Thurgar v K&J Gollschewski

[2002] QDC 9

DISTRICT COURT OF QUEENSLAND

CITATION:	Thurgar v K&J Gollschewski & Anor [2002] QDC 009
PARTIES:	LORNE ALEXANDER THURGAR Plaintiff -v- KEVIN GOLLSCHEWSKI AND JANINE GOLLSCHEWSKI First Defendant and AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED (ACN 004 791 744) Second Defendant
FILE NO/S:	D2960 of 1999
DIVISION:	Civil
DELIVERED ON:	15 February 2002
DELIVERED AT:	Brisbane
HEARING DATE:	24 and 25 January 2002
JUDGE:	Judge Samios
ORDER:	Judgment for the Plaintiff against the Second Defendant for the sum of $185,152.35.
CATCHWORDS:	PERSONAL INJURIES – MOTOR VEHICLE ACCIDENT – liability and quantum – motorcycle overtaking slow moving motor vehicle – no indication by motor vehicle of intention to turn right in path of motorcycle – arm injuries
COUNSEL:	Mr Atkinson for the plaintiff Mr Corkery for the defendants
SOLICITORS:	Maurice Blackburn Cashman for the plaintiffs Deacons Lawyers for the defendants.

1. The plaintiff was born on 11 April 1966.  He is now 35 years of age.

1. At about 9 a.m. on 4 October 1998 the plaintiff was the rider of a motor cycle that came into collision with a Commodore motor vehicle to which there was attached a trailer (the Commodore) on the Wivenhoe-Somerset Dam Road (the road), Dundas in the State of Queensland.  The plaintiff was then 32 years of age.

1. As a consequence of the collision the plaintiff suffered personal injuries, loss and damage for which he claims damages against the defendants.

1. Liability and quantum are in dispute. 

1. The collision occurred on a Sunday morning. 

1. There is no dispute that before the collision the Commodore and the motor cycle were travelling in a northerly direction on the road.

1. The plaintiff’s evidence was that he was involved in a social outing with a number of other motor cyclists.  The motor cyclists in the group were spread over about 10 to 15 kilometres.  As the plaintiff rode his motor cycle along the road he saw the Commodore in front of him.  The plaintiff caught up with the Commodore which was then travelling at 60 kph.  The plaintiff slowed down to match the speed of the Commodore.  Both the Commodore and motor cycle came to a straight section where there was a bridge.  The speed limit was 100 kph. The Commodore was towing a trailer which contained bales of hay which were not covered and were distributing debris across the road.  Because particles from the bales of hay were being blown off the trailer and as the Commodore was travelling well below the speed limit, the plaintiff formed the view that the reason for the Commodore’s speed was because the driver intended to preserve the hay.  The plaintiff maintained his position behind the rear of the Commodore.  The plaintiff travelled in the right hand side of the lane almost on the centre line intending the driver of the Commodore to be able to see the plaintiff.  The plaintiff continued to cross the bridge with the Commodore.  On the bridge there was a solid white line which prevented the plaintiff from overtaking.  On the northern side of the bridge the road remains straight and is marked with a single dotted line in the centre of the road.  The plaintiff checked to see if any of the other motor cycles in the group were behind him and he also checked the Commodore to see whether the driver was indicating or braking.  As there was no indication or braking after the plaintiff crossed the bridge he put the indicator on his motorcycle and commenced to overtake the Commodore. 

1. The plaintiff accelerated to go around the Commodore.  As he drew level with the driver’s door he noticed the Commodore coming across the road towards him.  At the same time he could see the driver flick with his little finger the indicator on as the Commodore turned right into what then appeared to the plaintiff to be an access road.  The plaintiff took all evasive action that his training had told him to do, but he was not provided with enough time to avoid the collision.  The plaintiff moved the motor cycle further to the right in an attempt to try and get around the Commodore.  The plaintiff was also braking fully as much as he could.  However, the Commodore continued to turn towards the plaintiff and to a point where it struck him in front of his knee.  The collision pushed the plaintiff sideways.  For a moment the plaintiff thought he was going to be able to control his motor cycle.  However, as his motor cycle was scraped back to the corner of the vehicle his forward momentum flicked the rear of the plaintiff’s motor cycle out from him and sent the plaintiff through the air.

