Tarres v Rozelle Carriers Pty Ltd
[2011] NSWSC 1410
•25 November 2011
Supreme Court
New South Wales
Medium Neutral Citation: Tarres v Rozelle Carriers Pty Ltd [2011] NSWSC 1410 Hearing dates: 14/03/2011, 15/03/2011, 16/03/2011, 17/03/2011,18/03/2011 Decision date: 25 November 2011 Jurisdiction: Common Law Before: Garling J Decision: (1) Judgment for plaintiff in a sum to be calculated.
(2) Parties to bring in short minutes of order.
(3) Proceedings adjourned to 9.30am Friday 9 December 2011, for argument and final orders.
Catchwords: TORTS - NEGLIGENCE - Motor vehicle accident - Truck collides with bridge superstructure - Truck driver's lap-only seatbelt did not lock during collision - Serious neck injury sustained - Breach of duty for failure to replace faulty seatbelt - Defendants had knowledge of fault - Failure to provide lap-sash seatbelt not breach of duty - Operational seatbelt would have prevented injuries
TORTS - CONTRIBUTORY NEGLIGENCE - Truck collides bridge superstructure - Motor Accidents Act 1988 s 74(2) does not apply - Plaintiff knew height of bridge - Plaintiff did not measure height of container on truck - Plaintiff did not know extent of truck's weight change after unloading container's contents - Plaintiff relied on signal from oncoming motorist to assess if truck would fit under bridge - Plaintiff did not take available alternative path - Thirty-five percent apportionment just and equitable
DAMAGES - Motor vehicle accident - Serious cervical spinal injury requiring surgical decompression and fusion - Greater than ten per cent whole body impairment - Plaintiff overstating extent of pain and disability - Mobile with difficulty on occasions - No longer able to drive heavy motor vehicles - Twenty per cent residual earning capacity - Future economic loss reduced for vicissitudes of life - Future treatment expenses adjusted for reduced necessity of psychological care - No issue of principleLegislation Cited: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1965
Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987Cases Cited: Barnes v Hay (1988) 12 NSWLR 337
Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Kallouf v Middis [2008] NSWCA 61
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Nominal Defendant v Livaja [2011] NSWCA 121
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Roads and Traffic Authority v Royal [2008] HCA 19
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517Category: Principal judgment Parties: William Tarres (P)
Rozelle Carriers Pty Ltd (D1)
Hobbs Bros (Carriers) Pty Ltd (D2)
Allianz Australia Insurance Limited (D3)Representation: L King SC, A McSpedden (P)
J Gracie (D1-D2 on 14.03.11)
K Rewell SC, G Smith (D1-2 on 15.03.11 – 18.03.11; D3)
Napier Keen (P)
Riley Gray-Spencer Lawyers (D1-D2)
TLlawyers (D3)
File Number(s): SC 2009/332335 Publication restriction: Nil
Judgment
In January 2007, William Tarres, the plaintiff, was and had been for over 15 years a professional truck driver.
On 17 January 2007, he drove a prime mover and semi-trailer loaded with an empty shipping container along Myrtle Street, Marrickville. While attempting to drive under a railway bridge that crossed over Myrtle Street, the top of the shipping container collided with the bridge.
Mr Tarres claims he was thrown about inside the prime mover's cabin and that he sustained head and spinal injuries.
He claims that had the seatbelt in the prime mover been properly fitted and correctly operating, or else had there been a differently designed seatbelt, he would not have sustained his injuries.
He sues Rozelle Storage and Warehousing Pty Ltd, formerly known as Rozelle Carriers Pty Ltd, which was the owner of the truck and Hobbs Bros (Carriers) Pty Ltd, which carried on the business of transporting containers from place to place in trucks owned by Rozelle Storage. It is unnecessary to differentiate between the defendants in this judgment.
Rozelle Storage and Hobbs Bros admit they were responsible for the state of the truck, and admit that they owed Mr Tarres a duty of care. However, they otherwise put in issue the following:
(a) whether the defendants were in breach of their duty of care;
(b) whether any conduct on the part of the defendants caused any injury to Mr Tarres;
(c) whether Mr Tarres failed to take care for his own safety and was guilty of contributory negligence; and
(d) the extent of the injuries and disabilities suffered by Mr Tarres in the accident.
For the reasons which follow, I have decided:
(a) the defendants were in breach of their duty of care to Mr Tarres by failing to replace the seatbelt in the Ford Louisville 9000 Prime Mover, registered STG 581;
(b) had the defendants replaced the seatbelt with a correctly operating seatbelt, Mr Tarres would not have sustained his injuries;
(c) Mr Tarres failed to take adequate care for his own safety and is guilty of contributory negligence; and
(d) Mr Tarres is entitled to damages, but not to the extent which he claimed.
Mr Tarres' work history with Hobbs Bros
Mr Tarres was employed by Elysium No. 20 Pty Ltd, a company of which he was the sole director and shareholder. That company had a contract with Hobbs Bros for Mr Tarres to provide his services as a truck driver, operating from the trucking yard of Hobbs Bros located at Ingleburn.
Mr Tarres was a very experienced truck driver. He started his own courier business in 1985, which ran for a few years. He slowly built up a transport business and moved from lighter vehicles into heavier vehicles. By about 1990, he had become involved in driving larger and heavier vehicles both within the State of New South Wales and interstate, including road trains and large fuel trucks.
As well as driving heavy vehicles, Mr Tarres worked in various managerial positions for different trucking companies over the years.
Mr Tarres, or the company through which he operated, Elysium, ceased to own trucks in about 2003. After that time his services as a driver were contracted to various organisations. He only provided labour to those organisations.
In about August 2006, he commenced to drive for Hobbs Bros. He was required to arrive at the Ingleburn depot by about 6am each morning and would then drive a vehicle nominated by a Mr Scott Lovatt, or one of the senior employees at Hobbs Bros, and undertake the transport tasks that were allocated to him. Mr Lovatt was the Transport Manager for Hobbs Bros. If Mr Lovatt was not present, then Mr Les Smith, an allocator, would distribute the work tasks.
From about September 2006, the vehicle that Mr Tarres primarily drove was a 1993 Ford Louisville 9000 Prime Mover, registered number STG 581. That was the vehicle that he was driving on the day of his accident.
It is sufficient for present purposes to note that Mr Tarres was familiar with the vehicle and had driven it on many occasions prior to the accident in question. Some aspects of his driving history with the Ford Louisville will be discussed later in this judgment.
In general terms, the work undertaken by Mr Tarres involved him moving trailers, both loaded and unloaded, from one location to another. Typically the trailers, when loaded, carried shipping containers. These containers were themselves either full or partially full of cargo, or else empty.
It is a matter of common sense, and must have been obvious to Mr Tarres, that depending upon the nature of the trailer and its configuration, the size of the shipping container and the weight of the cargo inside the shipping container, that the external configuration, namely height and width of the trailer and any container loaded on it, would change from container to container, and journey to journey. Whether that change would be significant or noticeable would depend upon all of the particular features of the trailer, the container and its load.
The instructions given by Hobbs Bros to Mr Tarres generally included the pick-up location, if that was different to the Ingleburn depot, and the delivery location. It was a matter for Mr Tarres, as an experienced driver, to select the roads along which he drove and to choose the route by which he travelled between locations.
The circumstances surrounding the collision
On 17 January 2007, Mr Tarres commenced his day at the Ingleburn depot of Hobbs Bros at about 5.30am. After undertaking some earlier jobs, he drove to Patrick's Terminal at Port Botany. There a shipping container full of cargo was placed on the prime mover's trailer. He left Patrick's Terminal at about 11.25am to transport the shipping container and cargo to the premises of a company, called New Directions, which was located at 47 Carrington Road, Marrickville.
Mr Tarres chose the route he was to travel from Patrick's Terminal at Port Botany to New Directions at Marrickville.
That route was via Sydenham Station. He turned south into Victoria Road, which connects directly into Myrtle Road and then Carrington Road. At about the point along the continuum of Victoria Road and Myrtle Street, where the names of the roads change, the road passes underneath two parallel railway bridges.
The northern bridge, being that closest to Marrickville Road, was the first bridge under which Mr Tarres passed as he drove from Port Botany to New Directions. The southern-most bridge, being that closest to New Directions, and in the direction of the Cooks River, was the second one he passed under.
A survey of both bridges was admitted as Exhibit F. It was not in dispute, although the survey was not carried out until 2009, that it accurately represented the position and configuration of the railway bridges in January 2007.
Since the accident happened as Mr Tarres drove in a northerly direction towards Marrickville, it will be convenient to note the relevant measurements for traffic travelling in that direction. The first bridge to be approached is the southern bridge. The survey shows that as one approaches the southern bridge, heading in a northerly direction, the minimum height from the underside of the bridge to the road surface is 4.38m. This is in the centre of the carriageway at about the location of the painted white line on the road. As one travels under the southern bridge to the exit side of it, that minimum height is slightly reduced to 4.33m.
In other words, in order to travel safely in a northerly direction, under the southern bridge, the total vehicular height, namely from the road surface to the top of the shipping container, needed to be less than 4.33m.
The clearance height for the northern bridge was somewhat less for traffic travelling in the northerly direction. Again, the minimum height clearance occurs at about the white line separating the two lanes of traffic. On the entry side of the northern bridge, the minimum clearance is 4.23m and on the exit side, that minimum clearance is reduced to 4.12m.
Again, in other words, in order for the trailer and shipping container to pass safely under the northern bridge, the height of the shipping container loaded on the trailer, when measured from the road surface had to be less than 4.12m.
For traffic travelling in a southerly direction, as Mr Tarres was on his way to New Directions with a loaded shipping container, the minimum height for both bridges, in about the middle of the road, was 4.43m. It can be seen that for traffic travelling south that the clearance is greater than for traffic travelling north.
It is necessary to resume the narrative of what occurred. As Mr Tarres travelled in a southerly direction from Port Botany to New Directions, he approached the first (or northern) bridge. On that bridge there was a sign that said in a very obvious way "LOW CLEARANCE 4.0 m". The sign was accompanied by panels of vertical black and white stripes that clearly indicated the need for caution.
Photographs (Exhibit E) also show that for traffic travelling north, as one approaches the southern of the two bridges, there is a like warning sign.
By reference to the measurements of the survey detailed in [25] above, it can be seen that the sign warned road users that the clearance was less than it in fact was. No doubt this was appropriate in order to allow, albeit by a small distance, a margin for error.
