Tran v Nominal Defendant

[2009] NSWDC 281

CITATION:	Tran v Nominal Defendant [2009] NSWDC 281
HEARING DATE(S):	12, 13 and 14 August 2009
JUDGMENT DATE:	2 September 2009
JURISDICTION:	District Court Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. Judgment for the defendant 2. The plaintiff is to pay the defendant’s costs, on the ordinary basis 3. Leave to apply in relation to costs, within 7 days
CATCHWORDS:	MOTOR ACCIDENT - claim in negligence against the Nominal Defendant - whether accident caused by negligence of an unidentified driver - factual dispute involving conflicting versions as to the cause of the accident - DAMAGES - non-economic loss - past and future medical expenses - economic loss - domestic care and assistance - other costs and expenses
LEGISLATION CITED:	Motor Accidents Act 1988 Motor Accidents Compensation Act 1999
PARTIES:	An Phan Tran (Plaintiff) Nominal Defendant (Defendant)
FILE NUMBER(S):	779/08
COUNSEL:	Mr M Gilbert (Plaintiff) Mr W Reynolds (Defendant)
SOLICITORS:	Lachlan McAuley Lawyers (Plaintiff) Lee and Lyons (Defendant)

JUDGMENT

The proceedings and the issues

1. The plaintiff, An Phan Tran, claims damages in respect of injuries received in a motor accident on 5 July 2006.

2. He contends that in the course of riding a motorcycle east along Cabramatta Road he was forced off the road into the kerb by a black sedan that changed lanes suddenly and without warning, causing him to crash. He alleges that the accident was caused by the negligence of the driver of the black sedan, the identity of which has not been established after due search and enquiry.

3. The defendant denies that the plaintiff was forced off the road by an unidentified black sedan and disputes his version of how the accident occurred. Due search and enquiry was conceded.

4. Any damages to be awarded fall to be determined and assessed under Chapter 5 of the Motor Accidents Compensation Act 1999 (NSW) (“the MACA”). The plaintiff claims damages for out-of-pocket expenses, lost income, lost earning capacity, domestic assistance rendered in the past and required in the future, future medical and pharmacological expenses and various other incidental expenses. He also claims general damages for non-economic loss, it being conceded that the requisite threshold for an award of such damages has been satisfied: s 131 of the MACA.

5. The principal issues for determination are, therefore:

· Whether the plaintiff was injured by the negligence of the driver of an unidentified vehicle;
· If so, whether the plaintiff was guilty of contributory negligence; and
· The assessment of damages.

The accident on 5 July 2006

6. The accident occurred at about 10.30 am on the morning of 5 July 2006 on the northern side of Cabramatta Road between the intersections with Vale Street and the Hume Highway, at a point some 120 metres west of the Hume highway. At that point the road, which consisted of four lanes, two travelling in each direction, was straight. The speed limit was 60 kph. It was a fine day.

7. The plaintiff had been riding his motorcycle at about 60 kph in an easterly direction along Cabramatta Road towards the Hume Highway, where he was intending to turn left. His version was that whilst travelling in the kerbside lane he was forced off the road when an unidentified black sedan travelling beside him in the adjacent centre lane to his right suddenly and without warning started to move across into his lane, forcing him off the road. His motorcycle went into the kerb and up onto the nature strip where it struck a signpost, then a power pole. He was thrown into the air and upon falling suffered severe injuries.

8. The plaintiff’s evidence was that after he first turned left into Cabramatta Road at Hill Street he had been riding east in the centre lane, but subsequently crossed into the kerbside lane, at a point before Vale Street. He then travelled in that lane for some 30 to 40 metres when he became aware of a black car in the lane on his right, going a little bit faster. At a point when the rear wheel of that car was beside him, it suddenly merged into his lane and “closed him off”. He was left with nowhere to go and he panicked. He said that the episode happened very quickly, in a matter of seconds, and he had no time to brake. The black car did not come into contact with him or his motorcycle, but “pushed” him, forcing him “into a manoeuvre”, causing him to hit the kerb. In his examination-in-chief he denied turning his motorcycle left, but when pressed in cross-examination, he agreed that he had veered left.

9. The plaintiff called no witnesses to corroborate his account of the accident. There was, therefore, no direct eyewitness evidence to support his version.

10. The defendant’s version of events was starkly different. It alleged that the plaintiff was not forced off the road whilst travelling in the kerbside lane, by an unidentified black car, or at all. Rather, the plaintiff was travelling in the centre lane when he attempted to change lanes too quickly and lost control of his motorcycle, which then crashed.