1. There is no dispute in these proceedings that at about 60 to 80 metres from the end of the bridge on the left hand side in the direction of travel of the Commodore and the motor cycle, Stanley Pocket Road intersects with the road to form a T intersection.  Although there is no direct evidence about Stanley Pocket Road, the photographs in evidence lead me to conclude it was a minor road compared to the Wivenhoe-Somerset Dam Road.

1. There is also no dispute there was no official traffic sign on the northern side of the bridge indicating the presence of this intersection. 

1. It was the plaintiff’s evidence that the intersection could not be observed until he was very close to it.  The plaintiff had not previously travelled upon the road.

1. The evidence shows at the intersection there are two signs on either side of the intersection indicating the name Stanley Pocket Road and another sign on the eastern side of the intersection indicating the direction of a church. 

1. The plaintiff said these signs are very small and hard to see until a motorist is very close to the intersection.  Further, there was debris coming from the hay bales in the back of the trailer that made it difficult for him to see anything over the Commodore or to his left.  The sign on his right had the backdrop of the hillside where Stanley Pocket Road was cut into the hill. 

1. The plaintiff said that if had seen an indicator activated on the Commodore at an earlier point in time he would never have overtaken the Commodore.

1. The plaintiff said following the collision he struck a guidepost.  His bodyweight ripped the post out of the ground.  He heard his arm snap.  He also felt his knee hit the post and then he bounced for a number of metres and came to rest on the side of the road on the gravel.  His head also hit the road a number of times.  He was wearing a helmet and full leather clothing.  The driver of the Commodore came up to the plaintiff and expressed his concern for the plaintiff.  The driver of the Commodore gave the plaintiff first aid and placed his arm in a sling.   He also told the plaintiff  “I never saw you coming”. 

1. The plaintiff said that after the collision the Commodore was stationary on the road in the course of its turn.  It was still covering the right lane as one faced north.  The Commodore and trailer were still basically blocking that lane. 

1. There is no dispute the road between the bridge and where the collision occurred was a two way carriageway, each lane being about four metres wide.  Further, the road surface was bitumen.  It was a fine clear day.  Further, not only is the approach to the intersection straight for between about 400 to 500 metres, the road is straight for about another 200 metres past the intersection.  The speed limit was 100 kph.

1. During cross examination of the plaintiff he was asked if it was possible the indicator on the Commodore was on well before the intersection, perhaps as far as 50 metres back.  The plaintiff rejected that possibility.  The plaintiff accepted during cross examination the existence of the intersection.  However, he said when he drew alongside the Commodore, which was when he was about 15 metres from the intersection, that was when the intersection came into view.  The plaintiff accepted that the collision occurred in the intersection.  However, the plaintiff said it was the indicator on the front right hand side of the Commodore that struck the left hand front part of his motor cycle just behind the front wheel.  The plaintiff said that he was almost nearly past the Commodore when the collision occurred.  He accepted that while the driver of the Commodore would not attempt to turn right at 60 kph, he would not accept that the Commodore was travelling much slower than 60 kph when he commenced to overtake the Commodore.  He accepted that when the Commodore commenced to turn and come across the midpoint of the road it would have been doing less than 60 kph.

1. Allan Gregory McNiece also gave evidence.  The plaintiff purchased his motor cycle from a business conducted by Mr McNiece at Moorooka.  The plaintiff is a member of the Australian Federal Police.  Mr McNiece is a former member of the Australian Federal Police and are good friends. 

