahead of the plaintiff’s motor cycle. In front of Mr Luke Scicluna was a utility and then a Mercedes. He gave evidence that the Mercedes was indicating to turn left. When he saw this, Mr Luke Scicluna decided to overtake. He pulled out to overtake but the Mercedes did not turn left. The Mercedes drove past the T-intersection of Inalls Lane, drove further south and then turned right into the fruit stall. By this stage both motor cycles were overtaking in the northbound lane.

38. Mr Luke Scicluna locked up his brakes and veered to the right to get away from the car. He saw the Mercedes start to turn right but did not see any indicator light on the vehicle. His attention was drawn to the car by it turning right across his path. He managed to stop without colliding with the Mercedes. He stopped just at the driveway entry to the fruit stall.

39. In cross-examination he said that the Mercedes slowed to turn left but then went straight ahead. The Mercedes did not pull to the left side of the road or partly turn into Inalls lane, nor did it do a U-turn. Mr Scicluna saw the left-hand indicator on the Mercedes on, so he assumed that the car was turning left into Inalls lane. Instead, the Mercedes drove straight ahead down the road.

40. Mr Luke Scicluna said that he pulled out to overtake and the plaintiff pulled out to overtake as well, but stayed behind him during the overtaking manoeuvre. Mr Luke Scicluna braked his motor cycle, but the plaintiff went past him and hit the Mercedes. The plaintiff’s motor cycle arrived at the point of impact with the Mercedes at some speed, but by this stage Mr Luke Scicluna had almost slowed his motor cycle to a stop. He denied that the plaintiff had been the leading motor cycle in the overtaking maneouvre.

41. In cross-examination Mr Luke Scicluna was shown the CCTV footage. He acknowledged that he was bringing his bike to a stop just before the driveway, when the impact occurred between the Mercedes and the motor cycle ridden by the plaintiff. He had observed that while the Mercedes had indicated to go left, it did not turn into Inalls Lane and instead proceeded further south on Yarramundi Lane on the southern side of the Inalls Lane intersection. The Mercedes then turn right into the fruit stall. When shown the CCTV, the witness accepted that there was only a bit more than a second between when the Mercedes started to turn and when the impact occurred. In cross-examination the witness denied that the Mercedes had its right indicator on.

42. Mr Luke Scicluna gave his evidence in a disarmingly frank fashion. I accept his evidence that the Mercedes put on a left-hand indicator before Inalls Lane. I accept his evidence that he was the first bike to attempt the overtaking manoeuvre and I accept his evidence about his bike braking sharply and thus avoiding a collision with the Mercedes. I do not accept his evidence about there being no right-hand indicator on the Mercedes, for reasons set out below.

43. My reasons for accepting that he was the first bike in the overtaking manoeuvre include matters I have discerned from viewing the CCTV footage, which is dealt with below. My reasons also include the fact that while the plaintiff says that he pulled out to overtake Luke, the utility and the Mercedes, Mr Tyrrell (referred to below) looked and saw two bikes overtaking his utility.

44. Counsel for the defendant did submit that Mr Luke Scicluna should not be accepted at all in relation to his evidence that he was part of an overtaking manoeuvre. The defendant submitted that Luke Scicluna’s motor cycle remained at all times behind the utility in the southbound lane. That simply does not accord with the evidence of Mr Tyrrell (dealt with below) who I accept. Further, the proposition that Mr Luke Scicluna was wrong in his evidence that he was part of the overtaking manoeuvre was never put to him in cross-examination.

EVIDENCE OF MR TYRRELL

45. Mr Steven Tyrrell was driving his utility south in Yarramundi Lane and was a witness to the accident. He was driving directly behind the defendant’s Mercedes. Behind Mr Tyrrell, but unknown to him for most of the journey down Yarramundi Lane, were the two motor cycles ridden by the plaintiff and Mr Luke Scicluna.

46. Mr Tyrrell could not in his oral evidence recall the Mercedes having its left-hand indicator on as it approached the intersection with Inalls Lane. However, he made a statement to police in February 2015, and told the police that the left-hand indicator of the Mercedes was on as the vehicle approached Inalls Lane. He said that while he could not remember this in the witness box, his memory at the time of giving the statement to the police was better. In relation to the left-hand indicator he said in that statement:

“The silver sedan put its left indicator on as if he was turning into Inalls Lane Agnes Banks. The driver must have changed his mind because he turned his indicator off and continued to drive approximately 20 metres south. The silver sedan indicated to turn right into the driveway of an Orange Farm.”

47. In the witness box Mr Tyrrell said that he could still remember the right-hand indicator on the car in front being on. He said that the light came on just before the car turned right. The car in front slowed down and so did Mr Tyrrell. He then heard the noise of the motor cycles and the impact. He said that he did not have to lock the wheels up to slow down behind the car in front.

48. Mr Tyrrell said that the car in front did not change its direction of travel, in the sense that it did not pull to the left, and it simply continued straight down the road past the intersection with Inalls Lane.

49. In his statement to the police Mr Tyrrell said:

“I heard the revving of motor cycle engines and I looked over my right shoulder and I could see two motor cycles overtaking me. I hit my brakes and I saw the first motor cycle attempted to swerve left between the turning silver sedan and my vehicle. He only just clipped the rear of the silver sedan. The motor cycle rider got thrown from his bicycle [sic] approximately 10-15 metres.”