Each of these signs conveyed to the public in general, and to Mr Tarres in particular, that unless, in his case, the top of the shipping container was less than 4m from the road surface, it could not safely pass under the bridge, and that there would be likely to be a collision between the shipping container and the bridge superstructure.
The precise dimensions of the prime mover and trailer upon which the shipping container was loaded, which Mr Tarres was driving, have not been proved in evidence. The shipping container was full of cargo. Mr Tarres described the cargo as consisting of cardboard boxes, the dimensions and weight of which were not clearly described, although Mr Tarres estimated that the difference in weight between the vehicle being loaded with the cargo and without the cargo was about two tonnes (T37.8; Exhibit A [39]).
On his way to New Directions, as Mr Tarres arrived at the northern bridge, he noticed the "Low Clearance" warning sign. He slowed down considerably to ensure safe passage under the bridge. He received assistance from a motorist travelling in the opposite direction and passed safely under the bridge.
As a consequence of this safe passage, Mr Tarres was entitled to conclude that the maximum height of the loaded container on the trailer was less than 4m. He did not know, and made no attempt to establish, what the clearance margin was.
Having arrived at the New Directions site at about 11.40am, the shipping container was unloaded. This took some time, as Mr Tarres did not leave New Directions until about 2.40pm. The shipping container remained on the trailer, but the cargo of cardboard boxes was removed.
After the shipping container was unloaded and before leaving the yard at New Directions, Mr Tarres did not check the height of the top of the container (T46.46) although he knew, as he left the yard, it was his intention to return along the same route which he had followed to arrive at the New Directions yard.
Mr Tarres failed to measure the height of his vehicle and container before leaving New Directions. He could have, but did not, ask someone at the New Directions yard for a tape measure so that he could measure the height of his vehicle before he left the yard. He said that he had never thought about such matters.
The ultimate destination of the trip after leaving New Directions is unclear. It was either Port Botany or Hobbs Bros' yard. It did not matter to Mr Tarres' route selection process, because in the assessment of Mr Tarres either destination meant that he would retrace the route along Myrtle Street and Victoria Road, passing underneath the railway bridges. Due to the accident, he did not make it to his ultimate destination.
Mr Tarres could have taken a different route from the New Directions yard so as to avoid travelling underneath the railway bridges, but again, he said that he did not think about any change to his route.
On his journey, after leaving new Directions at about 2.40pm, Mr Tarres travelled back along Carrington Road, into Myrtle Road and came to the railway bridges. He said that he again noticed the sign indicating a low clearance with a maximum height of 4m, which was on the side of the southern bridge facing him. His evidence was that he again slowed down to ensure that he could pass under the bridges safely.
Mr Tarres stopped very close to, or just before, the first (that is, the southern) of the two bridges. His intention was to gain assistance from anybody travelling in a southerly direction as to whether he would be able to travel underneath the bridges with appropriate clearance.
Whilst stopped there, an oncoming motorist stopped at the northern-most side of the northern bridge, in other words what would have been the final exit point for Mr Tarres and his truck from both bridges. Mr Tarres indicated to that motorist by pointing with his finger to the top of the container and the bridge. He also looked upwards at the time. He did this in order to seek to assistance from the oncoming motorist.
The oncoming motorist signalled with his hand that Mr Tarres could drive towards him, which he did very cautiously. He put his truck in a very low gear, second gear, and moved forward.
He said, initially in cross-examination, that he stayed in second gear the whole way under the bridge until he came into contact with the bridge. I accept that this is what actually happened.
Mr Tarres successfully negotiated the first or southern-most bridge. He then passed through the relatively short gap between the bridges and commenced to travel under the second bridge. As he did so, the top of his container collided with the superstructure of the bridge.
Mr Tarres estimated that he had travelled between 20m and 30m from the point where he had been stationary before the entry point under the southern bridge, to the point of collision.
An issue arose between the parties as to what speed Mr Tarres was travelling when the collision occurred. There was a good deal of evidence about this, which it will be necessary to analyse in due course, and upon which it will be necessary to reach a conclusion.
In cross-examination, Mr Tarres was pressed to give an estimate of his speed at the time he was passing under the bridge. This exchange took place:
"Q. So you would have been doing walking pace, say, or something less? What was the position?
A. It's very hard to judge what actual speed you are doing. You might think you are doing walking pace, but you might be doing, oh, 10 clicks. A walking pace is about 3 clicks, so it's very difficult.
Q. You are, or you were, a professional driver, so you had a reasonable idea?
A. Reasonable idea.
Q. To the best of your estimation, were you doing a walking pace?
A. Probably a little bit more. Somewhere around about that, yeah. It's very difficult.
Q. Well, you were concerned about what was above you, weren't you?
A. Yeah. I was concerned enough not to be doing anything but I wouldn't have been going too fast that I couldn't have stopped or stopped something from happening." (T52.37-T53.3)
As he started to pass under the second bridge, the motorist gave Mr Tarres the "thumbs up" and waved him through. At that point, Mr Tarres commenced accelerating and continued to pass under the second (northern) bridge. As he was doing so, at some point that was not identified in the evidence, but under the bridge, the forward edge of the container came into contact with the bridge superstructure and his truck came to a halt.
Mr Tarres said in cross-examination that the stop was sudden and it was accompanied by a bang which he heard. In his statement he described the truck coming to " an abrupt halt ".
Immediately after the top of the container struck the bridge superstructure, according to Mr Tarres' evidence, the prime mover bounced up and down on its suspension. As that occurred he felt his head hit the roof of the cabin, which caused him pain. In his statement, Exhibit A at paragraph 41, he said:
"I was still proceeding slowing when I believe the front corner of the container struck the railway bridge forcing the truck to come to an abrupt halt. This has caused my body to be thrust vertically upwards in the cabin of the truck causing me to strike my head on the roof of the cabin."
In cross-examination, he gave this evidence:
"Q. And was it on the up bounce that you felt your head strike something.
A. Oh, I can't remember that, I can't remember details like that...
Q. Well, tell me what you felt when the container hit the bridge.
A. All I felt was hitting my head on the roof and then excruciating pain.
Q. But you don't know whether that was when the prime mover bounced upwards?
A. All I can remember is banging my head on the roof and it's just like, that's all I can remember, mate.
...
Q. You said that the prime mover bounced?
A. Well, that's what it felt like. I felt one big bounce and then me getting thrown up and hitting my head on the roof.
...
Q. That's alright. But then you felt the prime mover rise upwards and you hit your head on the roof?
A. All I remember is hitting my head on the roof. It was just like a bang. It was just like a big bounce and I just remember my head hitting the roof and then all these pins and needles like I was getting cut with razor blades. That's all I remember." (T58.48-59.33)
He said that he was positive that his head hit the roof and not something else.
According to his evidence, Mr Tarres estimated that there was a distance between the top of his head and the roof of the cabin of eight to ten inches.
Mr Tarres was subjected to extensive cross-examination on the issue of what it was that his head struck. He indicated in Court that the crown of his head, the top of his head, had struck something hard. He was firmly of the view that he struck the roof of the cabin and did not strike the overhead console immediately above the windscreen at the forward section of the roofline.
In the course of cross-examination he agreed that he was
"...pretty sure that [his body] would have moved forward because my back wasn't touching [the seat]. I was on an angle. ..." (T61.24)
He adhered to his evidence firmly that his head hit the roof and not the overhead console.
Although the plaintiff was in pain and had a number of symptoms from his injury, he was able to remove the truck from under the bridge. He did that by turning the steering wheel to the right and driving the truck out.
An ambulance attended and recommended to Mr Tarres that he go to hospital. After a period of rest, he decided to drive the truck back to the Ingleburn yard. When he arrived back at the yard, he complained of pain and was then driven by Mr Mark Robson, one of the principals of Hobbs Bros, to Campbelltown Hospital.
It will be necessary in due course to give an account of the injuries and consequences of injuries that Mr Tarres sustained.
However, for present purposes, it is appropriate to note the following contemporaneous accounts which relate to his injuries. The report of the ambulance service officers who attended at the scene of the collision recorded this (I have inserted common expressions used in such notes in lieu of the abbreviations contained in the actual document):
"Patient self extricated from truck which struck overhead railway bridge. Patient complained of central cervical neck pain with tingling in hands. Nil loss of consciousness. On examination: glascow coma scale 15, pulse regular, normotensive, well perfused, nil shortness of breath, nil chest/abdomen pain, nil headache, pupils equal and reactive to light, limbs intact. Nil motor or neurological deficit. Patient states had initial loss of movement in hands, now self relieved. Patient still with tingling in arms and cervical neck pain. Patient refused treatment against advice. Ambulance officers outlined to patient he may have a serious neck injury and requires transport and treatment. Patient refused transport and treatment stating 'too inconvenient, has to organise truck and family. Will visit LMO later'. Patient advice card given. Unable to convince patient to be transported." (Ex M)
After attending Campbelltown Hospital, he was apparently referred to Liverpool Hospital, where he remained for some time and was discharged home. Although the ambulance officer's report is the first contemporaneous note of the extent of the injuries suffered by Mr Tarres, there are further notes available from both Campbelltown Hospital and, somewhat later, Liverpool Hospital.
It will be necessary to examine the question of liability in detail. However, some factual conclusions about the events leading up to and including the accident can be drawn at this point:
(a) The truck which Mr Tarres was driving clearly exceeded 4.12m in height and was less than 4.23m in height. This means that its height exceeded the minimum clearance of 4m which was obvious to, and seen by, Mr Tarres on the sign as he approached the entry side of the southern bridge;
(b) Mr Tarres knew that the configuration of the truck and trailer with the container on it was very close to the minimum clearance. That was obvious from the fact that he took great care when travelling to the New Directions yard in a southerly direction, and also from the fact that he brought his vehicle to a halt and sought assistance from an oncoming motorist to pass under the bridges in a northerly direction;
(c) The vehicle was loaded when he travelled under the bridges on the first occasion heading south to New Directions and had been unloaded by removal of the cargo from inside the shipping container before he started to travel north;
(d) Mr Tarres did not take any steps to satisfy himself by use of a tape measure or other personal visual observation that there would be, or that there was, adequate clearance between the top of the container and the railway bridge;
(e) Mr Tarres relied solely upon an indication from a motorist travelling in a motor vehicle, coming in the opposite direction, to satisfy himself that it was safe to drive the Ford Louisville and trailer under the bridge;
(f) The vehicle collided with that part of the superstructure of the northern of the two bridges, where the clearance was between 4.12m and 4.23m in height.