1. Mr McNiece said he organized the ride for the participants on this Sunday.  He was a considerable distance away from where the collision occurred.  He returned to the accident scene.  When he arrived the Commodore and trailer were stationary in the intersection in a position he described as “across the wrong side of the road across the wrong side of the road”.  He drew a diagram to represent the position of the Commodore when he saw it when he arrived at the scene.  His evidence and the diagram indicates that according to him the Commodore was stationary across the right hand side of the road facing the left hand side of Stanley Pocket Road as one would proceed along Stanley Pocket Road towards its intersection with the road.  If that evidence were accepted then the inference is that the path of travel of the Commodore as it turned to the right before the collision was to the south of the midpoint of the intersection rather than to the north of the midpoint of the intersection.  He also said in evidence that the intersection was very hard to see when one was travelling in the direction of travel of the Commodore  and the motorcycle before the collision.  Mr McNiece was a police motorcyclist for three years.

1. The driver of the Commodore, Mr Gollschewski, gave evidence.  He had a passenger in the Commodore at the time of the collision, one Trevor Ruthenberg.  He said he and Mr Ruthenberg were towing some hay on a trailer that day for use by their church which runs a scout program up at Somerset Dam.  He is 59 years of age and a TPI pensioner for post traumatic stress.  He has considerable experience driving trailers having spent six years in the army during which trailers were towed by him all the time and he has since then owned a trailer himself and done quite a bit of towing.  He said the dimensions of the trailer were six foot by four foot.  

1. In evidence in chief Mr Gollschewski said he could not recall the speed limit in the area.  He was doing about 80 kph.  They were not in a hurry and it was a beautiful day.  He recalled the accident happening.  He thought the distance between the closest part of the bridge and the intersection was something about 100 metres or maybe more.  As he approached the intersection he slowed down greatly.  He said Stanley Pocket Road always had gravel on it and it was always a little bit slippery if one were to go around too fast so he always made sure he slowed down because he went up there quite often.  He said he did indicate his intention to turn by putting on his indicator.  He had previously checked his lights on the trailer to make sure the indicators and brake lights were working. When asked when approximately prior to the accident did he put the indicator lights on he said “as I approached the road to turn, I am not sure”.  He said he was able to recall the indicator lights being on because when the collision occurred he pulled over to the side of the road and the first thing he did was to check whether he had his indicators on and they were on.  He said it was his practice to put them on between 50 and 100 metres before a turn.  However, he said he could not recollect putting them on on this occasion.  He also could not recall how close he was to the intersection before he turned the front of his vehicle into Stanley Pocket Road.  Regarding a recollection of seeing the motor cycle before the collision he said “I didn’t know he was there at all”.  The first time he saw the motor cyclist was when he hit the Commodore.  He guessed he was about half way across the right hand side of the road when the Commodore hit the motor cyclist.  The collision occurred while he was still turning the corner.  He said he pulled off the road and parked his vehicle in Stanley Pocket Road.  He said no part of his Commodore or trailer were on the road.  He spoke to the motor cyclist and asked him if he was alright to which the motor cyclist replied that he thought he had broken his arm.  He said to the motor cyclist “I didn’t see you coming”.  The motor cyclist said “I saw your indicator but I didn’t have time to turn.  I had to go past you”. 

1. Mr Gollschewski said that he commenced to reduce his speed when he came off the bridge.  He did that by taking his foot off the accelerator and applying it to the brakes softly.  His brake lights were operating at the time.  He could not recall how many occasions he applied the brake light.  Although he could not remember exactly he thought he was travelling at between 10 and 20 kph as he commenced to turn.  He said he could see past the load in his trailer to the rear by using his rear vision mirror.

1. During cross examination Mr Gollschewski accepted that it was possible what he did when he came off the bridge was that he slowed down not by applying his brake pedal but he allowed the vehicle to slow down naturally.  He said it was most likely he allowed the Commodore to slow down gradually so that at least at that point it would have been hard to discern a change in speed for someone behind him. 