11. The defendant called two eyewitnesses who were travelling west along Cabramatta Road in their respective vehicles, that is, in the opposite direction. There were discrepancies in their evidence, but both witnesses were clear that they saw the plaintiff lose control of his motorcycle whilst he was riding in the centre lane, which then veered immediately and directly across the kerbside lane into the gutter.

Liability

12. It was submitted that, for a number of reasons, the court should reject the evidence of the two witnesses called by the defendant and accept the plaintiff’s version of the accident. Firstly, the plaintiff gave an honest account of the cause of the accident, which he has consistently maintained. That version is not a subsequent invention or rationalisation, and was first given by him within moments of the accident, whilst lying on the ground injured, and again in hospital, a few days later, to his father, to a social worker, and to the police. Secondly, the two witnesses called by the defendant either did not see the totality of the events surrounding the accident, and missed seeing the black car, or they were mistaken, in particular as to the lane in which the plaintiff was riding his motorcycle when it began to veer, out of control, into the kerb. Thirdly, there was corroboratory evidence as to the presence of an unidentified black car that failed to stop, which was discussed amongst the various persons present at the scene following the accident, as recorded by the investigating policeman and confirmed by the defendant’s witnesses.

13. In support of the contention that the version given by the defendant’s two eyewitnesses should be rejected, the defendant relied principally on discrepancies in their evidence and as between their respective accounts. It was also submitted that the reliability of their memory was diminished in that they were not asked to recall the events and give their account of the accident until many months after it occurred.

14. Mr Reyes was driving a white Ford Corsair. He gave evidence that he had turned from the Hume Highway into the kerbside lane of Cabramatta Road and was travelling west. He then changed into the centre lane, when after a short time he saw the plaintiff riding his motorcycle towards him, on the other side of the road, in the centre lane. There was a silver car travelling beside the motorcycle in the kerbside lane, travelling in the same direction. There was another, black, car travelling 7 to 8 metres ahead of the silver car, in the kerbside lane. Suddenly, the plaintiff’s motorcycle “shot off” to the left across the kerbside lane between the silver car and the black car and slid into the gutter where it hit a pole. It all happened in a split second: see Exhibit 1. He believes the plaintiff was trying to get in front of the silver car and lost control of his motorcycle.

15. When cross-examined, it emerged that there were some inconsistencies between the oral evidence of Mr Reyes and the account he gave the insurance investigator on 30 April 2007. Counsel pointed to differences in distances, his description of the lane the plaintiff was in as the “middle” lane, the time of day when the accident occurred, and whether, after the accident, he pulled into a driveway on the north side of Cabramatta Road or the south side. Mr Reyes also admitted to memory loss due to marijuana abuse.

16. The plaintiff sought to rely on evidence given by Mr Reyes that the plaintiff told him, at the scene after the accident, that a car had cut in front of him. However, Mr Reyes was firm that the black car had always been in the kerbside lane and that there was no other car involved that caused the accident.

17. Mr Swan was driving a truck. He gave evidence that he had turned from the Hume Highway and was travelling west along Cabramatta Road, in the kerbside lane. After the point where three lanes merge into two, he saw the plaintiff riding his motorcycle towards him, on the other side of the road, in the centre lane. There was another car travelling in the same direction in front of the motorcycle, also in the centre lane. Suddenly, the plaintiff’s motorcycle “dove out” across the kerbside lane and hit the gutter. The motorcycle went 15 metres in the air and hit a lady walking on the footpath. The car in front kept going, but remained in the centre lane. He was unable to recall any vehicles in the kerbside lane travelling east. Mr Swan described the plaintiff’s movement as sudden, a matter of seconds, and he believes he became impatient and tried to “zip around” into the kerbside lane “real fast”, and lost control of his motorcycle.

18. When cross-examined, it emerged that there were some inconsistencies between the oral evidence of Mr Swan and the account he gave the insurance investigator on 14 February 2007. Counsel pointed in particular to a diagram he drew for the insurance investigator on which Mr Swan placed his vehicle in the centre lane, not the kerbside lane. Mr Swan also conceded that he only saw the accident out of the corner of his eye, with his peripheral vision. Further, Mr Swan thought the plaintiff was a P-plater, or an L-plater, and was therefore an inexperienced rider.

19. The plaintiff also sought to rely on evidence given by Mr Swan that afterwards, at the scene after the accident, he also heard talk of a car coming across in front of the plaintiff. However, Mr Swan was firm that he had a good view of the accident, and he did not see another vehicle cut the plaintiff off.