50. I accept the evidence of Mr Tyrrell. In the witness box he appeared to me to be a very careful person, and he was scrupulous in making clear what he could say from his memory, as opposed to what he had said to the police officer in a much earlier statement. I accept that his memory of the event was better when he gave his police statement.

51. I therefore specifically accept his evidence that the Mercedes had its left-hand indicator on as it approached the intersection with Inalls Lane. I accept his evidence that the Mercedes proceeded straight ahead and never swerved or pulled to the left. I accept his evidence that the Mercedes did have a right hand indicator on just before the turn into the fruit stall. I accept his evidence that there were two motor cycles overtaking him.

52. The only part of his evidence as to which I have reservations concern that part of his police statement where he says that it was “the first motor cycle” who clipped the rear of the Mercedes. For reasons I have discerned from viewing the CCTV footage, I propose to find that Mr Luke Scicluna was initially in front during the overtaking manoeuvre, followed by the plaintiff, but that the plaintiff went past Mr Luke Scicluna immediately before the collision with the Mercedes. I will deal with that more fully below when considering the CCTV footage.

EVIDENCE OF THE DEFENDANT

53. The defendant Mr Harris gave evidence. He was the driver of a Mercedes motor vehicle and his wife was the passenger. The couple were returning from a weekend in Mudgee and heading towards their home in Cranebrook. Their normal course would have taken them along Yarramundi Lane and left into Inalls Lane. The defendant said that as the car was approaching Inalls Lane he decided to go straight through to the fruit stall a bit further down the road. He thought that the stall was about 50-100 metres further on.

54. The defendant said that he signalled, checked in his side mirror and proceeded to turn. As he had almost completed the turn into the driveway he heard a massive thud at the back of the car. He proceeded slowly further into the yard of the fruit stall. He got out of the car and saw two people on the road and a motor cycle. He could not recall how far before he started to turn that he put his right indicator on. He said that he was going reasonably slowly because he was looking for the driveway.

55. In cross-examination the defendant was asked whether he put his left-hand indicator on and he said he could not say one way or the other, but he thought if he did put it on it would have been only briefly. He was cross-examined about a statement in a police notebook which indicated that the headlights of the Mercedes were on. He said that he could not recall saying that to the police woman, but the Mercedes had automatic headlights and also had some sort of front lights which are on automatically all the time.

56. I accept the defendant as a credible witness. He too appeared to be a person who was careful in relation to giving his evidence. He acknowledged that he could not say one way or the other whether he ever put the left-hand indicator on to indicate an intention to turn into Inalls Lane.

57. I accept his evidence about the right-hand indicator being on, and also his evidence about, at least, the running lights on the front being automatically on.

EVIDENCE OF MRS HARRIS

58. Mrs Harris was a passenger in the Mercedes car driven by her husband. She thought that there was a discussion several hundred metres before the Inalls Lane intersection, to the effect that the couple would go to the fruit stall and not left into Inalls Lane. She said that after the car passed the T-intersection with Inalls Lane, she observed her husband to put on the right-hand blinker. In a Mercedes the indicator stalk is on the passenger side of the steering wheel. She then heard a big bang and the car was hit. She did not see her husband put on the left-hand indicator at any stage.

59. I accept the evidence of Mrs Harris as truthful and accurate. She too took care in the way she gave her evidence and did not overstate matters. However, I prefer the evidence of other witnesses concerning the left turn indicator.

THE CCTV FOOTAGE

60. The plaintiff tendered contemporaneous vision of the accident occurring. The Mercedes was turning into the fruit stall on the western side of Yarramundi Lane. Inside that property and looking out towards the driveway of the fruit stall, and the roadway beyond, was a CCTV camera. Police who attended the scene took a mobile phone video of 13 seconds of the CCTV footage, which they had viewed at the scene of the accident.

61. The 13 seconds of vision tendered is not of high quality, as it is a mobile phone recording of the original footage. For the first six seconds of the footage nothing relevant happens. Then the Mercedes comes into view from the left-hand side of the screen and commences a right-hand turn into the fruit stall. The plaintiff’s motor cycle enters from the left of the screen at relatively high speed and the front of the motor cycle collides with the right rear corner of the Mercedes. Almost at the time when the impact occurs between motor cycle and car, two vehicles emerge from the left-hand side of the screen. The first is the motor cycle ridden by Mr Luke Scicluna. It is travelling at a very low speed and is well across the northbound lane of Yarramundi Lane. His motor cycle rides onto the dirt shoulder on the western side of Yarramundi Lane. The other vehicle which emerges on the left is the utility driven by Mr Tyrrell. It stops adjacent to and east of the motor cycle of the plaintiff, which itself has fallen over roughly at the point of impact.

62. The plaintiff can be seen travelling through the air off the front of the motor cycle and over the boot of the Mercedes down to the eastern side of the road. He quickly stands up after he has come to rest. There was a pillion passenger on the motor cycle, Ms Ann Hennessey, but it is well-nigh impossible to see her at any point of the footage.

63. The submission for the plaintiff is that the footage does not show any indicator light blinking on the right-hand side of the Mercedes and nor does the footage show the headlights of the Mercedes being on.