1. A statement made by Mr Ruthenberg was admitted into evidence pursuant to s. 92 of the Evidence Act.  He states that prior to the collision Mr Gollschewski was in the process of turning right into Stanley Pocket Road.  As Mr Gollschewski was turning, the next thing he remembers is the plaintiff hitting the front right hand side of Mr Gollschewski’s car and then the plaintiff flew off his bike.  They then pulled up and got out of the car to see if the plaintiff was okay.  He could not comment as to whether the indicator on Mr Gollschewski’s vehicle was activated at the time of the collision and therefore he could not comment as to when the indicator was activated.  He states that Mr Gollschewski had slowed to 10 to 15 kph in order to make the right hand turn and that Mr Gollschewski’s vehicle was on the centre line when he was in the process of making the right hand turn.  He states that Mr Gollschewski’s trailer lights were working when they left Ipswich as these where checked.  He did not see the plaintiff until prior to the collision.  He does not remember Mr Gollschewski saying to the plaintiff he did not see him coming.  He further states that if a couple of more seconds had passed the plaintiff would have been past Mr Gollschewski’s car.

1. In many respects the plaintiff’s evidence on the issue of liability is consistent with the evidence of Mr Gollschewski and Mr Ruthenberg.  Although Mr Gollschewski referred to his practice of putting on his indicator between 50 and 100 metres before turning,  he had no recollection of putting the indicator on on this occasion.  Mr Ruthenberg could not comment as to when the indicator was activated.  Further, the plaintiff’s evidence that he did not see any indication the Commodore was braking is consistent with Mr Gollschewski’s evidence that it was possible what he did when he came off the bridge was to slow down not by applying the brake but allowing the vehicle to slow down naturally and that it was most likely that it would have been hard to discern a change in speed for someone behind him. 

1. Mr Ruthenberg’s evidence that Mr Gollschewski had slowed to 10 to 15 kph in order to make the right hand turn supports Mr Gollschewski’s evidence, although he could not remember exactly, he thought he was doing between 10 to 20 kph when he commenced to turn.  The plaintiff agreed Mr Gollschewski would have been doing less than 60 kph before Mr Gollschewski commenced to turn.  However, the plaintiff said when the plaintiff commenced to overtake the Commodore it was not doing much less than 60kph.

1. I consider as the plaintiff was accelerating to overtake the length of the trailer and the Commodore and Mr Gollschewski was slowing down intending to turn right, the evidence of the speeds of the respective vehicles does not cause me to conclude one witness is more reliable than the other.

1. Although the plaintiff must have been in considerable pain following the collision I do not accept that in any way affected his capacity to recall events before and after the collision.  That is because many of his recollections are consistent with the evidence of Mr Gollschewski including part of the conversation following the collision. 

1. The plaintiff’s recollection of the position of the Commodore and trailer following the collision was supported by the evidence of Mr McNiece. 

1. However, there were some aspects of Mr Gollschewski’s evidence that showed he was unsure about what occurred and in some respects he did not have a recollection about some matters leading up to the collision.  For example he could not recall the speed limit in the area and he was not sure what the speed limit was at or near where the accident happened.  He said he was doing 80 kilometres per hour whereas when he was cross examined he said he could not remember what his speed was as he travelled along the road.  When he was asked approximately when prior to the accident did he put the indicator lights on he said – “As I approached the road to turn, I’m not sure”.  He could not recall putting his indicator lights on on this occasion.  He could not recall how close he was to the intersection when he turned his vehicle into Stanley Pocket Road.  When the plaintiff was cross examined it was put to the plaintiff that he said to Mr Gollschewski after the collision – “I saw your indicator, but I was going too fast to stop” – which was denied by the plaintiff.  When Mr Gollschewski gave evidence he said the conversation was – “I saw your indicator but I didn’t have time to turn.  I had to go past you”.  Mr Gollschewski was unable to estimate the width of one lane of the road.