Speed
The speed of the vehicle was a matter that was the subject of dispute. I have earlier referred to some of the evidence that the plaintiff gave. Initially, the impression which I gained from his evidence was that the truck was travelling in second gear at about 3km/h to 5km/h, but perhaps as much as, but no greater than, 10km/h, as it travelled under the northern bridge immediately before the point of collision. However, it seemed in cross-examination, that the plaintiff sought to qualify this evidence by suggesting that once he had been given the all clear sign under the second bridge, he was accelerating and had reached about 15km/h at the time of the impact.
On 24 February 2007, the plaintiff attended at the Hills Police Station where he made a report of the accident. According to the police report (Exhibit G), the following relevant details were recorded:
(a) the accident happened at about 2.30pm on 17 January 2007;
(b) one vehicle was involved in the accident which was a Ford Louisville 9000 articulated vehicle, registration number STG 581, which sustained damage to its 'roof'. (This was the code allocated by police which I took in this case to mean the top of the container);
(c) the pre-crash speed of the motor vehicle was 5km/h;
(d) the crash summary details were:
"On 17th January 2007 about 2.30PM the driver drove M/V STG-581 along Myrtle St Marrickville and during which the driver has collided with the lower part of a railway bridge causing minor damage to the top of the damage [sic]. The vehicle itself was not damaged only the container on top of the truck."
In cross-examination of Mr Tarres, it was suggested that the following account was contained in a police officers notebook and that it was the account which Mr Tarres had given to the police when he reported the matter on 24 February 2007:
"I was travelling along Myrtle Street, Marrickville at about 5 to 10 kilometres an hour when I was driving under railway bridges near the intersection of Carrington Road. The top of my container on the back of my truck clipped the bottom of the railway bridge. I was surprised at this because I had already driven through under the bridge earlier without incident." (T65.60 - T66.40)
Mr Tarres did not dispute that he had given this account to the police officers. The account is generally consistent with the police report and generally consistent with the evidence that Mr Tarres initially gave.
There are two other pieces of evidence that suggest that Mr Tarres may have been travelling at a somewhat faster speed.
According to the clinical record of the Emergency Department of the Campbelltown Hospital (Exhibit J), the following history of the accident is recorded:
"MVA, low speed, 15kph, truck hit the bridge, got stuck, sudden flexion and extension neck and head hit the roof of the truck. No LOC ..."
As the plaintiff was not accompanied by any workmate into the Emergency Department, the probabilities are that the plaintiff was himself the source of the history. However, precisely what he said to Dr Kwok, which Dr Kwok then interpreted and wrote into the records, is unclear. The plaintiff himself gave no evidence about what he had said.
Whilst the note is a contemporaneous one, it has a degree of ambiguity about it, which means I can place little weight upon it as a completely accurate estimate of speed given by Mr Tarres.
Was Dr Kwok told, for example, that the speed was exactly 15km/h or no more than 15km/h or about 15km/h, from any of which descriptions he then wrote simply 15km/h. Alternatively, was Dr Kwok told that the accident was a low speed one, and he asked for an estimate of the speed, and was given a "best estimate". Alternatively, again having been told that the accident was a low speed one, did Dr Kwok infer that the speed was about 15km/h? These possibilities were not resolved by the absence of evidence from Mr Tarres. The existence of these possibilities combines to make the note unreliable as a basis for a firm factual finding that the truck was travelling at 15km/h, at least without regard to all of the other evidence. With the exception of the evidence to which I next refer, there was no other like evidence.
The only other evidence was that which the plaintiff gave during the course of cross-examination, when he said that he thought that because of acceleration of the truck once he had been given the "all clear", he had reached about 15km/h at the time of impact.
His initial evidence on this topic was that at T52.37-T53.3, which I have set at above in [48].
He was later taken back to the subject and asked further questions. He said this (T63.32-T64.36):
"Q. When you hit the bridge is it fair to say you were not travelling fast at all?
A. Relatively I wasn't travelling fast.
Q. You were, by any measure, travelling very slowly, weren't you ...
A: Slowly relative to the speed limit, yes.
Q. Mr Tarres, you weren't contemplating going within 50 kilometres an hour of the speed limit, were you?
A. Of course not.
Q. Of course you were travelling slowly relative to the speed limit?
A. Yeah.
Q. That doesn't tell us anything about the pace you were travelling?
A. Probably 15 clicks.
Q. 15 kilometres an hour?
A. Probably.
Q. That's five times walking pace, is that what you say you were doing?
A. If that is walking pace, I guess.
Q. Why would you be going to go to 15 kilometres an hour?
A. It doesn't take much to get a truck to go 15 kilometres an hour.
Q. A truck in second gear accelerates fairly slowly, doesn't it?
A. 15 clicks is fairly slow.
Q. You had no need to go under that bridge at 15 kilometres an hour, did you?
A. I had no need.
Q. And, indeed, you were exercising caution, weren't you, as you were going under the bridge?
A. Yes.
Q. At 15 kilometres an hour is not exercising caution, is it?
A. If you have been given the clearance to go it is.
Q. So you thought it was wise to accelerate to 15 kilometres an hour solely on the basis you say you got the okay from a person sitting in a car?
A. He got me that far, why would he lie halfway through it.
Q. Why would you speed up?
A. It is not speeding up as such. That's normal driving.
Q. Normal driving when you are worried about the clearance, or lack of it, that you have got above your trailer?
A. After you have been given the clearance, yeah."
Earlier in his evidence, as I have recorded in [ 48 ] above, the plaintiff had acknowledged the difficulty of placing an estimate on the speed he was doing, but said that it was probably a little bit more than walking pace, that is, three kilometres an hour.
I regard this estimate of 15km/h, which he gives in the evidence that I have extracted in [75] above, as unreliable and I do not accept it. The reasons for this are:
(a) it is inconsistent with his earlier sworn evidence;
(b) it is inconsistent with the account he gave to the NSW Police of the accident;
(c) the manner in which he gave this evidence, and the terms of the answers which he gave, left me with the impression that he was engaging initially in speculation about the speed at which he was travelling, and then when pressed to justify the speculation, resorted to arguing with the questioner, and seeking to answer in a way which advanced what he perceived to be in his best interests;
(d) the physical locations and the factual circumstances to which I next draw attention, tell against the accuracy of this estimate.
There are a number of physical facts and circumstances about the scene of the collision that tell against the plaintiff's suggested estimate of speed of 15km/h, and all combine to persuade me that this was a low speed, that is, 5km/h to 10km/h impact. These include:
(a) the width of the bridge;
(b) the truck was in second gear;
(c) the plaintiff accepted that he was moving slowly so as to ensure that he travelled safely under the bridge;
(d) the collision occurred within a few metres of where his acceleration commenced; and
(e) the container did not become severely wedged under the bridge, but rather was able to be extricated by turning the steering wheel to the right and driving the vehicle forward.
I therefore conclude that the plaintiff's initial report to the police and his initial account in evidence, is more likely to be accurate than his later account of 15km/h. Whilst there is necessarily some imprecision in the plaintiff's estimates of speed, having regard to the evidence and the factors to which I have just referred, I am satisfied that the collision occurred whilst the truck was travelling between 5km/h and 10km/h, and no more.
Expert evidence was given on a range of matters surrounding the occurrence of the accident, and what happened in a dynamic sense in the course of the accident. None of the experts expressed any view about the speed at which the vehicle was travelling. Rather, their views were constructed upon one or more assumptions as to the speed. In order to understand the effect of the experts' evidence, it is important to draw a firm conclusion about speed.
To summarise, for the reasons that I have earlier indicated, I am satisfied that the speed was between 5km/h and 10km/h at the time of impact between the shipping container and the superstructure of the bridge.
Damage to prime mover, trailer and container
The extent of damage to the prime mover, trailer and shipping container, if any, was one relevant factor for the experts to consider in expressing their opinions about the operation of the seatbelt. It may also have been helpful in determining the speed at which the vehicle was travelling when the collision occurred.
There was no evidence that in the collision the prime mover was in any way damaged. There was no evidence that the trailer, nor any component part of it, or other fittings that formed a part of it, were in any way damaged.
The only evidence of damage to any component part of the vehicle as a consequence of the collision with the railway bridge, was to the shipping container being carried on the back of the trailer.
Exhibit K, a repair estimate, recorded that the total cost of repair to the shipping container was just over $5,000, and would involve a little over 100 hours of labour. The detail contained in that quote does not on its face allow any conclusion to be drawn about the extent of the damage, its precise location nor any measurements by which the shipping container was deformed in the collision.
None of the experts inspected the damaged shipping container. There were no photographs tendered of the damage to the shipping container. It appears that the description that the plaintiff gave to the police (Exhibit G) was that there was "minor damage" to the top of the container.
Although the container was taken back to the yard at Hobbs Bros, none of the employees of the defendant gave any evidence about the state of it, including any damage to it.
The plaintiff gave little evidence about the damage. At T57.12 he said he thought he looked and there was " a bit of a bend on the container ... ". He made it plain that he could not remember exactly what it looked like. Later on in his cross-examination (T67.25), he said:
"I didn't look at the container. I was pretty shaken up. So, the container still looked like a container to me. I didn't do a survey on it or anything."
There was some evidence from the conclave of experts as to the extent of damage to the shipping container. Dr Gibson agreed that there was nothing that he had seen which allowed him to conclude that the damage to the container extended over any identified or measured distance. The other experts did not express any different view from this.
However, Dr Gibson, based upon the interpretation of Exhibit K, the repair quote, inferred that the damage was " quite significant ". Mr McDougall seemingly agreed with this conclusion because he thought that the container was relatively new and had been " written off " and not repaired. The source of this last piece of information was not revealed.
Mr Joy advanced the view rather tentatively that because of the number of components which were replaced, it was likely that the damage was " substantial, ... not minor ".
The evidence is not sufficient to draw any conclusion about the extent of the damage to the shipping container, including the horizontal distance by which the container was deformed. I am not persuaded by the evidence of the experts that I should find any greater damage than that which the plaintiff thought was the case, simply by drawing conclusions from a repair quotation.
As a result, I am unable to find that the container was deformed horizontally by a distance of 30cm, which is one of the factual assumptions the experts were asked to make, as a basis for their opinion.
The evidence permits only of a finding that there was some minor damage to the top of the container, which did not appear, when looked at, to be out of shape in any recognisable way.