64. There are several problems in discerning fine detail from the footage. The first is that it is of very poor quality. The second is that when the Mercedes makes its right-hand turn, the sun is shining off the paintwork on the front right-hand corner of the Mercedes, which is where one would expect to see an indicator light. The quality and clarity of the footage is so poor that in spite of viewing it many times, I have been unable to confidently discern the body of the pillion passenger, either at the point of impact or when she must have ultimately come to rest, presumably somewhere down the road.

65. In those circumstances I do not find that the footage has anything to say, one way or the other, about whether any lights of the Mercedes were on at the time it made the right-hand turn.

66. A Court of Appeal case which concerned contemporaneous video footage taken from a vehicle was Herne Investments (NSW) Pty Limited v Don Watson Pty Limited [2016] NSWCA 72.

67. At para 42 of that judgment Acting Justice Sackville said:

“The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved.” [Emphasis added]

68. In that case the members of the Court of Appeal were invited to view the video and draw their own conclusions from the footage. That is the approach which I have taken. I declined during the running of the trial to permit witnesses to say what they thought they saw or did not see in the footage. I did receive submissions from both counsel as to what the footage did or did not show.

69. The Court of Appeal in that case referred to the difficulty they had after viewing the footage. They could not discern whether one vehicle was gaining ground on another, and they could not discern the speed at which each vehicle was travelling.

70. I have a problem of the same sort in the present case. I cannot discern from the footage whether or not the Mercedes had its right-hand indicator on as it made the turn. I cannot discern from the footage whether or not the front lights of the Mercedes were on as it made the turn. This is in spite of the defendant giving unchallenged evidence that the Mercedes always had running lights of some sort illuminated.

71. However, as indistinct as the footage is, I can discern that the motor cycle ridden by Mr Luke Scicluna arrived outside the fruit stall travelling at a relatively low speed, at a point where it was in the northbound lane, almost at the edge of the dirt shoulder.

72. There was conflict between the plaintiff and Mr Luke Scicluna, in the sense that the plaintiff said that he pulled out to overtake Luke, the utility and the Mercedes, whereas Mr Luke Scicluna said that he was the first bike to pull out and the plaintiff pulled out to overtake but followed him down the road.

73. What is clear from the CCTV footage is that the plaintiff arrived at the point of impact at great speed, but that Mr Luke Scicluna had substantially slowed his motor cycle so that it was almost at a halt when it emerged on the left-hand side of the CCTV vision. From this I infer that Mr Luke Scicluna was travelling in front and slowed his motor cycle substantially, and that the plaintiff in effect “overtook” Mr Luke Scicluna without slowing his speed. Mr Luke Scicluna was by that stage near the western edge of the road, so the “overtaking” by the plaintiff was on Mr Luke Scicluna’s inside, in other words to the left of Mr Luke Scicluna and to the right or driver’s side of the utility.

74. If the plaintiff’s version as to the order of the motor cycles was correct, Mr Luke Scicluna, having his slowed his bike substantially, but being behind the plaintiff at all times, would have arrived at the scene of the accident many many seconds after the collision between the plaintiff and the Mercedes. Instead, Mr Luke Scicluna arrived almost instantaneously with the impact between the plaintiff and the Mercedes. He must have been passed (on the inside) by the plaintiff just before the fruit stall, and thus just out of the left-hand side of the CCTV footage.

75. As I have previously indicated, this is one of the reasons why I accept the evidence of Mr Luke Scicluna that he was the first bike in the overtaking manoeuvre. When Mr Tyrrell said that the first bike hit the car, the plaintiff could well have been the first bike, in the sense that by that stage Mr Luke Scicluna had slowed dramatically and the plaintiff had flown past him on the inside. Mr Tyrrell did not say for how long he had the motor cycles in view, and since he was driving along the road and had to watch the Mercedes in front, he could only have had a momentary glimpse towards the two motor cycles overtaking him.

FINDINGS OF FACT ON LIABILITY

76. I make the following findings of fact on liability.

1. On 29 June 2014 a line of four motor vehicles was proceeding south on Yarramundi Lane at Agnes Banks. The first car in the line was a Mercedes sedan driven by the defendant, in which the defendant’s wife was a passenger. The second car in the line was a utility driven by Mr Tyrrell. The third vehicle was a motor cycle ridden by Mr Luke Scicluna. The fourth and last vehicle was a motor cycle ridden by the plaintiff, who had a pillion passenger Ms Hennessey.

2. As the vehicles neared the intersection with Inalls Lane on the left, the Mercedes driver put on his indicator to indicate a left turn into Inalls Lane.

3. The Mercedes did not turn left into Inalls Lane. The Mercedes did not move or pull to the left side of the road, but continued straight ahead south in Yarramundi Lane.

4. At some point while the left-hand indicator on the Mercedes was showing, Mr Luke Scicluna started to overtake the utility and the Mercedes on his motor cycle.

5. The plaintiff also pulled out to overtake and rode behind Mr Luke Scicluna in the northbound lane.

6. Shortly prior to the Mercedes arriving at a driveway into a fruit stall on the right-hand side of the road (the western side) the driver of the Mercedes put on his right-hand indicator.