1. I formed a favourable view of the plaintiff.  He presented as a competent and intelligent person with considerable internal fortitude.  He answered questions directly without unnecessary qualifications.  He made proper concessions.  Despite his injuries suffered in this collision and the obvious pain he suffered he made relevant observations and recalled conversations for which there is independent support in the evidence of Mr McNiece and Mr Gollschewski.  Although it may be trite to say that is what one might expect by a career Federal Police Officer with considerable training, I could not but be impressed by the plaintiff as an individual.  On the other hand although Mr Gollschewski was obviously truthful, as I consider the plaintiff was too, I formed the view Mr Gollschewski was not a reliable witness.  I was favourably impressed also by Mr McNiece.  He too was matter of fact in giving his evidence and I was confident he was a reliable and truthful witness.  Mr Ruthenberg did not give evidence before me.  In any event his evidence I do not consider was inconsistent with the evidence of the plaintiff.

1. Suffice is to say I accept the plaintiff’s evidence without any reservations. 

1. I find Mr Gollschewski did not look to his rear because had he done so he would have seen the plaintiff travelling behind the Commodore and commence to overtake the trailer and Commodore.  The plaintiff was for a considerable distance, at least when both vehicles commenced to cross the bridge, behind the Commodore and in a position to be seen by Mr Gollschewski.  I find Mr Gollschewski put on his indicator simultaneously with his turn of the Commodore to the right.  I find when Mr Gollschewski put on his indicator the plaintiff was level with the driver’s door of the Commodore.  I find Mr Gollschewski did not look in his rear vision mirrors before commencing to turn right.  I find Mr Gollschewski did not give any warning of his intention to turn right until the plaintiff was level with the driver’s door of the Commodore.  I find Mr Gollschewski drove sharply to his right such that the Commodore would have entered the intersection in the southern end of the intersection had the collision not happened.  Therefore, I find Mr Gollschewski failed to keep any or any proper look out.  Further, he failed to indicate his intention to turn right and turned the Commodore across the path of the motor cycle when it was not safe to do so.  I find Mr Gollschewski guilty of negligence.

1. I find the plaintiff acted carefully and reasonably when overtaking the Commodore.  He tried to assess why the Commodore was travelling slow.  I find his view that the Commodore may have been travelling slowly to prevent the load of hay was a reasonable view to form in the circumstances.  The plaintiff positioned his motorcycle so that the driver of the Commodore could see the plaintiff.  The plaintiff looked behind him in case when he went to overtake another motor cycle was coming through.  The plaintiff checked to see whether the Commodore was indicating or braking.  The plaintiff put on his indicator and commenced to overtake.  I find the presence of the intersection was not visible to the plaintiff except when the plaintiff was about 15 metres from the intersection when he was then overtaking the Commodore.  I find there was nothing that acted as a sufficient warning to him that the Commodore may turn to the right and into his path.  I accept the Commodore slowed down as it approached the intersection.  However, I find Mr Gollschewski allowed the Commodore to slow down without applying the brakes except when he was very close to the intersection when he applied the brakes.  However, notwithstanding Mr Gollschewski applied the brakes at that point in time, that did not act as a sufficient warning to the plaintiff, who was then overtaking the Commodore, that the Commodore was about to turn to the right to enter the southern part of the intersection.

1. Although the plaintiff overtook within 30 metres of the intersection, as the plaintiff could not see the intersection until he was a short distance from the intersection I do not accept that was a breach of Regulation 25(b) of the Traffic Regulations 1962.  If I was wrong about that I do not accept in the circumstances a breach of the regulation caused or contributed to the collision.  Further, I do not accept that the plaintiff breached Regulation 23(3) of the Traffic Regulations 1962 in that as he did have sufficient warning of the Mr Gollschewski’s intention to turn right his attempt to overtake the Commodore to the right was reasonable in the circumstances. 