20. Counsel for the plaintiff submitted that he was an unsophisticated but honest witness whose evidence had the ring of truth. He complained immediately, at the scene of his accident, about being cut off by a black car, and has ever since given consistent versions of that account. He is a conscientious young man, not the sort of person to invent a black car. On the other hand, each of the two witnesses called by the defendant gave a version that was at variance with the other. Further, each version was unreliable in itself having regard to the inconsistencies in them. Accordingly, it was argued, the plaintiff’s version of the accident should be preferred.

21. However, there was no direct evidence that a black car cut the plaintiff off, other than his own account, which similarly suffered from inconsistencies. He, for example, was adamant that he changed lanes before Vale Street, and that he had been in the kerbside lane for some distance before he was cut off, whereas both Mr Reyes and Mr Swan placed him in centre lane well past Vale Street. In my view, the variations in the accounts of Mr Reyes and Mr Swan, and the inconsistencies involved in their versions of the accident, were peripheral. Both men had a clear, uninterrupted view of plaintiff on his motorcycle in the seconds leading up to the accident, and the accident itself. Neither said there was a car in the centre lane beside the plaintiff in the kerbside lane. Both accounts were consistent on the key aspects of the accident, firmly placing the plaintiff’s motorcycle in the centre lane immediately before he lost control of his motorcycle and veered suddenly left, directly across the kerbside lane, into the gutter. That version is consistent with the diagram in the notebook of the investigating police officer, which the plaintiff adopted as accurate. Both witnesses were firm that there was no other car involved causing the plaintiff to veer or swerve, and that he was not cut off. Their evidence in the witness box on these key matters was consistent with the accounts given by them to the insurance investigator over two years earlier. These were independent witnesses with no stake in the outcome.

22. For these reasons I prefer the evidence of Mr Reyes and Mr Swan and I accept their version of the accident over that of the plaintiff. I am satisfied that the plaintiff was not cut off by an unidentified vehicle. I find, therefore, that the plaintiff was riding his motorcycle in the centre lane and that whilst attempting, suddenly and quickly, to change lanes into the kerbside lane so as to turn left at the Hume Highway, he lost control of his motorcycle, which veered sharply left out of the centre lane across the kerbside lane into the gutter where it crashed.

23. I am not satisfied that there was any negligence on the part of the driver of an unidentified vehicle that caused or contributed in any way to the plaintiff’s injuries, and there will be a verdict for the defendant.

Contributory negligence

24. It is not necessary to determine the issue of contributory negligence. However, if the accident had occurred in the way the plaintiff said it did, then the defendant’s contention was that the plaintiff should have braked when he first saw the black car crossing over into his lane. In my view, on that version, there was insufficient time for the plaintiff to have taken any meaningful evasive action. On his version, I could not be satisfied that the plaintiff failed to take reasonable care for his own safety.

Assessment of damages

25. Notwithstanding the findings I have made on liability I am required to give my assessment of the damages I would award to the plaintiff in the event of a verdict in his favour. That the plaintiff suffered serious injuries is undoubted. In my view, however, some aspects of the consequences of those injuries were exaggerated.

26. The plaintiff was born on 3 February 1986 and is now 23 years old. At the time of the accident he was 20. An Australian of Vietnamese parents, he went to school at Cabramatta and Fairfield, completing his Higher School Certificate in 2003.

27. Upon leaving school the plaintiff commenced employment in late 2003 as a machine operator with Costa Produce One Pty Limited, where he continued working for the next two years, until 3 February 2006. During this period he worked five days a week, with overtime and weekend work, and obtained a licence to operate forklifts. The records indicate that in the 31 weeks he worked from July 2005 until February 2006, his nett average weekly earnings were $835.00. He left that employment and commenced a diploma course in Business Management at Liverpool TAFE. By the time of his accident he had completed the first semester of his course. In conjunction with his studies, he obtained casual part-time employment as a kitchen hand in a food outlet at Rockdale called Flat Chooks, earning some $350 nett per week.

28. The plaintiff had lived at home with his parents and siblings until early 2002, when he moved out into a house at Mount Pritchard with a friend, Mr Ong. Both men shared the rent and the various domestic duties.

29. Prior to the accident he was a sociable, bubbly, happy young man who was agile and active. He jogged, went to the gym, played basketball, went fishing, cycled, wrestled and danced. He had a girlfriend, Ms Bao Nguyen, with whom he enjoyed an active social and sexual relationship. That relationship continues, but has been adversely affected by reason of the plaintiff’s injuries. He also played the keyboard in a band, performing regularly at various venues.