7. The Mercedes was by this stage driving slowly, and Mr Tyrrell slowed his utility down behind the Mercedes with no apparent difficulty.

8. Mr Luke Scicluna braked his motor cycle hard. The plaintiff did not brake at all.

9. The Mercedes made a right-hand turn at a slow pace into the fruit stall. As it was half way through the turn the motor cycle ridden by the plaintiff approached at high speed and the front of the cycle collided with the right-hand rear side of the Mercedes.

10. Mr Tyrrell pulled up his utility on the left-hand (eastern) side of the road almost adjacent to the point of impact.

11. Mr Luke Scicluna pulled up his motor cycle and by the time he got level with the point of impact he was almost stopped.

12. While Mr Luke Scicluna slowed and almost stopped his motor cycle and thus avoided a collision, the plaintiff in effect overtook Mr Luke Scicluna (on his left) and proceeded down the northbound lane at about 70kph.

NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE

77. Counsel for the defendant pointed out in submissions that the provisions of Divisions 1-4 and 8 of Part 1A of the Civil Liability Act 2002 (CLA) apply to these proceedings. Apart from pointing that out, neither counsel made any submissions about the application of the CLA.

78. Section 5B of the CLA provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable; the risk was not insignificant; and in the circumstances, a reasonable person in the person’s position would have taken those precautions. Section 5B(2) provides that in determining whether a reasonable person would have taken precautions, the court is to consider the following (amongst other relevant things):

1. The probability that the harm would occur if care were not taken,

2. The likely seriousness of the harm,

3. The burden of taking precautions to avoid the risk of harm,

4. The social utility of the activity that creates the risk of harm.

79. If a motor car does not given an adequate turn signal, then there is a foreseeable risk that harm could occur to other road users. Given the disparity in mass between a car and a motor cycle the risk of harm is not insignificant and a reasonable driver would take precautions against the risk of harm.

80. The probability that harm will occur if an appropriate signal is not given is significant. The likely seriousness of the harm which can be caused in a motor vehicle accident is quite high. The burden of taking precautions to avoid the risk is negligible, and indeed the giving of adequate signals is mandated by the Road Rules. The social utility of driving a motor vehicle on a road is an accepted right in modern day life.

81. There may have been an argument available that the defendant was negligent firstly in signalling to the left so as to cause other road users to assume that he was turning left. This led to both motor cycles commencing an overtaking manoeuvre. Instead of turning left the defendant went straight ahead, by which time both motor cycles were well on the overtaking path. However that was not a particular of negligence in the Statement of Claim.

82. I find that the defendant was negligent in failing to give an adequate right-hand turn signal before he made the turn into the driveway. The defendant was travelling slowly with a line of traffic behind him and should have anticipated that there was a risk that someone might be overtaking as he was making a right-hand turn, particularly as he had earlier indicated left but had driven straight ahead. Had he slowed down and given an adequate and unambiguous signal that he was turning right, it would have given the vehicles travelling behind him, including the plaintiff, the opportunity to understand that the plaintiff was going to turn across the northbound lane and that it would thus be unsafe for the motor cycles to overtake.

83. The fact that two motor cycles pulled out to overtake demonstrates that by the time they did, there was no right-hand turn signal being given. I find that the signal was given too late.

84. Section 5C of the CLA deals with the burden of taking precautions to avoid a risk of harm. I have found that the defendant was negligent by not giving adequate warning of his intention to turn right by signalling a right-hand turn early enough. The burden of taking precautions was minimal. It involved attending to the task of driving down the road and signalling an intention adequately and correctly.

85. Section 5D deals with general principles of causation. Section 5D(1) provides:

“A determination that negligence caused particular harm comprises the following elements:

(a)   that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)   that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).”

86. I find that the failure to give an adequate right-hand turn signal was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of liability to extend to the harm so caused.

87. Section 5E of the CLA provides that in proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. I have already set out above my findings of fact, which are relevant to both primary negligence and causation. Those facts have been established by the evidence.

CONTRIBUTORY NEGLIGENCE

88. Section 5R of the CLA extends the Act’s principles in relation to negligence to allegations of contributory negligence. The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time.

89. Counsel for the defendant submitted that while there was a right-hand turn indicator alight on the Mercedes, the plaintiff did not see it when he should have. He also submitted that the plaintiff was travelling at too high a speed.

90. I have made a factual finding that the defendant did use his right-hand indicator before turning into the fruit stall, but that the indicator was only put on a short distance before the turn. However, I have also made a finding that when the two motor cycles pulled out to overtake the utility and the Mercedes, Mr Luke Scicluna was in front and the plaintiff was behind him.

88. For whatever reason, Mr Luke Scicluna was able to brake heavily and bring his motor cycle almost to a halt just prior to the point of impact. He must have been keeping a proper lookout, and while he had a shorter distance than the plaintiff to avoid the collision, he managed to do so. He would have had a better view than the plaintiff, who was behind him, but he must have had sufficient warning that the right hand turn was going to occur, most probably by seeing the right hand indicator, to stop his overtaking manoeuvre in time.

89. By contrast, the plaintiff did not take any steps to avoid the collision, which means one of two things. Firstly, he either did not see the right-hand indicator or if he did he ignored it.