1. In the circumstances I find the plaintiff took all reasonable care for his own safety.

1. I find Mr Gollschewski’s negligence was the sole cause of the collision.  I find the plaintiff was not guilty of any negligence that caused or contributed to the collision. 

1. Following the collision the plaintiff was winded and could not breathe.  He demonstrated in the witness box that he was trying to hold his arm.  Later in his evidence he said that his jacket was actually holding his arm in place.  He was concerned that if his jacket had been cut off his arm was just going to flop around.  He said his arm was just totally snapped off.  He was suffering pain.  He was taken to the Esk Hospital.  As that hospital could not handle his injury he then was taken to Ipswich.  He waited until 9 p.m. for surgery.  He suffered pain throughout that period.  He also injured his left knee and he had a headache because his head had hit the ground quite a lot before he came to a final rest. 

1. The report from the Ipswich Hospital confirms that the plaintiff sustained a closed fracture of the left radius and ulna.  There was an obvious deformity of the left forearm when the plaintiff was observed at the hospital.  He underwent an open reduction and internal fixation of both the radius and ulna that day.  Both bones were fixed with dynamic compression plates.  Post operatively the plaintiff complained of some pain in the left knee.  It was noted he had a sprain of the medial collateral ligament. 

1. After his release from hospital the plaintiff remained at home for about 17 days.  His arm was in a cast.  Part of his wound developed an infection and his skin was pulling apart and widening.  He had to visit his doctor regularly for dressings and he had difficulty showering as well.  He continued to suffer pain.  He had difficulty lifting weights.  He also underwent physiotherapy on about seven or eight occasions.  The physiotherapists were trying to force his hand to rotate into a flat position with his elbow at the side.  He found these sessions excruciatingly painful.  He required 31 stitches for his wounds.  After the initial operation he has had two further operations.  The second operation took place in about June or July 1999 when one of the plates was removed.  Before that operation was performed it was observed that the bone had not healed and therefore bone was taken out of the plaintiff’s wrist and placed in the gap.  Therefore both his scars were opened up again for that second operation.  The plaintiff has also undergone a further operation in October of 2001 to remove the final plate from the lower bone in his forearm.  All three operations have been performed under general anaesthetic.  The plaintiff required short periods of time off work and then he returned to work following the second and third operations.

1. The plaintiff is naturally right handed.  The position for the plaintiff at the present time is that although his ability to lift weights with his left arm has increased he still has a weak grip in the left hand compared to his right hand.  He can bear a little bit more weight held out in front of him in the left hand but nowhere near what he can bear in his right hand.  His left arm disability affects him in many ways.  One of those ways is when eating dinner he has to sit at the end of a table as he cannot rotate his elbows.  Further when touch typing in his occupation he has to hold his elbow up again to type and move his body around so that he can actually type on the keyboard.  Playing with his children he favours his right side. 

1. Before the collision the plaintiff was extremely active in sporting pursuits.  He had represented Queensland in American football.  He played seven seasons in five years in three different States.  He was a member of premiership winning teams and he can no longer play that game.  He stopped playing tennis although he has now returned to tennis again.  He was also into body building for a number of years but he has not engaged in that since the collision.  The reason for that is he cannot bear weights in his arm.

1. The plaintiff showed me his scars which are quite obvious and extensive on his left arm.  He has also lost much of the enjoyment of his hobby of woodworking.

1. Dr Gillett an orthopaedic surgeon who examined the plaintiff on 22 March 2000 concluded that in relation to the plaintiff’s left arm he has been left with an impairment of upper limb function of 15% related to the residuals of the loss of motion, sensory abnormality and lack of strength.  Further in his opinion the plaintiff has been left with a 2% impairment of his lower limb function due to residuals of the superficial nerve damage. 