30. The injuries sustained by the plaintiff in the accident were severe. In particular he suffered a major injury to his left leg, where there was a degloving of the lower part of the leg leaving ugly scarring, a compound fracture of the tibia and fibula. He also suffered open book pelvic fractures and fractures at the L1 and L2 level of his lumbar spine.

31. After the accident he was conveyed to Liverpool Hospital where he remained for over a month, during which time he underwent intensive treatment, including a series of operations involving plating of the pelvic fractures, internal fixation of the left tibia and fibula with an intra-medullary nail and screws, and extensive skin grafting. The nail had to be replaced in April 2007, as the left tibia fracture had not fully united.

32. Following the plaintiff’s discharge from hospital there was an extensive period of recuperation during which he required intensive care and assistance. Not unexpectedly he was immobile for a considerable period but steadily improved, graduating from wheelchair to crutches, to walking unaided by early 2007.

33. His parents took him back home to their place where the family provided constant care and assistance over the next four to five months. In particular, his mother devoted herself to his attention on virtually a 24-hour a day basis. Although, as I have said, the plaintiff has required considerable care, particularly in this early period of immobility, it cannot be said that the full extent of the care provided was reasonably necessary.

34. In February 2007 the plaintiff resumed his studies at TAFE. He persisted in this with some difficulty. In April 2007 he had the further operative procedure to replace the tibial nail, following which another short period of recuperation was required. He then obtained employment and worked 3 days a week at Merck Sharpe & Dohme for several months until June 2007, when he was retrenched. He was then out of work for a couple of months before obtaining another job in August with a printing company, but he was unable to cope with the work involved and left after a few days. He was again unemployed for a period until November 2007. In the meantime he abandoned his TAFE studies due to his financial position.

35. In November 2007 the plaintiff commenced employment with Deals Direct, a warehousing company, and he has remained working 4 days a week for that organisation ever since. He started in the Returns Department performing mostly administrative duties, but he also undertook some work operating a forklift. He later transferred into the Receiving Department, where his duties have predominantly been as a forklift operator. During his employment at Deals Direct his wages were increased every 6 months as he became more experienced and more senior in the organisation. He is well regarded in his place of employment. In the meantime he also resumed studies, enrolling in a Bachelor of Commerce degree course at the University of Western Sydney in February 2008. This involved him attending university on his day off and after work three nights a week, from 6.00 - 9.00pm. In addition to his job at Deals Direct, in December 2008 he obtained a second job at Office Works, working one evening a week.

36. The plaintiff struggled with his university course, failing a number of subjects, and more recently he has dropped back to one night a week. He is still ambitious to finish the course and progress into better, higher-paying work, possibly in a managerial position. But his difficulties at university cannot be attributed entirely to the effects of his accident. As his father confirmed, the plaintiff is a young man who is not particularly bright.

37. At the present time, the plaintiff remains living at home, where his family continues to do virtually everything for him. His mother does not allow him to do anything for himself. Whether this level of care and attention is a result of his disabilities or results from family love and regard for him, driven by cultural considerations relating to the eldest son in the household, was one of the issues in this case. Be that as it may, he intends in the near future to move out of home into a flat or house, to live with his girlfriend, Ms Nguyen. Apart from his studies and his work, he continues to play keyboard with his band on a regular basis. He needs some help, however, with the transportation of his keyboard and speakers, which his family currently provides.

The medical evidence

38. It is not disputed that the plaintiff is left with a number of serious and permanent ongoing disabilities. The nature and extent of his problems are reflected in the more recent expert medical opinion, to some of which I now briefly refer.

39. Dr Richard Walker is an orthopaedic specialist who provided a report dated 29 May 2009 following an examination in April 2009. He found that his condition was now stable, all the fractures in the left leg had united, and he has reached maximum medical improvement. He continues to experience ongoing pain and tenderness in the left leg, particularly in the foot, and has ongoing pain in the pelvis. He considered there will be no requirement for ongoing medical treatment, but removal of the intra-medullary nail may be advised to improve ongoing anterior knee pain. The doctor did not place any restrictions on him, and was happy for him to do activities “as tolerated”. He noted that the plaintiff reported difficulty with long periods of standing and walking and was of the opinion that his employment should reflect that he will need periods of time seated and that he would not be able to stand on his feet all day without difficulty.

40. Dr Peter Haertsch is a plastic surgeon who provided a report dated 23 March 2009 following an examination of the plaintiff. He described the scarring and grafting in detail, the detail of which I will not set out here as it appears in the photographs tendered. In summary, there is major disfigurement, and there is some risk of breakdown to the lower left leg if subjected to trauma. The affected areas require ongoing treatment by way of regular application of moisturising cream. The significant scarring to the left lower leg may be amenable in the future to restoration by way of a two-staged surgical repair using skin expanders.