The cabin of the motor vehicle
The prime mover, which was a Ford Louisville 9000 Prime Mover, was, at the time of the accident, a relatively old vehicle. It had been built in 1993 and was appropriately registered at the time of the incident. An explanation of some features of it is necessary in order to understand and decide the issues pleaded by the plaintiff. The full detail of these matters can be found in the various expert reports. There was no dispute about the detail of the cabin layout.
The following features of the prime mover, and in particular its cabin, ought be noted. The driver's seat was an air-suspension model known as a "Bostrom 915" seat. Air pressure, which is stored in the truck's main air supply system, is used to raise or lower the seat. This occurs when a push-pull valve fitted to the lower left front corner of the seat base is operated. The seat incorporates a damping system in the suspension mechanism to prevent uncontrolled ongoing bounce-rebound motion in the suspension mechanism. The seat was able to travel vertically from its lowest adjusted setting to its highest adjusted setting through a distance of approximately 15cm.
There was no evidence from the plaintiff as to where the seat was positioned in respect of its vertical travel at the time of the accident.
Dr Andrew McIntosh noted in his report (Exhibit C) that he had measured the vertical clearance between the top of Mr Tarres' head and the cabin roof as being between 25cm and 26cm on the day of his inspection in April 2007. Whilst there was no doubt that Dr McIntosh's measurement was an accurate one on that day, there was no evidence relating the seat position on the day of the measurement when compared to the seat position on the day of the accident.
It is therefore not possible to find with any precision what the clearance was, between the top of Mr Tarres' head when in the driver's seat and the cabin roof, without knowing the vertical position of the seat on the day of the accident.
The pleadings included an allegation of a defect in the seat mechanism. The evidence suggested that there was only one occasion when the seat in the prime mover did not operate adequately. According to the plaintiff's evidence, on one occasion in the four month period that he drove the vehicle, he can remember the air-tube that supplied air to the seat becoming blocked and the airflow into the seat was stopped. Upon noticing that, he freed the air tube and thereafter he experienced no further problems with the seat.
In light of that description in his evidence (T32-T33) and the absence of any other evidence suggesting a defect with the seat mechanism, I am not prepared to conclude that there was any operative defect in the seat at the time of the collision.
The configuration of the inside of the cabin is also a relevant matter. There are some photos of it that assist in the description. Externally, the cabin is a typical cube. The driver's seat is situated so that the back of it is close to, but not touching, the rear wall of the cabin. In front of the driver, in addition to the steering wheel and instruments, there is an overhead console which is shown in a photograph in the expert report of Dr Thomas Gibson of 18 February 2008 (Ex 14, Figure 8). He describes it as a windscreen header panel.
The precise dimensions of the windscreen header panel were not given in evidence. An observation from the photographs suggests that the nearest corner of it to a driver would extend down from the roof by some six centimetres or so and back towards the driver from the edge of the windscreen by about the same distance. Although some of the experts inspected the prime mover involved, none measured the windscreen header panel.
Its presence necessarily narrowed the space which otherwise existed between the roof, the windscreen and the head of a person in the driver's seat.
In the absence of any clear evidence about the internal measurements of the cabin, the height of the seat, and the height of the driver's head, at the time of the accident, I am unable to conclude by how much that space was in fact narrowed, except that it appeared to be about six centimetres or so.
Seatbelt
The other feature of the prime mover's cabin that formed a central part of the factual investigation, and was said to be relevantly a cause of the plaintiff's injuries, was the driver's seatbelt. The passenger's seatbelt was not the subject of any evidence, and was not relevant to the issues in the proceedings. It can be ignored.
The driver's seatbelt that was fitted was a lap seatbelt and not a lap-sash seatbelt. In the joint expert report (Exhibit L), the engineering experts agreed that the seatbelt fitted to the prime mover complied with all relevant Australian Design Rules, including those relevant to seatbelt equipment at the date of the building and the delivery of the truck. I am satisfied that the seatbelt that was fitted included, as part of the assembly of it, a Type 4N Emergency Locking Retractor ("ELR").
On each occasion between August 2004 and July 2008, when the prime mover was inspected by the Roads and Traffic Authority of New South Wales in accordance with the Heavy Vehicle Inspection Scheme, and a report was produced, the seatbelt was passed as suitable for the continuing registration of the vehicle (Exhibit 12).
Although from time to time, it appears that a defect notice was issued as a consequence of these inspections, there was no suggestion that these defect notices had anything to do with the seatbelt. The notices, and the defects identified, all of which were rectified to enable renewal of registration, can be put to one side, because they are not relevant to any issue in these proceedings.
One of the required features of a seatbelt, in order to comply with the Australian Design Rules, was that it incorporated an ELR. This, according to "Australian Design Rule 4/01 - Seatbelts", is:
"a retractor incorporating a locking mechanism that is designed to lock under abnormal operating conditions."
In Exhibit D, Mr Brendan McDougall, a mechanical engineer, reported that with respect to ELR's, there were two basic requirements of the Australian Design Rule 4. The first of these was that for Type 4N seatbelts the retractor must lock when the vehicle is decelerated at more than 8.3m/sec/sec.
The second requirement of Australian Design Rule 4 was that the ELR must lock when the belt is withdrawn from the retractor at an acceleration rate of more than 20m/sec/sec . The design of the ELR is that it should lock with 50mm or less of strap movement.
The joint report (Exhibit L) records the agreement of the experts that the force required to trigger the operation of a Type 4N retractor system, is as follows:
(a) horizontal deceleration of not less than 8.3 m/sec/sec ; and
(b) strap reel-out acceleration of not less than 19.6 m/sec/sec .
I should note that sometimes in the evidence, marginally different figures were used, namely 8.3m/sec/sec and 8.5m/sec/sec, and also 19.6m/sec/sec and 20m/sec/sec. I regard these figures as the same and hence interchangeable for all of the purposes considered in this judgment.
Within the ELR, there are two separate mechanisms. The first, activated by a sensing device, is designed to lock the retractor when the vehicle is decelerated at greater than the specified rate. The second, which consists of cams engaged by inertia, is designed to address the requirement of the speed at which the belt is withdrawn. Another part of the seatbelt mechanism, which is integral to the ELR, is a spring activated retractor mechanism, which retracts the seatbelt after it has been reeled out, so that after being buckled around the driver, the seatbelt is tightened and remains tightened.
The working and mechanism of a seatbelt was described in an uncontroversial way by Mr Alan Joy in his report of October 2007 (Exhibit 16) where he said at page 14:
"9.3.2 The fundamental mechanisms consist of a spring-tensioned reel which retracts the webbing when not in use, but allows some degree of free 'excursion' movement when fastened and there are no 'crash forces' acting on the vehicle or the occupants.
9.3.3 In the event of significant forces being generated by a collision or an overturn, the mechanism will lock the belt reel restraining the occupant and limiting their movement.
9.3.4 The reel which allows a conventional inertia reel seat belt to extend and retract in normal circumstances is equipped with not one but two locking mechanisms.
9.3.5 The first mechanism is one which detects 'abnormally' rapid reel-out of the belt and locks the reel, thereby limiting belt extension and occupant excursion. This is the locking characteristic which most people will encounter in the day-to-day usage of seat-belts as a result of attempting to pull the belt out too fast when putting it on.
9.3.6. The second mechanism is one which detects that the vehicle (to which the reel is bolted) is being subjected to forces in excess of those expected to be encountered in the course of normal operation, eg, forces generated in a collision or an overturn. ...
9.3.7 The two mechanisms operate completely independently of one another."
I accept this description.
It is necessary, against these observations of the type of seatbelt fitted, to attempt to understand the evidence as to how the driver's seatbelt in fact functioned, leading up to and at the time of the collision.
The plaintiff's evidence was that on a number of occasions prior to the accident, the seatbelt did not function the way he understood it should. In his statement (Exhibit A), at [26], he observed that on a number of occasions the seatbelt would not retract and it would remain loose around his lower abdomen. He also said that when he pulled the seatbelt out quickly, it did not always lock. These observations suggest intermittent failures of both of these two parts of the mechanism.
The plaintiff said that he had made verbal complaints to Mr Les Smith about the operation of the seatbelt on more than one occasion and that he did not observe that the particular seatbelt about which he had complained, was removed, repaired or replaced.
The plaintiff also said in Exhibit A at [42], that immediately after the accident had occurred, with the assistance of a motorist, he stepped onto the first step outside his driver's door, which was below the level of the floor of the cabin of the truck, and realised that he still had in place around his lower abdomen the seatbelt which had not retracted. The seatbelt had not been unbuckled. This evidence was pointed to demonstrating that there was a defect in the seatbelt.
The fact that the seatbelt could, whilst still buckled, reel out to the extent which it did, does not, of itself, demonstrate a defect. That is because the seatbelt is permitted to reel out to that extent provided that the rate of acceleration of the reel out is not more than 19.6m/sec/sec. The evidence of the plaintiff that he required assistance from a passing motorist to leave his seat and step down, does not suggest that he was doing so quickly, or at least at a rate of acceleration, such as would necessarily have resulted in the ELR mechanism operating to lock the seatbelt.
In short, this incident is in keeping with the ordinary operation of a properly functioning seatbelt. It does not, without more, support a finding that the seatbelt was defective.
The various employees, to whom the plaintiff said that he complained, had varying recollections about the complaints. Mr Mark Robson, a fellow truck driver, gave evidence that when he had driven the Ford Louisville prime mover the seatbelt had problems with its operation, including that it sometimes did not retract. He had noticed this on between four and six occasions. He described the seatbelt as " ...always a bit dodgy ". Although there was an attack on the accuracy and reliability of his evidence, having seen Mr Robson give his evidence, and in light of the other evidence in the matter, I am satisfied that his evidence ought to be accepted.
Mr Les Smith who was employed as an allocator by Hobbs Bros at the relevant time, recalled that the driver's seatbelt in the vehicle in question had a problem in that it did not always retract. In his statement (Exhibit B) he said that the plaintiff, Mr Tarres, had complained about the condition of the seatbelt on a number of occasions. He said that Mr Tarres was told by him either to make a record in writing of his complaint on the daily worksheet or alternatively to take the truck to the workshop to get the seatbelt fixed.
The workshop was located on the grounds of Hobbs Bros at Ingleburn, although it was run by independent mechanics known as NorthWest Mechanics.