90. Secondly, Mr Luke Scicluna was braking heavily right in front of his motor cycle, and this alone should have warned him that he should have dramatically reduced his speed.

91. Instead, the plaintiff approached the point of impact without any discernible decrease in his speed. The plaintiff gave no evidence that he braked at all before the impact. Nor did anyone else give that evidence.

92. I find that the plaintiff was guilty of contributory negligence, in that a reasonable person, being given those two sources of a warning about the right-hand turn being made, would have reduced speed and stopped.

93. Once contributory negligence is found, the court must compare the degree of culpability of the defendant with that of the plaintiff. Regard is to be had to the relative causative importance of the conduct of each. In Pennington v Norris (1956) 96 CLR 10, the High Court said:

“What has to be done is to arrive at a ‘just and equitable’ apportionment as between the plaintiff and the defendant of the ‘responsibility’ for the damage. It seems clear that this must of necessity involve a comparison of culpability. By ‘culpability’ we do not mean moral blameworthiness, but a degree of departure from the standard of care of the reasonable man.”

97. I have found that the defendant was negligent by giving a right-hand turn signal too late, in other words by not giving sufficient warning to the plaintiff that the Mercedes was going to turn right into the fruit stall.

98. My findings about the departure from the standard of care of the reasonable man, in relation to the plaintiff, are set out above.

99. In my view the plaintiff was not guilty of contributory negligence in starting to overtake the traffic, when it had slowed and the defendant was indicating a left turn. There was no oncoming traffic in the northbound lane and clearly the utility was slowing down as well as the Mercedes.

100. However, the plaintiff must bear some proportion of the overall blame in relation to the collision, which was primarily caused by the defendant failing to give an adequate right-hand turn signal. I stress that while I have found that the right-hand turn indicator was used by the defendant, it was only put on shortly before the turn and the impact. However, as I have found above, had the plaintiff kept a proper lookout and reduced his speed he could have taken action to avoid the accident, as the motor cycle in front of him successfully did.

101. In my view the defendant was the party primarily responsible for this accident, as by his driving he placed the plaintiff in an emergency situation when he was overtaking in the northbound lane.

102. My finding on contributory negligence is that the defendant is 75% to blame and the plaintiff is 25% to blame. There will therefore be a reduction of 25% in the damages which I would have otherwise awarded to the plaintiff.

MEDICAL EVIDENCE

103. The plaintiff had three days in Westmead Hospital as an inpatient, having been taken from the scene of the accident by ambulance. Radiology showed:

1. An acute comminuted intra-articular fracture of the distal left radius;

2. A displaced fracture through the base of the ulnar styloid process;

3. An acute oblique comminuted non-displaced fracture to the mid-shaft of the left fourth metacarpal;

4. A comminuted fracture through the neck of the right fifth metacarpal with angulation of the distal fragment;

5. A left ninth rib fracture.

104. In Westmead Hospital there was an open reduction and internal fixation of the left wrist by an orthopaedic surgeon.

105. The hospital noted that there was no tenderness in the neck or the back and a full range of movement in both areas.

106. On 4 July 2014 the plaintiff went to the Werrington Medical Centre, to be seen in relation to his wrist fracture.

107. Upon return to the Gold Coast the plaintiff was seen by his GP at the Reedy Creek Medical Centre on 14 July 2014. He reported being in pain and prescription pain killers were provided. He was seen again on 15 July 2014 for acupuncture and reported that his pain was not under control. He had acupuncture again on 18 July 2014. On 24 July 2014 he attended for a right hamstring strain. On 5 August 2014 he was referred to an orthopaedic surgeon with back pain. He was seen again for this problem on 21 August 2014. There is nothing in the evidence to suggest that the plaintiff ever attended an orthopaedic surgeon.

108. By 30 September 2017 the plaintiff was being seen about once a month, but for problems unassociated with the accident. There is no indication of any treatment by the general practitioner past that time, in relation to injuries sustained in the collision.

109. The plaintiff was seen for medico-legal purposes by Dr Peter Giblin, orthopaedic surgeon on 25 August 2015. Dr Giblin noted that by that time there was no treatment except massage and Panadol. The plaintiff reported left shoulder pain, recurrent low back ache, pain and stiffness and loss of grip particularly in the right hand, neck pain and stiffness and bilateral ankle pain and left heel numbness. At the time of the trial the plaintiff was not complaining of all of these problems.

110. Dr Giblin noted that the plaintiff was living on 50 acres outside Mudgee. There was no history of farm work recorded in the first Giblin report, but that is understandable as there was no farming carried out on the smaller 50 acre property where the plaintiff and his partner first moved.

111. Dr Giblin thought that the plaintiff was unfit to use his spine for repetitive bending, lifting and twisting or associated labouring duties. He thought there would always be slightly decreased grip strength in the right hand. It is to be noted that Dr Giblin did not record a history of the kinds of physical work done by the plaintiff in his pool company prior to the accident.

112. The plaintiff was seen again by Dr Giblin on 14 February 2018. The history given then was that he lived on 250 acres running sheep, cattle and crops and driving machinery. He said that he had trouble sleeping on his shoulders, reaching up into high shelves and cupboards, or operating vibrating machinery above shoulder height. His knees caught and clicked when he first got out of bed in the morning and when he got up out of the chair. It is to be noted that the plaintiff did not give any evidence of this nature.