41. Professor Ian Cameron is a consultant physician who was qualified on behalf of the defendant, and provided reports dated 18 July 2008 and 18 August 2008. He saw the plaintiff on 6 June 2008. In his opinion the plaintiff had permanent restrictions in functioning that make him unfit for employment that involves heavy lifting or significant amounts of walking. He clearly required domestic assistance including personal care for some four months following the accident, but has no further need for domestic assistance.

42. Dr W Donaldson is an orthopaedic surgeon who was qualified on behalf of the defendant, and provided various reports, the most recent being dated 4 November 2008. On examination on 22 October 2008 the doctor found that his leg lengths were equal and his left leg was not malrotated or malangulated. His left foot was not swollen nor hypersensitive or insensate, but the plaintiff does experience intermittent parasthesiae on the dorsum of the foot. He has normal strength and full movements of all toes, but the range of active movement in the ankle is restricted. The left leg, however, is stable and he no longer has an antalgic gait. He is unlikely to develop post-traumatic arthritis in the leg. He would, however, benefit from removal of the tibial nail. As regards the pelvis, the plaintiff will continue to suffer chronic sacroiliac discomfort, which removal of the plate is not likely to reduce. The sacroiliac joints have ankylosed, causing chronic lower back discomfort. The avulsed left lumbar process fractures may also cause discomfort resulting from rotational strains from twisting and lifting.

43. So far as the scarring of the lower left leg is concerned, Dr Donaldson noted these remain hypertrophic, but are not markedly keloid. The leg needs to be protected from prolonged sun exposure.

44. Turning to the plaintiff’s capacity, Dr Donaldson regards his ability to engage in recreational, social and sporting activities as reduced. Similarly his capacity for work involving physical activity is reduced. Specifically, he should avoid heavy lifting and forceful activity where spinal strength and flexibility are needed.

45. Dr Leonard Lee is a consultant medico-legal psychiatrist who was qualified on behalf of the plaintiff, whose report is dated 23 March 2009. In his opinion the plaintiff did suffer from a post-traumatic stress disorder but this has resolved. He is able to work and study although his concentration is mildly diminished by some ongoing anxiety, continuing pain and discomfort, and concern at the appearance of his leg. He has an adjustment disorder, which although permanent, is minor, and no treatment is indicated.

46. Against the background I have outlined above, I turn to consider the specific heads of damages claimed.

Out-of-pocket expenses

47. The plaintiff claims past out-of-pocket expenses totalling $68,620.00 made up principally of hospital costs and orthopaedic fees. The arithmetic was agreed and counsel for the defendant made no submission in opposition to the claim. These costs were undoubtedly necessary and I would allow the out-of-pocket expenses to date as claimed.

48. Turning to the future, the plaintiff claims a total amount of $110,985.00. This is broken up into “finite treatment costs” such as orthopaedic review including removal of the tibial nail, physiotherapy and hydrotherapy for the next 12 months, plastic surgery, and psychological counselling, totalling $51,420.00, and ongoing treatment costs totalling $59,565.00 for review by his general practitioner, pharmaceuticals, and physiotherapy and hydrotherapy for the balance of his life.

49. As regards physiotherapy and hydrotherapy, Dr Donaldson’s view is that the time for those activities has passed, and no further benefit is to be obtained from such treatment. That, in my view, accords with logic. I will allow a small sum by way of a buffer to allow for an occasional need in the event of the back strain the doctor refers to, and the possibility of a limited regime of physiotherapy associated with the removal of the tibial nail, on a deferred basis. I would allow a sum of $10,000.00.

50. The claim for counselling is not supported by the plaintiff’s own psychiatric evidence, and I would disallow it.

51. There is a claim for ongoing review by an orthopaedic surgeon over the next 2 years in a total amount of $1,000.00. I am satisfied that such treatment is likely and reasonable. I would allow the claim.

52. The claims for removal of the tibial nail and the need for future plastic surgery have in my view been established by the evidence as appropriate and reasonably likely. Removal of the tibial nail is likely to occur reasonably soon, and I see no need to discount the estimate of the current cost. I would allow $10,000.00. The claim for revision of the scarring by way of plastic surgery, however, should be discounted on a postponement basis, but only to a limited extent. I would allow $20,000.00.