In cross-examination, Mr Smith adhered to his evidence-in-chief that he had a recollection of Mr Tarres complaining to him about the seatbelt. He said that he had himself experienced the seatbelt not retracting on one occasion prior to Christmas 2006, when he observed that the seatbelt was hanging loosely. He attempted to retract it but was unable to do so.
If the seatbelt did not retract, then there must have been a failure of the mechanism to operate correctly. If that happened, on more than one occasion, then it is more likely than not that the seatbelt mechanism was defective.
He reported the seatbelt malfunction, he said, to Mr Lovatt, his superior. I accept the evidence of Mr Smith, which I thought was given with some thought and care, both as to the complaints made to him by Mr Tarres and the complaint he made to Mr Lovatt. I also accept his evidence that he himself had observed a problem with the seatbelt when it did not retract.
Mr Lovatt, who was a manager at Hobbs Bros, gave evidence that the plaintiff did not make any complaints to him about the seatbelt in the prime mover, nor did any other drivers of that prime mover. He said that he did not recall whether Mr Smith complained to him.
He also gave evidence that the maintenance records for the vehicle, which were produced in Court, did not record any such complaint. The fact that the records that were produced did not contain any notification of any concern whatsoever about a seatbelt was not in contest. However, the evidence of Mr Lovatt also made it clear that the records that were produced were not necessarily the entirety of the maintenance records for the vehicle. He accepted that the records were incomplete.
The plaintiff did not suggest that he made any complaint to Mr Lovatt about the seatbelt not working. However, Mr Smith said that he did speak with Mr Lovatt. The evidence on this subject is in conflict. On this topic, I prefer the evidence of Mr Smith who seemed to me to be more forthright in giving his evidence than did Mr Lovatt, who seemed reluctant to make any admission which he perceived might compromise the interests of Hobbs Bros. As well, the subject matter of the complaint, namely that the seatbelt did not work properly, was corroborated by the evidence of the complaints by the plaintiff to Mr Smith, which I accept, the observations of Mr Smith and Mr Robson, and the inherent likelihood that given the state of the seatbelt, and Mr Tarres' nature, he would not have held back from voicing any complaints.
Mr Turner who was relevantly the principal mechanic at the Ingleburn site, denied any recollection of any complaint being made about a seatbelt.
Mr Turner's evidence was that at regular intervals when the vehicle was serviced, one of the requirements of the service was that the retracting capacity of the seatbelt was tested, and if it were found to be faulty at that or any other test, then the whole seatbelt would be replaced. That course was followed because it was cheaper and more efficient to simply replace the entire seatbelt than to try and repair it.
I accept that Mr Turner was doing his best to recall whether he had received any complaint about the seatbelt, but the fact is that he was one of a number of mechanics, albeit the principal one, at the workshop. The workshop looked after the whole of Rozelle Storage carrier's fleet, which included many different trucks. Mr Tarres' evidence that he complained to "the mechanics" about the seatbelt can be readily accepted, and is not inconsistent with that of Mr Turner because he may well have, and I find that it is more likely than not that he did, complain verbally to a mechanic other than Mr Turner.
Accordingly, I accept that there were two or three occasions, as the plaintiff said, when he complained about the defective operation of the driver's seatbelt on the prime mover that was later involved in the accident, either to Mr Smith of Hobbs Bros, or else to the mechanics at NorthWest Mechanics. The complaint to NorthWest Mechanics was made in accordance with directions that the plaintiff received from his superior at Hobbs Bros.
The seatbelt was inspected sometime after the accident by a number of the experts.
Dr Andrew McIntosh inspected the truck and the seatbelt on 26 April 2007. He recorded that the seatbelt buckle functioned and did not undo under manual loading. He also reported that the seatbelt retractor did not always lock when he pulled the belt rapidly. He said that it "... did not always lock in a reliable manner ".
Mr McDougall did not undertake any particular inspection of the seatbelt itself.
Mr Alan Joy inspected the prime mover on 5 October 2007. At that time he found that the belt rolled out and retracted in a normal manner at typical rates of reel out normally associated with extending the belt to fasten it. He reported that rapid reel out of the belt resulted in locking of the reel on most, but not all occasions.
Dr Gibson inspected the prime mover on 15 November 2007. He assessed the seatbelt and found that on each occasion when he tested it, it operated as expected - it locked when subjected to a rapid spooling out motion. He noted that the seatbelt buckle was functional.
When considering this question in the joint report, the experts noted that the testing of the seatbelt in situ was limited. The report noted that the method of testing had a number of limitations incorporated into it. The experts all agreed that the testing carried out by Dr McIntosh and by Mr Joy, did not exclusively indicate a defect.
The experts then considered the question of whether there was a defect in the seatbelt that required repair or replacement. The experts answered the question this way:
"15(a) The experts' testing did not confirm a defect but indicated the need for further investigation of the alleged fault."
No further investigation of the alleged fault was apparently carried out.
The experts were asked to express an opinion as to whether there was a defect in the mechanism of the lap-sash seatbelt, consistent with it not locking in the manner described by the plaintiff and the assumptions which they were given which generally accorded with the description he gave of what happened in the accident.
The agreed response to that question was this:
"15(b) The results of the testing were possibly consistent with there being a defect in the mechanism of the lap seatbelt leading to it not locking in the manner described by the plaintiff in the ... assumptions.
The tendency of the belt to not lock on some occasions when reeled out manually in testing is not exclusively consistent with there being a defect in the mechanism."
These opinions were explored in oral evidence with the experts.
It was plain from that evidence that the reservation of the experts in their joint opinion, about whether the testing revealed a defect in the mechanism, related to the less than scientific nature of the testing methodology. However, as was indicated, the test used was the same as that carried out for the purposes of registration and therefore one would expect that if it were applied on a sufficient number of occasions it would be, broadly speaking, accurate. I accept what Mr Joy said at T262.44 with respect to the test that:
"...it has that subjectivity about the rate at which we pulled the belt out."
The evidence of the experts about their testing does not cause me to doubt the accuracy of the evidence of the various lay witnesses to which I have earlier referred which satisfy me that there was a defect in the seatbelt.
Collision forces on the prime mover
The experts were asked to identify the forces likely to have acted upon the prime mover, and separately the forces acting upon the plaintiff, when and immediately after the container struck the bridge.
Care needs to be exercised in considering the experts' opinions as written in their individual reports and in the joint report. This is because a number of the factual assumptions which they were asked to make have not been proved. In particular, the assumptions as to speed of the vehicle at the point of collision and the extent of deformation of the shipping container have not been established by the evidence.
Accordingly, absolute calculations as to velocity and force are unlikely to be accurate. However, apart from these matters, the lack of factual foundations did not derogate from the analysis of the experts, particularly as to the nature and direction of forces acting on the prime mover, and then the plaintiff within the prime mover cabin.
The experts agreed that the initial force acting on the prime mover and trailer was directed rearwards. They agreed that this was a brief high intensity force that would have decelerated the vehicle rapidly, but the magnitude of the force was uncertain.
In addition, three of the experts, Dr McIntosh, Mr McDougall and Mr Joy, were of the opinion that this rearward collision force on the trailer would also have created the conditions for causing a vertical motion of the cabin of the prime mover, which would relate to either or both of the forces generated by the container striking the bridge or the forces generated by engine torque.
Dr Gibson agreed that the rearward collision force might have created the conditions for causing a delayed vertical motion of the cabin of the prime mover. He said that the magnitude of that vertical motion would be unknown but that it would be of significantly lower magnitude than the horizontal force.
Mr McDougall and Mr Joy also agreed that an additional and immediately subsequent vertical motion might have been imparted to the plaintiff, when the container deformed and was pulled under the bridge.
In the course of oral evidence, the experts' views on these forces were the subject of further discussion. Dr Gibson explained that by reason of the interaction of the forces on the container, the trailer and the prime mover, the back of the prime mover would be lifted up after the initial motion had ceased. Dr McIntosh agreed with Mr Gibson but refrained from expressing any view as to what the force was, and what the movement was in terms of distance, degree or angle.
Mr Joy agreed that there would be vertical forces and agreed with Dr McIntosh's view that it was not possible to form any opinion about the timing and the magnitude of the vertical forces. Mr McDougall agreed but thought that the matter was somewhat more complex. He also pointed out that the totality of the movement of the vehicle would probably occur in one to two seconds and that the forces which were being discussed and described would, as a primary force, generally occupy the first few 100 milliseconds.
He, too, was not prepared to give any opinion about the magnitude of the forces. Mr McDougall concluded by saying (T225.34) this:
"I think it's a very complex motion which may go on here and I can't say - I believe there will be vertical forces involved. The magnitude of those, I just - with the information that we have got, I just can't quantify the magnitude of those forces."
In an attempt to summarise their opinions, I posed this question (at T227.4):
"Now, would I be safe, gentlemen, then to conclude that on the assumptions you have made about how the accident happened, and leaving some generality around the measurement of deformation, other than to say that it was of some significance because of the repair needs articulated, would I be safe to conclude that the initial primary force would be in a rearward motion, as your report all agrees on, thereafter there will be a complex of forces which will act on the prime mover in a complex way over a relatively short space of a second or two or three seconds. And whilst there may be a complex of forces, on the amount of information you have, it is not possible to tell with any precision the predominant one of those forces, or the strength of those forces. Would that be a fair way of summarising the conclusion on this topic?"
Dr Gibson thought that the forces that occurred after the rearward motion would be significantly lower and delayed. Mr Joy agreed with Dr Gibson that any subsequent force would be lower. Mr McDougall agreed that the peak force would be lower and Dr McIntosh did not demur.
I will accept these conclusions.
Impact of forces from prime mover to driver
Having established the forces acting upon the cabin of the prime mover, the experts were asked to agree on the forces that acted upon the plaintiff as the driver in the cabin.
The experts all agreed that the motion of the plaintiff would initially continue forwards until he was either restrained by his seatbelt or until he encountered some part of the interior of the vehicle. The steering wheel and its position with respect to the plaintiff was identified as a relevant possible feature which the plaintiff may have either struck, or else been restrained by.
Vertical motion
Generally, it was thought there would be some subsequent vertical motion relative to the movements of the cabin. As Mr McDougall said with respect to that:
"It may not be perfectly at the same time, so that the cab may be going up and the driver may moving down...or vice versa." (T232.38)
The experts were also agreed that the motion of the driver in the cabin would occur in a very short space of time immediately following the impact with the bridge. It was agreed that the time frame was within one to three seconds.