113. Dr Giblin recorded that the plaintiff’s back was sore with heavy bending and lifting and that this restricted him in terms of heavy physical manual work. The defendant pointed out in submissions that Dr Giblin did not take a history of the actual work done on the farm, nor of the fact that the plaintiff could cope with that work.

114. The opinion of Dr Giblin concerning fitness for work, was that the plaintiff would be fit for a work environment of suitable modified duties. Again, it was pointed out for the defendant that Dr Giblin did not know of the particular work done by the plaintiff on his farm, nor did he know of the renovation work done by him. There was no suggestion in the report of Dr Giblin that the plaintiff was not fit for administrative, financial and sales type work, of the kind which he did for 50% of his time in the pool business prior to the accident.

115. The defendant sent the plaintiff for medico-legal purposes to Dr Noll, an orthopaedic surgeon and Dr Lim, an occupational physician. Dr Noll saw the plaintiff on 13 April 2016. He took a detailed history of the work done on the 250 acre farm at Mudgee. The plaintiff reported that after the accident he was able to resume managerial work but was unable to take on any hands-on work. Dr Noll conducted a detailed physical examination of the plaintiff, which yielded essentially normal results. The doctor noted the various fractures. He said that clinical assessment revealed an essentially normal range of back movement with no evidence of muscle guarding or spasm. Clinical assessment showed mild restriction of left shoulder movement compared to the right side. There was no complaint of any symptoms in the neck.

116. Dr Noll accepted that the plaintiff had his fractures, as well as soft tissue strain-type injuries of the shoulders, neck and lower back. He thought that the reported residual symptoms would gradually decrease and possibly settle with the passage of time. In his opinion the plaintiff was able to resume most of his pre-injury work as the managing director of a pool company. He said that he would be able to undertake all the administrative work and “most of the hands-on work”. However, as senior counsel for the plaintiff pointed out, Dr Noll did not have details of the type of physical work done by the plaintiff before the accident.

117. Dr Noll saw the plaintiff again on 27 March 2017. The opinion of Dr Noll was essentially the same.

118. Dr Lim saw the plaintiff on 22 June 2016. The plaintiff reported that he did all the work on the farm, although he was in pain and modified the manner in which he did certain things. The plaintiff said that he could not use his hands after the accident and he would not have been capable of tying steel and performing other physical tasks required in the business.

119. Dr Lim said that the injuries to the left wrist and hand and the right hand left the plaintiff with fairly minor residual impairments. The risk of osteoarthritis was unlikely. The Lim said that the disabilities claimed by the plaintiff were not supported by objective findings on examination. He thought that the plaintiff was fit to return to occupations such as pool construction in full capacity. As senior counsel for the plaintiff pointed out, Dr Lim did not display any understanding of all of the physical jobs involved in this. Dr Lim offered the opinion that the plaintiff had total incapacity for work for three months and thereafter partial incapacity for three months, being capable of light duties and gradually upgrading to normal duties within that time.

120. Dr Lim saw the plaintiff again on 7 June 2017. He was still of the opinion that the accident did not result in significant injuries to the neck, shoulders or lower back.

FINDINGS ON THE MEDICAL EVIDENCE

121. As recited above, the only evidence given by the plaintiff about his physical problems was that he could not lift his arms up, his hands hurt when it was cold and his shoulders hurt when he lifted above his head. He gave no evidence concerning any back or neck problems. The plaintiff was not asked the traditional question as to whether the histories he gave to doctors were true and correct. In any event, an order was made limiting the histories given by the plaintiff in the medical reports to being evidence that the plaintiff had said those things, rather than those histories being evidence of the truth of what he said.

122. The plaintiff suffered the fractures in the accident which have been listed above. All of the doctors accepted that he would have some mild residual discomfort in the shoulders and the hands.

123. The plaintiff had experienced both neck and lower back pain before the accident, and had had acupuncture treatment for the lower back pain on a fairly regular basis. Given the forces involved in the accident, it is to be expected that there would have been some stirring up of his pre-existing mechanical neck and back pain. I find that that this did happen and that it lasted for about three months after the accident.

124. So far as fitness for work is concerned, the medical evidence does support some limitation on his ability to do all of the heavy tasks involved in pool building. However, Dr Giblin did not set out any fine detail in relation to work done on the farm, and he did not know of the renovation work the plaintiff had been involved in.

125. Dr Noll had a detailed history of the work done on the 250 acre farm at Mudgee. However, even Dr Noll accepted that the plaintiff continued to have problems with soft tissue strain-type injuries of the shoulders, neck and lower back, as well as the pain and problems caused by the fractures. I accept the opinion of Dr Noll in relation to these issues. That opinion was not all that different from the opinion of Dr Giblin, who I also accept. The injuries suffered by the plaintiff are long term, if not permanent, and would reduce his ability to do all physical work. However, the fact that the plaintiff is working on the farm and participating in renovations demonstrates that the plaintiff still has a significant capacity for physical work.

DAMAGES

126. The plaintiff is not entitled to damages for non-economic loss because he has been assessed as being under the 10% Whole Person Impairment threshold – s 131 Motor Accidents Compensation Act 1999.