53. The claim for ongoing review by a general practitioner assumes monthly visits for the rest of the plaintiff’s life. That is excessive. In my assessment, an appropriate allowance for ongoing medical treatment and review by a general practitioner, which includes the renewal of scripts, is 6 times a year. The weekly allowance may be calculated at $6.00 which, applying the appropriate multiplier for 62 years (1017.5) produces an amount which I would round up to $7,000.00.

54. The final item in the claim for future medical expenses is for pharmaceuticals, including analgesics, digesics and creams for the scars. The amount sought is $31.00 a week. The claim for that level of analgesics and digesics, as presently being consumed, is not supported by the medical evidence as to the future, either as to need or as to degree, over the whole of the plaintiff’s lifetime, and in my view the claim should be scaled back to $24.00 a week. Applying the same multiplier, the amount I would allow, rounded up, is $28,000.00.

55. To these sums I would add a general buffer of $4,000.00 against the probability of miscellaneous additional future medical, pharmaceutical and other out-of-pocket expenses having regard to the permanent nature of the plaintiff’s disabilities. I would, therefore, allow a total amount of $80,000.00 for future medical and out-of-pocket expenses.

Economic loss

56. The next head of damages for which the plaintiff claims is economic loss, for the past and for the future. There is no doubt that he has lost earnings by reason of his injuries, and that his future earning capacity is permanently diminished, at least from a physical perspective. The dispute is as to the extent of the loss and diminution.

57. The plaintiff makes a claim for past loss of earnings of $98,407.00 calculated by reference to average weekly earnings for males in New South Wales, less the plaintiff’s actual nett earnings. The defendant disputes this approach. It points out that average weekly earnings contemplate that some people earn less and others earn more, and that prior to the accident the plaintiff’s nett earnings were lower than the average. It was submitted that the appropriate comparison, therefore, is with the plaintiff’s actual earnings at Costa Produce One for the 2004 - 2005 financial year ($651.00), and that even that figure should be discounted, at least as to the future, on the basis that the plaintiff would not have worked overtime and on weekends for the totality of his working life. In my view there are problems with both these approaches. I agree that the plaintiff’s earnings at Costa Produce One should be used for the comparison, at least as to the past loss of earnings, but I see no reason to use the 2004 - 2005 data. I will, therefore, use the 2005 - 2006 data as the starting point, which assumes nett average weekly earnings at the date of the accident of $835.00.

58. It is also reasonable to assume that there would have been regular increases in the plaintiff’s earnings, consistent with the practice at Costa Produce One of reviewing his wages every 6 months. Absent comparable wages data for the period after the accident, I will assume increases at 6 monthly intervals consistent with movements in the nett average weekly earnings data for males in New South Wales.

59. The calculation of past economic loss is further complicated by reason of the plaintiff having chosen to relinquish regular employment just prior to the accident and concentrate on his studies. That of course was only to be a temporary situation. Nevertheless, it is a factor to be taken into account. The interference with his studies is a matter to be given additional weight as part of the non-economic loss.

60. But for his accident the plaintiff would otherwise have continued studying at TAFE, but it is reasonable to assume, having regard to his work pattern after the accident, that he would have sought to generate some income by undertaking part-time casual work on a regular basis. The first determination required is to assess the period during which the plaintiff would, but for his accident, have continued on a reduced income whilst he pursued his studies at TAFE. The evidence is that the diploma course he had commenced was a one-year course and on that basis I find that he would have returned to his pre-accident work pattern, as demonstrated whilst at Costa Produce One, by December 2006. The second determination required is as to the nett average weekly earnings he would have generated in that period of study. In my assessment, his earnings would have been in the order of $250.00 nett per week.

61. Having regard to these considerations, I would calculate past economic loss on the following basis:

Period: 5.7.2006 - 30.11.2006 (21 weeks)
During this period the plaintiff was totally incapacitated for all forms of gainful employment. His lost earnings in that period may therefore be calculated at $5,250.00 (21 weeks x $250.00).

Period: 1.12.2006 - 1.4.2007 (18 weeks)
During this period the plaintiff remained totally incapacitated for all forms of gainful employment. By this time there would have been two 6 monthly wage increases. I estimate the comparable nett average weekly earnings for this period, but for the accident, at $875.00. The plaintiff’s lost earnings in that period may therefore be calculated at some $15,750.00 ($875.00 x 18 weeks).

Period: 1.4.2007 - 30.6.2007 (13 weeks)
During this period the plaintiff worked at Merck Sharpe & Dohme and earned $600.00 nett per week. His lost earnings in that period may therefore be calculated at some $3,575.00 ($875.00 - $600.00 = $275.00 x 13 weeks).