1. Dr Morgan another orthopaedic surgeon who saw the plaintiff on 20 July 2000 quantified a loss of some 20%-25% of the normal functional capacity of the left upper limb.  In addition he was of the opinion the plaintiff had a further loss of some 1% of normal left lower limb function referable to the knee joint.  Dr Morgan thought it was theoretically possible that the forearm rotation may improve with further efforts at rehabilitation.  However, he thought it was unlikely in general terms the plaintiff’s permanent partial impairment would fall below a level of 20%.

1. After the plaintiff finished Grade 10 at Hervey Bay he joined the Australian Navy on 14 April 1982.  He was trained as a meteorological observer and a navigator’s yeoman.  He was in the Navy about three and a half years.  When he was about 21, he joined the Australian Federal Police.  He has served in various capacities with the Australian Federal Police since then.  He has made a number of voluntary moves in the course of his career.  From his course in Canberra he went to Melbourne.  Then he transferred to Canberra.  He went to Cyprus.  He has a United Nations medal, a Police Overseas Service Medal and now after 20 years of service he has a Long Service medal.  After serving in Cyprus he returned to Canberra.  He then applied for a position in Brisbane.  He has asked for these transfers because he has felt it is good experience.  He also felt that diversity would help his career.  In 1997 he tried out to gain acceptance into the VIP program.  This work has been described in these proceedings as “close protection” for VIP’s.  To be accepted into this course requires considerable strength and condition and acceptance after a psychological interview.  The course was to commence at the end of 1997.  The plaintiff wanted to be in close protection for a number of reasons.  He knew his wife would like to return to Canberra where all her family reside.  The plaintiff also liked the idea of travelling and liked the role of a VIP officer.  He saw it as quite a challenge.  There is also a 90% loading on the base salary for those involved in VIP protection.  The plaintiff saw the status of such an office as quite high.  Although the plaintiff had been accepted into the course, as his wife had just had their second child, he deferred going on the course with a view to getting on the next one.  He would have not have had to have gone through the qualifying process again as he had already been deemed sufficiently qualified to get on the next course that was available.  After that he was then asked to come and work in surveillance.  He was resident in Brisbane and working in surveillance at the time of the collision.  In surveillance that has a 33% loading on the base salary compared to a 90% loading in VIP protection.  At the time of the collision it was still his intention to join the VIP protection unit.  He was due to start the surveillance course the day after the collision and his intention was only to do the surveillance work until he could get on the VIP course and gain a position in Canberra.  That was the plaintiff’s goal at the time of the collision.

1. The plaintiff’s wife also gave evidence.  Both the plaintiff and his wife impressed me as people who were totally committed to each other and supportive of each other.  In the case of the plaintiff’s wife I have no hesitation accepting her evidence.  I accept the plaintiff’s wife would make whatever move was necessary to support any move her husband wished to make in his career.

1. Steven Scott Hall also gave evidence.  He has served for a period of 20 years working in various positions with the Australian Federal Police and on leaving the organization in 1999 he was head of the protection training team.  He deemed the plaintiff to be competent and suitable to undertake the protection course.  In his opinion if the plaintiff had successfully completed the course the plaintiff would have obtained a full time position within the protection unit.

1. I am satisfied on the evidence before me that there was a high degree of probability if the collision had not occurred that the plaintiff would have qualified for and worked in the VIP Protection Unit.  The plaintiff said that he would have worked in close protection for as along as he could and that could potentially be 15 years. 

1. The plaintiff has a very impressive history in terms of his career and fitness.  I could see he was very proud, although modest, when he gave evidence about his career and fitness and I consider he has every reason to be proud.  His evidence is that for all transfers he has sought he has been accepted.  He was recommended by his superiors to perform the preliminary course for the VIP Protection Course.  It requires considerable physical strength and ability.  From his point of view the status is quite high.  His wife has family in Canberra.  A transfer from Brisbane to Canberra is easy to obtain compared to a transfer from Canberra to Brisbane.   I was impressed by his description how his left arm injury now would prevent him being accepted into that role.  He described with his body movements in the witness box how one might have to carry a VIP in your left arm and have your right arm free to be able to use your weapon.  Of course it may be trite to say that is what you might expect from a trained police officer.  However the plaintiff’s description was cogent and compelling.  I was left with the impression regarding the plaintiff as a person that if he said he was going to be in the VIP protection unit that is what would happen.