127. The parties agreed that the plaintiff is entitled to an award of $4,306.10 for out-of-pocket expenses. This left a disputed amount of $1,705 for Mudgee Chiropractic. The plaintiff said that he obtained symptomatic relief through this treatment. It has ceased some time ago. He never had chiropractic treatment prior to the motor vehicle accident. I will allow it. The assessment of damages for past out-of-pocket expenses is therefore $4,306.10 plus $1,705 = $6,011.10.

128. As to future out-of-pocket expenses, the defendant submitted that the figure should be nil, as no evidence was given by the plaintiff that he was going to doctors or taking medication. The plaintiff put no particular submission in relation to the quantum of future out-of-pocket expenses, except to say that there was no claim made for any future surgery.

129. Given the paucity of evidence given by the plaintiff about his present condition, and the absence of any evidence given about present treatment or medication, there will be no damages assessed for future out-of-pocket expenses.

130. No claim was pursued for domestic assistance.

131. The plaintiff’s Statement of Particulars dated 18 August 2016, which was never updated or amended, put the claim for economic loss in three ways. Firstly, it was alleged that the growth of the business had slowed, in that the plaintiff had not been involved in the business very much since the accident, and had been “unable to cultivate and maintain the business relationships he was developing prior to the accident”. The first problem with that claim is that the plaintiff gave no such evidence. The second problem with that claim is that in spite of his physical injuries, there was no evidence that the plaintiff has been, at any time, unable to attend to the administrative, sales and business side of Malibu Pools. The third problem with that claim is that the figures do not show that the growth of the business has slowed, in any pattern which could be attributed to the accident. The sales of the business, as revealed in the profit and loss statements of the Jengar Trust, are as follows:

1. 2012 - $1,812,000

2. 2013 - $2,052,000

3. 2014 - $2,010,000

4. 2015 - $1,524,000

5. 2016 - $2,048,000

6. 2017 - $2,449,000

132. The only outlier in those figures is the 2015 figure where sales dropped by about $500,000. The plaintiff did not give one word of evidence as to why that happened. He promoted the salesman for the business, who worked on commission, to be the manager. The plaintiff asserted that this person was running a pool business on the side, and managed to siphon off a lot of the new contacts and thus the work of the business. No attempt was made to call evidence to establish that allegation. Further, there was vague evidence given that litigation had been brought against that person, which had been settled for $35,000. There was no evidence to establish whether that was in any way an undervalue for the work siphoned away from Malibu Pools. Finally, there was no explanation why the sales jumped back up to the usual figure of about $2,000,000 in 2016, or accelerated to $2,449,000 in 2017.

133. The operating profit before income tax from the business for the years above was as follows:

1. 2012 - $65,245

2. 2013 - $108,606

3. 2014 - $4,445

4. 2015 – ($19,693) – loss

5. 2016 - ($186,253) – loss

6. 2017 - $162,792

134. There was no evidence called to explain why the profit figures fluctuated so wildly, when in three of the six years under consideration (2013, 2014, 2016) the sales figures were about the same, at approximately $2,000,000. There was no evidence called to explain why, when the sales increased by 34% from 2015 to 2016, the loss in 2016 was over nine times the loss in 2015.

135. This absence of evidence is even more surprising, given that the plaintiff was cross-examined about his understanding of the financial side of the business, and said that he understood it, and he made the financial decisions in relation to running of the business. A long term employee of the business, Ms Huttunen was called to given evidence. She said that while she did a lot of bookkeeping and administration, she deferred to the plaintiff who ran the financial side of the business without reference to her.

136. The second way in which the claim for economic loss was particularised was as follows: “The plaintiff is now paying the sales manager more than he was prior to the accident, which is resulting in an overall loss of the plaintiff’s nett profit from the business.” Ms Huttunen is the new manager, and she is paid about $70,000 per annum. She could not say when she took over that role. The sales manager immediately prior to the accident was the man who was later promoted to be the manager, and who proved unsatisfactory. He worked on commission not a wage. There was no evidence how much he earned on commission and there was no evidence as to whether he was paid anything more, when he became the manager, than when he was the salesman. Once again, the absence of evidence is surprising when the plaintiff said that he knew everything about running the financial side of the business.

137. A comparison of the 2014 profit and loss statement of the Jengar Trust, with the 2015 statement raises more questions than it answers. Commissions were paid in both years. In 2014 the commissions were $109,936.04 and in 2015 the commissions were $97,019.86. There was thus a reduction of almost $13,000 in commissions. However, this was a year when the sales were $500,000 less than the 2014 year. It is to be expected that commissions would be reduced. However, one cannot discern from the difference between the two figures that they were in any way reduced because the salesman was moved from working on commission to working as the manager on a wage.