Period: 1.7.2007 - 31.10.2007 (18 weeks)
During this period the plaintiff was unemployed, except for 2 days. By this time there would have been a further 6 monthly wage increase in the comparable nett average weekly earnings, but for the accident, which I estimate at $900.00. His lost earnings in that period may therefore be calculated at some $16,200.00 ($900.00 x 18 weeks).

Period: 1.11.2007 - 1.12.08 (56 weeks)
During this period the plaintiff worked at Deals Direct. There would have been further 6 monthly increases in the comparable nett average weekly earnings, but for the accident, which I estimate at $920.00 for the period. His actual nett weekly earnings were $540.00, a difference of $380.00. His lost earnings in that period may therefore be calculated at some $21,280.00 ($380.00 x 56 weeks).

Period: 1.11.2007 - 1.12.08 (39 weeks)
During this period the plaintiff worked at Deals Direct and at Office Works. There would have been further 6 monthly increases in the comparable nett average weekly earnings, but for the accident, which I estimate at $940.00 for the period. His actual nett weekly earnings were $564.00, a difference of $376.00. His lost earnings in that period may therefore be calculated at some $14,665.00 ($376.00 x 39 weeks).

62. The total loss of nett earnings to date might therefore be calculated at $76,720.00. To this amount an allowance for occupational superannuation must be added, which I calculate at about $9,200.00, giving a total of $85,920.00. I would round this up to $86,000.00 and allow that amount for past economic loss.

63. Turning now to consider future economic loss, counsel for the defendant did not oppose the plaintiff’s approach of taking the difference between a comparable figure and deducting actual earnings. His submissions were limited to the choice of an appropriate comparable figure, which he contended should be in the order of $640.00 - $700.00 nett per week. I have already concluded that but for the accident the plaintiff would now be earning in the vicinity of $940.00 nett per week. That is an amount only slightly lower than average weekly earnings for males in New South Wales (about $950.00).

64. I am satisfied that the following assumptions about the plaintiff’s future earning capacity accord with his most likely future circumstances but for his injury: he would have worked till the age of 67 in the same or similar employment, at a similar level of base wage. I am not, however, satisfied that he would have continued to perform the same level of overtime or weekend work for the totality of that period: s 126(1) of the Motor Accidents Compensation Act 1999. It would not be appropriate, therefore, to give full weight to the current comparable figure continuously through to age 67. The appropriate reduction for overtime and weekend work is not capable of precise calculation, as the data to make it has not been provided. But having regard to the level of commitment, ambition and application displayed by this plaintiff since his accident, it should be moderate. The figure I consider appropriate upon which to base the calculation of future economic loss is, therefore, $850.00 nett per week.

65. The plaintiff’s current nett average weekly earnings from his employment at Deals Direct and Office Works are $620.00; hence a continuing nett weekly loss of $230.00 over the plaintiff’s working life. To this figure I add occupational superannuation, which I calculate at $85.00, giving a total weekly loss of $315.00.
66. The appropriate multiplier to age 67, which both parties agreed is now the probable date of retirement, is 944.5.

67. The calculation is therefore: 44 years at $315.00 per week by 944.5 equals $297,517.50.

68. The amount of the award of damages for future economic loss that would have been sustained by the plaintiff would in the ordinary course be adjusted by reference to a possibility that the events concerned might have occurred but for his injury. There should, therefore, be a 15% reduction for vicissitudes. Accordingly, I deduct 15%, leaving an amount of $253,000.00, in round figures that I would allow for diminution in the plaintiff’s future earning capacity.

Attendant care and other assistance

69. The plaintiff makes a claim for domestic care and assistance totalling some $533,000.00. I should indicate, at the outset, that I consider this claim exaggerated and inflated, particularly as to the future.

70. There is no issue that the requisite threshold for an award of such damages has been satisfied. Nor is there any real dispute that in the first 4 to 5 months after the accident the plaintiff required a substantial amount of assistance. The big dispute revolves around the extent of any genuine future needs.

71. The claim for past care is $63,621.00, which is split up into various periods. The defendant disputes each period, and relies principally on the expert evidence it tendered on the issue. The arithmetic of the rates is not in issue. The principal challenge is to the hours claimed.

72. The first period in respect of which the plaintiff claims is the period of hospitalisation. He claims 34 days 1.5 hours at 21.80 per hour. The defendant submits that care during this period was not reasonably necessary, and that the hospital staff attended to all his needs. I disagree. In my view there was attention over and above that provided by staff that was reasonably necessary, and a claim is in my view appropriate. I would allow an amount of $1,000.00 for this period.