It is important to note when dealing with any question of vertical motion, because a properly fitted, adjusted and functional seatbelt would aim to keep the driver in contact with the seat, one is dealing with relative motion of the driver within the seatbelt and relative to the cabin. In other words, the question is what would then happen if the cabin were moving downwards and the driver upwards or, alternatively, if the driver were moving upwards and the seat moving upwards but at a different rate?
Each of the experts agreed that there would be a vertical motion of the driver relative to the cabin, except for Dr Gibson who restricted his agreement to the possibility of vertical motion. It was also agreed that, subject to two qualifications to which I will shortly come, a lap seatbelt properly adjusted would ordinarily restrain vertical motion of a driver. That is because the two anchor points of a seatbelt, each of which with a fixed point in the cabin, would restrain the driver (if they are operating correctly) from vertical movement differentially with the cabin.
There were two exceptions identified to this agreement by Mr Joy, namely,
(a) whether the seatbelt was correctly fitted with the occupant seated normally. In other words, Mr Joy identified a possible reason why the seatbelt would not perform adequately, namely that if the occupant was seated in an unusual anatomical position relative to the way in which the seatbelt was meant to operate.
Dr Gibson agreed that in his experience, a lot of occupants are not correctly seated and fitted with a belt. Dr Gibson made a point in his evidence (T272.30) that in this particular case, if the plaintiff was leaning forward at the time, there would be a much greater likelihood of hitting some area of his head on a part of the vehicle, because he would be closer to other parts of the vehicle; and
(b) that from time to time Mr Joy had observed that seatbelts, otherwise operating entirely correctly, did not instantly restrain the occupant but rather allowed a small amount of additional reel out which would mean that the occupant was not firmly restrained.
Both of these exceptions meant that although a seatbelt might be free of any defect and operating correctly, the occupant might not be restrained.
Each of these can be dealt with briefly. Regarding the first exception, the plaintiff gave evidence that as he approached the bridge, the lap seatbelt was secured around his midriff in a normal, firm fashion. As well, the evidence was that as the vehicle was proceeding under the bridge the plaintiff was driving it in a normal manner and commenced to accelerate. He was not cross-examined on any of this evidence. From this evidence I would be prepared to infer that the plaintiff was sitting normally in his seat, and that his body position was neither unusual nor was it a cause of the seatbelt failing to restrain him. If the defendants wanted to rely on this exception, then they needed to address some cross-examination to the plaintiff to establish that his bodily position was out of the usual. They did not.
I am prepared to conclude that the plaintiff was sitting in an ordinary typical anatomical position with the seatbelt fastened firmly around his waist. The first exception to which Mr Joy referred, is not established by the evidence in this case.
As to the second exception, namely that there is some, in effect, allowable slack in an otherwise properly operating seatbelt, Mr Joy gave that evidence based on upon conclusions in some cases. There is no evidence that the seatbelt in this case worked in any way along those lines. Such testing as was done by the experts after the accident did not suggest an operation of that kind. In short, there is no evidence that supports that exception as being an available inference or conclusion in this case.
Vertical velocity
None of the experts felt able to express a concluded view as to what the actual vertical velocity, or force, was which acted upon the plaintiff at the time, or immediately after the collision. Equally, each was agreed, assuming that the seatbelt operated correctly, that the plaintiff's body would have stayed in contact with the seat and have been restrained from moving, assuming the seatbelt worked correctly.
The threshold force required to restrain the plaintiff in position in the seat was 8.5m/sec/sec. In other words, once the speed of the movement was at or more than 0.85g, then the threshold for operation of the seatbelt locking mechanism had passed, and accordingly it should immediately lock, thereby restraining the plaintiff.
Mr McDougall gave evidence that it was his opinion that there would be no separation between the driver and the driver's seat unless there was a differential in acceleration in excess of 1g. At T258.6 he said:
"If there is no differentiation of 1g, his weight will hold him, gravity will hold him in the seat, so if there is a differential in acceleration of 1g, then I think this should lock given that it was supposed to lock at 0.8g. I think that is correct."
Neither Dr Gibson nor Dr McIntosh expressed any view. But Mr Joy considered the matter and then gave this explanation of his understanding at T258.25:
"In simple terms, the proposition Mr McDougall has just put, that if there is a differential between the movement of the person in the seat and the seat in excess of 0.85g then locking should occur. In other words, if the upward movement of the seat to which the inertia reel is attached, the upward movement decelerates at more than 0.85g, the locking threshold for a 4N belt, then locking should occur."
He was then asked whether he had any disagreement with Mr McDougall and he said:
"No. In essence I don't disagree with what he just said."
As I understand the effect of this evidence, it is this: the force of gravity is 1g. If one assumes that the only force which is operating on the driver and the cabin (including the seat) is gravity, then the driver will remain in contact with the seat and the seatbelt will hold him in place.
If there is a differential vertical motion so that there is a deceleration greater than 0.85g, then the seatbelt should lock and restrain the driver. Necessarily, in order to overcome gravity and project the driver in an upward motion, the force has to be greater than gravity, namely 1g. In those circumstances the seatbelt ought, if it is operating properly, to lock and keep the individual firmly fastened and restrained in his seat.
I accept this evidence. In short, this means that if the plaintiff could be separated from his seat, which was necessary if his head was to strike the roof of the cabin, then the forces were such that the seatbelt should have operated so as to restrain him from doing so.
Significance of injury location
A number of the experts regarded the presence (or absence), and the location of the injuries, to the plaintiff as being important. I have previously identified at [51]-[57], some of the plaintiff's evidence on this issue.
There were no injuries to any other part of Mr Tarres' body recorded. Of particular note was that there were no chest or abdominal injuries. There was no bruising consistent with the seatbelt having restrained the plaintiff, of a kind that are seen from time to time in motor vehicle accidents. There were no facial injuries. The absence of these type of injuries led Dr McIntosh to opine that there was no forceful impact of the plaintiff with any other part of the vehicle. He reasoned that the only impact was between the top of the plaintiff's head and the ceiling of the cabin. Both Mr McDougall and Dr McIntosh expressed the opinion that the fact of the impact to the top of the plaintiff's head causing the spinal compression injury was consistent only with the seatbelt having failed to operate correctly.
Mr Joy did not entirely agree with this reasoning or opinion. He advanced the two reasons for his disagreement (T272) as being the possibility of the two exceptions to which I have earlier referred. As indicated earlier, I do not regard those exceptions as having factually occurred in this case and accordingly, I do not regard Mr Joy's evidence as denying the connection between the head injury and the seatbelt failing to operate correctly.
Dr Gibson's view was that it was more likely that Mr Tarres had struck his head on the windscreen header panel, with the seatbelt operating to restrain his pelvis from moving, but with his head and upper body articulating forward until it struck the panel.
The basis for this opinion, which was expressed first in his report of 18 February 2008 (Exhibit 14), and adhered to in his evidence, seems to be a combination of two principal features:
(a) his opinion, which was generally shared by other experts, that the seatbelt mechanisms are very reliable, and therefore it would be unexpected and unusual for a seatbelt to fail to lock; and
(b) his demonstration of the movement of the body of a volunteer within the cabin. The photographs in Exhibit 14 depict adequately this demonstration.
Whilst I accept the experts' opinion about the general reliability of seatbelts, the fact in this case was that the seatbelt in this truck did have a defect in it before the accident. This diminishes, if not entirely removes, the element of reliability as being important in this case.
I do not think that the demonstration is a sound basis for his conclusion in this case. That is because of the differences and uncertainties surrounding it. They are:
(a) the volunteer in the demonstration was 180cm tall. Mr Tarres is 170cm tall;
(b) the anthropomorphic features of the volunteer and Mr Tarres were not, in fact, compared. Did one have, proportionally speaking, longer legs than the other; did one have, proportionally, a longer neck than the other? These features were agreed to affect what ought happen to a driver (T236.48-T237.10);
(c) the height of the seat, and the weight of the driver which can affect the operating height of the seat were unknown, for both Mr Tarres at the time of the collision and the volunteer in the demonstration. These matters would affect the likelihood of a driver travelling forward being able to strike his head on the windscreen console. (T237-T240).
It is clear to me from these matters, and the evidence of the experts about this demonstration including that of Dr Gibson, that it is an unreliable basis for grounding any conclusion that it was possible, let alone likely, that a driver's head would collide with the windscreen header panel with the seatbelt operating correctly.
I am not persuaded that I should accept this opinion of Dr Gibson. On the contrary, I am persuaded by the contrary opinions of the other experts.
On this issue, I prefer the clearly expressed opinions of Mr McDougall and Dr McIntosh, over what seems to me to be the agreement of Mr Joy to, and the opinion of, Dr Gibson.
Conclusion on the seatbelt
I conclude therefore, from a combination of facts which I will briefly outline, that the seatbelt should have, but did not, operate so as to restrain the plaintiff and prevent his head hitting the roof of the cabin. The factors are these:
(a) there is no doubt that there was an element of vertical force imparted on the plaintiff in the course of the collision;
(b) the vertical forces in the very short period immediately after the collision were of sufficient magnitude to have crossed the threshold for the operation of a seatbelt, namely, 8.5m/sec/sec (0.85g);
(c) the only other likely collision point for the plaintiff's head, was a windscreen header console. Having regard to the plaintiff's height and the position of the truck's steering wheel, it is unlikely in my view that the plaintiff's head could have collided with the console without his body first colliding with the steering wheel and other parts of the infrastructure within the cabin;
(d) there are no injuries consistent with any such collision having occurred and the distances involved make it unlikely that his head alone could have struck the console;
(e) the absence of any other injuries (facial, abdominal or the like) together with the plaintiff's evidence and the objective diagnosis of his injuries, all point to a collision between the top of his head and the roof of the cabin as being the most likely mechanism;
(f) this ought not have occurred if the seatbelt had been operating correctly.
Breach of Duty
Because this proceeding is one to be considered under the Motor Accidents Act 1988, the test for breach of duty is that which is well known in the common law.
It was stated by Mason J in Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48 where his Honour said:
"In deciding whether there has been a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal in fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
It is a well-known, perhaps notorious fact, that a properly fitted and operating seatbelt is intended to, and will, have the effect of restraining a person in their seat in the event of a collision. This restraint prevents the person being tossed around inside a vehicle, or perhaps ejected from a vehicle, and thereby minimises the prospect of any injury occurring.