138. The third way in which the claim was put was that the plaintiff’s reduced profit margin was “in consequence of the plaintiff having to engage replacement labour”. It was made clear in submissions that this related to employing sub-contractors to do the physical work which the plaintiff used to do in the business. Again, such a contention is not borne out by reference to the profit and loss statements. In 2014 sub-contractors were paid $783,595. In 2015 they were paid $515,441. While this is a dramatic reduction, it could well be explained by the fact that the sales dropped by 25%. No attempt was made to identify particular sub-contractors who were engaged to do work previously done by the plaintiff. Fees paid to sub-contractors went back up to $782,000 in 2016, when sales went up to $2,000,000. That is almost exactly the figure paid to sub-contractors in 2014, when the plaintiff was able-bodied. There was no explanation as to why more was not paid for sub-contractors in 2016, given that the plaintiff said he could not do the physical work in that year. Once again, the documents did not tell a story which supported the way in which the plaintiff’s case on economic loss was particularised, and the plaintiff himself was completely silent about these matters.

134. A schedule of calculations of economic loss was handed up and became MFI 4. It was a deeply flawed document. Firstly, it included the profit each year from Cannon Group Australia Pty Limited (“Cannon”). There was not one word of evidence as to what the business of Cannon was, nor how it fitted into the running of Malibu Pools. In any event, some of the income of Cannon came from large distributions from the Jengar Trust. For example, in the 2013 year, $88,606 was double counted because it appears in the profit of Jengar Trust and the reported profit of Cannon.

135. Secondly, without any explanation as to why the profit figures varied so much from one year to the next, even though sales were largely consistent, one cannot simply add the profits for the pre-accident years and average them, and then do the same for the post-accident years. In any event, the mathematical exercise done completely ignored the fact that there was a profit of $162,793 in 2017, except that it was acknowledged that there was no economic loss in that year because such a large profit was made.

136. Thirdly, the plaintiff was paid a wage each year by the business, except in the tax year 2013, when the business allegedly made a “true profit” of $221,096. 2014 was the last tax year in which the plaintiff worked uninjured (the accident was on 29 June 2014). In that year the plaintiff was paid a wage of $41,000 by the business. In the next tax year 2015, when he did not work, he was paid a wage of $52,000, in spite of the “true profit” decreasing from $157,000 to $34,000. There was no explanation why, if the profit dropped so dramatically, the company could afford to pay an extra $11,000 in wages to someone who did effectively nothing in the business.

137. Put shortly, I do not accept the mathematical approach put forward during submissions by junior counsel for the plaintiff. The plaintiff tendered 566 pages of financial records, but little reference was made to any of those pages in the submissions, and of course no reference whatsoever was made to even one of those pages in the evidence.

138. I reject the three ways in which the claim for economic loss was particularised. Firstly, there was no evidence that the plaintiff had been unable to cultivate and maintain business relationships, which caused the business to slow. Secondly, there was no evidence that the profit available to the plaintiff was reduced by the sales manager being paid more after the accident. Thirdly, there was no evidence that the profit margin was reduced by extra sub-contract labour having to be employed.

139. However, the Statement of Particulars did fall back upon a claim in the alternative for a buffer for future economic loss. In my view a buffer is the only way to approach future economic loss, and a lump sum for the past, not calculated on any mathematical basis based upon the 566 pages of financial material, is the correct approach.

140. To reflect the loss of capacity to do physical work at all for three months, and to reflect a relatively minor physical incapacity on going to the date of the trial, I assess damages for past economic loss at $20,000.

141. The assessment of damages for future economic loss is governed by s 126 of the Motor Accidents Compensation Act 1999 which provides:

"(1)   A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)   When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3)   If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

147. In spite of the apparent technical requirements of s 126 of the Act, numerous Court of Appeal decisions have accepted that in an appropriate case it is permissible to award a buffer or lump sum, without doing any fine mathematical calculations – PenrithCity Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Limited v Kerr [2012] NSWCA 13.

148. It is impossible to approach the calculation of the lump sum in this case on any mathematical basis. The plaintiff does have a relatively minor permanent interference with his earning capacity, because of ongoing restrictions in doing all of the physical work in the pool building business, which he could do prior to the accident. Nevertheless, he has demonstrated by the work he does on the farm and by the renovations he has assisted with on the farm that he has a significant remaining capacity for physical work. The plaintiff’s move to live on acres at Mudgee is also a relevant consideration. This move happened after the accident but there was no evidence at all that it was precipitated by the accident. The plaintiff gave no evidence about it and was not asked anything about it in cross-examination. For all the court knows, the plaintiff may have been intending to move to a rural lifestyle and run the Malibu Pools business by the employment of others. The plaintiff’s most likely future circumstances but for the injury were probably going to be living on a farm at Mudgee, and doing no physical work in the Malibu Pools business, but running it from afar in an administrative and financial sense. Of course, there is always the possibility that someone may give up living on a farm, in which case the plaintiff would have a slightly reduced capacity on the open labour market.

149. To reflect all of these considerations, I assess damages for future loss of earning capacity in the lump sum buffer of $25,000.

CONCLUSIONS AND ORDERS

150. I assess the plaintiff’s “full value” damages as follows:

HEAD OF DAMAGE	AMOUNT
Past out-of-pockets	$6,011.10
Past economic loss	$20,000.00
Future loss of earning capacity	$25,000.00
TOTAL	$51,011.10

151. A reduction of 25% for the plaintiff’s contributory negligence means that the plaintiff is entitled to damages of $38,258.33.

152. My orders are:

1. Judgment for the plaintiff for $38,258.33.

2. Order the defendant to pay the plaintiff’s costs.

**********

Decision last updated: 16 March 2018