73. The second period in respect of which the plaintiff claims is the period from discharge up until the end of 2006: 147 days. He claims 8 hours a day personal assistance and 1.5 hours a day domestic assistance, a total of 9.5 hours at $22.00 an hour, producing a total of $30,723.00. The defendant concedes 6 hours a day in total, and in my view that accords with the reality of the situation. On this basis I would allow $20,000.00 for this period.

74. The third period in respect of which the plaintiff claims is for the first half of 2007: 182 days. He claims 2 hours a day personal assistance and 1.5 hours a day domestic assistance, a total of 3.5 hours at $22.50 an hour, producing a total of $14,333.00. The need for care during this period remained moderately intensive for the first 3 to 4 months, having regard to the continuing immobility of the plaintiff, the follow-up operation to remove the tibial nail, and the need to be driven to TAFE. Averaged over the whole 6 months, the claim is in my view reasonable, and I would allow $14,000.00 for this period.

75. The fourth period in respect of which the plaintiff claims is from 1 July 2007 to the date of trial: 763 days. He claims 1 hour a day personal assistance and 1.5 hours a day domestic assistance, a total of 2.5 hours at $22.80 an hour, producing a total of $43,491.00. The claim equates to some 17.5 hours a week. In my view, the plaintiff’s compensable needs during this period have been limited to massage, assistance in moving his music equipment and the odd occasional heavy task, for which I estimate a reasonable allowance as some 10 hours a week. I also take into account the period from trial to date. I would allow $25,000.00 for the period from 1 July 2007 to date.

76. I would therefore allow a total of $60,000.00 for past attendant care and assistance.

77. Turning to the future, the plaintiff makes a claim for $470,085.00. This is based upon an asserted need of 14 hours a week domestic assistance at $33.00 per hour, allowed over 62 years (the multiplier being 1017.5). For the future, it cannot be said that the plaintiff will play in his band for the whole of his life. It is also unlikely that he will receive or require the same level of massage for the whole of his life. He will, however, require about an hour a week on average with domestic tasks, maintenance tasks and gardening tasks of a heavier nature. I estimate the average weekly need over his lifetime for care and assistance at 5 hours a week. On that basis I would allow $165,000.00 for future assistance.

Equipment and additional requirements

78. In the Statement of Particulars, the plaintiff made a claim for future equipment and other additional requirements, including for example house modifications and occupational therapy. Counsel did not address on these claims and they were not included in the Schedule of Damages relied upon. I took these claims to have been abandoned.

Non-economic loss

79. The final head of damages to be considered and assessed is non-economic loss. The threshold requirement for an award of such damages was conceded. Counsel for the plaintiff submitted that an appropriate award would be $266,700.00. Counsel for the defendant conceded a range of $180,000.00 to $200,000.00.

80. The significant factors to be taken into account in my view are as follows. Firstly there is the plaintiff’s age. He is very young and is now faced with a lifetime of restricted movement and discomfort. This will affect his general enjoyment of life and restrict him in the sporting and social activities he would otherwise have enjoyed. There is also the scarring which is severely disfiguring and will also be productive of discomfort, including during intimate activity with his partner, and will need constant attention by way of application of creams and the like. The plaintiff will also have to endure future plastic surgery by way of revision. There is also the embarrassment factor, which in the case of this plaintiff is significant. I also take into account the interference caused to the plaintiff’s study at TAFE.

81. Taking these matters specifically into account in addition to the other usual matters to be compensated by an award of this nature, I allow an amount of $200,000.00 for non-economic loss.

Total damages

82. The calculations as to the damages are set out in the Table below. The table sets out the total amounts for each individual head of damages as I would find them, in summary form.

83. The table:

Heads of Damage	Amount
Past out-of-pocket expenses	$ 68,620.00
Future medical and pharmaceutical expenses	$ 80,000.00
Past economic loss (including superannuation)	$ 86,000.00
Future economic loss (including superannuation)	$253,000.00
Past care	$ 60,000.00
Future care	$165,000.00
Equipment and additional requirements	Nil
Non-economic loss	$200,000.00
Total damages	$912,620.00

Costs

84. Costs are to follow the event and are payable on the ordinary basis, unless some other order is appropriate. There is nothing before me, at this point, to indicate that some other order is appropriate but I will reserve leave to either party to apply in that regard.

85. There will, therefore, be a verdict for the defendant.

86. I direct the entry of judgment for the defendant.

87. I order the plaintiff to pay the defendant’s costs, on the ordinary basis.

88. I give leave to the parties to apply for some other costs order provided any such application is notified to the other party and the court within 7 days, in writing, specifying the order sought.