So obvious and well supported by scientific research was this fact, that many years ago the various Parliaments throughout Australia introduced legislation making the wearing of seatbelts compulsory. In other words, the role and purpose of seatbelts is well known, and beyond debate. The risk of injury to a driver of a motor vehicle who was not restrained or not properly restrained by a seatbelt was clearly foreseeable and required a response. It could not be ignored.
The plaintiff's case on breach of duty was that:
(a) the seatbelt in the prime mover had been the subject of intermittent defects for some time prior to the plaintiff's accident. Hobbs Bros and Rozelle Carriers were on notice of those intermittent defects and should have, but failed to, remedy the defects by having the seatbelt replaced; and
(b) the defendants ought to have upgraded the lap seatbelt to a lap-sash seatbelt which was safer and which could have been installed at no great expense.
There was initially an allegation that the seat in the Ford Louisville prime mover was defective. That allegation was ultimately abandoned. There was no evidence to support such an allegation.
In considering the first of the allegations on breach of duty, it is necessary to consider the findings which I have earlier made about complaints which were made, and the context or knowledge of the defendants at the time those complaints were made.
In March 2010, the applicant was assessed by Ms Sue Barbuto, an occupational therapist.
Ms Barbuto reported that although there had been significant difficulty in undertaking the assessment, that there was a need for assistance by way of attendant care from the time of the accident up until when she saw the plaintiff, and that there would be a need for future attendant care and domestic assistance.
Ms Barbuto concluded that by the time of her assessment, Mr Tarres was substantially independent regarding personal care but required occasional assistance with hair washing and drying himself.
With respect to domestic assistance, she recorded this:
"Since Mr Tarres and his wife have separated I gather that he has performed the routine domestic tasks of loading and unloading the dishwasher, cooking, laundry, ironing as needed, making and changing his bed linen (the latter with difficulty), small amounts of shopping and occasional other tasks such as putting out garbage. Mr Tarres described the need to pace himself and alter his work methods to avoid significant exacerbations of pain. As Mr Tarres indicated that he is in pain twenty-four hours per day, he needs to work around his pain experience."
She recommended that two hours per week by way of domestic assistance was necessary in order to assist Mr Tarres living alone with the heavier of the relevant domestic tasks. She expressed the view that he would require some assistance in due course with shopping, that he would require a contractor to undertake lawn mowing and home maintenance tasks.
Agreement of the parties
The parties agreed on a number of matters relating to damages. They were:
(a) the plaintiff's future life expectancy would end at 74 years of age;
(b) the proper and reasonable sum to be allowed for past care and domestic assistance is $35,000;
(c) the proper and reasonable sum to be allowed for future care and domestic assistance is $135,000;
(d) past out of pocket expenses amounted to $75,500;
(e) the plaintiff's whole person impairment was assessed under the Motor Accidents Compensation Act 1999 ("MAC Act") as greater than 10 per cent;
(f) the plaintiff's most likely future circumstances, pursuant to s 126(1) of the MAC Act are that but for the injury, he would have continued to work as a truck driver for Hobbs Bros Pty Ltd or some other trucking company, earning $775 net per week from the date of the accident, up to the present and into the future.
Note the award of damages for economic loss based on this finding is dependant upon further findings as to how long the plaintiff would have worked but for the injury and the plaintiff's residual earning capacity;
(g) if any separate award is to be entered in relation to equipment, the cost of future equipment is $600; and
(h) the amount to be awarded pursuant to the principles contained in the decision in Fox v Wood [1981] HCA 41; (1981) 148 CLR 438, is $11,786.
The heads of damage which remained in dispute were:
(a) non-economic loss;
(b) future medical treatment expenses;
(c) past economic loss; and
(d) future economic loss.
I note that the effect of the concessions of the defendants, that the plaintiff exceeds the threshold of 10 per cent whole person impairment required under the MAC Act, means that the plaintiff has an entitlement to damages for non-economic loss.
ONGOING DISABILITY OF THE PLAINTIFF
The contest between the parties essentially related to the extent to which the plaintiff continued to be troubled by symptoms which related to his motor vehicle accident.
In short the defendant submitted that the plaintiff was manifestly exaggerating the extent of his disabilities.
As well this raised issues surrounding the plaintiff's residual capacity for work.
It is necessary to examine the plaintiff's evidence together with evidence tendered by the defendant which tended to cast doubt upon the veracity and accuracy of the plaintiff's evidence.
The evidence of Mr Tarres
The evidence-in-chief of Mr Tarres was largely given by statement (Exhibit A). A careful reading of that statement insofar as it dealt with damages suggests that the plaintiff has been most significantly affected by the neck injury. The description of the effects of the neck pain on him, which the plaintiff gives in his statement, suggests this:
(a) he is presently taking eight Panadeine Forte tablets on a daily basis, and occasionally using MS Contin, a very strong analgesic, for pain relief;
(b) the medication regime is necessary to enable him to function at all;
(c) even with medication, the plaintiff is in severe pain at all times. The effect of the pain is that he has to carefully monitor his activities, undertake the more strenuous ones in short periods of time, and his pain is aggravated by undertaking any such activities;
(d) in addition to neck pain, he suffers headaches on a regular basis which last for some days, requiring him to retire to bed;
(e) generally speaking, colder months of the year are worse than warmer months of the year; and
(f) he requires domestic assistance in order to survive at home.
In addition to this description of his physical injuries and disabilities, the plaintiff describes " ... significant psychological trauma as a result of my injuries ". He says that he has become socially isolated, he is unable to work, go for a run, ride a bike or escape the continual pain that he is suffering. He said he had become very depressed, had suicidal thoughts and lacked any self-worth. He gave evidence that in his view, within six months of the accident, his relationship with his wife deteriorated to a point where it became obvious during 2009 that their relationship would not continue.
His oral evidence-in-chief was largely to a similar effect. He said that he had been unable to find work and that his pain and other symptoms, and his difficulties and restrictions in his daily activities described in the statement, continued up to the time he gave evidence.
A different picture emerged in cross-examination, which has led me to doubt the truthfulness and accuracy of the plaintiff's evidence about the extent of his symptoms.
In cross-examination, the plaintiff initially asserted that he was in pain 24 hours a day whilst ever he had been conscious.
He complained that he was unable to sit for any lengthy period of time and that when driving, he had real difficulties and it was painful.
I gained the clear impression from the plaintiff's evidence that he was able to do very little activity, he was essentially constantly in pain and that even when the pain was relieved by medication, he continued to have real difficulty.
The defendant showed a film, which was taken on 25 February 2011. That film showed that for a period of over an hour, starting at about 2.30pm, the plaintiff gave a driving lesson to a young woman who was his wife's sister's daughter. A careful observation of the film does not suggest that Mr Tarres had any of the difficulty about which he had given evidence. On the contrary, it appeared to me that he was able to move his head and neck about whilst sitting in the passenger's seat gesticulating in an attempt demonstrate his instructions to the learner driver. He was also able to remain seated, without apparent pain or discomfort for the whole of the lesson.
At the conclusion of the lesson, the plaintiff then refuelled the motor vehicle being driven. It was suggested to him that it did not appear that he had an difficulty in:
"... sitting in the passenger's seat gesticulating as required and obviously turning your head towards the instruments, the roadway, the mirrors, looking down at the kerb, looking forward as you gesticulated to her what to do." (T79.33)
The plaintiff answered that although he was able to turn his body, he was not turning his head and that he was still in a lot of pain. He said:
"It doesn't look like I'm in pain, but I am still in pain. I still got to live."
My observation of the film did not accord with the plaintiff's answers to which I have just referred. I had the clear impression that he was capable of turning his head, albeit it with a little difficulty. He did not appear in pain and his level of activity did not reflect that he was in pain.
As well, the defendants showed a number of other video films of the plaintiff's activities on different days, and at different times during the day. From these videos, I obtained a distinct impression that:
(a) The plaintiff's evidence that he was constantly in pain, even if he had taken medication, was not correct. In the videos shown in Court, there were no obvious indications that the plaintiff was in any pain;
(b) he had the capacity to undertake a reasonable range of activities, which he denied to some doctors, and in his evidence that he could do; and
(c) at the times when he was observed, in particular when interacting and conversing with others, he does not appear to be obviously depressed or unable to show appropriate emotional response.
I do not accept the plaintiff's answers that he gave with respect to how he was feeling during the course of this driving lesson, nor do I accept his evidence about the type and duration of his pain more generally.
He agreed that he had given four or five driving lessons to the learner driver in question during 2001, and that the others had been both longer and shorter than the approximately one hour period during which he was filmed.
It was put to the plaintiff as a result of what was demonstrated in the film, that there was nothing to stop him from giving driving lessons during ordinary business hours. He responded that if he was in pain he did not think he would be able to. It was put to him that there was nothing to stop him working part-time as a driving instructor. He asserted that there were potential problems with this type of employment, but agreed he had never tried to get a job as a driving instructor.
I do not accept the plaintiff's evidence that he is unfit to work part-time as a driving instructor. The medical reports and opinions to which I have referred above (other than that of Dr Conrad, which I do not accept) suggest that the plaintiff would have a capacity for part-time work for a number of hours on a number of days of each week. The film that was tendered demonstrates that that capacity includes being a driving instructor. The plaintiff's history suggests that he was an expert driver and accordingly, would be sufficiently skilled to undertake that task.
I am not persuaded that he is unfit to be a part-time driving instructor, on the contrary I am persuaded that he is fit to undertake some part-time work, including work a driving instructor.
The medical opinions, which I accept, do not suggest that he is fit to do that or any other job, five days per week, eight hours a day. Indeed that proposition was not put to the plaintiff, nor advanced in final submissions by the defendants.
In cross-examination, the plaintiff agreed that through the relevant workers compensation insurer he had been referred to a rehabilitation provider called "Konekt Australia Pty Ltd". That organisation arranged a work trial for him. He agreed that he made no effort to attend the work trial. He agreed that the organisation had suggested that he might attempt employment in a range of occupations such as a transport allocator, dispatch supervisor, transport coordinator, office manager and similar occupations. He agreed he had made no effort to obtain any work of that kind.
He agreed he was able to attend and undertake tertiary studies at Macquarie University, attempting to obtain an Arts degree. As at the date of hearing he was a little less than quarter of the way through that degree.
In summary, I formed the distinct impression from observing the plaintiff giving his evidence, closely attending to the medical opinions and observing carefully the various video films that were tendered about him, that he was overstating the extent of his pain and disability.