1. I am satisfied that the plaintiff’s injuries and the effect  upon him of his injuries has genuinely robbed him of his fitness and his intended career path.  I consider these impacts are significant impacts in the case of the plaintiff.  When he suffered his injuries he was in his early thirties and is now in his mid thirties.  In terms of his career, which I consider is significant to him, he was about to emerge into a period when a move to VIP protection would have been the start of another important phase in his life.  That is no longer available to him because of the permanent effects of his injuries. 

1. I assess the plaintiff’s damages for pain and suffering and loss of amenities of life in the sum of $40,000. 

1. I allow the plaintiff interest on past pain and suffering and loss of amenities of life at 2% per annum on $15,000 for 3.36 years which is the sum of $1008.00.

1. I also allow the plaintiff his past out of pocket expenses in the sum of $5,066.30. 

1. I allow the plaintiff interest on $561.30 of his past out of pocket expenses at the rate of 5% per annum for 3.36 years which is the sum of $94.29.

1. There was no challenge to the plaintiff’s evidence that he received services because of his injuries.  I allow the plaintiff for Griffiths v Kerkemeyer  damages $1,141.20.

1. I also allow the plaintiff interest on Griffiths v Kerkemeyer damages at 5% per annum for 3.36 years which is the sum of $191.72.

1. With respect to past economic loss the plaintiff lost $880.43 for wages when he had his operations.  I allow the plaintiff that sum of $880.43 for past economic loss.  I also allow the plaintiff interest on that sum at 5% per annum for 3.36 years which is a sum of $147.91.

1. It was agreed that the difference between the plaintiff’s income while engaged in surveillance work which includes the 33% loading on base salary compared to his income if he had worked in the VIP Protection Unit is a sum of $284 per week net after tax. 

1. In the assessment of past economic loss as with future economic loss there are a number of factors that are relevant.

1. The plaintiff had deferred completing the VIP Protection Unit course because of his concern for his wife who had recently had their second child.  Even so, the plaintiff had completed the preliminary course to be accepted for the next stage.  I accept the evidence of Mr Hall.  I find the plaintiff had excellent prospects of completing the course and being accepted for a full time position in Canberra.  His wife has supported his career.  I find there was a high degree of probability that by at least mid 1999 the plaintiff would have completed the course and been accepted for a full time position in Canberra.  I consider there was at least an 80% degree of probability had the collision not occurred the plaintiff would have been working in the VIP protection unit by about the middle of 1999.

1. On this aspect of past economic loss I consider it is proper to allow the plaintiff  2.5 years loss reduced by 20%. This is a sum of $29,536 which I round off to $29,500 for past economic loss.

1. I allow the plaintiff interest on the sum of $29,500 at the rate of 5% per annum for 2.5 years which is the sum of $3,687.50.

1. With respect to future economic loss a loss of $284 per week over 12.5 years on the 5% interest tables is a sum of $137,740.  This should be discounted for general contingencies by 15%.  That is a sum of $117,079.00.  Again I find there is a high degree of probability the plaintiff would be in a full time position with the VIP Protection Unit during this period which I assess to be a 80% degree of probability.  Therefore, that results in a sum of $93,663.20 which I would round down to $93,000.  I allow the plaintiff the sum of $93,000 for future economic loss.

1. I also allow the plaintiff for past loss superannuation 7% of $29,500 which is the sum of $2065.

1. For future lost superannuation I allow the plaintiff 9% of $93,000 which is the sum of $8,370.

1. Therefore these damages that I have assessed including interest total the sum of $185,152.35.

1. Therefore I give judgment for the plaintiff against the second defendant for the sum of $185,152.35.

1. I will hear the parties on the question of costs.