Whilst I am satisfied that the plaintiff sustained the injury of which he complained, and had surgery which has stabilised his condition and provided some relief to which I have referred above, and whilst I am satisfied that the plaintiff continues to have a degree of pain and disability associated with his neck injury, I am not satisfied that it is as bad as he sought to make out. I am not satisfied that he is completely unfit for work.
In my opinion, he is fit to work for the equivalent of one day a week, although it may be necessary for that to be spread over more than one day.
A question arises as to when Mr Tarres was first in the position to exercise this residual earning capacity. Dr McGee-Collett thought that he had this capacity by July 2009. Dr Manohar thought that by February 2009 had had some capacity for part time work. In February 2009 Dr Smith though that he would become fit at some point in the future. By September 2009, on my impression of Dr Matheson's opinion, the plaintiff had some residual capacity for work.
Applying an impressionistic approach and allowing some time (notionally) for the plaintiff to obtain employment, I am satisfied that he had a reliable residual work capacity from 1 January 2010. Until then, I am satisfied that he was unfit to work.
Non-Economic Loss
Section 131 of the MAC Act provides that there needs to be a greater than 10 per cent impairment of the whole person. As I have recorded above, the defendants have accepted that the plaintiff has, at least, that degree of whole person impairment. The defendant accepted, thereby, that Mr Tarres was entitled to an award for non-economic loss, assuming that liability was established.
The assessment of non-economic loss under the MAC Act mirrors the assessment that would have been made at common law, subject to the imposition of a ceiling, which presently is $450,000.
Unlike the proportionality approach to non-economic loss in the Civil Liability Act 2002, the provisions of Part 5.3, and in particular ss 131 and 134 of the MAC Act do not require such an approach.
Once the relevant threshold is passed, as it is in this case, then the Court is to assess damages for non-economic loss without any statutory restraint: see Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199 at [39] per Heydon JA.
An award of general damages (non-economic loss for damages caused by motor vehicle accidents) is intended to compensate a plaintiff for the pain and suffering through which they have gone and will continue to go through, for the loss of the amenity of their life through which they have gone and through which they will go, and for the loss of enjoyment of the life which they had and which they cannot now continue to have. It is designed to compensate for all of those individual things, often too numerous to list, which fall within these general descriptions.
I take all of the matters into account to which I have earlier made reference with respect to the impact that this accident has had on Mr Tarres. I note in particular that he has suffered from a degree on ongoing pain and the psychological condition of depression. He was obviously a person who enjoyed driving heavy motor vehicles and is now no longer able to do so. However, on the other hand, although he is in pain from time to time, he is still able to care for himself to a very great extent, he is mobile and able to walk and drive, albeit with some difficulty on some occasions. He retains his full intellectual capacity.
For all of these matters, for non-economic loss, I assess $200,000 as being the appropriate and reasonable sum for Mr Tarres.
Economic loss
Past economic loss
It was agreed between the parties, as I have recorded above, that the plaintiff would most likely have earned $775 net per week from the date of the accident, up to the date of judgment and into the future, as a truck driver for Hobbs Bros. The issue is, particularly having regard to his other complex medical conditions, how long he would have continued to drive a heavy vehicle.
It is now a little over four and a half years since the accident. The plaintiff, who was born on 5 April 1954, is now aged 57. I do not doubt that he would have worked as a truck driver from the time of the accident in 2007 until now, and into the future. The totality of the evidence satisfies me that the plaintiff is unfit to work again as a truck driver, which occupation he had followed for many years.
As I have earlier found, until 1 January 2010, I am satisfied that the plaintiff was unfit to return to any form of occupation.
Since the beginning for 2010, on the totality of the evidence, I think that the plaintiff has retained a residual capacity for work. This is a capacity for work in a wide range of jobs that would be readily available in Sydney, but the plaintiff has made no effort to obtain any such work.
In determining the residual earning capacity of Mr Tarres, I have done so by reference to his individual characterisation in the labour market: Nominal Defendant v Livaja [2011] NSWCA 121 at [65].
Because he lives in Sydney, it can be expected that there is a ready availability of jobs of the kind suitable to him. I am satisfied that his residual capacity is one which could be readily exercised.
My assessment of his residual earning capacity is that he would be fit to work one out of the five days that he would otherwise have worked. I assess his residual earning capacity as being 20 per cent of his economic capacity, which was being fully exercised at the time of the accident.
Accordingly, his economic loss to date is tempered by the fact that he could have, and in my finding would have, been able to obtain employment from January 2010. The fact that he made no effort to obtain any employment does not seem to me to impact upon an assessment of his residual earning capacity.
The parties can calculate the precise figures for his past economic loss.
Future economic loss
As for the future, in accordance with s 126(1) of the MAC Act, and the parties' agreement, I am satisfied that the plaintiff's most likely future circumstances are that, but for the injury, he would have continued to work as a truck driver for Hobbs Bros Pty Ltd or some other similar trucking company, earning $775 net per week.
The next question is for how long it is likely that the plaintiff would have worked, given his particular circumstances and his other illnesses and disabilities. I think it likely that the plaintiff would have worked to age 65 as a truck driver and thereafter retired. I will proceed with the assessment of future economic loss upon that basis.
The relevant steps to be addressed when applying s 126 of the MAC Act were considered by the NSW Court of Appeal in Kallouf v Middis [2008] NSWCA 61 at [7] where McColl JA and Hall J said:
"Section 126 is in the same terms as s 13 of the Civil Liability Act 2002. The provisions of the two sections have been considered by this Court on a number of occasions: Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; (2004) 41 MVR 235; Penrith City Council v Parkes [2004] NSWCA 201; Nominal Defendant v Lane [2004] NSWCA 405. The principles established by those cases as to the application of s 126 have been summarised by P A Leslie and M M G Britts, Motor Vehicle Law in New South Wales, 4th ed (1993) (at [13.7792]) as follows:
(a) assess the 'most likely' of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration);
(b) assess the claimant's economic prospects as a consequence of the accident;
(c) compensate the claimant for the difference between (a) and (b), including, where appropriate, through the use of a buffer;
(d) adjust (c) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (a) even had the accident not occurred; and
(e) include a statement of the assumptions made as to the claimant's most likely future circumstances and the appropriate percentage adjustment."
The first step required by this approach is to assess the most likely of the possible future circumstances facing the plaintiff. As I have said, the parties have agreed on this and I adopt their agreement and make a finding accordingly.
In other words, Mr Tarres would have continued to work as a truck driver for Hobbs Bros Pty Ltd or some other similar trucking company earning $775 net per week, until the age of 65.
I next have to assess the present residual earning capacity of the plaintiff, or alternatively as it is put in Khallouf , the claimant's economic prospects. In my opinion, as I have held above with respect to the past, the plaintiff is capable of doing one day a week of work. It may be necessary for this to be spread over a number of days, but in total I assess his residual capacity as amounting to 20 per cent or one-fifth of his pre-accident capacity.
Accordingly, the plaintiff will be entitled to a sum that reflects the net present value (on the 5 per cent tables) of 80 per cent of $775 net per week, until the age of 65.
I am required by s 126 of the MAC Act to adjust this monetary value of lost earning capacity by an appropriate percentage for the vicissitudes of life.
There is always a risk that Mr Tarres would not have been able to work through to age 65. Perhaps his current condition and illnesses may have interfered. Perhaps he may have been otherwise unable to continue his work, there may have been periods of time when he was not in full-time employment because contracts were not available, or there may have been other adverse vicissitudes resulting in his not working through to age 65. I would assess the likelihood of him working through to age 65 as being 85 per cent. In other words, I would deduct the conventional 15 per cent for vicissitudes.
There was no claim made for superannuation with respect to his future economic loss and, accordingly, I make no allowance for that.
The parties should calculate the proper sum for the plaintiff's future economic loss based upon these remarks.
Future treatment expenses
The plaintiff claims the sum of $38,526.91 by way of future treatment expenses, in addition to the agreed sum of $600 for future equipment.
The plaintiff's claim is based upon the need for the plaintiff to regularly consult his general practitioner about every six weeks, ongoing medication costs, annual neurosurgical review and psychological treatment.
The defendants concede that the plaintiff has a need to remain under the care of a general practitioner for the future and that he will incur medication costs. Applying a relatively broad-brush approach, the defendants submit that the sum of $15,000 would be more than adequate.
There is not a great deal of difference between what the defendants admit the plaintiff is entitled to and what the plaintiff claims. The real difference seems to be the amount of money which either party allowed, for each medical treatment, or attendance.
Having regard to the unchallenged evidence of Dr Morsingh, the plaintiff's general practitioner, in this area, I am satisfied that I should adopt the sums of money which he includes in his written report.
In addition the plaintiff claims psychological treatment because he sees Dr Harrysunker every couple of months for therapy for his depression. I am not satisfied that the need for psychological care is as great as the plaintiff claims. Accordingly, I think a figure a little less than that claimed by the plaintiff because of a deduction for the unnecessary extent of psychological treatment, would result in a sum of $30,000, including $600 for equipment being allowed for future treatment expenses. I regard this as a fair and reasonable sum and I will allow it.
Summary
In summary, the awards for damages are as follows:
There will be a verdict and judgment for the plaintiff in a sum which will need to be calculated to take account of:
(a) the outstanding sums for past and future economic loss;
(b) the application of a deduction of 35 per cent for contributory negligence; and
(c) any necessary adjustment to account for the apportionment (notionally) of the fault of Elysium of 15 per cent.
The parties did not make any submissions as to costs, and will have an opportunity so to do. I should indicate that my preliminary view which is, subject to receipt of submissions, that as the plaintiff has succeeded, the defendants should pay the plaintiff's costs.
Orders
I make the following orders:
(1) Judgment for the plaintiff.
(2) On or before 4pm 6 December 2011, the parties are to file electronically with my Associate and serve:
(a) proposed short minutes of order, including any order for costs;
(b) any evidence necessary to support the proposed orders;
(c) an outline of submissions which they wish to make in support of their proposed short minutes of order.
(3) Adjourn the proceedings until 9.30am Friday 9 December 2011 for argument and final orders.
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Decision last updated: 25 November 2011
Non-economic loss
$200,000
Past out of pocket expenses
$75,500
Past domestic and attendant care
$35,000
Past economic loss
To be calculated by the parties
Future medical treatment expenses
$30,000
Future attendant and domestic care
$135,000
Future economic loss
To be calculated by the parties
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